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