Chapter 5.24
FALCON CABLE TV FRANCHISE
Sections:
5.24.010 Short title.
5.24.020 Definitions and explanation.
5.24.030 Grant of authority.
5.24.040 Nonexclusive grant.
5.24.050 Company liability – Indemnification.
5.24.060 Company rules.
5.24.070 Conditions on street occupancy and public places.
5.24.080 Preferential or discriminatory practices prohibited.
5.24.090 Approval of transfer.
5.24.100 City rights in franchise.
5.24.110 Termination of franchise for cause.
5.24.120 Rights and obligation after expiration or termination of franchise.
5.24.150 Insurance and indemnification.
5.24.160 Term of franchise.
5.24.170 Publication before passage.
5.24.010 Short title.
The ordinance codified in this chapter shall be known and may be cited as the “Falcon Cable TV Franchise Ordinance.” (Ord. 1109 NS § 1, 1995).
5.24.020 Definitions and explanation.
A. As used in this chapter:
1. “City” means the city of Colville, Washington.
2. “Council” means the legislative body of the city.
3. “Company” means the grantee of rights under this franchise.
4. “Grantee” means the company referred to in CMC 5.24.030.
5. “Person” means individual, firm, partnership, association, corporation, company or organization of any kind.
6. “Public place” means any city-owned park, place or grounds within the city that is open to the public but does not include a street.
7. “Street” means a street, alley, avenue, road, boulevard, thoroughfare or public highway within the city.
B. As used in this chapter, the singular number may include the plural and the plural number may include the singular.
C. As used in this chapter, the word “shall” is always mandatory and not merely directory.
D. Unless otherwise specified in this chapter, any action authorized or required to be taken by the city may be taken by the council or by an official or agent designated by the council. (Ord. 1109 NS § 2, 1995).
5.24.030 Grant of authority.
There is granted to the Falcon Telecable, a California limited partnership, its successors and assigns, the franchise, right and privilege to provide a telecommunications system, and to place, erect, lay, maintain and operate in, upon and under the streets and public places within the city, poles, wires and other appliances and conductors for such telecommunications system. All wires and other appliances and conductors may be strung upon poles or other fixtures aboveground, or, at the option of the company, may be laid underground in pipes or conduits or otherwise protected, and such other apparatus may be used as may be necessary or proper to operate and maintain the same. When it is practicable the company shall make use of poles in conformity with the terms of its agreement with Washington Water Power Company and the US West Telephone Company.
There is also granted by the city to the company, its successors and assigns, the right to maintain existing television receiving antennas, a microwave building and appurtenances on Buena Vista Road. The company further agrees to maintain an office within the city limits for the duration of this franchise. (Ord. 1109 NS § 3, 1995).
5.24.040 Nonexclusive grant.
The right to use and occupy said streets and public places for the purposes herein set forth shall not be exclusive and shall not be construed as limitation on the city in granting rights, privileges and authority to other persons, similar to or different from those granted by this chapter. (Ord. 1109 NS § 4, 1995).
5.24.050 Company liability – Indemnification.
It is expressly understood and agreed by and between the company and the city that the company shall indemnify, protect and save the city, its officers, employees and agents harmless against any claim for injury or damage, and all loss, liability, attorney fees, cost or expenses sustained by the city on account of any suit, judgment, execution, claim or demand whatsoever resulting from negligence on the part of the company in the construction, operation or maintenance of its telecommunications system in the city. The city shall notify the company’s representative in the city within a reasonable time, but not later than 30 days after the presentation, of any claim or demand either by suit or otherwise made against the city on the account of any negligence as aforesaid on the part of the company. (Ord. 1109 NS § 5, 1995).
5.24.060 Company rules.
The company shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonable and necessary to enable the company to exercise its rights and perform its obligations under this franchise and to assure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions of this chapter or the rules of the Federal Communications Commission, or the laws of the state of Washington, or ordinance of the city of Colville. (Ord. 1109 NS § 6, 1995).
5.24.070 Conditions on street occupancy and public places.
A. Public Places and Streets. Before the company may use or occupy any public place or streets, the company shall first obtain permission from the city so to do and shall comply with any special conditions the city desires to impose on such use or occupation.
B. Use. All poles, wires and other appliances and conductors and equipment erected by the company within the city shall be so located as to cause minimum interference with the proper use of streets and public places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of said streets or public places.
C. Restoration. In case of any disturbance of pavement, sidewalk, driveway, or other surfacing, the company shall, at its own cost and expense, and in a manner approved by the city engineer, replace and restore all paving, sidewalk, driveway or surface of any street or public place disturbed, in as good condition as before said work was commenced.
D. Relocation. In the event that at any time in the period of this franchise, the city shall lawfully elect to alter or change the grade of any street, the company, upon reasonable notice by the city, shall remove, relay and relocate its poles, wires, and other appliances and conductors at its own expense.
E. Placement of Fixtures. The company shall not place poles or other fixtures where the same will interfere with any lighting fixture, telephone wire or conduit, water hydrant or water main, and all such poles or other fixtures shall be placed at the outer edge of the sidewalk and inside the curbline and those placed in alleys shall be placed close to the line of the lot abutting on said alley, and then in such a manner as not to interfere with the usual travel on said streets and alleys.
F. Temporary Removal of Wire for Building Moving. The company 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 wire shall be paid by the person requesting the same, and the company shall have the authority to require such payment in advance. The company shall be given not less than seven days’ advance notice, in writing, to arrange for such temporary wire changes. The notice shall bear the approval of such official as the council shall designate.
G. Tree Trimming. The company shall have the authority to trim trees on and overhanging streets and public places of the city so as to prevent the branches of said trees from coming in contact with the wires and cables of the company. All trimming shall be done under the supervision and direction of the city and at the expense of the company. The intent of the city is to maintain the aesthetics of the city. (Ord. 1109 NS § 7, 1995).
5.24.080 Preferential or discriminatory practices prohibited.
The company shall not, as to rates, charges, service facilities, rules, regulations, or in any other respect, make or grant any preference or advantage to any person, nor subject any person to any prejudice or disadvantage; provided, that nothing in this franchise shall be deemed to prohibit the establishment of a graduated scale of charges and classified rates schedules to which any customer coming within such classification would be entitled. (Ord. 1109 NS § 8, 1995).
5.24.090 Approval of transfer.
The company shall not sell or transfer its plant or system either in whole or in part to another or transfer or assign any rights under this franchise to another unless the council first consents by resolution. No sale, transfer, lease or assignment shall be effective until the vendee, assignee or lessee has filed in the office of the city auditor an instrument, duly executed, reciting the fact of such sale, assignment or lease, accepting the terms of the franchise and agreeing to perform all the conditions thereof. (Ord. 1109 NS § 9, 1995).
5.24.100 City rights in franchise.
A. City Rules. The right is reserved to the city to adopt, in addition to the provisions herein contained and existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of eminent domain; provided, that such regulations by ordinance or otherwise shall be reasonable, and not in conflict with the rights herein granted and shall not be in conflict with laws of the state of Washington or rules of the Federal Communications Commission.
B. Supervision and Inspection. The city shall have the right to supervise all construction, installation or connection work performed subject to the provisions of this chapter and to make such inspections as it shall find necessary to insure compliance with governing ordinances.
C. Procedure after Termination or Revocation. Upon revocation of this franchise by the council, or at the end of the term of this franchise, the city shall have the right to determine whether the company shall continue to operate and maintain its telecommunications system. (Ord. 1109 NS § 10, 1995).
5.24.110 Termination of franchise for cause.
A. Upon the willful failure of the company, after 30 days’ notice and demand in writing, to perform promptly and completely each and every term, condition or obligation imposed upon it under or pursuant to this chapter, the council may, at its option and in its sole discretion, by ordinance or resolution, terminate this franchise.
B. Prior to issuing a notice of intent to terminate the franchise, the city shall hold a public hearing providing due process at which testimony and evidence shall be heard concerning the alleged violation. Representatives of the city and the company shall be permitted to address the subject of the alleged violation(s) and related issues at the public hearing. The company may submit evidence to the city that it is diligently pursuing reasonable actions to cure the alleged violation or that there are circumstances beyond its control (force majeure) which prevent the company from curing the alleged breach until some future date. Such showings shall be sufficient to relieve the company from an alleged breach of this chapter or its franchise. In such cases the city may require the company to provide periodic reports updating the city on progress being made to cure any unresolved problem. (Ord. 1109 NS § 11, 1995).
5.24.120 Rights and obligation after expiration or termination of franchise.
A. Upon expiration of franchise, the company shall be given consideration by the council for a new franchise providing the company has performed under the conditions or obligations imposed upon it under this chapter.
B. Upon termination under provisions of CMC 5.24.110, or if the company does not apply for or is not granted a new franchise:
1. The company shall be given a first option to sell or transfer its plant or system to another as provided under CMC 5.24.090.
2. If the company’s option under subsection (B)(1) of this section is not exercised, the city may:
a. By written notice, in order to allow sufficient time to arrange for an adequate service, require the company to renew this franchise for a period of one year or until other arrangements have been made, whichever period is shorter. Such period shall commence from the date of expiration or termination of this franchise. However, the company may cease to render service when this franchise expires if the company gives the city written notice of such intention at least two years prior to the expiration of this franchise. The written notice to continue services must be given by the city not more than 30 days after the date this franchise expires or on or before the date this franchise is terminated, as the case may be, if the city requires the company to extend its line, plant or system into, and render service to, a locality not already served on the date this franchise is terminated or expires;
b. Require the company within one year or such further time as may be allowed by the council to remove from the streets and public places all of its property and equipment and forthwith shall replace and restore the streets and public places to their former condition. If the company removes its property and equipment but fails to replace and restore the streets and public places to their former condition, the city may do so at the expense of the company. If the company fails to remove all its property and equipment within the required time the city may remove the property and equipment and replace and restore the streets and public places to their former condition, all at the expense of the company. (Ord. 1109 NS § 12, 1995).
5.24.150 Insurance and indemnification.
Within 90 days following the grant of a franchise the grantee shall obtain, pay all premiums for and make available to the city at its request copies of the following insurance policies:
A. A general comprehensive liability policy indemnifying, defending and saving harmless the city, its officers, boards, commissions, agents or employees from any and all claims by any person whatsoever on account of injury to or death of a person or persons occasioned by the operations of the grantee under the franchise herein granted, or alleged to have been so caused or occurred, with a minimum liability of $1,000,000 per personal injury or death of any one person, and $2,000,000 for personal injury or death of any two or more persons in any one occurrence.
B. Property damage insurance for property damage occasioned by the operation of grantee under the franchise herein granted, or alleged to have been so caused or occurred, with a minimum liability of $1,000,000 for property damage to any one person and $2,000,000 for property damage to the property of two or more persons in any one occurrence.
C. All insurance policies called for herein shall be in a form satisfactory to the city and shall require 30 days’ written notice of any cancellation to both the city and the grantee. The grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for, and file with the city, written evidence of the issuance of replacement policies within 30 days following receipt by the city or the grantee of any notice of cancellation.
The grantee, by its acceptance of a franchise granted pursuant to this chapter, shall indemnify and hold harmless the city, its officials, boards, commissions and employees against any and all claims, suits, causes of action, proceedings and judgements for damage arising out of the award of a franchise to the grantee and its operation of the cable television system under the franchise. These damages shall include, but not be limited to, penalties arising out of copyright infringements and damages arising out of failure by grantee to secure consent from the owners, authorized distributors or licensees of programs to be delivered by the grantee’s cable television system whether or not any act or omission complained of is authorized, allowed or prohibited by the franchise. (Ord. 1109 NS § 15, 1995).
5.24.160 Term of franchise.
The rights, privileges and franchise herein granted shall continue and be in force for the period of 20 years from and after the date the ordinance codified in this chapter becomes effective. In addition, the ordinance codified in this chapter will be reviewed every five years for the purpose of franchise fee schedule and other appropriate additions and deletions as dictated by advancing technology. The city shall have access at all reasonable hours to all the company’s accounting, financial, statistical, customer and service records relating to the records required to be kept hereunder. The records and reports shall be filed with the city and in the local office of the company. (Ord. 1109 NS § 16, 1995).
5.24.170 Publication before passage.
No ordinance granting a franchise or privilege and no ordinance amending a prior ordinance granting a franchise or privilege shall be passed until it has been published in at least one issue of the official newspaper of the city.
All publications of ordinances granting a franchise or ordinance amending ordinances granting a franchise, both before and after passage, shall be made at the expense of the applicant or proposed grantee. (RCW 35.23.400.)
It is further agreed that the following buildings will receive minimum basic cable services, without charge; other channels may be provided at the company’s discretion:
A. City Hall;
B. Library;
C. Fire hall;
D. Ambulance building;
E. Museum;
F. Community center;
G. Convention center. (Ord. 1109 NS § 17, 1995).