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
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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
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Section 2:
Section 3:
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Section 5:
Section 6:
Section 7:
Section 8:
Section 9:
Section 10:
Section 11:
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Section 13:
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Section 18:
Section 19:
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Section 21:
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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
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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
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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
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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.
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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
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and public property such lines, cables, fiber optics, conductors, ducts, conduits,
vaults, manholes, amplifiers, appliances, pedestals, attachments and other
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property and equipment as are necessary and appropriate to the operation of
the system.
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Section 4: LenQth of Franchise.
The length of this Franchise shall be for a term of ten (10) years
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commencing on August 14, 1995 and terminating on midnight August 13,
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2005.
Section 5: ADplication.
The Operator shall submit an application on applicable forms and
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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
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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.
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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
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Operator may request a public hearing by the City Council to discuss said
modification. Following such a hearing the City Council may require the
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implementation of such modification in accordance with the provisions of this
Ordinance.
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A.
Late Pavment. Any quarterly franchise fee not paid by the
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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
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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
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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
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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
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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
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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
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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
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City.
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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
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regulations, the City may notify the Operator of its concerns regarding the
technical performance of the cable system. The Operator then shall take all
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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
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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.
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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
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Exchange Commission;
The number of residences within the City for which cable is
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available;
The number of Subscribers with basic services;
The number of Subscribers with expanded basic services;
The number of Subscribers with premium services;
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The number of Subscribers with addressable services;
8. The number of hook-ups in the reporting period;
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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;
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A current copy of its cable rate sheet delivered to Subscribers; and
Report on operations - Such other reports that may be appropriate
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under State and Federal law and for which data is available.
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Section 11: Periodic Meetings.
Upon request, the Operator shall meet with designated City officials
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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,
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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.
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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
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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
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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).
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This data will be compared to minimum standards of the FCC Customer
Service Standards.
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Calls for service generated during a period of system outages due to an
emergency affecting more than twenty-five (25) customers may be excluded
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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
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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
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the Operator has knowledge that the Subscriber was without service for a
period exceeding twenty-four (24) hours.
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Section 16: Termination of Subscriber Service.
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Upon termination of any Subscriber and upon Subscriber's request, the
Operator shall promptly remove from the Subscriber's premises, all of its
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facilities and equipment, except for drop cable and internal wiring. Upon
notification from subscribers, all charges for services will be discontinued.
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Subscriber shall return all equipment in accordance with the terms and
conditions of the customer contract (work order).
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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.
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B.
Other Services. Because of the quickening pace of electronic
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communication development, it is essential that the City be provided with such
new features when they become technologically and economically feasible.
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While such potential services are too numerous to enumerate, they include
without limitation, computer interaction, interactive video on demand,
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interactive shopping, Video Dial Tone (VDT) and similar developments.
Recognizing that these types of services are not generally available at the
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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
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made available to the City within twelve (12) months upon one or more of the
following occurrences:
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1.
Forty percent (40%) of other franchising authorities in the King-
Pierce-Snohomish County area in Washington state have been
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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
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(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
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notifying viewers and listeners of an emergency. Subject to federal and state
laws and regional planning authorities, the City may preempt the operation of
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the system at any time. The City, at its option may elect to share this service
with adjoining communities.
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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
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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
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solely at the discretion of the City.
Additional channels over and above these shall be made available
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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
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consecutive ten (10) week psriod. Commercial, Public Broadcast SeNice
(PBS) programs and character generated programming are not included as
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part of the criteria to determine additional channel usage. Programming on
additional channel(s) shall be distinct and non-repetitive of the previous
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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
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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).
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Section 21:
Citv-wide Public. Educational. and Government
Access Interconnection.
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Upon request of the City Council and not less than sixty (60) days
following the Operator's respective upgrades, an interconnection will be made,
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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
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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
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interconnection point.
Section 22: Public Buildings.
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The Operator shall provide basic service without charge for installation
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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
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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.
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In order to provide a uniform communications system throughout the
City, the Operator and TCI of Auburn, Inc. shall provide interconnection of 1-
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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-
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wide Public Educational and Government Access Interconnection
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Section 25: Office Location.
The Operator shall establish and maintain a location within three (3) miles of
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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
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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
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because of the income of the residents of the local area in which such group
resides.
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Section 28: Extraordinary Installation Charaes.
All residents requesting cable service and living within one hundred fifty
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(150) feet of existing cable distribution or trunk lines shall have the cable
installed at the prevailing published installation rate. Underground services
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shall be furnished on a time and material basis.
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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
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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
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transferred, the City shall have the right to require a similar discount be
provided by the subsequent Operator.
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Section 30: Penalties.
The City shall notify the Operator in writing stating the nature of a
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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
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Operator will be allowed to rectify such alleged improper condition. The
Operator may request an extension of time if construction is suspended or
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delayed by the City, or where unusual weather, natural consequences (e.g.
earthquakes, floods, etc.), extraordinary acts of third parties, or other
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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
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2.
Failure to install the channel upgrades and features as required
by Section 17 Future Provisions.
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3.
PEG access channel allocations as required by Section 19
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Access Channels.
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4.
Public access equipment as required by Section 20 Access
Broadcastina EQuioment.
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5.
Provision of equipment and funds for educational access
broadcasting as required by Section 20 Access BroadcastinQ
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6.
Eauioment.
Provision of equipment and funds for government access
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broadcasting as required by Section 20 Access BroadcastinQ
Equipment.
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7.
Institutional network activation as required by Section 23
Institutional Networks II-Nets\.
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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
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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
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favor of the City, which performance bond or assignment of funds shall be in a
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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
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Operator observe all of the covenants, terms and conditions and faithfully
perform all of the Operator's obligations under this Franchise; in order to
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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
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(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)
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for bodily injury, including personal injury or death, products liability,
contractual coverage, operations, explosion, collapse, underground and
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property damage coverage; and
(3) Automobile liability insurance with limits of liability not less
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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
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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
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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
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insurance policies shall be grounds for the City's immediate termination of this
Franchise.
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Section 34: Independent Contractors.
This Franchise shall not be construed to provide that the Operator is the
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agent or legal representative of the City for any purpose whatsoever. The
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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
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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
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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
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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
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effect.
D.
Assianment. Operator shall not have the right to transfer or
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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
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(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
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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
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G.
GoverninQ Law. This Franchise shall be made in and shall be
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governed by and interpreted in accordance with the laws of the State of
Washington.
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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
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the City.
I.
~. Any notices required to be given by the City to Operator
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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
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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
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due to circumstances beyond the Operator's control or acts of God, shall not be
deemed non-compliance or a violation of this Agreement.
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Section 38: Severability.
The provisions of this Ordinance are declared separate and severable.
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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"
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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
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8
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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
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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