HomeMy WebLinkAbout2269ORDINANCE NO. 2269
AN ORDINANCE granting a non - exclusive franchise
to Port Angeles Telecable, Inc., to operate
and maintain a community antenna television
system, and to distribute the signals as herein
provided in the City of Port Angeles.
THE CITY COUNCIL OF THE CITY OF PORT ANGELES DOES
ORDAIN as follows:
Section 1 - Definitions. For the purpose of this ordi-
nance, the following terms shall have the meaning given herein.
When not inconsistent with the context, words used in the present
tense include the future, words in the plural include the singula
and words in the singular include the plural. The word "shall"
is always mandatory and not merely directory.
(1) "City" is the City of Port Angeles.
(2) "Company" is the grantee of rights under this franchise
including its successors or assigns.
(3) "Council" is the City Council of the City of Port
Angeles.
(4) "Person" is any person, firm, partnership, association,
corporation, company or organization of any kind.
(5) "Technical facilities" or "facilities" shall mean all
real property, equipment fixtures used by Company in
the distribution of its services through its system,
and includes but is not limited to poles, cables,
wires, microwave transmitters, antennas, amplifiers,
etc.
(6) "Television System Services" or "system services" shall
mean all of the services provided by Company or avail-
able to Company to provide through its technical
facilities by the grant of this franchise, and shall
include but not be limited to the distribution of
television and radio signals.
(7) "F.C.C"
means Federal Communications Commission.
Section 2 - Grant of Authority. City grants to Port
Angeles Telecable, Inc., the right and privilege to construct,
erect, operate and maintain, in, upon, along, across, above, over
and under the streets, alleys, public ways and public places now
laid out or dedicated, and all extensions thereof, and additions
thereto, in the City, poles, wires, cables, conduits and other
technical facilities necessary for the construction, maintenance
and operation in the City of a community television system for
the interception, sale and distribution of television system ser-
vices. This franchise is not exclusive, and the City reserves
the right to grant a similar use of streets, alleys, public ways
and places to any other person at any time during the period of
this franchise. Company may use City utility poles where there
is no interference with other services or cost to the City.
Section 3 - Compliance with Laws, Rules and Regulations
At all times during the terms of this franchise, Company shall
comply with all applicable laws, rules and regulations of the
United States of America, the State of Washington and the City of
Port Angeles; including all agencies and subdivisions thereof.
Company shall be subject to the lawful exercise of the police
power of City and to such reasonable regulations as City may from
time to time hereafter by resolution or ordinance provide.
Section 4 - Company Liability, Indemnification of City
and Insurance.
(1) Company shall at all times conduct its operation under
this franchise, including installation, construction or
maintenance of its facilities, in a safe and workmanlik
manner so as not to present a danger to the public or
City.
(2) Company shall pay, same harmless and indemnify City
from any loss or claim against City on account of or in
connection with any activity of Company in the
construction, operation or maintenance of its technical
facilities and system services.
(3) The franchise shall not be effective until Company
secures, and shall at all times be conditioned upon
Company maintaining, a comprehensive liability insur-
ance policy which shall contain the following provi-
sions:
(a) Bodily injury policy limits of $100,000 for each
person and $300,000 for each occurrence.
(b) Property damage policy limits of $300,000 per
occurrence and $300,000 in aggregate.
(c) Automobile insurance in the following amount:
Bodily injury per person $100,000
Bodily injury per occurrence $300,000
Property damage $300,000.
(d) An endorsement for completed operations coverage.
(e) A designation of City, its officers, agents and
employees, as additional insured for liability
arising from or in connection with this franchise.
(f) A certificate evidencing insurance as described in
this ordinance shall be filed with the City Clerk.
Section 5 - System Standards. For the term of this
franchise, Company shall design, construct, operate and maintain
its technical facilities and provide system services as follows:
(1) Design Considerations.
(a) The system shall have the capacity for 2 -way, non -
voice return communications.
(b) The technical standards of the Federal Communica-
tions Commission, number '16.605 and all subsequent
amendments and additions thereto shall apply to
this system. Performance tests and measurements
shall be made in accordance with F.C.C. specifica-
tions in effect at the time the measurements are
made.
(2) Construction.
The construction shall follow the best practices of the
industry and shall be such that it will be compatible
with the public utility services as provided elsewhere
in this franchise. Installation shall conform to
Article 800 and 810 of the National Electrical Code.
(3) Operation.
Company shall provide its subscribers within the City
with good quality television reception, station selec-
tion and other system services.
(4) Maintenance.
Company shall maintain and improve the technical
facilities of its system according to the best accepted
practices and standards in the community antenna
television industry and according to the technical
requirements of providing improved system services to
Port Angeles. An F.C.C. Certificate of Compliance
shall be held by the Company.
(5) Company shall not make or permit any reduction in sys-
tem station selection without prior consultation and
written approval of the Council, except as may be
required by any Federal or State agency having juris-
diction.
(6) Company shall make available to its subscribers all
signals, stations and system services available within
the limits of the system's technical facilities.
(7) The system shall regularly carry the following listed
channels:
KOMO - Channel 4
KING - Channel 5
KIRO - Channel 7
KVOS - Channel 12
CBUT - Channel 2
CHEK - Channel 6
CHAN - Channel 8
Public Education - Channel 9
Weather - Channel 10
Local Programming Channel
(8) Company shall carry the following listed channel in
such a manner as to produce acceptable picture and
sound:
KSTW - Channel 11
(9) Free standard connections shall be provided the City
schools, fire hall and other City government facilities
as follows:
(a) City schools: One free connection;
(b) Fire Hall and other City government offices:
Maximum of three connections.
(10) The Company may offer special or additional services or
programming and collect fees for such services only
after appropriate hearings and approval by the City of
the fees, unless such services are exempt from local
regulation by pre - emptive federal law..
Section 6 - Company Rules. Company shall have authority
to promulgate such reasonable rules and regulations governing the
conduct of its business as shall be reasonably necessary to en-
able the Company to exercise its rights and perform its obliga-
tions under this franchise, and to assure uninterrupted service
to its customers. Company rules and regulations shall be subject
to the provisions of this ordinance and any other governmental
regulations.
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Section 7 - Condition on Street Occupancy.
(1) Use.
All transmission and distribution structures, lines and
equipment erected by the Company within the City shall
be so located as to cause minimum interference with the
proper use of streets, alleys and other public ways and
places, and to cause minimum interference with the
rights or reasonable convenience of property owners who
adjoin any of the streets, alleys or public ways or
places.
(2) Restoration.
In case of any disturbance of pavements, sidewalks,
driveways or other surfacing by the Company, the City
shall be immediately notified. The City shall make the
necessary repairs which will be paid for by the Company
(3) Relocation.
If at any time during the period of this franchise the
City shall lawfully elect to alter, or change the grade
of, any street, alley or other public way, the Company,
upon reasonable notice by the City, shall remove and
relocate its poles, wires, cables, underground conduits
manholes, or other distribution facilities at its own
expense.
(4) Placement of fixtures.
The Company's construction must conform to the practice
of the municipal utilities, electrical, telephone and
others, and to be compatible with their use of facili-
ties and equipment. The Company's technical facilities
shall not be placed where they will interfere with any
other. All facilities placed in the streets and alleys
shall be placed as the City directs. When it is neces-
sary for the City to move the facilities of or perform
other services for the Company, it shall be done at the
expense of the Company.
(5) Temporary Rearrangements of Facilities.
Company shall, upon receipt of seven (7) days written
notice from anyone desiring to move a building or other
object, according to City ordinances regulating the
moving of buildings, arrange to temporarily raise,
lower or otherwise move its facilities to permit the
moving of buildings or other objects if the person
wishing to move the building or other object makes a
reasonable arrangement to reimburse Company for its
expenses in rearranging its facilities.
(6) Interruption of Company Facilities.
The City reserves to itself and to each other owner of
facilities upon its poles the right to maintain said
poles and to operate their facilities thereon in such a
manner as will best enable them to fulfill their own
service requirements, and neither the City nor any
other such owner shall be liable to the Company for
interruption to the Company's service or for any inter-
ference with the operation of the Company's equipment
arising in any manner from the normal and nonnegligent
use of such poles and the facilities thereon by the
City and each such other owner. If the City elects to
abandon or re- locate any of its poles, the Company
shall bear the expense of re- locating its equipment.
(7) Tree Trimming.
The Company may trim trees upon or overhanging streets,
alleys, sidewalks and public places of the City so as
to prevent the branches from coming in contact with the
facilities of Company, all trimming to be done under
the supervision of the City and at the expense of the
Company.
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(8) Underground.
The Company will place its facilities underground where
other utilities, which have been over head, are under-
ground.
Section 8 - Discriminatory Practices Prohibited. Com-
pany shall make its system services available to all citizens of
City without discrimination and shall not give any person any
preference or advantage not available to all persons similarly
situated.
Section 9 - Coverage of the City and Annexed Areas
Shall Be Uniform and Complete. Appeal may be made to the City
Council for relief when extremely costly or unusual installations
are required.
Section 10 - Transfer of Franchise. Company shall not
sell, assign (except for security purposes), dispose of or trans-
fer in any manner whatsoever any interest in this franchise or in
the technical facilities used with this franchise, nor transfer
or permit transfer of controlling interest in Company without
prior written approval of Council.
Section 11 - City Rights in Franchise.
(1) Use of System by City.
City shall have the right to use Company's technical
facilities for police and fire alarm systems or any
other City -owned facilities of any nature. City use of
Company facilities shall at all times comply with the
rules and regulations of Company, and shall not compete
or interfere with Company's use. Local programming
will be provided in accordance with F.C.C. standards.
(2) City Supervision and Inspection.
The City shall have the right to supervise all construc-
tion or installation of Company facilities subject to
the provisions of this ordinance and to make such in-
spections as it shall find necessary to insure compli-
ance with governing laws, rules and regulations.
(3) Termination or Abandonment of Franchise.
Upon any termination of this franchise, whether before
the expiration of the franchise or upon expiration or
by any abandonment of the franchise by Company, all
technical facilities installed or used by Company shall
be removed by Company at Company's expense and the
property upon which the technical facilities were used
restored by Company to the condition it was in before
installation or use by Company, except that City or its
designee shall have the following option after termina-
tion:
(a) City or its designee may elect to acquire all of
Company's technical facilities inside the City for
their then fair market value.
(b) "Fair market value" shall be determined by a
broker or other person recognized as competent in
appraising CATV systems by the CATV industry and
mutually acceptable to City and Company.
Section 12 - Franchise fee.
(1) As compensation for the franchise granted by this ordi-
nance, Company shall pay to City an amount equal to
three percent (3 %) of the gross receipts collected by
Company for its system services to customers served by
this franchise. Gross receipts shall mean all amounts
collected by Company from customers for monthly service
charges.
(2) The fee required by this section shall be due and pay-
able on or before the 15th day of July and January for
the preceding six -month period.
(3) With each payment Company shall furnish the City
Treasurer with a written statement under oath, executed
by an officer of Company, verifying the amount of gross
receipts of Company within the City for the period
covered by Payment computed on the basis set out in
subsection (1) of this section.
(4) City's acceptance of any payments due under this sec-
tion shall not be considered a waiver by City of any
breach of this franchise.
Section 13 - Review of System Standards. At least
annually (unless the annual test is waived by City), and at any
time upon reasonable request by City, Company shall supply a
qualified electronic technician who is satisfactory to City to
test the performance of Company's technical facilities. These
tests shall be conducted in representative geographic areas
within the City. Tests and measurements shall be according to
current F.C.C. standards at the time the tests are made. A copy
of the F.C.C. annual report form #326 shall be supplied the City
at the same time it is submitted to the F.C.C.
Section 14 - Maximum Rate Schedule.
(1) Connection Monthly
(a) Domestic installations $24.50 $6.95
(b) Apartments 20.00 6.95
(c) Trailers 20.00 6.95
(d) Extra outlet installations 10.00 1.00
(e) Motels and other multiple
outlet installations 10.00 per 1.50
outlet
(f) Nursing Home per set used 2.00
(g) Home for Elderly per set used 2.00
(h) Re- connection 10.00 6.95
(i) Schools At cost None
(j) Unwarranted Service Calls
each 10.00
(k) Na charge shall be made for disconnecting service.
(2) City and Company agree that the rates provided in sub-
section (1) of this section are reasonable compensation
to Company for its services and that the term "reason-
able compensation" may be hereafter defined at the
discretion of the City after a study and consideration
of the national figures for similar services as affected
by local conditions.
(3) City, either upon its own motion or upon request of
Company, may at any time during the period of this
franchise by ordinance change the rate structure if
changes are necessary in the best interest of the City
and Company's subscribers, and are fair and reasonable
compensation to Company for services being rendered.
Provided, however, that no changes in the foregoing
rates for subscribers shall be made, except as author-
ized by the City after a full public proceeding, af-
fording due process to all interested parties.
Section 15 - Local Business Office. A local business
office shall be maintained by the Company for the purpose of in-
vestigation and resolution of local service complaints and to
enable the public to have convenient access to the Company. The
Company shall keep accurate books of account at this office
throughout the term of this franchise. The Company shall produce
its books of account for inspection by the City at any time dur-
ing normal business hours, and the City may audit Company books
from time to time. The Company shall file annual financial
statements of the Port Angeles operation prepared by a Certified
Public Accountant with the City Clerk. Such statements shall be
submitted within 120 days of the close of the Company's year end.
Section 16 - System Data. Company shall maintain at an
office in Port Angeles all current maps and other operational
data relating to its system operations in the City of Port
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Angeles. City may inspect these maps and data at any time during
normal business hours.
Section 17 - Permit and Inspection Fees. Nothing in
this ordinance shall be construed to limit the right of City to
require Company to pay reasonable costs incurred by City in con-
nection with the issuance of a permit, making an inspection, or
performing any other service for or in connection with Company or
its facilities, whether pursuant to this ordinance or any other
ordinance or regulation now in effect or hereafter adopted by the
City.
Section 18 - Termination of Franchise. Upon the fail-
ure of Company, after sixty (60) days' notice and demand in writ-
ing, to perform promptly and fully each and every term, condition
or obligation imposed upon it according to this ordinance, the
Council may, at its option and in its sole discretion, which dis-
cretion shall be reasonably applied, by ordinance or resolution,
terminate this franchise.
Section 19 - Remedies Not Exclusive - Waiver. All
remedies under this ordinance, including termination of franchise
are cumulative, and recovery or enforcement of one is not a bar
to the recovery or enforcement of any other remedy. Remedies
contained in this ordinance, including termination of the fran-
chise, are not exclusive, and the City reserves the right to
enforce penal provisions of any ordinance also use any remedy
available at law or in equity. Failure to enforce any provision
of this ordinance shall not be construed as a waiver of a breach
of any other term, condition or obligation of this ordinance.
Section 20 - Franchise Term. This franchise is granted
for a term of five years commencing on effective date of this
ordinance with the right to renew, subject to negotiation with
the City, provided that the Company is in compliance with all
applicable standards, such as F.C.C., and is in compliance with
the terms of this ordinance. Company shall not be in default in
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its performance of any of the terms or conditions of this fran-
chise, and shall be providing good system services as determined
by the system standards of Section 13. Provided, however, that
the City shall review the performance and qualifications of the
Company prior to its granting the renewal for the term specified
herein.
Section 21 - Emergency Use of Facilities. City may use
Company's facilities during local emergencies for purposes of ad-
vising City's citizens in connection with the emergency.
Section 22 - Acceptance of Franchise. Within thirty
(30) days from the date of passage of this ordinance, Company
shall file with the City Clerk a written unconditional acceptance
of this franchise and all of its terms and conditions, and if
they fail to do so this ordinance shall be void and of no effect.
Section 23 - Constitutionality. If any section, sub-
section, sentence, clause or portion of this ordinance is for any
reason held invalid or rendered 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 constitutionality of the remaining portion hereof. If
for any reason the franchise fee is invalidated or amended by the
act of any Court or governmental agency, then the highest reason-
able franchise fee allowed by such Court or other governmental
agency shall be the franchise fee charged by this ordinance.
Section 24. Should the Federal Communications Commis-
sion modify or amend the provisions of Section 76.31 of its Rules
and Regulations entitled "Franchise Standards" such modifications
or amendments shall be incorporated into this Ordinance within
one year of the adoption of the modification or amendment, or at
the time of the expiration of this Ordinance, or renewal thereof,
whichever occurs first. The parties acknowledge that impending
federal legislation slated for adoption in fall, 1983, could
affect the above franchise agreement through de- regulation of
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local government authority over the telecable industry. Parties
agree that this contract shall be re- opened in the event of
federal de- regulation and sections so affected amended, or
re- negotiated as appropriate.
Section 25. Prior to the award of the original fran-
chise, the City Council ot the City of Port Angeles held public
hearings regarding the award of this non - exclusive franchise to
allow Port Angeles Telecable, Inc., to continue to operate a CATV
system in Port Angeles at which interested parties were afforded
an opportunity to participate. The City Council ot Port Angeles
reviewed the performance and qualifications of Port Angeles
Telecable, Inc., during its initial operating duration and was
satisfied therewith.
PASSED by the City Council of the City of Port Angeles
and approved by its Mayor at a regular meeting ot the Council
held on the !e, `x.vu day of
ATTEST:
i I imc. Q r4 a_
Merri A. Lannoye, CitW Clerk
APPRO D AS TO FORM:
Craig g nutson, City Attorney
PUBLISHED
VO 3
1983.
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