112.02 GRANT OF FRANCHISE.
1. A person providing Cable Service or Video Service in the City shall not provide such service without a Franchise issued either by the Board pursuant to Iowa Code §477A.3 or by the City under such terms permissible under Iowa Code Chapter 477A.
2. Term. Any Franchise granted by the City hereunder shall be for a term of ten (10) years commencing on the effective date of the franchise, unless otherwise lawfully terminated in accordance with the terms of the franchise.
112.03 STANDARDS OF SERVICE.
1. Conditions of Street Occupancy. All transmission and distribution structures, poles, other lines, and equipment installed or erected by a Franchisee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of public ways and with the rights and reasonable convenience of property owners who own property that adjoins any of said public ways.
3. Relocation at Request of the City. Upon its receipt of reasonable advance notice, not to be less than five (5) business days, a Franchisee shall, at its own expense, protect, support, temporarily disconnect, relocate in the public way, or remove from the public way, any property of the Franchisee when lawfully required by the City by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the City, but a Franchisee shall in all cases have the right of abandonment of its property. If public funds are available to any person using such street, easement, or right of way for the purpose of defraying the cost of any of the foregoing, the City shall make application for such funds on behalf of the Franchisee.
4. Relocation at Request of Third Party. A Franchisee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wires to permit the moving of such building, provided: (a) the expense of such temporary raising or lowering of wires is paid by said person, including, if required by a Franchisee, making such payment in advance; and (b) a Franchisee is given not less than ten (10) business days’ advance written notice to arrange for such temporary wire changes.
5. Trimming of Trees and Shrubbery. A Franchisee shall have the authority to trim trees or other natural growth overhanging any of its cable system in the service area so as to prevent branches from coming in contact with the Franchisee’s wires, cables, or other equipment. Franchisee shall be permitted to charge persons who own, or are responsible for, such trees or natural growth for the cost of such trimming, provided that similar charges are assessed by and paid to the utilities or the City for tree trimming. A Franchisee shall reasonably compensate the City or property owner for any damages caused by such trimming, or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees or shrubs damaged as a result of any construction of the cable system undertaken by Franchisee. Such replacement shall satisfy any and all obligations Franchisee may have to the City or property owner pursuant to the terms of this section.
6. Safety Requirements. Construction, installation, and maintenance of the cable system shall be performed in an orderly and workmanlike manner. All such work shall be performed in substantial accordance with applicable FCC or other Federal, State and local regulations and the National Electric Safety Code. The cable system shall not unreasonably endanger or interfere with the safety of persons or property in the service area.
7. Aerial and Underground Construction. In those areas of the service area where all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are underground, the Franchisee likewise shall construct, operate and maintain all of its transmission and distribution facilities underground, provided that such facilities are actually capable of receiving a Franchisee’s cable and other equipment without technical degradation of the cable system’s signal quality. In those areas of the service area where the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are both aerial and underground, a Franchisee shall have the sole discretion to construct, operate and maintain all its transmission and distribution facilities or any part thereof, aerial or underground. Nothing contained in this section shall require a Franchisee to construct, operate, and maintain underground any ground-mounted appurtenances such as subscriber taps, line extenders, system passive devices (splatters, directional couplers), amplifiers, power supplies, pedestals, or other related equipment. Notwithstanding anything to the contrary contained in this section, in the event that all of the transmission and distribution facilities of the respective public utilities providing telephone communications and electric services are placed underground after the effective date of the franchise, a Franchisee shall only be required to construct, operate, and maintain all of its transmission and distribution facilities underground if it is given reasonable notice and access to the public utilities’ facilities at the time that such are placed underground.
8. Emergency Use. In the case of any emergency or disaster, a Franchisee shall, upon request of the City, make available its facilities for the City to provide emergency information and instructions during the emergency or disaster period. Except to the extent expressly prohibited by law, the City shall hold a Franchisee, its employees, officers, and assigns, harmless from any claims arising out of the emergency use of its facilities by the City, including, but not limited to, reasonable attorneys, fees and costs.
112.04 REGULATION BY THE CITY.
1. Franchise Fee.
A. The Franchisee shall pay to the City a franchise fee equal to three percent (3%) of Gross Revenues received by Franchisee from the operation of the cable system on a quarterly basis. The franchise fee payment shall be due and payable not later than forty-five (45) days after close of the quarter. Each payment shall be accompanied by a brief report from a representative of Franchisee showing the basis for the computation.
B. The period of limitation for recovery of any franchise fee payable hereunder shall be 10 years from the date on which payment by the Franchisee is due. Unless within 10 years from and after such payment due date the City initiates a lawsuit for recovery of such franchise fees in a court of competent jurisdiction, such recovery shall be barred and the City shall be stopped from asserting any claims whatsoever against the Franchisee relating to any such alleged deficiencies.
2. Rates and Charges. The City may regulate rates for the provision of basic cable and equipment as expressly permitted by applicable law.
3. Renewal of Franchise. The City and the Franchisee agree that any proceedings undertaken by the City that relate to the renewal of the Franchisee’s franchise shall be governed by and comply with the provisions of Iowa Code Chapter 477A.
112.05 COMPLIANCE AND MONITORING.
1. Testing for Compliance. The City may perform technical tests of the cable system during reasonable times and in a manner which does not unreasonably interfere with the normal business operations of the Franchisee or the cable system in order to determine whether or not the Franchisee is in compliance with the terms hereof and applicable State and Federal laws. Except in emergency circumstances, such tests may be undertaken only after giving the Franchisee reasonable notice thereof, not to be less than two business days, and providing a representative of the Franchisee an opportunity to be present during such tests. In the event that such testing demonstrates that the Franchisee has substantially complied with such material provisions hereof, the cost of such testing shall be borne by the City. Except in emergency circumstances, the City agrees that such testing shall be undertaken no more than once a year, and that the results thereof shall be made available to the Franchisee.
2. Books and Records. The Franchisee agrees that the City, upon reasonable written notice to the Franchisee, may review such of its books and records at the Franchisee’s business office, during normal business hours and on a non-disruptive basis, as is reasonably necessary to ensure compliance with the terms hereof. Such records shall include, but shall not be limited to, any public records required to be kept by the Franchisee pursuant to the rules and regulations of the FCC. Notwithstanding anything to the contrary set forth herein, the Franchisee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. The City agrees to treat any information disclosed by the Franchisee as confidential and only to disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof.
112.06 INSURANCE AND INDEMNIFICATION.
1. Insurance Requirements. The Franchisee shall maintain in full force and effect, at its own cost and expense, during the term of the franchise, Comprehensive General Liability insurance in the amount of $1,000,000 combined single limit for bodily injury and property damage. The Franchisee shall provide a certificate of insurance designating the City as an additional insured. Such insurance shall be non-cancelable except upon thirty (30) days’ prior written notice to the City.
2. Indemnification. The Franchisee agrees to indemnify, save and hold harmless, and defend the City, its officers, boards and employees, from and against any liability for damages and for any liability or claims resulting from property damage or bodily injury (including accidental death) which arise out of the Franchisee’s construction, operation or maintenance of its cable system, including, but not limited to, reasonable attorney’s fees and costs, provided that the City shall give the Franchisee written notice of its obligation to indemnify the City within ten (10) days of receipt of a claim or action pursuant to this section. If the City determines that it is necessary for it to employ separate counsel, the cost for such separate counsel shall be the responsibility of the City.
112.07 ENFORCEMENT AND TERMINATION OF FRANCHISE.
1. Notice of Violation. In the event that the City believes that the Franchisee has not complied with the terms of the franchise, it shall notify Franchisee in writing of the exact nature of the alleged noncompliance.
2. Franchisee’s Right to Cure or Respond. The Franchisee shall have thirty (30) days from receipt of the notice described in subsection 1: (i) to respond to the City, contesting the assertion of noncompliance, or (ii) to cure such default, or (iii) in the event that, by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that they will be completed.
3. Public Hearing. In the event that the Franchisee fails to respond to the notice described in subsection 1 pursuant to the procedures set forth in subsection 2, or in the event that the alleged default is not remedied within thirty (30) days or the date projected pursuant to subsection 2 above, the City shall schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the City which is scheduled at a time which is no less than five (5) business days therefrom. The City shall notify the Franchisee in writing of the time and place of such meeting and provide the Franchisee with an opportunity to be heard.
4. Enforcement. Subject to applicable Federal and State law, in the event the City, after such meeting, determines that the Franchisee is in default of any provisions of the franchise, the City may:
A. Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages; or
B. Commence an action at law for monetary damages or seek other equitable relief; or
C. In the case of a substantial default of a material provision of the franchise, declare the Franchise Agreement to be revoked in accordance with the following: The City shall give written notice to the Franchisee of its intent to revoke the franchise on the basis of a pattern of substantial noncompliance with a material provision of the franchise. The notice shall set forth the exact nature of the noncompliance. The Franchisee shall have ninety (90) days after such notice to object in writing and to state its reasons for such objection. In the event that the City has not received a satisfactory response from the Franchisee, it may then seek termination of the franchise at a public meeting. The City shall cause to be served upon the Franchisee, at least ten (10) days prior to such public meeting, a written notice specifying the time and place of such meeting and stating its intent to request such termination. At the designated meeting, the City shall give the Franchisee an opportunity to state its position on the matter, after which it shall determine whether or not the franchise shall be revoked. The Franchisee may appeal such determination to an appropriate court, which shall have the power to review the decision of the City de novo and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the City. The City may, at its sole discretion, take any lawful action which it deems appropriate to enforce the City’s rights under the franchise in lieu of revocation of the franchise.
5. Impossibility of Performance. The Franchisee shall not be held in default or noncompliance with the provisions of the franchise, or suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by strikes, acts of God, power outages, or other events reasonably beyond its ability to control.
112.08 MISCELLANEOUS PROVISIONS.
1. Actions of Parties. In any action by the City or the Franchisee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld.
2. Equal Protection. In the event the City enters into a franchise, permit, license, authorization, or other agreement of any kind with any other person or entity other than the Franchisee to enter into the City’s streets and public ways for the purpose of constructing or operating a cable system or providing cable service to any part of the service area, the material provisions thereof shall be reasonably comparable to those contained herein, in order that one operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law.
3. Severability. In the event that any court of competent jurisdiction shall finally determine that any provision, or any portion thereof, contained in this chapter shall be void or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court determines it enforceable, and as so limited shall remain in full force and effect. In the event that such court shall determine any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this chapter shall nevertheless remain in full force and effect.
4. Notice. Unless expressly otherwise agreed between the parties, every notice or response to be served upon the City or Franchisee shall be in writing and shall be deemed to have been duly given to the required party five (5) business days after having been posted in a properly sealed and correctly addressed envelope when hand delivered or sent by certified or registered postage prepaid.