[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.
A.
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.
B.
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]
A.
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.
B.
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.
A.
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.
B.
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.
C.
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)
$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.
(2)
$500,000 for property damage resulting from any one
accident.
(3)
That a certificate or certificates of such insurance
shall be submitted to the Town annually on the anniversary date of
this ordinance.
D.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
A.
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.
B.
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.
A.
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.
B.
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.
A.
Franchisee shall keep complete and accurate books
of accounts and records of its business and operations.
B.
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.
A.
The Franchisee shall render efficient service, make
repairs promptly and interrupt service only for good cause and for
the shortest time practicable.
B.
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.
C.
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.
D.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
