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HomeMy Public PortalAboutOrd. 414 - Changing Zone Classificationf ORDINANCE NO. T/4/ AN ORDINANCE RELATING TO CABLE TELEVISION; PROVIDING DEFINITIONS; GRANTING A TWENTY (20) YEAR NON-EXCLUSIVE FRANCHISE TO CONSTRUCT, OWN, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM WITHIN THE CITY OF McCALL, IDAHO; PROVIDING CONDITIONS ACCOMPANYING THE GRANTING OF SAID FRANCHISE; PROVIDING RATES, RULES AND REGULATIONS THEREFOR; PROVIDING FOR CANCELLATION OF SUCH FRANCHISE; MAKING IT UNLAWFUL TO INJURE ANY PROPERTY USED IN CONNECTION THEREWITH AND MAKING IT UNLAWFUL TO MAKE OR ATTEMPT TO MAKE UNAUTHORIZED CONNECTION TO SUCH CABLE TELEVISION SYSTEM; PROVIDING FOR SEPARABILITY AND PROVIDING FOR DUP.ATION AND ACCEPTANCE OF THIS ORDINANCE. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF McCALL, IDAHO, AS FOLLOWS: Section 1. Definitions: For the purposes of this Ordinance, the following terms, phrases, words, and their derivation shall have meaning given herein. When not incon- sistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and the words in the singular number include the plural number. The;word "shall" is always mandatory and not merely directory. a. "City" is the City of McCall, Idaho. b. "CABLE TELEVISION SYSTEM", hereinafter referred to as "CATV System" or "system", means a system of coaxial cables or other electrical conductors and transmission equipment used or to be used primarily to receive television or radio signals directly or indirectly off -the -air and other related services and transmit them to subscribers for a fee. c. "Company" or "Grantee" shall be Cablevision of McCall, Inc., or anyone who succeeds it in accordance with the provisions of this Ordinance. d. "Person" is any person, firm, partnership, association, corporation, company, or organization of any kind. e. "FCC" is the Federal Communications Commission or its successor agency. f. "Gross Subscriber Revenues" shall mean the grantee's annual gross subscriber revenues derived from monthly Cable Television Service in the City. g. "Street" shall mean the surface of, and the space above and below, any public street, road, highway, freeway, right-of-way, easement, alley, court, sidegalk, parkway, drive or other public property, hereafter existing as such within the City. h. "Subscriber" shall mean any person or entity receiving for any purpose the cable television services of the Company herein. 1 i. "Basic Service" shall mean the simultaneous delivery by the company to television receivers (or any other suitable type of audio -video communication receivers), of all sub- scribers and to all locations in the City, of all signals of over -the -air television broadcasts required to be carried on the cable television system by the FCC, and Additional Service at the option of the Company. j. "Proposal" shall mean the Company's document dated June 3, 1980, describing the system it proposes to build and operate, a copy of which proposal has been filed with the City Clerk. Section 2. Grant of Non -Exclusive Franchise: The City hereby grants to the Company the non-exclusive franchise, right, privilege, authority and easement for a period of twenty (20) years from the effective date hereof, renewable for an additional twenty (20) year period as provided herein, unless sooner terminated pursuant to the provisions of this Ordinance, to construct, erect, suspend, install, renew, maintain, and otherwise own and operate throughout the City, in, upon, along, across, above, over and under the streets, alleys, easements, public ways and public places as now laid out or dedicated, and all extensions thereof, and additions thereto, in the City a system of poles, wires, cables, underground conduits, ducts, trenches, conductors, amplifying equipment, manholes, fittings, and any and all other fixtures, appliances and appurtenances necessary for the installation, ownership, maintenance and operation in the City of a cable television (CATV) system to serve residents and inhabitants of the City. This franchise shall in no way be construed to prohibit extensions of the City system for the purpose of distribution of services to inhabitants outside the limits of the City. Without limiting the generality of the foregoing, this franchise shall and does hereby include the right to make connections to subscribers, the right to repair, replace and enlarge and extend said lines, equipment and connections. Section 3. Compliance With Applicable Laws And Ordinances: The Company shall at all times during the life of this Ordinance be subject to all lawful exercise of the police power by the City and to such reasonable regulation by the City as the City shall thereunder provide. The Company shall comply with all laws, statutes, codes, ordinances, rules, or regulations applicable to its business, including those of the Federal Communications Commission with special reference to Section 76.31 thereof. Section 4. Effective Date and Term: This Ordinance shall take effect and be in full force after final passage and publication hereof, as provided by law, and said Ordinance shall continue in full force and effect for a term of twenty (20) years upon the terms and conditions set forth herein. An option for renewal, for an additional twenty (20) year period under the terms and conditions mutually agreeable to both parties, may be exercised by the Company by giving the City notice in writing of its election to exercise this option,. which notice shall be given not less than one (1) year nor more than five (5) years prior to the expiration of the term of this Ordinance. Renewal shall not be unreasonably denied, and may be granted by the City after consideration of the Company's qualifications and after full public proceedings affording due process, within six months of the Company's written notice. This Ordinance, when accepted by the Company, shall be and hecome a valid and binding contract, between -2- the City and the Company, but this Ordinance shall be void unless the Company shall, within thirty (30) days after passage and publication of same by the City, file with the City Clerk its unconditional acceptance of the Ordinance, as hereinafter provided. Section 5. Territorial Area Involved: This Ordinance is related to the present territorial limits of the City and to any area henceforth added thereto during the term of this agreement; provided, however, that the Company shall not be required to build (a) annexed sections of the City that do not meet a general density standard of fifty (50) homes per mile of cable system including interconnecting trunk, or (b) sections where necessary easements cannot be reasonably obtained. The Company shall be required to provide service at regular rates to all structures within one hundred and fifty (150) feet of its, distribution system. Section 6. Liability of Company -Indemnification: It is expressly understood and agreed by and between the Company and the City that the Company shall hold the City harmless from all losses sustained by the City by reason of any suit, judgment, execution, claim or demand resulting from the construction, operations or maintenance by the Company of its cable television system in the City. The Company shall, prior to the commencement of construction of the system, file with the City Clerk and at all times thereafter maintain in full force and effect for the term of such franchise, at Company's sole expense, a general comprehensive liability insurance policy, in protection of the City, its officers, boards, commissions, agents, and employees, in a company authorized to do business in the State, and in a form satisfactory to the City Attorney, protecting the City and all persons against liability for loss or damage for personal injury, death and property damage, occasioned by the operations of the Company under such permit in the minimum amounts of: $ 250,000.00 for property damage to any one person; $ 500,000.00 for property damage in any one occurrence; $ 500,000.00 for personal injury to any one person; $1,00.0,000.00 for personal injury in any one occurrence. Section 7.Faithful' Performance Bond: The Grantee shall, within 90 days of its acceptance of this permit, file with the City Clerk and for three years thereafter maintain in full force and effect at Grantee's sole expense, a corporate surety bond with a responsible Company licensed to do business in the State, in the initial amount of $10,000.00, renewable annually, and conditioned upon the faithful performance of Grantee, and upon the further condition that in the event Grantee shall fail to comply with any one or more of the provisions of this Ordinance, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the City as a result thereof, including the full amount of any compensation, indemnification, or cost of removal of any property of the Grantee as prescribed hereby, plus a reasonable allowance for attorneys' fees and costs, up to the full amount of the bond. If the City shall recover any amount from the bond during the initial or subsequent three-year period, then the Company shall provide an identical bond for an additional three-year period. The bond shall provide that at least thrity (30) days' prior written notice of intention not to renew, cancellation, or material change, be given to the City by filing the same with the City Clerk. -3- Section 8. Service Standards and Requirements: a. The Company shall maintain its service in accordance with the accepted standards of the industry, so as to provide its subscribers with the highest possible level of quality and reliability. The Company shall maintain a business office and service facilities within the City. All subscribers will be informed of the telephone numbers and location of such office so as to make the filing of inquiries and service complaints as easy as possible. A listed full time telephone service number shall be maintained so as to permit registering of complaints 24 hours daily, seven days a week. b. The Company shall employ sufficient persons to provide prompt response to all inquiries and complaints. Loss of all service shall be corrected within 24 hours, and degraded reception shall be corrected within two business days, except in the event of disaster or other conditions beyond the control of Grantee. The Company shall maintain records of all service complaints. Such records shall include the name and address of the subscriber, the date and time at which the complaint was received, the nature of the complaint, the resolution of the complaint and the date and time of such resolution. Section 9. Time of Construction and Service: Upon the effective date of this franchise, the Company shall dili- gently commence acquisition of all necessary certificates, permits, licenses and agreements which are required to construct a CATV system in the City. Within six (6) months of the effective date of this franchise, the Company shall commence construction. Thereafter, construction shall proceed so as to make service available throughout the City, as defined in Section 5 within 15 months of the effective date of the franchise. In the event the Company fails to start construction within six (6) months, the City may hold a public hearing on the delays. If construction has not started for reasons within the control of Grantee, then the Grantee shall commence construction within sixty (60) days of the hearing; if construction is not so started, the City may then cancel the franchise without further notice. If construction is' not completed as set forth in this section, the.City may proceed to make claim on the performance bond as set forth in Section 7. Reasonable extensions to the deadlines for commencement and completion of construction shall be granted for delays caused by weather, strike, Act of God, inablity to obtain necessary construction permits, or other reasons beyond control of Grantee. Section 10. Special Services: a. The Company shall furnish, upon request, at no charge, one outlet for each local school, municipal office building or city -owned facility within its service area and not more than one hundred and fifty (150) feet from the Company's existing service facilities. b. In the case of an emergency or a disaster, the Company shall, upon request of the City, make available its facilities to the City for emergency use during the emergency or disaster period. The Company will also provide a means -4- of interrupting the audio portion of the cable system to present emergency messages by local law enforcement and public officials. Section 11. Safety Requirements: a. The Company shall at all times employ due care and shall install and maintain in use commonly accepted methods and devices for preventing failure and accidents which may cause damage, injuries, or nuisances to the public. b. The Company shall install and maintain its wires, cables, fixtures, and other equipment in accordance with the requirements of the National Electric Safety Code and local ordinances which are applicable. c. All structures and all lines, equipment, and connections in, or over, under and/or upon the streets, sidewalks, alleys, and public ways or places of the City wherever situated or located, shall be kept and maintained at all times in a safe, suitable, substantial condition, and in good order and repair. Section 12. New Developments: It shall be the policy of the City to amend this Ordinance liberally, upon application of the Company, when necessary to enable the Company to respond to changes in Federal Communications Commission regulations, and to take advantage of any developments in the field of transmission of television signals and related services which will afford it an opportunity more effectively, efficiently, or economically to serve its customers. Section 13. Conditions on Street Occupancy: a. All transmission and distribution structures, lines and egipment erected by the Company within the City shall be so located as to cause minimum interference with the proper use of streets, alleys, and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners whose land may adjoin any of the said streets, alleys, or other public ways and places. b. In case of disturbance of any streets, sidewalk, alley, public way, or paved area, the surface shall be repaired toat least the state that existed prior to disturbance. All repairs shall be made as agreed between the City and Company, in compliance with all existing City Ordinances. c. If at any time during the period of this Ordinance the City shall lawfully elect to alter or change the grade or alignment or re-routing of any street, sidewalk, alley, or other public way, the Company, upon reasonable notice by the City shall remove and relocate its poles, wires, cable, underground conduits, manholes, and other fixtures at its own expense. d. Any poles or other fixtures placed in any public way by the Company shall be placed in such manner as not to interfere with the usual travel on such public way. e. In all areas of the City where the wires, cables and other facilities of the power company and the telephone company are located underground, the Company will locate its facilities underground. -5- " f. The Company shall have the authority, under the supervision of the City's appropriate authority, to trim trees upon and overhanging streets, alleys, sidewalks, and public ways and places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Company. Section 14. Prohibition of Discriminatory or Preferential Practices: The Company shall not, in its rates, charges, service facilities, promotional campaigns, rules, regulations, or in any other respect, make or grant preference or advantages to any subscriber, or other user or potential user of its System, nor subject any person to any prejudice or disadvantage. Connection charges may be discounted during construction and during special promotions on a non-discriminatory basis. Section 15. Removal of Facilities Upon Request: Upon termination of service to any subscriber, the Company shall promptly remove all its'facilties and equipment from the premises of such subscriber upon his request. Section 16. Assignability: The Company shall not at any time sell or assign its rights and privileges under this Ordinance and the cable television system located in the City to any other person, firm or corporation without the approval of the City. Such assignment shall be approved when the assignee shall have agreed in writing with the City to become responsible for the full performance of all the conditions, liabilities, covenants and obligations contained in this Ordinance and the City is satisfied with'the financial ability of the assignee to fulfill such performance. Nothing in this Section shall be deemed to prohibit a mortgage or pledge of the permit, system, or any part thereof, for financing purposes without prior approval. Section 17. Gross Revenue: Within ninety (90) days following the end of the Company's fiscal year, (ending 6/30), the Company shall file with the City a certified report showing gross subscriber revenues of the Company from subscribers throughout the City since the preceding report. Section 18. Franchise Fee: The Company shall pay to the City an annual fee equal to 3% of the gross subscriber revenues of the Company in the City. Payment shall be made annually in arrears, simultaneously with the report required by Section 17. The Company shall also purchase all normal fixed -fee permits and licenses required of all businesses in the City. Section 19. City Rights in Ordinance: a. The right is hereby reserved to the City to adopt, in addition to the provisions contained herein and in existing applicable agreements, such additional regulations as it shall find necessary in the exercise of the police power; provided that such regulations, by ordinance or otherwise, shall be reasonable and not in conflict with the right herein granted. b. The City shall have the right, during the life of this Ordinance, to install and maintain free of charge upon -6- the poles of the Company any wire and pole fixtures necessary for a police alarm system, or traffic control system on the condition that such wire and pole fixtures do not interfere with the CATV operation of the Company. c. The City shall have the right to inspect the maps, plans, and other like materials of the Company at any time during normal business hours. d. The City shall have the right to review all construction or installation work performed subject to the provisions of this Ordinance and make such inspections as it shall find necessary to insure compliance with the terms of this Ordinance and other pertinent provisions of law. Section 20. Forfeiture of Ordinance: If the Company shall fail to comply with any of the provisions of this grant or shall default in any of its undertakings of obligations hereunder and shall fail within sixty (60) days after receipt of written notice from the City to correct such default or non-compliance, then the City shall have the right, after a full and complete hearing and finding of fact, to revoke any or all rights and privileges granted hereunder or to invoke lesser penalties; provided, however, that default or non- compliance resulting from factors beyond the reasonable control of the Company shall not be sufficient grounds for revocation. The Company shall have the right to appeal any finding of default or violation and any resultant penalty to any court of competent jurisdiction within the State of Idaho. In the event the franchise is revoked, and if the System is in operation,,the Company may continue to operate the system for a period'of up to nine (9) months, during which the Company shall sell its interest in the System to another qualified operator at fair market value. • Section 21. Signal Carriage: It will be the policy of the Company to provide on the cable a broad selection of television signals; the Company will offer at least the services set forth as follows: CABLE CHANNEL SERVICE 2 KBCI-2, BOISE (CBS) 3 TRINITY (RELIGIOUS) 4 KAID-4, BOISE (PBS) 5 HOME BOX OFFICE 6 KIVI-6, BOISE (ABC) 7 KTVB-7, BOISE (NBC) 8 NICKELODEON (CHILDREN) 9 NEWS/WEATHER/LOCAL 10 FUTURE 11 ESPN (SPORTS) 12 FUTURE 13 WTBS-17, ATLANTA (IND) Should subsequent developments require changes, the Company will, at all times, offer services equal to or greater than those intially proposed. -7- Section 22. Erection, Removal and Joint Use of Poles: a. No poles, or other wire -holding structures shall be erected or installed by the Grantee without prior approval of the City with regard to location, height, type and other pertinent aspects. The locations of any pole, or wire -holding structure of the Grantee shall not be a vested right and such poles, or structures shall be removed or modified by the Grantee at its own expense upon such order of the City. b. Where poles or other wire -holding structures of any public utility company are available for use by the Grantee, the Grantee shall use such poles and structures if the per- mission and consent of such public utility company may be obtained by the Grantee and if the terms of the use available to the Grantee are just and reasonable. c. Where a public utility serving the City desires to make use of the poles or other wire -holding structures of the Grantee; but agreement therefor with the Grantee cannot be reached, the City may require the Grantee to permit such use for such consideration and upon such terms as the. City Council shall determine to be just and reasonable, if the use would not unduly interfere with or burden the Grantee's operations. Section 23. Rates: a. In its rates, charges, service facilities, rules regulations or in any other respect, the Company shall not make or grant any preference or advantage to any person nor subject any person to any prejudice or disadvantage with the same classifications of service. The Company shall have the right to establish different classi- fications of service for residential and commercial users and to adopt charges and rate schedules to which any subscriber within said classifications shall be entiled. b. The initial schedule of subscriber charges to be paid shall be as follows: INSTALLATION Basic service Basic service, initial installation of underground drop Home Box Office, if installed on separate trip Premium service or converter, installed with another service Extra outlets, each MONTHLY SERVICE Basic service, first outlet Extra outlet FM outlet (with primary service) Home Box Office -8- $20.00 $35.00 $10.00 no charge $ 5.00 $ 8.50 $ 1.25 $ 1.25 $ 9.00 APARTMENT AND COMMERCIAL RATES. Residential buildings, bulk billed, monthly service Residential buildings, bulk billed, installation Nonresidential, first outlet, monthly service Nonresidential, additional outlets, monthly service Nonresidential installation Hotel/Motel service SEASONAL RATES Install and 5 months' service, if prepaid before 4/15 (conditions and nature of offer subject to'change at operator's discretion) DISCOUNTED INSTALLATION To be negotiated., 60%-90% of basic rate per unit Negotiated $ 8.50 $ 1.25 Negotiated Negotiated $50.00 For the first 30 days that service is available to a given area, subscribers will be offered a $10.00 discount off normal first -outlet installation charges, and a $2.50 discount on extra outlets (up to two). Promotional installation fees may be offered from time to time thereafter. DELINQUENT COLLECTION FEE A $7.50 fee will be charged on accounts where collection is made at the home. UNIFORMITY OF RATES All service -area subscribers shall pay the standard rates as set forth above. Promotional discounts on installa- tion may be offered from time to time, on a uniform and non- discriminatory basis, within the service area. Seasonal rates may be established. If so, they will be/made available to all residents and inhabitants on an equal basis. In the event the system is extended to areas outside the city limits, subscribers outside the city shall pay not less than the rates set forth in this Ordinance. SENIOR CITIZEN DISCOUNT The sum of $10.00 shall be deducted from normal charges for installation work for all senior citizens. TREES In areas where there are less than 80 homes per mile, and other utilities are on trees, the Company reserves the right to add additional installation fees. PARENTAL "KEY" DEVICE Used for controlling access to HBO channel; optional. Installation is free and a $10.00 refundable deposit is collected. -9- I FREE SERVICE One cable television outlet will be installed in each nonresidential City -owned building and each public school in the service area, if desired. There will be no charge for a normal aerial installation to these buildings. There will be no charge for normal basic monthly service to these buildings, provided the ,signals are not resold. c. The rates as proposed shall remain in effect for one year from the date of first subscriber service, unless the start of service is delayed beyond 6/30/81 for reasons beyond the control of the Grantee. Thereafter, Grantee may make annual adjustments to rates as it deems appropriate and reasonable, so long as such rates are in compliance with all other provisions of this Ordinance. Section 24. System Security: The Company shall have the right at all times to take any and all legal action it deems necessary to preserve the security of its cable television system and to assure appropriate use thereof by its subscribers. Section 25. Tampering With CATV Equipment -MISDEMEANOR: Any person who wilfully or maliciously damages, or causes to be damaged, any wire, cable, conduit, apparatus or equipment of the Company, or who commits any act with intent to cause damage to any wire, cable, conduit, apparatus or equipment of the Company, or who taps, tampers with, or connects any wire or device to a wire, cable, conduit or equipment of the Company with intent to obtain a signal or impulse therefrom without authorization of the Company, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed $300.00. Section 26. Separability: If any section, subdivision, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions hereof. Section 27. Duration and Acceptance of the Ordinance: This Ordinance and the rights, privileges and authority hereby granted shall take effect and be in force from and after final passage and publication hereof, as provided by law, and any franchise permitted or operated hereunder shall continue in force and effect for a term of twenty (20) years, provided that within thirty (30) days after the date of the passage of the Ordinance, the Company shall file with the City its unconditional acceptance of the franchise and promise to comply with and abide by all its provisions, terms and conditions. Such acceptance and promise shall be in writing duly executed and sworn to, by the appropriate officials of the Company before a Notary Public or other officer authorized by law to administer oaths. Passed and approved this /SX day 1980. Cflty Clerk g Attest: 0 w ORDINANCE NO. AN ORDINANCE RELATING TO CABLE TELEVISION; PROVIDING DEFINITIONS; GRANTING A TWENTY (20) YEAR NON-EXCLUSIVE FRANCHISE TO CONSTRUCT, OWN, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM WITHIN THE CITY OF McCALL, IDAHO; PROVIDING CONDITIONS ACCOMPANYING THE GRANTING OF SAID FRANCHISE; PROVIDING RATES, RULES AND REGULATIONS THEREFOR; PROVIDING FOR CANCELLATION OF SUCH FRANCHISE; MAKING IT UNLAWFUL TO INJURE ANY PROPERTY USED IN CONNECTION THEREWITH AND MAKING IT UNLAWFUL TO MAKE OR ATTEMPT TO MAKE UNAUTHORIZED CONNECTION TO SUCH CABLE TELEVISION SYSTEM; PROVIDING FOR SEPARABILITY AND PROVIDING FOR DURATION AND ACCEPTANCE OF THIS ORDINANCE. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF McCALL, IDAHO, AS FOLLOWS: Section 1. Definitions: For the purposes of this Ordinance, the following terms, phrases, words, and their derivation shall have meaning given herein. When not incon- sistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and the words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. a. "City" is the City of McCall, Idaho. b. "CABLE TELEVISION SYSTEM", hereinafter referred to as "CATV System" or "system", means a system of coaxial cables or other electrical conductors and transmission equipment used or to be used primarily to receive television or radio signals directly or indirectly off -the -air and other related services and transmit them to subscribers for a fee. c. "Company" or "Grantee" shall be Cablevision of McCall, Inc., or anyone who succeeds it in accordance with the provisions of this Ordinance. d. "Person" is any person, firm, partnership, association, corporation, company, or organization of any kind. e. "FCC" is the Federal Communications Commission or its successor agency. f. "Gross Subscriber Revenues" shall mean the grantee's annual gross subscriber revenues derived from monthly Cable Television Service in the City. g. "Street" shall, mean the surface of, and the space above and below, any public street, road, highway, freeway, right-of-way, easement, alley, court, side4alk, parkway, drive or other public property, hereafter existing as such within the City. h. "Subscriber" shall mean any person or entity receiving for any purpose the cable television services of the Company herein. Y i. "Basic Service" shall mean the simultaneous delivery by the company to television receivers (or any other suitable type of audio -video communication receivers), of all sub- scribers and to all locations in the City, of all signals of over -the -air television broadcasts required to be carried on the cable television system by the FCC, and Additional Service at the option of the Company. j. "Proposal" shall mean the Company's document dated June 3, 1980, describing the system it proposes to build and operate, a copy of which proposal has been filed with the City Clerk. Section 2. Grant of Non -Exclusive Franchise: The City hereby grants to the Company the non-exclusive franchise, right, privilege, authority and easement for period of twenty (20) years from the effective date hOreof, renewable for an additional twenty (20) year period as provided herein, unless soonerterminated pursuant to the provisions of this Ordinance, to construct, erect, suspend, install, renew, maintain, and otherwise own and operate throughout the City, in, upon, along, across, above, over and under the streets, alleys, easements, public ways and public places as now laid out or dedicated, and all extensions thereof, and additions thereto, in the City a system of poles, wires, cables, underground conduits, ducts, trenches, conductors, amplifying equipment, manholes, fittings, and any and all other fixtures, appliances and appurtenances necessary for the installation, ownership, maintenance and operation in the City of a cable television (CATV) system to serve residents and inhabitants of the City. This franchise shall in no way be construed to prohibit extensions of the City system for the purpose of distribution of services to inhabitants outside the limits of the City. Without limiting the generality of the foregoing, this franchise shall and does hereby include the right to make connections to subscribers, the right to repair, replace and enlarge and extend said lines, equipment and connections. Section 3. Compliance With Applicable Laws And Ordinances: The Company shall at all times during the life of this. Ordinance be subject to all lawful exercise of the police power by the City and to such reasonable regulation by the City as the City shall thereunder provide. The Company shall comply with all laws, statutes, codes, ordinances, rules, or regulations applicable to its.business, including those of the Federal Communications Commission with special reference to Section 76.31 thereof. Section 4. Effective Date and Terme This Ordinance shall take effect and be in full force after final passage and publication hereof, as provided by law, and said Ordinance shall continue in full force and effect for a term of twenty (20) years, upon the terms and conditions set forth herein. An option for renewal, for an additional twenty (20) year period under the terms and conditions mutually agreeable to both parties, may be exercised by the Company by giving the City notice in writing of its election to exercise this option, which notice shall be given not less than one (1) year nor more than five (5) years prior to the expiration of the term of this Ordinance. Renewal shall not be unreasonably denied, and may be granted by the City after consideration of the Company's qualifications and after full public proceedings affording due process, within six months of the Company's written notice. This Ordinance, when accepted by the Company, shall be and hecome a valid and binding contract, between -2- the City and the Company, but this Ordinance shall be void unless the Company shall, within thirty (30) days after ' passage and publication of same by the City, file with the City Clerk its unconditional acceptance of the Ordinance, as hereinafter provided. Sectibn 5. Territorial Area Involved: This Ordinance is related to the present territorial limits of the City and to any area henceforth added thereto during the term of this agreement; ,provided, however, that the Company shall not be required to build (a) annexed sections of the City that do not meet a general density standard of fifty (50) homes per mile of cable system including interconnecting trunk, or (b) sections where necessary easements cannot be reasonably obtained. The Company shall be required to provide service at'regular rates to all -structures within oiie hundred and fifty (150) feet of its..dtstribution system. Section 6. LiAbility of Company -Indemnification: It is expressly underst©od and agreed by and between the Company and the City that the Company shall hold the City harmless from all losses sustained by the City by reason of any suit, judgment, execution, claim or demand resulting from the' construction, operations or maintenance by the Company of its cable television system in the City. The Company shall, prior to the commencement of construction of the system, file with the City Clerk and at all times thereafter maintain in full force and effect for the term of such franchise, at Company's sole expense, a general comprehensive liability insurance policy, in protection of the City, its officers, boards, commissions, agents, and employees, in a company authorized to do business in the State, and in a form satisfactory to the City Attorney, protecting the City and all persons against liability for loss or damage for personal injury, death and property damage, occasioned by the operations of the Company under such permit in the minimum amounts of: $ 250,000.00 for property damage to any one person; $ 500,000.00 for property damage in any one occurrence; $ 500,000.00 for personal injury to any one person; $1,000,000.00 for personal injury in any one occurrence. Section 7. Faithful Performance Bond: The Grantee shall, within 90 days of its acceptance of this permit, file with the City Clerk and for three years thereafter maintain in full force and effect at Grantee's sole expense, a corporate surety bond with a responsible Company licensed to do business in the State, in the initial amount of $10,000.00, renewable annually, and conditioned upon the faithful performance of Grantee, and upon the further condition that in the event Grantee shall fail to comply with any one or more of the provisions of this Ordinance, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the City as a result thereof, including the full amount of any compensation, indemnification, or cost of removal of any property of the Grantee as prescribed hereby, plus a reasonable allowance for attorneys' fees and costs, up to the full amount of the bond. If the City shall recover any amount from the bond during the initial or subsequent three-year period, then the Company shall provide an identical bond for an additional three-year period. The bond shall provide that at least thrity (30) days' prior written notice of intention not to renew, cancellation, or material change, be given to the City by filing the same with the City Clerk. -3- Section 8. Service Standards and Requirements: Company shall maintain its service in accordance with the accepted standards of the industry, so as to provide its • subscribers with the highest possible level of quality and reliability. The Company shall maintain a business office and service facilities within the City. All subscribers will be informed of the telephone numbers and location of such office so as to.make the filing of inquiries and service complaints as easy as possible. A listed full time telephone service number shall be maintained so as to permit registering of complaints 24 hours daily, seven days a week. b. The Company shall employ sufficient persons to provide prompt response to all inquiries and complaints. Loss of all service shall be corrected within 24 hours, and degraded reception shall be corrected withift two business days, except in the event of disaster or other conditions beyond the control of Grantee. The Company shall maintain records of all service complaints. Such records shall include the name and address of the subscriber, the date and time at which the complaint was received, the nature of the complaint, the resolution of the complaint and the date and time of such resolution. Section 9. Time of Construction and Service: Upon the effective date of this franchise, the Company shall dili- gently commence acquisition of all necessary certificates, permits, licenses and agreements which are required to construct a CATV system in the City. Within six (6) months of the effective date of this franchise, the Company shall commence construction. Thereafter, construction shall proceed so as to make service available throughout the City, as defined in Section 5 within 15 months of the effective date of the.. franchise. In the event the Company fails to start construction within six (6) months, the City may hold a public hearing on the delays. If construction has not started for reasons within the control of Grantee, then the Grantee shall commence construction within sixty (60) days of the hearing; if construction is not so started, the City may then cancel the franchise without further notice. If construction is not completed as set forth in this section, the City may proceed to make claim on the performance bond as set forth in Section 7. Reasonable extensions to the deadlines for commencement and completion of construction shall be granted for delays caused by weather, strike, Act of God, inablity to obtain necessary construction permits, or other reasons beyond control of Grantee. Section 10. Special Services: a. The Company shall furnish, upon request, at no charge, one outlet for each local school, municipal office building or city-owned,facility within its service area and not more than one hundred and fifty (150) feet from the Company's existing service facilities b. In the case of an emergency or a disaster, the Company shall, upon request of the City, make available its facilities to the City for emergency use during the emergency or disaster period. The Company will also provide a means -4- of'interrupti.,/ the audio portion of the ble systet to present emergency messages by local law enforcement and public officials. Section 11. Safety Requirements: a. The Company shall at all times employ due care and shall install and maintain in use commonly accepted methods and devices for preventing failure and accidents which may cause damage, injuries, or nuisances to the public. b. The Company shall install and maintain its wires, cables, fixtures, and other equipment in accordance with the requirements of the National Electric Safety Code and local ordinances which are applicable. c. All structures and all lines, equipment, and connections in, or over, under and/or upon the streets, sidewalks, alleys, and public ways or places of the City wherever situated or located, shall be kept and maintained at all times in a safe, suitable, substantial condition, and in good order and repair. Section 12. New Developments: It shall be the policy of the City to amend this Ordinance liberally, upon application of the Company, when necessary to enable the Company to respond to changes in Federal Communications Commission regulations, and to take advantage of any developments in the field of transmission of television signals and related services which will afford it an opportunity more effectively, efficiently, or economically to serve its customers. - Section 13. Conditions on Street Occupancy: a. All transmission and distribution structures, lines and eq4pment erected by the Company within the City shall be so located as to cause minimum interference with the proper use of streets, alleys, and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners whose land may adjoin any of the said streets, alleys, or other public ways and places. b. In case of disturbance of any streets, sidewalk, alley, public way, or paved area, the surface shall be repaired to at least the state that existed prior to disturbance. All repairs shall be made as agreed between the City and Company, in compliance with all existing City Ordinances. c. If at any time during the period of this Ordinance the City shall lawfully elect to alter or change the grade or alignment or re-routing of any street, sidewalk, alley, or other public way, the Company, upon reasonable notice by the City shall remove and relocate its poles, wires, cable, underground conduits, manholes, and other fixtures at its own expense. d. Any poles or other fixtures placed in any public way by the Company shall be placed in such manner as not to interfere with the usual travel on such public way. e. In all areas of the City where the wires, cables and other facilities of the power company and the telephone company are located underground, the Company will locate its facilities underground. -5- f. The Company shall have the authority, under the supervision of the City's appropriate authority, to trim trees upon and overhanging streets, alleys, sidewalks, and public ways and places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Company. Section 14. Prohibition of Discriminatory or Preferential Practices: The Company shall not, in its rates, charges, service facilities, promotional campaigns, rules, regulations, or in any other respect, make or grant preference or advantages to any subscriber, or other user or potential user of its System, nor subject any person to any prejudice or disadvantage. Connection charges may be discounted during construction and during special promotions on a non-discriminatory basis. Section 15. Removal of Facilities Upon Request: Upon termination of service to any subscriber, the Company shall promptly remove all its facilties and equipment from the premises of such subscriber upon his request. Section 16. Assignability: The Company shall not at any time sell or assign its rights and privileges under this Ordinance and the cable television system located in the City to any other person, firm or corporation without the approval of the City. Such assignment shall be approved when the assignee shall have agreed in writing with the City to become responsible for the full performance of all the conditions, liabilities, covenants and obligations contained in this Ordinance and the City is satisfied with the financial ability of the assignee to fulfill such performance. Nothing in this Section shall be deemed to prohibit a mortgage or pledge of the permit, system, or any part thereof, for financing purposes without prior approval. Section 17. Gross Revenue: Within ninety (90) days following the end of the Company's fiscal year, (ending 6/30), the Company shall file with the City a certified report showing gross subscriber revenues of the Company from subscribers throughout the City since the preceding report. Section 18. Franchise Fee: The Company shall pay to the City an annual fee equal to 3% of the gross subscriber revenues of the Company in the City. Payment shall be made annually in arrears, simultaneously with .the report required by Section 17. The Company shall also purchase all normal fixed -fee permits and licenses required of all businesses in the City. Section 19. City Rights in Ordinance: a. The right is hereby reserved to the City to adopt, in addition to the provisions, contained herein and in existing applicable agreements, such additional regulations as it shall find necessary in the exercise of the police power; provided -that such regulations, by ordinance or otherwise, shall be reasonable and not in conflict with the right herein granted-. b. The City shall have the right, during the life of this Ordinance, to install and maintain free of charge upon -6- 4-• • .111. the poles of the Company any wire and pole fixtures necessary for a police alarm system, or traffic control system on the condition that such wire and pole fixtures do not interfere with the CATV operation of the Company. c. TheCity shall have the right to inspect the maps, plans, and other like materials of the Company at any time during normal business hours. d. The City shall have the right to review all construction or installation work performed subject to the provisions of this Ordinance and make such inspections as it shall find necessary to insure compliance with the terms of this Ordinance and other pertinent provisions of law. Section 20. Forfeiture of Ordinance: If the Company shall fail to comply with any of the provisions of this grant or shall default in any of its undertakings of obligations hereunder and shall fail within sixty (60) days after receipt of written notice from the City to correct such default or non-compliance, then the City shall have the right, after a full and complete hearing and finding of fact, to revoke any or all rights and privileges granted hereunder or to invoke lesser penalties; provided, however, that default or non- compliance resulting from factors beyond the reasonable control of the Company shall not be sufficient grounds for revocation. The Company shall have the right to appeal any finding of default or violation and any resultant penalty to any court of competent jurisdiction within the State of Idaho. In the event the franchise is revoked, and if the System is in operation, the Company may continue to operate the system for a period of up to nine (9) months, during which the Company shall sell its interest in the System to another qualified operator at fair market value. Section 21. Signal Carriage: It will be the policy of the Company to provide on the cable a broad selection of television signals; the Company will offer at least the services set forth as follows: CABLE CHANNEL SERVICE 2 KBCI-2, BOISE (CBS) 3 TRINITY (RELIGIOUS) 4 KAID-4, BOISE (PBS) 5 HOME BOX OFFICE 6 KIVI-6, BOISE (ABC) 7 KTVB-7, BOISE (NBC) 8 NICKELODEON (CHILDREN) 9 NEWS/WEATHER/LOCAL 10 FUTURE 11 ESPN (SPORTS) 12 FUTURE 13 WTBS-17, ATLANTA (IND) Should subsequent developments require changes, the Company will, at all times, offer services equal to or greater than those intially proposed. -7- Section 22. Erection, Removal and Joint Use of Poles: a. No poles, or other wire -holding structures shall be erected or installed by the Grantee without prior approval of the City with regard to location, height, type and other pertinent aspects. The locations of any pole, or wire -holding structure of the Grantee shall not be a vested right and such poles, or structures shall be removed or modified by the Grantee at its own expense upon such order of the City. b. Where poles or other wire -holding structures of any public utility company are available for use by the Grantee, the Grantee shall use such poles and structures if the per- mission and consent of such public utility company may be obtained by the Grantee and if the terms of the use available to the Grantee are just and reasonable. c. Where a public utility serving the City desires to make use of the poles or other wire -holding structures of the Grantee; but agreement therefor with the Grantee cannot be reached, the City may require the Grantee to permit such use for such consideration and upon such terms as the City Council shall determine to be just and reasonable, if the use would not unduly interfere with or burden the Grantee's operations. Section 23. Rates: a. In its rates, charges, service facilities, rules regulations or in any other respect, the Company shall not make or grant any preference or advantage to any person nor subject any person to any prejudice or disadvantage with the same classifications of service. The Company shall have the right to establish different classi- fications of service for residential and commercial users and to adopt charges and rate schedules to which any subscriber within said classifications shall be entiled. b. The initial schedule of subscriber charges to be paid shall be as follows: INSTALLATION Basic service Basic service, initial installation of underground drop Home Box Office, if installed on separate trip Premium service or converter, installed with another service Extra outlets, each MONTHLY SERVICE Basic service, first outlet Extra outlet FM outlet (with primary service) Home Box "Office -8- $20.00 $35.00 $10.00 no charge $ 5.00 $ 8.50 $ 1.25 $ 1.25 $ 9.00 Reside—al buildings, bulk billec_, monthly service Residential buildings, bulk billed, installation Nonresidential, first outlet, monthly service Nonresidential, additional outlets, monthly service Nonresidential installation Hotel/Motel service SEASONAL RATES Install and 5 months' service, if prepaid before 4/15 (conditions and nature of offer subject to change at operator's discretion) DISCOUNTED INSTALLATION 'o. lie; negotiated, 6096-90% of basic rate' per -unit • Negotiated $ 8.50 $ 1.25 Negotiated Negotiated $50.00 For the first 30 days that service is available to a given area, subscribers will be offered a $10.00 discount off normal first -outlet installation charges, and a $2.50 discount on extra outlets (up to two). Promotional installation fees may be offered from time to time thereafter. DELINQUENT COLLECTION FEE A $7.50 fee will be charged on accounts where collection is made at the home. UNIFORMITY OF RATES All service -area subscribers shall pay the standard rates as setforth above. Promotional discounts on installa- tion may be offered from time to time, on a uniform and non- discriminatory basis, within the service area. Seasonal rates may be established. If so, they will be made available to all residents and inhabitants on an equal basis. In the event the system is extended to areas outside the city limits, subscribers outside the city shall pay not less than the rates set forth in this Ordinance. SENIOR CITIZEN DISCOUNT The sum of $10.00 shall be deducted from normal charges for installation work for all senior citizens. TREES In areas where there are less than 80 homes per mile, and other utilities are on trees, the Company reserves the right to add additional installation fees. PARENTAL "KEY" DEVICE Used for controlling access to HBO channel; optional. Installation is free and a $10.00 refundable deposit is collected. • -9- FREE' SERVICE One cable television outlet will be installed in each nonresidential City -owned building and each public school in the service area, if desired. There will be no charge for a normal aerial installation to these buildings. There will be no charge for normal basic monthly service to these buildings, provided the signals are not resold. c. The rates as proposed shall remain in effect for one year from the date of first subscriber service, unless the start of service is delayed beyond 6/30/81 for reasons beyond the control of the Grantee. Thereafter, Grantee may make annual adjustments to rates as it deems appropriate and reasonab19, so long as such rates are in compliance with all other provisions of this Ordinance. Section 24. System Security: The Company shall have the right at all times to take any and all legal action it deems necessary to preserve the security of its cable television system and to assure appropriate use thereof by its subscribers. Section 25. Tampering With CATV Equipment -MISDEMEANOR: Any person who wilfully or maliciously damages, or causes to be damaged, any wire, cable, conduit, apparatus or equipment of the Company, or who commits any act with intent to cause damage to any wire, cable, conduit, apparatus or.equipment of the Company, or who taps, tampers with, or connects any wire or device to a wire, cable, conduit or equipment of the Company with intent to obtain a signal or impulse therefrom without authorization of the Company, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed $300.00. Section 26. Separability: If any section, subdivision, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions hereof. Section 27. Duration and Acceptance of the Ordinance: This Ordinance and the rights, privileges and authority hereby granted shall take effect and be in force from and after final passage and publication hereof, as provided by law, and any franchise permitted or operated hereunder shall continue in force and effect for a term of twenty (20) years, provided that within thirty (30) days after the date of the passage of the Ordinance, the Company shall file with the City its unconditional acceptance of the franchiseand promise to comply with and abide by all its provisions, terms and conditions. Such acceptance and promise shall be in writing duly executed and sworn to, by the appropriate officials of the Company before a Notary Public or other officer authorized by law to administer oaths. Passed and approved this 1980. Attest: ty Clerk /J 1 day o tv. ' '