City of Monroe, MI
Monroe County
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Table of Contents
Table of Contents
[HISTORY:[1] Adopted by the Mayor and City Council of the City of Monroe 3-3-1986 by Ord. No. 85-005. Amendments noted where applicable.]
GENERAL REFERENCES
General penalty — See § 1-27.
Telecommunications —  See Ch. 651.
Zoning — See Ch. 720.
STATUTORY REFERENCES
Construction and maintenance of facilities — See MCLA § 247.183 et seq.
Television and radio generally — See MCLA § 750.507 et seq.
Cables improperly located; insurance — See MCLA § 500.3123.
[1]
Editor's Note: Ord. No. 93-013, passed 9-27-1993, adopted regulations consistent with the Communications Act of 1934, as amended, and FCC Rules, with respect to basic cable service rate regulation, and prescribed procedures to provide a reasonable opportunity for consideration of the views of interested parties in connection with basic cable service rate regulation by the City. Copies of such ordinance and of such regulations and rules may be obtained, at cost, from the Clerk/Treasurer.
A. 
The City finds that the development of cable television and communications (CATV) systems has the potential of having great benefit and impact upon the people of Monroe. Because of the complex and rapidly changing technology associated with cable television, the City further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City shall designate. It is the intent of this chapter and subsequent franchise agreements and amendments to provide for the means to attain the best possible CATV system to meet the public interest and public purpose.
B. 
Further, it is recognized that CATV systems have the capacity not only to provide entertainment and information services to the City's residents, but also to provide a variety of broadband communications services to institutions and individuals. Many of these services involve City agencies and other public institutions, by providing governmental, educational or health care communications.
C. 
For these purposes, the following goals underlie the regulations contained herein:
(1) 
Communications services should be provided to the maximum number of City residents.
(2) 
The cable systems should be capable of accommodating both the present and reasonably foreseeable future communications needs of the City.
(3) 
The system should be improved during the franchise term as provided herein, to meet improving standards, technology and the needs of the public. Any facilities added for the operation of this system shall be integrated and shall conform in standards to the existing facilities.
For the purpose of this chapter, 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, and words in the plural number include the singular number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning.
BASIC SUBSCRIBER TELEVISION SERVICES
All subscriber services provided by the franchisee covered by the regular monthly charge paid by all subscribers, and shall include public, education and government channels.
CABLE COMMUNICATIONS SYSTEM
Also referred to as "cable television system," "CATV system" or "broadband communications network." A system of antennas, cables, amplifiers, towers, microwave links, a cablecasting studio and any other conductors, converters, equipment or facilities designed and constructed for the primary purpose of distributing video programming to home subscribers and for the secondary purpose of producing, receiving, amplifying, storing, processing or distributing audio, video, digital or other forms of electronic or electrical signals sold or distributed to subscribers. Such definition shall not include any similar facility that serves only the residents of one or more apartments or multifamily dwellings or condominiums under common ownership, control or management, nor other closed circuit systems for industrial, commercial or similar use to which the general public may not subscribe, so long as the public streets or rights-of-way are not utilized in the provision of such service or interconnection of such facilities.
CHANNEL
A six-megahertz (MHz) frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals.
COMMERCIAL IMPRACTICABILITY
The occurrence of an unforeseen supervening circumstance, the nonoccurrence of which was a basic assumption on which the contract was made, making performance difficult.
CONVERTER
An electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control.
COUNCIL
The Mayor and Council, wherein the Mayor does not possess veto power.
FRANCHISE
The nonexclusive rights authorized by this chapter and granted through a franchise agreement approved by resolution of Council to construct and operate a cable communications system along the public ways within all or a specified area in the City.
FRANCHISE AGREEMENT
A franchise contract entered into voluntarily by a franchisee and the City, containing the specific provisions of the franchise granted.
GROSS ANNUAL REVENUES
The sum of all revenue received by the franchisee from subscribers within the City for the installation and delivery of services, except any taxes on or for services furnished by the franchisee imposed directly on any subscriber by the State of Michigan, the City of Monroe or another governmental unit, and collected by the franchisee on behalf of such entity. However, the term "taxes" shall not include a franchise fee or property or income taxes placed upon the franchisee.
INSTITUTIONAL ACCESS CHANNELS
Channels dedicated to serving nonprofit organizations. Services may include, but are not limited to, one-way video, two-way video and audio or digital signals among institutions to residential subscribers.
MISCELLANEOUS
Includes all definitions relating to technical standards and shall mean the same as they are defined in the Code of Federal Regulations.
NOTICE or REASONABLE NOTICE
Shall apply wherever notice is required, unless otherwise provided. "Notice" means written notice and such notice shall be certified and postmarked not less than five business days prior to that day in which the party giving notice shall commence any action which requires notice. All notices from the franchisee to the City shall be to the Clerk/Treasurer and the City Attorney. The franchisee shall maintain with the City, throughout the term of the franchise, an address for service of notices by mail. The franchisee shall also maintain with the City a local office and telephone number for the conduct of matters related to this franchise during normal business hours. The franchisee shall be required to advise the City of such address and telephone number and any change thereof.
PENETRATION RATE
The total number of subscribers receiving service divided by the number of potential subscribers.
PERSON
An individual, partnership, association, organization, corporation or any lawful successor transferee of said individual, partnership, association, organization or corporation.
PREMIUM CHANNELS SERVICES
Programming or services for which an additional charge is made beyond the charge for basic subscriber services, including, but not limited to, movies, concerts, variety acts, sporting events, pay-per-view programs, interactive services and any other service utilizing any facility or equipment of a cable television system operating pursuant to a franchise granted under this chapter.
PROGRAMMER
Any person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital or other signals, either live or from recorded tapes or other storage media, to users or subscribers by means of the cable communications system.
PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS CHANNEL
Any channel designated or dedicated for use by the general public or noncommercial organizations for public, educational or governmental purposes.
PUBLIC PROPERTY, PLACE, STREET, WAY AND AREA
Includes easements, streets, sidewalks, highways, rights-of-way and any other publicly owned property, including air space above and the area below the surface of such property.
SUBSCRIBER
Any person lawfully receiving and paying for the cable communications service (or a portion thereof) provided by the franchisee.
SYSTEM FACILITIES
The cable communications system constructed for use within the City, including, without limitation, the headend, antenna, cables, wires, lines, towers, amplifiers, converters and health and property security systems, equipment or facilities, located within the corporate limits of the City and designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio and visual radio, television and electronic signals to and from subscribers in the City, and any other equipment or facilities located within the corporate limits of the City intended for the use of the system; provided, however, that such system facility excludes buildings, contracts, facilities and equipment where the primary use is for providing service to other system facilities located outside the City limits.
USER
A person utilizing a channel or equipment and facilities for the purpose of production and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity.
YEAR
The remaining portion of the year in which the franchise is granted. Thereafter, "year" means a full calendar year.
A. 
Regulatory authority. The City shall exercise appropriate regulatory authority under the provisions of this chapter and applicable law. This authority shall be vested in Council and administered through the City's Cable Television Committee or other appointed agency.
B. 
Cable Television Committee. The City may provide administration and enforcement of the provisions of any franchise granted pursuant to this chapter by delegating the responsibility to the Cable Television Committee or any other appropriate body or officer for the conduct of the City's responsibilities relating to cable communications.
(1) 
Bylaws. The Committee shall operate and administer within the bounds of the bylaws that the Committee adopts pursuant to this chapter.
(2) 
Responsibilities. The responsibilities of the Committee shall include, but not be limited to, the following:
(a) 
Monitor and advise the Mayor and Council of the franchisee's compliance or noncompliance with this chapter, franchise agreements, contracts or other ordinances relative to this chapter.
(b) 
Serve as the advisory body for the public, government and educational access channels of cable television and any institutional networks that may be developed.
(c) 
Require the franchisee to submit reports, records and test data, as provided in this chapter.
C. 
Performance evaluation. The franchisee shall, if requested by Council, participate in a public performance evaluation session to be held on the annual date of the franchise.
[Amended 2-20-2001 by Ord. No. 01-002]
A. 
Franchise required. No cable communications system shall be allowed to occupy or use the streets of the City or be allowed to operate without a franchise.
B. 
Authority of Council. City Council is authorized and empowered to grant a nonexclusive and revocable franchise to a qualified applicant, authorizing the franchisee to operate a cable communications system in the City, if it is determined to be in the public interest. The franchise shall be granted by ordinance passed by Council and accepted by the franchisee, and it shall thereupon become a contract between the City and the franchisee.
(1) 
Nonexclusivity. Any franchise granted hereunder shall be nonexclusive, but if more than one franchise is in effect at the same time, the terms and provisions of all such franchises shall be substantially the same, and all such franchises shall expire on the same day.
(2) 
Revocation.
(a) 
Grounds. The City 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] 
The franchisee fails to comply with material provisions of this chapter, its franchise agreement and other written contracts that the franchisee enters into with the City or the access committee relating to the operation of the cable system and service delivery.
[2] 
The franchisee violates any order or ruling relative to this chapter or the FCC or a successor governmental entity or court having jurisdiction over the franchise.
[3] 
The franchisee fails to operate the cable system for any reason within the control of the franchisee, excluding reasonable repair and maintenance shutdowns.
[4] 
Any intentional acts to defraud or deceive the City or the franchisee's subscribers.
(b) 
Procedure.
[1] 
Notice required. Before commencing action against a franchisee for revocation, Council shall give the franchisee written notice:
[a] 
Identifying reasonably each instance of alleged default; and
[b] 
Demanding that the franchisee take corrective action to remedy such grounds within 30 days following receipt of the notice.
[2] 
Proceedings. If the franchisee fails to take corrective action within the time allocated, or fails to pursue such action to timely completion, the City shall use the following procedures to determine whether revocation is warranted:
[a] 
At the request of the franchisee, the Mayor and Council shall hold a full public hearing at which the City shall present any evidence in support of the grounds for revocation. The franchisee shall be provided 10 days' written notice prior to the hearing, which notice shall include:
[i] 
The time and place of the hearing;
[ii] 
The circumstances and conditions which are grounds for revocation;
[iii] 
A summary of the evidence upon which the City relies to support its claims; and
[iv] 
Notice that the franchisee shall provide the City, within five days prior to the hearing, a summary of its evidence to refute the charges and circumstances.
[b] 
At the hearing, the franchisee and the City shall have an opportunity to be heard, to be represented by counsel to question any witnesses presented by the City and/or the franchisee and to present evidence in support of its position.
[c] 
Interested citizens shall have an opportunity to be heard.
[d] 
If, after any required hearing, the City Council determines that an instance of default has occurred, it may:
[i] 
Take no action;
[ii] 
Pass a resolution, by a vote of two-thirds of the members present and voting, terminating the franchise; provided, however, that prior to such passage, the Council shall issue a written statement setting forth its findings of default; or
[iii] 
Pursue such other remedies or take such other action available under applicable law.
[e] 
Any decision or determination by the Council may be subjected to judicial review in an appropriate court of competent jurisdiction.
C. 
Disposition of facilities.
(1) 
Generally. In the event that a franchise expires, is revoked or is otherwise terminated, or in the event that such system or property has been installed in any public place without complying with the requirements of its franchise, the franchisee shall promptly remove all such property and poles of such system within such time as is reasonably allowed by the City. In the event of any such removal, the franchisee shall promptly restore the area from which such property has been removed to a condition the same as or better than that which existed prior to the installation of the franchisee's equipment.
(2) 
Abandonment in place. Any property of the franchisee to be abandoned in place shall be abandoned upon approval of the City and in such manner as the City shall prescribe. Upon permanent abandonment of the property of the franchisee in place, the franchisee shall submit to the City an instrument to be approved by the City transferring to the City the ownership of such property.
D. 
Governing laws. Any franchise granted hereunder shall be consistent with the City Charter and in conformity with all applicable City, state and federal laws, rules and regulations and judicial authority. In the event of a conflict between the franchise agreement and this chapter, the franchise agreement shall prevail.
E. 
Franchise fee. Any franchise granted hereunder shall require the franchisee to pay annually to the City, during the term of the franchise, a franchise fee in an amount equal to 5% of the gross annual revenues as defined in this chapter. Such annual franchise fee shall be paid in two installments. Within 30 days of the close of the first six months of the fiscal period during which this chapter is in force, the franchisee shall pay its estimated franchise fee for the six-month period based upon the franchisee's reasonable estimate of gross annual revenues for the six-month period. Any adjustments required shall be made at the end of the fiscal period pursuant to Subsection E(1) hereof. As part of its five-percent fee, the franchisee shall pay an amount equal to 2% of the gross annual revenues, or such other portion as the City may designate, to the City, to be deposited in the Cable Communication Programming Fund. This fund shall be used for the encouragement, development and production of access programming in the community and shall be administered by the City or its designated agents. The portion of the franchisee fee allocated to the fund may be altered from time to time by Council.
(1) 
Report required. The franchisee shall file with the City, within 30 days after the expiration of the fiscal period during which this chapter is in force, a statement by an appropriate corporate officer of the franchisee or a certified public accountant showing, in appropriate detail, the gross annual revenues, as defined herein, of the franchisee during the preceding calendar year. It shall be the duty of the franchisee to pay to the City, within 15 days after the time for filing such statements, any unpaid balance for the calendar year covered by such statement.
(2) 
Right to inspect. The City shall have the right of reasonable inspection of the franchisee's record of gross annual revenues, as defined herein, for a period of two years after the filing of the required report. However, where there is an indication of fraud, the period shall be six years.
(3) 
Acceptance by the City. No acceptance of any payment by the City shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of the franchisee.
(4) 
Failure to make required payment. In the event that any franchise payment or recomputed amount is not made on or before the date specified, the franchisee shall pay an interest charge of 7% per annum, computed from the due date.
(5) 
Reimbursement of overpayment. The franchisee shall have the right to reimbursement upon discovery of a franchisee overpayment.
(6) 
Maintenance of franchise fee. In the event that it is determined that any governmental entity lacks authority to impose the five-percent franchise fee, the City shall be made whole through renegotiation as to an amount owed to the City by the franchisee for the operation of its system and the use of valuable public property, as long as the resulting payments are not illegal.
F. 
Franchise area. The franchise agreement shall specify and define that portion of the City for which the franchise is granted. If not otherwise stated in the franchise, the franchise area shall be the corporate limits of the City, including all territory thereafter annexed to the City.
G. 
Use of public streets and ways.
(1) 
Generally. Any franchisee shall have the right to use the public property, places, streets and areas, as defined in this chapter, for the construction, maintenance and operation of its cable communications system.
(2) 
Underground and aboveground installations. All installations shall be underground in those areas of the City where public utilities providing both telephone and electric service are underground at the time of installation. In areas where either telephone or electric utility facilities are above ground at the time of installation, the franchisee may install its service above ground, provided that at such time as those facilities are required to be placed underground by the City or are placed underground, the franchisee shall likewise place its services underground. The franchisee is subject to the same conditions, restrictions and benefits as the electric and telephone utilities.
H. 
Duration and acceptance of franchise. The franchise agreement and the rights, privileges and authority granted thereunder shall take effect and be in force from and after its approval by the Mayor and Council and shall continue in force and effect for a term of 15 years.
(1) 
The franchisee shall expressly acknowledge that, upon its acceptance of the franchise, it did so relying upon its own investigation and understanding of the power and authority of the City in connection with the system, this chapter and the franchise agreement. Each of the parties acknowledges by acceptance that it has carefully read the terms and conditions of the franchise.
(2) 
Each of the parties acknowledges that it has not been induced to enter into the franchise by any understanding or promise or other statement not expressed herein, whether oral or written, concerning any term or condition of the franchise, regardless of whether such statement was made by or on behalf of the City.
(3) 
If any provision, term or condition of the franchise results in commercial impracticability in adhering to such provision, term or condition, the franchisee may request modification of the franchise. The Cable Television Committee or such other committee designated by the Mayor and Council shall hold a hearing at which the franchisee shall present evidence in support of the commercial impracticability and necessity of modification. The committee so designated shall make a recommendation to the Mayor and Council. The franchisee may appeal the decision of the committee so designated to the Mayor and Council, which shall elect to modify the franchise or deny the request.
(a) 
The franchisee must serve notice of a request to modify, 30 days prior to the date sought, upon the committee so designated and the Mayor and Council.
(b) 
This review process is applicable to all provisions, terms and conditions of this chapter, the franchise agreement and other contracts, unless a procedure therefor is otherwise provided.
I. 
Renewal. In consideration of the possibility of renewal of a franchise, the City may elect a procedure for renewal. The City, should it decide to renew, may, by written notice to the franchisee at least 39 months prior to the expiration of the franchise, either elect, as a procedure, the procedure laid out in the Cable Communications Policy Act of 1984, as amended, or elect to negotiate the renewal of the franchise independently of such Act in a manner agreed upon by the City and the franchisee. In the absence of an election, it shall be presumed that renewal procedures shall be governed by the Act or any subsequent federal and/or state legislation. If the parties agree to negotiate the renewal independently of such Act, both parties shall have the right to invoke the Act at any time, and if the parties are proceeding under the Act, they may abandon such procedures by mutual consent at any time and renegotiate the renewal independently of the Act.
J. 
Receivership and foreclosure.
(1) 
Termination by insolvency. Any franchise authorized herein shall, at the option of the City, cease and terminate 120 days after the appointment of a receiver or trustee to take over and conduct the business of the franchisee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:
(a) 
Such receivers or trustees shall have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise granted pursuant hereto, and unless the receivers or trustees, within said 120 days, shall have remedied all defaults under the franchise; and
(b) 
Such receivers or trustees shall, within said 120 days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of any franchise granted pursuant to this chapter.
(2) 
Termination by judicial action. Any franchise granted hereunder shall provide that, in the case of a foreclosure or other judicial sale of the plant, property and equipment of the franchisee, or any substantial part thereof, including or excluding the franchise, the City may serve notice of termination upon the franchisee and the successful bidder at such sale, in which event any franchise granted and all rights and privileges of the franchisee thereunder shall cease and terminate 30 days after service of such notice, unless;
(a) 
Council shall have approved the transfer of the franchise in the manner which this chapter provides; and
(b) 
Such successful bidder shall have covenanted and agreed with the City to assume and be bound by all the terms and conditions of the franchise.
K. 
The policy of this chapter is to establish and maintain an impartial competitive environment which will promote the development of cable communications services by numerous providers while protecting the public right-of-way and ensuring adequate compensation for its use. It is the intent of this chapter that all providers of cable communications services shall be equally subject to its terms.
A. 
Performance bond. Within 60 days, or such further time as may be granted by Council by resolution, from the effective date of this chapter, the franchisee shall post a bond of $10,000 in cash or other suitable security to be approved by the City Manager to guarantee its performance of the requirements and conditions of this chapter. Council may at any time, by resolution, waive or reduce said bond or release the security therefor.
(1) 
Conditions. The performance bond shall provide, but not be limited to, the following conditions: There shall be recoverable by the City, jointly and severally, from the principal and surety, any and all fines and penalties due to the City which are not timely paid and any and all damages, losses, costs and expenses suffered or incurred by the City resulting from the failure of the franchisee to comply with one or more provisions of the franchise agreement. Such losses, costs and expenses shall include, but not be limited to, reasonable attorney's fees and other legal expenses.
(2) 
Reduction. Upon written application by the franchisee, the City may, at its sole option, permit the amount of the bond to be reduced or may waive the requirements for a performance bond, subject to the conditions set forth below.
(3) 
Notice to cancel, etc. Not less than 30 days' prior written notice to the City shall be provided of the franchisee's intention to cancel, materially change or not renew the initial provisions of the bond.
B. 
Liability; damages; insurance and indemnity.
(1) 
Liability and insurance. The franchisee shall furnish the City with written evidence of insurance not later than 60 days after the effective date of the franchise and thereafter throughout the duration of the franchise and any extensions or renewals thereof. Failure to provide a certificate of insurance in a timely manner shall constitute a violation of this chapter.
(a) 
Insurance contract coverage limits.
[1] 
The insurance contracts shall insure the franchisee and the City against any claim, demand or loss for injury to persons or damage to property resulting from, growing out of or connected with the construction, operation or maintenance of the CATV system within the City, which contracts of insurance shall have a minimum of:
[a] 
Five hundred thousand dollars for property damage per occurrence;
[b] 
One million dollars for property damage aggregate;
[c] 
Two million five hundred thousand dollars personal injury to any one person;
[d] 
Five million dollars bodily injury aggregate per single accident or occurrence.
[2] 
Such general liability insurance must include coverage for all of the following: comprehensive form, premises operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage and personal injury.
[3] 
Said amounts of insurance coverage may be increased at the request of the City to compensate for inflation.
(b) 
The franchisee shall maintain, throughout the term of the franchise, automobile liability insurance for owned, nonowned or rented vehicles in the minimum amount of:
[1] 
Five hundred thousand dollars for bodily injury and consequent death per occurrence;
[2] 
Five hundred thousand dollars for bodily injury and consequent death to any one person;
[3] 
Two hundred fifty thousand dollars for property damage per occurrence.
(c) 
The franchisee shall maintain, throughout the term of the franchise, workers' compensation and employers' liability, valid in the state, in the minimum amount of:
[1] 
The statutory limit for workers' compensation;
[2] 
One hundred thousand dollars for employers' liability.
(d) 
Any insurance policy obtained by the franchisee in compliance with this section shall be filed and maintained with the Clerk/Treasurer during the term of the franchise and may be changed from time to time to reflect changing liability limits. The franchisee shall immediately advise the City of any litigation that may develop that would affect the franchisee's ability to maintain this insurance.
(e) 
Neither the provisions of this section nor any damages recovered by the City hereunder shall be construed to or shall limit the liability of the franchisee under any franchise issued hereunder or for damages.
(f) 
All insurance policies provided under the requirements of this chapter shall be written by companies authorized to do business in the state and approved by the State Department of Commerce Insurance Bureau.
(g) 
All insurance policies maintained pursuant to a franchise agreement shall contain the following endorsement: It is hereby understood and agreed that this insurance policy may not be canceled by the insurance company nor the intention not to renew be stated by the insurance company until 30 days after receipt by the Clerk/Treasurer and the City Attorney, by registered mail, of a written notice of such intention to cancel or not to renew.
(h) 
All contractual liability insurance policies maintained pursuant to the franchise shall include the provision of the following hold-harmless clause: At any time during the term of the franchise agreement, the City may request, and the franchisee shall comply with such request, to name the City as an additional named insured for all insurance policies written under the provisions of the franchise agreement.
(2) 
Indemnification. The franchisee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, its officers, boards and commissions and City employees against any and all claims, suits, actions, liability and judgments for damages, including, but not limited to, expenses for reasonable legal fees and disbursements and liabilities assumed by the City in connection therewith:
(a) 
To persons or property, to the extent attributable, arising out of or through the acts or omissions of the franchisee, its servants, agents or employees. This indemnity shall not apply to the extent the claim is attributable to the negligence or other fault of the City or any of its agents, servants or employees.
(b) 
Arising out of any invasion of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation (excluding claims arising out of or relating to City programming or access programming).
(c) 
Arising out of the franchisee's failure to comply with the provisions of any federal, state or local statute, ordinance or regulation applicable to the franchisee in its business hereunder.
(3) 
The foregoing indemnity is conditioned upon the following: The City shall give the franchisee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent the City from cooperating with the franchisee and participating in the defense of any litigation by its own counsel at its sole cost and expense.
C. 
Fines.
(1) 
Assessment. The following fines shall apply and liability therefor shall accrue from the date of the dispatch of notice, unless otherwise provided.
(a) 
A violation of the rights of individuals and privacy considerations, unless through no fault of the franchisee, as provided in this chapter: $50 per subscriber per occurrence, up to a maximum of $250 per occurrence.
(b) 
Failure of the system to perform, through a fault of the franchisee, in the event of a public emergency or vital information situation: $500 per occurrence.
(c) 
For failure to restore damaged property to an injured party: the franchisee shall restore property within 30 days, unless circumstances prevent restoration and notice of such damaged area is given to the City, including actual costs of restoration.
(d) 
Upon failure of the franchisee to provide evidence of insurance to the City, the City shall notify the franchisee within five days of the due date. If not corrected within five days, the franchisee shall be fined $50 per day, up to a maximum of $500 per occurrence. After the ten-day period, the City may seek insurance.
(e) 
For occurrences of multiple similar unresolved service-oriented complaints, the City may assess a fine of $10 per occurrence, up to $250 per month.
(2) 
Procedure for assessment.
(a) 
For a fine to be assessed there shall be a hearing before the Cable Television Committee or other designated committee where the franchisee may produce evidence of complaint resolution or action taken. If the Cable Television Committee or other designated committee makes a finding to assess the fine, such recommendation shall be given to Council.
(b) 
Council shall hear evidence at a public hearing where the franchisee may introduce evidence on its behalf. Council may assess a fine in accordance with this chapter. The franchisee has 10 business days to pay such fine. Thereafter the City levies against the security. If at any time such complaints are resolved satisfactorily prior to Council assessment of said fine, the process shall cease.
A. 
Construction and technical standards. The franchisee shall construct, install, operate and maintain its system in a manner consistent with all laws, ordinances, construction standards, governmental requirements and FCC technical standards. The franchisee, through the system, shall provide uniform, strong signals which are free from any significant distortion and interference. The system shall be designed, established, constructed, operated and maintained for 24 hours a day continuous operation. The system shall produce, for reception on subscribers' receivers which are in good working order, either monochrome or color pictures (provided that the receiver is color capable) which are free from any significant interference or distortion which would cause any material degradation of video or audio quality.
(1) 
State of the art. The franchisee shall establish, construct, install, operate and maintain its system in accordance with the highest standards of the art of cable communications, such standards to include, but not be limited to, the following:
(a) 
The system will be spaced to permit a minimum of 400 MHz operation and will be capable of utilizing the latest state-of-the art home terminals and other devices.
(b) 
The system will utilize home terminals which make the system adaptable for development of future services.
(c) 
The franchisee shall maintain its system facility in a manner which will continue to enable it to add new services and associated equipment as they are developed, available and proved marketable to subscribers. The new services and associated equipment will be added to the system facilities when they are determined to be technically reliable and adaptable to the system at a cost to the subscriber that is acceptable in the marketplace.
(d) 
The franchisee shall maintain its system facility in a manner which will reasonably ensure that signals originating from any source regulated by the FCC shall not cause detectable interference to the system.
(2) 
Prior approval. Prior to erection or installation by the franchisee of any towers, poles, underground conduits or fixtures for use in connection with the installation, construction, maintenance or operation of a cable communications system authorized under this chapter, the franchisee shall first submit to the City and other designated parties for approval a concise description of the facilities proposed to be erected or installed, including engineering drawings, if required, together with a map and plans indicating the proposed location of all such facilities. No erection or installation of any tower, pole, underground conduit or fixture for use in a cable communications system shall be commenced on public property by any person until approval therefor has been received from the City. Such approval shall not be unreasonably withheld.
(3) 
Noninterference with public ways. The franchisee's system and associated equipment erected by the franchisee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places. No poles or other fixtures placed in any public ways by the franchisee shall be placed in such a manner as to interfere with normal travel on such public way.
(4) 
Accuracy of maps. The City does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures. In public rights-of-way, where necessary, the location shall be verified by excavation.
(5) 
Conformity with technical standards. Construction, installation and maintenance of the public communications system shall be performed in an orderly and workmanlike manner, in accordance with then current technological standards. All cables and wires shall be installed, where possible, parallel with electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations.
(a) 
The franchisee shall at all times comply with:
[1] 
The National Electrical Safety Code (ANSI);
[2] 
The National Electrical Code (National Fire Protection Association);
[3] 
The Bell System Code of Pole Line Construction; and
[4] 
Applicable FCC or other federal, state and local regulations.
(b) 
In any event, the system shall not endanger or interfere with the safety of persons or property in the franchise area or other areas where the franchisee may have equipment located.
(c) 
All worker facilities, conditions and procedures that are used during construction, installation and maintenance of the cable system shall comply with the standards of the Occupational Safety and Health Administration.
B. 
Noninterference. Any cable communications system operating hereunder shall be operated and maintained in such a manner as to assure an essentially leakfree system providing sharp, clear and steady reception, and so that it will not interfere with any installations of the City or a public utility serving the City, any other television or communications receivers not connected to the facilities of the franchisee, or any type of electronic communications equipment. The franchisee shall promptly take appropriate measures to eliminate any such interference after notice thereof.
(1) 
Interference caused by subscribers. Interference generated by a subscriber's radio or television receiver or by equipment of a subscriber attached to the franchisee's equipment shall be the responsibility of the subscriber; provided, however, that the franchisee shall be responsible for the suppression of such receiver or equipment generated interference that is distributed by the franchisee's system when the interfering signals are introduced into the system at the receiver or point of connection of such equipment of the subscriber. If the cause of interference has been identified as resulting from the receiver or equipment of a subscriber, the franchisee shall advise the subscriber to take corrective action to eliminate the interference and shall offer to assist the subscriber in such action. If the subscriber refuses to take corrective action or if corrective action cannot be taken for any reason, the franchisee may disconnect the subscriber from the system until corrective action has been taken or the offending receiver or equipment has been replaced.
(2) 
Standby power. The franchisee shall maintain equipment capable of providing standby power for a minimum of four hours for the headend and three hours for transportation and trunk amplifiers.
C. 
Extension of service. The franchisee shall provide additional service only in those areas of the City in which installation and operation of the communications system would be economically feasible. The franchisee shall extend its communications system to additional residential areas not already served by a cable system within 12 months after the density in such areas has reached 50 homes per cable mile. In calculating cable mile, the distance from the existing cable to the new area shall be included, but the distance from a street or easement to a residence shall not be included.
D. 
Use of streets.
(1) 
Interference with persons, improvements, public and private property and utilities. The franchisee's system and facilities, including poles, lines, equipment and all appurtenances, shall be located, erected and maintained so that such facilities shall:
(a) 
Not endanger or interfere with the health, safety or lives of persons;
(b) 
Not interfere with any improvements the City, county or state may deem proper to make;
(c) 
Not interfere with the free and proper use of public streets, alleys, bridges, easements or other public ways, places or property, except to the minimum extent possible during actual construction or repair;
(d) 
Not interfere with the rights and reasonable convenience of private property owners, except to the minimum extent possible during actual construction or repair; and
(e) 
Not obstruct, hinder or interfere with any gas, electric, water or telephone facilities or other utilities located within the City.
(2) 
Restoration. In case of any disturbance or change in the condition of any pavement, sidewalk, driveway, other surfacing or real property, restoration to a condition equal to the surrounding area or better than the area must be done in a workmanlike manner in accordance with the same standards for such work performed by the City. Restoration shall take place no more than 30 days after the damage has occurred, unless circumstances prevent restoration and notice of such damaged area is given to the City.
(3) 
Erection, removal and common use of poles. The franchisee shall use its best efforts to make use of already existing poles serving the City. The City may require the franchisee to use such poles and structures where public convenience would be enhanced thereby and the terms of the use available to the franchisee are just and reasonable. If the City determines that the franchisee may erect poles, no poles shall be erected by the franchisee without prior approval of the City with regard to location, height, type and any other pertinent aspect. However, no location of any pole or wireholding structure of the franchisee shall give rise to a vested interest, and such poles or structures shall be removed or modified by the franchisee at its own expense whenever the City determines that the public convenience would be enhanced thereby.
E. 
Maintenance of system.
(1) 
Number of channels. The franchisee shall provide at least 36 usable channels that have been tested and accepted to meet FCC specifications at the farthest point from the headend and shall adhere to the maintenance procedures described in Appendix A, attached to original Ordinance No. 85-005, passed March 3, 1986.
(2) 
Maintenance technician. The franchisee shall provide for a maintenance technician on call 24 hours a day.
(3) 
Response time. The franchisee shall, between the hours of 6:00 a.m. and 12:00 midnight, immediately respond to any problem attributable to an area outage that affects five or more customers, and it shall respond to any problems attributable to an area outage affecting less than five subscribers within the following 24 hours.
(4) 
Notice of shutdown. The franchisee shall, at least 12 hours before any shutdown initiated by the franchisee, give notice on designated channels where loss of service affects five or more subscribers.
(5) 
System-related service calls. The franchisee will not charge for any service call if the problem is system related.
A. 
Generally. All cable communications systems shall be operated in compliance with all applicable federal, state and City laws, rules, regulations and appropriate judicial decisions.
B. 
Nondiscrimination. It shall be the obligation of the franchisee to serve all residents of the City within the franchise area served by the franchisee, without regard to the income level of the residents of the local area in which any group of potential subscribers resides. It shall be the further obligation of the franchisee to provide uniform customer service to all residents and geographic areas of the City within the franchise area serviced by the franchisee. The rates for the cable communications system shall be applied fairly and uniformly to all subscribers in the City in accordance with the rate schedule established from time to time by the franchisee. Nothing contained herein shall prohibit the franchisee from offering:
(1) 
Discounts to commercial and multiple residential dwelling subscribers billed on a bulk basis;
(2) 
Promotional discounts;
(3) 
Reduced installation rates for subscribers having multiple services; or
(4) 
Special discounts (e.g., senior citizen discounts).
C. 
Equal opportunity. The franchisee shall not refuse to hire or employ, nor bar or discharge from employment, any person, nor discriminate against any person in compensation or in terms, conditions or privileges of employment, because of age, race, religion, handicap, color, national origin or sex.
D. 
Records.
(1) 
The franchisee shall maintain the following records for a period of two years:
(a) 
All service logs;
(b) 
The number of installations;
(c) 
The number of disconnections;
(d) 
The number of subscribers to each premium channel;
(e) 
Changes in channel programming;
(f) 
All technical reports required elsewhere in this chapter, and maps and plans;
(g) 
All complaints received; and
(h) 
Proof of a performance bond.
(2) 
All records maintained, pursuant to Subsection D hereof, shall be available for inspection and for copying, where requested by the Cable Television Committee or other designated committee upon 48 hours' notice. The Cable Television Committee or other designated committee shall comply with all state and federal privacy acts regarding information and records obtained from the franchisee.
E. 
Programming services. Each franchisee shall include the following in the programming services offered to subscribers:
(1) 
Basic cable service: as defined in § 244-2.
(2) 
Premium channels, as defined in § 244-2.
(3) 
Public access channels, as defined in § 244-2 and as may be further provided in the franchise agreement.
(4) 
Leased access channels, as required by the Cable Communications Policy Act of 1984, as amended, or future federal law. The operator shall have sole responsibility for all operating aspects and for the fixing of rates and conditions for leased access use.
(5) 
Pay-per-view to the extent such programming becomes available on an economically viable basis.
(6) 
If requested, the franchisee shall submit to any local publisher of daily, weekly or monthly guides, notice of a change in programming or in services offered. Such notice shall also be submitted to the Clerk/Treasurer and the City Attorney.
(7) 
The franchisee shall use its best efforts to ensure diversity of programming.
(8) 
The franchisee shall use its best efforts to provide modern, up-to-date cable service to take advantage of new industry developments and to include in its operations and planning measures to avoid obsolescence of its system facilities and services.
F. 
Lockout devices. The franchisee shall provide to each potential subscriber information concerning the availability of a lockout device for use by a subscriber. Such device shall permit the subscriber to lock out any nonbasic cable service channel and shall be made available by the franchisee upon the subscriber's request. The franchisee may sell or lease the lockout device to its subscribers. Lockout devices must be available to a subscriber within 30 days of the effective date of the franchise and throughout the duration of the franchise.
G. 
Privacy safeguards. The franchisee shall comply with all requirements of the Cable Communications Policy Act of 1984, as amended, regarding the privacy of subscribers.
H. 
Privacy monitoring. The franchisee shall not permit the transmission of any signal (aural, visual or digital), including "polling" or monitoring the channel selection from any subscriber's premises, without first obtaining written permission of the subscriber. This provision is not intended to prohibit the use or transmission of signals useful only for the control or measurement of system performance. A franchisee shall not permit the installation of any special terminal equipment in any subscriber's premises of two-way services utilizing aural, visual or digital signals, without first obtaining written permission of the subscriber. No franchisee shall predicate regular subscriber service on the subscribers granting of such permission. Without written authorization from the subscriber, neither the franchisee nor any other person shall activate, use, operate or tap any channel from a subscriber's location. A subscriber may revoke any authorization previously given by delivering to the franchisee a written statement of that intent. The franchisee shall not tabulate, nor permit others to tabulate, any subscriber use of the cable communication system which would reveal the opinions or commercial product preferences of individual subscribers, whether residential or business, or of any occupant or user of the subscriber's premises.
I. 
Subscriber privacy.
(1) 
The franchisee shall not disclose any information concerning individual subscriber viewing habits or responses, except as required by programming or service providers. Nor shall the franchisee disclose any of the following without the subscriber's consent:
(a) 
Lists of names and addresses of such subscribers;
(b) 
Any list which identifies the viewing habits of individual subscribers; and
(c) 
Personal data, such as the social security number, income and other data the franchisee may have on file about a subscriber.
(2) 
This subsection shall not be construed to prevent the disclosure of any such information reasonably required in any legal action or collection procedure.
J. 
Inspections. Construction work and installation by the franchisee shall be subject to reasonable inspection and approval by the City.
K. 
Barriers and warning devices. Any installation or removal thereof shall be adequately protected by barriers and warning devices for the reasonable protection of the public.
L. 
Tree trimming. The City Manager may, in his or her discretion, grant permission for the trimming of trees when necessary to make the lines of the franchisee safe and accessible, such trimming to be done under the supervision of the City.
M. 
Raising wires. At its own expense, the franchisee shall make due provision, upon notice, to raise its wires or otherwise remove them, for the passage of any building or structure of any form or character on or over any street, highway or other public place occupied by any property of the franchisee for City purpose; provided, however, that this section shall not restrict the franchisee from requiring reasonable reimbursement for the cost thereof (payable in advance) from private sources where private interests are involved.
N. 
Local office. The franchisee shall maintain an office in the City or within 10 miles of the City. Such office shall have reasonable office hours. All service-oriented complaints received by the office shall be recorded or logged.
O. 
Service calls and complaint procedure. The franchisee shall respond to and resolve subscribers' complaints or requests for service in connection with repairs, maintenance and malfunctions of system facilities. The franchisee shall respond as quickly as possible to such complaints and requests but shall in any case respond within one business day. Complaints or requests which may pose a potential health and safety hazard will be responded to immediately. In connection with construction complaints, the franchisee shall respond within five business days. Installations will be done within one week of a request by a subscriber.
P. 
Emergency override. The franchisee shall, without charge, provide service and maintain public emergency transmission facilities to the City, as described in the franchise agreement.
Where there is an area outage for a period of 48 hours or more, the franchisee shall automatically give a prorated credit on a subscriber's monthly charges. Where outage is sporadic, and such outage is for a period of 48 hours or more, the subscriber shall be entitled to a prorated credit on the subscriber's monthly charges. Outage shall include the impairment or disruption of the signal which is caused by the negligence or failure to act of the franchisee, or the inability of the franchisee to correct leakage caused by the franchisee.
[Amended 8-2-1999 by Ord. No. 99-006]
A. 
Definitions.
AFFILIATE
Any person or entity that owns or controls, is owned or controlled by, or is under common ownership or control with a franchisee.
CONTROL
The legal or practical ability to exert actual working control over the affairs of the franchisee, either directly or indirectly, whether by contractual agreement, majority ownership interest, any lesser ownership interest or in any other manner, whether active or passive. A presumption that a transfer of control has occurred shall arise upon the acquisition or accumulation of 5% or more of the ownership of a franchisee by any person or group of persons acting in concert, none of whom already own or control 50% or more of such right or control, singularly or collectively, whether such ownership is active or passive. A franchisee is responsible for ensuring that the intent of this section is carried out. If for any reason an event occurs that would require the City's approval under this section, whether or not such event is, directly or indirectly, within the franchisee's control, such event shall constitute a "transfer" for purposes of this section, other applicable law and a franchise agreement.
TRANSFER
Any transaction in which:
(1) 
Any ownership (active or passive) or other right, title or interest of more than 5% in a franchisee or its cable system is transferred, sold, assigned, leased, sublet or mortgaged, directly or indirectly, in whole or in part;
(2) 
There is any change, acquisition or transfer of control of the franchisee or its direct or indirect parents;
(3) 
The rights and/or obligations held by the franchisee under the franchise are transferred, directly or indirectly, to another party or affiliate;
(4) 
Any change or substitution occurs in the general partners of the franchisee where applicable;
(5) 
The franchisee, or its corporate parents at any level, enter into any transaction that materially increases the debt that is to be borne by the cable system, directly or indirectly, in a manner that may adversely affect system rates or services; or
(6) 
Any assets or property of the franchisee used or held in connection with a cable system are subjected to any lien, mortgage, lease or security interest.
B. 
Application for transfer.
(1) 
A franchisee shall promptly notify the City of any proposed transfer, change in control and/or assignment.
(2) 
At least 120 calendar days prior to the contemplated effective date of transfer, a franchisee shall submit to the City a written application for the approval of the transfer. Such an application shall provide complete information on the proposed transaction, including details on the legal, financial, technical and other qualifications of the transferee, and on the potential impact of the transfer on subscriber rates and service. At a minimum, the following information must be included in the application:
(a) 
All information and forms required under federal law.
(b) 
Name and address of the applicant and identification of the ownership and control of the applicant, including the names and addresses of the 10 largest holders of the ownership interest in the applicant and affiliates of the applicant, and all person(s) with 5% or more ownership in the applicant and its affiliates; the person(s) who control the applicant and its affiliates; all officers and directors of the applicant and its affiliates; and any other business affiliation and cable system ownership interest of each named person.
(c) 
A statement detailing its business or corporate organization, including but not limited to a statement disclosing five-percent or greater interests that the applicant has in any other business, corporation or partnership and a statement describing all intra-company relationships of the applicant, including parent, subsidiary or affiliated companies.
(d) 
If the applicant is a corporation, audited financial statements for the five previous fiscal years. If the applicant is a partnership, copies of the U.S. Partnership Return of Income (IRS Form 1065) for the five previous fiscal years. If the applicant is a sole proprietorship, copies of personal financial statements for the five previous fiscal years.
(e) 
An estimated five-year operations pro forma which shall include the initial and continuing plant investment, annual profit and loss statements detailing income and expenses, annual balance sheets and annual levels of subscriber penetration. The pro forma shall also state the average return on investment anticipated by the applicant for the five-year operations period and shall state the method of computation thereof. Costs anticipated for voluntary services or contributions shall, if presented, be incorporated in the pro forma as required in this chapter.
(f) 
A statement prepared by a certified public accountant regarding the applicant's financial ability to complete the construction and operations of the cable system proposed.
(g) 
A list of existing franchises held by the applicant indicating when the franchises were issued and when the systems were constructed in each respective governmental unit, together with the name and address and phone number of a responsible governmental official knowledgeable of the applicant.
(h) 
A statement detailing the applicant's prior operational experience in cable television systems and/or microwave service, including that of its officers, management and any staff to be associated with the proposed operations.
(i) 
Identification of the area of the City to be served by the proposed cable system, including a description of the proposed franchise area's boundaries.
(j) 
A general statement of the applicant's ability and intent to incorporate technological improvements and advancements in the cable television system as such improvements or advancements are generally available in the industry, including services such as Internet, data, and/or telephony service.
(k) 
A demonstration of the applicant's legal qualifications to construct and/or operate the proposed cable system, including but not limited to a demonstration that the applicant meets the following criteria:
[1] 
The applicant must not have had an application for an initial or renewal franchise in the City lawfully denied within three years preceding the submission of the application;
[2] 
The applicant must not have had any cable television franchise lawfully revoked by any franchising authority within three years preceding the submission of the application;
[3] 
The applicant must have the necessary authority under Michigan law to operate a cable system;
[4] 
The applicant must have the necessary authority under federal law to hold the franchise and operate a cable system. An applicant must have, or show that it is qualified to obtain, any necessary federal, state, or local franchises, waivers, permits, licenses or domestic or foreign clearances required to operate the system proposed;
[5] 
The applicant shall not have been convicted, at any time during the 10 years preceding the submission of the application, of any act or omission of such character that the applicant cannot be relied upon to deal truthfully with the City and the subscribers, or to substantially comply with its lawful obligations under applicable laws, including obligations under consumer protection laws and laws prohibiting anticompetitive acts, fraud, racketeering, or other similar conduct;
[6] 
The applicant shall not have filed materially misleading information in its application or have intentionally withheld information that the applicant lawfully is required to provide.
(l) 
If the applicant proposes to provide cable service to an area already serviced by an existing franchise, the identification of the area where the overbuild would occur and the ability of the public rights-of-way and other property that would be used by the applicant to accommodate an additional cable system.
(m) 
A detailed statement of the corporate or other business entity organization of the proposed transferee, together with an explanation of how decisions regarding the system will be made if the proposed transaction is approved.
(n) 
Any contracts, financing documents or other documents that relate to the proposed transaction, and all other documents, schedules, exhibits or the like referred to therein.
(o) 
Any documents related to the transaction (including any documents regarding rates the transferee expects to charge) that have been provided to any entity that has been asked to provide financing (debt, equity or other kind) for or to underwrite any offering made in connection with the proposed transaction.
(p) 
Any shareholder reports or filings with the Securities and Exchange Commission (SEC), the Federal Trade Commission (FTC) or the Federal Communications Commission (FCC) that discuss the transaction, and any filings required under federal or state law in connection with the proposed transaction.
(q) 
Complete financial statements for the franchisee and any potential transferees for the last three years, including balance sheets, income statements, profit and loss statements, and documents detailing capital investments and operating costs.
(r) 
A detailed description of the sources and amounts of the funds to be used in the proposed transaction, indicating how the debt-equity ratio of the system will change in the course of the transaction; what entities will be liable for repayment of any debt incurred; what interest, payment schedule and other terms or conditions will apply to any debt financing; any debt coverages or financial ratios any potential transferees will be required to maintain over the franchise term if the proposed transaction is approved; what financial resources would be available to the system under the control of the proposed transferee; whether the proposed transferee can meet debt-equity or any other required ratios without increasing rates, with any assumptions underlying that conclusion, and, if not, what increases would be required and why.
(s) 
Any other information necessary to provide a complete and accurate understanding of the financial position of the system before and after the proposed transfer, including but not limited to two sets of projected income statements and cash flow statements, including capital investments, for at least five years after the proposed transfer, one set assuming the transfer is approved, and one set assuming the transfer is not approved, each set stating specifically what assumptions are being made with respect to any rebuild and upgrade of the system.
(t) 
Complete information regarding any potential impact of the transfer on subscriber rates and services.
(u) 
A detailed analysis of franchise fee payments made by the franchisee or any affiliate, during the life of the franchise, showing:
[1] 
Total gross revenues, by category (e.g., basic, pay, pay-per-view, advertising, installation, equipment, late charges, Internet services, miscellaneous, other);
[2] 
What revenues, by category, were included in the calculation of the franchise fee, so that it is clear what, if any, revenues were not included and the dollar value of those exclusions;
[3] 
The value of any noncash compensation received (e.g., trades for advertising spots), showing what amounts of noncash compensation were included in the franchise fee calculation;
[4] 
What, if any, deductions were made from revenues in calculating the franchise fee (e.g., bad debt), and the amount of each deduction;
[5] 
If an outside agency was used to collect revenue (e.g., a collection agency, an advertising agency paid on the basis of percentage of sales, a data, Internet services or telephony provider), how much revenue was received by these agencies, and the total amount of revenues included for purposes of the franchise fee calculation.
(v) 
Information sufficient to permit the City to determine the franchisee's compliance with its franchise obligations over the term of the franchise, including specific descriptions of any noncompliance of which the franchisee or any potential transferee is aware.
(w) 
Any representations made to anyone, in connection with the transaction, about the franchisee's compliance with its franchise.
(x) 
A brief summary of the proposed transferees plans for at least the next five years regarding line extensions, plant and equipment upgrades, channel capacity, expansion, play and equipment upgrades, channel capacity, expansion or elimination of services and any other changes affecting or enhancing the performance of the system.
(y) 
The City may, at its discretion and upon request of an applicant, waive in writing any of the information required by this section. The City may request additional information after receiving an application, and an applicant must respond fully and completely to such report.
(3) 
At the franchisee's option, the franchisee may notify the City of the proposed transaction in general terms at least 150 days prior to the contemplated effective date of a transfer and request that the City waive some or all of the information requirements specified in Subsection B(2) of this section and the reasons for such request. To the extent consistent with the applicable law, the City may waive in writing any such requirement that information be submitted as a part of the initial application, without thereby waiving any rights it may have to request such information after the initial application is filed.
(4) 
For the purpose of determining whether it shall consent to a transfer, the City or its agents may inquire into all qualifications of the prospective transferee and such other matters as the City may deem necessary to determine whether the transfer is in the public interest and should be approved, denied or conditioned. The franchisee and any prospective transferees shall assist the City in any such inquiry, and if they fail to do so, the request for transfer may be denied.
C. 
Determination by City.
(1) 
In making a determination as to whether to grant, deny or grant subject to conditions an application for a transfer, the City may consider, without limitation, the legal, financial, and technical qualification of the transferee to operate the system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with this chapter and its franchise agreement, and, if not, whether the proposed transferee will cure any noncompliance; whether the transferee owns or controls any other cable system in the City, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the City; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the City's interest under this chapter, a franchise, other applicable law, or the public interest or make it less likely that the future cable-related needs and interests of the community would be satisfied at a reasonable cost.
(2) 
Any transfer without the City's prior written approval shall be ineffective and shall make a franchise subject to cancellation at the City's sole discretion, and to any other remedies available under this chapter, a franchise agreement or applicable law.
(3) 
The franchisee shall be fully liable under this chapter for any transfer that is in violation of the terms of this chapter and caused in whole or in part by any other entity or entities, including but not limited to any parents or affiliated entities, as if such transfer had been caused by the franchisee itself.
(4) 
Any mortgage, pledge or lease shall be subject and subordinate to the rights of the City under this chapter, a franchise agreement and applicable law.
(5) 
If any transfer should take place without prior notice to the City, the franchisee and the transferee shall within five working days notify the City that such a transfer has occurred. Franchisee and transferee shall be subject to all of the requirements of this section and shall also be subject to any and all sanctions, fines and penalties of this chapter and any other applicable City ordinance or state statute.
D. 
Transferee's agreement. No applications for a transfer shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and a franchise agreement, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee under this chapter and a franchise agreement for all purposes, including renewal, unless the City, in its sole discretion, expressly waives this requirement in whole or in part.
E. 
Consent of City to transfer or assignment shall not constitute waiver of City rights. The consent or approval of the City Council to any transfer of a franchise shall not constitute a waiver or release of any of the rights of the City unless the City specifically releases or waives such rights.
F. 
Franchisee must notify City of any agreement to transfer or assign cable system or terms of sale. A franchisee must notify the City whenever it reaches a definitive written agreement to transfer its cable system or any portion thereof. A franchisee must also notify the City of the terms and conditions of any proposed transfer.
G. 
Processing fee may be imposed by City. The City may impose a processing fee upon a franchisee and/or the transferee to cover the City's direct or indirect costs of considering and evaluating any application for a transfer of a franchise.
Any franchise granted to a person desiring to construct a new cable communications system in the City shall be issued pursuant to and subject to this chapter and shall comply with § 244-4, but may contain such additional construction requirements and financial security provisions as the City may reasonably deem necessary to assure the timely construction of a cable communications system of the type and quality required hereby.
The franchisee shall have no recourse whatsoever against the City or its officials, boards, commissions, agents or employees for any loss, costs or expense of damages arising out of any provision or requirement of the franchise or because of the enforcement of the franchise, unless such loss, costs or damages are occasioned by negligence or intentional acts.
The franchisee shall agree to be bound by all terms and conditions agreed to in the request for information as listed in Appendix B attached to original Ordinance No. 85-005, passed March 3, 1986. Appendix B is hereby incorporated by reference and made a part of this chapter. No other oral or written statements or agreements are binding, unless they are in writing and mutual modifications are as provided in this chapter.
A. 
The franchisee 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 such provision is prevented for reasons beyond the franchisee's control. A fault shall not be deemed to be beyond the franchisee's control if it is committed by a corporation or other business entity in which the franchisee holds a controlling interest, whether held directly or indirectly.
B. 
Pending litigation to which the franchisee is a party shall not exclude the franchisee from the performance of its obligations under this chapter and under the contractual agreement between the City and the franchisee. Failure of the franchisee to perform such obligations because of pending litigation may result in forfeiture or revocation of the franchise pursuant to the provisions of this chapter. Further, the franchisee cannot use pending litigation of another as an excuse not to perform or comply with this chapter.
No person, whether or not a subscriber of the cable system, may intentionally or knowingly damage or cause to be damaged any wire, cable, conduit, equipment or apparatus of the franchisee, or commit any act with intent to cause such damage, or tap, tamper with or otherwise connect any wire or device to a wire, cable, conduit, equipment and apparatus or appurtenances of the franchisee with intent to obtain a signal or impulse from the cable system without authorization from or compensation to the franchisee, or obtain cable television or other communications service with intent to cheat or defraud the franchisee of any lawful charge to which it is entitled.
A. 
In accepting any franchise granted by the City pursuant to this chapter, the franchisee acknowledges that its rights hereunder are subject to the police power of the City to adopt and enforce general ordinances necessary for the safety and welfare of the public, and it agrees to comply with all applicable general laws and ordinances enacted by the City pursuant to such powers.
B. 
Any conflict between the provisions of this chapter or the franchise agreement and any other present or future lawful exercise of the City's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or that applies exclusively to the franchisee or the cable communications system, which contains provisions inconsistent with this chapter, shall prevail only if, upon such exercise, the City reasonably finds that an emergency exists constituting a danger to health, safety, property or general welfare, and such exercise is mandated by law.
If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held invalid by the FCC or its successor agency or any court or agency of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this chapter.
The franchisee shall not be excused from complying with any of the terms and conditions of any franchise by any failure of the City, upon any one or more occasions, to insist upon or to seek compliance with any such terms or conditions.