Title 3
REVENUE AND FINANCE

Chapters:

3.04 Admissions Tax

3.08 Sales and Use Tax

3.10 Additional Sales and Use Tax

3.12 Utilities Occupation Tax

3.14 Real Estate Excise Tax

3.16 Additional Real Estate Excise Tax

3.20 Local Improvement District Assessments

3.24 Fees and Charges for Services

3.28 Leasehold Excise Tax

3.40 Franchise Regulations – Cable TV

Chapter 3.04
ADMISSIONS TAX
(Reserved)

Chapter 3.08
SALES AND USE TAX

Sections:

3.08.010 Imposition.

3.08.020 Rate.

3.08.030 Administration and collection.

3.08.040 Inspection of records.

3.08.050 Failure or refusal to collect tax.

3.08.060 Effective date.

3.08.010 Imposition.

There is imposed a sales or use tax, as the case may be, upon every taxable event, as defined in RCW 82.14.020, occurring within the city. The tax shall be imposed upon and collected from those persons from whom the state sales or use tax is collected pursuant to Chapters 82.08 and 82.12 RCW. (1958 Code § 3.50.010).

3.08.020 Rate.

The rate of the tax imposed by EMC 3.08.010 is one-half of one percent of the selling price or value of the article used, as the case may be; provided, however, that during such period as there is in effect a sales or use tax imposed by King County, the rate of tax imposed by this chapter is four hundred twenty-five one-thousandths of one percent. (1958 Code § 3.50.020).

3.08.030 Administration and collection.

The administration and collection of the tax imposed by this chapter is in accordance with the provisions of RCW 82.14.050. (1958 Code § 3.50.030).

3.08.040 Inspection of records.

The city consents to the inspection of such records as are necessary to qualify the city for inspection of records by the Department of Revenue, pursuant to RCW 82.32.330. The mayor is authorized to enter into the contract required with the Department of Revenue for administration of the tax herein. (1958 Code § 3.50.040).

3.08.050 Failure or refusal to collect tax.

Any seller who fails or refuses to collect the tax as required with the intent to violate the provisions of this chapter or to gain some advantage or benefit, either direct or indirect, and any buyer who refuses to pay any tax due under this chapter is guilty of a misdemeanor and is punishable as provided in Chapter 1.08 EMC. (Ord. 1079 § 2, 1973; 1958 Code § 3.50.050).

3.08.060 Effective date.

The tax imposed in EMC 3.08.010 takes effect April 1, 1970. (1958 Code § 3.50.060).

Chapter 3.10
ADDITIONAL SALES AND USE TAX

Sections:

3.10.010 Imposition.

3.10.020 Rate.

3.10.030 Administration and collection.

3.10.040 Inspection of records.

3.10.050 Authorized to contract for administration.

3.10.060 Chapter provisions subject to special initiative.

3.10.070 Violation – Penalties.

3.10.010 Imposition.

There is hereby imposed a sales or use tax, as the case may be, as authorized by RCW 82.14.030(2), upon every taxable event, as defined in RCW 82.14.020, occurring within the city of Enumclaw. The tax shall be imposed upon and collected from those persons from whom the state sales tax or use tax is collected pursuant to Chapters 82.08 and 82.12 EMC. (Ord. 1375 § 1, 1982).

3.10.020 Rate.

The rate of the tax imposed by EMC 3.10.010 shall be one-half of one percent of the selling price or value of the article used, as the case may be; provided however, that during such period as there is in effect a sales tax or use tax imposed by King County under Section 17(2), Chapter 49, Laws of 1982, First Extraordinary Session at a rate equal to or greater than the rate imposed by this section, the county shall receive 15 percent of the tax imposed by EMC 3.10.010; provided further, that during such period as there is in effect a sales tax or use tax imposed by King County under Section 17(2), Chapter 49, Laws of 1982, First Extraordinary Session at a rate which is less than the rate imposed by this section, the county shall receive from the tax imposed by EMC 3.10.010 that amount of revenues equal to 15 percent of the rate of the tax imposed by the county under Section 17(2), Chapter 49, Laws of 1982, First Extraordinary Session. (Ord. 1375 § 2, 1982).

3.10.030 Administration and collection.

The administration and collection of the tax imposed by this chapter shall be in accordance with the provisions of RCW 82.14.050. (Ord. 1375 § 3, 1982).

3.10.040 Inspection of records.

The city hereby consents to the inspection of such records as are necessary to qualify the city for inspection of records of the Department of Revenue, pursuant to RCW 82.32.330. (Ord. 1375 § 4, 1982).

3.10.050 Authorized to contract for administration.

The mayor and clerk are hereby authorized to enter into a contract with the Department of Revenue for the administration of this tax. (Ord. 1375 § 5, 1982).

3.10.060 Chapter provisions subject to special initiative.

The ordinance codified in this chapter shall be subject to a special initiative proposing that the tax imposed by such ordinance be changed or repealed. The number of registered voters needed to sign a petition for special initiative shall be 15 percent of the total number of names of persons listed as registered voters within the city on the day of the last preceding general election. If a special initiative petition is filed with the city council, the operation of the ordinance codified herein shall not be suspended pending the city council or voter approval of the special initiative, and the tax imposed herein shall be collected until each special initiative is approved by the city council or the voters. The procedures for initiative upon petition contained in RCW 35A.11.100 shall apply to any such special initiative petition. (Ord. 1394 § 1, 1982; Ord. 1375 § 6, 1982).

3.10.070 Violation – Penalties.

Any seller who fails or refuses to collect the tax as required, with the intent to violate the provisions of this chapter or to gain some advantage or benefit, either direct or indirect, and any buyer who refuses to pay any tax due under this chapter shall be guilty of a misdemeanor, and upon conviction thereof shall be fined no more than $500.00 or imprisoned for not more than six months, or by both such fine and imprisonment. (Ord. 1375 § 7, 1982).

Chapter 3.12
UTILITIES OCCUPATION TAX¹

Sections:

3.12.010 Definitions.

3.12.020 License – Required.

3.12.030 Tax – Imposed.

3.12.040 Tax – Payment schedule.

3.12.050 Tax – Deductions and exemptions.

3.12.060 Allocation of income – Cellular telephone service.

3.12.070 Authority of administrator.

3.12.080 Rate change.

3.12.090 Records required.

3.12.100 Tax – Late penalty.

3.12.110 Credit and refund.

3.12.120 Annexation notification.

3.12.130 Regulation promulgation.

3.12.010 Definitions.

A. “Telephone business” means the business of providing access to a local telephone network, local telephone network switching service, toll service, cellular telephone service, or coin telephone services, or providing telephonic, video, data, or similar communication or transmission for hire, via a local telephone network, toll line or channel, or similar communication or transmission system. It includes cooperative or farmer line telephone companies or associations operating an exchange as well as cellular telephone service. “Telephone business” does not include the providing of competitive telephone service, nor the providing of one-way cable television or one-way satellite-based television service; provided, however, that if the television provider provides service, or provides access to service, which allows the subscriber to communicate with another party through the medium which transports the television signal, the television service shall become subject to the tax described herein. Furthermore, providing access to the internet, any computer bulletin board service, or any similar service through any medium whatsoever shall be considered two-way communication, and any person, firm, corporation or other entity providing access to such service(s) shall be considered a “telephone business”.

B. “Cellular telephone service” is a two-way voice and data telephone/telecommunications system based in whole or substantially in part on wireless radio communications and which is not subject to regulation by the Washington Utilities and Transportation Commission (WUTC). This includes cellular mobile service. The definition of cellular mobile service includes other wireless radio communications services such as specialized mobile radio (SMR), personal communications services (PCS), and any other evolving wireless radio communications technology which accomplishes a purpose similar to cellular mobile service.

C. “Competitive telephone service” means the providing by any person of telecommunications equipment, apparatus, or service related to that equipment or apparatus, such as repair or maintenance services, if the equipment or apparatus is of a type which can be provided by persons that are not subject to regulation as telephone companies under RCW Title 80, and for which a separate charge is made. Transmission of communication through cellular telephones is classified as “telephone business” rather than “competitive telephone service.”

D. “Gross revenues” means the value proceeding or accruing from the performance of the particular service or business involved, including operations incidental thereto, but without any dedication on account of the cost of the commodity furnished or sold, the cost of materials used, labor costs, interest, discount, delivery costs, taxes, or any other expense whatsoever paid or accrued and without any deduction on account of losses. The above definition is taken from RCW 82.16.010. (Ord. 1914 § 1, 1996).

3.12.020 License – Required.

No person, firm or corporation shall engage in or carry on any business, occupation, act or privilege for which a tax is imposed under this chapter without first having obtained, and being the holder of, a license so to do, to be known as a business license as may be required by city ordinance. Each such person, firm or corporation shall promptly apply to the Enumclaw city clerk for such license upon such forms as the clerk shall prescribe, giving such information as the clerk shall deem reasonably necessary to enable the clerk’s office to administer and enforce this chapter, and, upon acceptance of such application by the clerk, the clerk shall thereupon issue such license to the applicant. Such business license shall be personal and nontransferable and shall be valid as long as the licensee shall continue in the business and shall comply with this chapter. (Ord. 1914 § 2, 1996).

3.12.030 Tax – Imposed.

There is levied upon, and there shall be collected from, every person, firm, corporation, or other entity engaged in carrying on the following business for hire or for sale of a commodity or a service within or partly within the corporate limits of the city, a tax for the privilege of so doing business as defined in this chapter.

A. Upon any telephone business there shall be levied a tax equal to six percent of the total gross revenues; provided, however, that there shall be no fee or tax on that portion of network telephone service, as defined in RCW 82.04.065, which represents the following:

1. Charges to another telecommunications company (as defined in RCW 80.04.010) for connecting fees; or

2. Charges to another telecommunications company for switching charges; or

3. Charges to another telecommunications company for carrier access charges relating to intrastate toll telephone services; or

4. Charges for access to, or charges for, interstate services; or

5. Charges for network telephone service that is purchased for the purpose of resale.

B. There is levied a tax on the sale, delivery or distribution of electricity and electrical energy and for the privilege of carrying on said business, such tax to be equal to six percent of the total gross revenue derived from sales of such electricity to ultimate users within the city; provided, however, that there shall not be any tax levied for the installation charges of electrical units. (Ord. 1925 § 2, 1997; Ord. 1914 § 3, 1996).

3.12.040 Tax – Payment schedule.

The tax imposed by this chapter shall be due and payable in quarterly installments and remittance shall be made on or before the thirtieth day of the month next succeeding the end of the quarterly period in which the tax accrued. Such quarterly periods are as follows:

First quarter: January, February, March;

Second quarter: April, May, June;

Third quarter: July, August, September;

Fourth quarter: October, November, December.

On or before the due date the taxpayer shall file with the city’s finance director a written return, upon such form and setting forth such information as the finance director shall reasonably require, together with the payment of the amount of the tax. (Ord. 1914 § 4, 1996).

3.12.050 Tax – Deductions and exemptions.

A. In computing the tax there shall be deducted from the gross revenues the following items:

1. The amount of credit losses and uncollectibles actually sustained by the taxpayer;

2. Amounts derived from transactions in interstate or foreign commerce or from any business which the city is prohibited from taxing under the Constitutions of the United States or the state of Washington.

B. If the total tax due during any quarter as computed under this chapter is less than $5.00, the taxpayer may request permission from the finance director to pay the taxes imposed by this chapter on a semiannual or annual basis. Any such request must be in writing, and unless the request is approved, the taxpayer shall be responsible for paying the tax according to the standard schedule set forth herein. If the finance director grants permission to the taxpayer to pay taxes under this chapter semiannually or annually, the taxpayer may proceed to pay taxes on the semiannual or annual basis until the amount due during any quarter as computed under this chapter exceeds $5.00, at which time the taxpayer must pay the taxes in question on a quarterly basis. (Ord. 1914 § 5, 1996).

3.12.060 Allocation of income – Cellular telephone service.

A. Service Address. Payments by a customer for the telephone service from telephones without a fixed location shall be allocated among taxing jurisdictions to the location of the customer’s principal service address during the period for which the tax applies.

B. Presumption. There is a presumption that the service address a customer supplies to the taxpayer is current and accurate, unless the taxpayer has actual knowledge to the contrary.

C. Roaming Phones. When the service is provided while a subscriber is roaming outside the subscriber’s normal cellular network area, the gross income shall be assigned consistent with the taxpayer’s accounting system to the location of the originating cell site of the call, or to the location of the main cellular switching office that switched the call.

D. Dispute Resolution. If there is a dispute between or among the city and another city or cities as to the service address of the customer who is receiving cellular telephone service and the dispute is not resolved by negotiation among the parties, then the dispute shall be submitted to the King County superior court for resolution. Once the taxes on the disputed revenues have been paid by one of the contesting cities, the cellular phone service shall have no further liability with respect to additional taxes, penalties, or interest on the disputed revenues so long as it promptly changes its billing records for future revenues to comport with the agreement between the cities affected or order of the court. (Ord. 2012 § 1, 1999; Ord. 1914 § 6, 1996).

3.12.070 Authority of administrator.

The finance director is authorized to represent the city in negotiations with other cities for the proper allocation of taxes due under this chapter. (Ord. 1914 § 7, 1996).

3.12.080 Rate change.

No change in the rate of tax upon persons engaging in providing cellular telephone service shall apply to business activities occurring before the effective date of the change and, except for a change in the tax rate authorized by RCW 35.21.870, no change in the rate of the tax may take effect sooner than 60 days following the enactment of the ordinance establishing the change. The finance director shall send to each cellular telephone service company, at the address on its license or prior tax return, as applicable, a copy of any ordinance changing the rate of tax upon cellular telephone service promptly upon its enactment; provided, however, that each telephone business shall be responsible for keeping abreast of any such ordinance change, and shall be responsible for paying taxes according to the rates imposed by any subsequent ordinance, regardless of whether the telephone business receives a copy of said ordinance. (Ord. 1914 § 8, 1996).

3.12.090 Records required.

Each taxpayer shall keep records reflecting the amount of his or her gross revenues, and such records shall be open at all reasonable times to the inspection of the city finance director, or his or her duly authorized subordinates, agents, representatives or other individual or organization hired by the city to audit the taxpayer’s accounts, for verification of the tax returns or for the fixing of the tax of a taxpayer who shall fail to make such returns. (Ord. 1914 § 9, 1996).

3.12.100 Tax – Late penalty.

If any person, firm or corporation subject to this chapter shall fail to pay any tax required by this chapter within 30 days after the due date thereof, there shall be added to such tax a penalty of 12 percent of the amount of such tax, plus interest at the rate of 12 percent per annum, and all penalties thereon which shall include court costs and collection fees (including attorney’s fees), shall constitute a debt to the city of Enumclaw, Washington and may be collected by court proceedings, which remedy shall be in addition to all other remedies. (Ord. 1914 § 10, 1996).

3.12.110 Credit and refund.

Any money paid to the city of Enumclaw, Washington through error or otherwise not in payment of the tax imposed or in excess of such tax shall, upon request of the taxpayer, be credited against any tax due or to become due from such taxpayer under this chapter or, upon the taxpayer’s ceasing to do business in the city of Enumclaw, Washington, be refunded to the taxpayer. (Ord. 1914 § 11, 1996).

3.12.120 Annexation notification.

Whenever the boundaries of the city of Enumclaw, Washington are extended by annexation, the city finance director shall make his or her best efforts to provide all persons, firms and corporations subject to this chapter notice of annexation by the first of the succeeding year. However, each person, firm, or corporation performing a business subject to the tax imposed by this chapter shall be responsible for promptly reporting their business activity to the city finance director and every person, firm, or corporation shall be responsible for keeping appraised of whether their operations extend into the now existing or later expanded boundaries of the city of Enumclaw, regardless of whether said person, firm or corporation receives notice of annexation. (Ord. 1914 § 12, 1996).

3.12.130 Regulation promulgation.

The finance director is authorized to adopt, publish and enforce, from time to time, such rules and regulations for the proper administration of this chapter as shall be necessary, and it shall be a violation of this chapter to violate or to fail to comply with any such rule or regulation lawfully promulgated under this section. (Ord. 1914 § 13, 1996).

Chapter 3.14
REAL ESTATE EXCISE TAX

Sections:

3.14.010 Imposition of real estate excise tax.

3.14.012 Capital expenditure fund – Created – Source of moneys.

3.14.014 Limitation of expenditures.

3.14.020 Taxable events.

3.14.030 Consistency with state tax.

3.14.040 Distribution of tax proceeds and limiting the use thereof.

3.14.050 Seller’s obligation.

3.14.060 Lien provisions.

3.14.070 Notation of payment.

3.14.080 Date payable.

3.14.090 Excessive and improper payments.

3.14.010 Imposition of real estate excise tax.

There is hereby imposed a tax of one-quarter of one percent of the selling price on each sale of real property within the corporate limits of this city. (Ord. 1373 § 1, 1982).

3.14.012 Capital expenditure fund – Created – Source of moneys.

There is hereby established a fund entitled “capital expenditure fund” into which shall be placed the proceeds from the one-quarter percent real estate tax together with such other revenues as may be appropriated by the city council for that purpose. (Ord. 1379 § 1, 1982).

3.14.014 Limitation of expenditures.

All such funds derived from the real estate excise tax shall be strictly limited to expenditure for local improvements, including those listed in RCW 35.43.040. (Ord. 1379 § 2, 1982).

3.14.020 Taxable events.

Taxes imposed in this chapter shall be collected from persons who are taxable by the state under Chapter 82.45 RCW and Chapter 458-61 WAC upon the occurrence of any taxable event within the corporate limits of the city. (Ord. 1373 § 2, 1982).

3.14.030 Consistency with state tax.

The taxes imposed in this chapter shall comply with all applicable rules, regulations, laws and court decisions, regarding real estate excise taxes as imposed by the state under Chapter 82.45 RCW and Chapter 458-61 WAC. The provisions of those chapters to the extent they are not inconsistent with this chapter, shall apply as though fully set forth in this chapter. (Ord. 1373 § 3, 1982).

3.14.040 Distribution of tax proceeds and limiting the use thereof.

A. The county treasurer shall place one percent of the proceeds of the taxes imposed in this chapter in the county current expense fund to defray costs of collection.

B. The remaining proceeds from city taxes imposed in this chapter shall be distributed to the city monthly and those taxes imposed under EMC 3.14.010 shall be placed by the city treasurer in a municipal capital improvements fund. These capital improvements funds shall be used by the city for local improvements, including those listed in RCW 35.43.040.

C. This section shall not limit the existing authority of this city to impose special assessments on property benefited thereby in the manner prescribed by law. (Ord. 1373 § 4, 1982).

3.14.050 Seller’s obligation.

The taxes imposed in this chapter are the obligation of the seller and may be enforced through the action of debt against the seller or in the manner prescribed for the foreclosure of mortgages. (Ord. 1373 § 5, 1982).

3.14.060 Lien provisions.

The taxes imposed in this chapter and any interest or penalties thereon are the specific lien upon each piece of real property sold from the time of sale or until the tax is paid, which lien may be enforced in the manner prescribed for the foreclosure of mortgages. Resort to one course of enforcement is not an election not to pursue the other. (Ord. 1373 § 6, 1982).

3.14.070 Notation of payment.

The taxes imposed in this chapter shall be paid to and collected by the treasurer of the county within which is located the real property which was sold. The county treasurer shall act as agent for the city within the county imposing the tax. The county treasurer shall cause a stamp evidencing satisfaction of the lien to be affixed to the instrument of sale of conveyance prior to its recording or to the real estate excise tax affidavit in the case of used mobile home sales. A receipt issued by the county treasurer for the payment of the tax imposed in this chapter shall be evidence of the satisfaction of the lien imposed in EMC 3.14.060 and may be recorded in the manner prescribed for recording satisfactions or mortgages. No instrument of sale or conveyance evidencing a sale subject to the tax may be accepted by the county auditor for filing or recording until the tax is paid and the stamp affixed thereto; in case the tax is not due on the transfer, the instrument shall not be accepted until suitable notation of this fact is made on the instrument by the county treasurer. (Ord. 1373 § 7, 1982).

3.14.080 Date payable.

The tax imposed under this chapter shall become due and payable immediately at the time of sale and, if not so paid within 30 days thereafter, shall bear interest at the rate of one percent per month from the time of sale until the date of payment. (Ord. 1373 § 8, 1982).

3.14.090 Excessive and improper payments.

If, upon written application by a taxpayer to the county treasurer for a refund, it appears a tax has been paid in excess of the amount actually due or upon a sale or other transfer declared to be exempt, such excess amount or improper payment shall be refunded by the county treasurer to the taxpayer; provided, that no refund shall be made unless the state has first authorized the refund of an excessive amount or an improper amount paid, unless such improper amount was paid as a result of a miscalculation. Any refund made shall be withheld from the next monthly distribution to the city. (Ord. 1373 § 9, 1982).

Chapter 3.16
ADDITIONAL REAL ESTATE EXCISE TAX

Sections:

3.16.010 Imposition of the real estate excise tax.

3.16.020 Taxable events.

3.16.030 Consistency with the state tax.

3.16.040 Distribution of tax proceeds.

3.16.050 Special initiative.

3.16.060 Seller’s obligation.

3.16.070 Lien provisions.

3.16.080 Notation of payment.

3.16.090 Date payable.

3.16.100 Excessive and improper payments.

3.16.010 Imposition of the real estate excise tax.

In lieu of imposing the tax authorized by RCW 82.14.030(2), there is hereby imposed an additional tax of one-quarter of one percent of the selling price of each sale of real property within the corporate limits of this city as authorized in ESHB 2929. (Ord. 1691 § 1, 1991).

3.16.020 Taxable events.

Taxes imposed herein shall be collected from persons who are taxable by the state under Chapter 82.45 RCW and Chapter 458-61 WAC upon the occurrence of any taxable event within the corporate limits of this city. (Ord. 1691 § 2, 1991).

3.16.030 Consistency with the state tax.

The taxes imposed herein shall comply with all applicable rules, regulations, laws and court decisions regarding real estate excise taxes as imposed by the state under Chapter 82.45 RCW and Chapter 458-61 WAC. The provisions of these chapters, to the extent that they are not inconsistent with this chapter, shall apply as though fully set forth herein. (Ord. 1691 § 3, 1991).

3.16.040 Distribution of tax proceeds.

A. The county treasurer shall place one percent of the proceeds of the taxes imposed herein in the county current expense fund to defray costs of collection.

B. The remaining proceeds from city taxes imposed herein shall be distributed to the city monthly and shall be placed by the city treasurer in the city’s capital improvement fund.

C. This section shall not limit the existing authority of this city to impose special assessments on property benefited thereby in the manner prescribed by law. (Ord. 1691 § 4, 1991).

3.16.050 Special initiative.

This chapter shall be subject to a special initiative (referendum process), for a 30-day period commencing at the time of final passage. The number of registered voters needed to sign a petition for special initiative shall be 15 percent of the total number of names of persons listed as registered voters within the city on the day of the last preceding municipal general election. If a special initiative petition is filed with the city council, the operation of this chapter shall be suspended until the special initiative petition is found insufficient or until this chapter receives a favorable majority vote by the voters. Procedures for referendum upon petition contained in RCW 35A.11.100 shall apply to any such special initiative petition. (Ord. 1691 § 5, 1991).

3.16.060 Seller’s obligation.

Taxes imposed herein are the obligation of the seller and may be enforced through the action of debt against the seller or in the manner prescribed for the foreclosure of mortgages. (Ord. 1691 § 6, 1991).

3.16.070 Lien provisions.

The taxes imposed herein and any interest or penalties thereon are the specific lien upon each piece of property sold from the time of sale or until the tax is paid, which lien may be enforced in the manner prescribed for the foreclosure of mortgages. Resort to one manner of enforcement is not an election not to pursue another type of enforcement. (Ord. 1691 § 7, 1991).

3.16.080 Notation of payment.

The taxes imposed herein shall be paid to and collected by the treasurer of King County and the county treasurer shall act as an agent for the city for the purpose of collecting this tax. The county treasurer shall cause a stamp evidencing the satisfaction of the lien to be affixed to the instrument of sale or conveyance prior to its recording or to the real estate excise tax affidavit in the case of used mobile home sales. A receipt issued by the county treasurer for the payment of the tax imposed herein shall be evidence of the satisfaction of the lien imposed in EMC 3.16.070 and may be recorded in the manner prescribed for recording satisfactions of mortgages. No instrument of sale or conveyance evidencing a sale subject to the tax may be accepted by the county auditor for filing or recording until the tax is paid and the stamp affixed thereto; in case the tax is not due on the transfer, the instrument shall not be accepted until a suitable notation of this fact is made on the instrument by the county treasurer. (Ord. 1691 § 8, 1991).

3.16.090 Date payable.

The tax imposed hereunder shall become due and payable immediately at the time of sale and, if not so paid within 30 days thereafter, shall bear interest at the rate of one percent per month from the time of sale until the date of payment. (Ord. 1691 § 9, 1991).

3.16.100 Excessive and improper payments.

If, upon written application by a taxpayer to the county treasurer for a refund, it appears a tax has been paid in excess of the amount actually due or upon the sale or other transfer declared as exempt, such excess amount or improper payment shall be refunded by the county treasurer to the taxpayer; provided that no refund shall be made unless the state has first authorized the refund of an excessive amount or an improper amount paid, unless such improper amount was paid as a result of a miscalculation. Any refund shall be withheld from the next monthly distribution to the city. (Ord. 1691 § 10, 1991).

Chapter 3.20
LOCAL IMPROVEMENT
DISTRICT ASSESSMENTS

Sections:

3.20.010 Collection – Authorized in subdivision.

3.20.020 Collection – Assessment record and receipt.

3.20.030 Segregation – Requirement.

3.20.040 Segregation – Certification.

3.20.050 Description fee.

3.20.060 Annual payment deferral.

3.20.010 Collection – Authorized in subdivision.

The treasurer of the city is authorized to collect and receive from any owner or owners of any subdivision or subdivisions of any lot, tract or parcel of land, upon which a local improvement district assessment has been, or may hereafter be made, such portion of the assessment or assessments levied, or to be levied against such lot, tract or parcel of land in the payment of the local improvement as the city engineer shall certify to the city council and the city council shall determine to be chargeable to such subdivision or subdivisions, in accordance with the requirements and provisions of law and the ordinances of the city in force at the time the original charge or assessment was made, together with a similar proportion of any penalties, interest or cost which shall have accrued thereafter. (Ord. 1353 § 1, 1981).

3.20.020 Collection – Assessment record and receipt.

Upon making such collection upon any such subdivision, the city treasurer is authorized to note such collection upon the assessment record, give receipt for such certified portion of the assessment as and for the assessment levied upon and due from the subdivision; provided, that this section shall not authorize segregation of any assessment which has been delinquent for a period of one year or more; or in case where it appears that such property as segregated, in the discretion of the city council, is not sufficient security for the payment of the assessment. (Ord. 1353 § 2, 1981).

3.20.030 Segregation – Requirement.

No segregation of any assessment on unplatted land, or large platted tracts, shall be made until a showing has been made by the applicant for segregation that the proposed segregation of property will conform to the system of streets as they exist in adjacent territory. In all such instances, the city council shall determine such question of fact. (Ord. 1353 § 3, 1981).

3.20.040 Segregation – Certification.

Whenever on account of the filing of a plat or re-plat, or on account of a sale or contract to sell, or other proper evidence of change of ownership of a divided portion of any lot, tract or parcel of land assessed for local improvements, it shall appear to be in the best interest of the city to segregate such assessment, the city council shall authorize the city treasurer to make the proper certification as provided for in this chapter, upon the written application of the owner of the segregated property, and upon the payment of the fees hereinafter provided. (Ord. 1353 § 4, 1981).

3.20.050 Description fee.

A fee of $50.00 per description shall be charged by the city treasurer for each description added to the assessment roll by such certificate authorized by the city council, such fee to be paid by the applicant to the city treasurer and deposited in the general fund. (Ord. 1353 § 5, 1981).

3.20.060 Annual payment deferral.

A. A property owner subject to annual payments under a local improvement district (LID) may defer annual payments on the LID so long as that person qualifies as a low-income senior citizen or low-income disabled person under Chapter 14.90 EMC.

B. The annual payments that were deferred must begin if:

1. The property owner no longer qualifies under Chapter 14.90 EMC.

In such case, the annual payment is due as a payment would normally be due.

The amount that was deferred is due upon the occurrence of any event in subsection (B)(2) of this section, plus deferment interest.

2. The entire amount that was deferred, which includes the assessment plus interest, plus interest paid on the LID (deferment interest), is due if:

a. The property owner transfers the property; or

b. The property owner ceases to reside permanently in the residence subject to the LID.

c. The amounts are due on the above events as follows:

i. If property owner transfers property, it is due upon closing;

ii. If property owner ceases to reside primarily in the residence subject to the LID, it is due within 180 days from the date the property owner ceases to reside primarily in the residence.

Deferment interest shall be that percentage rate that was paid on the LID which shall be applied against the assessment and interest. The interest shall be simple interest applied annually and not compounded.

In the event collection action must be undertaken to recover the deferred payments referred to above, then in addition to the amounts referred to above, the property owner will be required to pay all reasonable attorney fees and costs. (Ord. 1948 §§ 1, 2, 3, 1997).

Chapter 3.24
FEES AND CHARGES FOR SERVICES

Sections:

3.24.010 Categories of services.

3.24.010 Categories of services.

The fees and charges shall include but not be limited to the services and shall be categorized as follows, the amount shall be as established by resolution of the city council:

A. Court.

1. Filing fee.

B. Police.

1. Animal license;

2. Fingerprinting;

3. Concealed weapon permit;

4. Process serving.

C. Streets.

1. Permit to break pavement.

D. Water/Sewer.

1. In-city connection charge;

2. Outside city connection charge;

3. Meter setting charge;

4. Unauthorized water turnon penalty;

5. Meter testing charge;

6. Customer requested turnoff and subsequent turnon;

7. Sewer connection charge;

8. Returned check penalty;

9. Unpaid account turnoff penalty;

10. Unpaid connection charge turnoff penalty;

11. New plat trunkage charge.

E. Gas.

1. Gas account deposit for rentals;

2. Gas fitters license;

3. Gas fitters insurance and bond;

4. Gas permits;

5. Gas plumbing reinspection.

F. Planning and Land Use.

1. Preliminary plat;

2. Final plat;

3. Short plat;

4. Mobile temporary office and night watchman quarters;

5. Mobile home park or trailer court;

6. Conditional use permit;

7. Planned unit development;

8. Quarrying and mining permit;

9. Variance;

10. Rezone;

11. Appeals to board of adjustments. (Ord. 1366 § 1, 1982).

Chapter 3.28
LEASEHOLD EXCISE TAX

Sections:

3.28.010 Imposition.

3.28.020 Rate.

3.28.030 Administration and collection.

3.28.040 Interest exemption.

3.28.050 Inspection of records.

3.28.060 Authorized to contract for administration.

3.28.070 Failure to pay tax – Penalty.

3.28.080 Penalty assessment.

3.28.010 Imposition.

There is hereby levied and shall be collected a leasehold excise tax on and after August 1, 1983, upon the act or privilege of occupying or using publicly owned real or personal property within the city through a “leasehold interest” as defined by Section 2, Chapter 61, Laws of 1975-76, 2nd Extraordinary Session (hereinafter “the state Act”, codified as RCW 82.29A.020). The tax shall be paid, collected and remitted to the Department of Revenue of the state at the time and manner prescribed by Section 5 of the state Act, RCW 82.29A.050. (Ord. 1416 § 1, 1983).

3.28.020 Rate.

The rate of tax imposed by EMC 3.28.010 shall be four percent of the taxable rent. (Ord. 1416 § 2, 1983).

3.28.030 Administration and collection.

The administration and collection of the tax imposed by this chapter shall be in accordance with the provisions of the state Act. (Ord. 1416 § 3, 1983).

3.28.040 Interest exemption.

Leasehold interest exempt by Section 13 of the state Act, RCW 82.29A.130, as it now exists or may hereafter be amended shall be exempted from tax imposed pursuant to EMC 3.28.010. (Ord. 1416 § 4, 1983).

3.28.050 Inspection of records.

The city hereby consents to the inspection of such records as are necessary to qualify the city for inspection of records from the Department of Revenue pursuant to RCW 82.32.330. (Ord. 1416 § 5, 1983).

3.28.060 Authorized to contract for administration.

The city administrator is authorized to execute a contract with the Department of Revenue in the state for the administration and collection of the tax imposed by this chapter. (Ord. 1416 § 6, 1983).

3.28.070 Failure to pay tax – Penalty.

Failure to pay any tax due hereunder shall constitute a misdemeanor and a person or persons convicted of such crimes shall be subject to a fine of up to $250.00 for each separate offense. (Ord. 1416 § 8, 1983).

3.28.080 Penalty assessment.

All taxes not paid when due pursuant to the terms of this chapter and the state Act shall be subject to a penalty assessment in addition to the tax itself in an amount equal to 20 percent of the total tax delinquency. (Ord. 1416 § 9, 1983).

Chapter 3.40
FRANCHISE REGULATIONS – CABLE TV²

Sections:

3.40.010 Purpose.

3.40.020 Definitions.

3.40.030 Terms of franchise.

3.40.040 Franchise issuance.

3.40.050 Council determinations – Rejection or further consideration of application.

3.40.060 Procedure for renewal of franchise.

3.40.070 Transfer of ownership.

3.40.080 Franchise fee.

3.40.090 Indemnity.

3.40.100 Bonds.

3.40.110 Insurance.

3.40.120 Franchisee’s obligations to the public.

3.40.130 City rights to make improvements.

3.40.140 Permits required, terms of use and occupancy of streets.

3.40.150 Compliance.

3.40.160 Rates.

3.40.170 Nondiscrimination.

3.40.180 Equalization of civic contributions.

3.40.190 Subordinate to city and prior lawful occupancy.

3.40.200 No recourse against the city for loss or expense.

3.40.210 Subsequent action by state or federal agencies.

3.40.220 Cable system evaluation.

3.40.230 Record inspection.

3.40.240 Reports.

3.40.250 Termination and revocation.

3.40.260 Remedies to enforce compliance.

3.40.270 Interpretation.

3.40.280 Effect of prior franchises.

3.40.290 Incorporation by reference into each franchise.

3.40.300 Severability.

3.40.310 Inconsistency.

3.40.010 Purpose.

It is the purpose of this chapter to regulate in the public interest the operation of cable systems and their use of the public streets by establishing procedures for the granting and termination of franchises, by prescribing rights and duties of operators and users of cable systems, and by providing generally for cable service to the citizens of Enumclaw. (Ord. 1841 § 1, 1995).

3.40.020 Definitions.

A. “Access channels” (public, educational or governmental access facilities) means:

1. Channel capacity designated for public, educational, government use; and

2. Facilities and equipment for the use of such channel capacity.

B. “Access facilities” means materials and equipment for the use of such channel capacity.

C. “The Act” collectively means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992 as amended.

D. “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.

E. “Applicant” means any person or entity that applies for a franchise.

F. “Basic cable service” means 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 programing required by the franchise to be carried on the basic tier; and any additional video programing signals and service added to the basic tier by a cable operator.

G. “Cable services” means:

1. The one-way transmission to subscriber of video programming or other programming service; and

2. Subscriber interaction, if any, which is required for the selection by the subscriber of such video programming.

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 alphanumerical programming to be cablecast on a cable channel.

J. “City” means the city of Enumclaw, 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.

L. “Council” means the present governing body of the city or any future board constituting the legislative body of the city.

M. “Data transmission” means:

1. The movement of encoded information by means of electrical or electronic transmission systems;

2. The transmission of data from one point to another over communications channels.

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

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

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

S. “Gross revenues” means any and all receipts and revenues received directly from provision of cable service over the cable system including, but not limited to, other sources of revenues such as local and national advertising and Home Shopping Channel revenues, other than transactions related to real property receipts by a franchisee not including any taxes on services furnished by a franchisee, imposed on any subscriber or used by any governmental unit, agency or instrumentality and collected by a franchisee for such entity; provided also that net uncollectible debts are not considered as revenue in this definition.

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

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

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

W. “Interactive services” means services provided to subscribers where the subscriber either:

1. Both receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or

2. Transmits signals to any other location for any purpose.

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

Y. “Operator” means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of this chapter.

Z. “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 pursuant to this chapter.

AA. “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.

BB. “Public way” or “street” means the surface, the air space above the surface and the area below the surface of any public street, including, but not limited to, any public alley, boulevard, drive, easement, right-of-way or sidewalk under the jurisdiction of the city.

CC. “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. (Ord. 1841 § 2, 1995).

3.40.030 Terms of franchise.

A. Authority to Grant Franchise. The council may grant a nonexclusive franchise for all or any defined portion of the city. The service area shall be the entire area defined in a franchise agreement between the city and a franchisee. The initial service area shall be that portion of the franchise area scheduled to receive initial service, as stated in the franchise agreement.

B. Grant. In the event that the council shall grant to a franchisee a nonexclusive, revocable franchise to construct, operate, maintain and reconstruct a cable communications system within the franchise area, or renewal of an existing franchise, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system as required by the provisions of this chapter and the franchise agreement. The franchise agreement shall include those provisions of a franchisee’s application for franchise that are finally negotiated and accepted by the council and a franchisee.

Any franchise granted under the terms and conditions contained herein shall be consistent with federal, state and local laws and regulations. In the event of conflict between the terms and conditions of the franchise and law or statutory requirements, the law or statutory requirements shall control.

Any franchise granted is hereby made subject to the general ordinance provisions now in effect or hereafter made effective. Nothing in the franchise shall be deemed to waive the requirements of other codes and ordinances of the city with regard to permits, fees to be paid or manner of construction.

C. Franchise Required. No cable communications system shall be allowed to occupy or use the streets in the franchise area or be allowed to operate unless the city has granted a franchise for such system in accordance with the provisions of this chapter.

D. Establishment of Franchise Requirements. The city may establish requirements reflecting changing technology, economic or legal issues as appropriate that may affect a new or renewal franchise at such time that these applications are received.

E. Duration. The term of any new franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be as established in the franchise agreement, unless terminated sooner as hereinafter provided.

F. Franchise Nonexclusive. Any franchise granted shall be nonexclusive. The city specifically reserves the right to grant, at any time, such additional franchises for a cable communications system as it deems appropriate, provided however, that such additional grants shall not operate to materially modify, revoke, or terminate any rights previously granted to any franchisee. (Ord. 1841 § 3, 1995).

3.40.040 Franchise issuance.

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

A. Initial Franchise.

1. That the public will be benefited by the granting of a franchise to the applicant;

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

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

4. That the applicant will comply with all terms and conditions placed upon a franchisee by this chapter;

5. 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;

6. The capacity of public rights-of-way to accommodate the cable system;

7. The present and future use of the public rights-of-way to be used by the cable system; and

8. 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;

9. Any other condition that the city may deem appropriate.

B. Renewal Franchise.

1. That the applicant has substantially complied with the term of the existing franchise;

2. That the quality of the applicant’s previous service has been reasonable in light of community needs;

3. That an applicant’s proposal is reasonable to meet the future cable-related community needs and interests taking into account the cost of meeting such needs and interests;

4. The capacity of public rights-of-way to accommodate the cable system;

5. The present and future use of the public rights-of-way to be used by the cable system;

6. 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; and

7. Any other condition that the city may deem appropriate. (Ord. 1841 § 4, 1995).

3.40.050 Council determinations – Rejection or further consideration of application.

The applicant shall be afforded full opportunity to participate in the hearing, including the right to introduce evidence, to require the production of evidence, and to question witnesses.

At the completion of the hearing, the council shall issue a written decision, stating its reasons for granting or denying the application, based upon the record of such proceeding, and shall transmit a copy of such decision to the applicant. (Ord. 1841 § 5, 1995).

3.40.060 Procedure for renewal of franchise.

The procedure for granting any franchise pursuant to this chapter shall be as follows:

A. Upon receipt of any application for the granting or renewal of such a franchise, the council shall schedule a public hearing and cause notice thereof to be published at least once a week for each of two weeks preceding the hearing in the newspaper of general circulation within the city, which notice shall contain the same information as described in EMC 3.40.040, Franchise Issuance.

B. The council shall consider public testimony and comment in the same manner as set forth in EMC 3.40.040, Franchise Issuance, but shall instead consider the following as criteria for granting or denying any franchise renewal:

1. Whether the applicant has substantially complied with the material terms of the existing franchise and with applicable law;

2. Whether the quality of the applicant’s service, including signal quality, response to consumer complaints and billing practices, but without regard to the mix, quality, or level of cable services or other services provided over the system, has been reasonable in light of community needs;

3. Whether the applicant has the financial, legal and technical ability to provide the services, facilities and equipment as set forth in the operator’s proposal or application; and

4. Whether the applicant’s proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.

C. In any hearing for a franchise renewal, the applicant shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, and to question witnesses.

D. At the completion of a proceeding under this section, the council shall issue a written decision stating the reasons for such decision granting or denying the application for renewal based upon the record of such proceeding, and shall transmit a copy of such decision to the applicant. (Ord. 1841 § 6, 1995).

3.40.070 Transfer of ownership.

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, such consent not to be 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 50 percent 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. (Ord. 1841 § 7, 1995).

3.40.080 Franchise fee.

A franchisee shall make payment to the city on a quarterly basis (on or before the thirtieth day of each January, April, July and October), in a sum equal to five percent of the franchisee’s gross revenues from the operation of the cable system. The city may raise the franchise fee, if so permitted by federal and/or state law. Prior to implementation of any increase in franchise fees the operator may request a public hearing by the city council to discuss said increases. Following such a hearing the city council may amend or confirm such increases. The city shall have the right, upon reasonable advance notice, to inspect the books of a franchisee for this purpose, during normal business hours. (Ord. 1841 § 8, 1995).

3.40.090 Indemnity.

By acceptance of a franchise granted pursuant to this chapter and the rights and privileges thereby granted, a franchisee shall covenant and agree with the city for itself, its successors and assigns, to at all times, defend, indemnify and hold harmless the city, its officers, officials, employees and agents from any and all claims, actions, suits, liability, loss, cost, expenses or damages of every kind or description which may accrue to or be suffered by any person or persons or property, and to appear and defend at its own cost and expense, any action instituted or begun against the city for damages by reason of a franchisee’s construction, reconstruction, readjustment, repair, maintenance, operation or use of the streets of the city, or any act(s) or omission(s) of a franchisee, its successors or assigns, exercising any privilege conferred by this chapter or by such franchise; provided, however, that in the event any such claim, action, suit or demand be presented to or filed with the city or any court having jurisdiction, the city shall notify franchisee thereof, and the franchisee shall have the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand, or to defend the same at its sole cost and expense, by attorneys of its own decision.

In case judgment shall be rendered against the city in any such suit or action, each party shall fully satisfy such judgment to the extent of its comparative fault within 90 days after such action or suit shall have been finally determined, if determined adversely to either party. (Ord. 1841 § 9, 1995).

3.40.100 Bonds.

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 regarding 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 in favor of the city warranting that all restoration work will be done promptly and in a workmanlike manner and that penalties, if any, after final adjudication are paid to the city within 90 days of such finding. (Ord. 1841 § 10, 1995).

3.40.110 Insurance.

A franchisee shall furnish the city with a certificate of comprehensive liability insurance naming the city as an additional insured. The amount of such policy shall be as deemed appropriate by the city. Such insurance must be in place no later than the date of acceptance of a franchise by a franchisee. This insurance shall be maintained in full force at the franchisee’s expense throughout the period of the franchise. The city may delineate more specific details concerning such insurance prior to the award of a given franchise. (Ord. 1841 § 11, 1995).

3.40.120 Franchisee’s obligations to the public.

A franchisee, in the use of the public streets and rights-of-way, shall ensure that:

A. The safety, functioning and appearance of the property and the convenience and safety of persons will not be adversely affected by the installation or construction of facilities necessary for a cable system;

B. The cost of the installation, construction, operation or renewal of such facilities be borne by a franchisee or subscriber, or a combination of both; and

C. The owner of property will be justly compensated by a franchisee for any damages caused by the installation, construction, operation or removal of such facilities by the cable operator.

It shall be a franchisee’s sole responsibility when cable passes over or under private or publicly owned property to obtain all necessary permission from the owner thereof. (Ord. 1841 § 12, 1995).

3.40.130 City rights to make improvements.

Nothing in this chapter shall be construed to prevent the city or any local improvement district from sewering, paving, grading, altering or otherwise improving or re-improving any of the streets of the city, including the installation of city-owned utilities, and the city shall not be liable for any damages resulting to a franchisee by reason of the performance of such work or by exercise of such rights by the city. This chapter shall not be construed so as to deprive the city of any rights or privileges which it now has, or which may hereafter be conferred upon it to regulate and control the use of the streets.

A franchisee shall, at its sole cost and expense, protect, support, temporarily disconnect, relocate or remove from any street, right-of-way or any other public place, any of its installations when so required by the city for reasons of traffic conditions or public safety, street vacations, dedications of new rights-of-ways and the establishment and improvement thereof, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity.

The city will make its best effort and attempt to design or redesign streets, avenues, alleys, public places or ways, and other city utilities to minimize the impact thereof on a franchisee’s existing facilities, including the need to require a franchisee’s facilities to be relocated; provided, however, the city shall make the final determination on the need for relocation of a franchisee’s facilities.

Whenever the city determines that any of the above circumstances necessitate the relocation of a franchisee’s then existing facilities, the city shall provide a franchisee with at least 60 days written notice unless an emergency exists requiring such relocation, which shall be completed by a franchisee at no cost and within the time frame set by the city. Upon the franchisee’s failure to complete relocation to its installations and facilities so directed, the city may remove same at a franchisee’s expense. (Ord. 1841 § 13, 1995).

3.40.140 Permits required, terms of use and occupancy of streets.

The terms and conditions of a franchisee’s use and occupancy of public streets and public rights-of-way in the city shall be as follows:

A. Safety Requirements. A franchisee, in accordance with applicable national, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public.

All structures and all lines, equipment and connections in, over, under, and upon the 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.

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.

B. 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.

C. Undergrounding. In any area of the city in which telephone, electric power wires and cables have been placed underground, a franchisee shall not be permitted to erect poles or to run or suspend wires, cables or other conductors thereon, but shall lay such wires, cables or conductors underground in such manner as is required by the city. If an ordinance is passed creating a local improvement district which involves placing underground certain utilities including that of a franchisee which are then located overhead on poles and suspended wires, a franchisee shall participate in such underground project and shall remove poles, cables and wires from the surface of the streets within such district and shall place the same underground in conformity with the requirements of the public works director.

D. Pole Installation and Attachment – Joint Use. All poles, cables, wires, antennae, conduits or appurtenances shall be constructed and erected in a neat, workmanlike manner and shall be of such height and occupy such position as the director of public works shall approve. A franchisee erecting or maintaining poles shall allow anyone constructing under the authority of this chapter and the city, joint use of its poles upon payment of a reasonable proportion of the cost of such poles installed and shall obey any order issued by the director of public works relative to the joint use of poles.

E. Building Moving. Whenever a person shall have obtained permission from the city to use any street for the purpose of moving any building, a franchisee, upon 14 days’ written notice from the city, shall raise or remove, at the expense of the permittee desiring to move the building, any of a franchisee’s wires which may obstruct the removal of such building; provided, that the moving of such building shall be done in accordance with 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, which path of least interference shall be determined by the director of public works.

F. Relocation of Facilities. A franchisee shall, unless an emergency arises, upon 60 days’ notice, at its own cost and expense, move any underground, surface or overhead construction which interferes with any local improvement district work or with any construction for public purposes authorized or ordered by the city.

G. Abandonment of Facilities. A franchisee accepting a franchise under the terms of this chapter for the installation of ducts, utility tunnels, vaults, manholes, poles, wires or any other appurtenances, shall remove such installation when it is no longer required or used and the director of the public works department orders the removal thereof.

H. 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.

I. Dangerous Conditions – Authority of City to Abate. Whenever a franchisee’s construction, installation or excavation of facilities authorized by this chapter has caused or contributed to a condition that appears to substantially impair the lateral support of the adjoining street or public places, streets, utilities or city property, or endangers the public, the public works director may direct a franchisee, at its own expense, to take actions to protect the public, adjacent public places, city property or street utilities; and such action may include compliance within a prescribed time.

In the event that a franchisee fails or refuses to promptly take the actions directed by the city, or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, the city may enter upon the property and take such actions as are necessary to protect the public, the adjacent streets, or street utilities, or to maintain the lateral support thereof, or actions regarded as necessary safety precautions; and a franchisee shall be liable to the city for the costs thereof.

J. Restoration of Streets. After construction, installation, maintenance or repair of the facilities authorized by this chapter or any permit obtained by virtue of a franchise granted under this chapter, a franchisee shall leave all streets, avenues, highways or public places in as good and safe condition in all respects as they were before the commencement of such work by a franchisee. The public works director shall have final approval of the condition of such streets and public places after completion of construction.

K. Reimbursement. Franchisee shall reimburse the city for all actual administrative expenses incurred by the city that are directly related to receiving and approving a permit or license and to inspect plans and construction. Where the city incurs actual administrative expenses for review or inspection of activities undertaken through the authority granted in this franchise (and which such expenses are not duplicative of expenses which are reflected in some other city-imposed charge or fee), franchisee shall pay such expenses directly to the city; provided, however, that the city shall provide franchisee an estimate of its expenses when those expenses are expected to exceed four hours at the city’s regular hourly inspection rate. (Ord. 1841 § 14, 1995).

3.40.150 Compliance.

Construction, maintenance and operation of a franchisee’s system including house connections, shall be in accordance with the provisions of this chapter and in accordance with the provisions of all other applicable codes and ordinances, including the National Electrical Code, and a franchisee shall comply with all applicable state and federal laws and the rules and regulations of the FCC relating to cable television systems. (Ord. 1841 § 15, 1995).

3.40.160 Rates.

Subject to federal, state and local law, the city may establish and regulate the rates or charges for providing cable service and establish rate regulation procedures. In the event that federal laws are subsequently enacted that would allow the city to review, regulate and establish the rate charged to a subscriber for cable services, the city may thereafter take such action.

Within 30 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 subscribers. Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, a franchisee shall provide to the city and all subscribers a minimum of 30 days’ written notice of the new schedule of rates to be charged. (Ord. 1841 § 16, 1995).

3.40.170 Nondiscrimination.

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 chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules including discounts to senior citizens and disabled persons of low income 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.

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. (Ord. 1841 § 17, 1995).

3.40.180 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, bidirectional 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 the 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. The city council, in such cases of dispute of award, may be called upon to arbitrate regarding these arrangements. (Ord. 1841 § 18, 1995).

3.40.190 Subordinate to city and prior lawful occupancy.

Any privilege claimed under any such franchise by a franchisee in a street or other public property shall be subordinate to the city’s lawful police powers and to any prior lawful occupancy of the streets or other public property. In addition to the inherent powers of the city to regulate and control any franchise the city 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 to the city to promulgate such additional regulations of general applicability as it may find necessary in the exercise of its lawful powers. (Ord. 1841 § 19, 1995).

3.40.200 No recourse against the city for loss or expense.

A franchisee shall have no recourse whatsoever against the city for any loss, cost, expense or damages arising out of the issuance of a franchise under this chapter or because of the city’s related lawful enforcement actions. (Ord. 1841 § 20, 1995).

3.40.210 Subsequent action by state or federal agencies.

If any subsequent federal, state or local law, ordinance or regulation shall require or permit a franchisee to perform any act which may be in conflict with the terms of this chapter, or shall prohibit a franchisee from performing any act in conformance with the terms of this chapter, then as soon as possible following knowledge thereof, a franchisee shall so notify the city. If the council determines that a material provision of this chapter is affected by such changed or new law, ordinance or regulation, the city and a franchisee shall enter into good faith negotiations to modify this chapter to conform with such changed requirements. Failure to complete these negotiations to the satisfaction of both parties within a reasonable time shall constitute a material breach of the franchise, but in no event shall a period of less than 180 days be deemed unreasonable pursuant to this section. (Ord. 1841 § 21, 1995).

3.40.220 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. (Ord. 1841 § 22, 1995).

3.40.230 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. (Ord. 1841 § 23, 1995).

3.40.240 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. A summary of complaints received by category, length of time taken to resolve and action taken to provide resolution;

J. Copies of all FCC complaint logs;

K. A statement of its current billing practices, and a sample copy of the bill format;

L. A current copy of its subscriber service contract;

M. Report on operations. Such other reports with respect to its local operation, affairs, transactions or property that may be appropriate. (Ord. 1841 § 24, 1995).

3.40.250 Termination and revocation.

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 noncompliance of its franchise. A franchisee shall have 45 days from the date of notice of noncompliance to cure such alleged default or, if such default cannot be cured within 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 chapter and its franchise may be revoked or terminated by the council after a public hearing. A franchisee shall be entitled to not less than 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. (Ord. 1841 § 25, 1995).

3.40.260 Remedies to enforce compliance.

In addition to any other remedy provided herein, the city reserves the right to pursue any lawful remedy to compel or force a franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the city shall not prevent the city from thereafter initiating the termination or revocation procedures established in this chapter. (Ord. 1841 § 26, 1995).

3.40.270 Interpretation.

A franchisee shall comply with all pertinent rules, regulations and requirements of the FCC, or any other federal or state body or agency having jurisdiction in regard to cable television systems. (Ord. 1841 § 27, 1995).

3.40.280 Effect of prior franchises.

Nothing contained in this chapter shall abridge, impair, alter, modify or in any way affect any right, privilege or immunity of either a franchisee or the city conferred by or arising under any cable franchise granted prior to and remaining in effect on the effective date of the ordinance; provided, that the acceptance of a franchise granted under this chapter for any cable service area shall be deemed to constitute the surrender by a franchisee of the right to operate a cable television system in that cable service area under any prior franchise. (Ord. 1841 § 28, 1995).

3.40.290 Incorporation by reference into each franchise.

The Cable Communications Master Ordinance shall be incorporated in its entirety by reference into and become a part of each and every cable television franchise granted by the city. (Ord. 1841 § 29, 1995).

3.40.300 Severability.

Each section, subsection or other portion of this chapter is severable, and the invalidity of any section, subsection or other portion shall not invalidate the remainder. (Ord. 1841 § 30, 1995).

3.40.310 Inconsistency.

If any portion of this chapter 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 chapter shall not be affected thereby. (Ord. 1841 § 31, 1995).

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Footnotes

1. Prior legislation: 1958 Code Ch. 3.44; Ords. 1079 and 1359.

2. Prior legislation: Ords. 1263, 1545 and 1798.