Chapter 5.32 FALCON/CHARTER COMMUNICATIONS CABLE SERVICE FRANCHISE

For the purpose of this grant of franchise the following terms, phrases, words and their derivations shall have the meaning ascribed to them in the Cable Communications Policy Act of 1984, as amended from time to time (the “Cable Act”), unless otherwise defined 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, and words in the singular number include the plural number. The word “shall” is mandatory and “may” is permissive. Words not defined shall be given their common and ordinary meaning.

(1) “Board” means the board of Chelan County commissioners.

(2) “Cable Act” means the Cable Communications Policy Act of 1984, as amended, 47 U.S.C. Section 521, et seq.

(3) “Cable system,” “cable service,” and “basic cable service” shall be defined as set forth in the Cable Act.

(4) “County engineer” means the Chelan County engineer or the county engineer’s designee.

(5) “Facilities” means the physical components of the grantee’s cable system including transmission lines, equipment, poles and other structures.

(6) “FCC” means the Federal Communications Commission and any successor governmental entity thereto.

(7) “Franchise” or “cable service franchise” means the nonexclusive rights granted pursuant to this franchise to construct, operate and maintain a cable system along the county rights-of-way within all or a specified area in the service area.

(8) “Franchise fee” means any tax, fee, or assessment of any kind imposed by the grantor on grantee or subscriber, or both, solely because of its status as such. The term “franchise fee” does not include: (A) 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); (B) capital costs that are required by this franchise agreement to be incurred by grantee for governmental access, equipment and facilities; (C) requirements or charges incidental to the awarding or enforcing of this franchise, including payments for insurance, indemnification, penalties; or (D) any fee imposed under Title 17 of the United States Code.

(9) “Grantee” means Falcon Video Communications, L.P., locally known and doing business in Chelan County as “Charter Communications.”

(10) “Grantor,” “franchising authority,” “Chelan County,” or “county” means Chelan County, state of Washington, and its board of county commissioners, as the meaning may be reasonably interpreted in the context of the use.

(11) “Gross revenues” shall mean all revenues, as determined in accordance with Generally Accepted Accounting Principles (GAAP), actually received by grantee from subscribers residing within the service area for cable services purchased by such subscribers on a regular, recurring monthly basis. Gross revenues shall not include (A) revenues received from advertising carried on the cable system; (B) any taxes, fees or assessments of general applicability, such as the franchise fee, utility fee and the FCC user fee; (C) bad debt; (D) credits, refunds and deposits paid to subscribers; (E) any exclusions available under applicable state law.

(12) “Ordinance” as used herein means a chapter or section of Chelan County Code.

(13) “Person” means an individual, partnership, proprietorship, association, organization, corporation, trust or governmental entity.

(14) “Rights-of-way” or “right-of-way” means the surface of and space above and below each of the following located within the service area: public streets, roadways, highways, freeways, bridges, land paths, boulevards, parkways, ways, avenues, lanes, alleys, sidewalks, circles, drives, easements, rights-of-way and similar public ways and extensions and additions thereto, including but not limited to public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses now or hereafter held by the grantor in the service area, which shall entitle the grantee to the use thereof for the purpose of installing, operating, repairing and maintaining the cable system.

(15) “Service area” or “franchise area” means the geographic area within the municipal boundaries of Chelan County, Washington, excluding incorporated municipalities, as it is now constituted or may in the future be constituted, subject to the exception in Article V of this chapter.

(16) “State” means the state of Washington.

(17) “Subscriber” means any person lawfully receiving cable service in the service area from the grantee and who does not further distribute it. (Res. 2013-15 § 1.1, 1/29/13).

Article II. Grant of Franchise

5.32.020 Grant of franchise.

Grantor hereby grants to the grantee a nonexclusive franchise which authorizes the grantee to erect, construct, operate and maintain in, upon, along, across, above, over and under the grantor’s rights-of-way within the boundaries of the unincorporated Chelan County, Washington, now in existence and as may be created or later established during the term of this franchise, any poles, wires, cable, underground conduits, manholes, and other conductors and fixtures necessary for the maintenance and operation of a cable system. Nothing in this franchise shall be construed to prohibit the grantee from offering any service over its cable system that is not prohibited by federal, state or local law. (Res. 2013-15 § 2.1, 1/29/13).

5.32.030 Term of franchise.

The franchise and the rights, privileges and authority hereby granted shall be for a term of ten years, commencing on the effective date of this franchise. Grantee shall have the option to renew this franchise for an additional term of five years; provided, that grantee is in substantial compliance with the material terms of this agreement at the time of its expiration. Grantee shall notify grantor in writing of grantee’s intent to exercise its option to renew at least six months prior to expiration of this franchise agreement. (Res. 2013-15 § 2.2, 1/29/13).

5.32.040 Procedures for franchise renewal.

Proceedings undertaken by the parties that relate to the renewal of the franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, or any successor statute. (Res. 2013-15 § 2.3, 1/29/13).

5.32.050 Franchise transfer.

The franchise granted hereunder shall not be assigned, other than to an entity controlling, controlled by, or under common control with the grantee, without the prior consent of the grantor, such consent not to be unreasonably withheld or delayed. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of the grantee in the franchise or cable system to secure indebtedness. Within thirty days of receiving a request for transfer, the grantor shall notify the grantee in writing of any additional information it reasonably requires to determine the legal, financial and technical qualifications of the transferee. If the grantor has not taken action on the grantee’s request for transfer within one hundred twenty days after receiving such request, consent by the grantor shall be deemed given. (Res. 2013-15 § 2.4, 1/29/13).

5.32.060 Grantor’s police powers and conflicts with franchise.

(1) The grantee shall comply with the terms of any lawfully adopted generally applicable ordinance, to the extent that the provisions of the ordinance do not have the effect of limiting the benefits or expanding the obligations of the grantee that are granted by this franchise. This franchise is a contract and except as to those changes which are the result of the grantor’s lawful exercise of its general police power, the grantor may not take any unilateral action which materially changes the explicit mutual promises in this contract. Any changes to this franchise must be made in writing signed by the grantee and the grantor.

(2) In the event of any conflict between the terms and conditions of this franchise and the provisions of Chelan County Code and resolutions, the terms and conditions of this franchise shall control, except grantee’s rights shall be subject to the police powers of the grantor to adopt and enforce resolutions necessary to the health, safety, and welfare of the public. Grantee shall comply with all applicable general laws and resolutions enacted by the county pursuant to that police power. (Res. 2013-15 § 2.5, 1/29/13).

Article III. Approval of Grantee by Grantor

5.32.070 Substantial compliance.

The grantor finds that the grantee has substantially complied with the material terms of the current franchise under applicable laws, and that the financial, legal and technical ability of the grantee is sufficient to provide services, facilities and equipment necessary to meet the future cable-related needs of the community. (Res. 2013-15 § 3.1, 1/29/13).

5.32.080 Grantee requests grant of franchise.

Grantee desires and has requested a grant of franchise for a cable system in the service area. (Res. 2013-15 § 3.2, 1/29/13).

5.32.090 Grantor agrees to grant of franchise.

Having afforded the public adequate notice and opportunity for comment, grantor desires to enter into this franchise with the grantee for the construction and operation of a cable system on the terms set forth herein. (Res. 2013-15 § 3.3, 1/29/13).

5.32.100 Compliance with requirements.

The grantor and grantee have complied with all federal and state-mandated procedural and substantive requirements pertinent to this franchise renewal. (Res. 2013-15 § 3.3, 1/29/13).

Article IV. Indemnification and Insurance

5.32.110 Indemnification and hold harmless.

By acceptance of the franchise granted herein, the grantee shall, at its sole cost and expense, defend the grantor, its officers, boards, commissions, agents, and employees for all claims for injury to any person or property caused by the negligence of grantee in the construction or operation of the cable system and shall indemnify and hold grantor, its officers, boards, commissions, agents, and employees harmless from any and all liabilities, claims, demands, or judgments growing out of any injury to any person or property as a result of the negligence of grantee; provided, that the grantor shall give the grantee written notice of its obligation to indemnify the grantor within sixty days of presentation of any claim covered by this section to the grantor or within ten days of service upon the grantor of any action, suit, or proceeding covered by this section. In the event any such claim, action, suit, or proceeding arises, the grantor shall tender the defense thereof to the grantee and the grantee shall have the right to defend, settle or compromise any claims arising hereunder and the grantor shall cooperate fully herein. Notwithstanding the foregoing, the grantee shall not be obligated to indemnify the grantor for any damages, liability or claims resulting from the willful misconduct or negligence of the grantor or for the grantor’s use of the cable system. In the event that the grantee declines grantor’s tender of defense, the grantee shall take all steps necessary to protect the grantor from default, shall accept or decline the tender of defense within sixty days of receipt of written notice from the grantor, and if grantee declines such defense, grantee shall nonetheless cooperate fully with the grantor in the grantor’s defense. (Res. 2013-15 § 4.1, 1/29/13).

5.32.120 Insurance.

(1) The grantee shall maintain throughout the term of the franchise policies of insurance in amounts at least as follows:


Workers’ Compensation	Statutory Limits
Commercial General Liability	$1,000,000 per occurrence, Combined Single Liability (C.S.L.) $2,000,000 General Aggregate
Auto Liability including coverage on all owned, non-owned hired autos	$1,000,000 per occurrence C.S.L.
Umbrella Liability	$1,000,000 per occurrence C.S.L.

(2) All of the insurance required of grantee by this franchise shall be endorsed to include the grantor as an additional insured for claims arising out of work performed by grantee, to the above commercial general liability, auto liability and umbrella liability insurance coverage.

(3) Upon request by the grantor, the grantee shall furnish the grantor with current certificates of insurance evidencing such coverage within fourteen days of such request. Grantee’s insurance carriers shall endeavor to provide thirty days’ prior written notice of policy cancellation to the grantor. Cancellation notice will be provided for any reason other than nonpayment of premium, provided grantor has notified grantee of any change of address pursuant to Section 5.32.590. (Res. 2013-15 § 4.2, 1/29/13).

Article V. Service Obligations

5.32.130 No discrimination.

Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, employees, or general citizens on the basis of race, color, religion, national origin, age, sex, marital status, or other classes of persons protected from discrimination by federal or state law. (Res. 2013-15 § 5.1, 1/29/13).

5.32.140 Privacy.

The grantee shall fully comply with the privacy rights of subscribers as contained in Cable Act Section 631 (47 U.S.C. Section 551). (Res. 2013-15 § 5.2, 1/29/13).

5.32.150 Service area.

The grantee shall make cable service distributed over the cable system available to every residence within the service area where there is a minimum density of at least thirty residences per linear strand mile of cable (excluding any home subscribing to any satellite service) as measured from grantee’s closest trunk line or distribution cable that is actively delivering cable service as of the date of such request for service. If such residence is located within one hundred twenty-five feet of grantee’s feeder cable, the cable service will be provided at grantee’s published rate for standard installations. Grantee shall not be obligated to provide cable service to any area which is financially or technically infeasible. (Res. 2013-15 § 5.3, 1/29/13).

5.32.160 Subscriber charges for extensions of the cable system.

Grantee shall not arbitrarily refuse service to any subscriber. However, if an area does not meet the density requirements of Section 5.32.150, the grantee shall only be required to extend the cable system to subscribers in that area if the subscribers are willing to share the capital costs of extending the cable system. The grantee may require that payment of the capital contribution in aid of construction borne by such potential subscribers be paid in advance. Subscribers shall also be responsible for any standard/nonstandard installation charges to extend the cable system from the tap to the residence. (Res. 2013-15 § 5.4, 1/29/13).

Article VI. Construction and Technical Standards

5.32.170 Compliance with codes.

All construction practices and installation of equipment shall be done in accordance with all applicable sections of the National Electric Safety Code. (Res. 2013-15 § 6.1, 1/29/13).

5.32.180 Construction standards and requirements.

Grantee’s plant and equipment, within the county, including but not limited to the antenna site, head-end and distribution system, towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances, shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices and performed by experienced maintenance and construction personnel. (Res. 2013-15 § 6.2, 1/29/13).

5.32.190 Safety.

The grantee shall at all times employ ordinary care and shall use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage. (Res. 2013-15 § 6.3, 1/29/13).

5.32.200 Network technical requirements.

The cable system shall be designed, constructed and operated by the grantee to meet the technical standards adopted by the FCC relating to cable systems contained in Part 76 of the FCC’s rules and regulations as may, from time to time, be amended. (Res. 2013-15 § 6.4, 1/29/13).

5.32.210 Performance monitoring.

Grantee shall test the cable system consistent with the FCC regulations. (Res. 2013-15 § 6.5, 1/29/13).

5.32.220 Customer service standards.

The grantee shall at all times comply will all applicable FCC customer service standards. (Res. 2013-15 § 6.6, 1/29/13).

Article VII. Conditions of Right-of-Way Occupancy

5.32.230 General conditions.

The grantee acknowledges that the grantor desires to promote a policy of coordination and cooperation among franchisees in the grantor’s right-of-way and agrees to make a good-faith effort to coordinate and share excavations or poles with other franchisees with facilities in the vicinity upon such terms as may be agreed between franchisees and satisfactory to the grantor; provided, that such sharing between or among franchisees shall not interfere with, hinder, or delay any grantor construction project or maintenance. (Res. 2013-15 § 7.1, 1/29/13).

5.32.240 Underground construction.

The grantee’s facilities shall be installed underground in those parts of the service area where existing cable, telephone, municipal utilities, broadband systems or electric services are underground at the time of system construction. In areas where cable, telephone, municipal utilities, broadband systems or electric utility facilities are installed aerially at the time of system construction, the grantee may install its similar facilities aerially with the understanding that at such time as the existing aerial facilities are required to be placed underground by the grantor, the grantee shall likewise place its facilities underground. In the event that cable, telephone, municipal utilities, broadband systems or electric utilities are reimbursed by the grantor or any agency for the placement of cable underground or the movement of cable, grantee shall be reimbursed upon the same terms and conditions as such other utilities to the extent that such terms, conditions, and reimbursement are authorized by and allowable to the grantee under state or federal law. (Res. 2013-15 § 7.2, 1/29/13).

5.32.250 Construction codes and permits.

Grantee shall obtain all legally required permits before commencing any work requiring a permit, including the opening or disturbance of grantor’s right-of-way within the service area. The grantor shall cooperate with the grantee in granting any permits required, providing such grant and subsequent construction by the grantee shall not unduly interfere with the use of grantor’s right-of-way and shall not require closure of any county road for any period, except as specifically authorized by permit or reasonably required in an emergency. The grantee shall adhere to all building and zoning codes currently or hereafter applicable to construction, operation or maintenance of the cable system in the service area; provided, that such codes are of general applicability and such codes are uniformly and consistently applied by the grantor as to other public utility companies and other entities operating in the service area. (Res. 2013-15 § 7.3, 1/29/13).

5.32.260 System construction.

All grantee’s transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with roads, public facilities, other utilities, and the rights and reasonable convenience of property owners, and at all times shall be kept and maintained in a safe, adequate and substantial condition and in good order and repair. The grantee shall, at all times, employ ordinary care and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Traffic control shall be conducted in conformity and in compliance with the current Manual of Uniform Traffic Control Devices (MUTCD), as adopted and modified, or as later amended, by the state of Washington. Suitable barricades, flags, lights, flares or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures and facilities placed in the right-of-way by the grantee shall be placed in a manner that does not to interfere with the usual travel on such public right-of-way, with public facilities, or with public or private utilities, and shall be installed in compliance with Washington State Department of Transportation clear zone standards. (Res. 2013-15 § 7.4, 1/29/13).

5.32.270 Notices to grantor of construction, relocation, or emergency work.

(1) Grantee shall provide at least thirty days’ notice to the county engineer in advance of grantee’s construction or relocation of its equipment or facilities in grantor’s right-of-way. Grantee may at any time make a request to the county engineer to waive the thirty-day notice requirement of this section for specific work for which the thirty-day notice requirement may create an undue delay, or result in a lost opportunity for the grantee, and for which the grantee could not reasonably provide the required thirty-day notice to the grantor. The grantor and grantee agree that new service requests are a reasonable basis for waiver of the thirty-day notice requirement. Grantor agrees that such waiver shall not be unreasonably withheld.

(2) Grantee shall promptly by reasonable means and within a reasonable time notify the county engineer of emergency repairs or restoration of service. Grantee shall provide notice to the county engineer of emergency repairs by reasonable means in advance of beginning the emergency work, if feasible, and shall make reasonable efforts to coordinate its emergency work with the county engineer. (Res. 2013-15 § 7.5, 1/29/13).

5.32.280 Restoration of rights-of-way.

(1) After work in, on, upon, over, under, across, along, or adjacent to grantor road right-of-way, the grantee is responsible for and will leave all grantor road rights-of-way in at least as good a condition as the rights-of-way were before any work was done. In the event of any excavation through a paved public property, grantee shall restore the paved area to a standard and condition acceptable to the county engineer. Patching methods approved by the county engineer to repair the excavation and the surface of the paving to as near the standard of the original pavement as is possible may include the use of a hot mix in-place asphalt patch or approved equal and/or the full overlay of the paved area for asphalt-paved roads, and the replacement of the affected portion of the panel to the nearest existing expansion joints for concrete-paved roads. Restoration under these circumstances shall be at grantee’s sole expense. Completion of the grantor road restoration in a manner consistent with the approved plans shall satisfy the grantee’s restoration obligations under this subsection. Standards and conditions acceptable to the county engineer shall be equally and uniformly applied to grantee as to any other person in the road rights-of-way and consistent with all applicable grantor code as it may apply to the grantor’s police powers.

(2) In the event that the grantee, its contractors, or third parties should fail to restore any grantor road right-of-way to the reasonable satisfaction of the county engineer, grantor may, after twenty days’ written notice, make such repairs or restorations as are necessary to return the grantor road rights-of-way to their pre-work condition, except if in the opinion of the county engineer, the grantee’s deficient restoration causes an emergency situation resulting in an immediate hazard to public safety, health, or property, the grantor may repair the deficiency without prior notice to the grantee. The grantee shall be responsible for reimbursing the grantor for any and all costs and expenses incurred by the grantor to correct any deficiency in the grantee’s restoration of the right-of-way, whether with notice as set out above or on an emergency basis. Upon presentation of an itemized bill for repairs or restorations, including the costs of labor and equipment, and an explanation of the basis for the grantor’s determination that emergency restoration action was required to remove an immediate hazard to public safety, health or property, the grantee shall pay the bill within thirty days. If suit is brought upon the grantee’s failure to pay for repair and restoration, and if judgment in such a suit is entered in favor of the grantor, then the grantee shall pay all of the actual costs, including interest from the date the bill was presented, disbursements, and attorneys’ fees and litigation-related costs incurred. (Res. 2013-15 § 7.6, 1/29/13).

5.32.290 Removal of grantee’s property in emergency.

Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the grantor to remove any of the grantee’s property, no charge shall be made by the grantee against the grantor for restoration and repair, unless such acts amount to gross negligence by the grantor. (Res. 2013-15 § 7.7, 1/29/13).

5.32.300 Relocation of grantee’s property for grantor.

(1) The grantee shall, upon receipt of reasonable advance written notice, to be not less than ten business days, protect, support, temporarily disconnect, relocate, or remove any property of grantee when lawfully required by the grantor pursuant to its police powers. Grantee shall be responsible for any costs associated with these obligations to the same extent all other users of the grantor rights-of-way are responsible for the costs related to the relocation of their facilities.

(2) If funds are available to reimburse any person using the rights-of-way for the purpose of defraying the cost of any of the foregoing, the grantor shall reimburse the grantee in the same manner in which other persons affected by the requirement are reimbursed insofar as funds are lawfully authorized for reimbursement to a cable service franchisee. If the funds are controlled by another governmental entity, the grantor shall make application for such funds on behalf of the grantee. (Res. 2013-15 § 7.8, 1/29/13).

5.32.310 Relocation of grantee’s property for a third party.

The grantee shall, on the request of any person holding a lawful permit issued by the grantor, protect, support, raise, lower, temporarily disconnect, relocate in or remove from the right-of-way as necessary any property of the grantee; provided, that the expense of such is paid by any such person benefiting from the relocation and the grantee is given reasonable advance written notice to prepare for such changes. The grantee may require such payment in advance. For purposes of this subsection, “reasonable advance written notice” shall be no less than ten business days in the event of a temporary relocation and no less than one hundred twenty days for a permanent relocation. (Res. 2013-15 § 7.9, 1/29/13).

5.32.320 Tree trimming.

Grantee may, at its own expense and risk, trim trees or other natural vegetation growth over its cable system on grantor’s right-of-way as may be necessary to protect grantee’s wires and other facilities. Grantee shall be responsible to either reasonably compensate the grantor for damages caused by trimming trees or other natural vegetation on grantor’s rights-of-way or, at grantee’s own cost and expense, replace trees, shrubs or other vegetation damaged as a result of construction or maintenance of the grantee’s cable system. If trees or other vegetation are on land owned by any person other than the grantor, the grantee shall compensate the affected person or replace the trees, shrubs or other vegetation. Tree trimming and removal shall be in conformity with state law. (Res. 2013-15 § 7.10, 1/29/13).

5.32.330 Emergency use.

If the grantee provides an emergency alert system (“EAS”), then the grantor shall permit only appropriately trained and authorized persons to operate the EAS equipment on behalf of the grantor. The grantor shall take reasonable precautions to prevent any grantor use of the grantee’s cable system that in any manner results in inappropriate use thereof, or any loss or damage to the cable system. The grantor shall hold the grantee, its employees, officers and assigns harmless from any claims or costs arising out of the use of the EAS of by the grantor or persons authorized by grantor to make such use. This hold harmless includes reimbursement of reasonable attorneys’ fees and costs, if any. (Res. 2013-15 § 7.11, 1/29/13).

5.32.340 Discontinued or abandoned facilities.

In the event that the use of all or any part of the cable system is discontinued due to discontinuance, obsolescence, abandonment or relocation of the facility, grantee is solely responsible for the removal and proper disposal of the abandoned/surplus system facilities and grantee shall restore the right-of-way from which such facilities have been removed to the same or equal conditions as before the system was placed. Grantee is not entitled to abandon any facilities in place without the grantor’s prior express agreement and written consent. (Res. 2013-15 § 7.12, 1/29/13).

5.32.350 Hazardous conditions.

(1) Whenever the grantor determines that any conditions or operations caused by any activity covered by this franchise agreement have become a hazard to life and limb, endanger property or public resources, or adversely affect the safety, use, or stability of a right-of-way or drainage channel, the grantor shall notify the grantee in writing of the right-of-way upon which the condition or operation is located and direct it to repair or eliminate such condition or operation within the period specified thereon so as to eliminate the hazard and be in conformance with the requirements of this franchise agreement.

(2) Should the grantor have reasonable cause to believe that the situation is so adverse as to preclude written notice, the grantor may take the measures necessary to eliminate the hazardous situation; provided, that the grantor shall first make a reasonable effort to notify the grantee before acting. In such instance, the entity responsible for the creation of this situation shall be responsible for the payment of any reasonable costs incurred.

(3) If costs are incurred and the hazardous situation has been created in conjunction with or as a result of an operation for which a bond has been posted pursuant to grantor authority, the grantor shall have the authority to forfeit the bond or other security to recover the costs incurred. (Res. 2013-15 § 7.13, 1/29/13).

5.32.360 Bonds and other financial assurance.

Except as expressly provided herein, grantee shall not be required to obtain or maintain bonds or other assurance as a condition of being awarded the franchise or continuing its existence. The grantor acknowledges that the legal, financial and technical qualifications of grantee are sufficient to afford compliance with the terms of the franchise and the enforcement thereof. Grantee and grantor recognize that the costs associated with bonds and other assurance may ultimately be borne by the subscribers in the form of increased rates for cable services. In order to minimize such costs, the grantor agrees to require bonds and other assurance only in such amounts and during such times as there is a reasonably demonstrated need therefor. Grantor agrees that in no event, however, shall it require a bond or other assurance 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 assurance will be required. In the event that one is required in the future, the grantor agrees to give grantee 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. 2013-15 § 7.14, 1/29/13).

5.32.370 Communications for routine and emergency matters.

Routine and emergency operational and planning functions should ordinarily be addressed between the grantee’s local representative and the grantor’s county engineer. Each party shall keep current its contact information for emergency and routine matters hereunder. (Res. 2013-15 § 7.15, 1/29/13).

Article VIII. Service and Rates

5.32.380 Toll-free phone number for customer service.

The grantee shall maintain a toll-free telephone number and a phone service operated such that complaints and requests for repairs or adjustments may be received at any time. (Res. 2013-15 § 8.1, 1/29/13).

5.32.390 Notification of service procedures.

The grantee shall furnish each subscriber at the time service is installed written instructions that clearly set forth information concerning the procedures for making inquiries or complaints, including the grantee’s name, address and local telephone number. Grantee shall give the grantor thirty days’ prior notice of any rate increases, channel lineup or other substantive service changes. All such notice shall be provided in writing by any reasonable means. Notwithstanding the foregoing or any provision of this franchise to the contrary and except as required by applicable law or regulation, 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. 2013-15 § 8.2, 1/29/13).

5.32.400 Rate regulation.

Grantor shall have the right to exercise rate regulation to the extent authorized by law, or to refrain from exercising such regulation for any period of time, at the sole discretion of the grantor. If and when exercising rate regulation, the grantor shall abide by the terms and conditions set forth by the FCC. (Res. 2013-15 § 8.3, 1/29/13).

5.32.410 Continuity of service.

It shall be the right of all subscribers to continue receiving cable service insofar as their financial and other obligations to the grantee are honored, and subject to grantee’s rights under Article XII of this chapter. (Res. 2013-15 § 8.4, 1/29/13).

5.32.420 Programming.

The grantor acknowledges that it is the grantee’s sole right to select the programming and cable services to be offered to subscribers. (Res. 2013-15 § 8.5, 1/29/13).

5.32.430 Commercial access.

Grantee 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 for commercial use by persons other than grantee, for a fee or charge. (Res. 2013-15 § 8.6, 1/29/13).

Article IX. Franchise Fee

5.32.440 Franchise fee.

Grantee shall pay to the grantor an annual franchise fee in an amount equal to five percent of the annual gross revenue. Such payment shall be in addition to taxes of general applicability owed to the grantor by the grantee that are not included as franchise fees under federal law. Franchise fees may be passed through to subscribers as a line item on subscriber bills or otherwise as grantee chooses, consistent with federal law. The identity of the grantor to whom the franchise fee is paid shall be shown on each subscriber bill. (Res. 2013-15 § 9.1, 1/29/13).

5.32.450 Payment.

Payment of the franchise fee due the grantor shall be made on an annual basis consistent with federal law. Notwithstanding the above, grantee agrees to pay franchise fees to the grantor on a prepaid quarterly basis, within forty-five days of the close of each calendar quarter and transmitted by electronic funds transfer to a bank account designated by grantor. The sum of the franchise fees paid during the term of this franchise may not exceed the amount, including the time value of money, which would have lawfully been collected if such fees had been paid per annum. The payment period and the collection of the franchise fees that are to be paid to the grantor pursuant to the franchise shall commence sixty days after the effective date of the franchise. Grantee shall continue to make franchise fee payments under the terms of the former franchise during the interim period. The payment of franchise fees shall be either accompanied by or closely followed by a statement of said payment, reflecting the gross revenues and the applicable charges. In lieu of a franchise fee audit, which is costly for the grantor, grantee shall provide, upon request, a statement certified by grantee’s representative as to the accuracy of the franchise fee payments. (Res. 2013-15 § 9.2, 1/29/13).

5.32.460 Accord and satisfaction.

No acceptance of any payment by the grantor shall be construed as a release or as an accord and satisfaction of any claim the grantor may have for additional sums payable as a franchise fee under this franchise. (Res. 2013-15 § 9.3, 1/29/13).

5.32.470 Limitation on recovery.

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 was due. (Res. 2013-15 § 9.4, 1/29/13).

Article X. Records, Reports and Maps

5.32.480 Reports required.

The grantee’s schedule of charges, contract or application forms for regular subscriber service, policy regarding the processing of subscriber complaints, delinquent subscriber disconnect and reconnect procedures and any other terms and conditions adopted as the grantee’s policy in connection with its subscribers shall be filed with the grantor upon request. (Res. 2013-15 § 10.1, 1/29/13).

5.32.490 Records required.

The grantee shall at all times maintain:

(1) A record of all written complaints received regarding interruptions or degradation of cable service shall be maintained for one year; and

(2) A full and complete set of plans, records and strand maps showing the location of the cable system. (Res. 2013-15 § 10.2, 1/29/13).

5.32.500 Inspection of records.

Grantee shall permit any duly authorized representative of the grantor, upon receipt of advance written notice, to examine during normal business hours and on a nondisruptive basis any and all records that are legally permissible for release and that are reasonably necessary to ensure grantee’s compliance with the franchise. Such notice shall specifically reference the subsection of the franchise that is under review so that the grantee may organize the necessary books and records for easy access by the grantor. The grantee shall not be required to maintain any books and records for franchise compliance purposes longer than five years, except for service complaints, which shall be kept for one year as specified above. The grantee shall not be required to provide subscriber information in violation of Section 631 of the Cable Act. The grantor agrees to treat as confidential any books, records or maps that constitute proprietary or confidential information to the extent grantee makes the grantor aware of such confidentiality. If the grantor believes it must release any such confidential books or records in the course of enforcing this franchise, or for any other reason, it shall advise grantee in advance so that grantee may take appropriate steps to protect its interests. Until otherwise ordered by a court or agency of competent jurisdiction, the grantor agrees that, to the extent permitted by state and federal law, it shall deny access to any of grantee’s books and records marked confidential, as set forth above, to any person. The grantor, its agents, employees, representatives or any other person who has access to records provided by the grantee to the grantor shall sign grantee’s nondisclosure agreement prior to records review; provided, that such nondisclosure agreement does not violate federal or state law or the order of any court or agency of competent jurisdiction. (Res. 2013-15 § 10.3, 1/29/13).

Article XI. Enforcement or Revocation

5.32.510 Notice of violation.

If the grantor believes that the grantee has not complied with the terms of the franchise, the grantor shall first informally discuss the matter with grantee. If these discussions do not lead to resolution of the problem, the grantor shall notify the grantee in writing of the exact nature of the alleged noncompliance (the “violation notice”). (Res. 2013-15 § 11.1, 1/29/13).

5.32.520 Grantee’s right to cure or respond.

The grantee shall have thirty days from receipt of the notice of violation to (1) respond to the grantor, contesting the assertion of noncompliance, or (2) to cure such default, or (3) if, by the nature of default, such default cannot be cured within the thirty-day period, initiate reasonable steps to remedy such default and notify the grantor of the steps being taken and the projected date that they will be completed. (Res. 2013-15 § 11.2, 1/29/13).

5.32.530 Public hearing and appeal.

(1) If the grantee fails to respond to the notice of violation from the grantor, or if the default is not remedied within the cure period set forth above, the board shall schedule a public hearing to investigate the default. The public hearing shall be held at the next regular scheduled board meeting which is scheduled at a time no less than twenty business days following the expiration of the period for cure. The grantor shall provide the grantee at least twenty days’ prior written notice of such hearing, which specifies the time, place and purpose of such hearing. The notice for public hearing shall be published by the clerk of the grantor in a newspaper of general notice pursuant to Section 5.32.600. The grantee shall have the right to present evidence and to question witnesses at the hearing. The board shall determine if the grantee has committed a violation and shall make written findings of fact relative to its determination.

(2) If a violation is found, not later than thirty days of the date of the grantor’s decision, the grantee may appeal the board’s decision before any competent tribunal having jurisdiction over such matters. Any action by the grantor on grantee’s default shall be stayed pending final resolution of the appeal process.

(3) Notice costs for the public hearing shall be borne by the nonprevailing party. (Res. 2013-15 § 11.3, 1/29/13).

5.32.540 Enforcement.

Subject to applicable federal and state law, in the event the grantor, after the hearing set forth in Section 5.32.530, determines that the grantee is in default of any provision of the franchise, the grantor may:

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

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

(3) In the case of a substantial default of a material provision of the franchise, seek to revoke the franchise itself in accordance with Section 5.32.550. (Res. 2013-15 § 11.4, 1/29/13).

5.32.550 Revocation.

(1) Prior to revocation or termination of the franchise, the grantor shall give written notice to the grantee of its intent to revoke the franchise on the basis of a pattern of noncompliance by the grantee, including one or more instances of substantial noncompliance with a material provision of the franchise. The notice shall set forth the exact nature of the noncompliance. The grantee shall have sixty days from such notice to either object in writing and to state its reasons for such objection and provide any explanation or to cure the alleged noncompliance. If the grantor has not received a satisfactory response from grantee, it may then seek to revoke the franchise at a public hearing. The grantee shall be given at least thirty days’ prior written notice of such public hearing, specifying the time and place of such hearing and stating its intent to revoke the franchise.

(2) At the hearing, the board shall give the grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the franchise shall be revoked. The public hearing shall be on the record and a written transcript shall be made available to the grantee within ten business days at grantee’s sole expense. The decision of the board shall be made in writing and shall be delivered to the grantee. The grantee may appeal such determination to a court of competent jurisdiction over such matters. Unless enjoined from doing so by a court of lawful jurisdiction, the grantee may continue to operate the cable system until all legal appeals procedures have been exhausted.

(3) Notwithstanding the above provisions, the grantee does not waive any of its rights under federal law or regulation.

(4) Upon revocation of the franchise, grantee shall remove the cable system from the grantor’s rights-of-way, or abandon the cable system in place if abandonment is allowed by the then-current grantor code or is authorized in writing by the county engineer. (Res. 2013-15 § 11.5, 1/29/13).

Article XII. Miscellaneous Provisions

5.32.560 Force majeure.

Neither party shall be held in default under or in noncompliance with the provisions of the franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of that party to anticipate and control. This provision includes work delays caused by waiting for utility providers to service or monitor their utility poles to which grantee’s cable system is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary. (Res. 2013-15 § 12.1, 1/29/13).

5.32.570 Actions of parties.

In any action by the grantor or the grantee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld. (Res. 2013-15 § 12.2, 1/29/13).

5.32.580 Equal protection.

If any other provider of cable services or video services (without regard to the technology used to deliver such services) is lawfully authorized by the grantor or by any other state or federal governmental entity to provide such services using facilities located wholly or partly in the public rights-of-way of the grantor, the grantor shall, within thirty days of a written request from grantee, modify this franchise to ensure that the obligations applicable to grantee are no more burdensome than those imposed on the other competing provider. If the grantor fails to make modifications consistent with this requirement, grantee’s franchise shall be deemed so modified thirty days after the grantee’s initial written notice. As an alternative to the franchise modification request, the grantee shall have the right and may choose to have this franchise with the grantor be deemed expired thirty days after written notice to the grantor. Nothing in this franchise shall impair the right of the grantee to terminate this franchise and, at grantee’s option, negotiate a renewal or replacement franchise, license, consent, certificate or other authorization with any appropriate government entity. (Res. 2013-15 § 12.3, 1/29/13).

5.32.590 Notices.

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 they are deposited in the 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 given, as follows. Grantee shall provide thirty days’ written notice of any changes in rates, programming services or channel positions using any reasonable written means.


If to Grantor:	With a copy to:
Clerk of the Board	County Risk Manager
Chelan County Board of Commissioners	Attn: Chelan County
400 Douglas Street	Prosecutor’s Office
Wenatchee, Washington 98801	401 Washington, Fifth Floor
	Wenatchee, WA 98801


If to Grantee:	With a copy to:
Attn: Director, Government Relations	Attn: Vice President,
Charter Communications	Government Relations
222 NE Park Plaza Drive, #231	Charter Communications
Vancouver, WA 98684	12405 Powerscourt Drive
	St. Louis, MO 63131

Each party shall be responsible to promptly notify the other in writing of any change of address. (Res. 2013-15 § 12.4, 1/29/13).

5.32.600 Public notice.

The grantor shall comply with statutory requirements for notice of any public meeting relating to this franchise and other franchises. (Res. 2013-15 § 12.5, 1/29/13).

5.32.610 Federal, state, and county jurisdiction and law—Venue.

(1) This franchise shall be construed in a manner consistent with all applicable federal and Washington State laws and grantor’s regulations under grantor’s police powers.

(2) In the event of a change in state or federal law which by its terms would require the grantor to amend this agreement, the parties shall negotiate in good faith to modify the franchise in a mutually agreed upon manner and subject to Section 5.32.620.

(3) Venue for appeal or other action shall lie in a tribunal with jurisdiction over the parties and the subject matter of this franchise; provided, that for appeals or actions under Washington law, venue shall lie in Chelan County superior court. (Res. 2013-15 § 12.6, 1/29/13).

5.32.620 Severability.

If any section, subsection, sentence, clause, phrase, or portion of this franchise is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this franchise. (Res. 2013-15 § 12.7, 1/29/13).

5.32.630 Entire agreement.

This franchise sets forth the entire agreement between the parties respecting the subject matter hereof. All agreements, covenants, representations and warranties, express and implied, oral and written, of the parties with regard to the subject matter hereof are contained herein. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any party to another with respect to the matter of this franchise. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties with respect to the subject matter hereof are waived, merged herein and therein and are superseded hereby and thereby. This agreement is executed in duplicate originals. (Res. 2013-15 § 12.8, 1/29/13).

5.32.640 Administration of franchise.

This franchise is a contract and neither party may take any unilateral action that materially changes the explicit mutual promises and covenants contained herein. Any changes, modifications or amendments to this franchise must be made in writing, signed by the grantor and the grantee. (Res. 2013-15 § 12.9, 1/29/13).

5.32.650 Effective date.

The prior franchise remains in full force and effect until the effective date of the franchise agreement herein. The franchise granted herein will take effect and be in full force from such date of acceptance by grantee recorded on the signature page of the agreement codified in this chapter. This franchise shall expire on November 15, 2022. (Res. 2013-15 § 12.10, 1/29/13).