A. Purpose: The purpose the Chapter is to specify requirements for the establishment, construction, operation, and maintenance of cable television in the City pursuant to chapter 364, Code of Iowa and applicable Federal law. If a new applicant submits a proposal acceptable to the City Council, meets the requirements of this Chapter and those of the FCC, and receives a majority of the votes cast in a franchise election, the City may then proceed to enter into a nonexclusive franchise agreement with such prospective grantee, subject to the provisions of this Chapter. If the incumbent operator submits a proposal acceptable under the terms of the Cable Act of 1992 as amended, and meets the requirements of the FCC, the City shall proceed to fulfill its obligations under section 626 of the Cable Act of 1992.
B. Length Of Franchise: The term of a franchise and all rights, privileges, obligations, and restrictions pertaining thereto shall be determined by Council from the effective date of such franchise or the effective date of any transfer or assignment thereof in accordance with subsection 7-4-7E of this Chapter. The term of agreement will be specified in the franchise agreement. Such term shall not exceed fifteen (15) years. The City shall award a nonexclusive franchise to construct, erect, operate, and maintain in, upon, along, across, above, over and under the streets, alleys, public ways, and public places now laid out or dedicated, and all extensions thereof and additions thereto in the City, poles, wires, cables, underground conduits, manholes, and other conductors and fixtures necessary for the operation and maintenance in the City of a cable system, and to furnish and to sell service from such system to the inhabitants of the City pursuant to the terms of this Chapter.
C. Significance Of Franchise:
1. Franchise Nonexclusive: Any franchise granted hereunder by the City shall not be exclusive and the City reserves the right to grant a similar franchise to any person at any time.
2. Franchise Amendable: The scope of any franchise granted hereunder shall be deemed amendable from time to time to allow the grantee to innovate and implement new services and developments by mutual agreement.
3. Privileges Must Be Specified: No privilege of exemption shall be inferred from the granting of any franchise, unless it is specifically prescribed.
4. Authority Granted: Any franchise granted hereunder shall give to the grantee the right and privilege to construct, erect, operate, modify and maintain, in, upon, along, above, over and under streets, as defined in Section 7-4-2 of this Chapter, which have been or may hereafter be dedicated and open to public use in the City, towers, antennas, poles, cables, electronic equipment, and other network appurtenances necessary for the operation of a cable television system in the City, subject to the requirements of this Chapter.
5. Subject To Other Regulatory Agencies Rules And Regulations: The grantee shall at all times, during the life of any franchise granted hereunder, be subject to all lawful exercise of the police power by the City and other duly authorized regulatory State and Federal bodies and shall comply with any and all ordinances which the City has adopted or shall adopt applying to the public in general.
6. Pole Use Agreements Required: Any franchise granted hereunder shall not relieve the grantee of any obligation involved in obtaining pole or conduit-use agreements from the gas, electric and the telephone companies or others maintaining poles or conduits in the streets of the City, whenever the grantee finds it necessary to make use of said poles or conduits.
D. Rights Reserved To City:
1. Ordinance Revisions: Any franchise granted under this Chapter, is hereby made subject to any revisions of this Chapter and the general ordinances of the City; provided, that such revisions do not materially alter or impair the obligations of the grantee set forth in any franchise agreement.
2. No Impairment Of City's Rights: Nothing herein shall be deemed or construed to impair or affect in any way to any extent the right of the City to acquire the property of the grantee through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted and nothing shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the City's right to eminent domain.
3. Grantee Agrees To City's Rights: The City reserves every right and power which is required to be reserved or provided by an ordinance of the City, and the grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of such rights or powers which have been or will be enacted or established, subject to provisions of subsection D1 above.
4. Powers Of City: Neither the granting of any franchise nor any provision governing the franchise shall constitute a waiver or bar to the exercise of any governmental right or power of the City.
5. City's Transfer Of Functions: Any administrative right or power in or administrative duty imposed upon any elected official, officer, employee, department or board of the City shall be subject to delegation by the City to any other elected official, officer, employee or department.
6. City's Right Of Inspection: The City reserves the right, during the life of any franchise granted hereunder, to inspect all construction or installation work performed, subject to the provisions of this Chapter and to perform network measurements to ensure compliance with the terms of this Chapter.
7. City's Right Of Network Installation: The City reserves the right during the life of any franchise granted hereunder to install and maintain for a reasonable charge upon or in the poles and conduits of the grantee any wire and pole fixtures necessary for Municipal networks on the condition that such installation and maintenance thereof does not interfere with the operation of the grantee. Provided, however, that grantee agrees that such compensation or charge shall not exceed those paid by it to public utilities pursuant to the applicable pole attachment agreement or other authorization relating to the service area.
E. Application For Franchise: No franchise may be granted unless the applicant has successfully completed the application procedure in accordance with filing instructions promulgated by the City:
1. Filing Fee: Payment of a nonrefundable filing fee to the City of one hundred dollars ($100.00), which sum shall be due and payable at the time with the submission of the application.
2. Content: All applicants must complete an application which shall include, but not be limited to, the following:
a. Name And Address Of Applicant: The name and business address of the applicant, date of application, and signature of applicant or appropriate corporate officers.
b. Description Of Proposed Operation: A general description of the applicant's proposed operation, including but not limited to, business hours, operating staff, maintenance procedures beyond those required in this Chapter, and management and marketing staff complement and procedures.
c. Signal Carriage: A statement of the television and radio services to be provided, including both off-the-air and locally originated signals.
d. Special Services: A statement setting forth a description of the automated services proposed as well as a description of the production facilities to be made available by the grantee for the governmental and educational channels required to be made available by the provisions of this Chapter.
e. Corporate Organization: A statement detailing the corporation organization of the applicant, if any, including the names and addresses of its officers and directors and the number of shares held by each officer and director.
f. Stockholders: A statement identifying the number of authorized outstanding shares of applicant's stock including a current list of the names and current addresses of its shareholders holding five percent (5%) or more of the applicant's outstanding stock.
g. Intra-Company Relationships: A statement describing all intra-company relationships of the applicant, including parent, subsidiary or affiliated companies.
h. Agreements And Understandings: A statement setting forth all agreements and understandings, whether written or oral, existing between the applicant and any other person with respect to any franchise awarded hereunder and the conduct of the operation thereof existing at the time of proposal submittal.
i. Financial Statement: A copy of the financial statements for the two (2) previous fiscal years.
j. Financial Projection: A five (5) year operations pro forma which shall include the initial and continuing plant investment, annual profit and loss statements detailing income and expenses, annual balance sheets, and annual levels of subscriber penetration. Costs and revenues anticipated for voluntary services shall, if presented, be incorporated in the pro forma as required in this Chapter, but shall be separately identified in the pro forma.
k. Financial Support: Suitable written evidence from a recognized financing institution, addressed to both applicant's financial ability and planned operation have been analyzed by the institution and that the financing institution is prepared to make the required funds available to applicant if it is awarded a franchise. If the planned operation is to be internally financed, a board resolution shall be supplied authorizing the obtainment and expenditure of such funds as are required to construct, install and operate the cable television system contemplated hereunder.
l. Construction Timetable: A description of system construction, including the timetable for provision and extension of service to different parts of the City.
m. Technical Description: A technical description of the type of system proposed by the applicant, including but not limited to, system configuration, (i.e. hub, dual cable), system capacity, two-way capability, etc.
n. Existing Franchises: A statement of existing franchises held by the applicant indicating when the franchises were issued and when the systems were constructed and the present state of the system in each respective governmental unit, together with the name and address and phone number of a responsible governmental official knowledgeable of the applicant.
o. Convictions: A statement as to whether the applicant or any of it officers or directors or holders of five percent (5%) or more of its voting stock has in the past ten (10) years been convicted of or has any charges pending for any crime other than a routine traffic offense and the disposition of each such case.
p. Operating Experience: A statement detailing the prior cable television experience of the applicant, including that of the applicant's officers, management and staff to be associated, where known, with the proposed franchise.
q. Supplementation To Applications: The City reserves the right to require such supplementary, additional or other information that the City deems reasonably necessary for its determinations. Such modifications, deletions, additions or amendments to the application shall be considered only if specifically requested by the City.
F. Acceptance And Effective Date Of Franchise:
1. Franchise Acceptance; Procedures: Any franchise awarded hereunder and the rights, privileges and authority granted thereby shall take effect and be in force from and after the award thereof; provided, that the grantee shall file with the City the following:
a. A statement by the grantee of the unconditional acceptance of the franchise.
b. A certificate of insurance as set forth in Section 7-4-9 of this Chapter.
c. Reimbursement to the City for the costs of publication of the franchise ordinance and the holding of the election connected therewith, if necessary.
2. Grantee To Have No Recourse: The grantee shall have no monetary recourse whatsoever against the City for any loss, cost, expense, or damage arising out of any provision or requirement of this Chapter or its regulation or from the City's exercise of its authority to grant additional franchises hereunder. This shall not include negligent acts of the City, it agents or employees, which are performed outside the regulatory or franchise awarding authority hereunder.
3. Acceptance Of Power And Authority Of City: The grantee expressly acknowledges that in accepting any franchise awarded hereunder, it has relied upon its own investigation and understanding of the power and authority of the City to grant this franchise.
4. Inducements Not Offered: The grantee, by acceptance of any franchise awarded hereunder, acknowledges that it has not been induced to enter into this franchise by any understanding or promise or other statement, whether verbal or written, by or in behalf of the City concerning any term or condition of this franchise that is not included in this Chapter. (Ord. 96-1, 2-5-1996)
5. Grantee Accepts Terms Of Franchise: The grantee acknowledges by the acceptance of the franchise and the terms herein and in this Chapter that it has carefully read said terms and conditions and it is willing to and does accept all other obligations of such terms and conditions and further agrees that it will not claim that any provision of this Chapter as adopted, or any franchise granted hereunder, is unreasonable or arbitrary. (Ord. 96-3, 5-6-1996)
6. Incorporation Of Proposals: The grantee, by the acceptance of any franchise awarded hereunder, agrees that the matters contained in the grantee's application for franchise and as stated in oral presentations, except as inconsistent with the FCC rules and regulations, laws or ordinances, shall be incorporated into the franchise as though set out verbatim.
7. Franchise Renewal: When the grantor approves a franchise renewal, the grantee shall accept the renewal franchise under the procedures set out in this subsection F. (Ord. 96-1, 2-5-1996)