Chapter 12.50 CABLE SYSTEM REGULATIONS

B. Establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of the public ways and City property;

C. Promote competition in cable service;

D. Encourage the provision of advanced and competitive cable services on the widest possible basis to the residents of the City;

E. Secure fair and reasonable compensation to the City for permitting private use of the public ways and City property;

F. Assure that the City can continue to fairly and responsibly protect the public health, safety and welfare;

G. Enable the City to discharge its public trust consistent with rapidly evolving federal and State regulatory policies, industry competition and technological development;

H. Grant and regulate franchises for systems of cable systems within the public rights-of-way within the City’s boundaries, as authorized by the federal Cable Act;

I. Set forth an integrated statement of the conditions, requirements, obligations and duties for the construction, maintenance and operation of a system of cable system within the City. (Ord. 2588 § 1, 2010).

12.50.0020 Definitions.

For the purpose of this chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:

“Access channel” or “public, educational or government access (PEG) channel” means any channel utilized for noncommercial PEG programming without charge by the cable operator, the component parts of which are:

“Educational access channel” means any channel available for educational programming by individuals or institutions.

“Government access channel” means any channel available for programming by government agencies.

“Public access channel” means any channel where any member of the general public may be a programmer on a nondiscriminatory basis, subject to operating rules formulated by the City or its designee. Such rules shall not be designed to control the content of public access programming.

“Addressability” means the ability of a cable system to allow the cable operator to authorize customer terminals to receive, change or cancel any or all specified programming by remote control from a remote location.

“Affiliate,” when used in connection with a cable operator, means a person that owns or controls, is owned or controlled by, or is under common ownership or control with a cable operator.

“Applicant” means any person or entity that applies for a franchise pursuant to this chapter.

“Bad debt” means amounts lawfully owed by a subscriber and accrued as revenues on the books of a cable operator, but not collected after reasonable efforts by the cable operator.

“Basic service” shall, at a minimum, include all signals of domestic television broadcast stations provided to residential subscriber (except a signal secondarily transmitted by satellite carrier beyond the local service area of such station, regardless of how such signal is ultimately received by the cable system), any public, educational, and governmental programming required by federal law to be carried on the basic tier, and any additional video programming signals and service added to the basic tier by the cable operator.

“Cable Act” shall mean the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Reform Act of 1996, all codified at 47 USC 521 et seq., as now and hereafter amended.

“Cable facilities” means equipment and wiring used in the cable system.

“Cable operator” means any person or group of persons who provides cable service over a cable system and directly or through 1 or more affiliates, owns a significant interest in such cable system or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of such a cable system.

“Cable service” means:

1. The 1-way transmission to subscribers of:

a. Video programming; or

b. Other programming service; and

2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

“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 in the City, but such term does not include:

1. A facility that serves only to retransmit the television signals of 1 or more television broadcast stations;

2. A facility that serves subscribers without using any public right-of-way;

3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such facilities shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

4. An open video system that complies with 47 USC 573 as now existing or hereafter amended; or

5. Any facilities of any electric utility used solely for operating its electric utility system.

“Cablecast” means the distribution of video programming over the cable system.

“Channel” or “cable channel” means a portion of the electromagnetic frequency band capable of carrying a video programming service, an audio service or a combination of video programming services and audio services, which is used in a cable system and whether delivered in an analog or digital format.

“City” means the City of Issaquah, Washington, in King County, and all the territory within the corporate boundaries of Issaquah as these may change from time to time.

“City property” means and includes all real property owned by the City, other than public ways and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the City, which is not subject to right-of-way franchising as provided in this chapter.

“Commercial subscriber” means a subscriber receiving cable services in a business or other commercial enterprise, where the services are to be used primarily in conjunction with the enterprise and the rates for services are individually negotiated with the subscriber.

“Council” means the City Council of the City of Issaquah, Washington.

“CTC” means the City of Issaquah Cable Television Commission.

“Digital converter” means a device for changing the frequency of a television signal.

“Dwelling units” means residential living facilities as distinguished from temporary lodging facilities such as hospitals, hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes, extended-care facilities and other multiple-family residential units.

“Emergency” means a condition of imminent danger to the health, safety, and welfare of property or persons located within the City including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots or wars.

“FCC” or “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.

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

“Franchise” means a document, a contractual agreement, and any amendment and modifications thereof, executed between the City and the cable operator, which authorizes the construction or operation of a cable system in the franchise area.

“Franchise area” means the corporate boundaries of the City as these may change from time to time.

“Grantee” means any person that is awarded a franchise in accordance with this chapter, and that person’s lawful and permitted successor, transferee, or assignee of the original grantee.

“Gross revenues” means all revenue derived directly or indirectly by the cable operator, or by cable operator’s affiliates, from the operation of cable operator’s cable system to provide cable services in the franchise area. Gross revenues include, by way of illustration and not limitation, monthly fees charged subscribers for cable services including basic service and all other tiers of cable service; pay-per-view service; cable service installation, disconnection, change-in-service and reconnection fees, leased access channel fees, late fees, payments received by the cable operator from programmers for carriage of cable services on the cable system and recognized as revenue under generally accepted accounting principles (“GAAP”), revenues from rentals of cable system equipment such as converters; advertising revenues (including local, regional, and a pro rata share of national advertising carried on the cable system in the franchise area) net of commissions due to advertising agencies that arrange for the advertising buy and as recognized as revenue under GAAP; additional outlet fees, franchise fees, and revenues from home shopping channels. Gross revenues shall not include (1) bad debt; provided, however, that all or part of any such bad debt that is written off but subsequently collected shall be included in gross revenues in the period collected; (2) any access capital contribution; (3) any payments by the City to cable operator for I-Net maintenance or expansion; or (4) any taxes on services furnished by the cable operator which are imposed directly on any subscriber or user by the State, City or other governmental unit and which are collected by the cable operator on behalf of said governmental unit. The franchise fees are not such a tax and are therefore included in gross revenues.

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

“Installation” means the connection of the cable system.

“Institutional networks (I-Nets)” means a noncommercial internal network used for communications from and among government agencies, schools, libraries and other public agencies, which, subject to other limitations, includes encrypted wireless, Internet, telecommunications, information, voice, video and data services. “Noncommercial internal network communications” excludes any other uses, such as the subleasing, gifting, or reselling I-Net capacity to a third party for any purpose.

“Leased access channel” means any channel or portion of a channel commercially available for programming in accordance with Section 612 of the Cable Act.

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

“Other ways” means the highways, streets, alleys, utility easements or other rights-of-way within the City, but under the jurisdiction and control of a governmental entity other than the City.

“Overhead facilities” means utility poles, utility facilities, cable system, and telecommunication and cable service facilities located above the surface of the ground, including the underground supports and foundations for such facilities.

“Pay service” or “premium service” means a service in which television signals are delivered to subscribers for a special fee or charge over and above the regular charges for standard subscriber service, on a per program, per channel, or other subscription basis.

“Person” means any individual, partnership, association, joint stock company, trust, corporation, governmental entity (but shall not mean the City) or other entity.

“Programmer” means any person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital or other storage methods or media, to subscribers, by means of a cable system.

“Public way(s)” or “right(s)-of-way” means land acquired or dedicated to the public or that is hereafter dedicated to the public and maintained under public authority or by others, including, but not limited to, public streets or roads, highways, avenues, lanes, alleys, bridges, sidewalks, easements and similar public property located within the franchise area.

“Resident” means any natural person residing within the City.

“Residential cable service” means cable services delivered to residents by a cable system.

“Residential subscriber” means a resident who receives cable services from the cable system.

“School” means any State-accredited public educational institution including, for example, primary and secondary schools (K-12).

“State” means the State of Washington.

“Subscriber” means a person, entity, or user of a cable system who lawfully receives cable services or other service therefrom with express permission from a cable operator.

“Underground facilities” means utility, telecommunication and cable service facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.

“Utility easement” means any easement dedicated or devoted for public utility purposes and compatible uses thereof.

“Video programming” means programming provided by, or generally considered comparable to programming provided by, cable programmers or a television broadcast station.

“Year” means a full 12-month calendar year, unless designated otherwise, such as a “fiscal year.” (Ord. 2588 § 1, 2010).

12.50.0030 Business and utility occupation licenses required.

All cable operators engaged in the business of transmitting, supplying or furnishing of cable service originating or terminating in the City shall apply for and obtain a business license pursuant to Chapter 5.02 IMC, a utility occupation license pursuant to Chapter 5.32 IMC, and pay all license fees, business and occupation taxes, and utility taxes related thereto.

Any license fees, utility tax, business and occupation taxes, or similar tax shall be in addition to any franchise fees required herein and shall not be offset against franchise fees. (Ord. 2588 § 1, 2010).

12.50.0040 Cable service franchise required.

Any cable service carrier or other person who desires to construct, install, operate, maintain or locate cable service facilities in any public way in the City for the purpose of providing cable service to persons in the City shall first obtain a cable franchise from the City pursuant to this chapter. (Ord. 2588 § 1, 2010).

12.50.0050 Construction permits required.

The holder of a franchise granted pursuant to this chapter shall, in addition to said franchise, be required to obtain a construction permit from the City pursuant to the Issaquah Municipal Code. No construction of any equipment or facilities shall take place within the public ways until such time as the construction permit is issued. (Ord. 2588 § 1, 2010).

12.50.0060 Application to existing franchise ordinances, agreements, leases, and permits – Effect of other laws.

A. This chapter shall have no effect on any existing franchise ordinance, franchise agreement, lease, or permit to use or occupy a public way in the City until:

1. The expiration of said franchise ordinance, agreement, lease, or permit; or

2. The amendment to an unexpired franchise ordinance, franchise agreement, lease, or permit, unless both parties agree to defer full compliance to a specific date not later than the present expiration date.

B. Nothing in this chapter shall be deemed to create an obligation upon any person for which the City is forbidden to require a permit, license, or franchise by federal, State, or other law. (Ord. 2588 § 1, 2010).

12.50.0070 Remedies.

Nothing in this chapter shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of this chapter. (Ord. 2588 § 1, 2010).

12.50.0080 Cable service franchise.

A franchise shall be required of any cable operator, or other person who desires to occupy the public ways of the City and to provide cable service to any person or area in the City. The City shall regulate the operations of each cable operator in accordance with this chapter, under a franchise, and under such additional federal, State and local laws, rules, and regulations as the City shall have authority to enforce. For purposes of carrying out its regulatory authority, the City has established the CTC and specified the purpose, membership, rules, staff support, and duties of the CTC, by Ordinance No. 1600, as said ordinance presently exists, or is amended in the future. (Ord. 2588 § 1, 2010).

12.50.0090 Application for franchise.

Each application for the grant of a franchise to construct, operate and maintain any cable system within public ways of the City shall be filed with the City Clerk in a form approved by the Mayor. Applicants for initial franchises shall contain the following information:

A. Applicant’s Statement of Business Organization and Financial Plans. Each applicant shall provide a detailed statement of its business organization, including the following:

1. The name and address of the applicant and the names and business addresses of all officers and directors of the applicant;

2. The names and addresses of all persons having control of, or being entitled to have or control, 5 percent or more of the ownership of the applicant, either directly or indirectly, and the respective ownership share of each person;

3. The names and addresses of any parent or subsidiary of the applicant (i.e., any other business entity owning or controlling the applicant in whole or in part or owned and controlled in whole or in part by the applicant) and a statement describing the nature of any such parent or subsidiary business entity;

4. A detailed description of all previous experience of the applicant in providing cable television and related cable services;

5. A statement identifying all cable television systems owned or controlled by the applicant, its parent(s) and subsidiary(ies), the number of subscribers in each system, the local jurisdiction having regulatory authority over the system, the status of each system with respect to completion of construction, the total cost of completion of each system and the extent of the resources of the applicant, its parent(s) and subsidiary(ies) committed to completion;

6. A statement of the estimated cost of constructing any proposed system and a detailed financing plan for the system, including but not limited to evidence of the availability of all debt and equity funding required for the system;

7. An organizational chart showing the relationships between the applicant and each parent and subsidiary entity involved in the provision of cable television service.

B. Each applicant shall provide a detailed plan of its operation, identifying whether the operation will be carried out by the applicant or any affiliate of the applicant, which shall include:

1. A description and detailed map of the franchise area proposed to be served and a proposed time schedule for installation in each neighborhood or portion of the area;

2. A description of the equipment to be utilized and operational standards to be met as proposed by the applicant;

3. A statement that the applicant is willing and able to comply with all relevant federal, State and local regulations regarding cable communications and other applicable rules and regulations. If there have been any fines or penalties incurred by the applicant for the violation of such regulations within the 5 years previous to the application, these violations shall be reported in the statement;

4. A detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral or implied, existing or proposed to exist between the applicant and any person, firm or corporation, which materially relate or pertain to or depend upon the application and the granting of the franchise;

5. A copy of any agreement existing between the applicant and any public utility subject to regulation by Washington Public Utilities Commission, providing for the use of any facilities of the public utility, including but not limited to poles, lines or conduits, within the City or adjacent areas;

6. A statement of the extent to which and by what technical means the applicant proposes to link its network to other wire or wireless networks serving the City to provide voice, video and data services.

C. The applicant shall include an application fee, as provided by IMC 3.65.040. (Ord. 2588 § 1, 2010).

12.50.0100 Length of franchise term.

Each new franchise granted by the City under this chapter shall be for a term set in the franchise and shall be for no more than 15 years from the date of acceptance by the cable operator. (Ord. 2588 § 1, 2010).

12.50.0110 Franchise termination for noncompliance.

A. After exhausting the cure procedures as established in this chapter, the City Council shall have the right to terminate a franchise if the cable operator demonstrates a pattern of noncompliance with any provision of this chapter or a franchise.

B. The City may also terminate the franchise if any of the following circumstances occur:

1. The cable operator’s completion of system initial construction, upgrade or rebuild, as required by a franchise, is delayed for more than 18 months from the completion date identified in a construction schedule approved by the City or such shorter period as may be specified in a franchise; or

2. The cable operator or any parent company of the cable operator becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt; or

3. The cable operator is found to have engaged in any actual or attempted criminal fraud or deceit upon the City, persons or subscribers; or

4. The cable operator fails to post a performance bond as required under the terms of this chapter or the franchise.

C. Such termination shall be by ordinance of the City Council duly adopted in accordance with the following procedures:

1. Prior to forfeiture or termination of the franchise, the City shall give written notice to the cable operator of its intent to revoke the franchise. The notice shall set forth the nature of the noncompliance. The cable operator shall have 30 days from such notice to object in writing and to state its reasons for such objection and provide any explanation. In the event the City has not received a timely and satisfactory response from the cable operator, it may then seek a termination of the franchise in accordance with this subsection.

2. The City Council shall conduct a public hearing to determine if revocation of the franchise is warranted. At least 30 days prior to the public hearing, the City Clerk shall issue a public hearing notice that shall establish the issue(s) to be addressed in the public hearing; provide the time, date and location of the hearing; provide that the City Council shall hear any persons interested therein; and provide that the cable operator shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, to be represented by counsel and to question witnesses. A verbatim transcript shall be made by a court reporter of such proceeding and the cost shall be paid by the cable operator. Within 30 days after the close of the hearing, the City Council shall issue a written decision regarding the revocation and termination of the franchise. The cable operator shall be bound by the City Council’s decision to revoke the franchise unless an appeal to a court of competent jurisdiction is filed within 30 days of the date of the City Council’s decision.

3. The cable operator and the City shall be entitled to such relief as the court may deem appropriate. (Ord. 2588 § 1, 2010).

12.50.0120 Effect of lawful termination.

A. Upon termination or forfeiture of a franchise, whether by action of City as provided above, or by passage of time, the City may, subject to applicable law:

1. Allow cable operator to continue providing service pursuant to the terms of its franchise agreement for such reasonable period as may be necessary to arrange for another cable system to provide service.

2. Require the former cable operator to remove all or a portion of its facilities and equipment at the former cable operator’s expense, subject to cable operator’s rights to abandon in place. In removing its cable system, cable operator shall restore affected property to comply with all applicable codes, to as good or better condition as existed prior to removal. If the former cable operator fails to do so within a reasonable period of time, the City may have the removal done at the former cable operator’s and/or surety’s expense.

3. Submit a written offer to purchase all or a portion of the cable system at an equitable price if termination or forfeiture is for cause or, if termination or forfeiture is not for cause, at fair market value, not including the value of the franchise.

4. Subsection (A)(3) of this section does not apply to an abandonment. If a cable system or any part thereof is abandoned by the cable operator, the City may require the cable operator to transfer title to all or some of the abandoned portions to it, as the City may direct, at no charge, free and clear of encumbrances, and the same will become the City’s property. The cable system, or a part thereof, will be deemed abandoned if:

a. The cable operator notifies the City of its intent to abandon; or

b. The cable operator willfully ceases providing cable service in accordance with its franchise; or

c. The cable operator does not provide cable service over the cable system for 6 months, and is not restoring service with all due diligence.

B. Notwithstanding the foregoing, the City may not, pursuant to this section, issue an order that violates 47 USC 541(b)(3)(c). (Ord. 2588 § 1, 2010).

12.50.0130 Effect of termination for street closure.

For any street or portion thereof used by the cable operator during the term of a franchise, the City shall provide the cable operator notice of any proposed street vacation or closure to allow them the opportunity to seek an easement to secure the right to continue their cable system in the vacated or closed street. (Ord. 2588 § 1, 2010).

12.50.0140 Effect of termination by expiration.

If any franchise terminates without lawful renewal in accordance with the Cable Act, the City may purchase cable operator’s cable system in accordance with federal law. (Ord. 2588 § 1, 2010).

12.50.0150 Continuity of service.

Upon termination by the City, or upon the lawful nonrenewal of any franchise granted hereunder, the cable operator shall cooperate with the City in maintaining continuity of service by continuing to operate the system at the City’s request, for a period determined by the City Council, not to exceed 1 year. During such time, the provisions of this chapter and the cable operator’s expiring franchise shall continue to govern in all respects. (Ord. 2588 § 1, 2010).

12.50.0160 Franchise renewal procedure.

Any franchise may be renewed for terms not to exceed 15 years, if, in the opinion of the City Council, it will serve the public interest, under the guidelines for franchise renewal set forth in the Cable Act. (Ord. 2588 § 1, 2010).

12.50.0170 Transfers, assignments.

A. Subject to Section 617 of the Cable Act, the cable system and related franchise shall not be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger or consolidation nor shall title thereto, either legal or equitable, or any right, interest or property therein pass to or vest in any person (hereinafter “transfer of the franchise”) without the prior written consent of the City, which consent shall not be unreasonably withheld.

B. The cable operator shall promptly notify the City of any actual or proposed change in, or transfer of, or acquisition by any other party of control of grantee. The word “control” as used herein is not limited to majority stock ownership but includes actual working control in whatever manner exercised. Every change, transfer or acquisition of control of the cable operator, except as noted herein, shall make this franchise subject to cancellation unless and until the City shall have consented thereto, which consent shall not be unreasonably withheld.

C. The parties to the transfer of the franchise or change of control shall make a written request to the City for its approval of the transfer of the franchise or change of control and shall furnish all information required by law. In reviewing a request related to a transfer of the franchise or change in control, the City may inquire into any matter reasonably related to the ability and willingness of the prospective transferee or controlling party to perform, in accordance with 47 CFR 76.502.

D. In reviewing a request for the transfer of the franchise or change of control, the City may inquire into the legal, technical and financial qualifications of the prospective controlling party or transferee, and the cable operator shall assist the City in so inquiring. The City may condition said transfer of the franchise or change of control upon such terms and conditions as it deems reasonably appropriate and as are consistent with federal law; provided, however, that any such terms and conditions so attached shall be related to the legal, technical and financial qualifications of the prospective controlling party or transferee. Additionally, such person shall effect changes as promptly as practicable in the operation of the cable system, if any changes are necessary to cure any violations or defaults presently in effect or ongoing.

E. The City shall act by ordinance or resolution on the request within 120 days of the request, provided it has received all information required by law, such as a completed FCC Form 394. Subject to the foregoing, if the City fails to render a final decision on the request within 120 days, such request shall be deemed granted unless the requesting party and the City agree to an extension of time.

F. Within 60 days of closing of any transfer of the franchise or change of control, if approved or deemed granted by the City, the cable operator shall file with the City a copy of the deed(s), agreement(s), lease(s) or other written instrument(s) evidencing such transfer of the franchise or change of control, certified and sworn to as correct by the cable operator and the transferee or new controlling entity. In the case of a transfer of the franchise or change of control, the transferee or the new controlling entity shall upon request by the City file its written acceptance agreeing to be bound by all of the provisions of this franchise, subject to applicable law.

G. Notwithstanding anything to the contrary in this section, the prior approval of the City shall not be required for any sale, assignment or transfer of the franchise or cable system to an affiliate; provided, that the proposed assignee or transferee agree in writing to comply with all of the provisions of the franchise, subject to applicable law. Further, the cable operator may pledge the assets of the cable system for the purpose of financing without the consent of the City; provided, that such pledge of assets shall not impair or mitigate the cable operator’s responsibilities and capabilities to meet all of its obligations under the provisions of this franchise. In the event of a change in control, the cable operator will continue to be bound by all provisions of the franchise.

H. The consent or approval of the City to any transfer of the franchise or change in control shall not constitute a waiver or release of any rights of the City. (Ord. 2588 § 1, 2010).

12.50.0180 Annexation.

A. Any franchise granted in accordance with this chapter is for the then-present territorial limits of the City and for any area added thereto by annexation during the term of such franchise, subject to applicable law.

B. In the event that a cable operator already provides cable communications services in the annexed area, the cable operator shall, within 12 months of receipt of a written notice of the effective date of an annexation or incorporation, update all records to assure proper payment of franchise fees to the City for the annexed franchise area. (Ord. 2588 § 1, 2010).

12.50.0190 General system capacity.

A. Cable systems shall consist of a state-of-the-art residential subscriber network capable of carrying 1-way video programming and 2-way video programming for interactive video services, and such programming as the cable operator may elect to provide, to residences throughout the franchise area.

B. Residential subscriber systems shall have a capacity of at least 750 MHz. Subject to the Cable Act and FCC regulations, programmed channels shall include all off-the-air network channels serving the franchise area, and all public, educational and government access channels required under this chapter and the franchise. (Ord. 2588 § 1, 2010).

12.50.0200 Standby power.

A cable operator shall install and maintain equipment capable of providing standby power for the headend, transportation, and all trunk amplifiers, as well as throughout any institutional network serving public, educational or government uses, for a minimum of 2 hours. Such equipment shall be so constructed as to automatically notify the cable operator when it is in operation and to automatically revert to the standby mode when normal power returns. (Ord. 2588 § 1, 2010).

12.50.0210 Service to public buildings.

Each cable operator shall provide, free of charge to the City, 1 outlet and basic service to each public building in the City, as identified in a franchise. For any public facility installations requiring a drop of more than 125 aerial feet, the City or other agency agrees to pay the incremental cost of such installation in excess of 125 aerial feet or a necessary distribution line extension of the cable system, including the cost of such excess labor and materials. The recipient of the service will secure any necessary right of entry. Such complimentary service shall not be offset against franchise fees, unless otherwise mutually agreed upon by grantee and City. (Ord. 2588 § 1, 2010).

12.50.0220 Government service – Public, educational, and government use of system.

Subject to applicable law, each cable operator shall provide for public, educational and government use of the cable system, through the use of access channels, the details of which provision shall be included in the cable operator’s franchise. (Ord. 2588 § 1, 2010).

12.50.0230 Technical standards.

A. Cable systems shall be installed and maintained in accordance with the technical standards and specifications established by the FCC, as periodically updated, and all applicable State and local laws and regulations.

B. All new construction, installation, grounding, and maintenance shall comply with the current versions of the National Electrical Safety Code, the National Electrical Code, and requirements of federal, State or local laws and regulations and accepted industry standards.

C. Systems shall be maintained in such a manner as to prevent signal leakage from the facilities in excess of the limits specified in applicable rules and regulations of the FCC. The cable operator may disconnect any person who, in the cable operator’s judgment, is contributing to a signal leakage problem. Upon written request from the City, the cable operator shall provide a copy of the Cumulative Leakage Index (CLI) report for the cable operator’s cable communications system serving the City franchise area.

D. Underground construction in streets shall be of such quality as to assure continuity of service without the necessity of frequent street or pavement cutting and shall contain a self-sealing device to ensure all such cables against leakage. (Ord. 2588 § 1, 2010).

12.50.0240 Inspection and performance tests.

A. The City shall have the right, upon reasonable notice, to make such inspections as it shall find necessary to ensure compliance with the technical standards and specifications established by the FCC, as periodically updated, and all applicable State and local laws and regulations.

B. The City shall advise the cable operator a month prior to the cable operator’s standard scheduled date of FCC proof of performance tests that the City is requesting the presence of an observer. The cable operator shall maintain test points as required by federal law and shall allow the City to have access to those test points upon reasonable notice and at intervals not more frequently than required by federal law, except for good and substantial cause shown.

C. The City may require additional reasonable proof of performance tests not more often than annually and within 90 days of the completion of the construction of a new system or the upgrading or reconstruction or repair of an existing system. In the event that the City requires proof of performance testing under this section, the cable operator shall conduct such tests under the standards set forth in Part 76 of the FCC’s rules and regulations. The City may observe the testing performed under this section and may provide a list of locations and/or areas where the tests specified are to be performed. To the extent provided in the franchise, the City shall be entitled to recover from the cable operator its costs associated with defining tests and procedures, observation of said tests, and evaluation of test findings. (Ord. 2588 § 1, 2010).

12.50.0250 Records and reports.

To facilitate timely and effective enforcement of this chapter and any franchise and to develop a record for purposes of determining whether to renew any franchise, the City shall require reports as specified in this section.

A. Quarterly. Unless otherwise set forth in a franchise agreement, the cable operator shall submit reports to the City quarterly. The quarterly reports shall be submitted according to the following schedule: January to March reports due May 15th; April to June reports due August 15th; July to September reports due November 15th; and October to December reports due February 15th of each year. The report shall include, but not be limited to:

1. Telephone reports indicating the number of calls received, number of calls abandoned, percentage of calls receiving a busy signal, average length of time each caller waits before speaking directly to a customer service representative, and number of calls answered by a customer service representative within 30 seconds;

2. The number of total standard installations performed, the number of standard installations performed within 7 days, the number of service interruptions reported, the number of service interruptions responded to within 24 hours, the number of other service problems reported, the number of other service problems responded to within 24 hours, and all other information necessary to monitor the cable operator’s compliance with the subscriber standards of this chapter;

3. The City may change the filing dates for reports upon reasonable request of a cable operator.

B. Annually. In addition to the above, unless otherwise set forth in a franchise agreement, the cable operator shall file the following information with the quarterly report due May 15th of each year:

1. An accurate accounting statement of all gross revenue amounts for the franchise area for the preceding year ending December 31st. Such statement shall be verified by an officer of the cable operator and shall certify that the information provided therein is complete and accurate.

2. Operating statistics for the preceding year ending December 31st for the franchise area, including aerial and underground plant miles, homes passed, basic subscribers, pay or premium units by pay service, and digital subscribers.

3. A current copy of the subscriber service agreement; a current list of all rates, charges and available services; a current channel list; a copy of all the cable operator’s published rules and regulations applicable to subscribers; and a summary of the cable operator’s hours of operation.

4. An annual summary of complaints by subscribers and users, identifying the number and nature of complaints and their disposition.

5. A copy of the final report on each proof of performance test of each technical parameter defined in Part 76 of the rules and regulations of the FCC, as said rules may be modified from time to time.

6. Any additional information related to the operation of the cable system as reasonably requested by the City based on demonstrated legitimate need.

In addition to any record or report that may be required under a specific franchise, the City shall have access to, and the right to inspect, any books and records of a cable operator and its affiliates which are reasonably necessary to monitor and enforce the cable operator’s compliance with the provisions of a franchise at the cable operator’s business office, during normal business hours, and without unreasonably interfering with the cable operator’s business operations. The City may, in writing, request copies of any such records or books that are not identified as proprietary or confidential, and the cable operator shall provide such copies within 30 days of the transmittal of such request. (Ord. 2588 § 1, 2010).

12.50.0260 Failure to report.

A. The refusal, failure, or neglect of a cable operator to file any of the reports, perform the tests or to provide access to books and records or to its system as required under this chapter where such refusal, failure or neglect is not remedied following due notice and an opportunity to cure; or the repeated refusal, failure or neglect to comply, even if individual failures are corrected after notice and opportunity to cure; or the inclusion of any materially false or misleading statement or representation in any report shall be deemed a material breach of the franchise.

B. For purposes of this section, unless otherwise set forth in a franchise agreement, notice is sufficient if the City notifies the cable operator in writing that the cable operator has failed to provide a requested report, perform a test, or provide access to books and records or to its plant. A cable operator will be deemed to have failed to cure unless it provides the requested reports, performs the tests or provides the access to books and records and to its plant as provided in the franchise. (Ord. 2588 § 1, 2010).

12.50.0270 Construction timetable.

Any cable operator seeking a franchise calling for the construction of a new system or the upgrade or rebuild of an existing system shall include a construction timetable within its franchise and shall adhere to the schedule. (Ord. 2588 § 1, 2010).

12.50.0280 Specialized services notification.

Each cable operator shall notify the City 30 days prior to the commencement of any new service, including any specialized service which may be available only to a certain class or certain classes of subscribers. (Ord. 2588 § 1, 2010).

12.50.0290 Rates.

A. The City reserves the right to regulate rates and charges imposed on subscribers by a cable operator, to the full extent permitted under applicable federal law. The City further reserves the right to establish, to the full extent permitted by law, regulatory policies, procedures, and penalties related to rate regulation.

B. CTC Review of Rates. The CTC shall have the responsibility of developing rate regulation policies and procedures consistent with applicable law. The CTC shall also be responsible for implementing such policies and procedures and making recommendations to the City Council in matters regarding rate regulation.

C. Schedule of Rates. Upon request from the City, a cable operator shall annually file with the City a full schedule of all cable service rates and all charges whatsoever made in connection with its cable system.

D. Uniformity of Rates. Rates shall be the same for the same or similar classes of subscribers throughout the franchise area. However, nothing in this chapter shall prohibit a cable operator from offering promotional discounts or discounted rates for customers who are low income (according to applicable federal guidelines) and either permanently disabled or 65 years of age or older and who are the legal owners or tenants of the dwelling unit. Nothing in this section shall prohibit a cable operator from adjusting its prices to meet competition, in accordance with federal law and regulation.

E. The cable operator may pass through to its subscribers such external costs as are allowed under the Act and regulations promulgated thereunder. However, the cable operator shall not proceed with any franchise-required activity where the cost of such may be passed through to subscribers externally unless it has first provided written notice to the City. Such notice shall include an analysis (description of service and calculation methodology per subscriber) of the financial impact of the activity to subscribers. The City, upon receiving such notice, shall consider waiving the franchise requirement, and, if so waived, the franchise shall be deemed amended. If the City has not waived the requirement, or otherwise responded to the notice within 60 days, the cable operator shall proceed with the activity and shall pass through the external costs in accordance with federal law. (Ord. 2588 § 1, 2010).

12.50.0300 Franchise fees.

A. As compensation for a franchise granted pursuant to this chapter, and in consideration of permission to use and occupy the streets and public ways of the City for the construction, operation, maintenance and/or reconstruction of a cable system within the City, and in consideration of the regulatory burden imposed on the City by the cable operator’s cable system, a cable operator shall pay to the City a franchise fee in the amount equal to 5 percent of its gross revenues.

B. The cable operator’s franchise fee payments to the City shall be computed quarterly for the preceding quarter. Each payment shall be due and payable no later than 30 days after the end of the preceding quarter, after which time interest will accrue. The quarters shall end respectively on the last day of March, June, September and December. In the event any payment due the City is not timely made, grantee shall pay, in addition to the amount due, interest at a rate of 12 percent per annum of the amount due, from the payment due date until the City receives the payment.

C. Each payment shall be accompanied by a written report to the City, verified by an authorized representative of the cable operator, containing an accurate statement in summarized form which includes a breakdown by category of the cable operator’s gross revenues and the computation of the payment amount.

D. The parties acknowledge that, at present, applicable federal law limits the City to collecting a franchise fee of 5 percent of gross revenues in a 12-month period. In the event that at any time throughout the term of this franchise, the City is authorized to collect an amount in excess of or less than 5 percent of gross revenues, then the cable franchises shall be amended by the parties consistent with such change.

E. Payment of the franchise fees under this franchise shall not exempt the cable operator from the payment of any other license fee, permit fee, tax or charge on the business, occupation, property or income of the cable operator that may be lawfully imposed by the City.

F. The cable operator agrees to meet with a representative of the City, upon request, to review the cable operator’s methodology of record-keeping, financial reporting, the computing of franchise fee obligations and other procedures, the understanding of which the City deems necessary for reviewing reports and records that are relevant to the enforcement of this chapter.

G. Franchise Fee Waiver. No acceptance of any payment shall be construed as an agreement by the City that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the City may have for further or additional sums payable under the provisions of this chapter. All amounts paid shall be subject to audit and recomputation by the City under the terms of this section. In the event that recomputation results in additional fees to be paid to the City, such amount shall be subject to a 12 percent interest charge from the date the payment was due until the time of actual payment.

H. Upon 30 days’ prior written notice, but not more often than once each calendar year, the City shall have the right to inspect the cable operator’s financial records necessary to enforce the provisions of the franchise and to calculate any amounts determined to be payable pursuant to the franchise. Provided the cable operator cooperates in making all relevant records available upon request, the City will in good faith attempt to complete each audit within 6 months, and the audit period shall not be any greater than the previous 3 years, unless the City has information relating to previous years beyond the 3 years which, in its reasonable judgment, raises doubt as to the accuracy of payments made under the current or previous franchises, in which case an additional 3 years may be audited. If the audit shows that there has been an underpayment of franchise fees by 5 or more in a calendar year, then the cable operator shall pay the cost of the audit, such amount not to exceed $15,000. (Ord. 2588 § 1, 2010).

12.50.0310 Nondiscrimination requirements.

A. A cable operator shall not deny service or discriminate against any persons on the basis of race, color, religion, national origin, or sex. A cable operator shall strictly adhere to the equal employment opportunity requirements of the FCC, as expressed in applicable federal statutes or regulations. A cable operator shall comply at all times with all other applicable federal, State, and City laws, relating to nondiscrimination.

B. A cable operator shall not in making available cable services make or grant preference or advantages to any person, or to any user or potential user of the cable system (except as provided in this chapter). This provision is intended to prevent discrimination among subscribers as prohibited under the Cable Act and FCC regulations and shall not be deemed to prohibit promotional campaigns to stimulate subscriptions to the system, the offering of commercial or bulk discounted rates, or other legitimate uses thereof. (Ord. 2588 § 1, 2010).

12.50.0320 Consumer protection and customer service standards.

All cable operators shall comply with applicable FCC customer service standards, including 47 CFR 76.309 as said section presently exists and may be amended from time to time. The City reserves the right to adopt and enforce additional, different or more stringent standards if the City determines there is a need to do so. In particular, the following standards shall apply:

A. Local Office. Each cable operator shall maintain a business office in the greater Seattle area which shall be open during all usual business hours and have a publicly listed telephone with sufficient toll-free lines and call-handling equipment to ensure that FCC customer service standards are met. The phone system shall be so operated that complaints and requests for repairs or adjustments may be received on a 24-hour basis. The telephone number or numbers required under this section shall be printed prominently in all correspondence and bills sent to subscribers within the City.

B. Local Service. A cable operator shall complete all standard installations within 7 business days after an order has been placed, unless otherwise requested by the potential subscriber. “Standard installations” shall include those that are located within 125 aerial feet of the cable operator’s distribution system. This standard must be met 95 percent of the time under normal operating conditions as measured on a quarterly basis. If the potential subscriber requests a nonstandard installation, or the cable operator determines that a nonstandard installation is required, the cable operator shall provide the potential subscriber in advance with a total installation cost estimate and an estimated date of completion. If a subscriber calls to report poor signal quality or interruptions attributable to the cable operator’s equipment, the cable operator shall begin working on the problem no later than the next day following the subscriber’s call; provided, that the subscriber is available or at such later time as is convenient for the subscriber. If an appointment is necessary, the subscriber may choose a 4-hour block of time during normal business hours or such other time that is convenient for the subscriber.

C. Consumer Complaints.

1. The cable operator shall establish written procedures for receiving, acting upon, and resolving complaints without intervention by the City (except where necessary) and shall publicize such procedures through printed documents at the cable operator’s sole expense.

2. Said written procedures shall describe a simple process by which any subscriber may submit a complaint by telephone or in writing to the cable operator regarding a disputed matter, or an alleged violation of any provision of these standards or any terms or conditions of the subscriber’s contract with the cable operator, or reasonable business practices.

3. The cable operator’s complaint procedures shall be filed with the City. (Ord. 2588 § 1, 2010).

12.50.0330 Performance bond, liquidated damages and enforcement.

A. Performance Bond. As security for a cable operator’s faithful performance hereunder, the cable operator shall, within 30 days of the effective date of its franchise, deliver to the City, and shall maintain continuously in effect, a good and sufficient bond in the sum of $50,000 executed by a surety company authorized and qualified to do business in the State of Washington as a surety, or by other sureties acceptable to the City, and in a form acceptable to the City; which bond or other surety shall be for the purpose of guaranteeing and shall stipulate that the cable operator shall strictly comply with each and every condition and covenant of its franchise and this chapter.

1. Cable operator may be required to obtain additional security, such as generally applicable construction bonds, in accordance with the City’s permitting requirements.

2. Cable operator shall pay all premiums or costs associated with maintaining the performance bond and shall keep the performance bond in full force and effect during the term of the franchise.

B. Liquidated Damages. Because a cable operator’s failure to comply with the provisions of this chapter and its franchise will result in damage to the City and because it will be impractical to determine the actual amount of such damages, the City and any cable operator shall agree upon and specify in a franchise certain amounts which represent both parties’ best estimate of the damages. The City shall calculate the amount of any damages as specified in a franchise. The liquidated damages provided in a franchise shall be the exclusive monetary remedy for the named breaches. Neither the right to liquidated damages nor the payment of liquidated damages shall bar or otherwise limit the right of the City in a proper case to:

1. Obtain judicial enforcement of a cable operator’s obligations by means of specific performance, injunctive relief, mandamus or other remedies at law or in equity;

2. Consider any substantial violation or breach as grounds for forfeiture and termination of a franchise pursuant to this chapter; and

3. Consider any violation or breach as grounds for nonrenewal or nonextension of a franchise or issuance of a new franchise.

C. Force Majeure. A cable operator will not be held in violation under, or in noncompliance with, the provisions of its franchise or this chapter, nor suffer any enforcement relating thereto, where such noncompliance or alleged violation occurred or was caused by circumstances reasonably beyond the ability of the cable operator to control. This includes war or riots, civil disturbances, floods or other natural catastrophes, labor stoppages or slowdowns not attributable to cable operator’s employees, or power outages exceeding back-up power supplies, and work delays caused by waiting for utility providers to service or monitor their utility poles to which the cable operator’s cable system is attached as well as verifiable unavailability of materials and/or qualified labor to perform the work necessary. (Ord. 2588 § 1, 2010).

12.50.0340 Acceptance.

No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the grant has been unconditionally accepted by the cable operator. Within 60 days after the effective date of the ordinance or other City action granting a franchise, or within such extended period of time as may be authorized by the City, the cable operator shall file written acceptance of the franchise in a form satisfactory to the City Attorney, together with the bonds, insurance certificate, applicable application fee, and other surety requirement provided in their franchise. (Ord. 2588 § 1, 2010).

12.50.0350 Effect of franchise approval.

No franchise granted under this chapter shall be deemed to be an exclusive franchise and shall not in any manner prevent the City from constructing, operating, and/or maintaining a cable system or facilities of its own or granting other or further franchises to do so in, along, over, through, under, below or across any of the public ways, streets, avenues, and other public land and properties of every type and description. No franchise granted hereunder shall prevent or prohibit the City from using any of said roads, rights-of-way, streets or other public properties or affect the City’s jurisdiction over them. The City reserves full power to make all necessary changes, relocations, repairs, maintenance and improvement of all public ways and thoroughfares and other public properties of every type. In accepting any franchise, the cable operator acknowledges that its rights are subject to the police powers of the City to adopt and enforce ordinances necessary to protect the health, safety and welfare of the public, and the cable operator agrees to comply with all applicable laws and ordinances enacted by the City pursuant to such power so long as the same do not unduly discriminate against any cable operator. (Ord. 2588 § 1, 2010).

12.50.0360 Rules and regulations by the City.

A cable operator, through its franchise, is granted the right to operate its cable system using the rights-of-way within the franchise area. Such use must be in compliance with all lawful and applicable Issaquah Municipal Code provisions in effect on the date the cable operator accepts its franchise. In the event of a conflict between the Issaquah Municipal Code and a franchise, the franchise shall control subject to the limitation of the City’s exercise of the police powers. Subject to federal and State preemption, the material terms and conditions contained in a franchise may not be unilaterally altered by the City through subsequent amendments to any ordinance, regulation, resolution or other enactment of the City, except within the lawful exercise of the City’s police power. A cable operator has the right to challenge any City ordinance or regulation that conflicts with its rights under its franchise. (Ord. 2588 § 1, 2010).

12.50.0370 Location of facilities.

All cable system facilities shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in a franchise agreement:

A. In all new developments and subdivisions, cable system facilities shall be placed underground.

B. A cable operator shall install its cable facilities within its existing underground duct or conduit whenever excess capacity exists within such facility.

C. A cable operator will construct, maintain and install overhead facilities on pole attachments to existing utility poles.

D. Whenever all existing electric utilities and telecommunication facilities are to be relocated underground within a public way of the City, a cable operator shall also relocate its facilities underground. (Ord. 2588 § 1, 2010).

12.50.0380 Compliance with 1 call locator service.

All cable operators shall, before commencing any construction in the public ways, comply with all regulations of Chapter 19.122 RCW, the 1 call locator service. (Ord. 2588 § 1, 2010).

12.50.0390 Interference with the public ways.

No cable operator may locate or maintain its cable facilities so as to unreasonably interfere with the use of the public ways by the City, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities shall be moved by the cable operator, at the cable operator’s cost, temporarily or permanently, as determined by the Public Works Director. (Ord. 2588 § 1, 2010).

12.50.0400 Damage to property.

No cable operator nor any person acting on a cable operator’s behalf shall take any action or permit any action to be done which may impair or damage any City property, public ways of the City, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. (Ord. 2588 § 1, 2010).

12.50.0410 Facilities maps.

Each cable operator, upon request from the City, shall provide a route map that depicts the general location of the cable facilities placed in the public way. The route map shall identify the cable facilities as aerial or underground and is not required to depict cable types, number of cables, electronic equipment, and service lines to individual subscribers. The cable operator shall also provide, if requested, an electronic format of the aerial/underground facilities in relation to the public way centerline reference to allow the City to add this information to the City’s GIS program. (Ord. 2588 § 1, 2010).

12.50.0420 Repair and emergency work.

In the event of an unexpected repair or emergency, a cable operator may commence such repair and emergency response work as required under the circumstances, provided the cable operator shall notify the City as promptly as possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. (Ord. 2588 § 1, 2010).

12.50.0430 Maintenance of facilities.

Each cable operator shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, State and local requirements. (Ord. 2588 § 1, 2010).

12.50.0440 Relocation or removal of facilities.

Within 30 days following written notice from the City, a cable operator shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any cable facilities within the public ways whenever the safety, health or welfare of the public requires such change. In the case of relocation projects where the City hires and designates an independent contractor to accommodate and coordinate the conversion of overhead utilities within a City capital improvement project, if the cable operator decides to participate in the joint trench opportunity, then the cable operator shall pay to the City the cable operator’s portion of the traffic control and trench costs, including excavation and other associated costs, trench bedding, and backfill commensurate with the cable operator’s proportionate share of trench usage. However, notwithstanding anything to the contrary set forth herein, if bids from the City’s contractor for placement of the cable operator’s conduits and vaults/pedestals in the supplied joint trench, in the reasonable estimation of the cable operator, are not acceptable, the cable operator shall have the option to utilize contractor(s) of its choice to complete the required work. The City’s contractor shall coordinate with the cable operator’s contractor(s) to provide reasonable notice and time to complete the placement of the cable operator’s facilities in the supplied joint trench. (Ord. 2588 § 1, 2010).

12.50.0450 Relocation for other persons.

If any removal, replacement, modification or disconnection of a cable system is required to accommodate the construction, operation or repair of the facilities or equipment of another City franchise holder(s), a cable operator shall, after at least 30 days’ advance written notice, take action to effect the necessary changes requested by the responsible entity, as long as the other franchise holder(s) pay for the impacted cable operator’s time and material costs associated with the project and the impacted cable operator is issued a permit for such work by the City.

A cable operator shall, upon reasonable prior written request of any subscriber, relocate its aerial distribution cable facilities underground, as long as the subscriber pays for the cable operator’s time and material costs associated with the project and the cable operator is issued a permit for such work by the City.

In the event an underground conversion of cable facilities is required as part of the street improvement condition(s) of a new land use development, not associated with a City-designated capital improvement project, a franchise and this chapter shall in no way limit a cable operator’s right to recoup all time and material costs associated with the underground conversion of the cable system from the person responsible for the project.

At the request of any person holding a valid permit and upon reasonable advance notice, a cable operator shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The expense of such temporary changes must be paid by the permit holder. (Ord. 2588 § 1, 2010).

12.50.0460 Removal of unauthorized facilities.

Within 30 days following written notice from the City, any cable operator or other person that owns, controls or maintains any unauthorized cable system, facility or related appurtenances within the public ways of the City shall, at its own expense, remove such facilities or appurtenances from the public ways of the City. A cable system or facility is unauthorized and subject to removal in the following circumstances:

A. Upon lawful termination of the cable operator’s franchise.

B. Upon abandonment of a facility within the public ways of the City. Any property of a cable operator shall be deemed abandoned if left in place 90 days after lawful termination of a franchise.

C. If the cable system or facility was constructed or installed without the prior grant of a franchise.

D. If the system or facility was constructed or installed without the prior issuance of a required construction permit.

Provided, however, that the City may, in its sole discretion, allow a cable operator, or other such persons who may own, control, or maintain cable system facilities within the public ways of the City to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the City. Any plan for abandonment or removal of a cable operator’s facilities must be first approved by the Public Works Director, and all necessary construction permits must be obtained prior to such work. Upon permanent abandonment of the property of such persons in place, the property shall become that of the City, and such persons shall submit to the Public Works Director an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property. The provisions of this section shall survive the revocation or termination of a franchise granted under this chapter. (Ord. 2588 § 1, 2010).

12.50.0470 Emergency removal or relocation of facilities.

During emergencies, except those involving imminent danger to the public health, safety or welfare, the City shall provide notice to a cable operator, at a designated emergency response contact number, to allow the cable operator the opportunity to respond and rectify the problem without disrupting cable service. If, after providing notice, there is no immediate response by the cable operator, the City may remove or relocate the cable operator’s cable system facilities. (Ord. 2588 § 1, 2010).

12.50.0480 Damage to facilities.

Unless directly and proximately caused by the willful, intentional or malicious acts by the City or the City’s agent, the City shall not be liable for any damage to or loss of any cable system upon City property or within the public ways of the City as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on such City property or within the public ways by or on behalf of the City. (Ord. 2588 § 1, 2010).

12.50.0490 Restoration of public ways, other ways and City property.

A. When a cable operator, or any person acting on its behalf, does any work in or affecting any public ways, other ways or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property in accordance with applicable City standards.

B. If weather or other conditions do not permit the complete restoration required by this section, the cable operator shall temporarily restore the affected ways or property. Such temporary restoration shall be at the cable operator’s sole expense and the cable operator shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.

C. A cable operator or other person acting on its behalf shall use suitable barricades, flags, flaggers, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such ways or property. (Ord. 2588 § 1, 2010).

12.50.0500 Insurance.

Unless otherwise provided in a franchise, each cable operator shall secure and maintain the following liability insurance policies insuring both the cable operator and the City against claims for injuries to persons, death or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the cable operator:

A. Comprehensive general liability insurance, written on an occurrence basis, with limits not less than:

1. $2,000,000 for bodily injury or death to each person;

2. $2,000,000 for property damage resulting from any 1 accident; and

3. $1,000,000 for all other types of liability.

B. Automobile liability for owned, nonowned and hired vehicles with a limit of $1,000,000 for each person and $2,000,000 for each accident.

C. Workers’ compensation insurance limits in accordance with State law requirements.

D. Excess or umbrella liability: $5,000,000 each occurrence and $5,000,000 policy limit.

E. The liability insurance policies required by this section shall be maintained by the cable operator throughout the term of the franchise. The cable operator shall provide an insurance certificate, together with an endorsement naming the City as additional insured. Payment of deductibles and self-insured retentions shall be the sole responsibility of the cable operator. The insurance certificate required by this section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. The cable operator’s insurance shall be primary insurance as respects the City. Any insurance maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the cable operator’s insurance and shall not contribute with it.

F. In addition to the coverage requirements set forth in this section, each such insurance certificate shall contain the following endorsement:

It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 60 days after receipt by the City, by registered mail, of a written notice addressed to the City of such intent to cancel or not to renew.

G. Within 30 days after receipt by the City of said notice, and in no event later than 15 days prior to said cancellation or intent not to renew, the cable operator shall obtain and furnish to the City replacement insurance certificates meeting the requirements of this section. (Ord. 2588 § 1, 2010).

12.50.0510 General indemnification.

A. A cable operator shall indemnify, defend and hold harmless the City, City Council, and any of the City’s officers, elected officials, boards, commissions, agents and employees acting in an official capacity from any action, claim, damage, loss, liability, cost or expense, including court costs and attorneys’ fees and expenses, arising from the death of or injury to any person, casualty or accident to equipment or property, and all other damages arising out of, or by reason of, any construction, excavation, operation, maintenance, repair, reconstruction, upgrade, rebuild, upkeep or removal of the cable system, or any act done pursuant to the terms of a franchise, by or for the cable operator, its agents or employees, or by reason of any neglect or omission of the cable operator, its agents or employees, except for injuries and damages caused by the sole negligence of the City.

B. The City shall give the cable operator written notice of any claim or of the commencement of any action, suit or other proceeding covered by the indemnity in this section. If a claim or action arises, the City or any other indemnified party shall then tender the defense of the claim to the cable operator, which defense shall be at the cable operator’s expense. The City may participate in the defense of a claim and, in any event, the cable operator may not agree to any settlement of claims financially affecting the City without the City’s prior written approval, which shall not be unreasonably withheld.

C. The fact that the cable operator carries out any activities under its franchise through independent contractors shall not constitute an avoidance of or defense to the cable operator’s duties of defense and indemnification under this section.

D. If separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between the City and the counsel selected by the cable operator to represent the City, the cable operator shall select additional counsel with no conflict with the City.

E. Cable operator shall indemnify and hold harmless the City from any workers’ compensation claims to which cable operator may become subject during the term of a franchise. It is further specifically and expressly understood that cable operator waives its immunity under RCW Title 51; provided, however, the foregoing waiver shall not in any way preclude cable operator from raising such immunity as a defense against any claim brought against cable operator by any of its employees or other third party. This waiver shall be mutually negotiated by the parties and incorporated into the franchise.

F. Inspection or acceptance by the City of any work performed by cable operator at the time of completion of construction shall not be grounds for avoidance of any indemnification obligations. (Ord. 2588 § 1, 2010).

12.50.0520 Notice and duty to cure.

A. If the City believes that a cable operator has failed to perform any nonmaterial obligation under its franchise, the City shall notify the cable operator in writing, stating with reasonable specificity the nature of the alleged default. The cable operator shall have 30 days from the receipt of such notice to:

1. Respond to the City, contesting the City’s assertion that a default has occurred, and request a meeting in accordance with subsection B of this section; or

2. Cure the default; or

3. Notify the City that the cable operator cannot cure the default within 30 days, because of the nature of the default. In the event the default cannot be cured within 30 days, the cable operator shall promptly take all reasonable steps to cure the default and notify the City in writing and in detail as to the exact steps that will be taken and the projected completion date. In such case, the City may set a meeting in accordance with subsection B of this section to determine whether additional time beyond the 30 days specified above is indeed needed, and whether the cable operator’s proposed completion schedule and steps are reasonable.

B. If the cable operator does not cure the alleged default within the cure period stated above, or denies the default and requests a meeting in accordance with subsection (A)(1) of this section, or the City orders a meeting in accordance with subsection (A)(3) of this section, the City shall set a meeting to investigate said issues and the existence of the alleged default. The City shall notify the cable operator of the meeting in writing and such meeting shall take place no less than 15 business days after the cable operator’s receipt of notice of the meeting. At the meeting, cable operator shall be provided an opportunity to be heard and to present evidence in its defense.

C. If, after the meeting, the City determines that a default exists, the cable operator and the City may agree on a plan and schedule to cure the default. Absent such agreement, the City shall order the cable operator to correct or remedy the default or breach within 30 days or within such other reasonable time frame beyond 30 days as the City shall determine. In the event cable operator does not cure the default within such time to the City’s reasonable satisfaction, the City may:

1. Recommend the termination of the cable operator’s franchise pursuant to the termination procedures in this chapter; or

2. Pursue any other legal or equitable remedy available under the franchise and applicable law.

D. The determination as to whether a nonmaterial violation of this franchise has occurred shall be within the discretion of the City. Any such determination by the City must be in writing and must be based upon findings that include the cable operator’s submissions; provided, that any such determination may be subject to appeal to the City Council or review by a court of competent jurisdiction under applicable law. (Ord. 2588 § 1, 2010).

12.50.0530 Notice of entry on private property.

For the installation of pedestals or other major construction or installation projects, the cable operator shall notify by mail or door hanger the adjacent property owners/legal tenants in advance of the public way work. In the case of an emergency, the cable operator shall attempt to contact the property owner or legal tenant in person, and in the event personal contact is not made, the cable operator shall leave a door hanger notice. (Ord. 2588 § 1, 2010).

12.50.0540 Safety requirements.

A cable operator shall comply with all applicable City codes, including, without limitation, construction codes, building codes, the fire code and zoning codes and regulations. A cable operator shall comply with all applicable federal, State and City safety requirements, rules, regulations, laws and practices. By way of illustration and not limitation, a cable operator shall comply with the National Electric Code, National Electrical Safety Code, and Occupational Safety and Health Administration (OSHA) Standards. (Ord. 2588 § 1, 2010).

12.50.0550 Authority to trim trees.

Each cable operator shall have the authority to trim trees upon and overhanging public ways, streets, alleys, sidewalks, and other public places of the City, so as to prevent the branches of such trees from coming in contact with the wires and cables of the cable operator. All trimming is to be done after the explicit prior written notification and approval of the City and at the expense of the cable operator. The cable operator may contract for such services; however, any firm or individual so retained shall receive City approval prior to commencing such trimming. (Ord. 2588 § 1, 2010).

12.50.0560 City rights.

If a cable operator is constructing underground conduit for its own use, the City may require the cable operator to construct excess conduit capacity in the public ways; provided, that the City enters into a contract with the cable operator consistent with RCW 80.36.150. The contract rates to be charged should recover the incremental costs of the cable operator (calculated as the difference between what the cable operator would have paid for the construction of its conduit and the additional cost only of construction of the excess conduit). The City shall not require that the additional conduit space be connected to the access structure and vaults of the cable operator. (Ord. 2588 § 1, 2010).

12.50.0570 No waiver of terms.

A failure of the City on 1 or more occasions to insist upon or to seek compliance with any term or condition of this chapter shall not excuse a cable operator from complying with said term or condition on any other occasion. A failure of either the City or cable operator on 1 or more occasions to insist upon or to seek compliance with any term or condition of a franchise shall not excuse the other party from complying with said term or condition on any other occasion. (Ord. 2588 § 1, 2010).

12.50.0580 Severability.

If any provision of this chapter is determined by any court of competent jurisdiction, or by any federal or State agency having jurisdiction over its subject matter, to be invalid and in conflict with any federal or State law or regulation now or hereafter in effect, or is determined by that court or agency to require modification in order to conform to the requirements of that law or regulation, then that part of this chapter will be ineffective, and such determination will not affect the validity and enforceability of any other provisions. If that federal or State law or regulation is subsequently repealed or amended so that the provision of this chapter determined to be invalid or subject to modification is no longer in conflict with that law or regulation, that provision will again become effective and will thereafter be binding on any affected cable operator. (Ord. 2588 § 1, 2010).