[Ord. No. 3535 Art. III §1, 9-15-2003]
A. In addition
to the inherent powers of the City to regulate and control this Franchise,
and those powers expressly reserved by the City, or agreed to and
provided for herein, the right and power is hereby reserved by the
City to promulgate such additional regulations as it shall find necessary
in the exercise of its lawful powers and in furtherance of the terms
and conditions of this Franchise.
B. The City
may also adopt such regulations at the request of Grantee upon application.
[Ord. No. 3535 Art. III §2, 9-15-2003]
A. Grantee
may hold performance evaluation sessions in year two (2) of the Franchise
and every two (2) years thereafter or as may be required by Federal
or State law or by the City. All such evaluations shall be open to
the public.
B. All evaluation
sessions shall be announced in a newspaper of general circulation
in accordance with the general legal notice requirements. Grantee
shall notify its Subscribers of all evaluation sessions by announcement
on at least one (1) channel of its system for five (5) consecutive
days preceding each session.
C. Topics
which may be discussed at any scheduled or special evaluation session
may include, but not be limited to: service rate structure; franchise
fees; penalties; discounted services; application of new technologies;
system performance; services provided; programming offered; customer
complaints; privacy; amendments to this Franchise; judicial and FCC
rulings; line extension policies; and City or Grantee rules.
D. Grantee
and the City will attempt to coordinate at all times and shall meet
on an informal basis at any time requested by either party to discuss
services, performance guidelines, and any other issue related to this
Agreement.
[Ord. No. 3535 Art. III §3, 9-15-2003]
A. Grounds For Revocation. City reserves the right to revoke
the 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 Grantee
should default in the performance of any of its material obligations
under this Chapter or under such documents, contracts and other terms
and provisions entered into by and between the City and Grantee.
2. If Grantee
should fail to provide or maintain in full force and effect the liability
and indemnification coverage's as required herein.
3. If Grantee
should frequently violate any orders or rulings of any regulatory
body having jurisdiction over Grantee relative to this Franchise unless
such orders or rulings are being contested by Grantee in a court of
competent jurisdiction.
4. If Grantee
fails to receive necessary FCC approval.
5. If Grantee
ceases to provide services for any reason within the control of Grantee.
6. If Grantee
attempts to evade any of the provisions of this Chapter or the Franchise
agreement or practices any fraud or deceit upon the City.
B. Procedure Prior To Revocation.
1. The
City shall make written demand by certified mail to Grantee to comply
with any such requirement, limitation, term, condition, rule or regulation
and shall provide Grantee with minimum of thirty (30) days to cure
the City's complaint. If the default, failure, refusal or neglect
of Grantee continues for a period of thirty (30) days following such
written demand, the City may place its request for termination of
the Franchise upon a regular Council meeting agenda. The City shall
cause to be served upon Grantee, at least ten (10) days prior to the
date of such Council meeting, a written notice of this intent to request
such termination, and the time and place of the meeting, notice of
which shall be published by the City Clerk at least once, ten (10)
days before such meeting in a newspaper of general circulation within
the City.
2. The
City shall hear any persons interested therein and shall determine,
in its discretion, whether or not any default, failure, refusal or
neglect by Grantee was with just cause.
3. If such
default, failure, refusal or neglect by Grantee was with just cause,
the City shall direct Grantee to comply within such time and manner
and upon such terms and conditions as are reasonable.
4. If the
City shall determine such default, failure, refusal or neglect by
the Grantee was without just cause, then the Council may, by resolution,
declare that the Franchise of Grantee shall be terminated.
C. Restoration Of Property. In removing its plant, structures
and equipment, Grantee shall refill, at its own expense, any excavation
that shall be made by it and shall leave all public ways and places
in as good condition as prevailed prior to Grantee's removal of its
equipment and appliances without affecting the electrical or telephone
cable wires or attachments. The City shall inspect and approve the
condition of the public ways and public places and cables, wires,
attachments and poles after removal. The liability, indemnity and
insurance as provided herein shall continue in full force and effect
during the period of removal and until full compliance by Grantee
with the terms and conditions of this paragraph and this Chapter.
D. Restoration By City, Reimbursement Of Costs. In the event of a failure by Grantee to complete any work required herein, including Subsection
(C) above, or any other work required by City law or ordinance within the time as may be established and to the reasonable satisfaction of the City, the City may cause such work to be done and Grantee shall reimburse the City the reasonable cost thereof within thirty (30) days after receipt of an itemized list of such costs. The City shall be permitted to seek legal and equitable relief to enforce the provisions of this Section.
E. Improvements. At the expiration or termination of this Franchise
Agreement, at the City's sole discretion, all permanent improvements
including equipment owned by Grantee will, at the direction of the
City, either:
1. Remain
intact on the City's right-of-way property and become the property
of the City, or
2. Be removed
by Grantee within forty-five (45) days pursuant to the above stipulations.
F. Extended Operation. Upon the revocation of a Franchise,
the City may require Grantee to continue to operate the system for
a period of time not to exceed three (3) months from the date of such
revocation. Grantee shall, as trustee for its successor in interest,
continue to operate the CS 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 that time.
The City shall be permitted to seek legal and equitable relief to
enforce the provisions of this Section.
G. Rights Not Affected. The termination and forfeiture of any
Franchise shall in no way affect any of the rights of the City or
Grantee under the Franchise or any provision of law.
[Ord. No. 3535 Art. III §4, 9-15-2003]
A. The Franchise
herein granted shall, at the option of the City, cease and terminate
one hundred twenty (120) days after the appointment of a receiver
or receivers or trustee or trustees to take over and conduct the business
of Grantee, its licensee, successor, transferee or assignee, whether
in a receivership, reorganization, bankruptcy or other action or proceeding,
unless such receivership or trusteeship shall have been vacated prior
to the expiration of said one hundred twenty (120) days or unless:
1. Such
receivers or trustees shall have, within one hundred twenty (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 the receivers or trustees within said one hundred
twenty (120) days shall have remedied all defaults under the Franchise;
and
2. Such
receivers or trustees shall, within said one hundred twenty (120)
days, execute any 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 the
Franchise herein granted.
B. In the
case of a foreclosure or other judicial sale of the plant, property
and equipment of Grantee or any substantial part thereof including
or excluding this Franchise, the Council may serve notice of termination
upon Grantee and the successful bidder at such sale, in which event
the Franchise herein granted and all rights and privileges of Grantee
hereunder shall cease and terminate thirty (30) days after service
of such notice, unless:
1. The
Council shall have approved the transfer of this Franchise as and
in the manner in this Chapter provided, and
2. Such
successful bidder shall have covenanted and agreed with the City to
assume and be bound by all the terms and conditions of this Franchise.
[Ord. No. 3535 Art. III §5, 9-15-2003]
Notwithstanding any other provisions of this Franchise to the
contrary, Grantee shall at all times comply with all laws and regulations
of the State and Federal Government or any administrative agencies
thereof which relate to the conduct of Grantee's system business.
[Ord. No. 3535 Art. III §6, 9-15-2003]
If by reason of force majeure either party is unable in whole
or in part to carry out its obligations hereunder, said party shall
not be deemed in violation or default during the continuance of such
inability. The term "force majeure", as used herein,
shall mean the following: acts of God; acts of public enemies; orders
of any kind of the government of the United States of America or of
the State or any of their departments, agencies, political subdivision,
or officials, or any civil or military authority; insurrections; riots,
epidemics; landslides; lightning; earthquakes; fires; hurricanes;
volcanic activity; storms; floods; washouts; droughts; civil disturbances;
explosions; strikes; unavailability of essential equipment, services
and/or materials beyond the control of the Grantee; and any other
matters beyond the reasonable control of the Grantee.
[Ord. No. 3535 Art. III §7, 9-15-2003]
In the event that a court or agency of competent jurisdiction
declares by final decision that any provision of this Franchise is
unenforceable according to its terms or is otherwise void, said provision
shall be considered a separate, distinct and independent part of this
Agreement, and such declaration shall not affect the validity and
enforceability of all other provisions of this Agreement. Alternatively,
the City and Grantee may agree to modify any such provisions to the
reasonable extent necessary to make such provisions enforceable if
such modifications are consistent with the full intent and purposes
of this Agreement.
[Ord. No. 3535 Art. III §8, 9-15-2003]
This Agreement sets forth the entire agreement between the parties
respecting the subject matter hereof. All agreements, covenants, representations
and warranties, express and implied, oral and written, of the parties
with regard to the subject matter hereof are contained herein. No
other agreements, covenants, representations or warranties, express
or implied, oral or written, have been made by any party to another
with respect to the matter of this Agreement. All prior and contemporaneous
conversations, negotiations, possible and alleged agreements, representations,
covenants and warranties with respect to the subject matter hereof
are waived, merged herein and therein and superseded hereby and thereby.
This is an integrated Agreement.