City of Rolla, Missouri
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Rolla, MO 65401

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Chapter 16 - Franchises

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Chapter Contents:

Article I - In General




Article II - Cable Television Service

Division 1 - Cable Television




Division 2 - Cable Television Contract: February 18, 2007




Division 3 - Cable Television Contract: April 7, 2003




Article III - United Telephone Service Agreement




Article IV - Natural Gas Service Franchise




Article V - Fidelity Communications Franchise




Article I - In General

(Article I - Reserved)

Secs. 16-1 to 16-10. Reserved.

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Article II - Cable Television Service

Division 1 - Cable Television

Sec. 16-11. Intent.

The City of Rolla 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 associated 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. (Ord. 2831, §1)

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Sec. 16-12. Short title.

This ordinance shall be known and be cited as "Rolla CATV Ordinance". (Ord. 2831, §2)

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Sec. 16-13. 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 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.

  1. "Basic Cable Service" means the total of all the following:
    1. The retransmission to all Subscribers of all broadcast television channel signals authorized by the FCC and provided for herein;
    2. The cablecasting to all subscribers of the Local Origination Channel, and the Public, Educational and Government Access signals;
      Basic Cable Service may be offered to Subscribers in one or more levels or combinations of programs. However, for purposes of rate regulation, if a more specific definition of a basic level to which rate regulation shall be applicable is defined in a franchise award ordinance, the definition in the franchise award ordinance shall apply.
  2. "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. "Cable Communications System" or "System", also referred to as "Cable Television System", "CATV System", or "Broadband Communications Network", means a system of antennas, cables, amplifiers, towers, microwave links, cablecasting studios, and any other conductors, converters, equipment or facilities, designed and constructed for the primary purpose of distributing signals to and from subscribers, and the secondary purpose of producing, receiving, amplifying, storing, processing, or distributing audio, video digital, or other forms of signals.
  4. "Cablecast signal" means a non broadcast signal that originates within the facilities of the Cable Communication System.
  5. "Cable-mile" means a linear mile of cable as measured on the street or easement from pole to pole or pedestal to pedestal.
  6. "City" means the City of Rolla, Missouri, as presently constituted and any area subsequently annexed, and shall have the same meaning as "Grantor" defined herein.
  7. "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 mapping) or network design is initiated, and after all necessary permits and authorizations have been obtained.
  8. "Commencement of Operation (or reference thereto)" means that 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.
  9. "Converter" means any device which converts signal carriers from one form to another.
  10. "Council" means the City Council of the City of Rolla.
  11. "Educational Channel", or "Educational Access Channel" means any channel where educational institutions are the primary designated programmers.
  12. "FCC" means the Federal Communications Commission and any legally appointed or elected successor.
  13. "Franchise" means the nonexclusive rights granted pursuant to this ordinance to construct and operate a Cable Communications System along the public ways within all of 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.
  14. "Franchise Agreement" means a franchise award ordinance, 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.
  15. "Franchise Payment" means all charges imposed for a franchise.
  16. "Grantee" means any "person" receiving a franchise pursuant to this ordinance and under the granting franchise award ordinance, and its lawful successor, trustee, receiver, transferee or assignee.
  17. "Grantor" means the City of Rolla, Missouri, as represented by its governing body acting within the scope of its jurisdiction.
  18. "Gross Annual Revenues" means the annual gross revenues received by the Grantee from all sources of subscription services 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. If a more specific definition is set out in a franchise award ordinance, that definition shall prevail.
  19. "Initial Service Area" means the area of the City which will receive service initially, as set forth in the franchise award ordinance.
  20. "Installation" means the connection of the System from feeder cable to Subscribers' terminals.
  21. "Monitoring" means observing a communication signal, or the absence of a signal, where the observer is neither the subscriber nor the programmer, whether the signal is observed by visual or other means, for any purpose whatsoever. (Provided that Monitoring shall not include sweeps of the System, or any part thereof, for the purpose of verifying System integrity, controlling return path transmissions or billing for any services.)
  22. "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.
  23. "Obscenity/Pornography" means that which, when considered as a whole, by the average adult persons, applying contemporary community standards:
    1. predominantly appeals to the prurient interest in sex; and
    2. depicts, describes or portrays in a patently offensive manner human sexual intercourse, sodomy, bestiality, oral copulation, masturbation, urinary and excretory functions, sadism, masochism, sadomasochistic abuse, lewd exhibition of the genitals or any touching of the genitals, public areas or buttocks of the human male or female, or the breasts of the females, whether alone or between members of the same or opposite sex, or between humans and animals in an act of apparent sexual simulation or gratification; and
    3. when taken as a whole lacks serious social, literary, artistic, political or scientific value.
  24. "Ordinance". Any lawfully enacted order of a political subdivision of the State of Missouri.
  25. "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 Cable Service, on a per program, per channel or other subscription basis.
  26. "Penetration" means the result expressed in percentage obtained by dividing the total number of potential subscribers in the franchise area into the number of subscribers receiving service from Grantee.
  27. "Person" means an individual, partnership, association, organization, corporation, other entity or any lawful successor, transferee or assignee thereof.
  28. "Pornography". See (23) "Obscenity/Pornography".
  29. "Programmer" means any person or entity who or which produces or otherwise provides program material or information from transmission by video, audio, digital, or other signals, either live or from recorded tapes or other stored media, to Subscribers, by means of the Cable Communications System.
  30. "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 representative. 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.
  31. "Reasonable Order" shall be a written order not excessive or extreme as to costs or time to comply.
  32. "Resident" means any person residing in the City or as otherwise defined by applicable law.
  33. "Sale" shall include any sale, exchange, or offer for sale.
  34. "School" means any primary and secondary school.
  35. "Section" means any section, subsection, or provision of this ordinance.
  36. "Service Area" means the entire geographic area within the franchise territory.
  37. "State" means the State of Missouri.
  38. "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, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public ways and extensions and additions thereto, together with such other public property and areas that the City shall permit to be included within the definition of street from time to time.
  39. "Subscriber" means any person, firm, corporation, or other entity who or which elects to subscribe to, for any purpose, service provided by Grantee by means of or in connection with the Cable Communications System.
  40. "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 service area.
  41. "Year" means the remaining portion of 1992. Thereafter, "year" means a full calendar year. (Ord. 2831, §3)

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Sec. 16-14. Grant of franchise.

  1. Grant. In the event that Grantor shall grant to a Grantee a nonexclusive, revocable franchise to construct, operate, maintain and reconstruct a Cable Communications System within the City, said franchise shall constitute a right to provide the services of a Cable Communications System as described by the provisions of this Ordinance and by the franchise award ordinance. The franchise award Ordinance shall include all provisions of a Grantee's proposal as finally negotiated and accepted by the Grantor and Grantee.

    Said franchise award ordinance shall be granted under the terms and conditions herein, consistent with applicable Missouri Statutes and FCC rules and regulations which are incorporated by this reference as if fully set forth herein. In the event of a conflict between the terms and conditions of said franchise and the terms and conditions on which the Grantor can grant a franchise, Missouri Statutes or FCC rules and regulations, whichever takes precedence, shall, without exception, control.

    Nothing in any franchise award ordinance shall be deemed to waive the requirements of the various codes and ordinances of the City regarding permits and fees to be paid or manner of construction.
  2. Franchise Territory. If the Grantor shall issue a franchise award ordinance, it shall be for a Service Area which includes the entire City.

  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 file plans with the appropriate City agencies, officers or departments as designated by the City, and utility companies, and receive written approval before proceeding. Such approval shall be given or denied by the appropriate City Agency or office within 30 days of submission of such request. If such permission is not denied 30 days, Grantee may proceed as proposed.

  4. Duration. The term of said franchise and all rights, privileges, 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 award ordinance shall be upon final passage by the Council unless a Grantee fails to file within twenty (20) 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.

  5. Franchise Nonexclusive. Any franchise granted shall be nonexclusive. The Grantor specifically reserves the right to grant, at any time, such additional franchises for a Cable Communications System as it deems appropriate. However, the terms of any franchise award ordinance or license granted to any other grantee shall not be more favorable than any other franchise award ordinance. The effect of this provision is to require nondiscrimination by the City in relation to multiple grantees.

  6. Transfer of Ownership or Control.

    1. Transfer of Franchise. Any franchise cannot in any event be sold, transferred, leased, assigned or otherwise disposed of in any manner, including but not limited to, forced or voluntary sales, merger, consolidation, receivership, or other means, without the prior written consent of the City. Such consent as required by the City shall, however, not be unreasonably withheld.

      The successor Grantee, upon any transfer as heretofore described, shall within sixty (60) days thereafter file with the City an instrument duly executed and certified reciting the fact of such sale assignment or lease, accepting the terms of this franchise ordinance and the franchise award ordinance subject to the terms of the transaction and agreeing to perform all the terms thereof.

      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.

    2. Ownership or Control. The Grantee shall promptly notify the City of any actual transfer of, or acquisition by any other party of control of Grantee. A rebuttable presumption that a change, transfer or acquisition of control has occurred shall arise upon the acquisition or accumulation by a person or group of persons of twenty-five percent (25%) or more of the voting shares of Grantee.

      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 Grantee shall assist the City in any such inquiry.

    3. Mortgage of Assets, When Allowed. Grantee shall not make, execute, or enter into any deed, deed of trust, mortgage, conditional sales contract, or any loan, lease, pledge, sale, gift or similar agreement concerning any of the facilities and property, real or personal, involved in the operation of the Cable System under a franchise award ordinance 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 System, 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 System and not involving the relinquishment of any right or power affecting Grantee's ability to provide 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 Grantee's ability and responsibility to provide services in accordance with its franchise award ordinance and will not interfere with the City's interest. Such approval by the City shall not unreasonably be withheld; or

      4. Grantee may pledge or mortgage its assets to a financial institution in return for sums necessary to construct, buy, or operate the Cable System, provided that such pledge or mortgage and related agreements that are public records are filed with the City and limit such financial institution as follows: any foreclosure or exercise of lien over the franchise or facilities may only be by assumption of control over the entire system or a self-sufficient, separately operable head-end and its dependent distribution system in a multiple head-end system. However, if the financial institution providing financing shall notify the Grantor of its intent not to operate the System, then the City shall have the option to operate said System. Prior to assumption of control, the financial institution shall notify the City that it or a designee 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 award ordinance obligations during the term the financial 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 award ordinance or award of a new franchise to another Grantee. The City shall approve such transfer upon finding that the legal, financial, 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 unreasonably withheld. Before the City shall operate the System, it shall likewise provide a written plan of operation to the financial institution. Upon provision of a written plan, the City shall have the authority to take possession of said System and operate said System. The City shall, in the course of its operations, collect all billings and pay all appropriate bills and expenses, and deduct and place the rest of said funds from operating revenues of the System in an escrow account in said financial institution. The escrow funds shall be released when the City is relieved of the responsibility of operating the System.

    4. Consent Not Waiver. The consent or approval of the City to any transfer by 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 award ordinance.

    5. Nonapproval of Transfer, When. In the absence of extraordinary circumstances, the City will not approve any transfer or assignment of the franchise prior to substantial completion of construction of any proposed system.

  7. Franchise Renewal. This franchise may be renewed upon application of Grantee pursuant to the following procedures and/or in accordance with the then applicable law.

    1. Renewal Notice. At least twenty-four (24) months prior to the expiration of the franchise award ordinance, Grantee shall inform the City in writing of its intent to seek renewal of the franchise award ordinance, or as shall be required by Federal or State law, if said laws existing at that time pre-empt, as a matter of law, this Ordinance.

    2. Satisfactory Performance Required. After giving public notice, the City shall proceed to determine whether Grantee has satisfactorily performed its obligations under the franchise award ordinance. To determine satisfactory performance, the City shall consider technical developments and performance of the System requirements set in the franchise award ordinance, as well as other standards established in applicable law - Federal or State. Programming, or other services offered, and costs of services offered shall also be considered if then allowed by applicable law. Also, the City shall consider 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.

    3. Time Frame. A one (1) year period shall be provided to determine the Grantee's eligibility for renewal.

    4. Renewal Periods. If the City finds Grantee's performance satisfactory, a new franchise award ordinance shall be granted pursuant to this Ordinance, as amended, for an additional period of five (5) years. 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.

  8. Police Powers. In accepting this franchise, Grantee acknowledges that its rights hereunder are subject to the police power of the City to adopt and enforce general ordinances 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 Ordinance 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 provisions inconsistent with this Ordinance 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.

  9. Franchise Fee.

    1. Annual Franchise Payment. A grantee of a franchise award ordinance hereunder shall pay to the City a fee in an amount equal to five percent (5%) of gross receipts for all subscription services if allowed by law.

      Such payment shall be in addition to any other fee or tax and commence as of the effective date of the operation of the System by Grantee. In the event of a dispute as to the amount due the City, if the City so requests, Grantee shall furnish a statement of said payment certified by the financial officer of Grantee, which statement shall include total amounts of annual gross subscription service revenues and the above charges, deductions and computations for the period covered by the payment. If Grantee fails to produce a certified statement acceptable to the City, then, the City shall choose a CPA of at least regional reputation for honesty and competency. All reasonable charges for the said CPA services shall be borne by Grantee if the annual Gross Revenues reported to Grantor are, in the aggregate, 2% or less than reported.
    2. 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 Grantee.

    3. 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 at Boatmen's National Bank, Rolla, Missouri during such period until such amounts are fully paid, and

      2. a sum of money equal to expenses, costs, and attorneys' fees, if any, incurred by the City by reason of delinquent payment.

    4. 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 or FCC Rules and Regulations, then the amount set by this Ordinance shall be the maximum allowable under controlling law.

  10. Forfeiture, Revocation or Abridgement.

    1. Grounds for Revocation or Abridgment. The City reserves the right to revoke any franchise award ordinance granted hereunder and rescind all rights and privileges associated with the franchise award ordinance in the following circumstances, each of which shall represent a default and breach under this Ordinance and the franchise award ordinance grant:

      1. If Grantee should default in the performance of any of its material obligations under this Ordinance or under such documents, contracts and other terms and provisions entered into by and between the City and Grantee.

      2. If Grantee should fail to provide or maintain in full force and effect, the liability insurance coverage 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 ordinance, is invalid.

      4. If Grantee should frequently violate any orders or rulings of any regulatory body having jurisdiction over Grantee relative to this franchise unless such orders or rulings are being contested by Grantee in a court of competent jurisdiction.

      5. If Grantee ceases to provide services for any reason within the control of Grantee over the Cable Communications System. 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 Grantee's control. A fault shall not be deemed to be beyond Grantee's control if committed by a corporation or other business entity in which Grantee holds a controlling interest or which holds, alone or with others a controlling interest in Grantee, whether held directly or indirectly.

      6. If Grantee evades or attempts to evade any of the provisions of this Ordinance or the franchise award ordinance or practices any fraud or deceit upon the City.

      7. If Grantee's construction schedule is delayed for more than six (6) months later than the schedule contained in the franchise award ordinance.

      8. If Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt.

    2. Procedure prior to Revocation. Revocation procedures shall be executed as required by the then applicable laws. If neither Federal nor State law preempts, the following shall apply:

      1. The City may make written demand that Grantee comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for revocation. If the failure, refusal or neglect of Grantee continues for a period of thirty (30) days following such written demand, the City may place its request for termination of the franchise award ordinance upon a regular 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 circulation within the City.

      2. The Council shall hear any persons interested therein, and shall determine, in its discretion, whether or not any alleged failure, refusal or neglect by Grantee was with just cause.

      3. If such failure, refusal or neglect by Grantee was with just cause, the Council shall direct 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 Grantee was without just cause, then the Council may, by resolution, declare that the franchise award ordinance of such Grantee shall be terminated unless there be compliance by Grantee within such period as the Council may fix.

    3. Abridgement of Franchise Term. After following the procedure set out herein prior to revocation, and the Council finding a violation of this franchise or the franchise award ordinance, but not of sufficient gravity to require revocation of this franchise or the franchise award ordinance, 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 award ordinance. For each offense or violation the Council may abridge the term of the franchise award ordinance for a period of time not more than 60 days. Each day's violation of this section may be considered a separate offense. Such abridgments of the franchise award ordinance term shall not in any event accumulate in the aggregate more than four (4) years total.

    4. Disposition of Facilities. In the event a franchise award ordinance 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.

    5. Restoration of Property. In removing its plant, structures and equipment, 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 prevailed prior to Grantee's removal of its equipment and appliances without affecting the electrical or telephone system cable, wires or attachments. The City shall inspect and approve the condition of the public ways and public places; and cables, wires, attachments and poles after removal. The liability insurance as provided herein shall continue in full force and effect during the period of removal and until full compliance by Grantee with the terms and conditions of this paragraph and this ordinance.

    6. Restoration by City, Reimbursements of Costs. In the event of a failure by 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 Grantee shall reimburse the City the cost thereof within thirty (30) days after receipt of an itemized list of such costs or the City may recover such costs.

    7. City's Right Not Affected. The termination and forfeiture of any franchise award ordinance shall in no way affect any of the rights of the City under the franchise award ordinance or any provision of law.

  11. Receivership and Foreclosure.

    1. Termination Upon Bankruptcy. Any franchise award ordinance granted shall at the option of the City Council, cease and terminate one hundred eighty (180) days after the appointment of a receiver or trustee to take over and conduct the business of 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 eighty (180) days, or unless:

      1. Such receiver or trustee shall have, within one hundred eighty (180) days after their election or appointment, fully complied with all the terms and provisions of this ordinance and the franchise award ordinance granted pursuant hereto, and the receiver or trustee within said one hundred eighty (180) days shall have remedied all defaults under the franchise award ordinance; and

      2. Such receiver or trustee shall, within said one hundred eighty (180) days execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receiver or trustees assume and agree to be bound by each and every term, provision and limitation of said franchise award ordinance.

    2. Termination Upon Foreclosure. Except for the existing lien holders, in the case of a foreclosure or other judicial sale of the plant, property and equipment of Grantee, or any part thereof, including or excluding this franchise, the Council may serve notice of termination upon Grantee and the successful bidder at such sale, in which event said franchise award ordinance and all rights and privileges of 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 award ordinance.

  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 award ordinance in accordance with the provisions of this ordinance. Any Grantee providing any service under the terms of a valid franchise award ordinance shall have standing to enforce this provision. (Ord. 2831, §4)

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Sec. 16-15. Regulation of Franchise.

  1. Regulatory Authority. The Grantor shall exercise appropriate regulatory authority under the provisions of this Ordinance and applicable 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 related communications.

  2. Regulatory Responsibility. The Grantor, if acting jointly with other Grantors, may delegate the following regulatory responsibility:

    1. Administration and Enforcement. Administration and enforcement of the provisions of the Cable Communications System franchise award ordinance(s).

    2. Coordination. Coordination of the operation of public, governmental and/or educational channels, if any.

    3. Support to Public Agency Users. Provision of technical, programming and operational support to public agency users, such as City departments, schools and health care institutions.

    4. 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.

    5. Planning. Planning of expansion and growth of services, including inter-connection of various CATV Systems.

    6. Interconnection. Analysis of the possibility of integrating Cable Communication Systems with other City, County, State or regional telecommunications networks.

    7. Policy. Formulation and recommendation of long range telecommunications policy for the City.

    8. Community Channels. Selection and implementation of all things necessary to establish an entity that would ensure access to community channels that serve the public interest.

  3. Rate Regulation.

    1. Initial Rates. The City reserves the right, power and authority to regulate rates, having found that effective competition, as defined in Section 623 of the Cable Communications Policy Act of 1984 and applicable regulations, does not exist. The level(s) regulated shall be set out in the franchise award ordinance.

    2. Rate Regulation. If the City shall assume the authority to regulate rates, it shall do so as follows:

      1. The City shall have the power to approve or disapprove any and all regular subscription rates, installation charges and other charges proposed by 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 efficient and economical management, including a fair return on the original cost, less depreciation, of the properties devoted to such service, without regard to any subsequent sale or transfer price or cost of such properties.

      2. The City shall have the power, authority and right to cause Grantee's rates and charges to conform to the provisions of subsection (1) above 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, Grantee's rates and charges or proposed increased rates and charges will not conform to the said subsection (1) above.

    3. Procedure. Upon the filing of a petition by Grantee for a rate change, the City shall have one hundred eighty (180) days to do all things necessary to render a written decision on Grantee's petition, either accepting, rejecting, or modifying the same and reciting the basis of its decision. The City shall consider, inter alia, the following factors in approving or disapproving the petition:

      1. The ability of 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 derived from System services;

      3. The quality of the service offered by Grantee;

      4. The original construction cost of the System plus improvements less depreciation;

      5. A fair rate of return with respect to Grantee's investment;

      6. The extent to which Grantee has adhered to the terms of this franchise;

      7. The City shall not consider any valuation based upon any franchise award ordinance or Grantee's goodwill, and these items of value shall neither be amortized as an expense nor shall a return be paid on them for this purpose.

    4. Rates Effective Upon Failure of Written Decision To Be Rendered. If the City fails to render a written decision either accepting, rejecting or modifying Grantee's petition within one hundred eighty (180) days of Grantee's petition pursuant to subsection (b) above, Grantee shall thereafter be entitled to put its proposed new rates into effect.

    5. Financial Reports Required. Grantee's petition for a rate increase shall include, but not be limited to, the following financial reports, which shall reflect the operations of the system.

      1. Balance Sheet for two (2) years preceding request.

      2. Income Statement for two (2) years preceding request.

      3. Statement of Sources and Applications of Funds for two (2) years preceding request.

      4. Detailed Supporting Schedules of Expenses, Income, Assets and other items as may be reasonably required.

      5. Statement of Current and Projected Subscribers and Penetration.

    6. Schedule of Rates. Each Grantee shall maintain and file with the City a complete schedule of subscriber rates including all fees and charges, if any, for services not subject to approval by the City.

    7. Costs of Rate Regulation to Grantee. All costs to the City arising out of a petition for rate change shall be borne by Grantee in accordance with FCC rules and regulations.

    8. City Instituted Rate Change. In clarification of the above, if the City shall institute rate modification proceedings, the deadlines set out herein shall only begin to run from the date the required information is supplied to the City. Grantee shall have sixty (60) days to provide information, as required, to the City after Grantee shall receive written notice from the City. (Ord. 2831, §5)

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Sec. 16-16. General Financial and Insurance Provisions.

  1. Indemnification.

    1. Extent. Grantee shall upon acceptance of the franchise award ordinance granted indemnify, defend and hold harmless the City, its officers, boards, commissions, agents, employees and from any and all claims, suits, judgments or damages in any way arising out of or through or alleged to arise out of or through the act of the City in granting a franchise award ordinance and the acts or omissions of Grantee, its servants, employees, or agents. Both such indemnifications shall cover such claims arising in tort, contracts, violations of U.S. or State Constitutions, statutes, ordinances, regulations, or from any source or on the basis of any theory whatsoever, but shall specifically exclude any litigation now existing or in the future between the City and Rolla Cable Systems, Inc., its successors and assigns.

    2. Tender of Defense. In the event any such claims shall arise, the City shall tender the defense thereof to Grantee; provided, however, that the City, in its sold discretion, may participate in the defense of such claims at the expense of Grantor.

  2. Insurances.

    1. Kinds, Amounts. Grantee shall maintain through the term of the franchise award ordinance insurance in amounts at least as follows:

      1. Workmen's Compensation Insurance: Such coverage as may be required by the workmen's compensation insurance and safety laws of the State of Missouri and amendments thereto.

      2. Grantee's Liability: Combined single limit of $1,000,000.

      3. Comprehensive General Liability: Bodily injury each person $1,000,000, each occurrence $1,000,000; and property damage each occurrence $1,000,000.

      4. Comprehensive Automobile Liability: Including nonownership and hired car coverage as well as owned vehicles with minimum limits as follows: bodily injury for each person $1,000,000, and each occurrence $1,000,000; property damage for each occurrence $1,000,000.

    2. Copies Furnished. Grantee shall furnish the City with copies of such insurance policies or certificates of insurance.

    3. Endorsement. Such insurance policies provided for herein shall name the City, its officers, boards, commissions, agents and employees as additional 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 mail of written notice of such intention to cancel or not renew."

    4. No Limitation of Liability. The minimum amounts set forth herein for such insurance shall not be construed to limit the liability of Grantee to the City under the franchise award ordinance issued hereunder to the amounts of such insurance.

  3. Franchise Processing Costs. Costs incurred by the City in any franchising process shall include but not be limited to, all costs of publication of notices, publication of the franchise award ordinance, consultant's and attorneys' fees, and all incidental costs, and shall be paid by Grantee as a precondition to the award of a franchise. Reimbursement shall specifically include any litigation expense, including attorney's fees, arising out of the Cable Act.

  4. Adjustment of Established Amounts. The City shall have the power from time to time to review the adequacy of the insurance coverage amounts. If because of changed circumstances, such as, but not limited, to, inflation, costs of materials, and/or the record of performance of Grantee, the City determines that the amounts set are inadequate, the City shall notify Grantee by sending Grantee a document detailing the proposed changes which shall be in accordance with general practices in the CATV industry for similar operations. Grantee shall have thirty (30) days to reply. After consideration of Grantee's reply, if any, the City may reduce, leave the same, or increase the amounts set as it deems reasonable to protect the public welfare and provide for the common good. (Ord. 2831, §6)

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Sec. 16-17. Design and Construction Provisions.

  1. System Design. The Cable Communications System shall be constructed, reconstructed, or improved in accordance with the design requirements contained in the franchise award ordinance agreement.

  2. Geographical Coverage. Grantee shall design, construct, or reconstruct the system in such 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 in accordance with the schedules and line extension policies specified in the franchise award ordinance.

  3. 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 the costs required to extend service to said Subscriber. Upon said Subscriber agreeing in writing to such costs, 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 non refundable, even if the area subsequently reaches the density required for mandatory extension.

  4. System Construction Schedule.

    1. Requirements. Grantee shall comply with the requirements of the system construction schedule contained in the franchise award ordinance agreement.

    2. Service Not Provided, Where. Service need not be provided where power and telephone utilities are not available.

    3. Revocation. Failure to begin construction within six (6) months after award of the franchise award ordinance will be grounds for franchise award ordinance revocation, at the option of the Grantor.

  5. Penalties for Delay in Construction. The Grantor may at its sole option, apply any of the following in connection with delays in system construction:

    1. Reduction of Franchise Period. Reduction in the duration of the franchise award ordinance on a month-to-month basis for each month of delay.

    2. Termination. Termination of the franchise award ordinance for delays exceeding six (6) months.

  6. Provision of Service. After service has been established by activating co-axial cables for any area, neighborhood or group of homes meeting the criteria of the initial service area and the line extension policy thereof, Grantee shall provide service to any requesting Subscriber or resident thereof within ninety (90) days from the date of request.

  7. Underground Cable. Underground cabling is encouraged. In any event, cables shall be installed underground at Grantee's cost where existing utilities are already underground. Previously installed aerial cable shall be put underground in concert with other utilities, when such other utilities may convert from aerial to underground construction.

  8. New Developments Underground. In cases of new construction or property development where utilities are to be placed underground, the developer 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 cable conduit, pedestals and/or vaults, and laterals, all of which are 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 fifteen (15) 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 fifteen (15) 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 of system engineer of Grantee prior to approval of the preliminary plat request.

  9. Street Occupancy.

    1. Utilization of Existing Poles. Grantee shall utilize existing poles, conduits and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately-owned property until the written approval of the City is obtained, which approval shall not be unreasonably withheld. However, no location of any pole or wire holding structure of Grantee shall be a vested interest and such poles or structures shall be removed or modified by Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. Grantee shall negotiate the lease of pole space and facilities from the existing pole owners.

    2. Notification of Construction. Grantee shall notify the City at least ten (10) business days prior to the intention of Grantee to commence any construction in any streets. The City shall cooperate with Grantee in expeditiously granting any permits required, providing such grant and subsequent construction by Grantee shall not unduly interfere with the use of such streets, and the proposed construction shall be done in accordance with the pertinent provisions of the ordinances of the City.

    3. Minimum Interference. All transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and at all times shall be kept and maintained in a safe condition and in good order and repair. Grantee shall, at all times, employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public way by Grantee shall be placed in such a manner as not to interfere with the usual travel on such public way.

    4. Restoration of Streets. Whenever a 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 a Grantee in any hard surface pavement in any street, alley or public highway a Grantee shall promptly refill the opening and restore the pavement. The Grantor may refill and/or repave in case of neglect of a Grantee. The cost thereof, including the cost of inspection and supervision, shall be paid by the Grantee in question. All excavations made by a 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.

    5. Removal of Facilities. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the Chief of the Police Department to remove any of Grantee's facilities, no charge shall be made by Grantee against the City for restoration and repair, unless such acts amount to gross negligence by the City.

    6. 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 facilities, subject to the supervision and direction of the City.

    7. Improvements by City. Grantee at its expense shall protect, support, 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 street grade; installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks or any other types of structures; improvements by governmental agencies, whether acting in a governmental 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. 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 a surcharge by reason of anything hereunder.

    8. Payment Upon Grantee's Failure. Upon failure of Grantee to commence, pursue or 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 after 30 days written notice to Grantee, at its option, cause such work to be done and 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.

    9. Paving Cuts. Grantee shall make no paving cuts or curb cuts unless absolutely necessary, and only after written permission has been given by the City.

    10. Installation In Conduit. Grantee shall install in conduit all cables passing under any public roadway.

    11. Reservations of Street Rights. 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 main or 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 operation of the poles, wires, conduits, conductors, pipes or appurtenances of Grantee. If any such property of 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 appliances 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 Grantee.

    12. Street Vacation or Abandonment. In the event any street, alley, public highway or portion thereof used by Grantee shall be vacated by the Grantor, or the use thereof discontinued by Grantee, during the term of the franchise award ordinance, Grantee shall forthwith remove facilities therefrom unless specifically permitted to continue or abandon the same, and on the removal thereof restore, repair or reconstruct 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 Grantee, after thirty (30) days' notice by the Grantor to repair, improve or maintain such street portion, the Grantor may do so such work or cause it to be done, and the cost thereof as found and declared by the Grantor shall be paid by Grantee and collection may be made by court action or otherwise.

    13. Movement of Facilities. In the event it is necessary temporarily to move or remove any of Grantee's wires, cables, poles, or other facilities placed pursuant to the franchise award ordinance, in order to lawfully move a large object, vehicle, building or other structure over the streets, alleys or highways of the Grantor, Grantee upon reasonable notice shall move, at the expense of the person requesting the temporary removal, which payment shall be in advance of the work, such facilities as may be required to facilitate such movements.

  10. Construction and Technical Standards:

    1. Construction Standards.

      1. Compliance with Safety Codes. All installation of equipment with the exception of temporary repairs to the System shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electrical Code as amended, or other applicable City codes.

      2. Construction Standards and Requirements. All of Grantee's plant and equipment, including but not limited to the antenna site, head-end and distribution system, towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements the municipality may deem proper to make, or to interfere in any manner with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular traffic on municipal properties.

    2. Test and Compliance Procedure. If the FCC shall prescribe testing requirements for cable systems, those provisions shall preempt. However, if the FCC requires no performance testing then the following shall apply: Grantee shall submit, within sixty (60) days after the effective date of the franchise award ordinance, 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 award ordinance. The tests for Basic Cable Services shall be performed periodically, at intervals no greater than every six (6) months. Locations shall be at the far ends of the distribution trunk cables. If more than ten percent (10%) of the locations tested fail to meet the performance standards, Grantee shall be required to repair the system. (Ord. 2831, §7)

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Sec. 16-18. Service Provisions.

  1. New Developments.

    1. Amendment of Franchise. It shall be the policy of the City to liberally amend this franchise or a specific franchise award ordinance, upon application of Grantee, when necessary to enable Grantee to take advantage of any developments in the field of transmission of television and/or radio signals which will afford it an opportunity more effectively, efficiently or economically to serve its customers.

      This section shall not be construed to require the City to make any amendment or to prohibit it from authorizing improvement or redesign of a system without application by Grantee.

  2. Protection of Subscriber's Privacy.

    1. Use of Data from Subscriber. A Grantee shall not initiate or use any form, procedure or device for procuring non operating or nonessential information or data from Subscribers' terminals by use of the network, without prior notification to and approval from each Subscriber so affected.

    2. Subscriber Lists. Grantee shall not, without prior valid authorization from each Subscriber so affected, provide any list designating Subscribers' names and addresses to any party not engaged in the normal function of providing service(s) to the System or its Subscribers.

  3. Program Alteration. Except as deletions are required by law, all programs of broadcasting stations carried by Grantee shall be carried in their entirety as received with announcements and advertisements and without additions.

  4. Obscenity/Pornography. No Grantee when engaged in origination cablecasting as defined by 47 CFR 5(2), and this Ordinance in its Basic Cable services, in its premium services or in any other service, shall transmit or permit the transmission of material that is obscene. (Ord. 2831, §8)

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Sec. 16-19. Operation and Maintenance.

  1. Reports Required. Grantee shall file with the City, on request, no more than once each calendar quarter, any of the following:

    1. 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.

    2. Subscriber Data. Grantee's schedule of charges, contract or application forms for regular Subscriber service, policy regarding the processing of Subscriber complaints, delinquent Subscriber disconnect and reconnect procedures, and any other terms and conditions adopted as Grantee's policy in connection with its Subscribers shall be filed with the City and conspicuously posted in Grantee's local office.

    3. Ownership Report. An Ownership Report, indicating all persons who at any time during the preceding year did own or control more than 10% of Grantee.

    4. Conduct of Business Rules. All rules, regulations, terms and conditions which Grantee has adopted for the conduct of its business.

    5. Technical Measurements. One (1) copy of a report on the System's technical measurements as set forth herein.

    6. Financial Report. An annual financial report certified by an officer of Grantee 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 Grantee.

    7. Activities Report. An annual summary of Grantee's previous year's activities including but not limited to Subscriber totals and new services.

    8. Complaints. An annual summary of complaints received and handled by Grantee; and

    9. Future Plans. An annual projection of Grantee's plans for the future.

  2. Information Required.

    1. Maintenance of Information. Grantee shall at all times maintain:

      1. A record of all complaints received and interruptions or degradation of service experienced for the preceding three (3) years.

      2. A full and complete set of plans, records and "as-built" maps showing the exact location of all Cable Communication System equipment installed or in use in the City, exclusive of Subscriber service drops.

    2. Filing. When not otherwise prescribed herein, all matters required to be filed with the City shall be filed with the City Clerk.

  3. Maintenance and Complaints.

    1. Business Offices. Grantee shall maintain appropriate business offices 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.

    2. Interruptions. 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.

    3. Repair Force. Grantee shall maintain a repair force of technicians which shall initiate response to Subscriber complaints or requests for service within twenty-four hours after receipt of the complaint or request on a business day.

    4. Information to Subscribers. Grantee shall furnish each Subscriber at the time service is installed, written instructions that clearly furnish information concerning the procedures 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 administration of the franchise award ordinance with the address and telephone number of the office.

  4. Rights of Individuals.

    1. Equal Rights. Grantee shall not deny service, deny access or otherwise discriminate against Subscribers, channel users, or general citizens on the basis of race, color, religion, natural origin, age or sex. Grantee shall comply at all times with all other applicable Federal, State and local laws and regulations, and all executive and administrative orders relating to nondiscrimination which are hereby incorporated and made part of this Ordinance by reference.

    2. 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.

    3. Right of Privacy in Transmission. No signals 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 contained in a separate document with a prominent statement that the Subscriber is authorizing the permission in full knowledge of its provision. 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 authorization shall be revocable at any time by the Subscriber without penalty of any kind whatsoever. Grantee shall be entitled to conduct system wide or individually addressed "sweeps" for the purpose of verifying system integrity, controlling return-path transmissions, or billing for services.

  5. Continuity of Service Mandatory.

    1. Right to Continuity. It shall be the right of all Subscribers to continue receiving service insofar as their financial and other obligations to Grantee are honored. In the event that 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 award ordinance, 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, Grantee shall cooperate with the City, new franchisee or operator in maintaining continuity of service to all Subscribers. During such period, Grantee shall be entitled to the revenues for any period during which it operates the System, and shall be entitled to reasonable costs for its services when it no longer operates the system.

    2. 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 conditions acceptable to the City or a permanent operator is selected. If the City is required to fulfill this obligation for Grantee, Grantee shall reimburse the City for all reasonable costs or damages in excess of revenues from the system received by the City. However, this provision shall not affect the rights of any lien holders.

  6. Grantee Rules and Regulations. 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 Grantee to exercise its rights and perform its obligations under said franchise award ordinance, and to assure an uninterrupted 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. (Ord. 2831, §9)

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Sec. 16-20. Rights Reserved to Grantee.

  1. Right of Grantee. Should Grantee become dissatisfied with any material decision or ruling of the Grantor pertaining to cable communications matters, Grantee may pursue such other remedies as are available, including the bringing of actions in any court of competent jurisdiction. (Ord. 2831, §10)

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Sec. 16-21. Miscellaneous Provisions.

  1. Compliance with City, State and Federal Laws. Notwithstanding any other provisions of this Ordinance to the contrary, 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 Grantee to perform any service, or shall permit Grantee to perform any service, or shall prohibit 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, 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 Ordinance.

  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 the franchise award ordinance, an address for service of notices by mail. Grantee shall also maintain appropriate local offices and telephone numbers for the conduct of matters related to this franchise or the franchise award ordinance during normal business hours. Upon written request by Grantee, the City shall provide copies of all notices effecting this franchise ordinance or a franchise award ordinance to Grantee's lender.

  3. Public Notice. Minimum public notice of any public meeting relating to this franchise or the franchise award ordinance 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 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.

  4. Captions. 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 Ordinance.

  5. No Recourse Against the Grantor. 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.

  6. Nonenforcement by the Grantor. Grantee shall not be relieved of its obligation to comply with any of the provisions of this Ordinance or said franchise award ordinance by reason of any single or repeated failure of the Grantor to enforce compliance.

  7. Theft of Services and Tampering.

    1. 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 damage, or to tap, tamper with or otherwise connect any wire or device to a wire, cable, conduit, equipment and apparatus or appurtenances of Grantee with the intent to obtain a signal or impulse from the Cable System without authorization from Grantee and compensation (at Grantee's option) to Grantee, or to obtain cable television or other communications service with intent to cheat or defraud Grantee of any lawful charge to which it is entitled.

    2. Punishment. Any person convicted of violating any provision of this Section (a) above 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.

  8. Subsequent Action by State or Federal Agencies. Should the State of Missouri, the FCC or any other agency of the Federal government subsequently require Grantee to deliver any signals in addition to those required by this franchise or a franchise award ordinance, or to perform any act which is inconsistent with any provisions of this franchise award ordinance, Grantee shall so notify the Grantor. Upon receipt of such notification, the Grantor shall determine if a material provision of the franchise award ordinance is affected. Upon such determination, the Grantor shall have the right to modify or amend any of the sections of the franchise award ordinance to such reasonable extent as may be necessary to carry out the full intent and purpose of the franchise award ordinance. The Grantor may terminate the franchise award ordinance in the event the Grantor determines that substantial and material compliance with the original proposed terms of the franchise award ordinance has been frustrated by such State or Federal requirement. (Ord. 2831, §11)

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Sec. 16-22. Acceptance.

Any ordinance awarding a franchise to a specific company and this Ordinance shall be accepted by Grantee by written instrument executed and acknowledged by it as a deed is required to be filed with the City Clerk within twenty (20) 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 ordinance awarding a franchise and their terms, conditions and provisions; and said Grantee shall agree in said instrument to abide by, to observe and 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.(Ord. 2831, §12)

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Sec. 16-23. 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.(Ord. 2831, §13)

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Sec. 16-24. Effective date.

This Ordinance shall be in full force and effect after its passage and approval. (Ord. 2831, §14)

PASSED AND APPROVED THIS 3RD DAY OF FEBRUARY, 1992

________________________________

Mayor

ATTEST:

__________________________________

City Clerk

The terms and conditions as stated in Section 12 of this Ordinance are hereby accepted by Fidelity Cablevision, Inc. as of this 15th day of February, 1992.

FIDELITY CABLEVISION, INC.

By: _____________________________

John T. Davis, President

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Secs. 16-25 to 16-30. Reserved.

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Division 2 - Cable Television Contract: February 18, 2007

Sec. 16-31 to 16-32. Reserved.

Sec. 16-33. Definitions.

Except as otherwise provided herein, the definitions and word usage set forth in Section 2 of the Cable Ordinance are incorporated herein and shall apply in this Franchise Agreement. In addition, the following definitions shall apply:

  1. Cable Ordinance: Ordinance No. 2831.

  2. Franchise Agreement or Agreement: This contract and any amendments, exhibits or appendices hereto.

  3. Franchisee: FIDELITY CABLEVISION, INC.

  4. Normal Operating Conditions: The term “normal operating conditions” means those service conditions that are within the control of the cable operator directly affecting service. Those conditions which are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions directly affecting service. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.

(Ord. 2832; Ord. 3823, §1)

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Sec. 16-34. Grant of Authority; Limits and Reservations.

  1. Grant. Fidelity Cablevision, Inc., (Grantee) is hereby granted a nonexclusive revocable franchise to construct, operate, maintain and reconstruct a cable television system within the present and future limits of the City (Grantor). The franchise is granted subject to the requirements contained in Ordinance No. 2831 and the provision set forth herein.

  2. Franchise Area: The Franchise is issued for the entire present territorial limits of the City of Rolla, Missouri, and any subsequent annexed areas.

  3. Term: The Franchise and this Franchise Agreement shall expire at 12:01 a.m. on February 18, 2017, unless the Franchise is earlier revoked or terminated as provided herein or in the Cable Ordinance or its term is extended as provided herein pursuant to Section 2(p)(4).

  4. Grant Not Exclusive: The Franchise and the right it grants to use and occupy the Public Rights-of-Way are not exclusive and do not explicitly or implicitly prelude the issuance of other franchises to operate Cable Systems or other communications systems within the City, affect the City’s right to authorize use of Public Rights-of-Way by other Persons to operate Cable Systems or other communications systems or for other purposes as it determines appropriate, or affect the City’s right to itself construct, operate or maintain a Cable System or other communications system, with or without a Franchise.

  5. Franchise Agreement Subject to Other Laws. This Franchise Agreement is subject to and shall be governed by all terms, conditions and provisions of the Cable Ordinance as enacted and any applicable provision of federal, state, and local law. However, the Franchise Agreement will be the prevailing document in the event of conflicts or inconsistencies between this Agreement and the City’s Cable Ordinance. In the event of any conflicts between the requirements contained within this Franchise and the Cable Ordinance and the requirements of federal law, rules, and/or administrative agency rulings, the requirements contained in federal law et al. shall prevail and a Franchise shall not be held in noncompliance when its actions are consistent with the prevailing requirements.

  6. Franchise Agreement Subject to Exercise of Police Powers: All rights and privileges granted herein are subject to the police powers of the City and its rights under applicable laws to regulate the Franchisee and the construction, operation and maintenance of the Franchisee’s Cable System, including, but not limited to, the right to adopt and enforce additional ordinances and regulations as the City shall find reasonably necessary in the exercise of its police powers, the right to adopt and enforce generally applicable zoning, building, permitting and safety ordinances and regulations, the right to adopt and enforce generally applicable ordinances and regulations relating to equal employment opportunities, and the right to adopt and enforce ordinances and regulations containing right-of-way, telecommunications, utility, cable television consumer protection, service standards, or rate regulation provisions, consistent with federal and state law.

  7. Incorporation of Cable Ordinance by Reference: By acceptance of the Franchise, the Franchisee agrees to meet all requirements of the Cable Ordinance as enacted, which is hereby incorporated by reference into and made a part of this Franchise Agreement.

  8. Approval and Effective Date: This Franchise Agreement shall be effective as of 12:01 a.m. on February 18, 2007, upon its approval and execution by the City and Fidelity.

  9. Effect of Acceptance: By accepting the Franchise and executing this Franchise Agreement, the Franchisee:

    1. acknowledges and accepts the City’s legal right to grant the Franchise, to enter into this Franchise Agreement, and to enact and enforce ordinances and regulations related to the Franchise;

    2. accepts and agrees to comply with each provision of this Agreement; and (3) agrees that the Franchise was granted pursuant to processes and procedures consistent with applicable law, and that it will not raise any claim to the contrary.

  10. Claims Related to Prior Franchise: The Prior Franchise is hereby terminated and superseded prospectively.

  11. Franchisee Bears Its Own Costs: Unless otherwise expressly provided in this Franchise Agreement, all acts that the Franchisee is required to perform under the Cable Ordinance as enacted under this Agreement or other applicable law shall be performed at the Franchisee’s own cost and expense, without reimbursement by the City.

  12. No Waiver:

    1. The failure of the City on one or more occasions to exercise a right or to require compliance or performance under this Franchise Agreement, the Cable Ordinance or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by the Franchisee, unless such right or such compliance or performance has been specifically waived in writing.

    2. Waiver of a breach of this Agreement shall not be a waiver of any other breach, whether similar to or different from that waived. Neither the granting of the Franchise, nor any provision herein, nor any action by the City hereunder shall constitute a waiver of or a bar to the exercise of any governmental right or power of the City, including without limitation the power of eminent domain.

  13. No Recourse: The Franchisee shall have no recourse against the City for any loss, cost, expense, claim, liability or damage arising out of any action undertaken or not undertaken by Franchisee pursuant to the Franchise, this Franchise Agreement or the Cable Ordinance, whether or not such action or non-action was required by the Franchise, the Agreement or the Cable Ordinance, except as otherwise expressly permitted by federal law or this Agreement.

  14. Construction of Franchise Agreement: The provisions of this Franchise Agreement shall be liberally construed in accordance with generally accepted rules of contract construction and to promote the public interest. The express provisions of the Franchise Agreement constitute a valid and enforceable contract between the parties. In the event of a clear conflict between the Cable Ordinance and this Agreement, the Agreement shall prevail, except where the conflict arises from the lawful exercise of the City’s police power.

  15. Amendment of Franchise Agreement: The City shall liberally amend this Franchise Agreement upon the application of the Franchisee whenever necessary to enable the Franchisee to take advantage of developments in the field of cable communications, which, in the City’s opinion, will afford the Franchisee an opportunity to serve its Subscribers more efficiently, effectively and economically. Such amendments shall be subject to such conditions as the City and the Franchisee determine are reasonably necessary to protect the public interest.

  16. Periodic Review:

    1. The City shall conduct a review of the Cable System during the six-month period that begins thirty-six (36) months prior to the expiration date of this Agreement. Such review shall be completed during such six-month period, and in sufficient time to allow the City to exercise its options hereunder. Such review shall be conducted to enable the City to determine the needs of the community and whether they are being met by the Cable System. The determination under this paragraph shall be based upon the reasonable cable-related needs and interests of the community, considering all relevant factors including the costs to the Franchisee of meeting those needs and interests.

    2. To assist in the City’s review, the Franchisee shall submit a report to the City describing advances in cable technology nationwide, the results of any testing of such technology by Franchisee or its Affiliates, the potential benefits and disadvantages of those advances for the System and its Subscribers and potential Subscribers, and its plan and timetable for instituting any such advances in technology. Additionally, upon request by the City the Franchisee shall testify before the City or provide oral analysis of Franchisee’s review of the status of local cable competition.

    3. The review may be conducted by City Council or by such person(s) as it may designate. The review may be conducted in conjunction with other franchise authorities. If the City Council designates reviewers, such reviewers shall provide a written report to the City Council in sufficient time to allow the City Council to exercise its options hereunder.

    4. After conducting such a review, unless the provisions of subparagraph (5) apply, City may select one of the following courses of action:

      1. After complying with the Cable Ordinance provisions on franchise modification, extend the term of this Agreement by a period of time no less than one year, and no more than four years, unless the Franchisee gives written notice that it object to such an extension. A written renewal notice from the Franchisee submitted during the aforesaid six-month period requesting commencement of a renewal proceeding under 47 USC section 546(a) shall not constitute an objection to extension unless it contains an express statement of such objection, but in the event of an extension, such renewal notice shall continue in effect through all additional extension cycles, In the event of such an extension, the City shall conduct another review of the Cable System pursuant to this subsection on a schedule based on the expiration date of this Agreement as extended. Such cycle of reviews and extensions may be repeated as often as deemed appropriate by the City subject to the terms of this Agreement and the Cable Ordinance. No extension shall affect the obligations of the Guarantors hereunder. No extension shall require payment of renewal fees by the Franchisee.

      2. Commence a franchise renewal proceeding under 47 USC section 546(a).

      3. Conduct informal franchise renewal negotiations under 47 U.S.C. section 546(h).

      4. Conclude the review process (except the City shall comply with the Cable Act if the Franchisee submits a timely written renewal notice that is not withdrawn).

    5. This review process shall not override any remedies of the City, including but not limited to remedies of revocation. (Ord. 2832; Ord. 3823, §1)

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Sec. 16-35. Regulation and Oversight.

  1. Severability: In the event that a court or agency of competent jurisdiction declares by final decision that any provision of this Franchise Agreement is unenforceable according to its terms or is otherwise void, said provision shall be considered a separate, distinct and independent part of this Agreement, and such declaration shall not affect the validity and enforceability of all other provisions of this Agreement. Alternatively, the City may modify any such provisions to the reasonable extent necessary to make such provision enforceable if such modifications are consistent with the full intent and purposes of this Agreement.

  2. Preemption: In the event that federal or state laws, rules or regulations preempt a provision or limit the enforceability of a provision of this Agreement, then, subject to the City’s rights under the foregoing subsection, the provision shall be read to be preempted to the extent and for the time, bur only to the extent and for the time, required by law. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, without the requirement of further action on the part of the City.

  3. Notice: As soon as reasonably practicable following knowledge thereof, the Franchisee shall notify the City of any point of conflict believed to exist between the Cable Ordinance, this Agreement and any other provisions of law. By executing this Agreement, Franchisee represents that it is not aware of any such conflict at the time of such execution, other than that which it has already stated and objected to in writing. (Ord. 2832; Ord. 3823, §1)

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Sec. 16-36. Provision of Cable Service.

The Franchisee shall make Cable Service available to all Persons within the Franchise Area who request Service, so long as their financial and other obligations to the Franchisee are satisfied, and subject to reasonable construction standards and schedules and subject to availability of legal access to the location. Franchisee shall extend its System. (Ord. 2832; Ord. 3823, §1)

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Sec. 16-37. System Facilities, Equipment and Services.

(a) System: The Franchisee’s Cable System shall at all times meet or exceed its capacity and quality as of the last day of the Prior Franchise.

(b) Emergency Alert: The Franchisee shall provide for an emergency alert override to the extent reasonably feasible and, at a minimum, in full compliance with FCC Guidelines. (Ord. 2832; Ord. 3823, §1)

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Sec. 16-38. Channels and Facilities for Public, Educational and Governmental Use.

(a) Access Channels:

(b) Management of Channels: The City may designate one (1) or more entities, including a non-profit access management corporation, to manage the use of all or part of the public, educational, and governmental access channels consistent with the City’s rules, regulations and procedures. Franchise shall not be obligated to deal with such designated entity and may deal directly with City on all access channel matters.

(c) Editorial Control: Except as expressly permitted by federal law, the Franchisee shall not exercise any editorial control over the content of programming on the designated access channels (except for Franchisee’s own programming cablecast on those channels).

(d) Unused Capacity: Franchisee may provide programming on any unused capacity of PEG channels.

(e) Copyright Protection: Franchisee shall not duplicate any original programming for which the access channels have exclusive copyrights. (Ord. 2832; Ord. 3823, §1)

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Sec. 16-39. Franchise Fee.

(a) Payment of Franchise Fee. The Franchisee shall pay a Franchise fee for the use of the City’s Right-of-Way and to compensate the City for all costs associated with administering and regulating the cable system. The amount of the Franchisee fee shall be five percent (5%) of the Franchisee’s annual Gross Revenues and such fee shall be paid on a quarterly basis within sixty days after the end of the quarter.

(b) Reporting and Auditing of Fee Payments.

(Ord. 2832; Ord. 3823, §1)

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Sec. 16-40. Insurance, Indemnification.

  1. Insurance Required: Franchisee shall maintain throughout the entire length of the Franchise period, at least the following liability insurance coverage insuring the City and the Franchisee: worker’s compensation and employer liability insurance to meet all requirements of Missouri law and comprehensive general liability insurance with respect to the construction, operation, and maintenance of the Cable System, and the conduct of the Franchisee’s business in the City, in the minimum amounts of:

    1. $2,000,000 for property damage resulting from any one accident;
    2. $5,000,000 for personal bodily injury or death resulting from any one accident; and
    3. $2,000,000 for all other types of liability.

      Neither the provisions of this Section nor any damages recovered by the City shall be construed to limit the liability of Franchisee for damages under the Franchise.

  2. Qualifications of Sureties: All insurance policies shall be with sureties qualified to do business in the State of Missouri with a B+7 or better rating of insurance by Best’s Key Rating Guide, Property/Casualty Edition, and in a form approved by the City.

  3. Policies Available for Review: All insurance policies shall be available for review by the City, and Franchisee shall keep on file with the city certificates of insurance.

  4. Additional Insureds; Prior Notice of Policy Cancellation: All general liability insurance policies shall name the City, its officers, boards, board members, commissions, commissioners, agents, and employees as additional insureds and shall further provide that any cancellation or reduction in coverage shall not be effective unless thirty (30) days’ prior written notice thereof has been given to the City Clerk. Franchisee shall not cancel any required insurance policy without submission of proof that the Franchisee has obtained alternative insurance reasonably satisfactory to the City Council that complies with the Cable Ordinance and this Franchise Agreement.

  5. Failure Constitutes Material Violation. Failure to comply with the insurance requirements set forth in this Section shall constitute a material violation of the Franchise.

  6. Indemnification:

    1. Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the City, its officials, boards, board members, commissions, commissioners, agents, and employees, against any and all claims, suits, causes of action, proceedings, and judgments for damages or equitable relief arising out of the construction, maintenance, or operation of its Cable System; copyright infringements or a failure by the Franchisee to secure consents from the owners, authorized distributors, or licensees of programs to be delivered by the Cable System; the conduct of the Franchisee’s business in the City; or in any way arising out of the granting of the Franchise or Franchisee’s enjoyment or exercise of this Franchise, regardless of whether the act or omission complained of is authorized, allowed, or prohibited by the Cable Ordinance or this Franchise Agreement.

    2. Specifically, but not by way of limitation on the scope of (1) above, Franchisee shall, at its sole cost and expense, fully indemnify, defend, and hold harmless the City, and in their capacity as such, the officers, agents, and employees thereof, from and against any and all claims, suits, actions, liability, and judgments for damages or otherwise subject to Section 638 of the Cable Act, 47 U.S.C. section 558, arising out of or alleged to arise out of the installation, construction, operation, or maintenance of its System, including but not limited to any claim against the Franchisee for invasion of the right of privacy, defamation of any Person, or the violation or infringement of any copyright, trade mark, trade name, service mark, or patent, or of any other similar right of any Person. This indemnity does not apply to programming carried on any channel set aside for public, educational, or government use, or channels leased pursuant to 47 U.S.C. section 532, unless the Franchisee refused to carry programming which Franchise believed was indecent or obscene programming and which the City noted in writing its believe that it should be carried.

    3. The indemnity provision includes, but is not limited to, the City’s reasonable attorneys’ fees incurred in defending against any such claim, suit, or proceeding prior to Franchisee assuming such defense. The City shall notify Franchisee of claims and suits as soon as practicable, but failure to give such notice shall not relieve Franchisee of its obligations hereunder. Once Franchisee assumes such defense, the City may at its option continue to participate in the defense at its own expense.

    4. Notwithstanding anything to the contrary contained in this Agreement, the City shall not be so indemnified or reimbursed in relation to any amounts attributable to the City’s own negligence, willful misconduct, intentional or criminal acts, including in the performance of its obligations under the Cable Ordinance or this Franchise Agreement.

(Ord. 2832; Ord. 3823, §1)

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Sec. 16-41. Franchise Violations.

  1. Procedures Notice and Cure.
    1. In the event of an alleged violation of the franchise, the following procedures shall be followed.

    2. The City shall send to the Franchisee, by certified mail, a notice of any alleged violation(s) or failure to meet any of the terms or provisions of this Ordinance that shall set forth a detailed description of any alleged violation(s).

    3. The Franchisee shall have thirty (30) days from the date of receipt of such notice to respond in writing, stating its explanation for the alleged violation(s) and what actions, if any, have been or will be taken to cure the alleged violation(s) or lack of compliance.

    4. The City may accept the Franchisee’s explanation and/or remedy proposed. Alternatively, if the City does not accept the Franchisee’s explanation or believes that the violation(s) will not be cured within a reasonable period of time, it may send to the Franchisee a Notice of Violation at any time after the initial thirty (30) day period has elapsed.

    5. If a Notice of Violation is issued, a hearing shall be held by the City that shall afford the Franchisee due process and an opportunity to present evidence. The City shall thereafter issue a written report stating its conclusions and the reason therefore. The City may determine (a) that any alleged violation has been correct or is being corrected by the Franchisee and that no further action is required; (b) that an extension of the time or other appropriate relief should be granted; (c) that the problem is beyond the Franchisee’s direct control and that the Franchisee is therefore not at fault; or, that the Franchisee is in violation of its franchise and appropriate action will be taken by the City. Nothing in this Section shall be construed to limit or restrict the Franchisee’s right to appeal the City’s actions in state or federal court.

    6. In the case of any alleged violation of federal, state or local technical standards or safety codes which do not pose a substantial safety hazard, the Franchisee shall be given reasonable time to complete any required modifications or repairs which may be needed and the City shall not assess any penalty against the Franchisee so long as the Franchisee shows that it is working promptly, diligently and in good faith to correct any alleged technical violations. A “substantial safety hazard” shall be defined as one posing an imminent likelihood of causing significant bodily injury if not repaired immediately.

  2. Franchise Termination and Continuity of Service.

    1. In the event of a formal denial of renewal or revocation of a franchise – which denial or revocation is upheld by final judicial determination, including final adjudication of any appeal(s) which may be filed – the Franchisee shall have a period of one (1) year from final adjudication, including any appeal, within which to transfer or convey the assets of the cable system. Approval of such proposed transfer or assignment shall not be unreasonably withheld by the City.

    2. In the event the franchise term expires prior to formal action being taken by the City to renew the franchise or deny franchise renewal, the Franchisee shall continue to operate the cable system pursuant to the terms and conditions of its then existing franchise until the franchise is extended, renewed or denied pursuant to applicable federal law and the provisions of this franchise. The renewal procedures contained in Section 626 of the Cable Communications Policy Act of 1984, as amended, shall be followed by the City and the Franchisee.

    3. Either Franchisee or Franchisor may elect to terminate this Franchise on February 18, 2017 by giving the other party written notice at least 37 months prior to the termination date.

  3. Force Majeure. In the event the Franchisee is prevented or delayed in the performance of any of its obligations under this Ordinance by reason of flood, fires, hurricanes, tornadoes, earthquakes or other acts of God, unavoidable casualty, insurrections, war, riot, sabotage, vandalism, strikes, boycotts, lockouts, labor disputes, or omissions or delays by utility companies upon whom Franchisee is dependent for pole attachments or easement use, shall have a reasonable time under the circumstances to perform its obligations under this Ordinance or to procure a reasonable and comparable substitute for such obligations. Under such circumstances the Franchisee shall not be held in default or noncompliance with the provisions of the Ordinance nor shall it suffer any penalty relating thereto. (Ord. 2832; Ord. 3823, §1)

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Sec. 16-42. Miscellaneous Provisions.

  1. Governing Law: This Franchise Agreement was made in and shall be governed in all respects by the law of the State of Missouri.

  2. Notices: Unless otherwise expressly stated herein, notices required under this Franchise Agreement shall be mailed first class, postage prepaid, to the addressees below. Each party may change its designee by providing written notice to the other party, but each party may only designate one entity to receive notice.

    1. Notices to the Franchisee shall be mailed to:

      FIDELITY CABLEVISION, INC.
      Attention: Legal Department
      64 North Clark Street
      Sullivan, Missouri 63080

    2. Notices to the City shall be mailed to:

      City Clerk
      City of Rolla
      901 North Elm Street
      Rolla, Missouri 65401

  3. Time of Essence: In determining whether the Franchisee has substantially complied with this Franchise Agreement, the parties agree that time is of the essence.

  4. Captions: The captions and headings of this Agreement are for convenience and reference purposes only, and shall not affect in any way the meaning and interpretation of any provisions of this Agreement.

  5. Integration: This Agreement set forth the entire agreement between the parties respecting the subject matter hereof. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any party to another with respect to the subject matter of this Agreement. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties with respect to the subject matter hereof are waived, merged herein and therein and superseded hereby and thereby.

  6. Office: Franchise shall maintain a local office for payments.

AGREED TO THIS ______________ DAY OF ___________________, 2007.

FIDELITY CABLEVISION, INC.

__________________________
Name: _____________________
Title: ______________________
Authorized Officer

(Ord. 2832; Ord. 3823, §1)

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Secs. 16-43 to 16-45. Reserved.

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Division 3 - Cable Television Contract: April 7, 2003

Sec. 16-46. Intent.

The City of Rolla, Missouri (hereinafter also referred to and known as Grantor) hereby grants to Ark-Mo Cable TV, Inc., d/b/a Phelps County Cable TV (hereinafter referred to and known as Grantee) a cable television franchise in accordance with the provisions of Ordinance No. 2831 and this Ordinance. (Ord. 3556, §1)

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Sec. 16-47. Short title.

This ordinance shall be known and may be cited as the "Ark-Mo Cable TV, Inc., d/b/a Phelps County Cable TV Ordinance". This ordinance is referred to in Ordinance No. 2831 as the "franchise award ordinance". (Ord. 3556, §2)

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Sec. 16-48. Definitions.

All words, terms, phrases and their derivations shall have the meanings set forth in Ordinance No. 2831, unless otherwise specifically excepted herein. (Ord. 3556, §3)

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Sec. 16-49. Granting of franchise.

  1. Grant. Ark-Mo Cable TV, Inc., d/b/a Phelps County Cable TV (Grantee) is hereby granted a nonexclusive revocable franchise to construct, operate, maintain and reconstruct a cable television system within the present and future limits of the City (Grantor). The franchise is granted subject to the requirements contained in Ordinance No. 2831 and the provision set forth herein.

  2. Right to Issue Franchise. Grantee acknowledges and accepts the right of Grantor to issue a franchise and Grantee agrees it shall not now or at any time hereafter challenge this right in any way or in any City, State or Federal Court.

  3. Right to Delegate Regulation. Grantee acknowledges and accepts the right of Grantor, at Grantor's sole option, to delegate regulatory powers to a properly authorized entity, and Grantee agrees it shall not now or at any time hereafter challenge this right in any way in any City, State or Federal Court.

  4. Effective Franchise Date. The effective date of the franchise shall be the date of final passage of this ordinance; provided that if Grantee does not file with the City Clerk within twenty (20) days after notification of final passage a written, signed and notarized acceptance of all terms and conditions of the franchise, the franchise shall be null and void.

  5. Term of Franchise. The term of the franchise shall be fifteen (15) years from the effective date subject to the limitations herein, at which time it shall expire and be of no force and effect; provided, that the Grantor may renew the franchise in accordance with the provisions of Ordinance No. 2831, or then applicable law.

  6. Franchise Fees. For any twelve (12) month period, the franchise fees to be paid to Grantor by Grantee shall be five percent (5%) of Grantee's gross subscriber service revenues derived in such period from the operation of the cable system. Grantee shall calculate the five percent (5%) and then add said franchise fee to the subscriber’s monthly bill as a separate line item designated "franchise fees payable to City". In the event that the FCC or other regulatory bodies mandate that the Company obtain and pay a fee for the right to rebroadcast the signals of commercial television or radio stations, the charge for such right, may, at the Company's sole option, be passed on to the subscriber on a pro rata basis and no Franchise Fee shall be charged on such passed through costs. Such franchise fees shall be paid semi-annually beginning with the period ending June 30, 2003, and every six (6) months thereafter. Payment shall be made in full within ninety (90) days of the end of the applicable period.

  7. Rates and Programming. Initial rates shall be established as set out on Addendum A. Likewise, initial programming shall be as set out on Addendum A. Grantor shall regulate rates as the law allows, or at its discretion, as set out in Ordinance No. 2831. However, during such time as two or more cable communications systems, or any MMDS (multi-channel, multi-point distribution system) or other multi-channel distribution system, ever exist in the City, and provided each such system makes their services available to fifty percent (50%) or more of the existing homes in the City with a ten percent (10%) penetration, effective competition shall be deemed to exist. Grantee shall not alter the definition of Basic Cable Service, as set out on Addendum A, without the approval of Grantor, which can only be made by Amendment of this Ordinance. (Ord. 3556, §4)

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Sec. 16-50. Improvements requirements.

(1) System Improvement Schedule. The cable television system service shall be offered to all City residents in the initial service area immediately from the effective date of this Ordinance. The cable television systems service shall be offered to all City residents within sixty (60) months of the effective date of this Ordinance.

(2) Initial Service Area. The initial service area shall include that area known as the "southside annexation area" and as more particularly described in Ordinance No. 3227.

(3) Line Extension Policy.

(A) Unoccupied Areas - - Platted and Unplatted. Also at the time of system improvements, service shall be extended to unoccupied platted and non-platted areas upon request and at the normal per foot cost to the requesting person for the time and materials.

(B) Newly Annexed Area. After initial service and improvements are completed, service to occupied buildings in platted subdivisions containing thirty (30) or more occupied non-commercial buildings per cable plant mile in newly annexed areas shall be provided within six (6) months.

(C) Areas Not Meeting Line Extension Policy. In areas not meeting the line extension policy of 30 homes per cable mile, service shall be provided according to the following formula:

Base costs of construction per mile divided by the number of requesting subscribers per mile, minus a sum equal to base construction costs divided by 30 homes per mile equals the cost to individual subscribers for the extension service.

FOR EXAMPLE:

$7500 Presumed base cost of construction. Subscribers requesting.

15

$ 500

$ 250 Sum equals to base construction cost divided by 30 homes per mile.

equals 250 Cost to requesting subscriber.

(4) Annual Report of Grantee.

(A) Contents of Report. Grantee shall report to Grantor the following information on an annual basis: total number of line extension requests received during the previous calendar year; brief description of each request and the disposition or result of the request; report of all line extension or expansion by Grantee during the previous calendar year not otherwise disclosed in report, to include area of line extension or expansion and total number of accounts established in the area of expansion.

(B) Date of Report. The above report shall be due each year no later than February 15th of each year. (Ord. 3556, §5)

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Sec. 16-51. System design and performance standards.

  1. System Configuration. The cable television system shall consist of a cable network as defined in Section 16-13(3) of Ordinance No. 2831.

  2. Channel Capacity. The cable television system shall be installed to delivery signals at frequencies up to four hundred fifty megahertz (450 MHz).

  3. Emergency Override. Grantee shall provide an emergency override capability to permit Grantor to interrupt and cablecast a message on all channels simultaneously in the event of disaster or public emergency.

  4. Performance Testing. Grantee shall perform all tests necessary to determine compliance with the technical standards as set out herein and the FCC, if any. Absent regulation by the FCC, system sweeping and balancing, and leakage tests shall occur at least semiannually, in the fall and spring.

    Written records of test results shall be maintained, and shall be available for Grantor's inspection upon request.

  5. Subscriber Service. Grantee shall provide to subscribers within the service area the following:

    1. TV Guide. A program guide accurately listing the various programs on the various channels. Each program shall be listed according to time, date and channel. The TV/program guide shall be made readily available to subscribers in the week prior to the week for which the TV/program guide is applicable. Compliance with this section may be achieved by continuing the provision of the program guide existing at the time of the passage of this Ordinance.

    2. Payment Center Accessible to Handicap. Grantee shall provide a payment center and/or business office accessible to handicapped persons. Grantee shall have ninety (90) days from the effective date of this ordinance to provide either a ground level entry to the business office or provide a ramp (which shall be built according to the same standards required of municipal governments to provide handicapped access existing at the time of the passage of this Ordinance). (Ord. 3556, §6)

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Sec. 16-52. Service and programming requirements.

(1) Initial Service and Programming. Grantee shall provide initial service and programming as set out in Addendum A. (Ord. 3556, §7)

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Sec. 16-53. Miscellaneous provisions.

  1. Intent. In order to achieve utilization of access channels that is in the best public interest, it is the intent of the City to ensure that the access and community channels are made available to various public, educational and governmental entities, such that these channels may be open to all residents of the City and available for all forms of public expression, community information, and debate of public issues. Grantee shall make available up to two (2) NTSC channels for use by public, educational and governmental entities. The City Council shall designate the entity to be assigned to each available channel. If all channels are not assigned, then the unassigned channels shall remain available for future assignments by the City Council. Each entity chosen or designated to receive a channel shall substantially follow forms, functions and procedures hereinafter set.

  2. Functions. The entity to whom the public access channel has been granted shall have the following functions:

    1. Responsibility for program production for and management of the channel.

    2. To assure that no censorship or control over program content of the channel exists, except as necessary to comply with prohibition of material that is obscene, or the FCC prohibition of material that contains commercial advertising, or conducts a lottery.

    3. To devise, establish and administer all rules, regulations and procedures pertaining to the use and scheduling of the channel.

    4. To prepare, in conjunction with the company, such regular or special reports as may be required or desirable.

    5. To hire and supervise staff.

    6. To make all purchases of material and equipment that may be required.

    7. To develop additional sources of funding, such as foundation, Federal, or State grants, to further create programming.

    8. To perform such other functions relevant to the Public Access Channels as may be appropriate.

  3. Access Rules. The entity to whom a Public Access Channel is assigned shall complete a set of rules for the use of its Channel and which shall be promptly forwarded to the City, the rules shall, at a minimum, provide for:

    1. Access on a first-come, first-service nondiscriminatory basis for all residents of the City;

    2. Prohibition of advertising for commercial or political purpose, 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 procedures, which shall be retained by the entity for a period of two (2) years;

    5. Procedures by which individual or groups who violate any rule may be prevented from further access to the channel.

  4. FCC Required Tests. The inspection and evaluation shall comply with the technical standards set out in this Ordinance and Ordinance No. 2831 and with FCC standards, if any and if applicable, whichever are stricter. All FCC required tests shall be certified by Grantee and submitted to the City simultaneously with submittal by Grantee to the FCC.

  5. Activities Prohibited.

    1. The company shall not allow its cable or other operations to interfere with television reception of persons not served by the company, nor shall the System interfere with operators on other spectra or channels granted by the FCC, or obstruct or hinder in any manner, the operation of the various utilities serving the residents of the City.

    2. The company shall not, as to rates, charges, service facilities, rules, regulations, or in any other respect, make or grant any preference or advantage to any person, nor subject any person to any prejudice or disadvantage, provided that nothing in this franchise shall be deemed to prohibit the establishment of a graduated schedule of charges and classified rate schedules to which any customer coming within such classification would be entitled

  6. Compliance with Cable Act. Grantee and Grantor affirm by execution hereof that this process occurred by reason of the Cable Communications Policy Act of 1984, and that execution hereof signifies compliance with the completion of the requirements therein. (Ord. 3556, §8)

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Sec. 16-54. 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. (Ord. 3556, §9)

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Sec. 16-55. Forfeiture, revocation or abridgement.

The franchise granted herein may be revoked, forfeited or otherwise terminated per the terms and conditions set out in Ordinance No. 2831, Section 16-14 (10). (Ord. 3556, §10)

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Sec. 16-56 Effective date.

This order shall be in full force and effect after its approval. (Ord. 3556, §11)

Done this 7th Day of April, 2003.

APPROVED

________________________________

Honorable Joseph E. Morgan, Mayor

ATTEST:

__________________________________

Carol Daniels, City Clerk

The terms and conditions as stated in Section 16-49(4) of this Ordinance are hereby accepted by Ark-Mo Cable TV, Inc., d/b/a Phelps County Cable TV, as of this ____ day of ______, 2003.

Ark-Mo Cable TV, Inc., d/b/a Phelps County Cable TV

_________________________

Gene Barnett, Partner

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Secs. 16-57 to 16-72. Reserved.

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Article III - United Telephone Service Agreement*

Sec. 16-73. Granting a franchise to the United Telephone Company.

That the United Telephone Company of Missouri, a corporation organized under the laws of the State of Missouri, with a license to do business in the State of Missouri, its successors and assigns, be and they are hereby granted the right, in operating a telephone system, to construct and maintain all the necessary poles, wires, cables, underground conduits, fixtures, telephone plant, and telephone apparatus of whatsoever nature for the purpose of conducting such business, to erect and maintain such telephone poles and string the same with wire and cable along the streets, avenues, boulevards, alleys, easements and other public places of said City of Rolla, and to construct or lay and maintain such conduits as Grantee, its successors and assigns, may require, under the streets, avenues, boulevards, alleys, easements and other public places, aforesaid, for the purpose of such business under the following terms and restrictions, to-wit:

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Sec. 16-74. Term of license.

The term of this grant shall be for two (2) years from this date, subject to all ordinances regulating, taxing and controlling telephone lines or systems, in the City of Rolla, Missouri, and either party shall have the right to review and submit mutually agreed upon changes in writing to the other party. The agreement will be automatically renewed at this time for an additional two (2) years, until a total of twenty (20) years from this date; subject to the right of either the City of Rolla or the United Telephone Company of Missouri to give to the other written notice of non renewal at least sixty (60) days prior to the end of each two year period. (Ord. 2113, §1; Ord. 2716, §1.)

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Sec. 16-75. Service to subscribers.

The Grantee, its successors and assigns, shall conduct telephone business in such a manner as shall be to the benefit of the City of Rolla, and its inhabitants, rendering good telephone service at reasonable rates as authorized by the Missouri Public Service Commission, or any other state or local governmental agency charged by law with the power to regulate public utilities. (Ord. 2113, §2; Ord. 2716, §2.)

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Sec. 16-76. Construction and use of facilities.

All poles and overhead wires/cables or underground conduit erected or constructed under this Ordinance shall be placed, whether on streets, avenues, boulevards, alleys, easements or other public places, as not to interfere unnecessarily with ordinary travel on such streets, avenues, boulevards, alleys, easements or other public places. All poles erected or underground conduit constructed under this Ordinance shall be located as not to injure unnecessarily any drains, sewers, catch basins, or other like public improvements, and said Grantee shall forthwith repair any damages so caused to the satisfaction of the Administration of said City, and in default thereof, said City may repair such damage and charge the cost thereof to, and collect same from said Grantee. (Ord. 2113, §3; Ord. 2716, §3.)

*Licensing of telecommunications companies - See Ch. 25, Art. III.

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Sec. 16-77. Poles or underground conduits of the Grantee shall not interfere with other franchise business.

The poles or underground conduits of the Grantee, its successors and assigns, shall be placed, erected or constructed in such a manner as not unreasonably to interfere with the orderly conduct of the business and the rights of any other public utilities having a right or franchise to operate its business in said City. (Ord. 2113, §4; Ord. 2716, §4.)

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Sec. 16-78. Location of poles and underground conduit to be approved by City Administration.

All work of locating, erecting, relocating or removing of poles or placing underground conduit under and by virtue of this Ordinance, shall be done with the approval of the City Administration, or its authorized representatives. (Ord. 2113, §5; Ord. 2716, §5.)

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Sec. 16-79. General financial and insurance provisions.

  1. Indemnification.

    1. Extent. Grantee shall upon acceptance of the franchise award ordinance granted indemnify, defend and hold harmless the City, its officers, boards, commissions, agents, employees and from any and all claims, suits, judgments or damages in any way arising out of or through or alleged to arise out of or through the act of the city in granting a franchise award ordinance and the acts or omissions of Grantee, its servants, employees, or agents. Both such indemnifications shall cover such claims arising in tort, contracts, violations of U.S. or State Constitutions, statutes, ordinances, regulations, or from any source or on the basis of any theory whatsoever.

    2. Tender of Defense. In the event any such claims shall arise, the City shall tender the defense thereof to Grantee; provided, however, that the City, in its sole discretion, may participate in the defense of such claims at the expense of Grantor.
  2. Insurance.

    1. Kinds, Amounts. Grantee shall maintain through the term of the franchise award ordinance insurance in amounts at least as follows:

      1. Worker's Compensation Insurance: Such coverage as may be required by the worker's compensation insurance and safety laws of the State of Missouri and amendments thereto.

      2. Commercial General Liability: $1,000,000 combined single limit per occurrence for bodily injury or property damage liability.

      3. Business Automobile Liability: Insuring owned, non-owned and hired autos with limits of $1,000,000 combined single limit per accident for bodily injury and property damage liability.

    2. Copies Furnished. Grantee shall furnish the city with copies of such insurance policies or certificates of insurance, annually.

    3. Endorsement. Such insurance policies, excluding Worker's Compensation coverage, provided for herein shall name the city, its officers, boards, commissions, agents and employees as additional insureds and shall contain the following endorsement:

      Grantee shall furnish the city with certificates of insurance which will evidence that the insurance will not be cancelled or materially altered without first giving the city thirty (30) days prior written notice.

    4. No Limitation of Liability. The minimum amounts set forth herein for such insurance shall not be construed to limit the liability of Grantee to the city under the franchise award ordinance issued hereunder to the amounts of such insurance.

    5. Adjustment of Established Amounts. The city shall have the power from time to time to review the adequacy of the required insurance coverage amounts.

(Ord. 2113, §6 Ord. 2716, §6; Ord. 2858, §1.)

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Sec. 16-80. Movement of large structures or equipment under wires or cables.

The said telephone company shall remove, raise or adjust its aerial plant after forty-eight (48) hours notice by the Administration of the City of Rolla, or its authorized representatives;, for the purpose of permitting the moving of houses, or other structures, along the streets of said City; however, the person or persons for whose benefit such telephone plant is removed, raised or adjusted, shall first secure proper permission from said City for the moving and agree to pay said telephone company for its related costs and damages. If desired, an advance deposit by the mover may be required by the telephone company. (Ord. 2113, §7 Ord. 2716, §7.)

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Sec. 16-81. Cutting and trimming trees and shrubs.

When trees upon and/or overhanging streets, alleys, sidewalks, public places or easements of said City need to be trimmed so as to prevent the branches of such trees from coming in contact with any wires and/or cables on the poles, all the said trimming is to be done under the supervision and direction of any city official or representative to whom said duties have been or may be delegated and the cost for said trimming shall be prorated among all users of the poles and lines. (Ord. 2113, §8; Ord. 2716, §8.)

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Sec. 16-82. Joint use agreements of poles.

The telephone company shall, whenever feasible, enter into agreements with other public utilities operating within said City for the joint usage of poles. (Ord. 2113, §9; Ord. 2716, §9.)

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Sec. 16-83. Audit of Grantee required annually.

Grantee hereby agrees to furnish to the City of Rolla, Missouri, a certified statement of local service revenues on an annual basis. (Ord. 2113, §10; Ord. 2716, §10.)

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Sec. 16-84. License payments.

In consideration for rights and privileges herein granted, the said telephone company shall pay five (5%) percent of local service revenues to the City of Rolla effective January 1, 1990, and such payments shall be made quarterly for each year of the period covered during the term of this Franchise. Same shall be in lieu of any general or special license tax, occupation tax, or any other such tax for the period covered during the terms of this Ordinance. (Ord. 2113, §12; Ord. 2716, §11.)

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Sec. 16-85. City to review and establish license payments.

Said City shall at the close of each second year of this agreement, review the percent of local service revenues and establish the percent to be collected for the following two year period. (Ord. 2113, §11; Ord. 2716, §12.)

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Sec. 16-86. Acceptance of license to be filed with city clerk.

Said telephone company shall file its acceptance of this Ordinance with the clerk of said City, within thirty (30) days after its passage and approval. (Ord. 2113, §13; Ord. 2716, §13.)

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Sec. 16-87. Forfeiture of franchise.

Failure to comply with the terms and conditions of this Ordinance shall work a forfeiture of this franchise. (Ord. 2113, §14; Ord. 2716, §14.)

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Sec. 16-88. Terms may apply to succeeding Grantees.

The franchise, as well as the rights hereunder, may be assigned by the Grantee as well as all succeeding Grantees, at their option, and the assigns shall succeed to all the rights, duties and liabilities of the Grantee hereunder. (Ord. 2113, §15; Ord. 2716, §15.)

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Sec. 16-89. Severability.

All ordinances or parts of ordinances in conflict herewith are hereby repealed. (Ord. 2113, §16; Ord. 2716, §16.)

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Sec. 16-90. Effective date.

This ordinance shall be in full force and effect from and after its passage and approval

PASSED BY THE CITY COUNCIL OF THE CITY OF ROLLA, MISSOURI, AND APPROVED BY THE MAYOR THIS 8TH DAY OF JANUARY 1990.

APPROVED:

Floyd Ferrell (Signed)

Mayor

ATTEST:

Carol Daniels (Signed)

City Clerk

APPROVED AS TO FORM:

J. W. Wiggins (Signed)

City Counselor (Ord. No. 2113, §17; Ord. 2716, § 17.)

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Secs. 16-91 to 16-95. Reserved.

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Article IV - Natural Gas Service Franchise

Sec. 16-96. Grant.

The City of Rolla, Missouri (hereinafter "City") hereby grants a franchise to UtiliCorp United Inc., a Delaware corporation doing business as Missouri Public Service (hereinafter "Grantee"), its successors and assigns to construct, reconstruct, excavate for, place, maintain, repair, operate, and use all necessary or appropriate mains, service pipes, conduits, conductors, tanks, vaporizers, underground vaults, regulators, and other equipment with all necessary or appropriate appurtenances and appliances in connection therewith, in, along, across, over, and under the streets, roads, alleys, sidewalks, bridges, and other public places within the present and future corporate limits of the City, and areas dedicated to the City for public utility use with and said use of public rights of way and public places being subject to the approval of the Public Works Director or the Rolla Municipal Utilities General Manager, for the purpose of furnishing, transporting, and distributing gas for light, heat, power, and other purposes within City, and in territory adjacent to City and for the purpose of transporting and transmitting gas through City, all such equipment, appliances, and apparatus to be installed and maintained with due regard to rightful use by other persons, with vehicles or otherwise, of the streets, roads, alleys, sidewalks, bridges, and other public places and areas dedicated to City for public utility use. (Ord. 2924, §1)

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Sec. 16-97. Construction, construction schedule.

This grant of franchise authority shall be conditioned upon Grantee beginning construction within 1) twelve (12) months of approval by the Missouri Public Service Commission (hereinafter "PSC"), or b) contract date of gas acquisition from a gas pipeline entity with a metering point at City, whichever last occurs. Grantee agrees to use its best efforts to negotiate a contract for gas acquisition as soon as practicable.

Grantee estimates that a substantial portion of the initial distribution system will be complete within three (3) years of commencement of construction of the distribution system, unless events occur beyond the reasonable control of Grantee.

Grantee agrees that the plan submitted to the Director of Public Works on May 20, 1993, shall serve as Grantee's tentative preliminary construction plan.

Grantee further agrees to provide the City's Public Works Director, upon request by City, copies of construction design drawings and construction specifications relating to construction of the City's gas system (hereinafter "the distribution system") filed with the Missouri Public Service Commission (hereinafter "PSC"). (Ord. 2924, §2)

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Sec. 16-98. PSC rates and regulations.

Grantee shall propose initial and subsequent rates to the PSC subject to approval by the PSC. Grantee shall seek approval of the PSC to permit Grantee to convert, as is economically justifiable, Rolla residential house piping from LP gas to natural gas at no cost to customers during the phase of initial construction of the distribution system. The conversion program proposal is subject to PSC approval. (Ord. 2924, §3)

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Sec. 16-99. Gas supply.

Grantee shall furnish reasonable assurance to City of the availability of a gas supply at competitive prices prior to commencing initial construction of the distribution system. This section shall not apply following commencement of the initial construction of the distribution system. (Ord. 2924, §4)

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Sec. 16-100. Extensions of system.

Extensions of, and additions to, the distribution system maintained by Grantee, its successors or assigns, in the City shall be made in accordance with the Rules and Regulations of the PSC. (Ord. 2924, §5)

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Sec. 16-101. Mortgage of assets allowed.

Grantee may make, execute, or enter into any deed, deed of trust, mortgage, conditional sales contract, or any loan, lease, pledge, sale, gift, or similar agreement concerning any of the facilities and property, real or personal, involved in the operation of the distribution system. (Ord. 2924, §6)

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Sec. 16-102. Indemnity.

Grantee shall hold said City harmless from all liability imposed upon it on account of injury or damage to person or property caused by Grantee, its contractors, subcontractors, agents, or employees in the course of or in connection with any construction, reconstruction, excavation, placement, maintenance, operation, or use of mains, service pipes, conduits, conductors, tanks, vaporizers, underground vaults, regulators, and other equipment, in, along, across, or under any of the streets, roads, alleys, sidewalks, bridges, or other public places in the City in the exercise of any of the rights and privileges conferred by this Ordinance. Rather than enter into a separate agreement with Rolla, MPS agrees to this Section 16-102 as its indemnification and hold harmless agreement with Rolla. (Ord. 2924, §7)

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Sec. 16-103. Franchise fee.

As part of the consideration for the rights and privileges conferred by this Ordinance, Grantee shall pay to City in the manner and subject to applicable tariffs and the terms and conditions as hereinafter set forth, an amount equal to five percent (5%) of its gross receipts from sales of gas and/or gas transportation service from each customer (hereinafter "Franchise Fee").

The obligation of Grantee with respect to the Franchise Fee as herein provided shall remain in full force and effect during the term of this Franchise until, and will terminate upon, the effective date of the levy or imposition by City, in the manner provided by law, of any lawful tax as now or as may hereafter be applicable to the business of distributing or selling gas and/or gas transportation service, or upon the proceeds of sales of gas or the receipts from gas transportation service or upon the right or privilege of engaging in such business within said corporate limits, whether said tax be designated as an occupation tax, a license tax, or otherwise; but not including a sales tax levied or imposed pursuant to the City Sales Tax Act or any other applicable tax law.

Grantee shall pay the Franchise Fee herein provided monthly, and said fee shall be computed upon the basis of gross revenue from the first day through the last day of each month beginning the second calendar month after the effective date of this Franchise. The Grantee shall calculate the Franchise Fee due said City monthly, and within sixty (60) days after the last day of each month file a statement notifying said City of the amount of gross revenue subject to the payment of the said Fee which was received during the month, and at the time of filing such statement shall pay to said City the Fee due.

The term "gross receipts" means the aggregate amount of all sales and charges from the business of supplying gas or gas transportation service made by Grantee or any affiliated company of Grantee in said municipality during any period less discounts, late payment charges, credits, refunds, sales taxes, franchise fees, and uncollectible accounts. Gross receipts derived from the furnishing of such service to City shall not be included in gross receipts nor shall the Franchise Fee be due on such gross receipts. (Ord. 3066, §2).

City may grant a twelve (12) month abatement of this Franchise Fee to an industry which:

  1. Announces it will create twenty-five (25) or more full-time equivalent positions for which City is able to apply for a Community Development Block Grant for infrastructure improvements, or

  2. Has created during the most recent twelve (12) months, twenty-five (25) or more full-time equivalent positions in the City over the preceding twelve (12) month period. One full-time equivalent position shall be equal to one thousand eight hundred (1,800) hours worked over the preceding twelve (12) months. Adequate personnel records shall be provided for review to substantiate the application for abatement.

Grantee shall be notified in writing by City of such abatement. Abatement shall commence on the beginning of Grantee's gas billing cycle next following Grantee's receipt of the notice of abatement. (Ord. 2924, §8)

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Sec. 16-104. Revocation.

  1. Grounds for revocation. Subject to the "Procedures Prior to Revocation" provided herein, City reserves the right to revoke any franchise granted hereunder and rescinds all rights and privileges associated with the Franchise in the following circumstances, each of which shall represent a default and breach under this Franchise:

    1. If Grantee should fail to perform any of its material obligation under this Ordinance or under such documents, contracts, and other terms and provisions entered into by and between City and Grantee.

    2. If Grantee should fail to provide or maintain in full force and effect, the liability coverage as required herein.

    3. If within the distribution system, Grantee ceases to provide services mandated by the PSC for any reason within the reasonable control of Grantee, this action shall not prevent Grantee from discontinuing service for nonpayment, where residences or commercial establishments are vacant or have ceased to be operational, or any other reason permitted under Grantee's tariff on file with the PSC.

      Grantee shall not be declared in default 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 Grantee's control. A default shall not be deemed to be beyond Grantee's control if committed by a corporation or other business entity in which Grantee holds a controlling interest or which holds a controlling interest in Grantee, whether held directly or indirectly.

  2. Procedure prior to revocation.

    1. City shall make written demand in sufficient detail so that the complaint can be understood that Grantee must comply and to what extent Grantee must comply with any such requirement, limitation term, condition, rule or regulation, or correct any action deemed cause for revocation. If the failure, refusal, or neglect of Grantee continues for a period of thirty (30) days following such written demand, City may place its request for termination of the Franchise upon a regular Council meeting agenda. 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 circulation within the City.

    2. The Council shall hear any persons interested therein, and shall determine, in its discretion, whether or not any failure, refusal or neglect by Grantee was with just cause.

    3. If such failure, refusal or neglect by Grantee was with just cause, the Council shall direct Grantee to comply within such times and manner and upon such terms and conditions as are reasonable.

    4. If the Council shall determine such failure, refusal, or neglect by Grantee was without just cause, then the Council may, by resolution, declare that the Franchise of such Grantee shall be terminated unless there be compliance by the Grantee within such period as the Council may set. (Ord. 2924, §9)

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Sec. 16-105. Insurance.

Types and amounts of insurance will be carried in accordance with PSC requirements, if any. Grantee shall provide a Certificate of Insurance for General Commercial Liability coverage in the amount of Two Million Dollars ($2,000,000.00) per occurrence. The Certificate of Insurance shall name the City as additional Insured with respect to liability coverage arising within the corporate boundaries of Rolla. Grantee will also provide a Certificate of Insurance showing proof of Workers' Compensation Insurance. Grantee additionally shall provide a Certificate of Insurance for Vehicle and Equipment Liability Insurance in the amount of One Million Dollars ($1,000,000.00) per occurrence. The Certificate of Insurance shall name the City as additional Insured with respect to liability coverage arising within the corporate boundaries of Rolla.

All three of the required Insurance Certificates shall be provided ten (10) days' advance notice to City in the event of policy cancellation, termination, or insurance provider changes. Upon request of Rolla, all required Certificates of Insurance shall be submitted to the City. (Ord. 2924, §10)

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Sec. 16-106. Right-of-way usage.

  1. Notification of construction. Grantee shall notify City prior to the commencement of activity of its intention to commence construction in any streets. City shall cooperate with Grantee in granting any permits required. Proposed construction shall be performed in accordance with the pertinent provisions of the Ordinance of the City.

  2. Minimum interference. All gas lines, equipment, and structures shall be so installed and located insofar as is practical 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 and adequate condition and in good order and repair. Grantee shall, at all times, employ ordinary care and shall install and maintain commonly accepted methods and devices for preventing failure and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares, or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any other fixtures placed in any public way by Grantee shall be placed in such a manner as not to unduly interfere with the usual travel on such public way.

  3. Restoration of streets. Whenever 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 Grantee in any hard surface pavement in any street, alley, or public highway, Grantee shall promptly refill the opening and restore the pavement. City may refill and/or repave in case of neglect of Grantee. The cost thereof, including the cost of inspection and supervision, shall be paid by Grantee. All excavations made by Grantee in the streets, alleys, and public highways shall be properly safeguarded for the prevention of accidents.

  4. Removal of facilities. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the City's emergency personnel to remove any of Grantee's facilities, no charge shall be made by Grantee against City for restoration and repair, unless such acts amount to gross negligence by City. Grantee shall be notified immediately by the City of such removal of facilities.

  5. Improvements by City. With respect to any property of Grantee located over, on, or under City streets, roads, alleys, sidewalks, bridges, or other public places within the corporate limits of City, Grantee at its expense shall protect, support, 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 street grade, installation of sewers, drains, water pipes, power lines, signal lines, transportation facilities, tracks, or any other types of structures, improvements by governmental agencies, whether acting in a governmental or proprietary capacity, or any other structure or public improvement. Grantee shall in all cases have the privilege, subject to the corresponding obligations, to abandon any property of Grantee in place. In exercising these rights, City will use its best efforts and judgment to weigh the interest of all involved parties, and to take into consideration the most cost-effective manner of making any changes in the location. 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.

  6. Payment upon Grantee's failure. Upon failure of Grantee to commence, pursue, or complete any work required by law or by the provisions of this Franchise to be done in repairing any street, within the time prescribed in a permit issued by City to Grantee and to the reasonable satisfaction of the City, Grantee shall pay to City the cost thereof in the itemized amounts reported by City to Grantee within thirty (30) days after receipt of such itemized report.

  7. Reservations of street rights. Nothing in the Franchise shall be construed to prevent City from constructing sewers, grading, paving, repairing, and/or altering any street, alley, or public highway, or laying, repairing, or removing water main or 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 operation of the wire, pipes, or appurtenances of Grantee. If any such property of 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 line or water main, the improvement of a street or any other public improvement, all such wires, conduits, or other appliances and facilities shall be removed, left in place, or replaced in such manner as shall be directed by Grantee so that the same shall not interfere with the said public work of City, and in the event that when said property of Grantee was installed by Grantee the property was over, on, or under City streets, roads, alleys, sidewalks, bridges, or other public places within the corporate limits of the City, such removal or replacement shall be at the expense of Grantee. In exercising these rights, City will use its best efforts and judgment to weigh the interest of all involved parties, and to take into consideration the most cost-effective manner of making any changes in the location.

  8. In the event of such vacation or discontinued use, City shall provide an easement for any existing portions of Grantee's facilities which are located in vacated or to be abandoned streets, alleys, public highways, or any portions thereof. (Ord. 2924, §11)

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Sec. 16-107. Maintenance and complaints.

  1. Business office. Grantee shall maintain an appropriate business office within the City limits of Rolla which shall be open during all usual business hours, have a publicly listed telephone toll free to residents of City, and be so operated to receive subscriber complaints and requests for repairs or adjustments on a twenty-four (24) hour basis. All complaints and documentation thereof shall be handled in accordance with the Rules and Regulations of the PSC.

  2. Repairs. Grantee shall conduct its repair service in accordance with the service standards prescribed by the PSC.

  3. Information to subscribers. Grantee shall furnish to each subscriber at the time service is installed, written instructions that clearly set forth procedures for making inquiries or complaints, including the name, address, and legal 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 administration of the Franchise with the address and telephone number of the office. (Ord. 2924, §12)

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Sec. 16-108. Captions.

The captions to sections through 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 Ordinance. (Ord. 2924, §13)

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Sec. 16-109. Nonenforcement by City.

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 City to enforce compliance.

A. No recourse against city. Grantee shall have no recourse whatsoever against City 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 lawful and valid enforcement of this Franchise. (Ord. 2924, §14)

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Sec. 16-110. Theft of service and tampering.

  1. Violation. No person, whether or not a customer of Grantee may intentionally or knowingly damage or cause to be damaged, any fixture, conduit, equipment, or apparatus of Grantee, or commit any act with intent to cause such damage, or to tap, tamper with, or otherwise connect device to a fixture, conduit, pipe, equipment, and apparatus or appurtenances of Grantee with the intent to obtain gas from the distribution system without authorization from Grantee and/or compensation to Grantee, or to obtain gas with intent to cheat or defraud Grantee of any lawful charge to which it is entitled.

  2. Punishment. Any person convicted of violating any provision 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. (Ord. 2924, §15)

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Sec. 16-111. 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. (Ord. 2924, §16)

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Sec. 16-112. Election and acceptance required.

This Ordinance shall not be effective unless and until the grant of rights, permission, and authority herein contained are approved by a majority of the qualified voters voting hereon at an election, pursuant to another Ordinance providing for such election. If such grant is so approved at such election, this Ordinance, and the grant herein contained shall be and continue in force and effect for a period of twenty (20) years from the date of such election; providing, however, that Grantee, its successors and assigns, shall, within sixty (60) days after the date of approval by a majority of the voters at such election, file with the City Clerk an acceptance of the provisions of this Ordinance; and provided further that if such acceptance is not so filed within said period of sixty (60) days, all rights, privileges, and authority herein granted shall become null and void. Any franchise granted hereunder shall be nonexclusive. (Ord. 2924, §17)

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Sec. 16-113. Disclaimers.

Neither acceptance of, nor compliance with, the provisions of this Ordinance shall in any way impair or affect, or constitute or be construed as a relinquishment or waiver of any right, permission, or authority which Grantee, its successors or assigns, may have independently of this Ordinance. (Ord. 2924, §18)

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Sec. 16-114. Repeal by reference.

All ordinances and parts of ordinances in conflict with this Ordinance or with any of its provisions are, to the extent of such conflict, hereby repealed. (Ord. 2924, §19)

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Sec. 16-115. City permits required.

This Ordinance shall not relieve Grantee of the obligation to comply with any ordinance now existing in the City or enacted in the future requiring to obtain written permits or other approval from City prior to commencement of construction of facilities within the streets thereof. (Ord. 2924, §20)

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Sec. 16-116. PSC rules, regulations, and tariffs.

As a further part of the rights and privileges conferred by this Ordinance, Grantee shall provide gas service in accordance with the Rules and Regulations of the PSC and the Gas Tariff on file with the PSC as the same may be amended from time to time. (Ord. 2924, §21)

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Sec. 16-117. Sale of facilities to City.

Both parties agree to enter into good faith negotiations for the sale to City of all facilities constructed pursuant to the rights granted through Section 16-96 (Franchise Grant) above at the request of either party; 1) upon completion of the fifteenth (15th) year of this Franchise as measured from its effective date, or 2) upon revocation pursuant to this Ordinance. In the event the terms of such a sale are agreed upon between the parties, reasonable efforts will be made to coordinate the actual transfer; 1) at the expiration of this Franchise's twenty (20) year term with any required regulatory approvals, or 2) within a reasonable time following revocation and required regulatory approvals.

This Ordinance shall be in full force and effect from and after its final passage and approval.

PASSED BY THE CITY COUNCIL OF THE CITY OR ROLLA, MISSOURI, AND APPROVED BY THE MAYOR THIS 7TH DAY OF JUNE, 1993.

APPROVED:

___________________________

Mayor

ATTEST:

___________________________

City Clerk

APPROVED AS TO FORM:

___________________________

City Counselor

(Ord. 2924, §22)

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Secs. 16-118 to 16-122. Reserved.

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Article V - Fidelity Communications Franchise

Sec. 16-123. Granting a Franchise to Fidelity Communications Services I, In c.

In accordance with the terms of Section 25-42 of the Rolla Code, Fidelity Communications Services I, Inc., (hereinafter "FCSI"), a Missouri general business corporation which has been certificated by the Missouri Public Service Commission to provide basic local exchange telecommunications service in certain parts of the State of Missouri, and in particular in the exchange of Sprint Inc., (successor to United Telephone Company of Missouri) serving the City of Rolla, is hereby granted permission, in operating a telecommunications system within the City of Rolla, to construct and maintain all necessary poles, wires, cables, underground conduits, fixtures, telecommunications plant and apparatus of whatsoever nature for the purpose of conducting such business, to erect, operate and maintain the same along the streets, avenues, boulevards, alleys, public easements and other public places of said City of Rolla, under the terms and conditions set forth herein. (Ord. 3376, §1)

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Sec. 16-124. Term of license.

The initial term of this grant of permission shall be for two (2) years from the effective date of this ordinance. The grant shall be automatically renewed at the conclusion of the initial two (2) year period for an additional two (2) year renewal term unless either the City of Rolla or FCSI gives the other written notice of non-renewal at least sixty (60) days prior to the end of the initial period. After the initial term, this grant shall continue to be automatically renewed, subject to the same requirement of at least sixty (60) days prior written notice prior to the end of the two (2) year renewal period, until a total of ten (10) two (2) years periods have elapsed. The City of Rolla shall have the right during the initial of any renewal term, by ordinance applicable in a non-discriminatory manner to all similarly situated utilities, to impose additional conditions on this grant as a part of any restructuring of the City's ordinances concerning franchises for utilities in the City or the use of City right of way or both. (Ord. 3376, §1)

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Sec. 16-125. General terms and conditions.

Sections 25-24, 16-75, 16-76, 16-77, 16-78, 16-80, 16-81, 16-82, 16-83, 16-85, 16-86, 16-87, 16-88, 16-89, 16-105, 16-109, 16-111, 16-115 of the Rolla Code are hereby incorporated by reference as if fully set out herein and made applicable to FCSI. (Ord. 3376, §1)

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Sec. 16-126. License fee payments.

As part of the consideration for the rights and privileges conferred by this license, FCSI hereby agrees to and shall pay the City an amount equal to five (5%) percent of its local service revenues and all recurring and/or non-recurring charges designed to recover the cost of facilities which are physically located within the City of Rolla. Such payments shall be made quarterly for each year during which the license granted by this ordinance is in effect. FCSI shall calculate the amount of the fee monthly, and within sixty (60) days of the end of each calendar quarter file a statement with the City showing the basis of the calculation of the fee and submit the payment shown by the calculation. The fee payment shall be in addition to any other applicable taxes. Any payment not made on a timely basis shall be subject to a late payment fee at an interest charge, computed from such due date on such amount due, at the annual rate equal to 12% on any unpaid balance and a sum of money equal to expenses, costs, and attorney's fees, if any, incurred by the City by reason of delinquent payment. The late payment fee shall be in addition to any other remedies available to the City for FCSI's breach. The City shall have full audit rights for all fee statements. (Ord. 3376, §1)

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Sec. 16-127. Indemnity.

FCSI hereby agrees to indemnify and shall hold the City of Rolla and any and all of its employees, agents or contractors harmless from any and all liability imposed upon it or them or both on account of injury or damage to person or property or both caused by FCSI, its contractors, subcontractors, agents or employees in the course of or in connection with any construction, reconstruction, excavation, placement, maintenance, operation, or use of any of the facilities utilized or to be utilized in the course of FCSI's business in the City in the exercise of any of the rights and privileges conferred by this ordinance, whether or not the injury or damage involves any negligence, action or inaction on the part of the City or its employees, agents or contractors. (Ord. 3376, §1)

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Sec. 16-128. Service agreement to form an Educational and Governmental Cable Channel.

That the Mayor of the City of Rolla, Missouri, is authorized to enter into a Cable Service Agreement with the Rolla Public Schools (RPS) and Fidelity Cablevision, Inc. for the purpose of forming an Educational and Governmental Channel as outlined in Exhibit A. (Ord. 3857, §1)

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Secs. 16-129 to 16-132. Reserved.

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