[Ord. #89-07]
In the event that Grantor shall grant to a Grantee a nonexclusive,
revocable franchise to construct, operate, maintain, and reconstruct,
a Cable Communications System within the franchise area, or a renewal
of an existing franchise, said franchise shall constitute both a right
and an obligation to provide the services of a Cable Communications
System as required by the provisions of this chapter and the Franchise
Agreement.
Any franchise granted under the terms and conditions contained
herein shall be consistent with Federal laws and regulations and State
general laws and regulations. In the event of conflict between the
terms and conditions of the franchise and the terms and conditions
on which the Grantor can grant a franchise, the general law and/or
statutory requirements shall, without exception, control.
Any franchise granted is hereby made subject to all general
ordinance provisions. Nothing in the franchise shall be deemed to
waive the requirements of the other codes and ordinances of the Grantor
regarding permits, fees to be paid or manner of construction.
[Ord. #89-07]
No Cable Communications System shall be allowed to occupy or
use the streets in the franchise area or be allowed to operate without
a franchise in accordance with the provisions of this chapter.
[Ord. #89-07]
The Grantor may establish appropriate requirements for new franchises or franchise renewals, and may modify these requirements from time to time to reflect changing conditions and state of art in the cable industry. Such requirements shall not be retroactive to franchises then in effect, except as set forth in subsection 6-4.12, but shall become applicable when the franchise is renewed.
[Ord. #89-07]
The Grantor may grant a franchise for all or any defined portion
of the City. The service area shall be the entire area defined in
the Franchise Agreement. The initial service area shall be that portion
of the franchise area scheduled to receive initial service, as stated
in the Franchise Agreement.
[Ord. #89-07]
For the purpose of operating and maintaining a Cable Communications
System in the franchise area, and subject to the provisions of Section
7-10 herein, 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 franchise area such wires,
cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, pedestals, attachments, and other property and equipment
as are necessary and appurtenant to the operation of the Cable Communications
System. Prior to construction or alteration, however, the Grantee
shall in each case file plans with the appropriate Grantor agencies
and local utility companies, and receive approval before proceeding.
Grantee shall in any event comply with all applicable Grantor construction
codes and procedures.
[Ord. #89-07]
The term of any new franchise and all rights, privileges, obligations
and restrictions pertaining thereto shall be as established in the
Franchise Agreement, unless terminated sooner as hereinafter provided.
[Ord. #89-07]
Any franchise granted shall be nonexclusive. The Grantor specifically
reserves the right to grant, at any time, such additional franchises
for a Cable Communications System as it deems appropriate, provided
however, that such additional grants shall not operate to materially
modify, revoke or terminate any rights previously granted to any Grantee.
[Ord. #89-07]
Applicants for a franchise shall submit to the Grantor written
applications utilizing the standardized format provided by the Grantor,
at the time and place designated by the Grantor for accepting applications,
and including the application fees designated by Grantor.
[Ord. #89-07]
All franchise applications when filed shall be available for
public inspection at places designated by the Grantor. No later than
ninety (90) days after the final date for filing applications, one
or more public hearings shall be held on the applications. A decision
shall be made by the Grantor not later than ninety (90) days after
the conclusion of all such public hearings based upon an evaluation
of the application(s), the hearings, and other information that the
Grantor may deem relevant. Grantor may grant one (1) or more franchises,
or may decline to grant any franchise.
[Ord. #89-07]
a.
Transfer of Franchise. Any franchise granted hereunder shall be a
privilege to be held for the benefit of the public. Said franchise
cannot in any event be sold, transferred, leased, assigned or disposed
of, including but not limited to, by forced or voluntary sale, merger,
consolidation, receivership, or other means without the prior written
consent of the Grantor, and then only under such reasonable conditions
as the Grantor may establish, except that Grantee may transfer the
franchise to a wholly-owned subsidiary of the Grantee without such
prior consent. Such consent as required by the Grantor shall be given
or denied no later than ninety (90) days following any request, and
shall not be unreasonably withheld. Grantor retains the right of first
refusal to purchase the system at fair market value in the event of
any proposed sale, transfer, lease, assignment or any other disposition
of the franchise.
b.
Ownership or Control. The Grantee shall promptly notify in writing
the Grantor of any 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. A rebuttable presumption
that a transfer of control has occurred shall arise upon the acquisition
or transfer by any person or group of persons of ten (10%) percent
or more of the beneficial ownership interest of the Grantee. Every
change, transfer, or acquisition of control of the Grantee shall make
the franchise subject to cancellation unless and until the Grantor
shall have consented in writing thereto, which consent shall be given
or denied no later than ninety (90) days following any request, and
shall not be unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer or acquisition of
control, the Grantor may inquire into the qualifications of the prospective
controlling party, and the Grantee shall assist the Grantor in any
such inquiry.
In seeking the Grantor's consent to any change in ownership
or control, the Grantee shall have the responsibility:
1.
To show to the satisfaction of the Grantor whether the proposed purchaser,
transferee, or assignee (the "proposed transferee"), which in the
case of a corporation, shall include all directors and all persons
having a legal or equitable interest in five (5%) percent or more
of its voting stock:
(a)
Has ever been convicted or held liable for acts involving moral
turpitude including, but not limited to any violation of Federal,
State or local law or regulations, or is presently under an indictment,
investigation or complaint charging such acts;
(b)
Has ever had a judgment in an action for fraud, deceit or misrepresentation
entered against it, her, him, or them by any court of competent jurisdiction;
or
(c)
Has pending any legal claim, lawsuit or administrative proceeding
arising out of or involving a cable system.
2.
To establish, to the satisfaction of the Grantor, the financial solvency
of the proposed transferee by submitting all current financial data
for the proposed transferee which the Grantee was required to submit
in its franchise application, and such other data as the Grantor may
request. Financial statements shall be audited, certified and qualified
by a Certified Public Accountant.
3.
To establish to the satisfaction of the Grantor that the financial
and technical capability of the proposed transferee is such as shall
enable it to maintain and operate the cable system for the remaining
term of the franchise under the existing franchise terms.
c.
The Grantor agrees that any financial institution having a pledge
of the 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 Grantor that it or its designee satisfactory to the
Grantor shall take control and operate the Cable Communications System,
in the event of a Grantee default in its financial obligations. Further,
said financial institution shall also submit a plan for such operation
that will insure continued service and compliance with all franchise
requirements 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 (1) year unless extended
by the Grantor in its discretion and during said period of time it
shall have the right to petition the Grantor to transfer the franchise
to another Grantee. If the Grantor finds that such transfer after
considering the legal, financial, character, technical and other public
interest qualities of the applicant are satisfactory, the Grantor
shall transfer and assign the rights and obligations of such franchise
as in the public interest. The consent of the Grantor to such transfer
shall be given or denied no less than ninety (90) days after any request,
and shall not be unreasonably withheld.
d.
The consent or approval of the Grantor to any transfer by the Grantee
shall not constitute a waiver or release of the rights of the Grantor
in and to the streets, and any transfer shall by its terms, be expressly
subject to the terms and conditions of any franchise.
e.
In the absence of extraordinary circumstances, the Grantor shall
not approve any transfer or assignment of the franchise prior to completion
of initial construction of the cable system.
f.
In no event shall a transfer of ownership or control be approved
without the successor in interest becoming a signatory to the Franchise
Agreement.
[Ord. #89-07]
Franchise renewal shall be as prescribed by applicable law.
[Ord. #89-07]
In accepting a franchise, the Grantee acknowledges that its
rights hereunder are subject to the police powers of the Grantor 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 Grantor pursuant to such power.
Any conflict between the provisions of this chapter and any
lawful exercise of the Grantor'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
any Cable Communications System franchise which contains provisions
inconsistent with this chapter shall prevail only if upon such exercise
the Grantor finds an emergency exists constituting a danger to health,
safety, property or general welfare or such exercise is mandated by
law.
[Ord. #89-07]
a.
Annual Franchise Payment. A Grantee of a franchise hereunder shall
pay to the Grantor an annual fee in an amount as designated in the
Franchise Agreement. Such payment shall commence as of the effective
date of the franchise or any renewal date. The Grantor, on an annual
basis, shall be furnished a statement within sixty (60) days of the
close of the calendar year, audited and certified by an independent
Certified Public Accountant, reflecting the total amounts of gross
receipts and all payments, deductions and computations for the period
covered by the payment. Upon thirty (30) days prior written notice,
Grantor shall have the right to conduct an independent audit of Grantee's
records, in accordance with Generally Accepted Accounting Procedures,
and if such audit indicates a franchise fee under-payment of two (2%)
percent or more, the Grantee shall assume all reasonable costs of
such an audit.
b.
Acceptance by Grantor. No acceptance of any payment by the Grantor
shall be construed as a release or as an accord and satisfaction of
any claim the Grantor 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 Grantee.
c.
Failure to Make Required Payment. In the event that any franchise
payment or recomputed amount is not made on or before the dates specified
herein, Grantee shall pay as additional compensation:
1.
An interest charge, computed from such due date, at an annual rate
equal to the average rate of return on invested funds of the City
during the period for which payment was due.
2.
If the payment is late by forty-five (45) days or more, a sum of
money equal to five (5%) percent of the amount due in order to defray
those additional expenses and costs incurred by the Grantor by reason
of delinquent payment.
d.
Franchise fee payments shall be made in accordance with the schedule
indicated in the Franchise Agreement.
e.
Any Grantee "pass through" or itemization of franchise fee costs
on subscribers' bills shall be in accordance with Federal law.
[Ord. #89-07]
a.
Grounds for Revocation. If the Grantee has been given due notice
and a reasonable opportunity to cure, the Grantor 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 under this chapter and a material
breach of the franchise:
1.
If the Grantee shall default in the performance of any of its material obligations under this chapter or under such documents, agreements and other terms and provisions entered into by and between the Grantor and the Grantee, subject to the provisions of subsection 6-13.3.
2.
If the Grantee should fail to provide or maintain in full force and
effect, the liability and indemnification coverages or the security
fund or bonds as required herein.
3.
If any court of competent jurisdiction, or any Federal or State regulatory
body by rules, decisions or other action determines that any material
provision of the franchise documents, including this chapter, the
Franchise Agreement and Grantee's proposal is invalid or unenforceable
prior to the commencement of initial system construction.
4.
If the Grantee ceases to provide all services for any reason within
the control of the Grantee over the Cable Communications System.
5.
If the Grantee willfully violates any of the material provisions
of this chapter or the Franchise Agreement or if found to have practiced
any fraud or deceit upon the Grantor.
6.
If the Grantee becomes insolvent, or upon listing of an order for
relief in favor of Grantee in a bankruptcy proceeding.
b.
Procedure Prior to Revocation.
1.
The Grantor may make written demand that the Grantee comply with
any such requirement, limitation, term, condition, rule or regulation
or correct any action deemed cause for revocation. In the event the
stated violation is not reasonably curable within sixty (60) days,
the franchise shall not be terminated or revoked, or damages assessed,
if the Grantee provides within the said sixty (60) days a plan, reasonably
satisfactory to the Grantor, to remedy the violation. If Grantee fails
to provide such a plan within the said sixty (60) day period, the
Grantor may place its request for termination of the franchise upon
a regular Council meeting agenda. The Grantor shall cause notice to
be served upon such Grantee, at least twenty (20) days prior to the
date of such 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 at least once, ten (10) days before such meeting
in a newspaper of general circulation within the franchise area.
2.
The Grantor shall hear any persons interested therein, and shall
determine, within sixty (60) days, based upon the preponderance of
the evidence, whether the Grantee has committed a material breach
of this chapter or the Franchise Agreement, and, if so, whether such
breach was willful.
3.
If the Grantor determines that the Grantee has willfully committed
a material breach, then the Grantor may, by resolution, declare that
the franchise of such Grantee shall be terminated and security fund
and bonds forfeited, subject to Grantee's rights of judicial review,
or the Grantor may, at its option and if the material breach is capable
of being cured by the Grantee, direct the Grantee to take appropriate
remedial action within such time and manner and upon such terms and
conditions as the Grantor shall determine are reasonable under the
circumstances.
[Ord. #89-07]
a.
Disposition of Facilities. In the event a franchise expires, is revoked,
or otherwise terminated, the Grantor may order the removal of the
above-ground system facilities from the franchise area within a reasonable
period of time as determined by the Grantor or require the original
Grantee to maintain and operate its cable system for a period not
to exceed twenty-four (24) months as indicated in paragraph d below.
b.
Restoration of Property. In removing its plant, structures, and equipment,
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 condition as that prevailing prior to the Grantee's removal
of its equipment without affecting the electrical or telephone cable
wires, or attachments. The liability, indemnity and insurance, and
the security fund and bonds provided shall continue in full force
and effect during the period of removal and until full compliance
by the Grantee with the terms and conditions of this section.
c.
Restoration by Grantor, Reimbursement of Costs. In the event of a
failure by the Grantee to complete any work required by paragraph
a above and/or paragraph b above, or any other work required by Grantor
by law or ordinance, within ninety (90) days after receipt of written
notice, and to the reasonable satisfaction of the Grantor, the Grantor
may cause such work to be done and the Grantee shall reimburse the
Grantor the cost thereof within thirty (30) days after receipt of
an itemized list of such costs or the Grantor may recover such costs
through the security fund or bonds provided by Grantee. The Grantor
shall be permitted to seek legal and equitable relief to enforce the
provisions of this section.
d.
Extended Operation. Upon either the expiration or revocation of a
franchise, the Grantor may require the Grantee to continue to operate
the Cable Communications System for a defined period of time not to
exceed twenty-four (24) months from the date of such expiration or
revocation. 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 Agreement and to
provide the regular cable service and any of the other services that
may be provided at that time. The Grantor shall be permitted to seek
legal and equitable relief to enforce the provisions of this section.
e.
Rights Not Affected. The termination and forfeiture of any franchise
shall in no way affect any of the rights of the Grantor or the Grantee
under any provision of law.
[Ord. #89-07]
a.
Any franchise granted shall, at the option of the Grantor, 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 the Grantee 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 an agreement duly approved by the Court having
jurisdiction on the premises, whereby such receivers or trustees assume
and agree to be bound by all the terms, provisions and limitations
of the Franchise Agreement.
b.
In the case of a foreclosure or other involuntary sale of the plant,
property and equipment of the Grantee, or any part thereof, the Grantor
may serve notice of termination upon the Grantee and to the purchaser
at such sale, in which event the franchise and rights and privileges
of the Grantee hereunder shall cease and terminate thirty (30) days
after service of such notice, unless:
[Ord. #89-07]
For either a new franchise award, franchise renewal or transfer,
costs to be borne by the Grantee that receives the new franchise award,
renewal or transfer, shall include, but shall not be limited to, all
costs of publications of notices prior to any public meeting provided
for pursuant to a franchise, development and publication of relevant
ordinances and Franchise Agreements, and any cost not covered by the
application fees, incurred by the Grantor in its study, preparation
of proposal solicitation documents, evaluation of all applications,
including, but not limited to consultant and attorney fees.
