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City of Everett, WA, Ordinance No. 2613
Not an official copy.
City of Everett, Washington
Ordinance No. 2613
Passed 6/5/02
An Ordinance Granting a Cable Television Franchise to Everett Cablevision,
Inc., also known as AT&T Broadband
RECITALS
WHEREAS, the City of Everett ("City") is authorized to grant and renew franchises
for the installation, operation and maintenance of cable television systems
within the City; and
WHEREAS, the City granted Everett Cablevision, Inc., a Washington corporation
doing business as Viacom Cablevision, a franchise to provide cable television
services in the City in Ordinance no. 1140-85; and
WHEREAS, the City approved the assignment and transfer of the franchise to
an investor group led by Viacom's senior management on December 10, 1986 by
Resolution no. 2793; and
WHEREAS, the City consented to the merger of Telecommunications, Inc. ("TCI"),
the corporate parent of Viacom, with AT&T Corp. by Resolution 4686 on
November 18, 1998; and
WHEREAS, the franchise was extended by Ordinance 2516-01 and by Ordinance
2558-01; and
WHEREAS, the current franchise expires on July 10, 2002; and
WHEREAS, Everett Cablevision, Inc., also known as AT&T Broadband (the
"Grantee"), applied to the City for the renewal of its cable television franchise
to construct, operate and maintain a cable television system within the City;
and
WHEREAS, the Grantee is willing to accept this Franchise subject to the terms
and conditions stated herein, and to abide by these terms and conditions;
and
WHEREAS, the public has had adequate notice and opportunity to comment on
the Grantee's proposal to provide cable television service within the City;
and
WHEREAS, the City Council hereby finds that it would serve the public interest
of the citizens of the City to grant a new cable television franchise to the
Grantee subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, THE CITY OF EVERETT DOES ORDAIN:
SECTION 1. DEFINITIONS
For the purposes of this Ordinance, the following terms, phrases, words and
their derivations shall have the meaning given herein. When not inconsistent
with the context, words used in the present tense include the future, words
in the plural include the singular, and words in the singular include the
plural. Words not defined shall be given their common and ordinary meaning.
The word "shall" is always mandatory and not merely directory.
1.1 "Access" means the availability for noncommercial use by various
agencies, institutions, organizations, groups and individuals in the community,
including the City and its designees, of the Cable System to acquire, create,
receive, and distribute Cable Services as permitted under applicable law including,
but not limited to:
a. "Educational Access" means Access where schools are the primary
users having editorial control over programming and services.
b. "Government Access" means Access where governmental institutions
or their designees are the primary users having editorial control over programming
and services.
1.2 "Access Channel" means any Channel, or portion thereof, designated
for Access purposes or otherwise made available to facilitate or transmit Access
programming or services.
1.3 "Activated" means the status of any capacity or part of the Cable
System in which any Cable Service requiring the use of that capacity or part
is available without further installation of system equipment, whether hardware
or software, other than subscriber premises equipment.
1.4 "Affiliate," when used in connection with Grantee, means any Person
who owns or controls, is owned or controlled by, or is under common ownership
or control with Grantee.
1.5 "Bad Debt" means amounts lawfully billed to a Subscriber and owed
by the Subscriber for Cable Service and accrued as revenues on the books of
Grantee, but not collected after reasonable efforts have been made by Grantee
to collect the charges.
1.6 "Basic Service" means the Cable Service Tier which includes, at
a minimum, the retransmission of local television Broadcast Signals and Access
Channels.
1.7 "Broadcast Signal" means a television or radio signal transmitted
over the air to a wide geographic audience, and received by a Cable System by
antenna, microwave, satellite dishes or any other means.
1.8 "Cable Act" means the Cable Communications Policy Act of 1984 as
amended by the Cable Television Consumer Protection and Competition Act of 1992
and the Telecommunications Act of 1996, as any of them may be amended.
1.9 "Cable Internet Service" means any service offered by Grantee whereby
Persons receive access to the Internet through the Cable System.
1.10 "Cable Operator" means any person or groups of persons, including
Grantee, who provide(s) Cable Service over a Cable System and directly or through
one or more affiliates owns a significant interest in such Cable System or who
otherwise control(s) or is (are) responsible for, through any arrangement, the
management and operation of such a Cable System.
1.11 "Cable Service" means the one-way transmission to Subscribers of
video programming or other programming service, and Subscriber interaction,
if any, which is required for the selection or use of such video programming
or other programming service.
1.12 "Cable System" means any facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control
equipment that is designed to provide Cable Service which includes video programming
and which is provided to multiple Subscribers within a community, but such term
does not include (A) a facility that serves only to retransmit the television
signals of one or more television broadcast stations; (B) a facility that serves
Subscribers without using any public Right-of-Way; (C) a facility of a common
carrier which is subject, in whole or in part, to the provisions of Title II
of the federal Communications Act (47 U.S.C. 201 et seq.), except that such
facility shall be considered a Cable System (other than for purposes of Section
621(c) (47 U.S.C. 541(c)) to the extent such facility is used in the transmission
of video programming directly to Subscribers, unless the extent of such use
is solely to provide interactive on-demand services; (D) an open video system
that complies with federal statutes; or (E) any facilities of any electric utility
used solely for operating its electric utility systems. As used herein, the
term Cable System shall mean Grantee's cable communications facilities located
in the City.
1.13 "Channel" means a portion of the electromagnetic frequency spectrum
which is used in the Cable System and which is capable of delivering a television
channel (for example, in an analog or digital format).
1.14 "City" is the City of Everett, Washington, a body politic and corporate
under the laws of the State of Washington, and all of the area within its boundaries,
as such may change from time to time.
1.15 "City Council" means the Everett City Council, or its successor,
the governing body of the City of Everett.
1.16 "Commercial Subscribers" means any Subscribers other than Residential
Subscribers.
1.17 "Designated Access Provider" means the entity or entities designated
now or in the future by the City to manage or co-manage Access Channels and
facilities. The City may be a Designated Access Provider.
1.18 "Downstream" means carrying a transmission from the Headend to
remote points on the Cable System.
1.19 "Dwelling Unit" means any building, or portion thereof, that has
independent living facilities, including provisions for cooking, sanitation
and sleeping, and that is designed for residential occupancy.
1.20 "Expanded Basic Service" means the Tier of optional video programming
services, which is the level of Cable Service received by most Subscribers above
Basic Service, and does not include Premium Services.
1.21 "FCC" means the Federal Communications Commission.
1.22 "Fiber Optic" means a transmission medium of optical fiber cable,
along with all associated electronics and equipment, capable of carrying Cable
Service or Institutional Network service by means of electric lightwave impulses.
1.23 "Franchise" means the document in which this definition appears,
i.e., this Ordinance and, upon the written unconditional and acknowledged
acceptance by Grantee, a contractual agreement, executed between the City and
Grantee, containing the specific provisions of the authorization granted, including
references, specifications, requirements and other related matters.
1.24 "Franchise Area" means the area within the jurisdictional boundaries
of the City, including any areas annexed by the City during the term of this
Franchise.
1.25 "Fully Allocated Costs" means the City's proportionate share of
all direct and actual material and labor costs (excluding profit) of constructing,
relocating or placing additional ducts, conduit or related structures by Grantee
for the City alongside or together with ducts, conduit or structures by and
for Grantee.
1.26 "Grantee" means Everett Cablevision, Inc., or its lawful successor,
transferee or assignee.
1.27 "Gross Revenues" means any and all revenue derived by the Grantee
or its Affiliates from the operation of the Grantee's Cable System to provide
Cable Services in the City. Gross Revenues include, by way of illustration and
not limitation, monthly fees charged Subscribers for Basic and Expanded Basic
Service; any other Tiers of Cable Service; Premium Services; installation, disconnection,
reconnection and change-in-service fees; Leased Access Channel fees; remote
control rental fees; all Cable Service lease payments from the Cable System;
late fees and administrative fees; fees, payments or other consideration received
by the Grantee from programmers for carriage of programming on the Cable System
and recognized as revenue under generally accepted accounting principles ("GAAP");
revenues from rentals of converters or other Cable System equipment; advertising
sales revenues; the fair market value of consideration in accordance with GAAP
that is received by the Grantee for use of the Cable System to provide Cable
Service; revenues from program guides; revenue from data transmissions to the
extent these transmissions are considered Cable Services under federal law or
under State law if so authorized by federal law; additional outlet fees; revenue
from Cable Internet Service to the extent this service is considered a Cable
Service under federal law or under State law if so authorized by federal law;
franchise fees; revenue from interactive services to the extent they are considered
Cable Services under federal law or under State law if so authorized by federal
law; revenue from the sale or carriage of other Cable Services; and revenue
from home shopping and other revenue-sharing arrangements. Gross Revenues shall
include revenue received by any entity other than the Grantee where necessary
to prevent evasion or avoidance of the obligation under this Franchise to pay
the franchise fees. Gross Revenues shall not include (i) the initial Capital
Contribution specified in SECTION
9. ACCESS; (ii) Bad Debt; provided, however, that all or part of any such
Bad Debt that is written off but subsequently collected shall be included in
Gross Revenues in the period collected; or (iii) any taxes on services furnished
by the Grantee which are imposed directly on any Subscriber or user by the State,
City or other governmental unit and which are collected by the Grantee on behalf
of said governmental unit. The franchise fees are not such a tax and are therefore
included in the Gross Revenue calculation.
1.28 "Headend" means any facility for signal reception and dissemination
on a Cable System, including cables, antennas, wires, satellite dishes, monitors,
switchers, modulators and all other related equipment and facilities.
1.29 "Hub" means an intermediary exchange point in the signal distribution
portion of the Cable System, located between the Headend and the Nodes.
1.30 "Incremental Costs" means the direct and actual material and labor
cost (excluding profit) of constructing, relocating or placing additional ducts,
conduit or related structures by Grantee for the City, excluding the costs of
design, trenching, boring, pipe bedding, backfilling, compacting, restoring
the surface, and other charges, costs or expenses that Grantee would incur anyway
to construct, relocate or place its own ducts, conduit or related structures.
1.31 "Institutional Network" or "I-Net" means that part of the
Cable System facilities or capacity designated for non-commercial communications
to, from and among government agencies, schools, libraries and other public
agencies.
1.32 "Interconnect" or "Interconnection" means the linking of
the Cable System's Access Channels with the access channels of another geographically
contiguous cable system, including technical, engineering, physical, financial
and other necessary components to accomplish, complete and adequately maintain
such linking, in a manner that permits the transmission and receiving of Access
programming between the Cable System and other cable systems.
1.33 "Leased Access Channel" means any Channel or portion of a Channel
commercially available for programming by Persons other than Grantee, for a
fee or charge.
1.34 "Node" means an exchange point in the signal distribution system
portion of the Cable System, where in the case of the Subscriber Network, optical
signals are converted to RF signals.
1.35 "Person" means any individual, sole proprietorship, partnership,
association, or corporation, or any other form of entity or organization.
1.36 "Premium Service" means programming choices (such as movie Channels,
pay-per-view programs, or video on demand) offered to Subscribers on a per-Channel,
per-program or per-event basis.
1.37 "Residential Subscriber" means any Person who receives Cable Service
delivered to Dwelling Units or Multiple Dwelling Units.
1.38 "Right-of-Way" means each of the following which have been dedicated
to the public or are hereafter dedicated to the public and maintained under
public authority or by others and located within the City: streets, roadways,
highways, avenues, lanes, alleys, bridges, sidewalks, easements, rights-of-way
and similar public property and areas.
1.39 "School" means any State-accredited K-12 educational institution,
public or private.
1.40 "State" means the State of Washington.
1.41 "Subscriber" means any Person who or which elects to subscribe
to, for any purpose, Cable Service provided by Grantee by means of or in connection
with the Cable System and whose premises are physically wired and lawfully Activated
to receive Cable Service from Grantee's Cable System.
1.42 "Subscriber Network" means that portion of the Cable System used
primarily by Grantee in the transmission of Cable Services to Residential Subscribers.
1.43 "Telecommunications" means the transmission, between or among points
specified by the user, of information of the user's choosing, without change
in the form or content of the information as sent and received (as provided
in 47 U.S.C. 153(43)).
1.44 "Telecommunications Service" means the offering of Telecommunications
for a fee directly to the public, or to such classes of users as to be effectively
available directly to the public, regardless of the facilities used (as provided
in 47 U.S.C. 153(46)).
1.45 "Tier" means a group of Channels for which a periodic subscription
fee is charged.
1.46 "Two-Way" means that the Cable System is capable of providing both
Upstream and Downstream transmissions.
1.47 "Upgrade" means improvements and additions to the Cable System,
as specifically described in this Franchise.
1.48 "Upstream" means carrying a transmission to the Headend from remote
points on the Cable System.
SECTION 2. GRANT OF FRANCHISE
2.1 Grant
(A) The City hereby grants to Grantee a nonexclusive authorization to make
reasonable and lawful use of the Rights-of-Way within the City to construct,
operate, maintain, reconstruct, rebuild and upgrade a Cable System for the
purpose of providing Cable Service subject to the terms and conditions set
forth in this Franchise. This Franchise shall constitute both a right and
an obligation to provide the Cable Services required by, and to fulfill all
of the requirements set forth in this Franchise.
(B) Nothing in this Franchise shall be deemed to waive the lawful requirements
of any generally applicable City law existing as of the Effective Date.
(C) Each and every term, provision or condition herein is subject to the
provisions of State law, federal law, local law, including, but not limited
to, the Charter of the City (for example, without limitation, Article 13.4
thereof), and any applicable ordinances and regulations enacted pursuant thereto
(including, but not limited to, Ordinance No. 2608-02 and Ordinance 2609-02.
The City reserves all of its rights contained in the City's Charter. The Grantee
specifically agrees to comply with the provisions of Ordinance Nos. 2608-02
and 2609-02 as they may be lawfully amended. The Grantee reserves the right
to challenge any provision of Ordinance Nos. 2608-02 and 2609-02 that conflict
with its contractual rights hereunder, either now or in the future. In the
event of a conflict between Ordinance Nos. 2608-02 and 2609-02 and this Franchise,
the Franchise shall control; provided, however, that the Grantee agrees that
it is always subject to the lawful exercise of the police power of the City.
(D) This Franchise shall not be interpreted to prevent the City from imposing
additional lawful conditions, including additional compensation conditions
for use of the Rights-of-Way, should Grantee provide service other than Cable
Service.
(E) Grantee promises and guarantees, as a condition of exercising the privileges
granted by this Franchise, that any Affiliate of the Grantee directly involved
in the offering of Cable Service in the Franchise Area, or directly involved
in the management or operation of the Cable System in the Franchise Area,
will also comply with the terms and conditions of this Franchise.
(F) No rights shall pass to Grantee by implication. Without limiting the
foregoing, by way of example and not limitation, this Franchise shall not
include or be a substitute for:
(1) Any other permit or authorization required for the privilege of transacting
and carrying on a business within the City that may be required by the ordinances
and laws of the City;
(2) Any permit, agreement, or authorization required by the City for Right-of-Way
users in connection with operations on or in Rights-of-Way or public property
including, by way of example and not limitation, street cut permits; or
(3) Any permits or agreements for occupying any other property of the City
or private entities to which access is not specifically granted by this
Franchise including, without limitation, permits and agreements for placing
devices on poles, in conduits or in or on other structures.
(G) This Franchise is intended to convey limited rights and interests only
as to those Rights-of-Way in which the City has an actual interest. It is
not a warranty of title or interest in any Right-of-Way; it does not provide
the Grantee with any interest in any particular location within the Right-of-Way;
and it does not confer rights other than as expressly provided in the grant
hereof.
(H) This Franchise is an express authorization to provide Cable Services
only. This Franchise is not a bar to the imposition of any lawful conditions
on Grantee with respect to non-Cable Services, Telecommunications Services
or information services, whether similar, different or the same as the conditions
specified herein. This Franchise does not relieve Grantee of any obligation
it may have to obtain from the City an authorization to provide non-Cable
Services, Telecommunications Services or information services, or relieve
Grantee of its obligation to comply with any such authorization(s) that may
be lawfully required. However, this Franchise shall not be read as a concession
by Grantee that it needs authorization to provide non-Cable Services, Telecommunications
Services or information services.
2.2 Use of Rights-of-Way
(A) Subject to the City's supervision and control, Grantee may erect, install,
construct, repair, replace, reconstruct, upgrade and retain in, on, over,
under, upon, across, and along the Rights-of-Way within the City such wires,
cables, conductors, ducts, conduits, vaults, manholes, amplifiers, pedestals,
attachments and other property and equipment as are necessary and appurtenant
to the operation of a Cable System within the City. Grantee, through this
Franchise, is granted extensive and valuable rights to operate its Cable System
for profit using the City's Rights-of-Way in compliance with all applicable
City construction codes and procedures.
(B) Grantee must follow City-established requirements for placement of Cable
System facilities in Rights-of-Way, including the specific location of facilities
in the Rights-of-Way, and must in any event install Cable System facilities
in a manner that minimizes interference with the use of the Rights-of-Way
by others, including others that may be installing communications facilities.
Within limits reasonably related to the City's role in protecting public health,
safety and welfare, the City may require that Cable System facilities be installed
at a particular time, at a specific place or in a particular manner as a condition
of access to a particular Right-of-Way; may deny access if Grantee is not
willing to comply with City's requirements; and may remove, or require removal
of, any facility that is not installed in compliance with the requirements
established by the City, or which is installed without prior City approval
of the time, place or manner of installation, and charge Grantee for all the
costs associated with removal; and may require Grantee to cooperate with others
to minimize adverse impacts on the Rights-of-Way through joint trenching and
other arrangements.
2.3 Term of Franchise
Initial Term. This Franchise and the rights, privileges and authority
granted hereunder shall take effect on July 11, 2002 (the "Effective Date"),
and shall terminate on July 12, 2012, unless extended or terminated sooner
as hereinafter provided.
2.4 Franchise Nonexclusive
This Franchise shall be nonexclusive, and subject to all prior rights, interests,
easements or licenses granted by the City to any Person to use any property,
Right-of-Way, right, interest or license for any purpose whatsoever, including
the right of the City to use the same for any purpose it deems fit, including
the same or similar purposes allowed Grantee hereunder. The City may at any
time grant authorization to use the Rights-of-Way for any purpose not incompatible
with Grantee's authority under this Franchise and for such additional franchises
for cable systems as the City deems appropriate.
2.5 Police Powers
(A) Grantee's rights hereunder are subject to the police powers of the City
to adopt and enforce ordinances necessary to the safety, health, and welfare
of the public, and Grantee agrees to comply with all laws and ordinances of
general applicability enacted, or hereafter enacted, by the City or any other
legally constituted governmental unit having lawful jurisdiction over the
subject matter hereof. The City shall have the right to adopt, from time to
time, such ordinances as may be deemed necessary in the exercise of its police
power; provided that such ordinances shall be reasonable and not destructive
of the rights granted in this Franchise.
(B) The City reserves the right to exercise its police powers, notwithstanding
anything in this Franchise to the contrary, and any conflict between the provisions
of this Franchise and any other present or future lawful exercise of the City's
police powers shall be resolved in favor of the latter.
2.6 Grant of Other Franchises
In the event the City enters into a franchise, permit, license, authorization
or other agreement of any kind with any other Person or entity other than
the Grantee to enter into the City's Rights-of-Way for the purpose of constructing
or operating a cable system or providing Cable Service to any part of the
Franchise Area, in which the Grantee is actually providing Cable Service under
the terms and conditions of this Franchise or is required to extend Cable
Service to under the provisions of this Franchise, the material provisions
thereof shall be reasonably comparable to those contained herein, in order
that one operator not be granted an unfair competitive advantage over another,
and to provide all Persons equal protection under the law.
2.7 Familiarity with Franchise
The Grantee acknowledges and warrants by acceptance of the rights, privileges
and agreements granted herein, that it has carefully read and fully comprehends
the terms and conditions of this Franchise and is willing to and does accept
all lawful and reasonable risks of the meaning of the provisions, terms and
conditions herein. The Grantee further acknowledges and states that it has
fully studied and considered the requirements relating to the upgrade of the
Cable System, and all other requirements and provisions of this Franchise,
and finds that the same are commercially practicable at this time.
2.8 Effect of Acceptance
By accepting the Franchise, the Grantee: (1) acknowledges and accepts the
City's legal right to issue and enforce the Franchise; (2) accepts and agrees
to comply with each and every provision of this Franchise subject to applicable
law; and (3) agrees that the Franchise was granted pursuant to processes and
procedures consistent with applicable law, and that it will not raise any
claim to the contrary.
SECTION 3. FRANCHISE FEE PAYMENTS AND FINANCIAL CONTROLS
3.1 Franchise Fees
As compensation for the benefits and privileges granted under this Franchise
and in consideration of permission to use the Rights-of-Way, Grantee shall
pay as a franchise fee to the City, throughout the duration of this Franchise,
an amount equal to five percent (5%) of Grantee's Gross Revenues. Accrual
of such franchise fees shall commence as of the Effective Date of this Franchise.
3.2 Payments
Grantee's franchise fee payments to the City shall be computed quarterly
for the preceding calendar quarter. Each quarterly payment shall be due and
payable no later than thirty (30) days after the end of the preceding quarter.
3.3 Acceptance of Payment and Recomputation
No acceptance of any payment shall be construed as an accord by the City
that the amount paid is, in fact, the correct amount, nor shall any acceptance
of payments be construed as a release of any claim the City may have for further
or additional sums payable or for the performance of any other obligation
of Grantee. The period of limitation for recovery of franchise fees payable
hereunder shall be three (3) years from the date on which payment by the Grantee
was due.
3.4 Quarterly Franchise Fee Reports
Each payment shall be accompanied by a written report to the City, verified
by an authorized representative of Grantee, containing an accurate statement
in summarized form, as well as in detail, of Grantee's Gross Revenues and
the computation of the payment amount. Such reports shall detail all Gross
Revenues of the Cable System.
3.5 Audits
On an annual basis, upon thirty (30) days prior written notice, the City
shall have the right to conduct an independent audit of Grantee's records
reasonably related to the enforcement of this Franchise. If the audit shows
that franchise fee payments have been underpaid by three percent (3%) or more,
Grantee shall pay the total cost of the audit, such cost not to exceed five
thousand dollars ($5,000) for each year of the audit period. The City's right
to audit and the Grantee's obligation to retain records related to a franchise
fee audit shall expire three (3) years after each franchise fee payment has
been made to the City.
3.6 Late Payments
In the event any payment due quarterly is not received within thirty (30)
days from the end of the preceding quarter, Grantee shall pay interest on
the amount due at the prime rate as listed in the Wall Street Journal on the
date the payment was due, compounded daily, until the date the City receives
the payment.
3.7 Alternative Compensation
In the event the obligation of Grantee to compensate the City through franchise
fee payments is lawfully suspended or eliminated, in whole or part, then Grantee
shall pay to the City such other compensation as is required by law.
3.8 Maximum Legal Compensation
The parties acknowledge that, at present, applicable federal law limits the
City to collection of a maximum permissible franchise fee of five percent
(5%) of Gross Revenues. In the event that at any time throughout the term
of this Franchise, the City is authorized to collect an amount in excess of
five percent (5%) of Gross Revenues, then this Franchise shall be amended
by the parties consistent with such change to provide that such excess amount
shall be added to the franchise fee payments to be paid by Grantee to the
City hereunder. Conversely, in the event that at any time throughout the term
of this Franchise, the City may only collect an amount which is less than
five percent (5%) of Grantee's Gross Revenues for franchise fees due to a
change in federal law, then this Franchise shall be amended by the parties
consistent with such change to provide for such lesser percentage.
3.9 Additional Commitments Not Franchise Fee Payments
No term or condition in this Franchise, including the funding required by
SECTION
9. ACCESS, shall in any way modify or affect Grantee's obligation to pay
franchise fees. Although the total sum of franchise fee payments and additional
commitments set forth elsewhere in this Franchise may total more than five
percent (5%) of Grantee's Gross Revenues in any twelve (12) month period,
Grantee agrees that the additional commitments herein are not franchise fees
as defined under any federal law, nor are they to be offset or credited against
any franchise fee payments due to the City, nor do they represent an increase
in franchise fees to be passed through to Subscribers pursuant to any federal
law.
3.10 Tax Liability
The franchise fees shall be in addition to any and all taxes or other levies
or assessments which are now or hereafter required to be paid by businesses
in general by any law of the City, the State or the United States including,
without limitation, sales, use and other taxes, business license fees or other
payments. Payment of the franchise fees under this Franchise shall not exempt
Grantee from the payment of any other license fee, permit fee, tax or charge
on the business, occupation, property or income of Grantee that may be lawfully
imposed by the City. Any other license fees, taxes or charges shall be of
general applicability in nature and shall not be levied against Grantee solely
because of its status as a Cable Operator.
3.11 Financial Records
Grantee agrees to meet with a representative of the City upon request to
review Grantee's methodology of record-keeping, financial reporting, the computing
of franchise fee obligations and other procedures, the understanding of which
the City deems necessary for reviewing reports and records.
3.12 Payment on Termination
If this Franchise terminates for any reason, the Grantee shall file with
the City within ninety (90) calendar days of the date of the termination,
a financial statement, certified by an independent certified public accountant,
showing the Gross Revenues received by the Grantee since the end of the previous
fiscal year. The City reserves the right to satisfy any remaining financial
obligations of the Grantee to the City by utilizing the funds available in
a letter of credit, if available, or other security provided by the Grantee.
SECTION 4. ADMINISTRATION AND REGULATION
4.1 Authority
(A) To the extent permitted under federal, State and local law, the City
shall be vested with the power and right to reasonably regulate the exercise
of the privileges permitted by this Franchise in the public interest, or to
delegate that power and right, or any part thereof to any agent in its sole
discretion.
(B) Nothing in this Franchise shall limit nor expand the City's right of
eminent domain under State law.
4.2 Rates and Charges
All of Grantee's rates and charges related to or regarding Cable Services
shall be subject to regulation by the City to the full extent authorized by
applicable federal, State and local laws.
4.3 Non-Discriminatory Rates and Charges
All of Grantee's rates and charges shall be published (in the form of a publicly-available
rate card) and shall be non-discriminatory as to all Persons, and organizations
of similar classes, under similar circumstances and conditions. Grantee shall
apply its rates in accordance with governing law, with identical rates and
charges for all Subscribers receiving identical Cable Services, without regard
to race, color, ethnic or national origin, religion, age, sex, sexual orientation,
marital, military or economic status, or physical or mental disability or
geographic location within the City. Grantee shall permit Subscribers to make
any lawful in-residence wiring the Subscriber chooses without additional charge
nor penalizing the Subscriber therefor. However, if any in-home wiring requires
service from Grantee due to signal quality, signal leakage or other factors,
caused by improper installation of such in-home wiring or faulty materials
of such in-home wiring, the Subscriber may be charged reasonable service charges
by Grantee. Nothing herein shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction
with promotional campaigns; or
(B) The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens; or
(C) The offering of rate discounts for Cable Service; or
(D) The Grantee from establishing different and nondiscriminatory rates and
charges and classes of service for Commercial Subscribers, as allowed by federal
law and regulations.
4.4 Filing of Rates and Charges
(A) Throughout the term of this Franchise, Grantee shall provide written
notification to the City of its complete schedule of applicable rates and
charges for residential Cable Services provided under this Franchise. Nothing
in this subsection shall be construed to require Grantee to provide written
notice of its rates and charges under temporary reductions or waivers of rates
and charges in conjunction with promotional campaigns.
(B) Upon request of the City, Grantee shall provide a complete schedule of
current rates and charges for any and all Leased Access Channels, or portions
of such Channels, provided by Grantee. The schedule shall include a description
of the price, terms, and conditions established by Grantee for Leased Access
Channels.
4.5 Cross Subsidization
Grantee shall comply with all applicable laws regarding rates for Cable Services
and all applicable laws covering issues of cross subsidization.
4.6 Performance Evaluations
(A) The City may hold performance evaluation sessions during years three
(3) and six (6) of this Franchise.
(B) Special evaluation sessions may be held at any time by the City during
the term of this Franchise.
(C) All evaluation sessions shall be open to the public and announced at
least two (2) weeks in advance in a newspaper of general circulation in the
City.
(D) Topics which may be discussed at any evaluation session may include,
but are not limited to, Cable Service rate structures; franchise fee payments;
liquidated damages; free or discounted Cable Service; application of new technologies;
Cable System performance; Cable Services provided; programming offered; Subscriber
complaints; privacy; modifications to this Franchise; judicial and FCC rulings;
line extension policies; and the City's or Grantee's rules; provided that
nothing in this subsection shall be construed as requiring the renegotiation
of this Franchise.
(E) During evaluations under this subsection, Grantee shall fully cooperate
with the City and shall provide such information and documents as the City
may reasonably require to perform the evaluation.
4.7 Late Fees
(A) For purposes of this subsection, any assessment, charge, cost, fee or
sum other than collection fees that the Grantee imposes upon a Subscriber
solely for late payment of a bill is a late fee and shall be applied in accordance
with applicable law.
(B) The Grantee's late fee and disconnection policies and practices shall
be nondiscriminatory and such policies and practices, and any fees imposed
pursuant to this subsection, shall apply equally in all parts of the City
without regard to the neighborhood or income level of the Subscriber.
(C) Except as otherwise provided herein, nothing in this subsection shall
be deemed to limit or affect the ability of the Grantee, if any, to impose
other assessments, charges, fees or sums, for the Grantee's other services
or activities it performs in compliance with applicable law, including FCC
rules and regulations.
4.8 Force Majeure
In the event Grantee is prevented or delayed in the performance of any of
its obligations under this Franchise by a reason beyond the control of Grantee,
Grantee shall have a reasonable time, under the circumstances, to perform
the affected obligation under this Franchise or to procure a substitute for
such obligation which is satisfactory to the City. Those conditions which
are not within the control of Grantee include, but are not limited to, natural
disasters, civil disturbances, power outages, telephone network outages, severe
or unusual weather conditions which have a direct and substantial impact on
the Grantee's ability to provide Cable Services in the City and which could
not have been avoided by the Grantee which used its best efforts in its operations
to avoid such results, work delays caused by waiting for utility providers
to service or perform make-ready services on their utility poles or other
facilities to which the Grantee's Cable System is attached, and Grantee's
inability to obtain federal, State or railroad permits despite Grantee's best
efforts to do so.
If Grantee believes that a reason beyond its control has prevented or delayed
its compliance with the terms of this Franchise, Grantee shall provide documentation
as reasonably required by the City to substantiate the Grantee's claim. If
Grantee has not yet cured the deficiency, Grantee shall also provide the City
with its proposed plan for remediation, including the timing for such cure.
4.9 Time Limits Strictly Construed
Whenever this Franchise sets forth a time for any act to be performed by
Grantee or the City, such time shall be deemed to be of the essence, and any
failure of Grantee or the City to perform within the allotted time may be
considered a breach of this Franchise.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
Grantee shall, at its sole cost and expense, defend, indemnify and hold harmless
the City, City Council, and the City's officers, officials, boards, commissions,
agents, representatives, volunteers and employees (collectively referred to
as the "City" in this subsection) against any and all claims and damages, including,
but not limited to, third party claims, suits, causes of action, proceedings,
and judgments or settlements for damages or equitable relief arising out of
the construction, erection, operation, maintenance, repair, replacement or removal
of the Cable System, whether or not any act or omission complained of is authorized,
allowed or prohibited by this Franchise. If an action or suit is filed against
the City, either independently or jointly with Grantee to recover for any claim
or damages or injunctive relief, Grantee, upon notice to it by the City, shall
defend the City against the suit or action and pay all of the City's costs and
expenses in connection therewith. In the event of a settlement, or final judgment
being obtained against the City, either independently or jointly with Grantee,
whether by reason of the acts of the City or Grantee, Grantee shall pay the
settlement or judgment and all costs and expenses and hold the City harmless
therefrom. Costs and expenses shall include, without limitation, all out-of-pocket
expenses, attorneys' fees, consultants' fees, experts' fees, witness and discovery
costs, and the reasonable value of any services rendered by the City Attorney
and his/her office and any other employees of the City. Without limiting in
any way Grantee's obligation to indemnify the City as set forth above, this
indemnity provision also includes damages and liabilities such as:
(1) To Persons or property, in any way arising out of or through the acts or
omissions of Grantee, its contractors, subcontractors and their officers, employees,
or agents, or to which the Grantee's negligence shall in any way contribute;
(2) Arising out of any claim for invasion of the right of privacy; for defamation
of any Person; for the violation or infringement of any copyright, trademark,
trade name, service mark, or patent; for a failure by the Grantee to secure
consents from the owners or authorized distributors of programs to be delivered
by the Cable System; or for violation of any other right of any Person, provided,
however, that Grantee will not be required to indemnify the City for any claims
arising out of the use of Access Channels by the City and/or its Designated
Access Providers or a use by the City of the Emergency Alert System;
(3) Arising out of Grantee's failure to comply with the provisions of any federal,
state or local statute, ordinance, rule or regulation applicable to the Grantee
with respect to any aspect of its business to which this Franchise applies;
and
(4) Arising from any third party suit, action or litigation, whether brought
by a competitor to Grantee or by any other Person, whether such Person does
or does not have standing to bring such suit, action or litigation if such (1)
challenges the authority of the City to issue this Franchise; or (2) alleges
that, in issuing this Franchise, the City has acted in a disparate or discriminatory
manner.
(B) Duty to Give Notice and Tender Defense.
The City shall give Grantee timely written notice of any claim or of the commencement
of any action, suit or other proceeding covered by this subsection. In the event
any such matter arises, the City or any other indemnified party shall tender
the defense thereof to the Grantee and the Grantee shall have the obligation,
at its expense, and duty to defend, settle or compromise any claims arising
thereunder, and the City shall cooperate fully therein; provided, however, that
Grantee may not agree to any settlement financially affecting the City without
the City's prior written approval, which approval shall not be unreasonably
withheld.
5.2 Insurance
(A) Grantee shall maintain in full force and effect at its own cost and expense
each of the following policies of insurance:
(1) Commercial General Liability insurance with limits of no less than
two million five hundred thousand dollars ($2,500,000.00) per occurrence
and five hundred thousand dollars ($500,000.00) excess liability. Such insurance
shall name the City, City Council, and the City's officers, officials, boards,
commissions, agents, representatives, volunteers and employees as additional
insureds. The policy shall contain a severability of interests provision.
(2) Commercial Automobile Liability insurance with minimum combined single
limits of two million five hundred thousand dollars ($2,500,000.00) each
occurrence and five hundred thousand dollars ($500,000.00) excess liability
with respect to each of Grantee's owned, hired and non-owned vehicles assigned
to or used in the operation of the Cable System in the City. The policy
shall contain a severability of interests provision.
(3) Employer's Liability with limits of at least one million dollars ($1,000,000.00).
(4) Workers' Compensation insurance shall be maintained during the life
of this Franchise to comply with statutory limits for all employees.
(B) Each policy shall provide that the insurance shall not be canceled or
terminated so as to be out of compliance with these requirements without forty-five
(45) days' written notice first provided to the City, via mail, and ten (10)
days' notice for nonpayment of any premium. If the insurance is canceled or
terminated so as to be out of compliance with the requirements of this Franchise,
Grantee shall provide a replacement policy. Grantee agrees to maintain continuous
uninterrupted insurance coverage, in at least the amounts required, for the
duration of this Franchise and, in the case of Commercial General Liability
insurance, for at least one (1) year after expiration of this Franchise.
5.3 Endorsements/Coverage
(A) Endorsements.
(1) All policies shall contain, or shall be endorsed so that:
(a) The City, City Council, and the City's officers, officials, boards,
commissions, agents, representatives, volunteers and employees are to
be covered as, and have the rights of, additional insureds with respect
to liability arising out of activities performed by, or on behalf of,
Grantee under this Franchise or applicable law, or in the construction,
operation, upgrade, maintenance, repair, replacement or ownership of the
Cable System;
(b) Grantee's insurance coverage shall be primary insurance with respect
to the City, City Council, and the City's officers, officials, boards,
commissions, agents, representatives, volunteers and employees. Any insurance
or self-insurance maintained by the City, City Council, and the City's
officers, officials, boards, commissions, agents, representatives, volunteers
or employees shall be in excess of the Grantee's insurance and shall not
contribute to it provided the occurrence arises out of Grantee's negligence;
and
(c) Grantee's insurance shall apply separately to each insured against
whom a claim is made or lawsuit is brought, except with respect to the
limits of the insurer's liability.
(B) Acceptability of Insurers.
The insurance obtained by Grantee shall be placed with insurers licensed to
do business in the State of Washington with a Best's rating of no less than
"A VII."
The Grantee shall furnish the City with certificates of insurance and endorsements
or a copy of the page of the applicable policy reflecting blanket additional
insured status. The certificates and endorsements for each insurance policy
are to be signed by a person authorized by that insurer to bind coverage on
its behalf. The certificates and endorsements for each insurance policy are
to be on standard forms or such forms as are consistent with standard industry
practices, and are to be received by and are subject to the approval of the
City prior to the commencement of any activities associated with this Franchise.
The Grantee hereby warrants that its insurance policies satisfy the requirements
of this Franchise and City laws.
5.4 Letter of Credit
(A) If there is an uncured breach by Grantee of a material provision of this
Franchise or a pattern of repeated violations of any provision(s) of this
Franchise, then the City may request and Grantee shall establish and provide
to the City, as security for the faithful performance by Grantee of all of
the provisions of this Franchise, a letter of credit from a financial institution
satisfactory to the City in the amount of twenty-five thousand dollars ($25,000).
(B) The letter of credit, if established, shall then be maintained at twenty-five
thousand dollars ($25,000) throughout the term of this Franchise.
(C) After the giving of notice by the City to Grantee and expiration of any
applicable cure period, the letter of credit may be drawn upon by the City
for purposes which include, but are not limited to, the following:
(1) Failure of Grantee to pay the City sums due under the terms of this
Franchise;
(2) Reimbursement of costs borne by the City to correct Franchise violations
not corrected by Grantee; and
(3) Monetary remedies or damages assessed against Grantee as provided in
this Franchise.
(D) The City shall give Grantee written notice of any withdrawal under this
subsection upon such withdrawal. Within twenty-one (21) days following receipt
of such notice, Grantee shall restore the letter of credit to the amount required
under this Franchise. Grantee's maintenance of the letter of credit shall
not be construed to excuse unfaithful performance by Grantee or limit the
liability of Grantee to the amount of the letter of credit or otherwise limit
the City's recourse to any other remedy available at law or in equity.
(E) Grantee shall have the right to appeal to the City Council for reimbursement
in the event Grantee believes that the letter of credit was drawn upon improperly.
Grantee shall also have the right of judicial appeal if Grantee believes the
letter of credit has not been properly drawn upon in accordance with this
Franchise. Any funds the City erroneously or wrongfully withdraws from the
letter of credit shall be returned to Grantee with interest, from the date
of withdrawal at a rate equal to the prime rate of interest as quoted in the
Wall Street Journal.
5.5 Bonds
(A) Upon commencement of the Cable System upgrade, Grantee shall provide
a construction bond in the amount of two hundred fifty thousand dollars ($250,000)
to ensure the faithful performance of its responsibilities under this Franchise
and applicable law, including, by way of example and not limitation, its obligations
to restore Rights-of-Way and other City property. The construction bond shall
be with a surety licensed to do business in Washington. The Grantee shall
keep the construction bond in full force and effect until the upgrade of the
Cable System has been completed to the reasonable satisfaction of the City
and all restoration of public and private property shall have occurred regarding
thereto. Thereafter, the City shall release the construction bond.
(B) Grantee may be required to obtain additional bonds in accordance with
the City's bonding requirements. Grantee shall pay all premiums or costs associated
with maintaining any bond(s), and shall keep the same in full force and effect.
(C) Grantee's maintenance of the bond(s) shall not be construed to excuse
unfaithful performance by Grantee or limit the liability of Grantee to the
amount of the bond(s) or otherwise limit the City's recourse to any other
remedy available at law or in equity.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
Grantee shall comply with Customer Service Standards of the City, as the
same may be adopted and amended from time to time by the City Council acting
by ordinance. Grantee reserves the right to challenge any customer service
ordinance which it believes is inconsistent with its contractual rights under
this Franchise.
6.2 Subscriber Privacy
Grantee shall fully comply with any provisions regarding the privacy rights
of Subscribers contained in federal, State, or local law.
6.3 Subscriber Contracts
Grantee shall not enter into a contract with any Subscriber that is in any
way inconsistent with the terms of this Franchise. Upon request, Grantee will
provide to the City a sample of the Subscriber contract or service agreement
then in use.
SECTION 7. REPORTS AND RECORDS
7.1 Open Records
Grantee shall manage all of its operations in accordance with a policy of
keeping its documents and records open and accessible to the City. The City
shall have access to, and the right to inspect, any books and records of Grantee
and its Affiliates that are reasonably necessary for the enforcement of the
provisions of this Franchise. Grantee shall not deny the City access to any
of Grantee's records on the basis that Grantee's records are under the control
of any Affiliate or a third party. The City may, in writing, request copies
of any such records or books and Grantee shall provide such copies within
thirty (30) days of the transmittal of such request. One (1) copy of all reports
and records required under this or any other subsection shall be furnished
to the City, at the sole expense of Grantee. If the requested books and records
are too voluminous, or for security reasons cannot be copied or removed, then
Grantee may request, in writing within ten (10) days, that the City inspect
them at Grantee's local office. If any books or records of Grantee are not
kept in a local office and not made available in copies to the City upon written
request as set forth above, and if the City determines that an examination
of such records is necessary or appropriate for the performance of any of
the City's duties or enforcement of this Franchise, then all reasonable travel
and related expenses incurred in making such examination shall be paid by
Grantee.
7.2 Confidentiality
The City agrees to treat as confidential any books or records that constitute
proprietary or confidential information under federal or State law, to the
extent Grantee makes the City aware of such confidentiality. Grantee shall
be responsible for clearly and conspicuously stamping the word "Confidential"
on each page that contains confidential or proprietary information, and shall
provide a brief written explanation as to why such information is confidential
under State or federal law. If the City believes it must release any such
confidential books and records in the course of enforcing this Franchise,
or for any other reason, it shall use its best efforts to advise Grantee,
with sufficient time in advance, so that Grantee may take appropriate steps
to protect its interests. If the City receives a demand from any Person for
disclosure of any information designated by Grantee as confidential, the City
shall, so far as consistent with applicable law, use its best efforts to advise
Grantee and provide Grantee with a copy of any written request by the party
demanding access to such information within a reasonable time.
7.3 Records Required
(A) Grantee shall at all times maintain, and shall furnish to the City upon
request:
(1) A complete set of up-to-date and detailed route maps in an electronic
format showing the location of all Cable System equipment and facilities
in the Right-of-Way, but excluding details on proprietary electronics contained
therein and Subscriber drops. As-built maps including proprietary electronics
shall be available at Grantee's offices for inspection by the City's authorized
representative(s) or agent(s) and will be made available during the course
of technical inspections as reasonably conducted by the City. These maps
shall be certified as accurate by an appropriate representative of the Grantee;
(2) A copy of all FCC filings on behalf of Grantee or its Affiliates which
relate to the operation of the Cable System in the City;
(3) A log of Cable Services added or dropped, Channel changes, number of
Subscribers, all construction activity, and total homes passed for the previous
twelve (12) months; and
(4) A list of current Cable Services, rates and the Channel line-up.
(B) Subject to subsection 7.2
Confidentiality, all information furnished to the City is public information,
and shall be treated as such, except for information involving the privacy
rights of individual Subscribers.
7.4 Annual Reports
Within ninety (90) days after the end of the calendar year, Grantee shall
submit to the City a written report, which shall include, but not necessarily
be limited to, the following information:
(A) A Gross Revenue statement for the preceding year and all deductions and
computations for the period, and such statement shall be reviewed by a certified
public accountant, who may also be the chief financial officer or controller
of Grantee, prior to submission to the City.
(B) A summary of the previous year's activities in the development of the
Cable System, including, but not limited to, beginning and ending plant miles,
any technological changes occurring in the Cable System and the number of
Subscribers for each class of Cable Service (i.e., Basic, Expanded
Basic Service, and Premium);
(C) A description of planned construction, if any, for the current year;
and
(D) An executive summary of Subscriber complaints received in the previous
year.
7.5 Copies of Federal and State Reports
Upon request, Grantee shall submit to the City copies of all pleadings, applications,
notifications, communications and documents of any kind, submitted by Grantee
or its Affiliates, to any federal, State or local courts, regulatory agencies
and other governmental bodies if such documents directly relate to the operations
of Grantee's Cable System within the City. Grantee shall not claim confidential,
privileged or proprietary rights to such documents unless under federal, State,
or local law such documents have been determined to be confidential by a court
of competent jurisdiction, or a federal or State agency.
7.6 Complaint File and Reports
Grantee shall keep an accurate and comprehensive record of any and all complaints
regarding the Cable System, in a manner consistent with the privacy rights
of Subscribers, and Grantee's actions in response to those complaints.
Grantee shall provide the City such other information as is reasonably requested
by the City which is necessary for the enforcement of the Franchise and/or
Customer Service Standards, provided that Grantee is given thirty (30) days
prior written notice of such request.
7.7 Failure to Report
The failure or neglect of Grantee to file any of the reports or filings required
under this Franchise or such other reports as the City may reasonably request
(not including errors made in good faith), may, at the City's option, be deemed
a breach of this Franchise.
7.8 False Statements
Any false or misleading statement or representation in any report required
by this Franchise (not including clerical errors or errors made in good faith)
may be deemed a material breach of this Franchise and may subject Grantee
to all remedies, legal or equitable, which are available to the City under
this Franchise or otherwise.
SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide at least the following initial broad categories of
programming to the extent such categories are reasonably available:
(A) Educational programming;
(B) News, weather and information;
(C) Sports;
(D) General entertainment (including movies);
(E) Children/family-oriented; and
(F) Government affairs.
8.2 Deletion or Reduction of Broad Programming Categories
(A) Grantee shall not delete or so limit as to effectively delete any broad
category of programming within its control without the prior written consent
of the City.
(B) In the event of a modification proceeding under federal law, the mix
and quality of Cable Services provided by Grantee on the Effective Date of
this Franchise shall be deemed the minimum mix and quality of Cable Services
required under this Franchise throughout its term.
8.3 Ascertainment of Programming and Customer Satisfaction
Upon request of the City, but not more frequently than once every three (3)
years, the Grantee shall, at the sole expense of Grantee, conduct a statistically
valid telephone survey of its customers. The survey may include such items
as programming, response to community needs, satisfaction and dissatisfaction
with Cable Services offered by Grantee and customer service. Grantee shall
consult and cooperate with the City in developing and implementing an ascertainment
methodology. The final form and content of the survey shall be as mutually
agreed upon by the Grantee and the City. Grantee shall provide the results
of such survey to the City within two (2) months after completing the survey.
Nothing herein shall be construed to limit the right of the City to conduct
its own surveys at its own expense.
8.4 Obscenity
Grantee shall not transmit, or permit to be transmitted over any Channel
subject to its editorial control, any programming which is obscene under,
or violates any provision of, applicable law relating to obscenity, and which
is not protected by the Constitution of the United States. Grantee shall be
deemed to have transmitted or permitted a transmission of obscene programming
only if a court of competent jurisdiction has found that any of Grantee's
officers or employees or agents have permitted programming which is obscene
under, or violates, any provision of applicable law relating to obscenity,
and which is otherwise not protected by the Constitution of the United States,
to be transmitted over any Channel subject to Grantee's editorial control.
Grantee shall comply with all relevant provisions of federal law relating
to obscenity.
8.5 Parental Control Device
Upon request by any Subscriber, Grantee shall make available a parental control
or lockout device, traps or filters to enable a Subscriber to control access
to both the audio and video portions of any or all Channels. Grantee shall
inform its Subscribers of the availability of the lockout device at the time
of their initial subscription and periodically thereafter. Any device offered
shall be at a rate, if any, in compliance with applicable law.
8.6 Continuity of Service Mandatory
(A) It shall be the right of all Subscribers to continue to receive Cable
Service from Grantee insofar as their financial and other obligations to Grantee
are honored. The Grantee shall act to the best of its ability so as to ensure
that all Subscribers receive continuous, uninterrupted Cable Service. For
the purposes of this subsection, "uninterrupted" does not include short-term
outages of the Cable System for upgrade construction, repair, maintenance
or testing.
(B) In the event of a change in ownership of the Cable System, Grantee shall
cooperate with the City and the new Cable Operator to maintain continuity
of Cable Service to all Subscribers. During any transition period, Grantee
shall be entitled to the revenues for any period during which it operates
the Cable System, and shall be entitled to compensation for those services
rendered (which are requested by the City) when it no longer owns the Cable
System.
8.7 Cable Bill Inserts
The Grantee shall use reasonable efforts to accommodate the City's requests
for the placement of messages on billing statements, at no cost to the City.
8.8 Services for the Disabled
Grantee shall comply with the Americans With Disabilities Act and any amendments
or successor legislation thereto.
SECTION 9. ACCESS
9.1 Initial Capital Contribution Payment
Grantee shall provide an initial Capital Contribution payment of Three Hundred
Thousand Dollars ($300,000) within sixty (60) days of the Effective Date for
Access or I-Net purposes to the City. This is an initial payment of the Capital
Contribution set forth in subsection 9.2
Capital Contribution. The payment is to be used by the City, in its sole
discretion, for Access equipment (including, but not limited to, studio and
portable production equipment, editing equipment and program playback equipment),
for Access-related facilities renovation or construction, or for City I-Net
purposes in accordance with this Franchise. To the extent allowed by federal
law, the Capital Contribution payment may be treated as an external cost by
Grantee and itemized on subscriber bills.
9.2 Capital Contribution
Commencing with the Effective Date, Grantee shall provide to the City One
Dollar ($1.00) per month per Residential Subscriber throughout the term of
this Franchise and extension hereof, if any, for Access or I-Net capital (the
"Capital Contribution"). The City shall evaluate the Capital Contribution
during any performance evaluation conducted pursuant to subsection 4.6
Performance Evaluations. Grantee shall retain the Capital Contribution
up to the amount advanced in subsection 9.1
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Thereafter, Grantee shall remit collected Capital Contributions to the City
no less often than quarterly. Grantee shall not be responsible for paying
the Capital Contribution with respect to gratis or bad debt accounts. Within
ninety (90) days after the end of each year, Grantee shall provide a report
to the City regarding such gratis or bad debt accounts, which report may be
included as part of another report. The City can inquire as to the status
of any such accounts, and the Grantee agrees to meet with the City, upon request,
to discuss such matters as necessary.
The City shall have discretion to allocate the Capital Contribution in accordance
with applicable law, provided that the City submits a summary of capital expenditures
from the Capital Contribution to Grantee within ninety (90) days of the end
of each calendar year. The City Council may adjust the amount of the Capital
Contribution on an annual basis (up to the maximum of One Dollar ($1.00) per
month per Residential Subscriber)), or waive the requirement altogether, provided
that Grantee is given ninety (90) days advance written notice. To the extent
the City makes Access or I-Net capital investments using City funds prior
to receiving necessary Capital Contribution funds, the City is entitled to
apply subsequent Capital Contribution payments from Grantee toward such City
capital investments.
The City and Grantee agree that any Capital Contribution shall be referred
to on Subscribers' bills as a "PEG fee," "I-Net fee" or language substantially
similar thereto. Grantee shall not change such reference on the Subscribers'
bills without the prior written consent of the City, which consent shall not
be unreasonably withheld.
9.3 Management and Control of Access Channels
The City shall have sole and exclusive responsibility for identifying the
Designated Access Providers and allocating the Access resources under this
Section. The City may authorize Designated Access Providers to control and
manage the use of any and all Access facilities provided by Grantee under
this Franchise, including, without limitation, the operation of Access Channels.
To the extent of such designation by the City, the Designated Access Provider
shall have sole and exclusive responsibility for operating and managing such
Access facilities. The City or its designee may formulate rules for the operation
of the Access Channels, consistent with this Franchise. Grantee shall cooperate
with the City and Designated Access Providers in the use of the Cable System
and Access facilities for the provision of Access programming. Nothing herein
shall prohibit the City from authorizing itself to be a Designated Access
Provider. Additionally, nothing herein shall prohibit the City from assigning
several Designated Access Providers to share a single Access Channel.
9.4 Access Channels
Grantee shall, at its expense, initially provide at least two (2) Access
Channels. As of the Effective Date, these Access Channels shall be allocated
as follows: one (1) Educational Access Channel and one (1) Government Access
Channel.
To the extent allowed by law, the City agrees to indemnify, save and hold
harmless the Grantee from and against any and all liability resulting from
the City's use of the government Access Channel, or another Access Channel
if the City exercises direct editorial control thereof. By way of example
only, the City does not exercise editorial control over Educational Access
Channels.
9.5 Change In Technology
In the event Grantee makes any change in the Cable System and related equipment
and facilities or in Grantee's signal delivery technology, which directly
or indirectly affects the signal quality or transmission of Access services
or programming, Grantee shall at its own expense take necessary technical
steps or provide necessary technical assistance, including the acquisition
of all necessary equipment and full training of Access personnel, to ensure
that the capabilities of Access services are not diminished or adversely affected
by such change. For example, this provision shall apply if the Cable System
is converted from an analog to a solely digital format, such that the Access
Channels must also be converted to digital in order to be received by Subscribers.
9.6 Underutilized Access Channels
Grantee and the City agree that it is their mutual goal to fully and efficiently
use the Channel capacity of the Cable System, which may include allowing the
Grantee to use underutilized time on Access Channels. If Grantee believes
that any Access Channel has underutilized time, Grantee may file a request
with the City to use that time. In response to the request, the City will
consider a combination of factors, including but not limited to, the community's
needs and interests, and the source, quantity, type and schedule of the programming
carried on the Access Channel. The City will also consider, taking into account
the mission of the Access programming, whether it is feasible for the Designated
Access Providers to cluster Access programming into blocks of time such that
the Channel space can be compatibly shared between the Designated Access Provider
and the Grantee and/or if several Designated Access Providers can combine
their programming onto a single Access Channel. The City shall render its
decision regarding the matter within sixty (60) days of receiving the request.
Should the City find that the Access Channel or portion of the Access Channel
may be used by the Grantee, then Grantee may begin using such time ninety
(90) days after receipt of the decision. The Grantee's request shall not be
unreasonably denied. Any permission granted pursuant to this subsection for
use of an Access Channel or a portion thereof shall be considered temporary.
At such time as a Designated Access Provider believes that it has the resources
and ability to utilize the Access Channel time currently used by the Grantee
pursuant to this subsection, a Designated Access Provider may request that
the City return such Channel or portion of the Channel for Access purposes.
In response to the request, the City will consider a combination of factors,
including but not limited to, the community's needs and interests, and the
source, quantity, type and schedule of the programming proposed to be carried
on the Access Channel as well as the Designated Access Provider's ability
and resources to acquire or produce the proposed Access programming. The City
will also consider, taking into account the mission of the Access programming,
whether it is feasible for the Designated Access Providers to cluster Access
programming into blocks of time such that the Channel space can be compatibly
shared between the Designated Access Provider and the Grantee and/or if several
Designated Access Providers can combine their programming onto a single Access
Channel. The City shall render its decision regarding the matter within sixty
(60) days of receiving the request. Should the City find that the evidence
exists to support the return of the Access Channel or portion of the Access
Channel to the Designated Access Provider, then Grantee shall surrender the
Access Channel or requested time on the Access Channel as applicable within
ninety (90) days of receiving the decision. The Designated Access Provider's
request shall not be unreasonably denied.
9.7 Additional Access Channels
Upon completion of the Cable System upgrade, Grantee shall, at the request
of the City, provide and activate, at Grantee's expense, up to six (6) additional
Access Channels, for a maximum of eight (8) Access Channels. Any requests
beyond the foregoing for additional Access Channels shall be governed under
the procedures specified below.
If a Designated Access Provider believes that additional Access Channel capacity
is needed, the Designated Access Provider may file a request with the City.
In its deliberations, the City will consider supply and demand, and, in particular,
the ability and resources of the Designated Access Provider to produce additional
Access programming, the interest of the community in the additional Access
programming as measured through a survey methodology that is mutually acceptable
between the City and the Grantee, consideration of the programming that would
be displaced, how much programming is produced on the existing Access Channels
in the Seattle metropolitan area, how much programming on the existing Access
Channels is repeated, how much programming on the existing Access Channels
is character-generated, whether it is feasible for the Designated Access Providers
to cluster Access programming into blocks of time such that space on several
Channels can be compatibly shared between multiple Designated Access Providers,
and if several Designated Access Providers should combine their programming
onto a single Access Channel.
Should the City find that the evidence exists to support the activation of
an additional Access Channel or Channels, then the City shall provide its
decision in writing and Grantee shall provide the Access Channel(s) within
ninety (90) days of receiving the request. Grantee may appeal the decision
to the City Council.
9.8 Access Channels On Basic Service
All Access Channels provided to Subscribers under this Franchise shall be
included by Grantee, without limitation, as a part of Basic Service.
9.9 Access Channel Assignments
Grantee will use reasonable efforts to minimize the movement of Access Channel
assignments. Grantee shall also use reasonable efforts to institute common
Access Channel assignments among communities throughout the Seattle metropolitan
area for compatible Access programming, for example, by assigning all Educational
Access Channels programmed by higher education organizations to the same Channel
number(s).
9.10 Relocation of Access Channels
Grantee shall provide the City with a minimum of ninety (90) days notice,
and use its best efforts to provide one hundred twenty (120) days notice,
prior to the time any Access Channel designation is changed, unless the change
is required by federal law, in which case Grantee shall give the City the
maximum notice possible. In addition, Grantee, at its expense, shall actively
assist the City in remarketing and advertising any change of an Access Channel
designation. Grantee, at Grantee's expense, will place the City's notices
of the Channel change on or with its regular monthly billings, upon the City's
request. Any new Access Channels provided pursuant to this Franchise shall
be in full compliance with FCC signal quality and proof-of-performance standards.
9.11 Interconnections
Grantee acknowledges that is the City's goal to further the community's needs
and interests by providing for the interconnection of Access Channels between
the City and surrounding communities. Therefore, Grantee will implement the
Access Channel interconnections, which facilitate the sharing of Access programming
between and among the City and surrounding (geographically adjacent) communities.
The City shall have the right to use any Access programming provided to it
through an interconnect.
9.12 Return Lines
Grantee shall, at its expense, continuously maintain throughout the term
of this Franchise return lines to the headend from the demarcation points
at City Hall and the Parks Department's headquarters in order to enable the
distribution of Access programming to Residential Subscribers on the Access
Channels.
9.13 Repair and Replacement
The Grantee shall provide routine maintenance and shall repair and replace
all of Grantee's transmission equipment as necessary to carry a quality signal
from the Access facilities to Subscribers.
SECTION 10. INSTITUTIONAL NETWORK AND COMPLIMENTARY
CABLE INTERNET SERVICE
10.1 Institutional Network
Upon request of the City, Grantee shall use its best efforts to diligently
develop a conceptual design for an Institutional Network ("I-Net") for non-commercial
purposes. Upon receipt of such design by the City, the parties shall thereafter
meet and negotiate in good faith in an attempt to develop a mutually acceptable
I-Net Agreement.
10.2 Complimentary Cable Internet Service
At such time as Grantee offers Cable Internet Service to its Subscribers
in the City (and if, at such time or thereafter, Cable Internet Service is
considered to be a Cable Service under applicable law), it will offer free
of charge residential high-speed Cable Internet Service to at least one connection
in each school and one connection, for official use, in every public library
passed by the Cable System. Grantee shall then also provide, without charge,
one cable modem per site, one ethernet card, if necessary, and any software
necessary for access to such service. There will be no charge for unrestricted
usage of the Cable Internet Service. The user facility shall be responsible
for the provision, maintenance, and replacement of any hardware such as personal
computers and related equipment required to utilize such service, as well
as the cost of installing additional outlets if so requested.
SECTION 11. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
11.1 Right to Construct
Subject to applicable laws, regulations, rules, resolutions and ordinances
of the City and the provisions of this Franchise, Grantee may perform all
construction in the Rights-of-Way for any facility needed for the maintenance,
upgrade or extension of Grantee's Cable System.
11.2 Right-of-Way Meetings
Grantee will regularly attend and participate in meetings of the City, of
which the Grantee is made aware, regarding Rights-of-Way, joint trenching
and boring issues that may impact the Cable System.
11.3 Joint Trenching/Boring
Whenever it is possible and reasonably practicable to joint trench or share
bores or cuts, Grantee shall work with other providers (such as, but not limited
to, telecommunications, gas and electric companies), licensees, permitees,
and franchisees so as to reduce so far as possible the number of Right-of-Way
cuts within the City.
11.4 General Standards
All work authorized and required hereunder shall be done in a safe, thorough
and workmanlike manner. All installations of equipment shall be durable and
installed in accordance with sound engineering practices. Grantee will take
prompt corrective action if it finds that any facilities or equipment on the
Cable System are not operating as expected, or if it finds that facilities
and equipment do not comply with the requirements of this Franchise or applicable
law.
11.5 Permits Required for Construction
Prior to doing any work in the Right-of Way or other public property, Grantee
shall apply for, and obtain, appropriate permits from the City. As part of
the permitting process, the City may impose such conditions and regulations
as are necessary for the purpose of protecting any Rights-of-Way, the proper
restoration of Rights-of-Way and structures, the protection of the public,
and the continuity of pedestrian or vehicular traffic. Such conditions may
also include requiring the provision of a construction schedule and maps showing
the location of the facilities to be installed in the Right-of-Way. Grantee
shall pay all applicable fees for the requisite City permits received by Grantee.
11.6 Emergency Permits
In the event that emergency repairs are necessary, Grantee shall immediately
notify the City of the need for such repairs. Grantee may initiate such emergency
repairs, and shall apply for appropriate permits within forty-eight (48) hours
after discovery of the emergency.
11.7 Movement of Facilities During Emergencies
During emergencies, the City may move Grantee's facilities without prior
notice.
11.8 Compliance with Applicable Codes
Grantee shall comply with all applicable City construction codes, including,
without limitation, all building codes, zoning codes and regulations.
Antenna supporting structures (towers) shall be designed for the proper loading
as specified by the Electronics Industries Association (EIA), as those specifications
may be amended from time to time. Antenna supporting structures (towers) shall
be painted, lighted, erected and maintained in accordance with all applicable
rules and regulations of the Federal Aviation Administration and all other applicable
federal, State, and local codes or regulations.
Grantee shall comply with all federal, State and City safety requirements,
rules, regulations, laws and practices, and employ all necessary devices as
required by applicable law during the construction, operation, maintenance,
upgrade, repair or removal of its Cable System. By way of illustration and not
limitation, Grantee shall comply with the National Electric Code, National Electrical
Safety Code and Occupational Safety and Health Administration (OSHA) Standards.
11.9 Minimal Interference
Work in the Right-of-Way, on other public property, near public property,
or on or near private property shall be done in a manner that causes the least
interference with the rights and reasonable convenience of property owners
and residents. Grantee's Cable System shall be constructed and maintained
in such a manner as not to interfere with sewers, water pipes, or any other
property of the City, or with any other pipes, wires, conduits, pedestals,
structures, or other facilities that may have been laid in the Rights-of-Way
by, or under, the City's authority. The Grantee's Cable System shall be located,
erected and maintained so as not to endanger or interfere with the lives of
Persons, or to interfere with new improvements the City may deem proper to
make or to unnecessarily hinder or obstruct the free use of the Rights-of-Way
or other public property, and shall not interfere with the use of public places
by the public during the construction, repair, operation, maintenance, upgrade
or removal thereof, and shall not obstruct or impede traffic. In the event
of such interference, the City may require the removal or relocation of Grantee's
lines, cables, equipment and other appurtenances from the property in question
at Grantee's expense.
11.10 Prevent Injury/Safety
Grantee shall provide and use any equipment and facilities necessary to control
and carry Grantee's signals so as to prevent injury to the City's property
or property belonging to any Person. Grantee, at its own expense, shall repair,
renew, change and improve its facilities to keep them in good repair, and
safe and presentable condition.
11.11 One Call
Grantee will maintain membership in good standing with the Utility Coordinating
Council One Call Center or other similar or successor organization which is
designated to coordinate underground equipment locations and installations.
Grantee shall abide by RCW Chapter 19.122 (Washington State's "Underground
Utilities" statutes) and will further comply with and adhere to local procedures,
customs and practices relating to the one call locator service program.
11.12 Notice Regarding Right-of-Way
Grantee shall give reasonable notice to private property owners of construction
work in adjacent Rights-of-Way.
11.13 Underground Construction and Use of Poles
(A) The Grantee shall utilize existing poles and conduit wherever possible.
(B) In areas where either electric or telephone utility wiring is aerial,
the Grantee may install aerial cable, except when a property owner or resident
requests underground installation and agrees to bear the additional cost in
excess of aerial installation.
(C) In areas where electric and telephone lines or wires are installed underground
at the time of Cable System construction, or when all such wiring is subsequently
placed underground, all Cable System lines shall also be placed underground
with other wireline service at no expense to the City or Subscribers unless
funding is generally available for such relocation to all users of the Rights-of-Way.
Related Cable System equipment, such as pedestals and power supplies, must
be placed in accordance with the City's applicable code requirements and rules.
(D) In the event Grantee cannot obtain the necessary poles and related facilities
pursuant to a pole attachment agreement, and only in such event, then it shall
be lawful for Grantee to make all needed excavations in the Rights-of-Way
for the purpose of placing, erecting, laying, maintaining, repairing, and
removing poles, supports for wires and conductors, and any other facility
needed for the maintenance or extension of Grantee's Cable System. All poles
of Grantee shall be located as designated by the proper City authorities.
(E) This Franchise does not grant, give or convey to the Grantee the right
or privilege to install its facilities in any manner on specific utility poles
or equipment of the City or any Person.
(F) The Grantee and the City recognize that situations may occur in the future
where the City may desire to place its own cable or conduit in trenches or
bores opened by the Grantee as contrasted with having the Grantee make such
installations for the City. The Grantee agrees to cooperate with the City
in any construction by the Grantee that involves trenching or boring, provided
that the City has first notified the Grantee in some manner that it is interested
in sharing the trenches or bores in the area where the Grantee's construction
is occurring. The Grantee shall allow the City to lay City cables and conduits
in the Grantee's trenches and bores, provided the City shares in the cost
of the trenching and boring on the same terms and conditions as the Grantee.
The City shall be responsible for maintaining its respective cables and conduits
buried in the Grantee's trenches and bores under this paragraph.
11.14 Repair and Restoration of Property
(A) The Grantee shall protect public and private property from damage. If
damage occurs, the Grantee shall promptly notify the property owner within
twenty-four (24) hours.
(B) Whenever Grantee disturbs or damages any Right-of-Way, other public property
or any private property, Grantee shall promptly restore the Right-of-Way or
property to at least its prior condition, normal wear and tear excepted, at
its own expense to the reasonable satisfaction of the property owner.
(C) Rights-of-Way and Other Public Property. Grantee shall warrant
any restoration work performed by or for Grantee in the Right-of-Way or on
other public property for one (1) year. If restoration is not satisfactorily
performed by the Grantee within a reasonable time, the City may, after prior
notice to the Grantee, or without notice where the disturbance or damage may
create a risk to public health or safety, cause the repairs to be made and
recover the cost of those repairs from the Grantee. Within thirty (30) days
of receipt of an itemized list of those costs, including the costs of labor,
materials and equipment, the Grantee shall pay the City.
11.15 Discontinuing Use
Whenever Grantee intends to discontinue using any facility within the Rights-of-Way,
Grantee shall notify the City of its intent regarding such discontinuance.
Grantee may remove the facility or request that the City permit it to remain
in place. Notwithstanding Grantee's request that any such facility remain
in place, the City may require Grantee to remove the facility from the Right-of-Way
or modify the facility to protect the public health, welfare, safety, and
convenience, or otherwise serve the public interest. The City may require
Grantee to perform a combination of modification and removal of the facility.
Grantee shall use its best efforts to complete such removal or modification
in accordance with a schedule set by the City. Until such time as Grantee
removes or modifies the facility as directed by the City, or until the rights
to and responsibility for the facility are accepted by another Person having
authority to construct and maintain such facility, Grantee shall be responsible
for all necessary repairs and relocations of the facility, as well as maintenance
of the Right-of-Way, in the same manner and degree as if the facility were
in active use, and Grantee shall retain all liability for such facility.
11.16 Relocation or Removal
(A) Grantee shall, at its expense, relocate within or remove its facilities
from the Right-of-Way or other public property when reasonably necessary for
purposes of public welfare, health, or safety.
(B) Except during an emergency, the City shall notify Grantee of the need
for relocation or removal and shall specify the date by which relocation or
removal shall be completed. Grantee shall complete the relocation or removal
by the date specified, unless the City, or a reviewing court, establishes
a later date for completion, after a showing by the Grantee that the relocation
or removal cannot be completed by the date specified using best efforts and
meeting safety and service requirements. The City shall provide not less than
five (5) business days notice, and allow Grantee the opportunity to perform
such action. In the event of any capital improvement project exceeding $500,000
in expenditures by the City that requires the removal or relocation of Grantee's
facilities or equipment, the City shall provide at least sixty (60) days'
written notice to Grantee. Following notice by the City, Grantee shall relocate
or remove its facilities or equipment within any Right-of-Way, or on any other
property of the City. If the City requires Grantee to relocate its facilities
located within the Rights-of-Way, the City shall make a reasonable effort
to provide Grantee with an alternate location within the Rights-of-Way. If
funds are generally made available to users of the Rights-of-Way for such
relocation, Grantee shall be entitled to its pro rata share of such funds.
If the Grantee fails to complete this work within the time prescribed and
to the City's satisfaction, the City may cause such work to be done and bill
the cost of the work to the Grantee, including all costs and expenses incurred
by the City due to Grantee's delay. In such event, the City shall not be liable
for any damage to any portion of Grantee's Cable System. Within thirty (30)
days of receipt of an itemized list of those costs, the Grantee shall pay
the City.
11.17 Movement of Cable System Facilities for Other
Franchise or Permit Holders
If any removal, replacement, modification or disconnection of the Cable System
is required to accommodate the construction, operation or repair of the facilities
or equipment of another City franchise or permit holder, Grantee shall, after
at least thirty (30) days' advance written notice, take action to effect the
necessary changes requested by the responsible entity. Grantee may require
that the expense of such removal, replacement, modification or disconnection
of the Cable System be paid by the benefited third party, and Grantee may
require a reasonable deposit of the estimated payment in advance.
11.18 Temporary Changes for Other Permitees
At the request of any Person holding a valid permit and upon reasonable advance
notice, Grantee shall temporarily raise, lower or remove its wires as necessary
to permit the moving of a building, vehicle, equipment or other item. Grantee
may require that the expense of such temporary changes be paid by the permit
holder, and Grantee may require a reasonable deposit of the estimated payment
in advance.
11.19 Reservation of City Use of Right-of-Way
Nothing in this Franchise shall prevent the City or public utilities owned,
maintained or operated by public entities other than the City from constructing
sewers; grading, paving, repairing or altering any Right-of-Way; repairing
or removing water mains; or constructing or establishing any other public
work or improvement. All such work shall be done, insofar as practicable,
so as not to obstruct, injure or prevent the use and operation of Grantee's
Cable System.
11.20 Tree Trimming
Grantee may prune or cause to be pruned, using proper pruning practices,
any tree in the Rights-of-Way that interferes with Grantee's Cable System.
Grantee shall comply with any general ordinance or regulations of the City
regarding tree trimming. Except in emergencies, Grantee may not prune trees
at a point below thirty (30) feet above sidewalk grade until one (1) week
written notice has been given to the owner or occupant of the premises abutting
the Right-of-Way in or over which the tree is growing. The owner or occupant
of the abutting premises may prune such tree at his or her own expense during
this one (1) week period. If the owner or occupant fails to do so, Grantee
may prune such tree at its own expense. For purposes of this subsection, emergencies
exist when it is necessary to prune to protect the public or Grantee's facilities
from imminent danger only.
11.21 Inspection of Construction and Facilities
The City may inspect any of Grantee's facilities, equipment or construction
in the Right-of-Way at any time during normal business hours upon at least
twenty-four (24) hours notice, or, in case of an emergency, at any time, upon
demand without prior notice. The City shall have the right to charge generally
applicable inspection fees therefor. If an unsafe condition is found to exist,
the City, in addition to taking any other action permitted under applicable
law, may order Grantee, in writing, to make the necessary repairs and alterations
specified therein forthwith to correct the unsafe condition by a time the
City establishes. The City has the right to correct, inspect, administer and
repair the unsafe condition if Grantee fails to do so, and to charge Grantee
therefor.
11.22 Stop Work
(A) On notice from the City that any work is being performed contrary to
the provisions of this Franchise, or in an unsafe or dangerous manner as determined
by the City, or in violation of the terms of any applicable permit, laws,
regulations, ordinances, or standards, the work may immediately be stopped
by the City.
(B) The stop work order shall:
(1) Be in writing;
(2) Be given to the Person doing the work, or posted on the work site;
(3) Be sent to Grantee by overnight delivery at the address given herein;
(4) Indicate the nature of the alleged violation or unsafe condition; and
(5) Establish conditions under which work may be resumed.
11.23 Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be licensed and bonded in
accordance with the City's ordinances, regulations and requirements. Work
by contractors and subcontractors is subject to the same restrictions, limitations
and conditions as if the work were performed by Grantee. Grantee shall be
responsible for all work performed by its contractors and subcontractors and
others performing work on its behalf as if the work were performed by it,
and shall ensure that all such work is performed in compliance with this Franchise
and applicable law, and shall be jointly and severally liable for all damages
and correcting all damage caused by them. It is Grantee's responsibility to
ensure that contractors, subcontractors or other Persons performing work on
Grantee's behalf are familiar with the requirements of this Franchise and
applicable laws governing the work performed by them.
SECTION 12. ADDITIONAL FACILITIES
12.1 Additional Ducts and Conduits
If Grantee is constructing, relocating, or placing ducts or conduits in Rights-of-Way,
it shall provide the City with additional duct or conduit and related structures
necessary to access the conduit, provided that:
(A) The City enters into a contract with the Grantee consistent with RCW
80.36.150. The contract rates to be charged should recover the Incremental
Costs of the Grantee. If the City makes the additional duct or conduit and
related access structures available to any other entity for the purposes of
providing Telecommunications Service or Cable Service for hire, sale, or resale
to the general public, the rates to be charged, as set forth in the contract
with the Grantee shall recover at least the Fully Allocated Costs of the Grantee.
The Grantee shall state both contract rates in the contract. The City shall
inform the Grantee of the use, and any change in use, of the requested duct
or conduit and related access structures to determine the applicable rate
to be paid by the City.
(B) The City shall not require that the additional duct or conduit space
be connected to the access structures and vaults of the Grantee.
(C) The value of the additional duct or conduit requested by the City shall
not be considered a public works construction contract.
(D) This section shall not affect the possible provision of an I-Net by the
Grantee as provided elsewhere in this Franchise or under federal law.
12.2 Incremental and Fully Allocated Costs
On or before Grantee's applying for a permit for any construction, relocation
or placement of ducts, conduits or related structures in Rights-of-Way, Grantee
shall notify the City of the Incremental Costs and Fully Allocated Costs of
providing the City with ducts, conduits and related structures necessary to
access the conduit or duct and of the date such construction, relocation or
placement will begin. At its sole option, the City may examine, inspect or
audit Grantee's books and records to confirm Grantee's calculation of Incremental
and Fully Allocated Costs. If Grantee and the City disagree regarding the
appropriateness of the proposed Incremental and Fully Allocated Costs, the
parties agree to negotiate. If the parties cannot reach agreement, the City
may order Grantee to proceed with the work, and a court shall determine the
actual amount of Incremental and Fully Allocated Costs.
12.3 Notification
At the City's sole option, the City may require Grantee to furnish such additional
duct or conduit and the related structures necessary to access the conduit
or duct for the Incremental Costs by so notifying Grantee no later than sixty
(60) days after the information referred to in subsection 12.2
Incremental and Fully Allocated Costs is provided by Grantee.
12.4 Standards
If the City requires Grantee to furnish additional duct, conduit or related
structures pursuant to this section, the Grantee shall construct the facilities
to the same standards as Grantee's own new facilities, and shall turn such
additional duct, conduit or related structures over to the City upon completion
of same and satisfactory inspection thereof by the City. The Grantee shall
be responsible for any required filings with State agencies or commissions.
SECTION 13. CABLE SYSTEM CONFIGURATION, TECHNICAL
STANDARDS AND TESTING
13.1 Subscriber Network
(A) Grantee shall upgrade and activate the Cable System bandwidth to a minimum
of 750 MHz and provide two-way capability throughout the Franchise Area, no
later than thirty-six (36) months from the Effective Date of this Franchise.
The Grantee intends to deploy fiber optics to nodes that serve no more than
twelve hundred (1,200) homes passed as part of the upgrade. Grantee may provide
for phased activation launches of applicable portions of the Cable System
as nodes are completed. Grantee may substitute another transmission material
and/or modify its upgrade design provided that the same technical benefits
in reliability and picture quality are attained. The Cable System shall be
capable of supporting video, audio and Cable Internet Service (to the extent
the latter is considered a Cable Service pursuant to applicable law). Upon
completion of the upgrade, the Cable System shall be capable of delivering
two hundred (200) Channels of video programming services to Subscribers, provided
that the Grantee reserves the right to use the bandwidth in the future for
other uses based on market factors.
When Grantee has completed the Cable System upgrade throughout the City,
Grantee shall send written notice to the City. The City shall have ninety
(90) days from receipt of such notice to verify the records kept by the Grantee
regarding the completion of the Cable System bandwidth expansion, and to complete
such technical inspections as may be reasonably necessary to verify that the
other components of the upgrade are complete (including, but not limited to,
construction of the Institutional Network, if applicable). The City may require
the Grantee to provide additional facts and information, in its reasonably
exercised discretion, necessary to verify the completion of the upgrade. Upon
its completion of this review and inspection, the City shall notify the Grantee
in writing of the City's position concerning the completion of the upgrade.
(B) Term Extension. Grantee shall receive a two (2) year term extension
if the Cable System upgrade is timely completed within eighteen (18) months
of the Effective Date, or a one (1) year term extension if the Cable System
upgrade is completed within twenty-four (24) months of the Effective Date.
The City shall grant the term extension contingent upon its verification of
the upgrade completion as provided above.
(C) Initial Term Reduction. If Grantee does not complete the upgrade
of the Cable System specified herein within thirty-six (36) months of the
Effective Date, then the initial ten (10) year term may be reduced, at the
discretion of the City, by up to two (2) years. The City shall provide Grantee
with written notice of its decision regarding an initial term reduction, if
applicable.
(D) Equipment must be installed so that all closed captioned programming
received by the Cable System shall include the closed caption signal so long
as the closed caption signal is provided consistent with FCC standards. Equipment
must be installed so that all signals received in stereo are retransmitted
in stereo.
(E) Grantee shall submit to the City each phase of its Cable System upgrade
design, as completed, and before construction begins on each phase, in accordance
with the City's permitting process. If Grantee claims any portion of the information
required is a business or trade secret or proprietary information and wishes
to protect such information against disclosure, then Grantee may invoke the
procedures provided for under subsection 7.2
Confidentiality of this Franchise.
(F) Grantee and the City shall meet, at the City's request, to discuss the
progress of the upgrade design plan and construction.
(G) Grantee's construction decisions shall be based solely upon legitimate
engineering decisions and shall not take into consideration the income level
of any particular community within the Franchise Area.
(H) Grantee acknowledges that the minimum Cable System design and performance
requirements set forth in this Franchise are enforceable, to the extent allowed
by law.
13.2 State of the Art
Grantee shall use its best efforts to ensure that the Cable Services that are
provided over the Cable System in the City are reasonably comparable to those
provided in other similarly situated cable systems (both regionally and nationally).
Grantee shall be responsible for generally offering such Cable Services expeditiously
and as soon as economically practical. If such Cable Services are not also being
offered on Grantee's Cable System in the City, Grantee shall explain to the
City in writing why such Cable Services are not offered in the City and shall
estimate the cost to supply such Cable Services within the Franchise Area. Grantee
shall deploy such Cable Services expeditiously, if economically practicable.
The City may hold a hearing to review whether or not the Cable System and the
Cable Services offered by the Grantee are meeting demonstrated community needs
and interests, taking into account the cost of meeting those needs and interests.
The parties recognize that, as of the Effective Date, the City is not permitted
to require the provision of specific video programming pursuant to this subsection.
13.3 Standby Power
Grantee shall provide standby power generating capacity at the Cable System
headend capable of providing at least twelve (12) hours of emergency operation.
Grantee shall maintain standby power system supplies, rated for at least two
(2) hours duration, throughout the trunk and distribution networks, and rated
for at least four (4) hours duration at all nodes and hubs. In addition, throughout
the term of this Franchise, Grantee shall have a plan in place, along with
all resources necessary for implementing such a plan, for dealing with outages
of more than two (2) hours. This outage plan and evidence of requisite implementation
resources shall be presented to the City no later than thirty (30) days following
receipt of a request therefor.
13.4 Emergency Alert Capability
(A) Grantee shall provide an operating Emergency Alert System ("EAS") in
accordance with and at the time required by the provisions of federal laws,
including FCC regulations.
(B) The City shall only permit its appropriately trained and authorized persons
to operate the EAS equipment and shall take reasonable precautions to prevent
any use of the Grantee's Cable System that in any manner results in an inappropriate
use thereof. To the extent allowed by law, the City shall hold the Grantee,
its employees and officers harmless from any claims arising out of the emergency
use of the EAS facilities by the City, including, but not limited to, reasonable
attorneys' fees and costs.
(C) Grantee shall ensure that the EAS is functioning properly at all times.
It will test the EAS periodically, in a manner consistent with sound operational
practices for emergency systems. Grantee will advise the City of the testing
schedule and the City may be present for the tests.
13.5 Technical Performance
The technical performance of the Cable System shall meet or exceed all applicable
technical standards authorized or required by law, including, without limitation,
FCC technical standards, as they may be amended from time to time, regardless
of the transmission technology utilized. The City shall have the full authority
permitted by applicable law to enforce compliance with these technical standards.
13.6 Cable System Performance Testing
(A) Grantee shall, at its expense, perform all tests on its Cable System
required by the FCC and shall maintain written records of its test results.
Copies of such test results will be provided to the City upon request.
(B) All required technical performance tests may be witnessed by representatives
of the City. Upon request, Grantee will notify the City before any required
technical proof-of-performance testing occurs.
(C) Grantee shall promptly take such measures as are necessary to correct
any performance deficiencies fully and to prevent their recurrence as far
as possible. Grantee's failure to correct deficiencies identified through
this testing process shall be a violation of this Franchise. Sites shall be
re-tested following correction.
13.7 Additional Tests
Where there exists other evidence that in the judgment of the City casts
doubt upon the reliability or technical quality of the Cable System, the City
shall have the right and authority, upon thirty (30) days prior written notice
to require Grantee to test, analyze and report on the performance of the Cable
System. Grantee shall fully cooperate with the City in performing such testing
and shall prepare the results and a report, if requested, within thirty (30)
days after testing. Such report shall include the following information:
(A) the nature of the complaint or problem which precipitated the special
tests;
(B) the Cable System component tested;
(C) the equipment used and procedures employed in testing;
(D) the method, if any, in which such complaint or problem was resolved;
and
(E) any other information pertinent to said tests and analysis which may
be required.
SECTION 14. SERVICE EXTENSION AND SERVICE TO PUBLIC
BUILDINGS
14.1 Service Availability
Subject to the density provisions described in subsection 14.1(D), Grantee
shall provide Cable Service within seven (7) days of a request by any potential
Residential Subscriber within the City. For purposes of this subsection, a request
shall be deemed made on the date of signing a service agreement, receipt of
funds by Grantee, receipt of a written request by Grantee or receipt by Grantee
of a verified verbal request. Grantee shall provide such service:
(1) With no line extension charge except as specifically authorized elsewhere
in this Franchise.
(2) At a non-discriminatory installation charge for a standard installation,
consisting of a one hundred twenty-five (125) foot aerial drop connecting
to the exterior demarcation point for Residential Subscribers, with additional
charges for non-standard installations computed according to a non-discriminatory
methodology for such installations, adopted by Grantee and provided in writing
to the City;
(3) At non-discriminatory monthly rates for Residential Subscribers.
(B) Non-discriminatory Service.
Grantee shall not arbitrarily refuse to provide Cable Service to any Person
within its Franchise Area. All Dwelling Units, Multiple Dwelling Units and commercial
establishments passed by the Cable System in the Franchise Area shall have the
same availability of Cable Service from Grantee's Cable System under non-discriminatory
rates and reasonable terms and conditions. Notwithstanding the foregoing, Grantee
may introduce new or expanded Cable Services on a geographically phased basis,
where such services require an upgrade of the Cable System.
The Grantee shall offer the individual units of a Multiple Dwelling Unit all
Cable Services offered to other Dwelling Units in the City and shall individually
wire units upon request of the property owner or renter who has been given written
authorization by the owner; provided, however, that any such offering is conditioned
upon the Grantee having legal access to said unit. Grantee may charge its customary
installation fees in connection therewith. The City acknowledges that the Grantee
cannot control the dissemination of particular Cable Services beyond the point
of demarcation at a Multiple Dwelling Unit.
No customer shall be refused service arbitrarily. However, for unusual circumstances,
such as the existence of more than one hundred twenty-five (125) feet of distance
from distribution cable to connection of service to customers, or a density
of less than twenty-five (25) residences per 5280 cable-bearing strand feet
of trunk or distribution cable, service may be made available on the basis of
a capital contribution in aid of construction, including cost of material, labor
and easements. For the purpose of determining the amount of capital contribution
in aid of construction to be borne by the Grantee and customers in the area
in which service may be expanded, the Grantee will contribute an amount equal
to the construction and other costs per mile, multiplied by a fraction whose
numerator equals the actual number of residences per 5280 cable-bearing strand
feet of its trunk or distribution cable and whose denominator equals twenty-five
(25). Customers who request service hereunder will bear the remainder of the
construction and other costs on a pro rata basis. The Grantee may require that
the payment of the capital contribution in aid of construction borne by such
potential customers be paid in advance.
14.2 Connection of Public Facilities
Grantee shall provide, without charge, one outlet of Basic Service and Expanded
Basic Service to all existing City owned (or leased) and occupied buildings,
fire stations, police stations, schools and public libraries in the City if
such locations are currently receiving any Cable Service, or to other such
locations if they are within one hundred twenty-five feet (125') of the Cable
System. In addition, Grantee shall provide, at no cost to the City or other
entity, one outlet of Basic and Expanded Basic Service to future owned (or
leased) and occupied City buildings, fire stations, police stations, schools
and public libraries upon request if the drop line to such building does not
exceed one hundred twenty-five feet (125'). If, in any instance, the City
or other entity agrees to pay the incremental cost of such drop line in excess
of one hundred twenty-five feet (125'), including the cost of such excess
labor and materials, then Grantee shall provide such free Basic and Expanded
Basic Service. Such obligation to provide free Cable Service shall not extend
to areas of City buildings where the Grantee would normally enter into a commercial
contract to provide such Cable Service (e.g., golf courses). Outlets of Basic
and Expanded Basic Service provided in accordance with this subsection may
be used to distribute Cable Services throughout such buildings, provided such
distribution can be accomplished without causing Cable System disruption and
general technical standards are maintained. Such outlets may only be used
for lawful purposes.
SECTION 15. FRANCHISE VIOLATIONS
15.1 Procedure for Remedying Non-Material Franchise
Violations
(A) If the City believes that Grantee has failed to perform any non-material
obligation under this Franchise or has failed to perform in a timely manner,
the City shall notify Grantee in writing, stating with reasonable specificity
the nature of the alleged default. Grantee shall have thirty (30) days from
the receipt of such notice to:
(1) respond to the City, contesting the City's assertion that a default
has occurred, and requesting a meeting in accordance with subsection (B),
below; or
(2) cure the default; or
(3) notify the City that Grantee cannot cure the default within the thirty
(30) days, because of the nature of the default. In the event the default
cannot be cured within thirty (30) days, Grantee shall promptly take all
reasonable steps to cure the default and notify the City in writing and
in detail as to the exact steps that will be taken and the projected completion
date. In such case, the City may set a meeting in accordance with subsection
(B) below to determine whether additional time beyond the thirty (30) days
specified above is indeed needed, and whether Grantee's proposed completion
schedule and steps are reasonable.
(B) If Grantee does not cure the alleged default within the cure period stated
above, or by the projected completion date under subsection (A)(3), or denies
the default and requests a meeting in accordance with subsection (A)(1), or
the City orders a meeting in accordance with subsection (A)(3), the City shall
set a meeting to investigate said issues and the existence of the alleged
default. The City shall notify Grantee of the meeting in writing and such
meeting shall take place no less than thirty (30) days after Grantee's receipt
of notice of the meeting. At the meeting, Grantee shall be provided an opportunity
to be heard and to present evidence in its defense.
(C) If, after the meeting, the City determines that a default exists, Grantee
and the City may agree on a plan and schedule to cure the default. Absent
such agreement, the City shall order Grantee to correct or remedy the default
or breach within fifteen (15) days or within such other reasonable timeframe
as the City shall determine. In the event Grantee does not cure within such
time to the City's reasonable satisfaction, the City may:
(1) Recommend the revocation of this Franchise pursuant to the procedures
in subsection15.2
Revocation; or
(2) Recommend any other legal or equitable remedy available under this
Franchise or any applicable law.
(D) The determination as to whether a non-material violation of this Franchise
has occurred shall be within the discretion of the City, provided that any
such determination may be subject to appeal to the City Council or review
by a court of competent jurisdiction under applicable law.
15.2 Revocation
(A) The City may revoke this Franchise and rescind all rights and privileges
associated with this Franchise in the following circumstances:
(1) If Grantee fails to perform any material obligation under this Franchise
(including, but not limited to, completion of the Cable System upgrade within
thirty-six [36] months of the Effective Date) or under any other agreement,
ordinance or document regarding the City and Grantee;
(2) If Grantee willfully fails for more than three (3) days to provide
continuous and uninterrupted Cable Service;
(3) If Grantee attempts to evade any material provision of this Franchise
or to practice any fraud or deceit upon the City or Subscribers;
(4) If Grantee becomes insolvent, or if there is an assignment for the
benefit of Grantee's creditors;
(5) If Grantee makes a material misrepresentation of fact in the application
for or negotiation of this Franchise; or
(6) If Grantee breaches a material provision of the Customer Service Standards.
(B) Prior to forfeiture or termination of the Franchise, the City shall give
written notice to the Grantee of its intent to revoke the Franchise. The notice
shall set forth the exact nature of the noncompliance. Grantee shall have
thirty (30) days from such notice to object in writing and to state its reasons
for such objection and provide any explanation. In the event the City has
not received a satisfactory response from Grantee, it may then seek a termination
of the Franchise by the City Council in accordance with this subsection.
(C) Any proceeding regarding revocation shall be conducted by the City Council
and open to the public. Grantee shall be afforded at least forty-five (45)
days prior written notice of such proceeding.
(1) At such proceeding, Grantee shall be provided a fair opportunity for
full participation, including the right to be represented by legal counsel,
to introduce evidence, and to question witnesses. A complete verbatim record
and transcript shall be made of such proceeding and the cost shall be shared
equally between the parties. The City Council shall hear any persons interested
in the revocation, and shall allow Grantee, in particular, an opportunity
to state its position on the matter.
(2) Within ninety (90) days after the hearing, the City Council shall determine
whether to revoke the Franchise; or if the breach at issue is capable of
being cured by Grantee, direct Grantee to take appropriate remedial action
within the time and in the manner and on the terms and conditions that the
City Council determines are reasonable under the circumstances. If the City
Council determines that the Franchise is to be revoked, the City Council
shall set forth the reasons for such a decision and shall transmit a copy
of the decision to the Grantee. Grantee shall be bound by the City Council's
decision to revoke the Franchise unless it appeals the decision to a court
of competent jurisdiction within thirty (30) days of the date of the decision.
(3) Grantee shall be entitled to such relief as the court may deem appropriate.
(4) The City Council may in its sole discretion take any lawful action
that it deems appropriate to enforce the City's rights under the Franchise
in lieu of revocation of the Franchise.
15.3 Procedures in the Event of Termination
(A) If this Franchise expires without renewal or is otherwise lawfully terminated
or revoked, the City may, subject to applicable law:
(1) Allow Grantee to maintain and operate its Cable System on a month-to-month
basis; or
(2) Purchase Grantee's Cable System in accordance with the procedures set
forth in subsection 15.4
Purchase of Cable System, below.
(B) The City may order the removal of the above-ground Cable System facilities
and such underground facilities from the City at Grantee's sole expense within
a reasonable period of time as determined by the City. In removing its plant,
structures and equipment, Grantee shall refill, at its own expense, any excavation
that is made by it and shall leave all Rights-of-Way, public places and private
property in as good a condition as that prevailing prior to Grantee's removal
of its equipment and without affecting the electrical or telephone wires or
attachments. The indemnification and insurance provisions and the letter of
credit, if available, shall remain in full force and effect during the period
of removal, and Grantee shall not be entitled to, and agrees not to request,
compensation of any sort therefor.
(C) If Grantee fails to complete any removal required by this subsection
15.3
Procedures in the Event of Termination to the City's satisfaction,
after written notice to Grantee, the City may cause the work to be done and
Grantee shall reimburse the City for the costs incurred within thirty (30)
days after receipt of an itemized list of the costs, or the City may recover
the costs through the letter of credit, if available, if Grantee has not paid
such amount within the foregoing time period.
(D) The City may seek legal and equitable relief to enforce the provisions
of this Franchise.
15.4 Purchase of Cable System
(A) If at any time this Franchise is lawfully revoked, terminated, or not
renewed (in accordance with federal law) or upon expiration, the City shall
have the option to purchase the Cable System.
(B) The City may, at any time after Franchise revocation, termination, expiration
or non-renewal, offer in writing to purchase Grantee's Cable System. In any
case where the City elects to purchase the Cable System, the purchase shall
be closed within one hundred twenty (120) days of the date of the City's audit
of a balance sheet and current profit and loss statement of Grantee's Cable
System. The City shall, as applicable, pay for the Cable System in cash or
certified funds, and Grantee shall deliver appropriate bills of sale and other
instruments of conveyance.
(C) For the purposes of this subsection, the price for the Cable System shall
be determined as follows:
(1) In the case of the expiration of the Franchise without renewal, at
fair market value determined on the basis of Grantee's Cable System valued
as a going concern, but with no value allocated to the Franchise itself.
In order to obtain the fair market value, this valuation shall be reduced
by the amount of any lien, encumbrance, or other obligation of Grantee that
the City may assume.
(2) In the case of revocation for cause, the equitable price of Grantee's
Cable System.
15.5 Receivership and Foreclosure
(A) At the option of the City, subject to applicable law, this Franchise
may be revoked one hundred twenty (120) days after the appointment of a receiver
or trustee to take over and conduct the business of Grantee whether in a receivership,
reorganization, bankruptcy or other action or proceeding, unless:
(1) The receivership or trusteeship is vacated within one hundred twenty
(120) days of appointment; or
(2) The receiver or trustee has, within one hundred twenty (120) days after
his/her election or appointment, fully complied with all the terms and provisions
of this Franchise, and has remedied all defaults under the Franchise. Additionally,
the receiver or trustee shall have executed an agreement duly approved by
the court having jurisdiction, by which the receiver or trustee assumes
and agrees to be bound by each and every term, provision and limitation
of this Franchise.
(B) If there is a foreclosure or other involuntary sale of the whole or any
part of the plant, property and equipment of Grantee, the City may serve notice
of revocation on Grantee and to the purchaser at the sale, and the rights
and privileges of Grantee under this Franchise shall be revoked thirty (30)
days after service of such notice, unless:
(1) The City has approved the transfer of the Franchise, in accordance
with the procedures set forth in this Franchise and as provided by law;
and
(2) The purchaser has covenanted and agreed with the City to assume and
be bound by all of the terms and conditions of this Franchise.
15.6 Alternative Remedies
No provision of this Franchise shall be deemed to bar the City or the Grantee
from seeking appropriate judicial relief. Neither the existence of other remedies
identified in this Franchise nor the exercise thereof shall be deemed to bar
or otherwise limit the right of the City to recover monetary damages for violations
by Grantee, or to seek and obtain judicial enforcement of Grantee's obligations
by means of specific performance, injunctive relief or mandate, or any other
remedy at law or in equity.
15.7 Assessment of Monetary Damages
Subject to the City's giving written notice to the Grantee and a thirty (30)
day right to cure period, the City may assess against Grantee monetary damages
up to one thousand dollars ($1,000.00) per day for failure to timely complete
the Cable System upgrade (including, if applicable, the Institutional Network)
within thirty-six (36) months of the Effective Date, two hundred fifty dollars
($250.00) per day for material departure from the FCC technical performance
standards, one hundred dollars ($100.00) per day for failure to provide the
Access Channels or any equipment related thereto which is required hereunder,
one hundred dollars ($100.00) per day for each material violation of the Customer
Service Standards, fifty dollars ($50.00) per day for failure to provide reports
or notices as required by this Franchise, and up to one hundred dollars ($100.00)
per day for any other material breaches or defaults.
15.8 Abandonment
(A) Definitions
The City may deem Grantee to have abandoned the Cable System temporarily
if the Grantee willfully fails to provide Cable Service over a substantial
portion of the Franchise Area for three (3) consecutive days. The City may
deem Grantee to have abandoned the Cable System permanently if Grantee discontinues
using the Cable System for at least one (1) year.
(B) Effect
If the Grantee temporarily abandons its Cable System at any time during the
Franchise term, the City, at its option, may: (1) operate the Cable System;
(2) designate another entity to operate the Cable System temporarily until the
Grantee restores service under conditions acceptable to the City or until the
Franchise is revoked and a new Cable Operator is selected by the City; or (3)
obtain an injunction requiring the Grantee to continue operations. If the City
is required to operate or designate another entity to operate the Cable System,
the Grantee shall reimburse the City or its designee for all reasonable costs,
expenses and damages incurred. If Grantee permanently abandons Cable System
facilities, then, at the City's sole discretion, such facilities may become
the property of the City.
SECTION 16. FRANCHISE RENEWAL AND TRANSFER
16.1 Renewal
(A) The City and Grantee agree that any proceedings undertaken by the City
that relate to the renewal of the Franchise shall be governed by and comply
with the provisions of Section 626 of the Cable Act, unless the procedures
and substantive protections set forth therein shall be deemed to be preempted
and superseded by the provisions of any subsequent provision of federal or
State law.
(B) In addition to the procedures set forth in said Section 626(a),
the City agrees to notify Grantee of the completion of its assessments regarding
the identification of future cable-related community needs and interests,
as well as the past performance of Grantee under the then current Franchise
term. Notwithstanding anything to the contrary set forth herein, Grantee and
the City agree that at any time during the term of the then current Franchise,
while affording the public adequate notice and opportunity for comment, the
City and Grantee may agree to undertake and finalize negotiations regarding
renewal of the then current Franchise and the City may grant a renewal thereof.
Grantee and the City consider the terms set forth in this subsection to be
consistent with the express provisions of Section 626 of the Cable Act.
16.2 Transfer of Ownership or Control
(A) The Cable System and this Franchise shall not be sold, assigned, transferred,
leased or disposed of, either in whole or in part, either by involuntary sale
or by voluntary sale, merger or consolidation; nor shall title thereto, either
legal or equitable, or any right, interest or property therein pass to or
vest in any Person or entity without the prior written consent of the City,
which consent shall not be unreasonably withheld.
(B) The Grantee shall promptly notify the City of any actual or proposed
change in, or transfer of, or acquisition by any other party of control of
the Grantee. The word "control" as used herein is not limited to majority
stock ownership but includes actual working control in whatever manner exercised.
Every change, transfer or acquisition of control of the Grantee shall make
this Franchise subject to cancellation unless and until the City shall have
consented in writing thereto.
(C) The parties to the sale or transfer or change in control shall make a
written request to the City for its approval of a sale or transfer or change
in control and furnish all information required by law.
(D) In seeking the City's consent to any change in ownership or control,
the proposed transferee or new controlling entity shall indicate whether,
as applicable, it:
(1) Has ever been convicted or held liable for acts involving deceit including
any violation of federal, State or local law or regulations, or is currently
under an indictment, investigation or complaint charging such acts;
(2) Has ever had a judgment in an action for fraud, deceit or misrepresentation
entered against it by any court of competent jurisdiction;
(3) Has pending any material legal claim, lawsuit or administrative proceeding
arising out of or involving a cable system;
(4) Is financially solvent, by submitting financial data including financial
statements that are audited by a certified public accountant who may also
be an officer of the transferee or new controlling entity, along with any
other data that the City may reasonably require; and
(5) Has the financial, legal and technical capability to enable it to maintain
and operate the Cable System for the remaining term of the Franchise.
(E) The City shall act on the request within one hundred twenty (120) days
of the request, provided it has received all information required by FCC Form
394 or its successor. Subject to the foregoing, if the City fails to render
a final decision on the request within one hundred twenty (120) days, such
request shall be deemed granted unless the requesting party and the City agree
to an extension of time.
(F) Within thirty (30) days of any transfer or sale or change in control,
if approved or deemed granted by the City, Grantee shall file with the City
a copy of the deed, agreement, lease or other written instrument evidencing
such sale or transfer of ownership or change in control, certified and sworn
to as correct by Grantee and the transferee or new controlling entity. In
case of a sale or transfer of ownership, the transferee shall file its written
acceptance agreeing to be bound by all of the provisions of this Franchise,
subject to applicable law. In the event of a change in control, in which the
Grantee is not replaced by another entity, the Grantee will continue to be
bound by all of the provisions of the Franchise, subject to applicable law,
and will not be required to file an additional written acceptance.
(G) In reviewing a request for sale or transfer or change in control, the
City may inquire into the legal, technical and financial qualifications of
the prospective controlling party or transferee, and Grantee shall assist
the City in so inquiring. The City may condition said sale or transfer or
change in control upon such terms and conditions as it deems reasonably appropriate;
provided, however, any such terms and conditions so attached shall be related
to the legal, technical and financial qualifications of the prospective controlling
party or transferee. Additionally, such Person shall effect changes as promptly
as practicable in the operation of the Cable System, if any changes are necessary
to cure any violations or defaults presently in effect or ongoing.
(H) Notwithstanding anything to the contrary in this subsection, the prior
approval of the City shall not be required for any sale, assignment or transfer
of the Franchise or Cable System to an intra-company Affiliate; provided that
the proposed assignee or transferee must show financial responsibility as
may be determined necessary by the City and must agree in writing to comply
with all of the provisions of the Franchise. Further, Grantee may pledge the
assets of the Cable System for the purpose of financing without the consent
of the City; provided that such pledge of assets shall not impair or mitigate
Grantee's responsibilities and capabilities to meet all of its obligations
under the provisions of this Franchise.
SECTION 17. SEVERABILITY
If any Section, subsection, paragraph or provision of this Franchise is determined
to be illegal, invalid or unconstitutional by any court or agency of competent
jurisdiction, such determination shall have no effect on the validity of any
other Section, subsection, paragraph or provision of this Franchise, all of
which will remain in full force and effect for the term of the Franchise.
SECTION 18. MISCELLANEOUS PROVISIONS
18.1 Equal Employment and Non-discrimination
Throughout the term of this Franchise, Grantee shall fully comply with all
equal employment and non-discrimination provisions and requirements of federal,
State and local laws, and in particular, FCC rules and regulations relating
thereto.
18.2 Local Employment Efforts
Grantee shall use reasonable efforts to utilize qualified local contractors,
including minority business enterprises and woman business enterprises, whenever
the Grantee employs contractors to perform work under this Franchise.
18.3 Notices
Throughout the term of the Franchise, each party shall maintain and file
with the other a local address for the service of notices by mail. All notices
shall be sent postage prepaid to such respective address and such notices
shall be effective upon the date of mailing. These addresses may be changed
by the City or the Grantee by giving written notice to the other at any time.
At the Effective Date of this Franchise:
Grantee's address shall be:
Everett Cablevision, Inc.
1525 75th St. S.W.
Everett, Washington 98203
Attention: Area Director
With a copy to:
Everett Cablevision, Inc.
22025 30th Ave. S.E.
Bothell, WA 98021
Attention: Franchising Department
The City's address shall be:
City of Everett
2930 Wetmore Avenue, Suite 10-C
Everett, Washington 98201
Attention: City Attorney
18.4 Descriptive Headings
The headings and titles of the Sections and subsections of this Franchise
are for reference purposes only, and shall not affect the meaning or interpretation
of the text herein.
18.5 Costs to be Borne by Grantee
Grantee shall be responsible for all costs of publication of this Franchise
and any and all notices prior to any public hearing in connection with this
Franchise.
18.6 Attorneys' Fees
If any action or suit arises in connection with this Franchise, the prevailing
party (either the City or Grantee, as the case may be) shall be entitled to
recover all of its reasonable attorneys' fees, costs and expenses in connection
therewith, in addition to such other relief as the court may deem proper.
18.7 Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted
successors and assigns.
18.8 Authority to Amend
3.8 Maximum Legal Compensation, this Franchise may also be amended at any time
by mutual written agreement between the parties.
18.9 Venue
Venue for any judicial dispute between the City and Grantee arising under
or out of this Franchise shall be in Snohomish County Superior Court in Everett,
Washington, or the United States District Court for the Western District of
Washington in Seattle, Washington.
18.10 Guarantee
The performance of the Grantee shall be guaranteed in all respects by TCI
Pacific Communications, Inc. A signed guarantee, in a form acceptable to the
City, shall be filed with the City contemporaneous with the Effective Date
hereof.
18.11 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent
relationship between the parties, and neither party is authorized to, nor
shall either party act toward third Persons or the public in any manner that
would indicate any such relationship with the other.
18.12 Waiver
The failure of the City at any time to require performance by the Grantee
of any provision hereof shall in no way affect the right of the City hereafter
to enforce the same, nor shall the waiver by the City of any breach of any
provision hereof be taken or held to be a waiver of any succeeding breach
of such provision, or as a waiver of the provision itself or any other provision.
18.13 Governing Laws
This Franchise shall be governed, construed and enforced in accordance with
the laws of the State of Washington (as amended), the Cable Act as amended,
any applicable rules, regulations and orders of the FCC, and any other applicable
local, State and federal laws, rules, regulations, legislation or orders (as
such now exist, are later amended or subsequently adopted).
18.14 Actions of the City or Grantee
In any action by the City or Grantee mandated or permitted under the terms
hereof, it shall act in a reasonable, expeditious and timely manner. Furthermore,
in any instance where approval or consent is required under the terms hereof,
such approval or consent shall not be unreasonably withheld.
18.15 Entire Agreement
This Franchise represents the entire understanding and agreement between
the parties hereto with respect to the subject matter hereof and supersedes
all prior oral and written negotiations between the parties.
18.16 Acceptance
Within thirty (30) days after the passage and approval of this Ordinance
by the City Council, this Franchise shall be accepted by Grantee by filing
with the City Clerk an unconditional, acknowledged written acceptance of all
of the terms and conditions of this Franchise. The failure of Grantee to file
such an acceptance within thirty (30) days of passage and approval shall be
deemed a rejection by Grantee, and the rights and privileges herein granted
shall cease after expiration of the thirty (30) day period, unless the thirty
(30) day period is extended by ordinance duly passed for that purpose.
______________________________
Edward D. Hansen, Mayor
ATTEST:
Passed:
Valid:
Published:
City Clerk Effective:
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