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Ord 2093 - Fran Northland Cable -, COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 AN ORDINANCE GRANTING A CABLE TELEVISION FRANCHISE TO NORTHLAND CABLE TELEVISION, INC. AND DECLARING AN EMERGENCY. WHEREAS, Northland Cable Television, Inc. (" Northland"), or one of Northland's affiliates, has provided cable television service to residents of the City of Woodburn (the "City") since July 1982 pursuant to Ordinance No. 1784; and WHEREAS, in a public proceeding affording full participation to the residents of the City, the City Council has determined that (i) Northland has substantially complied with the material terms of its existing franchise and with applicable law, (ii) the quality of Northland's service, including signal quality, response to consumer complaints, and billing practices has been reasonable in light of community needs, (iii) Northland has the financial, legal, and technical ability to continue to provide cable television services to the residents of the City, and (iv) Northland's proposal to meet future cable-related community needs and interests, as expressed in this Ordinance, is reasonable; and WHEREAS, in consideration of the foregoing, the City desires to issue a cable television franchise to Northland, NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. The City hereby grants to Northland a cable television franchise !the "Franchise") pursuant to the authority of and in accordance with the terms and conditions of Ordinance No. 1766, Council Bill No. 652, passed by the City Council of the City on September 21,1981 ("Ordinance 1766") and in accordance with and to be governed by the Cable Communications Policy Act of 1984, Pub. l. No. 98- 549, codified at 47 U.S.C. !i 521 et seq., as the same may be amended from time to time (the "1984 Act," or "Cable Act"). Because Ordinance 1766 provides only the general framework and sets forth only the general terms and conditions of a cable television franchise, the City, in this Ordinance, hereby shall modify certain provisions of Ordinance 1766 as they apply to Northland, and the City hereby sets forth certain additional terms and conditions that shall apply to Northland. In the event of a conflict with or a dispute concerning the terms and conditions of the Franchise granted to Northland by this Ordinance, the 1984 Act and the rules and regulations of the Federal Communications Commission and the terms and conditions of this Page 1 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 __.. .__ ',' .._--.---..______'.~.'"4__ ._..._~..__..'".._"._____,.._,___,..._.,'___ _. Ordinance shall prevail over and control the provisions of Ordinance 1766 and the interpretation and administration of the Franchise. Northland and the City agree that if the City wishes at any time to combine Ordinance 1766 and the Franchise granted to Northland, without materially affecting the material requirements of either document, the parties will cooperate fully to accomplish in a timely manner the combining of the documents, as well as their appropriate official adoption as combined by City ordinance. Section 2. The Franchise granted hereby to Northland shall not be exclusive; provided, however, no cable television franchise or similar grant of authority shall be made by the City to any person or entity (i) on terms and conditions that, taken together and construed in their entirety, are less restrictive or burdensome than those contained in this Ordinance, or (ii) the material provisions of which are not reasonably comparable to those contained in this Ordinance. Section 3. The term of the Franchise granted to Northland shall be ten (10) years, commencing October 20, 1992 and ending October 19, 2002. Section 4. As applied to Northland, the provisions of sections 4{c) of Ordinance 1766 shall be deleted in its entirety and replaced with the following: (C) In the event of termination, the City may purchase or require any successor to Northland's system to purchase Northland's facilities at a cost not to exceed its then equitable price, with a reduction for uncompensated damages incurred by the City in connection with Northland's operation. In order to determine the equitable price of Northland's system as specified above, the following procedure will be followed: (1) Northland and the purchaser each shall select one qualified appraiser experienced in the evaluation of cable communications systems. (2) The two selected appraisers shall select a third appraiser. The three appraisers shall be employed to determine the equitable price of Northland's system. The equitable price shall be such as is agreed upon by two of the three appraisers. The appraisers shall be directed to reach their determination within thirty (30) days. Northland and the purchaser shall each pay fifty percent (500/0) of the cost of employing such appraisers. (3) Upon determination of the equitable price, and upon payment of such sum by the purchaser, Northland shall transfer all rights, titles, and Page 2 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 ". ,_.' ,- ~^. T.... ,'" .._-- ." "".. ~,...-. -'-----.-....-.. --""'-"'--' _. interest in the subject property to the purchaser within thirty (30) days. Section 5. As applied to Northland, all the language following the words "compensation and damages," in section 4{e) of Ordinance 1766 shall be deleted and replaced with the following words: "as if such holding over were a material violation of the Franchise. Section 6. As applied to Northland, the provisions of section 5(j) of Ordinance 1766 shall be deleted in their entirety. Section 7. Notwithstanding anything to the contrary contained in Ordinance 1766, the City hereby approves the encumbrance of the Franchise and the assets of Northland's cable television system and the mortgaging, hypothecation and assignment of same for security purposes in connection with the financing and refinancing, from time to time, of Northland's cable television system and operations within the City of Woodburn. Section 8. Notwithstanding any provisions of Ordinance 1766 to the contrary, Northland shall be required to extend energized cable from any existing terminus of its cable television system to any area within the city limits of the City in which electrical power and telephone utility services are available and the facilities of both such utility companies are located in dedicated public easements to which Northland can gain access without unreasonable monetary expenditures, (i) for aerial construction, in which Northland has received bona fide written requests from no fewer than twelve (12) prospective subscribers along each linear mile of cable to be constructed, or 4 prospective subscribers along each 1/4 mile of cable to be constructed,as measured from the nearest point on the existing cable system; and Oi) for underground construction, in which Northland has received bona fide written requests from no fewer than twenty-four (24) prospective subscribers along each linear mile of cable to be constructed, or 8 prospective subscribers along each 1/4 mile of cable to be constructed, as measured from the nearest point on the existing cable system. Section 9. As applied to Northland, the provisions of the last sentence of section 13(h) of Ordinance 1766 shall be deleted in their entirety. As applied to Northland, the provisions of sections 13(k) and (I) of Ordinance 1766 shall be deleted in their entirety. As applied to Northland, the provisions of section 13(b), (c), (d), and (e) shall be deleted and replaced with the following: (a) Comoliance with FCC Rules and Reaulations. Northland shall design, install, operate and perform tests upon the Cable system in a manner that fully Page 3 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 "_""~M""'"'_'"__""~~"_____"__'__ - complies with the applicable provIsions of the Federal Communications Commission (FCC) Rules and Regulations, Part 76, Subpart K ("FCC Technical Standards"), as now or hereafter constituted. The City shall have the right to enforce the FCC rules and regulations under this Franchise. The City and Northland agree that the City may establish and enforce higher or additional reasonable technical standards, following consultation with Northland, but only to the extent that applicable law and the rules and regulations of the FCC allow. (1) Residential Network, Forward Sianals. The residential network shall be capable of carrying a minimum of 60 standard video television channels and the full FM broadcast band. The combined forward trunk and distribution system shall deliver signals to each subscriber's television receiver that meet or exceed applicable FCC specifications on each and every video channel. (2) Residential Network Reverse Sianals. The reverse channels of the residential network shall have the capability of providing return signals from any subscriber tap to the extreme end of any area of the system which is intended to receive the return signals. The system will be sufficient if for all video signals originating within the system, the signal delivered to the subscriber's television receiver, after being transmitted down a forward channel, meets the specifications of (1) above. (b) Svstem Testina. Northland shall perform all system tests required by the FCC Technical Standards, in the manner prescribed in the rules and regulations of the FCC. In addition, upon written request of the City, in cases where the City has legitimate concerns regarding the cable system's signal quality and performance, Northland shall perform, or cause to be performed, at Northland's own expense, the various tests stipulated in the FCC Technical Standards, in the manner prescribed in the rules and regulations of the FCC. Finally, if the City determines that additional testing of particular areas or particular equipment or particular technical parameters of the system is reasonably required to resolve a subscriber complaint to the City regarding the technical performance of the system at such subscriber's dwelling, then Northland, upon written request of the City, shall perform, at Northland's own expense, such particular tests as are reasonably necessary to provide technical information for resolving the subscriber complaint. (1) Record Keeoing and Citv Insoection. Written records of all system test results performed by or for Northland shall be maintained for a period of no less than 3 years following the date of completion of such Page 4 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 ~__~. . _~"~y--'."""'~ ,.~___.. _. '_____.__..... _ .__~"_ _.._____.._4.~ -' tests, and shall be available for City inspection upon written request, at Northland's local office during normal business hours. Upon written request by the City, written test reports shall be submitted to the City within 30 days following completion of all tests required in this Section. (2) City Witnessina of Tests. For all tests specified in this Section, upon written request of the City to Northland, the City shall be given the opportunity to review and approve test sites in advance. The tests may be witnessed by representatives of the City. In scheduling such tests the parties shall cooperate in developing a mutually agreeable time. (3) City Testina. At any time, at its sole expense and risk the City shall have the right to perform, or cause to be performed, the various tests stipulated in the FCC Technical Standards, in accordance with the designated procedures. During such testing and the calculation of the results thereof, Northland shall be allowed to have representatives present. In scheduling such tests the parties shall cooperate in developing a mutually agreeable time. The City shall defend, indemnify, protect and hold Northland harmless from and against any and all claims, demands, actions, judgments, costs {including without limitation reasonable attorneys' and experts' fees!. losses, expenses, and liabilities of every kind or nature whatsoever which may arise in connection with or result, directly or indirectly, from the City's exercise of its rights pursuant to this Section. (c) Remedies for Failure to Meet Technical Standards. For any test required under this Section 9, if the test indicates that the system fails to meet the FCC Technical Standards, then Northland shall be required to indicate what corrective measures have been taken, and the entire test shall be repeated. If results of a second test indicate failure of the system to meet the technical performance requirements of this Franchise, then the City may apply such remedy or remedies as it deems appropriate, unless the circumstances of the failure are caused by conditions which are beyond Northland's control, as determined and verified by the City. Section 10. As applied to Northland, the provisions of section 16 of Ordinance 1766 shall be deleted in their entirety and replaced with the following: Northland shall provide a mobile emergency power source to be used in the cable television system in the event of a disruption in Northland's normal power source. The mobile emergency power source shall have adequate capacity to Page 5 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 -""-'^-"-~-~-'."-~-~---'. ..... provide temporary power to Northland's headend facilities, satellite earth station, and any single field power supply or processing hub. Section 11. As applied to Northland, the provisions of section 17{b) of Ordinance 1766 shall be amended by adding the following sentence at the end of the section: Northland shall send the notice contained in the foregoing paragraph to each subscriber already receiving cable service at the time that this Franchise goes into effect, who has not yet received the notice, at the earliest possible date, and in no case later than 6 months following the effective date of the Franchise. As it applies to Northland, the provisions of section 17(c) of Ordinance 1766 are deleted in their entirety and replaced with the following: Except as provided below, Northland shall not charge its subscribers for responses made to outage or service-interruption calls, interference or quality- of-service related calls, or other calls of a similar nature (collectively, "Trouble Calls"). Northland shall have the right to charge for Trouble Calls if Northland has made repeated visits to a subscriber's residence for the same or essentially identical problems and Northland has established with reasonable certainty that the subscriber's problem was not caused by the fault of Northland or a defect in Northland's Cable System. As applied to Northland, the last sentence of section 17{d) of Ordinance 1766 is deleted in its entirety. As applied to Northland, the provisions of the first sentence of section 17(g) of Ordinance 1766 shall be amended by replacing the words "human rights" with .. civil rights." The provisions of the second sentence of section 17(g) of the Ordinance shall be deleted in their entirety and replaced with the following: Northland shall not place in any private residence any two-way communications equipment that can be used for subscriber surveillance purposes, nor shall such equipment subsequently be used for subscriber surveillance in any manner, without first obtaining the written consent of the subscriber. As applied to Northland, the provisions of section 17(h) of Ordinance 1766 shall be amended by striking the word "written" in the third line of the first sentence. Page 6 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 ""."-. --."T"...-..-.........".---.....-"...... _. As applied to Northland, the provisions of section 17(i) of Ordinance 1766 shall be deleted in their entirety and replaced with the following: If Northland rebuilds, upgrades, modifies or otherwise undertakes similar construction activities, Northland shall use its best efforts to ensure that the subscribers of the cable system receive continuous, uninterrupted service. If Northland sells or otherwise disposes of its cable system or if the City revokes or fails to renew Northland's Franchise, Northland shall use its reasonable efforts to assist in the transfer of the cable system to a new operator. In the event of a system purchase by the City, or change of ownership, Northland shall cooperate with the City to operate the system for a temporary period, and in maintaining continuity of service to all subscribers. Section 12. As applied to Northland, the provisions of section 19 of Ordinance 1766 shall be deleted in their entirety and replaced with the following: To the extent permitted under the 1984 Act and the rules and regulations of the Federal Communications Commission, as the same may be amended from time to time, the City shall have the authority to regulate Northland's rates and charges to cable television subscribers In the event the City desires to regulate Northland's rates and charges, the City shall develop rules and procedures in accordance with the 1984 Act and the rules and regulations of the Federal Communications Commission and, to the extent reasonably possible, in consultation with Northland. Section 13. As applied to Northland, the provisions of section 20 of Ordinance 1766 shall be deleted in their entirety and replaced with the following: Public. Educational and Governmental Access Channels. (A) Definitions. (1) As used herein, "Public Use" shall mean noncommercial use by the public on a first-come, first-served, nondiscriminatory basis. (2) As used herein, "Educational Use" shall mean noncommercial use by public schools and school districts and not-for-profit educational institutions chartered or licensed by the State of Oregon or an agency or division thereof. Page 7 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 < _. ,..-....... -.....-.-.-.... ,-,"-", -"_.._--~.._,~.~.-......---- - (3) As used herein, "Governmental Use" shall mean noncommercial use by a municipal, county and state government or an agency or division thereof. (4) As used herein, "PEG" shall mean Public, Educational, and Governmental. (B) Desianation of PEG Access Channels. Northland shall designate at least one full-time activated channel for Educational Use and at least one full- time activated channel for Public Use and Governmental Use. From and after January 1, 1994, Northland shall make available and dedicate up to three additional channels for Public and Governmental Use, each of which shall be dedicated at such time as each of the Public and Governmental channels then existing is in use for locally scheduled original programming any five of seven days per week for any consecutive five-hour block of time from noon to midnight during eight consecutive weeks. "Original Programming," for the purposes of this Section, shall mean any video programming in its initial cable cast on the system or in its first, second, or third repeat, provided that one half of such programming shall have been initially produced locally for cablecast on the Woodburn system. "locally Scheduled," for the purposes of this Section, means that the scheduling, selection and/or playback of original programming on a per-program basis is determined by, or in consultation with, or pursuant to the operating procedures of, the access provider designated by the City under this Franchise. It is the intent of the City to allow Northland to place programming of a non-commercial type on unused portions of channels dedicated to Public and Government access use. On all such channels, access programming shall have priority. However, following written request of Northland, the Access Provider may authorize Northland to place suitable, non- commercial programming on the Public and Government access channels. One channel dedicated to Educational Use and at least one channel dedicated to Public and Governmental use shall be provided by Northland throughout the term of this Franchise. If more than one channel for Public and Governmental use is provided under the requirements of this Section, then each such channel shall revert back to the control of Northland at such time as for eight consecutive weeks the channel is not in use for locally scheduled original programming at least 2 hours per day, five days per week. Page 8 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 "m.__' "--T-"'-" ,..-..-..-- -..-,.---..-.'.__-.-___.__......___. - (C) Administration of PEG Access Channels. The use of PEG access channels shall be administered as follows: (1) The Educational Use access channel shall be operated and administered by the Woodburn School District #103 (the "District"). (2) The Public Use and Governmental Use access channels shall be operated and administered by an Access Provider ("Access Provider"), which shall be a committee or commission appointed by the City, or a non-profit corporation designated by the City. (D) Access Services Provided bv Northland. Northland shall provide PEG Access services, under guidelines provided by the Access Provider in consultation with Northland, and reflected in an agreement between the Access provider and Northland (see Section 13{K)) following an ascertainment of community access needs and interests (see Section 13{J)). These services shall include: training in the use of video production, editing and playback equipment; production assistance; community outreach; program promotion; program scheduling and playback; equipment maintenance; equipment check-in and check-out; program scheduling; business management services; and similar services consistent with the guidelines developed by the Access Provider. Northland shall provide a staff person or persons who will be responsible for such staff support as is necessary to accomplish these access services at a level required by the development of the use of the access channels. The staff person or persons shall be made available by Northland a maximum of fifteen (15) hours per week for providing access service staff support. Access services provided by Northland shall be provided under guidelines made by the Access Provider in consultation with Northland. Northland may discharge its responsibilities for providing part or all of these access services by means of a contract for services with the Access Provider or, if the Access Provider prefers, a person designated by the Access Provider. Upon request by the District or the City, Northland will assist in disseminating information concerning programming carried on the PEG access channels by means of a character generated message transmitted on Northland's local origination channel. All PEG access channel programming shall be clearly and conspicuously identified as such. Page 9 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 ._~_.__'_'m."----".",_".'___'_." .__...~. _. ,~_. ___..._.. _. . - (E) No Editorial Control by Northland. Northland shall not exercise any editorial control over the PEG access channels. Northland shall haye no obligation, responsibility or liability for or in connection with the content of any of the programming carried on any portion of the PEG access channels administered and operated by the District or the Access Provider. Northland's obligations, responsibilities and liabilities with respect to the services it provides and/or the operations it undertakes in connection with the PEG access channels shall be strictly limited to the extent of Northland's direct involvement therewith. (F) Eauioment and Fundina for PEG Access Channels. Northland shall within 90 days following the effective date of this Franchise donate to the District the equipment listed below to be used in connection with the Educational Use access channel: Quantity Model Mfr. / Tyoe 1 6340 Scientific Atlanta Modulator On place 6/92) 2 Series III ISS Agile Modulator (in place 6/92) 1 Series III ISS Agile Demodulator (in place 6/92) 1 100 Star Character Generator (in place 6/92) 1 Video Switch (in place 6/92) 1 EVS-3000 Sony Hi-8 Playback Deck Page 10 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 - 1 RME-700 Sony video Edit Controller 1 CCD-V801 Sony Hi -8 Camcorder 1 EVS-3000 Sony Hi-8 Edit Deck 2 CTN1355R Panasonic Color Monitor 1 3221 Bogen Tripod w/ Fluid Head 1 3.7 Meter Charerell Satellite Dish 1 LNB Satellite Receiver 1 K8TB0068 Panasonic VCR (G) In addition to the contribution of the equipment listed above, Northland shall make payments to the City for the sole purpose of securing the purchase, repair and replacement of equipment to be used in connection with the use of the channel{s) reserved on Northland's cable system for Government Use and Public Use. These additional payments shall be made in accordance with the following schedule: (1) Within ninety (90) days of the effective date of this ordinance, the amount of fifty-five thousand dollars ($55,000); and (2) Anniversary of effective date of this ordinance 1 2 3 4 Amount per subscriber $1 $1 $1 $1 Page 11 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 - 5 6 7 8 9 $1 $1 $1 $1 $1 As used in this section, the term "subscriber" shall mean the sum of (a) the number of activated primary cable television hook-ups in each and every residential home and commercial establishment in the geographical service area of the system within the City, and (b) the number derived by dividing (i) the aggregate revenue obtained by Northland from multiple dwelling units, including, without limitation, hotels, motels, apartments, schools, dormitories, etc. in the geographical service area of the system within the City, and commercial establishments, including, without limitation, bars, restaurants, business offices, etc, in the geographical service area of the system within the City, by Oi) the standard service rate charged by Northland to residential cable television subscribers within the City. (H) Public Access Facilities. Northland shall, throughout the term of this Franchise, provide studio facilities for public access use, including production studio, control room, editing room, capability for playback and master control, training facilities, office and meeting room, set storage, equipment check-in and check-out, space for equipment maintenance, and tape storage. The studio facilities shall be conveniently located within the city limits of Woodburn. Northland may meet this obligation in whole or in part by making studio facilities as described above available for public use at its own local origination studio in Woodburn. If Northland chooses to make its own local origination studio available as a means to fulfill its obligation to provide access studio facilities under this Section, then Northland shall allow residents of the City to use Northland's studio and Northland's video equipment to produce programming to be carried on the PEG access channels. Northland may charge reasonable deposit or equipment rental fees for the use of Northland equipment for PEG access purposes, but shall not make any charge for the use of its studio facilities for PEG access purposes; provided that such deposits or fees shall be imposed only to the extent necessary to reasonably ensure equipment safety and return. Northland shall cooperate with the City and the Access Provider to accomplish the functional integration of Northland's equipment and Page 12 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 .-.-.- ._~._...........--.,.-...--_._._~-_.__._--_..~--~- - facilities with equipment purchased by the District, the City or the Access Provider for PEG access use. For its local origination program, Northland may share the use of studio equipment purchased by the Access Provider for PEG access use, under guidelines provided by the Access Provider in consultation with Northland, However, Northland shall ensure that any such shared equipment is regularly maintained in good working order, and replaced as necessary, throughout the term of this Franchise. Northland may impose reasonable rules and regulations pertaining to the use of its studio facilities for access purposes; provided that a) public access use of the studio shall be given priority over any other use after 5:00 PM each day, and at all other times when the studio is not being used for Northland's own local origination productions; b) provision is made for meeting the studio requirements of PEG access as it grows throughout the Franchise term; c) provision is made by Northland for ensuring convenient access to the studio for PEG access production after normal business hours; and c) rules and regulations for studio use for PEG access shall be formed in consultation with the Access Provider. If the requirement of this Franchise to provide access studio facilities is met by Northland through sharing its local origination studio, and if at any time during the Franchise term the Northland studio availability is determined by the City to be inadequate to reasonably fulfill Northland's obligations under this Section 13, then Northland shall provide separate studio facilities for PEG access use. (I) Return Sional Paths. At Northland's expense, Northland shall design, construct and activate (1) a return signal transmission path from the District's administration office to carry signals of the Educational Use access channel to Northland's central electronic control center ("headend"); (2) a return signal transmission path from the Woodburn City Hall to carry signals of the Governmental Use access channel to Northland's headend; and (3) a return signal transmission path to carry signals of the Public Use access channel to Northland's headend from any single location designated by the City of Woodburn that is located within the city limits and reasonably accessible by Northland. All construction for such signal return paths shall be completed within six (6) months of the passage of this Ordinance. Other than as specifically set forth herein, Northland shall have no financial or other obligation or responsibility in connection with the PEG access channels. Page 13 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 .-.. '-"T- .<-.--. -..- >.-----.-..---..---. .,. (Jl Access Provider and Communitv Ascertainment. Within 45 days following the effective date of this Franchise, the City shall establish an Access Provider, whose purpose shall be to provide policy and management oversight of the operation of PEG access in connection with the use of the PEG access channels. Within 4 months following its formation, the Access Provider shall conduct an ascertainment of community access needs and interests in Woodburn (Ascertainment). The purpose of the Ascertainment shall be to educate community members in the possible uses of community access television, and to obtain guidance for the formation of access policy and guidelines concerning such matters as: ongoing access needs in the area of services, channels, equipment and facilities; operational and management guidelines; the budgeting of funds for access; and guidelines for an agreement with Northland (see Section 13(J) for ensuring the provision of access equipment, facilities, channels and services. {Kl AQreement between Northland and the Access Provider. Following the Ascertainment, Northland shall, within 30 days following completion of the Ascertainment and a written request by the City, enter into an agreement with the Access Provider ("Agreement"), which Agreement shall establish the manner in which Northland and the Access Provider shall cooperate to ensure the provision of access facilities, equipment, channels and services to meet community needs and interests over the life of the Franchise. Failure by Northland to enter in good faith into such Agreement in a manner fully reflecting its requirements under this Franchise, or to abide by the material terms of such Agreement, shall constitute a substantial and material violation of the Franchise. If at any time during the term of the Franchise Northland elects to fulfill its obligations for providing access services by a contract for services with the Access Provider or a person designated by the Access Provider, as allowed for in Section 13, then the Agreement with the Access Provider shall contain, or be amended to contain, the requirement and general conditions for such contract for services. (Ll Annual Review Process The Access Provider shall annually review the development of all aspects of PEG access, and report its findings and recommendations to the City. The Access Provider's report may contain recommendations as necessary regarding amounts and sources of funding needed for PEG operations, facilities, equipment, and equipment repair and replacement, in addition to resources specifically provided for in this Franchise. Page 14 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 '_"___'_'"0''' - (M) Access Suooort Not Part of Franchise Fees. The City and Northland agree that Northland's support of access as provided for in this Franchise, whether for channels, equipment, services or facilities, shall not be regarded as franchise fees, nor as payment in lieu of franchise fees. Section 14. As applied to Northland, the provIsions of section 23(e) of Ordinance 1766 shall be amended by adding the following: Notwithstanding the foregoing, Northland shall not be required to secure the prior written approval of the City Director of Public Works for any (il subscriber connections or hook-ups, or modifications thereto, or (ii) bona fide emergency repairs or replacements, of (iii) any construction on private property, provided that such written approval is not required by any other applicable law or regulation. As applied to Northland, the provisions of section 23(i) and section 26(d) of Ordinance 1766 shall be amended by adding the following: Notwithstanding anything to the contrary herein, except in the event of a bona fide emergency, the City shall not undertake any such activities without first providing Northland (i) written notice detailing with specificity the nature of the alleged breach, default or failure to perform, and (ii) a reasonable time period, which in no event shall be less than ten (10) days, in which to effect a cure or to commence such activities as are reasonably designed to effect a cure of such breach, default or failure to perform if the same cannot be cured within such time period. Section 15. As applied to Northland, the provIsions of section 24(a) of Ordinance 1766 shall be amended to require a surety bond in the amount of Sixty Thousand Dollars ($60,000). As applied to Northland, the provisions of section 24{b) of Ordinance 1766 shall be deleted in their entirety. Section 16. During the term of the Franchise granted by this Ordinance, Northland shall pay to the City five percent (5%) of its Gross Revenues. The franchise fee shall be paid quarterly, in arrears, within 20 days following the last day of each fiscal quarter. Page 15 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 - Section 17. As applied to Northland, the provisions of section 26(e) of Ordinance 1766 shall be deleted in their entirety. Section 18. As applied to Northland, the provisions of section 27{j) of Ordinance 1766 shall be deleted in their entirety, and the following substituted: Should a court of competent jurisdiction, the State of Oregon or any agency thereof, the FCC, or any other agency of the federal government require Northland to act in any manner which is inconsistent with any provisions of this Franchise agreement, then the City and Northland shall make a good faith effort to mutually agree upon such reasonable amendments to this Franchise agreement as may be necessary to carry out the full intent and purpose of the Franchise. If no such agreement is possible, and if the Franchise is substantially and materially affected, then either party may terminate the Franchise on the grounds that substantial and material compliance with the original terms of the Franchises has been frustrated by such judicial, state or federal requirement. Section 19. As applied to Northland, the provisions of section 23(f) and section 27(1) of Ordinance 1766 shall be amended by adding the following: The City shall defend, indemnify, protect and save harmless Northland from and against any and all losses and physical damage to property and bodily injury or death to persons which may arise out of or be caused by the City's use of such poles or other facilities of Northland. Section 20. As applied to Northland, the provisions of section 28(e) of Ordinance 1766 shall be deleted in their entirety. Section 21. If any section, sentence, clause or phrase of this Ordinance is for any reason determined to be illegal, invalid, unconstitutional or incapable of being enforced by any rule of law or public policy, all other terms, conditions and provisions of this Ordinance shall nevertheless remain in full force and effect. Section 22. As applied to Northland, new sections 35 - 38 shall be added to Ordinance 1766, as follows: 35. Material Franchise Provisions. Page 16 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 . ..-.-.--,---.-.--.. ...-.-.-----.......-....------ ... (A) The events referred to in the following subsections are regarded by the City to be substantial considerations, material to inducing the City to enter into this Franchise. Upon the occurrence of any of these events, or upon the occurrence of such other event as may be determined by the City under Section 35(8) to violate a material franchise provision, the City may, without limitation, exercise its rights under Section 36 or as set forth elsewhere in this franchise, or such other rights as it may possess; (1) Unless otherwise specified by the City, any failure by Northland or its parent corporations to fully execute and return to the City within 45 days of written request therefor form the City, any undisputed order, contracts, agreement or documents required under this Franchise and requiring Northland's signature or acceptance; (2) The failure to pay compensation to the City for use of the streets under this Franchise; (3) The failure to provide financial support and services for PEG access under Section 13 of this ordinance, or any requirement that such financial support must be credited against compensation payable to the City under Section 17 of this ordinance. (B) The enumeration of particular material franchise provisions in Section 35(A) shall not preclude the City from later identifying other material provisions of this Franchise. 36. Remedies for Franchise Violations. (A) In addition to any rights set out elsewhere in this Franchise, or such other rights as it may possess, and to the extent authorized by law, the City reserves the right at its discretion to apply any of the following remedies, alone or in combination, in the event Northland violates any material provision of the Franchise. In determining which remedy or remedies are appropriate, the City shall consider the nature of the violation, the persons burdened by the violation, the nature of the remedy required in order to prevent further violations, and any other matters the City deems appropriate: (1) Impose monetary penalties not to exceed one thousand dollars ($1,000) per day or per incident, as may be appropriate under the circumstances; Page 17 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 ..."--. '--r--'-'-" ...... ..".-. .. .... -"' ...-.-- ... (2) Require Northland to reduce its rates and charges by such amount or amounts as is reasonable in light of the violation; (3) Require Northland to make payments or refunds to its subscribers or subscriber classes in such amount and on such bases as are reasonable. For purposes of this subsection, subscriber class means any group of actual or potential subscribers identified by Northland on the basis of specified characteristics for the purpose of providing, marketing or establishing any combination or package of cable services, rates or charges, or for the purpose of providing or directing customer services or marketing in any form; or (4) Require Northland to correct or cure the violation prior to any rate increase becoming effective, or otherwise delay consideration of any rate increase request until the violation is corrected or cured. (B) Assessment of Penalties. It is the intent of the City to determine monetary penalties as a reasonable estimate of the damages suffered by the City, whether actual or potential. In any event where Northland fails, neglects or refuses to comply with this Franchise, or any of its terms or provisions, the damages suffered by the City as a result may include, without limitation, increased costs of administration and other damages difficult to measure. Therefore, monetary penalties assessed under Section 36(AH 1) shall be considered liquidated damages. The penalties provided for in this Franchise may be imposed if Northland fails to comply with any material provision of this Franchise. (C) Termination. In addition to other rights and remedies set forth elsewhere in this Franchise, the City may a terminate this Franchise, and all of Northland's rights and privileges pertaining thereto and arising thereunder, in the event that: (1) Northland violates any material provision of this Franchise; (2) A court of competent jurisdiction determines that Northland has practiced any fraud or deceit upon the City; (3) Northland fails to obtain and maintain any permit required by any federal or state regulatory body in order to own and operate the cable system; or (4) Northland fails to maintain the full amount of its performance bond Page 18 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 _._....~-~~_.-.--_.~.._~--~_.._--_...__."~'_._-----~"...............~-.--..- .... as required under the terms of this Franchise. (D) Hearina. Upon the occurrence of one of the events set out above, following 10 days written notice to Northland of the occurrence and the proposed termination and an opportunity for Northland to be heard, the City may by ordinance, resolution or other appropriate document, declare termination. In a hearing of Northland, Northland shall be afforded due process rights as if the hearing were a contested case hearing subject to Oregon law, including the right to cross-examine witnesses and to require that all testimony be on the record. Findings from the hearing shall be written, and shall stipulate the reasons for the City's decision. If a termination is lawfully declared, all rights of Northland shall immediately be divested without a further act upon the part of the City (E) Aooeal. The City's declaration of a termination on written findings shall be subject to Writ of Review filed in the Marion County Circuit Court in accordance with ORS Chapter 34. 37. Notice and Oooortunitv to Cure (A) The City shall give Northland thirty (30) days prior written notice of its intent to exercise any of its right under Section 36, identifying the reasons for such action. (B) If Northland removes or otherwise cures the asserted violation constituting the stated reason within the thirty (30) day notice period, or if cure is not reasonably possible within the thirty (30) day period, Northland initiates good faith efforts satisfactory to the City within the thirty (30) day period to cure the asserted violation constituting the stated reason and the efforts continue in good faith, the City shall not exercise its rights under Section 36. (C) If Northland fails to remove or otherwise cure the asserted violation constituting the stated reason within the thirty (30) day notice period, or if Northland does not undertake and continue efforts satisfactory to the City to remedy the stated reason, then the City may exercise any or all of the remedies available under Section 36 or such other rights as the City may possess. 38. Receivershio. The City shall have the right to revoke and terminate this Franchise one hundred and twenty (120) days after the appointment of a receiver, or trustee, to take over and conduct the business of Northland, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or Page 19 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 - '--r".--"--"" .-.--....-...---.-.- - trusteeship shall have vacated prior to the expiration of said one hundred and twenty (120) days, or unless: (A) Within one hundred and twenty (120) days after his election or appointment, such receiver or trustee shall have been approved by City and shall fully have complied with all the provisions of the Franchise and remedied all defaults thereunder; and (8) Such receiver or trustee, within said one hundred and twenty (120) days, shall have executed an agreement, duly approved by City, as well as the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of the Franchise. Section 23. As applied to Northland, the words "or 'System' or 'Cable System'" shall be added following the term "CATV System" in the first line of section 2{C) of Ordinance 1766; and the following sentence shall be added to the end of section 2(C) of Ordinance 1766: Unless otherwise specified, the terms "System" or "Cable System" in this Franchise shall refer to the cable system operated by Northland in the City of Woodburn . Section 24. As applied to Northland, the provISions of section 2(P) of Ordinance 1766 shall be deleted in their entirety, and replaced with the following: {PI As used herein, the term "Gross Revenues" means any and all compensation in whatever form, from any source, directly or indirectly earned by Northland or any affiliate of Northland or any other person who would constitute a cable operator of the cable system under the Cable Act, derived from the operation of the cable system insofar as such operation in any manner requires use of the public streets and rights of way in the city limits of the City of Woodburn. Amounts identified by the City as franchise, copyright, or other license fees, shall not be excluded from Gross Revenues. Gross Revenues shall include but not be limited to basic and pay service revenues, revenues from installation and equipment rental and sale, and any leased access revenues. Gross Revenues shall also include a pro-rata percentage of local and regional advertising revenues based on subscriber count, except during any period in which Northland is actively producing and cable casting on the cable system in Woodburn a local news program of Woodburn area news. Gross Revenues shall not include any taxes on services furnished by Northland, Page 20 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 - ---r.---.----- ....,..-., which taxes are imposed directly on a subscriber or user by a City, County, State or other governmental unit, and collected by Northland for such entity. Gross Revenues shall not include amounts which cannot be collected by Northland and are identified as bad debt; provided that if amounts previously representing bad debt are collected, then those amounts shall be included in Gross Revenues for the period in which they are collected. Amounts included in Gross Revenues shall not be counted more than once; therefore, revenues of both Northland and an affiliated entity that represent a transfer of funds between Northland and the affiliated entity, and that would otherwise constitute Gross Revenues of both Northland and the affiliated entity, shall be counted only once for purposes of determining Gross Revenues. Section 25. Ooen Records and Reoorts. (A) Northland shall maintain a business office within the City for managing Northland's cable system. Northland shall manage all of its operations in accordance with a policy of keeping its records open and accessible to the City. The City shall have the right to inspect all records of Northland and affiliated entities relating to Northland's operations under this Franchise, including, but not limited to, income tax returns, financial statements, service complaints, logs, performance test results and other materials, at any time during normal business hours and upon reasonable notice. Northland shall not deny the City access to Northland's records on the basis that: (1) Northland's records contain trade secrets or are otherwise commercially confidential; or (2) Northland's records are under the control of an affiliated entity, rather than Northland. Northland shall, within ten (10) days of receipt or mailing by Northland, provide copies to the City of any communications to and from any regulatory agency having jurisdiction over Northland pertaining to any alleged, apparent or acknowledged violation by Northland of any applicable rule or law of the agency regarding Northland's provision of cable services under this franchise. (B) Annual Reoorts. Northland shall annually present a written report to the City (the" Annual Report"). Northland shall submit the Annual Report no later than April 15th of each year, following the end of Northland's calendar fiscal year. Except as otherwise provided by City Council by ordinance, the Annual Report shall include information for Northland's operations within the City for Page 21 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 '-""T'-- ....... - the immediately previous year, including but not limited to: (1) System structural and operating information: (a) System ownership, including all levels of parent corporations and related ownership percentages; (b) An organization chart for Northland, listing officers and members of the board of directors, department heads, and supervisors for major activity centers by category; (c) Total cable system mileage and overall homes passes; (d) The number of standard cable subscribers, pay subscribers (by service) and pay-to-basic percentages, along with numbers of other categories of subscribers, such as by tiers, as the City may reasonably require. (e) Cable services provided on the cable system, including services begun or dropped during the previous year; and (f) A schedule of all of Northland's rates and charges. (2) A summary of previous year's activities: (a) Northland's local origination programming activities during the year and activity on Northland's channel designated for local origination programming. (b) Audits and investigations conducted to detect illegal connections and other attempts at unauthorized access to Northland's cable system; (c) Northland's development or incorporation of new technology on the cable system, such as addressability, interactivity, pay-per- event programming, teletext, data communications or other entertainment and non-entertainment services; (d) Marketing and development of leased access channels and usage patterns for such channels, if any; (e) A list of all material petitions, applications, communications, Page 22 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 ..'" '--T'" .--.. ....... . ""--'''.''-''-'''-. - and reports submitted by Northland and its parent corporation to the FCC, the Securities and Exchange Commission or any other federal or state regulatory agency having jurisdiction in respect to any matters affecting Northland's cable services within the City. Northland shall make copies of any such documents and their replies from respective agencies available to the City upon request. (3) Financial Information: (a) Financial statements for Northland Cable Television, Inc. prepared in accordance with generally accepted accounting principles and audited by an independent certified public accountant. Financial statements for Northland's Woodburn area cable system and, separately, for its cable system within the City, prepared in accordance with generally accepted accounting principles. For purposes of this Section, Woodburn area cable system means the regional cable system served by the same headend as the cable system serving the franchise area. A responsible corporate officer shall certify that the financial statements for Northland's cable system within the City are an accurate reflection of the operations of Northland or its affiliated entities, consistent with any attached notes and disclosures. The City reserves the right to require, if good cause exists as reasonably determined by the City, that the financial statements for Northland cable system within the City be reviewed or audited by an independent certified public accountant; the cost of such review or audit shall be borne by Northland if the review or audit reveals underpayment of more than 1 % of the franchise fees required by Section 17, and otherwise by the City. Financial statements for the Woodburn area cable system and for the City shall include a statement of operations and a description of the allocation methodologies a other information as needed to allow proper interpretation of the statements. If Northland makes a significant change in its accounting methods in any year, Northland shall disclose such change and include a restatement of the financial statements submitted in prior years to the extent that such restatement may be required by generally accepted accounting principles. The financial information shall be in sufficient detail to include: (i) Gross Revenues by category, such as basic, pay, pay- Page 23 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 . ---. '--T- ...-...-.-...---..----.. - per-view, advertising, installation, and other miscellaneous revenues; (ii) Operating expenses by category, such as purchased programming services, local origination programming, technical support and maintenance, marketing, management fees, and other general and administrative expenses. Deferred or non-cash expenses shall be separately identified; (iii) Other expenses, such as depreciation and amortization, interest expenses, and income taxes paid and accrued, as applicable; (iv) Capital expenditures by category, such as headend equipment, distribution plant, converters, programming equipment, test equipment, and, buildings and improvement, vehicles or other facilities; (v) Any incurrences or repayment of debt, and remaining outstanding debt by lender or type, including interest rates and future payment terms; (vi) Any contributions from distributions to or other transactions with affiliated entities, in any form; and (vii) Detailed information regarding the amounts paid, and the Grantee's method of accounting for, City franchise fees and utility taxes, including a description of the computation of such fees and taxes, and a reconciliation of Gross Revenues to the computational bases used. (b) A statement of Gross Revenues for Northland's cable system within the City, consistent with the financial statements provided under Subsection 25(B)(3)(a); (c) Forecasts of subscriber numbers and Gross Revenues by category through June 30th of the next year; (d) Planned construction, upgrade or rebuild activity of Northland's cable system within the City for the current year and the projected costs of such activity; and Page 24 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 .... . ^"r--"-' _... -" (e) Northland's annual corporate report, if any, including its audited financial statements. (4) General Reoorts. Northland shall prepare and furnish to the City, at the times and in the form reasonably prescribed by the City, such other reports with respect to its operation, affairs, transaction or property as the City may deem reasonably necessary or appropriate to the performance of the City's rights, functions or duties under this Franchise. (5) Format/Public Hearina. The City, after consultation with Northland, may reasonably specify the form and details of all Northland's reports required under this Franchise. If directed by the City, Northland's annual report, if any, shall be presented at a public hearing at which Northland shall summarize the contents of the annual report and members of the general public may comment thereon. (C) As applied to Northland, the provisions of sections 23(a), 25(d), 25(e) and 27(n) of Ordinance 1766 shall be deleted in their entirety. Section 26. Public Records. Northland acknowledges that information submitted to the City is subject to the Oregon Public Records law, and is open to public inspection. Northland is responsible for becoming familiar with and understanding the provisions of the Oregon Public Records law. Section 27. No Recourse Aaainst Citv. Northland shall have no recourse whatsoever against the City or its officials, boards, commissions, agents or employees for any loss, costs, expense or damage arising out of any provision or requirement of this Franchise or because of the enforcement of this Franchise or in the event this Franchise or any part thereof is determined to be invalid. Section 28. Forum. Any litigation between the City and Northland anslng under or regarding this Franchise shall occur, if in the state courts, in the Marion County Court having jurisdiction thereof, and if in the federal courts, in the United States District Court for the District of Oregon. Section 29. Written Acceotance. (A) On or before thirty days after this ordinance becomes effective, Northland Page 25 - COUNCil Bill NO. 1424 ORDINANCE NO. 2093 ..... --"TO. .,--_.. -... _. shall file with the City Recorder's office a written acceptance and guaranty of this Franchise, duly executed by Northland, in the form attached hereto as Exhibit" A". (B) Failure to File Acceotance. Any failure on the part of Northland to file such written acceptance and guaranty within such time shall be deemed an abandonment and rejection of the right and privileges conferred by this Franchise, and this ordinance shall thereupon be null and void. Section 30. Emeraencv Clause/Effective Date. This ordinance being necessary for the immediate preservation of the public peace, health, and safety, an emergency is declared to exist and this ordinance shall take effect on October 20, 1992 after passage and approv~~r. Approved as to for~: V I. r ~ /0 City Attorney Dat Passed by the Council APPROVED FREr~. ~ ~ October 12, 1992 October 13, 1992 October 13, 1992 Submitted to the Mayor Approved by the Mayor Filed in the Office of the RecC'rd€'r October 13, 1992 ATTEST f1.~ ~ Mary Ten nt, Recorder City of Woodburn, Oregon Page 26 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 ._...- "~-""'-'-" ..~-~_..._. --_..,--_.._.._-,..,-.-.._......_".--~..-"_..---_._.----- - EXHIBIT "A" ACCEPTANCE AND GUARANTY City Recorder City of Woodburn 270 Montgomery Street Woodburn,Oreg.on 97071 This is to advise the City of Woodburn, Oregon (the "City") that Northland Cable Television, Inc. ("Northland") hereby accepts the terms and provisions of Ordinance No. 2093 ,passed by the City Council on October 12 , 1992 (the "Franchise") granting a franchise for ten years to Northland Cable Television, Inc. Northland agrees to abide by each and every term of the Franchise. In consideration for the benefits to be received by Northland under the Franchise and as an inducement to the City to enter into the Franchise, Northland hereby agrees to guarantee performance by its affiliates to whom the Franchise is voluntarily transferred, if so ordered by the City Council, of all of Northland's obligations under the Franchise. ISION, INC. BY: TITLE: \ ~ DATE: ~19lt \'\ ( \'1'17. flr BY: DATE: BY: DATE: Page 27 - COUNCIL BILL NO. 1424 ORDINANCE NO. 2093 . --r- .-.-- "e_.e_ e. __._. _. .- - ._.u.._.