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HomeMy WebLinkAboutOrd 0636 - Cable and Signal Distribution Franchise with Clearview TV Cable (Repealed by Ord 675)CITY OF TUKWILA FOLLOWS: WASHINGTON ORDINANCE NO. 636 REPEALED BY 675 AN ORDINANCE of the City of Tukwila, Washington, granting to Clearview TV Cable, Inc., a Washington corporation, the non exclusive right, privilege and franchise to construct, install, operate and m a coaxial cable subscriber system for television and other electronic signal distribu- tion throughout the City of Tukwila, Washington, and providing and imposing provisions, conditions and regulations relating thereto. THE CITY COUNCIL OF THE CITY OF TUKWILA, DO ORDAIN AS Section 1: Definitions: For the purpose of this ord- inance the following terms, phrases, words, and their derivations shall have the following meaning: (a) "City" is the City of Tukwila, Washington. (b) "Grantee" is Clearview TV Cable, Inc., a Wash- ington corporation. (c) "Person" is any person, firm, partnership, assoc- iation, corporation, company or organization of any kind. (d) "Community Antenna Television System" or "Coaxial Cable Subscriber System" is defined as a facility inter- connecting subscribers to such a service system of a common source or sources of electro- magnetic intelligence derived from television and other electronic signal sources. Section 2: Grant of Authority: The City of Tukwila hereby grants to Clearview TV Cable, Inc., a Washington corporation for a period of fifteen (15) years from the effective date of this ordinance, the non exclusive right, privilege, authority and franchise to construct, install, erect, operate and maintain in, upon, along, across, over and under the streets, alleys, public ways now laid -1- out or dedicated and all extensions thereto and additions thereto in the City of Tukwila, Washington, poles, wires, cables, under- ground conduits, manholes and other fixtures and appurtenances nec- essary for the operation and maintenance in the city of a community antenna television system or systems. Section 3: Limitations: All rights, privileges and authority granted by Section 2 hereof are subject to the terms, limitations and conditions herein contained. The right and franchise herein granted shall not be exclusive and the City reserves the right to grant a similar use of said streets, alleys, public ways and places to any person or persons at any time during the period of this transaction or there- after. Section 4: Compliance with Applicable Laws and Ordinances: Grantee shall at all times during the life of this franchise be subject to all laws of the City of Tukwila, and to all laws, rules, regulations of Federal, State and local bodies and agencies, that are now in effect or that hereafter may be enacted or promulgated relating in any way to the exercise by the grantee of its rights under this franchise. Section 5: Liability and Indemnification: The Grantee shall at all times protect, indemnify, and hold harmless the City from all liability, claims, actions, suits, laws, expense, costs, or damage of every kind and description, including out -of- pocket expenses, such as attorneys fees, and shall also include the reasonable value of any services rendered by the city attorney or his assistants or any employees of the City, due to casualty, accident, or damage either to the City or its property, or to other persons or property, which may at any time arise or occur by reason of the exercise by the Grantee of any of the rights and privileges herein granted, or by reason -2- of the performance of or in connection with any work or activity by the Grantee. The Grantee, at the time of acceptance of the terms and conditions of this franchise as hereinafter provided, shall furnish to the City and shall thereafter maintain in full force and effect during the life of this franchise, with a carrier or carriers, satisfactory to the City, the following: (a) Bodily injury liability insurance having limits of $300,000.00 for bodily injury (including death) to any one person and $300,000.00 for bodily injury (including death to more than one person arising out of any single accident. (b) Property damage liability insurance with limits of $100,000.00 for damage to one person and $300,000.00 for property damage resulting from any one accident. The City shall be named Co- insured on all such liability policies and each Grantee agrees to deliver all such policies of insurance or certificates of the same, as issued by the insurance company or companies, evidencing that such insur- ance is in effect, and renewal policies or certificates, evidencing the renewal thereof, to the City Clerk of the City, all such renewal policies or certificates to be delivered to said City Clerk not less than twenty days (20) prior to the expiration of such policy or policies. Upon the failure of the Grantee to comply with the terms and provisions of this section, the City Council, of the City may, upon ten (10) days prior notice to such grantee in writing, revoke all rights and privileges of such grantee under this franchise and cancel the franchise as to such grantee. -3- -4- Section 6: Performance Bond: The Grantee shall post a surety bond with the City Clerk of the City in the face amount of $10,000.00 with one or more sufficient surety satisfactory to the City, which bond shall be in effect at all times during the period of this franchise and which bond shall insure and guarantee unto the City a faithful performance by the Grantee of all the terms and con- ditions and requirements herein and in addition, said bond shall indemnify and hold harmless the City from any and all claims, costs, suits, actions, or damages of every kind and description which may occur to or be suffered by any person by reason of any construction or maintenance or opening in any street, alley, avenue or other public place made by the Grantee or his agents, subcontractors or represent- atives, and, in addition, said bond shall indemnify and hold harmless the City from any and all claims, losses, suits and damages that may arise by the acts of such Grantee, his agents, subcontractors and representatives pursuant to and as a result of this franchise, and, that the Grantee will replace and restore said streets, alleys, avenues, plantings or other public or private property or improvement to as good state or condition as at the time of commencement of said work and, providing a recovery on the bonds in case of failure to perform any of the terms and conditions of this ordinance and franchise granted hereunder. Section 7: Operation Beginning Completion: Grantee shall begin the construction of its system or systems within the City of Tukwila within a period of three months from the date of the passage of this ordinance and shall complete its basic installation within seven months from the date of starting construction, providing that the City Council shall have the right to extend the time for completion if the Grantee shows evidence of a reasonable cause for delay, such as acts of God and similar causes of delay. Section 8: Standards: The Grantee's system shall be designed, installed and maintained in accordance with the highest and best standards of the industry and similar industries engaged in the transmission and distribution of television signals. Section 9: Service to Customers: Grantee shall fur- nish its subscription service commensurate with that which is available under other CATV systems to all persons when feasible to do so and when such person agrees to abide by such company's rea- sonable rules and regulations. The franchise holder shall offer service to all per sons,desiring to subscribe where such person resides within the area of this franchise and the point of reception is within three hundred feet of the closest existing facility of franchise holder or to two or more subscribers for a distance from the existing facilities at the ratio of one subscriber per three hundred feet. The cost of extending facilities along the road or right -of -way shall be borne by the franchise holder and the cost of extending lines from the road or right -of -way to the subscriber may be contracted for between the franchise holder and subscriber, provided that charges for extension and connection are reasonable. The foregoing shall not be construed as to preclude franchise holder from extending services upon its own terms to subscribers where the point of reception is beyond the ratio of one subscriber per three hundred feet or multiples thereof. Section 10: Jurisdiction and Control over Services: The Grantee shall maintain and operate its system and render effi- cient services to its customers so long as its franchise is effective and shall, during such period abide by finally adjudicated rules and regulations of the Federal Communications Commission or other gov- ernmental body having jurisdiction regarding the operation of CATV Systems generally. -5- Section 11: Rates: The rates and charges for television and radio signals distributed hereunder shall be fair and reasonable and no higher than necessary to meet all costs of service (assuming efficient and economical management), including a fair return on the original cost, less depreciation, of the properties devoted to such service (without regard to any subsequent sale or transfer price or cost of such properties). The City Council shall have the power, authority and right to cause the grantee's rates and charges to conform to the provisions of the above paragraph, and for this purpose, it may deny increases or order reductions in such rates and charges when it determines that in the absence of such acts on its part the grantee's rates and charges or proposed increased rates and charges will not conform to the above paragraph. No action shall be taken by the City Council with respect to the grantee's rates under this section until the grantee has been given twenty (20) days notice thereof and an opportunity to be heard by the Council with regard thereto. Section 12: Rate Schedule: The Grantee herein shall keep on file with the City Clerk copies of its current rate schedule, sched- ule of insulation charges, contracts with their subscribers, a state- ment as to area covered, and Grantee's address to which any notices may be sent by the City. Section 13: Complaints: If, within any sixty (60) con- secutive days during the term of this franchise, the City receives three or more written complaints, from the subscribers of Grantee, claiming that the rates or charges made by such Grantee from the television service contemplated herein are unjust, unfair or un- reasonable, and not comparable with like rates elsewhere, the City -6- Council of the City may hold a public hearing for the purpose of determining whether such rates or charges are just, fair and reasonable in accordance with Section 12 and may order such rates or charges reduced if, following such hearing, it is determined that the same are unjust, unfair or unreasonable, and may make effective any such order by penalties or forfeiture of such Grantee's franchise. The City shall never prescribe rates or charges, as a result of any hearing aforesaid, other than such as shall be just, reasonable, adequate and sufficient. Section 14: Appeals from City's Decision: Should any Grantee believe that any order of said City Council promulgated pursuant to Section 13 hereof, or any other section of this ordinance, is unjust and unreasonable, such grantee shall be allowed to test the justness and reasonableness of the same by appropriate action of any Court having jurisdiction, provided such action is commenced within thirty (30) days after the service of a true and correct copy of such order, whether made by resolution or otherwise, upon such Grantee and in such Court action such order may be entered in the premises as shall be awarded by the facts developed upon the trial law applicable thereto. Section 15: Operation and Maintenance of System: The Grant shall render efficient service, make repairs promptly, and interrupt service only for a good cause and for the shortest time possible. Such interruptions insofar as possible shall be proceeded by reasonable notice and shall occur during periods of minimum use of the system. The Grantee shall maintain an office in King County, which shall be open during all usual business hours, and have a listed telephone, and be so operated that complaints and requests for repairs or adjustments may proceed at any time. -7- Section 16: Use of Poles: The City shall at all times have the right to make free use of any or all of Grantee's poles for attachment of wires and appliances used in connection with any City owned fire alarm system or police signal system. Section 17: Trees and Shrubs: No trees or shrubs should be cut or trimmed in any street or right -of -way by any Grantee with- out prior written permission of City Supervisor and under his dir- ection or that of his authorized agent. Section 18: Grantee Rules: The Grantee shall have the authority to promulgate such rules, regulations, terms and condi- tions governing the conduct of its business as shall be reasonable and necessary to enable the grantee to exercise its rights and to perform its obligations under this franchise and to assure an un- interrupted service to each and all of its customers; which rules and regulations however, shall not be in conflict with any of the terms and conditions of this franchise or of the rules and regula- tions of the City or of any public agency or commission having any jurisdiction over the subject matter of this franchise or of the Grantee. Section 19: Program Alterations: All programs of broad- casting stations carried by the Grantee shall be carried in their entirety as received, without announcements and advertising and without additions. Section 20: Other Business Activities: Neither the Grantee hereunder nor any shareholder of the Grantee shall engage in the business of selling, repairing, or installing television receivers, radio receivers, or accessories for such receivers within the City of Tukwila during the term of this franchise and the Grantee shall not allow any of its shareholders to so engage in any such business. This franchise shall authorize only the operation of a CATV System as provided for herein, and does not take the place of any other franchise, license, or permit which may be required by law of the Grantee. Section 21: Safety Requirements: The Grantee shall at all times employ ordinary care and shall install and maintain and use commonly accepted methods and devices preventing failures and acci- dents which are likely to cause damage, injuries or nuisances to the public. All structures and all lines, equipment and connections, in, over, under and upon the streets, sidewalks, alleys, and public ways or places of the City, wherever situated or located, shall at all time be kept or maintained in a safe, suitable, substantial condition and in good order and repair. Section 22: Approval of Plans Necessary Before Construction of the System: Prior to commencement of construction or alteration of any portion of such transmission or distribution system, the Grantee shall first file with the City Supervisor its application for a permit to do such work together with the plans and specifications, in dupli- cate, showing the position, depth and location of all lines of fac- ilities sought to be constructed, laid, or installed and erected at that time, showing the relative position to existing streets, rights- of-way and public or private utilities. The distribution system shall be laid in exact conformity with said map of definite location, except in instances which devia- tion may be allowed thereafter in writing by the City Supervisor or his duly authorized agent pursuant to application by said Grantee. The plans and specifications shall specify the class and type of material and equipment to be used, manner of excavation, construction, -9- insulation, back fill, erection of temporary structure, erection of permanent structures, traffic control, traffic turn outs, road con- struction and any other additional information which may be required by said supervisor or his duly authorized agent. No such construction shall commence by Grantee without Grantee first securing such written permit from said supervisor, including approval endorsed on one side of said plans and specifications which shall be returned to the Grantee. All work shall be subject to the approval of and shall be passed by inspection of the City Supervisor or his duly authorized agent. The Grantee shall pay all reasonable cost and expenses in- curred by the examination, inspection and approval of such work, which inspection or approval shall be made by said Supervisor or his auth- orized Agent. Section 23: Use of Existing and Hereafter Erected Utility Poles Defined: The Grantee where feasible shall use existing power and telephone poles, etc. In the event it is not feasible for the company to use the existing power company poles or telephone poles as set forth above or the use thereof has been denied by the power company or telephone company, the company may use other existing available poles or go underground, provided approval is obtained by the City Supervisor or his duly authorized agent. Section 24: Underground Installations: In areas where there are no available approved poles for use by the Grantee in the construction, operation and maintenance of its system and in areas where electric wires and cables now or hereafter may be laid under- ground or in areas where poles exist and the company options to utilize underground facilities, the wires and cables of the community antenna television system must be installed and maintained or removed -10- and installed and maintained underground at no expense to the City and in full compliance with any and all ordinances and other laws and regulations now or hereafter in effect and relating thereto. When any such facilities have been put underground the grantee must submit to the City plans on all underground facilities for inspection and approval. Section 25: Location Distribution Systems Minimum Interference with Use by Public: All transmission and distribution lines, structures and equipment erected by the Grantee 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 by the City and the public and the rights are reasonable convenience of property owners who adjoin any of the said public ways and places. Section 26: Disturbance of Streets Private Improve- ments Duty to Repair: In case of any disturbance of pavement, sidewalk, driveway or other servicing or public or private improve- ments thereto or contained therein the Grantee shall at its own cost and expense and in the manner approved by the City Supervisor, re- place and restore all paving, sidewalks, driveway or surface of any street or alley disturbed and all public or private improvements thereto or contained therein in as good condition as before said work was commenced. Section 27: Grantee's Duties to Move and Relocate Poles, etc., Upon Alteration and Change of Grade of Streets and Changes in Other Public Buildings and Places: In the event that at any time during the period of this franchise the City shall elect to change, alter or remove or construct any new public structures of places or to alter or change the grade of any street, alley or other public way, the Grantee, upon reasonable notice by the City, shall remove and relocate its poles, wires, cables, underground conduits, man- holes and other fixtures and facilities at its own expense. Section 28: Moving of Buildings Grantee's Duty to Raise or Lower Lines: Grantee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings, the expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same and the grantee shall have the authority to require such payment in advance. The Grantee shall be given not less than 48 hours advance notice as to arrange for such temporary wire changes. Section 29: Grantee shall Abstain Completely from Engaging in Repair or Service, Leasing or Sales of Television Sets in the City of Tukwila: Grantee shall not in any way influence its cable service subscribers in the collection of the service and sales companies of retail stores, in connection with the purchase or repair of television sets or attempt to influence its subscribers as to make or model of television sets that they may wish to purchase. Section 30: Removal of Facilities Upon Request: Upon termination of service to any subscriber, the Grantee shall promptly remove all of its facilities and equipment from the premises of such subscriber upon his request. Section 31: Preferential or Discriminatory Practice Pro- hibited: The Grantee shall not as to rates, charges, service fac- ilities, rules and regulations or in any other respect subject any person to any prejudice or disadvantage, provided that nothing in this franchise shall be deemed to prohibit the establishment of a graduated scaled charges and classified rate schedule to which any customer coming within such classification would be entitled. -12- Section 32: Service by Grantee: The Grantee will pro- vide service as permitted by Federal Communications Commission Rules and Regulations including local weather and FM signal services on a 24 hour basis. Section 33: Prohibition of Pay TV: The Grantee is specifically barred from delivering television signals directly or indirectly from any pay television source. Section 34: Insolvency or Bankruptcy of the Grantee: In the event the Grantee should be adjudged bankrupt or insolvent or an assignment be made for the benefit of creditors either voluntarily or involuntarily then and in that event this franchise as to the said bankrupt or insolvent Grantee shall be terminated and shall not be assignable by any process of law, and it shall not pass under the control or disposition of any trustee or receiver or assignee. Section 35: Change of Control of Grantee: Prior approval of the City Council shall be required when ownership or control of more than thirty percent (30 of the right of control of Grantee is acquired by a person or group of persons acting in concert, none of whom already own or control thirty percent (30%) or more of such right of control, singly or collectively. By its acceptance of this franchise the Grantee specifically grants and agrees that any such acquisition occurring without prior approval of the City Council shall constitute a violation of this franchise by Grantee. Section 36: Filings and Communications with Regulatory Agencies: Copies of all petitions, applications and communications submitted by the Grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other Federal or State Regulatory Commission or Agency having jurisdiction in respect to any matters affecting CATV operations authorized pursuant to this franchise, shall also be submitted simultaneously to the City Council. ulations: The City has the right to adopt in addition to the pro- visions herein contained in existing applicable ordinances or State of Washington laws such additional rules and regulations not in con- flict with rules and regulations of the Federal Communications Com- mission pertaining to CATV operations as it shall find necessary and lawful in the exercise of its police power. Section 37: Right of the City to adopt Rules and Reg- Section 38: Use of the System by the City and Schools: At all times during the term of this franchise Grantee shall promptly and without discrimination furnish to the City and its successors, persons and corporations inhabitant therein who request the same and agree to abide by Grantee's reasonable rules and regulations, tele- vision reception commensurate with that which is reasonably avail- able under any obtainable coaxial cable system. Grantee will pro- vide off -air broadcast educational television signals to all public and private, non profit, educational institutions within Grantee's service area at no cost for use in the teaching facilities of such institutions and upon request by the City Council. Grantee will also provide television signals at no cost to such municipal build- ings in Grantee's service area as may be designated by the City Council. The point of connection for such service will be at the distribution cable as it is constructed along the street and such educational institutions or the City, in the case of municipal buildings, shall install or pay the cost of installing the drop for such distance as is necessary from the point of cable connection to the building to be served and any distribution cables within such buildings and shall maintain the same from the point of connection. In the case of any emergency or disaster, the Grantee shall, upon request of the City Council, make available its fac- ilities to the City or other public agency for emergency use during the emergency or disaster period. -14- Any other service or facilities furnished by the Grantee shall be upon such terms and conditions as may be mutually agreed upon. Section 39: Supervision and Inspection by the City; The City shall have the right to make such inspections of the construc- tion or installation or maintenance work in connection with said system as it shall find necessary to insure compliance with all ordinances and rules and regulations now in effect or that may here- after become effective. The City and /or City Supervisor reserves the general right to see that the system of the company is constructed and main- tained in a safe condition and if an unsafe condition is found to exist to order the company in writing to make the necessary repairs and alterations specified therein forthwith; and if the Grantee shall fail to make such repairs or alterations, the City may make them or have them made and collect all costs and expenses thereof from the company. Section 40: Forfeiture of Franchise: In addition to all other rights and powers pertaining to the City by virtue of this franchise or otherwise, the City reserves the right to terminate and cancel this franchise and all rights and privileges of the Grantee hereunder in the event that the Grantee: 1. Violates any provision of this franchise or any rule, order, or determination of the City or City Council made pursuant to this franchise; 2. Becomes insolvent, unable or unwilling to pay its debts or is adjudged a bankrupt; 3. Attempts to evade any of the provisions of this franchise or practices any fraud or deceit upon the City; or -15- 4. Fails to begin construction as set forth in this ordinance. Such determination and cancellation shall be by ordinance duly adopted after ten (10) days' notice to the Grantee and shall in no way affect any of the City's rights under this franchise or any provisions of law. In the event that such termination and cancellation depends upon a finding of fact, such finding of fact as made by the City Council or its representatives shall be con- clusive. Provided, however, that before this franchise may be terminated and cancelled under this Section, the Grantee must be provided an opportunity to be heard before the City Council. Section 41: Subscriber Refunds or Termination of Service: If any subscriber of the Grantee of less than three years terminates service because of the Grantee's failure to render service to such subscriber of a type and quality provided for herein, or if service to a subscriber of less than three years is terminated without good cause or because the Grantee ceases to operate the CATV business authorized herein for any reason, except expiration of this fran- chise, the Grantee shall refund to each subscriber in an amount equal to the initial tap -in and connection charges paid by him divided by 36 and multiplied by a number equal to 36 minus the number of months subscriber has been on the system. Section 42: Further Agreement and Waiver by Grantee: The Grantee agrees to abide by all provisions of this franchise, and further agrees that it will not at any future time set up as against the City or the City Council the claim that the provisions of this franchise are unreasonable, arbitrary, or void. Section 43: Litigation and Venue: City shall have the right to institute or intervene as a party in any action in any Court -16- of competent jurisdiction seeking mandamus, injunctive or other relief to compel compliance with any provision of this ordinance or of any rule, regulation or order adopted thereunder, or to restrain or otherwise prevent or prohibit any illegal or unauth- orized conduct in connection therewith. The venue of all such acts or proceedings as above provided and set forth shall be in the Superior Court of King County, Washington. Section 44: Franchise Payment -Gross Earnings: Grantee shall pay the City five percent (5 of the gross revenue received per annum by Grantee from its customers within the corporate limits of the City as now or hereafter constituted for service rendered customers through the coaxial cable. Said payments are to be made on a quarterly basis payable on or before the last day of January, April, July and October for the proceeding quarter. This franchise tax shall be credited against any business and occupation tax or franchise tax or other tax required to be paid by the Grantee. In computing the gross received from the operation of said franchise, charges made and paid for the installation of connection work to customers shall not be considered gross income for one year after the effective date of the franchise. Section 45: Grantee's Duties: The Grantee shall keep accurate records and accounts of its operations and the Grantee shall have access, at all reasonable hours, to the Grantee's plans, contracts and engineering accounting and other necessary records relating to the construction, extension and operation of the company which are relevant to this franchise. The Grantee shall file with the City Clerk the following records and reports: 1. Grantee Rules and Regulations. Copies of such rules, regulations, terms and conditions adopted by the Grantee by the conduct of its business relevant hereto. -17- 2. Gross Revenue. A quarterly summary report showing gross revenues received by the Grantee from its operations within the City during that preceding quarter. Section 46: Assignment or Transfer of Interest: The franchise holder shall not have the right to assign or transfer this franchise without consent of the City. Section 47: Default Forfeiture Provision: Upon the failure of the Grantee to comply with any of the terms, provisions, restrictions, conditions and limitations hereof, or of any pro- visions, restrictions or limitations contained in any future charter of the City, within sixty (60) days after service of written notice to comply with the same has been made and served by order of the City Council upon such Grantee, unless a shorter time is elsewhere spec- ified herein, said Council shall be authorized upon behalf of the City to declare by ordinance an immediate forfeiture of this fran- chise as to such grantee and said Council may in such case declare and enforce such forfeiture. This remedy shall be in addition to all other rights, and remedies of the City as elsewhere provided herein. Section 48: Abandonment of System: If the Grantee for any reason discontinues operation, including upon the termination of the franchise, or abandons said television system under this franchise, it shall within a reasonable time remove or cause to be removed all of its facilities and equipment as requested by the City and at no expense to the City and shall place all portions of the street right -of -ways, streets, public ways, alleys, etc., that Grantee has disturbed in as good a condition for public use as abutting por- tions thereof. -18- Section 49: Grantee Shall Pay Administrative Cost: The Grantee shall pay to the City $200.00 for the administrative cost of the City resulting from the granting of this franchise. Section 50: Effective Date: This ordinance shall take effect and be in force five (5) days after its passage, approval and publication. Section 51: Acceptance of Franchise by Grantee: The Grantee shall be deemed to have forfeited and abandoned all rights and privileges to the franchise conferred by this ordinance unless the Grantee shall within thirty (30) days after the effective date of this ordinance file in the office of the City Clerk, a written acceptance of the rights and privileges hereby conferred subject to the terms, conditions, stipulations and obligations herein con- tained and in case of its failure to do so, this ordinance shall be null and void and of no force and effect whatsoever. Section 52: Severability Clause: If any part or parts of this ordinance are for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance. PASSED BY THE CITY COUNCIL AND APPROVED BY THE MAYOR this /7 day of f�L�l��c� 1970. ATTEST: CITY ATTORNEY CITY CLERK APPROVED AS TO FORM: PUBLISHED IN RECORD CHRONICLE .1/ /9 MAYOR -19-