HomeMy WebLinkAbout2470ORDINANCE NO. 2470
AN ORDINANCE granting a non - exclusive franchise
renewal 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
ordinance, 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 singular, 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 Port Angeles Telecable, Inc., 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" or
"system" shall mean all of the services provided by
Company or available to Company to provide through its
technical facilities by the grant of this franchise,
and shall include but not be limited to the distribu-
tion of television and radio signals.
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(7) "F.C.C." means Federal Communications Commission.
(8) "N.C.T.A." means National Cable Television Association.
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
services. 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;
provided that Company shall have entered into a pole rental
agreement with the City prior to the beginning of the franchise
term.
Section 3 - Compliance with Laws, Rules and Regula-
tions. At all times during the term 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. Any privilege claimed hereunder in any street or other
public property shall be subordinate to any prior lawful occu-
pancy of the street or other public property.
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
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maintenance of its facilities, in a safe and workman-
like manner so as not to present a danger to the public
or City.
(2) Company shall pay, save harmless and indemnify City
from any loss or claim against City on account of or in
connection with any activity of Company in the construc
tion, operation or maintenance of its technical facili-
ties 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 $1,000,000 for each
occurrence.
(b) Property damage policy limits of $1,000,000 per
occurrence.
(c) Automobile insurance in the following amount:
Bodily injury per occurrence $1,000,000
Property damage $1,000,000.
(d) An endorsement for completed operations coverage.
(e) A designation of City, its officers, agents and
employees, as additional insureds for liability
arising from or in connection with this franchise.
(f) A certificate evidencing insurance as described in
this franchise 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) General Considerations.
(a) Technical Standards:
The technical standards and guidelines of the
Federal Communications Commission and all
subsequent amendments and additions thereto shall
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apply to the design, construction, installation,
operation, and maintenance of the system. The
design, construction, installation, operation and
maintenance of the system shall also comply with
all other applicable Federal, State and local
governmental regulations as now or hereafter
amended, and the Recommended Practices of the
National Cable Television Association (N.C.T.A.)
as now or hereafter updated.
(b) Design: The system shall be designed, construc-
ted, and operated incorporating the state- of -the-
art configuration and operation that are
technically and economically feasible.
(c) Size: The system shall be a minimum of 300 MHz,
capable of 30 channels, shall be activated with an
initial minimum of 23 channels of service and FM
stereo radio capability.
Within three years of the effective date of this
Ordinance, the Company shall have upgraded the
system to a 330 MHz operation with at least 35
channel capacity.
At any time after five years from the effective
date of this Ordinance, if six or more of the
systems listed in attached Exhibit "A" have
installed or upgraded to 400 MHz operation with
approximately 54 channel capacity, or have
installed addressable on- premises converters, the
City Council may request consideration by the
Company of a similar rebuild of the system to 400
MHz operation or the installation of addressable
on- premise converters. The Company and City shall
jointly consider such a rebuild and upgrade or
installation of converters. At the request of
either party, the City shall hold a public hearing
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to consider such factors as whether such rebuild
or upgrade or installation of converters is com-
mercially feasible, and whether there is a con-
sumer demand for such services. An independent
random poll of Company's subscribers on such
upgrade and /or installation of addressable con-
verters shall be conducted by the parties. At the
conclusion of this consideration process, and
provided that a majority of those subscribers
responding to the poll favor such upgrade and /or
installation of addressable converters, the City
Council may direct Company to make a similar
upgrade of the system to 400 MHz and /or to install
addressable on- premise converters, within 24
months of such determination and notice to
Company.
(d) Interactive Service: The system shall have the
capacity for 2 -way, non -voice return communica-
tion, including addressable equipment.
(e) Access - Limitation Equipment: Upon subscriber
request, Company shall make available suitable
devices for limiting access to cable channels at
actual cost to the Company.
(f) Access Channels: Company shall provide three
access channels for use by public schools and
governmental agencies. Initially, one channel
shall be dedicated for such use until such
utilization warrants separate viewing channels.
The City Council may require Company to activate
the second access channel for such use when the
system is upgraded to 330 MHz; provided that the
first channel is in use 80% of the weekdays for
60% of the time between 8 AM and 11 PM for ten
consecutive weeks. Thereafter, if the first
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channel's volume of programming is less than the
above specified limit for ten (10) consecutive
weeks, then the second channel shall revert to the
control of Company, to be programmed at Company's
discretion until such time as the specified limit
may again be exceeded. The City Council may
require Company to activate the third access
channel for such use when the system is upgraded
to 400 MHz; provided that the first two channels
are in use 80% of the weekdays for 60% of the time
between 8 AM and 11 PM for ten (10) consecutive
weeks. Thereafter, if the second channel's volume
of programming is less than the above specified
limit for ten (10) consecutive weeks, then the
third channel shall revert to the control of
Company, to be programmed at Company's discretion
until such time as the specified limit may again
be exceeded. Company shall provide local access
channel capacity for commercial use as required by
Section 612 of the Cable Communications Policy Act
of 1984 as amended.
(g) Access Facilities and Equipment: Company shall
provide the necessary connections between
Company's equipment and production locations
chosen by the public educational and governmental
agencies utilizing the access channel(s).
Company shall make available, upon request from
the City, a cable compatible character generator
presently owned by the Company and a fund of up to
$12,500 for the purchase of production equipment
for use by public educational and governmental
agencies in their utilization of the access
channel's).
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(h) Termination Point: Company shall provide its
residential subscribers the option of terminating
service outside the residence; provided that such
subscribers sign an agreement with Company to hold
Company and the City harmless from any liability,
to comply with Company and FCC installation
requirements, to pay Company charges for an
initial inspection of installation and service
necessitated by problems with the subscribers' on-
premise equipment, and to allow Company to fix
such problems or disconnect the faulty on- premise
equipment.
(2) Construction.
The construction shall follow the best practices of the
industry and shall be such that it will be compatible
and not interfere with the free passage of traffic
and /or pedestrians, the free use of adjoining property,
and public utility services as provided elsewhere in
this franchise. Installation shall conform to the
applicable provisions of the National Electrical Code
and shall utilize strand cable and electronic devices,
all of specialized and advanced design and type.
(3) Operation.
In operating the system, Company shall provide its
subscribers within the City with good quality tele-
vision reception, station selection, and other system
services, and shall employ personnel with training,
skill and experience in electronics and communications.
(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 F.C.C. regulations
and the technical requirements of providing improved
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system services to Port Angeles. An F.C.C. Certificate
of Compliance shall be held by the Company, if required
by the F.C.C.
(5) Free standard outlets of basic service shall be
provided the City schools, Fire Hall, and other City
government facilities as follows:
(a) City schools: One free outlet each;
(b) Fire Hall and other City government offices:
Maximum of three outlets.
Section 6 - Programming.
(1) The system shall regularly carry a broad mix of
programming, which to the extent available, shall
include children's programming, news and public affairs
programming, arts programming, sports programming,
public television programming, educational and
scientific programming, commercial network programming,
movie programming, and local programming.
(2) The system programming shall comply with F.C.C.
regulations as now or hereafter amended.
Section 7 - Customer Service. Company shall have
authority to promulgate such reasonable rules and regulations
governing the conduct of its business as shall be reasonably
necessary to enable the Company to exercise its rights and
perform its obligations 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. Company shall adopt,
publish, and disseminate to subscribers customer service rules
which shall include as a minimum the following:
(1) Company shall provide 24 -hour telephone response
service with technical staff available for customer
trouble calls and shall maintain a business office
staff adequate to process complaints, requests for
installation, service or repairs and other business in
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a timely and efficient manner. Such business office
and telephone response service shall have a publicly
listed local telephone number.
(2) Company shall respond promptly to any complaint
concerning billing, employee courtesy, programming,
safety, or Company policy and shall keep a record of
all complaints requiring service calls.
(3) Company shall render efficient service, make repairs
promptly, and interrupt service only for good cause and
for the shortest time possible.
(4) To ensure that repairs are made as promptly as pos-
sible, Company shall have an identified repair person
or persons on call as necessary for service calls on
weekends and holidays, and all repair personnel shall
be on call for emergency responses during the week.
(5) Repairs and responses to customer complaints shall be
on the same day as the customer contact was received to
the extent possible using Company's best efforts and
except as otherwise specified herein.
(6) Company shall provide all subscribers and prospective
subscribers with complete, clear, and concise written
information concerning all services and rates, which
information shall specifically include a caveat to
subscribers that on de- scrambled (i.e. premium)
channels a white line is constantly visible on the left
side of some television sets, and shall use its best
efforts to provide all subscribers with information
regarding billing and collection procedures, procedures
for ordering changes in or termination of services, and
refund policies.
(7) Company shall comply strictly with all provisions of
the privacy policy as contained in the provisions of
the Cable Communications Policy Act of 1984 and all
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other applicable Federal, State and local laws, regula-
tions, or ordinances regarding invasion of privacy.
(8) Company shall provide a pro -rata rebate of monthly fees
to any subscriber whose service is interrupted for 24
or more consecutive hours after notification to Company
of service interruption, except for reasons beyond the
Company's control, upon such subscriber request.
(9) Should a subscriber have an unresolved complaint
regarding Company's service, actions or non - actions,
such complaint may be lodged with the City, or the
designee of the City.
Section 8 - Condition on Street Occupancy. In addition
to the City's Right -of -Way Use Ordinance and other applicable
laws, Company shall comply with the following provisions:
(1) Use.
All transmission and distribution structures, lines and
equipment erected by 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 Company, the City shall
be immediately notified. The City shall make the
necessary repairs which will be paid for by Company.
(3) Relocation.
If at any time during the period of this franchise the
City shall lawfully elect to vacate, alter, relocate or
change the grade or width of any street, alley or other
public way, Company, upon reasonable notice by the
City, shall remove and relocate its poles, wires,
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cables, underground conduits, manholes, or other
distribution facilities at its own expense.
(4) Placement of Fixtures.
Company's construction must conform to the practices of
the municipal utilities, electrical, telephone and
others, and be compatible with their use of facilities
and equipment. Company's technical facilities shall
not be placed where they will interfere with any other
facilities and equipment. All facilities placed in the
streets and alleys shall be placed as the City directs.
When it is necessary for the City to move the facili-
ties of or perform other services for Company, it shall
be done at the expense of 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 Company for inter-
ruption to Company's service or for any interference
with the operation of Company's equipment arising in
any manner from the normal and non - negligent use of
such poles and the facilities thereon by the City and
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each such other owner. If the City elects to abandon
or relocate any of its poles, Company shall bear the
expense of relocating its equipment.
(7) Tree Trimming.
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 and
liability of Company.
(8) Underground.
Company will place its facilities underground where
other utilities, which have been overhead, are
underground.
Section 9 - Discriminatory Practices Prohibited.
Company 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 10 - Coverage Areas. 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 11 - Transfer of Ownership. Any franchise
approved by the City shall be based upon an evaluation by the
City, of the technical, financial, and legal qualifications, and
other criteria as such pertain to each particular applicant. No
franchise can be sold, transferred, leased, assigned, or disposed
of in whole or in part either by sale, voluntary or involuntary,
merger, consolidation or otherwise, unless approval is granted by
the City Council under the same terms and conditions as the
original franchise or as it may be subsequently amended by mutual
agreement to insure a review of unforeseen circumstances not
present at the time of the original franchise.
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An assignment of a franchise shall be deemed to occur
if there is an actual change in control or where ownership of
fifty percent (50 %) or more of the beneficial interests, singly
or collectively, are obtained by other parties. The word
"control" as used herein is not limited to majority stock
ownership only, but includes actual working control in whatever
manner exercised.
Company shall promptly notify the City prior to any
proposed change in, or transfer of, or acquisition by any other
party of control of the Company. Every change, transfer or
acquisition of control of the Company shall make the franchise
subject to cancellation unless and until the City shall have
consented thereto. In the event that the City denies its consent
and such change, transfer or acquisition of control has been
effected, the City may, based on written findings applying the
criteria referred to herein, cancel and repeal the franchise
unless control by Company is restored to a status acceptable to
the City Council. Company may seek judicial review of the City's
denial of consent to transfer of ownership by commencing
litigation in Clallam County Superior Court within 30 days of
such denial; provided that such judicial review shall be based on
the arbitrary and capricious standard of review.
Approval of the City shall not be required if said
transfer is from Company to another person or entity,
controlling, controlled by or under common control with the
Company. Approval shall not be required for mortgaging purposes;
provided that less than fifty percent (50 %) of the beneficial
interests, as described above, are affected by such mortgage.
Upon the commencement of a foreclosure action or other
actions which could possibly result in a judicial sale of all or
a substantial part of the cable system, Company shall notify the
City Council of such fact, and such notification shall be treated
as a notification that a change in control of Company has taken
place, and the provisions of this Ordinance governing the consent
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of the City Council to such change in control of Company shall
apply.
Any transfer or assignment approved by the City shall
be evidenced by a written instrument, a duly executed copy of
which shall be filed within sixty (60) days after the approval of
the transfer or assignment by the City. By said instrument, the
assignee shall agree to comply with all terms of this Ordinance.
The City shall have the right, at its sole discretion, to require
that any conditions in the original franchise be fulfilled prior
to such transfer. Furthermore, the City may ask that a review be
made of the terms of a new franchise to determine whether
unforeseen circumstances, not present at the time of the original
franchise, are now pertinent to the City, and that such
conditions, if any, be incorporated in a new franchise agreement
acceptable to the City. Such costs associated with this process
shall be reimbursed to the City by the new prospective
franchisee.
Section 12 - 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.
(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
inspections as it shall find necessary to ensure
compliance 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
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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 13 - Franchise Fee.
(1) As compensation for the franchise granted by this
ordinance, and in consideration of the right herein
granted Company to use public property which Company is
not by law otherwise authorized to use, Company shall
pay to City an amount equal to four percent (4 %) of the
gross receipts collected by Company for all of its
system services to customers served by this franchise
for each of the first five years of the franchise term
and five percent 5% thereafter. 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
payable 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 financial report showing the basis for
Company's computation, separately showing all sources
of revenue, and a written statement under oath,
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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
section shall not be considered a waiver by City of any
breach of this franchise.
Section 14 - 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 as well as other applicable National,
State and local regulations and N.C.T.A. recommended practices.
A copy of the applicable F.C.C. annual report form shall be
supplied the City at the same time it is submitted to the F.C.C.
Section 15 - Rates.
(1) Rate regulation by the City shall not be permitted to
the extent that Company is exempt from local rate
regulation by pre - emption of Federal law. To the
extent that Federal or State law or regulation may
hereafter be amended or construed in a final judgment
of a court of competent jurisdiction in a lawsuit
involving the City or any other parties to permit the
City to regulate the rate for any particular service
tiers or any other services provided by Company, the
franchise shall be amended accordingly; provided that
in the case of a conflict among cases within the Ninth
Circuit, any final judgment of the Western District of
Washington shall prevail, and in the case of a conflict,
among the Circuits, any final judgment within the Ninth,
Circuit shall prevail.
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(2) Within thirty (30) days of the beginning of the
franchise term, Company will file with the City a
complete schedule of all rates to be charged to
subscribers, including but not limited to:
(a) Installation of Basic Service.
(b) Charges for Basic Service.
(c) Installation of Premium Service.
(d) Charges for Premium Service.
(e) Installation of FM service.
(f) Charges for FM service (including rates for FM
service as a primary service).
(g) Charges for relocation and reconnection.
(h) Converter charges.
(i) Charges for parental control keys.
(j) Installation charges for additional outlet
service.
(k) Charges for additional outlet service and charges
for subscribers who elect to have their service
terminate outside of their residence or other
building.
(1) Discounts for multiple premium services, etc.
(m) Extended drop installation charges.
(n) All other charges proposed.
(3) Notice of Rate Change. Prior to implementation of any
change in rates or charges for any service or equipment
provided by Company, Company shall be required to make
every reasonable effort to provide City and all
subscribers a minimum of thirty (30) days' prior
written notice of such change.
(4) Discounts. Company shall offer a discount to those
individuals permanently disabled or sixty -two (62)
years or older who are the legal owner or lessee /tenant
of their residence provided that their combined
disposable income from all sources does not exceed the
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Federal poverty level for the current and preceding
calendar year. Such discounts will consist of fifteen
percent (15 %) from the normal charge for basic residen-
tial services as well as a fifty percent (50 %) reduc-
tion in normal residential installation charges. The
City or its designee shall be responsible for certify-
ing to the Company that such applicants conform to the
specified criteria.
Section 16 - Local Business Office, Records, and
Reports. A local business office shall be maintained by Company
for the purpose of investigation and resolution of local service
complaints and to enable the public to have convenient access to
Company. Company shall keep accurate books of account at this
office throughout the term of this franchise. Company shall
produce its books of account for inspection by the City at any
time during normal business hours, and the City may audit Company
books from time to time at the end of any fiscal year. The City
may request Company to file an annual report within 120 days of
the close of the Company's year -end. Such reports shall include,
but not necessarily be limited to the following:
A. Annual financial report as prepared by a Certified
Public Accountant (such report may be available only at a later
date);
B. A copy of the 10 -K Report, if required by the SEC,
otherwise an independently audited financial report (such report
may be available only at a later date);
C. Listings of the number of subscribers within the City;
D. The number of homes passed;
E. The number of subscribers with basic services;
F. The number of subscribers with premium services;
G. The number of subscribers using interactive services;
H. The number of hook -ups in period;
I. The number of disconnects in period;
J. The number of miles of cable laid in period;
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K. Total number of miles of cable in City;
L. Comments on citizen relations, such as the number of
complaints received and how those complaints were resolved;
M. Plans for future technical upgrading;
N. Plans for future programming and /or changes;
0. If pertinent, maps indicating existing location of
headend equipment, truck and distribution lines and projected
routes with construction completion estimate by month or quarter;
P. A statement of its current billing practices;
Q. Status of emergency power supply;
R. Current service policy procedures.
Section 17 - Annual Meeting. On a yearly basis, no
later than sixty (60) days after the anniversary date of the
granting of the franchise, upon the request of the City, Company
shall meet with City officials and /or its designated representa-
tive(s) to review the performance of Company over the preceding
twelve (12) months. The subjects shall include, but not be
limited to those items covered in the annual report required
pursuant to Section 16.
Section 18 - 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
Angeles. The City may inspect these maps and data at any time
during normal business hours.
Section 19 - Franchise Renewal, Permit and Inspection
Fees. Nothing in this ordinance shall be construed to limit the
right of the City to require Company to pay reasonable costs
incurred by the City in connection with the renewal of a fran-
chise, 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. Within 30 days of receipt of invoice from the City, the
Company shall pay out -of- pocket costs incurred by the City during
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this franchise renewal process, which costs shall be limited to
consulting fees and expenses and the costs of publishing notices
and ordinances; provided that consulting fees shall not exceed
$3,000; and provided further that such payment shall not be
construed as a waiver of Company's position that it may not have
to pay such costs that may be related to future franchise renewal
processes. Such payment shall not be deductible from or
considered to be in lieu of franchise fee payments.
Section 20 - Termination of Franchise. Upon the
failure of Company, after sixty (60) days' notice and demand in
writing, 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 discretion shall be reasonably applied, by
ordinance or resolution, terminate this franchise.
Section 21 - Remedies Not Exclusive - Waiver. All
remedies under this ordinance, including termination of the
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 franchise, are not exclusive, and the City reserves the right
to enforce penal provisions of any ordinance and also to 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 22 - Franchise Term. This franchise is granted
for a term of fifteen years commencing on October 1, 1988;
provided that the Company shall agree by its acceptance of this
franchise that the franchise shall be subject to opening at the
option of either party five and ten years after the anniversary
date for possible amendment in the event of changes in cable -
related technology and /or applicable laws and /or for the
purpose(s) specified in this franchise. Such amendment process
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shall commence 180 days prior to the anniversary date and
conclude on or before said date. This franchise shall be subject
to renewal, upon approval by the City, provided that the Company
is in compliance with all applicable standards, such as F.C.C.
regulations, is in compliance with the terms of this ordinance,
is not in default in its performance of any of the terms or
conditions of this franchise, and is providing good system
services as determined by the system standards review process of
Section 14.
Section 23 - Emergency Use of Facilities. City may use
Company's facilities during local emergencies for purposes of
advising City's citizens in connection with the emergency.
Section 24 - Acceptance of Franchise. Within thirty
(30) days from the date of passage of this ordinance, Company
shall file with the City Clerk, on a form to be provided by the
City Clerk, a written unconditional acceptance of this franchise
and all of its terms and conditions, including acknowledgement
that performance of the terms of this franchise is commercially
feasible at the present time, and waiver of any rights Company
may have which are in conflict with the terms of this franchise,
and if they fail to do so, this ordinance shall be void and of no
effect.
Section 25 - Severability. 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
reasonable franchise fee allowed by such Court or other
governmental agency shall be the franchise fee charged by this
ordinance.
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Section 26 - Repealer. Ordinance No. 2269 is repealed
effective October 1, 1988.
Section 27 - Effective Date. Section 19 of this
Ordinance shall take effect as provided by law. The remainder of
this Ordinance shall take effect October 1, 1988.
PASSED by the City Council of the City of Port Angeles
at a regular meeting of said Council held on the 15th day of
December, 1987.
ATTEST:
M A Y O R
SirAaka
Sherri L. Anderson, City Clerk
APPRO..D AS TO FORM:
Craig D
utson, City Attorney
PUBLISHED: Zo /9g
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