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Ordinances: 391

Ordinance Number

391 

Ordinance Subject

Granting a Ten-Year Franchise to Comcast of Puget Sound, Inc., to Provide Cable Television Services Within the City

Date Adopted

7/21/2003 

Repealed By

 

Amended By

 

Ordinance





ORDINANCE NO. 391



AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UNIVERSITY PLACE, WASHINGTON, GRANTING A TEN-YEAR FRANCHISE TO COMCAST OF PUGET SOUND, INC., TO PROVIDE CABLE TELEVISION SERVICES WITHIN THE CITY  

        WHEREAS, the City Council desires to provide University Place citizens with additional choice regarding cable television services; and

        WHEREAS, COMCAST of Puget Sound, Inc., and its predecessor corporations have been providing cable television and other telecommunications services to residents of the City since incorporation, and COMCAST is fully capable of providing advanced telecommunications services to University Place citizens; and

        WHEREAS, it would be in the citizens’ best interests to provide a diversity of such services within the City; NOW, THEREFORE,

        THE CITY COUNCIL OF THE CITY OF UNIVERSITY PLACE, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:  

        Section 1.        Granting a Cable Television Franchise to COMCAST of Puget Sound, Inc.  COMCAST of Puget Sound, Inc., is hereby granted a franchise to construct, maintain and provide cable television services, as set forth in the Cable TV Franchise Agreement between the City of University Place and COMCAST of Puget Sound, in the form attached hereto as Exhibit “A” and incorporated herein by reference.  This franchise shall expire ten (10) years from its effective date unless terminated sooner.

        Section 2.        Severability.  If any provision of this Ordinance or its application to any person or circumstance is held invalid, the remainder of the Ordinance or the application of the provision to other persons or circumstances by a court of competent jurisdiction shall not be affected.

        Section 3.        Directions to City Clerk.  The City Clerk is hereby authorized and directed to forward certified copies of this ordinance to the franchisee and permit holder as set forth in this ordinance.

        Section 4.        Publication and Effective Date. This ordinance shall take effect and be in full force five (5) days after the date of publication.  The City Clerk is hereby directed to publish this ordinance in full.

        PASSED BY THE CITY COUNCIL ON JULY 21, 2003.



                                                _____________________________________
                                                Jean Brooks, Mayor


ATTEST:



__________________________________
Catrina Craig, CMC, City Clerk

APPROVED AS TO FORM:



__________________________________  
Timothy X. Sullivan, City Attorney

Published:  August 14, 2003
Effective Date:  August 19, 2003




Exhibit A

FRANCHISE AGREEMENT


BETWEEN

THE CITY OF UNIVERSITY PLACE, WASHINGTON

&


 


 Comcast of Puget Sound, Inc.
 
DATED 7-1-2003


TABLE OF CONTENTS


SECTION 1.  DEFINITIONS        2

“Access”        2
“Access Center”        2
“Access Channel”        2
“Access Fees”        2
“Activation” or “Activated”        2
“Affiliated Entity” or “Affiliate”        3
“Bad Debt”        3
“Basic Service”        3
“Broadcast Signal”        3
“Cable Act”        3
“Cable Modem Service” or“Cable Internet Service”        3
“Cable Operator”        3
“Cable Service”        3
“Channel”        4
“City” or “Grantor”        4
“Connection”        4
“Designated Access Provider”        4
“Designated Distributor”        4
“Downstream Channel”        4
“Dwelling Unit”        4
“Expanded Basic Service”        4
“FCC”        4
“Fiber Optic”        5
“Franchise”        5
“Franchise Area”        5
“Franchise Fee”        5
“Gross Revenues”        5
“Headend” or “Hub”        6
“Institutional Network” or “I-Net”        6
“Leased Access Channel”        6
“Non-Commercial”        6
“Normal Business Hours”        7
“Normal Operating Conditions”        7
“Pay Service” or “Premium Service”        7
“Person”        7
“RCC”        7
“RMC”        7
“Rights-of-Way”        7
“School”        7
“Service Interruption”        8
“State”        8
“Street”        8
“Subscriber”        8
“System” or “Cable System”        8
“Tier”        8
“Upstream Channel”        8
“Video Programming”        8

SECTION 2.  GRANT OF FRANCHISE        9

2.1        Grant        9
2.2        Use of Rights-of-Way        9
2.3        Duration        10
2.4        Effective Date        10
2.5        Franchise Nonexclusive        11
2.6        Grant of Other Franchises        11
2.7        Familiarity with Franchise        11
2.8        Effect of Acceptance        11
2.9        Police Powers        11
2.10       Franchise Area        12

SECTION 3.  FRANCHISE FEE AND FINANCIAL CONTROLS        12

3.1        Franchise Fee        12
3.2        Payments        12
3.3        Acceptance of Payment        12
3.4        Quarterly Franchise Fee Reports        12
3.5        Audits        12
3.6        Financial Records        13
3.7        Interest on Late Payments        13
3.8        Maximum Franchise Fee        13
3.9        Additional Commitments Not Franchise Fees        13
3.10       Payment on Termination        14
3.11       Duty to Cooperate        14
3.12       Franchise Fee and Taxes on Cable Modem Services        14

SECTION 4.  ADMINISTRATION AND REGULATION        15

4.1        General Provisions        15
4.2        Rates and Charges        15
4.3        Rate Discrimination        15
4.4        Filing of Rates and Charges        16
4.5        Late Fees        16
4.6        Time Limits Strictly Construed        16
4.7        Performance Evaluation        16

SECTION 5.  FINANCIAL AND INSURANCE REQUIREMENTS        17

5.1        Indemnification        17
5.2        Insurance Requirements        18
5.3        Security        19

SECTION 6.  CUSTOMER SERVICE        19

6.1        Subscriber Contracts        19
6.2        Subscriber Privacy        20
6.3        Customer Service Center        20
6.4        Customer Service Agreement and Manual        20

SECTION 7.  REPORTS AND RECORDS        21

7.1        Open Records        21
7.2        Confidentiality        21
7.3        Records Required        21
7.4        Copies of Federal and State Reports        22
7.5        Complaint File and Reports        22
7.6        Inspection of Facilities        23
7.7        False Statements        23

SECTION 8.  PROGRAMMING AND CHANNEL CAPACITY        23

8.1        Grantee Compliance        23
8.2        Broad Programming Categories        23
8.3        Obscenity        23
8.4        Parental Control Device        23
8.5        Complementary Cable Service        24
8.6        New Developments        24

SECTION 9.  EDUCATIONAL AND GOVERNMENTAL ACCESS        24

9.1        Capital Contribution        24
9.2        Access Reporting        25
9.3        Management and Control of Access Channels        25
9.4        Access Channels        25
9.5        Change In Technology        26
9.6        Access Channels On Basic Service        26
9.7        Access Channel Location/Relocation        26
9.8        Return Lines        27
9.9        Technical Quality        27
9.10         Payments to Grantee        27

SECTION 10.  GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION        28

10.1       Construction        28
10.2       Location of Facilities        29
10.3       Restoration of Rights-of-Way / Grantor Owned Property        29
10.4       Maintenance and Workmanship        30
10.5       Acquisition of Facilities        30
10.6       Reservation of Grantor Rights-of-Way Use Rights        30
10.7       Discontinuing Use of Facilities        31
10.8       Hazardous Substances        31
10.9       Undergrounding of Cable        31
10.10        Construction Codes        32
10.11        Construction and Use of Poles        32
10.12        Tree Trimming        33
10.13        Standards        33
10.14        Stop Work        34
10.15        Work of Contractors and Subcontractors        34

SECTION 11. CABLE SYSTEM DESIGN AND CAPACITY        34

11.1         Equal and Uniform Service        34
11.2       Cable System Upgrade        34
11.3       Technical Performance        35
11.4       Cable System Performance Testing        35
11.5       Additional Tests        36

SECTION 12.  INSTITUTIONAL NETWORK        36

12.1       Option to Provide Institutional Network at Grantor’s request        36
12.2       Design and Estimation of Cost        36
12.3       Exclusive Right of Use        37

SECTION 13.  SERVICE AVAILABILITY        37

SECTION 14.  STANDBY POWER AND EAS        37

14.1       Standby Power        37
14.2       Emergency Alert Capability        38

SECTION 15.  FRANCHISE BREACHES; TERMINATION OF FRANCHISE        38

15.1       Informal Dispute Resolution        38
15.2       Procedure for Remedying Franchise Violations        38
15.3       Alternative Remedies        39
15.4       Assessment of Monetary Damages        40
15.5       Revocation        40
15.6       Removal        42

SECTION 16.  ABANDONMENT        42

16.1       Effect of Abandonment        42

SECTION 17.  FRANCHISE TRANSFER        43

17.1       Transfer of Ownership or Control        43

SECTION 18.  MISCELLANEOUS PROVISIONS        44

18.1       Preferential or Discriminatory Practices Prohibited        44
18.2       Notices        44
18.3       Costs to be Borne by Grantee        45
18.4       Binding Effect        45
18.5       Authority to Amend        45
18.6       Venue        45
18.7       Governing Law        46
18.8       Guarantee        46
18.9       Captions        46
18.10        Construction of Franchise        46
18.11        No Joint Venture        46
18.12        Waiver        46
18.13        Severability        46
18.14        Entire Agreement        46
18.16        Compliance with Federal, State, and Local Laws        47
18.17        Force Majeure        47

EXHIBIT I  -  PARENT GUARANTEE        49

EXHIBIT II  -  ACCESS ORIGINATION POINTS        50



CABLE TELEVISION FRANCHISE



        This Cable Television Franchise is entered into in University Place, Washington, this              ___ day of                       , 2003, by and between Comcast of Puget Sound, Inc. (formerly Cable TV Puget Sound, Inc.), a corporation, hereinafter (“Grantee”) and the City of University Place, Washington, a municipal corporation, hereinafter (“Grantor” or the “City” ).  Grantor and Grantee are sometimes referred to hereinafter collectively as the “parties”.

        WHEREAS, the Grantor has reviewed Grantee's performance under the prior franchise and the quality of service during the prior franchise term, has identified the future cable-related needs and interests of the Grantor and its citizens, has considered the financial, technical and legal qualifications of Grantee, and has determined whether Grantee's plans for constructing, operating and maintaining its System are adequate, in a full public proceeding affording due process to all parties; and

        WHEREAS, the public has had adequate notice and opportunity to comment on Grantee's proposal to provide Cable Service within the Grantor; and

        WHEREAS, the Grantor has a legitimate and necessary regulatory role in ensuring the availability of cable service, high technical capability and reliability of cable systems in its jurisdiction, the availability of local programming (including educational and governmental access programming) and quality customer service; and

        WHEREAS, diversity in cable service and local and non-local programming is an important policy goal and the Grantee's System should offer a wide range of programming services; and

        WHEREAS, flexibility to respond to changes in technology, subscriber interests and competitive factors within the cable service market should be an essential characteristic of this Franchise and both the Grantor and the Grantee will stress maximum system flexibility to take advantage of new technology to benefit subscribers and citizens as such technology becomes available; and

        WHEREAS, the Grantor is authorized by RCW to grant one or more nonexclusive franchises to construct, operate and maintain a cable television system within the boundaries of the Grantor.

        NOW, THEREFORE, in consideration of the mutual promises made herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Grantor and Grantee do hereby agree as follows:

SECTION 1.  DEFINITIONS

For the purposes of this Franchise and all exhibits attached hereto the following terms, phrases, words and their derivations shall have the meanings given herein.  When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural.  Words not defined shall be given their common and ordinary meaning. The word “shall” is always mandatory and not merely directory.

“Access”
means the availability for Non-Commercial use by various governmental and educational agencies, including Grantor and its designees, of particular channels on the System to receive and distribute Video Programming to Subscribers,  as permitted under applicable law, including, but not limited to:

        (A)        “Educational Access” means Access where Schools are the primary users having editorial control over programming and services;

        (B)         “Governmental Access” means Access where governmental institutions or their designees are the primary users having editorial control over programming and services; and

        (C)        “Access” means Educational Access and Governmental Access, collectively.

“Access Center”  

means a facility or facilities where signals are managed and delivered to the Grantee for Downstream transmission to Subscribers or to other Access Centers via a dedicated connection.

“Access Channel”
means any Channel, or portion thereof, designated for Non-Commercial Access purposes or otherwise made available to facilitate or transmit Access programming.

“Access Fees”  

means the Capital Contribution paid to the Grantor by the Grantee in accordance with Section 9.1 herein.

“Activation” or “Activated”

means the status of any capacity on or part of the System wherein the use of that capacity or part thereof may be made available without further installation of system equipment other than Subscriber premise equipment, whether hardware or software.

“Affiliated Entity” or “Affiliate”

when used in connection with Grantee means any corporation, Person who owns or controls, is owned or controlled by, or is under common ownership or control with, Grantee and its successor corporations.

“Bad Debt”  

means amounts lawfully owed by a Subscriber  and accrued as revenues on the books of Grantee, but not collected after reasonable efforts by Grantee.

“Basic Service”  

means any Cable Service tier which includes, at a minimum, the retransmission of local television Broadcast Signals and Access programming.

“Broadcast Signal”  

means a television or radio signal transmitted over the air to a wide geographic audience, and received by a System off-the-air by antenna, microwave, satellite dishes or any other means.

“Cable Act”

means the Cable Communications Policy Act of 1984, as amended.

“Cable Modem Service” or “Cable Internet Service”  

means a service offered by Grantee whereby Persons receive access to the Internet through the Cable System.

“Cable Operator”  

means any Person or groups of Persons, including Grantee, who provides Cable Service over a System and directly or through one or more Affiliates owns a significant interest in such System or who otherwise control(s) or is(are) responsible for, through any arrangement, the management and operation of such a System.

“Cable Service”

means the one-way transmission to Subscribers of Video Programming, or other programming service and Subscriber interaction, if any, which is required for the selection or use of such Video Programming or other programming service.

“Channel”  

means a portion of the frequency band capable of carrying a Video Programming Service or combination of Video Programming Services, whether by analog or digital signal, on a twenty-four (24) hour per day basis or a portion thereof.

“City” or “Grantor”

means the City of University Place, Washington, a municipal corporation, of the State of Washington.

“Connection”  

with regard to connections to public buildings, means installation of fiber optic or coaxial cable or other System related facilities through the outer wall of the building

“Designated Access Provider”  
means the entity or entities designated by the Grantor to manage or co-manage Educational or Governmental Access Channels and facilities.  The Grantor may be a Designated Access Provider.

“Designated Distributor”

means an entity authorized by the Grantor to distribute Access Programming including, but not limited to, the RCC and RMC.

“Downstream Channel”

means a Channel capable of carrying a transmission from the Headend to remote points on the System.

“Dwelling Unit”  

means any residential building, or each portion thereof.

“Expanded Basic Service”  

means cable programming services not included in the Basic Service and excluding premium or pay-per-view services.

“FCC”  

means the Federal Communications Commission or its lawful successor

“Fiber Optic”  

means a transmission medium of optical fiber cable, along with all associated electronics and equipment capable of carrying Cable Services or Institutional Network Service by means of electric lightwave pulses.

“Franchise”  

means the document in which this definition appears, which is executed between Grantor and Grantee, containing the specific provisions of the authorization granted and the contractual and regulatory agreement created hereby.

“Franchise Area”  

means the area within the jurisdictional boundaries of the Grantor, including any areas annexed by Grantor during the term of this Franchise.

“Franchise Fee”

includes any tax, fee or assessment of any kind imposed by the Grantor on the Grantee or Subscribers, or both solely because of their status as such.  The term Franchise Fee does not include:

        (A)        Any tax, fee or assessment of general applicability. For example, a utility tax;

        (B)        Capital costs which are required by the Franchise to be incurred by the Grantee for educational or governmental access facilities, including the support required in Section 9.1 herein;

        (C)        Requirements or charges incidental to the awarding or enforcing of the franchise, including but not limited to, payments for bonds, letters of credit, insurance, indemnification, penalties or liquidated damages; or

        (D)        Any fee imposed under Title l7, United States Code.

“Gross Revenues”

means any and all revenue derived directly or indirectly by the Grantee, or by any other entity that is a Cable Operator of the Cable System including Grantee’s Affiliates, from the operation of the Grantee's Cable System to provide Cable Services in the Franchise Area.  Gross Revenues include, by way of illustration and not limitation, monthly fees charged Subscribers for Cable Services including Basic Service, any expanded tiers of Cable Service, optional Premium Services; installation, disconnection, reconnection and change-in-service fees, Leased Access Channel fees, all Cable Service lease payments from the Cable System, late fees and administrative fees, payments or other consideration received by the Grantee from programmers for carriage of programming on the Cable System and accounted for as revenue under GAAP, revenues from converters or other Cable System equipment, advertising sales revenues, the fair market value of consideration received by the Grantee for use of the Cable System to provide Cable Service and accounted for as revenue under GAAP, revenues from program guides, additional outlet fees, Franchise Fees, revenue from interactive services to the extent they are considered Cable Services under federal law, revenue from the sale or carriage of other Cable Services, and revenues from home shopping and other revenue-sharing arrangements.  Gross Revenues shall include revenue received by Grantee or any other entity where necessary to prevent evasion or avoidance of Grantee’s obligation under this Franchise to pay the Franchise Fees.  Gross Revenues shall not include (i) to the extent consistent with GAAP, Bad Debt, provided, however, that all or part of any such Bad Debt that is written off but subsequently collected shall be included in Gross Revenues in the period collected; (ii) the Capital Contribution specified in subsection 9.1; (iii) any taxes on services furnished by the Grantee which are imposed directly on any Subscriber or user by the State, City or other governmental unit and which are collected by the Grantee on behalf of said governmental unit.  The Franchise Fee is not such a tax.

The parties intend for the definition of Gross Revenues to be as inclusive as possible consistent with existing applicable law. If there is a change in federal law subsequent to the effective date of this Franchise, such change shall not impact this Gross Revenues definition except as expressly provided hereinafter unless the change specifically preempts the affected portion of the definition above.

“Headend” or “Hub”

means any Facility for signal reception and dissemination on a System, including cable, antennas, wires, satellite dishes, monitors, switchers, modulators, processors for Broadcast Signals or other signals, equipment for the interconnection of the System with adjacent Systems and interconnection of any networks which are part of the System, and all other related equipment and Facilities.

“Institutional Network” or “I-Net”

means that part of the System facilities or capacity designed for Non-Commercial use by non-residential Subscribers including communications to, from and among government agencies, schools, libraries and other public agencies.

“Leased Access Channel”  

means any Channel or portion of a Channel commercially available for programming in accordance with Section 612 of the Cable Act.

“Non-Commercial”

means, in the context of Access Channels, that particular products and services are not promoted or sold.  This term shall not be interpreted to prohibit an Access Channel operator or programmer from soliciting and receiving financial support to produce and transmit video programming on an Access Channel, or from acknowledging a contribution, in the manner of the Corporation for Public Broadcasting.  In the context of an Institutional Network, Non-Commercial shall mean private network communications from and among government agencies, schools, libraries and other public agencies and excludes any other actions, such as the leasing or reselling Institutional Network capacity to a third party for any purpose whatsoever.

“Normal Business Hours”

means those hours during which most similar businesses in the community are open to serve customers.  

“Normal Operating Conditions”
means those service conditions which are within the control of the Grantee.  Those conditions which are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions.  Those conditions which are ordinarily within the control of the Grantee include, but are not limited to, special promotions, rate increases, and maintenance or upgrade of the System.

“Pay Service” or “Premium Service”  

means Video Programming or other programming service choices (such as movie channels or pay-per-view programs) offered to Subscribers on a per-channel, per-program or per-event basis.

“Person”  

means any natural person, sole proprietorship, partnership, joint venture, association, or limited liability entity or corporation, or any other form of entity or organization.

“RCC”

Rainier Communications Commission, established as an interlocal governmental cooperative, pursuant to the Interlocal Cooperation Act, RCW 39.34, et. seq., and the general laws of the State of Washington.

“RMC”

means the educational and governmental Access Center known as the Rainier Media Center which is operated by the RCC or its lawful successor.

“Rights-of-Way”
means land acquired or dedicated for public streets or roads, highways, avenues, lanes, alleys, bridges, sidewalks, easements and similar public property located within the Franchise area.

“School”

means any accredited educational institution including, for example, primary and secondary schools (K-12), colleges and universities and excluding home schools and residential facilities.

“Service Interruption”

means the loss of picture or sound on one or more cable channels.

“State”

means the State of Washington.

“Street”

means Rights-of-Way.

“Subscriber”  

means any Person who lawfully receives, Cable Services provided by Grantee by means of the System with Grantee’s express permission.

“System” or “Cable System”

means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves Subscribers without using any public right-of-way; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the federal Communications Act (47 U.S.C. § 201 et seq.), except that such facility shall be considered a Cable System (other than for purposes of Section 621(c) (47 U.S.C. § 541(c)) to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services; (4) an open video system that complies with federal statutes; or (5) any facilities of any electric utility used solely for operating its electric utility systems.  When used herein, the term “Cable System” or “System” shall mean Grantee’s Cable System in the Franchise Area.  

“Tier”  

means a category of Cable Services provided by the Grantee for which a separate rate is charged.

“Upstream Channel”  

means a Channel capable of carrying a transmission to the Headend from remote points on the System.

“Video Programming”  

means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.

SECTION 2.  GRANT OF FRANCHISE

2.1        Grant

        (A)        Grantor hereby grants to Grantee a nonexclusive and revocable authorization to make reasonable and lawful use of the Streets within the Franchise Area to construct, operate, maintain, reconstruct and upgrade a System for the purpose of providing Cable Services, subject to the terms and conditions set forth in this Franchise and applicable law.  This Franchise shall constitute both a right and an obligation to provide the Cable Services required by, and to fulfill the obligations set forth in, the provisions of this Franchise.

        (B)         The Grantee, through this Franchise, is granted the right to operate its System using the Grantor's Rights-of-Way within the Franchise Area in compliance with all lawfully enacted applicable Grantor construction codes and regulations.  Nothing in this Franchise shall be deemed to waive the requirements of the other codes and ordinances of generally applicability lawfully enacted, or hereafter lawfully enacted, by the Grantor to the extent that the provisions of the codes and ordinances do not have the effect of materially limiting the benefits or materially expanding the obligations of the Grantee that are granted by this Franchise.  The Grantee specifically agrees to comply with the provisions of City ordinances provided that in the event of a conflict between the provisions of ordinances and the Franchise, the express provisions of the Franchise shall govern.  Grantee reserves the right to challenge provisions of any ordinance, rule, regulation, resolution or other enactment of the Grantor that conflicts with its contractual rights granted herein.  

        (C)        This Franchise shall not be interpreted to prevent the Grantor from imposing additional conditions, including additional compensation conditions for use of the Rights-of-Way should Grantee provide service other than Cable Service, to the extent permitted by law.

        (D)        Grantee promises and guarantees, as a condition of exercising the privileges granted by this Franchise, that any Affiliate of the Grantee directly involved in the offering of Cable Service in the Franchise Area, or directly involved in the management or operation of the System in the Franchise Area, will also comply with the terms and conditions of this Franchise.

(E)        No rights shall pass to Grantee by implication.  

(F)        This Franchise is intended to convey limited rights and interests only as to those Rights-of-Ways in which the Grantor has an actual interest.  It is not a warranty of title or interest in any Rights-of-Way; it does not provide the Grantee with any interest in any particular location within the Rights-of-Way; and it does not confer rights other than as expressly provided in the grant hereof.

2.2        Use of Rights-of-Way  
        (A)        Subject to Grantor's supervision and control, Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the Rights-of-Way within the Franchise Area, such wires, cables (both coaxial and fiber optic), conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of a System for the provision of Cable Services within the Franchise Area.

        (B)        Grantee must follow Grantor-established requirements including all Grantor codes, ordinances and other regulations regarding placement of System facilities in Rights-of-Way, including the specific location of facilities in the Rights-of-Way, and must in any event install System facilities in a manner that minimizes interference with the use of the Rights-of-Way by others, including others that may be installing communications facilities.  The Grantor may require that System facilities be installed at a particular time, at a specific place or in a particular manner as a condition of access to a particular Right-of-Way; may deny access if Grantee is not willing to comply with Grantor's requirements; and may remove, or require removal of, any facility that is not installed in compliance with the requirements established by Grantor, or which is installed without prior Grantor approval of the time, place or manner of installation and charge Grantee for all the costs associated with removal; and may require Grantee to cooperate with others to minimize adverse impacts on the Rights-of-Way through joint trenching and other arrangements.  Grantee shall assume its costs associated with any requirement of Grantor in the exercise of its police powers, to move its System located in the Right-of-Way.  

2.3        Duration

The term of this Franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be ten (10) years from the effective date of this Franchise, unless terminated sooner as hereinafter provided.

2.4        Effective Date

        (A)        This Franchise and the rights, privileges, and authority granted hereunder and the contractual relationship established hereby shall take effect and be in force from and after the effective date of this Franchise as specified in this Section.

        (B)        Within ninety (90) days after the effective date of the Ordinance granting this Franchise, Grantee shall signify its acceptance of this Franchise by executing a written acceptance of this Franchise.  This franchise is void unless accepted in writing by Grantee within this timeframe.  

        (C)        The effective date of this Franchise shall be the date on which it is accepted in writing by Grantee.

        (D)        The grant of this Franchise shall have no effect on the Grantee's duty under the prior franchise or any ordinance in effect prior to the effective date of this Agreement to indemnify or insure the Grantor against acts and omissions occurring during the period that the prior franchise was in effect, nor shall it have any affect upon liability to pay all Franchise Fees which were due and owed under prior franchises and ordinances.  

2.5        Franchise Nonexclusive

This Franchise shall be nonexclusive, and subject to all prior rights, interests, easements or licenses granted by Grantor or its predecessors to any Person to use any property, Rights-of-Way, easement, right, interest or license for any purpose whatsoever, including the right of Grantor to use same for any purpose it deems fit, including the same or similar purposes allowed Grantee hereunder.  Grantor may at any time grant authorization to use the Rights-of-Way for any purpose not incompatible with Grantee's authority under this Franchise and for such additional Franchises for Systems as Grantor deems appropriate.

2.6        Grant of Other Franchises

In the event Grantor enters into a franchise, permit, license, authorization or other agreement of any kind with any other Person or entity other than the Grantee, including itself, to enter into the Grantor's Streets or Rights-of-Way for the purpose of constructing or operating a System or providing Cable Service to any part of the Franchise Area in which the Grantee is providing Cable Service under the terms and conditions of this Franchise or is required to extend Cable Service under the provisions of this Franchise, the terms and conditions thereof,  taken as a whole, shall be neither more favorable nor less burdensome to such Person or entity than those contained herein in order that one Cable Operator not be granted an unfair competitive advantage over another.

2.7        Familiarity with Franchise

The Grantee acknowledges and warrants by acceptance of the rights, privileges and agreement granted herein, that it has carefully read and fully comprehends the terms and conditions of this Franchise and is willing to and does accept all reasonable risks of the meaning of the provisions, terms and conditions herein.  The Grantee further acknowledges and states that it has fully studied and considered the requirements and provisions of this Franchise, and finds that the same are commercially practicable at this time and consistent with all local, state and federal laws and regulations currently in effect, including the Cable Act.

2.8        Effect of Acceptance

By accepting the Franchise, the Grantee:  (1) acknowledges and accepts the Grantor's legal right to issue and enforce the Franchise; (2) agrees that it will not oppose the Grantor's lawful intervention in any legal or regulatory proceeding affecting the System; (3) accepts and agrees to comply with each and every provision of this Franchise; and (4) agrees that the Franchise was granted pursuant to processes and procedures consistent with applicable law, and that it will not raise any claim to the contrary.

2.9        Police Powers

Grantee's rights hereunder are subject to the police powers of Grantor to adopt and enforce ordinances necessary to the safety, health and welfare of the public, and Grantee agrees to comply with all applicable laws, ordinances and regulations enacted pursuant to the police powers of Grantor, or hereafter enacted in accordance therewith, by Grantor or any other legally-constituted governmental unit having lawful jurisdiction over the subject matter hereof.  Any conflict between the provisions of this Franchise and any other present or future lawful exercise of Grantor's police powers shall be resolved in favor of the latter.

2.10        Franchise Area

Grantee shall provide Cable Service, as authorized under this Franchise, within the Franchise Area.

SECTION 3.  FRANCHISE FEE AND FINANCIAL CONTROLS

3.1        Franchise Fee

As compensation for the use of Grantor's Rights-of-Way or Streets, Grantee shall pay as a Franchise Fee to Grantor, throughout the duration of this Franchise, an amount equal to five (5%) percent of Grantee's Gross Revenues.  Accrual of such Franchise Fee shall commence as of the effective date of this Franchise.

3.2        Payments

Grantee's Franchise Fee payments to Grantor shall be computed quarterly for the preceding calendar quarter ending September 30, December 31, March 31 and June 30.  Each quarterly payment shall be due and payable no later than forty-five (45) days after said dates.

3.3        Acceptance of Payment

No acceptance of any payment shall be construed as an accord by Grantor that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim Grantor may have for further or additional sums payable or for the performance of any other obligation of Grantee.

3.4        Quarterly Franchise Fee Reports

Each payment shall be accompanied by a written report to Grantor, verified by an officer of Grantee, containing an accurate statement in summarized form, as well as in detail, of Grantee's Gross Revenues and the computation of the payment amount.  Such reports shall detail all Gross Revenues of the System and shall be drafted in accordance with generally accepted accounting principles.  

3.5        Audits

On an annual basis, upon thirty (30) days' prior written notice, Grantor shall have the right to conduct an independent audit of Grantee's records related to this Franchise and to recompute any amounts determined to be payable under this Franchise.  Provided Grantee cooperates in making all relevant records available upon request, Grantor will in good faith attempt to complete each audit within six (6) months, and the audit period shall not be any greater than the previous three (3) years, unless Grantor has information relating to previous years beyond the three (3) which raises doubt as to the accuracy of payments made under this or previous Franchises.  Any additional amounts due to the Grantor as a result of the audit shall be paid within sixty (60) days following written notice to the Grantee by the Grantor, which notice shall include a copy of the audit findings.  If the audit shows that Franchise Fees have been underpaid, by three percent (3%) in a calendar year or more, Grantee shall pay the total cost of the audit.
   
3.6        Financial Records
Grantee agrees to meet with a representative of the Grantor upon request to review Grantee's method of record-keeping, financial reporting, the computing of Franchise Fee obligations and other procedures, the understanding of which the Grantor deems necessary for reviewing reports and records that are relevant to the enforcement of this Franchise.

3.7        Interest on Late Payments

In the event any payment is not received within forty-five (45) days from the end of the calendar quarter, Grantee shall pay, in addition to the payment or sum due, interest from the due date at an interest rate of 1%, beginning on the forty-sixth (46th) day after the end of the calendar quarter and continuing every day thereafter until the seventy-five (75th) day after the end of the calendar quarter, or until payment is made, whichever is earlier.  If any payment is not received within seventy-five (75) days after the end of the calendar quarter, Grantee shall be assessed a late fee in the additional amount of two hundred dollars ($200.00) per day, beginning on the seventy-sixth (76th) day after the end of the calendar quarter and continuing every day thereafter until paid.

3.8        Maximum Franchise Fee

The parties acknowledge that, at present, applicable federal law limits Grantor to collection of a Franchise Fee of five percent (5%) of Gross Revenues.  In the event that at any time during the duration of this Franchise Grantor is authorized to collect an amount in excess of five percent (5%) of Gross Revenues in any twelve (12) month period, it may do so with sixty (60) days written notice to Grantee, provided that all providers of Cable Service in the Franchise Area over which the Grantor has jurisdiction are treated in an equivalent manner.

3.9        Additional Commitments Not Franchise Fees  

No term or condition in this Franchise shall in any way modify or affect Grantee's obligation to pay Franchise Fees.  Although the total sum of Franchise Fee payments and additional commitments set forth elsewhere in this Franchise may total more than five percent (5%) of Grantee's Gross Revenues in any 12-month period, Grantee agrees that the additional commitments herein are not Franchise Fees, nor are they to be offset or credited against any Franchise Fee payments due to Grantor, nor do they represent an increase in Franchise Fees to be passed through to Subscribers pursuant to any federal law. Access Fees are not to be offset against and are not Franchise Fees.

3.10        Payment on Termination

If this Franchise terminates for any reason, the Grantee shall file with the Grantor within ninety (90) calendar days of the date of the termination, a financial statement, certified by an independent certified public accountant, showing the Gross Revenues received by the Grantee since the end of the previous fiscal year.  Within sixty (60) days of the filing of the certified statement with the Grantor, Grantee shall pay any unpaid amounts as indicated.  If the Grantee fails to satisfy its remaining financial obligations as required in this Franchise, the Grantor may do so by utilizing the funds available in security provided by the Grantee.

3.11        Duty to Cooperate  

Grantor agrees to exercise prompt and diligent efforts to verify whether billing addresses are in or outside the Franchise Area upon the written request of Grantee.  

3.12        Franchise Fee and Taxes on Cable Modem Services

(A)        Grantor and Grantee agree that revenues derived by Grantee for the provision of Cable Modem Service to customers within the Franchise Area is not presently subject to Grantor's five percent franchise fee due to a decision by the Ninth Circuit Court of Appeals in AT&T v. City of Portland, 216 F3d 871 (9th CIR 2000) and a Declaratory Ruling and Notice of Proposed Rulemaking released March 15, 2002 by the Federal Communications Commission that Cable Modem Service is an information service and not a Cable Service.  Grantor and Grantee acknowledge that during the course of either this Franchise, or any extension thereto, that it is likely there will be clarifications or changes in federal statutory, regulatory or case law that will further delineate whether Grantor has a right to collect a five percent franchise fee on all or any portion of the gross revenues derived by Grantee for the provision of Cable Modem Service.  Grantor and Grantee acknowledge that it is entirely possible that revenues derived from the provision of Cable Modem Service may become a permissible item to include within the definition of gross revenues for the purpose of determining the franchise fee.

(B)        In the event that Grantor concludes that a development in federal statutory, regulatory or case law permits Grantor to lawfully collect a five percent franchise fee on any or all of the revenues derived by Grantee for the provision of Cable Modem Services to customers within the Franchise Area, Grantor shall notify Grantee in writing of such a determination, and Grantor hereby reserves its right to collect such franchise fee, subject to applicable law.  This Franchise, however, shall not be read as a concession by Grantee that Grantor may in future lawfully collect franchise fees on Cable Modem Service.  If in the event Grantor seeks to collect Franchise Fees in accordance with applicable law, Grantee agrees to conduct good faith discussions regarding any issues of concern, as may be necessary.  

(C)        Grantor and Grantee reach no agreement of any kind regarding whether Cable Modem Service is subject to Grantor's taxing authority.

SECTION 4.  ADMINISTRATION AND REGULATION

4.1        General Provisions

        (A)        Grantor shall be vested with the power and right to administer and enforce the requirements of this Franchise and the regulations and requirements of applicable law, including the Cable Act, or to delegate administrative responsibilities to the extent permitted under State and local law, to any agent including, but not limited to, the RCC in its sole discretion.
         
        (B)        Grantee shall comply with all applicable federal and state laws and regulations, including regulations of any administrative agency thereof, as well as all Grantor ordinances, resolutions, rules and regulations heretofore or hereafter adopted or established during the term of the Franchise.  Nothing in this Franchise shall limit or expand the Grantor's right of eminent domain under State law.
         
        (C)        The Grantee and Grantor shall be entitled to all rights and be bound by all changes in local, State and federal law that occur subsequent to the effective date of this Franchise.  The Grantee and the Grantor acknowledge that their rights and obligations under this Franchise are explicitly subject to all such changes.  However, should such changes in law substantially reduce Franchise Fees, the I-Net, or Access support of this Franchise, the Grantor and Grantee agree to enter into good faith negotiations for a six (6) month period, at the request of either party, to resolve the issues.  If resolution is not reached within the six (6) month period, and the period has not been extended by mutual agreement, the term of this Franchise shall be reduced to three (3) years, and the parties shall commence the renewal process in accordance with the Cable Act.

4.2        Rates and Charges

All Grantee rates and charges related to or regarding Cable Services shall be subject to regulation by Grantor to the full extent authorized by applicable federal, State and local laws.

4.3        Rate Discrimination

All Grantee rates and charges shall be published (in the form of a publicly-available rate card), made available to the public, and shall be non-discriminatory as to all Persons of similar classes, under similar circumstances and conditions.  Grantee shall apply its rates in accordance with governing law. Grantee shall permit Subscribers to make any in-residence connections the Subscriber chooses without additional charge and without penalizing the Subscriber therefor.  However, if any in-home connection requires service from Grantee due to signal quality, signal leakage or other factors, caused by improper installation of such in-home wiring or faulty materials of such in-home wiring, the Subscriber may be charged appropriate service charges by Grantee.  Nothing herein shall be construed to prohibit:

        (A)        The temporary reduction or waiving of rates or charges in conjunction with valid promotional campaigns;

        (B)        The offering of reasonable discounts to similarly situated Persons;

        (C)        The offering of rate discounts for either Cable Service generally, or data transmission to governmental agencies or educational institutions; or

        (D)        The offering of bulk discounts for Multiple Dwelling Units.

4.4        Filing of Rates and Charges

        (A)        Throughout the term of this Franchise, Grantee shall maintain on file with Grantor a complete schedule of applicable rates and charges for Cable Services provided under this Franchise.  Nothing in this subsection shall be construed to require Grantee to file rates and charges under temporary reductions or waivers of rates and charges in conjunction with promotional campaigns.  As used in this subsection, no rate or charge shall be considered temporary if Subscribers have the ability over a period greater than six (6) consecutive months (or such other period as may be approved by Grantor) to purchase Cable Services at such rate or charge.

        (B)        Upon request, Grantee shall provide a complete schedule of current rates and charges for any and all Leased Access Channels, or portions of such Channels, provided by Grantee. The schedule shall include a description of the price, terms and conditions established by Grantee for Leased Access Channels.

4.5        Late Fees

If the Grantee assesses any kind of penalty fee for late payment, such fee shall comply with applicable law.

4.6        Time Limits Strictly Construed

Whenever this Franchise sets forth a time for any act to be performed by Grantee, such time shall be deemed to be of the essence, and any failure of Grantee to perform within the allotted time may be considered a material breach of this Franchise.  However, in the event that Grantee is prevented or delayed in the performance of any of its obligations under this Franchise by reason beyond the reasonable control of Grantee, Grantee shall have a reasonable time, under the circumstances, to perform the affected obligation under this Franchise or to procure a substitute for such obligation that is satisfactory to Grantor.

4.7        Performance Evaluation

        (A)        Upon request of Grantor, special evaluation sessions may be held at any time during the term of this Franchise.

        (B)        All evaluation sessions shall be open to the public and announced at least one week in advance in a newspaper of general circulation in the Franchise Area.  Grantor may notify Subscribers of evaluation sessions by announcement on its Access Channel for five (5) consecutive days preceding each session.

        (C)        Topics which may be discussed at any evaluation session may include, but are not limited to, Cable Service rate structures; Franchise Fees; liquidated damages; free or discounted Cable Services; application of new technologies; system performance; Cable Services provided; programming offered; customer complaints; privacy; amendments to this Franchise; judicial and FCC rulings; line extension policies; and Grantor's or Grantee's rules; provided that nothing in this subsection shall be construed as requiring the renegotiation of this Franchise.

        (D)        During evaluations under this Section, Grantee shall fully cooperate with Grantor and shall provide such information and documents in accordance with Section 7, as Grantor may require to perform the evaluation.

SECTION 5.  FINANCIAL AND INSURANCE REQUIREMENTS

5.1        Indemnification  

        (A)        General Indemnification.  Grantee shall indemnify, defend and hold Grantor, its officers, officials, boards, commissions, authorized agents and employees, harmless from any action or claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and attorneys’ fees and expenses, arising from any casualty or accident to Person or property, including, without limitation, copyright infringement, defamation, and all other damages in any way arising out of, or by reason of, any construction, excavation, operation, maintenance, reconstruction, or any other act done under this Franchise, by or for Grantee, its  agents, or its employees, or by reason of any neglect or omission of Grantee its  agents or its employees.  Grantee shall consult and cooperate with the Grantor while conducting its defense of the Grantor.    

        (B)        Indemnification for Relocation.  Grantee shall indemnify Grantor for any damages, claims, additional costs or expenses assessed against, or payable by, Grantor related to, arising out of, or resulting, directly or indirectly, from Grantee's failure to remove, adjust or relocate any of its facilities in the Streets in a timely manner in accordance with any relocation required by Grantor.

        (C)        Additional Circumstances.  Grantee shall also indemnify, defend and hold Grantor harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and attorneys' fees or expenses in any way arising out of:

                (1)        The grant of this Franchise;  

        (2)        Any failure by Grantee to secure consents from the owners, authorized distributors or licensees/licensors of programs to be delivered by the System.

        (D)        Procedures and Defense.  If a claim or action arises, Grantor or any other indemnified party shall tender the defense of the claim to Grantee, which defense shall be at Grantee’s expense.  Grantor may participate in the defense of a claim and, in any event, Grantee may not agree to any settlement of claims affecting Grantor without Grantor's written approval.

        (E)        Non-waiver.  The fact that Grantee carries out any activities under this Franchise through independent contractors shall not constitute an avoidance of or defense to Grantee's duty of defense and indemnification under this Section.  

(F)        Duty to Give Notice and Tender Defense.  The Grantor shall give the Grantee timely written notice of any claim or of the commencement of any action, suit or other proceeding covered by the indemnity in this Section.  In the event any such claim arises, the Grantor or any other indemnified party shall tender the defense thereof to the Grantee and the Grantee shall have the obligation and duty to defend any claims arising thereunder, and the Grantor shall cooperate fully therein.

(G)        If  separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between the Grantor and the counsel selected by Grantee to represent, the Grantor, Grantee shall pay expenses incurred by the Grantor in defending itself with regard to any action, suit or proceeding indemnified by Grantee.  The Grantor’s expenses shall include all out-of-pocket expenses, such as consultants’ fees, and shall also include the reasonable value of any services rendered by the Grantor attorney or his/her assistants or any employees of the Grantor or its agents but shall not include outside attorneys’ fees for services that are unnecessarily duplicative of services provided the Grantor by Grantee.

5.2        Insurance Requirements

        (A)        General Requirement.  Grantee must have adequate insurance during the entire term of this Franchise to protect the Grantor against claims for injuries to Persons or damages to property which in any way relate to, arise from or are connected with this Franchise, or involve Grantee, its agents, representatives, contractors, subcontractors and their employees.

        (B)        Initial Insurance Limits.  Grantee must keep insurance in effect in accordance with the minimum insurance limits herein set forth by the Grantor from time to time.  The Grantee shall obtain policies for the following initial minimum insurance limits:

(1)        Commercial General Liability:  Five million dollars ($5,000,000) aggregate limit per occurrence for bodily injury, personal injury and property damage;

(2)        Automobile Liability:  Three million dollars ($3,000,000) combined single limit per accident for bodily injury and property damage; and

(3)        Employer's Liability:  One million dollars ($1,000,000).

        (C)        Endorsements.

(1)        All policies shall contain, or shall be endorsed so that:

                        (a)        The Grantor shall be designated as additional insured;

(b)        The Grantee's insurance coverage shall be primary insurance with respect to the Grantor, its officers, officials, boards, commissions, employees and duly authorized agents.  Any insurance or self-insurance maintained by the Grantor, its officers, officials, boards, commissions, employees and agents shall be in excess of the Grantee's insurance and shall not contribute to it; and

(c)        Grantee's insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability.

(2)        The insurance shall provide that the insurance shall not be cancelled or materially altered so as to be out of compliance with the requirements of this Section without thirty (30) days' written notice first being given to Grantor.  If the insurance is cancelled or materially altered so as to be out of compliance with the requirements of this Section within the term of this Franchise, Grantee shall provide a replacement policy.  Grantee agrees to maintain continuous uninterrupted insurance coverage, in the amounts required, for the duration of this Franchise.

        (D)        Acceptability of Insurers.  The insurance obtained by Grantee shall be placed with insurers with a Best's rating of no less than “A”.

        (E)        Verification of Coverage.  The Grantee shall furnish the Grantor with certificates of insurance or a copy of the page of the policy reflecting blanket additional insured status.  The certificates for each insurance policy are to be signed by a Person authorized by that insurer to bind coverage on its behalf.  The certificates for each insurance policy are to be on standard forms or such forms as are consistent with standard industry practices, and are to be received and approved by the Grantor prior to the commencement of activities associated with this Franchise.  The Grantee hereby warrants that its insurance policies satisfy the requirements of this Franchise.

5.3        Security  

Upon the delivery of the acceptance of this Franchise, Grantee shall provide a performance bond or other security in accordance with Grantor’s applicable ordinances, rules and regulations to ensure the faithful performance of its responsibilities under this Franchise and applicable law, including, by way of example and not limitation, its obligations to relocate and remove its facilities and to restore Grantor Rights-of-Way and other property.  

SECTION 6.  CUSTOMER SERVICE

6.1        Subscriber Contracts

Grantee shall not enter into a contract with any Subscriber that is in any way inconsistent with the terms of this Franchise.

6.2        Subscriber Privacy

Grantee will comply with privacy rights of Subscribers in accordance with applicable federal, State and local laws.

6.3        Customer Service Center

Throughout the Franchise term, the Grantee must maintain, at a minimum, one (1) customer service center conveniently located within five (5) miles of the Franchise Area that will be open during Normal Business Hours, to provide Subscribers the opportunity to pick up and return Subscriber equipment and to make bill payments and complaints.  

6.4        Customer Service Agreement and Manual

        (A)        Grantee shall provide to Subscribers an accurate, comprehensive service agreement (currently called the work order) and customer installation packet for use in establishing Subscriber service.  This material shall, at a minimum, contain the following:

(1)        Grantee's procedure for investigation and resolution of Subscriber service complaints;

(2)        Services to be provided and rates for such services;

(3)        Billing procedures;

(4)        Service termination procedure;

(5)        A description of the manner that will be used to provide notice of changes in rates, service or service terms and conditions;

(6)        A complete statement of the Subscriber's right to privacy;

(7)        Converter and cable modem equipment policy;

(8)        The name, address and phone number of the Person identified by the Grantor as responsible for handling cable questions and complaints for the Grantor.  This information shall be prominently displayed in the installation packet.

        (B)        A copy of the installation packet shall be provided to each Subscriber at the time of initial installation and any reconnection (excluding reconnections to the same Subscriber within twelve (12) months), and at any time the packet is requested by the Subscriber.  Grantee shall make reasonable efforts to advise customers of any material changes in cable operation policies.
         

SECTION 7.  REPORTS AND RECORDS

7.1        Open Records

Grantor shall have access to, and the right to inspect, any books and records of Grantee, its parent corporations and Affiliated Entities, necessary for the enforcement of the terms of this Franchise.  Grantee shall not deny Grantor access to any of Grantee's records on the basis that Grantee's records are under the control of any parent corporation, Affiliated Entity or a third party.  Grantor may, in writing, request copies of any such records or books, and Grantee shall provide such copies within thirty (30) days of the transmittal of such request.  One copy of all reports and records required under this or any other Section shall be furnished to Grantor at the sole expense of Grantee.  If the requested books and records are too voluminous, or for security reasons cannot be copied or removed, then Grantee may request, in writing within ten (10) days, that Grantor inspect them at Grantee's local offices.  If any books or records of Grantee are not kept in a local office and not made available in copies to Grantor upon written request as set forth above, and if Grantor determines that an examination of such records is necessary for the enforcement of this Franchise, then all reasonable travel and maintenance expenses incurred in making such examination shall be paid by Grantee.

7.2        Confidentiality

Grantor agrees to keep confidential any proprietary or confidential books or records to the extent permitted by law.  Grantee shall be responsible for clearly and conspicuously identifying the work confidential or proprietary, and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under State or federal law.  If Grantor receives a demand from any Person for disclosure of any information designated by Grantee as confidential, Grantor shall, so far as consistent with applicable law, advise Grantee and provide Grantee with a copy of any written request by the party demanding access to such information within a reasonable time.  If Grantee believes that the disclosure of such documents by Grantor would interfere with Grantee’s rights under federal or state law, Grantee shall institute an action in the Pierce County Superior Court to prevent the disclosure by Grantor of such documents.  Grantee shall join the Person requesting the documents to such an action. Grantee shall defend, indemnify and hold Grantor harmless from any claim or judgment including, but not limited to, any penalties or costs under RCW 42.17.

7.3        Records Required

                Grantee shall at all times maintain:

        (A)        A full and complete set of plans, records and “as built” maps showing the exact location of all System equipment installed or in use in the Franchise Area, which is generated in Grantee’s normal course of business;

        (B)        A copy of all FCC filings on behalf of Grantee, its parent corporations or Affiliates which relate to the operation of the System in the Franchise Area;
         
        (C)        A list of Grantee's Cable Services, rates and Channel line-ups;

        (D)        A statistical compilation of Subscriber complaints, actions taken and resolution, and a log of service calls.

7.4        Copies of Federal and State Reports

Upon written request, Grantee shall submit to Grantor copies of any pleading, applications, notifications, communications and documents of any kind, submitted by Grantee or its Affiliates to any federal, State or local courts, regulatory agencies and other government bodies if such documents directly relate to the operations of Grantee's System within the Franchise Area.  Grantee shall submit such documents to Grantor no later than thirty (30) days after receipt of Grantor’s request.  Grantee shall not claim confidential, privileged or proprietary rights to such documents unless under federal, State, or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or State agency.  With respect to all other reports, documents and notifications provided to any federal, State or local regulatory agency as a routine matter in the due course of operating Grantee's System within the Franchise Area, Grantee shall make such documents available to Grantor upon Grantor's written request.

7.5        Complaint File and Reports

Grantee shall keep an accurate and comprehensive file of any and all complaints regarding the System, and Grantee's actions in response to those complaints, in a manner consistent with the privacy rights of Subscribers.  Those files shall remain open to Grantor during normal business hours, and shall be retained for one year.  Upon request, Grantee shall provide a report to the Grantor which can at Grantor’s option include the following information:

        (A)        Nature and type of customer complaints;

        (B)        Number, duration, general location and customer impact of unplanned service interruptions;

        (C)        Any significant construction activities which affect the quality or otherwise enhance the service of the System;

        (D)        Average response time for service calls;

        (E)        New areas constructed and available for Cable Service; and

        (F)        Video programming changes (additions/deletions); and

        (G)        Such other information as reasonably requested by Grantor.

7.6        Inspection of Facilities

Grantor may inspect any of Grantee's Cable System facilities and equipment in the Rights-of-Way at any reasonable time during business hours upon at least forty-eight (48) hours notice, or, in case of emergency, upon demand without prior notice.

7.7        False Statements

Any intentional false or misleading statement or representation in any report required by this Franchise shall be a material breach of this Franchise and may subject Grantee to all remedies, legal or equitable, which are available to Grantor under this Franchise or otherwise.

SECTION 8.  PROGRAMMING AND CHANNEL CAPACITY

8.1        Grantee Compliance

Grantee will provide the broad categories of programming and Channel capacity required in this Franchise, and in all applicable federal, State or local laws, statutes, regulations or standards.

8.2        Broad Programming Categories

Grantee shall provide or enable the provision of at least the following initial broad categories of programming to the extent such categories are reasonably available:

        (A)        Educational programming;
         
        (B)        Sports programming;

        (C)        General entertainment programming;

        (D)        Children’s programming;

        (E)        Information/news programming;

        (F)        National and local government programming.

8.3        Obscenity

Grantee or Grantor shall not transmit, or permit to be transmitted, over any Channel subject to its editorial control any programming which is obscene.

8.4        Parental Control Device

Upon request by any Subscriber, Grantee shall make available a parental control or lockout device traps or filters to enable a Subscriber to control access to both the audio and video portions of any or all Channels.  Grantee shall inform its Subscribers of the availability of the lockout device at the time of their initial subscription and periodically thereafter.

8.5        Complementary Cable Service

        (A)        The Grantee, upon request, shall provide without charge, a Standard Installation and one outlet of Basic and Expanded Basic Service to those administrative buildings owned and occupied or leased and occupied by the Grantor, fire station(s), police station(s), libraries and K-12 public school(s) that are currently served or are within 125 feet aerial or 60 feet underground of its Cable System. In the case of leased facilities, recipient of service is responsible for securing approval for appropriate right of entry suitable to the Franchisee at its sole discretion.  The Cable Service provided shall not be distributed beyond the originally installed outlet without authorization from Grantee.  The Cable Service provided shall not be used for commercial purposes, and such outlets shall not be located in areas open to the public. The Grantor shall take reasonable precautions to prevent any use of the Grantee’s Cable System in any manner that results in the inappropriate use thereof or any loss or damage to the Cable System.  The Grantor shall hold the Grantee harmless from any and all liability or claims arising out of the provision and use of Cable Service required by this Section.  The Grantee shall not be required to provide an outlet to such buildings where a non-Standard Installation is required, unless the Grantor or building owner/occupant agrees to pay the incremental cost of any necessary Cable System extension and/or non-Standard Installation.  If additional outlets of Cable Service are provided to such buildings, the building owner/occupant shall pay the usual installation and service fees associated therewith.  In the event a competing cable system is providing complementary cable video service, there is no obligation for Grantee to provide like services.  Grantor recognizes that Grantee currently provides complimentary service to a majority of the Grantor’s administrative buildings, and therefore agrees to make all future requests for complimentary service from other competing cable providers until such time as parity is achieved.

(B)        Grantee has established a voluntary initiative to provide Cable Internet Service to all State-accredited K-12 public and private schools and public libraries that are passed within 125 feet aerial of the Cable System at no cost to the Grantor or institutions.  Grantee intends to provide each of these schools and libraries with one outlet of unlimited Internet access, including the necessary cable modem.  The Grantor encourages and supports Grantee’s efforts in this area.

8.6        New Developments

If there is a new technology which in Grantor’s opinion would enhance substantially the quality or quantity of programming available to Subscribers on the System, Grantee shall, at the request of the Grantor, investigate the feasibility of implementing said technology and report to Grantor the results of such investigation.

SECTION 9.  EDUCATIONAL AND GOVERNMENTAL ACCESS

9.1        Capital Contribution

Effective sixty (60) days after the acceptance of this Franchise and continuing during the term of this Franchise, Grantee shall pay to Grantor a Capital Contribution for Educational Access and Government Access capital expenditures in the amount of fifty cents ($.50) per Subscriber per month.  If Grantor chooses to construct an Institutional Network, then the Capital Fee shall be raised to one dollar ($1.00) per Subscriber per month.  Any increase in the Capital Fee shall be payable by Grantee to Grantor after sixty (60) days notice to Subscribers of such increase; and (b) the collection of the Capital Fee from such Subscribers.  Grantee shall make Capital Contribution payments quarterly, no later than thirty (30) days following the end of the quarter.  The Grantor agrees that 47 C.F.R. §76.922 permits Grantee to add the cost of the Capital Contribution to the price of Cable Services and to collect the Capital Contribution from Subscribers.  In addition, as permitted in 47 C.F.R. §76.985, all amounts paid as the Capital Contribution may be separately stated on Subscriber’s bills as a Government Access capital equipment fee.  

9.2        Access Reporting

Upon Grantee’s written request, the Grantor shall submit a report annually on the use of Access Channels and Capital Contribution.  The Grantor shall submit a report to Grantee within one hundred twenty (120) days of a written request.  Grantor may review the records of the City regarding the use of the Capital Contribution.

9.3        Management and Control of Access Channels

        (A)        Grantor may authorize Designated Access Providers to control, operate, and manage the use of any and all Access facilities provided by Grantee under this Franchise, including, without limitation, the operation of Access Channels.  The Grantor or its designee may formulate rules for the operation of the Access Channels, consistent with this Franchise.  Nothing herein shall prohibit the Grantor from authorizing itself to be a Designated Access Provider.

        (B)        Grantee shall cooperate with Grantor and Designated Access Providers in the use of the System and Access facilities for the provision of Access Channels.  

9.4        Access Channels

(A)        Grantee shall provide at no charge commencing within one hundred eighty (180) days after acceptance of this Franchise, and continuing throughout the term of this Franchise, One (1) Channel for use by Grantor (said Channel to be capable of cablecasting both live and recorded programming only within the geographic territory of Grantor).  

(B)        Grantee shall provide immediately at no charge after acceptance of this Franchise, and continuing throughout the term of this Franchise the following:  

(1)        One (1) Channel for Government Access use, currently programmed by the RCC; and

(2)        Three (3) Channels for Educational Access programming.

        (C)        All assigned Access Channels can be used to transmit programming in any format which is technically compatible with the Cable System, including, by way of example and not limitation, video, audio only, secondary audio and/or text (character generated) messages.  Such uses must be in furtherance of Access purposes.   Each of the above five (5) Channels shall be capable of transmitting one standard analog or a minimum of one digital video signal.  Any Access Channels provided via digital or compressed video technology shall have at least the same transmission quality as is used to carry any of the commercial Channels that deliver programming on the System and shall be full motion video.  The provision of Access Channels via digital or compressed video technology will not reduce the total Access Channel requirement herein.

            (D)     Grantee agrees to facilitate the listing of Grantor’s Government Access programming on an interactive programming guide (such as TV Guide) on tiers of service in which it is available.  This requirement shall only be enforceable so long as the service is available on Grantee’s Cable System and Grantor agrees to pay for all costs associated with providing the service.  

9.5        Change In Technology

In the event Grantee makes any change in the System and related equipment and facilities or in Grantee's signal delivery technology, which directly or indirectly affects the signal quality or transmission of Access programming, Grantee shall at its own expense take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment, and full training of Access personnel to ensure that the capabilities of Access Channels are not diminished or adversely affected by such change.  For example, this provision shall apply if Basic Service on the Cable System is converted from an analog to a digital format, such that the Access Channels must also be converted to digital in order to be received by Subscribers.

9.6        Access Channels On Basic Service  

All Access Channels provided to Subscribers under this Franchise shall be included by Grantee, without limitation, as a part of Basic Service.

9.7        Access Channel Location/Relocation

Grantee will carry Grantor’s programming on the channel designated for local government programming on its regional channel line-up, currently channel 21, so that the Grantor will receive the same benefits from such carriage as other jurisdictions in western Washington.  Furthermore, Grantee will use reasonable efforts to minimize the movement of Access Channel assignments and to institute common Channel assignments for compatible Access programming, for example, assigning all Educational Access Channels programmed by higher education organizations to the same Channel number on its regional upgrade channel line-up, and agrees to change the local government access channel assignments only as is necessary to comply with federal requirements. Grantee shall provide three (3) months notice to the Grantor prior to any relocation, and shall reimburse Grantor for its costs incurred for any promoting, marketing, advertising and notice of the Channel change up to three thousand dollars ($3,000).

9.8        Return Lines

        (A)        Grantee shall, at its expense, activate within one-hundred-eighty (180) days two (2) fiber optic Return Lines, one (1) pair each, capable of two-way transmission to enable the distribution of Access programming to Subscribers on the Access Channels.  One Return Line shall run between the demarcation points identified in Exhibit II, Access Origination Points.  The other Return Line shall run between City Hall and the RMC which is Grantor’s current Designated Distributor.  


(B)        At the written request of the Grantor, Grantee shall construct and maintain up to two (2) additional fiber-optic return lines to the Designated Distributor’s facilities from new or relocated Designated Access Providers delivering Access programming to Subscribers. Any new return line construction costs shall be paid by the Grantor and be completed within six (6) months of the request.  

9.9        Technical Quality

The Grantee shall maintain Access channels at the same or better level of technical quality and reliability required by this Franchise and all other applicable laws, rules and regulations for other Channels.  The Grantee shall provide routine maintenance and shall repair and replace, if necessary, all Grantee’s transmission equipment, including fiber transmitters and receivers, channel modulators, associated cable and equipment, required to carry a quality signal to and from the Grantor's Designated Distributor’s facilities (and Designated Access Providers’ facilities) and the Grantee's facilities for the Access channels provided under this Franchise.

9.10         Payments to Grantee

(A)        After satisfactory completion of work requested by Grantor under Sections 9.8(B) for which Grantor is to reimburse the Grantee, and upon submission by Grantee, in such form as may be requested by Grantor, of a proper invoice for payment of the cost reasonably incurred and accompanied by such evidence in support thereof as may be reasonably required by Grantor, Grantor agrees to make payment for the cost reasonably incurred up to the estimated cost for the work; provided, however, that all payments shall be subject to adjustment for any amount found upon audit or otherwise to have been improperly invoiced.


(B)        All work shall be performed in a cost-effective manner to minimize the costs to Grantor.  Grantee shall permit Grantor to inspect and audit all pertinent books and records of Grantee, and Grantee shall make available for inspection and audit all pertinent books and records of any Person who has performed the work for which costs are being billed to Grantor, so that Grantor may verify the accuracy of costs being billed.  Grantee shall supply Grantor with or permit Grantor to make a copy of any books or records, and any portions thereof relating to the cost being billed for such work.


SECTION 10.  GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION

10.1        Construction

        (A)        Subject to applicable laws, regulations and ordinances of Grantor and the provisions of this Franchise, Grantee may perform all construction necessary for the operation of its System.  All construction and maintenance of any and all Grantee’s facilities within Rights-of-Way shall, regardless of who performs the construction, be and remain Grantee's
responsibility.

        (B)        Prior to beginning any construction, Grantee shall provide Grantor with a construction schedule for work in the Rights-of-Ways.

        (C)        Grantee may make excavations in Rights-of-Way for any facility needed for the maintenance or extension of Grantee's System.  Prior to doing such work, Grantee shall apply for, and obtain, appropriate permits from Grantor, and give appropriate notices to Grantor.  As a condition of any permits so issued, Grantor officials may impose such conditions and regulations as are necessary for the purpose of protecting any structures in such Rights-of-Way, proper restoration of such Rights-of-Way and structures, protection of the public and the continuity of pedestrian or vehicular traffic.  When obtaining a permit, Grantee shall inquire in writing about other construction currently in progress, planned or proposed, in order to investigate thoroughly all opportunities for joint trenching or boring.   Whenever it is possible and reasonably practicable to joint trench or share bores or cuts, Grantee shall work with other providers, licensees, permittees and franchisees so as to reduce so far as possible the number of Rights-of-Way cuts within the Franchise Area.

        (D)        In the event that emergency repairs are necessary, Grantee shall immediately notify Grantor of the need for such repairs.  Grantee may initiate such emergency repairs, and shall apply for appropriate permits within forty-eight (48) hours after discovery of the emergency.

        (E)        Repair and Restoration of Property.

(1)        The Grantee shall protect public and private property within the Rights-of-Way from damage.

(2)        If public property is disturbed or damaged, the Grantee shall restore the property to its former condition.  Public right-of-way or other Grantor property shall be restored in a manner and within a timeframe approved by the Grantor's Director of Public Works.  If restoration of public right-of-way or other property of the Grantor is not satisfactorily performed within a reasonable time, the Director of Public Works may, after prior notice to the Grantee, or without notice where the disturbance or damage may create a risk to public health or safety, or cause delay or added expense to a public project or activity, cause the repairs to be made at the Grantee's expense and recover the cost of those repairs from the Grantee.  Within forty-five (45) days of receipt of an itemized list of those costs, including the costs of labor, materials and equipment, the Grantee shall pay the Grantor.  If suit is brought by Grantor upon Grantee's failure to pay for repair or restoration, the reasonable costs and expenses of the prevailing party, will be paid by the non-prevailing party.

        (F)         Movement for Other Permittees.

At the request of any Person holding a valid permit and upon reasonable advance notice, Grantee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item.  The expense of such temporary changes must be paid by the permit holder, and Grantee may require the estimated payment in advance.

10.2        Location of Facilities

Within five (5) business days, unless otherwise specified in Grantee’s regulations, after the Grantor or any franchisee, licensee or permittee of the Grantor notifies Grantee of a proposed  Right-of-Way excavation, Grantee shall, at Grantee's expense:

        (A)        Mark on the surface all of its located underground facilities within the area of the proposed excavation;

        (B)        Notify the excavator of any unlocated underground facilities in the area of the proposed excavation; or

        (C)        Notify the excavator that Grantee does not have any underground facilities in the vicinity of the proposed excavation.

10.3        Restoration of Rights-of-Way / Grantor Owned Property

        (A)        Whenever Grantee disturbs the surface of any Rights-of-Way or Grantor owned property for any purpose, Grantee shall promptly restore the Rights-of-Way or Grantor owned property to a condition as good or better than its prior condition in Grantor’s sole determination.  When any opening is made by Grantee in a hard surface pavement in any Rights-of-Way or Grantor owned property, Grantee shall promptly refill the opening and restore the surface to a condition satisfactory to Grantor.

        (B)        If Grantee excavates the surface of any Rights-of-Way or Grantor owned property, Grantee shall be responsible for restoration in accordance with applicable regulations of the Rights-of-Way and its surface within the area affected by the excavation.  Grantor may, after providing notice to Grantee, refill or repave any opening made by Grantee in the Rights-of-Way or on Grantor owned property, and the expense thereof shall be paid by Grantee.  Grantor may, after providing notice to Grantee, remove and repair any work done by Grantee which, in the determination of Grantor, does not conform to applicable code. The cost thereof, including the costs of inspection and supervision shall be paid by Grantee.  All excavations made by Grantee in Rights-of-Way or on Grantor owned property shall be properly safeguarded for the prevention of accidents.  All of Grantee's work under this Franchise, and this Section in particular, shall be done in strict compliance with all rules, regulations and ordinances of Grantor.

10.4        Maintenance and Workmanship

        (A)        Grantee's System shall be constructed and maintained in such manner as not to interfere with sewers, water pipes or any other property of Grantor, or with any other pipes, wires, conduits, pedestals, structures or other facilities that may have been laid in Rights-of-Way by, or under, Grantor's authority.

        (B)        Grantee shall provide and use any equipment and appliances necessary to control and carry Grantee's signals so as to prevent injury to Grantor's property or property belonging to any Person.  Grantee, at its own expense, shall repair, renew, change and improve its facilities to keep them in good repair and safe and presentable condition.

        (C)        The Grantee's transmission and distribution system, wires and appurtenances shall be located, erected and maintained so as not to endanger or interfere with the lives of Persons, or to unnecessarily hinder or obstruct the free use of Rights-of-Way, alleys, bridges or other public property.

        (D)        Grantee may perform routine maintenance of the cable system on non-arterial streets under a blanket permit issued pursuant to Title 13 of the University Place Municipal Code.  

10.5        Acquisition of Facilities

Upon Grantee's acquisition of facilities in any Grantor Rights-of-Way, or upon the addition or annexation to the Grantor of any area in which Grantee owns or operates any facility, Grantee shall, at Grantor's request, submit to Grantor a statement describing all facilities involved, whether authorized by franchise, permit, license or other prior right, and specifying the location of all such facilities to the extent Grantee has possession of such information.  Such facilities shall immediately be subject to the terms of this Franchise.

10.6        Reservation of Grantor Rights-of-Way Use Rights

(A)        Nothing in this Franchise shall prevent Grantor or public utilities from constructing any public work or improvement.  If any of Grantee's System interferes with the construction or repair of any Rights-of-Way or public improvement, including construction, repair or removal of a sewer or water main, Grantee's System shall be removed or replaced in the manner Grantor shall direct, and Grantor shall in no event be liable for any damage to any portion of Grantee's System.  Any and all such removal or replacement shall be at the expense of Grantee.  All such removal or replacement shall be preceded by sixty (60) days written notice or such additional time as may be provided by Grantor.  Should Grantee fail to remove, adjust or relocate its facilities by the date established by Grantor's written notice to Grantee, Grantor may effect such removal, adjustment or relocation, and the expense thereof including all reasonable costs incurred by the Grantor directly due to Grantee’s delay shall be paid by Grantee.  

        (B)        The Grantor may remove, replace, modify or disconnect Grantee's facilities and equipment located in the public right-of-way or on any other property of the Grantor in the case of fire, disaster or other emergency.  

10.7        Discontinuing Use of Facilities

Whenever Grantee intends to discontinue using any facility within the Rights-of-Way, Grantee shall submit for Grantor's approval a complete description of the facility and the date on which Grantee intends to discontinue using the facility.  Grantee may remove the facility or request that Grantor allow it to remain in place.  Notwithstanding Grantee's request that any such facility remain in place, Grantor may require Grantee to remove the facility from the Rights-of-Way, or modify the facility to protect the public health, welfare, safety and convenience, or otherwise serve the public interest.  Grantor may require Grantee to perform a combination of modification and removal of the facility.  Grantee shall complete such removal or modification in accordance with a schedule set by Grantor.  Until such time as Grantee removes or modifies the facility as directed by Grantor, or until the rights to and responsibility for the facility are accepted by another Person having authority to construct and maintain such facility, Grantee shall be responsible for all necessary repairs and relocations of the facility, as well as maintenance of the Rights-of-Way, in the same manner and degree as if the facility were in active use, and Grantee shall retain all liability for such facility.  If Grantee abandons its facilities, Grantor may choose to use such facilities for any purpose whatsoever including, but not limited to, Access Channel purposes.

10.8        Hazardous Substances

        (A)        Grantee shall comply with all applicable State and federal laws, statutes, regulations and orders concerning hazardous substances relating to Grantee's System in Rights-of-Way.

        (B)        Grantee shall maintain and inspect its System located in Rights-of-Way.  Upon reasonable notice to Grantee, Grantor may inspect Grantee's facilities in Rights-of-Way to determine if any release of hazardous substances has occurred, or may occur, from or related to Grantee's System.  In removing or modifying Grantee's facilities as provided in this Franchise, Grantee shall also remove all residue of hazardous substances related thereto.

10.9        Undergrounding of Cable

        (A)        Where electric and telephone utility wiring is installed underground at the time of System construction, or when such wiring is subsequently placed underground, all System lines, wiring and equipment shall also be placed underground with other wireline service at no expense to the Grantor.  Related System equipment, such as pedestals, must be placed in accordance with applicable code requirements and rules as interpreted by the Grantor’s Director of Public Works.  In areas where either electric or telephone utility wiring are aerial, the Grantee may install aerial cable, except when a property owner or resident requests underground installation and agrees to bear the additional cost in excess of aerial installation.

(B)        The Grantee shall utilize existing poles and conduit wherever possible.

(C)        This Franchise does not grant, give or convey to the Grantee the right or privilege to install its facilities in any manner on specific utility poles or equipment of the Grantor or any other Person.  

(D)        The Grantee and the Grantor recognize that situations may occur in the future where the Grantor may desire to place its own cable or conduit for fiber optic cable in trenches or bores opened by the Grantee.  Therefore, if the Grantee upgrades in the future, the Grantee shall submit these plans to the Grantor in accordance with the Grantor’s permitting process so that such opportunities may be explored.  However, nothing set forth herein shall obligate the Grantee to slow the progress of the upgrade of the System to accommodate the Grantor. In addition, the Grantee agrees to cooperate with the Grantor in any other construction by the Grantee that involves trenching or boring.  If sufficient space is reasonably available, the Grantee shall allow the Grantor to lay its cable, conduit and fiber optic cable in the Grantee's trenches and bores, provided the Grantor shares in the cost of the trenching and boring on the same terms and conditions as the Grantee at that time shares the total cost of trenches and bores.  The Grantor shall be responsible for maintaining its respective cable, conduit and fiber optic cable buried in the Grantee's trenches and bores under this paragraph.

(E)        The Grantor shall not be required to obtain easements for the Grantee.  

(F)        The Grantee shall participate with other providers in joint trench projects to relocate its overhead facilities underground and remove its overhead facilities in areas where all utilities are being converted to underground facilities.

10.10        Construction Codes

Grantee shall strictly adhere to all building and zoning codes currently or hereafter in effect.  Grantee shall arrange its lines, cables and other appurtenances, on both public and private property, in such a manner as to cause no unreasonable interference with the use of said public or private property by any Person.  In the event of such interference, Grantor may require the removal or relocation of Grantee's lines, cables and other appurtenances from the property in question.  Grantee shall comply with all lawful Right-of-Way use regulations enacted by the Grantor that are generally applicable to utilities working in the Rights-of-Way.

10.11        Construction and Use of Poles

Whenever feasible, Grantee shall use existing poles when the installation of facilities above-ground is permitted.  In the event Grantee cannot obtain the necessary poles and related facilities pursuant to a pole attachment agreement, and only in such event, then it shall be lawful for Grantee to make all needed excavations in the Streets for the purpose of placing, erecting, laying, maintaining, repairing and removing poles, conduits, supports for wires and conductors, and any other facility needed for the maintenance or extension of Grantee's System.  All poles of Grantee shall be erected between the curb and the sidewalk unless otherwise designated by the proper authorities of Grantor, and each pole shall be set whenever practicable at an extension lot line.  Grantor shall have the right to require Grantee to change the location of any pole, conduit, structure or other facility within Rights-of-Way when, in the opinion of Grantor, the public convenience requires such change, and the expense thereof shall be paid by Grantee.

10.12        Tree Trimming  

Upon obtaining a written permit from Grantor, if such a permit is required, Grantee may prune or cause to be pruned, using proper pruning practices in accordance with such permit, any tree in the Rights-of-Way that interferes with the System.    

10.13        Standards

        (A)        All work authorized and required hereunder shall be done in a safe, thorough and worker like manner.  The Grantee must comply with all federal, State and Grantor safety requirements, rules, regulations, laws and practices, and employ all necessary devices as required by applicable law during construction, operation and repair of its System.  By way of illustration and not limitation, the Grantee must comply with the National Electric Code, National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards.

        (B)        Grantee shall ensure that all cable drops are properly bonded to the electrical power ground at the home, consistent with applicable code requirements.  All non-conforming or non-performing cable drops shall be replaced by Grantee as necessary.

        (C)        All installations of equipment shall be permanent in nature, durable and installed in accordance with good engineering practices and of sufficient height to comply with all existing Grantor regulations, ordinances and State laws so as not to interfere in any manner with the right of the public or individual property owner, and shall not interfere with the travel and use of public places by the public during the construction, repair, operation or removal thereof, and shall not obstruct or impede traffic.

        (D)        In the maintenance and operation of its System in Rights-of-Way, alleys and other public places, and in the course of any new construction or addition to its facilities, the Grantee shall proceed so as to cause the least possible inconvenience to the general public; any opening or obstruction in the Rights-of-Way or other public places made by the Grantee in the course of its operations shall be guarded and protected at all times by the placement of adequate barriers, fences or boarding, the bounds of which, during periods of dusk and darkness, shall be clearly designated by warning lights.

        (E)        In the event the Grantor shall relocate a Rights-of-Way, raise or lower a bridge, or make any other changes requiring the removal of utility installations, the Grantee shall remove or relocate its installations at said locations at no cost to the Grantor.

10.14        Stop Work

On notice from Grantor that any work is being conducted contrary to the provisions of this Franchise, or in an unsafe or dangerous manner as determined by Grantor, or in violation of the terms of any applicable permit, laws, regulations, ordinances or standards, the work may immediately be stopped by Grantor.  The stop work order shall:

        (A)        Be in writing;

        (B)        Be given to the individual doing the work, or posted on the work site;

        (C)        Be sent to Grantee by mail at the address given herein;

        (D)        Indicate the nature of the alleged violation or unsafe condition; and

        (E)        Establish conditions under which work may be resumed.

10.15        Work of Contractors and Subcontractors

Grantee's contractors and subcontractors shall be licensed and bonded in accordance with Grantor's ordinances, regulations and requirements.  Work by contractors and subcontractors is subject to the same restrictions, limitations and conditions as if the work were performed by Grantee.  Grantee shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were performed by it, and shall ensure that all such work is performed in compliance with this Franchise and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them.  It is Grantee's responsibility to ensure that contractors, subcontractors or other persons performing work on Grantee's behalf are familiar with the requirements of this Franchise and other applicable laws governing the work performed by them.

SECTION 11. CABLE SYSTEM DESIGN AND CAPACITY

11.1         Equal and Uniform Service

 The Grantee shall provide access to equal and uniform Cable Service offerings throughout the Franchise Area, provided that nothing shall prohibit the Grantee from activating additional Cable Services to Subscribers on a node by node basis during an upgrade of its Cable System.

11.2        Cable System Upgrade

Prior to the effective date of this Franchise, the Grantee undertook a voluntary upgrade of its Cable System to a fiber-to-the-node system architecture, with fiber-optic cable deployed from the Headend to the node and tying into a hybrid fiber-coaxial system already serving Subscribers.  Active and passive devices are capable of passing a minimum of 750 MHz, and the Cable System is capable of delivering high quality signals that meet, or exceed, FCC technical quality standards regardless of a particular manner in which signal is transmitted.  During the term of this Franchise, the Grantee agrees to maintain the Cable System in a manner consistent with, or in excess of these specifications.

11.3        Technical Performance

The technical performance of the Cable System shall meet or exceed all applicable federal (including, but not limited to, the FCC), State and local technical standards, as they may be amended from time to time, regardless of the transmission technology utilized.  Grantor shall have the full authority permitted by applicable law to enforce compliance with these technical standards.  

11.4        Cable System Performance Testing

        (A)        Grantee shall, at Grantee’s expense, perform the following tests on its Cable System:

                (1)        All tests required by the FCC;

                (2)        All other tests reasonably necessary to determine compliance with technical standards adopted by the FCC at any time during the term of this Franchise; and

                (3)        All other tests as otherwise specified in this Franchise.

        (B)        At a minimum, Grantee’s tests shall include:

                (1)        Cumulative leakage index testing of any new construction;

                (2)        Semi-annual compliance and proof of performance tests in conformance with generally accepted industry guidelines;

                (3)        Tests in response to Subscriber complaints;        and

                (4)        Cumulative leakage index tests designed to ensure that one hundred percent (100%) of Grantee’s Cable System has been ground or air tested for signal leakage in accordance with FCC standards.

        (C)        Grantee shall maintain written records of all results of its Cable System tests, performed by or for Grantee.  Copies of such test results will be provided to Grantor upon request.

        (D)        The FCC semi-annual testing is conducted in January/February and July/August of each year.  If Grantor contacts Grantee prior to the next test period (i.e., before December 15 and June 15 respectively of each year), Grantee shall provide City with no less than seven (7) days prior written notice of the actual date(s) for FCC compliance testing.  If Grantor notifies Grantee by the December 15th and June 15th dates that it wishes to have a representative present during the next test(s), Grantee shall cooperate in scheduling its testing so that the representative can be present. Notwithstanding the above, all technical performance tests may be witnessed by representatives of the City.


        (E)        Grantee shall be required to promptly take such corrective measures as are necessary to correct any performance deficiencies fully and to prevent their recurrence as far as possible.  Grantee’s failure to correct deficiencies identified through this testing process shall be a material violation of this Franchise.  Sites shall be re-tested following correction.

11.5        Additional Tests

Where there exists a pattern of poor technical performance which in the judgment of Grantor casts doubt upon the reliability or technical quality of Cable Service, the Grantor shall have the right and authority, with thirty (30) days prior written notice to Grantee, to require Grantee to test, analyze and report on the performance of the Cable System.  Grantee shall fully cooperate with the City in performing such testing and shall prepare the results and a report, if requested, within thirty (30) days after testing.  Such report shall include the following information:


        (A)        the nature of the complaint or problem which precipitated the special tests;

        (B)        the Cable System component tested;

        (C)        the equipment used and procedures employed in testing;

        (D)        the method, if any, in which such complaint or problem was resolved; and

        (E)        any other information pertinent to said tests and analysis which may be required.

SECTION 12.  INSTITUTIONAL NETWORK

12.1        Option to Provide Institutional Network at Grantor’s request

The Grantor may, during the term of this franchise, require the Grantee to provide a proposal for provision of an Institutional Network.  Upon receipt of the notice, the Grantor and the Grantee shall meet to discuss the Institutional Network communications needs of the Grantor and the ability of the Grantee to accommodate them, at the Grantor’s expense.  I-Net design shall be based upon the cable system architecture, taking into account the needs of the Grantor and current available technology.  

12.2        Design and Estimation of Cost

Within sixty (60) days of the determination of the Grantor’s I-Net needs the Grantee shall provide to the Grantor in writing, a firm estimate of the incremental cost of I-Net construction.  Within sixty (60) days of receipt of the cost estimate, the Grantor shall respond to the Grantee with an acceptance or rejection of the I-Net project.  If the Grantor accepts the project, the Grantee will proceed with construction.  Upon completion of construction, the Grantee will invoice the Grantor for construction costs in an amount not to exceed the estimate and payable within one hundred twenty (120) days.

       

12.3        Exclusive Right of Use

The Grantor shall have an exclusive right of use of the I-Net capacity for non-commercial private network communications, which right cannot be revoked by the Grantee, or successor companies, if any, during the term of this Franchise or any renewals thereof.  The Grantor may authorize other government agencies, schools, libraries, and other public agencies within the Franchise Area to use the I-Net.   However, the Grantee shall at all times own in fee and maintain the aerial and underground fiber optic cable (fiber backbone) and associated facilities and equipment up to the termination demarc points where physically connected to User-owned optronics.

SECTION 13.  SERVICE AVAILABILITY


13.1         Service Availability
In general, except as otherwise provided herein, Grantee shall provide service within seven (7) days of a request by any Person requiring a standard installation within its Franchise Area.  For purposes of this Section, a request shall be deemed made on the date of signing a service agreement, receipt of funds by Grantee, receipt of a written request by Grantee or receipt by Grantee of a verified verbal request.  Grantee shall provide such service:

(A)        At a non-discriminatory installation charge for a standard installation, consisting of a one-hundred twenty-five (125) foot drop connecting to an inside wall, with additional charges for non-standard installations computed according to a non-discriminatory method for such installations, adopted by Grantee and provided in writing to Grantor.

(B)        At non-discriminatory monthly rates for all Subscribers, excepting commercial customers, MDU Bulk customers and other lawful exceptions to uniform pricing.

SECTION 14.  STANDBY POWER AND EAS

14.1        Standby Power

Grantee shall provide standby power generating capacity at the System Headend capable of providing at least twelve (12) hours of emergency operation.  Grantee shall maintain standby power system supplies, rated for at least two (2) hours duration, throughout the trunk and distribution networks.  In addition, throughout the term of this Franchise Grantee shall have a plan in place, along with all resources necessary for implementing such plan, for dealing with outages of more than two (2) hours.

14.2        Emergency Alert Capability

        (A)        In accordance with, and at the time required by, the provisions of FCC Regulations, as such provisions may from time to time be amended, EAS activation will be accomplished in compliance with the FCC approved Washington State EAS plan and the Local Area EAS plan that applies to Pierce County, which has been approved by the Washington State Emergency Communications Committee (WSECC).

        (B)         Grantee shall ensure that the EAS system is functioning properly at all times.  It will test the EAS system periodically, in accordance with FCC regulations.  

SECTION 15.  FRANCHISE BREACHES; TERMINATION OF FRANCHISE

15.1        Informal Dispute Resolution

Prior to proceeding with the formal Procedure for Remedying of Franchise Violations process as set forth below, Grantor agrees to provide Grantee informal verbal or electronic mail notice of any alleged material violation of this Franchise and allow Grantee a reasonable opportunity to cure the violation. If the alleged violation is investigated by Grantee and determined to be valid, Grantee agrees to exert good faith efforts to immediately resolve the matter. However, if the alleged violation is determined by Grantee to be invalid, or outside of Grantee’s legal responsibilities, the Grantee promptly shall so advise Grantor. Grantee agrees to exert good faith efforts to expedite its investigation, determination and communications to Grantor so that the informal resolution process proceeds on an expedited basis. If Grantor believes that Grantee is unreasonably delaying the informal resolution process, it may commence the formal dispute resolution process.

15.2        Procedure for Remedying Franchise Violations  

        (A)        If Grantor believes that Grantee has failed to perform any material obligation under this Franchise, or has failed to perform in a timely manner, Grantor shall notify Grantee in writing, stating with reasonable specificity the nature of the alleged default.  Grantee shall have thirty (30) days from the receipt of such notice to:

(1)        Respond to Grantor, contesting Grantor's assertion that a default has occurred, and requesting a hearing in accordance with subsection (B), below;

                (2)        Cure the default; or

(3)        Notify Grantor that Grantee cannot cure the default within the thirty (30) days, because of the nature of the default.  In the event the default cannot be cured within thirty (30) days, Grantee shall promptly take all reasonable steps to cure the default and notify Grantor in writing and in detail as to the exact steps that will be taken and the projected completion date.  In such case, Grantor may set a hearing in accordance with subsection (B) below to determine whether additional time beyond the thirty (30) days specified above is indeed needed, and whether Grantee's proposed completion schedule and steps are reasonable.  Upon five (5) business days' prior written notice, either Grantor or Grantee may call an informal meeting to discuss the alleged default.

        (B)        If Grantee does not cure the alleged default within the cure period stated above, or by the projected completion date under subsection (A)(3), or denies the default and requests a hearing in accordance with subsection (A)(1), or Grantor orders a hearing in accordance with subsection (A)(3), Grantor shall set a public hearing to investigate said issues or the existence of the alleged default.  Grantor shall notify Grantee of the hearing in writing and such hearing shall take place no less than seven (7) days after Grantee's receipt of notice of the hearing.  At the hearing, Grantee shall be provided an opportunity to be heard, to present and question witnesses, and to present evidence in its defense.  At any such hearing, Grantor shall not unreasonably limit Grantee’s opportunity to make a record which may be reviewed should any final decision of Grantor be appealed to a court of competent jurisdiction.  The determination as to whether a default or a material breach of this Franchise has occurred shall be within Grantor's sole discretion, but any such determination shall be subject to appeal  to  a court of competent jurisdiction.

        (C)        If, after the public hearing, Grantor determines that a default still exists, Grantor shall order Grantee to correct or remedy the default or breach within fourteen (14) days or within such other reasonable timeframe as Grantor shall determine.  In the event Grantee does not cure within such time to Grantor's reasonable satisfaction, Grantor may:

                (1)        Assess and collect monetary damages in accordance with this Franchise;

                (2)        Commence procedures to terminate this Franchise; or,

(3)        Pursue any other legal or equitable remedy available under this Franchise or applicable law.

        (D)        The determination as to whether a violation of this Franchise has occurred pursuant to this Section herein shall be within the sole discretion of the Grantor or its designee.  Any such determination by Grantor shall be accompanied by a record, to which Grantee’s contribution shall not be unreasonably limited by Grantor.  Any such final determination shall be subject to appeal to a court of competent jurisdiction.

15.3        Alternative Remedies  

(A)        No provision of this Franchise shall be deemed to bar the right of the either party to seek or obtain judicial relief from a violation of any provision of the Franchise or any rule, regulation, requirement or directive promulgated thereunder.  Neither the existence of other remedies identified in this Franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of either party to recover monetary damages, as allowed under applicable law, or to seek and obtain judicial enforcement of obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity.  

(B)        The Grantor specifically does not, by any provision of this Franchise, waive any right, immunity, limitation or protection (including complete damage immunity) otherwise available to the Grantor, its officers, officials, Councils, boards, commissions, authorized agents, or employees under federal, state, or local law including by example Section 635A of the Cable Act.  The Grantee shall not have any monetary recourse against the Grantor, or its officers, officials, Council, Boards, commissions, agents or employees for any loss, costs, expenses or damages arising out of any provision, requirement of this Franchise or the enforcement thereof.

15.4        Assessment of Monetary Damages

        (A)        Upon completion of the procedures set forth above, and from the date of said violation pursuant to the procedures specified in this Franchise, Grantor may assess against and collect from Grantee monetary damages in amounts of up to five hundred dollars ($500.00) per day or the Cities actual damages, whichever is greater, for general construction delays, and up to two hundred dollars ($200.00) per day for any other material breaches.  Grantor may collect the assessment as specified in this Franchise.

        (B)        Any assessment hereunder shall not constitute a waiver by Grantor of any other right or remedy it may have under this Franchise or applicable law, including its right to recover from Grantee any additional rights or claims Grantor might have to damages, losses, costs and expenses.

        (C)        The Grantor and the Grantee recognize the delays, expense and unique difficulties involved in proving in a legal proceeding the actual loss suffered by the Grantor as a result of the Grantee's breach of this Franchise.  Accordingly, instead of requiring such proof, the Grantor and the Grantee agree that the Grantee shall pay to the Grantor the sums set forth above for each day that the Grantee shall be in breach of the specific provisions of this Franchise.  Such amounts are agreed by both parties to be a reasonable estimate of the actual damages the Grantor would suffer in the event of the Grantee's breach of such provisions of this Franchise, and are not intended as a penalty.

        (D)        The Grantee's maintenance of the Security required herein or by applicable code shall not be construed to excuse unfaithful performance by the Grantee of this Franchise; to limit the liability of the Grantee to the amount of the Security; or to otherwise limit the Grantor's recourse to any other remedy available at law or equity.        

15.5        Revocation  

        (A)        This Franchise may be revoked and all rights and privileges rescinded if a material breach of the Franchise is not cured pursuant to Section 15.2, or in the event that:

(1)        Grantee fails to perform any material obligation under this Franchise;

(2)        Grantee attempts to evade any material provision of this Franchise or to practice any fraud or deceit upon the Grantor or Subscribers;

(3)        Grantee makes a material misrepresentation of fact in the negotiation of this Franchise;

(4)        Grantee or an Affiliate challenges the legality or enforceability of this Franchise in a judicial or administrative (for example, FCC) proceeding;

(5)        Grantee fails to maintain required business offices within the County as provided in this Franchise;

                (6)         Grantee abandons the System, or terminates the System's operations;  

(7)         Grantee fails to restore service to the System after three consecutive days of an outage or interruption in service; except in the case of an emergency, force majeure occurrence, or when approval of such outage or interruption is obtained from the Grantor, it being the intent that there shall be continuous operation of the System; or

(8)         Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt, there is an assignment for the benefit of Grantee’s creditors, or all or part of the Grantee's System is sold under an instrument to secure a debt and is not redeemed by Grantee within thirty (30) days from said sale.

        (B)        Additionally, this Franchise may be revoked one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of the Grantee (at the option of the Grantor and subject to applicable law) whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless:

(1)        The receivership or trusteeship is vacated within one hundred twenty (120) days of appointment; or

(2)        The receivers or trustees have, within one hundred twenty (120) days after their election or appointment, fully complied with all the material terms and provisions of this Franchise and have remedied all material defaults under the Franchise.  Additionally, the receivers or trustees shall have executed an agreement duly approved by the court having jurisdiction, by which the receivers or trustees assume and agree to be bound by each and every term and provision of this Franchise.

        (C)        If there is a foreclosure or other involuntary sale of the whole or any part of the plant, property and equipment of Grantee, Grantor may serve notice of revocation on Grantee and to the purchaser at the sale, and the rights and privileges of Grantee under this Franchise shall be revoked thirty (30) days after service of such notice, unless:

(1)        Grantor has approved the transfer of the Franchise, in accordance with the procedures set forth in this Franchise and as provided by law; and

(2)        The purchaser has covenanted and agreed with Grantor to assume and be bound by all of the terms and provisions of this Franchise.

        (D)        Grantor shall provide Grantee written notice of its intent to consider revocation and hold a hearing in accordance with the provisions of this Franchise.  Grantee shall submit any objection to revocation in writing to Grantor, stating with specificity its objections.  Grantor shall hear any Persons interested in the revocation, and shall allow Grantee an opportunity to be heard, to cross-examine witnesses, to present evidence, and to make all reasonable additions to the hearing record.

        (E)        Grantor shall determine whether the Franchise shall be revoked.  The Grantee may appeal such determination to a court of competent jurisdiction.  Such appeal to the appropriate court shall be taken within thirty (30) days of the issuance of the determination of the Grantor.  Grantor shall receive notice of any appeal concurrent with any filing to a court of competent jurisdiction.

15.6        Removal          

(A)        In the event of termination, expiration or revocation of this Franchise, and after all appeals from any judicial determination are exhausted and final, Grantor may order the removal of the System facilities from the Franchise Area at Grantee's sole expense within a reasonable period of time as determined by Grantor.  In removing its plant, structures and equipment, Grantee shall refill, at its own expense, any excavation that is made by it and shall leave all Rights-of-Way, public places and private property in as good a condition as that prevailing prior to Grantee's removal of its equipment.        

(B)        If Grantee fails to complete any required removal to the satisfaction of Grantor, Grantor may cause the work to be done, and Grantee shall reimburse Grantor for the reasonable costs incurred within thirty (30) days after receipt of an itemized list of Grantor’s expenses and costs, or Grantor may recover its expenses and costs from the Security, or pursue any other judicial remedies for the collection thereof.  Any expenses incurred in the collection by Grantor of such obligation shall be included in the monies due Grantor from Grantee, including reasonable attorney fees, court expenses and attributed expenses for work conducted by Grantor’s staff or agents.

SECTION 16.  ABANDONMENT

16.1        Effect of Abandonment  

If the Grantee abandons its System or Institutional Network during the Franchise term, or fails to operate its System or Institutional Network in accordance with its duty to provide continuous service, the Grantor, at its option, may operate the System or; designate another entity to operate the System temporarily until the Grantee restores service under conditions acceptable to the Grantor, or until the Franchise is revoked and a new franchisee is selected by the Grantor.  If the Grantor designates another entity to operate the System, the Grantee shall reimburse the Grantor for all reasonable costs, expenses and damages incurred, including reasonable attorney fees, court expenses and attributed expenses for work conducted by Grantor’s staff or agents.

SECTION 17.  FRANCHISE TRANSFER

17.1        Transfer of Ownership or Control

        (A)        The Cable System and this Franchise shall not be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right, interest or property therein pass to or vest in any Person or entity without the prior written consent of the Grantor, which consent shall be by the City Council, acting by ordinance or resolution.

        (B)        The Grantee shall promptly notify the Grantor of any actual or proposed change in, or transfer of, or acquisition by any other party of control of the Grantee.  The word “control” as used herein is not limited to majority stockholders but includes actual working control in whatever manner exercised.  Every change, transfer or acquisition of control of the Grantee shall make this Franchise subject to cancellation unless and until the Grantor shall have consented in writing thereto.

        (C)        The parties to the sale or transfer shall make a written request to the Grantor for its approval of a sale or transfer and furnish all information required by law and the Grantor.

        (D)        In seeking the Grantor's consent to any change in ownership or control, the proposed transferee shall indicate whether it:

                (1)         Has ever been convicted or held liable for acts involving deceit including any violation of federal, State or local law or regulations, or is currently under an indictment, investigation or complaint charging such acts;

                (2)         Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against the proposed transferee by any court of competent jurisdiction;

                (3)         Has pending any material legal claim, lawsuit, or administrative proceeding arising out of or involving a cable system;

                (4)         Is financially solvent, by submitting financial data including financial statements that are audited by a certified public accountant who may also be an officer of the transferee, along with any other data that the Grantor may reasonably require; and

                (5)         Has the financial, legal and technical capability to enable it to maintain and operate the Cable System for the remaining term of the Franchise.

        (E)        The Grantor shall act by ordinance or resolution on the request within one hundred twenty (120) days of the request, provided it has received all requested information.  Subject to the foregoing, if the Grantor fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted unless the requesting party and the Grantor agree to an extension of time.  

        (F)        Within thirty (30) days of any transfer, sale or change of control, if approved or deemed granted by the Grantor, Grantee shall file with the Grantor a copy of the deed, agreement, lease or other written instrument evidencing such sale or transfer of ownership or change of control, certified and sworn to as correct by Grantee and the transferee, and the transferee shall file its written acceptance agreeing to be bound by all of the provisions of this Franchise, subject to applicable law.  In the event of a change in control, in which the Grantee is not replaced by another entity, the Grantee will continue to be bound by all of the provisions of the Franchise, subject to applicable law, and will not be required to file an additional written acceptance.

        (G)        In reviewing a request for sale, transfer, or change of control the Grantor may inquire into the legal, technical and financial qualifications of the prospective controlling party or transferee, and Grantee shall assist the Grantor in so inquiring.  The Grantor may condition said sale or transfer upon such terms and conditions as it deems reasonably appropriate, provided, however, any such terms and conditions so attached shall be related to the legal, technical and financial qualifications of the prospective controlling party or transferee and to the resolution of outstanding and unresolved issues of noncompliance with the terms and conditions of this Franchise by Grantee.

        (H)        Notwithstanding anything to the contrary in this subsection, the prior approval of the Grantor shall not be required for any sale, assignment or transfer of the Franchise or Cable System to an entity controlling, controlled by or under the same common control as Grantee, provided that the proposed assignee or transferee must show financial responsibility as may be determined necessary by the Grantor and must agree in writing to comply with all of the provisions of the Franchise.  Further, Grantee may pledge the assets of the Cable System for the purpose of financing without the consent of the Grantor; provided that such pledge of assets shall not impair or mitigate Grantee’s responsibilities and capabilities to meet all of its obligations under the provisions of this Franchise.

SECTION 18.  MISCELLANEOUS PROVISIONS

18.1        Preferential or Discriminatory Practices Prohibited

Grantee shall not discriminate in hiring, employment or promotion on the basis of race, color, ethnic or national origin, religion, age, sex, sexual orientation, or physical or mental disability.  Throughout the term of this Franchise, Grantee shall fully comply with all applicable equal employment or non-discrimination provisions and requirements of federal, State and local laws, and rules and regulations relating thereto.

18.2        Notices

Throughout the term of this Franchise, each party shall maintain and file with the other a local address for the service of notices by mail.  All notices shall be sent to such respective address, and such notices shall be effective upon the date of mailing.  At the effective date of this Franchise:

Grantee's address shall be:

                Comcast of Puget Sound, Inc.
                2316 South State Street
                Tacoma, WA  98405
                Attention:  General Manager

        With a copy to:
                Comcast of Puget Sound, Inc.
                22025 – 30th Drive SE
                Bothell, WA  98021-4444    
                Attention:  Franchising Department

Grantor's address shall be:
         
City of University Place
                3715 Bridgeport Way West
University Place, Washington 98466
Attention: City Manager

        With a copy to:
                Rainier Communications Commission
                4400 Steilacoom Blvd. SW
                Lakewood, Washington 98499

18.3        Costs to be Borne by Grantee

Grantee shall pay for all costs of publication of this Franchise, and any and all reasonable costs for public notices provided for in this Franchise.

18.4        Binding Effect

This Franchise shall be binding upon the parties hereto, their permitted successors and assigns.

18.5        Authority to Amend

This Franchise may be amended at any time by written agreement between the parties.

18.6        Venue

The Venue for any dispute related to this Franchise shall be with the United States District Court for the Western District of Washington or the Pierce County Superior Court, Tacoma, Washington.

18.7        Governing Law

This Franchise shall be governed in all respects by the laws of the State of Washington.

18.8        Guarantee  

The performance of the Grantee shall be guaranteed in all respects by TCI West, Inc.  A signed guarantee, in the form of Exhibit I shall be filed with the Grantor contemporaneous with Grantee’s acceptance of this Franchise. Any substitute guarantor is subject to approval by the City, such approval not to be unreasonably withheld.  

18.9        Captions

The captions and headings of this Franchise are for convenience and reference purposes only and shall not affect in any way the meaning or interpretation of any provisions of this Franchise.

18.10        Construction of Franchise

The provisions of this Franchise shall be liberally construed to promote the public interest.

18.11        No Joint Venture

Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner that would indicate any such relationship with the other.

18.12        Waiver

The failure of either party at any time to require performance by the other of any provision hereof shall in no way affect the right of the other party hereafter to enforce the same.  Nor shall the waiver by either party of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself or any other provision.

18.13        Severability

If any Section, subsection, paragraph, term or provision of this Franchise is determined to be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other Section, subsection, paragraph, term or provision of this Franchise, all of which will remain in full force and effect for the term of the Franchise.

18.14        Entire Agreement  

This Franchise and all Exhibits represent the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersede all prior oral negotiations and written agreements between the parties.

18.15        Customer Service Standards
Grantee agrees to comply with any customer service standards that are lawfully adopted by Grantor under applicable federal law.

18.16        Compliance with Federal, State, and Local Laws

The Grantee shall comply with applicable federal, state and local laws, rules and regulations.  

18.17        Force Majeure  

 The Grantee shall not be held in default under, or in noncompliance with, the provisions of this Franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the Grantee to anticipate and control, including war or riots, civil disturbances, floods or other natural catastrophes, labor stoppages, slow downs, or power outages exceeding back-up power supplies, work delays caused by waiting for utility providers to service or monitor their utility poles to which the Grantee’s Cable System is attached as well as unavailability of materials irrespective of cost.  



        IN WITNESS WHEREOF, and pursuant to the vote of approval of the qualified electors (if required) of University Place, Washington this Franchise is signed in the name of the City of University Place, Washington, a municipal corporation, this        day of                , 2002.

                                                 

CITY OF UNIVERSITY PLACE


                                                         
By:
Its:

ATTEST:



                                                         
City Clerk  
                                        , Washington

                                                         
Clerk and Recorder


APPROVED AS TO FORM



                                                         
City Attorney


        ACCEPTED this        day of                                 , 2003, subject to applicable federal, state and local law.

                                                 
COMCAST OF PUGET SOUND, INC.
                                                 
                                                 

                                                 
By:        Richard Germano
Its:        Senior Vice-President

                                 

EXHIBIT I  -  PARENT GUARANTEE


        WHEREAS, the City of University Place, Washington (hereinafter called “Grantor”) under this Franchise Agreement dated the _____ day of _________, 2002 has granted a franchise to Comcast of Puget Sound, Inc. a/k/a COMCAST, INC and f/k/a AT&T Broadband, an affiliate of TCI West, Inc., (hereinafter called “Grantee”) to own, operate and maintain a cable television system (hereinafter called “Franchise”): and

        WHEREAS, TCI West, Inc. (hereinafter called “Guarantor”), a Delaware corporation, being the affiliate company of the Grantee, has a substantial interest in said Franchise, the conduct of the Grantee, and the Franchise Agreement between Grantor and Grantee establishing Franchise requirements, which Agreement is hereby specifically referred to, incorporated herein and made a part hereof; and

        WHEREAS. Section 18.8 of said Franchise Agreement requires the Grantee, as Principal, to furnish a guarantee by the Guarantor:

        NOW THEREFORE, pursuant to the provisions of Section 18.8 Guarantor hereby unconditionally guarantees the due and punctual performance of any and all obligations of Grantee contained in the Franchise Agreement. This Guarantee shall, unless terminated, substituted or canceled as hereinafter provided, remain in full force and effect for the period provided by said Franchise.  Provided that, upon substitution of another Guarantor reasonably satisfactory to the Grantor, this Guarantee may be terminated, substituted or canceled upon thirty (30) days prior written notice from Guarantor to the Grantor and Grantee.  Approval shall not be unreasonably withheld.  This Guarantee is not a waiver of any claim or defense that would be available to the Grantee.  

        Any such notice to be given hereunder shall be addressed to Grantor, with a copy to Grantee.  Such terminations shall not affect liability incurred or accrued under this Guarantee prior to the effective date of such termination or cancellation.

        IN WITNESS WHEREOF, the Grantee and Guarantor have hereunto set his hands and seals this ______ day of __________, 2003.


COMCAST OF PUGET SOUND, INC.                TCI WEST, INC.


                                                                                                         
By:        Richard Germano                                By:        Richard Germano
Title:        Senior Vice-President                                Title:        Senior Vice-President

EXHIBIT II  -  ACCESS ORIGINATION POINTS

Building Address City
City Hall 3715 Bridgeport Way W. University Place
U.P. School Dist. Technology Ctr.   8805 40th Street W University Place

Council Minutes

Special & Regular Meeting Minutes-20030721-2025 

OrdinanceID

Ordinance :391-19010125-391 
Attachments
Content Type: Ordinance
Created at 8/3/2009 8:29 PM  by Marquam Group 1 
Last modified at 8/3/2009 8:29 PM  by Marquam Group 1