Ord 96-264
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ORDINANCE NO. 96-264
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
FEDERAL WAY, WASHINGTON, GRANTING A NONEXCLUSIVE
CABLE FRANCHISE TO TCI OF AUBURN, INC. AND PROVIQING
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.
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WHEREAS, pursuant to RCW 35A.11.030, the City of Federal Way has
the power, among other things, to grant franchises; and
WHEREAS, on August 1, 1995 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 apply
uniformly to this franchise as well as to all cable franchises in the City of
Federal Way; and
WHEREAS, prior to the effective date of incorporation of the City of
Federal Way, King County granted a non-exclusive cable communication
system franchise to, amongst other entities, TCI of Auburn, Inc., a Washington
corporation (hereinafter "TCI"), and its predecessor companies, by King County
Ordinances No. 978, and motions and amendments related thereto and
Franchise No. 547 and amendments thereto (collectively, the "TCI Franchise");
and
WHEREAS, the TCI Franchise as granted by King County to TCI expired
on September 6, 1991; and
WHEREAS, by Ordinance No. 93-162, the City of Federal Way granted
an extension of the TCI Franchise through February 14, 1994, and by
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Ordinance No. 94-205 granted an extension until February 14, 1995, and by
Ordinance No. 95-228 granted an extension until April 14, 1995; and
WHE:RE:AS, the City and TCI have met and negotiated non-exclusive
franchise terms; and
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WHEREAS, the Finance and Economic Development Council
Committee met and considered this ordinance on January 25, 1996 and
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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
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February 6, 1996 at its regularly scheduled meeting; and
WHEREAS, the full City Council considered this ordinance on February
20, 1996 at a public hearing; and
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 # 96-264, Page 1-A
Section
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:
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Section 19:
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Section 23:
TABLE OF CONTENTS
Page
Relation To Master Ordinance .........................................................4
Purpose................................................................................................4
Grant of Franchise..............................................................:...............5
Length of Franchise ...........................................................................5
Application...........................................................................................5
Franchise Area....................................................................................5
Franchise Fee .................................................................................5-7
A. Late Payment.................................................................................6
B. Financial Reports...........................................................................6
C. Audit by City............................................................................... 6, 7
D. Non-waiver.....................................................................................7
E. Taxes................................................................................................7
Technical Standards..................................................................... 7, 8
Technical Evaluation .................................................................... 8, 9
Potential Reimbursement of Relocation Costs..............................9
Building Moving Indemnification .....................................................9
,Reports..........................................................................................9 10
Periodic Meetings............................................................................ 10
Customer Service...................................................................... 1 0, 11
Telephone Response ...............................................................11, 12
Failure to Improve Customer Service.......................................... 12
Refunds for Outages ....................................................................... 12
Termination of Subscriber Service .~......................................12, 13
Future Provisions............................................................................. 13
A. Upgrade........................................................................................ 13
B. Other Services.......................................................................13, 14
Emergency Override....................................................................... 14
Access Channels....................................................................... 14-16
A. Government Access ................................................................... 15
B. Public Access .............................................................................. 15
C. Educational Access.................................................................... 15
Access Broadcasting Equipment.................................................. 16
Public Buildings............................................................................... 16
Ordinance # 96-264, Page 2
Section
Section 24:
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:
Section 41:
Section 42:
Section 43:
TABLE OF CONTENTS
Page
Institutional Networks (I-Nets) .................................................16, 17
City-wide Institutional Network Interconnection......................... 17
Procedure for Implementation of PEG Access
Equipment...........................................................................:............17
Coverage ....................................................................................17, 18
Discounts ..........................................................................................18
Cable Availability............................................................................. 18
Extraordinary Installation Charges.........................................18, 19
Theft of Service ................................................................................ 19
Penalties .....................................................................................19-21
Franchising Costs............................................................................ 21
Extemal Franchising Costs............................................................ 21
Performance Bond .......................................................................... 22
Insurance """"""""""""""""""""""""""'".............................22, 23
A. Minimum Limits .....................................................................22, 23
B. Mandatory Insurance Provisions ............................................. 23
C. Verification of Coverage............................................................ 23
Independent Contractors ............................................................... 24
Acceptance.......................................................................................24
General Provisions.......................................................................... 24
A. Entire Agreement....................................................................... 24
B. Modification ................................................................................24
C. Full Force and Effect ................................................................. 24
D. Assignment...........................................................................24, 25
E. Attorney Fees ............................................................................. 25
F. No Waiver ................................................................................... 25
G. Goveming Law........................................................................... 25
H. Authority...................................................................................... 25
I. Notices...................................................................................25, 26
J. Captions......................................................................................26
K. Time of Essence ........................................................................ 26
L. Remedies Cumulative .............................................................. 26
Force Majeure ..................................................................................26
Severability.................................................................................26, 27
Ratification ........................................................................................27
Effective Date ...................................................................................27
Ordinance # 96-264, Page 3
TABLE OF CONTENTS
APPENDICES
Appendix A......................................................... Educational Access Equipment List
Appendix B.........................................................Government Access Equiþment List
Appendix C ..................................................Access and I-Net Interconnection Point
Appendix D ........................................................................Educational Drop Location
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Section 1: Relation To Master Ordinance.
The provisions and the definitions of terms contained in the Master
Ordinance adopted by the Federal Way City Council on August 1, .1995 (the
"Ordinance") shall apply to this Franchise Agreement as if fully set forth in the
Franchise Agreement, provided that, in the event of a conflict between the
provisions of the Ordinance and the Franchise Agreement, the express
provisions of the 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 Ordinance, 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: PurDose.
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 TCI of Auburn, Inc., a
Washington corporation (hereinafter the "Operator"). The Operator promises to
construct, maintain, and operate a cable television system for the distribution of
cable television 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 television 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 retrain in, on, over, under, upon across and along t.he 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: Length of Franchise.
The length of this Franchise shall be for a term of ten (10) years
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commencing on March 21, 1996 and terminating at midnight on March 20,
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2006.
Section 5: ADplication.
The Operator shall submit an application on applicable forms and
furnish a non-refundable filing fee of Five Thousand Dollars ($5,000.00) which
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
Ordinance. 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. Inasmuch as this Franchise is granted
solely for the operation of a cable television system, revenues from telephony
and data transmission are not to be included as gross receipts, but will be the
concem of a separate franchise if and when the Operator may apply for same.
The City may modify the franchise fee if so permitted by federal and
state law. Prior to implementation of any modification in franchise fees the
Operator may request a public hearing by the City Council to discuss said
modification. Following such a hearing the City Council may require the
implementation of such modification in accordance with the provisions of this
Ordinance.
A.
Late Payment. Any quarterly franchise fee not paid by the
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
the maximum amount allowed under State law, whichever is greater.
B.
Financial Reports.
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
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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
Operator's office(s). In the event that such audit discloses a discrepancy of
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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
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
Taxes.
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.
2.
Applicable City, state and national/federal codes and ordinances;
Applicable Utility Joint Attachment Practices;
3.
The National Electric Safety Code; ANSI C2;
4. City Utility Code Requirements;
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5.
6.
City rights-of-way procedures;
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 r~gulations,
may, at its option, monitor the taking of such tests. Upon request the Operator
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shall in any event provide a copy of the results of the system evaluation to the
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
regulations, the City may notify the Operator of its concerns regarding the
technical performance of the cable television system. The Operator then shall
take all 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
retain an independent consultant to conduct an analysis of the cable system
and its performance and submit a report of such analysis to the City. The City
shall take into consideration any efforts taken to correct such deficiencies.
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;
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4. The method, if any, by which specific performance problems may
be resolved; and
5. Any other information pertinent to said tests and analyses which
may be required by the City.
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If the tests indicate that the system is not in material compliance with
FCC standards or the requirements of the Franchise, the Ordinance or other
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applicable law, the Operator shall reimburse the City for any costs involved in
conducting such tests, such as consultant fees or other expenses.
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Section 10: Potential Reimbursement of Relocation Costs.
In the event that the Operator may be required to move or relocate its
facilities in accordance with Section 8: Construction Standards of the Master
Ordinance and other sources of funding such as Local Improvement District
(LID) or other grants are available to the City, the Operator shall be
proportionally reimbursed from these funds.
Section 11: Building Moving Indemnification
In those situations wherein the Operator may be required under Section
12: Building Moving of the Master Ordinance to temporarily move its lines or
poles it shall be indemnified and held harmless by the permittee from any and
all damages or claims of whatsoever kind or nature caused directly or indirectly
from this action except to the extent such damages or claims are a result of the
Operator's negligent action. The Operator may also require payment in
advance from the permittee.
Section 12: Reports.
The Operator shall furnish, upon request, a report of its activities as
appropriate. Such report shall include the following:
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;
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4.
5.
The number of Subscribers with basic services;
The number of Subscribers with expanded basic services;
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6.
7.
The number of Subscribers with premium services;
The number of Subscribers with addressable services;
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8.
The number of hook-ups in the reporting period;
The number of disconnects in the reporting period;
9.
10. 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;
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12. Copies of all FCC complaint logs;
13. A statement of its current billing practices, and a sample copy of the
bill format;
14. A current copy of its Subscriber service contract;
15. A current copy of its cable rate sheet delivered to Subscribers; and
16. Report on operations - Such other reports that may be appropriate
under State and Federal law and for which data is available.
Section 13: Periodic Meetings.
Upon request, the Operator shall meet with designated City officials
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,
those items covered in the periodic reports and performance tests.
Section 14: 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,
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which standards are incorporated into this Franchise by reference ("FCC
Customer Service Standards"). The City, and the Operator may, however,
agree upon more stringent standards in accordance with Section 632 (c) of the
Act.
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Section 15: TeleDhone Response.
In order that the City may be informed of the Operator's success in
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achieving satisfactory customer relations in its telephone answering functions,
the Operator shall, upon request by the City, and routinely no less than
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quarterly, provide the City with a summary 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;
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Average hold time;
Percentage of time all lines are busy; and
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An explanation of any abnormalities.
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
be specific to the City alone. At the time that Reports (Section 12) are required,
the Operator shall furnish an updated status report of progress made to this
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).
This data will be compared to minimum standards of the FCC Customer
Service Standards.
Ordinance # 96-264, Page 12
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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
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 16: Failure to Improve 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
stated therein. The Operator's Corporate office, if appropriate, shall be advised
of the City's findings.
Section 17: Refunds for Outages.
No charge for the period of an outage shall be made to the Subscriber if
the Operator has knowledge that the Subscriber was without service for a
period exceeding twenty-four (24) hours.
Section 18: Termination of Subscriber Service.
Upon termination of any Subscriber, and upon Subscriber's request the
Operator shall promptly remove from the Subscriber's premises, all of its
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
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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
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advised of the date by which the equipment must be returned before a charge
may be imposed for failure to return equipment.
Section 19: Future Provisions.
A.
Ucorade. The Operator shall complete the upgrading of the
cable television system to a minimum of seventy (70) channel capacity no later
than forty-eight (48) months from the effective date of this Franchise. In the
event that such project encounters unforseeable delays, the City will be fully
informed of such facts and the Operator may request an extension to such
completion date.
B.
Other Services. Because of the quickening pace of electronic
communication development it is essential that the City be provided with such
new features when they become technologically and economically feasible.
While such potential services are too numerous to enumerate, they include, but
without limitation, computer interaction, interactive video on demand,
interactive shopping, Video Dial Tone (VDT) and similar developments.
Recognizing that these types of services are not generally available at the
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
made available to the City within twelve (12) months upon one or more of the
following occurrences:
1.
Forty percent (40%) of other franchising authorities in the King-
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Pierce-Snohomish County area in Washington state have been
furnished such services.
2.
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 20: Emergency Override.
The Operator shall be in compliance by no later than the date mandated
with FCC Regulations requiring installation of an Emergency Alert System
(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
notifying viewers and listeners of an emergency. Subject to federal and state
laws and regional planning authorities, the City may preempt the operation of
the system at any time during an emergency. The City, at its option may elect
to share this service with adjoining communities.
Section 21: Access Channels.
In order to provide uniform reception of Public, Education and
Government (PEG) access channels by all residents of the City, the Operator,
upon request by the City Council, will make the required interconnection with
Viacom in accordance with the following schedule:
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A. Government Access. One (1) channel capable of cablecasting
character generated, taped, or live programming within twelve (12) months
following the effective date of this Franchise.
B. Public Access. One (1) channel within twenty-four (24) months of
the execution of the Franchise or twelve (12) months following the upgrade,
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whichever is the earlier.
C.
Educational Access. One (1) channel within twenty-four (24)
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months from the effective date of this Franchise or twelve (12) months following
an upgrade, 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.
Notwithstanding the above, the City may elect initially to share Public,
Educational and Government (PEG) access channels with other jurisdictions
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
solely at the discretion of the City.
Additional channels over and above these shall be made available
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
consecutive ten (10) week period. Commercial, Public Broadcast Service
(PBS), programs and character generated programming are not included as
part of the criteria to determine additional channel usage. Programming on
additional channel(s) shall be distinct and non-repetitive of the previous
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
within six (6) months of such request.
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Section 22: Access Broadcasting Eauipment.
Upon request by the City Council, the City shall require the equipment,
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or its equivalent, listed in Appendix "82". However, prior to that time and within
sixty (60) days subsequent to the completion of the channel upgrad~, the City
shall be furnished by the Operator with electronic message board equipment,
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or its equivalent, as specified in Appendix "81". In order to furnish this
equipment, upon request of the City Council, the Operator shall pay to the City
the following amounts proportionate to the number of subscribers in
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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-
Twenty Thousand Dollars ($20,000).
2. On or after eight (8) years from the effective date of this Franchise-
Five Thousand Dollars ($5,000.00).
Section 23: Public Buildings.
The Operator shall provide basic service without charge for installation
or monthly rate to all public buildings and schools including without limitation,
those specified in Appendix "D" as well as other such buildings that may be
constructed during the period of the Franchise.
Section 24: Institutional Networks (I-Nets).
Upon City Council's request, all public buildings shall be provided with
a private communications network outside of the Subscriber system. This
closed system shall be capable of upstream and downstream transmission and
may use any technically suitable method (e.g. hardline, microwave with
scramblers/descramblers, etc.) selected by the Operator. New buildings
constructed subsequent to the date of this Franchise shall likewise be
furnished the same capability providing they meet the trunk and distribution
Ordinance # 96-264, Page 17
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line requirements.
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Nothing contained in this Franchise shall obligate the Operator to provide
any service that would, by virtue of the provision of such service, require the
Operator to become a common carrier.
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Section 25: City-wide Institutional Network Interconnection.
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In order to provide a uniform communications system throughout the
City, the Operators shall provide interconnection of I-Nets as appropriate. The
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map shown as Appendix "C" indicates a suggested interconnection point. The
sharing of costs of such interconnection will be left to the individual Operators.
Section 26:
Procedures for Implementation of PEG Access
Equipment
Because both the dynamics of the cable industry and the perceived
application of these features may change, the City may elect to defer the
implementation of the access equipment described in the appendices until a
more appropriate time. The City and the Operator therefore agree to meet at
intervals of no less than annually to review this subject. At that time the City
may require proportionate monies from the Operator to purchase the types of
equipment indicated and the Operator shall immediately pay such funds to the
City upon its request. The parties acknowledge that such capital costs shall
pass through costs to Subscribers as provided in 47CFR§ 76.922 or as
amended.
Section 27: Coverage.
Subject to the density considerations in Section 29: Cable Availability, the
City shall be provided with cable television 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 twelve
(12) months from the grant of the Franchise. Areas subsequently annexed
Ordinance # 96-264, Page 18
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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
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to an unbuilt area, the Operator with the nearest trunk and/or distribution line
will be responsible to provide the required cable service.
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Section 28: Discounts.
The Operator shall offer a discount of thirty percent (30%) from the
normal charge for basic services and installation to those individuals age sixty-
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two (62) or older or disabled who are the legal owner or lessee/tenant of their
residence provided that their combined disposable income from all sources
does not exceed the Poverty' Income ,guidelines of the Housing and Urban
Development ("HUD") standards for the Seattle-Everett area for the preceding
calendar year.
The City or its designee shall be responsible for certifying to the Operator
that such applicants conform to the specified criteria.
Section 29: Cable Availability.
Cable service shall be available to all residents within the City provided
there are at least thirty-five (35) dwelling units per street mile. Cable service
shall not be denied to any group of potential residential cable Subscribers
because of the income of the residents of the local area in which such group
resides.
Section 30: Extraordinary Installation Charges.
All residents requesting cable service and living within one hundred fifty
(150) feet of existing cable distribution or trunk lines shall have the cable
installed at the prevailing published installation rate. Underground services
shall be furnished on a time and material basis.
In the event a request is made for service and the residence is more
Ordinance # 96-264, Page 19
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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 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
actual construction costs. In such instance, upon request, the Operator shall
make a pro-rata refund if and when additional dwellings are serviced by the
same distribution line.
Section 31: Theft of Service
In addition to those criminal and civil remedies provided by state and
federal law, it shall be a misdemeanor for any person, firm, or corporation to
create or make use of any unauthorized connection, whether physically,
electrically, acoustically, inductively, or otherwise, with any part of the System
without the express written consent of the Operator. Further, without the
express written consent of the Operator, it shall be a misdemeanor for any
person to tamper with, remove, or injure any property, equipment, or part of the
System or any means of receiving services provided thereto.
Subject to
applicable federal and state law, the Franchising Authority shall incorporate
into its criminal code, if not presently a part thereof, .criminal misdemeanor law
which will enforce the intent of this section.
Section 32: Penalties.
The City shall notify the Operator in writing stating the nature of a
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
Operator will be allowed to rectify such alleged improper condition. The
Operator may request an extension of time if construction is suspended or
Ordinance # 96-264, Page 20
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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
circumstances which are reasonably beyond the control of the Operator delay
progress, provided that the Operator has not, through its own ~ctions 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 Ordinance.
Monetary penalties may be assessed for any Franchise, Ordinance, or
other violation including, without limitation:
1.
Failure to conform to customer service standards as required by,
Section 14: Customer Service.
2.
Upgrade and features as required by Section 19: Future
Provisions.
3.
PEG access channel allocations as required by Section 21:
Access Channels.
4.
Public access facilities as required by Section 22: Access
Broadcasting Equipment.
5.
Funds for access equipment as required by Section 22: Access
Broadcasting Equicment.
Ordinance # 96-264, Page 21
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Institutional network activation as required by Section 24:
Institutional Networks (I-Nets).
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Coverage of existing and future annexed areas as r~quired by
Section 27: Coverage.
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Monetary penalties may be assessed retroactive to the date that
notification was provided to the Operator in such cases where the Operator has
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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 33: Franchisin9 Costs
The Operator shall pay to the City upon acceptance of any initial franchise
or renewal franchise granted hereunder, the City's out-of-pocket costs
associated with the franchising process. Costs shall include such items as
consulting fees, expenses, and the costs of publishing notices and ordinances,
etc. Such payment is not to be considered in lieu of franchise fee payments.
Payment is due within thirty (30) days of receipt of appropriate invoice from the
City.
Section 34: External Franchising 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
franchise related requirement if, in the City's opinion, the increase in rates
would be a burden on subscribers.
Ordinance # 96-264, Page 22
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Section 35: Performance Bond,
A franchisee shall promptly repair or cause to be repaired any damage to
City property caused by a franchisee or any agent of a franchisee. A
franchisee shall comply with all present and future ordinances and ~egulations
regarding excavation or construction and, if deemed necessary by the City,
shall be required to post a performance bond or other surety acceptable to the
City in an amount specified by the City in favor of the City warranting that all
restoration work will be done promptly and in a workmanlike manner and that
penalties, if any, after final adjudication are paid to the City within ninety (90)
days of such finding.
Section 36: 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):
(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)
for bodily injury, including personal injury or death, products liability,
contractual coverage, operations, explosion, collapse, underground and
property damage coverage; and
(3) Automobile liability insurance with limits of liability not less
than $1,000,000 each occurrence for bodily injury, including death and
Ordinance # 96-264, Page 23
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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 Coverage. Operator shall furnish the City with
certificates of insurance and original endorsements evidencing the coverages
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
received and approved by the City prior to the commencement of any work. At
the City's request, Operator shall deliver certificates of insurance of all required
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
insurance policies shall be grounds for the City's immediate termination of this
Franchise.
Ordinance # 96-264, Page 24
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Section 37: IndeDendent Contractors.
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This Franchise shall not be construed to provide that the Operator is the
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.
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Section 38: Acceptance.
This grant of Franchise and its terms and provisions shall be accepted
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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 39: General Provisions.
A.
Entire Agreement. This Franchise contains all of the agreements
of the Parties with respect to any matter covered or mentioned in this Franchise
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
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
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
effect.
D.
Assignment. Operator shall not have the right to transfer or
assign, in whole or in part, any or all of its obligations and rights hereunder
Ordinance # 96-264, Page 25
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without the prior written consent of the City. Any assignee shall, within thirty
(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
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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
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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
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declare one breach or default does not act as a waiver of the City's right to
declare another breach or default.
G.
Governing Law. This Franchise shall be made in and shall be
governed by and interpreted in accordance with the laws of the State of
Washington.
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
the City.
I.
Notices. Any notices required to be given by the City to Operator
or by Operator to the City shall be delivered to the parties at the following
addresses:
Ordinance # 96-264, Page 26
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Operator:
TCI of Auburn, Inc.
General Manager
4020 Auburn Way N.
Auburn, WA 98002
City:
City Manager
City of Federal Way
33530 1 st 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
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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.
However, the City will not simultaneously collect penalties under Section 28:
Penalties and payment under Section 30: Performance Bond.
Section 40: Force Majeure
Prevention or delay of any performance under this Franchise Agreement
due to circumstances beyond the Operator's control or acts of God, shall not be
deemed non-compliance or a violation of this Agreement.
Section 41: Severability.
The provisions of this ordinance are declared separate and severable.
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 the
Ordinance # 96-264, Page 27
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11 CITY OF FEDERAL WAY
13 j) ~
; ; fv MA~:HLON S. PRIEST
17~ n'A L
~~ I~.~-(¥~--
: : :~E::R~ N. é~RISTINE GREEN, CMC
21
2 2 APPROVED AS TO FORM:
~~~~
: ~"fuONDI K. LINDELL
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ordinance, or the validity of its application to other persons or circumstances.
Section 42: Ratification.
Any act consistent with the authority and prior to the effective date of this
ordinance is hereby ratified and affirmed.
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Section 43: Effective Date.
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This Ordinance shall take effect and be in full force thirty (30) days after
its passage, according to law.
PASSED by the City Council of the City of Federal Way this ;(j)
daYOf~t ,19gjp
.....,
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE
01/30/96
02/20/96
02/24/96
03/21/96
Ordinance # 96-264, Page 28
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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
Ordinance # 96-264, Page 29
,1996.
TCI OF AUBURN, INC.
By:
Its:
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TO
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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, subject to awlic:able federal, sr..ate and local law.
DATED this 5' day of ~c-J../ ,1996.
TCI OF AUBURN, INC.
By:
~~.~1
President
Its:
STATE OF WASHINGTON
)
)SS
)
COUNTY OF KING
On 1(-5- (fG before me, a Notary Public in and for said State,
personally appeared David M. Reynolds, known to me to be the President of the
corporation that executed the within Instrument, known to me to be the person who
executed the within Instrument on behalf of the corporation therein named as
OPERATOR. and acknowledged to me that such corporation executed the within
Instrument pursuant to its by-laws or a resolution of its board of directors.
WITNESS my hand and official seal.
n L. Turpen, Notary P lic
I nd for the State of Washington
Residing at: Bellevue, WA
My Commission Expires: May 20, 1996
Ordinance # 96-264, Page 29
" Federal Way Franchise Ordinance-Viacom
Ouantitv
1
1
1
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Message Channel Equipment List
Description of Item
Panasonic AG-7150-S-VHS Player
Panasonic AG-735Q-S-VHS Player/Recorder
Panasonic AG-513A-VHS TVNCR
Texscan MSI 4000-Character Generator
Appendix A
" federal Way Franchise Ordinance-Viacom
Quantity
3
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8
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2
2
Production Equipment List
Appendix B
Description 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 CCDC-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-omni Microphone
, .;, :Federal Way Franchise Ordinance-Viacom
Appendix C
(
Access and I-Net Interconnection Point
t
I
EXISTING TCI/VIACOM
FRANCHISE BOUNDARIES
CITY LIMITS
-----------
X-Interconnection Point
ACCESS V>:TERCO1\:1\:ECT ROUTE' . . . . . . .
. J;'ederal Way Franchise Ordinance-Viacom
. ',¡ .
(
Appendix D
Educational Drop Locations
Public Schools Admin.
3140518th South
Adelaide Elementary
1635 SW 304th
Brigadoon Elementary
3601 SW 336th
Decatur High School
2800 SW 320th
Federal Way High School
30611 16th South
Head Start Program
625 South 314th
Iliahee 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 SW3?Oth
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
3391419th 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
Federal Way Police
34004 Ninth Avenue South
Steel Lake Parks & Recreation
Steel Lake Maintenance Fac.
31132 28th Avenue South
Steel Lake Annex
2645 South 312th
Federal Way Water & Sewer
Main Office/Admin.
31627 First Avenue South
Federal Way Water & Sewer
Water Operations Building
31623 First Avenue South
Federal Way Water & Sewer
Lakota Treatment Plant
3045 SW Dash Point Road
library
848 South 320th
library
34210 First Way South
Federal Way District Court
33506 10th Place South
South King County
Multiservice Center
1200 South 336th
West Way Community Center
33400 21st SW
Fire Station
31617 First Avenue South
Fire Station
33414 21st Avenue SW
Fire Station
1405 SW 312th
Visitation Retreat Center
3200 SW Dash Point Rd.
I, t-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 I:'oint Road
8.
Federal Way District Court
33506 10th Place South
9.
South King County
Multiservice Center
1200 South 336th
10. West Way Community Center
33400 21st 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~
(Squares indicate locations of SChO~IS
to be included in the I-Net)
EXISTING TCI/VIACOM
FRANCHISE BOUNDARIES
2..'1
CITY LIMITS
-----------
~~~
I.
Tota] Municipal I-Net 17.3 miles
, :' (federal Way Franchise Ordinance-Viacom
Appendix G
Educationa/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
33914 19th 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
I,) ;
Federal Way Franchise Ordinance-Viacom
Appendix G
Educational I-Net Mall
(Circles indicate lòcations of schools'
to be included in the I-Net)
EXISTING TCI/VIACOM
FRANCHISE BOUNDARIES
CITY LIMITS
-----------
z~
~~
Total Educational )~N"t 24.1 miles