HomeMy WebLinkAbout3550 ORDINANCE NO. .'�n50
AN ORDINANCE regulating the occupancy and use of Public Rights-of-Way by
Television Cable Systems and Open Video Systems, providing for
establishment of customer service standards; establishing Franchise and
licensing requirements for Operators of such systems and prescribing terms,
and conditions for and upon the construction, maintenance, and repair of such
systems; amending Chapters 11.08 and 11.14 of the Port Angeles City Code,
all relating to Television Cable Systems and Open Video Systems.
WHEREAS, the City of Port Angeles wishes to promote the availability of high-quality
and diverse television cable services to City residents, businesses, the City of Port Angeles, and
other public institutions; and to promote the availability of diverse information resources to the
community, including through the development of advanced systems that can support public,
educational, and governmental programming and high-speed Access to the Internet; and
WHEREAS,the City of Port Angeles wishes to provide opportunities to the public to obtain
Access to Cable System Facilities for the purpose of disseminating and receiving information; to
promote competitive cable rates and services; to take advantage of opportunities presented by cable
and Open Video Systems to provide for more open government; to enhance educational
opportunities throughout the community and provide opportunities for building a stronger
community; and to allow flexibility to respond to changes in technology, Subscriber interests, and
competitive factors that will affect the health, welfare, and well-being of the community; and
WHEREAS, in light of federal and State law, and the changes to local procedures required
by them, the City of Port Angeles finds that it is necessary to enact the following requirements and
further finds it appropriate to apply the provisions hereof to existing Cable Television Franchisees,
E .
permittees, and Licensees to the degree permitted by applicable law; and
1
WHEREAS,the City of Port Angeles finds that it is in the interest of the public to Franchise
and to establish standards for Franchising Cable Operators in a manner that promotes these
objectives and otherwise protects the public interest,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PORT ANGELES
DO HEREBY ORDAIN AS FOLLOWS:
Section 1. Ordinance 2166 as amended, and Sections of Chapter 11.08 of the Port Angeles
Municipal Code are hereby amended by to read as follows:
11.08.100 - Permittee—Indemnity to save the City harmless from claims.
e
As a condition of permit issuance, a permittee shall agree to indemnify, defend, and hold the
City harmless from, and defend the City against, any claims for Personal injury or property damage
arising out of or in any way connected with, the performance by the permittee of any work within
the Rights-of-Way of the City pursuant to the issued permit.
11.08.110 - Permittee—Liability insurance required.
Any permittee receiving a permit under the terms of this Chapter, tl i=ai3-n kc t -a1nf�
�;, c� inn nn � 4, shall provide to the City satisfactory proof of the existence of a
comprehensive liability insurance policy;i� aatl f�� � ltix {1 l }=t� 13�i��c: r
L-;;it}-r1tt y 1 t iii � t>--en4-providing coverage of not less than$50,000.00 $1,000,000.00 for
Personal injury to any one Person, $1-00,000.00 $3,000,000.00 for injury to more than one Person
arising out of the same incident, and $20,000.00 $100,000.00 for property damage, against claims
arising pursuant to permits issued pursuant to this Chapter. The permittee C=i �-, shall obtain and
deliver to the City furt-lik rF le e p o :1'°1' -th an endorsement to such policy, naming the City as an
ed
additional insured.
f3�tt�3�crx}i-tk�c=��e-ivin��-l�ei�nit-unc-l�r-tht tc�r��s-�#�-t1�i-;;-Chapter: tl�t3-fai�-���}fit E-a1i�e-f>f
hi h is-c3�e 0t 10-r1 11 ptt i<le-to t1 i#�- gatn1=zeetc�r r�o =ti=t11i= -istc 16c 0-I a
2
Lf13 3'ci=r ii=zi=tiz—i?z�131NIV! Tniizi3ic `rc31� t`-iircrii iii 1E?�lfi� z#�E1 f3i1�a detei- died IDY i,e
a*d { f_94R--ff dam,___ ins dins-ai _y}tii�,t+an44.(-pt i�m-its-i-s,,u-et1-1-)t *i-t--to
' ; Qhapten ;she-"' =44-tlat
it}=as-a��-z�d �n-al-ii�sttr�d: �
11.08.120 - Work—Applicable standards—Generally.
Except as otherwise provided in this Chapter, all work performed pursuant to a permit issued
pursuant to this Chapter shall be done in accordance with D the Standard Specifications for Road,
Bridge and Municipal Construction issued by the Washington State Chapter of the American Public
Works Association and Department of Transportation, current edition, and 21 the City of Port
Angeles Urban Services Standards and Guidelines Manual.
I `
Existinjz poles to be used. To the extent possible permittees shall use existing poles and conduit
Additional poles may not be installed in the Right-of-Way, nor may pole capacity be increased by
I
( vertical or horizontal extenders, without the permission of the City.
To minimize disruption of public passage or infrastructure to forestall or relieve exhaustion of
Public Rights-of-Way capacity, or to protect environmentally sensitive areas the City may require
as a condition of issuing any Public Rights-of-Way permit for erection of new poles or construction
of underground conduit, the installation of which requires excavation of or along any traveled way,
that the permittee provide pole space or empty conduits in excess of its own present and reasonably
foreseeable requirements for the purpose of accommodating the City and/or other permittees and
Licensees.
Section 2. Ordinance 3083 as amended, and Chapter 11.14 of the Port Angeles Municipal
Code are hereby amended to read as follows: j
•
11.14.010 - General provisions.
• 11.14.020 - Definitions.
• 11.14.030 - Occupation License required.
•
11.14.040 - Right-of-Way License required for Private Telecommunications System.
3
• 11.14.050 - Master Permit required for Telecommunications Service.
•
11.14.060 - Persons asserting an existing State-wide grant.
•
11.14.070 - Facilities Lease required.
• 11.14.080 - Use Permits required.
•
11.14.090 - Transitional provisions.
• 11.14.100 - Administrative provisions.
•
11.14.110 - Fees and compensation.
•
11.14.120 - Conditions of Licenses, Franchises, Master Permits and Leases.
• 11.14.130 - Compliance.
•
11.14.140 - General Provisions Applicable to All Grantees.
• 11.14.150 - Applicability.
•
11.14.160 - Television Cable Franchise Required.
•
11.14.170 - Special Rules Applicable to Cable Systems.
•
11.14.180 - Open Video Systems.
•
11.14.190 - Miscellaneous.
11.14.010 - General provisions.
:
A. Findings and purpose.
1. The City Council finds that it is in the public interest to permit use of the City's Rights-of-
Way and to establish standards for use of the Rights-of-Way for Service Providers and other
Operators of Telecommunications Systems, in a manner which:
(a) Encourages competition by establishing non-discriminatory terms and conditions under
which Service Providers and other Operators of Telecommunications Systems may use valuable
Public Property to serve the public.
(b) Protects the public interest in the use o f the limi ted physical capacity of the Public Rights-
of-Way.
(c) Protects the public and the City from any harm resulting from such private use of Rights-
of-Way and preserves and improves the aesthetics of the community.
(d) Protects and carries out the regulatory authority of the City and recovers administrative
costs, in a manner consistent with federal and State law.
2. The City Council finds that the City's Rights-of-Way, other City Property, and Utility
Facilities such as its poles and conduits within the City constitute valuable Public Property:
4
(a) That can be partially occupied by private companies and other entities for facilities used in
the delivery, conveyance, and transmission of telecommunications, utility and public services
rendered for profit, to the enhancement of the health, welfare, and general economic well being of
the City and its citizens; and
(b) That are a unique resource so that proper management by the City is necessary,to maximize
the efficiency and minimize the costs to the taxpayers of the foregoing uses and to minimize the
inconvenience and negative effects, including degradation, upon the public from such facilities' l
construction, emplacement, relocation, and maintenance in the Rights-of-Way.
3. Therefore, the purpose and intent of this Chapter is to:
(a) Permit and manage reasonable Access to the limited physical capacity of the available
Public Rights-of-Way of the City for telecommunications purposes in a non-discriminatory,
competitively neutral, and non-exclusive way to the extent required under applicable law.
(b) Encourage open competition and the provision of advanced and high quality
Telecommunications Services on the widest possible basis to the businesses, institutions, and
residents of the City, while eliminating unnecessary local regulation of Telecommunications
Service Providers and services.
(c) Promote and encourage competition for voice, data,video,and video programming services
that make the latest and best technology available and keep service prices affordable for all City
residents and businesses.
(d) Encourage universal Access to telecommunications and video programming services for all
residents and businesses.
(e) Encourage investments by Telecommunications Service Providers to enhance economic
development programs and provide jobs, opportunities, and choices for its citizens.
(f) Encourage economic development while preserving aesthetic and other community values
and preventing proliferation of aboveground facilities.
(g) Enable the City to discharge its public trust consistent with rapidly evolving federal and
State regulatory policies, industry competition, and technological development.
5
(h) Recover the City's current and ongoing costs of granting and regulating private Access to
and use of the Public Rights-of-Way from the Persons and businesses seeking such Access and
causing such costs, in a non-discriminatory manner.
(i) Establish a local policy concerning Cable Systems and Open Video Systems that use the
Public Rights-of-Way;.
(j) Promote the availability of diverse, multimedia information resources to the community
over Cable Systems and Open Video Systems; enhance educational opportunities throughout the
community and build a stronger community
(k) Encourage the provision of advanced and competitive Cable or Open Video System
Services on the widest possible basis to the businesses, institutions and residents of the City.
11.14.020 - Definitions.
For-All G-li-apte --artzc tht=i} t tienz�r # #c3r �t-l e#-thc lt�llo it�g
-)A+-)+E s-ai-4-phrc'r`es shall have tl-i �l Jl 'v f�tth�of"lle ££�1t�I2£�
shall ;,,,a;calle ,,,l vis �3 r1��t i aE c»�si knt- it1} t1}t. cc3r�i t- r�1 � cl-i� t13c
p {c at to r�s in I��flt-the=# ittire-terrs -d s in"lie axd
words-in-thy=sill-; tit ei!-int lut the tral fl n+leiL.--anc4 Nit
fem ine gen " 1I" . , 7 '4, Wl n
,,•..
�� �11�.'� l-'�EHrc�s�1's13ci,i—cZrn-i—��-rrc—an-l—n-lc�nE�i�tcrr,}—rind—l-l-1i3-�ks-pernricirci—��s:S
statet�-w<w{ls-rat+t de i�ned4n-this Ghaptef- :shzill lit cc3t sty{} l nsi t rat i t
141 , 441 -J- t d-,States--"de and '1 itle �4-f=tlie44-,v-,el "'Ode and-. ii=nc
-serr r hose ill �-�ty--1 "t%E-p
pl,oviS c;,,. T�z- .1ei2.L-���C^:s to-Iaw.s_,o1 in n�f s or "rig lati{ns ,,�,.,7i r„ int rpritttl k�x ��11 =te et � r
gtr� t►nei3t anon 1evc t=tic)
n �kd-apt ic1�avdins z�n� rg�rlatiE}n� �ci�3 lfxct
et'-l�or�it�#=tcj=gnat=trued-�t�t��t nc-lt=r1:
For the purposes of this Chapter, the following terms,rms, phrases, words, and abbreviations shall have
the meanings given herein. When not inconsistent with the context,words used in the present tense
include the future tense; words in the plural number include the singular number; and words in the
6
singular number include the plural number; and the masculine gender includes the feminine gender.
The words "shall" and "will" are mandatory, and "may" is permissive. Words not defined in this
Chapter shall have the same meaning as in Title VI of the Communications Act of 1934, as
amended, 47 USC §§ 521 et. seq., and if not defined therein, their common and ordinary meaning_
References to governmental entities (whether Persons or entities) refer to those entities or their
successors in authority. If specific provisions of law referred to herein are renumbered, then the
reference shall be read to refer to the renumbered provision. References to laws, ordinances or
regulations shall be interpreted broadly to cover government actions however nominated and
I include laws, ordinances and regulations now in force or hereinafter enacted or amended.
A. "Access," "PEG Access," or "PEG Use" refers to the availability of a Cable System or Open
Video System for public, education or Government Use (including institutional network use) by
various agencies, institutions, organizations, groups, and individuals, including the City of Port
IAngeles and its designated Access providers, to acquire, create, and distribute programming not
under a Franchisee's editorial control.
B. "Affiliate" means a Person, who (directly or indirectly) owns or controls, is owned or
controlled by, or is under common ownership or control with another Person.
B-.Q "Applicant" means any Person or entity that applies for any Right-of-Way License,
Franchise, Lease, or other permit pursuant to this Chapter.
C—.D. "Application f Fee" means the charge specified in Section 11.14.03-0 110 herein, and
designed to recover the City's actual administrative costs in processing applications for any Right-
of-Way License, Franchise, Lease or other permit pursuant to this Chapter, including applications
v
for the Transfer thereof.
I
7
E. "Basic Service"means any service tier regularly provided to all Subscribers which includes
the public,educational,and Government Access Channels and the retransmission of local television
broadcast signals.
D-.F. "Cable Communications System" means the Cable Communications Policy Act of 1984, 47
U.S.C. 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act
of 1992, as further amended by the Telecommunications Act of 1996, and as may be further
I
amended from time to time.
G. "Cable Communications System"refers to Open Video Systems (OVS)and Cable Systems.
EH. "Cable f-Facilities" See has the same meaning as "Cable System".
&1. "Cable sSystem" means a facility, consisting of a set of closed transmission paths and
associated signal generation, reception and control equipment that is designed to provide cable
service which includes video programming and which is provided to multiple Subscribers within a
community, but such term does not include:
1. A facility that serves only to retransmit the television signals of one or more television
broadcast stations;
2. A facility that serves Subscribers without using any Public Right-of-Way;
3. A facility of a common carrier which is subject, in whole or in part, to the provisions of
Title 11 (Common Carriers) of the Communications Act of 1934, as amended, 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;
r 4. Any facilities of any electric utility used solely for operating its electric utility systems; or
8
5. An Open Video System that is certified by the FCC.
A reference to a Cable System includes pedestals, equipment enclosures (such as equipment
cabinets), amplifiers, power guards, nodes, cables, Fiber Optics and other equipment necessary to
operate the Cable System.
I
li:J. "Cable ffelevision s-Service" means for- the pufpose of this Chapter shall have the same
ime uniirgptovided by the Cable-A t and to the extent a pli able AGW 35- .010. the one-way
transmission to Subscribers of video programming and Subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming service.
K. "Channel" means a time or frequency slot or technical equivalent on the Cable System,
discretely identified and capable of carrying full motion color video and audio, and may include
other non-video subcarriers and digital information. 3
H-.L. "City" means the City of Port Angeles, a nor ehar-tef eode eity municipality of the State of F
Washington, in its present incorporated form or in any later reorganized, consolidated, enlarged or p
reincorporated form.
M. "City Manager" means the City Manager and the City Manager's designee.
LN. "City p Property" means and includes all real property, utility poles, conduits, bridges and
simila other facilities owned or controlled by the City, other than public streets and Utility
Easements as those terms are defined herein, and all property held in a proprietary capacity by the
City, which are not subject to Right-of-Way licensing and Master Permitting as provided in this
Chapter.
O. "Construction, Operation or Repair" and similar formulations of those words, indicating
actions, interpreted broadly, encompassing, among other things, installation, extension,
9
maintenance, replacement of components, relocation, undergrounding_grading, site preparation
adjusting, testing, make-ready, and excavation.
3.P. "Council" means the City Council of the City of Port Angeles, Washington.
I
K-.Q. "Director" means the Director of Public Works and Utilities of the City of Port Angeles er
and his/her designee.
R. "Downstream Channel" means a Channel designed and activated to carry a transmission
from the headend to other points on a Cable Communications System including interconnections.
L. Vlll llll'a11J an), City held easement and publie tifilities.
S. "Educational Access" or "Educational Use" means Access where educational institutions
are the primary or designated programmers or Users having editorial control over their
communications.
MT. "Emergency" means a condition of imminent danger to the health, safety and welfare of
property or Persons located within the City including, without limitation, damage to Persons or
property from natural consequences, such as storms, earthquakes, riots or wars.
N-.U. "Excess e Capacity" means the volume or capacity in any existing or future duct, conduit,
manhole, handhole or other Utility Facilities within the Right-of-Way that is or will be available
for use for additional
Telecommunications Facilities.
ON. "Facilities" has the same meaning as Telecommunications Facilities means all of the plant,
a
pnrorr�rr, °-ca-reS, appcirc@nuiz6cJ, ccrrc@iirlus-zZi?, tT-vr
teleeemmunieations > pfivate teleeemmunieations serwiees, ,
ineluding but not limited to poles with > > wires, lines, eenduits,
10
equipment,eables, eommunieation and signal lines and > and all
gW. "Facilities I Lease" or "1 Lease" means the legal authorization to occupy and use specific
City Property and/or specific areas of City Right-of-Way for the specified time and under the
specified terms as agreed to between the City and the lessee.
4Q-.X. "FCC" or "Federal Communications Commission" means the federal administrative agency
or lawful successor, authorized to regulate and oversee telecommunications, cable and open video
carriers, Operators and providers on a national level.
RN. "Fiber eOptics" means the technology of guiding and projecting light for use as a
communications medium.
S.Z. "Franchise" means the prior authorization, granted by the City to << �'OC t A iI.I,the
Operator of a Cable Communications System r giving the c: k .#0i" Operator the non-exclusive
right to occupy the space in, under, over or across Rights-of-Way of the City to provide a specified
service within the City. Such Franchises do not include and are not a substitute for:
1. Any other permit or authorization required for the privilege of transacting and carrying on
a business within the City required by the ordinances and laws of the City;
2. Any permit, agreement or authorization required in connection with operations on or in
public streets or property, including by way of example and not limitation, Right-of-Way
construction, use and street cut permits;
11 �
3. Any permits or agreements for occupying any City Property or property of private entities
to which Access is not specifically granted by the Franchise including, without limitation, permits
and agreements for placing devices on or in any City Property including, without limitation, poles,
conduits, buildings, other structures or railroad easements, or property of a private entity; or
4. The right to place devices in the Right-of-Way, such as pay telephones, for end User use in
terminating or originating transmissions.
f
By way of example, and without limiting the foregoing, this Chapter shall not be read to diminish
or in any way affect the authority of the City to control and charge for the use of its real estate,
fixtures or Personal property. Therefore, any Person who desires to use such property must obtain
additional approvals, Master Permits, Use Permits or agreements for that purpose, as may be
required by the City or State law.
AAA. "Franchisee" means the Person, firm or corporation to whom or which a Franchise, as
defined in this section, was previously granted by the City and the lawful successor, transferee or
assignee of said Person, firm or corporation subject to such conditions as may be established in this
Chapter.
BB. "Franchise Area" means the area of the City that a Franchisee is authorized to serve by the
terms of its Franchise or by operation of law.
CC. "Franchise Fee."
1. In consideration of the grant and exercise of a Franchise to construct, install operate or
ii
provide services using Facilities in the Public Rights-of-Way, a Franchisee shall pay to the City
Franchise fee expressed as a.percentage of Gross Revenues. The Franchise shall specify the fee to
be paid, and the Gross Revenues to be included in the fee calculation. If a Franchise rg anted
12
pursuant to this Chapter specifies a Franchise fee established as the result of limiting applicable
law, the City shall have the option to renegotiate the amount of the Franchise fee upon a change in
applicable law. Nothing herein requires a Person to pay amounts in excess of any limits that may
be established by State or federal law.
2. UVPP Fees. A UVPP (Unaffiliated Video Program Provider) that provides services using
a Cable Communications System for which charges are assessed to Subscribers but are not received
by the Franchisee, shall pay a fee in lieu of a Franchise fee on such service pursuant to the Franchise
fee calculation contained in the Franchisee's Franchise.
DD. "Government Access" or "Government Use" means Access where government institutions
or their designees are the primary or designated programmers or Users having editorial control over
s
their communications;
LEE. "Grantee" means the holder of a Franchise -Right-of-Way License, Master Permit, Use
Permit or Facilities Lease.
i
OFF. "Gross rRevenues" means all cash, credits, property, or other consideration of any kind or
nature received directly or indirectly y a Franchisee or its Affiliates from any source whatsoever
arising from, attributable to, or in any derived from a Franchisee's operation of a Cable
Communications System to provide cable service within the Franchise Area. Gross Revenues include
E
but are not limited to,fees charged to Subscribers for cab; fees charged to Subscribers for any ptional
premium, per-Channel, or per-program service; monthly fees charged to Subscribers for an bier of
service other than Basic Service; installation, disconnection, re-connection and change-in-service
cr
fees; leased Channel fees; fees, payments, or other payment received as consideration from
programmers for carriage programming on the Cable Communications System; converter rentals or
sales; studio rental, production equipment, and personnel fees; advertising revenues, including a per
13
�r
capita share of advertising revenues for advertising carried on more than one Cable Communications
System; revenues from home shopping Channels; sales of programming guides; late fees; and such
other revenue sources as may now exist or hereafter develop. The definition shall be interpreted in a
manner that permits the City to collect the maximum Franchise Fee permitted by law, irrespective of
the source of revenue. Gross Revenues, however, shall not include any bad debt (defined as unpaid
Subscriber or advertiser accounts), any taxes on services furnished by a Franchisee or UVPP and
imposed directly upon any Subscriber or User (as opposed to the Franchisee or UVPP) y the State,
City,or other governmental unit and collected by a Franchisee or UVPP on behalf of said governmental
unit. The Franchise Fee is not such a tax,and the amount paid as a Franchise Fee shall not be deducted
E from Gross Revenues. means all fevenue, ineluding ftinds used to pay Ffanehise Fees, 4om the
howevef!, Gross Revenues shall not inelude taxes imposed direetly upen any Subsefibef or-Usef by
and provided f4thef, that a Gfantee may deduet f+om its Gfess Revenues those revenues reeeived
ftem a lessee of a like pf evider that holds a Ffanehise or- Lieense undef this ehaptet!, provided tha
said lessee of like pfavider submits a eertifieate to the Grantee stating that it has paid the fees it
owes the City for-the applieable fepeffing period. Copies of the eei4ifieate must be provided to t
WL.GG."License" or "rRight-of- wWay ILccense" refers to the legal authorization, in lieu of a
Franchise or Master Permit, to use a particular, discrete, and limited portion of the Public Rights-
of-Way to construct, maintain or repair a Telecommunications Facility or a Private
E
P;
Telecommunications System by a Non-Service Provider. The term License or Right-of-Way
License shall not mean or include:
14
E:.
I. Any other permit or authorization required for the privilege of transacting and carrying on
a business within the City;
2. Any other permit, agreement or authorization required in connection with operations on
public streets or property, including by way of example and not limitation, Right-of-Way
construction permits or Use Permits as defined in Chapter 11.08 PAMC;
3. Any permits or agreements for occupying any City Property or property of private entities
to which Access is not specifically granted by the Right-of-Way License including, without
limitation,permits and agreements for placing devices on or in any City Property including,without
limitation, poles, conduits buildings, other structures or railroad easements, or property of a private .
entity; or
4. The right to place devices in the Right-of-Way, such as pay telephones, for end-User use in
originating and terminating transmissions, otherwise authorized, such as by a Facilities Lease.
X7HH. "Master ppermit" means the agreement between the City in which it grants general
permission to a Service Provider to enter, use, and occupy the Right-of-Way for the purpose of
locating Facilities. For purposes of this Chapter, a Franchise, except for a Cable television
Franchise, is a Master Permit.
t
A cable television Franchise granted pursuant to this Chapter shall with respect to the cable
services provided by a Cable Communications System Operator, be in lieu of the Master Permit
License required by this Chapter.
The term Master Permit shall not mean or include:
1. Any other permit or authorization required for the privilege of transacting and carrying on
a business within the City.
15
F
2. Any other permit, agreement or authorization required in connection with operations on
public streets or property, including by way of example and not limitation, Right-of-Way
construction permits and Use Permits as defined in Chapter 11.08 PANIC.
3. Any permits or agreements for occupying any other property of the City or private entities
to which Access is not specifically granted by the Master Permit including, without limitation,
permits and agreements for placing devices on or in poles, conduits other structures, or railroad
easements, whether owned by the City, or a private entity.
4. The right to place devices in the Right-of-Way, such as pay telephones, for end-User use in
originating and terminating transmissions, otherwise authorized, such as by a Facilities Lease.
�'—Il. "Non-sService pProvider" means any Person installing, constructing, monitoring or
operating a Private Telecommunications System or installing, constructing, maintaining Facilities,
including but not limited to conduit and/or unlit dark fiber located in the Right-of-Way that is not
used to provide Telecommunications Service for hire, sale or resale to the general public.
Z-.JJ. "Open vVideo sSystem" or "OVS" means a facility consisting of a set of transmission paths
and associated signal generation, reception and control equipment that is designed to provide cable
service, which includes video programming, which is provided to multiple Subscribers within a
community, and which the Federal Communications Commission or its successor has certified as
compliant with Part 76 of its rules, 47 C.F.R., Part 76, as amended from time-to-time.
AA-.KK."Open vVideo sSystem sService" means video programming by means of an Open Video
System.
LL. "Operator," when used with reference to a system, refers to a Person (a) who, directly or
through one or more Affiliates,provides service over a Cable Communications System and directly
16
or through one or more Affiliates owns a significant interest in such facility; or (b) who otherwise
controls or is responsible for, through any arrangement, the management and operation of such a
system.
BB-.MM."Other wWays" means the highways, streets, alleys, Utility Easements or other Rights-of-
Way within the City; but under the jurisdiction and control of a governmental or private entity other
than the City.
E
i
ANN."Overhead €Facilities" refers to electric utility and Telecommunications Facilities located
above the surface of the ground, including the underground supports and foundations for such
Facilities.
100. "PEG" means Public, Educational, and Government Access Channels collectively.
DD-.PP."Person" means and includes corporations, companies, associations,joint stock companies
or associations, firms, partnerships, limited liability companies and individuals and includes their
lessors, trustees and receivers but does not include the City.
FE-.QQ"Personal wWireless sService" means commercial mobile services, unlicensed wireless
services, and common carrier wireless exchange Access services, as defined by federal law and
regulations.
FRRR."Private tTelecommunications fFacilities" means all of the plant, equipment, fixtures,
appurtenances, antennas, and other Facilities necessary to furnish and deliver Private
Telecommunications Services, including but not limited to poles with crossarms, poles without
crossarms, wires, lines, conduits, cables, communication and signal lines and equipment, braces,
Y
guys, anchors, faults and all attachments, a pp urtenances and appliances necessary or incidental to
the distribution and use of Private Telecommunications Services. "Private Telecommunications
17
i
Facilities" also includes any conduit, lines, fiber or unlit dark fiber that is not used to provide
Telecommunications Services for hire, sale or resale to the general public.
G&SS"Private tTelecommunications sSystem" means a Telecommunications System controlled
by a Person or entity for the sole and exclusive use of such Person, entity or Affiliate thereof,
including the provision of private shared Telecommunications Services within a User group located
in discrete private premises in building complexes, campuses or high rise buildings, by such party
or entity, but not encompassing in any respect,a system offered for hire, sale or resale to the general
public. For the purposes of this Chapter, "Private Telecommunications System" also includes
Facilities comprised of conduit, lines, fiber or unlit dark fiber located in the Right-of-Way that are
( not used to provide Telecommunications Services for hire, sale or resale to the general public.
I
H TT."Private tTelecommunications sSystem eOwner" means a Person that owns or Leases a
,Private Telecommunications System.
1-1-.UU. "Proposal" means the response, by an individual or organization, to a request by the City
regarding the provision of Telecommunications Services. "Proposal" also includes an unsolicited
plan submitted by an individual or organization seeking to provide Telecommunications Services
in the City.
V. "Public Access" or "Public Use" means Access where organizations groups or individual
embers of the general public, on a non-discriminatory basis are the primary or designated
ro rammers or Users having editorial control over their communications.
t.
W. "Public Property" means "City Property" as defined herein.
X. "Public Rights-of-Way" means "Right-of-Way" as defined herein.
Y. "Revocation" means the City's affirmative act of terminating a Franchise.
18 i
B-ZZ."Right-of-wWay" means land acquired or dedicated for roads and public streets and
easements for which, under City ordinances and other applicable laws, the City has authority to
grant Master Permits, Licenses or Leases for use thereof, or has regulatory authority thereover, and
may be more specifically defined in the Master Permit, License or Lease granting any right to or
use thereof. "Rights-of-way" for the purpose of this Chapter do not include buildings, parks, poles,
conduits or similar Facilities or property owned by or Leased to the City, including, by way of
example and not limitation, structures in the Right-of-Way such as utility poles, and bridges.
AAA. "School" means any accredited primary School, secondary School, college, and university.
K-K.BBB."Service pProvider" means every corporation, company, association, joint stock
association, firm, partnership, or Person owning, operating, or managing any Facilities used to I
provide and providing Telecommunications or Cable Television Service for hire, sale, or resale to
the general public. Service Provider includes the legal successor to any such corporation, company,
association,joint stock association, firm, partnership, or Person.
L4—,.CCC."State" means the State of Washington.
DDD. "Subscriber" means the City or any Person who is lawfully receiving for any purpose or
reason, any cable service via a Cable Communications System with Franchisee's express
permission, whether or not a fee is paid for such service.
MM.EEE."Surplus sSpace" means that portion of the usable space on a utility pole, or in a duct or
conduit which has the necessary clearance from other Users, as required by federal or State orders
and regulations, to allow its use by a telecommunications carrier for a pole attachment or other
Telecommunications Facility.
L
19
FFF. "Telecommunications Facilities" means all of the plant equipment fixtures
appurtenances antennas and other Facilities necessary to furnish and deliver
Telecommunications Services including but not limited to poles with crossarms poles without
crossarms, wires, lines, conduits cables communication and signal lines and equipment braces
guys, anchors, faults and all attachments appurtenances and appliances necessary or incidental to
the distribution and use of Telecommunications Services.
NN.GGG."Telecommunications sService" means the transmission of information by wire, radio,
optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general public.
For the purposes of this Chapter, "information" means knowledge or intelligence represented by
any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this
Chapter, "Telecommunications Service" excludes the over-the-air transmission of broadcast
television or broadcast radio signals.
9S.HHH."Telecommunications system" means a tangible facility that is used to provide one or
more Telecommunications Services, any portion of which occupies Public Rights-of-Way. The
term "Telecommunications System" by way of example, and not limitation, includes wires,
quipment cabinets, guys, conduit,radio transmitting towers,poles, other supporting structures and
associated and appurtenant Facilities used to transmit telecommunications signals. The term
'Telecommunications System" includes all devices mounted on electric utility poles in the Public
fights-of-Way through which Telecommunications Services are originated or terminated. A Cable
System is not a Telecommunications System to the extent that it provides only cable service and an
pen Video System is not a Telecommunications System to the extent that it provides only video
ervices.
20
III. "Termination"means the conclusion of a Franchise by any means including but not limited to
by expiration of its term, abandonment or Revocation.
JJJ. "Transfer"means any transaction in which: (1) all or a portion of any Facilities or any rights to
use or operate Facilities located in the Public Rights-of-Way are sold conveyed transferred
assigned, encumbered (except as set forth herein) or Leased in whole or in part directly o
indirectly, by one or more transactions to another Person whether voluntarily or by operation of
law or otherwise (but not including the sale of such Facilities that are removed)-, or (2) there is any
change, acquisition, or transfer in the identity of the Person in control of the Franchisee or any
Person that controls Franchisee including without limitation by forced or voluntary sale merger,
E consolidation, or receivership; or (3) the rights or obligations under the Franchise are sold
conveyed, transferred, assigned, assumed, encumbered (except as set forth herein) or Leased in
whole or in part, directly or indirectly, by one or more transactions to another Person whether
{
voluntarily or by operation of law or otherwise for purposes of clause (2) above any transfer or
cumulative transfer of a voting interest by a Person or group of Persons acting in concert of twenty
percent (20%) or more of Franchisee or Person that controls Franchisee or any change in the
managing general partners of a Franchisee is a change of control. "Transfer" does not include: (1)
a Lease to a UVPP pursuant to 47 U.S.C. 532 or 573• (2) the transmission of a commodity or
electronic signal using Facilities on a common carrier basis; (3) a Lease or other right to use a
Franchisee's pole or conduit Facilities pursuant to 47 U.S.C § 224 or 4)a pledge in trust mortgage
or other encumbrance against the Facilities or any portion thereof, given to a bona fide institutional
lender in connection with a loan or other financing required to secure the Construction Operation
f
n
or Repair of the Facilities ("Loan") provided that such Loan is subject to the rights and powers of
the City pursuant to the Franchise and applicable law, including without limitation the right of the
21
City to approve any transfer upon foreclosure. "Transferring," "transferor" and "transferee" shall
have correlative meanings.
nerE--ii: zn=r'change. aecluis; iEt-of-fan-s o1 Control t 1' FF .h;
:-Ri ht-
of Way Lieense lioldei-.oi- IntlSc--i�l-)e}'.i-1-1-i4 holder.. or
7
The � Right F Way y T ieense I„
E :..-�-r�i=i�-13-t-`i-ili�i-�E}r-H131i�it-h(�3'�i-1?L�fl-1}�t1"��"unEhi-�°,', 3ld ei'-E3i'
Ai rite«Do,.„,;+holdei-Lille tli h+ F Way y 7 ;eenso •Ai rite,Perm;+
E�C�irr@�-Pcr�rrc yr -��zcy-�r�zxrJ�f3i-
cw Leased. le—c r iii 1 t to ai e ei=� i# 3 i del t bit i t �vi�1 bt3 ��rc s�i i t1
+h„+ an)' ',•„*,S1�! ticiii.'{�cr cn� vc li ii3tEi st-Hl`�A �3 rf li}t chi i�2f�ii is �it�ll lti=f�1'
WE)fk;„n GOntf.,i "Ai'llim lit=iii tri i3 e t i -{l #i�3iti{�i3-
KKK. "Unaffiliated Video Program Provider” (UVPP) means a Person or entity that does not have
a Franchise but that delivers services using a cable service or other communications service(as that
term is used in 47 U.S.C. Section 542(h)) to Subscribers for which charges are assessed to
Subscribers but are not received by a Franchisee.
LLL. "Upstream Channel" means a Channel designed and activated to carry transmissions from a
point on the Cable Communications System, other than the headend to the headend or another
point on the Cable Communications System.
" Dom, Li a nr` ci �li�iTii�CI-E i�l�&E itr-E}i Ejl i 333E i�1 z�i i3 clttif 5 {E3i
-�-��r=i=r'riziiS-ta�vn-c}r-t13E--�i-� t-31'_.
Pul. oSt'.;sc rciiiLiE #3 Cdr izknSil iciiiii-i s eonzraslel ill ..pl, lthei,e, 'iii tht 6ti]la4 its=
e l--ti-comer:
i
22
F�`"
QQ-:MMM. "Usable sSpace"means the total distance between the top of a utility pole and the lowest
possible attachment point that provides the minimum allowable vertical clearance as specified in
any federal or State order or regulation.
RR.NNN."Use pPermit" means the legal authorization from the City, in addition to a Master Permit
or Franchise, to enter and use a specified portion of the Public Rights-of-Way for the purpose of
installing, repairing, or removing identified Facilities.
000. "User" means a Person or the City utilizing a Channel capacity orequipment and Facilities
for purposes of producing or transmitting material as contrasted with the receipt thereof in the
capacity of a Subscriber.
ISS.PPP. "Utility eEasement" means any easement owned by the City and acquired, established, !
dedicated or devoted for public utility purposes not inconsistent with Telecommunications
Facilities, excluding easements not specifically allowing License, Franchise or Lease holders.
i
TT ."Utility fFacilities" means the plant, equipment and property, including but not limited to
he poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or
Bove the surface of the ground within the Rights-of-Way of the City and used or to be used for the
urpose of providing utility and Telecommunications Services.
ARR. "Working EControl" means the ability to affect management decisions. It will be
resumed that voting interest of 20 percent or more is considered Working Control within the
eaning of this Chapter.
. . a
1.14.080 - Use Permits required.
23
Except as otherwise provided herein, a Right-of-Way License, Master Permit, Franchise or Lease
granted pursuant to this Chapter or otherwise authorized to use and occupy the Public Ri ht�=
Way, does not relieve the Grantee from its duty to comply with all the federal and State laws, and
City ordinances and regulations; and every Grantee must comply with the same. Likewise, the
rights granted under a permit are subject to the exercise of police and other powers the Cites
has or may later obtain, including but not limited to the power of eminent domain. Every Franchise
shall be deemed to incorporate all the requirements of the City Code.
i
Except as otherwise provided herein,the Grantee holdei of a Right-of-Way License,Master Permit,
Franchise or Lease granted pursuant to this Chapter or otherwise authorized to use and occupy the
Public Rights-of-Way, shall, in addition to said Right-of-Way License, Master Permit, Franchise,
Lease, or grant be required to obtain a Use Permit from the City pursuant to 11.08 PAMC before
performing any work in City Rights-of-Way. Pole attachments shall meet requirements of Chapter E
13.14 PAMC. No work, construction, development, excavation, or installation of any equipment or
Facilities shall take place within the Rights-of-Way or upon City Property until such time as the
Use Permit is issued except as provided in Titles 11 and 13 PAMC.
Construction, Operation, or Repair of any Facilities authorized under this Chapter shall not
commence until all required permits have been obtained from the proper City officials and all
required fees have been paid. All work performed will be performed in strict accordance with the
conditions of the permit. Upon order of the City, any work and/or construction undertaken that is
not completed in compliance with the Cit..�quirements, or which is installed without obtaining
necessary permits and approvals shall be removed.
24
F
11.14.120 - Conditions of Licenses, Franchises, Master Permits and Leases.
A. Purpose. A significant purpose of this Chapter is to set forth certain terms and conditions
which are common to all Right-of-Way Licenses, Franchises, Master Permits and Facilities Leases.
Except as otherwise provided in this Chapter or in such a Right-of-Way License, Franchises,
Master Permit or Facilities Lease, the provisions of this Chapter apply to all such Right-of-Way
Licenses, Franchises, Master Permits and Facilities Leases approved or granted by the City.
B. Rules and regulations of the City.
1. All Grantees are required to provide copies of any applicable certificates that authorize the
Grantee to provide Telecommunications Services as may be required by federal or State law.
:
2. All Grantees are required to cooperate with the City and with each other.
I (a) Each Grantee shall meet with the City, other Grantees and Users of the Rights-of-Way
annually or as determined by the City to coordinate construction in the Rights-of-Way.
(b) All construction locations, activities and schedules shall be coordinated, as ordered by the
Director, to minimize public inconvenience, disruption or damages.
3. All Grantees,before commencing any construction in the Rights-of-Way, shall comply with
all regulations of Chapter 19.122 RCW (One Call Locator Service).
4. The City reserves the right to require all Grantees to provide written confirmation:
(a) Sufficient for customary land survey and land title insurance purposes concerning the
location of their Facilities in Rights-of-Way; and
(b) Disclaiming any interest in Rights-of-Way where the Grantees have no Franchise to
construct or operate their Facilities.
5. In addition to the inherent powers of the City to regulate and control any Right-of-Way,
Master Permit or Lease it issues and those powers expressly reserved by the City, or agreed to and
provided for in any Right-of-Way License, Master Permit or Lease, the right and power is hereby
25
reserved by the City to promulgate such additional regulations as it may find necessary in the
exercise of its lawful powers giving due regard to the rights of Grantees.
6. Except as provided in this Chapter,the foregoing does not allow for amendment by the City
of material terms of any License, Master Permit or Lease it issues without the consent of the
Grantee.
C. Acceptance. No Right-of-Way License, Master Permit or Lease granted pursuant to the
provisions of this Chapter shall become effective unless and until the Grantee files with the City
Clerk its written acceptance of the License, Master Permit or Lease in a form satisfactory to the
City Attorney, together with the bonds and insurance policies required by this Chapter.
D. Safety requirements. Grantees,in accordance with applicable national, State and local safety
requirements, shall at all times employ ordinary care and shall install and maintain and use
commonly accepted methods and devices for preventing failures and accidents which are likely to
cause damage, injury or nuisance to the public. All structures and all lines, equipment and
connections in, over, under and upon the streets, sidewalks, alleys and Rights-of-Way or places of
a License, Master Permit or Lease area, wherever situated or located, shall at all times be kept and
maintained in a safe, suitable condition, and in good order and repair. If a violation of the National
Electrical Safety Code or other applicable regulation is found to exist, the City may, after
discussions with the Grantee, establish a reasonable time for a Grantee to make necessary repairs.
If the repairs are not made within the established time frame, the City may make the repairs itself
or have them made and collect all reasonable costs thereof from a Grantee.
E. Insurance. Unless otherwise provided in a License, Master Permit or Lease agreement, each
Grantee, as a condition of the License, Master Permit or Lease, shall secure and maintain the
following liability insurance policies insuring both the Grantee and the City and its elected and
appointed officers,officials,agents and employees as co-insureds. Grantees qualified to do business
with the State of Washington, as self-insureds shall also meet the requirements listed below:
1. Insurance required. A Franchisee (or those acting on its behalf) shall not commence
{
construction or operation of the system without obtaining insurance in amounts and of a type
satisfactory to the City. The required insurance must be obtained and maintained for the entire
26
period the Franchisee has Facilities in the Public Rights-of-Way. If the Franchisee its contractors
or subcontractors do not have the required insurance, the City may order such entities to stop
operations until the insurance is obtained and approved.
•oved.
2. Proof. Certificates of insurance, reflecting evidence of the required insurance and naming
the City as an additional insured, and other proofs as the City may find necessary, shall be filed
with the City. For Persons issued Franchises after the effective date of this Chapter, certificates
and other required proofs shall be filed within 30 days of the issuance of a Franchise prior to the
commencement of construction, once a year thereafter, and whenever there is any change in
coverage. For entities that have Facilities in the Public Rights-of-Way as of the effective date of
this Chapter, the certificate shall be filed within 60 days of the effective date of this Chapter,
annually thereafter, and whenever there is any change in coverage unless a pre-existing Franchise
provides for filing of certificates in a different manner. In the event that the insurance certificate
provided indicates that the insurance shall terminate or lapse during the term of the Franchise then
in that event, the Cable Communications System Operator shall furnish at least 30 days prior to the
expiration of the date of such insurance, a renewed certificate of Insurance as proof that equal and
like coverage has been obtained.
3. Certificate contents. All certificates shall contain a provision that provides the City and all
Additional Insureds for this work with written notice of any policy change or cancellation within
two business days of their receipt of such notice. Policies shall be issued by companies authorized
to do business under the laws of the State of Washington. Financial ratings of the insurer shall be
no less than "A" VII or better in the latest edition of"Bests Key Rating Guide" published by A.M.
Best Guide.
27
Ea
4. Insurance amounts. A Cable Communications System Operator (and those acting on its
behalf to construct or operate the system) shall maintain the following minimum insurance. The
City shall be named as an additional insured by endorsement on the general liability and automotive
policies; those insurance policies shall be primary and contain a cross-liability clause.
(a). Comprehensive general liability insurance to cover liability, bodily injury, and property
damage. Exposures to be covered are: premises, operations products/completed operations and
certain contracts. Coverage must be written on an occurrence basis, with the following limits of
liability of not less than:
Each Occurrence Annual Aggregate
Bodily Injury $5,000,000 $5,000,000
Property Damage $5,000,000 $5,000,000
Personal Injury $5,000,000
Completed Operations and Products Liability shall be maintained for two years after the
Termination of the Franchise(in the case of the Cable Communications System owner or Operator)
or completion of the work for the Cable Communications System owner or Operator(in the case of
a contractor or subcontractor).
Property Damage Liability Insurance shall include coverage for the following hazards: X -
explosion, C - Collapse, U - underground.
(b). Worker's Compensation insurance shall be maintained during the life of this contract to comply
with statutory limits for all employees and in the case any work is sublet each Cable
Communications System Operator shall require the subcontractors similarly provide workers'
compensation insurance for all the latter's employees unless such employees are covered by the
28
protection afforded by each Cable Communications System Operator. Each Cable
Communications System Operator and its contractors and subcontractors shall maintain during the
life of this policy employers liability insurance. Workers' compensation insurance shall include a
waiver of subrogation clause in favor of the City. The following minimum limits must be
maintained:
Workers' Compensation ........Statutory
Employer's Liability..............$ 1,000,000 per Occurrence
(c). Comprehensive auto liability
Each Occurrence Annual Aggregate
Bodily jury $3,000,000 $3,000,000
Property Damage $3,000,000 $3,000,000
coverage shall include owned, hired, and non-owned vehicles. In every Franchise agreement the
City shall reserve the right to require any other insurance coverage it deems necessary depending
upon exposures.
ttr-anc-e-v,,k4 limits not4es 4hja.
oi-am to 1T r
ifle-n"T 3 1
Ey-
��'�-t�fimebil�li-alai-1i�-1i�r•-Fx�-ntf��cxa-t�w�r��-lei-rc=tl
fc�r i li-Person-Z,nd S.3:0OO (40444}-i m-im-(�h-ae
45. Comprehensive form premises-operations, explosions and collapse hazard, underground
hazard and products completed hazard with limits of not less than $3,000,000.00.
-5.6 The liability insurance policies required by this subsection shall be maintained by the
Grantee throughout the term of the License, Master Permit, or Lease, and such other period of time
29
I
during which the Grantee is operating without a License, Master Permit, or Lease hereunder, or is
engaged in the removal of its Telecommunications Facilities. Each such insurance policy shall
contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the intention not to
renew be Stated until 90 days after receipt by the City, by registered mail, of a written notice
addressed to the Director of such intent to cancel or not to renew."
67. Within 60 days after receipt by the City of said notice, and in no event later than 30 days
prior to said cancellation or intent not to renew, the Grantee shall obtain and furnish to the City
replacement insurance policies meeting the requirements of this subsection.
F. General indemnification.No License,Master Permit or Lease shall be deemed to be granted
under this Chapter unless it includes an indemnity clause substantially conforming to the following:
( "The Grantee hereby releases, covenants not to bring suit,and agrees to indemnify,defend and hold
f
harmless the City, its officers, employees, agents and representatives from any and all claims, costs,
judgments, awards or liability to any Person, including claims by the Grantee's own employees to
which the Grantee might otherwise be immune under Title 51 RCW, arising from injury or death
of any Person or damage to property, of which the negligent acts or omissions of the Grantee, its
agents, servants, officers or employees in performing under this License, Master Permit, or Lease
are the proximate cause."
e
The Grantee further releases,covenants not to bring suit, and agrees to indemnify, defend, and hold
harmless the City, its officers and employees from any and all claims, costs,judgments, awards or
liability to any Person including claims by the Grantee's own employees, including those claims to
which the Grantee might otherwise have immunity under Title 51 RCW, arising against the City
solely by virtue of the City's ownership or control of the Rights-of-Way or other public properties,
by virtue of the Grantee's exercise of the rights granted herein, or by virtue of the City's permitting
the Grantee's use of the City's Rights-of-Way or other Public Property, based upon the City's
inspection or lack of inspection of work performed by the Grantee, its agents and servants, officers
or employees in connection with work authorized on the City's property or property over which the
City has control, pursuant to this License, Master Permit, or Lease or pursuant to any other permit
or approval issued in connection with this License, Master Permit, or Lease.
30
This covenant of indemnification shall include, but not be limited by this reference to, claims
against the City arising as a result of the negligent acts or omissions of the Grantee, its agents,
servants, officers or employees in barricading, instituting trench safety systems, or providing other
adequate warnings of any excavation, construction or work in any Public Right-of-Way or other
public place in performance of work or services permitted under this License, Master Permit, or
Lease.
No Franchise shall be valid or effective until and unless the City obtains an adequate indemnity
from the Franchisee. The indemnity must:
1. Release the City from and against any and all loss, damage, expense, cost (including without
limitation the cost of litigation), liability and responsibility in or arising out of the construction,
operation or maintenance of the Cable Communications System. Each Cable Communications
I
System Operator must further agree not to sue or seek any money or damages from the City in
connection with the above mentioned matters.
2. Indemnify, hold harmless, and defend the City, its elected and appointed officers, agents, and
employees, from and against any and all liability, loss, damage, cost, claims, demands, or causes of
action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees,
liabilities, damages, orders,judgments, or decrees sustained by the City or any third part,, arising
out of, or by reason of, or resulting from or of the acts, errors, or omissions of the Cable
Communications System Operator, or its agents, independent contractors, officers or employ
related to or in any way arising out of the Construction, Operation or Repair of the system.
3. Provide that the covenants and representations relating to the release, indemnification, and
hold harmless provision shall survive the term of the Franchise or other authorization and continue
in full force and effect as to the party's ponsibility to indemnify.
Inspection or acceptance by the City of any work performed by the Grantee at the time of
completion of construction shall not be grounds for avoidance of any of these covenants of
31
f
indemnification. Said indemnification obligations shall extend to claims which are not reduced to
a suit and any claims which may be compromised prior to the culmination or the institution of any
litigation.
In the event the Grantee refuses the tender of defense in any suit or any claim, said tender having
been made pursuant to the indemnification clauses contained herein, and said refusal is
subsequently determined by a court having jurisdiction(or such other dispute resolution entity that
the parties shall agree to decide the matter), to have been a wrongful refusal on the part of the
Grantee, then the Grantee shall pay all of the City's costs for defense of the action, including all
reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the City
of recovering under this indemnification clause.
The provisions of this subsection shall survive the expiration or Termination of the Franchise,
License, Master Permit or Lease agreement. this r ie Mast n t �
[ �zc@�i"�r, vra�cc�r�ri�i�-^o'i—rcase agreement-.
Notwithstanding any other provisions of this subsection, the Grantee shall assume the risk of
damage to its Facilities located in the City's Rights-of-Way, Rights-of-Way and easements from
activities conducted by the City, its officers, agents, employees and contractors. The Grantee shall
release and waive any and all claims against the City, its officers, agents, employees or contractors
for damage to or destruction of the Grantee's Facilities caused by or arising out of activities
s
E conducted by the City, its officers, agents, employees and contractors, in the Rights-of-Way,
Rights-of-Way and easements subject to this License, Master Permit or Lease, except to the extent
any such damage or destruction is caused by or arises from the negligence or willful conduct on the
part of the City, its officers, agents, employees or contractors.
The Grantee shall further agree to indemnify,hold harmless, and defend the City against any claims
for damages, including, but not limited to, business interruption damages and lost profits, brought
by or under Users of the Grantee's Facilities as the result of any interruption of service due to
damage or destruction of the User's Facilities caused by or arising out of activities conducted by
the City, its officers, agents, employees or contractors, except to the extent any such damage or
32
destruction caused by or arising from the negligence or willful conduct on the part of the City, its
officers, agents, employees or contractors, to the extent allowed by law.
G. When required by the provisions, Ecash deposit/performance bond. Every Grantee shall be
required to provide a cash deposit or performance bond to ensure the faithful performance of its
responsibilities. in accordance with the r nts of Chaptef! > L08 P n r ar
H. Tree trimming. Upon ten days' written notice provided to the Director, except in an
Emergency of imminent danger to Persons or property, the Grantee may trim trees or other
vegetation owned by the City or encroaching upon the Public Right-of-Way to prevent their
branches or leaves from touching or otherwise interfering with its wires. All trimming or pruning
within environmentally sensitive areas shall be subject to applicable requirements of Chapter 15.20
PANIC "Environmentally Sensitive Areas Protection." All trimming or pruning shall be at the sole
cost of the Grantee.The Grantee may contract for said trimming or pruning services with any Person
approved by the City.
I. Location of Facilities. All Facilities shall be constructed, installed, and located in
accordance with the following terms and conditions, unless otherwise specified in a Ffafleirise
License, Master Permit, or Facilities Lease:
1. Wherever a Grantee has existing underground duct or conduit with capacity available,
Grantee shall install its Telecommunications Facilities within such underground duct or conduit.
2. A Grantee with permission to install Overhead Facilities shall install its
Telecommunications Facilities on pole attachments to existing utility poles only and then only if
Surplus Space is available.
3. Whenever any existing electric utilities, Cable System, or Telecommunications Facilities
are located underground within a Right-of-Way of the City, a Grantee with permission to occupy
the same Right-of-Way must also locate its Facilities underground.
4. Whenever any new or existing electric utilities, Cable System, and/or Telecommunications
Facilities are located or relocated underground within a Right-of-Way of the City, a Grantee that
currently occupies the same Right-of-Way shall, at its own expense, relocate its Facilities
underground. Absent extraordinary circumstances or undue hardship as determined by the Director,
33
such relocation shall be made concurrently to minimize the disruption of the Rights-of-Way. No
extension granted by the Director under this subsection shall exceed a period of 12 months.
The Director may waive the requirements for location of Facilities under this Subsection, if the
Grantee demonstrates to the Director's satisfaction that such location requirements are
commercially unreasonable or if provisions of the Grantee's tariff filed with the Washington
Utilities and Transportation Commission otherwise control.
J. Interference with City Property and the Rights-of-Way. No Grantee may locate or maintain
its Telecommunications Facilities to unreasonably interfere with the use of City Property or the
s
s
Rights-of-Way by the City,by the general public or by other Persons authorized to use or be present'
in or upon the City Property and Rights-of-Way. Unreasonable interference includes disruption to
vehicular or pedestrian traffic on City Property or the Rights-of-Way, interference with other City
utilities, and such other activities that will present a hazard to public health, safety or welfare when
alternative methods of construction would result in less disruption. All such Facilities shall be
moved by the Grantee, at the Grantee's cost, temporarily or permanently, as determined by the
Director unless provisions of the Grantee's tariff filed with the Washington Utilities and
Transportation Commission otherwise control. If any Grantee's tariff or if a change in the State law
alters the responsibility for payment of relocation costs, then all affected Grantees shall comply
therewith.
K. Damage to property. No Grantee nor any Person acting on a Grantee's behalf shall take any
action or permit any action to be done which may impair or damage any City Property, Rights-of-
Way of the City, Other Ways or other property, whether publicly or privately owned, located in, on
or adjacent thereto.
L. Damage to Facilities. Unless directly and proximately caused by the willful, intentional,
grossly negligent or malicious acts of the City, the City shall not be liable for any damage to or loss
of any Telecommunications Facility upon City Property or within the Rights-of-Way of the City as
a result of or in connection with any public works, public improvements, construction, excavation,
grading, filling or work of any kind on such City Property or within the Rights-of-Way by or on
behalf of the City.
34
M. Maintenance of Facilities. Each Grantee shall maintain its Facilities in good and safe
condition and in a manner that complies with all applicable federal, State and local requirements.
N. Abandonment of Facilities.
1. If the Grantee abandons use of its cable,ducts or other Facilities authorized under a License,
Master Permit, or Lease, then the Facilities shall be removed from the Rights-of-Way or City
Property to the satisfaction of the City at the Grantee's cost. In lieu of removal the City may permit
the improvements to be abandoned in place in such a manner as the City may prescribe. Upon
permanent abandonment, the Grantee shall submit to the City a Proposal and instruments for
transferring ownership to the City.
2. Upon Revocation or Termination of a License, Master Permit or Lease, Grantee shall to the
satisfaction of the City and, without cost or expense to the City, within ten calendar days remove
its Facilities unless permitted by the City to be left in place in such manner as the City may
prescribe. If Grantee determines to remove such Facilities, or any portion thereof, then Grantee, at
its sole expense, shall restore the Rights-of-Way where disturbed by such removal under the
E
supervision and to the satisfaction of the City.
3. Any such Facilities, which are not removed within 120 days of either such date of
Termination or Revocation or of the date the City issued a permit authorizing removal, whichever j
is later, shall become the property of the City at the City's option. The Grantee shall notify the City
to record Facilities abandoned.
O. Emergency removal or relocation of Facilities. The City retains the right and privilege to
cut or move any Telecommunications Facilities located within the Rights-of-Way or City Property,
as the City may determine to be necessary, appropriate or useful in response to any public health or
safety Emergency with imminent substantial harm to life or property. The City shall not be liable
to any Service Provider, Non-Service Provider, or any other party for any direct, indirect or any
other such damages suffered by any Person or entity of any type as a direct or indirect result of the
City's actions under this subsection.
P. Relocation of Facilities.
35
I. The City may require Service Providers or Non-Service Providers to relocate authorized
Facilities within the Right-of-Way when reasonably necessary for construction, alteration, repair,
or improvement of the Right-of-Way for the purposes of public welfare, health, or safety. The City
shall notify both Service Providers and Non-Service Providers as soon as practicable of the need
for relocation and shall specify the date by which relocation shall be completed. In calculating the
date the relocation must be completed, the City shall consult with the affected Service Providers
and Non-Service Providers and consider the extent of Facilities to be relocated, the service's
requirements, and the construction sequence for the relocation, within the City's overall project
construction sequence and constraints,to safely complete the relocation. Each Service Provider and
Non-Service Provider shall complete the relocation by the date specified,unless the City establishes
E
a later date for completion, after a showing by the Service Provider or Non-Service Provider that
the relocation cannot be completed by the date specified using best efforts in meeting safety and
service requirements.
2. A Service Provider may not seek reimbursement for its relocation expenses from the City
under paragraph 1-of this subsection except in the limited circumstances as strietly provided for in
RCW 35.99.060.
3. The City may require the relocation of Facilities at the Service Provider's or Non-Service
Provider's expense in the event of an unforeseen Emergency that creates an immediate threat to the
public safety, health, or welfare.
4. A Cable Communications System Operator shall, by a time specified by the City, protect,
support, temporarily disconnect, relocate, or remove any of its property when required by the City
by reason of traffic conditions; public safety; Public Rights-of-Way construction and repair
(including regrading, resurfacing or widening); Public Right-of-Way vacation; construction,
installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other
type of government-owned system or utility, public work, public facility, or improvement; or for
any other purpose where the work involved would be aided by the removal or relocation of the
Cable Communications System. Collectively, such matters are referred to below as the "Public
Work."
5. Except in the case of Emergency, the City shall hall provide written notice describing where
the public work is to be performed at least one week prior to the deadline by which a Cable
36
Communications System Operator must protect, support, temporarily disconnect, relocate or
remove its Facilities. Such action on the part of the Franchisee shall be undertaken at no cost to the
City. Provided that, in an Emergency, or where a Cable Communications System creates or is
contributing to an imminent danger to health, safety, property, the City may protect, support,
temporarily disconnect, remove, or relocate any or all parts of the Cable Communications System
without further notice, and charge the Cable Communications System Operator for costs incurred.
Q. Movement for others.
1. To accommodate the Construction, Operation, or Repair of the Facilities of another Person
authorized to use the Public Rights-of-Way or Public Property, a Franchisee shall, by a time
specified by such Person, protect, support temporarily disconnect temporarily relocate or remove
its Facilities. The Franchisee must be given written notice describing where the Construction,
Operation or Repair is to be performed at least fifteen (15) days prior to the time by which its work
must be completed. The City resolve disputes as to responsibility for costs associated with
removal, relaying, or relocation of Facilities among entities authorized to install Facilities in the
streets or on Public Property if such entities are unable to do so themselves.
2. A Cable Communications System Operator shall, on the request of any Person holding a
valid permit issued by governmental authority, temporarily raise or lower its wires by a time
specified to permit the moving of buildings or other objects. A Cable Communications System
Operator shall be given not less than seven (7)dys advance notice to arrange for such temporary
wire changes. The expense of such temporary removal, relaying relocation or raising or lowering
of wires shall be paid by the Person requesting the same.
QR. Removal of unauthorized Facilities. Within 30 days following written notice from the City,
any Grantee that owns, controls or maintains any unauthorized Telecommunications System,
Facility or related appurtenances within the Rights-of-Way or City Property shall, at its own
expense, remove such Facilities or appurtenances from the Rights-of-Way or City Property. A
Telecommunications System or Facility is unauthorized and subject to removal in the following
circumstances:
1. Upon expiration or Termination of the Grantee's License, Master Permit, or Lease.
37
2. Upon abandonment of a Facility within the Rights-of-Way or City Property. Any property
of a Grantee shall be deemed abandoned if left in place 90 days after expiration or Termination of
a License, Master Permit or Lease.
3. If the system or Facility was constructed or installed without prior grant of a License,Master
Permit or Lease, unless said system or Facility was constructed or installed prior to the effective
date of this Chapter.
4. If the system or Facility was constructed or installed without prior issuance of a required
construction permit or Use Permit.
5. If the system or Facility was constructed or installed at a location not permitted by the
Grantee's License, Master Permit, or Lease.
The City may, in its sole discretion, allow a Grantee, or other such Persons who may own, control
(or maintain Telecommunications Facilities within the Rights-of-Way or City Property to abandon
P such Facilities in place. No Facilities of any type may be abandoned in place without the express
written consent of the City. Any plan for abandonment or removal of a Grantee's Facilities must be
first approved b the Director, and all necessary permits must be obtained prior to such work.
Y Yp P
Upon permanent abandonment of the Facilities in place, at the City's option, the property shall
become that of the City, and the Grantee shall submit to the Director an instrument in writing,
subject to approval by the City Attorney, transferring to the City the ownership of such Facilities.
The provisions of this subsection shall survive the expiration, Revocation, or Termination of a
License, Master Permit or Lease granted under this Chapter or under any other City approval.
R-.S. Failure to remove or relocate. If a Grantee is required to remove, relocate, change or alter
the Telecommunications Facilities constructed, operated and/or maintained hereunder and fails to
do so, the City may cause such to occur and charge the Grantee for the costs incurred.
S.T Duty to provide information. Within 30 days of a written request from the City,each Grantee
shall furnish the City with information sufficient to demonstrate:
1. That Grantee has complied with all requirements of this Chapter.
38
2. That all sales, utility and/or telecommunications taxes due the City in connection with the
Telecommunications Services and Facilities provided by the Grantee have been properly collected
and paid by the Grantee.
3. All books, records, maps and other documents, maintained by the Grantee for its Facilities
within the Rights-of-Way shall be made available for inspection by the City at reasonable times and
t
intervals.
Nothing in this subsection shall be construed to require a Grantee to violate State or federal law
regarding Subscriber privacy, nor be construed to require a Grantee to disclose proprietary or
confidential information without adequate safeguards for its confidential or proprietary nature or
unless required by State law.
T.0 Facilities maps. Each Grantee shall maintain accurate maps and improvement plans which
show the location, size, and a general description of all Facilities installed in the Public Rights-of-
Way and any power supply sources (including voltages and connections). Maps shall be based
upon post-construction inspection to verify location. Each Grantee shall provide a map to the City
showing the location of its Facilities, in such detail and scale as may be directed by the City Public
Works Director and update the map annually and whenever the Facility expands or is relocated.
Copies of maps shall be provided in hard copy and on disk, in a commercially available electronic
format specified by the City Public Works Director.
maps,Grantee shall pfevide the Gity with eopies of its eonstmetion plans. if the eonstruetion plans do
eonform with the City's guidelines for eommunieations f4eility installations, or- wfl-e-f-e
feasenably deter-mined by the Gity, the Grantee shall pfevide the City with additional
ineluding "as built" maps, showing the leeation and design attfibutes E)f its teleeemmunieations
faeilities within the publie rights E)f way. the Gity may use of diselase such infeffnation only as
allowed by law-.
U.V Assignments or Transfers of grant. Working Control of a Right-of-Way License, Master
Permit or Lease may not, directly or indirectly, be transferred, assigned or disposed of by sale, z
Lease, merger, consolidation or other act of the Grantee, by operation of law or otherwise, without
the prior written consent of the City, which consent shall not be unreasonably withheld or delayed
39
except as provided by ordinance and then only on such reasonable conditions as may be prescribed
therein.
1. The Grantee and the proposed assignee or transferee of the grant or system shall provide
and certify the following information to the City not less than 45 days prior to the proposed date of
Transfer:
(a) Complete information on the nature, terms and condition of the proposed Transfer or
assignment.
(b) All information required of a License,Master Permit or Lease Applicant pursuant to PAMC
11.14.100 with respect to the proposed transferee or assignee.
(c) All deposits or charges and Application Fees required pursuant to this Chapter.
2. Unless otherwise provided in a License, Master Permit or Lease, the Grantee shall
jreimburse the City for all direct and indirect costs and expenses reasonably incurred by the City in
considering a request to Transfer or assign a License, Master Permit or Lease. No assignment or
Transfer shall be deemed approved until all such costs and expenses have been paid.
3. Any Transfer or assignment of a License, Master Permit or Lease without prior written
approval of the City under this subsection or pursuant to a License, Master Permit or Lease
agreement shall be void and is cause for Revocation of the grant.
W. Transactions affecting control of grant. Any transactions, which singularly or collectively
result in a change of Working Control of the Grantee or the Working Control of a
elecommunications System,shall be considered an assignment or Transfer requiring City approval
ursuant to PAMC 11.14.100. Transactions between Affiliated entities are not exempt from City
pproval unless said Affiliated entities are named in the initial application.
Grantee shall within ten 10 calendar days notify the City prior to any proposed change in,
ransfer of, or acquisition by any other party of control of a Grantee's company. Every change,
Transfer, or acquisition of control of a Grantee's company shall cause a review of the proposed
Transfer. In the event the City denies its consent and such change, Transfer or acquisition of control
as been effected, the City may cancel the License, Master Permit or Lease. Approval shall not be
40
required for mortgaging purposes or if said Transfer is from a Grantee to another Person or entity
controlling, controlled by, or under common control with a Grantee.
W.X. Revocation or Termination of grant. A License, Master Permit, or Lease granted by the
City to use or occupy Rights-of-Way or City Property may be revoked for the following reasons:
1. Construction or operation in the Rights-of-Way or City Property without a License, Master
Permit, or Lease grant of authorization.
2. Construction or operation at an unauthorized location.
3. Any interconnection with the Telecommunications Facilities of other Telecommunications
carriers, Operators and providers that are not properly Licensed or permitted by the City.
4. Unauthorized substantial Transfer of control of Grantee.
f
5. Unauthorized assignment of a License, Franchise, Master Permit, or Lease.
6. Unauthorized sale, assignment or Transfer of a Grantee's License, Master Permit, or Lease,
assets, or a substantial interest therein.
7. Misrepresentation by or on behalf of a Grantee in any application or written or oral statement
upon which the City relies in making the decision to grant, review or amend any License, Master
Permit, or Lease pursuant to this Chapter.
8. Abandonment of Telecommunications Facilities in the Rights-of-Way or upon City
Property.
9. Failure to relocate or remove Facilities as required in this Chapter.
10. Failure to pay taxes, compensation, fees or costs when and as due the City.
11. Insolvency or bankruptcy of the Grantee.
12. Violation of any material provision of this Chapter.
13. Violation of the material terms of a License, Master Permit, or Lease agreement.
14. Violation of any State or federal law relating to use of Public Rights-of-Way by service
providers.
' 15. Violation of any applicable State or federal safety laws and standards.
41
16. Violation of any applicable City ordinances, construction codes, regulations or standards.
17. Failure to cooperate with the City to ensure that Facilities are installed,maintained,repaired
and removed within the Right-of-Way in such a manner and at such points so as to not
inconvenience the Public Use of the Right-of-Way or to adversely affect the public health, safety
and welfare.
18. Failure to obtain a required Use Permit or Right-of-Way construction permit before
constructing, installing, maintaining, repairing or removing identified Facilities.
X.Y. Notice and duty to cure. In the event that the Director believes that grounds exist for
Revocation of a License, Master Permit of, Lease, or Franchise, the City shall notify Franchisee or
Grantee in writing of any alleged violation("Violation Notice")of a Franchise or this Chapter. The
violation notice shall: (1) identify the violation; (2) direct the Franchisee or Grantee to cure the
violation or show cause why the violation cannot or should not be cured; and (3) state the time for
the Franchisee or Grantee's response, which shall be at minimum thirty (30) days from the date of
issuance of the violation notice, except for violations that present a danger to public health safety
or welfare, in which case the time for response may be shortened.
h �—,—,�i e=t(+& ;= rite n��tit #t1�c al pare rat ic3latio }pli c it1�
a-sh--)-rt�-(m"'s �k.fr r�#t�1 c � l �cra1 I cts �3i t1 �is}latic�n tin x3 liar}e-tom
providing the Grantee a reasonable period E)f time not exeeeding 30 days to furnish evidenee. Within
the time period designated for response the Franchisee or Grantee shall respond in writing to the
City indicating that: 1) the Franchisee or Grantee contests the violation notice and describing all
facts relevant to its claim; or (2) the Franchisee or Grantee has completely cured the violation in
which case the Franchisee or Grantee shall provide documentation demonstrating that the violation .
has been completely cured; or (3) the Franchisee or Grantee.has begun to correct the violation;
however,the violation cannot be corrected immediately despite the Cable Communications System
Operator's continued due diligence, in which case the Franchisee or Grantee shall describe in detail
the steps already taken and Operator's proposed plan and time schedule for completely curing the
violation. Correction of the violation is not complete until all damages and penalties owed are paid
in full.
i Ta i's bleiz el r nfl p dhif 1 p� s�%d-tc� tt�
th la4ou—mi�fn 1
42
2. 'I"hat rch ras the alleged 11 or 11OiW'k)mt 1-i11-nc;c—.
That it wou l be iii—the public
>?
Y--.Z. Hearing. In the event that a Grantee fails to provide evidence reasonably satisfactory to the
Director as provided in PAMC 11.14.120.X, the Director shall refer the apparent violation or non-
compliance to the Couneil City's Hearing Examiner for action to revoke in accordance with the
provisions of PAMC 11.14.120.2. The City shall provide the Grantee with notice and a reasonable
opportunity to be heard concerning the matter. If the Franchisee or Grantee_contests the violation
notice or the City determines that the Franchisee or Grantee has failed to completely cure the
violation, to submit an acceptable plan to cure the violation, or to work diligently to cure the
violation, the City shall schedule a hearing before the City's Hearing Examiner ("violation
hearing"). The City shall provide Cable Communications System Operator written notice of the
violation hearing at least twenty (20) days prior to the hearing ("Hearing Notice").
AA. The hearing notice shall indicate: (1) the time and place of the Violation Hearing-, (2) the
nature of the violation, and O the Franchisee or Grantee right to present oral and written testimony
at an open and public meeting_
BB. At the violation hearing,the City's Hearing Examiner shall hear and consider evidence from
the Franchisee or Grantee, City staff and members of the public regarding the alleged violation.
The Franchisee or Grantee, shall be given an opportunity present any and all evidence relating
to the alleged violation.
CC. If, based upon the evidence presented at the violation hearing, the City's Hearing Examiner
finds that the Franchisee or Grantee has violated its Franchise, this Chapter or any pplicable State
or federal law, the City's Hearing Examiner may issue an order assessing liquidated damages i
provided for by the Franchisee or Grantee.':,; Franchise, or, subject to Section 1.14.2 of this Cha1 te1
and the terms of the Franchisee or Grantee's Franchise revoke or shorten the Franchise.
i
43
DD. Revocation and Termination. The City's Hearing Examiner may revoke a Franchise or
reduce the term of a Franchise if it finds, after complying with procedures set forth above, that a
Franchisee or Grantee has violated this Chapter or its Franchise; has defrauded or attempted to
defraud the City or Subscribers; or has attempted to evade the requirements of this Chapter or its
Franchise. Except as to violations that are impossible to cure,and as provided in PAMC 11.14.120,
the Franchise may only be revoked if the Franchisee (A) was given notice of the default; and (B)
was given 30 days to cure the default;and(C)the Franchisee failed to cure the default,or to propose
a schedule for curing the default acceptable to the City where it is impossible to cure the default in
30 days.
EE. Exception for certain acts. No opportunity to cure is required for repeated violations, and
fraud and attempted fraud shall be deemed incurable. Further, the City may declare a Franchise
forfeited without opportunity to cure where a Franchisee (A) voluntarily stops providing service it
is required to provide; or (B) Transfers the Franchise without the prior consent of the City_
FF. Exception for bankruptcy. A Franchise will terminate automatically by force of law 120
calendar days after an assignment for the benefit of creditors or the appointment of a receiver or
trustee to take over the business of the Franchisee, whether in a receivership, reorganization,
bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the
Franchise may be reinstated within that 120 day period, if. (A) such assignment, receivership or
trusteeship has been vacated; or (B) such assignee, receiver or trustee has fully complied with the
terms and conditions of this Chapter and the Franchise, and has executed an agreement, approved
by any court having jurisdiction, assuming and nd agreeing to be bound by the terms and conditions
of this Chapter and the Franchise. In the event of foreclosure or other judicial sale of any of the
Facilities, equipment or property of a Franchisee, the City may revoke the Franchise following a
44
public hearing before the City's Hearing Examiner by serving notice upon the Franchisee and the
successful bidder at the sale in which event the Franchise and all rights and privileges thereunder
will be revoked and will terminate 30 calendar days after serving such notice unless: (A) the City
has approved the Transfer of the Franchise to the successful bidder, (B) the successful bidder
has covenanted and agreed with the City to assume and be bound by the terms and conditions of
the Franchise and this Chapter and the obligations and liabilities of its predecessor Franchisee
GG. Effect of Termination or forfeiture. Upon Termination or forfeiture of a Franchise whether
by action of the City provided above or by passage of time the Franchisee must stop using the
Cable Communications System for the purposes authorized by the Franchise The City may take
possession of some or all of Franchisee's Facilities or require the Franchisee or its bonding
e
rl g
company to remove some or all of the Franchisee's Facilities from the City, and restore affected
property to its same or better condition. This provision does not permit the City to remove Facilities
that are used to provide any non-cable service for which the Franchisee holds a valid Franchise
issued by the Cites for which the Franchisee is otherwise authorized by peration of State law to
use the Public Rights-of-Way to provide.
HH. Remedies cumulative. Remedies provided for under this Chapter or under a Franchise shall
I
be cumulative. Recovery by the City amounts under insurance the performance bond the
security fund or letter of credit does not limit a Franchisee's duty to indemnify the City; or relieve
a Franchisee of its Franchise obligations or limit the amounts owed to the City.
Z.H. Standards for Revocation or lesser sanctions. If the Gouneil City's Hearing Examiner
determines that a Grantee willfully violated or failed to comply with any of the provisions of this
Chapter or a License,Franchise or Lease granted under this Chapter, or through willful misconduct
or gross negligence failed to heed or comply with any notice given the Grantee by the City under
the provisions of this Chapter, then the Grantee shall, at the election of the City Council, forfeit all
45
rights conferred hereunder and the License, Master Permit, or Lease may be revoked or annulled
by the Council. The Council may elect, in lieu of the above and without any prejudice to any of its
other legal rights and remedies, to pursue other remedies, including obtaining an order from the
superior court having jurisdiction compelling the Grantee to comply with the provisions of this
Chapter and any License, Master Permit, or Lease granted hereunder, and to recover damages and
costs incurred by the City by reason of the Grantee's failure to comply. The Council shall utilize
the following factors in analyzing the nature, circumstances, extent and gravity of the violation and
in making its determination:
1. Whether the misconduct was egregious.
2. Whether substantial harm resulted.
f
3. Whether the violation was intentional.
4. Whether there is a history of prior violations of the same or other requirements.
5. Whether there is a history of overall compliance.
6. Whether the violation was voluntarily disclosed, admitted or cured.
A-A. JJ. Incorporation by reference. The provisions of this Chapter shall be incorporated by
reference in any License, Master Permit or Lease approved hereunder. The provisions of any
Proposal submitted and accepted by the City shall be incorporated by reference in the applicable
License, Master Permit, or Lease. In the event of any conflict between the Proposal, this Chapter,
and the License, Master Permit, or Lease, the License, Master Permit or Lease shall be the
3
prevailing document.
Section 3. The Port Angeles Municipal Code is hereby amended by adding a new Section, to
be known as Section 11.14.140, "General Provisions Applicable to All Grantees," to read as
follows:
46
11.14.140 - General Provisions Applicable to All Grantees
A. The captions to sections throughout this Chapter are intended solely to facilitate reading and
reference to the sections and provisions of this Chapter. Such captions shall not affect the meaning
or interpretation of this Chapter.
B. Calculation of time. Unless otherwise indicated when the performance or doing of any act
duty, matter, or payment is required under this Chapter or any Franchise and a period of time or
duration for the fulfillment of doing thereof is prescribed and is fixed herein the time shall be
computed so as to exclude the first and include the last day ff. f the prescribed or fixed period of time
C. Severability. If any term condition or provision of this Chapter shall to any extent be
held to be invalid or unenforceable by a valid order of any court or regulatory agency the remainder
hereof shall be valid in all other respects and continue to be effective In the event of a subsequent
change in applicable law so that the provision which had been held invalid is no longer invalid said
provision shall thereupon return to full force and effect without further action by the City and shall
thereafter be binding on the Franchisee and the City.
Section 4. The Port Angeles Municipal Code is hereby amended by adding a new Section to be
known as 11.14.150, "Applicability"to read as follows:
11.14.150. Applicability.
A. Sections 11.14.010 through 140 apply to Franchises and Cable Communications Systems
as well as Right-of-Way Licenses Franchises Master Permits Use Permits and Facilities Leases.
Sections 11.14 160 170 180 and 190 of this ordinance are additional provisions that apply
Mecifically to Cable Communications Systems. With regard to Cable System Franchises in the j
vent there is any conflict or apparent conflict between sections 11.14.010 through 140 and sections
11.14.160 through 180 the provisions in sections 11.14..160 through 190 shall control.
ection 5. The Port Angeles Municipal Code is hereby amended by adding a new Section to be
own as 11.14.160, to read as follows:
a
47
11.14.160—Television Cable Franchise required.
A. Franchise required. No Person may construct or operate a Cable Communications System
in the City without first obtaining a grant of a Franchise from the City pursuant to this Chapter.
B. Exceptions to Franchise requirement. The following Persons or entities shall not be required
to obtain a Franchise under this Title:
1. The City of Port Angeles,
2. A UVPP that is only delivering cable service or other communications service to
Subscribers.
C. Failure to obtain a Franchise. Consistent with the requirements of due process, any Person
who constructs or operates a Cable Communications System in the City without first obtaining a
s
Franchise as required by this Chapter may, in the City's discretion, be subject to:
1. Forfeiture,by peration of law, of the Person's Cable Communication System located in the
Public Rights-of-Way that are not authorized by an existing Franchise; and/or
2. A requirement that the Cable Communication System be removed, at such Person's cost,
and that penalties and damages allowed by law be paid.
D. Existing Franchises. Grantees of Franchises existing as of the effective date of this Chapter
shall, in addition to all the obligations and duties prescribed by the terms of their existing
Franchises, be subject to the substantive and procedural requirements herein, except as prohibited
by applicable law. Nothing herein is intended to invalidate a lawful, existing Franchise or to waive
any obligations imposed by such a Franchise, or deny any existing Franchisee of any contractual or
other rights it may have with respect to its existing Franchise. Notwithstanding the foregoing,
provisions of this Chapter that expressly refer to a "Franchise ram pursuant to this Chapter"
shall not apply to Franchises initially prior to the effective date of this Chapter.
E. Form of Franchise. A Franchise shall be issued in the form of written agreement, approved
by resolution of the City Council, and must be accepted by the Franchisee to become effective.
F. Filing an Application. A Person seeking to (1) obtain a Franchise; (2) Transfer a Franchise:
(3) extend the term of an existing Franchise; (4) renew a Franchise; or (5) modify an existing '
48
Franchise to add new services that are required to be authorized by a Franchise pursuant to this
Chapter, shall submit a signed original of its application and six (6) copies to the City Clerk. The
application must conform to all of the requirements of this Chapter. Requests for other types of
Franchise modifications may be processed by the City without an application, and submitted for
approval. However,nothing herein shall prevent the City from requiring an application in the event
the City determines,based on the nature of the requested modification,that the public interest would
best be served by the submission of an application pursuant to this Chapter.
G. Application Fee.
1. Reasonable Costs. An Applicant shall pay all reasonable costs
incurred by the City related to the processing of any application. Costs shall include, but not be
limited to, the costs of services rendered by any City employee, gent or representative including
consultants and attorneys.
2. The initial deposit of the Application Fee for the consideration of an application for'
issuance renewal Transfer, or modification of a Franchise shall be in the amount of$5,000.00,
which deposit shall be submitted with the application. The City of Port Angeles may, as costs are
incurred, draw upon the deposit to recover its administrative costs, including,but not limited to, the
reasonable cost of outside consultants retained by the City related to the City's consideration and
processing of a Franchise. The City, at any time may require the Applicant to deposit additional
sums if it appears that the initial deposit or subsequent deposits will be exhausted prior to the final '
action by the City relating to the consideration by the City of an application for issuance renewal
Transfer,or modification of a Franchise. The Applicant will not be entitled to further consideration
by the City of Port Angeles of its requested action until such time as the additional deposit required
by the City has been deposited with the City. In the event the amount of the deposit of an Applicant
is in excess of the amount of the administrative expenses of the City related to the action requested
the Applicant shall be entitled to a return of any such excess amount. In addition an Applicant that
is awarded a Franchise shall pay the City a sum of money sufficient to reimburse it for all
publication expenses incurred by it in connection with the granting of a Franchise or License. Such
payment shall be made to the Treasurer of the City within 30 days after the City furnishes the
Franchisee or Licensee with a statement of such expenses.
49
H. Nature of Franchise.
1. Scope. A Franchise rag nted pursuant to this Chapter shall authorize and permit a Franchisee
to construct, operate, maintain and repair a Cable Communications System, or an OVS to provide
cable service in the City, and for that purpose to erect, install, construct,repair,replace reconstruct
maintain Facilities appurtenant to such system in,on,over,under,upon across and along the Public
Rights-of-Way, and along such other Public Property that the City may authorize a Franchisee to
use. Rights granted may not be subdivided or subleased.
2. Nothing passes by implication. A Franchise shall not convey rights other than as expressly
stated in a Franchise agreement; no rights shall pass by implication.
3. Franchise not in lieu of other authorizations. A Franchise shall not include or be a substitute
for:
(a). compliance with requirements for the privilege of transacting and carrying on a business
within the City, including, but not limited to, complying with the conditions the City may establish
before constructing Facilities for, or providing non-cable services;
(b). any permit, agreement or authorization required in connection with operations on or in
Public Rights-of-Way or Public Property, including by way of example and not limitation permits
for construction, repair and maintenance activities in the Right-of-Way;
(c). any permits or agreements for occupying any other property of the City or private entities
to which Access is not specifically granted by the Franchise.
4. Franchise not a grant of property rights. A Franchise does not convey title equitable or
legal, in the Public Rights-of-Way.
5. Franchise non-exclusive. No Franchise shall be exclusive, or prevent the City from issuing
other Franchises or authorizations, or prevent the City from itself constructing__operating or
repairing its own Cable Communications System with or without a Franchise.
6. Franchise term. Every Franchise shall be for a term of years which term shall be 10 years
unless a Franchise specifies otherwise.
7. Costs borne by Franchisee. Unless otherwise specifically stated in a Franchise or required
by law, all acts which a Franchisee is required to perform under the Franchise or applicable law
must be performed at the Franchisee's expense.
50
8. Failure to perform. If a Cable Communications System Operator fails to perform work that
it is required to perform within the time provided for performance, the City may perform the work
and bill the Operator therefor. The Operator shall pay the amounts billed within 30 days.
I. Administration of ordinance; adoption of regulations.
1. Adoption of regulations. The City of Port Angeles may from time to time adopt regulations,
including but not limited to Customer Service Standards, to implement the provisions of this
Chapter. This Chapter, and any regulations adopted pursuant to this ordinance, are not contracts
with any Franchisee, and may be amended at any time.
2. Delegation. The City Manager or his/her designees are hereby authorized to administer the
provisions of this Chapter and any Franchise issued pursuant thereto, and to provide any notices
(including noncompliance notices) and to take any action on the City's behalf that may be required
hereunder or under applicable law.
j 3. No waiver. The failure of the City, upon one or more occasions, to exercise a right or to
require compliance or performance under a Franchise or any other applicable law shall not be
E
deemed to constitute a waiver of such right or a waiver of compliance or performance unless such
right has been specifically waived in writing_
4. Administration of Public,Educational and Government Access. The City may designate one
or more entities, including itself, to control and manage the use of public, educational and
Governmental Access Channels, Facilities and equipment.
J. Transfers.
1. Prior approval required. Every Franchise shall be deemed to be held in trust, and to be
personal to the Franchisee. Any Transfer that is made without the prior approval of the City shall
be deemed invalid and a material violation of the Franchise.
2. Exception for mortgages. Notwithstanding any other provision of this Chapter, pledges in
trust or mortgages of the assets of a Cable Communications System to secure the Construction,
Operation, or Repair of the system may be made without application and without the City's prior
consent. However, no such arrangement may be made without the City's prior consent if it would
in any respect under any condition: (A)prevent the Cable Communications System Operator or any
successor from complying with the Franchise or applicable law; or (B) permit a third party to
succeed to the interest of the Operator, or to own or control the system, without the prior consent
51
of the Citeses Any mortgage, pledge or Lease shall be subject to and subordinate to the rights of the
City under any Franchise, this Chapter, or other applicable law.
3. Transferee Acceptance Required. No City consent to a Transfer shall be valid unless the
transferee has, in writing, accepted and agreed to abide by all of the terms and conditions of the
Franchise and this Chapter and to assume all obligations and liabilities thereunder, whether arising
before or after the date of Transfer, of its predecessor Franchisee.
K. General conditions upon construction, operation and repair and use of the Public Rights-of-
Way.
1. Franchisee must follow local rules. The construction, operation and repair of Cable
Communications Systems shall be performed in compliance with Chapters 13.10 13.12 and 13.14
PAMC, and applicable provisions of PAMC Title 11, and all other applicable laws ordinances
departmental rules, regulations, and practices affecting such system. By way of example and not
limitation, local rules include zoning and safety codes construction standards regulations for
providing notice to Persons that may be affected by ystem construction and directives governing
the time, place and manner in which Facilities may be installed repaired and maintained in the
Public Rights-of-Way. Persons engaged in the Construction Operation or Repair of
Communications Facilities shall exercise reasonable care in the performance of all their activities
and shall use commonly accepted methods and devices for preventing failures and accidents that
are likely to cause damage,injury, or nuisance to the public or to property.
2. No permit without Franchise. A Franchise is required before a permit may be issued for
work associated with the Construction, Maintenance, or Operation of a Cable Communications
System. Any permit issued for such work to a Person providing cable service that does not hold a
Franchise shall vest no rights in the permittee• the permit may be revoked at will and the permittee
shall remove all Facilities installed under the permit upon the City's demand.
3. No interference. Interference with the use of the Public Rights-of-Way y others including
others that may be installing Cable Communications Systems must be minimized. The City may
require a Person using the Public Rights-of-Way to cooperate with others through joint trenching
and other arrangements to minimize adverse impacts on the Public Rights-of-Way.
f
4. Plans For and Publicizing Work. Work shall be publicized as the City may direct from time
to time. The publication of work may be used to notify the public and Operators of other
52
Communications Systems, of the impending work, in order to minimize inconvenience and
disruption to the public.
(a). Each Cable Communications System Operator shall provide the City a plan for any initial
system construction, or for any substantial rebuild, upgrade or extension of its Facility, which shall
show its timetable for construction of each phase of the project, and the areas of the City that will
be affected.
(b). The City may from time to time, when the City receives an application for a permit to use
a particular route, or upon the City's own initiative, designate by published order a route or
proposed route for installation of Cable Communications System Facilities and may (1) require all
Persons who wish to emplace underground Facilities along that route or any part thereof to install
them during a specified period, and(2) otherwise prohibit emplacement of such Facilities along the
route or any part thereof for 24 months or after such other, longer period as is necessary to protect
the public interest.
5. Prompt repairs. Any and all Public Rights-of-Way, other Public Property, or private ,
property that is disturbed or damaged during the Construction Operation Maintenance or repair of
a Cable Communications System shall be promptly repaired by the Operator at the Operator's cost.
Public Property and Public Rights-of-Way must be restored to the satisfaction of the City and to a
condition as good or better than before the disturbance or damage occurred. No tree trimming
be performed without the permission of the City and other affected authorities and any tree
trimming must be performed in strict accordance with the City Code.
6. System subject to inspection. Every Cable Communications System shall be subject to
inspection and testing by the City. Each Operator must respond to requests for information
regarding its system and plans for the system as the City may from time to time issue including
requests for information regarding its plans for construction operation and repair and the purposes
for which the plant is being Constructed, Operated, or Repaired.
7. Underground services alert. Each Operator of a Cable Communications System that places
Facilities underground shall be a member of the regional notification center for subsurface
installations (Utility Notification Center) and shall field mark the locations of its underground
Communications Facilities upon request. The Operator shall identify the location of its Cable
Communication System for the City at no charge.
i
53
8. Plan for construction. Every Franchisee shall specify for the City a construction schedule
that will apply to o any required construction, upgrade or rebuild of the Cable Communications
System. The schedule shall provide for the prompt completion of the project and shall show its
timetable for construction of each phase of the project with benchmarks for deliverables and the
areas of the City that will be affected. The City shall have the right to impose penalties on the
Operator for a failure to meet the accepted timetable and benchmarks.
9. Use of Facilities b t� he City. The City shall have the right to install and maintain free of
charge, upon any poles or in any conduit owned by a Franchisee any wire and pole fixtures that do
not unreasonably interfere with the Cable service operations of the Franchisee
10. Construction bond. Every Operator of a Cable Communications System shall obtain and
maintain a bond to ensure the faithful performance of its responsibilities under this Chapter and any
Franchise. The amount of the bond shall be set in the City Franchise but shall not be less than 10
percent(10%) of the estimated cost of constructing a new system (in the case of a new build) and
shall include a sufficient amount to cover the removal of Facilities and/or restoration of City
Facilities within the Right-of-Way. In the case of an existing system the bond shall not be less than
$250,000 and shall also include a sufficient amount to cover the removal of Facilities and/or
restoration of City Facilities within the Right-of-Way. The bond is not in lieu of any additional
bonds that may be required through the permitting process. The bond shall be in a form acceptable
to the City Attorney. Bonds must be obtained prior to the effective date of any Franchise Transfer
or Franchise renewal, unless a Franchise specifically provides otherwise.
11. Security fund. Every Cable Communications System Operator shall establish and maintain
a cash security fund or provide the City an irrevocable letter of credit in the amount of$100,000 to
secure the payment of fees owed, to secure any other performance promised in a Franchise and to
pay any taxes, fees, penalties or liens owed to the City. The letter of credit shall be in a form and
with an institution acceptable to the City. Should the City draw upon the cash security fund or letter
of credit, the Cable Communications System Operator shall, within 10 days, restore the fund or the
letter of credit to the full required amount. This security fund/letter of credit may be waived or
reduced by the City for a Franchisee where the City determines in its discretion that a particular
Franchisee's operations are sufficiently limited that a security fund/letter of credit is not necessary
�1 to secure the required performance. The City may from time to time require a Franchisee to change
54
the amount of the required security fund/letter of credit to reflect changed risks to the City and to
the public, including delinquencies in taxes or other payments to the City. The cash security fund
or letter of credit must be obtained prior to the effective date of any Franchise Transfer or Franchise
renewal, unless a Franchise specifically provides otherwise.
L. Books and Records.
1. Generally. Each Cable Communications System Operator shall provide the City Access to,
and permit copying of, books and records related in whole or in part to the Construction Operation
or Repair of the Cable Communications System, or a group of systems of which the system is a part
that may be relevant to the City's monitoring and enforcement of the Operator's Franchise or this I
Chapter, so that the City may inspect and copy these books and records. The records shall include
but are not limited to, revenue records and other records related to compliance with any provision
of this Chapter or a Franchise. A Franchisee is responsible for obtaining or maintaining the
necessary possession or control of all such books and records, so that it can produce the documents
upon request. Books and records must be maintained for a period of 5 years except that a Franchise
may pecify a shorter period for certain categories of voluminous books and records where the
i information contained therein can be derived simply from other materials. The phrase books and
records" shall be read expansively to include information in whatever format stored.
2. Production. Books and records requested shall be produced to the City by a time and at a
location in the City designated by the City Manager. However, if the requested books and records
are too voluminous, or for security reasons the Franchisee reasonably believes they cannot be
copied and moved, then the Franchisee may request that the inspection and if necessary, copying
take place at some other location mutually agreed to by the City and the Franchisee provided that
(1) the Franchisee must make necessary arrangements for copying documents selected by the City
after its review; and(2)the Franchisee must pay all travel and additional copying expenses incurred
by the City (above those that would have been incurred had the documents been produced in the
City) in inspecting those documents or having those documents inspected by its designee.
M. Reports.
1. Obligation to submit. The City Manager may from time to time direct a Franchisee to prepare
reports and to submit those reports by a date certain, in a format prescribed by the City Manager,
in addition to those required by this Chapter.
55
2. Annual reports. Unless an exemption is granted by the City Mang"er, no later than 90 days
after the end of the Operator's fiscal year, a Franchisee shall submit the following information:
(a). A fully audited or certified revenue report from the previous calendar year for the Cable
Communications System and a certified statement setting forth the computation of Gross Revenues
used to calculate the Franchise Fee for the preceding year and a detailed explanation of the method
of computation showing (i) Gross Revenues by category (e Basic Service pay, paay-per-view,
advertising, installation, equipment late charges miscellaneous other)-, and (ii) what if any
deductions were made from Gross Revenues in calculating the Franchise Fee(e.g., bad debt credits
and refunds), and the amount of each deduction
(b). A report showing the following on a quarterly basis for the most recently completed fiscal
year:
(i). the number of service calls (calls requiring a truck roll) received during he prior
quarter and the percentage of service calls compared to the Subscriber base-, and
(ii). the total estimated hours of known outages as a percentage of total hours of operation
An outage is a loss of sound or video on any signal or a significant deterioration of any signal
affecting two or more Subscribers.
(c). An ownership report indicating all Persons who at the time of filing control or own an
interest in the Franchisee of ten percent 10%) or more
3. Contemporaneous Reports. Within 10 days of their receipt or (in the case of documents
created by the Operator or its Affiliate) filing a Franchisee shall provide the City with copies of-
(a). notices of deficiency or forfeiture related to the operation of the system; and
(b). any request for protection under bankruptcy laws or any judgment related to a declaration
of bankruptcy by the Franchisee or by any partnership or corporation that owns or controls the
Franchisee directly or indirectly.
N. Other Records Required Unless the City waives the requirement a Franchisee shall at all
times maintain:
1. Complaint records. Records of all complaints received their nature and resolution The
term"complaints"refers to complaints about any aspect of the Franchisee's operations or customer
service.
2. Outage records. Records of outages known to the Franchisee their cause and duration
56
3. Complaint response. Records of service calls for repair and maintenance indicating the
date and time service was requested, the date of acknowledgment and date and time service was
scheduled (if it was scheduled), and the date and time service was provided and (if different) the
date and time the problem was solved.
4. Installation records. Records of installation/reconnection and requests for service extension
indicating date of request, date of acknowledgment and the date and time service was extended.
5. Customer service. Records sufficient to show whether the Franchisee has complied with each
customer service standard that applies to it.
O. Privacy. A Franchisee shall take all reasonable steps required so that it is able to provide
reports, books and records to the City, including by providing appropriate Subscriber privacy
notices. Each Franchisee shall be responsible for redacting data that applicable law prevents it from
providing to the City. Nothing in this section shall be read to require a Franchisee to violate State
or federal Subscriber privacy laws. Notwithstanding the foregoing and unless applicable law
entitles the Franchisee to withhold such information from the City, a Franchisee is not entitled to
withhold or redact any information on the grounds that it contains proprietary or confidential
information.
P. Procedures for paying Franchise Fees and fees in lieu of Franchise Fees.
1. Fees paid quarterly. The Franchise Fee or fee in lieu of Franchise Fee in the amount of
amounts and on the terms set out in the Franchise shall be paid quarterly unless otherwise specified
in a Franchise. Payment for each quarter shall be received by the City not later than 45 days after
the end of each calendar qua rter.
2. Quarterly statement. Unless a Franchise provides otherwise a Franchisee or other entity
subject to a fee, shall file with the City within 45 days of the end of each calendar quarter a statement
showing Gross Revenues during the preceding quarter and the number of Subscribers served
3 Acceptance of payment not a release No acceptance by the City of any payment shall be
construed as an accord that the amount paid is in fact the correct amount nor shall such acceptance
of such payment be construed as a release of any claim the City may have for additional sums
payable.
4. Fee Not in Lieu of Taxes. Neither the Franchise Fee nor the fee paid in lieu of the Franchise
Fee, is a payment in lieu of any tax fee or other assessment of general applicability (including any
57
such tax, fee or assessment imposed on both utilities and Operators or their services, but not
including a tax, fee, or assessment which is unduly discriminatory gainst Operators or cable
Subscriber(s)).
5. Failure to Pay Franchise Fee. In the event that a fee payment is not received by the City on
or before the due date set forth, or in a Franchise, or the fee owed is not fully paid, the Person
subject to the fee will be charged interest from the due date at an interest rate equal to three percent
(3%) above the rate for three-month Federal Treasury Bills at the most recent United States
TreasurDepartment sale of such Treasury Bills occurring prior to the due date of the Franchise
Fee pant.
6. Final Statement of Gross Revenues. Within 90 days of the date a Franchisee ceases
operations under a Franchise (whether because of Franchise Termination, Transfer, bankruptcy or
for any other reason), the Franchisee shall file a final statement of Gross Revenues covering the
period from the beginning of the calendar year in which the operations ceased to the date operations
ceased. The statement shall contain the information and be certified as required by
j Section 1.16.3.(A.).
i
Section 5. The Port Angeles Municipal Code is hereby amended by adding a new Section to be
known as 11.14.170, "Special Rules Applicable to Cable Systems" to read as follows:
11.14.170 Special Rules Applicable to Cable Systems.
A. Applications - Generally.
1. Application required. An application must be filed for an initial and renewal Cable System
Franchise, or for approval of a Transfer.
2. Application content. The City Manager y specify the information that must be provided
in connection with an application, and the form in which the information is to be provided. At a
minimum each application must identify the Applicant, show that the Applicant is financially,
technical) and qualified to construct,maintain and operate the Cable System, contain a pro
forma showing capital expenditures and expected income and expenses for the first five years the
Applicant is to hold the Franchise, and show that the Applicant is willing to comply with its
Franchise obligations. In addition, any application for an initial or renewal Franchise or rebuild of
58
the Applicant's system and/or Facilities must describe in detail the Cable System that the Applicant
proposes to build show where it will be located set out the system construction schedule, and show
that the Applicant will provide adequate Channels, Facilities and other support for public,
educational and Government Use (including institutional network use) of the Cable System. The
detailed description of the physical Facilities proposed shall include at least the following:
(a). A description of the Channel capacity, technical design,performance characteristics,
headend, PEG Access (and institutional network, if required) Facilities and equipment;
(b). The location of proposed facility and facility design, including a description of the miles
of plant to be installed,and a description of the size of equipment cabinets,shielding and electronics
that will be installed along plant route, the power sources that will be used and a description of
the noise, exhaust and pollutants, if any, that will be generated b, the he operation of the same;
3
provided, however, that, if some of the descriptive data is not available at the time of application,
the Franchise may be issued subject to conditions that the data be filed and approved by the City
before construction begins and that the Franchise will be deemed to be forfeited if the data is not
supplied and approved; provided, further,that the foregoing proviso does not authorize the grant of
a Franchise where there is not sufficient information to appraise the impact of the Applicant's
Proposal;
(c). A map of the general route the facility will follow; a designation of the portions of the
system that will be placed above ground and the portions that will be placed underground, and the
I construction techniques that the Applicant proposes to use in installing the he system above ground
and underground; a schedule for construction of the facility, describing when and where
construction will begin how it will proceed, benchmarks indicating the schedule completion of
portions of the system and when construction will be completed; and the expected effect on Rim
of-Way usage, including information on the ability of the Public Rights-of-Way to accommodate
the proposed system;
(d). A description where appropriate of how services will be converted from existing Facilities
to new Facilities, and what will be done with existing Facilities;
(e). A demonstration of how the Applicant will reasonably meet the future cable-related needs
and interests of the community, including g escriptions of the capacity, Facilities and support for
public educational and governmental use of the system including institutional networks)
59
Applicant proposes to provide and why Applicant believes that the Proposal is adequate to meet the
future cable-related needs and interests of the community;
(f). A demonstration of the financial qualifications of the Applicant including at least the
following:
(i) The proposed rate structure, including_projected charges for each service tier,
installation, converters, and all other proposed equipment or services;
(ii) A statement regarding t�pplicant's financial ability to complete the construction
to meet the time frame proposed and to operate the Cable System proposed certified by the
Applicant's chief financial officer;
(iii) A demonstration of the Applicant's technical ability to construct and/or operate the
proposed Cable System;
(iv) A demonstration that the Applicant is leery qualified, which proof must include a
demonstration that the Applicant:
(A) Has received, or is in a position to receive, necessary authorizations from
State and federal authorities;
(B) Has not engaged in conduct (fraud, racketeering, violation of antitrust laws,
consumer protection laws, or similar laws) that might lead the City to conclude that the Applicant
cannot be relied upon to comply with requirements of a Franchise or provisions of this Chapter, or
to deal honestly with the City or its residents;
(C) Is willing to enter into a Franchise, to pay required compensation and to
abide by the provisions of applicable law, including those relating to the Construction, Operation
or Repair of its Facilities, and has not entered into any greement that would prevent it from doing
so; and
(g) The Applicant must not have submitted an application for an initial or renewal Franchise to
the City, which was denied on the ground that the Applicant failed to propose a Cable System
meeting the cable-related needs and interests of the community, or as to which any challenges to
such franchising decision were finally resolved (including any appeals) to the Applicant,
within three years preceding the submission of the application;
(h). The extent that the Applicant is in any respect relying on the financial or technical resources
of another Person, including another Affiliate; proofs should be provided for that Person;
60
(i) A description of the Applicant's prior experience in Cable System ownership construction
and operation, and identification of cities and counties in Washington in which the Applicant or
any of its principals have a cable Franchise or any interest therein provided that an Applicant that
holds a Franchise for the City and is seeking renewal of that Franchise need only provide this
information for other cities and counties in Washington where its Franchise is scheduled to expire
during the 12-month period prior to the date its application is submitted to the City and for other
cities and counties in Washington where its Franchise had been scheduled to expire during the
12-month period after the date its application is submitted to the City. If an Applicant has no other
Franchise in Washington, it shall provide the information for its operations in other states; and
(j) An affidavit or declaration of the Applicant or authorized officer thereof certifying the truth
and accuracy of the information in the application, and certifying that the application meets all
requirements of applicable law.
3. To be accepted for filing, an original and six copies of a complete application must be
submitted. All applications shall include the names and addresses of Persons authorized to act on
behalf of the Applicant with respect to the application.
4. An Applicant (and the transferor and transferee, in the case of a Transfer application) shall
respond to any request for information from the City, by the time specified by the City_
5. Incomplete applications. An application may be rejected if it is incomplete or if the
response to the City's requests for information is not timely and complete.
B. Application for an Initial Franchise or Renewal Franchise.
1. Scope. This section establishes additional provisions that apply to an application for an
initial Franchise, or a renewal Franchise application that is not governed by 47 U.S.C. §546(a(g),
2. Process. Any Person may pply for an initial or renewal Franchise by submitting an
application therefore on that Person's own initiative,or in response to a request for Proposals issued
by the City. If the City receives an unsolicited application it may choose to issue a request for
additional Proposals, and require the Applicant to amend its Proposal to respond thereto. The City
shall promptly conduct such investigations as are necessary to act on an application.
3. Consideration of application. In determining whether to grant a Franchise the City may
consider:
61
(a). the extent to which an Applicant for renewal has substantially complied with the applicable
law and the material terms of any existing cable Franchise;
(b). whether an Applicant's quality of service under its existiny, Franchise, including signal
quality,response to customer complaints, billing practices, and the like has been reasonable in light
of the needs of the community;
(c). where the Applicant has not previously held a Cable System Franchise in the City,whether
the Applicant's record in other communities indicates that it can be relied upon to provide high-
quality service throughout any Franchise term;
(d). whether the Applicant has the financial, legal, and technical ability provide the services,
Facilities, and equipment set forth in an application, and to satisfanany minimum requirements
established by the City;
(e). whether the Applicant's application is reasonable to meet the future cable-related needs and
interests of the City, taking into account the cost of meeting such needs and interests,
(f). whether issuance of a Franchise is in the public interest considering the immediate and
future effect on the Public Rights-of-Way, Public Property, and private property that will be used
by the Applicant's Cable System;
(g). whether issuance of the Franchise would reduce or increase competition in the provision of
cable service in the City; and
(h). such other matters as the City is authorized or required to consider.
4. Issuance of Franchise. If the City determines that issuance of a Franchise would be in the
public interest considerinjz the factors described above, it may offer a Franchise agreement to the
Applicant. No Franchise shall become effective until the Franchise is unconditionally accepted by
the Applicant, approved by the City Council, and the Franchise agreement is signed by both parties.
C. Application for Renewal Franchise Filed Pursuant to 47 U.S.C. §546
1. Scope. This section establishes additional provisions that apply to applications for renewal
governed by 47 U.S.C. §546(a)-(g).
2. Process. A Franchisee that intends to exercise rights under 47 U.S.C. § 546(a)-g) shall
s
submit a notice in writing to the City in a timely manner clearly stating that it is activating the
procedures set forth in those sections. The City shall thereafter commence any proceedings that
62
mqy be required under federal law, and upon completion of those proceedings, the City may issue
a request for renewal Proposals and an application may be submitted for renewal. The City may
preliminarily deny the application by resolution, and if the application is preliminarily denied, the
City may conduct such proceedings and by resolution establish such procedures and appoint such
individuals as may be necessary to conduct any proceedings to review the application.
D. Application for Transfer.
1. Scope. This section establishes additional provisions that apply to applications for Transfer
approval.
2. Information. An application for Transfer must contain all the information required by the
City Manager, Section A. 2, and all information required by any FCC Franchise Transfer form.
3. Consideration of application. In determining whether a Transfer application should be
granted, denied, or granted subject to conditions, the City may consider the legal, financial, and
technical qualifications of the transferee to operate the Cable System in compliance with the terms
and conditions of the Franchise and applicable law; whether the transferor Franchise is in
I
compliance with its Franchise; whether the transferee owns or controls any other Cable System in
the City, whether operation by the transferee may eliminate or reduce competition in the delivery
of cable service in the City; and whether operation by the transferee or approval of the Transfer
would otherwise adversely affect Subscribers, the public, or the City's interest under this Chapter,
the Franchise, or other applicable law. The proposed transferee shall pay all reasonable costs
incurred by the City in reviewing and evaluating�pplications.
4. Minimum conditions. In order to obtain approval of a Transfer, an Applicant must show,
at a minimum, that: the transferee is qualified; the Transfer will not adversely affect the interests of
Subscribers, the public, or the City; and that all Franchise non-compliance issues have been
resolved or, alternatively, that the transferee will assume all liability for or such Franchise non-
compliance issues, known or unknown, arising before the date of the Transfer. No Transfer
application shall be granted unless the transferee agrees in writing that it will abide by and accept
all terms of this Chapter and the Franchise, and that it will assume all of the obligations, liabilities,
and responsibility for all acts and omissions, known and unknown, of its predecessor Franchisee,
whether arising before or after the date of the Transfer, for all purposes.
E. Qualifications of Applicant.
63
I. Standards.
(a). The Applicant must be willing to comply with the provisions of this Chapter and ap lip cable
laws; and to comply with such requirements of a Franchise as the City lawfully require.
(b). The Applicant must not have had any Cable System or OVS Franchise validly revoked
(including any appeals) y the City within 3 years preceding the submission of the application.
(c). The Applicant must not have had an application to the City for an initial or renewal Cable
System Franchise denied on the ground that the Applicant failed to propose a Cable System meeting
the cable-related needs and interests of the community, or as to which any challenges to such
franchising decision were finally resolved (including any appeals) adversely to the Applicant
within 3 years preceding the submission of the application-, and must not have had an application
for an initial or renewal OVS Franchise denied on any ground within 3 years of the application.
(d). The Applicant shall not be issued a Franchise if, at any time during the 10 years preceding
the submission of the application, Applicant was convicted of fraud racketeering anticompetitive
actions, unfair trade practices or other conduct of such character that the Applicant cannot be relied
upon to deal truthfully with the City and the Subscribers or to substantially comply with its
obligations.
(e). Applicant must have the necessary authority under Washington and federal law to operate
a Cable System, or show that it is in a position to obtain that authority.
(D. The Applicant shall not be issued a Franchise if it files materially misleading information
in its application or intentionally withholds information that the Applicant lawfully is required to
provide.
O. For purposes of paragraphs B through O of this Section the term Applicant includes any
Affiliate of Applicant. Provided,however, an Applicant shall be provided a reasonable opportunity
to show that a Franchise should issue even if the requirements of paragraph B.3.C.(iv)(B) are not
satisfied,by virtue of the circumstances surrounding the matter and the steps taken b theApplicant
to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the
Applicant's current principals or the remoteness of the matter from the operation of a Cable System.
(h). Franchise Fee. A Cable System Operator shall pay to the City a Franchise Fee in an amount
equal to 5% of Gross Revenues, or such other amount as may be specified in the Franchise;
provided, however, that if the Franchise specifies an amount that amount shall be subject to a
64
increase should federal limits on fee payments be eliminated or changed and other Operators are
subject to a higher fee.
(i). Bundled Services. In the event that the Franchisee, during the term of the Franchise,
offers bundled, tied, or combined cable services (which are subject to the Franchise Fee) with non-
cable services (which may not be subject to the Franchise Fee) to Subscribers, the combined
revenues from such bundled services shall be allocated in proportion to the standalone rates or
prices for each individual bundled service advertised by the Franchisee through its marketing
[ materials or on its published rate card. In the event the Franchisee does not advertise or publish
k separate standalone prices for any or all the individual services in the bundled service, the
( percentage that the price for the combined services is discounted from the regular retail rates of the
individual standalone services shall be pro-rated across all of the services in the bundled package;
provided, however, that the net revenues derived from services subject to mandatory tariff rates
imposed by the Washington Public Utilities Commission(or other governmental entity having such
authority) shall be deducted from the combined bundled service revenue to determine the revenue
subject to the Franchise fee. As an example, a Franchisee may offer a"bundle"of video, voice and
data services for a flat fee of $75.00 where the standalone retail rate for each of the services
purchased on an individual basis would equal $100.00. Assuming that there is no service subject
to the mandated tariff rate, the Franchisee would apply a twenty-five percent (25%) discount to
each service in the bundle. Thus if the Franchisee's standalone retail rate for the cable service
portion of the bundle were $50.00, for Franchise fee computation purposes Grantee would
recognize cable service revenue in the amount of$37.50 and pay a Franchise fee on that revenue.
(ii). The definition of gross revenue is to be as inclusive as possible consistent with
existing applicable law. If a change in federal law occurs subsequent to the effective date of this
Chapter, such change shall not impact the Gross Revenues definition in such a way to reduce Gross
Revenues, unless the change in law specifically_preempts the affected portion of the definition
above.
F. No exclusivity. A Franchisee may not require a Subscriber or a building owner or manager
to enter into an exclusive contract as a condition of providing or continuing service. However,
nothing herein prevents a Franchisee from entering into an otherwise lawful, mutually desired
65
exclusive arrangement with a building owner or manager of a multiple dwelling unit or commercial
Subscriber.
G. Rate regulation and consumer protection.
1. All rates subject to regulation. The City may regulate the Operator's rates and charges, to
the extent it is not prohibited from doing so by law. The City will regulate rates in accordance with
FCC rules and regulations, where applicable. Except to the extent FCC rules provide otherwise,
all rates and charges that are subject to regulation, and changes in those rates or charges must be
approved in advance. The City Manager may take any required steps to file complaints, toll rates,
issue accounting orders or take any other steps required to comply with FCC rate regulation rules.
The City Council shall be responsible for issuing rate orders that establish rates or order refunds.
2. No rate discrimination. Except to the extent preempted by federal or State law,an Operator
is prohibited from discriminating in its rates or charges or from granting undue preferences to any
Subscriber, potential Subscriber, or group of Subscribers or potential Subscribers; provided,
I
however,that a Franchisee may offer temporary,bona fide promotional discounts in order to attract
or maintain Subscribers, so long as such discounts are offered on a non-discriminatory basis to
3
1 similar classes of Subscribers throughout the Franchise Area; and a Franchisee may offer discounts
for the elderly, the disabled, or the economically disadvantaged, and such other discounts as it is
expressly entitled to provide under federal law, if such discounts are applied in a uniform and
consistent manner.
3. Redlining prohibited. An Operator shall not deny Access or charge different rates to any
group of Subscribers or potential Subscribers because of the income of the residents of the local
area in which such _group resides.
4. Customer service.
(a) Each Operator must satisfy FCC, State, and the City's cable customer service standards and
consumer protection standards. The City cable customer service standards may be adopted by
resolution of the City Council. In the case of a conflict among standards, the stricter standard shall
apply to the full extent permitted by
(i). For violation of cable customer service standards, penalties will be imposed as
follows: I
66
(b) Two hundred dollars ($200) for each day of each material breach, not to exceed six hundred
dollars ($600) for each occurrence of material breach.
(c) If there is a subsequent material breach of the same provision within twelve (12) months,
four hundred dollars ($400) for each day of each material breach, not to exceed twelve hundred
($1200) for each occurrence of the material breach.
(d) If there is a third or additional material breach of the same provision within twelve 12
months of the first,one thousand dollars($1000)for each day of each material breach,not to exceed
three thousand dollars ($3,000) for each occurrence of the material breach.
(iii) Any penalty assessed under this section will be reduced dollar for dollar to the extent
any liquidated damage provision of a Franchise imposes a monetary obligation on a Franchisee for
the same customer service failures.
Section 6. The Port Angeles Municipal Code is hereby amended b ay dding a new Section to be
jknown as 11.14.180, "Open Video Systems" to read as follows:
i
11.14.180 Open Video Systems.
A. Additional definitions.
1. OVS Agreement means a contract entered into in accordance with the provisions of this
Chapter between the City and an OVS Franchisee setting forth the terms and conditions under which
the OVS Franchise will be exercised.
B. Applications for Grant or Renewal of Franchises.
1. Initial and renewal Franchise: application.
(a). A written application shall be filed with the City for grant of an initial or renewal OVS
Franchise.
(b). To be acceptable for filing, a signed original of the application shall be submitted togethe
with 6 copies. The application must conform to any applicable request for Proposals, and contain
all information required. All applications shall include the names and addresses of Persons
authorized to act on behalf of the Applicant with respect to the application.
(c). Contents of Applications. The City Manager may specify the information that must be
provided in connection with a request for Proposals or an application for an initial or renewal
67
Franchise. At a minimum, each application must: identify the Applicant,where it plans to construct
its system, and the system construction schedule, show that the Applicant will provide adequate
Channels, Facilities and other support for public, educational and Government Use (including
institutional network use) of the OVS; and show that the Applicant is financially, technically and
legally qualified to construct and operate the OVS. The application must contain the following
information;
(i). Identity of the Applicant; the Persons who exercise Working Control over the Applicant;
and the Persons who control those Persons, to the ultimate parent.
(ii). A Proposal for construction of the OVS that includes at least the following_
(1) A description of the services that are to be provided over the facility,
(2) Identification of the area of the City to be served by the proposed system, including a
description of the proposed Franchise Area's boundaries.
(3) The location of proposed facility and facility design, including a description of the miles
of plant to be installed,and a description of the size of equipment cabinets shielding and electronics
that will be installed along the plant route, the power sources that will be used and a description of
the noise, exhaust and pollutants, if any, that will be generated by the operation of the same.
(4) A map of the route the facility will follow a designation of the portions of the system
that will be placed aboveground and the portions that will be placed underground and the
construction techniques that the Applicant proposes to use in installing the system aboveground and
underground; a schedule for construction of the facility, describing when and where construction
will begin, how it will proceed, benchmarks for completion of phases, and when it will be
completed; expected effect on Rights-of-Way usage including information on the ability of the
Public Rights-of-Way to accommodate the proposed system, including, as appropriate given the
system proposed, an estimate of the availability of space in conduits and an estimate of the cost of
any necessary rearrangement of existing Facilities.
(5) A description, where appropriate, of how services will be converted from existing
Facilities to new Facilities, and what will be done with existing Facilities.
(6) Evidence satisfactory to the City that the Applicant has the financial resources to
complete the proposed project, and to construct, operate and repair the proposed facility over the
68 °
Franchise term. It is not the intent of the City to require an Applicant to prove that the services it
proposes to offer will succeed in the marketplace.
(7) Evidence satisfactory to the City that Applicant is technically qualified to construct,
operate and repair the proposed facility. At a minimum, the Applicant must show that it has
experience or resources to ensure that work is to be performed adequately, and can respond to
emergencies during and after construction is complete.
(8) Evidence satisfactory to the City that the Applicant is legally qualified, which proo
must include a demonstration that the Applicant:
(A) Has received, or is in a position to receive, necessary authorizations from State and
federal authorities;
(B) Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer
protection laws, or similar laws) that allows City to conclude the Applicant cannot be relied upon
to comply with requirements of Franchise, or provisions of this Chapter;
(C) Is willing to enter into a Franchise, to pay required compensation and to abide by the
provisions of applicable law, including those relating to the construction operation or maintenance
of its Facilities, and has not entered into any agreement that would prevent it from doing so;
(D). An affidavit or declaration of the Applicant or authorized officer thereof certifying the
truth and accuracy of the information in the application, and certifying that the application meets
all requirements of applicable law.
(E). To the extent that the Applicant is in any respect relying on the financial or technical
resources of another Person, including another Affiliate, the proofs should be provided for thad
Person. An Applicant will be presumed to have the requisite financial, or technical or legal
qualifications to the extent such qualifications have been reviewed and approved by a State agency
of competent jurisdiction; or if Applicant is a holder of a Franchise in the City for a Cable System
or Open Video System, and conduct under such other Franchise provides no basis for additional
investigation.
C. Procedure for Applying for Grant of a Franchise.
1. A Person may apply for an initial or renewal Franchise on its own initiative or in response
to a request for Proposals. Upon receipt of an application, the City shall promptly proffer the
Li Applicant a proposed OVS agreement, which shall be mailed to the Person requesting its issuance
69
t'
and made available to any other interested party. The City may request such additional information,
as it deems appropriate.
2. An Applicant shall respond to requests for information completely, and within the time
directed by the City, and must strictly ply with procedures, instructions, and requirements the
City may establish.
3. An application may be rejected if it is incomplete or the Applicant fails to follow procedures
or respond fully to information requests.
D. Evaluation.
1. In evaluating a Franchise application, the City may consider the following_
(a) The extent to which the Applicant has substantially plied with the applicable law and
the material terms of any existing City OVS Franchise;
(b) Whether the Applicant has the financial, technical and legal qualifications to hold an OVS
Franchise;
(c) Whether the application satisfies any minimum requirements established by the City for, or
will otherwise provide adequate public, educational, and governmental use capacity, Facilities, or
financial support including with respect to institutional networksh
(d) Whether issuance of a Franchise would require replacement of property or involve
disruption of property, public services, or use of the Public Rights-of-Way
(e) Whether the approval of the application may eliminate or reduce competition in the delivery
of cable service in the City.
E. Issuance. If the City finds that it is in the public interest to issue a Franchise considering
the factors above, and such other matters as it is required or entitled to consider, and subject to the
Applicant's entry into an appropriate OVS agreement, it shall issue a Franchise. Prior to deciding
whether or not to issue a Franchise, the City may hold one or more public hearings or implement
other procedures under which comments from the public on an application may be received.
F. Legal qualifications. In order to be legally qualified:
1. The Applicant must be willing to o comply with the provisions of this Chapter and applicable
laws,and to comply with such requirements of an OVS agreement as the City may lawfully require.
2. The Applicant must not hold a Cable System Franchise, or have pending an application for
a Cable System Franchise.
70
3. The Applicant must not have had any cable system or OVS Franchise validly revoked
(including any appeals) by the City within 3 years preceding the submission of the application.
4. The Applicant may not have had an application for an initial or renewal Cable System
Franchise to the City denied on the ground that the Applicant failed to propose a Cable System
meeting the cable-related needs and interests of the community, or as to which any challenges to
such franchising decision were finally resolved (including any appeals) adversely to the Applicant,
within 3 years preceding the submission of the application.
5. The Applicant may not have had an application for an initial or renewal OVS Franchise
denied on any grounds within 3 years of the applications.
6. The Applicant shall not be issued a Franchise if, at any time during the 10 e�preceding
the submission of the application, Applicant was convicted of fraud, racketeering, anticompetitive
actions, unfair trade practices or other conduct of such character that the Applicant cannot be relied
upon to deal truthfully with the City and the Subscribers or to substantially comply with its
obligations,
7. Applicant must have the necessary authority under Washington and federal law to operate
an OVS, and must be certified by the FCC under Section 653 of the Cable Act, 47 U.S.C. 573.
8. The Applicant shall not be issued a Franchise if it files materially misleading information
in its application or intentionally withholds information that the Applicant lawfully is required to
provide.
9. For purposes of this section, the term Applicant includes any Affiliate of Applicant.
Provided, however, an Applicant shall be provided a reasonable opportunity to show that a
Franchise should issue even if the requirements of paragraphs B through M are not satisfied, by
virtue of the circumstances surrounding the matter and the steps taken by the Applicant to cure all
harms flowing therefrom and prevent their recurrence, the lack of involvement of the Applicant's
principals, or the remoteness of the matter from the operation of a Cable System.
G. Transfers.
1. City Approval Required. No Transfer shall occur without prior written notice to and
approval of the City_
i
2. Application.
71
(a). A Franchisee shall promptly notify the City of any proposed Transfer, and submit an
application for its approval.
(b). The City may specify information that must be provided in connection with a Transfer
application. At a minimum, an application must: describe the entities involved in the transaction
and the entity that will hold the Franchise; describe the chain of ownership before and after the
proposed transaction; show that the entity that will hold the Franchise will be legally, financially,
and technically qualified to do so; attach complete information on the proposed transaction,
including the contracts or other documents that relate to the proposed transaction, and all
documents, schedules,exhibits, or the like referred to therein; and attach any shareholder reports or
filings with the Securities and Exchange Commission ("SEC") that discuss the transaction.
(c). For the purposes of determining whether it shall consent to a Transfer, the City or its, gents
may inquire into all qualifications of the prospective transferee and such other matters as the City
may deem necessary to determine whether the Transfer is in the public interest and should be
' approved, denied, or conditioned. If the transferee or Franchisee refuses to provide information,
or provide incomplete information, the request for Transfer may be denied.
H. Determination by the City_
I 1. In deciding whether a Transfer application should be granted, denied or granted subject to
conditions, the City may consider the legal, financial, and technical qualifications of the transferee
to operate the OVS;whether the incumbent OVS Operator is in compliance with its OVS agreement
and this Chapter and, if not, the proposed transferee's commitment to cure such noncompliance;
whether the transferee owns or controls any other OVS or Cable System in the City, and whether)
operation by the transferee may eliminate or reduce competition in the delivery of cable service in
the City; and whether operation by the transferee or approval of the Transfer would adversely wl
Subscribers, the public, or the City's interest under this Chapter, the OVS agreement, or other
applicable law.
2. In order to obtain approval of a Transfer, an Applicant must show, at a minimum, that: the
transferee is qualified; the Transfer will not adversely affect the interests of Subscribers, the public,
or the City; and that non-compliance issues have been resolved. No application shall be rg a
unless the transferee agrees in writing that it will abide by and accept all terms of this Chapter and
the Franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and
72
omissions, known and unknown, of the previous Franchisee, whether arising before or after the
Transfer, for all purposes. The proposed transferee shall pay all reasonable costs incurred by
City in reviewing and evaluating�pplications.
I. Minimum requirements.
1. PEG Access. No OVS Operator shall be issued a Franchise or commence construction of
an OVS system, until (A) it agrees to match in all respects the highest PEG obligations borne by
any Franchised Cable System Operator in the City-, or B) it agrees to PEG obligations acceptable
to the City.
2. Institutional network. Any OVS Operator that constructs an I-Net shall (A) match in all
respects the highest institutional network obligations borne by any Franchised Cable Systems
Operator in the City; or (B) agree to alternative institutional network obligations acceptable to the
City.
3. Construction Provisions. Every OVS agreement shall specify the construction schedule
that will apply to any required construction, upgrade, or rebuild of the OVS. The schedule shall
provide for prompt completion of the project, considering the amount and type of construction
required.
4. Testing. Each OVS Operator shall perform at its expense such tests as may be necessary
to show whether or not it is in compliance with its obligations under this Chapter or a Franchise.
5. Consumer protection provisions. Every Franchisee must satisfy customer service
consumer protection requirements established from time to time under State or local law and
applicable to OVS.
J. Special Termination rules. If a Franchisee's FCC OVS certification is revoked or otherwise
terminates as a result of the passage of time or as a matter of law, the City may revoke the OVS
Franchise after a hearing. The OVS Franchise may also be revoked if federal regulations or statutory
provisions governing OVS are declared invalid or unenforceable, or are repealed.
K. Rate regulation. The City may regulate a Franchisee's rates and charges except as
prohibited by law,and may do so by amendment to this Chapter, separate ordinance,by amendment
to an OVS agreement, or in any other lawful manner.
L. Fee in lieu of Franchise Fee.
73
I. OVS Operators. In lieu of the Franchise Fee, an OVS Franchisee shall pay a fee of 5% of
the Gross Revenues of the Franchisee, its Affiliates or any OVS Operator of the OVS.
2. Persons leasing OVS capacity.
(a). A Person leasing capacity from an OVS Operator, other than a Person whose revenues are
included in the payment made in paragraph 1, immediately above shall pay the City a fee in lieu
of the Franchise Fee in the amount of five percent(5%) of the Gross Revenues of such Person.
(b). Notwithstanding the foregoing where the OVS Franchisee charges an entity, other than an
Affiliate, to use its OVS (the "use payments"); and that entity recovers those use payments through
charges to its Subscribers that are included in the entity Person's Gross Revenues; and that Person
fully recovers the use payments through the charges to its Subscribers and pays a fee on those
charges pursuant to paragraph 1, immediately above, then Franchisee may deduct from its Gross
Revenues the use payments it receives from that Person.
M. Exclusive contracts. A Franchisee may not require a Subscriber or a building owner or
manager to enter into an exclusive contract as a condition of providing or continuing service nor, '
subject to applicable law, may a Franchisee enter into any arrangement that would effectively
prevent other Persons from using the OVS to compete in the delivery of cable services with a
I
Franchisee or its Affiliates.
� i
Section 7. The Port Angeles Municipal Code is hereby amended by adding a new Section to be '
known as 11.14.190, "Miscellaneous"to read as follows:
11.14.190 Miscellaneous.
A. Connections to Cable System; use of antennae.
1. Subscriber right to attach. To the extent consistent with federal law, Subscribers shall have I.
the right to attach VCR receivers, and other terminal equipment to a Franchisee's Cable System,
Subscribers also shall have the right to use their own remote control devices and converters and
Other similar equipment.
2. Removal of existing antennae. A Franchisee shall not, as a condition of providing service
require a Subscriber or potential Subscriber to remove any existing antenna or disconnect an
antenna except at the express direction of the Subscriber or potential Subscriber, or prohibit
74
installation of a new antenna, provided that such antenna is connected with an appropriate device
and complies with applicable law.
B. Discrimination prohibited.
1. No retaliatory actions. A Cable Communications System Operator shall not discriminate
among Persons or the City or take any retaliatory action against a Person or the City because of that
entity's exercise of any right it may have under federal, State, or local law, nor may the Operator
require a Person or the City to waive such rights as a condition of taking service.
2. Employment and hiring practices. A Cable Communications System Operator shall not
refuse to employ, discharge from employment, or discriminate against any Person in compensation
or in terms, conditions, or privileges of employment because of race, color, creed, national origin,
� sex, sexual orientation, age, disability, religion, ethnic background, or marital status. A Cable
Communications System Operator shall comply with all federal, State, and local laws and
regulations governing equal employment opportunities, and hiring practices, as the same may
amended from time to time.
!
C. Transitional provisions.
1. Persons operating without a Franchise. The Operator of any Cable Communications
System facility installed as of the effective date of this Chapter, for which a Franchise is required
under this Chapter, shall have three months from the effective date of this Chapter to file one or
more applications for a Franchise. Any Operator timely filing such an application under this
Section 4.6.1 shall not be subject to a penalty for failure to have such a Franchise so long as said
application remains pending; provided, however, nothing herein shall relieve any Cable
Communications System Operator of any liability for its failure to obtain any permit or other
. authorization required under other provisions of the City Code, and nothing herein shall prevent the
E
City from requiring removal of any Facilities installed in violation of the City Code.
! 2. Persons holding Franchises. Any Person holding an existing Franchise for a Cable
Communications System may continue to operate under its existing Franchise to the conclusion of E
its present term (but not any renewal or extension thereof) with respect to those activities expressly
authorized by the Franchise; provided that, such Person shall be subject to the other provisions of
this Chapter to the extent permitted by
75
3. Persons with pending applications. Pending applications shall be subject to this Chapter. A
Person with a pending application shall have 30 days from the effective date of this Chapter to
submit additional information to comply with the requirements of this Chapter governing
applications.
D. Relation to Title 11 of the City Code.
1. This Chapter shall apply to Cable Communications Systems and Cable Communications
System Operators in lieu of the following provisions of PAMC Title 11: 11.14.010, 11.14.020,
11.14.080, 11.14.120, 11.14.140, 11.14.170, 11.14.180, and 11.14.190. Except as provided in the
preceding sentence, PAMC Title 11 shall apply to all Cable Communications Systems and Cable
Communications System Operators,and PAMC Title 11 shall apply fully,without these limitations,
to the extent any Cable Communications System Operator uses its system to provide any non-cable
services.
Section 8 - Corrections. The City Clerk and the codifiers of this ordinance are authorized
to make necessary corrections to this ordinance including, but not limited to, the correction
of the scrivener's/clerical errors, references, ordinance numbering, section/subsection numbers and
any references thereto.
Section 9 - Severability, If any provisions of this Ordinance, or its application to any Person or`
circumstances,are held invalid,the remainder of the Ordinance,or application of the provisions of the
Ordinance to other Persons or circumstances, is not affected.
Section 10-Effective Date. This Ordinance,being an exercise of a power specifically delegated to
the City legislative body, is not subject to referendum. This ordinance shall take effect five (5) 1
days after passage and publication of an approved summary thereof consisting of the title.
f
76
PASSED by the City Council of the City of Port Angeles at a regular meeting of said Council
held on the day of February,2016.
r•ick Downie, Mayor
APPROVED AS TO FORM: at
t
William E. Bloor, City Attorney
ATTEST: l
I
ennif r Veneklasen, City Clerk
PUBLISHED: 6tWay, of ud Z-< < ZOI b
By Summary
i
J
77
Summary of Ordinance Adopted by the
Port Angeles City Council on
February 17, 2016
Ordinance No. 3550
AN ORDINANCE regulating the occupancy and use of Public Rights-of-Way by Television
Cable Systems and Open Video Systems, providing for establishment of customer service
standards; establishing Franchise and licensing requirements for Operators of such systems and
prescribing terms, and conditions for and upon the construction, maintenance, and repair of such
systems; amending Chapters 11.08 and 11.14 of the Port Angeles City Code, all relating to
Television Cable Systems and Open Video Systems.
The full texts of the Ordinances are available at City Hall in the City Clerk's office, on the City's
website at www.cityofpa.us, or will be mailed upon request. Office hours are Monday through
Friday 8:00 a.m. to 5:00 p.m.
Jennifer Veneklasen
City Clerk
Published: February 21, 2016