HomeMy WebLinkAbout3617ORDINANCE NO. 6' / I
AN ORDINANCE of the City of Port Angeles, Washington,
authorizing and granting a television cable franchise to WAVE
Division 111, LLC.
WHEREAS, cable television is an important service to many in the City of Port
Angeles; and
WHEREAS, the City of Port Angeles and WAVE Division 111, LLC have agreed on
terms, conditions, and provisions for a new television cable franchise to replace the existing
franchise; and
WHEREAS, the terms, conditions, and provisions for a new television cable franchise
are set forth in full in the Franchise Agreement, which is attached hereto and marked as
Exhibit "A"; and
WHEREAS, the City Council finds that the terms, conditions, and provisions for a
new television cable franchise are in the best interests of the citizens of Port Angeles,
NOW, THEREFORE, the City Council of the City of Port Angeles, Washington, do
ordain as follows:
Section 1. The City of Port Angeles approved and adopts the Franchise Agreement,
dated January 15, 2019, which is as attached hereto as Exhibit "A," and is incorporated into
this ordinance as if set out in full.
Section 2. The City Clerk and the codifiers of this ordinance are authorized to
correct scrivener's/clerical errors, references, ordinance numbering, section/subsection
numbers and any references thereto.
-1-
Section 3. This Ordinance exercises authority granted exclusively to the City
Council and is not subject to referendum. It shall be in force and take effect 5 (five) days
after publication according to law.
PASSED by the City Council of the City of Port Angeles, Washington, at a regular
meeting of said Council on the Tt5'
%ay of January, 2019.
ATTEST:
Kari Martinez -Basle erk
PUBLISHED: Li LID, 2019
1
By Summary
Sissi Bruch Mayor
APPR ED AS TO F7RM-
William E. Bloor, City Attorney
N
-
THE CITY OF PORT ANGELES
r
WAVE DIVISION III LLC.
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(Table of Contents page numbers are subject to change.) PAGE
SECTION 1. GRANT OF FRANCHISE
1'3
1.1
Grant
1
1.2
Tenn --------------'----------------------------_____________1
Non- [}iacrrnination and Equal Employment Opportunity
1.3
Effective Date --------------------------------------------------------------------------------------------
1
1.4
Franchise Area ----------------------------------------------1
7.1
1.5
Effect ofAcceptance -----------------------------------------------------------------------------------
1
1.8
Rights Reserved -----------------------------------------------------------------------------------------
1
1.7
Franchisee Compliance -------------------------------------------------------------------------------
1
1.8
Affiliates Must Comply ---------------------------------------------------------------------------------
2
1.9
Legal Qualifications -------------------------------------------------------------------------------------
2
1.10
Competitive Equity --------------------------------------------2
7.7
SECTION2. SHORT TITLE AND 3-4
SECTIONJ. FRANCHISE- LIMITATIONS 4-5
SECTION4[ NON-EXCLUSIVE FRANCHISE AND COMPETITION ENCOURAGED ------------ 5
SECTION 5. NO WAIVER -----~~-------------------------------------~~------5
SECTION 6. CUSTOMER PROTECTION 5-6
0.1
Customer Protection 5
6.2
Pi 5
6.3
Maintenance and Complaints 5
6.4
Non- [}iacrrnination and Equal Employment Opportunity
8
0.5
Parental Control Device ------------------------------------------------------------------------------- 6
SECTION
7. SYSTEM FACILITIES, EQUIPMENT, AND SERVICES ------------------~6-14
7.1
Cable System Design and Functionality -----------------------------------------------------------
6
7.2
Interconnection - ---------------------------------------------O
7.3
Reserved --------------------------------------------------------------------------------------------------
8
7.4
Cable System Upgrade --------------------------------------------------------------------------------
8
7.5
Performance Testing -----------------------------------------------------------------------------------
8
7.0
System Inspections -------------------------------------------------------------------------------------
9
7.7
Other Construction Procedures ----------------------------------------------------------------------
9
7.8
System Maintenance -----------------------------------------------------------------------------------
g
7.9
System Performance -----------------------------------------------------------------------------------
S
7.10
Future System Upgrades/Rebuilds -----------------------------------------------------------------
10
7.11
Service Availability --------------------------------------------------------------------------------------
1O
7.12
Public, Educational and Governmental Use ------------------------------------------------------
11
A. Designated Access Provider .......................... ..'..............'...... ............................11
B. PEG Access Channel Capacity -------------------------..11
C. Requirements Regarding Rules and Procedures for Use ofPEG Access Channels ... 11
D. PEG Channel Promotion ...................... .......... ................ ......... ..........................
11
E. PEG Channel Locations ...............................................................................
...... .12
F. PEG Access Grants and Support for PEG Channels ............... ..................
.......... 12
G. Complimentary Cable Drops and Cable Service for Public Buildings .................
... 13
SECTION SYSTEM FACILITIES, EQUIPMENT, AND SERVICES (Contd)
7.13 No City Control ------------------------------------------------------------------------------------------ 14
7.14 Emergency Alert System ------------------------------------------------------------------------------ 14
SECTION 8 CONSTRUCTION STANDARDS ---- — ---------------- — ----------- — --------------- — -------- 14-15
SECTION 9. RATE REGULATION --------------------- — ------------ — ---------------------------------------- 15
SECTION 10. FRANCHISE FEES ------------------------------- — ----------------------------------------------- 15-16
SECTION 11. PROTECTION OF CITY AND ENFORCEMENT --
PERFORMANCE BOND --------------------------------------------------------------- — -------- 16-17
SECTION 12. PROTECTION OF CITY AND ENFORCEMENT —
APPROVAL OF SURETIES: RELATION TO OTHER REMEDIES -------------------17
SECTION 13. TERMINATION, REVOCATION, FORFEITURE -------------------------------------------17-18
SECTION 14. REMEDIES -- LIQUIDATED DAMAGES -----------------------------------------------------18
SECTION 15. REMEDIES— CUMULATIVE ------------------------------------ — ------------------------------ 19
SECTION 16. REMEDIES -- CONTINUITY OF SERVICE --------------------------------------------------19
SECTION 17. BOOKS AND RECORDS -- INSPECTION -------------------------------------------------- 19-20
SECTION 18. PERFORMANCE MONITORING -------------------------------------------------------------- 20
SECTION 19. MISCELLANEOUS - — -------------------------------------------- — ------------------------------- 20-23
19.1 Time of Essence ---------------------------------------------------------------------------------------- 20
19.2 Effect of Preemption; Federal and State Law ----------------------------------------------------20
19.3 Force Majeure ------------------------------------------------------------------------------------------- 20
19.4 Settlement and Release ------------------------------------------------------------------------------- 21
19.5 Consideration for Release ---------------------------------------------------------------------------- 21
19.6 Written Notice -------------------------------------------------------------------------------------------- 21
19.7 Indemnification ------------------------------------------------------------------------------------------- 21
19.8 Benefit to City -------------------------------------------------------------------------------------------- 23
19.9 Third Party Right of Action ------------------------------------------------------------------------------ 23
19.10 Washington Law Applies ----------------------------------------------------------------------------- 23
APPENDICES
A. PEG Links
B. Complimentary Cable Drops and Service
C. Customer Service Standards
SECTION 1. GRANT OFFRANCHISE
11 Grant. The City of Port Angeles, Washington (hereinafter "City") enters into this
agreement with Wave Division Ui LLC. (hereinafter "Franchisee") for the provision of cable
service within its boundaries. The City hereby grants tmFranchisee anon-exclusive Franchise to
operate o Cable System to provide Cable Service in the City' and to use the streets and public
ways to install, oVDstrU[t, r8poir, necOnstruCt, maintain in. On, over, undHr, up0n, across and along
any street or hiQhvvuy, such poles, vvinaS' cable, conductors, ducts, conduit, vaults, manholes,
amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to
said Cable System for that purpose, subject tothe terms and conditions Vfthis agreement, and
applicable law.
1.2 Term. The Franchise granted hereby shall expire ten (10) years after its Effective Date
(os defined in Section 1.3) unless lawfully terminated in accordance with its terms or other
applicable law.
1.3 Effective Date. This Franchise shall become effective on the 31st day following its
adoption ("Effective Date"), provided that prior to that date the Franchisee: (a) accepts in writing
this Franchise; and /b\provides all documents required bythe Franchise. |fFranchisee has not
satisfied these conditions prior to the 31st day following its adoption, then the City may, at its
option, declare the Franchise forfeitgd, and ofnOforce or effect.
14 Franchise Area.The Franchise area for which this Franchise iegranted consists ofall
areas |nc8b*d within the Port Angeles City limits as they are constituted on the Effective [)ate Of
the Franchise ormay in the future be constituted.
1.5 Effect of Acceptance. Byaccepting the Franchise, the Franchisee: (a)acknowledges
and accepts the City's legal right to issue and enforce the Franchise; /b\ agrees that it will not
oppose intervention by the City in any proceeding affecting the enforcement ofits rights under
this franchise; (o) 8Conptg and agrees tOall provisions contained herein; and /d\ agrees that the
Franchise was granted pursuant tVprocesses and procedures consistent with Federal and State
|avv' and agrees that it will not raise any claim nrdefense tOthe contrary.
1.6 Rights Reserved.The rights granted inthis Franchise are subject tothe City's exercise
of its police powers and nothing in this Franchise shall be read to limit the exercise of [hose
pmvvgna. The City, among Other thingS, does not waive requirements of various nodes.
ordinances, and neS0|uUOnS, including zoning codes and codes regarding building permits and
fees, Ortime ormanner Ofconstruction, all ofwhich shall apply. Any generally applicable fees or
charges assessed by the City, so long as they are consistent with applicable law, shall be paid in
addition to the Franchise Fee required under this Franchise.
1.7 Franchisee ConnUianceand RelaUonshir)toOther Laws.
A. Franchisee's Franchise is subject tOall lawful terms, conditions, and provisions Of
this Franchise; of Port Angeles City Code Chapter 11.14 ("Telecommunications Facilities Within
the Rights of Way") as the Sarn8 is now or hereafter amended by lawful exercise of the City's
police powers; and of the CD/nrnuniC@bOns Act of 1934, as amended by the Cable Consumer
Protection Act of 1984, the Cable Communications Consumer Protection and Competition Act of
1992, and the Telecommunications Act of 1996, as the same is now or hereafter amended.
B. Franchisee's rightsheroundermneeubeuttothulawfu|exenjsenftheCitvsooice
in the interest of public health, safety and welfare, which may impact the Franchisee in its
operation of the Cable 8vstenn, as o proper exercise of the City's police power. Franchisee
acknowledges that the City may modify its regulatory policies by lawful exercise of the City's police
powers throughout the term ofthe Franchise.
C. Franchisee reserves all rights it may have to challenge the lawfulness of any City
Code provision or modification whether such rights arise in contract or at law. TheCityrooan/es
all its rights and defenses to such challenges whether arising in contract or at law.
D. |tisthe intent ofboth parties that each party shall enjoy 8||hghtGandbe subject to
all obligations Ofthis Franchise for the entire term Ofthe Franchise and tnthe extent any provisions
have continuing effect, after its expiration. Hqvvever, both parties recognize that the technology
of cable television and related technologies are in a state of flux and that regulatory conditions
and franchise rights and powers, may change drastically during the term Ofthis Franchise. Should
such changes occur, the City and Franchisee shall negotiate ingood faith tDamend the Franchise
to preserve the rights and obligations of the City and Franchisee hereunder to the fullest extant
consistent with such changes.
1.8. Affiliates Must Comply. Any affiliate or joint venture or partner of the Franchisee
involved inthe management Uroperation Ofthe Cable System inthe City that would constitute a
Cable Operator Dfthe Cable System iSsubject tothe limitations Ofand shall comply with the terms
and conditions of this Franchise. The Franchisee shall be fully liable for any act or omission of
an affiliate that controls the Franchisee Or is responsible in any manner for the management of
the Cable System that results in o breach of this Agreement ora violation of the Port Angeles
Municipal Code, asifthe act oromission was the Franchisee's act oromission.
1.9 Legal Qualifications. The Franchisee affirms that itmeets all ofthe legal qualifications
1.10 Competitive Equit
A. The City reserves the right to grant additional franchises or similar authorizations
to provide Video Programming services via Cable Systems or similar wireline systems located in
the Right OfWay. The City intends to treat wireline competitors in a nondiscriminatory manner in
keeping with Federal law. If, following the Effective Date of this Franchise, the City grants Such
an additional franchise or authorization to use the Right of Way to provide such services and
Franchisee believes the City has done so on terms materially more favorable than the obligations
under this Agreement, then the provisions of this subsection 1. 10 will apply.
B. As part of this Franchise, the City and Franchisee have mutually agreed upon
the following terms asacondition ofgranting the Franchise, which terms may place the
Franchisee at a competitive disadvantage if not required of a wireline competitor: Franchise Fees,
PEG funding, PEG Access Channels, service availability requirements, records and reports, and
customer service obligations (hereinafter "Material Obligations"). The City and Franchisee agree
that these Material Obligations bear nOrelationship [Othe technology employed bythe Franchisee
orawireline competitor and assuch can reasonably beexpected twbeapplied fairly across all
wireline competitors. The City and Franchisee further agree that this provision shall not require
8word for word identical franchise Vrauthorization for competitive equity SOlong aethe regulatory
and financial burdens oneach entity are generally equivalent.
C. Within one hundred and eighty (180) dovo of City codification of wireline
competitor's franchise or similar authorization. Franchisee must notify the City in writing of the
Material Obligations in this Franchise that exceed the Material Obligations of the wireline
competitor's franchise orsimilar authorization. Within sixty (GO)days ofreceiving such notice, the
City and the Franchisee shall meet to discuss the franchise modifications sought by the
Franchisee. The City shall have one hundred (120) days to reach agreement with the Franchisee
or dispute the o|minns made by the Franchisee. In the event the City disputes that the Material
Obligations are different, Franchisee may bring an action in Federal or State court for o
determination as to whether the Material Obligations are different and as to what franchise
amendments would be necessary to remedy the disparity. A{ternaUve|y. Franchisee may notify
the City that it elects to immediately commence the renewal process under 47 U.S.C. § 540 and
tmhave the remaining term mfthis Franchise shortened tonot more than thirty (3O)months.
O. Nothing in this subsection 1.10 is intended to alter the rights or obligations of
either party under applicable Federal or State |ovv. and it shall only apply to the extent permitted
under applicable |@vv and FCC orders. In no event will the City be required to refund or to offset
against future amounts due the value ofbenefits already received.
E. This provision does not apply if the City is ordered or required to issue a franchise
on different terms and conditions, Or it is |8g@||y unable to do GO; and the relief is contingent on
the new Cable Operator actually commencing provision Of service in the market to its first
customer. Should the new Cable Operator fail to continuously provide sen/ice for period of six
(8) months, the City has the right to implement this Franchise with its original tOnnS upon one
hundred eighty /18U\days' notice to Franchisee.
F. This Section does not apply to open video systems, nor does it apply to common
carriersystemSexernptedhnmfranchioemaquinemen[spunoumntto47U.8.C.Q571;orbJgvstemS
that serve less than five percent (5Y6)Ofthe geographic area 0fthe City; Vrtosystems that only
provide video services via the public Internet.
SECTION 2. SHORT TITLE AND DEFINITIONS
21 This Franchise shall be known and be cited as the "City of Port Angeles and Wave
Division U[ LLC Franchise Agreement." The definitions set forth in Port Angeles City Code
Chapter 11.14/"TelecVnnnuniCa1onFacilities Within the Rights -of VVax"\pertain UJthis Franchise
Agreement and shall be relevant to the purposes and meaning of this Franchise Agreement. In
addition, the following terms, phrases, words and their derivations have the meaning given herein.
"Cable Act^, shall refer bzthe Cable Communications Policy Act of1S84. 47 U.S.C. §
521 Et sea., as amended by the Cable Television Consumer Protection and C0rnpSUUnn Act of
1g92,theTe|ecornrnunioeUpnSActof1g98'andmsitrnaybefurtherarnend8dduhngthetenmof
the Franchise.
"Cable Operator" rneeny any person orgroup ofpersons: (a) who provides cable
service over a cable system and directly or through one or more affiliates owns e significant
interest in such cable system; Or/b\who otherwise controls pris responsible for, through any
arrangement, the management and operation ofsuch acable system.
"City," when used to refer to o geographic area, means the City of Port Angeles, a
political subdivision of the State of Washington, in its present incorporated form or in any later
recognized, consolidated, enlarged, orreincorporated form; when used Vorefer hoanaction taken
by an eniitv, the term xaherS to the governing body of the City of Port Angeles or any entity
authorized toact nO its behalf.
"Enabling Ordinance" mr^PAIVIC"means the Ordinance of the City Council of the
City of Port Angeles known as Port Angeles City Code Chapter 11.14 ("Telecommunication
Facilities Within the FiightS-PfVVav^).
"Franchise Agreement" or "Franchise" shall refer to this contract between the City
and the Franchisee, entered into in accordance with the terms of the Port Angeles City Code.
"Franchisee" means Wave Division 111, LLC, the entity to which this Cable Franchise
is granted by the Port Angeles City Council, and its lawful and permitted successors, assigns, and
transferees.
"Normal Business Hours" means those hours during which most similar businesses
imthe community are open tnserve customers. |nall cases, Normal Business Hours shall include
some evening hours o1least one (1) night per week and some weekend hours.
2.2 All vv0nda appearing in this Franchise that are identical tnthe words defined in Section
2.1 mhm|| have the meanings set forth in Section 2.1. When not inconsistent with the context,
words used in the present tense include the future, words in the plural number include the singular
number, and words inthe singular number include the plural number. The words "Sha||"and "vvi||"
are mandatory and "rnay"ispermissive. Words not defined herein shall bggiven the meanings
set forth in the Cable Act, or if not defined therein, the nlaoniOg set h]dh in the pAyWC Section
11.14.020, and, if not defined therein, shall be given their common and ordinary meaning.
SECTION 3. FRANCHISE —LIMITATIONS
31 The Franchise does not confer rights Other than as provided by this Franchise
Agreement, oraemandated bvFederal orState law.
3.2 No privilege or exemption is granted or conferred except those specifically prescribed
herein.
3.3 The City may delegate its authority except as prohibited by State |mvv. except the City
Council shall have sole authority to conduct any required hearings regarding any alleged
violations of this Franchise by Franchisee, and may not delegate any authority to issue any
decision regarding such alleged violations to any other person orentity.
34. In addition to any immunities that the City may have under Federal or State law, and
except as otherwise required by applicable |gvv. the Franchisee shall have no recourse against
the City for any loss, cost, expense, or damage arising out of any provision or requirement of this
Franchise Agreement or Enabling Ordinance, or because of their enforcement Or non-
enforcement, except for claims arising from: (a) the City's breach of the Franchise Agreement; Or
(b) the gross negligence or willful misconduct of the City or its representatives.
3.5 The Franchisee shall atall times besubject Lothe lawful exercise of the police power
ofthe City, and its other lawful authority.
3.6. This Franchise concerns the provision of Cable Services only. Nothing in this
Franchise is intended to expand or contract the City's rights to regulate non -Cable Services nor
the Franchisee's right to provide lawful services over its Cable System.
3.7 Nothing in this Franchise Agreement shall be read to create an expectancy of renewal
or to in any respect entitle the Franchisee to renewal or extension of this Franchise, except as
may be expressly required by applicable law.
3.8 Any privilege claimed under any Franchise by the Franchisee in any street or other
public property shall be subordinate to any lawful occupancy of the streets or other public property
prior to May 31, 2002, subject to the Port Angeles Municipal Code.
SECTION 4. NON-EXCLUSIVE FRANCHISE AND COMPETITION ENCOURAGED
4.1. This Franchise and the right it grants to use and occupy the public right of way is not
exclusive and does not explicitly or implicitly: (a) preclude the issuance of other franchises to
operate Cable Systems within the City; (b) affect the City's right to authorize use of the public right
of way by other persons to operate Cable Systems; or (c) affect the City's right to itself construct,
operate or maintain a Cable System.
SECTION 5. NO WAIVER
5.1 The failure of the City, upon one or more occasions, to exercise a right or to require
compliance or performance under this Franchise or any other applicable law shall not be deemed
to constitute a waiver of such right or a waiver of compliance or performance, unless such right
has been specifically waived in writing.
5.2 Waiver of a breach of this Franchise or the Enabling Ordinance is not a waiver of any
similar or different breach. Neither the granting of this Franchise nor any provision herein shall
constitute a waiver or bar to the exercise of any governmental right or power of the City, including
without limitation the right of eminent domain.
SECTION 6. CUSTOMER PROTECTION
6.1 Customer Protection. The Franchisee hereby represents and warrants that it meets
or exceeds the requirements for customer protection established by the City and attached hereto
as Appendix C. The Franchisee agrees that it shall abide by the terms and conditions therein, as
the same may be lawfully amended or supplemented from time to time and be subject to the
remedies set forth in Sections 14 through 16 of this Agreement for violations of the customer
protection standards, as amended or supplemented.
6.2 Privacy. The City and the Franchisee shall comply with applicable law regarding
subscriber privacy and the collection and use of subscriber information.
6.3 Maintenance and Complaints.
A. The Franchisee shall render efficient service, make repairs promptly, and
interrupt service only for good cause and for the shortest time possible.
B. Complaints from customers regarding cable service provided by Franchisee or
regarding Franchisee's operations under the terms of the Franchise which are made or escalated
to Franchisee's customer service center shall be logged. The Franchisee will maintain a summary
5
of complaints for three (3)years. Summaries Vfthe complaints shall be provided to the City on
request.
C. The Franchisee ehe|| maintain and repair its facilities sufficiently to comply with
this Franchise and the City's Customer Service Standards under normal operating conditions and
to respond to subscriber complaints, loss of service, or requests for service.
D. All subscribers and members of the general public in the City may direct
complaints and inquiries regarding the Franchisee's service orperformance tnthe City. After the
date Of this Franchise, the City may establish a Cable CO/DrDiSGiOO as a duly authorized City
agency. In such event, subscribers and members of the general public in the City may direct
m}rnp|8in[S and inquiries to such Cable Commission. Franchisee will, in good faith, work with the
Cable Commission tmrespond tVsuch inquiries and complaints.
6.4
A. Throughout the term of this Franchise, the Franchisee shall fully comply with
applicable law regarding equal employment opportunity. In the event the Franchisee is at any
time determined by the FCC not to be in compliance with Said FCC n/|eo Or regulations, the
Franchisee shall notify the City within 15 days of its notice of such noncompliance from the FCC.
B. The Franchisee shall not, in its rates or charges, or in the availability ofthe
services orfacilities Cfits Cable System, orinany other respect, make orgrant undue preferences
or advantages to any subSCriber, potential subscriber, or group of subscribers Or potential
subscribers On the basis of age, r@ce, onaed, religion, color, sex, national origin. nnDhta| status,
sexual orientaUon, physical or nl8nba| disability, or political mffi|iaUon, nor shall the Franchisee
subject any such persons orgroup ofpersons toany undue prejudice oranydioadvanbage. The
Franchisee may offer promotional discounts to attract ormaintain subscribers provided that such
discounts are offered on a non-discriminatory basis to similar classes or types of subscribers
throughout the Franchise Area. Subject to FCC rules and regulations, this section shall not
prohibit the Franchisee from publishing different rates for different classes of subscribers, so long
as the rates are identical for every subscriber in each class. [)iffamant rates may be offered to
commercial orbulk rate subscribers.
C. The Franchisee shall not deny cable service [Oany group Vfpotential subscribers
because of the income of the residents of the area in which the group resides.
D. The Franchisee shall comply with all applicable federal, state, and local |avvo
concerning the accessibility nfits services to people with disabilities. All programming received
by the Franchisee with closed -captioning shall be retransmitted bythe Cable System including
the closed -caption signal.
0.8 Parental Control Device. Upon request, the Franchisee shall provide parental control
capability tuany subscriber.
SECTION 7. SYSTEM FACILITIES, EQUIPMENT, AND SERVICES
71. Cable System Desicin and Functionality
A. As of the effective date of this Agreement, the Franchisee operates, maintains
of fiber optic cable deployed from the Franchisee's Haadond to Franchisee's fiber optic nodes,
tying into Franchisee's coaxial Cable System serving subscribers.
B. The Franchisee shoUbonsnl�aU its Signals tO Subscribers in stereo, provided
tha[sudlSi nakyanefurniahedtothe Franchisee instereo.
C. Two-way activated capacity supporting interactive services, which may include
but not be limited to digital video recorders, shall be operated and maintained in the Cable System.
D. The Headendhas 24-hmurbackup power supply. Each node power supply has
a minimum three-hour backup and hub sites and optical transfer nodes have three-hour backup
power supplies. Such equipment has been constructed and will be maintained so as to cut in
automatically upon failure of the commercial utility power, and to revert automatically to a standby
mode when alternating current power returns and complies with all utility and other safety
regulations to prevent the alternate power supply from powering a "dead" utility line in order to
prevent injury to any person.
E. The Cable System delivers and shall continue hzdeliver throughout the term of
this Agreement high definition ("HD") Signals.
F. Franchisee shall install and maintain necessary equipment to ensure that all
closed captioning programming received by the Cable System shall include the closed caption
signal as long as the closed caption signal is provided consistent with FCC standards.
G. Franchisee agrees to maintain the [:ab|R System with sufficient capability and
technical quality to comply with the requirements of this Franchise and which meets or exceeds
current and future FCC technical queUb/ standards at 47 C.F.R. 8 76 Subpart K. or any future
section oodesigned bythe FCC.
H. The Franchisee shall comply with all applicable laws, as they may from time to time
be amended, concerning system compatibility with Subscribers' consumer electronics equipment.
|. PEG LinksNideo Feeds. C)nthe effective date Ofthis Franchise, the Franchisee
provides and shall continue to provide throughout the term of this Franchise, subject to the terms
of this Section 7.1.1, g dedicated fiber optic link between the COrnrnunib/ Media Center ("CIVIC")
operated by the City or through its Designated Access Provider ("DAP") and the Franchisee's
cable system serving Port Angeles. This bi-directional connection will permit the City or its [}AP
to Send and receive PEG signals from other locations Served by PEG Links described in this
Section 7.1.1 and to send PEG signalsto Franchisee for distribution as described inthis Franchise.
1. Upon ninety (90) days written notice by the City, the Franchisee will provide
dedicated fiber links (which may share fiber for all or a part of the route) which connect City Hall
and the Port Angeles High School to the Community K8Bdi8 Center and Franchisee's heodend
and shall provide and maintain these links during the life of the Franchise, subject to the terms of
this Section 7.1.1. These additional links will permit PEG signals to be sent to the CIVIC to permit
control of the PEG transmission by City or its Designated Access Provider prior to distribution as
described inthis Franchise.
2. These links and any necessary signaltraneportond processingequipnvent
(not production equipment) necessary bopermit PEG signals0mbeh8noOorted from their point nf
origination to cable subscribers Gh@|| be provided by the Franchisee throughout the term of the
franchise at nocost tO the City or its Designated Access Provider. The parties agree that the
provision of these links shall not be deemed Franchise Fees. In the event that the City does not
use an activated link described in this Section 7. 1.1 for transmission of PEG signals to Franchisee
for a period of one (1) year, Franchisee may after providing written notification to the City
decommission such link. A decommissioned PEG Link shall be reactivated by the Franchise upon
ninety (90) days written notice by the City. For purposes of clarity, the addresses of the CIVIC, the
Skills Center and City Hall subject to the requirements of this Section 7.1.1 are set forth in
Appendix A to this Franchise.
7.2. Interconnection,
A. Interconnection of Franchisee's System. On the effective date of this
Agreement, the Cable System operated by the Franchisee serving the City of Port Angeles
receives a PEG feed from the City's designated Access Provider at a hub facility and sends the
PEG feed to Port Angeles and other areas served by Franchisee or one of Franchisee's affiliates
in Sequim, and unincorporated Clallam County. The Franchisee agrees that it shall at minimum
maintain the level of interconnectivity described herein throughout the life of this Franchise. The
interconnection shall be capable of receiving and delivering PEG access programming to the
interconnected communities. There shall be no charge for the interconnection for PEG access
programming.
B. Cooperation. The City understands that interconnection requires cooperation
from other Cable System Operators. The City shall make every reasonable effort to assist
Franchisee in achieving the cooperation necessary to realize interconnection.
C. Franchisee Not a Common Carrier. Nothing in this Agreement shall be deemed
to require the Franchisee to assume the status of a common carrier as defined under applicable
law.
7.3 Reserved
7.4 Cable System Upgrade.
Franchisee shall comply with City permitting processes and regulations during any
future construction, rebuild, or upgrade of any portion of the Cable System.
7.5 Performance Testing.
A. Franchisee shall perform the following tests on its Cable System:
1. All tests required by the FCC; and
2. All other tests reasonably necessary to determine compliance with
technical standards adopted by the FCC at any time during the term of
this Franchise.
B. Franchisee shall maintain records documenting the results of its Cable System
tests described above, performed by or for the Franchisee. Such test results shall be available
for inspection by the City upon request with reasonable prior notice.
C. Tests may be witnessed by representatives of the City, and Franchisee shall
provide the City reasonable notice of the time and place of each test. The City may conduct
independent tests of the system for which the Franchisee shall give its fullest cooperation.
n.
Franchisee shall be required to take prompt corrective measures to correct any system
deficiencies and toprevent their recurrence.
7.8 System Inspections. The City may inspect the Franchisee's Cable System and any
construction or installation work performed under this Franchise at City expense.
7.7 Other Construction Procedures. The Franchisee shall comply with federal, state, and
local |amm with regard to the construction and operation of the Cable System.
A. The Franchisee shall provide a semi-annual construction report to the City in a
form reasonably acceptable to the City when major construction projects — such as o Cable
System upgrades, rebuilds, plant extensions of one mile Or rnora' or interconnection projects --
are being undertaken. arebeingundedmken.
B. The Franchisee aho|| notify City residents in any construction area at least one
day in advance before first entering onto such resident's property to perform any work in
conjunction with Cable System construction, and eheU additionally notify affected residents in
advance Of any work which will involve excavation, replacement mfpoles, ortree trimming.
C. The Franchisee uhw|| ensure that any contractor orsubcontractor used by the
Franchisee for work and conmtruction, oponaUOn, or repair of Cable System equipment must be
properly licensed under laws of the State and all applicable local ordinances.
D. The Franchisee Ghm|| be responsible for ensuring that the work of contractors
and subcontractors is performed consistent with this Franchise Agreement and applicable laws,
shall be responsible for all acts or omissions of contractors or subcontractors, shall be responsible
for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement
a quality control program to ensure that the work is properly performed. This section is not meant
h}alter tort liability qfFranchisee tOthird parties.
E. The Franchisee shall make available as -built and design maps in an electronic
format cDnlnnOn|y used by the industry for the Qh/S review at the \OC8\ office of the Franchisee
after the completion of system construction in any geographic area.
F. Within thirty (30) days of completion of Cable System construction in any
geographic area, the Franchisee shall make available hJthe City upon reasonable request maps
showing the actual location ofadditions Orextensions t0its lines.
7.8 System Maintenance.
A. Interruptions to be Minimized. Whenever possible, the Franchisee shall
schedule planned maintenance so that activities likely to result in an interruption of service are
performed during periods Ofminimum subscriber use ofthe Cable System. The Franchisee shall
make best efforts tO minimize interruptions ofservice consistent with reasonable and customary
construction practices.
B. Maintenance Practices. |naddition toits other obligations, the Franchisee shall
use components of good and durable quality and follow high quality industry maintenance
standards.
7.9 System Performance. The Cable System shall meet orexceed the standards set forth
in47C.F.R.70subpart K("FCC Standards").msthose standards may heineffect atall times.
7.10 Future System Upgrades/Rebuilds. The Franchisee shall throughout the Franchise
term incorporate improvements in technology to reasonably meet the needs and interests of the
community in light of the costs thereof.
7.11 Service Availability.
A. The Franchisee shall construct, operate, maintain and upgrade its Cable System
so that it is able to provide service to all areas located in the Franchise Area described in Section
1.4 of this Franchise, subject to Section 7.11.B.1.
B. System Extension Requirements.
Franchise Area Boundaries. The Franchisee must extend service upon
request for no charge other than the then -prevailing normal installation
charge and/or the long drop charge where there is the equivalent of 20
homes per linear strand mile measured from the Franchisee's closest trunk
line or distribution cable location.
2. Cost Sharing. In the event that a new subscriber requesting service does
not meet the criteria for service described in Section 7.11.13.1. above, the
Franchisee will extend its Cable System at commercially reasonable rates
based upon the circumstances in place at the time.
3. Subscriber Drops. The Franchisee shall not assess any additional cost for
service drops of one hundred fifty (1150) feet or less unless the Franchisee
demonstrates to the City's satisfaction that extraordinary circumstances
justify a higher charge. Where a drop exceeds one hundred fifty (150) feet
in length, the Franchisee may charge the subscriber for the difference
between the Franchisee's actual costs associated with installing a one
hundred fifty (150) foot drop and the Franchisee's actual cost of installing
the longer drop,
4. Undergrounding of Drops. In any area where the Franchisee would be
entitled to install a drop above -ground, the Franchisee will provide the
subscriber the option to have the drop installed underground but may
charge the subscriber the difference between the actual cost of the above-
ground installation and the actual cost of the underground installation.
5. Time for Extension. The Franchisee shall extend service as described
herein to any Person who requests it:
a. If the person requesting service is located in the Franchise area and
service can be provided by activating or installing a drop to that
location, service shall be provided within seven (7) days of the
request;
If the person requests service in an area which does not meet the
criteria described in 7.11.8.1, the Franchisee shall extend service
based upon mutually agreed upon terms and schedule between the
person requesting service and the Franchisee.
M]
7.12 Public, Educational, and Government Use
A. Designated Access Provider. The City may designate a nonprofit organization
incorporated in the State of Washington as a PEG access provider ("Designated Access
Provider') to control and manage the use of any or all of the access channels and/or resources
provided by the Franchisee under this Agreement.
B. PEG Access Channel Capacity. On the Effective Date of this Franchise, the
Franchisee provides one (1) channel for PEG Access purposes. At any time after the third
anniversary of the Franchise, the Franchisee shall, within one hundred and twenty (120) days
after a written request by the City or the Designated Access Provider(s) ("DAP"), provide and
activate a second access channel in the Franchise Area, for a total of two (2) activated access
channels.
1. The bandwidth that is provided by the Franchisee for PEG Access
purposes must be capable of transmitting signals in any commercially standard format and can
be used to transmit video and audio signals and other information (including, by way of example
and not limitation, any secondary audio, closed captioning, text, digital information, and high
definition signals). The PEG Access Channels must be viewable by all subscribers regardless of
the tier of service to which they subscribe without the need for any equipment other than the
equipment that a subscriber requires to receive their chosen service tier. The PEG Access
Channels shall have the same quality level and capacity, the same functionality, and in the same
format as provided to the Franchisee by the City or its DAP without material degradation.
2. The City or its DAP shall provide the PEG Access Channel(s) in an HD
format or any commercially available format. Franchisee shall transport and distribute the Access
Programming without degradation to Subscribers. Franchisee shall provide all necessary
equipment from: (1) the demarcation point at the origination location of the PEG Access
Channel(s); (2) at its Headend and/or hub sites; and (3) throughout its distribution system to
deliver the PEG Access Channel(s) to Subscribers.
3. Franchisee shall ensure that any PEG Access Channels can also be
viewed by Subscribers in the signal format provided by the City/DAP to the Franchisee, regardless
of the tier of service received by the Subscriber. PEG Access Channels shall have the same
quality and functionality as local broadcast channels provided to Subscribers in that same format.
C. Requirements Regarding Rules and Procedures for Use of PEG Access
Channels.
1. The Franchisee may not exercise any editorial control over the content of
programming on the designated PEG Access Channels (except for such programming the
Franchisee may produce and cablecast on the same basis as other PEG Access Channel users).
2. All programming transmitted over PEG Access Channels shall be
noncommercial in nature. Program materials to be distributed on PEG Access Channels shall
contain no advertising or commercial content for which consideration is received by the City or
the DAR The City and Franchisee agree that the City, the DAP, or an access program provider
may include acknowledgements for persons or entities which sponsor or underwrite a program in
a manner similar to the sponsorship information provided on the Public Broadcasting System.
D. PEG Channel Promotion. The Franchisee shall, throughout the term of this
Franchise, provide the following promotional services, free of any charges:
11
1. Program schedule information for each PEG access channel shall belisted
in all print and on -air pnognmnn guides provided by the Franchisee to aubacrbero, in the same
manner as the program schedule information for local broadcast cable channels are listed.
2. The parties acknowledge that the Franchisee contracts with ath
electronic programming guide vendor ("EPG provider") to provide on-screen and on-line program
listings. The Franchisee shall make available tothe City orits DAP the contact information for
that EPG provider. Franchisee oho|| inform the EPG provider that the City and its OAP one
authorized tuprovide programming information for the PEG access channels. The City orits DAP
eho|| be responsible for providing programming information to the EPG provider.
9. Once annually, the Franchisee shall allow the City orits DAP tosubmit o
bill atuffer, created at the OAP's expenae, to be inserted into all customer statements within the
Franchisee's Cable System in the City. Franchisee may establish reasonable size restrictions for
insertion in customer statements for use by the City or the [}/\P. In consideration of regulatory
notification requirements, the Franchisee has final approval on the dates for insertion.
E. PEG Channel Locations.
1. The PEG Acnaaa Channels shall be located on Franchisee's Local
Broadcast Service tier within reasonable proximity to each other and to local broadcast channels
in the Cable System's channel lineup and available at no charge to the City and its DAP.
2. PEG Channel Relocation. |nthe event Franchisee ierequired by Federal
law orregulation 0ochange the channel number ufthe PEG Access Channa|o..Franchisee shall
provide thirty (30) days advance notice to the City, the DAP, and its subscribers. Should
Franchisee decide to change the channel number for any other reesnn. Franchisee oho|| notify
the City, the DAP, and subscribers of such a discretionary change at least sixty (60) days prior to
the date ofthe proposed change. The Franchisee shall use notification techniques such aainserts
in subscriber billings, display advertisements in local newspapers and the customer messaging
function of its set-top units to provide customers the new channel assignments. |fthe notification
provided to the City and the OAP with regard to o discretionary move is consistent with the
deadline listed above, the Franchisee shall pay a fee of one thousand dollars ($1,000) to the entity
designated by the City to manage the PEG 000esa channel(s) being moved. If the Franchisee
fails to provide notice consistent with the discretionary move deadline listed above, the Franchisee
shall pay afee nftwo thousand dollars ($2.00O). The channel relocation fee paid tothe DAP shall
be used to replace print materials, channel |O'e, and other promotional materials (as well as other
video materials) containing the old channel number(s), and to otherwise promote the new location
ofthe channel. Franchisee will not move any mfthe PEG access channels more than once ino
three-year period, unless required tobylaw orregulation.
F. PEG Access Grants and Support for Access Channels
1. Commencing onthe effective date nfthis Franchise, the Franchisee shall
pay to the City one percent (1 %) of Franchisee's Gross Revenues derived from the operationof
the cable system toprovide cable services inthe City, tobeused bythe City for PEG access
purposes ("PEG Grant"). The City acknowledges that Franchisee may pass these fees through
to subscribers.
2. Following the afhaoUve data of this Fronchi*e. Franchisee ohoU nlohe
quarterly payments of the PEG Grant to the City, for the preceding quarter. Each quarterly
iv,
payment shall bedue and payable nolater than (45)days after the quarter ending date.
3. The Franchisee shall submit to the City olate fee onPEG Grant payments
that are submitted after the due date aodescribed above. Late fees for late payment ofthe PEG
Grant shall becomputed inthe same manner oslate fees for the late payment nfFranchise Fees
aadescribed inSection 10.3ofthis Agreement.
4. The PEG Grant shall be paid in addition to any other fees, charges, or
assessments required bvthe City. Franchisee agrees that the PEG Grant made pursuant ho this
Section 7.12.F. does not fall within the definition of Franchise Fees and shall not be offset against
Franchise Fees that the Franchisee owes under this Agreement.
G. Complimentary Cable Drops and Cable Service to Public Buildings.
1. The Franchisee shall provide one free cable drop, installation ofthat drop,
any necessary equipment /e.Q.. converter) and subscription to the Local Broadcast tier orits
equivalent to nine (S) public buildings designated by the City during the tmnn of this Franchise.
On the effective date of this Franchise, the Franchisee was fulfilling the above obligation by
providing a complimentary cable drop, subscription to its Local Broadcast tier of service and one
piece of customer premise equipment necessary to receive that service to the public agencies
listed in Appendix B. Nothing in this section shall require Franchisee to require any further service,
installation or equipment beyond that which was provided on the effective date.
2. The City may change the locations designated for complimentary cable
drops from those listed inAppendix Bbyproviding the Franchisee thirty /30\days written notice.
The new locations shall be located within the Franchise Area and require no more than standard
aerial cable drop tobaserved. Each location receiving such free drop and service may extend
that service to other locations within each building, without an additional service charge provided
that the Franchisee is not required to provide any additional equipment on e complimentary or
discounted basis [othese locations. Internal video distribution systems orother equipment used
by such public facilities must comply with the FCC's signal leakage and signal quality standards
and must not interfere with oradversely affect the Cable System.
3. The Franchisee shall provide one standard service dnop, standard
installation of that drVp, one piece of customer premises equipment capable of receiving H[]
signals and Franchisee's Local Broadcast Service Tier to the DAP, to enable them to monitor the
H[)transmission and reception ofPEG Access programming. The DAP may extend that service
to other locations within the Community Media Center without on additional service chorgo,
provided that the Franchisee is not required to provide any additional equipment on e
complimentary ordiscounted basis for these other locations. Internal video distribution systems
or other equipment used by such public facilities must comply with the FCC's signal leakage and
signal quality standards and must not interfere with or adversely affect the Cable System.
H.
1. |fFranchisee makes changes to its Cable System that necessitate
modifications to PEG Channel transmission facilities and equipment (including but not limited to
the upstream paths), Franchisee shall provide thirty (30) days advance notice of such changes to
the City and its Designated Access Providers. |naddition, Franchisee shall provide any additional
or modified facilities orequipment necessary to implement such modifications within sixty (60)
days of the date that the ovmtern changes are to be rnade, no that PEG signal transmission
13
facilities and equipment may be used and operated as intended and without interruption,
including, among other things, transmission of live and taped communications to subscribers.
2. The parties agree that all payments and costs of services provided by the
Franchisee to the City in support of PEG Access and other in-kind commitments shall not be
deemed "Franchise Fees" within the meaning of Section 622 of the Cable Act (47 U.S.C. 542).
Any PEG Access grants, support fees, or any in-kind services required by this Franchise are
intended to conform to provisions of Section 611 of the Cable Communications Policy Act of 1984
as amended, and are not to be or to constitute Franchise Fees.
7.13 No City Control. During the term of this Franchise, the City may not prohibit the
Franchisee from providing any program or class of programs, or otherwise censor
communications over the Cable System, except that nothing in this section shall be read to
authorize the Franchisee to engage in communications which are prohibited by law.
7.14 Emergency Alert System.
A. Franchisee shall, at all times during the term of the Franchise, provide and
maintain an Emergency Alert system ("EAS"), consistent with applicable Federal laws and
regulations including 47 C.F.R., Part 11, and any Washington State Emergency Alert Plan
requirements. The EAS shall provide for activation from the City's emergency operations center
or an alternate location specified by the City in writing and, upon written request of the City,
Franchisee will cooperate with the City to test the emergency override system for periods not to
exceed one minute in duration and not more than once every six months. If Franchisee elects to
participate in the voluntary Washington State EAS plan and local operational plan, Grantee shall
follow all required procedures. Notwithstanding the foregoing, FCC rules governing emergency
alert systems shall take precedence if in conflict with this Section. The EAS shall meet all
technical standards required by the FCC.
SECTION 8. CONSTRUCTION STANDARDS
8.1. This Franchise does not confer the right to place or maintain facilities in any particular
location, or in any particular manner, or at all times in the rights of way or any other property
occupied pursuant to this Franchise.
8.2. Without limiting the provisions of Sections 1-3:
A. Franchisee agrees that its occupation of the rights of way and such property is
subject to the supervision and control of the City.
B. Franchisee agrees to move, relocate or remove its facilities as directed by the
City upon reasonable notice. If the Franchisee fails to relocate or remove its facilities as directed
by the City within the time agreed, the City may perform the work required and Franchisee shall
pay the reasonable cost thereof. In the case of an emergency, the City may move, relocate or
remove Franchisee's facilities without notice to Franchisee. Except as specifically stated, any
action that the Franchisee may be required to take shall be at Franchisee's reasonable expense.
C. The construction, installation, operation, and maintenance of the Cable System
and all parts thereof shall be performed in an orderly and workmanlike manner. All such work
shall be performed in and comply with all federal, state, and local laws, regulations and safety
14
requirements, including but not limited to the regulations of the FCC' the Federal Aviation
Administration, and the National Baothce| Safety Code.
In the event Ofaconflict among codes and standards, the most stringent code or
standard shall apply (except insofar as those stundorde, if followed, vvmu|d result in a Cable
System that could not meet requirements of federo|, state, or |000| laws; and except for such
minor modifications as are typical in the industry). The City may adopt reasonable additional
standards after consultation with the Franchisee as required to ensure that work continues to be
performed in an Ond8dy and workmanlike rAaOOer. Orb} reflect changes in standards that may
occur during the Franchise term.
SECTION 9. RATE REGULATION
91 For rotes subject to rate regulation by the City, all charges to subscribers and users
shall beuniform throughout the franchise area with a written schedule of fees for all services
offered available upon request. Notwithstanding the foregoing, nothing in this Franchise shall be
construed to prohibit Franchisee from reducing or waiving rates and charges in conjunction with
marketing and promotional campaigns, retention efforts or discounted rates and charges for the
provision of services on a bulk subscription or similar basis. The Franchisee hereby agrees ho
provide each new subscriber with prices and options for programming services and conditions of
subscription toprogramming and other services.
9.2 The City may negm|aba Franchisee's rates and chapgem, except tothe extent that it is
prohibited from doing So by Federal or State law.
9.3 The Franchisee will notify subscribers and the City of any proposed increase at least
thirty (3O) days before said increase iatobecome effective. The notice will list the FCC community
identifier for the Cable System and the name, address, and phone number ofocontact person or
department @tthe City.
8.4 The City reserves the right to pRaSChb8 reasonable rates and order refunds, to the
extent permitted bvapplicable Federal orState law.
SECTION 10. FRANCHISE FEES
101 The Franchisee shall pay tnthe City anamount equal bzfive percent (5%) of the gross
revenues derived from the operation of its Cable System to provide cable services inthe City, or
the maximum amount permitted bvFederal law, iflarger.
10.2 If Cable Services subject to the Franchise Fee required under this Section 10 are
provided toSubscribers in conjunction with non -cable services, Grantee shall allocate revenue
for such bundled services between Cable Services and non -cable services in a fair and
reasonable manner and not in any manner whose purpose is to evade or substantially reduce
Grantee's Franchise Fee obligations bothe City. The combined revenues from such bundled
services shall be allocated consistent with PAMC 11.14.17O E 1 i.
10.3 Pursuant to PAyWC 11.14.170, Franchise Fee payments due the City under this
provision shall becomputed 8tthe end ofeach calendar quarter and shall bedue and payable no
later than forty-five (45) days after the end of the calendar quarter. Each payment shall be
15
accompanied by n statement of gross revenue for the quarter in a format to be agreed upon by
the City and the Franchisee.
10.4 Noacceptance ofany payment shall beconstrued aaanaccord that the amount paid
isinfact the correct amount, nor shall acceptance ofpayment be construed asorelease ofany
oYairn the City may have for further Vr additional ownnS payable under the Franchise by the
Franchisee.
10.5 The Franchisee shall submit to the City a late fee on Franchise Fee payments which
are received after the due dates aodescribed inSection 1D.3. For each day after the due date in
Section 10.3' the late fee shall be total franchise fee amount that is considered (atB, times an
interest r8te. times the number of days late up to the date of payment to the City. The interest
rote will be determined based upon the Wall Street Journal Prime Rate +396, divided by 305, to
beupdated for each 9D-dayperiod that the payment islate. The total payment t0the City will be
the underpaid franchise fees plus late fees computed in accordance with the section. Any unpaid
late franchise fees will continue to accrue interest in accordance with this section until such fees
plus the appropriate interest are paid to the City.
10.6 The Franchise Fee shall be paid in addition to fees, charges, or assessments required
bythe City. The parties agree that all payments and costs ofservices provided bvthe Franchisee
UJ the City in support of PEG Access and other in-kind ounnrnitnngntS shall not be deemed
"Franchise Fees" within the meaning nfSection 022ofthe Cable Act (47U.G.C. 542) and shall
not be offset against Franchise Fees that Franchisee owes under this Agreement.
10.7 The City may, no more frequently than once in any twelve (12) month period, conduct
a financial review to verify Franchise Fee payments made by the Franchisee. The City may use
unindependent auditor provided that the auditor i8subject toanondisclosure agreement that is
reasonably acceptable tothe Franchisee. The Franchisee will provide the records required by
the City inreasonably sufficient detail hoconduct the financial review tVthe City, electronically Vr
at a location directed by the City.
10.8 When the Franchise terminates for any reason (other than through the issuance of
renewal or superseding Franchise). the Franchisee shall file with the City within ninety /90\
calendar days of the date its operations in the City ce8Ge, a financial statement certified by @
certified public accountant Orthe Franchisee's chief financial officer, showing the gross revenues
received bythe Franchisee since the end ofthe previous fiscal year. Adjustments will bemade
at that time for Franchise Fees due to the date that the Franchisee's operations under the
terminated Franchise ceased.
SECTION 11. PROTECTION OF CITY AND ENFORCEMENT -- PERFORMANCE BOND
111 Pursuant tOthe PAK4C 1114.160 K 11. the Franchisee shall establish in the City's
favor performance bond in the amount uf$25O.00Oho secure the faithful performance of its
responsibilities under this Franchise and toinclude anamount necessary tocover the removal QJ
facilities and/or restoration ufCity facilities within the r|Qhtof-vvay. The performance bond shall
be issued by a corporate surety authorized to transact a surety business in Washington.
11.2 In the event the Franchisee f@US to comply with its obligations under this Fnanchise,
there shall be recoverable, jointly and severally from the principal and surety of the bond, any
damages orloss suffered bvthe City amaresult, including the full amount ofany compensation,
indemnification, or cost of removal or abandonment of any property of the Franchisee, or the cost
16
of completing or repairing the Cable System construction, upgrade, rebuild, or other work, plus a
reasonable allowance for aftornevs'feee^uptothe full amount ofthe bond.
11.3 The performance bond shall Contain the following endorsement or a similar
endorsement acceptable bJthe City:
"This bond may not be canceled, orallowed to |opae, until sixty (60) days after receipt
by the Citv, by certified rnai|, return receipt maquested, of written notice from the issuer of the
bond ofintent tocancel ornot horenevv."
11.4 The performance bond required bythis Section iSinaddition to, and not inlieu of, any
bonds required consistent with the Qty's normal practices for similar construction projects.
SECTION 12, PROTECTION OF CITY AND ENFORCEMENT -- APPROVAL OF SURETIES:
RELATION TO OTHER REMEDIES
121 Any insurance, bonds, security fund, and letter of credit required by this Franchise and
the PAK8C11.14.100 nhuU be imauad, respectively, by an admitted insurer in Washington,
acceptable to the City, and by a financial institution located in Washington acceptable to the City.
12.2 The provision and maintenance Of any insurance, bonds' security fund and letter Of
credit shall not in any respect limit the Franchisee's duty to indemnify the City nor shall recovery
of any amounts in any respect prevent the City from exercising any other right orremedy itmay
have under law orinequity.
SECTION 13. TERMINATION, REVOCATION, FORFEITURE
13]|naddition to all other rights, powers, and remedies reserved by the City, the City shall
have the additional, separate, and distinct rightsb]nevoke[heFnanChise.OrLoahodentheterm
of the Franchise to@period not shorter than thirty (30)months from the date of the City's action
shortening the tonn. or if the remaining term is thirty-six /36\ months or |aos, half the remaining
Franchise term, it
A. the Franchisee defrauds or attempts to defraud the City or subscribers, or
submits nnwteha||y misleading or incomplete information tothe City;
B. the Franchisee attempts to evade any material provision of the Enabling
Ordinance and the Port Angeles City Code or applicable |avv relating to the construction,
operation, Orrepair Ofits Cable System;
C. the Franchisee violates any material provision of the Franchise or any nna[ehB|
rule, order, or regulation enacted by the City Council in accordance with this Franchise;
D. the Franchisee abandons its Franchise (the Franchisee shall bedeemed tohave
abandoned its Franchise ifitwillfully refuses to operate the Cable System as required by its
Franchise, when there is no event beyond the Franchisee's control that prevents the operation of
the Cable System, and where operation would not endanger the health or safety of the public or
property).
17
13.2 In the event that the City believes that grounds exist for revocation, termination, or
forfeiture of the Franchise, the City shall notify the Franchisee in writing and follow the process
described in PAMC Chapter 11.14.120 Y -Z.
13.3 Upon revocation of the Franchise, or upon any other termination of the Franchise by
passage of time or otherwise, the City shall have the right to require the Franchisee to remove, at
the Franchisee's expense, its Cable System from streets, public property, and any private property
occupied pursuant to the revoked, canceled, or terminated Franchise. The City shall notify the
Franchisee in writing that the Cable System should be removed and identify any period during
which the Franchisee will be required to continue to operate the Cable System as provided in
Section 16. In removing its Cable System, the Franchisee shall refill and compact, at its expense,
any excavation that shall be made and shall leave all streets, public property, and private property
in as good a condition as that prevailing prior to the Franchisee's removal of the Cable System.
The provisions of Section 14 of this Franchise Agreement and applicable sections of the Port
Angeles City Code shall remain in full force and effect until the Cable System is removed.
13.4 Upon revocation or termination of the Franchise, the Franchisee may, if the City
declines to acquire ownership of the Cable System pursuant to the Enabling Ordinance, sell or
transfer the ownership of the Cable System, subject to the Port Angeles City Code, so long as
such transfer of ownership is completed within one hundred twenty (120) days of the date of
termination or revocation.
SECTION 14. REMEDIES -- LIQUIDATED DAMAGES
14.1 Because the Franchisee's failure to comply with certain provisions of this Franchise
will result in injury to the City, and because it will be difficult to estimate the extent of such injury,
the City and the Franchisee hereby agree to the following liquidated damages, which represent
both parties' best estimate of the damages resulting from the specified injury. Damage amounts
may be adjusted throughout term of Franchise by the City by resolution to take into account
increases in the consumer price index. Franchisee waives any claim or defense that the liquidated
damages provisions in this Agreement are unenforceable as a penalty or on the basis that they
do not fairly approximate the actual damages caused by the breach. Prior to assessing liquidated
damages, the City shall follow the "Notice and Duty to Cure" procedures contained in PAMC
Chapter 11.14.120 Y -Z. Franchisee agrees that the liquidated damage amounts represent the
damages to the City and are collectible by and payable to the City.
14.2 For failure to complete construction or extend service in accordance with the
Franchise: $1,500/day for each day the violation continues;
14.3 For failure to comply with material requirements for PEG Access use of the Cable
System: $750/day for each day the violation continues;
14.4 For repeated, willful, or continuing failure to submit reports, maintain records, provide
documents or information: $500/day for each day the violation continues;
14.5 For violation of customer service standards: $500 per violation per day;
14.6 For failure to comply with transfer provisions: $1,500/day from the date of any unlawful
transfer; and
18
14.7 For all other nmotaha| violations for which actual monetary damages are not readily
ascertainable: $500/day for each day the violation continues.
14.8 The total amount ofliquidated dannageedueinonyb^*dve(12)nlonthneriodehoUnVt
exceed $25,000.
SECTION 15. REMEDIES -- CUMULATIVE
151 If the City elects topursue liquidated damaOesunderSection14eboveforap8rticular
event, the liquidated damages shall be the sole and exclusive remedy of the City for that particular
evert. With respect to any event or cause for which the City does not pursue liquidated damages,
the City reserves all remedies it may have under this Franchise Agreement, the Enabling
Ordinance, |uvv. and in equity. All remedies provided under this Franchise Agreement or the
Enabling Ordinance shall becumulative, unless otherwise expressly stated. The exercise ofone
remedy shall not foreclose use Ofanother, nor shall itrelieve the Franchisee [fits obligations UJ
comply with the Franchise. Remedies may be used singly or in combination. PROVIDED
H[]VVEVER, the parties do not intend that the City be entitled to multiple monetary recoveries for
a single damage or loss. Thenah)na, notwithstanding the number of nature of the remedies
asserted with respect to monetary damage, the City is entitled to be made whole only once.
SECTION 16. REMEDIES -- CONTINUITY OF SERVICE
181 Subscribers in the Franchise Area may receive all available services from the
Franchisee aslong untheir financial and other obligations tuMheFnanChisee8resatished.
18.2 In the event of the termination or transfer of the Franchise, the Franchisee shall ensure
that all subscribers receive conUDuous, uninterrupted service regardless of circumstances in
accordance with this Section 16. At the City's request. the Franchisee shall cooperate with the
City to operate its Cable System for a 12 -month temporary period /the "Transition Period")
following termination nrtransfer nfthe Franchise asnecessary tomaintain continuity Ofservice to
all subscribers and eh8\| cooperate inthe development 0fplans required bJensure on orderly
transition from one operator to another. During such Transition Period, the Cable System shall
be operated consistent with the terms and conditions of this Franchise. During the Transition
Period, the Franchisee shall be entitled to continue to charge and collect amounts from
subscribers for the services provided.
16.3 Except for outages caused by8Force Majeure event, ifthe Franchisee fails tqoperate
the Cable System for ninety-six (96) hours during any seven (7) day period without prior approval
of the City, or if the System is abandoned as defined in Section 13.1.D, the City may, at its option,
commence enforcement or termination proceedings pursuant to this Franchise.
16.4 Franchisee shall comply with applicable law regarding any removal of the Cable
System. Notwithstanding anything to the contrary set forth in this Franchise. Franchisee may,
with the consent of the City, abandon any underground Cable System property in place mo |nnQ
aaitdoes not materially interfere with the use of the public hghts-0f-vvoyinwhich such property
is located or with the use thereof by a public utility or other Cable Operator.
SECTION 17. BOOKS AND RECORDS -- INSPECTION
19
17.1 The City may request information in the control or possession of the Franchisee, or its
affiliates: (1) to enforce the City's rights or assess compliance with the Franchise and applicable
law, other than subject matter addressed by the City's audit rights under Section 10.7 above; (2)
in the exercise of any power the City may have under this Franchise or applicable law; or (3) as
may be necessary in connection with any proceeding the City may or must conduct under
applicable law with respect to the Franchisee's Cable System. Franchisee shall provide materials
in response to such requests that are reasonably necessary to determine the matter at issue.
Franchisee may provide these materials in electronic format.
17.2 Subject to PAMC Chapter 11.14.160.L., any applicable privacy provisions of the Cable
Act, and Washington Public Records Act RCW 42.56, the Franchisee shall provide books and
records for the purposes described above in Section 17.1 and the City shall keep such materials
confidential to the fullest extent permitted by applicable law. Material that the City requires the
Franchisee to produce under this section shall be produced upon reasonable notice, no later than
30 days after a written request for production or 45 days after such request if the request is made
during the two-week period following the end of a calendar quarter. Requests for extensions of
time to respond shall not be unreasonably denied. Franchisee shall provide all materials
requested by the City electronically or in a manner and location to be agreed upon by the parties.
17.3 The Franchisee may request that the City treat records containing trade secrets or
proprietary information as confidential under the Washington Public Records Act RCW 42.56.
The Public Records Act and other applicable Federal and State laws shall govern the City's
treatment of any such request.
SECTION 18. PERFORMANCE MONITORING
18.1 Triennial Review
A. During the years which commence on the third and/or sixth anniversaries of the
effective date of the Franchise, and every third year thereafter, the City may commence a review
of the Franchisee's performance under the Franchise. As part of this review, the City may
consider: (1) whether the Franchisee has complied with its obligations under the Franchise and
applicable law; (2) whether customer service standards, technical standards, or bond or security
fund requirements are adequate, inadequate, or excessive; and (3) other issues as may be raised
by the Franchisee, the City, or the public.
B. The City shall conduct at least one public hearing at a lawfully noticed City
Council meeting to provide the Franchisee and the public the opportunity to comment on the
Franchisee's performance and other issues considered as part of this review.
SECTION 19. MISCELLANEOUS
19.1 Time of Essence. In determining whether the Franchisee has substantially complied
with the Franchise, the City and the Franchisee agree that time is of essence.
19.2 Effect of Preemption: Federal and State Law. If the City's ability to enforce any
provisions of this Franchise is finally and conclusively preempted by Federal or State law, then
the provision shall be deemed preempted but only to the extent and for the period the preemption
is required by law. If, as a result of a subsequent change in law or the interpretation of that law,
no]
the provision of this Franchise would again be enfonceob|a, it shall be enforneaWe, and the
Franchisee will comply with all obligations thereunder after receipt of notice from the City.
19.3 Force Maieure. The Franchisee oho|| not be deemed in default ornon-compliance
with provisions of its Franchise vvhenm such non-compliance was due to couaaa beyond
Franchisee's control such as war, hots` civil disturbance, Ooodo, other natural catastrophes, or
similar events beyond the Franchisee's control, fire, vanda|iern, inability to obtain equipment,
materials or other supplies due to Sthhe' |VCkDud. or work stoppage or any |avv, order negu|ation,
direction, motion or request ofany civil or military governmental authority. Franchisee ahm|| notify
the City ofthe occurrence or existence of any Vfthese events and the cessation Ofsuch event.
The Franchisee agrees to take prompt and diligent steps to bring itself back into compliance and
to Cmrnp|y as soon as possible under the circumstances with its Franchise without unduly
endangering the health, eafetv, and inb*ghh/ of the Franchisee's employees or pnoperty. or the
health, safety, and integrity of the pub|ic, atnaetS, public property, or private property.
19.4 Settlement and Release. As of the Effective Date of this Franchise Aonaernen1, the
prior Franchise is superseded and is of nofurther force and efhect, and the City hereby waives
and forever irrevocably releases Franchisee from any claims the City had, has ormay have
against Franchisee under the prior Franchise.
19.5. Consideration for Release. The parties agree that the all payments and costs of
services provided by the Franchisee tnthe City in support of PEG Access and other in -hind
COnnrnitnnent8 set forth in this Franchise Agreement are consideration given to the City by
Franchisee in return for the City's release as set forth in Section 19.4 above, and therefore do not
constitute franchise fees within the meaning Vfthe Cable Act, 47 U.S.C. 542.
19.0 Written Notice. Notices shall begiven esfollows:
To the City:
City Manager
City Hall
321 E. 51h Street
Port Angeles, Washington 9O382
with copies to:
To Franchisee:
Legal Department
VVaveOivisionHoldings, LLC
401 Parkolaoe Cmntor, Suite 103
Kirkland, WA 98033
With copies to:
VVoveOivisk}mHoldings, LLC
c/o RCN Telecom Services, LLC
1D5West First Street
South Boston, MA 02127
Attn: Regulatory Department
Notice eh8U be deemed given three (3) business days after posting with pre -paid
postage, first class mail, or immediately upon hand -delivery to the person identified above, at the
address specified above.
21
19.7
A. Franchisee shall be responsible tmthe City for all dunnagao, ooats, kzeaee, or
expenses for the pepair, pep|acemment, or restoration of City's pnoperty, equipment, nnmheha|a,
structure and facilities if and b]the extent damaged, destroyed orfound hobedefective aooresult
of Franchisee's neQ|igenma, willful misconduct, or strict liability.
B. Franchisee, hereby releases, waives, covenants not tobring suit against the City,
its subcontractors, agents, representatives, asaiQns, officers, ernp|oyees, and elected officials on
any claim, demands, or causes of action, and judgements for: (1) damage to or loss of property
of any person, /induding, but not limited to Franchisee, its agents, officers, employees, directors
and Subcontractorm. City's agentS, offiC8no and employees, and third parties); and/or (2) death,
bodily injury, i||ness, disease, worker's compensation, loss of services, or |VSs Of income to any
person except to the extent such damage loss death or bodily injury is caused by the sn|a and
exclusive negligence orwrongdoing Vfthe City.
C. Franohisee, for itself and its mganta, employees, directors, Pffiuena, contractors
and GubcOntr3ctVrs, hereby agrees 03 defend, indemnify, and hold the Qb/' aQenLe,
n*presGnt8Uves, nmp|oyees, officers, elected offioia|s. assigns, contractors and subcontractors,
harmless from and against any and all claims, demands, suits, causes of action and judgements,
losses, damages, and costs, including without limitation, attorney's fees and the costs of litigation,
for: (1) damage to or loss ofproperty and/or (2)death, bodily injury, iUneea, disease, worker's
compensation injury, |VSs of services, or loss of income to any parson, to the extent the dainna
ghee out of or naoub from the negligent acts or onnisSions, willful nnisoVnduct, or strict liability
activity of the Franchisee, its agents, ernp|Oye8s, directors, officerG, contractors and
subomntrDctora, and the agents and employees of said contractors or subcontractors as the
proximate cause. The Franchisee further agrees to indemnify, defend, and hold harmless the
Citv, its officanG and employees from any and all claims, oDote. judgments, awards orliability to
the Franchisee's own officers and employees, including those claims to which the Franchisee
might otherwise have immunity under title 51 FlCVV.
D. In the event that any claim orloss iefound bv8court ofcompetent jurisdiction or
administrative tribunal to be caused by the concurrent fault of both Franchisee and City, then each
party shall be responsible to the extent found by such court or administrative tribunal.
E. Franchisee shall use its commercially reasonable efforts tuensure that the terms
of each contract awarded to a contractor by the Franchisee for work in the public -rights of way or
on City property to be undertaken pursuant to this Franchise shall contain indemnity and
insurance provisions whereby the contractor shall indemnify City and provide insurance coverage
to the same extent asdescribed inPAyVIC11.14.
F. The City shall be responsible to the Franchisee for all damages, Coata, losses,
o[expenses for the repair, replacement, or restoration of Franchisee's property, equ|pnnerd,
rnateha|a, structured and t8oi|iUes, if and to the extent damagod, daetnux*d or found to be
defective as a result of the City's negligence, willful conduct, or strict liability.
G. The City, for itself and its agents, employees, ofhCRro' elected officials,
contractors and subcontractors hereby agree to defend, indemnify, and hold Franchisee, its
suuoenewns, aQante, n*preggntadivnn, aosiOns, officere, emp|oyeea, and contractors and
subcontractors harmless from and against any and all claims, demands, suits, causes Vfaction,
and judgements losses, damages and costs, including without limitation attorney's fees and costs
W11
of litigation for: M\damage tnorloss ofthe property ofany person; and/or /29death, bodily injury,
illness, diseaee, worker's compensations,. kJso of services, or loss cfincome tV any persons to
the extent the claims arise out oforresult from negligence acts oromissions, willful misconduct
or strict liability of the City, its agents, employees, directors, officers, contractors or subcontractors
and the agents and employees of said contractors and subcontractors as the proximate cause.
H. Either party shall give the other party prompt written notice of any claims or suits.
Either party shall, etits sole cost and expense, have the right toinvestigate and defend same to
the extent ofits own interest.
18.8 Benefit to City. This Franchise shall besubject bJthe provisions ofthe Port Angeles
City Code. In the event Of@ conflict between this Franchise and the City Code, the provisions
which afford the greatest benefit tothe City shall apply.
19.9 Third Party Right of Action. This Franchise does not confer any contractual rights of
action on any persons or entity other than City and Franchisee. No third podY has standing to
enforce orsue under this Franchise.
19.10 Washington Law Applies. Except aetomatters that are governed solely byFederal
law, this Franchise will be governed by and construed in accordance with the laws of the State of
Washington.
23
BY: ""15?
Nathan West, City Manager
gag
City Clerk)
BY;
(City Attorney)
WAVE „C; III LLC
w
APPENDIX A
Location
Address
City Hall
321 E. Fifth Street, Port Angeles, WA 98362
Port Angeles High School
304 E. Park Ave, Port Angeles, WA 98362
Community Media Center
215 S. Lincoln Street, Port Angeles, WA 98362
W
APPENDIX B
Complimentary Cable Drops and Service
Location
Address
City Hall
321 E. Fifth Street, Port Angeles, WA 98362
Police Dispatch
321 E. Fifth Street, Port Angeles, WA 98362
911 Center
321 E. Fifth Street, Port Angeles, WA 98362
Vern Burton Center
308 E. Fourth Street, Port Angeles, WA 98362
William R. Fairchild Int'l Airport
1402 Fairchild Airport Rd., Port Angeles, WA 98362
Peninsula College
1502 E. Lauridsen Blvd., Port Angeles, WA 98362 —
Senior Center
328 E. Seventh Street, Port Angeles, WA 98362
Fire Station
102 E. Fifth Street, Port Angeles, WA 98362
Port Angeles High School
304 E. Park Avenue, Port Angeles, WA. 98362
Community Media Center
215 S. Lincoln Street, Port Angeles, WA 98362
M
APPENDIX C
CUSTOMER SERVICE STANDARDS
The Franchisee shall comply with the following Customer Service and reporting requirements. These
requirements include, but are not limited to, the requirements set forth in FCC regulations, including 47
C.F.R. §76.309, 47 C.F.R. §76.1602, and other applicable federal and state laws. To the extent the
provisions of these Customer Service Standards differ from applicable FCC regulations or any
applicable law, the provision or provisions that impose the highest standard or greatest legal duties or
obligations upon the Franchisee shall take precedence, unless a different order of precedence is
expressly set herein.
DEFINITIONS
When used in these Customer Service Standards (the "Standards"), the following words, phrases, and
terms shall have the meanings given below:
"Cable Operator" shall have the meaning set forth in Section 602(5) of the federal Communications Act.,
47 U.S.C. 522(5).
"Cable Services" shall mean (a) the one-way transmission to Customers of video programming, or other
programming service, and (b) Customer interaction, if any, which is required for the selection and use
of such video programming or other programming service.
"Cable System" shall have the meaning set forth in Section 602(7) of the federal Communications Act,
47 U.S.C. § 522(7).
"City" means the City of Port Angeles, Washington.
"Complaint" shall mean any issue raised by a Customer that is a violation of the Customer Service
Standards notification of which has been made to the Cable Operator either through the Franchisee's
Customer Service Center (as described in Section 2.1 below), Franchisee's customer support call
center (as described in Section 3.2 below) or in writing sent to Franchisee's headquarters address.
"Customer" means any person who lawfully receives Cable Services or Other Services from the Cable
Operator.
"Customer Service Representative" ("CSR") means any person employed by the Franchisee to assist,
or provide service to Customers, whether by answering public telephone lines, writing service or
installation orders, answering Customers' questions, receiving and processing payments, or performing
other Customer service related tasks.
"Escalated Complaint" means a Complaint that is referred to a Cable Operator by the City.
"Franchisee" shall mean a Cable Operator who has been granted a franchise by the City of Port Angeles
to provide Cable Services.
"Other Service" means any wire or radio communications service, including, but not limited to, any
interactive television or Internet Service, provided through the use of any of the facilities of a Franchisee
that are used in the provision of a Cable Service.
"Normal Business Hours" means the hours of8:UO a.m. to 2L00 p.m. on Monday through Friday, and
9:00 a.m. to 5:00 p.m. on Saturday, excluding legal holidays.
^Nnnnm| Operating Conditions" nlaame service conditions within the control of Franchisee. Those
conditions that are not within the control ufa Franchisee include, but are not limited to, natural disasters,
civil dieturbannes, power outagen, telephone nnbxoMh oubagee, and severe or unusual weather
conditions. Those conditions that are ordinarily within the control of Franchisee inn|ude, but one not
limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand
periods, and maintenance orupgrade nfthe Cable System.
Customer Service.
11. All officers, agents, and employees Ofthe Franchisee, its contractors and subcontractors
who are in contact with Customers by telephone, in writing, or in person shall:
1.11 be courteous, knowledgeable and helpful; provide complete and accurate
information; and deliver effective, timely and satisfactory service inall contacts with
11.2. befluent in English and able tocommunicate clearly with Customers inEnglish; and
1.1.3. (for those who are inpersonal contact with Customers sdthe Customer's
have visible identification cards bearing their name and photograph. The Franchisee
shall account for all identification cards at all times. All CSRs shall identify themselves
orally to oeUern immediately following the greeting during each telephone contact
with the public. Every vehicle of the Franchisee used for providing services to
Customers shall be clearly visually identified to the public as working for the
Franchisee.
1.2. The Franchisee shall use its best efforts bomake all customer services available inSpanish
and other languages, in addition to English.
1.3. Trees and shrubs Orother landscaping on a Customers property that are damaged by
Franchisee, or any employee or agent during installation or construction for the Customer or
in the process of serving adjacent struotures, shall be restored to their prior condition or -
replaced. Trees and shrubs shall not be removed without the prior permission of the owner
pnep|aced.TneosondShruboohaUnoAbenernovedwithou[thapriorpenm|Geionof1heOvvner
ofthe property Dnwhich they are located.
1.4. The Franchisee shall, 8t its own cost and expense, and inumanner approved bythe property
owner and the City, neotmna any property to as good condition as before the work causing
such disturbance was initiated. The Franchisee shall repair, replace or compensate all
property owners for damages resulting from the Franchisee's insteUation, construction,
service Vrrepair activities for 3Customer.
1.5. The Franchisee shall dgon all areas surrounding any work site of debris caused by the
Franchisee's activities and ensure that all cable materials are disposed ofproperly.
1�6. Satisfaction Guaranteed. The Franchisee shall guarantee Customer satisfaction for every
Customer who requests new installation of Cable Services orOther Services or adds any
additional programming service tothe Customer's cable subscription byallowing for orisk-
free discontinuation of unsatisfactory services. Any Such Customer who adds Cable
Services orOther Services tohis orher account, and then requests discontinuation ofsuch
2
service within thirty (30) days due to dissatisfaction with the service, shall receive a credit to
his/her account in an amount equal to the pro rata charge for the remaining days of service
following the request to disconnect. If a Customer subscribes to a service under a promotion
that provides free service and chooses to disconnect during the promotion window, there
shall be no charge of any kind for the service or for disconnection of the service. Upon a
Customer's request, a Franchisee will promptly downgrade or disconnect the Customer from
the Franchisee's Cable system.
2. Office Availability.
2.1. Franchisee will maintain a Customer Service Center within or near the City limits. The
Customer Service Center will be open for walk-in traffic at least nine (9) hours per day
(except legal holidays) Monday through Friday, with some evening hours, and at least six
(6) hours on Saturday to allow Subscribers to pay bills, drop off equipment and to pick up
equipment.
2. 2. Each Franchisee will perform service calls, installations, and disconnects at least twelve (12)
hours per day Monday through Saturday, except legal holidays, provided that a Franchisee
will respond to outages twenty-four (24) hours a day, seven (7) days a week.
3. Telephones. All Call Response statistics shall be measured on the basis of call response statistics
for all call centers that serve Subscribers. If the call centers serve Subscribers located in other
communities, the Franchisee shall insure that call center representatives do not give priority or
preferential treatment to Subscribers located in other communities.
3.1. Definitions of Call Response terms.
3.1.1. "Answer Time" is the interval between when the Franchisee receives a call and when
an interactive voice response (IVR) or agent answers.
3.1.2. "Speed of Answer" is the amount of time between when the Customer is transferred
into the agent queue from either an IVR or an agent and the time an agent
answers.
3.1.3 "Calls Abandoned" is the percentage of calls in any agent queue that are abandoned,
disconnected or dropped for any reason.
3.2. Each Franchisee shall establish a publicly listed local toll-free telephone number. The phone
will be answered by a CSR twenty-four (24) hours per day, seven (7) days per week, so that
the Franchisee can respond to requests for service, complaints, inquiries and outages as
required herein.
3.3. Standards for Call Response.
3.3.1. Answer Time will not exceed thirty (30) seconds. Under Normal Operating
Conditions, the Franchisee shall meet this requirement at least ninety (80) percent
of the time measured on a quarterly basis.
3.3.2. The average Speed of Answer shall not exceed thirty (30) seconds. Under Normal
Operating Conditions, the Franchisee shall meet this requirement at least ninety (80)
percent of the time measured on a quarterly basis...
9
3.3.3. The percentage of Calls Abandoned shall not exceed three /3\percent under Normal
Operating Conditions.
34. Customer Service Reports.
3.4.1. Adthe request ofthe City, aFranchisee shall submit reports mnall Customer Service
Standards identified herein during each successive calendar quarter for the term of
the Franchise, except as otherwise might be provided herein. If Franchisee's
reports for two (2) quarters within a calendar year fail to demonstrate that the
Franchisee has complied with any Customer Service Standard, the Franchisee shall
thereafter submit monthly reports about performance of each such requirement until
it reports three (3) consecutive months with less than five (5) percent deviation from
any rnininnunn required Standand, unless the Franchisee demonstrates to the City's
satisfaction that the deviation occurred when it was not operating under NOnna|
Operating Conditions asdefined in 47{}.F.R. §76.309. and the Franchisee submits
a report to the City regarding the nature and duration of such non -Normal Operating
Conditions.
3.4.2. Timing. A Franchisee GheU submit quarterly reports if requested by the City within
thirty (30) days after the doga of the applicable reporting period. Each report shall
include data from the applicable reporting period.
3�.3. Compliance. Koquarterly report indicated that aFranchisee has failed to meet any
of the rninirnurn required standards, the Franchisee shall provide o written
explanation ofthe deviation within ten (1D)business days Ofthe report, including
steps being taken to cure the deviation, and the time expected to implement the cure.
A Franchisee must cure within thirty (30) days unless a longer period is agreed to in
writing by the City, which agreement shall not be unreasonably withheld.
4. Confirmation of Initial Service Request, Change in Service, or Disconnection. Promptly after a
Subscriber request for initial service, for service changes/upgrades/downgrades, and/or for
scheduling of service call, a Franchisee shall send electronically clear and concise written
confirmation to the Subscriber. This confirmation should include the services chosen by the
Subscriber including any up upfront costs, and a reasonable summary of the subscribers' regular
bill including taxes and fees.
5. Scheduling Work.
5]. All appointments for service, inSta|lation' or disconnection will be specified by date. Each
Franchisee will set a specific time mtwhich the work will bedone, oroffer a choice Oftime
blocks, which will not exceed four /4\hours inlength. AFranchisee may also, upon request,
schedule service installation oa||a outside nOona| business hours, for the express
convenience ofthe Customer.
5.2. If at anytime aninstaller Ortechnician &alate for anappointment and/orbelievesogChedukyd
appointment time will be missed, an attempt to contact the Customer will be made before
the end ofthe appointment window and the appointment rescheduled mtntime convenient
tnthe Customer.
5.3 Franchisee will offer boSubscribers who have experienced amissed appointments (where
the missed appointments was due to the fault of the Franchisee) a credit on the Subscriber's
bill inthe amount oftwenty dollars ($2O)orasubstantially similar benefit.
4
54. If the Franchisee makes reasonable and no less than three (3) attempts to confirm an
appointment during the scheduled appointment time or appointment window and is
unsuccessful in obtaining such confirmation, the Franchisee may assume that the Customer
has cancelled the appointment.
5.5 Under normal operating oVnditions, the service standards set forth in Sections 4.1-4.4will
bamet atleast ninety-five percent (8596)mfthe time, measured ona quarterly basis.
8. Service Standards.
6]. Under Normal Operating Conditions, requests for service, repair, and maintenance must be
acknowledged by a trained Customer Service Representative within twenty-four (24)hours,
orbefore the end ofthe next business day, whichever is earlier.
6.2. A Franchisee will respond to all other customer inquiries (including billing inquiries) within
twenty-four /24\hours nfthe inquiry OrComplaint.
6.3. Under NVnna| Operating Conditione, repairs and maintenance for outages or service
interruptions that are caused by Franchisee's equipment and that involve 8 loss reception
on all channels Vraffect five (5) or more customers must be completed within twenty-four
(24) hours after the outage or interruption becomes hnOvvn to FranchiSee, where the
Franchisee has adequate access bofacilities b3which itmust have access inorder toremedy
the problem.
6.4. Under Normal Operating Conditions, work to correct all other service problems must be
begun by the next business day after notification of the service pn]b|enn, and must be
completed within five (5) business days from the date of the initial notification of a problem.
6.5. When Normal Operating Conditions do not exist, a Franchisee will complete the work in the
shortest time possible.
6.6. A Franchisee will not cancel a service or installation appointment with a Customer after the
close of business on the business day preceding the scheduled appointment, whichever is
earlier.
6.7. Under Normal Operating Conditions, the service standards set forth inSections 5.1 -5.7will
bemet atleast ninety-five percent (H596)ofthe time, measured onaquarterly basis.
7. Disabled Services. With regard to Subscribers with verified disabilities that would prevent them
from picking up or delivery equipment, upon Subscriber request, each Franchisee will arrange for
pickup and/Dr replacement of converters or other Franchisee equipment at the Subscriber's
address or by a satisfactory equivalent (such as the provision of postage -prepaid mailer) at no
charge tothe Subscriber.
8. Notice to Subscribers regarding Service. A Franchisee will provide each Subscriber atthe time
service is installed, and annually thereafter in correspondence in a manner consistent with federal
|avv, clear and accurate written information with regard to:
8.1. Products and services offered bya Franchisee, including its channel lineup;
8.3. Process and procedures for e service oa||, filing a Complaint, or requesting an adjustment
(including when a Subscriber iaentitled k}refunds for outages and how toobtain thenn);
R
B3. The telephone number and address of the City office responsible for administering the Cable
Television Franchise;
8.4. Information regarding the current rates and charges forall services, products, and equipment
provided by the Franchisee, Channel positions, delinquent Subscriber disconnect and
reconnect procedures; information regarding the availability mfparental CordnJ| devices, the
conditions under which they will be provided, and the cost (if any) to be charged;
8.5. Descriptions of any diecounbe, men/iCes, or specialized equipment available to Subscribers
who are seniors or with disabilities; explaining hOvv to obtain them; and explaining how hm
use any accessibility features;
8.8. Installation and service maintenance pO|iciee, including the Customer responsibilities for
equipment;
8.7. Instruction Onthe use of cable 0service, remote control, and all other equipment provided
bvoFranchisee; and
8.8. Day8, hours of operation, and locations of the Customer Service Centers.
S. Changes in Noticed Information. Franchisee will provide to the City (or designee) at least thirty
(30) days in advance, and to all Subscribers at least thirty (30) days in advance, written notice of
any material changes in the information required to be provided under these Customer Service
Standards, except that, if federal law establishes a shorter notice period and preempts this
requirement, the federal requirement will apply.
10. Truth in Advertising. Each Franchisee will take appropriate steps to ensure that all written
Franchisee promotional materials, announcements, and advertising of residential Cable Services
to Subscribers and the general public, where price information is listed in any manner, clearly and
accurately discloses price terms and is in compliance with FCC Section 78.946. |nthe case of
telephone orders, e Franchisee will take appropriate steps hoensure that price terms are clearly
and accurately disclosed to potential Customers in advance of taking the order.
11. Interruptions of Service. AFranohisee shall inform Subscribers and the City three C8days prior
to any scheduled or planned imtennoUOn of service for planned maintenance or construction;
pnovded, however, that planned maintenance that does not require more than one (1) hour
interruption of service and/or that occurs between the hours of 12:00 a.m. and 8:00 a.m. will not
require such notice h3Subscribers. Notification tOCustomers ofmplanned outage may take the
form of a door hanger, a message or insert into the monthly bill, or a telephone call, supplemented
with on-screen messages announcing the planned outage. The Franchisee's Internet Service
Customers may receive notification by e-mail to the address specified by the Customer.
12. Billing Statement.
121. AFranchisee's monthly billing statement must beclear, concise, and understandable; mluSt
itemize each category 0fservice and equipment provided 0mthe Subscriber; and must state
clearly the charges therefor. The Franchisee shall provide adue date nneach bill that imcd
least 30 days from the beginning date of the applicable billing cycle. A monthly bill shall be
issued to all customers regardless ofbalance due. The customer shall retain the option of
whether to receive bills by mail or electronically.
A
12.2. The Franchisee shall respond to a customer's billing inquiry, general question, or comment
made by telephone or e-mail within 48 business hours after receipt.
12.3 If a Customer's service bill is not paid by the due date the Franchisee may apply an
administrative/late fee to the Customer's account. If the Customer's bill is not paid within
45 days of the beginning date of the applicable service period, the Franchisee may
perform a "soft" disconnect of the Customer's service. If the Customer's service bill is not
paid within 52 days of the beginning of the applicable service period, the Franchisee may
disconnect the Customers service, but only upon showing that it provided ten days' notice
to the Customer that such disconnection may result.
12.3. An administrative/late fee may not be imposed unless the outstanding balance exceeds
$10.00 and late fees may not exceed $10.00 per incident.
12.4. Subscribers will not be charged a late fee or otherwise penalized for any failure by a
Franchisee, including failure to timely or correctly bill the Subscriber, or failure to properly
credit the Subscriber for a payment timely made. Payments will be considered timely if
postmarked on the due date.
12.5. A Franchisee's bill must permit a Subscriber to remit payment by mail, electronically, or in
Person at the Franchisee's local office or at a listed drop-off location.
13. Credit for Service Impairment.
13.1. A Subscriber's account will be credited a prorated share of the monthly charge for the
service upon Subscriber request if a Subscriber is without service or if service is
substantially impaired for any reason for a period exceeding four (4) hours during any
twenty-four (24) hour period.
13.2. A Franchisee need not credit Subscriber where it establishes that a Subscriber will obtain
a refund for a loss of service or impairment caused by the Subscriber or by Subscriber -
owned equipment (not including, for purposes of this Section 13.2, in-home wiring installed
by Franchisee).
14. Billing Complaints. Franchisee shall provide an initial response or acknowledgement to all written
billing Complaints from Subscribers within 48 hours of receipt of the Complaint and a final written
response within thirty (15) days of receipt of the Complaint.
15. Billing Refunds. Refunds to Subscribers will be issued no later than:
15.1. The later of the Subscriber's next billing cycle following resolution of the refund request, or
thirty (30) days; or
15.2 The date of return of all Equipment to Franchisee, if Cable Service has been terminated.
16. Credits for Cable Service. Credits for Cable service will be issued no later than the Subscriber's
next billing cycle after the determination that the credit is warranted.
17. Disconnection/Downgrades.
17.1. A Subscriber may terminate service at anytime.
17.2. If a Customer requests cancellation of any or all services, billing for affected services shall
end Vnthe same day, oronthe future date for which the cancellation hsrequested. /Utar
the requested, cancellation date, the Customer shall not be responsible for cable services
delivered. The Franchisee must refund any credit balance owed the Customer, less any
owed or disputed amounts, within 30 days after the close of the Customer's billing cycle
following the return ofthe equipment and request for cancellation Noperiod ofnotice before
voluntary termination or downgrade of Cable service may be required of Subscribers by
any Franchisee. There will be no charge for disconnection and any downgrade charges
will conform to applicable law.
18. Security Deposit. Any security deposit and/or other funds due a Subscriber that disconnects or
downgrades service will be returned to the Subscriber within thirty (30)days oriOthe next billing
cycle, whichever is later, from the date disconnection Vrdowngrade was requested except in
cases where the Subscriber does not permit the Franchisee to recover its equipment, in which
case the amounts owed will be paid to Subscribers within thirty (30) days of the date the equipment
was rRc0venod. OriOthe next billing cyn|e, whichever is later.
19. Disconnection due to Nonpayment.
19.1. AFranchisee may not disconnect a Subscriber's Cable service for unless:
19.1.1. The Subscriber is delinquent in payment for Cable service;
19.1.2. The Subscriber fails to pay the amounts owed to avoid disconnection by the date of
disconnection; and
19.1.9 Franchisee has responded inwriting tOany pending written inquiry regarding the bill
at issue.
19.2. If the Subscriber pays all amounts due, including late charges, before the date scheduled
for disconnection, the Franchisee will not disconnect service. Service may only be
terminated on days in which the Customer can reach o representative of the Franchisee
either inperson orbytelephone.
19.3. The Franchisee will promptly reinstate service after disconnection aSnoted below)
upon payment bvthe Subscriber infull ofall proper fees Orcharges, including the payment
of the reconnection charge, if any.
20. Immediate Disconnection. AFranchisee may immediately disconnect a Subscriber for any lawful
reasons, including but not limited to:
201. The Subscriber hadamaging, destroying,orunlawfully tampering vvKh[xhaadornooedor
destroyed Vrunlawfully tampered with the Franchisee's Cable System;
20.2. The Subscriber ienot authorized b}receive aservice, and iefacilitating, aiding or abetting
the unauthorized receipt of sen/ice by others; or
20.3. Subscriber -installed or attached equipment is resulting in signal leakage that is in violation
of FCC rules.
20.4. Abusive behavior bvCustomer toward aFranchisee OraFranchisee's employee.
21. Deposits. A Franchisee may require a reasonable, non-discriminatory deposit on equipment
provided to Subscribers. Deposits will be placed in an interest-bearing account, and the
Franchisee will return the deposit, plus interest earned to the date the deposit is returned to the
Subscriber, less any amount the Franchisee can demonstrate should be deducted for damage to
such equipment.
22. Parental Control Option. Without limiting a Franchisee's obligations under Federal law, a
Franchisee must provide parental control devices at no charge to all Subscribers who request
them that enable the Subscriber to block the video and audio portion of any Channel or Channels
of programming.
23. Escalated Complaint. Any Customer who is dissatisfied with any proposed disposition of a
Complaint by a Franchisee or who has not received a decision within the required fifteen (15)
day period shall be entitled to have the Complaint reviewed by the City.
23.1. The Customer may initiate the review either by calling the City or by filing a written
Complaint, by letter or in electronic form, together with a Franchisee's written decision, if
any, with the City.
23.2. The Franchisee must attempt to contact the Subscriber who is the subject of the
Escalated Complaints within two business days of receiving the Escalated Complaint
notice from the City.
Summary of Ordinances Adopted by the Port Angeles City Council on January 15, 2019
ORDINANCE NO. 3617
AN ORDINANCE of the City of Port Angeles, Washington, authorizing and granting a television
cable franchise to WAVE Division III, LLC.
This ordinance is not subject to referendum and shall take effect 5 days after passage and
publication of summary.
The full texts of Ordinances are available at City Hall in the City Clerk's office, on the City's
website at www.cityotba.us, or will be mailed upon request. Office hours are Monday through
Friday 8:00 a.m. to 5:00 p.m.
Kari Martinez -Bailey
City Clerk
Published by summary: Sunday, January 20, 2019