HomeMy WebLinkAboutO-2657 - Grants Cable Television FranchiseCITY OF MARYSVILLE
Marysville,Washington
ORDINANCE NO.2,,57
AN ORDINANCE OF THE CITY OF MARYSVILLE GRANTING
A FRANCHISE TO WAVEDIVISION I, LLC TO OPERATE A
CABLE TELEVISION SYSTEM IN CITY RIGHTS-OF-WAY.
This Cable Television Franchise ("Franchise") is entered into in Marysville, Washington,
this '2+1\1 day of :r,'-'1 '2006, by and between the City of Marys..~l1e,Washington a municipal
corporation, (hereinafter "City") and WaveDivision I, LLC (hereinafter "Grantee"). City and
Grantee are sometimes referred to hereinafter collectively as the "parties."
WHEREAS,Grantee has applied to the City for a nonexclusive franchise to construct,
maintain, operate, replace and repair a Cable 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
Cable System are adequate, in a full public proceeding affording due process to all concerned; and
WHEREAS,the public has had adequate notice and opportunity to comment on Grantee's
proposal to provide cable television service within the Franchise Area;.and
WHEREAS, the City has a legitimate and necessary regailatory role in ensuring the
availability of state-of-the-art cable communications service, the high technical capability and
reliability of cable systems, the availability of local programming (including educational and
governmental access programming) and quality customer service; and
WHEREAS,diversity in cable service and local and non-local programming is an important
policy goal and the Grantee's Cable System should offer a broad rarage of programming services;
and
WHEREAS,flexibility to respond to changes in technology and subscriber interests within
the cable service market should be an essential characteristic ofthis F.ranchise and the Grantee will
take advantage of new technology to benefit subscribers and citizens; as such technology becomes
available; and
WHEREAS,the City is authorized by applicable law to gremt one or more nonexclusive
franchises to construct, operate and maintain a cable system or systerrss within the boundaries ofthe
City.
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NOW,THEREFORE,THE CITY COUNCIL OF THE CITY OF MARYSVILLE,
WASHINGTON DO ORDAIN AS FOLLOWS:
SECTION 1.DEFINITIONS
For the purposes of this Franchise 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 ordinarymeaning. The word "shall"
is alwaysmandatory and not merely directory.
1.1 "Access"means the availability for noncommercial use by various governmental and
educational agencies, institutions, organizations, and other groups and individuals in the
community, including the City and its designees,of particular channels on the Cable System to
receive and distribute progranuning to Subscribers,as permitted under applicable law.
(A) "Educational Access" means Access where Schools are the primary users having
editorial control over progranuning and services.
(B)"Government Access" means Access where governmental institutions or their
designees are the primaryusers havingeditorial control over progranuning and services.
1.2 "Access Channel"means any channel, or portion thereof, designated for Access purposes
or otherwise made available to facilitateor transmitAccess programming.
1.3 "Activation"or "Activated"means the status of any capacity on or part of the Cable
System wherein the use of that capacity or part thereof may be made available without further
installation of system equipment other than Subscriber premise equipment, whether hardware or
software.
1.4 "Affiliate"when used in connectionwith Grantee means any Person who owns or controls,
is owned or controlled by, or is under common ownership or controlwith, Grantee.
1.5 "Bad Debt"means amounts lawfully owed by a Subscriber and accrued as revenues on the
books ofGrantee, but not collected afterreasonableefforts by Grantee.
1.6 "Basic Service"means the Cable Service tier which includes, at a minimum, the
retransmission oflocal television broadcastsignals and Access progranuning.
1.7 "Broadcast Signal"means a television or radio signal transmitted over the air to a wide
geographic audience, and received by an antenna,microwave, satellite dishes or any other means.
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1.8 "Cable Act" means the Cable Communications Policy Act of 1984, as amended by the
Cable Television Consumer Protection and Competition Act of 1992,3FIId the Telecommunications
Act of 1996,and any future amendments thereto.
1.9 "Cable Internet Service"means any service offered by Grantee whereby Persons receive
access to the Intemet through the Cable System.
1.10 "Cable Operator"means any Person or groups of Persons,including Grantee, who
provides Cable Service over the Cable System and directly or through oae or more Affiliates owns
a significant interest in such Cable System or who otherwise oontrol(s)or is(are) responsible for,
through any arrangement, the management and operation ofsuch a CableSystem.
1.11 "Cable Service"means the one-way transmission to Subscribers of Video Programming,
or other programming service and Subscriber interaction,ifany,which is required for the selection
or use ofsuch Video Programming or other programming service.
1.12 "Channel"means a portion of the frequency band capable of carrying a Video
Programming Service, an audio service or a combination of Video l!"JFogramming Services and
audio services, whether delivered in an analog or digital format,on a twenty-four (24) hour per day
basis or a portion thereof.
1.13 "City"means the City ofMarysville,Washington,a municipal cerporation.
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.
1.15 "Designated Access Provider"means the entity or entities <designated by the City to
manage or co-manage Access Channels and facilities. The City may be a Designated Access
Provider.
1.16 "Downstream"means carrying a transmission from the Headead to remote points on the
System or to interconnection points on the System.
1.17 "Dwelling Unit"means any residential building,Of"each portion thereof that has
independent living facilities, including provisions for cooking,sanitatien and sleeping and that is
designed for residential occupancy.
1.18 "Expanded Basic Service"means cable programming services not included in the Basic
Service and excluding, for example, premium or pay-per-view services,
1.19 "FCC"means the Federal Communications Commission or its lI:awful successor.
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1.20 "Fiber Optic"means a transmission medium of optical fiber cable, along with all
associated electronics and equipment capable of carrying Cable Service by means of electric light
wave impulses.
1.21 "Franchise"means the document in which this definition appears, which is executed
between the City and Grantee, containing the specific provisions of the authorization granted and
the contractual agreement created hereby.
1.22 "Franchise Area"means the depicted area on Exhibit A (the "Initial Area"), including any
areas immediately adjacent to the InitialArea annexed by the Cityduring the term ofthis Franchise.
1.23 "Gross Revenues"means anyand all revenue derived directly or indirectly by the Grantee,
.or by Grantee's Affiliates, from the operation ofGrantee's Cable System to provide Cable Services
in the Franchise Area. Gross Revenues include, by way of illustration and not limitation, monthly
fees charged Subscribers for Cable Services including Basic Service, any expanded tiers of Cable
Service, other tiers ofCable Service, Premium Services; Cable Service installation, disconnection,
reconnection and change-in-service fees, Leased Access Channel fees, Cable Service lease
payments to the Cable System, late fees and administrative fees; payments or other consideration
receivedby the Grantee from programmers for carriage of Cable Services on the Cable System and
accounted for as revenue under GAAP; revenues from rentals of converters or other Cable System
equipment, advertising sales revenues; the fair market value of consideration received by the
Grantee for use of the Cable System to provide Cable Service and accounted for as revenue under
GAAP; rvenues from program guides, revenue from Cable Internet Service to the extent that
service is considered a Cable Service under federal or State law, additional outlet fees, Franchise
Fees, revenue from interactive services to the extent they are considered Cable Services under
federal or State law, revenue from the sale or carriage ofother Cable Services, and revenues from
home shopping. Gross Revenues shall not include (i) Bad Debt, provided, however, 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; (ii) the capital advances and Capital Contribution referenced in
Sections 9.6 and 9.7; or (iii) any taxes on services furnished by the Grantee which are imposed
directly on any Subscriber or user by the State, City or other governmental unit and which are
collected by the Grantee on behalf of said governmental unit. The Franchise Fees are not such a
tax, and are therefore included in GrossRevenues.
1.24 "Headend"means any facility for signal reception and dissemination on the System,
including cables, antennas, wires, satellite dishes, monitors, switchers, modulators, processors and
other related equipment.
1.25 "Interconnect"or "Interconnection"means the linking of the System with another
contiguous cable system, including technical, engineering, physical, financial and other necessary
components to accomplish, complete and adequately maintain such linking, in a manner to permit
the transmission and receiving of Access programming between the System and other cable
systems.
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1.26 "Leased Access Channel"means any Channel or portion of a Channel commercially
available forprogramming in accordancewith Section 612 ofthe CableAct.
1.27 "Noncommercial"means, in the context ofAccess Channels, that particular products and
services are not promoted or sold. This shall not be interpreted to prohibit an Access Channel
operator or programmer from soliciting and receiving financial support (i.e., fundraising) to
produce and transmit programmingon an Access Channel, or from acknowledging a contribution.
1.28 "Pay-Per-View Service"or "Premium Service"means Video Programming or other
progranuning service choices (such as movie channels) offered to Subscribers on a per-channel,
per-program or per-event basis.
1.29 "Person"means any individual,sole proprietorship, partnership,joint venture, association,
corporation or limited liabilityentity,or anyother form ofentityor organization.
1.30 "Right-of-Way"or "Rights-of-Way"means land acquired or dedicated to the public or
hereafter dedicated to the public for public streets or roads, highways, avenues, lanes, alleys,
bridges, sidewalks, easements andothersimilar public property locatedwithin the Franchise Area.
1.31 "School"means any state accredited public educational institution including, for example,
primary and secondaryschools (K.-12).
1.32 "State"means the State ofWashington.
1.33 "Subscriber"means any Personwho lawfully receives Cable Service provided by Grantee
by means ofthe System with Grantee'sexpress permission.
1.34 "System"or "Cable System"means a facility, 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 (1) a facility that serves only to retransmit the
television signals ofone or more televisionbroadcast stations; (2) a facility that serves Subscribers
without using any public Right-of-Way;(3) a facility of a common carrier which is subject, in
whole or in part, to the provisions ofTitle II ofthe federal Communications Act (47 U.S.C. 201 et
seq.), except that such facility shall be considered a cable system (other than for purposes of 47
U.S.C. 541(c)) to the extent such facilityis used in the transmission ofvideo programming directly
to Subscribers, unless the extent ofsuchuse is solely to provide interactive on-demand services; (4)
an open video system that complieswith47 U.S.C. 573 and federal regulations; or (5) any facilities
of any electric utility used solely for operating its electric utility systems. When used herein,
System or Cable System refers to Grantee'sCable System in the Franchise Area.
1.35 "Telecommunications"means the transmission, between or among points specified by the
user,ofinformation ofthe user'schoosing,without change in the formor content ofthe information
as sent and received (as provided in 47 U.S.C. 153(43)).
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1-36 "Telecommunications Service"means the offering of Telecommunications for a fee
directly to the public,or to such classes ofusers as to be effectively available directly to the public,
regardless ofthe facilities used (as provided in 47 U.S.C.153(46».
1.37 "Tier"means a category of Cable Services provided by the Grantee for which a separate
periodic rate is charged.
1. 39 "Upstream"means carrying a transmission to the headend from remote points on the
System or from Interconnection points on the System.
1-40 "Video Programming"means programming provided by, or generally considered
comparable to progranuning provided by, a television broadcast station.
SECTION 2.GRANT OFFRANCmSE
2.1 Grant
(A)The City hereby grants to Grantee a nonexclusive and revocable authorization to
make reasonable and lawful use of the Rights-of-Way within the Franchise Area to construct,
operate,maintain,reconstruct and upgrade a System for the purpose of providing Cable Services,
subject to the terms and conditions set forth in this Franchise.This Franchise shall constitute both a
right and an obligation to provide the Cable Services required by, and to fulfill the obligations set
forth in, the provisions ofthis Franchise.
(B)Grantee,through this Franchise, is granted the right to operate its System using the
Rights-of-Way within the Franchise Area in compliance with all lawfully enacted City Codes and
procedures.In the event ofa conflict between the City Code and this Franchise,the Franchise shall
control.Additionally,nothing in this Franchise shall be deemed to waive the requirements of
ordinances of general applicability lawfully enacted, or hereafter lawfully enacted,by the City.
Grantee reserves the right to challenge provisions of any ordinance or other enactment of the City
that conflicts with its contractual rights hereunder.
(C)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,
should Grantee provide service other than Cable Service.
(D)Grantee promises and guarantees,as a condition ofexercising the privileges granted
by this Franchise,that any Affiliate of the Grantee offering Cable Service in the Franchise Area, or
directly involved in the management or operation of the System in the Franchise Area, will also
comply with the terms and conditions ofthis Franchise.
(E)No rights shall pass to Grantee by implication.Without limiting the foregoing, by
way ofexample and not limitation, this Franchise shall not include or be a substitute for:
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(I)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
ofthe City;
(2) Any permit, agreement or authorization required by the City for Rights-of-
Way users in connection with operations on or in Rights-of-Way or public property
including, by wayofexample and not limitation, street cutpermits; or
(3) Any permits or agreements for occupying any other property ofthe 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-Ways in which the City has an actual interest. It is not a warranty of title or interest in
any Rights-of-Way; it does not provide the Grantee with any interest in any particular location
within the Rights-of-Way; and it does not confer rights other than as expressly provided in the grant
hereof.
(G) This Franchise expressly authorizes Grantee to provide only Cable Services, and to
construct,operate or maintain Cable Service facilities. This Franchise is not a bar to imposition of
any lawful conditions on Grantee with respect to non-Cable services,Telecommunications Services
or information services, 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 non-Cable services, Telecommunications Services or information services
or relieve Grantee of its obligation to comply with any such authorization(s) that may be lawfully
required. However, this Franchise shall not be read as a concession by Grantee that it needs
authorization to providenon-Cable,Telecommunications or information services.
2.2 Use ofRights-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 Rights-of-
Way within the FranchiseArea, such wires, cables (both coaxial and fiber optic), conductors, ducts,
conduit, vaults, manholes, amplifiers, pedestals, attachments and other property and equipment as
are necessary and appurtenant to the operation of the System for the provision of Cable Services
within the Franchise Area.
(B)Grantee must follow City-established requirements for placement of System
facilities in the Rights-of-Way, and must install System facilities in a manner that minimizes
interference with the use of the Right-of-Way by others, including others that may be installing
communications facilities. Within parameters reasonably related to the City's role in protecting the
public health, safety and welfare, the City may require that 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 the City's requirements;
and, subject to giving Grantee prior written notice and an opportunity to take the requisite
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corrective action,may remove, or require removal of, any facilityithat is not installed in compliance
with the requirements established by the City,or which is installed without prior City approval and
charge Grantee for all of 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.
2.3 Duration
The term of this Franchise and all rights, privileges,obligations and restrictions pertaining thereto
shall be eight (8) years from the effective date of this Franchise,unless terminated,reduced or
extended as hereinafter provided.
2.4 Effective Date
(A)This Franchise and the rights, privileges, and authority granted hereunder and the
contractual relationship established hereby shall take effect and be in force from and after the
effective date ofthis Franchise.
(B)The effective date of this Franchise shall be the date on which it is accepted in
writing by Grantee.
2.5 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 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
tJ:!!;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.
2.6 Grant ofOther Franchises
In the event the City enters into a franchise, permit, license,authorization or other agreement ofany
kind with any other Person or entity other than the Grantee to use the Rights-of-Way for the
purpose of constructing or operating a System or providing Cable Service to any part of the
Franchise Area in which the Grantee is providing Cable Service under the terms and conditions of
this Franchise or is required to extend Cable Service to under the provisions of this Franchise, the
terms and conditions thereof, taken as a whole, shall be neither more favorable nor less burdensome
to such Person than those contained herein in order that one cable operator not be granted an unfair
competitive advantage over another.
2.7 Familiarity with Franchise
Grantee acknowledges and warrants by acceptance ofthe 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 ofthe meaning ofthe 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.
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2.8 Effect ofAcceptance
By accepting the Franchise, the Grantee: (1) 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.
2.9 Police Powers
Grantee's rights hereunder are subject to the police powers of the City to adopt and enforce
ordinances necessary for the safety, health and welfare ofthe public, and Grantee agrees to comply
with all such applicable laws, ordinances and regulations lawfully enacted pursuant to the police
powers of the City, or hereafter enacted in accordance therewith, by the City. Any conflict between
the provisions of this Franchise and any other present or future lawful exercise ofthe City's police
powers shall be resolved in favor of the latter, provided that such ordinances shall be reasonable
and not destructive of the rights' granted in this Franchise. Grantee shall pay those costs (in
accordance with applicable law) associated with moving its System within the Right-of-Way as a
result ofthe City's lawful exercise ofits police powers.
SECTION 3.FRANCHISE FEES AND FINANCIAL CONTROLS
3.1 Franchise Fees
As compensation for the use ofthe Rights-of-Way, Grantee shall payas a Franchise Fee to the City,
throughout the duration ofthis Franchise, an amount equal to five percent (5%)of Grantee's Gross
Revenues. Accrual of such Franchise Fees shall commence as of the effective date of this
Franchise.
3.2 Payments
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 ofthe preceding
quarter.
3.3 Acceptance of Payment
No acceptance ofany payment shall be construed as an accord by the City that the amount paid is,
in fact, the correct amount, nor shall any acceptance ofpayments be construed as a release of any
claim the City may have for further or additional sums payable or for the performance ofany other
obligation of Grantee. However, the period for recovery of franchise fees payable hereunder is
limited to six (6) years from the date on which payment by the Grantee was due.
3.4 Franchise Fee Reports
Each payment shall be accompaniedby a written report to the City on a form approved by 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.
3.5 Audits
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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 enforcement of this
Franchise and to recompute any amounts determined to be payable under this Franchise.IfGrantee
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 not be any greater than the previous six
(6) years.Any additional amounts due to the City as a result ofthe audit shall be paid within forty-
five (45)days following written notice to the Grantee by the City,which notice shall include a copy
of the audit findings.If the audit shows that Franchise Fees have been underpaid,by five percent
(5%) in a calendar year or more,Grantee shall pay the cost ofthe audit up to ten thousand dollars
($10,000)for each year of the audit period.Grantee's obligation to retain records related to a
franchise fee audit shall expire six (6) years after each Franchise Fee payment has been made, or
should have been made,to the City.
3.6 Financial Records
Grantee agrees to meet with a representative of the City upon request to review Grantee's
methodologyofrecord-keeping,financial reporting,the computing ofFranchise Fee obligations and
other procedures,the understanding of which the City deems necessary for reviewing reports and
records that are relevant to the enforcement ofthis Franchise.
3.7 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 established for judgments by the Snohomish County Superior Court,
-.until the date the Cityreceives the payment.
3.8 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 established for judgments by the Snohomish County
Superior Court,compounded daily,calculated from the date the underpayment was originally due
until the date the City receives the payment.
3.9 Maximum Franchise Fees
The parties acknowledge that, at present,applicable federal law limits the City to collection of a
Franchise Fee of five percent (5%)of Gross Revenues in a 12-month period.In the event that at
any time throughout the term ofthis Franchise,the City is authorized to collect an amount in excess
of five percent (5%)of Gross Revenues and the City elects to do so, then this Franchise shall be
amended by the parties consistent with such change to provide that such excess amount shall be
added to the franchise fee payments to be paid by Grantee to the City hereunder.Conversely,in the
event that at any time throughout the term ofthis Franchise,the City may only collect an amount
which is less than five percent (5%)ofGross 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.
3.10 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 ofFranchise Fee payments and additional commitments set
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forth elsewhere in this Franchise may total more than five percent (5%)of Grantee's Gross
Revenues in any l2-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, nor do they represent an increase in Franchise Fees to be passed through to Subscribers.
3.11 Alternative Compensation
In the event the obligation of Grantee to compensate the City through Franchise Fee payments is
lawfully suspended or eliminated, in whole or part, then Grantee shall pay to the City compensation
equivalent to the compensation paid to the City by other similarly situated users ofthe Rights-of-
Way for Grantee's use of the Rights-of-Way,provided that in no event shall such payments exceed
the equivalent of five percent (5%)of Grantee's Gross Revenues (subject to the other provisions
contained in this Franchise).
3.12 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,certified by an independent
certified public accountant,showing the Gross Revenues received by the Grantee since the end of
the previous fiscal year.Within thirty (30) days ofthe filing ofthe certified statement with the City,
Grantee shall pay any unpaid amounts as indicated.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 available in a surety bond,ifany, or other security provided by the Grantee.
3.13 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 ofthe 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 ofany 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. Any other license fees, taxes or
charges shall be of general applicability in nature and shall not be levied against Grantee solely
because of its status as a Cable Operator, or against Subscribers, solely because oftheir status as
such.
SECTION 4.ADMINISTRATION AND REGULATION
4.1 Authority
The City shall be vested with the power and right to administer and enforce the requirements ofthis
Franchise and the regulations and requirements ofapplicable law,including the Cable Acts, or to
delegate that power and right, or any part thereof, to the extent permitted under law, to any agent in
the sole discretion ofthe City.
Nothing in this Franchise shall expand or limit the City's right ofeminent domain under State law.
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
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City acknowledge that their rights and obligations under this Franchise are explicitly subject to all
such changes,
4,2 Charges
All of Grantee's rates and charges related to or regarding Cable Services shall be subject to
regulation by the City to the full extent authorized by applicable federal,State and local laws.
4.3 Cross Subsidization
Grantee shall comply with all applicable laws regarding rates for Cable Services and all applicable
laws covering issues ofcross subsidization.
4,4 No Rate Discrimination
All ofGrantee's rates and charges shall be published (in the form of a publicly-available rate card),
and shall be nondiscriminatory for all Persons ofsimilar classes,under similar circumstances and
conditions.Grantee shall permit Subscribers to make any in-residence connections the Subscriber
chooses without additional charge and without penalizing the Subscriber therefor.However,ifany
in-home connection requires service from Grantee due to poor signal quality, signal leakage or
other factors, caused by improper iristallation ofsuch in-home wiring or faulty materials ofsuch in-
home wiring, the Subscriber may be charged appropriate service charges by Grantee.Nothing
herein shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction with valid
promotional campaigns;
(B) The offering ofreasonable discounts to similarlysituated Persons;
(C)The offering of rate discounts for Cable Service to government agencies or
educational institutions;or
(D) The offering ofbulk discounts for Multiple Dwelling Units.
The Grantee shall offer a discount to those individuals who are low income (determine
according to City guidelines consistently applied to other City discounts)and who are also either
permanently disabled or 62 years of age or older and who are the legal owner and resident ofthe
dwelling unit. Such discounts will consist of at least thirty percent (30%)off of Basic Service
(whether it is Basic Service only or combined with Expanded Basic Service or with a premium
service), and Grantee is also encouraged to waive standard installation charges.
4.5 Rates
Upon request,Grantee shall provide a complete schedule of current rates and charges for any and
all Leased Access Channels,or portions ofsuch Channels,provided by Grantee. The schedule shall
include a description of the price,terms and conditions established by Grantee for Leased Access
Channels.
4,6 Late Fees
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(A) For purposes ofthis subsection, any assessment,charge,cost, fee or sum, however
characterized, that the Grantee imposes upon a Subscriber solely for late payment of a bill is a late
fee and shall be applied in accordancewith applicablelocal, state and federal laws.
(B) The Grantee's late fee and disconnection policies and practices shall be
nondiscriminatory, and such policies and practices, and any fees imposed pursuant to this
subsection, shall applyequally in all parts ofthe Franchise Area without regard to the neighborhood
or income level ofthe Subscribers.
4.7 Reserved Authority
The City reserves all rights and authority arising from the Cable Act and any other relevant
provisions offederal, state or local laws.
.4.8 Time Limits Strictly Construed
Whenever this Franchise sets forth a time for any act to be performed by Grantee or the City, such
time shall be deemed to be ofthe essence, and any failure ofGrantee to perform within the allotted
time maybe considered a material breach ofthis Franchise.
4.9 Performance Evaluations
(A) Evaluation sessions may be held upon request by the City, but no more frequently
than once a year, throughout the term ofthis Franchise.
(B) All evaluation sessions shall be open to the public and shall be announced by the
City at least two (2) weeks in advance, in a newspaper ofgeneral circulation in the City.
(C)Topics of discussion at any evaluation session may include, but are not limited to,
Cable Service rates; Franchise Fees; liquidated damages; free or discounted Cable Services;
application of new technologies; system performance; Cable Services provided; programming
offered; customer complaints; privacy; amendments to this Franchise; judicial and FCC rulings;
line extension policies; and the City's or Grantee's rules; provided that nothing in this subsection
shall be construed as requiringthe renegotiation ofthis Franchise.
(D) During evaluations under this Franchise, Grantee shall fully cooperate with the City
and shall provide such information and documents as the City may reasonably require to perform
the evaluation.
SECTION 5.INDEMNIFICATION 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,
damage, loss, liability, cost or expense, including court and appeal costs and attorneys' fees and
expenses, arising from any death, or injury, casualtyor accident to a Person, equipment or property
or arising out of or by reason of, the presence of or any construction, excavation, operation,
maintenance, repair, reconstruction,upgrade, rebuild,upkeep or removal ofthe Cable System,by or
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for Grantee, its agents or its employees, or by reason of any neglect or omission of Grantee, its
agents or its employees. Grantee shall consult and cooperate with the City while conducting its
defense ofthe City.
(B)Procedures and Defense. The City shall give the Grantee timely written notice of
anyclaim or ofthe commencement ofany action, suitor other proceedingcovered by the indemnity
in this Section. If a claim or action arises, the City or anyother 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 ofa claim and, in any event, Grantee may not agree to any settlement of
claims financially affecting the City without the City'sprior written approval, which approval shall
not be unreasonablywithheld.
(C)Grantee's Duties. 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 duties ofdefense and indemnification under this Section.
(0)Expenses. If separate representation to fully protect the interests ofboth parties is
necessary, such as a conflict of interest between the City and the counsel selected by Grantee to
represent the City, Granteeshall pay expenses incurred by the Cityin defending itselfwith regard to
any action,suit or proceedingindenmified by Grantee. The City'sexpenses shall include all out-of-
pocket expenses, such as consultants' fees, and shall also include the reasonable value of any
services rendered by the City Attorney or hislher assistants or any employees of the City or its
agents but shall not include outside attorneys' fees forservicesthat are unnecessarily duplicative of
servicesprovided the City by Grantee.
5.2 Insurance Requirements
(A) General Requirement. Grantee must have adequateinsurance 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 which in any way relate to, arise from or are connected with this Franchise,
or involve Grantee, its agents,representatives, contractors,subcontractorsand theiremployees.
(B) Minimum Insurance Limits. Grantee must keep insurance in effect in accordance
with theminimum insurancelimits herein set forth:
(I)Commercial General Liability: Two million dollars ($2,000,000) aggregate
limit per occurrence forbodily injury, personal injuryand propertydamage;
(2) Automobile Liability: Two ntillion dollars ($2,000,000) combined single
limit per accident forbodilyinjury and propertydamage;and
(3) Employer'sLiability: One milliondollars ($1,000,000).
(4) Excess Liabilityor Umbrella Coverage:Five million dollars ($5,000,000).
(C)Endorsements.
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(I)All policies shall contain,or shall be endorsed so that:
(a) The City shall be designated as an additional insured;
(b)·The 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) The policy shall contain a severability of interests provision.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 ofthe insurer's liability.
(2)The insurance provided herein shall not be cancelled or the limits reduced
so as to be out of compliance with the requirements ofthis Section without forty-five (45)
days'written notice first being given to the City. If the insurance is cancelled Grantee shall
provide a replacement policy.Grantee agrees to maintain continuous uninterrupted
insurance coverage,in the amounts required,for the duration ofthis Franchise.
(D)Acceptability of Insurers.The insurance obtained by Grantee shall be placed with
insurers with a Best's rating ofno less than "A VII".
(E)Verification of Coverage.The Grantee shall furnish the City with a certificate or
certificates of insurance.The certificate for each insurance policy is to be signed by a person
authorized by that insurer to bind coverage on its behalf.The certificate for each insurance policy
must be on standard forms or on such forms as are consistent with standard industry practices,and
are to be provided to the City upon acceptance ofthis Franchise. The Grantee hereby warrants that
its insurance policies satisfy the requirements ofthis Franchise.
5.3 Surety Bond
(A)If there is an uncured breach by Grantee ofa material provision ofthis Franchise or
a pattern ofrepeated violations ofany provision(s)ofthis Franchise,then the City may request and
Grantee shall establish and provide to the City,as security for the faithful performance by Grantee
ofall ofthe provisions ofthis Franchise, a surety bond from a financial institution satisfactory to the
City in the amount often thousand dollars ($10,000).
(B)Ifa surety bond is required pursuant to subsection (A), the surety bond shall then be
maintained at that same amount throughout the remainder ofthe term ofthis Franchise.
(C)After the giving of notice to Grantee and expiration of any applicable cure period,
the surety bond may be drawn upon by the City for purposes including,but not limited to, the
following:
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(1)
Franchise;
Failure of Grantee to pay the City sums due under the terms of this
(2) Reimbursement ofcosts borne by the City to correct Franchise violations not
corrected by Grantee;
(3)
Franchise.
Monetary remedies or damages assessed against Grantee as provided in this
(D) The City shall give Grantee written notice ofits intent to withdraw from the surety
bond pursuant to this subsection.Within thirty (30)days following notice that such withdrawal has
occurred, Grantee shall restore the surety bond to the full amount required by subsection (A).
Grantee's maintenance of the surety bond shall not be construed to excuse unfaithful performance
by Grantee or limit the liability of Grantee to the amount ofthe surety bond or otherwise limit the
City's recourse to any other remedy available at law or in equity.
(E) Grantee shall have the right to appeal to the City Council for reimbursement in the
event Grantee believes that the surety bond was drawn upon improperly. Grantee shall also have
the right ofjudicial appeal ifGrantee believes the surety bond has not been properly drawn upon in
accordance with this Franchise. Any funds the City erroneously or wrongfully withdraws from the
surety bond shall be returned to Grantee with interest,from the date of withdrawal at the rate
established for judgments by the Snohomish County Superior Court.
5.4 Bonds
(A) Grantee shall comply with the bonding requirements provided for in the Marysville
Municipal Code. Grantee may be required to obtain other additional bonds in accordance with the
City's ordinary practices.
(B) Grantee's maintenance of the bond(s) shall not be construed to excuse unfaithful
performance by Grantee or limit the liability ofGrantee to the amount ofthe bond(s) or otherwise
limit the City's recourse to any other remedy available at lawor in equity.
SECTION 6.CUSTOMER SERVICE
6.1 Customer Service Standards
Grantee shall comply with Customer Service Standards as the same may be adopted and amended
from time to time by the City Council.Grantee reserves the right to challenge any customer service
standards which it believes are inconsistent with its contractual rights granted under this Franchise.
6.2 Subscriber Privacy
Grantee will comply with privacy rights ofSubscribers in accordance with federal, State and local
laws.
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SECTION 7.REPORTS AND RECORDS
7.1 Open Records
The City shall have access to, and the right to inspect, any books and records of Grantee and its
Affiliates which are necessary for the enforcement of the provisions 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 ofany Affiliate or a third Person. The Citymay, 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 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.If the requested books and
records are too voluminous, or for security reasons cannot be copied or removed, then Grantee may
request that the City inspect them at Grantee's local office.Ifany books or records ofGrantee are
not kept in a local office and not made available in copies to the City upon written request as set
forth above, and if the City determines that an examination of such records is necessary for the
enforcement of this Franchise, then all reasonable travel expenses incurred in making such
examination shall be paid by Grantee.
7.2 Confidentiality
The City agrees to keep confidential any proprietary or confidential books or records ofGrantee to
the extent permitted by law. 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.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 Person demanding access to
such information within a reasonable time.
73 Records Required
Grantee shall provide to the City,upon request:
(A) A complete set of route maps showing the location ofCable System facilities in the
Franchise Area;
(B)A copy of all FCC filings issued by Grantee or its Affiliates which relate to the
operation ofthe System in the Franchise Area;
(C)A list ofGrantee's Cable Services, rates and Channel line-up; arid
(D) A compilation of Subscriber complaints, actions taken and resolution, and a log of
service calls.
Grantee shall make available, at Grantee's local office, for inspection, plans and as-built maps ofthe
Cable System.
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7.4 Submittal of Documents
Upon written request,Grantee shall submit to the City copies of any applications, notifications,
communications and documents ofany 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 ofGrantee's System within the Franchise Area.Grantee shall submit such
documents to the City no later than forty-five (45) days after receipt ofthe 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 ofcompetent
jurisdiction,ora federal or State agency..
7.5 Annual Reports
Within ninety (90) days of the end ofthe calendar year, Grantee shall submit to the City a written
report, which shall include, but not necessarily be limited to, the following information:
(A) A Gross Revenue statement for the preceding year and all deductions and
computations for the period, and such statement shall be reviewed by a certified public accountant,
who may also be the chieffinancial officer or controller ofGrantee, prior to submission to the City;
(B) A summary ofthe previous year's activities regarding the development ofthe Cable
System,including,but not limited to,beginning and ending plant miles, any technological changes
occurring in the Cable System and the number ofSubscribers for each class ofCable Service (i.e.,
Basic, Expanded Basic Service, Premium, etc.);
(C) A description ofplanned construction,ifany,for the current year; and
(D) An executive summary ofSubscriber complaints received in the previous year.
7.6 False Statements
Any intentional false or misleading statement or representation in any report required by this
Franchise shall be a material breach ofthis Franchise and may subject Grantee to all remedies, legal
or equitable, which are available to the City under this Franchise or otherwise.
7.7 Failure to Report
.The failure or neglect of Grantee to file any ofthe information required under this Franchise (not
including clerical errors or errors made in good faith) may, at the City's option, be deemed a breach
ofthis Franchise.
SECTION 8.PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide at least the following initial broad categories of programming to the extent
such categories are reasonably available:
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(A)Educational programming;
(B)Washington news,weather and information;
(C)Sports;
(D)General entertainment including movies;
(E)Children,family oriented;
(F)Arts,culture and performing arts;
(G)Foreign language programming;
(H)Science/documentary;
(I)National news,weather and information;and
(l)Access programming.
8.2 Deletion of Broad Programming Categories
(A)Grantee shall not delete or so limit as to effectively delete any broad category of
programming within its control without prior written notice to the City.
(B)In the event ofa modification proceeding under federal law,the mix and quality of
Cable Services provided by Grantee on the effective date ofthis Franchise must be maintained after
any such modification.
8.3 Surveys
Upon request ofthe City, but not more frequently than once every two (2) years, the Grantee shall
provide to the City written questions that it intends to use in upcoming surveys of customer
satisfaction.The City may suggest new or modified questions,which the Grantee,in the reasonable
exercise of its discretion,may add to the customer survey it conducts.Upon completion of the
customer survey of Subscribers in the Franchise Area,Grantee shall provide the results thereof to
the City.Nothing herein shall be construed to limit the right ofthe City to conduct its own surveys
at its own expense.
8.4 Continuity of Service Mandatory
(A) It shall be the right of all Subscribers to continue to receive Cable Service from
Grantee insofar as their financial and other obligations to Grantee are honored.The Grantee shall
use reasonable efforts so as to ensure that all Subscribers receive continuous,uninterrupted Cable
Service.For the purposes ofthis subsection,"uninterrupted"does not include short-term outages of
the Cable System for upgrade construction,maintenance or testing.
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(B)In the event a new Cable Operator acquires the Cable System in accordance with
this Franchise, Grantee shall reasonably cooperate with the City and the new Cable Operator to
maintain continuity ofCable Service to all Subscribers.During any transition period, Grantee shall
be entitled to the revenues for any period during which it operates the Cable System, and shall be
entitled to reasonable costs for its services,if such services are requested by the City, when it no
longer operates the Cable System.
8.5 Obscenity
Grantee shall not transmit, or permit to be transmitted, over any Channel subject to its editorial
control any programming which is obscene under applicable federal, State or local laws, statutes,
regulations or standards now existing or hereafter adopted.
8.6 Parental Control Device
Upon request by any Subscriber, Grantee shall make available a parental control or lockout device,
traps or filters to enable a Subscriber to control access to both the audio and video portions ofany
or all Channels. Grantee shall inform its Subscribers ofthe availability ofthe lockout device at the
time oftheir initial subscription and periodically thereafter.
8.7 New Technology
If there is a new technology which in the City's opinion would enhance substantially the quality or
quantity ofprograrnming available to Subscribers on the System, Grantee shall, at the request ofthe
City, investigate the feasibility ofimplementing said technology and report to the City the results of
such investigation.
8.8 Services for the Disabled
Grantee shall comply with the Americans With Disabilities Act and any amendments or successor
legislation thereto.
SECTION 9.ACCESS
9.1 Access Channels
Upon the effective date of this Franchise and throughout the term hereof, Grantee shall make
available at its expense:
One Governmental Access Channel for use by the City; and
One Educational Access Channel for use by the Lakewood School District.
Any Access Channels provided via digital or compressed video technology shall have at least the
same transmission quality as is used to carry any of the commercial Channels that deliver
programming on the System. The provision of Access Channels via digital or compressed video
technologywill not reduce the total number ofAccess Channels required herein.
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 transmission ofAccess
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programming,Grantee shall at its own expense take necessary technical steps and provide
necessary technical assistance,including the acquisition ofall necessary equipment and full training
of Access personnel,to ensure that the capabilities of Access Channels are not diminished or
adversely affected by such change.For example,this provision shall apply ifBasic Service on the
Cable System is converted from an analog to a digital format, such that the Access Channels must
also be converted to a digital format in order to be received by Subscribers.
9.2 Management and Control ofAccess Channels
(A)The City may authorize Designated Access Providers to control,operate and
manage the use ofany and all Access facilities provided by Grantee under this Franchise,including,
without limitation,the operation ofAccess Channels.The City or its designee may formulate rules
for the operation of the Access Channels,consistent with this Franchise.Nothing herein shall
prohibit the City from authorizing itselfto be a Designated Access Provider.
(B)Grantee shall cooperate with the City and Designated Access Providers in the use of
the System and Access facilities for the provision of Access Channels.To the extent allowed by
law, the City agrees to indemnify.-savc and hold harmless Grantee from and against any and all
liability resulting from the City's use ofthe Governmental Access Channel.
9.3 Additional Access Channels
In addition to the Access Channels referenced in Section 9.1 above, the City may require Grantee to
make available at no charge additional Access Channels, as established by the triggers set forth
below.
One additional channel shall be made available for each Access category when either ofthe initial
channels required above respectively isused for original Educational Access or Governmental
Access programming (excluding character generated and filler programming,e.g., AM/FM radio
programming)during fifty percent (50%)of the hours between 10:00 AM and 10:00 PM,during
any consecutive ten (10) week period.Except for character generated announcements,the
programming shall be distinct and non-repetitive ofthe previous channel. Based upon this criteria,
the Grantee shall,within six (6)months following a written request by the City, provide another
respective designated Access Channel.
9.4 Location ofAccess Channels
Subject to must carry requirements,Grantee will carry the City's programming on Channel 21.
Grantee shall use its best efforts to provide ninety (90) days advance written notice to the City and
at least thirty (30) days advance written notice to the City prior to any relocation ofAccess Channel
21. In connection with the movement of the City's Government Access Channel to another
Channel number,Grantee shall provide, at its expense,a bill message on Subscribers'bills, and the
City may provide,at its expense, a bill insert.
9.5 Access Interconnections
Grantee shall Interconnect the Access Channels ofthe Cable System with the Access Channels of
any other contiguous cable system not owned or operated by Grantee or an Affiliate of Grantee if
technically feasible and not financially burdensome to Grantee.Interconnection of Access
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Channels may be accomplished by a direct fiber optic or cable connection or by other appropriate
methods. Grantee shall not be required to Interconnect with the other cable system unless the cable
operator of that system is willing to do so and such cable operator shall pay for its own costs of
constructing and maintaining the Interconnect up to the connection point.
9.6 Access Capital Advance
No later than forty-five (45)days after the adoption ofthis Franchise, Grantee shall pay to the City a
capital advance in the amount of $3,000. Additionally, at the beginning of year two of this
Franchise, Grantee shall pay to the City another capital advance in the amount of$3,000. These are
advance payments ofthe Capital Contribution set forth in subsection 9.7.These support grants may
be used by the City for capital expenditures related to Access construction, renovation, equipment
or facilities.These grants shall in no way be considered in lieu of Franchise Fees and shall not
reduce in any way Franchise Fees owed to the City under this Franchise. To the extent allowed by
federal law, these capital advances may be treated as an external cost by Grantee and itemized on
Subscribers' bills.
9.7 Capital Contribution
Commencing with the effective date of this Franchise, Grantee shall provide a capital contribution
to the City for Access capital costs ("Capital Contribution") in an amount not to exceed $1.00 per
Subscriber per month throughout the term of this Franchise. As of the effective date of this
Franchise, that figure shall be $1.00 per Subscriber per month. The monthly amount may be
reduced, as determined by the City Council. Grantee shall be entitled to retain the Capital
Contribution up to the amounts advanced in subsection 9.6. Thereafter, the Capital Contribution
shall be paid quarterly to the City. Grantee shall not be responsible for paying the Capital
Contribution with respect to gratis or bad debt accounts. Within ninety (90) days after the end of
each year, Grantee shall provide a report to the City regarding such gratis or bad debt accounts,
which report may be included as part ofanother report. The City can inquire as to the status ofany
such accounts, and the Grantee agrees to meet with the City, upon request, to discuss such matters
as necessary.To the extent allowed by federal law, the Capital Contribution may be treated as an
external cost by Grantee and itemized on Subscribers' bills. The City shall have discretion to
allocate the Capital Contribution in accordance with applicable law,provided the City submits a
summary of capital expenditures from the Capital Contribution to Grantee within ninety (90) days
ofthe end ofeach calendar year. To the extent the City makes Access investments using City funds
prior to receiving necessary capital advances or Capital Contribution funds, the City is entitled to
apply subsequent capital advances or Capital Contribution payments from Grantee toward such
City capital investments.
The City and Grantee agree that any Capital Contribution shall be referred to on Subscribers' bills
as an "EG fee", or language substantially similarthereto. Grantee shall not change such reference
on the Subscribers' bills without the prior written consent of the City, which consent shall not be
unreasonably withheld.
9.8 Access Channels On Lowest Tier
All Access Channels provided to Subscribers under this Franchise shall be included by Grantee as a
partofthe Basic Service Tier.
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9.9 Use of Educational and Governmental Access Channels
Access Charmels shall be placed under the authority ofthe City for use related to governmental and
educational purposes.Access Channel use shall include sponsorships and underwriting.Grantee
shall not exercise editorial control over programming ofany Access Charmel made available to the
City or the Lakewood School District for their use. Grantee will not interrupt at its headend or hub
site, the signal provided on any Access Channel,except during an upgrade, or during circumstances
beyond Grantee's control or ifnecessary for testing or planned system maintenance purposes.
9.10 Technical Quality
The Grantee shall, at its expense,maintain all Access services,Channels and Interconnections at the
same level oftechnical quality and reliability as that for the rest ofits System.The Grantee shall, at
its expense,provide routine maintenance and repair and replace,if necessary,any of Grantee's
equipment required to carry a quality signal to and from the City's (and Designated Access
Providers')and the Grantee's facilities for the Access Channels.
9.11 Underutilized AccessChannels
Grantee and the City agree that it is their mutual goal to fully and efficiently use the Channel
capacity ofthe Cable System,which may include allowing the Grantee to use underutilized time on
the dedicated Access Channels.If Grantee believes that any Access Charmel has underutilized
time,Grantee may file a request with the City to use that time.In response to the request, the City
will consider a combination of factors, including, but not limited to, the community's needs and
interests, and the source, quantity, type and schedule of the programming carried on the Access
Channel.The City will also consider, taking into account the mission of Access programming,
whether it is feasible for the Designated Access Providers to cluster Access programming into
blocks of time such that the Channel space can be compatibly shared between the Designated
Access Provider and the Grantee and/or ifseveral Designated Access Providers can combine their
programming onto a single Access Channel. The City shall render its decision regarding the matter
within sixty (60) days ofreceiving the request. Should the City find that the Access Channel or a
portion ofthe Access Channel may be used by the Grantee, then Grantee maybegin using such time
ninety (90) days after receipt of the decision.The Grantee's request shall not be unreasonably
denied. Any permission granted pursuant to this subsection for use of an Access Channel or a
portion thereofshall be considered temporary.
At such time as a Designated Access Provider believes that it has the resources and ability to utilize
the Access Channel time currently used by the Grantee pursuant to this subsection,a Designated
Access Provider may request that the City return such Channel or portion ofthe Channel for Access
purposes. In response to the request, the City will consider a combination offactors, including, but
not limited to, the community's needs and interests,and the source,quantity,type and schedule of
the programming proposed to be carried on the Access Channel as well the applicant's ability and
resources to acquire or produce the proposed Access programming.The City will also consider,
taking into account the mission of the Access programming,whether it is feasible for the
Designated Access Providers to cluster Access programming into blocks of time such that the
Channel space can be compatibly shared between the Designated Access Provider and the Grantee
and/or ifseveral Designated Access Providers can combine their programming onto a single Access
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Channel. The City shall render its decision regarding the matter within sixty (60) days ofreceiving
the request. Should the City find that the evidence exists to support the return of the Access
Channel or a portion of the Access Channel to the Designated Access Provider, then Grantee shall
surrender the Access Channel or the requested time on the Access Channel, as applicable, within
ninety (90) days ofreceiving the decision. The Designated Access Provider's request shall not be
unreasonably denied.
9.12 Information about Access Programming
Grantee shall include information about Access programming in the installation packet provided to
Subscribers.The City shall supply the materials, for insertion in the packet, in a format consistent
with Grantee's requirements.
SECTION 10.GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1 Right to Construct
Subject to generally applicable laws, regulations, rules, resolutions and ordinances of the City and
the provisions ofthis Franchise, Grantee may perform all construction in the Rights-of-Way for any
facilityneeded for themaintenance,upgrade or extension ofGrantee's Cable System.
10.2 Right-of-Way Meetings
Subject to receiving advance notice,Grantee shall make reasonable efforts to attend and participate
in meetings ofthe Cityregarding Right-of-Way issues that may impact the Cable System.
10.3 General Standard
All work authorized and required hereunder shall be done in a safe, thorough and workmanlike
manner. All installations of equipment shall be durable and installed in accordance with good
engineeringpractices.
10.4 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, but not limited to, telecommunications, gas
and electric companies), licensees,pennitees and frarichisees so as to reduce so far as possible the
number ofRight-of-Way cuts within the Franchise Area.
10.5 Movement of Facilities During Emergencies
During emergencies, the Citymay move Grantee's facilities without prior notice.
10.6 OneeaU
Grantee will maintain membership in good standing with the Utility Coordinating Councilor other
similar or successor organization which is designated to coordinate underground equipment
locations and installations. Grantee shall abide by the State's "Underground Utilities" statutes and
will further comply with and adhere to local procedures, customs and practices relating to the one
call locator service program..
10.7 Permits Required for Construction
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Prior to doing any work in the Right-ofWay 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 ofprotecting any structures in such
Rights-of-Way,and in providing for the proper restoration ofsuch Rights-of-Way and to protect the
public and the continuity of pedestrian or vehicular traffic.Grantee shall pay all generally
applicable fees for the requisite City permits.
10.8 Emergency Permits
In the event that emergency repairs are necessary,Grantee shall immediately notify the City ofthe
need for such repairs. Grantee may initiate such emergency repairs, and shall apply for appropriate
permits within forty-eight (48) hours after discovery ofthe emergency.
10.9 Compliance with Applicable Codes
(A)City Codes. Grantee shall comply with all applicable City codes, including,without
limitation,construction codes,building codes, the Fire Code and zoning codes and regulations.
(B)Regulations and Safety Codes. Grantee shall comply with all applicable federal,
State and City safety requirements,rules,regulations,laws and practices.By way ofillustration and
not limitation,Grantee shall comply with the National Electric Code,National Electrical Safety
Code and Occupational Safety and Health Administration (OSHA)Standards.
10.10 GIS Mapping
Grantee shall comply with any generally applicable ordinances, rules and regulations of the City
regarding geographic information systems mapping for users ofthe Rights-of-Way.
10.11 Least Interference
Work in the Right-of-Way,or on other public or 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 Cable System shall be constructed and maintained in such a manner as not to
interfere with sewers,water pipes or any other property ofthe 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 Cable System shall be located,erected and maintained so
as not to endanger or interfere with the lives of persons, or to unreasonably interfere with new
improvements the City may deem proper to make or to unnecessarily hinder or obstruct the free use
ofthe Rights-of-Way or other public property,and shall not interfere with travel and use ofpublic
places by persons during the construction,repair,operation or removal thereof, and shall not
obstruct or impede traffic.In the event ofsuch unreasonable 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.
10.12 Prevent Injury/Safety
Grantee shall provide and use any equipment and facilities necessary to control and carryGrantee'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
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repair,and safe and presentable condition. All excavations made by Grantee in the Rights-of-Way
shall be properly safeguarded for the prevention ofaccidents.
10.13 Notice to Private Property Owners
Except in the case ofan emergency involving public safetyor an outage, or service interruption to a
large number of Subscribers, Grantee shall give reasonable advance notice to private property
owners or tenants ofwork on or adjacent to such private property.
10.14 Underground Construction and Use of Poles
(A) The Grantee shall utilize existing poles and conduit wherever possible.
(B)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 ofaerial installation.
(C)Where electric and telephone lines are underground at the time of Cable System
construction or upgrade, or when such wiring is subsequently placed underground, all Cable System
lines shall also be placed underground with other wireline service at no expense to the City or
Subscribers.Related Cable System equipment,such as pedestals or power supplies, must be placed
in accordance with the City's applicable code and permit requirements and rules.
(0)This Franchise does not grant, give or convey to the Grantee the right or privilege to
install its facilities in any manner on specific utility poles or equipment ofthe City or ofany other
Person.
(E)The Grantee and the City recognize that situations may occur in the future where the
City may desire to place its own fiber optic cable in trenches or bores opened by the Grantee. The
Grantee agrees to cooperate with the City in any construction that involves trenching or boring,
provided that the City has first provided reasonable notice to the Grantee in some manner that it is
interested In sharing the trenches or bores in the area where the Grantee's construction is occurring..
The Grantee shall allow the City to lay City conduit and fiber optic cable in the Grantee's trenches
and bores, provided the City shares pro rata in the cost of the trenching and boring with Grantee.
The City shall be responsible for maintaining its respective conduit and fiber optic cable, which is
buried in the Grantee's trenches and bores.
10.15 Restoration of Property
(A) The Grantee shall protect public and private property from damage.If damage
occurs, the Grantee shall promptly notify the property owner within twenty-four (24) hours.
(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)Grantee shall warrant any restoration work performed by or for Grantee in the
Right-of-Way or on other public property or private property for one (1) year, unless a longer period
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is.required by the City Code or any generally applicable ordinance or resolution of the City.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 reasonable 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 shall pay the City.
(D)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 twenty-four (24)hours,considering the nature of the work that must be
performed.
10.16 Discontinuing Use
Whenever Grantee intends to discontinue using any facility within the Rights-of-Way,Grantee shall
notify the City ofits intention. Grantee may remove the facility or request that the City permit it to
remain in place.Notwithstanding Grantee's request that any 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, or convenience,or otherwise serve the public interest. The City
may require Grantee to perform a reasonable combination of modification and removal of the
facility.Grantee shall complete such removal and/or modification respectively in accordance with
a schedule reasonably set by the City. Until such time as Grantee removes or modifies the facility
as reasonably directed by the City, or until the rights to and responsibility for the facility are
accepted by another Person having authority to use, construct and/or maintain such facility, Grantee
shall retain all liability for such facility and be responsible for all necessary repairs and relocations
ofthe facility, as well as maintenance ofthe Right-of-Way,in the same manner and degree as ifthe
facility were in active use.
10.17 Movement ofCable 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 ofthe City
in the event ofan emergency or when necessary to protect or further the health,safety or welfare of
the general public,and such work shall be performed at Grantee's expense.Except during an
emergency,the City shall provide reasonable notice to Grantee, not to be less than ten (10)business
days, and allow Grantee the opportunity to perform such action.In the event of any capital
improvement project exceeding $150,000 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 ofits 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.Iffunds are generally made available
to users ofthe Rights-of-Way for such relocation,Grantee shall be entitled to its pro rata share of
such funds.
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If the Grantee fails to complete theabove work within the time prescribed and to the City's
reasonable satisfaction, the City may cause such work to be done and bill the reasonable cost ofthe
work to the Grantee, including all reasonable 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 Cable System. Within thirty (30) days ofreceipt of an itemized list of those costs, the
Grantee shall pay the City.
10.18 Movement of Cable System Facilities for Other Franchise Holders
If any removal, replacement, modification or disconnection of the Cable 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 or disconnection of the Cable System be
paid by the benefited party, and Grantee may require a reasonable deposit ofthe estimated payment
in advance.
10.19 Temporary Changes for Other Permitees
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 expense of such temporary changes must be paid by the
permit holder, and Grantee may require a reasonable deposit ofthe estimated payment in advance.
10.20 Reservation of City Use of Right-of-Way
Nothing in this Franchise shall prevent 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
Cable System.
10.21 Tree Trimming
Grantee may prune or cause to be pruned, using proper pruning practices, any tree in the Rights-of-
Way which interferes with Grantee's Cable System. Grantee shall comply with any general
ordinance or regulations ofthe 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 (I)week period.Ifthe owner or occupant fails to do
so, Grantee may prune such tree at its own expense. For purposes ofthis subsection, emergencies
exist when it is necessary to prune to protect the public or Grantee's facilities from imminent danger
only.
10.22 Inspection ofConstruction and Facilities
The City may inspect any of Grantee's facilities, equipment or construction within the Rights-of-
Way and on other public property upon at least twenty-four (24)hours notice, or, in case of an
emergency, upon demand without prior notice. If an unsafe condition is found to exist, the City, in
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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 inspect,repair and correct the unsafe
condition ifGrantee fails to do so, and to reasonably charge Grantee therefor.
10.23 Stop Work
(A)On notice from the City that any work is being performed contrary to the provisions
ofthis Franchise,or in an unsafe or dangerous manner as reasonably determined by the City, or in
violation ofthe terms ofany applicable permit,laws,regulations,ordinances or standards,the work
may immediatelybe stopped bythe City.
(B)The stop work order shan:
(1) Be in writing;
(2) Be given to the person doing the work, or be posted on the work site;
(3) Be sent to Grantee by overnight delivery at the address given herein;
(4) Indicate the nature ofthe alleged violation or unsafe condition;and
(5)Establish conditions under which work may be resumed.
10.24 Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be licensed and bonded in accordance with the City's
generally applicable 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 shan 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 applicable laws,
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 ofthis Franchise and applicable laws
governing the work performed by them.
SECTION 11.SYSTEM TECHNICAL STANDARDS
11.1 Subscriber Network
(A)Grantee's current Cable System is an operational hybrid fiber coaxial Cable System
with a minimum capacity of two hundred (200)Channels of Video Programming,and the Cable
System has two-way capability throughout the Franchise Area. The Cable System shall be capable
ofsupporting the fun range ofCable Services offered by Grantee.
(B)Equipment must be installed so that all closed captioned programming received by
the Cable System shall include the closed caption signal, so long as the closed caption signal is
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provided consistent with FCC standards.Equipment must also be installed so that all signals
received in stereo are retransmitted in stereo.
(C)Grantee will take prompt corrective action ifit finds that any facilities or equipment
on the Cable System are not operating as expected, or ifit finds that facilities and equipment do not
comply with the requirements ofthis Franchise or applicable law.
(D)Grantee's construction decisions shall be based solely upon legitimate engineering
decisions and shall not take into consideration the income level of any particular part of the
Franchise Area.
11.2 Cable Services in Comparable Communities
Upon request,Grantee shall, every two (2) years following the effective date of this Franchise,
provide detailed information to the City about Cable Services offered on a non-test basis in
"similarly situated"cable systems in the region.If such Cable Services are not also being offered
on Grantee's Cable System in the Franchise Area, Grantee shall provide information on why such
Cable Services are not being offered in the Franchise Area and an estimated cost to supply such
Cable Services.If economically feasible and technically available,Grantee shall deploy such
services in a reasonable timeframe, provided that Grantee shall have the capability to recover its
capital expenditures related thereto during the remaining time period left on this Franchise.
11.3 Standby Power
Grantee shall provide standby power generating capacity at the Cable System headend capable of
providing twelve (12)hours ofemergency operation.Grantee shall maintain standby power system
supplies that will supply back-up power ofat least two (2) hours duration throughout the trunk and
distribution networks,and four (4) hours duration at all nodes and hubs.In addition,throughout the
term of this Franchise,Grantee shall have a plan in place, along with all resources necessary for
implementing such plan,for dealing with outages ofmore than two (2) hours. This outage plan and
evidence of requisite implementation resources shall be presented to the City no later than thirty
(30) days following receipt ofa request therefor.
11.4 Emergency Alert Capability
(A)Emergency Alert System ("EAS") activation will be accomplished in compliance
with all federal,state and local laws.
(B)The City shall allow only appropriately trained and authorized persons to operate the
EAS equipment provided pursuant to this subsection and shall take reasonable precautions to
prevent any use of the Grantee's Cable System that in any marmer results in an inappropriate use
thereof. To the extent allowed by law, the City shall hold the Grantee,its employees and officers
harmless from any claims arising out of the emergency use of the EAS facilities by the City,
including,but not limited to, reasonable attorneys' fees and costs.
(C)Grantee shall ensure that the EAS is functioning properly at all times.It will test the
EAS periodically,in accordance with applicable law. Upon request,Grantee will advise the City of
the testing schedule so that the City may be present for the tests.
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11.5 Technical Performance
The technical performance ofthe Cable System shall meet or exceed all applicable federal technical
standards, as they may be amended from time to time, regardless ofthe transmission technology
utilized. The City shall have the full authority permitted by applicable law to enforce compliance
with these technical standards.
11.6 Cable System Performance Testing
(A) Grantee shall, at Grantee's expense, perform the followingtests on its Cable System:
(1) All tests required by the FCC;
(2) All other tests reasonably necessary to determine compliance with technical
standards adopted by theFCC at any time during the term ofthis Franchise; and
(3) All other tests as otherwise specified in this Franchise.
(B)At a minimum,Grantee's tests shall include:
(I)Cumulative leakage index testing;
(2) Semi-annual compliance and proof of performance tests in conformance
with generally accepted industry guidelines;
(3) Tests in response to Subscriber complaints; and
(4) Periodic monitoring tests, at intervals not to exceed six (6) months,of
Subscriber (field) test points, the headend, and the condition ofstandby power supplies.
Upon request, all required technical performance tests may be witnessed by
representatives ofthe City.
(C)Grantee shall maintain written records of all results of its Cable System tests,
performed by or for Grantee. Copies ofsuch test results will be provided to the Cityupon request.
(D) Grantee shall promptly take such corrective measures as are necessary to correct any
performance deficiencies fully and to prevent their recurrence as far as possible. Grantee's failureto
correct deficiencies identified through this testing process shall be a violation of this Franchise.
Sites shallbe re-tested following correction.
11.7 Additional Tests
Where there exists other evidence which in the judgment ofthe Citycasts doubt upon the reliability
or technical quality ofthe Cable System, the City shall have the right and authority, upon thirty(30)
days notice, to require Grantee to test, analyze and report on the performance ofthe Cable System.
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Grantee shall fully cooperate with the City in performing such testing and shall prepare a report,if
requested,within thirty (30)days after testing.Such report shall include the following information:
(A) the nature ofthe complaint or problem which precipitated the special tests;
(B)the Cable System component tested;
(C)the equipment used and procedures employed in testing;
(D) the method,ifany, in which such complaint or problem was resolved;and
(E)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)In General.Subject to the density provisions described in Section 13.1(D) below,
Grantee shall provide Cable Service within seven (7) days ofa request by any potential Residential
Subscriber within the Franchise Area. For purposes of this subsection,a request shall be deemed
made on the date ofsigning a service agreement,receipt of funds by Grantee,receipt of a written
request by Grantee or receipt by Grantee of a verified verbal request.Grantee shall provide such
service:
(1)With no line extension charge except as specifically authorized elsewhere in
this Section.
(2) At a nondiscriminatory installation charge for a standard installation,
consisting of a one hundred twenty-five (125) foot aerial drop connecting to the exterior
demarcation point for Residential Subscribers,with additional charges for non-standard
installations computed according to a nondiscriminatory methodology for such installations.
(3) At nondiscriminatory monthlyrates in accordance with applicable laws.
(B)Provision of Cable Service.Grantee shall not arbitrarily refuse to provide Cable
Service to any Person within the Franchise Area.Notwithstanding the foregoing,Grantee may
introduce new or expanded Cable Services on a phased basis,where such services require an
upgrade ofthe Cable System.
(C)Service to Multiple Dwelling Units.The Grantee shall provide cable service to
Multiple Dwelling Units in accordance with an agreement with the property owner or owners,this
Franchise and all applicable laws.
(D)Customer Charges for Extensions of Service. For unusual circumstances,such as
the existence of more than one hundred twenty-five (125) feet ofaerial distance from distribution
32
cable to connection ofservice to customers, or a density ofless than twenty-five (25) residences per
5280 cable-bearing strand feet of trunk or distribution cable, service may be made available on the
basis of a capital contribution in aid of construction,including the cost of material, labor and
easements. For the purpose ofdetermining the amount ofcapital contribution in aid ofconstruction
to be borne by the Grantee and customers in the area in which service may be expanded, the
Grantee will contribute an amount equal to the construction and other costs per mile, multiplied by
a fraction whose numerator equals the actual number ofresidences per 5280 cable-bearing strand
feet of its trunk or distribution cable and whose denominator equals twenty-five (25). Potential
customers who request service hereunder will bear the remainder ofthe construction and other costs
on a pro rata basis. The Grantee may require that the payment ofthe capital contribution in aid of
construction borne by such potential customersbe paid in advance.
12.2 Connectionof Public Facilities
Grantee shall, without charge,provide a standard installation and one outlet of Basic Service and
Expanded Basic Service to City Hall and all other City owned (or leased) and occupied buildings,
including, but not limited to, fire stations andpolice stations, schools and public libraries in the City
that are passed by the Cable System if those locations are not receiving free Basic Service and
Expanded Basic Service from another cableoperator.In addition, Grantee shall provide, at no cost
to the City or other entity, a standard installation and one outlet of Basic Service and Expanded
Basic Service to future owned (or leased) and occupied City buildings, fire stations and police
stations, schools and public libraries upon request,provided that the drop line from the feeder cable
to such building does not exceed one hundred twenty-five (125)aerial feet unless the City or other
entity agrees to pay the incremental cost of such drop line in excess of one hundred twenty-five
(125)aerial feet, including the cost of excess labor and materials and further provided that the
buildings are not receiving free Basic Service and Expanded Basic Service from another cable
operator. The Cable Service provided herein shall not be distributed beyond each originally
installed outlet without authorization from Grantee. Such Cable Service shall not be used for
commercial purposes or for viewing by the general public nor shall it be extended to areas ofCity
buildings where the Grantee would normally enter into a commercial contract to provide such
Cable Service (e.g.., a golfcourse).
Ifadditional outlets are provided by Grantee pursuant to this subsection, the building owner and/or
occupant shall pay the usual installation fees associated therewith; however, there shall be no
additional charge for the Cable Service. Outlets ofBasic and Expanded Basic Service provided in
accordance with this subsection may be used to distribute Cable Services throughout such
buildings, provided such distribution canbe accomplished without causing Cable System disruption
and general technical standards are maintained. Such outlets may only be used for lawful purposes.
The City shall take reasonable precautions to prevent any use of Grantee's Cable System in City
buildings that may result in an inappropriate use thereof The standard installations and Cable
Service provided pursuant to this subsection are voluntary initiatives of Grantee and will be
continued throughout the term ofthis Franchise.
SECTION 13.FRANCHISE VIOLATIONS
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13.1 Procedure for Remedying Non-Material Franchise Violations
(A)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 ofthe alleged default.Grantee shall have thirty (30) days from the receipt ofsuch notice 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
(3)notify the City that Grantee cannot cure the default within thirty (30) days,
because ofthe nature ofthe 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)IfGrantee does not cure the alleged default within the cure period stated above, or
denies the default and requests a meeting in accordance with subsection (A)(I),or the City orders a
meeting in accordance with subsection (A)(3), the City shall set a meeting to investigate said issues
and the existence ofthe alleged default. The City shall notify Grantee ofthe 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 breach within fifteen (15) 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
subsection 14.2; or
(2)Recommend any other legal or equitable remedy available under this
Franchise or any applicable law.
(D) The determination as to whether a non-material violation of this Franchise has
occurred shall be within the discretion of the City,provided that any such determination may be
subject to appeal to the City Council or review by a court ofcompetent jurisdiction under applicable
law.
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13.2 Revocation
(A) The City may revoke this Franchise and rescind all rights and privileges associated
with this Franchisein the followingcircumstances:
(I)If Grantee fails to perform any material obligation under this Franchise-or
under anyother agreement,ordinance or documentregarding theCityand Grantee;
(2)If Grantee willfully fails for more than three (3) days to provide continuous
anduninterruptedCableService;
(3)If Grantee attempts to evade any material provision of this Franchise or to
practice anyfraud or deceitupon theCity or Subscribers;
(4)IfGrantee becomes insolvent, or ifthere is an assignment for the benefit of
Grantee'screditors;
(5) If Grantee makes a material misrepresentation offact in the application for
or negotiation ofthisFranchise; or
(6)IfGranteebreaches amaterial provision ofthe Customer Service Standards.
(B)Prior to forfeiture or termination ofthe Franchise, the City shall give written notice
to the Grantee ofits intent to revoke the Franchise. The notice shall set forththe exact nature ofthe
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 satisfactoryresponse from Grantee, it may then seek a termination of the Franchise by
the City Councilin accordancewith this subsection.
(C)Any proceeding regarding revocation 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.
(I)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 toquestion witnesses. A complete verbatimrecord and transcriptshall be made ofsuch
proceedingand the cost shall be shared equallybetween the parties. The City Council shall
hear any persons interested in the revocation, and shall allow Grantee, in particular, an
opportunityto state itsposition on thematter.
(2) Within ninety (90) days after the hearing, the City Council shall determine
whether to revoke the Franchise; or if the breach at issue is capable of being cured by
Grantee,the City Council shall directGrantee to take appropriateremedialaction within the
time and in themanner and on theterms andconditionsthat theCityCouncildetermines are
reasonable under the circumstances.If the City Council determinesthat the Franchise is to
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be revoked, the City Council shall Set forth the reasons for such a decision and shall
transmit a copy ofthe decision to the Grantee. Granteeshall be bound by the City Council's
decision to revoke the Franchise unless it appeals the decision to a court of competent
jurisdiction within thirty (30) days ofthe date ofthe decision.
(3) Grantee shall be entitledto such relief as the courtmay deem appropriate.
(4) The City Council may in its sole discretion take any lawful action that it
deems appropriate to enforce the City's rights under the Franchise in lieu of revocation of
the Franchise.
13.3 Procedures in the Event ofTermination
(A) If this Franchise expires without renewal or is otherwise lawfully terminated or
revoked, the Citymay,subject to applicablelaw:
(I)Require Grantee to maintain and operate its Cable System lIfld I Net on a
month-to-monthbasis until anew Cable Operatoris selected;or
(2) Purchase Grantee'sCableSystemin accordancewith theprocedures set forth
in subsection 14.4, below.
(B)The City may order the removal of the above-ground Cable System facilities and
such underground facilities from the Franchise Area at Grantee's sole expense within a reasonable
period oftime 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 a condition as that prevailing prior to Grantee's
removal of its equipment and without affecting electrical or telephone wires or attachments. The
indemnificationand insurance provisions and the suretybond,ifany, shall remain in full force and
effect during the period ofremoval,and Grantee shall not be entitled to, and agrees not to request,
compensation ofanysort therefore.
(C)If Grantee fails to complete any removal required by subsection 14.3 (B) 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 surety bond,if any,if
Grantee has not paidsuch amount within the foregoingthirty(30) daytime period.
(D)The City may seek legal and equitable relief to enforce the provisions of this
Franchise.
13.4 Purchase of Cable System
(A) If at any time this Franchise is lawfully revoked, terminated or not renewed (in
accordance with federallaw), the City shallhave the optionto purchasethe Cable System.
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(B) The City may, at any time after Franchise revocation,termination or non-renewal,
offer in writing to purchase Grantee's Cable System.In any case where the City elects to purchase
the Cable System, the purchase shall be closed within one hundred twenty (120) days ofthe date of
the City's audit ofa balance sheet and current profit and loss statement ofGrantee's Cable System.
The City shall, as applicable,pay for the Cable System in cash or certified funds, and Grantee shall
deliver appropriate bills ofsale and other instruments ofconveyance.
(C)For the pwposes of this subsection,the price for the Cable System shall be
determined as follows:
(I)In the case ofthe expiration ofthe Franchise without renewal, at fair market
value determined on the basis of Grantee's Cable System valued as a going concern,but
with no value allocated to 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 which the City may assume.
(2)
System.
In the case of revocation for cause,the equitable price of Grantee's Cable
13.5 Receivership and Foreclosure
(A) At the option ofthe 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 a receivership,reorganization,bankruptcy or other action or proceeding,unless:
(I)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 trustees assume and agree to be
bound by each and every term,provision and limitation ofthis Franchise.
(B)If there is a foreclosure or other involuntary sale of the whole or any part of the
plant,property and equipment ofGrantee,the City may serve notice ofrevocation 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 afterservice ofsuch notice,unless:
(I)The City has approved the transfer ofthe Franchise,in accordance with the
procedures 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 ofthe terms and conditions ofthis Franchise.
13.6 Alternative Remedies
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No provision of this Franchise shall be deemed to bar the City or the Grantee from seeking
appropriatejudicial relief Neither the existence ofother 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 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. The City specifically does not, by any provision of this Franchise,
waive any right, immunity, limitation or protection (including complete damage immunity)
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 Assessment of MonetaryDamages
The City and Grantee recognize the delays,expenseand unique difficulties involvedin 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 ofspecific provisions of this Franchise. Such amounts are agreed to by
both parties as a reasonable estimate of the actual damages the City would suffer in the event of
Grantee'sbreach ofsuch provisions ofthis Franchise.
Subject to the City's giving written notice to the Grantee and a thirty (30) day right to cure period,
the City may assess against Grantee monetary damages up to two hundred fifty dollars ($250.00)
per day for material departure from the FCC technical performance standards; one hundred dollars
($100.00) per day for failure to provide the Access Channels or any equipment related thereto
which is required hereunder; one hundred dollars ($100.00)per day for each material violation of
the Customer Service Standards; fifty dollars ($50.00) per day for failure to provide reports or
notices as required by this Franchise; andup to one hundred dollars ($100.00) per day for any other
material breachesor defaults under theFranchise;providedhowever, inno event shall the aggregate
amount of any such monetary penalties assessed during the term of the franchise exceed fifty
thousand dollars ($50,000).
13.8 Effect ofAbandonment
If the Grantee abandons its Cable System during the Franchise term, or fails to operate its Cable
System in accordancewith its duty to provide continuousservice, theCity, at its option,may obtain
an injunction,or operate the Cable System, or designate another entity to operate the Cable System
temporarily until the Grantee restores service under conditions acceptable to the City,or until the
Franchise is revoked and a new franchisee is selected by the City. If the City operates the Cable
System, or designates another entity to operate the Cable System, the Grantee shall reimburse the
City or the City's designee, as applicable, for all reasonable costs,expenses and damages incurred.
If Grantee permanently abandons any of its facilities then,at the City's sole discretion, such
facilitiesmay become the property oftheCity.
SECTION 14.FRANCHISE RENEWAL
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(A) The City and Grantee agree that any proceedings undertaken by the City that relate
to the renewal of the Franchise shall be governed by and comply with the provisions ofSection 626
ofthe Cable Act, unless the procedures or substantive protections set forth therein shall be deemed
to be preempted and/or superseded by the provisions of any subsequent provision offederal or State
law.
(B)In addition to the procedures set forth in said Section 626(a), the City agrees to
notify Grantee of the completion of its assessments regarding the identification of future cable-
related community needs and interests, as well as the past performance of Grantee under the then
current Franchise term. Notwithstanding anythingto the contrary set forth herein,Grantee and the
City agree that at any time during the term ofthe then current Franchise, while affording the public
adequate notice and opportunity for comment, the City and Grantee may agree to undertake and
finalize negotiations regarding renewal of the then current Franchise and the City may grant a
renewal thereof. Grantee and the City consider the terms set forth in this subsection to be consistent
with the express provisions ofSection 626 ofthe Cable Act.
SECTION 15.FRANCHISE TRANSFER
(A) 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 without the prior written consent of the City,which consent
shall not be unreasonably withheld.
(B)The Grantee shall promptly notify the City ofany actual or proposed change in, or
transfer of, or acquisition by any other party ofcontrol ofthe 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 the Grantee shall make this
Franchise subject to cancellation unless and until the City shall have consented thereto.
(C)The parties to the sale, transfer or change ofcontrol shall make a written request to
the City for its approval of a sale, transfer or change of control and shall furnish all information
required by law.
(D)In seeking the City's consent to any change in ownership or control, the proposed
transferee or controlling party shall indicate whether, as applicable, it:
(I)Has ever been convicted or held liable for acts involving deceit including
any violation of federal, State or local law or regulations, 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 ofcompetent jurisdiction;
39
•.L'•
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(3) Has pending any material legal claim, lawsuit, or administrative proceeding
arising out ofor involving a cable system;
(4) Is financially solvent, by submitting financial data, including financial
statements, that are audited by an independent certified public accountant, along with any
other data that the City may reasonably require; and
(5) Has the legal, financial and technical capability to enable it to maintain and
operate the Cable System for the remainingterm ofthe Franchise.
(E)In reviewing a request for sale, transfer or change of control, 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 sale,
transfer or change of control upon such terms and conditions as it deems reasonably appropriate,
provided,however,any such terms and conditionsso 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 ofthe Cable System,ifany
changes are necessary to cure any violations or defaults presently in effector ongoing.
(F)The City shall act by ordinance or resolution on the request within one hundred
twenty (120) days ofthe request,provided ithas received all information required by law, such as a
complete 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 oftime.
(G) Within thirty (30) days of any transfer, sale or change of control,if approved or
deemed granted by the City,Grantee shall file with the City a copy ofthe 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 transfereeor new controlling entity.In the case ofa sale or
transfer of ownership or change ofcontrol, the transferee or the new controlling entity shall file its
written acceptance agreeing to be bound by all of the provisions of this Franchise, subject to
applicable law.In the event ofa change in control, in which the Grantee is not replaced by another
entity, the Grantee will continue to be bound by all of the provisions of the Franchise and will not
be required to file an additional written acceptance.
(H)Notwithstanding anything to thecontrary in this subsection, the prior approval ofthe
City shall not be required for any sale, assignment or transfer ofthe Franchise or Cable System to
an intra-company Affiliate;provided that the proposed assignee or transferee must show legal,
technical and financial responsibility as maybe determined necessaryby the City and must agree in
writing to comply with all of the provisions of the Franchise, subject to applicable law. Further,
Grantee may pledge the assets ofthe CableSystemfor the purpose offinancing 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 ofits obligations under theprovisions ofthis Franchise.
SECTION 16.MISCELLANEOUS PROVISIONS
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16.1 Discriminatory Practices Prohibited
Throughout the term of this Franchise, Grantee shall fully comply with all equal employment and
nondiscrimination provisions and requirements of federal, State and local laws, and rules and
regulations relating thereto.
16.2 Local Employment Efforts
Grantee shall use reasonable efforts to utilize qualified local contractors, including minority
business enterprises and woman business enterprises,whenever the Grantee employs contractors to
perform work under this Franchise.
. 16.3 Notices
Throughout the term of this Franchise, each party shall maintain and file with the other a local
address for the service ofnotices by mail. All notices shall be sent to such respective address, and
such notices shall be effective upon the date ofmailing. At the effective date ofthis Franchise:
Grantee's address shall be:
WaveDivision I, LLC
115 South Maple Avenue
POBox 1630
LaConner, WA 98257
Attention: General Manager
With a copyto:
Wave Broadband
401 Kirkland Parkplace, Suite 410
Kirkland, WA 98033
Attention: Steve Weed and Jim Penney
City's addressshallbe:
City ofMarysville
1049 State Avenue
Marysville,Washington 98270
Attention: City Attorney
16.4 Cumulative Rights
Subject to applicable law, all rights and remedies given to the City by this Franchise or retained by
the City herein 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, at law or in equity.
16.5 Costs to be Borne by Grantee
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Grantee shall reimburse the City for all costs ofpublication ofthis Franchise, and any notices prior
to any public hearing regarding this Franchise, contemporaneous with its acceptance of this
Franchise. Grantee agrees that the additional commitments herein are not Franchise Fees,nor are
they to be offset or credited against any Franchise Feepayments due to the City.
16.6 Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted successors and assigns.
16.7 Authority to Amend
In addition to certain mandatory amendment provisions ofSection 3.9, this Franchise may also be
amended at any time by mutual written agreement between the parties.
16.8 .Venue
Venue for any dispute related to this Franchise shall be in Snohomish County Superior Court in
Everett, Washington.
16.9 Governing Laws
This Franchise shall be governed, construed and enforced in accordance with the laws ofthe State
of Washington (as amended), the Cable Act as amended, any applicable rules,regulations and
orders of the FCC, and any other applicable local, State and federal laws, rules, regulations,
legislation or orders (as such now exist, arelater amended or subsequentlyadopted).
16.10 Guarantee
The performance of the Grantee shall be guaranteed in all respects by WaveDivision Holdings,
LLC. A signed guarantee shall be filed with the City contemporaneous with Grantee's acceptance
ofthis Franchise.
16.11 Captions
The captions and headings ofthis Franchise are for convenience and reference purposes only and
shall not affect in any way the meaning or interpretation ofany provision ofthis Franchise.
16.12 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 anymanner which would indicate anysuch relationship with the other.
16.13 Waiver
The failure of the City at any time to require performance by Grantee of any provision hereofshall
in no way affect the right ofthe City hereafter to enforce the same, nor shall the waiver by the City
of any breach ofany provision hereofbe taken or held to be a waiver of any succeeding breach of
such provision, or as a waiver oftheprovision itselfor any other provision.
16.14 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
42
shallhave no effect on the validity ofany other Section, subsection, paragraph or provision ofthis
Franchise, all ofwhich will remain in full forceand effect for the term ofthe Franchise.
16.15 Entire Agreement
This Franchise represents the entire understanding and agreement between the parties hereto with
respect to the subject matter hereofand supersedes all prior oral and written negotiations between
the parties.
16.16 Force Majeure
In the event Grantee is prevented or delayed in the performance ofany ofits obligations under this
Franchise by a reason beyond the control of Grantee, Grantee shall have a reasonable time, under
the circumstances, to perform the affected obligation under this Franchise or to procure a substitute
for such obligation which is satisfactory to the City.Those conditions which are not within the
control of Grantee include, but are not limited to, natural disasters, civil disturbances,power
outages, telephone network.outages, severe or unusual weather conditions which have a direct and
substantial impact on the Grantee's ability to provide Cable Services in the Franchise Area and
which could not have been avoided by the Grantee which used its best efforts in its operations to
avoid such problems, work delays caused by waiting for utility providers to service or perform
make-ready services on their utility poles or other facilities to which the Grantee's Cable System is
attached, and Grantee's inability to obtain federal, State or railroad permits despite Grantee's best
efforts to do so.
IfGrantee believesthat a reason beyond its controlhas prevented or delayed its compliance with the
provisions of this Franchise, Grantee shall provide documentation as reasonably required by the
City to substantiate the Grantee's claim.IfGrantee has not yet cured the deficiency,Grantee shall
also provide the City with its proposed plan for remediation,including the timing for such cure.
16.17 Attorneys'Fees
If any action or suit arises in connection with this Franchise, the prevailing or substantially
prevailing party (either the City or Grantee, as the case may be) shall be entitled to recover all ofits
reasonable attorneys' fees, costs and expenses in connection therewith, in addition to such other
reliefas the courtmay deem proper.
16.18 Actions of the City or Grantee
In any action by the City or Grantee mandated or permitted under the terms hereof, it shall act in a
reasonable, expeditious and timely manner. Furthermore, in any instance where approval or
consent is required under the terms hereof, such approval or consent shall not be unreasonably
withheld.
16.19 Acceptance
Within forty-five (45) days after the passage and approval of this Franchise by Ordinance by the
City Council, this Franchise shall be accepted by Grantee by filing with the City Clerk an
unconditional, written acceptance of all of the terms and conditions of this Franchise.Failure of
Grantee to file such an acceptance shall be deemed a rejection by Grantee, and this Franchise shall
be voidable at the discretion ofthe City.
43
,
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PASSED by the City Council and APPROVED by the Mayor this Ut"day of
July, 2006.
CITY OF MARYSVILLE
By
DENNIS KENDALL,Mayor
ATTEST:
APPROVED AS TO FORM
~tJARD
GRANT K.WEED,City Attorney
Accepted and approved this ~"day Of.SlEf'iEMBfIj.2006.
WaveDivision I,LLC
44
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