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CITYOF__
BU~ IRN AGENDA BILL APPROVAL FORM
WA S H 1 N G TO N
Agenda Subject: Resolution No. 4530 Date: December 8, 2009
Department: Attachments: Budget Impact:
Information Services Resolution No. 4530
Administrative Recommendation:
City Council 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.
T0104 -2
04.1.4, A3:14
Reviewed by Council & Committees: Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O
❑ Airport 0 Finance O Cemetery ❑ Mayor
❑ Hearing Examiner Z Municipal Serv. Z Finance ❑ Parks
❑ Human Services ❑ Planning & CD ❑ Fire ❑ Planning
❑ Park Board CgPublic Works 0 Legal ❑ Police
❑ Planning Comm. ❑ Other 0 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: Peloza Staff: Rem her
Meetin Date: Januar 4, 2009 Item Number: VI11.6.1
AUBURN * MOKE THAN YOU 1MAGINED
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
Page 2 of 3 ,
Dated and Signed this day of 12009.
CITY OF AUBURN
' PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
c
APPR6'VED TO FOR ~
Daniel B. Fleid--, Cit Attorn \
'
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 Councif 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 br
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. I
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 S TO FORM:
,
/ •
niel B.
City Attorney
Exhibit "A", Resolution No. 4530
December 2, 2009
Page 7 of 7
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 11 to the Franchise which was approved Ju'ne 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. ("ComcasY') 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
Page 2 of 3
Dated and Signed this day of , 2009.
CITY OF AUBURN
' PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
;
APPR~'`VED TO FOR ~
\
Daniel B. He-[d-, Cit~`Aftornlly
'
Resolution No. 4530
December 15, 2009
Page 3 of 3