[HISTORY: Adopted by the Commissioners of the Town of Dewey Beach 1-12-1991 by Ord. No. 200 (Ch. 10 of the 1984 Code). Amendments noted where applicable.]
When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number.
The Town hereby grants to Franchisee, the right, privilege, and franchise to have, acquire, construct, reconstruct, maintain, use and operate in the Franchise Area a CATV System, and to have, acquire, construct, reconstruct, maintain, use and operate in, over, under and along the present and future streets of the Town as well as other present and future easements and rights-of-way held by Town all necessary or desirable poles, towers, anchors, wires, cables, electronic conductors, underground conduits, manholes and other structures and appurtenances necessary for the construction, maintenance and operation of a CATV System in the Franchise Area.
The right to use and occupy said streets, for the purposes herein set forth shall not be exclusive and the Town reserves the right to grant the use of the streets to any person at any time during the period of this Agreement.
The Franchisee shall, at all times during the life of this Franchise, be subject to all lawful exercise of the police power by the Town. Franchisee shall maintain and operate the CATV System according to all pertinent rules and regulations of the Federal Communications Commission or any successor or other agency having jurisdiction in respect to any matters affecting CATV operations authorized pursuant to this franchise.
[Amended 3-9-1991 by Ord. No. 203]
Initial term. Upon the filing with Town by Franchisee of the written acceptance required herein by § A188-17, this franchise shall be in full force and effect for a term and period of 15 years commencing as of January 1, 1991.
Renewal. Renewal hereof shall be in accordance with the renewal provisions provided by Section 546 of the Act.
The Town hereby grants to Franchisee the authority to contract with Town or any appropriate board or agency thereof or with the holder or owner of any utility franchise in the Town for the use, rental, or lease of its or their poles, underground conduits, and other structures and facilities for the purpose of extending carrying, or laying Franchisee's wires, cables, electronic conductors, and other facilities and appurtenances necessary or desirable for the operation of its CATV System. The Town agrees that any public utility owning or controlling such poles or underground conduits may, without amendment to its franchise, allow, and is encouraged to allow, Franchisee to make such use thereof pursuant to any agreement reached between such utility and Franchise.
The Franchise shall indemnify and hold the Town harmless from any liability, cost, damage and expense of every character, arising out of or in any manner resulting from or contributed to by any wrongful or negligent act or omission of Franchisee, its agents, servants or employees in the installation, maintenance and operation of the CATV System in the Town.
If any action or proceeding is brought against the Town or any of its officers, agents or employees with respect to which payment be sought for claims for damages or penalties as described in Subsection A, Franchisee, upon written notice from Town, shall assume the investigation and defense thereof, including the employment of counsel and the payment of all expenses including court costs. Town shall have the right to employ separate counsel in any such action or proceeding and to participate in the investigation and defense thereof, and Franchisee shall pay the fees and expenses of such separate counsel only if employed with the approval and consent of Franchisee or if representation of both the approval and consent of Franchisee or if representation of both the Franchisee and Town by the same attorney would be inconsistent with accepted canons of professional ethics. Franchisee shall not be liable for any settlement of any such claim, action or proceeding effected without its consent. Town shall give prompt notice to Franchisee of any claim, action or proceeding against it upon which Town may seek payment of damages or penalty by Franchisee hereunder.
The Franchisee shall maintain, and by its acceptance of this franchise specifically agrees that it will maintain throughout the term of this franchise, liability insurance, in which both the Town and the Franchisee shall be named as parties insured in the minimum amounts of:
$1,000,000 for bodily injury or death to any one person with the limit of $1,000,000 for bodily injury or death resulting from any one accident.
$500,000 for property damage resulting from any one accident.
That a certificate or certificates of such insurance shall be submitted to the Town annually on the anniversary date of this ordinance.
Workmen's compensation coverage. The Company shall also maintain in full force and effect throughout the duration of this franchise ordinance sufficient workmen's compensation insurance coverage to adequately and fully protect its agents and employees as required by law.
In case of disturbance of any street, the Franchisee shall, at its own cost and expense and in a manner approved by the Town Building Inspector, replace and restore such street to substantially the same condition as before the work involving such disturbance was done as determined by Town.
If at any time during the period of this franchise the Town shall lawfully elect to alter or change the grade of any street, sidewalk, alley or other public way, the Franchisee, upon reasonable notice by the Town, shall remove or relocate its poles, wires, cables or other fixtures at its own expense.
Before any pole or other fixture is placed in any public ways by the Franchisee, the location and height of each pole and fixture shall be approved by the Town and placed in such manner as not to interfere with the usual traffic on such public way. Town shall not unreasonably withhold any such approval.
The Franchisee shall, on the request of any person holding a building moving permit issued by any governmental authority having jurisdiction to issue such a permit, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same (unless such wires are below the minimum height required by the National Electric Safety Act, or other federal, state or local regulation applicable thereto), and the Franchisee shall have the authority to require such payment in advance. The Franchisee shall be given sufficient advance notice to arrange for such temporary wire changes.
The Franchisee shall have the authority to trim trees upon said overhanging streets, alleys, sidewalks, easements and public way and places of the Town so as to prevent the branches of such trees from coming in contact with the wires and cables of the Franchisee.
Except in cases where only overhead facilities are available, Franchisee shall place its wires or cables underground where the existing wires and cable of utilities are underground.
The Franchisee shall make application with the Town showing all proposed cable routes. The Town commission shall approve said application before construction is started. Such approval shall not be unreasonably withheld.
The Franchisee shall make available for review and inspection by the Town true and correct maps or plats of all existing and proposed installations prior to any installation or any changes in the location of any installation being done.
The Franchisee shall install and maintain its cables and other equipment in accordance with state and local law and regulations of the National Electric Safety Code.
The Franchisee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public.
If the Franchisee shall violate any of the material terms or provisions of this franchise and should the Franchisee continue to violate same for a period of 30 days after the Franchisee shall have been notified in writing by the Town to desist from such violation so specified, then the Town may terminate and cancel this franchise; provided however, that the Town shall not cancel this franchise if the Franchisee is without fault as to be violation; and further provided, that this franchise may not be terminated and canceled until after the Franchisee first has been provided with adequate opportunity to be heard before the Commissioners, and then only by ordinance duly adopted by the Commissioners. It is further provided, however, that should the Franchisee be adjudged as bankrupt then the Town, after 60 days' written notice to the Franchisee, may, if it so desires, terminate and cancel this franchise.
Except as such assignment is to a subsidiary, parent, sole owner or an affiliate of Franchisee, the Franchisee shall not sell, lease or assign this franchise without the prior written approval of the Town which approval will not be unreasonably withheld; provided, however, that this franchise may be assigned by the Franchisee as security for debt without approval by the Town.
As contemplated by the Act, as a cable operator subject to effect competition, Franchisee shall not be subject to rate regulation.
As consideration for the right, privilege, and franchise herein conferred, Franchisee shall pay to Town each year a sum equal to 3% of Franchisee's gross receipts for such year. Payment to the Town for each of the years that this ordinance is in effect shall be made on or before the first day of July each year, based on the fiscal records of the Franchisee for the preceding annual period from June 1 to May 31, with the first of such annual payments to be made on or before the first day of July, 1991, based on the fiscal records of the Franchisee for the portion of the preceding calendar year this ordinance was in effect.
Franchisee shall keep complete and accurate books of accounts and records of its business and operations.
The Town shall have access to all books of accounts and records of Franchisee for ascertaining the correctness of any and all reports to the Town. Access shall be given by Franchisee to Town at all reasonable time to Franchisee's gross receipts, financial, statistical, customer, and subscriber service records relating to the properties and operation of its Cable System within the Town and to all other records and reports required to be kept by Franchise pertaining to operations within the Town.
The Franchisee shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time practicable.
The Franchise shall locate the CATV System towers, head-in location, and office or offices of the System in an area or areas to provide quality pictures and to be consistent with best service to the subscribers.
In the case of any emergency or disaster, the Franchisee shall, upon request of the Town Commission or Mayor, make available its facilities to the Town for emergency use during the emergency or disaster period.
Cables, inside wiring, connectors, converters and related facilities and equipment installed by Franchisee on the premises of a subscriber shall remain the property of Franchisee unless the Franchisee and the subscriber specifically agree otherwise. Upon termination of service to any subscriber, the Franchisee shall promptly remove all its facilities and equipment from the premises of such subscriber upon request of the subscriber and without cost to the subscriber.
The technical standards of the CATV System shall meet or surpass any standards now or hereafter requested by the Federal Communications Commission.
This section shall apply to any application for authorization to provide cable service to an area which, in whole or in part, the Franchisee is authorized to serve under this ordinance. A copy of any such application shall be served by the applicant by registered or certified mail upon the current Franchisee(s). Proof that a copy of the application has been served upon the current Franchisee(s) shall be provided to the Town.
Every application subject to this section shall contain, at a minimum, information demonstrating: (i) the financial capability of the applicant to construct and operate the proposed cable system, including all sources of financing; (ii) the technical and engineering characteristics of the cable system and experience of the applicant; (iii) the construction schedule proposed; (iv) the applicant's familiarity with the needs and interests of the area to be served; (v) the financial feasibility of the proposed cable system, including pro forma financial statements for five years from the date of authorization and the disclosure of all pertinent economic and demographic assumptions; and (vi) such other information as the Town may require.
With regard to the applications subject to this section, the Town may conclude that the public convenience, safety and welfare are best served by granting any or all of such applications or by denying any or all of such applications. The Town's evaluation of any such application shall include a public hearing. The Town may utilize independent consultants knowledgeable of the cable television industry for analysis of any application. In evaluating any such application, the Town shall consider: the applicant's legal, financial, technical, and other qualifications; the adequacy of the proposed cable system; the impact on the public of multiple cable system; the impact on the public of multiple cable system Franchisees serving the Town; the impact on the aesthetics of the franchise area; the economic impact upon private property with in the franchise area; the public need for such franchise, if any; the capability of public right-of-way to accommodate the cable system; the present and future use of the public right-of-way to be used by the cable system; the potential disruption to existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public; the present use of poles and the applicant's proposed use of the poles; and such other matters as the Town may determine to be relevant. Such applicant shall be responsible for paying the cost of any and all consultants, experts, accountants or other persons utilized by the Town to assist the Town in the evaluation of the application. Said costs shall be paid by the applicant prior to final Town action.
The Town shall not grant any overlapping franchise for a cable service on terms or conditions more favorable or less burdensome than those in any existing franchise with the Town.
The Town will consider new applications for cable television franchises each year for a period commencing July 1 and ending on July 31. All such applications shall be filed in July and shall be in conformance with the subject to the provisions of this section.
The Franchisee agrees not to oppose intervention by the Town in any suit or proceeding to which the Franchisee is a part, concerning or involving Franchisee and the Town's right under this franchise.
Within 30 days from the effective date of this ordinance, Franchisee shall file its written acceptance of this ordinance and franchise with the Manager of the Town, or else this ordinance shall be null and void. Upon this written acceptance by Franchisee, this ordinance and franchise shall constitute a contract between the Town and Franchisee and shall be binding upon both.