A. Grant.
(1) In the event that grantor shall grant to a grantee a nonexclusive franchise to construct, operate, maintain, and reconstruct a cable communications system within the City, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system as required by the provisions of this chapter and any franchise agreement. The franchise agreement or grant ordinance shall include those provisions of the grantee's application for franchise that are finally negotiated and accepted by the grantor and grantee. While the City reserves the right to grant a similar franchise to additional cable communication systems within the franchise territory at any time, in the event that a franchise is granted with terms that the grantee reasonably deems more favorable than those set out in its franchise agreement with the grantor, the terms in grantee's franchise agreement shall be automatically modified to include the more favorable provisions, grantee shall notify grantor of such modification within 10 days. If grantor does not agree that the subject terms are more favorable than those set out in the grantee's franchise agreement, the grantor may ask the grantee to justify grantee's modification.
(2) Any franchise granted is hereby made subject to the general ordinance provisions now in effect or hereafter 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.
B. Use of public streets and ways. For the purpose of operating and maintaining a cable communications system in the City, the grantee may erect, install, construct, repair, replace, reconstruct, and remain 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 and appurtenant to the operation of the cable communications system and in accordance with Chapter 600, Zoning.
C. Duration. The term of any franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be as specified in the franchise agreement. The effective date of the franchise shall be 30 days after acceptance and adoption of the franchise proposal through ordinance or resolution by Council. The grantee must file by the effective date in the office of the City Clerk, a written acceptance of the franchise, or the franchise shall be null and void.
D. Transfer of ownership or control.
(1) Transfer of franchise. Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to by forced or voluntary sale, merger, consolidation, or receivership, without the prior consent of the grantor, and then only under such conditions as the grantor may reasonably establish. Such prior consent shall not be unreasonably withheld. Prior consent shall not be necessary unless the sale, transfer, lease or assignment results in a change of management or actual working control of the cable system. If any transfer of the franchise occurs without the prior consent of the grantor, the franchise may, at grantor's sole option, be terminated in accordance with § 166-108B.
(2) Ownership or control. The grantee shall promptly notify the grantor of any pending change in, or 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 acquisition or accumulation by any person or group of persons of 10% of the voting shares of the grantee. Every change, transfer, or acquisition of control of the grantee shall make the franchise subject to cancellation unless and until the grantor shall have consented thereto, which consent shall not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer or acquisition control, the grantor may inquire into the qualification of the prospective controlling party, and the grantee shall assist the grantor in any such inquiry.
(3) In seeking the grantor's consent to any change in ownership or control, the grantee shall have the responsibility:
(a) To show to the satisfaction of the grantor whether the proposed purchaser, transferee, or assignee (the proposed transferee), which in the case of a corporation, shall include all officers, directors, employees and all persons having a legal or equitable interest in 5% or more of its voting stock, or any of the proposed transferee's principals:
[1] Has ever been convicted or held liable for acts involving moral turpitude (including, but not limited to any federal or state agency, or violation of any tax or securities law), or is presently under an indictment, investigation or complaint charging such acts.
[2] Has ever had a judgment in an action for fraud, deceit or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction.
[3] Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving a cable system.
[4] Has ever filed or been declared bankrupt, or been associated with any cable company that has filed or been declared bankrupt.
(b) To establish, to the satisfaction of the grantor, the financial solvency of the proposed transferee by submitting all current financial data for the proposed transferee which the grantor was required to submit in its franchise application, and such other data as the grantor may request. Financial statements shall be audited, certified and qualified by an independent certified public accountant.
(c) To establish to the satisfaction of the grantor that the financial standing of the proposed transferee is such as shall enable it to maintain and operate the cable system for the remaining term of the franchise.
(d) To provide grantor with a list of municipalities currently served or which have been served in the past, with cable service by the proposed transferee.
(4) The grantee shall require that any financial institution or person having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall, as a material condition of such advance of money, assume the duty to reasonably notify the grantor that it or its designee, satisfactory to the grantor, intends to take control and operate the cable television system. Further, said financial institution or person shall also agree to submit a plan for such operation that will insure continued service and compliance with all franchise obligations during the term the financial institution or person exercises control over the system. Such financial institution or person shall not exercise control over the system for a period exceeding one year unless extended by the grantor. In its discretion and during said period of time, it shall have the right to petition the grantor to transfer franchise to another grantee. If the grantor finds that the legal, financial, character, technical and other public interest qualities of the applicant are satisfactory, the grantor may transfer and assign the rights and obligations of such franchise as in the public interest. The consent of the grantor to such transfer shall not be unreasonably withheld.
(5) The consent or approval of the grantor to any transfer of the grantee shall not constitute a waiver or release of the rights of the grantor in and to the streets, and any transfer shall by its terms, be expressly subordinate to the terms and conditions of this franchise.
(6) In no event shall a transfer of ownership or control be approved without successor in interest becoming a signatory to the franchise agreement.
E. Police powers.
(1) In accepting this franchise, the grantee acknowledges that its rights hereunder are subject to the police powers of the City to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and Parts enacted by the City pursuant to such power.
(2) Any conflict between the provisions of this franchise and any other present or future lawful exercise of the grantor'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 grantee or cable communications systems which contains provisions inconsistent with this franchise shall prevail only if, upon such exercise, an emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law.
F. Franchise fee.
(1) Annual franchise payment. A grantee of a franchise hereunder shall pay to the grantor an annual fee of 5% of the annual gross revenues. In the event of a dispute, the grantor, if it so requests, shall be furnished a statement of said payment, audited and qualified by an independent certified public accountant, reflecting the total amounts of annual gross revenues and the computations for the period covered by the payment. In the event of a material discrepancy between the grantee's payment and the amount determined by the CPA to be due, the cost of this audited statement shall be borne by the grantee. Absent such material discrepancy, the cost of this audited statement shall be borne by the grantor.
(2) Acceptance by grantor. Acceptance of any payment toward the franchise fee by the grantor shall not waive the grantor's right to seek additional sums payable under the franchise agreement.
(3) Failure to make required payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, grantee shall pay liquidated damage as specified in § 166-108, Franchise violations.
(4) Payments due the grantor under this subsection shall be computed quarterly, for the preceding quarter, as of March 31, June 30, September 30 and December 31. Each quarterly payment shall be due and payable no later than 30 days after the dates listed in the previous sentence. Each payment shall be accompanied by a brief report showing the basis for the computation and such other relevant facts as may be required by the grantor.
G. Forfeiture or revocation. The grantor 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 and the franchise grant:
(1) Acts justifying revocation.
(a) If the grantee should default in the performance of any of its material obligations under the franchise agreement.
(b) If the grantee's quality of service and response to subscriber complaints has demonstrated a continuing, willful pattern of inadequacy, which has not been corrected by the grantee within a reasonable period of time after due notice by grantor.
(c) If the grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverage or the construction performance bond as required herein.
(d) If the grantee should materially violate any orders or rulings of any regulatory body having jurisdiction over the grantee relative to this franchise unless said order or ruling is subject to appeal and the grantee evidences its good faith intent to seek such appeal.
(e) If the grantee practices any fraud or deceit upon the grantor.
(f) The grantee's construction schedule is delayed for more than six months later than the schedule contained in the franchise agreement without reasonable cause and for reasons within the grantee's control.
(g) The grantee is adjudged bankrupt.
(2) Procedure prior to revocation.
(a) The grantor shall make written demand that the grantee do so 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 grantor may place its request for termination of the franchise upon a regular Council meeting agenda. The grantor shall cause a written notice to be served upon such grantee, and shall publish notice thereof at least 10 days before such meeting in a newspaper of general circulation within the City.
(b) The Council shall hear any persons interested therein, and shall determine, in its discretion, whether or not any failure, refusal or neglect by the grantee was with just cause.
(c) If such failure, refusal or neglect by the grantee was with just cause, the Council shall direct the grantee to comply within such time and manner and upon such terms and conditions as are reasonable.
(d) If the Council shall determine such failure, refusal or neglect by the grantee was without just cause, then the Council may, by resolution, declare that the franchise of such grantee shall be terminated and bond forfeited unless there be compliance by the grantee within such reasonable period as the Council may fix.
(e) In addition to this section, the grantee shall not be precluded from seeking due process under any other procedures set forth in the franchise agreement.
H. Requirements of post-termination.
(1) Disposition of facilities. In the event a franchise expires, is finally revoked or otherwise mutually terminated, the grantor may order the removal of the aerial plant and exposed apertures facilities from the City within six months from the end of the franchise agreement.
(2) Restoration of property. In removing its aerial plant and apertures, the grantee shall leave all public ways and places in as good condition as that prevailing prior to the grantee's removal. The liability, indemnity and insurance as provided herein and the construction performance and payment bonds provided therein 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 subsection and this chapter.
I. Receivership and foreclosure.
(1) The franchise herein granted shall, at the option of the grantor, 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, a 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:
(a) Such receivers 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.
(b) Such receivers or trustees shall, within said 120 days, execute an agreement duly approved by the Court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise herein granted.
(2) 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 this franchise, the grantor may serve notice of termination upon the grantee and the successful bidder at such sale, in which event the franchise herein granted and all rights and privileges of the grantee hereunder shall cease and terminate 30 days after service of such notice, unless:
(a) The grantor shall have approved the transfer of this franchise, as in the manner provided in this chapter.
(b) Such successful bidder shall have covenanted and agreed with the grantor to assume and be bound by all the terms and conditions of this franchise.
J. Franchise required. No cable communications system shall be allowed to occupy or use the streets of the City or be allowed to operate without a franchise in accordance with the provisions of this chapter.