Sec. 6-31. - Authorization to grant.
Sec. 6-33. - Franchise required.
Sec. 6-34. - Franchise territory.
Sec. 6-37. - Applications for initial grant or modification of franchise.
Sec. 6-38. - Completion security and performance bonds.
Sec. 6-39. - Indemnity and insurance.
Sec. 6-41. - Use of public rights-of-way.
Sec. 6-42. - Use of city facilities.
Sec. 6-43. - Time of essence of any agreement.
Sec. 6-44. - Severability of agreements.
Sec. 6-45. - Transfer of control of franchise.
Sec. 6-50. - Equal opportunity policy.
Sec. 6-51. - Failure of city to enforce any franchise; no waiver of the terms thereof.
Sec. 6-52. - Cumulative rights.
Sec. 6-53. - No joint venture.
Sec. 6-54. - Processing costs.
Sec. 6-31. - Authorization to grant.
(a)
The city shall be authorized to grant to each of one or more franchisees a nonexclusive franchise to construct, reconstruct, operate and maintain a cable system within the city. Any such franchise shall constitute the right, privilege and authority to provide cable services as regulated by the provisions of this chapter and the franchise agreement.
(b)
Any franchise granted by the city is hereby made subject to the general ordinance provisions now in effect and 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.
(c)
This chapter may be amended from time to time, and in no event shall a contract between the city and a franchisee prohibit the city from amending any provision hereof.
(d)
Franchisee subject to other laws, police power.
(1)
A franchisee shall at all times be subject to and shall comply with all federal, state, and local laws. A franchisee shall at all times be subject to all lawful exercise of the police power and any other lawful authority of the city, including without limitation all rights the city may have under 47 U.S.C. § 552. Nothing in a franchise agreement shall be deemed to waive the requirements of the various codes and ordinances of the city regarding permits, zoning, fees to be paid, or manner of construction, installation, operation, maintenance, or repair of system equipment.
(2)
No course of dealing between a franchisee and the city, or any delay on the part of the city in exercising any rights hereunder, or any acquiescence by the city in the actions of a franchisee that are in contravention of such rights (except to the extent such rights are expressly waived by the city) shall operate as a waiver of any such rights of the city.
(3)
The city shall have the maximum authority to regulate cable systems, franchisees, and franchises as may now or hereafter be lawfully permissible; except where rights are expressly waived by a franchise agreement, they are reserved, whether expressly enumerated or not.
(4)
The city may, from time to time, issue such reasonable rules and regulations concerning cable systems as are consistent with applicable law.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
(a)
Any franchise agreement shall be governed, construed, and enforced in accordance with all provisions of this chapter and the laws of the state, subject to the applicable provisions of the CCPA, any applicable rules, regulations and orders of the FCC, and any applicable rules, regulations, legislation or orders of any other public body having jurisdiction over the subject matter.
(b)
In the event of a conflict between this chapter and a franchise agreement executed after the effective date of this chapter, the provision that the city determines is to its greatest benefit shall control, except where it is otherwise expressly provided to the contrary in a franchise agreement.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-33. - Franchise required.
No person may construct or operate a cable system in the city without a franchise granted by the city. No person may be granted a franchise without having entered into a franchise agreement with the city pursuant to this chapter.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-34. - Franchise territory.
The city may grant a franchise for all, or part of the city. The service area shall be the territory defined in the franchise agreement.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Any franchise agreement granted under this article and the rights, privileges and authority granted there under shall take effect and be in force from and after its approval by the council and shall continue in force and effect for a term of up to 12 years, as provided in such franchise agreement, unless sooner terminated, at which time it shall expire and be of no further force or effect.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Any franchise authorized in this article shall be nonexclusive. The city specifically reserves the right to grant at any time such additional franchises for a cable system as it deems appropriate.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-37. - Applications for initial grant or modification of franchise.
(a)
Application required.
(1)
A written application shall be filed with the city for grant of an initial franchise or modification of a franchise agreement pursuant to 47 U.S.C. § 545.
(2)
To be acceptable for filing, a signed original of the application shall be submitted to the CVT commission together with 12 copies. The application must be accompanied by any required application filing fee, conform to any applicable request for proposals, and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of all applicants with respect to the application.
(3)
All applications accepted for filing shall be made available by the city for public inspection.
(4)
There shall be a non-refundable filing fee of $10,000.00 for each application.
(b)
Application for grant of an initial franchise.
(1)
A person may apply for an initial franchise by submitting an application containing the information required in subsection (c). Upon receipt of such an application, the city shall evaluate such application pursuant to subsection (b)(4), conducting such investigations as it deems necessary including a proceeding to identify the future cable-related needs and interests of the community.
(2)
The city may at any time issue a request for proposals ("RFP") seeking applications for one or more initial franchises. An applicant shall respond to a RFP by filing an application within the time directed by the city, providing the information and material set forth in subsection (c). The procedures, instructions, and requirements set forth in the RFP shall be followed by each applicant.
(3)
The city or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.
(4)
In evaluating an application for a franchise, the city shall consider, among other things, the following factors:
a.
The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing cable franchise for the city;
b.
Whether the quality of the applicant's service under any existing franchise in the city, including signal quality, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs and interests of the communities served;
c.
Whether the applicant has the financial, technical, and legal qualifications to provide cable service;
d.
Whether the application satisfies any minimum requirements established by the city and is otherwise reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests;
e.
Whether, to the extent not considered under subsection (b)(4)d, the applicant will provide adequate educational and governmental access channel capacity, facilities, or financial support;
f.
Whether issuance of a franchise is warranted in the public interest considering the immediate and future burden, impact and other effects on the public rights-of-way and private property that would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way; the effect of granting a franchise on the ability of cable to meet the cable-related needs and interests of the community; and the comparative superiority or inferiority of competing applications.
g.
What effects a grant of the application may have on competition in the delivery of cable service in the city.
(4)
If the city finds that it is in the public interest to issue one or more franchises considering the factors set forth above, and subject to the applicant's entry into an appropriate franchise agreement, the city shall issue a franchise. If the city denies a franchise, it will issue a written decision explaining why the franchise was denied. Prior to deciding whether or not to issue a franchise, the city may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. The city also may grant or deny a request for a franchise based on its review of an application without further proceedings and may reject any application that is incomplete or fails to respond to an RFP. This chapter is not intended and shall not be interpreted to grant any applicant or existing franchisee standing to challenge the denial of its application or the issuance of a franchise to another.
(c)
Contents of application.
(1)
An RFP for the grant of an initial franchise shall require, and any application for a franchise shall contain, at a minimum, the following information:
a.
Name and address of the applicant and identification of the ownership and control of the applicant, including: the names and addresses of the ten largest holders of an ownership interest in the applicant and affiliates of the applicant, and all persons with five percent or more ownership interest in the applicant and its affiliates; the persons who control the applicant and its affiliates; all officers and directors of the applicant and its affiliates; and any other business affiliation and cable system ownership interest of each named person.
b.
A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel.
c.
A demonstration of the applicant's legal qualifications to construct and/or operate the proposed cable system, including but not limited to a demonstration that the applicant meets the following criteria:
1.
The applicant must have the necessary authority under Delaware law to operate a cable system.
2.
The applicant must have the necessary authority under federal law to hold the franchise and operate a cable system. An applicant must have, or show that it is qualified to obtain, any necessary federal licenses or waivers required to operate the system proposed.
Notwithstanding the foregoing, the city shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a franchise by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of cable systems.
d.
A demonstration of the applicant's financial ability to complete the construction and operation of the cable system proposed.
e.
A description of the applicant's prior experience in cable system ownership, construction, and operation, and identification of communities in which the applicant or any of its principals have, or have had, a cable franchise or any interest therein.
f.
Identification of the area of the city to be served by the proposed cable system, including a description of the proposed franchise area's boundaries.
g.
A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend, and access facilities.
h.
Where applicable, a description of the construction of the proposed system, including an estimate of plant mileage and its location; the proposed construction schedule; a description, where appropriate, of how services will be converted from existing facilities to new facilities; and information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities.
i.
The proposed rate structure, including projected charges for each service, installation, converters, and all other proposed equipment or services.
j.
A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of how the applicant will meet the needs described in any recent community needs assessment conducted by or for the city, and how the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support to meet the community's needs and interests.
k.
Pro forma financial projections for the proposed franchise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules.
l.
If the applicant proposes to provide cable service to an area already served by an existing cable franchisee, the identification of the area where the overbuild would occur and the ability of the public rights-of-way and other property that would be used by the applicant to accommodate an additional system.
m.
Any other information that may be reasonably necessary to demonstrate compliance with the requirements of this chapter.
n.
Any additional information that the city may request of the applicant that is relevant to the city's consideration of the application.
o.
An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all federal and state law requirements.
The city may, at its discretion and upon request of an applicant, waive in writing the provision of any of the information required by this subsection 6-37(c). If the applicant was formed less than two years before the date of the application, this same information shall be supplied for each party owning an interest of ten percent or more in the applicant.
(d)
Application for grant of a renewal franchise. The renewal of any franchise to provide cable service shall be conducted in a manner consistent with applicable federal law.
(e)
Application for modification of a franchise. An application for modification of a franchise agreement shall include, at minimum, the following information:
(1)
The specific modification requested;
(2)
The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, inter alia, submission of financial pro formas;
(3)
A statement whether the modification is sought pursuant to Section 625 of the Cable Act, 47 U.S.C. § 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. § 545;
(4)
Any other information that the applicant believes is necessary for the city to make an informed determination on the application for modification; and
(5)
An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with all federal and state law requirements.
(f)
Public hearing. Prior to the issuance of a franchise, the city shall provide for the holding of a public hearing within the proposed franchise area, following reasonable notice to the public, at which the applicant and its application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard.
(g)
After the close of the public hearing the city council may either approve or deny, by adoption of an ordinance, the franchise.
(h)
Acceptance of franchise. Following approval by the city, any franchise granted pursuant to this chapter, and the rights, privileges and authority granted by a franchise agreement, shall take effect and be in force from and after the first date on which both the franchisee and the city have accepted and signed the franchise agreement.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-38. - Completion security and performance bonds.
(a)
At all times during the term of any franchise, the franchisee shall maintain and keep in force and effect a performance bond or an irrevocable letter of credit or some other means of assurance satisfactory to the city which shall serve as a performance guarantee or bond, and as security for the performance and discharge of its obligations under the franchise agreement. The performance guarantee shall be issued by an insurance company, bank or other entity approved by the city and shall be conditioned upon the faithful performance of all terms of the franchise agreement and of law, and shall specify that if the city determines that the franchisee has failed to faithfully perform or is in default under any of its obligations, the obligor shall make good and reimburse the city such funds as are necessary to pay damages incurred by the city or otherwise meet the obligations of the franchise agreement and the law. Initially, any performance bond or letter of credit required by this section shall be in an amount not less than $2,000,000.00.
(b)
Upon completion of construction of the cable television system contemplated by the franchise agreement, the franchisee shall be entitled to reduce the amount of the performance bond or letter of credit to not less than $500,000.00 for the duration of the franchise.
(c)
Failure to establish and maintain at the full amount the letter of credit or performance bond shall constitute a material breach of the franchise agreement.
(d)
The city, at its option, may accept a corporate guarantee in fulfillment of the obligation of this section, upon the approval of the city solicitor, upon proof of financial responsibility.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-39. - Indemnity and insurance.
(a)
Each franchisee shall agree to indemnify and hold harmless the city from any and all liability to property or to persons, including death, from any and all claims, demands, actions, judgment, costs, expenses and liabilities of every kind and nature which may or could arise or result, directly or indirectly, from the installation or removal, maintenance and use of any and all wires and equipment, the property of the franchisee, the acts of the franchisee's officers, employees or agents, in the operation of its franchise, excluding claims arising out of or relating to programming produced or provided by the city or its designees.
(b)
Each franchisee shall maintain insurance, at its cost, against liability due to damage to property in a sum not less than $500,000.00 as to any one accident and subject to this limit per accident, an aggregate of not less than $1,000,000.00 during each policy year, and against liability due to injury to or death of persons, not less than $1,000,000.00 as to any one person and $5,000,000.00 as to any one accident.
(c)
Each franchisee shall also carry such insurance as will protect it from all claims under any workers' compensation laws in effect that may be applicable to any period.
(d)
To the extent permitted each franchisee under its agreement with any utility, a franchisee may satisfy the requirement of this section by making the city an additional insured thereunder and filing a copy of such insurance policy or policies with the CVT commission.
(e)
Failure to carry such insurance in the required amounts may, at the discretion of the city, result in termination of the rights granted by the franchise. The city shall provide the franchisee with notice of such default and provide such franchisee with a reasonable opportunity to cure such default. Should the city be sued for damages for injury to persons or property caused by the activities of any franchisee, its agents, employees, servants or independent contractors, while engaged in construction, installing, maintaining or operating the services described in its franchise agreement, the franchisee shall be notified of such suit by the city; and it shall be the duty of the franchisee to defend or settle such suit. If such judgment be entered against the city in any such case, the city shall recover the amount thereof with costs including its reasonable attorney's fees from the franchisee. The record of judgment against the city in any such cases shall be conclusive evidence entitling the city to so recover against the franchisee.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
No franchise agreement shall be amended, supplemented, modified, or changed except by an agreement in writing executed with the same formalities as the franchise agreement or pursuant to section 625 of the CCPA.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-41. - Use of public rights-of-way.
(a)
For the purpose of operating and maintaining a cable system in the city, each franchisee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets, alleys and ways within the city such wires, cables, conductors, ducts, conduits, walls, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and pertinent to the operation of the cable systems to provide cable services in conformance with the franchise agreement.
(b)
None of the provisions of subsection (a) of this section shall be erected or installed in any manner which conflicts with existing law.
(c)
Prior to any construction, relocation or alteration, however, the franchisee shall file plans with all appropriate city or other governmental agencies, and shall receive written approval of the city before proceeding.
(d)
All privileges prescribed by a franchise shall be subordinate to (without limitation) the city's use and any prior lawful occupancy of the public rights-of-way.
(e)
The city reserves the right to reasonably designate where a franchisee's facilities are to be placed within the public rights-of-way and to resolve any disputes among users of the public rights-of-way.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-42. - Use of city facilities.
A franchisee may only construct a hub or studio on public property or rights-of-way after receiving separate written permission from the city.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-43. - Time of essence of any agreement.
Whenever a franchise agreement sets forth any time for any act to be performed by either of the parties, such time shall be deemed to be of the essence of the agreement.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-44. - Severability of agreements.
If any section, subsection, sentence, clause, phrase or portion of any franchise agreement is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-45. - Transfer of control of franchise.
(a)
City approval required.
(1)
A franchise shall be a privilege that is in the public trust and personal to the franchisee. A franchisee's obligations under its franchise involve personal services whose performance involves personal credit, trust, and confidence in the franchisee.
(2)
No transfer of a franchise, franchisee, or cable system, or of control over the same (including, but not limited to, transfer by forced or voluntary sale, merger, consolidation, receivership, or any other means) shall occur unless prior application is made by the franchisee to the city and the city's prior consent, either in writing or by preemptive operation of law, is obtained, pursuant to this chapter and the franchise agreement, and only then upon such terms and conditions as the city deems necessary and proper. Any such transfer without the prior written consent of the city shall be considered to impair the city's assurance of due performance. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer.
(b)
Application.
(1)
A franchisee shall promptly notify the city of any proposed transfer.
(2)
At least 120 calendar days prior to the contemplated effective date of a transfer, a franchisee shall submit to the city a written application for approval of a transfer. Such an application shall provide complete information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the transferee, and on the potential impact of the transfer on subscriber rates and service. At a minimum, the following information must be included in the application, unless these requirements are waived, reduced, or modified in writing by the city:
a.
All information and forms required under federal law;
b.
All information required in subsection 6-37(c)(1) of this chapter;
c.
A detailed statement of the corporate or other business entity organization of the proposed transferee, together with an explanation of how decisions regarding the system will be made if the proposed transaction is approved;
d.
Any contracts, financing documents, or other documents that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein;
e.
Any documents related to the transaction (including any documents regarding rates the transferee expects to charge) that have been provided to any entity that has been asked to provide financing (debt, equity, or any other kind) for, or to underwrite any offering made in connection with, the proposed transaction;
f.
Any shareholder reports or filings with the Securities and Exchange Commission ("SEC") or the Federal Trade Commission ("FTC") that discuss the transaction, and any filings required under federal or state law in connection with the proposed transaction;
g.
Complete financial statements for the franchisee and any potential transferees (or for the transferees' corporate parents if the transferee has been in existence for less than three years) for the last three years, including balance sheets, income statements, profit and loss statements, and documents detailing capital investments and operating costs;
h.
A detailed description of the sources and amounts of the funds to be used in the proposed transaction, indicating how the debt-equity ratio of the system will change in the course of the transaction; what entities will be liable for repayment of any debt incurred; what interest, payment schedule, and other terms or conditions will apply to any debt financing; any debt coverages or financial ratios any potential transferees will be required to maintain over the franchise term if the proposed transaction is approved; what financial resources would be available to the system under the control of the proposed transferee; whether the proposed transferee can meet debt-equity or any other required ratios without increasing rates, with any assumptions underlying that conclusion, and if not, what increases would be required and why;
i.
Any other information necessary to provide a complete and accurate understanding of the financial position of the system before and after the proposed transfer, including but not limited to two sets of projected income statements and cash flow statements, including capital investments, for at least five years after the proposed transfer, one set assuming the transfer is approved, and one set assuming the transfer is not approved, each set stating specifically what assumptions are being made with respect to any rebuild or upgrade of the system;
j.
Complete information regarding any potential impact of the transfer on subscriber rates and service;
k.
A detailed analysis of franchise fee payments made by the franchisee, or any affiliate, during the life of the franchise, showing (1) total gross revenues, by category (e.g., basic, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); (2) what revenues, by category, were included in the calculation of the franchise fee, so that it is clear what, if any, revenues were not included and the dollar value of those exclusions; (3) the value of any non-cash compensation received (e.g., trades for advertising spots), showing what amounts of non-cash compensation were included in the franchise fee calculation; (4) what, if any, deductions were made from revenues in calculating the franchise fee (e.g., bad debt), and the amount of each deduction; (5) if an outside agency was used to collect revenue (e.g., a collection agency, an advertising agency paid on the basis of percentage of sales), how much revenue was received by these agencies, and the total amount of revenues included for purposes of the franchise fee calculation;
l.
Information sufficient to permit the city to determine the franchisee's compliance with its franchise obligations over the term of the franchise, including specific descriptions of any noncompliance of which the franchisee or any potential transferee is aware;
m.
Any representations made to anyone, in connection with the transaction, about the franchisee's compliance with its franchise; and
n.
A brief summary of the proposed transferee's plans for at least the next five years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services, and any other changes affecting or enhancing the performance of the system.
To the extent consistent with applicable law, the city may waive in writing any such requirement that information be submitted as part of the initial application, without thereby waiving any rights the city may have to request such information after the initial application is filed.
(3)
At the franchisee's option, the franchisee may notify the city of the proposed transaction in general terms at least 150 days prior to the contemplated effective date of a transfer, and request that the city waive some or all of the information requirements specified in subsection (b)(2). To the extent consistent with applicable law, the city may waive in writing any such requirement that information be submitted as part of the initial application, without thereby waiving any rights the city may have to request such information after the initial application is filed.
(4)
For the purposes of determining whether it shall consent to a transfer, the city or its agents may inquire into all qualifications of the prospective transferee and such other matters as the city may deem necessary in considering the matters described in subsection (c). The franchisee and any prospective transferees shall assist the city in any such inquiry, and if they fail to do so, the request for transfer may be denied.
(5)
Any transfer review period established by federal law will not begin until all documents and information required by subsection (b)(2), without exception, have been provided to the city, unless the city and the franchisee have expressly agreed in writing, before the transfer application is filed with the city, that specified documents or parts of documents may be redacted, excluded, or reviewed through special arrangements. By accepting its franchise, a franchisee agrees that no law, regulation, form, instruction, or other provision of federal law as of the date of such acceptance excuses the franchisee from full compliance with the requirement to provide the city with all the documents and information required by subsection (b)(2), without exception, as stated therein. It shall be the responsibility of the franchisee in any transfer to make any arrangements with the city with regard to redaction, exclusion, or confidentiality, including without limitation the execution of any confidentiality agreements that may be appropriate, prior to the filing of any FCC Form 394 or transfer application, so that all documents and information required by subsection (b)(2) can be included in the application when it is first filed. By accepting its franchise, a franchisee agrees that any transfer application inconsistent with this requirement is void and, in addition, that filing such an application constitutes a violation of this chapter.
(c)
Determination by city.
(1)
In making a determination as to whether to grant, deny, or grant subject to conditions an application for a transfer, the city may consider, without limitation, the legal, financial, and technical qualifications of the transferee to operate its system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with its franchise agreement, this chapter, and applicable law, and, if not, whether the proposed transferee will cure any noncompliance; whether the transferee owns or controls any other cable system in the city, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the city; whether operation by the transferee or approval of the transfer would adversely affect subscribers or the public, or the city's interest under the franchise agreement, this chapter, and other applicable law; whether the transfer would make it less likely that the future cable-related needs and interests of the community would be satisfied at a reasonable cost; and any other matters that it is required or permitted to consider under applicable law.
(2)
Any transfer without the city's prior written approval shall be ineffective, and shall make this franchise subject to cancellation at the city's sole discretion, and to any other remedies available under the franchise agreement, this chapter, or other applicable law. Any such transfer shall be deemed to cause irreparable harm to the city.
(3)
A franchisee shall be fully liable for any transfer that is in violation of the terms of its franchise agreement or this chapter and is caused in whole or in part by any other entity or entities, including but not limited to any parents or affiliated entities, as if such transfer had been caused by the franchisee itself.
(4)
The city reserves the right to review, inter alia, the purchase price of any transfer, and to take any necessary steps, including denial of the transfer to ensure that any purchase price will not adversely affect subscriber rates.
(5)
Any mortgage, pledge or lease of the system or the franchise shall be subject and subordinate to the rights of the city under the franchise agreement, this chapter, and other applicable law.
(d)
Transferee's agreement. No application for a transfer shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of the franchise agreement and this chapter, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee for all purposes, including renewal.
(e)
Closing. The franchisee shall notify the city of the closing of a transfer within 30 days after it occurs, and upon the city's request shall file with the city an executed copy of the complete closing documents.
(f)
Approval does not constitute waiver. Approval by the city of a transfer does not constitute a waiver or release of any of the rights of the city under this chapter or a franchise agreement, whether arising before or after the date of the transfer.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
(a)
Mutual agreement. Subject to applicable law, a franchise granted under this article may be renewed for an additional 12-year period, upon agreement of the parties, and upon a determination by vote of the city council, following public hearings of satisfactory performance by the franchisee of its obligations under its franchise agreement, in accordance with the performance standards set forth in section 626 of the CCPA as of its effective date or as amended thereafter, which standards, unless expressly waived by written agreement of the franchisee and the city, shall govern any renewal proceedings notwithstanding any provision of a franchise agreement to the contrary.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
In accepting any franchise granted by the city pursuant to this article, the franchisee shall acknowledge that its privileges thereunder are subject to the police powers of the city to adopt and enforce general laws, regulations, resolutions, and ordinances necessary for the safety and welfare of the public; and it agrees to comply with all applicable general laws, regulations, resolutions, and ordinances presently in force or subsequently enacted by the city pursuant to such powers.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
(a)
Fees payable. For the reasons that:
(1)
The city streets, highways, roads, alleys, footways, bridges, tunnels, overpasses, underpasses, approaches, viaducts and other public rights-of-way controlled or operated by the city to be used by a franchisee in the operation of a cable television system within the boundaries of the city are valuable public properties acquired and maintained by the city at great expense to its taxpayers and that the grant of a franchise to use such public rights-of-way is a valuable property right without which a franchisee would be required to invest substantial capital in right-of-way costs and acquisitions; and
(2)
The city will incur costs in regulating and administering any franchise;
(b)
Each franchisee shall pay to the city a franchise fee of five percent of all gross revenues derived from all operations of the franchisee's system to provide cable services within the city for each 12-month period following issuance and acceptance of the franchise and without credit for taxes or fees paid to the state. Gross revenues shall include advertising or leased access revenues. The franchise fee shall be payable quarterly within 30 days of the end of the quarter for which it is payable based on estimates of quarterly revenue with an annual reconciliation. In the event that any franchise fee payment or any recomputation amount is not paid by the due date, then interest shall accrue to the city from such due date at a rate equal to the interest rate then chargeable for unpaid federal income taxes (26 U.S.C. § 6621). In addition to the foregoing, the failure of a franchisee to make timely payment shall subject the franchisee to an additional late charge of ten percent of the amount of such payment. The city shall have the authority to waive such late charge if payment is delayed through no fault of the franchisee.
(c)
In the event that a franchise is revoked prior to its expiration date, the franchisee shall file with the city, within thirty days after the date of revocation, a financial statement certified by the franchisee's chief financial officer or an independent certified public accountant clearly showing the gross revenues received by the franchisee since the previous franchise fee payment period and shall pay at that time any franchise fees accrued as of the date of revocation.
(d)
Not a tax or in lieu of any other tax or fee.
(1)
Payment of the franchise fee shall not be considered in the nature of a tax, nor shall it be considered in lieu of other taxes or fees imposed by the city except to the extent that federal law requires such other taxes or fees to be considered part of the franchise fee.
(2)
Franchisee shall not denominate any such fees in any bills or other communications with subscribers in any manner that misstates the amount, notice, basis, incidence, or method of calculation of such fees, or that might mislead a subscriber regarding such matters.
(e)
No accord or satisfaction. No acceptance of any payment by the city shall be construed as a release or an accord and satisfaction of any claim the city may have for further or additional sums due or for the performance of any other obligation of a franchisee, or as an acknowledgement that the amount paid is the correct amount due.
(f)
Allocation of discounts. For purposes of calculating franchise fee payments under applicable franchise provisions, any discount reflected in an aggregated bill for services which include cable services will be allocated in such a way as not to reduce the franchise fee that would otherwise be due for the cable services involved if they were obtained separately.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
(a)
Grounds. Any franchise granted under this article may be terminated for a substantial breach of the franchise agreement.
(b)
Procedure. As a condition precedent to the termination of any franchise, the city shall provide the franchisee with written notice of such substantial and material breach and of its intent to terminate the franchise. The city shall allow the franchisee 30 days within which to cure such breach or to commence diligent efforts to effect cure. If the nature of the breach is such that it cannot be reasonably remedied within 30 days after notice from the city, the franchisee shall have a reasonable time within which to cure the breach and if it does not do so satisfactorily, the city may terminate the franchise agreement.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-50. - Equal opportunity policy.
Equal opportunity employment shall be afforded by all franchisees of cable television systems to all qualified and qualifiable persons, and no person shall be discriminated against in employment because of race, color, religion, age, national origin, sex, or physical handicap. In addition to the positive continuing program of specific practices required by section 634 of the CCPA, each franchisee shall agree to the following provisions:
(1)
Employment turnover. Each franchisee will take substantial steps to fill new positions and vacancies which arise within its labor force with a minimum number of eligible city residents which number shall be proportionate to the total number of employees of the franchisee multiplied by the ratio formed by dividing the number of city residents by the total number of persons within the county area served by the franchisee. As part of this goal, each franchisee will take substantial steps to fill 20 percent of such positions with minorities, and a total of 40 percent of such positions with residents eligible under CETA, JTPA, or other equivalent federal programs to the extent that they are available and qualified.
(2)
Training and recruitment. As part of its program to meet required employment goals, a franchisee shall utilize the training programs and the recruitment, screening and referral services of the city's personnel department in addition to existing resources of the franchisee. The franchisee shall also utilize the Wilmington Campus of Delaware Technical and Community College, and any such other local colleges or organizations as the city may reasonably designate. Franchisee shall send notices of employment openings to each of such organizations as soon as practicable whenever such openings occur.
(3)
Intended beneficiaries. Each franchisee and the city shall agree that city residents who are discriminated against because of race, color, religion, age, national origin, sex or physical handicap are intended beneficiaries of the equal employment opportunity provisions of the franchise agreement and that such provisions establish legal and equitable duties toward them, together with corresponding enforceable rights of them, as intended beneficiaries, and that any such city resident may seek judicial relief and remedies for violations of such provisions in the appropriate courts in order to enforce any of such provisions.
(4)
Other rights not restricted. Any agreement between a franchisee and the city pursuant to the provisions of subsection (3) of this section shall not be construed to limit or restrict any other rights or remedies of the city or of any other person that may exist or arise under that or any other provision of the franchise agreement, nor to limit or restrict any other rights or remedies of the city or of any person which may exist or arise independently of the provisions of the franchise agreement.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-51. - Failure of city to enforce any franchise; no waiver of the terms thereof.
The franchisee shall not be excused from complying with any of the terms and conditions of any franchise granted by the city by any failure of the city upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. No waiver by the city of any breach of any provision of a franchise agreement shall be construed as a waiver of any succeeding breach of such provision, or as a waiver of the provision itself.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-52. - Cumulative rights.
The rights and remedies reserved to the city or to any franchisee by a franchise agreement shall be cumulative and shall be in addition to and not in derogation of any other rights or remedies which the city or a franchisee may have with respect to the subject matter of the franchise agreement, and a waiver thereof at any time shall have no effect on the enforcement of such rights or remedies at a future time.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-53. - No joint venture.
Nothing in any franchise agreement shall be deemed to create a joint/venture or principal/agent relationship between the parties, and neither party to a franchise agreement shall be authorized to, nor shall either party act toward third persons or the public in any manner, which would indicate any such relationship with the other.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-54. - Processing costs.
Each franchisee shall be required to reimburse the city for the costs expended in soliciting and evaluating applications and processing the franchise agreement consistent with federal and state law.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)