Legislation # 07-0152 Enactment Number none
Type Ordinance - Coded Effective Date none
Introduction Date 3/28/2007
Title An Ordinance to Amend and Re-Enact Chapter 9.1 of The Code of The City of Hampton, Virginia entitled "Cable Television" in its entirety including revising and renumbering sections and adding new sections.
 
Legislation History 07-0152
DateNotice Of ActionDescription
4/11/2007 Approved consent agenda items 1 through 8 and 10 through 15.
3/28/2007 Adopted on First Reading
3/14/2007 Received By Clerk's Office
 
View Attachments 07-0152
FileTypeSizeDescription
Chapter 9 1 - Cable Television - REDLINE - February 9 2007.doc Exhibit 143K Chapter 9.1 redline
CAVALIER-SUMMARY OF THE MASTER CABLE ORDINANCE.doc Exhibit 29K Summary-Master Cable Ordinance
Chapter 9.1 - EXHIBIT A.doc Exhibit 50K Exhibit A
 
Legislation Text 07-0152

 

City of Hampton, Virginia

Ordinance - Coded

22 Lincoln Street

Hampton, VA 23669

www.hampton.gov

 

File Number: 07-0152

 

Enactment Number: -

 

An Ordinance to Amend and Re-Enact Chapter 9.1 of The Code of The City of Hampton, Virginia entitled "Cable Television" in its entirety including revising and renumbering sections and adding new sections.

 

An ordinance TO amend and re-enact chapter 9.1 of the code of the city of Hampton, Virginia, entitled cable television, in its entirety including revising and renumbering sections and adding new sections.

 

Chapter 9.1

 

CABLE TELEVISION*

__________

* Cross References: Cable television advisory committee, 2-311 et seq.; tax on purchase of cable television service, 37-345 et seq.

__________

Sec. 9.1-1. Declaration of findings and purpose.

Sec. 9.1-2. Title.

Sec. 9.1-3. Applicability.

Sec. 9.1-4. Preservation of police power authority.

Sec. 9.1-5. Compliance with laws.

Sec. 9.1-6. Defined terms.

Sec. 9.1-7. Authority to grant Franchises.

Sec. 9.1-8. Procedures to obtain a cable Franchise.

Sec. 9.1-9. Ordinance cable Franchise.

Sec. 9.1-10. Franchise renewals.

Sec. 9.1-11. Acceptance and duration of Franchise.

Sec. 9.1-12. Limitation upon grant.

Sec. 9.1-13. Construction of system.

Sec. 9.1-14. Repair of streets and public ways.

Sec. 9.1-15. Removal or abandonment of Franchise property.

Sec. 9.1-16. Changes required by public improvements.

Sec. 9.1-17. System maintenance.

Sec. 9.1-18. Local office required for addressing complaints and customer service.

Sec. 9.1-19. Additional services; route maps; compliance with national standards.

Sec. 9.1-20. Franchise fee.

Sec. 9.1-21. Inspection of property.

Sec. 9.1-22. Liability and indemnification.

Sec. 9.1-23. Termination of Franchise.

Sec. 9.1-24. Compliance with laws, rules and regulations.

Sec. 9.1-25. New developments.

Sec. 9.1-26. Costs of publication.

Sec. 9.1-27. Severability.

Sec. 9.1-28. Confidentiality.

 

Sec. 9.1-1. Declaration of findings and purpose.

 

(a) The federal Cable Communications Policy Action of 1984, Pub. L. No. 98-549, (codified at 47 U.S.C. 521-611 (1982 & Supp. V. 1987)) as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications Act of 1996, Pub. L. No. 104-104 (1996) as it may, from time to time, be amended, allows the City to grant Franchises to construct, operate, and maintain Cable Systems within the City.

 

(b) Virginia law has been amended to establish a mechanism under which providers can obtain a cable Franchise pursuant to either a negotiated cable Franchise or an Ordinance Cable Franchise, Va. Code Ann. 15.2-2108.9, et seq. as amended.

 

(c) This Code is intended to conform to the Virginia laws concerning the granting of either a negotiated cable Franchise or an Ordinance Cable Franchise, while preserving the full extent of its police power authority in order to promote competition in the provision of Cable Services and to protect the public and the public rights-of-way, in a manner consistent with federal and State law.

 

Sec. 9.1-2. Title.

 

This chapter shall be entitled Master Cable Ordinance.

 

Sec. 9.1-3. Applicability.

 

This Ordinance establishes the general Franchise requirements for all Cable Service providers. The amended Chapter 9.1 shall be applicable to all prior existing Cable Service Franchises to the extent not inconsistent with the specific terms of such Franchises, and shall apply to all new Franchises for Cable Services to be awarded by the City on and after its date of adoption. Further, this Ordinance modifies and amends the City Code in order to establish the criteria and procedures by which a provider of Cable Services may obtain permission to operate in the City pursuant to either a negotiated cable Franchise or an Ordinance Cable Franchise. The City may continue to grant a negotiated cable Franchise in accordance with Title VI of the Communications Act of 1934, as amended, 47 U.S.C. 521 et seq., and as provided by State law. The ability to obtain a negotiated cable Franchise shall be available to any qualified Applicant. The ability to obtain an Ordinance Cable Franchise shall be to:

 

(a) A Cable Provider with previous consent to use the public rights-of-way to provide Cable Services whose negotiated Franchise is up for renewal;

 

(b) A Certificated Provider of Telecommunications Services with previous consent to use the public rights-of-way in the City through a Franchise.

 

(c) A Certificated Provider of Telecommunications Services that lacked previous consent to provide Cable Service in the City but provided telecommunications services over facilities leased from an entity having previous consent to use of the public rights-of-way in the City through a Franchise.

 

Sec. 9.1-4. Preservation of police power authority.

 

Any rights granted pursuant to this Ordinance, and pursuant to any Franchise authorized hereunder, are subject to the authority of the City to adopt and enforce ordinances necessary to the health, safety, and welfare of the public. Operators shall be subject to and comply with all applicable laws enacted by the City pursuant to its police and regulatory powers, to the extent not in conflict with Virginia or federal law. Nothing in this Ordinance shall be deemed to waive a right, if any, that any party may have to seek judicial or regulatory review as to the provisions herein or as to action of the parties under applicable federal, state, or local law currently in effect or as may hereinafter be amended.

 

Sec. 9.1-5. Compliance with laws.

 

In performing activities and exercising its rights and obligations under any Franchise, the Cable Operator shall comply with all applicable federal, state and local laws, ordinances, regulations and policies, including, but not limited to, all laws, ordinances, regulations and policies relating to construction and use of public streets.

 

Sec. 9.1-6. Defined terms.

 

For purposes of this Ordinance, the following terms, phrases, words, and their derivatives shall have the meanings set forth below, unless the context clearly indicates that another meaning is intended or unless otherwise more specifically defined in another Chapter or Code of the City of Hampton. All terms used herein, unless otherwise defined, shall have the same meaning as set for in Title VI of the Communications Act of 1934, 47 U.S.C. 521 et seq.

 

Act means the federal Communications Act of 1934, as amended.

 

Applicant means any person that applies for a Cable Franchise.

 

Cable Operator means any person or group of persons that (i) provides Cable Service over a Cable System and directly or through one or more affiliates owns a significant interest in such Cable System or (ii) otherwise controls or is responsible for, through any arrangement, the management and operation of a Cable System. Cable Operator does not include a provider of wireless or direct-to-home satellite transmission service.

Cable Service or Service means the one-way transmission to Subscribers of (i) video programming or (ii) other programming services, and Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. Cable Service does not include any video programming provided by a commercial mobile service provider defined in 47 U.S.C. 332(d).

 

Cable System or Cable Television System or System means any facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service that includes video programming and that is provided to multiple Subscribers within a community, except that such definition shall not include (i) a system that serves fewer than twenty (20) Subscribers; (ii) a facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; (iii) a facility that serves only Subscribers without using any public right-of-way; (iv) a facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, 47 U.S.C. 201 et seq., except that such facility shall be considered a Cable System to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services; (v) any facilities of any electric utility used solely for operating its electric systems; (vi) any portion of a system that serves fewer than fifty (50) Subscribers in any locality, where such portion is a part of a larger system Franchised in an adjacent locality; or (vii) an open video system that complies with 653 of Title VI of the Communications Act of 1934, as amended, 47 U.S.C. 573.

 

Certified Provider of Telecommunications Services means a person holding a certificate issued by the State Corporation Commission to provide local exchange telephone service.

 

City or Locality means the City of Hampton, Virginia.

 

Ordinance Cable Franchise means an ordinance granting a Franchise to the Cable Operator pursuant to applicable provisions of the Virginia Act and this Ordinance.

 

Street means the surface, the air space above the surface, and the area below the surface of any public street, communications or public utility easement, or other public rights-of-way or public places.

 

Subscriber means any person or entity receiving service provided by a Franchisee pursuant to the authority of a Franchise.

 

Transfer means any transaction in which (i) an ownership or other interest in the Cable Operator is transferred, directly or indirectly, from one (1) person or group of persons to another person or group of persons, so that majority control of the Cable Operator is transferred; or (ii) the rights and obligations held by the Cable Operator under the Cable Franchise granted under this Chapter are transferred or assigned to another person or group of persons. However, notwithstanding clauses (i) and (ii) of the preceding sentence, a transfer of the Cable Franchise shall not include (a) transfer of an ownership or other interest in the Cable Operator to the parent of the Cable Operator or to another Affiliate of the Cable Operator; (b) transfer of an interest in the Cable Franchise granted under this Ordinance or the rights held by the Cable Operator under the Cable Franchise granted under this Chapter to the parent of the Cable Operator or to another Affiliate of the Cable Operator; (c) any action that is the result of a merger of the parent of the Cable Operator; (d) any action that is the result of a merger of another Affiliate of the Cable Operator; or (e) a transfer in trust, by mortgage, or by assignment of any rights, title, or interest of the cable operator in the cable Franchise or the system used to provide cable in order to secure indebtedness.

 

Video Programming means programming provided by, or generally considered comparable to, programming provided by a television broadcast station.

 

Virginia Act means Va. Code Ann. 15.2-2108.9, et seq. as amended.

Sec. 9.1-7. Authority to grant Franchises.

 

(a) The Council is empowered and authorized to issue, in accordance with the Virginia Act and the City Charter, nonexclusive Franchises to install, construct, operate and maintain Cable Systems in the Citys streets, as well as to regulate these activities.

 

(b) The Council has determined that the granting of Franchises for Cable Systems in the City will promote the public interest, enhance the health and welfare and safety of the public and stimulate commerce by assuring that:

 

(1) Cable Systems are responsive to the needs and interests of the City and its residents;

 

(2) Cable Systems provide, and are encouraged to provide, the widest diversity of information and service to the public; and

 

(3) There is an orderly process for the granting or renewal of Franchises, and oversight of the services provided pursuant to Franchises.

 

(c) No person shall construct, operate, maintain, or continue to operate or maintain a Cable System which occupies any part of the Citys streets without the authority of a Franchise granted by the City pursuant to this chapter.

 

(d) No provision of this chapter shall be deemed or construed to require the granting of a Franchise by the City.

 

Sec. 9.1-8. Procedures to obtain a cable Franchise.

 

(a) Franchise Required. No person shall construct, operate, maintain, or continue to operate or maintain a Cable System which occupies any part of the Citys streets or rights-of-way without the authority of either a negotiated Franchise pursuant to applicable law or an Ordinance Cable Franchise granted pursuant to this Chapter.

 

(b) Request to Negotiate. In order to obtain either a negotiated Franchise or an Ordinance Cable Franchise, an Applicant shall first file with the City a request to negotiate the terms and conditions of a negotiated cable Franchise under 15.2-2108.20 of the Virginia Act.

 

(c) Application. As part of the request, an Applicant for an initial cable Franchise shall file an application with the City in a form and containing such information as is requested by the City and shall be in a form as determined by the City Attorney and shall contain, where applicable:

 

(1) A statement as to the proposed Franchise Area;

 

(2) Resume of prior history of Applicant, including the legal, technical, and financial expertise of applicant in the cable television field;

 

(3) List of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each shareholder, if a corporation;

 

(4) List of officers, directors, and managing employees of applicant, together with a description of the background of each such person;

 

(5) The names and addresses of any parent or subsidiary of applicant or any other business entity owning or controlling applicant in whole or in part, or owned or controlled in whole or in part by Applicant;

 

(6) A current financial statement of Applicant verified by a CPA audit or otherwise certified to be true, complete, and correct to the reasonable satisfaction of the City (Submission of the most recent U.S. Securities and Exchange Commission Annual Report Form 10-K prepared by Applicant) shall be deemed as a satisfactory compliance of this requirement; and

 

(7) A proposed construction and service schedule, shall include, but not be limited to, the following: a description of the tiers of service, programming to be offered, maintenance capability (number of staff, staffing hours, etc.) policies and practices.

 

(d) Evaluation of Application. Applicants may be evaluated according to the following criteria after the City deems the application is complete. A negotiated Franchise may then be adopted at the earliest date as permitted by then applicable City requirements.

 

(1) Consideration may be given to an installation plan that would provide the flexibility needed to adjust to new developments, maintenance practices, and services that would be available to the subscriber and the community immediately and in the future.

 

(2) The evidence of financial ability required in the Applicants proposal will be such as to assure the ability to complete the entire system as proposed within a timely manner. The City will also consider the Applicants ability to operate the System and provide the necessary Services.

 

(3) Consideration may be given to evidence of the Applicants experience in operating a Cable System, where such evidence would show or tend to show or confirm the ability of the Applicant to furnish sufficient and dependable service to the potential public and private users.

 

(4) Consideration may be given to the Applicants ability to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.

 

(5) To the extent allowed by applicable law, in making any determination hereunder as to any application, the Council may consider the impact on the Citys rights-of-way with the addition of the proposed Cable System.

 

(6) The City may require the Applicant for an initial Franchise to reimburse the City for its reasonable costs to review the application, including costs for technical assistance to aid the City in understanding the nature and effect of the application.

 

(7) Prior to the issuance of a negotiated Franchise, the Council shall hold a public hearing, following reasonable notice to the public, at which every Applicant and its proposal shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard. Applicant(s) shall bear any publication costs.

 

Sec. 9.1-9. Ordinance cable Franchise.

 

(a) An Applicant shall request and make itself available to participate in cable Franchise negotiations at least forty-five (45) calendar days prior to filing a notice electing an Ordinance Cable Franchise unless the Applicant already holds a negotiated cable Franchise from the locality or the City elects not to negotiate.

 

(b) If after the initial forty-five (45) days of negotiations, an Applicant elects to pursue an Ordinance Cable Franchise, the president or chief executive officer of the Applicant shall file notice with the City that it elects to receive an ordinance cable Franchise at least thirty (30) days prior to offering Cable Service within the city. The notice shall be accompanied by a map or a boundary description showing:

 

(1) The initial service area in which the Cable Operator intends to provide Cable Service in the locality within the three-year period required for an initial service area; and

 

(2) The area in the City in which the Cable Operator has its telephone facilities. The map or boundary description of the initial service areas may be amended by the Cable Operator by filing with the City a new map or boundary description of the initial service area.

 

(c) The City shall adopt an Ordinance Cable Franchise within one hundred twenty (120) days of the Applicant filing the notice required in the subsection above. An ordinance adopted under this section that relates to a Cable Operators provision of Cable Service shall apply to such Cable Operator retroactively to the date on which the Cable Operator began to offer Cable Service in the City pursuant to this Ordinance.

 

(d) Notice of the public hearing for any such Ordinance Cable Franchise shall be advertised once a week for two (2) successive weeks in a newspaper having general circulation in the City. The advertisement shall include a statement that a copy of the full text of the ordinance is on file in the office of the clerk of Council. All costs of such advertising shall be assessed against the Applicant.

 

(e) Unless otherwise prohibited by applicable law, notwithstanding the election of an Ordinance Cable Franchise, Applicant shall be required to complete an application and reimburse the City for its reasonable costs of reviewing the application, system designs and grant of Franchise.

 

Sec. 9.1-10. Franchise renewals.

 

Franchise renewals shall be according to applicable local, state and federal law, including, but not necessarily limited to, the Cable Communications Policy Act of 1984, as amended, the Virginia Act and this Chapter. Based on receipt of a request for renewal and applicable local, state and federal law, the City shall have the right to establish procedures for review, approve any such renewal request, and require reimbursement of reasonable costs as may be permitted by law. The City and a Franchisee, may, by mutual consent, enter into renewal negotiations at any time during the term of an existing Franchise.

 

Sec. 9.1-11. Acceptance and duration of Franchise.

 

(a) Any Franchise granted pursuant to this chapter shall become effective in accordance with the terms and conditions approved by the Council; provided, that a Franchisee has filed with the clerk of Council a written instrument addressed to the Council accepting the Franchise, within the time specified by the City Council, and agreeing to comply with all provisions of this chapter and the Franchise.

 

(b) The term of a Franchise shall be stated in the Franchise granted, but shall in no event exceed fifteen (15) years.

 

Sec. 9.1-12. Limitation upon grant.

 

(a) No privilege or exemption is granted or conferred by the issuance of a Franchise pursuant to this chapter, except as specifically prescribed in the Franchise.

 

(b) Any Franchise granted pursuant to this chapter is a privilege personal to the original Franchisee. The Cable Operator shall not transfer a Franchise granted hereunder without the prior written consent of the City, provided that such consent shall not be unreasonably withheld, delayed, or conditioned. The transfer shall be made to a Person, group of persons or Affiliate that is legally, technically, and financially qualified to operate the Cable System and satisfy the Franchise obligations.

 

 

Sec. 9.1-13. Construction of system.

 

Each Franchise, whether negotiated or granted pursuant to this Chapter, shall contain Cable System construction requirements and obligations related to build-out and provisions of Cable Service pursuant to the provisions of the Virginia Act and all other applicable federal and local laws.

 

Sec. 9.1-14. Repair of streets and public ways.

 

(a) Any and all streets and public ways in the City which are disturbed or damaged during the construction, operation, maintenance or reconstruction of a Cable System shall be repaired by the Franchisee at its expense and to a condition as good as that prevailing before such work.

 

(b) Upon the failure, refusal or neglect of the Franchisee to cause any work or other act required by law, this chapter or the Franchise to be properly completed or performed, after notice to the Franchisee, the Council may cause this work or other activity to be completed or performed, in whole or in part, to the satisfaction of the City. Upon so doing, the City shall submit to the Franchisee an itemized statement of the cost thereof. The Franchisee shall, within thirty (30) days after receipt of the statement, pay to the City the entire amount thereof.

 

Sec. 9.1-15. Removal or abandonment of Franchise property.

 

(a) In the event that the use of any Franchise property is discontinued for any reason for a continuous period of twelve (12) months, any Franchise property has been installed in a street without complying with the requirements of this chapter and a Franchise, or the Franchise has been terminated, canceled or has expired, the Franchisee, at its expense, shall, at the demand of the City, remove promptly from the streets all Franchise property other than any which the City may permit to be abandoned in place. In the event of any such removal, the Franchisee shall promptly restore, to a condition as nearly as possible to its prior condition, the street or other public places in the City from which Franchise property has been removed.

 

(b) Franchise property to be abandoned in place shall be abandoned in the manner prescribed by the City. Upon the permanent abandonment of any Franchise property in place, the Franchisee shall deliver to the City executive an instrument transferring to the City the ownership of the Franchise property abandoned. It shall be in the Councils discretion to accept or reject such transfer of Franchise property.

 

Sec. 9.1-16. Changes required by public improvements.

 

The Franchisee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street, alley, or public place, or remove from any street, alley or public place any Franchise property when required by the City by reason of traffic conditions, public safety, street vacation, freeway grade, installation of sewers, drains and tracts, or any other type of construction or improvement, including, but not limited to, placement of structures and improvements underground by governmental agencies when acting in a governmental or proprietary capacity; provided, however, that the Franchisee shall in all such cases have the privileges and be subject to the obligations to abandon Franchise property in place, as provided in section 9.1-15.

 

Sec. 9.1-17. System maintenance.

 

The Franchisee shall:

 

(a) Put, keep and maintain all parts of the communications system in good condition throughout the entire period of the Franchise.

 

(b) Render efficient service, make repairs promptly and interrupt service to subscribers only for good cause and for the shortest time possible. Scheduled interruptions, insofar as possible, shall be preceded by notice given to subscribers and the City executive twenty-four (24) hours in advance, and shall occur during periods of minimum use of the communications system.

 

(c) Upon request by the Council, make a demonstration satisfactory to the Council that the technical quality of the services provided by the communications system meets any and all standards set forth in the Franchise and any applicable regulations of the FCC.

 

Sec. 9.1-18. Local office required for addressing complaints and customer service.

 

(a) Each Franchise shall require that the Franchisee maintain a local business office, or agent, which subscribers may telephone during regular business hours, without incurring added message or toll charges, so that complaints regarding the service provided pursuant to a Franchise may be promptly reported to the Franchisee. Should a subscriber have an unresolved complaint regarding such service, the subscriber shall be entitled to file its complaint with the City executive, who has primary responsibility for the continuing administration of the Franchise and the procedures for resolving complains, and thereafter to meet jointly with a representative of the City and a representative of the Franchisee within thirty (30) days to fully discuss and resolve such matters. The Franchisee shall notify each subscriber, at the time of initial subscription or contract for service with the Franchisee, of the procedures for reporting and resolving such complaints.

 

(b) All Franchises shall obligate the Franchisee to comply with City adopted Customer Service standards to the extent allowed under applicable law, as they may now exist or may be amended.

 

 

 

 

Sec. 9.1-19. Additional services; route maps; compliance with national standards.

 

(a) Additional services. As permitted by state and federal law, each Franchise may require a Franchisee to provide facilities and services to public schools and community colleges within the City, and to fire and police stations and other buildings owned and controlled by the City used for public nonresidential purposes.

 

(b) Public, educational, and governmental access channels. Consistent with applicable federal and state law, all Franchises shall obligate the Franchisee to non-discriminatory obligations with respect to public, educational, and governmental access channels.

 

(c) System maps and layout. The Franchisee shall have, at all times, up-to-date route maps showing the location of the communications system adjacent to the streets. The Franchisee shall make all maps available for review by the appropriate City personnel.

 

(d) System construction and equipment standards. The communications system shall be installed and maintained in accordance with standard good engineering practices and shall conform, when applicable, with the National Electrical Safety Code and the FCCs rules and regulations.

 

Sec. 9.1-20. Franchise fee.

 

(a) As permitted by state and federal law, a Franchisee may be required to pay to the City a Franchise fee, as set forth in the Franchise, in compensation for the use of the Citys streets pursuant to the Franchise, and to reimburse the City for its costs associated with the evaluation of an application and grant of Franchise.

 

(b) If a Franchise requires payment of a Franchise fee, each such Franchise shall authorize the City to require an audit, at the Franchisees expense, of the Franchisees financial records and accountings relating to the Franchise fee. The Franchisee shall furnish the City, upon reasonable request, such data as needed to conduct such audit in accordance with generally accepted accounting principles.

 

(c) The City and its representatives shall have the right to inspect the Franchisees financial records during normal business hours to determine whether the Franchisee has properly paid all sums due to the City pursuant to the terms of the Franchise.

 

(d) Any neglect, omission or refusal of the Franchisee to cooperate with the City in reviewing its financial information for the purpose of auditing payment of the Franchise fee, or to pay the Franchisee fee in full, at the time and in the manner provided in the Franchise, which neglect, omission or refusal shall continue for more than thirty (30) days following written notice thereof to the Franchisee from the City, shall be grounds for the termination of this Franchise, as provided for in section 9.1-23 hereof.

 

Sec. 9.1-21. Inspection of property.

 

At all reasonable times, the Franchisee shall permit examination by any duly authorized representative of the City of all Franchise property, together with any appurtenant property of the Franchisee situated within or without the City.

 

Sec. 9.1-22. Liability and indemnification.

 

(a) The Franchisee shall pay all damages and penalties which the City may legally be required to pay as a result of granting a Franchisees Franchise.

 

(b) The Franchisee shall pay all expenses incurred by the City in defending itself with regard to all damages and penalties mentioned above. The expenses shall include all costs, such as attorneys fees.

 

(c) In order for the City to assert the rights to be indemnified, defended and held harmless, the City must:

 

(1) Promptly notify the grantee of any claim or legal proceeding which gives rise to such right;

 

(2) Afford the grantee the opportunity to participate in and fully control any compromise, settlement or other resolution or disposition of such claim or proceeding; unless, however, the City, in its sole discretion, determines that its interests cannot be represented in good faith by the grantee; and

 

(3) Fully cooperate with the reasonable requests of the grantee, at the grantees expense, in its participation in, and control, compromise, settlement or resolution, or other disposition of, such claim or proceeding subject to subsection (2) above.

 

(d) The Franchisee shall be required to secure and maintain in force, for the duration of the Franchise, general comprehensive liability insurance insuring against all damages charged to the City or the Franchisee resulting from the installation, development, maintenance or expansion of a Franchisees communications system. The City shall be named in all such policies as a co-insured, or added thereon by endorsement as a named insured. A certificate of insurance for each policy, as well as a copy of each policy, shall be filed with the City Clerk. Each certificate shall provide that if the policy it covers shall be canceled by the insurance company, or the Franchisee during the term of the policy, thirty (30) days written notice prior to the effective date of cancellation shall be given to the Council.

 

 

Sec. 9.1-23. Termination of Franchise.

 

(a) The City may terminate any Franchise granted pursuant to this chapter in the event of the failure, refusal or neglect by the Franchisee to do or comply with any material requirement or limitation contained in this chapter or in the Franchise.

 

(b) Prior to termination of a Franchise, the City shall make written demand that the Franchisee do or comply with the requirement, limitation, term, condition, rule or regulation of which the Franchisee is in default. If the failure, refusal or neglect of the Franchisee to comply continues for a period of thirty (30) days following such written demand, a request for termination of the Franchise may be placed upon the Council meeting agenda. The City shall give written notice to the Franchisee, at least ten (10) days prior to the date of such Council meeting, of its intent to terminate the Franchise, and the time and place of the meeting.

 

(c) The Council shall consider its intent to terminate the Franchise and shall hear any persons interested therein, and shall determine whether or not any failure, refusal or neglect by the Franchisee to comply with the terms and conditions of this chapter or the Franchise was with just cause.

 

(d) If such failure, refusal or neglect by a Franchisee to comply was with just cause, the Council shall direct the Franchisee to comply with the terms and conditions of this chapter or the Franchise within such time and in such manner and upon such terms and conditions as are determined by the Council.

 

(e) If the Council shall determine such failure, refusal or neglect by a Franchisee to comply was without just cause, then the Council may pass its ordinance declaring that the Franchise of such Franchisee shall be terminated and forfeited, unless there is compliance by the Franchisee within such period as the Council may establish in such ordinance.

 

(f) The termination and forfeiture of any Franchise shall in no way affect any of the rights of the City under the Franchise, this chapter, or any provision of law.

 

(g) No sanction shall be invoked or Franchise revoked where the failure or delay was due to acts of God or events beyond the reasonable control of the Franchise.

 

Sec. 9.1-24. Compliance with laws, rules and regulations.

 

Any of the provisions or terms of this chapter may be amended by the Council in order to be made consistent with any new or amended law, rule or regulation of governmental authorities with jurisdiction to regulate communications systems. Where amendment to laws, rules or other regulatory standards requires modification of any Franchise granted pursuant to this chapter, the modifications necessary to effect compliance with such laws, rules or regulations shall be made within one (1) year of the effective date of such change, or at the time of renewal of the Franchise, whichever occurs first.

 

Sec. 9.1-25. New developments.

 

It shall be the policy of the City to liberally amend this chapter, upon application of a Franchisee, when necessary to enable the Franchisee to take advantage of any developments in the field of communications systems which will afford an opportunity to more effectively, efficiently, or economically serve its subscribers.

 

Sec. 9.1-26. Costs of publication.

 

The Franchisee shall assume any cost of publication of its Franchise, as such publication may be required by law, and such is payable upon the Franchisees filing of acceptance of the Franchise.

 

Sec. 9.1-27. Severability.

 

If any section, subsection, sentence, clause, phrase or portion of any Franchise granted under this chapter, is for any reason held illegal, invalid or unconstitutional by the decision of 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.

 

Sec. 9.1-28. Confidentiality.

 

All information of a financial or personal nature provided to the Council for the purposes of this chapter or a Franchise shall be used only for the purposes prescribed by this chapter or the Franchise and, further, shall not be published or provided orally or in writing to any person, entity, or agency, except as required by law or court order.

 

Adopted at the regular meeting of the City Council of the City of Hampton, Virginia held on April 11, 2007.

 

 

 

Signed by ____________________________ Date _________________

Ross A. Kearney, II, Mayor

 

 

 

 

Attested by ____________________________ Date _________________

Katherine K. Glass

Clerk of the Council