Article 5 — Limitations on Franchises

(a)

Every franchise granted pursuant to this chapter shall be non-exclusive.

(b)

No privilege or exemption shall be granted or conferred by any franchise granted pursuant to this chapter except those specifically described in this chapter.

(c)

Any privilege claimed under any such franchise by the grantee in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property.

(d)

Any such franchise shall be a privilege to be held in personal trust by the original grantee.

(1)

A franchise shall not be encumbered, 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, without the prior consent of the Council expressed by resolution. Failure to obtain Council consent shall render the franchise subject to termination by the Council. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale or similar document, a duly executed copy of which shall be filed in the office of the City Clerk within thirty (30) days after any such transfer or assignment. The said consent of the Council may not be unreasonably refused; provided, however, the proposed assignee shall show adequate financial responsibility as determined by the Council and shall agree to comply with all the provisions of this chapter and any franchise agreement; and provided, further, no such consent shall be

required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure an indebtedness, except that, when such hypothecation shall exceed fifty (50%) percent, or seventy-five (75%) percent if the grantee is a wholly-owned subsidiary of another corporation, of the market value of the property used by the grantee in the conduct of the cable television system, the prior consent of the Council shall be required for such a transfer. Such consent shall not be withheld unreasonably.

(2)

In the event the grantee is a corporation, prior approval of the Council, expressed by ordinance, shall be required where there is an actual change in control or where ownership of more than ten (10%) percent, or of more than forty-nine (49%) percent if the grantee is a wholly-owned subsidiary of a corporation, of the voting stock of the grantee is acquired by a person or group of persons acting in concert, none of whom already owned ten (10%) percent or more of the voting stock, or there is a merger or consolidation of grantees. Failure to obtain Council consent shall render the franchise subject to termination.

(3)

Nothing set forth in this section shall prevent any transfer between a wholly-owned subsidiary and a parent company or a name change which does not reflect any substantive change in the ownership of the grantee's legal entity.

(e)

Time shall be of the essence of any franchise granted pursuant to this chapter. The grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this chapter by any failure of the City to enforce prompt compliance.

(f)

Any right or power in, or duty impressed upon, any officer, employee, department, or commission of the City shall be subject to transfer by the City to any other officer, employee, department, or commission of the City.

(g)

The grantee shall be subject to all requirements of City laws, rules, regulations, and specifications heretofore or hereafter enacted or established pursuant to the valid exercise of the police powers of the City.

(h)

Any franchise granted shall not relieve the grantee of any obligation involved in obtaining pole or conduit space from any department of the City, utility company, or from others maintaining utilities in streets.

(§ 2, Ord. 461-86, eff. May 14, 1986)

(a)

Nothing set forth in this chapter 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, either by purchase or through the lawful 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 contained in this chapter shall be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the City's lawful right of eminent domain. Any acquisition of a grantee's property shall be consistent with the terms of the Cable Communications Policy Act of 1984.

(b)

There is hereby reserved to the City and the grantee every right and power which is required to be reserved or provided in this chapter by any law, and the grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or requirement of the City in its exercise of such rights or powers heretofore or hereafter enacted or established pursuant to the valid exercise of the police powers by the City.

(c)

Neither the granting of any franchise nor any provision of this chapter shall constitute a waiver or bar to the exercise of any governmental right or power of the City.

(d)

The Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter and, on behalf of the City, may engage in such fact-finding activities pertaining to the franchise agreement issued in accordance with this chapter as may be necessary during the existence of any franchise granted pursuant to this chapter. The grantee shall be notified of any such fact-finding activities and shall be given an opportunity to participate therein and be heard by the Council. The City Manager, with the approval of the City Attorney, is hereby authorized and empowered to adjust, settle, or compromise any controversy or charge between the City and the grantee arising from the operations of any grantee under this chapter. In the event the grantee is dissatisfied with the decision of the City Manager, the grantee may appeal the matter to the Council for a hearing and determination. The Council may accept, reject, or modify the decision of the City Manager, and the Council may adjust, settle, or compromise any controversy or cancel any charge arising from the operations of the grantee or from any provision of this chapter.

(§ 2, Ord. 461-86, eff. May 14, 1986)

(a)

Standards of operation.

(1)

Pursuant to the valid exercise of the police power, the Council may adopt, by resolution, rules, requirements, regulations, and standards governing the operation of cable television systems and facilities

and equipment in the City. Such rules, regulations, and standards shall apply to and shall govern the operations of the grantee of any franchise granted pursuant to this chapter and are expressly declared a part of any such franchise.

(2)

Notwithstanding any provision of this chapter to the contrary, the Council may increase the technical standards required of the grantee's operation at any time during the life of the franchise reasonably related to the state of the art then prevailing, so long as such technical standards do not conflict with the then effective Federal Communications Commission Regulations or Guidelines.

(3)

The standards adopted shall govern the engineering, construction, installation, service, and maintenance of all cable television systems, facilities, and equipment in the City, including, but not limited to standards governing carrier levels, signal-to-noise ratios, hum modulation, distortion levels, channel interactions, and interference.

(b)

Right to amend and adopt.

(1)

Any franchise issued pursuant to the provisions of this chapter shall be subject and subordinate during its term to the City's exercise of its police powers.

(2)

Pursuant to the valid exercise of the police powers, the Council at any time may adopt new ordinances, rules, regulations, or standards or may amend, modify, delete, or otherwise change its respective ordinances, rules, regulations, or standards previously adopted in the following manner: the Council shall pass its resolution of intention stating or describing the ordinances, rules, regulations, or standards to be adopted, amended, modified, deleted, or otherwise changed and fixing and setting forth a day, hour, and place certain when and where any person having any interest therein, or objection thereto, may appear before the Council and be heard. Such resolution shall direct the City Clerk to publish the resolution at least once within ten (10) days after the passage thereof in a newspaper of general circulation within the City and to mail a copy of the resolution to any grantee or applicant for a franchise not more than thirty (30) days nor less than fifteen (15) days prior to the time fixed for the hearing thereon.

(i)

At the time set for such hearing, or at any adjournment thereof, the Council shall proceed to hear and pass upon such comments as may be presented. Thereafter, the Council may adopt, amend, modify, delete, or otherwise change its respective ordinances, resolutions, rules, regulations, and standards as set forth in this section. Such determination by the Council shall be final and conclusive.

(ii)

Any ordinance, rule, resolution, regulation, or standard as adopted, amended, modified, deleted, or otherwise changed by the Council shall become effective upon the tenth (10th) day following the adoption, unless a longer period shall be otherwise provided.

(iii)

In the event the Federal Communications Commission modifies any provision of its regulations pertaining to cable television standards, such modifications, only to the extent explicitly inconsistent, shall be deemed to modify any franchise granted pursuant to this chapter.

(c)

Rates.

(1)

In granting any franchise pursuant to this chapter, the Council, by resolution, may regulate all rates and charges for service permitted by Federal laws and may establish procedures and requirements for such regulations.

(2)

Notice of any proposed rate adjustment shall be submitted by the grantee to the City Manager at least thirty (30) days prior to its effective date. Such notice shall specify in detail the rate adjustment proposed by the grantee.

(§ 2, Ord. 461-86, eff. May 14, 1986)

(a)

Within thirty (30) days after the acceptance of any franchise, the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, microwave carrier license, and any other permit, license, and authorization to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable television systems or associated microwave transmission facilities.

Notice of all petitions, applications, and communications of any kind submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other Federal or State regulatory commission or agency having jurisdiction in respect to any matter affecting the grantee's cable television operations within the City shall also be provided to the City Manager, and copies of such filings shall be submitted to the City Manager upon request.

(b)

Within ninety (90) days after obtaining all necessary permits, licenses, and authorizations, including the right of access to poles and conduits, the grantee shall commence the construction and installation of the cable television system. This subsection shall not apply to renewals.

(c)

Within 180 days after the commencement of the construction and installation of the system, the grantee shall proceed to render service to subscribers, and the completion of the installation and construction shall be pursued with reasonable diligence thereafter so that service to all of the areas designated and scheduled on the map and plan of construction made a part of the franchise shall be provided at the times set forth therein. Notwithstanding any provision to the contrary in this chapter, no franchise shall be granted unless a construction schedule and line extension policy are a condition thereof and of sufficient detail as to guarantee all households in the franchise area basic service within the earliest feasible time at the lowest feasible cost. This subsection shall not apply to renewals.

(d)

Substantial failure on the part of the grantee to commence and diligently pursue each of the requirements of this section and to complete each of the matters set forth in this section may be grounds for the termination of such franchise pursuant to the procedures set forth in Section 7-1.303 of Article 3 of this chapter. By resolution, the Council shall extend the time for the commencement and completion of the installation and construction for additional periods upon a showing by the grantee that it has experienced delays by reason of circumstances beyond its control.

Failure to comply with any time requirements set forth in subsections (a), (b), and (c) of this section will result in damages to the City, and as it is and will be impracticable to determine the actual amount of such damages in the event of delay, the grantee therefor agrees that, in addition to any other damages suffered by the City as set forth in subsection (ii) of subsection (3) of subsection (b) of Section 7-1.303 of Article 3 of this chapter, the grantee will pay to the City the sum of Two Hundred Fifty and no/100ths ($250.00) Dollars per day for each and every day's delay beyond the time prescribed, plus authorized extensions thereof, for the completion of any of the acts required to be done by this section.

(e)

A grantee shall utilize existing poles, conduits, and other facilities whenever possible and shall not construct or install any new, different, or additional poles, conduits, or other facilities, whether on public property or privately-owned property, unless and until first securing written approval of the City Manager.

Whenever a grantee shall not utilize existing poles, conduits, and other facilities, or whenever all existing utility and telephone conduits and other facilities shall be located beneath the surface of the streets on a particular street or area, or whenever the City shall undertake a program designed to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the City, in the exercise of its police powers or pursuant to the terms of this section, upon reasonable notice to the grantee, any such conduits or other facilities of the grantee shall be constructed, installed, placed, or replaced beneath the surface of the streets. Any construction, installation, placement, replacement, or change which may be so required shall be made at the expense of the grantee whose costs shall be determined as in the case of public utilities.

(f)

In those areas of the City where the transmission or distribution facilities of the respective public utilities providing telephone, communication, and electric services are underground, or hereafter are placed underground, the grantee likewise shall construct, operate, and maintain all of its transmission and distribution facilities underground. As used in this subsection, the term "underground" shall include a partial underground system; provided, however, upon obtaining the written approval of the City Manager, such approval not to be unreasonably withheld, amplifiers of the grantee's transmission and distribution lines may be placed in appropriate housings upon the surface of the ground and shall be located so as not to be unsightly or unsafe.

(g)

The grantee, at its expense, shall protect, support, temporarily disconnect, relocate, or remove any property of the grantee when, in the opinion of the City Manager or the Director of Public Works, the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grades, installations of sewers, drains, water pipes, power lines, signal lines, transportation facilities, tracks, or any other types of structure or improvement by governmental agencies, whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including, but not limited to, the movement of buildings, urban renewal and redevelopment, and any general program under which the City shall undertake to cause all such properties to be located beneath the surface of the ground. The grantee in all cases shall have the privilege, subject to the corresponding obligations, to abandon any property of the grantee in place as provided in this section. Nothing set forth in this section shall be deemed a taking of the property of the grantee, and the grantee shall be entitled to no surcharge by reason of anything set forth in this section.

(h)

Upon the failure, refusal, or neglect of a grantee to cause any work or other act required by law or this chapter to be properly completed in, on, over, or under any street within any time prescribed therefor, or upon reasonable notice given where no time is prescribed, the City Manager, if the grantee fails within a reasonable time to act, may cause such work or other act to be completed in whole or in part and, upon so doing, shall submit to the grantee an itemized statement of the reasonable costs thereof. The grantee, within thirty (30) days after the receipt of such statement, shall pay to the City the entire amount thereof.

(i)

In the event that (1) the use of any part of the system of a grantee is discontinued for any reason for a continuous period of thirty (30) days without prior written notice to, and approval by, the City, or (2) any part of such system has been installed in any street or other area without complying with the requirements of this chapter, or (3) any franchise shall be terminated, cancelled, or expire, then the grantee, at the option of the City and at the expense of the grantee and at no expense to the City and upon the demand of the City, shall promptly remove from any street or other area all property of the grantee, and the grantee shall promptly restore the street or other area from which such property has been removed to such reasonable condition as the City Manager or Director of Public Works shall approve.

(j)

The Council, upon a written application therefor by the grantee, may approve the abandonment of any of such property in place by the grantee and under such terms and conditions as the Council may prescribe. Upon the abandonment of any such property in place, the grantee shall cause to be executed, acknowledged, and delivered to the City such instruments as the City Attorney shall prescribe and approve transferring and conveying the ownership of such property to the City.

(§ 2, Ord. 461-86, eff. May 14, 1986)