HomeMy WebLinkAbout3116ORDINANCE NO. 3116
AN ORDINANCE of the City of Port Angeles granting to
Northland Cable Television, Inc., doing business as Northland
Cable Television, a non - exclusive franchise for the purpose of
constructing, maintaining, operating, repairing, replacing,
upgrading, rebuilding and using a cable television system in
public streets, alleys, and rights -of -way in the City of Port
Angeles to provide cable service, and repealing Ordinance 2470.
WHEREAS, pursuant to RCW 35A.48.040, the City is authorized to grant one or
more non - exclusive franchises to construct, maintain, repair, replace, upgrade, rebuild and
operate a cable television system within the City; and
WHEREAS, Northland Cable Television, Inc., doing business as Northland Cable
Television ( "Grantee "), has requested a franchise from the City to provide Cable Services
(defined below); and
WHEREAS, upon completion of an informal negotiation with the Grantee, the City
has determined that this Franchise reasonably meets the current and future cable related needs
and interests of the community, taking into consideration the cost of meeting such needs and
interests; and
WHEREAS, in the Acceptance attached hereto as Exhibit A, the Grantee has agreed
to be bound by the conditions hereinafter set forth during its provision of Cable Services
within the Franchise Area;
WHEREAS, in consideration of the terms of this Ordinance and the Acceptance
attached hereto as Exhibit A, the City herein agrees to grant to the Grantee a Franchise as set
forth in said Acceptance and in this Ordinance;
NOW THEREFORE, the City Council of the City of Port Angeles, does hereby
ordain as follows:
Section 1 - Purpose and Intent.
The following provisions are statements of the City's purpose and intent in granting
this Franchise and shall not supplant or modify any specific provisions of the Franchise. The
City's purpose and intent in granting this Franchise to the Grantee is to accomplish the
following:
1.1 Provide for the installation and operation of a Cable System with features
reasonably meeting the current and future cable related needs and interests of the community,
taking into consideration the cost of meeting such needs and interests.
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1.2 Encourage the widest feasible scope and diversity of programming and other
services to all City residents that is consistent with community needs and interests, taking into
consideration the cost of meeting such needs and interests.
1.3 Encourage a broad range of Cable Services to be offered to City residents on a
non - discriminatory basis.
1.4 Encourage prompt implementation of technical advances in cable television
technology.
1.5 Provide for ample and fairly allocated access to cable facilities for program
producers for government and educational programming.
1.6 Require that Grantee use its commercially reasonable efforts to provide high
quality Cable Service.
1.7 Ensure that the installation and maintenance of cable facilities meet or exceed
all applicable City regulations and do not materially interfere with the City's legitimate use of
its own facilities and property.
1.8 Encourage competition among Cable Operators and between Cable Operators
and other providers of communications services on a fair and equitable basis.
1.9 Protect the City's interests and the health, safety, and welfare of its citizenry.
1.10 Ensure the universal availability of Cable Services within the Franchise Area
on a non - discriminatory basis.
1.11 Provide for timely mandatory Government Access to all Cable Systems in
times of civil emergency.
Section 2 - Definitions.
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 in the singular
number include the plural number. The words "'shall" and "will" are mandatory and "may" is
permissive.
Words not defined herein shall be given the meaning set forth in the Cable Act
(defined below), and if not defined therein, the words shall be given their common and
ordinary meaning.
2.1 "Access" means the right of certain governmental and educational institutions
in the community, including the City and its designees, on a non - discriminatory basis, to use
the Cable System for specific educational or governmental, non - commercial purposes,
including the right to acquire Programming, to create Programming free from outside control
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including that of Grantee, to the extent required by the Cable Act, and to distribute and
receive Programming over the Cable System.
2.2 "Access Channel" means a dedicated channel for educational institution or
governmental non - commercial use, be it audio or video, as provided for in Section 611 of the
Cable Act and in Section 7 of this Ordinance.
2.3 "Activated" means equipped with the electronic, optical or other devices and
hardware required for transmitting and receiving communications signals over the network
transmission media between locations across the network.
2.4 "Additional Access Channels" means access channels as set forth in
Subsection 7.2.
2.5 "Affiliate" means any entity that owns or controls Grantee, or is owned or
controlled by Grantee, or otherwise has ownership or management control in common with
Grantee, including, without limitation, Grantee's parent corporation and any subsidiaries or
affiliates of such parent corporation.
2.6 "Backbone" means approximately fourteen miles of fiber optic infrastructure
as shown in Exhibit C.
2.7 "Basic Cable Service" or "Basic Service Tier" is the lowest priced tier of
Cable Service that includes the retransmission of local broadcast television signals.
2.8 "Broadband" means transmission of information over a medium requiring
transmission channels supporting upload throughput rates of at least 144 kbps and download
throughput rates of at least 256 kbps.
2.9 "Cable Act" means the Communications Act of 1934, as amended by the
Cable Communications Policy Act of 1984, 47 U.S.C.521 et seq., by the Cable Television
Consumer Protection and Competition Act of 1992, and by the Telecommunications Act of
1996, and as may be further amended from time to time.
2.10 "Cable Operator" means any Person or group of Persons, which (A) provides
Cable Services over a Cable System and owns a significant interest in such Cable System, or
(B) otherwise controls or, through any arrangement, is responsible for the management and
operation of such a Cable System.
2.11 "Cable Modem Service" means bi- directional access to the Internet over the
Cable System and the related Cable System equipment used for that purpose, which may be
either high speed Cable System download and integrated telephone return or two -way Cable
System transmission.
2.12 "Cable Service" means (A) the one -way transmission to Subscribers of (i)
video programming, or (ii) other programming service, and (B) Subscriber interaction, if any,
which is required for the selection or use of such video programming or other programming
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service, and (C) as otherwise defined by the FCC from time to time, and (D) includes, to the
extent applicable, "cable television service" as defined in RCW 35.99.010.
2.13 "Cable System" means a facility, consisting of a set of closed transmission
paths and associated signal generation, reception, and control equipment, that is designed to
provide Cable Service which includes video programming and which is provided to multiple
Subscribers within the community, but such term does not include (A) a facility that serves
only to retransmit the television signals of one or more television broadcast stations; (B) a
facility that serves Subscribers without using any Public Rights -of -Way; (C) a facility of a
common carrier which is subject, in whole or in part, to the provisions of Title II of the Cable
Act, except that such facility shall be considered a Cable System to the extent such facility is
used in the transmission of video programming directly to Subscribers, unless the extent of
such use is solely to provide on- demand services; (D) an open video system that is certified
by the FCC; or (E) any facilities of any electric utility used solely for operating its electric
utility systems.
2.14 "Channel" means a portion of the electromagnetic frequency spectrum which
is used in a Cable System and which is capable of delivering a television signal whether in an
analog or digital format. This definition does not restrict the use of any Channel to the
transmission of analog television signals.
2.15 "City" means the City of Port Angeles, Washington, an optional municipal
code city operating under the provisions of Title 35A RCW.
2.16 "City Council" means the City Council of the City.
2.17 "City Property" means and includes all real property, utility poles, conduits,
bridges and similar facilities owned by the City and all property held in a proprietary capacity
by the City.
2.18 "City Requirements" means all laws, ordinances, resolutions, regulations,
rules, policies and directives of general application of the City, in effect at present or that may
be adopted in the future by the City Council.
2.19 "Converter" or receiver means an electronic device which converts cable
channel frequencies which are not normally receivable by some television sets to an
appropriate channel, and which permits a Subscriber to view signals included in the service
being delivered, according to a designated tuning or channel selector dial.
2.20 "Control" or "Controlling Interest" means actual working control in
whatever manner exercised.
2.21 "City Manager" means the City Manager or any successor, or his or her
designee.
2.22 "Days" means calendar days unless otherwise specified.
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2.23 "Demarcation Point" means the physical point at which the Cable System
enters the Subscriber's home or building, or a point within the building that is no further than
fifty (50) feet from the physical point of entry into the building or facility on the I -Net, or as
otherwise defined by the FCC, from time to time.
2.24 "Downstream Channel" means a Channel capable of carrying a transmission
from a Headend to other points on a Cable System, including Interconnection points.
2.25 "Educational Access" means non - commercial, educational use by public
schools and school districts and not - for - profit educational institutions chartered or licensed by
the State of Washington or an agency or division thereof.
2.26 "Educational Access Channel" means a dedicated Channel for Educational
Access.
2.27 "FCC" or "Federal Communications Commission" means the federal
administrative agency or lawful successor, authorized to regulate and oversee
telecommunications, cable operators and open video carriers on a national level.
2.28 "Fiber Optic" refers to a transmission medium of optical fiber that supports
delivery of Cable Services.
2.29 "Franchise" means this Ordinance, including the Acceptance attached hereto
as Exhibit A, which constitutes a binding agreement between the City and Grantee.
2.30 "Franchise Area" or "Service Area" means the present municipal boundaries
of the City and shall include any additions thereto by annexation or other legal means.
2.31 "Franchising Authority" means the City of Port Angeles, Washington, or the
lawful successor, transferee, or assignee thereof.
2.32 "Government Access" means non - commercial use by municipal, county and
state governments and agencies and divisions thereof.
2.33 "Governmental Access Channel" means a dedicated Channel for
Governmental Access.
2.34 "Grantee" means Northland Cable Television, Inc., doing business as
Northland Cable Television, or any successor or assignee as provided for herein.
2.35 "Gross Revenue" means, for purposes of Franchise fee calculations, revenue
received by Grantee from Subscribers for recurring Cable Service charges in connection with
the operation of Grantee's Cable System within the Franchise Area, including revenue
collected for payment of Franchise Fees. Gross revenues shall not include Cable Modem
Service- related collections.
In the event of bundling of Cable Services with other non -Cable Services offered by
the Grantee over its Cable System, the Gross Revenues attributable to Cable Services shall be
calculated as follows:
( CS Jx(bc)
cs + ncs
Where cs is the current unit charges or fees paid by Subscribers receiving Cable
Services only, ncs is the current unit charges or fees paid by Subscribers receiving non -Cable
Services only, and be is the current unit charges or fees paid by Subscribers receiving bundled
Cable Services with other non -Cable Services.
Gross Revenue does not include any revenue not actually received, even if billed (e.g.,
bad debt), and does not include taxes which are imposed by law directly on the Subscriber but
collected by the Grantee and passed on to other governmental entities, such as the local and
state sales tax.
2.36 "Headend" means a facility for signal reception and/or dissemination on the
Cable System, including all related equipment such as cable, antennas, wires, satellite dishes,
monitors, switchers, modulators, computers, software, and processors for television broadcast
signals.
2.37 "Institutional Network" or "I -Net" means a communications network and
backbone as provided for in Section 8.
2.38 "Interconnect," "Interconnected" or "Interconnection" means to provide,
having been provided with, or the provision of, respectively, an electronic or optical linkage
between the Grantee's Cable System and Cable Services or any part, designated Channel, or
signal pathway thereof, and any other designated Cable System and Cable Services or any
part, designated Channel or signal pathway thereof, with the result that Cable Services of high
technical quality may be transmitted between such Cable Systems.
2.39 "Liquidated Damages" means the requirements imposed on Grantee to pay
specified, pre - calculated sums set forth in Section 12 hereof, rather than actual costs, to the
City as a result of performance deficiencies identified herein.
2.40 "Normal Operating Conditions" means service conditions that are within
the commercially reasonable control of the Grantee. Service conditions which are ordinarily
within the commercially reasonable control of the Grantee include, but are not limited to,
special promotions, pay - per -view events, rate increase, regular peak or seasonal demand
periods, and maintenance or upgrade of the Cable System, except for unscheduled and/or
emergency equipment replacement and testing required by the FCC or this Franchise. Those
conditions which are not within the commercially reasonable control of the Grantee include,
but are not limited to, natural disasters, civil disturbances, power outages, telephone network
outages, programmer originated interruption, and severe weather.
2.41 "Penetration Level" means the result obtained by dividing the number of
Cable System Subscribers receiving Cable Services from Grantee within the Franchise Area
by the total number of potential Subscribers within the Franchise Area. Such number of
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potential subscribers shall be approximately equal to the number of residential electric
customers within the Franchise Area. In the event that Grantee believes there is a difference
between the total number of potential Subscribers and the number of residential electric
customers of greater than ten percent (10 %), the Grantee shall provide reasonable
documentation as to its calculation of potential Subscribers.
2.42 "Person" means a corporation, company, association, joint stock company or
association, firm, partnership, limited liability company, or individual and includes a lessor,
trustee, receiver, or other such an entity, but does not include the City.
2.43 "Programming" means the video and audio material or programs prepared for
or capable of transmission on a Cable System, or, as the context requires, the process of
causing such material to be created, received, transmitted or distributed on a Cable System.
This definition is not intended to, nor shall it, change or expand the scope of Cable Service.
2.44 "Public Way ", "Street ", or "Right -of -Way" means land acquired or
dedicated for roads, alleys, sidewalks, rights -of -way, public ways, public places and public
streets and easements, including those dedicated for compatible uses and for which, under
City ordinances and other applicable laws, the City has authority to grant Cable System
Franchises and master permits, licenses or leases for use thereof for telecommunications
facilities, or has regulatory authority thereover, and may be more specifically defined in the
master permit, license or lease granting any right to or use thereof. "Right -of -way" for the
purpose of this Chapter does not include buildings, parks, poles, conduits or similar facilities
or property leased to the City, including, by way of example and not limitation, structures in
the right -of -way such as utility poles and bridges. However, "Right -of -way" shall include any
such facilities or property within the direct or management control of the City where
Grantee's facilities are located on the Effective Date of this Ordinance.
2.45 "Residential Dwelling Unit" means each home, house, building, or other
structure that normally accommodates the living quarters of one (1) family, and each
apartment, condominium, or co- operative unit that normally accommodates the living quarters
of one (1) family in any multiple -unit building or complex of multiple -unit buildings;
provided, however, that if the Grantee has not been granted the authority by an owner or
association of owners to extend its facilities to individual apartments, condominiums, and
co- operative units within the interior of such multiple -unit buildings or complex of
multiple -unit buildings, then any such multiple -unit building or complex of multiple -unit
buildings shall be considered a single Residential Dwelling Unit.
2.46 "Service Interruption" or "Outage" is defined as being a Cable System
malfunction resulting in the loss of picture and sound on one or more Channels affecting more
than one Subscriber.
2.47 "Standard Drop or Drop" means the cable connection between the
Subscriber's premises and the Cable System up to a maximum length of one hundred fifty
(150) feet measured from six inches (6 ") outside the nearest exterior wall of the Subscriber's
premises to the nearest Cable System distribution tap.
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2.48 "Subscriber" means any Person who is lawfully receiving, for any purpose or
reason, any Cable Service whether or not a fee is paid, including each such Person in a
multiple unit building, except for purposes of reporting or cost allocation, where equivalent
Subscriber basis may be used.
2.49 "Tier" means a level of Cable Services offered by Grantee to Subscribers as a
package, for a specified fee.
2.50 "Upgrade" means an improvement in any aspect of the Cable System.
2.51 "Upstream" means a transmission to a Headend from any other point on the
Cable System, including Interconnection points.
2.52 "Upstream Channel" means a Channel capable of carrying a transmission to
a Headend from any other point on a Cable System including Interconnection points.
Section 3 — Grant and Acceptance of Franchise.
3.1 Grant Of Cable Franchise
3.1.1 There is hereby granted, subject to Grantee's acceptance of the terms of
this Franchise as provided herein and the City's receipt of monetary compensation for a term
as described below, unless otherwise terminated as provided for herein, the non - exclusive
right and privilege to have, acquire, construct, expand, reconstruct, maintain, use, repair,
replace, upgrade, rebuild and operate, in, along, across, on, over, through, above and under the
Public Rights -of -Way of the City, a Cable System to provide Cable Service. In the event the
Grantee either seeks to provide or to allow others to use its Cable System to provide
non -Cable Services, Grantee agrees to obtain all lawfully required City, state and federal
permits, consents, franchises, and other required authorizations, except as allowed in
Subsection 5.3.4.
3.1.2 Nothing in this Franchise shall authorize Grantee to attach any part of
its Cable System to any City property or infrastructure or to use any City -owned conduits or
facilities until Grantee has all required agreements, permits, and licenses from the City,
supported by independent consideration, for such rights of attachment or use.
3.2 Acceptance of Franchise. Grantee has filed with the office of the City Clerk
its Acceptance of the Franchise, and all terms and conditions thereof, signed and
acknowledged by its proper officers. The written Acceptance is attached hereto as Exhibit A
and is accompanied by the Bond and Certificate of Insurance in accordance with Section 10.
Grantee has paid the City its actual, direct expenses incurred in this Franchise renewal
process, but not to exceed the aggregate amount of three thousand ($3,000) dollars.
Section 4 - General Terms.
4.1 Franchise Not Exclusive. This Franchise is not exclusive.
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4.2 Term
4.2.1 The term of this Franchise shall commence on the Effective Date of
this Ordinance and shall extend for a period of fifteen (15) years.
(1) The term shall be contingent upon an upgrade of the Cable
System, which shall be completed within twenty four (24)
months of the Effective Date of the Franchise. The upgrade
shall meet all the following requirements:
(a) Activated capacity of 550 MHz providing expanded
Cable Services to 80% of Subscribers by the end of year
2002 and reaching all Subscribers within twenty -four
(24) months of the effective date of this Franchise in
accordance with Section 5.
(b) Broadband cable infrastructure as set forth in Section 5.
(c) Cable Modem Services as set forth in Subsection 5.3.
(2) The upgrade shall also meet the following requirement:
(3)
Provision of an Institutional Network including
backbone, reserve fibers, standard drop, and fiber to
requesting businesses, within eighteen (18) months after
the effective date of the City's approval of I -Net plans
and specifications.
In the event Grantee fails to meet the requirements listed in
Subsection 4.2.1 (1) (a -c) or Subsection 4.2.1 (2) above, the
term shall be reduced from fifteen (15) years to five (5) years, in
accordance with Subsection 12.3.
(4) In the event the City requires Grantee to complete an upgrade as
set forth in Subsection 5.6, the term shall be automatically
extended for five (5), years or such longer term as may be
requested by Grantee and approved by the City consistent with
Subsection 5.7.1, if Grantee is:
(a) In full compliance with the Technical Upgrade
Procedures as set forth in Subsection 5.7.
(b) In substantial compliance with all requirements set forth
herein, all as affirmatively determined by the City
Manager and evidenced in the City Manager's written
report to the City Council, which determination shall be
delivered within 60 days following Grantee's notice to
the City Manager that the Upgrade construction is
complete. If the City Manager fails to deliver the
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written report within said 60 days, then the Upgrade
construction shall be deemed to be in compliance with
the requests set forth herein.
4.3 Service Availability
4.3.1 Franchise Area. Throughout the term of this Franchise, the Grantee
covenants and agrees to construct, operate, maintain and upgrade the Cable System so as to
make all Cable Services distributed over the Cable System available to any Person within the
Franchise Area in accordance with the terms, schedule, sequence and procedures established
in this Franchise, except for any such service which is provided on a test basis and provided,
however, that a new Cable Service may be introduced on a phased basis in different areas of
the City over a period no longer than one year.
4.3.2 Annexation. Whenever any rights -of -way outside of the Franchise Area
are annexed into the City, all of the rights and privileges herein granted shall apply to said
rights -of -way upon the effective date of the annexation. Within thirty (30) days of such
incorporation or annexation, the Grantee shall revise its billing records accordingly in order to
comply with this franchise.
4.3.3 The Grantee shall ensure that access to any Cable Service is not denied
to any group of potential Subscribers because of the income of the residents of the area in
which such group resides or geographic location (subject to Subsection 4.4). It shall be the
right of all Subscribers to receive continuously all available Cable Services insofar as their
financial and other obligations to the Grantee are honored. The Grantee shall continuously
monitor the implementation of the commitments set forth in this Subsection.
4.4 Line Extension Policies
4.4.1 Grantee shall extend its Cable System and make Cable Service
available to every existing residential area within the Franchise Area, if requested, whenever
density of at least thirty (30) Residential Dwelling Units for overhead construction and
forty -five (45) Residential Dwelling Units for underground construction per cable mile (or
any proportionate amount thereof measured over a shorter or longer distance) is realized, as
measured from the existing facilities of Grantee's cable system in the Franchise Area;
provided such Residential Dwelling Units are situated along Rights -of -Way to which Grantee
has reasonable access.
4.4.2 For purposes of this Subsection, density per cable mile shall be
computed by dividing the number of Residential Dwelling Units in the area by the length, in
miles or fractions thereof, of the total amount of aerial or underground cable necessary to
make service available to the Residential Dwelling Units in such area in accordance with
Grantee's system design parameters. The cable length shall be measured from the nearest
point of access to the then - existing system, provided that extension is technically feasible
from that point of access. The total cable length shall exclude the drop cable necessary to
serve individual subscriber premises.
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4.4.3 Grantee shall extend its cable system necessary for the provision of
cable service and make cable service available to any business in the Franchise Area when the
business subscriber agrees to pre -pay for the labor costs to be incurred and materials to be
used in making the extension, beyond the cost of a standard drop.
4.5 Rate Regulation
4.5.1 Rates and Charges. The City hereby waives its right to regulate rates
for the provision of Basic Cable Service tier and equipment as expressly permitted by
applicable law for a period not to exceed five (5) years from the Effective Date of this
Ordinance.
4.5.2 No earlier than five (5) years from the Effective Date of this Ordinance,
the City Manager may notify the Grantee of the date that the City will regulate basic service
tier rates as provided by federal law. After the date that the City will regulate basic service tier
rates, those fees and charges subject to regulation by the City shall not be increased without
prior approval of the City, except as allowed by law.
4.5.3 Reasonable Discounts Offered. Grantee shall offer reasonable
discounts as follows:
(1) Grantee shall offer a discount to eligible Subscribers in
accordance with the criteria set forth in Chapter 13.20 PAMC
for the current and preceding calendar year.
(2) Subscribers meeting eligibility criteria and subscribing to a
higher tier of service shall not be eligible for a discount.
(3) Such discounts will consist of at least a fifteen percent (15 %)
reduction in the normal charge for basic residential services as
well as a fifty percent (50 %) reduction in normal residential
installation charges.
(4) The City or its designee shall be responsible for certifying and
notifying the Grantee that such applicants conform to the
specified eligibility criteria.
(5) The City may promulgate revised eligibility criteria, so long as
they are economically and technically feasible and the Grantee
is allowed a reasonable opportunity to comment on such
revisions prior to adoption.
4.6 Changed Conditions
4.6.1 It is the intent of both parties that each party shall enjoy all rights and
be subject to all obligations of this Franchise for the entire term of this Franchise and, to the
extent any provisions have continuing effect, after its expiration. However, both parties
recognize that the technology of cable television and related services is in a state of flux and
that regulatory conditions and franchise rights and powers may change significantly during
the term of this Franchise.
4.6.2 Should such changes occur, as determined by the City, the provisions
and procedures of Subsection 5.6 shall govern.
4.6.3 The parties agree that the perpetuation of the substantial equivalent of
the current statutory and regulatory structure governing cable television is not a condition of
this Franchise, or a fundamental assumption that either party is making in entering into it;
provided, however, nothing herein shall prevent either the City or Grantee from asserting that
any part or parts of this Franchise, except for the waivers set forth in Subsections 4.5.1 and
6.10, are preempted by state or federal law as a result of such changes.
Section 5 — General Cable System Requirements.
5.1 Principal Features. Broadband Platform. The Grantee's upgraded Cable
System shall be a broadband cable infrastructure.
5.2 Cable System Standards. The Grantee's Cable System shall comply with all
applicable federal and state laws, ordinances, and safety requirements, including but not
limited to the regulation of the Federal Communications Commission and Federal Aviation
Administration and the National Electric Code and National Electric Safety Code.
5.3 Cable Modem Service. Grantee agrees to make reasonable efforts to
negotiate an agreement with at least one Internet service provider, whether affiliated or
unaffiliated with Grantee, to use Grantee's broadband cable infrastructure to provide Cable
Modem Service within the Franchise Area in accordance with Subsection 4.2.1. The Grantee
agrees to negotiate with at least one, if applicable, Internet service provider within the
Grantee's service area first; provided that if such an arrangement has not been reached within
three months of the Effective Date of this Franchise, the Grantee may negotiate with other
Internet service providers. Said arrangements shall be subject to Grantee and Internet service
providers reaching an agreement based on commercially reasonable terms and conditions.
Grantee shall use commercially reasonable efforts to ensure that the broadband Internet access
services provided over Grantee's Cable System will conform substantially to the following
standards:
5.3.1 The Cable Modem Service platform will be kept current with standards
for interoperability with Internet protocol applications.
5.3.2 Subscribers to the Cable Modem Service, whether affiliated or
unaffiliated with Grantee, will be able to reach the Internet .
5.3.3 The City hereby recognizes that the Grantee and an Internet service
provider, whether affiliated or unaffiliated with Grantee, may provide Cable Modem Service,
without obtaining other City approvals.
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5.4 Cable Plant Topography
5.4.1 Network Operating Center. The Network Operating Center will
contain CATV Headend equipment used to originate and receive communication and
entertainment services, and transmit analog and digital signals over the network.
5.4.2 Fiber Optic Nodes. Fiber optic nodes will typically serve clusters of
less than 750 homes passed and will have standby battery electrical powering equipment. The
fiber backbone shall have a minimum of 750 MHz downstream capacity and capabilities to
activate return paths to the Network Operating Center. Furthermore, the fiber optic backbone
will have the ability to geographically segment the Cable System in the future so each node's
service area contains less than 250 homes passed.
5.4.3 Subscriber Drops. Cable Service signals will be converted from optical
to electrical RF at each fiber optic node and carried on coaxial cable and standard coaxial
drops to the Subscriber site. Upon the completion of the upgrade provided for in Subsection
4.2, Cable Service signals from each fiber optic node to the Subscriber site shall have a
minimum 550 MHz downstream bandwidth capacity and the ability to activate the upstream
bandwidth of 5 to 40 MHz.
5.5 Network Operating Center. Grantee's Network Operating Center will be
housed in a building with sufficient air conditioning and power conditioning equipment both
for short-term and long -term equipment installation. Standby powering will be installed that is
of sufficient size to be able to provide a continuous supply of electricity up to a forty -eight
(48) hour period in the event of loss of commercial power.
5.6 Upgrade to Keep Technology Current. At the City's request during the
Term of the Franchise, upon the showing required pursuant to Subsection 5.7, the Cable
System and any affected component thereof shall be upgraded to match current technology, to
the extent economically and technically feasible, as reasonably determined by the Grantee as
provided by Grantee or other Cable Service providers of comparable size to Grantee in cities
of comparable size and concurred with by the City. Upon acceptance by the City of such
upgrade, which acceptance will not be unreasonably withheld or delayed, the Term of this
Franchise shall be extended by a period of at least an additional five (5) years. The
appropriate costs of the upgrade shall be deemed external costs passed directly to Subscribers
for rate regulation purposes, at Grantee's option.
5.7 Technical Upgrade Procedure
5.7.1 No earlier than five (5) years from the Effective Date and no more than
once during the Term of this Franchise, the City may require a technical Upgrade of the Cable
System upon the following showing:
(1) The Upgrade is commercially practicable considering the
remaining term of the Franchise and considering Grantee's
ability to recoup the costs of such Upgrade plus a reasonable
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(2)
(3)
rate of return on such Upgrade investment, provided that the
City shall extend the term of this Franchise by a period of at
least five (5) years, to allow such return on investment; and
The requirement for such Upgrade is uniformly applied to all of
the City's Cable Service franchisees; and,
There is a demonstrable need and public interest to be served by
the Upgrade during such extended Term.
5.7.2 The City will conduct an inquiry to determine whether the required
showing can be made. Grantee shall reasonably cooperate with the City in the investigation
and provide . information, including, if reasonably available, estimated general cost figures,
technical specifications, and equipment specifications that may assist such an undertaking.
5.7.3 Grantee acknowledges and agrees that the City's inquiry may include
information not provided by Grantee and that the City may commission third parties, as
necessary, to ascertain facts in support of the required showing. City and Grantee shall share
the expense of the inquiry with the Grantee's total cost limited to $1,000.00. As part of the
inquiry, the City will survey the public on the currency of Grantee's Cable System, using a
scientific random survey method to be statistically valid, which survey is applicable to the
entire population of the City and meets technically unbiased tests (for example, does not
contain leading questions). The survey method and materials shall be mutually agreed upon.
5.7.4 In the event the City's inquiry indicates that a technical Upgrade may
be necessary under the required showing, the City and Grantee may meet to discuss whether
and to what extent an Upgrade of the Cable System is required. Within twelve (12) months of
the City Manager's written request, the Grantee shall in good faith prepare and submit its
business evaluation for review by the City. If the Grantee's business plan is commercially
practicable based on commonly accepted industry cost and return on investment criteria, the
Upgrade shall be required.
5.7.5 Upgrade Plans and Permits. Within one - hundred and eighty (180)
days of the City Manager's written notice upon City determination that an Upgrade is
required, Grantee shall submit its Upgrade plans and construction schedule for City approval.
Work shall begin within one - hundred and twenty (120) days of the City's approval of the
Grantee's submittal and the granting of all necessary permits and other applicable
authorizations. All construction shall be in accordance with the City's permitting process,
which shall not be unreasonably withheld, delayed or conditioned.
5.7.6 Extension of Construction Deadlines. Grantee shall obtain City
authorization for any extension to the prescribed time limit for construction of an Upgrade.
Such extension shall be authorized only when the City reasonably finds that such extension is
reasonably necessary and appropriate due to causes beyond the commercially reasonable
control of the Grantee. The City shall not unreasonably withhold, delay or condition its
authorization.
5.8 System Reliability and Performance. Grantee's Cable System will meet or
exceed FCC technical standards, as amended. Grantee's Cable System will be backed up with
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a minimum of two hours standby power at all Cable System nodes. Crews will be dispatched
in the event of a material loss of commercial power. In the event that the Cable System cables
or fiber optic lines are severed, Grantee will respond within an average of two hours and will
correct all such outages, within its commercially reasonable control, within 24 hours.
5.9 System Capacity and Features
5.9.1 Throughout the Term of this Franchise, subject to the completion of the
upgrade provided for in Subsection 4.2 and subject further to any Technical Upgrade
requirements, the Grantee's Cable System will have the following minimum capacity and
features:
Downstream
(1) Fiber optic backbone frequency spectrum: 54 -750 MHz.
(2) Fiber optic nodes to Subscribers frequency spectrum: 54 -550
MHz.
(3) Integrated downstream broadband infrastructure, delivering a
variety of broadband Cable Services, including but not limited
to analog and digital cable television and Cable Modem Service
as set forth in Subsection 5.3.
(4) Analog Channel Capacity: At least 78 channels.
Upstream
(1) Frequency spectrum: 5 -40 MHz which may be used to provide
an integrated upstream broadband infrastructure.
5.10 Subscriber Equipment Interface and Control. Grantee will comply with the
FCC's standard on equipment compatibility.
5.11 Emergency Alert System
5.11.1 Grantee shall install an emergency alert system that is capable of
providing audio and video messages on all programmed channels, in compliance with FCC
rules by October 1, 2002. The emergency alert system shall provide for activation from the
City's emergency operations center or an alternate location specified by the City, and upon
request by the City, Grantee shall 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 the Grantee elects to participate in the voluntary Washington State EAS plan and
local operational area plan, it shall follow all required procedures. Notwithstanding the
foregoing, FCC rules governing emergency alert systems shall take precedence if in conflict
with this Section.
5.11.2 The EAS shall meet all technical standards as required by the FCC
rules governing the new emergency alert system ( "EAS ").
5.11.3 The Grantee shall provide and maintain all equipment, systems,
software, services, security provisions, and procedures required for a fully operational
emergency cable override warning system in accordance with FCC rules.
5.12 FCC Testing. The Grantee shall maintain for inspection by the City, a copy of
the final report on each proof of performance test required by Part 76, Subpart K, of the rules
and regulations of the FCC. If the FCC shall cease to require such tests, or if the FCC's
regulations do not apply pursuant to 47 CFR § 77.601(c), the Grantee shall continue to
conduct such tests at least once every calendar year (at intervals not to exceed 14 months) and
shall maintain the resulting test data on file at its local office for at least five (5) years. The
City may require Grantee to provide within a reasonable period of time as the City may
designate, a full report on any deficiencies disclosed by the proof of performance test.
5.13 As Built Drawings. Within one hundred twenty (120) days of completion of
each segment of Grantee's facilities, upon the written request of the City Manager, Grantee
shall supply the City with a complete set of any current drawings for that segment. Grantee
may exclude proprietary information.
Section 6 — Programming and Services.
6.1 Grantee Compliance. Grantee shall meet or exceed the programming
requirements set forth in this Franchise.
6.2 Programming. Beginning no later than the date on which the entire Cable
System is to be activated, or, if activated in phases at Grantee's discretion, then when each
phase is activated, Grantee shall provide:
6.2.1 In addition to Programming provided on Educational Access and
Governmental Access Channels and local off -air broadcast channels, if any, Grantee shall use
commercially reasonable efforts to provide the following broad categories of Programming:
(1) Education
(2) News & information (local, regional and national)
(3) Sports (local, regional and national)
(4) Cultural and performing arts
(5) Government affairs
(6) Weather
(7) Audio programming (including a selection of local FM radio
stations)
(8) Business news
(9) General entertainment (including but not limited to movies)
(10) Children's programming
(11) Family programming
(12) Science /documentary
(13) Canadian programming
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6.2.2 The requirements for each category of Programming may be satisfied
by providing a separate Channel devoted substantially to the category or by Programming
from more than one Channel which in the aggregate totals the equivalent of a Channel
devoted substantially to the category.
6.3 Community Programming Needs
6.3.1 Grantee agrees to use its commercially reasonable efforts to air a
minimum of twenty (20) hours per month of locally produced Programming, if and to the
extent available, as part of the Programming required by Subsections 6.2.1. and 6.22. Local
programming and locally produced programming shall be considered Programming that is
produced within the Franchise Area and is not Governmental or Educational Access
programming.
6.3.2 The parties expressly agree that the Programming described in
Subsection 6.2.1 represents broad categories of video programming within the meaning of 47
U.S.C. 544(b) (2) (B).
6.4 Subscriber Programming Survey. Within ninety (90) days after the written
notice by the City Manager, not more frequently than once during the term of this Franchise,
the Grantee shall survey existing Subscribers on the broad categories of Programming for
determination of the Subscriber's Programming preference using a scientific random survey
method to be statistically valid, which is applicable to the entire current Subscriber base and
meets technically unbiased tests. Within ninety (90) days of the completion of the survey, the
results of the survey shall be provided to the City by the Grantee with proposed change(s), if
any, in the broad categories.
6.5 Community Needs Ascertainment Process
6.5.1 Not more frequently than once during the Term of this Franchise, the
City may also arrange and pay for a systematic ascertainment of the community's views
regarding the nature and adequacy of Grantee's performance of this Franchise and the needs
and interests of the community and Subscribers regarding this Franchise.
6.5.2 The ascertainment shall be conducted by an independent entity using
generally accepted market research techniques. A written summary of the findings made by
such an ascertainment shall be provided to Grantee. Such summary shall include a description
of the methodology used.
6.6 Deletions or Reduction of Programming Categories. Grantee shall not, to
the extent within its commercially reasonable control, delete or so limit as to effectively delete
any broad category of Programming for any group of Subscribers without providing at least
30 days' prior written notice to the City Manager; provided, however, such deletions as set
forth in this Subsection do not apply to changes pursuant to the FCC's broadcast carriage and
other rules.
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6.7 Parental Control Device. Upon request by any Subscriber, Grantee shall
make available at Grantee's actual cost a parental control or manual non - electronic lockout
device compatible with the Subscriber's equipment that will enable the Subscriber to block
access to Channels. Grantee shall inform its Subscribers of the availability of the lockout
device at the time of the original subscription, and if requested by the Subscriber, shall
provide the device at the time of the original installation.
6.8 Closed Caption Signals. Grantee shall retransmit all closed- captioned
broadcast signals, to the extent economically and technically feasible, which are made
available by programmers in conjunction with Programming in its line -up and which are
provided in order to facilitate viewing by handicapped persons. Grantee shall maintain the
necessary Headend equipment to make local off -air broadcast signals secondary audio
programming (SAP) features available to Subscribers. Grantee's obligations under this
subsection do not extend to providing customer premises equipment.
6.9 Cable Service to Community Facilities
6.9.1 Within ninety (90) days of a written request by the City Manager,
Grantee shall provide, to facilities included in Exhibit B and future facilities as identified by
the City Manager in writing, that are within one hundred fifty (150) feet of the nearest Cable
System distribution tap and are situated along Rights -of -Way to which Grantee has reasonable
access, one free aerial drop installation to deliver the Basic Service Tier. For any facilities
requiring underground drops, the City will pre -pay Grantee the actual cost for any such
underground drop installation. Each free Basic Service Tier outlet shall include the use of one
Converter, if necessary, and maintenance thereof by Grantee; provided, however, that each
facility receiving free cable television service shall post a written acknowledgement provided
by Grantee, stating "This service is provided courtesy of Northland Cable Television in
cooperation with the City of Port Angeles." Hardware and the installation thereof for any
internal video or broadband distribution system shall be provided by the facility served.
6.9.2 Within ninety (90) days of a written request by the City Manager,
Grantee will provide, to the extent economically and technically feasible, at no charge, an
appropriate interface to any internal video distribution system in the facilities described on
Exhibit B, so long as the facility insures that such internal system complies with the FCC's
signal leakage and signal quality standards and does not interfere with or adversely affect the
Grantee's Cable System, including the upstream capacity.
6.10 Subscriber Service Standards. The City hereby waives its right to
promulgate subscriber service standards for a period not to exceed five (5) years from the
Effective Date of this Agreement. In accordance with federal law, the City may promulgate
subscriber service standards so long as they are economically and technically feasible and the
Grantee is allowed a reasonable opportunity to comment on such standards prior to adoption.
Section 7 — Access Channels and Support.
7.1 Minimum Channel Capacity. In addition to the current one Access Channel
in the Franchise Area, currently activated as Channel 21, within ninety (90) days after the City
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Manager's written request, the Grantee shall activate a second and a third Access Channel in
the Franchise Area, for a total of three activated Access Channels during the Franchise term.
Of the three activated Access Channels, the City Manager shall dedicate at least one channel
for Governmental Access and one for Educational Access.
7.2 Access Channel Activation Utilization Criteria. Progressively, the second
and then the third Access Channels may be activated, upon written request by the City
Manager, when the average daily use of the existing Access Channels meet the following
criteria:
7.2.1 Access Channels are used for access programming purposes with
governmental and educational institutions of any type a minimum annual average of four (4)
hours per day that is distinct and non - repetitive, five (5) days per week, during any
consecutive ten (10) week period.
7.2.3 Except for character - generated announcements, the Programming of
the second or third Access Channels required shall be distinct and non - repetitive of the
previous Access Channel. Based upon these criteria, the Grantee shall, within ninety (90)
days following a written request by the City Manager, provide the second and/or third
designated Access Channel in the Franchise Area for this purpose. The City Manager shall
have the right to designate whether the second or third Channel will be utilized in whole or in
part for Educational Access or Governmental Access.
7.2.4 Minimum Usage. If the second or third Access Channel fails to meet
the continuing criteria of programmed usage for one hundred eighty (180) continuous days of
operation, such Channel shall revert to the Grantee for whatever use it deems appropriate,
until the City can demonstrate that the minimum utilization criteria set forth herein will be
achieved. However, the City may not request reactivation of such a Channel any sooner than
twelve (12) months after such reversion to Grantee.
7.2.5 Channel Placement. Access channels shall be included in the basic
Channel lineup. The current channel position of the one Access Channel in the Franchise Area
shall continue to be Channel 21. The Grantee shall obtain City approval of a change to the
current Access Channel position, including a plan to promote such change to Subscribers.
Such approval shall not be unreasonably withheld. The second and third Access Channels
shall be assigned a position within the basic Channel lineup as close to Channel 21 as possible
consistent with Grantee's contracts in place at such time and with applicable Federal law.
7.3 Access Policies. The City's public information committee shall recommend
policies and procedures to the City Council for the use of the second and third Access
Channels. At Grantee's option, Grantee may be a member of the City's Public Information
Committee.
7.4 Allocation of Access Channels.
7.4.1 The City Manager shall, in accordance with the provisions of this
Section determine the number of Access Channels to be used, subject to the provisions of
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Subsection 7.2 hereof, and allocate to various entities access to the Access Channels in the
Franchise Area to meet their requirements. Grantee shall determine Access Channel
placement. The request by the institution or organization must provide the City Manager with
sufficient plans for operating expenses, technical configuration, channel use, and public
purpose other than public access as contemplated by the Cable Act. In the event that making
available a Channel for Access Channel purposes requires displacement of other
Programming, the City shall give Grantee at least ninety (90) days written notice.
7.4.2 The City Manager may designate Access Channel use in the Franchise
Area for use by Educational Access or Governmental Access at the City's sole discretion,
including order and priority of programming. The City Manager may designate one Access
Channel dedicated exclusively for either Educational Access or Governmental Access uses or
may combine users on a shared basis on activated Access Channels in the Franchise Area.
7.5 Use of Access Channels.
7.5.1 The Access Channels in the Franchise Area shall be placed under the
authority of the City Manager for use related to governmental and educational purposes.
7.5.2 Access Channel programming may include financial sponsorships and
underwriting with acknowledgment of those sponsors or underwriters.
7.5.3 No restrictions shall be placed on the use of these Access Channels for
Governmental or Educational Access, except as provided in this Franchise or by law. Except
as provided by law, Grantee shall not exercise editorial control over programming of any
Access Channel. At no time shall the Grantee interrupt at its headend or hub site the signal
provided on any Access Channel without the express consent of the City, except for routine
maintenance and in circumstances beyond Grantee's commercially reasonable control.
7.6 Technical Quality. Grantee shall maintain all Upstream and Downstream
Access Channels and Interconnections of Access Channels at the level of technical quality
and reliability required by this Franchise and all other applicable laws, rules and regulations
or at the same level of quality as comparable Subscriber Channels, whichever is higher.
7.7 Designated Access Channel Managers. The City shall name Designated
Access Channel Managers for Educational Access and Governmental Access Programming.
The Designated Access Channel Managers shall have sole responsibility for operating and
managing their respective Access Channels.
7.8 Video Feeds. Grantee currently provides video feeds from City Hall and
Peninsula Community College. Within ninety (90) days of a written request by the City
Manager, Grantee shall install for the City's use and at no cost to the City, upstream video
feeds from one additional location designated by the City, provided such location is within
Franchise Area, located within 150 aerial feet of Grantee's upgraded Cable System, and is
situated along Rights -of -Way to which Grantee has reasonable access to either Grantee's
headend or other connection point capable of transmitting a video signal. For any such
location requiring underground installation, the City will pre -pay Grantee the actual cost for
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any such underground installation. Grantee shall also provide and install, for the City's use
and at no cost to the City, any equipment reasonably necessary for the City to transmit signals
via the Video Feeds, provided Grantee's total cost for such additional location shall not
exceed $1,000.
7.9 Rights to Access Channel Programming. Grantee shall have no rights to
Access Channel Programming by virtue of cablecasting or distributing such Programming
over its Cable System, except for Grantee's right to transmit such Programming to all the
Subscribers receiving a signal from the Cable System headend serving the Franchise Area.
7.10 Access Channel Resources. Grantee shall provide, at no charge to the City,
the following:
7.10.1 Staffing. The Grantee shall provide the technical advice necessary to
transmit access Programming on the Access Channels as directed by the City, as applicable,
on an as- needed basis. Such staff shall be available during normal business hours at no charge
to the access user and at other times for a reasonable and fair charge. For the purposes of this
Subsection, normal business hours shall be considered to be the hours of 8:00 a.m. to 5:00
p.m. Monday through Friday, excluding legal holidays.
7.10.2 With respect to access, at the written request of the City Manager, the
Grantee shall provide up to four (4) hours per week of use in the aggregate of the Grantee's
staffing and technical services ( "staff and equipment time ") for production of live and video
taped Educational Access and Governmental Access programs. The City will reimburse
Grantee's actual costs in excess of four (4) hours per week averaged annually.
7.10.3 The Grantee shall maintain the Interconnection and electronics on the
Cable System such that "live" or videotaped programming may be cablecast via Access
Channels from the Port Angeles City Council Chambers, Peninsula Community College, and
at one additional site selected by the City which is situated along Rights -of -Way to which
Grantee has reasonable access, taking due consideration that the cost for such electronics for
such additional site on the Cable System shall be comparable to the expenses for the
electronics on the Cable System allowing cable- casting from the Port Angeles City Council
Chambers. Grantee shall not be responsible for the maintenance of electronics on site, or any
other customer premises equipment, for such cablecast.
7.11 Grantee Contributions and Other Support for Access Channels
7.11.1 Within ninety (90) days of the City Manager's written request, no
earlier than two (2) years from the Effective Date of this Franchise, the Grantee shall, at its
option, provide the City either (i) funds for Access Channel production facilities and
equipment in the amount of $60,000.00, (ii) $12,000 per year for five (5) consecutive years,
paid pro rata to the City quarterly by the Grantee, or (iii) Access Channel equipment specified
in writing by the City up to the aggregate value of $60,000.00.
7.11.2 Within ninety (90) days of the Effective Date of this Franchise, the
Grantee shall provide Access Channel playback equipment to the City including three (3)
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Panasonic AG -7150 S- VHSNHS HI -FI Players, one (1) Leightronix Mini -T Event Controller
And Software, and five (5) Leightronix Pro -Bus Control Interfaces. The Access Channel
playback equipment shall be in proper operating condition and in accordance with
manufacturer's specifications.
7.11.3 The Grantee shall not be responsible for any of the costs to install
production facilities and equipment. All such facilities and equipment shall be for the benefit
of the City and its residents and shall be subject to the sole control and ownership of the City.
Within ninety (90) days of Grantee request, the City shall provide a detailed accounting of the
capital expenditures with such funds. At the termination of this Franchise, any unspent funds
will be returned to the Grantee.
7.11.4 The City shall continue to provide playback services for access users
within the Franchise Area for the Access Channel originating at City Hall and shall provide
and maintain all of its equipment, referenced in Subsection 7.11.1, currently located at 321
East Fifth Street, Port Angeles, Washington, for Access Channel purposes.
7.11.5 Within ninety (90) days of the City Manager's written request, no
earlier than two (2) years from the Effective Date of this Franchise, the Grantee shall provide
an annual operational contribution to support the adequate operation of the Government
Access Channel in the amount of $0.05 per subscriber per month.
7.12 Agreement as to Access Channel Contribution. The Grantee acknowledges
that all contributions, services, equipment, facilities, support, resources, and other activities to
be paid for or supplied by the Grantee pursuant to or in connection with its performance under
this Subsection are for the benefit of all Subscribers. For purposes of this Franchise, the
Grantee agrees that such contributions, services, equipment, facilities, support, resources, and
other things of value are not deemed to be (1) "payments -in- kind" or involuntary payments
chargeable against the compensation to be paid to the City by the Grantee pursuant to Section
10 hereof, or (2) part of the compensation to be paid to the City by the Grantee pursuant to
Section 10.
7.13 Access Channel Interconnection. For the purpose of making all Access
Channels available to all Subscribers, Access Channels on Grantee's Cable System shall be
capable of being interconnected with other Cable Systems throughout the City for cablecast of
the Access Channels. Actual interconnection shall be implemented upon request of the City
Manager provided that (1) interconnection is technically and economically feasible; (2)
Grantee and the other operator agree upon reasonable interconnection arrangements, including
an allocation of the costs of interconnection between Grantee and such other operator that is
reasonable in light of the relative benefits and burdens, including consideration of support
(capital and operational) provided for Access Channel purposes, including equipment in use
for Access Channels purposes at the time of interconnection.
Section 8 — Institutional Network.
8.1 Provision of Institutional Network
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8.1.1 As a condition of this Franchise, Grantee shall furnish to the City on a
cost plus a twenty percent (20 %) project management fee, a dark fiber Institutional Network
(I -Net) backbone including in addition 12 single mode reserve fibers capable of bi- directional
delivery of broadband communications services as identified in Exhibit "C ", as described
herein, within eighteen (18) months after City approval of the Grantee's I -Net plans and
specifications as provided for in Subsection 8.6.1. The I -Net fibers and reserve fibers shall be
located in the same sheath, wherever practicable. The cost of the fiber backbone construction
will be shared as set forth in Subsection 8.11.
8.1.2 Fiber Optic Infrastructure. The I -Net transmission infrastructure shall
physically consist of:
(1)
consist of:
(2)
(3)
(4)
A minimum of 12 single mode fibers in the backbone in
accordance with Exhibit C. On or before October 1, 2002, the
City Manager may notify the Grantee in writing that the
backbone shall include a minimum of 24 single -mode fibers.
Seven (7) fiber node locations along the I -Net backbone as
identified in Exhibits "B" and "C ".
The Grantee shall allow the extension of fiber drops from the I-
Net nodes identified in Exhibits "B" and "C ", to sites identified
in Exhibit B, that are situated along Rights -of -Way to which
Grantee has reasonable access and upon the request of the City
shall construct such additional drops, subject to the City's
payment to Grantee of any and all costs, expenses, and fees
associated with the requested drops including a twenty (20)
percent project management fee from the City.
Each I -Net site connection shall be terminated within fifty (50)
feet of entering the applicable building at a point of demarcation
in a Grantee standard termination panel, mounted on a City
furnished backboard, unless the City, at the City's cost,
provides another means of termination, in which case the City,
at the City's cost, shall provide all necessary termination
equipment. All terminations will use SC /APC fiber connectors.
8.1.3 The Fiber Optic reserve transmission infrastructure shall physically
A minimum of 12 single mode reserve fibers in the I -Net
backbone in accordance with Exhibits "B" and "C ".
The Grantee shall allow the extension of fiber drops, consisting
of a minimum of four (4) single mode fibers to each business,
from the I -Net fiber optic nodes to requesting businesses, and
shall construct such additional drops, subject to the requesting
business' pre - payment to Grantee of any and all costs, expenses,
and fees associated with the requested drops including a twenty
(20) percent project management fee from the requesting
business.
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(3)
Each business connection shall be terminated within fifty (50)
feet of entering the building at a point of demarcation in a
termination panel, mounted on a backboard furnished by the
business, unless the business, at the business's pre -paid cost and
expenses, provides another means of termination, in which case
the business, at the business's pre -paid cost and expenses, shall
provide all necessary termination equipment. All terminations
will use SC /APC fiber connectors.
8.2 I -Net Ownership. Grantee shall have full ownership of the I -Net and 12
single mode reserve fiber infrastructure and associated facilities up to and including the
Grantee provided termination panels or up to the termination splices in City provided
termination panels, within the fiber backbone at each node. Unless otherwise agreed by the
user making payment and Grantee, all I -Net and reserve fiber drops not within Grantee's
sheath or lashed to Grantee's sheath from the I -Net node to user sites shall be owned and
maintained by the user making payment for said drop.
8.3 City's Exclusive Rights.
8.3.1 The City shall have an exclusive right of use of the I -Net infrastructure
at no charge to the City and these free and exclusive rights shall be irrevocable by Grantee, or
successor companies, if any, during the term of this Franchise. Maintenance charges shall be
as provided in Subsection 8.7.
8.3.2 In the event of any transfer, assignment or sale of any ownership
interest whatsoever of the I -Net owned by the Grantee to any successor or other person, the
Grantee shall notify the City and the prospective successor or person of the irrevocable rights
of the City. In the event such notice is not given, the City may exercise all rights under law,
including enjoining the prospective transfer of ownership.
8.3.3 To the extent the I -Net infrastructure provided under this Franchise is
still in use and needed by the City, continued use of the I -Net infrastructure under the same
conditions set forth in this Franchise shall be a condition of any renewal.
8.4 Use of Institutional Network
8.4.1 The City may use the I -Net described in Subsection 8.1.2 for any
communications, in any form, for any non - commercial (a) governmental purpose (proprietary
or governmental); (b) educational purpose; (c) public purpose other than public access as
contemplated by the 1996 Telecommunications Act; or (d) for use of the Access Channels on
the subscriber Network. The I -Net may be linked to any other communications network used
by the City, or to any non - commercial I -Net user authorized by the City (or an entity under
the City's control) and approved by Grantee in writing, which approval shall not be
unreasonably withheld. Notwithstanding any other provision of the Franchise, Grantee agrees
that mutually authorized non - commercial I -Net users may provide Internet services or access
to Internet services to the public, schools and governmental entities over the I -Net described
in Subsection 8.12.
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8.4.2 In the Event of Bi- Directional Usage. Upon future activation of an
integrated upstream broadband infrastructure, Grantee shall allow the City bi- directional
access to the subscriber network, for such uses mutually agreed upon, which may include
meter reading, utility load monitoring and utility control. In the event there is a charge for
such bi- directional usage, the City will be charged the Grantee's most favorable rate, subject
to acceptance by the City.
8.5 Use of Reserve Fibers
8.5.1 Reserve fibers may be used for I -Net purposes and as allowed under
this subsection.
(1) Grantee or Grantee approved third parties may use 12 single
mode reserve fibers for commercial purposes other than Cable
Services. Grantee or each Grantee approved third party shall be
permitted to use no more than four (4) reserve fibers for
commercial purposes, unless mutually agreed upon by the City
and Grantee. Grantee shall be permitted to charge a fee and
impose contractual restrictions based on competitive market
conditions to approved third parties for use of 12 single mode
reserve fibers.
(2) Subject to all of the provisions of this Subsection 8.5.1, the
Grantee shall permit third parties to use 12 single mode reserve
fibers for private wide area networks (WAN). Grantee
approved third parties using reserve fibers for private wide area
networks shall be further limited as follows:
(a) No more than eight (8) of the 12 single mode reserve
fibers may be used for such private WAN network use.
(b) The Grantee shall permit use of reserve fibers by private
WAN users only until such time as bandwidth is
available from a commercial service provider using the
reserve fibers, and Grantee will condition any contract
for use of reserve fibers by private WAN users
accordingly.
(3) After the 12 single mode reserve fibers have been fully utilized,
the City may allow unused I -Net fibers to be used by Grantee or
Grantee approved third parties for commercial purposes other
than Cable Services, subject to the same provisions listed in
Subsections 8.5.1(1) and (2) and other such provisions mutually
acceptable to the City and Grantee. Any compensation charge
for such use shall be mutually agreed to by the Grantee and City
and shared equally.
(4) In the event that the Grantee or Grantee approved third parties
have not utilized the 12 single mode reserve fibers throughout
its fiber optic backbone for commercial or private WAN
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purposes other than Cable Services after two (2) years following
City acceptance of the I -Net backbone, or a reduced time period
as otherwise mutually agreed upon, upon City Council
determination available reserve fibers may be used by the City
or City and Grantee approved third parties for commercial
purposes other than Cable Services. Any compensation charge
for such use shall be mutually agreed to by the Grantee and City
and shared equally.
8.6 Institutional Network Plans, Specifications, Cost Proposal and
Construction
8.6.1 Backbone Route Plan and Cost Proposal. The Grantee's fiber optic
backbone route plan including node locations is identified in Exhibits `B" and "C ". The
cost to the City for the installation and construction of the I -Net fiber optic backbone,
including single mode fiber optic strands, shall be as provided in Subsection 8.11. The
Grantee shall be responsible for the installation and construction of the 12 single mode
reserve fibers within the I -Net fiber optic backbone, including 12 single mode fiber optic
strands. The Grantee shall submit plans and specifications within sixty (60) days of the
Effective Date of this Franchise for City approval. The I -Net backbone and reserve fibers,
including all splicing and testing, shall be fully complete, tested. and capable of operation
within 18 months after the effective date of the City's approval of the Grantee's I -Net plans
and specifications. The City shall promptly conduct a final inspection to verify completion.
Upon verification of completion by the City and delivery by Grantee to the City of as- builts
and a complete set of City approved fiber test results, the City will issue formal acceptance
of the I -Net backbone and reserve fibers, which acceptance shall not be unreasonably
withheld or delayed.
8.6.2 Site Drop Route Plans and Cost Proposal Procedure and Schedule.
(1) The City may provide the Grantee detailed site plans for the I-
Net sites for which it requests the Grantee to prepare a cost
proposal.
(2) Grantee may meet and confer with the City to clarify any of the
I -Net user site location plans.
(3) Grantee shall provide the City Manager the network outside
plant plans and cost proposal, from the I -Net node locations to
each I -Net site identified in the City's request, and a sufficiently
documented I -Net site drop cost proposal, within ninety (90)
days of the City's written request.
(4) The City may request the Grantee to provide a cost proposal to
build the City's I -Net fiber site drop infrastructure, in
accordance with the following:
(a) In preparing the plans, specifications and cost proposal,
Grantee and the City agree to coordinate closely to
ensure that the project requirements are met
expeditiously.
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(b) Grantee's plans and specifications shall be in sufficient
detail to permit identification, correlation, verification
and understanding of the components of Grantee's cost
proposal.
(c) The City Manager will review the plans, specifications
and cost proposal and shall provide written revisions or
approval of the proposal within sixty (60) days of receipt
of Grantee's submittal.
(d) In no event shall the City have any liability for any
expenses the Grantee incurs in preparation of such plans,
specifications or cost proposal until approval of such
plans, specifications or cost proposal is given by the
City Manager, which approval shall not be unreasonably
withheld or delayed.
(e) Grantee shall take steps to commence the I -Net fiber
drop construction within a mutually agreed upon time
frame from approval of the cost proposal by the City
Manager.
(f) Grantee shall provide the City, upon the City's prior
written notice, with monthly updates indicating work
completed, planned construction for next month, and
projected time -line for project completion.
(g) Taking into consideration any unforeseen circumstances
and to the extent technically feasible, the I -Net fiber
drops, including all splicing and testing, shall be fully
complete, and capable of operation within a mutually
agreed upon time frame after the construction start date.
The City shall promptly conduct a final inspection to
verify completion.
(h) Upon verification of completion by the City and
delivery by Grantee to the City of as- builts and a
complete set of City approved fiber test results, the City
will issue formal acceptance of the I -Net site drops.
8.6.3 Grantee shall warrant the I -Net backbone and fiber drop construction
for a period of one year following City acceptance and be responsible to promptly correct, at
its own expense, all defects and errors in materials and/or construction that may arise during
the warranty period.
8.6.4 To the extent technically and economically feasible, Grantee shall
include in its design the capability to provide for video feeds and /or data that need to be
routed to the Grantee Subscriber network Educational Access Channel and Government
Access Channel.
8.6.5 Interconnection and Extensions. The City reserves, at the City's sole
cost and expense, the right to make extensions or drops to sites identified in Exhibit "B" and
other sites that are within and outside of the City limits by itself or by the Grantee. All
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Interconnections shall be made by the Grantee or by other arrangements as mutually agreed
upon, provided that all such Interconnections to the Grantee's network are performed only by
the Grantee at agreed upon competitive commercial rates.
8.7 Demand Maintenance of the I -Net. Grantee shall provide demand
maintenance twenty -four hours a day, seven days a week and shall maintain the I -Net
infrastructure to the point of demarcation to operate at or above FCC standards at all times.
8.7.1 Normal Operating Conditions. Under normal operating conditions,
Grantee shall respond to all outage reports within two hours and make necessary repairs to the
extent technically feasible to restore service within four hours of notification Monday through
Sunday, 6 a.m. to 10 p.m.. Under normal operating conditions, Grantee shall respond to
degradation xeports within twenty -four hours.
8.7.2 Emergency Conditions. In emergency conditions, such as a natural
emergency resulting from a windstorm, Grantee will perform emergency repair work on the I-
Net fiber and field equipment in the course of conducting its own emergency repair work on
its fiber systems. All fibers at a given damage location shall be repaired concurrently without
preference to function.
8.8 Routine Maintenance of I -Net. Routine maintenance on the fiber used
exclusively by the City for I -Net use will be conducted on the same schedule as routine
maintenance on Grantee's fiber systems, or as mutually agreed upon. Any maintenance that
may disrupt the use of the I -Net shall be performed by Grantee with minimum seven (7) days
prior notice to the City.
8.9 Payment for Maintenance of I -Net. A mutually agreed upon fee shall be
charged by the Grantee for maintenance and repair of the I -Net. Such fee will be payable
quarterly, and at Grantee's option all or a portion thereof may be applied as a credit to the
franchise fee payable by Grantee.
8.10 Administration, Maintenance and Management of I -Net Sites and
Equipment. The City and any other I -Net user shall be responsible for the ongoing
administration, maintenance and management of its I -Net sites and equipment. All such
maintenance conducted by the City or any other I -Net user shall be performed in a
workmanlike manner to industry standards, and any City - provided equipment shall comply in
all respects with applicable governmental codes, laws, ordinances or regulations and the
National Electric Safety Code. The City and any I -Net user shall indemnify and hold
harmless Grantee from and against any and all claims for damages resulting from any acts or
omissions in connection with this Subsection 8.10.
8.11 I -Net Cost.
8.11.1 The cost to the City for the installation and construction of the I -Net
backbone shall be the incremental cost as defined in Subsection 8.12.1,
plus a twenty percent (20 %) project management fee and shall not
exceed $250,000.00, in accordance with Subsection 8.6.1. If the City
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Manager notifies the Grantee in writing on or before October 1, 2002
that the backbone shall include a minimum of 24 single mode fibers the
cost to the City for the installation and construction of the I -Net
backbone shall be the incremental cost as defined in Subsection 8.12.1,
plus a twenty percent (20 %) project management fee and shall not
exceed $350,000.00, which includes a thirteen percent (13 %)
contingency for expenses that are approved by the City Manager, which
approval shall not be unreasonably withheld, in accordance with
Subsection 8.6.1. The Grantee shall be responsible for the cost of 12
single mode reserve fibers in accordance with this Subsection. The
cost to the City for the installation and construction of the I -Net site
drops shall not exceed the Grantee's cost proposal approved in
accordance with Subsection 8.6.2. There shall be no charge by the
Grantee to the City or to any other authorized user for the use of the
I -Net, except maintenance charges as provided in Subsection 8.9.
8.11.2 The City's cost -share for the I -Net backbone and site drops shall be
verified by the City and payments shall be made by the City within
thirty (30) days of Grantee's request for payment as follows:
(1) Monthly payments less five percent (5 %) retainage required by
RCW 60.28.010 upon City acceptance and approval of
Grantee's request for payment containing all appropriate and
complete invoices.
(2) Final payment representing release of five percent (5 %)
retainage thirty (30) days following formal City acceptance,
which shall occur within 60 days of the City's receipt of
Grantee's request for payment containing all appropriate and
complete invoices.
8.12 Definition of Incremental, Direct and Indirect Costs
8.12.1 Incremental Costs. Incremental costs are that portion of the direct costs
solely attributable to the cost of materials, labor and final engineering
design of the I -Net for which the City is responsible for payment under
this Franchise. Incremental costs include only the direct costs that
would not have been incurred but for the providing of such I -Net and
do not include indirect costs.
8.12.2 Direct Costs. In respect to the obligation of the City to pay for the cost
of I -Net facilities to be provided by Grantee under this Franchise, the
term "direct costs" includes those costs specified in this Section 8 and
no indirect costs. "Direct costs" shall include costs such as:
(1) cost of design, materials and equipment necessary or desirable
for construction;
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(2) payments made by Grantee to subcontractors in accordance
with the requirements of the subcontracts;
(3) wages and salaries and associated taxes and benefits of
Grantee's employees performing work on the relevant portion
of City- required facilities;
(4) sales, excise, and other taxes paid by Grantee on materials,
equipment, supplies and services chargeable to the relevant
portion of the City- required facilities;
(5) any labor force travel expenses directly chargeable to the work
on the relevant portion of the City- required facilities;
(6) cost of necessary licenses and permit fees, including
rights -of -way construction permit fees and inspection fees, if
any, related to the relevant portion of the City- required
facilities; the City may review the applicability of such City
permit fees, such as construction permit fees, construction
impact fees, and construction inspection fees for the I -Net;
(7) actual rental costs for the use of any necessary temporary
facilities, or special machinery, equipment and hand tools used
in the work on the relevant portion of the City- required
facilities;
(8) that portion attributable to this Franchise of premiums for
insurance and bonds related to the design and construction of
the City- required facilities;
(9) any work destroyed or damaged prior to the City's acceptance,
not compensated by insurance or otherwise, sustained by
Grantee in connection with the work, provided the damage
resulted from causes other than the fault or negligence of
Grantee;
(10) costs of removal of debris on the relevant portion of the
City- required facilities;
(11) costs incurred on the relevant portion of the City- required
facilities, in taking action to prevent threatened damage, injury,
loss in case of an emergency affecting the safety of persons and
property;
(12) any additional pole attachment costs to Grantee; and
(13) other costs incurred on the relevant portion of the City- required
facilities in the performance of the work if, and to the extent,
approved in advance in writing by the City.
8 12.3 Indirect Costs. Indirect costs shall include:
(1) salaries and other compensation of Grantee's employees
stationed at Grantee's offices other than its office located within
the Franchise Area, except as may be expressly included in
Subsection 8.11.2 (3);
(2) overhead and general expenses, except as may be expressly
included in Subsection 8.12.2 (3);
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(3)
(4)
Grantee's cost of capital (debt and equity); and
costs due to the fault or negligence of Grantee, including, but
not limited to, costs for the correction of damage, defective or
nonconforming work, disposal and replacement of materials and
equipment incorrectly ordered or supplied, in making good
damage to property not forming a part of the work.
8.13 I -Net Costs not Franchise Fees. The parties agree that there shall be no
charge to the City for the I -Net provided by Grantee, other than the charges specified in this
Section 8. The parties agree that any capital costs to the Grantee associated with the I -Net
provided by Grantee are not Franchise fees and fall within one or more of the exceptions to 47
U.S.C. 542(g).
8.14 Pricing Guarantee. Notwithstanding any other provision of this Franchise, for
any work that the City is obligated to use the Grantee to perform under this Franchise, the
Grantee will make commercially reasonable efforts to ensure that the amount it charges will
be consistent with the price the City could obtain through a competitive pricing process.
Section 9 — Construction Procedures.
9.1 Cable System Construction Standards. All work involved in the
construction, operation, maintenance, repair, upgrade, and removal of the Cable System shall
be performed in a safe, thorough and reliable manner using materials of good and durable
quality, and so as to cause a minimum of interference with the Public Rights -of -Way. If, at
any time, it is reasonably determined by the City that any part of the Cable System, including,
without limitation, any means used to distribute signals over or within the Cable System, is
harmful to the health or safety of any person, then the Grantee shall, at its own cost and
expense, promptly correct all such conditions.
9.2 Construction Work Regulation by City. All construction work done by
Grantee in connection with the construction, expansion, reconstruction, maintenance or repair
of its facilities in the Public Rights -of -Way shall be subject to and governed by all lawful City
Requirements, provided that the terms of this Ordinance shall control over any City
requirements enacted or adopted after the Effective Date that are less favorable or more
burdensome than the terms of this Ordinance, except, if and to the extent any such City
requirements are universally applied to all utilities and applicable third parties.
9.3 Work by Others. The City reserves the right to lay and permit to be laid,
telecommunications, sewer, gas, water, electric and other pipe lines or cables and conduits,
and to do and permit to be done, any underground and overhead work, and any attachment,
restructuring or changes in aerial facilities that may be reasonably deemed necessary by the
City Manager in, across, along, over or under any public street, alley or right -of -way occupied
by Grantee, and to change any curb or sidewalk or the grade of any street. In permitting such
work to be done, the City shall not be liable to Grantee for any damages not directly caused
by the willful misconduct or negligence of the City; provided, however, nothing herein shall
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relieve any other person or entity, including any contractor, subcontractor, or agent from
liability for damage to Grantee's Cable System.
9.4 Construction by Abutting Owners. In the event that, during the term of this
Franchise, the City authorizes abutting landowners to occupy space under the surface of any
public street, alley, or Right -of -Way, such grant to an abutting landowner shall be subject to
the rights herein granted to Grantee. In the event that the City shall close or abandon any
public street, alley or Right -of -Way, which contains any portion of Grantee's Cable System,
any conveyance of land contained in such closed or abandoned public street, alley, or
right -of -way shall be subject to the rights herein granted.
9.5 Relocation or Removal of Facilities.
9.5.1 Grantee will obtain the City's approval before any relocation of
Grantee's facilities in the Public Rights -of -Way. Such approval shall not be unreasonably
withheld or delayed.
9.5.2 Within thirty (30) days following written notice from the City, the
Grantee shall, at its own reasonable expense, temporarily or permanently remove, relocate,
change or alter the position of any of its Cable System or other of its facilities that are within
the Public Rights -of -Ways whenever the City shall have reasonably determined that such
removal, relocation, change or alteration is necessary for:
(1) the construction, repair, maintenance or installation of any City
or other public improvement in or upon the Public
Rights -of -Way;
(2) the operations of the City or other governmental entity in or
upon the Public Rights -of -Way.
9.5.3 Grantee and the City shall cooperate to the extent possible to assure
continuity of service. If Grantee, after at least forty five (45) days' written notice by the City,
fails or refuses to act, the City may remove or abate the same, at the sole cost and expense of
Grantee, all without compensation or liability for damages to Grantee, except to the extent
caused by the willful misconduct or negligence of the City.
9.5.4 This Section is not intended to affect or alter any current contractual
agreements that the Grantee may have concerning relocation of facilities or recovery of costs
from private third parties for relocations requested by such private third parties.
9.6 Tree Trimming. Upon ten (10) days' written notice provided to the City,
except in an emergency of imminent danger to persons or property, the Grantee may trim
trees or other vegetation owned by the City or encroaching upon the Public Right -of -Way to
prevent their branches or leaves from touching or otherwise interfering with its wires. All
trimming or pruning by Grantee shall be at the sole cost of the Grantee. The Grantee may
contract for said trimming or pruning services with any person approved by the City, which
approval shall not be unreasonably withheld or delayed.
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Section 10 — Compensation and Financial Provisions.
10.1 General Compensation. Grantee agrees to pay to the City during each year of
this Franchise, a franchise fee consisting of five percent (5 %) of Grantee's Gross Revenue.
10.2 Calculation and Payment on a Quarterly Basis of Annual Franchise Fee
10.2.1 Grantee shall pay to the City for each quarter this Franchise remains in
effect an amount equal to five percent (5 %) of Gross Revenue, referred to as the "quarterly
payment." Grantee shall make this payment by check or by wire transfer to the account
designated by the City Manager by 5:00 P.M. on the forty -fifth (45) day following the close
of the calendar quarter for which the quarterly payment is calculated, provided that necessary
information in order to pay by wire transfer is or has been provided to Grantee at least ten
(10) days prior to the payment date. Any necessary prorations shall be made.
10.2.2 To the extent consistent with federal law, the compensation set forth in
this Section shall be exclusive of and in addition to all special assessments and taxes of
whatever nature, including, but not limited to, ad valorem taxes, utility billing charges, pole
attachment fees, inspection fees and assessments for recovery of costs incurred by the City.
The City hereby waives its right to impose a utility tax on Cable Services throughout the
Term of this Franchise.
Until Grantee installs metering or other mutually acceptable means of
determining electrical consumption, utility billing charges for Grantee power supplies shall be
based on the metered electrical consumption of Grantee's power supply, which is currently
located at 3rd and Penn Streets, multiplied times the number of Grantee's power supplies
served by the City's electric utility. The City shall only include one (1) basic customer
charge for Grantee power supplies, and all utility charges shall be billed at the current City's
electric rate, as amended. The City shall promptly adjust the Grantee's utility billing based on
any changes it makes to the number of power supplies served by the City's electric utility.
The City may adjust the utility billing, if any of the Grantee's power supply power ratings
exceed that of the power supply located at 3rd and Penn Streets.
10.2.3 In the event any quarterly payment is made after 5:00 P.M. on the date
due, Grantee shall pay a late payment charge of the greater of (A) $100 or (B) simple interest
at twelve percent (12 %) annual percentage rate of the total amount past due.
10.2.4 Payment of money under this Section shall not in any way limit or
impair any of the privileges or regulatory, condemnation, or police powers of the City,
whether under this Franchise or otherwise. No acceptance of any payment shall be construed,
as an accord that the amount paid is the correct amount, nor shall such acceptance be
construed as a release of any claim which the City may have for additional sums payable
under the provisions of this Section.
10.2.5 Grantee shall file annually with the City Manager, no later than one
hundred twenty (120) days after the end of the Grantee's fiscal year, a statement of Gross
Revenue within the Franchise Area for that year pursuant to this Franchise. This statement
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shall present a detailed classification of Gross Revenue for the year in a reasonable form
agreed to by the City and Grantee.
10.2.6 City's Franchise Renewal Costs. Upon acceptance of this Franchise,
the Grantee shall make payment in accordance with Subsection 3.2. of Grantee's existing
franchise with the City, which franchise was superceded by this Ordinance. Such payment
shall not be deductible from or considered to be in lieu of Franchise fees under this
Ordinance.
10.2.7 Any transaction or arrangement which has the intent of circumventing
payment of required Franchise fees and/or evasion of payment of Franchise fees by
non - collection, non - reporting of Gross Revenue, bartering, or any other means which evade
the actual collection of revenues by Grantee for services delivered over the Cable System is
prohibited.
10.3 Bond
10.3.1 Grantee shall obtain a performance bond in favor of the City with a
surety company reasonably approved by the City Attorney, in the principal amount of twenty -
five thousand dollars ($25,000) to secure Grantee's performance of its obligations and faithful
adherence to all requirements of this Franchise, including payment of any liquidated damages
required in Section 12. Grantee shall provide this performance bond at the time of filing the
acceptance of this Franchise, as required by Subsection 3.2 herein. The City in accordance
with Subsection 12.3 may draw upon this bond.
10.3.2 The bond shall contain the following endorsement: "It is hereby
understood and agreed that this bond may not be canceled by the surety nor any intention not
to renew be exercised by the surety until after thirty (30) days written notice to the City
Attorney of such intention to cancel or not to renew ".
10.3.3 The rights reserved to the City with respect to the bond are in addition
to all other rights of the City, whether reserved by this Ordinance or authorized by law and no
action, proceeding or exercise of a right with respect to such bond shall affect the City's rights
to demand full and faithful performance under this Franchise or limit Grantee's liability for
damages.
10.4 Insurance. Subject to Grantee's right to maintain reasonable deductibles in
such amounts as are approved by the City Manager, Grantee shall obtain and maintain in full
force and effect for the duration of this Franchise, at Grantee's sole expense, insurance
coverage in the following type and minimum amounts:
(1) Comprehensive general liability insurance with limits not less than:
(a) Two million dollars ($2,000,000.00) for bodily injury or death
to each person;
(b) One million dollars ($1,000,000.00) for property damage
resulting from any one (a) accident; and
(c) One million dollars ($1,000,000.00) for all other types of
liability.
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(2) Automobile liability for owned, non -owned and hired vehicles with a
limit of one million dollars ($1,000,000.00) for each person and one
million dollars ($1,000,000.00) for each accident.
(3) Worker's compensation within statutory limits and employer's liability
insurance with limits of not less than one million dollars
($1,000,000.00).
(4) Comprehensive form premises- operations, explosions and collapse
hazard, underground hazard and products completed hazard with limits
of not less than one million dollars ($1,000,000.00).
(5) Libel and slander Copyright violations with limits not less than one
million dollars ($ 1,000,000.00) per occurrence or its equivalent.
10.4.2 The City shall be named as an additional insured on said policies, and
the Grantee shall furnish a certificate of insurance as part of its acceptance of this Franchise as
required by Subsection 3.2 herein.
10.5 Indemnity
10.5.1 Grantee shall be responsible to the City for all damages, costs, losses or
expenses for the repair, replacement, or restoration of City's property, equipment, materials,
structures and facilities if and to the extent damaged, destroyed or found to be defective as a
result of Grantee's negligence, willful misconduct, or strict liability.
10.5.2 Grantee, for itself and its agents, employees, directors, officers,
subcontractors, and the agents and employees of said subcontractors, shall defend, indemnify,
and hold the City, its successors, assigns, officers, employees and elected officials harmless
from and against any and all claims, demands, suits, causes of action, and judgments for: (A)
damage to or loss of the property of any person (including, but not limited to Grantee, its
agents, officers, employees, directors and subcontractors, City's agents, officers and
employees, and third parties); and/or (B) death, bodily injury, illness, disease, worker's
compensation, loss of services, or loss of income or wages to any person (including but not
limited to the agents, officers and employees of Grantee, Grantee's subcontractors and City,
and third parties), if and to the extent arising out of, or resulting from the negligence, willful
misconduct or strict liability of Grantee, its agents, employees, and/or subcontractors, in the
performance of all activities and services pursuant to this Franchise.
10.5.3 In the event that any claim or loss is found by a court of competent
jurisdiction or administrative tribunal to be caused by the concurrent fault of both Grantee and
City, then each party shall be responsible to the extent found by such court or administrative
tribunal.
10.5.4 Grantee shall use its commercially reasonable efforts to ensure that the
terms of each contract awarded by Grantee for activities pursuant to this Franchise shall
contain indemnity and insurance provisions whereby the contractor shall indemnify City and
provide insurance coverage to the same extent as described above.
10.5.5 The City shall be responsible to the Grantee for all damages, costs,
losses or expenses for the repair, replacement, or restoration of Grantee's property,
equipment, materials, structures and facilities if and to the extent damaged, destroyed or
found to be defective as a result of the City's negligence, willful conduct, or strict liability.
10.5.6 The City, for itself and its agents, employees, directors, officers,
elected officials, subcontractors, and the agents and employees of said subcontractors, shall
defend, indemnify, and hold Grantee, its successors, assigns, officers, employees, directors,
agents, affiliates and subcontractors harmless from and against any and all claims, demands,
suits, causes of action, and judgments for: (A) damage to or loss of the property of any person
(including, but not limited to the City, its agents, officers, employees and subcontractors,
City's agents, officers and employees, and third parties); and/or (B) death, bodily injury,
illness, disease, worker's compensation, loss of services, or loss of income or wages to any
person (including but not limited to the agents, officers and employees of the City, City's
subcontractors and City, and third parties); and/or (C) claims arising out of the City's use of
Access Channels under this Franchise; if and to the extent arising out of or resulting from
negligence, willful misconduct or strict liability of the City, its agents, employees, directors,
officers, elected officials and/or subcontractors.
10.5.7 Either party shall give the other party prompt written notice of any
claims or suits. Either party shall, at its sole cost and expense, have the right to investigate
and defend same to the extent of its own interests.
10.6 Audits
10.6.1 The City reserves the right to conduct financial audits, at the Grantee's
offices during normal business hours and upon thirty (30) days written notice to inspect and
audit the Grantee's records showing the Gross Revenue from which its Franchise fee
payments are computed. Any such inspection or audit shall take place within thirty-six (36)
months following the respective calendar year and/or records thereof in question. In the event
an audit results in a determination that Grantee has underpaid any Franchise fee arising under
this Franchise by five percent (5 %) or more, Grantee shall reimburse the City for the
reasonable costs of the audit.
10.6.2 Grantee shall pay the City any amounts which any audit indicates are
underpaid, and City shall pay to Grantee any amounts which any audit indicates are overpaid.
Any such payments are to be made within thirty (30) days of final determination.
10.6.3 Upon written request and during normal business hours, the City
reserves the right to perform other audits, at its sole cost and expense, and with a
representative of Grantee present, for Franchise compliance purposes.
Section 11— Reporting Requirements.
11.1 Reports. Within forty -five (45) days of the City's written request, Grantee
shall file a report addressing the City's comments or concerns with respect to Grantee's
operations under this Franchise.
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11.2 Books and Records. At its sole cost and expense and upon written notice to
Grantee, the City may review such of Grantee's books and records, at Grantee's office serving
the Franchise Area, during normal business hours and on a non - disruptive basis, as are
reasonably necessary to monitor compliance with the terms hereof. Such records may include
records required to be kept by Grantee pursuant to the rules and regulations of the FCC, and
financial and other supporting information underlying reports pertaining to the Franchise Fee.
11.3 Filings. FCC Filings. Upon prior written request, the City shall have the right
to inspect and copy all filings related to this Franchise it makes with State and Federal
agencies.
11.4 Confidentiality of Information. The City will maintain confidentiality of any
and all information provided or made available by Grantee to the extent permitted by law
when Grantee has notified the City of the confidential nature of the information.
Section 12 — Regulatory Provisions.
12.1 Transfer of Ownership and Control
12.1.1 Neither this Franchise, nor any of the City's I -Net exclusive rights, held
by Grantee for use under this Franchise, which are in the Public Rights -of -Way, nor any rights
or privileges of Grantee under this Franchise, either separately or collectively, shall be sold,
resold, assigned, transferred or conveyed by Grantee to any other person, firm, or entity,
without the prior written consent of the City. Such approval shall not be unreasonably
withheld or delayed; provided, however, such approval is not required in the event Grantee
sells or otherwise transfers and assigns the Franchise to (i) an Affiliate, and/or (ii) Grantee's
lender(s), from time to time, for security purposes.
12.1.2 Except as set forth in Subsection 12.1.1, should the Grantee sell, assign,
transfer, convey or otherwise dispose of any of its rights or interests under this Franchise,
without the City's prior consent, the City may revoke this Franchise for default, in which
event all rights and interest of the Grantee shall cease. Any transfer in violation of this Section
shall be null and void and unenforceable.
12.2 Forfeiture and Termination.
12.2.1 In addition to all other rights and powers retained by the City under this
Franchise or otherwise, the City reserves the right to forfeit and terminate this Franchise and
all rights and privileges of Grantee hereunder in the event of a material breach of its terms and
conditions, after informal and cooperative efforts have failed, followed by the City's
reasonable notice and Grantee opportunity to cure, as provided in Subsection 12.3.
12.2.2 A violation of this Franchise shall not constitute a material breach if the
violation occurs without the fault of Grantee or occurs as a result of circumstances beyond its
commercially reasonable control. Grantee shall not be excused from performance of any of its
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obligations under this Franchise by mere economic hardship, nor misfeasance or malfeasance
of its directors, officers or employees.
12.2.3 A termination shall be declared only by a written decision of the City
Council, by ordinance, resolution or motion, after an appropriate public proceeding before the
City Council, which shall accord the Grantee due process and full opportunity to be heard and
to respond to any notice of grounds to terminate. All notice requirements shall be met by
providing the Grantee at least forty five (45) days prior written notice of any public
proceeding concerning the proposed termination of this Franchise. Such notice shall state the
grounds with particularity for termination alleged by City.
12.2.4 The City Council, upon finding the existence of grounds to terminate,
may either declare this Franchise terminated or excuse such grounds upon a showing by the
Grantee of mitigating circumstances or good cause for the existence of such grounds.
12.2.5 Neither Grantee's acceptance of this Franchise, Grantee's appearance
before the City Council concerning proposed termination of this Franchise, nor any action
taken by the City Council as a result of any such process, including a declaration of
termination or a finding of grounds to terminate, shall be construed to waive or otherwise
affect the Grantee's right to seek judicial determination of the rights and responsibilities of the
parties under this Franchise.
12.3 Violations
12.3.1 The procedures shown in Exhibit D and as described below shall apply.
If the City has reason to believe that Grantee is in violation of this Franchise, after informal
and cooperative efforts have failed after two (2) meetings or ten (10) business days,
whichever occurred first, the City Manager shall notify Grantee in writing of the violation
setting forth with particularity the nature of such violation. Within thirty (30) days of Grantee
receipt of such notice, or such longer period specified by the City Manager, Grantee shall
respond in writing that the violation has been cured, provide a cure plan or schedule that
reasonably satisfies the City Manager, provide explanations in refutation or excuse with
documentation to support that an alleged violation did not occur, refute the City's denial of
Grantee's cure plan, or refute the City's denial of an additional time period to complete the
cure plan. The City shall act on the Grantee's cure plan, if any, within thirty (30) days of City
receipt of such plan. The City shall provide written acceptance or denial of Grantee's cure
plan, which acceptance shall not be unreasonably withheld or delayed.
12.3.2 Notwithstanding Subsection 12.3.1 above, Grantee shall be allowed
thirty (30) days to cure violations after written notice per Subsection 12.3.1 is received from
the City, by taking appropriate steps to comply with the terms of this Franchise and any other
applicable lawful regulations. If the nature of the violation is such that it cannot be fully cured
within 30 days due to circumstances not under Grantee's commercially reasonable control, the
period of time in which Grantee must cure the violation shall be extended by the City
Manager in writing for such additional time reasonably necessary to complete the cure,
provided that (1) Grantee shall have promptly commenced to cure, and (2) Grantee is
diligently pursuing its efforts to cure in the City Manager's reasonable judgment.
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12.3.3 If the violation has not been cured within the time allowed under
Subsection 12.3.2 above, then Grantee shall be liable for liquidated damages for the following
violations:
(1) Failure to provide and maintain requested Cable Service to any
household within the Franchise Area as required by this
Franchise: $0.15 per day per affected household; provided,
however, in no event shall the aggregate amount for all such
violations exceed $5,000.00 per year.
(2) Failure to promptly provide bonds, insurance or reports,
records, filings or other data to the City, in accordance with
Sections 10 and 11: $100.00 dollars per day; provided,
however, in no event shall the aggregate amount for all such
violations exceed $5,000.00 per year.
(3) Failure to provide resources and an Access Channel in strict
compliance with Sections 6 and 7: $100.00 dollars per day;
provided, however, in no event shall the aggregate amount for
all such violations exceed $5,000.00 per year.
(4) Failure to comply with lawful City requirements concerning
construction in the Public Rights -of -Way: $100.00 dollars per
day; provided, however, in no event shall the aggregate amount
for all such violations exceed $5,000.00 per year.
(5) Failure to comply with a material requirement of Section 8:
$100.00 per day; provided, however, in no event shall the
aggregate amount for all such violations exceed $5,000.00 per
year.
(6) Failure to comply with Subsection 4.2.1(1 -2): the Term of this
Franchise shall be reduced from fifteen (15) years to five (5)
years.
12.3.4 Grantee agrees that each of the foregoing failures shall result in
injuries to the City and its citizens and institutions, the compensation for which would be
difficult to ascertain and to prove. Accordingly Grantee agrees that the foregoing amounts
and reduced Franchise Term are liquidated damages, not a penalty or forfeiture, and are
within one or more exclusions to the term "franchise fee" provided by federal law at 47
U.S.C. 542 (g) (2) (A -D) and therefore in no way part of the compensation paid to the City
pursuant to Section 10 herein.
12.3.5 If Grantee fails to make full and complete liquidated damage payments
as required by this Franchise within ten (10) business days after receipt of written notice from
the City Manager, then the City Manager may immediately take steps to withdraw without
further notice to Grantee the amount thereof from the bond maintained in accordance with
Subsection 10.3, except as subject to Subsection 12.3.6 below. Liquidated damages shall
accrue from whichever applies among the following: (1) thirty (30) days after City notice per
Subsection 12.3.1, if no cure plan is submitted; (2) on the date of City denial of the Grantee's
cure plan; (3) the date of the City accepted cure plan completion date; or (4) the date of the
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determination by the administrative hearing judge provided under Subsection 12.3.6, that
either (a) there was a violation; or (b) the cure plan was not unreasonably denied.
12.3.6 Notwithstanding any other provision of this Franchise, upon Grantee's
request, Grantee shall be afforded an opportunity to (i) refute that a violation has not occurred,
(ii) refute the City's denial of Grantee's cure plan, (iii) refute the City's denial of an additional
time period to complete the cure plan, and the City Manager may not act under Subsection
12.3.5 until the administrative hearing, as provided for herein, is concluded and a
determination has been made as to whether a violation has occurred. This opportunity shall
consist of an administrative hearing upon thirty (30) days' written notice before an impartial
hearing examiner jointly designated by the City Attorney and Grantee within thirty (30) days
of Grantee's request. The Grantee waives its right to request an administrative hearing if it
fails to respond in writing in accordance with Subsection 12.3.1.
12.3.7 If as a result of the administrative hearing, the hearing examiner
determines that a violation has not occurred, the City shall pay all of the expenses related to
the administrative hearing. If a violation has occurred, Grantee shall pay the expenses. After
the conclusion of the administrative hearing either party may seek any and all remedies that it
may have at law.
12.3.8 Upon evidence being received by the City that violations of this
Franchise or any ordinances lawfully regulating Grantee in the construction and operation of
its Cable System have occurred, or continue to occur after the thirty (30) day cure period, and
any additional time necessary to cure, as allowed under Subsection 12.3.2, the City may cause
an investigation to be made. If the City reasonably finds that such a violation continues to
exist or has occurred, then the City or Grantee may take any action authorized by law,
including forfeiture of this Franchise and a suit in court to compel compliance. In any such
proceeding the non substantially - prevailing party shall be required to pay the reasonable
expenses incurred by the substantially prevailing party in such suit and all damages and costs
(including attorney fees), but Grantee may be allowed, either by the court in the judgment of
forfeiture or by order of the City Council, a reasonable time thereafter, as fixed by such
judgment or order, to correct the default and pay such expenses, damages and costs as it may
be adjudged to pay, and if Grantee does so correct and so pay within such time, forfeiture
shall not become effective nor be enforced.
12.3.9 Failure by the City or the Grantee to enforce any rights under this
Franchise does not constitute a waiver of such rights.
12.4 Forfeiture and Termination by Grantee.
12.4.1 No earlier than 36 months from the Effective Date of this Franchise,
unless the City has materially broken Subsection 8.11.2, the Grantee reserves the right to
forfeit and terminate this Franchise in the event (i) of a material breach of the terms and
conditions of this Franchise by the City, after informal and cooperative efforts have failed,
followed by the Grantee's reasonable notice and City opportunity to cure, as provided in
Subsection 12.5 or (ii) that Grantee's average monthly Penetration Level falls below fifty
percent (50 %) for any consecutive six (6) month period.
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12.4.2 A violation of this Franchise by the City shall not constitute a material
breach if the violation occurs without the fault of the City or occurs as a result of
circumstances beyond its commercially reasonable control. The City shall not be excused
from performance of any of its obligations under this Franchise by mere economic hardship,
nor misfeasance or malfeasance of its directors, officers or employees.
12.4.3 A termination shall be declared by the Grantee only by a written notice
to the City Manager delivered not less than nine (9) months prior to such termination. Such
notice shall state the grounds with particularity for termination alleged by Grantee. The
Grantee's termination notice to the City Manager shall include the following:
(1) City Right to Purchase. If Grantee terminates or forfeits this
Franchise, or in the event of a denial of a renewal of this Franchise,
then the City shall have the right to purchase such portion of the
Grantee's Cable System as is located in the Franchise Area. The City
Council may exercise this right by delivering written notice to
Grantee of the City's decision to purchase Grantee's System within
ninety (90) days after the Grantee's forfeiture or termination notice to
the City Manager.
(2) Cable System Valuation. The value of Grantee's Cable System shall
be determined in accordance with 47 U.S.C. § 547(a)(1) as though
renewal of the Franchise were denied.
(3) Removal of Cable System. If the City elects not to purchase
Grantee's Cable System pursuant to Subsection 12.4.3(1) then
Grantee shall, upon notice by the City Manager, remove at Grantee's
own expense all portions of Grantee's Cable System designated by
the City Manager to be removed from all Rights -of -Way and other
public property within the City. If Grantee fails to do so, then the
City may perform such work at Grantee's expense. Any portion of
Grantee's Cable System not removed within twelve (12) months of
termination of the Franchise shall be considered abandoned and shall
become the City's property.
12.4.4 Nothing in this Section 12.4 shall be construed to waive or otherwise
affect the City's right to seek judicial determination of the rights and responsibilities of the
parties under this Franchise.
12.5 Violations of Section 8 by the City
12.5.1 If the Grantee has reason to believe that the City is in violation of
Section 8 or Subsections 3.1.1, 4.5.1, or 4.5.2 of this Franchise, after informal and
cooperative efforts have failed after two (2) meetings or ten (10) days, whichever occurred
first, the Grantee shall notify the City Manager in writing of the violation setting forth with
particularity the nature of such violation. Within thirty (30) days of the City Manager's receipt
of such notice, or such longer period specified by the Grantee, the City Manager shall respond
in writing that the violation has been cured, provide a cure plan or schedule that reasonably
satisfies the Grantee, provide explanations in refutation or excuse with documentation to
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support that an alleged violation did not occur, refute the Grantee's denial of the City's cure
plan, or refute the Grantee's denial of an additional time period to complete the cure plan.
The Grantee shall act on the City's cure plan, if any, within thirty (30) days of Grantee's
receipt of such plan. The Grantee shall provide written acceptance or denial of the City's cure
plan, which acceptance shall not be unreasonably withheld or delayed.
12.5.2 Notwithstanding Subsection 12.5.1 above, the City shall be allowed
thirty (30) days to cure a violation of Section 8 or Subsections 3.1.1, 4.5.1, or 4.5.2 after
written notice per Subsection 12.5.1 is received from the Grantee, by taking appropriate steps
to comply with the terms of this Franchise and any other applicable lawful regulations. If the
nature of the violation is such that it cannot be fully cured within 30 days due to
circumstances not under the City's commercially reasonable control, the period of time in
which the City must cure the violation shall be extended by the Grantee in writing for such
additional time reasonably necessary to complete the cure, provided that (1) the City shall
have promptly commenced to cure, and (2) the City is diligently pursuing its efforts to cure in
the Grantee's reasonable judgment.
12.5.3 Notwithstanding any other provision of this Franchise, upon the City
Manager's request, the City shall be afforded an opportunity to (i) refute that a violation has
not occurred, (ii) refute the Grantee's denial of the City's cure plan, (iii) refute the Grantee's
denial of an additional time period to complete the cure plan, and the Grantee may not act to
forfeit and terminate this Franchise until the administrative hearing, as provided for herein, is
concluded and a determination has been made as to whether a violation has occurred. This
opportunity shall consist of an administrative hearing upon thirty (30) days' written notice
before an impartial hearing examiner jointly designated by the City Attorney and Grantee
within thirty (30) days of the Grantee's request. The City waives its right to request an
administrative hearing if it fails to respond in writing in accordance with Subsection 12.5.1.
12.5.4 If, as a result of the administrative hearing, the hearing examiner
determines that a violation of Section 8 or Subsections 3.1.1, 4.5.1, or 4.5.2 has not occurred,
the Grantee shall pay all of the expenses related to the administrative hearing. If a violation
has occurred, the City shall pay the expenses. After the conclusion of the administrative
hearing either party may seek any and all remedies that it may have at law.
12.5.5 Upon evidence being received by the Grantee that violations of Section
8 or Subsections 3.1.1, 4.5.1, or 4.5.2 of this Franchise by the City have occurred, or continue
to occur after the thirty (30) day cure period, and any additional time necessary to cure, as
allowed under Subsection 12.5.2, the Grantee may cause an investigation to be made. If the
Grantee reasonably finds that such a violation continues to exist or has occurred, then the City
or Grantee may take any action authorized by law, including forfeiture of this Franchise and a
suit in court to compel compliance. In any such proceeding the non substantially - prevailing
party shall be required to pay the reasonable expenses incurred by the substantially prevailing
party in such suit and all damages and costs (including attorney fees), but the City may be
allowed, by the court in the judgment of forfeiture, a reasonable time thereafter, as fixed by
such judgment, to correct the default and pay such expenses, damages and costs as it may be
adjudged to pay, and if the City does so correct and so pay within such time, forfeiture shall
not become effective nor be enforced.
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12.6 Governing Law. This Franchise is subject to the provisions of the
Constitution and laws of the United States of America and the State of Washington.
12.7 Force Majeure. The term "Force Majeure" shall mean delays due to acts of
God, war, civil disturbances, fire, unavoidable casualty, construction delays due to weather,
failure of supplier(s), or other similar causes beyond the commercially reasonable control of
Grantee. The time within which Grantee shall be required to perform any act under the
Franchise shall be extended by a period of time equal to the number of days performance is
delayed due to a Force Majeure. Grantee shall not be subject to any penalty hereunder
because of acts or failure to act due to Force Majeure.
12.8 Severability And Preemption.
12.8.1 Except as provided in Subsection 12.8.2, if any section, subsection,
sentence, clause, phrase, term, provision, condition, covenant or portion of this Franchise is
for any reason held invalid or unenforceable by any court of competent jurisdiction, or
superseded by state or federal legislation, rules, regulations or decision, the remainder of this
Franchise shall not be affected thereby but shall be deemed as a separate, distinct and
independent provision, and such holding shall not affect the validity of the remaining portions
hereof, and each remaining section, subsection sentence, clause, phrase, provision, condition,
covenant and portion of this Franchise shall be valid and enforceable to the fullest extent
permitted by law.
12.8.2 If any material provision of this Franchise is for any reason held
invalid or unenforceable by any court of competent jurisdiction, or superseded by state or
federal law, rules, regulations or decision so that the intent of these provisions is frustrated,
the parties agree to immediately negotiate a replacement provision to fulfill the purpose and
intent of the superseded provisions consistent with applicable law.
12.8.3 In the event that federal or state laws, rules or regulations preempt a
provision or limit the enforceability of a provision of this Franchise, then the provision shall
be read to be preempted to the extent and for the time required by law. In the event such
federal or state law, rule or regulation is subsequently repealed, rescinded, amended or
otherwise changed so that the provision hereof that had been preempted is no longer
preempted, such provision shall thereupon return to full force and effect, and shall thereafter
be binding on the parties hereto, without the requirement of further action on the part of the
City, and any amendments to this Franchise negotiated pursuant to Subsection 12.8.2 as a
result of such provision being preempted shall no longer be of any force or effect.
Section 13 — Miscellaneous Provisions.
13.1 Notices
13.1.1 All notices from Grantee to the City pursuant to this Franchise shall be
directed to the City Manager at City Hall, 321 East Fifth Street, P.O. Box 1150, Port Angeles,
WA 99362 -0217, or to such officer as designated by the City Manager.
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13.1.2 All notices to Grantee pursuant to this Franchise shall be directed to the
Legal Department at 1201 Third Avenue, Suite 3600, Seattle, WA 98101, with a copy to the
System Manager at 725 East First Street, Port Angeles, WA 98362. Grantee shall maintain
within the City throughout the term of this Franchise an address for service of notices by mail.
Grantee shall also maintain within the City of Port Angeles a local telephone number
operational during normal business hours for the conduct of matters related to this Franchise.
Any change in address or telephone number shall be furnished to the City ten (10) days prior
to the change.
13.2 Entire Agreement. This Franchise contains all of the agreements of the
parties with respect to any matter covered or mentioned in this Franchise and no prior or
contemporaneous agreements or understandings pertaining to any such matters shall be
effective for any purpose. No provision of this Franchise may be amended or added to except
by agreement in writing signed by both of the parties.
13.3 Repeal of Prior Ordinances. Cable Franchise Ordinance No. 2470 is hereby
repealed and is no longer in force and effect, effective as of the Effective Date.
13.4 Attorney's Fees. If any suit or other action is instituted in connection with
any controversy arising under this Franchise, the substantially prevailing party shall be
entitled to recover all of its costs and expenses including such sum as the Court may judge
reasonable for attorney's fees, including fees upon appeal of any judgment or ruling.
13.5 Time is of the Essence. Time is of the essence of this Franchise and each and
all of its provisions in which performance is a factor.
13.6 Remedies are Cumulative. Any remedies provided for under the terms of this
Franchise are not intended to be exclusive but shall be cumulative with all other remedies
available to the City and Grantee at law, in equity, or by statute.
13.7 Equal Protection. In the event the City enters into a franchise, permit,
license, authorization, or other agreement of any kind with any other person or entity other
than the Grantee to enter into the City's streets and public rights -of -way for the purpose of
constructing or operating a Cable System or providing Cable Service to any part of the
Service Area, the material provisions thereof shall be no more favorable or less burdensome
to those contained herein, in order that one operator not be granted an unfair competitive
advantage over another, and to provide all parties equal protection under the law.
13.8 Franchise Governs. All terms, conditions and provisions of this Franchise
shall prevail over conflicting or inconsistent provisions of any City Requirement.
Section 14 - Effective Date. This Ordinance shall take effect five days following the
date of its publication by summary.
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PASSED by the City Council of the City of Port Angeles at a regular meeting of said
Council held on the 21st day of May, 2002.
APPROVED AS TO FORM:
Craig D.
n, City Attorney
PUBLISHED: May 26, 2002
By Summary
EXHIBITS
Exhibit A —
Exhibit B —
Exhibit C —
Exhibit D —
Glenn Wiggins, Mayor
ATTEST:
Acceptance of Franchise Verbatim Form
Grantee Furnished Connections to Community Facilities
Northland Fiber Upgrade Plan and Node Areas
Franchise Violation Procedure
Exhibit A — Acceptance Of Franchise Verbatim Form
In accordance with Section 3.2, the Grantee hereby submits this acceptance of the Franchise
and all terms and conditions thereof to the City at the Clerk's Office. The Grantee hereby
certifies that the undersigned is a duly authorized officer of the Grantee with the authority to
execute acceptance of this Franchise.
Attached herewith are the following documents in accordance with the requirements of the
Franchise:
1. A bond in accordance with Section 10.3.
2. A certificate of insurance in accordance with Section 10.4.
3. Payment of the City's expenses in accordance with Section 3.2.
ACCEPTED BY NORTHLAND CABLE TELEVISION, INC.
.Z.,,,,
Name and title
qb
gVP r Date: 5 13 , 2002.
Exhibit B - Grantee Furnished Connections To Community Facilities
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City Municipal
Facilities
Address
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City Hall (includes sites
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321
E 5th Street
1
1
1
8.
PA Police Department
1
incl
8.
Dispatch 911
1
incl
166
Vern Burton
Community Center
308
E 4th Street
1
1
10.
Fire Station
102
E 5th St
1
1
69.
Senior Center
328
E 7th St
1
1
72.
Carnegie Library
205
S Lincoln St
1
1
73.
Fine Arts Center
1203
E Lauridsen
1
1
75.
William Shore Pool
225
E 5th St
1
1
86.
Parks Maintenance
16th St
F St
1
87.
Cemetery- Office
3127
W 18th St
1
1
65.
Civic Field
307
S Race St
1
1
70.
Lincoln Park
Fairgrounds
1
1
71.
Veterans Memorial
215
S Lincoln St
1
1
76.
Crown Park
1901
W 4th St
1
1
77.
Erickson Park
302
S Race St
1
1
78.
Lion's Park
600
Whidbey
1
1
79.
Rains Park
915
E 8th St
1
1
80.
Shane Park
613
S G St
1
1
82.
Harbor View Park
Ediz
Hook
1
1
83.
Wolverton Park
A/B
11/10 Alley
1
1
85.
Bmx Track
1521
W Lauridsen
1
1
132.
Volunteer Park
16th
and L
1
1
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City & State
(WSDOT) Traffic
Signals
Address
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92.
T1
Front St
Laurel St
n/a
1
93.
T2
1st St
Laurel St
n/a
1
94.
T3
Front St
Oak St
n/a
1
95.
T4
1st St
Oak St
n/a
1
96.
T5
8th St
Race St
n/a
1
97.
T6
5th St
Race St
n/a
1
98.
T7
Lauridsen
Blvd
Race St
n/a
1
99.
T8
5th St
Peabody St
n/a
1
100.
T9
8th St
Race St
n/a
1
101.
T10
8th St
Cherry St
n/a
1
102.
T11 (WSDOT)
8th St
Lincoln St
n/a
1
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(WSDOT) Traffic
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Address
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103.
T12 (WSDOT)
5th St
Lincoln St
n/a
1
104.
T13 (WSDOT)
1st St
Lincoln St
n/a
1
105.
T14 (WSDOT)
Front St
Lincoln St
n/a
1
106.
T15 (WSDOT)
1st St
Peabody St
n/a
1
107.
T16 (WSDOT)
Front St
Race St
n/a
1
108.
T17 (WSDOT)
1st St
Race St
n/a
1
109.
T18 (WSDOT)
Front St
Ennis St
n/a
1
110.
T19 (WSDOT)
1st St
Ennis St
n/a
1
111.
T20 (WSDOT)
Hwy 101
Golf Course
Rd
n/a
1
112.
T21 (WSDOT)
Hwy 101
Del Guzzi Dr
n/a
1
113.
T22 (WSDOT)
Marine Dr
Tumwater
Route
n/a
1
114.
T23 (WSDOT)
14th St
Lincoln St
n/a
1
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City Utility Systems
Facilities
Address
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Landfill
3501
W 18th
1
1
55.
Corp Yard
1703
S B St
1
1
1
56.
Light Ops
240
W Front
1
1
57.
Wastewater Treatment
Plant
1509
Columbia
1
1
11.
Ranney Well
Elwha River
n/a
1
12.
E St. Reservoir
1016
S E St
n/a
1
13.
Jones St. Reservoir
1200
E 9th St
n/a
1
14.
Black Diamond
Reservoir
Black
Diamond Rd
n/a
1
15.
Peabody Heights
Reservoir
600
Viewcrest
n/a
1
16.
Mill Creek Reservoir
600
Viewcrest
n/a
1
17.
Spruce Booster Station
1000
Spruce St
n/a
1
18.
Scrivner Pump
300
E Scrivner
n/a
1
19.
Mill Creek Pump
Station
600
Viewcrest
n/a
1
20.
McDougal Booster
Pump
3500
McDougal
n/a
1
21.
Jones St. Pump Station
1200
E 9th St
n/a
1
22.
Jones St. Emergency
Pump Station
1200
E 9th St
n/a
1
23.
Water St. Pump Station
Water St
n/a
1
29.
Pump Station #1
5th St &
N St
n/a
1
30.
Pump Station #7
W 19th St
n/a
1
1
31.
Pump Station #10
1829.5
W 12thst
n/a
1
32.
Pump Station #3
Marine &
Hill
n/a
1
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Pump Station #8
H St &
14th
n/a
1
34.
Pump Station #4
313
Marine Drive
n/a
1
35.
Pump Station #2
1/2 Alley &
Cherry
n/a
1
36.
Pump Station #5
219
E 2nd St
n/a
1
37.
Pump Station #9
Del Guzzi Dr.
n/a
1
38.
Pump Station #6
933
Church St
n/a
1
39.
Peabody Substation
2803
S Peabody
n/a
1
40.
Race Substation
n/a
1
41.
Albert Substation
n/a
1
42.
Laurel Substation
110
E 14th St
n/a
1
43.
Washington Substation
224
S Washington
n/a
1
1
44.
College Substation
1306
E Park St
n/a
1
45.
Valley Substation
206
S Valley St
n/a
1
46.
A Street Substation
1616
S A St
n/a
1
47.
F Street Substation
1604
S F St
n/a
1
48.
I Street Substation
1538
W 7th St
n/a
1
49.
CSO PS 1
5th St &
N St
n/a
1
50.
CSO RR/Oak
Railroad
Ave &
Oak St
n/a
1
51.
CSO RR/Laurel
Railroad
Ave &
Laurel St
n/a
1
52.
CSO Lincoln
Lincoln &
2nd St
n/a
1
53.
CSO Francis
Francis St &
Caroline St
n/a
1
88.
Elwha Emergency
Valve
2700
S Milwaukie
Dr
n/a
1
89.
PUD Intertie
Baker St.
n/a
1
90.
PUD Intertie
Monroe St.
n/a
1
1
Map
ID
Clallam County
CATV drops
I -Net Drops
Address
initial
future
initial
future
Node
9.
County Courthouse
(includes sites below)
223
E 4th St
1
1
9.
Health And Human
Services
1
9.
Sheriff
1
126.
Fairgrounds
1608
W 18th St
1
1
127.
Juvenile Services
1912
W 18th
1
1
128.
Maintenance Shops
1033
W Lauridsen
Blvd
1
1
129.
Child Support
Enforcement
421
E 5th Ave
1
1
163.
Hospice
540
E 8th St
1
1
56
Drug Task Force (site
56)
240
W Front
1
Map
ID
Port Angeles
Educational
Address
CATV drops
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initial
future
initial
future
Node
1.
Jefferson School
218
E 12th St
1
1
4.
Peninsula College
1502
Lauridsen
Blvd
1
1
5.
Monroe School
102
Monroe Rd
1
1
6.
Roosevelt Middle
School
106
Monroe Rd
1
1
59.
Hamilton School
1822
W 7th St
1
1
66.
North Olympic Library
System
2210
S Peabody St
1
1
1
160.
Marine Lab
315
N Lincoln St
1
1
162.
Bus Garage
639
Monroe Rd
1
1
2.
P.A. High School
304
E Park Ave
1
1
3.
Franklin School
2505
S Washington
St
1
1
60.
Stevens Middle School
1139
W 14th St
1
1
151.
The Choice
924
W 9th St
1
1
153.
Central Services
216
E 4th St
1
1
154.
Dry Creek School
25
Rife Rd
1
1
167.
Fairview
166
Lake Farm Rd
1
1
Map
ID
Health Care
Address
CATV drops
I -Net Drops
initial
future
initial
future
Node
7.
Olympic Memorial
Hospital
1005
Georgiana St
1
1
156.
Olympic Medical
Center
920
Caroline St
1
1
168.
Olympic Medical
Center - MRI
1102
E Front St
1
157.
PCMH - Children's
Center
1004
W 16th St
1
1
158.
PCMH - Second Street
House
138
W 2nd St
1
1
159.
PCMH - Horizon
Center
205
E 5th St
1
1
164.
Olympic Medical
Center
939
Carolina
1
1
169.
Virginia Mason
433
E 8th St
1
170.
Virginia Mason
813
E 8th St
1
171.
Virginia Mason
912
Caroline St
1
172.
Virginia Mason
923
Georgiana St
1
- 5 -
Map
ID
Port of Port Angeles
Address
CATV drops
I -Net Drops
initial
future
initial
future
Node
61.
Port Of PA
338
W 1st St
1
1
1
1
62.
Port Of PA
2138
W Lauridsen
Blvd
1
1
1
118.
115.
PABH
832
Boat Haven
Drive
1
1
116.
Port Of PA
115
E Railroad
Ave
1
1
117.
Port Of PA
112
S Valley St
1
1
118.
Marine Terminal
202
N Cedar St
1
1
120.
Port Of PA
2007
S 0 St
1
1
121.
Port Of PA
1901
W Lauridsen
Blvd
1
1
122.
Port Of PA
2203
W Lauridsen
Blvd
1
1
123.
Fairchild International
Airport
1
1
124.
Industrial Park East
1
1
125.
Industrial Park West
1
1
173.
Port Of PA
1301
Marine Drive
1
Map
ID
Regional
Address
CATV drops
I -Net Drops
initial
future
initial
future
Node
130.
Clallam County PUD.
2431
E Hwy 101
1
1
131.
Clallam Transit
830
W Lauridsen
Blvd
1
1
133.
Clallam County PUD.
1936
W 18th St
1
1
134.
Housing Authority
2603
S Francis St
1
1
135.
North Olympic Youth
Centers
535
E 1st St
1
1
136.
Lower Elwha Klallam
Tribe
1026
E 1st St Suite
2
1
1
Map
ID
State of Washington
Address
CATV drops
I -Net Drops
initial
future
initial
future
Node
137.
Children & Family
Services (includes site
below)
201
W 1st St
1
1
137.
Community Services
Office
201
W 1st St
1
incl
138.
Juvenile Rehabilitation
(includes sites below)
228
W 1st St, Suite
V
1
1
138.
Dept. of Community
Corrections
228
W 1st St
1
incl
138.
Drivers License
Examining Office
228
W 1st St
1
incl
- 6 -
1
Map
ID
State of Washington
continuation
Address
CATV drops
I -Net Drops
initial
future
initial
future
Node
138.
Developmental
Disabilities
228
W 1st St, Suite
F
1
1
1
incl
143.
139.
Home & Community
Services
235
W 1st St
1
1
1
1
Map
ID
140.
Dept. of Revenue
734
E 1st St, Suite
B
initial
1
initial
1
Node
141.
Vocational
Rehabilitation
1026
E 1st St, Suite
2
1
1
142.
Dept. of Revenue and
L &I
1601
E Front St
1
1
143.
Dept. of Highway
Maintenance
1707
S C St
1
1
Map
ID
U.S. Government
Address
CATV drops
I -Net Drops
initial
future
initial
future
Node
64.
Olympic National Park
600
E Park
1
1
144.
Social Security Admin.
(includes site below)
138
W 1st St
1
1
144.
Olympic Coast
National Marine
Sanctuary
138
W 1st St
1
145.
Natural Resources
Conservation Service
113
E 3rd St,
Room 2B
1
1
146.
Postal Service
424
E 1st St
1
1
147.
Navy Recruiting
Station
721
E 1st St
1
1
148.
Marines Recruiting
Station
701
E Front St
1
1
149.
Army Recruiting
Station
703
E Front St
1
1
150.
Air Force Recruiting
Station
1520
S.Critchfield
Rd
1
1
161.
BPA PA Substation
1400
E Park Ave.
n/a
1
- 7 -
1n
Exhibit C - Northland Fiber Upgrade Plan And Node Areas
Exhibit D - Franchise Violation Procedure
Informal &
Cooperative
Efforts Fail
City Violation
Notice
Grantee Response
(within 30 days)
(i) Violation
Cured
(ii) Violation Cure
• Plan Provided Within
30 Days
(iii) Refute Violation
Notice Within 30 Days
• City Cure Approval 4—
City Action on
Grantee Cure Plan
Within 30 Days
Approved
Denied
Yes
► Violation Cured?
No
1—
(iv) None
F: \2002- 09.Word
May 6, 2002
•
(Grantee Option)
Administrative
Hearing
No
Violation Cure
Period Extended
City
Prevails
•
Grantee Prevails
Yes
Grantee Pays Liquidated Damages and
Administrative Hearing Expenses,
Termination or other City action
City Pays Administrative Hearing
Expenses
Summaries of Ordinances Adopted by the
Port Angeles City Council
on May 21, 2002
Ordinance No. 3115
This Ordinance of the City of Port Angeles, Washington, establishes a fee of $60.00
during regular working hours and $115.00 outside of regular hours for electric utility
service turn-ons and turn -offs and amends Ordinance 3085 and Chapter 3.70 of the Port
Angeles Municipal Code.
Ordinance No. 3116
This Ordinance of the City of Port Angeles, Washington, grants to Northland Cable
Television, Inc., doing business as Northland Cable Television, a non - exclusive franchise
for the purpose of constructing, maintaining, operating, repairing, replacing, upgrading,
rebuilding and using a cable television system in public streets, alleys, and rights -of -way
in the City of Port Angeles to provide cable service, and repeals Ordinance 2470.
The full texts of the Ordinances are available at City Hall in the City Clerk's office or will be
mailed upon request. Office hours are Monday through Friday from 8:00 a.m. to 5:00 p.m.
These Ordinances shall take effect five days after publication of this summary.
Becky J. Upton
City Clerk
Publish: May 26, 2002