Chapter 5.26 CABLE SERVICE FRANCHISE

For the purpose of this franchise, unless otherwise provided herein, the following terms, phrases, words, abbreviations and their derivations shall have the meaning set forth below. Words used in the present tense include the future tense, words in the single number include the plural number, and words in the plural number include the singular. The words “shall” and “will” are mandatory, and “may” is permissive. Words not defined shall be given their common and ordinary meaning.

“Affiliate” means an entity which owns or controls, is owned or controlled by, or is under common ownership with the grantee.

“Basic cable service” means any cable service tier that includes the lawful retransmission of local television broadcast signals and any public, educational, and governmental access programming required by this franchise to be carried on the basic tier. Basic cable service as defined herein shall be consistent with 47 U.S.C. Section 543(b)(7) (1997).

“Broadband system” means the district’s high-speed, high capacity, fiber optic system that is being utilized by the grantee(s) to provide cable service in the county.

“Cable Act” means the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, (codified at 47 U.S.C. Sections 521 – 611 (1982 and Supp. V. 1987) as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications Act of 1996, Pub. L. No. 104-104 (1996) as it may, from time to time, be amended.

“Cable service franchise” or “franchise” means an initial franchise authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to Section 626 of the Cable Act), issued by the county, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the provision of cable service.

“Cable services” or “services” means the one-way transmission to subscribers of (1) video programming, or (2) other programming service; and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

“County” means the county of Chelan, Washington.

“Communications infrastructure right-of-way use agreement” or “district use agreement” means the agreement between the county and the district under which the district is authorized to install, maintain and operate its broadband system on a wholesale basis, Resolution No. 2005-59.

“Direct incremental costs” means the costs actually incurred by the grantee in meeting an obligation under its franchise, including payment to the district, which it would not otherwise have incurred in order to provide cable service or meet another obligation of the franchise.

“District” means Public Utility District No. 1 of Chelan County, Washington.

“FCC” means the Federal Communications Commission.

“Franchise area” means the entire geographic area within the municipal boundaries of the county, excluding incorporated municipalities, as it is now constituted or may in the future be constituted.

“Franchise fee” means any tax, fee, or assessment of any kind imposed by the county or other governmental entity on grantee or subscriber, or both, solely because of its status as such. The term “franchise fee” does not include: (1) any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment that is unduly discriminatory against cable operators or cable subscribers); (2) capital costs that are required by this franchise agreement to be incurred by grantee for governmental access equipment and facilities; (3) requirements or charges incidental to the awarding or enforcing of this franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or (4) any fee imposed under Title 17 of the United States Code.

“Grantee(s)” means the person(s) authorized to provide cable services in the county pursuant to this chapter, and listed in Exhibit A to the resolution codified in this chapter, as may be amended from time to time, attached hereto, or the lawful successor(s), transferee(s), or assignee(s) thereof.

“Gross revenues” mean the monthly cable service revenues received by a grantee from subscribers; provided, however, that such phrase shall not include: (1) revenues received from any national advertising transmitted by a grantee; (2) any taxes on cable service which are imposed directly or indirectly on any subscriber thereof by any governmental unit or agency, and which are collected by a grantee on behalf of such governmental unit or agency.

“Person” means any corporation, partnership, proprietorship, individual, organization, governmental entity or any natural person.

“Right-of-way” means all property, including the surface of, the space above and below, in which the county has any form of ownership or title and which is held for public road purposes, regardless of whether or not any road exists thereon or whether or not it is used, improved, or maintained for public travel, now or hereafter held by the county in the franchise area which shall entitle the county and the grantee(s) to the use thereof for the purpose of providing cable service and the use thereof for the purposes of installing or constructing and operating cable services over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to such cable service operations.

“Subscriber” means any person, who or which lawfully receives cable service provided by the grantee, and who does not further distribute it. (Res. 2005-59 (§ 1), 5/31/05).

5.26.020 Grant of franchise.

(a) In order to maintain competitive neutrality, administrative ease and economy, it is expressly agreed that the person(s) proposing to utilize capacity on the district’s broadband system to provide cable services, whose ownership are indicated in Exhibit A to the resolution codified in this chapter, shall be subject to this single common master cable service agreement and franchise.

(b) The person(s) listed in Exhibit A to the resolution codified in this chapter are hereby granted cable service franchise(s), subject to the terms and conditions of this master cable service agreement and franchise (hereinafter also referred to as the “franchise”). Although adopted pursuant to a single franchise resolution, this grant provides each grantee listed in Exhibit A to the resolution codified in this chapter the individual authority, right and privilege, to construct, reconstruct, operate and provide cable services within the county, as it is now or may in the future be constituted. The single and common franchise resolution notwithstanding, the grant of this franchise shall in no way create any liability, joint or otherwise, on the part of the individual grantees with respect to the obligations of such other grantees authorized under this franchise. Each grantee authorized under this grant shall individually comply with all of the requirements and obtain all of the benefits of this franchise. At such time during the term of this franchise as additional providers seek to utilize capacity on the district’s broadband system to provide cable services, the county shall make such subsequent providers subject to this franchise by amendment to Exhibit A to the resolution codified in this chapter. (Res. 2005-59 (§ 2.1), 5/31/05).

5.26.030 Right of county to grant franchise.

Grantee(s) acknowledge and accept the right of county to grant this franchise by passage of a resolution. (Res. 2005-59 (§ 2.2), 5/31/05).

5.26.040 Term.

The franchise granted by this chapter shall be for an initial term of fifteen years from the effective date of the franchise as set forth in Section 5.26.050, unless otherwise lawfully terminated in accordance with the terms of this franchise. The franchise may be extended for additional one-year periods upon completion of each favorable three-year review as specified in Section 5.26.180. (Res. 2005-59 (§ 2.3), 5/31/05).

5.26.050 Effective date.

Subject to the acceptance by the grantee(s), the effective date of the franchise resolution codified in this chapter shall be the date of its passage and final adoption. (Res. 2005-59 (§ 2.4), 5/31/05).

5.26.060 Written notice.

All notices, reports or demands required to be given in writing under this franchise agreement shall be deemed to be given when delivered personally to the person designated below, or when five days have elapsed after it is deposited in United States mail in a sealed envelope, with registered or certified mail, postage prepaid thereon, or on the next business day if sent by express mail or overnight air courier addressed to the party to which notice is being given, as follows:


If to county:	Chelan County Board of Commissioners
	350 Orondo Street
	Chelan County Court House
	Wenatchee, WA 98801

	AND TO

	County Risk Manager
	Attention: Prosecutor’s Office
	401 Washington Street, Fifth Floor
	Wenatchee, WA 98801

If to grantee(s), at the address(es) listed in Exhibit A to the resolution codified in this chapter.

Such addresses may be changed by either party upon notice to the other party given as provided in this section. (Res. 2005-59 (§ 2.5), 5/31/05).

5.26.070 Franchise not exclusive.

(a) This franchise granted herein is not exclusive, and shall not be construed as any limitation upon the right of county, through its proper offices, and in accordance with applicable law, to grant to other persons or corporations rights, privileges or authority similar to or different from the rights, privileges and authority herein set forth, in the same or other rights-of-way or public places or other places the grantee(s) is entitled to occupy by this franchise resolution.

(b) The district’s broadband system being utilized by the grantee(s), in accordance with the district’s communications infrastructure right-of-way use agreement with the county, shall be constructed and maintained so as not to unreasonably interfere with other uses of the right-of-way. (Res. 2005-59 (§ 2.6), 5/31/05).

5.26.080 Binding contract.

This franchise (including all of grantee(s)’s particular rights, powers, protections, privileges, immunities and obligations associated therewith as the same exist on the date hereof) shall constitute a legally binding contract between the county and grantee(s), and as such, cannot be amended, modified or changed, except by authorized state or federal legislation or executive orders, without the mutual written consent of the parties in any manner whatsoever; provided, however, that nothing herein contained shall preclude the county from the proper exercise of its police powers. (Res. 2005-59 (§ 2.7), 5/31/05).

5.26.090 Federal, state, and county jurisdiction.

(a) This franchise shall be construed in a manner consistent with all applicable federal and state laws.

(b) Grantee(s)’s rights are subject to the police powers of the county to adopt and enforce resolutions necessary to the health, safety, and welfare of the public. Grantee(s) shall comply with all applicable general laws and ordinances enacted by the county pursuant to that power.

(c) In the event of a change in state or federal law which by its terms would require the county to amend this agreement, the parties shall negotiate in good faith to modify the franchise in a mutually agreed upon manner. In the event of a dispute concerning any matter within the scope of the agreement, the parties agree to immediately meet and confer in good faith in an attempt to resolve the dispute. In the event the dispute cannot be resolved within ninety days, or whatever longer period may be mutually acceptable, either party may elect to utilize a dispute resolution board. A dispute resolution board shall be comprised of three members; one member chosen by each of the parties and the third member chosen by the two selected. The dispute resolution board shall render a decision by a majority vote, after hearing the testimony and evidence and responses thereto from both parties. Upon completion of the dispute resolution board proceedings, neither party is bound to adhere to its decision; each party is entitled to pursue any available remedies, either at law or in equity, to which it may be entitled.

(d) Alternative Remedies. No provision of this franchise agreement shall be deemed to bar the right of the county or grantee to seek or obtain judicial relief from a violation of any provision of this franchise agreement or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the county or grantee to recover monetary damages for such violations by the other party, or to seek and obtain judicial enforcement of the other party’s obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. (Res. 2005-59 (§ 2.8), 5/31/05).

5.26.100 Franchise renewal.

Renewal of this franchise shall be in accordance with applicable law including, but not necessarily limited to, the Cable Communications Policy Act of 1984, as amended. County and grantee(s), by mutual consent, may enter into renewal negotiations at any time during the term of the franchise. (Res. 2005-59 (§ 2.9), 5/31/05).

5.26.110 Competitive neutrality.

In the event the county grants an overlapping franchise for cable services within the cable franchise area under terms and conditions materially different from those terms applied to the grantee(s) pursuant to this franchise that puts the grantee(s) at a competitive disadvantage and substantially impairs the value of this franchise agreement to the grantee(s), then the grantee(s) may (individually) elect within six months of the grant of such overlapping franchise agreement to negotiate with the county in good faith to modify the terms of the agreement relative to said overlapping area, and if the parties fail to reach an agreement, the grantee(s) may (individually) elect to obtain a new franchise agreement pursuant to the renewal provisions of this agreement, and the then applicable provisions of state and federal law. (Res. 2005-59 (§ 2.10), 5/31/05).

5.26.120 Annual franchise fee.

(a) Grantee(s) shall pay a total franchise fee equal to five percent of gross revenues received by the grantee from the provision of cable service to subscribers in the county on an annual basis; provided, however, that a grantee may credit against any such payments: (1) any tax, fee or assessment of any kind imposed on cable service by the county or other governmental entity on a cable operator, or subscriber, or both, solely because of their status as such; (2) any tax, fee or assessment of general applicability which is unduly discriminatory against cable operators or subscribers (including any such tax, fee or assessment imposed, both on utilities and cable operators and their services), and (3) any other special tax, assessment or fee such as a business, occupation and entertainment tax. For the purpose of this section, the twelve-month period applicable under the franchise for the computation of the franchise fee shall be a calendar year, unless otherwise agreed to in writing by the county and the grantee. The franchise fee payment shall be due and payable ninety days after the close of the preceding calendar year. Each payment shall be accompanied by a brief report from a representative of the grantee showing the basis for the computation. In no event shall the franchise fee payments required to be paid by a grantee exceed five percent of gross revenues received by grantee in any twelve-month period.

(b) Limitation on Franchise Fee Actions. The period of limitation for recovery of any franchise fee payable hereunder shall be five years from the date on which payment by the grantee is due. Unless within five years from and after the payment due date the county initiates a lawsuit for recovery of such franchise fees in the Chelan County superior court, such recovery shall be barred and the county shall be stopped from asserting any claims whatsoever against the grantee relating to any such alleged deficiencies. (Res. 2005-59 (§ 3.1), 5/31/05).

5.26.130 Liability insurance.

Upon the effective date of the franchise codified in this chapter, each grantee shall, at its sole expense, take out and maintain during the life of this franchise commercial general liability insurance with a company licensed to do business in the state of Washington that shall protect the grantee(s), the county, and the county’s officials, officers, and employees from claims which may arise from operations under this franchise, whether such operations are by the grantee(s); its officers, directors, employees and agents, or any subcontractors of grantee(s). This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from all grantee(s)’s operations, products, services or use of automobiles, or construction equipment. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall be two million dollars per occurrence and five million dollars in the annual aggregate. The following endorsements shall attach to the liability policy:

(1) The policy shall cover personal injury as well as bodily injury.

(2) The policy shall cover blanket contractual liability subject to the standard universal exclusions of contractual liability included in the carrier’s standard endorsement as to bodily injuries, personal injuries and property damage.

(3) Broad form property damage liability shall be afforded.

(4) The county shall be named as an additional insured on the policy.

(5) An endorsement stating that the policy shall not be cancelled, or materially modified so as to be out of compliance with the requirements of this section, or not renewed without thirty days’ advance written notice of such event being given to the county. (Res. 2005-59 (§ 3.2), 5/31/05).

5.26.140 Indemnification.

(a) Except as otherwise provided herein, each grantee shall, at its sole cost and expense, indemnify, hold harmless, release and defend county, its officials, boards, commissions, agents, and employees from and against any and all lawsuits, claims, actions, demands, damages, disability, losses, expenses including reasonable attorney’s fees and other defense costs or liabilities of any nature that may be asserted by any person, from any cause whatsoever, arising out of or in any way connected with the operations, expressly authorized herein, the exercise of the franchise pursuant to this franchise, and/or the activities of grantee(s), its subcontractor, employees and agents hereunder, including copyright infringement or other program related liability.

The indemnification obligation of franchisee shall not be limited in any way by the application of any workmen’s compensation acts, disability benefit acts or other employee benefit acts and the franchisee expressly waives the protection afforded by such laws. The foregoing indemnification obligations are a material inducement to the county to grant this franchise and it has been mutually negotiated.

(b) County does not, and shall not, waive any rights against grantee(s) which it may have by reason of this indemnification, because of the acceptance by county, or the deposit with county by grantee(s), of any of the insurance policies described in this franchise.

(c) This indemnification by grantee(s) shall apply to all damages and claims for damages of any kind suffered by reason of any of the operations referred to in this section, regardless of whether or not such insurance policies shall have been determined to be applicable to any such damages or claims for damages.

(d) Grantee(s) shall not be required to indemnify county for damages to the extent arising from or caused by the sole negligence or gross negligence or willful misconduct of the county or its officials, boards, commissions, agents, or employees.

(e) With respect to any claims which are subject to indemnity hereunder, grantee(s) shall immediately notify both the county’s risk manager and clerk of the county commission of any such claims which have been filed against the grantee(s) or grantee(s) and county jointly, and shall provide the county with a copy of the same. Grantee(s)’s obligations hereunder shall be subject to the county giving the grantee(s) written notice of its obligation to indemnify the county within thirty days of county’s receipt of a claim or action pursuant to this section. If the county determines that it is necessary for it to employ separate counsel, the costs for such separate counsel shall be the responsibility of the county.

(f) Nothing herein shall be construed to deem the county liable for content or programming decisions of grantees or actual provision of service to grantee’s customers. (Res. 2005-59 (§ 3.3), 5/31/05).

5.26.150 Bonds and other surety.

Except as expressly provided herein, grantee(s) shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the franchise or continuing its existence. The county acknowledges that the legal, financial and technical qualifications of grantee(s) are sufficient to afford compliance with the terms of the franchise and the enforcement thereof. Grantee(s) and county recognize that the costs associated with bonds and other surety may ultimately be borne by the subscribers in the form of increased rates for cable services. In order to minimize such costs, the county agrees to require bonds and other surety only in such amounts and during such times as there is a reasonably demonstrated need therefor. The county agrees that in no event, however, shall it require a bond or other related surety in an aggregate amount greater than ten thousand dollars, conditioned upon the substantial performance of the material terms, covenants and conditions of the franchise. Initially, no bond or other surety will be required. In the event that one is required in the future, the county agrees to give grantee(s) at least sixty days’ prior written notice thereof stating the exact reason for the requirement. Such reason must demonstrate a change in the grantee’s legal, financial or technical qualifications which would materially prohibit or impair its ability to comply with the terms of the franchise or afford compliance therewith. (Res. 2005-59 (§ 3.4), 5/31/05).

5.26.160 Procedure for remedying franchise violations.

(a) The county shall provide the applicable grantee(s) with a detailed written notice of any franchise violation upon which it proposes to take action. Unless the nature of the violation requires a more rapid cure, the grantee(s) shall have thirty days within which to demonstrate to the county’s reasonable satisfaction that a violation does not exist, cure such violation, or, if the violation cannot be corrected in thirty days, to submit a plan satisfactory to the county to correct the violation.

(b) If the applicable grantee(s) fails to cure the violation within the applicable time period, or the grantee(s)’ plan of correction is not reasonably effective, the county shall schedule a public meeting to investigate the default. Such public meeting shall be held at the next regularly scheduled meeting of the county which is scheduled at a time which is no less than five business days therefrom. The county shall notify the grantee of the time and place of such meeting and provide the grantee with an opportunity to be heard.

(c) Subject to applicable federal and state law, in the event the county commission, after such public meeting, makes a written final determination on the basis of findings of fact that the grantee is in default of any provision of the franchise, the county may:

(1) Foreclose on all or any part of any security provided under this franchise, if any, including without limitation, any bonds or other surety; provided, however, the foreclosure shall only be in such a manner and in such amount as the county reasonably determines is necessary to remedy the default;

(2) Commence an action at law for monetary damages or seek other equitable relief;

(3) In the case of a substantial default of a material provision of the franchise, declare the franchise to be revoked; or

(4) Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages.

(d) The 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 county to enforce prompt compliance.

(e) The grantee shall have thirty days to appeal any final decision of the county to the Chelan County superior court. Any default action of the county shall be stayed pending the final resolution of the appeal process.

(f) In no event will a revocation or termination of an individual grantee’s franchise impose any liability upon, or have the effect of revoking or terminating, the rights of other authorized grantees to continue to provide cable services, or of the district to maintain its broadband system under its communications infrastructure right-of-way use agreement with the county. (Res. 2005-59 (§ 3.5), 5/31/05).

5.26.170 System capabilities.

(a) The grantee(s)’s cable service shall be delivered via the district’s broadband system. The system shall provide for a minimum bandwidth capacity of fifty to eight hundred seventy MHz. A general system description is provided in Exhibit B, attached to the resolution codified in this chapter.

(b) Every grantee shall comply with all FCC customer service obligations, as set out in Section 5.26.260, with respect to customers whose premises are passed by portions of the district’s broadband system which are fully activated, tested and available for service.

(c) Grantee(s) agree to cooperate with county from time to time in a periodic review, relating to change in law, technology, and services and agrees to furnish county with information relating to services and technological changes including plans and developments within the industry. (Res. 2005-59 (§ 4.1), 5/31/05).

5.26.180 Periodic evaluation, review and modification.

In order to provide for a maximum degree of flexibility in this franchise, the county and grantee(s) agree that the following review provisions apply:

(1) The county reserves the right to adopt rules and regulations controlling the procedures as set forth below and subjects for review sessions. In the absence of any county action taken to exercise these rights, grantee(s) shall be subject to at least the procedures and subjects described in this section.

(2) The county may require a review session within thirty days of the third, sixth, ninth and twelfth anniversary dates of the effective date of this franchise.

(3) All periodic review sessions shall be open to the public and notice of sessions published in the official newspaper of the county.

(4) Topics which may be discussed at any review session include, but are not limited to, application of new technologies, system performance, programming offered, access channels, facilities and support, municipal tests of cable, customer complaints, compliance with FCC standards and any other topics the county and grantee(s) deem relevant.

(5) During a review by the county, grantee(s) shall fully participate and cooperate with the county and shall provide without cost such information and documents as may reasonably be requested to perform the review.

(6) As a result of any such review session, the county and the grantee(s) may agree to modify or otherwise revise the franchise, including a one-year extension as set out in Section 5.26.040.

(7) Nothing herein shall be deemed to require county to conduct periodic evaluations, reviews, and modifications. Further, nothing herein shall be deemed to create liability on the part of the county for any failures or inadequacies on the part of the cable operators/grantees apparent due to any periodic evaluation, review or certified modification made by grantees. (Res. 2005-59 (§ 4.2), 5/31/05).

5.26.190 Programming.

The county acknowledges that it is the grantee’s sole right to select the programming and cable services to be offered to subscribers, subject to applicable federal law. (Res. 2005-59 (§ 5.1), 5/31/05).

5.26.200 Leased commercial access.

Grantee(s) shall make available to the public in a manner consistent with 47 U.S.C. Section 532 and associated FCC rules and regulations, a channel or portion of a channel from the grantee’s leased capacity on the district’s system for commercial use by persons other than grantee(s), for a fee or charge. (Res. 2005-59 (§ 5.2), 5/31/05).

5.26.210 Consistent PEG programming.

Grantee shall cooperate with other cable providers in the county and the surrounding area to make feeds available to and/or receive feeds from such other cable systems at mutually agreeable locations, where economically and technologically feasible, in order to facilitate the receipt or distribution of programming for public, educational and governmental access programming on a local and regional basis. (Res. 2005-59 (§ 6.1), 5/31/05).

5.26.220 Drops to public buildings.

(a) Grantee(s) shall provide, through its agreement with the district, installation of at least one cable drop, and one outlet, over which the grantee(s) shall provide monthly basic cable service, without charge, to nonresidential public buildings specified by the county, where the drop does not exceed two hundred feet. All accredited schools shall also receive one cable drop and one outlet and basic commercial service at no charge, subject to the above two-hundred-foot limit. “Basic commercial service” shall be defined as “basic service” without any set top box or digital programming provided through such equipment. The location of such cable drops and outlets shall be determined in cooperation with the management of the building to which the connection is to be made. Following the county’s designation of additional public building(s) to receive cable service, grantee(s) shall work with the district to ensure the complete construction of the drop and outlet within one hundred eighty days if the county requests construction, weather permitting and subject to payment of the district’s direct incremental costs of installation in excess of two hundred feet. Drops and outlets that are in addition to the one free drop and outlet required by this section shall be provided per its agreement with the district, at the district’s direct incremental cost. Alternatively, at a governmental entity’s request, the governmental entity may add outlets at its own expense, as long as such installation meets the district’s standards, which shall be made readily available to any public entity upon request. Additional outlets and services to public buildings are subject to the applicable commercial rate.

(b) All such cable service outlets shall not be utilized for commercial purposes. The county shall take reasonable precautions to prevent any use of the district’s broadband system in any inappropriate manner or that may result in loss or damage to the system. Users of such outlets shall hold the grantee(s) harmless from any and all liability or claims arising out of their use of such outlets, other than for those claims arising out of improper installation or faulty grantee owned equipment.

(c) In instances where the drop line from the feeder cable to the public building, school or library exceeds two hundred feet, grantee(s) on behalf of the district may charge for its direct incremental costs that are incurred in exceeding this length. The grantee(s) on behalf of the district may require advance payment of this cost. (Res. 2005-59 (§ 6.2), 5/31/05).

5.26.230 Emergency override.

Grantee shall at all times coordinate with the county and the district in order to ensure that the districts’ broadband system provides capabilities to comply with the FCC’s emergency alert system rules and regulations, and that the county has the ability to insert emergency information and instructions on the system to be provided to cable subscribers. The county shall hold the grantee and the district and their respective agents, employees, officers and assigns harmless from any claims arising out of the emergency use of the facilities by the county. (Res. 2005-59 (§ 6.3), 5/31/05).

5.26.240 Construction and service provisions—Obligations of district.

The county and the grantee(s) recognize and agree that the grantee(s) intend to provide cable service utilizing the fiber optic transport facilities of the district’s broadband system and therefore the grantee(s) will have no direct control over the installation, operation or maintenance of the physical facilities located within the county’s right-of-way. In order to meet the county’s construction and operational requirements the grantee(s) agrees to include within its use or license agreement with the district service level provisions and obligations, including compliance with all applicable FCC technical standards, as set out in Sections 4 and 5 of the district’s communications infrastructure right-of-way use agreement. The grantee(s) agrees that the failure of the district to reasonably meet these standards will constitute a default of this franchise subject to the remedial provisions of this franchise. (Res. 2005-59 (§ 7.1), 5/31/05).

5.26.250 Construction and service provisions—Construction schedule.

It is understood and agreed by the parties that construction of the district’s broadband system is subject to the budget and planning process of the district. (Res. 2005-59 (§ 7.2), 5/31/05).

5.26.260 Construction and service provisions—Customer service standards.

The grantee(s) shall at all times comply will all applicable FCC customer service standards. To the extent that specific customer service standards require the district to perform work on its broadband system, such as responding to and remedying service disruptions, the grantee(s) agrees to include within its use or license agreement with the district service level provisions and obligations that would require compliance with such standards, as set out in Section 5 of the district’s communications infrastructure right-of-way use agreement. The grantee(s) agrees that the failure of the district to reasonably meet these standards will constitute a default of this franchise subject to the remedial provisions of this franchise. (Res. 2005-59 (§ 7.3), 5/31/05).

5.26.270 Construction and service provisions—Rate changes.

Subscribers will be given thirty days’ advance notice of any changes in rates, programming services, or channel positions, if the change is within the control of the grantee. All such notice shall be provided in writing by any reasonable means. Notwithstanding the foregoing or any provision of this franchise to the contrary, the grantee shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax assessment, or charge of any kind imposed by any government entity on the transaction between the grantee and the subscriber. (Res. 2005-59 (§ 7.4), 5/31/05).

5.26.280 Franchise regulation.

This franchise shall be subject to regulation by county in accordance with the Cable Act and the county’s lawful police powers. (Res. 2005-59 (§ 8.1), 5/31/05).

5.26.290 Review of books and records.

The grantee(s) agree that the county may review such grantee books and records, during normal business hours and on a nondisruptive basis, as are reasonably necessary to monitor compliance with the terms hereof. Such records shall include any public records required to be kept by the grantee(s) pursuant to the rules and regulations of the FCC. Notwithstanding anything to the contrary set forth herein, grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. The county agrees to treat any information disclosed by the grantee(s) to it as confidential and only to disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof, subject to public disclosure law. (Res. 2005-59 (§ 8.2), 5/31/05).

5.26.300 Transfer or sale.

(a) The grantee(s) shall not sell, transfer, lease, assign, sublet, or dispose of, in whole or in part, an interest in or control of this cable franchise without prior written request by the grantee(s) to the county commission and the prior consent of the county, which consent shall not be unreasonably denied or delayed and may be denied only upon a good faith finding by the county that the proposed transferee lacks the legal, technical, or financial qualifications to consummate the transaction and provide cable service so as to perform its obligations under the cable franchise. This section shall not apply to sales of property or equipment in the normal course of business. Consent from the county shall not be required for a transfer in trust, mortgage, or other instrument of hypothecation, in whole or in part, to secure any indebtedness, or for a pro forma transfer to a corporation, partnership, or other entity controlling, controlled by, or under common control with a grantee(s).

(b) In the case of any sale or transfer of ownership of an interest in or control of this cable franchise, the county shall have one hundred twenty days to act upon any request for approval of such sale or transfer that contains or is accompanied by such information as is required in accordance with FCC regulations and the requirements of this code. If the county fails to render a final decision on the request within one hundred twenty days after receipt by the county of all required information, such request shall be deemed granted unless the requesting party and the county agree to an extension of the one-hundred-twenty-day period. (Res. 2005-59 (§ 8.3), 5/31/05).

5.26.310 Force majeure.

In the event a grantee’s performance of any of the terms, conditions, obligations or requirements of this franchise is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof. Such causes beyond a grantee’s reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God, civil emergencies and labor unrest or strikes, severe weather, unavailability of equipment or facilities during the initial construction of the district’s broadband system, untimely delivery of equipment, or the inability of a grantee to obtain access to an individual’s property. (Res. 2005-59 (§ 8.4), 5/31/05).

5.26.320 Severability.

If any material section, sentence, phrase, provision, paragraph or term of this franchise is held void or otherwise rendered unenforceable by any court of competent jurisdiction, such provision shall be deemed severable from this franchise, and the remainder of this franchise shall continue in full force and effect. (Res. 2005-59 (§ 8.5), 5/31/05).

5.26.330 Acceptance.

Each grantee shall, within ten days after the final passage and approval of the resolution codified in this chapter, file with the county clerk of the county its acceptance in writing of the provisions, terms and conditions of this resolution, in the form as set forth on Exhibit A attached to the resolution codified in this chapter, which Exhibit A may be signed in counterparts, each of which shall be an original but all of which shall constitute one and the same document, but such counterpart shall not constitute or imply any joint and several liability of grantees hereunder. If a grantee shall fail to so file its written acceptance of the same within such period, then the rights and privileges granted hereunder shall be deemed forfeited and null and void with respect to that particular grantee. (Res. 2005-59 (§ 8.6), 5/31/05).

5.26.340 Conflicts.

In the event of any conflict between the terms and conditions of this franchise and the provisions of county codes and resolutions, the terms and conditions of this franchise shall control. (Res. 2005-59 (§ 8.7), 5/31/05).