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HomeMy WebLinkAbout3304 Ordinance - Franchise - TCI of Northern New Jersey dba TCI of WashingtonORDINANCE NO.3,--Lk AN ORDINANCE OF THE CITY OF PASCO, WASHINGTON, RELATED TO CABLE TELEVISION, REPEALING CITY OF PASCO ORDINANCE NO. 2428 AND RESOLUTIONS NOS. 1563 AND 1561, GRANTING A NON- EXCLUSIVE CABLE TELEVISION FRANCHISE TO TCI OF NORTHERN NEW JERSEY, INC. D/B/A TCI OF WASHINGTON, AND FIXING A DATE WHEN THE SAME SHALL BECOME EFFECTIVE. WHEREAS, the City of Pasco regulates cable television systems pursuant to the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1997, the Telecommunications Act of 1996, and other subsequent amendments, and WHEREAS, the City adopted Ordinance No 2428 and Resolution Nos 1563 and 1561, regulating the provision of cable television services within the City and providing specific requirements for non-exclusive cable television franchises, and WHEREAS, Congress and the Federal Communication Commission have modified and amended the statutes and regulations applicable to cable television services since the adoption of these ordinances by the City, and WHEREAS, the City's current cable television franchise with TCI of Washington expires in 1998, and WHEREAS, the City desires to update it's ordinances related to cable television to reflect recent changes in federal statutes and regulations, and WHEREAS, the City desires to enter into a new franchise with TCI of Washington for the provision of cable television within the City, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO ORDAIN AS FOLLOWS Section 1 Ordinance No 2428 and Resolution Nos 1563 and 1561 of the City of Pasco are hereby repealed Section 2 TCI of Washington is hereby granted a non-exclusive cable television franchise under the terms and conditions set forth below Article 1 General 1 1 Grant of Franchise 1 2 Purpose 1 3 Relationship to Other Laws 1 4 Definitions Article 2 Authority 2 1 General Franchise Characteristics 2 2 Franchise as a Contract 2 3 Conflicts 2 4 Subject Authority Article 3 Franchise Conditions 3 1 Franchise Term 3 2 Acceptance 3 3 Franchise Fee 3 4 Insurance, Bonds, Indemnity 3 5 Forfeiture and Termination 3 6 Foreclosure 3 7 Receivership 3 8 Purchase of Cable System by City 3 9 Removal of Cable Communications System 3 10 Transfer of Ownership or Control Article 4 Programming and Channel Capacity 4 1 Grantee Compliance 4 2 Maintenance of Existing Conditions 4 3 Expanded Programming and Channel Capacity 4 4 Obscenity 4 5 Parental Control Device and Channel Blocking Article 5 Subscriber Fees and Records 5 1 Subscriber Fees and Rates 5 2 Multiple Unit Buildings 5 3 Downgrade and Disconnect Charges 5 4 Reports 55 Records 5 6 Filings 5 7 Service Connections 5 8 External Franchising Costs Article 6 Public Access 6 1 Designated PEG Access Managers 6 2 Grantee's Obligations as Designated Access Manager 6 3 Government Access Services 6 4 Educational Access Services 65 PEG Channel Capacity 6 6 Expansion of Access Channels 6 7 Access Channels on Basic Tier 68 Technical Quality 6 9 Access and Local Programming Article 7 Standards 7 1 Introduction 72 System Capacity and Features 7 3 Closed Channels 74 Headend 7 5 Future System Improvement 7 6 Emergency Alert System 7 7 Leased Access 7 8 Public Drops 79 Standby Power Article 8 General System Requirements 8 1 Introduction 8 2 Cable System Rebuild Schedule 8 3 Component and System Tests 8 4 Service Cutover Process Article 9 System Construction, Installation, and Maintenance 9 1 Construction and Maintenance Standards 9 2 Construction and Installation Work 9 3 Location of Structures, Lines and Equipment 9 4 Replacement of Paving 9 5 Moving of Buildings 9 6 Trimming Trees 9 7 Network Monitoring and Repair 9 8 Spare Parts 9 9 Delays in Construction 9 10 Repair of Damages Article 10 System Construction and Installation 10 1 Line and Service Extension 10 2 Provision of Service 10 3 Refunds and Service Terminations 10 4 Service Area 10 5 Protection of Privacy 106 Continuity of Service 10 7 Transitional Operation 108 Equal Opportunity Employment 10 9 Additional Consumer Protection 10 10 General Provisions Article 1. General Section 11 Grant of Franchise The City of Pasco hereby grants to TCI of Northern New Jersey, Inc dba TCI of Washington, a corporation licensed to do business within the State of Washington and having its principal place of business at 639 N Kellogg, Kennewick, Washington, 99336, a non-exclusive franchise to install, construct, operate, and maintain a Cable System to provide Cable Services under such terms and conditions that are set forth herein Section 1 2 Purpose The purposes of this Franchise are to A Provide for the regulation of Cable Communications Services within the City of Pasco, B Provide for a Cable Communications System that will meet the current needs of the City and that can be improved and upgraded to meet future needs, C Provide for the payment of fees and other valuable consideration to the City for the use of the Public Ways and for the privilege to construct and operate Cable Communications Systems, D Provide for the regulation by the City of certain rates to be charged to Subscribers for certain Cable Communications services, E Provide for the development of cable communications as a means to improve communication between and among the members of the public and public institutions of the City, and F Provide remedies and prescribe penalties for violation of this Franchise -4- Section 1 3 Relationship to Other Laws A This Franchise is subject to all applicable City codes and ordinances, including the City Charter, and all applicable federal statutes and regulations, including, but not limited to the Communications Act of 1934, as amended by the Cable Consumer Protection Act of 1984, the Cable Communications Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996 The material terms and conditions contained in this Franchise shall not be altered unilaterally by the City through modification of any City code, ordinance, rule, regulation, resolution, or other enactment of the City, except as may be permitted in the lawful exercise of the City's police powers Unless expressly stated herein, nothing in this Franchise shall alter any requirements of the existing codes and ordinances of the City, including those relating to pole attachment, street use permits, fees, taxes, or construction requirements or schedules B It is the intent of both parties that each party shall enjoy all rights and be subject to all obligations of this Franchise for the entire term of the Franchise and, to the extent any provisions have continuing effect, after its expiration However, both parties recognize that the technology of cable television and related technologies are in a state of flux and that regulatory conditions and franchise rights and powers may change drastically during the term of this Franchise Should such changes occur, the City and the Grantee shall negotiate in good faith to amend this Franchise to preserve the rights and obligations of the City and the Franchise hereunder to the fullest extent consistent with such changes The parties agree that the perpetuation of the substantial equivalent of the current statutory and regulatory structure governing cable television is not a condition of this contract or a fundamental assumption that either party is making and entering into it, provided, however, nothing herein shall prevent either the City or the Grantee from asserting that any part or parts of this Franchise are preempted by state or federal laws as a result of such changes Section 1 4 Definitions For the purpose 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 number include the singular number, and words in the singular number include the plural number The word "shall" is mandatory and the word "may" is permissive Words not defined shall be given their common and ordinary meanings I "Access" means the right of certain agencies, institutions, organizations, groups and individuals in the community, including the City and its designees, consistent with applicable federal law and on a non- discriminatory basis, to use the cable system for specific non-commercial purposes including the right to acquire programming, to create programming -5- free from outside control including that of the Grantee, and to distribute and receive programming over the cable system 2 "Access Channel" means any Channel set aside for public, educational, or governmental use without a Channel usage charge 3 "Access User" means any person or entity entitled to make use of an Access Channel consistent with the intended purpose of the Channel 4 "Basic Service" means subscriber Cable Television Services which includes the delivery of local television Broadcast Signals as required by federal law and Public, Educational, and Governmental (PEG) access channels 5 "Broadcast Signal" means a television or radio signal transmitted over the air to a wide geographic audience, and received by a Cable System off-the-air by any means 6 "Cable Communications 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 Television Service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include a A facility or combination of facilities that serves only to retransmit the television signals of one or more television broadcast stations, b A facility that serves subscribers without using any public right-of-way, c A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services, d An open video system that complies with 47 USC § 573, or e Any facilities of any electric utility used solely for operating its electric utility system -6- 7 "Cable Television Services" or "Cable Services" means the one way transmission to subscribers of Video Programming, or other Programming service, and Subscriber interaction, if any, which is required for the selection or use of such Video Programming or other Programming service For the purposes of this definition "Video Programming" is Programming provided by, or generally considered comparable to Programming provided by, a television broadcast station, and "other Programming service" is information that a cable operator makes available to all Subscribers generally 8 "Channel" means a radio frequency band capable of carrying combinations of video, audio, digital, or other non-video signal, regardless of whether the signal is in a digitally compressed or analog format 9 "City" is the City of Pasco, Washington 10 "Closed channels" are upstream or downstream channels that are not available for receipt by subscribers without special equipment or authorization 11 "Connection" means the attachment of the drop to the radio or television set or other communications device of the subscriber 12 "Construction " The terms "construction is completed," "construction has been completed," and "construction shall be completed" mean that strand has been put up and all necessary cable (including trunk and feeder cable) has been lashed or, for underground construction, that all cable has been laid and trenches refilled, all road surfaces restored and, except as prevented by weather conditions or delayed because of seasons, landscaping restored, that all amplified housing and modules have been installed (including modules for return path signals if proposed), that power supplies have been installed and all bonding and grounding has been completed, that all necessary connectors, splitters and taps have been installed, that construction of the headends or hubs has been completed and all necessary processing equipment has been installed, and that any and all other construction necessary for the system to be ready to deliver cable service to subscribers in a safe and reliable manner has been completed consistent with the terms of the Franchise and industry standards It is expected that segments of less than the entire system will be activated and proofed when completed "Completion of construction" does not include marketing and installation of subscriber service 13 "Converter" means an electronic tuning device which converts transmitted signals to a frequency which permits their reception on an ordinary television receiver 14 "Council" means the City Council of the City of Pasco -7- 15 "Dedication" means those dedications and easements for public roadway and public utilities and other rights-of-way maintained for the benefit of the public and controlled by the City, the terms, conditions, or limitations of which are not inconsistent with the erection, construction, or maintenance of a Cable Television System, its structures, or equipment 16 "Demarcation point" means the physical point at which the Cable System enters the Subscribers' home or building 17 "Designated access managers" means the entity or entities designated by the City under Section 6 1 18 "Document" or "Records" means written or graphic materials, however, produced or reproduced, or any other tangible permanent record, including records maintained by computer or other electronic or digital means, maintained by the Franchise in the ordinary course of conducting its business 19 "Downgrade charges" means any charge, rate, or financial liability imposed upon a Subscriber for implementing a request for a change or reduction of cable services to less than current services or tiers 20 "Downstream channel" means a Channel capable of carrying a transmission from a headend to other points on a Cable System, including Interconnection points 21 "Drop" means the cable that connects a subscriber's premises to the nearest feeder line of the cable communications system 22 "Easement" means a right to use all Public Rights-of-Ways including public utility easements 23 "Educational Access" means Access for Schools, as said term is further defined herein 24 "Educational consortium" means a defined group of representatives of Schools 25 "Feeder line" means the coaxial or fiber optic cable running from the trunk line to line extenders and taps for the purpose of providing Cable Service to individual Subscribers 26 "FCC" means the Federal Communications Commission or any legally appointed or designated agent or successor -8- 27 "File" means the delivery, by mail or otherwise, to the appropriate office, officer or agent of the City of any document or other thing which this Franchise requires the Grantee to file with the City The date of receipt by the City shall be considered the file date Unless specified to the contrary, the filing shall be with the City Clerk 28 "Franchise" means the nonexclusive right and authority to construct, maintain, and operate a Cable System through use of the Public Streets, Dedications, public utility easements, other Public Rights-of-Way, or public places in the City pursuant to a contractual agreement executed by the City and the Grantee 29 "Government Access" means Access for governmental entities or their designees 30 "Grantee" refers to TCI of Northern New Jersey, Inc 31 "Gross Revenues" mean all revenue derived by the Grantee or any other person or affiliate of the Grantee that would constitute an operator of the cable system under the Cable Act derived from the provision of Cable Services within the City, including, but not limited to, basic service monthly fees, expanded basic monthly service fees, premium and tiered service fees, installation and reconnection fees, leased Channel fees, converter rentals, advertising sales revenues, and copyright fees, provided, however, that this shall not include bad debt or any taxes on services furnished by the Grantee payable to the State of Washington or any other governmental unit and collected by the Grantee on behalf of the governmental unit, or any revenues from the provision of Cable Communications Services outside the City, or any revenues from sale of capital assets or lease of property for purposes unrelated to cable communications 32 "Headend" means a facility for signal reception and/or dissemination on the Cable System including all related equipment such as cable, antennas, wires, satellite dishes, monitors, switchers, modulators, computers, software, and processors for television Broadcast signals 33 "Initial" or "Initially" means as of the effective date of this Franchise 34 "Installation" means the connection of the system at the Subscriber's premises 35 "Interconnect," "Interconnected," or "Interconnection" means the provision of an electronic linkage between the Grantee's Cable System any other designated Cable System for the purpose of transmitting PEG Access channels and I-Net signals to and from the Interconnected cable systems -9- 36 "Leased Channel" or "Leased Access Channel" means any Channel, or part of a Channel, available for commercial use on a fee basis by persons or entities other than a Grantee 37 "Person" means an individual or legal entity, such as a partnership, association, joint stock company, trust, corporation, or governmental entity 38 "Premium Service" means pay television offered on a per Channel or per program basis 39 "Programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station 40 "Public Access" means Access for the public, including organizations, groups, and individuals 41 "Public way," "Public Right-of-Way," or "Street" means the surface of and the space above and below any Public Street, road, highway, path, sidewalk, alley, court, or easement now or hereafter held by the City for the purpose of public travel or public utilities and shall include public easements or Rights-of-Way 42 "Rebuild" means to upgrade the Cable System in accordance with Article 9 hereof 43 "School" means any public educational institution and credited by the State of Washington, including primary and secondary schools (K-12), colleges, and universities 44 "Service Interruption" means any loss of any element of programming on any part of the Cable System 45 "Service Tier" means a specific set of cable subscriber services which are made available as, and only as, a group for purchase by Subscribers at a separate rate for the group 46 "Subscriber" means a lawful recipient of Cable Service or other services provided over a Cable System 47 "Tn-Cities Area" means the areas within Benton and Franklin Counties, Washington -10 - 48 "Upgrade" means an improvement in any technical aspect of the Cable System 49 "Upstream Channel" means a Channel capable of carrying a transmission to a Headend from any other point on the Cable System, including, Interconnection points 50 "User" means a party utilizing a Cable System's facilities for purposes of production or transmission of material or information to Subscribers Article 2. Authority Section 2 1 General Franchise Characteristics This Franchise shall A Authorize use of the Public Ways for installing cables, wires, lines, and other facilities in order to operate a Cable System, but shall neither expressly or impliedly be deemed to authorize the Grantee to provide service to, or install cables, wires, lines, or any other equipment or facilities upon, private property without the owner's consent, or to utilize publicly or privately owned utility poles or conduits without a separate agreement with the owners thereof, B Be nonexclusive, and shall neither expressly nor impliedly be deemed to preclude the issuance of subsequent franchises to operate other Cable Systems within the City or the ownership or operation of a Cable System by the City, and C Convey no property right or right to renewal to the Grantee Section 2 2 Franchise as a Contract This Franchise shall be deemed to constitute a contract between the Grantee and the City The Grantee shall be deemed to have contractually committed itself to comply with the terms, conditions and provisions of the franchise documents, and with all written rules, orders, regulations, and determinations applicable to the Franchise which are lawfully issued, promulgated or made pursuant to the provisions of this Franchise Section 2 3 Conflicts A All terms, conditions and provisions of this Franchise and the application for a franchise shall be deemed to be embodied herein In the event that a conflict between the application and this Franchise exists, the express terms of this Franchise shall prevail over conflicting or inconsistent provisions of the application B The provisions of this Franchise shall be liberally construed in order to effectuate its purposes and objectives consistent with public interest This Franchise agreement will be construed under the laws of the State of Washington Section 2 4 Sublect Authority The Grantee shall, at all times during the life of this Franchise, be subject to all lawful exercise of the police power by the City and to such lawful regulations as the City shall hereafter enact The construction, operation and maintenance of the System shall also be in full compliance with all other applicable rules and regulations now in effect or hereafter adopted by the United States, the State of Washington, or any agency of said governments Article 3. Franchise Conditions Section 3 1 Franchise Term A Initial Term The term of this Franchise shall be five (5) year B Extension This Franchise may also be extended based upon Grantee System improvements as provided in Section 7 5 C Renewal If the Grantee seeks authority to operate a Cable System in the City beyond the term of this Franchise, it shall file an application for franchise renewal not later than 30 months prior to the expiration of this Franchise, in accordance with Section 626 of the Cable Act, 47 USC § 546 Section 3 2 Acceptance A This Franchise and its terms and conditions shall be accepted by the Grantee by written instrument, in a form acceptable to the City Attorney, and filed with the City within 30 days after the granting of this Franchise In its acceptance, the Grantee shall declare that it has carefully read the terms and conditions of this Franchise and unconditionally accepts all of the terms and conditions of this Franchise and agrees to abide by same In accepting this Franchise, the Grantee shall indicate that it has relied upon its own investigation of all relevant facts, that it was not induced to accept the Franchise, and that it accepts all reasonable risks related to the interpretation of the Franchise B This Franchise shall not take effect until the applicant pays a grant fee of $1,000 00 to the City for the costs associated with the publication of this Franchise -12- Section 3 3 Franchise Fee A The Grantee, in consideration of the privilege for the use of Public Ways and the privilege to construct and operate a Cable System, shall pay to the City a franchise fee in an amount not greater than five percent (5%) of its annual Gross Revenues, as defined herein, during the period of its operation under this Franchise and such periods of time that the Grantee is operating without a franchise Initially, the franchise fee shall be five percent (5%), subject to the City's right to reduce said amount with reasonable notice to the Grantee B The Grantee shall file with the City, by the end of each calendar quarter, a financial statement showing the Gross Revenues received by Grantee during the preceding calendar quarter The Grantee shall pay the quarterly portion of the Franchise fee to the City on or before the time such financial statement is due to be filed The Grantee shall also file, no later than June 1st of each year, a statement of Gross Revenues for the preceding year, certified by an officer of the Grantee Any franchise fee payment in adjustment for any shortfall of the total quarterly payments for the year shall be made at that time Adjustments for any overpayment shall be by credit to subsequent quarterly payments C The City shall have the right, consistent with the provisions of Section 5 5 herein, to conduct an audit of Grantee's Gross Revenues to determine if proper payments have been made to the City The cost of such audit shall be borne by Grantee if the same results in increasing the Grantee's annual payment to the City by two percent (2%) or more D In the event that any franchise fee payment is not received by the City on or before the applicable dates, interest shall be charged from such due date at the rate of twelve percent (12%) per year E In the event this Franchise is revoked or otherwise terminated prior to its expiration date, the Grantee shall file with the City, within 90 days of the date of revocation or termination, an audited financial statement showing the Gross Revenues received by the Grantee since the end of the previous year and shall make adjustments at that time for the franchise fees due up to the date of revocation or termination F Nothing in this Franchise shall limit the City's authority to lawfully tax the Grantee -13- 3 4 Insurance, Bonds, Indemnity A Insurance During the term of this Franchise, and any time the Grantee is operating a Cable System within the City without a franchise, the Grantee shall maintain in full force and effect, at its own cost and expense, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Grantee, its agents, representatives, employees, or subcontractors The Grantee shall provide a certificate of insurance naming the City, its officials, boards, commissions, agents, and/or employees as additional insureds evidencing 1 Automobile liability insurance with limits no less than $1,000,000 00 combined single limit per accident for bodily injury and property damage, 2 Commercial general liability insurance written on an occurrence basis with limits no less than $1,000,000 00 per occurrence and $2,000,000 00 general aggregate for personal injury, bodily injury, and property damage Coverage shall include but not be limited to blanket contractual, products/completed operation, broad form property damage, explosion, collapse and underground (XCU) if applicable, and employer's liability, and 3 Excess liability insurance with limits no less than $5,000,000 00 per occurrence and $5,000,000 00 aggregate limit The Grantee's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability The Grantee's insurance shall be primary insurance with respect to the City, and any insurance maintained by the City shall not contribute with it The City reserves the right to receive a certified copy of all required insurance policies The Grantee shall file the certificate of insurance required by this Section with the City upon acceptance of this Franchise The insurance policy and certificate shall contain a provision stating that it may not be cancelled, suspended, or reduced in coverage without 30 days advance written notice to the City In the event that the policy is cancelled, suspended, or reduced in coverage, the Grantee shall provide a replacement certificate evidencing the insurance coverage required by this Section at least fifteen (15) days prior to the cancellation, suspension, or reduction in coverage of the existing policy -14- B Performance Bonds and Other Surety Except as expressly provided herein, the Grantee shall not be required to obtain or maintain a performance bond or other surety as a condition of being awarded this Franchise or continuing its existence within the City The City acknowledges that the legal, financial, and technical qualifications of the Grantee are sufficient to assure compliance with the terms, conditions, and covenants of this Franchise The Grantee and the City recognize that the costs associated with performance bonds and other surety may ultimately be borne by the Subscribers in the form of increased rates for services In order to minimize such costs, the City agrees to require performance bonds and other surety only in such amounts and during such times as there is a reasonably demonstrated need therefore The City agrees that in no event, however, shall it require a performance bond or other related surety in an aggregate amount other than $250,000 00, conditioned upon the substantial performance of the material terms, conditions, and covenants of this Franchise Initially, no performance bond or other surety shall be required In the event that a performance bond or other surety is required in the future, the City shall give the Grantee at least 60 days pnor written notice thereof stating the reasons for the requirement C If the Grantee undertakes any construction with regard to the Cable System, the Grantee shall maintain, at its sole cost and expense, a corporate surety bond for the construction issued by a surety company authorized to do business in the state of Washington and acceptable to the City The construction bond shall assure the City of recovery of any and all damages, losses, costs, and expenses sustained or suffered by the City as a result of the Grantee's construction of the Cable System or the failure of franchisee to satisfactorily and timely complete its planned construction In no event shall the amount of the construction bond be construed to limit any liability of the Grantee The amount of the construction bond shall be one hundred percent (100%) of the estimated cost of the planned construction Nothing contained herein shall prevent the Grantee from furnishing a construction bond for individual and discrete phases of a system-wide upgrade or rebuild In the event that there is a dispute over the estimated cost of the planned construction, the City's estimate shall be final and binding for purposes of this Subsection The construction bond shall contain the following endorsement "It is hereby understood and agreed that this bond shall not be canceled by the surety, nor the intention not to renew be stated by the surety, until 60 days after receipt by the City, by registered mail, of a written notice of such intent to cancel or not to renew" D All bonds and insurance certificates called for herein shall be in a form satisfactory to the City Attorney The City may at any time, if it reasonably deems itself insecure, require the Grantee to provide additional -15- sureties to any and all bonds or to replace existing bonds with new bonds with good and sufficient surety approved by the City The City may also increase the required insurance coverage to reflect changing liability limits No bond or insurance policy shall be cancelable during its term E Indemnification The Grantee shall, at its sole cost and expense, indemnify, defend, and hold harmless the City, its officials, boards, commissions, agents and employees against any and all claims, suits, causes of action, proceedings, and judgments for damage arising out of the operation and construction of the Cable System under this Franchise, except that no such requirement shall apply where such claims, suits, causes of actions, proceedings, and judgments for damage are occasioned solely by the negligence, gross negligence or intentional acts of the City or its officials, boards, commissions, agents and employees while acting on behalf of the City These damages shall include, but not be limited to, claims made against the City by the Grantee's employees from which the Grantee would otherwise be immune under Title 51 RCW, penalties arising out of copyright infringements, and damages arising out of any failure by the Grantee to secure consent from the owners, authorized distributors or licensees of programs to be delivered by the Grantee's Cable System whether or not any act or omission complained of is authorized, allowed, or prohibited by this Franchise Provided that the City has given Grantee prompt notice of a claim subject to this Section and an opportunity to tender a defense, indemnified expenses shall include, but not be limited to (1) reasonably incurred out-of- pocket expenses, (2) reasonably incurred costs and attorneys fees, (3) reasonably necessary services rendered by the City Attorney or his or her assistants, (4) reasonably necessary services provided by any employee of the City, and, (5) the amount of any settlement or award of damages for personal injury, death, or property damage to any person for which the Grantee is required to indemnify the City pursuant to this Section In the event that Grantee fails to promptly tender a defense after notice by the City, Grantee shall, in addition to any judgment, award, or settlement, be responsible for all costs, expenses, expenses, and attorneys' fees reasonably incurred by the City in defending itself, including such costs, expenses, and attorneys as may be reasonably incurred collecting said amounts from Grantee The indemnification provisions of this Subsection have been mutually negotiated by the parties hereto E The Grantee shall not permit any insurance policy or bond to expire and the Grantee, not less than 30 days prior to its expiration, shall deliver to the City a substitute, renewal or replacement policy or bond in conformance with the provisions of this Franchise -16- Section 3 5 Forfeiture and Termination A In addition to all other rights and powers retained by the City under this Franchise, the Council reserves the right to forfeit and terminate this Franchise and all rights and privileges conferred hereunder in the event of a substantial violation or breach of its terms and conditions A substantial violation or breach by the Grantee shall include, but shall not be limited to, the following 1 An uncured violation of any material provision of this Franchise issued thereunder, or any material rule, order, regulation, or determination of the City made pursuant to its lawful power to protect the public health, safety and welfare, 2 An attempt to evade any material provision of this Franchise or practice of any fraud or deceit upon the Cable System customers and Subscribers or upon the City, 3 Failure to begin or substantially complete any Cable System construction or Cable System extension as set forth in the franchise, 4 Failure to provide the services specified in this Franchise, or a reasonable substitute therefor, 5 Failure to restore service after 10 consecutive days of interrupted service, except when approval of such interruption is obtained from the City, 6 Material misrepresentation of fact dunng negotiations relating to this Franchise, 7 A continuous and willful pattern of inadequate service and response to Subscriber complaints, or 8 Failure to provide the insurance, construction bond, or indemnity as required by this Franchise B None of the foregoing shall constitute a substantial violation or breach if a violation or breach occurs which is without fault of the Grantee or occurs as a result of circumstances beyond the Grantee's control The Grantee shall not be excused by economic hardship nor by nonfeasance or malfeasance of its directors, officers, agents or employees, provided, however, that damage to equipment causing service interruption shall be deemed to be the result of circumstances beyond the Grantee's control if it is caused by any negligent act or unintended omission of its employees (assuming proper training) or agents (assuming reasonable diligence in their -17- selection), or sabotage or vandalism or malicious mischief by its employees or agents The Grantee shall bear the burden of proof in establishing the existence of such conditions C The City may make a written demand by certified mail that the Grantee comply with any provision, rule, order, or determination under or pursuant to this Franchise If the violation or breach by the Grantee continues for a period of 30 days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the Council may consider terminating the Franchise, provided that 1 A written notice thereof shall be given to the Grantee at least 15 days in advance of any meeting at which the Council may consider the termination of the Franchise, and 2 The Grantee must be given an opportunity to appear before the Council in a public hearing to present its arguments, including the opportunity to offer evidence and question witnesses A transcript or recording shall be made of such hearing Based on the evidence of such hearing, the Council shall determine whether to terminate the Franchise and shall issue a written opinion stating the reasons for its decision D Should the Council determine, following the public hearing, that the violation or breach by the Grantee was the fault of the Grantee and within the Grantee's control, the Council may, by resolution, declare that the Franchise be forfeited and terminated, provided, however, the Council may, in its discretion, provide an opportunity for the Grantee to remedy the violation or breach and come into compliance with the Franchise so as to avoid the termination Provided, however, that the Grantee may seek judicial review of such determinations in a court of competent jurisdiction in accordance with applicable state and federal law and the terms of this Franchise Section 3 6 Foreclosure Upon the foreclosure or other judicial sale of all or a substantial part of the Cable System facilities, or upon the termination of any lease covering all or a substantial part of the Cable System, or upon the occasion of additional events which effectively cause termination of the system's operation, the Grantee shall notify the City of such fact, and such notification or the occurrence of such terminating events shall be treated as a notification that a change in control of the Grantee has taken place, and the provisions of this Franchise governing the consent of the City to such change in control of the Grantee shall apply Section 3 7 Receivership -18- A The City shall have the right to cancel this Franchise 120 days after the appointment of a receiver, or trustee, to take over and conduct the business of the Grantee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of the 120 days, or unless 1 Within 120 days after the election or appointment, such receiver or trustee shall have fully complied with all of the provisions of this franchise and remedied any defaults thereunder, and 2 Within the 120 days, such receiver or trustee shall have executed an agreement, duly approved by the court having jurisdiction, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this franchise except where expressly prohibited by Washington law B The Grantee shall immediately notify the City in writing if it 1 Files a voluntary petition in bankruptcy, a voluntary petition to reorganize its business, or a voluntary petition to effect a plan or other arrangement with creditors, 2 Files an answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed pursuant to the Bankruptcy Code, as amended, or 3 Is adjudicated bankrupt, makes an assignment for the benefit of creditors, or applies for or consents to the appointment of any receiver or trustee of all or any part of its property including all or any part of its Cable System Section 3 8 Purchase of Cable System by City A In the event that this Franchise is lawfully terminated by the City or a renewal or extension of this Franchise is denied, the City shall have the right to acquire ownership of the Cable System or effectuate a transfer of ownership of the Cable System to a third party In the event of such acquisition or transfer, the price of Grantee's Cable System shall be determined pursuant to Section 627 of the Cable Act, 47 USC § 547 B In the event the parties are unable to agree upon a price pursuant to Subsection A of this Section, the price shall be fixed and determined by a disinterested professional appraiser The City and the Grantee shall each nominate one qualified, disinterested professional appraiser for the purpose of selecting an appraiser Within 14 days, the -19- appraisers so nominated shall jointly select a qualified, disinterested professional appraiser to evaluate the system The City and the Grantee shall have 14 days to file any reasonable objections to the appraiser so selected In the event that either party so objects, the nominated appraisers shall select a different appraiser If the Grantee fails to exercise its right to nominate an appraiser, the appraiser nominated by the City shall evaluate the system The appraiser thus selected shall file an appraisement of either the fair and reasonable market value of the business and property of the Grantee in the event of Franchise non-renewal, or the equitable price for the business and property in the event of Franchise revocation, as of the date of the exercise of this option The appraisement shall be filed within 60 days after the selection of the appraiser as aforesaid The appraisement shall be in writing and shall be filed with both the City and the Grantee The cost of the appraisal shall be borne equally by the City and the Grantee C Upon receiving a valuation by the appraiser pursuant to Subsection B of this Section, the City has the right, in its sole discretion, to decline purchasing the Cable System If the City chooses to purchase the Cable System, it shall do so upon payment in accord with the written report of the appraiser Decisions of the appraiser are binding and shall not be appealed by either party to any court, except that the Franchisee may litigate in a court of competent jurisdiction whether the individual is a qualified and disinterested appraiser D Upon exercise of the option to purchase and the payment of the purchase price by the City and its service of official notice of such action upon the Franchisee, the Franchisee shall immediately transfer to the City possession and title to all facilities and property, real and personal, of the Cable System, free from any and all liens and encumbrances not agreed to be assumed by the City, and the Franchisee shall execute such other instruments of conveyance to the City as shall be necessary for this purpose Section 3 9 Removal of Cable Communications System A At the expiration of the term if this Franchise, or upon its termination as provided herein, the Grantee shall forthwith, upon notice by the City, remove at its own expense all designated portions of the Cable System from all Streets and Public Ways within the City and shall restore the Streets and Public Ways to their former condition, provided, however, the Grantee shall have the right to sell its physical plant to a subsequent franchisee, subject to City approval, in which case the plant need not be removed If the Grantee fails to remove its facilities upon request, the City may perform the work at the Grantee's expense -20- B The Grantee and the City agree that in the case of a final determination of a lawful revocation of this Franchise, at the Grantee's request, which shall be made in its sole discretion, the Grantee shall be given a reasonable opportunity to effectuate a transfer of its Cable System to a qualified third party, subject to Section 3 10 hereof The City agrees that during such period of time, it shall authorize the Grantee to continue to operate its Cable System pursuant to the terms and conditions set forth in this Franchise Provided, however, that such period of time shall not exceed six (6) months from the effective date of such revocation If, at the end of that period of time, the Grantee is unsuccessful in procuring a qualified transferee or assignee of its Cable System, the Grantee and the City may avail themselves to any rights or remedies they may have pursuant to state or federal law or this Franchise Provided further, that the Grantee's continued operation of its Cable System during said six (6) month period shall not be construed to be a waiver or extinguishment of any rights of the City or the Grantee Section 3 10 Transfer of Ownership or Control A 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 or entity, other than an entity controlling, controlled by, or under common control with the Grantee without the prior consent of the Council, and then only under such conditions as may be reasonably required by the Council Such a transfer of control is not limited to major interest holders but includes actual working or de facto control by minor interest holders in whatever manner exercised Every change, transfer or acquisition of control of the Grantee shall make the Franchise subject to cancellation unless and until the City shall have consented Such consent shall not be unreasonably withheld B The Grantee shall promptly notify the City of any proposed change in control of the Grantee A formal application for approval of a proposed transfer of control shall be filed expeditiously and the Council shall render its formal decision within 120 days of receipt of said application by the City, unless the Grantee and the applicant shall agree in writing to an extension of said period The application shall include, among other things, a copy of any and all documents relating to the sale or transfer and any filings by any party to the transaction at any state or federal agency including, but not limited to, the FCC, the Department of Justice, the Federal Trade Commission, and the Securities and Exchange Commission An original and three copies of the text of the application shall be filed and additional copies as the City may request -21- C The proposed purchaser, transferee, or assignee must show financial responsibility as determined by the City and must agree to comply with all provisions of this Franchise, including any provisions which the City may amend or add prior to approval of the transfer D For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into all qualifications of the prospective controlling party, and the Grantee shall assist the City in any such inquiry The City may require any reasonable conditions which it deems necessary at the time of review to ensure that the Cable System will satisfy the public interest of the City and its citizens for the balance of the term of the Franchise E Nothing herein prevents a franchisee from financing construction or operation of a Cable System by pledging the system as collateral Article 4. Programming and Channel Capacity. Section 4 1 Grantee Compliance Grantee shall meet or exceed the Programming and Channel capacity requirements set forth in this Franchise Section 4 2 Maintenance of Existing Conditions A Subject to applicable federal law, the Grantee shall not delete or so limit as to effectively delete any broad category of Programming within its control for any group of Subscribers identified in Section 4 3 carried on the Grantee's Cable System as of the effective date of this Franchise B In the event of a modification proceeding under federal law, the mix in quality of service is provide by the Grantee on the effective date of this Franchise shall be deemed the mix in quality of services required under this Franchise throughout its term Section 4 3 Programming and Channel Capacity In addition to programming provided on PEG Channels and local off-air broadcast Channels, if any, the Grantee shall provide the broad categories of Programming as set forth in applicable federal law The requirements for each category of Programming may be satisfied by providing a separate Channel devoted substantially to the category or by Programming for more than one Channel for which in the aggregate totals the equivalent of one Channel devoted substantially to the category Section 4 4 Obscenity Subject to applicable federal law, the Grantee shall not transmit, or permit to be transmitted, over any Channel any programming which is obscene in the sense that the program is not protected speech -22- under the Constitution of the United States The Grantee shall adopt a written policy prohibiting obscene programming Section 4 5 Parental Control Device and Channel Blocking Within six (6) months of acceptance of this Franchise, Grantee shall, upon the request of Subscribers, make available, by sale or lease, a parental control or lock out device compatible with the Subscriber's equipment that will enable the Subscriber to block access to any or all channels that is obscene or indecent Grantee shall inform its Subscribers of the availability of the lock out device at the time of the original subscription and annually thereafter, and if requested by the Subscriber, shall provide the device at the time of the original installation Furthermore, the Grantee must, at the request of a Subscriber, be able to block out any premium, pay-per-view, or Public Access Channel (both audio and video), at no additional charge to the Subscriber The Grantee shall notify customers of the option to block out such Channels at the time of the original subscription and annually thereafter Article 5. Subscriber Fees and Records Section 5 1 Subscriber Fees and Rates A The initial fees to be charged to Subscribers for all services, including installation fees and other one time charges, shall be specified by the Grantee within 30 days after approval of this Franchise by the Council B Should the City notify the Grantee of its intent to regulate basic service tier rates as provided by federal law, those fees and charges subject to regulation by the City shall not be increased without prior approval of the City The City reserves the right to regulate rates for any service pursuant to federal or state law which authorize such regulation The City reserves the right to establish procedures for any lawful regulation of rates C Rates shall be just and reasonable, and shall not give any undue or unreasonable preference or advantage to any Subscriber or class of Subscribers D Rates and charges may be reduced at any time without prior City approval provided that the reductions do not result in rates which are unreasonably discriminatory to any Subscriber or class of Subscribers Where temporary reductions are put into effect for promotional purposes for a specified time period, the return to the permanent rates shall not be considered a rate increase for purpose of this Franchise E Rates and charges not subject to regulation by the City under state or federal law or regulation may be changed by the Grantee following a minimum 30 days prior written notice to the city and each subscriber -23- Section 5 2 Multiple Unit Buildings Grantee shall ensure that rates charged by Grantee to residents of multiple unit buildings shall not exceed the charges paid by residents of single family horiies Grantee may not condition provision of services to multiple unit buildings on any requirement not imposed on other Subscribers, except as expressly provided in this Franchise Grantee may not condition provision of services to multiple unit buildings on an exclusive use agreement with Grantee Grantee may offer a building owner the option of a long term agreement in return for installation of internal wiring or other telecommunications improvements unique to the building, but Grantee must offer the alternative of a no term agreement to building owners who wish to contract directly for installation by a contractor approved by Grantee and in accordance with Grantee's general applicable standards Section 5 3 Downgrade and Disconnect Charges Grantee may impose downgrade charges only if the Subscriber has been notified, at the time of initiating Cable Services, and annually thereafter, of the Grantee's downgrade charges Affected Subscribers shall have thirty (30) days after a retienng or increase in rates to downgrade their service without charge Section 5 4 Reports To facilitate timely and effective enforcement of this Franchise and to develop a record for purposes of determining whether to renew this Franchise, the City requires reports as specified in this Section A Annual Report No later than June 1st of each year, the Grantee shall file a written report with the City, which shall include 1 A summary of the previous calendar year's activities in development of the Cable System, including but not limited to services begun or dropped, number of Subscribers (including gains and losses), homes passed, and miles of cable distribution plant in service (including different classes if applicable) 2 A statement of Gross Revenues as required by Section 3 3(B), including a summary of franchise fee payments and any adjustments thereto The statement shall include notes that specify all significant accounting policies and practices upon which it is based (including, but not limited to, depreciation rates and methodology, overhead and intrasystem cost allocation methods, and basis for interest expense) A summary shall be provided comparing the current year with previous years since the beginning of the franchise 3 A current statement of cost of any phase of construction -24- 4 A summary of complaints, identifying the number and nature of complaints and their disposition 5 If the Grantee is a corporation, a list of officers and members of the board and the officers and board members of any parent corporation 6 A list of all partners or stockholders holding five percent (5%) or more ownership interest in the Grantee and any parent corporation, provided, however, that when any parent corporation has in excess of 1,000 shareholders and its shares are publicly traded on a national stock exchange, then a list of the 20 largest stockholders of the voting stock of such corporation shall be disclosed 7 A copy of all the Grantee's rules and regulations applicable to subscribers and users of the cable system B The City may specify the form and details of all reports, with the Grantee given an opportunity to comment in advance upon such forms and details The City may change the filing dates for reports upon reasonable request of the Grantee Section 5 5 Records The Grantee shall make available to the City a complete set of books and records, related to Grantee's Cable System in the City, within the Tn-Cities Area Upon reasonable notice to the Grantee, the City will have the right to inspect all records relating to the cable operations within the City at any time during normal business hours Section 5 6 Filings The Grantee shall, on a quarterly basis, mail or deliver a list of all filings related to this Franchise it makes with state and federal agencies to the City Clerk Consistent with Section 5 5, the City shall have the right to inspect and copy any such filings Section 5 7 Service Connections A Standard Installation - Unwired Dwelling Unit Standard installation of an unwired dwelling unit shall be installation of Cable Service to the subscribers dwelling unit located up to 125 feet from the Subscriber's property line B Standard Installation - Pre-wired Dwelling Unit Standard installation of a pre-wired dwelling unit shall be installation of Cable Service to the demarcation point located on the Subscriber's property up to 125 feet from the Subscriber's property line sufficient to receive Cable Services and where the pre-wired equipment will allow the Cable System to meet all FCC technical requirements -25- C Non-standard Installations Any installation of cable service that requires the installation of facilities from a point more than 125 feet from the Subscriber's property to (1) in the case of a pre-dwelling unit, the demarcation point, or (2) in the case of an unwired dwelling unit, a point not less than 12 inches from the exterior wall of the dwelling unit, or (3) any underground installation in an area where plant facilities are not underground, or (4) any installation calling for multiple outlets in a dwelling unit, shall be consider a non-standard installation D Rates and Charges Charges for standard installations may not exceed the Grantee's published rates Charges for non-standard installations shall not exceed the Grantee's published hourly service charge for non-standard transactions, and may be applied only to that portion of the installation defined as a non-standard installation in Subsection C above Section 5 8 External Franchising Costs The Grantee may pass through to its Subscribers such external costs as are allowed under the Cable Act and regulations promulgated thereunder However, the Grantee shall not proceed with any Franchise-required activity where the cost of such may be passed through to Subscribers externally unless it has first provided written notice to the City Such notice shall include an analysis (description of service and calculation methodology per Subscriber) of the financial impact of the activity to Subscribers The City, upon receiving such notice, shall consider waiving the Franchise requirement, and, if so waived, the Franchise shall be deemed amended If the City has not waived the requirement, or otherwise responded to the notice within sixty (60) days, the Grantee shall proceed with the required activity and may pass through the external costs in accordance with federal law Article 6. Public, Educational and Government Access Section 6 1 Designated PEG Access Managers The Grantee may name designated access managers for Public, Education, and Governmental Access Programming The designated access managers shall have sole responsibility for operating and managing their respective access facilities Section 6 2 Grantee's Obligations as Designated Access Manager A Public Access Facility and Equipment The Grantee shall provide and maintain a cable access studio, van, and all production equipment necessary for the production of color programming on video tape in the studio or at remote locations within the Tri-Cities Area, as well as live color programming Such equipment shall include a minimum of two color studio cameras, four color remote cameras, three video recorders, editing equipment, audio equipment, monitors, switcher, and character -26- generator/ tiller Equipment provided for access shall be low broadcast or high industrial standard and shall be maintained in good condition at all times Grantee shall repair and replace any damaged equipment and except for equipment damaged due to the neglect or improper use by an Access User, shall be responsible for the cost of such repair or replacement B Availability of Studio and Equipment The Grantee shall make the studio, van, and portable production equipment available to responsible to responsible citizens and community organizations for Public Access and local organization programming in accordance with a Grantee-developed and City-approved facility and equipment usage plan, and under provisions as set forth in this Franchise Terms and conditions for use of this studio, van, and/or production equipment shall be such to encourage Access use Such rules shall provide for access to the studio, van, and production equipment by residents and other entities located within the City with no prejudice, disadvantage, preference, or advantage to or for any persons or entity in connection with such use The facility and equipment usage plan shall be presented to the City for consideration and approval within one hundred twenty (120) days of the acceptance of this Franchise C Access Program Grantee agrees to air a minimum of twenty (20) hours of programming produced by City or City residents per month, if a sufficient amount of such programming is available Grantee shall make available adequate Channel capacity on its Basic Service Tier for such Programming Grantee may fulfill this requirement by providing local Programming itself or by cable casting local programming provided by others in the Tn-Cities Area Grantee agrees to use its best efforts to encourage and utilize programs produced by others Within one year of the date Grantee accepts this Franchise, access rules shall be adopted to ensure an equitable allocation of access to the PEG Channels between the City, other franchising authorities in the Tn-Cities Area, and other users of the PEG Channels Grantee shall provide training on the use of cable access production equipment and/or studio for persons interested in creating such local Programming Grantee shall make its best efforts to insure that local Programming meets the needs of the City for diverse Programming on issues of local interest D Staffing Grantee shall employ staff as its deems necessary to train, supervise, and assist persons desire to use the studio and/or production equipment Such staff shall be available during normal business hours at no charge to the access user and at other times for a reasonable and fair charge consistent with making access studio and/or equipment widely available Such charges shall be established as part of the rules provided for in Section 6 2(B) above For the purposes of this Section, normal business hours shall be considered to be the hours of 8 00 a m to 5 00 p m Monday through Friday, excluding legal holidays -27- E Training At least once every two months, the Grantee shall have staff available to conduct free video training workshops of up to one day in duration to train Access Users in the proper use of the studio and production equipment and in proper cable casting technique Section 6 3 Government Access Services A Production Assistance With respect to local government Access, the Grantee shall provide up to five (5) hours per week, cumulative to sixty (60) hours per calendar quarter use of the Grantee's studio, van, equipment, and technical services for production of live and video taped City programs The City will reimburse Grantee's actual production costs in excess of sixty (60) hours for each calendar quarter B Government Access Facilities Government access facilities, other than provided above by the Grantee shall be funded by the City from its franchise fees and general funds, with contributions from other area franchising authorities is appropriate under their respective franchises and permitted by applicable law Funding shall not be financed by additional charges to City resident subscribers Section 6 4 Educational Access Services A Except as otherwise provided herein, educational Access facilities shall be funded by participating educational institutions Funding for such educational facilities shall not be financed by additional charges to City resident Subscribers except as otherwise provided herein B Cable in the Classroom The Grantee has supported education by providing its Cable in the Classroom program free of charge to local schools In the event that the Cable in the Classroom program becomes unavailable, and another comparable program provided by the cable industry is available, Grantee shall provide such program to the public schools located within the City Section 6 5 PEG Channel Capacity A Public Access, Educational Access, and Governmental Access Channels Upon acceptance of this Franchise, Grantee shall provide one (1) video Channel for PEG Programming Within six (6) months of acceptance, Grantee shall provide not less than two (2) video channel for PEG Programming to all Subscribers Said PEG Channels shall be used exclusively for PEG programming Additional Public Access channels shall be provided as set forth in Section 6 6 -28- Hardwire Returns No sooner than 60 days following completion of the rebuild of the Cable System, the City may request, and the Grantee shall provide, at no charge, a minimum of 3 hardwire returns to PEG access origination points, as follows one return at Pasco City Hall, one return at Columbia Basin College, and one return at a location mutually agreed upon by the City and the Grantee The Grantee may elect to provide, at no charge, the equivalent capacity on the cable system The City may request, at the City's cost, additional hardwire returns Section 6 6 Expansion of Access Channels Additional Access Channels, up to a maximum of five (5), shall be made available when the existing Access Channel(s) is used for Access purposes with Programming of any type during fifty percent (50%) of the hours between 10 00 a m and 10 00 p m, during any consecutive ten (10) week period Except for character-generated announcements, the Programming of additional Channels required shall be distinct and non-repetitive of the previous Channel Based upon this criterion, the Grantee shall, within thirty (30) days following a request by the City, provide another designated Access Channel for this purpose The City shall have the right to designate whether each such additional Channel will be utilized for public access, educational, or government programming The requirements of this Section shall not become effective until six (6) months from acceptance of this Franchise Section 6 7 Access Channels on Basic Tier All Access Channels shall be provided on the Basic Service tier of Cable Service offered by Grantee on its Cable System Section 6 8 Technical Quality Grantee shall maintain all upstream, Downstream, and Access Channels and Interconnections of Access Channels at the level of technical quality and reliability required by this Franchise and all other applicable laws, rules, and regulations, or at the same level of quality as comparable Subscriber Channels, whichever is higher Section 6 9 Access and Local Programming Subject to 47 USC § 544(d), the Grantee shall exercise no editorial control over any public, educational, or governmental use of Channel capacity provided pursuant to this Article, provided, however, that the Grantee may refuse to transmit any Public Access program or portion of a Public Access program which contains obscenity, indecency, or nudity, to the extent permitted by law Article 7. General System Requirements Section 7 1 Introduction The Cable System shall include facilities and equipment that will deliver the levels of service described below The Cable System shall be designed to facilitate expansion of coverage and services, to -29- be upgradeable without significant impairment to working services or rebuilding the cable infrastructure Section 7 2 System Capacity and Features Within 6 months of acceptance of this Franchise, the Grantee's system shall have the following capacity and features Downstream Frequency Spectrum 54-450 Mhz Channel capacity with at least 70 Channels, Upstream Frequency spectrum 5-53 Mhz Channel capacity with at least 4 NTS C video Channels, or store and forward technology using telephone lines Section 7 3 Closed Channels The City reserves the right to require the Grantee to provide a maximum of one (1) Closed Channel for City use at City-owned facilities provided with Cable Services pursuant to Section 7 8 hereof Should the City desire to activate said Closed Channel, it shall notify the Grantee in writing and designate the City facilities which shall have access to the Close Channel Initially, the Grantee shall have 90 days to activate the Closed Channel and furnish all equipment necessary for use of the Closed Channel at designated facilities Thereafter, the Grantee shall allow and coordinate use of the Closed Channels by the City with seventy two (72) hours advance notice by the City The Grantee may utilize Access Channels to meet the requirements of this Section Section 7 4 Headend The Grantee's headend shall be housed in an environmentally hardened building, with sufficient air conditioning and power conditioning equipment for both short-term and long-term equipment installation Section 7 5 Future System Improvement A Threshold If the City finds that the Grantee's system in another Washington community or another system of similar Subscriber base in Washington provides an improved or higher level of residential service or operation (not including experimental services or operations), the Grantee may be required by the City to improve its system to provide equivalent service within thirty-six (36) months of notification No more than one (1) such request may be made during the initial term of this Franchise and no such request shall be made during the first three (3) years after the effective date of this Franchise In the event that the City requires a system upgrade under this Subsection, Grantee shall be entitled to an extension in the term of this Franchise pursuant to Subsection C hereof B Franchise Extension - Grantee Investment Any time while this Franchise is in effect, the Grantee may give the City plans for system improvements to maintain a high level of technical excellence The plans must include the financial scope of the project, its duration, any specific request for a franchise extension to realize a reasonable rate of return on -30- the project The City may approve an extension of this Franchise, but a voluntary system improvement does not obligate the City to do so, except under the following circumstances an upgrade of the Cable System to 550 MHz shall entitle the Grantee to an automatic five (5) year extension of this Franchise, and an upgrade of the Cable System to 750 MHz shall entitle the Grantee to an automatic ten (10) year extension of this Franchise Provided, however, that if the Grantee upgrades its Cable System to 550 MHz and later upgrades to 750 MHz, Grantee shall only be entitled to a total extension of ten (10) years C Franchise Extension - City Requirements Except as provided in Section 7 2 and Section 7 5(B), if the City requires the Grantee to improve its system, this Franchise will be extended under the same terms and conditions for ten (10) years or less, as determined by the City, after the improvement is complete Notwithstanding any other provision of this franchise, the extension will be long enough to realize a reasonable rate of return, including a return on the investment on the project, and the parties agree that all costs pursuant to this section may be passed through to subscribers D Institutional Network Grantee shall include, in any upgrade of its Cable System under this Section, four (4) additional fibers to be reserved for the Grantee's institutional network use, as described herein within the City Upon request of the City, Grantee shall offer an Institutional Network (I-Net) to the City for its non-commercial, governmental, closed circuit communications according to the following terms and conditions 1 Grantee shall operate the I-Net independent of, or in conjunction with the residential subscriber network for the purpose of providing institutional services to the City and other government agencies, schools, libraries, and other public agencies The network shall be an optical fiber based I-Net that is managed by the Grantee Grantee shall have no obligation to construct or operate an I-Net to provide institutional services beyond installation of fiber capacity, unless and until the City contracts with Grantee to provide services, providing the Grantee with a reasonable return on investment Grantee shall charge the City the lowest competitive prices for hardware and services delivered as compared to traditional telecommunications providers Should the City request I-Net services from Grantee prior to an upgrade of the Grantee's Cable System under this Section, Grantee shall be obligated to provide a substantially equivalent network to the City at the lowest competitive prices for hardware and services delivered as compared to traditional telecommunications providers, whether through an affiliate or otherwise -31- 2 Grantee shall not be required to provide any service if the provision of such service subjects the Grantee to regulation by any governmental agency as a utility or common carrier Section 7 6 Emergency Alert System A Subparagraph A in accordance with, and at the time required, by 47 CFR § 11 51, and as such provisions may from time-to-time be amended, the Grantee shall install, if it has not already done so, and maintain an Emergency Alert System (EAS) for use in transmitting emergency messages as required by 47 CFR § 11 51 B The City shall permit only appropriately trained and authorized persons to operate the EAS equipment and shall take reasonable precautions to prevent any use of the Grantee's Cable System in any manner that results in inappropriate use thereof, or any loss or damage to the cable system Section 7 7 Leased Access The Grantee shall make Channels available for leased or commercial use consistent with federal requirements Section 7 8 Public Drops The Grantee shall provide without charge within the franchise area one drop activated for Basic Service to each fire station, public school, police station, public library, City Hall, and the City Public Works shop The Grantee shall be permitted to recover, at the Grantee's published rates, for any additional converters required and the Grantee's direct cost of installing, when requested to do so, more than one outlet, concealed inside wiring, or a service outlet requiring more than 125 feet of drop cable Nothing in this Section shall be construed to prohibit the City and the Grantee from reaching an agreement whereby the Grantee would bear the burden for all or a portion of the cost of installing any equipment (including wiring) necessary to cablecast meetings of the Council All such facilities shall be wired and activated within six (6) months of acceptance of this Franchise Section 7 9 Standby Power The Grantee shall maintain equipment capable of providing a continuous source standby power for the Cable System for two hours in the event of loss of commercial power The Grantee shall comply with all safety regulations to prevent standby generators from powering the "dead" utility line The Grantee shall make every effort to activate the standby power within one hour of a service outage In no event shall the Grantee delay activation of the standby power longer than three hours after the power outage for any power outage occurring between 6 00 a m local time and 10 00 p m local time Standby power shall be activated by 9 00 a m local time for any power outage occurring between 10 00 p m local time and 6 00 a m local time -32- Article 8. Upgrade and Extension Projects Specifications Section 8 1 Introduction Any Cable System rebuild and upgrade project shall be designed so as to minimize service interruptions and inconvenience to Subscribers Subscribers in the City will be informed of the impending upgrade and the benefits of the new system Grantee will maintain a local or toll-free customer service phone number during the rebuild, so that Subscribers may call with questions or complaints Section 8 2 Cable System Rebuild Schedule The Grantee will complete any upgrade rebuild of the Cable System in the City within the time-frames established in a construction plan approved by the City, excluding delays reasonably beyond the Grantee's control Section 8 3 Component and System Tests Grantee will initially test all active components before installation into the system System testing shall be performed in accordance with Section 9 1 of this Franchise Section 8 4 Service Cutover Process Grantee agrees to adopt the necessary procedures to ensure minimal disruption of service to Subscribers when activating and converting subscribers to the rebuilt system Article 9. System Construction, Installation, and Maintenance 9 1 Construction and Maintenance Standards A The Cable System constructed or maintained within the City shall meet or exceed all technical standards consistent with this Franchise and applicable federal statutes and regulations B The Grantee shall maintain for inspection by the city, a copy of the final report on each proof of performance test required by Part 76, Subpart K, of the Rules and Regulations of the FCC Grantee shall notify the City within 10 working days of completion of such reports and the availability thereof If the FCC shall cease to require such tests, or if the FCC's regulations do not apply pursuant to 47 CFR § 76 601(c), the Grantee shall continue to conduct such tests at least once each calendar year (at intervals not to exceed 14 months), shall provide notice to the City of the availability of copies of each formal report within 10 working days of completion of such reports, and shall maintain the resulting test data on file at its local office for at least 5 years The City subsequently may require a full report on any deficiencies as disclosed by the proof of performance test within such reasonable period of time as it may designate - -33- C The City may require any other reasonable proof of performance tests annually and/or within 90 days of the completion of the construction of a new segment of the system or the upgrading or reconstruction of the existing system The tests and verification shall be at the expense of the Grantee D The Grantee shall keep accurate maps and as-built diagrams for all system equipment and components installed within the Public Ways The Grantee shall submit to the City, as the City may request, a copy of strand maps and charts Section 9 2 Construction and Installation Work A Before commencing any construction in, above, over across, under, through or in any way connected with the Streets, Public Ways or public places of the City, the Grantee shall first submit to the City Manager its plan and design maps The Grantee may commence construction in accordance with such maps upon written approval by the City Manager and the Public Works Director and upon issuance of all permits and licenses necessary to do the work, provided, however, that City approval shall not be unreasonably withheld The Grantee shall give the City notice within a reasonable time prior to the commencement of the proposed construction, but in no event shall the notice be given less than 30 days before such commencement unless waived by the City or unless shorter notice is reasonably necessary Such construction shall be done under the supervision of the Public Works Director B The Grantee or any other person acting on its behalf shall not obstruct, open, or otherwise disturb the surface of any Street, sidewalk, driveway, Public Way or other public place for any purpose whatsoever without obtaining the approval to do so after proceeding in the manner prescribed above, provided, however, that minor construction of an emergency nature may proceed upon oral approval from the Public Works Director C Any obstruction, opening, or disturbance of any Street, sidewalk, driveway, Public Way or other public place shall be properly guarded by adequate barriers, lights, signals and warnings to prevent danger to any person or vehicle The Grantee shall, at its own cost and expense, restore and replace any property disturbed, damaged or any way injured by or on account of its activities to as good condition as the property was in immediately prior to the disturbance, damage, or injury If the Grantee fails to comply with the requirements of this Subsection within 10 days following written demand by the City, the City may cause such work to be done at the Grantee's expense Nothing in this Subsection shall be interpreted to preclude the Grantee from passing onto a Subscriber the actual construction costs associated with providing cable drops of more than 125 feet -34- , D The Grantee shall maintain all wires, conduits, cables, and other real and personal property and facilities in good condition, order and repair All Cable System facilities shall be maintained so as to further, to the extent reasonably possible, the objective of maintaining the aesthetic character of the City The City, in its sole discretion, may determine whether the Grantee has complied with this requirement If the Grantee fails to comply with this requirement, the City may cause such work to be done at the Grantee's expense E The City shall have the right to inspect all construction and installation work performed by the Grantee pursuant to this Franchise as it shall find necessary to insure compliance with governing ordinances and this Franchise F All construction, installation and maintenance must comply with the National Electrical Safety Code, the National Electrical Code as adopted by the City, the Bell System Code of Pole Line Construction, all state and local regulations, and good and accepted industry practices G The City shall have the right to require the Grantee, upon reasonable notice, to relocate at Franchisee's sole expense, any facility and equipment to other available locations and in accordance with any requirement imposed by the City Section 9 3 Location of Structures, Lines and Equipment A The Grantee shall utilize existing poles, conduits and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately owned property until approval of the property owner or appropriate governmental authority is obtained Such approval shall not be unreasonably withheld However, the location of any pole or wire-holding structure by the Grantee shall not constitute a vested interest, and such poles, structures, or facilities shall be removed, replaced or modified by the Grantee at its own expense whenever the Council or other governmental authority determines that the public interest so necessitates B All transmission and distribution structures, lines, and equipment installed by the Grantee within the City shall be located so as to cause minimum interference with the proper use of Streets, alleys and other Public Ways and places and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the streets, alleys or other public ways or places and where they will not interfere with any gas, electric, telephone, water or other preexisting utility facility -35- C In any area of the City in which there are no aerial utility facilities other than antennas or other facilities required to remain above ground in order to be functional, or in any public way in which all telephone, electric power wires and cables have been placed underground, Grantee shall not be permitted to erect poles or to run or suspend its cable facilities thereon, but shall lay such wires, cables or other facilities underground in the manner required by the City Grantee acknowledges and agrees that if the City does not require the undergroundmg of its facilities at the time of initial installation, the City may, at any time in the future, require the conversion of Grantee's aerial facilities to underground installation at Grantee's expense upon the provision of at least 180 days written notice In new housing developments the Grantee shall install distribution cables at the same time utility facilities are being installed if reasonably possible Underground distribution cable shall, at all times, be installed and maintained at a minimum depth of 18 inches D All cables and wires or other work shall be installed parallel with existing telephone and electric utility wires wherever possible However, this provision does not relieve the Grantee of its obligation to place its lines and installations underground as required by Subsection C of this Section E Multiple configurations shall be in parallel arrangement and bundled in accordance with engineering and safety considerations F All poles and other fixtures in any Street or Public Way shall be placed in accordance with the laws and regulations of the City subject to provisions of Subsection C of this Section G All transmission and distribution structures, lines and equipment, including drop and feeder cable, shall be installed so as to maintain the aesthetic character of the City H The Grantee shall, at its own cost and expense, protect, support, temporarily disconnect, relocate in the same Street or other public place, or remove from the Street or other public place, any of its property when required to do so by the City because of street or other public excavation, construction, repair, regrading or grading, traffic conditions, installation of sewers, drains or water pipes, City-owned power or signal lines, tracks, vacation or relocation of streets or any other type of structure or improvement of a public agency, or any other type of improvement necessary for the public health, safety or welfare I The City shall have the right, during the term of this Franchise, to install and maintain free of charge upon the poles of the Grantee any wire and pole fixtures and appurtenances that do not unreasonably interfere with the operations of the Grantee -36- J The Grantee shall provide to any available "one number locator service," as defined by Chapter 19 122 RCW, RCW 19 122 020(13), a list of all its underground facilities and equipment The Grantee shall, before commencing excavation, provide notice of the scheduled commencement of excavation through the one-number locator service if such a service is available Provided, further, that prior to commencing any construction in the public ways, the Grantee shall comply with all of the provisions established by Chapter 19 122 RCW K On request of any person who is authorized to perform work on any Public Right-of-Way which has been used by the Grantee for erection of a Cable System, the Grantee shall provide information regarding the type, location, height, and other pertinent information of poles, conduits, and other structures which the Grantee has placed on the Right-of-Way Section 9 4 Replacement of Paving The Grantee at its own cost and expense and in the manner approved by the City shall replace and restore all paving, sidewalks, driveways, or surface of any Street or alley disturbed, in as good condition as before the work was commenced and shall maintain the restoration in an improved condition for a period of one year Failure of the Grantee to replace or restore such paving, sidewalk, driveway or street surface within 48 hours after completion of work shall authorize the City to cause the proper restoration to be made at the Grantee's expense Section 9 5 Moving of Buildings The Grantee shall, on the request of any person holding a valid house-moving permit, temporarily raise or lower its wires or cables to permit the moving of buildings or other large objects The expense of such temporary raising or lowering of wires shall be paid by the person making the request, and the Grantee shall have the authority to require such payment in advance The Grantee shall be given not less than 48 hours advance notice to arrange for such temporary wire changes Any interruption in service occasioned by this activity shall take place, as far as is practicable, outside of prime time (7 00 p m to 11 00 p m local time) Section 9 6 Trimming Trees The Grantee shall have the authonty to trim trees on public property or which overhang streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming in contact with wires and cables and other television conductors and fixtures of the Grantee The City may require such trimming to be done under its supervision and direction and at the expense of the Grantee Section 9 7 Network Monitoring and Repair Following any upgrade of the Cable System, Grantee shall monitor all power supplies and fiber nodes utilizing the latest in status monitoring techniques to ensure a high , quality of service and minimal response time to service interruptions -37- Section 9 8 Spare Parts The Grantee shall have immediately available a sufficient supply of spare parts to effect repairs in accordance with the requirement of this Franchise Section 9 9 Delays in Construction A The following event shall take place upon failure by the Grantee to complete, in timely fashion, any planned construction 1 Reduction of the term of a franchise by one month for each month by which the construction was completed late This shall be measured with respect to the date construction was due to be completed, however, this provision shall not take effect until construction is three months overdue 2 If construction is more than 12 months overdue, forfeiture of the entire construction bond 3 If construction is more than 18 months overdue, termination of the franchise B If the Grantee is delayed at any time in the progress of construction by the failure of the appropriate public utility company or companies to diligently process pole attachment agreements or applications or to make such poles ready for attachment, or the failure of the City or other governmental authorities to diligently process applications for approval as may be required in connection with the construction of the Cable System, or by labor disputes, fire, unusual delays in transportation, inability of franchisee to procure materials, act of God, war, riots, insurrection or any causes beyond the Grantee's control, and which could not have been reasonably anticipated, then a franchisee shall be allowed to petition the Council for an extension of time to complete construction Such petitions shall not be unreasonably denied by the Council If a petition is granted, Subsection A of this Section shall not apply for that period of time by which the Grantee was delayed by reason of events beyond its control Section 9 10 Repair of Damages The Grantee, its successors and assigns shall promptly repair any damage of every type and nature to City property or City improvements caused by the failure or workmanship of the Grantee's work during the life of this Franchise -38- Article 10. System Operation Section 10 1 Line and Service Extension A The Grantee shall extend service into all portions of the City, including previously unwired portions of the City, new developments and subdivisions, and newly annexed territory with the following dwelling unit densities (1) Areas in which the Franchisee is permitted to install its Cable System above ground - twenty (20) aerial drop services per strand mile of plant, and, (2) Areas in which the Franchisee is required to install its Cable System underground - forty (40) drop services per strand mile of plant B Unwired areas of the City meeting the density requirements set forth in this Section shall be provided Cable Service within the following time periods (1) Unwired areas of the City - within six (6) months of Franchise acceptance, (2) Areas subsequently annexed to the City - within twelve (12) months of the effective date of the annexation, and, (3) New developments -' within sixty (60) days of initial occupancy C In the event a request is made for service by a resident living in an area not meeting the density criteria set forth in this Section, the Franchisee shall make its best efforts to notify the City and seek its assistance in identifying other interested residents in the area, and shall enter into a contractual agreement with the residents requesting service wherein the Franchisee shall be reimbursed for its actual construction costs In such instance, upon request, but for no more than a three (3) year period, the Franchisee shall make a pro rata refund, if and when additional dwellings are serviced by the same distribution line Section 10 2 Provision of Service The Grantee shall provide subscriber service on the following basis A The Grantee's operation of the Cable System shall be consistent with the FCC customer service obligations set forth in 47 CFR 76 309, as said standards currently exist or are hereafter amended To the extent that this Franchise establishes a customer service obligation more stringent than the FCC regulations, the more stringent provision contained within this Franchise shall apply B The Grantee shall not deny service, access, or otherwise discriminate against any person, including Subscribers and users, on the basis of race, color, religion, national origin, age, or sex The Grantee shall comply at all times with all other applicable federal, state, and local laws and regulations -39- C In providing service the Grantee shall 1 Operate an office within the Tr-Cities Area open during normal business hours Monday through Friday, excluding legal holidays as set out in RCW 116 050 2 Provide a local toll-free telephone service capable of receiving Subscriber service complaints, on a 7 days a week, 24 hours a day basis 3 Provide service for new installations, reconnections, and relocations within 7 business days of receipt of such requests 4 Establish a maintenance service capable of promptly locating and correcting system malfunctions Service trucks shall be equipped for voice communication with the Grantee's dispatcher In order to permit a rapid response to any system-wide outage the Grantee shall have service trucks available for emergency duty to repair system outages during nonbusiness hours 5 Make every attempt to respond to Subscriber complaints upon receipt, but in no case later than the next working day Subscriber complaints, with the exception of service interruptions, shall be resolved within 14 days The Grantee, whenever reasonably practicable, shall make system repairs and testing (which would result in any interruption of service to Subscribers) at times which will least affect typical Subscriber television viewing habits, provided, however, the Grantee shall not be required to conduct such system repairs and testing during nonbusiness hours 6 Restore service interruptions within 24 hours of learning of the service interruption In those cases where service is not restored within 24 hours due to unusual circumstances, the reasons for the delay shall be fully documented in a complaint log If after 24 hours, service is not restored to a Subscriber, the Grantee shall, upon Subscriber request, provide a refund or credit to such Subscriber as hereinafter set forth For each full 24-hour period and subsequent fractions thereof, the refund or credit shall be in the amount of one-thirtieth of the monthly charge for each tier of service and each premium service which is unavailable to the Subscriber 7 A log of such complaints shall be maintained for inspection by the City The log shall include the following information name of complainant, nature of complaint, date and time received, disposition, and time and date of disposition Such logs shall be maintained for a period of not less than 2 years -40- 8 To the extent permitted by state and federal law, provide the City, upon request, any information pertaining to specific Subscriber complaints The Grantee shall keep a continuing record for at least 2 years of all Subscriber complaints received by the Grantee The record shall include, at a minimum, the following information name of complainant, nature of complaint, date and time received, disposition, and time and date of disposition This record shall be available for inspection by authorized City representatives at the local office of the company during regular office hours The Franchisee shall also comply with all requests by City officials to deliver such record to the City for inspection Delivery shall be made to the official(s) requesting such inspection 9 Assure that all closed caption programming retransmitted by the Cable System includes the closed caption signal When the Grantee provides a converter box to a household with a mobility limited Subscriber or resident, the Grantee shall also provide a remote control device to such Subscriber For hearing impaired customers, the Grantee shall provide information concerning the cost and availability of equipment to facilitate the reception of Basic Service for the hearing impaired 10 Within six (6) months of acceptance of this Franchise, have TDD/TTY equipment, and/or its successor technology, at the company office, and a local or toll-free telephone number listed on Subscriber bills, in local telephone directories and with directory assistance for such equipment, that will allow hearing impaired customers to contact the company D As Subscribers are connected or reconnected to the Cable System, the Grantee shall, by appropriate means such as a card or brochure, furnish general Subscriber information (including, but not limited to, terms of service and procedures for making inquiries or complaints, including the name, address, and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed) and furnish information concerning the City office responsible for the administration of this Franchise, including the address of the office E When similar complaints have been made by, a number of Subscribers, or where other evidence exists which, in the judgment of the City, casts doubt on the reliability or quality of the Cable Service, the City shall have the right and authority to reasonably require that the Grantee test, analyze, and report on the performance of the system The Grantee shall fully cooperate with the City in performing such testing and shall prepare a written report of the results, if requested, within 30 days after notice Costs of such testing shall be borne by the Grantee -41- F The City reserves the right to require the Grantee to furnish quarterly reports related to the level and quality of customer service provided via telephone to Subscribers The City shall provide a minimum 120 days advance written notice prior to requiring such reports Said reports shall contain, at a minimum, the following information (1) Number of calls received per day, (2) Time taken to answer, (3) Average talk time, (4) Number of calls abandoned by the caller, (5) Average hold time, (6) Percentage of time all lines busy, (7) An explanation of any abnormalities, including the exclusion of calls due to emergencies, and, (8) A comparison of the above- referenced data with the applicable FCC Customer Service Standards G Calls for service generated during a period of Cable System outages due to an emergency affecting more than twenty-five (25) customers may be excluded from the service response calculations The City shall retain the right to require additional information, beyond that provided in the Franchisee's quarterly report, on calls excluded from the service level calculations Section 10 3 Refunds and Service Terminations A The Grantee shall establish and conform to the following policy regarding refunds to Subscribers and users 1 The Grantee may only collect advance charges equal to the charge for one month's service, and may not collect a deposit for use of equipment greater than Grantee's cost of the equipment In the event the Grantee assesses a deposit for use of equipment which is greater than $50 00, the Grantee may only collect the deposit in 3 equal, monthly installments If the Grantee collects a deposit or installment thereof or advance charge on any service or equipment requested by a subscriber or user, the Grantee shall provide such service or equipment within 30 days of the collection of the deposit or installment thereof or charge or it shall refund such deposit or installment thereof or charge within 5 business days thereafter Nothing in this Section shall be construed a To relieve the Grantee of any responsibility it may have under separately executed contracts or agreements with Subscribers or users, b To limit the Grantee's liability for damages, if any, because of its failure to provide the service for which the deposit or installment thereof or charge was made 2 In the event that a Subscriber terminates service during the first 12 months of service because of the failure of the Grantee to render service substantially in accordance with the requirements set forth in this -42- Franchise, the Grantee shall, upon written request, refund to such Subscriber an amount equal to the initial installation or reconnection charge paid by the Subscriber, provided, however, that nothing herein shall be deemed to entitle the Subscriber to a refund of any other charges due the Grantee for its Cable Service The Subscriber shall bear the burden of proof in establishing that he is entitled to a refund of initial installation or reconnection charges hereunder 3 In the event that a Subscriber terminating service because of the failure of the Grantee to render service substantially in accordance with the requirements set forth in this Franchise has made any additional advance payment, the amount so advanced shall be refunded to such subscriber within 30 days of service termination Nothing in this provision shall be construed to relieve the Grantee of any liability established under any other provisions of this Franchise 4 If a Subscriber decides to reinstate service, the Grantee may impose a reconnection charge, such charge not to exceed the fee for a new installation B Residential Subscribers shall have the right to disconnect a service installation or outlet at any time Section 10 4 Service Area The Grantee shall offer full Cable Service to all areas of the City, subject to Section 10 1 All dwelling units within the franchise territory shall be offered service on the same terms and conditions, provided, however, multiple family dwelling complexes, apartments or condominiums may be served on a master-billed basis and, further, service to motels, hotels, hospitals and similar businesses or institutions may be offered on terms and conditions different from single resident Subscribers Section 10 5 Protection of Privacy Protection of Subscriber privacy shall be assured consistent with the provisions of 47 U S C § 551 Section 10 6 Continuity of Service A Where the Grantee rebuilds, modifies or sells its system, it shall ensure that all Subscribers receive continuous, uninterrupted service regardless of the circumstances, unless otherwise authorized by the Council The Grantee may receive permission for service interruptions of less than 24 hours from the City Manager B As long as it is entitled to revenues from the operation of the Cable System, the Grantee shall maintain continuity of service during any temporary transition in the Franchise, including but not limited to the following circumstances -43- 1 Revocation of the Franchise, 2 Nonrenewal of the Franchise, or 3 Transfer of the Cable System to the City or another entity Section 10 7 Transitional Operation In the event the Grantee continues to operate the system in a transitional period, with City acquiescence, following the expiration, revocation or other termination of this Franchise, it shall be bound by all the terms, conditions and obligations of this Franchise as if it were in full force and effect The Guarantee shall cooperate with the City and any subsequent franchisee in maintaining and transferring service responsibility Section 10 8 Equal Opportunity Employment Equal opportunity in employment shall be afforded by the Grantee to all qualified persons, and no person shall be discriminated against in employment because of race, color, religion, national origin or sex The Grantee shall establish, maintain, and carry out a positive, continuing program of specific practices designed to assure equal opportunity in every aspect of company employment policy and practice The Grantee shall comply with all federal, state and local equal opportunity employment requirements and practices Section 10 9 Additional Consumer Protection The City reserves the authority to take any reasonable action to protect consumers of Cable Services Section 10 10 General Provisions A Entire Agreement This Franchise contains all of the agreements of the parties with respect to any matter covered or mentioned in this Franchise and no prior or contemporaneous agreements or understandings pertaining to any such matters shall be effective for any purpose No provision of this Franchise may be amended or added to except by agreement in writing signed by both of the parties Attorney Fees If any suit or other action is instituted in connection with any controversy arising under this Franchise, the prevailing party shall be entitled to recover all of its costs and expenses including such sum as the court may judge reasonable for attorneys fees, including fees upon appeal of any judgment or ruling Non-Waiver Failure of the City to declare any breach or default immediately upon the occurrence thereof, or delay in taking any action in connection with, shall not waive such breach or default, but the City shall have the right to declare any such breach or default at any time Failure of -44- the City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default D Governing Law/Venue This Franchise shall be governed bY and construed in accordance with the laws of the State of Washington The venue and jurisdiction over any dispute related to this Franchise shall be with the United States District Court for the Eastern District of Washington or the Franklin County Superior Court, Pasco, Washington E Authority Each individual executing this Franchise on behalf of the City and the Guarantee represents and warrants that such individuals are duly authorized to execute and deliver this Franchise on behalf of the Franchisee or the City F Notices Any notices required to be given shall be delivered to the parties at the following addresses Grantee TCI of Washington 639 N Kellogg Kennewick, WA 99336 Attn General Manager with a copy to TCI of Washington P0 Box 91220 Bellevue, WA 98009-9220 Attn Legal Dept City City Manager P0 Box 293 525 N Third Ave Pasco, WA 99301 Notices may be delivered personally to the addressee or deposited in the United States mail, postage prepaid, to the address set forth herein, unless otherwise provided herein Notice deposited in the United States mail shall be deemed received three (3) days after the date of mailing or upon actual receipt, whichever occurs earlier G Captions The respective captions of the Sections of this Franchise are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect in any respect any of the provisions of this Franchise H Time of Essence Time is of the essence of this Franchise and each and all of its provisions in which performance is a factor -45- ar es D Kilbury, ayor Remedies Cumulative Any remedies provided for under the terms of this Franchise are not intended to be exclusive but shall be cumulative with all other remedies available to the City at law, in equity or by statute Superseding Effect This Franchise shall, as of its effective date, supersede and replace all existing Franchises previously granted by the City to the Franchisee or any of its predecessors, subsidiaries or affiliated companies Force Majeure See Section 3 5(B) Section 3 Severability If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this ordinance Section 4 Effective Date This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect five (5) days after passage and publication of an approved summary thereof consisting of the title PASSED by the City Council of the City of Pasco at a regular meeting this 45- day of June, 1998 ATTEST: Catherine D Seaman, Deputy City Clerk APPROVED AS TO FORM: Leland B Kerr, City Attorney PUBLISHED q6,\\°n;sa EFFECTIVE DATE -46- SUMMARY OF ORDINANCE NO. On the day of , 1998, the City Council of the City of Pasco, Washington, passed Ordinance No A summary of the content of said ordinance, consisting of the title, provides as follows AN ORDINANCE OF THE CITY OF PASCO, WASHINGTON, RELATED TO CABLE TELEVISION, REPEALING CITY OF PASCO ORDINANCE NO 2428 AND RESOLUTIONS NOS 1563 AND 1561, GRANTING A NON-EXCLUSIVE CABLE TELEVISION FRANCHISE TO TCI OF NORTHERN NEW JERSEY, INC D/B/A TCI OF WASHINGTON, AND FIXING A DATE WHEN THE SAME SHALL BECOME EFFECTIVE The full text of this Ordinance will be mailed upon request DATED this day of , 1998 Catherine D Seaman, Deputy City Clerk -47- #0857 ORD NO 3304 013,kb iSt%"111-- P 6 BOX 2108 PASCO, WASHINGTON 99302 2608 PHONE (509) 582 1500 162641, ADVEN''F1101100 INVOICE DATE 06/21/98 LEGAL No #0857 ACCOUNT NO 1922 DESCRIPTION TIMES 1 LINES 35 EGEHIE JUL 0 6 1998 FIN ANCE EPT. Mg DAY OF SOLD TO CITY OF PASCO LEGALS PO BOX 293 PASCO WA 99301 7071alg 35 83 IXIOTOCE This Is an invoice for legal advertising space Please pay from this invoice as no statement will be rendered Please detach at perforation and return with payment AYFIRDAKY PUDE,OLMOO DIANA L HUDON , being duly sworn, deposes and says, I am the Legal Clerk of the Tri-City Herald, a daily newspaper That said newspaper is a legal newspaper and has been approved as a legal newspaper by order of the superior court in the county in which it is published and it is now and has been for more than six months prior to the date of the publication hereinafter referred to, published countinually as a daily newspa- per in Benton County, Washington That the attached is a true copyofa #0857 ORD NO 3304 as it was printed in the regular and entire issue of the Tr-City Herald itself and not in a supplement thereof, 1 time(s), commencing on 06/21/98 , and ending on 06/21/98 , and that said newspaper was regulary distributed to its subscribers during all of this period L44( AO Al /Ark SUBSCRIBED AND SWORN BEFORE ME THIS Notary public on and for the State o Wash- ington, residing at RICHLAND WA 08/15/2000 COMMISSION EXPIRES COUNTY OF BENTON SS STATE OF WASHINGTON SUMMARY OF ORDINAN!..E NO. 3304 On the 15th day of June 1998 the City Council of the City of Pasco Washington passed Ordi- nance No 3004 A sum- mary of the content of said ordinance consisting of the title provides as follows AN ORDINANCE OF THE CITY OF PASCO WASHINGTON RELATED, TO CABLE TELEVISION I REPEALING CITY OF PASCO ORDINANCE NO 2428 AND RESOLUTIONS' NOS 1563 AND 1561 GRANTING A NON- EXCLUSIVE CABLE TELEVISION FRANCHISE TO TCI OF NORTHERN NEW JERSEY INC D/B/A TCI OF WASHINGTON AND FIXING A DATE WHEN THE SAME SHALL BECOME EFFECTIVE The full text of this Ordi- nance will bc mailed upon request DATED this 16 day of June 1998 -s Catherine D Seaman Deputy City CiSrk #0857 - 6121/98