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ORD 16-820 - Granting Comcast Cable Franchise
ORDINANCE NO. 16 -820 AN ORDINANCE of the City Council of the City of Federal Way, Washington, granting Comcast Cable Communications Management, LLC, a nonexclusive franchise to occupy the rights -of -way of the City of Federal Way, Washington, through the franchise area for the purposes of operating and maintaining a cable communications system within and through the City of Federal Way. (Amending Ordinance Nos. 06 -424 and 09 -620). WHEREAS, Ordinance 06 -524 granted Comcast of Puget Sound, Inc. and Comcast of Washington IV, Inc. a franchise to operate and maintain a cable communications system in the City of Federal way; and WHEREAS, on December 26, 2012, Comcast of Puget Sound, Inc. merged into its corporate affiliate, Comcast of Washington I, Inc.; and WHEREAS, on June 4, 2014, Comcast of Washington I, Inc. merged into its corporate affiliate Comcast Cable Communications Management, LLC ( "Franchisee "); and WHEREAS, the franchise expires on May 25, 2016; and WHEREAS, the City and Franchisee are currently negotiating a new franchise and have agreed to extend the expiration of the current franchise until May 25, 2017 in order to give the parties additional time to negotiate the new franchise; NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. The term of the franchise established in Ordinance 06 -524, which is attached and incorporated by this reference as Exhibit A, is hereby extended until May 25, 2017. Section 2. Acceptance by Franchisee. Franchisee shall have no rights nor shall Franchisee be Ordinance No. 16 -820 Page 1 of 5 bound by the terms and conditions of this ordinance unless, prior to August 15, 2016, Franchisee files with the City its written acceptance of the terms and conditions of this ordinance. Section 3. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener /clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 4. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 5. Effective Date. By unanimous consent, the Council finds that this ordinance is needed for the immediate support of city government and is not subject to initiative or referendum. This ordinance shall take effect and be in force five (5) days from the time of its final passage, as provided by law. PASSED by the City Council of the City of Federal Way this 17th day of May, 2016. ATTEST: •I� LERK, STEPHANIE C APP ED AS TO Fes' M: EY, CMC CITY ATT Y, AMY JO PEARSALL Ordinance No. 16 -820 Page 2 of 5 FILED WITH THE CITY CLERK: 05/02/2016 PASSED BY THE CITY COUNCIL: 05/17/2016 PUBLISHED: 05/20/2016 EFFECTIVE DATE: 05/22/2016 ORDINANCE NO.: 16 -820 Ordinance No. 16 -820 Page 3 of 5 ACCEPTANCE KNOW ALL MEN BY THESE PRESENTS: The City Council of the City of Federal Way, Washington, having duly passed and adopted Ordinance No. 16 -820, titled, AN ORDINANCE of the City Council of the City of Federal Way, Washington, granting Comcast Cable Communications Management, LLC, a nonexclusive franchise to occupy the rights -of -way of the City of Federal Way, Washington, through the franchise area for the purposes of operating and maintaining a cable communications system within and through the City of Federal Way. and said Ordinance stating at Section 2 that the Ordinance must be unconditionally accepted by the Franchisee by the submission of a written instrument in substantially the form of this acceptance; NOW, THEREFORE, Comcast Cable Communications Management, LLC, does hereby unconditionally accept the terms and conditions of the Ordinance granting the said franchise, and promises to comply with and abide by all its provisions, terms and conditions, subject to federal, State, and local law. fL� ACCEPTED this (O day of lan , 2016. COMCAST CA E • ■i ICATIONS MANAGEMENT, LLC: . By: Name: Title: Date: TRIO-1y T Nester - Financi and Accounting STATE OF COUNTY OF &rapeh0 ss. On 1,(At 1,(A I 61 24____.__. 'rpi o1-kY T Nester Management, LLC. Ordinance No. 16 -820 this a instrument was acknowledged before me by corporate officer of Comcast Cable Communications NOTARY PUBLIC wAsiiiiieigenNt Coto/0140 My Commission Expires: LAURA HUFFMAN NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20144010926 COMMISSION EXPIRES MAR. 10. 2018 Page 4 of 5 EXHIBIT A COMCAST FRANCHISE ORDINANCE 06 -524 Ordinance No. 16 -820 Page 5 of 5 FEDERAL 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 1V, 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 TC1 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, bas 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 sct forth; and ORD # 06 -524 Page 1 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 Ile day of , &az, 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 Rights -of -Way 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 i 9.5 Filing of Rates and Charges 18 4.6 Late Fees 19 4.7 Time Limits Strictly Construed. 19 SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS I9 5.1 Indemnification 19 5.2 Insurance Requirements 20 5.3 Performance Bond 22 SECTION 6. 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 77 False Statements 32 7.8 Penalties for Noncompliance 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 ii 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 ofAccess 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 34 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 4S 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. 30 10.14 Reservation of City Rights - of-Way Use Rights 50 10.15 .Discontinuing Use of Facilities 50 10.16 Street Vacation 51 SECTION 1 I . CABLE SYSTEM DESIGN AND CAPACITY 51 ORD 4 06 -524 Page iii 11.1 Equal and Uniform Service 51 11.2 Cable System Upgrade 51 11.3 Technical Performance 51 11.4. Inspection ofFacilities 52 11.5 Cable System Performance Testing. 52 SECTION 12. INSTITUTIONAL NETWORK 53 12.1 I -Net History 53 12.2 1 -Net Use 54 12.3 1 -Net Terms and Conditions 54 SECTION 13. SERVICE AVAILABILITY. 54 13.I 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 S8 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 SECTION 16. ABANDONMENT 64 16.1 Effect of Abandonment 64 16.2 When Constitutes Abandonment 64 SECTION 17. TRANSFER OF OWNERSHIP OR CONTROL 65 SECTION 18. FRANCHISE REVIEW b7 18.1 Performance Evaluation. 67 18.2 Topics to be Addressed at Performance Reviews 68 ORD # 06 -524 Page iv 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 SECTION 20. RATIFICATION 72 SECTION 21. EFFECTIVE DATE 72 EXHIBIT A — 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 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 II 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 1- leadend 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 1V, 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 eamed by an Affiliate only to the extent that Grantee could have earned such types of ORD # 06 -524 Page 6 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 "Flub" 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 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 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 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 -Way. (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 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 If 06 -524 Page 11 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 Iiability 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 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 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 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 (l20) 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 4 06 -524 Page 16 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 1 -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 (I) 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 (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 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 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 l 3.2. ORD # 06 -524 Page 24 (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 Flours. 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 1/ 06 -524 Page 25 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 carved 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 (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 Billing. (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 (2) The return of the equipment supplied by the Grantee if service is terminated. (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 i 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 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. Programming and Channel Capaeity 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 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 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 Sery ice. (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. (2) Unrestricted technology grant of $100,000. (b) On the commencement of the extension term, Grantee will remit to the City: (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 Management 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 (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- jurisdictional 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 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 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 I0. 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 permit, 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) lithe 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 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 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 Shrubbery. 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 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 Iine. 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. 10.1 1 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 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 Iimit 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 perforrn 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 1 0.16 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 Design 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 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. (a) Grantee must at is own expense perform the following tests on its Cable System: (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 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 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: — FC01 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 — 31 132 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 l Oth PI S (Splice) - FC08 South King County Multi- service Center— 1200 S 336th (Splice) - FC09 West Way Community Center — 33400 21st SW (Active) — FC10 Fire Station #2 — 31617 First Ave S (Active) — FCI 1 Fire Station 43 — 33414 21st Ave SW (Active) - FC12 Fire Station #8 — 1405 SW 312th (Active) — FC13 Dumas Bay Center — 3200 SW Dash Point Rd (Active) — FC l 4 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) — FCI 7 Spare 4 Count — Splice CS -27 (Splice) — FCI 8 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 1st 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 1st Ave S (Active) - FC26 Station #61 — 3203 S. 360th ST (Active) ORD # 06 -524 Page 53 12.2 1 -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 1 -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 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 (FAS) 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 specificity the nature of the alleged violation. Grantee will have thirty (30) days from the receipt of such notice to: (I) 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 (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: (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 Franchise; Section 15.5; or ORD # 06 -524 Page 58 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: (1) Grantee fails to perform any material obligation under this Franchise; (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 (1 20) 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 (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 (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 (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) 1 -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 (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 Binding Effect, 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 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 - day of CITY OF. FEDERAL WAY MAYOR, MI ATTEST: �) CI LERK L�RAH AWAY, CMC APPRSaVED AS TO FORM: CITY ATTORNEY, PATRICIA A. RICHARDSON FILED WITH THE CITY CLERK: q(2.'? 04 PASSED BY THE CIT ,5 Y COUNCIL: W0(P PUBLISHED: Sl ag10ly J EFFECTIVE DATE: $ jasl06' ORDINANCE NO. - vary ORD # 06 -524 , Page 72 2006. 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. D, -5a , 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 TIIE 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 ofa 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. ACCEPTED this ' day of , 2006. COMCAST OF PET SOUND, INC. COMCAST OF �; HINGTON V, INC. BY'�Ls Name: Leonard J. Rozek Title: Senior Vice President bate: g/! p Name: Leonard Title: Date: Senior Vice President gli% 6 STATE OF WASHINGTON) COUNTY OF Snohomish ) ss. On g�� ©D this instrument was acknowledged before me by ieorm -rd J. �Po2e-k , a corporate officer of Comcast of Puget Sound, Inc. and Comcast of Washington IV, Inc. ������` »��1lttttt ``• •u,,,'1/ e....4.... ARY PUBLIC FOR WASHINGTON - i t''�� My Commission Expires: /� /9 /G200 i S El? ././ +iP�% /2-09*--- •:'?' lr OF WP ORD # 06 -524 Page 73