Chapter 5.48 CATV FRANCHISE

It shall be unlawful to engage in or commence construction, operation or maintenance of a cable communications system without a franchise issued under this chapter. The council may, by ordinance, award a nonexclusive franchise to construct, operate and maintain a cable communications system within all of the city to any person, whether operating under an existing franchise or not, who makes application for authority to furnish a cable communications system which complies with the terms and conditions of this chapter; provided, that this section and CMC 5.48.030 and 5.48.040 shall not be deemed to require the grant of a franchise to any particular person or to prohibit the council from restricting the number of franchisees should it determine such a restriction would be in the public interest.

Any franchise granted pursuant to this chapter shall be nonexclusive and shall not preclude the city from granting other or further franchises or permits, or preclude the city from using any roads, rights-of-way, streets or other public properties, or affect its jurisdiction over them or any part of them, or limit the full power of the city to make all necessary changes, as the city in its sole discretion shall decide, including the dedication, establishment, maintenance and improvements of all new rights-of-way and thoroughfares and other public properties of any type. [Ord. 1010 § 2(a), 1986.]

5.48.020 Definitions.

For the purposes of this chapter, the words set out in this section have the following meanings:

(1) “Access channels” means free composite channels to be used for educational purposes and by the government and other public agencies and/or their representatives.

(2) “Applicant” means any person or entity that applies for a franchise.

(3) “Basic services” means those broadcast and nonbroadcast services provided by the cable operator at the lowest monthly charge and any other distant retransmission and/or satellite services selected by the franchisee.

(4) “CATV,” “cable television system” or “system” means a system of antennas, cables, wires, lines, towers, transmission lines, equipment or facilities, designed and constructed for the purpose of producing, receiving, transmitting, amplifying, scrambling and distributing audio, video and other forms of electronic or electrical signals located in whole or in part in the city.

(5) “Channel” means a single path or section of the spectrum which carries a television signal.

(6) “City” means the city of Clarkston, a municipal corporation of the state of Washington.

(7) “Converter” means an electronic device which allows for reception and selection of signals distributed over the system on frequencies that are not receivable on the ordinary television receiver.

(8) “Council” means the present governing body of the city or any future board constituting the legislative body of the city.

(9) “FCC” means the Federal Communications Commission, a regulatory agency of the United States government.

(10) “Franchise” means the nonexclusive right or authority to construct, operate and maintain a cable television system by use of city-owned rights-of-way, easements or other publicly owned properties.

(11) “Franchisee” or “operator” means the person, firm or corporation to whom or which a franchise, as defined in subsection (10) of this section, is granted by the council under this chapter, and the lawful successor, transferee or assignee of said person, firm or corporation.

(12) “Gross revenues” means revenue received by the franchisee for basic and premium services provided to subscribers including converter rental and installation charges and not including any taxes on services furnished by the franchisee, imposed directly or indirectly on any subscriber by the city, county, state or other governmental unit, and collected by the franchisee for such entity, or revenues derived from a feed originating inside the city and passing through the city, destined for a location outside the city.

(13) “Installation” means the connection of the system from feeder cable to subscribers’ terminals.

(14) “Institution” means a building or buildings where service may be utilized in connection with business, trade, profession, public agency or service, school or nonprofit organization.

(15) “Leased access channel” means any channel or portion of a channel designated by the franchisee as available for lease at fair and nondiscriminatory rates on a first-come, first-serve nondiscriminatory basis.

(16) “Local origination channel” means any channel or portion of a channel which the local franchisee designates for local origination programming.

(17) “Office” means the person or entity designated by the city as being responsible for the administration of the franchise for the city.

(18) “Premium services” means programming services over and above those provided by the franchisee as part of its basic services, for which there is an additional charge.

(19) “Property of franchisee” means all property owned, installed or used by a franchisee in the conduct of a CATV business in the city under the authority of a franchise granted pursuant to this chapter.

(20) “Residential network” means a cable communications network designed principally for the delivery of entertainment and community access by individual dwelling units.

(21) “Street” means the surface of the space above and below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway or drive, now or hereafter existing as such within the city.

(22) “Subscriber” means any person or entity who pays to receive, for any purpose, the CATV service of a franchisee.

(23) “Tier” means any group or groups of channels so designated and marketed by the operator for a separate charge to a subscriber. [Ord. 1010 § 1, 1986.]

5.48.030 Nature and extent of the grant.

Any franchise granted by the city under this chapter shall authorize the franchisee, subject to the provisions herein contained:

(1) To engage in the business of operating and providing cable communication service and the distribution and sale of such service to subscribers within the city;

(2) To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, attachments, supporting structures, and other property as may be necessary and appurtenant to the cable communications system; and, in addition, so to use, operate, and provide similar facilities, or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other franchisee franchised or permitted to do business in the city. [Ord. 1010 § 2(b), 1986.]

5.48.040 Term of franchise.

A franchise and the rights and privileges granted therein shall take effect 60 days after the ordinance granting such franchise is passed by the city, and remain in force and effect for a period of 15 years from the date; provided, that the franchisee accepts the terms of this franchise within said 60-day period. [Ord. 1010 § 2(c), 1986.]

5.48.050 Rules and regulations by the city.

(1) In addition to the inherent powers of the city to regulate and control any franchise it issues, the authority granted to it by the Cable Communications Policy Act of 1984, and those powers expressly reserved by the city, or agreed to and provided for in a franchise, the right and power is reserved by the city to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers provided they are consistent with the terms and conditions of this chapter.

(2) The city council reserves the right to delegate its authority for regulation and for franchise administration and enforcement to a designated agent; and further reserves the right to delegate this authority at its discretion to the agent of the city. [Ord. 1010 § 4, 1986.]

5.48.060 Hearing.

After the application has been received, the city council shall conduct a public hearing to determine the following:

(1) That the public will be benefited by the granting of a franchise to the applicant;

(2) That the applicant has requisite financial and technical resources and capabilities to build, operate and maintain a cable television system in the area;

(3) That the applicant has no conflicting interests, either financial or commercial, which will be contrary to the interests of the city;

(4) That the applicant will comply with all terms and conditions placed upon the franchisee by this chapter;

(5) That the applicant is capable of complying with all relevant federal, state and local regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise. (Ord. 1010 § 5, 1986.]

5.48.070 Acceptance.

(1) No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting same has become effective.

(2) Within 60 days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the council in its discretion may authorize, the franchisee shall file with the city clerk its written acceptance, in form satisfactory to the city attorney, together with the bond and insurance policies required by CMC 5.48.470 and 5.48.480. [Ord. 1010 § 6, 1986.]

5.48.080 Franchising costs.

The franchisee shall pay to the city, upon acceptance of any franchise granted under this chapter, the city’s out-of-pocket costs associated with the franchising process. Costs shall include such items as consulting fees, expenses, and the costs of publishing notices and ordinances, etc. Such payment is not deductible or considered in lieu of franchise fee payments. Payment is due within 60 days of receipt of appropriate invoice from the city. [Ord. 1010 § 7, 1986.]

5.48.090 System capability.

The franchisee shall provide the minimum of a 300 MHz system capable of 35 channels, and shall be activated with an initial minimum of 23 channels of service. Such system shall be fully operational no less than 12 months from the date of the award of the franchise.

Furthermore, at such time as 40 percent of the franchisee’s other systems of similar demographics, as determined by trade reference books, are installed or are upgraded to a 400 MHz operation, then the city council may require a similar upgrade capability. Such system shall be completed within 18 months of such notification to the franchisee. Demographic factors to be considered are size of the subscriber base and the number of dwelling units passed. Whenever possible, the age of plant and date of purchase should also be considered in this evaluation. [Ord. 1010 § 8, 1986.]

5.48.100 Technical standards.

The franchisee shall comply with FCC Rules, Part 76, Subpart K, Section 76.601 through 76.610 and as amended, at the minimum, all applicable city, state and national/federal codes, rules, regulations, and specifications referenced and/or set forth in this chapter. [Ord. 1010 § 9(a), 1986.]

5.48.110 Preventative maintenance.

A comprehensive routine preventative maintenance program shall be developed, effected and maintained for each system by the respective franchisee to ensure continued top quality cable communications operating standards in conformance with FCC Part 76. [Ord. 1010 § 9(b), 1986.]

5.48.120 Proof of performance.

The services of a newly constructed system or one that has undergone a major upgrade shall not be offered for sale prior to proof-of-performance testing in accordance with FCC Part 76.601 and technical specifications and standards as set forth in this chapter. [Ord. 1010 § 9(c), 1986.]

5.48.130 Training.

The franchisee shall develop a set of procedures for both the training and for the proper use of equipment provided for under CMC 5.48.150. [Ord. 1010 § 11, 1986.]

5.48.140 Access channels.

The franchisee shall provide one access channel dedicated for public, educational and government purposes. It is agreed that the franchisee will make an additional channel available if more than 80 percent of the cablecast time between the hours of 10:00 a.m. and 10:00 p.m. is utilized by access users for nonrepetitive programming. [Ord. 1010 § 10, 1986.]

5.48.150 Other interactive services.

The franchisee shall install an interactive system available to all subscribers. This system may provide such services as addressability, security, computer interaction, banking, shopping, etc., on a “two-way” basis. This facility shall be provided at such time when 40 percent of the franchisee’s other systems of similar demographics, as determined by trade reference books, have installed such system. Demographic factors to be considered are size of the subscriber base and the number of dwelling units passed. Whenever possible, the age of plant and date of purchase should also be considered in this evaluation. [Ord. 1010 § 12, 1986.]

5.48.160 Leased access.

The franchisee is encouraged to make available a cable channel for local commercial use as soon as feasible in the spirit of Section 612 of the Cable Communications Policy Act of 1984. [Ord. 1010 § 13, 1986.]

5.48.170 Public municipal buildings.

The franchisee shall, as part of its commitment to social responsiveness to the needs of all of the citizens of Clarkston, provide without charge, one outlet of basic service to not more than 15 municipally owned buildings designated by the city. If required, converters will be provided without installation or periodic charge. The city accepts responsibility for all such converters if lost, stolen or tampered with. [Ord. 1010 § 14, 1986.]

5.48.180 Emergency override.

In the event it becomes technically and economically feasible to do so, the franchisee will provide an emergency override of at least one audio signal and shall designate an emergency video channel for emergency announcements. The franchisee shall submit a letter every 12 months substantiating the feasibility of providing this service. If and when such a service becomes available, the city will indemnify the franchisee for any action brought against it in the exercise of such authority on behalf of the city. [Ord. 1010 § 15, 1986.]

5.48.190 Emergency power.

The franchisee shall provide a standby power system to automatically activate equipment at the headend and hubs, if applicable, in the event of a primary electrical failure. [Ord. 1010 § 16, 1986.]

5.48.200 Customer service.

The franchisee shall establish a local business office or provide an answering service which subscribers may telephone without incurring added message or toll charges. The franchisee shall provide an adequate number of telephone lines, telephone instruments and trained personnel to ensure against undue delay in answering consumer requests. In addition, telephone answering recording devices shall be activated after normal business hours so that all such inquiries and/or complaints may be monitored and prompt response may be made by the franchisee. The efficiency of such telephone response will be monitored by the city by performing spot checks by city officials or designees. In addition, the franchisee shall provide a location within the franchise area where subscribers may make payments for service.

In the event that the franchisee’s service to any subscriber is interrupted for 24 consecutive hours, except for acts of God and matters beyond the reasonable control of the franchisee, and except in circumstances for which the prior approval of the interruption is obtained from the city, the franchisee shall, upon written request of the affected subscriber, provide a pro rata rebate of the total monthly fees to such affected subscriber.

The franchisee shall ensure that all subscribers have recourse to a satisfactory hearing of any complaint. The franchisee shall annually notify all subscribers of the method of obtaining such a hearing, including the provisions of this section stated below.

Should a person have an unresolved complaint regarding cable service because of the actions or nonactions of the franchisee, such complaint may be lodged with the city clerk, or the designee of the city clerk. The city clerk has primary responsibility for continuing oversight administration of any franchise granted pursuant to this chapter and for the implementation of complaint procedures for complaints lodged with the city, and may delegate this authority to an agent if desired. [Ord. 1010 § 28, 1986.]

5.48.210 Subscribers’ right of privacy.

The franchise will be bound by all of the provisions of Section 631 of the Cable Communications Policy Act of 1984. [Ord. 1010 § 29, 1986.]

5.48.220 Nondiscrimination.

The franchisee shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any preferences or advantage to any person nor subject any person to any prejudice or disadvantage; provided, that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled; and provided further, that connection with service charges may be waived or modified during promotional campaigns of the franchisee.

Installation and house drop hardware shall be uniform throughout the city, except that the franchisee shall be free to change its hardware and installation procedure as the art progresses. [Ord. 1010 § 39, 1986.]

5.48.230 Parental control devices.

The franchisee will make available suitable devices for limiting access to certain cable channels at a reasonable charge. [Ord. 1010 § 17, 1986.]

5.48.240 Equal employment opportunity.

The franchisee will comply with all provisions of Section 634 of the Cable Communications Policy Act of 1984. [Ord. 1010 § 40, 1986.]

5.48.250 Construction notification.

The city may establish reasonable minimum requirements for advance notification to residents adjacent to proposed construction areas. [Ord. 1010 § 19, 1986.]

5.48.260 Construction standards.

All facilities constructed under this chapter shall be placed and maintained at such places and positions in or upon such streets, avenues, alleys, and public places as shall not interfere with the passage of traffic and the use of adjoining property, and shall conform to the National Electrical Code, state of Washington, and city regulations pertaining to such construction. [Ord. 1010 § 18, 1986.]

5.48.270 Undergrounding.

In those areas and portions of the city where the transmission or distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the franchisee shall likewise construct, operate and maintain all of its transmission and distribution facilities in the same area underground. Amplifiers and associated equipment in the franchisee’s transmission and distribution lines may be in appropriate housing upon the surface of the ground as approved by the city. [Ord. 1010 § 21, 1986.]

5.48.280 Building moving.

Whenever any person shall have obtained permission from the city to use any street for the purpose of moving any building, a franchisee, upon seven days’ written notice from the director of public works, shall raise or remove, at the expense of that person desiring to move the building, any of its or their wires which may obstruct the removal of such building, provided, that the moving of such building shall be done in accordance with regulations and general ordinances of the city at such reasonable hours and in such reasonable manner as shall cause the least interference with the business of the franchisee. Where more than one street is available for the moving of such building, the building shall be moved on such street as shall cause the least interference with the lines of the franchisee and other franchise holders. It is further provided that the person or persons moving such building shall indemnify and save harmless said franchisee of and from any and all damages or claims of whatsoever kind or nature caused directly or indirectly from such temporary arrangement of the lines and poles of the franchisee. [Ord. 1010 § 41, 1986.]

5.48.290 Extension policy.

The franchisee shall expand its cable service to areas newly annexed by the city or newly developed within the city within 12 months of annexation or construction completion, subject to the qualification that there is a density of at least 75 dwelling units per mile and one such unit within 300 feet, as measured from existing distribution cable.

The franchisee will not deny access to cable service to any group of potential residential cable subscribers because of the income of the residents of the local area in which the group resides. [Ord. 1010 § 22, 1986.]

5.48.300 Safety requirements.

(1) The franchisee shall, at all times, employ professional care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.

(2) All structures and all lines, equipment and connection in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of the franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.

(3) The city reserves the general right to see that the system of the franchisee is constructed and maintained in a safe condition. If an unsafe condition is found to exist by the city, it may order the franchisee to make necessary repairs and alterations. In the event the franchisee fails to make the necessary repairs within 30 days from the receipt of the city’s notification thereof, the city may make the repairs itself or have them made, and collect all reasonable costs thereof from the franchisee. [Ord. 1010 § 20, 1986.]

5.48.310 Tree trimming.

With city approval, the franchisee shall have the authority to trim trees upon and overhanging streets and public ways and places of the franchise area so as to prevent the branches of such trees from coming in contact with the mires and cables of the franchisee, and shall be responsible for debris removal from such activities. At the option of the city, such trimming may be done by it or under its supervision and direction, reasonable costs to be borne by the franchisee. [Ord. 1010 § 42, 1986.]

5.48.320 Franchise fee.

The franchisee shall pay to the city a sum equal to five percent of gross revenues as defined in CMC 5.48.020(12). [Ord. 1010 § 24, 1986.]

5.48.330 Rates.

The franchisee will file with the city a complete schedule of all rates to be charged to subscribers, including but not limited to:

(1) Installation of basic service;

(2) Charges for basic services;

(3) Installation of premium service;

(4) Charges for premium service;

(5) Installation for FM service;

(6) Charges for FM service (including rates for FM service as a primary service);

(7) Charges for relocation and reconnection;

(8) Converter charges;

(9) Charges for parental control keys;

(10) Installation charges for bulk/commercial service;

(11) Charges for bulk/commercial service;

(12) Installation charges for additional outlet service;

(13) Charges for additional outlet service;

(14) Discounts for multiple premium services, etc.;

(15) Extended drop installation charges;

(16) All other charges proposed.

The franchisee will notify the city in writing of all such modifications in said rates.

It is further agreed that the city shall be permitted to regulate the rates for the provision of basic service until December 29, 1986. [Ord. 1010 § 23, 1986.]

5.48.340 Performance tests.

On an annual basis, or as may be reasonably required by the city, the franchisee shall furnish test results to determine that such system is adhering to technical standards as required by this chapter. [Ord. 1010 § 26, 1986.]

5.48.350 Periodic reports.

Each franchisee will furnish and present to the city council upon written request of the city, at the conclusion of its fiscal year, a report of its activities, including, but not limited to, the following:

(1) Annual report of Telecommunications, Inc.;

(2) Listing of the number of subscribers within the city;

(3) The number of homes passed;

(4) The number of subscribers with basic service;

(5) The number of subscribers with premium service;

(6) Comments on citizen relations, such as number of complaints received and how those complaints were resolved;

(7) The number of hookups in period;

(8) The number of disconnects in period;

(9) The number of miles of cable laid in period;

(10) The number of miles of cable in city;

(11) Plans for future technical upgrading, if any;

(12) Plans for future programming and/or changes;

(13) Maps indicating existing location of headend equipment, trunk and distribution lines and projected routes with construction completion estimate by month or by quarter;

(14) General comments. [Ord. 1010 § 25, 1986.]

5.48.360 Franchise discussions.

A meeting between the franchisee and the city shall be held annually on or about the anniversary date of the granting of the franchise; or at other such times as may be deemed necessary by the city, for the purpose of discussing consumer complaints, construction progress, programming and other matters. [Ord. 1010 § 30, 1986.]

5.48.370 Record inspection.

The city reserves the right to inspect the records of the franchisee necessary to enforcement of the franchise at any time during normal business hours upon reasonable notice. Such documents will include, but not be limited to, such information as financial records. [Ord. 1010 § 27, 1986.]

5.48.380 Right of city to purchase.

The city reserves the right to purchase the existing system pursuant to Section 627 of the Cable Communications Policy Act of 1984. [Ord. 1010 § 32, 1986.]

5.48.390 Franchise renewal.

The provision of Section 626 of the Cable Communications Policy Act of 1984 will effectively govern the actions of the city and the franchisee in proceedings relating to franchise renewal. The city expressly reserves the right to establish guidelines in accordance with the provisions of the act to measure the effectiveness of the franchisee’s performance. [Ord. 1010 § 31, 1986.]

5.48.400 Continuity of service.

(1) It shall be the right of all subscribers to continue to receive service so long as their financial and other obligations to the franchisee are fulfilled.

(2) In the event the franchisee fails to operate a system for three months without prior notification to and approval of the city council, or without just cause such as an impossibility to operate the system because of the occurrence of an act of God, unforeseeable circumstances, or other reasons beyond the franchisee’s control, the city may, at its option, operate the system or designate someone to operate the system until such time as the franchisee restores service to conditions acceptable to the city council or a permanent operator is selected. If the city is required to fulfill this obligation for the franchisee, the franchisee shall reimburse the city for all reasonable costs or damages in excess of revenues from the system received by the city that are the result of the franchisee’s failure to perform.

(3) Upon termination of the franchise and the expiration of the legal remedies for the franchisee as specified in Section 626 of the Cable Communications Policy Act of 1984, the franchisee shall cooperate with the city in maintaining continuity of service by continuing to operate the system at the city’s request, for a period determined by the city council, not to exceed one year. During such time, the provisions of this chapter shall continue to govern in all respects. [Ord. 1010 § 33, 1986.]

5.48.410 Removal and abandonment of property of franchisee.

The city may direct the franchisee to temporarily disconnect or bypass any equipment of the franchisee in order to complete street construction or modification, install and remove underground utilities, or for other reasons of public safety and efficient operation of the city. Such removal, relocation or other requirement shall be at the sole expense of the franchisee.

Subject to state and federal law, in the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with the requirements of the franchisee’s franchise or this chapter, or the franchise has been terminated, cancelled or has expired, the franchisee shall promptly, upon being given 30 days’ notice, remove from the streets or public places all such property and poles of such system, other than any which the city may permit to be abandoned in place. In the event of such removal, the franchisee shall promptly restore the street or other area from which such property has been removed to the same or similar condition prior to its removal.

Subject to state and federal law, any property of the franchisee remaining in place six months after the termination or expiration of the franchise shall be considered permanently abandoned. The city may extend such time not to exceed an additional 60 days.

Upon permanent abandonment of the property of the franchisee in place, the property shall become that of the city, and the franchisee shall submit to the city clerk an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property. [Ord. 1010 § 34, 1986.]

5.48.420 Revocation for cause.

Any franchise granted by the city may be terminated during the period of such franchise for the following reasons:

(1) Failure by the franchisee to comply with material provisions of this chapter of a more serious nature than those which would come under the review of franchisee’s performance in Section 626 of the Cable Communications Policy Act of 1984;

(2) Failure of the franchisee to comply with FCC regulations, or other provisions of the Cable Communications Policy Act of 1984. [Ord. 1010 § 35, 1986.]

5.48.430 Termination procedure.

The procedure to be followed resulting in termination for any of the reasons set out in CMC 5.48.420, save the franchisee’s request, will be:

(1) The city council will direct, in writing, the franchisee to correct such deficiencies or comply with such regulations within 30 days or a reasonable period of time;

(2) Failure to do so will cause the matter of termination to be brought before the city council;

(3) At such hearing, the franchisee and other interested parties may offer evidence explaining or mitigating such noncompliance. The city council will make the determination as to whether such noncompliance was with just cause. In the event the city council shall find such noncompliance was without just cause, the city council shall fix an additional time period to cure such deficiency(ies). If this has not been effected at the expiration of this additional extended period, the city council may pass a resolution declaring the franchise to be terminated and forfeited;

(4) If the operator appeals the revocation and termination of the franchise through legal remedies, the revocation of such franchise shall be held in abeyance pending such judicial review by a court of competent jurisdiction;

(5) Provided, nothing contained in subsections (1) through (4) of this section shall prevent the issuance of a new franchise by the city council to any franchisee who has had a franchise revoked, on satisfactory assurances made to the city council that the terms and conditions of this chapter can be met by the former franchisee. [Ord. 1010 § 35, 1986.]

5.48.440 Effect of termination for noncompliance.

Subject to state and federal law, if any franchise is terminated by the city by reason of the franchisee’s noncompliance, that part of the system under such franchise located in the streets and public property shall, at the election of the city, become the property of the city at a cost consistent with the provisions of Section 627(b)(1) of the Cable Communications Policy Act of 1984. If the city does not purchase the system, the franchisee shall, upon order of the city council, remove the system as required under CMC 5.48.410. [Ord. 1010 § 36, 1986.]

5.48.450 Transfer of ownership.

Any franchise awarded by the city shall be based upon an evaluation by the city of each application, the qualifications, and other criteria as such pertain to each particular applicant. No franchise can be sold, transferred, leased, assigned, or disposed of in whole or in part either by sale, voluntary or involuntary, merger, consolidation or otherwise, unless approval is granted by the city council. Such approval shall not be unreasonably withheld.

An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of 50 percent or more of the beneficial interests, singly or collectively, are obtained by other parties. The word “control” as used herein is not limited to majority stock ownership only, but includes actual working control in whatever manner exercised.

The franchisee shall promptly notify the city prior to any proposed change in, or transfer of, or acquisition by any other party of control of the franchisee’s company. Every change, transfer or acquisition of control of the franchisee’s company shall make the franchise subject to cancellation unless and until the city shall have consented thereto. In the event that the city adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the city may cancel the franchise unless control by the franchisee is restored to a status acceptable to the city council.

Such approval of transfer, subject to conditions enumerated above, shall not be unreasonably withheld. Approval of the city shall not be required if said transfer is from franchisee to another person or entity controlling, controlled by or under common control with the franchisee. Approval shall not be required for mortgaging purposes; provided, that less than 50 percent of the beneficial interests, as described above, are affected by such mortgage.

Upon the commencement of a foreclosure action or other actions which could possibly result in a judicial sale of all or a substantial part of the cable system, the franchisee shall notify the city council of such fact, and such notification shall be treated as a notification that a change in control of the company has taken place, and the provisions of this chapter governing the consent of the city council to such change in control of the franchisee shall apply.

Any transfer or assignment approved by the city shall be evidenced by a written instrument, a duly executed copy of which shall be filed in the office within 90 days after the approval of the transfer or assignment by the city. By said instrument, the assignee shall agree to comply with all terms of this chapter, the franchise ordinance, and the assignor’s application. [Ord. 1010 § 37, 1986.]

5.48.460 Modification.

If any portion of this chapter should be inconsistent with any rule or regulation adopted at or after the effective date of the ordinance codified in this chapter by the FCC or other federal legislation, then to the extent of the inconsistency, the rule or regulation of the FCC or other federal legislation shall control for so long, but only for so long, as such rule or regulation shall remain in effect, but the remaining provisions of this chapter shall not be affected. [Ord. 1010 § 38, 1986.]

5.48.470 Insurance.

The franchisee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the city and file with the city clerk and, at all times during the existence of any franchise granted under this chapter, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, in protection of the city, its officers, boards, commissions, agents and employees, protecting the city and all persons against liability for loss or damage, for personal injury, death and property damage, and errors or omissions, occasioned by the operations of the franchisee under such franchise, with minimum limits of $1,000,000 for both personal injury and property damage.

The policies mentioned in the foregoing paragraph shall name the city, its officers, boards, commissions, agents and employees, as additional insureds and shall contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the city 30 days in advance of the effective date thereof; if such insurance is provided by a policy which also covers the franchisee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. [Ord. 1010 § 44, 1986.]

5.48.480 Performance bond.

The franchisee shall promptly repair or cause to be repaired any damage to city property caused by the franchisee or any agent of the franchisee. The franchisee shall comply with all present and future ordinances and regulations regarding excavation or construction and, if deemed necessary by the city, shall be required to post a performance bond in an amount not to exceed $15,000 in favor of the city, warranting that all restoration work will be done promptly and in a workmanlike manner. [Ord. 1010 § 45, 1986.]

5.48.490 Indemnity and hold harmless.

The franchisee will be required to indemnify and hold harmless the city from any and all liabilities, fees, costs and damages, whether to person or property, or expense of any type or nature which may occur to the city by reason of the construction, operation, maintenance, repair and alterations of the franchisee’s facilities. In any case in which suit or action is instituted against the city by reason of damages or injury caused by the franchisee, the city shall cause written notice thereof to be given to the franchisee, and the franchisee thereupon shall have the duty to appear and defend, in any such suit or action, without cost or expense to the city.

No privilege or exemption shall be granted or conferred upon the franchisee by any franchise except those specifically prescribed therein, and any use of any street shall be subordinate to any prior lawful occupancy of the street or any subsequent improvement or installation therein. [Ord. 1010 § 43, 1986.]

5.48.500 Impracticability.

Any other provision of this chapter notwithstanding, in the event that extraordinary unforeseen circumstances beyond the control of the franchisee materially impact (1) the ability of the franchisee to derive a fair and reasonable rate of return from a cable television franchise granted under this chapter, or (2) the ability of the franchisee to perform some or all of its obligations under this chapter or a franchise granted under this chapter, then the franchisee shall have the right to petition the city for relief, which shall not be unreasonably delayed or denied as in accordance with Section 625 of the Cable Communications Policy Act of 1984. [Ord. 1010 § 48, 1986.]

5.48.510 Force majeure.

In the event that the franchisee’s performance of any of the terms, conditions, obligations or requirements of this chapter is prevented or impaired due to any cause(s) beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof. [Ord. 1010 § 47, 1986.]

5.48.520 Police powers.

In accepting any franchise, the franchisee acknowledges that its rights hereunder are subject to the police power of the city to adopt and enforce general ordinances necessary to the safety and welfare of the public, and it agrees to comply with all applicable general laws enacted by the city pursuant to such power. [Ord. 1010 § 3, 1986.]

5.48.530 Severability.

Each section, subsection or other portion of this chapter shall be severable and the invalidity of any section, subsection, or other portion shall not invalidate the remainder. [Ord. 1010 § 46, 1986.]