HomeMy WebLinkAbout4154-02/19/1996 ORDINANCE NO. 4154
AN ORDINANCE AMENDING THE 1993 CODE OF
ORDINANCES OF THE CITY OF WATERLOO, IOWA, BY
REPEALING CHAPTER 91 , CABLE TV FRANCHISE
REGULATIONS, IN ITS ENTIRETY; AND ENACTING IN
LIEU THEREOF NEW CHAPTER 92 , CABLE TV
FRANCHISE REGULATIONS.
That Chapter 91 , Cable TV Franchise Regulations, of the 1993
Code of Ordinances of the City of Waterloo, Iowa, is hereby
repealed in its entirety; that new Chapter 91 , Cable TV Franchise
Regulations, of the 1993 Code of Ordinances of the City of
Waterloo, Iowa, is hereby enacted in lieu thereof as follows:
PREAMBLE
The City of Waterloo, Iowa, does ordain that it is in the public
interest to permit the use of public rights-of-way and easements
for the construction, maintenance, and operation of a Cable System
under the terms of this Franchise; said public purpose being
specifically the enhancement of communications within the City, the
expansion of communications opportunities outside the City, and the
provision of programming of a truly local interest.
SEC. 91-1 . STATEMENT OF INTENT AND PURPOSE.
1. 01 Statement of Intent and Purpose. The City intends , by
the adoption of this Ordinance, to bring about the development and
operation of a Cable System. This development can contribute
significantly to the communications needs and desires of many
individuals, associations, and institutions.
SEC. 92-2 . SHORT TITLE
This ordinance shall be known and cited as the " City of
Waterloo Cable Franchise Ordinance" . Within this document it shall
also be referred to as " this Franchise" or " the Franchise."
SEC. 92-3 . DEFINITIONS
For the purpose of this Ordinance, the following terms,
phrases, words, and their derivations shall have the meanings given
herein. When not inconsistent with the context, words used in the
present tense include the future tense, words in the plural number
include the singular number, and words in the singular number
include the plural number. All capitalized terms used in the
definition of any other term shall have their meaning as otherwise
defined in this Section 3 . The words " shall" and "will" are
mandatory and "may" is permissive. Words not defined shall be given
their common and ordinary meaning.
3 . 01 "Basic Service" means any Service tier which includes the
retransmission of local television broadcast Signals.
3 . 02 " Cable Act" means the Cable Communications Policy Act of
1984, Pub. L. No. 98-549, 98 Stat. 2779 ( 1984) (codified at 47
U.S.C. §§ 521-611 (1982 & Supp. V 1987) ) and any amendments
thereto.
3 . 03 " Cable System" means a facility, consisting of a set of
closed transmission paths and associated signal generation,
reception, and control equipment that is designed to provide Cable
Service which includes programming and which is provided to
multiple Subscribers within a community, but such term does not
include (A) a facility that serves only to retransmit the
television Signals of one or more television broadcast stations;
(B) a facility that serves only subscribers in one or more multiple
unit dwellings under common ownership, control, or management,
unless such facility or facilities uses any public right-of-way;
(C) a facility of common carrier which is subject, in whole or in
part, to the provisions of Title II of the Cable Act, except that
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such facility shall be considered a Cable System (other than for
purposes of Section 621 (c) of Title I of the Cable Act) to the
extent such facility is used in the transmission of video
programming directly to Subscribers; or (D) any facilities of any
electric utility used sole for operating its electric utility
system.
3 . 04 " Cable Service" means: (i ) the one-way transmission to
Subscribers of video programming or other programming Service; and
( ii) Subscriber interactive programming or other programming
Service, or any other lawful communications service.
3 . 05 " Channel" shall mean a portion of the electromagnetic
frequency spectrum which is used in a Cable System and which is
capable of delivering a television channel as defined by the FCC.
3 . 06 " City" means the City of Waterloo, Iowa, or, as
appropriate in the case of specific provisions of this Franchise,
any board, bureau, authority, agency, commission, department of, or
any other entity of or acting on behalf of, the City of Waterloo,
or any officer, official, employee, or any successor thereto.
3 . 07 " City Council" means the governing body of the City.
3 . 08 " Complaint" means any verbal or written inquiry,
allegation or assertion made by a Person which requires subsequent
corrective action to the Cable System or any portion thereof, or
raises an objection to the programming or business practices of
Grantee. The term " Complaint" does not include an inquiry which is
immediately answered by the Grantee.
3 .09 " Converter" means a device utilized by a Subscriber to
change the frequency of a Signal.
3. 10 " Drop" means the cable that connects the Subscriber
terminal at a point in the Subscriber' s home, designated by the
Subscriber, to the nearest feeder cable of the Cable System.
3 . 11 " FCC" means the Federal Communications Commission, its
designee, or any successor thereto.
3 . 12 " Grantee" means any person granted a franchise hereunder,
its agents, employees, and representatives, or the lawful
successor, transferee, or assignee thereof.
3 . 13 " Gross Revenues" means any and all revenues of any kind
or nature received directly or indirectly by the Grantee derived
from the operation or existence of the Cable System. Gross Revenues
shall not include revenues derived directly from national
advertising which may be carried on the Cable System. This sum
shall be the basis for computing the fee imposed pursuant to
Section 1. 01 hereof. This sum shall not include any taxes on
Services furnished by the Grantee which are imposed upon any
Subscriber or user by the state, county, City or other governmental
unit and collected by the Grantee on behalf of said governmental
unit, including the access support fee identified in Section 6. 07 .
There shall be no other deductions from this sum for uncollected
accounts or any other item unless specified herein or as specified
in federal law.
3 . 14 " Installation" means the act of connecting the Cable
System from the feeder cable to the Subscriber terminal so that
cable television Service may be received by the Subscriber.
3 . 15 " Institutional Network" means the cable or cables,
electronics and ancillary equipment provided pursuant to Section
6. 05 hereof.
3 . 16 "Local Office" means a location where the Grantee or its
agents are available to conduct business with subscribers during
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Normal Business Hours. Such business could include bill payments,
equipment returns, service complaints, new subscriptions, or
disconnections.
3. 17 "Normal Business Hours," as applied to the Grantee, shall
mean those hours during which similar businesses in the City are
open to serve customers. In all cases Normal Business Hours must
include some evening hours at least one night per week, and/or some
weekend hours.
3 .18 "Normal Operating Conditions" shall mean those service
conditions which are within the control of the Grantee. Those
conditions which are not within the control of the Grantee include,
but are not limited to, natural disasters, civil disturbances,
power outages, telephone network outages, and severe or unusual
weather conditions. Those conditions which are ordinarily within
the control of the Grantee include, but are not limited to, special
promotions, pay-per-view events, subscriber billing, regular peak
or seasonal demand periods, and maintenance or upgrade of the Cable
System.
3 . 19 " Person" means any natural Person or any association,
firm, partnership, joint venture, limited liability company,
corporation, or other legally recognized entity, whether for-profit
or not-for-profit.
3 . 20 " Public Property" means any real property, other than a
Street, owned by any governmental unit.
3. 21 " Service Interruption" shall mean the loss of picture or
sound on one or more cable channels.
3. 22 " Signal" means any transmission or reception of radio
frequency energy or of optical information.
3 . 23 " Street" means the surface of and the space above and
below any public Street, public road, public highway, public
freeway, public lane, public path, public way, public alley, public
court, public sidewalk, public boulevard, public parkway, public
drive or any public easement or right-of-way now or hereafter held
by the City which shall, within its proper use and meaning in the
sole opinion of the City, entitle Grantee to the use thereof for
the purpose of installing or transmitting over poles, wires,
cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, attachments and other property as may be ordinarily
necessary and pertinent to a Cable System.
3 . 24 " Subscriber" means any Person or entity who lawfully
subscribes to a Cable Service provided by Grantee by means of or in
connection with the Cable System whether or not a fee is paid for
such Service.
3. 25 " Cable System Upgrade" means the process by which the
System shall be upgraded pursuant to Section 5. 01 herein.
3 . 26 "Two-Way Cable System" , pursuant to Section 5. 02, means
that the headend, trunk cables, distribution plant, amplifiers, and
other technical components of the Cable System have the requisite
equipment to potentially provide video, audio, voice, and/or data
Signals in both directions simultaneously.
SEC. 92-4. GRANT OF AUTHORITY AND GENERAL PROVISIONS.
4. 01 Authority for Use of Streets.
A. For the purpose of constructing, operating, and
maintaining a Cable System in the City, Grantee may erect, install,
construct, repair, replace, relocate, reconstruct and retain in,
on, over, under, upon, across and along the Streets within the City
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such lines, 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 System, provided that all applicable permits are applied
for and granted, all fees paid and all other lawful City codes and
ordinances are otherwise complied with.
B. Prior to any construction, reconstruction, or rebuild of
the Cable System, Grantee shall, in each case, file plans with the
City. This requirement shall be in addition to Grantee' s
obligations specified in Section 5 . O1B.
C. Grantee shall construct and maintain the Cable System so
as not to interfere with other uses of Streets. Grantee shall make
use of existing poles available to Grantee, unless Grantee chooses
to install underground. Grantee shall widely publicize proposed
construction work prior to commencement of that work. Such
publicity shall include, but not be limited to, 1) publication in
local newspapers identifying all affected areas, dates of such work
and Grantee' s telephone number; 2 ) a character generated notice on
the public access channel, which both parties recognize may be
preempted by the City, which shall appear on the Cable System a
reasonable number of times during prime time viewing hours to place
subscribers on notice. Except in case of emergency beyond Grantee' s
reasonable control, Grantee shall individually notify verbally or
in writing all residents affected by proposed underground work,
when such work shall affect thirty percent ( 30%) or more of
existing Subscribers, not less than forty-eight ( 48 ) hours prior to
commencement of that work. Such notice shall include the Grantee' s
telephone number.
D. Notwithstanding the above grant to use the Streets,
Grantee may only use such streets for normal Cable System
operations and may not substantially deviate from the intended use
of such Streets. The City may determine whether Grantee' s use is
materially inconsistent or a substantial deviation from the terms,
conditions, or provisions by which such Street was created or
dedicated, or presently used. The City may not unreasonably
withhold access to said streets.
4 . 02 Nature of Franchise. Upon acceptance, the Grantee' s
nonexclusive Franchise for the occupation and use of the Streets
within the City for the construction, operation, maintenance,
upgrade, repair, and removal of the Cable System in accordance with
the provisions of this Ordinance shall be deemed to be valid.
4. 03 Franchise Term. A Franchise shall commence upon
acceptance by Grantee and compliance with all applicable provisions
of Iowa law as defined herein.
4 . 04 Area Covered. This Ordinance is applicable for the City
limits of Waterloo. In the event of annexation by the City, any new
territory shall become part of the area covered.
4. 05 Use of Grantee Facilities. The City shall have the right
to install and maintain at a charge consistent with Grantee' s
incurred costs from the City, or telephone company, including other
applicable utility rental charges, upon the poles and within the
underground pipes and conduits of Grantee, any wires and fixtures
desired by the City to the extent that such Installation and
maintenance does not interfere with existing and future operations
of Grantee and provided that City holds Grantee harmless against
and from all claims, demands, costs, or liabilities of every kind
and nature whatsoever arising out of such use of poles or conduits,
including, but not limited to, reasonable attorneys' fees and
costs.
4. 06 Written Notice. All reasonable notices, reports or
demands required to be given in writing under this Ordinance shall
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Ordinance No. 4154
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be deemed to be given when delivered Personally to the Person
designated below, or when five ( 5) days have elapsed after it is
deposited in the United States mail in a sealed envelope, with
registered or certified mail postage prepaid thereon, or on the
next addressed business day if sent by express mail or overnight
air courier addressed to the party to which notice is being given,
as follows:
City Attorney' s Office
City of Waterloo, Iowa
715 Mulberry Street
Waterloo, IA 50703
Attn: Cable Commission
4. 07 Franchise Non-Exclusive. Any Franchise granted herein
is nonexclusive. The City specifically reserves the right to grant,
at any time, additional Franchises for a Cable System in accordance
with state and federal law. Subject to the Cable Act, in the event
that the City enters into a Cable Franchise with any other person
or entity other than Grantee, to enter into the City' s Streets and
public ways for the purpose of constructing or operating a Cable
System, the material provisions thereof shall not be more favorable
or less burdensome than those contained herein, considering all the
circumstances.
4. 8 Compliance with Laws.
A. Subject to applicable local, state and federal law,
Grantee' s rights are subject to the lawful police powers of the
City to adopt and enforce ordinances necessary to the health,
safety and welfare of the public.
B. This Ordinance is subject to all applicable federal laws
and regulations and shall be construed and enforced in accordance
with the laws of the State of Iowa.
C. This Ordinance is adopted as an exercise of the
City' s governmental powers, pursuant to the specific authority
conferred upon it by Iowa law.
SEC. 9 -5. DESIGN PROVISIONS.
5. 01 Cable System Design.
A. Grantee shall immediately undertake all necessary steps
to rebuild and/or substantially upgrade and, thereafter, operate
and maintain over the term of any Franchise, the Cable System
utilizing fiber optic technology or other substantially similar and
equally effective technology to significantly improve signal
quality and reliableness on the Cable System and greatly reduce the
number of amplifiers in line between the headend and/or node and
the extremity points of the Cable System. Upon completion of said
rebuild and/or substantial upgrade, the Cable System shall have the
capability of delivering at least seventy-seven (77 ) television
Channels. Construction shall be completed on or before December 31,
1999, and shall be fully operational within thirty ( 30) days
following completion of construction. Grantee recognizes that
completion of construction on or before December 31, 1999, shall be
considered a material term of this franchise the violation of which
shall be grounds for revocation pursuant to Section 10 . 10.
B. Grantee shall make available to the City for inspection
at Grantee' s Waterloo office, a full description of the Cable
System proposed for construction, including " as-built" maps for the
entire Cable System, as rebuilt or substantially upgraded, to the
extent such maps have not been previously provided to the City.
5.02 Interconnection.
A. The Cable System shall be designed to be interconnected
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Ordinance No. 4154
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with other Cable Systems operated by Grantee.
B. The City may request Grantee to negotiate interconnecting
the Institutional Network or Cable System or both with other
adjacent systems in the general area. Grantee shall use its best
efforts to negotiate such interconnection and shall keep the City
informed of the progress of any negotiations.
5. 03 Provision of Service.
A. After service has been established by activating trunk
and distribution cable for any area, subject to minimum density
requirements set forth in Section 9. 05, Grantee shall provide
service to any requesting Subscriber within that area seven (7)
days from the date the Subscriber' s request is received by
Grantee' s customer service representative.
B. Grantee shall install and provide its most complete Cable
Service which shall, at a minimum, include basic service and
expanded service (excluding, but not necessarily limited to
premium, pay per view and DMX-digital radio service-services) to
all public buildings designated by the City at no charge for the
initial Installation nor for monthly service provided at each
location. Each of these Installations shall include a Signal Drop,
one outlet, and one Converter (or such other terminal equipment as
may be necessary to provide an electronic interface with a
television receiver) . The public buildings to be provided this
service, subject to the terms and conditions of this Franchise,
shall include, but not be limited to, the following:
1. Each City public school building;
2. Each City fire station; •
3 . Two ( 2) locations in the City hall complex, to be
designated by the Cable Commission;
4. All public library locations within the City limits;
5. The City police department;
6. AEA 7;
7. All existing parochial schools; and
8 . Any additional or relocated public agency, so long as
such buildings are within 600 feet from the existing Cable System
and Grantee receives advanced written notice at the same time as
other utilities to enable Grantee to minimize costs associated with
such installation. If a public agency fails to provide Grantee
notice substantially the same as that provided by other utilities,
service will be provided at Grantee' s cost for time and materials
only.
9. Hawkeye Community College.
5. 04 Technical Standards. The Cable System shall be designed,
constructed and operated so as to meet those technical standards
promulgated by the Federal Communications Commission relating to
Cable Systems contained in part 76 of the Federal Communications
Commission' s rules and regulations relating to Cable Systems and
found in Code of Federal Regulations, Title 47, Sections 76 . 601 to
76. 617, as amended, or as may, from time to time, be amended.
Grantee shall, provide the City with a list of the tests required
by the Federal Communications Commission. The City may reasonably
request in writing copies of any test results and/or other reports
submitted by Grantee to the FCC. Grantee shall provide a copy of
such test results when requested in writing by the City within
fourteen ( 14) days of receipt of such written request. Grantee
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Ordinance No. 4154
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shall provide the above-referenced list within sixty ( 60) days of
adoption of this Franchise and shall update, the list as necessary
throughout the term of the Franchise.
5. 05 Special Testing.
A. At any time after commencement of service to Subscribers,
the City may require or may retain an independent engineer to
perform additional tests, full or partial repeat tests, different
test procedures, or tests involving a specific Subscriber' s Drop.
Grantee shall have reasonable notice of any such tests and shall
have an opportunity to have a designated employee present. Such
additional tests will be made on the basis of Complaints received
or other evidence indicating an unresolved controversy or
significant noncompliance, and such tests will be limited to the
particular matter in controversy.
B. The City shall endeavor to so arrange its requests for
such special tests so as to minimize hardship or inconvenience to
Grantee or to the Subscriber.
C. If such special testing establishes that the Cable System
substantially meets all required technical standards, the City
shall bear the expense for such special testing.
D. If such special testing establishes that the Cable System
does not substantially meet all required technical standards,
Grantee shall bear the expense for such special testing and shall
immediately undertake all necessary steps to correct the problem.
5. 06 Signal Quality. The Cable System shall distribute a
video signal on all activated Channels, in a Subscriber' s home, in
black and white or color, depending upon whether color is being
cablecast, that is reasonably undistorted and free from internally
generated ghost images, graininess or snow, vertical, horizontal or
diagonal interference lines, and without degradation of color
fidelity. The Cable System shall distribute audio that is
reasonably undistorted from its reception quality and of consistent
loudness level on a television receiver of average quality.
5 . 07 Monthly Testing. Grantee shall conduct monthly technical
performance tests as required by the FCC and shall provide to the
City copies of the tests results within fourteen ( 14) days of a
written request from the City.
5. 08 Monthly Operational Status Reports. Upon request,
Grantee shall provide monthly reports to the City of the following
statistical information: 1) number of repair service requests; 2 )
breakdown by type of Complaints received; 3 ) breakdown by cause of
problems experienced on the Cable System; 4) breakdown by type of
response or resolution of Complaints received or problems
experienced with the Cable System. Notwithstanding anything to the
contrary set forth herein, Grantee may reasonably designate
information released to the City as proprietary or confidential in
nature. To the extent legally permissible, the City agrees to treat
any information disclosed by Grantee to it as confidential and only
to disclose it to employees, representatives, and agents thereof
that have a need to know, or in order to enforce the provisions
hereof.
SEC. 92-6. SERVICE PROVISIONS.
6. 01 Programming.
Grantee shall, at a minimum, provide these categories of
programming:
A. Children' s and educational
B. Religious
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C. Sports
D. News
E. Weather
6 . 02 Audio Service. Grantee shall offer an audio service as
an optional service on the Cable System.
6. 03 Programming Decisions. All programming decisions shall
be at Grantee' s discretion subject to applicable provisions of
local, state, and federal law. Programming should reflect the
diversity of interests and backgrounds present in the City,
including, but not limited to race, color, gender, age, reliuion,
civil status, political conviction, language, disability status,
ethnic or national origin, ancestry, education, social or economic
status.
6. 04 Emergency Alert Cable System. To the extent not directly
prohibited by local, state, and federal laws and regulations,
Grantee shall install and thereafter maintain an Emergency Alert
Cable System (EAS) . This Cable System shall be remotely activated
by telephone and shall allow a Black Hawk County Emergency
Management representative to override the audio on all Channels of
the Cable System in the event of a civil emergency or for
reasonable tests.
6. 05 Institutional Network.
A. Grantee shall construct, activate, and thereafter
maintain an Institutional Network.
B. The Institutional Network shall be designed and
constructed so as to pass the locations served as of January 1,
1993 .
C. Grantee shall provide one ( 1) free Drop and one ( 1 )
interior outlet from the Institutional Network to each institution
at a location selected by that institution. The Institutional
Network shall be extended to pass other institutions not listed in
Section 6.05B above at the expense ( for materials and labor only)
of the requesting party.
D. The Institutional Network shall be fully activated for
two-way transmission throughout its entirety, permitting carriage
of the equivalent of at least thirty-six ( 36) standard six ( 6 ) MHz
Channels downstream, and six (6) standard six ( 6) MHz Channels
upstream.
E. Grantee shall be under no obligation to purchase any
additional headend equipment other than that which is in existence
on July 1, 1993 and which is specified in the preceding paragraph
and in paragraph I ; provided, however, nothing contained herein
shall prevent or restrict 1) Grantee from providing equipment to
various users; or 2) a user from purchasing, after consultation
with Grantee, additional headend equipment. Grantee shall
thereafter maintain any equipment so purchased by a user and
Grantee may charge the user for Grantee' s actual cost of
maintenance.
F. Unless otherwise provided by Grantee, the user of any
Channel( s) on the Institutional Network shall be responsible for
purchasing and maintaining any additional equipment necessary at
the user' s site. Grantee shall consult and cooperate with the user
in order that compatible equipment will be purchased.
G. The City and Grantee shall develop jointly a policy
regarding the allocation of Channels on the Institutional Network
including the terms and conditions for the use of any Channels.
H. There shall be no Channel time use charges, maintenance
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charges, repair service charges, AC power charges, or other such
ongoing charges levied by Grantee for any public service use of the
Institutional Network.
I. Notwithstanding anything to the contrary contained within
this Franchise, Grantee shall continue to provide, maintain,
repair, and/or replace all existing signal processors to the
headend of the Institutional Network serving the City' s schools to
facilitate various educational projects.
6. 06 Access Channels.
A. Grantee shall supply to the City, without charge, a
minimum of one ( 1) activated Channel on the Cable System as a
governmental Channel and shall supply, without charge, a minimum of
one ( 1) activated Channel on the Cable System as a public Channel,
and shall supply, without charge, a minimum of one ( 1) activated
Channel on the Cable System as an educational Channel for the
City' s public schools, the University of Northern Iowa, and the
Area Education Agency. Upon completion of the System Upgrade and in
addition to the above-referenced requirements, Grantee shall
supply, without charge, an additional two ( 2) activated channels on
the Cable System as educational channels for the City' s schools,
Hawkeye Community College the Area Education Agency and other
appropriate educational institutions. The access Channels shall not
be placed on any cable Channel that may experience direct pickup
interference from over-the-air broadcast stations.
B. Grantee shall have the right to utilize the two ( 2 )
additional educational access channels referenced above until such
time as the City indicates a need for such additional channel
capacity. The City shall provide Grantee 90 days advanced written
notice that an additional educational access channel shall be
required for use by the City.
C. The Grantee may also use the specially designed Channels ,
referenced in paragraph A of this section, during those hours when
the Channels are not in use by the general public, local
educational authorities or local government. Preference regarding
use of the specially-designated channels, referenced in paragraph
A of this section, shall always be given to public, educational,
and governmental users.
D. No charges may be made for Channel time or playback of
pre-recorded programming on the specially designated Channels
referenced in paragraph A of this section.
E. Whenever the specially designated access Channels
required in this Section 6. 06 above are in use an average of eight
( 8) hours per day, seven (7 ) days per week, for eight ( 8) weeks
running with programming which is produced in the State of Iowa,
and there is demand for use of additional Channels for the same
purpose, Grantee shall have three ( 3 ) months in which to provide a
new specially designated access Channel for the same purpose,
provided, however, that the Cable System has been upgraded to a
capacity of 77 channels and that said access channel does not
interfere with existing use of the channel capacity on the Cable
System. In no event shall Grantee be required to provide more than
six ( 6) access channels.
F. Grantee may establish rules pertaining to the
administration of the specially designated access Channels required
in this section which shall be reviewed and approved by the City.
6. 07 Access Equipment and Facilities.
A. After (a) the approval of the Franchising Authority to
the inclusion of the Capital Contribution on subscriber' s bills,
including any required approval pursuant to 47 C.F.R. §76. 933 ; (b)
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notice to Grantee' s Subscribers of the inclusion; and (c) the
commencement of collection of the Capital Contribution by Grantee
from its Subscribers, Grantee shall provide ongoing capital support
for public, educational, and governmental access equipment and
facilities in the amount of thirty-five cents ( $ . 35) per Subscriber
per month for the entire term of this Franchise payable in the same
manner as franchise fee payments pursuant to Section 10 . 01 hereof.
Payments of this ongoing capital support shall not be deemed to be
" franchise fees" within the meaning of Section 622 of the Cable Act
( 47 U.S. C. § 542) , and such payment shall not be deemed to be ( i)
"payments-in-kind" or any involuntary payments chargeable against
the compensation to be paid to the City by Grantee pursuant to
Section 10. 01 hereof, or (ii) part of the compensation to be paid
to the City by Grantee pursuant to Section 10. 01 hereof.
SEC. 91-7. CONSTRUCTION PROVISIONS.
7 . 01 Construction Timetable.
A. Grantee shall give notice to the City sixty ( 60) days
prior to the anticipated completion date of any Cable System
Upgrade and again at such time as Grantee has, in fact, completed
all construction.
B. Upon receipt of notice that all construction has been
completed, the City shall have sixty ( 60 ) days to obtain a written
report from an independent engineer paid by the City confirming the
completion of construction; provided, however, that if the City
fails to obtain such a written report within said sixty ( 60) days,
the construction shall be deemed completed, unless the failure to
obtain such a report is due to unforeseen events, acts of God, or
events beyond the reasonable control of the City.
C. Notwithstanding anything contained herein to the
contrary, the City may condition completion of construction upon
receipt of a written report from an independent engineer, which
report confirms the following:
1. That all construction has been completed or otherwise
satisfactorily resolved;
2. Satisfactory test results using the technical standards
set forth in Section 5. 05 at up to ten ( 10) widely separated
Subscriber Drops selected by the independent engineer and using the
following tests:
a. Signal level
b. Hum
c. Bandpass response of Cable System
d. Carrier to noise
3 . Compliance with all applicable codes and standards.
4. Installation and the proper working of the Emergency
Alert Cable System required at Section 6. 04 hereof.
7. 02 Construction Delay. Grantee shall notify the City of any
delay in the construction. The City shall excuse only upon
occurrence of unforeseen events beyond Grantee' s reasonable control
or acts of God.
7 .03 Construction Standards.
A. All construction practices shall be in accordance with
all applicable sections of the Occupational Safety and Health Act
of 1970, as amended, as well as all state and local codes where
applicable.
B. All Installation of electronic equipment shall be of a
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permanent nature, durable and installed in accordance with the
provisions of the National Electrical and Safety Code and National
Electrical Code as amended.
C. Antennas and their supporting structures ( tower) shall be
painted, lighted, erected and maintained in accordance with all
applicable rules and regulations of the Federal Aviation
Administration and all other applicable state or local laws, codes
and regulations.
D. All of Grantee' s plant and equipment, including, but not
limited to, the antenna site, headend and distribution Cable
System, towers, house connections, structures, poles, wire, 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 co as not to endanger or interfere with improvements the
City may deem appropriate 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.
E. Grantee shall at all times employ ordinary care and shall
install and maintain in use commonly accepted methods and devices
preventing failures and accidents which are likely to cause damage,
injury or nuisance to the public.
7.04 Construction Codes and Permits.
A. Grantee shall obtain all required permits from the City
before commencing any work requiring a permit, including the
opening or disturbance of any Street, or Public Property or public
easement within the City, such permits not to be unreasonably
withheld. Grantee shall strictly adhere to all building and zoning
codes currently or hereafter applicable to construction, operation
or maintenance of the Cable System in the City.
B. The City shall have the right, at its cost, to inspect
all construction or Installation work performed pursuant to the
provisions of this Franchise and to make such tests as it shall
find necessary to ensure compliance with the terms of the Franchise
and applicable provisions of local, state and federal law. Such
inspections shall not interfere with said construction on
installation work.
C. Nothing contained in this Franchise shall be construed to
give Grantee the authority to enter upon or work on private
property in areas not encumbered with public easements without the
permission of the property owner.
7 . 05 Repair of Streets and Property. Any and all Streets or
Public Property or private property, which are disturbed or damaged
during the construction, repair, replacement, relocation,
operation, maintenance or reconstruction of the Cable System shall
be promptly repaired by Grantee, at its expense, to a condition
substantially the same as that prevailing prior to Grantee' s
construction.
7 . 06 Use of Existing Poles. Grantee shall not erect, for any
reason, any pole on or along any Street in an existing aerial
utility Cable System without the advance written approval of the
City, such approval not to be unreasonably withheld. Grantee shall
exercise its best efforts to negotiate the lease of pole space and
facilities from the existing pole owners for all aerial
construction.
7. 07 Undergrounding of Cable.
A. Cable shall be installed underground at Grantee' s expense
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Page 12
where both the existing telephone and electrical utilities are
already underground unless pole lines exist, are not scheduled to
be removed and such pole lines are being utilized. Grantee shall
endeavor to place cable underground in newly platted areas in
concert with both the telephone and electrical utilities.
B. In the event that telephone or electric utilities are
reimbursed by the City or any agency thereof for the placement of
cable underground or the movement of cable, Grantee shall be
reimbursed upon the same terms and conditions as the telephone or
electric utilities.
C. In the event an underground installation is required and
the ground is frozen, saturated, or otherwise unable to immediately
facilitate underground installation, such installation shall be
performed on a temporary basis in compliance with all state and
federal rules, regulations, codes, or other generally applicable
standards. As soon as conditions change to permit proper
underground installation of cable, Grantee shall immediately
undertake all necessary steps to install the cable underground
pursuant to the terms and conditions of this Franchise and in no
event shall completion of all undergrounding of cable occur later
than August 1st. Grantee shall be excused upon occurrences of
unforeseen events beyond Grantee' s reasonable control or for acts
of God.
7. 08 Reservation of Street Rights.
A. Nothing in this Franchise shall be construed to prevent
the City from constructing, maintaining, repairing or relocating
sewers; grading, paving, maintaining, repairing, relocating and/or
altering any Street; constructing, laying down, repairing,
maintaining or relocating any water mains; or constructing,
maintaining, relocating, or repairing any sidewalk or other public
work.
B. All such work shall be done, insofar as practicable in
such a manner as not to obstruct, injure or prevent the free use
and operation of the poles, wires, conduits, conductors, pipes or
appurtenances of Grantee.
C. If any such property of Grantee shall interfere with the
construction or relocation, maintenance or repair of any Street or
public improvement, whether it be construction, repair,
maintenance, removal or relocation of a sewer, public sidewalk, or
water main, Street or any other public improvement, thirty ( 30 )
days notice shall be given to Grantee by the City and all such
poles, wires, conduits or other appliances and facilities shall be
removed or replaced by Grantee in such manner so that the same
shall not interfere with the said public work of the City and such
removal or replacement shall be at the expense of Grantee.
D. Nothing contained in this Franchise shall relieve any
Person from liability arising out of the failure to exercise
reasonable care to avoid injuring Grantee' s facilities while
performing any work connected with grading, regrading, or changing
the line of any Street or public place or with the construction or
reconstruction of any sewer or water Cable System.
7. 09 Trimming of Trees. Grantee shall, subject to applicable
local laws and regulations, have the authority to trim trees upon
and hanging over Streets, alleys, sidewalks, and public places of
the City so as to prevent the branches of such trees from coming in
contact with the wires and cables of Grantee; provided, however,
all trimming shall be done under the supervision of the City, if
requested by the City.
7. 10 Street Vacation or Abandonment. In the event any Street
or portion thereof used by Grantee shall be vacated by the City or
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Ordinance No. 4154
Page 13
the use thereof discontinued by Grantee, during the term of this
Franchise, Grantee shall, at Grantee' s expense, subject to
applicable laws, forthwith remove its facilities therefrom unless
specifically permitted by the City to continue the same, and on the
removal thereof restore, repair or reconstruct the Street area
where such removal has occurred, and place the Street area where
such removal has occurred to a condition similar to that existing
before such removal took place, but the Grantee shall in all cases
have the right of abandonment of its property. In the event of
failure, neglect or refusal of Grantee, after thirty ( 30) days
notice by the City to remove the facilities or to repair, restore,
reconstruct, improve or maintain such Street portion, the City may
do such work or cause it to be done, and the reasonable cost
thereof shall be paid by Grantee as directed by the City and
collection may be made by any available lawful remedy. Should the
City sell property to a third party, third party shall be
responsible for reimbursement of costs to relocate.
7. 11 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 this Franchise, in
order to lawfully move a large object, vehicle, building or other
structure over the Streets of the City, upon two ( 2) weeks notice
by the City to Grantee, Grantee shall move at the expense of the
Person requesting the temporary removal, such payment to be made in
advance, any of Grantee' s facilities as may be required to
facilitate such movements. Any service disruption provisions of
this Franchise shall not apply in the event that the removal of
Grantee' s wires, cables, poles or other facilities results in
temporary service disruptions.
SEC. 91-8 . OPERATION AND REPORTING PROVISIONS.
8 . 01 Open Books and Records. The City shall have the right to
inspect, upon twenty-four ( 24) hours written notice, at any time
during Normal Business Hours at the Cable System office all books,
records, maps, plans, revenue statements, service Complaint logs,
performance test results, record of requests for service and other
like materials of Grantee which are reasonably necessary to monitor
compliance with the terms of this Franchise. Notwithstanding
anything to the contrary set forth herein, Grantee may reasonably
designate information provided to the City as proprietary or
confidential in nature. The City agrees to treat any information
disclosed by the Grantee to it as confidential and only to disclose
it to employees, representatives, and agents thereof having need to
know, or in order to enforce the provisions hereof.
8. 02 Communications with Regulatory Agencies. Copies of all
petitions, applications, communications and reports submitted by
Grantee or on behalf of or relating to Grantee to the FCC,
Securities and Exchange Commission or any other federal or state
regulatory commission or agency having jurisdiction in respect to
any matters affecting the Cable System authorized pursuant to this
Franchise shall be made available to the City upon request. Grantee
shall provide City with a list of all such above-referenced
communications within sixty ( 60) days of the date of adoption of
this Franchise to be updated, as necessary throughout the term of
this Franchise. The City shall have the right to request copies of
any and all communications referenced above, as well as copies of
responses from such regulatory agencies. Grantee shall take all
reasonable steps to provide such copies within fourteen ( 14) days
from the date of request.
8. 03 Annual Report. On or before April 1 of each year during
the term of this Franchise, including the year in which the
Franchise becomes effective, Grantee shall file with the City a
statement for the immediately preceding fiscal year of Gross
Revenues certified by an officer of Grantee who is also a certified
public accountant.
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Ordinance No. 4154
Page 14
8 . 04 Additional Reports. Grantee shall prepare and furnish,
upon request, to the City, at the times and in the form prescribed,
such additional reports with respect to its operation, affairs,
transactions or property, which are reasonably necessary for the
administration and enforcement of this Franchise. Notwithstanding
anything to the contrary set forth herein, Grantee may reasonably
designate information provided to the City as proprietary or
confidential in nature. The City agrees to treat any information
disclosed by the Grantee to it as confidential and only to disclose
it to employees, representatives, and agents thereof that have a
need to know, or in order to enforce the provisions hereof.
8. 05 Maps. Grantee shall provide the City with a current
strand map or set of maps drawn to scale showing the Cable System
in place in Streets and other public places. The maps shall be
updated on a yearly basis on April 1st, if changes have been made.
8. 06 Audit. The City and its agents and representatives shall
have the authority, during normal business hours, to arrange for
and conduct an inspection of the books and records of Grantee
solely for the purpose of enforcing the terms and provisions of
this Franchise. Grantee shall first be given ten ( 10) days written
notice of the inspection request, the description of and purpose
for the inspection and description, to the best of the City' s
ability, of the books, records, and documents it wants to inspect.
Nothing in this Section 8. 06 shall, in any way, alter or affect the
ability of the City to inspect, upon twenty-four ( 24) hours written
notice, the books and records of Grantee pursuant to Section 8.01
of this Franchise.
8. 07 Periodic Inspection. The City may and Grantee shall, at
the request of the City, undertake an inspection of the Cable
System to ascertain the Cable System performance at pre-selected
addresses based on complaints received indicating an unresolved
controversy or problem. Grantee shall have fifteen ( 15) days to
inspect and report to the City of any findings concerning an
unresolved controversy or problem before initiating an inspection
of the Cable System.
8 . 08 Periodic Evaluation Sessions. The field of cable
communications is a relatively new and rapidly changing one which
may see many regulatory, technical, financial, marketing and legal
changes during the term of this Franchise. Therefore, in order to
provide for a maximum degree of flexibility in this Franchise, and
to help achieve a continued advanced and modern Cable System, the
following evaluation provisions will apply:
A. The City may require, at its sole discretion, evaluation
sessions at any time during the term of this Franchise; provided,
however, there shall not be more than one evaluation session during
any two ( 2) year period.
B. Topics which may be discussed at any evaluation and
session include, but are not limited to rates, Channel capacity,
the Cable System performance, programming, access, municipal uses
of cable, Subscriber Complaints, judicial rulings, FCC rulings and
any other topics the City or Grantee deem relevant.
C. During an evaluation session, Grantee shall fully
cooperate with the City and shall provide without cost such
reasonable information and pertinent documents as the City may
request to perform the evaluation.
D. If at any time during its evaluation, the City determines
that reasonable evidence exists of inadequate Cable System
performance, the City may require Grantee to perform tests and
analysis directed toward such suspected inadequacies under any
applicable terms and conditions of this Franchise which may
include, but not be limited to, Section 5.06. Notwithstanding any
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Ordinance No. 4154
Page 15
other provisions of this Franchise, the expense for such tests or
analysis shall be the Grantee' s if system performance is not
substantially in compliance, and the City' s if system performance
is in substantial compliance.
E. Grantee shall submit to City a written report regarding
any findings of the above-referenced tests and/or analysis
regarding any inadequate Cable System performance, pursuant to the
applicable terms and conditions of this Franchise, which may
include, but not be limited to, Section 5. 06 . The City may enlist
an independent engineer to verify testing results. The costs and
expenses of such independent engineer shall be at Grantee' s expense
if the Cable System performance is not substantially in compliance,
and at the City' s expense if the Cable System performance is in
substantial compliance.
F. As a result of an Evaluation Session, the City or Grantee
may determine that a change in the terms of the Franchise may be
required, that the Cable System or Franchise requirements should be
updated, changed, revised, or that additional services should be
provided. If the change is consistent with the terms of this
Franchise or is due to regulatory, technical, financial, marketing,
inflation or legal requirements and implementation of a change
would not unreasonably add to the cost of providing cable
television services, Grantee and the City will, in good faith,
negotiate the terms of the change and any required amendment to
this Franchise.
SEC. 92-9 . CONSUMER PROTECTION PROVISIONS.
9. 01 Approval of Changes.
A. The City reserves the right to regulate rates for Basic
Service and any other services offered over the Cable System, to
the extent permitted by federal or state law. Grantee shall
maintain on file with the City at all times a current schedule of
all rates and charges. To the extent applicable and required, the
City shall comply with the rules relating to cable rate regulation
promulgated by the FCC at 47 C.F.R. , Part 76. 900, Subpart N, or
such other applicable laws, rules, or regulations with respect to
the regulation of the rates charged by Grantee.
B. Not less than thirty ( 30) days prior to the effective
date of any change within Grantee control in any fee, charge,
deposit, term or condition (or such shorter period as may, upon a
showing of good cause, be approved by the City) , the Grantee shall
(i) submit a revised Products and Services Price List to the City,
and ( ii) provide written notice of the proposed change to each
affected Subscriber. The Grantee shall not make any change in any
rate within Grantee's control unless it has provided the notice
required in Section 9. 02 of this Franchise.
9.02 Charges for Disconnection or Downgrading of Service.
A. Grantee may impose a charge reasonably related to the
cost incurred for a downgrade of service, except that no such
charge may be imposed when:
1. A Subscriber requests total disconnection from the Cable
System; or
2. A Subscriber requests the downgrade within a thirty ( 30)
day period following any rate increase relative to the service in
question.
B. If a Subscriber requests disconnection from service prior
to the effective date of an increase in rates, the Subscriber shall
not be charged the increased rate if Grantee fails to disconnect
service prior to the effective date. Any Subscriber who has paid in
EGiK 320PAGE 44f
Ordinance No. 4154
Page 16
advance for the next billing period and who requests disconnection
from service shall receive a prorated refund of any amounts paid in
advance.
9. 03 Subscriber Complaint Practices.
A. Grantee shall maintain a Local Office within the City
limits of Waterloo which shall be open during " normal business
hours" at least eight ( 8) hours per weekday and four ( 4) hours on
either a weekday evening or on Saturdays. Grantee shall have a
publicly-listed toll-free telephone number and be so operated as to
receive Subscriber Complaints and requests on a twenty-four ( 24)
hour-a-day, seven (7) days-a-week basis. At least ninety percent
( 90%) of the time, Grantee shall connect a telephone caller to a
live service representative staff member within thirty ( 30)
seconds, seven (7) days per week, at least during the hours of 8: 30
a.m. to 6: 00 p.m. If the call needs to be transferred, transfer
time shall not exceed thirty ( 30) seconds. Under " normal operating
conditions" , as that term may be defined by the FCC, customers will
receive a busy signal less than three percent ( 3%) of the time.
Grantee shall maintain, on a quarterly basis, written or
computer-generated records, which may include statistics for both
Waterloo and Cedar Falls, demonstrating, to the satisfaction of the
City, its ability to meet the standards in this Section. A written
log shall be maintained listing all Complaints and their
dispositions. A copy of the written log shall be provided, upon
request, for the Cable Commission' s review at said Commission' s
monthly meetings.
B. Within Grantee' s Local Office, cable programming
available on the local Cable System shall be displayed, allowing
subscribers to view a properly received cable picture.
C. 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 notice and shall occur during periods of
minimum use of the Cable System. A written log shall, upon written
request, be made available to the City for inspection regarding all
service interruptions subject to Section 632 of the Cable Act.
D. Grantee shall maintain adequate telephone lines and
Personnel to respond in a timely manner to schedule service calls
and answer Subscriber Complaints or inquiries as required by this
Section 9 . 04.
E. Under " normal operating conditions," as that term may be
defined by the FCC, each of the following five ( 5) standards will
be met no less than ninety-five percent ( 95%) of the time measured
on a quarterly basis:
1. Standard installations will be performed within seven (7)
business days after an order has been placed.
2 . Excluding conditions beyond the control of Grantee,
Grantee will begin working on " service interruptions" promptly and,
in no event, later than twenty-four ( 24) hours after the
interruption becomes known ( i.e. is reported to Grantee' s customer
service representative or other appropriate representative of
Grantee) . Grantee must begin actions to correct other service
problems the next business day after notification of the service
problem.
3 . The " appointment window" alternatives for installations,
service calls, and other installation activities will be either a
specific time or, at maximum, a four ( 4) hour time block during
" normal business hours" as this term is defined in Section 9 . 04A.
Grantee may schedule service calls and other installation
activities outside of normal business hours for the express
COCK 320 PAGE 44 I
Ordinance No. 4154
Page 17
convenience of the customer.
4. Grantee may not cancel an appointment with a customer
after the close of business on the day prior to the scheduled
appointment.
5. If Grantee' s representative is running late for an
appointment with a customer and will not be able to keep the
appointment as scheduled, the customer will be contacted. The
appointment will be rescheduled, as necessary, at a time which is
convenient for the customer.
F. Grantee shall respond within two ( 2) hours to all
outage reports affecting at least one ( 1) Channel for five percent
( 5%) or more of the Cable System' s Subscribers.
G. Service calls for maintenance or repair shall be
performed at no charge; provided, however, if such maintenance or
repair is required as a result of damage caused by a Subscriber
then Grantee may charge according to its actual cost for time and
material.
H. If Grantee fails to correct a service problem within
twenty-four (24) hours after a subscriber contacts Grantee
regarding notification of a service problem, Grantee shall, upon
request, credit one thirtieth (1/30) of the monthly charge to the
Subscriber for each twenty-four ( 24) hours or fraction thereof
after the first twenty-four ( 24) hours from the time Grantee
receives notice of a Subscriber is with reduced service. Grantee
shall, upon request, inform the Commission regarding the
disposition of credits provided by Grantee to subscribers pursuant
to this Section.
9. 04 Installation.
A. Grantee shall at all times comply with any applicable FCC
regulations regarding Installation. At a minimum, however,
Subscribers who will request Installation, maintenance or repairs
shall be given the schedule option of a four-hour block of time in
the morning, afternoon, or on Saturday appointments. Persons
requesting Installation of cable service shall be afforded a right
of rescission between the time cable service is requested and the
time service is actually installed. Pursuant to applicable FCC
regulations, all new Installations, reconnects, service upgrades or
downgrades shall be performed within seven (7) business days of the
date the subscriber requests an installation, reconnection, service
upgrade or downgrade.
B. Grantee shall extend service to those areas not included
in the initial service area when the density of homes meets or
exceeds ten ( 10) homes within 1,320 cable-bearing strand feet (1/4
cable mile) .
C. Only those homes which require drops in excess of 150
feet shall be required to pay for Grantee' s materials and time. All
other installations will be Billed at a hourly service charge
pursuant to FCC rate regulations.
D. Areas below the density of ten ( 10) homes within 1 , 320
cable-bearing strand feet ( 1/4 cable mile) shall have service
available on a cost-sharing basis. The following procedures will
apply:
1. Upon request for service, Grantee will construct the
needed line extension in accordance with the above criteria.
2 . Construction will be accomplished in a timely manner
subsequent to such a request. Construction completion will be
subject to such factors as type of construction (aerial or
underground) , seasonal conditions, and make-ready factors.
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Ordinance No. 4154
Page 18
3 . The cost of the line extension will be prorated based on
the number of Subscribers served by the extension. Grantee will
absorb the first One Hundred Dollars ( $100) per Subscriber of the
prorated cost. Subscribers on a line extension costing less than
One Hundred Dollars ($100) per serviced Subscriber would not be
subject to the cost sharing obligation.
4. Once the line extension is built on the above basis, the
standard installation and monthly rates will apply.
5. Provision of service through a line extension shall be
accomplished no later than six ( 6) months from the date of request.
6 . Grantee reserves the right to require payment in advance
for the Subscriber' s portion of any line extension cost.
7. Nothing in this Section 9. 05 shall prohibit the City, the
Grantee, or real estate developers from entering into an agreement
whereby entire new housing developments in the City shall be
pre-wired for efficient future expansion of cable television
service.
9. 05 Subscriber Information. To the extent required by
federal law, Grantee shall provide: 1) upon request to the City, 2)
to all new Subscribers, 3) annually to existing Subscribers, and 4)
at any time upon request; written Subscriber service information
which shall include, at a minimum, the following:
1. A/B switch notice (to the extent required by state and
federal law) ;
2 . Privacy notice (to the extent required by state and
federal law) ;
3 . Products and services offered;
4. Prices and options for programming and conditions of
subscription to programming and other services;
5 . Installation and service maintenance policies;
6. Instructions on how to use the cable service;
7. Channel positions of programming carried on the System;
8 . Billing and complaint procedures, including the address
and telephone number of the local franchise authority' s cable
office.
9. Assistance procedures (applicable only for new
subscribers) ; and
10. Channel line-up card.
9. 06 Subscriber Billing Practices.
A. Grantee shall notify new Subscribers, of its billing
practices. The service information shall describe Grantee' s billing
practices including, but not limited to, the following: frequency
of billing, time periods upon which billing is based, advance
billing practices, security deposit requirements, charges for late
payments or returned checks, payments required necessary to avoid
account delinquency, availability of credits for service outages,
procedures to be followed to request service deletions including
the notice period a Subscriber must give to avoid liability for
such services and procedures to be followed in the event of a
billing dispute.
B. Grantee shall notify all affected Subscribers not less
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Ordinance No. 4154
Page 19
than thirty ( 30) days prior to any change in the billing practices
and such notice shall include a description of the changed
practice.
C. The Subscriber bill shall contain the following
information presented in plain language and format•
1 . Name and address of Grantee;
2. The period of time over which each chargeable service is
billed including prorated Periods as a result of the establishment
and termination of service;
3. Each reasonably distinct rate or charge levied;
4. The amount of the bill for the current billing period,
separate from any balance;
5. Grantee' s telephone number and a statement that the
Subscriber may call this number with any questions or Complaints
about the bill; and
6. The date on which payment is due from the Subscriber.
D. The account of a Subscriber shall be considered
delinquent ten (10) days following the due date printed on
Subscriber' s bill. Grantee may, at its discretion, modify or change
billing practices based on the reasonable needs of the Grantee.
1. Grantee may impose an administrative fee when a
Subscriber' s account is delinquent.
2. Grantee may charge a reasonable administrative fee for
late payment.
E. Refund checks will be issued promptly, but no later than
either (i ) the Subscriber' s next billing cycle following resolution
of the request or thirty ( 30) days, whichever is earlier, or ( ii)
the return of the equipment supplied by Grantee if service is
terminated.
F. Credits for service will be issued no later than the
Subscriber' s next billing cycle following the determination that a
credit is warranted.
9.07 Parental Control Option. Grantee shall provide parental
control devices to all Subscribers who wish to be able to delete
any objectionable programming from the cable service entering the
Subscriber' s home. Grantee shall comply with all applicable state
and federal laws and regulations regarding parental control devices
and/or blocking devices, particularly with respect to any fees or
charges which may be assessed by Grantee with respect to such
devices.
SEC. 92-10. GENERAL FINANCIAL AND INSURANCE PROVISIONS.
10. 01 Payment to City.
A. Grantee shall pay to the City an annual amount equal to
five percent ( 5%) of Grantee' s Gross Revenues.
B. Payments due the City under this provision shall be
computed at the end of each quarter year. Payments shall be due and
payable for each quarter or a portion of a quarter year forty-five
(45) days from the end of the previous quarter. Each payment shall
be accompanied by a brief report showing the basis for the
computation and such other relevant facts as may be reasonably
required by the City.
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Ordinance No. 4154
Page 20
C. Subject to applicable local, state and federal law, no
acceptance of any payment shall be construed as an accord that the
amount paid is in fact the correct amount, nor shall such
acceptance of payment be construed as a release of any claim the
City may have for further or additional sums payable under the
provisions of this Franchise. All amounts paid shall be subject to
audit and recomputation by the City. Notwithstanding the above, the
period of limitation for recovery of any franchise fee payable
hereunder shall be the applicable statute of limitations under Iowa
state law.
D. With each Annual Report required pursuant to Section
8. 03 , Grantee shall provide the City with a certification of the
Gross Revenues for the prior calendar year prepared by an officer
of Grantee who is also a certified public accountant. This
certification shall be used to determine the exact amount of
payments due the City and to correct any overpayments or
underpayments by Grantee.
E. In the event any payment is not made on the due date,
upon written notice from City, Grantee shall have fifteen ( 15) days
to cure said missing payment, or interest on the amount due shall
accrue from such date at the annual rate of the prime rate plus one
and one-half percentage points at such prime rate as advertised by
the Homeland Bank or other similarly situated financial institution
should Homeland Bank no longer be in existence.
10. 02 Not Franchise Fees.
A. Grantee expressly acknowledges and agrees that except for
the payments expressly required by Section 10. 01 hereof, none of
the payments or contributions made by, or the Services, equipment,
facilities, support, resources, or other activities to be provided
or performed by Grantee at the direction of the City or otherwise
pursuant to this Franchise, or otherwise in connection with the
construction, operation, maintenance, or upgrade of the Cable
System ( including specifically, but not by way of limitation, such
payments, contributions, Services, equipment, facilities, support,
resources, or other activities as described in or provided for in
this Franchise and the exhibits hereto) are Franchise fees
chargeable against the compensation payments to be paid to the City
by Grantee pursuant to Section 10. 01 hereof.
B. Grantee expressly acknowledges and agrees that, as
applicable, except for the compensation payments expressly required
by Section 10. 01 hereof, each of the payments or contributions made
by, or the Services, equipment, facilities, support, resources, or
other activities to be provided by the Grantee, are within the
exclusions from the term "Franchise fee" set forth in Section
622(g) ( 2) of the Cable Act ( 47 U.S.C. § 542(g) ( 2) ) .
C. Grantee expressly acknowledges and agrees that the
compensation payments due from the Grantee to the City pursuant to
Section 10.01 hereof, shall take precedence over all other
payments, contributions, Services, equipment, facilities, support,
resources, or other activities to be paid or supplied by the
Grantee pursuant to this Franchise and the compensation and other
payments to be made pursuant to this Section 10. 01 of this
Franchise shall not be deemed to be in the nature of a tax, and
shall be in addition to any and all taxes of general applicability
or other fees or charges which the Grantee shall be required to pay
to the City or to any state or federal agency or authority, all of
which shall be separate and distinct obligations of the Grantee.
D. Grantee expressly acknowledges and agrees that the only
credits or deductions from franchise fees will be made pursuant to
the exclusions set forth in Section 622(g) ( 2) of the Cable Act ( 47
U.S.C. Section 542(g) ( 2) .
C��� 3 O PAGE 45i
Ordinance No. 4154
Page 21
10. 03 Performance Bond.
A. Within 30 days of the effective date of the franchise,
Grantee shall furnish the City with a performance bond in the
amount of ten thousand dollars ( $10,000) . The City expressly
agrees to accept a Guarantee In Lieu Of a Bond in a form reasonably
acceptable by the City Attorney. The Guarantee in Lieu of Bond is
conditioned upon the faithful performance of Grantee of all terms
and conditions of this Franchise. The rights reserved to the City
with respect to the Guarantee or other security are in addition to
all other rights the City may have under the Franchise or any other
law.
B. The rights reserved by the City with respect to the
Guarantee are in addition to all other rights the City may have
under the Franchise or any other law.
10. 04 Security Fund.
A. If this Franchise is ever sold or transferred pursuant to
Section 12.02, the transferee shall provide and maintain through
the remaining term of this Franchise, a security fund in the sum of
Twenty-five Thousand and 00/100 Dollars ( $25,000. 00) as common
security for the faithful performance by it of all the provisions
of this Franchise and compliance with all orders, permits and
directions of the City and the payment by Grantee (transferee) of
any claim, liens and taxes due the City which arise by reason of
the construction, operation or maintenance of the Cable System.
B. Provision shall be made to permit the City to draw from
the security fund. Grantee (transferee) shall not use the security
fund for other purposes and shall not assign, pledge or otherwise
use this security fund as security for any purpose. The City
reserves the right, in its sole discretion, to reduce the required
amount of the security fund.
C. Within ten ( 10) days after notice to it that any amount
has been withdrawn by the City from the security fund pursuant to
(A) of this section, Grantee (transferee) shall take all necessary
steps sufficient to restore such security fund to the required
amount.
D. If Grantee (transferee) fails to pay to the City any
taxes due and unpaid; or fails to repay to the City, any damages,
costs or expenses which the City shall be compelled to pay by
reason of any act or default of the Grantee (transferee) in
connection with this Franchise; or fails, after ten ( 10) days
notice of such failure by the City to comply with any provision of
the Franchise which the City reasonably determines can be remedied
by an expenditure of the security, the City may then withdraw such
funds from the security fund.
E. The written instrument evidencing the security fund shall
be subject to the approval of the City and shall contain the
following endorsement: It is hereby understood and agreed that
this security fund may not be canceled by the issuer, nor may the
intention not to renew be stated by the issuer, until thirty ( 30)
days after receipt by the City of a written notice stating such
intention to cancel or not to renew.
10. 05 Penalties from Security Fund. This Section 10. 05 shall
be applicable only if the security fund identified in Section 10. 04
is triggered by a sale or transfer. In addition to any other
remedies provided herein, civil penalties for violations of this
Franchise are set forth below. As a result of any acts or omissions
by Grantee (transferee) pursuant to the Franchise, the City may
charge to and collect from the security fund the following
penalties:
£, 320 PAGE 452
Ordinance No. 4154
Page 22
A. For failure to complete the construction in accordance
with the Franchise unless the City approves the delay, the penalty
shall be One Hundred Dollars ( $100.00) per day for each day, or
part thereof, such failure occurs or continues.
B. For repeated and willful failure to provide data,
documents, reports or information or to cooperate or participate
with the City during a renewal process or the Cable System review,
the penalty shall be One Hundred Dollars ($100. 00) per day.
C. For substantial failure to comply with any material
provision of this Franchise, for which a penalty is not otherwise
specifically provided, the penalty shall be One Hundred Dollars
($100. 00) per day.
D. For failure to test, analyze and report on the
performance of the Cable System following a request by the City,
the penalty shall be One Hundred Dollars ( $100.00) per day.
E. For failure of Grantee ( transferee) to comply with
operation or maintenance standards, the penalty shall be One
Hundred Dollars ( $100. 00) per day.
F. For failure to provide the services Grantee (transferee)
proposed, the penalty shall be One Hundred Dollars ( $100. 00) per
day.
G. For failure to comply with all conditions of the City
permits to disturb Streets, fix Streets, or other terms or
conditions of the City, the penalty shall be One Hundred Dollars
($100 . 00) per day.
10. 06 Procedure for Imposition of Penalties.
A. This Section 10. 06 shall be applicable only if the
security fund identified in Section 10. 04 is triggered by a sale or
transfer. Whenever the City finds that Grantee (transferee) has
allegedly violated one (1) or more terms, conditions or provisions
of this Franchise, a written notice (in a form similar to Exhibit
C) shall be given to Grantee (transferee) . The written notice shall
describe in reasonable detail the alleged violation so as to afford
Grantee ( transferee) an opportunity to remedy the violation.
Grantee ( transferee) shall have ten ( 10) days subsequent to receipt
of the notice in which to correct the violation before the City may
resort to the security fund. Grantee (transferee) may, within five
( 5) days of receipt of notice, notify the City that there is a
dispute as to whether a violation or failure has, in fact,
occurred. Such notice by Grantee (transferee) to the City shall
specify with particularity the matters disputed by Grant^e
(transferee) and shall stay the running of the above-described
time.
1 . The City shall hear Grantee' s (transferee) dispute at a
regularly or specially scheduled meeting. Grantee (transfere;: ;
shall have the right to subpoena and cross-examine witnesses. The
City shall determine if Grantee ( transferee) has committed ct
violation and shall make written findings of fact relative to its
determination. If a violation is found, Grantee (transferee) may
petition for reconsideration.
2. Ii after hearing the dispute the claim is upheld by the
City, Grantee (transferee) shall have ten ( 10) days from such a
determination to remedy the violation or failure. At any time after
that ten (I0) day period, the City may draw against the security
fund all penalties due it.
B. The time for Grantee (transferee) to correct any alleged
violation may be extended by the City if the necessary action to
correct the alleged violation is of such a nature or character to
EOoK 320 PAGE 45J
Ordinance No. 4154
Page 23
require more than ten ( 10) days within which to perform provided
Grantee (transferee) commences the corrective action within the ten
( 10) day period and thereafter uses reasonable diligence, as
determined by the City, to correct the violation.
C. The security fund deposited pursuant to this Section
shall become the property of the City in the event that the
Franchise is canceled by reason of the default of Grantee
(transferee) or revoked for cause. Grantee (transferee) , however,
shall be entitled to the return of such security fund, or portion
thereof, as remains on deposit at the expiration of the term of the
Franchise.
D. The rights reserved to the City with respect to the
security fund are in addition to all other rights of the City
whether reserved by this Franchise or authorized by law, and no
action, proceeding or exercise of a right with respect to such
security fund shall affect any other right the City may have.
E. The City shall stay or waive the imposition of any
penalties set forth above upon a finding that any failure or delay
is a result of an act of God or due to circumstances beyond the
reasonable control of Grantee (transferee) .
10. 07 Damages and Defense.
A. Grantee agrees to indemnify, save and hold harmless, and
defend the City, its officers, boards, and employees, from and
against all claims, demands, costs, or liabilities of every kind
and nature whatsoever arising out of the construction, maintenance,
and operation of Grantee' s Cable System, including, but not limited
to, any liability for damages and for any liability or claims
resulting from property damage, bodily injury ( including accidental
death) , copyright infringement, defamation, antitrust, errors and
omission, theft, fire, and all other damages which arise out of
Grantee' s construction, operation, or maintenance of the Cable
System, including, but not limited to, reasonable attorneys' fees
and costs. Such indemnification shall extend during the entire term
of the Franchise. This indemnification shall exclude any damages or
causes of action arising out of the City' s unlawful, negligent, or
ultra vires acts.
B. In order for the City to assert its rights to be
indemnified, defended, or held harmless, the City must;
1. Promptly notify Grantee of any claim or legal proceeding
which gives rise to such right;
2. Afford Grantee the opportunity to participate in and
fully control any compromise, settlement or other resolution or
disposition of such claim or proceeding; and
3 . Fully cooperate with the reasonable requests of Grantee,
at Grantee' s expense, in its participation in, and control,
compromise, settlement or resolution or other disposition of such
claim or proceeding subject to paragraph ( 2) above.
C. In the event the City, in its sole discretion, determines
that its interests cannot be represented in good faith by Grantee,
the City may, at its own cost, defend itself with regard to all
damages and penalties mentioned in paragraph A above.
10. 08 Liability Insurance.
A. Grantee shall maintain, throughout the term of the
Franchise, comprehensive general liability insurance, naming the
City as an additional insured in the minimum amounts of:
1. One Million Dollars ( $1,000,000. 00) for bodily injury or
E•EK 320 PAGE 454
Ordinance No. 4154
Page 24
death to any one ( 1) Person;
2 . Two Million Dollars ( $2,000, 000. 00) for bodily injury or
death resulting from any one accident;
3 . Two Million Dollars ( $2, 000,000.00) for all other types
of liability.
B. Within thirty ( 30) days of acceptance, Grantee shall
furnish to the City a certificate evidencing that a satisfactory
insurance policy has been obtained. Said certificate shall
demonstrate that the insurance provider holds a rating by Best of
at least "A-" . Said certificate shall also require that the City be
notified thirty ( 30) days prior to any expiration or cancellation.
C. All insurance policies maintained pursuant to this
Section 10. 08 may not be canceled by the surety, nor may the
intention not to renew be stated by the surety until thirty ( 30 )
days after receipt by the City, of a written notice of such
intention to cancel or not to renew.
In addition, it shall be the obligation of the Grantee
promptly to notify the City of any pending or threatened litigation
that would be likely to affect its insurance coverage.
10. 09 City' s Right to Revoke. In addition to all other
rights which the City has pursuant to law or equity, the City
reserves the right to revoke, terminate or cancel this Franchise,
and all rights and privileges pertaining thereto pursuant to
Section 10.10, in the event that:
A. Grantee substantially violates any material provision of
this Franchise; or
B. Grantee attempts to evade any of the provisions of the
Franchise and refuses to cure it; or
C. Grantee practices any fraud or deceit upon the City or
Subscriber; or
D. Grantee becomes insolvent, unable or unwilling to pay its
debts, or is adjudged as bankrupt; or
E. Grantee materially misrepresents a material fact in the
application for or negotiation of, or renegotiation of, or renewal
of, the Franchise.
10. 10 Revocation Procedures. In the event that the City
determines that Grantee has substantially violated any material
provision of the Franchise, or any applicable federal, state or
local law regarding the operation of the Cable System, the City may
make a written demand on Grantee, stating the exact nature of the
alleged violation, requiring that Grantee remedy such violation and
that continued violation may be cause for revocation. If the
violation, breach, failure, refusal, or neglect is not remedied to
the satisfaction of the City within thirty ( 30) days following such
demand, the City shall determine whether or not such violation,
breach, failure, refusal or neglect by Grantee is due to acts of
God or other causes which result from circumstances beyond
Grantee' s control.
A. A public hearing shall be held and Grantee shall be
provided with an opportunity to be heard upon fourteen ( 14) days
written notice to Grantee of the time and the place of the hearing.
The causes for pending revocation and the reasons alleged to
constitute such cause shall be recited in the notice. Said notice
shall affirmatively recite the causes that need to be shown by the
City to support a revocation.
EOCK 32O PAGE 45
Ordinance No. 4154
Page 25
B. If notice is given and, at Grantee' s option, after a full
public proceeding is held, the City determines there is a
violation, breach, failure, refusal or neglect by Grantee, the City
shall direct Grantee to correct or remedy the same within such
reasonable additional time, in such manner and upon such reasonable
terms and conditions as City may direct.
C. If after a public hearing it is determined that Grantee' s
performance of any of the terms, conditions, obligations, or
requirements of Franchise was prevented or impaired due to any
cause beyond its reasonable control or not reasonably foreseeable,
such inability to perform shall be deemed to be excused and no
penalties or sanctions shall be imposed as a result thereof,
provided Grantee has notified City in writing within thirty ( 30)
days of its discovery of the occurrence of such an event. Such
causes beyond Grantee' s reasonable control or not reasonably
foreseeable shall include, but shall not be limited to, acts of
God, civil emergencies and labor strikes.
D. If, after notice is given and, at Grantee' s option, a
full public proceeding is held, the City determines there was a
substantial violation, breach, failure, refusal or neglect, then
the City may declare, by resolution, the Franchise revoked and
canceled and of no further force and effect unless there is
compliance within such period as City may fix, such period not to
be less than thirty ( 30) days, provided no opportunity for
compliance need be granted for fraud, misrepresentation, or
violation of privacy rights.
E. The issue of revocation shall automatically be placed
upon the City Council agenda at the expiration of the time set by
it for compliance. The City then may terminate Franchise forthwith
upon finding that Grantee has failed to achieve compliance or may
further extend the period, in its discretion.
F. If the City, after notice is given and, at Grantee' s
option, a full public proceeding is held and appeal is exhausted,
declares the Franchise breached, the parties may pursue their
remedies pursuant to Franchise or any other remedy, legal or
equitable. Any decision by the City shall be subject to a de novo
review by a court of competent jurisdiction.
10. 11 Enforcement of Franchise Provisions. In addition to
any other remedies provided herein, the City may require Grantee to
appear before the City, or any designated entity, to address any
alleged violations of the terms and provisions of this Franchise.
The City shall provide Grantee fourteen ( 14) days advanced written
notice of such a meeting, which notice shall include a detailed
description of any alleged violation. Grantee shall be prepared to
explain the circumstances regarding such alleged violation,
including any actions taken by Grantee to cure such alleged
violations or other relevant facts. If the City is dissatisfied
with the responses received by Grantee, it may exercise any other
rights available to it under the terms and provisions of this
Franchise or applicable local, state, and federal law.
SEC. 92-11. FORECLOSURE, RECEIVERSHIP AND ABANDONMENT.
11. 01 Foreclosure. Upon the foreclosure or other judicial
sale of the Cable System, Grantee shall notify the City of such
fact and such notification shall be treated as a notification that
a change in control of Grantee has taken place, and the provisions
of this Franchise governing the consent to transfer or change in
ownership shall apply without regard to how such transfer or change
in ownership occurred.
11. 02 Receivership. The City shall have the right to cancel
this Franchise subject to any applicable provisions of state law,
including the Bankruptcy Act, one hundred and twenty ( 120) days
�u"�K 32O N E 4.56
Ordinance No. 4154
Page 26
after the appointment of a receiver or trustee to take over and
conduct the business of Grantee, whether in 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 and twenty ( 120) days, or
unless:
A. Within one hundred and twenty ( 120) days after his
election or appointment, such receiver or trustee shall have fully
complied with all the provisions of this Franchise and remedied all
defaults thereunder; and,
B. Such receiver or trustee, within said one hundred and
twenty ( 120) days, shall have executed an agreement, duly approved
by the Court having jurisdiction in the premises, whereby such
receiver or trustee assumes and agrees to be bound by each and
every provision of this Franchise.
11. 03 Abandonment. Grantee may not abandon any aerial
portion of the Cable System thereof without having first given
three ( 3) months written notice to the City. Grantee may not
abandon any aerial portion of the Cable System without compensating
the City for damages, if any, resulting from the abandonment.
SEC. 9z-12. REMOVAL, TRANSFER AND PURCHASE.
12. 01 Removal After Revocation or Expiration.
A. Subject to applicable federal, state and local law, at
the expiration of the term for which the Franchise is granted, and
any removal thereof or upon its lawful revocation, as provided for,
the City shall have the right to require Grantee to remove, at
Grantee' s expense, but in all cases Grantee shall have the right to
abandon underground cable, all or any portion of the Cable System
from all Streets and Public Property within the City. In so
removing the Cable System, Grantee shall refill and compact at its
own expense, any excavation that shall be made and shall leave all
Streets, Public Property and private property in as good a
condition as that prevailing prior to Grantee' s removal of the
Cable System, and without affecting, altering or disturbing in any
way electric, telephone or utility, cables wires or attachments.
The City, or its delegation, shall have the right to inspect and
approve the condition of such Streets and Public Property after
removal. The security fund (if applicable) , insurance, indemnity
and penalty provision of the Franchise shall remain in full force
and effect during the entire term of removal.
B. Subject to applicable local, state, and federal law, if,
in the sole discretion of the City, Grantee has failed to commence
removal of the Cable System, or such part thereof as was designated
within thirty ( 30) days after written notice of the City' s demand
for removal is given, or if Grantee has failed to complete such
removal within one ( 1) year after written notice of the City' s
demand for removal is given, the City shall have the right to
exercise one of the following options:
1. Declare all right, title and interest to the Cable System
to be in the City or its delegator with all rights of ownership
including, but not limited to, the right to operate the Cable
System or transfer the Cable System to another for operation by it;
or
2. Declare the Cable System abandoned and cause the Cable
System, or such part thereof as the City shall designate, to be
removed at no cost to the City. The cost of said removal shall be
recoverable from the security fund, indemnity and penalty section
provided for in the Franchise, or from Grantee directly.
EON 3,?OPA�E45
Ordinance No. 4154
Page 27
12. 02 Sale or Transfer of Franchise.
A. This Franchise shall not be sold, assigned, or
transferred, either in whole or in part, or leased or sublet in any
manner, nor shall title thereto, either legal or equitable, or any
right, interest, or property therein, pass to or vest in any Person
except an entity controlling, controlled by, or under common
control with Grantee without full compliance with the procedures
set forth in this Section 12. 02 and applicable provisions of the
Cable Communications Policy Act of 1984 , as amended.
B. The provisions of this Section shall apply to the sale or
transfer of all or a majority of Grantee' s assets, merger,
consolidation, or sale or transfer of stock in Grantee so as to
create a new controlling interest. The term " controlling interest" ,
as used herein, is not limited to majority stock ownership but
includes actual working control in whatever manner exercised.
1. The parties to the sale or transfer shall make a written
request to the City for its approval of a sale or transfer. The
written request shall contain all information required by the City
or by applicable state and federal laws and regulations. Upon
receipt of a written request, the City shall make a determination
pursuant to Section 12. 03 of this Franchise as to the exercise of
its first right of refusal to purchase the System.
2. The City shall reply in writing within thirty ( 30) days
of the request and shall indicate approval of the request or its
determination that a public hearing is necessary to analyze the
legal, technical, and financial ability of the proposed transferee
and whether a potential adverse effect may result on Grantee' s
Subscribers.
3. The City shall issue a decision in writing either
approving or denying the sale or transfer request within 120 days
following receipt of the written request from the parties to the
sale or transfer, which written request shall contain all necessary
information on which the City shall base its determination.
C. In reviewing a request for sale or transfer pursuant to
paragraph A. above, the City may inquire into the legal, technical,
and financial qualifications of the perspective controlling party,
and Grantee shall assist the City in so inquiring. The City may
condition said transfer upon such terms and conditions as it deems
reasonably appropriate; provided, however, the City shall not
unreasonably withhold its approval. In no event shall a transfer or
assignment of ownership or control of the Franchise be approved
without the perspective controlling party becoming a signatory to
this Franchise.
D. Notwithstanding anything to the contrary contained in
this Section 12. 02, no such consent shall be required for a
transfer in trust, by mortgage, or by hypothecation, or by
assignment of any rights, title, or interest of Grantee in the
Franchise or Cable System, in order to secure indebtedness.
12. 03 Purchase By City Upon Expiration or Revocation.
A. Subject to applicable local, state, and federal law, at
the expiration of this Franchise, the City may purchase the Cable
System pursuant to Section 627 of the Cable Act ( 47 U.S.C. 541) .
B. Upon the revocation of this Franchise, the City may, in
lawful manner and upon the payment of an equitable price, lawfully
purchase the Cable System.
MK 320 PACE 458
Ordinance No. 4154
Page 28
SEC. 92-13 . RIGHTS OF INDIVIDUALS PROTECTED.
13 . 01 Discriminatory Practices Prohibited. Grantee shall not
deny service, deny access, or otherwise discriminate against
Subscribers, programmers or general citizens on the basis of race,
color, religion, national origin, gender, sexual orientation, or
age. Grantee shall comply at all times with all other applicable
federal, state and City laws, relating to non-discrimination.
13. 02 Subscriber Privacy. Grantee shall, at all times,
comply with all applicable local, state, and federal Subscriber
Privacy provisions, including, but not limited to, Section 631 of
the Cable Act ( 47 U.S.C. 551) .
SEC. 91-14. MISCELLANEOUS PROVISIONS.
14. 01 Franchise Renewal. This Franchise may be renewed in
accordance with applicable state and federal law.
14. 02 Work Performed by Others.
A. The provisions of this Franchise shall remain the
responsibility of Grantee, and Grantee shall be responsible for and
hold the City harmless for any claims or liability arising out of
work performed by Persons authorized by Grantee.
B. All applicable provisions of this Franchise shall apply
to any subcontractor or authorized persons performing any work or
services pursuant to the provisions of this Franchise.
14. 03 Compliance with Federal, State and Local Laws.
A. If any federal or state law or regulation requires or
permits Grantee to perform any service or act or shall prohibit
Grantee from performing any service or act which may be in conflict
with the terms of this Franchise, then as soon as possible
following knowledge thereof, Grantee shall notify the City of the
point of conflict believed to exist between such law or regulation.
B. If any term, condition or provision of this Franchise or
the application thereof to any Person or circumstance shall, to any
extent, be held to be invalid or unenforceable, the remainder
hereof and the application of such term, condition or provision to
Persons or circumstances other than those as to whom it shall be
held invalid or unenforceable shall not be affected thereby,
and this Franchise and all the terms, provisions and conditions
hereof shall, in all other respects, continue to be effective and
to be complied with. In the event that such law, rule or regulation
is subsequently repealed, rescinded, amended or otherwise changed
so that the provision which had been held invalid or modified is no
longer in conflict with the law, rules and regulations then in
effect, said provision shall thereupon return to full force and
effect and shall thereafter be binding on Grantee and the City.
C. Notwithstanding anything to the contrary, in the event
that any court, agency, commission, legislative body or other
authority of competent jurisdiction (i) declares Sections 6 . 06,
6. 07 or 10.01 invalid, in whole or in part, or ( ii) requires
Grantee either to (a) perform any act which is inconsistent with
any of the said Sections or (b) cease performing any act required
by said Sections, Grantee shall promptly notify the City. Such
notice shall state whether Grantee intends to exercise its rights
pursuant to such declaration or requirement.
14. 04 Nonenforcement by City. Subject to applicable federal,
state and local laws, Grantee shall not be relieved of its
obligation to comply with any of the provisions of this Franchise
by reason of any failure of the City or to enforce prompt
compliance.
L:12K 329 wr.4 5e9
Ordinance No. 4154
Page 29
14 . 05 Administration of Franchise.
A. Subject to applicable local, state and federal law, the
City shall have continuing regulatory jurisdiction and supervision
over the Cable System and the Grantee' s operation under the
Franchise. The City may issue such reasonable rules and regulations
concerning the construction, operation and maintenance of the Cable
System as are consistent with the provisions of the Franchise.
B. Grantee shall construct, operate and maintain the Cable
System subject to the City council who has jurisdiction in such
matters and in strict compliance with all laws, ordinances,
departmental rules and regulations affecting the Cable System and
not inconsistent with the provisions of this Franchise.
C. The Cable System and all parts thereof shall be subject
to the right of periodic inspection by the City provided that such
inspection shall not interfere with the operation of the Cable
System and such inspections take place during normal business hours
upon reasonable notice to Grantee.
14.06 Miscellaneous Violations.
A. Subject to applicable federal, state and local law, from
and after the acceptance of the Franchise, it shall be unlawful for
any Person to establish, operate or to carry on the business of
distributing to any Persons in the City any television Signals or
radio Signals by means of a Cable System using public right of ways
unless a Franchise therefor has first been obtained pursuant to the.
provisions of an ordinance, and unless such Franchise is in full
force and effect.
B. Subject to applicable federal, state and local law, from
and after the acceptance of the Franchise, it shall be unlawful for
any Person to construct, install or maintain within any Street in
the City, or within any other Public Property of the City, or
within any privately owned area within the City which has not yet
become a public Street but is designated or delineated as a
proposed public Street on any tentative subdivision map approved by
the City, or the City' s official map or the City' s major
thoroughfare plan, any equipment or facilities for distributing any
television Signals or radio Signals through a Cable System, unless
a Franchise authorizing such use of such Street or property or
areas has first been obtained.
14. 07 Emergency Use. In the case of any emergency or.
disaster, Grantee shall, upon request of the City, make available
its Cable System and related facilities to the City for emergency
use during the emergency or disaster period. The City shall hold
Grantee, its agents, employees, officers, and assignees hereunder,
harmless from any claims arising out of the emergency use of its
facilities by the City, including, but not limited to reasonable
attorneys' fees and costs.
14. 08 Captions. The paragraph captions and headings in this
Franchise are for convenience and reference purposes only and shall
not affect in any way the meaning of interpretation of this
Franchise.
14. 09 Calculation of Time. Where the performance or doing
of any act, duty, matter, payment or thing is required hereunder
and the period of time or duration for the performance or during
thereof is prescribed and fixed herein, the time shall be computed
so as to exclude the first and include the last day of the
prescribed or fixed period or duration of time. When the last day
of the period falls on Saturday, Sunday or a legal holiday, that
day shall be omitted from the computation.
EyjK 320 PAGE 460
Ordinance No. 4154
Page 30
SEC. 92-15. EFFECTIVE DATE; PUBLICATION AND TIME OF ACCEPTANCE.
15. 01 Publication; Effective Date. This Ordinance shall be
signed by the Mayor or acting Mayor and attested by the City Clerk.
The Ordinance shall be published in accordance with the
requirements of City and state law and shall take effect at that
time.
15. 02 Time of Acceptance; Incorporation of Proposal;
Exhibits.
A. Grantee shall have sixty ( 60) days from the date of
adoption of a Franchise to accept a Franchise. Such acceptance by
Grantee shall be deemed the grant of a Franchise for all purposes.
In the event acceptance does not take place within sixty ( 60) days
or such other time as the City might allow, a Franchise shall be
null and void.
B. Upon acceptance of a Franchise, Grantee shall be bound by
all the terms and conditions contained therein. Grantee shall
provide all services and offerings specifically set forth therein
to provide cable television services within the City.
C. With its acceptance, Grantee shall also deliver to the
City documentation evidencing its power and authority to accept the
Franchise. Such documents shall also describe the officers
authorized to accept on behalf of Grantee.
D. With its acceptance, Grantee shall also deliver any and
all required certificates, resolutions, and other documentation
required by this Ordinance.
INTRODUCED: February 19, 1996
PASSED 1ST CONSIDERATION: February 19, 1996
PASSED 2ND CONSIDERATION: February 19, 1996
PASSED 3RD CONSIDERATION: February 19, 1996
PASSED AND ADOPTED by the City Council of the City of
Waterloo, Iowa, on the 19th day of February, 1996, and approved by
the Mayor on the 21st day of February, 1996.
.
John R spreoff, Mayor
ATTEST:
-e 1fAt
Susan Fangman, Ci Sr Clerk
CERTIFICATE
I , Susan Fangman, City Clerk of the City of Waterloo, Iowa, do
hereby certify that the preceding is a true and complete copy of
Ordinance No. 4154, as passed and adopted by the Council of the
City of Waterloo, Iowa, on the 19th day of February, 1996.
Witness my hand and seal of office this 21st day of February,
1996.
2e4r,&d4.,
Susan Fangman, Cit!Clerk
SEAL
cloEO�K c3 O PACE 461
Misc
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INDEX
MARGI
PROOF
COMPARE
20922
c5
BLACK HAWK COUNTY IOWA: SS
Filed for record May 9 , 19 96 at .
3:OOP .M. and recorded in Book 320
of Misc Page 432
Recorder
1-150.00/
CITY OF WATERLOO
CLERK/AUDITOR
ET.1K 320PAR 4611A
FORM I 1 T.
STATE OF IOWA, I do solemnly swear that the annexed copy of legal City of Waterloo
SS
Black Hawk County, Ordinance No. 4154
notice was published in the Waterloo-Cedar Falls Courier, a daily newspaper printed in
Waterloo, Black Hawk County,Iowa,once commencing on the 17th
day of April 19 96 in the name of
said newspaper, and that the annexed rate of advertised is the regular legal rate of said
newspaper,and that the following is a correct bill for publishing said notice.
Printer's Bill$ 782.88
Signed
Subscribed and sworn to before me this /1 iL day of
A.D., 19 9 6
Z-a/t.e-ct
J Notary Public
Received of
the sum of
Dollars
in full for publication of the above notice.