Chapter 11.10 CABLE COMMUNICATION SYSTEMS

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. Terms not defined here are defined according to FWRC 1.05.020.

“Access channels” means free composite channels to be used for educational purposes and by government and public agencies and/or their representatives (commonly referred to as “PEG” channels).

The “Act” means the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992 and any subsequent amendments.

“Addressability” means the ability of a franchisee to electronically authorize customer terminals to receive, change or to cancel any or all specified programming.

“Basic cable service” is the lowest level of service regularly provided to all subscribers that includes the retransmission of local broadcast television signals.

“Cable communication system” means a system which may provide audio, video and data transmission to subscribers.

“Cable facilities” means equipment and wiring used to transmit audio and video signals to subscribers.

“Cable services” means (1) the one-way transmission to subscriber of video programming or other programming service, and (2) subscriber interaction, if any, which is required for the selection by the subscriber of such video programming.

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

“Character generator” means a device used to generate alpha numerical programming to be cablecast on a cable channel.

“Data transmission” means (1) the movement of encoded information by means of electrical or electronic transmission systems; (2) the transmission of data from one point to another over communications channels.

“Dwelling units” means residential living facilities as distinguished from temporary lodging facilities such as hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes within mobile home parks, and other multiple-family residential units.

“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.

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

“Fiber optics” means the technology of guiding and projecting light for use as a communications medium.

“Franchise” means the initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable communication system for the purpose of offering cable service or other service to subscribers.

“Franchisee” or “operator” means the person, firm or corporation to whom or which a franchise is granted by the council under this chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in city ordinance.

“Gross annual receipts” means the annual gross receipts received by a franchisee directly or indirectly from its subscribers for the provision of communications services including but not limited to revenues from Home Shopping Network and advertising, data, telephone, interactive services, late fees, and excluding but not limited to bad debts, refundable deposits, and any sales, excise or other taxes collected for direct pass-through to local state or federal government.

“Headend” means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.

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

“Institutional networks (I-Nets)” means a cable communications system designated principally for the provision of non-entertainment services to public schools, or public agencies such as public libraries separate and distinct from the subscriber network, or on secured channels of the subscriber network.

“Interactive services” means services provided to subscribers where the subscriber either (1) both receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or (2) transmits signals to any other location for any purpose.

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

“Property of franchisee” means all property owned, installed or used by a franchisee in the conduct of its business in the city.

“Proposal” means the response, by an individual or organization, to a request by the city regarding the provision of cable services; or an unsolicited plan submitted by an individual or organization seeking to provide cable services in the city.

“Subscriber” means a person, entity, or user who lawfully receives cable services or other service from a cable system with the franchisee’s express permission.

(Ord. No. 09-600, § 11, 1-6-09; Ord. No. 95-239, § 1, 8-1-95. Code 2001 § 9-701.)

11.10.020 Terms of franchise.

(1) Authority to grant franchises or licenses for cable television. 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 non-exclusive franchise to construct, operate and maintain a cable communications system which complies with the terms and conditions of this chapter.

Any franchise granted pursuant to this chapter shall be non-exclusive and shall not preclude the city from granting other or further franchises or permits or preclude the city from using any public 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 such changes, as the city shall deem necessary, including the dedication, establishment, maintenance, and improvement of all new public rights-of-way and other public properties. All franchises granted subsequent to the effective date of this master cable ordinance shall be granted with consistent material terms and conditions of this chapter and existing franchises.

(2) Incorporation by reference. The provisions of this chapter shall be incorporated by reference in any franchise ordinances or licenses approved hereunder. The provisions of any proposal submitted and accepted by the city shall be incorporated by reference in the applicable franchise. However, in the event of any conflict between the proposal, this chapter and the franchise, the franchise shall be the prevailing document.

(3) Nature and extent of the franchise. Any franchise granted hereunder by the city shall authorize a franchisee, subject to the provisions herein contained:

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

(b) To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, lines, cables, conductors, vaults, manholes, pedestals, attachments, supporting structures, and other property as may be necessary and appurtenant to the cable communications system; and provide similar cable 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. No privilege or exemption shall be granted or conferred upon a franchisee by any franchise except those specifically prescribed therein, and any use of any street shall be consistent with any prior lawful occupancy of the street or any subsequent improvement or installation therein.

(4) Length of the franchise. The city shall have the right to grant a franchise for a period of time appropriate to the circumstances of the particular grant.

(Ord. No. 95-239, § 2, 8-1-95. Code 2001 § 9-702.)

11.10.030 Application.

An applicant for a franchise to construct, operate, and maintain a cable communications system within the city shall file an application in a form prescribed by the city, accompanied by a nonrefundable filing fee in the amount of $5,000.

(Ord. No. 95-239, § 3, 8-1-95. Code 2001 § 9-703.)

11.10.040 Franchise issuance.

Prior to the granting of a franchise, the city council shall conduct a public hearing to determine the following:

(1) Initial franchise.

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

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

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

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

(e) That the applicant is capable of complying with all relevant federal, state, and local regulations pertaining to the construction, operation and maintenance of the cable facilities and systems incorporated in its application for a franchise;

(f) That the public rights-of-way have the capacity to accommodate the cable communications system;

(g) That the proposed franchise is consistent with the city’s present and future use of the public rights-of-way to be used by the cable communications system;

(h) That the benefit to the public from the cable communications system outweighs the potential disruption to existing users of the public rights-of-way to be used by the cable communications system and the resultant inconvenience which may occur to the public; and

(i) That all other conditions resulting from the grant of the franchise have been considered by the city and that the city determines that the grant is still in the public’s best interest.

(2) Renewal franchise.

(a) That the applicant has complied with the terms and conditions of the existing franchise;

(b) That the quality of the applicant’s previous service has been reasonable in light of community needs;

(c) That the applicant’s proposal is reasonable to meet the future cable related community needs and interests taking into account the cost of meeting such needs and interests;

(d) That the public rights-of-way have the capacity to accommodate the cable communications system;

(e) That the proposed franchise is consistent with the city’s present and future use of the public rights-of-way to be used by the cable communications system;

(f) That the benefit to the public from the cable communications system outweighs the potential disruption to existing users of the public rights-of-way to be used by the cable communications system and the resultant inconvenience which may occur to the public; and

(g) That all other conditions resulting from the grant of the franchise have been considered by the city and that the city determines that the grant is still in the public’s best interest.

(Ord. No. 95-239, § 4, 8-1-95. Code 2001 § 9-704.)

11.10.050 Acceptance.

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

Within 30 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, a franchisee shall file with the city clerk its written acceptance of the franchise and all of its terms and conditions, in a form satisfactory to the city attorney, together with the insurance policy required by FWRC 11.10.320, Insurance, herein, as well as the bond policy required by FWRC 11.10.330, Recourse against bonds and other security, in the franchise. Acceptance of this chapter is a condition precedent to its taking effect, and unless such acceptance is filed within the time period specified, this chapter shall be null and void.

(Ord. No. 95-239, § 5, 8-1-95. Code 2001 § 9-705.)

11.10.060 Police powers.

In accepting any franchise, a franchisee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the city to adopt and enforce general ordinances necessary to protect 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. The city council expressly reserves unto itself all its police powers to adopt ordinances necessary to protect the health, safety and welfare of the general public in relation to the rights granted under this franchise. The city reserves the right to use, occupy and enjoy any public rights-of-way or public places for any purpose, including without limitation the construction of any water, sewer or storm drainage system, installation of traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, other city services and other public street improvement projects.

(Ord. No. 95-239, § 6, 8-1-95. Code 2001 § 9-706.)

11.10.070 Rules and regulations by the city.

In addition to the inherent powers of the city to regulate any franchise it issues, the authority granted to it by the Act, and those powers expressly reserved by the city, or agreed to and provided for in a franchise, the right and power is hereby reserved by the city to promulgate such additional regulations as it may find necessary in the exercise of its lawful police powers. The city council reserves the right to delegate its authority for franchise administration to a designated agent.

(Ord. No. 95-239, § 7, 8-1-95. Code 2001 § 9-707.)

11.10.080 Construction standards.

All cable facilities constructed under this chapter shall be placed and maintained at such places and positions in or upon such public right-of-way and public places so it shall not interfere with the passage of traffic and the use of adjoining property, and shall conform to the applicable section of the National Electrical Code, codes of the state of Washington, and city rules, regulations, ordinances, codes, standards and policies pertaining to such construction.

At least 48 hours prior to the intended construction, a franchisee shall inform all residents in the affected area that a construction project will commence, the dates and nature of the project, and a toll-free telephone number which the subscriber may call for further information. A pre-printed door hanger may be used for this purpose. The city reserves the right, as the interest of the public may require, to require the installation or construction of new cable facilities proposed by franchisee to be constructed in arterial thoroughfares or to be installed in alternate public rights-of-way which are substantially comparable in terms of the expense to franchisee for installation or construction, and which provide distribution to all affected parcels of property that is equal or better to the requested installation route. The city shall give particular preference to the alternate installation location in cases in which the existing improvements to the public right-of-way would be affected by the proposed installation, or where the structural integrity of the surface of the right-of-way, or inconvenience to the public caused by the proposed installation cannot be mitigated through alternative means.

(1) Notice of entry on private property. At least 24 hours prior to entering private property or streets or other public property or easements adjacent to or on such private property to perform new plant construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted upon the affected property. A franchisee shall make a good faith effort to comply with the property owner/resident’s preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices.

(2) Emergency repairs. Notice requirements of subsection (1) of this section, are suspended for purposes of entry upon private property to perform repairs at the subscriber’s request or in the event of system outage repairs or other emergencies in which insufficient time is available to provide notice to subscribers.

(3) Restoration of property. After performance of work, franchisee shall restore private property as nearly as possible to its condition prior to construction. Any disturbance of landscaping, fencing, or other improvements on private property shall, at the sole expense of a franchisee, be promptly repaired and restored (including replacement of such items as shrubbery and fencing) to the reasonable satisfaction of the property owner.

(4) Location of cable facilities. Whenever, in the sole opinion of the city, any of a franchisee’s facilities or equipment need to be relocated or altered due to construction or repair project by the city in a public way, a franchisee shall move or relocate said facilities or equipment within 30 days of receiving written notice from the city. However, in the event such relocation is required due to emergency repairs deemed necessary by the city, such relocation or moving shall be accomplished within 24 hours. Any relocation or alteration of a franchisee’s facilities or equipment required under this section shall be at the sole expense of a franchisee.

(Ord. No. 95-239, § 8, 8-1-95. Code 2001 § 9-708.)

11.10.090 Undergrounding.

In those areas and portions of the city where the transmission or distribution facilities of the public utility providing telephone service or those of the facility providing electric service are underground or hereafter may be placed underground, then a franchisee shall likewise construct, operate and maintain all of its transmission and distribution cable facilities in the same area underground upon city approval. Such activities shall be made in concurrence and cooperation with the other affected utilities. Amplifiers and associated equipment in a franchisee’s transmission and distribution lines may be in appropriate housing upon the surface of the ground.

(Ord. No. 95-239, § 9, 8-1-95. Code 2001 § 9-709.)

11.10.100 Construction in right-of-way.

(1) Right-of-way permit. A franchisee shall submit an application for, pay the permit fee, and obtain a right-of-way permit to perform work in any public rights-of-way. No work, other than emergency repairs, shall commence without such a permit. Emergency repairs may be made immediately with notification given to the city no later than the next business day.

(2) Installation. In accordance with the permit issued, all transmission lines, equipment, and structures shall be located and installed so as to cause minimum interference with the rights and reasonable convenience of property owners, and at all times shall be maintained in a safe condition, and in good order and repair. Suitable barricades, flags, lights, flares, or other devices shall be used at such times and places as are reasonably required for the safety of the public. Any poles or other fixtures placed in any street by a franchisee shall be placed in such manner as not to interfere with the usual travel on such public way.

(3) Interference with use of streets. When installing, locating, laying, or maintaining cable facilities, apparatus, or improvements, a franchisee shall not interfere with the use of any street to any greater extent than is necessary, and shall leave the surface of any such street in as good condition as it was prior to performance by franchisee of such work. Any facility, apparatus, or improvement under this chapter shall be laid, installed, located, or maintained in conformance with instructions given by, and to the satisfaction of the city. In any event, a franchisee shall, at its own expense, and to the satisfaction of the city in accordance with the terms of the right-of-way permit, restore to city standards and specifications any damage or disturbance caused to streets as a result of franchisee’s construction or operations.

(4) Relocation/removal. Upon receipt of 90 days’ prior written notice, a franchisee, at its own expense, and within the time period prescribed by the city, shall protect, support, temporarily disconnect, relocate, or remove any of its cable facilities or property when, in the judgement of the city, the same is required by reason of traffic conditions, public safety, improvements by governmental agencies and/or any other city use of the franchise area. Nothing herein shall be deemed a taking of the property of a franchisee, and franchisee shall be entitled to no surcharge by reason of this section.

(5) City’s performance of work. After receipt of 30 days’ prior written notice, and upon the failure of a franchisee to commence, pursue, or complete any work required by the provisions of this chapter or failure to comply with any applicable federal, state or city laws, ordinances, rules, regulations or standards to be performed on any street, within the reasonable time prescribed and to the satisfaction of the city, the city may, at its option, cause such work to be done, and a franchisee shall pay to the city the reasonable cost thereof which costs may include the city’s reasonable overhead and administrative expense, within 30 days after receipt of demand.

(Ord. No. 95-239, § 10, 8-1-95. Code 2001 § 9-710.)

11.10.110 Safety requirements.

A franchisee, 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 public rights-of-way or places of a 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.

The city reserves the general right to see that the cable facilities of a franchisee is constructed and maintained in a safe condition.

(Ord. No. 95-239, § 11, 8-1-95. Code 2001 § 9-711.)

11.10.120 Building moving.

Whenever any person shall have obtained a permit from the city to use any street for the purpose of moving any building, a franchisee, upon seven days’ written notice from the city, shall raise or remove, at the expense of the permittee desiring to move the building, any of a franchisee’s wires which may obstruct the removal of such building; provided, that the moving of such building shall be done in accordance with all city codes, regulations and general ordinances of the city.

(Ord. No. 95-239, § 12, 8-1-95. Code 2001 § 9-712.)

11.10.130 Tree trimming.

Except for emergency conditions which may preclude prior approval, a franchisee shall abide by all city rules, regulations, ordinances, policies and standards, including the city’s vegetation plan, franchisee shall have the authority, at its expense, to trim trees upon and overhanging streets, public rights-of-way and places in the franchise area so as to prevent the branches of such trees from coming in contact with the wires and cables of a franchisee and, if necessary, to clear a microwave path. A franchisee shall be responsible for debris removal from such activities.

(Ord. No. 95-239, § 13, 8-1-95. Code 2001 § 9-713.)

11.10.140 Rates.

Within 30 days after the grant of any franchise hereunder, a franchisee shall file with the city a complete schedule of all present rates charged to all subscribers.

Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, a franchisee shall provide the city and all subscribers a minimum of 30 days’ prior written notice of such change.

Subject to the Act and resultant FCC regulations, the city may regulate the rates or charges for providing cable service and other equipment and may establish rate regulation review procedures as delegated by federal law.

(Ord. No. 95-239, § 14, 8-1-95. Code 2001 § 9-714.)

11.10.150 Cable television rate regulations adopted by reference.

The rate regulations set forth in the Report and Order dated May 3, 1993, issued by the Federal Communications Commission pursuant to the authority set forth in the Cable Television Consumer Protection and Competition Act of 1992 (“Cable Act”) under 47 USC Section 543, containing rules, forms and procedures for implementing the rate regulation provisions of the Cable Act, including all future additions, deletions and amendments thereto, are hereby adopted by reference as the city of Federal Way’s rate regulations.

(Ord. No. 94-206, § 1, 1-4-94. Code 2001 § 9-1.)

11.10.160 Cable availability.

Cable service shall not be denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides subject to density and coverage limitations.

(Ord. No. 95-239, § 15, 8-1-95. Code 2001 § 9-715.)

11.10.170 Franchise fee.

A franchisee shall pay to the city a quarterly estimate as a franchise fee no later than 45 days following the end of such quarter, equal to a percentage of gross annual receipts for the preceding three months. Interest shall accrue if not paid by 45 days from the end of the quarter. Such remittances shall be accompanied by forms furnished by the city to report detailed information as to the sources of such income. The franchise fee payable by a franchisee to the city on gross annual receipts derived from any new, non-cable-television-related programming product or other communication service such as interactive, data, telephone transmission or other communication product or service, which is delivered to the subscriber by using public rights-of-way, shall be at the same rate as the fee, tax, assessment or other revenue payable to the city by other providers of the same product or service within a franchisee’s franchise service area. As used in this section, a nonprogramming product or service shall be considered new if a franchisee was not already providing it as of the enactment of its franchise.

(Ord. No. 09-600, § 12, 1-6-09; Ord. No. 95-239, § 16, 8-1-95. Code 2001 § 9-716.)

11.10.180 Cable system evaluation.

The city may request annual evaluation sessions during the term of the franchise. Each request must be communicated in writing, at least 30 days prior to the proposed meeting date. The scope of such evaluations shall be limited to customer service and a franchisee’s performance under and compliance with the terms of the franchise.

(Ord. No. 95-239, § 17, 8-1-95. Code 2001 § 9-717.)

11.10.190 Record inspection.

Subject to statutory and constitutional limits and 48 hours’ advance notice, the city reserves the right to inspect the records of a franchisee necessary for the enforcement of a franchise at any time during normal business hours; provided, that the city shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of a franchisee. Such documents shall include information such as financial records, subscriber records and plans pertaining to a franchisee’s operation in the city.

(Ord. No. 95-239, § 18, 8-1-95. Code 2001 § 9-718.)

11.10.200 Public, educational and government access.

The city may require, as a condition of a franchise granted pursuant to this chapter, provisions for public, educational and government (“PEG”) access.

(Ord. No. 95-239, § 19, 8-1-95. Code 2001 § 9-719.)

11.10.210 City-wide public, educational and government access interconnection.

The city may require a franchisee to interconnect PEG access channels of a cable television system with any and all other contiguous and compatible cable systems within the city. Interconnection of system may be accomplished by direct cable connection, microwave link, or other technically feasible method.

Upon receiving a request from the city to interconnect, a franchisee shall immediately initiate negotiations with other affected system(s), and shall report to the city the results of such negotiations no later than 60 days after such initiation.

(Ord. No. 95-239, § 20, 8-1-95. Code 2001 § 9-720.)

11.10.220 Institutional networks (I-Nets).

A franchisee’s cable communications system shall have the capability of serving designated educational and public buildings with uni- or bi-directional video/audio signals. The I-Net system shall be for the purpose of private communications and the signals so provided shall not be transmitted via the subscriber network system. The linkage may be by cable, microwave or other means deemed appropriate by a franchisee; provided, that the communication system if connected by microwave shall furnish suitable encoding and decoding devices.

An entity desiring the activation of such a system shall make application thereof to the city. At a public hearing to evaluate such a request both the requestor and the franchisee shall be provided the opportunity to present the public benefits as well as the costs of such implementation. Upon a finding by the city council that these features are reasonably required to meet community needs, taking into account the cost of meeting such needs, the city council may require the implementation of such services within a reasonable time.

(Ord. No. 95-239, § 21, 8-1-95. Code 2001 § 9-721.)

11.10.230 City-wide institutional networks interconnection.

A franchisee, upon request by the city shall make such interconnections as required to connect the designated entities on a city-wide basis. The same conditions as enumerated in FWRC 11.10.210, City-wide public, educational, and government access interconnection, shall apply.

(Ord. No. 95-239, § 22, 8-1-95. Code 2001 § 9-722.)

11.10.240 Access and institutional network equipment.

A franchisee may be required to contribute either goods and services and/or monies for the purpose of providing cable facilities and equipment in order to broadcast PEG access programming as well as provide communications via the institutional networks. Such resources provided will be divided equally among the franchisees proportionate to the number of subscribers.

(Ord. No. 95-239, § 23, 8-1-95. Code 2001 § 9-723.)

11.10.250 Nondiscrimination.

In connection with rates, charges, cable facilities, rules, regulations and in all franchisee’s services, programs or activities, and all franchisee’s hiring and employment made possible by or resulting from this franchise, there shall be no discrimination by franchisee or by franchisee’s employees, agents, subcontractors or representatives against any person because of sex, age (except minimum age and retirement provisions), race, color, creed, national origin, marital status or the presence of any disability, including sensory, mental or physical handicaps, unless based upon a bona fide occupational qualification in relationship to hiring and employment.

This requirement shall apply but not be limited to the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection or training, including apprenticeship. Franchisee shall not violate any of the terms of Chapter 49.60 RCW, Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, Section 504 of the Rehabilitation Act of 1973 or any other applicable federal, state or local law or regulation regarding nondiscrimination. Any material violation of this provision shall be grounds for termination of this franchise by the city and, in the case of the franchisee’s breach, may result in ineligibility for further city agreements; 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 and/or service charges may be waived or modified during promotional campaigns of a franchisee.

(Ord. No. 95-239, § 24, 8-1-95. Code 2001 § 9-724.)

11.10.260 Continuity of service.

A franchisee shall continue to provide service to subscribers so long as their financial and other obligations to a franchisee are fulfilled.

(1) In this regard a franchisee shall act so far as it is within its control to ensure that all subscribers receive continuous uninterrupted service during the term of the franchise.

(2) In the event a franchisee fails to operate a system for 72 continuous and consecutive hours 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 emergency or other circumstances reasonably beyond a franchisee’s control, the city may, after notice and an opportunity for a franchisee to commence operations at its option, operate the system or designate someone to operate the system until such time as a franchisee restores service to conditions acceptable to the city council or a replacement franchisee is selected. If the city is required to fulfill this obligation for a franchisee, a 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 a franchisee’s failure to perform.

(Ord. No. 95-239, § 25, 8-1-95. Code 2001 § 9-725.)

11.10.270 Transfer of ownership.

A franchise shall not be sold, transferred, leased, assigned, or disposed of in whole or in part either by sale, voluntary or involuntary merger, consolidation or otherwise, unless written approval is granted by the city council within 90 days after transfer application has been submitted. Such costs associated with this review process shall be reimbursed to the city by a new prospective franchisee.

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, singularly 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.

A franchisee shall promptly notify the city prior to any proposed change in, or transfer of, or acquisition by any other party of control of a franchisee’s company. Every change, transfer, or acquisition of control of a franchisee’s company shall cause a review of the proposed transfer. 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. Approval shall not be required for mortgaging purposes or if said transfer is from a franchisee to another person or entity controlling, controlled by, or under common control with a franchisee.

The city will monitor the limitations or ownership, control, utilization and restrictions on sale of systems in accordance with the Act.

(Ord. No. 95-239, § 26, 8-1-95. Code 2001 § 9-726.)

11.10.280 Removal and abandonment of property of franchisee.

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

In the event that the use of any part of the cable system is discontinued for any reason for a continuous period of 12 months or more, or in the event such system or property has been installed in any public right-of-way or other public place without complying with the requirements of the franchise or other city ordinances or the franchise has been terminated, cancelled or has expired, a franchisee shall promptly, upon being given 10 days’ notice, remove at its expense within 90 days from the public right-of-way or other public place 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, a franchisee shall promptly restore the street or other areas from which such property has been removed to a condition satisfactory to the city.

Any property of a franchisee remaining in place 90 days after the termination or expiration of the franchise shall be considered permanently abandoned. The city may extend such time not to exceed an additional 90 days.

Any property of a franchisee to be abandoned in place shall be abandoned in such manner as the city shall prescribe. Upon permanent abandonment of the property of a franchisee in place, the property shall become that of the city, and a 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. None of the foregoing affects or limits franchisee’s rights to compensation for an involuntary abandonment of its property under state, or federal law.

(Ord. No. 95-239, § 27, 8-1-95. Code 2001 § 9-727.)

11.10.290 Revocation for cause.

Any franchise granted by the city may be terminated during the period of such franchise for either failure by a franchisee to comply with provisions of this chapter, the franchise, FCC technical guidelines or other applicable federal, state or local laws, rules or regulations.

The procedure to be followed resulting in termination for any of the above reasons, except franchisee’s request, shall be:

(1) The city council shall direct a franchisee, in writing, to cure such a default within 30 days or a reasonable period of time.

(2) Failure to cure the default within such 30 days or other prescribed period will cause the matter of termination to be brought before the city council for hearing.

(3) At such hearing a franchisee and other interested parties may offer evidence explaining or mitigating such noncompliance. The city council, in its sole discretion, will make the determination as to whether such noncompliance was without just cause. In the event the city council finds that such noncompliance was without just cause, the city council may in its sole discretion fix an additional time period to cure such defaults. If the default has not been cured at the expiration of any additional time period or if the council does not grant any additional period, the city council may by ordinance declare the franchise to be terminated and forfeited.

(4) If a franchisee appeals the city council revocation and termination, such revocation may be held in abeyance pending judicial review by a court of competent jurisdiction, provided a franchisee is otherwise in compliance with the franchise.

(5) Nothing contained in the above subsections of this section shall prevent the issuance of a new franchise containing terms substantially the same or identical to a franchise which previously was revoked, upon satisfactory assurances made to the city council that the terms and conditions of this chapter can be met by the new franchisee.

(Ord. No. 95-239, § 28, 8-1-95. Code 2001 § 9-728.)

11.10.300 Effect of termination for noncompliance.

Subject to state and federal law, if any franchise is terminated by the city by reason of a 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 applicable provisions of federal law. If the city, or a third party, does not purchase the system, a franchisee shall, upon order of the city council, remove the system as required under FWRC 11.10.280, Removal and abandonment of property of franchisee.

(Ord. No. 95-239, § 29, 8-1-95. Code 2001 § 9-729.)

11.10.310 Indemnify and hold harmless.

Franchisee agrees to indemnify and hold the city, its elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this franchise to the extent caused by the negligent acts, errors or omissions of the franchisee, its partners, shareholders, agents, employees, or by the franchisee’s breach of this franchise.

In the event it is determined that RCW 4.24.115 applies to this franchise, franchisee agrees to defend, hold harmless and indemnify the city to the maximum extent permitted thereunder, to the full extent of franchisee’s negligence. Franchisee understands that these indemnity provisions shall apply to claims from which the franchise would otherwise be able to claim immunity under RCW Title 51, and that this understanding has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this franchise with respect to any event occurring prior to such expiration or termination. In any case in which suit or action is instituted against the city by reason of damage or injury caused by a franchisee, the city shall cause written notice thereof to be given to a franchisee and a franchisee thereupon shall have the duty to appear and defend any such suit or action, without cost or expense to the city.

The city shall at its sole expense, fully indemnify and hold harmless a franchisee, its officers, agents and employees from any and all claims, suits, actions, liability and judgement for damage resulting from the city’s sole negligent action which results in liability to a franchisee in connection with the city’s use of the emergency alert override, I-Nets or public, educational, and government access.

(Ord. No. 95-239, § 30, 8-1-95. Code 2001 § 9-730.)

11.10.320 Insurance.

A franchisee agrees to maintain and shall furnish the city with a certified copy or original of a commercial general liability insurance policy naming the city as an additional insured. The amount of such policy shall be as deemed appropriate by the city. Such insurance must be in place no later than the date of acceptance of a franchise by a franchisee. This insurance shall be maintained in full force at the franchisee’s expense throughout the period of the franchise. The coverage shall be at least as broad as Insurance Service Office (ISO) Form Number CG 0001 (commercial general liability), including X, C, U, and ISO Form Number CA 00001 (commercial auto). The city may delineate more specific details concerning such insurance prior to the award of a given franchise.

(Ord. No. 95-239, § 31, 8-1-95. Code 2001 § 9-731.)

11.10.330 Recourse against bonds and other security.

Bonds and other security may be utilized by the city for any purpose, including, but not limited to, reimbursement of the city by reason of a franchisee’s failure to pay the city any sums due under the terms of this chapter or the franchise, reimbursement of the city for reasonable costs borne by the city to correct franchise violations not corrected by a franchisee after due notice; and monetary remedies or damages assessed against a franchisee due to default or violations of the franchise requirements or this chapter.

(1) Recourse. In the event franchisee has been declared to be in default by the city under FWRC 11.10.290, Revocation for cause, and if a franchisee fails, within 30 days of mailing of the city’s finding, to pay the city any franchise fee, penalties, or monetary sanctions, or fails to perform any of the conditions of the franchise, the city may thereafter foreclose against the performance bond and/or withdraw from any other security an amount sufficient to compensate the city’s damages, with interest at the legal rate. Upon such foreclosure or withdrawal, the city shall notify a franchisee in writing, by first class mail, postage prepaid, of the amount and date thereof.

(2) Restoration. Within 30 days after mailing notice to a franchisee that the city has foreclosed franchisee’s performance bond or that any amount has been withdrawn by the city from the other security pursuant to subsection (1) of this section, a franchisee shall deposit such further bond or sum of money, or other security, as the city may require, sufficient to meet the requirements of this chapter.

(3) Rights of the city. The rights reserved to the city with respect to any bond or security are in addition to all other rights of the city whether reserved by this chapter or authorized by law, and no action, proceeding, or exercise of a right with respect to any bond or other security shall constitute an election or waiver of any rights or other remedies the city may have.

(Ord. No. 95-239, § 32, 8-1-95. Code 2001 § 9-732.)

11.10.340 Equalization of civic contributions.

In the event the city grants an overlapping franchise under terms and conditions materially different from those in the existing franchise, then the franchisee may, within six months of the grant of such overlapping franchise, elect to come under the same terms and conditions as the overlapping franchise. Said election shall apply to the franchisee’s entire franchise area and shall become effective upon the franchisee’s filing with the clerk of the city its written acceptance, and its agreement to be legally bound to comply with all terms and conditions applicable to the overlapping franchise.

(Ord. No. 95-239, § 33, 8-1-95. Code 2001 § 9-733.)

11.10.350 Inconsistency.

If any portion of this chapter should be inconsistent or conflict with any rule or regulation now or hereafter adopted then to the extent of the inconsistency or conflict, the rule or regulation of the applicable federal or state agency shall control for so long, but only for so long, as such rule, regulation, or law shall remain in effect. The remaining provisions of this chapter shall not be effected thereby.

(Ord. No. 95-239, § 34, 8-1-95. Code 2001 § 9-734.)

11.10.360 Severability.

The provisions of this chapter are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this chapter or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the chapter, or the validity of its application to other persons or circumstances.

(Ord. No. 95-239, § 35, 8-1-95. Code 2001 § 9-735.)

11.10.370 Ratification.

Any act consistent with the authority and prior to the effective date of the ordinance codified in this chapter is hereby ratified and affirmed.

(Ord. No. 95-239, § 36, 8-1-95. Code 2001 § 9-736.)

11.10.380 Effective date.

This chapter shall take effect and be in full force five days from and after its passage, approval, and publication as provided by law.

(Ord. No. 95-239, § 37, 8-1-95. Code 2001 § 9-737.)

Cross reference: Businesses, FWRC Title 12.