HomeMy WebLinkAboutITEM II-A-1. ~
,
CtTY OF ~RN u AGENDA BILL APPROVAL FORM
- WASHINGTON
Agenda Subject: Ordinance No. 6284; Resolution No. 4530; Resolution
Date: December 8, 2009
No. 4531
Department:
Attachments:
Budget Impact:
Information Services
Ordinance No. 6284; Resolution No.
4530; Resolution No. 4531
Administrative Recommendation:
City Councii conduct a public hearing on Addendum IV to the non-exclusive franchise agreement
between the City of Auburn and Comcast of Washington IV.
Background Summary:
Ordinance No. 6284 amends Chapter 13.36, CATV Systems, of Title 13, Water, Sewers, and Public
Utilities, of the Auburn City Code to more clearly define the term Gross Revenues as related to CAN
Systems.
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.
Resolution No. 4531 removes the institutional network from the franchise agreement and institutes a
lease that gives the City of Auburn full rights and access to this network at $1 per year for 50 years.
T1221-1
04.1.4, A3.14
Reviewed by Council & Committees:
Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES:
❑ Building ❑ M&O
❑ Airport 0 Finance
❑ Cemetery ❑ Mayor
❑ Hearing Examiner Z Municipal Serv.
0 Finance ❑ Parks
❑ Human Services p Planning & CD
❑ Fire ❑ Planning
❑ Park Board EDPublic Works
0 Legal ❑ Police
p Planning Comm. ❑ Other
❑ Public Works ❑ Human Resources
~ Information Services
Action:
Committee Approval: ❑Yes ❑No
Council Approval: ❑Yes ❑No Call for Public Hearing
Referred to Until
Tabled Until
Councilmember: Cerino
Staff: Rem her
Meetin Date: December 21, 2009
Item Number: II.A.1
AUBUFC.N *NtORE THAN YOU 1MAGINED
ORDINANCE NO. 6 2 8 4
AN ORDINANCE OF THE CITY OF AUBURN,
WASHINGTON, AMENDING CHAPTER 13.36, CATV
SYSTEMS, OF TITLE 13, WATER, SEWERS, AND
PUBLIC UTILITIES, OF THE AUBURN CITY CODE
WHEREAS, Chapter 13.36, CATV Systems, of Title 13, Water Sewers,
and Public Utilities, is the code that governs the application of Cable
Communications Systems; and
WHEREAS, changing circumstances make it necessary to amend the
existing Chapter 13.36.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DOES ORDAIN AS FOLLOWS:
Section 1. Amendment to City Code. Subsection 13.36.020 R of
Chapter 13.36, "CATV Systems" of Title 13, entitled "Gross Revenues" is hereby
amended so that the definition of "Gross Revenues" reads as follows:
R. "Gross Revenues" means any and all revenues
ro~.`Ge'vZd_derived directly or indirectly ,
> >
r
i
6UGh f pFevwded f
. by Franchisee or by Franchisee"s Affiliates, as defined in the
federal Cable Act frorn the operatian of the Franchisee's Cable Svstem to
.~rovide Cable Services in the Franchise Area. Gross Revenues include, by wav
af illustration and not limitation monthly and other fees charqed Subscribers for
Cable Services includincl Basic Service Expanded Basic Service, any expanded
Tiers of Cable Service other Tiers of Cable Service aptianal Premium Service,
Video on Demand pay_per-view, per-proqram Channels, Cable Service
installatian disconnectionL reconnectian and chanqe-in-service fees, Leased
Access Channel fees remote control rental fees, late fees and _administrative
fees cansideration received by the Franchisee from praqrammers for carriaqe of
Cable Services on the Cable System and recognized as revenue under generally
accepted accountinq principles (GAAP) revenues from rentals of converters or
other Cable System equipment advertisinq sales revenues (includinq local and a
Ordinance No. 6284
December 7, 2009
Page 1 of 3
pro rata share of regianaf and national advertising carried an the Cable System in
the Franchise Area) net af commissions due tn Franchisee's unaffiliated
advertisinq aqencies that arrange for the advertisinq buy, revenues frnm proqram
quides. additional autlet fees, revenue from the sale or carriage of other Cable
Services, revenues from home shopping, and a fairlv appartioned percentage of
fees associated with bundled services (i.e. late fees, NSF fees, etc.). Gross
Revenues shall not include (i) Bad Debt, provided, however, that all or part of any
such Bad Qebt that is written off but subsequently collected shall be included in
Grass Revenues in the period collected; or (ii) anv taxes on services furnished by
the Franchisee that are imposed directly an any Subscriber or user by the State,
Grantar or other governmental unit and that are collected by the Franchisee on
behalf of said governmental unit; or (iii) the PEG Fee as required bv this
Franchise. The Franchise Fees are nat a tax and are therefore included in Gross
Revenues.
This definition shall be construed so as to include all Gross Revenues to
the maximum extent permitted b f~ ederal and state law, except to the extent
specifically excluded in this sectian, and encompasses revenues that may
develop in the futureLwhether or nat anticipated. If a statutory change in state or
federal law or a decision of the FCC or a court of competent jurisdiction expands
or contracts the cateqaries of revenue available to the City for the Franchise Fee
assessment beyond those permitted under this definition as af the Effective Date,
this Franchise may be amended to include or exclude any such cateqory of
revenue in the definition af Grass Revenues under this Franchise, provided that
the City amends the Franchises of all other similarly situated multichannel video
provider over which the City has i,urisdiction and authority to impose such fees.
Section 2. Implementation. The Mayor is hereby authorized to
implement such administrative procedures as may be necessary to carry out the
directions of this legislation.
Section 3. Severabilitv. The provisions of this ordinance are declared
to be separate and severable. The invalidity of any clause, sentence, paragraph,
subdivision, section or portion of this ordinance, or the invalidity of the application
thereof to any person or circumstance shall not affect the validity of the
remainder of this ordinance, or the validity of its application to other persons or
circumstances.
Ordinance No. 6284
December 7, 2009
Page 2 of 3
Section 4. Effective date. This Ordinance shall take effect and be
in force five days from and after its passage, approval and publication as
provided by law.
INTRODUCED:
PASSED:
APPROVED:
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
S'r_'~CL_1 /I
r/'~r AR`RM:
B. I-Iv~id, City
Published:
Ordinance No. 6284
December 7, 2009
Page 3 of 3
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 15, 2009
Page 1 of 3
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 15, 2009
Page2of3
Dated and Signed this day of , 2009.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
APPROVED,65-TO FOR
Daniel B. HeiA CitVAttorn
Resolution No. 4530
December 15, 2009
Page 3 of 3
EXHIBIT `A'
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
Exhibit "A", Resolution No. 4530
December 2, 2009
Page 1 of 7
EXHIBIT `A'
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.
Exhibit "A", Resolution No. 4530
December 2, 2009
Page 2 of 7
EXHIBIT `A'
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
Exhibit "A", Resolution No. 4530
December 2, 2009
Page 3 of 7
EXHIBIT `A'
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:
Exhibit "A", Resolution No. 4530
December 2, 2009
Page 4 of 7
EXHIBIT `A'
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, 182"d 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
Exhibit "A", Resolution No. 4530
December 2, 2009
Page 5 of 7
EXHIBIT 'A'
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 franchisee,
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 each entity are
Exhibit "A", Resolution No. 4530
December 2, 2009
Page 6 of 7
EXHIBIT `A'
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 a franchisee'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 a franchisee shall have a
right to request Franchise amendments that relieve the franchisee
of regulatory burdens that create a competitive disadvantage to the
franchisee. In requesting amendments, the franchisee 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
APP VED,QS TO FORM:
~
City Attorney
Exhibit "A", Resolution No. 4530
December 2, 2009
Page 7 of 7
RESOLUTION NO. 4 5 3 1
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE AN
INSTITUTIONAL NETWORK LEASE AGREEMENT
BETWEEN THE CITY OF AUBURN AND COMCAST
OF WASHINGTON IV, INC. AND COMCAST OF
CALIFORNIA/COLORADO/WASHINGTON I, INC.
WHEREAS, TCI Cablevision of Washington, Inc. ("TCI") and the City
entered into a franchise agreement, through Resolution No. 2409, on May 3,
1993 (the "Franchise Agreement"), which became effective on July 1, 1993; and
WHEREAS, pursuant to the terms of the Franchise Agreement, a cable
system upgrade, including a bi-directional I-Net was to be completed by
September 13, 1997; and
WHEREAS, TCI was not able to upgrade the cable system as required by
the Franchise Agreement, which subjected TCI to significant penalties; and
WHEREAS, TCI and the City negotiated a Franchise Extension
Agreement which granted a 24-month extension of the deadline to meet its
obligations and in exchange TCI agreed in part to install a fiber-optic institutional
network (the "I-Net") for the City's sole use; and
WHEREAS, the Franchise Extension Agreement was heard by the City's
Committee of the Whole and approved by the City Council through Resolution
No. 2972 on June 15, 1998 and accepted by TCI on July 13, 1998; and
WHEREAS, the I-Net was initially completed in or about 1999; and
Resolution No. 4531
December 15, 2009
Page 1 of 3
WHEREAS, Comcast now holds the Franchise Agreement and a dispute
between Comcast and the City has arisen over the ownership of the TCI-
constructed I-Net, which the parties desire to amicably resolve.
WHEREAS, the City Council finds that the terms set forth in the attached
Institutional Network Lease Agreement 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 an Institutional Network Lease Agreement
Between the City of Auburn and Comcast of Washington IV, Inc. and Comcast of
California/Colorado/Washington I, Inc., 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.
Dated and Signed this day of , 2009.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
Resolution No. 4531
December 15, 2009
Page 2 of 3
ATTEST:
Danielle E. Daskam, City Clerk
APPROVERAS TO FORM:
aniel B. I-eid, Cit~1'Afto0qey
Resolution No. 4531
December 15, 2009
Page 3 of 3
EXHIBIT `A'
Institutional Network Lease Agreement
This Institutional Network Lease Agreement (the "Lease Agreement") is
entered into this day of , 2010, by and between
the City of Auburn, Washington (the "City") and Comcast of Washington IV, Inc.
& Comcast of California/Colorado/Washington I, Inc. ("Comcast").
RECITALS
WHEREAS, TCI Cablevision of Washington, Inc. ("TCI") and the City
entered into a franchise agreement, through Resolution No. 2409, on May 3,
1993 (the "Franchise Agreement"), which became effective on July 1, 1993; and
WHEREAS, pursuant to the terms of the Franchise Agreement, a cable
system upgrade, including a bi-directional I-Net was to be completed by
September 13, 1997; and
WHEREAS, TCI was not able to upgrade the cable system as required by
the Franchise Agreement, which subjected TCI to significant penalties; and
WHEREAS, TCI and the City negotiated a Franchise Extension
Agreement which granted a 24-month extension of the deadline to meet its
obligations and in exchange TCI agreed in part to install a fiber-optic institutional
network (the "I-Net") for the City's sole use; and
WHEREAS, the Franchise Extension Agreement was heard by the City's
Committee of the Whole and approved by the City Council through Resolution
No. 2972 on June 15, 1998 and accepted by TCI on July 13, 1998; and
WHEREAS, the I-Net was initially completed in or about 1999 [NOTE:
VERIFY DATE]; and
WHEREAS, Comcast now holds the Franchise Agreement and a dispute
between Comcast and the City has arisen over the ownership of the TCI-
constructed I-Net, which the parties desire to amicably resolve.
NOW THEREFORE, in consideration of the foregoing, and of the
promises and covenants contained in this Lease Agreement, the parties agree as
follows:
Lease
1. Lease of Institutional Network. Subject to the terms and conditions of
this Lease Agreement, Comcast hereby leases to the City the "Institutional
Network" (I-Net) as described on Exhibit A, attached hereto and incorporated
herewith. This Lease Agreement is freely and voluntarily entered into by the
EXHIBIT `A'
Parties, without any duress or coercion, and after each party has consulted with
its counsel. Each party hereto has carefully and completely read all of the terms
and provisions of this Lease Agreement.
2. Lease Term. The lease shall commence upon the full execution of the
Lease Agreement by the City and Comcast and shall terminate on December 31,
2058. Unless either party notifies the other prior to the end of the Lease
Agreement term, this Lease Agreement shall be renewed automatically for
additional subsequent 5-year terms under the same terms and conditions
contained herein.
3. Payments. The City shall pay Comcast $1.00 per year for 50 years
commencing upon the effective date of this agreement, for the use and
maintenance of the Institutional Network. The Parties agree that this Lease
Agreement is not a cable franchising obligation and payments set forth in this
Lease Agreement shall not be treated as franchise fees for purposes of 47
U.S.C. § 542, and shall at no time be offset against or deducted from franchise
fee payments made to the City under their current Franchise or any renewed
franchise.
4. Use of I-Net.
4.1 Upon the effective date, the City shall have sole exclusive use of all I-Net
facilities, equipment and capacity outside the physical site termination panels and
shall only use the I-Net for non-commercial uses.
4.2 For the purposes of this Lease Agreement, non-commercial means internal
network communications from and among government agencies, schools, libraries
and other public agencies, which subject to other limitations herein, includes
encrypted wireless, internet, telecommunications, information, voice, video and
data services. Unless otherwise agreed upon by Comcast and the City,
noncommercial internal network communications excludes any other uses, such as
the sub-leasing, gifting, or reselling I-Net capacity to a third party for any purpose.
4.3 Unless mutually agreed upon by the City, Comcast may not utilize unused
capacity on the I-Net.
4.4 Upon request from Comcast, the City shall provide a report identifying and
certifying the City's authorized non-commercial users of the I-net. Comcast shall
have the right to verify the fiber connection points outside the physical site
termination panels for all users on the I-net to validate the City's report. If there are
discrepancies found, both parties shall use the dispute resolution procedure under
this agreement to find resolve to the matter.
5. Rules and Requlations. Except as otherwise provided herein, the terms
and conditions of Comcast's cable franchise, authorizing cable service within the
EXHIBIT'A'
City, as amended and/or renewed throughout the term of this Lease Agreement,
shall apply for all construction, maintenance, relocation, and safety actions.
6. Maintenance of Institutional Network. Throughout the term of this
Lease, the City shall be responsible for paying Comcast's ongoing cost of
maintenance for the I-Net and Comcast shall, at the City's request, perform
requested maintenance to the I-Net on a time-and-materials basis. Comcast
shall only perform this maintenance if first requested by the City, however, in
emergency conditions, such as an emergency resulting from a windstorm or an
unplanned fiber cut, Comcast is authorized, when conducting its own emergency
work, to effect similar emergency repair work on the I-Net, and the City will
reimburse Comcast for its expenses, based on time and materials, to conduct
these repairs to the I-Net.
7. I-Net Repair Calls and Escalation. The City acknowledges that Comcast
does not actively monitor the signal transmission upon the I-Net, and has no
notice of a service interruption or outages but for City-initiated notification. For
any necessary repairs of the I-Net as determined by the City's authorized users,
they shall notify the City's information technology ("IT") representative, who shall
in turn, contact Comcast's designated local Network Operations Center (NOC).
Comcast shall respond to any repair request within four (4) hours of receipt of
notification at the NOC and shall actively begin working on the problem until it is
resolved. In order to document the repair work on the I-Net, Comcast will use its
normal trouble ticket processes. In the event of an inability to initially resolve the
I-Net problems, Comcast shall follow its normal escalation procedures for
correcting fiber interruptions and/or outages. At the City's request, Comcast shall
also notify the City and provide documentation of the I-Net problem resolution.
Such documentation shall include, among other things, a description of the cause
and resolution of the problem for each I-Net trouble ticket.
8. I-Net Ownership & Electronics.
8.1 The City agrees that Comcast has clear and unencumbered title to the I-
Net outside the physical site termination panels.
8.2 Comcast shall be responsible for supplying and installing the I-Net and
associated facilities and equipment, to the specified site termination panels only,
thereby providing a pathway for I-Net communications between all sites.
8.3 The City shall be responsible for providing any "active" equipment or
components required for I-Net use, including but not limited to computers,
network cards, optronics, electronics, and equipment racks, at the City's sole
expense.
8.4 The City may not access any part of the I-Net and associated facilities and
equipment outside the site termination panels, and the City's permitted access
EXHIBIT `A'
shall in no event extend beyond the City's side of the termination panel. The City
shall not attach any equipment or otherwise modify the I-Net in any way that will
interfere with the signal quality and the normal operation of Comcast's cable
system. Except as provided in this Lease Agreement, Comcast shall not
interFere with the signal quality and the normal operation of the I-Net.
9. Modify, Splicinq and Attachment. The City may, using the existing I-Net
capacity and at its cost, request Comcast modify, splice into, or attach to, the I-
Net, outside the site termination panels/demark, to connect to additional City-
authorized facilities. Comcast agrees to cooperate with the City to accomplish
any modification, splicing or attachments to the I-Net.
10. Relocation. When electric and telephone utility wiring in an area of the
City are relocated underground, Comcast shall be responsible for relocating the
I-Net at the same time it places it's cable facilities underground.
11. Indemnification.
11.1 Subject to Washington Statutes, municipal limits on liability and all
immunities the City may enjoy, including the limitation of payment to only those
liabilities that the City would have if it was acting by itself and could assert all of
its immunities, the City shall indemnify and hold harmless Comcast, its
employees, officers and directors, and its Affiliates and employees, officers and
directors thereof, from any liability (including reasonable attorneys' fees) for
damages arising out of, or resulting from, the City's use of the Institutional
Network, or from the use by any Person authorized by the City to use the
Institutional Network.
11.2 Comcast shall indemnify, defend and hold harmless the City, and its
officers, boards, committees, commissions, elected and appointed officials,
employees, volunteers and agents from and against all liability (including
reasonable attorneys' fees), damages and penalties which they may legally be
required to pay as a result of: (i) Comcast's perFormance under this Agreement;
and (ii) Comcast's unauthorized transmission of a signal over either of the
Institutional Network, or as a result of Comcast's unauthorized modification of
City signals or signals transmitted by Authorized Users.
12. Successors and Assiqns. This Lease Agreement, and the terms,
covenants, warrantees and conditions hereof, shall be binding upon and inure to
the benefit of the parties hereto and their respective authorized heirs,
beneficiaries, administrators, executors, receivers, trustees, successors and
assigns. Unless otherwise expressly stated herein, nothing in this Agreement
shall be construed as an authorization or right of any party to transfer or assign
its rights in or delegate its duties under this Agreement without the prior written
consent of the other party, except that any consent of the City to the transfer or
EXHIBIT `A'
change of control of the Franchise Ordinance shall be deemed a consent to the
transfer or assignment of this Agreement.
13. Notice. Unless otherwise agreed to by the parties, any notice provided for
under this Lease Agreement shall be sufficient if in writing and delivered
personally to the following addressee or deposited in the United States mail,
postage prepaid, certified mail, return receipt requested, addressed as follows, or
to such other address as the receiving party specifies in writing:
(a) Notices to Comcast shall be mailed to:
Comcast
4020 Auburn Way N
Auburn, WA 98002
Attention: Director, Franchising and Government Affairs
With a non-binding courtesy copy to:
Comcast
15815 25th Ave W
Lynnwood, WA 98087
Attention: Franchising and Government Affairs
(b) Notices to the City shall be mailed to:
Lorrie Rempher
City of Auburn
Auburn City Hall
25 W. Main Street
Auburn, WA 98001
with a copy to:
Auburn City Clerk
City of Auburn
Auburn City Hall
25 W. Main Street
Auburn, WA 98001
(c) Upon request by the City, Comcast shall provide a list of individual(s)
contacts associated with the upkeep of the I-Net.
14. Counterparts. This Lease Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument; and in pleading or proving any provision
of this Lease Agreement, it shall not be necessary to produce more than one
complete set of such counterparts.
EXHIBIT `A'
15. Captions. All headings contained in this Lease Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of the Lease Agreement. Whenever used herein the singular
number shall include the plural, the plural shall include the singular, and the use
of any gender shall include all genders.
16. Governinq Law and Bindinq Effect. This Agreement shall be construed
and enforced in accordance with, and the validity and perFormance hereof shall
be governed by, the laws of the State of Washington. This Agreement shall bind
and inure to the benefit of each of the parties and their successors and permitted
assigns. Comcast will not take any action to challenge any provision of this
Lease Agreement as contrary to law or unenforceable at any time.
17. Waivers and Amendments. This Lease Agreement may not be
amended nor shall any waiver, change, modification, consent or discharge be
effected, except by an instrument in writing adopted, in the case of an
amendment, by each party and, in the case of a waiver, consent or discharge,
executed by the party against whom enforcement of such instrument is sought.
Any consent by either party to, or waiver of, a breach by the other party shall not
constitute a waiver or consent to any subsequent or different breach. If either
party shall fail to enforce a breach or this Lease Agreement by the other party,
such failure to enforce shall not be considered a consent to or a waiver of said
breach or any subsequent breach for any purpose whatsoever.
18. No Third Partv Beneficiaries. For purposes of this Lease Agreement,
including its intended operation and effect, the parties specifically agree and
contract that: (1) the Agreement only affects matte rs/d isp utes between the
parties to this Lease Agreement and is in no way intended by the parties to
benefit or otherwise affect any third person or entity notwithstanding the fact that
such third person or entity may be in a contractual relationship with the City or
Comcast, or both; and (2) the terms of this Lease Agreement are not intended to
release, either by contract or by operation of law, any third person or entity from
obligations owed by them to either the City or Comcast.
19. Entire Aqreement. This Lease Agreement, including the recitals and
schedule herein, contains the entire agreement of the parties and supersedes all
other agreements, oral or written, heretofore made with respect to the subject
matter hereof and the transactions contemplated hereby.
20. Recitals. The recitals herein are incorporated by reference into this
Lease Agreement and are made a part hereof.
21. Assiqnment. This Lease Agreement and any rights or duties hereunder
shall not be assigned by either party without the express written consent of the
other party, unless assigned to a parent, affiliate, or subsidiary company.
EXHIBIT `A'
22. Bindinq on Successors. Except as otherwise provided herein, this
Lease Agreement shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and permitted assigns.
23. Severability. In the event any one (1) or more of the provisions of this
Agreement shall for any reason be held to be invalid or unenforceable, the
remaining provisions of this Agreement shall be unimpaired, and shall remain in
effect and binding upon the parties, unless such change materially alters either
parties ability to perForm the material obligations of this Agreement, in which case
the parties hereto shall negotiate in good faith to modify this Lease Agreement so
as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the greatest extent possible.
24. Force Maieure. Neither party shall be liable for any failure of
performance (including any delay in restoration of service) hereunder due to
causes beyond its reasonable control including, but not limited to, acts of God,
fire, explosion, vandalism, storm, or other similar catastrophes; any law, order,
regulation, direction, decision, action or request of the United States government
or the State of Washington; insurrection; riots or other civil disturbances; or wars.
25. Dispute Resolution. In the event one party to this agreement believes
there has been a breach by the other party, the non-offending party shall notify
the other party in writing with specific details regarding the exact nature of the
alleged breach. The offending party shall have the opportunity to respond to the
accusation or cure the alleged breach within 30 days following the receipt of the
notice. If the offending party contests any part of the alleged breach set forth in
the notice, the parties shall meet to discuss the dispute or submit the matter to
mediation administered by the American Arbitration Association under its
Commercial Mediation Procedures. The parties shall have 60 days to resolve
the dispute and in the event that resolution is unsuccessful, the parties shall
submit the matter to arbitration administered by the American Arbitration
Association under its Commercial Arbitration Rules. Either party may appeal the
arbitration award as allowed by law.
26. Termination. The City in its sole discretion may terminate this Lease
Agreement, by notice given in the manner contained herein.
27. Relation to Franchise. This Lease Agreement is separate and apart
from any renewed cable franchise and this Lease Agreement shall supersede
any I-Net obligations in the existing franchise and there shall be no I-Net
obligation in a renewed franchise through 2058.
28. Reopeners.
28.1 Grounds. The occurrence of any of the following shall be grounds for the
City or Comcast to reopen this Lease Agreement:
EXHIBIT `A'
(a) Any court action that invalidates or substantially negates the effect of any
material provision of this Lease Agreement.
(b) Any state or federal legislation that invalidates or substantially negates the
effect of any material provision of this Lease Agreement.
28.2 Reopener Procedure.
(a) The City or Comcast shall make a determination that grounds exist to
implement the reopener provisions of this section and shall formally notify the
other party in writing and in reasonable detail of that determination, the grounds
for it, and the proposed modification deemed necessary to address the event
giving rise to the reopener.
(b) For a period of ninety (90) days following receipt of the notice, Comcast and
the City shall seek to negotiate an amendment to the Lease Agreement reflecting
the grounds identified in notice of reopener.
(c) If Comcast and the City are unable to reach agreement within the ninety (90)
day period, the matter may be submitted to mediation, using
the mediation procedure set forth in Section 25. If inediation does not resolve
the issue, then the parties shall seek direct judicial resolution.
29. Periodic Evaluation. Every three years during the term of this Lease
Agreement either party may require evaluation session(s) upon thirty (30) days
written notice to the other party. Topics which may be discussed at any
evaluation session may include, but are not limited to, the use and maintenance
of the I-Net, application of new technologies, system perFormance, facilities and
support, amendments to this Lease Agreement, judicial rulings, legislation, and
any other topics that are relevant to the I-Net. As a result of a periodic review or
evaluation session(s), upon notification from either party, both parties shall meet
and undertake good faith efforts to reach mutual agreement on proposed
amendments to the terms and conditions of this Lease Agreement. If mutual
agreement is obtained, both parties shall amend this agreement as allowed
under Section 17.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first written above.
City of Auburn Comcast of Washington IV, Inc.
Peter B. Lewis , Mayor
By:
Its:
EXHIBIT `A'
Attest:
Comcast of California/
Colorado/V1lashington I, Inc.
Danielle E. Daskam. City Clerk By:
Its:
APPROVED AS TO FO
Daniel B. Te'i
City Attorney