Greenfield Municipal Code Art. III Grant of Franchise

Applicants for a franchise shall submit to grantor written applications utilizing the standardized form provided by grantor, at the time and place designated by grantor for accepting applications, and including the designated application fee. This subsection shall apply to a grantee seeking renewal of a franchise provided, however, that the grantor may waive the requirement to provide any information that is unnecessary due to grantee's status as a renewing franchisee.

(Ord. 322 § 3.01(a), 1986)

An application fee in the sum of twelve hundred dollars which shall be valued in 1986 dollars, and which shall be in the form of cash, certified or cashier's check, or money order, to pay the costs of studying, investigating and otherwise processing such application, and which shall be in consideration thereof and not returnable or refundable in whole or in part except to the extent that such fee exceeds the actual costs incurred by grantor in studying, investigating and otherwise processing the application. Grantee shall also, in addition to the franchise application fee, reimburse the city for the cost of publication of the ordinance within a newspaper of general circulation that complies with the city's general statute requirements.

(Ord. 322 § 3.01 (b), 1986)

In the event that grantor shall grant to grantee a franchise pursuant to this chapter to construct, operate, maintain and reconstruct a cable communications system within the franchise territory, the 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 the franchise agreement.

(Ord. 322 § 3.02, 1986)

Grantor may grant a franchise for all or any defined portion of the city. The service are shall be the entire territory defined in the franchise agreement. The initial service area is that portion of the franchise territory scheduled to receive initial service, as may be stated in the franchise agreement.

(Ord. 322 § 3.03, 1986)

For the purpose of operating and maintaining a cable communications system in the franchise territory, and subject to the provisions of Sections 5.24.380 and 5.24.390, grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the franchise territory 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. Prior to the construction or alteration, however, grantee shall in each case file plans with the appropriate grantor agencies and local utility companies, and comply with Sections 5.24.380 and 5.24.390.

(Ord. 322 § 3.04, 1986)

A. The terms of a franchise agreement and all rights, privileges, obligations and restrictions pertaining thereto shall be seventeen years, commencing on the effective date of the franchise unless terminated sooner as hereinafter provided. The effective date of the franchise shall be the date of adoption of the resolution approving a franchise agreement by grantor. Said resolution shall not be adopted until grantee has signed the franchise agreement.

B. The franchise shall terminate without further action by grantor at the end of the term; provided however, that grantor, at or before the end of the term, retains the exclusive power to grant an extension, or a renewal of the franchise to grantee. Any decision as to renewal shall be made in accordance with Section 5.24.120.

(Ord. 322 § 3.05, 1986)

A franchise granted pursuant to this chapter is nonexclusive. Grantor specifically reserves the right to grant, at any time, such additional franchises for the city as it deems appropriate. Such additional franchise grants shall be enacted with the same or similar franchise agreement terms and conditions insofar as to exclusion of unfair advantages or business conditions.

(Ord. 322 § 3.06, 1986)

A franchise granted hereunder shall be a privilege to be held in personal trust by grantee. It cannot be sold, transferred, leased, assigned or disposed of in Whole or in part, either by forced or involuntary sale or by voluntary sale, merger, consolidation or otherwise, other than to an entity controlling, controlled by or under common control with grantee, without the prior written consent of grantor. Such consent by grantor shall not be unreasonably withheld provided, however, the proposed transferee must agree in writing to comply with all provisions of this chapter and establish to the satisfaction of grantor its financial and technical capability. Notice shall be provided, but no such consent shall be required for transfer in trust, mortgage or other hypothecation in whole or in part to secure an indebtedness of grantee.

(Ord. 322 § 3.07(a), 1986)

In the event that grantee is a corporation, prior approval of grantor shall be required in the event of a transfer of forty percent of the voting stock within a one-year period to one person or entity. Any such transfer, occurring without prior approval of grantor, shall constitute a failure to comply with this chapter.

(Ord. 322 § 3.07(b), 1986)

The procedure for considering, granting or denying renewal of any franchise granted pursuant to this chapter or any previous cable television ordinance shall be consistent with the procedures set forth in the Cable Communications Policy Act of 1984, Section 626, 47 U.S.C. Section 546 (1985).

(Ord. 322 § 3.08, 1986)

A grantee of a franchise hereunder shall pay to the grantor an annual franchise fee in an amount as designated in the franchise agreement, but in no event shall the fee be more than authorized by applicable federal or state law and such payment by grantee to grantor shall be in lieu of any occupation tax, license tax or similar levy. The franchise fee shall be stated as a percentage amount of the gross annual revenues. The time of computation of the franchise fee shall commence as of the effective date of the franchise. Grantor shall be furnished annually with a statement by a certified public accountant reflecting the total amounts of gross annual revenues, and all amounts and deductions excluded from the gross annual revenues as described in Section 5.24.020(17).

(Ord. 322 § 3.09 (a), 1986)

No acceptance of any payment by grantor of the franchise fee shall be construed as a release or as an accord and satisfaction of any claim grantor may have for further or additional sums payable as the franchise fee under this chapter or for the performance of any other obligation of grantee.

(Ord. 322 § 3.09 (b), 1986)

Payment due grantor under this provision shall be computed monthly or quarterly, for the preceding month or quarter. Each monthly or quarterly payment shall be due and payable no later than sixty days after the last day of the month or quarter. Each payment shall be accompanied by a brief report showing the basis for the computation.

(Ord. 322 § 3.09(c), 1986)

In the event that any franchise fee payment is not made on or before the dates specified herein, grantor may impose a late penalty. Such penalty shall be equal to the payment due times ten percent for each month payment is not made.

(Ord. 322 § 3.09(d), 1986)

The franchise may be terminated, or liquidated damages may be assessed, in the event the council finds, after notice and hearing that:

A. Grantee fails to comply with any material provisions of this chapter or any franchise agreement executed pursuant to this chapter. Termination proceedings shall only be commenced through a public hearing process affording due process as defined in Section 5.24.180, if, after thirty days from written notification from grantor stating the specific grounds upon which grantor relies, grantee fails to correct the stated violation. In the event the stated violation is not reasonably curable within thirty days, the franchise shall not be terminated or revoked if grantee provides, within the thirty days, a plan, satisfactory to the city manager, to remedy the violation and continues to demonstrate good faith in seeking to correct the violation. It shall not be a failure to comply with a material provision of this franchise for grantee to comply with any law, rules and regulations of the federal or state government or any federal or state regulatory commission or agency having jurisdiction over grantee's operations. The council's finding of materiality is subject to a de novo review by a court of competent jurisdiction.

B. Grantee's construction or improvement schedule is delayed longer than the schedule contained in the franchise agreement and after giving grantee the same due process hearing as provided in Section 5.24.180, grantor finds that the delay is not excusable.

(Ord. 322 § 3.10(o), 1986)

A. In the event grantor determines that grantee has failed to comply with any material provision or schedule as provied for in Section 5.24.170 and, in the case of a request for termination, has failed to cure any material breach as provided for in Section 5.24.170A, the city manager shall place a request for termination or liquidation damages upon a regular grantor meeting agenda for a public hearing. The city manager shall cause notice to be served upon grantee, at least ten days prior to the date of such meeting, a written notice of this intent to request such termination or liquidated damages, and the time and place of the meeting, notice of which shall be published at least once, within a period of ten to fourteen days before such meeting in the newspaper of general circulation within the franchise territory.

B. At the public hearing noticed pursuant to subsection A of this section, grantor shall hear any persons interested therein, and shall determine, in its discretion, whether or not any failure, refusal or neglect by grantee was with just cause.

C. If such failure, refusal or neglect by grantee was with just cause, grantor, subject to any applicable federal or state law, shall direct grantee to comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for termination within such time and manner and upon such terms and conditions as are reasonable.

D. If the grantor shall determine such failure, refusal or neglect by grantee was without just cause, then grantor may, subject to any applicable federal or state law, by resolution, declare that the franchise of such grantee shall be terminated and bonds forfeited unless there is compliance by grantee within such period as grantor may fix, or may levy liquidated damages which shall be valued in 1986 dollars as follows:

1. For failure to complete system improvement in accordance with this chapter or franchise agreement thereunder, a grantee shall pay grantor two hundred fifty dollars per day for each day, or part thereof, the deficiency continues.

2. For failure to test, analyze and report on the performance of the system in a timely manner following a written request pursuant to this chapter, a grantee shall pay to grantor fifty dollars per day for each day, or part thereof, that such noncompliance continues.

3. For failure to provide the aggregate number of services specified in the franchise agreement, grantee shall pay to grantor one hundred dollars per day for each day, or part thereof, that such noncompliance continues.

4. For failure by grantee to comply with operations, maintenance of technical standards, performance guidelines or any other material requirements of the franchise, grantee shall pay to grantor fifty dollars for each day, or part thereof, that such noncompliance continues.

E. If grantee files a written objection to the penalty with the council, then grantee and grantor shall conduct arbitration in accordance with the commercial rules of arbitration of the American Arbitration Association. Any decision by the arbitrators shall be a final judgment which may be executed upon or enforced in accordance with applicable law in any court having jurisdiction thereof. The fees for the arbitrator shall be shared equally by grantor and grantee, but the costs of arbitration, which shall be the same costs which would be taxable had the dispute been brought in the superior court of Monterey County, and reasonable attorney's fees shall be prorated among grantor and grantee in proportion to any award made by the arbitrator.

(Ord. 322 § 3.10(b), 1986)

No cable communications system shall be allowed to occupy or use the streets in the franchise territory or be allowed to operate without a franchise then valid in accordance with the provisions to this chapter.

(Ord. 322 § 3.11, 1986)

Grantor may from time to time, by resolution, establish or modify appropriate cable communications system and service requirements for future franchises; provided, that said action does not grant a cable communications system and service requirements that allow for less than the current level of requirements for technology application, franchise area and service standards.

(Ord. 322 § 3.12, 1986)