Ordinance 1217
COMCAST OF OREGON II, INC. FRANCHISE

ORDINANCE NO. 1217

AN ORDINANCE GRANTING COMCAST OF OREGON II, INC. A NON-EXCLUSIVE FRANCHISE FOR THE CONSTRUCTION, OPERATION, AND MAINTENANCE OF A CABLE SYSTEM AND REPEALING ORDINANCE NO. 1114.

WHEREAS, the City of Junction City (the City) and Comcast of Oregon II, Inc. (Comcast) by Ordinance No. 1217 entered into a franchise agreement for the construction, operation and maintenance of a cable system within the City’s right of way and the franchise agreement is for a term of ten (10) years; and

WHEREAS, pursuant to Federal law, state statutes, the City Charter and local ordinances, the City is authorized to grant non-exclusive franchises to occupy public rights-of-way; and

WHEREAS, City finds that Comcast has substantially complied with the material terms of its prior franchise, and that the financial, legal and technical ability of Comcast is sufficient to provide the services, facilities, and equipment necessary to meet the future cable-related needs of the community; and

WHEREAS, it is a goal of the City to work cooperatively with cable providers to promote competitive access to the City’s cable market and it is the City’s duty to responsibly manage private access to the public rights-of-way; and

WHEREAS, the City and Comcast have negotiated a new Franchise Agreement with terms agreeable to both parties and wish to execute and enter into the new Franchise; now, therefore

THE CITY OF JUNCTION CITY ORDAINS AS FOLLOWS:

Section 1. The foregoing recitals are approved and hereby incorporated into this Ordinance.

Section 2. The Franchise Agreement with Comcast of Oregon II, attached as Exhibit A, is hereby adopted by the City Council. The Mayor is authorized to execute the agreement on behalf of the Council.

Section 3. This Ordinance shall be in full force and effect 30 days after approval, in accordance with the City Charter. The City Recorder shall forward this Franchise Agreement to Comcast of Oregon II for acceptance.

Read in full, for its first reading this 13th day of August, 2013.

Read by title only, for its second reading this 13th day of August, 2013.

Passed unanimously by the City Council this 13th day of August, 2013.

Approved by the Mayor this 13th day of, August, 2013.

ATTEST:		APPROVED:
________________________		___________________________
Kitty Vodrup, City Recorder		David S. Brunscheon, Mayor

CABLE TELEVISION FRANCHISE

Between

THE CITY OF JUNCTION CITY, OREGON

and

COMCAST OF OREGON II, INC.

This Franchise Agreement (hereinafter, the “Agreement” or “Franchise Agreement”) is made between the City of Junction City, Oregon (hereinafter, “City”) and Comcast of Oregon II, Inc. (hereinafter, “Grantee”).

The City, having determined that the financial, legal, and technical ability of the Grantee is reasonably sufficient to provide the services, facilities, and equipment necessary to meet the future cable-related needs of the community, desires to enter into this Franchise Agreement with the Grantee for the construction, operation and maintenance of a Cable System on the terms and conditions set forth herein.

SECTION 1 – Definition of Terms

For the purpose of this Franchise Agreement, capitalized terms, phrases, words, and abbreviations shall have the meanings ascribed to them in the Cable Communications Policy Act of 1984, as amended from time to time, 47 U.S.C. §§ 521 et seq. (the “Cable Act”), unless otherwise defined herein.

1.1. “Cable Service” means the one-way transmission of video programming or other programming service to Subscribers, and Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

1.2. “Cable System” shall have the meaning set forth in the Cable Act.

1.3 “Customer” means a Person or user of the Cable System who lawfully receives Cable Service therefrom with the Grantee’s express permission.

1.4 “Facilities” means cable lines, conduits and any related equipment, other than customer premises equipment, used by Grantee for provision of Cable Services through its Cable System, in or on the Public Right of Way within the Franchise Area.

1.5. “Effective Date” means the date on which all persons necessary to sign this Agreement in order for it to be binding on both parties have executed this Agreement as indicated on the signature page(s), unless a specific date is otherwise provided in the “Term” section herein.

1.6. “FCC” means the Federal Communications Commission or successor governmental entity thereto.

1.7. “Franchise” means the initial authorization, or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, agreement, permit, license, resolution, contract, certificate, ordinance or otherwise, which authorizes the construction and operation of the Cable System.

1.8 “Franchise Agreement” or “Agreement” shall mean this Agreement and any amendments or modifications hereto.

1.9. “Franchise Area” means the present legal boundaries of the City as of the Effective Date, and shall also include any additions thereto, by annexation or other legal means.

1.10. “Franchising Authority” means the City of Junction City, Oregon, or the lawful successor, transferee, designee, or assignee thereof.

1.11. “Grantee” shall mean Comcast of Oregon II, Inc.

1.12 “Gross Revenue” means all revenue derived by Grantee from the operation of the Cable System to provide Cable Service to Subscribers within the Franchise Area in accordance with Generally Accepted Accounting Principles (GAAP). Gross Revenue shall not include any taxes on services furnished by Grantee imposed directly on any Subscriber or user by any city, state or other governmental unit and collected by Grantee for such governmental unit. Gross Revenue shall also not include revenue from advertising and leased channels, advertising sales commissions, launch fees and marketing reimbursements or home shopping revenue, refundable deposits, bad debt written off by Grantee in the normal course of business, provided however that bad debt recoveries shall be included in Gross Revenue during the period collected, late fees, investment income, nor any taxes, fees or assessments imposed or assessed by any governmental authority.

1.13 “Person” means any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for profit, but shall not mean the Franchising Authority.

1.14 “Public Way” or “Right of Way” shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, way, lane, public way, drive, circle or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchising Authority in the Franchise Area. Public Way shall also mean any easement now or hereafter held by the Franchising Authority within the Franchise Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the Franchising Authority and the Grantee to the use thereof for the purposes of installing, operating, and maintaining the Grantee’s Cable System over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Cable System.

However, “utility easement” does not include any easement dedicated solely for Franchising Authority’s facilities or where the proposed use by Grantee is inconsistent with the terms and conditions of any easement granted to the City, unless agreed to in writing by Franchising Authority.

SECTION 2 – Grant of Authority

2.1. The Franchising Authority hereby grants to the Grantee under the Cable Act a nonexclusive Franchise authorizing the Grantee to construct and operate a Cable System in, along, among, upon, across, above, over, under, or in any manner connected with Public Ways and easements within the Franchise Area, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any Public Way and all extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the Cable System. Nothing in this Franchise shall be construed to prohibit Grantee from offering any service over its Cable System that is not prohibited by federal or state law.

2.2. Term of Franchise. The term of the Franchise granted hereunder shall be ten (10) years, commencing upon the Effective Date of the Franchise, unless the Franchise is renewed or is lawfully revoked in accordance with the terms of this Franchise Agreement and the Cable Act.

2.3. Renewal. Any renewal of this Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended.

2.4. Reservation of Authority. Nothing in this Franchise Agreement shall (A) abrogate the right of the Franchising Authority to perform any public works or construct, install, maintain, remove, relocate, replace or operate public facilities or improvements of any description; (B) be construed as a waiver of any codes or ordinances of general applicability promulgated by the Franchising Authority, or (C) be construed as a waiver or release of the rights of the Franchising Authority in and to the Public Ways.

The Franchising Authority has jurisdiction and exercises regulatory management over the Public Way whether the Franchising Authority has a fee, easement or other legal interest in the Public Way and whether the legal interest was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means.

2.5. Competitive Equity.

2.5.1. The Grantee acknowledges and agrees that the Franchising Authority reserves the right to grant additional franchises or other similar lawful authorization to provide Cable Services within the Service Area. The Franchising Authority agrees that, within ninety (90) days of the Grantee’s request, it shall amend this Franchise to include any material terms or conditions that it makes available to a new Cable Services entrant, or provide relief from existing material terms or conditions, so as to insure that the regulatory and financial burdens on each entity are materially equivalent. “Material terms and conditions” include, but are not limited to: Franchise Fees; insurance; Cable System build-out requirements; security instruments; customer service standards; required reports and related record keeping; and notice and opportunity to cure breaches. The parties agree that this provision shall not require a word for word identical franchise or authorization for a competitive entity, so long as the regulatory and financial burdens on each entity are materially equivalent. Video Programming services delivered over wireless broadband networks are specifically exempted from the requirements of this Section.

2.5.2. Notwithstanding any provision to the contrary, at any time that a non-wireless facilities based entity, legally authorized by state or federal law, makes available for purchase by Subscribers or customers, Cable Services or multiple channels of video programming within the Franchise Area without a franchise or other similar lawful authorization granted by the Franchising Authority, then Grantee may seek modification as per Section 2.5.1. above, or the term of Grantee’s Franchise shall, upon ninety (90) days written notice from Grantee, be shortened so that the Franchise shall be deemed to expire on a date six (6) months from the first day of the month following the date of Grantee’s notice.

SECTION 3 – Construction and Maintenance of the Cable System

3.1. Permits and General Obligations. The Grantee shall be responsible for obtaining, at its own cost and expense, all permits, licenses, or other forms of approval or authorization necessary to construct, operate, maintain or repair the Cable System, or any part thereof, prior to the commencement of any such activity. Construction, installation, and maintenance of the Cable System shall be performed in a safe, thorough and reliable manner using materials of good and durable quality. All transmission and distribution structures, poles, other lines, and equipment installed by the Grantee for use in the Cable System in accordance with the terms and conditions of this Franchise Agreement shall be located so as to minimize the interference with the proper use of the Public Ways and the rights and reasonable convenience of property owners who own property that adjoins any such Public Way.

3.2. Conditions on Street Occupancy.

3.2.1. New Grades or Lines. If the grades or lines of any Public Way within the Franchise Area are lawfully changed or affected (including water and sewer lines) at any time during the term of this Franchise Agreement, then the Grantee shall, upon reasonable advance written notice from the Franchising Authority (which shall not be less than ten (10) business days) and at its own cost and expense, protect or promptly alter or relocate the Cable System, or any part thereof, so as to conform with any such new grades or lines.

3.2.2. Relocation at Request of Third Party. The Grantee shall, upon reasonable prior written request of any Person holding a permit issued by the Franchising Authority to move any structure, temporarily move its wires or other Facilities to permit the moving of such structure; provided: (i) the Grantee may impose a reasonable charge on any Person for the movement of its wires or other Facilities, and such charge may be required to be paid in advance of the movement of its wires or other Facilities; and (ii) the Grantee is given not less than ten (10) business days advance written notice to arrange for such temporary relocation.

3.2.3. Restoration of Public Ways. If in connection with the construction, operation, maintenance, or repair of the Cable System, the Grantee disturbs, alters, or damages any Public Way, the Grantee agrees that it shall at its own cost and expense replace and restore any such Public Way to the same or better condition that existed prior to such work.

3.2.4. Safety Requirements and Non-Interference. The Grantee shall, at its own cost and expense, undertake all necessary and appropriate efforts to maintain its work sites in a safe manner in order to prevent failures and accidents that may cause damage, injuries or nuisances. All work undertaken on the Cable System shall be performed in accordance with applicable FCC or other federal and state regulations. The Cable System shall not unreasonably endanger or interfere with the safety of Persons or property in the Franchise Area.

All Grantee’s Facilities shall be constructed and maintained in such a manner so as not to interfere with the City’s or public’s use of the Right of Way or with any public irrigation, sewers, water mains, conduits, sidewalks, paving or other related improvements. If any of the Grantee’s Facilities unreasonably interfere with Franchising Authority’s use or public’s use of such Right of Way, Grantee shall remove such Facilities at Grantee’s sole expense and in coordination with the Franchising Authority. If Grantee fails to remove such Facilities after receipt of Franchising Authority’s written notice of interference providing a reasonable period of time, Franchising Authority may cause such removal or relocation at Grantee’s sole expense.

3.2.5. Trimming of Trees and Shrubbery. The Grantee shall have the authority to trim trees or other natural growth overhanging any of its Cable System in the Franchise Area so as to prevent contact with the Grantee’s wires, cables, or other equipment. All such trimming shall be done at the Grantee’s sole cost and expense. The Grantee shall be responsible for using generally accepted horticultural standards and for any damage caused by such trimming. Nothing in this subsection shall limit Grantee’s right to trim trees or natural growth which pose an immediate safety risk to the public.

3.2.6. Aerial and Underground Construction. Where all of the transmission and distribution facilities of all of the respective public or municipal utilities in any area of the Franchise Area are underground, the Grantee shall place its Cable Systems’ transmission and distribution facilities underground; provided that such underground locations are actually capable of accommodating the Grantee’s cable lines. In any region(s) of the Franchise Area where the transmission or distribution facilities of utilities are both aerial and underground, the Grantee shall have the discretion to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. Nothing in this Section shall be construed to require the Grantee to construct, operate, or maintain underground any ground-mounted appurtenances such as customer taps, line extenders, system passive devices, amplifiers, power supplies, pedestals, or other related equipment.

3.2.7 Reimbursement of Costs. If funds are available to any utility using the Public Way for the purpose of defraying the cost of any relocation of facilities along or within the Public Way required by the Franchising Authority, Grantee shall be reimbursed in the same manner in which utilities affected by the required relocation are reimbursed, provided, however, the Franchising Authority has sufficient funds designated for reimbursement to Grantee. If funds are controlled by another government entity, the Franchising Authority shall make application for such funds on behalf of Grantee.

SECTION 4 – Service Obligations

4.1. General Service Obligation. The Grantee shall make Cable Service available to every residential dwelling unit within the Franchise Area where the minimum density is at least ten (10) dwelling units per quarter (1/4) cable mile (1320 cable-bearing strand feet) and is within one (1) mile of the existing Cable System. Subject to the density requirement, Grantee shall offer Cable Service to all new homes or previously unserved homes located within 125 feet of the Grantee’s distribution cable within the Franchise Area at no cost to the Subscriber for the cable extension except for published standard/nonstandard installation charge.

No Subscriber shall be refused services arbitrarily. However, for areas not meeting the above density requirement, Grantee shall only be required to extend the Cable System to Subscribers in the area if the Subscribers are willing to share the capital costs of extending the Cable System. Specifically, the Grantee shall contribute a capital amount equal to the construction cost per mile, multiplied by a fraction whose numerator equals the actual number of residences per 1320 cable-bearing strand feet from Grantee’s trunk or distribution cable, and whose denominator equals ten (10). Subscribers who request service shall bear the remaining cost to extend the Cable system on a pro rata basis. The Grantee may require that payment of the capital contribution in aid of construction borne by such potential Subscribers be paid in advance. Subscriber shall also be responsible for any standard/nonstandard installation charges to extend the Cable System from the tap to the residence.

The Grantee may elect to provide Cable Service to areas not meeting the above density and distance standards including the Urban Growth Boundary area directly adjacent and contiguous to the Franchise Area. The Grantee may impose an additional charge in excess of its regular installation charge for any service installation requiring a drop in or line extension in excess of the above standards. Any such additional charge shall be computed on a time plus materials basis to be calculated on that portion of the installation that exceeds the standards set forth above.

4.2. New Developments. The Franchising Authority shall provide the Grantee with written notice of the issuance of building or development permits for planned developments within the Franchise Area requiring undergrounding of cable facilities. The Franchising Authority agrees to require the developer, as a condition of issuing the permit, to give the Grantee access to open trenches for deployment of cable lines and conduits and to require the developer to provide at least ten (10) business day’s written notice of the date of availability of open trenches. Developer shall be responsible for the digging and backfilling of all trenches. The Grantee shall be responsible for engineering and deployment of labor applicable to its cable lines and conduits. If requested to by the Franchising Authority, Grantee shall meet with the necessary parties to coordinate construction in the Rights of Way to minimize public inconvenience, disruption or damages.

4.3. Programming. The Grantee shall offer to all Customers a diversity of video programming services.

4.4. No Discrimination. Neither the Grantee nor any of its employees, agents, representatives, contractors, subcontractors, or consultants, nor any other Person, shall discriminate or permit discrimination between or among any Persons in the availability of Cable Services provided in connection with the Cable System in the Franchise Area. All Persons may receive all available Cable Services so long as such Person’s financial or other obligations to the Grantee are satisfied. Nothing contained herein shall prohibit the Grantee from offering bulk discounts, promotional discounts, package discounts, or other such pricing strategies as part of its business practice.

4.5. Prohibition Against Reselling Service. No Person shall resell any Cable Service, program or signal transmitted over the Cable System by the Grantee.

SECTION 5 – Fees and Charges to Customers

All rates, fees, charges, deposits and associated terms and conditions to be imposed by the Grantee for any Cable Service as of the Effective Date shall be in accordance with applicable FCC’s rate regulations. Before any new or modified rate, fee, or charge is imposed, the Grantee shall follow the applicable FCC notice requirements and rules and notify affected Customers, which notice may be by any means permitted under applicable law.

SECTION 6 – Customer Service Standards; Customer Bills; and Privacy Protection

6.1. Customer Service Standards. The Franchising Authority hereby adopts the customer service standards set forth in Part 76, §76.309 of the FCC’s rules and regulations, as amended. The Grantee shall comply in all respects with the customer service requirements established by the FCC.

6.2. Customer Bills. Customer bills shall be designed in such a way as to present the information contained therein clearly and comprehensibly to Customers, and in a way that (A) is not misleading and (B) does not omit material information. Notwithstanding anything to the contrary in Section 6.1, above, the Grantee may, in its sole discretion, consolidate costs on Customer bills as may otherwise be permitted by Section 622(c) of the Cable Act (47 U.S.C. §542(c)).

6.3. Privacy Protection. The Grantee shall comply with all applicable federal and state privacy laws, including Section 631 of the Cable Act and regulations adopted pursuant thereto.

SECTION 7 – Oversight and Regulation by Franchising Authority

7.1. Franchise Fee. The Grantee shall pay to the Franchising Authority a franchise fee in an amount equal to five percent (5%) of annual Gross Revenues; provided, however, that Grantee shall not be compelled to pay any higher percentage of franchise fees than any other cable operator providing service in the Franchise Area. The payment of franchise fees shall be made on a quarterly basis and shall be due forty-five (45) days after the close of each calendar quarter or after the close of the prior calendar year. Each franchise fee payment shall be accompanied by a report prepared by a representative of the Grantee showing the basis for the computation of the Franchise Fees paid during that period.

7.2. Franchise Fees Subject to Audit and Inspection

7.2.1. Upon reasonable prior written notice, during normal business hours, at Grantee’s principal business office, the Franchising Authority shall have the right to audit and/or inspect the Grantee’s financial records used to calculate the Franchising Authority’s franchise fees. However, the Grantee shall only be responsible for paying any amounts discovered to be owed to the Franchising Authority from such audit or inspection if such amounts were paid (or should have been paid) within thirty six (36) months of the Franchising Authority’s notice of audit and inspection, after which period any such payment shall be considered final.

7.2.2. Upon the completion of any such audit by the Franchising Authority, the Franchising Authority shall provide to the Grantee a final report setting forth the Franchising Authority’s findings in detail, including any and all substantiating documentation. In the event it is determined that franchise fees for the audit or inspection period have been underpaid, the Franchising Authority shall notify Grantee in writing of its determination. Upon receipt, Grantee shall have thirty (30) days to pay the amount due and owing or to notify the Franchising Authority if it disagrees with the Franchising Authority’s determination. The Franchising Authority and Grantee shall discuss all disputed amounts. In the event the parties are not able to reach an agreement on mutually acceptable terms and conditions, either party may pursue their legal remedies. The entire reasonable costs of such audit or inspection shall be borne by the Grantee if the review results in an underpayment of five percent (5%) or more for the period under review.

7.3. Oversight of Franchise. In accordance with applicable law, the Franchising Authority shall have the right to oversee, regulate and, on reasonable prior written notice and in the presence of Grantee’s employee, periodically inspect the construction, operation and maintenance of the Cable System in the Franchise Area, and all parts thereof, as necessary to monitor Grantee’s compliance with the provisions of this Franchise Agreement.

7.4. Technical Standards. The Grantee shall comply with all applicable technical standards of the FCC as published in subpart K of 47 C.F.R. § 76. To the extent those standards are altered, modified, or amended during the term of this Franchise, the Grantee shall comply with such altered, modified or amended standards within a reasonable period after such standards become effective. The Franchising Authority shall have, upon written request, the right to obtain a copy of tests and records required to be performed pursuant to the FCC’s rules.

7.5. Maintenance of Books, Records, and Files.

7.5.1. Books and Records. Throughout the term of this Franchise Agreement, the Grantee agrees that the Franchising Authority, upon reasonable prior written notice to the Grantee, may review such of the Grantee’s books and records at its business office in Oregon regarding the operation of the Cable System and the provision of Cable Service in the Franchise Area which are reasonably necessary to monitor Grantee’s compliance with the provisions of this Franchise Agreement at the Grantee’s business office, during normal business hours, and without unreasonably interfering with Grantee’s business operations. Such books and records shall include any records related to this Franchise Agreement or required to be kept in a public file by the Grantee pursuant to the rules and regulations of the FCC. All such documents pertaining to financial matters that may be the subject of an inspection by the Franchising Authority shall be retained by the Grantee for a minimum period of three (3) years.

7.5.2. File for Public Inspection. Throughout the term of this Franchise Agreement, the Grantee shall maintain at its business office, in a file available for public inspection during normal business hours, those documents required pursuant to the FCC’s rules and regulations.

7.5.3. Proprietary Information. Notwithstanding anything to the contrary set forth in this Section, the Grantee shall not be required to disclose information which is proprietary or confidential in nature. The Franchising Authority agrees to treat any information disclosed by the Grantee as confidential and only to disclose it to those employees, representatives, and agents of the Franchising Authority that have a need to know in order to enforce this Franchise Agreement and who agree to maintain the confidentiality of all such information, subject to Oregon’s public records disclosure laws. The Grantee shall not be required to provide Customer information in violation of Section 631 of the Cable Act or any other applicable federal or state privacy law. For purposes of this Section, the terms “proprietary or confidential” include, but are not limited to, information relating to the Cable System design, customer lists, marketing plans, financial information unrelated to the calculation of franchise fees or rates pursuant to FCC rules, or other information that is reasonably shown by the Grantee to be competitively sensitive. In the event that the Franchising Authority receives a request under a state “sunshine,” public records or similar law for the disclosure of information the Grantee has designated as confidential, trade secret or proprietary under federal or Oregon law, the Franchising Authority shall notify Grantee of such request and cooperate with Grantee in opposing such request.

SECTION 8 – Transfer or Change of Control of Cable System or Franchise

8.1. Neither the Grantee nor any other Person may transfer the Cable System or the Franchise without the prior written consent of the Franchising Authority, which consent shall not be unreasonably withheld or delayed. No change in control of the Grantee, defined as an acquisition of 50% or greater ownership interest in Grantee, shall take place without the prior written consent of the Franchising Authority, which consent shall not be unreasonably withheld or delayed. No consent shall be required, however, for (i) a transfer in trust, by mortgage, hypothecation, or by assignment of any rights, title, or interest of the Grantee in the Franchise or in the Cable System in order to secure indebtedness, or (ii) a transfer to an entity directly or indirectly owned or controlled by Comcast Corporation. Within thirty (30) days of receiving a request for consent, the Franchising Authority shall, in accordance with FCC rules and regulations, notify the Grantee in writing of the additional information, if any, it requires to determine the legal, financial and technical qualifications of the transferee or new controlling party. If the Franchising Authority has not taken action on the Grantee’s request for consent within one hundred twenty (120) days after receiving such request, consent shall be deemed given.

SECTION 9 – Insurance and Indemnity

9.1. Insurance. Throughout the term of this Franchise Agreement, the Grantee shall, at its own cost and expense, maintain Comprehensive General Liability Insurance and provide the Franchising Authority certificates of insurance designating the Franchising Authority and its officers, boards, commissions, councils, elected officials, agents and employees as additional insureds and demonstrating that the Grantee has obtained the insurance required in this Section. Such policy or policies shall be in the minimum amount of One Million Dollars ($1,000,000.00) for bodily injury or death to any one person, and One Million Dollars ($1,000,000.00) for bodily injury or death of any two or more persons resulting from one occurrence, and One Million Dollars ($1,000,000.00) for property damage resulting from any one accident. Such policy or policies shall be non-cancelable except upon thirty (30) days prior written notice to the Franchising Authority. The Grantee shall provide workers’ compensation coverage in accordance with applicable State law. The Grantee shall defend, indemnify and hold harmless the Franchising Authority from any workers compensation claims to which the Grantee may become subject during the term of this Franchise Agreement.

9.2. Indemnification. The Grantee shall indemnify, defend and hold harmless the Franchising Authority, its officers, employees, and agents from and against any liability or claims resulting from property damage or bodily injury (including accidental death) that arise out of Grantee’s construction, operation, maintenance or removal of the Cable System within the Franchise Area. Such indemnification shall include, but not be limited to: reasonable attorneys. fees, costs or expenses. This duty to defend, indemnify and hold harmless shall not extend to any negligence or gross negligence of the Franchising Authority or its officers, employees, and agents. The Franchising Authority shall provide Grantee with prompt written notice to indemnify and defend any such claims. The Franchising Authority may, at its own cost, defend or participate in the defense of a claim.

SECTION 10 – Performance and Construction Bonds

10.1. Performance Bond. Within sixty (60) days following receipt of written request from Franchising Authority, Grantee shall post a performance bond in the amount of $50,000 as surety for the faithful performance and discharge by Grantee of all obligations imposed by this Franchise Agreement. The performance bond shall remain in force and effect throughout the Term of this Franchise Agreement. If Grantee fails to timely pay an assessment of liquidated damages or franchise fees, the Franchising Authority shall give Grantee twenty (20) business days’ notice of its intent to draw the amount owed from the performance bond. The Franchising Authority may not draw from the security bond while any court action appeal or other process has been instituted by Grantee to challenge the amount owed.

SECTION 11 – System Description and Service

11.1. System Capacity. During the term of this Agreement the Grantee’s Cable System shall be capable of providing a minimum of 85 channels of video programming with satisfactory reception available to its customers in the Franchise Area.

11.2. Service to School Buildings. Grantee will provide at no cost one (1) “Basic” service, or its equivalent in a digital tier if necessary, and installation at one (1) outlet to each public school and public library, not including “home schools,” located in the Franchise Area within 125 feet of the Grantee’s distribution cable. For purposes of this subsection, “Basic” shall mean the most basic level of service offered by the Grantee.

11.3. Service to Governmental and Institutional Facilities. As a voluntary initiative for the term of this Agreement, the Grantee will provide at no cost one (1) “Basic” service, or its equivalent in a digital tier if necessary, and installation at one (1) outlet to each municipal building, including city police buildings and the fire station located in the Franchise Area within 125 feet of the Grantee’s distribution cable. “Municipal buildings” are those buildings owned or leased by the Franchising Authority for government administrative purposes, and shall not include buildings owned by Franchising Authority but leased to third parties or buildings such as storage facilities at which government employees are not regularly stationed and buildings used to house jail populations. For purposes of this subsection, “Basic” shall mean the most basic level of service offered by the Grantee.

SECTION 12 – Enforcement or Termination of Franchise

12.1. Notice of Violation or Default. In the event the Franchising Authority believes that the Grantee has not complied with the material terms of the Franchise, it shall notify the Grantee in writing with specific details regarding the exact nature of the alleged noncompliance or default.

12.2. Grantee’s Right to Cure or Respond. The Grantee shall have forty-five (45) days from the receipt of the Franchising Authority’s written notice: (A) to respond to the Franchising Authority, contesting the assertion of noncompliance or default; or (B) to cure such default; or (C) in the event that, by nature of the default, such default cannot be cured within the forty-five (45) day period, initiate reasonable steps, to the Franchising Authority’s satisfaction, to remedy such default and notify the Franchising Authority of the steps being taken and the projected date that they will be completed.

12.3 Enforcement. Subject to applicable federal and state law, in the event the Franchising Authority, determines that the Grantee is in default of any provision of the Franchise, the Franchising Authority, after providing the notice and hearing process described below, may:

12.3.1. Revoke this Franchise for violation of any material Franchise provision; or

12.3.2 Seek specific performance of any provision that reasonably lends itself to such remedy as an alternative to damages, or seek other equitable relief; or

12.3.3. Establish and impose a lesser sanction, which may include imposing liquidated damages of not more than five hundred dollars ($500.00) for each offense.

12.4 In the case of a default of a material provision of the Franchise as described in this Section 12.3, the Franchising Authority may declare the Franchise Agreement to be revoked only after providing the following:

12.4.1 Notice. The Franchising Authority shall give written notice to the Grantee of its intent to revoke the Franchise on the basis of one or more instances of noncompliance with a material provision of the Franchise. The notice shall set forth with specificity the exact nature of the noncompliance. The Grantee shall have ninety (90) days from the receipt of such notice to object in writing and to state its reasons for such objection. In the event the Franchising Authority has not received a response from the Grantee or if the Grantee’s response does not propose a satisfactory remedy, the Franchising Authority may then seek to revoke the Franchise at a public hearing. The Franchising Authority shall cause to be served upon the Grantee, at least ten (10) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to request termination of the Franchise.

12.4.2 Hearing. At the designated hearing, the Franchising Authority shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the Franchise shall be revoked or some other action taken. The public hearing shall be on the record and written minutes of the Franchising Authority shall be made available to the Grantee within ten (10) business days. The Grantee may, at its cost, make arrangements for a written transcript of the hearing. The decision of the Franchising Authority shall be in writing and shall be delivered to the Grantee by certified mail. The Grantee may appeal such determination to a court of competent jurisdiction. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the Franchising Authority.

12.5. Technical Violation. The Franchising Authority agrees that it is not its intention to subject the Grantee to penalties, fines, forfeitures or revocation of the Franchise for so-called “technical” breach(es) or violation(s) of the Franchise, which shall include, but not be limited, to the following:

12.5.1. in instances or for matters where a violation or a breach of the Franchise by the Grantee was good faith error that resulted in no or minimal negative impact on the Customers within the Franchise Area; or

12.5.2. where there existed circumstances reasonably beyond the control of the Grantee and which precipitated a violation by the Grantee of the Franchise, or which were deemed to have prevented the Grantee from complying with a term or condition of the Franchise.

12.6 Remedies Not Exclusive. All remedies and penalties under this Franchise, including revocation, are cumulative and the recovery or enforcement of one is not a bar to the recovery or enforcement of another. The Franchising Authority reserves the right to avail itself of any and all remedies available to it under law or equity. Failure to enforce shall not be deemed a waiver of any such right.

SECTION 13 – Miscellaneous Provisions

13.1. Force Majeure. The Grantee 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 (including cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, failure of utility service necessary to operate the Cable System, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Grantee’s ability to anticipate or control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Grantee’s cable or equipment is attached, as well as unavailability of materials or qualified labor to perform the work necessary.

13.2. Notice. All notices shall be in writing and shall be sufficiently given and served upon the other party by hand delivery, first class mail, registered or certified, return receipt requested, postage prepaid, or by reputable overnight courier service and addressed as follows:

To the Franchising Authority:

City of Junction City

P.O. Box 250 / 680 Greenwood St.

Junction City, OR 97448

Attention: City Administrator/Recorder

To the Grantee:

Comcast Cable

9605 SW Nimbus Avenue

Beaverton, OR 97008

Attn: Government Affairs

13.3. Entire Agreement. This Franchise Agreement embodies the entire understanding and agreement of the Franchising Authority and the Grantee with respect to the subject matter hereof and supersedes all prior understandings, agreements and communications, whether written or oral. All ordinances or parts of ordinances that are in conflict with or otherwise impose obligations different from the provisions of this Franchise Agreement are superseded by this Franchise Agreement.

13.4. Severability. If any section, subsection, sentence, clause, phrase, or other portion of this Franchise Agreement is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect.

13.5. Governing Law. This Franchise Agreement shall be deemed to be executed in the State of Oregon, and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with, the laws of the State of Oregon, as applicable to contracts entered into and performed entirely within the State.

13.6. Modification. No provision of this Franchise Agreement shall be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the Franchising Authority and the Grantee.

13.7. No Third-Party Beneficiaries. Nothing in this Franchise Agreement is or was intended to confer third-party beneficiary status on any member of the public to enforce the terms of this Franchise Agreement.

13.8. No Waiver of Rights. Nothing in this Franchise Agreement shall be construed as a waiver of any rights, substantive or procedural, the Grantee and the Franchising Authority may have under federal or state law unless such waiver is expressly stated herein.

13.9 Binding Agreement. This Franchise and the written acceptance by Grantee constitute a binding contract between the Grantee and the Franchising Authority. By accepting the Franchise, Grantee acknowledges and accepts the City’s legal right to issue and enforce the Franchise and agrees to comply with the provisions of this Franchise, consistent with applicable law.

IN WITNESS WHEREOF, this Franchise Agreement has been executed by the duly authorized representatives of the parties as set forth below, as of the date set forth below:

 

Attest:		The City of Junction City:
________________		By: _________________
		Name:
Date: _________, 2013		Title:
		Comcast of Oregon II, Inc.
		By:___________________________
		Name:
Date: ___________, 2013		Title: