ORD 06-524FEDERAL WAY - COMCAST CABLE FRANCHISE AGREEMENT
ORDINANCE NO. 06 -524
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL
WAY, WASHINGTON, GRANTING A NON - EXCLUSIVE FRANCHISE TO
COMCAST OF PUGET SOUND, INC. AND COMCAST OF WASHINGTON
IV, INC. TO OCCUPY RIGHTS -OF -WAY OF THE CITY OF FEDERAL
WAY, WASHINGTON, WITHIN THE SPECIFIED FRANCHISE AREA FOR
THE PURPOSES OF OPERATING AND MAINTAINING A CABLE
COMMUNICATIONS SYSTEM, AND SETTING FORTH CONDITIONS
ACCOMPANYING THE GRANT OF FRANCHISE.
WHEREAS, on August 6, 1995, the City of Federal Way (hereinafter, "City ")
granted a non - exclusive cable franchise to Tele -Vue Systems, Inc., DBA Viacom Cable and said
franchise was subsequently transferred to Comcast of Puget Sound, Inc., and extended, and will
expire at midnight on May 31, 2006; and
WHEREAS, on March 21, 1996, City granted a non - exclusive cable franchise to
TCI of Auburn and said franchise was subsequently transferred to Comcast of Washington IV,
Inc., and extended, and will expire at midnight on May 31, 2006; and
WHEREAS, Comcast of Puget Sound, Inc. and Comcast of Washington IV, Inc.
(hereinafter, "Grantee ") has requested the renewal of its current cable television franchise; and
WHEREAS, the City has reviewed Grantee's performance under the prior
Franchises and the quality of service during the prior Franchises' terms, has identified the future
cable - related needs and interests of the City and its citizens, has considered the financial,
technical and legal qualifications of Grantee, and has determined whether Grantee's plans for
constructing, operating and maintaining its Cable System are adequate, in a full public
proceeding affording due process to all parties; and
WHEREAS, the Grantee and City have agreed to be bound by the conditions
hereinafter set forth; and
ORD # 06 -524 Page I
•
•
WHEREAS, the public has had adequate notice and opportunity to comment on
Grantee's proposal to provide Cable Service within the City; and
WHEREAS, the City has a legitimate and necessary regulatory role in ensuring
the availability of Cable Service, high technical capability and reliability of Cable Systems in its
jurisdiction, the availability of local programming (including educational and Governmental
Access programming), quality customer service, and management of City Rights -of -Way; and
WHEREAS, diversity in Cable Service and local and non -local programming is
an important policy goal and the Grantee's Cable System should offer a wide range of
programming services; and
WHEREAS, flexibility to respond to changes in technology, Subscriber interests
and competitive factors within the Cable Service market is an essential characteristic of this
Franchise and both the City and the Grantee stress maximum Cable System flexibility to take
advantage of new technology to benefit Subscribers and citizens as such technology becomes
available; and
WHEREAS, the City is authorized by applicable federal law to grant one or more
non - exclusive Franchises to construct, operate and maintain a Cable Television System within
the boundaries of the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL
WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
This Cable Television Franchise is entered into in Federal Way, Washington, this ].�—
day of , by and between Comcast of Puget Sound, Inc., a corporation, and
Comcast of Washington IV, Inc., a corporation, and the City of Federal Way, Washington, a
municipal corporation. City and Grantee are sometimes referred to as the "parties."
ORD # 06 -524 Page 2
• •
TABLE OF CONTENTS
SECTION 1.
DEFINITIONS ...............................................................................................
............................... 1
SECTION 2.
GRANT OF FRANCHISE .............................................................................
............................... 9
2.1
Grant ......................................................................................
..............................9
2.2
Use of Ri hts -o -Wa .............................
............................... 10
2.3
Term ....................................................................................
............................... 11
2.4
Effective Date ......................................................................
............................... 12
2.5
Franchise Non- Exclusive ....................................................
............................... 12
2.6
Grant of Other Franchises ..................................................
............................... 13
2.7
Familiarity with Franchise .................................................
............................... 13
2.8
Effect of Acceptance ............................................................
............................... 13
2.9
Police Powers .....................................................................
............................... 13
2.10
Renewal .................................................................................
.............................14
2.11
Service Area ........................................................................
............................... 14
2.12
Annexation ............................................................................
.............................14
SECTION 3.
FRANCHISE FEE AND FINANCIAL CONTROLS ...................................
............................... 14
3.1
Franchise Fee .....................................................................
............................... 14
3.2
Payments and Reports .........................................................
............................... 14
3.3
Acceptance of Payment .......................................................
............................... 15
3.4
Annual Franchise Fee Reports ...........................................
............................... 15
3.5
Audits ....................................................................................
.............................15
3.6
Financial Records ...............................................................
............................... 16
3.7
Interest on Late Payments ...................................................
............................... 16
3.8
Additional Commitments Not Franchise Fees
.................... ............................... 16
3.9
Payment on Termination .....................................................
............................... 16
3.10
Duty to Cooperate ...............................................................
............................... 17
SECTION 4.
ADMINISTRATION AND REGULATION .................................................
............................... 17
4.1
General Provisions .............................................................
............................... 17
4.2
Changes in Law ...................................................................
............................... 17
4.3
Rates and Charges ..............................................................
............................... 17
4.4
Rate Discrimination ............................................................
............................... 18
ORD # 06 -524 Page 1
N
• •
4.5
Filing of Rates and Charges ...............................................
............................... 18
4.6
Late Fees .............................................................................
............................... 19
4.7
Time Limits Strictly Construed ...........................................
............................... 19
SECTION 5.
FINANCIAL AND INSURANCE REQUIREMENTS .................................
............................... 19
5.1
Indemnification ...................................................................
............................... 19
5.2
Insurance Requirements .......................................................
............................... 20
5.3
Performance Bond ..............................................................
............................... 22
SECTION6.
CUSTOMER SERVICE ...............................................................................
............................... 23
6.1
Subscriber Contracts ..........................................................
............................... 23
6.2
Subscriber Privacy ..............................................................
............................... 23
6.3
Payment Center ...................................................................
............................... 23
6.4
Telephone Answering Standards .........................................
............................... 23
6.5
Service Calls, Installations, and Outages ...........................
............................... 24
6.6
Notice Requirements ...........................................................
............................... 26
6.7
Special Notice Procedures ..................................................
............................... 26
6.8
Billing ....................................................................................
.............................27
6.9
Rate Discounts ....................................................................
............................... 28
SECTION 7.
REPORTS AND RECORDS ........................................................................
............................... 28
7.1
Open Records ......................................................................
............................... 28
7.2
Proprietary and Confidential Records ................................
............................... 29
7.3
File for Public Inspection ...................................................
............................... 30
7.4
Records Available ...............................................................
............................... 30
7.5
Annual Reports ....................................................................
............................... 31
7.6
Submittal of Documents ......................................................
............................... 31
7.7
False Statements .................................................................
............................... 32
7.8
Penalties. forNoncompliance ................................................
.............................32
7.9
Report Expense ...................................................................
............................... 32
SECTION 8.
PROGRAMMING AND CHANNEL CAPACITY .......................................
............................... 32
8.1
Required Programming Categories ....................................
............................... 32
8.2
Obscenity ...............................................................................
.............................32
8.3
Parental Control Device .....................................................
............................... 33
ORD # 06 -524 Page 11
•
C�
J
ORD # 06 -524 Page iii
8.4
Connection to Public Facilities .......................................... ...............................
33
8.5
Continuity of Service ........................................................... ...............................
34
SECTION 9.
PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS ............... ...............................
34
9.1
PEG Capital Support .......................................................... ...............................
34
9.2
Access Reporting ....... .............................., ........................... ...............................
35
9.3
Management and Control of Access Channels ................... ...............................
35
9.4
Access Channels .................................................................. ...............................
35
9.5
Changes in Technology ....................................................... ...............................
37
9.6
Access Channels on Basic Service ...................................... ...............................
37
9.7
Access Channel Location /Relocation and Bill Insertions ... ...............................
37
9.8
Return Lines ........................................................................ ...............................
38
9.9
Technical Quality ...............................................................................................
38
9.10
Access Channel Interconnections ....................................... ...............................
38
SECTION 10. RIGHT -OF -WAY AND CONSTRUCTION STANDARDS ......................... ...............................
39
10.1
Permitting ........................................................................... ...............................
39
10.2
Construction .......................................................................... .............................41
10.3
Standards of Performance .................................................. ...............................
42
10.4
Maintenance and Workmanship ......................................... ...............................
44
10.5
Repair and Restoration of Rights -of -Way and City -Owned Property ...............
45
10.6
Location of Facilities ............:............................................. ...............................
46
10.7
Relocation ........................................................................... ...............................
46
10.8
Undergrounding of Cable ................................................... ...............................
47
10.9
Trimming of Trees and Shrubbery ...................................... ...............................
48
10.10
Use of Poles ........................................................................ ...............................
48
10.11
Stop Work ............................................................................ ...............................
49
10.12
Work of Contractors and Subcontractors ........................... ...............................
49
10.13
Acquisition of Facilities ..................................................... ...............................
50
10.14
Reservation of City Rights -of -Way Use Rights ................... ...............................
50
10.15
Discontinuing Use of Facilities .......................................... ...............................
50
10.16
Street Vacation .................................................................... ...............................
51
SECTION 11.
CABLE SYSTEM DESIGN AND CAPACITY ........................................... ...............................
51
ORD # 06 -524 Page iii
•
CJ
11.1
Equal and Uniform Service .................................................
............................... 51
11.2
Cable System Upgrade ........................................................
............................... 51
11.3
Technical Performance .......................................................
............................... 51
11.4.
Inspection of Facilities ........................................................
............................... 52
11.5
Cable System Performance Testing ....................................
............................... 52
SECTION 12.
INSTITUTIONAL NETWORK ...................................................................
............................... 53
12.1
I -Net History .......................................................................
............................... 53
12.2
I -Net Use .............................................................................
............................... 54
12.3
I -Net Terms and Conditions ................................................
............................... 54
SECTION 13.
SERVICE AVAILABILITY ........................................................................
............................... 54
13.1
Service Request ...................................................................
............................... 54
13.2
Service Extensions ..............................................................
............................... 54
SECTION 14.
STANDBY POWER AND EMERGENCY ALERT SYSTEM ....................
............................... 55
14.1
Standby Power ....................................................................
............................... 55
14.2
Emergency Alert Service (EAS) Capability ........................
............................... 56
SECTION 15.
ENFORCEMENT; TERMINATION OF FRANCHISE ...............................
............................... 56
15.1
Informal Dispute Resolution ...............................................
............................... 56
15.2
Procedure for Remedying Franchise Violations .................
............................... 56
15.3
Alternative Remedies ..........................................................
............................... 58
15.4
Assessment of Liquidated Damages .....................................
............................... 59
15.5
Revocation .............................................................................
.............................61
15.6
Removal .................................................................................
.............................63
15.7
Non - Enforcement by City ....................................................
............................... 63
15.8
Bankruptcy Procedures .......................................................
............................... 64
SECTION16.
ABANDONMENT .......................................................................................
............................... 64
16.1
Effect ofAbandonment ........................................................
............................... 64
16.2
What Constitutes Abandonment ..........................................
............................... 64
SECTION 17.
TRANSFER OF OWNERSHIP OR CONTROL ..........................................
............................... 65
SECTION 18.
FRANCHISE REVIEW ...............................................................................
............................... 67
18.1
Performance Evaluation ......................................................
............................... 67
18.2
Topics to be Addressed at Performance Reviews ...............
............................... 68
ORD # 06 -524 Page 1V
0 •
ORD # 06 -524 Page v
SECTION 19.
MISCELLANEOUS PROVISIONS ............................................................. ...............................
69
19.1
Equal Employment Opportunity Requirements .................. ...............................
69
19.2
Notices ................................................................................... .............................69
19.3
Costs to be Borne by Grantee ............................................. ...............................
70
19.4
Binding Effect ...................................................................... ...............................
70
19.5
Authority to Amend ............................................................. ...............................
70
19.6
Venue ..................................................................................... .............................70
19.7
Governing Law .................................................................... ...............................
70
19.8
Guarantee ........................................................................... ...............................
70
19.9
Captions .............................................................................. ...............................
70
19.10
Construction of Franchise .................................................. ...............................
70
19.11
No Joint Venture ................................................................. ...............................
70
19.12
Waiver ................................................................................... .............................71
19.13.
Severability ........................................................................ ...............................
71
19.14
Entire Agreement ................................................................ ...............................
71
19.15
Compliance with Federal, State, and Local Laws .............. ...............................
71
19.16
Force Majeure .................................................................... ...............................
71
SECTION20.
RATIFICATION .......................................................................................... ...............................
72
SECTION21.
EFFECTIVE DATE ..................................................................................... ...............................
72
EXHIBITA —
ACCEPTANCE ..................................................................................... ...............................
73
EXHIBIT B —INSTITUTIONAL
NETWORK AGREEMENT .......................... ...............................
74
ORD # 06 -524 Page v
• •
Section 1. Definitions
For all purposes of this Franchise, the following terms, phrases, and words have the
following meanings. When not inconsistent with the context, words used in the present tense
include the future, words in the plural include the singular, and words in the singular include the
plural. Words not defined have their common and ordinary meaning. The word "must" is always
mandatory and not merely directory.
1.1 "Access" means the availability for Non - Commercial use by various agencies,
institutions, organizations, groups and individuals in the community including City and its
designees, of particular Channels on the Cable System to receive and distribute Video
Programming and information to Subscribers, as required under applicable law and this
Franchise, including:
(a) "Educational Access" means Access where Schools are the primary users
having editorial control over programming and services;
(b) "Governmental Access" means Access where governmental institutions or
their designees are the primary users having editorial control over programming and services;
(c) "Access" means Educational Access and Governmental Access,
collectively; and
(d) "Public Access" means Access where organizations, groups or individual
members of the general public, on a nondiscriminatory basis, are the primary users.
1.2 "Access Center" means a facility or facilities where Public, Educational, or
Governmental use signals are managed and delivered to the Grantee for downstream
transmission to Subscribers or to other Access Centers via a dedicated Connection.
ORD # 06 -524 Page 1
•
•
1.3 "Access Channel" means a Channel, designated for Non - Commercial Access
purposes or otherwise made available to facilitate or transmit Access programming.
1.4 "Access Fees" means the capital contribution paid to the City by the Grantee
under Section 9.1.
1.5 "Activation'' or "Activated" means the status of any part of the Cable System, in
which any Cable Services requiring use of that part is available without further installation of
Cable System equipment other than Subscriber premise equipment, whether hardware or
software.
1.6. "Affiliated Entity" or "Affiliate" when used in connection with Grantee means
any corporation, Person who owns or controls, is owned or controlled by, or is under common
ownership or control with, Grantee and its successors.
1.7 "Bad Debt" means amounts lawfully owed by a Subscriber and accrued as
revenues on the books of Grantee, but not collected after reasonable efforts by Grantee.
1.8 "Basic Service" means any Cable Service Tier that includes, at a minimum, the
re- transmission of local television Broadcast Signals and Public, Educational, and Governmental
Access Channels, or such service Tier as may be further defined by federal law.
1.9 "Broadcast Signal" means a television or radio signal transmitted over the air to a
wide geographic audience, and received by a Cable System by antenna, microwave, satellite
dishes, or any other means.
1.10 "Cable Act" means the Cable Communications Policy Act of 1984 (47 U.S.C.
§521 to §653), as amended.
1.11 "Cable Operator" means any Person or group of Persons, including Grantee, who
provides Cable Service over a Cable System and directly or through one or more Affiliates owns
ORD # 06 -524 Page 2
U
•
a significant interest in such Cable System or who otherwise controls or is responsible for,
through any arrangement, the management and operation of such a Cable System.
1.12 "Cable Service" means the one -way transmission to Subscribers of Video
Programming or other programming service and Subscriber interaction, if any, that is required
for the selection or use of such Video Programming or other programming service.
1.13 "Cable System" means the Grantee's facility, consisting of a set of closed
transmission paths and associated signal generation, reception and control equipment that is
designed to provide Cable Service which includes Video Programming and which is provided to
multiple Subscribers within a community, but such term does not include (1) a facility that serves
only to retransmit the television signals of one or more television broadcast stations; (2) a facility
that serves Subscribers without using any public Right -of -Way; (3) a facility of a common
carrier which is subject, in whole or in part, to the provisions of Title I1 of the federal
Communications Act (47 U.S.C. § 201 et seq.), except that such facility will be considered a
Cable System (other than for purposes of Section 621(c) (47 U.S.C. § 541(c)) to the extent such
facility is used in the transmission of Video Programming directly to Subscribers, unless the use
is solely to provide interactive on- demand services; (4) an open video system that complies with
federal statutes; or (5) any facilities of any electric utility used solely for operating its electric
utility systems
1.14 "Channel" means a portion of the frequency band capable of carrying a Video
Programming service or combination of Video Programming services, whether by analog or
digital signal.
1.15 "City" means the City of Federal Way, Washington, a municipal corporation of
the State of Washington.
ORD # 06 -524 Page 3
• •
1.16 "Complaint" means a Subscriber contact with the Grantee to express a grievance
or dissatisfaction concerning Cable Service. For purposes of enforcement of this Franchise by
the City, Complaints do not include matters not within the scope of the Franchise. A Complaint
may be verbal or in writing, but need not include initial contacts where an issue is promptly
resolved to the Subscriber's satisfaction. Nothing in this definition prohibits the City from
communicating with Subscribers concerning Grantee's services.
1.17 "Connection" with regard to Connections to public buildings, means installation
of Fiber Optic or coaxial cable or other system- related facilities through the outer wall of the
building.
1.18 "Designated Access Provider" means the entity or entities designated by the City
to manage or co- manage Public, Educational or Governmental Access Channels and facilities.
The City may be a Designated Access Provider.
1.19 "Designated Distributor" means an entity authorized by the City to distribute
Access programming.
1.20 "Downstream Channel" means a Channel capable of carrying a transmission from
the Headend to remote points on the Cable System or to Interconnection points on the Cable
System.
1.21 "Dwelling Unit" means any residential building, or a portion thereof, that has
independent living facilities, including provisions for cooking, sanitation and sleeping, designed
for residential occupancy and includes "household" as that term is used in the federal Cable Act,
47 U.S.C. § 521, et seq. Buildings containing more than one set of facilities for cooking are
multiple unit buildings unless the additional facilities are clearly accessory.
ORD # 06 -524 Page 4
• •
1.22 "Expanded Basic Service" means the Tier of optional Video Programming
services not included in the Basic Service and excluding premium or pay - per -view services.
1.23 "FCC" means the Federal Communications Commission or its successor.
1.24 "Fiber Optic" means a transmission medium of optical fiber cable, along with all
associated equipment capable of carrying Cable Services or Institutional Network service by
means of electric light- waves.
1.25 "Franchise" means this document and any amendments and modifications thereto
executed between City and Grantee that contains specific provisions granting authorization and
the contractual and regulatory agreement between the parties.
1.26 "Franchise Area" means the area within the jurisdictional boundaries of the City,
including any areas annexed by City during the term of this Franchise.
1.27 "Franchise Fee" includes any tax, fee or assessment of any kind imposed by the
City on the Grantee or Subscribers, or both solely because of their status as such. Franchise Fee
does not include:
(a) Any tax, fee, or assessment of general applicability;
(b) Capital costs which are required by the Franchise to be incurred by the
Grantee for Public, Educational, or Governmental Access facilities, including the support
required in Section 9.1;
(c) Requirements or charges incidental to the awarding or enforcing of the
Franchise, including payments of bonds, security funds, insurance, indemnification, penalties, or
liquidated damages.
1.28 "Grantee" means Comcast of Comcast of Puget Sound, Inc., and Comcast of
Washington IV, Inc., and its successors.
ORD # 06 -524 Page 5
1.29 "Gross Revenues" means all amounts derived, consistent with federal and State
law, either by the Grantee from the operation of Grantee's Cable System to provide Cable
Services within the Franchise Area, or by any Affiliate only to the extent such amounts are
derived from the operation of Grantee's Cable System to provide Cable Services within the
Franchise Area. Gross Revenues includes, without limitation, amounts for Basic Cable service,
tiers of service and premium services, audio services, Subscriber installations, disconnection,
reconnection, change -in- service fees, late fees, administrative fees, revenues received from
programmers for carriage of programming on the Cable System, leased access, advertising,
equipment rentals and sales, commissions on sales from home shopping channels, and all other
revenues derived from the operation of Grantee's Cable System to provide Cable Services within
the Service Area. Revenues not directly attributable to specific customers (such as advertising
revenue and home shopping commissions) will be allocated to systems and jurisdictions on a per
Subscriber basis measured in a consistent manner from period to period. Gross Revenues will
not be net of. (1) any operating expense; (2) any accrual, including without limitation, any .
accrual for commissions; or (3) any other expenditure, regardless of whether such expense,
accrual, or expenditure reflects a cash payment. Gross Revenues, however, will not be double
counted. Revenues of both Grantee and an Affiliate that represent a transfer of funds between
Grantee and the Affiliate, and that would otherwise constitute Gross Revenues of both the
Grantee and Affiliate, will be counted only once for purposes of determining Gross Revenues.
Similarly, operating expenses of the Grantee which are payable from Grantee's revenues to an
Affiliate and which may otherwise constitute revenue of the Affiliate, will not constitute
additional Gross Revenues for the purpose of this Franchise. Gross Revenues will include
amounts earned by an Affiliate only to the extent that Grantee could have earned such types of
ORD # 06 -524 Page 6
0
•
revenue in connection with the operation of Grantee's Cable System to provide Cable Services
within the Service Area and recorded such types of revenue in its books and records directly, but
for the existence of Affiliates. Gross Revenues will not include (i) to the extent consistent with
GAAP, Bad Debt; provided, however, that all or part of any such Bad Debt that is written off but
subsequently collected will be included in Gross Revenues in the period collected; or (ii) any
taxes on services furnished by the Grantee which are imposed directly on any Subscriber or user
by the State, City, or other governmental unit and which are collected by the Grantee on behalf
of said governmental unit. The franchise fee is not such a tax. The City acknowledges that
Grantee shall maintain its books and records in accordance with GAAP and subject to applicable
laws.
1.30 "Headend" or "Hub" means Grantee's facilities for signal reception and
dissemination on its Cable System, including cable, antennas, wires, satellite dishes, monitors,
lasers, switchers, modulators, processors for Broadcast Signals, and all other related equipment
and facilities.
1.31 "Institutional Network" or "I -Net" means that part of the Cable System facilities
or capacity owned by the Grantee, designed for Non - Commercial use by non - residential
Subscribers including communications to, from, and among government agencies, Schools,
libraries, and other public agencies.
1.32 "Leased Access Channel" means any Channel or portion of a Channel
commercially available for programming in accordance with Section 612 of the Cable Act.
1.33 "Non- Commercial" means, in the context of Access Channels, that particular
products and services are not promoted or sold. This term will not be interpreted to prohibit an
Access Channel operator or programmer from soliciting and receiving financial support to
ORD # 06 -524 Page 7
s •
produce and transmit Video Programming on an Access Channel, or from acknowledging a
contribution, in the manner of the Corporation for Public Broadcasting. In the context of an
Institutional Network, Non - Commercial means private network communications from and
among government agencies, Schools, libraries, and other public agencies and excludes any
other actions, such as the leasing or reselling Institutional Network capacity to a third party for
any purpose.
1.34 "Normal Business Hours" means those hours during which most similar
businesses in the community are open to serve customers.
1.35 "Normal Operating Conditions" means those service conditions that are within the
control of the Grantee. Those conditions do not include natural disasters, civil disturbances,
power outages, telephone network outages, and severe or unusual weather conditions.
Conditions ordinarily within the control of the Grantee include, but are not limited to, special
promotions, rate increases, and maintenance or upgrade of the Cable System.
1.36 "Pay Service" or "Premium Service" means Video Programming or other
programming service choices (such as movie Channels or pay - per -view programs) offered to
Subscribers on a per - Channel, per - program, or per -event basis.
1.37 "Person" means an individual, partnership, association, joint -stock company,
trust, corporation, or governmental entity.
1.38 "Rights -of -Way" means land acquired or dedicated for public Streets or roads,
highways, avenues, lanes, alleys, bridges, sidewalks, including easements and rights to similar
public property located within the Franchise Area.
ORD # 06 -524 Page 8
0 0
1.39 "School" means any State - accredited educational institution including, for
example, primary and secondary Schools (K -12), colleges and universities, and excluding home
schools, residential facilities, and prison/jail populations.
1.40 "Service Interruption" means the loss of picture or sound on one or more cable
Channels.
1.41 "Service Tier" means a category of Cable Service or other services provided by
the Grantee and for which the Grantee charges a separate rate.
1.42 "State" means the State of Washington.
1.43 "Street" means Rights -of -Way.
1.44 "Subscriber" means any Person who receives Cable Services provided by Grantee
by means of the Cable System and whose premises are lawfully activated to receive Cable
Service from Grantee's Cable System.
1.45 "Upstream Channel" means carrying a transmission to the Headend from remote
points on the Cable System.
1.46 "Video Programming" means programming provided by, or generally considered
comparable to programming provided by a television broadcast station or cable programmer.
Section 2. Grant of Franchise
2.1 Grant.
(a) City grants to Grantee a non - exclusive and revocable authorization to
make reasonable and lawful use of the Rights -of -Way within the Franchise Area to construct,
operate, maintain, reconstruct and upgrade the Cable System for the purpose of providing Cable
Services, subject to the terms and conditions of this Franchise and applicable law. This
ORD # 06 -524 Page 9
E
Franchise constitutes both a right and an obligation to provide the Cable Services and fulfill the
obligations required by this Franchise.
(b) Grantee has the right to operate its Cable System using City Rights -of-
Way within the Franchise Area in compliance with all City construction codes and regulations.
This Franchise does not waive the requirements of any other City ordinances to the extent that
they do not materially limit the benefits or expand the obligations of Grantee under this
Franchise. The Grantee specifically agrees to comply with all generally applicable City
ordinances. If there is a conflict between the provisions of another City ordinance and this
Franchise, the specific provisions of this Franchise prevail. Grantee has the right to challenge
any City ordinance or decision that conflicts with its rights under this Franchise.
(c) Grantee guarantees that any Affiliate of the Grantee involved in offering
of Cable Service in the Franchise Area, or in the management or operation of the Cable System
in the Franchise Area will also comply with the terms and conditions of this Franchise.
(d) Grantee receives no rights by implication.
(e) This Franchise conveys limited rights and interests only in the Rights -of-
Way in which the City has legal interests. It is not a warranty of title or other legal interest in
any Rights -of -Way. It does not provide Grantee with any interest in any particular location
within the Rights -of -Way. It does not confer rights other than as expressly provided in this
Franchise.
2.2 Use of Rights-of-Wu.
(a) Subject to the terms and conditions of this Franchise and applicable
Grantor regulations, Grantee may erect, install, construct, repair, replace, reconstruct, and retain
in, on, over, under, upon, across, and along the Rights -of -Way within the Franchise.Area, such
ORD # 06 -524 Page 10
E
u
wires, cables (both coaxial and Fiber Optic), conductors, ducts, conduit, vaults, manholes,
amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary
and connected with the operation of a Cable System for the provision of Cable Services within
the Franchise Area.
(b) Grantee must install Cable System facilities in a manner that minimizes
interference with the use of the Rights -of -Way by others, including others that may be installing
communications facilities. City may require that Cable System facilities be installed at a
particular time, at a specific place or in a particular manner as a condition of access to a
particular right -of -way. City may deny access if Grantee is not willing to comply with City's
requirements. City may remove, or require removal of, any facility that is not installed in
compliance with the requirements established by City, or which is installed without prior City
approval of the time, place or manner of installation and charge Grantee for all the costs
associated with removal. Grantee agrees when economically and technically feasible, as
mutually determined by the City and the Grantee, to cooperate with others to minimize adverse
impacts on the Rights -of -Way through joint trenching and other arrangements. Grantee must pay
all costs associated with any requirement of City in the exercise of its police powers to move its
Cable System located in the Right -of -Way.
2.3 Term. The initial term of this Franchise and all its rights, privileges, obligations
and restrictions shall be five (5) years from the effective date of the Franchise, with an automatic
five (5) year extension, including fulfillment of the additional PEG capital support stipulated in
Section 9.1. Should Grantee not wish to accept the Franchise extension, Grantee shall give City
written notice at least twelve (12) months in advance of the end of the initial term. Such notice
ORD # 06 -524 Page 11
0
i
will not be given for the purpose of renegotiating the terms of this Franchise during the extension
and such renegotiation will not occur.
2.4 Effective Date.
(a) This Franchise and its rights, privileges, and the contractual relationship it
establishes take effect from the effective date of this Franchise as specified in this section.
(b) This Franchise and its terms and provisions must be unconditionally
accepted by the Grantee by the submission of a written instrument, in substantially the form
attached as Exhibit A executed and sworn to by a corporate officer of the Grantee before a
Notary Public, and filed with the City within sixty (60) days after the City's passage and
approval of this Franchise. Such instrument shall evidence the unconditional acceptance of this
Franchise and the promise to comply with and abide by all its provisions, terms, and conditions.
(c) The grant of this Franchise has no effect on the Grantee's duty under the
prior Franchise or any ordinance or agreement of the parties in effect prior to the effective date
of this Franchise to indemnify or insure the City against acts and omissions occurring during the
period that the prior Franchise was in effect. Nor does it have any effect upon liability to pay all
Franchise Fees that were due and owed under prior Franchises and ordinances.
2.5 Franchise Non - Exclusive. This Franchise is non - exclusive and is subject to all
prior rights, interests, agreements, permits, easements or licenses granted by City to any Person
to use any property, Rights -of -Way, easement, right, interest, or license for any purpose. This
includes the right of City to use same for any purpose it deems fit, including the same or similar
purposes allowed Grantee. Subject to Section 2.6, City may at any time grant authorization to
use the Rights -of -Way for any purpose not incompatible with Grantee's authority under this
Franchise and for such additional Franchises for Cable Systems as City deems appropriate.
ORD # 06 -524 Page 12
0
•
2.6 Grant of Other Franchises. If City enters into a Franchise, permit, license,
authorization or any other agreement with any other Person or entity to enter into the City's
Rights -of -Way or Streets to construct or operate a Cable System or provide Cable Service to any
part of the Franchise Area, the terms and conditions will not, taken together as a whole, be
materially either more favorable or less burdensome than those of this Franchise, in order that
one operator not be granted an unfair competitive advantage over another, and to provide all
parties equal protection under the law.
2.7 Familiarity with Franchise. The Grantee acknowledges and warrants by
acceptance of the rights, privileges and agreement granted that it has carefully read and fully
comprehends the terms and conditions of this Franchise. Grantee accepts all reasonable risks of
the meaning of the provisions, terms and conditions. Grantee further acknowledges that it has
fully studied and considered the requirements and provisions of this Franchise, and finds they are
commercially practicable and consistent with all local, State and federal laws and regulations
currently in effect, including the Cable Act.
2.8 Effect of Acceptance. By accepting this Franchise, the Grantee: (1)
acknowledges and accepts the City's legal right to issue and enforce the Franchise; (2) agrees
that it will not oppose the City's lawful intervention in any legal or regulatory proceeding
affecting the Cable System; (3) accepts and agrees to comply with all provisions of this
Franchise; and (4) agrees that the Franchise was granted under processes and procedures
consistent with applicable law, and that it will not raise any claim to the contrary.
2.9 Police Powers. Grantee's rights are subject to the police powers of City to adopt
and enforce ordinances necessary to the safety, health and welfare of the public. Grantee agrees
to comply with all applicable laws, ordinances and regulations adopted under the police powers
ORD # 06 -524 Page 13
0
•
of City. Any conflict between the provisions of this Franchise and any other present or future
lawful exercise of City's police powers will be resolved in favor of the latter.
2.10 Renewal. Any renewal of this Franchise shall be governed by and comply with
the provisions of Section 626 of the Cable Act, as amended. The five (5) year extension in
Section 2.3 is not a renewal as defined herein.
2.11 Service Area. Grantee will provide the Cable Service authorized under this
Franchise throughout the Franchise Area.
2.12 Annexation. Upon the addition or annexation for any area in which Grantee or an
Affiliate owns or operates any facilities, such facilities will immediately be subject to this
franchise, unless a conflict exists based on ownership by a legal entity other than Grantee. In the
event of such conflict, all parties will meet to resolve in good faith. All administrative changes
related to the annexation, including, but not limited to payment of franchise fees, billing,
reporting, and recordkeeping, will be made by Grantee within one hundred twenty (120) days of
the annexation or as mutually agreed upon by all parties.
Section 3. Franchise Fee and Financial Controls
3.1 Franchise Fee. As compensation for the use of City's Rights -of -Way or Streets,
Grantee will pay as a Franchise Fee to City throughout the duration of this Franchise an amount
equal to five percent (5 %) of Grantee's Gross Revenues. Accrual of such Franchise Fee begins
on the effective date of this Franchise. Disputes concerning the provisions of this Section will be
resolved under the dispute resolution procedures in Section 15.
3.2 Payments and Reports. Grantee's Franchise Fee payments to City will be
computed at the end of each month and shall be due and payable for the preceding month no later
than 30 (thirty) days after the last day of the preceding month. Each payment must be
ORD # 06 -524 Page 14
�J
•
accompanied by a written report to Grantor, verified by Grantee and in a form reasonably
acceptable to Grantor.
3.3 Acceptance of Payment. Acceptance of any payment will not be construed as an
accord by City that the amount paid is the correct amount. Acceptance of any payment will not
be construed as a release of any claim City may have for further or additional sums payable, or
for the performance of any other obligation of Grantee.
3.4 Annual Franchise Fee Reports. Grantee must, no later than one hundred twenty
(120) days after the end of each calendar year, furnish to City an audited statement stating the
total amount of Gross Revenues and all payments, deductions, and computations for the period
covered by the payments.
3.5 Audits. On an annual basis, no more frequently than every twelve (12) months,
and with thirty (30) days' prior written notice, City has the right to annually conduct an
independent audit of Grantee's records related to this Franchise and to re- compute any amounts
payable under this Franchise. Grantee must cooperate in making all relevant records available
upon request as allowed under Section 7 of this Franchise. City will in good faith attempt to
complete each audit within six (6) months. The audit period will not be longer than the previous
three (3) years unless City has information relating to previous years that raises doubt as to the
accuracy of previous payments, but in which case the audit period may be no longer than six (6)
years. Any additional amounts due to City as a result of the audit must be paid within 60 (sixty)
days following written notice to the Grantee that includes a copy of the audit findings. If the
audit shows that Franchise Fees were underpaid by three percent (3 %) or more in a calendar
year, Grantee must pay the first $25,000 of the total cost of the audit. Disputes concerning the
ORD # 06 -524 Page 15
• •
provisions of this Section will be resolved under the dispute resolution procedures in Section
15.1.
3.6 Financial Records. Grantee will meet with City upon request to review Grantee's
method of record - keeping, financial reporting, the computing of Franchise Fee obligations and
other procedures. This obligation applies to all information and understanding the City deems
necessary for reviewing reports and records consistent with Section 7 of this Franchise.
3.7 Interest on Late Payments. If a Franchise Fee payment or other sum is not
received by the City on or before the due date, or is underpaid, the Grantee must pay in addition
to the payment, or sum due, interest from the due date at a rate of twelve percent (12 %) per
annum.
3.8 Additional Commitments Not Franchise Fees. No term or condition in this
Franchise will in any way modify or affect Grantee's obligation to pay Franchise Fees, consistent
with federal law. The total sum of Franchise Fee payments and additional commitments in this
Franchise may total more than five percent (5 %) of Grantee's Gross Revenues in any twelve (12)
month period. Grantee agrees that the additional commitments are not Franchise Fees, nor will
they be offset or credited against any Franchise Fee payments due to City. They do not represent
an increase in Franchise Fees to be passed through to Subscribers under any federal law. Access
Fees are not Franchise Fees and will not be offset against Franchise Fees.
3.9 Payment on Termination. If this Franchise terminates for any reason, Grantee
must file with City within one hundred twenty (120) calendar days of the date of the termination
a financial statement certified by an independent certified public accountant showing the Gross
Revenues received by Grantee since the end of the previous period for which Franchise Fees
were paid. Within sixty (60) days of the filing of that statement with the City, Grantee must pay
ORD # 06 -524 Page 16
•
0
any unpaid amounts. If Grantee fails to satisfy its remaining financial obligations required by
this Franchise, City may use the funds available in security provided by the Grantee to satisfy
those obligations.
3.10 Duty to Cooperate. City agrees to exercise prompt and diligent efforts to verify
whether billing addresses are in or outside the Franchise Area upon the written request of
Grantee.
Section 4. Administration and Regulation
4.1 General Provisions. City has the power and right to administer and enforce the
requirements of this Franchise, in accordance with the requirements of applicable law, including
the Cable Act. City may delegate administrative responsibilities to any agent in its sole
discretion and will provide notice to Grantee on any such delegation.
4.2 Changes in Law. The Grantee and City are entitled to all rights and are bound by
all applicable changes in local, State, and federal law that occur subsequent to the effective date
of this Franchise. However, if such changes in law substantially reduce Franchise Fees, modify
Grantee's I -Net obligations, reduce Franchise Access support, or authorize any facilities -based
entity to provide Cable Services or comparable video programming within the franchise area
without a franchise granted by the City, the City and Grantee agree at the request of either party
to enter into good faith negotiations for up to six (6) months to. resolve the issues. If resolution is
not reached within this period, and the period is not extended by mutual agreement, the term of
this Franchise will be reduced by three (3) years and the parties will commence the renewal
process in accordance with the Cable Act.
4.3 Rates and Charges. All Grantee rates and charges related to or regarding Cable
Services are subject to regulation by City to the full extent authorized by applicable law.
ORD # 06 -524 Page 17
•
4.4 Rate Discrimination. All Grantee rates and charges must be published (in the
form of a publicly - available rate card), made available to the public, and must be non-
discriminatory as to all Persons of similar classes, under similar circumstances and conditions.
Grantee must apply its rates in accordance with governing law. Grantee must permit Subscribers
to make any in- residence connections the Subscriber chooses without additional charge and
without penalizing the Subscriber. However, if any in -home connection requires service from
Grantee due to signal quality, signal leakage or other factors, caused by improper installation of
such in -home wiring or faulty materials of such in -home wiring, the Subscriber may be charged
appropriate service charges by Grantee. This does not prohibit:
(a) The temporary reduction or waiving of rates or charges in conjunction
with valid promotional campaigns;
(b) The offering of reasonable discounts to senior citizens and /or
economically disadvantaged citizens;
(c) The offering of bulk discounts for multiple Dwelling Units.
4.5 Filing of Rates and Charges.
(a) Throughout the term of this Franchise, Grantee must provide every six (6)
months, and upon request, an updated rate card to the City detailing applicable rates and charges
for Cable Services provided under this Franchise. This does not require Grantee to file rates and
charges under temporary reductions or waivers of rates and charges in conjunction with
promotional campaigns.
(b) Upon request, Grantee will provide a complete schedule of current rates
and charges for all Leased Access Channels, or portions of such Channels, provided by Grantee
and the terms and conditions for lease established by the Grantee.
ORD # 06 -524 Page 18
•
4.6 Late Fees. If the Grantee assesses any kind of penalty fee for late payment, such
fee will comply with applicable law.
4.7 Time Limits Strictly Construed. Whenever this Franchise sets forth a time for any
act to be performed by Grantee, such time is of the essence, and any failure of Grantee to
perform within that time allows the City to initiate the enforcement procedures of this Franchise.
Section 5. Financial and Insurance Requirements
5.1 Indemnification.
(a) General Indemnification. Grantee must, at its own cost and expense,
indemnify, hold harmless, and defend City and its officers, officials, boards, commissions,
authorized agents and employees against any action or claim for injury, damage, loss, liability,
cost or expense, including court and appeal costs and attorneys' fees and expenses, arising from
any casualty or accident to Person or property. This includes without limitation copyright
infringement, defamation, and all other damages in any way arising out of, or by reason of, any
construction, excavation, operation, maintenance, reconstruction, or any other act done under this
Franchise, by or for Grantee, its agents, or its employees, or by reason of any neglect or omission
of Grantee its agents or its employees. Grantee will consult and cooperate with the City while
conducting its defense of the City.
(b) Duty to Give Notice and Tender Defense. If a claim or action arises, City
or any other indemnified party will tender the defense of the claim to Grantee and the defense
will be at Grantee's expense. City may participate in the defense of a claim. Grantee may not
agree to any settlement of claims affecting City without City's written approval. The City will
give the Grantee timely written notice of any claim or of the commencement of any action, suit
or other proceeding covered by the indemnity in this section. City will cooperate fully.
ORD # 06 -524 Page 19
(c) Non - waiver. The fact that Grantee carries out any activities under this
Franchise through independent contractors does not constitute an avoidance of or defense to
Grantee's duty of defense and indemnification under this Section.
(d) If separate representation to fully protect the interests of both parties is
necessary, such as a conflict of interest between the City and the Grantee, Grantee will pay
expenses incurred by the City in defending itself. The City's expenses include all out -of- pocket
expenses, such as consultants' fees.
5.2 Insurance Requirements.
(a) General Requirement. Grantee must have adequate insurance during the
entire term of this Franchise to protect the City against claims for injuries to Persons or damages
to property which in any way relate to, arise from or are connected with this Franchise, or
involve Grantee, its agents, representatives, contractors, subcontractors and their employees.
(b) Initial Insurance Limits. Grantee must keep insurance in effect in
accordance with the minimum insurance limits set by the City from time to time. The Grantee
must obtain policies for the following initial minimum insurance limits:
(1) Commercial General Liability: $5,000,000 combined single limit
per occurrence for bodily injury, personal injury and property damage, and for those policies
with aggregate limits, a $5,000,000 aggregate.
(2) Automobile Liability: $3,000,000 combined single limit per
person for bodily injury and property damage and $5,000,000 aggregate in any one (1) accident
or occurrence;
(3) Employer's Liability: $1,000,000; and
(4) Worker's Compensation coverage consistent with State law
ORD # 06 -524 Page 20
• 0
(c) Endorsements.
(1) All policies must contain, or be endorsed so that:
(i) The City is designated as additional insured;
(ii) As it relates to this Franchise, the Grantee's insurance
coverage is the primary insurance with respect to the City, its officers, officials, boards,
commissions, employees and duly authorized agents. Any insurance or self - insurance
maintained by the City, its officers, officials, boards, commissions, employees and agents will be
in excess of the Grantee's insurance and will not contribute to it; and
(iii) Grantee's insurance must apply separately to each insured
against whom a claim is made or lawsuit is brought, except with respect to the limits of the
insurer's liability.
(2) The insurance must provide that it may not be cancelled or
materially altered so as to be out of compliance with the requirements of this section without 30
days' written notice first being given to City.
(d) Acceptability of Insurers. The insurance obtained by Grantee must be
placed with insurers with an A.M. Best's rating of no less than "A" and authorized to transact
business within the State.
(e) Verification of Coverage. The Grantee must furnish the City with
certificates of insurance or a copy of the page of the policy reflecting blanket additional insured
status. The certificates for each insurance policy are to be signed by a Person authorized by that
insurer to bind coverage on its behalf. The certificates for each insurance policy are to be on
standard forms or such forms as are consistent with standard industry practices, and are to be
received by the City prior to the commencement of activities associated with this Franchise.
ORD # 06 -524 Page 21
• •
5.3 Performance Bond.
(a) Within sixty (60) days of the Effective Date of this Franchise, Grantee will
provide a performance bond to the City, in the total sum of $250,000.00 which will remain in
effect for the term of this Franchise in a form acceptable to the City. The performance bond is to
ensure the faithful performance of Grantee's obligations under the Franchise including the
payment by the Grantee of any penalties, claims, liens, fees, or taxes due the City which arise by
reason of the operation, maintenance, or construction of the Cable System within the Franchise
Area, except as otherwise provided herein. In the event Grantee undertakes construction, the
cost of which exceeds $100,000, the City shall have the option of requesting the Grantee provide
and maintain, at its sole cost and expense, an additional performance bond. The amount of the
bond shall be one - hundred twenty percent (120 %) of the cost of the work or improvements
covered by the bond based on estimated costs immediately following the expiration of the bond.
Grantee will pay all premiums or other costs associated with maintaining the bond. The City may
reduce the amount of the performance bond consistent with Grantee's performance of its
responsibilities under this Franchise and applicable law.
(b) The performance bond will be from a major financial institution or surety.
The performance bond will not require the consent of the Grantee prior to the collection by the
City of any amounts covered by the performance bond. The City will provide to Grantee
reasonable written notice and opportunity to cure any alleged non - compliance of any provision
of the Franchise or any penalties, claims, liens, fees or taxes due the City.
(c) If the Franchise is terminated, or upon expiration or transfer of the
Franchise, the City will return the original bond or sign the necessary documentation to release
the bond promptly if Grantee does not have any unexpired obligations with respect to right of
ORD # 06 -524 Page 22
0
•
way work and does not owe funds to the City or is not in default of a material provision of the
Franchise.
Section 6. Customer Service
City and Grantee recognize the importance of customer service in the grant of this
Franchise. Grantee agrees to comply with all of the provisions in this Franchise, with FCC
Customer Service Standards as they may be amended, and with any customer service rules
adopted by City.
6.1 Subscriber Contracts. Grantee will not enter into a contract with any Subscriber
that is in any way inconsistent with the terms of this Franchise.
6.2 Subscriber Privacy. Grantee will comply with privacy rights of Subscribers in
accordance with applicable law.
6.3 Payment Center. Throughout the Franchise term, the Grantee must maintain, at a
minimum, one payment center located in the Franchise Area. It must be open during Normal
Business Hours to allow Subscribers to return Subscriber equipment and to pay bills.
6.4 Telephone Answering Standards:
(a) Trained company representatives will be available to respond to telephone
inquiries during Normal Business Hours. Outside Normal Business Hours, the access line may
be answered by a service or an automated response system, including an answering machine. A
trained company representative must respond to inquiries that are received by Grantee's
answering service or automated response system before the end of the next business day.
(b) Under Normal Operating Conditions, telephone answer time by a
customer representative including wait time, must not exceed thirty (30) seconds from when the
connection is made. If the call needs to be transferred, transfer time must not exceed thirty (30)
ORD # 06 -524 Page 23
0 0
seconds. These standards must be met for no less than ninety (90) percent of all calls under
Normal Operating Conditions, measured quarterly.
(c) Under Normal Operating Conditions, no more than three percent (3 %) of
all callers will receive a busy signal, measured quarterly.
(d) Failure to meet these standards subjects Grantee to enforcement actions set
forth in Section 15
6.5 Service Calls, Installations, and Outages.
(a) Service calls and response time. Under Normal Operating Conditions,
each of the following standards will be met in no fewer than ninety -five percent (95 %) of
applicable events, as measured on a quarterly basis. For purposes of calculating compliance with
and determining enforcement of these standards, each request for service or installation will be
counted as one event:
(1) Installations to locations that are located within one hundred
twenty -five feet (125') of the existing distribution Cable System will be performed within seven
(7) business days after an order has been placed.
(2) Under Normal Operating Conditions, if Grantee cannot perform
Installations within the times specified above, the Grantee shall offer the Subscriber a credit
equal to the charge for a Standard Installation or other compensation of equal or greater value.
(3) For installations to locations that are more than one hundred
twenty -five feet (125') from the existing distribution Cable System, in accordance with Section
13.2, service must be provided within thirty (30) days of the date the Person requesting service
agrees to pay the charges associated with the installation. The Grantee may charge for extending
service in an area where the Grantee is required to provide service under Section 13.2.
ORD # 06 -524 Page 24
0 •
(4) The "appointment window" alternatives for installations, service
calls, and other installation activities will be either a specific time or, at maximum, a four (4)
hour time block during Normal Business Hours. The Grantee may schedule service calls and
other installation activities outside of Normal Business Hours for the express convenience of the
customer.
(5) Grantee may not cancel an appointment with a Person after the
close of business on the business day prior to the scheduled appointment.
(6) If Grantee's representative is running late for an appointment with
a Subscriber and will not be able to keep the appointment as scheduled, Grantee will contact
Subscriber. The appointment will be rescheduled at a time that is convenient for the Subscriber
and as soon as practical.
(7) Excluding conditions beyond the control of the Grantee, the
Grantee will begin working on Service Interruptions promptly and in no event later than twenty-
four (24) hours after the interruption becomes known to the Grantee. The Grantee must begin
actions to correct other service problems the next business day after notification of the service
problem.
(b) Service interruptions shall occur only during periods of minimal use of
system and shall not occur except for good cause. Under Normal Operating conditions, if after
twenty -four (24) hours service is not restored to a Subscriber, the Grantee shall provide a refund
or credit or other compensation of equal or greater value.
ORD # 06 -524 Page 25
•
0
6.6 Notice Requirements.
(a) The Grantee will provide written information on each of the following
areas at the time of installation of service, at least annually to all Subscribers, and at any time
upon request:
(1) Products and services offered;
(2) Prices and options for programming services and conditions of
subscription to programming and other services. To apprise Subscribers of the charges they may
incur, Grantee must note that advertised rates are subject to additional taxes and fees;
(3) Installation and service maintenance policies;
(4) Instructions on how to use the Cable Service;
(5) Channel positions of programming carried on the Cable System;
(6) Billing and complaint procedures, including the City's address and
telephone number.
(b) Comcast shall provide copies of all such materials to the City concurrent
with their distribution to Subscribers.
(c) Failure to meet these standards subjects Grantee to enforcement action
under Section 15.
6.7 Special Notice Procedures.
(a) At any time a Person subscribes to any service, the Person must be
specifically informed whether there will be a charge to drop the service.
(b) Subscribers must be notified thirty (30) days in writing in advance of any
changes in rates, programming services, or Channel positions unless otherwise expressly
provided by federal law.
ORD # 06 -524 Page 26
0
S
(c) The City must be notified of any change in rates, programming services,
Channel position, or policy at least thirty (30) days in advance of such change by letter delivered
to the City. When such notification is impossible because the change is beyond the control of
Grantee or any Affiliate, the notice must be given as quickly as possible. The Grantee must make
its best efforts to submit the content of notices to Subscribers regarding such changes to the City
for review and comment at least ten (10) days prior to its printing.
(d) Failure to meet these standards subjects Grantee to enforcement action
under Section 15.
6.8 Billine.
(a) Bills will be clear, concise and understandable. Bills must be fully
itemized, including basic and Premium Service charges, and equipment charges. Bills will also
clearly delineate all activity during the billing period, including optional charges, discounts,
rebates and credits.
(b) In case of a billing dispute, the Grantee must respond to a written
complaint from a Subscriber within thirty (30) days.
(c) Refund checks will be issued promptly, but no later than either:
(1) The Subscriber's next billing cycle following resolution of the
request or thirty (30) days, whichever is earlier, or
terminated.
(2) The return of the equipment supplied by the Grantee if service is
(d) Credits for service will be issued no later than the customer's next billing
cycle following the determination that a credit is warranted.
ORD # 06 -524 Page 27
• •
(e) For purposes of billing, a request for disconnection will be effective
immediately upon the Subscriber's oral or written request. The Subscriber may not be charged
for any service provided after the request, and is entitled to refunds on any prepaid period.
(f) Subscriber bills from Grantee will include the name, address, and
telephone number designated by the City.
(g) Failure to meet these standards will subject Grantee to enforcement
actions under Section 15.
6.9 Rate Discounts.
Grantee shall offer a discount to those low income subscribers, as determined by
the City, consistent with Federal standards, for individuals permanently disabled or sixty -five
(65) years of age or older who are the legal owner or lessee /tenant of their residence. Such
discounts shall consist of a thirty percent (30 %) reduction in the cost of the Basic Service tier or
the Basic Service portion of Expanded Basic Service tier.
Section 7. Reports and Records
7.1 Open Records. The City has the right to inspect books and records of Grantee,
which are reasonably necessary to monitor Grantee's compliance with the provisions of Cable
Services under this Franchise. Grantee may not deny City access to any of Grantee's records on
the basis that Grantee's records are under the control of any parent corporation, Affiliated entity,
or a third party. Within ten (10) days or a mutually agreeable date and time, of receiving written
notice from the City to inspect the Grantee's books and records under this provision, the Grantee
shall accommodate the City's request at the Grantee's local business office, during normal
business hours, and without unreasonably interfering with Grantee's business operations. The
City has the right to request a copy of the books and records that are not identified as proprietary
ORD # 06 -524 Page 28
•
•
or confidential as described under Section 7.2. If the requested books and records are
voluminous or identified as proprietary and confidential or for security reasons cannot be copied
or removed, then Grantee shall continue to make the books and records available at the Grantee's
local business office until the City has completed their examination.
7.2 Proprietary and Confidential Records. Grantee shall not be required to disclose
information that it reasonably deems to be proprietary or confidential in nature, nor disclose
books and records of any affiliate of Grantee that is not providing Cable Service in the Franchise
Area. In the event the Grantee asserts that certain information is proprietary or confidential in
nature, the Grantee shall identify generally the information which it deems propriety and
confidential and the reasons for its confidentiality in writing to the City. Grantee shall be
required to show the documents to the appropriate City staff, but shall not be required to provide
copies of records or information it asserts are proprietary or confidential. Subject to the limits of
Washington law, the City agrees to treat any information disclosed by the Grantee as confidential
and only to disclose it to those employees, representatives, and agents of the City that have a
need to know in order to enforce this Franchise and who agree to maintain the confidentiality of
all such information. The Grantee shall not be required to provide Subscriber information in
violation of Section 631 of the Cable Act or any other applicable federal or state privacy law.
For purposes of this Section, the terms "proprietary or confidential" include, but are not limited
to, information relating to the Cable System design, customer lists, marketing plans, financial
information unrelated to the calculation of franchise fees or rates pursuant to FCC rules, or other
information that is reasonably determined by the Grantee to be competitively sensitive. If City
receives a demand from any Person for disclosure of any information designated by Grantee as
confidential, City consistent with applicable law will advise Grantee and provide Grantee with a
ORD # 06 -524 Page 29
• •
copy of any written request by the party demanding access to such information. If Grantee
believes that the disclosure of such documents by City would interfere with Grantee's rights
under federal or State law, Grantee will institute an action in the King County Superior Court to
prevent the disclosure by City of such documents. Grantee will join the Person requesting the
documents to such an action. Grantee will defend, indemnify and hold City harmless from any
claim or judgment including any penalties or costs under RCW 42.17.
7.3 File for Public Inspection. Throughout the term of this Franchise, the Grantee
will maintain a file at its business office that is available for public inspection during normal
business hours, including those documents required pursuant to the FCC's rules and regulation.
7.4 Records Available. Grantee must at all times maintain:
(a) A route map that depicts the general location of the Cable System facilities
placed in the Right -of -Ways. The route map shall identify Cable System facilities as aerial or
underground and is not required to depict cable types, number of cables, electronic equipment,
and service lines to individual Subscribers. The Grantee shall also provide the map, if requested,
in electronic format of the aerial /underground facilities in relation to the Right -of -way centerline
reference to allow the City to add this information to City's GIS program;
(b) A copy of all FCC filings on behalf of Grantee, its parent corporations or
Affiliates that relate to the operation of the Cable System in the Franchise Area;
(c) A copy of Grantee's published rates and Channel line -up for Cable
Service in the Franchise Area;
(d) A summary report of all Complaints received and Grantee's actions in
response to those complaints in a manner consistent with the privacy rights of Subscribers.
ORD # 06 -524 Page 30
0
7.5 Annual Reports. Upon written request by the City, within ninety (90) days of
receipt of the City's request, Grantee shall submit to the City a written report, which shall
include the following information:
(a) The most recently completed annual corporate report;
(b) A gross revenue statement for the preceding year and all deductions and
computations for the period. Such statement shall be reviewed by a certified public accountant,
who may also be the chief financial officer or controller of Grantee, prior to submission to the
City;
(c) A summary of the previous year's activities regarding the development of
the Cable System, including, but not limited to, beginning and ending plant miles constructed,
any technological changes occurring in the Cable System;
(d) A summary report of all Complaints received and Grantee's actions in
response to those complaints in a manner consistent with the privacy rights of Subscribers.
7.6 Submittal of Documents. Upon written request, Grantee will provide City with
copies of any pleading, notifications, communications and documents of any kind submitted by
Grantee or its Affiliates to any federal, State, or local court, regulatory agency or other
government agency if such documents relate to the operations of Grantee's Cable System within
the Franchise Area. Grantee will submit such documents to City no later than thirty (30) days
after receipt of City's request. Grantee will not claim confidential, privileged or proprietary
rights to such documents unless under federal, State, or local law such documents have been
determined to be confidential, privileged, or proprietary by a court of competent jurisdiction, or a
federal or State agency.
ORD # 06 -524 Page 31
•
7.7 False Statements. Any intentional false or misleading statement or representation
in any report required by this Franchise will be a material breach of this Franchise and may
subject Grantee to all remedies available to City under this Franchise or otherwise.
7.8 Penalties for Noncompliance. The ability for City to obtain records and
information from Grantee is critical to the administration of this Franchise. Therefore, Grantee's
failure to comply with the requirements of this Section may result in enforcement action as
prescribed in Section 15.
7.9 Report Expense. All reports and records required under this or any other Section
must be furnished without cost to City.
Section 8. Proarammim and Channel Capacity
8.1 Required Programming Categories. Grantee will provide broad categories of
programming required in this Franchise, and under all federal, State, and local laws and
regulations. Grantee will enable provision of at least the following initial broad categories of
programming to the extent such categories are reasonably available:
(a) News, weather and information programming;
(b) Sports programming;
(c) General entertainment programming;
(d) Children, education, and family oriented programming;
(e) Arts, culture and performing arts.
(f) Science /documentary;
(g) Programming for diverse ethnic and minority interests.
8.2 Obscenity. Grantee will not transmit or permit to be transmitted over any
Channel subject to its editorial control any programming that is obscene.
ORD # 06 -524 Page 32
• 0
8.3 Parental Control Device. Upon request by any Subscriber, Grantee will make
parental control or lockout device traps or filters available to enable a Subscriber to control
access to both the audio and video portions of any or all Channels. Grantee reserves the right to
charge the Subscriber a fee that does not exceed Grantee's actual costs.
8.4 Connection to Public Facilities.
Upon request Grantee must provide without charge, a standard installation and
one outlet of basic and Expanded Basic Service to public use buildings, as designated by the
City. This shall include fire station(s), police station(s), libraries, School(s), etc., but portions of
buildings housing prison/jail populations shall be excluded from this requirement. The recipient
of the service will secure any necessary right of entry. The Cable Service will not be used for
commercial purposes, and the outlets will not be located in areas open to the public excepting
one outlet to be located in a public lobby in City Hall which will be used by the public for
viewing City Council meeting broadcasts. The City will take reasonable precautions to prevent
any use of the Grantee's Cable System in any manner that results in inappropriate use, loss or
damage to the Cable System. The City will hold the Grantee harmless from any and all liability
or claims arising out of the provision and use of the Cable Service required by this section. The
I
Grantee is not required to provide service where a non - standard installation is required unless the
City or other agency agrees to pay the incremental cost of any necessary Cable System extension
or non - standard installation. If additional outlets of Cable Service are provided to such
buildings, the building occupant will pay the usual installation and service fees. If a competing
Cable System, including a Direct Broadcast Satellite provider, is providing complimentary cable
video service, there is no obligation for Grantee to provide like services.
ORD # 06 -524 Page 33
•
8.5 Continuity of Service.
•
(a) It is the right of all Subscribers to continue to receive Cable Service from
Grantee insofar as their financial and other obligations to Grantee are satisfied. Subject to the
force majeure provisions of this Franchise, Grantee will use its best efforts to ensure that all
Subscribers receive continuous, uninterrupted Cable Service regardless of the circumstances.
(b) In the event of a change in ownership, or in the event a new Cable
Operator acquires the Cable System in accordance with this Franchise, Grantee will cooperate
with City and such new Cable Operator in maintaining continuity of service to all Subscribers.
Section 9. Public Educational and Governmental Access
9.1 PEG Capital Support.
(a) Not later than ninety (90) days from the effective date of this Franchise,
the Grantee will remit to the City:
(1) An initial capital contribution payment of $200,000. Grantee will
recover the capital contribution from Subscribers at $0.35 per month per Subscriber. When
Grantee has recovered the initial capital contribution, without discount for the time value of
money, Grantee will remit to the City on a monthly basis an amount equal to $0.35 per
Subscriber per month for the remaining initial term of the Franchise.
City:
(2) Unrestricted technology grant of $100,000.
(b) On the commencement of the extension term, Grantee will remit to the
(1) An additional capital contribution payment of $200,000. Grantee
will recover capital contribution from Subscribers at $0.35 per month per Subscriber, and when it
ORD # 06 -524 Page 34
• •
is fully recovered, without discount for the time value of money, Grantee will remit to the City
an amount equal to $0.35 per Subscriber per month for the remaining life of the Franchise; and
(2) An unrestricted technology grant of $100,000.
(c) The City agrees that all capital contribution amounts, excluding
technology grants, paid by the Grantee may be added to the price of Cable Services and collected
from Subscribers as "external costs," as such term is used in 47 C.F.R. §76.922 on the date of
this Franchise.
9.2 Access Reporting. Within one - hundred twenty (120) days of Grantee's written
request, City will submit a report on the use of Access Channels and capital contribution.
Grantee may review the records of the City regarding the use of the capital contribution after a
written request is received by City.
9.3 Manap-ement and Control of Access Channels.
(a) City may authorize Designated Access Providers to control, operate, and
manage the use of all Access facilities provided by Grantee under this Franchise, including the
operation of Access Channels. The City or its designee may formulate rules for the operation of
the Access Channels consistent with this Franchise. The City may be a Designated Access
Provider.
(b) Grantee will cooperate with City in the use of the Cable System and for
the provision of Access Channels.
9.4 Access Channels.
(a) As of the effective date of this Franchise, the City is individually
programming one (1) Government Access Channel, currently available on Channel 21. Two (2)
channels are available and being used for Educational and Public Access programming.
ORD # 06 -524 Page 35
0
•
(b) Under the terms of this Franchise, the Grantee shall continue to make
available a total of three (3) Access Channels to facilitate the City's needs for Access
Programming. Notwithstanding anything to the contrary set forth herein, if City desires to
program Government, Educational, or Public Access Channels above and beyond their existing
Government Access Channel, the Grantee will implement the City's request within the existing
Access Channels currently airing the local Educational and Public Access programming.
(c) The City acknowledges that the Grantee's Cable System provides
additional benefit to the City's Access Programming needs beyond the requirements listed
above. This is accomplished through the inclusion of other regional Access programming within
the regional Channel line -up that services the Franchise Area, for example the University of
Washington TV and Community College educational programming. The Grantee will provide
the Subscribers in the Franchise Area with the other regional Access Channels, so long as the
programmers offer them for use on the Cable System.
(d) The City may partner with other neighboring communities, serviced by the
Grantee, to use the Government, Educational, or Public Access Channels for multi- juri sdictional
government programming.
(e) All assigned Access Channels can be used to transmit programming in any
format that is technically compatible with the Cable System, including video, audio only,
secondary audio or text (character generated) messages.
(f) Grantee will facilitate the listing of City's Government Access
programming on an interactive programming guide (such as TV GUIDE) on Tiers of service in
which it is available. This requirement will only be enforceable so long as the service is
ORD # 06 -524 Page 36
0
•
available on Grantee's Cable System and City agrees to pay for all costs associated with the
service.
9.5 Changes in Technology. If Grantee makes changes in Grantee's signal delivery
technology that directly affects the signal quality or transmission of Access programming,
Grantee will at its own expense take necessary technical steps and /or provide necessary technical
assistance, including acquisition of all necessary equipment and full training of Access Center
personnel, to ensure that the capabilities of Access Channels are not diminished or adversely
affected by such change and shall match the standards of the rest of the Cable System.
9.6 Access Channels on Basic Service. All Access Channels provided to Subscribers
under this Franchise must be included by Grantee as a part of it Basic Service.
9.7 Access Channel Location/Relocation and Bill Insertions.
(a) Grantee will carry City's programming on the Channel designated for
local government programming on its regional Channel line -up, currently Channel 21, so that the
City will receive the same benefits from such carriage as other jurisdictions in western
Washington. Grantee will use reasonable efforts to minimize the movement of City - designated
Access Channel assignments and maintain common Channel assignments for compatible Access
programming. Grantee will provide 90 (ninety) days notice to the City prior to any relocation of
City - designated Access Channels, and will reimburse the City for its costs incurred for any
promoting, marketing, advertising, and notice of the Channel change up to $5,000.
(b) Upon request by City, Grantee will provide City the opportunity to include
one Access Channel bill insertion and one Access Channel bill message per year. Grantee will
be responsible for the costs of printing its bill insertion or message, the cost of inserting the
ORD # 06 -524 Page 37
0 0
information into Grantee's bills, and for any incremental postage costs. Bill insertions will
conform to Grantee's reasonable mailing requirements.
9.8 Return Lines.
(a) Grantee must at its expense continue providing, from its Headend or hub,
a fiber connection to the City Hall at 33325 8th Avenue South to enable the distribution of
Access programming to Subscribers on the Access Channel(s) within the Franchise Area.
(b) At the written request of the City, Grantee must construct and maintain
fiber -optic return lines to the designated distributor's facilities from new or relocated Designated
Access Providers delivering Public, Education, and Government Access programming for
distribution on the Cable System in the Franchise Area. Any new or relocated return line
construction costs shall be paid by the City and be completed within six (6) months after
receiving a valid purchase order or check from the City.
9.9 Technical Quality. The Grantee must maintain Access Channels at the same or
better level of technical quality and reliability required by this Franchise. The Grantee must
provide routine maintenance and repair and replace as necessary all Grantee's transmission
equipment. This includes fiber transmitters and receivers, Channel modulators, associated cable
and equipment required to carry a quality signal to and from the City's Designated Access
Providers' facilities and the Grantee's Headend or hub.
9.10 Access Channel Interconnections.
(a) Grantee acknowledges that it is the City's goal to further the community's
needs and interests by providing for the interconnection of Access Channels between the City
and surrounding communities. Therefore, Grantee will implement Access Channel
interconnections, at the cost of the City (such cost to be agreed upon by both parties prior to
ORD # 06 -524 Page 38
beginning of construction), and maintain existing interconnections which facilitate the sharing of
Access programming between and among the City and surrounding (geographically adjacent, but
not necessarily contiguous) communities that are served by the same Headend or hub. The City
shall have the right to use any Access programming provided to it through an interconnection
and approved for use by the interconnecting municipality. Notwithstanding anything to the
contrary, the City shall not require Grantee to interconnect with a newly authorized Cable
Operator or any facilities -based entity to provide Cable Services or comparable video
programming within the franchise area without a franchise or other similar lawful authorization
granted by the City. In those cases, the recently authorized Grantee shall be required to connect
to the City access studio(s) to receive the City's Access programming for distribution on their
Cable System. All interconnects in place as of the effective date of this Franchise will be
maintained throughout its term. Any new interconnects will be completed and functioning
within ninety (90) days from Acceptance of the Franchise by Grantee or from date of request.
(b) Grantee will make the necessary modifications to allow the City to receive
programming from Puget Sound Access, or its successor, upon request from the City and
demonstration that City has the required permission to receive the programming. This
programming will replace programming on the City's Public Access Channel.
Section 10. Right -of -Way and Construction Standards
10.1 Permitting.
(a) Emergencies.
(1) Emergency Blanket Permitting — The following work shall be
allowed to take place under this permit in the following situations:
ORD # 06 -524 Page 39
• •
(i) FCC - defined service interruptions that require the start of
corrective action in less than twenty -four (24) hours when they are discovered through a field
review or by notification by other Persons. (Such interruptions are when there is loss of picture
or sound on one or more cable channels.); or
(ii) Public safety related distribution line or equipment repairs
requiring immediate response to correct when they are discovered through a field review or by
notification by other Persons.
(2) Notification of Emergencies — Comcast shall call the City's Public
Works inspection line upon discovery to leave a message describing the applicable work area
that is related to the emergency. The message shall include: specific address, if known, street
crossing reference, and the type of traffic control that is anticipated.
(3) Traffic Control — State Department of Transportation and Manual
of Uniform Traffic Control Devices shall be used to determine specific control plans.
(b) Maintenance Blanket Permit. The following non - emergency related
activities shall be allowed to occur under this permit:
(1) Aerial and underground system monitoring and testing, and
(2) Power supply monitoring and testing.
(c) Individual Construction Projects — Permitting. Individual Right -of -Way
permits shall be required for the following activities:
(1) Activities related to new construction;
(2) Special projects related to Cable System rebuild or upgrade;
(3) Cable System relocation projects;
(4) Pole transfers;
ORD # 06 -524 Page 40
•
•
(5) Scheduled repair and splicing of existing plant; or
(6) Activities not specifically identified in (a) or (b).
10.2 Construction.
(a) Subject to applicable laws, regulations and ordinances of City and
provisions of this Franchise, Grantee may perform all construction necessary for the operation of
its Cable System. All construction and maintenance of Grantee's facilities within Rights -of -Way
remain Grantee's responsibility regardless of who performs the construction.
(b) The Grantee shall be responsible for obtaining, at its own cost and
expense, all permits, licenses, or other forms of approval or authorization necessary to construct,
operate, maintain, or repair the Cable System, or any part thereof, prior to the commencement of
any such activity. Grantee's application will include information required by City's Public
Works Director or their designee including, but not limited to, construction schedules, traffic
control, location information, and protection of public and pedestrian or vehicular traffic, etc.
Prior to any construction, Grantee must provide City with a construction schedule for work in the
Rights -of -Way.
(c) Upon discovery, Grantee may initiate emergency repairs and, if any
excavation in the Rights -of -Way is involved, the Grantee must apply for appropriate permits on
the next business day.
(d) When obtaining a permit, Grantee will inquire about other construction in
progress, planned or proposed to investigate all opportunities for joint trenching or boring.
Whenever it is possible and reasonably practicable to joint trench or share bores or cuts, Grantee
must endeavor to work with other providers, licensees, permittees, and franchisees to reduce
Rights -of -Way cuts within the Franchise Area.
ORD # 06 -524 Page 41
•
(e) City has the right to inspect all construction or installation work performed
within the Franchise Area as it deems necessary to ensure compliance with the terms of this
Franchise and other provisions of law.
(f) At the request of any Person holding a valid pen-nit, with no less than ten
(10) days' notice, Grantee must temporarily raise, lower, or remove its wires as necessary to
permit the moving of a building, vehicle, equipment, or other item. The expense of such
temporary changes must be paid by the permit holder. Grantee may require an estimated
payment in advance.
10.3 Standards of Performance.
(a) All work by Grantee must be done in a safe, thorough and workmanlike
manner. The Grantee must comply with all federal, State, and local safety requirements and
practices, and employ all necessary devices as required by applicable law during construction,
operation, and repair of its Cable System. The Grantee must comply with the National Electric
Code (NEC), National Electrical Safety Code (NESC), and Occupational Safety and Health
Administration (OSHA) Standards.
(b) In the maintenance and operation of its Cable System in Rights -of -Way,
alleys, and other public places and during new construction or additions to its facilities, the
Grantee must cause the least possible inconvenience to the general public. Any opening or
obstruction in the Rights -of -Way or other public places by the Grantee must be guarded and
protected at all times by the placement of adequate barriers, fences or boarding. The boundaries
must be clearly designated by warning lights during periods of dusk and darkness.
(c) All installations of equipment must be permanent, durable, and installed in
accordance with good engineering practices. They must be of sufficient height to comply with
ORD # 06 -524 Page 42
• •
all existing local and State laws and regulations, and not interfere with the rights of the public or
individual property owners. They must not interfere with the travel and use of public places by
the public during the construction, repair, operation, or removal, and must not obstruct or impede
traffic.
(d) Grantee will ensure that all cable drops are properly bonded to the
electrical power ground at the home, consistent with applicable code requirements. All non-
conforming or non - performing cable drops will be replaced by Grantee as necessary.
(e) If the City relocates a Right -of -Way, raises or lowers a bridge, or makes
any other changes requiring the removal of utility installations, the Grantee must remove or
relocate its installations at no cost to the City.
(f) The Grantee shall not excavate for a distance of more than one hundred
feet (100') without immediately backfilling and compacting to surface grade and city standards
unless otherwise approved by the City's Public Works Director or their designee. Backfilled
trench areas within a driving lane must be either temporarily patched or plated, or permanently
patched, before the end of the workday in which they have been opened. Trench areas within the
right -of -way, but not within a driving lane, must also be patched within the time limits specified
by the City's Public Works Director or their designee on the right -of -way use permit. Final
surface restoration shall be completed within thirty (30) days or as authorized by the City's
Public Works Director or their designee, and shall be equal to or better than the surface condition
prior to permit issuance.
(g) Any asphalt overlay completed within the Franchise Area during the five
(5) year period immediately prior to the date of permit application shall not be open cut by
Grantee unless required by an emergency. As reasonably determined by the Public Works
ORD # 06 -524 Page 43
•
•
Director, Grantee shall install new asphalt overlay on any street that is open cut, whether in an
emergency or otherwise, for a minimum of one (1) block (approximately 500 feet) in length in
both directions from the open cut or pay a mitigation fee.
(h) Within ninety (90) days of completion of any new or relocated installation
of Grantee's facilities within the Franchise Area, Grantee shall submit amended plans to the
Director, stamped by an engineer, showing the final "as built" locations of the facilities in cases
where the actual location of facilities is different than the original permitted location as jointly
determined by City and Grantee.
10.4 Maintenance and Workmanship.
(a) Grantee's Cable System must be constructed and maintained so as not to
interfere with sewers, water pipes, or any other property of City, or with any other pipes, wires,
conduits, pedestals, structures, or other facilities in Rights -of -Way under the City's authority.
(b) Grantee will provide and use any equipment and appliances necessary to
control and carry Grantee's signals so as to prevent injury to City's property or property
belonging to any Person. Grantee, at its own expense, will repair, renew, change, and improve
its facilities to keep them in good repair and safe and presentable condition. If Grantee's
facilities are determined by City to be in a state of disrepair, upon receipt of reasonable advanced
notice, Grantee will correct the state of disrepair of those facilities within thirty (30) days at its
own expense. In the event Grantee fails to repair the facilities within thirty (30) days, City may
repair the facilities or cause them to be repaired at the expense of Grantee.
(c) The Grantee's transmission and distribution system, wires, and
appurtenances must be located, erected and maintained so as not to endanger or interfere with the
lives of Persons, or to unnecessarily hinder or obstruct the free use of Rights -of -Way, alleys,
ORD # 06 -524 Page 44
•
bridges, or other public property. The Grantee must, at its own cost and expense, undertake all
necessary and appropriate efforts to maintain its work sites in a safe manner in order to prevent
accidents that may cause damage or injuries. All work undertaken on the Cable System shall be
performed in substantial accordance with applicable FCC or other federal or state regulations.
The Cable System shall not unreasonably endanger or interfere with the safety of Persons or
property in the Rights -of -Way. All equipment enclosures shall be permanently marked to
identify them as property of the Grantee.
10.5 Repair and Restoration of Rights -of -Way and City -Owned Property.
(a) The Grantee must avoid damage to public and private property within the
Rights -of -Way.
(b) If public property is disturbed or damaged, the Grantee must restore the
property to a condition as good as or better than its condition prior to the permit issuance.
Rights -of -Way or other public property must be restored in a manner and within a timeframe
approved by the City's Public Works Director or their designee. If restoration of Rights -of -Way
or other public property is not satisfactorily performed within a reasonable time, the Public
Works Director or their designee may cause the repairs to be made at the Grantee's expense and
recover the cost from the Grantee. Within forty -five (45) days of receipt of those costs,
including the costs of labor, materials and equipment, the Grantee must pay the City. If legal
action is brought by City for Grantee's failure to pay for repair or restoration, the reasonable
costs and expenses including attorneys fees will be paid as determined by the court.
(c) If Grantee excavates the surface of any Rights -of -Way or City -owned
property, Grantee is responsible for promptly refilling the opening and restoring to a condition as
good as or better than its condition prior to the permit issuance. Such restoration must be in
ORD # 06 -524 Page 45
•
accordance with state and local laws and Public Works Development Standards. City may, after
notice to Grantee, refill or repave any opening made by Grantee and the expense must be paid by
Grantee. City may after notice to Grantee remove and repair any work done by Grantee which,
in the determination of City, does not conform to applicable regulations. All costs including the
costs of inspection and supervision must be paid by Grantee.
10.6 Location of Facilities. Grantee must, at its expense, comply with the call before
you dig program required under Chapter 19.122 RCW.
10.7 Relocation. City has the right to require Grantee to change the location of any
part of Grantee's Cable System within the Rights -of Way consistent with the exercise of the
City's police powers, and the expense will be paid by Grantee. Should Grantee fail to remove or
relocate any such facilities by the date established by City, City may effect such removal or
relocation, and the expense will be paid by Grantee, including all costs and expenses incurred by
City due to Grantee's delay. If City requires Grantee to relocate its facilities located within the
Streets, City will make a reasonable effort to provide Grantee with an alternate location within
the Rights -of -Way.
Grantee shall not be required to remove abandoned facilities or relocate its existing Cable
System facilities at its expense for the benefit of private developers or other third party projects.
However, in the event the City notifies the Grantee that the primary purpose for requiring such
changes to or relocation of Grantee's Facilities by a third party is to cause or facilitate the
construction of an Improvement Project to be owned by the City under the City's adopted
Capital Investment Plan, including the Transportation Program, Surface Water Facilities Plan, or
other adopted plans, then the Grantee shall change or otherwise relocate its facilities in
accordance with the Franchise at Grantee's sole cost, expense, and risk.
ORD # 06 -524 Page 46
11
11
In the case of relocation projects where the City hires and designates an independent
contractor to accommodate and coordinate the conversion of overhead utilities within a capital
improvement project, if the City charges the Grantee for use of a provided trench, the Grantee
shall participate in the joint trenching portion of the project and pay the City a portion of the
trench costs, including but not limited to trench bedding, backfill, and traffic control,
commensurate with Grantee's proportionate share of trench usage. To ensure reasonable and
balanced bids by potential contractors within the bidding process, the City agrees to maintain
Grantee's pipe and vault line -items as a separate schedule.
10.8 Undergrounding of Cable.
(a) Where electric and telephone utility wiring is installed underground at the
time of Cable System construction, or when such wiring is subsequently placed underground, all
Cable System lines, wiring, and equipment must also be placed underground at no expense to the
City. Related Cable System equipment, such as pedestals, must be placed in accordance with
regulations as interpreted by the City's Director of Public Works or their designee. In areas
where either electric or telephone utility wiring is aerial, the Grantee may install aerial cable
except when a property owner or resident requests underground installation and agrees to pay the
additional cost in excess of aerial installation.
(b) The Grantee must utilize existing poles and conduit wherever possible.
(c) This Franchise does not grant, give or convey to the Grantee the right or
privilege to install its facilities in any manner on specific utility poles or equipment of the City or
any other Person.
(d) If the Grantee is constructing underground conduit for its own use, the
City may require the Grantee to construct excess conduit capacity in the public Right -of -Way,
ORD # 06 -524 Page 47
• 0
provided that the City enters into a contract with the Grantee consistent with RCW 80.36.150.
The contract rates to be charged should recover the incremental costs of the Grantee, (calculated
as the difference between what the Grantee would have paid for the construction of its conduit
and the additional cost only of construction of the excess conduit). The City shall not require
that the additional conduit space be connected to the access structure and vaults of the Grantee.
The City will be responsible for maintaining its respective cable, conduit, and Fiber Optic cable
buried in the Grantee's trenches and bores.
(e) The City will not be required to obtain easements from or for the Grantee.
(f) The Grantee shall cooperate with others to minimize adverse impacts on
the Rights -of -Way in joint trench projects to relocate its overhead facilities underground and
remove its overhead facilities in areas where all utilities are being converted to underground
facilities.
10.9 Trimming of Trees and Shrubber. Upon obtaining a written permit from City, if
the City's Public Works Director or their designee determines that such a permit is required,
Grantee shall have the authority to trim trees or other natural growth interfering with, damaging,
or restricting access to, and any of its Cable System in the Rights -of -Way. All such trimming
shall be done at the Grantee's sole cost and expense. The Grantee shall be responsible for any
damage caused by such trimming.
10.10 Use of Poles. Whenever feasible, Grantee will use existing poles when the
installation of facilities above -ground is permitted. If Grantee cannot obtain the necessary poles
and related facilities by a pole attachment agreement, and only then, Grantee may make needed
excavations in the Streets. This applies to the placing, erecting, laying, maintaining, repairing
and removing of poles, conduits, supports for wires and conductors, and any other facility
ORD # 06 -524 Page 48
F- --I
LJ
n
LJ
needed for the maintenance or extension of Grantee's Cable System. All poles of Grantee must
be erected between the curb and the sidewalk unless otherwise designated by the City, and each
pole will be set whenever practicable at an extension lot line. City may require Grantee to
change the location of any pole, conduit, structure or other facility within Rights -of -Way when
the City believes the public convenience requires such change. The expense of this change will
be paid by Grantee.
10.11 Stop Work. On notice from City that any work is being conducted contrary to this
Franchise, or in an unsafe or dangerous manner as determined by City, or in apparent violation of
any permit, law, regulation, ordinance, or standard, the work may immediately be stopped by
City. The stop work order will:
(a) Be in writing;
(b) Be given to the individual doing the work, or posted on the work site;
(c) Be sent to Grantee by mail at the address given;
(d) State the nature of the alleged violation or unsafe condition; and
(e) Establish conditions under which work may be resumed.
10.12 Work of Contractors and Subcontractors. Grantee's contractors and
subcontractors must be licensed and bonded in accordance with applicable ordinances,
regulations, and requirements. Work by contractors and subcontractors are subject to the same
restrictions, limitations, and conditions as if the work were performed by Grantee. Grantee is
responsible for all work performed by its contractors and subcontractors and others performing
work on its behalf as if the work were performed by it. Grantee must ensure that all such work is
performed in compliance with this Franchise and other applicable law. Grantee is responsible to
ensure that contractors, subcontractors, or other Persons performing work on Grantee's behalf
ORD # 06 -524 Page 49
E
1]
are familiar with the requirements of this Franchise and other laws governing the work
performed by them.
10.13 Acquisition of Facilities. Upon Grantee's acquisition of facilities in any public
Rights -of -Way, Grantee will, upon request by City, submit a statement describing all facilities
involved, whether authorized by Franchise, permit, license, or other prior right, and specifying
the location of all such facilities, in accordance with Section 7.4(a) herein. Such facilities will
immediately be subject to this Franchise
10.14 Reservation of City Rights -of -Way Use Rights. This Franchise does not prevent
or limit the City or any public utility from constructing any public work or improvement. City is
not liable for any damage to any portion of Grantee's Cable System.
10.15 Discontinuing Use of Facilities. Whenever Grantee intends to discontinue using
any facility within the Rights -of -Way, Grantee must submit for City's approval a complete
description of the facility and the date on which Grantee intends to discontinue its use. Grantee
may remove the facility or request that City allow it to remain in place. City may require
Grantee to remove the facility from the Rights -of -Way, or modify the facility to protect the
public health, welfare, safety, or convenience. City may require Grantee to perform a
combination of modification and removal of the facility. Grantee must complete removal or
modification in accordance with a schedule set by City. Grantee remains responsible for all
necessary repairs and relocations, maintenance of the Rights -of -Way and retains all liability until
it removes the facility as directed by City, or the facility is accepted by another Person having
authority to construct and maintain it. Grantee remains responsible in the same manner and
degree as if the facility were in active use. If Grantee abandons its facilities, City may use such
facilities for any purpose including Access Channel purposes.
ORD # 06 -524 Page 50
•
L�
10.16 Street Vacation. If any Street or portion thereof used by Grantee is vacated by
City during the term of this Franchise, unless City specifically reserves to Grantee the right to
continue its installation in the vacated Street, Grantee will, without delay or expense to City,
remove its facilities from such Street, and restore, repair, or reconstruct the Street where such
removal has occurred, and place the Street in such condition as may be required by City. In the
event of failure, neglect, or refusal of Grantee, after thirty (30) days' notice by City, to restore,
repair, or reconstruct such Street, City may do such work or cause it to be done, and the
reasonable cost thereof, as found and declared by City, will be paid by Grantee within thirty (30)
days of receipt of an invoice and documentation, and failure to make such payment will be
considered a material violation of this Franchise.
Section 11. Cable System Desien and Capacity
11.1 Equal and Uniform Service. The Grantee must provide access to equal and
uniform Cable Service throughout the Franchise Area. Grantee may provide additional Cable
Services to Subscribers on a node by node basis during an upgrade of its Cable System.
11.2 Cable System Upgrade. Prior to the effective date of this Franchise, Grantee has
upgraded its Cable System to a fiber -to- the -node system architecture. Fiber -optic cable was
deployed from the Headend to the node and tying into a hybrid fiber- coaxial Cable System.
Active and passive devices are capable of passing a minimum of 750 MHz. The Cable System is
capable of delivering high quality signals that meet or exceed FCC technical quality standards
regardless of how the signal is transmitted. Grantee agrees to at least maintain these
specifications throughout the term of this Franchise.
11.3 Technical Performance. The technical performance of the Cable System must
comply with FCC rules, Part 76, Subpart K, Section 76.601 through 76.610, as set forth in and as
ORD # 06 -524 Page 51
�J
•
may hereafter be amended by the FCC. City has the full authority permitted by applicable law to
enforce compliance with these technical standards.
11.4. Inspection of Facilities. Upon reasonable prior written notice, and in the presence
of the Grantee's employee, the City may review the Cable System's technical performance as
necessary to monitor the Grantee's compliance with the provisions of this Franchise. All
equipment testing under a technical performance review shall be conducted by the Grantee.
11.5 Cable System Performance Testing.
System:
(a) Grantee must at is own expense perform the following tests on its Cable
(1) All tests required by the FCC; and
(2) All other tests reasonably necessary to determine compliance with
technical standards adopted by the FCC at any time during the term of this Franchise.
(b) Grantee must maintain written records of all results of its Cable System
tests performed by or for Grantee, for a period of five (5) years. Copies of test results must be
provided to City upon request.
(c) The FCC semi - annual testing is conducted in January /February and
I
July /August of each year. If City provides written notice to Grantee prior to December 15 or
June 15 of each year, Grantee must allow and accommodate the City to have a representative
present during the next testing. Grantee will cooperate in scheduling its testing so that the
representative can be present.
(d) Grantee must promptly take such corrective measures as are necessary to
fully correct any performance deficiencies and prevent their recurrence as far as possible.
ORD # 06 -524 Page 52
i
Grantee's failure to correct deficiencies identified by testing is a material violation of this
Franchise. Sites must be re- tested following correction.
Section 12. Institutional Network
12.1 I -Net History. As of the effective date of this Franchise, the Grantee has
constructed, terminated, and completed all I -Net commitments to the City under the
"Institutional Network Agreement ( "I -Net Agreement ") between TCI Cablevision of
Washington, Inc., Cable TV Puget Sound, Inc. and the City of Federal Way," predecessors in
interest to Grantee, dated May 2, 2000. The following are the active sites and spare splice points
utilized by the City and other authorized users:
— FCO1 Federal Way Police /City Hall — 33325 8th Ave S (Active)
— FCO2 Old City Hall — 33530 First Way South (Active)
— FC03 Steel Lake Park & Rec./ Maint.Facility — 31132 28th Ave S (Active)
— FC04 Steel Lake Annex — 2645 S 312th St (Active)
— FC06 Traffic Camera — 1100 S 320th St (Active)
— FC07 Federal Way District Court — 33506 10th PI S (Splice)
— FC08 South King County Multi- service Center — 1200 S 336th (Splice)
— FC09 West Way Community Center — 33400 21 st SW (Active)
— FC 10 Fire Station #2 — 31617 First Ave S (Active)
— FCl 1 Fire Station #3 — 33414 21st Ave SW (Active)
— FC12 Fire Station #8 — 1405 SW 312th (Active)
— FC13 Dumas Bay Center— 3200 SW Dash Point Rd (Active)
— FC14 Klahanee Senior Center — 33901 9th Ave S (Active)
— FC15 Fire Station #65 — 4966 S. 298th ST (Active)
— FC16 Spare 4 Count — Splice CS -12 (Splice)
— FC17 Spare 4 Count — Splice CS -27 (Splice)
— FC18 Spare 4 Count — Splice CS -24 (Splice)
— FC19 Spare 4 Count — Splice CS -16 (Splice)
— FC20 Fire Station #4 — 3700 S 320th St (Active)
— FC21 Celebration Park — 1406 S 330th St (Active)
— FC22 Internet Academy — 32020 1 st Way S (Splice)
— FC23 Station #66 — 27010 15th Ave S (Des Moines) (Active)
— FC24 Station #26 — 2238 S 223rd ST (Des Moines) (Active)
— FC25 Station #62 — 31617 1 st Ave S (Active)
— FC26 Station #61 — 3203 S. 360th ST (Active)
ORD # 06 -524 Page 53
0
•
12.2 I -Net Use. The City shall have an indefatigable, exclusive right of use of the I-
Net for non - commercial network communications, which right cannot be revoked by the
Grantee, or successor companies, if any. However, the Grantee shall at all times own in fee the
outside aerial and underground fiber optic cable and associated facilities and equipment up to
said fiber termination points where physically connected to City -owned optronics.
12.3 I -Net Terms and Conditions. Both parties shall follow the terms and conditions
listed in Exhibit B for the on -going I -Net operation, maintenance, relocation, and future
construction activities.
Section 13. Service Availability.
13.1 Service Request. Generally, Grantee must provide service within seven (7) days
of a request by any Person for a standard installation within the Franchise Area. A request is
made on the date of signing a service agreement, receipt of funds by Grantee, receipt of a written
request by Grantee or receipt by Grantee of a verified verbal request. Grantee must provide such
service:
(a) At a non - discriminatory installation charge for a standard installation,
consisting of a 125 foot drop connecting to an inside wall. Additional charges may be made for
non - standard installations computed according to a non - discriminatory method adopted by
Grantee and provided in writing to City.
(b) At non - discriminatory monthly rates for all Subscribers except
commercial customers, MDU bulk customers and other allowed exceptions to uniform pricing.
13.2 Service Extensions.
(a) Service to new Subdivisions. The Grantee will deploy its cable system
within new subdivisions and provide Cable Services at the same time as other utilities or within
ORD # 06 -524 Page 54
U
thirty (30) days of a request from a new resident. Grantee must provide such service at a
nondiscriminatory installation charge for a standard installation, consisting of a drop no longer
than one hundred twenty -five (125) feet, with additional charges for non - standard installations
computed according to a nondiscriminatory time and material cost basis for that portion beyond
one hundred twenty -five (125) feet.
(b) Required Extensions of Service. Whenever the Grantee receives requests
for service from at least eight (8) residences with a density of thirty -two (32) dwellings per mile
and within 1,320 cable- bearing strand feet (one - quarter cable mile) of its trunk or distribution
cable, it must extend its Cable System to such Customers. There will be no cost to them for
other than the non - standard installation and usual connection fees for all Customers. Such
extensions must be technically feasible, and not adversely affect the operation of the Cable
System. The Grantee may elect to provide Cable Service to areas not meeting the above
density standard and charge the requesting resident(s) for the line extension on a time and
material cost basis.
(c) Enforcement. Failure to meet these standards subjects Grantee to
enforcement actions on a per Subscriber basis under Section 15
Section 14. Standby Power and Emergency Alert System
14.1 Standby Power. Grantee must provide standby power generating capacity at the
Cable System Headend capable of providing at least twelve (12) hours of emergency operation.
Grantee must maintain standby power system supplies rated for at least two (2) hours duration
throughout the trunk and distribution networks.
ORD # 06 -524 Page 55
• •
14.2 Emergency Alert Service (EAS) Capability.
(a) Grantee must activate and maintain EAS in accordance with FCC
Regulations. Grantee must ensure that the EAS system properly functions at all times. It will
test the EAS system periodically in accordance with FCC regulations.
(b) Grantee will cooperate with the City and local emergency officials to
develop practices and procedures for the use of the emergency broadcast capability within the
Franchise Service Area.
Section 15. Enforcement; Termination of Franchise.
15.1 Informal Dispute Resolution. Before proceeding with the formal procedure for
remedying Franchise violations as set forth below, City agrees to provide Grantee informal oral
or electronic mail notice of any alleged material Franchise violation. Grantee will have a
reasonable opportunity to cure the violation. If the alleged violation is investigated by Grantee
and found valid, Grantee will exert good faith efforts to immediately resolve the matter.
However, if Grantee believes the alleged violation is invalid or outside of Grantee's legal
responsibilities, the Grantee must promptly advise the City. Grantee will exercise good faith
efforts to expedite its investigation, determination and communications to City to facilitate the
informal resolution process. If City believes that Grantee is unreasonably delaying the informal
resolution process, City may commence the formal dispute resolution process.
15.2 Procedure for Remedying Franchise Violations.
(a) Except for revocation matters addressed in Section 15.5, if City believes
that Grantee has failed to perform any material obligation under this Franchise, or has failed to
perform in a timely manner, City will notify Grantee in writing stating with reasonable
ORD # 06 -524 Page 56
0
specificity the nature of the alleged violation. Grantee will have thirty (30) days from the receipt
of such notice to:
(1) Respond to City contesting City's assertion that a default has
occurred, and requesting a hearing in accordance with subsection (b);
(2) Cure the violation; or
(3) Notify City that Grantee cannot cure the violation within 30 days
because of the nature of the violation. If the violation cannot be cured within 30 days, Grantee
must promptly take all reasonable steps to cure the violation and notify City in writing and in
detail as to the exact steps that will be taken and the projected completion date. City may set a
hearing in accordance with subsection (b) to determine whether additional time is needed, and
whether Grantee's proposed completion schedule and steps are reasonable. Upon five (5)
business days' prior written notice, either City or Grantee may call an informal meeting to
discuss the alleged violation.
(b) If Grantee does not cure the alleged violation within thirty (30) days or by
the projected completion date, denies the default and requests a hearing, or City orders a hearing,
City must set a public hearing in front of City's designated hearing authority to investigate the
alleged violation. City must notify Grantee of the hearing in writing and such hearing will take
place no less than seven (7) days after Grantee's receipt of notice of the hearing. At the hearing
Grantee will be provided an opportunity to present and question witnesses, and to present
evidence in its defense. At any such hearing, City will not unreasonably limit Grantee's
opportunity to make a record that may be reviewed by a court. The public hearing will be on the
record and an audio recording will be available to the Grantee within ten (10) business days
following Grantee's request.
ORD # 06 -524 Page 57
•
0
(c) If City determines after the public hearing that a violation exists, City will
order Grantee to correct or remedy the violation or breach within fourteen (14) days or within
such other time determined by City. If Grantee does not cure the violation to the City's
satisfaction within the time set, City may:
Franchise;
Section 15.5; or
(1) Assess and collect liquidated damages in accordance with this
(2) Begin procedures to terminate this Franchise as specified in
(3) Pursue any other legal or equitable remedy available under this
Franchise or applicable law.
(d) The determination as to whether a violation of this Franchise has occurred
is within the sole discretion of the City or its designee. Any such determination by City must be
in writing and must be based upon a record that includes Grantee's submissions. Any such final
determination is subject to court review.
15.3 Alternative Remedies.
(a) No provision of this Franchise affects the right of the either party to seek
judicial relief from a violation of any provision of this Franchise, or any regulation or directive
under this Franchise. The existence of other remedies under this Franchise does not limit the
right of either party to recover monetary damages, or to seek judicial enforcement of obligations
by specific performance, injunctive relief or mandate, or any other remedy at law or in equity.
(b) The City does not waive any right, immunity, limitation or protection
(including complete damage immunity) otherwise available to the City, its officers, officials,
council, boards, commissions, agents, or employees under federal, State, or local law, including
ORD # 06 -524 Page 58
0 0
Section 635A. [47 U.S.C. 555a] of the Cable Act. The Grantee has no monetary recourse against
the City, or its officers, officials, council, boards, commissions, agents, or employees for any
loss, costs, expenses or damages arising out of any provision, requirement of this Franchise or its
enforcement, except that no such requirement shall apply where such claims, suites, causes of
action, proceedings, and judgments for damage are occasioned by the sole negligence or willful
misconduct of the City or its officials, boards, commissions, agents, or employees while acting
on behalf of the City.
15.4 Assessment of Liquidated Damages.
(a) The City and the Grantee recognize the delays, expense and unique
difficulties involved in proving in a legal proceeding the actual loss suffered by the City as a
result of the Grantee's violation of this Franchise. Because it may be difficult to calculate the
harm to the City in the event of a breach of this Franchise by Grantee, the parties agree to
liquidated damages as a reasonable estimation of the actual damages. To the extent that the City
elects to assess liquidated damages as provided in this Franchise and such liquidated damages
have been paid, such damages shall be the City's sole and exclusive remedy. Nothing in this
Section is intended to preclude the City from exercising any other right or remedy with respect to
a breach that continues past the time the City stops assessing liquidated damages for such breach.
(b) Prior to assessing any liquidated damages, the City shall follow the
enforcement procedures of Section 15.2 of this Franchise that provide the Grantee proper notice,
right to cure, and due process to defend and refute the allegations of non - compliance.
(c) The City shall not assess any liquidated damage if the Grantee has
reasonably responded to the complaint or cured or commenced to cure, under the enforcement
provisions of this Franchise. In the event Grantee fails to cure or commence to cure, or fails to.
ORD # 06 -524 Page 59
•
•
refute the alleged breach, the City may assess liquidated damages and shall inform Grantee in
writing of the assessment. Grantee shall have forty -five (45) days to pay the damages. Such
amounts are agreed by both parties to be a reasonable estimate of the actual damages the City
would suffer from Grantee's Franchise violation, and are not intended as a penalty.
(d) The first day for which liquidated damages may be assessed, if there has
been no cure after the end of the applicable cure period, shall be the day after the end of the
applicable cure period, including any extension of the cure period granted by the City.
(e) Grantee may appeal (by pursuing judicial relief or other relief afforded by
the City) any assessment of liquidated damages within thirty (30) days of receiving written
notice of the assessment. Grantee's obligation to pay the liquidated damages assessed shall not
be stayed pending resolution of the appeal.
(f) In no event will liquidated damages be assessed for a period exceeding
one hundred twenty (120) days in a twelve (12) month period.
(g) Pursuant to the requirements outlined herein, liquidated damages shall not
exceed the following amounts: one - hundred dollars ($100.00) per day for material departure
from the FCC technical performance standards; fifty dollars ($50.00) per day for failure to
provide the Access channels or any equipment related thereto which is required hereunder; one-
hundred dollars ($100.00) per day for each material violation of the Customer Service Standards;
twenty five dollars ($25.00) per day for failure to provide reports or notices as required by this
Franchise; and one hundred dollars ($100.00) per day for any material breaches or defaults not
enumerated herein.
ORD # 06 -524 Page 60
•
15.5 Revocation.
•
(a) The City may revoke this Franchise and all associated rights and
privileges if a Franchise violation is not cured under Section 15.2, or if:
Franchise;
(1) Grantee fails to perform any material obligation under this
(2) Grantee attempts to evade any material provision of this Franchise
or practices any fraud or deceit upon the City or Subscribers;
(3) Grantee abandons the Cable System, or terminates the Cable
System's operations; or
(4) Grantee becomes insolvent, unable or unwilling to pay its debts, or
files for bankruptcy, there is an assignment for the benefit of Grantee's creditors, or all or part of
the Grantee's Cable System is sold to secure a debt and is not redeemed by Grantee within thirty
(30) days of the sale.
(b) Prior to revocation of the Franchise, the City shall give written notice to
the Grantee of its intent to revoke the Franchise, setting forth the exact nature of the
noncompliance. The Grantee shall have thirty (30) days' from such notice to object in writing
and to state its reasons for such objection and provide any explanation. In the event the City has
not received a timely and satisfactory response from the Grantee, it may then seek a revocation
of the Franchise by the City Council as follows:
(1) Any proceeding regarding revocation shall be conducted by the
City Council and open to the public. The Grantee shall be afforded at least forty -five (45) days'
prior written notice of such proceeding.
ORD # 06 -524 Page 61
•
•
(2) At such proceeding, the Grantee shall be provided a fair
opportunity for full participation, including the right to be represented by legal counsel, to
introduce evidence. A complete verbatim record or video tape shall be made of such proceeding
and the cost shall be shared equally between the parties. The City shall maintain a record of such
proceeding consistent with its record retention policies. Nothing herein prohibits Grantee from
paying to create a written transcript of the proceeding. The City Council shall hear any Persons
interested in the revocation, and shall allow the Grantee, in particular, an opportunity to state its
position on the matter.
(3) Within ninety (90) days after the hearing, the City Council shall
determine whether to revoke the Franchise; or if the breach at issue is capable of being cured by
the Grantee, direct the Grantee to take appropriate remedial action within the time and in the
manner and on the terms and conditions that the City Council determines are reasonable under
the circumstances. If the City Council determines that the Franchise is to be revoked, the City
Council shall issue a written decision and shall transmit a copy of the decision to the Grantee.
The Grantee shall be bound by the City Council's decision to revoke the Franchise unless it
appeals the decision to a court of competent jurisdiction within thirty (30) days of the date of the
decision.
appropriate.
(c) The Grantee shall be entitled to such relief as the court may deem
(d) The City Council may in its sole discretion take any lawful action that it
deems appropriate to enforce the City's rights under the Franchise in lieu of revocation.
ORD # 06 -524 Page 62
•
15.6 Removal.
•
(a) When there is a termination or expiration of this Franchise, and after all
court reviews are concluded, City may order the removal of the Cable System facilities from the
Franchise Area at Grantee's sole expense within a reasonable period of time as determined by
City. In removing its plant, structures, and equipment, Grantee must refill at its own expense any
excavation it made and leave all Rights -of -Way, public places, and private property in as good a
condition as prevailed prior to installation of Grantee's equipment.
(b) If Grantee fails to complete any required removal to the City's
satisfaction, City may cause work to be done. Grantee must reimburse City for the reasonable
costs incurred within thirty (30) days receipt of an itemized list of City's expenses and costs.
City may recover its expenses and costs from the security, or pursue any judicial remedies. Any
expenses incurred in the collection by City will be included in the monies due City from Grantee,
including reasonable attorney fees, court expenses and attributed expenses for work conducted
by City's staff or agents.
15.7 Non - Enforcement by City. Grantee is not relieved of its obligation to comply
with any of the provisions of this Franchise by reason of any failure of City to enforce prompt
compliance. City's forbearance or failure to enforce any provision of this Franchise will not
serve as a basis to stop any subsequent enforcement. The failure of the City on one or more
occasions to exercise a right or to require compliance or performance under this Franchise does
not constitute a waiver of such right or a waiver of compliance or performance, unless such right
has been specifically waived in writing. Any waiver of a violation is not a waiver of any other
violation, whether similar or different from that waived.
ORD # 06 -524 Page 63
•
•
15.8 Bankruptcy Procedures. Grantor may revoke this Franchise one hundred twenty
(120) days after the appointment of a receiver or trustee to take over and conduct the business of
the Grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding,
unless:
(a) The receivership or trusteeship is vacated within one hundred twenty (120)
days of appointment; or
(b) The receivers or trustees have, within one hundred twenty (120) days after
their election or appointment, fully complied with all the material terms and provisions of this
Franchise and have remedied all Franchise violations. The receivers or trustees must execute an
agreement approved by the appointing court providing that the receiver or trustee assumes and is
bound by the provisions of this Franchise.
Section 16. Abandonment
16.1 Effect of Abandonment. If the Grantee abandons its Cable System or Institutional
Network during the Franchise term, or fails to operate its Cable System or Institutional Network
in accordance with its duty to provide continuous service, the City may operate the Cable System
or designate another entity to operate the System. This operation may continue until the Grantee
restores service under conditions acceptable to the City, or until the Franchise is revoked and a
new Grantee is selected by the City. If the City operates or designates another entity to operate
the Cable System, the Grantee must reimburse the City for all reasonable costs, expenses and
damages incurred including reasonable attorney fees, court expenses and attributed expenses for
work conducted by City's staff or agents.
16.2 What Constitutes Abandonment. The City is entitled to exercise its option and
obtain any required injunctive relief if:
ORD # 06 -524 Page 64
0
•
(a) The Grantee fails to provide Cable Service in accordance with this
Franchise to the Franchise Area for ninety -six (96) consecutive hours, unless the City authorizes
a longer interruption of service, except if such failure to provide service is due to a force majeure
occurrence, as described in Section 19.17; or
(b) The Grantee for any period willfully and without cause refuses to provide
Cable Service in accordance with this Franchise.
Section 17. Transfer of Ownership or Control
(a) Neither the Cable System nor this Franchise may be sold, assigned,
transferred, leased or disposed of, either in whole or in part, either by involuntary sale or by
voluntary sale, merger or consolidation without the prior written consent of the City, except as
otherwise specifically provided in (h) below. Neither the title, legal or equitable, nor any right,
interest nor property may pass to or vest in any Person without the prior written consent of the
City. Such consent may only be granted by City Council resolution.
(b) The Grantee must promptly notify the City of any actual or proposed
change in, or transfer of, or acquisition by any other Person of control of the Grantee. The word
"control" is not limited to majority stockholders but includes actual working control in whatever
manner exercised. Every change, transfer or acquisition of control of the Grantee makes this
Franchise subject to cancellation unless and until the City Council consents by resolution.
(c) The parties to any sale or transfer must make a written request to the City
for its approval of a sale or transfer and furnish all information required by the City.
(d) In seeking the City's consent to any change in ownership or control, the
proposed transferee will state whether it:
ORD # 06 -524 Page 65
11
•
(1) Has ever been convicted or held liable for acts involving deceit
including any violation of federal, State, or local law or regulations, or is currently under an
indictment, investigation or complaint charging such acts;
(2) Has ever had a judgment in an action for fraud, deceit, or
misrepresentation entered against the proposed transferee by any court;
(3) Has pending any legal claim, lawsuit, or administrative proceeding
arising out of or involving a Cable System;
(4) Is financially solvent by submitting financial data including
financial statements that are audited by an independent certified public accountant, along with
any other data that the City may reasonably require; and
(5) Has the financial, legal, and technical capability to enable it to
maintain and operate the Cable System for the remaining term of the Franchise and to cure any
existing performance deficiencies.
(e) The City will act by resolution on the request within one hundred twenty
(120) days of the request if it has received all requested information. If the City fails to make a
final decision on the request within one hundred twenty (120) days, the request will be deemed
granted unless the requesting party and the City agree to an extension of time.
(f) Within thirty (30) days of any transfer, sale or change of control, if
approved or deemed granted by the City, Grantee must file with the City a copy of the deed,
agreement, lease or other written instrument evidencing such sale or transfer of ownership or
change of control. Such documents must be certified and sworn to as correct by Grantee and the
transferee. The transferee must file its written acceptance agreeing to be bound by all of the
provisions of this Franchise. If there is a change in control in which the Grantee is not replaced
ORD # 06 -524 Page 66
by another entity, the Grantee will continue to be bound by all of the provisions of the Franchise,
and will not be required to file an additional written acceptance.
(g) When reviewing a request for sale, transfer, or change of control, the City
may inquire into the legal, technical and financial qualifications of the prospective controlling
party or transferee. Grantee will assist the City with such inquires. The City may condition
consent to a sale or transfer upon such terms and conditions as it deems appropriate. Any terms
and conditions must be related to the legal, technical and financial qualifications of the
prospective controlling party or transferee, and to the resolution of outstanding and unresolved
issues of noncompliance with this Franchise by Grantee.
(h) The prior approval of the City is not required for any sale, assignment or
transfer of the Franchise or Cable System to an entity controlling, controlled by or under the
same common control as Grantee. The proposed assignee or transferee must show financial
responsibility as may be determined necessary by the City, and must agree in writing to comply
with all of the provisions of this Franchise. Grantee may pledge the assets of the Cable System
for the purpose of financing without the consent of the City. Any pledge of assets must not
impair or mitigate Grantee's responsibilities and capabilities to meet all of its obligations under
this Franchise.
Section 18. Franchise Review
18.1 Performance Evaluation.
(a) Upon thirty (30) days' written request of City, but no more than annually,
a franchise review may be held. The City or its designee will conduct all such reviews.
(b) All performance reviews will be open to the public and announced at least
one week in advance in a newspaper of general circulation within the Franchise Area.
ORD # 06 -524 Page 67
0 •
(c) During evaluations under this section, Grantee must fully cooperate with
City and provide information and documents in accordance with Section 7 as required by City to
perform the evaluation.
18.2 Topics to be Addressed at Performance Reviews. The City's review may include,
but is not limited to, the following topics at any performance review:
(a) Cable Service rate structures governed by federal law;
(b) Franchise Fees;
(c) PEG access support by the Grantee;
(d) I -Net construction, functioning, and service;
(e) Liquidated damages;
(f) Free or discounted Cable Services;
(g) Application of new technologies;
(h) Video on Demand for local government programming;
(i) Performance of the Cable System;
(j) Parity of the Cable System with neighboring Cable Systems;
(k) New technologies that, in the City's opinion, would enhance substantially
the quality or quantity of programming available to Subscribers on the System;
(1) Cable Services provided;
(m) Programming;
(n) Line extension policies;
(o) Customer complaints;
(p) Grantee's privacy practices;
(q) Judicial or FCC rulings;
ORD # 06 -524 Page 68
0
(r) Grantee's Facilities and Services in light of reasonable City needs and
interests, including identification of needed changes in Facilities and /or Services; and
(s) Amendments to this Franchise.
Nothing in this subsection requires either the City or the Grantee to agree to any amendment to
this Franchise, and any amendments hereto must be formally accepted in writing by both parties.
Section 19. Miscellaneous Provisions
19.1 Equal Employment Opportunity Requirements. Grantee must comply with all
provisions of FCC rules concerning equal employment opportunity.
19.2 Notices. Throughout the term of this Franchise, each party will maintain and file
with the other an address for the service of notices by mail. All notices will be sent to such
respective address, and are effective upon the date of mailing. At the effective date of this
Franchise:
Grantee's address:
Comcast of Puget Sound, Inc. and Comcast of Washington IV, Inc.
4020 Auburn Way N
Auburn, WA 98002
Attention: Director, Franchising and Government Affairs
With a non- binding courtesy copy to:
Comcast of Puget Sound, Inc. and Comcast of Washington IV, Inc.
P.O. Box 3042
Bothell, WA 98041 -3042
Attention: Franchising and Government Affairs
City's address:
City of Federal Way
City Manager
33325 8th Avenue South
P.O. Box 9718
Federal Way, Washington 98003 -9718
ORD # 06 -524 Page 69
• •
19.3 Costs to be Borne by Grantee. Grantee must pay for all costs of publication of
this Franchise, and all reasonable costs for public notices provided for in this Franchise.
19.4 Bindin,,. Effect. ffect. This Franchise is binding upon the parties, their consented
successors and assigns.
19.5 Authority to Amend. This Franchise may be amended at any time by written
agreement between the parties.
19.6 Venue. The venue for any dispute related to this Franchise will be with the
United States District Court for the Western District of Washington or the King County Superior
Court, Kent, Washington.
19.7 Governing Law. This Franchise is governed in all respects by the laws of the
State of Washington.
19.8 Guarantee. Grantee is not required to maintain a guarantee for the term of the
Franchise. However, the City reserves its right, in the case of a transfer under Section 17, to
require a signed guarantee, in a form approved by the City, filed with the City contemporaneous
with the controlling party or transferee's acceptance of the Franchise transfer.
19.9 Captions. The captions and headings of this Franchise are for convenience and
reference purposes only and do not affect in any way the meaning or interpretation of the
provisions of this Franchise.
19.10 Construction of Franchise. The provisions of this Franchise will be liberally
construed to promote the public interest.
19.11 No Joint Venture. This Franchise does not create a joint venture or principal-
agent relationship between the parties. Neither party is authorized to, nor will either party act
ORD.# 06 -524 Page 70
•
toward third Persons or the public in any manner that would suggest such relationship with the
other.
19.12 Waiver. The failure of either party at any time to require performance by the
other of any provision of this Franchise will in no way affect the right of the other party to
enforce the Franchise. The waiver by either party of any breach of any provision is not a waiver
of any succeeding breach of such provision, or as a waiver of the provision itself or any other
provision.
19.13. Severability. The provisions of this ordinance are declared separate and
severable. The invalidity of any clause, sentence, paragraph, subdivision, section, subsection,
provision or portion of this ordinance or the invalidity of the application thereof to any person or
circumstance, will not affect the validity of the remainder of the ordinance, or the validity of its
application to other persons or circumstances.
19.14 Entire Agreement. This Franchise and all exhibits are the entire understanding
and agreement between the parties with respect to this subject matter and supersede all prior oral
negotiations and written agreements between the parties.
19.15 Compliance with Federal, State, and Local Laws. The Grantee will comply with
all federal, State, and local laws, rules, and regulations.
19.16 Force Majeure. The Grantee will not be held in violation under, or in
noncompliance with, the provisions of this Franchise, nor suffer any enforcement or penalty
relating to noncompliance or violation, where such noncompliance or alleged defaults occurred
or were caused by circumstances reasonably beyond the ability of the Grantee to anticipate and
control. This includes, for example, war, riots, civil disturbances, floods or other natural
catastrophes, labor stoppages, or slow downs not attributable to City's employees, or power
ORD # 06 -524 Page 71
0
outages exceeding back -up power supplies, work delays caused by waiting for utility providers
to service or :monitor their utility poles to which the Grantee's Cable System is attached.
Section 20. Ratification
Any act consistent with the authority and prior to the effective date of this ordinance is
hereby ratified and affirmed.
Section 21. Effective Date
This ordinance shall take effect and be in force five (5) days from the time of its final
passage, and publication, as provided by law.
PASSED by the City Council of the City of Federal Way this l � day of 2006.
CITY OF. FEDERAL WAY
MAYOR, MI A
ATTEST:
'A I kM Ah'n
CI yi-ERK,'L HA AWAY, CIVIC
APPR VED AS TO FORM:
CITY ATTORNEY, PATRICIA A. RICHARDSON
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL.
PUBLISHED: 51 WI alo
EFFECTIVE DATE: G ,5/ yO
ORDINANCE NO. - So-Zq
ORD # 06 -524 , Page 72
0 EXHIBIT A — ACCEPTANCE
KNOW ALL MEN BY THESE PRESENTS:
The City Council of the City of Federal Way, Washington, having duly passed and adopted
Ordinance No. Q(, -5aq , titled
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, GRANTING A NON - EXCLUSIVE FRANCHISE TO COMCAST OF
PUGET SOUND, INC. AND COMCAST OF WASHINGTON IV, INC. TO OCCUPY
RIGHTS -OF -WAY OF THE CITY OF FEDERAL WAY, WASHINGTON, WITHIN THE
SPECIFIED FRANCHISE AREA FOR THE PURPOSES OF OPERATING AND
MAINTAINING A CABLE COMMUNICATIONS SYSTEM, AND SETTING FORTH
CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE
and said Ordinance stating at Section 2.4 that the grant of franchise must be unconditionally
accepted by the Grantee by the submission of a written instrument in substantially the form of
this Exhibit A;
NOW, THEREFORE, Comcast of Puget Sound, Inc. and Comcast of Washington IV, Inc. do
hereby unconditionally accept the terms and conditions of the Ordinance granting the said
franchise, and do promise to comply with and abide by all its provisions, terms and conditions,
subject to federal, State, and local law.
Y ,
ACCEPTED this /'�da of 2006.
COMCAST OF P ET SOUND, INC. COMCAST OF HINGTON V, INC.
BY' B .
Name: Leonard J. Rozek Name: Leonard oze
Title: Senior Vice President
Title: Senior Vice Pres i dent
Date: �O Date:
STATE OF WASHINGTON)
COUNTY OF Snohomish ) ss.
On g� a D O _ this instrument was acknowledged before me by
Aeor?a..rd a corporate officer of Comcast of Puget Sound, Inc. and
Comcast of Washington IV, Inc_ `\ *����►�tiNit {t,{`'
ARY PUBLIC FOR WASHINGTON
My Commission Expires: /��q��oo
OU
v
ORD # 06 -524 Page 73
� , '4TH OF WP5