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19940927 1994-23ORDINANCE NO. 1994- 23 AN ORDINANCE APPROVING AN AGREEMENT AMONG FAIRFAX COUNTY, VIRGINIA, THE CITY OF FALLS CHURCH, VIRGINIA, AND THE CITY OF FAIRFAX, VIRGINIA, FOR THE JOINT EXERCISE OF POWERS REGARDING THE REGULATION OF CABLE TELEVISION SYSTEMS. 1. BE IT ORDAINED, by the City Council of the City of Fairfax, Virginia, that the Council hereby approves an Agreement among Fairfax County, Virginia, the City of Falls Church, Virginia, and the City of Fairfax, Virginia, for the joint exercise of powers regarding the regulation of cable television systems. The terms and conditions of the Agreement are as follows: AGREEMENT FOR THE JOINT EXERCISE OF POWERS REGARDING THE REGULATION OF CABLE TELEVISION SYSTEMS. THIS AGREEMENT, made this day of , 1994, among Fairfax County, Virginia (hereinafter "Fairfax County"), the City of Falls Church, Virginia (hereinafter "Falls Church") and the City of Fairfax, Virginia (hereinafter "City of Fairfax"); WHEREAS, the County of Fairfax County, Virginia, the City of Falls Church, Virginia and the City of Fairfax, Virginia, are political subdivisions of the Commonwealth of Virginia; and WHEREAS, Va. Code Section 15.1-21 (Supp. 1994) permits political subdivisions of the Commonwealth of Virginia to enter into agreements for the joint exercise of any power, privilege or authority exercised or capable of exercise by any political subdivision of the Commonwealth of Virginia; and WHEREAS, Va. Code Section 15.1-23.1 (Supp. 1994) permits Virginia counties, cities and towns to license, franchise and regulate cable television systems; and WHEREAS, Fairfax County, Falls Church and the City of Fairfax have each granted cable television franchises to cable television operators to provide cable television service in their jurisdictions; and WHEREAS, in 1992 the United States Congress enacted the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992) ("1992 Cable Act"); and WHEREAS, the 1992 Cable Act and the federal regulations promulgated thereunder by the Federal Communications Commission ("FCC") permit political subdivisions which franchise local cable operators to regulate rates for basic cable television services, associated equipment, and installation fees charged by local cable television systems; and WHEREAS, the FCC permits more than one political subdivision to undertake joint action to regulate rates for basic cable television services, associated equipment, and installation fees charged by local cable televisions systems; and WHEREAS, the political subdivisions entering into this Agreement for the Joint Exercise of Powers Regarding the Regulation of Cable Television Systems (the "Agreement") desire to implement an efficient and simple regulatory review procedure for the establishment of cable television rates; 1994-23 -2- NOW, THEREFORE, BE IT RESOLVED that the governing bodies of Fairfax County, Falls Church and the City of Fairfax (the "Parties") adopt this Agreement by which the Parties will exercise certain powers related to the regulation of cable television systems and the establishment and review of rates and fees as authorized by law. WITNESS ETH : In consideration of the mutual benefits to be derived by the Parties from this Agreement, the Parties hereby covenant and agree as follows: Section 1. Purpose. A. The Parties enter into this Agreement for the joint review and regulation of basic cable services, associated equipment and installation charges ("Regulated Services") in accordance with, and as defined by, the 1992 Cable Act, the applicable FCC regulations and policies ("Federal Law"), and the applicable provisions of the Code of Virginia. B. The Parties agree that Fairfax County shall be the Lead Jurisdiction among the Parties which have entered into this Agreement and which are jointly certified by the FCC to regulate Regulated Services as authorized by law. Section 2. Responsibilities of the Parties. A. The Lead Jurisdiction shall provide the necessary technical services, financial services, and County staff support services for reviewing and regulating Regulated Services, for implementing the Federal Law governing rates for basic cable television service, and for applying and implementing the most current FCC regulations. The services shall include, but shall not be limited to, reviewing initial rate filings on behalf of each of the Parties for compliance with Federal Law, identifying additional information to be submitted by the cable television operators to the Parties, performing benchmark analyses, analyzing cost of service filings, and providing other related services for regulation of Regulated Services. Such services shall also include making such investigations and engaging such expertise as may be necessary to undertake the regulation of Regulated Services rates by the Parties in accordance with Federal Law. The Lead Jurisdiction shall be responsible for corresponding with the cable television operators and the FCC on behalf of the Parties. In any such correspondence, the Lead Jurisdiction shall not make representations on behalf of any of the other Parties purporting to bind such other Parties or purporting to state the policies of such other Parties without the prior knowledge of representatives thereof. B. Each Party to this Agreement shall make one or more representatives available as needed to participate in meetings and discussions and to perform other work necessary to fulfill their respective responsibilities under this Agreement. Each Party shall bear its own costs for providing such representatives. Such costs shall not be allocated or charged to the other Parties. Section 3. Reimbursement of Costs to Lead Invoices Jurisdiction; 1994-23 -3- A. Each Party shall reimburse the Lead Jurisdiction for a portion of the actual costs for non-County personnel incurred Fairfax County in providing services under this Agreement. Such costs shall be limited to the amounts paid by the Lead Jurisdiction to the contractor providing cable television rate regulation consulting services in response to Fairfax County R.F.P. No. 40097521, issued on January 14, 1994. Each Party's share of such costs shall be billed by the Lead Jurisdiction to each other Party at the times provided herein. B. Each party's share of such costs shall be based upon the ratio of the number of cable operator's subscribers in such Party's jurisdiction to the total number of subscribers of that cable television operator in all jurisdictions which are Parties to this agreement. For the purposes of this Agreement, the cable television subscribers in the Towns of Clifton, Herndon and Vienna shall be included as subscribers in Fairfax County. The ratio shall be calculated as of the latest quarterly report when all of the Parties are notified of a rate change by any cable operator serving two or more jurisdictions that are Parties to this Agreement. C. The Lead Jurisdiction shall submit invoices, for costs, with accompanying documentation, to each other Party, provided, however, that the costs to the City of Fairfax shall not exceed two thousand five hundred dollars ($2,500.00) and the costs to Falls Church shall not exceed one thousand two hundred dollars ($1,200.00). Such invoices shall be paid within sixty days from the date of receipt. Upon request, the Lead Jurisdiction shall provide to any other Party a description and all supporting documentation of all costs incurred by the Lead Jurisdiction in providing services under this Agreement and billed to the requesting Party. The Lead Jurisdiction shall not submit an invoice to any other Party for the cost of any rate regulatory services related to a cable television operator which does not serve such Party. D. Should the Parties agree, by separate subsequent action of their governing bodies, to share costs for cable television rate regulation consulting services beyond those called for in Fairfax County R.F.P. No. 40097521, then those costs shall be shared in accordance with the applicable provisions of this Section 3, unless otherwise provided. Section 4. Reservation of Powers. The governing body of each Party to this Agreement reserves and retains the independent power to investigate, evaluate and regulate the rates charged for Regulated Services. Section 5. Administration; Property. A. The undertakings described in this Agreement shall be exercised by or on behalf of the Cable Television administrators of the Parties and the governing bodies of the Parties. B. In performing their responsibilities under this Agreement, the Parties shall neither jointly acquire nor hold title to any real or personal property. 1994-23 -4- Section 6. Liability; Insurance. With the exception of the responsibility of the Parties to reimburse the Lead Jurisdiction for certain costs under this Agreement, this AGreement shall not impose any liability of any nature on any Party. No Party to this Agreement shall be liable to any other Party to this Agreement for any injury, damage, loss or claim resulting from or arising out of this Agreement. In regard to any claim by any person who is not a Party to this Agreement, each Party to this AGreement shall be responsible for resolving any claim regarding its own negligence for any injury, damage, loss or claim resulting from or arising out of this Agreement or any services performed hereunder. Each of the Parties may obtain and maintain insurance coverage related to their respective responsibilities under this Agreement, but no Party shall be obligated to insure or bear any financial liability for the activities of any other Party to this Agreement. Section 7. Effective Date and Duration. This Agreement shall become effective on and after approval by ordinance of at last two Parties, provided that at least one of the Parties shall be Fairfax County. The effective date shall be that date on which this Agreement is approved by the adoption by at least two jurisdictions and the Agreement is executed on behalf of those jurisdictions by the signatures of the representatives of the Parties. This Agreement shall remain in effect for as long as the Parties to this Agreement are authorized by law to regulate cable television rates, or until this agreement is terminated in accordance with Section 8, whichever occurs first. Section 8. Termination. Any Party to this Agreement may terminate its participation in this Agreement by enactment of an ordinance by the governing body of the terminating Party. Prior to any such termination becoming effective, the terminating Party shall notify each of the remaining Parties to this Agreement of the terminating Party's intention to terminate this agreement to be effective on a date stated in the notice. Such termination shall be effective not sooner than sixty days after receipt by the non-terminating Parties of such termination notice. Any Party terminating its participation in this Agreement shall remain liable for all costs described in Section 3, which costs were incurred prior to receipt of termination notices by each of the non-terminating Parties. Except for termination by Fairfax County, termination of participation in this agreement by one Party shall not affect the obligations of the remaining Parties, provided that at least two Parties (one of which is Fairfax County) remain parties to this Agreement. Notwithstanding anything herein to the contrary, if Fairfax County terminates this Agreement, then each of the Parties obligations under this Agreement shall cease upon the date stated in the notice, which date shall not be sooner than sixty days after receipt by each of the non-terminating Parties of notices of termination from Fairfax County. Section 9. Amendments. This Agreement may be amended by: (i) enactment of an ordinance by each of the parties hereto, and by subsequent execution of an Amended Agreement; or (ii) by any other method specifically authorized by law. 1994-23 -5- Section 10. Notice. Unless otherwise designated in writing to each of the Parties, all notices required or permitted to be sent to the Parties under this Agreement shall be given in writing as follows: To Falls Church: David R. Lasso City Manager City of Falls Church 300 Park Avenue Falls Church, Virginia 22046 To the City of Fairfax: Robert L. Sisson City Manager City of Fairfax 10455 Armstrong Street Fairfax, Virginia 22030 To Fairfax County: William J. Leidinger County Executive County of Fairfax 12000 Government Center Parkway, Suite 552 Fairfax, Virginia 22035 Notices shall be properly served if hand-delivered or if sent by registered or certified mail, return receipt requested. Notices shall be effective upon receipt. Section 11. Severability. The provisions of this agreement are severable. If any provision of this Agreement or any application thereof is held invalid, such invalidity shall not affect the other provisions or application of this Agreement which can be given effect without the invalid provision or application. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by duly authorized representatives of such Parties. WITNESS the following signatures: For the CITY OF FALLS CHURCH, VIRGINIA ATTEST: David R. Lasso City Manager Date 1994-23 -6- For the CITY OF FAIRFAX, VIRGINIA ATTEST: Robert L. Sisson City Manager Date For the COUNTY OF FAIRFAX, VIRGINIA ATTEST: William J. Leidinger County Executive Date 2. BE IT FURTHER ORDAINED by the City Council of the City of Fairfax, that actions previously taken by the Lead Jurisdiction at the request of, and on behalf of, the City, regarding joint certification and regulation under the 1992 Cable Act, are hereby ratified, and that the City Manager is authorized and directed to execute on behalf of the City an Agreement for the Joint Exercise of Powers, provided that such Agreement is approved as to form by the City Attorney. This ordinance shall become effective as provided by law. INTRODUCED: PUBLIC HEARING: ADOPTED: September 13, 1994 September 27, 1994 September 27, 1994 ATTEST Date