ORD 2527 ORDINANCE NO .
AN ORDINANCE granting a cable television system franchise
to Verizon Northwest Inc . from December 15 , 2008 . through
December 14 , 2023 .
WHEREAS , the City of Camas is authorized to grant one or more non- exclusive
franchises to construct , operate and maintain a cable television system within the municipal
boundaries of the City of Camas ; and
WHEREAS , after such consideration , analysis and deliberation as is required by law, the
City has found that Verizon Northwest Inc . has sufficient financial , technical and legal
qualifications to provide cable television service within the City of Camas ; and
WHEREAS , representatives of the City of Camas and Verizon Northwest Inc . have
negotiated a Cable Franchise Agreement with terms therein acceptable to the City of Camas , now
therefore ,
THE COUNCIL OF THE CITY OF CAMAS DO ORDAIN AS FOLLOWS :
Section I
The City hereby approves that certain Cable Franchise Agreement between the City of
Camas , Washington and Verizon Northwest Inc . effective December 15 , 2008 and expiring
December 14 , 2023 .
Section II
This ordinance shall take force and be in effect five ( 5 ) days from and after its publication
according to law .
PASSED b the Council and APPROVED b the Mayor this da of November ,
y y y � y
2008 .
SIGNED .
Mayor
ATTEST : '� . . .
. Clerk
APPROVED as to form .
City Attorney
CITY OF CAMAS
616Northeast Fourth Avenue
7.
t� P. O . Box 1055
h F. r� - K
r
f; Camas , Washington 98607
,y • http : //www , ci . camas , wa , us
November 21 , 2008
I , Joan M . Durgin , City Clerk of the City of Camas , certify that the attached is a true and
correct copy of Ordinance No . 2527 granting a cable television system franchise to
Verizon Northwest Inc . from December 15 , 2008 through December 14 , 2023 .
- ,t
Joan M . Durgin
Administration Building Finance Fire Library Police Public Works Parks & Recreation
360 . 834 . 6864 360 . 834 . 8860 360 . 834 . 2462 360 . 834 . 2262 360 . 834 . 4692 360 . 834 . 4151 360 . 834 . 3451 360 . 834 . 7092
CABLE FRANCHISE AGREEMENT
BETWEEN
THE CITY OF CAMAS, WASHINGTON
AND
VERIZON NORTHWEST INC.
2008
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TABLE OF CONTENTS
ARTICLE
PAGE
1.
DEFINITIONS...................................................................................................................2
2.
GRANT OF AUTHORITY; LIMITS AND RESERVATIONS .......................................
6
3.
PROVISION OF CABLE SERVICE ............................ .......................... I ......... ................
8
4.
SYSTEM OPERATION....................................................................................................9
5.
SYSTEM FACILITIES.....................................................................................................
9
6.
PEG SERVICES..............................................................................................................10
7.
FRANCHISE FEES.........................................................................................................12
8.
CUSTOMER SERVICE..................................................................................................13
9.
REPORTS AND RECORDS...........................................................................................13
10.
INSURANCE AND INDEMNIFICATION....................................................................
14
11.
TRANSFER OF FRANCHISE........................................................................................
16
12.
RENEWAL OF FRANCHISE.........................................................................................16
13.
ENFORCEMENT AND TERMINATION OF FRANCHISE........................................17
14.
MISCELLANEOUS PROVISIONS................................................................................19
EXHIBIT A - SERVICE AREAS...................................................................................
23
EXHIBIT B — MUNICIPAL BUILDINGS TO BE PROVIDED FREE CABLE
SERVICE................................................................................................... a ... a.................
24
EXHIBIT C — CUSTOMER SERVICE STANDARDS ..................................................
25
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THIS CABLE FRANCHISE AGREEMENT (the "Franchise" or "Agreement") is entered
into by and between Camas, a duly organized City under the applicable laws of the State of
Washington (the "Local Franchising Authority" or "LFA") and Verizon Northwest Inc., a
corporation duly organized under the applicable laws of the State of Washington (the
"Franchisee").
WHEREAS, the LFA wishes to grant Franchisee a nonexclusive franchise to construct,
install, maintain, extend and operate a cable communications system in the Franchise Area as
designated in this Franchise;
WHEREAS, the LFA is a "franchising authority" in accordance with Title VI of the
Communications Act (see 47 U.S.C. §522(10)) and is authorized to grant one or more
nonexclusive cable franchises pursuant to Washington state law;
WHEREAS, Franchisee is in the process of installing a Fiber to the Premise
Telecommunications Network ("FTTP Network") in the Franchise Area under its Title II
authority pursuant to federal law, authority granted by the State of Washington and pursuant to a
Memorandum of Understanding between the LFA and Franchisee;
WHEREAS, the FTTP Network will occupy the Public Rights -of -Way within the LFA,
and Franchisee desires to use portions of the FTTP Network once installed to provide Cable
Services (as hereinafter defined) in the Franchise Area;
WHEREAS, the LFA has identified the future cable -related needs and interests of the
LFA and its community, has considered the financial, technical and legal qualifications of
Franchisee, and has determined that Franchisee's plans for its Cable System are adequate, in a
full public proceeding affording due process to all parties;
WHEREAS, the LFA has found Franchisee to be financially, technically and legally
qualified to operate the Cable System;
WHEREAS, the LFA has determined that the grant of a nonexclusive franchise to
Franchisee is consistent with the public interest; and
WHEREAS, the LFA and Franchisee have reached agreement on the terms and
conditions set forth herein and the parties have agreed to be bound by those terms and
conditions.
NOW, THEREFORE, in consideration of the LFA's grant of a franchise to Franchisee,
Franchisee's promise to provide Cable Service to residents of the Franchise/Service Area of the
LFA pursuant to and consistent with the Communications Act (as hereinafter defined), pursuant
to the terms and conditions set forth herein, the promises and undertakings herein, and other
good and valuable consideration, the receipt and the adequacy of which are hereby
acknowledged,
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THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
Except as otherwise provided herein, the definitions and word usages set forth in the
Communications Act (as hereinafter defined) are incorporated herein and shall apply in this
Agreement. In addition, the following definitions shall apply:
1.1. Access Channel: A video Channel, which Franchisee shall make available to
the LFA without charge for non-commercial Public, Educational, or Governmental use for the
transmission of video programming as directed by the LFA.
1.2. Affiliate: Any Person who, directly or indirectly, owns or controls, is owned
or controlled by, or is under common ownership or control with, the Franchisee.
1.3. Additional Service Area: Shall mean any such portion of the Service Area
added pursuant to Section 3.1.2 of this Agreement.
1.4. Basic Service: Any service tier, which includes the retransmission of local
television broadcast signals as well as the PEG Channels required by this Franchise.
1.5. Cable Service or Cable Services: Shall be defined herein as it is defined
under Section 602 of the Communications Act, 47 U.S.C. § 522(6).
1.6. Cable System or System: Shall be defined herein as it is defined under
Section 602 of the Communications Act, 47 U.S.C. § 522(7), meaning Franchisee's facility,
consisting of a set of closed transmission paths and associated signal generation, reception, and
control equipment that is designed to provide Cable Service which includes video programming
and which is provided to multiple Subscribers within the Service Area. The Cable System shall
be limited to the optical spectrum wavelength(s), bandwidth or future technological capacity that
is used for the transmission of Cable Services directly to Subscribers within the
Franchise/Service Area and shall not include the tangible network facilities of a common carrier
subject in whole or in part to Title II of the Communications Act or of an Information Services
provider.
1.7. Channel: Shall be defined herein as it is defined under Section 602 of the
Communications Act, 47 U.S.C. § 522(4).
1.8. Communications Act: The Communications Act of 1934, as amended.
1.9. Control: The ability to exercise de facto or de jure control over day-to-day
policies and operations or the management of Franchise's affairs.
1.10. Educational Access Channel: An Access Channel available for the use
[solely] of the local public schools in the Franchise Area.
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1. 11. FCC: The United States Federal Communications Commission or
successor governmental entity thereto.
1.12. Force Majeure An event or events reasonably beyond the ability of
Franchisee to anticipate and control. This includes, but is not limited to, severe or unusual
weather conditions, strikes, labor disturbances, lockouts, war or act of war (whether an actual
declaration of war is made or not), insurrection, riots, act of public enemy, actions or inactions of
any government instrumentality or public utility including condemnation, accidents for which the
Franchisee is not primarily responsible, fire, flood, or other acts of God, or work delays caused
by waiting for utility providers to service or monitor utility poles to which Franchisee's FTTP
Network is attached, and unavailability of materials and/or qualified labor to perform the work
necessary.
1.13. Franchise Area: The incorporated area (entire existing territorial limits)
of the LFA and such additional areas as may be included in the corporate (territorial) limits of
the LFA during the term of this Franchise.
1.14. Franchisee: Verizon Northwest Inc., and its lawful and permitted
successors, assigns and transferees.
1.15. Government Access Channel: An Access Channel available for the use
solely of the LFA.
1.16. Gross Revenue: All revenue, as determined in accordance with generally
accepted accounting principles, which is derived by Franchisee from the operation of the Cable
System to provide Cable Service in the Service Area, provided, however, that Gross Revenue
shall not include:
1.16.1. Revenues received by any Affiliate or other Person in exchange
for supplying goods or services used by Franchisee to provide Cable Service over the Cable
System;
1.16.2. Bad debts written off by Franchisee in the normal course of its
business, provided, however, that bad debt recoveries shall be included in Gross Revenue during
the period collected;
1.16.3. Refunds, rebates or discounts made to Subscribers or other third
parties;
1.16.4. Any revenues classified, in whole or in part, as Non -Cable
Services revenue under federal or state law including, without limitation, revenue received from
Telecommunications Services; revenue received from Information Services, including, without
limitation, Internet Access service, electronic mail service, electronic bulletin board service, or
similar online computer services; charges made to the public for commercial or cable television
that is used for two-way communication; and any other revenues attributed by Franchisee to
Non -Cable Services in accordance with FCC or state public utility regulatory commission rules,
regulations, standards or orders;
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1.16.5. Any revenue of Franchisee or any other Person which is received
directly from the sale of merchandise through any Cable Service distributed over the Cable
System, notwithstanding that portion of such revenue which represents or can be attributed to a
Subscriber fee or a payment for the use of the Cable System for the sale of such merchandise,
which portion shall be included in Gross Revenue;
1.16.6. The sale of Cable Services on the Cable System for resale in
which the purchaser is required to collect cable franchise fees from purchaser's customer;
1.16.7. Any tax of general applicability imposed upon Franchisee or
upon Subscribers by a city, state, federal or any other governmental entity and required to be
collected by Franchisee and remitted to the taxing entity (including, but not limited to, sales/use
tax, gross receipts tax, excise tax, utility users tax, public service tax, communication taxes and
non -cable franchise fees);
1.16.8. Any foregone revenue which Franchisee chooses not to receive in
exchange for its provision of free or reduced cost cable or other communications services to any
Person, including without limitation, employees of Franchisee and public institutions or other
institutions designated in the Franchise; provided, however, that such foregone revenue which
Franchisee chooses not to receive in exchange for trades, barters, services or other items of value
shall be included in Gross Revenue;
1.16.9. Sales of capital assets or sales of surplus equipment;
1.16.10. Program launch fees;
1.16.11. Directory or Internet advertising revenue including, but not
limited to, yellow page, white page, banner advertisement and electronic publishing;
1.16.12. Any fees or charges collected from Subscribers or other third
parties for PEG Grant.
1.17. Information Services: Shall be defined herein as it is defined under
Section 3 of the Communications Act, 47 U.S.C. §153(20).
1.18. Initial Service Area: The portion of the Franchise Area as outlined in
Exhibit A.
1.19. Internet Access: Dial-up or broadband access service that enables
Subscribers to access the Internet.
1.20. Local Franchise Authority (LFA): The City of Camas or the lawful
successor, transferee, or assignee thereof.
1.21. Non -Cable Services: Any service that does not constitute the provision of
Video Programming directly to multiple Subscribers in the Franchise Area including, but not
limited to, Information Services and Telecommunications Services.
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1.22. Normal Operating Conditions: Those service conditions which are within
the control of the Franchisee. Those conditions which are not within the control of the
Franchisee include, but are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions. Those conditions which
are ordinarily within the control of the Franchisee include, but are not limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and
maintenance or rebuild of the Cable System. See 47 C.F.R. § 76.309(c)(4)(ii).
1.23. PEG: Public, Educational, and Governmental.
1.24. Person: An individual, partnership, association, joint stock company,
trust, corporation, or governmental entity.
1.25. Public Access Channel: An Access Channel available for the use solely
by the residents in the Franchise Area.
1.26. Public Rights -of -Way: The surface and the area across, in, over, along,
upon and below the surface of the public streets, roads, bridges, sidewalks, lanes, courts, ways,
alleys, and boulevards, including, public utility easements and public lands and waterways used
as Public Rights -of -Way, as the same now or may thereafter exist, which are under the
jurisdiction or control of the LFA. Public Rights -of -Way do not include the airwaves above a
right-of-way with regard to cellular or other nonwire communications or broadcast services.
1.27. Service Area: All portions of the Franchise Area where Cable Service is
being offered, including the Initial Service Area, Extended Service Area, and any Additional
Service areas.
1.28. Service Date: The date that the Franchisee first provides Cable Service on
a commercial basis directly to multiple Subscribers in the Franchise Area. The Franchisee shall
memorialize the Service Date by notifying the LFA in writing of the same, which notification
shall become a part of this Franchise.
1.29. Service Interruption: The loss of picture or sound on one or more cable
channels.
1.30. Subscriber: A Person who lawfully receives Cable Service over the Cable
System with Franchisee's express permission.
1.31. Telecommunications Facilities: Franchisee's existing Telecommunications
Services and Information Services facilities and its FTTP Network facilities.
1.32. Telecommunication Services: Shall be defined herein as it is defined
under Section 3 of the Communications Act, 47 U.S.C. § 153(46).
1.33. Title IT. Title II of the Communications Act.
1.34. Title VI: Title VI of the Communications Act.
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1.35. Transfer of the Franchise:
1.35.1. Any transaction in which:
1.35.1.1. an ownership or other interest in Franchisee is
transferred, directly or indirectly, from one Person or group of Persons to another Person or
group of Persons, so that control of Franchisee is transferred; or
1.35.1.2. the rights held by Franchisee under the Franchise
are transferred or assigned to another Person or group of Persons.
1.35.2. However, notwithstanding Sub -subsections 1.35.1.1 and 1.35.1.2
above, a Transfer of the Franchise shall not include transfer of an ownership or other interest in
Franchisee to the parent of Franchisee or to another Affiliate of Franchisee; transfer of an interest
in the Franchise or the rights held by the Franchisee under the Franchise to the parent of
Franchisee or to another Affiliate of Franchisee; any action which is the result of a merger of the
parent of the Franchisee; or any action which is the result of a merger of another Affiliate of the
Franchisee.
1.36. Video Programming: Shall be defined herein as it is defined under
Section 602 of the Communications Act, 47 U.S.C. § 522(20).
2. GRANT OF AUTHORITY: LLVUTS AND RESERVATIONS
2.1. Grant of Authority: Subject to the terms and conditions of this Agreement
and the Communications Act, the LFA hereby grants the Franchisee the right to own, construct,
operate and maintain a Cable System along the Public Rights -of -Way within the Franchise Area,
in order to provide Cable Service. No privilege or power of eminent domain is bestowed by this
grant; nor is such a privilege or power bestowed by this Agreement.
2.2. LFA Does Not Regulate Telecommunications: The LFA's regulatory
authority under Title VI of the Communications Act is not applicable to the construction,
installation, maintenance or operation of the Franchisee's FTTP Network to the extent the FTTP
Network is constructed, installed, maintained or operated for the purpose of upgrading and/or
extending Verizon's existing Telecommunications Facilities for the provision of Non -Cable
Services.
2.3. Term: This Franchise shall become effective on December 15, 2008 (the
"Effective Date"). The term of this Franchise shall be fifteen (15) years from the Effective Date
unless the Franchise is earlier revoked as provided herein.
2.4. Grant Not Exclusive: The Franchise and the rights granted herein to use and
occupy the Public Rights -of -Way to provide Cable Services shall not be exclusive, and LFA
reserves the right to grant other franchises for similar uses or for other uses of the Public Rights -
of -Way, or any portions thereof, to any Person, or to make any such use themselves, at any time
during the term of this Franchise. Any such rights which are granted shall not adversely impact
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the authority as granted under this Franchise and shall not interfere with existing facilities of the
Cable System or Franchisee's FTTP Network.
2.5. Franchise Subject to Federal Law: Notwithstanding any provision to the
contrary herein, this Franchise is subject to and shall be governed by all applicable provisions of
federal law as it may be amended, including but not limited to the Communications Act.
2.6. No Waiver:
2.6.1. The failure of LFA on one or more occasions to exercise a right or
to require compliance or performance under this Franchise, the Communications Act or any
other applicable State or Federal law shall not be deemed to constitute a waiver of such right or a
waiver of compliance or performance by the LFA, nor to excuse Franchisee from complying or
performing, unless such right or such compliance or performance has been specifically waived in
writing.
2.6.2. The failure of the Franchisee on one or more occasions to exercise
a right under this Franchise or applicable law, or to require performance under this Franchise,
shall not be deemed to constitute a waiver of such right or of performance of this Agreement, nor
shall it excuse LFA from performance, unless such right or performance has been specifically
waived in writing.
2.7. Construction ofAgreement:
2.7.1. The provisions of this Franchise shall be liberally construed to
effectuate their objectives
2.7.2. Nothing herein shall be construed to limit the scope or applicability
of Section 625 Communications Act, 47 U.S.C. § 545.
2.7.3. Should any change to state law have the lawful effect of materially
altering the terms and conditions of this Franchise, then the parties shall modify this Franchise to
the mutual satisfaction of both parties to ameliorate the negative effects on the Franchisee of the
material alteration. Any modifications shall be in writing. If the parties cannot reach agreement
on the above -referenced modification to the Franchise, then Franchisee may terminate this
Agreement without further obligation to the LFA or, at Franchisee's option, the parties agree to
submit the matter to binding arbitration in accordance with the commercial arbitration rules of
the American Arbitration Association.
2.8. Police Powers: Nothing in the Franchise shall be construed to prohibit the
reasonable, necessary and lawful exercise of LFA's police powers. However, if the reasonable,
necessary and lawful exercise of LFA's police power results in any material alteration of the
terms and conditions of this Franchise, then the parties shall modify this Franchise to the mutual
satisfaction of both parties to ameliorate the negative effects on the Franchisee of the material
alteration. Any modifications shall be in writing. If the parties cannot reach agreement on the
above -referenced modification to the Franchise, then Franchisee may terminate this Agreement
without further obligation to the LFA or, at Franchisee's option, the parties agree to submit the
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matter to binding arbitration in accordance with the commercial arbitration rules of the American
Arbitration Association.
3. PROVISION OF CABLE SERVICE
3.1. Service Area:
3.1.1. Initial Service Area: Franchisee shall offer Cable Service to
significant numbers of Subscribers in residential areas of the Initial Service Area and may make
Cable Service available to businesses in the Initial Service Area, within eighteen (18) months of
the Service Date of this Franchise, and shall offer Cable Service to all residential areas in the
Initial Service Area within five (5) years of the Service Date of the Franchise, except: (A) for
periods of Force Majeure; (B) for periods of delay caused by LFA; (C) for periods of delay
resulting from Franchisee's inability to obtain authority to access rights-of-way in the Service
Area; (D) in areas where developments or buildings are subject to claimed exclusive
arrangements with other providers; (E) in areas, developments or buildings where Franchisee
cannot access under reasonable terms and conditions after good faith negotiation, as determined
by Franchisee; and (F) in developments or buildings that Franchisee is unable to provide Cable
Service for technical reasons or which require non-standard facilities which are not available on
a commercially reasonable basis; and (G) in areas where the occupied residential household
density does not meet the density requirements set forth in Sub -section 3.1.1.1.
3.1.1.1. Density Requirement: Franchisee shall make Cable
Services available to residential dwelling units in all areas of the Service Area where the average
density is equal to or greater than 30 occupied residential dwelling units per mile as measured in
strand footage from the nearest technically feasible point on the active FTTP Network trunk or
feeder line. Should, through new construction, an area within the Initial Service Area meet the
density requirements after the time stated for providing Cable Service as set forth in Subsection
3.1.1, Franchisee shall provide Cable Service to such area within twelve (12) months of
receiving notice from LFA that the density requirements have been met.
3.1.2. Additional Service Areas: Except for the Initial Service Area, and
any Extended Service Area, Franchisee shall not be required to extend its Cable System or to
provide Cable Services to any other areas within the Franchise Area during the term of this
Franchise or any Renewals thereof. If Franchisee desires to add Additional Service Areas within
the Franchise Area, Franchisee shall notify LFA in writing of such Additional Service Area at
least ten (10) days prior to providing Cable Services in such areas.
3.2. Availability of Cable Service: Franchisee shall make Cable Service available
to all residential dwelling units and may make Cable Service available to businesses within the
Service Area in conformance with Section 3.1 and Franchisee shall not discriminate between or
among any individuals in the availability of Cable Service. In the areas in which Franchisee
shall provide Cable Service, Franchisee shall be required to connect, at Franchisee's expense,
other than a standard installation charge, all residential dwelling units that are within one
hundred twenty five (125) feet of trunk or feeder lines not otherwise already served by
Franchisee's FT'TP Network. Franchisee shall be allowed to recover, from a Subscriber that
requests such connection, actual costs incurred for residential dwelling unit connections that
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exceed one hundred twenty five (125) feet and actual costs incurred to connect any non-
residential dwelling unit Subscriber.
3.3. Cable Service to Municipal Buildings: Subject to 3.1, Franchisee shall
provide, without charge within the Service Area, one service outlet activated for Basic Service to
each of the locations listed in Exhibit B and, at LFA's request, to future public buildings;
provided, however, that (1) other cable providers in the Service Area have a similar requirement;
(2) if it is necessary to extend Franchisee's trunk or feeder lines more than one hundred twenty
five (125) feet solely to provide service to any such public building, the LFA shall have the
option either of paying Franchisee's direct costs for such extension in excess of one hundred
twenty five (125) feet, or of releasing Franchisee from the obligation to provide service to such
building; and (3) the number of future buildings to which Franchisee shall provide service under
this Section 3.3 relative to the total number of future buildings located within the Service Area
which qualify for service under this Section 3.3, shall be proportionate to Franchisee's market
share within the Service Area measured by number of Subscribers and, in any event, shall not
exceed five (5) buildings. Furthermore, Franchisee shall be permitted to recover, from any
school or other public building owner entitled to free service, the direct cost of installing, when
requested to do so, more than one outlet, or concealed inside wmng, or a service outlet requiring
more than one hundred twenty five (125) feet of drop cable; provided, however, that Franchisee
shall charge for the provision of Basic Service to the additional service outlets once installed.
Cable Service may not be resold or otherwise used in contravention of Franchisee's rights with
third parties respecting programming. Equipment provided by Franchisee, if any, shall be
replaced at retail rates if lost, stolen or damaged.
0
The parties recognize that Franchisee's FTTP Network is being constructed and will be
operated and maintained as an upgrade to and/or extension of its existing Telecommunications
Facilities. The jurisdiction of the LFA over such Telecommunications Facilities is restricted by
federal and state law, and the LFA does not and will not assert jurisdiction over Franchisee's
FTTP Network in contravention of those limitations.
5. SYS'T'EM FACILITIES
5.1. System Characteristics: Franchisee's Cable System shall meet or exceed the
following requirements:
5.1.1. The System shall be designed with an initial analog and digital
carrier passband between 50 and 860 MHz.
5.1.2. The System shall be designed to be an active two-way plant for
subscriber interaction, if any, required for selection or use of Cable Service.
5.2. Interconnection: The Franchisee shall design its Cable System so that it may
be interconnected with other cable systems in the Franchise Area. Interconnection of systems
may be made by direct cable connection, microwave link, satellite, or other appropriate methods.
5.3. Emergency Alert System:
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5.3.1. Franchisee shall comply with the Emergency Alert System
("EAS") requirements of the FCC in order that emergency messages may be distributed over the
System.
6. PEG SERVICES
6.1. Access Channels:
6.1.1. In order to ensure availability of educational and government
programming, Franchisee shall reserve, without charge to the LFA, on its Basic Service Tier for
LFA's future use one (1) dedicated Channel for Public, Educational and Governmental Access
(the "Access Channel").
6.1.2. The parties agree that Franchisee shall retain the right to utilize the
Access Channel, in its sole discretion, during the term of this Franchise until such time that
Franchisee activates LFA's Access Channel pursuant to Section 6.1 and/or if LFA ceases to use
the Access Channel during the Term of this Agreement. The LFA shall comply with applicable
law regarding the use of PEG Channels. Franchisee shall only be required to provide the Access
Channel so long as the other cable operators in the Franchise Area are also providing a similar
channel. .
6.1.3. The LFA may activate the Access Channel during the Term by
providing the Franchisee with written notice of the need for Access Channel capacity at least one
hundred eighty (180) days prior to the date it intends to activate the Access Channel,
demonstrated by a planned programming schedule for PEG programming consisting of at least
four (4) hours per day, which programming for purposes of this calculation shall not include
repeat programming generated per day or character -generated programming. Such written notice
shall authorize the Franchisee to transmit the Access Channel within and outside of the LFA.
6.1.4. The Franchisee specifically reserves the right to make or change
channel assignments in its sole discretion and shall provide notice of such changes as set forth in
the Customer Service Standards, Exhibit D, Sections 10.E and 10.G.4. The Access Channel shall
be used for community programming related to Public, Educational and/or Governmental
activities. The LFA shall have complete control over the content, scheduling, and administration
of the Access Channel and may delegate such functions, or a portion of such functions, to an
appropriate designee upon written notice from the LFA to Franchisee. The Franchisee shall not
exercise any editorial control over Access Channel programming.
6.1.5. Franchisee shall obtain the Access Channel programming via (i) a
dedicated fiber connection to the LFA's Access Channel at a mutually agreeable location (the
"PEG Channel Origination Site"), or (ii) a mutually agreeable alternative method of obtaining
the Access Channel programming. The Franchisee's obligations under Section 6.1, including its
obligation to provide upstream equipment, lines and facilities necessary to transmit those video
and audio signals, shall be subject to the provision by the LFA, to the extent applicable and
without charge to the Franchisee, of.
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(a) access to the PEG Channel Origination Site facility;
(b) access to any required PEG equipment within the PEG Channel
Origination Site facility and suitable required space, environmental conditions, electrical power
supply, access, and pathways within the PEG Channel Origination Site facility;
(c) video and audio signals in a mutually agreed upon format suitable
for Access Channel programming;
(d) any third -party consent that may be necessary to transmit PEG
signals (including, without limitation, any consent that may be required with respect to third -
party facilities, including the facilities of the incumbent cable provider, used to transmit PEG
content to the PEG Channel Origination Site from auxiliary locations); and
(e) any other cooperation and access to facilities as are reasonably
necessary for the Franchisee to fulfill the obligations stated herein.
To the extent suitable video and audio signals are provided to Franchisee and the
foregoing conditions in Section 6.1 are met, Franchisee shall, within one hundred eighty (180)
days of written notice of intent to activate, or provision of suitable video and audio signals,
whichever is later, provide, install, and maintain in good working order the equipment necessary
for transmitting the PEG signal to Subscribers.
6.2. PEG Grant:
6.2.1. Upon written notice of activation of the PEG Channel and with no
less than sixty (60) days prior written notice, Franchisee shall begin to provide LFA with a per
Subscriber, per month amount no greater than one dollar ($1.00) to be used in support of
production of PEG programming (the "PEG Grant"), as set forth herein. If during the Term of
this Franchise, all other cable operator(s) provide a PEG grant to the LFA, Franchisee agrees to
pay the same per Subscriber, per month amount, up to one dollar ($1.00) per Subscriber, per
month. If the LFA has not activated its Access Channel(s), pursuant to Section 6.1.3, within six
(6) months after the first calendar month from the date of the first PEG Grant payment,
Franchisee will cease to provide such PEG Grant.
6.2.2. If the Franchisee has ceased providing the PEG Grant pursuant to
Section 6.2.1, the PEG Grant will not be reinstated until such time that (i) the Access Channel is
activated pursuant to Section 6.1.3, and (ii) all other cable operator(s) are making the same grant
payment.
6.2.3. The amount of the PEG Grant may be modified as determined by
the City Council no more than once each year (up to the cap), and shall be the same amount
required of all other cable operators in the Franchise Area. Franchisee's obligation under this
Section 6.2. is contingent upon all other cable operators making the same grant payment on a per
Subscriber, per month basis. The LFA shall give Franchisee sixty (60) days prior written notice
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before instituting or changing the amount of the PEG Grant under this Section 6.2. The PEG
Grant payment shall he delivered to the LFA concurrent with the Franchise Fee payment.
6.2.4. The PEG Grant shall be used by the LFA for PEG access
equipment, including, but not limited to, studio and portable production equipment, editing
equipment and program playback equipment, or for renovation or construction of PEG access
facilities. The PEG Grant payment, along with a brief summary of the Subscriber information
upon which it is based, shall be delivered to the LFA within sixty (60) calendar days after the
beginning of each calendar year during the Franchise Term.
6.2.5. The LFA shall provide Franchisee with a complete accounting
annually of the distribution of funds granted pursuant to Section 6.2.
6.3. LFA shall require all local producers and users of any of the PEG facilities or
Channels to agree in writing to authorize Franchisee to transmit programming consistent with
this Agreement and to defend and hold harmless Franchisee and the LFA, from and against any
and all liability or other injury, including the reasonable cost of defending claims or litigation,
arising from or in connection with claims for failure to comply with applicable federal laws,
rules, regulations or other requirements of local, state or federal authorities; for claims of libel,
slander, invasion of privacy, or the infringement of common law or statutory copyright; for
unauthorized use of any trademark, trade name or service mark; for breach of contractual or
other obligations owed to third parties by the producer or user; and for any other injury or
damage in law or equity, which result from the use of a PEG facility or Channel. LFA shall
establish rules and regulations for use of PEG facilities, consistent with, and as required by, 47
U.S.C. § 531.
6.4. To the extent permitted by federal law, the Franchisee shall be allowed to
recover the costs of a PEG Grant or any other costs arising from the provision of PEG services
from Subscribers and to include such costs as a separately billed line item on each Subscriber's
bill.
7. FRANCHISE FEES
7.1. Payment to LFA: Franchisee shall pay to the LFA a Franchise fee of five
percent (5%) of annual Gross Revenue. In accordance with Title VI of the Communications Act,
the twelve (12) month period applicable under the Franchise for the computation of the Franchise
fee shall be a calendar year. Such payments shall be made no later than forty-five (45) days
following the end of each calendar quarter. Franchisee shall be allowed to submit or correct any
payments that were incorrectly omitted, and shall be refunded any payments that were
incorrectly submitted, in connection with the quarterly Franchise fee remittances within 90 days
following the close of the calendar year for which such payments were applicable.
7.2. Interest on Late Payments: Any Franchise Fee payment not received by
LFA on or before the due date shall be subject to the interest at the then -current rate set forth in
RCW 19.52.020, which as of the date of execution of this Agreement is twelve percent (12%)
per annum from the due date to the date that such payment is made.
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7.3. Supporting Information: Each Franchise fee payment shall be accompanied
by a brief report prepared by a representative of Franchisee showing the basis for the
computation.
7.4. Limitation on Franchise Fee Actions: The parties agree that the period of
limitation for recovery of any Franchise fee payable hereunder shall be three (3) years from the
date on which payment by Franchisee is due.
7.5. Audit of Franchise Fee Payments:
7.5.1. LFA may audit or conduct a franchise fee review of Franchisee's
books and records no more than once every three (3) years during the Term. All records
reasonably necessary for any such audit shall be made available by Franchisee to LFA.
7.5.2. Each party shall bear its own costs of an audit; provided, however,
that if the results of any audit indicate that Franchisee underpaid the franchise fees by four
percent (41/6) or more, then Franchisee shall pay those costs of the third party audit which are
reasonable, documented, out-of-pocket costs up to Five Thousand Dollars ($5000).
7.5.3. If the results of an audit indicate an overpayment or underpayment
of franchise fees, the parries agree that such overpayment or underpayment shall be returned or
offset against future payments if applicable, to the proper party within sixty (60) days, unless
audit findings are in dispute; provided, however, that Franchisee shall be required to remit
underpayments to LFA together with interest at the rate specified in Subsection 7.2
7.5.4. Any audit shall be conducted by an independent third party. Any
entity employed by LFA that performs the audit or franchise fee review shall not be permitted to
be compensated on a success based formula e.g. payment based on an underpayment of fees, if
any.
7.5.5. Notwithstanding the provision in Subsection 7.5, LFA shall not be
entitled to audit Franchisee unless LFA requires that all cable operators providing Cable Service
in the LFA comply with the material provisions of this article.
8. CUSTOMER SERVICE
Customer Service Requirements are set forth in Exhibit C, which shall be binding unless
amended by written consent of the parties.
9. REPORTS AND RECORDS
9.1 Open Books and Records: Upon reasonable written notice to the
Franchisee and with no less than thirty (30) business days written notice to the Franchisee, the
LFA shall have the right to inspect Franchisee's books and records pertaining to Franchisee's
provision of Cable Service in the Franchise Area at any time during normal business hours and
on a nondisruptive basis, as are reasonably necessary to ensure compliance with the terms of this
Franchise. Such notice shall specifically reference the section or subsection of the Franchise
which is under review, so that Franchisee may organize the necessary books and records for
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appropriate access by the LFA. Franchisee shall not be required to maintain any books and
records for Franchise compliance purposes longer than three (3) years. Notwithstanding
anything to the contrary set forth herein, Franchisee shall not be required to disclose information
that it reasonably deems to be proprietary or confidential in nature, nor disclose any of its or an
Affiliate's books and records not relating to the provision of Cable Service in the Service Area.
The LFA shall treat any information disclosed by Franchisee as confidential and only to disclose
it to employees, representatives, and agents thereof that have a need to know, or in order to
enforce the provisions hereof. Franchisee shall not be required to provide Subscriber
information in violation of Section 631 of the Communications Act, 47 U.S.C. §551.
9.2. Records Required: Franchisee shall at all times maintain:
9.2.1. Records of all written complaints for a period of three (3) years
after receipt by Franchisee. The term "complaint" as used herein refers to complaints about any
aspect of the Cable System or Franchisee's cable operations, including, without limitation,
complaints about employee courtesy. Complaints recorded will not be limited to complaints
requiring an employee service call;
9.2.2. Records of outages for a period of three (3) years after occurrence,
indicating date, duration, area, and the number of Subscribers affected, type of outage, and
cause;
9.2.3. Records of service calls for repair and maintenance for a period of
three (3) years after resolution by Franchisee, indicating the date and time service was required,
the date of acknowledgment and date and time service was scheduled (if it was scheduled), and
the date and time service was provided, and (if different) the date and time the problem was
resolved;
9.2.4. Records of installationlreconnection and requests for service
extension for a period of three years after the request was fulfilled by Franchisee, indicating the
date of request, date of acknowledgment, and the date and time service was extended; and
9.2.5. A map showing the area of coverage for the provisioning of Cable
Services and estimated timetable to commence providing Cable Service.
10. INSURANCE AND INDEMNIFICATION
10.1 Insurance:
10.1.1. Franchisee shall maintain in full force and effect, at its own cost
and expense, during the Franchise Term, the following insurance coverage:
10.1.1.1. Commercial General Liability Insurance in the amount
of two million dollars ($2,000,000) combined single limit for property damage and bodily injury..
Such insurance shall cover the construction, operation and maintenance of the Cable System and
the conduct of Franchisee's Cable Service business in -the LFA.
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10.1.1.2. Automobile Liability Insurance in the amount of two
million dollars ($2,000,000) combined single limit for bodily injury and property damage.
10.1.1.3. Workers' Compensation Insurance meeting all legal
requirements of the State of Washington.
10.1.1.4. Employers' Liability Insurance in the following
amounts: (A) Bodily Injury by Accident: $100,000; and (B) Bodily Injury by Disease:
$100,000 employee limit; and C) Bodily Injury by Disease: $2,000,000 policy limit.
10.1.2. The LFA shall be included as additional insured under each of the
insurance policies required in this Article 10 except Worker's Compensation and Employer's
Liability Insurance.
10.1.3. Franchisee shall not cancel any required insurance policy without
obtaining alternative insurance in conformance with this Agreement.
10.1.4. Each of the required insurance policies shall be with insurers
qualified to do business in the State of Washington, with an A.M. Best Financial Strength rating
of A- or better.
10.1.5. Upon written request, Franchisee shall deliver to LFA Certificates
of Insurance showing evidence of the required coverage.
10.1.6. The limits required above may be satisfied with a combination of
primary and excess coverage
10.2. Indemnification:
10.2.1. Franchisee agrees to indemnify, save and hold harmless, and
defend the LFA, its officers, agents, boards and employees, from and against any liability for
damages or claims resulting from tangible property damage or bodily injury (including
accidental death), to the extent proximately caused by Franchisee's negligent construction,
operation, or maintenance of its Cable System, provided that the LFA shall give Franchisee
written notice of its obligation to indemnify the LFA within ten (10) days of receipt of a claim or
action pursuant to this subsection. Notwithstanding the foregoing, Franchisee shall not
indemnify the LFA, for any damages, liability or claims resulting from the willful misconduct or
negligence of the LFA, its officers, agents, employees, attorneys, consultants, independent
contractors or third parties or for any activity or function conducted by any Person other than
Franchisee in connection with PEG Access or EAS, or the distribution of any Cable Service over
the Cable System.
10.2.2. With respect to Franchisee's indemnity obligations set forth in
Subsection 10.2.1, Franchisee shall provide the defense of any claims brought against the LFA
by selecting counsel of Franchisee's choice to defend the claim, subject to the consent of the
LFA, which shall not unreasonably be withheld. Nothing herein shall be deemed to prevent the
LFA from cooperating with the Franchisee and participating in the defense of any litigation by
its own counsel at its own cost and expense, provided however, that after consultation with the
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LFA, Franchisee shall have the right to defend, settle or compromise any claim or action arising
hereunder, and Franchisee shall have the authority to decide the appropriateness and the amount
of any such settlement. In the event that the terms of any such proposed settlement includes the
release of the LFA and the LFA does not consent to the terms of any such settlement or
compromise, Franchisee shall not settle the claim or action but its obligation to indemnify the
LFA shall in no event exceed the amount of such settlement.
10.2.3. LFA shall hold harmless and defend Franchisee from and against
and shall be responsible for damages, liability or claims resulting from or arising out of the
willful misconduct or negligence of the LFA.
10.2.4. The LFA shall be responsible for its own acts of willful
misconduct or negligence, or breach of obligation committed by the LFA for which the LFA is
legally responsible, subject to any and all defenses and limitations of liability provided by law.
The Franchisee shall not be required to indemnify the LFA for acts of the LFA which constitute
willful misconduct or negligence, on the part of the LFA, its officers, employees, agents,
attorneys, consultants, independent contractors or third parties.
11. TRANSFER OF FRANCHISE
Subject to Section 617 of the Communications Act, 47 U.S.C. § 537, no Transfer
of the Franchise shall occur without the prior consent of the LFA, provided that such consent
shall not be unreasonably withheld, delayed or conditioned. No such consent shall be required,
however, for a transfer in trust, by mortgage, by other hypothecation, by assignment of any
rights, title, or interest of the Franchisee in the Franchise or Cable System in order to secure
indebtedness, or otherwise for transactions otherwise excluded under Section 1.35 above.
12. RENEWAL OF FRANCHISE
12.1. The LFA and Franchisee agree that any proceedings undertaken by the
LFA that relate to the renewal of this Franchise shall .be governed by and comply with the
provisions of Section 626 of the Communications Act, 47 U.S.C. § 546.
12.2. In addition to the procedures set forth in said Section 626 of the
Communications Act, the LFA shall notify Franchisee of all of its assessments regarding the
identity of future cable -related community needs and interests, as well as the past performance of
Franchisee under the then current Franchise term. The LFA further agrees that such assessments
shall be provided to Franchisee promptly so that Franchisee has adequate time to submit a
proposal under 47 U.S.0 546 and complete renewal of the Franchise prior to expiration of its
term.
12.3. Notwithstanding anything to the contrary set forth herein, Franchisee and
the LFA agree that at any time during the term of the then current Franchise, while affording the
public appropriate notice and opportunity to comment, the LFA and Franchisee may agree to
undertake and finalize informal negotiations regarding renewal of the then current Franchise and
the LFA may grant a renewal thereof.
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12.4. Franchisee and the LFA consider the terms set forth in this Article 12 to be
consistent with the express provisions of 47 U.S.C. 546.
13. ENFORCEMENT AND TERMINATION OF FRANCHISE
13.1. Security: Within thirty (30) days following the Effective Date of this
Agreement, Franchisee shall provide to LFA security for the faithful performance by Franchisee
of all material provisions of this Agreement. Franchisee shall maintain the Security at Ten
Thousand dollars ($10,000) throughout the term of this Agreement; provided that, the LFA shall
require all other cable operators in the Franchise Area to provide competitively equitable security
in any renewal or initial granting of such franchises after the Effective Date. The form of the
security may, at Franchisee's option, be a performance bond, letter of credit, cash deposit,
cashier's check or any other security acceptable to LFA (the "Security").
13.1.1. If the Franchisee posts a performance bond, it shall be substantially
in the form of Exhibit E.
13.1.2. In the event the Security provided pursuant to the Agreement is not
renewed, is cancelled, is terminated or is otherwise impaired, Franchisee shall provide new
security pursuant to this Article within sixty (60) days of notice.
13.1.3. Neither cancellation, nor termination nor refusal by surety to
extend the bond, nor inability of Franchisee to file a replacement bond or replacement security
for its obligations, shall constitute a loss to the LFA recoverable under the bond.
13.2. Notice of Violation: If at any time the LFA believes that Franchisee has
not complied with the terms of the Franchise, the LFA shall informally discuss the matter with
Franchisee. If these discussions do not lead to resolution of the problem in a reasonable time, the
LFA shall then notify Franchisee in writing of the exact nature of the alleged noncompliance in a
reasonable time (for purposes of this Article, the "Noncompliance Notice").
13.3. Franchisee's Right to Cure or Respond: Franchisee shall have thirty (30)
days from receipt of the Noncompliance Notice to: (i) respond to the LFA, if Franchisee contests
(in whole or in part) the assertion of noncompliance; (ii) cure such noncompliance; or (iii) in the
event that, by its nature, such noncompliance cannot be cured within such thirty (30) day period,
initiate reasonable steps to remedy such noncompliance and notify the LFA of the steps being
taken and the date by which cure is projected to be completed. Upon cure of any noncompliance,
LFA shall provide written confirmation that such cure has been effected.
13.4. Public Hearing. The LFA shall schedule a public hearing if the LFA
seeks to continue its investigation into the alleged noncompliance in the event that: (1)
Franchisee fails to respond to the Noncompliance Notice pursuant to the procedures required by
this Article, or (2) in the event that Franchisee has not remedied the alleged noncompliance
within thirty (30) days or the date projected pursuant to Section 13.3(iii) above. The LFA shall
provide Franchisee at least thirty (30) business days prior written notice of such public hearing,
which will specify the time, place and purpose of such public hearing, and provide Franchisee
the opportunity to be heard.
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13.5. Enforcement: Subject to applicable federal and state law, in the event the
LFA, after the public hearing set forth in Section 13.4, determines that Franchisee is in default of
any provision of this Franchise, the LFA may:
13.5.1. Seek specific performance of any provision, which reasonably
lends itself to such remedy, as an alternative to damages; or
13.5.2. Commence an action at law for monetary damages or seek other
equitable relief; or
13.5.3. In the case of a substantial material default of a material provision
of the Franchise, seek to revoke the Franchise in accordance with Section 13.6.
13.6. Revocation: Should the LFA seek to revoke this Franchise after following
the procedures set forth above in this Article, including the public hearing described in Section
13.4., the LFA shall give written notice to Franchisee of such intent. The notice shall set forth
the specific nature of the noncompliance. The Franchisee shall have ninety (90) days from
receipt of such notice to object in writing and to state its reasons for such objection. In the event
the LFA has not received a satisfactory response from Franchisee, it may then seek termination
of the Franchise at a second public hearing. The LFA shall cause to be served upon the
Franchisee, at least thirty (30) business days prior to such public hearing, a written notice
specifying the time and place of such hearing and stating its intent to revoke the Franchise.
13.6.1. At the designated hearing, Franchisee shall be provided a fair
opportunity for full participation, including the right to be represented by legal counsel, to
introduce relevant evidence, to require the production of evidence, to compel the relevant
testimony of the officials, agents, employees or consultants of the LFA, to compel the testimony
of other persons as permitted by law, and to question and/or cross examine witnesses. A
complete verbatim record and transcript shall be made of such hearing.
13.6.2. Following the public hearing, Franchisee shall be provided up to
thirty (30) days to submit its proposed findings and conclusions in writing and thereafter the
LFA shall determine (i) whether an event of default has occurred; (ii) whether such event of
default is excusable; and (iii) whether such event of default has been cured or will be cured by
the Franchisee. The LFA shall also determine whether to revoke the Franchise based on the
information presented, or, where applicable, grant additional time to the Franchisee to affect any
cure. If the LFA determines that the Franchise shall be revoked, the LFA shall promptly provide
Franchisee with a written decision setting forth its reasoning. Franchisee may appeal such
determination of the LFA to an appropriate court, which shall have the power to review the
decision of the LFA de novo. Franchisee shall be entitled to such relief as the court finds
appropriate. Such appeal must be taken within sixty (60) days of Franchisee's receipt of the
determination of the franchising authority.
13.6.3. The LFA may, at its sole discretion, take any lawful action which it
deems appropriate to enforce the LFA's rights under the Franchise in lieu of revocation of the
Franchise.
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13.7. Franchisee Termination: Franchisee shall have the right to terminate this
Franchise and all obligations hereunder within ninety (90) days after the end of three (3) years
from the Service Date of this Franchise, if at the end of such three (3) year period Franchisee
does not then in good faith believe it has achieved a commercially reasonable level of Subscriber
penetration on its Cable System. Franchisee may consider subscriber penetration levels outside
the Franchise Area in this determination. Notice to terminate under this Section 13.6 shall be
given to the City in writing, with such termination to take effect no sooner than one hundred and
twenty (120) days after giving such notice. Franchisee shall also be required to give its then
current Subscribers not less than ninety (90) days prior written notice of its intent to cease Cable
Service operations.
14. MISCELLANEOUS PROVISIONS
14.1. Actions of Parties: In any action by the LFA or Franchisee that is
mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious,
and timely manner. Furthermore, in any instance where approval or consent is required under
the terms hereof, such approval or consent shall not be unreasonably withheld, delayed or
conditioned.
14.2. Binding Acceptance: This Agreement shall bind and benefit the parties
hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees,
successors and assigns, and the promises and obligations herein shall survive the expiration date
hereof.
14.3. Preemption: In the event that federal or state law, rules, or regulations
preempt a provision or limit the enforceability of a provision of this Agreement, the provision
shall be read to be preempted to the extent, and for the time, but only to the extent and for the
time, required by law. In the event such federal or state law, rule or regulation is subsequently
repealed, rescinded, amended or otherwise changed so that the provision hereof that had been
preempted is no longer preempted, such provision shall thereupon return to full force and effect,
and shall thereafter be binding on the parties hereto, without the requirement of further action on
the part of the LFA.
14.4. Force Majeure: Franchisee shall not be held in default under, or in
noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty
relating to noncompliance or default, where such noncompliance or alleged defaults occurred or
were caused by a Force Maj eure.
14.4.1. Furthermore, the parties hereby agree that it is not the LFA's
intention to subject Franchisee to penalties, fines, forfeitures or revocation of the Franchise for
violations of the Franchise where the violation was a good faith error that resulted in no or
minimal negative impact on Subscribers, or where strict performance would result in practical
difficulties and hardship being placed upon Franchisee which outweigh the benefit to be derived
by the LFA and/or Subscribers.
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14.5. Notices: Unless otherwise expressly stated herein, notices required under
the Franchise shall be mailed first class, postage prepaid, to the addressees below. Each parry
may change its designee by providing written notice to the other party.
14.5.1. Notices to Franchisee shall be mailed to:
Verizon Northwest Inc.
Attn: Mr. Tim McCallion, President
112 Lakeview Canyon Road, CA501GA
Thousand Oaks, CA 91362
14.5.2. with a copy to:
Mr. Jack H. White
Senior Vice President & General Counsel — Verizon Telecom
One Verizon Way
Room VC43EO10
Basking Ridge, NJ 07920-1097
14.5.3. Notices to the LFA shall be mailed to:
City of Camas
City Administrator
P.O. Box 1055
Camas, WA 98607
14.6. Entire Agreement: This Franchise and the Exhibits hereto constitute the
entire agreement between Franchisee and the LFA, and it supersedes all prior or
contemporaneous agreements, representations or understanding (whether written or oral) of the
parties regarding the subject matter hereof. Any ordinances or parts of ordinances that conflict
with the provisions of this Agreement are superseded by this Agreement.
14.7. Amendments: Amendments to this Franchise shall be mutually agreed to
in writing by the parties.
14.8. Captions: The captions and headings of articles and sections throughout
this Agreement are intended solely to facilitate reading and reference to the sections and
provisions of this Agreement. Such captions shall not affect the meaning or interpretation of this
Agreement.
14.9. Severability: If any section, subsection, sentence, paragraph, term, or
provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of
competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof,
such determination shall have no effect on the validity of any other section, subsection, sentence,
paragraph, term or provision hereof, all of which will remain in full force and effect for the term
of the Franchise.
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14. 10. Recitals: The recitals set forth in this Agreement are incorporated into the
body of this Agreement as if they had been originally set forth herein.
14.11. Modification: This Franchise shall not be modified except by written
instrument executed by both parties.
14.12. FTTP Network Transfer Prohibition: Under no circumstance including,
without limitation, upon expiration, revocation, termination, denial of renewal of the Franchise
or any other action to forbid or disallow Franchisee from providing Cable Services, shall
Franchisee or its assignees be required to sell any right, title, interest, use or control of any
portion of Franchisee's FTTP Network including, without limitation, the cable system and any
capacity used for cable service or otherwise, to the LFA or any third party. Franchisee shall not
be required to remove the FTTP Network or to relocate the FTTP Network or any portion thereof
as a result of revocation, expiration, termination, denial of renewal or any other action to forbid
or disallow Franchisee from providing Cable Services. This provision is not intended to
contravene leased access requirements under Title VI or PEG requirements set out in this
14.13. Independent Review: Agreement. LFA and Franchisee each acknowledge
that they have received independent legal advice in entering into this Agreement. In the event
that a dispute arises over the meaning or application of any term(s) of this Agreement, such
term(s) shall not be construed by the reference to any doctrine calling for ambiguities to be
construed against the drafter of the Agreement.
AGREED TO THIS _A_ DAY OF 08c� 22008.
CITY OF CAMAS
By:
Paul Dennis, Mayor
Verizon Northwest Inc.
Tim McCallion, President
Camas, Washington
Seattle -3424349.5 0010932-00119
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EXHIBITS
Exhibit A: Service Areas
Exhibit B: Municipal Buildings to be Provided Free Cable Service
Exhibit C: Customer Service Standards
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X711:
SERVICE AREAS
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MUNICIPAL BUILDINGS TO BE PROVIDED FREE CABLE SERVICE
Dorothy Fox Elementary
2623 NW Sierra Street
Camas, WA 98607
Helen Baller Elementary
1954 NE Garfield Street
Camas, WA 98607
JDZ Elementary
841 NE 22nd Avenue
Camas, WA 98607
Lacamas Heights Elementary
4600 NE Garfield Street
Camas, WA 98607
Prune Hill Elementary
1601 NW Tidland Street
Camas, WA 98607
Liberty Middle School
1612 NE Garfield Street
Camas, WA 98607
Skyridge Middle School
5220 NW Parker Street
Camas, WA 98607
Camas High School
26900 SE 15th Street
Camas, WA 98607
Camel, Washington 24
Seattle -3474349.5 0010932-00119
Camas Cemetery (maintenance bldg)
630 NE Oak Street
Camas, WA 98607
Camas Wastewater Treatment Plant
1129 SE Polk Street
Camas, WA 98607
Police Station
2100 NE 3rd Avenue
Camas, WA 98607
Fire Station #1
616 NE 4d' Avenue
Camas, WA 98607
Fire Station # 4z-
4321 NW Parker Blvd
Camas, WA 98607
Camas Operation Center
1620 SE 8's Avenue
Camas, WA 98607
Library
625 NE 4' Avenue
Camas, WA 98607
City Hall
616 NE 0 Avenue
Camas, WA 98607
CUSTOMER SERVICE STANDARDS
These standards shall, starting twelve months after the Service Date, apply to the Franchisee to
the extent it is providing Cable Services over the Cable System in the Franchise area.
SECTION 1: DEFINITIONS
A. Respond: Franchisee's investigation of a Service Interruption by receiving a
Subscriber call and opening a trouble ticket, if required.
B. Significant Outage: A significant outage of the Cable Service shall mean any
Service Interruption lasting at least four (4) continuous hours that affects at least ten percent
(10%) of the Subscribers in the Service Area.
C. Service Call: The action taken by the Franchisee to correct a Service Interruption
the effect of which is limited to an individual Subscriber.
D. Standard Installation: Installations where the subscriber is within one hundred
twenty five (125) feet of trunk or feeder lines.
SECTION 2: TELEPHONE AVAILABILITY
A. The Franchisee shall maintain a toll-free number to receive all calls and inquiries
from Subscribers in the Franchise Area and/or residents regarding Cable Service. Franchisee
representatives trained and qualified to answer questions related to Cable Service in the Service
Area must be available to receive reports of Service Interruptions twenty-four (24) hours a day,
seven (7) days a week, and other inquiries at least forty-five (45) hours per week. Franchisee
representatives shall identify themselves by name when answering this number.
B. The Franchisee's telephone numbers shall be listed, with appropriate description
(e.g. administration, customer service, billing, repair, etc.), in the directory published by the local
telephone company or companies serving the Service Area, beginning with the next publication
cycle after acceptance of this Franchise by the Franchisee.
C. Franchisee may use an Automated Response Unit ("ARU") or a Voice Response
Unit ("VRU") to distribute calls. If a foreign language routing option is provided, and the
Subscriber does not enter an option, the menu will default to the first tier menu of English
options.
After the first tier menu (not including a
foreign
language rollout) has run through three
times, if customers do not select any option, the
ARU or VRU will forward the
call to a queue
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Seattle -3424349.5 0010932-00119
for a live representative. The Franchisee may reasonably substitute this requirement with
another method of handling calls from customers who do not have touch-tone telephones.
D. Under Normal Operating Conditions, calls received by the Franchisee shall be
answered within thirty (30) seconds. The Franchisee shall meet this standard for ninety percent
(90%) of the calls it receives at all call centers receiving calls from Subscribers, as measured on a
cumulative quarterly calendar basis. Measurement of this standard shall include all calls
received by the Franchisee at all call centers receiving calls from Subscribers, whether they are
answered by a live representative, by an automated attendant, or abandoned after 30 seconds of
call waiting.
E. Under Normal Operating Conditions, callers to the Franchisee shall receive a busy
signal no more than three (31/o) percent of the time during any calendar quarter.
F. At the Franchisee's option, the measurements above may be changed from
calendar quarters to billing or accounting quarters. The Franchisee shall notify the LFA of such
a change at least thirty (30) days in advance of any implementation.
SECTION 3: INSTALLATIONS AND SERVICE APPOINTMENTS
A. All installations will be in accordance with FCC rules, including but not limited
to, appropriate grounding, connection of equipment to ensure reception of Cable Service, and the
provision of required consumer information and literature to adequately inform the Subscriber in
the utilization of the Franchisee -supplied equipment and Cable Service.
B. The Standard Installation shall be performed within seven (7) business days after
the placement of the Optical Network Terminal ("ONT") on the customer's premises or within
seven (7) business days after an order is placed if the ONT is already installed on the customer's
premises.
The Franchisee shall meet this standard for ninety-five percent (95%) of the Standard
Installations it performs, as measured on a calendar quarter basis, excluding customer requests
for connection later than seven (7) days after ONT placement or later than seven (7) days after an
order is placed if the ONT is already installed on the customer's premises.
At the Franchisee's option, the measurements of above may be changed from calendar
quarters to billing or accounting quarters. The Franchisee shall notify the LFA of such a change
not less than thirty (30) days in advance.
C. The Franchisee will offer Subscribers "appointment window" alternatives for
arrival to perform installations, Service Calls and other activities of a maximum four (4) hours
scheduled time block during appropriate daylight available hours, usually beginning at 8:00 AM
unless it is deemed appropriate to begin earlier by location exception. At the Franchisee's
discretion, the Franchisee may offer Subscribers appointment arrival times other than these four
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(4) hour time blocks, if agreeable to the Subscriber. These hour restrictions do not apply to
weekends.
SECTION 4: SERVICE INTERRUPTIONS AND OUTAGES
A. The Franchisee shall notify the LFA of any Significant Outage of the Cable
Service.
B. The Franchisee shall exercise commercially reasonable efforts to limit any
Significant Outage for the purpose of maintaining, repairing, or constructing the Cable System.
Except in an emergency or other situation necessitating a more expedited or alternative
notification procedure, the Franchisee may schedule a Significant Outage for a period of more
than four (4) hours during any twenty-four (24) hour period only after the LFA and each affected
Subscriber in the Service Area have been given fifteen (15) days prior notice of the proposed
Significant Outage. Notwithstanding the forgoing, Franchisee may perform modifications,
repairs and upgrades to the System between 12:01 a.m. and 6 a.m. which may interrupt service,
and this Section's notice obligations respecting such possible interruptions will be satisfied by
notice provided to Subscribers upon installation and in the annual subscriber notice.
C. Franchisee representatives who are capable of responding to Service Interruptions
must be available to Respond twenty-four (24) hours a day, seven (7) days a week.
D. Under Normal Operating Conditions, the Franchisee must Respond to a call from
a Subscriber regarding a Service Interruption or other service problems within the following time
frames:
(1) Within twenty-four (24) hours, including weekends, of receiving
subscriber calls respecting Service Interruptions in the Service Area.
(2) The Franchisee must begin actions to correct all other Cable Service
problems the next business day after notification by the Subscriber or the LFA of a Cable Service
problem.
E. Under Normal Operating Conditions, the Franchisee shall complete Service
Calls within seventy-two (72) hours of the time Franchisee commences to Respond to the
Service Interruption, not including weekends and situations where the Subscriber is not
reasonably available for a Service Call to correct the Service Interruption within the seventy-two
(72) hour period.
F. The Franchisee shall meet the standard in Subsection E. of this Section for ninety
percent (90%) of the Service Calls it completes, as measured on a quarterly basis.
G. Under Normal Operating Conditions, the Franchisee shall provide a credit upon
Subscriber request when all Channels received by that Subscriber are out of service for a period
of four (4) consecutive hours or more. The credit shall equal, at a minimum, a proportionate
amount of the affected Subscriber(s) current monthly bill. In order to qualify for the credit, the
Subscriber must promptly report the problem and allow the Franchisee to verify the problem if
Camas, Washington 27
Seattl -3424349.5 0010932-00119
requested by the Franchisee. If Subscriber availability is required for repair, a credit will not be
provided for such time, if any, that the Subscriber is not reasonably available.
H. Under Normal Operating Conditions, if a Significant Outage affects all Video
Programming Cable Services for more than twenty-four (24) consecutive hours, the Franchisee
shall issue an automatic credit to the affected Subscribers in the amount equal to their monthly
recurring charges for the proportionate time the Cable Service was out, or a credit to the affected
subscribers in the amount equal to the charge for the basic plus enhanced basic level of service
for the proportionate time the Cable Service was out, whichever is technically feasible or, if both
are technically feasible, as determined by Franchisee provided such determination is non-
discriminatory. Such credit shall be reflected on Subscriber billing statements within the next
available billing cycle following the outage.
SECTION 5: CUSTOMER COMPLAINTS
Under Normal Operating Conditions, the Franchisee shall investigate Subscriber
complaints referred by the LFA within five (5) business days. The Franchisee shall notify the
LFA of those matters that necessitate an excess of five (5) business days to resolve, but those
matters must be resolved within fifteen (15) days of the initial complaint. The LFA may require
reasonable documentation to be provided by the Franchisee to substantiate the request for
additional time to resolve the problem. For purposes of this Section, "resolve" means that the
Franchisee shall perform those actions, which, in the normal course of business, are necessary to
investigate the Customer's complaint and advise the Customer of the results of that investigation.
SECTION 6: BILLING
A. Subscriber bills must be itemized to describe Cable Services purchased by
Subscribers and related equipment charges. Bills shall clearly delineate activity during the
billing period, including optional charges, rebates, credits, and aggregate late charges. Franchisee
shall, without limitation as to additional line items, be allowed to itemize as separate line items,
Franchise fees, taxes and/or other governmentally imposed fees. The Franchisee shall maintain
records of the date and place of mailing of bills.
B. Every Subscriber with a current account balance sending payment directly to
Franchisee shall be given at least twenty (20) days from the date statements are mailed to the
Subscriber until the payment due date.
C. A specific due date shall be listed on the bill of every Subscriber whose account is
current. Delinquent accounts may receive a bill which lists the due date as upon receipt;
however, the current portion of that bill shall not be considered past due except in accordance
with Subsection 6.B. above.
D. Any Subscriber who, in good faith, disputes all or part of any bill shall have the
option of withholding the disputed amount without disconnect or late fee being assessed until the
dispute is resolved provided that:
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Seattle -3424349.5 0010932-00119
(1) The Subscriber pays all undisputed charges;
(2) The Subscriber provides notification of the dispute to Franchisee within
five (5) days prior to the due date; and
(3) The Subscriber cooperates in determining the accuracy and/or
appropriateness of the charges in dispute.
(4) It shall be within the Franchisee's sole discretion to determine when the
dispute has been resolved.
E. Under Normal Operating Conditions, the Franchisee shall initiate investigation
and resolution of all billing complaints received from Subscribers within five (5) business days
of receipt of the complaint. Final resolution shall not be unreasonably delayed.
F. The Franchisee shall provide a telephone number and address on the bill for
Subscribers to contact the Franchisee.
G. The Franchisee shall forward a copy of any Cable Service related billing inserts or
other mailing sent to Subscribers to the LFA upon request.
H. The Franchisee shall provide all Subscribers with the option of paying for Cable
Service by check or an automatic payment option where the amount of the bill is automatically
deducted from a checking account designated by the Subscriber. Franchisee may in the future, at
its' discretion, permit payment by using a major credit card on a preauthorized basis. Based on
credit history, at the option of the Franchisee, the payment alternative may be limited.
I. LFA hereby requests that Franchisee omit LFA name, address and telephone
number from Franchise bill as permitted by 47 CFR 76.952.
SECTION 7: DEPOSITS, REFUNDS AND CREDITS
A. The Franchisee may require refundable deposits from Subscribers 1) with a poor
credit or poor payment history, 2) who refuse to provide credit history information to the
Franchisee, or 3) who rent Subscriber equipment from the Franchisee, so long as such deposits
are applied on a non-discriminatory basis. The deposit the Franchisee may charge Subscribers
with poor credit or poor payment history or who refuse to provide credit information may not
exceed an amount equal to an average Subscriber's monthly charge multiplied by six (6). The
maximum deposit the Franchisee may charge for Subscriber equipment is the cost of the
equipment which the Franchisee would need to purchase to replace the equipment rented to the
Subscriber.
B. The Franchisee shall refund or credit the Subscriber for the amount of the deposit
collected for equipment, which is unrelated to poor credit or poor payment history, after one year
and provided the Subscriber has demonstrated good payment history during this period. The
Franchisee shall pay interest on other deposits if required by law.
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Seattle -3424349.5 0010932-00119
C. Under Normal Operating Conditions, refund checks will be issued within the next
available billing cycle following the resolution of the event giving rise to the refund, (e.g.
equipment return and final bill payment).
D. Credits for Cable Service will be issued no later than the Subscriber's next
available billing cycle, following the determination that a credit is warranted, and the credit is
approved and processed. Such approval and processing shall not be unreasonably delayed.
E. Bills shall be considered paid when appropriate payment is received by the
Franchisee or its' authorized agent. Appropriate time considerations shall be included in the
Franchisee's collection procedures to assure that payments due have been received before late
notices or termination notices are sent.
SECTION 8: RATES, FEES AND CHARGES
A. The Franchisee shall not, except to the extent permitted by law, impose any fee or
charge for Service Calls to a Subscriber's premises to perform any repair or maintenance work
related to Franchisee equipment necessary to receive Cable Service, except where such problem
is caused by a negligent or wrongful act of the Subscriber (including, but not limited to a
situation in which the Subscriber reconnects Franchisee equipment incorrectly) or by the failure
of the Subscriber to take reasonable precautions to protect the Franchisee's equipment (for
example, a dog chew).
B. The
Franchisee
shall
provide reasonable notice to Subscribers of the possible
assessment of a late
fee on bills
or by
separate notice.
SECTION 9: DISCONNECTION /DENIAL OF SERVICE
A. The Franchisee shall not terminate Cable Service for nonpayment of a delinquent
account unless the Franchisee mails a notice of the delinquency and impending termination prior
to the proposed final termination. The notice shall be mailed to the Subscriber to whom the
Cable Service is billed. The notice of delinquency and impending termination may be part of a
billing statement.
B. Cable Service terminated in error must be restored without charge within twenty-
four (24) hours of notice. If a Subscriber was billed for the period during which Cable Service
was terminated in error, a credit shall be issued to the Subscriber if the Service Interruption was
reported by the Subscriber.
C. Nothing in these standards shall limit the right of the Franchisee to deny Cable
Service for non-payment of previously provided Cable Services, refusal to pay any required
deposit, theft of Cable Service, damage to the Franchisee's equipment, abusive and/or threatening
behavior toward the Franchisee's employees or representatives, or refusal to provide credit
Camas, Washington 30
Seattle -3424349.5 0010932-00119
history information or refusal to allow the Franchisee to validate the identity, credit history and
credit worthiness via an external credit agency.
SECTION 10: COMMUNICATIONS WITH SUBSCRIBERS
A. All Franchisee personnel, contractors and subcontractors contacting Subscribers
or potential Subscribers outside the office of the Franchisee shall wear a clearly visible
identification card bearing their name and photograph. The Franchisee shall make reasonable
effort to account for all identification cards at all times. In addition, all Franchisee
representatives shall wear appropriate clothing while working at a Subscriber's premises. Every
service vehicle of the Franchisee and its contractors or subcontractors shall be clearly identified
as such to the public. Specifically, Franchisee vehicles shall have the Franchisee's logo plainly
visible. The vehicles of those contractors and subcontractors working for the Franchisee shall
have the contractor's / subcontractor's name plus markings (such as a magnetic door sign)
indicating they are under contract to the Franchisee.
B.
All contact with a
Subscriber
or potential
Subscriber by a Person representing the
Franchisee
shall
be conducted in
a courteous
manner.
C. The Franchisee shall send annual notices to all Subscribers informing them that
any complaints or inquiries not satisfactorily handled by the Franchisee may be referred to the
LFA.
D. All notices identified in this Section shall be by either:
(1) A separate document included with a billing statement or included on the
portion of the monthly bill that is to be retained by the Subscriber; or
(2) A separate electronic notification
E. The Franchisee shall provide reasonable notice to Subscribers of any pricing
changes or additional changes (excluding sales discounts, new products or offers) and, subject to
the forgoing, any changes in Cable Services, including channel line-ups. Such notice must be
given to Subscribers a minimum of thirty (30) days in advance of such changes if within the
control of the Franchisee, and the Franchisee shall provide a copy of the notice to the LFA
including how and where the notice was given to Subscribers.
F. The Franchisee shall provide information to all Subscribers about each of the
following items at the time of installation of Cable Services, annually to all Subscribers, at any
time upon request, and, subject to Subsection 10.E., at least thirty (30) days prior to making
significant changes in the information required by this Section if within the control of the
Franchisee:
(1) Products and Cable Service offered;
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Seattle 3424349.5 0010932-00119
(2) Prices and options for Cable Services and condition of subscription to
Cable Services. Prices shall include those for Cable Service options, equipment rentals, program
guides, installation, downgrades, late fees and other fees charged by the Franchisee related to
Cable Service;
(3) Installation and maintenance policies including, when applicable,
information regarding the Subscriber's in-home wiring rights during the period Cable Service is
being provided;
(4) Channel positions of Cable Services offered on the Cable System;
(5) Complaint procedures, including the name, address and telephone number
of the LFA, but with a notice advising the Subscriber to initially contact the Franchisee about all
complaints and questions;
(6) Procedures for requesting Cable Service credit;
(7) The availability of a parental control device;
(8) Franchisee practices and procedures for protecting against invasion of
privacy; and
(9) The address and telephone number of the Franchisee's office to which
complaints may be reported.
A copy of notices required in this Subsection 10.F. will be given to the LFA at least
fifteen (15) days prior to distribution to subscribers if the reason for notice is due to a change that
is within the control of Franchisee and as soon as possible if not within the control of Franchisee.
G. Notices of changes in rates shall indicate the Cable Service new rates and old
rates, if applicable.
H. Notices of changes of Cable Services and/or Channel locations shall include a
description of the new Cable Service, the specific channel location, and the hours of operation of
the Cable Service if the Cable Service is only offered on a part-time basis. In addition, should
the channel location, hours of operation, or existence of other Cable Services be affected by the
introduction of a new Cable Service, such information must be included in the notice.
I. Every notice of termination of Cable Service shall include the following
information:
(1) The name and address of the Subscriber whose account is delinquent;
(2) The amount of the delinquency for all services billed;
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Seattle -3424349.5 0010932-00119
(3) The date by which payment is required in order to avoid termination of
Cable Service; and
(4) The telephone number for the Franchisee where the Subscriber can receive
additional information about their account and discuss the pending termination.
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