Title 3
REVENUE AND FINANCE
Chapters:
3.04 PRIVILEGE TAX – ELECTRICAL POWER AND LIGHT BUSINESS
3.04.010 Definitions.
3.04.020 Amount of tax.
3.04.030 Payment.
3.04.040 Exceptions and deductions.
3.04.050 Books of account.
3.04.060 Failure to make return.
3.04.070 Liens.
3.04.080 Waiver of free service.
3.08 SPECIAL FUNDS
3.08.010 Library sinking fund.
3.08.130 Olive E. Manela trust fund – Established.
3.08.140 Olive E. Manela trust fund – City acceptance – Use specified.
3.08.230 Bancroft bonds redemption fund – Created – Deposits and expenditures authorized.
3.14 TRANSIENT ROOM TAX
3.14.010 Title.
3.14.020 Definitions.
3.14.025 Small establishments exempted.
3.14.030 Repealed.
3.14.040 Imposition.
3.14.050 Exemptions.
3.14.060 Operator – Registration.
3.14.070 Operator – Certificate of authority.
3.14.080 Operator – Duties.
3.14.090 Operator – Recordkeeping.
3.14.100 Operator – Collection.
3.14.110 Due date – Returns and payments.
3.14.120 Penalties and interest.
3.14.130 Deficiency determination.
3.14.140 Redetermination.
3.14.150 Security for collection.
3.14.160 Lien.
3.14.170 Refunds.
3.14.180 Examination of records and investigations.
3.14.190 Disclosure of confidential information.
3.14.230 Appeals to City Council.
3.14.240 Enforcement.
3.14.250 Violations – Designated.
3.14.260 Violations – Penalty.
3.16 REFUNDS
3.16.010 Refunds.
3.16.020 Voucher.
3.18 TCI CABLEVISION FRANCHISE
Article I. General Provisions
3.18.010 Short title.
3.18.020 Definitions.
3.18.030 Grant of authority.
3.18.040 Periodic review.
3.18.050 Rules of construction.
3.18.060 Severability and constitutionality.
3.18.070 Commercial impracticability.
Article II. Service
3.18.080 Continuous service.
3.18.090 Emergency repair service.
3.18.100 Justified service.
3.18.110 Extension of service.
3.18.120 Levels of service.
Article III. Construction
3.18.130 Rearrangement of facilities to permit moving of buildings and other objects.
3.18.140 Public works and improvement not affected by franchise.
3.18.150 Control of construction.
Article IV. Use of Public Ways
3.18.160 Excavation and restoration.
3.18.170 Relocation of facilities.
3.18.180 Tree trimming.
3.18.190 Use of poles.
3.18.200 Use of bridges and public places by Franchisee.
3.18.210 Emergency removal and alternate routing of facilities.
Article V. Rules and Regulations
3.18.220 Compliance with laws, rules, and regulations.
3.18.230 Safety standards and work specifications.
3.18.240 Franchisee rules.
3.18.250 Discriminatory practices prohibited.
3.18.260 Sale of subscriber lists prohibited.
3.18.270 Right to inspect books.
3.18.280 Maps.
3.18.290 Reports and records.
3.18.300 Duration, renewal, and renegotiation.
3.18.310 Collection facilities.
3.18.320 Assignment of franchise – Sale of franchise.
Article VI. Insurance, Bonding, and Penalties
3.18.330 Insurance.
3.18.340 Bonds and other surety.
3.18.350 Remedies not exclusive – When requirement waived.
3.18.360 Penalties.
Article VII. Franchise Specifications
3.18.370 Franchise nonexclusive.
3.18.380 Channel capacity.
3.18.390 Rate structure.
3.18.400 Compensation.
3.18.410 Permit and inspection fees.
3.18.420 Special provisions.
3.18.430 Public access programming.
3.18.440 Technical standards.
3.18.450 City right in franchise.
3.18.460 Complaint procedures and inquiries.
3.18.470 Misdemeanors.
3.18.480 Rate regulation.
3.18.490 Force majeure.
3.18.500 Nonlitigation.
3.18.510 Nonenforcement by the City.
3.18.520 Descriptive headings.
3.18.530 Calculation of time.
3.18.540 Written notice.
3.20 QWEST TELEPHONE FRANCHISE
3.20.010 Granted.
3.20.020 Excavations – Compliance required.
3.20.030 Street repair – Expense responsibility.
3.20.040 Improvements – Utility obstruction prohibited.
3.20.050 Cables, wires – Rearrangement – Notice.
3.20.060 Payment.
3.20.070 Other fees and charges.
3.20.080 Reporting of funds.
3.20.090 Compliance with other laws.
3.20.100 Indemnification.
3.20.110 Continuation – Termination.
3.24 BURLINGTON NORTHERN (OREGON-WASHINGTON), INC. FRANCHISE
3.24.010 Granted – Area designated – Laying track.
3.24.020 Communication and power lines and systems.
3.24.030 Excavations.
3.24.040 Operation of cars.
3.24.050 Crossing protective devices.
3.24.060 Repair and maintenance of streets.
3.24.070 Motive power.
3.24.080 Speed limit.
3.24.090 City laying of public utility services.
3.24.100 Term.
3.24.110 Acceptance deadline.
3.28 ALBANY-LEBANON SANITATION COMPANY FRANCHISE
3.28.010 Short title.
3.28.020 Purpose, policy and scope.
3.28.030 Definitions.
3.28.040 Franchise and exceptions.
3.28.050 Franchise term.
3.28.060 Franchise fee.
3.28.070 Franchisee responsibility.
3.28.080 Supervision.
3.28.090 Suspension, modification or revocation of franchise.
3.28.100 Preventing interruption of service.
3.28.110 Termination of service.
3.28.120 Subcontracts.
3.28.130 Rates.
3.28.140 Public responsibility.
3.28.150 Construction.
3.28.160 Penalties for violation.
3.28.170 City enforcement.
3.30 LONG DISTANCE TELECOMMUNICATIONS COMPANY FRANCHISE
3.30.010 Definitions.
3.30.020 Granted.
3.30.030 Communication facilities placement – Excavations.
3.30.040 Public improvements.
3.30.050 Communication facilities removal.
3.30.060 Removal, rearrangement – Communication facilities.
3.30.070 Facilities maintenance.
3.30.080 Indemnification clause.
3.30.090 Franchise fee.
3.30.100 Statement of payment.
3.30.110 Term of franchise.
3.40 AT&T CORP. TELECOMMUNICATIONS FRANCHISE
3.40.010 Franchise granted.
3.40.020 Excavations and construction.
3.40.030 Tree trimming.
3.40.040 Use of poles.
3.40.050 Construction and performance bond – Liability insurance.
3.40.060 Rearrangement of facilities to permit moving of building and other objects.
3.40.070 Street repair – Expense responsibility.
3.40.080 Improvements – Utility obstruction prohibited.
3.40.090 Emergency removal and alternate routing of facilities.
3.40.100 Cables, wires – Rearrangement – Notice.
3.40.110 Compliance with laws, rules and regulations.
3.40.120 Sale of subscriber lists prohibited.
3.40.130 Payment.
3.40.140 Other fees and charges.
3.40.150 Reporting of funds.
3.40.160 Indemnification.
3.40.170 Continuation – Termination.
3.40.180 Forfeiture and remedies.
3.40.190 Severability.
3.40.200 Attorneys’ fees.
3.40.210 Successors and assigns.
3.40.220 Franchise nonexclusive.
3.50 MCI WORLDCOM NETWORK SERVICES, INC.
3.50.010 Franchise granted.
3.50.020 Excavations and construction.
3.50.030 Tree trimming.
3.50.040 Use of poles.
3.50.050 Construction and performance bond – Liability insurance.
3.50.060 Notice of additions.
3.50.070 Street repair – Expense responsibility.
3.50.080 Improvements – Utility obstruction prohibited.
3.50.090 Emergency removal and alternate routing of facilities.
3.50.100 Cables, wires – Rearrangement – Notice.
3.50.110 Compliance with laws, rules and regulations.
3.50.120 Sale of subscriber lists prohibited.
3.50.130 Payment.
3.50.140 Other fees and charges.
3.50.150 Reporting of funds.
3.50.160 Indemnification.
3.50.170 Continuation – Termination.
3.50.180 Forfeiture and remedies.
3.50.190 Severability.
3.50.200 Attorneys’ fees.
3.50.210 Successors and assigns.
3.50.220 Franchise nonexclusive.
3.60 ADVANCED TELECOM, INC., FRANCHISE
3.60.010 Franchise granted.
3.60.020 Excavations and construction.
3.60.030 Tree trimming.
3.60.040 Use of poles.
3.60.050 Construction and performance bond – Liability insurance.
3.60.070 Street repair – Expense responsibility.
3.60.080 Improvements – Utility obstruction prohibited.
3.60.090 Emergency removal and alternate routing of facilities.
3.60.100 Cables, wires – Rearrangement – Notice.
3.60.110 Compliance with laws, rules, and regulations.
3.60.120 Sale of subscriber lists prohibited.
3.60.130 Payment.
3.60.135 Abandonment.
3.60.140 Other fees and charges.
3.60.150 Reporting of funds.
3.60.160 Indemnification.
3.60.170 Continuation – Termination.
3.60.180 Forfeiture and remedies.
3.60.190 Severability.
3.60.200 Attorneys’ fees.
3.60.210 Successors and assigns.
3.60.220 Franchise nonexclusive.
3.70 LIGHTSPEED (LS) NETWORKS FRANCHISE
3.70.010 Franchise granted.
3.70.020 Excavations and construction.
3.70.030 Tree trimming.
3.70.040 Use of poles.
3.70.050 Construction and performance bond – Liability insurance.
3.70.070 Street repair – Expense responsibility.
3.70.080 Improvements – Utility obstruction prohibited.
3.70.090 Emergency removal and alternate routing of facilities.
3.70.100 Cables, wires – Rearrangement – Notice.
3.70.110 Compliance with laws, rules, and regulations.
3.70.120 Sale of subscriber lists prohibited.
3.70.130 Payment.
3.70.135 Abandonment.
3.70.140 Other fees and charges.
3.70.150 Reporting of funds.
3.70.160 Indemnification.
3.70.170 Continuation – Termination.
3.70.180 Forfeiture and remedies.
3.70.190 Severability.
3.70.200 Attorneys’ fees.
3.70.210 Successors and assigns.
3.70.220 Franchise nonexclusive.
Chapter 3.04
PRIVILEGE TAX – ELECTRICAL
POWER AND LIGHT BUSINESS
Sections:
3.04.010 Definitions.
3.04.020 Amount of tax.
3.04.030 Payment.
3.04.040 Exceptions and deductions.
3.04.050 Books of account.
3.04.060 Failure to make return.
3.04.070 Liens.
3.04.080 Waiver of free service.
3.04.010 Definitions.
In construing the provisions of this chapter, the following definitions shall be applied, unless otherwise stated:
(1) “Person” means any company, corporation, association, partnership or individual.
(2) “Taxpayer” means any person subject to the payment of the tax herein provided.
(3) “Electrical power and light business” means the business of selling, at wholesale or retail, electrical energy.
(4) “Gross operating revenue” means revenue accruing from the electrical power business transacted within the corporate limits of the City. In case the taxpayer is a public utility, subject to regulation under the statutes of Oregon, gross operating revenue means that amount required to be credited by the taxpayer to the taxpayer’s operation within the City under the uniform system of accounts prescribed by the regulatory body of the State having jurisdiction. There shall be no deduction for the cost of commodity, cost of materials used, labor, interest, discount, delivery costs and other expenses, unless otherwise provided in this chapter. (Ord. 3404 § 1, 1969).
3.04.020 Amount of tax.
The occupational tax upon the electric light and power business for the privilege of engaging in business within the City is hereby continued. The tax shall be in an amount equal to five percent of the gross revenue of the business during the calendar month next preceding the date of payment of tax, less the deductions and exclusions herein provided. (Ord. 4961 § 1, 1991; Ord. 4884 § 1, 1989; Ord. 3404 § 2, 1969).
3.04.030 Payment.
The tax shall be payable on or before January 31, 1990 for calendar year 1989. On February 20, 1990 the tax for the month of January 1990 shall be paid and shall be paid monthly thereafter on the 20th of each month for the preceding month. The taxpayer shall furnish to the City with each payment a written statement showing the amount of gross revenue of the taxpayer within the City for the period covered by the payment. (Ord. 4884 § 1, 1989; Ord. 3404 § 3, 1969).
3.04.040 Exceptions and deductions.
There shall be excepted and deducted from the total gross operating revenues, revenues derived from the sale of electric energy at wholesale in interstate commerce or from business done with the government of the United States, or any agency thereof, and after deducting therefrom all uncollectible revenues within the City and any amounts paid to the United States or the State of Oregon as excise, occupation or business taxes upon the sale or distribution of electric service in the City. (Ord. 3404 § 4, 1969).
3.04.050 Books of account.
Each taxpayer shall keep books of account which properly reflect the amount of gross operating revenue. The books of account shall be open to the inspection of the City Manager for the purpose of verifying the required amount of tax to be paid. (Ord. 3404 § 5, 1969).
3.04.060 Failure to make return.
If the taxpayer fails to make a return or the City Manager is dissatisfied as to the correctness of the return, the City Manager may fix a time and place for the investigation of the incorrectness of the return, and may, by subpoena, require the taxpayer to produce for investigation such books of account as may be necessary to properly ascertain the amount of tax due. After ascertaining the proper amount of taxes due, the City Manager shall notify the taxpayer of his/her findings. If additional tax is due and is not paid within 10 days after receipt of the notice, the City Manager shall notify the City Attorney to enforce collection of the same. It is unlawful for any person liable to tax hereunder to fail to make a return or to fail to pay the tax when due, or for any person to make any false or fraudulent return or false statement or representations in connection with any such return or to allow or to abet another in any attempt to evade payment of tax or failure to appear and testify in response to a subpoena issued in pursuance hereto, or to testify falsely upon any investigation of the correctness of a return, or in any manner to hinder or delay the City or any of its officers in carrying out the provisions of this chapter. (Ord. 5013 § 1, 1992; Ord. 3404 § 6, 1969).
3.04.070 Liens.
The tax herein assessed shall be a lien against all taxable property of the person located in the City and shall be subject to collection in like manner as liens for special assessments for improvements on property located within the City. (Ord. 3404 § 7, 1969).
3.04.080 Waiver of free service.
The City, by imposing this occupational tax, hereby waives, relinquishes and releases any and all rights it may have under the terms of any existing franchise for free service from any utility engaged in the electrical power and light business within the corporate limits of the City. (Ord. 5013 § 1, 1992; Ord. 3404 § 9, 1969).
Chapter 3.08
SPECIAL FUNDS
Sections:
3.08.010 Library sinking fund.
3.08.130 Olive E. Manela trust fund – Established.
3.08.140 Olive E. Manela trust fund – City acceptance – Use specified.
3.08.230 Bancroft bond redemption fund – Created – Deposits and expenditures authorized.
3.08.010 Library sinking fund.
There is hereby created a fund which shall be known as the “Library Memorial Fund” for the purpose of receiving moneys and making expenditures therefrom which shall be used for the purchase of memorial books to be selected by the librarian or the Library Board. (Ord. 5013 § 1, 1992; Ord. 2826 § 1, 1961).
3.08.130 Olive E. Manela trust fund – Established.
There is established a trust to be known as the “Olive E. Manela Trust.” (Ord. 3849 § 1, 1975).
3.08.140 Olive E. Manela trust fund – City acceptance – Use specified.
The City does accept the devise and bequest of Olive E. Manela with the income from the trust to be used for the purchase of educational, scientific and religious works. The selection of the books and tracts acquired shall be made by the librarian and subject to the approval of the members of the Library Board. (Ord. 3849 § 2, 1975).
3.08.230 Bancroft bond redemption fund – Created – Deposits and expenditures authorized.
(1) There is created a fund which shall be known as the “Bancroft Bond Redemption Fund” for the purpose of receiving money paid on account of installments and interest on unpaid installments and disbursements to satisfy interest and principal due on improvement funds as authorized under ORS 223.285.
(2) The City Recorder is directed to place all money received through Bancroft bonding in the fund herein created, and to make expenditures for interest and principal from the fund. (Ord. 5013 § 1, 1992; Ord. 4122 §§ 1, 2, 1978).
Chapter 3.14
TRANSIENT ROOM TAX
Sections:
3.14.010 Title.
3.14.020 Definitions.
3.14.025 Small establishments exempted.
3.14.030 Repealed.
3.14.040 Imposition.
3.14.050 Exemptions.
3.14.060 Operator – Registration.
3.14.070 Operator – Certificate of authority.
3.14.080 Operator – Duties.
3.14.090 Operator – Recordkeeping.
3.14.100 Operator – Collection.
3.14.110 Due date – Returns and payments.
3.14.120 Penalties and interest.
3.14.130 Deficiency determination.
3.14.140 Redetermination.
3.14.150 Security for collection.
3.14.160 Lien.
3.14.170 Refunds.
3.14.180 Examination of records and investigations.
3.14.190 Disclosure of confidential information.
3.14.230 Appeals to City Council.
3.14.240 Enforcement.
3.14.250 Violations – Designated.
3.14.260 Violations – Penalty.
3.14.010 Title.
The ordinance codified in this chapter shall be known as the “Transient Room Tax Ordinance” of the City. (Ord. 4080 § 1, 1977).
3.14.020 Definitions.
Except where the context otherwise requires, the definitions given in this section govern the construction of the chapter:
(1) “Accrual accounting” means the operator enters the rent due from a transient on his/her records when the rent is earned whether or not it is paid.
(2) “Cash accounting” means the operator does not enter the rent due from a transient on his/her records until rent is paid.
(3) “City Council” means the City Council of the City of Albany, Oregon.
(4) “Hotel” means any structure, or any portion of any structure, which is occupied or intended or designed for transient occupancy for 30 days or less for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodginghouse, roominghouse, apartment house, public or private club, space in mobile home or trailer parks, or similar structure or portions thereof so occupied, provided such occupancy is for less than a 30-day period.
(5) “Occupancy” means the use or possession or the right to the use or possession for lodging or sleeping purposes of any room or rooms in a hotel or space in a mobile home or trailer park or portion thereof.
(6) “Operator” means the person who is proprietor of the hotel in any capacity. Where the operator performs his/her functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purposes of this chapter and shall have the same duties and liabilities as his/her principal. Compliance with the provisions of this chapter by either the principal or the managing agent shall be considered to be compliance by both.
(7) “Person” means any individual, firm, partnership, joint venture, association, social club, fraternal organization, fraternity, sorority, public or private dormitory, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate or any other group or combination acting as a unit.
(8) “Rent” means the consideration charged, whether or not received by the operator, for the occupancy of space in a hotel valued in money, goods, labor, credits, property or other consideration valued in money without any deduction.
(9) “Rent package plan” means the consideration charged for both food and rent where a single rate is made for the total of both. The amount applicable to rent for determination of transient room tax under this chapter shall be the same charge made for rent when consideration is not a part of a package plan.
(10) “Tax” means either the tax payable by the transient or the aggregate amount of taxes due from an operator during the period for which he/she is required to report his/her collections.
(11) “Tax Administrator” means the Finance Director of the City.
(12) “Transient” means any individual who exercises occupancy or is entitled to occupancy in a hotel for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. The day a transient checks out of the hotel shall not be included in determining the 30-day period if the transient is not charged rent for that day by the operator. Any such individual so occupying space in a hotel shall be deemed to be a transient until the period of 30 days has expired, unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the ordinance codified in this chapter may be considered. A person who pays for lodging on a monthly basis, irrespective of the number of days in such month, shall not be deemed a transient. (Ord. 5013 § 1, 1992; Ord. 4851 § 1, 1989; Ord. 4080 § 2, 1977).
3.14.025 Small establishments exempted.
The definition of hotel or motel as set forth in AMC 3.14.020 shall not apply to any structure or collection of units at one location when the total number of units is less than six or when the assessed value of the improvements on the real property is less than $100,000. In order for this exclusion to apply, it shall be necessary for the owner to make application to the Tax Administrator for the exclusion of being exempt from the provisions of AMC 3.14.040. (Ord. 4851 § 1, 1989; Ord. 4421 § 1, 1981).
3.14.030 Administration of funds.
Repealed by Ord. 5275. (Ord. 5121 § 1, 1994; Ord. 4080 § 16(a), 1977).
3.14.040 Imposition.
For the privilege of occupancy in any hotel, on and after July 1, 1999, each transient shall pay a tax in the amount of nine percent of the rent charged by the operator. The tax constitutes a debt owed by the transient to the City, which is extinguished only by payment to the operator or to the City. The transient shall pay the tax to the operator of the hotel at the time the rent is paid. The operator shall enter the tax on his/her records when rent is collected, if the operator keeps his/her records on the cash accounting basis, and when earned if the operator keeps his/her records on the accrual accounting basis. If rent is paid in installments, a proportionate share of the tax shall be paid by the transient or the operator with each installment. If for any reason the tax due is not paid to the operator of the hotel, the Tax Administrator may require that such tax be paid directly to the City. In all cases, the rent paid or charged for occupancy shall exclude the sale of any goods, services and commodities, other than the furnishing of rooms, accommodations, and parking space in mobile home parks or trailer parks. (Ord. 5400 § 1, 1999; Ord. 5121 § 2, 1994; Ord. 5013 § 1, 1992; Ord. 4693 § 1, 1985; Ord. 4080 § 3, 1977).
3.14.050 Exemptions.
No tax imposed under this chapter shall be imposed upon:
(1) Any occupant for more than 30 successive calendar days. A person who pays for lodging on a monthly basis, irrespective of the number of days in such month, shall not be deemed a transient;
(2) Any occupant whose rent is of a value less than $2.00 per day;
(3) Any person who rents a private home, vacation cabin or like facility from any owner who rents such facilities incidentally to his/her own use thereof;
(4) Any occupant whose rent is paid for a hospital room or to a medical clinic, convalescent home or home for aged people. (Ord. 4080 § 6, 1977).
3.14.060 Operator – Registration.
Every person engaging or about to engage in business as an operator of a hotel in the City shall register with the Tax Administrator on a form provided by him/her. Operators engaged in business at the time the ordinance codified in this chapter is adopted must register not later than 30 calendar days after passage of the ordinance codified in this chapter. Operators starting business after the ordinance codified in this chapter is adopted must register within 15 calendar days after commencing business. The privilege of registration after the date of imposition of such tax shall not relieve any person from the obligation of payment or collection of tax regardless of registration. Registration shall set forth the name under which an operator transacts or intends to transact business, the location of his/her place or places of business and such other information to facilitate the collection of the tax as the Tax Administrator may require. The registration shall be signed by the operator. (Ord. 4080 § 7, 1977).
3.14.070 Operator – Certificate of authority.
(1) The Tax Administrator shall, within 10 days after registration, issue without charge a certificate of authority to each registrant to collect the tax from the occupant, together with a duplicate thereof for each additional place of business of each registrant. Certificates shall be nonassignable and nontransferable and shall be surrendered immediately to the Tax Administrator upon the cessation of business at the location named or upon its sale or transfer. Each certificate and duplicate shall state the place of business to which it is applicable and shall be prominently displayed therein so as to be seen and come to the notice readily of all occupants and persons seeking occupancy.
(2) Said certificate shall, among other things, state the following:
(a) The name of the operator;
(b) The address of the hotel;
(c) The date upon which the certificate was issued;
(d) “This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Transient Room Tax Ordinance of the City of Albany by registration with the Tax Administrator for the purpose of collecting from transients the room tax imposed by said City and remitting said tax to the Tax Administrator. This certificate does not authorize any person to conduct any unlawful business or to conduct any unlawful business in any unlawful manner, or to operate a hotel without strictly complying with all local applicable laws including but not limited to those requiring a permit from any board, commission, department or office of the City of Albany. This certificate does not constitute a permit.” (Ord. 5178 § 1, 1995; Ord. 4080 § 7, 1977).
3.14.080 Operator – Duties.
Each operator shall collect the tax imposed by this chapter at the same time as the rent is collected from every transient. The amount of tax shall be separately stated upon the operator’s records, and any receipt rendered by the operator. No operator of a hotel shall advertise that the tax or any part of the tax will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, when added, any part will be refunded, except in the manner provided by this chapter. (Ord. 4080 § 5, 1977).
3.14.090 Operator – Recordkeeping.
Every operator shall keep guest records of room sales and accounting books and records of the room sales. All records shall be retained by the operator for a period of three years and six months after they come into being. (Ord. 4080 § 16(b), 1977).
3.14.100 Operator – Collection.
(1) Every operator renting rooms in the City, the occupancy of which is not exempted under the terms of this chapter, shall collect a tax from the occupant. The tax collected or accrued by the operator constitutes a debt owing by the operator to the City.
(2) In all cases of credit or deferred payment of rent, the payment of tax to the operator may be deferred until the rent is paid, and the operator shall not be liable for the tax until credits are paid or deferred payments are made. (Ord. 5178 § 2, 1995; Ord. 5121 § 3, 1994; Ord. 4693 § 2, 1985; Ord. 4080 § 4(a), (b), (d), 1977).
3.14.110 Due date – Returns and payments.
(1) The tax imposed by this chapter shall be paid by the transient to the operator at the time that rent is paid. All amounts of such taxes collected by any operator are due and payable to the Tax Administrator on a monthly basis on the fifteenth day of the month for the preceding month, and are delinquent on the last day of the month in which they are due.
(2) On or before the fifteenth day of the month following each month of collection, a return for the preceding month’s tax collections shall be filed with the Tax Administrator. The return shall be filed in such form as the Tax Administrator may prescribe by every operator liable for payment of tax.
(3) Returns shall show the amount of tax collected or otherwise due for the related period. The Tax Administrator may require returns to show the total rentals upon which tax was collected or otherwise due, gross receipts of the operator for such period and an explanation in detail of any discrepancy between such amounts and the amount of rents exempt, if any.
(4) After the gross tax has been calculated by the operator, the operator shall retain five percent of the gross tax as compensation for the recordkeeping services provided.
(5) The person required to file the return shall deliver the return, together with the remittance of the amount of the tax due, to the Tax Administrator at his/her office either by personal delivery or by mail. If the return is mailed, the postmark shall be considered the date of delivery for determining delinquencies.
(6) For good cause, the Tax Administrator may extend for not to exceed one month the time for making any return or payment of tax. No further extension shall be granted, except by the City Council. Any operator to whom an extension is granted shall pay interest at the rate of one percent per month on the amount of tax due without proration for a fraction of a month. If a return is not filed and the tax and interest due is not paid by the end of extension granted, then the interest shall become a part of the tax for computation of penalties described elsewhere in this chapter.
(7) The Tax Administrator, if he/she deems it necessary in order to ensure payment or facilitate collection by the City of the amount of taxes in any individual case, may require returns and payment of the amount of taxes for other than monthly periods. (Ord. 5013 § 1, 1992; Ord. 4851 § 1, 1989; Ord. 4727, 1986; Ord. 4080 § 8, 1977).
3.14.120 Penalties and interest.
(1) Original Delinquency. Any operator who has not been granted an extension of time for remittance of tax due and who fails to remit any tax imposed by this chapter prior to delinquency shall pay a penalty of 10 percent of the amount of the tax due in addition to the amount of the tax.
(2) Continued Delinquency. Any operator who has not been granted an extension of time for remittance of tax due and who failed to pay any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 15 percent of the amount of the tax due plus the amount of the tax and the 10 percent penalty first imposed.
(3) Fraud. If the Tax Administrator determines that the nonpayment of any remittance due under this chapter is due to fraud or intent to evade the provisions thereof, a penalty of 25 percent of the amount of the tax shall be added thereto in addition to the penalties stated in subsections (1) and (2) of this section.
(4) Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of one-half of one percent per month or fraction thereof without proration for portions of a month on the amount of the tax due, exclusive of penalties, from the date on which the remittance first became delinquent until paid.
(5) Penalties Merged with Tax. Every penalty imposed and such interest as accrues under the provisions of this section shall be merged with and become part of the tax required in this chapter to be paid.
(6) Petition for Waiver. Any operator who fails to remit the tax levied in this chapter within the time stated in this chapter shall pay the penalties stated in this chapter; provided, however, the operator may petition the City Council for waiver and refund of the penalty or any portion thereof, and the City Council may, if a good and sufficient reason is shown, waive and direct a refund of the penalty or any portion thereof. (Ord. 4851 § 1, 1989; Ord. 4080 § 9, 1977).
3.14.130 Deficiency determination.
(1) Computation. If the Tax Administrator determines that the returns are incorrect, he/she may compute and determine the amount required to be paid upon the basis of the facts contained in the return or returns or upon the basis of any information within his/her possession or that may come into his/her possession. One or more deficiency determinations may be made of the amount due for one or more than one period, and the amount so determined shall be due and payable immediately upon service of notice as provided in this chapter after which the amount determined is delinquent. Penalties on deficiencies shall be applied as set forth in AMC 3.14.120.
(2) Underpayments. In making a determination, the Tax Administrator may offset overpayments, if any, which may have been previously made for a period or periods against any underpayment for a subsequent period or periods, or against penalties and interest on the underpayments. The interest on underpayments shall be computed in the manner set forth in AMC 3.14.120.
(3) Service of Notice. The Tax Administrator shall give to the operator or occupant a written notice of his/her determination. The notice may be served personally or by mail. If served by mail, the notice shall be addressed to the operator at his/her address as it appears in the records of the Tax Administrator. In case of service by mail of any notice required by this chapter, the service is complete at the time of deposit in the United States Post Office.
(4) Time Limit. Except in the case of fraud or intent to evade this chapter or authorized rules and regulations, every deficiency determination shall be made and notice thereof mailed within three years after the last day of the month following the close of the monthly period for which the amount is proposed to be determined or within three years after the return is filed, whichever period expires the later.
(5) Redemption Petition. Any determination shall become due and payable immediately upon receipt of notice and shall become final within 10 days after the Tax Administrator has given notice thereof; provided, however, the operator may petition redemption and refund if the petition is filed before the determination becomes final as provided in this chapter.
(6) Fraud, Refusal to Collect, Evasion. If any operator fails or refuses to collect said tax or to make, within the time provided in this chapter, any report and remittance of said tax or any portion thereof required by this chapter, or makes fraudulent return or otherwise wilfully attempts to evade this chapter, the Tax Administrator shall proceed in such manner as he/she may deem best to obtain facts and information on which to base an estimate of the tax due. As soon as the Tax Administrator has determined the tax due that is imposed by this chapter from any operator who has failed or refused to collect the same and to report and remit said tax, he/she shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. In case such determination is made, the Tax Administrator shall give a notice in the manner described in this chapter of the amount so assessed. Such determination and notice shall be made and mailed within three years after discovery by the Tax Administrator of any fraud, intent to evade or failure or refusal to collect said tax, or failure to file the return. Any determination shall become due and payable immediately upon receipt of notice and shall become final within 10 days after the Tax Administrator has given notice thereof; provided, however, the operator may petition redemption and refund if the petition is filed before the determination becomes final as provided in this chapter.
(7) Operator Delay. If the Tax Administrator believes that the collection of any tax or any
amount of tax required to be collected and paid to the City will be jeopardized by delay, or if any determination will be jeopardized by delay, he/she shall thereupon make a determination of the tax amount required to be collected, noting the fact upon the determination. The amount so determined as provided in this chapter shall be immediately due and payable, and the operator shall immediately pay the same determination to the Tax Administrator after service of notice thereof; provided, however, the operator may petition after payment has been made for redemption and refund of such determination, if the petition is filed within 10 days from the date of service of notice by the Tax Administrator. (Ord. 5013 § 1, 1992; Ord. 4080 § 10, 1977).
3.14.140 Redetermination.
(1) Any person against whom a determination is made under AMC 3.14.130 or any person directly interested may petition for a redetermination of redemption and refund within the time required in AMC 3.14.130. If a petition for redetermination and refund is not filed within the time required in AMC 3.14.130, the determination becomes final at the expiration of the allowable time.
(2) If a petition for redetermination and refund is filed within the allowable period, the Tax Administrator shall reconsider the determination and, if the person has so requested in his/her petition, shall grant the person an oral hearing and shall give him/her 10 days’ notice of the time and place of the hearing. The Tax Administrator may continue the hearing from time to time as may be necessary.
(3) The Tax Administrator may decrease or increase the amount of the determination as a result of the hearing, and if an increase is determined, such increase shall be payable immediately after the hearing.
(4) The order or decision of the Tax Administrator upon a petition for redetermination of redemption and refund becomes final 10 days after service upon the petitioner of notice thereof, unless appeal of such order or decision is filed with the City Council within the 10 days after service of such notice.
(5) No petition for redetermination of redemption and refund or appeal therefrom shall be effective for any purpose unless the operator has first complied with the payment provisions of this chapter. (Ord. 5013 § 1, 1992; Ord. 4851 § 1, 1989; Ord. 4080 § 11, 1977).
3.14.150 Security for collection.
(1) The Tax Administrator, whenever he/she deems it necessary to ensure compliance with this chapter, may require any operator subject thereto to deposit with him/her such security in the form of cash, bond or other security as the Tax Administrator may determine. The amount of the security shall be fixed by the Tax Administrator but shall not be greater than twice the operator’s estimated average monthly liability for the period for which he/she files returns, determined in such manner as the Tax Administrator deems proper, or $20,000, whichever amount is the lesser. The amount of the security may be increased or decreased by the Tax Administrator subject to the limitations provided in this chapter.
(2) At any time within three years after any tax or any amount of tax required to be collected becomes due and payable or at any time within three years after any determination becomes final, the Tax Administrator may bring an action in the courts of this State, or any other state, or of the United States in the name of the City to collect the amount delinquent, together with penalties and interest. (Ord. 5178 § 3, 1995; Ord. 5013 § 1, 1992; Ord. 4080 § 12, 1977).
3.14.160 Lien.
The tax imposed by this chapter, together with the interest and penalties provided in this chapter and the filing fees paid to the Department of Records of Linn County, Oregon, or Benton County, Oregon, and advertising costs which may be incurred when the same becomes delinquent as set forth in this chapter, shall be and, until paid, remain a lien from the date of its recording with the Department of Records of Linn County, Oregon or Benton County, Oregon and shall be superior to all subsequent recorded liens on all tangible personal property used in the hotel of an operator within the City and may be necessary to discharge said lien, if the lien has been recorded with the Department of Records of Linn County, Oregon or Benton County, Oregon. Notice of the lien may be issued by the Tax Administrator or his/her deputy whenever the operator is in default in the payment of said tax, interest and penalty and shall be recorded with the Department of Records of Linn County, Oregon or Benton County, Oregon, and a copy sent to the delinquent operator. The personal property subject to such lien seized by any deputy or employee of the Tax Administrator may be sold by the department seizing the same at public auction after 10 days’ notice, which shall mean one publication in a newspaper published in the City.
Any lien for taxes as shown on the records of the proper county official shall, upon the payment of all taxes, penalties and interest thereon, be released by the Tax Administrator when the full amount determined to be due has been paid to the City and the operator or person making such payment has received a receipt therefor stating that the full amount of taxes, penalties and interest thereon have been paid and that the lien is thereby released and the record of lien is satisfied. (Ord. 5121 § 4, 1994; Ord. 4080 § 13, 1977).
3.14.170 Refunds.
(1) Operator Refunds. Whenever the amount of any tax, penalty or interest has been paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this chapter, it may be refunded, provided a verified claim in writing therefor stating the specific reason upon which the claim is founded is filed with the Tax Administrator within three years from the date of payment. The claim shall be made on forms provided by the Tax Administrator. If the claim is approved by the Tax Administrator, the excess amount collected or paid may be refunded or may be credited on any amounts then due and payable from the operator from whom it was collected or by whom paid, and the balance may be refunded to such operator, his/her administrators, executors or assignees. All refunds shall be charged to the Transient Room Tax Fund set forth in Section 3.14.030.
(2) Transient Refunds. Whenever the tax required by this chapter has been collected by the operator and deposited by the operator with the Tax Administrator, and it is later determined that the tax was erroneously or illegally collected or received by the Tax Administrator, it may be refunded by the Tax Administrator to the transient, provided a verified claim in writing therefor stating the specific reason on which the claim is founded is filed with the Tax Administrator within three years from the date of payment. All refunds shall be charged to the transient room tax fund set forth in Section 3.14.030. (Ord. 4080 § 14, 1977).
3.14.180 Examination of records and investigations.
The Tax Administrator or any person authorized in writing by him/her may examine during normal business hours the books, papers and accounting records relating to room sales of any operator after notification to the operator liable for the tax and may investigate the business of the operator in order to verify the accuracy of any return made or, if no return is made by the operator, to ascertain and determine the amount required to be paid. (Ord. 5013 § 1, 1992; Ord. 4080 § 16(c), 1977).
3.14.190 Disclosure of confidential information.
It is unlawful for the Tax Administrator or any person having an administrative or clerical duty under the provisions of this chapter to make known in any manner whatever the business affairs, operations or information obtained by an investigation of records and equipment of any person required to obtain a transient occupancy registration certificate or pay a transient occupancy tax, or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures or any particular thereof set forth in any statement or application, or to permit any statement or application, or copy of either, or any book containing any abstract or particulars thereof to be seen or examined by any person; provided that nothing in this section shall be construed to prevent:
(1) The disclosure to or the examination of records and equipment by another City official, employee or agent for collection of taxes for the sole purposes of administering or enforcing any provisions of the chapter or collecting taxes imposed under this chapter;
(2) The disclosure after the filing of a written request to that effect, to the taxpayer himself/herself, receivers, trustees, executors, administrators, assignees and guarantors, if directly interested, of information as to any paid tax, any unpaid tax or amount of tax required to be collected, or interest, and penalties; further provided, however, that the City Attorney approves each such disclosure and that the Tax Administrator may refuse to make any disclosure referred to in this subsection when in his/her opinion the public interest would suffer thereby;
(3) The disclosure of the names and addresses of any persons to whom transient occupancy registration certificates have been issued;
(4) The disclosure of general statistics regarding taxes collected or business done in the City. (Ord. 4080 § 16(d), 1977).
3.14.230 Appeals to City Council.
Any person aggrieved by any decision of the Tax Administrator may appeal to the City Council by filing a notice of appeal with the Tax Administrator within 10 days of the serving or the mailing of the notice of the decision given by the Tax Administrator. The Tax Administrator shall transmit said notice of appeal, together with the file of said appealed matter, to the City Council, who shall fix a time and place for hearing such appeal. The City Council shall give the appellant not less than 10 days’ written notice of the time and place of the hearing of said appealed matter. Action by the City Council on appeals shall be decided by a majority of the members of the Council present at the meeting where such appeal is considered. (Ord. 5178 § 3, 1995; Ord. 4851 § 1, 1989; Ord. 4080 § 19, 1977).
3.14.240 Enforcement.
The Tax Administrator shall enforce provisions of this chapter and shall have the power to adopt rules and regulations not inconsistent with this chapter as may be necessary to aid in the enforcement. (Ord. 4080 § 4(c), 1977).
3.14.250 Violations – Designated.
It is unlawful for any operator or other person so required to fail or refuse to furnish a supplemental return or other data required by the Tax Administrator or to render a false or fraudulent return. No person required to make, render, sign or verify any report shall make any false or fraudulent report with intent to defeat or evade the determination of any amount due required by this chapter. (Ord. 4080 § 21, 1977).
3.14.260 Violations – Penalty.
Any person wilfully violating any of the provisions of this chapter shall be guilty of a misdemeanor punishable under the general penalty provided for in Chapter 1.04 AMC. (Ord. 5013 § 1, 1992; Ord. 4080 § 22, 1977).
Chapter 3.16
REFUNDS
Sections:
3.16.010 Refunds.
3.16.020 Voucher.
3.16.010 Refunds.
The City Manager, or his/her designee, is authorized to make refunds of payments made to the account of the City when such payments have been made in error or the reason for the payment did not exist and such payment shall be charged against the particular fund receiving the payment. (Ord. 5013 § 1, 1992; Ord. 3575 § 1, 1971).
3.16.020 Voucher.
All refunds authorized by the City Manager as herein provided shall be supported by vouchers signed by the City Manager. (Ord. 3575 § 2, 1971).
Chapter 3.18
TCI CABLEVISION FRANCHISE
Sections:
Article I. General Provisions
3.18.010 Short title.
3.18.020 Definitions.
3.18.030 Grant of authority.
3.18.040 Periodic review.
3.18.050 Rules of construction.
3.18.060 Severability and constitutionality.
3.18.070 Commercial impracticability.
Article II. Service
3.18.080 Continuous service.
3.18.090 Emergency repair service.
3.18.100 Justified service.
3.18.110 Extension of service.
3.18.120 Levels of service.
Article III. Construction
3.18.130 Rearrangement of facilities to permit moving of buildings and other objects.
3.18.140 Public works and improvement not affected by franchise.
3.18.150 Control of construction.
Article IV. Use of Public Ways
3.18.160 Excavation and restoration.
3.18.170 Relocation of facilities.
3.18.180 Tree trimming.
3.18.190 Use of poles.
3.18.200 Use of bridges and public places by Franchisee.
3.18.210 Emergency removal and alternate routing of facilities.
Article V. Rules and Regulations
3.18.220 Compliance with laws, rules, and regulations.
3.18.230 Safety standards and work specifications.
3.18.240 Franchisee rules.
3.18.250 Discriminatory practices prohibited.
3.18.260 Sale of subscriber lists prohibited.
3.18.270 Right to inspect books.
3.18.280 Maps.
3.18.290 Reports and records.
3.18.300 Duration, renewal, and renegotiation.
3.18.310 Collection facilities.
3.18.320 Assignment of franchise – Sale of franchise.
Article VI. Insurance, Bonding, and Penalties
3.18.330 Insurance.
3.18.340 Bonds and other surety.
3.18.350 Remedies not exclusive – When requirement waived.
3.18.360 Penalties.
Article VII. Franchise Specifications
3.18.370 Franchise nonexclusive.
3.18.380 Channel capacity.
3.18.390 Rate structure.
3.18.400 Compensation.
3.18.410 Permit and inspection fees.
3.18.420 Special provisions.
3.18.430 Public access programming.
3.18.440 Technical standards.
3.18.450 City right in franchise.
3.18.460 Complaint procedures and inquiries.
3.18.470 Misdemeanors.
3.18.480 Rate regulation.
3.18.490 Force majeure.
3.18.500 Nonlitigation.
3.18.510 Nonenforcement by the City.
3.18.520 Descriptive headings.
3.18.530 Calculation of time.
3.18.540 Written notice.
Article I. General Provisions
3.18.010 Short title.
This chapter shall be known as the Albany cable franchise ordinance. Within this document, it shall also be referred to as “this franchise” or “the franchise”. (Ord. 5127 § 1.1, 1994).
3.18.020 Definitions.
For the purpose of this chapter, the following terms shall have the meaning given herein:
“Antenna” shall be the tower or device for receiving radio and/or television signals for redistribution through a closed circuit.
“Bridge” includes a structure erected within the City to facilitate the crossing of a river, stream, ditch, ravine, or other place, but does not include a culvert.
“Cable” is the distributing conductor or conductors for the transmission of radio and/or television signals in a closed circuit.
“Cable Act” means the Cable Communications Policy Act of 1984, as amended by the “Cable Television Consumer Protection Act of 1992”.
“Cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment or other communications equipment that is designed to provide cable service to subscribers.
“Cable television system” or “CATV” means (i) the one-way transmission to subscribers of video programming or other programming service, and (ii) subscriber interaction, if any, which is required for the selection of such video programming communication service.
“City” means the City of Albany, Oregon and the area within its boundaries as extended in the future.
“Conduit” is an electrical raceway for the enclosure of electrical conductors and may consist of rigid conduit of electrical metallic tubing or plastic tubing.
“Converter” means an electronic device which converts signals to a frequency not susceptible to interference within the television received of a subscriber and increases the number of channels the subscriber may select.
“Council” means the legislative body of the City.
“Customer,” “user” or “subscriber” means any person or entity lawfully receiving cable service.
“Franchise territory” means the area within the legal boundaries of the City and including any areas annexed during the term of the franchise.
“Franchisee” means TCI Cablevision of Oregon, Inc., an Oregon corporation, its successors, legal representatives or assigns.
“Gross revenues” means any revenue received by the Franchisee from the operation of the cable system in the franchise territory. Gross revenue includes the following: all tiers of programming services, including basic services, installation and connection fees, premium services, and per channel and per event service; equipment rental; audio services; advertising income prorated by the number of Franchisee’s customers in the City compared to the number of customers in the entire advertising area; and Franchisee’s share of all home shopping revenues. Gross revenue shall not include any fees or taxes on cable service which are imposed directly or indirectly on any subscriber thereof by any governmental unit or agency, and which are collected by the Franchisee on be half of such governmental unit or agency.
“May” is permissive.
“Person” includes an individual, corporation, association, firm, partnership and joint stock company.
“Public place” includes any City-owned park, place, facility or grounds within the City that is open to the public, but does not include a street or bridge.
“Street” includes the surface, the air space above the surface, and the area below the surface of any public street, alley, avenue, road, boulevard, thoroughfare, or public highway, other public right-of-way, including public utility easements, but does not include a bridge or public place.
“Shall” is mandatory.
“Technical facilities” or “facilities” means all real property, equipment, and fixtures used by Franchisee in the distribution of its services through its system and includes, but is not limited to, poles, conduit, cables, wires, microwave transmitters, antennae, amplifiers, etc. (Ord. 5127 § 1.2, 1994).
3.18.030 Grant of authority.
Subject to the conditions and reservations contained in this chapter, the City grants to Franchisee, the right, privilege and franchise to:
(1) Construct, maintain and operate a cable television system within the City;
(2) Install, maintain and operate on, over, or under the streets, bridges and public places approved by the City, facilities for the transmission of electronic signals to be distributed to the City and to its inhabitants and to other customers and territory beyond the limits of the City; and
(3) Carry on a CATV subscription business for television systems, services and radio and television signal distribution of closed circuit signals. (Ord. 5127 § 1.3, 1994).
3.18.040 Periodic review.
Recognizing that the field of cable communications is ever changing and to help achieve the goal of a continually advanced and modern cable communications system for the City, the Franchisee and the City agree to the following review procedure:
(1) The City reserves the right to adopt rules and regulations controlling the procedures as set forth below and subjects for review sessions. In the absence of any action taken by the City to exercise these rights, Franchisee shall be subject to at least the procedures and subjects described in this section.
(2) All periodic review sessions shall be open to the public and notice of sessions published in a newspaper of general circulation in the City.
(3) Topics which may be discussed at any evaluation session include, but are not limited to, application of new technologies, system performance, programming offered, access channels, facilities and support, municipal uses of cable, customer complaints, amendments to this franchise, judicial rulings, FCC rulings, line extension policies and any other topic the City and Franchisee deem relevant, to the extent that these topics are not subject to current negotiations or confidential under Oregon law.
(4) As a result of a periodic review session, the City and the Franchisee may mutually agree to negotiate modifications or revisions to the franchise; negotiations are confidential under Oregon state or federal law. (Ord. 5127 § 1.4, 1994).
3.18.050 Rules of construction.
This chapter shall be construed liberally in order to effectuate its purposes. Unless otherwise specifically prescribed in this chapter, the following provisions shall govern its interpretation and construction:
(1) 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.
(2) Time is of the essence of this chapter. Franchisee shall not be relieved of its obligation to comply promptly with any provision of this chapter by any failure of the City to enforce prompt compliance with any of its provisions.
(3) Unless otherwise specified in this chapter, any action authorized or required to be taken by the City may be taken by the Council or by an official or agent designated by the Council.
(4) Every duty and every act to be performed by either party imposes an obligation of good faith on the party to perform such. (Ord. 5127 § 1.5, 1994).
3.18.060 Severability and constitutionality.
If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held illegal, invalid, or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. The Council declares that it would have passed the ordinance codified in this chapter and each section, subsection, sentence, clause, and phrase hereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid, or unconstitutional. The invalidity of any portion of this chapter shall not abate, reduce, or otherwise affect any other consideration or obligation required by the Franchisee of any franchise granted hereafter. If any court or governmental agency shall increase the maximum amount that may be required by the Franchisee, then the parties shall negotiate in good faith what the new fee shall be. During the period of negotiations, Franchisee shall continue to pay the City the compensation specified in AMC Section 3.18.400(1). (Ord. 5127 § 1.6, 1994).
3.18.070 Commercial impracticability.
The Franchisee has examined the requirements of this franchise thoroughly and the acceptance hereof constitutes a representation that they have the financial and technical capacity to carry out their obligations stated herein. All services and requirements anticipated by this franchise are commercially practicable at the time of the granting of the franchise. (Ord. 5127 § 1.7, 1994).
Article II. Service
3.18.080 Continuous service.
The Franchisee shall maintain and operate an adequate cable system in the City. The Franchisee shall use due diligence to maintain continuous and uninterrupted service which shall conform at least to the standards common in the business and the standards adopted by the State and Federal authorities, and to standards of the City contained herein which are not in conflict with those adopted by State and Federal authorities. Under no circumstances is the Franchisee liable to the City for an interruption or failure of service caused by acts of God, unavoidable accident, or other circumstance beyond the control of the Franchisee through no fault of its own. (Ord. 5127 § 2.1, 1994).
3.18.090 Emergency repair service.
The Franchisee shall maintain emergency repair service locally on a 24-hour per day, seven-day a week basis. Such emergency service shall be easily reached by phone during normal business hours and through answering service at all other times. (Ord. 5127 § 2.2, 1994).
3.18.100 Justified service.
(1) Activation of Service. Franchisee shall promptly provide service upon request at standard installation rate where the potential subscriber can be served by extension of distribution cable past occupied dwelling units, equivalent to a density of 10 dwelling units per quarter mile of cable contiguous to the already activated system. Such density shall be computed on the basis of dwelling units which can be served on either side of the cable.
(2) The Franchisee shall furnish service under this franchise within City limits whenever there is demand reasonably great enough to justify cost of installing cables and equipment. The City shall have the right to make the determination of the demand, in accordance with the provisions of subsection (1) of this section, but shall give Franchisee 15 days’ notice prior to making the determination; and if the Franchisee fails to comply with the City’s determination, then this franchise may be terminated pursuant to the procedures of AMC Section 3.18.300. (Ord. 5127 § 2.3, 1994).
3.18.110 Extension of service.
(1) Service to Individual Subscribers from Existing System. Where a subscriber can be served from the Franchisee’s existing system without extension of trunk or distribution cable, the Franchisee shall serve the potential subscriber upon request on the following terms and conditions:
(a) The building unit shall be connected to cable at the standard installation charge if the connection can be made with an aerial drop and does not exceed 150 feet.
(b) If the aerial connection drop exceeds 150 feet, the potential subscriber may be charged the actual cost for the distance exceeding 150 feet plus standard installation charge; and Franchisee may request advance payment for each installation.
(c) If the requested installation is to be placed underground, the potential subscriber must pay for furnishing open trench, as specified by the Franchisee, backfilling, and restoring the property to its original condition. Franchisee may request advance payment for such work.
(d) The Franchisee shall arrange for all necessary easements over or under private property. Any easement for such use which has already been granted to a telephone or other utility company shall, to the extent possible, be interpreted so as to grant the Franchisee the same rights and privileges as have been granted to the telephone or other utility company. In such easements, the words “telephone” or “telephone company”, “public utility” and the like shall be interpreted to include the Franchisee, to the extent possible.
(e) Standard installations will be performed within seven business days after an order has been placed on an average 90 percent of the time throughout the year.
(2) Additional Extension of System. In areas not meeting the requirements for mandatory extension of service, Franchisee shall provide, upon request of five or more potential subscribers desiring service, an estimate of costs required to extend service to said subscribers and the amount by which said costs exceed what would be the cost of mandatory extension under this section. Franchisee shall extend service to any such dwelling units upon advance payment (or assurance of payment satisfactory to the Franchisee) of the additional cost. Such payment shall be nonrefundable, and in the event the area subsequently reaches the density required for mandatory extension, such payments shall be treated in full or in part as consideration for early extension of service.
(3) Underground Extension of System.
(a) Installation of System. In cases of new construction or property development where utilities are to be placed underground, the developer or property owner shall give Franchisee reasonable notice of such construction or development, including a copy of any final plat and of the particular date on which open trenching will be available for Franchisee’s installation of conduit, pedestals and/or vaults, and laterals to be provided at Franchisee’s expense. Franchisee shall also provide specifications as needed for trenching.
(b) Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if Franchisee fails to install its conduit, pedestals and/or vaults, and one lateral within two working days of the date the trenches are available, then should the trenches be closed after the two-day period, the cost of new trenching is to be borne by Franchisee.
(c) In those areas and portions of the City where the transmission or distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the Franchisee shall likewise construct, operate, and maintain all of its transmission and distribution facilities underground.
(d) It shall be the policy of the City to encourage all utilities, including Franchisee, to place all existing and future transmission and distribution facilities underground. The Franchisee agrees with this policy and will work with the City and other utilities to implement this policy. (Ord. 5127 § 2.4, 1994).
3.18.120 Levels of service.
(1) Basic Service. Basic service is the lowest tier of service regularly provided to all subscribers that includes the retransmission of local broadcast signals. In no event shall subscribers be required to subscribe to any other service as a condition for obtaining basic service.
(2) Service to Institutions. Upon request, the Franchisee shall make single installations of its cable communications system facilities to each fire and police station, public school, Linn Benton Community College, County Courthouse, City offices, Public Museum and all public libraries within the franchise territory on the terms provided in AMC Section 3.18.380, except no standard installation fee shall be imposed for such installations. No monthly service charge shall be made for distribution of the basic service to these locations. (Ord. 5127 § 2.5, 1994).
Article III. Construction
3.18.130 Rearrangement of facilities to permit moving of buildings and other objects.
(1) Upon seven days’ notice in writing from any person desiring to move a building or other object, the Franchisee shall temporarily raise, lower or remove its facilities upon any street, bridge, or public place with the City, when necessary to permit the person to move the building or other object across or along such street, bridge or public place. The raising, lowering, or removal of the facilities of the Franchisee shall be in accordance with all applicable ordinances and regulations of the City.
(2) The notice required by subsection (1) of this section shall bear the approval of the City Manager, shall detail the route of movement of the building or other objects and shall provide that the actual expense incurred by the Franchisee in making the temporary rearrangement of its facilities, including the cost to the Franchisee of any interruption of service to its customers caused thereby, will be borne by the person giving the notice. It shall further provide that the person giving said notice will indemnify and save said Franchisee harmless from any and all damages or claims of whatsoever kind or nature caused directly or indirectly from such temporary rearrangement of Franchisee’s facilities.
(3) Franchisee, before making the temporary rearrangement of its facilities, may require the person desiring the temporary rearrangement to deposit cash or adequate security, at the option of the person, to secure payment of the costs of rearrangement as estimated by the Franchisee. (Ord. 5127 § 3.1, 1994).
3.18.140 Public works and improvement not affected by franchise.
The City reserves the right:
(1) To construct, install, maintain, and operate any public improvement, work or facility.
(2) To do any work that the City may find desirable on, over, or under any street, bridge or public place.
(3) To vacate, alter or close any street, bridge or public place.
(4) Whenever the City shall excavate or perform any work in any of the present and future streets, bridges and public places of the City of Albany or shall contract or issue permits for such excavation or work where such excavation or work may disturb Franchisee’s underground cables, pipes, conduits and appurtenances, the City shall, in writing, notify Franchisee sufficiently in advance of such contemplated excavation or work to enable Franchisee to take such measures as may be deemed necessary to protect such underground cables, pipes, conduits, and appurtenances from damage and possible inconvenience to the public. In any such case, the Franchisee, upon receiving such notice, shall furnish maps or drawings to the City or contractor, as the case may be, showing the approximate location of all its structures in the area involved in such proposed excavation or other work. (Ord. 5127 § 3.2, 1994).
3.18.150 Control of construction.
The Franchisee shall file with the City maps showing the location of any construction, extension, or relocation of any of the facilities of the Franchisee and shall obtain the City’s approval of the location and plans prior to the commencement of the work. The City may require the Franchisee to obtain a permit before commencing the construction, extension, or relocation of any of its facilities. (Ord. 5127 § 3.3, 1994).
Article IV. Use of Public Ways
3.18.160 Excavation and restoration.
(1) Use. All transmission and distribution structures, lines, and equipment erected by the Franchisee within the City shall be so located as to cause minimum interference with the proper use of streets, bridges, and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the streets, bridges, or other public ways or places.
(2) Prior to making an excavation within any public right-of-way or public easement, the Franchisee shall obtain from the City approval of the excavation and its location.
(3) Unless approved by the city no newly overlaid street or newly constructed street shall be excavated by the Franchisee for a period of five years from the time of completion of the street overlay or the street construction. In any such case, Franchisee shall be excused by the City from extending service if a practical alternate route cannot be found.
(4) All installations by the Franchisee in new residential subdivisions shall be, wherever and whenever practical, laid in conjunction with power and/or telephone cable installations.
(5) Restoration. Except as provided in subsection (3) of this section, when any excavation is made by the Franchisee, the Franchisee shall promptly restore the affected portion of the street, bridge, easement area, or public place to the reasonably same conditions in which it was prior to the excavation. The restoration shall be done in compliance with City specifications, requirements, and regulations in effect at the time of such restoration. If the Franchisee fails to restore promptly the affected portion of the street, bridge, or public place to the same condition in which it was prior to the excavation, the City may make the restoration; and the reasonable costs of making the restoration, including the cost of inspection, supervision, and administration shall be paid by the Franchisee.
(6) The City may require that any excavation made by the Franchisee in any street, bridge, or public place be filled and the surface replaced by the City and that the reasonable cost thereof, including the cost of inspection, supervision, and the administration shall be paid by the Franchisee.
(7) The reasonable costs of excavation and restoration incurred by the City pursuant of subsections (5) and (6) of this section, including the cost of inspection, supervision, and administration shall be paid by the Franchisee to the City in accordance with the standard billing policy of the City in effect at the time the excavation or restoration occurred. (Ord. 5127 § 4.1, 1994).
3.18.170 Relocation of facilities.
(1) Franchisee shall, protect, support, temporarily disconnect or relocate any of its equipment when required to do so by the City by reason of traffic conditions, public safety, street vacation, highway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks, or any other type of structures or improvements by the City.
(2) The cost of such removal or relocation of its facilities shall be paid by the Franchisee, but when such removal or relocation is required for the exclusive convenience or benefit of any person or governmental agency and instrumentality other than the City, Franchisee may be entitled to reimbursement for the reasonable costs thereof from such person, agency, or instrumentality. If the Franchisee fails to comply with any requirement of the City Manager made pursuant to this section within 30 days of written notice, the City may remove or relocate the facilities at the expense of the Franchisee.
(3) The Franchisee shall not place its technical facilities where they will interfere with any gas, electric or telephone fixture, sewer or water facility. All facilities placed in the street shall be placed as the City directs. (Ord. 5127 § 4.2, 1994).
3.18.180 Tree trimming.
(1) Subject to the provisions of this chapter, Franchisee may trim trees when necessary in public rights-of-way for the operation of the lines, wires, cables and antennae or other appurtenances, provided such trimming shall be done by competent employees, agents, or contractors; and it shall be done without cost or expense to the City.
(2) Said tree trimming shall be allowed only after Franchisee makes application and a written permit is approved by the City Manager of the City of Albany or any person appointed by the City Manager to exercise this function. Tree trimming shall be performed in accordance with City ordinances. (Ord. 5127 § 4.3, 1994).
3.18.190 Use of poles.
The City reserves to itself the right at any time to use the poles and other installations of the Franchisee erected or installed under the authority granted in this chapter for any City-owned facilities of whatsoever nature, but it is agreed that such use shall not interfere with the Franchisee’s use thereof, subject to AMC Section 3.18.460. Franchisee shall not be required to own or operate any facilities the City is using if the Franchisee ceases to have a need therefor. (Ord. 5127 § 4.4, 1994).
3.18.200 Use of bridges and public places by Franchisee.
(1) Before the Franchisee may use or occupy any bridge or City facility, the Franchisee shall first obtain permission from the City to do so and comply with any special conditions the City desires to impose on such use or occupation.
(2) The compensation paid by the Franchisee for this franchise includes compensation for the use of bridges and public places located within the City, as authorized. However, this subsection shall not be construed to prevent the City from requiring the Franchisee to pay charges as provided in AMC Section 3.18.410. (Ord. 5127 § 4.5, 1994).
3.18.210 Emergency removal and alternate routing of facilities.
If, at any time, in case of fire or disaster in the franchise territory, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cable, amplifiers or other appurtenances to the system of the Franchisee, such cutting or moving may be done and any repairs rendered necessary thereby shall be made by the Franchisee, at its sole expense, provided that such repairs are not necessitated by a negligent act of the City, in which case costs for repairs shall be borne by the City. The City shall hold the Franchisee, its agents, employees, officers and assigns hereunder harmless from any claims arising out of the City’s cutting or moving of Franchisee’s facilities.
In the event continued use of any street is denied to the Franchisee by the City for any reason, the Franchisee shall provide service to affected subscribers over such alternate routes as shall be determined by Franchisee within a reasonable period of time. (Ord. 5127 § 4.6, 1994).
Article V. Rules and Regulations
3.18.220 Compliance with laws, rules, and regulations.
At all times during the term of this franchise, Franchisee shall comply with all applicable laws, ordinances, rules and regulations of the United States of America, the State of Oregon, and the City of Albany, including all agencies and subdivisions thereof. Franchisee shall be subject to the lawful exercise of the police power of the City of Albany and to such reasonable regulations of general applicability as the City may from time to time hereafter by resolution or ordinance provide insofar as such regulations or ordinances do not materially alter or impair the rights and obligations of Franchisee and are adopted pursuant to the lawful police power of the City. No provision of this franchise shall be construed as a waiver of local, state or federal law, or as a limit of liability. (Ord. 5127 § 5.1, 1994).
3.18.230 Safety standards and work specifications.
(1) Franchisee shall at all times keep and maintain all of its poles, fixtures, conduits, wires, and its entire system in a good state of repair and shall at all times conduct its operations under this franchise, including installation, construction or maintenance of its facilities, in a safe and workmanlike manner so as not to present a danger to the public or the City.
(2) The location, construction, extension, installation, maintenance, removal and relocation of the facilities of the Franchisee shall conform to:
(a) The requirements of the State and Federal statutes and regulations adopted pursuant thereto in force at the time of such work, and
(b) Such reasonable specifications in force at the time of such work, as the City may from time to time adopt.
(3) All installations, rearrangements, removals, lowering or raising of aerial cables or wiring or other apparatus shall be done in conformance with the requirements of the National Electric Safety Code, the laws of the State of Oregon and the ordinances of the City.
(4) For the purpose of carrying out subsections (1) and (2) of this section, the City may provide such specifications relating thereto as may be necessary or convenient for public safety or the orderly development of the City. The City may amend and add to such specifications from time to time. (Ord. 5127 § 5.2, 1994).
3.18.240 Franchisee rules.
The Franchisee shall have authority to promulgate such reasonable rules and regulations governing the conduct of its business as shall be reasonably necessary to enable the Franchisee to exercise its rights and performance obligations under this franchise and to assure uninterrupted services to its customers. Franchisee’s rules and regulations shall be subject to the provisions of this chapter and any other governmental regulations. (Ord. 5127 § 5.3, 1994).
3.18.250 Discriminatory practices prohibited.
Franchisee shall make its services available to all citizens of the City without discrimination and shall not give any person any preference or advantage not available to all persons similarly situated. (Ord. 5127 § 5.4, 1994).
3.18.260 Sale of subscriber lists prohibited.
The Franchisee shall not sell, or otherwise make available any list which identifies subscribers by name or address, to any person, agency or entity, except as needed to maintain current services or implement new services to subscribers in connection with Franchisee’s service. (Ord. 5127 § 5.5, 1994).
3.18.270 Right to inspect books.
The Franchisee shall make available to the City at an office in Oregon current and accurate books of account at an office in Oregon for the purpose of determining the amounts due the City under AMC Section 3.18.400. Upon 48 hours’ notice to Franchisee, the City may inspect the books of account anytime during business hours and may audit the books from time to time as is necessary for the enforcement of this chapter. The Council may require periodic reports from the Franchisee relating to its operations and revenue within the City. If an audit of the books is required to determine that Franchisee has paid the right franchise fee, the cost of such satisfactory independent audit shall be borne fully by the Franchisee, providing they were wrong. (Ord. 5127 § 5.6, 1994).
3.18.280 Maps.
The Franchisee shall provide the City with requested maps drawn to accurate scale to keep the City informed as to the location of all facilities installed in the franchise territory. The maps shall clearly indicate location of trunks and distribution of lines within the public rights-of-way. Location of subscriber service drops in a specified underground area shall be provided promptly by Franchisee upon City’s request. (Ord. 5127 § 5.7, 1994).
3.18.290 Reports and records.
(1) Within 150 days after the close of the Franchisee’s fiscal year, Franchisee shall file with the City the following reports:
(a) Total number of customers at the end of the fiscal year, current penetration, and projected customers for the coming year, all pertaining to the franchise territory.
(b) Number of miles of cable added, deleted or abandoned to the system during the year.
(c) Summary of other additions to the system in terms of increased channel capacity of technological improvement made during the year.
(d) Outline of plans for expansion and improvement of the system in the next fiscal year.
(e) Upon request the financial status of the Franchisee, using an acceptable format or such uniform as may be provided by the state of Oregon. Financial information shall include: balance sheet and income statement. All such reports are to reflect Franchisee’s operations within Oregon. This report shall be signed by an authorized agent of the corporation and an accountant who participated in its preparation or review. This is in addition to notarized statements required in AMC Section 3.18.400(3).
(f) Any other information which may be reasonably required by the City for its performance of duties.
(2) Copies of Reports. Upon request, copies of all petitions, applications, and communications submitted by the Franchisee to the Federal Communications Commission or any other Federal or State regulator, commission, or agency having jurisdiction in respect to any matters relating specifically to operation of the cable communications system authorized pursuant to this franchise shall also be submitted to the City at its request.
(3) Cost of Reports. The cost of preparing and furnishing to the City the records and reports required by this section shall be borne by the Franchisee. (Ord. 5127 § 5.8, 1994).
3.18.300 Duration, renewal, and renegotiation.
(1) Duration and Renewal. This franchise and the rights and privileges granted herein shall take effect 30 days after the date this chapter is passed by the City and remain in effect until March 31, 2006 unless terminated sooner under provisions of subsection (3) of this section, provided, however, that the terms of the franchise must be unconditionally accepted by the Franchisee in writing, signed by an officer of the corporation within 30 days after the date this chapter is passed by the City; and if the Franchisee fails to do so, this chapter shall be void.
(2) Franchise Review.
(a) As need arises, during the term of the franchise, the City shall review the franchise performance, generally, and in particular, the following matter:
(i) Use of channel space, including public access channels and programming, and the need for activation of additional channels as set forth in AMC Section 3.18.430;
(ii) Service extension policies set forth in AMC Section 3.18.110, including, but not limited to, changes in urban service boundaries affecting areas to be served by Franchisee;
(iii) Technical adequacy of the system including, but not limited to, picture quality, two-way transmission capacity, and compliance with standards set forth in AMC Section 3.18.440;
(iv) New technological, regulatory or legal developments affecting the franchise, Franchisee’s operation or City’s regulatory authority hereunder, including changes in FCC authority, rules or regulations; and
(v) The franchise fee.
(b) The Franchisee shall be represented at these meetings by a representative of the corporation authorized to speak on behalf of the head office of the corporation on questions of corporate practice, policy, plans or other matters concerning the cable communications system in the franchise territory.
(3) Termination.
(a) The City reserves the right to terminate this franchise and all rights and privileges thereto, in the event that:
(i) The Franchisee shall substantially default in any of the material terms, covenants, or conditions required to be performed by them or in payment of any sum required to be paid under the terms of this franchise. The following nonexclusive provisions are deemed to be material to the performance of the franchise:
AMC Section
3.18.080 Continuous Service
3.18.120 Levels of Service
3.18.380 Channel Capacity
3.18.400 Compensation
3.18.420 Special Provisions
3.18.440 Public Access Programming
3.18.440 Technical Standards
3.18.460 Complaint Procedures and Inquiries; or
(ii) The Franchisee deliberately fails to operate the system without prior approval of the City or without just cause; or
(iii) Subject to applicable law, the Franchisee intentionally evades any of the provisions of this franchise or is found to have practiced any fraud or deceit upon the City or a customer.
(b) Prior to any termination proceedings under this franchise, the Franchisee shall be given 60 days’ notice in writing, which notice shall state with particularity the grounds upon which the City relies. If, at the end of the 60-day period, the Franchisee has not corrected the matter which provides grounds for termination, the franchise may, at the option of the City, become null and void and the Franchisee shall thereafter be entitled to none of the privileges or rights herein extended to them and said Franchisee shall thereupon cease and desist from any activity within the City limits of the City; provided, however, that the City may at its option pursue any other and different or additional remedies provided to it by law or in equity.
(c) Termination under this subsection shall be accomplished openly by the passage of an ordinance after proceedings affording Franchisee due process of law and a full opportunity to be heard.
(d) Upon expiration or the termination of this franchise, the City may require Franchisee to continue to operate the system for an extended period of time, not to exceed six months. Franchisee shall, as trustee for its successor in interest, continue to operate the system under the terms and conditions of this franchise. In the event Franchisee does not so operate the system, the City may take such steps as it, in its sole discretion, deems necessary to assure continued service to subscribers. Neither party shall be deemed to have waived any rights as a result of Franchisee’s performance under this provision. (Ord. 5127 § 5.9, 1994).
3.18.310 Collection facilities.
The Franchisee shall make reasonable efforts to maintain facilities in the City where its customers may pay their bills for cable service during normal business hours. (Ord. 5127 § 5.10, 1994).
3.18.320 Assignment of franchise – Sale of franchise.
(1) This franchise shall be binding upon, and inure to the benefit of, the successors, legal representatives and assigns of the Franchisee. This franchise shall not be sold or assigned other than to an entity which owns or controls, is owned or controlled by, or is under common ownership with the Franchisee except for security purposes without prior written approval of the City by ordinance. Such approval shall not be unreasonably withheld.
(2) The City’s approval shall be based upon the financial responsibility of the party unto whom the franchise is being proposed for sale, assignment, or transfer. The proposed assignee must show, in addition to financial capability, technical ability, legal qualifications, demonstrated ability, and experience, sufficient to comply with the terms of the franchise as determined by the City, and must agree to comply with all provisions of the franchise. The City shall be deemed to have approved the proposed transfer or assignment in the event that its consent is not communicated in writing to the Franchisee within 60 days following receipt of written notice of the proposed transfer or assignment.
(3) The Franchisee shall promptly notify the City of any proposed change in or transfer of or acquisition by any other party, of control of the Franchisee. A transfer of control of the Franchisee shall arise upon the proposed sale by any person or group of persons of 51 percent of the voting interest of the Franchisee.
(4) The consent or approval of the City Council to any transfer of the franchise shall not constitute a waiver of release of the rights of the City in and to the streets and rights-of-way, and any transfer shall by its terms be expressly subordinate to the terms and conditions of this franchise.
(5) In no event shall a transfer of ownership or control of the franchise be approved without successor in interest becoming a signatory to the franchise agreement. (Ord. 5127 § 5.11, 1994).
Article VI. Insurance, Bonding, and Penalties
3.18.330 Insurance.
(1) Franchisee shall pay, save harmless, and indemnify the City from any loss or claim against the City on account of, or in connection with, any activity of Franchisee in the construction, operation or maintenance of its technical facilities and systems services.
(2) The Franchisee shall, for the purposes of carrying out the provisions of this section, prior to commencing construction of any kind, have in full force and effect, and file and maintain during the term of the franchise evidence thereto with the City Recorder, good and sufficient policies covering:
(a) Compensation insurance in compliance with all worker’s compensation insurance and safety laws of the State of Oregon and amendments thereto;
(b) Bodily injury insurance with limits of at least $500,000 personal injury each person and $1,000,000 each occurrence;
(c) Property damage insurance with limits of at least $100,000 each accident and $300,000 each occurrence.
(3) The City of Albany, its officers, agents, and employees, shall be named additional insureds in said policy for losses caused in whole or in part by reason of the exercise of the rights and privileges herein granted.
(4) Upon any material alteration or cancellation of any of the coverage, the Franchisee shall give the City 30 days’ notice in advance of the effective date of the alteration or cancellation of the coverage. (Ord. 5127 § 6.1, 1994).
3.18.340 Bonds and other surety.
Except as expressly provided herein, Franchisee shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the franchise or continuing its existence at the time this franchise is granted. The City acknowledges that the legal, financial, and technical qualifications of Franchisee are sufficient to afford compliance with the terms of the franchise and the enforcement thereof. Initially, no bond or other surety will be required. In the event that one is required in the future, the City agrees to give the Franchisee at least 60 days’ prior written notice thereof stating the exact reason for the requirement and the amount. Such reason must demonstrate a change in the Franchisee’s legal, financial, or technical qualifications which would materially prohibit or impair its ability to comply with the terms of the franchise or afford compliance therewith. (Ord. 5127 § 6.2, 1994).
3.18.350 Remedies not exclusive – When requirement waived.
All remedies and penalties under this chapter, including termination of the franchise, are cumulative, and the recovery or enforcement of one is not a bar to the recovery or enforcement of any other such remedy or penalty. The remedies and penalties contained in this chapter, including termination of the franchise, are not exclusive, and the City reserves the right to enforce the penal provisions of any ordinance or resolution and to avail itself of any and all remedies available at law or in equity. Failure to enforce shall not be construed as a waiver of a breach of any term, condition or obligation imposed upon the Franchisee by, or pursuant to, this chapter. A specific waiver of a particular breach of any term, condition or obligation imposed upon the Franchisee by, or pursuant to, this chapter or acceptance of any payment due shall not be a waiver of any other or subsequent or future breach of the same or of any other term, condition or obligation itself. (Ord. 5127 § 6.3, 1994).
3.18.360 Penalties.
Subject to requirement of prior notice as set forth in subsection (3) of this section, for violations of this chapter occurring without just cause, City may, at its discretion and in addition to any other remedies provided herein, assess penalties against Franchisee as follows:
(1) For failure to adhere to material provisions of this franchise, as defined in AMC Section 3.18.300(3), up to $200.00 per day for each provision not fulfilled.
(2) For failure to comply with any provision of this franchise other than the above paragraph, up to $50.00 per day for each failure to fulfill franchise provision.
(3) Prior to imposing any penalty under this section, the City shall provide Franchisee with written notice specifying the nature of the violation. Franchisee shall be subject to penalty if the violation is not remedied within 10 days of receipt of notice. If the violation cannot be satisfied within 10 days, Franchisee shall notify the City of the expected date on which the violation will be remedied. This notice shall not provide Franchisee with immunity from penalties under this section. (Ord. 5127 § 6.4, 1994).
Article VII. Franchise Specifications
3.18.370 Franchise nonexclusive.
This franchise is not exclusive and shall not be construed as a limitation on the City in:
(1) Granting rights, privileges and authority to other persons similar to, or different from, those granted by this chapter.
(2) Constructing, installing, maintaining or operating any City-owned public utility.
(3) In the event the City enters into a franchise, permit, license, authorization, or other agreement of any kind with any other person or entity other than Franchisee to enter into the City’s streets and public ways for the purpose of constructing or operating a cable system or providing cable service to any part of the service area, the material provisions thereof shall be reasonably comparable to those contained herein, insofar as this is not in conflict with rules of government, in order that one operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law. (Ord. 5127 § 7.1, 1994).
3.18.380 Channel capacity.
Franchisee’s facilities shall maintain current channel capacity as are available at time of franchise renewal. Franchisee shall upgrade its facilities with state of the art equipment so as to be capable of delivering 62 channels within three years after the date the ordinance codified in this chapter is passed.
(1) Franchisee shall make its public access channels available to City use upon request from Council, City Manager, or Mayor.
(2) The City shall indemnify and hold Franchisee, its agents, employees, officers, and assigns hereunder, harmless from any claims arising out of the use of its facilities by the City. (Ord. 5127 § 7.2, 1994).
3.18.390 Rate structure.
City and Franchisee will comply with Cable Act. (Ord. 5127 § 7.3, 1994).
3.18.400 Compensation.
(1) As compensation for the franchise granted by this chapter, unless changed by the Council as provided herein, the Franchisee shall pay to the City an amount equal to five percent of the gross revenue as defined in AMC Section 3.18.020, collected by the Franchisee from its customers for cable services within the City under the rate schedule as approved and hereafter approved by the City Council. The gross revenue shall be computed after deducting from the total billings of the Franchisee the total net write-off of uncollectible accounts. No expenses, encumbrances or expenditures shall be deducted from the gross revenue in determining the total gross revenue.
(2) The compensation required by this section shall be due on or before the thirtieth day of each and every quarter for the quarter preceding. Within 60 days after the termination of this franchise, compensation shall be paid for the period elapsing since the close of the last calendar year for which compensation has been paid.
(3) The Franchisee shall furnish to the City with each payment of compensation required by this section a notarized statement, executed by an officer of the Franchisee, showing the amount of gross revenue of the Franchisee within the City for the period covered by the payment computed on the basis set out in subsection (1) of this section. If the Franchisee fails to pay the entire amount of compensation due the City through error or otherwise within the times allotted for payment in subsection (2) above, the amount of the fee due for that quarter and not timely paid shall be subject to a late penalty of an additional 10 percent plus interest of one percent per month on the amount of fee due and unpaid from the date due until it is paid together with the late penalty.
(4) Nothing contained in this franchise shall give the Franchisee any credit against any ad valorem property tax now or hereafter levied against real or personal property within the City, or against any local improvement assessment or any business tax imposed on Franchisee, or against any charges imposed upon the Franchisee, or against any charges imposed upon the Franchisee as provided in AMC Section 3.18.410, or reimbursement or indemnity paid to the City. (Ord. 5127 § 7.4, 1994).
3.18.410 Permit and inspection fees.
Nothing in this chapter shall be construed to limit the right of the City to require the Franchisee to pay the standard fees charged by the City for any of the activities covered by this chapter as now in effect or hereafter amended. (Ord. 5127 § 7.5, 1994).
