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HomeMy WebLinkAbout1981-13 - American Cablevision Franchise Agreementf1/l~ . BILL N0. ORDINANCE N0. pll3 FRANCHISE AGREEMENT GRANTING TO AMERICAN CABLEVISION OF KANSAS CITY, INC., ITS SUCCESSORS AND ASSIGNS FOR A PERIOD OF FIFTEEN (15) YEARS FROM AND AFTER THE PASSAGE, ACCEPTANCE AND EFFECTIVE DATE OF THIS AGREEMENT, A FRANCHISE TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE STREETS OF RIVERSIDE, MISSOURI; PROVIDING FOR THE REGULATION OF SAID FRANCHISE; AND PROVIDING FOR PAYMENT TO THE CITY OF A UTILITY TAX. IVHEREAS, the City of Riverside has thoroughly studied the poss- ibilities of awarding a Cable Television System Franchise, and 1VHEREAS, the Board of Aldermen has determined that the granting of a Cable Television Franchise will contribute to the welfare of r r the people of Riverside, Missouri; NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF RIVERSIDE: Section 1. Definitions. For the purposes of this ordinance, the following terms, phrases, ~,ords and their derivations shall have the meaning given herein. lt'hen not inconsistent with the context, words used in the present tense shall include the future, words in the plural number include the singular number, and words, in the singular number include the plural number. The word "~Iiall" shall be construed as mandatory and not simply directive. A. "City" is the City of Riverside, Missouri. B. "Board" shall mean the present governing body of the City or the successor to the legislative powers of the present Board of Alderman. ~' C. "Franchise" shall mean the permission, license, franchise, or authority given hereunder to construct, operate and maintain a cable television system in the City. D. "Grantee" shall mean American Cablevision of I;ansas Cit}•, Inc. or its successors, transferees or assigns, the recipient of the franchise granted herein. E. "Street" shall mean the surface of and the space above and below any public street, road, highway, freeway, lane, path, public way or place, alley, court, sidewalk, boulevard, parkway, drive or other easement now or hereafter held by the City for the purpose of public travel and shall include such 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 Cit}~ and its Grantee to the use thereof for the purpose of installing or transmitting cable transmissions over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as approved by the City as may be ordinarily necessary and pertinent to a cable system. F. "Cable Television System" or "Cable System" shall mean a system in Riverside or antenna coaxial cables, wires, 1+ave guides, or other conductors, equipment or facilities designed, constructed or used for the production of radio, television or other signals, audio, video or other form of electronic or electric interception and receipt of television or radio signals directly or indirectly off the air and the distribution on transmission of sucr signals by -;pans of cable or other similar devices to subscribers. G. "Subscriber" shall mean any person or entity receiving - for any purpose the Cable Television System service of the Grantee herein. H. "Gross Annual Receipts" shall mean all revenue derived directly or indirectly by the Grantee, its affiliates, subsidiaries, parents, and any person in which the Grantee has a financial interest, from or in connection with the operation of a Cable System pursuant to this ordinance; provided, however, that this shall not include any taxes on services furnished by the Grantee herein imposed directl}' upon any subscriber or user by the state, city or other governmental unit. I. "Person" shall mean any individual or association of indi- viduals, or any firm, corporation or other business entity. J. "Channel" means a band of frequencies in the electromagnetic. spectrum which is capable of carrying one audio-video television signal. K. "Public Channel" means the channel or channels on the Cable System hhich are reserved by this contract for carriage of program material provided by third persons at no cost to those persons. L. "Company Channel" means the channel or channels on the Cable System which are resert-ed by Grantee for the carriage of program material originated by the Grantee or by third parties on a leased access basis. M. "D1ay" is permissive. N. "Reasonable Notice" shall be written notice addressed to the Grantee at its principal office in Riverside, D4issouri, or such other office as the Grantee has designated to the City as the address to which notice should be transmitted to it, and the City shall be the City Council, City of Riverside, which notice shall be certified and postmarked not less than four (4) days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. In computing said four (4) days, Saturdays, Sundays and holidays recognized by the City shall be excluded. 0. "Shall" or "Must", each is mandatory and not merely directory. Section 2. Grant of Fifteen-Year Authority. There is hereby granted by the City to the Grantee, the right, privilege and franchise to construct, operate and maintain a Cable System in the streets of the City for a period of fifteen (15) years from and after the passage, acceptance and effective date of this ordinance, subject to the conditions and restrictions as hereinafter provided. Section 3. Authority Not Exclusive. The right to use and occupy said streets for the purposes i;erein set forth shall not be exclusive and the City reserves the right to grant a similar use of said streets to any person at any time during the period of this franchise. Section 4. Franchise Payments. A. The Grantee herein shall pay to the City for the use of the streets and other facilities of the City in the operation of the Cable System and for the municipal supervision thereof during the life of the franchise a sum equal to three percent (30) of the gross annual receipts of the Grantee derived from the operation within the City of Riverside. The Grantee shall file with the City within thirty (30) days after the expiration of each quarter year ending on January 1, April 1, July 1, and October 1, during the period this Franchise shall be in force a financial statement showing in detail the gross annual receipts as defined herein of Grantee during the preceding quarter. It shall be the duty of the Grantee to pay to the City at the time for filing such statement the sum hereinabove prescribed. The Grantee shall also file within ninety (90) days following the conclusion of each fiscal year of the Grantee an annual report prepared and audited by Independent Certified Public _Accountant, showing the yearly total gross receipts and payments to the City and any further relevant financial information in regard to the company as may be required by the City. B. In the event this Franchise should be terminated or forfeited prior to the end of the basic fifteen-year term, the Grantee shall im?"ediatel}~ submit to the City a financial statement prepared as be~ore required, showing the gross receipts of the Grantee for the ti;-.e elapsed since the last period for which the Grantee has paid to the City the required percentage of gross annual receipts, and the Grantee shall pay to the City not later than thirty (30) days following the termination of the Franchise a like percentage of such gross receipts. C. In the event that any payment is not made on or before the applicable date fixed in Subsections (A) and (B) hereof, interest on such payments shall apply from such date at the yearly rate of the maximum then allowed by Missouri law. D. The City shall have the right to inspect the Grantee's records showing the gross receipts from which its franchise payments are computed and the right of audit and recomputation of any and all amounts paid under this Franchise shall be always accorded to the City. No acceptance of any payment by the City shall be construed as a release of or an accord or satisfaction of any claim the City might have for further or additional sums payable under the terms of this ordinance or for any other performance or obligation of Grantee hereunder. E. Payments of compensation made by the Grantee to the City pursuant to the provisions of this ordinance shall not be considered in the nature of a tax, but shall be in addition to any and all taxes tihich are now or hereafter required to be paid by any law of the I7>>;.t=:' States, the State of T`9issouri, or the City. F. Nothing contained in this ordinance shall prohibit the City from collecting other taxes including specifically a utility tax that may be in excess of payments called for in this franchise. The Grantee shall be required to pay only the higher of the City's utility tax on cable t.v. companies (or other applicable tax) or the payments provided for under this ordinance and not both. Other payments other than occasional permits in small amounts will be automatically recoverable in the rate base. Section 5. Security Bond. A. On or before the effective date of this Agreement, the Grantee shall deposit with the City a performance bond in favor of Riverside in the amount of Twenty Thousand Dollars ($20,000.00) as security for the faithful performance by it of all the provisions of this agreement, and compliance with all orders, permits and directions of any agency of the City having jurisdiction over its acts or defaults under this ordinance, and the payment by the Grantee of any claims, liens and taxes due the City which arise by reason of the construction, operation or maintenance of the Cable System. Any income earned by the security bond shall be credited to the franchise payments payable to the City by the Grantee under Section 4 (A) here- of. Any income in excess of the gross receipts tax shall be the property of the City. It shall be the responsibility of the Grantee to properly credit the income on the security bond to the Grantee. The bond shall be in the form of such surety as may be approved by t:~.e C?ty's attcrney. B. The security bond deposited pursuant to this section shall become the property of the City in the event that this franchise is cancelled by reason of the default of the Grantee. The Grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit with the City at the expiration of the term of this franchise, provided that there is then no out- standing default on the part of the Grantee. C. The rights reserved to the City with respect to the security- fund are in addition to all other rights of the City, whether reserved by this ordinance 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 City may have. Section 6. Insurance. At all times during the term of this Franchise, Grantee shall ci;tain, pay all premiums for and file with the City executed duplicate copies and receipts evidencing the payment of premiums for the follo~;- ing: A. .4 general comprehensive public liability insurance polic}' indemnifying, defending and saving harmless the City, its officers, boards, commissions, agents and employees, from any and all claims by any person whatsoever on account of injury to or death of a person or persons occasioned by the operations of the Grantee under the Franchise herein granted, or alleged to have been so caused or occurred, with a minimum liability limit of $500,000 for personal injury or death to any one person and $2,000,000 for personal injury or death of any two or more persons in any one occurrence. B. Property damage insurance indemnifying, defending and saving harmless the City, its officers, boards, commissions, agents and employees, from and against all claims by any person whatsoever for property damage occasioned by the operation of the Grantee under the Franchise herein granted or alleged to have been so caused or occurred, with a minimum liability of $500,000 for property damages resulting from any one incident. All of the foregoing insurance contracts shall be in form satis- factory to the City's Attorney and shall be issued and maintained in companies acceptable to the City and they shall require ten (10) days written notice of any cancellation to both the City and the Grantee herein. Section 7. Indemnity. Grantee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, its officers, boards, commissions and employees against any and all claims, suits, actions, liability and judgments for damages (including but not limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the City in connection therewith): A. To persons or property, in any i,'ay arising out of or throu~~'r: the acts or omissions of Grantee, its servants, agents or employees or to which Grantee's negligence shall in any way contribute; B. Arising out of any claim for invasion of the right of privacy, 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 corporation; and C. Arising out of Grantee's failure to comply with the pro- visions of any federal, state, or local statute, ordinance or regulation applicable to Grantee in its business hereunder. 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 proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent the City from cooperating with Grantee and part- icipating in the defense of any litigation by its own counsel at its sole cost and expense. No recovery by the City of any sum by reason of the security fund required in Section 5 hereof shall be any limitation upon the liability of the Grantee to the City under the terms of this section, except that any sum so received by the City shall be deducted from any recovery which the City might have agair_st the Grantee wider the terms of this section. Section 8. Books and Records of Grantee. ~' A. The Grantee- shall file with the City Clerk true and accurate maps or plats of all existing and proposed installations upon the streets. These maps and plats shall conform to the requirements of the City and shall be kept continuously up-to-date. B. The Grantee shall file annual with the City within ninety (90) days after the end of the report to its stockholders, if report shall be submitted with the City shall request with re income and expenses related to the City. Grantee's fiscal year, a copy of its it prepares such a report. This such other reasonable information as spect to the Grantee's properties, is cable television operations within C. The Grantee shall continually keep on file with the City Clerk a current list of its shareholders holding over five (5) per- cent of the outstanding stock showing the amount of such ownership and officers kith their current addresses. D. All books and records of the Grantee concerning its operation within the City shall be made available for inspection and audit by the City 1+-ithin a reasonable time after any request for such inspection or audit shall be made. Section 9. Rates. .A. By its acceptance of this Franchise, the Grantee agrees that its rate for services provided herein shall be the same as rates for equivalent services provided in the City of }:ansas City, ?,issouri. the Grantee's rates and charges to conform to the provisions of Subsection B hereof and, for this purpose, the Council may deny increases or order reductions in any such rates and charges when it determines in the absence of such action on its part, the Grantee's rates and charges or proposed rates and charges will not conform to said Subsection B. B. The rates and charges for services provided by Grantee hereunder shall be fair, reasonable and non-discriminatory. The Grantee shall be allowed to increase its rates for basic services if it can demonstrate to the City's satisfaction that they cannot make a fair return on their investment without a rate increase. The parties shall take into account the income derived by the Grantee from all phases or types of services in addition to revenues from the basic subscriber services. However, only the rates on basic subscriber services shall be subject to regulation hereunder. The value assigned to goodwill, the franchise or prospective profits shall not be recognized by the City in the assets considered for the rate-making base. C. Unless and until otherwise changed by the City council, the rates for basic service hereunder shall be as follows: 1. Residential rates: Installation 'Monthly a. Basic cable service, first outlet $20.00* X7.50 b. Basic cable service, extra outlet $10.00* X2.50 B. The rates and charges for services provided by Grantee hereunder shall be fair, reasonable and non-discriminatory. C. The initial rates for basic service hereunder shall be as follows: 1. Residential rates: Installation Monthly a. Basic cable service, first outlet $20.00* $7.50 b. Basic cable service, extra outlet $10.00* $2.50 c. FM service, without cable outlet $20.00* $7.50 d. FM service, with cable outlet $10.00** $2.50 e. Antenna switch At cost f. Reconnect $10.00 -- g. Relocate $10.00 -- h. Collection charge $ 5.00 -- * A'aived during first 30 days service is available, and may be waived or reduced throughout the term of the franchise for marketing purposes on a non-discriminatory basis. X* h~aived if done at the same time as another connection. 2. Commercial rates: To be negotiated, but not to exceed prevailing residential rates. D. No charge shall be made to the City for its use of the Public Access Channel. Studio, equipment and channel usage for public channels shall be provided at no charge subiect to availabili~~•. E. There 1,~ill be no monthly charge for one basic cable service drop for each governmental or educational facility connected to the cable system. Such facilities shall be installed without charge if they are located within three hundred (300) feet of the cable system. Installations over three hundred (300) feet from the cable system will be installed for a predetermined time and material charge. F. Initial rates for pay cable shall be as follows: 1. Installation charge $20.00 This fee will be waived if done at the same time as the cable connection. 2. Service charge: Home Box Office $ 6.95/month Showtime $ 7.95/month Cinemax $ 7.95/month 3. Parental Guidance Key $ 1.00/month 4. Channel selector $10.00 deposit Section 10. Accounting Standards. A. All financial reports prepared by the Grantee and all records maintained by the Grantee shall conform to generally accepted accounting principles applied on a consistent and fair basis. B. The following accounting transactions between the Grantee, tl~e parent corporation and third party contractors of the s}-stem shall be fully disclosed to tl~e City and subject to the City's review and concurrence: all accounting assumptions and treatment, including, but not limited to, rates of depreciation; capitalizatior. and expensing of costs; determination of capital structure; and amorti=anon of indebtedness. Section 11. Conditions of Street Occupancy. A. All transmissions and distribution structures, lines and equipment erected by the Grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places and to cause minimum inter- ference with the rights and reasonable convenience of property owners who join any of said streets, alleys or other public ways and places. The cable television system shall be constructed and operated in compliance with all adopted local and national construction codes. B. Except when absolutely necessary to service a subscriber and not simply because it shall be more convenient, economical or profitable for the Grantee to so operate, and then only when expressly permitted in writing by the City under such conditions as it shall prescribe for the public welfare, the Grantee shall not erect or auth- orize or permit others to erect any poles or other facilities withir. the streets of the City for the conduct of its cable television system, but shall use the existing poles and other equipment of the appropriate electrical power and telephone or other utility companies under such terms and agreements as the Grantee shall negotiate with these companies. C. Should the Grantee be required to place any lines or other eo~uipment on any boulevard, parkway, or other property under control of the City, the manner of placement and location thereof shall be subject to the control of said City. D. Should the Grantee be required, in the conduct of its busi.,es to locate property within the streets of the City other than propert~~ which may be attached to utility poles, then in that event before the ~, Grantee shall install or shall permit any other person to install for Grantee, any of such property in the street the nature of such property shall be disclosed to the City for its approval as to the need thereof and as to the location within the street and then only under such conditions as it shall prescribe concerning such location or installation. E. Whenever the City, County or State of Missouri shall require the relocation or reinstallation of any property of the Grantee in any of the stneets of the City, it shall be the obligation of the Grantee upon notice of such requirement to immediately remove and relocate or reinstall said property as may be reasonably necessary to meet the requirements of the City, County, or State which such relocation, removal ~r reinstallation by the Grantee shall be at the sole cost of the Grantee. In the event that the Grantee shall fail to relocate as required herein then the City may relocate at the cost of the Grantee. F. 1henever, in any place i,-ithin the City, the electric and telephone utilities shall be located underground, it shall be the obligation of the Grantee to locate or to cause its property to be located underground within such places. If the electric and telephone utilities shall be located underground in any place with- in the City after the Grantee shall have previously installed its property, nevertheless, the Grantee shall, at the same time or imuned- iately thereafter, remove and relocate its property also underground in such places. If the Grantee shall in any cause be unable for operational reasons only to locate or relocate any part of his property underground, then in that event the City upon being satisfied as to the facts thereof may permit such property to remain above the ground even though other facilities may be placed underground in the area. However, any such permission shall be upon such conditions as the City may require for the public welfare. Any facilities of the Grantee placed underground at the property owner's request, in an area where electric and telephone facilities are aerial, shall be installed with the additional expense paid by the property owner. G. In case of disturbance of any street caused by the Grantee, the Grantee shall at its own cost and expense and in a manner approved by the City, replace and restore such street, in as good a condition as before the work involving such disturbance was done. H. The Grantee shall upon the request of any person holding a building moving permit issued by the City, temporarily raise or loi,er its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of the wires shall be paid by the person requesting the same and the Grantee shall have the authority to require such payment in advance. The Grantee shall be given not less than seventy-two hours advance notice to arrange for such temporary wire changes. I. Nothing contained in this ordinance shall alleviate the obligation of the Grantee to make full compliance with all local ordinances including specifically those ordinances relating to excavating in and through any street, sidewalk, alley or public place in the City. Section 12. Initial System Installation Schedule. A. Grantee shall construct the cable system to each existing house within the City except those houses south of 9 Highway. If future census information identifies new houses North of 9 ]highway the Grantee shall within a reasonable time provide cable service to such houses. B. Within thirty (30) days of the effective date of this ordinance, the Grantee shall diligently pursue acquisition of all nnecessary certificates, licenses and agreements and permits which are required to construct a cable television system in the City. hithin sixty (60) days of receipt of such certificates, licenses and agreements and permits the Grantee shall provide the City wit;: plans indicating expected dates of installation of various parts of the cable system and shall comrience construction of the cable television system. Thereafter, construction shall proceed so as tto make service available throughout the City, as defined in Section '_2 at the earliest possible time. C. The construction of the cable system shall begin no later than nine (9) months after execution of the rranchise and shall be cc:~:pieted within six (6) months after construction begins. D. In addition to charges against the security fund authorized~~= in other sections of this ordinance, penalty charges for non-perform- ante shall be deductible from the cash bond and shall be chargeable as follows: 1. For failure to begin construction nine (9) months from execution of franchise $100.00 per day 2. For failure to complete construction and having the system in full operation six (6) months after construction begins 500.00 per day. E. The construction of the cable system and the activation thereof, shall not be deemed to be in default where delays are not caused by the Grantee and are due to war, insurrection, civil disturbance, strikes, lock-outs, riots, floods, governmental restrictions and priorities, embargoes, litigations, tornados, unusually severe weather or acts or failure to act of the City or any other governmental agency or entity. The time of performance Hereunder shall be extended for a period of any delay or delays caused or resulting from any of the foregoing causes only with the caritten consent of the City, which consent shall not be unreasonably withheld. Section 13. System Extension to New Subscribers. It is the policy of the City to make the cable television system available to all existing dwelling units North of 9 Highway. The Grantee shall extend said system to all areas North of 9 Highc,~ay ~,-ithin the City of Riverside. Section 14. Type and Capacity of Equipment to be Installed. A. The cable system shall be constructed as provided in the Grantee`s application to the City of Riverside, Missouri. B. The cable system shall consist of (1) cable that shall be the primary distribution system for all regular cable services. It is anticipated that this system will have approximately 18 miles of plant, with thirty-four (34) downstream channels with use of a converter supplied by Grantee within the frequency spectrum of 50-300 ML~z and three (3) upstream channels within frequency spectrum of 5-30 MHz. All of the channels will be fully activated throughout the system. C. The cable system will be constructed to the highest of standards and shall meet the following minimum requirements: Signal to noise ratio 47 dB Signal to second order distortion 60 dB Signal to total harmonic distortion 52 dB Signal to crossmodulation 52 dB Hum 2 Gain-frequency response 3.5 dB Echo "P Mertz Visibility Criterion" Standby power will be provided for the full cable system. Section 15. Operational Standards. The Cable System shall be installed and maintained in accordance with the highest accepted standards of the industry to the end that the subscriber may receive the highest and most desirable form of `' service. A. In determining satisfactory compliance with the provisions of this section, the following, among other things, may be considered: 1. That the system is installed and remains capable of using all band equipment and of passing the entire VHF and FM spectrum and that it shall have the further capability of converting UHF for the distribution to subscribers on the VHF band; and 2. That the system as installed is capable of transmitting and passing the standard color television signals without the intro- duction of material degradation on color fidelity and intelligence; and 3. That the system is designed and rated for 24-hour-a day continuous operation; and 4. That the system is capable of and will produce a picture upon any subscriber's television screen in black and white or color (provided the subscriber's television set is capable of producing a colored picture) that is, undistorted and free from ghost images and accompanied by proper sound, assuming typical standard production television sets in good repair, and that the television transmission is satisfactory, in any event, the picture produced shall be as good as the state of the art allo~,~s; and 5. That the system transmits or distributes signals of adequate strength to produce good pictures with good sound at all television receivers of all subscribers without causing cross- modulation in the cables or interfering with other electrical or electronic systems or the reception of other television or radio receivers in the area not connected to the system. 6. The Grantee shall carry the signals of each local television station on a single channel and all local VHF stations shall be carried on a channel numbered the same as assigned to them by the FCC, unless such stations request that they be carried on a different channel. Local UHF stations shall be carried on the number of the station's choice where it is reasonably practicable for the Grantee to use such number. No change from the initial channel assignment for any local station shall be made without the station's permission. 7. The Grantee shall furnish to its subscribers the signals received from local broadcast stations at the time of broad- cast by said station. No part of said local stations' signals shall be altered, deleted or modified in any respect by the Grantee 8. The Grantee shall make available at cost to all sub- scribers requesting them such switching devices as are necessary to permit a subscriber to use his o~;n antenna. Such devices shall provide the best available signal quality consistent with the reasonable technical state of the art and such devices shall not result in unreasonable interference to signals received using a subscriber owned antenna. No subscriber owned antennas shall be removed by the Grantee except upon the written request of the owner. B. The Grantee shall render efficient service, make repairs promptly and interrupt service only for such good cause and for•the shortest time possible. Such interruptions insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system. C. The Grantee shall have a listed telephone capable of receiving calls 24 hours per day, and be so operated that complaints and requests for repairs or adjustments may be received at any time. D. It shall be the right of all subscribers to receive all available services 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 cable system, or the City terminates or fails to renew this franchise, or the City elects to purchase the cable system, the Grantee shall do everything in its power to ensure that all subscribers receive continuous, uninterrupted service regardless of circumstances. In the event of purchase by the City, or a change of Grantee, the current Grantee shall cooperate with the City to operate the cable system for a temporary period in maintaining continuity of service to all subscribers. Section 16. Supervision by the City. A. The Grantee shall construct, operate and maintain the Cable Television System, subiect to the supervision of all of the t authorities of the City who have jurisdiction in such matters and `- in strict compliance with all laws, ordinances, and departmental rules and regulations affecting the Cable Television System. B. The Cable Television System and all parts thereof, shall be subject to the right of periodic inspection by the City. C. The City may, from time to time, issue such reasonable rules and regulations concerning the construction, operation and maintenance of the Cable System as are consistent with the provisions of this ordinance. D. If at any time the powers of the Board of Aldermen or any agency or official of the City are transferred by law to any other board, authority, agency, or official, then such other board, authority, agency, or official shall have the powers, rights and duties previously vested under this contract or by law in the Board of Aldermen or any agency or official of the City. E. If the City determines giving due regard to technological limitations, that any part or all of the Cable System should be improved or upgraded (including without limitation the increasing of channel capacity and the furnishing of improved converters), the}' may by ordinance, order such reasonable improvements or upgrading of the Cable System to be effected by the Company within a reasonable time tl;ereafter. Provided however, technical improvements will be made only in concert with the Kansas City System. Section 17. Grantee's Duty to Remove its Properties From the ., Public Streets. A. Following the Grantee's commencement of service through and over its Cable System, the Grantee shall promptly remove from the public streets where its properties are located, all or any part of its facilities so located, when one or more of the following enumer- ated conditions occur: 1. The Grantee ceases to use any part, or all, of its Cable System for an unreasonable period of time; 2. The grantee fails to construct said system as herein- before and hereinafter provided; 3. The franchise is terminated or revoked pursuant to notice as provided in Section 29 hereof. Provided that the Grantee shall be entitled to receive notice in writing from the City setting forth one or more of the occurrences hereinafter provided, and that the Grantee shall have ninety (90) days from the date upon which said notice is received to remove said properties as hereinabove required. B. The City is herein and hereby authorized to enforce the provisions of this section of this ordinance as hereinafter provided: 1. The City shall notify the Grantee in writing of any occurrence provided for in this section, for which said franchise may be terminated, forfeited, revoked, or declared void by the City,. and that within ninety (90) days following receipt of said notice, - the Grantee shall remove from the streets of the City upon, over, and under which its properties are located, all of said properties unless otherwise authorized and permitted by the City. Z. The City may declare abandoned any property of the Grantee remaining in place ninety (90) days after notification from the City as hereinabove provided, and the same shall be considered permanently abandoned property unless the City extends the time for removal of said property for a period not to exceed thirty (30) additional days. C. Any property abandoned by t};e Grantee as hereinabove or hereinafter provided shall become the property of the City and the Grantee agrees to execute and deliver an instrument in writing, transferring its ownership interest in any such property to the City; provided that any notice given the Grantee by the City, as provided in this section, shall be deemed notice to any other persons claiming interest in said property of the Grantee anal said persons shall be subject to all the provisions hereinbefore provided. Section 18. No right of Property. Anything contained herein to the contrary, notwithstanding the award of any franchise hereunder, shall not grant in part to the Grantee any right of o~,nership of .streets or City o1+~ned property. Section 19. Off-The-Air-Programming. The Grantee shall transmit or distribute the programming of any television broadcasting station whose broadcasting tower is now or shall hereafter be located within 35 miles of the Kansas City, Missouri, "Reference Point" set forth in Section 76.53 of the Rules and Regulations of the Federal Communications Commission (47 C.F.R. Section 76.53) ("Local Stations"). In addition, the Grantee may transmit or distribute any other programming of any television broadcasting station whose carriage is specifically authorized by the Rules and Regulations of the Federal Communications Commission ("Distant Stations") provided that where such specific authorization is limited to only a portion of the franchise area then carriage of the subject signal shall like- wise be so limited. The purpose of allowing the Grantee to transmit and distribute the programming of Distant Stations is to provide the residents of Riverside with an opportunity to view programs different from those broadcast by the Local Stations. The Grantee shall delete from its distribution of Distant Stations any programs being simultaneously broadcast by the Local Stations. If the Federal Government has preempted or in the future shall preempt the field of cable television signal carriage regulation then the foregoing provisions shall be null and void, provided ho~cever that the provisions herein shall remain in full force and effect during any lapse in, or upon the terminations of, such Federal preemption. Section 20. Channels to be Provided. A. Public Access Channel. The Grantee shall provide at least one (1) dedicated, non-commercial public access channel, associated production equipment and necessary staff production assistance to be made available to the public at no charge on a first come, first served basis. Hours of availability for the use of such channel, if known, shall be specified in the application for franchise. B. No charge shall be made to the City for its use of the Government Access Channel. C. There will be no monthly charge for one basic cable service drop for each governmental or educational facility connected to the cable system. Such facilities shall be installed without charge if they are located within three hundred (300) feet of the cable system. Installations over three hundred (300) feet from the cable system will be installed for a predetermined time and material charge. D. The Grantee shall incorporate into its facilities, the capability for an emergency override audio alert whereby a designee of the City, in times of emergency, may introduce an audio message on all Broadband Telecommunications Network channels simultaneously. The Grantee shall provide, in a location to be designated by the City, all equipment necessary for use of the emergency alert system. Section 21. Channel Line-Up. A. The basic cable system package will include the following thirty-two channels of service Cable Channel # Service 2 Program Guide 3 Future Services 4 WRAF, Kansas City 5 KCMO, Kansas City 6 Christian Broadcasting Network 7 Greater Kansas City Educational Access 8 U.S.A. Network - Madison Square Garden Sports/ Satellite Program Network/Black Entertainment Televisi 9 KMBC, Kansas City 10 UPI Newstime 11 Community Information Channel 12 Children's Channel/Nicklodeon 13 Greater Kansas City Cultural Channel 14 ESPN 15 KYFC, Kansas City 16 Future Service 17 WTBS, Atlanta 18 PTL 19 KCPT, Kansas City 20 Greater Kansas City Public Access Channel 21 Greater Kansas City Higher Education Channel 22 Showtime 23 Future Services z4 Home Box Office 25 Greater Kansas City Government Access 26 Cable News Network 27 AP Sports/Finance 2g WGN, Chicago 29 Greater Kansas City Health/Medical 30 Missouri/Kansas State Newswire $ National/ International News 31 Cinemax 32 Spanish International Network 33 Color Weather Radarscope/Updated Time and Weather 34 Greater Kansas City Leased Access 35 KBMA (41) 36 Color Bars B. Optional channels to be provided at an extra charge shall be as follows: Cable Channel # Service 24 Home Box Office 31 Cinemax 22 Showtime -- FM Radio Services C. The requirement that the Grantee provide any or all of the services as specified in subsections A and B hereof is predicated upon the receipt of necessary government licenses and permits, the obtain- ment of reasonable contracts from program suppliers, and the continued existence of the signals themselves. - The Grantee may add new services to those listed in Section 21A and 21B as it sees fit, and may delete existing services, if necessary, to make room for new services that it feels would better serve the subscribing public. However, in no case will the public channels as specified in subsection D hereof be deleted without prior approval from the City and in no case will the grantee delete services it is required to carry by federal regulation. D. Cable Channels 7, 20, 25 and 34 are designated as public channels for the programming as specified above. The use of production equipment, facilities and production assistance will be provided by Grantee free of charge to all governmental entities, non-profit organizations and individuals producing programming selected for cablecasting on those channels. The Grantee shall establish reasonable rules and regulations governing access to facilities, requirements for operators and so on. Section 22. Removal of Facilities Upon Request. Upon termination of service to any subscriber, the Grantee shall promptly remove all of its facilities and equipment from the premises of such subscriber upon his written request. There shall be no fees to subscribers for the disconnection of services or the removal of equipment. Section 23. Emereency Use of the Facilities. In the event of an emergency or disaster, the Grantee shall, upon request of the City, make available at no cost its facilities to the City for emergency use during the period of such emergency or disaster and shall provide such personnel as necessary to operate properly under the circumstances. In emergency situations not common to the Greater Kansas City area, the City will be given reasonable opportunity to communicate said emergencies to Riverside residents. There will be no emergency access equipment in Riverside and emergency access shall be accomplished by contact to the D4anager or other person in charge of American Cablevision's office or facilities in Kansas City, Missouri. Section 24. Compliance with State and Federal Laws. Notwithstanding any other provisions of this Franchise to the contrary, the Grantee shall at all times comply with all laws and regulations of the 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 Board of Aldermen determines that a material provision of this ordinance is affected by such subsequent action of the State or Federal Government, the Board of Aldermen 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. Section 25. Filing Communications with Regulatory Agencies. Copies of all petitions, applications and communications submitted by the Grantee or its parent corporation, if applicable, to the Federal Communications Commission, Securities and Exchange Commission or any other Federal or State regulatory commission or agency having juris- diction in respect to any matter directly affecting cable television operations shall also be submitted simultaneously to the City by filing the same with the City. Copies of responses from the regulatory agencies to the Grantee shall be furnished by Grantee to the City on receipt. Section 26. Restrictions on the Grantee, Its officers and Directors Neither the Grantee nor any officer or director of the Grantee shall hold directly or indirectly any stock or other beneficial ownership interest in any other company owning or operating: any radio or tele- vision broadcast station whose signals are carried on the Cable System on a regular basis; any television broadcast network other than a network consisting entirely or substantially of community antenna television systems; or, any newspaper or magazine whose principal circulation market is in the Kansas City D9etropolitan Area, as defined by the United States Department of Commerce or its successor. O~,ner- ship by an officer or director of less than one percent (1 a) of the oustanding stock of any company whose securities are listed or admitted to trading on a national securities exchange shall not be deemed in violation of this section. No officer or director of the Grantee shall be an officer or director of any company owning or operating businesses of the types heretofore mentioned within the Kansas City Metropolitan Area. Section 27. Restrictions Against Assignment. A. This Franchise shall not be assigned or transferred, either in whole or in part, or leased, sublet, or mortgaged in any manner, nor shall title thereto, either legal or equitable or any right, interest or property therein, pass to or vest in any person, either by the act of the Grantee or by operation of law, without the consent of the Board of Aldermen. The granting, giving or waiving of any one or more of such consents shall not render unnecessary any subsequent consent or consents. B. The consent or approval of the Board of Aldermen to any assignment, lease, transfer, sublease, or mortgage of this Franchise shall not constitute a waiver or release of the rights of the City in and to the streets. C. The Grantee shall promptly notify the City of any actual proposed change in, or transfer of, or acquisition by any other part of, control of the Grantee. The word "control" as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised. Every change, transfer or acquisition of control of the Grantee shall make this Franchise subject to cancellation unless and until the Board of Aldermen shall have consented thereto. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the Board of Aldermen may inquire into the qualifications of the prospective controlling party, and the Grantee shall assist the Board of Aldermen in any such inquiry. If the Board of Aldermen does not schedule a hearing on the matter within sixty (60) days after notice of the change or proposed change and the filing of a petition requesting its consent, it shall be deemed to have consented. In the event that the Board of Aldermen passes an ordinance denying its consent and such change, transfer or acqusition of control has been effected, the Board of Aldermen may cancel this Franchise unless control of the Grantee is restored to its status prior to the change, or to a status acceptable to the Board of Aldermen. D. Nothing in this section shall be deemed to prohibit a mortgage or pledge of the Cable System eauipment, or any part thereof, or the leasing by the Grantee from another person of said Cable System equipment, or part thereof, for financing purposes or othert~ise. Any such mortgage, pledge or lease shall be subject and subordinate to the rights of the City under this contract or applicable law. Section 28. Prohibited Acts. ~- A. The Grantee shall not, as to rates, charges, service facilities, rules, regulations or any other respect, make or grant any undue preference or advantage to any person, or subject any person to any undue prejudice or disadvantage, provided, however, connection and service charges may be waived or modified during prornotional campaigns of Grantee. B. Grantee shall strictly adhere to the equal employment opportunity requirements of the FCC, as expressed in the Cable Television Rules, 47 C.F.R. (76.311) and as amended from time to time. C. Neither the Grantee nor the City shall tap or monitor or arrange for the tapping or monitoring, or permit, either expressly or impliedly, any other person to tap or monitor any cable, line, signal imput device or subscriber outlet or receiver for any purpose whatsoever, without the express permission of the subscriber, provided, however, that the Grantee shall be entitled to conduct system-wide or indi~Tidually addressed "sweeps" for the purpose of verifying system integrity, controlling return-path transmission, or billing for pay services. D. The Grantee shall not, without the specific authorization of the subscriber involved, sell, or otherwise make available to any person, lists of the names and addresses of such subscriber, or any list which identifies the reviewing habits of any individual sub- scriber, except as the same is necessary for the construction, marketing, and maintenance of the Grantee's facilities and services hereunder and the concomitant billing of subscribers for said services, or as the same may be necessary to give leased access channel users sufficient and pertinent information to make full use of said leased access channel. The Grantee shall not provide information concerning the viewing habits of identifiable individual subscribers to any person, group or organization for any purpose whatsoever. Section 29. Revocation of Franchise. In addition to all other rights and powers reserved or pertaining to the City, the City reserves as an additional and as a separate and distinct remedy the right to revoke this Franchise and all rights and privileges of the Grantee hereunder in any of the following events or for any of the following reasons: A. The Grantee shall by act or omission violate any term or condition of this ordinance and shall within thirty (30) days follow- ing written demand by the City to effect such compliance fail to do so; or B. Any provision of this ordinance shall be finally adjudged by a court of law invalid or unenforceable and the Board of Aldermen further finds that such provision constitutes at that time a consider- ation material to the continuance of the Franchise herein granted (In the event the Board does not make such a finding within 120 days after any such judgment shall finally become finding, the remaining portions of this ordinance shall remain in full force and effect as if this ordinance had been enacted without the invalid portion thereof); or C. The Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt; or all or part of Grantee's facilities should be sold under an instrument to secure a debt and are not redeemed by Grantee within thirty (30) days from said sale; or D. The Grantee attempts to or does practice any fraud or deceit in its conduct or relations under this Franchise. No such renovation shall be effective unless or until the Board of Aldermen shall have adopted an ordinance setting forth the cause and reason for the renovation and the effective date thereof, which ordinance shall not be adopted i~~ithout thirty (30) days prior notice thereof to the Grantee and an opportunity for the Grantee to be heard upon the proposed adoption of said proposed ordinance. In the event the renovation as proposed in said ordinance depends upon a finding of fact, such finding of fact as made by the Board of Aldermen after the hearing provided for, if requested by the Grantee, shall be conclusive.' The Grantee shall not be declared in default or be subject to any sanction under any provision of this contract in any case in which the performance of any such provision is prevented for reasons beyond its control. Section 30. Grantee to Have No Recourse. Except as expressly provided in this Franchise, the Grantee herein shall have no recourse whatsoever against the City for any loss, cost or expense or damage arising out of any of the provisions of requirements of this Franchise or because of the enforcement there- of by the City, nor for the failure of the City to have the authority to grant all or any part of this Franchise. The Grantee expressly acknowledges that, upon accepting this Franchise, it did so relying upon its own investigation and understanding of the power and authority of the City to grant this Franchise. The Grantee by acceptance of this Franchise acknowledges that it has not been induced to enter into this Franchise by an}~ understanding or promise or other statement, whether verbal or written, by or on behalf of the City or by any other third person concerning any term or condition of this Franchise not expressed herein. The Grantee further acknowledges by the acceptance of this Franchise that it has carefully read the terms and conditions hereof, and is willing to and does accept all of the risks of the meaning of such terms and conditions and agrees that, in the event of any ,' ambiguity therein or in the event of any other dispute over the meaning thereof, the same shall be construed strictly against the Grantee and in favor of the City. Section 31. Failure of City to Enforce This Franchise, No' Waiver of the Terms Thereof. The Grantee shall not be excused from complying with any of the terms or conditions of this Franchise by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. Section 32. Time Essence of this Agreement. Whenever this Franchise shall set forth any time for any action to be performed by or on behalf of the Grantee, such time shall be deemed of the essence and any failure of the Grantee to perform within the time allotted shall always be sufficient grounds for the City to revoke this Franchise. Section 33. Grantee Will Not Contest Validity of Franchise, Incorporation of Application Provisions. A. The Grantee agrees by the acceptance of this Franchise that it will not at any time set up against the City in any claim or proceeding any condition or term of this Franchise as unreasonable, arbitrary or void or that the City had no power or authority to make to determine whether the operator has satisfactorily performed his obligations under the Franchise. To determine satisfactory perform- ance, the Board shall consider technical developments and performance of the systems, programming, other services offered, cost of services, and any other particular requirements set in the agreement; also, the Board shall consider the Grantee's annual reports made to the City and the FCC; industry performance on a national basis shall be considered. Provisions shall be made for community comment. 3. A four month period shall be provided to determine the Grantee's eligibility for renewal. 4. The Board shall then prepare within two months any amendments to the Franchise Agreement that it believes necessary. 5. If the Board finds the Grantee's performance satis- factory, a new Franchise may be granted pursuant to the agreement as amended for a period of fifteen (15) years. Irrespective of the type and quality of the performance of the Grantee, the City is under no obligation whatsoever to reissue a Franchise to the Grantee. 6. In the event the current Grantee is determined by the Board to have performed unsatisfactorily, new applicants shall be sought and evaluated and a Franchise award shall be made by the Board accordingly. Section 36. Rights Reserved to the City. ttiithout limitation upon the rights titihich the City might otherwise such term or condition, but shall be required to accept the validity of the terms and conditions of this Franchise in their entirety. B. The provisions of the Official Application Forms for Supplyin Cable Television Services as submitted to the City Clerk by the Grantee in the process to induce the City to award this Franchise to the Grantee are hereby incorporated herein by reference to the extent that the terms thereof are not inconsistent with any term or provision of this ordinance. In the event of any such conflict or inconsistency, the terms and provisions of this ordinance shall prevail. Section 34. Equal Opportunity Employment and Affirmative Action Programs. The Grantee shall comply with all existing and future ordinances relating to equal employment opportunities. .. Section 35. Franchise Renewal. A. This Franchise may be renewed by the City upon application of the Grantee pursuant to the procedure established in subsection B of this section, and in accordance with the then existing rules of the Federal Communications Commission and applicable law. B. 1. At least thirteen months prior to the expiration of Franchise, Grantee shall inform the Board in writing of its intent to seek renewal of the Franchise. 2. After giving public notice, the Board shall proceed. ~- ,~ to determine whether the operator has satisfactorily performed his obligations under the Franchise. To determine satisfactory perform- ance, the Board shall consider technical developments and performance of the systems, programming, other services offered, cost of services, and any other particular requirements set in the agreement; also, the Board shall consider the Grantee's annual reports made to the City and the FCC; industry performance on a national basis shall be considered. Provisions shall be made for community comment. 3. A four month period shall be provided to determine the Grantee's eligibility for renewal. 4. The Board shall then prepare within two months any amendments to the Franchise Agreement that it believes necessary. 5. If the Board finds the Grantee's performance satis- factory, a new Franchise may be granted pursuant to the agreement as amended for a period of fifteen (15) years. Irrespective of the type and quality of the performance of the Grantee, the City is under no obligation whatsoever to reissue a Franchise to the Grantee. 6. In the event the current Grantee is determined by the Board to have performed unsatisfactorily, new applicants shall be sought and evaluated and a Franchise award shall be made by the Board accordingly. Section 36. Rights Reserved to the City. 14ithout limitation upon the rights which the City might otherwise `. the City does hereby expressly reserve the following rights, powers and authorities: A. To exercise its governmental powers now or hereafter to the full extent that such powers may be vested in or granted to the said City. B. To determine through its Board of Aldermen any question of fact relating to the meaning, terms, obligations or other factors of this Franchise. C. To grant additional Franchises within the City to other persons for the operation of a cable system under any conditions whatsoever acceptable to the City, notwithstanding the same might be alleged to be more favorable than the rights granted herein. D. To exercise any other rights, powers or duties required or __ authorized, the City under the Constitution of the State of Mi~'souri, the laws of Missouri. Section 37. Acceptance. This Agreement and its terms and provisions shall be accepted by the Grantee in writing, executed and acknowledged by it as a deed is required to be, and filed with the City. Section 38. Ordinance Subject to Approval of the Voters. This ordinance is subject to approval of the voters of the City of Riverside, Missouri, at an election to be held June , 1981. The ballots shall be substantially the following form: ~~ "For Cable Television Franchise Ordinance No. ~~ "Against Cable Television Franchise Ordinance No. "(make your choice by marking an X in the appropriate box)" If a majority of the qualified voters at said election on said special proposition shall vote in favor of the ratification of this ordinance, then the same shall be binding and in full force and effect. -.. AMERICAN CABL~VIS~ION ,OF KAN~S CITY, INC A corporate J + By: ~ Tit 1 e : ~'~c`vi.6~ ~ ~OR/'~~' /LE RE~iv~i ATTEST• ecret ry PAS THIS ~~/o~ DAY OF ATTEST: CI Y CLE K APPROVED THIS / ~~ DAY 0 19 ~' / .