Sections:
4.16.01 Short title
4.16.02 Definitions
4.16.03 Grant of authority
4.16.04 Compliance with applicable laws and ordinance
4.16.05 Company liability-indemnification
4.16.06 Service standards
4.16.07 Company rules
4.16.08 Condition on street occupancy
4.16.09 Payments to the city
4.16.10 Rates and charges
4.16.11 Free connection and service
4.16.12 Records and reports
4.16.13 Term of franchise and renewal thereof
4.16.14 Construction of system
4.16.15 Separate system
4.16.16 Comply with FCC standards
4.16.17 Extension of franchise to include areas annexed
4.16.18 Publication costs
4.16.19 Activities prohibited
4.16.20 Transfer of franchise
4.16.21 Foreclosure
4.16.22 Receivership
4.16.23 Amendment
4.16.01 Short Title. This Ordinance shall be known and may be cited as the Mayflower Cable T.V. Ordinance.
(Ord. No. 83-4, Sec. 1.)
4.16.02 Definitions. For the purpose of this Ordinance, the following term, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular number, and words used in the singular number include the plural number. The word “shall” is always mandatory and not merely directory.
A. “City” is the City of Mayflower, Arkansas.
B. “Company” is the grantee of rights under this Ordinance awarding a Franchise and is Mayflower Cablevision.
C. “Person” is any person, firm, partnership, association, corporation, company or organization of any kind.
D. “System” shall mean the entire installation.
E. “F.C.C. “shall mean the Federal Communication Commission. (Ord. No. 83-4, Sec. 2.)
4.16.03 Grant of authority. This non-exclusive Franchise by the City is in the exercise of its Police Powers. There is hereby granted by the City to the Company the non-exclusive right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over and under the streets, and alleys, public ways and public places now laid out or dedicated, utility or any other easements now laid out or dedicated, and all extensions or additions of any of the same in the City, poles, wires, cables, underground conduits, man-holes and other television conductors and fixtures of any sort necessary or incident to the maintenance and operation in the City of a community television system for the reception and distribution of television signals, subject to use by the City of Mayflower, Arkansas.
It is agreed and understood that this is a non-exclusive Franchise being awarded by the City of Mayflower Arkansas. (Ord. No. 843-4, Sec. 3.)
4.16.04 Compliance with applicable laws and ordinance. The Company shall, at all times during the life of this Franchise, be subject to all lawful exercise of the Police power by the City, and to such reasonable regulation as the City shall hereafter by Ordinance provide. (Ord. No. 83-4, Sec. 4.)
4.16.05 Company liability-indemnification. It is expressly understood by and between the Company and the City that the Company shall save the City harmless from all loss sustained by the City on account of any suit of any nature, including contractual, court costs, attorney fees, judgement, execution, claim or demand whatsoever resulting from negligence on the part of the Company in the construction, operation or maintenance of the System described in this Franchise.
The City shall notify the Company’s representative in the City within Fifteen (15) days after the presentation of any claim or demand to the City, either by suit or otherwise, made against the City on account of any negligence as aforesaid on the part of the Company. The Company shall carry and pay the cost of the following liability insurance in support of its undertaking to hold the City harmless from loss sustained on account of the negligence of the Company, in at least the amounts indicated below, for injury to or death of persons and injury to or destruction of property.
A. $100,000.00 for property damage to any one person.
B. $500,000.00 for any one accident.
C. $100,000.00 for personal injury to any one person.
D. $500,000.00 for any one accident
E. In the event the City Council believes that it is necessary and responsible for the protection of citizens of the City, they may require that the amounts of insurance set out above may be increased. The Company shall comply with all provisions of the Workman’s Compensation Law of Arkansas. (Ord. No. 83-4, Sec. 5.)
4.16.06 Service standards. The Company shall maintain a suitable business office in the City, which office shall be open during all usual business hours, have a listed telephone, and be so operated that complaints and requests for repairs or adjustments may be received at any time and further, a complaint procedure shall be established by said local office and all complaints shall receive prompt attention within no longer than two (2) days from the receipt of notice by the Company. Failure to substantially comply with this provision shall be a violation of this Franchise and can result in termination of this Franchise by a majority vote of the City Council. (Ord. No. 83-4, Sec. 6.)
4.16.07 Company rules. The Company shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary or incident to the exercise by the Company of its rights or as shall be its obligations under this Franchise, and to assure an uninterrupted service to each and all of its customers. (Ord. No. 83-4, Sec. 7.)
4.16.08 Condition on street occupancy
A. The Company may enter into one of more contracts with Arkansas Power and Light Company, Southwestern Bell Telephone Company or the owner or lessee of any poles or posts located within the City to whatever extent such contract or contracts may be expedient and of advantage to the Company in furnishing the service covered by this Franchise to its customers.
B. The Company system, poles, wires and appurtenances shall be located, erected and maintained so that none of it shall endanger or interfere with the lives of persons, or interfere with any improvements the City may deem proper to make or hinder unnecessarily or obstruct the free use of the street, alleys, bridges, easements, or public property.
C. The Company shall not place poles or other fixtures where the same will interfere with any gas, electric or telephone fixtures, water hydrant or main; and all such poles or other fixtures placed in or on any street or other easement of the City of Mayflower, shall be placed according to the requirements of the City Council and any City Ordinance and then in such a manner as not to interfere with the usual travel on said streets, alleys and public ways or use of such easements.
D. The City shall have the right at its own expense to designate an engineer to approve the Company’s plans and, if an engineer be so designated, no construction shall be commenced without the prior approval of said engineer based upon plans submitted to him. All property shall be restored to its original condition at the cost of the Company. (5) In the case of a street crossing or driveway, the Company will not cut a street or driveway unless all other alternatives have been exhausted. The Company will be totally responsible for restoration to the original condition. (Ord. No. 83-4, Sec. 8.)
4.16.09 Payments to the city. The Company shall pay to the City, in addition to any and all privilege licenses and ad valorem or other taxes hereafter levied by the City, a sum equivalent to three percent (%) of the annual gross operating revenues received by the Company for services rendered to customers within the City during each year of operation under this Franchise. “Annual Gross Operating Revenues” shall consist of receipts from Customers located in the City for transmission of television signals by the Company under contracts with such customers and does include revenues from the Sale of optional Pay TV services. The Company agrees to pay the City the Sum of$ 12,000.00 thirty days after the Franchise Agreement is signed and awarded. (Ord. No. 83-4, Sec. 9.)
4.16.10 Rates and charges. In its rates, charges, service facilities, rules, regulations or in any other respect; the Company shall not make or grant any preference or advantage to any person, not subject any person to any prejudice or disadvantage within the same classification of service. The Company shall have the right to establish different classification of service for residential and commercial users and to adopt charges and rates schedules to which any subscriber within those classifications shall be entitled. The initial schedule of subscriber charges are set forth in Amendment #1. (Ord. No. 83-4, Sec. 10.)
4.16.11 Free connection and service. The Company shall furnish, upon request, six (6) outlets for each local school, one (1) outlet for each municipal building of Facility within its service area and not more than one hundred fifty (150) feet from the Company’s existing service facilities. An initial connection to each such building will be made free of charge; internal wiring and additional connections will be done for the cost of time and materials only. (EXCEPTION: The internal wiring for the six (6) outlets for each school will be free.) In no case will there be a monthly charge for service to such buildings. In addition, the Company agrees that one channel of its System will be reserved for the use of the City as a public service, educational or information channel. The City will furnish any special equipment necessary to feed public service, educational or informational programs originated by the City into the Company’s system. The Company reserves the right to use the channel described herein at any time or during any period for which no program or use of such channel is scheduled by the City in accordance with reasonable rules to be prescribed by the Company. (Ord. No. 83-4, Sec. 11.)
4.16.12 Records and reports. The City shall have access at all reasonable hours to all of the Company’s plans, contracts and engineering, accounting, financial, statistical, customer and service records relating to the property and the operation of the Company and to all other records required to be kept hereunder. The following records and reports shall be filed with an appropriate City Official and shall be available in the local office of the Company:
A. Company Rules and Regulations. Copies of such rules, regulations, terms, and conditions adopted by the Company for the conduct of its business.
B. Annual Gross Operating Revenues. An annual certified report showing annual gross revenues, annual expenses and total investment of the Company from its operating within the City during the preceding year and such other information which the City shall reasonably request with respect to properties and expenses related to the Company’s services within the City for such a period. (Ord. No. 83-4, Sec. 12.)
4.16.13 Term of franchise and renewal thereof. The franchise and rights herein granted shall take effect and be in force from and after the final passage hereof as required by law, and shall continue in force and effect for a term of twenty (20) years. The Company may petition the City for a renewal and renegotiation of this franchise when not more than two (2) years remain in the term of said franchise and the City shall not arbitrarily refuse to renew said franchise at such time. (Ord. No. 83-4, Sec. 13.)
4.16.14 Construction of system. Upon grant of this franchise to construct and maintain a community television system in the City, the Company must enter into contracts with the Arkansas Power and Light Co., Southwestern Bell Telephone Company or others for the use of poles and posts necessary for proper installation of the system, obtain right of way permits from appropriate State, County and Federal officials necessary to cross highways or roads under their respective jurisdiction to supply the main trunk lines from the Company’s receiving antennae, obtain permission from the Federal Aviation Administration to erect and maintain antennae suitable to the needs of the system and its subscribers and obtain whatever other permits a city, county, state or federal agency may require. In the construction, installation and maintenance of its system the Company will use steel, cable, and electronic devices, all of specialized and advanced design and type; in the operation of this system, the Company will employ personnel with training, skill and experience in electronics and communications. Promptly after the grant of this franchise, the Company shall furnish a bond with corporate surety issued by a company acceptable to the City in the amount of $5,000.00; payable to the City and conditioned upon completion of construction of the system as specified herein. The said bond may be reduced to $2,500.00 upon completion of construction. Within thirty (30) days of the effective date of the franchise, the Company shall diligently pursue acquisition of all necessary certificates, permits, licenses and agreements which are required to construct a CATV system in the City. The first installation shall be within sixty (60) days of the approval of permits, certificates, license and agreements. The Company shall fully construct and make operational the proposed CATV system within twelve (12) months following the date of the franchise award. Progress reports are to be made to the City Council at sixty (60) day intervals. (Ord. No. 83-4, Sec. 14.)
4.16.15 Separate system. The system in the City shall be operated as a distinct and separate system from any other system of the Company; however, interconnections with other systems are authorized. The office and field staff of the Company, other than the local manager, shall be composed of residents of the City, if it is reasonably possible to do so, and the company shall train such employees at its own expense to obtain locally qualified personnel. (Ord. No. 83-4, Sec. 15.)
4.16.16 Comply with FCC standards. Any modification in the Federal Communication Commission standards applicable to the system shall be automatically incorporated in and become a part of the franchise granted the Company within one (1) year of the final adoption of any such modification by the Federal Communication Commission. (Ord. No. 83-4, Sec. 16.)
4.16.17 Extension of franchise to include areas annexed. The Company shall within one (1) year of notification by the City, extend its broad band telecommunications network so as to provide “full network service” to all residents of newly annexed areas of the City not then served by a broad band telecommunications network where there are at least 40 dwelling units per mile of cable plant. (Ord. No. 83-4, Sec. 17.)
4.16.18 Publication costs. The Company shall assume the costs of publication of this Ordinance as such publication is required by law. a bill for publication costs shall be presented to the Company by the appropriate City officials upon the Company’s filing of its acceptance of this franchise and the said publication costs shall be paid at that time by the Company. (Ord. No. 83-4, Sec. 18.)
4.16.19 Activities prohibited. The Company shall not allow its cable or other operations to interfere with television reception of persons not served by the Company, nor shall the system interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the residents of the City. The Company shall not perform repair services to television sets and shall not permit any of its employees, installers, or servicemen to perform such services on their own or to recommend how or by whom such repair services should be performed. It is not the intention of the parties that this franchise shall embrace the area of operation generically known as “Pay TV” except with regard to the establishment of a mutually agreeable franchise fee for such service. (Ord. No. 83-4, Sec. 19.)
4.16.20 Transfer of franchise.
A. The franchise granted under this ordinance shall be a privilege to be held in personal trust by the Grantee. It shall not be assigned, transferred, sold or disposed of, in whole or in part by a voluntary sale, merger, consolidation or otherwise or by force or involuntary sale, without prior consent of the City
Council expressed by ordinance and then on only such conditions as may there in be prescribed. The City is hereby empowered to take legal or equitable action to set aside, annul, revoke or cancel the franchise, or the transfer of the franchise, if said transfer it not made according to the procedures set forth in this ordinance.
B. Any sale, transfer, or assignment shall be made by a bill of sale or similar document, and executed copy of which shall be filed with the City Clerk within thirty (30) days after such sale, transfer or assignment. The City Council shall not withhold its consent unreasonably, provided, however, the proposed assigned
agrees to comply with all the provisions of this ordinance and the franchise and must be able to provide proof of financial responsibility as determined by the Board.
C. No such consent shall be required for a transfer in trust, mortgage, or other instrument of hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed seventy-five (75%) percent of the fair market value of the property used by the Grantee in the operation of its cable television system. Prior consent of the City Council, expressed by ordinance, shall
be required for such transfer and said consent shall not withheld unreasonably.
D. Prior written notice to the City Council shall be required where ownership or actual working control or more than fifty (50%) percent of the right of control of the Grantee is acquired by a person or group of persons acting in concert, singularly or collectively. By its acceptance of this Franchise, the Grantee
specifically grants and agrees that any such acquisition occurring without prior notice to the Board shall constitute a violation of this Franchise by the Grantee.
E. The Grantee shall promptly notify the City Council of any actual or proposed change in, or transfer of, or acquisition by any other party of control of the Grantee. Every change, transfer or acquisition of control of the Grantee shall make the Franchise subject to cancellation unless and until the City Council shall have consented thereto. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the City Council may inquire into the qualifications of the prospective controlling party, and the Grantee shall assist the City Council in any such inquiry. If the City Council does not schedule a hearing on the matter within sixty (60) days after notice of the change or proposed change and the filing of a petition requesting its consent, it shall be deemed to have consented. In the event that the City Council adopts an ordinance denying its consent and such change, transfer or acquisition of control has been affected, the City Council may cancel the Franchise unless control of the Grantee is restored to its status prior to the change, or to a status acceptable to the City Council.
F. The consent of the City Council to any sale, transfer, lease trust, mortgage or other instrument of hypothecation shall not constitute a waiver or release of any of the rights of the City under this ordinance and the Franchise. (Ord. No. 83-4, Sec. 20.)
4.16.21 Foreclosure. Upon the foreclosures or other judicial sale or all or a substantial part of the System or upon the termination or any lease covering all or a substantial part of the System, the Grantee shall notify the City Council of such fact, and such notification shall be treated as a notification that a change in control of the Grantee has taken place. (Ord. No. 83-4, Sec. 21.)
4.16.22 Receivership. the City shall have the right to cancel this Franchise one hundred and twenty (120) days after the appointment of a receiver, or trustee, to take over and conduct the business of the 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 fully comply with all the provisions of this ordinance and remedied all defaults there under; and
B. Such receiver or trustee, within said one hundred and twenty (120) days shall have executed an agreement, consented to by the Board and 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 ordinance and the Franchise granted to the original Grantee. (Ord. No. 83-4, Sec. 22.)
4.16.23 Amendment
Notes
Off-System Connection Charges
In the even that a dwelling unit is either located more than 150 feet from the Company’s cable system or requires underground connection, such connection will be done at the cost or time and materials.
Each school will get up to six (6) free outlets and free monthly service. Each municipal facility will get one (1) free outlet and free monthly service.
The Company reserves the right to set rates as it deems appropriate and reasonable, so long as those rates shall not exceed the rates which would result from the application of the cost of-living increase that has accrued from the date of enactment of this ordinance to any date the rates are reset to the initial rates specified above, unless approved by the City Council. For such computation the national Consumer Price Index shall be used to represent changes in the cost of living. The initial rates as established herein shall remain in effect during the Company’s first two years of operation. In cases where City approval is required, the Company shall make a formal request to the City, and the City shall respond to such request within sixty (60) days of the date of said request. Unless notified to the contrary by the City, the requested rate shall be effective ninety (90) days following the rate increase request.
