ORDINANCE NO. 2020-02
AN ORDINANCE OF THE CITY OF CASTLE ROCK, WASHINGTON GRANTING COMCAST OF FLORIDA/MICHIGAN/NEWMEXICO/PENNSYLVANIA/WASHINGTON, LLC, A CABLE TELEVISION FRANCHISE AGREEMENT
WHEREAS, Comcast of Florida/Michigan/New Mexico/Pennsylvania/Washington, LLC (“Comcast”) has requested that the City of Castle Rock, Washington (“City”) renew its right to install, operate and maintain cable television facilities within the public right of way of the City; and
WHEREAS, the City Council finds it desirable for the welfare of the City and its residents that such a non-exclusive franchise be granted to Comcast; and
WHEREAS, the City Council has the authority under state and local laws to grant franchises for the use of its street rights of way; and
WHEREAS, the City is willing to grant the rights requested by Comcast subject to the terms and conditions as set forth in Exhibit A entitled “Comcast cable Television Agreement Between the City of Castle Rock and Comcast of Florida/Michigan/New Mexico/Pennsylvania/Washington, LLC” between the City and Comcast, incorporated by reference as fully set forth herein; and
WHEREAS, the City has reviewed Comcast’s performance under the prior franchise and the quality of the service during the prior franchise term, has identified the future cable-related needs and interests of the City and its citizens, has considered the financial, technical and legal qualifications of Comcast, and has determined that Comcast’s plans for constructing, operating and maintaining its cable system are adequate; and
WHEREAS, the public has had adequate notice and opportunity to comment on Comcast’s proposal to provide cable television services within the City;
NOW THEREFORE, the City Council of the City of Castle Rock, does ordain as follows:
Section 1. The Mayor is authorized to execute the agreement attached here to As Exhibit A entitled “Comcast cable Television Agreement Between the City of Castle Rock and Comcast of Florida/Michigan/New Mexico/Pennsylvania/Washington, LLC”, between the City of Castle Rock and Comcast, the terms of which are incorporated by reference as if fully set forth herein.
Section 2. The ordinance shall be in force and effect five days from and after its passage by Castle Rock City Council and publication in the summary form attached to the original of this ordinance and by this reference approved by the City Council.
Passed by majority vote of the Castle Rock City Council in open meeting this 24th day of February 2020.
EXHIBIT A
Comcast Cable Television Franchise Agreement
Between
The City of Castle Rock
And
Comcast of Florida/Michigan/New Mexico/Pennsylvania/Washington, LLC
CABLE TELEVISION FRANCHISE AGREEMENT
This Cable Television Franchise (“Franchise”) is entered into in Castle Rock, Washington, this 24th day of February, 2019, by and between the City of Castle Rock, Washington, a municipal corporation (“City”) and Comcast of Florida/Michigan/New Mexico/Pennsylvania/Washington, LLC (“Grantee”). The City and Grantee are sometimes referred to herein collectively as “parties.”
WHEREAS, the City has reviewed Grantee’s performance under the prior franchise and the quality of the service during the prior franchise term, has identified the future cable-related needs and interests of the City and its citizens, has considered the financial, technical and legal qualifications of Grantee, and has determined that Grantee’s plans for constructing, operating and maintaining its Cable System are adequate, in a full proceeding affording due process to all concerned; and
WHEREAS, the public has had adequate notice and opportunity to comment on Grantee’s proposal to provide cable television service within the City; and
WHEREAS, the City has a legitimate and necessary regulatory role in ensuring the availability of cable service in the franchise area; and
WHEREAS, the Grantee’s Cable System should offer a broad range of programming services; and
WHEREAS, flexibility to respond to changes in technology and subscriber interests within the cable service market should be an essential characteristic of this Franchise; and
WHEREAS, the City is authorized by applicable law to grant one or more nonexclusive franchises to construct, operate and maintain a cable system within the boundaries of the City.
NOW, THEREFORE, in consideration of mutual promises made herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City and Grantee do hereby agree as follows:
SECTION 1. DEFINITIONS
For the purposes of this Ordinance, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and the use of any gender shall be applicable to all genders whenever the sense requires. The words “shall” and “will” are mandatory and the word “may” is permissive. Where a term in the Franchise is not defined in this section and there is a definition for the term in the Cable Act, the Cable Act definition shall apply. Other terms in the Franchise which are not defined in this section shall be given their common and ordinary meaning.
1.2 “Affiliate” means any Person who owns or controls, is owned or controlled by, or is under common ownership or control with, Grantee and its successor corporations. Affiliate also means any person with whom Grantee contracts to provide Cable Services on the Cable System.
1.3 “Applicable Law” means any federal, State or local statute, law, regulation, or other final legal authority governing any of the matters addressed in this Franchise.
1.4 “Bad Debt” means amounts lawfully owed by a subscriber and accrued revenues on the books of Grantees, but not collected after reasonable efforts by Grantee.
1.5 “Basic or Basic Service” means a service tier which includes the retransmission of local television broadcast signals, or as such service tier may be further defined by federal law.
1.6 “Cable Act” means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, as amended and any future federal cable television legislation.
1.7 “Cable Operator” means any Person or group of Persons, including Grantee, who provide Cable Service over a Cable System and directly owns a significant interest in such Cable System, or who otherwise control or are responsible for, through any arrangement, the management and operation of such a Cable System.
1.8 “Cable Service” means the one-way transmission to Subscribers of video programming or other programming service and Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming services.
1.9 “Cable System” means the meaning specified in the definition of “Cable System” in the Cable Act. As used in this Franchise, unless otherwise specified, the term shall refer to the Cable System constructed and operated by the Grantee in the City under this Franchise.
1.10 “Channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the FCC by regulation).
1.11 “City” means the City of Castle Rock of the State of Washington and all the territory within its present and future boundaries.
1.12 “City Code” means the Municipal Code of the City of Castle Rock, Washington, as may be amended from time to time.
1.13 “Day” unless otherwise specified shall mean a calendar day.
1.14 “Effective Date” means this Franchise granted by this Ordinance shall be effective 15 days from date of final passage by City Council; provided, however, that Grantee shall have 60 days to accept the Franchise and comply with all conditions for such acceptance. This Franchise shall be voidable at the City’s discretion if Grantee fails to accept within 60 days.
1.15 “Expanded Basic Service” means the next tier of service above the Basic Service tier excluding premium or pay-per-view services.
1.16 “FCC” means the Federal Communications Commission.
1.17 “Franchise” “Franchise Agreement” or “Agreement” means the City of Castle Rock Ordinance No 2020-02, and this Franchise Agreement and the conditions as set forth herein.
1.18 “Franchise Fee” means the fee the City may assess in accordance with Section 622 (g) of the Cable Act (47 U.S.C. 542(g)).
1.19 “Gross Revenue” means, and shall be construed broadly to include, all amounts in whatever form and from all sources derived directly or indirectly by Grantee and/or an Affiliate from the operation of Grantee’s Cable System to provide Cable Services within the Franchise Area. Gross Revenues include, by way of illustration and not limitation:
• Fees for Cable Services, regardless of whether such Cable Services are provided to residential or commercial Subscribers, including revenues derived from the provision of all Cable Services (including but not limited to pay or premium Cable Services, digital Cable Services, pay-per-view, pay-per-event, audio channels and video-on-demand Cable Services);
• Installation, disconnection, reconnection, downgrade, upgrade, maintenance, repair, or similar charges associated with Subscriber Cable Service;
• fees paid to Grantee for Channels designated for commercial/leased access use; which shall be allocated on a pro rata basis using total Cable Service Subscribers within the Franchise Area;
• Converter, remote control, and other Cable Service equipment rentals, leases, or sales;
• Payments for pre-paid Cable Services and/or equipment;
• Advertising Revenues as defined herein;
• Fees including, but not limited to: (1) late fees, convenience fees and administrative fees which shall be allocated on a pro rata basis using Cable Services revenue as a percentage of total Grantee revenues within the Franchise Area; (2) Franchise fees; and (3) the FCC user fee.
• Revenues from program guides; and
• Commissions from home shopping channels and other Cable Service revenue sharing arrangements which shall be allocated on a pro rata basis using total Cable Service Subscribers within the Franchise Area.
• “Gross Revenues” shall not be net of: (1) any operating expense; (2) any accrual, including without limitation, any accrual for commissions to Affiliates; or (3) any other expenditure, regardless of whether such expense, accrual, or expenditure reflects a cash payment. “Gross Revenues”, however, shall not be double counted. Revenues of both Grantee and an Affiliate that represent a transfer of funds between the Grantee and the Affiliate, and that would otherwise constitute Gross Revenues of both the Grantee and the Affiliate, shall be counted only once for purposes of determining Gross Revenues. Similarly, operating expenses of the Grantee which are payable from Grantee’s revenue to an Affiliate and which may otherwise constitute revenue of the Affiliate, shall not constitute additional Gross Revenues for the purpose of this Franchise. “Gross Revenues” shall include amounts earned by Affiliates only to the extent that Grantee could, in concept, have earned such types of revenue in connection with the operation of Grantee’s Cable System to provide Cable Services and recorded such types of revenue in its books and Records directly, but for the existence of Affiliates. “Gross Revenues” shall not include sales taxes imposed by law on Subscribers that the Grantee is obligated to collect. With the exception of recovered bad debt, “Gross Revenues” shall not include bad debt.
(A) “Advertising Revenues” shall mean amounts derived from sales of advertising that are made available to Grantee’s Cable System Subscribers within the Franchise Area and shall be allocated on a pro rata basis using total Cable Service Subscribers reached by the advertising. Whenever Grantee acts as the principal in advertising arrangements involving representation firms and/or advertising Interconnects and/or other multichannel video providers, Advertising Revenues subject to Franchise fees shall include the total amount from advertising that is sold, and not be reduced by any operating expenses (e.g., “revenue offsets” and “contra expenses” and “administrative expenses” or similar expenses), or by fees, commissions, or other amounts paid to or retained by National Cable Communications or Comcast Spotlight or similarly affiliated advertising representations firms to Grantee or their successors involved with sales of advertising on the Cable System within the Franchise Area.
(B) “Gross Revenues” shall not include:
• Actual Cable Services bad debt write-offs, except any portion which is subsequently collected which shall be allocated on a pro rata basis using Cable Services revenue as a percentage of total Grantee revenues within the Franchise Area;
• Any taxes and/or fees on services furnished by Grantee imposed on Subscribers by any municipality, state or other governmental unit, provided that the Franchise fee, the FCC user fee shall not be regarded as such a tax or fee;
• Launch fees and marketing co-op fees; and,
• Revenues associated with the provision of managed network services provided under separate business contract.
• Unaffiliated third-party advertising sales agency fees or commissions which are reflected as a deduction from revenues, except when Grantee acts as a principal as specified in paragraph (A) immediately above.
(C) To the extent revenues are derived by Grantee for the provision of a discounted bundle of services which includes Cable Services and non-Cable Services, Grantee shall calculate revenues to be included in Gross Revenues using a methodology that allocates revenue on a pro rata basis when comparing the bundled service price and its components to the sum of the published rate card prices for such components. Late fees and other multi-service revenues shall be treated the same as bundled services – thus allocated on a pro-rata basis. Except as required by specific federal, state or local law, it is expressly understood that equipment may be subject to inclusion in the bundled price at full rate card value. This calculation shall be applied to every bundled service package containing Cable Service from which Grantee derives revenues in the Franchise Area. The Grantor reserves its right to review and to challenge Grantee’s calculations.
Example: Prior to any bundle-related price reduction, if Cable Service is valued at 50% of the total of the services to be offered in a bundle, then Cable Service is to be valued and reported as being no less than fifty percent (50%) of the price of the bundled service total.
(D) Grantee reserves the right to change the allocation methodologies set forth in paragraph (C) above to meet standards mandated by the Financial Accounting Standards Board (“FASB”), Emerging Issues Task Force (“EITF”) and/or the U.S. Securities and Exchange Commission (“SEC”). Grantor acknowledges and agrees that Grantee shall calculate Gross Revenues in a manner consistent with GAAP where applicable; however, the Grantor reserves its right to challenge Grantee’s calculation of Gross Revenues, including Grantee’s interpretation of GAAP and Grantee’s interpretation of FASB, EITF and SEC directives. Grantee agrees to explain and document the source of any change it deems required by FASB, EITF and SEC concurrently with any Franchise-required document at the time of submittal, identifying each revised Section or line item.
(E) Grantor agrees and acknowledges that Grantee shall maintain its books and Records in accordance with GAAP.
1.20 “Headend” means the Grantee’s facility for Signal reception and dissemination on the Cable System, including cables, antennae, wires, satellite dishes, monitors, switches, modulators, processors, equipment for the interconnection of the Cable System with adjacent Cable Systems or other separate communications network, and all other related equipment and facilities.
1.21 “Institutional Facilities” means City Hall, public libraries, police stations (not including incarceration facilities), fire stations, and City owned buildings; provided however that the term shall not include buildings or sites owned by City that are not used for administrative purposes or by the public, or those buildings owned by the City but leased to third parties at which government administrative employees are not regularly stationed.
1.22 “Normal Business Office Hours” means those hours during which most similar businesses in the community are open to serve customers. In all cases, “normal business hours” must include some evening hours at least one night per week and/or some weekend hours.
1.23 “Normal Operating Conditions” means those Cable Service conditions which are within the control of Grantee. Those conditions which are not within the control of Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of Grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the Cable System.
1.24 “Person” means any individual, sole proprietorship, partnership, association, corporation, or any other form of organization authorized to do business in the State of Washington and includes any natural person.
1.25 “Premium Service” means a Cable Service (such as movie channels or pay-per-view programs) offered to Subscribers on a per-channel, per-program, or per-event basis.
1.26 “Public Rights of Way” include, but are not limited to, streets, bridges, sidewalks, trails, paths, public utility easements, and all other public ways, including the subsurface under and air space over these areas, excluding parks and parkways, but only to the extent of the Grantor’s right, title, interest, or authority to grant a Franchise to occupy and use such streets and easements for Cable System facilities. “Public Rights of Way” shall also include any easement granted to or owned by the Grantor and acquired, established, dedicated, or devoted for public utility purposes. Nothing in this Agreement shall preclude Grantee’s use of private easements as set forth in 47 U.S.C. 541(a)(2).
1.27 “State” means The State of Washington.
1.28 “Subscriber” means any Person who is lawfully receiving, for any purpose or reason, any Cable Service provided by Grantee by means of, or in connection with, the Cable System.
1.29 “Video Services” means programming provided by, or generally considered comparable to programming provided by a cable operator as the term “cable operator” is defined in the Cable Act.
SECTION 2. FRANCHISE
2.1 Grant of Franchise
(A) The City hereby grants to the Grantee a non-exclusive and revocable. Franchise to occupy or use City Public Rights of Way to construct, operate, and maintain a Cable System within the Franchise Area, subject to (A) the provisions of this Franchise to provide Cable Service within the City; and (B) all applicable provisions of the City Code and other Applicable Law. Said Franchise shall constitute both a right and an obligation to provide Cable Services as required by the provisions of this Franchise. Nothing in this Franchise shall be construed to prohibit Grantee from providing services other than Cable Services to the extent not prohibited by Applicable Law. The City hereby reserves all of its rights to regulate such other services to the extent consistent with Applicable Law and no provision herein shall be construed to limit or give up any right to regulate.
2.2 Police Powers & Relations to Other Provisions of Law
Notwithstanding any other provision of this Franchise, Grantee’s rights hereunder are subject to the lawful police powers of Grantor to adopt and enforce ordinances of general applicability to protect or advance public safety, health, or welfare of the general public. Grantee agrees to comply with all applicable laws, regulations and ordinances enacted by Grantor or any other legally-constituted governmental unit having lawful jurisdiction over the subject matter hereof; however, nothing herein shall limit Grantee’s right to challenge said law, regulation and/or ordinance in the proper forum. In cases of conflict between this Franchise and any ordinance or other regulation enacted by Grantor after this agreement is in effect, the Franchise shall prevail.
2.3 Franchise Term
The term of the Franchise shall be ten (10) years from the Effective Date, unless extended by mutual written consent or terminated sooner in accordance with this Franchise.
2.4 Franchise Area
The Franchise Area shall be that area within the present or future corporate limits of the City. Cable Service shall be provided to all Persons subject to the service and installation policy outlined in this Franchise Section 10.1.
2.5 Franchise Nonexclusive
The Franchise granted herein shall be nonexclusive and is subject to all prior rights, interests, agreements, permits, easements or licenses granted by City to any Person to use any Public Rights of Way, easement, or property for any purpose whatsoever, including the right of Grantor to use for any purpose it deems fit, including the same or similar purposes allowed by Grantee hereunder. Grantor may at any time grant authorization to use the public rights of way for any purpose not incompatible with Grantee’s authority under this Franchise and for such additional Franchises for Cable Systems as City deems appropriate, upon such terms and conditions as City deems appropriate.
2.6 Franchise Acceptance
The Grantee, within sixty (60) days after the tender by the City to Grantee of the Franchise Agreement, adopted by the City, shall file with the City Clerk of the City a written acceptance executed by Grantee, in the form attached hereto as Exhibit “A” Franchise Acceptance. In the event Grantee fails to file the acceptance as required herein this franchise shall be voidable at the discretion of the City.
2.7 Competitive Equity
(A) The Grantee acknowledges and agrees that the City specifically reserves the right to grant, at any time, such additional franchises or similar lawful authorization for a Cable System or other wireline systems providing video services, including multi-channel video services delivered by the Internet, as it deems appropriate provided, however, such additional grants shall not operate to materially modify, revoke, or terminate any rights previously granted to Grantee. Provided, however, that City agrees that, within ninety (90) days of the Grantee’s request, the City shall amend this Franchise to include any material terms or conditions that it makes available to the new entrant, or provide relief from existing material terms or conditions, so as to ensure 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, system build-out requirements and line extension requirements, uniform service 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 entry, so long as the regulatory and financial burdens on each entity are materially equivalent. The parties agree that, notwithstanding any provision of this subsection, the City shall not be obligated to comply with the provisions of this subsection to the extent doing so would cause the City to violate applicable laws or FCC rules In the event that a competitive franchise is granted by City as described in Section 2.7(A) above, which contains material terms and conditions that are more favorable or less burdensome than the terms of his Franchise, and notice thereof is duly provided to City, the Grantee shall submit to City in writing (1) the basis for Grantee’s belief that certain provisions of the Franchise place Grantee at a competitive disadvantage, (2) the provisions to be amended; and (3) specific language modifying any such Franchise provisions. City and Grantee shall negotiate in good faith such amendments to the Franchise within ninety (90) days, unless otherwise agreed to by the parties. In the event the parties are not able to reach agreement in information negotiations, Grantee may exercise its rights under subsection (C) below.
(B) In the alternative to Franchise modification negotiations as provided for in Section 2.7(B), or if the City and Grantee fail to reach agreement in such negotiations, Grantee may, at its option, elect to replace this Franchise by opting into the franchise or other similar lawful authorization that the City grants to another provider of Cable Services, so as to insure that the regulatory and financial burdens on each entity are equivalent. If Grantee so elects, the City shall immediately commence proceedings to replace this Franchise with the franchise issued to the other Cable Services provider.
2.8 Mid-Term Franchise Review
(A) Grantor may conduct a Franchise review once during the term of this Agreement or any extensions of this Agreement. Grantor shall establish a procedure for ensuring an orderly review and full discussion of any matters for review, to include, but not be limited to (1) Grantee’s performance; (2) compliance with federal and state laws and regulations; and (3) new developments in cable regulation and technology.
(B) The purpose of the review shall be to insure, with the benefit of full opportunity for public comment that the Franchise continues to effectively serve the public, in light of new developments in cable law and regulation, cable technology, cable company performance, local regulatory environment, community needs and interests.
(C) Such review shall be open to the public and shall include at least one public hearing on all matters discussed during the review; which hearing shall be noticed at least one week in advance in a newspaper of general circulation in the Franchise Area.
(D) If the Grantor has reason to believe that a portion or all of the Cable System does not meet the applicable FCC technical standards, the Grantor, at its expense, reserves the right to appoint a qualified independent engineer to evaluate and verify the technical performance of the Cable System.
(E) During the evaluation under this Section, Grantee shall fully cooperate with Grantor and shall provide such information and documents as necessary and reasonable to the Grantor’s review.
2.9 Transfer or Change of Control
This franchise shall be binding upon, and inure to the benefit of, the successors, legal representatives, and assigns of the Franchisee.
(A) Neither the Grantee nor any other Person may transfer the Franchise without the prior consent, by ordinance of the City; which consent shall not be unreasonably withheld or delayed. No transfer of control of the Grantee, defined as an acquisition of 51% or greater ownership interest in Grantee, shall take place without the prior written consent, by ordinance of the City, which consent shall not be unreasonably withheld or delayed. No consent shall be required, however, for (1) 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 (2) 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 city shall, in accordance with the 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 City has not taken final action on the Franchisee’s request for consent within one hundred twenty (120) days after receiving such request, consent shall be deemed granted.
(B) The City’s approval shall be based upon the financial responsibility of the party unto whom the franchise is being proposed for sale, assignment, or transfer. The proposed assignee must show it has the financial capability, technical ability, and legal qualifications sufficient to comply with the terms of the franchise as determined by the City and must agree to comply with all provisions of the franchise.
(C) The consent or approval of the City to any transfer of the franchise shall not constitute a waiver of release of rights of the City in and to the Public Rights of Way, and any transfer shall by its terms be expressly subordinate to the terms and conditions of this franchise.
(D) In no event shall a transfer of ownership or control of the franchise be approved without successor in interest becoming signatory to the franchise agreement.
2.10 Renewal
This Franchise shall be renewed in accordance with 47 U.S.C. 546.
(A) The City and Grantee agree that any proceedings undertaken by the City that relate to the renewal of the Franchise shall be governed by and comply with provisions of Section 626 of the Cable Act, unless the procedures or substantive protections set forth therein shall be deemed to be preempted and/or superseded by any subsequent provision of federal or state law.
(B) In addition to the procedures set forth in said Section 626(a), the City agrees to notify Grantee of the completion of its assessments regarding the identification of future cable-related community needs and interests, as well as the past performance of Grantee under the then current Franchise term. Notwithstanding anything to the contrary set forth herein, Grantee and City agree that at any time during the term of the then current Franchise, while affording the public adequate notice and opportunity to comment, the City and Grantee may agree to undertake and finalize negotiations regarding renewal of the then current Franchise and the City may grant a renewal thereof. Grantee and the City consider the terms set forth in this subsection to be consistent with the express provisions of Section 626 of the Cable Act.
2.11 Conditions of Sale
The City may acquire the Cable System as provided 47 U.S.C. 547.
2.12 Right to Require Removal of Property
At the expiration of the term for which the Franchise is granted provided no renewal is granted, or upon its forfeiture or revocation as provided for herein, the City shall have the right to require Grantee to remove at Grantee’s own expense all or any part of the Cable System from all Public Rights of Way within the Franchise Area. If Grantee fails to do so, the City may perform the work and collect the cost thereof from Grantee. The actual cost thereof, including direct and indirect administrative costs, shall be a lien upon all plant and property of Grantee effective upon filing of the lien with the Cowlitz County Auditor.
2.13 Continuity of Service Mandatory
Grantee shall make its best effort to ensure that all Subscribers receive continuous uninterrupted Cable Service so long as their financial obligations to Grantee are honored, in the event of purchase, lease-purchase, acquisition, sale, lease, or other transfer to any other Person, including any other operator of a cable communications franchise. Grantee shall cooperate fully to operate the Cable System in accordance with the terms and conditions of this Franchise Agreement through the transition, to maintain continuity of service to all Subscribers.
SECTION 3. CONSTRUCTION AND OPERATION IN PUBLIC RIGHTS-OF-WAY
3.1 Use of Public Rights of Way
Grantee may, subject to the terms of this Franchise, erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the Public Rights of Way within the City such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of a Cable System within the City. Without limiting the foregoing, Grantee expressly agrees that it will construct, operate and maintain its Cable System in compliance with, and subject to Applicable Law.
3.2 Non-Interference
Grantee shall exert its best efforts to construct and maintain a Cable System so as not to interfere with other use of the Public Rights of Way and the rights and reasonable convenience of property owners who own property that adjoin any such Public Rights of Way. Grantee shall, where possible in the case of above ground lines, make use of existing poles and other facilities available to Grantee. When residents receiving underground service or who will be receiving underground service will be affected by proposed construction or alteration, Grantee shall provide at least seventy-two (72) hours advance notice of the same to such affected residents.
3.3 Erection of Poles
If additional poles in an existing aerial utility system route are required, Grantee shall negotiate with the utility company or provider for the installation of the needed poles. Grantee shall not erect, for any reason, any pole on or along any Public Right of Way in an existing aerial utility system unless approved by the City, which approval shall not be unreasonably withheld. The Grantee shall negotiate the lease of pole space and facilities from the existing pole owners for all aerial construction and shall comply with all Applicable Law. In the event the utility company providing the poles moves its facilities underground, Grantee agrees to underground its facilities at that same time.
3.4 Undergrounding
(A) Grantee shall place underground all of its transmission lines which are located or are to be located above the Public Rights of Way of the City in the following cases:
1) All other existing utilities are to be or have been placed underground;
2) Undergrounding of utilities are required by statute, resolution, policy or other Applicable Law;
3) Overhead utility lines are moved and placed underground (Grantee shall bear its proportional share of the cost of such movement of its facilities);
4) Grantee is unable to get pole clearance;
5) Underground easements are obtained from developers of new residential areas; or
6) Utilities are overhead but residents request underground service drops (Underground service drops provided at resident’s expense, and undergrounding is technically feasible.
(B) If an ordinance is passed creating a local improvement district which involves placing underground certain utilities including Grantee’s cable plant which is then located overhead, Grantee shall participate in such underground project and shall remove poles, cables and overhead wires within such district if requested to do so and place facilities underground. If such undergrounding of Grantee facilities is part of such a project, the costs thereof shall be included in such local improvement district.
(C) Grantee shall use conduit or its functional equivalent to the greatest extent possible for undergrounding, except for drops from pedestals to Subscribers’ homes and for cable on other private property where the owner requests that conduit not be used. All conduits shall be a minimum of 2’ bury and all direct bury cable within the ROW will be a minimum of 3’ bury.
(D) Grantee shall use, in conjunction with other utility companies or providers, common trenches for underground construction wherever available.
3.5 Maintenance, Repair, and Restoration
(A) City Codes Apply. Subject to Section 2.2 herein, in connection with the construction, operation or repair of the Cable System, Grantee shall, in all cases, comply with the City Code and all Applicable law.
(B) Grantee Responsible. All construction, maintenance, or repair of any and all of Grantee’s facilities within City Public Rights of Way shall, regardless of who performs the construction, be and remain Grantee’s responsibility.
(C) Permits. Grantee shall obtain, at Grantee’s own cost and expense, all necessary permits, licenses, or approvals for construction, operation, maintenance, or repair of the Cable System facilities prior to the commencement thereof. All work shall be performed in a safe, thorough and reliable manner using materials of good and durable quality.
(D) Schedule and Inspection. Prior to beginning any construction, Grantee shall provide City with a construction schedule for work in the Public Right of Way. City shall have the right to inspect all construction or installation work performed within the Franchise Area and to make such tests as it shall find necessary to ensure compliance with construction or installation standards of this Franchise or Applicable Law.
(E) Restoration to Prior Condition. In the event Grantee’s work causes any disturbance or damage of any street, pavement, sidewalk, driveway or other public or private property, the Grantee shall, at its own cost and expense and in a manner approved by the City, replace and restore all paving, sidewalk, driveway, landscaping or property, in as good condition as before said work was commenced and in accordance with standards for such work set by the City and the City Code.
(F) New Pavement. Grantee is prohibited from disturbing the paved surface of newly constructed or substantially improved streets for a period of five (5) years after completion of construction. In the event of extraordinary circumstances, the City may authorize such work subject to additional conditions for street repair and/or the negotiation of a non-discriminatory damage fee.
(G) Disputes. In any dispute over the adequacy of restoration or maintenance relative to this section, final determination shall be the prerogative of the City of Castle Rock Department of Public Works subject to appeal by Grantee to Hearings Examiner consistent with Section 7.5 herein.
3.6 Tree Trimming
Grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and Public Rights of Way so as to prevent the branches of such trees from coming in contact with the wires and cables of Grantee. Trimming shall be done only in accordance with Applicable Law and under the supervision of a certified Arborist.
3.7 Removal and Relocation
(A) Reservation of Rights. Nothing in this Franchise Agreement shall be construed to prevent any public work of the City, including without limitation grading, paving, repairing or altering any street or constructing, repairing or removing any water or sewer line. In addition, the City may vacate or discontinue use of any Public Right of Way. If any property of Grantee shall interfere with the construction or repair of any street or public improvement, or the vacation or abandonment of any street, then upon reasonable notice from City, no more than 90 calendar days, all such property shall be removed, replaced or relocated in a timely manner as shall be directed by City; such work shall be at the expense of Grantee.
(B) Relocation of Facilities. In the event that at any time during the period of the Franchise, the city, county PUD, or state shall lawfully elect to alter or change the grade of any street, alley, or other Public Rights of Way, the Grantee, upon reasonable notice by the proper governmental entity, shall remove or relocate as necessary its poles, wires, cables, underground conduits, manholes and other fixtures within the public right-of-way at its own expense. Relocation of said facilities shall be completed within ninety (90) days’ notice of the required move – or within an agreed upon timeline if the relocation is extended out further than the original ninety (90) days’ notice.
(C) Failure by Grantee to Remove or Relocate. If Grantee fails, neglects or refuses to remove or relocate its facilities as directed by the City; or in emergencies or where public health and safety or property is endangered, the City may do such work or cause it to be done, and the cost thereof to the City shall be paid by Grantee.
(D) Procedure for Removal of Cable. Grantee shall not remove any underground cable or conduit which requires trenching or other opening of the Public Rights of Way along the extension of cable to be removed, except as hereinafter provided. Grantee may remove any underground cable from the Public Right of Way which has been installed in such a manner that it can be removed without trenching or other opening of the Public Right of Way along the extension of cable to be removed. Subject to the City Code and other Applicable Law, Grantee shall remove, at its sole cost and expense, any underground cable or conduit by trenching or opening of the Public Right of Way along the extension thereof or otherwise which is ordered to be removed by the City based upon a determination, in the sole discretion of the City, that removal is required in order to eliminate or prevent a hazardous condition. Underground cable and conduit in the Public Right of Way which is not removed shall be deemed abandoned and title thereto shall be vested in the City.
3.8 Movement of Facilities
(A) Grantee shall, upon request by any person holding a building moving permit, franchise or other approval issued by the City, temporarily remove, raise or lower its wire to permit the movement of buildings. The expense of such removal, raising or lowering shall be paid by the person requesting same, and Grantee shall be authorized to require such payment in advance. The City shall require all building movers to provide not less than fifteen (15) days’ notice to the cable company to arrange for such temporary wire changes.
(B) If any removal, replacement, modification, or disconnection is requested by another franchise holder to accommodate the construction, operation or repair of the facilities or equipment of such other franchise holder, Grantee shall, after at least thirty (30) days’ written notice, take action to effect the necessary changes requested by the responsible entity. Grantee and the other franchise holder shall determine how costs associated with the removal or relocation shall be allocated.
3.9 Major Street Improvements
Grantee is required to place conduit into the utility easements at the time new streets are being constructed or there are major improvements being made to existing streets, provided Grantee is provided reasonable notice of the construction or improvements.
3.10 As-Builts
Grantee shall maintain “as built” drawings of the Cable System and make them available to the City for inspection upon request. The “as built” drawings shall be updated as changes occur to the System. The Grantee shall provide to City, upon request, a copy of drawings showing the location of the Grantee’s facilities in the streets and Public Rights of Way.
3.11 Emergencies
In the event of a situation or circumstance which creates or is contributing to an imminent danger to health, safety, or property, the City may remove ore relocate Grantee’s Cable System without prior notice.
3.12 Hazardous Substances
Grantee shall comply with all applicable local, state, and federal laws, statutes, regulations, and orders concerning hazardous substances relating to Grantee’s Cable System in the Streets.
Grantee shall maintain and inspect its Cable System located in the Streets. Upon reasonable notice to Grantee, Grantor may inspect Grantee’s facilities in the Streets to determine if any release of hazardous substances has occurred, or may occur, from or related to Grantee’s Cable System. In removing or modifying Grantee’s facilities as provided in the Agreement. Grantee shall also remove all residue of hazardous substances related thereto.
SECTION 4. CABLE SYSTEM CAPACITY AND COMPLIMENTARY SERVICE
4.1 Cable System Capacity
During the term of this Franchise the Grantee’s Cable System shall be capable of providing a minimum of 120 channels of video programming to its customers in the Franchise Area, including Basic Cable.
4.2 System Upgrade Requirements
In any rebuild or upgrade of the Cable System, Grantee shall use equipment and materials which meet or exceed general industry standards. The System, as upgraded, shall have the capacity to provide pay-per-view and other premium services with only installation of equipment where the subscriber connects to the system. In all its construction and service provision activities, Grantee shall meet or exceed the construction, extension, and service requirements set forth in this Franchise Agreement.
4.3 Construction Plan and Schedule.
A detailed construction plan and schedule shall be submitted to the City for review and comment no later than thirty (30) days prior to the commencement of any Cable System upgrade construction. At the request of the City, Grantee shall meet with City at any time during the construction period to report on construction progress and the fulfillment of the construction schedule.
4.4 Limitation on Free Service
(A) The parties acknowledge that as of the effective date of this agreement, Grantee continues to provide Complimentary Services, one outlet of Basic Cable to the Franchising Authority’s fire station, City Hall, and three (3) K-12 public school(s). If additional outlets of Basic Cable and expanded basic service are provided to such buildings, the building owner/occupant shall pay the usual installation and service fees associated therewith. In the event Grantee elects, to the extent permitted by applicable laws, to invoice the City for Complimentary Services, the Grantee agrees that it will do so only after providing the City with one hundred twenty (120) days’ prior notice. Grantee agrees not to unfairly or unreasonably discriminate against the City with respect to other Washington served local franchising authorities, with respect to the costs to be imposed for Complimentary Services. The City shall have the right to discontinue receipt of all or a portion of the Complimentary Service(s) provided by Grantee in the event Grantee elects to impose a charge against the City for the Complimentary Services as set forth in this paragraph.
(B) New Installations. For new installations or relocation of installations, if the drop line to such building exceeds a Standard Installation drop of one hundred twenty-five (125) feet, the Grantee will accommodate the drop up to two hundred fifty (250) feet if the City or other agency provides the necessary attachment point for aerial service or conduit pathway for underground service. If the necessary pathway is not provided the City or other agency agrees to pay the incremental cost of such drop-in excess of one hundred twenty-five (125) feet or the necessary distribution line extension of the Cable System, including the cost of such excess labor and materials.
(C) Grantee does not waive any rights under applicable law regarding Gratis Cable, as set forth in Section 4.4(A). Should Grantee elect to begin offsetting the value of the Gratis Cable against franchise fees, Grantee shall first provide the City with ninety (90) days’ prior notice. Upon receipt of such notice, the City shall have the right to waive the requirements of Section 4.4(A).
4.5 Equal and Uniform Service
Subject to Section 2.7 of this document, Grantee shall provide access to equal and uniform Cable Service throughout the Franchise Area to the extent required by applicable law.
4.6 Cable System Specifications
(A) Cable System Maintenance. In all its construction and service provision activities, Grantee shall meet or exceed the construction, technical performance, extension and service requirements set forth in this Franchise Agreement.
(B) Emergency Alert Capability. Grantee shall provide and maintain an Emergency Alert System (EAS) consistent with applicable Federal law and regulations including 47 C.F.R., Part 11, and any Washington State Emergency Alert System.
(C) Standby Power. Grantee shall provide standby power generating capacity at the Cable System control center and at all hubs. Grantee shall maintain standby power supplies, rated at least at two hours’ duration, throughout the trunk and distribution networks. In addition, Grantee shall have in place throughout the Franchise term a plan, and all resources necessary for implementation of the plan, for dealing with outages of more than two hours. This outage plan and evidence of requisite implementation resources shall be presented to the City upon request.
(D) Satellite Earth Stations. Grantee shall provide a sufficient number of earth stations or its equivalent to receive signals from operational communications satellites or its equivalent that carry cable television services accessible to the Grantee throughout the life of the Franchise to carry out its obligations under this Franchise
4.7 Technical Standards
The Grantee shall maintain technical performance of the Cable System in accordance with the Federal Communications Commission (FCC) Rules and Regulations, Part 76, Subpart K (Technical Standards), as now or hereafter constituted. The city may establish reasonable technical standards for the performance of the Cable System if permitted to do so under applicable law.
4.8 Performance Testing
Grantee shall perform all Cable System tests at the intervals required by the FCC, and all other tests reasonably necessary to determine compliance with technical standards required by this Franchise. Written records of all Cable System test results performed by or for Grantee shall be maintained and available for City inspection upon request.
The tests may be witnessed by representatives of the City, and Grantee shall inform the City of the time and place of each test no less than three weeks prior to the scheduled compliance test. Written test reports of compliance testing shall be submitted to the City. If more than one of the locations tested fail to meet the performance standards, Grantee shall be required to indicate what corrective measures have been taken, and the entire test shall be repeated at the locations which failed. If a second test results in failure of one or more sites, then the City may seek remedies in accordance with Sections 7.5 and 7.6 unless the circumstances of the failure are caused by conditions which are beyond Grantee’s control, as determined, acknowledged and verified by the City.
4.9 Status Monitoring
Grantee shall continue to utilize status monitoring of the Cable System which can continually monitor the system for signal quality on the forward and return spectrums of the System. In addition, the Grantee shall maintain status monitoring for all power supplies in its headend(s) and hub(s) as well as the distribution system. Status monitoring shall be capable of notifying the Grantee 24/7 of system problems including utility power outages that will negatively affect its customers.
SECTION 5. PROGRAMMING AND SERVICES
5.1 Categories of Programming Service
Grantee shall provide video programming services in at least the following broad categories:
News and Information
Sports
General Entertainment
Arts/Performance/Humanities
Science/Technology
Children/Family/Seniors
Foreign Language/Ethnic Programming
Public, Educational and Governmental Access Programming
Weather
Movies
Religious Programming
Washington State based News, Information, and Sports, as available
Travel Information
5.2 Changes in Programming Services
Grantee shall not delete or so limit as to effectively delete any broad category of programming within its control without notifying the City. Further, Grantee shall provide at least thirty (30) days’ prior written notice to Subscribers and to the City of Grantee’s intent to effectively delete any broad category of programming or any channel within its control including all proposed changes in channel allocation, including any new equipment requirements that may occur as a result of these changes.
Subscribers will be notified by Grantee of any changes in programming services or channel positions as soon as possible in writing. Notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the Grantee. The Grantee shall also give 30 days’ written notice to both Subscribers and the City before implementing any service change. When the change involves the addition or deletion of channels, each channel added or deleted must be separately identified. For purposes of the carriage of digital broadcast signals, the operator need only identify for Subscribers, the television signal added and not whether that signal may be multiplexed during certain day parts.
5.3 Parental Control Device
Upon request by any Subscriber, Grantee shall make available a parental control or lockout device that will enable the Subscriber to block all access to any and all channels without affecting those not blocked. Grantee shall inform Subscribers of the availability of the lockout device at the time of original subscription and annually thereafter.
5.4 Closed Captioning
Grantee shall at all times comply with the requirements of 47 C.F.R. § 79.1 by providing services for the disabled, including, but not limited to, passing through closed captioning for local programming if provided by City or Designated Access Provider.
SECTION 6. RELOCATION OF GRANTEE’S HEADEND
In the event Grantee relocates its headend, Grantee will be responsible for replacing or restoring the existing dedicated connection at Grantee’s cost so that all the functions and capacity remain available, operate reliably and satisfy all applicable technical standards without additional costs to the City.
SECTION 7. REGULATORY PROVISIONS
7.1 Intent
The City retains the right to administer and regulate activities under the Franchise up to the full extent permitted by Applicable Law.
7.2 Delegation of Authority to Regulate
The City reserves the right to delegate its regulatory authority wholly or in part to agents of the City, including, but not limited to, an agency which may be formed to regulate several franchises in the Cowlitz County region.
7.3 Areas of Administrative Authority
(A) In addition to any other regulatory authority granted to the City by law or franchise, the City or its designee shall have administrative authority in the following areas:
1) Administering and enforcing the provisions of this Franchise Agreement, including the adoption of administrative rules and regulations to carry out this responsibility.
2) Planning expansion and growth of public access programming.
3) Formulating and recommending long-range cable communications policy for the Franchise area.
4) Disbursing and utilizing Franchise revenues paid to the City.
(B) Grantee shall cooperate fully in facilitating the City’s discharge of its administrative authority.
7.4 Regulation of Rates and Charges
(A) Notice of Change in Rates and Charges. Throughout the term of this Franchise, Grantee shall give the City and all Subscribers within the City of Castle Rock at least thirty (30) days’ notice of any intended change to Subscriber rates or charges.
(B) Rate Discrimination Prohibited. Within any category of Subscribers, Grantee shall not discriminate among Subscribers with regard to rates and charges made for any Cable Service based on considerations of race, color, creed, sex, marital or economic status, national origin, sexual preference, or neighborhood of residence, except as otherwise provided herein; and for purposes of setting rates and charges, no categorization of Subscribers shall be made by Grantee on the basis of those considerations.
7.5 Franchise Violations, Remedies, and Revocation
(A) Remedies
The City shall have the right to assert the remedies set out below in the event Grantee violates any provision of this Franchise. These remedies are intended to embody the City’s and/or the public’s rights under Washington state law to the extent permitted by Applicable Law.
1) To the extent the City deems necessary to remedy the default, proceed against all or any part of any security provided under the City Code or this Franchise, including, without limitation, any bonds, security funds, or other surety;
2) Impose liquidated damages as set forth in Section 7.6, but only after the due process provisions outlined herein have been completed;
3) Commencing an action at law for monetary damages or seeking equitable relief, including specific performance; or
4) In the case of a Grantee’s default as to a material provision of the Franchise, undertake the proceeding to revoke the Franchise.
Grantee shall be responsible for all direct and actual costs related to the enforcement action including, but not limited to, legal and administrative costs. In determining which remedy or remedies for Grantee’s violation are appropriate, the City shall take into consideration the nature and extent of the violation, the remedy needed to prevent such violations in the future, whether Grantee has a history of previous violations of the same or similar kind, and such other considerations as are appropriate under the circumstances.
(B) Revocation
The City has the right to revoke this Franchise, and all rights and privileges pertaining thereto, in the event that:
1) Grantee is in violation of any material provision of the Franchise Agreement or has demonstrated a pattern of Franchise violations and fails to correct the violation(s) after written notice of the violation(s) and proposed forfeiture and a reasonable opportunity thereafter to correct the violation(s) as noted in section 7.5 (c); or
2) Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt, to the extent permitted by Applicable Law; or
3) Grantee is found to have engaged in any or attempted fraud or deceit upon the City, Persons, or Subscribers; or
4) Grantee fails to post a performance bond as required under the terms of this Franchise.
(C) Enforcement Procedures
1) Notice of Violation or Default. In the event the City believes that the Grantee has not complied with the material terms of the Franchise or has demonstrated a pattern of Franchise violations, it shall first make contact with Grantee to informally discuss the issue. This informal discussion may be via telephone, email or other electronic means and is intended as a courtesy to Grantee prior to issuing a notice of violation. Thereafter the City shall notify the Grantee in writing with specific details regarding the exact nature of the alleged noncompliance or default (“Violation Notice”).
2) Grantee’s Right to Cure or Respond. The Grantee shall have thirty (30) days from the receipt of the Violation Notice to: (A) to respond to the City, 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 thirty (30) day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that they will be completed. The City shall not unreasonably refuse to accept the Grantee’s proposed cure date, but such decision shall be the City’s alone to make.
3) Contested Hearings. In the event the Grantee fails to respond to the Violation Notice or in the event that the alleged default is not remedied as required under this Section 7.5 (c), the City may refer the matter to the City’s hearing examiner in accordance with Sections 17.79.080 to 17.79.100 of the City Municipal Code. The Grantee will be provided an opportunity to present evidence to contest the alleged violation. City shall notify Grantee of the hearing in writing. The determination as to whether Grantee is in default of this Franchise shall be determined by the hearing examiner, but any such written decision shall be subject to appeal to a court of competent jurisdiction. Such appeal to the appropriate Court shall be filed within thirty (30) days of the issuance of the written decision of the hearing examiner. City shall receive notice from Grantee of any appeal concurrent with any filing to a court of competent jurisdiction.
4) In the event the hearing examiner determines that Grantee is in non-compliance with any provision of the Franchise, the City may impose any of the remedies set out in section 7.5(A).
7.6 Liquidated Damages
(A) Because Grantee’s failure to comply with the provisions of this Franchise will result in damage to the City and because it will be impractical to determine the actual amount of such damages, the City and Grantee hereby agree upon and specify certain amounts set forth hereafter in this section which represent both parties’ best estimate of the damages.
(B) The City shall specify any damages subject to this section and shall include such information in the Violation Notice sent to Grantee required under Section 7.5(C)(1). Such Violation Notice may provide for damages sustained prior to the Violation Notice where so provided, and subsequent thereto pending compliance by Grantee.
(C) To the extent that the City elects to assess liquidated damages as provided in this section and such liquidated damages have been paid, the parties agree that the assessment of liquidated damages does not constitute a waiver by the City of any other right or remedy it may have under the Franchise or Applicable Law.
(D) Unless otherwise provided, liquidated damages shall accrue once the thirty (30) day cure period has expired following Grantee’s receipt of the Violation Notice, unless the City has agreed to extend the thirty (30) day cure period. If Grantee fails to cure within the thirty (30) days, then the liquidated damages accrue from the date of the Violation Notice for a maximum of one hundred-twenty (120) days, whereupon the City shall pursue alternate remedies as provided herein. Nothing in this section prevents the parties from settling any dispute relating to liquidated damages by mutual stipulation.
(E) Grantee may cure the breach or violation within the time specified in Section 7.5(C)(2) to the City’s satisfaction, whereupon no liquidated damages are assessed.
(F) Schedule of Liquidated Damages. Nothing requires the City to assess liquidated damages, acting in its sole discretion, but such non-assessment does not operate as waiver or estoppel upon the City. Liquidated damages are set as follows:
1) For any non-continuing violation of any material provision, up to $250.00 per incident.
2) For any continuing violation up to $500 per incident, not to exceed $5,000 per year.
7.7 Removal of Cable Following Termination of Franchise
Any order by the City to remove cable or conduit shall be mailed to Grantee not later than thirty (30) calendar days following the final determination of revocation of Grantee’s right to occupy public right of way. Grantee shall file written notice with the City not later than thirty (30) calendar days following the date of termination of the Franchise of its intention to remove cable and a schedule for removal by location. The schedule and timing of removal shall be subject to approval and regulation by the City. Removal shall be completed no later than twelve (12) months following the date of expiration of the Franchise.
7.8 Failure to Enforce
Grantee shall not be relieved of any of its obligations to comply promptly with any provision of the Franchise by reason of any failure of the City to enforce prompt compliance, and City’s failure to enforce shall not constitute a waiver of rights or acquiescence in Grantee’s conduct.
7.9 Alternative Remedies
(A) As an alternative to the remedy set forth herein, the parties may mutually agree to submit any alleged violation of the provisions of this franchise to arbitration. The matter shall be determined by a board of three arbitrators, all of whom shall be citizens and taxpayers of the State of Washington and shall be selected as follows: one by the City Council, one by the Grantee, and one by the two so appointed. Should the two arbitrators be unable to name a third, such third arbitrator shall be named by a judge of the Superior Court for Cowlitz County. Unless otherwise agreed by the parties, the procedure to be followed by the parties shall be as provided the state’s Mandatory Arbitration Rules 4.1 to 4.3 (Procedures After Assignment) and 5.1 to 5.4 (Hearing). Said board shall make its decision in writing and file its decision with the parties within sixty (60) days from the date of the appointment of the final arbitrator. The decision of the board shall be by a majority vote and signed by at least two arbitrators. The written decision shall be final and binding upon the parties.
(B) No provision of this Franchise shall be deemed to bar the right of the parties to seek or obtain judicial relief from a violation of any provision of the Franchise or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in the Franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the parties to recover monetary damages (except where liquidated damages are otherwise prescribed) for such violation by Grantee, or to seek and obtain judicial enforcement of Grantee’s obligations by means of specific performance, injunctive relief or mandate, or any other judicial remedy at law or in equity.
7.10 Compliance with the Laws; Eminent Domain
Grantee shall comply with all applicable federal and State laws and regulations, including regulations of any administrative agency thereof, as well as all generally applicable ordinances, resolutions, rules and regulations of the City heretofore or hereafter adopted or established during the term, of this Franchise. Nothing in the Franchise shall expand or limit the City’s right of eminent domain under State law. Nothing in the Franchise shall be deemed to waive the requirements of any lawful code, ordinance or resolution of the City requiring permits, fees to be paid, or regulation of construction.
SECTION 8. REPORTING REQUIREMENTS
8.1 Quarterly Revenue Report
Grantee shall submit to the City along with its franchise fee payment a report showing the basis for computation of such fees showing the basis for the computation of the franchise fees paid during that period. This report shall separately indicate revenues received by Grantee within the City including, but not limited to such items as listed in the definition of “Gross Revenues” at Section 1.19 of this Franchise.
8.2 Complaint File and Reports
Grantee shall keep an accurate and comprehensive file of any and all complaints regarding the Cable System, in a manner consistent with privacy rights of Subscribers, and Grantee’s actions in response to those complaints. Those files shall remain open to the City during normal business hours. Upon written request, Grantee shall provide, an executive summary report quarterly (within 45 days of the end of the preceding quarter) to City, which shall include the following information:
1) Nature and type of customer complaint;
2) Number, duration, general location and customer impact of unplanned service interruptions;
3) Any significant construction activities which affect the quality or otherwise enhance the service the Cable System;
4) Average response time for service calls;
5) Phone activity report that includes use of automated response unit or voice response unit in answering and distributing calls from Subscribers at all call centers whether the calls are answered by a live representative, by an automated attendant or abandoned after thirty (30) seconds of call waiting;
6) New areas constructed and available for Cable Service, including multiple dwelling units;
7) Video programming changes (additions/deletions);
8) Such other information about special problems, activities, or achievements as Grantee may want to provide the City.
8.3 Annual Report
Upon one hundred and twenty (120) days’ written request, on or before May 31st of each year during the term of this Franchise, Grantee shall present a written report to the City or the City’s designee which shall include:
1) A summary of gross revenue and franchise fee calculations for the previous year.
2) A summary of the previous year’s activities for the Franchise Area served by Grantee including, but not limited to, the total number of Subscribers for each category of service, the number of homes passed, miles of overhead and underground cable plant.
3) A description of all significant changes and modifications to the system or services that have been implemented in the previous year.
8.4 Monitoring and Compliance Reports
Upon written request, but no more than once a year, Grantee shall provide FCC proof of performance test results. Upon written request, Grantee shall make available for City’s review, any other technical testing results related to the system serving the City.
8.5 Additional Reports and Information
(A) Grantee shall at all times maintain and allow the City access and the right to review a full and complete set of plans, records and “as built” maps showing the exact location of all Cable System equipment installed or in use in the Franchise Area, exclusive of electronics, Subscriber drops, and equipment provided in Subscribers’ homes. These maps shall be maintained in a standard format and medium agreed upon by the City and the Grantee.
(B) Confidentiality. The City agrees to treat as confidential any books and records that constitute proprietary or confidential information under federal or state law, to the extent Grantee makes the City aware of such confidentiality. Grantee shall be responsible for clearly and conspicuously marking or identifying as “Confidential” on each page that contains confidential or proprietary information. If the City believes it must release any such books and records marked or identified as “Confidential” in the course of enforcing this Agreement, in response to a public record request pursuant to RCW 42.56, subpoena or other court order, or for any other reason, it shall advise Grantee in advance so that Grantee may take appropriate steps to protect its interests, including, but not limited to, RCW 42.56.540. If the City receives a demand from any Person for disclosure of any information designated by Grantee as confidential, the City shall, so far as consistent with applicable law, advise Grantee and provide Grantee with a copy of any written request by the party demanding access to such information within a reasonable time so Grantee may take appropriate steps to protect the information from disclosure.
8.6 Grantee Report of Communications with State Regulatory Bodies or Committees
Grantee shall notify the City whenever the Grantee names the City in any filings which Grantee may submit to the State of Washington that bear relevance on the terms of this Franchise. Upon request, copies of responses from the State of Washington related to Grantees submittal pertaining to the Cable System serving the City shall likewise be filed.
In addition, Grantee shall within 10 days of any communication to or from any judicial or regulatory agency regarding any alleged or actual violation of a law, regulation or other requirement relating to the City’s administration of this Franchise, provide the City a copy of the communication.
SECTION 9. CUSTOMER SERVICE POLICIES
9.1 Response to Customers and Cooperation with City
Grantee shall promptly respond to all requests for service, repair, installation and information from Subscribers. Grantee acknowledges the City’s interest in the prompt resolution of all cable complaints and shall work in close cooperation with the City to resolve complaints.
9.2 Customer Service
(A) The Grantee shall comply with all applicable customer service standards established in the Cable Act or federal rules and regulations, including and not limited to FCC Rules and Regulations, Part 76, Subpart H and Subpart T, and Grantor has the authority to enforce such standards. Nothing in this Section shall limit the rights of the Grantor to establish additional or different standards in accordance with deferral law and regulations. Grantee will comply with privacy rights of Subscribers in accordance with federal, state, and local law.
(B) Grantee also has the option to provide payment drop off locations within the Franchise Area. Grantee shall provide City and Subscribers with at least sixty (60) days’ notice of election to discontinue the service center.
(C) City hereby adopts the customer service standards set forth in §76.309 of the FCC’s rules and regulations.
SECTION 10. LINE EXTENSION POLICY
10.1 Service and Installation
Grantee shall make service available at standard installation and service rates, for every potential subscriber, pursuant to the following requirements:
(A) In newly developing underground service areas, where a shared trench is provided, Grantee shall extend and make cable television service available to every dwelling unit in areas having at least twenty (20) dwelling units per trench mile, or any proportionate subset thereof, as measured from the existing system, and shall extend its system simultaneously with the installation of utility lines when this density requirement is met.
(B) In any area served by overhead facilities Grantee shall extend and make cable television service available to every dwelling unit in areas having at least twenty (20) dwelling units per strand mile, or any proportionate subset thereof, as measured from the existing system, and shall extend its system simultaneously with the installation of utility lines when this density requirement is met.
(C) In any area served by underground facilities that has existing homes that are not served by Grantee, Grantee shall extend and make cable television service available to every dwelling unit in areas having at least one-hundred twenty (120) dwelling units per trench mile, or any proportionate subset thereof, as measured from the existing system.
(D) Grantee must extend and make cable television service available to any resident requesting connection at the standard connection charge if the connection to the resident would require no more than a standard 125' aerial drop line.
(E) With respect to requests for connection requiring an aerial drop line in excess of 125', the Grantee must extend and make available cable television service to such residents at a connection charge not to exceed the actual installation costs incurred by the company for the distance exceeding 125'.
(F) The Grantee, in its application, may propose a line extension policy which will result in serving more residents of city than as required.
10.2 Annexed Areas and Requirements
(A) City Notice of Annexation. In the event the City annexes any area which is being provided cable service by Grantee, the City shall provide to Grantee, within (10) ten working days of passage by City Council, a copy of the City ordinance, legal description, if not found in the ordinance, addresses and a map defining the annexed area.
(B) Grantee Update of Subscriber Information Following Annexation. Grantee shall provide written notice to the City, within one hundred-twenty (120) days following an annexation, indicating that subscriber addresses within the annexation area have been updated to reflect the City as the franchising authority. Grantee shall provide revenue for new subscribers effective from the date of annexation.
(C) Grantee service to newly annexed areas. Upon the annexation of any additional land area by the City, the following conditions apply:
1) If the annexed area is not currently served by a cable operator, Grantee will be subject to the other provisions of this franchise.
2) If the annexed area is served by a cable operator other than Grantee, the Grantee has the option to extend its Cable System to the newly annexed area if Grantee determines that it is economically feasible to do so.
SECTION 11. COMPENSATION AND FINANCIAL PROVISIONS
11.1 Franchise Fees
(A) Fee amount. During the term of the Franchise, in consideration of the grant of this Franchise and permission to use the Public Rights of Way in the Franchise Area, Grantee shall pay to the City a franchise fee of 5% of Gross Revenues. If any such law, regulation or valid rule alters the 5% franchise fee enacted by the Cable Act, then the City shall have the authority to increase or decrease the franchise fee accordingly, provided such change is for purposes not inconsistent with Applicable Law, and Grantee agrees to pay the maximum permissible amount. In the event franchise fee is modified by the City, City agrees to provide Grantee with prompt written notice of such modification.
(B) Bundling. In the event Grantee bundles or combines Cable Services (which are subject to the franchise fee) with non-Cable Services (which are not subject to the franchise fee) so that Subscribers pay a single fee for more than one class of service resulting in a discount on Cable Services, Grantee agrees that for the purpose of calculation of the franchise fee, it shall allocate Cable Service revenue no less than a pro rata share of the revenue received for the bundled or combined services. The pro rata share shall be computed on the basis of the published charge for each service in the bundled or combined classes of services when purchased separately.
(C) Fee Payment
1) Franchise fees shall be paid quarterly for the preceding quarter ending March 31, June 30, September 30, and December 31. At the time of the quarterly payment, the Grantee shall submit a written report to the City, verified by and officer of Grantee, which shall contain an accurate statement of all Gross Revenues related to operation of the cable system franchised hereunder, in sufficient detail to enable the Grantor to verify the accuracy of franchise fee payments. No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim which the City may have for further or additional sums payable under the provisions of this section.
2) Neither current nor previously paid franchise fees shall be subtracted from the Gross Revenue amount upon which franchise fees are calculated and due for any period, unless otherwise required by Applicable Law. Nor shall copyright fees or other license fees paid by Grantee be subtracted from Gross Revenues for purposes of calculating franchise fees.
3) In the event that a franchise fee payment or other sum is not received by the Grantor on or before the due date, or is underpaid, the Grantee shall pay in addition to the payment, or sum due, interest from the due date at a rate equal to the legal interest rate in the State of Washington.
(D) City Utility or Business & Occupational Taxes.
In addition to the franchise fee, or as an alternative to all or any part of the Franchise Fee, the City may impose a utility or other tax on the Grantee’s Gross Revenues, provided that such utility tax is non-discriminatory. In such event, the City agrees that Grantee’s total annual payment obligation to the City shall not exceed eight percent (8%) of Grantee’s Gross Revenues.
11.2 Auditing and Financial Records
(A) Grantee shall manage all of its operations in accordance with a policy of keeping relevant books and records open and accessible to the City. The City shall have the right as necessary for effectively enforcing the Franchise, to inspect at any time during Normal Business Office Hours upon reasonable notice, all books, records, maps, plans, financial statements, service complaint logs, performance test results, records required to be kept by Grantee and any parent company pursuant to the rules and regulations of the FCC and other regulatory agencies, and other like materials of Grantee and any parent company which relate to the enforcement of the Franchise. Access to the aforementioned records shall not be denied by Grantee to representatives of the City on the basis that said records contain “proprietary” information. However, to the extent allowed by Washington law, including, but not limited to, RCW 42.56, the City shall protect the trade secrets and other confidential information of Grantee and any parent company.
(B) Grantee agrees to meet with representatives of the City upon request to review its methodology of record-keeping, financial reporting, computing franchise fee obligations, and other procedures the understanding of which the City deems necessary for understanding the meaning of reports and records.
(C) The City or its designee may conduct an audit of other inquiry in relation to payments made by Grantee no more than once every three (3) years during the Term. As a part of the audit process, the City or its designee may inspect Grantee’s books and records relative to the Franchise at any time during regular business hours and after thirty (30) calendar days’ written notice. All books and records deemed by the City or its designee to be reasonably necessary for such audit or inquiry shall be made available by Grantee in a mutually agreeable format and location within the service area. Grantee agrees to give its full cooperation in any audit or inquiry and shall provide responses to inquiries within thirty (30) calendar days of written request. Grantee may provide such responses after the expiration of the response period above if the City agrees in writing to provide additional time.
(D) Upon the completion of any such audit by the City, the City shall provide to the Grantee a final report setting forth the City’s findings in detail, including any and all substantiating documentation. Enforcement of any overpayment or underpayment shall be undertaken in accordance with Section 7.5 of this Franchise. In the event Grantee has underpaid the City by an amount greater than five percent (5%) underpayment, Grantee agrees to pay the cost of the audit in an amount up to seven thousand five hundred ($7,500). No such payment shall be required of Grantee until Grantee has exhausted all of its Legal and administrative remedies.
(E) In the event of an overpayment by Grantee, the City shall have the option of reimbursing Grantee within forty-five (45) days or of requesting in writing within forty-five (45) days that Grantee withhold fifty percent (50%) of each future Franchise Fee payment until such time as said overpayment is recovered and thereafter remitting the full amounts to the City.
(F) The City agrees to request access to only those books and records, in exercising its rights under this section, which it deems reasonably necessary for the enforcement of the Franchise.
11.3 Performance Bond
Within thirty (30) days after the Grantee’s acceptance of this Franchise, Grantee shall post a performance bond, in the amount of seventy-five thousand dollars ($75,000.00) to ensure Grantee’s faithful performance of the terms of this Franchise. Neither the provisions of this section, any bond accepted by the City pursuant thereto, nor any damages recovered by the City thereunder shall be construed to excuse faithful performance by Grantee or to limit liability of Grantee under the Franchise or for damages, either to the full amount of the bond or otherwise, except as otherwise provided herein.
11.4 Validity of Bond
If, at any time during the term of the Franchise, the condition of the entity issuing the bond shall change in such a manner as to render the bond unsatisfactory to the City, Grantee shall replace such bond by a bond of like amount and similarly conditioned, issued by an entity satisfactory to the City.
11.5 Indemnification by Grantee
Grantee shall, at its sole expense, fully indemnify, defend and hold harmless the City, and in their capacity as such, the officers and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damage or otherwise except those arising wholly from negligence on the part of the City or its employees; for actual or alleged injury to persons or property, including loss of use of property due to an occurrence, whether or not such property is physically damaged or destroyed, in any way arising out of or through or alleged to arise out of or through the acts or omissions of Grantee or its officers, agents, employees, or contractors or to which Grantee’s or its officers, agents, employees or contractors acts or omissions in any way contribute, and whether or not such acts or omissions were authorized or contemplated by this Franchise or Applicable Law; arising out of, or alleged to arise out of, any claim for damages for Grantee’s invasion of the right of privacy, defamation of any person, firm or corporation, or the violation of infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation; arising out of or alleged to arise out of Grantee’s failure to comply with the provisions of any statute, regulation or resolution of the United States, State of Washington or any local agency applicable to Grantee in its business. Nothing herein shall be deemed to prevent the City, its officers, or its employees, from participating in the defense of any litigation by their own counsel, at such parties’ expense. Such participation shall not, under any circumstances, relieve Grantee from its duty of defense against liability, or of paying any judgment entered against the City, its officers, or its employees.
11.6 Grantee Insurance
(A) Grantee shall maintain, throughout the term of the Franchise, liability insurance in the minimum amounts of:
1) Commercial General Liability: Two-million dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage, and for those policies with aggregate limits, a two-and-one-half million dollars ($2,500,000) aggregate limit;
2) Automobile Liability: Two-million dollars ($2,000,000) combined single limit per accident for bodily injury and property damage; and
3) Two-million dollars ($2,000,000) for all other types of liability, including claims for damages for invasion of the right of privacy; for defamation of any person, firm, or corporation; for the violation or infringement of any copyright, trademark, trade name, service mark or patent; or, for damage to any other person, firm, or corporation arising out of or alleged to arise out of failure to comply with the provisions of any statute, regulation or resolution of the United States, State of Washington, or any local agency with jurisdiction.
(B) Such insurance shall specifically name as additional insured the City of Castle Rock, its officers, employees and agents, shall further provide that the policy shall not be modified or canceled during the life of this Franchise without giving 30 days written notice to the City.
(C) Grantee shall file with the City a certificate of insurance showing up-to-date coverage and additional insured coverage, as set forth above. Coverage shall not be changed or canceled without approval of the City.
SECTION 12. MISCELLANEOUS PROVISIONS
12.1 Posting and Publication
Grantee shall assume the cost of posting and publication of this Franchise as such posting and publication is required by law and such is payable upon Grantee’s filing of acceptance of this Franchise.
12.2 Guarantee of Performance
Grantee agrees that it enters into this Franchise voluntarily in order to secure and in consideration of the grant from the City of a 10-year Franchise. Performance pursuant to the terms and conditions of this Franchise agreement is guaranteed by Grantee.
12.3 Entire Agreement
This Franchise Agreement contains the entire agreement between the parties, supersedes all prior agreements or proposals except as specifically set forth herein, and cannot be changed orally but only by an instrument in writing executed by the parties.
12.4 Consent
Wherever the consent or approval of either Grantee or the City is specifically required in this Franchise Agreement, such consent or approval shall not be unreasonably withheld.
12.5 Ordinances Terminated
The cable television franchise as originally granted by Ordinance Nos. 99-3444 is hereby terminated.
12.6 Franchise Acceptance
This Franchise granted by this Ordinance shall be effective fifteen (15) days from date of final passage by City Council; provided, however, that Grantee shall have sixty (60) days to accept the Franchise and comply with all conditions for such acceptance. This Franchise shall be voidable at the City’s discretion if Grantee fails to accept within sixty (60) days.
12.7 Force Majeure
If by reason of force majeure the Grantee is unable in whole or in part to carry out its obligations hereunder, the Grantee shall not be deemed in violation or default during the continuance of such inability. The term “force majeure” as used herein shall mean the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders of the government of the United States of America, or of the State of Washington, or their departments, agencies, political subdivisions, or officials; acts of any civil or military authority; insurrections; riots; epidemics; landslides; earthquakes; lightning; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; restraint of government and people; civil disturbances; explosions; partial or entire failure of utilities; documented work delays caused by waiting for utility providers to service or monitor utility poles to which grantee’s facilities are attached and documented unavailability of materials and/or qualified labor to perform the work necessary; and similar occurrences outside the control of the Grantee. The Grantee agrees, however to give its best efforts to remedy as soon as possible, under the circumstances, the cause or causes preventing Grantee from carrying out its responsibilities and duties under this Franchise Agreement.
12.8 Work of Contractors and Subcontractors
Work by contractors and subcontractors are subject to the same restrictions, limitations and conditions as if the work were performed by Grantee. Grantee shall be responsible for all work performed by its contractors and subcontractors, and others performing work on its behalf as if the work were performed by it and shall ensure that all such work is performed in compliance with this Franchise, the City Code and other Applicable Law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Grantee’s responsibility to ensure that contractors, subcontractors or other Persons performing work on Grantee’s behalf are familiar with the requirements of this Franchise, the City Code and other Applicable Laws governing the work performed by them.
12.9 Severability
If any Section, subsection, paragraph or provision of this Franchise is determined to be illegal, invalid or unconstitutional by any court of competent jurisdiction, such determination shall have no effect on the validity of any other Section, subsection, paragraph or provision of this Franchise, all of which will remain in full force and effect for the term of the Franchise.
12.10 Counterparts
This Franchise Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original copy, and all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all parties shall not have signed the same counterpart.
12.11 No Waiver of Rights
Nothing in this Franchise shall be construed as a waiver of any rights, substantive or procedural, either City or Grantee may have under Federal or state law unless such waiver is expressly stated herein.
12.12 No Third-Party Beneficiaries
Nothing in this Franchise is or was intended to confer third-party beneficiary status on any member of the public to enforce the terms of this Franchise.
12.13 Modification
No provision of this Franchise shall be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the City and the Grantee, which amendment shall be authorized on behalf of the City through the adoption of an appropriate resolution or order by the City, as required by applicable law.
12.14 Notices
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 City:
City Public Works Director
City of Castle Rock
360 “A” Street
P.O. Box 370
Castle Rock, WA 98611
Non-binding courtesy copy to:
Frank F. Randolph, City Attorney
Walstead Mertsching
P.O. Box 1549
1700 Hudson Avenue, Third Floor
Longview, WA 98632
(Unless otherwise designated by City)
To the Grantee:
Comcast of Florida/Michigan/New Mexico/Pennsylvania/Washington, LLC.
Attention: Government Affairs
9605 SW Nimbus Ave.
Beaverton, Oregon 97008
12.15 Governing Law
Franchise shall be deemed to be executed in the State of Washington, and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with, the laws of the State of Washington, as applicable to contracts entered into and performed entirely within the State.
FRANCHISE ACCEPTANCE
The undersigned, Comcast of Florida/Michigan/New Mexico/Pennsylvania/Washington, LLC, does hereby accept the Franchise granted pursuant to Ordinance No. 2020-02 passed and approved on February 24, 2019 and does hereby agree that it will comply with and abide by all of the provisions, terms, and conditions of the Franchise subject to applicable federal, state, and local law. 
EXHIBIT A - FRANCHISE FEE PAYMENT WORKSHEET
EXHIBIT B - FCC CUSTOMER SERVICE STANDARDS
Grantee shall comply in all respects with the following customer service requirements established by the §76.309 of the FCC’s rules and regulations:
(1) Cable System office hours and telephone availability:
(i) The cable operator will maintain a local, toll-free or collect call telephone access line which will be available to its Subscribers twenty-four (24) hours a day, seven (7) days a week.
(A) Trained company representatives will be available to respond to customer telephone inquiries during Normal Business Hours.
(B) After Normal Business Hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained company representative on the next business day.
(ii) Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety percent (90%) of the time under Normal Operating Conditions, measured on a quarterly basis.
(iii) The operator shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply.
(iv) Under Normal Operating Conditions, the customer will receive a busy signal less than three percent (3%) of the time.
(v) Customer service center and bill payment locations will be open at least during Normal Business Office Hours and will be conveniently located.
(2) Installations, Outages and Service Calls. Under Normal Operating Conditions, each of the following standards will be met no less than ninety five percent (95%) of the time measured on a quarterly basis:
(i) Standard Installations will be performed within seven (7) business days after an order has been placed. “Standard” Installations are those that are located up to one hundred twenty-five (125) feet from the existing distribution system.
(ii) Excluding conditions beyond the control of the operator, the cable operator will begin workingon “Service Interruptions” promptly and in no event later than twenty-four (24) hours after the interruption becomes known. The cable operator must begin actions to correct other Service problems the next business day after notification of the Service problem.
(iii) The “appointment window” alternatives for Installations, Service calls, and other Installation activities will be either a specific time or, at maximum, a four (4) hour time block during Normal Business Hours. (The operator may schedule Service calls and other Installation activities outside of Normal Business Hours for the express convenience of the customer.)
(iv) An operator may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment.
(v) If a cable operator representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer.
(3) Communications between Cable operators and Subscribers:
(i) Refunds. Refund checks will be issued promptly, but no later than either:
(A) The customer’s next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or
(B) The return of the equipment supplied by the cable operator if service is terminated.
(ii) Credits. Credits for Service will be issued no later than the customer’s next billing cycle following the determination that a credit is warranted.
EXHIBIT C - CHECKLIST OF NOTICES AND REPORTS
This Exhibit provides excerpts from this Agreement related to regular notice and reporting requirements of this document. Other less-routine notice requirements are described in relevant sections of this Agreement and are not listed below.
Reports and notice requirements - Cross-reference – Grantee to City
Section 4.8 - Performance Testing - Grantee shall inform the City of the time and place of each test no less than three weeks prior to the scheduled compliance test.
Section 5.2 - Changes in Programming Services - Grantee shall provide at least thirty (30) day’s prior written notice to Subscribers and to the City of Grantee’s intent to effectively delete any broad category of programming or any channel within its control, including all proposed changes in channel allocation, including any new equipment requirements that may occur as a result of these changes. The Grantee shall also give 30 days’ written notice to both Subscribers and the City before implementing any service change.
Section 7.4 - Regulation of Rates and Charges - Grantee shall give the City and all Subscribers within the City of Castle Rock at least thirty (30) days’ notice of any intended change to Subscriber rates or charges.
Section 8.1 - Quarterly Revenue Report
Section 8.2 - Complaint File and Reports
Section 8.3 - Annual Report
Section 8.6 - Grantee Report of Communications with State Regulatory Bodies or Committees - Grantee shall notify the City whenever the Grantee names the City in any filings which Grantee may submit to the State of Washington that bear relevance on the terms of this Franchise. Grantee shall within 10 days of any communication to or from any judicial or regulatory agency regarding any alleged or actual violation of a law, regulation or other requirement relating to the City’s administration of this Franchise, provide the City a copy of the communication
Section 10.2 - Annexed Areas and Requirements - Grantee shall provide written notice to the City, within one hundred-twenty (120) days following an annexation, indicating that subscriber addresses within the annexation area have been updated to reflect the City as the franchising authority.
Reports and notice requirements - Cross-reference - City to Grantee
Section 10.2 - Annexed Areas and Requirements - In the event the City annexes any area which is being provided cable service by Grantee, the City shall provide to Grantee, within (10) ten working days of passage by City Council, a copy of the City ordinance, legal description, if not found in the ordinance, addresses and a map defining the annexed area.