HomeMy WebLinkAbout3245 Authorizing and Granting a Television Cable Franchise to Wave Division III, LLCOrdinance No. 3245
AN ORDINANCE OF THE CITY OF PORT TOWNSEND, WASHINGTON,
AUTHORIZING AND GRANTING A TELEVISION CABLE FRANCHISE TO WAVE
DIVISION 111, LLC
WHEREAS, cable television is an important service to many in the City of Port
Townsend; and
WHEREAS, the City of Port Townsend and WAVE Division 111, LLC have agreed on
terms, conditions, and provisions for a new cable television franchise to replace the existing
franchise; and
WHEREAS, the terms, conditions, and provisions for a new television cable franchise
are set forth, in full, in the Franchise agreement, which is attached hereto, marked as "Exhibit A"
and incorporated by this reference; and
WHEREAS, the City Council finds that the terms, conditions, and provisions for a new
television cable franchise are in the best interests of the citizens of Port Townsend; and
NOW THEREFORE, the City Council of the City of Port Townsend does ordain as
follows:
Section 1. &&L)fion. The City of Port Townsend approves and adopts the Franchise Agreement
dated February 18, 2020, which is attached hereto as "Exhibit A" and is incorporated into this
ordinance as if set out in full.
Sectioii 2 Executioti. The City Manager of the City of Port Townsend is authorized and directed
to execute the Franchise Agreement with WAVE Division III LLC.
Sectioii 3, Seve ' i " , " a)ili-(y
t. If any clause, sentence, paragraph, section or part of this Ordinance or its
application to any person or circumstance is held to be invalid or unconstitutional by a court of
competent jurisdiction, such order or judgment shall not affect the validity or constitutionality of
the remainder of any part of this Ordinance. To this end, the provisions of each clause, sentence,
paragraph, section or part of this Ordinance is declared severable.
Section 4. Effectiv ' e '-' Date. This Ordinance shall be effective five days following publication of
this Ordinance or a summary thereof.
Ordinance 3245
Page 2 of 2
ADOPTED by the City Council of the City of Port Townsend, Washington, at a regular
meeting thereof, held this 2nd day of March 2020.
Attest:
�
Joanna Sanders,�� ....
MMC
City Clerk
Michelle Safi ov PI
Mayor
Approved as to Form:
c .i„re r woo
City Attorney
Ordinance 3245 Exhibit A
Page 1 af'41
Framch"Ise, Ameement
d��rar The
Between
Poiii I
Townsend
Wave
Division
Ordinance 3245 Exhibit A
Page 2 of 41
TABLE OF CONTENTS
(Table of Contents page numbers are subject to change.)
SECTION 1. GRANT OF FRANCHISE...........................................................,...,......................,.........».,3
1.1
Grant..................................................................................... ....... ...a.........,........,..,a..........,,....3
1.2
Term .................................. .................. .................................. ...........................,.......,...,.,.........
3
1.3
Effective Date..........................................................................................................................3
1.4
Franchise Area............................................................................................................................3
1.5
Effect of Acceptance .......... .................. .................. ................... ................. .._................
.,........3
1.6
Rights Reserved.....................................................................................................................3
1.7
Franchisee Compliance and Relationship to Other Laws.........................................................3
1.8
Affiliates Must Comply............................................................................................................4
1.9
Legal Qualifications ..............................................................
4
1.10
Competitive Equity..................................................................................................................4
SECTION 2. SHORT TITLE AND DEFINITIONS.........................................................................».. _...5
SECTION 3. FRANCHISE - LIMITATIONS.. .......... .............................. ........ .....».
..................»6
SECTION 4. NON-EXCLUSIVE FRANCHISE AND COMPETITION ENCOURAGED
...,.».»,»...........».7
SECTION5. NO WAIVER ...................................... ....... ___ ....... .».»......... ....... ......... ...................7
SECTION 6. CUSTOMER PROTECTION .........................»»........».».» »........ ........, ........ .........7
6.1
Customer Protection................................................................................................................7
6.2
Privacy.....................................................................................................................................8
6.3
Maintenance and Complaints.................................................................................................8
6.4
Non -Discrimination and Equal Employment Opportunity.........................................................8
6.5
Parental Control Device ........ ................................................ ___ .....................
...... ...........__ 9
SECTION 7. SYSTEM FACILITIES, EQUIPMENT, AND SERVICES.»................................................9
7.1
Cable System Design and Functionality..................................................................................9
7.2
Interconnection........................................................ ............. ____ ...... .....,...................
,.... ....10
7.3
Reserved...............................................................................................................................10
7.4
Cable System Upgrade...........................................................................................................10
7.5
Performance Testing............................................................................................................10
7.6
System Inspections .................................................
.......,.10
7.7
Other Construction Procedures..................................................,....,..,......,..,....,,...,..............11
7.8
System Maintenance............................................................................................................11
7.9
System Performance.........................................................................................
..................11
7.10
Future System Upgrades/Rebuilds.......................................................................................11
7.11
Service Availability...................................................... .............. .......................................,,,....
.12
1
Ordinance 3245 Exhibit A
Page 3 of 41
7.12 Public, Educational and Government Use ...................................................... .~.... _...... ... 12
A. Designated /Access Provider ----------------------_------_12
B . PEG Access Channel Capacity ........... ...... ..... .................. .................... _------.13,
C. Requirements Regarding Rules and Procedures for Use nfPEG Access .... ._............
-13
O. PEG Channel Promotion ..... ............................................................................. ..__-..'13
E. PEG Channel Locations ................................................................................ -........ .......
.14
F. PEG Access Grants and Support for Access Channels .......... ................... ----_--14
G. General .................... ...... .................. ....................................................... --- ....... ........
15
7.13 NoCity Control .................. ............................................................................. --- ... ---...
15
714 Emergency Alert System ............................................................................... ....... ----..15
SECTION 8'CONSTRUCTION STANDARDS ............................. .... ................ ..... ........ ........ ..........
16,
SECTION 9' RATE REGULATION .....................................................................................................
16
SECTION 10.FRANCHISE FEES ~~...............................................................................................
~17
SECTION 11.PROTECTION OFCITY AND ENFORCEMENT — PERFORMANCE BOND .... ........
18
SECTION 12.PROTECTION OFCITY AND ENFORCEMENT — APPROVAL OF SURETIES:
RELATION TO OTHER REMEDIES ..................................................................... --- ...... ....... .......
.1@
SECTION 13. TERMINATION, REVOCATION, FORFEITURE .... ....... ................... ...................... ....18
SECTION 14.REMEDIES — LIQUIDATED DAMAGES ................................... --- ................ ..........
2Q
SECTION 15.REMEDIES — CUMULATIVE .......................................................................................
20
SECTION 16.REMEDIES CONTINUITY OFSERVICE ............... ................... .~...... ....................
21
SECTION 1T.BOOKS AND RECORDS — INSPECTION .............. ._.... ............... ......... ...................
21
SECTION 1B.PERFORMANCE MONITORING .................................................................................
22
SECTION 1g.MISCELLANEOUS ................................................................................ ......................
22
191 Time ofEssence ... ................................................................................... --......................
22
18.2 Effect ofPreemption; Federal and State Law ................... ...................... --.....................
22
19.3 Force Majeure—, ------------------------------__-----'22
19AWritten Notice ........................ ........................................................................ .....................
23
19.7 |ndemnifioation_.................................. .............. —..................................... ......................
23
19.8 Benefit toCity ........................ ............................................ .......... .............. --- ..................
24
19.9 Third Party Right ofAction------------------------..~~~...----'25
13.10 Washington Law Applies .... ............................................ ...................... ...... --- ..............
25
APPENDICES......................................................................................................................................
2G
A. PEG links ........................................................................ ...... ....... ...~.......... ....... ..............
2G
B. Complimentary Cable Drops and Service .............................................. ............................... 26
2
Ordinance 3245 Exhibit A
SECTION 1. GRANT OF FRANCHISE
1.1 Grant, The City of Port Townsend, Washington (hereinafter "City) enters into
this agreement with Wave Division 111, LLC. (hereinafter "Franchisee") for the provision of cable
service within its boundaries. The City hereby grants t8Franchisee anon-exclusive Franchise
to operate a Cable System to provide Cable Service inthe City, and to use the streets and
public ways to |DStaU. construct, nep8|[. [gCOnstrUc1. D1@|Ot@|O in, on, over, under, upon, across
and Q|OnQ any street o[highway, such poles, vvines, uob|e, conductors, duot8. SOndui1, vau|ts,
nnanho|ms, annp|ifiene, mpp|iances, attmohments, and other property as may be necessary and
appurtenant tothe Cable System for that purpose, subject tothe terms and conditions ofthis
agreement, and applicable law.
1.2 Ternl The Franchise granted hereby shall expire ten (1O)years after its
Effective Date (as defined in Section 1.3) unless lawfully terminated in accordance with its terms
orother applicable law.
1.3 Effective Date. This Franchise shall become effective ODthe 31stday
6]||Ovving its adoption ("Effective [}ate"), provided that prior to that date the Franchisee: (m)
accepts in vVr|t|DQ this Franchise; and (b) provides all documents required by the Franchise. If
Franchisee has not satisfied these conditions prior tothe 31st day following its adoption, then
the City may, at its opUon, declare the Franchise forfeited, and of no force Or effect.
1.4 Franchise Area. The Franchise area for which this Franchise is granted
consists of all areas located within the Port Townsend City limits as they are CODSt|tWt8d OO the
Effective Date ofthe Franchise ormay inthe future be constituted,
1.5 Effect of Acceptance, By accepting the Franchise. the Franchisee: (a)
acknowledges and accepts the City's legal right tOissue and enforce the Franchise; (b)agrees
that it will not oppose intervention by the City in any proceeding affecting the enforcement of its
rights under this franchise; (C) accepts and agrees to all provisions contained herein; and (d)
agrees that the Franchise was granted pursuant to processes and procedures consistent with
Federal and State |avv, and agrees that it will not raise any claim ordefense ƒo the contrary.
1.6 Riahts Reserved, The rights granted inthis Franchise are subject 1othe
City's exercise of its police powers and nothing in this Franchise shall be read to limit the
exercise ofthose powers. The City, among other things, does not waive requirements Of
various codes, ordinances, and resolutions, including zoning codes and codes regarding
building permits and fees. or time Or manner of construction, all of which shall apply. Any
generally applicable fees or charges assessed by the City, so long as they are consistent with
applicable law, shall be paid in addition to the Franchise Fee required under this Franchise.
1.7 Franchisee Compliance and Relationship to Other Laws.
A. Franchisee's Franchise iasubject bzall lawful terms, conditions, and
provisions ofthis Franchise; ofPort Townsend Municipal Code Chapters 5.1 and 5.15y`Port
Townsend Master Cable Television Ordinance" and "Cable Television Service Regulation") as
the same is now or hereafter amended by |8wVfU| exercise Qfthe City's police powers; and of the
Communications Act Df1934. as amended by the Cable Consumer Protection Act Of 1884. the
Cable Communications Consumer Protection and Competition Act of 1992, and the
Telecommunications Act of19SO.amthe same isnow orhereafter amended.
3
Ordinance 3245 Exhibit A
Page 5 of 41
B. Franchisee's rights hereunder are subject tQthe lawful exercise Ofthe
City's police power. Nothing |Othis Franchise shall preclude orprohibit the City from enacting
any ordinance in the interest of public hea|th, safety and Vva|bano, which may impact the
Franchisee in its operation of the Cable 8ystem, as a proper exercise of the City's police power.
Franchisee acknowledges that the City may modify its [e0u|@tn[y pO||cy8S by |aVVfU| exercise of
the Qh/'S police powers throughout the term of the Franchise.
C. Franchisee reserves all rights itmay have tmchallenge the lawfulness of
any City Code provision ormodification whether such rights arise in contract oratlaw. The City
reserves all its rights and defenses to such challenges whether arising in contract Ormt |avv.
D. It is the intent of both parties that each podv shall enjoy all rights and be
subject toall obligations ofthis Franchise for the entire term ofthe Franchise and tothe extent
any provisions have continuing effect, after its expiration. Hovveve[, both parties recognize that
the tSChD0|OQy of cable television and related technologies are in a state of flux and that
regulatory conditions and franchise rights and povveru, may change drastically during the term of
this Franchise. Should such changes occur, the City and Franchisee shall negotiate in good
faith to amend the Franchise to preserve the rights and obligations of the City and Franchisee
hereunder t0the fullest extent consistent with such changes.
1.8 Affiliates Must Comply. Any affiliate orjoint venture Vrpartner Ofthe
Franchisee involved inthe management or operation Ofthe Cable System |Dthe City that would
constitute a Cable Operator of the Cable System is subject to the limitations of and shall comply
with the terms and conditions ofthis Franchise. The Franchisee shall befully liable for any act
or omission of an affiliate that controls the Franchisee or is responsible in any manner for the
management of the Cable System that results |Da breach Vfthis Agreement oraviolation ofthe
Port Townsend Municipal Code, as if the act or omission was the Franchisee's act or omission.
1.9 Legal Quafifications. The Franchisee affirms that itmeets all ofthe legal
qualifications set forth inPTyWC 5.14.O4O(/A(5),and iO47U.8.C. §533.
1.10 Compefitive Equity,
A. The City reserves the right togrant additional franchises or similar
authorizations to provide Video Programming services Via Cable SySt8rnG or similar wireline
systems located in the Right of Way. The City intends to treat wireline competitors in a
nondiscriminatory manner in keeping with Federal |ovv. If, following the Effective Date of this
Franchise, the City grants such an additional franchise or authorization to use the Right of Way
toprovide such services and Franchisee believes the City has done s0ODterms materially more
favorable than the obligations under this Agreement, then the provisions of this subsection 1. 10
will apply,
B. As part of this Franchise' the Qb/ and Franchisee have [nUtu8Uy agreed
UpOO the following tg[[DG as a COOd|t|On of granting the Franchise, which 1emnm may place the
Franchisee at e competitive disadvantage if not required of wireline competitor: Franchise
Fees, PEG funding, PEG /tcoema Channels, service availability naquin8nn8nts' records and
napnrtm, and customer service obligations (hereinafter "Material Obligations"). The City and
Franchisee agree that these Material Obligations bear no relationship to the technology
employed by the Franchisee or o wireline competitor and as such can reasonably be expected
to be applied fairly onrnaa all wireline competitors. The City and Franchisee further agree that
this provision shall not require a word for word identical franchise or authorization for
M
Ordinance IJ4JExhibit A
competitive equity yolong anthe regulatory and financial burdens Vn each entity are generally
equivalent.
C. Within one hundred and eighty (180) days of City codification nfawireline
competitor's franchise or similar 8U1hQr|Z8UOO. Franchisee must notify the City in writing of the
[N8tSri@| Obligations in this Franchise that exceed the Material Obligations of the wireline
competitor's franchise or similar authorization, Within sixty (60) days of receiving such notice,
the City and the Franchisee shall meet to discuss the franchise modifications sought by the
Franchisee. The City shall have one hundred /12O\days t0reach agreement with the
Franchisee Vrdispute the claims made bythe Franchisee. In the event the City disputes that
the Material Obligations are different, Franchisee may bring an action in Federal or State court
for adetermination gs to whether the Material Obligations are different and as to what franchise
amendments would be necessary to remedy the disparity. A|ternative|y. Franchisee may notify
the City that it elects to immediately commence the renewal process under 47 U.S.C. § 546 and
to have the remaining \ornn of this Franchise shortened to not more than thirty (30) months.
D. Nothing inthis subsection 1.10 is intended t0alter the rights or obligations
of either party under applicable Federal or State |aVV, and it Sh@U only apply to the extent
permitted under applicable law and FCC orders. |nnoevent will the City berequired torefund
or to offset against future amounts due the value of benefits already received.
E. This provision does not apply |fthe City ioordered orrequired tOissue e
franchise on different terms and conditions, or it is legally unable to do so; and the relief is
contingent on the new Cable Operator actually commencing provision of service in the market to
its first customer. Should the new Cable Operator fail to CODt|DOOus|y provide service for 8
period of six /M\ months, the City has the right to implement this Franchise with its original terms
upon one hundred eighty (18O) days' notice to Franchisee,
F. This Section does not apply to open video aystenms, nor does itapply \o
common carrier myatannm exempted from franchise requirements pursuant to 47 U.G.C. § 571; or
to systems that serve less than five percent (5%) of the geographic area of the City; or to
systems that only provide video services via the public Internet.
1, 111 0 101111
2.1 This Franchise shall beknown and be cited aathe "City ofPort Townsend and
Wave Division |O,LLC Franchise AureemeDt" The definitions set forth inPort Townsend
Municipal Code Chapter 5.14 ("Port Townsend Master Cable Television Ordinance") pertain to
this Franchise Agreement and shall berelevant tOthe purposes and meaning Ofthis Franchise
AQ[8eDleOL In addition, the following terms, phrases, words and their derivations have the
meaning given herein.
"Cmb|mAact''mhmUrefartotheCnb|eConlnmunicabonePoucyAotof1984.47U.8.C.8
521 G1 seq.' on amended by the Cable Television Consumer Protection and Competition Act of
1992, the Telecommunications Act of 1996, and as it may be further amended during the term
of the Franchise.
5
Ordinance JJ4JExhibit A
"Citv."when used to refer tongeographic area, means the City of Port Townsend.8
political subdivision of the State of Washington, in its present incorporated h]0D or in any later
necogn|zed, consolidated, enlarged, or reincorporated fD[no; when used to refer to an action
taken byanentity, the term refers tothe governing body Ofthe City ofPort Townsend O[any
entity authorized toact onits behalf.
"Enabling Ordinance" or'`Pl[N8C"means the Ordinance ofthe City Council ofthe City
of Port Townsend known as Port Townsend City Municipal Chapter 5.14 ("Port Townsend
Master Cable Television Ordinance").
"Franchise Agreement" or or ''Frmnchise" shall refer to this contract between the City
and the Franchisee, entered into in accordance with the terms of the Port Townsend Municipal
Code.
"Fronoh|see° means Wave O|V|s|O0 |||. LLC. the entity tOwhich this Cable F[@DChiS8 is
granted bythe Port Townsend City Council, and its lawful and permitted successors, assigns,
and transferees.
"Normal Business Hours" means those hours during vvh|oh most similar businesses in
the community are open tOserve customers. In all Cases, Normal Business Hours shall include
some evening hours atleast one (1)night per week and some weekend hours.
22 All words appearing inthis Franchise that are identical to the words defined in
Section 2.1shall have the meanings set forth inSection 3.1. 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 plurai number. The words
"sh8/|''and "vv|||"are mandatory and "noay°|spermissive. Words not defined herein shall b8
given the meanings set forth in the Cable Act, or if not defined therein, the meaning set forth in
the PTMC Section 5.14.020. and, ifnot defined therein, shall be given their common and
ordinary meaning.
3.1 The Franchise does not confer rightsotherthmnaoprovidedbvthinFnanchise
Agreannent, oras mandated by Federal or State |evv
3.2 No privilege or exemption is granted or conferred except those specifically
prescribed herein.
3.3 The City may delegate its authority except as prohibited by State |evv' except the
City Council shall have sole authority |nconduct any required hearings regarding any alleged
violations ofthis Franchise byFranchisee and may not delegate any authority toissue any
decision regarding such alleged violations toany other person V[entity.
3.4. In addition to any immunities that the City may have under Federal or State law,
and except omotherwise required byapplicable law, the Franchisee shall have DOrecourse
against the City for any loss, cost, expense, Vrdamage arising out Ofany provision or
requirement 0fthis Franchise Agreement O[Enabling Ordinance, O[because Oftheir
A
Ordinance 3245 Exhibit A
Page 8 of 41
enforcement or nonenforcement, except for claims arising from: (a) the City's breach of the
Franchise Agreement; or (U) the gross negligence or willful misconduct of the City or its
representatives.
3.5 The Franchisee shall atall times besubject tmthe lawful exercise ofthe police
power ofthe City, and its other |mvvhu| authority.
3.6. This Franchise concerns the provision of Cable Services only. Nothing in this
Franchise is intended to expand or contract the City's rights to regulate non -Cable Services nor
the Franchisee's right to provide |evfu| Sen/iCeS over its Cable System.
3.7 Nothing in this Franchise Agreement shall be read to create an expectancy of
renewal ort0|Dany respect entitle the Franchisee torenewal orextension ofthis Franchise,
except aamay baexpressly required byapplicable law.
3.0 Any privilege claimed under any Franchise by the Franchisee in any street or
other public property shall besubordinate toany lawful occupancy ofthe streets o[other public
property prior 1nMarch 2.2U2Osubject tothe Port Townsend Municipal Code,
SECTION 4, NON-EXCLUSIVE FRANCHISE AND COMPETITION ENCOURAGED
4.1. This Franchise and the rightit grants to use and occupy the public right ofway io
not exclusive and does not explicitly or implicitly: (a) preclude the issuance of other franchises to
operate Cable Svatenna within the City; /b\ affect the City's right LV authorize use of the public
right of way by other persons to operate Cable Systems; or (c) affect the City's MQMt to itself
construct, operate Vrmaintain a Cable 8yGtemO,
SECTION 5. NO WAIVER
5.1 The failure o[the City, upon one ormore occasions, toexercise aright orto
require compliance or performance under this Franchise or any other applicable law shall not be
deemed to constitute a waiver of such right or aVVaive/ Of C0OOp||aOce or p8rforrOaOce. UO|eSS
such right has been specifically waived iDwriting.
5.2 Waiver ofGbreach ofthis Franchise orthe Enabling Ordinance |snot awaiver of
any similar ordifferent breach. Neither the granting 0fthis Franchise nor any provision herein
shall constitute a waiver or bar to the exercise of any governmental right or power of the City,
including without limitation the right of eminent domain.
61 Customer Protection. The Franchisee hereby represents and warrants that it
meets or exceeds the requirements for customer protection established by the City and
7
Ordinance 3245Exhibit A
Page 9 of 41
attached hereto as Appendix C.The Franchisee agrees that it shall abide by the terms and
conditions therein, as the same may belawfully amended orsupplemented from time totime
and besubject tothe remedies set forth inSections 14through 16ofthis Agreement for
violations of the customer protection standards, as amended or supplemented.
6.2 Privacy. The City and the Franchisee shall comply with applicable law
regarding subscriber privacy and the collection and use of subscriber information.
6.3 Maintenance and CqMplaints.
A. The Franchisee shall render efficient service, make repairs promotly, and
interrupt service only for good cause and for the shortest time possible.
B. Complaints from customers regarding cable service provided by
Franchisee or regarding Franchisee's operations under the terms of the Franchise which are
made orescalated toFranchisee's customer service center shall belogged. The Franchisee will
maintain osummary ofcomplaints for three (3)years. GUOlnn@ries ofthe complaints shall be
provided tothe City onrequest.
C. The Franchisee shall maintain and repair its facilities sufficiently to
comply with this Franchise and the City's Customer Service Standards under normal operating
conditions and to respond to subscriber complaints, loss of service, or requests for service.
D. All subscribers and members ofthe general public inthe City may direct
complaints and inquiries regarding the Franchisee's service or performance to the City. After
the date ofthis Franchise, the City may establish o Cable Commission as a duly authorized City
agency. In such event, subscribers and members of the general public in the City may direct
complaints and inquiries to such Cable Commission. Franchisee will, in gond faith' work with
the Cable Commission to respond to such inquiries and complaints.
pjj
A. Throughout the term ofthis Franchise, the Franchisee shall fully comply
with applicable law regarding equal employment opportunity. In the event the Franchisee isat
any time determined hvthe FCC not tobeincompliance with the FCC rules orregulations, the
Franchisee shall notify the City within 15 days of its notice of such noncompliance from the
FCC.
B. The Franchisee shall not, in its rates orcharges, or in the availability of
the services or facilities of its Cable System, or in any other respect, make or grant undue
preferences or advantages to any subscriber, potential oubmcribar, or group of subscribers or
pOtgOt|8| subscribers OD the basis ofage, raca, cnaed, reHgion, color, sex, national origin, marital
Gt8[uS` BexU@| O[|ent8U0n' physical or mental diGabi|ib/, or political affiliation, nor shall the
Franchisee subject any such persons orgroup ofpersons toany undue prejudice orony
disadvantage. The Franchisee may offer promotional discounts toattract ormaintain
subscribers provided that such discounts are offered on a non-discriminatory basis to similar
classes urtypes nfsubscribers throughout the Franchise Area. Subject toFCC rules and
regulations, this section shall not prohibit the Franchisee from publishing different rates for
different classes of subscribers, so long as the rates are identical for every subscriber in each
class. Different rates may be offered to commercial nrbulk rate subscribers.
Ordinance 3245 Exhibit A
Page 10 of 41
C. The Franchisee shall not deny cable service to any group ofpotential
subscribers because of the income of the residents of the area in which the group resides.
D. The Franchisee shall comply with all applicable federal, state, and local
laws oODceDliMQ the aCceSS|bUib/ of its o8n/ioos to people with disabilities. All programming
received bythe Franchisee with closed -captioning shall beretransmitted bythe Cable System
including the closed -caption signal,
0.5 Upon request, the Franchisee shall provide
parental control capability to any subscriber.
SECTION 7. SYSTEM FACILITIES, EQUIPMENT, AND SERVICES,
71 Cable System Design and Functionality
A. As ofthe effective date of this Agreement, the Franchisee operates,
maintains and makes available to all residents of the City its existing 750 MHz Cable System
fed by means of fiber optic cable deployed from the Franchisee's Headend to Franchisee's fiber
optic nodes, tying into Franchisee's coaxial Cable System serving subscribers.
B. The Franchisee shall transmit all its Signals toSubScrb8rSinstereO.
provided that such Signals are furnished to the Franchisee in Stereo.
C. Two-way activated capacity supporting interactive services, which may
|OC|Ude but not be limited to digital video recorders, shall be operated and maintained in the
Cable 8y8teN0,
D. The Heodendhas 24-hou(backup power supply. Each node power
supply has a minimum three-hour backup and hub sites and optical transfer nodes have three-
hour backup power supplies. Such equipment has been constructed and will bemaintained SO
as to cutin automatically upon failure ofthe commercial utility power, and tOrevert automatically
to a standby mode when alternating current power returns and complies with all utility and other
safety rggU|ahnnS to prevent the alternate power supply from powering o "dead" utility line in
order t0prevent injury tOaDypersUn.
E. The Cable System delivers and shall continue todeliver throughout the
term of this Agreement high definition ("H[}'') Signals.
F. Franchisee shall install and maintain necessary equipment to ensure that
all closed captioning programming received bythe Cable System shall include the closed
caption signal as long as the closed caption signal is provided consistent with FCC standards,
G. Franchisee agrees to maintain the Cable System with sufficient capability
and technical quality tocomply with the requirements ofthis Franchise and which meets or
exceeds current and future FCC technical quality standards at 47 C.F.R. § 76 Subpart K. or any
future section sodesigned bythe FCC.
9
Ordinance 3245 Exhibit A
Page 11 of'41
H. The Franchisee shall comply with all applicable laws, as they may from
time to time be amended, concerning system compatibility with Subscribers' consumer
electronics equipment.
7.2 Interconnection
A. Interconnection of Franchisee's System. On the effective date of this
Agreement, the Cable System operated by the Franchisee serving the City of Port Townsend
receives a PEG feed from the City's designated Access Provider at a hub facility and sends the
PEG feed to Port Townsend and other areas served by Franchisee in Jefferson County. The
Franchisee agrees that it shall at minimum maintain the level of interconnectivity described
herein throughout the life of this Franchise. The interconnection shall be capable of receiving
and delivering PEG access programming to the interconnected communities. There shall be no
charge for the interconnection for PEG access programming.
B. Cooperation. The City understands that interconnection requires
cooperation from other Cable System Operators. The City shall make every reasonable effort to
assist Franchisee in achieving the cooperation necessary to realize interconnection.
C. Franchisee Not a Common Carrier. Nothing in this Agreement shall be
deemed to require the Franchisee to assume the status of a common carrier as defined under
applicable law.
7.3 Reserved
7.4 Cable Systern UpgLade
Franchisee shall comply with City permitting processes and regulations during
any future construction, rebuild, or upgrade of any portion of the Cable System.
7.5 Performance Testing
A. Franchisee shall perform the following tests on its Cable System:
All tests required by the FCC; and
2. All other tests reasonably necessary to determine compliance with
technical standards adopted by the FCC at any time during the
term of this Franchise.
B. Franchisee shall maintain records documenting the results of its Cable
System tests described above, performed by or for the Franchisee. Such test results shall be
available for inspection by the City upon request with reasonable prior notice.
C. Tests may be witnessed by representatives of the City, and Franchisee
shall provide the City reasonable notice of the time and place of each test. The City may
conduct independent tests of the system for which the Franchisee shall give its fullest
cooperation. Franchisee shall be required to take prompt corrective measures to correct any
system deficiencies and to prevent their recurrence.
7.6 System Insvections, The City may inspect the Franchisee's Cable System and
any construction or installation work performed under this Franchise at City expense.
10
Ordinance IJ4JExhibit A
Page 12 of 41
77 Other Construction Procedures. The Franchisee shall comply with federal,
state, and local laws with regard to the construction and operation Ofthe Cable System.
A. The Franchisee shall provide gsemi-annual construction report bathe
City in a fV[O0 reasonably acceptable tOthe City when major construction projects -- such as a
Cable System upgrades, rebuilds, plant extensions of one mile or more, or interconnection
prnjects—arabeingundmrtaken.
B. The Franchisee mhe|| notify City residents in any construction area at least
one day inadvance before first entering onto such resident's property 10 perform any work in
conjunction with Cable System construction and Sh8|| additionally notify affected residents in
advance ofany work which will involve excavation, replacement ofpoles, n[tree trimming.
C. The Franchisee shall ensure that any contractor orsubcontractor used by
the Franchisee for work and conotruut|on, operation, or repair of Cable System equipment must
be properly licensed under laws of the State and all applicable local ordinances.
D. The Franchisee shall be responsible for ensuring that the work of
contractors and subcontractors is performed consistent with this Franchise Agreement and
applicable |avvo, shall be responsible for all acts or onniSs|ODS of contractors or SVbCOOt[@CtOrS,
shall be responsible for promptly correcting @CtS O[omissions by any contractor or
SUbc0Ot[8[tor. and Gh@|| implement aqu@|ity control program to ensure that the work is properly
performed. This section is not meant to alter tort liability ofFranchisee tothird parties.
E. The Franchisee shall make available as -built and design maps inon
electronic format commonly used by the industry for the City's review at the local office of the
Franchisee after the completion ofsystem construction iOany geographic area.
F. Within thirty (30) days of completion of Cable System construction in any
geographic area, the Franchisee shall make available tothe City upon reasonable request maps
showing the actual location oYadditions orextensions toits lines.
7.8 Systern Maintenance.
A. interruptions to be Minimized. Whenever possible, the Franchisee
shall schedule planned maintenance so that activities likely to result in an interruption of service
are per -formed during periods of minimum subscriber use of the Cable System. The Franchisee
shall make best efforts to minimize interruptions of service consistent with reasonable and
customary construction practices.
B. Maintenance Practices. In addition to its other obligations, the
Franchisee shall use components ofgood and durable quality and follow high quality industry
maintenance standards.
7.9 Systern Performance. The Cable System shall meet orexceed the
standards set forth in 47 C.F.R. 78 subpart K ("FC{} Standordn"), as those standards may be in
effect otall times.
7.10 The Franchisee shall throughout the
Franchise term incorporate improvements in technology to reasonably meet the needs and
|Dt8[eGtG of the community in light of the costs thereof.
11
Ordinance J24JExhibit A
Page 13 of 41
7.11 Service Availability.
A. The Franchisee shall nonstnuct, operate, maintain and upgrade its Cable
System so that it is able to provide service to all areas located in the Franchise Area described
in Section 14ofthis Franchise, subject to Section 7.11.B.1.
B. System Extension Reguirements.
Franchise Area Boundaries. The Franchisee must extend service upon request for no charge
other than the then -prevailing normal iOSt@U[diOn charge and/or the long drop charge where
there isthe equivalent of 20 homes per linear strand mile measured from the Franchisee's
closest trunk line or distribution cable location.
Cost Sharing. In the event that anew subscriber requesting service does not meet the criteria
for service described in Section 7.11.13.1. above, the Franchisee will extend its Cable System at
commercially reasonable rates based upon the circumstances in place at the time.
Subscriber Drops, The Franchisee shall not assess any additional cost for service drops of
one hundred fifty (150) feet or less unless the Franchisee demonstrates to the City's satisfaction
that extraordinary circumstances justify 3higher charge. Where @ drop exceeds one hundred
fifty (150) feet in length, the Franchisee may charge the subscriber for the difference between
the Franchisee's actual costs associated with installing a one hundred fifty (150) foot drop and
the Franchisee's actual cost ofinstalling the longer drop,
UndergrMnding,,of Drops., |nany area where the Franchisee would be entitled toinstall a
drop above-grmund.the Franchisee will provide the subscriber the option tohave the drop
installed underground but may charge the subscriber the difference between the actual cost of
the aboveground installation and the actual cost of the underground installation,
Time for Extension. The Franchisee shall extend service a8described herein b3any Person
who requests it:
|fthe person requesting service islocated inthe Franchise area and service can baprovided by
activating or installing a drop to that location, service shall be provided within seven (7) days of
the request;
If the person requests service in an area which does not meet the criteria described in 7.11 R1,
the Franchisee shall extend service based upon mutually agreed upon terms and schedule
between the person requesting service and the Franchisee.
7.12 Public, Educational and Government Use.
A. The City may designate another
government entity, or a nonprofit organization incorporated in the State of Washington as a PEG
12
Ordinance 3245 Exhibit A
Page 14 of 41
access provider ("DeoignatedAccess Provider") tocontrol and manage the use ofany nrall of
the access channels and/or resources provided by the Franchisee under this Agreement.
B. On the Effective Date ofthis
Franchise, the Franchisee provides two (2) channel for PEG Access purposes.
1. The bandwidth that ieprovided bythe Franchisee for PEG Access
purposes must be capable of transmitting signals in any commercially standard format and can
be used to transmit video and audio signals and other information (ino|uding, by vvey of example
and not limitation, any secondary oudio, closed captioning, text, digital information, and high
definition signals). The PEG Access Channels must beviewable byall subscribers regardless
of the tier of service to which they subscribe without the need for any equipment other than the
equipment that asubscriber requires toreceive their chosen service tier. The PEG Access
Channels mho|| have the a8rn8 quality level and tapanity, the same functionality, and in the
same format as provided to the Franchisee by the City or its DAP without material degradation.
2. The City orits DAP shall provide the PEG Access Chonno|(s)in
an HOformat orany commercially available format. Franchisee shall transport and distribute
the Access Programming without degradation toSubscribers. Franchisee shall provide all
necessary equipment from: (1) the demarcation point at the origination location of the PEG
Access Channel(s); (2) at its Headend and/or hub sites,- and (3) throughout its distribution
system todeliver the PEG Access Chomn8|(S)tVSubscribers.
3. Franchisee shall ensure that any PEG Access Channels can also
bmviewed bySubscribers inthe signal format provided bythe City/DAP tothe Franchisee,
regardless ofthe tier ofservice received bythe Subscriber. PEG Access Channels shall have
the same quality and functionality as local broadcast channels provided to Subscribers in that
same format.
C. Reguirements Regarding Rules and Procedures for Use of PEG Access
1. The Franchisee may not exercise any editorial control over the
content of programming on the designated PEG Access Channels (except for such
programming the Franchisee may produce and cablecast on the same basis as other PEG
Access Channel uaens).
2. All programming transmitted over PEG Access Channels shall ba
noncommercial in nature. Program materials to be distributed on PEG Access Channels shall
contain no advertising or cunnnnen:ia| content for which consideration is received by the City or
the OAR The City and Franchisee agree that the City. the DAP, or an access program provider
may include acknowledgements for persons or entities which sponsor or underwrite aprogram
inamanner similar tothe sponsorship information provided onthe Public Broadcasting System.
O. PEG Channel Promotion.The Franchisee shall, throughout the term of
this Fr8nmhiae, provide the following promotional Gervioe8, free of any charges:
1, Program schedule information for each PEG access channel shall
be listed in all print program guides provided by the Franchisee to mubsnribers, in the same
manner as the program schedule information for local broadcast cable channels are listed.
IN
Ordinance JJ45Exhibit A
Page 15 of 41
2. The parties acknowledge that the Franchisee contracts with
third -party electronic programming guide vendor ("EPG provider") to provide on-screen and on-
line program listings. The Franchisee shall make available to the City or its DAP the contact
information for that EPG provider. Franchisee oho|| inform the EPG provider that the City and
its DAP are authorized to provide programming information for the PEG access channels. The
City or its OAP gho|| be responsible for providing programming information to the EPG provider.
3. Once annually, the Franchisee shall allow the City 0[its DAP 1D
submit m tdU stUffe[, created at the DAP'm expense, to be inserted into all customer statements
within the Franchisee's Cable System in the Cib/. Franchisee may establish reasonable size
restrictions for insertion in customer statements for use by the C|h/ or the OAP. In consideration
of regulatory notification requirements, the Franchisee has final approval on the dates for
insertion.
E. PEG Channel Locations.
The PEG Access Channels shall belocated onFranchisee's Local
Broadcast Service tier within reasonable proximity to each other and to local broadcast
channels |nthe Cable System's channel lineup and available admocharge h3the City and its
2. PEG Channel Relocation. |nthe event Franchisee |Srequired bm
Federal law or regulation to change the channel number of the PEG Access Channels.,
Franchisee shall provide thirty (30) days advance notice to the City, the OAP, and its
subscribers. 8hOU|d Franchisee decide to change the channel number for any other reason,
F[8OCh|Sae shall notify the City, the DAP, and subscribers of such m discretionary change at
least sixty (OD)days prior tothe date ofthe proposed change. The Franchisee shall use
notification techniques such as inserts in subscriber billings, display advertisements in local
newspapers and the customer messaging function of its set-top units to provide customers the
new channel assignments. |fthe notification provided tothe City and the DAP with regard toe
discretionary move is consistent with the deadline listed above, the Franchisee shall pay a fee
mfone thousand dollars /$1.000\tothe entity designated bythe City tQmanage the PEG access
nhonne|(S)being moved. |fthe Franchisee fails tOprovide notice consistent with the
discretionary move deadline listed above, the Franchisee shall pay a fee of two thousand dollars
($2.000). The channel relocation fee paid to the DAP shall be used to replace print materials,
channel ID's, and other promotional materials (as well as other video materials) containing the
old channel nunnb8r(S).and [ootherwise promote the new location ofthe channel. Franchisee
will not move any of the PEG access channels more than once in o three-year period, unless
required to bylaw or regulation.
F. PEG Access Grants and Sup prt for Access Channels.
1. Franchisee shall make contributions h3the City toestablish afund
to purchase equipment for PEG capital equipment ("PEG Grant"). The contributions shall be in
the amount of$ .45 per customer per rnonth, to be adjusted upwards for inflation every five /5\
years based on the GnmSS National Product Price Index (GNP -P|) published by the U. G.
Department ofCommerce nrthree percent (3%).whichever iSless. The contributions shall b8
paid to the City quarterly, on or before the 30th day of each January, April, July and October, for
the preceding three (3) calendar months. Such payment is not in lieu of franchise fees or other
14
Ordinance 3245 Exhibit A
Page 16 of 41
taxes which may lawfully be assessed by the City and shall not be deducted from any such
payments. Franchisee may, but is not required to, pass all contributions through tosubscribers
onopro-rata basis.
2. The Franchisee shall submit tothe City olate fee onPEG Grant
payments that are submitted after the due date asdescribed above. Late fees for late payment
Ofthe PEG Grant shall be computed |Othe same manner aslate fees for the late payment of
Franchise Fees @sdescribed in 8ent|OO 10.3 Ofthis Agreement.
3. The PEG Grant shall bepaid inaddition toany other fees,
charges, orassessments required bythe City. Franchisee agrees that the PEG Grant made
pursuant to this Section 7.125. does not fall within the definition of Franchise Fees and shall not
be offset against Franchise Fees that the Franchisee owes under this Agreement.
4. |fFranchisee makes changes toits Cable System that necessitate
modifications to PEG Channel transmission facilities and equipment (including but not limited to
the upstream pathe). Franchisee shall provide thirty (SO) days advance notice of such changes
to the City and its Designated Access Providers. In addition, F[@OCh|See Sh8|| provide any
additional or modified faC|||t|8S or equipment necessary to implement such modifications within
sixty (OO)days ofthe date that the system changes are tobemade, nothat PEG signal
transmission facilities and equipment may be used and operated as intended and without
interruption, including, among other things, transmission oflive and taped communications io
subscribers.
5. The parties agree that all payments and costs Ofservices provided
bythe Franchisee tothe City insupport VfPEG Access and other in-kind commitments shall not
be deemed "Franchise Fees" within the meaning of Section 622 of the Cable Act (47 U.S.C.
542). Any PEG Access Qr8DtS' support feeS. or any |D-h1Od services required by this Franchise
are intended to cODfDrOO to provisions of Section 611 of the Cable Communications Policy Act of
1S84oaamended, and are not tobeurtoconstitute Franchise Fees.
G. General
7.13 No City Control. During the term Ofthis Franchise, the City may not prohibit
the Franchisee from providing any pnDg[@0 or class of programs, or otherwise censor
communications over the Cable System, except that nothing inthis section shall beread to
authorize the Franchisee to engage in communications which are prohibited by law.
7.14 Emergency Alert System.
A. Franchisee Sh8U. at all tiO08S during the term of the Franchise, provide
andnnoinbainunErnargenuyA|ertsvotenm(^EAS~).00noistentvvithapp|ioabkaFedena||avvemnd
regulations including 47 C.F.R., Part 11, and any Washington State Emergency Alert Plan
15
Ordinance lJ45Exhibit A
Page 17 of 41
01,
8.1 This Franchise does not confer the right to place or maintain facilities in any
particular location, or in any particular manner, or at all times in the rights of way or any other
property occupied pursuant to this Franchise.
8.2. Without limiting the provisions of Sections 1-3:
A. Franchisee agrees that its occupation ofthe rights ofway and such
property iosubject tOthe supervision and control ofthe City.
B. Franchisee agrees to move' relocate nrremove its facilities as directed by
the City upon reasonable notice. |fthe Franchisee fails torelocate orremove its facilities ma
directed by the City within the time agreed, the City may perform the work required and
Franchisee shall pay the reasonable cost thereof. |nthe case ufanemergency, the City may
mnove, re|ouo18 or remove Franchisee's facilities without notice to Franchisee. Except as
specifically stated, any action that the Franchisee may be required to take shall be at
Franchisee's reasonable expense.
C. The construction, inetaUoUon, operation, and maintenance of the Cable
System and all parts thereof shall be performed in an orderly and workmanlike manner. All
such work shall be performed in and comply with all federal, state, and local laws, regulations
and safety requ|re[nents, including but not |inn|$ed to the regulations of the FCC. the Federal
AV|8t|Vn AdOO|Oist[abon, and the National Electrical Safety Code.
In the event of a conflict among codes and standards, the most stringent code or
standard Sh@|| apply (except insofar asthose standards, |ffollowed, would result in a Cable
System that could not meet requirements of federal, state, or local |avvo; and except for such
minor modifications 8Sare typical inthe indun1ry). The City may adopt reasonable additional
standards after consultation with the Franchisee as required to ensure that work continues to be
performed in an orderly and workmanlike rnannar, or to reflect changes in standards that may
occur during the Franchise term.
SECTION 9. RATE REGULATION
9.1 For rates subject to rote regulation by the Chu all charges to subscribers and
users shall beuniform throughout the franchise area with mwritten schedule offees for all
services offered available upon request. Notwithstanding the foregoing, nothing in this
Franchise ehoU be construed to prohibit Franchisee from reducing or waiving rotes and charges
in conjunction with marketing and promotional oarnpaigns, retention efforts or discounted nsbsa
and charges for the provision of services on a bulk subscription or similar basis. The
Franchisee hereby agrees toprovide each new subscriber with prices and options for
programming services and conditions of subscription to programming and other services.
9.2 The City may regulate Franchisee's rates and charges' except to the extent that
it is prohibited from doing so by Federal or State law.
9.3 The Franchisee will notify subscribers and the City ofany proposed increase a8
least thirty (30) days before any increase is to become effective. The notice will list the FCC
16
Ordinance 3245 Exhibit A
Page 18 of 41
community identifier for the Cable System and the name, address, and phone number of a
contact person ordepartment edthe City.
0.4 The City reserves the right \nprescribe reasonable rates and order refunds, 1D
the extent permitted by applicable Federal or State law.
SECTION 10. FRANCHISE FEES
10.1 The Franchisee shall pay to the City an amount equal to five percent (5%) of the
gross revenues derived from the operation of its Cable System to provide cable services in the
City, or the mgXiDlQDl amount permitted by Federal law, if larger,
10.2 If Cable Services subject to the Franchise Fee required under this Section 10 are
provided to Subscribers in conjunction with non -cable services, Grantee shall allocate revenue
for such bundled services between Cable Services and non -cable services in a fair and
reasonable manner and not in any manner whose purpose is to evade or substantially reduce
Grantee's Franchise Fee obligations tothe City.
10.3 Franchise Fee payments due the City under this provision shall be computed at
thaandofmachc8|endarquarterondeha||bQdueondpeyab|enm|ater1honhJrtv-fixe(45)dmyS
after the end of the calendar quarter. Each payment shall be accompanied by o statement of
gross revenue for the quarter in a format to be agreed upon by the City and the Franchisee.
10.4 Noacceptance ofany payment shall beconstrued @s anaccord that the amount
paid is in fact the correct amount, nor shall acceptance ofpayment be construed as 8 release of
any claim the City may have for further or additional sums payable under the Franchise by the
Franchisee.
10.5 The Franchisee shall submit tothe City alate fee OnFranchise Fee payments
which are received after the due dates madescribed |nSection 1O.3. For each day after the due
date inSection 1D.3.the late fee shall betotal franchise fee amount that isconsidered late,
times an interest rate, bmBS the number ofdays late up to the date of payment to the C}ty. The
interest rote will be determined based upon the Wall Street Journal Prime Rate +3%, divided by
305.tobeupdated for each QU-dgyperiod that the payment islate, The total payment to the
City will be the underpaid franchise fees plus late fees computed in accordance with the section.
Any unpaid late franchise fees will continue to acC[U8 interest in accordance with this section
until such fees plus the appropriate interest are paid to the City.
10.8 The Franchise Fee shall be paid in addition tofees, oharQas, or assessments
required bythe City. The parties agree that all payments and costs ofservices provided bythe
Franchisee tothe City in support ofPEG Access capital commitments shall not badeemed
"Franchise Fees" within the meaning ofSection 822nfthe Cable Act (47U.S.C.542)and shall
not be offset against Franchise Fees that Franchisee owes under this Agreement.
10.7 The City may, no more frequently than once in any twelve (12) month period,
conduct afinancial review tOverify Franchise Fee payments made bythe Franchisee. The City
may use an independent auditor provided that the auditor is subject to a nondisclosure
agreement that isreasonably acceptable tothe Franchisee. The Franchisee will provide the
17
Ordinance JJ45Exhibit A
Page /yof41
records required by the {}hv in reasonably sufficient detail to conduct the fiOgOda| review h] the
City, electronically or at a location directed by the City.
10.8 When the Franchise terminates for any reason (other thanthmu8htheiaGuance
of a renewal or superseding Franchise), the Franchisee shall file with the City within ninety (90)
calendar days of the date its operations in the City oease, a financial statement certified by e
certified public accountant or the Franchisee's chief financial officer, showing the gross
revenues received by the Franchisee since the end of the previous fiscal year. Adjustments will
be made at that time for Franchise Fees due to the date that the Franchisee's operations under
the terminated Franchise ceased.
11.1 The Franchisee shall establish |nthe City's favor a performancebond inthe
amount of $250,000 to secure the faithful performance of its responsibilities under this
Franchise and toinclude anamount necessary tOcover the removal Offacilities and/or
restoration VfCity facilities within the right-of-way. The pgrfO[Olamne bond shall be issued by a
corporate surety authorized iotransact a surety business iOWashington.
11.2 In the event the Franchisee fails bocomply with its obligations under this
Franchise, there shall barecoverable, jointlyand severally from the principal and surety ofthe
bond, any damnmQ8G or loss suffered by the City as e neau|f, including the full amount of any
compensation, indemnification, or cost of removal or abandonment of any property of the
Franchisee, or the :m{t of completing Or repairing the Cable System construction, Upgrade,
nobui|d, or other work, p|US @ reaSODgh|e allowance for attorneys'fees, up to the full amount of
the bond.
11.3 The performance bond shall contain the following endorsement or a similar
endorsement acceptable to the City:
~This bond may not becanceled, or allowed to |apae, until aixty/6D\ days after
receipt by the City. by certified mail, return receipt requested, of written nOt|C8 from the issuer
ufthe bond ofintent tocancel ornot torenew."
11.4 The performance bond required bythis Section i8|naddition to, and not inlieu of,
any bonds required consistent with the City's Dnrrna| practices for similar construction projects,
SECTION 12, PROTECTION OF CITY AND ENFORCEMENT — APPROVAL OF
SURETIES: RELATION TO OTHER REMEDIES
12.1 Any insurance, bonds, security fund, and letter ofcredit required by this
Franchise and the Chapter 514PTIVIC shall beissued, respectively, by an admitted insurer in
Washington, acceptable tOthe City, and by efinanoia| institution located in Washington
acceptable to the City.
18
Ordinance 3245 Exhibit A
Page 20 of 41
12.2 The provision and maintenance of any insurance, bonds, security fund and letter
of credit shall not in any respect limit the Franchisee's duty to indemnify the City nor shall
recovery of any amounts in any respect prevent the City from exercising any other right or
remedy itmay have under law orinequity.
SECTION 13. TERMINATION, REVOCATION. FORFEITURE
13.1 In addition to all other rights, powers, and remedies reserved by the City, the City
shall have the @dd0OD8[ Snporate, and distinct rights to revoke the Franchise, or to shorten the
term of the Franchise to a period not shorter than thirty (30) months from the date of the City's
8C1iOO shortening the term, or if the remaining term is thirty-six (36) months or |ess, half the
remaining Franchise term, if:
A. the Franchisee defrauds o|attempts iodefraud the City ursubscribers, or
submits materially misleading or incomplete information tothe City;
B. the Franchisee attempts to evade any material provision of the Enabling
Ordinance and the Port Townsend Municipal Code or applicable law relating to the construction,
operation, orrepair ofits Cable System;
C. the Franchisee violates any rno&*ria| provision of the Franchise or any
material rule, order, or regulation enacted by the City Council in accordance with this Franchise;
O. the Franchisee abandons its Franchise (the Franchisee shall be deemed
to have abandoned its Franchise ifitwillfully refuses tVoperate the Cable System 3srequired
byits Franchise, when there ienuevent beyond the Franchisee's control that prevents the
operation of the Cable System, and where operation would not endanger the health or safety of
the public orprnpertv).
13.2 /nthe event that the City believes that grounds exist for revocation, terrO|DatiVn,
or forfeiture of the Franchise, the City shall notify the Franchisee in VY[iLiDg and follow the
process described inPl-K8C 5.14.238.
13.3 Upon revocation of the Franchise, or upon any other termination of the Franchise
by passage of time or otherwise, the City shall have the right to require the Franchisee to
remove, at the Franchisee's expense, its Cable System from Streets' public property, and any
private property occupied pursuant to the revoked, canceled, or terminated Franchise, The City
shall notify the Franchisee in writing that the Cable System should be removed and identify any
period during which the Franchisee will berequired tocontinue tooperate the Cable System as
provided in Section 16. In re[n0V|Dg its Cable System, the Franchisee shall refill and compact,
at its expenae, any excavation that shall be made and shall leave all mtnaatm, public property,
and private property inaagood acondition aethat prevailing prior tothe Franchisee's removal
ofthe Cable System. The provisions ofSection 14ofthis Franchise Agreement and applicable
sections of the Port Townsend Municipal Code shall remain in full force and effect until the
Cable System |mremoved.
13.4 Upon revocation or termination of the Franchise, the Franchisee may, if the City
declines to acquire ownership of the Cable System pursuant to the Enabling Ordinance, sell or
transfer the ownership of the Cable System, subject to the Port Townsend Municipal Code, so
Ell
Ordinance 32+5 Exhibit
Page 21 of 41
long aosuch transfer ofownership iscompleted within one hundred twenty (120) days of the
date of termination or revocation.
SECTION 14. REMEDIES — LIQUIDATED DAMAGES
141 Because the Franchisee's failure to comply with certain provisions of this
Franchise will result ininjury bJthe City, and because itwill bedifficult tOestimate the extent of
such injury, theChvandtheFr8Mth|Seeherebv@Q[88t0#1afoUoxvinQUquidateddamagen'
which represent both parties' best estimate of the damages resulting from the specified injury.
Damage amounts may be adjusted throughout term of Franchise by the City by resolution to
take into account increases inthe consumer price index. Franchisee waives any claim nr
defense that the liquidated damages provisions in this Agreement are unenforceable as a
penalty or on the basis that they do not fairly approximate the actual damages caused by the
breach. Prior to assessing liquidated damages, the City shall follow the "Notice on
Noncompliance" procedures contained |DPTKAC5.14.23D(A). Franchisee agrees that the
liquidated damage amounts represent the damages to the City and are collectible by and
payable to the City.
14.2 For failure to complete construction or extend service in accordance with the
Franchise: $1'500/day for each day the violation continues;
14.3 For failure to comply with material requirements for PEG Access use 0fthe Cable
System: $75O/dmyfor each day the violation continues;
14.4 For repeated, vviUhJ|. or continuing failure tosubmit rmporto, maintain records.
provide documents orinformation: $50O/dmyfor each day the violation continues;
14.5 For violation ofcustomer service standards: $500 per violation per day;
14.8 For failure to comply with transfer provisions: $1.5DO/dnyfrom the date of any
unlawful transfer; and
14.7 For all other material violations for which actual monetary damages are not
readily ascertainable: $50O/dayfor each day the violation continues.
14.8 The total amount ofliquidated damages due in any twelve (12} month period
shall not exceed $25.00O.
SECTION 15, REMEDIES — CUMULATIVE
15.1 |fthe City elects topursue liquidated denlagesunderSoctkon14mboveform
particular event, the liquidated damages shall bethe sole and exclusive remedy ofthe City for
that particular event. With respect toany event Orcause for which the City does not pursue
liquidated damages, the City reserves all remedies it may have under this Franchise
Agreement, the Enabling OFd|D3MCe' |@vv. and in equity. All nBD1adias provided under this
Franchise Agreement orthe Enabling Ordinance shall be oumu|a1ive, unless otherwise
expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall it
99
Ordinance IJ45Exhibit A
Page 22 of'41
relieve the Franchisee ofits obligations b]comply with the Franchise. Remedies may beused
singly orincombination, PROVIDED HOWEVER, the parties donot intend that the City be
entitled to multiple monetary recoveries for 8 single damage or |OSS. Th8ref0re, notwithstanding
the number or nature of the remedies asserted with respect to monetary damage, the City is
entitled tobemade whole only once,
SECTION 16. REMEDIES CONTINUITY OF SERVICE
16.1 Subscribers in the Franchise Area may receive all available services from the
Franchisee aalong aatheir financial and other obligations totheFmanchiseearesatiefied.
16.2 |nthe event ofthe termination ortransfer ofthe Franchise, the Franchisee shall
ensure that all subscribers receive continuous, uninterrupted service regardless of
circumstances in accordance with this Section 18. At the City's request, the Franchisee shall
cooperate with the City to operate its Cable System for a 12 -month temporary period (the
"Transition Period") fo||ovv|n0 termination or transfer of the Franchise as necessary to maintain
continuity of service to all subscribers and shall cooperate in the development of plans required
toensure mnorderly transition from one operator toanother. During such Transition Period, the
Cable System shall beoperated consistent with the terms and conditions ofthis Franchise.
During the Transition Period, the Franchisee shall be entitled to continue to charge and collect
amounts from subscribers for the services provided.
16.3 Except for outages caused byoForce Majeure event,ifth8Fr8mchiaeefai|s to
operate the Cable System for ninety-six (96) hours during any seven (7) day period without prior
approval ofthe City, orifthe System is abandoned asdefined |DSection 13.1.[).the City may,
atits option, commence enforcement Ortermination proceedings pursuant tOthis Franchise.
164 Franchisee shall comply with applicable law regarding any removal of the Cable
Svmtann. Notwithstanding anything to the contrary set forth in this Franchise, Franchisee may,
with the consent of the City, abandon any underground Cable System property in place so long
anitdoes not materially interfere with the use Vfthe public MghtS-0f-vv@yinwhich such property
is located or with the use thereof by a pUb||C utility orother Cable Operator.
SECTION 17. BOOKS AND RECORDS — INSPECTION
17.1 The City may request information in the control or possession of the Franchisee,
or its affiliates: (1) to enforce the City's rights or assess compliance with the Franchise and
applicable law, other than subject matter addressed by the City's audit rights under Section 10.7
above; (2) in the exercise of any power the City may have under this Franchise or applicable
|evv; or (3) as may be necessary in connection with any proceeding the City may or must
conduct under applicable law with respect tothe Franchisee's Cable System. Franchisee shall
provide rnotmrio|s in response to such requests that are reasonably necessary to determine the
matter at issue. Franchisee may provide these materials in electronic format.
17.2 Subject tOPTMC5.14.21O.any applicable privacy provisions 0fthe Cable Act,
and Washington Public Records Act RCW 42.56, the Franchisee shall provide books and
21
Ordinance 3245 Exhibit A
Page 23 of'41
records for the purposes described above in Section 17.1 and the City shall keep such materials
confidential to the fullest extent permitted by applicable law. Material that the City requires the
Franchisee to produce under this section shall be produced upon reasonable notice, no later
than 30 days after a written request for production or 45 days after such request if the request is
made during the two-week period following the end of a calendar quarter. Requests for
extensions of time to respond shall not be unreasonably denied. Franchisee shall provide all
materials requested by the City electronically or in a manner and location to be agreed upon by
the parties,
17.3 The Franchisee may request that the City treat records containing trade secrets
or proprietary information as confidential under the Washington Public Records Act RCW 42.56.
The Public Records Act and other applicable Federal and State laws shall govern the City's
treatment of any such request.
SECTION 18. PERFORMANCE MONITORING
18.1 Triennial Review
A. During the years which commence on the third and/or sixth anniversaries
of the effective date of the Franchise, and every third year thereafter, the City may commence a
review of the Franchisee's performance under the Franchise. As part of this review, the City
may consider: (1) whether the Franchisee has complied with its obligations under the Franchise
and applicable law; (2) whether customer service standards, technical standards, or bond or
security fund requirements are adequate, inadequate, or excessive; and (3) other issues as may
be raised by the Franchisee, the City, or the public.
B. The City shall conduct at least one public hearing at a lawfully noticed
City Council meeting to provide the Franchisee and the public the opportunity to comment on
the Franchisee's performance and other issues considered as part of this review.
SECTION 19. MISCELLANEOUS
19.1 Time of Essence. In determining whether the Franchisee has substantially
complied with the Franchise, the City and the Franchisee agree that time is of essence.
19.2 Effect of Preemption, Federal and State Law. If the City's ability to enforce
any provisions of this Franchise is finally and conclusively preempted by Federal or State law,
then the provision shall be deemed preempted but only to the extent and for the period the
preemption is required by law. If, as a result of a subsequent change in law or the interpretation
of that law, the provision of this Franchise would again be enforceable, it shall be enforceable,
and the Franchisee will comply with all obligations thereunder after receipt of notice from the
City.
19.3 Force Maieure, The Franchisee shall not be deemed in default or non-
compliance with provisions of its Franchise where such non-compliance was due to causes
beyond Franchisee's control such as war, riots, civil disturbance, floods, other natural
22
Ordinance 3J4JExhibit J
Page 24 of'41
catastrophes, or similar events beyond the Franchisee's control, fire, vandalism, inability to
obtain equipmnent, materials or other supplies due to strike. |Vckout, or work stoppage or any
|mvv' order regulation, direction, action or request of any civil Or military governmental authority.
Franchisee shall notify the City ofthe occurrence or existence of any ofthese events and the
cessation ofsuch event. The Franchisee agrees totake prompt and diligent steps tObring itself
back into compliance and to comply as soon as possible under the circumstances with its
Franchise without unduly endangering the health, safety, and integrity of the Franchisee's
employees or pnoperty, or the hea|th, safety, and integrity of the pUbUC, streets, public property,
orprivate property.
19.4 Written Notice. Notices shall be given as follows:
Tothe City:
City Manager
City Hall
350Madison Street
Port Townsend, Washington 9H368
To Franchisee:
Legal Department
WAVE Broadband
37ODMonte Villa Parkway
Bothell, VVAS8U21
Notice shall bedeemed given three (3)business days after posting with pre -paid postage, first
class mail, or immediately upon hand -delivery to the person identified above, at the address
specified above.
A. Franchisee shall beresponsible k)the City for all damages, coota, k7sseo,
or expenses for the repair, replacement, or restoration of City's p[Oparty, equ|pnnerd, rnatehaha,
structure and facilities ifand t0the extent damaged, destroyed orfound tobedefective as
result of Franchisee's negligence, willful misconduct, or strict liability.
B. Fnanoh|oee, hereby releases, vveivea, covenants not to bring suit against
the Oity, its smbmomtrontona, agerko, pepnaaentadxes, assigns, officmrs, emp|oyees, and elected
officials on any claim, demands, or causes of action, and judgements for: (1) damage to or loss
of property of any person. (including, but not limited to Franch|sea, its agents, officers,
ennp|oy8es, directors and mubnontraoturm. City's agents, officers and employees, and third
parties); and/or (2)death, bodily injury, illness, disease, worker's compensation, loss of
services, or loss of income to any person except to the extent such damage loss death or bodily
injury is caused by the sole and exclusive negligence or wrongdoing of the City.
C. Franchisee, for itself and its aQente, ernp|oyees, dkeotore, offivara,
contractors and subcontractors, hereby agrees to defend, imdennnifv, and hold the Citv, ogem1o,
representatives, enop|oyea8. officers, elected mff|ciu|s, aamigna, contractors and subcontractors,
23
QrdivonceIZ45,Exh&it A
Page 25 of 41
harmless from and against any and all c1ahno. demands, suits, causes of action and
judgements, losses, damagee, and costs, including without limitation, attorney's fees and the
costs of litigation, for: (1) damage to Orloss Ofproperty and/or (2) death, bodily injury, illness,
disease' worker's cVnnpens3d|0m injury, |oSS of services, or loss of income to any person, to the
extent the claims a[|Sg out 0fOrresult from the negligent acts or omissions, willful nlieoonduct,
or strict liability activity of the Fnanchiaee, its agent8, enop!oyaaS, directors, officers, contractors
and subcontractors, and the agents and employees of any contractors or subcontractors as the
proximate cause. The Franchisee further agrees to indemnify, defend, and hold harmless the
City, its officers and employees from any and all claims, onots' judgments, awards orliability to
the Franchisee's Vvvn officers and ernp|oyeeS, including those claims tuwhich the Franchisee
might otherwise have immunity under title 51 RCVV.
D. In the event that any claim Qrloss |sfound byGcourt ofcompetent
jurisdiction or administrative tribunal to be caused by the concurrent fault of both Franchisee
and City, then each party shall be responsible to the extent found by such court or
administrative tribunal.
E. Franchisee shall use its commercially reasonable efforts to ensure that
the terms Ofeach contract awarded toecontractor bythe Franchisee for work inthe public -
rights ofvvayOronCitypnopertytobaumdertokonpurouanttuthis Franchise shall contain
indemnity and insurance provisions whereby the contractor shall indemnify City and provide
insurance coverage tnthe same extent agdescribed inPTKHC5.14�08D.
F. The City shall be responsible to the Franchisee for all damages, cmmtm.
|onmea. or expenses for the repair, replacement, or restoration of Franchisee's proparty,
equipment, materials, structured and facilities, ifand tuthe extent damaged, destroyed nrfound
to be defective as a [eSQ|t of the City's neg|igence, xv|||fu| conduct, or strict liability.
G. The City, for itself and its oQents, employees, nfficers, elected offici8|S.
contractors and subcontractors hereby agree todefend, indennnifv, and hold Franchisee. its
SUCCassona, mgento, rapresentativee, assigns, nOiCecs, ernp|oyeee, and contractors and
subcontractors harmless from and against any and all c|8i[nS, dernmndo, suits, causes of action,
and judgements losses, damages and costs, including without limitation attorney's fees and
costs of litigation for: /1\ damage 10 Or loss of the property of any person; end/or (2) daath,
bodily injury, illness, disease, worker's compensations,. loss of services, or |uam mfincome to
any persons tothe extent the claims arise out of or result from negligence acts or omissions,
willful misconduct or St[1Ct liability of the City, its agento, amnp|oyees, d|reotoro, off|cers,
contractors orsubcontractors and the agents and employees ofthe contractors and
subcontractors aathe proximate cause.
H. Either party shall give the other podx prompt written notice of any claims
or suits. Either party aha||, at its sole cost and expense, have the right to investigate and defend
same tothe extent ofits own interest.
19.8 Benefit to City. This Franchise shall besubject tothe provisions ofthe Port
Townsend WYUD|C|pa| Code. In the event of conflict between this Franchise and the City Code,
the provisions which afford the greatest benefit to the {:ih/ shall apply.
24
Ordinance 3245 Exhibit A
Page 26 of'41
19.9 Third Party Right of Action. This Franchise does not confer any contractual
rights of action on any persons or entity other than City and Franchisee. No third party has
standing to enforce or sue under this Franchise,
19.10 Washington Law Applies. Except as to matters that are governed solely by
Federal law, this Franchise will be governed by and construed in accordance with the laws of
the State of Washington.
PASSED & APPROVED by the City of Port Townsend, Washington and approved by the City
Council on this day of , 2020.
THE CITY OF PORT TOWNSEND, WASHINGTON
M
John Mauro, City Manager
ATTEST:
Joanna Sanders, City Clerk
APPROVED this day of f 2020
Heidi Greenwood, City Attorney
25
Ordinance 3245 Exhibit A
Page 27 of 41
APPENDICES
A. PEG links
B. Complimentary Cable Drops and Service
C. Customer Service Standards
26
Ordinance 3245 Exhibit A
Page 28 oj'41
APPENDIX A
PEG Links
27
Ordinance 3245 Exhibit A
Page 29 of 41
APPENDIX B
Complimentary Cable Drops and Service
28
Ordinance 3245 Exhibit A
Page 30 of 41
APPENDIX C
Customer Service Standards
The Franchisee shall comply with the following Customer Service and reporting requirements.
These requirements include, but are not limited to, the requirements set forth in FCC
regulations, including 47 C.F.R. §76.309, 47 C.F.R. §76.1602, and other applicable federal and
state laws. To the extent the provisions of these Customer Service Standards differ from
applicable FCC regulations or any applicable law, the provision or provisions that impose the
highest standard or greatest legal duties or obligations upon the Franchisee shall take
precedence, unless a different order of precedence is expressly set herein.
When used in these Customer Service Standards (the "Standards"), the following words,
phrases, and terms shall have the meanings given below:
"Cable Operator" shall have the meaning set forth in Section 602(5) of the federal
Communications Act., 47 U.S.C. 522(5).
"Cable Services" shall mean (a) the one-way transmission to Customers of video programming,
or other programming service, and (b) Customer interaction, if any, which is required for the
selection and use of such video programming or other programming service.
"Cable System" shall have the meaning set forth in Section 602(7) of the federal
Communications Act, 47 U.S.C. § 522(7).
"City" means the City of Port Townsend, Washington,
"Complaint" shall mean any issue raised by a Customer that is a violation of the Customer
Service Standards notification of which has been made to the Cable Operator either through the
Franchisee's Customer Service Center (as described in Section 2.1 below), Franchisee's
customer support call center (as described in Section 3.2 below) or in writing sent to
Franchisee's headquarters address.
"Customer" means any person who lawfully receives Cable Services or Other Services from the
Cable Operator.
29
Ordinance 3245 Exhibit A
WMINWAM
"Customer 88n/ice Representative" ("CSR") means any person onnp|ovad by the Franchisee to
assist, or provide service to Customers, whether by BnSvver|Og public telephone Unes, writing
service or installation orders, answering Customers' questions, receiving and processing
payments, or performing other Customer service -related tasks.
"Escalated Complaint" means a Complaint that is referred to a Cable Operator by the City,
"Franchisee" shall mean a Cable Operator who has been granted a franchise by the City of Port
Townsend to provide Cable Services.
"Other Service" means any wire orradio communications service, innhdinQ, but not limited to,
any interactive television or Internet Service, provided through the use ufany ofthe facilities of
Franchisee that are used in the provision of a Cable Service.
"Normal Business Hours" means the hours of 8:00 a.m. to 8:00 p.0. OD Monday through Friday,
and 9:00 a.m. to 5:00 p.m. on Saturday, excluding legal holidays.
"Normal Operating Conditions" means service conditions within the control of aF[8OChiSee.
Those conditions that are not within the sonbn| of Franchisee |nc|ude, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network outages, and severe nr
unusual weather conditions. Those conditions that are OrdiMG[||y within the control of
Franchisee |nc|ude, but are not limited to, special p[nnlOUOns, pay-per-vievvevents, rmha
increases, regular peak or seasonal demand periods, and maintenance or upgrade of the Cable
System.
Customer Service.
1.1. All officers, agents. and employees Ofthe Franchisee, its contractors and
subcontractors who are in contact with Customers by telephone, in vvhtiOg. or in person
1.1.1. be courteous, knowledgeable and helpful; provide complete and accurate
information; and deliver effective, t|nxmk/ and satisfactory service in all contacts
with Customers;
11.2. be fluent inEnglish and able to communicate clearly with Customers in
English; and
NX
Ordinance JJ45Exhibit A
Page 32 of'41
1.13. (for those who are inpersonal contact with Customers adthe Customer's
premises) have visible identification cards bearing their name and photograph.
The Franchisee shall account for all identification cards at all times. All CSRS
shall identify themselves orally to callers iDlnngdimtg|y following the greeting
during each telephone contact with the public. Every vehicle mfthe Franchisee
used for providing services toCustomers shall beclearly visually identified tothe
public as working for the Franchisee,
1.2. The Franchisee shall use its best efforts to make all customer services available
in Spanish and other languages, iOaddition tOEnglish.
13. Trees and shrubs orother landscaping OnGCustomer's property that are
damaged by Franchisee, or any employee or agent during installation or construction for
the Customer or in the process of serving @d|8C8Mt Structureo, shall be restored to their
prior condition or replaced. Trees and shrubs shall not be removed without the prior
permission ofthe owner ofthe property onwhich they are located.
1.4. The Franchisee shall, @tits own cost and expense, and |D8manner approved by
the property owner and the City, restore any property tOgSgood condition 8Sbefore the
work causing such disturbance was initiated. The Franchisee shall nepair, replace or
compensate all property owners for damages resulting from the Franchisee's installation,
cOnatruction. service or repair activities for @ Customer.
1.5. The Franchisee shall clean all areas surrounding any work site of debris caused
bythe Franchisee's activities and ensure that all cable materials are disposed of
properly.
1.6. Satisfaction Guaranteed. The Franchisee shall guarantee Customer satisfaction
for every Customer who requests new installation of Cable Services or Other Services or
adds any additional programming service tothe Customer's cable subscription by
allowing for a risk-free discontinuation of unsatisfactory services. Any such Customer
who adds Cable Services orOther Services to his or her account, and then requests
cl|sCOOtinUGtiDO of such service within thirty (30) days due to dissatisfaction with the
service, shall receive a credit tVhis/her account |DaOamount equal tOthe pro rata
charge for the remaining days ofservice following the request to disconnect. If
Customer subscribes to a service under a promotion that provides free service and
chooses tOdisconnect during the promotion window, there shall benocharge ofany
kind for the service orfor disconnection Ofthe service. Upon aCustomer's request, a
Franchisee will promptly downgrade or disconnect the Customer from the Franchisee's
Cable oymtano.
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Ordinance ]J4JExhibit A
Page 33 of 41
2.1. Franchisee will maintain a Customer Service Center within ornear the City limits.
The Customer Service Center will be open for walk-in traffic at least nine (U) hours per
day (except legal holidays) Monday through Friday, with some evening hours, and at
least six /6\hours onSaturday tnallow Subscribers t0pay bills, drop off equipment and
topick up equipment,
2. Z. Each Franchisee will perform service calls, iOGta|latiOMG, and disconnects at least
twelve (12) hours per day Monday through Saturday, except legal holidays, provided that
a Franchisee will respond to outages twenty-four (24) hours a day, seven (7) days a
week.
3. Telephones. All Call Response statistics shall bameasured uDthe basis ofcall
response statistics for all ooU centers that serve Subscribers. If the C3U centers serve
Subscribers located in other communities, the Franchisee shall insure that call center
representatives do not give priority or preferential treatment to Subscribers located in other
communities.
3]. Definitions nfCall Response terms.
3.1.1. "Answer Time" imthe interval between when the Franchisee receives a
call and when an interactive voice response (IVR) or agent answers,
3.1.2. "Speed OfAnswer" |sthe amount oftime between when the Customer hs
transferred into the agent queue from either an IVR or an agent and the time an
agent answers.
3.1.3. "Calls Abandoned" iSthe percentage ofcalls |Many agent queue that are
abandoned, disconnected or dropped for any reason.
3.2. Each Franchisee shall establish o publicly listed local toll-free telephone OUrDber,
The phone will be answered by a CSR twenty-four (24) hours per day, seven (7) days
per week, aothat the Franchisee can respond torequests for service, complaints,
inquiries and outages osrequired herein.
3.3. Standards for Call Response,
3.3.1. Answer Time will not exceed thirty (3[) seconds. Under Normal Operating
Conditions, the Franchisee shall meet this requirement at least ninety (80)
percent ofthe time measured pnaquarterly basis.
32
Ordinance 3245 Exhibit
Page 34 of'41
3.32. The average Speed ofAnswer shall not exceed thirty (3C)seconds.
Under Normal Operating Conditions, the Franchisee shall meet this requirement
at least ninety (80) percent of the time measured on a quarterly basis...
3.3.3. The percentage ofCalls Abandoned shall not exceed three (3)percent
under Normal Operating Conditions.
3�. Customer Service Reports,
3.4.1. Adthe request Ofthe City, @Franchisee shall submit reports ODall
Customer Service Standards identified herein during each successive calendar
quarter for the term of the Franchise, except as otherwise might be provided
herein. If F[8DCh|s8B'S reports for two (2) quarters within 8 calendar year fail to
demonstrate that the Franchisee has complied with any Customer Service
Standard, the Franchisee shall thereafter submit monthly reports about
performance of each such requirement until it reports three (3) consecutive
months with less than five (5) percent deviation from any minimum required
standard, unless the Franchisee demonstrates to the City's satisfaction that the
deviation occurred when it was not operating under Normal Operating Conditions
osdefined in47C.F.R. §78.3DB,and the Franchisee submits areport tothe City
regarding the nature and duration of such non -Normal Operating Conditions.
3.4.2. Timing. A Franchisee shall submit quarterly reports if requested by the
City within thirty (3[) days after the n|oen of the applicable reporting period. Each
report shall include data from the applicable reporting period.
3.4.3. Compliance. |f3 quarterly report indicated that @ Franchisee has failed to
meet any of the minimum required standards, the Franchisee shall provide a
written exp|@O8t|OD of the deviation within ten (10) bUS|DeSs days of the report,
including Steps being taken to cure the deviation, and the time expected to
implement the cure. A Franchisee must cure within thirty (30) days unless a
longer period is agreed to in writing by the City, which agreement shall not be
unreasonably withheld.
4. promptly
after a Subscriber request for initial service, for service changes/upgrades/downgrades, and/or
for scheduling of service oaU. a Franchisee ohuU send electronically clear and concise written
confirmation tQthe Subscriber. This confirmation should include the services chosen bvthe
Subscriber including any up upfront costs, and a reasonable summary Ofthe subscribers'
regular bill including taxes and fees.
KK
Ordinance 3245 Exhibit A
Page 35 of 41
5.1. All appointments for service, installation, ordisconnection will bespecified by
date. Each Franchisee will met a specific time at which the work will be dune, or offer a
choice of time b|0cks, which will not exceed four (4) hours in length. A Franchisee may
also, upon request, schedule service installation calls outside normal business hours, for
the express convenience ofthe Customer.
52. If at any time an installer or technician is late for an appointment and/or believes
a scheduled appointment time will be missed, an attempt to contact the Customer will be
made before the end ofthe appointment window and the appointment rescheduled mko
time convenient tothe Customer.
5.3. Franchisee will offer tuSubscribers who have experienced amissed appointment
(where the missed appointment was due tothe fault ofthe Franchisee) acredit 0Dthe
Subscriber's bill in the amount of twenty dollars /$20\ or o substantially eirni|mr benefit.
5.4. |fthe Franchisee makes reasonable and Dnless than three (3) attempts to
confirm an appointment during the scheduled appointment time or appointment window
and imunsuccessful inobtaining such confirmation, the Franchisee may assume that the
Customer has cancelled the appo|0dD18rd.
5.5. Under normal operating conditions, the service standards set forth 1nSections
4.1-4.4 will be met adleast ninety-five percent (95%) Vfthe time, measured on a
quarterly basis.
8. Service Standards,
0.1. Under Normal Operating Conditions, requests for service, repair, and
maintenance must be acknowledged by a trained Customer Service Representative
within twenty-four (24) hours, or before the end of the next business day, whichever is
8.2. A Franchisee will respond to all other customer inquiries (including billing
inquiries) within twenty-four (24) hours of the inquiry or Complaint.
6.3. Under Normal Operating Conditions, repairs and maintenance for outages Or
men/|oe interruptions that are caused by Franchisee's equipment and that involve a komm
reception 0nall channels O7affect five (5)ormore customers must becompleted within
34
Ordinance 3J45Exhibit A
Page 36 of 41
twenty-four (24)hours after the outage orinterruption becomes known to Franchisee,
where the Franchisee has adequate access t0facilities towhich itmust have access in
order to remedy the problem.
0.4. Under Normal Operating Conditions, work to correct all other service problems
must be begun by the next business day after notification of the service problem, and
must be completed within five (5) business days from the date of the initial notification of
o problem.
0,5. When Normal Operating Conditions do not exist, a Franchisee will complete the
work in the shortest time possible.
6.8. AFranchisee will not cancel aservice mrinstallation appointment with a
Customer after the close of business on the business day preceding the scheduled
appointment, whichever iSearlier.
O.Y. Under Normal Operating Conditions, the service standards set forth in Sections
51 -57will be met Btleast ninety-five percent /9596\Ofthe time, measured on
quarterly basis.
7. Disabled Services. With regard to Subscribers with verified disabilities that would
preven em from picking up or delivery equipment, upon Subscriber request, each Franchisee
will arrange for pickup and/or replacement of converters or other Franchisee equipment stthe
Subscriber's address or by a satisfactory equivalent (such as the provision of postage -prepaid
mailer) a1nncharge tothe Subscriber.
8. Notice to Subscribers regarding Service. AFranchisee will provide each Subscriber at
the time service is instG|led. and annually thereafter in correspondence in a manner consistent
with federal law, clear and accurate written information with regard to:
8.1. Products and services offered by Fn8Rcbisee, including its channel lineup;
8.2. Process and proceduresfor a sen/&e call, filing a Complaint, O[requesting an
adjustment (including when a Subscriber ieentitled torefunds for outages and how to
obtain them);
8.3. The telephone number and address of the City office responsible for
administering the Cable Television Franchise;
35
Ordinance 3245 Exhibit A
Page 3 7 of 41
8'4. Information regarding the current rates and charges for all servces, orVducts,
and equipment provided by the Fnonnhisee. Channel posiUono, delinquent Subscriber
disconnect and reconnect procedures; information regarding the availability of parental
control devices, the conditions under which they will be provided, and the cost (if any) to
be charged;
8.5. Descriptions of any diemoumts, oerviceo, cxspecialized equipment available to
Subscribers who are seniors or with diS8bi|UUDS| BXo|8iO|ng how to Obtain then); and
explaining how to use any accessibility features;
8.6. Installation and service maintenance pm|iciea, including the Customer
responsibilities for equipment;
8.7. Instruction on the use of cable Ty een/oe' remote control, and all other
equipment provided byaFranchisee; and
8.8. Days, hours of operation, and locations of the Customer Service Centers,
8. Changes in Noticed Information. Franchisee will provide tuthe City (or designee) 8t
least thirty 80 days in advance, and to all Subscribers at least thirty (30) days in advance'
written notice of any material changes in the information required to be provided under these
Customer Service Standards, except that, if federal law establishes a shorter notice period and
preempts this requirement, the federal requirement will apply.
10. Truth in Advertising, Each Franchisee will take appropriate steps tu ensure that all
written Franchisee pn}nn[diOma| rnatehg|S, announcements, and advertising of residential Cable
Services to Subscribers and the general pub|io, where price information is listed in any nnanner.
clearly and gCCUr8[e|y d|SdOS8s price terms and is in compliance with FCC Section 76.946. In
the nose of telephone orders, a Franchisee will take appropriate steps to ensure that price terms
are clearly and accurately disclosed to potential Customers in advance of taking the order.
11. Interruptions of Service. A Franchisee oheU inform Subscribers and the City three CB
days prior to any scheduled or planned interruption of service for planned maintenance or
construction; prVVided, h0vVeVer, that planned maintenance that does not require more than one
/1\ hour interruption of service and/or that occurs between the hours of 12:00 a.m. and 6:00
a.rn.will not require such notice toSubscribers, Notification 10Customers ofaplanned outage
may take the form of a door hanger, a message or insert into the monthly bill, or a telephone
call, supplemented with on-screen messages announcing the planned outage. The Franchisee's
Internet Service Customers may receive notification by e-mail to the address specified by the
Customer.
'4101
Ordinance lJ4jExhibit A
Page 38 of 41
12. Billing Statement.
12.1. /\ Franchisee's monthly billing statement must be clear, concise, and
understandable; must itemize each category of service and equipment provided to the
Subscriber; and must state clearly the charges therefor. The Franchisee shall provide a
due date nneach bill that |sodleast 3Odays from the beginning date ofthe applicable
billing cycle. /\ monthly bill shall be issued to all customers regardless of balance due.
The customer shall retain the option of whether to receive bills by mail or electronically.
122. The Franchisee shall respond to a customer's billing inquiry, general question, or
comment made by telephone or e-mail within 48 business hours after receipt.
12.3. If a Customer's service bill is not paid by the due date the Franchisee may apply
anadministrative/late fee tOthe Customer's account. |fthe Customer's bill isnot paid
within 45 days of the beginning date of the applicable service period, the Franchisee
may perform a°soft"disconnect 0fthe Customer's service. lfthe Customer's service bill
is not paid within 52days ofthe beginning Ofthe applicable service period, the
Franchisee may disconnect the Customer's service, but only upon showing that it
provided ten days' notice to the Customer that such disconnection may result.
12.4. An ad[niD|Stn8tiv8/|atefee may not be imposed unless the outstanding balance
exceeds $1O.ODand late fees may not exceed $10.DOper incident.
12.5 Subscribers will not becharged alate fee orotherwise penalized for any failure
by a Fnanchisee, including tei|ona to hnnmk/ or correctly bill the Subscriber, orfaHure to
properly credit the Subscriber for 3payment timely made. Payments will beconsidered
timely ifpostmarked onthe due date.
12.6. AFranchisee's bill must permit a Subscriber tDremit payment bvmail,
electronically, or in Person at the Franchisee's local office or at a listed drop-off location,
13. Credit for Service lmgairment,
13.1. ASubscriber's account will becredited a prorated share ofthe monthly charge
for the service upon Subscriber request ifaSubscriber |Swithout service or if service is
substantially impaired for any reason for a period exceeding four (4) hours during any
twenty-four /24\hour period.
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Ordinance lZ45Exhibit A
Page 39 of 41
132 /\ Franchisee need not credit Subscriber where it establishes that aSubscriber
will obtain a refund for a loss of service or impairment caused by the Subscriber or by
Subscriber owned equipment (not including, for purposes of this Section 13.2, in-home
wiring installed byFnanohisee).
14. Biffing Complaints. Franchisee shall provide an initial response oracknowledgement to
all written billing Complaints from Subscribers within 40 hOU[S of receipt of the {}0nOp|8iDi and 8
final written response within thirty (15) days ofreceipt ofthe Complaint.
15. Billing Refunds. Refunds to Subscribers will be issued no later than:
15.1. The later of the Subscriber's next billing cycle following resolution of the refund
request, or thirty (30) days; or
15.2. The date ofreturn of all Equipment to Franchisee, if Cable Service has been
16. Credits for Cable Service. Credits for Cable service will beissued nolater than the
Subscr r's next billing cycle after the determination that the credit is warranted.
17.
17.1. A Subscriber may terminate service at anytime,
17.3. Ifo Customer requests cancellation of any or all services, billing for affected
services shall end onthe same day, orVnthe future date for which the cancellation is
requested. After the requested, cancellation date, the Customer shall not be responsible
for cable services delivered. The Franchisee must refund any credit balance owed the
Customer, less any owed or disputed amounts, within 30 days after the close of the
Customer's billing cycle following the return of the equipment and request for
cancellation No period of notice before voluntary termination or downgrade of Cable
service may berequired ofSubscribers bvany Franchisee. There will banocharge for
disconnection and any downgrade charges will conform to applicable law.
18. Security Deposit. Any security deposit and/or other funds due oSubscriber that
disconnects ordowngrades service will be returned tothe Subscriber within thirty (3C) days orin
the next billing cycle, whichever is later, from the date disconnection or downgrade was
requested except in cases where the Subscriber does not permit the Franchisee to recover its
MD]
Ordinance 3245 Exhibit A
Page 40 of'41
equipment, inwhich case the amounts owed will be paid to Subscribers within thirty 00days of
the date the equipment was recovered, or in the next billing cycle, whichever is later.
10.1. AFranchisee may not disconnect aSubscriber's Cable service for non-payment
18.1.1.The Subscriber isdelinquent |npayment for Cable service;
19.1.2. The Subscriber fails b»pay the amounts owed tnavoid disconnection bv
the date of disconnection; and
19.1.3. Franchisee has responded inwriting tu any pending written inquiry
regarding the bill at iSSU8.
18.2. If the Subscriber pays all amounts due, including late charges, before the date
scheduled for disconnection, the Franchisee will not disconnect service. Service may
only be terminated on days in which the Customer can reach a representative of the
Franchisee either inperson orbytelephone.
19.3. The Franchisee will promptly reinstate service after disconnection as
noted below) upon payment by the Subscriber in full of all proper fees or chargee.
including the payment ofthe nanunnantinn charge, if any.
20. Immediate Disconnection. AFranchisee may immediately disconnect aSubscriber for
any lawful reasons, including but not limited to:
20.1. The Subscriber is damaging, destroying, or unlawfully tampering with or has
damaged or destroyed or unlawfully tampered with the Franchisee's Cable System;
20.2. The Subscriber is not authorized to receive a men/ice, and is tmoUitatng, aiding or
abetting the unauthorized receipt of service by others; or
20.3. 8UbScriberinstalled 0rattached eqUipnleOtlsresulting |Dsignal |eahaoathadisin
violation of FCC rules.
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Ordinance JJ4JExhibit A
Page 41 of 41
20.4. Abusive behavior by Customer toward mFranchisee or a Franchisee's employee.
21. Deposits, /\ Franchisee may require areasonable, non-discriminatory deposit on
equipment provided toSubscribers. Deposits will beplaced inaninterest-bearing account, and
the Franchisee will return the deposit, plus interest earned to the date the deposit is returned to
the Subscriber, less any amount the Franchisee can demonstrate should be deducted for
damage t0such equipment.
22. Parental Control, Option. Without limiting @Franchisee's obligations under Federal law,
aFranchisee must provide parental control devices adnOcharge ƒ0all Subscribers who request
them that enable the Subscriber toblock the video and audio portion Ofany Channel V[
Channels Ofprogramming.
23. Escalated Complaint. Any Customer who |odissatisfied with any proposed disposition Of
a Complaint by a Franchisee or who has not received a decision within the required fifteen (15)
day period shall be entitled to have the Complaint reviewed by the City.
231. The Customer may initiate the review either by calling the City 0rby filing
written Complaint, by letter or in electronic form, together with a Franchisee's vvhtban
decision, if any, with the City.
23.2. The Franchisee must attempt to contact the Subscriber who is the subject of the
Escalated Complaints within two business days of receiving the Escalated Complaint
notice from the City.
40