016-06 - Ordinance - Repaling Chapter 5.72 and Granting Franchise Agreement to Wave DivisionNOTICE OF CITY OF PORT ORCHARD
ORDINANCE
The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular
Council meeting held August 28, 2006.
ORDINANCE NO. 016-06
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, REPEALING
CHAPTER 5.72 OF THE PORT ORCHARD MUNICIPAL CODE AND GRANTING AND
RENEWING A NONEXCLUSIVE FRANCHISE TO WAVE DIVISION IV, LLC TO
CONSTRUCT, MAINTAIN, OPERATE, RECONSTRUCT, REPAIR, AND UPGRADE A
CABLE TELEVISION SYSTEM TO PROVIDE CABLE SERVICES IN, ACROSS, OVER,
ALONG, UNDER, UPON, THROUGH AND BELOW THE PUBLIC RIGHTS -OF -WAY
OF THE CITY OF PORT ORCHARD
Copies of Ordinance No. 016-06 are available for review at the office of the City Clerk of the City of Port
Orchard. Upon written request a statement of the full text of the Ordinance will be mailed to any
interested person without charge. Thirty days after publication, copies of Ordinance No. 016-06 will be
provided at a nominal charge.
City of Port Orchard
i��
ichelle Merlino
Interim City Clerk
Publish: Port Orchard Independent
September 2, 2006
KitsaPlegals[alsoundoublishina.com
ORDINANCE NO. 016-06
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
REPEALING CHAPTER 5.72 OF THE PORT ORCHARD MUNICIPAL
CODE AND GRANTING AND RENEWING A NONEXCLUSIVE
FRANCHISE TO WAVE DIVISION IV, LLC TO CONSTRUCT,
MAINTAIN, OPERATE, RECONSTRUCT, REPAIR, AND UPGRADE A
CABLE TELEVISION SYSTEM TO PROVIDE CABLE SERVICES IN,
ACROSS, OVER, ALONG, UNDER, UPON, THROUGH AND BELOW THE
PUBLIC RIGHTS -OF -WAY OF THE CITY OF PORT ORCHARD
WHEREAS, on or about March 10, 1990, the City of Port Orchard granted a cable
television franchise to Olympic Cablevision, L.P., as set forth in Ordinance NO. 1464 and codified in
Port Orchard Municipal Code Chapter 5.72; and
WHEREAS, Wave Division IV, LLC (hereinafter"Wave Broadband' has operated the
cable television franchise within the City limits as the successor to Olympic Cablevision and Charter
Communications since on or about October 2003; and
WHEREAS, the franchise under which Wave Broadband is operating is set to expire
on September 30, 2006 and the City has completed negotiations with Wave Broadband for a
franchise renewal; and
WHEREAS, the City is authorized by law to grant one or more nonexclusive
franchises to construct, operate, and maintain cable television systems within the boundaries of the
City; now, therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN
AS FOLLOWS:
SECTION 1. Repealer. Chapter 5.72 of the Port Orchard Municipal entitled "Cable TV
Franchise" is hereby repealed in its entirety.
SECTION 2. Pursuantto RCW 35.23.440(37) the City Council hereby grants and renews a
nonexclusive franchise to Wave Division IV, LLC according to the terms and conditions set forth on
Exhibit A attached hereto and incorporated by this reference.
SECTION 3. From and after the acceptance of this ordinance by Wave Broadband, the
terms and conditions of the franchise granted in Ordinance 1464, as codified in Port Orchard
Municipal Code Chapter 5.72, and as extended in Ordinance 014-06, shall thereafter have no further
application to or affect on the franchise relationship between the City and Wave Broadband.
SECTION 4. If any section, sentence, clause, or phrase of this ordinance should be held to
be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or
Ordinance No.016-06
Page 2 of 2
unconstitutionality shall not affect the validity of any other section, sentence, clause, or phrase of
this ordinance.
SECTION S. This ordinance shall be in full force and effect five (5) days after posting and
publication as required by law, provided, that the franchise granted by this ordinance shall terminate
and be of no further affect unless accepted and approved by Wave Broadband within forty-five (45)
days of the date this ordinance is passed. Said acceptance approval shall be in writing and shall be
signified by the signature of Wave Broadband on a copy of this ordinance as provided in Exhibit A.
A summary of this Ordinance may be published in lieu of the entire ordinance, as authorized by
State Law.
PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and
attested by the Clerk in authentication of such passage this 28th day of September 2006.
ATTEST:
Michelle Merlino, Interim City Clerk
APPROVED AS TO FORM:
Pori,
.'v !P5 . ,
KIM E. ABEL, MAYOR
Sponsored by:
Fred Chang, Councilman
CABLE TELEVISION FRANCHISE
This Cable Television Franchise is entered into in Port Orchard, Washington,
this 28t" day of August, 2006, by and between The City of Port Orchard, Washington
a municipal corporation, hereinafter ("Grantor" or the "City") and Wave Division IV,
LLC, hereinafter ("Operator" or "Operator"). City and Operator are sometimes
referred to hereinafter collectively as the "parties."
WHEREAS, the City has reviewed Operator's performance under the prior
franchise and the quality of service during the prior franchise term, has identified the
future cable -related needs and interests of the City and its citizens, has considered
the financial, technical and legal qualifications of Operator, and has determined that
Operator's plans for constructing, operating and maintaining its System are
adequate, in a full public proceeding affording due process to all parties; and
WHEREAS, the public has had adequate notice and opportunity to comment
on Operator's proposal to provide cable television service within the City; and
WHEREAS, the City has a legitimate and necessary regulatory role in
ensuring the availability of state-of-the-art cable communications service, high
technical capability and reliability of Systems in its jurisdiction, the availability of local
programming (including educational and governmental access programming) and
quality customer service; and
WHEREAS, diversity in cable service and local and non -local programming is
an important policy goal and the Operator's System should offer a wide range of
programming services; and
WHEREAS, flexibility to respond to changes in technology, subscriber
interests and competitive factors within the cable service market should be an
essential characteristic of this Franchise and both the City and the Operator will
address maximum system flexibility to take advantage of new technology to benefit
subscribers and citizens as such technology becomes available; and
WHEREAS, the City is authorized by applicable law to grant one or more
nonexclusive franchises to construct, operate and maintain cable television systems
within the boundaries of the City.
NOW, THEREFORE, in consideration of the mutual promises made herein,
and other good and valuable consideration as provided herein, the receipt and
adequacy of which are hereby acknowledged, City and Operator do hereby agree as
follows:
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SECTION 1. DEFINITIONS
For the purposes of this Franchise and all Exhibits attached hereto the following
terms, phrases, words and their derivations shall have the meanings 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.
"Access" includes Educational Access, Governmental Access and Public Access,
collectively, and means the availability for Noncommercial use by various
governmental and educational agencies, institutions, organizations, groups and
individuals in the community, including City and its designees, of particular channels
on the System to receive and distribute Video Programming to Subscribers, 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) "Governmental Access" means Access where governmental institutions
or their designees are the primary users having editorial control over programming
and services; and
(C) 'Public Access" means Access where the public is the primary user.
"Access Channel" means any Channel, or portion thereof, designated for
Noncommercial Access purposes or otherwise made available to facilitate or transmit
Access programming.
"Activation" or "Activated" means the status of any capacity on or part of the System
wherein the use of that capacity or part thereof may be made available without further
installation of system equipment other than Subscriber premise equipment, whether
hardware or software.
"Affiliated Entity" or "Affiliate" when used in connection with Operator means any
Person who owns or controls, is owned or controlled by, or is under common
ownership or control with Operator.
'Bad Debt' means amounts lawfully owed by a Subscriber and accrued as revenues
on the books of Operator, but not collected after reasonable efforts by Operator.
"Basic Service" means any Cable Service tier which includes, at a minimum, the
retransmission of local television Broadcast Signals and Access programming.
'Broadcast Signal' means a television or radio signal transmitted over the air to a
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wide geographic audience, and received by a System off -the -air by antenna,
microwave, satellite dishes or any other means.
"Cable Acts" means the Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection and Competition Act of 1992, and as
amended by the Telecommunications Act of 1996, and any amendments thereto.
"Cable Modem Service" or "Cable Internet Service" means any Cable Service offered
by Operator whereby Persons receive access to the Internet through the Cable
System.
"Cable Operator" means any Person or group of Persons, including Operator, who
provides Cable Service over the System and directly or through one or more Affiliates
owns a significant interest in such System or who otherwise control(s) or is (are)
responsible for, through any arrangement, the management and operation of the
System.
"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.
"Channel" means a portion of the frequency band capable of carrying a Video
Programming Service or combination of Video Programming Services, whether by
analog or digital signal, on a twenty-four (24) hour per day basis or a portion thereof.
"City" or "Grantor" means the City of Port Orchard, Washington, a municipal
corporation, of the State of Washington.
"Designated Access Provider" means the entity or entities designated by the City to
manage or co -manage Educational, Governmental, or Public Access Channels and
facilities. The City may be a Designated Access Provider.
'Downstream Channel' means a Channel capable of carrying a transmission from
the Headend to remote points on the System or to interconnection points on the
System.
'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.
"Expanded Basic Service" means cable programming services not included in the
Basic Service and excluding premium or pay -per -view services.
"FCC" means the Federal Communications Commission or its lawful successor
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"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 pulses.
"Franchise" means the document in which this definition appears, which is executed
between City and Operator, containing the specific provisions of the authorization
granted and the contractual and regulatory agreement created hereby.
"Franchise Area" means the area within the jurisdictional boundaries of the City,
including any areas annexed by City during the term of this Franchise.
"Franchise Fee" includes any tax, fee or assessment of any kind imposed by the City
on the Operator or Subscribers, or both solely because of their status as such. The
term Franchise Fee does not include:
(A) Any tax, fee or assessment of general applicability;
(B) Capital costs which are required by the Franchise to be incurred by the
Operator for public, educational or governmental access facilities.
(C) Requirements or charges incidental to the awarding or enforcing of the
Franchise, including but not limited to, payments for bonds, letters of credit,
insurance, indemnification, penalties or liquidated damages; or
(D) Any fee imposed under Title 17, United States Code.
"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 Operator for the City alongside or
together with ducts, conduit or structures by and for Operator.
"Grantor" means the City of Port Orchard.
"Gross Revenues" means any and all revenue derived directly or indirectly by
Operator, or by Operator's Affiliates or by any other entity that is a Cable Operator of
the Cable System including Operator's Affiliates, from the operation of the Operator's
Cable System to provide Cable Services in the Franchise Area. Gross Revenues
include, by way of illustration and not limitation, monthly and other fees charged
Subscribers for Cable Services including Basic Service, any expanded tiers of Cable
Service, other tiers of Cable Service, optional Premium Cable Services, Cable
Service 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 Operator from programmers for carriage of Cable
Services on the Cable System and recognized as revenue under generally accepted
me
accounting principles (GAAP), revenues from rentals of converters or other Cable
System equipment, advertising sales revenues (including local, regional and a pro
rata share of national advertising carried on the Cable System in the Franchise Area),
the fair market value of consideration received by the Operator for use of the Cable
System to provide Cable Service and accounted for as revenue under GAAP,
revenues from program guides, additional outlet fees, revenue from Cable Internet
Service to the extent this service is considered a Cable Service under federal or state
law, Franchise Fees, revenue from interactive services to the extent they are
considered Cable Services under federal or state law, revenue from the sale or
carriage of other Cable Services, and revenues from home shopping. Gross
Revenues shall include revenue received by any entity other than the Operator
where necessary to prevent evasion or avoidance of the obligation under this
Franchise to pay the Franchise Fees. Gross Revenues shall not include (i) 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 (ii) any taxes on services furnished by the Operator which are imposed directly on
any Subscriber or user by the State, City or other governmental unit and which are
collected by the Operator on behalf of said governmental unit; The Franchise Fees
are not a tax, and are therefore included in Gross Revenues.
"Headend" or "Hub" means any Facility for signal reception and dissemination on a
System, including cable, antennas, wires, satellite dishes, monitors, switchers,
modulators, processors for Broadcast Signals or other signals, equipment for the
interconnection of the System with adjacent Systems and interconnection of any
networks which are part of the System, and all other related equipment and Facilities.
"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 Operator for the City excluding the costs of design, trenching, boring,
pipe bedding, backfilling, compacting, restoring the surface, installation and other
charges, costs or expenses that Operator would otherwise incur to construct, relocate
or place ducts, conduit or related structures for the Operator.
"Institutional Network" or "I -Net' means that part of the System facilities or capacity
designed for use by non-residential Subscribers including communications to, from
and among government agencies, schools, libraries and other public agencies.
'Interconnect' or 'Interconnection" means the linking of Access Channels with
access channels carried on a geographically contiguous cable system, including
technical, engineering, physical, financial and other necessary components to
accomplish, complete and adequately maintain such linking, in a manner to permit
the transmission and receiving of electronic or optical signals between the System
and other Systems; or to permit the necessary components to accomplish, complete
and adequately maintain pathways that permit the transmission and receiving of
electronic or optical signals between locations connected to portions of the System
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outside the Franchise Area and those portions of the System inside the Franchise
Area.
"Leased Access Channel" means any Channel or portion of a Channel commercially
available for programming in accordance with Section 612 of the Cable Act.
"Locally Scheduled Programming" means Government Access or Educational
Access programming that is created by the City or any School including edited
coverage of live programming. Such locally scheduled original programming shall not
be considered as qualifying as such after three (3) cablecasts (initial, first repeat and
second repeat). Automated video programming filler, such as cablecasts of highways
and roads, does not constitute locally scheduled original programming.
"Noncommercial" means, in the context of Access Channels, that particular products
and services are not promoted or sold. This term shall not be interpreted to prohibit
an Access Channel operator or programmer from soliciting and receiving financial
support to produce and transmit video programming on an Access Channel, or from
acknowledging a contribution, in the manner of the Corporation for Public
Broadcasting or some similar manner, subject to applicable law.
"Normal Business Hours" means at a minimum those hours from 8:30 a.m. to 5:30
p.m. Monday through Friday.
"Normal Operating Conditions" means those service conditions that are within the
control of the Operator. Those conditions which are not within the control of the
Operator include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions.
Those conditions which are ordinarily within the control of the Operator include, but
are not limited to, special promotions, pay -per -view events, rate increases, regular
peak or seasonal demand periods and maintenance or upgrade of the System.
"Operator" means Wave Division IV, LLC, and its lawful successors, transferees, and
assigns.
"Pay Service" or "Premium Service" means Video Programming or other
programming service choices (such as movie channels or pay -per -view programs)
offered to Subscribers on a per -channel, per -program or per -event basis.
"Person" means any natural person, sole proprietorship, partnership, joint venture,
association, or limited liability entity or corporation, or any other form of entity or
organization.
"Qualified I -Net Users" means (i) the users identified by City; (ii) other governmental
agencies and Schools; and (iii) other entities that Operator and City agree may use
the I -Net.
so
"Rights -of -Way" means land acquired or dedicated to the public or hereafter acquired
or dedicated to the public and maintained under public authority or by others,
including but not limited to public streets or roads, highways, avenues, lanes, alleys,
bridges, sidewalks, easements and similar public property located within the
Franchise Area.
"School" means any State accredited K-12 public or private educational institution.
"Service Interruption" means the loss of picture or sound on one or more cable
channels.
"State" means the State of Washington
"Street" means Rights -of -Way.
"Subscriber" or "Customer" means any Person who lawfully receives Cable Services
provided by Operator by means of the System with Operator's express permission.
"System" or "Cable System" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception and control
equipment that is designed to provide Cable Service which includes Video
Programming and which is provided to multiple Subscribers within a community, but
such term does not include (1) a facility that serves only to retransmit the television
signals of one or more television broadcast stations; (2) a facility that serves
Subscribers without using any public right-of-way; (3) a facility of a common carrier
which is subject, in whole or in part, to the provisions of Title II of the federal
Communications Act (47 U.S.C. Section 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.
Section 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; (4) an open video system that complies with
Section 653 of the Cable Act; or (5) any facilities of any electric utility used solely for
operating its electric utility systems. When used herein, the term "Cable System" or
"System" shall mean Operator's Cable System in the Franchise Area unless the
context indicates otherwise.
"Tier" means a category of Cable Services provided by the Operator for which a
separate rate is charged.
"Upstream Channel" means a Channel capable of carrying a transmission to the
Headend from remote points on the System or from Interconnection points on the
System.
"Video Programming" means programming provided by, or generally considered
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comparable to programming provided by, a television broadcast station.
SECTION 2. GRANT OF FRANCHISE
2.1 Grant
(A) City hereby grants to Operator a nonexclusive authorization to make
reasonable and lawful use of the Rights -of -Way within the Franchise Area to
construct, operate, maintain, reconstruct, repair and upgrade a System for the
purpose of providing Cable Services, subject to the terms and conditions set forth in
this Franchise, and applicable law, construction codes, and regulations. This
Franchise shall constitute both a right and an obligation to provide the Cable
Services required by, and to fulfill the obligations set forth in, the provisions of this
Franchise.
(B) Nothing in this Franchise shall be deemed to waive the requirements of
the other codes and ordinances of general applicability lawfully enacted, or hereafter
lawfully enacted, by the City to the extent that the provisions of the codes and
ordinances do not have the effect of materially limiting the benefits or materially
expanding the obligations of the Operator that are granted by this Franchise.
Operator reserves the right to challenge provisions of any ordinance adopted after
the effective date of this Franchise that conflicts with rights granted herein.
(C) This Franchise shall not be interpreted to prevent the City from
imposing other conditions, to the extent permitted by law, including additional
compensation conditions for use of the Rights -of -Way, should Operator provide
service other than Cable Service.
(D) Operator promises and guarantees, as a condition of exercising the
privileges granted by this Franchise, that any Affiliate of the Operator that is a Cable
Operator of the Cable System in the Franchise Area, or directly involved in the
management or operation of the System in the Franchise Area, will comply with the
terms and conditions of this Franchise.
(E) No rights shall pass to Operator by implication.
(F) This Franchise is intended to convey limited rights and interests only as
to those Rights -of -Ways in which the City has an actual interest. It is not a warranty
of title or interest in any Rights -of -Way; it does not provide the Operator with any
interest in any particular location within the Rights -of -Way; and it does not confer
rights other than as expressly provided in the grant hereof.
(G) 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
Operator 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 Operator 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 Operator 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 Operator 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, Operator may erect,
install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon,
across, through, below and along the Rights -of -Way within the Franchise Area, such
wires, cables (both coaxial and fiber optic), conductors, ducts, conduit, vaults,
manholes, amplifiers, appliances, pedestals, attachments and other property and
equipment as are necessary and appurtenant to the operation of a System for the
provision of Cable Services within the Franchise Area. Operator shall comply with all
applicable construction codes, laws, ordinances, regulations and procedures now in
effect or enacted hereafter regarding placement and installation of System facilities in
the Rights -of Way.
(B) Operator must follow City -established requirements regarding
placement of System facilities in Rights -of -Way, including the specific location of
facilities in the Rights -of -Way, and must in any event install 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. The City may
require that 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 Operator 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 City, or which is installed without prior City approval of
the time, place or manner of installation and charge Operator for all the costs
associated with removal; and City may require Operator to cooperate with others to
minimize adverse impacts on the Rights -of -Way through joint trenching and other
arrangements. Operator shall assume its costs associated with any requirement of
City in the exercise of its police powers, to relocate its System facilities located in the
Rights -of -Way.
2.3 Duration
(A) The term of this Franchise and all rights, privileges, obligations and
restrictions pertaining thereto shall be four (4) years from the effective date of this
Franchise, unless terminated sooner as hereinafter provided.
(B) At the end of said 4 year term, this Franchise may be extended for an
additional five (5) years upon the written agreement of both the City and the
Operator.
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(C) It is the City's desire that the term of this Agreement be extended for
more than five (5) years so that it runs concurrently with the cable television franchise
to be negotiated between Operator and Kitsap County in 2009. Therefore, upon the
agreement of both the City and the Operator, and subject to a written amendment as
provided in Section 20.4, the parties may elect in the future to extend the term of this
Franchise for a period greater than the nine years provided for in Subsections A and
B above.
2.4 Effective Date
(A) This Franchise and the rights, privileges, and authority granted
hereunder and the contractual relationship established hereby shall take effect and
be in force from and after the effective date of this Franchise as specified in this
Section.
(B) Within forty-five (45) days after the effective date of the Ordinance
granting this Franchise, Operator shall signify its acceptance of this Franchise by
executing a written acceptance of this Franchise. This Franchise is voidable unless
accepted in writing by Operator within this timeframe.
(C) The effective date of this Franchise shall be the date on which the
Operator accepts it in writing.
(D) The grant of this Franchise shall have no effect on the Operator's duty
under the prior franchise or any ordinance in effect prior to the effective date of this
Franchise to indemnify or insure the City against acts and omissions occurring during
the period that the prior franchise was in effect, nor shall it have any affect upon
liability to pay all Franchise Fees which were due and owed under a prior franchise or
ordinance.
2.5 Franchise Nonexclusive
This Franchise shall be nonexclusive, and subject to all prior rights, interests,
easements or licenses granted by City or its predecessors to any Person to use any
property, Right -of -Way, easement, right, interest or license for any purpose
whatsoever, including the right of City to use same for any purpose it deems fit,
including the same or similar purposes allowed Operator hereunder. City may at any
time grant authorization to use the Rights -of -Way for any purpose not incompatible
with Operator's authority under this Franchise and for such additional franchises for
Cable Systems as City deems appropriate.
2.6 Grant of Other Franchises
In the event City enters into a franchise, permit, license, authorization or other
agreement of any kind with any other Person or entity other than the Operator,
including itself, to enter into the City's Streets or Rights -of -Way for the purpose of
constructing or operating a System or providing Cable Service to any part of the
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Franchise Area in which the Operator is providing Cable Service under the terms and
conditions of this Franchise or is required to extend Cable Service under the
provisions of this Franchise, the terms and conditions thereof, taken as a whole, shall
be neither more favorable nor less burdensome to such Person or entity than those
contained herein in order that one Cable Operator not be granted an unfair
competitive advantage over another.
2.7 Familiarity with Franchise
The Operator acknowledges and warrants by acceptance of the rights, privileges and
agreement 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 reasonable risks
of the meaning of the provisions, terms and conditions herein. The Operator further
acknowledges and states that it has fully studied and considered the requirements
and provisions of this Franchise, and finds that the same are commercially
practicable at this time and consistent with all local, state and federal laws and
regulations currently in effect, including the Cable Acts.
2.8 Effect of Acceptance
By accepting the Franchise, the Operator: (1) acknowledges and accepts the City's
legal right to issue and enforce the Franchise; (2) agrees that it will not oppose the
City's intervening in any legal or regulatory proceeding affecting the System; (3)
accepts and agrees to comply with each and every provision of this Franchise subject
to applicable law; and (4) 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.
2.9 Police Powers
Operator's rights hereunder are subject to the police powers of City to adopt and
enforce ordinances necessary to the safety, health and welfare of the public, and
Operator agrees to comply with all applicable laws, ordinances and regulations
lawfully enacted pursuant to the police powers of City, or hereafter enacted in
accordance therewith, by City or any other legally constituted governmental unit
having lawful jurisdiction over the subject matter hereof. The City reserves the right to
exercise its police powers, notwithstanding anything in this Franchise to the contrary.
Any conflict between the provisions of this Franchise and any other present or future
lawful exercise of City's police powers shall be resolved in favor of the latter.
2.10 Franchise Area
Operator shall provide Cable Services, as authorized under this Franchise, within the
Franchise Area.
SECTION 3. APPLICATION FEE, FRANCHISE FEE, AND FINANCIAL CONTROLS
3.1 Application Fee
The Operator shall pay a non-refundable filing fee of ten thousand dollars ($10,000),
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which shall be payable to the City as follows: five thousand dollars ($5,000) shall be
paid on or before the effective date of this Agreement and if the franchise term is
extended, the balance shall be paid on the effective date of the extension. In the
event, the franchise term is not extended, the Operator shall not be obligated to
make the second five thousand dollar ($5,000) payment. This fee is not in lieu of
Franchise Fees or other contributions to the City.
3.2 Franchise Costs
Upon Operator's acceptance of this Franchise, Operator shall pay to the City the
City's out-of-pocket costs associated with the Franchising process. Costs may
include such items as legal and/or consultant fees and expenses, as well as the cost
of publishing notices and ordinances. Operator's share of such expenses shall not
exceed Twenty Thousand Dollars ($20,000). The application fee described in Section
3.1 above shall be deducted from this amount. Such payment is not to be considered
in lieu of Franchise Fee payments.
3.3 Franchise Fee
As compensation for the use of City's Rights -of -Way, Operator shall pay as a
Franchise Fee to City, throughout the duration of this Franchise, an amount equal to
five percent (5%) of Operator's Gross Revenues. Accrual of such Franchise Fee shall
commence as of the effective date of this Franchise.
3.4 Payments; Quarterly Franchise Fee Reports
Operator's Franchise Fee payments to City shall be computed quarterly for the
preceding calendar quarter ending March 31, June 30, September 30, and December
31. Each quarterly payment shall be due and payable no later than thirty (30) days
after said dates and shall be accompanied by a written financial report to City,
verified by an officer of Operator, showing the basis for the Operator's computation of
the quarterly franchise fee and separately indicating revenues received by the
Operator within the city from basic and expanded service, pay TV service, other
applicable sources of revenue, and such other information directly related to
confirming the amount of Operator's Gross Revenues as may be reasonably required
by the City. No acceptance of any payment shall be construed as an accord by 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 City may have for further or
additional sums payable or for the performance of any other obligation of Operator.
The period of limitation for recovery of Franchise Fees payable hereunder shall be six
(6) years from the date on which payment by the Operator was due.
3.5 Financial Records
Operator agrees to meet with the City upon request to review Operator'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 that are relevant to the enforcement of
this Franchise.
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3.6 Audits
Upon thirty (30) days' prior written notice, City shall have the right to conduct an
independent annual audit of Operator's records necessary to enforce compliance
with this Franchise and to calculate any amounts determined to be payable. Provided
Operator cooperates in making all relevant records available, City will in good faith
attempt to complete each audit within six (6) months, and the audit period shall not
be any greater than the previous three (3) years. Additional amounts due to the City
as a result of the audit shall be paid within sixty (60) days following written notice,
which shall include a copy of the audit findings. If the audit shows that Franchise
Fees have been underpaid, by five percent (5%) in a calendar year or more, Operator
shall pay the total cost of the audit.
3.7 Interest on Late Payments
In the event any payment is not received within thirty (30) days from the end of the
calendar quarter, Operator shall pay, in addition to the payment or sum due, interest
from the due date at the interest rate of one percent (1 %), beginning on the thirty-first
(31s) day after the end of the calendar quarter and continuing every day thereafter,
until the date the City receives the payment.
3.8 Maximum Franchise Fee
The parties acknowledge that, at present, applicable federal law limits City to
collection of a Franchise Fee of five percent (5%) of Gross Revenues in any twelve
(12) month period. In the event that at any time throughout the term of this Franchise,
City is authorized to collect an amount in excess of five percent (5%) of Gross
Revenues, then City may amend this Franchise unilaterally to provide that such
excess amount shall be added to the Franchise Fee, provided that all franchised
cable operators in the Franchise Area are treated in an equivalent manner and
Operator has received sixty (60) days prior written notice from City of such
amendment.
3.9 Additional Commitments Not Franchise Fees
No term or condition in this Franchise shall in any way modify or affect Operator'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 Operator's Gross Revenues in any 12-month period,
Operator agrees that the additional commitments are excluded from the definition of
Franchise Fees and are not to be offset or credited against any Franchise Fee
payments due to City, nor do they represent an increase in Franchise Fees to be
passed through to Subscribers pursuant to any federal law. Access Fees are not to
be offset against and are not Franchise Fees. Furthermore, there shall be no offset
against Franchise Fees fof any utility tax, business and occupation tax or similar tax
and that is of general applicability.
3.10 Payment on Termination
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If this Franchise is terminated for any reason, the Operator 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 Operator since the end of the previous fiscal year. Within forty-five
(45) days of the filing, Operator shall pay all unpaid amounts. If the Operator falls to
satisfy its remaining financial obligations as required in this Franchise, the City may
do so by utilizing the funds available in a Letter of Credit or other security provided by
the Operator.
3.11 Duty to Cooperate and Payment Indemnification
City agrees to exercise prompt and diligent efforts to verify whether billing addresses
are in or outside the Franchise Area upon the written request of Operator. Operator
agrees to defend, indemnify and hold harmless City and its officers, officials, and
agents from any claim of any kind brought by any person relating to payments made
to City pursuant to this Franchise.
3.12 Franchise Fee and Taxes on Retail Cable Modem Services
(A) City and Operator agree that revenue derived by Operator for the provision
of retail cable modem service to customers within the Franchise area is not presently
subject to City's Franchise Fee due to the U.S. Supreme Court's decision in National
Cable & Telecomms. Assn vs. Brand X Internet Servs., __ U.S. ___, 125 S. Ct.
2688, 2696, 162 L .Ed.2d 820 (2005), which held that retail cable modem service is
an information service and not a telecommunications service, and therefore
municipalities may not seek compensation for the use of the public rights of way by
companies that provide information services.
(B) In the event that a development in federal statutory, regulatory or case law
permits City to lawfully collect a franchise fee on any or all of the revenue derived by
Operator for the provision of retail cable modem services to customers within the
Franchise Area, City shall notify Operator in writing of such a determination. The
definition of Gross Revenue contained herein shall be immediately amended to
include all, or that portion of the Gross Revenue that City believes may lawfully be
subject to City's Franchise Fee. City shall provide Operator with the additional gross
revenue language pertaining to retail cable modem service. (C) Sixty (60) days after
receipt of such notification and language from City, Operator shall commence to
collect the Franchise Fee on retail cable modem service and remit it to City as
provided for elsewhere in this Franchise.
SECTION 4. ADMINISTRATION AND REGULATION
City shall be vested with the power and right to administer and enforce the
requirements of this Franchise and the regulations and requirements of applicable
law, including the Cable Acts, or to delegate that power and right of administration, or
any part thereof, to the extent permitted under federal, state and local law, to any
agent in the sole discretion of the City.
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4.1 Rates and Charges
(A) Operator shall comply with applicable laws regarding the setting of all rates
and charges for Cable Services and cross subsidization. All Operator rates and
charges related to or regarding Cable Services shall be on file with City and subject
to regulation by City to the full extent authorized by applicable federal, State and local
laws.
(B) Operator need not file rates and charges under temporary reductions or
waivers of rates and charges in conjunction with promotional campaigns. Rates shall
only be considered temporary if applicable over a period less than twelve (12)
consecutive months (or such other period as may be approved by City).
(C) On an annual basis, Operator shall provide a complete schedule of current
rates and charges for Leased Access Channels, or portions of such Channels,
provided by Operator. The schedule shall include a description of the price, terms
and conditions established by Operator for Leased Access Channels.
4.2 No Rate Discrimination
All Operator rates and charges shall be published (in the form of a publicly available
rate card), made available to the public, and shall be non-discriminatory as to all
Persons of similar classes, under similar circumstances and conditions. Operator
shall apply its rates in accordance with governing law. Operator shall permit
Subscribers to make any in -residence connections for Cable Service the Subscriber
chooses without additional charge and without penalizing the Subscriber therefore. If
any in -home connection requires service from Operator due to signal quality, signal
leakage (without penalty operator may disconnect service to avoid interference due
to signal leakage) or other factors, caused by improper installation of such in -home
wiring or faulty materials of such in -home wiring, the Subscriber may be charged
appropriate service charges by Operator. Nothing herein shall be construed to
prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction
with promotional campaigns;
(B) The offering of reasonable discounts to similarly situated Persons;
(C) The offering of rate discounts for either Cable Service generally, or data
transmission to governmental agencies or educational institutions; or
(D) The offering of bulk discounts for Multiple Dwelling Units.
(E) The Operator shall offer a discount to those Subscribers who are aged
61 years or older or who are permanently disabled, provided they are the legal owner
or lessee/tenant of their residence and their combined disposable annual income is
$30,000 or less (as calculated and defined by the Kitsap County Assessor's office for
property tax exemption purposes). Such discounts shall consist of thirty percent
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(30%) off of Basic or the Basic portion of Expanded Basic when not discounted by
inclusion in other promotional or programming package rates, at which time the
promotional or programming package rate will apply. The City shall be responsible for
certifying to the Operator that any such Subscriber meets the specified criteria.
4.3 Late Fees
If the Operator assesses any kind of fee for late payment, such fee shall comply with
applicable law.
4.4 Time Limits Strictly Construed
Whenever this Franchise sets forth a time for any act to be performed by Operator,
such time shall be deemed to be of the essence, and any failure of Operator to
perform within the allotted time may be considered a material breach of this
Franchise. However, in the event Operator is prevented or delayed in the
performance of any of its obligations under this Franchise by reason beyond the
reasonable control of Operator, Operator shall have a reasonable time, under the
circumstances, to perform the affected obligation or to procure a substitute that is
satisfactory to City.
4.5 Performance Evaluation
(A) During the term of this Franchise, the City may hold special evaluation
sessions to discuss issues, including but not limited to, Cable Service rates;
Franchise Fees; liquidated damages; free or discounted Cable Services; application
of new technologies; system performance; Cable Services provided; programming
offered; customer complaints; privacy; amendments to this Franchise; judicial and
FCC rulings; line extension policies; and City's or Operator's rules; provided that
nothing in this subsection shall be construed as requiring the renegotiation of this
Franchise or any term or provision therein.
(B) Operator shall fully cooperate with City and shall provide such
information and documents as City may require under Section 7 of the Franchise, to
perform the evaluation.
(C) All evaluation sessions shall be open to the public and announced at
least one week in advance in a newspaper of general circulation in the Franchise
Area.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
(A) General Indemnification. Operator shall indemnify, defend and hold
City, its officers, officials, boards, commissions, authorized agents and employees,
harmless from any third party action or claim for injury, damage, loss, liability, cost or
expense, including court and appeal costs and attorneys' fees and expenses, arising
from any casualty or accident to Person or property, including, without limitation,
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copyright infringement, defamation, and all other damages in any way arising out of,
or by reason of, any construction, excavation, operation, maintenance,
reconstruction, or any other act done under this Franchise, by or for Operator, its
authorized agents, or its employees, or by reason of any neglect or omission of
Operator its authorized agents or its employees. Operator shall consult and
cooperate with the City while conducting its defense of the City.
(B) Indemnification for Relocation. Operator shall indemnify City for any
damages, claims, additional costs or expenses assessed against, or payable by, City
related to, arising solely out of, or resulting solely from Operator's failure to remove,
adjust or relocate any of its facilities in the Rights -of -Way in a timely manner in
accordance with any relocation required by City.
(C) Additional Circumstances. Operator shall also indemnify, defend and
hold City harmless for any claim for injury, damage, loss, liability, cost or expense,
including court and appeal costs and attorneys' fees or expenses in any way arising
out of:
(1) The grant of this Franchise; or
(2) Any failure by Operator to secure consents from the owners,
authorized distributors or licensees/licensors of programs to be delivered by the
System.
(D) Procedures and Defense. If a claim or action arises, City or any other
indemnified party shall tender the defense of the claim or action to Operator, which
defense shall be at Operator's expense. City may participate in the defense of a
claim and, in any event, Operator may not agree to any settlement of claims
financially affecting City without City's written approval, which shall not be
unreasonably withheld.
(E) Duty of Defense. The fact that Operator carries out any activities under
this Franchise through independent contractors shall not constitute an avoidance of
or defense to Operator's duty of defense and indemnification under this Section.
(F) Duty to Give Notice, The City shall give the Operator timely written
notice of any claim or of the commencement of any action, suit or other proceeding
covered by the indemnity in this Section. In the event any such claim arises, the City
or any other indemnified party shall tender the defense to the Operator and the
Operator shall have the obligation and duty to defend any claims arising thereunder,
and the City shall cooperate fully.
(G) Separate Representation. If the parties reasonably agree, separate
representation to fully protect the interests of both parties is necessary, such as a
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conflict of interest between the City and the counsel selected by Operator to
represent the City, Operator shall pay attorneys' fees and expenses incurred by the
City in defending itself with regard to any action, suit or proceeding indemnified by
Operator. The City's fees and expenses shall include all out-of-pocket expenses,
such as consultants' fees, and shall also include the reasonable value of any services
rendered by the City Attorney or his/her assistants or any employees of the City or its
agents but shall not include outside attorneys' fees for services that are
unnecessarily duplicative of services provided the City by Operator.
5.2 Insurance Requirements
(A) General Requirement. Operator must have adequate insurance during
the entire term of this Franchise to protect the City against claims for injuries to
Persons or damages to property which in any way relate to, arise from or are
connected with this Franchise, or involve Operator, its agents, representatives,
contractors, subcontractors and their employees.
(B) Initial Insurance Limits. Operator must maintain during the Franchise
term and for a period of twelve (12) months after expiration, termination or
nonrenewal thereof, insurance in effect in accordance with the minimum insurance
limits herein set forth by the City from time to time. The Operator shall obtain policies
for the following initial minimum insurance limits:
(1) Commercial General Liability: Two million five hundred thousand
dollars ($2,500,000) aggregate limit per occurrence for bodily injury, personal
injury and property damage;
(2) Automobile Liability: Two million dollars ($2,000,000) combined
single limit per accident for bodily injury and property damage; and
(3) Workers Compensation Insurance in accordance with state law
requirements.
(4) The amounts listed above are the minimum deemed necessary
by City to protect City's interests in this matter. City has made no
recommendation to the Operator as to the insurance necessary to protect
Operator's interests and any decision by the Operator to carry or not carry
insurance amounts in excess of the above is solely that of the Operator.
Operator shall be responsible for judgments, settlements, damages, costs,
attorneys' fees and expenses that exceed limits of Operator's insurance
coverage.
(C). Endorsements.
(1) All policies shall contain, or shall be endorsed so that:
in
(a) The City shall be designated as additional insured.
(b) The Operator's insurance coverage shall be primary
insurance with respect to the City, its officers, officials, boards,
commissions, employees and duly authorized agents. Any insurance
maintained by the City, its officers, officials, boards, commissions,
employees and agents shall be in excess of the Operator's insurance
and shall not contribute to it; and
(c) Operator'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.
(2) The insurance shall provide that it shall not be cancelled or
materially altered so as to be out of compliance with the requirements of this
Section without thirty (30) days written notice first being given to City. If the
insurance is cancelled or materially altered so as to be out of compliance with
the requirements of this Section within the term of this Franchise, Operator
shall provide a replacement policy. Operator agrees to maintain continuous
uninterrupted insurance coverage, in the amounts required, for the duration of
this Franchise.
(D) Acceptability of Insurers. The insurance obtained by Operator shall be
placed with insurers with a Best's rating of no less than "A".
(E) Verification of Coverage. The Operator shall furnish the City with
certificates of insurance and an endorsement reflecting blanket additional insured
status. The certificates for each insurance policy are to be signed by a Person
authorized by that insurer to bind coverage on its behalf. The certificates for each
insurance policy are to be on standard forms or such forms as are consistent with
standard industry practices, and are to be received and approved by the City at the
time of acceptance of this Franchise by Operator with existing insurance coverage to
be maintained by Operator until that date. The Operator hereby warrants that its
insurance policies satisfy the requirements of this Franchise.
5.3 Security
Upon the effective date of this Franchise, Operator shall provide a performance bond
in the amount of fifty thousand dollars ($50,000) or other security in accordance with
City's applicable ordinances, rules and regulations 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 relocate and remove its facilities and to
restore City's Rights -of -Way and other property. Operator may be required to obtain
additional bonds, such as generally applicable construction bonds, in accordance
with City's ordinary practices. Any such bonds shall be in a form acceptable to the
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City Attorney. Operator shall keep the same in full force and effect at all times.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
Operator shall comply with Customer Service Standards, as provided in FCC
standards 47 C.F.R. sections 76.309, 76.1602, 76.1603, and 76.1619, and as
amended by mutual agreement between City and Operator. Prior to any such
amendment, the City and Operator shall meet to discuss the proposed amendment
and Operator's agreement thereto. Operator reserves the right to challenge any
Customer Service Standards ordinance that it believes is inconsistent with federal
law or its contractual rights under this Franchise. In the event the parties can not
agree, then the matter will be referred to alternative dispute resolution and the parties
agree to be bound by the decision of the mediator/arbitrator. The Operator shall not
enter into a contract with any Subscriber that is in any way inconsistent with the
terms of this Franchise.
6.2 Subscriber Privacy
Operator shall comply with privacy rights of Subscribers in accordance with
applicable federal, State and local laws.
6.3 Customer Service Location(s)
(A) Throughout the Franchise term, the Operator shall maintain, at a minimum,
one (1) customer service location conveniently located within three (3) miles of the
City limits which will be open during Normal Business Hours to provide Subscribers
the opportunity to return Subscriber equipment and to make bill payments and
complaints. In the event Operator requests that its customer service location be re-
located more than three (3) miles from the City limits, the Operator and City shall
meet to discuss the request.
(B) Operator shall at all times maintain an online customer support center
where customers may access information related to services and products, make bill
payments or "speak" with a virtual customer service representative and shall provide
a phone line at no charge in the customer service location with a direct link to
Operator's customer service representatives. Operator shall provide a website
whereby Subscribers can request service credits and make service changes.
6.4 Customer Service Agreement and Manual
(A) Operator shall provide to Subscribers an accurate, comprehensive
service agreement and customer installation packet for use in establishing Subscriber
service. This material shall, at a minimum, contain the following:
(1) Operator's procedure for investigation and resolution of
Subscriber service complaints.
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(2) Services to be provided and rates for such services.
(3) Billing procedures.
(4) Service termination procedure.
(5) A description of the manner that will be used to provide notice of
changes in rates, service or service terms and conditions.
(6) A complete statement of the Subscriber's right to privacy.
(7) Equipment policy.
(8) The name, address and phone number of the customer care
department that is responsible for handling cable questions and complaints for
the Operator. This information shall be prominently displayed in the installation
packet.
(9) Upon request by the City, Operator shall use its best efforts to
include information about Access channel programming in the installation
packet provided to Subscribers. The City shall supply such materials, for
insertion in the packet, in a format consistent with Operator's requirements.
(B) A copy of the installation packet shall be available at the customer
service location in the City and shall be provided to each Subscriber at the time of
initial installation and any reconnection Operator (excluding reconnections to the
same Subscriber within twelve (12) months), and at any time the packet is requested
by the Subscriber. Operator shall make reasonable efforts to advise Subscribers of
any material changes in cable operation policies.
SECTION 7. REPORTS AND RECORDS
7.1 Open Records
City shall have access to, and the right to inspect, any books and records of Operator
and/or its Affiliates, if necessary, for the enforcement of the terms of this Franchise.
Operator shall not deny City access to any of Operator's records on the basis that
Operator's records are under the control of any parent corporation, Affiliated entity or
a third party. City may, in writing, request copies of any such records or books, and
Operator shall provide such copies within sixty (60) days of the receipt of such
request. One copy of all reports and records required under this or any other Section
shall be furnished to City at the sole expense of Operator. If the requested books and
records are too voluminous, or for security reasons cannot be copied or removed,
then Operator may request, in writing within ten (10) days of receipt of such request,
that City inspect them at Operator's local offices. If any books or records of Operator
are not kept in a local office and not made available in copies to City upon written
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request as set forth above, and if City determines that an examination of such
records is necessary for the enforcement of this Franchise, then all reasonable travel
expenses incurred in making such examination shall be paid by Operator.
7.2 Confidentiality
City agrees to keep confidential any proprietary or confidential books or records to
the extent permitted by law. Operator shall be responsible for clearly and
conspicuously identifying the work confidential or proprietary, and shall provide a
brief written explanation as in why such information is confidential and how it may be
treated as such under State or federal law. If City receives a demand from any
Person for disclosure of any information designated by Operator as confidential, City
shall, so far as consistent with applicable law, advise Operator and provide Operator
with a copy of any written request by the party demanding access to such information
within a reasonable time. If Operator believes the City's disclosure of such
documents would interfere with Operator's rights under federal or state law, Operator
shall institute an action in Kitsap Superior Court to prevent City's disclosure. Operator
shall join the Person requesting the documents to any such action. Operator shall
defend, indemnify and hold City harmless from any claim or judgment including, but
not limited to, any penalties or costs under RCW 42.17.
7.3 Records Required
(A) Operator shall at all time maintain:
(1) A full and complete set of plans, records and "route" maps
showing the location of all System equipment installed or in use in the Rights -
of -Way, that are generated in Operator's normal course of business;
(2) A copy of all FCC filings on behalf of Operator, its parent
corporations or Affiliates which relate to the operation of the System in the
Franchise Area;
(3) A list of Operator's Cable Services, rates and Channel line-ups;
(4) A compilation of Subscriber complaints, actions taken and
resolution, and a log of service calls.
7.4 Copies of Federal and State Reports
Upon written request, Operator shall submit to City copies of any pleading,
applications, notifications, communications and documents of any kind, submitted by
Operator or its Affiliates to any federal, State or local courts, regulatory agencies and
other government bodies if such documents directly relate to the operations of
Operator's System within the Franchise Area. Operator shall submit such documents
to City no later than thirty (30) days after receipt of City's request. Operator 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
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by a court of competent jurisdiction, or a federal or State agency. With respect to all
other reports, documents and notifications provided to any federal, State or local
regulatory agency as a routine matter in the due course of operating Operator's
System within the Franchise Area, Operator shall make such documents available to
City upon City's written request.
7.5 Complaint File and Reports
Operator shall keep an accurate and comprehensive compilation of any and all
customer complaints received and Operator's actions in response to those
complaints, in a manner consistent with the privacy rights of Subscribers. Those files
shall remain open to the City during normal business hours and shall be retained for
a period of one year following the date the City receives an executive summary report
as described herein. Upon the written request, operator shall provide an executive
summary report to the City on an annual basis (unless requested semi-annually by
the City) within thirty (30) days of the end of each year (or six month period as the
case may be) which shall include the following information:
(A) Nature and type of customer complaints;
(B) A summary of unplanned service interruptions, including the frequency,
location and customer impact information if such information is available;
(C) Any significant construction activities which affected the quality or
otherwise enhance the service of the System;
(D) Average response time for service calls;
(E) New areas constructed and available for Cable Service;
(F) Video programming changes (additions/deletions); and
(G) Such other information as reasonably requested by City.
7.6 Inspection of Facilities and Annual Meeting
City may inspect any of Operator's facilities and equipment located in the Rights -of -
Way or on other public property at any reasonable time during business hours upon
at least twenty-four (24) hours notice, or, in case of emergency, upon demand
without prior notice.
Throughout the term of the Franchise, Operator shall meet with the City on an annual
basis upon fifteen (15) days prior written notice from City. Matters to be discussed
include, but are not limited to customer service, System performance, technical
issues and other matters related to Operator's operation of the Cable System.
7.7 False Statements
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Any intentional false or misleading statement or representation in any report required
by this Franchise shall be a material breach of this Franchise and may subject
Operator to all remedies, legal or equitable, which are available to City under this
Franchise or otherwise.
SECTION 8. PROGRAMMING AND CHANNEL CAPACITY
8.1 Broad Programming Categories
Operator shall provide or enable the provision of at least the following initial broad
categories of programming to the extent such categories are reasonably available:
(A) Educational programming;
(B) Sports programming;
(C) General entertainment programming;
(D) Children's programming;
(E) Information/news programming;
(F) National and local government programming.
8.2 Obscenity
Operator shall not transmit or permit to be transmitted, over any Channel subject to
its editorial control any programming which is obscene under all applicable federal,
State or local laws, statutes, regulations or standards now existing or hereafter
adopted.
8.3 Parental Control Device
Upon request by any Subscriber, Operator 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. Operator shall inform its Subscribers
of the availability of the lockout device at the time of their initial subscription and
periodically thereafter.
8.4 Complimentary Cable Service
The Operator, upon request, shall provide without charge, a Standard Installation and
one outlet of Basic Service to City buildings now existing or hereafter constructed
provided that the buildings are either owned and occupied or leased and occupied by
the City, such as but not limited to the Public Works shop, Senior Center, Teen
Center, fire station(s), police station(s), libraries and School(s) and provided further
that they are already served or are within 125 aerial feet or 60 feet underground (a
Standard Installation) of its Cable System. Operator shall maintain complimentary
Cable Service to those outlets currently provided in the City Hall. The Cable Service
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described herein is a voluntary initiative of Operator, but shall be provided throughout
the term of this Franchise. The Cable Service provided shall not be distributed
beyond the originally installed outlet without authorization from Operator. In the case
of leased facilities, the recipient of service is responsible for securing approval for
appropriate right of entry suitable to the Operator in its reasonable discretion. The
Cable Service provided shall not be used for commercial purposes and the City shall
take all possible precautions to limit display in public areas to the City Access
Channels. The intent of the preceding provision is to ensure access to Cable
Services for the benefit of the City. The City shall take reasonable precautions to
prevent any use of the Operator's Cable System in any manner that results in the
inappropriate use thereof or any loss or damage to the Cable System. To the extent
not inconsistent with other provisions in this Franchise, the City shall hold the
Operator harmless from any and all liability or claims arising out of the use of Cable
Service at the City facilities referenced in this Section. For new hookups, the
Operator shall not be required to provide an outlet to such buildings where a non -
Standard Installation is required, unless the City or building owner/occupant agrees
to pay the incremental cost of any necessary Cable System extension and/or non -
Standard Installation. If additional outlets of Cable Service are provided to such
buildings beyond those required herein, the building owner/occupant shall pay the
usual installation and service fees associated therewith.
8.4.1 Complimentary Internet Service
The Operator, upon request, shall provide without charge a standard installation and
one outlet for internet service to City Hall, the public works shop, and/or any other
city -occupied building, including if requested a cable modem and any other
necessary hardware to generate a wireless signal within City Hall. Operator shall
maintain said complimentary internet service throughout the term of this Franchise.
8.5 New Technology
If there is a new technology which in City's opinion would enhance substantially the
quality or quantity of programming available to Subscribers on the System, Operator
shall, at the request of the City, investigate the feasibility of implementing said
technology and report to City the results of such investigation within ninety (90) clays
from the date of such request.
8.6 Ascertainment of Programming and Customer Satisfaction
Upon request of the City, but not more frequently than once every three (3) years, the
Operator shall, at the sole expense of Operator, 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 Service offered by Operator and customer service. The City reserves the right
to include up to six (6) questions in Operator's survey. Upon City's request, Operator
shall provide the results of such survey to the City within one (1) month after the
survey results become available. Nothing herein shall be construed to limit the right
of the City to conduct its own surveys at its own expense.
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SECTION 9. EDUCATIONAL AND GOVERNMENTAL ACCESS
9.1 Access Channels
(A) At all times during the term of this Franchise, Operator shall provide, as
part of the Basic Service package, at no charge, the following:
At least one (1) Channel for Public, Educational, Governmental (PEG) and
other Access Programming; and
(B) In addition, Operator shall provide at no charge one (1) additional Channel
for PEG and other Access Programming to be triggered in accordance with Section
9.3 herein.
(C) Each of the above Channels must be capable of carrying one standard
analog or one digital Channel, on Basic Service. Any Access Channels provided via
digital or compressed video technology shall have at least the same transmission
quality as is used to carry any of the commercial Channels that deliver programming
on the System and shall be full motion video. The provision of Access Channels via
digital or compressed video technology will not reduce the total Access Channel
requirement herein.
(D) In the event Operator makes any change in the System and related
equipment and facilities or in signal delivery technology, which change directly or
indirectly affects the signal quality or transmission of any Access Channel
programming or services, the Operator shall, at its own expense, take necessary
technical steps and provide necessary technical assistance, including the acquisition
of new equipment and training of Access personnel, so that the Access facilities and
equipment may be used as intended to ensure that delivery of Access Video
Programming signals is not diminished or adversely affected, including, among other
things, so that live and taped programming can be cablecast with as good or better
signal quality than existed prior to such change. For example, these provisions shall
apply if Basic Service on the Cable System is converted from an analog to a digital
format, such that the Access Channels must also be converted to digital in order to
be received by Subscribers.
9.2 Management and Control of Access Channels
(A) City may authorize Designated Access Providers to control, operate,
and manage the use of any and all Access facilities provided by Operator under this
Franchise, including, without limitation, the operation of Access Channels. The City or
its designee may formulate rules for the operation of the Access Channels, consistent
with this Franchise. Nothing herein shall prohibit the City from authorizing itself to be
a Designated Access Provider.
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(B) Operator shall cooperate with City and Designated Access Providers in
the use of the System and Access facilities for the provision of Access Channels.
(C) Upon request from the City, the Operator shall present a feasibility study within
one hundred twenty (120) days to provide video interconnectivity to the City's
Designated Access Provider for the purpose of providing live broadcasts origination
from the City. The feasibility study shall include the additional estimated per
subscriber cost of construction and interconnect that may be passed through to
subscribers. After the City has reviewed the study, if the additional costs are deemed
reasonable the City shall, in its sole discretion, instruct the Operator to proceed with
the interconnect.9.3 Triggers for Expansion of Access Channels
Pursuant to Section 9.1 (Access Channels), the City may require Operator to make
available an additional activated Downstream Channel for Access Programming
when either of the following occurs:
(A) When Operator converts its Cable System to an all -digital format and
discontinues its analog signal; or
(B) When the Access Channel required by Section 9.1(A) is used for
original Locally Scheduled Programming (excluding character generated and filler
programming, (e.g., NASA, AM/FM radio programming) during eighty percent (80%)
of the hours between 8:00 a.m. and 10:00 p.m. Monday through Friday during any
consecutive ten (10) week period, Operator shall make available, upon written
request, within six (6) months, one additional Access Channel for Access
programming purposes. Therefore an average of 3.7 hours of non -replay original
programming per day on a five (5) day per week basis for a ten (10) consecutive
week period is required to trigger use of this additional Access Channel. The
programming of the additional Access Channel required herein must contain distinct
and non -repetitive programming of the other Access Channel.
9.4 Underutilized Access Channels
Operator 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 Operator to
use underutilized time on Access Channels. If Operator believes that any Access
Channel has underutilized time, Operator may file a request with the City to use that
time. The City shall in its sole and absolute discretion render a 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 Operator, then
Operator may begin using such time ninety (90) days after receipt of the decision.
The Operator's request shall not be unreasonably denied. Thereafter, the second
Channel or a portion thereof shall revert back to the City upon the City meeting the
trigger terms referenced in Section 9.3 above. It is acknowledged and agreed that the
first Access Channel shall not, during the term of this Franchise, revert back to
Operator.
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9.5 Access Channel Location/Relocation; Bill Insertions
Operator will use reasonable efforts to minimize the movement of Access Channel
assignments. Operator shall provide to the City a minimum of sixty (60) days notice,
and use its best efforts to provide ninety (90) days notice, prior to any relocation of its
Access Channels, unless the change is required by federal law, in which case
Operator shall give the City the maximum notice possible. Operator shall reimburse
City for costs incurred by City for any promoting, marketing, advertising or notice of
the Access Channel change up to $3,000.
Operator, upon request, shall provide the City the opportunity to include two bill
insertions per year. The City or Designated Access Providers shall be responsible for
the costs of printing its bill insertions, the cost of inserting the information into
Operator's bills and for any incremental postage costs. Bill insertions must conform to
Operator's reasonable mailing requirements. Operator shall be provided an
opportunity to review and approve all Access bill insertions.
9.6 Access Interconnections
(A) The Access Channels required by this Franchise shall be
interconnected with the access channels of geographically adjacent cable systems
that are owned and operated by Operator or an Affiliate of Operator and that are
served from the same headend so that Access Channels can be carried throughout
the region. Operator shall take all necessary technical steps to ensure that a
technically adequate pathway is provided for all Access Channel interconnections.
Provided, the City shall not require interconnection except under circumstances
where it can be accomplished without undue burden or excessive cost to the
Subscribers.
(B) Operator shall, in accordance with this Franchise, Interconnect the
Access Channels of the Cable System with any other geographically adjacent cable
system not owned or operated by Operator or an Affiliate of Operator upon the
directive of the City. Interconnections shall be located either at the jurisdictional
boundaries or at another mutually agreed upon location. The City shall not direct
interconnection in this case except under circumstances where it can be
accomplished without undue burden or excessive cost to the Subscribers. Operator
shall not be required to interconnect with the other cable system unless the
jurisdiction geographically adjacent to the City has provided written authorization and
the operator of that system is willing to do so and pay for its own costs of constructing
and maintaining the interconnect up to the demarcation point.
(C) In the event Operator receives a directive from the City to interconnect
with another cable operator authorized by franchise to provide cable service within
the Franchise Area, Operator shall immediately initiate negotiations with the other
affected cable system and shall report to the City the results of such negotiations.
The other cable operator shall be responsible for Operator's cost in constructing and
maintaining the interconnect. If the parties cannot reach agreement on the terms of
M
the interconnect, including compensation and timing, the dispute shall be submitted
to the City for determination and resolution. Additionally, Operator shall only be
required to interconnect with another cable operator if the other cable operator is
providing similar support for public, education and/or government programming
compared to the requirements contained within this Franchise.
(D) Notwithstanding the foregoing, interconnection may be waived by the
City if it is not technically feasible. Operator may terminate an Interconnection for any
period where an interconnecting system is delivering signals in a manner that
endangers the technical operation of Operator's Cable System.
(E) Nothing in this section alters Operator's Channel obligations for Access
programming delivered to Subscribers within the Franchise Area. Unless the City
directs otherwise, or an affected jurisdiction objects, any Interconnection shall allow
Access Channels to operate without disruption or delay across and within the
Franchise Area boundaries.
(F) It is Operator's responsibility to ensure that the signals it provides to the
Interconnection meet FCC technical standards. It is not the Operator's responsibility
to ensure that the signals provided to the Interconnection by another interconnecting
system meet industry standards.
(G) Any equipment and construction costs borne by Operator in connection
with the obligation to provide for Access Channel Interconnection shall be considered
a capital cost. City agrees that such cost is an "external cost" as such term is used in
47 C.F.R. Section 76.922(f) on the date of this Franchise, and as such, the cost is
permitted under federal law and regulation to be passed through to Subscribers, to
the extent and in a manner provided for in federal regulations governing the same.
9.7 Access Channels On Lowest Tier
All Access Channels provided to Subscribers under this Franchise shall be included
by Operator, without limitation, on the lowest tier of Cable Service offered by
Operator on its System.
9.8 Technical Quality
The Operator shall maintain all Access channels and interconnections as required by
FCC standards.
9.9 Return Lines
(A) If during the term of this Franchise, a second Access Channel is
triggered and the City establishes it's own production facility, then upon written
request of the City, Operator shall construct and maintain fiber-optic return lines from
the City headend or from the City's hub to other locations within the Franchise Area,
delivering Access programming to Subscribers. All return line construction costs shall
be paid by the City at a cost mutually agreed to between the City and Operator and
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shall be completed within eight (8) months of request. Operator may require that a
reasonable deposit of the estimated project cost be paid in advance.
(B) After satisfactory completion of work requested by the City for which the
City is to reimburse the Operator and upon submission by Operator, in such form as
may be requested by the City, of a proper invoice for payment of the cost reasonably
incurred and accompanied by such evidence in support thereof as may be
reasonably required by the City, the City agrees to make payment for the cost
reasonably incurred up to the estimated cost for the work; provided, however, that all
payments shall be subject to adjustment for any amount found upon audit or
otherwise to have been improperly invoiced. All work shall be performed in a cost-
effective manner to minimize the costs to the City. Operator shall permit the City to
inspect and audit all pertinent books and records of Operator, and Operator shall
make available for inspection and audit all pertinent books and records of any Person
who has performed the work for which costs are being billed to the City, so that the
City may verify the accuracy of costs being billed. Operator shall supply the City with
or permit the City to make a copy of any books or records, and any portions thereof
relating to the cost being billed for such work.
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1 Construction
(A) Subject to applicable laws, regulations and ordinances of City and the
provisions of this Franchise, Operator may perform all maintenance, construction,
repair, upgrade and reconstruction necessary for the operation of its System. All
construction and maintenance of any and all of Operator's facilities within Rights -of -
Way shall, regardless of who performs the construction, be and remain Operator's
responsibility. Operator shall apply for, and obtain, all permits necessary for
construction or installation of any facilities and for excavating and laying any facilities
within the Rights -of -Way. Operator shall pay all applicable fees upon issuance of the
requisite construction permits by City to Operator.
(B) Prior to beginning any construction, Operator shall provide City with a
construction schedule for work in the Rights -of -Ways.
(C) Operator may make excavations in Rights -of -Way for any facility
needed for the maintenance or extension of Operator's System. Prior to doing such
work, Operator shall apply for, and obtain, appropriate permits from City, and give
appropriate notices to City. As a condition of any permits so issued, City officials may
impose such conditions and regulations as are necessary for the purpose of
protecting any structures in such Rights -of -Way, proper restoration of such Rights -of -
Way and structures, protection of the public and the continuity of pedestrian or
vehicular traffic. Whenever it is possible and reasonably practicable to joint trench or
share bores or cuts, Operator shall work with other providers, licensees, permittees
and franchisees so as to reduce so far as possible the number of Rights -of -Way cuts
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within the Franchise Area
(D) In the event that emergency repairs are necessary, Operator shall
immediately notify City of the need for such repairs. Operator may initiate such
emergency repairs, and shall apply for appropriate permits within forty-eight (48)
hours after discovery of the emergency.
(E) Operator shall protect public and private property with the Rights -of -Way from
damage. If public property is disturbed or damaged, Operator shall restore the
property to its former condition. Public Right -of -Way or other City property shall be
restored in a manner and within a timeframe approved by the City Engineer, or his
designee. If restoration of public Right -of -Way or other City property is not
satisfactorily performed with a reasonable time, the City Engineer or his designee
may after prior notice to Operator, or without notice where the disturbance or damage
may create a risk to public health or safety, or cause delay or added expense to a
public project or activity, cause the repairs to be made at the Operator's expense and
recover the cost of those repairs from Operator. Within forty-five (45) days of receipt
of an itemized list of those costs, including the costs of labor, materials and
equipment, Operator shall pay the City. If suit is brought by City upon Operator's
failure to pay for repair or restoration, the reasonable costs and expenses of the
prevailing pay shall be paid by the non -prevailing party.
10.2 Location of Facilities
Within five (5) business days after the City or any franchisee, licensee or permittee of
the City notifies Operator of a proposed Right -of -Way excavation, Operator shall, at
Operator's expense:
(A) Mark on the surface all of its located underground facilities within the
area of the proposed excavation;
(B) Notify the excavator of any unlocated underground facilities in the area
of the proposed excavation; or
(C) Notify the excavator that Operator does not have any underground
facilities in the vicinity of the proposed excavation.
10.3 Restoration of Rights -of -Way
(A) Whenever Operator disturbs the surface of any Rights -of -Way for any
purpose, Operator shall promptly restore the Rights -of -Way to a condition as good or
better than its prior condition. When any opening is made by Operator in a hard
surface pavement in any Rights -of -Way, Operator shall promptly refill the opening
and restore the surface to a condition satisfactory to the City Engineer or his
designee.
(B) If Operator excavates the surface of any Rights -of -Way, Operator shall
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be responsible for restoration in accordance with applicable regulations regarding the
Rights -of -Way and its surface within the area affected by the excavation. City may,
after providing notice to Operator, refill or repave any opening made by Operator in
the Rights -of -Way, and the expense thereof shall be paid by Operator. City may, after
providing notice to Operator, remove and repair any work done by Operator which, in
the determination of City, does not conform to applicable code. The cost thereof,
including the costs of inspection and supervision shall be paid by Operator. All
excavations made by Operator in Rights -of -Way shall be properly safeguarded for
the prevention of accidents. All of Operator's work under this Franchise, and this
Section in particular, shall be done in strict compliance with all rules, regulations and
ordinances of City.
10.4 Maintenance and Workmanship
(A) Operator's System shall be constructed and maintained in such manner
as not to interfere with sewers, water pipes or any other property of City, or with any
other pipes, wires, conduits, pedestals, structures or other facilities that may have
been laid in Rights -of -Way by, or under, City's authority.
(6) Operator shall provide and use any equipment and appliances
necessary to control and carry Operator's signals so as to prevent injury to City's
property or property belonging to any Person. Operator, at its own expense, shall
repair, renew, change and improve its facilities to keep them in good repair and safe
and presentable condition.
(C) The Operator's transmission and distribution system, wires and
appurtenances shall be located, erected and maintained so as not to endanger or
interfere with the lives of Persons, or to unnecessarily hinder or obstruct the free use
of Rights -of -Way, alleys, bridges or other public property.
(D) Operator will maintain membership in good standing with the Utility
Coordinating Council One Call Center, or other similar or successor organization
designated to coordinate underground equipment locations and installations.
Operator 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.
(E) Operator shall give reasonable notice to private property owners of
construction work in adjacent Rights -of -Way.
10.5 Acquisition of Facilities
Upon Operator's acquisition of facilities in any Rights -of -Way, or upon the addition or
annexation to the City of any area in which Operator owns or operates any facility,
Operator shall, at City's request, submit to City a statement describing all facilities
involved, whether authorized by franchise, permit, license or other prior right, and
specifying the location of all such facilities to the extent Operator has possession of
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such information. Such facilities shall immediately be subject to the terms of this
Franchise.
10.6 Reservation of City's Use of Rights -of -Way
(A) Nothing in this Franchise shall prevent City or public utilities from
constructing any public work or improvement. If any of Operator's System interferes
with the construction or repair of any Rights -of -Way or public improvement, including
construction, repair or removal of a sewer or water main, Operator's System shall be
removed or relocated in the manner City shall direct. Any and all such removal or
relocation shall be at the expense of Operator. In the case of a joint relocation
project, Operator shall be responsible for the cost of relocating its facilities. All such
removal or relocation shall be preceded by sixty (60) days written notice or such
additional time as may be provided by City. Should Operator fail to remove, adjust or
relocate its facilities by the date established by City's written notice to Operator, City
may effect such removal, adjustment or relocation, and the expense thereof shall be
paid by Operator.
(B) The City may remove or disconnect Operator's facilities and equipment
located in the Right -of -Way or on any other property of the City in the case of fire,
disaster or other emergency. Except during an emergency, the City shall provide
reasonable notice to Operator prior to taking such action and shall provide Operator
with the opportunity to perform such action. Following notice by the City, Operator
shall remove, replace, relocate, modify or disconnect any of its facilities or equipment
within any Right -of -Way, or on any other property of the City, except that the City
shall provide at least sixty (60) days' written notice of any major capital improvement
project which would require the removal, relocation, replacement, modification or
disconnection of Operator's facilities or equipment. If the Operator 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 Operator. Operator shall
remit payment to City within thirty (30) days of receipt of an itemized list of those
costs.
(C) At the request of any Person holding a valid permit and upon
reasonable advance notice, Operator shall temporarily raise, lower or remove its
wires as necessary to permit the moving of a building, vehicle, equipment or other
item. The cost of such temporary change must be paid by the permit holder, and
Operator may require the estimated payment in advance.
10.7 Rights -of -Way Vacation
If any Rights -of -Way or portion thereof used by Operator is vacated by City during the
term of this Franchise, unless City specifically reserves to Operator the right to
continue the use of vacated Rights -of -Way, Operator shall, without delay or expense
to City, remove its facilities from such Street, and restore, repair or reconstruct the
Rights -of -Way where such removal has occurred. In the event of failure, neglect or
refusal of Operator, after thirty (30) days' notice by City, to restore, repair or
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reconstruct such Rights -of -Way, City may do such work or cause it to be done, and
the reasonable cost thereof, as found and declared by City, shall be paid by Operator
within thirty (30) days of receipt of an invoice and documentation.
10.8 Removal of Discontinued Facilities
Whenever Operator intends to discontinue using any facility within the Rights -of -Way,
Operator shall submit for City's approval a complete description of the facility and the
date on which Operator intends to discontinue using the facility. Operator may
remove the facility or request that City allow it to remain in place. Notwithstanding
Operator's request that any such facility remain in place, City may require Operator to
remove the facility from the Rights of Way or modify the facility to protect the public
health, welfare, safety and convenience, or otherwise serve the public interest. City
may require Operator to perform a combination of modification and removal of the
facility. Operator shall complete such removal or modification in accordance with a
schedule set by City. Until such time as Operator removes or modifies the facility as
directed by City, or until the tights to and responsibility for the facility are accepted by
another Person having authority to construct and maintain such facility, Operator
shall be responsible for all necessary repairs and relocations of the facility, as well as
maintenance of the Rights -of -Way, in the same manner and degree as if the facility
were in active use, and Operator shall retain all liability for such facility. If Operator
abandons its facilities, City may choose to use such facilities for any purpose
whatsoever including, but not limited to, Access Channel purposes.
10.9 Hazardous Substances
(A) Operator shall comply with all applicable State and federal laws,
statutes, regulations and orders concerning hazardous substances within the Rights -
of -Way.
(B) Operator shall maintain and inspect its System located in Rights -of -
Way. Upon reasonable notice to Operator, City may inspect Operator's facilities in
Rights -of -Way to determine if any release of hazardous substances has occurred, or
may occur, from or related to Operator's System. In removing or modifying Operator's
facilities as provided in this Franchise, Operator shall also remove all hazardous
substances related thereto.
10.10 Undergrounding of Cable
(A) Where electric or telephone utility wiring is installed underground at the
time of System construction, or when such wiring is subsequently placed
underground, all System lines, wiring and equipment shall also be placed
underground with other wireline service at no expense to the City. Related System
equipment, such as pedestals, must be placed in accordance with applicable City
Code requirements and rules. In areas where both electric and telephone utility wiring
are aerial, the Operator 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.
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(B) The Operator shall utilize existing poles and conduit wherever possible.
(C) This Franchise does not grant, give or convey to the Operator the right
or Privilege to install its facilities in any manner on specific utility poles or equipment
of the City or any other Person.
(D) The City shall not be required to obtain easements for the Operator.
(E) The Operator shall participate with other providers in joint trench
projects to relocate its overhead facilities underground and remove its overhead
facilities in areas where all utilities are being converted to underground facilities. To
the extent technically feasible, relocation of overhead facilities underground shall be
completed within ninety (90) days (or such other period of time provided by City
Code) in areas where electric or telephone utilities are being converted to
underground facilities.
10.11 Construction Codes
Operator shall strictly adhere to all building and zoning codes currently or hereafter in
effect. Operator shall arrange its lines, cables and other appurtenances, on both
public and private property, in such a manner as to cause no unreasonable
interference with the use of said public or private property by any Person. In the
event of such interference, City may require the removal or relocation of Operator's
lines, cables and other appurtenances from the property in question.
10.12 Construction and Use of Poles
Whenever feasible, Operator shall use existing poles when the installation of facilities
above -ground is permitted. In the event Operator 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 Operator to make all needed excavations in the
streets for the purpose of placing, erecting, laying, maintaining, repairing and
removing poles, conduits, supports for wires and conductors, and any other facility
needed for the maintenance or extension of Operator's System. All poles of Operator
shall be erected between the curb and the sidewalk unless otherwise designated by
the proper authorities of City, and each pole shall be set whenever practicable at an
extension lot line. City shall have the right to require Operator to change the location
of any pole within Rights -of -Way when, in the opinion of City, the public health, safety
or welfare requires such change, and the expense thereof shall be paid by Operator.
10.13 Tree Trimming
Upon obtaining a written permit from City, if such a permit is required, Operator may
prune or cause to be pruned, using proper pruning practices in accordance with such
permit, any tree in the Rights -of -Way that interferes with the System.
10.14 Standards
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(A) All work authorized and required hereunder shall be done in a safe,
thorough and workmanlike manner. The Operator must comply with all federal, State
and local safety requirements, rules, regulations, laws and practices, and employ all
necessary devices as required by applicable law during construction, operation and
repair of its System. By way of illustration and not limitation, the Operator must
comply with the National Electric Code, National Electrical Safety Code and
Occupational Safety and Health Administration (OSHA) Standards.
(B) Operator shall ensure that all cable drops are properly bonded and
grounded at the home, consistent with applicable code requirements in effect at time
of installation. All non -conforming or non -performing cable drops shall be replaced by
Operator as necessary.
(C) All installations of equipment shall be permanent in nature, durable and
installed in accordance with good engineering practices and of sufficient height to
comply with all federal: State and local regulations, ordinances and laws so as not to
interfere in any manner With the right of the public or individual property owner, and
shall not interfere with the travel and use of public places by the public during the
construction, repair, operation or removal thereof, and shall not obstruct or impede
traffic.
(D) In the maintenance and operation of its System in Rights -of -Way and
other public places, and in the course of any new construction or addition to its
facilities, the Operator shall proceed so as to cause the least possible inconvenience
to the general public; any opening or obstruction in the Rights -of -Way or other public
places made by the Operator in the course of its operations shall be guarded and
protected at all times by the placement of adequate barriers, fences or boarding, the
bounds of which, during periods of dusk and darkness, shall be clearly marked.
(E) In the event the City shall relocate a Rights -of -Way or make any other
changes requiring the removal of utility installations, Operator shall remove or
relocate its installations at said locations at no cost to City.
10.15 Stop Work
On notice from City that any work is being conducted contrary to the provisions of this
Franchise, or in an unsafe or dangerous manner as determined by City, or in violation
of the terms of any applicable permit, laws, regulations, ordinances or standards, the
work may immediately be stopped by City. The stop work order shall:
(A) Be in writing;
(B) Be given to the Person doing the work, or posted on the work site;
(C) Be sent to Operator by mall at the address given herein;
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(D) Indicate the nature of the alleged violation or unsafe condition; and
(E) Establish conditions under which work may be resumed.
10.16 Work of Contractors and Subcontractors
Operator's contractors and subcontractors shall be licensed and bonded in
accordance with local ordinances, regulations and requirements. Work by contractors
and subcontractors shall be subject to the same restrictions, limitations and
conditions as if the work were performed by Operator. Operator shall be responsible
for all work performed by its contractors and subcontractors and others performing
work on its behalf, and shall ensure that all such work is performed in compliance
with this Franchise and other applicable law, and shall be jointly and severally liable
for all damages caused by them. It is Operator's responsibility to ensure that
contractors, subcontractors or other persons performing work on Operator's behalf
are familiar with the requirements of this Franchise and other applicable laws
governing the work performed by them.
10.17 Additional Ducts and Conduit
If City is interested in contracting with Operator to place additional duct or conduit in a
specific area within the Franchise Area, it shall notify Operator of its interest and
Operator shall determine whether the request could be incorporated into any future
construction, relocation or maintenance projects. In addition, except in the event of
an emergency, Operator shall provide the City with thirty (30) days notice before
Operator opens a trench or bore in the public right-of-ways so that the City can
determine whether it wishes to place additional duct or conduit. If a project is
scheduled by Operator wherein additional duct or conduit will be placed on behalf of
the City, the following conditions shall apply:
(A) The City shall enter into a contract with the Operator consistent with
RCW 80.36.150. The contract rates to be charged should recover the Incremental
Costs of the Operator. If the City makes the additional duct or conduit and related
access structures available to any other entity for the purposes of providing Cable
Service or telecommunications service for hire, sale or resale to the general public,
the rates to be charged, as set forth in the contract with the Operator shall recover at
least the Fully Allocated Costs of the Operator. The Operator shall state both contract
rates in the contract. The City shall inform the Operator 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 Operator.
(C) The value of the additional duct or conduit requested by the City shall
not be considered a public works construction contract.
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(D) This section shall not affect the possible provision of an I -Net by the
Operator as provided elsewhere in this Franchise or under federal law.
(E) At the City's sole option, the City may require Operator to furnish such
additional duct or conduit and the related structures necessary to access the conduit
or duct for the Incremental Costs (if such Incremental Costs have been mutually
agreed to by the parties) by so notifying Operator no later than sixty (60) days after
the information is provided by the Operator. Notwithstanding the foregoing,
Operator's construction, relocation or maintenance projects shall not be
unreasonably delayed as a result of the requirements contained within this section.
(F) If the City requires Operator to furnish additional duct, conduit or related
structures pursuant to this section, the Operator shall construct these facilities to the
same standards as Operator'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 Operator shall be responsible for any
required filings with State agencies or commissions.
10.18 Safety
Under any circumstances regarding operation or use of the System which poses or
involves public health, safety or welfare hazards, peril or danger or property hazards,
peril or danger, Operator shall take steps and act expeditiously to rectify such
situations until conclusion.
SECTION 11. SYSTEM DESIGN
Prior to the effective date of this Franchise, the Operator undertook a voluntary
upgrade of its Cable System to a fiber -to -the -node system architecture, with fiber-
optic cable deployed from the Headland to the nodes and tying into a hybrid fiber -
coaxial system already serving Subscribers. Active and passive devices are capable
of passing a minimum of 750 MHz, and the Cable System is capable of delivering
high quality signals that meet or exceed FCC technical quality standards regardless
of a particular manner in which signal is transmitted. Operator agrees to maintain the
Cable System in a manner consistent with, or in excess of these specifications
throughout the term of the Franchise.
SECTION 12. INSTITUTIONAL NETWORK
12.1 I -Net.
The City may, during the term of this Franchise, require the Operator to provide a
proposal for provision of an Institutional Network for non-commercial private network
communications between City occupied buildings including but not limited to schools,
libraries and governmental agencies. Upon receipt of the notice, the City and the
Operator shall meet to discuss the I -Net communications needs of the City and the
ability of the Grantee to accommodate them. The City shall determine, at its sole
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discretion, the I -Net design specifications.
12.2 I -Net Models.
Within one hundred twenty (120) days of receipt of the City's written request for an I -
Net proposal, which includes the City's I -Net design specifications and complete list
of I -Net sites, Operator shall provide a design and cost estimate for the I -Net. The
City shall either accept the I -Net proposal or make recommendations for
modifications to it. The City may request a proposal for either of the following I -Net
models:
(A) A managed I -Net, owned and operated, maintained and administered
by Operator ("Operator Managed Network"); or
(B) A fiber-optic cable I -Net infrastructure constructed, maintained and
owned by Operator but which the City operates and manages ("City Managed
Network").
12.3 Response to [-Net Proposal.
The City shall have one hundred twenty (120) days from receipt of Operator's I -Net
design and cost estimate to respond to Operator with an acceptance or rejection of
the proposal. If the City accepts Operator's proposal, Operator will proceed with
construction. If the City rejects the proposal, but suggests modifications and both the
Operator and the City are willing to accept a modified proposal, Operator will proceed
with construction.
(A) City Managed . Network Model. If the City chooses the City Managed
Network model, the City will be invoiced for construction costs upon completion of
construction and acceptance testing, in an amount not to exceed the estimate, due
and payable to Operator within one hundred twenty (120) days. Additionally, ongoing
maintenance and repair of the I -Net infrastructure, whether scheduled or prompted by
an emergency, shall be performed by the Operator as part of an annual maintenance
fee, along with any warranties to be mutually negotiated between the City and
Operator.
(1) Construction, Acceptance and Termination. I -Net infrastructure
will be constructed, acceptance tested and terminated by Operator in
accordance with standard practices, including but not limited to
practices concerning connectorization, and the City agrees to grant
Operator all necessary rights of entry, easements and licenses to
accomplish the construction to the I -Net sites. Each fiber I -Net site
connection will be terminated at an internal point of demarcation in a
standard fiber termination panel, unless the City provides another
means of termination, in which case the City will provide all necessary
fiber termination equipment. At each fiber termination location the City
will provide wall mount backboards and a power source for the basic
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termination, or such equipment as chosen by the City as a replacement.
I -Net infrastructure shall meet manufacturers' specifications for cable,
attenuation, splice loss and connector loss as measured by an OTDR
using industry standard test methodologies.
(2) Administration, Maintenance and Management. The City shall be
responsible for the ongoing administration, maintenance and
management of the I -Net equipment located on the City side of the I -
Net fiber termination panel at each I -Net site, and the internal site
network itself.
(3) City I -Net Users to Provide Electronics as Provided Herein.
Operator shall be responsible for supplying and installing the I -Net
infrastructure to the specified fiber terminal panel locations only,
providing a pathway for I -Net communications between sites. Any
active equipment or components on the City's side of the termination
panel, including but not limited to computers, network cards, optronics,
electronics and equipment racks, required for [-Net use shall be
provided at the City's sole expense.
(B) Operator Managed Network Model. Prior to the City being responsible
for making any payments to Operator, the I -Net would have to perform in accordance
with industry standards, If the City chooses an Operator Managed Network model,
the City will pay a recurring monthly per site service fee in accordance with a fully
executed I -Net Service Agreement negotiated in good faith by the City and Operator.
Ongoing maintenance and repair of the I -Net and fiber infrastructure, whether
scheduled or prompted by an emergency, shall be performed by the Operator at no
additional charge to the City.
(1) Construction and Termination.
I -Net infrastructure will be constructed and terminated by Operator in
accordance with standard practices, including but not limited to
practices concerning connectorization, and the City agrees to grant
Operator all necessary rights of entry, easements and licenses to
accomplish the construction to the I -Net sites. Each fiber connection will
be terminated in a standard fiber termination panel. At each fiber
termination location, the City will provide wall mount backboards and a
power source for the basic termination.
(2) Operator to Provide Equipment, Optronics and Electronics.
Operator shall provide all I -Net system and site equipment, optronics
and electronics in accordance with a fully executed I -Net service
agreement.
ME
(3) Administration. Maintenance and Management.
Operator shall be responsible for the ongoing administration,
maintenance and management of the I -Net equipment, optronics and
electronics up to a point of demarcation on the City side of the system
equipment. All optronics and electronics located at each I -Net site shall
be maintained in accordance with a fully executed I -Net service
agreement. All maintenance shall be performed in accordance with
industry standards, and all [-Net equipment shall comply in all respects
with applicable governmental codes, laws, ordinances or regulations
and the National Electric Code and the National Electric Safety Code.
12.4 Ownership and Right of Use.
The City and other Qualified [-Net Users shall have an exclusive right of use of the I -
Net for noncommercial private network communications so long as the City has met
its financial obligations to Operator, which right cannot be revoked by Operator or its
successors, if any, during the full term of the Franchise or any renewals thereof.
However, Operator shall at all times own in fee the fiber optic cable infrastructure and
associated facilities and equipment up to termination points where physically
connected to City owned optronics or electronics, if any.
12.5 Private Network Status.
The I -Net is a private communication network governed by this Franchise and I -Net
service agreements, where required, are to be mutually negotiated between City and
Operator. The City will use the I -Net solely for noncommercial applications in
accordance therewith and may grant access only to Qualified I -Net Users. To wit, the
City and Qualified I -Net Users shall not lease, sublease or resell I -Net capacity or
services to a third party for any purpose whatsoever. The City will not attach any
equipment or otherwise modify the I -Net in any way that will interfere with the signal
quality in the normal operation of Operator's cable system and Operator reserves the
right to temporarily suspend until rectified, the City's rights granted hereunder in the
event such interference should occur. Such unilateral suspension under these
circumstances shall not place Operator in violation of the Franchise.
12.6 I -Net and Force Majeure.
Neither the City nor the Operator shall be in default or liable to the other for any
failure of performance under this Section 12 due to causes beyond its control (except
for the fulfillment of payment obligations as set forth herein) including but not limited
to: acts of God, fire, flood or other catastrophes, severely adverse weather
conditions, national emergencies, riots, insurrections, wars or strikes, lockouts, work
stoppages or other labor difficulties, provided however, the party that is unable to
perform its obligations shall promptly notify the other party of such delay and the time
period shall be extended for the actual amount of time said party is so delayed.
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12.7 Service Agreement.
A Service Agreement may be developed in good faith between the City and Operator
with respect to a Operator Managed Network under Section 12.3(B). This Service
Agreement will incorporate all the pertinent requirements of this Section 12, and may
specify additional and more detailed operation and maintenance responsibilities,
standards of reliability and response time for repair, technical network management
and status monitoring requirements. If the Service Agreement is established between
the City and Operator, should any additional maintenance requirements be
negotiated, such requirements will be in addition to those contained herein and would
be incorporated into Operator's total maintenance responsibilities. Should any
additional maintenance requirements be negotiated between the City and Operator
as related to any individual Qualified I -Net User site, the rate due Operator may be
adjusted during such negotiations to compensate Operator for such additional
maintenance responsibilities.
12.8 I -Net Use
Qualified Uses/PEG Origination Uses
The I -Net may be used by the City and any Qualified I -Net User for any non
commercial applications. The City agrees to require all Qualified I -Net Users as
defined by the City to stipulate and agree to this limitation. This limitation shall apply
to all Qualified I -Net Users. Notwithstanding any other provision of this Franchise,
any schools or libraries which are Qualified I -Net Users may provide access to
internet services to the public, schools, libraries and governmental entities.
Permitted uses of the I -Net include, by way of example and not limitation:
(A) High-speed transmission of GIS and other data to and from City
departments and to and from other organizations and the public;
(B) Transmitting live and stored instructional materials (Whether in
the form of data, video or otherwise) for distance learning and staff training purposes
to and from schools and to and from other organizations and the public;
(C) Providing videoconferencing among municipal and educational
locations and to other locations for municipal and educational purposes;
(D) Linking libraries and providing terminals at library locations that
allow members of the public to access library databases and other remote
databases;
(E) Providing for remote origination of video programming for Access
television and other purposes; and
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(F) Facilitating connections for internal telephone systems, security
systems and other critical public entity communications applications.
12.9 Warranties/Acceptance
The acceptance of the I -Net or any component thereof, or payment for service and
equipment, shall not waive any defect in the work or constitute acceptance of work or
equipment not in compliance with the applicable design and specification
requirements. Operator shall provide in its contracts for warranties of the work and
equipment satisfactory to the City and will provide for the enforcement of such
warranties and for the correction of work or equipment not provided in accordance
with applicable design and specification requirements or which is otherwise defective.
The City may terminate use of, and payment for, I -Net services or any portion thereof
based on demonstrated, verifiable non-performance or non-compliance by Operator
with the terms of this Franchise or the Service Agreement after giving Operator
reasonable notice and opportunity to correct the problem causing non-performance
or noncompliance.
12.10 Survival of I -Net Obligations
All I -Net obligations herein shall survive throughout the term of this Franchise and
remain obligations regardless of any sale or transfer of ownership or control of the
System and during any renewal of this Franchise, and in any event, shall survive
while the Cable System or any parts thereof remain in operation in the City.
SECTION 13. TECHNICAL STANDARDS
13.1 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.
13.2 Inspection of Construction
City shall have the right to inspect any construction or installation work performed
under this Franchise and to charge generally applicable inspection fees therefore. If
an unsafe condition is found to exist, the City, in addition to taking any other action
permitted under applicable law, may order Operator, in writing, to make the
necessary repairs and alterations specified therein forthwith to correct the unsafe
condition within the time specified by City. The City has the right to correct, inspect,
administer and repair the unsafe condition if Operator fails to do so within the time
specified, and to charge Operator therefore.
13.3 Cable System Performance Testing
(A) Operator shall, at its expense, perform all tests on its Cable System
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required by the FCC (including at least one (1) test point located within the City) and
shall maintain written records of its test results. Copies of such test results will be
provided to the City upon request.
(B) Notwithstanding Subsection (A) above, where there exists a pattern of
poor technical performance or quality on the Cable System, the City may upon thirty
(30) days prior written notice, require Operator to conduct performance testing on
additional test points located within the City. Operator 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:
special tests;
(1) the nature of the complaint or problem which precipitated the
(2) the Cable System component tested;
(3) the equipment used and procedures employed in testing;
(4) the method, if any, in which such complaint or problem was
resolved; and
(5) any other information pertinent to said tests and analysis which
may be required.
(C) All required technical performance or other System tests shall be at the
expense of the Operator and may be witnessed by representatives of the City. Upon
request, Operator will notify the City before any required technical proof -of -
performance or other testing occurs.
(D) Operator shall promptly take such measures as are necessary and
diligently continue the same until completion in order to correct any performance
deficiencies fully and to prevent their recurrence. Operator's failure to correct
deficiencies identified through this testing process shall be a violation of this
Franchise. Sites shall be re -tested within five (5) days following correction until
correction has been confirmed and satisfactory results are obtained.
SECTION 14. SERVICE EXTENSION
14.1 Service Availability
(A) In general, except as otherwise provided herein, Operator shall provide
a standard installation of Cable Service within seven (7) days of a request by any
Person within its Franchise Area. For purposes of this Section, a request shall be
deemed made on the date of signing a service agreement, receipt of funds by
Operator, receipt of a written request by Operator or receipt by Operator of a verified
verbal request. Operator 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 Subscribers, with additional charges for non-
standard installations computed according to a non-discriminatory methodology for
such installations, adopted by Operator and provided in writing to the City.
(3) At non-discriminatory monthly rates for all Subscribers, excepting
commercial customers, MDU Bulk customers and other lawful exceptions to uniform
pricing.
(B) 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 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 Operator and Customers in the area in which service may be expanded, the
Operator 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 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 Operator may require that the
payment of the capital contribution in aid of construction borne by such potential
customers be paid in advance.
SECTION 15. STANDBY POWER AND EMERGENCY ALERT SYSTEM
15.1 Standby Power
Operator shall provide standby power generating capacity at the System Headend
capable of providing at least twelve (12) hours of emergency operation.
15.2 Emergency Alert Capability
(A) In accordance with, and at the time required by, the provisions of FCC
Regulations, as such provisions may from time to time be amended, Emergency Alert
System ("EAS") activation will be accomplished in compliance with the FCC
approved Washington State EAS plan and the Local Area EAS Plan that applies to
Kitsap County or the City, whichever has already been submitted for approval to the
Washington State Emergency Communications Committee.
(B) Operator shall ensure that the EAS system is functioning properly at all
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times. It will test the EAS system periodically, in accordance with FCC regulations.
SECTION 16. FRANCHISE BREACHES; TERMINATION OF FRANCHISE
16.1 Procedure for Remedying Franchise Violations
(A) If City believes that Operator has failed to perform any material
obligation under this Franchise or has failed to perform in a timely manner, City shall
notify Operator in writing, stating with reasonable specificity the nature of the alleged
default. Operator shall have thirty (30) days from the receipt of such notice to:
(1) Respond to City, contesting City's assertion that a default has
occurred, and requesting a hearing in accordance with subsection (B), below;
(2) Cure the default; or
(3) Notify City that Operator 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, Operator shall promptly take all reasonable steps to
cure the default and notify City in writing and in detail as to the exact steps that will
be taken and the projected completion date. Upon five (5) business days' prior written
notice, either Grantor or Grantee may call an informal meeting to discuss the alleged
default. In such case, if matters are not resolved at such meeting, City may set a
hearing in accordance with subsection (B) below to determine whether additional
time beyond the thirty (30) days specified above is indeed needed, and whether
Operator's proposed completion schedule and steps are reasonable.
(B) If Operator 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 hearing in accordance with subsection (A)(1), or City
orders a hearing in accordance with subsection (A)(3), City shall set a public hearing
to investigate said issues or the existence of the alleged default. City shall notify
Operator of the hearing in writing and such hearing shall take place no less than
seven (7) days after Operator's receipt of notice of the hearing. At the hearing,
Operator shall be provided an opportunity to be heard, to present and question
witnesses, and to present evidence in its defense. At any such hearing, City shall not
unreasonably limit Operator's opportunity to make a record which may be reviewed
should any final decision of City be appealed to a court of competent jurisdiction. The
determination as to whether a default or a material breach of this Franchise has
occurred shall be within City's sole discretion, but any such determination shall be
subject to appeal to a court of competent jurisdiction.
(C) If, after the public hearing, City determines that a default still exists, City
shall order Operator to correct or remedy the default or breach within fourteen (14)
days of City notification or within such other reasonable timeframe as City shall
determine. In the event Operator does not cure within such time to City's reasonable
satisfaction, City may:
(1) Assess and collect monetary damages in accordance with this
Franchise;
(2) Terminate this Franchise; and
(3) Pursue any other legal or equitable remedy available under this
Franchise or applicable law.
(D) The determination as to whether a violation of this Franchise has
occurred pursuant to this Section herein shall be within the sole discretion of the City
or its designee. Any such determination by City shall be accompanied by a record, to
which Operator's contribution shall not be limited by City (i.e., City shall hear any
interested Persons and shall allow Operator an opportunity to be heard, to cross
examine witnesses, to present evidence and to make additions to the hearing
record). Any such final determination shall be subject to appeal to a court of
competent jurisdiction. Such appeal to the appropriate Court shall be taken within
thirty (30) days of the issuance of the determination of the City. City shall receive
notice from Operator of any appeal concurrent with any filing to a court of competent
jurisdiction.
16.2 Alternative Remedies
(A) No provision of this Franchise shall be deemed to bar the right of either
party to seek or obtain judicial relief from a violation of any provision of the Franchise
or any rule, regulation, requirement or directive promulgated thereunder. 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 either party to recover monetary
damages, as allowed under applicable law, or to seek and obtain judicial
enforcement of obligations by means of specific performance, injunctive relief or
mandate, or any other remedy at law or in equity.
(B) The City specifically does not, by any provision of this Franchise, waive
any right, immunity, limitation or protection (including complete damage immunity)
otherwise available to the City, its officers, officials, Councils, boards, commissions,
agents, or employees under federal, state, or local law including by example Section
635A of the Cable Act. The Operator shall not have any monetary recourse against
the City, or its officers, officials, Council, Boards, commissions, authorized agents or
employees for any loss, costs, expenses or damages arising out of any provision,
requirement of this Franchise or the enforcement thereof.
16.3 Assessment of Monetary Damages; Letter of Credit
Subject to Section 5.3 and 16.1:
(A) Operator shall deliver to the City an irrevocable and unconditional Letter
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of Credit, in a form and substance acceptable to the City, from a National or State
bank subject to reasonable approval by the City, in the amount of $25,000.
(B) The Letter of Credit shall provide that funds will be paid to the City, and
in an amount for liquidated damages charged pursuant to this Section, in payment for
any monies owed by the Operator to the City or any Person as a result of any
material acts or material omissions by the Operator pursuant to this Franchise or a
pattern of repeated violation of any provisions of this Franchise.
(C) In addition to the recovery of any monies owed by the Operator to the
City or any Person or damages to the City or any Person as a result of any material
acts or material omissions by the Operator pursuant to the Franchise, the City
following notice to the Operator and affording the Operator a reasonable opportunity
to cure may charge to and collect from the letter of credit the following liquidated
damages:
(1) For failure to provide data, documents, reports or information or
to cooperate with the City during an application process or system review or as
otherwise provided herein, the Liquidated Damages shall be $250.00 per day for
each day, or part thereof, such failure occurs or continues.
(2) Fifteen (15) days following notice from City or a failure of
Operator to comply with construction, operation or maintenance standards, the
Liquidated Damages shall be $500.00 per day for each day, or part thereof, such
failure occurs or continues.
(3) For failure to provide the services and the payments required by
this Franchise, including, but not limited to, the implementation and the utilization of
the PEG Access Channels, the Liquidated Damages shall be $500.00 per day for
each day, or part thereof, such failure occurs or continues.
(4) For Operator's breach of any written contract or agreement with
or to the City, the Liquidated Damages shall be $500.00 per day for each day, or part
thereof, such breach occurs or continues.
(5) For failure to comply with any of the provisions of this Franchise
or customer service standards, or other City ordinance for which a liquidated
damages is not otherwise specifically provided pursuant to this paragraph (C), the
liquidated damages shall be $250.00 per day for each day, or part thereof, such
failure occurs or continues.
(D) Each violation of any material provision of this Franchise shall be
considered a separate violation for which separate liquidated damages can be
imposed.
(E) If said Letter of Credit or any subsequent Letter of Credit delivered
pursuant thereto expires prior to twelve (12) months after the expiration of the term of
this Franchise, it shall be renewed or replaced during the term of this Franchise to
provide that it will not expire earlier than twelve (12) months after the expiration of
this Franchise. The renewed or replaced Letter of Credit shall be of the same form
and with a bank authorized herein and for the full amount stated in paragraph (A) of
this Section.
(F) The City and the Operator recognize the delays, expense and unique
difficulties involved in proving in a legal proceeding the actual loss sufferedby the
City as a result of the Operator's breach of this Franchise. Accordingly, instead of
requiring such proof, the City and the Operator agree that the Operator shall pay to
the City the sums set forth above for each day that the Operator shall be in breach of
the specific provisions of this Franchise. Such amounts are agreed by both parties to
be a reasonable estimate of the actual damages the City would suffer in the event of
the Operator's breach of such provisions of this Franchise.
(G) The bond(s) referred to in Section 5.3 (A) may be drawn upon by the
City for breach of a material provision after notice and opportunity to cure. The City
shall give Operator written notice of any intent to withdraw under this subsection.
Within seven (7) days following receipt of such notice, Operator shall restore the
bond(s) to the amount required under this Franchise. Operator's maintenance of the
bond(s) shall not be construed to excuse unfaithful performance by Operator or to
limit the liability of Operator to the amount of the bond(s) or otherwise to limit the
City's recourse to any other remedy available at law or in equity. Operator shall have
the right to appeal to the City Council for reimbursement in the event Operator
believes that a bond was drawn upon improperly. Operator shall also have the right
of judicial appeal if Operator believes a bond has not been properly drawn upon in
accordance with this Franchise. Any funds the City erroneously or wrongfully
withdraws from the bond(s) shall be returned to Operator without interest from the
date of withdrawal.
(H) The assessment of liquidated damages does not constitute a waiver by
the City of any other right or remedy it may have under the Franchise or applicable
law, including its right to recover from Operator any additional damages, losses,
costs and expenses that are incurred by City by reason of the breach of this
Franchise.
(1) Operator's maintenance of the security required herein or by applicable
code shall not be construed to excuse unfaithful performance by the Operator of this
Franchise; to limit liability of the Operator to the amount of the security; or to
otherwise limit the City's recourse to any other remedy available at law or equity.
16.4 Revocation
(A) This Franchise may be revoked and all rights and privileges rescinded if
a material breach of the Franchise is not cured following Operator's receipt of notice
pursuant to Section 16.1, or in the event that:
(1) Operator fails to perform any material obligation under this
Franchise;
(2) Operator attempts to evade any material provision of this
Franchise or to practice any fraud or deceit upon the City or Subscribers;
(3) Operator makes a material misrepresentation of fact in the
negotiation of this Franchise;
(4) Operator fails to maintain the required customer service
location(s) within the City limits as provided in this Franchise;
(5) Operator abandons the System, or terminates the System's
operations;
(6) Operator fails to restore service to the System after three
consecutive days of an outage or interruption in service; except in the case of an
emergency or during a force majeure occurrence, or when approval of such outage
or interruption is obtained from the City, it being the intent that there shall be
continuous operation of the System; or
(7) Operator becomes insolvent, unable or unwilling to pay its debts,
or is adjudged bankrupt, there is an assignment for the benefit of Operator's
creditors, or all or part of the Operator's System is sold under an instrument to secure
a debt and is not redeemed by Operator within thirty (30) days from said sale.
(8) Operator or an Affiliate challenges the legality or enforceability of
this Franchise in a judicial or administrative (for example, FCC) proceeding.
(B) Additionally, 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 the Operator (at the option of the City and subject to applicable law)
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 receivers or trustees have, within one hundred twenty (120)
days after their election or appointment, fully complied with all the material terms and
provisions of this Franchise, and have remedied all material defaults under the
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Franchise. Additionally, the receivers or trustees shall have executed an agreement
duly approved by the court having jurisdiction, by which the receivers or trustees
assume and agree to be bound by each and every term and provision of this
Franchise.
(C) If there is a foreclosure or other involuntary sale of the whole or any
part of the plant, property and equipment of Operator, City may serve notice of
revocation on Operator and to the purchaser at the sale, and the rights and privileges
of Operator under this Franchise shall be revoked thirty (30) days after service of
such notice. unless:
(1) 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 City to assume
and be bound by all of the terms and provisions of this Franchise.
16.5 Removal
(A) In the event of termination, expiration, revocation or nonrenewal of this
Franchise, and after all appeals from any judicial determination are exhausted and
final, City may order the removal of the System facilities from the Franchise Area at
Operator's sole expense within a reasonable period of time as determined by City. In
removing its plant, structures and equipment, Operator 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 Operator's removal
of its equipment.
(B) If Operator fails to complete any required removal to the satisfaction of
City, City may cause the work to be done, and Operator shall reimburse City for the
reasonable costs incurred within thirty (30) days after receipt of an itemized list of
City's expenses and costs, or City may recover its expenses and costs from the
security, or pursue any other judicial remedies for the collection thereof. Any
expenses incurred in the collection by City of such obligation shall be included in the
monies due City from Operator, including reasonable attorneys' fees, court expenses
and expenses for work conducted by City's staff or agents.
SECTION 17. ABANDONMENT
If the Operator abandons its System during the Franchise term, or fails to operate its
System in accordance with any duty to provide continuous service, the provisions of
this Franchise and the City Code shall apply and the City, at its option, may operate
the System or; designate another entity to operate the System temporarily until the
Operator restores service under conditions acceptable to the City, or until the
Franchise is revoked and a new franchisee is selected by the City. If the City
designates another entity to operate the System, the Operator shall reimburse the
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City for all reasonable costs, expenses and damages incurred, including reasonable
attorney fees, court expenses and attributed expenses for work conducted by City's
staff or authorized agents.
SECTION 18. FRANCHISE TRANSFER
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 be by the City
Council, acting by ordinance or resolution.
(B) The Operator 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 Operator.
The word "control" as used herein is not limited to majority stockholders but includes
actual working control in whatever manner exercised. Every change, transfer or
acquisition of control of the Operator 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 shall make a written request to the
City for its approval of a sale or transfer or change in control and shall furnish all
information required by law and the City.
(D) In seeking the City's consent to any change in ownership or control, the
proposed transferee or controlling entity shall indicate whether 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 the proposed transferee 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 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
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maintain and operate the Cable System for the remaining term of the Franchise.
(E) The City shall act by ordinance or resolution on the request within one
hundred twenty (120) days of receipt of the FCC Form 394 application, provided it
has received a complete application. 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, Operator shall file with the City a copy of
the deed, agreement, lease or other written instrument evidencing such sale or
transfer of ownership or control, certified and sworn to as correct by Operator and the
transferee or controlling entity, and the transferee or controlling entity 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 Operator is
not replaced by another entity, the Operator 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. The approval of any change in control shall not be
deemed to waive any rights of City to subsequently enforce noncompliance issues
relating to this Franchise.
(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 Operator 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 and to the resolution of
outstanding and unresolved issues of noncompliance with the terms and conditions
of this Franchise by Operator.
(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 entity controlling, controlled by or under the same
common control as Operator, 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,
Operator 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 Operator's responsibilities and capabilities to meet all of its obligations
under the provisions of this Franchise.
SECTION 19. PROHIBITED PRACTICES AND NOTICES
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19.1 Preferential or Discriminatory Practices Prohibited
Operator shall not discriminate in hiring, employment or promotion on the basis of
race, color, ethnic or national origin, religion, age, sex, sexual orientation, or physical
or mental disability. Throughout the term of this Franchise, Operator shall fully
comply with all equal employment and non-discrimination provisions and
requirements of federal, State and local laws, and rules and regulations relating
thereto.
19.2 Notices
Throughout the term of this 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 to
such respective address, and such notices shall be effective upon the date of
mailing. At the effective date of this Franchise:
Operator's address shall be:
Wave Broadband
4519 SE Mile Hill Drive
Port Orchard, WA 98366
Attention: Jerry Rotondo
With a copy to:
Jim Penney, EVP Business and Legal Affairs
401 Kikland Parceplace Suite 500
Kirkland, WA 98033
City's address shall be
City Of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
Attention: Mayor
With Copies to
City Of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
Attention: City Attorney
SECTION 20. MISCELLANEOUS PROVISIONS
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20.1 Cumulative Rights
Subject to applicable law, all rights and remedies given to the City by this Franchise
or retained by the City herein shall be in addition to and cumulative with any and all
other rights and remedies, existing or implied, now or hereafter available to the City,
at law or in equity, and such rights and remedies shall not be exclusive, but each and
every right and remedy specifically given by this Franchise or otherwise existing or
given may be exercised from time to time and as often and in such order as may be
deemed expedient by the City and the exercise of one or more rights or remedies
shall not be deemed a waiver of the right to exercise at the same time or thereafter
any other right or remedy.
20.2 Costs to be Borne by Operator
Operator shall pay for all costs of publication of this Franchise, and any and all
notices prior to any public meeting or hearing provided for pursuant to this Franchise.
20.3 Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted successors
and assigns.
20.4 Authority to Amend
This Franchise may be amended at any time by written agreement between the
parties.
20.5 Venue
The venue for any dispute related to this Franchise shall be in the United States
District Court for the Western District of Washington or in the Kitsap County Superior
Court in Port Orchard, Washington.
20.6 Governing Law
This Franchise shall be governed in all respects by federal law, the laws of the State
of Washington and local laws.
20.7 Construction of Franchise Agreement
The provisions of this Franchise shall be liberally construed to promote the public
interest.
20.8 Captions
The captions and headings of this Franchise are for convenience and reference
purposes only and shall not affect in any way the meaning or interpretation of any
provisions of this Franchise.
20.9 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
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such relationship with the other.
20.10 Waiver
The failure of either party at any time to require performance by the other of any
provision hereof shall in no way affect the right of the other party hereafter to enforce
the same. Nor shall the waiver by either party 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.
20.11 Severability
If any Section, subsection, paragraph, term 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, term or provision of this Franchise, all of which
will remain in full force and effect for the term of the Franchise.
20.12 Compliance with Federal, State, and Local Laws
The Operator shall comply with applicable federal, state and local laws, rules and
regulations now existing or hereafter adopted.
20.13 Force Majeure
The Operator shall not be held in default under, or in noncompliance with, the
provisions of this Franchise, nor suffer any enforcement or imposition of damages
relating to noncompliance or default, where such noncompliance or alleged defaults
occurred or were caused by circumstances reasonably beyond the ability of the
Operator to anticipate and control, including war or riots, civil disturbances, floods or
other natural catastrophes, labor stoppages, slow downs, power outages exceeding
back-up power supplies or work delays caused by waiting for utility providers to
service or monitor their utility poles to which the Operator's Cable System is
attached.
20.14 Attorneys' Fees
If any action or suit arises in connection with this Franchise, the prevailing party
(either the City or Operator, as the ease 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.
20.15 Entire Agreement
This Franchise and all Exhibits represent the entire understanding and agreement
between the parties hereto with respect to the subject matter of this agreement and
supersede all prior oral negotiations and written agreements between the parties.
IN WITNESS WHEREOF this Franchise is signed in the name of the City of
Port Orchard, Washington, a municipal corporation, this 28th day of September, 2006.
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Mayor Kim E. Abel
Attest:
Michelle Merlino, Interim City Clerk
Port Orchard, Washington
APPROVED AS TO FORM
� Accepted and approved this J_2 _!day of _1Q»,yzv____, 2006.
ATTEST:
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Wave Division IV, LLC
By:----
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