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HomeMy WebLinkAbout1980-2443 FRANCHISE TO YAKIMA VALLEY CABLEVISION, INC ORDINANCE NO. 2443 AN ORDINANCE granting a non - exclusive franchise to Yakima Valley Cablevision, Inc. to operate and maintain a cable communications system within a specified area. within the City of Yakima; setting forth provisions, terms and conditions of the grant of the franchise; providing for city regulation and use of the cable communications system; and pre- scribing penalties for violation of the franchise provi sio'ns. BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. Definitions. For the purposes of this ordin -, ance, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, • words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. • 1. "Cablecasting" is programming carried on a cable system, exclusive of broadcast signals, whether originated by the cable operator or any other party. 2. "Cable communications system ", hereinafter referred to as "CATV System" or "system ", means a system which receives and amplifies signals broadcast by one or more television and /or radio stations and which receives or originates other programming by any party, and distributes such signals and programming from a common headend by wire, cable, microwave, satellite, or other means to subscribers for a fee,,. 3. "City" is the City of Yakima, State of Washington, in its present incorporated form or as it may be changed by annexation. 4. "Council" is the City Council of Yakima. • 5. "Grantee" is Yakima Valley Cablevision, Inc. and its lawful successors and assigns in accordance with the provi- sions of this franchise. 6. "Gross Annual Receipts" means any and all compensation or other consideration, in whatever form, received by the grantee which is in any way related to the provision of cable communications service by the cable communications system subject to this ordinance. The term does not include any governmental taxes on services furnished by the Grantee imposed directly on any subscriber and collected by the • . Grantee. 7. "Person" is any person, firm partnership, association, corporation, company, or organization of any kind. 4 8. "Programming" is any and all information transmitted in electronic form on a cable communications system. 9. "Subscriber" is any person receiving cablecasting service via cable communications system service. 10. "Original Territorial Limits" is those streets and byways within the City of Yakima on the effective date of this franchise and used by the cable communications system of the grantee existing on the effective date of this fran- chise and contained within the areas described in Exhibit A attached hereto and by this reference incorporated herein, together with new facilities constructed to serve potential subscribers who can be reached by extensions not to exceed 300 feet from said existing system. This facility extension limitation does not apply to any individual line to reach a single subscriber. "Future Territorial Limits" is those areas contained within the areas described in Exhibit B attached hereto and by this reference incorporated herein to the extent annexed from time to time into the City of Yakima. "Territorial Limits" is original territorial limits and future territorial limits. Section 2. Grant of Nonexclusive Authority. (1) There is hereby granted by the City to the grantee the right and privilege to construct and reconstruct and to erect, operate and maintain, in, upon, along, across, above, over and under the streets, alleys, public ways and public places within the territorial limits of this franchise, poles, wires, cables, under- , ground conduits, manholes, and other cable conductors and fixtures necessary for the maintenance and operation within the territorial limits of this franchise of grantee's cable communications system for the sale and distribution of cable services, including, but not limited to the carriage of television and radio signals and any cablecasting programmings. (2) The right to use and occupy said streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive, and the City reserves the 410 right to grant a similar use of said streets, alleys, -2- public ways and places, to any person at any time during the period of this franchise. Section 3. City Charter Requirements. The City may acquire the system for the exercise of which this franchise is granted, 411 either by agreement or by condemnation, and upon such purchase by the City, either by agreement or condemnation, no value of the franchise itself shall be taken into account in fixing the price to be paid by the City for such utility. This franchise may be renewed or extended by the franchising authority, upon applica- tion of the grantee, at least sixty (60) days, but not more than three (3) years prior to its expiration, in accordance with the then existing federal, state and local law. Renewal or extension shall be only by ordinance .submitted to a vote of the electors of the City at a general or special election and approved by a majority of the electors voting. Nothing in this provision shall require such renewal or extension. Grantee shall submit to the City within sixty (60) days after the first day of January of each year, an annual report verified by the oath of the presi- dent, treasurer or general manager of grantee, which shall contain such detailed information as may be prescribed by the City Council to enable- it to determine the amount of compensation to be paid to the City for the use of said franchise during the preceding year. Section 4. Compliance with Applicable Laws and Ordinances. The grantee shall, at all times during the life of this fran- chise, be subject to and comply with all ordinances and other lawful exercise of the police power by the City and be subject to and comply with such reasonable regulation as the City shall • hereafter provide. Grantee shall also comply with all applicable laws, rules and regulations of the State of Washington, the 411 Federal Communications Commission, or of any body which may have jurisdiction over grantee's activities under this franchise. -3- Section 5. Permits, Installation and Service. (1) Within 30 days of the grant of this franchise, the grantee shall initiate proceedings to obtain all neces- sary permits and authorizations required to operate under the terms of this • franchise, including all Federal Communications Commission registration requirements. If the necessary authorizations are not received by the grantee within three months of the date of the franchise, the franchise may be cancelled at the option of the City Council. (2) The grantee shall begin construction to upgrade and to conform its existing facilities to the terms of this franchise immediately upon receiving all necessary authorizations, including appropriate notification from other utilities that all make-ready work necessary to prevent unwarranted system construction delays has been completed. Grantee shall complete construction not later than four (4) months after beginning construction. (3) Within the original territorial limits of this franchise, the grantee shall provide cable communica- tions service to all persons who were able and wish to be subscribers to grantee's cable communications system on the effective date of this franchise. In addition, grantee shall be permitted to construct new facilities within the original territorial limits of this franchise within six (6) months of the effective date of this franchise sufficient to serve all potential subscribers who can be reached by extensions of grantee's facilities not to exceed 300 feet from its facilities existing on the effective date of the franchise. This facility extension limitation does not apply to any individual, line to reach a single subscriber. -4- (4) Within the future territorial limits of this franchise, the grantee shall upgrade its existing cable communication system in conformance with the require- ments of this franchise within four (4) months .of the • date each respective portion is annexed to the City. In addition, the grantee shall extend within the future territorial limits cable communications service to.any person who wishes to be a subscriber in conformance with the requirements of this franchise within six (6) months of the date of annexation, unless that person_is able to subscribe to .another cable communications system. • Section - 6. Territorial Area Involved. This franchise relates to those areas defined in section 1.10 of this ordinance as the territorial limits of this franchise. Section 7. Liability and Indemnification. (1) The grantee shall pay and by its acceptance of this franchise the grantee'specifically agrees that it will defend the City against, and pay all damages and penalties which the City may legally be required to pay as a result of granting this franchise. These damages or penalties shall include, but shall not be limited to, damages arising out of copyright infringements and • all other damages arising out of the installation, operation, or maintenance of the cable communications system authorized herein, whether or not any act or omission complained of is authorized, allowed or pro- , hibited by this franchise. (2) The grantee shall pay and by its acceptance of this franchise specifically agrees that it will pay all • necessary and reasonable expenses incurred by the City in defending itself with regard to all damages and -5_ penalties mentioned in subsection (1) above, including reasonable attorney fees. (3) The grantee shall maintain, and by its acceptance of this franchise specifically agrees that it will maintain liability insurance throughout the terms of this franchise insuring the City and the grantee with regard to all damages mentioned in subparagraph (1) above in the minimum amounts of: (a) $500,000.00 for bodily injury or death to any one person; with the limit, however, of $1,000,000.00 for bodily injury or death resulting from any one accident. (b) $250,000.00 for property damage resulting fromany one accident. (4) The grantee shall maintain, and by its acceptance of this franchise specifically agrees that it will maintain throughout the term of this franchise a faith- ful performance bond running to the City, issued by a compensated surety company authorized to do business in the State of Washington and approved by the City, in the penal sum of. $150,000.00 conditioned that the grantee shall well and truly observe, fulfill and perform each term and condition of this franchise and that in case of any breach of condition of the bond, the amount thereof shall be recoverable from the prin- cipal and surety by the City for all damages proximately resulting from the failure of the grantee to well and, faithfully observe and perform any provision of this franchise. (5) Grantee shall furnish proof to the City of the acquisition of insurance and the bond as required 1110 herein by filing with the Yakima City Clerk a copy of -6- • the insurance policy and bond, both of which shall be to approval as to form by the Yakima City Attorney. Section 8. Fair Business Practices. (1) No monitoring of any terminal connected to the system shall take place nor shall information which the grantee may obtain on any particular subscriber be provided voluntarily to any third party without specific written authorization by the subscriber. (2) The grantee shall establish internal procedures for receiving, acting upon, and resolving subscriber complaints. These procedures shall be published and a copy given each subscriber. If a subscriber's com- plaint is not handled as specified in the procedures, or if a subscriber suffers serious deterioration in system signal quality at his terminal and grantee fails to correct the deficiency in a timely manner, the grantee shall be liable to the subscriber for all charges paid by the subscriber to the grantee after the initial complaint, plus reasonable attorney fees. (3) The grantee shall refund to any subscriber whose service is terminated a pro rata portion of the sub- scriber's installation and connection charges under any of the following conditions: (a) If any subscriber terminates service because the grantee fails to render service as required by this franchise; (b) If the grantee terminates service to any subscriber without good cause; or (c) If the grantee ceases to operate the cable communications system authorized herein for any reason, except expiration of this franchise. -7- The amount of the refund shall be the total connection charges less an amount equal to the total connection charges divided by 36 and multiplied by the number of months the subscriber has received service. (4) Grantee shall not engage in the sale or repair of television or radio receivers and associated antennae owned by suscribers. This provision shall not prohibit grantee from making necessary tuning adjustments for television reception via coaxial cable. - Section 9. System Signal Standards. (1) The grantee shall comply fully with the rules and standards for cable communications system operations as adopted by the Federal Communications Commission, 47 C.F.R. §76.601, et seq. If the Federal Communica- tions Commission should cease to establish rules and standards for cable communications system operations at any time during the term of the franchise, the grantee shall continue to operate as if the rules and standards last adopted were in full force and effect until other- wise instructed by the City Council. (2) The cable communications system operated by the grantee under this franchise shall be capable of deliv- ering over the term of the franchise all National Television Systems Committee color and monochrome standard signals - developed and presented to the Federal Communications Commission on July 21, 1953 - to standard Electronic Industries Association approved television receivers without noticeable degradation at all points within the territorial limits of this franchise. (3) Performance requirements and standards specified in this franchise shall be measured at the time of -8- initial testing as provided in paragraph (4) to ensure compliance with this franchise. (4) Initial proof of performance testing shall occur within four (4) months of the commencement of cable communications service to the franchise area pursuant to this ordinance. The method and location of the tests shall be determined by the City Engineer, in consultation with the grantee. Service may continue only if the City Engineer certifies the system is performing as required by this franchise. Tests and measurements shall be performed in a manner consistent with 47 C.F.R. §76.601, et seq. Similar tests shall be performed at least annually at the discretion of the City Engineer who shall report the results to the City Council. (5) The City shall have the right and authority to compel the grantee to test, analyze and report on performance of the system at any time. Section 10. Service Quality Requirements. The grantee shall: (1) Put, keep, and maintain all parts of the system in good condition throughout the term, of the franchise. (2) Transmit signals to all outlets without interfer- ing with other electrical or electronic systems. (3) Limit failures to a minimum by locating and correct- ing malfunctions promptly. (4) Demonstrate by instruments and otherwise to sub- scribers that a signal of adequate strength and quality is being delivered. (5) Furnish to each subscriber, at no additional cost, a complete, accurate, and periodic schedule of programs distributed on the system. -9- (6) Comply with all standards, specifications and requirements of the Federal Communications Commission concerning signal quality and equipment or facilities affecting signal quality as those Federal Communica- tions Commission standards, specifications and require- 111 ments now exist or as they may be amended or otherwise modified during the term of the franchise hereby granted; and grantee shall comply with any such amendments or modifications within the time provided by the Federal Communications Commission, or within any reasonable time under all relevant circumstances if no time period for such compliance is specified by the Federal Communi- cations Commisssion. Grantee shall so comply regardless of the terms of any rule or provision of the Federal Communications Commission which might otherwise relieve grantee of such compliance. Section 11. Operation and Maintenance of System. (1) The grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such inter- ruptions, insofar as possible, shall be preceded by notice to subscribers affected and occur during periods of minimum use. (2) The grantee shall maintain an office in the City, which shall be open during all usual business hours, have a listed telephone, provide usual and ordinary business office services to subscribers, and be so operated that complaints and requests for repairs or adjustments maybe received at any time. Section 12. Carriage of Broadcast Signals. The grantee shall receive and distribute broadcast signals pursuant to the -10- Federal Communications Commission's signal carriage rules, includ- ing all Yakima broadcast stations. The grantee shall not alter or delete any program content of Yakima broadcast stations dis- tributed on the system. , Section 13., Public and Educational Access Services. (1) The grantee shall provide one cable system con- nection capable of two-way audio/visual signals at public school buildings, government buildings or other public buildings as the City Council may, designate within the territorial limits of this franchise. The cost of installation and maintenance of these connec- tions shall be borne by the grantee. Any further connections or wiring will be charged to the City on a cost of time and materials basis. - (2) The grantee shall provide public access channels, education access channels, local government access channels and leased access channels, in the number permitted and required by the rules of the Federal Communications Commission in effect on September 18, 1978, for systems having 3500 or more subscribers, 47 C.F.R. 76.254 (1978). The City Council shall have the right to review and regulate these services. (3) The grantee shall have available and shall provide state of the art equipment and studios to all users of access channels sufficient to utilize completely the access channel capacity of the system. The grantee may comply with this requirement by contracting with another cable operator within the City to make available suffi- cient equipment and facilities to grantee's access channel users to fulfill grantee's obligation under this section. -11- (4) Except as specifically authorized by the Federal Communications Commission, the assessment of costs and the operating rules of the access channels shall be as was specified by the Federal Communications Commission on September 18, 1978, for systems having 3500 or more 410 subscribers, 47 C.F.R. 76.256 (1978). PROVIDED, the grantee shall conform to the plan for operation of the access channel capacity of cable communications systems as approved by the City Council and as authorized by the Federal Communications Commission. (5) The City Council shall appropriate an amount not less than forty percent (40%) of the revenues the City receives from the grantee to carry out the purposes of the plan for utilization of the access channel capacity of the system, as that plan is formally approved by the Council. Section 14. [Reserved.] Section 15. Emergency Use of Facilities. In the case of any emergency or disaster, the grantee shall, upon request of the City Manager, make available its facilities to the City for emergency use during the emergency or disaster period. Section 16. Number of Channels. (1) The cable communications system shall be capable of carrying a minimum 120 Mhz of band width - the equivalent of twenty television broadcast channels as that term is defined by Federal Communications Commis- sion regulations. (2) The cable communications system shall be capable of nonvoice return communications. Section 17. Safety Requirements. (1) The grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures -12- and accidents which are likely to cause damage, injuries, or nuisances to the public. (2) The grantee shall install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of applicable state and local elec- trical safety codes, laws and regulations and in such manner that they will not interfere with any installa- tions of the City or of a public utility serving the City. (3) All structures and all lines, equipment and con- nections in, over, under, and upon the streets, side- walks, alleys, and public ways or places of the City, wherever situated or located, shall at all times be kept and maintained in a safe, suitable, substantial condition, and in good order and repair. (4) The grantee shall maintain a force of one or more resident agents or employees at all times and shall have sufficient employees to provide safe, adequate and prompt service for its facilities. Section 18. Conditions of Street Occupancy. (1) Grantee shall use poles erected and maintained by Pacific Power & Light Company and by Pacific Northwest Bell Telephone Company whenever practicable and when- ever agreements with said companies so permit. All transmission and distribution structures, lines and equipment erected by the grantee 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 who join any of the said streets, alleys or other public ways and places. -13- (2) In case of disturbance of any street, sidewalk, alley, public way, or paved area, the grantee shall, at its own cost and expense and in a manner approved by the City replace and restore such street, sidewalk, alley, public way, or paved area in as good a condition as before the work involving such disturbance was done. (3) If at any time during the period of this franchise the City shall lawfully elect to alter or change the grade of any street, sidewalk, alley, or other public way, the grantee, upon reasonable 'notice by the City, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at its own expense. (4) Any poles or other fixture placed in any public way by the grantee shall be placed in such manner as not to interfere with the usual travel on such public way. (5) The grantee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes. (6) The grantee shall have the 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 grantee, except that at the -14- option of the City, such trimming may be done by it or under its supervision and direction at the expense of the grantee. (7) In all sections of the City where the cables, wires, or other like facilities of public utilities are placed underground, the grantee shall place its cables, wires or other like facilities underground. (8) Where telephone, power and /or light utility com- panies are compensated by property owners for part or all of the cost of relocating facilities underground by the local improvement district method or otherwise, grantee shall be entitled to receive from said utility or the property owners as the case may be a comparable portion of its undergrounding costs, as a condition to relocating its facilities underground. (9) Copies of all agreements for joint use of poles and facilities with other utilities shall be filed with the City. Section 19. Removal of Facilities Upon Request. Upon termination of service to any subscriber, the grantee shall promptly remove all its facilities and equipment from the premises of such subscriber upon his request. Section 20. Theft of Services and Tampering. (1) No person, whether or not a subscriber shall willfully and maliciously damage or cause to be damaged any wire, cable, conduit, apparatus, appurtenance, or equipment of the grantee within the City, or commit any act with intent to tap, tamper with or otherwise connect any wire or device to a wire, cable, conduit, apparatus, appurtenance or equipment of the grantee to obtain any programming from the cable communications system without authorization from the grantee or commit any act with -15- intent to cheat or defraud the grantee of any lawful charge to which it is entitled. (2) Whoever shall violate any provision of this Section shall be guilty of a misdemeanor and shall be liable to a penalty of not less than One Hundred ($100.00) Dollars 411 for a first offense and not less than Five Hundred ($500.00) Dollars nor more than One Thousand ($1,000.00) Dollars for a second and every subsequent offense. The penalties provided in this Section shall be enforced by appropriate proceedings instituted by the City or the grantee. Section 21. Preferential or Discriminatory Practices Prohibited. (1) The grantee shall not, as to rates, charges, service, service facilities, rules, regulations, or in any other thing or action, make or grant any undue preference or advantage to any person, nor subject any person to prejudice or disadvantage. (2) The grantee shall not discriminate against any person in any condition of, or opportunity for employ- ment because of sex, race, creed, color or national origin. The grantee shall take appropriate affirmative actions to ensure applicants and employees are treated without regard to their sex, race, creed, color or national origin. Section 22. Transfer of Franchise. The grantee shall not lease, assign or otherwise alienate this franchise without prior approval of the City being granted by ordinance for that purpose, and no rule of estoppel shall ever be invoked against the City in case it shall assert the invalidity of any attempted transfer in violation of this provision. r -16- _ _ _ Section 23. Transactions Affecting Ownership of Facilities. (1) The grantee shall not make, execute, or enter into any deed, deed of trust, mortgage, conditional sales contract, or any loan, lease, pledge, sale, gift or similar agreement concerning any of the facilities and property, real or personal, of the CATV business with- out prior approval of the City Council upon its deter- mination that the transaction proposed by the grantee will not be inimical to the rights of the City under this franchise. PROVIDED, this section shall, not apply to the disposition of worn out or obsolete facilities or personal property in the normal course of carrying on the cable communications system business. (2) Except as provided for in subsection (1) above, . the grantee shall at all times be the full and complete, owner of all facilities and property, real and personal, of the cable communications system business. Section 24. Change of Control of Grantee. No transfer of control of the cable communications system shall take place without the prior approval of the City Council. The word "control" as used herein includes either acquisition of more than a thirty (30) percent interest in the grantee's stock membership within any consecutive period of thirty -six (36) months or actual working control in whatever manner exercised. By its acceptance of this franchise the grantee specifically grants and agrees that any such transfer occurring without prior approval of the City Council shall constitute a violation of this franchise by the grantee. The City Council reserves the right to make reasonable changes in the franchise as a condition precedent to approving a change of control. • -17- Section 25. Filings and Communications with Regulatory Agencies. Copies of all petitions, applications and communica- tions submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdic- tion in respect to any matters affecting the cable communications system operations authorized pursuant to this franchise, shall also be submitted simultaneously to the City unless the grantee receives written notice from the City the waiver of or variance from the requirements of this section. Section 26. City Rights in Franchise. (1) The right is hereby reserved to, the City or the City Council to adopt, in addition to the provisions contained herein and in existing applicable ordinances, 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 reason- able and not in conflict with the rights herein granted. (2) The City shall have the right to make reasonable inspections of books, records, maps, plans, income tax returns, and other like materials of the grantee at any time during normal business hours for the purpose of verifying compliance with the provisions of this fran- chise. (3) The City shall have the right, during the life of this franchise, to install and maintain free of charge upon the poles of the grantee any wire and pole fix- tures necessary for a police or fire alarm system, on the condition that such wire and pole fixtures do not interfere with the cable communications system opera- tions of the grantee. 4I0 -18- • (4) The City shall have the right to supervise all . construction or installation work performed subject to • the provisions of this franchise and make such inspec- tions as it shall find necessary .to insure compliance with the terms of this franchise and other pertinent provisions of law. (5) At the expiration of the term for which this franchise is granted, or upon its termination and cancellation, as provided for herein, the City shall have the right to require the grantee to remove at its own expense all portions of the cable communications system from all public ways within the City. • (6) The City shall have the right by ordinance to amend this franchise when necessary to require or enable the grantee to take advantage of any- develop- ments.in cable communications systems. This paragraph shall not be construed to require the City to make any . amendment. Section 27. Maps, Plats and Reports. (1) The grantee shall file with the City Clerk true and accurate maps or plats of' all existing and proposed installations. • (2) The - grantee shall file annually with the City Clerk not later than sixty days after the end of the grantee's fiscal year, copies of its reports to its stockholders (if it prepares such reports)_, an income statement applicable to its operations during the preceding 12 months period, an audited and certified • balance sheet, and a statement of its properties devoted to cable communications system operations, by categories, giving its investment in such properties on • -19- • • the basis of original cost, less applicable deprecia- tion. These reports shall be prepared or approved by a certified public accountant and there shall be sub- mitted along with them such other reasonable informa- tion as the City Council shall request with respect to lik the grantee's financial condition, ownership, struc- ture, properties and expenses. (3) The grantee shall keep on file with the City Clerk a current list of its stockholders and bondholders. `Section 28. Payment to City. - (1) The grantee shall pay the City an annual amount equal to five percent (5 %) of the gross annual receipts received by the grantee multiplied by the fraction having as its numerator the highest number of sub- scribers of grantee's cable communications system at any time during the computation year within the terri- torial limits of the City of Yakima and as its denominator the highest total number of subscribers of grantee's cable communications system within the City of Yakima and the unincorporated territory of Yakima County for each year of this franchise. This annual payment is for the use of the streets and other facili- ties of the for the operation of the cable communications system and for the municipal supervision thereof. Such payments shall be made in monthly installments, based on grantee revenues for the preceding month. (2) The City shall apportion forty percent (40 %) of the revenues it receives from the grantee for the purposes specified in Section 13. Section 29. Rates. The grantee shall file with the Yakima 1' City Clerk, as a public record., a schedule of installation fees, -20- service charges and any other fee or charge for services to its subscribers. A revised schedule shall be so filed in the event of any change in such fees or charges, and no fee or charge in excess of that specified in the filed schedule , Shall be collected from any subscriber. The City reserves the right to regulate the rates charged by the grantee for its service should the City Council, for any reason, deem it necessary. Section 30. Forfeiture.of Franchise. (1) In addition to all other rights and powers per- taining to the City by virtue of this franchise or otherwise, the City reserves the right to terminate and cancel by ordinance this franchise and all rights and privileges of the grantee hereunder, in the event that . the grantee: (a) Fails, after reasonable notice in writing given to it by the City, to remedy the violation of any provision of this franchise or any rule, order or determination of the City or City Council made pursuant to this franchise; (b) Becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt; (c). Attempts to transfer or assign any right or obligation under this franchise without prior approval from the City Council or attempts to dispose of any of the facilities or property of its cable communications system business to prevent the City from acquiring same, as provided for herein; (d) Fails to commence construction to upgrade and conform its facilities or to extend its facilities III/ under this franchise as required in Section 5. -21- (e) Fails to disclose or misrepresents a material fact under the terms of this franchise or fails to provide the services promised in its application to the City. (f) Fails to perform any other material and substantial obligation under this franchise. (2) Such termination and cancellation shall be by ordinance duly adopted after ten (10) days notice to the grantee and shall in no way affect any of the City' s rights under this franchise or any provision of law. In the event that such termination and cancella- tion depends upon a finding of fact, such finding of fact as made by the City Council or its representative shall be conclusive. PROVIDED, before this franchise may be terminated and cancelled under this Section, the grantee must be provided with an opportunity to be heard before the City Council. (3) Upon the cancellation by the City, or upon the expiration, of any franchise granted hereunder, the City Council may direct the grantee to operate the system for a period of up to six (6) months if the Council finds such order is necessary to assure con- tinued service to the system' s subscribers and such continued service is in the public interest. The City shall pay the , grantee all reasonable and necessary costs incurred by it during such continuation period. Section 31. Duration and Acceptance of Franchise. (1) This franchise and the rights, privileges, and authority hereby granted shall take effect as provided in Section 33 of this ordinance and shall continue in force and effect for a term of thirteen (13) years lik ending on November 11, 1993, provided that within -22- , „ thirty (30) days after the effective date of this ordinance the grantee shall file with the City Clerk its unconditional acceptance of this franchise, shall promise to comply with and abide by all its provisions, terms, and conditions, and shall pay the City the costs associated with the grantee selection process including election fees, consulting fees and expenses, and the time and materials of City departments in participating in negotiations and staff preparations leading to the City referendum on this ordinance. These costs shall be accounted for and approved by action of the City Council. Grantee shall also pay the city the unique costs to the City associated with this franchise and caused primarily by the franchising process which gives grantee rights to serve within the future territorial limits of the City. These costs include initial expenses incurred in developing and setting up an appropriate system to implement the franchise. The grantee agrees to pay and the City agrees to accept in full settlement of these unique franchising costs a payment in the amount of $36,000 within 30 days of the effective date of this franchise. This payment shall be deposited in the Cable Television Fund of the City and may be temporarily deposited in or with such institutions or invested in such obligations as may now or hereafter be permitted cities of the State of Washington by law and which will mature prior to the date on which the moneys so invested shall be needed. The acceptance and promise required in this paragraph shall be in writing duly executed and sworn to, by or on behalf of the grantee before a notary public or other officer authorized by law to administer oaths. -23_ (2) Should the grantee fail to comply with subsec- tion (1) above, it shall acquire no rights, privileges or authority whatever under this ordinance and franchise. (3) The acceptance of a franchise granted under this ordinance shall be deemed to constitute surrender by 41, the grantee of any right to operate a cable communica- tions system in the City under or by virtue of any cable franchise granted by Yakima County. Section 32. Separability. If any section, subsection, sentence, clause,' phrase, or portion of this ordinance is for any reason held invalid or unconstitutional by any authority 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 33. Effective Date. The franchise hereby granted shall be effective at the time of the formal certification of its approval by a majority of the electors of the City voting hereon at a general or special election as required by law. PASSED BY THE CITY COUNCIL, signed and approved this 2nd day of September , 1980. Lor Mayor' ATTEST: ,40' City Clerk; Signature of Applicant: 11 -24-