HomeMy WebLinkAboutO-2629 - Open video system franchise grant (Special)------_.._-~---------------------~
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CITY OF MARYSVILLE
Marysville,Washington
ORDINANCE NO,2(,,2.q
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AN ORDINANCE OF THE CITY OF MARYSVILLE,
WASHINGTON GRANTING A FRANCHISE TO BLACK ROCK
CABLE, INC. TO OPERATE AN OPEN VIDEO SYSTEM IN CITY
RIGHTS-OF-WAY
WHEREAS,Grantee has applied to the City for a nonexclusive franchise to construct,
maintain, operate, replace and repair an open video system in, on,across,over,along, under or
through Rights-of-Way within the Franchise Area; and
WHEREAS, the City has considered the financial, technical and legal qualifications of
Grantee, and has determined that Grantee's plans for constructing,operating and maintaining its
Open Video System are adequate; and
WHEREAS,the City Council hereby finds that it would serve the public interest of the
citizens of the City to grant a non-exclusive Open Video System franchise to the Grantee subject to
the terms and conditions hereinafter set forth; and
WHEREAS, the City is authorized by applicable law to grant one or more nonexclusive
franchises to construct, operate and maintain an Open Video System or Systems within the
boundaries ofthe City.
NOW,THEREFORE,THE CITY COUNCIL OF THE CITY OF MARYSVILLE DOES
ORDAIN:
SECTION 1.SECTION 1.DEFINITIONS
For the purposes of this Ordinance,the following terms,phrases,words and their
derivations shall have the meanings given herein. When not inconsistent with the context,words
used in the present tense include the future, words in the plural include the singular,and words in
the singular include the plural.Words not defined shall be given their common and ordinary
meaning. The word "shall"is always mandatory and not merely directory.
1.1."Access"means the availability for noncommercial use 'iby various agencies,
institutions,organizations,groups and individuals in the community,incleading the City and its
designees,of the Open Video System to acquire, create,receive,and distribute services and
signals as permitted under applicable law including,but not limited to:
(a)"Public Access"means Access where community-based,noncommercial
organizations,groups or individual members of the general public, on a noadiscriminatory basis,
are the primary users.
(b)"Educational Access"means Access where schools :are the primary users
having editorial control over programming and services.
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(c) "Governmental Access" means Access where governmental institutions
or their designees are the primary users having editorial control over programming and services.
1.2. "Access Channel" means any Channel, or portion thereof, designated for Access
purposes or otherwise made available to facilitate or transmit Access programming or services.
1.3."Affiliate,"when used in connection with Grantee, means any Person who owns
or controls, is owned or controlled by, or is under common ownership or control with Grantee.
1.4."Bad Debt" means amounts lawfully owed by a Subscriber and accrued as
revenues on the books of Grantee,but not collected afterreasonable efforts by Grantee.
1.5. "Basic Service" means any service Tier that includes, at a minimum, the
retransmission oflocal television Broadcast Signals and local Access programming.
1.6."Broadcast Signal" means a television or radio signal transmitted over the air to a
wide geographic audience, and received by an Open Video System by antenna, microwave,
satellite dishes or any other means.
1.7. "Cable Act" means 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, as they may be amended, and any future federal cable
television laws, acts or regulations.
1.8. "Cable Internet Service" means any service offered by Grantee whereby Persons
receive access to the Internet through the Open Video System.
1.9. "Cable Operator" means any Person or groups of Persons who provides Cable
Service over the Cable System and directly or through one or more Affiliates owns a significant
interest in such Cable System or who otherwise control(s) or is(are) responsible for, through any
arrangement, the management and operation of such a Cable System.
1.10. "Cable Service" means (a) the one-way transmission to subscribers of (i) video
programming, or (ii) other programming service, and (b) subscriber interaction,if any, which is
required for the selection or use of such video programming or other programming service.
1.11."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 (as television
channel is defined by the FCC by regulation).
1.12. "City" is the City of Marysville, Washington, a municipal corporation, and all the
areawithin its boundaries, as such may change from time to time.
1.13."City Council" means the Marysville City Council, or its successor, the governing
body of the City of Marysville.
1.14."Connection",with regard to connections to public buildings, means installation
of fiber optic or coaxial cable or other System-related facilities through the outer wall of the
building leaving adequate excess space to permit further connection to other facilities, plant or
cable within the building.
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1.15. "Dark Fiber" is optical fiber infrastructure instalIed and maintained by Black
Rock, that does not transmit light pulses for the transmission of information, but which is
capable of such transmission upon installation of optronic equipment by either Black Rock or its
subscribers.
1.16."Expanded Basic Service" means the Tier of optional video programming
services, which is the level of service received by most Subscribers above Basic Service, and
does not include Premium Services.
1.17."FCC"means the Federal Communications Commission.
1.18."Franchise"means the document in which this definition appears, i.e., this
ordinance contractual agreement, executedbetween the City and Grantee, containing the specific
provisions of the authorization granted, including references, specifications, requirements and
other related matters.
1.19."Franchise Area" means the area within the jurisdictional boundaries of the City,
including any areas annexed bythe City during the term of this Franchise.
1.20."Franchise Authority" means any municipal entity with the legal authority to
regulate the public rights-of-way.
1.21. "GAAP" means generalIyaccepted accounting principles.
1.22."Grantee"means Black Rock Cable, Inc., or its lawful successor, transferee or
assignee.
1.23. "Gross Revenues" means any and alI revenue derived directly or indirectly by
Grantee, or by Grantee's Affiliates, from the operation of Grantee's Open Video System to
provide Open Video Services in the Franchise Area. In the case of revenue from a single
Subscriber located both within and without the Franchise area, the revenue from that Subscriber
shalI be divided between the City and any other Franchising Authority(s) according to the
portion of the cable used by the Subscriberwithin each Franchising Authority's Franchise Area.
In addition, gross revenues under thisparagraph include any advertising revenues received by an
open video system operator or its affiliates in connection with the provision of video
programming, where such revenues are included in the calculation of the incumbent cable
operator's franchise fees. Gross revenues do not include revenues colIected by unaffiliated
programming providers, such as subscriberor advertising revenues. Any gross revenues fee that
the open video system operator or its affiliate collects from video programming providers shalI
be excluded from gross revenues.
1.24. "Open Video System" or "System" means a system of facilities that is certified as
an Open Video System by the FCC pursuant to 47 CFR 76.1500 et seq. and regularly provides
Open Video System Services to subscribers of Black Rock's System. This may include a set of
transmission paths and associated signal generation, reception and control equipment that may
provide Cable Service,or a system of facilities that may provide Dark Fiber services ("Dark
Fiber Service").
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1.25."Open Video System Services"or "OVS Services"means such services as an
Open Video System Operator may provide on or through a System as allowed or authorized by
47 U.S.C. §573 (1996)
1.26."Operator"or "Open Video System Operator"means any person or group of
persons who provide Open Video System Service over an Open Video System and directly or
through one or more affiliates owns a significant interest in such Open Video System, or
otherwise controls or is responsible for the management and operation of such Open Video
System.
1.27."Person"means any individual,sole proprietorship,partnership,association,or
corporation,or any other form of entity or organization.
1.28."Premium Service"means programming choices (such as movie Channels,pay-
per-view programs,or video on demand) offered to Subscribers on a per-Channel,per-program
or per-event basis.
1.29."Right-of-Way"means each of the following which have been dedicated to the
public or are hereafter dedicated to the public and are maintained under public authority or by
others and located within the City: streets,roadways,highways,avenues, lanes, alleys,bridges,
sidewalks,easements,rights-of-way and similar public property and areas.
1.30."State"means the State of Washington.
1.31."Subscriber"means any Person who elects to subscribe to, for any purpose,
service provided by Grantee by means of or in connection with the Open Video System and
whose premises are physically wired and lawfully activated to receive service from Grantee's
Open Video System.
1.32."Telecommunications"means the transmission,between or among points
specified by the user,of information of the user's choosing,without change in the form or
content of the information as sent and received (as provided in 47 U.S.C.153(43».
1.33."Telecommunications Service" means the offering of Telecommunications for a
fee directly to the public,or to such classes of users as to be effectively available directly to the
public, regardless of the facilities used (as provided in 47 U.S.C.153(46».
1.34."Tier"means a group of Channels for which a single periodic subscription fee is
charged.
1.35."Video Programming Provider"means any person or group of persons who has
the right under the copyright laws to select and contract for carriage of specific video
programming on an open video system.
SECTION 2. GRANT OF FRANCHISE
2.1.Grant
(A) The City hereby grants to Grantee a nonexclusive authorization to make
reasonable and lawful use of the Rights-of-Way within the City to construct,operate,maintain
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and reconstruct an Open Video System for the purpose of providing Open Video System
Services and Dark Fiber Services subject to the terms and conditions set forth in this Franchise.
In order to provide any other services over the facilities that constitute the Open Video System,
the Grantee shall be required to obtain any additional governmental authorization(s) required by
federal, State or local law. This Franchise in no way authorizes Grantee to operate a Cable
Service.
(B) Each and every term,provision or condition herein is subject to the
provisions of State law, federal law, the Marysville Municipal Code, and the ordinances and
regulations enacted pursuant thereto.
(C)This Franchise shall not be interpreted to prevent the City from imposing
additional lawful conditions, including additionalcompensation conditions for use of the Rights-
of-Way, should Grantee provide service other than Open Video System Services or Dark Fiber
Service.
(D) No rights shall pass to Grantee by implication.Without limiting the
foregoing, by way of example and not limitation, this Franchise shall not include or be a
substitute for:
(I)Any other permit or authorization required for the privilege of
transacting and carrying on abusiness within the City that maybe required by the ordinances and
laws of the City;
(2) Any permit, agreement, or authorization required by the City for
Right-of-Way users in connection with operations on or in Rights-of-Way or public property
including, by way of example and not limitation,street cut permits; or
(3) 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.
(E) This Franchise is intendedto convey limited rights and interests only as to
those Rights-of-Way in which the City has an actual interest.It is not a warranty of title or
interest in any Right-of-Way; it does not provide the Grantee with any interest in any particular
location within the Right-of-Way; and it does not confer rights other than as expressly provided
in the grant hereof.
(F) This Franchise does not authorize Grantee to provide Telecommunications
Service. This Franchise is not a bar to imposition of any lawful conditions on Grantee with
respect to Telecommunications,whether similar,different or the same as the conditions specified
herein. This Franchise does not relieve Grantee of any obligation it may have to obtain from the
City an authorization to provide Telecommunications Services, or relieve Grantee of its
obligation to comply with any such authorizations that may be lawfully required.
2.2. Use of Rights-of-Way
(A) Subject to the City's supervision and control, Grantee may erect, install,
construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the
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Rights-of-Way within the City such wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, pedestals, attachments and other property and equipment as are necessary and
appurtenant to the operation of an Open Video System within the City.
(B) Grantee must follow City-established requirements for placement of Open
Video System facilities in Rights-of-Way, including the specific location of facilities in the
Rights-of-Way, and must in any event install Open Video System facilities in a manner that
minimizes interference with the use of the Rights-of-Way by others,including others that may be
installing communications facilities. Within limits reasonably related to the City's role in
protecting public health, safety and welfare, the City may require that Open Video System
facilities be installed at a particular time, at a specific place or in a particular manner as a
condition of access to a particular Right-of-Way; may deny access if Grantee is not willing to
comply with City's requirements; and may remove, or require removalof, any facility that is not
installed in compliance with the requirements established by the City, or which is installed
without prior City approval of the time, place or manner of installation, and charge Grantee for
all the costs associated with removal; and may require Grantee to cooperate with others to
minimize adverse impacts on the Rights-of-Way through joint trenching and other arrangements.
With regard to its management of the Rights-of-Way, the City shall treat the Grantee and other
users of the Rights-of-Way in a competitively neutral and nondiscriminatorymanner.
2.3.Effective Date and Term of Franchise
This Franchise and the rights, privileges and authority grantedhereunder shall take effect
five (5) days after publication (the "Effective Date"), and shall terminate ten years later on the
tenth anniversary of the Effective Date, unless terminated sooneras hereinafter provided.
2.4.Franchise Nonexclusive
This Franchise shall be nonexclusive, and subject to all prior rights, interests, easements
or licenses granted by the City to any Person to use any property,Right-of-Way, right, interest or
license for any purpose whatsoever, including the right of the City to use same for any purpose it
deems fit, including the same or similar purposes allowed Grantee hereunder. 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 Open Video
Systems as the City deems appropriate.
2.5. Police Powers
(A)Grantee's rights hereunder are subject to the police powers of the City to
adopt and enforce ordinances necessary to the safety, health, and welfare of the public, and
Grantee agrees to comply with all laws and ordinances of general applicability enacted, or
hereafter enacted, by the City or any other legally constituted governmental unit having lawful
jurisdiction over the subject matter hereof. The City shall have the right to adopt, from time to
time, such ordinances as may be deemed necessary in the exercise of its police power; provided
that such ordinances shall be reasonable.
(B) The City reserves the right to exercise its police powers, notwithstanding
anything in this Franchise to the contrary, and any conflict between the provisions of this
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Franchise and any other present or future lawful exercise of the City's police powers shall be
resolved in favor of the latter.
2.6.Familiarity with Franchise
Grantee acknowledges and warrantsby acceptance of the rights, privileges and agreement
granted herein, that it has carefully read and fully comprehends the terms and conditions of this
Franchise and is willing to and does accept all lawful and reasonable risks of the meaning of the
provisions, terms and conditions herein. The Grantee further acknowledges and states that it has
fully studied and considered all requirements and provisions of this Franchise, and finds that the
same are commercially practicable at this time.
2.7 Effect of Acceptance
By accepting the Franchise, the Grantee:(I)acknowledges and accepts the City's legal
right to issue and enforce the Franchise;(2)accepts and agrees to comply with each and every
provision of this Franchise, subject to applicable law; and (3)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.
SECTION 3.FEE PAYMENT AND FINANCIAL CONTROLS
3.1. Fee
As compensation for the benefits and privileges granted under this Franchise and in
consideration of permission to use the City's Rights-of-Way, Grantee shall pay as a fee to the
City, throughout the duration of this Franchise, an amount equal to five percent (5%)of
Grantee's Gross Revenues, provided that such percentage rate is subject to the provisions of 47
U.S.C. §573(c)(2)(B).
3.2.Payments
Grantee's fee payments to the City shall be computed quarterly for the preceding
calendar quarter ending March 31, June 30, September 30, and December 31. Each quarterly
payment shallbe due and payableno later than thirty (30) days after said dates.
3.3.Acceptance of Payment and Recomputation
No acceptance of any payment shall be construed as an accord by the City that the
amount paid is, in fact, the correctamount, 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.
3.4.Quarterly 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, as
well as in detail,of Grantee's Gross Revenues and the computation of the payment amount.
Such reports shall detail all Gross Revenues of the Open Video System and shall be drafted in
accordance with GAAP.
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3.5.Annual Fee Reports
Grantee shall, within sixty (60) days after the end of each year, furnish to the City a
statement stating the total amount of Gross Revenues for the year and all payments, deductions
and computations for the period.
3.6.Audits
On an annual basis, upon thirty (30) days prior written notice, the City shall have the
right to conduct an independent audit of Grantee's records reasonably related to the
administration or enforcement of this Franchise, in accordance with GAAP. If the audit shows
that fee payments have been underpaid by three percent (3%) or more, Grantee shall pay the total
cost of the audit.
3.7.Late Payments
In the event any payment due quarterly is not received within thirty (30) days from the
end of the calendar quarter, Grantee shall pay interest on the amount due at the rate of one
percent (I %)per month, compounded daily, calculated from the date the payment was originally
due until the date the City receives the payment.
3.8.Tax Liability
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 and other taxes, business license fees or other payments. Payment of the
fees under this Franchise shall not exempt Grantee from the payment of any other license fee,
permit fee, tax or charge on the business, occupation, property or income of Grantee that may be
lawfully imposed by the City.
3.9.Additional Commitments Not Franchise Fees
No term or condition in this Franchise shall in any way modify or affect Grantee's
obligation to pay Franchise Fees. Although the total sum of Franchise Fee payments and
additional commitments set forth elsewhere in this Franchise may total more than five percent
(5%)of Grantee's Gross Revenues in any 12-month period, Grantee agrees that the additional
commitments herein are not Franchise Fees, nor are they to be offset or credited against any
Franchise Fee payments due to the City, nordo they represent an increase in Franchise Fees to be
passed through to subscribers.
3.10.Tax Liability
The Franchise Fees shall be in addition to any and all taxes and levies or assessments that
are now or hereafter required to be paid by businesses in generalby any law of the City, the State
or the United States including, without limitation, sales, use and other taxes, business license fees
or other payments. Payment of the Franchise Fees under this Franchise shall not exempt Grantee
from the payment of any other license fee, permit fee, tax or charge on the business, occupation,
property or income of Grantee that may be lawfully impose by the City. Any other license fees,
taxes or charges shall be of general applicability in nature and shall not be levied against Grantee
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solely because of its status as a Cable Operator, or against Subscribers, solely because of their
status as such.
3.11.Payment on Termination
If this Franchise terminates for any reason, the Grantee shall file with the City within
ninety (90)calendar days of the date of the termination, a financial statement showing the Gross
Revenues received by the Grantee since the end of the previous fiscal year. The City reserves
the right to satisfy any remaining financial obligations of the Grantee to the City by utilizing the
funds available in the irrevocable letter of credit or performance bond provided by the Grantee.
SECTION 4.ADMINISTRATION AND REGULATION
4.1.Authority
(A) The City shall be vested with the power and right to reasonably regulate
the exercise of the privileges permitted by this Franchise in the public interest, or to delegate that
power and right, or any part thereof, to the extent permitted under law to any agent in its sole
discretion.
(B) Nothing in this Franchise shall limit nor expand the City's right of eminent
domain under State law.
(C) The Grantee and the City shall be entitled to all rights and be bound by all
changes in local, State and federal law that occur subsequent to the effective date of this
Franchise. The Grantee and the City acknowledge that their rights and obligations under this
Franchise are explicitly subject to all such changes.
4.2.Time Limits Strictly Construed
Whenever this Franchise sets forth a time for any act to be performed by Grantee, such
time shall be deemed to be of the essence, and any failure of Grantee to perform within the
allotted time may be considered a material breach of this Franchise, and sufficient grounds for
the City to invoke any relevant remedy.
SECTION 5.FINANCIAL AND INSURANCE REQUIREMENTS
5.1.Indemnification
(A) General Indemnification. Grantee shall indemnify, defend and hold
harmless the City, its officers, officials, boards, commissions, agents and employees, from any
action or claim for injury, damage, loss, liability, cost or expense,including court and appeal
costs and attorneys'fees or expenses, arising from any casualty or accident to Person or
property,including,without limitation, copyright infringement,defamation,and all other
damages in any way arising out of, or by reason of, any construction, excavation,operation,
maintenance,reconstruction,or any other act done under this Franchise,by or for Grantee, its
agents, or its employees,or by reason of any neglect or omission of Grantee. Grantee shall
consult and cooperate with the City while conducting its defense of the City.
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(B)Indemnification for Relocation. Grantee shall indemnify the City for any
damages, claims, additional costs or expenses assessed against, or payable by,the City arising
out of, or resulting from, directly or indirectly,Grantee's failure to remove,adjust or relocate any
of its facilities in the Rights-of-Way in a timely manner in accordance with any relocation
required by the City.
(C)Procedures and Defense. The City shall give the Grantee timely written
notice of any claim or of the commencement of any action, suit or other proceeding covered by
the indemnity in this Section. If a claim or action arises, the City or any other indemnified party
shall then tender the defense of the claim to Grantee, which defense shall be at Grantee's
expense. The City may participate in the defense of a claim and, in any event,Grantee may not
agree to any settlement of claims financially affecting the City without the City's prior written
approval, which approval shall not be unreasonably withheld.
(D) Non-waiver. The fact that Grantee carries out any activities under this
Franchise through independent contractors shall not constitute an avoidance of or defense to
Grantee's duty of defense and indemnification under this subsection.
(E) Expenses.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 expenses incurred by the City in defending itself
with regard to any action, suit or proceeding indemnified by Grantee. The City's expenses shall
include all out-of-pocket expenses, such as consultants'fees, and shall also include the
reasonably value of any services rendered by the City Attorney or his/her assistants or any
employees of the City or its agents.
5.2.Insurance
(A) General Requirement. Grantee must have adequate insurance during the
entire term of this Franchise to protect the City against claims for death or injuries to Persons or
damages to property or equipment that in any way relate to, arise from or are connected with this
Franchise, or involve Grantee, its agents,representatives,contractors,subcontractors and their
employees.
(B) Minimum Insurance Limits. Grantee shall maintain in full force and effect
at its own cost and expense each of the following policies of insurance:
(I)Commercial General Liability insurance with limits of no less than
one million dollars ($1,000,000.00)per occurrence and two million dollars
($2,000,000.00)excess liability.
(2) Commercial Automobile Liability insurance with rrurumum
combined single limits of one million dollars ($1,000,000.00) each occurrence and two
million dollars ($2,000,000.00)excess liability with respect to each of Grantee's owned,
hired and non-owned vehicles assigned to or used in the operation of the Open Video
System in the City.
(3)Employer's Liability: One million dollars ($1,000,000.00).
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(C)Each policy shall provide that the insurance shall not be canceled or
materially changed so as to be out of compliance with these requirements without forty-five (45)
days'written notice first provided to the City,via certified mail,and ten (10)days'notice for
nonpayment of premium.If the insurance is canceled or materially altered so as to be out of
compliance with the requirements of this subsection within the term of this Franchise,Grantee
shall provide a replacement policy.Grantee agrees to maintain continuous uninterrupted
insurance coverage,in at least the amounts required,for the duration of this Franchise and, in the
case of the Commercial General Liability,for at least one (I)year after expiration of this
Franchise.
(D)Self insurance is not permitted for this Franchise,unless approved III
advance and in writing by the City's Risk Administrator.
5.3.Deductibles /Certificate of Insurance
Any deductible of the policies shall not in any way limit Grantee's liability to the City.
(A)Endorsements.
(1)All policies shall contain,or shall be endorsed so that:
(a) The City, its officers,officials,boards,commissions,
employees and agents are to be covered as, and have the rights of,
additional insureds 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 or repair, or ownership of the Open
Video System;
(b)Grantee's insurance coverage shall be primary insurance
with respect to the City, its officers,officials,boards,commissions,
employees and agents.Any insurance or self-insurance maintained by the
City, its officers,officials,boards,commissions,employees and agents
shall be in excess of the Grantee's insurance and shall not contribute to it;
and
(c)Grantee's insurance shall apply separately to each insured
against whom a claim is made or lawsuit is brought,except with respect to
the limits of the insurer's liability.
(B)Acceptability of Insurers.The insurance obtained by Grantee shall be
placed with insurers with a Best's rating of no less than "A-."
(C)Verification of Coverage.The Grantee shall furnish the City with
certificates of insurance and endorsements or a copy of the page of the policy reflecting blanket
additional insured status.The certificates and endorsements for each insurance policy are to be
signed by a person authorized by that insurer to bind coverage on its behalf The certificates and
endorsements for each insurance policy are to be on standard forms or such forms as are
consistent with standard industry practices,and are to be received and approved by the City prior
to the commencement of activities associated with this Franchise.The Grantee hereby warrants
that its insurance policies satisfy the requirements of this Franchise and City laws.
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5.4.Irrevocable Letter of Credit or Performance Bond
(A) No later than the Effective Date of this Franchise, Grantee shall establish
and provide to the City, as security for the faithful performance by Grantee of all of the
provisions of this Franchise, an irrevocable letter of credit from a financial institution satisfactory
to the City or a performance bond in the amount often thousand dollars ($10,000.00).
(B) The irrevocable letter of credit or performance bond may be drawn upon
by the City for purposes including,but not limited to, the following:
(I)Failure of Grantee to pay the City sums due under the terms of this
Franchise;
(2) Reimbursement of costs borne by the City to correct Franchise
violations not corrected by Grantee; and
(3) Monetary remedies or damages assessed against Grantee due to
default or breach of Franchise requirements.
(C)The City shall give Grantee written notice of any withdrawal under this
subsection upon such withdrawal.Within seven (7) days following receipt of such notice,
Grantee shall restore the irrevocable letter of credit or performance bond to the amount required
under this Franchise. Grantee's maintenance of the irrevocable letter of credit or performance
bond shall not be construed to excuse unfaithful performance by Grantee or to limit the liability
of Grantee to the amount of the irrevocable letter of credit or. performance bond or otherwise to
limit the City's recourse to anyother remedy available at law or equity.
(D) Grantee shall have the right to appeal to the City Council for
reimbursement in the event Grantee believes that the irrevocable letter of credit or performance
bond was drawn upon improperly.Grantee shall also have the right of judicial appeal if Grantee
believes the irrevocable letter of credit or performance bond has not been properly drawn upon in
accordance with this Franchise. Any funds the City erroneously or wrongfully withdraws from
the irrevocable letter of credit or performance bond shall be returned to Grantee with interest,
from the date of withdrawal at a rate equal to the prime rate of interest as quoted in the Wall
StreetJournal.
SECTION 6.PRIVACY
6.1.Subscriber Privacy
Grantee shall fully comply with any provisions regarding the privacy rights of
Subscribers contained in federal,State, or local laws.
SECTION 7.REPORTS AND RECORDS
7.1. Open Records
Grantee shall manage all of its operations in accordance with a policy of keeping its
documents and records open and accessible to the City. The City shall have access to, and the
right to inspect, any books and records of Grantee, its parent corporations and affiliates which
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are reasonably related to the administration or enforcement of the terms of this Franchise.
Grantee shall not deny the City access to any of Grantee's records on the basis that Grantee's
records are under the control of any parent corporation,affiliate or a third party. The City may,
in writing,request copies of any such records or books and Grantee shall provide such copies
within thirty (30) days of the transmittal of such request. One (I)copy of all reports and records
required under this or any other subsection shall be furnished to the City, at the sole expense of
Grantee.If the requested books and records are too voluminous,or for security reasons cannot
be copied or removed,then Grantee may request, in writing within ten (10)days, that the City
inspect them at Grantee's office.If any books or records of Grantee are not kept in a local office
and not made available as copies to the City upon written request as set forth above, and if the
City determines that an examination of such records is necessary or appropriate for the
performance of any of the City's duties,administration or enforcement of this Franchise, then all
reasonable travel and related expenses incurred in making such examination shall be paid by
Grantee.
7.2.Confidentiality
The City agrees to treat as confidential any books or records that constitute proprietary or
confidential information under federal or State law, to the extent Grantee makes the City aware
of such confidentiality.Grantee shall be responsible for clearly and conspicuously stamping the
word "Confidential"on each page that contains confidential or proprietary information,and shall
provide a brief written explanation as to why such information is confidential under State or
federal law.If the City believes it must release any such confidential books and records in the
course of enforcing this Franchise,or for any other reason, it shall advise Grantee in advance so
that Grantee may take appropriate steps to protect its interests.If the City receives a demand
from any person for disclosure of any information designated by Grantee as 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 party demanding access to such information within a
reasonable time. Until otherwise ordered by a court or agency of competent jurisdiction,the City
agrees that, to the extent permitted by State and federal law, it shall deny access to any of
Grantee's books and records marked confidential as set forth above to any person.
7.3.Records Required
(A) Grantee shall at all times maintain, and shall furnish to the City upon request:
(I)A complete set of maps showing the exact location of all Open
Video System equipment and facilities in the Right-of-Way,but excluding detail on proprietary
electronics contained therein and Subscriber drops. As-built maps including proprietary
electronics shall be available at Grantee's offices for inspection by the City's authorized
representative(s)or agent(s) and made available to such persons during the course of inspections
as reasonably conducted by the City. These maps shall be certified as accurate by an appropriate
representative of the Grantee;
(2) A copy of all FCC filings on behalf of Grantee which relate to the
operation of the Open Video System in the City; and
(3) The number of Subscribers added or terminated,all construction
activity, and total homes passed for the previous twelve (12)months.
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7.4.Request for Documents
Upon written request, Grantee shall submit to the City copies of any applications,
notifications, communications and documents of any kind, submitted by Grantee or its Affiliates
to any federal, State, or local courts, regulatory agencies and other government bodies if such
documents directly relate to the operations of Grantee's System within the Franchise Area.
Grantee shall submit such documents to the City no later than forty-five (45) days after receipt of
the City's request. Grantee shall not claim confidential, privileged or proprietary rights to such
documents unless under federal, State, or local law such documents have been determined to be
confidential by a court of competent jurisdiction, or a federal or state agency.
SECTION 8.GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
8.1.Right to Construct
Subject to applicable laws, regulations, rules, resolutions and ordinances of the City and
the provisions of this Franchise, Grantee may perform all construction in the Rights-of-Way for
any facility needed for the maintenance or extension of Grantee's Open Video System.
8.2.Right-of-Way Meetings
All work authorized and required hereunder shall be done in a safe, thorough and
workmanlike manner. All installations of equipment shall be durable and installed in accordance
with good engineering practices.
8.3.General Standard
All work authorized and required hereunder shall be done in a safe, thorough and
workmanlike manner. All installations of equipment shall be permanent in nature, durable and
installed in accordance with good engineering practices.
8.4.Permits Required for Construction
Prior to doing any work in the Right-of Way or other public property, Grantee shall apply
for, and obtain, appropriate permits from the City. As part of the permitting process, the City
may impose such conditions and regulations as are necessary for the purpose of protecting any
structures in such Rights-of-Way, proper restoration of such Rights-of-Way and structures, the
protection of the public, and the continuity of pedestrian or vehicular traffic. Such conditions
may also include the provision of a construction schedule and maps showing the location of the
facilities to be installed in the Right-of-Way. Grantee shall pay all applicable fees for the
requisite City permits received by Grantee.
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8.5.Joint TrenchingIBoring
Whenever it is possible and reasonably and financially practicable to joint trench or share
bores or cuts, Grantee shall work with other providers (such as telecommunications, cable, gas or
electric companies), licensees, permitees and franchisees so as to reduce so far as possible the
number of Right-of-Way cutswithin the Franchise Area.
8.6.Movement of Facilities During Emergencies
During emergencies, the City may move Grantee's facilities without prior notice.
8.7.Emergency Permits
In the event that emergency repairs are necessary, Grantee shall immediately notify the
City of the need for such repairs. Grantee may initiate such emergency repairs immediately, and
shall apply for appropriate permits within forty-eight (48) hours after discovery of the
.emergency.
8.8.Compliance with Applicable Codes
(A)
construction codes,
regulations.
City Construction Codes. Grantee shall comply with all applicable City
including, without limitation, all building codes, and zoning codes and
(B) Tower Specifications. Antenna supporting structures (towers) shall be
designed for the proper loading as specified by the Electronics Industries Association {EIA), as
those specifications may be amended from time to time. Antenna supporting structures (towers)
shall be painted, lighted, erected and maintained in accordance with all applicable rules and
regulations of the Federal Aviation Administration and all other applicable federal, State, and
local codes or regulations.
(C)Safety Codes. Grantee shall comply with all federal, State and City safety
requirements, rules, regulations, laws and practices, and employ all necessary devices as required
by applicable law during construction, operation and repair of its Open Video System. By way
of illustration and not limitation, Grantee shall comply with the National Electric Code,National
Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards.
(D) One Call. Prior to placing any underground facilities, Grantee will join
and maintain membership in good standing with the Utility Coordinating Council One Call
Center or other similar or successor organization which is designated to coordinate underground
equipment locations and installations. Grantee is familiar with Ch. 19.122 (Washington State's
"Underground Utilities" statutes) and understands, will abide by and adhere to local procedures,
customs and practices relating to the one call locator service program.
8.9. GIS Mapping
Grantee shall comply with any generally applicable ordinances, rules,regulations and
policies of the City regarding geographic information systems mapping for users of the Rights-
of-Way, provided that all similarly situated users of the Rights-of-Way must also accordingly
comply.
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8.10.Minimal Interference
Work in the Right-of-Way, on other public property, near public property, or on or near
private property shall be done in a manner that causes the least interference with the rights and
reasonable convenience of property owners and residents.Grantee's Open Video System shall
be constructed and maintained in such manner as not to interferewith 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 Rights-of-Way by, or under, the City's authority. The
Grantee's Open Video System shall be located, erected and maintained so as not to endanger or
interfere with the lives of Persons, or to interfere with new improvements the City may deem
proper to make or to unnecessarily hinder or obstruct the free use of the Rights-of-Way or other
public property, and shall not interfere with the travel and.use of public places by the public
during the construction, repair, operation or removal thereof, and shall not obstruct or impede
traffic. 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.
8.11.Safety
Grantee shall provide and use any equipment and facilities necessary to control and carry
Grantee's signals so as to prevent injury to the City's property or property belonging to any
Person. Grantee, at its own expense, shall repair, renew, change and improve its facilities to
keep them in good repair, and safe and presentable condition. All excavations made by Grantee
in the Rights-of-Way shall be properly safeguarded for the prevention of accidents by the
placement of adequate barriers, fences or boarding, the bounds of which, during periods of dusk
and darkness, shall be clearly designated by warning lights.
8.12.Underground Construction and Useof Poles
(A) When required by general ordinances, resolutions, regulations or rules of
the City or applicable State or federal law, Grantee's Open Video System shall be placed
underground at Grantee's expense. Placing facilities underground does not preclude the use of
ground-mounted appurtenances.
(B) Where electric and telephone lines are installed underground at the time of
Open Video System construction, or when all such wiring is subsequently placed underground,
all Open Video System lines shall also be placed underground with other wireline service at no
expense to the City or Subscribers unless funding is generally available for such relocation to all
users of the Rights-of-Way. Related Open Video System equipment, such as pedestals, must be
placed in accordance with the City's applicable code requirements and rules. In areas where
either electric or telephone utility wiring is aerial, the Grantee may install aerial cable, except
when a property owner or resident requests underground installation and agrees to bear the
additional cost in excess of aerialinstallation.
(C)The Granteeshall utilize existingpoles and conduit wherever possible.
(D) In the event Grantee cannot obtain the necessary poles and related
facilities pursuant to a pole attachment agreement, and only in such event, then it shall be lawful
for Grantee to make all needed excavations in the Rights-of-Way for the purpose of placing,
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erecting, laying, maintaining, repairing, and removing poles, supports for wires and conductors,
and any other facility needed for the maintenance or extension of Grantee's Open Video System.
All poles of Grantee shall be located as designated by the proper City authorities and only upon
written consent of the City.
(E) This Franchise does not grant, give or convey to the Grantee the right or
privilege to install its facilities in anymanner on specific utility poles or equipment of the City or
any other Person.Copies of agreements for the use of poles, conduits or other utility facilities
must be provided upon request by the City.
(F)If the City requests, when Grantee is constructing,relocating or placing
ducts or conduits in public rights-of-way, that Grantee provide the City with additional duct or
conduit and related structures necessary to access the conduit, then such request shall be
governed by federal, State and local law, such as RCW 35.99.070.
8.13.Electrical Bonding
Grantee shall ensure that all drops are properly bonded to the electrical power ground at
the horne, consistent with applicable code requirements. All non-conforming or non-performing
drops shall be replaced by Grantee as necessary.
8.14.Repair and Restoration of Property
(A)The Grantee shall protect public and private properly from damage.If
damage occurs, the Grantee shall promptly notify the property owner within twenty-four (24)
hours in writing.
(B)Whenever Grantee disturbs or damages any Right-of-Way, other public
property or any private property, Grantee shall promptly restore the Right-of-Way or property to
at least its prior condition, normal wear and tear excepted, at its own expense.
(C).Rights-of-Way and Other Public Property. Grantee shall warrant any
restoration work performed by or for Grantee in the Right-of-Way or on other public property for
one (I) year.If restoration is not satisfactorily performed by the Grantee within a reasonable
time, 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 the
cost of those repairs from the Grantee. Within thirty (30) days of receipt of an itemized list of
those costs, including the costs oflabor,materials and equipment, the Grantee shallpay the City.
(D) Private Prooertv. Upon completion of the work that caused any
disturbance or damage, Grantee shall promptly commence restoration of private property, and
will use its best efforts to complete the restoration within seventy-two (72) hours, considering the
nature of the work that must beperformed.
8.15.Discontinuing Use/Abandonment of Open Video System Facilities
Whenever Grantee intends to discontinue using any facility within the Rights-of-Way,
Grantee shall submit for the City's approval a complete description of the facility and the date on
which Grantee intends to discontinue using the facility. Grantee may remove the facility or
request that the City permit it to remain in place.Notwithstanding Grantee's request that any
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such facility remain in place,the City may require Grantee to remove the facility from the Right-
of-Way or modify the facility to protect the public health, welfare, safety, and convenience,or
otherwise serve the public interest. The City may require Grantee to perform a combination of
modification and removal of the facility.Grantee shall complete such removal or modification
in accordance with a schedule set by the City. 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 Right-of-Way,in the same manner and degree as if the facility were in active
use, and Grantee shall retain all liability for such facility.If Grantee abandons its facilities, the
City may choose to use such facilities for any purpose whatsoever including, but not limited to,
Access purposes.
8.16.Movement of Open Video System Facilities For City Purposes
The City shall have the right to require Grantee to relocate, remove, replace,modify or
disconnect Grantee's facilities and equipment located in the Rights-of-Way or on any other
property of the City in the event of an emergency or when reasonable public convenience
requires such change (for example,without limitation, by reason of traffic conditions,public
safety,Right-of-Way vacation,Right-of-Way construction,change or establishment of Right-of-
Way grade,installation of sewers, drains, gas or water pipes, or any other types of structures or
improvements by the City for public purposes). Such work shall be performed at the Grantee's
expense.Except during an emergency,the City shall provide reasonable notice to Grantee,not
to be less than five (5)business days, and allow Grantee the opportunity to perform such action.
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.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.If the City
requires Grantee to relocate its facilities located within the Rights-of-Way,the City shall make a
reasonable effort to provide Grantee with an alternate location within the Rights-of-Way.If
funds are generally made available to users of the Rights-of-Way for such relocation,Grantee
shall be entitled to its pro rats share of such funds.
If the Grantee fails to complete this work within the time prescribed and to the City's
satisfaction,the City may cause such work to be done and bill the cost of the work to the
Grantee,including all costs and expenses incurred by the City due to Grantee's delay. in such
event, the City shall not be liable for any damage to any portion of Grantee's Open Video
System. Within thirty (30) days of receipt of an itemized list of those costs, the Grantee shall
pay the City.
8.17.Movement of Open Video System Facilities for Other Franchise Holders
If any removal,replacement,modification or disconnection of the Open Video System is
required to accommodate the construction,operation or repair of the facilities or equipment of
another City franchise holder,Grantee shall, after at least thirty (30)days'advance written
notice, take action to effect the necessary changes requested by the responsible entity. Grantee
may require that the costs associated with the removal, replacement,modification,disconnection
or relocation be paid by the benefited party.
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8.18.Temporary Changes for Other Permittees
At the request of any Person holding a valid permit and upon reasonable advance notice,
Grantee shall temporarily raise,lower or remove its wires as necessary to permit the moving of a
building,vehicle,equipment or other item. The permit holder must bear the expense of such
temporary changes,and Grantee may require a reasonable deposit of the estimated payment in
advance.
8.19.Reservation of City Use of Right-of-Way
Nothing in this Franchise shall prevent the City or public utilities owned,maintained or
operated by public entities other than the City from constructing sewers;grading,paving,
repairing or altering any Right-of-Way;laying down,repairing or removing water mains;or
constructing or establishing any other public work or improvement.All such work shall be done,
insofar as practicable,so as not to obstruct,injure or prevent the use and operation of Grantee's
Open Video System.
8.20.Tree Trimming
Grantee may prune or cause to be pruned,using proper pruning practices,any tree in the
City's Rights-of-Way which interferes with Grantee's Open Video System.Grantee shall
comply with any general ordinance or regulations of the City regarding tree trimming.Except in
emergencies,Grantee may not prune trees at a point below thirty (30) feet above sidewalk grade
until one (1) week written notice has been given to the owner or occupant of the premises
abutting the Right-of-Way in or over which the tree is growing.The owner or occupant of the
abutting premises may prune such tree at his or her own expense during this one (l)week period.
If the owner or occupant fails to do so,Grantee may prune such tree at its own expense.For
purposes of this subsection,emergencies exist when it is necessary to prune to protect the public
or Grantee's facilities from imminent danger only.
8.21.Inspection of Construction and Facilities
The City may inspect any of Grantee's facilities,equipment or construction at any time
upon at least twenty-four (24) hours notice,or, in case of emergency,upon demand without prior
notice.If an unsafe condition is found to exist, the City, in addition to taking any other action
permitted under applicable law, may order Grantee,in writing,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 correct, inspect,administer and repair the unsafe condition
if Grantee fails to do so, and to charge Grantee therefor.
8.22.Stop Work
(A) On notice from the City that any work is being performed contrary to the
provisions of this Franchise,or in an unsafe or dangerous manner as determined by the City, or
in violation of the terms of any applicable permit,laws,regulations,ordinances,or standards,the
work may immediately be stopped by the City.
(B)The stop work order shall:
(l)Be in writing;
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(2) Be given to the Person doing the work or posted on the work site;
(3) Be sent to Grantee by overnight delivery at the address given
herein;
(4) Indicate the nature of the alleged violation or unsafe condition; and
(5) Establish conditions under which work may be resumed.
8.23.Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be licensed and bonded in accordance with
the City's ordinances, regulations and requirements. Work by contractors and subcontractors is
subject to the same restrictions, limitations and conditions as if the work were performed by
Grantee. Grantee shall be responsible for all work performed by its contractors and
subcontractors and others performing work on its behalf as if the work were performed by it, and
shall ensure that all such work is performed in compliance with this Franchise and other
applicable law, and shall be jointly and severally liable for all damages and correcting all damage
caused by them. It is Grantee's responsibility to ensure that contractors, subcontractors or other
Persons performing work on Grantee's behalf are familiar with the requirements of this
Franchise and other applicable laws governing the work performed by them.
8.24.Construction Bond.
(A) Prior to commencing any construction work exceeding One Hundred
Thousand Dollars, Grantee shall provide a construction bond to ensure the faithful performance
of its responsibilities under this Franchise and applicable law, including, by way of example and
not limitation, its obligations to restore City Streets and other property. The amount of the
construction bond shall be twenty-five percent of the construction cost. The construction bond
shall be in a form and with a surety acceptable to the City's Risk Manager and City Attorney.
Grantee shall pay all premiums or costs associated with maintaining the construction bond, and
shall keep the same in full force and effect until the construction of the Open Video System shall
have been completed and all restoration of public and private property shall have occurred
regarding thereto. Thereafter, the construction bond shall be released, subject to the mutual
written agreement of the parties.
(B) The construction bond may be drawn upon by the City for any proper
purpose under this Franchise or as otherwise providedby applicable law.
(C)The City shall give Grantee written notice of any withdrawal under this
subsection upon such withdrawal. Within seven (7) days following receipt of such notice,
Grantee shall restore the construction bond to the amount required under this Franchise.
Grantee's maintenance of the construction bond shall not be construed to excuse unfaithful
performance by Grantee or to limit the liability of Grantee to the amount of the construction
bond or otherwise to limit the City's recourse to any other remedy available at law or equity.
(D) Grantee shall have the right to appeal to the City Council for
reimbursement in the event Grantee believes that the construction bond was drawn upon
improperly. Grantee shall also have the right of judicial appeal if Grantee believes the
construction bond has not been properly drawn upon in accordance with this Franchise. Any
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funds the City erroneously or wrongfullywithdraws from the construction bond shall be returned
to Grantee with interest, from the date of withdrawal at a rate equal to the prime rate of interest
as quoted in the Wall Street Journal.
SECTION 9.EMERGENCY ALERT SYSTEM AND TECHNICAL STANDARDS
9.1.Emergency Alert Capability
(A) If required by federal law or regulation, Grantee shall provide the City an
operating Emergency Alert System ("EAS") so that the City may use the Open Video System to
transmit an emergency alert signal.
(B) The Cityshall permit only appropriately trained and authorized persons to
operate the EAS equipment provided pursuant to this subsection.
(C)Grantee shall ensure that the EAS is functioning properly at all times.It
will test the EAS periodically, in a manner consistent with sound operational practices for
emergency systems. Grantee will advise the City of the testing schedule and the City may be
present for the tests.
9.2.Technical Performance
The technical performance of the Open Video System shall meet or exceed all applicable
federal (including, but not limited to, the FCC) and State technical standards, as they may be
amended from time to time, regardless of the transmission technology utilized. The City shall
have the full authority permitted by applicable law to enforce compliance with these techoical
standards.
SECTION 10.SERVICE TO CERTAIN LOCATIONS
If, as and when Grantee provides Cable Services, Grantee shall promptly notify the City
of that fact and the date it commenced providing Cable Services. This section shall apply
Grantee's Cable Services. Grantee shall, at no cost to the City or other entity, provide one outlet
of Basic Service and Expanded Basic Service to all City owned and occupied buildings, schools
and public libraries. For purposes ofthis subsection,"school"means all State-accredited K-12
public and private schools. In addition, Grantee shall provide, at no cost to the City or other
entity, one outlet of Basic and Expanded Basic Service to future owned or leased and occupied
City buildings, schools and libraries upon request if the drop line from the feeder cable to such
building does not exceed one hundred fifty feet (150')or if the City or other entity agrees to pay
the incremental cost of such drop line in excess of one hundred fifty feet (150'),including the
cost of such excess labor and materials.
Such obligation to provide free Cable Service shall not extend to areas of City buildings
where the Grantee would normally enter into a commercial contract to provide such Cable
Service (e.g.,golf courses). Outlets of Basic and Expanded Basic Service provided in
accordance with this subsection may be used to distribute Cable Services throughout such
buildings, provided such distribution can be accomplished without causing Open Video System
disruption and general techoical standards are maintained. Such outlets may only be used for
lawful purposes.
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SECTION 11.FRANCHISE VIOLATIONS
11.1.Procedure for Remedying Franchise Violations
(A)If the City believes that Granteehas failed to perform any obligation under
this Franchise or has failed to perform in a timely manner, the City shall notify Grantee in
writing, stating with reasonable specificity the nature of the alleged default. Grantee shall have
thirty (30) days from the receipt of such notice to:
(I)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
(3) notify the City that Grantee cannot cure the default within the
thirty (30) days, because of the nature of the default. In the event the default cannot be cured
within thirty (30) days, Grantee shall promptly take all reasonable steps to cure the default and
notify 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 default within the cure period stated
above, or by the projected completion date under subsection (A)(3), or denies the default and
requests a meeting in accordance with (A)(I),or the City orders a meeting in accordance with
subsection (A)(3), the City shall set a meeting to investigate said issues or 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.
(C)If, after the meeting, the City determines that a default exists, the City
shall order Grantee to correct or remedy the default or breach within fifteen (15) days or within
such other reasonable time period as the City shall determine.In the event Grantee does not cure
within such time frame to the City's reasonable satisfaction,the City may:
(I)Withdraw an amount from the irrevocable letter of credit or
performance bond as monetary damages;
(2) Recommend the revocation of this Franchise pursuant to the
procedures in subsection 12.2;or
(3) Recommend any other legal or equitable remedy available under
this Franchise or any applicable law.
(D) The determination as to whether a violation of this Franchise has occurred
shall be within the discretion of the City, provided that any such final determination may be
subject to appeal to the City Councilor review by a court of competent jurisdiction under
applicable law.
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11.2.Revocation
(A) In addition to revocation in accordance with other provisions of this
Franchise, the City may revoke this Franchise and rescind all rights and privileges associated
with this Franchise in the following circumstances, each of which represents a material breach of
this Franchise:
(1) If Grantee fails to perform any material obligation under this
Franchise or under any other agreement, ordinance or document regarding the City and Grantee;
(2) If Grantee attempts to evade any material provision of this
Franchise or to practice any fraudor deceit upon the City or Subscribers;
(3) If Grantee becomes insolvent, or if there is an assignment for the
benefit of Grantee's creditors; or
(4) If Grantee fails to comply with all provisions of federal law
pertaining to Open Video System Operators, including, but not necessarily limited to, 47 U.S.C.
573 and 47 CFR 76.1500 et seq.
(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 thirty (30) days from such notice to
object in writing and to state its reasons for such objection and provide any explanation. In the
event the City has not received a satisfactory response from Grantee, it may then seek a
termination of the Franchise bythe City Council in accordance with this subsection.
(C)Any proceedingunder the paragraph above shall be conducted by the City
Council and open to the public. Grantee shall be afforded at least forty-five (45) days prior
written notice of such proceeding.
(1) At such proceeding, Grantee shall be provided a fair opportunity
for full participation, including the right to be represented by legal counsel, to introduce
evidence, and to question witnesses. A complete verbatim record and transcript shall be made of
such proceeding and the cost shall be shared equally between the parties. The City Council shall
hear any Persons interested in the revocation, and shall allow Grantee, in particular, an
opportunity to state its position on the matter.
(2) Within ninety (90) days after the hearing, the City Council shall
determine whether to revoke the Franchise and declare that the Franchise is revoked and the
irrevocable letter of credit or performance bond forfeited; or if the breach at issue is capable of
being cured by Grantee, direct Grantee to take appropriateremedial action within the time and in
the manner and on the terms and conditions that the City Council determines are reasonable
under the circumstances. If the City Council determines that the Franchise is to be revoked, the
City Council shall set forth the reasons for such a decision and shall transmit a copy of the
decision to the Grantee. Grantee shall be bound by the City Council's decision to revoke the
Franchise unless it appeals the decision to a court of competent jurisdiction within fifteen (15)
days of the date of the decision.
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(3) Grantee shall be entitled to such relief as the court may deem
appropriate.
(4) The City Council may at its sole discretion take any lawful action
which it deems appropriate to enforce the City's rights under the Franchise in lieu of revocation
of the Franchise.
11.3.Procedures in the Event of Termination or Revocation
(A)If this Franchise expires without renewal or is otherwise lawfully
terminated or revoked, the City may order the removal of the above-ground Open Video System
facilities and such underground facilities from the City at Grantee's sole expense within a
reasonable period of time as determined by the City.In removing its plant, structures and
equipment, Grantee shall refill, at its own expense, any excavation that is made by it and shall
leave all Rights-of-Way,public places and private property in as good condition as that
prevailing prior to Grantee's removal of its equipment without affecting the electrical or
telephone wires or attachments. The indemnification and insurance provisions and the
irrevocable letter of credit or performance bond, as applicable, shall remain in full force and
effect during the period of removal, and Grantee shall not be entitled to, and agrees not to
request,compensation of any sort therefor.
(B)If Grantee fails to complete any removal required by this subsection 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 incurred within thirty (30) days after receipt of an
itemized list of the costs,or the City may recover the costs through the irrevocable letter of credit
or performance bond,as applicable, provided by Grantee.
11.4.Purchase of Open Video System
(A)If at any time this Franchise is lawfully revoked, terminated or not
renewed (in accordance with federal law), the City shall have the option to purchase the Cable
System.
(B)The City may, at any time after Franchise revocation, termination or non-
renewal, offer in writing to purchase Grantee's System. In any case where the City elects to
purchase the System, the purchase shall be closed within one hundred twenty (120) days of the
date of the City's audit of a balance sheet and current profit and loss statement of Grantee's
System. The City shall, as applicable, pay for the Cable System in cash or certified funds, and
Grantee shall deliver appropriate bills of sale and other instruments of conveyance.
(C)For the purposes of this subsection, the price for the System shall be
determined as follows:
(I)In the case of the expiration of the Franchise without renewal, at
fair market value determined on the basis of Grantee's System valued as a going concern, but
with no value allocated the Franchise itself. In order to obtain the fair market value, this
valuation shall be reduced by the amount of any lien, encumbrance, or other obligation of
Grantee that the City may assume.
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(2)
Cable System.
In the case of revocation for cause, the equitable price of Grantee's
11.5.Receivership and Foreclosure
(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
whether in receivership,reorganization,bankruptcy or other action or proceeding,unless:
(1) The receivership or trusteeship is timely vacated;or
(2) The receivers or trustees have timely and fully complied with all the terms
and provisions of this Franchise,and have remedied all defaults under the Franchise.
Additionally,the receivers or trustees shall have executed an agreement duly approved by
the court having jurisdiction,by which the receivers or trustee assume and agree to be
bound by each and every term,provision and limitation of this Franchise.
(B)If there is a foreclosure or other involuntary sale of the whole or any part of the
plant property and equipment of Grantee,the City may serve notice of recovation on Grantee and
to the purchaser at the sale, and the rights and privileges of Grantee under this Franchise shall be
revoked thirty (30) days after service of such notice, unless:
(1) The City has approved the transfer of the Franchise" in accordance with
the procedure set forth in this Franchise and as provided by law; and
(2)The purchaser has covenanted and agreed with the City to assume and be
bound by all the terms and conditions of this Franchise.
11.6.Alternative Remedies
No provision of this Franchise shall be deemed to bar the right of the City to seek or
obtain judicial relief from a violation of any provision of the Franchise or any rule,regulation,
requirement or directive promulgated thereunder.Neither the existence of other remedies
identified in this Franchise nor the exercise thereof shall be deemed to bar or otherwise limit the
right of the City to recover monetary damages for such violations by Grantee,or to seek and
obtain judicial enforcement of Grantee's obligations by means of specific performance,
injunctive relief or mandate,or any other remedy at law or in equity.
11.7.Assessment of Monetary Damages
The City and Grantee recognize the delays,expense and unique difficulties involved in
proving in a legal proceeding the actual loss suffered by the City as a result of Grantee's breach
of certain provisions of this Franchise.Accordingly,instead of requiring such proof, the City
and Grantee agree that Grantee shall pay to the City the sums set forth below for each day or part
thereof that Grantee shall be in breach of specific provisions of this Franchis.Such amounts are
agreed to by both parties as a reasonably estimate of the actual damages the City would suffer in
the event of Grantee's breach of such provisions of this Franchise.
Subject to the City's giving written notice to the Grantee and thirty (30) day right to cure
period, the City may assess against Grantee monetary damages up to two hundred fifty dollars
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($250) per day for material departure from the FCC teclmical performance standards; one
hundred dollars ($100) per day for failure to proved the Access Channels or any equipment
related thereto that is required hereunder; one hundred dollars ($100) per day for each material
violation of the Customer Service Standards; fifty ($50) per day for failure to proved reports or
notices as required by this Franchise; and up to one hundred dollars ($100)per day for any other
material breaches or defaults required under the Franchise.
SECTION 12.FRANCHISE TRANSFER
(A) This Franchise as an asset of the Open Video System shall not be sold,
assigned, transferred, leased or disposed of, either by involuntary sale or by voluntary sale,
merger or consolidation; nor shall title thereto, either legal or equitable, or any right, interest or
property therein pass to or vest in any Person or entity without the prior written consent of the
City, which consent shall be by the City Council, actingby ordinance.
(8)The Grantee shall promptly notify the City of any actual or proposed
change in, or transfer of, or acquisition by any other party of control of the Grantee. The word
"control" as used herein is not limited to majority stockholders but includes actual working
control in whatever manner exercised. Every change, transfer or acquisition of control of the
Grantee shall make this Franchise subject to cancellation unless and until the City shall have
consented in writing thereto.
(C)The parties to the sale or transfer shall make a written request to the City
for its approval of a sale or transfer and furnish all informationrequired by law and the City.
(D) The City shall act by ordinance on the request within one hundred twenty
(120) days of the request, provided it has received all requested information. Subject to the
foregoing,if the 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.
(E) Within thirty (30) days of any transfer or sale,if approved or deemed
granted by the City, Grantee shall file with the City a copy of the deed, agreement, lease or other
written instrument evidencing such sale or transfer of ownership or control, certified and sworn
to as correct by Grantee and the transferee, and the transferee shall file its written acceptance
agreeing to be bound by all of the provisions of this Franchise, subject to applicable law.
(F) In reviewing a request for sale or transfer, the City may inquire into the
qualifications of the prospective controlling party or transferee, and Grantee shall assist the City
in so inquiring. The City may condition said sale or transferupon such terms and conditions as it
deems reasonably appropriate, provided, however, any such terms and conditions so attached
shall be related to the qualifications of the prospective controlling party or transferee and to the
resolution of outstanding and unresolved issues of noncompliance with the terms and conditions
of this Franchise by Grantee. Additionally, the prospective transferee or assignee must have
been certified by the FCC to operate as an Open Video System Operator in the City.
(G) Notwithstanding anything to the contrary in this subsection, the prior
approval of the City shall not be required for any sale, assignment or transfer of the Franchise or
Open Video System to an entity controlling, controlledby or under the same common control as
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Grantee. The proposed assignee or transferee must agree in writing to comply with all of the
provisions of the Franchise. Further, Grantee may pledge the assets of the Open Video 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.
SECTION 13.SEVERABILITY
If any Section, subsection, paragraph or provision of this Franchise is determined to be
illegal, invalid or unconstitutional by any court or agency of competent jurisdiction,such
determination shall have no effect on the validity of any other Section, subsection, paragraph or
provision of this Franchise, all of which will remain in full force and effect for the term of the
Franchise.
SECTION 14.MISCELLANEOUS PROVISIONS
14.1. Notices
Throughout the term of the Franchise, each party shall maintain and file with the other a
local address for the service of notices by mail. All notices shall be sent postage prepaid to such
respective address and such notices shall be effective upon the date of mailing. The City or the
Grantee may change these addresses by written notice at any time. At the Effective Date of this
Franchise:
Grantee's address shall be:
Black Rock Cable, Inc.
1512 Fairview St.
Bellingham, WA 98229
The City's address shall be:
City of MarysviIle
Mary Swenson
1049 State Ave.
Marysville, WA 98270
With a copy to:
City of Marysville
Grant Weed
1049 State Ave.
Marysville, WA 98270
14.2.Descriptive Headings
The headings and titles of the Sections and subsections of this Franchise are for reference
purposes only, and shall not affect the meaning or interpretation of the text herein.
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14.3.Costs and Expenses to be Borne by Grantee
The costs and expenses associated with the renewal of this franchise will be borne by the
Grantee. Franchise renewal-related costs and expenses and all costs and expenses of publication
of this Franchise and any Ordinance related hereto.
14.4.Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted successors and
assigns.
14.5.Authority to Amend
This Franchise may be amended at any time by written agreement between the parties.
14.6. No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent relationship
between the parties, and neither party is authorized to, nor shall either party act toward third
Persons or the public in any manner thatwould indicate any such relationship with the other.
.14.7.Waiver
The failure of the City at any time to require performance by the 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
succeeding breach of such provision, or as a waiver of the provision itself or any other provision.
14.8.Venue
Venue for any judicial proceeding regarding this Franchise shall be In Snohomish
County.
14.9.Governing Law
Applicable local, State and federal law (including, but not limited to, the Cable Act and
all rules, regulations, rulemakings andorders ofthe FCC) shall govern this Franchise.
14.10.Entire Agreement
This Franchise represents the entire understanding and agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior oral or written
negotiations between the parties.
14.11.Acceptance
After the passage and approval of this Ordinance and within thirty (30) days after such
approval, this Franchise shall be accepted by Grantee by filing with the City Clerk an
unconditional, acknowledged written acceptance of all terms and conditions of this Franchise.
Failure of Grantee to file such an acceptance within thirty days of approval shall be deemed a
rejection by Grantee, and the rights and privileges herein granted shall cease after expiration of
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the thirty day period after approval, unless the thirty day period is extended by ordinance duly
passed for that purpose.
Dennis Kendall,Mayor
ATTEST:
APPROVED AS TO FORM:
Grant Weed, City Attorney
Accepted and approved this 11-day of &(,2006.
ATI~
Secretary
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Black Rock:.Q;lI~