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HomeMy WebLinkAboutOrdinance 87.09 Adopting a cable communications ordinance ORDINANCE NO. 87.09 AN ORDINANCE ADOPTING A CABLE COMMUNICATIONS ORDINANCE WHEREAS the Town of Marana desires to insure that cable television systems and similar cable communications systems within the Town are operated in an orderly manner and for the public benefit; and WHEREAS the Town Council of the Town of Marana, Arizona did, on the 21st day of July, 1987, adopt a Cable Communications Code for the Town of Marana; and WHEREAS the Town Council of the Town of Marana, Arizona has determined that it is necessary for the efficient administration of the Town and its residents to have regulations relating to cable communications. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF MARANA, ARIZONA that the Cable Communications Code for the Town of Marana, as approved by the Marana Town Council on the 21st day of July, 1987, be and the same is hereby adopted by this Ordinance as the Town's formal Cable Communications Code. IT IS FURTHER ORDAINED that any violation of this Ordinance and the Code it incorporates by reference shall constitute a Class 1 Misdemeanor. WHEREAS the immediate operation of this Ordinance is necessary for the preservation of the public peace, health and safety of the Town of Marana, an emergency is hereby declared to exist, and this Ordinance shall be in full force and effect from and after its passage, adoption and approval by the Town Council of the Town of Marana. PASSED AND ADOPTED by the Town Council of the Town of Marana, Arizona this 21st day of July, 1987. ATTEST: MAYOR TOk'N OF MaRANA, ARIZONA CABLE COMMUNICATIONS ORDINANCE September 4, 1g87 ~ I. TITLE This ordinance shall be entitled the Town of Marana Cable Communications Ordinance. II. PURPOSE It is the purpose of this Ordinance to: A. Provide for the granting of licenses to operate cable communications systems in the Town of Marana. B. Provide for the payment of certain fees and other consideration to the Town. C. Promote the widespread availability of high quality cable communications service to residents of the Town of Marana. III. DEFINITIONS: For purposes of this Ordinance the following terms, phrases and their derivations shall mean: °~- Auplicant: Any person that applies for a license. Cable Service: All subscriber services provided b the monthly charge paid by all subscribers, includingeoptional services such as Premium Programming for which a separate charge is made. Cable Television S stem Cable S stem or System: A system, under common ownership or control, of antennas, cables, fiber optics, wires, microwave, lines, towers, waveguides or other conductors, converters, equipment or transmission paths any of which use, cross, or occupy any public right of way, public utility easement or other public property designed and constructed for the purpose of generating, producing, receiving, transmitten distributing and controlling audio, video and othermformsnof electronic or electrical signals. Charm 1= A six (6) megahertz (MHz) frequency band capable of carrying either one standard video signal or a combination of nonstandard signals. Converter: An electronic tuning device which converts transmitted signals to a frequency which permits their reception on an ordinary television receiver. "' Council: The Town Council of the Town of Marana. Equipment: Any manholes, underground conduits, poles, antennas, 2 cables, boxes, pedestals, Wire "` facilities necessary, essential, the cable television system. fixtures, conductors or other used or useful to and operated by FCC: The Federal Communications Commission, its designated representative or its lawful successor. Gross Revenues: All payments received by the licensee from subscribers within the Town for programming services. Installation: The connection of the system from activated feeder lines to subscribers' terminals for the reception cf cable service, -~----._ License: The right and authority to construct, maintain, and operate a cable television system through use of the public streets, public utility easements, other public rights-of-way or public places in the Town. Licensee: The person and the lawful successor assign of said person, granted a license by the Towntransferee, or Person: Any natural person and all domestic and foreign cor or - tions, associations, syndicates, partnershi s p a businesses, trusts, or other legal entities. p d°int van*_ures, Premium Pro£ramminQ: A service or services delivered to sub- scribers over the cable system for a fee or charge over and above the charge for Basic Cable Service. Property of Licensee: All property owned, installed or used within the Town by a licensee in the conduct of its cable tele- vision system business. Resident: Any person residing in the Town yr as otherwise defined by applicable law. Subscriber: Any person lawfully receiving for an service of the licensee's cable television system, y pure°Se any Town: The Town of Marana, a Municipal corporation of the State of Arizona, in its present incorporated form or in any later reorgan- ized, consolidated, enlarged or reincorporated form. Town `;anaQer: The Town Manager of the Town of Marana, Two Way Capability; The technical capacity for the transmission of telecommunications signals of any type or form from subscriber locations or other points throughout the system back to the system's control center or to other points on the system, as well as transmission of signals from the system's control center or another point on the system to any and/or all subscriber loca- tions, 3 Iv. LICENSE REQUIREMENT No person shall construct, install, maintain or operate a cable system or any cable plant including trunk, feeder or drop lines within the Town, unless a license has first been granted and is in full force pursuant to the provisions of this Ordinance. ~. LICENSING PROCEDURE A • Any person or entity desiring to operate a cable tele- vision system in the Town shall a l license- If the Town has not issued aoseparateerequestsfor proposals to solicit such applications, this Ordinance shall be deemed to establish the terms and conditions for submitting such applications, and all applications shall conform hereto. B- Applications for licenses to construct or operate a cable television system in the Town of Marana shall be filed with the Town Manager's office aad shall contain, as a minimum, the following: Hess, and telephonen number dof ethe oapplicantl an1pa f place of busi- entity having an interest of five percent (SZ) or cmo re rinnthe applicant. 2• A statement setting forth any agreements or under_ standings, whether formal or informal, between the applicant and any person who has., may have, or proposes to have an interest with respect to the proposed license or the ownership cable television operation. proposed 3• A statement describing the cable television system Proposed to be constructed or operated by the applicant. 4• A statement describing the financial condition of the applicant and the source of funds which will be used in construction and operating the cable television system. S. A description of the previous experience of the applicant in providing cable television system service and in related or similar fields. 5. A statement by the applicant agreeing to conform to all requirements of Ordinance in the event that the a application for a license is accepted. PPlicant's C. The Town Manager shall not consider any application that does not set forth the information required by Section V B above. The Town Manager, in his sole discretion may request a ditional information from the applicant pertinent to the license application. After receiving all information set forth in Section V B, above, and any other information requested b Manager shall forward the application to the Town Council rithThis 4 recommendation. D• In making a determination as to an a Council may consider the information containedpinithei8n' the Town pplication, the background of the applicant and its owners, the proposed cable television system and construction schedule responsibility of the applicant, the willingness tend abilityiof the applicant to abide by the license agreement, and an y other considerations deemed pertinent by the Council in the interest of the Town. The Town Council shall determine the award of license on the basis of such considerations and wit any titive bidding, Nothing herein shall be deo hout coTpe_ require the granting of any cable television olicenserord to approval of any application in any circumstances the minations to be in the discretion of the Town Council.such deter- E. After consideration by the Town Council but prior to the issuance of a license, a public herrin shall b any application which the Town Councilgproposesetoegrant~Cersuch hearings shall be conducted in accordance with A.R.S. Sec. 9-507.B. VI. LICENSE AGREEMENT A• Upon a decision by the Town Council to grant an a cation, the Town and the licensee shall enter into a license agreement, h`o license shall be effective until agreement is executed, The license agreement shall beh inlacform acceptable to the Town and to the licensee and shall incorporate, and the licensee shall expressly agree to accept and be bound by all terms and provisions of this Ordinance. B. Any cable television license granted by the Town shall be nonexclusive. The Town may at any time grant one or more adds- . tional cable television licenses in accordance with this Ordi- nance. The Town shall not approve or grant any cable television license without requiring the licensee to undertake and perform all of the same duties, obligations, and other requirements as anv prior licensee including, without limitation, those with respect to system capability, construction and maintenance, extension of the system into lower density service areas channels, fees, deposits, and bonds, and inde~mnityvandoinsuran~eal C• No license granted hereunder shall be for a period in excess of twenty years, beginning with the execution of the License Agreement. VII. REGULATION OF FACILITIES AND EQUIPMENT A• Any cable television system pro osed -w° operated in the town of Marana shall meet they follows g tminimum requirements: 5 1- The bandwidth of the cable television system shall be not less than 400 megahertz. 2• The cable television system shall have capability and the ability to provide ewer enc two-way audio portion of 811 channels during a declaredeemer enc the disaster. 8 y or 3• All trunk and feeder lines and single drops shall be placed, either aerially or underground, in the same manner as the electric and telephone utilit licensee shall be responsible for obtaining consentmof ache owners to use poles or an Town. No licensee y other equipment of utilities servin shall erect any pole except as ma g the ably required to fill small y be reason- sgstems and with the prior approvalnofxthe1TownePlanningland Zoning Commission. 4• The cable television system shall be installed and maintained in accordance with accepted er.gineerin shall conform when a g practices and tions of PPlicable to the most recent rules or regula- the Federal Communications Commission and with the National Electrical Safety Code. 5• The licensee shall promptly and completely repair anf and all streets, public ways, rights-of-wa private easements which are disturbed or damageddduring~the construction, operation, maintenance, or reconstruction cable television system at licensee's expense and to the osatise faction of the Town Manager. 5• The licensee shall be solel obtaining any necessar e y responsible for cable y p rmission or authorization to install any line, or other equipment on either property. Permission or authorization to crossuallcor rspecified Property of the Town of Marana may be included in the License Agreement. ~. The licensee shall maintain at all times current route maps showing trunk and distribution lines as Copies of such maps shall be furnished to the Town, installed. B. Any licensee has the right to offer television service to any resident, residence rooPheride cable facility within the Town as now established and as ma Person or at any time hereafter. Each licensee hereunder ehallybeeobligated to offer to provide cable television service to each resident within the Town residin dwelling units g in areas containing not~less than 50 strand Per trench mile (underground construction) or mile (aerial construction), whether or not licensee is offerin to any other area, g provide cable television service in such A licensee shall be relieved of its obligation to offer cable television service pursuant to the preceding sentence onl in areas which become part of the Town as a result of extension y 6 'through annezation or otherrrise;if such area already receives - cable television service provit~-ed by another, company, For purposes of this section, offering cable television service shall include having all equipment necessary to provide cable television service in place and activated. C. The licensee shall maintain an office accessible during normal business hours or have a listed telephone and operate so that complaints and requests for repairs and adjustments can be received. The licensee shall maintain a written record listing the date of customer complaints, identifying the subscriber, and describing the nature of the co,liplaint, which record shall also reflect the date and time responsive action is taken by the licensee. Such record shall be kept at licensee's office and shall be available for inspection during regular business hours. The licensee shall notify each subscriber at the time of such sutscriber's initial subscription service of the procedure for reporting complaints. D. The licensee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. In the event of any question as to whether the licensee is providing adequate cable television service to a resident, the licensee shall demonstrate (by elec- tronic instruments or otherwise) that a signal of adeQuate - strength and Quality is being delivered to an outlet at the residence of the subscriber, E. The licensee shall, in addition to and not in lieu of the above, comply with any service or technical standards established by the FCC pursuant to 47 U.S.C. Sec. 554 (e). The licensee shall conform to 47 U.S.C. Sec. 551, relating to subscriber privacy, and any regulations promulgated thereunder. F. The licensee shall make available, at direct cost (time and material), one service outlet to a conveniently accessible point in each school, non-profit college, or university, and each police station, fire station, or other public facility or building located within the licensee's service area as may be designated by the Town, The monthly charge for service at such locations shall be specified in the License Agreement. G- The Tokn shall not regulate rates or charges for any services provided by a licensee. VIII. NEW CONSTRUCTION A• At each new residential development consisting of more than three units within the Town in which the de•eloper or contractor provides a trench for underground utilities, the licensee shall be allowed to utilize this trench and shall be provided backfill under the same conditions as are eztended to other trench users. 7 .._ B. The licensee shall be apprised of any subdivision reviews where locations of cable end utilities are discussed-prior to the start of residential construction projects. C. The licensee shall conform to the requirements of Article 6.3 of Title 40, Arizona Revised Statutes (sometimes referred to as the "Blue Stake Law" underground facilities. If a portion tofg a olicenseee s ecable television system is damaged, notwithstanding the licensee's compliance with the Blue Stake Law, the licensee shall be excused from service obligations set forth herein for that portion of the system until lice,-,see is compensated in accordance with the Blue Stake Law and such damage is repaired. Repeated or willful failure to comply with the Blue Stake Law shall be grounds for revocation of a license granted hereunder. D• Dwelling units in new developments in which a licensee requests and is refused access to an open or joint trench or requests and is refused access to a multiple dwelling unit building during construction for the purpose of prewiring shall be ezcluded from the number of dwelling units in an area and their occupants from the number of residents in an area for the purposes of Section VII B, above. Refusal of access shall be demonstrated by the licensee. If construction is completed or if the licensee fails to request access to open or joint trenches or to the construction site, such dwelling units shall be considered dwelling units and their occupants residents for the purposes of Section VII B, above, and the licensee shall be obligated to offer to provide service to such residents as provided in Section VII B. I%. FEES, DEPOSITS, AND BONDS The following fees are required for each license granted under the authority of this Ordinance. A• Application Fee: Each application for a license to be granted under the authority of this Ordinance shall be accompanied by a non-refundable filing fee in the amount of $1,000 payable to the Town of Marana. B- License Fee: The licensee shall pay to the Town an amount equal to ~~ of licensee's Gross Revenues from Cable Service. This payment shall be computed quarterly, for the precedin of March 31, June 30, September 30, and December 31 ofgeacheyears Each quarterly payment shall be due and payable no later than 30 days after the relevant computation date. Each payment shall be accompanied by a financial report showing in detail the Gross Revenues from Cable Service of the licensee related to that quarter. C• Performance Bond: Within 30 days after the ezecution of the License Agreement, the licensee shall file with the Town a 8 performance bond for the benefit of the Town in the amount of 5100,000. In the event that licensee fails to comply with an provision of thin Ordinance or the License Agreement, then there shall be recoverable jointly and severally from the principal and surety any and all damages or costs suffered b damages or costs shall include but not be IimitedhtoToattorneyss fees, and cost of any action or proceeding including the full amount of any compensation indemnification, cost of removal or abandonment of any property or other costs due and owing the Town up to the full amount of such bond. ~i) The Bond shall be maintained ~n full as a continuing obligation during the entire term of the License Agreement, ~2) The Bond shall be issued by a surety company authorized to do business in the State of Arizona and shall be in a form approved by the Town. g- TERMINATION - REVOCATION A, Termination: The License shall terminate upon the expiration of its term unless renewed prior to the expiration date. B, Revocation: Sufficient cause for revocation shall exist when the licensee: ~l) Fails to comply with any provision of this Ordinance or the License Agreement. ~2) Makes willful false or misleading statements in any application. (3) Engages in the practice of any fraud or deceit upon the Town or subscribers. (4) Fails to abide by the Privacy provision of this Ordinance. ~S) Fails to make timely payment of say monies due the Town pursuant to this Ordinance. ~6) Fails to commence construction in all required service areas described in Section VII B within 6 months or fails to commence basic service in such required service areas within Z8 months from the effective date of the License Agreement or from the time when the area first meets the requirements in Section VII B, whichever occurs later. C• Appeal of Revocation: The Town shall deliver to the licensee 9 written notice of intent to revoke Betting forth the causes for revocation. A Public Hearing on this revocation shall be held by the Town Council no less than 30 days after issuance of said notice. D. System Disposal: In the event of termination or revocation of a license, the licensee involved shall offer to sell the system, at the fair market value, to a new licensee or a cable for a license. The fair market value shall be determinedain accordance with generally accepted appraisal rocedures. original cost of all tangible and intano P The salvage value, book value, replacement ~a bt e Property, as well as factors will be considered. ~ cas=~ flow, and otI-,er valuation be made for any right ordprlvilecercr nted b s shall any g g y license. Should the licensee fail to negotiate a sale, as described above, the Town nay purchase the system at the fair market value for the purpose of leasing to a qualified operator until a buyer can be found. E. Continuity of Service: The licensee shall provide continuous service for the entire term of the license agreement to all subscribers and users in return for payment of the established rates, fees, and charges. If the licensee seeks to sell or transfer, or if the Town revokes or fails to renew the license, the Iicensee shall continue to operate the system as trustee for its successor in interest until an orderly and lawful change of operation is effected. This period of operation shall not exceed b months from the occurrence of any of the above events. %I. CHANGE OF CONTROL A licensee shall not sell, transfer, assign, exchange or release, or permit the sale, transfer, assignment, exchan a or release of more than 5x of the cumulative ownership of the System without prior written authorization from the Town. The sale of less than fifty one percent of the stock of a licensee shall not be deemed a transfer or assignment, Nothing in this section shall be deemed to prohibit a pledge or hypothecation or mortgage or similar instrument transferring conditional ownership of the system's assets to a lender or creditor in the ordinary course of business, unless such interests shall exceed 75~ of the original cost or the fair market value whichever is higher. %II. INDEMNITY - INSURANCE Each licensee shall, at its sole cost and expense, indemnify, hold harmless, and defend the Town, its officials commissions, agents, and employees, by providing immediate defense against any and all claims, suits, causes of action and judgments for damages arisin ~ Proceedings tenance, or operation of the cable system, of construction, main- 10 -- Each licensee, within 60 days after ezecuting Agreement, shall provide the Town with and maintain in throughout the term of the License Agreement, insurance a company duly authorized to do business in the State o insuring with respect to the installation, construction, and maintenance of the system as follows: a) Liability, comprehensive general and auto- mobile liability coverage including, but not limited to blanket contractual liability, completed operations liability, broad form property damage including but not limited to coverage for explosion, collapse, and under- ground hazard, and automobile non-ownership liability. This insurance shall be written in the following minimum amounts. - for bodily injury, including death: SS00,000 combined single Limit. - property damage: X500,000 combined single limit. - comprehensive automobile liability: bodily injury ~500~pQ0 combined single limit. - ezcess umbrella liability in the minimum amount of X1,000,000. b) Workmen's Compensation coverage as required by the Laws and regulations of the State of Arizona. c) All insurance policies required herein shall include the Town of Marana as a named insured party. d) Licensee shall be solely responsible for all premiums due and payable for insurance required herein. . e) All insurance policies required herein shall be in a form approved by the To~:n and shall include a 60 day notice of cancellation endorsement- IIII. ADMINISTRATION a License full force issued by f Arizona, operation A• Inspection of Rom term of the License Agreementhandoduringenormalhbusinessduring the upon the giving of reasonable notice to examine hours and obtain copies of licensee`s contracts, engineerinaudit, review and 8 Plans, account- 11 ing, financial data, and service records relating to the property and operations of the licensee and to all other records required to be kept pursuant to this Ordinance. B• Licensee Rules and Re ulations: Copies of such rules, regulations, terms and conditions adopted by each licensee for the conduct of its business shall be filed with the Town. ZIV. GENERAL PROVISIONS A. Non-Discrimination: Licensees shall not deny service, access, or otherwise discriminate against subscribers, users, or residents of the Town. A licensee shall comply at all times with all applicable Federal, State, and Town laws, rules and regu- lations, executive and administrative orders relating to non-dis- crimination and equal employment opportunities requirements. B. Laws and Codes: Each licensee shall comply fully with all applicable local, county, state, and Federal laws, codes, rules and regulations. C. Severability: If any provision, sectioa, ara ra h clause or phrase of this Ordinance is for any reason held tto cbe invalid or unconstitutional, such invalidity or unconstitu- tionality shall not affect the validity of the remaining portions of this Ordinance. It is the intent of the Town, in adopting this Ordinance, that no portion or provision shall become inoperative or fail by reason of any invalidity or unconstitutionality of any other portion or provision, and to this end all provisions of this Ordinance are declared to be severable. D. Cumulative Rights and Remedies: All rights and remedies of the Town in this Ordinance are cumulative and map be exercised singly or cumulatively at the discretion of the Tokn. BE IT FURTHER RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF MARANA THAT THE EFFECTIVE DATE OF THIS ORDINANCE SHALL BE 19 TOkN COUNCIL OF THE TOWN OF MARANA By :_ IZ