HomeMy WebLinkAbout5431 RESOLUTION NO. 5431
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO
EXECUTE A FRANCHISE AGREEMENT BETWEEN THE
CITY OF AUBURN AND COMCAST CABLE
COMMUNICATIONS, LLC AND COMCAST CABLE
COMMUNICATIONS MANAGEMENT, LLC, A
PENNSYLVANIA CORPORATION
WHEREAS, Comcast Cable Communications, LLC & Comcast Cable
Communications Management, LLC ("Comcast") has applied to the City of Auburn ("City")
for renewal of a non-exclusive Franchise for the right of entry, use, and occupation of
certain public right(s)-of-way within the City, expressly to install, construct, erect, operate,
maintain, repair, relocate and remove its facilities in, on, over, under, along and/or across
those right(s)-of-way; and
WHEREAS, the City is authorized by Revised Code of Washington 35A.47.040
and Auburn City Code (ACC) 13.36.010 et seq. and ACC 20.06.010 to grant a non-
exclusive franchise for the use of public streets, bridges, or other public ways for the
transmission and distribution of electrical energy, signals and other methods of
communication, including cable telecommunications and cable television; and
WHEREAS, following proper notice, the City Council held a public hearing on
Comcast's request for a Franchise, at which time representatives of Comcast and
interested citizens were heard in a full public proceeding affording opportunity for
comment by any and all persons desiring to be heard; and
WHEREAS, from information presented at such public hearing, and from facts and
circumstances developed or discovered through independent study and investigation, the
City Council now deems it appropriate and in the best interest of the City and its
inhabitants that the franchise be granted to Comcast.
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Franchise No. FRN19-0012
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN
WASHINGTON, resolves as follows:
Section 1. The Mayor is authorized to execute a Cable Television Franchise
Agreement with Comcast Cable Communications, LLC and Comcast Cable
Communications Management, LLC in substantially the same form as the Agreement
attached as Exhibit A.
Section 2. The Mayor is authorized to implement those administrative
procedures necessary to carry out the directives of this legislation.
Section 3. This Resolution will take effect and be in full force on passage and
signatures.
Dated and Signed this. day of , 2019.
CITY OF AUBURN
.. .► A\
ANCY B A 'I/ , MAYO'
ATTEST: APP'`;ED AS TO FORM:
Ilk
Shawn Campbell, MMC, City Clerk Steven L. Gross, City A • ney
Resolution No. 5431
Franchise No. FRN 19-0012
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CABLE FRANCHISE AGREEMENT
Between the City of Auburn, Washington, and Comcast Cable Communications, LLC &
Comcast Cable Communications Management,LLC d/b/a Comcast.
This Cable Franchise Agreement("Franchise") is made and entered into by and between The City
of Auburn, Washington, a municipal corporation (City), and Comcast Cable Communications,
LLC & Comcast Cable Communications Management, LLC d/b/a Comcast, a Pennsylvania
corporation(collectively, "Grantee"). The City and Grantee are sometimes referred to hereinafter
collectively as the"Parties."
WHEREAS,the City is authorized by 47 USC § 541 et seq., RCW 35A.47.040,ACC
20.06.010 and ACC Chapter 13.36 to grant and renew nonexclusive cable franchise agreements
for the installation, operation, and maintenance of cable television systems and otherwise
regulate cable communications services within the City's incorporated boundary; and
WHEREAS,the City has reviewed Grantee's performance under the prior franchise and the
quality of service during the prior franchise term,has identified the future cable-related needs and
interests of the City and its citizens,and has determined that Grantee's plans for operating and
maintaining its Cable System are adequate; and
WHEREAS,the public has had adequate notice and opportunity to comment on this
Franchise during a public proceeding; and
WHEREAS,the Mayor and City Council has determined that is in the best interests of,
and consistent with,the health, safety, and welfare of the citizens of the City to grant a franchise
to Grantee to use public rights-of-way for the purposes specified in this Franchise and on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises made herein, and other
good and valuable consideration,the receipt and adequacy of which are hereby acknowledged,
the Parties do hereby agree as follows:
SECTION 1: PRINCIPLES AND INTENT OF THE CITY
The following provisions are statements of the City's intent in entering into this Franchise,but do
not necessarily reflect Grantee's intent and shall not supplant or modify specific provisions of the
Franchise:
1.1. Ensure that Auburn stays at the forefront of cable service by keeping the Cable System up
to date with features meeting the current and future cable-related needs and interests of the
community;
1.2. Encourage the widest feasible scope and diversity of Programming and other services to all
City residents consistent with community needs and interests;
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1.3. Encourage competitive, affordable, and equal access to advanced communications services
of all kinds to residents and businesses of the City of Auburn on a non-discriminatory
basis;
1.4. Ensure that Auburn residents have the opportunity to view public, educational, and
governmental Programming;
1.5. Ensure that rates and charges for cable Programming, equipment, and services provided
over the Cable System are affordable and consistent with federal standards;
1.6. Ensure that Auburn residents receive high quality customer service;
1.7. Ensure that the City receives appropriate compensation for the use of its facilities and
property and that installation and maintenance of cable Facilities comply with all
applicable City regulations,and do not interfere with the City's legitimate use of its own
facilities and property;
1.8. Encourage competition among Cable Operators and between Cable Operators and other
providers of communications services;
1.9. Protect the City's interests and the health, safety, and welfare of its residents; and
1.10. Provide for timely mandatory Government Access to all Cable Systems in times of civil
emergency.
SECTION 2: DEFINITIONS
For the purpose of this Franchise,the following terms,phrases, and their derivations shall have
the meanings given below unless the context clearly mandates a different interpretation. Where
the context so indicates,the present tense shall imply the future tense,words in plural include the
singular, and words in singular include the plural. The word"shall"is always mandatory, not
merely directory,and the word"may" is discretionary. In the event that the meaning of any word
or phrase not defined in this Section is uncertain,the definitions contained in FCC rules and
regulations shall apply.
2.1 "Access"means the availability for Non-Commercial use by various governmental and
educational agencies, institutions, and organizations in the community, including the City
and its designees, of a particular Channel on the Cable System to distribute programming to
Subscribers,as permitted under applicable law.
A. "Educational Access"means Access where Schools are the primary users having editorial
control over programming and services.
B. "Government Access"means Access where governmental institutions or their designees
are the primary users having editorial control over programming and services.
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C. "Public Access" means Access for the public, including organizations, groups and
individuals.
2.2 "Access Channel"means any Channel or portion of a Channel on a Cable System required
by the Franchise to be set aside by the Grantee for public, education, or governmental use.
2.3 "Affiliated Entity"means,when used in connection with Grantee, any Person who owns or
controls, is owned by or controlled by, or is under common ownership or control with
Grantee.
2.4 "Basic Service" means the lowest Tier of Cable Service that includes, at a minimum,the
retransmission of local television broadcast signals.
2.5 "Cable Act"shall mean the Communications Act of 1934, including the Cable
Communications Policy Act of 1984, as amended by the Cable Television Consumer
Protection and Competition Act of 1992, and the Telecommunications Act of 1996, any
and amendments thereto.
2.6 "Cable Operator" means any Person or group of Persons(A)who provides Cable Services
over a Cable System and directly or through one or more affiliates owns a significant
interest in such Cable System, or(B)who otherwise controls or,through any arrangement,
is responsible for the management and operation of such a Cable System.
2.7 "Cable Service"means
A. The one-way transmission to Subscribers of(1) Video Programming or(2) other
Programming service, and
B. Subscriber interaction, if any,that is required for the selection or use of such Video
Programming or other Programming service.
2.8 "Cable System"means Grantee's Facilities within the Franchise Area, consisting of a set of
closed transmission paths and associated signal generation,reception and control
equipment that is designed to provide Cable Service,which includes Video Programming,
and which is provided to multiple Subscribers within a community,but such term does not
include:
A. A facility that serves only to retransmit the television signals of one or more television
broadcast stations;
B. A facility that serves Subscribers without using any public right-of-way;
C. A facility of a common carrier which is subject, in whole or in part,to the provisions of
Title II of the federal Communications Act(47 U.S.C. § 201 et seq.),except that such
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facility shall be considered a Cable System(other than for purposes of 47 U.S.C. 541(c))
to the extent such facility is used in the transmission of Video Programming directly to
Subscribers,unless the extent of such use is solely to provide interactive on-demand
services;
D. An open video system that complies with 47 U.S.C. § 573; or
E. Any facilities of any electric utility used solely for operating its electric utility systems.
2.9 "Channel"means a portion of the electromagnetic frequency spectrum which is used in a
Cable System and which is capable of delivering a television channel,whether delivered in
an analog or digital format.
2.10 "City Council" means the legislative body of the City of Auburn.
2.11 "Complaint"means a Subscriber's verbal or written contact with the Grantee to express a
grievance or dissatisfaction concerning Cable Service that are not within the regulatory
control of the City and does not include issues that are promptly resolved to the
Subscriber's satisfaction.
2.12 "Designated Access Provider"means the entity or entities designated by the City to
manage or co-manage the Access Channel and facilities, and may include the City as a
Designated Access Provider.
2.13 "Demarcation Point" means the physical point at which the Cable System enters a
Subscriber's home or building.
2.14 "Document" or"Records" means written or graphic materials, however produced or
reproduced, or any other tangible permanent documents, including those maintained by
computer or other electronic or digital means,maintained by the Grantee in the ordinary
course of conducting its business.
2.15 "Dwelling Unit" means any building, or portion thereof,that has independent living
facilities, including provisions for cooking,sanitation and sleeping,designed for residential
occupancy.
2.16 "Effective Date"means the Effective Date of this Franchise pursuant to subsection 3.4.
2.17 "Facility"means any distribution or component of the Cable System.
2.18 "FCC"means the Federal Communications Commission or its lawful successor.
2.19 "Franchise Area"means the area within the jurisdictional boundaries of the City, including
any areas annexed by the City during the term of this Franchise.
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2.20 "Franchise Fee"means consideration paid by Grantee for the privilege to construct and/or
operate a Cable System in the Franchise Area as set forth in accordance with Section 622
of the Cable Act.
2.21 "Gross Revenues"means, for purposes of Franchise Fee calculations, all revenue received
by the Grantee, in whatever form and from all sources,derived from the operation of the
Grantee's Cable System to provide Cable Services, in the Franchise Area.
A. Gross Revenues include, by way of illustration and not limitation,monthly fees charged
to Subscribers for Cable Services, including Basic Service and all other Tiers of Cable
Service, Pay-Per-View Service, Cable Service installation, disconnection, change-in-
service and reconnection fees, Leased Access Channel fees, late fees,payments received
by Grantee from programmers for carriage of Cable Services on the Cable System and
recognized as revenue under generally accepted accounting principles (GAAP),revenues
from rentals of Cable System equipment such as converters, advertising revenues,
advertising sales commissions if recognized as revenue under GAAP, additional outlet
fees, Franchise Fees, and revenues from home shopping Channels.
B. Gross Revenues shall not include Bad Debt,provided that all or part of any such Bad
Debt that is written off but subsequently collected shall be included in Gross Revenues in
the period collected,or revenues received from telecommunications services.
C. Gross Revenues shall be determined without deduction for(1)any operating expense; (2)
any accrual; or(3)any other expenditure,regardless of whether such expense, accrual or
expenditure reflects a cash payment, and revenue shall be counted only once in
determining Gross Revenues.
D. Gross Revenues also does not include capital contributions,taxes on services furnished
by Grantee which are imposed directly on any Subscriber or user by the State, City or
other governmental unit and which are collected by Grantee on behalf of said
governmental unit, excluding Franchise Fees.
E. This definition shall be construed so as to include all Gross Revenues to the maximum
extent permitted by federal and State law,except to the extent specifically excluded in
this subsection,and encompasses revenues that may develop in the future, whether or not
anticipated.
F. If a statutory change in State or federal law, or a decision of the FCC or a court of
competent jurisdiction expands the categories of revenue available to the City for the
Franchise Fee assessment beyond those permitted under this definition as of the Effective
Date,that change shall automatically be included in the definition of Gross Revenues
under this Franchise,provided that the City imposes the same requirement upon any other
similarly situated multichannel video provider over which the City has jurisdiction and
authority to impose such fees.
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2.22 "Headend" means Grantee's primary facility for signal reception and dissemination on the
Cable System, including cables, antennas,wires, satellite dishes, monitors, switchers,
modulators,processors, and other related equipment.
2.23 "Leased Access Channel"means a Channel or portion of a Channel made available by
Grantee for Programming by others for a fee.
2.24 "Liquidated Damages"means any requirement imposed on the Grantee to pay specified
sums to the City as a result of performance deficiencies and/or Franchise violations,as
described in Section 13.8.
2.25 "Non-Cable Services"means any service that is distributed over the Cable System, other
than a Cable Service.
2.26 "Normal Business Hours"means those hours during which most similar businesses in the
community are open to serve customers.
2.27 "Normal Operating Conditions"means service conditions within the control of the Grantee.
Those conditions that are not within the control of the Grantee include, but are not limited
to, natural disasters,civil disturbances,power outages,telephone network outages, and
severe or unusual-weather conditions. Those conditions that are ordinarily within the
control of the Grantee include, but are not limited to, special promotions,pay-per-view
events,rate increases,regular peak or seasonal demand periods, and maintenance or
Upgrade of the Cable System.
2.28 "Parent Corporation"means any existing or future corporation, entity, or Person with
greater than fifty percent(50%)ownership or control over Grantee.
2.29 "Pay-Per-View" service means programming offered on a per-program or per-event basis
for which a separate fee is charged.
2.30 "PEG Access" means Public Access, Educational Access, and Government Access,jointly
or severally.
2.31 "Person" means any individual,partnership,association,joint stock company,trust,
corporation or governmental entity.
2.32 "Right-of-Way" or"Rights-of-Way"means the surface of,and the space above and below,
any public street,highway,freeway,bridge,land path,alley,court,boulevard,sidewalk,way,
lane,public way,drive,circle or other public Right-of-Way, including,but not limited to,
general public utility easements,or Right-of-Way dedicated for compatible uses now or
hereafter held by the City in the Franchise Area,which shall entitle the Grantee to the use
thereof for the purpose of installing,operating,repairing,upgrading and maintaining the Cable
System. Right-of-Way shall also mean any easement now or hereafter held by the City within
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the Franchise Area for the purpose of utility or public service use dedicated for compatible
uses.
2.33 "School" means any State accredited public educational institution including, for example,
primary and secondary Schools(K-12).
2.34 "State"means the State of Washington.
2.35 "Subscriber" means any Person who lawfully receives Cable Service provided by
Grantee by means of the Cable System and whose premises are physically wired and
lawfully activated to receive Cable Service from Grantee's Cable System.
2.36 "Tier"means a group of Channels for which a separate periodic rate is charged.
2.37 "Video Programming" means programming provided by, or generally considered
comparable to programming provided by television broadcast station.
SECTION 3: GRANT OF FRANCHISE
3.1 Grant of Franchise
A. The City hereby grants to Grantee a nonexclusive Franchise authorizing Grantee to
construct and operate a Cable System in,along, among, upon, across, above,over, under
or in any Right-of-Ways within the Franchise Area for the purpose to install such wires,
cables, conductors,ducts,conduits,vaults,manholes,pedestals, amplifiers, appliances,
attachments, and other related property or equipment and to use existing poles as may be
necessary or appurtenant for the deployment of Cable Services over the Cable System.
This Franchise is subject to and shall be governed by all applicable provisions now
existing or hereafter amended of federal, State and local laws and regulations, except as
specifically provided for within this Franchise.
B. This Franchise expressly authorizes Grantee to provide only Cable Services as allowed
by applicable law, and to construct, operate, or maintain Cable System facilities in the
Franchise Area. This Franchise is not a bar on Grantee's provision of non-Cable Services.
This Franchise does not relieve Grantee of any obligation it may have to comply with any
local, state or federal requirements that lawfully apply to non-cable services.
C. This Franchise shall constitute both a right to provide the Cable Services required by, and
to fulfill the obligations set forth in,the provisions of this Franchise.
D. Grantee guarantees, as a condition of exercising the privileges granted by this Franchise,
that any Affiliated Entity of the Grantee directly involved in the offering of Cable Service
in the Franchise Area,will also comply with the obligations of this Franchise.
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E. Unless otherwise stated in this Franchise,in the event of a conflict between the Auburn
City Code and this Franchise,this Franchise shall control, and shall not be unilaterally
altered by the City through subsequent ordinance,regulation,resolution, or other
enactment of the City,except within the lawful exercise of the City's police power.
1. Grantee acknowledges, without waiving its right to challenge any City ordinance or
regulation that conflicts with its rights under this Franchise, that its rights hereunder
are subject to the police powers of the City to adopt and enforce ordinances necessary
to protect the health, safety, and welfare of the public, and Grantee agrees to comply
with all applicable laws and ordinances enacted by the City pursuant to such power.
2. This Franchise shall not be interpreted to prevent the City from lawfully imposing
additional conditions, including additional compensation conditions for use of the
rights-of-way.
3. No rights shall pass to Grantee by implication and this Franchise shall not include,
nor be a substitute for:
a. Any other permit or authorization required for the privilege of transacting and
carrying on a business within the City that may be required by the ordinances and
laws of the City;
b. Any permit, agreement, or authorization required by the City for rights-of-way
users in connection with operation on or in rights-of-way or public property,
including, by way of example and not limitation,construction or excavation
permits; or
c. Any permits or agreements for occupying any other property of the City or private
entities to which access is not specifically granted by this Franchise including,
without limitation,permits and agreements for placing devices on poles, in
conduits or in or on other structures.
F. This Franchise is intended to convey limited rights and interests only as to those rights-
of-way in which the City has a proprietary interest, is not a warranty of title or interest in
any rights-of-way, does not provide the Grantee with any interest in any particular
location within the rights-of-way,and does not confer rights other than as expressly
provided in the grant hereof.
G. This City has granted this Franchise in reliance upon the Grantee's business skill,
reputation, financial capacity, and character and may not be assigned,transferred,
conveyed, or otherwise encumbered without the express written consent of the City
pursuant to Section 15 of this Franchise.
3.2 Use of Rights-of-Way
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A. Any privilege claimed under this Franchise in any right-of-way shall be subordinated to
any prior lawful occupancy of the right-of-way.
B. Within parameters reasonably related to the City's role in protecting the public health,
safety, and welfare,the City may require,through the permitting process,that the Cable
System Facilities be installed at a particular time, at a specific place, or in a particular
manner as a condition of access to a particular right-of-way and may deny access if
Grantee is not willing to comply with the City's requirements.
3.3 Term
A. The term of this Franchise, and all rights,privileges,obligations, and restrictions
pertaining thereto, shall be ten(10)years from the Effective Date of this Franchise,
unless terminated earlier as provided herein.
B. The City and Grantee agree that any proceedings undertaken relative to the renewal of
this Franchise shall be governed by and comply with the provisions of 47 U.S.C. § 546
and applicable ACC.
C. If Grantee requests renewal of this Franchise in accordance with the provisions of Section
626 of the Cable Act prior to the expiration of its term or any extension thereof,the
Franchise automatically continues month to month until renewed or until either party
gives written notice at least one hundred eighty(180)days in advance of the intent not to
renew the Franchise.
3.4 Acceptance and Effective Date
A. This Franchise, and any rights granted hereunder, shall not become effective for any
purpose unless and until Grantee files with the City Clerk(1)the Statement of
Acceptance, Attached hereto as Exhibit A, and incorporated herein by this reference, (2)
all verifications of insurance coverage specified under Section 6.3, (3)the security
specified in Section 6.4, and(4)any outstanding application fees per the City fee
schedule. These four items shall collectively be the"Franchise Acceptance." The
Effective Date of this Franchise shall be the date upon which the City Clerk Receives the
Franchise Acceptance.
B. Should Grantee fail to file the Franchise Acceptance with the City Clerk within sixty(60)
days after this Franchise is approved by City Council,this Franchise shall be null and
void.
3.5 Franchise Nonexclusive
This Franchise shall be nonexclusive, and subject to all prior rights, interests, easements,
permits or licenses granted by the City to any Person to use any property for any
purpose whatsoever, including the right of the City to use the same for any purpose it
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deems fit, including the same or similar purposes allowed Grantee hereunder, and the City
may at any time grant authorization to use the Rights-of-Way for any purpose not
incompatible with Grantee's authority under this Franchise and for such additional
franchises for cable systems as the City deems appropriate.
3.6 Effect of Acceptance
By accepting this Franchise, Grantee: (A) acknowledges and accepts the City's legal right to
issue and enforce the Franchise; (B)agrees that it will not oppose the City's intervening,to
the extent the City is legally entitled to do so, in any legal or regulatory proceeding affecting
the Cable System; (C)accepts and agrees to comply with each and every provision of this
Franchise; and(D)agrees that the Franchise was granted pursuant to processes and
procedures consistent with applicable law, and that it will not raise any claim to the contrary.
3.7 Modifications to this Franchise
A. This Franchise is subject to the lawful terms and conditions of the Auburn City Code, as
the same is now or is hereafter amended by the lawful exercise of the City's police
powers.
B. This Franchise may be amended at any time by mutual written agreement of the parties
for any reason.
C. Competitive Equity:
1. The City reserves the right to grant additional franchises or similar authorizations to
provide Video Programming services via Cable Systems or similar wireline systems
located in the Right of Way. The City intends to treat wireline competitors in a
nondiscriminatory manner in keeping with federal law. If, following the Effective
Date of this Franchise,the City grants such an additional franchise or authorization to
use the Right of Way to provide such services and Grantee believes the City has done
so on terms materially more favorable than the obligations under this Agreement,
then the provisions of this subsection will apply.
2. As part of this Franchise, the City and Grantee have mutually agreed upon the
following terms as a condition of granting the Franchise,which terms may place the
Grantee at a significant competitive disadvantage if not required of a wireline
competitor:the Franchise Fee, PEG Access funding,PEG Access Channels,records
and reports,and customer service obligations(hereinafter"Material Obligations").
The City and Grantee agree that these Material Obligations bear no relationship to the
technology employed by the Grantee or a wireline competitor and as such can
reasonably be expected to be applied fairly across all wireline competitors. The City
and Grantee further agree that this provision shall not require a word for word
identical franchise or authorization for competitive equity so long as the regulatory
and financial burdens on each entity are generally equivalent.
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3. Within one(1)year of the adoption of a wireline competitor's franchise or similar
authorization, Grantee must notify the City in writing of the Material Obligations in
this Franchise that exceed the Material Obligations of the wireline competitor's
franchise or similar authorization. The City shall have one hundred twenty(120)days
to agree to allow Grantee to adopt the same Material Obligations provided to the
wireline competitor, or dispute that the Material Obligations are different. In the event
the City disputes that the Material Obligations are different, Grantee may bring an
action in federal or State court for a determination as to whether the Material
Obligations are different and as to what Franchise amendments would be necessary to
remedy the disparity.Alternatively, Grantee may notify the City that it elects to
immediately commence the renewal process under 47 U.S.C. § 546 and to have the
remaining term of this Franchise shortened to not more than thirty(30)months.
4. Nothing in this subsection is intended to alter the rights or obligations of either party
under applicable federal or State law,and it shall only apply to the extent permitted
under applicable law and FCC orders. In no event will the City be required to refund
or to offset against future amounts due the value of benefits already received.
5. This provision does not apply if the City is ordered or required to issue a franchise on
different terms and conditions,or it is legally unable to do so; and the relief is
contingent on the new Cable Operator actually commencing provision of service in
the market to its first customer. Should the new Cable Operator fail to continuously
provide service for a period of six(6)months,the City has the right to implement this
Franchise with its original terms upon one hundred eighty(180)days' notice to
Grantee.
6. This subsection does not apply to open video systems, nor does it apply to common
carrier systems exempted from franchise requirements pursuant to 47 U.S.C. § 571;
or to systems that serve less than 5%(five percent)of the geographic area of the City;
or to systems that only provide video services via the public Internet.
SECTION 4: FRANCHISE FEES AND FINANCIAL CONTROLS
4.1. Franchise Fees
As compensation for the use of the City's Rights-of-Way, Grantee shall pay as a Franchise
Fee to the City,throughout the duration of this Franchise, an amount equal to five percent
(5%)of Grantee's Gross Revenues,which shall commence on the Effective Date of this
Franchise.
4.2. Payments
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Grantee's Franchise Fee payments to the City shall be computed quarterly for the preceding
quarter. Each payment shall be due and payable no later than thirty(30)days after the end of
the preceding quarter,after which time interest will accrue. The quarters shall end
respectively on the last day of March, June, September and December.
4.3. Acceptance of Payment
No acceptance of any payment shall be construed as an accord by the City that the amount
paid is, in fact,the correct amount,nor shall any acceptance of payments be construed as a
release of any claim the City may have for further or additional sums payable or for the
performance of any other obligation of Grantee.
4.4. Franchise Fee Reports
Each payment shall be accompanied by a written report to the City, verified by an authorized
representative of Grantee,containing an accurate statement in summarized form which
includes a breakdown by category of Grantee's Gross Revenues and the computation of the
payment amount.
4.5. Audits
A. Upon forty-five (45)days prior written notice,the City shall have the right to conduct an
annual independent audit of Grantee's records necessarily related to the enforcement of
this Franchise and to re-compute any amounts determined to be payable under this
Franchise.
1. If Grantee cooperates in making all relevant records available to the City,the City
will attempt to complete each audit within six(6)months, and the audit period shall
be no greater than the previous three (3)years,unless the City has information
relating to previous years beyond the three (3) years which raises doubt as to the
accuracy of payments made under this or previous franchises, in which case an
additional three (3) years may be audited.
2. Any undisputed amounts due to the City as a result of the audit shall be paid within
sixty(60)days following written notice to the Grantee by the City,which notice shall
include a copy of the audit findings.
3. If the audit shows that Franchise Fees have been underpaid by five percent(5%)or
more in any calendar year, Grantee shall pay for the cost of the audit up to five
thousand dollars($5,000)per year being audited for a maximum of 3 years.
B. If Grantee disputes all or part of the audit findings,then the parties shall meet in an
attempt to resolve the matter. If the parties are unable to resolve the matter,then either of
the parties may refer that matter to non-binding arbitration. Each party shall bear one-
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half of the costs and expenses of the arbitration proceedings. The decision of the
arbitrator(s) shall be subject to judicial review at the request of either party.
4.6. Late Payments
In the event any payment due the City is not timely made, Grantee shall pay, in addition to
the amount due, interest at the rate of twelve percent(12%)per annum from the payment due
date until the City receives the payment.
4.7. Underpayments
If a Franchise Fee underpayment is discovered as the result of an audit, Grantee shall pay, in
addition to the amount due, interest at the rate of twelve percent(12%)per annum calculated
from the date the underpayment was originally due until the date the City receives the
payment.
4.8. Maximum Franchise Fees
A. The parties acknowledge that, at present,applicable federal law limits the City to
collecting a franchise fee of five percent(5%)of Gross Revenues in a 12-month period.
B. In the event that at any time throughout the term of this Franchise,the City is authorized
to collect an amount in excess of five percent(5%)of Grantee's Gross Revenues and the
City elects to do so,then this Franchise shall be amended by the parties consistent with
such change provided however that all other Cable Operators within the Franchise Area
are treated similarly.
C. In the event that at any time throughout the term of this Franchise,the City may only
collect an amount which is less than five percent(5%)of Grantee's Gross Revenues for
franchise fees due to a change in federal law,then this Franchise shall be amended by the
parties consistent with such change to provide for such lesser percentage.
4.9. Additional Commitments Not Franchise Fees
A. No term or condition in this Franchise shall in any way modify or affect Grantee's
obligation to pay in full the Franchise Fee percentage listed in this Franchise. Although
the total sum of Franchise Fee payments and additional Access capital contribution
commitments set forth elsewhere in this Franchise may total more than five percent(5%)
of Grantee's Gross Revenues in any 12-month period, Grantee agrees that the additional
Access capital contribution commitments are excluded from the definition of Franchise
Fee herein and are not Franchise Fees,nor are they to be offset or credited against any
Franchise Fee payments due to the City,nor do they represent an increase in Franchise
Fees to be passed through to Subscribers.
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B. Additionally, any security fund,performance bond or letter of credit shall not be offset
against Franchise Fees. Furthermore,the City and Grantee agree that any utility tax,
business and occupation tax or similar generally applicable tax or fee shall be in addition
to any Franchise Fees required herein and there shall be no offset against Franchise Fees
subject to applicable law.
C. If Grantee elects to offset certain non-cash commitments or initiatives against the
Franchise Fee in accordance with applicable law, Grantee will provide the City ninety
(90)days' advance written notice,to include a detailed schedule of the amount it intends
to offset, and the cost basis for each schedule item. The City will have eighty(80)days
from receipt of Grantee's notice to respond. The City reserves the right to terminate
Grantee's provision of any non-cash commitments or initiatives.
4.10. Payment on Termination
A. If this Franchise is lawfully terminated,the Grantee shall file with the City within ninety
(90)days of the date of the termination, a financial statement,prepared by a certified
public accountant,or representative of the Grantee's Controller or Chief Financial
Officer, showing the Gross Revenues received by the Grantee since the end of the
previous fiscal year.
B. Within thirty(30)days of the filing of the statement with the City, Grantee shall pay any
unpaid Franchise Fee amounts as indicated.
C. If the Grantee fails to pay its remaining financial obligations as required in this Franchise,
the City may satisfy the same by utilizing the funds from any security provided by the
Grantee.
4.11. Tax Liability
The Franchise Fees shall be in addition to any and all taxes or other levies or assessments
which are now or hereafter required to be paid by businesses in general by any law of the
City,the State or the United States including,without limitation, sales, use,utility,
occupation and other taxes,business license fees or other payments.
4.12. Bundling of Cable and Non-Cable Services
In no event will the Grantee unlawfully evade or reduce applicable Franchise Fee payments
required to be made to the City due to discounted bundled services. Customer billing shall be
itemized by service(s), and Grantee shall comply with all applicable laws regarding rates for
Cable Services and all applicable laws covering issues of cross subsidization.
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SECTION 5: ADMINISTRATION AND REGULATION
5.1. Authority
The City shall be vested with the power and right to administer and enforce the requirements
of this Franchise and the regulations and requirements of applicable law, including the Cable
Act, or to delegate that power and right,or any part thereof,to the extent permitted under
law,to any agent in the sole discretion of the City.
5.2. Rate Regulation
All rates, fees, charges, deposits and associated terms and conditions to be imposed by the
Grantee or any affiliated Person for any Cable Service as of the effective date shall be in
accordance with applicable law.
5.3. Low Income Discount
As long as the Grantee offers Basic Service,the Grantee intends to offer a discount to those
individuals who are low income(according to applicable federal guidelines) and either
permanently disabled or 65 years of age or older and who are the legal owners or tenants of
the Dwelling Unit. Such discounts will consist of thirty percent(30%)off of Basic Service
or the Basic Service portion of digital service packages when not discounted by inclusion in
other promotional or programming package rates at which time the promotional or
programming package rate will apply.
The City acknowledges that discounted services reflect a voluntary initiative on the part of
Grantee, and is not a requirement of this franchise. Subject to applicable law, should
Grantee elect to discontinue the low income discount, Grantee shall first provide the City
with ninety(90)days' prior notice.
5.4. Performance Evaluations
A. Upon thirty(30)days written notification,the City may hold performance evaluation
sessions,no more than once every twelve months,whenever necessary to ensure proper
performance of the provisions of this Franchise.
B. All evaluation sessions shall be open to the public.
C. Topics which may be discussed at any evaluation session include,but are not limited to,
construction issues, Cable Service rate structures,Franchise Fee payments, liquidated
damages,free or discounted Cable Service, application of new technologies, Cable
System performance, Cable Services currently provided and programming offered, future
plans of Grantee for new services or programs, Subscriber Complaints,privacy,
modifications to this Franchise,judicial and FCC rulings, line extension policies and the
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City's or Grantee's rules;provided that nothing in this subsection shall be construed as
requiring the renegotiation of this Franchise.
D. During evaluations under this subsection, Grantee shall fully cooperate with the City and
shall provide such information and documents as the City may reasonably require to
perform the evaluation.
5.5. Leased Access Channel Rates
Grantee shall offer Leased Access Channel capacity on such terms and conditions and rates
as may be negotiated with each lessee, subject to the requirements of Section 612 of the
Cable Act. Upon request, Grantee shall provide a complete schedule of current rates and
charges for any and all Leased Access Channels or portions of such Channels provided by
Grantee.
5.6. Late Fees
For purposes of this subsection, any assessment, charge, cost, fee or sum, however
characterized,that Grantee imposes upon a Subscriber solely for late payment of a bill is a
late fee and changes in late fee rates shall be noticed to the City and applied in accordance
with applicable law.
SECTION 6: INDEMNIFICATION AND INSURANCE REQUIREMENTS
6.1. Indemnification
A. Indemnity: Grantee agrees to indemnify,defend and hold harmless the City, its elected
officials, officers,authorized agents,boards,volunteers and employees, acting in official
capacity, from and against any liability,damages or claims,costs, expenses, settlements
or judgments arising out of, or resulting from the granting of this Franchise or Grantee's
activities, any casualty or accident to Person or property that occurs as a result of any
construction, excavation, operation, maintenance, reconstruction,relocation, or any other
act or omission done pursuant to the terms of this Franchise,provided that the City shall
give Grantee timely written notice of its obligation to indemnify the City.
Notwithstanding the foregoing, Grantee shall not indemnify the City to the extent that
any damages, liability or claims resulting from the willful misconduct,concurrent
negligence of the City, its officers, authorized agents, or employees, attorneys,
consultants,volunteers, or independent contractors for which the City is legally
responsible, or for any activity or function conducted by any Person other than Grantee in
connection with PEG Access and/or Emergency Alert System.
B. Indemnification for Relocation: Grantee shall indemnify, defend and hold the City, its
elected officials, officers, authorized agents,boards,volunteers,and employees harmless
for any damages, claims, additional costs,or expenses payable by the City related to,
arising out of, or resulting from Grantee's failure to remove, adjust or relocate any of its
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facilities in the Rights-of-Way in a timely manner in accordance with any lawful
relocation required by the City; including,but not limited to, claims for delay, damages,
costs, and/or time asserted by any contractor performing public work for or on behalf of
the City.
C. Procedures and Defense: With respect to Grantee's indemnity obligations set forth herein,
Grantee shall provide the defense of any claims or actions brought against the City or any
other indemnified party. Nothing herein shall be deemed to prevent the City from
cooperating with Grantee and participating in the defense of any litigation by its own
counsel at its own cost and expense;provided,however,that after consultation with the
City, Grantee shall have the right to defend, settle or compromise any claim or action
arising hereunder,and Grantee shall have the authority to decide the appropriateness and
the amount of any such settlement. However, Grantee may not agree to any settlement of
claims financially affecting the City without the City's written approval that shall not be
unreasonably withheld.
D. Duty to Give Notice: The City shall give Grantee timely written notice of any claim or of
the commencement of any action, suit or other proceeding covered by the indemnity in
this Section. The City's failure to so notify and request indemnification shall not relieve
Grantee of any liability that Grantee might have, except to the extent that such failure
prejudices Grantee's ability to defend such claim or suit. In the event any such claim
arises,the City or any other indemnified party shall tender the defense thereof to Grantee
and Grantee shall have the obligation and duty to defend any claims arising thereunder,
and the City shall cooperate fully therein.
E. Separate Representation: If separate representation to fully protect the interests of both
parties is necessary, such as a conflict of interest between the City and the counsel
selected by Grantee to represent the City,Grantee shall pay for the City's selected
counsel, from the date such separate representation is required forward, all reasonable
expenses incurred by the City in defending itself with regard to any action, suit,or
proceeding indemnified by Grantee.
F. Inspection: Inspection or acceptance by the City of any work performed by Grantee at the
time of completion of construction or maintenance projects shall not be grounds for
avoidance of any of these covenants of indemnification.
6.2. Grantee's Further Responsibilities.
A. Grantee shall indemnify and hold harmless the City from any workers' compensation
claims to which Grantee may become subject during the Term of this Franchise. It is
further specifically and expressly understood that, solely to the extent required to enforce
the indemnification provided per this Franchise, Grantee waives its immunity under
RCW Title 51;provided,however,the foregoing waiver shall not in any way preclude
Grantee from raising such immunity as a defense against any claim brought against
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Grantee by any of its employees or other third party. This waiver has been mutually
negotiated by the parties.
B. Grantee's indemnification obligations shall include indemnifying the City for actions
brought by Grantee's own employees and the employees of Grantee's agents,
representatives,contractors,and subcontractors even though Grantee may be immune
under Title 51 RCW from direct suit brought by such employee.
6.3. Insurance Requirements
A. Grantee shall maintain in full force and effect at its own cost and expense each of the
following policies of insurance or equivalent self-insurance.
B. Grantee shall maintain:
1. Commercial General Liability("CGL") insurance written on an occurrence form at
least as broad as ISO CG 00 01,with Minimum Limits of Liability: $5,000,000.00 per
occurrence, $5,000,000.00 premises/operations,products/completed operations
aggregate,personal/advertising inquiry liability,contractual liability, and independent
contractors liability; and shall not exclude XCU/subsidence perils or any similar
perils;
2. Automobile Liability insurance at least as broad as ISO CA 00 01 including coverage
for owned,non-owned, leased, or hired vehicles, as applicable,with a minimum limit
of$5,000,000.00 each accident for bodily injury and property damage;
3. Workers' Compensation insurance for the State as required by Title 51,Revised Code
of Washington, Industrial Insurance, $5,000,000.00 each accident/each disease/
policy limit employers liability/Washington stop gap; and
4. Excess or Umbrella Liability: $5,000,000 each occurrence and$5,000,000 policy
limit.
C. Additional Insured: The City its officers,employees,authorized agents,and volunteers
shall be included as an additional insured under each of the insurance policies required in
this Section except Workers' Compensation Insurance. Except for Workers'
Compensation and employer's liability, all insurance policies required hereunder shall
provide or be endorsed so that the City is covered as,and have the rights of, an additional
insured with respect to liability arising out of activities performed by,or on behalf of,
Grantee under this Franchise or applicable law, or in the construction, operation, upgrade,
maintenance,repair,replacement or ownership of the Cable System. Grantee shall
provide to the City either(1)a copy of an endorsement covering the City as an Additional
Insured for each insurance policy required in this Section and providing that such
insurance shall apply as primary insurance on behalf of such Additional Insureds or(2)a
copy of the blanket additional insured clause from the policies. Receipt by the City of
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any certificate showing less coverage than required is not a waiver of Grantee's
obligations to fulfill the requirements. Grantee's insurance coverage shall be primary
insurance with respect to the City. Any insurance or self-insurance maintained by the
Additional Insureds shall be in excess of Grantee's insurance and shall not contribute to
it. Grantee's insurance shall apply separately to each insured against whom a claim is
made or lawsuit is brought,except with respect to the limits of the insurer's liability.
D. Coverage: Each policy shall provide that the insurance shall not be canceled or
terminated so as to be out of compliance with these requirements without forty-five(45)
days written notice first provided to the City via mail,and thirty(30)days' notice for
nonpayment of any premium. If the insurance is canceled or terminated so as to be out of
compliance with the requirements of this Franchise, Grantee shall provide a replacement
policy. Grantee agrees to maintain continuous uninterrupted insurance coverage, in at
least the amounts required,until all work required to be performed under the terms of this
Franchise is satisfactorily completed and, in the case of Commercial General Liability
Insurance, for at least one (1)year after expiration of this Franchise. Any failure of
Grantee to comply with the claim reporting provisions of the policy(ies)or any breach of
an insurance policy warranty shall not affect coverage afforded under the policy to
protect the City. However, if coverage is not afforded under these circumstances,
Grantee will indemnify the City for losses the City otherwise would have been covered
for as an additional insured.
E. Alternative Insurance: Grantee shall not cancel any required insurance policy without
obtaining alternative insurance in conformance with this Franchise. Each of the required
insurance policies shall be with insurers qualified to do business in the State of
Washington with a Best's rating of no less than"A-VII."
F. Verification of Coverage: In addition to the other requirements of this Section, Grantee
shall furnish the City with certificates of insurance reflecting at least the minimum
coverage and policy limits required hereunder. The certificates for each insurance policy
are to be on standard forms or such forms as are consistent with standard industry
practices.
G. Grantee's policy shall not include any of the following endorsements, or their equivalent
endorsements or exclusions:
1. Contractual liability limitation(GCL Form 21 39 or equivalent),
2. Amendment of insured contract definition(CGL Form 24 26 or equivalent),
3. Limitation of coverage to designated premises or project(CGL Form 21 44 or
equivalent),
4. Any endorsement modifying or deleting the exception to the employer's liability
exclusion,
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5. Any"Insured vs. Insured"or"cross-liability"exclusion with respect to additional
insureds, and
6. Any type of punitive, exemplary or multiplied damaged exclusion.
H. Evidence of insurance shall be in the form of a certificate of insure evidencing
compliance with these requirements.
6.4. Franchise Security
A. Grantee shall provide a performance bond, in a form acceptable to the City, in the amount
of One Hundred Fifty thousand dollars($150,000.00)to ensure the faithful performance
of its responsibilities under this Franchise and applicable law. Grantee may be required
to obtain additional security, such as generally applicable construction bonds, in
accordance with the City's permitting requirements. Grantee shall pay all premiums or
costs associated with maintaining the security, and shall keep the same in full force and
effect at all times and shall immediately replenish the bond upon foreclosure. Except as
expressly provided herein or as otherwise specified in the City's construction permitting
requirements,the Grantee shall not be required to obtain or maintain other security as a
condition of being awarded the Franchise. Grantee shall not cancel the performance bond
without obtaining an alternative performance bond in conformance with this Franchise.
B. The security shall be subject to the approval of the City Engineer as to its adequacy under
the requirements of this Section.
C. In the event Grantee shall fail to substantially comply with any one or more of the
provisions of this Franchise,then there shall be recovered,jointly and severally, any
damages suffered by the City as a result thereof, including but not limited to, staff time,
material and equipment costs, compensation or indemnification of third parties, and the
cost of removal or abandonment of Facilities.
D. The security required by this Section shall not be construed to limit Grantee's liability to
the guarantee amount, or otherwise limit the City's recourse to any remedy to which the
City is otherwise entitled at law or in equity.
SECTION 7: CUSTOMER SERVICE
7.1. Customer Service Standards
The City hereby adopts the customer service standards set forth in Part 76, §76.309 of the
FCC's rules and regulations, as amended. The Grantee shall comply in all respects with the
customer service requirements established by the FCC.
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7.2. Subscriber Privacy
Grantee shall comply with privacy rights of Subscribers in accordance with federal, State,
and local laws.
SECTION 8: REPORTS AND RECORDS
8.1. Open Records
A. The City shall have access to, and the right to inspect, any books and records of Grantee
and its Affiliates which are reasonably necessary to monitor and enforce Grantee's
compliance with the provisions of this Franchise at Grantee's regional business office,
during normal business hours, and without unreasonably interfering with Grantee's
business operations.
B. The City may, in writing, request copies of any such records or books that are not
identified as proprietary or confidential, and Grantee shall provide such copies within
thirty(30)days of the transmittal of such request.
1. One copy of all reports and records required under this or any other Section shall be
furnished to the City at the sole expense of Grantee.
2. If the requested books and records are too voluminous, or identified as proprietary
and confidential, or for security reasons cannot be copied or removed,then the City
shall inspect them at Grantee's regional office.
8.2. Confidentiality
A. Grantee shall not be required to disclose information to third parties that it reasonably
deems to be proprietary or confidential in nature, nor disclose books and records of any
affiliate of Grantee that is not providing Cable Service in the Franchise Area.
B. The City agrees to keep confidential any proprietary or confidential books or records of
Grantee to the extent permitted by law;provided that Grantee shall be responsible for
clearly and conspicuously identifying the records as confidential or proprietary, and shall
provide a brief written explanation as to why such information is confidential or
proprietary and how it may be treated as such under State or federal law.
C. Grantee shall not be required to provide Customer information in violation of Section 631
of the Cable Act or any other applicable federal or State privacy law.
1. For purposes of this subsection,the terms"proprietary or confidential" include,but
are not limited to, information relating to the Cable System design, as-built
documents, fiber optic cable locations and maps, customer lists,marketing plans,
financial information unrelated to the calculation of Franchise Fees or rates pursuant
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to FCC rules, or other information that is reasonably determined by Grantee to be
competitively sensitive.
2. If the City receives a demand from any Person for disclosure of any information
designated by Grantee as proprietary or confidential,the City shall, so far as
consistent with applicable law,advise Grantee and provide Grantee with a copy of
any written request by the Person demanding access to such information within five
(5)business days.
D. While it is not a legal obligation,the City, as a courtesy, will allow Grantee up to ten(10)
business days to obtain and serve the City with a court injunction to prevent the City from
releasing the Documents.
1. If Grantee fails to obtain a Court order and serve the City within the ten(10)business
days,the City may release the Documents.
2. The City will not assert an exemption from disclosure on Grantee's behalf.
8.3. Maps and Records Required
Grantee shall make available to the City upon request:
1. A route map that depicts the general location of the Cable System facilities placed in the
Right-of-Ways. The route map shall identify Cable System facilities as aerial or
underground and is not required to depict cable types,number of cables,electronic
equipment,and service lines to individual Subscribers. The Grantee shall also provide,
if requested,an electronic format of the aerial/underground facilities in relation to a
Right-of-Way centerline reference to allow the City to add this information to City's
geographic information system program;
2. A copy of all FCC filings that relate to the operation of the Cable System in the
Franchise area; and
3. A list of Grantee's Cable Services, rates, and Channel line-up.
8.4. Submittal of Documents
A. Upon written request, Grantee shall submit to the City a copy of any application,
notification, communication or document of any kind, submitted by Grantee or its
Affiliates to any federal, State or local courts, regulatory agencies and other
governmental bodies if such document directly relates to the operations of Grantee's
Cable System within the Franchise Area.
B. Grantee shall submit such documents to the City no later than thirty(30)days after
receipt of the City's request. Grantee shall not claim confidential,privileged or
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proprietary rights to such documents unless under federal, State, or local law such
documents have been treated as confidential or determined to be confidential by a court
of competent jurisdiction, or a federal or State agency.
8.5. Annual Reports
Upon request,thirty(30)days after the end of the first quarter, Grantee shall submit to the
City a written report containing the following information:
A. The most recently completed annual corporate report;
B. A Gross Revenue statement for the preceding fiscal year and all deductions and
computations for the period, reviewed by a certified public accountant,who may also be
the chief financial officer or controller of Grantee;
C. A summary of the previous years' activities regarding the development of the Cable
System, including, but not limited to, homes passed, beginning and ending plant miles,
any technological changes occurring in the Cable System; and
D. An executive summary of Subscriber Complaints received in the previous year.
E. A description of planned construction, if any, for the current year.
SECTION 9: PROGRAMMING AND ACCESS
9.1. Broad Programming Categories
Grantee shall offer to all Subscribers a diversity of video programming services.
9.2. Parental Control Device
Upon request by any Subscriber, Grantee shall make available a parental control or lockout
device,trap or filter to enable a Subscriber to control access to both the audio and video
portions of any or all Channels. Grantee shall inform its Subscribers of the availability of the
lockout device at the time of their initial subscription and periodically thereafter. Such
devices,traps or filters will be provided at no charge to the Subscriber, unless otherwise
provided by federal law.
9.3. Access Channels
A. The Grantee shall provide to the City three(3) standard digital format PEG Channels for
Subscribers within the Franchise Area. The three PEG Channels shall include a
Government Access Channel currently being programmed by the City;the City's
Educational Access Channel currently being programmed by the Puget Sound
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Educational Service;and the City's Public Access Channel currently being programmed
by a designated access provider.
B. The City acknowledges that the Grantee's Cable System provides additional benefits to
access programming needs beyond the requirements listed above. This is accomplished
through the inclusion of other regional access programming, including educational and
public access,within the regional channel line-up that services the Franchise Area. The
Grantee will endeavor to provide the Subscribers in the Franchise Area with the other
regional access channels so long as the programmers offer them for use on the Cable
System.
C. Simulcast High Definition Access Channel:
1. The Grantee agrees to simulcast the one(1)Government Access Channel in high-
definition(HD PEG Channel)format under the following conditions:
a. Upon the City's request,the Grantee shall have twelve(12) months to activate the
simulcast HD PEG Channel.
b. The Grantee shall be responsible for all capital engineering costs associated with
fulfilling the request to activate the simulcast HD PEG Channels.
c. The City or any Designated Access Provider shall be responsible for acquiring all
equipment necessary to produce programming in HD.
d. Upon activation of the simulcast HD PEG Channel, Comcast shall own and
maintain the encoder equipment used to transmit the high-definition signal from
City Hall(the demarcation point).
e. The City shall provide the HD PEG Channel signal as specified by the Grantee's
engineering standards, as amended by the Grantee from time to time because of
changes in technology.
2. The City acknowledges that the simulcast HD PEG Channel will be available only to
those Subscribers who elect to subscribe to Grantee's high-definition Cable Service,
receive a high-definition set-top converter, and pay all fees associated therewith.
3. Grantee shall have sole discretion to determine the Channel placement of the
simulcast HD PEG Access Channel within its high-definition channel line-up.
9.4. Control and Connectivity of Access Channels
A. The City may authorize designated access providers to control,operate and manage the
use of any and all access facilities provided by Grantee under this Franchise, including,
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without limitation,the operation of Access Channels. The City or its designee may
formulate rules for the operation of the Access Channels,consistent with this Franchise.
B. Regarding the City's and designated Access providers use of Access facilities and Access
Channels, Grantee shall fully cooperate with requests from the City, and provide all
necessary assistance related thereto.
C. As of the effective date of this Franchise,the Grantee maintains and shall continue to
maintain all existing fiber optic return line(s)to facilitate the City's current Access
connectivity to Grantee's Headend. If the City desires to relocate or expand the fiber
optic return line(s)to new location(s) over the term of this Franchise,upon one hundred
twenty(120)days written request by the City and at the City's cost for Grantee's
reasonable time and materials,the Grantee shall construct the requested new fiber optic
return line(s).
9.5. Location and Quality of Access Channels
A. All Access Channels provided to Subscribers under this Franchise shall be included by
Grantee as a part of the lowest Tier of service provided to all Subscribers in the Franchise
Areas or as otherwise provided by federal law. Grantee agrees to use reasonable efforts to
place the Access Channel in the same vicinity as other local government access channels.
B. The parties agree that it is the responsibility of the designated access provider(s)to
provide a quality PEG signal,to the Grantee at the point of demarcation, which meets or
exceeds the FCC technical standards. Notwithstanding the forgoing,the Grantee agrees
that it will deliver to subscribers a PEG signal of the same quality it receives from the
designated Access provider(s)without degradation and in accordance with the FCC
technical standards. There shall be no restriction on Grantee's technology used to
deploy and deliver standard digital or high definition signals so long as the requirements
of the Franchise are otherwise met. FCC technical standards shall be used for all testing
and assessment of quality under this section.
C. The Grantee shall provide Headend and hub equipment and routine maintenance and
repair and replace, if necessary, any of Grantee's equipment required to carry the Access
signal to and from the City's and any other Access origination point and the Grantee's
Headend and hubs for the Access Channels.
D. If Grantee makes a change in its Cable System and related equipment and facilities, or in
its signal delivery technology,which directly or indirectly affects the signal quality or
method or type of transmission of Access programming or services, Grantee shall take
necessary technical steps and provide necessary technical assistance, including the
acquisition of all necessary equipment and full training of access personnel,to ensure that
the capabilities of Access Channels and delivery of Access programming are not
diminished or adversely affected by such change. For example, live and taped
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programming must be cablecast with as good or better signal quality than existed prior to
such change.
E. Grantee shall provide as much notice as possible but not less than sixty(60)days advance
written notice to the City prior to any relocation of an Access Channels. In connection
with the movement of any of the City controlled Access Channels, Grantee shall provide
a bill message on subscriber's bills.
9.6. Access Capital Contribution
A. Grantee shall collect and remit to the City, as support for any lawful capital PEG use,
thirty-five cents($.35)per Subscriber per month,payable quarterly with Franchise Fees
as a"PEG Fee." 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.
B. The City shall have discretion to allocate the PEG Fee in accordance with applicable law.
To the extent the City makes access capital investments using City funds prior to
receiving the monthly PEG Fee funds,the City is entitled to apply the subsequent
monthly PEG Fee payments from Grantee toward such City capital investments. The
City agrees that the PEG Fee may be treated as external costs under applicable federal
law.
C. Upon the Grantee's written request,the City shall submit a report no more frequently
than annually on the use of the City specific Access Channels and capital PEG Fee. The
City shall submit a report to the Grantee within one hundred twenty(120)days of a
written request. The Grantee may review the records of the City regarding the use of the
PEG Fee.
D. The City shall dedicate the time,personnel and other resources needed to operate the
Access Channels designated herein.
SECTION 10: GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1. Right to Construct
Subject to the other provisions of this Franchise,and applicable law,Grantee may perform all
construction in the Right-of-Ways for any facility needed for the maintenance,operation or
extension of Grantee's Cable System.
10.2. General Standard
All work authorized and required hereunder shall be done in a safe,thorough and workmanlike
manner. All equipment shall be durable and installed and maintained in accordance with good
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engineering practices and comply with applicable law. Grantee shall on a daily basis ensure
cleanup of all workplaces whether work is performed by Grantee or Grantee's agents.
10.3. Repair and Emergency Work
A. In the event of an emergency,the Grantee may commence such repair and emergency
response work as required under the circumstances,provided that the Grantee shall notify
the City telephonically at 253.931.3010 during normal business hours and 253.876.1985
during non-business hours as promptly as possible. Such notification shall include the
Grantee's emergency contact phone number for the corresponding response activity.
B. During emergencies,except those involving imminent danger to the public health,safety or
welfare,the City shall provide notice to Grantee,at a designated emergency response
contact number,to allow Grantee the opportunity to respond and rectify the emergency
without disrupting Cable Service. If after providing notice,there is no immediate response,
the City may move Grantee's facilities.
C. Grantee shall apply for appropriate permits for emergency or repair work within forty-eight
(48)hours after the commencement of said work.
10.4. One Call
The Grantee shall,at its own expense,participate in the call before you dig program required
under State law.
10.5. Permits Required
A. Prior to doing any work in the Right-of-Way or other public property(with the exception of
installations or general maintenance that involve no construction and with no disruption to
the use of the Right-of-Ways or other public property),Grantee working directly or through
a contractor,subcontractor,Affiliated Entity,or other Person shall apply for,and obtain,in
advance, appropriate construction permits from the City.
B. As part of the permitting process,the City may impose such conditions as are necessary for
protecting the public or any and all facilities with in such Right-of-Ways,and for providing
for the proper restoration of such Right-of-Ways and to protect the public and the continuity
of non-motorized or vehicular traffic. Grantee shall pay all generally applicable fees for the
requisite City construction permits.
C. Grantee agrees to comply with any required permit conditions and/or licenses.
10.6. Compliance with Applicable Codes
A. City Codes: Grantee shall comply with all generally applicable City codes regarding the
construction and use of the Right-of-Ways.
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B. Regulations and Safety Codes: Grantee shall comply with the National Electric Code,
National Electrical Safety Code and Occupational Safety and Health Administration
(OSHA) standards.
10.7. Least Interference
Work in the Right-of-Ways,or on other public property,shall be done in a manner that causes
the least interference with the rights and reasonable convenience of property owners and City
residents. Grantee's Cable System shall be constructed and maintained in such a manner as not
to interfere with sewers,water pipes or any other property of the City,or with any other pipes,
wires,conduits,pedestals, structures or other facilities that may have been laid in the Right-of-
Way by,or under,the City's authority. In the event of such interference,the City may require
the removal or relocation of Grantee's lines,cables,equipment and other appurtenances from the
property in question at Grantee's expense.
10.8. Undergrounding of Cable
A. In all Areas of the City where all other utility lines are placed underground,Grantee shall
construct and install its Facilities underground;and Grantee may only place Facilities
aerially as allowed by ACC 13.32A as it currently exists or as amended.
B. In the event that the provisions of this subsection conflict with the provisions of ACC
13.32A,the provisions of ACC 13.32A shall govern this Franchise.
10.9. Restoration of Property
A. If in connection with the construction,operation,maintenance,upgrade,repair or
replacement of the Cable System,the Grantee disturbs,alters,or damages any public
property,the Grantee agrees that it shall at its own cost and expense pay for any damage and
replace and restore any such property to the satisfaction of the City and in compliance with
the permit requirements.
B. Grantee shall warrant any restoration work performed by or for Grantee in the Right-of-Way
or on other public property as required by the Construction permit and applicable municipal
code or any generally applicable ordinance or resolution of the City.
C. If restoration is not satisfactorily and timely performed by the Grantee,the City may,after
prior notice to the Grantee,or without notice where the disturbance or damage may create a
risk to public health or safety,cause the repairs to be made and recover all direct and indirect
cost of those repairs from the Grantee. Within thirty(30)days of receipt of an itemized list
of those costs, including the costs of labor,materials and equipment,the Grantee shall pay
the City.
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10.10. Movement of Cable System Facilities
A. Relocation at Request of City. Upon thirty(30)days prior written notice to Grantee, City
shall have the right to require Grantee to relocate any part of the Cable System within the
Right-of-Way when the public convenience,public interest,or safety,health or welfare of
the public requires such change,and the expense thereof shall be paid by Grantee.
1. In the event of any capital improvement project exceeding$500,000 in expenditures by
the City which requires the removal,replacement,modification or disconnection of
Grantee's facilities or equipment,the City shall provide at least sixty(60)days written
notice to Grantee.
2. Following notice by the City, Grantee shall relocate,remove,replace,modify or
disconnect any of its facilities or equipment within any Right-of-Way,or on any other
property of the City.
3. Should Grantee fail to remove or relocate any such facilities by the date established by
the City,the City may effect such removal or relocation,and the expense thereof shall
be paid by Grantee, including all costs and expenses incurred by the City due to
Grantee's delay.
4. If the City requires Grantee to relocate its facilities located within the Right-of-Way,the
City may provide Grantee with an alternate location within the Right-of-Way.
5. If public funds are available to any Person using such Right-of-Way for the purpose of
defraying the cost of any of the foregoing,the Grantee may make application for such
funds.
B. In the case of relocation projects where the City hires and designates an independent
contractor to accommodate and coordinate the conversion of overhead utilities within a City
capital improvement project, if the Grantee decides to participate in the joint trench
opportunity then the Grantee shall enter into a separate agreement with the City that,at a
minimum,requires the Grantee to pay all design,permitting,administration,coordination,
and construction costs incurred by the City associated with the proportionate share of the
joint trench utilized by the Grantee and the level of effort required to design,permit,
administer,coordinate,and construct the joint utility trench to accommodate the Grantee's
facilities.
10.11. Tree Trimming
The Grantee shall have the authority to conduct pruning and trimming for access to Cable
System facilities in the Right-of-Way. All such trimming shall be done at the Grantee's sole
cost and expense. The Grantee shall be responsible for any damage caused by such trimming.
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10.12. Rights-of-Way Vacation
If any street,or portion thereof,used by Grantee is vacated by the City during the term of this
Franchise,unless the City Council specifically reserves to Grantee the right to continue its
installation in the vacated street,Grantee shall,without delay or expense to the City,remove its
Facilities from such street.
10.13. Inspection of Facilities
Upon reasonable notice,the City may inspect any of Grantee's Facilities or equipment within
the Rights-of-Way and on other public property. If an unsafe condition is found to exist,the
City, in addition to taking any other action permitted under applicable law, may order
Grantee to make the necessary repairs and alterations specified therein forthwith to correct
the unsafe condition by a time the City establishes. The City has the right to inspect,repair
and correct the unsafe condition if Grantee fails to do so,and to reasonably charge Grantee
therefor.
10.14. Hazardous Substances
A. Grantee shall comply with all applicable State and federal laws,statutes,regulations,and
orders concerning hazardous substances,as described in RCW 70.105D.020,relating to the
Cable System in the City's rights-of-way.
B. Grantee shall maintain and inspect the Facilities located in the City's rights-of-way and
immediately inform the City of any release of hazardous substances.
C. Upon reasonable notice to Grantee,the City may inspect the Facilities in the City's rights-
of-way to determine if any release of hazardous substances has occurred,or may occur,
from,or related to,the Facilities.
D. In removing or modifying the Facilities as provided in this Franchise,Grantee shall also
remove all residue of hazardous substances related thereto;provided,however,that if it is
determined that the Facilities did not cause the release of hazardous substances, Grantee
shall have no duty to remove such substances.
E. Grantee agrees to forever indemnify the City against any claims,costs,and expenses of any
kind,whether direct or indirect, incurred by the City arising out of a release of hazardous
substances arising from,connected to,or incident to the Facilities in the City's rights-of-
way.
10.15. Reservation of City Use of Rights-of-Way
A. Grantee agrees that its use of the Franchise Area shall,at all times except in instances of
prior right,be subordinate and subject to the City's needs for municipal infrastructure and
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access to the Franchise Area and the public's right to travel,except as may be otherwise
required by law.
B. Should Grantee fail to remove,adjust,or relocate its Facilities by the date established by the
City Engineer,or his/her designee,and provided in writing to Grantee,the City may effect
such removal,adjustment,or relocation and recover the cost thereof from Grantee, including
all costs and expenses incurred by the City due to Grantee's delay.
C. Grantee agrees to coordinate its activities with the City and all other utilities located within
the public rights-of-way within which Grantee is undertaking its activity.
D. Grantee shall not construct the Cable System in any manner that requires any Subscriber to
install any cable,wire,conduits,or other facilities,under or over a right-of-way.
E. The City expressly reserves the right to prescribe how and where Grantee Facilities shall be
installed within the public rights-of-way and may,from time to time,pursuant to applicable
sections of this Franchise,require the removal,and/or replacement thereof in the public
interest and safety at the expense of Grantee.
10.16. Work of Contractors, Subcontractors,and Affiliated Entities
A. Grantee's contractors, subcontractors,and affiliated entities performing work benefitting
Grantee shall be licensed and bonded according to the City's,and the State's,regulations
and requirements.
B. Work by contractors,subcontractors,and affiliated entities is subject to the same
restrictions, limitations,and conditions as if the work were performed by Grantee.
C. Grantee shall be responsible for all work performed by its contractors,subcontractors,or
affiliated entities,and other Persons performing work on its behalf as if the work were
performed by it,and shall ensure that all such work is performed in compliance with this
Franchise and other applicable laws,and shall be,jointly and severally, liable for all
damages and correcting all damage caused by them.
D. It is Grantee's responsibility to ensure that contractors, subcontractors,affiliated entities,or
other Persons performing work on Grantee's behalf are familiar with the requirements of
this Franchise and other applicable laws governing the work performed by them.
E. Grantee agrees to inspect its contractors and subcontractors on a regular basis and ensure
that both its personnel,contractors,and subcontractors provide clean-up of all workplaces
and adhere to industry safety as well as local safety standards.
10.17. Discontinuing Use of Facilities
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A. Whenever Grantee intends to discontinue using any Facility within the City's Rights-of-
Way,Grantee shall submit for the approval of the authorizing City department,a complete
description of the Facility and the date on which Grantee intends to discontinue using the
Facility.
B. Grantee may remove the Facility or request that the City permit it to remain in place.
C. Notwithstanding Grantee's request that any such Facility remain in place,the City may
require Grantee to remove the Facility from the City's Rights-of-Way or modify or maintain
the Facility to protect the public health and safety or otherwise serve the public interest.
D. The City may require Grantee to perform a combination of modification,maintenance,
and/or removal of the Facility.
E. Until such time as Grantee removes or modifies the Facility as directed by the City,or until
the rights to,and responsibility for,the Facility are accepted by another Person having
authority to construct and maintain such Facility,Grantee shall be responsible for all
necessary repairs and relocations of the Facility,as well as maintenance of the City's Rights-
of-Way, in the same manner and degree as if the Facility were in active use,and Grantee
shall retain all liability for such Facility.
10.18. Construction and Use of Poles
Grantee may negotiate and enter into pole attachment agreements with utilities maintaining
poles in the Franchise Area in accordance with ACC 13.32(A)and on terms acceptable to
Grantee and the affected utilities.
SECTION 11: CABLE SYSTEM ARCHITECTURE AND TECHNICAL STANDARDS
11.1. Subscriber Network
A. Cable System Functionality: As of the Effective Date of this Franchise, Grantee provides
its Cable Service utilizing a two-way hybrid fiber-coaxial Cable System architecture that
deploys from Grantee's Headend to nodes throughout the City where the signal is
converted to radio frequency and runs along the coaxial portion of the Cable System to
Subscribers.
Over the term of this Franchise, Grantee shall maintain the Cable System in a manner
consistent with, or in excess of,a typical 750 MHz Cable System.
B. Grantee will take prompt corrective action if it finds that any facilities or equipment on
the Cable System are not operating as expected,or if it finds that facilities and equipment
do not comply with the requirements of this Franchise or applicable law.
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11.2. Standby Power
Grantee shall provide standby power generating capacity at the Cable System Headend
capable of providing at least twelve(12)hours of emergency operation. Grantee shall
maintain standby power supplies that supply back-up power for at least two(2)hours
duration throughout the distribution networks and four(4)hours duration at all nodes and
hubs.
11.3. Emergency Alert
Grantee shall provide an operating Emergency Alert System in accordance with and at the
time required by the provisions of State and federal laws, including FCC regulations.
11.4. Technical Performance
The technical performance of the Cable System shall meet or exceed all applicable federal
technical standards, as they may be amended from time to time, regardless of the
transmission technology utilized.
11.5. Cable System Performance Testing
A. Grantee shall perform on its Cable System all technical tests presently or hereafter
required by the FCC.
B. Upon request,all required FCC technical performance tests may be witnessed by
representatives of the City.
C. Grantee shall maintain written records of its Cable System tests performed by or for
Grantee. Copies of such test results will be provided to the City upon request.
D. Grantee shall promptly take such corrective measures as are necessary to correct any
performance deficiencies fully and to prevent their reoccurrence as far as possible.
Grantee's failure to correct deficiencies identified through this testing process shall be a
material violation of this Franchise. Sites shall be re-tested following correction.
11.6. Additional Tests
A. In addition to the above, and to the extent applicable,where there exists other evidence
which in the judgment of the City casts doubt upon the reliability or technical quality of
the Cable System, after giving Grantee thirty(30)days prior written notice and a
reasonable opportunity to cure,the City may require Grantee to conduct additional tests
and analyze and report on the performance of the Cable System in the area having service
problems.
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B. Grantee shall fully cooperate with the City in performing such testing and shall prepare
the results and a report if requested,within thirty(30)days after such testing. This report
shall include the following information:
1. The nature of the evidence which precipitated the special tests;
2. The Cable System component tested;
3. The equipment used and procedures employed in testing;
4. The results of the testing and Cable System evaluation, including a description of any
problem(s) found;
5. The method, if any, in which such problem was resolved; and
6. Any other information pertinent to said tests and analysis,which may be required.
SECTION 12: SERVICE EXTENSION AND SERVICE TO PUBLIC BUILDINGS
12.1. Service Availability
A. Service Connections: Grantee shall provide Cable Service within seven(7) business days
of a request by any potential residential subscriber within the City provided, however,
that service can be installed via a standard installation, as described below. For purposes
of this subsection, a request shall be deemed made on the date of signing a service
agreement or receipt by Grantee of a verified verbal request. Grantee shall provide such
service with no line extension charge, except as specifically authorized below, at a
nondiscriminatory installation charge for a standard installation, consisting of a one
hundred fifty(150)foot service drop from the cable plant in the Right-of-Way to the
exterior demarcation point for residential subscribers,with additional charges for non-
standard installations computed according to a nondiscriminatory methodology for such
installations.
B. For non-standard installations that cannot be accommodated without an extension of
Grantee's Cable System,the Grantee may elect to provide Cable Service to the requesting
resident(s) for the line extension on a time and material cost basis.
C. Distribution Line Extension Charges: The Grantee must make Cable Service available to
every residential Dwelling Unit within the Franchise Area where the minimum density is
at least thirty(30)Dwelling Units per strand mile in areas served by overhead facilities
and sixty(60)Dwelling Units per mile in areas served by underground facilities. The
Grantee may elect to provide Cable Service to areas not meeting the above density
standard and charge the requesting resident(s) for the line extension on a time and
material cost basis.
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D. Grantee shall provide Cable Service to Multiple Dwelling Units in accordance with this
Franchise and applicable laws.
E. Annexation: In the event of annexation by the City, or as development occurs, any new
territory shall become part of the territory for which this Franchise is granted.
1. The Grantee shall construct and extend its Cable System so that it is able to provide
Cable Service to any areas which may be acquired, developed or annexed by the City
during the Franchise term, or otherwise added to the City's jurisdiction during the
Franchise term,or any extension thereof.
2. Access to Cable Service shall not be denied to any group of potential cable
Subscribers because of the income of the residents of the area in which such group
resides.
3. The Grantee shall be given a reasonable period of time to construct and activate cable
plant to service annexed or newly developed areas but in no event to exceed twelve
(12)months of Council Approval of the annexation, subject to the provisions on line
extension herein.
12.2. Permission of Property Owner or Tenant for Installation, and Treatment of Property
A. If the Facilities pass over or under private or publicly owned property, Grantee is solely
responsible for obtaining all necessary permission from the property owner.
B. Grantee shall not install or attach any of its Facilities to any property without first
securing the written permission of the owner or tenant of any property involved,or of
such other person who has the right to approve or disapprove the attachment(authorized
party),except if there is an existing utility easement; and in the event that such
permission or easement is later revoked, Grantee at the request of the authorized party
shall promptly remove any of its facilities and promptly restore the property to its original
condition at Grantee's expense.
C. Grantee shall perform all such installations and removals in compliance with state and
local law and shall be responsible for any damage to residences or other property caused
by the installation or the removal.
12.3. Connection of City and Other Public Buildings
A. Upon request through the designated City representative,the Grantee will make available
without charge,as long as it is economically feasible, a standard installation and a
minimum of one outlet of 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).
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B. Grantee may additionally volunteer to provide a digital level of service, in addition to the
Basic Cable Service,that provides access to national 24-hour news channels;provided
that if the installation to such building does exceed one hundred twenty-five (125)aerial
feet,the City or other agency agrees to pay the incremental cost of such installation in
excess of one hundred twenty-five(125)feet or a necessary distribution line extension of
the Cable System, including the cost of such excess labor and materials. The recipient of
the service will secure any necessary right of entry.
C. 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 a
public lobby in City buildings that will be used by the public for viewing City selected
programming.
D. The City will take reasonable precautions to prevent any use of the Grantee's Cable
System in any manner that results in inappropriate use, loss or damage to the Cable
System.
E. If additional outlets of Cable Service are needed in such buildings, only the Grantee is
authorized to complete the Cable Service expansion to support the outlet installation(s)
and the building occupant will pay the standard installation fees. No other Cable Service
fees shall be owed in connection with additional outlets.
F. The City acknowledges that complimentary services reflect a voluntary initiative on the
part of Grantee. Grantee does not waive any rights it may have regarding complimentary
services under federal law or regulation. Subject to applicable law, should Grantee elect
to offset governmental complimentary services against Franchise Fees, Grantee shall first
provide the City with ninety(90)days' prior notice.
SECTION 13: FRANCHISE VIOLATIONS
13.1.Non-Material Franchise Violations
A. Notice of Non-Material Violation: If the City believes that Grantee has failed to perform
any non-material obligation under this Franchise,the City shall notify Grantee in writing,
stating with reasonable specificity the nature of the alleged default, and Grantee shall
have thirty(30)days from the receipt of such notice to:
1. Respond to the City, contesting the City's assertion that a default has occurred, and
request a meeting in accordance with subsection B,below; or
2. Cure the default; or
3. Notify the City that Grantee cannot cure the default within thirty(30)days, because
of the nature of the default. In the event the default cannot be cured within thirty(30)
days, Grantee shall:
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a. Notify the City in writing and with specificity the exact steps that will be taken
and the projected completion date of each step necessary to promptly cure the
default; and
b. Request a meeting pursuant to subsection B below for the City to determine
whether additional time beyond the thirty(30)days specified above is indeed
needed, and whether Grantee's proposed completion schedule and steps are
reasonable.
B. Meet and Confer: If Grantee does not cure the alleged default within the cure period
stated above,or denies the default, or the City orders a meeting,the City shall set a
meeting,not less than fifteen(15)business days after Grantee's receipt of written notice
from the City,to investigate the existence of the alleged default or the timing and
procedure required to cure a default,and provide Grantee with an opportunity to be heard
and to present evidence in its defense.
C. Notice to Correct: If, after the meeting,the City determines that a default exists, Grantee
and the City may agree on a plan and schedule to cure the default,or the City shall order
Grantee to correct or remedy the default within thirty(30)days, or within such additional
time as the City determines.
D. Determination of Default: The determination as to whether a non-material violation under
this Franchise has occurred shall be within the discretion of the City,must be made in
writing, and based upon findings that include Grantee's submissions;provided that any
such determination may be subject to appeal to the City's hearing examiner or review by
an arbitrator as described in Section 16.1.
E. Enforcement: In the event Grantee does not cure the default within the time agreed upon
by the Parties or ordered by the City and to the City's reasonable satisfaction,the City
may recommend revocation of this Franchise pursuant to the procedures in subsection
13.2 or commence the arbitration procedures in section 16.1.
13.2. Material Franchise Violations
A. The City shall notify the Grantee, in writing,of any alleged failure to comply with a
material provision of this Franchise,which notice shall specify the alleged failure with
reasonable particularity. The Grantee shall have thirty(30)days subsequent to receipt of
the notice in which to:
1. respond to the City,contesting the City's assertion that a default has occurred, and
requesting a meeting in accordance with subsection(B), below; or
2. cure the default; or
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3. notify the City that Grantee cannot cure the default within the thirty(30)days,
because of the nature of the default.
4. In the event the default cannot be cured within thirty(30)days, Grantee shall
promptly take all reasonable steps to cure the default and notify the City, in writing
and in detail, as to the exact steps that will be taken and the projected completion
date. In such case,the City may set a meeting in accordance with subsection(B)
below to determine whether additional time beyond the thirty(30)days specified
above is indeed needed, and whether Grantee's proposed completion schedule and
steps are reasonable.
B. If Grantee does not cure the alleged material default within the cure period stated above,
or by the projected completion date under this section,or denies the default and requests
a meeting in accordance with this section,or the City orders a meeting in accordance with
this section,the City shall set a meeting to investigate said issues and the existence of the
alleged default. The City shall notify Grantee of the meeting, in writing, and such
meeting shall take place no less than thirty(30)days after Grantee's receipt of notice of
the meeting. At the meeting, Grantee shall be provided an opportunity to be heard and to
present evidence in its defense.
C. If, after the meeting,the City determines that a default exists, Grantee and the City may
agree on a plan and schedule to cure the default. Absent such agreement,the City shall
order Grantee to correct or remedy the default or violation within thirty 30)days or
within such other reasonable timeframe as the City shall determine. In the event Grantee
does not cure the default within such time to the City's reasonable satisfaction,the City
may:
1. recommend the revocation of this Franchise pursuant to the procedures in this
franchise; or
2. pursue any other legal or equitable remedy available under this Franchise or
applicable law.
D. The determination as to whether a material violation of this Franchise has occurred shall
be within the discretion of the City. Any such determination by the City must be in
writing and must be based upon findings that include Grantee's submissions,and such
determination shall be subject to appeal to the City Council or review by a court of
competent jurisdiction under applicable law.
13.3. Revocation
A. The City may revoke this Franchise and rescind all rights and privileges associated with
this Franchise in any of the following circumstances:
1. if Grantee fails to cure any material obligation under this Franchise;
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2. if Grantee willfully fails for more than three(3)days to provide continuous Cable
Service;
3. if Grantee attempts to evade any material provision of this Franchise or to practice
any fraud or deceit upon the City or subscribers;
4. if Grantee becomes insolvent,or if there is an assignment for the benefit of Grantee's
creditors;
5. if Grantee willfully misrepresents material facts in the negotiation of this Franchise;
or
6. if Grantee repeatedly breaches a material provision of the Customer Service
Standards.
B. Prior to forfeiture or termination of the Franchise, the City shall give written notice to the
Grantee of its intent to revoke the Franchise. The notice shall set forth the exact nature of
the noncompliance. Grantee shall have forty-five (45)days from receipt of such notice to
object in writing and to state its reasons for such objection and provide any explanation
or cure the alleged default. In the event the City does not receive a timely and
satisfactory response from Grantee, it may then seek a termination of the Franchise in
accordance with this section.
C. The City shall submit a report and recommendation as to termination of the Franchise to
the City's appointed hearing examiner who shall conduct a public hearing to determine if
revocation of the Franchise is warranted. The hearing examiner shall act as the final
decision maker for the City.
1. At least twenty one (21) calendar days prior to the public hearing,the City clerk shall
issue a public hearing notice that shall establish the issue(s)to be addressed in the
public hearing;provide the time, date and location of the hearing;provide that the
City shall hear any Persons interested therein; and provide that the Grantee shall be
afforded fair opportunity for full participation, including the right to introduce
evidence,to require the production of evidence,to be represented by counsel and to
question witnesses, consistent with the adopted public hearing rules.
2. The hearing examiner shall hear testimony,take evidence, hear oral argument and
receive written briefs.A transcript may be made of such proceeding and the cost shall
be shared equally between the parties. A complete record of the public hearing shall
be completed including all exhibits introduced at the hearing and an electronic sound
recording.
D. Within thirty(30)days after the close of the hearing,the hearing examiner shall adopt a
written recommendation to the City Council. If the decision of the hearing examiner is to
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revoke and terminate the Franchise,the City Council shall declare that the Franchise is
revoked and terminated, and any form of surety is forfeited, unless the City Council finds
a clear error in the hearing examiner's decision. The City council's written decision shall
include findings of fact and conclusions derived from those facts which support the
decision of the City council.
E. Grantee shall be bound by the City council's decision to revoke the Franchise unless an
appeal to a court of competent jurisdiction is timely filed as allowed by applicable law.
13.4. Termination
A. If this Franchise expires without lawful renewal or is otherwise lawfully terminated or
revoked,the City may, subject to applicable law:
1. Require Grantee to maintain and operate its Cable System on a month-to-month basis
until a new cable operator is selected; or
2. Purchase Grantee's Cable System in accordance with federal law.
B. The City may order the removal of the above-ground Cable System facilities and such
underground facilities from the City at Grantee's sole expense within thirty(30)days
following notice from the City. However, Grantee shall have no obligation to remove the
Cable System where it utilizes the system to provide other,permitted and lawful, non-
cable services and has any other authority under applicable law to maintain facilitates in
the public rights-of-way, or where Grantee is able to find a purchaser of the Cable System
who holds such authorization.
C. If Grantee fails to complete any removal required by subsection 10.10 to the City's
satisfaction, after written notice to Grantee,the City may cause the work to be done and
Grantee shall reimburse the City for the costs and expenses incurred within thirty(30)
days after receipt of an itemized list of the costs and expenses, or the City may recover
the costs and expenses through Grantee's security instruments if Grantee has not paid
such amount regarding removal,which shall include reasonable attorneys' fees and other
costs for work conducted by City staff or agents.
13.5. Receivership
A. At the option of the City, subject to applicable law,this Franchise may be revoked after
the appointment of a receiver or trustee to take over and conduct the business of Grantee
or an Affiliated Entity whether in a receivership,reorganization,bankruptcy or other
action or proceeding, unless:
1. The receivership or trusteeship is timely vacated; or
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2. The receiver or trustee has timely and fully complied with all the terms and
provisions of this Franchise, and has remedies all defaults under this Franchise.
B. In the event that this Franchise is not revoked pursuant to subsection 13.4(A),the receiver
or trustee shall execute an agreement duly approved by a court having jurisdiction,by
which the receiver or trustee assumes and agrees to be bound by each and every term,
provision and limitation of this Franchise.
13.6. Alternative Remedies
A. Neither the existence of other remedies identified in this Franchise nor the exercise
thereof shall be deemed to bar or otherwise limit the right of either party to recover
monetary damages, as allowed under applicable law, or to seek and obtain judicial
enforcement by means of specific performance, injunctive relief or mandate,or any other
remedy at law or in equity.
B. The City specifically does not,by any provision of this Franchise, waive any right,
immunity, limitation or protection otherwise available to the City, its officers, officials,
City Council, Boards, commissions, agents,or employees under federal, State, or local
law(including, for example, Section 635A of the Cable Act).
13.7. Remedies Cumulative
A. Neither the existence of other remedies identified in this Franchise nor the exercise
thereof shall be deemed to bar or otherwise limit the right of either party to recover
monetary damages, as allowed under applicable law, or to seek and obtain judicial
enforcement by means of specific performance, injunctive relief or mandate, or any other
remedy at law or in equity.
B. The City specifically does not,by any provision of this Franchise,waive any right,
immunity, limitation or protection otherwise available to the City, its officers, officials,
City Council, Boards, commissions, agents,or employees under federal, State, or local
law(including, for example, Section 635A of the Cable Act).
13.8. Assessment of Liquidated Damages
A. Because it may be difficult to calculate the harm to the City in the event of a breach of
this Franchise by Grantee,the parties agree to liquidate damages as a reasonable
estimation of the actual damages.
1. Nothing in this subsection is intended to preclude the City from exercising any other
right or remedy with respect to a breach that continues past the time the City stops
assessing liquidated damages for such breach.
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2. The City shall first follow the violation procedures in section 13 for written notice to
Grantee and a thirty(30)day right to cure period under this Franchise before assessing
liquidated damages.
B. The City shall not assess any liquidated damages if Grantee has cured or commenced to,
and completes,the cure pursuant to this Franchise.
C. The first day for which liquidated damages may be assessed, if there has been no cure
after the end of the applicable cure period,shall be the day after the end of the applicable
cure period, including any extension of the cure period granted by the City.
D. Liquidated damages as defined by this subsection may be assessed for no more than one
hundred and eighty(180) calendar days for any individual incident, after which time the
City may implement other remedies as defined in this Franchise and under applicable
law.
E. The Grantee may appeal(by pursuing judicial relief)any assessment of liquidated damages
within thirty(30)days of paying the assessment.
F. Pursuant to the requirements outlined herein, liquidated damages shall not exceed the
following amounts:
1. One hundred dollars($100.00)per day for material departure from the FCC technical
performance standards;
2. One hundred dollars($100.00)per day for failure to provide the Access Channel or
any equipment related thereto which is required hereunder;
3. One hundred dollars($100.00)per day for each material violation of the Customer
Service Standards;
4. One hundred dollars ($150.00)per day for failure to provide reports or notices as
required by this Franchise;
5. One hundred dollars($250.00)per day for failure to comply with construction,
operation,or maintenance standards; and
6. One hundred dollars($250.00)per day for any material breaches or defaults not
previously listed.
G. Grantee's maintenance of the security required herein or by applicable code shall not be
construed to excuse unfaithful performance by Grantee of this Franchise;to limit liability
of Grantee to the amount of the security; or to otherwise limit the City's recourse to any
other remedy available at law or equity.
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13.9. Effect of Abandonment
A. If Grantee abandons its Cable System during the Franchise term,or fails to operate its
Cable System in accordance with its duty to provide continuous service,the City, at its
option,may obtain an injunction,or operate the Cable System,or designate another entity
to operate the Cable System temporarily until Grantee restores service under conditions
acceptable to the City,or until the Franchise is revoked and a new franchisee is selected
by the City.
B. If the City operates the Cable System,or designates another entity to operate the Cable
System,Grantee shall reimburse the City or the City's designee,as applicable, for all
reasonable costs and expenses incurred.
C. If Grantee permanently abandons its entire Cable System, for a period greater than 12
months,then, at the City's sole discretion, such Cable System may become the property
of the City,and Grantee shall then submit to the City a bill of sale and other conveyance
documents,to be approved in advance by the City Attorney,transferring ownership of
such property to the City.
SECTION 14: FRANCHISE RENEWAL
Any renewal of this Franchise shall be governed by and comply with the applicable
provisions of the ACC,the provisions of Section 47 U.S.C. § 546, as amended,unless the
procedures or substantive protections set forth therein shall be deemed to be preempted or
superseded by the provisions of any subsequent federal or State law.
SECTION 15: FRANCHISE TRANSFER OR ASSIGNMENT
A. Subject to 47 U.S.0 § 537,the Cable System and this Franchise shall not be sold,
assigned,transferred, leased or disposed of,either in whole or in part, either by
involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto,
either legal or equitable, or any right, interest or property therein pass to or vest in any
Person(hereinafter"Transfer of the Franchise")without the prior written consent of the
City, which consent shall not be unreasonably withheld.
B. Grantee shall promptly notify the City of any actual or proposed change in, or transfer of,
or acquisition by any other party in Control of Grantee. The word"Control"as used
herein is not limited to majority stock ownership but includes actual working Control in
whatever manner exercised. Every change,transfer or acquisition of Control of Grantee,
except as noted in subsection 15.H,shall make this Franchise subject to cancellation
unless and until the City shall have consented thereto which consent shall not be
unreasonably withheld.
C. The parties to the Transfer of the Franchise or change of Control shall make a written
request to the City for its approval of the Transfer of the Franchise or change of Control
(a"Transfer Application")and shall furnish all information required by law. In
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reviewing a Transfer Application,the City may inquire into any matter reasonably related
to the ability and willingness of the prospective transferee or controlling party to perform,
in accordance with 47 CFR§ 76.502, and applicable ACC.
D. In seeking the City's consent to a Transfer Application,the proposed transferee or
controlling party shall indicate whether, as applicable, it:
1. Has ever been convicted or held liable for acts involving deceit including any
violation of federal, State or local law, or is currently under an indictment,
investigation or complaint charging such acts;
2. Has ever had a judgment in an action for fraud, deceit,or misrepresentation entered
against it by any court of competent jurisdiction;
3. Has pending any material legal claim, lawsuit, or administrative proceeding arising
out of or involving a Cable System;
4. Is financially solvent, by submitting financial data, including financial information
as required by FCC Form 394; and
5. Has the legal,financial and technical capability to enable it to maintain and operate
the Cable System for the remaining Term of the Franchise.
E. In reviewing a Transfer Application,the City may inquire into the legal,technical and
financial qualifications of the prospective controlling party or transferee, and Grantee
shall assist the City in so inquiring. The City may condition said Transfer of the
Franchise or change of Control upon such terms and conditions as it deems reasonably
appropriate and as are consistent with federal law; provided, however,that any such
terms and conditions so attached shall be related to the legal,technical and financial
qualifications of the prospective controlling party or transferee. Additionally, such
Person shall effect changes as promptly as practicable in the operation of the Cable
System, if any changes are necessary to cure any violations or defaults presently in effect
or ongoing.
F. The City shall act by ordinance or resolution on the request within one hundred twenty
(120)days of the request,provided it has received all information required by law, such
as a completed FCC Form 394. Subject to the foregoing, if the City fails to render a final
decision on the request within one hundred twenty(120)days, such request shall be
deemed granted unless the requesting party and the City agree to an extension of time.
G. Within sixty(60)days of closing of any Transfer of the Franchise or change of Control, if
approved or deemed granted by the City,Grantee shall file with the City a copy of the
deed(s), agreement(s), lease(s)or other written instrument(s)evidencing such Transfer of
the Franchise or change of Control,certified and sworn to as correct by Grantee and the
transferee or new controlling entity. In the case of a Transfer of the Franchise or change
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of Control,the transferee or the new controlling entity shall upon request by the City file
its written acceptance agreeing to be bound by all of the provisions of this Franchise,
subject to applicable law.
H. Notwithstanding anything to the contrary in this Section 15,the prior approval of the City
shall not be required for any sale, assignment or transfer of the Franchise or Cable
System to an Affiliate;provided that the proposed assignee or transferee agrees in writing
to comply with all of the provisions of the Franchise, subject to applicable law.
I. Grantee may pledge the assets of the Cable System for the purpose of financing without
the consent of the City;provided that such pledge of assets shall not impair or mitigate
Grantee's responsibilities and capabilities to meet all of its obligations under the
provisions of this Franchise. In the event of a change in Control,the Grantee will
continue to be bound by all provisions of the Franchise.
J. The consent or approval of the City to any Transfer of the Franchise or change in Control
shall not constitute a waiver or release of any rights of the City.
SECTION 16: ADDITIONAL PROVISIONS
16.1. Cumulative Rights
Subject to applicable law, all rights and remedies given to the City by this Franchise shall be
in addition to, and cumulative with, any and all other rights and remedies, existing or
implied,now or hereafter available to the City.
16.2. Costs to be Borne by Grantee
Grantee shall reimburse the City for all costs of publication of this Franchise,and any notices
prior to any public hearing regarding this Franchise, contemporaneous with its acceptance of
this Franchise.
16.3. Severability
If any Section,provision, or clause of this Franchise is held by a court of competent
jurisdiction to be invalid or unenforceable,or is preempted by federal or State laws or
regulations,the remainder of this Franchise shall not be affected, except as is otherwise
provided by this Franchise.
16.4.No Recourse Against the City of Auburn
Grantee's recourse against the City or its officials, boards,commissions,agents or employees
for any claim arising from any provision or requirement of this Franchise shall be limited to
injunctive and declaratory relief, except where Grantee's claim arises from acts or omissions
of the City acting in a proprietary capacity, but only to the extent such relief is not prohibited
Resolution No. 5431
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by federal law,which does not include granting, modifying, denying, terminating, or
enforcing franchises.
16.5. Action by Agencies or Courts
Grantee shall promptly notify the City in the event that any agency of the State or federal
governments or any court with competent jurisdiction requires Grantee to act inconsistently
with any provisions of this Franchise.
16.6. Franchise Interpretation
A. All captions, headings or titles in the paragraphs or sections of this Agreement are
inserted for convenience of reference only and shall not constitute a part of this
Agreement or act as a limitation of the scope of the particular paragraph or sections to
which they apply.
B. Interpretation or construction of this Agreement shall not be affected by any
determination as to who is the drafter of this Agreement,this Agreement having been
drafted by mutual agreement of the parties.
16.7. Choice of Law and Forum
A. This Franchise and the rights of the parties hereunder shall be governed by the interpreted
in accordance with the laws of the State of Washington and venue for any action
hereunder shall be in of the county in King County,Washington.
B. Subject to the limitations set forth in RCW 4.84.330,each party agrees to bear its own
costs and attorneys' fees generated by any dispute arising out of this Franchise.
16.8. Force Majeure
A. If Grantee is prevented or delayed in the performance of any of its obligations under this
Franchise by reason of acts of god,floods, fire,hurricanes,tornadoes, earthquakes,or
other unavoidable casualties, insurrection,war,riot,vandalism, strikes, or sabotage,to
the extent such events prevent performance by Grantee and such event is beyond
Grantee's control, Grantee shall have a reasonable time under the circumstances to
perform such obligation under this Franchise,or to get a substitute for such obligation to
the satisfaction of the City.
B. If Grantee claims a force majeure event, Grantee shall give prompt written notice of the
same to the City and shall set forth its plan of action to meet the obligations of this
Franchise once the force majeure event no longer prevents Grantee's performance.
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Page 48 of 51
16.9. Conflict of Interest Cancellation
The City may, in its sole discretion,by written notice to Grantee, immediately terminate this
Franchise if it is found, after due notice and examination by the City,that there is a violation
of the Ethics in Public Service Act, Chapter 42.52 RCW.
16.10. Integration&Binding Effect
A. This Franchise,together with any subsequent amendments or addendums, constitutes the
entire agreement of the Parties and no other understandings,oral or otherwise,regarding
this Franchise shall exist or bind any of the parties.
B. This Franchise shall be binding upon, and the benefits and obligations provided for herein
shall inure to and bind,the Parties and their respective successors and assigns,provided
that this Section shall not be deemed to permit any transfer or assignment otherwise
prohibited by this Franchise.
C. This Franchise is for the exclusive benefit of the Parties and it does not create a
contractual relationship with,or exist for the benefit of, any third party, including
contractors, subcontractors,affiliates, subsidiaries, or sureties.
16.11. Time Limits Strictly Construed
Whenever this Franchise sets forth a time for any act to be performed by Grantee, such time
shall be deemed to be of the essence, and any failure of Grantee to perform within the
allotted time may be considered a breach of this Franchise.
16.12. Discriminatory Practices Prohibited
Throughout the term of this Franchise, Grantee shall fully comply with all equal employment
and nondiscrimination provisions of applicable law.
16.13. No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent relationship
between the Parties, and neither party is authorized to,nor shall either party act towards third
Persons or the public in any manner which would indicate any such relationship with the
other,nor is Grantee granted any express or implied right or authority to assume or create
any obligation or responsibility on behalf,or in the name,of the City.
16.14. Waiver
The failure of the City at any time to require performance by Grantee of any provision hereof
shall in no way affect the right of the City hereafter to enforce the same,nor shall the waiver
by the City of any breach of any provision hereof be taken or held to be a waiver of any
Resolution No. 5431
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Page 49 of 51
succeeding breach of such provision, or as a waiver of the provision itself or any other
provision.
16.15. Notice
Unless otherwise agreed to by the parties, any notice provided for under this Franchise 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:
Grantee's address shall be:
Comcast Cable Communications,LLC&
Comcast Cable Communications Management, LLC
4020 Auburn Way N
Auburn, WA 98002
Attention: Franchise Director
With a copy to:
Comcast Cable Communications,LLC&
Comcast Cable Communications Management,LLC
15815 25th Ave W
Lynnwood, WA 98087
Attention: Franchising Department
City's address shall be:
City of Auburn
Community Development and Public Works Department
25 West Main Street
Auburn,WA 98001-4998
Attention: Engineering Aide
With a copy to:
City of Auburn
City Clerk's Office
25 West Main Street
Auburn,WA 98001-4998
Attention:City Clerk
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Page 50 of 51
EXHIBIT
1 STATEMENT OF ACCEPTANCE
S. L 6'ccs7&54 A-w ,for itself, its successors and assigns, hereby accepts and
agrees to be bound by all lawful terms,conditions, and provisions of the preceding Franchise
attached hereto and incorporated herein by this reference.
[Grantee]
r)(0By: Date: "1[23'It\
Name: 94. t,a'-5k;sti44.i
Title: ;1 f j F:
w
State of (2,9/vatio )
ss.
Count of ArQe )
On this 013 day or See k-in be, ,20 1?,before me the undersigned, a Notary Public in and
for the State of (o/nra c1,0 , duly commissioned and sworn, Sars.h 6as7f2'IauJ
personally appeared and executed the foregoing instrument and acknowledged that said
execution is performed freely and voluntarily for the uses and purposed described within the
instrument, and on oath stated that he/she is authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date
hereinabove set forth.
..i '
Signature /
Notary Public in and for the State of Oo/prap`p
Residing at lig' 6-• P4i?Or4,m•t, e,rc/e Ev tile CD (fail)"
MY COMMISSION EXPIRES: I- off' . /
ELLY LINDGREN
Notary Public
State of Colorado
Notary ID#20124083711
My Commission Expires 01-02-2021
Resolution No. 5431
Franchise No. FRN19-0012
Page 51 of 51