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Ord 95-238 ORDINANCE NO. 95-238 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, GRANTING A NONEXCLUSIVE CABLE COMMUNICATIONS FRANCHISE TO TELE-VUE SYSTEMS, INC. D/B/A VIACOM CABLE AND PROVIDING FOR A FRANCHISE FEE, TERMS OF FRANCHISE, FRANCHISE AREA, TECHNICAL STANDARDS AND EVALUATIONS, REPORTING REQUIREMENTS, ACCESS CHANNELS, PENALTIES, BOND AND INSURANCE REQUIREMENTS AND OTHER FRANCHISE PROVISIONS IN CONNECTION WITH OPERATING A CABLE SYSTEM FOR THE DISTRIBUTION OF TELEVISION SIGNALS AND OTHER COMMUNICATION SYSTEMS. WHEREAS, pursuant to RCW 35A.11.030, the City of Federal Way has the power, among other things, to grant franchises; and WHEREAS, on this date the City Council has approved a master cable ordinance, the terms of which will regulate the provision of cable communication systems within the City of Federal Way and which will apply uniformly to this franchise as well as to all cable franchises in the City of Federal Way; and WHEREAS, prior to the effective day of incorporation of the City of Federal Way, King County granted a non-exclusive cable communication system franchise to, amongst other entities, Cable TV Puget Sound, Inc., predecessor in interest to Tele-Vue Systems, Inc., a Washington corporation d/b/a Viacom Cable (hereinafter "Viacom"), by King County Ordinances No. 7841 and 8443, and motions and amendments related thereto and Franchise No. 560 and amendments thereto (collectively, the "Viacom Franchise"); and WHEREAS, the Viacom Franchise as granted by King County to Viacom expired on February 13, 1992; and WHEREAS, by Ordinance No. 91-104, the City of Federal Way granted an extension of the Viacom Franchise through February 14, 1993, and by Ordinance No. 93-161 granted an extension through February 14, 1994, and by Ordinance No. 94-204 granted an extension through February 14, 1994, and by Ordinance No. 95-227 granted an extension through April 14, 1995; and WHEREAS, the City and Viacom have met and negotiated non- exclusive franchise terms; and Ordinance # 95-238, Page 1 cGORf WHEREAS, the Finance and Economic Development Council Committee met and considered this ordinance on February 23, March 23, April 26 and June 22, 1995 and directed that this ordinance be forwarded to the full Council for approval; and WHEREAS, the full City Council had a first reading of this ordinance on June 6, 1995 at its regularly scheduled meeting. WHEREAS, the full City Council considered this ordinance on June 20, 1995 at a public hearing and referred it back to the Finance/Economic Development Council Committee. WHEREAS, the City Council finds that this ordinance is in the public interest; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Ordinance # 95-238, Page 2 ~ Section 1: Section 2: Section 3: Section 4: Section 5: Section 6: Section 7: Section 8: Section 9: Section 10: Section 11: Section 12: Section 13: Section 14: Section 15: Section 16: Section 17: Section 18: Section 19: Section 20: Section 21: Section 22: Section 23: Section 24: TABLE OF CONTENTS Eag:.a Relation To Master Franchise ..........................................................6 Purpose................................................................................................6 . Grant of Franchise..............................................................................7 Length of Franchise ...........................................................................7 Application...........................................................................................7 Franchise Area....................................................................................7 Franchise Fee .................................................................................7-9 A. Late Payment.................................................................................8 B. Financial Reports...........................................................................8 C. Audit by City............................................................................... 8, 9 D. Non-waiver.....................................................................................9 E. Taxes................................................................................................9 Technical Standards................................................................... 9, 10 Technical Evaluation ................................................................10, 11 ,Reports........................................................................................11 12 Periodic Meetings............................................................................ 12 Customer Service............................................................................ 12 Telephone Response ...............................................................12, 13 Failure to Improve Customer Service ....................................13, 14 Refunds for Outages ....................................................................... 14 Termination of Subscriber Service .............................................. 14 Future Provisions.......................................................................14, 15 A. Upgrade........................................................................................14 B. Other Services............................................................................. 15 Emergency Override .................................................................15, 16 Access Channels.......................................................................16, 17 A. Government Access ...................................................................16 B. Educational Access.................................................................... 16 C. Public Access.............................................................................. 16 Access Broadcasting Equipment.................................................. 17 City-wide Public, Educational, and Government Access Interconnection .................................................................. 18 Public Buildings............................................................................... 18 Institutional Networks................................................................18, 19 City-wide Institutional Network Interconnection......................... 19 Ordinance # 95-238, Page 3 ~ Section 25: Section 26: Section 27: Section 28: Section 29: Section 30: Section 31: Section 32: Section 33: Section 34: Section 35: Section 36: Section 37: Section 38: Section 39: Section 40: TABLE OF CONTENTS ~ Office Location ................................................................................. 19 Coverage .......................................................................................... 19 Cable Availability.............................................................................20 Extraordinary Installation Charges............................................... 20 Discounts ....................................................................................20, 21 Penalties .....................................................................................21, 22 External Franchising Costs......................................................22, 23 Performance Bond .......................................................................... 23 Insurance ....................................................................................23-25 A. Minimum Limits .....................................................................23, 24 B. Mandatory Insurance Provisions ............................................. 24 C. Verification of Coverage......................................................24, 25 Independent Contractors ............................................................... 25 Acceptance....................................................................................... 25 General Provisions.................................................................... 25-28 A. Entire Agreement.................................................................25, 26 B. Modification ................................................................................26 C. Full Force and Effect ................................................................. 26 D. Assignment................................................................................. 26 E. Attorney Fees ............................................................................. 26 F. No Waiver ................................................................................... 26 G. Governing Law........................................................................... 27 H. Authority ...................................................................................... 27 I. Notices.........................................................................................27 J. Captions...................................................................................... 27 K. Time of Essence ........................................................................ 27 L. Remedies Cumulative ........................................................27, 28 Force Majeure .................................................................................. 28 Severability.......................................................................................28 Ratification ........................................................................"""""""" 28 Effective Date ................................................................................... 28 Ordinance # 95-238, Page 4 TABLE OF CONTENTS APPENDICES Appendix A............................................................Message Channel Equipment List Appendix B......................................................................... Production Equipment List Appendix C ..................................................Access and I-Net Interconnection Point Appendix D ......................................................................Educational Drop Locations Appendix E...........................................................Municipal Building Drop Locations Appendix F...........................................................................Municipall-Net Locations .....................................................................................Municipal I-Net Map Appendix G ...................................................................... Educational I-Net Locations .................................................................................Educationall-Net Map Ordinance # 95-238, Page 5 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 2 3 4 5 6 7 8 9 10 11 12 13 Section 3: Relation to Master Franchise The provisions and the definitions of terms contained in the Master Franchise adopted by the Federal Way City Council of even date (the "Master Franchise") are incorporated by this reference and shall apply to this Franchise Agreement as if fully set forth in this Franchise Agreement, provided that, in the event of a conflict betwen the provisions of the Master Franchise and this Franchise Agreement, the express provisions of this Franchise Agreement shall govern. The express provisions of this Agreement constitute a valid and enforceable contract between the parties. Subject to federal and state preemption, the material terms and conditions contained in this Franchise Agreement may not be unilaterally altered by the Operator or City through subsequent amendment to the Master Franchise, any other ordinance, rule, regulation, resolution, or other enactment of the City, except in the lawful exercise of the City's police power. Section 2: Purcose. This Ordinance shall establish a non-exclusive Franchise and shall constitute an agreement between the City of Federal Way, a Washington municipal corporation (hereinafter the "City") and Tele-Vue Systems, Inc., a Washington corporation d/b/a Viacom Cable (hereinafter the "Operator"). The Operator promises to construct, maintain, and operate a cable system for the distribution of communication services pursuant to the terms of this Franchise. The City agrees to grant the Operator all necessary rights and privileges to use Public Rights of Way necessary for a cable communication system. This Franchise shall, as of its effective date, supersede and replace all existing franchises previously granted by the City to the Operator or any of its predecessors, subsidiaries or affiliated companies. Ordinance #95-238, Page 6 16 17 18 19 20 21 22 23 24 25 26 27 2 3 Section 3: Grant of Franchise For the purposes of constructing, operating and maintaining a system in the Franchise Area, the Operator may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon across and along the streets 4 5 and public property such lines, cables, fiber optics, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other 6 7 property and equipment as are necessary and appropriate to the operation of the system. 8 9 Section 4: LenQth of Franchise. The length of this Franchise shall be for a term of ten (10) years 10 I I commencing on August 14, 1995 and terminating on midnight August 13, 12 13 2005. Section 5: ADplication. The Operator shall submit an application on applicable forms and 14 15 furnish a non-refundable filing fee equal to Five Thousand Dollars ($5,000.00) which fee is not in lieu of franchise fees or other payments owed to the City. Section 6: Franchise Area. The Operator's service area shall be the entire incorporated area of the City, in its present incorporated form or in any later reorganized, consolidated, enlarged, or re-incorporated form ("Franchise Area"). In the event of any incorporation or annexation of any town or city which incorporates any portion of the Franchise Area, those portions shall automatically be removed from the description of the Franchise Area upon completion of such incorporation or annexation. Section 7: Franchise Fee. The Operator shall pay a quarterly estimate to the City, on or before the forty-fifth (45th) day following the calendar quarter equal to five percent (5%) of Ordinance # 95-238, Page 7 16 17 18 19 20 21 22 23 24 25 26 27 2 3 gross revenues, for the preceding calendar quarter as defined in the Master Franchise. Revenues that are derived as a portion of a national or regional service shall be computed on a per Subscriber basis if such determination cannot be achieved by other means. 4 5 The City may modify the franchise fee if so permitted by federal and/or state law. Prior to implementation of any modification in franchise fees the 6 7 Operator may request a public hearing by the City Council to discuss said modification. Following such a hearing the City Council may require the 8 9 implementation of such modification in accordance with the provisions of this Ordinance. 10 1 1 A. Late Pavment. Any quarterly franchise fee not paid by the 12 13 Operator within forty-five (45) days of the end of a quarter shall bear interest from the due date until paid, at the rate of twelve percent (12%) per annum, or 14 15 the maximum amount allowed under State law, whichever is greater. B. Financial Reoorts. Each franchise fee payment shall be accompanied by a financial report on a form provided by the City showing the basis for the Operator's computation, including, without limitation, revenues received by the Operator within the City from such items as basic service, expanded basic service. pay TV service, other applicable sources of revenue, and such other information directly related to confirming the amount of the Operator's gross revenues as may be reasonably required by the City. C. Audit bv City. The City shall have the right, upon reasonable written notice of no less than ten (10) working days, to inspect the books and records of the Operator during normal business hours, for the purpose of ascertaining the actual gross revenues collected by the Operator. Such audit shall only go back five (5) years and the City shall be required to close the audit within six (6) months from the date of completion of work in the field at the Ordinance # 95-238, Page 8 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 3 Operator's office(s). In the event that such audit discloses a discrepancy of more than ten percent (10%) between the financial report submitted by the Operator with a quarterly payment and the actual gross revenues collected by 4 5 the Operator, the Operator agrees to pay to the City the costs of such audit. In the event that such audit results in a determination that additional franchise 6 7 fees are due the City, the Operator further agrees to pay interest as required for late payment on such additional franchise fees computed from the date on 8 9 which such additional franchise fees were due and payable. D. Non-waiver. Acceptance of any franchise fee payment by the City shall not be construed as an agreement by the City that the franchise fee paid is in fact the correct amount, nor shall acceptance of payment by the City be construed as a release or waiver of any claim the City may have for further or additional sums payable under the provisions of this Ordinance. E. ~. Nothing in this Section shall limit the Operator's obligation to pay applicable local, state, or federal taxes. Section 8: Technical Standards. Subject to federal, state and local law, the Operator shall comply with FCC rules, Part 76, Subpart K, Section 76.601 through 76.610 as amended, hereafter, and, at the minimum, the following laws, rules, regulations and procedures: 1. Applicable City, state and national/federal codes and ordinances; Applicable Utility Joint Attachment Practices; The National Electric Safety Code; ANSI C2; 2. 3. 4. 5. City Utility Code Requirements; City rights-of-way procedures; 6. Bell System Code of Pole Line Construction Ordinance # 95-238, Page 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 3 The Operator shall notify the City prior to the date of the semi-annual FCC Proof of Performance Test. The City, as authorized by FCC regulations, may, at its option, monitor the taking of such tests. Upon request the Operator shall, in any event, provide a copy of the results of the system evaluation to the 4 5 City. 6 7 Section 9: Technical Evaluation. Upon receipt of a pattern of reoccurring customer complaints or other empirical data such as the Operator's non-compliance with FCC standards or 8 9 regulations, the City may notify the Operator of its concerns regarding the technical performance of the cable system. The Operator then shall take all 10 I I necessary steps to either correct the perceived problem or demonstrate to the City that the alleged difficUlty is not attributable to the operation of the system. If the Operator is making a good faith effort to correct such deficiencies, it and the City shall agree to a reasonable date by which time the system shall again be in conformance. If the Operator has failed to rectify the situation by that date, the City may elect to retain an independent qualified consultant to conduct an analysis of the cable system and its performance and submit a report of such analysis to the City and the Operator. The report prepared by the consultant in response to the City's request for a system evaluation shall include the following information: 1. A description of the technical problem in cable system performance which precipitated the special tests; 2. What cable system components were tested; 3. The equipment used and procedures employed in testing; 4. The method, if any, by which specific performance problems may be resolved; and Ordinance # 95-238, Page 10 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 3 4 5 6 5. Any other information pertinent to said tests and analyses which may be required by the City. If the tests indicate that the system is not in material compliance with FCC standards or the requirements of this Franchise, the Master Franchise or other applicable law, the Operator shall reimburse the City for any costs involved in conducting such tests, such as consultant fees or other expenses. Section 10: Reports. 7 8 The Operator shall furnish, upon request. a report of its activities as appropriate. Such report shall include the following: 12. 13. 14. 1. 2. The Operator's most recent annual report: A copy of the 10-K Report, if required by the Securities and 3. Exchange Commission; The number of residences within the City for which cable is 4. 5. available; The number of Subscribers with basic services; The number of Subscribers with expanded basic services; The number of Subscribers with premium services; 6. 7. The number of Subscribers with addressable services; 8. The number of hook-ups in the reporting period; 9. 10. The number of disconnects in the reporting period; The total number of miles of cable in the City; 11. A summary of all service calls received by category, length of time taken to resolve and action taken to provide resolution; Copies of all FCC service logs: A statement of its current billing practices, and a sample copy of the bill format; A current copy of its Subscriber service contract; Ordinance # 95-238, Page 11 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 15. A current copy of its cable rate sheet delivered to Subscribers; and Report on operations - Such other reports that may be appropriate 2 3 16. under State and Federal law and for which data is available. 4 5 Section 11: Periodic Meetings. Upon request, the Operator shall meet with designated City officials 6 7 and/or designated representative(s) to review the performance of the Operator for the preceding period. The subjects may include, but are not limited to, 8 9 those items covered in the periodic reports and performance tests. Section 12: Customer Service. The Operator shall at all times be in compliance with FCC Customer Service obligations 76.309, Subpart II, as now existing or as may be amended, which standards are incorporated into this Franchise by reference ("FCC Customer Service Standards"). The City, however, reserves the right to impose more stringent requirements if it so deems necessary. Section 13: TeleDhone ResDonse. In order that the City may be informed of the Operator's success in achieving satisfactory customer relations in its telephone answering functions, the Operator shall, upon request by the City, and routinely no less than quarterly, provide the City with a report that will provide, at a minimum, the following information: 1. 2. Number of calls received per hour; Number of rings prior to an answer; 3. 4. Average talk time; Number of calls abandoned by the caller; 5. 6. Average hold time; Percentage of time all lines are busy; and 7. An explanation of any abnormalities. Ordinance # 95-238, Page 12 14 15 16 17 18 19 20 21 22 23 24 25 26 2 3 This report may be a regional report until such time that data specific to the City's jurisdiction is available. When such data is available, this report shall be a local City report. In addition and when technically feasible, the Operator will use its best efforts to install a telephone reporting system that will 4 5 be specific to the City alone. At the time that reports, (Section 10) are required, the Operator shall furnish an updated status report of progress made to this 6 7 end. In agreeing to such temporary treatment, the City does not waive its rights to require such reporting in accordance with FCC Title 47CFR Subpart H(ii)(c). 8 9 This data will be compared to minimum standards of the FCC Customer Service Standards. 10 I 1 Calls for service generated during a period of system outages due to an emergency affecting more than twenty-five (25) customers may be excluded 12 13 from the service response calculations. Except for those defined by FCC regulations, the City shall have the final determination as to what constitutes a system failure due to an emergency and which calls shall be excluded from the service level calculations. Section 14 Failure to ImDrove Customer Service. The City or its designee shall review telephone response and customer service information with the Operator. It will be assumed that improvements will be made by the Operator in the areas of non-compliance from the last reporting period. Failure to do so may result in the calling of a public hearing by the City Council for the purpose of examining the reasons, if any, why such improvements were not achieved by the Operator. An unsatisfactory record will also result in the hearings being made part of an exhibit under Section 626(c)(1 )(A) and (B) of the Act alleging that such practices have failed to conform with future refranchising requirements as Ordinance # 95-238, Page 13 16 17 18 19 20 21 22 23 24 25 26 2 3 stated therein. The Operator's corporate office, if appropriate, shall be advised of the City's findings. Section 15: Refunds for Outages. No charge for the period of an outage shall be made to the Subscriber if 4 5 the Operator has knowledge that the Subscriber was without service for a period exceeding twenty-four (24) hours. 6 7 Section 16: Termination of Subscriber Service. 8 9 Upon termination of any Subscriber and upon Subscriber's request, the Operator shall promptly remove from the Subscriber's premises, all of its 10 1 1 facilities and equipment, except for drop cable and internal wiring. Upon notification from subscribers, all charges for services will be discontinued. 12 13 Subscriber shall return all equipment in accordance with the terms and conditions of the customer contract (work order). 14 15 Should the Operator require the Subscriber to return the equipment, the Operator shall establish convenient hours including evening and weekend hours, for return of the equipment, and the Subscriber shall have a reasonable length of time in which to return the equipment. The Subscriber shall be advised of the date by which the equipment must be returned before a charge may be imposed for failure to return equipment. Section 17: Future Provisions. A. Uoorade. The Operator shall complete the upgrading of the cable system to a minimum of seventy (70) channel capacity using fiber optic no later than forty-eight (48) months from the effective date of this Franchise. In the event that such project encounters unforeseeable delays, the City will be fully informed of such facts and the Operator may request an extension to such completion date. Ordinance # 95-238, Page 14 16 17 18 19 20 21 22 23 24 25 26 B. Other Services. Because of the quickening pace of electronic 2 3 communication development, it is essential that the City be provided with such new features when they become technologically and economically feasible. 4 5 While such potential services are too numerous to enumerate, they include without limitation, computer interaction, interactive video on demand, 6 7 interactive shopping, Video Dial Tone (VDT) and similar developments. Recognizing that these types of services are not generally available at the 8 9 present and that the City's future franchise term expiration may not coincide with the advent of such services, the City may require that these features be 10 I 1 made available to the City within twelve (12) months upon one or more of the following occurrences: 12 13 1. Forty percent (40%) of other franchising authorities in the King- Pierce-Snohomish County area in Washington state have been 14 15 2. furnished such services. Any adjacent community has had these features made available to its Subscribers. However, prior to the implementation, the Operator may request a public hearing to review the cost/benefit to the City's Subscribers of such options. The City Council then, at its discretion, may require the activation of such feature(s), extend the time requirement, or postpone the event until further hearing. The Operator shall not be required to supply any service if the provision of such a service subjects the Operator to regulation by any governmental agency such as a utility or common carrier. Section 18: EmerQencv Override. The Operator shall be in compliance by no later than the date mandated with FCC Regulations requiring installation of an Emergency Alert System Ordinance # 95-238, Page 15 10 1 I 12 13 14 15 16 17 18 19 20 2 I 22 23 24 25 26 27 2 3 (EAS) and provide an audio interrupt on all channels and video message on at least one channel during an emergency. The Operator shall establish a process which will provide a character generated scroll and will make its best effort to furnish a voice override 4 5 notifying viewers and listeners of an emergency. Subject to federal and state laws and regional planning authorities, the City may preempt the operation of 6 7 the system at any time. The City, at its option may elect to share this service with adjoining communities. 8 9 Section 19: Access Channels. Within the below stated times following the effective date of this Franchise, unless such time is extended by the City, the Operator shall make access channels available to the City and/or its residents: A Government Access. Upon request of the City Council, one (1) channel capable of cablecasting character generated, taped, or live programming within twelve (12) months following the effective date of this Franchise. B. Educational Access. Upon request by the City Council, one (1) channel within twenty-four (24) months from the effective date of this Franchise or twelve (12) months following the upgrade described in Section 17' Future Provisions, upon a showing to the City Council by community educators of the need for such a channel and the availability of appropriate programming and upon the City Council's consent. C. Public Access. Upon request, one (1) channel within twenty-four (24) months of the execution of the Franchise or twelve (12) months following the upgrade described in Section 17' Future Provisions, whichever is the earlier. Notwithstanding the above, the City may elect initially to share Public, Educational and Government (PEG) access channels with other jurisdictions Ordinance # 95-238, Page 16 15 16 17 18 19 20 21 22 23 24 25 26 27 2 3 until such time as the community interest is deemed sufficient to warrant a City only channel. The decision to make such initial channel implementation is 4 solely at the discretion of the City. Additional channels over and above these shall be made available 5 6 when a channel is used for access purposes with programming during fifty percent (50%) of the hours between 10:00 a.m. and 10:00 p.m., during any 7 8 consecutive ten (10) week psriod. Commercial, Public Broadcast SeNice (PBS) programs and character generated programming are not included as 9 10 part of the criteria to determine additional channel usage. Programming on additional channel(s) shall be distinct and non-repetitive of the previous 1 1 12 channel(s). The City shall provide a notarized statement verifying the need for additional channel(s) and such channel(s) shall be supplied by the Operator 13 14 within six (6) months of such request. Section 20: Access Broadcastina EauiDment. Upon request by the City Council, the City shall require the equipment, or its equivalent, listed in Appendix "B". However, prior to that time and within sixty (60) days subsequent to the completion of the channel upgrade described in Section 17: Future Provisions, the City shall be furnished by the Operator with electronic message board equipment, or its equivalent, as specified in Appendix "A". In order to furnish this equipment, upon request of the City Council, the Operator shall pay to the City the following amounts in accordance with the following schedule which payment date will be at the election of the City: 1. On or after five (5) years from the effective date of this Franchise-One Hundred Thousand Dollars ($100,000.00). 3. On or after eight (8) years from the effective date of this Franchise- Twenty-Five Thousand Dollars ($25,000.00). Ordinance # 95-238, Page 17 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Section 21: Citv-wide Public. Educational. and Government Access Interconnection. 2 3 Upon request of the City Council and not less than sixty (60) days following the Operator's respective upgrades, an interconnection will be made, 4 5 as appropriate, between the Operator's system and TCI of Auburn, Inc.'s system in order to provide identical access reception by all Subscribers within 6 7 the City limits. The method of such interconnection and the sharing of such costs will be left to the individual Operators. Appendix "C" suggests a likely 8 9 interconnection point. Section 22: Public Buildings. 10 I I The Operator shall provide basic service without charge for installation 12 13 or monthly rate to all public buildings and schools including, without limitation, those specified in Appendices "0" and "E" as well as other such buildings that may be constructed during the period of the Franchise. Section 23: Institutional Networks (I-Netst The Operator shall install and, upon City Council request, activate the software and equipment required to integrate telephony/data transmission and interactive capability into its system between the fourth (4th) and seventh (7th) year of the Franchise so that the Subscriber network will provide the transportation capability to accommodate the future uses of the City through dynamic spectrum management technologies or its equivalent. If such dynamic spectrum management technologies are not commercially available and are not financially feasible, the Operator may petition the City for relief from implementing, or deferral of implementation of, such technologies, provided however, that if such technologies are not implemented or deferred, the Operator shall be obligated to provide the City with up to four (4) MHz of reverse capacity on the system and shall cooperate and coordinate in good Ordinance # 95-238, Page 18 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 3 faith with the City in making use of the reverse capacity allocated hereunder and the other capacity provided under this Section to meet the future uses and applications of the City. Section 24: Cltv-wlde Institutional Network Interconnection. 4 5 In order to provide a uniform communications system throughout the City, the Operator and TCI of Auburn, Inc. shall provide interconnection of 1- 6 7 Nets as appropriate. The map shown as Appendix "C" indicates a suggested interconnection point. Costs are to be shared as discussed in Section 21 City- 8 9 wide Public Educational and Government Access Interconnection 10 1 I Section 25: Office Location. The Operator shall establish and maintain a location within three (3) miles of 12 13 the City limits of Federal Way which function will be to accept payments, return or exchange equipment and other customer services. Such facility shall be in place no later than six (6) months from the effective date of this Franchise and shall be maintained throughout the term of this Franchise. Section 26: Coveraae. Subject to the density considerations in Section 27 Cable Availability, the City shall be provided with cable service in the entire Franchise Area. If such a condition does not now exist, the Operator shall complete such wiring and be in a position to offer cable reception to all residents within six (6) months from the grant of the Franchise. Areas subsequently annexed shall be provided with cable availability within twelve (12) months. The Operator shall not be required to furnish cable to those areas having cable service provided by another Operator. In those areas which are adjacent to an unbuilt area, the Operator with the nearest trunk and/or distribution line will be responsible to provide the required cable service. Ordinance # 95-238, Page 19 16 17 18 19 20 21 22 23 24 25 26 27 2 3 Section 27: Cable Availability. Cable service shall be available to all residents within the City provided there are at least sixteen (16) dwelling units per street mile. Cable service shall not be denied to any group of potential residential cable Subscribers 4 5 because of the income of the residents of the local area in which such group resides. 6 7 Section 28: Extraordinary Installation Charaes. All residents requesting cable service and living within one hundred fifty 8 9 (150) feet of existing cable distribution or trunk lines shall have the cable installed at the prevailing published installation rate. Underground services 10 1 1 shall be furnished on a time and material basis. 12 13 In the event a request is made for service and the residence is more than one hundred fifty (150) feet from an existing cable distribution or trunk line, the overhead installation shall be completed on a time and material cost basis for 14 15 that portion of the service line extending beyond one hundred fifty (150) feet. The Operator shall enter into a contractual agreement with the resident(s) requesting service wherein the Operator shall be reimbursed for its construction costs. In such instance, the Operator shall make a pro-rata refund if and when additional dwellings are serviced by the same distribution line. Section 29: Discounts The City recognizes that the Operator voluntarily provides low income discounts to its customers. The Operator is adopting the standards established for Supplemental Security Income (SSI) criteria as the eligibility standards. The rates to be offered qualifying customers reflect a twenty percent (20%) discount off the retail rate for limited service, satellite value package, and standard service. There is no discount on premium, pay-per-view, and other optional services or equipment. If at any time in the future the Franchise is Ordinance # 95-238, Page 20 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 3 transferred, the City shall have the right to require a similar discount be provided by the subsequent Operator. 4 Section 30: Penalties. The City shall notify the Operator in writing stating the nature of a 5 6 perceived deficiency in the operation of the cable system or the Operator's failure to comply with conditions of the Franchise and setting forth the time the 7 8 Operator will be allowed to rectify such alleged improper condition. The Operator may request an extension of time if construction is suspended or 9 10 delayed by the City, or where unusual weather, natural consequences (e.g. earthquakes, floods, etc.), extraordinary acts of third parties, or other I I 12 circumstances which are reasonably beyond the control of the Operator delay progress, provided that the Operator has not, through its own actions or inactions, contributed to the delay. The amount of additional time allowed will be determined by the City. The extension of time in any case shall not be greater than the extent of the actual non-contributory delay experienced by the Operator. Failure of the Operator to correct these deficiencies, except in those circumstances cited above, may result in the City assessing monetary penalties of Two Hundred Dollars ($200.00) per day for each day beyond thirty (30) days that the Operator has not fulfilled the requirement(s), and/or may result in the City calling a hearing to determine if a violation of the Franchise has occurred in accordance with Section 28 Revocation for Cause of the Master Franchise. Monetary penalties may be assessed for any Franchise, Master Franchise, or other violation including, without limitation: 1. Failure to conform to customer service standards as required by, Section 12 Customer Service. Ordinance # 95-238, Page 21 17 18 19 20 21 22 23 24 25 26 27 2. Failure to install the channel upgrades and features as required by Section 17 Future Provisions. 2 3 3. PEG access channel allocations as required by Section 19 4 Access Channels. 5 6 4. Public access equipment as required by Section 20 Access Broadcastina EQuioment. 7 8 5. Provision of equipment and funds for educational access broadcasting as required by Section 20 Access BroadcastinQ 9 10 6. Eauioment. Provision of equipment and funds for government access 1 1 12 broadcasting as required by Section 20 Access BroadcastinQ Equipment. 13 14 7. Institutional network activation as required by Section 23 Institutional Networks II-Nets\. 15 16 8. Coverage of existing and future annexed areas as required by Section 26 Coverage. Monetary penalties may be assessed retroactive to the date that notification was provided to the Operator in such cases where the Operator has been non-responsive in correcting the situation or in the case of flagrant violations. If payment of any of these penalties is delinquent by three (3) months or more, the City may require partial or total forfeiture of performance bond or other surety. Section 31: External FranchlsinQ Costs Prior to expenditure of capital for any franchise related requirements that would be treated as an external cost passed through to customers under 47CFR§76.922, the Operator shall notify the City of its intent to exercise its right and the amount to be passed through to customers. The City may waive the Ordinance # 95-238, Page 22 14 15 16 17 18 19 20 2 I 22 23 24 25 26 2 3 franchise related requirement if, in the City's opinion, the increase in rates would be a burden on City rate payers. Section 32: Performance Bond. 4 Prior to the commencement of any work in the Franchise Area, Operator shall either furnish a performance/payment bond executed by Operator and a surety authorized to do business in the State of Washington or assign funds in 5 6 7 favor of the City, which performance bond or assignment of funds shall be in a 8 9 form acceptable to the City Attorney and in the amount of One Hundred Thousand Dollars ($100,000.00), in order to guarantee Operator's performance of its obligations under this Franchise, conditioned that the 10 I 1 Operator observe all of the covenants, terms and conditions and faithfully perform all of the Operator's obligations under this Franchise; in order to 12 13 guarantee the Operator's correction or replacement, on receipt of notice by the City, of any defective work or materials used in the replacement of the City Public Rights of Way or other public property discovered within a two-year period from the date of the replacement and acceptance by the City; and to guarantee the restoration of all Public Rights of Way within the period of time specified by the City in the permit issued for such work. Section 33: Insurance. A. Minimum Limits. The Operator shall, concurrently with the filing of an acceptance of this Franchise, furnish to the City and file with the City Clerk, certificate(s) of insurance which will be maintained in full force and effect, at its own cost and expense, at all times during the existence of this Franchise, providing insurance coverage which is at least as broad as insurance service office ("ISO") Form Number CG 00001 (commercial general liability), including "X", "C", "U" and ISO Form Number CA 00001 (commercial auto): Ordinance # 95-238, Page 23 10 I I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 3 (1) Workers compensation and employer's liability insurance in amounts sufficient pursuant to the laws of the State of Washington; (2) Commercial general liability insurance or self-insurance with combined single limits not less than Two Million Dollars ($2,000,000.00) 4 5 for bodily injury, including personal injury or death, products liability, contractual coverage, operations, explosion, collapse, underground and 6 7 property damage coverage; and (3) Automobile liability insurance with limits of liability not less 8 9 than $1,000,000 each occurrence for bodily injury, including death and property damage. B. Mandatory Insurance Provisions. The commercial general liability insurance and automobile liability insurance policies shall be endorsed to contain the following provisions: (1 ) The City, its officers, elected officials, employees, and volunteers are to be named as additional insured; (2) Coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability; (3) Coverage shall not be suspended, canceled, modified or reduced except after thirty (30) days prior written notice to the City delivered by certified mail, return receipt requested; and (4) Coverage shall be primary as to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance by the City, its officers, officials, employees or volunteers shall be in excess of Operator's required insurance. C. Verification of Coveraç¡e. Operator shall furnish the City with certificates of insurance and original endorsements evidencing the coverages Ordinance # 95-238, Page 24 15 16 17 18 19 20 21 22 23 24 25 26 2 3 requires by this Section. The certificates and endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf and must be 4 received and approved by the City prior to the commencement of any work. At the City's request, Operator shall deliver certified copies of all required 5 6 insurance policies. In satisfying the foregoing insurance requirements, Operator may self-insure against risks in such amounts and upon such verification as is acceptable to the City. Operator's failure to maintain such 7 8 insurance policies shall be grounds for the City's immediate termination of this Franchise. 9 10 Section 34: Independent Contractors. This Franchise shall not be construed to provide that the Operator is the 11 12 agent or legal representative of the City for any purpose whatsoever. The 13 14 Operator is not granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the City or to bind the City in any manner whatsoever. Section 35: AcceDtance. This grant of Franchise and its terms and provisions shall be accepted by the Operator by the submission of a written instrument, executed and sworn to by a corporate officer of the Operator before a Notary Public, and filed with the City within sixty (60) days after the effective date 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. Section 36: General Provisions. A. Entire AQreement. This Franchise contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Franchise Ordinance # 95-238, Page 25 16 17 18 19 20 21 22 23 24 25 26 27 2 3 and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose. B. Modification. No provision of this Franchise may be amended or 4 5 added to except by agreement in writing signed by both of the Parties. C. Full Force and Effect. Any provision of this Franchise which is 6 7 declared invalid, void or illegal shall in no way affect, impair, or invalidate any other provision hereof and such other provisions shall remain in full force and 8 9 effect. D. Assianment. Operator shall not have the right to transfer or 10 I 1 assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the City. Any assignee shall, within thirty 12 13 (30) days of the date of any approved assignment, file written notice of the assignment with the City together with its written acceptance of all terms and 14 15 conditions of this Franchise. E. Attorney Fees. In the event the City or the Operator defaults on the performance of any terms in this Franchise, and the Operator or the City places the enforcement of the Franchise or any part thereof, or the collection of any monies due, or to become due hereunder, in the hands of an attorney, or file suit upon the same, each party shall pay its own costs, including reasonable attorneys' fees, costs and expenses. The venue for any dispute related to this Franchise shall be King County, Washington. F. No Waiver. Failure of the City to declare any breach or default immediately upon the occurrence thereof, or delay in taking any action in connection with, shall not waive such breach or default, but the City shall have the right to declare any such breach or default at any time. Failure of the City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default. Ordinance # 95-238, Page 26 1 1 12 13 14 15 16 17 18 19 20 2 I 22 23 24 25 26 27 28 G. GoverninQ Law. This Franchise shall be made in and shall be 2 3 governed by and interpreted in accordance with the laws of the State of Washington. 4 5 H. Authority. Each individual executing this Franchise on behalf of the City and Operator represents and warrants that such individuals are duly authorized to execute and deliver this Franchise on behalf of the Operator or 6 7 the City. I. ~. Any notices required to be given by the City to Operator 8 9 or by Operator to ths City shall be delivered to the parties at the following addresses: 10 Operator: Director Government Relations Viacom Cable 2316 S. State Street Tacoma, WA 98405 City: City Manager City of Federal Way 33530 First Way South Federal Way, WA 98003 Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth herein. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. J. Captions. The respective captions of the Sections of this Franchise are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect in any respect any of the provisions of this Franchise. K. Time of Essence. Time is of the essence of this Franchise and each and all of its provisions in which performance is a factor. L. Remedies Cumulative. Any remedies provided for under the terms of this Franchise are not intended to be exclusive but shall be cumulative with all other remedies available to the City at law, in equity or by statute. Ordinance # 95-238, Page 27 10 I 1 12 13 14 15 16 17 18 19 2 3 However, the City will not simultaneously collect penalties under Section 30' Penalties and payment under Section 32' Performance Bond. Section 37: Force Majeure Prevention or delay of any performance under this Franchise Agreement 4 5 due to circumstances beyond the Operator's control or acts of God, shall not be deemed non-compliance or a violation of this Agreement. 6 7 Section 38: Severability. The provisions of this Ordinance are declared separate and severable. 8 9 The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of this Ordinance, or the validity of its application to other persons or circumstances. Section 39: Ratification. Any act consistent with the authority and prior to the effective date of this Ordinance is hereby ratified and affirmed. Section 40: Effective Date. This Ordinance shall take effect and be in full force five (5) days from and after its passage, approval, and publication as provided by law. ~ ~ day of ~";J" City C~";:;:f th, City of Fede..1 Way thl, / 23 U CITY OF FEDERAL WAY 24 H ~~y~dJ#~/ 28 ATTEST: H '2i(([¡~~ 3 2 CITY CLERK, N. CHRISTINE GREEN, CMC Ordinance # 95-238, Page 28 I 2 APPROVED AS TO FORM: 3~ 4 '-. /,./ . <----------- < ~. // . 01 K.UNolli" 7 8 9 10 11 12 13 14 FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE ORDINANCE NO, 95-238 5/29/95 8/1/95 8/5/95 8/10/95 Ordinance # 95-238, Page 29 � ACCEPTANCE: � The undersigned hereby accepts all the rights, privileges and obligations of the above granted Franchise and acknowledges that such rights and privileges are subject to and limited by all of the terms, conditions and obligations contained therein. DATED this �� day of T,.1995. Tele-Vue Systems, Inc., dba Viacom Cable � , // : ', '' .� _ / � . - _ i Ordinance # 95-238, Page 30 I!'ederal Way Franchise Ordinance-Viacom Quantitv Message Channel Equipment List Description of Item Panasonic AG- 7150-S-VHS Player Panasonic AG-7350-S-VHS Player/Recorder Panasonic AG-513A-VHS TVNCR Texscan MSI 4000-Character Generator Appendix A Federal Way Franchise Ordinance-Viacom Quantitv 3 3 3 3 1 1 1 1 1 2 1 1 1 1 1 2 8 2 2 4 2 2 Production Equipment List Appendix B Descriotion of Item Sony PAC2/DXC-930-Complete Camera Package with Camera, CMA2 Power Supply and RMA930 Controller. No plate needed for tripod, and VCL-712BXEA Lense Sony CeDe-Power Cables Five Meter Pelco PT-550P-Pan and Tilt Pelco MPTV151 OPZ-Controller Joy Stick Rack Mount Panasonic WJMX-50-Four Channel Switcher Panasonic WJKB-50-Character Generator Panasonic AG-7750-S-VHS Record Deck Panasonic AG-7650-S-VHS Source Deck Panasonic AG-A770-Editor Controller JVC TM-9U-9" Color Monitor Panasonic CT-1383VY-13" Color Monitor Mackie ME-1202-Audio Mixer Tascam 112-Audio Cassette Recorder Panasonic WV-5203B-3x B&W Monitor Bridge Sony CKV27-EXR-27" Color Monitor Panasonic AG-460U-S-VHS 2ccd Camcorder Panasonic AG-BP212-Battery for AC-460 Bogan 3140- Tripod with Fluid Head Lowell TO-95-Ambi Light Kit Sony ECM-44BC-Lavalier Microphoness Shure SM-58-Cardioed Microphone Electovice 635A-Qmni Microphone Federal Way Franchise Ordinance-Viacom Appendix C Access and I-Net Interconnection Point ~ I EXISTING TCI/VIACOM FRANCHISE BOUNDARIES -'" -r CITY LIMITS ----------- X-Interconnection Point ACCESS Th:TERCON!'\ECT ROUTE' . . . . . . . Federal Way Franchise Ordinance-Viacom Appendix D Educational Drop Locations Public Schools Admin. 31405 18th South Adelaide Elementary 1635 SW 304th Brigadoon Elementary 3601 SW 336th Decatur High School 2800 SW 32Oth Federal Way High School 30611 16th South Head Start Program 625 South 314th lIIahee Junior High. 36001 First Avenue South Lake Grove Elementary 303 SW 308th Lakota Junior High 1415 SW 314th Mirror Lake Elementary 625 South 314th Nautilus Elementary 1000 South 289th Olympic View Elementary 2626 SW 327th Panther Lake Elementary 34424 First Avenue South Sacajawea Junior High 1101 Dash Point Road Sherwood Forest Elementary 34600 12th SW Silver Lake Elementary 1310 SW 325th Place Twin Lakes Elementary 4400 SW 320th Wildwood Elementary 2405 South 300th Green Gables Elementary 3015 S. 368th Street Enterprise Elementary 35101 Fifth Avenue W. Rainier View Elementary 3015 S. 368th Street. Saghalie Jr. High 33914 19th Avenue S. Truman High School 31455 28th Avenue S. Federal Way Franchise Ordinance-Vlacom Appendix E Municipal Building Drop Locations Federal Way City Hall 33530 First Way South Library 34210 First Way South Federal Way Police 34004 Ninth Avenue South Federal Way District Court 33506 10th Place South Steel Lake Parks & Recreation Steel Lake Maintenance Fac. 31132 28th Avenue South South King County Multiservice Center 1200 South 336th Steel Lake Annex 2645 South 312th West Way Community Center 33400 21st SW Federal Way Water & Sewer Main Office/Admin. 31627 First Avenue South Fire Station 31617 First Avenue South Federal Way Water & Sewer Water Operations Building 31623 First Avenue South Fire Station 33414 21st Avenue SW Federal Way Water & Sewer Lakota Treatment Plant 3045 SW Dash Point Road Fire Station 1405 SW 312th Library 848 South 320th Visitation Retreat Center 3200 SW Dash Point Rd. í=ederal Way Franchise Ordinance-Viacom Appendix F Municipal I-Net Locations 1. Federal Way City Hall 33530 First Way South 2. Federal Way Police 34004 Ninth Avenue South 3. Steel Lake Parks & Recreation Steel Lake Maintenance Fac. 31132 28th Avenue South 4. Steel Lake Annex 2645 South 312th . 5. Federal Way Water & Sewer Main Office/Admin. 31627 First Avenue South 6. Federal Way Water & Sewer Water Operations Building 31623 First Avenue South 7. Federal Way Water & Sewer Lakota Treatment Plant 3045 SW Dash point Road 8. Federal Way District Court 33506 10th Place South 9. South King County Multiservice Center 1200 South 336th 10. West Way Community Center 3340021 st SW 11. Fire Station 31617 First Avenue South 12. Fire Station 33414 21st Avenue SW 13. Fire Station 1405 SW 312th 14. Visitation Retreat Center 3200 SW Dash Point Rd. Federal Way Franchise Ordinance-Viacom Appendix F Municipal I-Net Map~ (Squ"" indiœte loœti~ 01 "h~I' ; to be included in the I-Net) EXISTING TCI/VIACOM FRANCHISE BOUNDARIES 2..'1 CITY LIMITS ----------- -~~ Total MunicipaJ I-Net 17.3 miles i=ederal Way Franchise Ordinance-Viacom Appendix G Educational I-Net Locations 1. Public Schools Admin. 31405 18th South 14. Sacajawea Junior High 1101 Dash Point Road 2. Adelaide Elementary 1635 SW 304th 15. Sherwood Forest Elementary 34600 12th SW 3. Brigadoon Elementary 3601 SW 336th 16. Silver Lake Elementary 1310 SW 325th Place 4. Decatur High School 2800 SW 320th 17. Twin Lakes Elementary 4400 SW 320th 5. Federal Way High School 3061116thSouth 18. Wildwood Elementary 2405 South 300th 6. Head Start Program 625 South 314th 19. Library 848 South 320th 7. lIIahee Junior High 36001 First Avenue South 20. Library 34210 First Way South 8. Lake Grove Elementary 303 SW 308th 21. Green Gables Elementary 3015 S. 368th Street 9. Lakota Junior High 1415 SW 314th 22. Enterprise Elementary 35101 Fifth Avenue W. 10. Mirror Lake Elementary 625 South 314th 23. Saghalie Jr. High 3391419th Avenue S. 11. Nautilus Elementary 1000 South 289th 24. Truman High School 31455 28th Avenue S. 12. Olympic View Elementary 2626 SW 327th 13. Panther Lake Elementary 34424 First Avenue South Federal Way Franchise Ordinance-Viacom Appendix G Educational I-Net Malt (Circles indicate lòcations of schools to be included in the I-Net) EXISTING TCI/VIACOM FRANCHISE BOUNDARIES CITY LIMITS ----------- -~~ Total Educational I-Net 24.1 miles CALIFORNIA ALL-PUR�E ACKNOWLEDGMENT � � '.. State of County of � On � Date personally appeared V before me � / / m of Signer(/y / // �ersonally known to me – OR ❑ proved to me on the asis of satisfactory evidence to be the person� whose name(�-is/�'�-SUbscribed to the within instrument and acknowledged to me that he/�D(eltty� executed the same in his/h�flth�authorized capacity(i�, and that by his/fy�th�signature�.on the instrument the person�, or the entity upon behalf of which the person� acted, executed the instrument. �s�•; • . ROSEANN JENNINGS � ' ��-t996fe) m • NarNnrpus�c•c�a�► WITNESS m hand and official seal. AlAMYDA COt7N'(Y �M�4� �Pt�+h�6, f�i7 �� � % ' Y 1 „ �1 Though the information below is not required by law, it may prove valuable to p�s re/ying on the document and cou/d prevent fraudulent removal and reattachment of this form to another document. Description of Attached Dg,r,ument Title or Type of Document: Document Date: Signer� Other Than Named Above: ' Capacity(i�,) Claimed by Signer� ,-- Signer's Name. , ❑ Individual ❑ Corporate Officer Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Trustee � Guardian or Conservator . ❑ Othgr: Top of thumb here Sign s Repre ntin • � Signer's Name: � ■ ✓ � Number of P Individual Corporate Officer Title(s): Partner — ❑ Limited ❑ General ■ ■ ■ ■ ■ Attorney-in-Fact Trustee Guardian or Conservator Other: Signer Is Representing � RIGHT THUMBPRINT OF SIGNER .. . . � 1994 National Notary Association • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827