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(A) Any franchise granted under this chapter shall be nonexclusive and for a limited duration.
(B) No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically presented herein.
(C) The grant of a franchise, right or license to use public right-of-way for purposes of providing cable service shall not be construed as a right or license to use such public right-of-way for any other purpose.
(D) Any privilege claimed by grantee in a public right-of-way or any other public property shall be subordinate to any prior or subsequent lawful occupancy or use thereof, or easement therein, by the city or other government entity.
(E) A franchise granted hereunder shall not relieve grantee of any obligation related to obtaining pole space from any department of the city, utility company, or from others maintaining poles in the public right-of-way.
(F) Any right or power in, or duty imposed upon any officer, employee, department, or board of the city shall be subject to transfer by the city to any other officer, employee, department, or board of the city.
(Ord. 4315, passed 11-12-96)
(A) Subject to those restrictions, if any, that are mandated by law, neither the granting of any franchise hereunder nor any of the provisions contained herein shall be construed to prevent the city from granting additional franchises.
(B) There is hereby reserved to the city every right and power which is required to be herein reserved or provided by any ordinance adopted by the city pursuant to the exercise of its police and taxing powers. Grantee, by its acceptance of any franchise, agrees to be bound by all ordinances and regulations of general application now in effect or subsequently enacted (including without limitation those that concern encroachment permits, business licenses, zoning and building) and to comply with any action or requirements of the city in its exercise of such rights or power; provided, however, that such ordinances and regulations shall not materially affect grantee's rights or obligations under the franchise.
(C) Neither the granting of any franchise hereunder, nor any of the provisions contained herein, shall constitute a waiver or bar to the exercise of any governmental right or power of the city, now existing or hereafter granted.
(D) Nothing herein shall be deemed or construed to impair or affect, in any way, or to any extent, the right of the city to acquire the property of grantee through the exercise of the right of eminent domain, at a fair and just value in accordance with applicable law. Nothing herein contained shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the city's right of eminent domain.
(E) The City Council may do all things which are necessary in the exercise of its jurisdiction under this chapter and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The City Manager is authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any grantee under this chapter, in the best interest of the public.
(F) Grantee or any member of the public may appeal a decision of the City Manager to the City Council for hearing and determination within 30 days of receipt of notice of such decision. If no such appeal is made, the City Manager's such decision shall be deemed final. The City Council may accept, reject or modify the decision of the City Manager and may settle or compromise any controversy or cancel any charge arising from the operations of grantee or from any provision of this chapter. Grantee shall have 60 days subsequent to the date of any such action by the City Council (including without limitation a determination of any question of fact) to file an appeal therefrom with an appropriate state or federal court or agency. All actions by the City Council under this division shall be after hearing upon ten days advance written notice to grantee at its address on file with the city. Such actions may be by resolution or minute motion, except that revocation of a franchise shall be by ordinance.
(Ord. 4315, passed 11-12-96)
(A) No franchise shall be transferred, sold, hypothecated, or assigned, nor shall any of the rights or privileges therein be transferred, sold, hypothecated or assigned, either in whole or in part, directly or indirectly, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, except grantee, without the prior consent of the city expressed by resolution of the City Council.
(B) Transfer of a franchise includes but is not limited to any transaction in which control of the franchise is transferred from one person or group of persons to another person or group of persons, or ownership or other interest in grantee or its cable system is transferred from one person or group of persons to another person or group of persons, or the rights and/or obligations held by grantee under the franchise agreement are transferred or assigned to another person or group of persons. In addition, a transfer of the franchise shall be deemed to have occurred upon the transfer on a cumulative basis of ownership or control of 20% of (1) the voting interest of grantee, or (2) the person exercising management authority over grantee.
(C) Grantee shall promptly notify the city in writing of a proposed transfer and shall file with the City Manager an application requesting approval of the proposed transfer ("Transfer Application). The transfer application shall meet the requirements of § 4.04.316 (with the transferee being the applicant), and shall provide complete information on the proposed transaction, including a copy of the bona fide offer, and details on the legal, financial technical and other qualifications of the transferee.
(D) In making a determination on whether to approve the transfer application, the City Council shall consider the legal, financial, technical and other qualifications of the transferee to operate the system, whether the incumbent cable operator is in compliance with its franchise agreement and this chapter and, if not, the candidate transferee's commitment and plan to cure such noncompliance, whether operation by the transferee would adversely affect cable services to subscribers or otherwise be contrary to the public interest, and such other criteria provided for by applicable state and federal law.
(E) A transfer application shall not be granted unless the candidate transferee agrees in writing that it will abide by and accept all terms of this chapter, the franchise agreement, and such other agreements, regulation or restrictions that pertain to the franchise, assume the obligations and liabilities of the previous grantee under the franchise, and assume such other conditions as may be prescribed by the City Council resolution.
(F) Approval by the city of a transfer application does not constitute a waiver or release of any of the rights of the city under this chapter or a franchise agreement, whether arising before or after the date of the transfer.
(Ord. 4315, passed 11-12-96)
(A) The franchise area shall be established by the franchise agreement.
(B) Territory annexed to the city ("annexed territory") which is not within the franchise area of an existing franchise may be added to grantee's franchise pursuant to City Council resolution adopted after conducting a noticed public hearing.
(C) All rights acquired under a franchise or license that is granted by a public entity other than the city ("foreign franchise") shall terminate by operation of law as to annexed territory where grantee of such franchise or license has not commenced installation of a cable system in the annexed territory before the date such annexation becomes effective.
(D) Where grantee of a foreign franchise has commenced installation of a cable system in annexed territory on or before the date such annexation becomes effective, then said grantee may continue to provide cable services to the annexed territory for the balance of the initial term of said franchise (exclusive of any renewal or extension not granted by the city), subject to the terms and conditions then in effect under said franchise, subject to timely payment to the city of all franchise fees paid in connection with such service (or such other fees imposed by the city up to the maximum permitted by law), and subject to compliance with such other terms and conditions that may be imposed by the city respecting such franchise.
(Ord. 4315, passed 11-12-96)
(A) Applications for the grant of a new franchise may be submitted by any person pursuant to the requirements of this chapter. The city may, by advertisement or any other means, solicit applications for a new franchise pursuant to a request for proposal (RFP). The terms and conditions for application made in response to an RFP, including the date by which an application must be received, shall be described therein.
(B) All applications or proposals shall become the sole property of the city. Each application for a new franchise to construct, operate or maintain any cable system in the city shall be filed with the office of the City Clerk and shall be on forms prescribed by the city. The city reserves the right to waive all application formalities where the city determines that the best interests of the city would be served by such waiver. The city may, at its sole discretion, request new or additional proposals.
(C) Unless waived in writing by the city, all applications for a franchise shall minimally contain the following:
(1) The name, address, and telephone number of the applicant;
(2) A detailed statement of the corporation or business entity organization of the applicant, including but not limited to, the following:
(a) The names, residence and business addresses of all officers, directors, and associates of the applicant;
(b) The names, residence and business address of all officers, persons and entities having any share of the ownership of the applicant and the respective ownership share of each person or entity;
(c) The names and address of any parent or subsidiary of the subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to cable systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby;
(d) A detailed description of all previous experience of the applicant in providing cable service or other similar or related communications services;
(e) A detailed and complete financial statement of the applicants certified by an independent certified public accountant, for the fiscal year next preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the City Council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent, in writing, as a recognized lending institution or funding source, to provide whatever capital shall be required by the applicant to construct and operate the proposed cable system in the city, or a statement from an independent certified public accountant, certifying that the applicant has available sufficient free, net and uncommitted cash resources to construct and operate the proposed cable system in the city;
(f) A detailed financial plan (pro forma) describing for each year of the franchise, the projected number of subscribers, rates, all revenues, operating expenses, capital expenditures, depreciation schedules, income statements and a sources and uses of funds statement. All information is to be presented in the format required by the city; and
(g) A statement identifying by place and date, any other cable system franchise(s) awarded to the applicant, its parent or subsidiary; the status of said franchise(s) with respect to completion thereof; the total cost of completion of such franchised cable system(s); and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof;
(3) A detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following:
(a) A detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be serviced;
(b) A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of said classifications, including installation charges and cable service charges;
(c) A detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant;
(d) A copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber; and
(e) A detailed statement setting forth in its entirety any and all agreements and undertakings whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm or corporation which materially relate to, pertain to, or depend upon the application and the granting of the franchise;
(4) A copy of any agreement covering the franchise area, if existing between the applicant and the local telephone and/or electric utilities providing for the use of any facilities of the utility including but not limited to poles, lines or conduits; and
(5) Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the City Council in any applicable request for proposal, or by any applicable provision of law.
(Ord. 4315, passed 11-12-96)
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