HomeMy WebLinkAboutITEM IV-BInteroffice Memorandum
Information Services
WASHINGTON
To: Public Works Committee Members
Municipal Services Committee
CC: Mayor Lewis
Shelley Coleman
Dennis Dowdy
Dan Heid
From: Lorrie Rempher
Date: December 2, 2009
Re: Comcast Cable Franchise Extension
For the past several months, we have been working on final language for a franchise extension with
Comcast Cable. Information Services, Legal, Finance, Public Works and Administration have all been
involved in review of the agreement and recommend it be the basis for approving the extension of
Comcast's Cable franchise for an additional five years.
The intention of this negotiation was to keep the previous franchise in place and extend the length.
Due to the changes in the technical environment over the past few years, there are some items that
needed addressed in the extension language.
The final extension agreement is outlined in three documents: Ordinance 6284, Resolution 4530 and
Resolution 4531. Following is a summary of the provisions in those documents.
Extension timeframe: Resolution 4530, page 4 of 10, Section II
The franchise is extended for five years from the date of execution of this resolution.
Technical Audit: Resolution 4530, page 5 of 10, Section III, F.
This section requires Comcast to certify their technology each year.
PEG Support & Channel Locations: Resolution 4530, page 6, 7 of 10 Section IV
This institutes a $.35 per subscriber per month fee that will pass through to City of Auburn to
support capital expenditures related to public, education and government access television
including but not limited to hardware upgrades, software upgrades, cameras, studio work, conduit
related to government access TV. It is anticipated that this can be used to pay for the fiber between
the current and new City Hall as there will be `studio' features in a conference room in that facility.
Page 1 of 2
AUBURN * MORE THAN YOU IMAGINED
This section also discusses Comcast's support of transitioning the City of Auburn channel 21 to
digital technology at no expense to the City.
Annexations: Resolution 4530, page 8 of 10, Section VI
Provides for a 12 month window in which Comcast must begin to serve any of our annexation
areas.
Cable to Public Buildings: Resolution 4530, page 8 of 10, Section VII
This adds cable service to M&O Facility and the new VRFA fire station. It clarifies the language on
Jail cable service and requires that we get a separate commercial service for the purpose of
providing inmate television services.
Competitive Equity: Resolution 4530, page 9, 10 of 10, Section IX
Comcast has requested this language to ensure that new franchisees are required to provide the
same level of service and PEG support as they are. Per our Franchise Attorney, this is industry
standard.
Institutional Network (I-Net): Resolution 4531
This removes the I-Net fiber network from the franchise and creates a separate lease agreement
that leases the infrastructure to City of Auburn for $1 per year for 50 years. This was at our request
to eliminate the possibility of franchise law changing and the franchisee having the opportunity to
take what they determine is "fair market value" of this infrastructure out of our future franchise fees.
Gross Revenue: Ordinance 6284
This is a clarification of how gross revenue is calculated. Our Finance Director and Legal
Department have reviewed and agree with this language.
Page 2 of 2
AUBURN * MORE THAN YOU IMAGINED
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Agenda Subject: Resolution No. 4530
AGENDA BILL APPROVAL FORM
Date: December 8, 2009
Department: Attachments: Budget Impact:
Information Services Resolution No. 4530
Administrative Recommendation:
City Council to adopt Resolution No. 4530
Background Summary:
Resolution No. 4530 extends the Comcast Franchise agreement for an additional five years from date of
execution. It also institutes the requirement for a yearly technical audit by Comcast, defines PEG support
and Channel locations, provides provisions for Annexations, cables to public buildings and includes
language for competitive equity.
T1221-2
Reviewed by Council & Committees:
Reviewed by Departments & Divisions:
❑ Arts Commission
COUNCIL COMMITTEES:
❑ Building
❑
M&O
❑ Airport
® Finance
❑ Cemetery
❑
Mayor
❑ Hearing Examiner
® Municipal Serv.
® Finance
❑
Parks
❑ Human Services
❑ Planning & CD
❑ Fire
❑
Planning
❑ Park Board
®Public Works
® Legal
❑
Police
❑ Planning Comm.
❑ Other
® Public Works
❑
Human Resources
M Information Services
Action:
Committee Approval
Council Approval:
Referred to
Tabled
❑Yes ❑No
❑Yes ❑No Call for Public Hearing
Until
Until / /
Councilmember: Cerino Staff: Rempher
Meetinq Date: December 21, 2009 Item Number:
Am=
RESOLUTION NO. 4 5 3 0
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE
ADDENDUM IV TO THE CABLE FRANCHISE
AGREEMENT BETWEEN THE CITY OF AUBURN
AND COMCAST OF WASHINGTON
WHEREAS, the City of Auburn entered into a Non-Exclusive Franchise
Agreement with TCI Cablevision pursuant to Resolution 2409, approved on May
3, 1993; and
WHEREAS, certain provisions of Section 5 and Section 8 of the Franchise
were amended in Addendum I to the Franchise which was approved June 15,
1998 pursuant to Resolution 2972; and
WHEREAS, the date for construction and operation of a public access
facility was extended from July 1, 1999 to September 1, 1999 in Addendum II to
the Franchise which was approved June 21, 1999 pursuant to Resolution 3096;
and
WHEREAS, this date was further extended to February 1, 2001 in
Addendum III to the franchise which was approved November 1, 1999 pursuant
to Resolution 3122; and
WHEREAS, Comcast of Washington IV, Inc. ("Comcast") is the successor
in interest to TCI Cablevision and currently holds the above Franchise; and
WHEREAS, the Franchise expired on midnight June 30, 2008; and
Resolution No. 4530
December 9, 2009
Page 1 of 11
WHEREAS, the City and Comcast have continued to operate under the
Franchise while they have been in discussions regarding the terms under which
the Franchise could be extended; and
WHEREAS, the City Council finds that the terms set forth in the attached
Addendum III to the Franchise, which extends the Franchise for an additional five
years, are in the best interest of the City and its citizens,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
HEREBY RESOLVES as follows:
Section 1. The Mayor and City Clerk of the City of Auburn, Washington,
are hereby authorized to execute Addendum IV to the Non-Exclusive Franchise
Agreement Between the City of Auburn, Washington and Comcast of
Washington IV to Operate a Cable Television System Within the City of Auburn,
Washington, a copy of which is attached hereto, marked as Exhibit "A" and
incorporated herein by this reference.
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of this
legislation.
Section 3. That this Resolution shall take effect and be in full force
upon passage and signatures hereon.
Resolution No. 4530
December 9, 2009
Page 2 of 11
Dated and Signed this day of , 2009.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
Resolution No. 4530
December 9, 2009
Page 3 of 11
ADDENDUM IV TO THE NON-EXCLUSIVE FRANCHISE AGREEMENT
BETWEEN THE CITY OF AUBURN, WASHINGTON AND COMCAST OF
WASHINGTON IV TO OPERATE A CABLE TELEVISION SYSTEM WITHIN
THE CITY OF AUBURN, WASHINGTON
This ADDENDUM IV regarding extension of the Franchise Agreement and
making various changes to the Agreement between the City of Auburn,
Washington, and Comcast of Washington IV, and approved by the City Council
pursuant to Resolution No. 2409 on May 3, 1993 and amended on June 11,
1998, and further amended on June 15, 1999, is hereby entered into between the
CITY OF AUBURN, a Washington municipal corporation, hereinafter referred to
as the "CITY" and Comcast of Washington IV, Inc. a Washington corporation,
hereinafter referred to as "OPERATOR."
NOW, THEREFORE, the parties agree as follows:
Section I. For purposes of this Addendum IV, "Franchise" shall mean
the Franchise Agreement approved by the City Council pursuant to Resolution
No. 2409, as amended by Resolution No. 2972 and Resolution No. 3096.
Section II. Section 2, Length of Franchise, of the Franchise is hereby
amended to read as follows:
Section 2 Length of Franchise.
This Franchise will be continued for five (5) years following
the execution date this Addendum IV.
Section III. Section 5, Future Provision, of the Franchise is hereby
amended to read as follows:
Section 5. Future Provisions.
A. The CITY and the OPERATOR acknowledge that the
CITY should be provided with a cable system that has the same
Resolution No. 4530
December 9, 2009
Page 4 of 11
general capabilities and capacity as those provided other cities
served by the OPERATOR in the King-Pierce-Snohomish County
area of the State of Washington.
B. The CITY may, at its discretion, require that the
OPERATOR provide such interactive services as addressability,
security, computer interaction, banking, shopping, voice and
transmission, High Definition Television (HDTV), fiber optic and
other such features, as well as upgrades capable of carrying at
least fifty-four (54) channels, within the CITY within twenty-four (24)
months of the time the OPERATOR provides any of the same
services identified above to a preponderance of a system;
1. Within the City of Seattle system, or;
2. Within any adjacent community, or;
3. Within Forty percent (40%) of the municipalities in
the King, Pierce, and Snohomish Counties.
C. Notwithstanding the above provisions, the
OPERATOR shall in any event complete the upgrade to fifty-four
(54) channels and have the capability of implementing these
enhanced services within forty-eight (48) months from the effective
date of this AGREEMENT.
D Prior to implementation of any such service, the
OPERATOR may request a public hearing by the City Council to
discuss the benefits of said features to the citizens of the CITY.
Upon a finding by the City Council that such features are
reasonably required to meet community needs, taking into
consideration the expense of providing such services and the
potential costs to subscribers, the City Council may require the
implementation of such features in accordance with the provisions
of this AGREEMENT. If the Council deems it necessary, it may, at
its own option by a majority vote, extend the time requirements
established in this section.
E. Additionally, the OPERATOR, upon completion of the
upgrade or by the expiration of the forty-eight (48) month period as
prescribed herein, shall provide, maintain and operate a public
access studio within a radius of eight (8) miles of the City Hall, or at
a location mutually agreeable by all parties. Such facilities shall be
subject to approval by the CITY as suitable. Such approval shall not
be unreasonably withheld.
F. OPERATOR shall annually provide to the City a
certification signed by its Vice President of Engineering for the
State of Washington, or other senior engineer as agreed upon by
the City, certifying that its policies and procedures comply with all
applicable laws and codes and that all known maintenance issues
have been repaired in compliance therewith.
Resolution No. 4530
December 9, 2009
Page 5 of 11
Section IV. Section 6, Access Channels, of the Franchise Agreement is
hereby amended to read as follows:
Section 6. Access Channels
A. Upon completion of the upgrade conditions, the CITY
shall be provided with three (3) access channels, one of which shall
be capable of broadcasting live from City Hall. The CITY may
initially share a common public access channel with other
communities; however, the CITY may elect, at its option, to provide
programing over an individual public access channel for the CITY's
sole use.
B. Additional channels over and above those referenced
above shall be made available for CITY purposes when any of the
three (3) designated channels is in use for access purposes with
programing during fifty percent (50%) of the hours between 10:00
A.M. and 10:00 P.M., during any consecutive ten (10) week period.
The OPERATOR shall within six (6) months following a request by
the CITY, subject to the restrictions above, provide another
designated access channel for this purpose.
C. The OPERATOR shall continue to provide additional
channels under the same conditions. Programing on additional
channels shall be distinct and non-repetitive of the previous
channel. If additional channels are designated for community use
but after one year such channel(s) are not utilized at least twenty-
five percent (25%) of the hours between 10:00 a.m. and 10:00 p.m.
with programing, the access users will, within six (6) months of
receiving written notice from the OPERATOR, group their
programing into one contiguous block of time of their choosing. The
remaining broadcast time on such channel shall then revert to the
OPERATOR for its unrestricted use within the terms and conditions
of this AGREEMENT.
D. PEG Support. Upon the effective date of this
Addendum IV, the OPERATOR shall collect and remit to the CITY
on a quarterly basis, at the same time as the franchise fee, $0.35
per subscriber per month (the "PEG Fee") for PEG capital purposes
from all subscribers paying for cable service. To the extent
permitted by applicable law, the PEG Fee may be itemized on
Subscriber on Subscriber billing statements. The PEG Fee shall
not be treated as franchise fees for purposes of 47 U.S.C. § 542 or
any other purpose, and shall at no time be offset or deducted from
franchise fee payments made to the CITY under this franchise or
applicable law.
In the event any payment required by the above paragraph
Resolution No. 4530
December 9, 2009
Page 6 of 11
is not made on or before the required date, the OPERATOR, during
the period such unpaid amount is owed, shall pay additional
compensation and interest charges computed from such due date,
at an annual rate of ten percent (10%). Any interest or penalties
imposed hereunder shall not be treated as franchise fees for
purposes of 47 U.S.C. § 542 or any other purpose, and shall at no
time be offset or deducted from franchise fee payments made to
the CITY under this franchise or applicable law.
E. Subject to applicable law, so long as OPERATOR's
basic service tier is carried in an analog format, it shall continue to
cablecast the City's PEG channels in both an analog and digital
format. If OPERATOR opts to eliminate its analog cable service
and carry PEG channels solely in a digital format, it shall maintain,
at no cost to the CITY, all transmission equipment, decoders, and
electronic switching necessary to transmit the CITY's PEG video
signals from the CITY to OPERATOR and OPERATOR shall
assume all other costs necessary to ensure that PEG signals can
be transmitted on OPERATOR's digital service tier.
OPERATOR will use reasonable efforts to minimize the
movement of CITY-designated PEG Channel assignments and
maintain common Channel assignments for compatible PEG
programming. If OPERATOR proposes to change the channel
designation, for the CITY-designated PEG channel, OPERATOR
will provide at least three (3) months notice to the CITY prior to
implementing the change.
If OPERATOR makes changes in the System and related
equipment and facilities or in signal delivery technology, which
change directly cause the signal quality or transmission of PEG
channel programming or PEG services to fall below technical
standards under applicable law, OPERATOR shall, at its own
expense, provide any necessary technical assistance, transmission
equipment and provide necessary assistance so that PEG facilities
may be used as intended. PEG channels shall be transmitted in
the same quality and format as all other basic cable service
channels.
Section V. Section 8, Institutional Networks, of the Franchise is hereby
deleted. The CITY and OPERATOR have entered into a separate and
independent lease agreement regarding the Institutional Network.
Section VI. Section 11, Coverage, of the Franchise is hereby amended
to read as follows:
Resolution No. 4530
December 9, 2009
Page 7 of 11
Section 11. Coverage.
The CITY shall be provided with cable television service in the
entire franchise area. If such a condition does not now exist, the
OPERATOR shall complete such wiring and be in a position to offer
cable reception to all residents within twelve (12) months from the
effective date of this AGREEMENT. Areas subsequently annexed
shall be provided with cable availability within twelve (12) months of
Council Approval of the annexation and written notice to the
Operator Cable Service, subject to the terms in Section 13 herein.
Section VII. Section 15, Public Buildings, of the Franchise is hereby
amended to read as follows:
Section 15. Public Buildings.
The OPERATOR shall provide, without charge for
installation or monthly rate, basic service, one outlet, and converter,
if needed, at such public buildings and schools as specified in
Appendices "B" and "C" which are attached hereto and
incorporated herein as well as other such buildings that may be
constructed during the period of AGREEMENT that are passed by
cable and within one hundred and fifty (150) feet of the trunk or
distribution system.
The OPERATOR shall install and provide cable service
within 180 days of the effective date of this Addendum III, at no cost
to the CITY to the M&O Facility for Emergency Operation Center
purposes, 1305 C Street SW, Auburn, Washington 98001. Within
180 days following construction completion, OPERATOR shall
install and provide cable service at no cost to the CITY to the
"Lakeland" Fire Station for Emergency Operations Center
purposes, 182nd St. E. and 4t" Ave. E.
Upon request through the designated CITY representative, the
OPERATOR will voluntarily make available without charge, as long
as the parties agree that it is economically feasible, a standard
installation and a minimum of one outlet of Basic and Expanded
Basic Cable Services to City administrative buildings as designated
by the CITY (whether they are owned or leased), and fire station(s),
police station(s), libraries, Access facilities and K-12 public School(s).
The recipient of the service will secure any necessary right of entry.
The Cable Service will not be used for commercial purposes, and the
outlets will not be located in jail cells or areas open to the public,
except for one outlet to be located in public lobbies in CITY buildings
that will be used by the public for viewing. The CITY will take
reasonable precautions to prevent any use of the OPERATOR's
Resolution No. 4530
December 9, 2009
Page 8 of 11
Cable System in any manner that results in inappropriate use, loss or
damage to the Cable System. If additional outlets of Cable Service
are needed within such buildings, only the OPERATOR is authorized
to complete the Cable Service expansion to support the outlet
installation(s) and the building occupant will pay the standard
installation fees; provided however, the CITY may construct and
maintain additional outlets beyond OPERATOR's required outlet in
accordance with OPERATOR specifications that OPERATOR will
supply when requested by the CITY.
Section VIII. A new Section 24, Modification, is hereby added to the
Franchise to read as follows:
Section 24, Modifications.
No provision of this Franchise Agreement shall be amended or
otherwise modified, in whole or in part, except by an instrument, in
writing, duly executed by the Franchising Authority and the
OPERATOR, which amendment shall be authorized on behalf of the
Franchising Authority through the adoption of an appropriate
resolution or order by the Franchising Authority, as required by
applicable law.
Section IX. A new Section 25, Competitive Equity, is hereby added to the
Franchise to read as follows:
Section 25, Competitive Equity.
A. Any franchise granted pursuant to Chapter 13.36 of
the Auburn City Code shall be nonexclusive and shall not preclude
the CITY from granting other or further franchises or permits or
preclude the CITY from using any roads, rights-of-way, streets, or
other public properties or affect its jurisdiction over them or any part
of them, or limit the full power of the CITY to make such changes,
as the CITY shall deem necessary, including the dedication,
establishment, maintenance and improvement of all new rights-of-
way and thoroughfares and other public properties. The CITY
reserves the right to grant one (1) or more additional franchises.
The CITY shall amend a franchise, as requested by the
OPERATOR, if it grants additional franchises or similar
authorizations that contain material terms or conditions which are
substantially more favorable or less burdensome to the competitive
entity than the material terms and conditions herein. A word for
word identical franchise or authorization for a competitive entity is
not required so long as the regulatory and financial burdens on
Resolution No. 4530
December 9, 2009
Page 9 of 11
each entity are generally equivalent taking into account any
difference in the number of subscribers served, the number of PEG
channels and aggregate support provided, the level of fees and
taxes imposed, the term of the franchise, and all other
circumstances affecting the relative burdens.
B. Notwithstanding any provision to the contrary, at any
time prior to the commencement of the OPERATOR's thirty-six (36)
month renewal window provided by 47 U.S.C. § 546, that a non-
wireless facilities based entity, legally authorized by state or federal
law, makes available for purchase by Subscribers or customers,
Cable Services or multiple channels of Video Programming within
the Franchise Area without a franchise or other similar lawful
authorization granted by the CITY, then the OPERATOR shall have
a right to request Franchise amendments that relieve the
OPERATOR of regulatory burdens that create a competitive
disadvantage to the OPERATOR. In requesting amendments, the
OPERATOR shall file a petition seeking to amend the franchise.
Such petition shall: (1) indicate the presence of such wireline
competitor; and (2) identify all material terms or conditions which
are substantially more favorable or less burdensome to the
competitive entity. The CITY shall act on the petition within 120
days.
DATED THIS DAY OF , 2009
City of Auburn
Comcast of Washington IV, Inc.
Peter B. Lewis, Mayor By:
Its..
Attest:
By:
Danielle E. Daskam. City Clerk
APPROVED AS TO FORM:
Daniel B. Heid,
Resolution No. 4530
December 9, 2009
Page 10 of 11
City Attorney
Resolution No. 4530
December 9, 2009
Page 11 of 11