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HomeMy WebLinkAbout2429 OrdinanceORDINANCE NO. 2429 AN ORDINANCE of the City of Pasco, Washington, granting a non-exclusive renewal franchise to Micro- Cable Communications Corporation for the installation, construction, operation, and regulation of a cable television system for Pasco WHEREAS, Micro-Cable Communications Corporation, doing busi- ness in Pasco as Columbia Television Company has provided cuality services at reasonable rates, has kept its promises to the City and to the public, and has complied with the terms and agreements made with the City; and WHEREAS, the City adequately prepared itself to address the question of renegotiation of a successor franchise with Micro-Cable Communications Corporation by the work of a consultant, staff and a Citizens Advisory Committee which took the necessary time to acquaint itself thoroughly with its options, the state of the pres- ent system, the quality of service, the local reputation of Micro- Cable Communications Corporation, the state-of-the-art in cable services technology and the new cable economics, and the new and future needs of the community, and WHEREAS, City staff and the Citizens Committee have recom- mended to the City Council a CATV Plan that includes the adoption of this Franchise Ordinance negotiated between City staff and rep- resentatives of Micro-Cable Communications Corporation with the input and comment of the Citizens Committee, on the basis of the above premises and the following considerations a) Avoidance of a loss of service in the interim between shutting down the existing system and a new system being built; b) Avoidance of unrealistic promises and expectations c) The willingness of Micro-Cable Communications Corpora- tion to agree to provide the City with the upgraded system the Committee sought under the regulatory scheme dece=ined in the public welfare and necessity, at a reasonable rate structure, and WHEREAS, a public hearing was held on January 24, 1983, pur- suant to notice thereof publisned in the Tr-City Herald on January 21, 1983, for citizen comment on the Proposed CATV Plan submitted to the City Council by the Citizens Advisory Committee on Cable Television, which plan consists of tl -is proposed Franchise Ordinance, the proposed CATV Enabling Ordinance, a proposed resolution for establishing the schedule for rates and charges under the proposed Franchise Ordinance and a proposed resolution for establishing rules and regulations and standards of operation under the proposed Franchise Ordinance; and WHEREAS, after consideration of all the above premises and the comment made at the public hearing the City Council considers the proposed CATV Plan and this proposed Franchise Ordinance to be in the public interest and for the public welfare, and the City Council having adopted the proposed CATV Enabling Ordinance on prior motion., NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO ORDAIN AS FOLLOWS Section 1 Short Title This Ordinance shall be known and may be cited as the Pasco Cable Television Franchise Ordinance with Micro-Cable Communications Corporation Section 2. Grant of Franchise. This Ordinance is enacted pur- suant to the authority provided in, and all the provisions, terms and conditions of Ordinance No. 2428, titled Pasco CATV Enabling Ordinance, passed and adopted on January 24 , 1983, a copy of which is on file in the office of the City Clerk The franchise herein granted shall Include the provisions of said ordinance except as specifically stated herein otherwise (as allowed by the CATV Enabling Ordinance); the CATV Plan adopted by Resolution No 1 .561; Resolution No 1562 setting rates and charges, and Resolution No. 1563 establishing rules and regulations and standards of operation, all of which are incorporated herein by reference and made a part thereof. Section 3 Franchise General Terms and Conditions Micro- Cable Communications Corporation, doing business as Columbia Tele- vision Company in Pasco, hereinafter referred to as Grantee, is hereby granted, subject to the requirements of the CATV Enabling Ordinance, a non-exclusive franchise for a period of fifteen (15) years from the date of acceptance of this franchise on the terms and conditions hereinafter set forth. (a) The franchise herein granted shall be subject to all of the terms and conditions of this Ordinance and other documents com- prising the franchise as set forth in Section 2 above In the event of any conflict between the provisions of this Ordinance and the documents comprising the franchise as set forth in Section 2 above, the provisions of this Ordinance shall prevail (b) Grantee shall build, construct, upgrade, reconstruct and operate a cable communications system as necessary to serve the entire City of Pasco in full compliance herewith (c) Grantee shall meet all franchise agreement requirements regardless of whether or not the assumptions upon which Grantee's negotiations and acceptance of this franchise were based prove to be correct. Section 7. Undergrounding of CATV Lines The following requirements are in addition to those set forth in Section 7.3 of the CATV Enabling Ordinance. (a) In new developments or subdivisions the builder, developer, or subdivider shall be responsible for the performance of all neces- sary trenching and the backfilling of main line and service trenches, including furnishing of any imported backfill material required. Amplifiers and other active electronic equipment in the Grantee's transmission and distribution line may be in concrete boxes, vaults or pedestals on the surface of the ground All passives for sub- scriber service taps will be on pedestals unless otherwise directed by the City Engineer. The Grantee will be responsible for the con- duct of the engineering and labor to put the CATV conduit in the trench The Grantee will be responsible for pulling in the cable, and providing the pedestal amplifiers, electronics, stub ends and drops to individual homes (b) Underground cable will be installed pursuant to instruc- tions of the City Engineer in accordance with applicable City codes. Section 8. Emergency Power. Emergency power sources shall be provided by the Grantee as provided in Subsection 10.9(B) of the CATV Enabling Ordinance. "Critical Service Area" means any area of Pasco where one or more subscribers are located receiving system services other than entertainment services, a hotel or motel served by the sys- tem is located', or other areas reasonably designated as such by Grantor Section 9. Line Extension. Grantee shall extend service into and throughout new subdivisions, developments and any areas newly annexed or incorporated into the City at standard installation and service rates in accordance with Section 7 4 of the CATV Enabling Ordinance. Section 10. System Outage and Subscriber Complaint Service In addition to the general requirements of Section 10.10 of the CATV Enabling Ordinance and Section VIII(H) of the CATV Plan (some of which are restated below) the Grantee is subject to the following more specific requirements (a) Grantee will maintain a Subscriber Complaint Service operated from Grantee's office, and qualified technicians will be permanent members of the staff. (b) Routine handling of customer service requests will be the responsibility of the local staff as follows (1) Immediate response and priority correction of any outage affecting a critical circuit as designated by the Grantor. (2) During office hours, a call involving loss of reception on all channels will be dispatched to the field immediately via two-way radio If the loss of reception on all channels affects five (5) or more customers, at any time of day or night, repairs will be commenced immediately and pursued diligently Total loss of recep- tion involving less than five (5) customers will be corrected on the Section 4. Franchise Recision Requirements In addition to the franchise termination provisions of the CATV Enabling Ordinance, the City Council at its sole option and without notice to Grantee, may rescind the franchise award without liability to Grantor, if all the following requirements are not met Grantee shall: (a) File with the City Clerk not later than the twentieth (20th) day from and after the effective date of this Ordinance the Form of Acceptance attached hereto as Exhibit A which when executed accepts the franchise granted herein by the City (b) File with the City Clerk not later than the twentieth (20th) day from the effective date of this Ordinance the bond re- quired in Section (b) of this Ordinance and the insurance policies required by the CATV Enabling Ordinance, or binders therefore if such policies are not yet available. (c) File with the City Clerk within thirty (30) days of the effective dare of this Ordinance the security deposit required in Section 14(a) herein (d) File with the City Clerk within twenty (20) days of the effective date of this Ordinance an agreement to Day the City with- in thirty (30) days of receipt of billings, the costs realized by the City in the refranchising process leading to the granting of this franchise. Copies of the cost estimates and actual billings have been submitted to Grantee by the City Manager. (e) File with the City Manager within sixty (60) days of the effective date of this Ordinance a preliminary system build, re- build and development plan Such plan will be subject to review by the City Engineer. If comments from the City are not received by Grantee within thirty (30) days, the plan shall be deemed approved as submitted. The plan shall Include but shall not be limited to a preliminary engineering study or plan, as appropriate, for the nature of the rebuild and system expansion. Section 5. Permits, Licenses and Authorizations. Immediately upon acceptance of the franchise, Grantee shall proceed with due diligence to obtain all necessary permits, licenses and authoriza- tion per Section 7 1 of the CATV Enabling Ordinance Section 6 Construction Schedule. (a) In addition to the provisions of Subsection 7 1(A) and Subsections 7.2(A) and (B) of the CATV Enabling Ordinance, the Grantee shall have fully completed, activated and in service to subscribers the build and/or rebuild of the system and the upgrade of all facilities by no later than July 1, 1984, in accordance with the provisions of the construction schedule at pages 16 and 17 of the CATV Plan (Subsection VII(B)). (b) Grantee shall provide timely notification to all residents of impending construction in a particular area by direct mail, door- hangers, or other effective means. same day received except if reported after 2-00 p m.; in which case, correction may be postponed to the following day. The majority of all outages (total loss or reception on all channels) will be cor- rected in four (4) to eight (8) hours or less. (3) The majority of calls involving degraded reception or single channel outage will be handled on the same business day if received prior to 2-00 p m. In all cases such service calls will be handled no later than the following business day. (4) Requests for repairs made after hours or on weekends shall be answered by an answering service or staff. Outage calls will be referred immediately to the standby technician for resolution in accordance with Subparagraph (1) above Calls involving degraded service will be reported by the answering service the next day. The staff will call the customer to schedule a service call in accordance with Paragraph (3) above. (5) When required by the City, customers will be notified of the complaint procedure by inclusion of the following text on the Customer Work Order which is left with the customer: "Requests for repairs should be made to (name of responsible employee(s)) by calling the local office at any time. Response will be made immediately or on the following day, de- pending on the severity of the complaint and other circumstances "Subscribers who have so requested repairs but are dissatisfied with services rendered are requested to lodge a written complaint to the system office " (c) Grantee will maintain a data base, or "log," listing date of consumer complaint, identifying the subscriber and describing the nature of the complaint, and when and what action was taken by the Grantee in response thereto. From the date when the system is first energized said record shall be kept accessible at the Grantee's local office for a period of three (3) years, and shall be available for inspection during regular business hours, without further notice or demand by the City Manager or any other duly authorized representative of the City. (d) The Grantee will not be responsible for problems created by subscribers or for problems with subscriber-owned equipment. The subscriber must allow the service technicians access to the problem if located on the subscriber's property, or forfeit any refund due for service outage. Section 11 Local Origination and Access. (a) The Grantee shall as a minimum provide and maintain on a permanent basis a Local Origination van with studio. (b) The Grantee shall provide, install, maintain and replace as necessary on a permanent basis equipment for Video Production in the Local Origination van as outlined in the City's CATV Plan. (c) The City reserves the right to form a board, commission, committee, or other agency for the purpose, inter alia, of promot- ing and administering all Community Access channels except as pre- empted by the City Council, state or federal authorities Subject to the approval of the City, the Grantee shall enter into an agree- ment or contract with the so designated agency for support of that agency's responsibilities as addressed in Section 4 herein. The designated agency may be formed as a non-profit corporation The designated agency may be required to provide administrative services to the community, including the management and expenditure of funds Section 12. Emergency Alert - Audio/Video Override The Grantee shall design and construct the CATV system to Provide for a restricted audio and video simultaneous override of all audio and video channels during emergencies, as specified in the CATV Plan, with override to be placed under City control The functional design and procedure for implementation of the Emergency Alert sys- tem is to be submitted to the City Engineer for approval prior to construction. See Subsection III(C) of CATV Plan Section 13. Franchise Fee/Occupational License Tax (a) In consideration of the granting of this non-exclusive franchise, the Grantee shall pay to the City during the life of the franchise, either, as directed by the City. (1) An annual franchise fee of that certain percent of the Grantee's "gross revenues" (defined by Subsection 2.17 of the CATV Enabling Ordinance) approved by the Council and designated by City Ordinance from time to time, but no greater than the maximum franchise fee allowed by federal law, as it shall be from time to time during the life of this franchise, or (2) A non-discriminatory occupational license tax on any activity conducted by the Grantee, as currently required by Ch. 5.32 PMC (b) Grantee shall continue to pay the occupational license tax (see Section 5 32.040(4) PMC) established by the City unless and until notified by the City in writing to pay the franchise fee (c) The annual franchise fee if required by the City shall be paid in quarterly installments to the City Treasurer each fiscal quarter based on the actual gross revenues of the prior quarter All such payments shall be due and paid m_thin fifteen (15) days of the end of the subject quarter (d) Upon two working days' notice, the Grantor shall nave the right to inspect all books, records, maps, plans, financial statements, plant, installations, facilities, and other like material of the Grantee at any time during normal business hours and at Grantee's facilities Such inspections shall be at the City's expense Section 14. Security Fund and Faithful Performance Bond. The provisions of Sections 12 4 and 12 5 of the CATV Enabling Ordinance are applicable to this franchise in all respects, except as modified below; due to Grantee's past history and performance: (a) Security Fund (1) Within thirty (30) days after the effective date of this Ordinance, the Grantee shall deposit into a bank account or Certificate of Deposit established by the Grantor, or provide a bank letter of credit at a banking institution acceptable to Grantor, maintaining or guaranteeing the sum of Twenty-five Thousand Dollars ($25,000) as security for the faithful performance by it of all pro- visions of this franchise, and compliance with all orders, permits and directions of any agency of the Grantor having jurisdiction over its acts or defaults under this contract and the payment by the Grantee of any penalties, claims, liens, and taxes due the Grantor which arise by reason of the construction, operation or maintenance of the system This security will be maintained throughout the term of the franchise construction as a security of aforesaid faithful performance on the part of Grantee. Upon timely completion of all construction provided for in Section 6(a) of this Ordinance, the requirements of this section and of Section 12 5 of the CATV Enab- ling Ordinance shall be respectively eliminated and waived due to Grantee's prior performance record, and the appropriate securities shall be returned to Grantee This record is personal and not transferable (2) The Grantee shall be entitled to all interest if any is earned on such account and such shall be subject to any interest penalty for early withdrawal, if such is incurred, on account of Grantor's withdrawal of funds (3) Any dispute between Grantor and Grantee concerning the withdrawal of funds from the security by Grantor may be sub- mitted to arbitration by the Grantee. Each party shall select one arbitrator and the two arbitrators so selected shall select a third, the decision of a majority of the arbitrators shall be final. (b) Faithful Performance Bond: At the time of filing the acceptance of this franchise, the Grantee shall furnish to the City Clerk a faithful performance bond running to the City, with good and sufficient surety approved by the Grantor, in the penalr sum of Three Hundred Thousand Dollars ($300,000) conditioned that the Grantee shall well and truly observe, fulfill, and perform each term and condition of the franchise The bond will be both a labor and materials payment bond whereunder the surety promises to pay for the labor and material if the principal fails to do so, and a performance bond under which the surety agrees that the principal will perform all of the franchise terms, not merely for performance of the work of the franchise Such bond shall be maintained by the Grantee throughout the term of this franchise, and any renewal thereof, plus an additional six (6) months thereafter. Upon timely completion of all construction provided for in Section 6(a) of this Ordinance, the amount of the original bond may be reduced by the Grantee to One Hundred Thousand Dollars ($100,000) due to its past Performance record This provision for bond reduction is personal and not transferable. Section 15 Provisions Relating to Merger of Grantee. In addition to the change of ownership provisions set forth in Section 5.4 of City CATV Enabling Ordinance, Grantor reserves the right to review any proposed merger of Grantee with any company, corporation or other profit or non-profit enterprise, and should the merger not meet with the City Council's approval, the City reserves the right to renegotiate or terminate the franchise Such termination shall, however, be made, if at all, not later than sixty (60) days after receipt of a copy of the merger agreement Further, the termination procedure shall be conducted as set forth in Section 3.4 of City CATV Enabling Ordinance Section 16. Severability If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held illegal, invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the re- maining portions hereof. The Council hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause and phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid or unconstitutional. The invalidity of any portion of this Ordinance shall not abate, reduce or otherwise affect any consideration or other obligation required of the Grantee by the franchise granted hereunder Section 17. Notices Every direction, notice or order to be served upon the Grantee shall be sent to the local office described in Section 1, of Resolution No. 1563, establishing rules and regula- tions and standards of operations. Every notice to be served upon the City shall be delivered, or sent by certified mail to the City Manager at. City Hall, 412 West Clark Street, Pasco, Washington 99301 The delivery of such notice shall be deemed to have been at the time of receipt Section 18. Effective Date This Ordinance shall become effective thirty (30) days from and after its adoption; provided, however, that the franchise granted by this Ordinance shall not become effective unless and until Grantee files written acceptance thereof and an agreement to be bound by and comply with all of the requirements tnereof within twenty (20) days of the effective date of this Ordinance. PASSED AND ADOPTED by the City Council and approved by the Mayor, this 7 day of February , 1983, by the following vote n Wel4s, City Clerk AQ0( A Greg A Rubstello, City Attorney AYES. ( 7) NAYES. (°) ABSENT: (0) - 1 , 7-7 , i - , A. Snrder, Mayor ATTEST APPROVED AS TO FORM. ABSTAIN (0) By: Or Title. Senior Vice President EXHIBIT "A" ACCEPTANCE OF CABLE TELEVISION FRANCHISE Micro-Cable Communications Corporation (hereinafter "Grantee"), hereby accepts the non-exclusive Cable Television Franchise granted by the City of Pasco (hereinafter "Grantor"). Grantee agrees to comply with all of the terms and conditions of Ordinance No. 2429 and the documents comprising the franchise as said documents are set forth in Section 2 of said Ordinance No. 2429. Grantee further agrees to the payment of liquidated damages, as set forth in Section VII B of the CATV Plan, to Grantor in the event of Grantee's failure to fulfill its obligations as set forth in said Ordinance and other documents comprising this franchise. Cable Television Franchise accepted this 14th day of February , 1983. Micro-Cable Communications Corp. FEB 2 J r