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HomeMy WebLinkAboutOrd 1687 - Franchise Rights to Cable Communications System Operators ASS �11LA, w':ts. q `s r 's,-908„ City o T Washington Ordinance No. A� 9 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, SETTING FORTH THE TERMS AND CONDITIONS FOR THE GRANT OF NON EXCLUSIVE FRANCHISE RIGHTS TO CABLE COMMUNICATIONS SYSTEM OPERATORS WITHIN THE CITY LIMITS OF TUKWILA, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Tukwila recognizes that its citizens desire to avail themselves of the benefits derived from a cable communications system and the range of services it provides; and WHEREAS, the City of Tukwila is a municipal corporation in the State of Washington and is authorized to grant nonexclusive franchises to private interests for the purposes of providing cable communications systems within the jurisdictional boundaries of Tukwila; and WHEREAS, the provision of cable services depends on public rights of way for the location and operation of critical components of the cable system; and WHEREAS, the City of Tukwila desires to ensure the safety and public welfare of its citizenry through the regulation of the operations and maintenance of such cable communications systems within the public rights of way; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1: Definitions. (a) "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). (b) "The Act" means the Cable Television Consumer Protection and Competition Act of 1992, and any subsequent amendments. (c) "Addressability" means the ability of a system allowing a franchisee to authorize by remote control customer terminals to receive, change or to cancel any or all specified programming. (d) "Affiliate" means a condition of being united, being in close connection, allied, or attached as a member or branch. (e) "Applicant" means any person or entity that applies for a franchise. (f) "Basic Cable Service" The basic service tier shall, at a minimum, include all signals of domestic television broadcast stations provided to any subscriber (except a signal secondarily transmitted by satellite carrier beyond the local service area of such station, regardless of how such signal is ultimately received by the cable system) any public, educational, and governmental programming required by the franchise to be carried on the basic tier, and any additional video programming signals and service added to the basic tier by the cable operator. (g) "Cable services" means (i) the one -way transmission to subscriber of video programming or other programming service, and (ii) subscriber interaction, if any, which is required for the selection by the subscriber of such video programming or other programming service. Page 1 (h) "Channel" means a single path or section of the spectrum which carries a television signal. (i) "Character generator" means a device used to generate alpha numerical programming to be cablecast on a cable channel. (j) "City" means the City of Tukwila, a municipal corporation of the State of Washington. (k) "Cable system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service and other service to subscribers. (1) "Council" means the present governing body of the City or any future board constituting the legislative body of the City. (m) "Data Communication" 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. (n) "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. (o) "FCC" means the Federal Communications Commission, a regulatory agency of the United States government. (p) "Franchise" shall mean the initial authorization, or renewal thereof, issued by the City, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable system for the purpose of offering cable service or other service to subscribers. (q) "Franchisee" means the person, firm or corporation to whom or which a franchise, as herein above defined, is granted by the Council in the manner provided by this Ordinance and also means the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined by City ordinance. (r) "Gross revenues" means any and all receipts and revenues received directly or indirectly from all sources other than transactions related to real property by a franchisee and not including any taxes on services furnished by a franchisee, which are imposed on any subscriber or used by any governmental unit, agency or instrumentality and collected by a franchisee for such entity. Net uncollectible debts shall not be considered as revenue in this definition. (s) "Headend" means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment. (t) "High Definition Television (HDTV)" means a television system that will provide sharper picture definition than the current U.S. Standards, 525 lines per frame. (u) "Insertion point(s)" means location(s) where institutional programming can be initiated for distribution throughout the secured portion of the subscriber network. (v) "Installation" means the connection of the system from feeder cable to subscribers' terminals. (w) "Institutional services" means a cable communications system designated principally for the provision of non entertainment services to schools, public agencies or other non profit agencies, separate and distinct from the subscriber network, or on secured channels of the subscriber network. (x) "Interactive services" means services provided to subscribers where the subscriber either (i) both receives information consisting of either television or other signals and transmits signals generated by equipment under his/her control for the purpose of selecting what information they shall receive; or for any other purpose; or (ii) transmits signals to any other location for any purpose. (y) "NCTA" means the National Cable Television Association (z) "Office" means the person or entity designated by the City as being responsible for the administration of a franchise for the City. (aa) "Operator" means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of this Ordinance. (bb) "Premium services" means programming over and above those provided by basic services for which there is additional charge. (cc) "Property of Franchisee" means all property owned, installed or used by a franchisee in the conduct of its business in the City under the authority of a franchise granted in accordance with this Ordinance. Page 2 (dd) "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. (ee) "Public way" means the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, drive, circle or other public right -of -way, including, but not limited to, public utility easements, dedicated utility strips or rights -of -way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the City in the service area which shall entitle the City and a franchisee to the use thereof for the purpose of installing, operating, repairing and maintaining the cable system. Public way shall also mean any easement now or hereafter held by the City within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights -of -way as shall within their proper use and meaning entitle the City and a franchisee to the use thereof for the purpose of installing or transmitting franchisee's cable service as now or may hereafter be defined by Federal regulations over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appurtenances, attachments and other property as may be ordinarily necessary and pertinent to the cable system. (ff) "Subscriber" means a person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee's express permission. Section 2: Terms of Franchise. (a) 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 Ordinance. The City 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 Ordinance. Any franchise granted pursuant to this Ordinance 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 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 such changes, as the City shall deem necessary, including the dedication, establishment, maintenance, and improvement of all new rights -of -way and thoroughfares and other public properties. All franchises granted subsequent to the effective date of this Master Cable Ordinance shall be granted consistent with the terms and conditions of this Ordinance. (b) INCORPORATION BY REFERENCE: The provisions of this Ordinance 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 Ordinance and the franchise, the franchise shall be the prevailing document. (c) NATURE AND EXTENT OF THE FRANCHISE: Any franchise granted hereunder by the City shall authorize a franchisee, subject to the provisions herein contained: (1) To engage in the business of operating and providing cable 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, lines, cables, conductors, vaults, manholes, pedestals, attachments, supporting structures, and other property as may be necessary and pertinent 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. 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. (d) TERM OF FRANCHISE: The term of each franchise granted hereunder shall be established by the City Council. Section 3: Application. An applicant for an initial 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 non- refundable filing fee in the amount of $100.00 to cover the City's cost of processing the application. Such fee may be amended as necessary in the future by Resolution of the City Council. Page 3 Section 4: Hearing. Prior to the granting of a franchise, the City Council shall conduct a public hearing to determine the following: (a) That the public will be benefited by the granting of a franchise to the Applicant; (b) That the Applicant has 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 Ordinance; (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 facilities and systems incorporated in its application for a franchise; (f) The capacity of public rights -of -way to accommodate the cable system; (g) The present and future use of the public rights -of -way to be used by the cable system; and (h) The potential disruption to existing users of the public rights -of -way to be used by the cable system and the resultant inconvenience which may occur to the public. Section 5: Accentance. (a) No franchise granted pursuant to the provisions of this Ordinance shall become effective unless and until the ordinance granting same has become effective. (b) Within sixty (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, a franchisee shall file with the City Clerk its written acceptance of the franchise, in a form satisfactory to the City Attorney, together with the bond and insurance policies required by Sections 36 Insurance and 37 Performance Bond herein. Section 6: 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. Section 7: Rules and Regulations by the City. (a) In addition to the inherent powers of the City to regulate and control 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 powers. (b) The City reserves the right to delegate its authority for franchise administration to a designated agent. Section 8: Technical Standards. (a) Subject to Federal, State and local law, a franchisee shall comply with FCC rules, Part 76, Subpart K, Section 76.601 through 76.610 as amended, hereafter, and, at the minimum, the following: (1) Applicable City, County, State and National/Federal Codes and Ordinances; (2) Applicable Utility Joint Attachment Practices; (3) The National Electric Safety Code; ANSI C2; (4) Local Utility Code Requirements; (5) Local Rights -of -Way Procedures; (b) PREVENTIVE MAINTENANCE: A comprehensive routine preventive_maintenance program shall be developed, effected, and maintained to ensure continued top quality cable communications operating standards in conformance with FCC Regulations Part 76 or as may be amended. Page 4 Section 9: Parental Control Devices. A franchisee will make available at its cost including applicable handling fees a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber. Section 10: Construction Standards. All facilities constructed under this Ordinance 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 applicable section of the National Electrical Code, codes of the State of Washington, and City regulations pertaining to such construction. No construction and maintenance activities shall be conducted within the City rights -of -way without first obtaining a permit, except in cases involving an emergency, in which case the franchisee shall obtain a permit immediately following such emergency. Section 11: Construction Notification. Upon application for each construction permit a franchisee will submit to City its plan for advance notification for the proposed construction project. In the event that an emergency situation arises which precludes such advance notification, a franchisee shall subsequently inform the City of the nature of the extraordinary event and the action taken. Section 12: Undergrounding and Landscaning In those areas and portions of the City where the transmission or distribution facilities of public utilities are placed underground, then a franchisee shall likewise construct, and operate its transmission and distribution facilities underground. Where undergrounding is required as a result of a City street improvement project, the City shall provide trenching for underground installation of cable and a franchisee shall install its facilities along such street. All activities to achieve this status shall be conducted concurrently with other utilities but not necessarily in the same trench. Amplifiers and associated equipment in a franchisee's transmission and distribution lines may be placed in appropriate housing upon the surface of the ground. All new and upgrade construction shall be undergrounded anywhere in the City in accordance with the most current utilities undergrounding ordinance. Section 13: Construction in Right- of -Way. Whenever, in the sole opinion of the City, any of a franchisee's facilities or equipment need to be relocated or altered due to a construction or repair project by the City in a public way, a franchisee shall move or relocate said facilities or equipment within thirty (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 twenty -four (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. Section 14: Safety Reauirements. A. 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. B. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways 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. C. The City reserves the general right to see that the system of a franchisee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the City, the City will, after discussions with a franchisee, establish a reasonable time for a franchisee to make necessary repairs. If the repairs are not made within the established time frame, the City may make the repairs itself or have them made and collect all reasonable costs thereof from a franchisee. Section 15: 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 (7) 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 Page 5 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. 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. In such event, the City shall be responsible for determining the path of least interference. 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 for such temporary arrangement of the lines and poles of a franchisee. Section 16: Tree Trimming. Upon approval of the Director of Public Works, a franchisee shall have the authority to trim trees upon and overhanging streets, public ways and public places in the Franchise Area so as to prevent the branches of such trees from coming into contact with a franchisee's wires and cables, and if necessary, to clear a microwave path. A franchisee shall be responsible for debris removal from such activities. Failure to remove debris after a reasonable time shall result in the debris being removed by the City and the costs involved charged to the franchisee. Section 17: Rates. Within sixty (60) days after the grant of any franchise hereunder, a franchisee shall file with the City a complete schedule of all rates to be charged to all subscribers. Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, the franchisee shall provide the City and all subscribers a minimum of thirty (30) days prior written notice of such change. Subject to Federal, State and local law, the City may regulate the approval of increases of rates or charges for providing cable service and prescribe reasonable rate approval procedures. Section 18: Discounts. A franchisee shall offer a discount of thirty percent (30%) from the normal charge for basic services and installation to those individuals age sixty -two (62) or older or disabled who are the legal owner or lessee /tenant of their residence provided that their combined disposable income from all sources does not exceed the median income level Housing and Urban Development (HUD) standards for the Seattle Everett area for the preceding calendar year. The City or its designee shall be responsible for certifying to a franchisee that such applicants conform to the specified criteria. Section 19: Customer Service. A. A franchisee shall render repair service to restore the quality of the signal at approximately the same standards existing prior to the failure or damage of the component causing the failure and make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system. A log of all service interruptions shall be maintained for at least a period of one year. The City, after two (2) working days' notice, may inspect such logs. B. An employee of a franchisee shall answer and respond to all individual complaints received up until 5:00 p.m. weekdays. A franchisee may use an answering service to receive complaints after 5:00 p.m. weekdays and on weekends and holidays and shall respond to any system outage affecting more than five subscribers regardless of day and hour. A copy of the instructions to the answering service by a franchisee shall be furnished to the City or its designee. C. A technician shall be on call seven (7) days a week, twenty -four (24) hours a day. A franchisee shall respond immediately to service complaints in an efficient manner. D. A franchisee shall maintain a sufficient repair force to respond to individual requests for repair service within two (2) working days after receipt of the complaint or request, except Saturday, Sunday and legal holidays. All complaints shall be resolved within seven (7) days, to the extent reasonable. If a subscriber has notified a franchisee of an outage, no charge for the period of the outage shall be made to the subscriber if the subscriber was without service for a period exceeding twenty -four (24) hours. E. A franchisee shall supply at the time of a new connection, and periodically at least once a year, the title, address, and telephone number of the City official or his/her designee, to whom system subscribers may direct their concerns. Page 6 F. In no case will a Franchisee's service standards fall below the standards established by the National Cable Television Association (NCTA) which are attached herein as Appendix A and part of this Ordinance or any FCC regulation. Section 20: Telenhone Response. A franchisee shall maintain an adequate force of customer service representatives as well as incoming trunk lines so that telephone inquiries are met promptly and responsively. A franchisee shall have in place procedures for utilization of other manpower and/or recording devices for handling the flow of telephone calls at peak periods of large outages or other major causes of subscriber concern. A copy of such procedures and/or policies shall be made available to the City. In order that the City may be informed of a franchisee's success in achieving satisfactory customer relations in its telephone answering functions, a franchisee shall, upon request by the City, and routinely each quarter, provide the City with a summary that provides, the following: (a) Total number of calls received in reporting periods; (b) Time taken to answer; (c) Average talk time; (d) Number of calls abandoned by the caller; (e) Average hold time; (f) Percentage of time all lines busy; (g) An explanation of any abnormalities. This data will be compared to minimum standards of the NCTA being incorporated herein by reference or any amendment thereto increasing such NCTA standards, and shall be monitored by the City. Calls for service generated during period of system outages due to emergency affecting more than twenty -five (25) customers may be excluded from the service response calculations. The City shall have the sole determination as to what constitutes a system failure due to emergency and which calls shall be excluded from the service level calculations. Section 21: Failure to Improve Customer Service. The City or its designee shall review telephone response and customer service information with a franchisee. Improvements will be made by the franchisee in the appropriate categories which were found deficient in Sections 19 Customer Service and 20 Telenhone Resnonse from the last reporting period. Failure to do so may result in the calling of a public hearing by the City Council for the purpose of examining the reasons why such improvements were not achieved by a franchisee. An unsatisfactory record will result in the hearings being made part of an exhibit under Section 626(c)(1)(A) and (B) of The Act alleging that such practices have failed to conform with future refranchising requirements as stated therein. In addition, a franchisee's Corporate office shall be advised of the City's findings. Section 22: Franchise Fee. A franchisee shall pay to the City quarterly, on or before the thirtieth (30th) day of each January, April, July and October, a sum equal to five percent (5%) or greater of gross revenues as defined herein for the preceding three months. Such remittances shall be accompanied by forms furnished by the City to report detailed information as to the sources of such income. Section 23: Cable System Evaluation. In addition to periodic meetings, the City may require reasonable evaluation sessions at any time during the term of a franchise. It is intended that such evaluations cover areas such as customer service, response to the community's cable- related needs, and a franchisee's performance under and compliance with the terms of a franchise. During an evaluation session, a franchisee shall fully cooperate with the City and shall provide without cost such reasonable information and documents as the City may request to perform evaluations. Page 7 If the City has concerns because of uncorrected reoccurring problems with the franchisee's cable system it may retain an independent consultant to conduct an analysis of the cable system and report its findings to the City. The City shall take into consideration any efforts taken to correct such deficiencies. The report prepared by the consultant in response to the City's request for a system evaluation shall include: (a) A description of the technical problem(s) in cable system performance which precipitated the special tests; (b) What cable system components were tested; (c) The equipment used and procedures employed in testing; (d) The method, if any, by which specific performance problems may be resolved; (e) Any other information pertinent to said tests and analyses which may be required by the City, or determined when the test is performed. If the tests indicate that the system is not in compliance with FCC standards or the requirements of the Franchise, a franchisee shall reimburse the City for any costs involved in conducting such tests, such as consultant fees or other expenses. Such fees or expenses shall not exceed two thousand five hundred dollars ($2,500.00) for each evaluation. Section 24: Periodic Meetings. Upon request, a franchisee shall meet with designated City officials and/or designated representative(s) to review the performance of a franchisee for the preceding period. The subjects may include, but are not limited to, those items covered in the periodic reports and performance tests. Section 25: Record Inspection. Subject to statutory and constitutional limits and two working days' advance notice, the City reserves the right to inspect the records of a franchisee necessary for the enforcement of a franchise and verification of the accuracy of franchise fee payments 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 such information as financial records, subscriber records within the context of Section 631 of the Act and plans pertaining to a franchisee's operation in the City. Section 26: Reports. A franchisee shall furnish, upon request, a report of its activities as appropriate. Such report shall include: A. Most recent annual report. B. A copy of the 10 -K Report, if required by the Securities and Exchange Commission. C. The number of homes passed. D. The number of subscribers with basic services. E. The number of subscribers with premium services. F. The number of hook -ups in period. G. The number of disconnects in period. H. Total number of miles of cable in City. I. Summary of complaints received by category, length of time taken to resolve and action taken to provide resolution. J. A statement of its current billing practices, and a sample copy of the bill format. K. A current copy of its subscriber service contract. L. Report on Operations Such other reports with respect to its local operation, affairs, transactions or property that may be appropriate. Section 27: Pro rg For informational purposes a franchisee shall file a listing of its programming and the tiers in which they are placed. A franchisee shall consider the City's suggestions of general program categories as determined from time to time in residential questionnaire polls. The results of initial such surveys will be appended to the respective franchise ordinances. Page 8 Section 28: Non Discrimination. A 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 Ordinance 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 or reduced in the case of qualified senior citizens or disabled persons. A franchisee will not deny access to cable communications service to any group of potential residential subscribers because of the income of the residents of the local area in which the group resides. Section 29: Continuity of Service. It shall be the right of all subscribers to continue receiving service so long as their financial and other obligations to a franchisee are fulfilled. (a) 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. (b) In the event a franchisee fails to operate a system for seventy -two (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 act of God 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. Section 30: Franchise Renewal. The provisions of Section 626 of The Act or other applicable Federal or State law will govern the actions of the City and a franchisee in proceedings relating to franchise renewal. The City expressly reserves the right to establish guidelines and monitoring systems in accordance with the provisions of the Act to measure the effectiveness of a franchisee's performance during the term of such franchise. Section 31: Transfer of Ownershin. A franchisee's right, title, or interest in the Franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an Affiliate, without the prior consent of the Franchising Authority, with such consent not being unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by other hypothecation, or by assignment of any rights, title, or interest of the franchisee in the Franchise or Cable System in order to secure indebtedness. Approval shall not be required for mortgaging purposes provided that the collateral does not specifically affect the assets of this franchise, or if the said transfer is from a franchisee to another person or entity controlling, controlled by, or under common control with a franchisee. In any transfer of a franchise requiring City approval, the applicant must show technical ability, financial capability, legal and general qualifications as determined by the City. Applicant must agree to comply with all provisions of the franchise. Costs associated with the transfer process shall be reimbursed to the City. An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of fifty percent (50 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. Regardless of the circumstances, a franchisee shall promptly notify the City prior to any proposed change, transfer, or acquisition by any other party of a franchisee's company. 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. Page 9 Section 32: Removal 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 or 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 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 twelve (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 Franchise or other City ordinances or the Franchise has been terminated, canceled or has expired, a franchisee shall promptly, upon being given ten (10) days' notice, remove within ninety (90) days 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, a franchisee shall promptly restore those portions of the street or those other areas from which such property has been removed, in accordance with the most current standards in effect at the time, to the satisfaction of the City. Such approval shall not be unduly withheld. Any property of a franchisee remaining in place ninety (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 ninety (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. In the event the City and a franchisee are unable to agree as to whether an abandonment is voluntary for the purposes of this Section either party may invoke arbitration to resolve such question. Section 33: Revocation for Cause. If a franchisee willfully violates or fails to comply with any of the material provisions of this franchise, the City shall give written notice to a franchisee of the alleged non compliance of its franchise. A franchisee shall have forty -five (45) days from the date of notice of non compliance to cure such alleged default or, if such default cannot be cured within forty -five (45) days, to present to the City a plan of action whereby such default can be promptly cured. If such default continues beyond the applicable dates agreed to for such cure, the City shall give a franchisee written notice that all rights conferred under this Ordinance and its franchise may be revoked or terminated by the Council after a public hearing. A franchisee shall be entitled to not less than thirty (30) days' prior notice of the date, time and place of the public hearing. The City may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling a franchisee to comply with the provisions of the franchise and recover damages and costs incurred by the City by reason of a franchisee's failure to comply. Section 34: Effect of Termination for Non Compliance. Subject to State and Federal law, if any franchise is terminated by the City by reason of a franchisee's non compliance, 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 Act. 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 Section 32 Removal and Abandonment of Property of Franchisee of this Ordinance. Section 35: Indemnity Hold Harmless. A franchisee will indemnify and hold harmless the City from any and all liabilities, fees, costs and damages, except in the case of judicially determined gross negligence and/or willful misconduct of the City, 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 alteration of a franchisee's facilities or any other actions of a franchisee in the City. 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. Page 10 Section 36: Insurance. A franchisee shall, concurrently with the filing of an acceptance of award of any franchise granted hereunder, furnish to the City and file with the City Clerk a general comprehensive liability insurance certificate, for the purpose of 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 a franchisee. Such policy shall provide minimum limits of one million dollars ($1,000,000.00) for both personal injury and/or property damage and shall remain in full force and effect at all times during the existence of any franchise granted hereunder. The policies mentioned in the foregoing paragraph shall name the City as additional insured and shall contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the City thirty (30) days in advance of the effective date thereof. If such insurance is provided by a policy which also covers a franchisee or any other entity or person other than those named above, then such policy shall contain a cross liability endorsement. Section 37: Performance Bond. A franchisee shall promptly repair or cause to be repaired any damage to City property caused by a franchisee or any agent of a franchisee. A franchisee shall comply with all present and future ordinances and regulations related to excavation or construction and, if deemed necessary by the City, shall be required to post a performance bond or other surety acceptable to the City, in an amount specified by the City, which warrants that all restoration work will be done promptly and properly and that penalties, if any, after final adjudication are paid to the City within ninety (90) days of such finding. Section 38: Franchising Costs A franchisee shall pay to the City upon acceptance of any franchise granted hereunder, the City's out -of- pocket costs associated with the franchising process. The City shall provide the franchisee an itemization of its anticipated costs. Such payment is in addition to franchise fee payments. Payment is due within thirty (30) days of receipt of appropriate invoice from the City. Section 39: Equalization of Civic Contributions In the event of one or more franchises being granted, the City may require that such subsequential franchisees pay to the City an amount proportionally equal to franchising costs contributed by the initial franchisee. These costs may include but are not limited to such features as access and institutional network costs, bi- directional or equivalent cable installed to municipal buildings and similar expenses. On the anniversary of the grant of each later awarded franchise, such franchisees shall pay to the City an amount proportional to the amount contributed by the original franchisee, based upon the amount of subscribers held by such franchisees. Additional franchisees shall provide all PEG access channel(s) and an emergency override system currently available to the subscribers of existing franchisees. In order to provide these access channels, additional franchisees may interconnect, at their cost, with existing franchisees, subject to any reasonable terms and conditions that the existing franchisee providing the interconnection may require. These interconnection agreements shall be made directly between the franchisees. Where disputes arise among the parties in establishing such agreements, the City Council may be called upon to arbitrate. Section 40: Inconsistency. If any portion of this Ordinance should be inconsistent or conflict with any rule or regulation now or hereafter adopted by the FCC or other Federal law, then to the extent of the inconsistency or conflict, the rule or regulation of the FCC or other Federal law shall control for so long, but only for so long, as such rule, regulation, or law shall remain in effect; provided the remaining provisions of this Ordinance shall not be effected thereby. Section 41: Severabilitv. Each section, subsection or other portion of this Ordinance shall be severable and the invalidity of any section, subsection, or other portion shall not invalidate the remainder. Section 42: Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five (5) days after passage and publication as provided by law. Page 11 PASSED BY THE CITY CO IL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this /e ATTEST /AUTHENTICATED: e E. Cantu, City Clerk APPROVED AS TO FORM: B 0 cablefran.doc Office of the City Attorney FILED WITH THE CITY CLERK: 40 lc V PASSED BY THE CITY COUNCIL: 7/ PUBLISHED: EFFECTIVE DATE: 30 �15� ORDINANCE NO.: /6? 7 day of 1994. CL Joh W. Rants, Mayor l Page 12 1. Office and Telephone Availability February 14, 1990 APPENDIX A Page 1 of 2 RECOMMENDED CABLE INDUSTRY CUSTOMER SERVICE STANDARDS The cable industry is dedicated to providing our customers with a consistently high level of service. We are committed to ensuring that our customers receive a variety of quality programming; reliable, clear signals; and, prompt, courteous service. To that end, we, have voluntarily adopted the following Standards of Customer Service. Each community and each cable system are different and reasonable flexibility should be employed in applying these standards. Rigidity will hamper rather than help good customer service. We are confident, however, that the cable industry as a whole will implement these voluntary standards by July 1991, and recommend them for overall operational use by that date. A. Knowledgeable, qualified company representatives will be available to respond to customer telephone inquiries Monday through Friday during normal business hours. Additionally, based on community needs, cable systems will staff telephones for supplemental hours on weekdays and /or weekends. B. Under normal operating conditions, telephone answer time by a customer service representative, including wait time, and the time required to transfer the call, shall not exceed 30 seconds. Those systems which utilize automated answering and distributing equipment will limit the number of routine rings to four or fewer. Systems not utilizing automated equipment shall make every effort to answer incoming calls as promptly as the automated systems. This standard shall be met no less than ninety percent of the time measured on an annual basis.* C. Under normal operating conditions, the customer will receive a busy signal less than three percent of the total time that the cable office is open for business. D. Customer service center and bill payment locations will be open for transactions Monday through Friday during normal business hours. Additionally, based on community needs, cable systems will schedule supplemental hours on weekdays and /or weekends during which these centers will be open. In certain smaller cable systems with fewer than 10,000 subscribers, systematic measurement of compliance with some of these standards (e.g. telephone answering time) will not be cost effective and should not be expected. 2. Installation, Outages and Service Calls APPENDIX A Page 2 of 2 Under normal operating conditions, each of the following four standards will be met no less than 95% of the time measured on an annual basis. A. Standard installations will be performed within seven business days after an order has been placed. "Standard" installations are up to 150 feet from the existing distribution system. B. Excluding those situations beyond the control of the cable operator, the cable operator will respond to service interruptions promptly and in no event later than 24 hours. Other service problems will be responded to within 36 hours during the normal work week. C. The appointment window alternatives for installations, service calls, and other installation activities will be (a) morning, (b) afternoon, or (c) all day during normal business hours. Additionally, based on community needs, cable systems will schedule supplemental hours during which appointments can be set. D. If, at any time an installer or technician is running late, an attempt to contact the customer will be made and the appointment rescheduled as necessary, at a time which is convenient for the customer. 3. Communications, Bills and Refunds A. The cable company will provide written information to its customers on each of the following subjects at the time of installation and at any future time upon request: C. Refund checks will be issued promptly, but no later than the earlier of 45 days or the customer's next billing cycle following the resolution of the request, and the return of the equipment supplied by the cable company if service is terminated. products and services offered prices and service options installation and service policies how to use the cable service B. Bills will be clear, concise and understandable. D. Customers will be notified a minimum of 30 days in advance of any rate or channel change, provided the change is with in the control of the cable operator. cablapxa 011/13/94 SUMMARY OF ORDINANCE NO. J. £7 AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, SETTING FORTH THE TERMS AND CONDITIONS FOR THE GRANT OF NON EXCLUSIVE FRANCHISE RIGHTS TO CABLE COMMUNICATIONS SYSTEM OPERATORS WITHIN THE CITY LIMITS OF TUKWILA, AND PROVIDING AN EFFECTIVE DATE. /k /999the City Council of the City of Tukwila passed Ordinance No. 7 (J establishing conditions for the grant of non exclusive franchise rights to communications system operators providing cable services within the City limits, providing for severability, and establishing an effective date. The full text of this ordinance will be mailed without charge to anyone who submits a written request to the City Clerk of the City of Tukwila for a copy of th text. APPROVED by the City Council at its meeting of Published: Seattle Times, 1/25/94_7 2C Cantu, City Clerk