A.
In the event that the County shall grant to the grantee
a nonexclusive, revocable franchise to construct, operate, and maintain
a cable communications system within the County, said franchise shall
constitute both a right and an obligation to provide the services
of a cable communications system as regulated by the provisions of
this chapter and the franchise. The franchise shall include by reference
those provisions of the grantee's application for franchise that are
finally negotiated and accepted by the County and grantee.
B.
The franchise shall be granted under the terms and
conditions contained herein, consistent with the County's Charter
and/or other applicable statutory requirements. In the event of conflict
between the terms and conditions of this chapter, the franchise, or
the terms and conditions on which the County may grant a franchise,
the Charter and/or statutory requirements shall control.
C.
Any franchise hereafter granted by the County or any
previously existing franchises hereafter renewed shall be made subject
to the general ordinance provisions now in effect and hereafter made
effective. Nothing in the franchise shall be deemed to waive the requirements
of the various codes and ordinances of the County regarding permits,
fees to be paid, or manner of construction.
The franchise area shall be the portions thereof
for which a franchise is granted.
For the purpose of operating and maintaining
a cable communications system in the County, the grantee may erect,
install, construct, repair, replace, reconstruct and retain in, on,
over, under, upon, across and along the public streets and ways within
the County such wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments and other
property and equipment as are necessary to the operation of the cable
communications systems; provided, however, that the grantee complies
with all design, construction, safety, and performance provisions
contained in this chapter, the franchise agreement, and other applicable
local ordinances.
No poles shall be erected by the grantee in
public rights-of-way without prior approval of the County with regard
to location, height, type and any other pertinent aspect. No location
of any pole of the grantee shall be a vested right, and such poles
shall be removed or modified by the grantee at its own expense whenever
the County determines that the public convenience would be enhanced
thereby. The grantee shall utilize existing poles and conduits, where
possible. The County shall have the right, during the life of the
franchise, to install and maintain free of charge upon the poles owned
by the grantee any wire and pole fixtures that do not unreasonably
interfere with the cable system operations of the grantee.
No cable communications system shall be allowed
to occupy or use the streets of the County or be allowed to operate
without a franchise.
All franchises granted by the County will be
nonexclusive. The County specifically reserves the right to grant
at any time such additional franchises for a cable communications
system as it deems appropriate.
A.
Any franchise granted hereunder cannot be sold, transferred,
leased, assigned or disposed of, including, but not limited to, by
force or voluntary sale, merger, consolidation, receivership or other
means, without the prior consent of the County, which consent will
not be unreasonably withheld. For the purpose of determining whether
it shall consent to such change, transfer, or acquisition of control,
the County may inquire into the legal, financial, character, technical
and other public interest qualifications of the prospective controlling
party, and the grantee shall assist the County in any such inquiry.
B.
The grantee shall promptly notify the County of any
actual or proposed change in, or transfer of, or acquisition by any
other party of, control of the grantee. The word "control" as used
herein is not limited to major stockholders but includes actual working
control in whatever manner exercised.
C.
The County agrees that any financial institution having
a pledge of any franchise or its assets for the advancement of money
for the construction and/or operation of the franchise shall have
the right to notify the County that it or its designees satisfactory
to the County will take control and operate the cable television system.
Further, said financial institution shall also submit a plan for such
operation that will ensure continued service and compliance with all
franchise obligations during the term the financial institution exercises
control over the system. The financial institution shall not exercise
control over the system for a period exceeding one year, unless extended
by the County at its discretion, and during said period of time it
shall have the right to petition for transfer of the franchise to
another grantee. If the County finds that such transfer, after considering
the legal, financial, character, technical and other public interest
qualifications of the applicant, is satisfactory, the County will
transfer and assign the rights and obligations of such franchise as
are in the public interest. The consent of the County to such transfer
shall not be unreasonably withheld.
[Amended 7-24-2001 by Bill No. 837]
D.
The consent or approval of the County to any transfer
of the grantee shall not constitute a waiver or release of the rights
of the County in and to the streets, and any transfer shall, by its
terms, be expressly subject to the terms and conditions of this chapter
and the franchise.
E.
Any approval by the County of transfer of ownership
or control shall be contingent upon the prospective controlling party
becoming a signatory to the franchise.
Upon completion of the term of any franchise
granted under this chapter, the franchise may be renewed under such
terms and conditions as the parties may agree; provided, however,
that any such renewal process shall be subject to, and governed by,
any existing federal or state laws or regulations regarding same.
A.
In accepting a franchise, the grantee acknowledges
that its rights thereunder are subject to the police power of the
County to adopt and enforce general ordinances necessary to the safety
and welfare of the public, and it agrees to comply with all applicable
general laws and ordinances enacted by the County pursuant to such
power.
B.
Any conflict between the provisions of this chapter
or the franchise and any other present or future lawful exercise of
the County's police powers shall be resolved in favor of the latter,
except that any such exercise that is not of general application in
the jurisdiction or applies exclusively to grantee or cable communications
systems which contains provisions inconsistent with this chapter shall
prevail only if, upon such exercise, the County finds an emergency
exists constituting a danger to the health, safety, property or general
welfare and such exercise is mandated by law.
A.
The County finds that the streets of the County and
state, used by the grantee in the operation of its system within the
boundaries of the franchise area, are valuable public properties acquired
and maintained by the County and state at great expense to its taxpayers,
and that the grant to the grantee to the said streets is a valuable
property right without which the grantee would be required to invest
substantial capital in right-of-way costs and acquisitions. Furthermore,
the County finds that the administration of this chapter or a franchise
imposes upon the County additional regulatory responsibility and expense.
Based on these findings, the County may impose a franchise fee. Should
the County decide to impose a franchise fee, a grantee of any franchise
hereunder shall pay to the County a franchise fee in an amount no
greater than the maximum amount permitted under applicable federal,
state, or local law. The County will provide the grantee with 30 days'
notice of its intent to impose a franchise fee.
B.
Franchise fee payments shall be in addition to any
other tax or payment owed to the governments or other taxing jurisdiction
by the grantee.
C.
Any franchise fee assessed shall be payable semiannually
to the County. The grantee shall file a complete and accurate verified
statement of all gross revenue within the County during the period
for which said semiannual payment is made, and said payment shall
be made to the County not later than 45 days after the expiration
of each semiannual period. Semiannual computation dates are the last
day in the months of June and December. The County shall be furnished
a certificate of said payment by a corporate officer, reflecting the
total amounts of annual gross revenues and the above charges and computations
for the period covered by the payment.
D.
The County shall have the right to inspect the grantee's
income records and the right to audit and to recompute any amounts
determined to be payable under this section. Audits shall be at the
expense of the grantee if a material difference is found between audited
and reported results. Any additional amount due to the County as a
result of the audit shall be paid within 30 days following written
notice to the grantee by the County which notice shall include a copy
of the audit report.
A.
The County reserves the right to revoke any franchise
granted hereunder and rescind all rights and privileges associated
with the franchise in the following circumstances, each of which shall
represent a default and breach under this chapter and the franchise
grant:
(1)
If the grantee shall default in the material performance
of any of the material obligations under this chapter or under such
documents, contracts and other terms and provisions entered into by
and between the County and the grantee.
(2)
If the grantee shall fail to provide or maintain in
full force and effect the required liability and indemnification coverages
or the performance bond as required in the franchise agreement.
(3)
If the grantee's construction schedule is delayed
later than the schedule contained in the franchise or beyond any extended
date set by the County.
(4)
If the grantee fails to restore service under the
conditions specified in the franchise agreement.
(5)
If the grantee fails to comply with the provisions
of this chapter or the franchise.
B.
The grantee shall not be declared at fault or be subject
to any sanction under any provision of this chapter in any case in
which performance of any such provision is prevented for reasons beyond
the grantee's control. A fault shall not be deemed to be beyond the
grantee's control if committed by a corporation or other business
entity in which the grantee holds a controlling interest whether held
directly or indirectly.
C.
Pending litigation or any appeal to any regulatory
body or court having jurisdiction over the grantee shall not excuse
the grantee from the performance of its obligations under this chapter
or the franchise. Failure of the grantee to perform such obligations
because of pending litigation or petition may result in forfeiture
or revocation pursuant to the provisions of this section.
D.
Prior to revocation, the following procedures shall
be followed:
(1)
The County shall make written demand that the grantee
comply with any requirement, limitation, term, condition, rule or
regulation or correct any action deemed cause for revocation. If the
failure, refusal or neglect of the grantee continues for a period
of 45 days following such written demand, the County may place its
request for termination of the franchise upon a regular Council meeting
agenda. The County shall cause to be served upon such grantee at least
seven days prior to the date of such Council meeting a written notice
of the intent to request such termination, and the time and place
of the meeting, notice of which shall be published by the County at
least once, seven days before such meeting, in a newspaper of general
circulation within the County.
(2)
The Council shall hear any persons interested therein,
and shall determine whether or not any failure, refusal or neglect
by the grantee was with just cause.
(3)
If such failure, refusal or neglect by the grantee
was with just cause, as defined by the County, the Council shall direct
the grantee to comply within such time and manner and upon such terms
and conditions as are reasonable.
(4)
If the Council shall determine such failure, refusal,
or neglect by the grantee was without just cause, then the Council
shall, by resolution, declare that the franchise of the grantee shall
be terminated and bond forfeited unless there be compliance by the
grantee within 90 days.
E.
In the event a franchise expires, is revoked or otherwise
terminated, the County may order the removal of the system facilities,
with the exception of trunk cables, required by public necessity from
the County within a reasonable period of time, or require the original
grantee to maintain and operate its system for a period of six months
or until such further time as is mutually agreed upon.
F.
In removing its plant, structures and equipment, at
the request of the County, the grantee shall refill, at its own expense,
any excavation that shall be made by it and shall leave all public
ways and places in as good a condition or better as that prevailing
prior to the grantee's removal of its equipment and appliances without
affecting the electrical or telephone cable wires or attachments.
The County shall inspect and approve the condition of the public ways
and public places and cables, wires, attachments, and poles after
removal. The liability, indemnity, insurance and performance bond
as provided herein shall continue in full force and effect during
the period of removal and until full compliance is achieved by the
grantee with the terms and conditions of this subsection, this chapter
and the franchise.
G.
In the event of a failure by the grantee to complete any work required by Subsections E and/or F above after 30 days' written notice, the County may cause such work to be completed, and the grantee shall reimburse the County the cost thereof within 30 days after receipt of an itemized list of such costs, or the County may recover such costs through the performance bond provided by the grantee. The County shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
H.
Upon either the expiration or revocation of a franchise,
the County may require the grantee to continue to operate the system
for a period of six months from the date of such expiration or revocation,
or until such time as is mutually agreed upon. The grantee shall,
as trustee for its successor in interest, continue to operate the
cable communications system under the terms and conditions of this
chapter and the franchise and to provide the regular subscriber service
and any and all of the services that may be provided at the time.
The County shall be permitted to seek legal and equitable relief to
enforce the provisions of this section.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Equal opportunity employment shall be afforded
by all operators of cable television systems to all qualified persons,
and no person shall be discriminated against in employment because
of race, color, religion, age, national origin, sex, or physical or
mental handicap. The grantee shall comply with all equal opportunity
provisions enacted by federal, state and local authorities, as well
as all such provisions contained in this chapter and the franchise.
All notices from the grantee to the County pursuant
to this chapter and the franchise shall be to the County Manager or
his designee. The grantee shall maintain with the County, throughout
the term of the franchise, an address for service of notices by mail.
The grantee shall also maintain with the County a local office and
telephone number for the conduct of matters related to the franchise
during normal business hours. The grantee shall be required to advise
the County of such address(es) and telephone numbers and any changes
thereof.
The grantee shall not be excused from complying
with any of the terms and conditions of this chapter or the franchise
by any failure of the County upon any one or more occasions to insist
upon or to seek compliance with any such terms or conditions.
A.
The County shall have the right to inspect all books,
records, reports, maps, plans, financial statements, and other like
materials of the grantee relative to the franchise, at any time during
normal business hours.
B.
The County shall have the right to inspect all construction
or installation work performed subject to the provisions of the franchise
and to make such tests as it shall find necessary to ensure compliance
with the terms of this chapter and other pertinent provisions of the
law.
C.
At all reasonable times, the grantee shall permit
examination by any duly authorized representative of the County, of
system facilities, together with any appurtenant property of grantee
situated within or without the County.
