17-6 FRANCHISE TERM; DURATION; TERMINATION; TRANSFER.

No franchise granted by the Town under this chapter may be for a term in excess of fifteen (15) years. (Ord. #23-83, §1)

a. Extension . The Town may extend a franchise for periods of up to five (5) years at a time. Before the Town grants an extension, the operator shall comply with the requirements set forth in paragraph c.

b. Renewal . If the operator applies for a renewal of the franchise, the renewal application must be submitted not less than thirteen (13) months nor more than two (2) years before the franchise expiration date. For a renewal, any terms and conditions of the existing franchise may be renegotiated, including provisions related to changes in technology and in community needs and preferences. If the operator does not apply for a renewal or extension or if renegotiations do not result in a mutually acceptable agreement, the franchise terminates at the expiration of its term without further action by the Town.

c. Information Required . In applying for renewal or extension of a franchise, the operator shall comply with informational and procedural requirements established by the Town. These requirements may include: (1) providing a comprehensive system and services evaluation described in subsection 17-7.1; (2) a survey of subscribers, conducted by the Town at the operator’s expense; (3) consent for performance testing and technical evaluation conducted by the Town or its representative, at the operator’s expense; (4) reimbursement for other costs related to Town’s evaluation of the application, including costs of professional consultants; and (5) other requirements which may be established by the Town at the time a renewal or extension application is submitted. The Town shall provide opportunity for community review and comment including at least one (1) noticed public hearing before granting a renewal or extension.

(Ord. #23-83, §1)

a. Grounds . If the operator fails or refuses to comply with a material requirement of this chapter or the award agreement, the Town may declare the franchise terminated or exercise its other remedies as provided in this chapter. If a franchise is terminated, the operator shall immediately and automatically surrender all rights granted by the franchise and the award agreement.

Grounds for termination under this subsection include:

1. Excessive or repeated failure to meet required standards of construction, operation, technical performance of subscriber service in a timely manner;

2. Failure to maintain the required liability and indemnification coverages or the performance bond;

3. Frequent violation by the operator of an order or ruling from a regulatory entity having jurisdiction over operator, excepting an order or ruling being contested by the operator in judicial or administrative proceedings.

4. Fraud or deceit;

5. Insolvency or bankruptcy;

6. Unauthorized transfer of the franchise or the cable television system;

7. Willful, flagrant, and repeated violation of a franchise requirement.

If the operator is in material breach of the franchise, the Town shall have the right, in addition to other rights it may have, to terminate the franchise.

b. Procedure . Before invoking its rights under this subsection, the Town shall make a written demand that the operator correct the violation or cure the circumstances constituting the breach. If after (30) days the operator has not complied or submitted sufficient evidence of its intent and ability to do so within a reasonable period of time, the Town shall give the

operator notice of the matter to be heard and the time and place of hearing at least ten (10) days before the hearing.

At the termination hearing, the Council shall consider recommendations of Town staff and comments from the operator and interested persons. The Council shall then determine an appropriate course of action for enforcement or termination of the franchise.

(Ord. #23-83, §1)

If the operator holds over after termination or expiration of a franchise without the prior consent of the Town expressed by a resolution, the operator shall pay the franchise fee on the same basis as that existing before expiration or termination, it being understood that acceptance of the franchise fee payments by the Town is not a recognition by the Town of any right of the operator to an extension or renewal of the franchise. The operator shall also pay any applicable penalties.

If the operator continues an unauthorized operation for ninety (90) days after notice from the Town, the operator forfeits to the Town all its gross revenues from the system for the balance of the period the unauthorized operation continues. (Ord. #23-83, §1)

a. Consent of Town Required . A franchise is a privilege to be held in personal trust by the original operator. It may not be sold, transferred, leased, assigned or otherwise disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or other means, without the prior consent of Town and then only under such conditions as the Town prescribes.

1. A transfer may be made only by an instrument in writing, such as a bill of sale. A copy of the proposed instrument shall be filed with the Town at the time the operator applies for Town consent to the transfer. If the transfer is approved, a copy of the executed document shall be filed with the Town not less than thirty (30) days after the transfer is executed.

2. The consent of the Town may not be unreasonably withheld. However, the Town may first evaluate the proposed transferee as to financial responsibility, ability to provide the required level and quality of service and ability to assume the obligations of the franchise. The proposed transferee shall comply with the informational and procedural requirements of the Town for such evaluation including the submission of evidence documenting its financial ability to satisfy the requirements of the franchise. The proposed transferee shall reimburse the Town for the costs of the evaluation, including professional assistance, in accordance with subsection 17-2.5c.

3. If the operator is a corporation, prior approval of the Town is required when there is an actual change in control, or if ownership of twenty-five (25%) percent or more of its voting stock is to be acquired by a person or group of persons acting in concert, none of whom already own twenty-five (25%) percent or more of the voting stock, singly or collectively.

The consent of the Town is not required for transfer of the franchise to a wholly-owned subsidiary of the operator. However, the Town shall continue to regard the operator and its transferee as a single entity for all purposes.

4. The Town may not consent to the sale, transfer, lease or assignment of a franchise until all required system construction is complete, and the system is supplying the required level of service to all subscribers, unless the Town finds that it is in the public interest to consent to such a transfer in order for those requirements to be fulfilled.

5. Upon foreclosure or other judicial sale of all or a substantial part of the system or upon the termination of a lease covering all or a substantial part of the system, the operator shall notify the Town of the fact. The notification shall be considered as notice that a change in control of the operator has occurred. In this case the Town’s approval of the new owner of the system must be obtained as herein required.

other judicial sale of all or a substantial part of the system or upon the termination of a lease covering all or a substantial part of the system, the operator shall notify the Town of the fact. The notification shall be considered as notice that a change in control of the operator has occurred. In this case the Town’s approval of the new owner of the system must be obtained as herein required.

b. Receivership . The Town may cancel a franchise thirty (30) days or later after the appointment of a receiver or trustee to take over and conduct the business of the operator, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless the receivership or trusteeship is vacated prior to the expiration of the thirty (30) days, or unless:

1. Within thirty (30) days after his election or appointment, the receiver or trustee complies with this chapter and remedies all defaults; and

2. Such receiver or trustee, within thirty (30) days, executes an agreement, approved by the court, whereby the receiver or trustee assumes and agrees to be bound by this chapter and the franchise granted to the operator.

c. Express Assumption of Responsibility . A transferee shall expressly assume all obligations of the operator and expressly agree to be bound by this chapter and the award agreement and is required to sign the award agreement.

d. Failure to Comply . Failure to comply with the requirements of this subsection is a material breach of this chapter, subject to the remedies provided for herein.

(Ord. #23-83, §1)

17-6.6 Continuity of Service.

a. Continuity of Service Mandatory . A subscriber is entitled to continue receiving service so long as his financial and other obligations to the operator are met. The operator shall not cease providing full subscriber service before the expiration date set forth in an agreement, license, or franchise in effect at the time this chapter is enacted or before the expiration date set forth in an award agreement entered into under this chapter, unless the Town authorizes cessation or terminates the franchise under the provisions of subsection 17-6.3.

b. Changes in Operation . In the event of a change in operation (due to such factors as modification of the system, acquisition, termination, or expiration of the franchise), the operator shall in good faith make every reasonable effort to ensure that service continues uninterrupted during the transitional period accompanying a change.

c. Extended Service .

1. If the franchise expires or is terminated, the Town may require the operator to continue operation and service for a period not to exceed one (1) year. During the extension the Town may reduce the boundaries of the areas the operator is required to serve by partial termination of the franchise, effective upon at least thirty (30) days written notice to the operator. This chapter applies during a period of extended service.

is terminated, the Town may require the operator to continue operation and service for a period not to exceed one (1) year. During the extension the Town may reduce the boundaries of the areas the operator is required to serve by partial termination of the franchise, effective upon at least thirty (30) days written notice to the operator. This chapter applies during a period of extended service.

d. Cooperation with Successor . In the event of expiration of termination, the operator shall cooperate in good faith with its successor in interest. Cooperation required may include but is not limited to moving the operator’s plant to temporary positions on telephone poles where necessary to enable installation by successor without unnecessary pole make-ready costs. The successor shall reimburse the incumbent operator for direct, actual and verifiable out-of-pocket expenses incurred by the operator in responding to requests for cooperation.

e. Willful Cessation of Service . If the operator fails to provide continuous service on all or part of its system, and Town establishes that the failure is willful and without just cause, the Town may, upon service of notice to the operator, assume operational control of the system. The Town may continue its control until full service is restored under conditions acceptable to the Town or a permanent alternate is found to operate the system. During the period of Town control, revenues from portions of the system under Town control become property of the Town.

Willful cessation of service is a material breach of the franchise and a ground for termination in accordance with the procedures in subsection 17-6.3. The Town may also impose monetary sanctions in accordance with this chapter.

If there are two (2) or more operators authorized to serve or serving the same area and one (1) operator withdraws solely because of financial reasons arising out of an inability to obtain or retain a sufficient share of the market, this action alone is not a willful cessation of service within the meaning of this subsection and does not subject the withdrawing operator to the franchise violation remedies set forth in subsection 17-7.5, including monetary penalties. However, the operator remaining shall continue to provide service as required by its award agreement and may not charge a hook-up fee to a customer formerly served by the withdrawing operator. This provision excusing certain acts from the definition of willful cessation of service does not permit the withdrawal of the only operator then serving the area.

(Ord. #23-83, §1; Ord. #38-84, §1)

a. General Requirements . If a franchise is terminated, cancelled or expires, the Town may order the operator to promptly remove its facilities from the Town within a specified period of time. After such removal, the operator shall promptly restore the street and other areas from which property is removed to its condition before the operator’s use. The operator is not required to remove conduit from underground.

b. Restoration of Property . In removing its plant structures and equipment the operator shall refill at its own expense each excavation made by it and shall leave all public ways and places in as good condition as that prevailing before the operator’s removal of its equipment and appliances without affecting the electrical or telephone cable wires or attachments. The Town shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. The liability, indemnity and insurance and the performance bond shall continue in effect during the period of removal and until full compliance by the operator with the terms and conditions of this paragraph and this chapter.

c. Removal or Restoration by Town; Reimbursement of Costs . If the operator fails to complete the work required by paragraph b. above or any other work required by Town law or ordinance within the time provided and to satisfaction of the Town, the Town may cause the work to be done and the operator shall reimburse the Town for the cost within thirty (30) days after receipt of an itemized list of the costs, or the Town may recover such costs through any security fund or bond provided by the operator.

d. Abandonment of Property . The Town may, upon written application by the operator, approve the abandonment of the operator’s property, in place, under such terms and conditions as the Town prescribes. Upon abandonment of property in place, the operator shall execute, acknowledge and deliver to the Town such instruments as the Town prescribes transferring and conveying the ownership of the property to Town.

(Ord. #23-83, §1)

It is understood that the operator currently providing cable television services to the Town is operating under authority of a

license previously granted by the County Board of Supervisors. This license expires in October, 1986. Nothing in this chapter shall be construed as abridging the term of that license, or as altering the rights and obligations of the parties under it, absent the mutual consent of the present operator and the Town. However, if the present operator enters into a new award agreement with the Town under this chapter before the expiration date of the existing license, the prior license and all rights and obligations of the parties under it terminate upon the effective date of the new award agreement. (Ord. #23-83, §1)