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DIVISION 2: GRANT OF FRANCHISE
(A) In the event that the city shall grant to the grantee a nonexclusive, revocable for cause as provided herein, franchise to construct, operate and maintain a cable communication system within the city, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system, as regulated by the provisions of this chapter and the franchise agreement. The franchise agreement shall include by reference those provisions of the grantee’s “application for franchise” that are finally negotiated and agreed to by the city and grantee.
(B) The franchise shall be granted under the terms and conditions contained herein, consistent with the city charter and/or other applicable statutory requirements. In the event of conflict between the terms and conditions of this chapter, the franchise agreement, or the terms and conditions on which the city may grant a franchise, the charter and/or statutory requirements shall control.
(C) Any franchise granted by the city is hereby made subject to the applicable general ordinance provisions of the city now in effect and hereinafter made effective. Nothing in the franchise shall be deemed to waive the requirements of the various codes and ordinances of the city regarding permits, fees to be paid or manner of construction.
(D) The franchise territory shall be the entire city for which a franchise is granted under authority of this chapter. The service area shall be the entire territory defined in the franchise agreement.
(Ord. passed 2-16-93)
(A) Public streets and ways. For the purpose of operating and maintaining a cable communications systems in the city, the grantee may erect, construct, repair, replace, reconstruct and/or retain in, on, over, under, upon, across and along the public streets and ways within the city such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the cable communication system; provided however, that the grantee complies with all design, construction, safety and performance provisions contained in this chapter, the franchise agreement and other applicable regulations, including the City Code, as amended.
(B) City facilities. Reserved.
(C) Grantee facilities. No poles shall be erected by the grantee without prior approval of the city with regard to location, height, type and any other pertinent aspect. However, no location of any pole of the grantee shall be a vested right, and such poles shall be removed or modified by the grantee at its own expense whenever the city determines the public convenience would be enhanced thereby. The grantee shall utilize existing poles and conduits, where possible. The city shall have the right, during the life of the franchise, to install and maintain upon the poles owned by the grantee, at fair market value, any wire and pole fixtures that do not reasonably interfere with the cable system operations of the grantee.
(Ord. passed 2-16-93)
(A) Required. No cable communication system shall be allowed to occupy or use the streets of the city or be allowed to operate without a franchise.
(B) Term. The maximum term of any franchise granted pursuant to this chapter shall be 15 years.
(C) Acceptance.
(1) Following approval by the city, any franchise granted pursuant to this chapter, and the rights, privileges and authority granted thereunder, shall take effect and be in force from and after the date on which the grantee accepts, signs and affixes its corporate seal to the franchise agreement, as applicable.
(2) By accepting the franchise, the grantee agrees to be bound by all the terms and conditions contained in this chapter and said franchise. The grantee also agrees to provide all services within the confines of the city by its acceptance of the franchise.
(3) By accepting the franchise, the grantee acknowledges that it does so relying upon its own investigation and understanding of the power and authority of the city in connection with the system and the franchise.
(4) By accepting the franchise, the grantee acknowledges that it has not been induced to enter into the franchise by any understanding or promise or other statement not expressed therein, whether oral or written, concerning any term or condition of the franchise, regardless of whether such statement was made by or on behalf of the city.
(5) By accepting the franchise, the grantee acknowledges that it has carefully read the terms and conditions of the franchise agreement.
(D) Nonexclusive. Any franchise granted hereunder shall be nonexclusive. The city specifically reserves the right to grant at any time such additional franchises containing equivalent standards, terms and conditions to those previously granted hereunder for a cable communications system as it deems appropriate.
(E) Time of the essence. Reserved.
(F) State law governs. In any controversy or dispute under this chapter, the law of the state shall apply to the extent such law has not been superseded or preempted.
(G) Severability. If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction, or by any federal, state or local statute or regulations, such portion shall be deemed a separate, distinct and independent provision and shall be excised as such; and such holding shall not affect the validity of the remaining portions hereof.
(Ord. passed 2-16-93)
(A) Any franchise granted hereunder cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to by force or voluntary sale, receivership or other means, without the prior consent of the city, which consent shall be not be unreasonably withheld, and then under such reasonable conditions as the city may establish.
(B) The grantee shall promptly notify the city of any actual or proposed change in, 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 disposal by the grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of 5% or more at one time of the ownership or controlling interest in the system, or 20% cumulatively over the term of the franchise, of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert.
(C) Every change, transfer or acquisition of control, as defined above, of the grantee shall make the franchise subject to cancellation unless and until the city shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the city may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective controlling party, and the grantee shall assist the city in any such inquiry. Failure to provide all information reasonably requested by the city as part of said inquiry shall be grounds for denial of the proposed change, transfer or acquisition of control.
(D) The city 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 city that it, or its designees satisfactory to the city, will take control and operate the cable television system. Further, said financial institution shall also submit a plan for such operation that will ensure continued service and compliance with all franchise obligations 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 year, unless extended by the city at its discretion, and during said period of time it shall have the right to petition for transfer of the franchise to another grantee. If the city finds that such transfer, after considering the legal, financial, character, technical and other public interest qualifications of the applicant, is satisfactory, the city will transfer and assign the rights and obligations of such franchise as are in the public interest. The consent of the city to such transfer shall not be unreasonably withheld.
(E) The consent or approval of the city to any transfer of the grantee shall not constitute a waiver or release of the rights of the city in and to the streets and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of this chapter and the franchise agreement.
(F) In the absence of extraordinary circumstances, the city will not approve any transfer or assignment of the franchise prior to completion of construction of the proposed system, excluding annexation.
(G) Any approval by the city of transfer of ownership or control shall be contingent upon the prospective controlling party becoming a signatory to the franchise agreement, as provided in § 14-12(C) herein.
(Ord. passed 2-16-93)
(A) Renewal. Upon completion of the term of any franchise granted under this chapter, the city may grant or deny renewal of the franchise of the grantee in accordance with the provisions of the Cable Act. The grantee shall have no property right in the franchise upon the completion of the franchise term.
(B) Police powers.
(1) In accepting the franchise, the grantee acknowledges that its rights hereunder are subject to the powers of the city to adopt and enforce reasonable 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 city pursuant to such power.
(2) Any conflict between the provisions of this chapter or the franchise and any other present or future lawful exercise of the city’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 the grantee or cable communications systems, which contains provisions inconsistent with this chapter shall prevail only if, upon such exercise the city finds an emergency exists constituting a danger to health, safety, property or general welfare and such exercise is mandated by law.
(Ord. passed 2-16-93)
(A) A grantee of any franchise hereunder shall pay to the city an annual fee in an amount as designated in the franchise agreement. The franchise payment shall commence as of the effective date of the franchise. The city shall be furnished an annual statement of said quarterly payments by a certified public accountant, reflecting the total amounts of annual gross revenues and the above charges and computations for the period covered by the payment.
(B) This payment shall be in addition to any other tax or payment owed to the city or other taxing jurisdiction by the grantee.
(C) No acceptance of any payment by the city shall be construed as a release or as an accord and satisfaction of any claim the city may have for further or additional sums payable as a franchise fee under this chapter.
(D) In the event that any undisputed franchise payment is not made on or before the dates specified herein, the grantee shall pay an interest charge, computed from such due date, at the annual rate equal to the commercial prime interest rate in effect upon the due date.
(E) The franchise fee and any other cost or damages assessed shall be payable quarterly to the city finance office, payable to the city. Payment date is the last day of the month following the date in which payment is due.
(F) (1) The city shall have the right upon reasonable notice to inspect the grantee’s income records and the right at the city’s expense to audit and to recompute any amounts determined to be payable under this chapter.
(2) Any undisputed additional amount due to the city as a result of the audit shall be paid within 30 days following written notice to the grantee by the city, which notice shall include a copy of the audit report; provided, that the grantee shall net be required to pay an interest charge in accordance with subsection (D) herein in such an event.
(Ord. passed 2-16-93)
(A) The Council 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 and breach under this chapter or the franchise agreement.
(1) If the grantee shall default in the performance of any of the material obligations under this chapter or under such documents, contracts and other terms and provisions entered into by and between the city and the grantee;
(2) If the grantee shall fail to provide or maintain in full force and effect the liability and indemnification coverage or the performance bond as required herein pursuant to the franchise agreement;
(3) If the grantee’s construction schedule is delayed later than the schedule contained in the franchise agreement, if any, or beyond any extended date set by the City Council;
(4) If the grantee becomes insolvent or unable to pay its debts or is adjudged bankrupt;
(5) If the grantee fails to restore service after 96 consecutive hours of interrupted “system wide” service, except when such service interruption is caused by forces beyond the grantee’s control (including but not limited to subscribers), or when approval of such interruption is obtained from the City Manager or his designee;
(6) If there has been intentional material misrepresentation of fact in the application for or negotiation of the franchise or any extension of renewal thereof.
(B) The grantee shall not be declared at fault or be subject to any sanction under any provision of this chapter in any case in which performance of any such provision is prevented for reasons beyond the grantee’s control. A fault shall not be deemed to be beyond the grantee’s control if committed by a corporation or other business entity in which the grantee holds a controlling interest, whether held directly or indirectly.
(C) Procedure prior to revocation.
(1) The city shall make written demand, by certified mail, return receipt requested, that the grantee comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for revocation. If the failure, refusal or neglect of the grantee continues for a period of 30 days following such written demand, the city shall place its request for revocation of the franchise upon a regular Council meeting agenda. The city shall cause to be served upon the grantee, at least seven days prior to the date of such Council meeting, a written notice of this intent to request such revocation, and the time and place of the meeting, notice of which shall be published by the City Clerk at least twice, seven and 14 days respectively, before such meeting, in a newspaper of general circulation within the city.
(2) The Council shall hear any persons interested therein, including the grantee, and shall determine in its discretion whether or not any failure, refusal or neglect by the grantee was with just cause.
(3) If such failure, refusal or neglect by the grantee was with just cause, as defined by the city, the Council shall direct the grantee to comply within such time and manner and upon such terms and conditions as are reasonable.
(4) If the Council shall determine such failure, refusal or neglect by the grantee was without just cause, then the Council shall, by resolution, declare that the franchise of the grantee shall be revoked, unless there is compliance by the grantee within 90 days.
(D) In the event a franchise is revoked or otherwise terminated, a city may, in its sole discretion, do any of the following:
(1) Purchase the system under the procedures set forth in § 14-20 of this chapter;
(2) Effect a transfer of ownership of the system to another party for good and sufficient consideration, which shall be an amount at least equal to the fair market value of the system under the original grantee’s operation, in accordance with the Cable Act;
(3) Order the removal of all system facilities from the city within a reasonable period of time.
(E) In removing its system facilities, 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 a condition, normal wear and tear excepted, as was prevailing prior to the grantee’s removal of system facilities. 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, insurance and performance bond as provided herein 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 paragraph, this chapter and the franchise agreement is reached.
(F) In the event of a failure by the grantee to complete any work required by §§ 14-11(A), (C) and/or subsection (E) above or any other work required by the city law or ordinance, and upon reasonable notice to the grantee, the city may cause such work to be done and the grantee shall reimburse the city the reasonable costs thereof within 30 days after verification 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.
(G) Upon either the expiration or revocation of a franchise, the city may contract with the grantee to continue to operate the system for a period of six months from the date of such expiration or revocation, or until such time as is mutually agreed upon. The grantee shall, as a subcontractor of the city, continue to operate the cable communications system under the applicable terms and conditions of this chapter. The city shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
(Ord. passed 2-16-93)
(A) The franchise shall, at the option of the city, cease and terminate 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 120 days, or unless:
(1) Such receiver or trustees shall have, within 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 120 days, shall have remedied all defaults under the franchise agreement; and
(2) Such receivers or trustees shall, within said 120 days, execute an agreement, duly approved by the court having jurisdiction of the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provisions and limitations of this chapter and the franchise agreement.
(B) In the case of a foreclosure or other judicial sale of the plant, property and equipment of the grantee or any part thereof, including or excluding the franchise, the city may serve notice of termination upon the grantee and the successful bidder at such sale, in which event the franchise and all rights and privileges of the grantee granted hereunder shall cease and terminate 30 days after service of such notice unless:
(1) The city shall have approved the transfer of the franchise in the manner this chapter provides, 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 the franchise.
(Ord. passed 2-16-93)
The grantee shall be an equal opportunity/affirmative action employer, adhering to all federal, state or municipal laws and regulations related thereto. Unless otherwise required by current or future rules and regulations upon cable communication system operators all copies of which shall be provided the city upon request, the grantee shall comply with the following requirements:
(A) The grantee shall establish and maintain equal opportunity in employment, and no person shall be discriminated against in employment by the grantee because of race, religion, color, sex, national origin, age, physical disability or marital status.
(B) The grantee’s affirmative action plan shall provide that the grantee shall utilize best efforts to achieve a representative work force so that, within three years from the effective date of the granted franchise and throughout the franchise term, the percentage of each minority/sex group within each level of employment reasonably approximates or is equal to percentage levels reflective of those of the municipality’s population. Each level of employment, as used in the preceding sentence, includes the following specific job categories as defined by the Cable Communications Policy Act of 1984:
Officials and managers;
Professionals;
Technicians;
Salespersons;
Office and clerical personnel
Skilled crafts persons;
Semiskilled operatives;
Unskilled laborers; and
Service workers.
(C) Implementation, administration and review of all EEO and affirmative action policies and programs shall be the direct responsibility of the chief executive officer of the cable communications system. All officers, executives, managers, and administrative and supervisory personnel of the grantee shall be directed to participate in the grantee’s affirmative action efforts.
(D) Any significant subcontractor of the grantee or a parent, subsidiary or affiliate of the grantee which does not already have an affirmative action plan which would cover its activities in the city shall submit to the city a plan for its operations on behalf of the grantee, consistent with the spirit of this section.
(E) The grantee shall prepare and maintain records of promotions, demotions, terminations and transfers.
(F) The grantee agrees that if the city establishes an affirmative action goal for the handicapped, the grantee shall make reasonable and good faith efforts to achieve an appropriate goal.
(G) The grantee shall make a good faith effort to construct its Eden office so that it is accessible to the disabled.
(H) The grantee shall make a good faith effort to utilize minority/women business enterprises in construction and purchase contracts and shall prepare an annual report to the city on these efforts.
(Ord. passed 2-16-93)
(A) Local office. The grantee shall maintain within the city a local office and telephone number for the conduct of business related to the franchise during normal business hours. The grantee shall be required to advise the city of such address and telephone numbers and any charges thereof.
(B) Failure of city to enforce franchise, no waiver of the terms thereof. The grantee shall not be excused from complying with any of the terms and conditions of this chapter or the granted franchise by any failure of the city upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions.
(Ord. passed 2-16-93)
The city shall have the right, at its expense, to inspect all construction or installation work performed subject to the provisions of the franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this chapter, the franchise agreement, and other pertinent provisions of the law.
(Ord. passed 2-16-93)
DIVISION 3: REGULATION OF THE FRANCHISE
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