HomeMy WebLinkAbout2002-043 Central Telecommunications East, Inc. FranchiseORDINANCE NO. 2002- 43
AN ORDINANCE granting a non-exclusive franchise to Central Telecommunications
East, Inc. ("CTE") to construct, operate and maintain a multichannel
video/cable communications system, with all necessary facilities,
within the City of Yakima, Washington (the "City"); setting forth
provisions, terms and conditions accompanying the grant of this
franchise; providing for City regulation of construction, operation,
maintenance and use of the multichannel video/cable communications
system; prescribing penalties for the violations of its provisions; and
setting an effective date.
BE IT ORDAINED BY THE CITY OF YAKIMA that a franchise is hereby granted to
Central Telecommunications East, Inc., to construct, operate and maintain a multichannel
video/cable communications system in the City of Yakima, Washington, upon the following
express terms and conditions:
SECTION 1 - DEFINITIONS
1.1 (A) Captions. Throughout this franchise, captions to sections are intended
solely to facilitate reading and to reference the sections and provisions of this franchise. The
captions shall not affect the meaning and interpretation of this franchise.
1.1 (B) Definitions. For the purposes of this franchise the following terms,
phrases, words, and their derivations shall have the meaning given herein. When not
inconsistent with the context, words used in the present tense include the future, words in the
plural number include the singular number, words in the singular number include the plural
number, and the use of any gender shall be applicable to all genders whenever the sense
requires. The words "shall" and "will" are mandatory and the word "may" is permissive.
Where a term in this franchise is not defined in this Section and there exists a definition for
the term in the Cable Communications Policy Act of 1984, Pub. Law No. 98-549, 47 U.S.0
521(Supp.) (the "Cable Act"), and/or in the Telecommunications Act of 1996, Pub. Law No.
104-104, 110 Stat. 56 (1996) (the "Telecommunications Act"), the Cable Act and/or
Telecommunications Act definition shall apply. Other terms in this franchise, which are not
defined in this Section, shall be given their common and ordinary meaning.
1.2 "Access Channel' or "Public, Educational or Government (PEG) Access
Channel" means any channel or portion of a channel utilized for programming, whether by
the multichannel video/cable operator or in cooperation with, by or through the City, where
any member of the general public or any non-commercial organization may be a programmer,
either without charge or in a non-profit manner, on a non-discriminatory basis.
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CITY OF YAKIMA
Multichannel Video/Cable Communications
System Franchise Ordinance and
Franchise with
Central Telecommunications East, Inc.
No. 2002- 43
AUGUST 6 , 2002
TABLE OF CONTENTS
Paye
SECTION 1 DEFINITIONS
1.1(A) Captions 1
1.1(B) Definitions 1
1.2 "Access Channel" or "Public, Educational, Government (PEG)
Access Channel" 1
1.3 "Access Services" or "Community Access Services" 2
1.4 "Addressability" 2
1.5 "Affiliate".. 2
1.6 "Basic Service" 2
1.7 "Cable Act" 2
1.8 "Cable Communications System," or "Cable System," or
"System," or "Multichannel Video/Cable Communications
"System"
1.9 "Cable Service," or "Multichannel Video/Cable Service," or
"Service" 2
1.10 "Channel"
1.11 "City" 3
1.12 "City Council" 3
1.13 "Community Access Channel" 3
1.14 "CTE" . 3
1.15 "Customer" 3
1.16 "Days". 3
1.17 "Downstream" 3
1.18 "Expanded Basic Service" 3
1.19 "FCC'... 3
1.20 "Franchise" 3
1.21 "Franchise Fee" 3
1.22 "Government Channel" or "Government Access Channel" 4
1.23 "Gross Revenues" 4
1.24 "Headend" 4
1.25 "Interactive Services" 4
1.26 "Interconnect" 4
1.27 "Leased Access" 5
1.28 "Multichannel Video/Cable Operator" or "Operator" 5
1.29 "Pay Service" or "Premium Service" 5
1.30 "Permittee" 5
1.31 "Permitting Authority" 5
1.32 "Person" 5
1.33 "Penalties" 5
1.34 "Right -of -Way" or "Rights -of -Way" 5
1.35 "School" 5
1.36 "Subscriber" 5
1.37 "Street". 6
1.38 "Third Party User" or "Third Party Users" 6
1.39 "Upstream Channel" 6
1.40 "WUTC" 6
1.41 "Year," "Annual" or "Annually" 6
SECTION 2 FRANCHISE
2.1 Grant of Franchise 6
2.2 Franchise Term 7
2.3 Franchise Non -Exclusive 7
2.4 Authority Granted 7
2.5 Limits on Permission 8
2.6 Franchise Service Area 9
2.7 Periodic Public Review of Franchise 9
2.8 Franchise Renewal or New Franchise 10
2.9 Renegotiation 10
2.10 Revocation 10
2.11 Right to Purchase System 11
2.12 Receivership 13
2.13 Expiration 13
2.14 Transfer of Ownership 14
2.15 Change in Control 14
2.16 No Stock to be Issued 15
2.17 Other Codes and Ordinances 15
2.18 Survival of Terms 15
SECTION 3 ENFORCEMENT AND ADMINISTRATION BY CITY
3.1 City Jurisdiction and Supervision 15
3.1.1 Areas of Administrative Authority 15
3.2 Grantee to Have No Recourse 16
3.3 Acceptance of Power and Authority of City 16
3.4 Acts Discretionary, Reservation of Authority 16
3.5 Delegation of Authority to Regulate 17
SECTION 4 OPERATION IN STREETS AND RIGHTS-OF-WAY
4.1 Use of Streets 17
4.2 Construction or Alteration 17.
4.2.1 Permits 17
4.2.2 Schedule and Maps 17
4.2.3 Good Engineering 18
4.3 Facilities Placement 18
4.3.1 General Standards 18
4.3.2 Limited Access 18
4.3.3 Consistency with Designated Use 18
4.3.4 Non -Interference 19
4.3.5 Undergrounding 19
4.4 Coordination with Other Users 19
4.5 Relocation 20
4.6 Movement of Buildings 71
4.7 Tree Trimming 21
4.8 Restoration 21
4.9 City Right to Require Removal of Property 23
4.10 Emergency Repairs ')1
4.11 City Right of Inspection 74
4.12 After -Acquired Facilities 24
4.13 Information 24
SECTION 5 SYSTEM DESIGN AND STANDARDS
5.1 Initial Multichannel Video/Cable Communications
System Construction 74
5.1.1 Construction Schedule 74
5.1.2 Construction Timeline 24
5.2 Availability of Signals and Equipment 75
5.3 Equal and Uniform Service 25
5.4 Emergency Alert Capability 75
5.5 Standby Power 75
5.6 Provision of Bi -Directional Capability 26
5.7 Interactive Services 76
5.8 Technical Standards 26
5.9 Performance Testing 76
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5.10 Line Extension Policy ?6
5.10.1 Isolated Areas 27
5.11 Right of Inspection of Construction 27
SECTION 6 CUSTOMER SERVICE POLICIES
6.1 City Reservation of Rights 27
6.2 Response to Customers 27
6.3 Complaints 27
6.4 City Franchise Contact Identified 28
6.5 Customer Service Agreement and Manual 28
6.6 Categories of Programming Service 28
6.7 Notice of Change in Services ',9
6.8 Regulation of Rates and Charges 29
6.9 Rate and Charges Discrimination Prohibited ',9
6.10 Notice of Changes in Rates and Charges 30
6.11 Continuity of Service Mandatory 30
6.12 Obscenity 30
SECTION 7 COMPENSATION AND FINANCIAL PROVISIONS
7.1 Taxes and Fees 30
7.1.1 City Occupation Tax on Utilities 30
7.1.2 Franchise Fee 31
7.1.3 Other Fees 31
7.2 Payments 31
7.3 Financial Records 32
7.4 Auditing 33
7.5 Insurance 33
7.5.1 Coverages 33
7.5.2 Proof of Insurance 34
7.5.3 Alteration of Insurance 34
7.5.4 Failure to Procure 35
7.6 Performance Bond 35
7.7 Indemnity, No Estoppel, No Duty 35
7.8 Public, Educational and Government Access Channels 36
7.9 Public and Government Access Facilities Lease Subsidy 37
7.10 Capital Grant for Public and Government Access
Equipment and Facilities 38
7.11 Return Feeds 38
SECTION 8 REPORTING REQUIREMENTS
8.1 Monthly Reports 39
8.2 Annual Reports 39
8.3 Monitoring and Compliance Reports 40
8.4 Additional Reports 40
8.5 Communication with Regulatory Agencies 40
8.6 Preservation of Confidential Information 40
SECTION 9 REMEDIES AND PROCEDURE FOR REMEDYING
FRANCHISE VIOLATIONS
9.1 Remedies for Franchise Violations 41
9.2 Procedure for Remedying Franchise Violations 41
9.2.1 Notice of Violation 41
9.2.2 CTE's Right to Cure or Respond 41
9.2.3 Public Hearing 42
9.3 Enforcement 42
9.4 Failure to Enforce 42
9.5 Acts of Nature 42
9.6 Alternative Remedies 42
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SECTION 10 MISCELLANEOUS PROVISIONS
10.1 Posting and Publication 42
10.2 Service of Notice 42
10.3 Compliance with Laws 43
10.4 Governing Law and Venue 43
10.5 Severability 43
10.6 Guarantee of Performance 44
10.7 Force Majeure 44
10.8 City Right of Intervention 44
10.9 Consent 44
10.10 No Third Party Beneficiaries 44
10.11 Franchise Ordinance Acceptance 44
10.12 Previous Rights Abandoned 45
10.13 Effective Date 45
1.3 "Access Services" or "Community Access Services" means programming
provided on any public, educational or government (PEG) access channel, and the provision
of any facilities, equipment, channels or other services for the purpose of facilitating such
programming.
1.4 "Addressability" means the capability of the multichannel video/cable
communications system to provide programming to specific subscribers on a per -program,
per -event, and per -program -package basis.
1.5 "Affiliate" when used in conjunction with CTE, means any corporation,
person or entity who owns or controls, is owned or controlled by, or is under common
ownership or control with CTE.
1.6 "Basic Service" means any tier of service regularly provided to all subscribers
of the multichannel video/cable system. It includes, but is not specifically limited to, the
retransmission of local broadcast television signals and the telecasting of public, educational,
or governmental access channels. Nothing in this definition shall be deemed to limit the
rights of CTE or the City with respect to the regulation of rates and charges as permitted by
applicable law.
1.7 "Cable Act " means the Cable Communications Policy Act of 1984 (Public
Law No. 98-549, 47 U.S.0 521 (Supp.)) as amended or as it may be amended or superseded.
1.8 "Cable Communications System," or "Cable System," or "System," or
"Multichannel Video/Cable System" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception and control equipment that is
designed to provide multichannel video/cable service which includes video programming and
which is provided to multiple subscribers within a community, but such term does not include
(1) a facility that serves only to retransmit the television signals of 1 or more television
broadcast stations; 2) a facility that only serves subscribers in 1 or more multiple unit
dwellings under common ownership, control, or management, unless such facility or facilities
uses any part of public right-of-way; 3) a facility of a common carrier which is subject, in
whole or in part, to the provisions of Title II of the Federal Communications Act (47 U.S.C.
201 et seq.), except that such facility shall be considered a multichannel video/cable system
(other than for purposes of Section 621 (c) (47 U.S.C. 541 (c)) to the extent such facility is
used in the transmission of video programming directly to subscribers, unless the extent of
such use is solely to provide interactive on -demand service; (4) an open video system that
complies with federal statutes; or (5) any facilities of any electric utility used solely for
operating its electric utility systems. Unless otherwise specified such term shall in this
document refer to the multichannel video/cable communications system constructed and
operated within the City under this franchise.
1.9 "Cable Service," or "Multichannel Video/Cable Service," or "Service"
means the one-way transmission of video programming or programming service to subscribers
and subscriber interaction, if any, which is required for the selection or use of such video
programming or other programming service.
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1.10 "Channel" means a radio frequency band or its technical equivalent on the
multichannel video/cable system, which is capable of carrying either one standard television
signal, or a number of audio, digital or other non -video signals, or some combination of such
signals. "Standard Television Channel" or "Standard Video Channel" means a six Megahertz
(MHz) frequency band or its technical equivalent, prior to any signal compression.
1. 11 "City" shall mean City of Yakima of the State of Washington and all the
incorporated territory within its present and future boundaries.
1.12 "City Council" shall mean the City Council of the City of Yakima,
Washington.
1.13 "Community Access Channel" means any channel on the multichannel
video/cable system designated or dedicated for use by the general public or non-commercial
organizations which is made available without charge on a first-come, first-served, non-
discriminatory basis. Such channels are identical to "public access channels" as defined in the
Cable Act.
1.14 "CTE" shall mean Central Telecommunications East, Inc., a Washington
corporation,. and its agents, successors and assignees.
1.15 "Customer" means any person(s) who legally receives any one or more of the
services provided utilizing the multichannel video/cable system.
1.16 "Days" shall mean calendar days.
1.17 "Downstream" shall mean a transmission from the headend to remote points
on the multichannel video/cable system or to interconnect points on the multichannel
video/cable system.
1.18 "Expanded Basic Service" shall mean optional services not included in the
Basic Service and excluding premium or pay-per-view services.
1.19 "FCC" shall mean the Federal Communications Commission.
1.20 "Franchise" shall mean the non-exclusive and revocable authorization or
renewal thereof such as is granted by this franchise and conditioned as set forth herein by
which the City authorizes CTE to erect, construct, reconstruct, operate, dismantle, test, use
and maintain a multichannel video/cable system within the City.
1.21 "Franchise Fee" shall mean the fee assessed by the City to CTE and/or any
third party user, in consideration of CTE's and/or any third party user's right to operate the
multichannel video/cable system within the City's streets and rights of way in such manner as
to provide multichannel video/cable service, determined in amount as a percentage of GTE's
and/or any third party user's gross revenues and limited to the maximum percentage allowed
for such assessment by federal law. The term Franchise Fee does not include any tax, fee, or
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assessment of general applicability, nor any payments by CTE called for in this franchise as
reimbursement of the City's costs, or support of community access services.
1.22 "Government Channel" or "Government Access Channel" means any
channel on the multichannel video/cable system specifically designated or dedicated for
government use.
1.23 "Gross Revenues" shall have a meaning consistent with any existing or future
City Code. Gross Operating Revenues means any and all compensation in whatever form,
from any source, directly earned by CTE or any affiliate of CTE or any other person or
persons who would constitute a operator of the multichannel video/cable system as defined by
the Cable Act and/or in this franchise, including Third Party User of the multichannel
video/cable system, derived from the provision of multichannel video/cable service, as
defined by the Cable Act and/or in this franchise, insofar as such provision in any manner
requires use of the public streets and rights of way in the Franchise Area. Amounts identified
by the City as franchise, copyright, or other license fees, shall not be excluded from gross
revenues. Gross revenues shall include but not be limited to basic and pay service revenues,
revenues from installation and equipment rental and sale, the applicable percentage of local
and regional advertising revenues, any leased access revenues, and revenues from any tiered
or packaged services.
Gross revenues shall not include any taxes on services furnished by CTE or any other
person or persons utilizing the multichannel video/cable system to provide such services,
which taxes are imposed directly on a subscriber or user by a city, state or other governmental
unit, and collected by CTE or any other person or persons utilizing the multichannel
video/cable system for such entity. Gross revenues shall not include amounts which cannot be
collected by CTE or any other person or person utilizing the multichannel video/cable system
and are identified as bad debt; provided that if amounts previously representing bad debt are
collected, then those amounts shall be included in gross revenues for the period in which they
are collected.
1.24 "Headend" means a facility for signal reception and dissemination on a
multichannel video/cable system including cables, antennas, wires, satellite dishes, monitors,
switches, modulators, processors and all other related equipment and facilities.
1.25 "Interactive Services" are those services provided to subscribers whereby the
subscriber has the ability to both receive information consisting of either television or other
signals and transmits signals generated by the subscriber or equipment under his/her control
for the purpose of selecting what information shall be transmitted to the subscriber.
1.26 "Interconnect" means the provision by CTE or any other person or persons
utilizing the multichannel video/cable system to provide multichannel video/cable services of
technical, engineering, physical and all other necessary components to maintain a physical
linking of the multichannel video/cable system and multichannel video/cable services
provided over such system and/or any designated channel (including PEG channels) or signal
pathway thereof with similarly situated multichannel video and/or cable systems, so that such
multichannel video/cable service or technically equivalent quality may be sent to and received
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from such other similarly situated multichannel video/cable systems in accordance with this
franchise.
1.27 "Leased Access" shall mean the use on a fee-for-service basis of the
multichannel video/cable system by business enterprises (whether profit, nonprofit or
governmental) to render services to the citizens of the City and shall include without
limitation all use pursuant to Section 612 of the Cable Act.
1.28 "Multichannel Video/Cable Operator" or "Operator" shall mean any
person or persons, including CTE and including any third party user of the multichannel
video/cable system, who provide multichannel video/cable service over the multichannel
video/cable system or directly or through one or more affiliates own a significant interest in
such system or who otherwise control or are responsible for, through and arrangement, the
management and/or operation the multichannel video/cable system.
1.29 "Pay Service" or "Premium Service" means programming (such as non -
advertiser -supported movie channels or pay-per-view programs) offered individually to
subscribers on a per -channel, per -program or per -event basis.
1.30 "Permittee" means any person or persons who has been granted a permit by
the assigned permitting authority.
1.31 "Permitting Authority" means the head of the City division or department
authorized to process and grant permits required to perform work in the City's rights-of-way,
or the head of any agency authorized to perform this function on the City's behalf. Unless
otherwise indicated, all references to the Permitting Authority shall include the designee of the
department, division or agency head.
1.32 "Person" means any individual, corporation, partnership, association, joint
venture or organization of any kind and the lawful trustee, successor, assignee, transferee or
personal representative thereof.
1.33 "Penalties" means any and all monetary penalties provided for in this
Franchise.
1.34 "Right -of -Way" or "Rights -of -Way" shall mean the surface of and the space
above and below any public -street, road, highway, freeway, easement, lane, path, alley, court,
sidewalk, parkway or driveway now or hereafter existing as such within all incorporated areas
of the City.
1.35 "School" means any public, private, or non-profit educational institution,
including primary and secondary schools, colleges and universities.
1.36 "Subscriber" means any person elects to subscribe to, for any purpose,
multichannel video/cable service provided via the multichannel video/cable system and whose
premises are physically wired and lawfully activated to receive multichannel video/cable
service via the multichannel video/cable system whether such service is provided by CTE or
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any other person including third party users of the multichannel video/cable system. A
subscriber is further defined as:
(1) "Commercial Subscriber" means any subscriber other than a residential
subscriber.
(2) "Residential Subscriber" means any person who receives multichannel
video/cable service delivered to single or multiple .dwelling units, excluding such
dwelling units billed on a bulk -billing basis.
1.37 "Street" shall mean the surface of and the space above and below the right of
way of any public street, road, highway, freeway, easement, lane, path, alley, court, sidewalk,
parkway, or driveway now or hereafter existing as such within all incorporated areas of the
City.
1.38 "Third Party User" or "Third Party Users" means any person or persons
other than affiliates, assignees, associations, joint ventures, partners or trustees of CTE which
utilizes the multichannel video/cable system to provide multichannel video/cable service to
subscribers within the franchise area through any agreement, contract or other such instrument
with CTE. Any third party user of the multichannel video/cable system shall comply with
each and every provision, term and condition of this franchise as if such third party user, itself,
had been granted this franchise.
1.39 "Upstream Channel" shall mean a channel capable of carrying transmissions
to the headend from remote points on the system or to interconnect points on the system.
1.40 "WUTC" shall mean the Washington Utilities and Transportation
Commission.
1.41 "Year," "Annual" or "Annually" means the period consisting of a full
calendar year, beginning January I and ending December 31, unless otherwise provided for in
this Franchise.
SECTION 2 - FRANCHISE
2.1 Grant of Franchise.
A. The City hereby grants to Central Telecommunications East, Inc.
("CTE"), a non-exclusive franchise which authorizes CTE, subject to the terms of this
Ordinance, to construct, operate and maintain a multichannel video/cable communications
system and offer, or have offered by a third party user through a contract, agreement or any
other such instrument to which CTE and such third party user are the sole parties,
multichannel video/cable service and other services, in, along, among, upon, across, above,
over, under or in any matter connected with the rights-of-way located in the City and for that
purpose to erect, install, construct, repair, replace, reconstruct, maintain or retain in, on, over,
under, upon, across or along any rights-of-way or extensions thereof and additions thereto,
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such poles, wires, cables, conductors, ducts, conduits, vaults, utility access covers, pedestals,
amplifiers, appliances, attachments and other related property or equipment as may be
necessary or appurtenant to the multichannel video/cable communications system. Said
franchise shall constitute both a right and an obligation to provide the services of a
multichannel video/cable communications system as required by the provisions of this
Ordinance.
B. CTE promises and guarantees, as a condition of exercising the
privileges granted by this Ordinance, that any affiliate, joint venture or partner of CTE or any
third party user of the multichannel video/cable communications system directly involved in
providing multichannel video/cable service via the multichannel video/cable communications
system within the franchise service area, or directly involved in the management or operation
of the multichannel video/cable communications system will comply with each and every
term and condition of this franchise as set forth in this Ordinance.
2.2 Franchise Term. The term of this franchise shall be nine (9) years from the
effective date unless extended in accordance with the provisions in Sections 2.7 and 2.13 of
this franchise or terminated sooner in accordance with this franchise. This provision does not
affect the City's right to revoke this franchise for cause, because of a breach of any promise,
condition or stipulation stated herein.
2.3 Franchise Non -Exclusive. The franchise granted herein shall be non-
exclusive. The City specifically reserves the right to grant, at any time, such additional
franchises for a multichannel video/cable communications system as it deems appropriate
provided, however, such additional grants shall not operate to materially modify, revoke or
terminate any rights previously granted to CTE. The grant of any additional franchise shall
not of itself be deemed to constitute a modification, revocation or termination of rights
previously granted to CTE. Any franchise granted pursuant to this Franchise shall confer and
impose substantially similar rights and obligations. In establishing the rights and obligations
pursuant to a franchise, consideration shall be given to the services to be provided, the area to
be served, the commitments made by the applicant to the City, the regulatory authority of the
City and the investment proposed by such applicant. In no event will the City impose
discriminatory rights or obligations on any franchise applicant.
2.4 Authority Granted.
A. Subject to local, state and federal law, this Franchise grants the
authority, right and privilege to CTE to operate and maintain .a multichannel video/cable
communications system including the towers, antenna, satellite dishes, lines and other
appurtenances necessary for the provision of multichannel video/cable service, as defined in
Section 1.9 of this franchise and in 47 U.S.C. Section 522(6) as amended, and other services
as defined herein, in, upon, along, above, over and under the streets and rights-of-way in the
City.
B. CTE's right to operate and maintain its multichannel video/cable
communications system is subject to the terms, conditions and requirements of this
Ordinance, the franchise granted under this Ordinance and the City Charter and CTE's right to
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construct, erect, install or modify its multichannel video/cable communications system is
specifically subject to the requirement that CTE obtain permits as set forth in this franchise.
C. CTE expressly acknowledges and agrees, by acceptance of this
franchise, that its rights under this franchise are subject to the police power of the City to
adopt and enforce general ordinances necessary to the safety, health and welfare of the public
and CTE agrees to comply with all such applicable general laws and ordinances enacted by
the City pursuant to such police power. The City, by the granting of this franchise, does not
render or to any extent lose, waive, impair or lessen the lawful powers and rights now or
hereafter vested in the City to regulate the use of its rights-of-way and tax, regulate or license
the use thereof, and CTE, by its acceptance of this franchise, acknowledges and agrees that all
lawful powers and rights, whether regulatory or otherwise, as are or may be from time to time
vested in or reserved to the City, shall be in full force and effect and CTE shall be subject to
the exercise thereof by the City at any time.
D. CTE expressly acknowledges and agrees, by acceptance of this
franchise, that lines, equipment, conduits and other facilities and appurtenance in the City
rights-of-way which are subsequently acquired by CTE and which, if acquired prior to this
original franchise grant, would have been subject to this franchise and the permitting authority
related thereto, shall be subject to the provisions of this franchise and all permits related
thereto.
E. In return for promises made and subject to the stipulations and
conditions stated herein, the City grants to CTE permission to use the City's rights-of-way to
provide multichannel video/cable services to persons within the Franchise Service Area. To
the extent of the City's interests, permission is similarly granted to CTE to use areas outside
the City's rights-of-way which are reserved by regulation, practice or dedication for public
utilities, but in such areas, CTE's use is also subject to conditions now or hereafter recognized
by the City as generally applicable to multichannel video/cable, telecommunications or
underground conduit utilities,
2.5 Limits on Permission.
A. As used in Section 2.4, E, "multichannel video/cable services" means
such services as those defined in Section 1.9 of this franchise provided by CTE, an affiliate,
partner or joint venture of CTE or any third party user of the multichannel video/cable
communications system to persons within the City. Permission is not granted to use the City
rights-of-way for any other purpose. CTE stipulates that this franchise extends no such rights
or privileges.
B. Permission does not extend to areas outside those listed in Section 2.4,
E of this franchise, or otherwise to any area outside the authority of the City to extend
franchised -use permission, such as buildings or private areas not reserved for utilities. CTE is
solely responsible to make its own arrangements for any access to such places.
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C. This franchise does not extend permission to municipal buildings or
other municipally owned or controlled structures. For such locations, CTE shall make
specific arrangements directly with the municipal department or division controlling such
building or other structure.
D. Permission granted by this franchise is non-exclusive. CTE stipulates
the City may grant similar permission to others.
E. CTE shall not permit installations by others in the Franchise Service
Area without written approval of the City. Such approval shall not be in lieu of a franchise or
other requirements of the City. Whether or not permitted, CTE remains responsible for all
third party users of the multichannel video/cable communications system for compliance with
this franchise.
F. No privilege or exemption is granted or conferred by this franchise
except as may be specifically prescribed.
G. Any privilege claimed under this franchise in any street or right-of-way
shall be subordinate to any prior lawful occupancy or any subsequent exercise of City police
power. The grant of this franchise shall not impart to CTE any fee title property rights in or
on any public or private property to which CTE does not otherwise have title.
2.6 Franchise Service Area. The Franchise Service Area shall be that area within
the present or future city limits of the City of Yakima, Washington.
2.7 Periodic Public Review of Franchise.
A. The City shall, at three-year intervals, conduct a comprehensive, public
review of this franchise. The first review shall begin upon the third anniversary of the
effective date of this franchise and occur every three (3) years thereafter. One purpose of such
reviews shall be to ensure that this franchise continues to effectively serve the public in light
of new developments in law and regulation, technology, local regulatory environment and
community needs and interests. Another purpose of such reviews shall be to accurately and
completely evaluate compliance by CTE with this franchise and to identify any violations by
CTE of any provision(s) of this franchise. Both the City and CTE agree to make a full and
good faith effort to participate in such reviews in a manner that accomplishes the goals stated.
B. During such reviews, the City may require CTE to make available
records, documents and other information necessary for the effective completion of such
reviews and may inquire in particular whether CTE is supplying services equivalent to those
proposed by CTE during the process leading to the granting of this franchise.
C. The periodic reviews described in this Section may be, but need not be,
made coincident with reviews involved in the consideration of CTE requests for franchise
renewal, franchise extension or approval of transfer of ownership of the multichannel
video/cable communications system. Nothing in this Section shall be construed to prohibit
the City and CTE from engaging in a continuous review of the performance of CTE. The City
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may also, at any time, conduct a public hearing on any issue related to compliance by CTE
with this franchise or any permit related thereto.
D. After completion of each such review described herein, if the City is
satisfied CTE has substantially complied with this franchise during the previous three years
and is satisfied the public interest will be served by extending the term of this franchise, it
may, with the consent of CTE, extend the term set forth in Section 2.2 of this franchise by one
(1) additional year. In no event, however, shall the total term of this franchise, including any
extensions, exceed twelve (12) years.
2.8 Franchise Renewal or New Franchise.
A. The City may establish appropriate requirements for new franchises or
franchise renewals consistent with federal, state and local law.
B. Nothing in this franchise shall be construed to require renewal of this
franchise.
2.9 Renegotiation. In the event that any provision of this franchise becomes
invalid or unenforceable and the City or CTE expressly finds that such provision constituted a
consideration material to entering into this franchise, or in the event of significant change in
the law regulating this franchise or change in municipal authority to act under the terms of this
franchise, or in the event of significant change or advancement in technology governing
CTE's functions, the City and CTE may mutually agree to renegotiate any or all of the terms
of this franchise. The party seeking renegotiation shall serve on the other party written notice
of an offer to renegotiate. In the event the other party accepts the offer to renegotiate, the
parties shall have one hundred twenty (120) days to conduct and complete the renegotiation.
Nothing in this franchise shall be construed to require acceptance by either the City or CTE of
an offer to renegotiate.
2.10 Revocation.
A. In addition to any rights set out elsewhere in this franchise, the City
reserves the right to declare a forfeiture or otherwise revoke this franchise and all rights and
privileges pertaining thereto in the event that:
(1) The City determines CTE is in violation of any material provision of
this franchise and fails to correct the violation after written notice of the violation and
proposed forfeiture and a reasonable opportunity thereafter to correct the violation as
noted in Section 9.2 of this franchise; or
(2) CTE is found by a court of competent jurisdiction to have engaged in
any actual or attempted fraud or deceit upon the City, persons or customers; or
(3) CTE becomes insolvent, unable or unwilling to pay its debts as they
become due, or is adjudged a bankrupt; or
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(4) CTE fails, refuses, neglects or is otherwise unable to obtain and/or
maintain any permit required by any federal or state regulatory body regarding CTE's
construction, maintenance and operation of its multichannel video/cable
communications system.
B. For purposes of this Section, the following are material provisions of
this franchise, allowing the City, without limitation, to exercise its rights under this Section or
as set forth elsewhere in this franchise:
(1) The invalidation, failure to pay or any suspension of CTE's payment of
any fees or taxes due the City under this franchise;
(2) Any failure by CTE to submit timely reports regarding the calculation
of any gross revenue -based fees or taxes due the City under this franchise;
(3) Any failure by CTE to maintain the liability insurance required under
this franchise;
(4) Any failure by CTE to maintain and provide the City a copy of a
Performance Bond as required under this franchise;
(5) Any failure by CTE to otherwise fully comply with the requirements of
this franchise.
C. Upon occurrence of one or more of the events set out above, following
sixty (60) days written notice to CTE of the occurrence and the proposed forfeiture and an
opportunity for CTE to be heard, the City may, by ordinance or other appropriate document,
declare a forfeiture. In a hearing of CTE, CTE shall be afforded due process rights as if the
hearing were a contested case hearing subject to Washington law, including the right to cross-
examine witnesses and to require that all testimony be on the record. Findings from the
hearing shall be written and shall stipulate the reasons for the City's decision. If a forfeiture is
lawfully declared, all rights of CTE under this franchise shall immediately be divested without
a further act upon the part of the City.
2.11 Right to Purchase the System.
A. In the event the City has declared a forfeiture for cause or otherwise
revoked for cause the franchise as provided herein, or in the event of expiration of the initial
term of the this franchise without this franchise being renewed or extended and the City
Council has so ordered by ordinance, CTE shall continue its operations for a period of two -
hundred -seventy (270) days after either the effective date of such ordinance or the expiration
of the initial term of this franchise unless the ordinance in either case orders termination by
CTE of its operations at an earlier time. During said period of continued operations, CTE
shall not transfer any portion of its multichannel video/cable communications system to any
other person, including those parts of the system which may be rented, leased, or lease -
purchased without prior written consent of the City. Within thirty (30) days of the order by
the City to continue operations, CTE shall tender to the City an inventory of its multichannel
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video/cable communications system used in the operations under this Ordinance. After
receiving the inventory, the City may notify CTE that it desires to acquire by purchase at fair
market value all or a portion of the system used by CTE in its operation, exclusive of parts of
the system essential to CTE's operation of parts of the system, or of other systems, not
acquired. Such notice shall be by ordinance or other appropriate writing of the City and shall
state a date upon which CTE shall cease its operations and receive payment as described
below.
Under this Section, if this franchise renewal is denied, the City shall have an
option to acquire CTE's multichannel video/cable communications system at fair market
value, determined on the basis of the system valued as a going concern but with no value
allocated to this franchise itself. If this franchise is revoked for cause, the City shall have an
option to acquire CTE's system at an equitable price.
The fair market value or the equitable price of the system for purposes of this
Subsection shall be determined by mutual agreement between the City and CTE. If such
mutual agreement is not reached, then the City may demand that such valuation be determined
by an appraisal committee, as provided in Subsection (B) below. The appraisers selected for
such appraisal committee shall be knowledgeable in valuation of multichannel video/cable
communications systems.
During any period of continued operation under this Section except for the use
of CTE's property as collateral for security in financing the construction or acquisition of all
or party of the multichannel video/cable communications system, CTE shall not sell, assign,
transfer, or lease to any other persons, firm or corporation, any portion of the system used by it
in its operations without the prior written consent of the City.
B. Appraisal as provided in Subsection (A) of this Section shall be final
and binding upon both parties, subject to:
(1) The City's right within sixty (60) days of determination of valuation to
decide by appropriate ordinance or other writing not to acquire all or any part of the
system subject to the valuation proceeding; and
(2) The City's right to decide to acquire. through the sale of bond, but
subject to and conditioned upon any necessary voter approval of the bond funding for
acquisition of all or a party of the system and, if applicable, the successful sale of the
bonds. The City may chose to employ appraisal by appropriate ordinance or other
writing of its governing body. In the ordinance or other writing the governing body
shall appoint one (1) appraiser, and CTE, by written notice, shall appoint one (1)
appraiser within fifteen (15) days after the passage of such ordinance or other writing.
The two (2) so appointed shall selected a third appraiser within fifteen (15) days of the
appointment of the second appraiser. The appraisers shall make a written report to the
City and CTE of their determination of the value of the system, or relevant part
thereof, within ninety (90) days after the appointment of the third appraiser. The
determination of a majority of the appraisers shall constitute the appraisal
determination hereunder. The City and CTE shall pay the cost of their chosen
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appraiser and the cost of the third appraiser shall be divided equally between the City
and CTE.
C. In the event the City purchases, acquires, takes over, or holds all or
parts of the system pursuant to Subsection (A) of this Section, the City shall have the right
without limitation to assign, sell, lease, or otherwise transfer its interest in all or parts of the
system to any other persons, including any other grantee of a multichannel video/cable
communications system and/or cable communications system franchise, on whatever terms
the City deems appropriate.
In the event this franchise renewal is denied or terminated for any reason, and
the City does not exercise the option to purchase the multichannel video/cable
communications system, the City must allow CTE to abandon the facilities, or effect transfer
to another purchaser consistent with the franchise transfer provisions of this Ordinance.
2.12 Receivership. The City shall have the right to declare a forfeiture or otherwise
revoke this franchise one hundred eighty (180) days after the appointment of a receiver, or
trustee, to take over and conduct the business of CTE, whether in receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have
vacated prior to the expiration of said one hundred eighty (180) days, or unless:
(1) Within one hundred eighty (180) days after his/her election or
appointment, such receiver or trustee shall have been approved by the City and shall
fully have complied with all the provisions of this franchise and remedied all defaults
thereunder; and
(2) Such receiver or trustee, within said one hundred eighty (180) days,
shall have executed an agreement, duly approved by the City as well as the court
having jurisdiction in the premises, whereby such receiver or trustee assumes and
agrees to be bound by each and every provision of this franchise.
2.13 Expiration. Upon expiration of this franchise, the City shall have the right, at
its own election, to:
(1) Extend this franchise, as provided for herein, for up to a total of three
(3) years, though nothing in this provision shall be construed to require such
extension;
(2)
(3)
(4)
(5)
Renew this franchise, in accordance with applicable valid law;
Invite additional franchise applications or proposals;
Terminate this franchise without further action; and
Take such other action as the City deems appropriate.
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2.14 Transfer of Ownership.
A. This franchise shall not be sold, leased, mortgaged, assigned or
otherwise transferred, nor shall any of the rights or privileges herein granted or authorized be
sold, leased, mortgaged, assigned or otherwise transferred, either in whole or in part, nor shall
title hereto, either legal or equitable, or any right, interest or property herein, pass to or vest in
any person, except CTE, either by act of CTE or operation of law, without the prior consent of
the City, expressed in writing. The granting of such prior consent in one instance shall not
render unnecessary any subsequent prior consent in another instance. Any transfer of
ownership shall make this franchise subject to revocation unless and until the City shall have
given written prior consent.
B. Upon any transfer as heretofore described, CTE shall, within sixty (60)
days thereafter, file with the City a copy of the deed, agreement, mortgage, lease or other
written instrument evidencing such sale, lease, mortgage, assignment or transfer, certified and
sworn as correct by CTE.
C. Every such transfer as heretofore described, whether voluntary or
involuntary, shall be deemed void and of no effect unless CTE shall, within sixty (60) days
after such transfer has been made, file such certified copy as is required.
D. The requirements of this Section shall not be deemed to prohibit the use
of CTE's property as collateral for security in financing the construction or acquisition of all
or partof the multichannel video/cable communications system franchised hereunder.
However, such financing shall be subject to the provisions of this franchise.
E. The City reserves the right to invoke any or all provisions of this
franchise upon CTE's successors or assigns, judgment creditors or distributees of facilities or
property used in enjoyment of privileges conferred herein, whether or not stated elsewhere, all
without waiver of the right to withhold consent not expressly given of any such transfer and/or
require a new franchise.
2.15 Change in Control. CTE shall promptly notify the City through the City
Council of any proposed change in, transfer of or acquisition by any other party of control of
CTE. If beneficial ownership of thirty percent (30%) or more of the stock of CTE, or any
parent company of CTE immediate or otherwise, or of any entity now owning or later
acquiring such a beneficial interest is acquired by a single entity or by several entities under
common control, and if such entity or agent of common control is other than an organization
a) whose primary business is multichannel video/cable communications system operation, and
b) is more than fifty percent (50%) owned by CTE or a parent of CTE, then a change in
control will be deemed to have taken place unless the City, upon request of CTE, finds
otherwise. Such a change in control shall make this Franchise subject to. revocation unless
and until the City has given its consent in writing to such a change in control in advance of its
occurring.
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2.16 No Stock to be Issued. CTE promises never to issue any capital stock on
account of this franchise or any permission granted under the terms of this franchise, or the
value thereof. CTE further agrees it will not have any right to receive, upon a condemnation
proceeding or other negotiation by the City to acquire the properties of CTE, any payment or
award on account of this franchise or permission or its value. CTE waives all such claims
against the City and also any claims for any municipal revision, action, inaction, curtailment,
suspension, revocation or change in municipal policy or regulation relating to CTE's
franchised activities. The City shall have no obligation to make any payment to CTE or award
in condemnation for any other asset or interest of CTE, except as required under the State of
Washington Constitution and United States Constitution or as state or federal laws may
preemptively require.
2.17 Other Codes and Ordinances. Nothing in this franchise shall be deemed to
waive the requirements of the other lawful codes and ordinances of the City regarding permits,
fees to be paid or manner of construction.
2.18 Survival of Terms. Sections 4.9, 7 and 10 of this franchise shall continue in
effect as to CTE notwithstanding any expiration, forfeiture or revocation of this franchise.
SECTION 3 - ENFORCEMENT AND ADMINISTRATION BY THE CITY
3.1 City Jurisdiction and Supervision. The City, through its
Telecommunications Division (or its successor(s)), shall have continuing regulatory
jurisdiction and supervision over the operation and enforcement of this franchise and may
from time to time adopt such reasonable rules and regulations as it may deem necessary for
the conduct of the business contemplated herein. All questions of application, interpretation,
conflict or ambiguity arising out of or in connection with this franchise are to be determined
by the manager of the Telecommunications Division (or his/her successor(s)), except only
where otherwise specifically stated, or in the event that a different person or body may be
designated by the City through written notice to CTE.
3.1.1 Areas of Administrative Authority. In addition to reserving its right
to exercise all regulatory authority concerning this franchise, the City shall have the right to
exercise administrative authority in areas including but not limited to the following:
(1) Administering and enforcing provisions of this franchise including the
adoption of administrative rules and regulations for the conduct of the business
contemplated herein;
(2) Coordination of Public, Government and Educational Access channels;
(3) Coordination of CTE's technical, programming and operational
assistance to public agency users;
(4) Formulating and recommending long-range telecommunications policy
for the Yakima area;
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(5) Disbursement and utilization of franchise fee and utility tax revenue
paid to the City; and
(6) Administering the regulation of rates, to the extent permitted by
applicable law.
3.2 Grantee to Have No Recourse. Subject to state and federal law, CTE shall
have no recourse other than non -monetary declaratory or injunctive relief against the City and
shall be awarded no monetary recovery whatsoever for any incidental or consequential
damages, including but not limited to lost profits, arising out of any provision or requirement
of this franchise, nor from the City's regulation under this franchise, nor from the City's
exercise of its authority to grant additional franchises.
3.3 Acceptance of Power and Authority of City. CTE expressly acknowledges
by acceptance of this franchise that:
(1) It has relied upon its own investigation and understanding of the power
and authority of the City to grant and enforce this franchise and that it has no objection
to the exercise of the City's power and authority therein;
(2) It has not been induced to enter into this franchise arrangement by any
understanding or promise or other statement, whether verbal or written, by or on
behalf of the City concerning any term or condition of this franchise that is not
specifically included herein;
(3) It has carefully read the terms and conditions contained herein and CTE
is willing to and does accept all the obligations of such terms and conditions to the
extent not inconsistent with state or federal law and further agrees that it will not set
up as against the City any claim that any provision of this franchise is unreasonable,
arbitrary, invalid or void subject to its rights herein; and
(4) The matters contained in CTE's application and all subsequent
applications or proposals for renewals of this franchise, and as stated in any and all
other presentations to the City, except as inconsistent with law, regulations or local
ordinance, are incorporated into this franchise as though set out verbatim.
3.4 Acts Discretionary, Reservation of Authority. All City acts undertaken
pursuant to this franchise shall be deemed discretionary, guided by the provisions of this
franchise and considerations of the public health, safety, aesthetics and convenience. CTE
stipulates and agrees that this franchise is subject to the City Charter of the City of Yakima.
CTE understands the Charter's provisions are incorporated herein, where applicable. CTE
agrees that the City reserves all municipal powers now or hereafter granted by law, including
without limitation, the power to tax and license, regulate activities of land use, protect the
public health and safety and regulate and control use of the public right-of-way.
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3.5 Delegation of Authority to Regulate. The City reserves the right to delegate
its regulatory authority wholly or in part to the federal government, state government and/or to
agents of the City, including but not limited to an agency which may be formed to regulate
several City franchises.
SECTION 4 - OPERATION IN STREETS AND RIGHTS-OF-WAY
4.1 Use of Streets. CTE may, subject to terms of this franchise, erect,install,
construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the
City streets and rights-of-way such lines, cables, conductors, ducts, conduits, vaults, utility
access covers, amplifiers, appliances, pedestals, attachments and other property and
equipment as are necessary and appurtenant to the operation of a multichannel video/cable
communications system within the City. All installation, construction, alteration and/or
maintenance of any and all multichannel video/cable communications system facilities within
City streets and rights-of-way incident to the provision of multichannel video/cable service
shall, regardless of who performs installation, construction, alteration and/or maintenance, be
and remain the responsibility of CTE.
4.2 Construction or Alteration.
4.2.1 Permits. CTE shall in all cases comply with all lawful City ordinances
and regulations regarding the acquisition of permits and other such items as may be
reasonably required in order to install, construct, alter and maintain the multichannel
video/cable communications system. CTE shall apply for and obtain all permits necessary for
installation, construction, alteration and/or maintenance of any such facilities, and for
excavation and laying of any multichannel video/cable communications system facilities
within City streets and rights-of-way. CTE shall pay all applicable fees due for any such
permits.
4.2.2 Schedule and Maps.
A. Prior to beginning installation, construction, alteration or maintenance
of the multichannel video/cable communications system, CTE shall provide the City with an
initial work schedule for work to be conducted in City streets and rights-of-way and the
estimated total cost of such work. CTE shall, upon request, provide information to the City
regarding its progress in completing or altering the multichannel video/cable communications
system.
B. Upon completion of construction or alteration of the multichannel
video/cable communications system, CTE shall provide the City with a map showing the
location of its installed multichannel video/cable communications system, as built. Such "as -
built" maps shall be in a form acceptable to the City.
C. CTE shall provide a map to the City's Telecommunications Division, or
its successor, showing the location of CTE's facilities in City streets and rights-of-way on a
scale of 3500 feet per inch or in whatever standard scale the City adopts for general use:
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(1) One (1) year after the effective date of this franchise; and
(2) Annually thereafter.
4.2.3 Good Engineering.
A. CTE promises all of its property and facilities shall be constructed,
operated and maintained in good order and condition in accordance with good engineering
practice. In connection with the civil works of CTE's multichannel video/cable
communications system, such as, but not limited to, trenching, paving, compaction and
locations, CTE promises to comply with the edition of the American Public Works
Association Standard Specifications which is in current or future use by the City, together
with the City's Supplemental Specifications thereto, all as now or hereafter amended.
B. CTE promises that the multichannel video/cable communications
system shall comply with the applicable federal, state and local laws, the National Electric
Safety Code and the Washington Electrical Construction Code, where applicable.
4.3 Facilities Placement.
4.3.1 General Standards. The multichannel video/cable communications
system shall be constructed and maintained in such manner as not to obstruct, hinder, damage
or otherwise interfere with sewers, water pipes, other utility fixtures or any other property of
the City, or any other pipes, wires, conduits or other facilities that may have been installed in
City streets or rights-of-way by or under the City's authority. CTE shall maintain a minimum
underground horizontal separation of five (5) feet from City water facilities and ten (10) feet
from above -ground City water facilities; PROVIDED, that for development in new areas, the
City, together with CTE and other utility purveyors or authorized users of City streets or
rights-of-way, will develop and follow the City's determination of a consensus for guidelines
and procedures for determining specific utility locations, subject additionally to this franchise.
4.3.2 Limited Access. CTE must follow the City's requirements for the
placement of facilities in City streets and rights-of-way, including City requirements for
location of facilities in specific City streets and rights-of-way, and must in any event install
facilities in a manner that minimizes interference with the use of City streets and rights-of-
way by others, including others that may have or may install multichannel video/cable
communications and/or telecommunications facilities in City streets and rights-of-way. The
City may require that CTE install facilities at a particular time, at a specific place and/or in a
particular manner as a condition of access to a particular City street or right-of-way and the
City may exclude GTE's access to a particular street or right-of-way in accordance with City
requirements for placement of facilities.
4.3.3 Consistency with Designated Use. Notwithstanding the grant to use
City streets and rights-of-way contained in this franchise, no street or right-of-way shall be
used by CTE if the City, in its sole opinion, determines that such use is inconsistent with the
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terms, conditions or provisions by which such street or rights-of-way were created or
dedicated or presently used under state and local laws.
4.3.4 Non -Interference. CTE shall exert its best efforts to construct and
maintain the multichannel video/cable communications system so as not to interfere with
other uses of City streets or rights-of-way. CTE shall, where possible in the case of
aboveground lines, make use of existing poles and other facilities available to CTE. CTE
shall individually notify all residents affected by any proposed installation, construction,
alteration or maintenance of the multichannel video/cable communications system of such
work where and when such notification is reasonably possible.
4.3.5 Undergrounding. The City finds that overhead lines and aboveground
wire facilities and installations in the streets or rights-of-way and other franchised areas
adversely impact upon the public use and enjoyment of property in the City, including an
aesthetic impact. Therefore, CTE shall place underground all of its transmission lines that are
located or are to be located above or within City streets or rights-of-way in the following cases
where:
(l)
All existing utilities are located underground;
(2) Transmission or distribution facilities of the local exchange carrier
and/or the electric utility are underground or hereafter placed underground;
(3) Statute, ordinance, policy or other regulation of the City requires
utilities to be placed underground;
(4) CTE is unable to obtain pole clearance;
(5) Underground easements are obtained from developers of new
residential areas; or
(6) Utilities are overhead but residents prefer same to be located
underground (such undergrounding to be provided at residents' expense).
CTE hereby states it is familiar with RCW Ch. 19.122, Washington State's
"Underground Utilities" statute, and understands local procedures, custom and practice
relating to the one -number locator service program. Consistent with any general municipal
undergrounding policy or program now or hereafter developed; the City may require CTE's
participation in municipally imposed undergrounding or related requirements as a condition of
CTE's installation or continued maintenance of overhead facilities authorized under this
franchise. CTE hereby agrees to coordinate its underground installation and planning
activities with the City's underground plan and policies.
4.4 Coordination with Other Users. CTE shall coordinate its activities with
other utilities and users of City streets and rights-of-way scrupulously to avoid unnecessary
cutting, damage or disturbance of such streets and rights-of-way and shall conduct its
planning, design, installation, construction, alteration and maintenance of the multichannel
19
video/cable communications system at all times so as to maximize the life and usefulness of
the paving and municipal infrastructure. In addition, the City may determine with respect to
franchised uses, in the exercise of reasonable discretion, when and where reasonable
accommodation shall be made by CTE to the City for public needs or, where requested, other
third party needs, how such accommodation should be made and a reasonable apportionment
of any expenses of same; PROVIDED, that this franchise creates no third party beneficial
interests or accommodation. Notwithstanding the foregoing, it remains the responsibility of
CTE to anticipate and avoid conflicts with other City streets or rights-of-way occupants or
users, other utilities, franchisees or permittees. The City assumes no responsibility for such
conflicts. Further, CTE shall give appropriate notices to any other City streets or rights-of-
way occupants or users, other utilities, franchisees, permittees, divisions of the City or other
units of government owning or maintaining facilities which may be affected by CTE's
planning, design, installation, construction, alteration or maintenance of the multichannel
video/cable communications system.
4.5 Relocation.
A. The City shall have the right during the term of this franchise, as it may
be extended, renewed or otherwise altered in accordance with this franchise, to require CTE to
change the location of its multichannel video/cable communications system within City streets
and rights-of-way when the public convenience and necessity requires such change. If the
City or any government entity elects or requires a third party to alter, repair, realign, abandon,
improve, vacate, reroute or change the grade of any street, public way or other public property;
or to construct, maintain or repair any public improvement; or to replace, repair, install,
maintain or otherwise alter any cable, wire, wire conduit, pipe, line, pole, wireholding
structure, structure or other facility, including a facility used for the provision of utility or
other services or transportation of drainage, sewage or other liquids, CTE shall, upon
request, except as otherwise hereinafter provided, at no expense to the City, remove or
relocate as necessary its poles, wires, cables, underground conduits, vaults, pedestals, utility
access covers and any other facilities which it has installed.
B. If the City requires CTE to remove or relocate its facilities located
within City streets or rights-of-way, the City will make a reasonable effort to provide CTE
with an alternate location for its facilities within City streets or rights-of-way.
C. The City shall provide CTE with the standard notice given under the
circumstances to other franchisees, licensees or permittees.
D. If during the term of this franchise, as it may be extended, renewed or
otherwise altered in accordance with this franchise, another entity which holds a franchise or
any utility requests CTE to remove or relocate its multichannel video/cable communications
system facilities to accommodate the construction, maintenance or repair of the requesting
party's facilities, or the more efficient use of such facilities, or to "make ready" the requesting
party's facilities for use by others, or because CTE is using a facility which the requesting
party has a right or duty to remove, CTE shall do so. The parties involved may decide among
themselves who is to bear the cost of removal or relocation; PROVIDED, that the City shall
not be liable for any such cost(s).
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E. Any person requesting CTE to remove or relocate its facilities shall
give CTE no less than forty-five (45) days advance written notice advising CTE of the date or
dates removal or relocation is to be undertaken; PROVIDED, that no advance written notice
shall be required in emergencies or in cases where public health and/or safety or property is
endangered.
F. If CTE fails, neglects or refuses to remove or relocate its facilities as
directed by the City, or in emergencies or where public health and/or safety or property is
endangered, the City may do such work or cause it to be done and the cost, including all
direct, indirect and/or consequential costs and expenses incurred by the City due to CTE's
failure, neglect or refusal thereof shall be paid solely by CTE. If CTE fails, neglects or refuses
to remove or relocate its facilities as directed by another franchisee or utility, that franchisee
or utility may do such work or cause it to be done, and if CTE would have been liable for the
cost of performing such work, the cost, including all direct, indirect and/or consequential costs
and expenses incurred by such franchisee or utility thereof to the party performing the work or
having the work performed shall be paid solely by CTE.
G. If CTE causes any damage to private property or public property in the
process of removing or relocating its facilities, CTE shall pay the owner of the property for
such damage.
H. CTE does hereby promise to protect and save harmless the City, its
officers, agents and employees from any customer or third party claims for service
interruption or other losses in connection with any removal or relocation of CTE's
multichannel video/cable communications system facilities.
4.6 Movement of Buildings. CTE shall, upon request by any person holding a
building permit, franchise or other approval issued by the City, temporarily remove, raise or
lower its transmission or other wires appurtenant to the multichannel video/cable
communications system to permit the movement of buildings. The expense for such removal,
raising or lowering shall be paid by the person requesting the same and CTE shall be
authorized to require such payment in advance. The City shall require all building movers to
provide not less than three (3) business days notice to CTE for such temporary wire changes.
4.7 Tree Trimming. CTE, with twenty-four (24) hour notice to the property
owner, shall have the authority to trim or cause to have trimmed trees upon and overhanging
streets, alleys, sidewalks and rights-of-way so as to prevent the branches of such trees from
coming in contact or otherwise interfering with the multichannel video/cable communications
system; PROVIDED, that the cost for such trimming of trees shall be paid solely by CTE.
4.8 Restoration.
A. Whenever CTE damages or disturbs any area in or near City streets,
rights-of-way, paved area or public improvement, CTE shall, at its sole cost, expense and
liability, restore such area in or near City streets, rights-of-way, paved area or public
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improvement to at least its prior condition, or the City standard, whichever is greater, to the
satisfaction of the City.
B. Whenever any opening ismade by CTE in a hard surface pavement in
any City street or right-of-way, CTE shall refill, restore, patch and repave entirely all surfaces
opened as determined necessary by the City in order to maintain and preserve the useful life
thereof.
C. For pavement restorations, any patch or restoration shall be thereafter
properly maintained in good condition and repair by CTE until such time as the area is
resurfaced or reconstructed.
D. The City hereby reserves the right, after providing reasonable notice to
CTE, to remove and/or repair any work done by CTE which, in the determination of the City,
is inadequate. The cost thereof, including the cost of inspection and supervision, shall be paid
solely by CTE.
E. Should CTE fail, neglect, refuse or delay in performing any obligation
here or elsewhere stated, or where the City deems necessary to protect the public right-of-way
or to avoid liability, risk or injury to the public or the City, the City may proceed to perform or
cause to have performed such obligation, including any remedial or preventative action
deemed necessary, at CTE's sole expense and liability, but no action or inaction by the City
shall relieve CTE of its obligation to hold the City harmless as set forth in Section 7.7 of this
franchise. Prior to undertaking corrective effort, the City shall make a reasonable effort to
notify CTE, except no notice is needed if the City declares an emergency or determines a need
for expedient action. This remedy is supplemental and not alternative to any other municipal
right.
F. Whenever CTE damages or disturbs any area in or near City streets,
rights-of-way, paved area or public improvement, CTE stipulates that the City may, without
limitation:
(1) Require CTE to repave an entire lane or greater affected area within any
cut or disturbed location; and/or
(2) Require CTE to common trench with any other underground
installation in City streets or rights-of-way, with cost sharing to be negotiated between
the parties involved, or in the absence of agreement, as directed by the City in a non-
discriminatory manner.
G. All requirements of this Section pertaining to public property shall also
apply to the restoration of private easements and other private property.
H. If CTE causes any damage to private property in the process of
restoring facilities, CTE shall pay the owner of the property for such damage.
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I. All of CTE's work under this Section shall be done in strict compliance
with all applicable rules, regulations and ordinances of the City.
J. CTE shall perform all restoration work promptly.
4.9 City Right to Require Removal of Property.
A. At the expiration of the term for which this franchise is granted,
providing no extension or renewal is granted by the City, or upon the forfeiture or revocation
of this franchise, as provided for in this franchise, the City shall have the right to require CTE
to remove, at CTE's sole expense, all or any part of the multichannel video/cable
communications system from all City streets and rights-of-way within the Franchise Service
Area, where the abandoned facilities interfere with reasonable uses of City streets and rights-
of-way. If CTE fails to do so, the City may perform the work and collect the cost thereof from
CTE. The actual cost thereof, including direct and indirect administrative costs, shall be a lien
upon all plant and property of CTE effective upon filing of the lien with the Yakima County
Auditor.
B. Any order by the City Council to remove any of CTE's multichannel
video/cable communications system facilities shall be mailed to CTE not later than thirty (30)
calendar days following the date of expiration of this franchise. CTE shall file written notice
with the Clerk of the City Council not later than thirty (30) calendar days following the date of
expiration or termination of this franchise of its intention to remove any multichannel
video/cable communications system facilities intended to be removed and a schedule for
removal by location. The schedule and timing of removal shall be subject to approval and
regulation by the City. Removal shall be completed not later than twelve (12) months
following the date of expiration of this franchise.
C. CTE shall not remove any underground facilities which require
trenching or other opening of City streets or rights-of-way along the extension of the facilities
to be removed, except as hereinafter provided. CTE may voluntarily remove any underground
facilities from City streets and rights-of-way which have been installed in such a manner that
they can be removed without trenching or other opening of City streets and rights-of-way
along the extension of the facilities to be removed.
D. Subject to applicable law, CTE shall remove, at its sole cost and
expense, any underground facilities by trenching or opening City streets and rights-of-way
along the extension thereof or otherwise which is ordered to be removed by the City Council
based upon a determination, in the sole discretion of said Council, that removal is required in
order to eliminate or prevent a hazardous condition. Underground facilities in City streets and
rights-of-way that are not removed shall be deemed abandoned and title thereto shall be vested
in the City.
4.10 Emergency Repairs. In the event that emergency repairs to the multichannel
video/cable communications system are necessary, CTE shall notify the City of the need for
such repairs. CTE may immediately initiate such emergency repairs and shall apply for
appropriate permits the next business day following discovery of the emergency.
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4.11 City Right of Inspection. The City shall have the right to inspect and approve
all installation, construction, alteration or maintenance work performed by CTE within the
Franchise Service Area and to make such tests as it deems necessary to ensure compliance
with the terms and conditions of this franchise and other pertinent provisions of law, the cost
thereof to be paid solely by CTE, but no action or inaction by the City shall create any duty or
obligation by the City to inspect, test or approve any installation, construction, alteration or
maintenance work performed by CTE. In addition, the City may require CTE to furnish
certification from a qualified independent engineer that CTE's facilities are constructed in
accordance with good engineering practice and are reasonably protected from damage and
injury.
4.12 After -Acquired Facilities. CTE expressly acknowledges and agrees, by
acceptance of this franchise, that any multichannel video/cable communications system
facilities located within City streets or rights-of-way which are subsequently acquired by CTE
or upon addition or annexation to the City of any area in which CTE retains or acquires any
such facilities (if acquired prior to this original franchise grant) and which would have been
subject to this franchise and the permitting authority related thereto shall immediately be
subject to the provisions of this franchise and all permits related thereto.
4.13 Information. CTE hereby promises to maintain and supply to the City, at
CTE's sole expense, any information requested by the City to coordinate municipal functions
with . CTE's activities within City streets and rights-of-way. CTE shall provide such
information, upon request, either in hard copy and/or electronic format compatible with the
City's data base system, as now or hereafter existing, including the City's geographic
information service (GIS) data base. CTE shall keep the City informed of its long-range plans
so as to allow coordination with the City's long-range plans.
SECTION 5 - SYSTEM DESIGN AND STANDARDS
5.1 Initial Multichannel Video/Cable Communications System Construction.
5.1.1 Construction Schedule. A detailed construction schedule, which shall
be subject to City approval, shall be submitted by CTE to the appropriate City permitting
authority no later than forty-five (45) days prior to the commencement of construction. For
the purposes of this franchise, "commencement of construction," as finally determined by the
City if necessary, shall mean the beginning of installation of any part of the multichannel
video/cable communications system including, but not limited to, strand mapping, system
design, the construction of any facility, building or structure, or the stringing of any wire or
the laying of any conduit, or the installation of any active or passive electronic equipment to
facilitate the activation of the multichannel video/cable communications system.
5.1.2 Construction Timeline. CTE shall commence construction of the
multichannel video/cable communications system during the calendar year 2002 and shall
complete initial activation procedures within ( ) months of the effective date of
this franchise.
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5.2 Availability of Signals and Equipment. CTE shall, commencing with
completion of the initial construction of the multichannel video/cable communications
system, at a minimum:
(1) Make available to subscribers all signals that are required to be made
available by the FCC or as required by other applicable law;
(2) Distribute, in color, all television signals which are received in color
unless a substantial reason for non-compliance with this provision can be satisfactorily
demonstrated;
(3) Make available not less than 75 activated standard video channels, as
defined herein, or their technical equivalent, including all basic cable services;
(4) Make available parental control or "lock-out91 devices (audio and
visual) upon request by any subscriber and at a reasonable charge. These devices
should provide the greatest degree of parental discretion and control to prevent
unauthorized viewing of any premium channel or channels and, where technically and
practically feasible, non -premium channels as well;
(5) Make available upon request and RF switch (an AB switch) permitting
conversion from multichannel video/cable to antenna reception; and
(6) Upon request provide without charge one outlet of all multichannel
video/cable service to Yakima City Hall, the City Telecommunications Division
office, any public fire station, any public school facility and/or higher education
facility, and any other existing and/or future City facility as designated by the City,
passed by the multichannel video/cable communications system.
5.3 Equal and Uniform Service. CTE shall provide access to equal and uniform
multichannel video/cable service throughout the Franchise Service Area.
5.4 Emergency Alert Capability. CTE shall meet or exceed FCC guidelines in
providing the capability for the City to transmit an emergency alert signal and/or emergency
message in the event of a disaster or public emergency. Such emergency audio and video ,
override capability shall permit the City to interrupt programming from locations designated
by the City such that the City shall be able to simultaneously transmit an emergency alert
signal and/or emergency message on all channels available at the time on the multichannel
video/cable communications system. The City manager or his/her designee shall determine
when the emergency audio and video override is to be activated in response to actual or
impending emergency conditions. Emergency alert capability, as required herein, shall be
operational immediately upon completion of initial construction of the multichannel
video/cable communications system and throughout the term of this franchise.
5.5 Standby Power. CTE shall provide standby power generating capacity at the
multichannel video/cable communications system headend, or its technical equivalent, and at
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any and all hubs. CTE shall maintain standby power system supplies, rated at least at two (2)
hours duration, throughout the trunk and distribution networks. In addition, CTE shall have in
place throughout the term of this franchise a plan, and all necessary resources for
implementation of the plan, for dealing with outages in excess of two (2) hours. Such outage
plan and evidence of requisite implementation resources shall be presented to the City upon
request.
5.6 Provision of Bi -Directional Capability. CTE shall construct the upgraded
system with bi-directional capability throughout both the residential and any public agency
networks constructed by CTE throughout the term of this franchise.
5.7 Interactive Services. CTE shall construct its system to include the possibility
of providing interactive residential services. CTE shall provide such services when
technically and economically feasible.
5.8 Technical Standards. The technical standards used in the design,
construction, alteration, maintenance and operation of the multichannel video/cable
communications system shall comply, at a minimum, with the applicable technical standards
promulgated by the Federal Communications Commission ("FCC") or the Washington
Utilities and Transportation Commission ("WUTC"), as now or hereafter constituted or
amended, and any and all other applicable federal, state or local law, regulations or technical
standards which may currently or may subsequently concern any services which CTE provides
or may provide using the multichannel video/cable communications system. The City may
establish reasonable technical standards for the performance of the multichannel video/cable
communications system if the FCC or WUTC permit it to do so or if the FCC or WUTC
standards are repealed in whole or in part.
5.9 Performance Testing. CTE shall perform all tests of the multichannel
video/cable communications system as required by and at the intervals as required by the FCC
and/or any and all federal, state and local law or regulations, and all other tests reasonably
necessary to determine compliance with technical standards required by this franchise.
5.10 Line Extension Policy. CTE or any third party user shall make multichannel
video/cable service available, within sixty (60) days and at standard installation and service
rates, for every potential subscriber:
(1) Whose dwelling is one of a minimum of twenty-five (25) dwelling units
per linear mile, or eight (8) dwelling units per one-quarter ('/a) mile, from the nearest
existing multichannel video/cable communications system plant; or
(2) Whose dwelling is situated such that facilities constructed from the
nearest existing multichannel video/cable communications system plant would pass an
average of twenty-five (25) homes per linear mile; or
(3) Whose dwelling is situated in a one -square ('/4) mile section, as such
sections are described in City plat maps, containing or contiguous to existing plant,
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within six (6) months after such section reaches a density of two hundred fifty (250)
dwelling units available for multichannel video/cable connection; or
(4) Where connection to the potential subscribers dwelling from
multichannel video/cable communications system plant constructed as required under
this franchise requires no more than a two hundred (200) foot drop cable.
5.10.1 Isolated Areas. Potential subscribers requesting service but requiring
service extended beyond the standard installation and service provisions provided for in this
franchise shall be provided by CTE the first two hundred (200) feet of cable at the prevailing
installation rate. Cable and service required beyond the initial two hundred (200) feet will be
provided under the following circumstances:
(1) Where the potential subscriber, or any group including the potential
subscriber, pays in advance the direct and incremental cost of extending the line and
making the installation; or
(2) Where the potential subscriber and CTE reach an independent
agreement for the provision of service, so long as the agreement does not involve any
violation of the requirement and standards of this franchise; or
5.11 Right of Inspection of Construction. The City shall have the right to inspect
all construction or installation work performed within the Franchise Service Area and to make
such test as it shall find necessary to ensure compliance with the terms of this Ordinance, the
franchise granted by this Ordinance, and other pertinent provisions of law.
SECTION 6 - CUSTOMER SERVICE POLICIES
6.1 City Reservation of Rights. The City reserves the right to enforce any and all
customer service and consumer protection standards at any time that such standards are
established by state or federal law or regulation as applicable to multichannel video/cable
communications system operations should such right be granted to the City by such state or
federal law or regulation.
6.2 Response to Customers. CTE or any third party user shall promptly respond
to all requests from customers of the multichannel video/cable communications system for
service, repair, installation, information or any other such reasonable and appropriate requests
and shall render effective service, make repairs promptly and interrupt service only for good
cause and for the shortest time possible as required by state and/or federal law or regulation.
CTE or any third party user shall promptly respond to complaints from customers of the
multichannel video/cable communications system and shall attempt to promptly resolve such
complaints as required by state and/or federal law or regulation.
6.3 Complaints. CTE hereby acknowledges the City's interest in the prompt
resolution of all complaints made to the City regarding CTE's operation in City streets and
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rights-of-way and the provision of multichannel video/cable service and CTE and any third
party user shall work in close cooperation with the City to resolve such complaints.
6.4 City Franchise Contact Identified. CTE or any third party user shall provide
all appropriate and pertinent contact information for the person identified by the City as
responsible for handling questions and complaints for the City regarding CTE's operation in
City streets and rights-of-way and CTE's or any third party user's provision of multichannel
video/cable services to any and all customers of the multichannel video/cable communications
system and any interested persons. Said information shall be provided to such customers in
each billing statement and in each customer service agreement and manual as provided for in
Section 6.4 of this franchise in a format acceptable to the City.
6.5 Customer Service Agreement and Manual. CTE or any third party user shall
provided to each subscriber a comprehensive customer service agreement and a customer
manual for use in establishing subscriber service. Such agreement and such manual shall, at a
minimum, contain the following:
(1) The procedure for investigation and resolution of customer complaints;
(2) Services to be provided and rates for such services;
(3) Billing procedures;
(4) Service termination procedures;
(5) Change in service notification procedures;
(6) Liability specifications;
(7) Converter/equipment policy;
(8) Breach of Agreement specifications;
(9) Information on how complaints are handled; and
(10) The pertinent contact information of the person identified by the City as
responsible for handling questions and complaints for the City regarding CTE's
operation in City streets and rights-of-way and CTE's or any third party users
provision of multichannel video/cable services.
Such agreement and such manual shall be provided to each subscriber at the time of
initial and any re -connection hookup and thereafter not more than thirty (30) days following
any update of the manual reflecting material policy changes, and/or at any time as such
agreement and/or such manual is requested by any subscriber.
6.6 Categories of Programming Service. Throughout the term of this franchise,
CTE or any third party user shall provide broad categories of video programming substantially
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equal to or an improvement upon what is provided at the time CTE or any third party user
initially provides multichannel video/cable service. CTE and the City agree that the
programming described herein represents broad categories of video programming within the
meaning of 47 U.S.C. 544 (b) (2) (B). CTE and any third party user shall provide video
programming in at least the following broad categories:
(1) Local broadcast and any other signals that are required to be made
available by the FCC;
(2) Distant broadcast;
(3) News and information;
(4) Sports;
(5) General entertainment;
(6) Arts, culture, performing arts;
(7) Children/family;
(8) Foreign language/ethnic programming;
(9) Public, Educational and Government Access programming; and
(10) Religious/spiritual programming.
6.7 Notice of Change in Services. Throughout the term of this franchise, CTE or
any third party user shall provide the City and all subscribers written notice of any intended
deletions, additions or other modifications to the multichannel video/cable services authorized
by this franchise to be provided by CTE or any third party user not less than thirty (30) days
prior to such changes being implemented.
6.8 Regulation of Rates and Charges. The City expressly reserves the right to
regulate rates and charges for multichannel_ video/cable services and equipment in accordance
with and to the extent provided by applicable federal or state laws, rules or regulations.
6.9 Rate and Charges Discrimination Prohibited. CTE or any third party user
shall not discriminate among subscribers with regard to rates and charges made for any
multichannel video/cable service based on considerations of race, color, creed, sex, marital
status, economic status, national origin, sexual preference or neighborhood of residence and
for purposes of setting rates and charges, no categorization of subscribers shall be made by
CTE or any third party user on the basis of such considerations. PROVIDED, however, CTE
or any third party user shall be permitted to establish discounted rates and charges for
providing multichannel video/cable service to low-income handicapped and/or low-income
elderly subscribers.
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6.10 Notice of Change in Rates and Charges. Throughout the term of this
franchise, CTE or any third party user shall provide the City and all subscribers written notice
of any intended deletions, additions or other modifications to the rates and charges for
multichannel video/cable services authorized by this franchise to be provided by CTE or any
third party user not less than thirty (30) days prior to such changes being implemented.
Nothing in this Section, however, shall be construed to prohibit the reduction or waiving of
certain rates or charges in conjunction with promotional campaigns for the purpose of
attracting subscribers.
6.11 Continuity of Service Mandatory. It shall be the right of all subscribers of
the multichannel video/cable communications system to receive all available services insofar
as their financial and other obligations to CTE or any third party user are honored. In the
event that CTE elects to overbuild, rebuild, modify or sell the multichannel video/cable
communications system, or the City revokes or fails to renew the franchise, CTE shall make
its best effort to ensure that all subscribers of the multichannel video/cable communications
system receive continuous, uninterrupted service regardless of the circumstance. In the event
of expiration, purchase, lease -purchase, condemnation, acquisition, taking over or holding of
plant and equipment, sale, lease or other transfer to any other person, including any other
grantee of a cable communications system franchise or a multichannel video/cable
communications system franchise, CTE shall cooperate fully to operate the multichannel
video/cable communications system in accordance with the terms and conditions of this
Ordinance and the franchise granted by this Ordinance for a temporary period sufficient in
length to maintain continuity of service to all subscribers of the multichannel video/cable
communications system.
6.12 Obscenity. Subject to applicable federal law, CTE or any third party user shall
not transmit over the multichannel video/cable communications system programming which is
obscene or otherwise unprotected by the Constitution of the United States, provided,
however, CTE or any third party user shall in no way be responsible for programming over
which it has no editorial control including Public, Educational and Government Access
programming.
SECTION 7 - COMPENSATION AND FINANCIAL PROVISIONS
7.1 Taxes and Fees.
7.1.1 City Occupation Tax on Utilities. CTE hereby stipulates that all
business activities in the City as identified in Sections 1.6, 1.9, 1.18, 1.25, 1.29, 2.4 and 2.5 of
this franchise are taxable activities subject to the six percent (6%) rate to be included in gross
receipts received, as imposed under the City's occupation taxes on utilities, adopted in Yakima
Municipal Code Section 5.50.050. Therefore, throughout the term of this franchise, CTE and
any third party user shall include all revenue received from all of its business activities within
the City as taxable activities, subject to the six percent (6%) rate imposed under the City's
occupation taxes on utilities as adopted in Yakima Municipal Code Section 5.50.050.
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7.1.2 Franchise Fee. Throughout the term of this franchise, CTE and any
third party user shall pay to the City an amount equal to five percent (5%) of annual gross
revenues as a franchise fee. If any law, regulation or valid rule alters the five percent (5%)
franchise fee ceiling enacted under the Cable Act, the CTE shall, at the request of the City,
enter negotiations to review relevant provisions of this franchise related to franchise fees.
7.1.3 Other Fees.
A. CTE shall pay the City all reasonable costs of granting, enforcing or
reviewing the provisions of this franchise as ordered by the City manager or designee, whether
as a result of accrued in-house staff time or out-of-pocket expenses or administrative costs.
Such obligation further includes municipal fees related to receiving and approving permits,
licenses or other required approvals, inspecting plans and construction, or relating to the
preparation of a detailed statement pursuant to RCW 43.21C.
B. Upon request of CTE, the City will submit proof of any charges or
expenses incurred as defined in Section 7.1.3, A of this franchise. Said charges or expenses
shall be paid by CTE no later than thirty (30) days after CTE's receipt of the City's billing
thereof.
C. CTE and any third party user shall pay all other taxes and fees
applicable to its operations and activities within the City, all such obligations also being a
condition of this franchise. Such payments shall not be deemed franchise fees or payments in
lieu thereof.
7.2 Payments.
A. CTE shall make all required. payments in the form, intervals and
manner requested by the City director of budget and finance and shall furnish the City any and
all information related to the City's revenue collection functions reasonably requested.
B. City occupation tax on utilities payments and franchise fee payments
and all other payments required by this franchise shall be transmitted by CTE and any third
party user monthly by electronic funds transfer to such City of Yakima bank account as may
be designated by the City director of budget and finance. Said payments shall be received by
the City no later than the 25th of each month for the preceding calendar month. Not later than
the date of each payment, CTE and any third party user shall file with the City a written
statement signed by the appropriate CTE and/or third party user corporate official which
identifies in detail the sources and amounts of gross revenues earned by CTE and/or any third
party user during the month for which payment is made, in accordance with Section 8.1 of this
franchise. No acceptance of any payment by the City shall be construed as an accord that the
amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed
as a release of any claim which the City may have for further or additional sums payable under
the provisions of this franchise.
C. Neither current nor previously paid utility taxes nor franchise fees may
be subtracted from the gross revenue amount upon which utility tax and/or franchise fee
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payments are calculated and due for any period. Nor shall any license fee(s) paid by CTE be
subtracted from gross revenues for purposes of calculating utility tax payments.
D. No term or condition of this franchise shall in any way modify or affect
CTE's or any third party user's obligation to pay franchise fees to the City. Although the total
sum of franchise fee payments and additional commitments set forth elsewhere in this
franchise may total more than five percent (5%) of CTE's or any third party user's gross
revenues in any twelve (P2) month period, CTE and any third party user agree that the
additional commitments herein are not franchise fees as defined under any federal law, nor are
they to be offset or credited against any franchise fee payments due to the City.
E. Any utility taxes or franchise fees or other payments required by this
franchise owing pursuant to this franchise which remain unpaid for more than ten (10) days
after the dates specified herein shall be delinquent and shall thereafter accrue interest at twelve
percent (12%) per annum or two percent (2%) above prime lending rate as quoted by major
Seattle banks, whichever is greater.
7.3 Financial Records.
A. CTE and any third party user shall manage operations in accordance
with a policy of keeping books and records open and accessible to the City. The City shall
have the right, as necessary or desirable for effectively administering and enforcing this
franchise, to inspect at any time during normal business hours upon thirty (30) days prior
written notice, all books, records, maps, plans, financial statements, service complaint logs,
performance test results, records required to be kept by CTE and/or any parent company of
CTE and/ or any third party user pursuant to the rules and regulations of the FCC, WUTC and
other regulatory agencies, and other like materials CTE and/or any parent company of CTE
and/or any third party user which directly relate to the operation of this franchise.
B. Access to the aforementioned records referenced in Section 7.3, A shall
not be denied by CTE or any third party user to representatives of the City on the basis that
said records contain "proprietary" information. However, to the extent allowed by
Washington law, the City shall protect the trade secrets and other confidential information of
CTE and/or any parent company of CTE and/or any third party user.
C. CTE and any third party user hereby agree to meet with a representative
of the City upon request to review its methodology of record keeping, financial reporting,
computing utility tax payments and other procedures, the understanding of which the City
deems necessary for understanding the meaning of such reports and records.
D. The City agrees to request access to only those books and records, in
exercising its rights under this franchise, which it deems reasonably necessary for the
enforcement and administration of this franchise.
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7.4 Auditing.
A. The City or its authorized agent may at any time conduct an
independent audit of the revenues of CTE and/or any third party user in order to verify the
accuracy of utility tax and franchise fee payments made to the City. CTE and each parent
company of CTE and/or any third party user shall cooperate fully in the conduct of such audit.
In case of audit, the City director of budget and finance may require CTE and/or any third
party user to furnish a verified statement of compliance with CTE's and/or any third party
user's obligations or in response to any questions. Said certificate may be required from an
independent certified public accountant at CTE's and/or any third party user's sole expense.
All audits will take place on CTE's and/or any third party user's premises or at offices
furnished by CTE and/or any third party user, which shall be a location within the City of
Yakima. CTE and/or any third party user agree, upon request of the City director of budget
and finance, to provide copies of all documents filed with any federal, state or local regulatory
agency, to mail to the City on the same day as filed, postage prepaid, affecting any of CTE's
and/or any third party user's facilities or business operations in City.
B. In the event it is determined, as a result of an audit conducted by the
City or its authorized agent, that CTE and/or any third party user has underpaid City utility
taxes and/or franchise fees by five percent (5%) or more than was due the City for any given
period, then CTE and/or any third party user shall reimburse the City for the entire cost of
such audit and any back utility taxes with interest accrued at twelve percent (12%) per annum
or two percent (2%) above prime lending rate as quoted by major Seattle banks, whichever is
greater, within thirty (30) days of the completion and acceptance of the audit by the City.
7.5 Insurance.
7.5.1 Coverages. CTE shall maintain, throughout the term of this franchise,
liability insurance insuring CTE, its officers, employees and agents, with regard to all claims
and damages specified in Section 7.5 herein, in the minimum amounts as follows:
(1) Commercial Liability Insurance.
On or before the date this franchise is fully executed by the parties, CTE shall
provide the City with a certificate of insurance as proof of commercial liability
insurance with a minimum liability limit of One Million Dollars ($1,000,000)
combined single limit bodily injury and property damage. This coverage will have a
per job aggregate endorsement and Washington stop gap coverage. Said certificate of
insurance shall clearly state who the provider is, the amount of coverage, the policy
number, and when the policy and provisions provided are in effect. Said policy shall
be in effect for the duration of this franchise. The policy shall name the City, its
elected and appointed officials, officers, agents and employees as additional insureds,
and shall contain a clause that the insurer will not cancel or change the insurance
without first giving the City thirty (30) calendar days prior written notice (any
language in the clause to the effect of "but failure to mail such notice shall impose no
obligation or liability of any kind upon the company" shall be crossed out and initialed
by the insurance agent). The insurance shall be with an insurance company or
companies rated A -VH or higher in Best's Guide and admitted in the State of
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Washington. If CTE uses any contractors and/or subcontractors to perform any of the
work referenced in this franchise, such contractors and/or subcontractors shall
maintain the same minimum limits of liability and comply with all other provisions
discussed above in this subsection entitled "Commercial Liability Insurance."
(2) Commercial Automobile Liability Insurance.
On or before the date this franchise is fully executed by the parties, CTE shall
provide the City with a certificate of insurance as proof of commercial automobile
liability insurance with a minimum liability limit of One Million Dollars ($1,000,000)
combined single limit bodily injury and property damage. Said certificate of insurance
shall clearly state who the provider is, the amount of coverage, the policy number, and
when the policy and provisions provided are in effect. Said policy shall be in effect for
the duration of this franchise. The policy shall name the City, its elected and
appointed officials, officers, agents and employees as additional insureds, and shall
contain a clause that the insurer will not cancel or change the insurance without first
giving the City thirty (30) calendar days prior written notice (any language in the
clause to the effect of "but failure to mail such notice shall impose no obligation or
liability of any kind upon the company" shall be crossed out and initialed by the
insurance agent). The insurance shall be with an insurance company or companies
rated A -VII or higher in Best's Guide and admitted in the State of Washington. If CTE
uses any contractors and/or subcontractors to perform any of the work referenced in
this franchise, such contractors and/or subcontractors shall maintain the same
minimum limits of liability and comply with all other provisions discussed above in
this subsection entitled "Commercial Automobile Liability Insurance."
(3) Umbrella Liability Insurance.
CTE and its contractors and/or subcontractors shall maintain umbrella liability
insurance coverage, in an occurrence form, over underlying commercial liability and
automobile liability. On or before the date this franchise is fully executed by the
parties, CTE shall provide the City with a certificate of insurance as proof of umbrella
coverage with a minimum liability limit of Three Million Dollars ($3,000,000). The
insurance shall be with an insurance company or companies rated A-Vll or higher in
Best's Guide and admitted in the State of Washington.
Providing coverage in the amounts as set forth above shall not be construed to
relieve CTE from liability in excess of those limits.
7.5.2 Proof of Insurance. CTE shall file with the City copies of all
certificates of insurance showing up-to-date coverages, additional insured coverages and
evidence of payment of premiums as set forth above. CTE shall file and maintain a certificate
of insurance along with written evidence of payment of the required premiums with the
manager of the City Telecommunications Division, or his or her designee.
7.5.3 Alteration of Insurance. Insurance coverages, as required by this
franchise, shall not be changed, cancelled or otherwise altered without approval of the City.
CTE shall provide the City no less than thirty (30) days prior written notice of any such
proposed change, cancellation or other alteration. The City may, at its option, review all
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insurance coverages. If it is determined by the City that circumstances require and that it is
reasonable and necessary to increase insurance coverage and liability limits above such
coverage and limits as are set forth in this franchise, in order to adequately cover the risks of
the City, CTE and CTE's officers, agents and employees, the City may require additional
insurance to be acquired by CTE. Should the City exercise its right to require additional
insurance, the City will provide CTE with written notice.
7.5.4 Failure to Procure. CTE acknowledges and agrees, by acceptance of
this franchise, that failure to procure and maintain the insurance coverages as detailed in
Section 7.5.1 of this franchise shall "constitute a material breach of this franchise, as provided
for in Section 2.10, B, 3) of this franchise. In the event of such failure to procure and
maintain the referenced insurance coverages, the City may immediately suspend CTE's
operations under this franchise, terminate or otherwise revoke this franchise and/or, at its
discretion, procure or renew such insurance in order to protect the City's interests and be
reimbursed by CTE for all premiums in connection therewith.
7.6 Performance Bond. Prior to the effective date of this franchise, CTE shall
furnish to the City proof of the posting of a performance bond running to the City, with good
and sufficient surety approved by the City, in the penal sum of One Hundred Thousand
Dollars ($100,000), conditioned that CTE shall well and truly observe, fulfill and perform
each term and condition of this franchise. CTE shall pay all premiums charged for said bond.
Said bond shall be effective to continue obligation for the term of this franchise, including any
extensions, and thereafter until CTE or any successor or assign of CTE has liquidated all of its
obligations with the City that may have arisen from the acceptance of this franchise by CTE or
from its exercise of any privilege herein granted. Said bond shall contain a provision stating
that said bond shall not be terminated or otherwise allowed to expire without thirty (30) days
prior written notice having been provided to the City. The form and content of said bond and
any associated documents shall be approved in advance by the City Attorney, or his or her
designee. CTE shall provide a duplicate copy of said bond to the City and said duplicate copy
shall be kept on file at the City Telecommunications Division office or its successor(s).
Neither the provisions of this Section nor any performance bond accepted by the City pursuant
thereto, nor any damages or other amounts recovered by the City thereunder, shall be
construed to excuse faithful performance by CTE or to limit liability of CTE under this
franchise either to the full amount of the performance bond or otherwise, except as otherwise
provided herein.
7.7 Indemnity, No Estoppel, No Duty.
A. CTE shall, at its sole expense, protect, defend, indemnify and hold
harmless the City, its elected officials, and in their capacity as such, the officials, agents,
officers and employees of the City from any and all claims, lawsuits, demands, actions,
accidents, damages, losses, liens, liabilities, penalties, fines, judgments, awards, costs and
expenses arising directly or indirectly from or out of, relating to or in any way connected with
the performance or non-performance, by reason of any intentional or negligent act, occurrence
or omission of CTE, whether singularly or jointly with others, its representatives, permittees,
employees, contractors or subcontractors, whether or not such acts or omissions were
authorized or contemplated by this franchise or applicable law, including by not limited to the
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construction, installation, maintenance, alteration or modification of the multichannel
video/cable communications system; arising from actual or alleged injury to persons or
property, including the loss of use of property due to an occurrence, whether or not such
property is physically damaged or destroyed; arising out of or alleged to arise out of any claim
for damages for CTE's invasion of privacy, defamation of any person, firm or corporation, or
the violation or infringement of any copyright, trademark, trade name, service mark or patent,
or of any other right of any person, firm or corporation; arising out of or alleged to arise out of
CTE's failure to comply with any and all provisions of any statute, regulation or resolution of
the United States, State of Washington or any local agency applicable to CTE and its business.
Nothing herein shall be deemed to prevent the parties indemnified and held harmless herein
from participating in the defense of any litigation by their own counsel at such parties'
expense. Such participation shall not under any circumstances relieve CTE from its duty of
defense against liability or of paying any judgment entered against such party.
Notwithstanding any provision of this Section to the contrary, CTE shall not be obligated to
indemnify, defend or hold the City harmless to the extent any claim, demand, lien, damage or
liability arises out of or in connection with negligent acts or omissions of the City.
B. CTE hereby waives immunity under Title 51 RCW and affirms that the
City and CTE have specifically negotiated these provisions, as required by RCW 4.24.115, to
the extent that it may apply.
C. Whenever any judgment is recovered against the City or any other
indemnitee for any such liability, costs, or expenses, such judgment shall be conclusive
against CTE, not only as to the amount of such damage, but as to its liability, provided CTE
has reasonable notice or actually knew, or should have known, of the pendency of such suit.
Under such circumstances, CTE may also request the opportunity to defend or participate in
the suit with legal counsel of its choice, at its expense, said request not to be unreasonably
denied.
D. No action, error or omission, or failure to act by the City, its agents,
officers, officials or employees, in connection with administering its rights, duties or
regulatory functions related to this franchise shall be asserted by CTE, directly, indirectly or
by way of seeking indemnification or as an assertion that the City has waived or is estopped to
assert any municipal right hereunder, against the City, its boards, departments, divisions,
officers, officials or employees.
E. It is not the intent of this franchise to acknowledge, create, imply or
expand any duty or liability of the City with respect to its role as a franchising authority, in the
exercise of its police powers or for any other purpose. Any City duty nonetheless deemed
created shall be a duty to the general public and not to any specific party, group or entity.
7.8 Public, Educational and Government Access Channels.
A. Upon completion of initial construction of the multichannel video/cable
communications system, as described in Section 5.1 of this franchise, and prior to activation
of the system and/or provision of multichannel video/cable service to any subscriber, and
thereafter throughout the term of this franchise, CTE and/or any third party user shall make
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available four (4) standard video channels or their technical equivalents on the multichannel
video/cable communications system for Public, Educational and/or Government (PEG)
Access purposes. The City and CTE agree that two (2) of the four (4) PEG Access channels
shall be designated for Educational Access purposes under control of a provider designated by
the City.
B. Additional PEG Access channels beyond the initial four (4), up to a
maximum number equivalent to ten percent (10%) of the total available multichannel
video/cable communications system channel capacity, shall be made available for PEG
Access programming each time it occurs that the currently channels being used for PEG
Access programming are airing first run programming during at least thirty-two (32) hours per
week between 10:00 a.m. and 10:00 p.m. during any consecutive ten (10) weeks running, on
average, and when the City requests such a channel be made available. The replay of
programs for not more than two (2) per week shall be considered first run programming.
If the conditions described herein are met, CTE and/or any third party user
shall, within six (6) months following a request by the City, provide a new specifically
designated channel for PEG Access. CTE shall continue to provide the additional channel for
as long as the triggering criteria stated herein continue without a significant break of ten (10)
weeks or more. If any channel in addition to two channels is designated for community use,
but, after one year, such channel is not programmed at least twenty-five percent (25%) of the
hours between 10:00 a.m. and 10:00 p.m. with first run programming, the Public Access
provider designated by the City shall, within six (6) months of receiving a written request
from CTE, group all Public Access programming on that channel in one contiguous block of
time of the provider's choosing. The remaining programming time on such channel shall then
revert back to CTE and/or any third party user for its unrestricted use within the terms and
conditions of this franchise.
C. CTE and/or any third party user shall make every reasonable effort to
coordinate the airing of PEG Access programming over the multichannel video/cable
communications system at the same time and on the same channel designations as such
programming is airing on other similarly situated systems within the community as of the
effective date of this franchise. Throughout the term of this franchise, CTE and/or any third
party user shall not reallocate PEG Access channels without providing not less than six (6)
months prior written notice to the City.
D. All PEG Access channels shall be provided to each subscriber as part of
the basic service.
7.9 Public and Government Access Facilities Lease Subsidy. CTE and/or any
third party user, throughout the term of this franchise, shall share the lease costs incurred for
facilities to house Public and Government Access. The lease cost share subsidy shall initially
be established at a rate of one (1) dollar per month per subscriber of the multichannel
video/cable communications system as of the effective date of this franchise but will be
reviewed annually by the City and adjusted as necessary based on the Consumer Price Index
for Yakima County, Washington or the next narrowest geographic area including Yakima
County, Washington. CTE and/or any third party user shall make payments to the City of
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such lease cost share subsidies on a monthly basis on a schedule as described in Section 7.2 of
this franchise; such payments shall be separate and apart from payments related to any other
taxes or fees. For purposes of calculating the monthly lease cost share subsidy payment
amount, the subscriber count used shall be an average of the subscriber counts for the previous
4 calendar months. CTE and/or any third party user may pass through to subscribers on a pro -
rata basis any costs associated with the terms and conditions in Section 7.9 of this franchise.
Nothing in this Section shall be construed to require, as a condition of this franchise, CTE
and/or any third party user to pass through such costs to subscribers as are described in this
Section. Such Public and Government Access facilities as are described in this Section shall
be made available for the exclusive use of the City's designated Public and Government
Access provider.
7.10 Capital Grant for Public and Government Access Equipment and
Facilities. CTE and/or any third party user shall provide to the City a capital grant to be used
for costs associated with equipment and/or facilities associated with the provision of Public
and Government Access services. CTE and/or any third party user shall make grant payments
on an annual basis at a rate initially established, as of the effective date of this franchise, at
three (3) dollars per year per subscriber of the multichannel video/cable communications
system. The grant payment rate will be reviewed annually by the City and adjusted as
necessary based on the Consumer Price Index for Yakima County, Washington or the next
narrowest geographic area including Yakima County, Washington. For purposes of
calculating the annual grant payment amount, the subscriber count used shall be an average of
the subscriber counts for the previous 12 calendar months. CTE and/or any third party user
may pass through to subscribers on a pro -rata basis any costs associated with the terms and
conditions in Section 7.10 of this franchise. Nothing in this Section shall be construed to
require, as a condition of this franchise, CTE and/or any third party user to pass through such
costs to subscribers as are described in this Section.
The first grant payment shall be made to the City not later than ninety (90) days
following the one (1) year anniversary of the effective date of this franchise or the one (1) year
anniversary of the initial activation of the multichannel video/cable communications system,
whichever occurs earlier, and annually thereafter throughout the term of this franchise.
7.11 Return Feeds. CTE and/or any third party user shall provide all necessary
technical equipment and support to provide and maintain high quality return feeds of signals
from all PEG Access facilities located within the franchise service area to the multichannel
video/cable communications system headend. Additionally, upon request of the City, CTE
and/or any third party user shall provide all necessary technical equipment and support the
establishment of "access points" to the multichannel video/cable communications system in
order to facilitate remote telecasting by the City -designated PEG Access providers. The City
agrees that it will not request more than twenty (20) such "access points" be provided by CTE
and/or any third party user within the first twelve (12) months following the initial activation
of the multichannel video/cable communications system. Once twenty (20) such "access
points" have been activated, additional "access points" shall be activated at the request of the
City but at no point shall exceed four (4) additional "access point" activations per year unless
agreed to by CTE and/or any third party user.
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SECTION 8 — REPORTING REQUIREMENTS
All reports required under Section 8 of this franchise may be requested by the City to be
provided by CTE and/or any third party user in hard copy and/or electronic format compatible
with City databases, including, but not limited to, the GIS system.
8.1 Monthly Reports. As provided for in Section 5.50.090 of the Yakima
Municipal Code, within twenty-five (25) calendar days after the end of the previous month,
CTE and/or any third party user shall submit to the City a completed form reporting any and
all revenues for the previous month. Said reports shall be verifiedby an officer or other
authorized representative of CTE and/or any third party user. Said reports shall contain an
accurate statement in summarized form, as well as in detail, of CTE's and/or any third party
user's gross revenues and the computation basis and method. These reports shall be in a form
reasonably required by the City. The City may, from time to time, make such reasonable
amendments to the forms as are required to ensure that all gross revenues are reported clearly
and accurately.
8.2 Annual Reports. Not later than sixty (60) days following the end of CTE's
and or any third party user's fiscal year each year, CTE and/or any third party user shall
present, at its sole expense, a written report to the City which shall include:
(1) Full financial statements for the previous year, including income
statement, balance sheet, cash flow statement, and appropriate explanatory footnotes,
for Central Telecommunications East, Inc. and /or any third party user, and a full
income statement with appropriate explanatory footnotes for the multichannel
video/cable communications system with specific breakouts for the system within the
corporate limits of the City of Yakima. All financial statements shall be certified by
an officer or other authorized representative of CTE and/or any third party user to be
an accurate reflection of GTE's and/or any third party user's books and records. In the
event any audited financial report has not been published by the date due under this
Section, then the audited financial report shall be deemed presented on time if
presented within thirty (30) days after publication.
(2) A summary of the previous year's activities for the franchise service
area including, but not necessarily limited to, the total number of subscribers receiving
any multichannel video/cable service via the multichannel video/cable
communications system, the total number of subscribers of each category of service
and any services added or dropped.
(3) A current list of all of GTE's and/or any third party user's officers and
directors or partners, if any, including postal addresses, telephone numbers and, where
applicable, electronic mail addresses.
(4) The names and business postal addresses, telephone numbers and,
where applicable, the electronic mail addresses of the multichannel video/cable
communications system's local manager and engineer.
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(5) Complete and accurate maps of the multichannel video/cable
communications system including the location of facilities.
(6) A description of future plans by CTE and/or any third party user to
expand or alter the multichannel video/cable communications system and/or expand or
alter services provided over the multichannel video/cable communications system.
8.3 Monitoring and Compliance Reports. Only upon request of the City, but no
more than once per year, CTE shall provide a written report of any and all technical
performance tests for the multichannel video/cable communications system required by the
FCC, WUTC or any other governmental agency having jurisdiction over the multichannel
video/cable communications system.
8.4 Additional Reports. CTE and/or any third party user shall prepare and furnish
to the City or any other entity exercising lawful regulatory authority in connection with this
franchise, at the times and in the form prescribed by the City or such other regulatory entity,
such additional reports with respect to CTE's and/or any third party user's operations, affairs,
transactions or property, as may be reasonably necessary and appropriate to the performance
of the rights, functions or duties of the City or such other regulatory entity in connection with
this franchise.
8.5 Communication with Regulatory Agencies. CTE and/or any third party user
shall simultaneously file with the City a copy of each petition, application, tariff, report or any
other communication related to the multichannel video/cable communications system
transmitted by CTE and/or any third party user to, or received by CTE and/or any third party
user from, any federal, state or other regulatory commissions or agencies having competent
jurisdiction to regulate the construction or operation of the multichannel video/cable
communications system, including, specifically, the FCC and the WUTC. In addition, CTE
and its affiliates and/or any third party user shall within ten (10) days of any communication
transmitted by CTE and/or any third party user to, or received by CTE and/or any third. party
user from, any judicial or regulatory agency regarding any alleged or actual violation of a law,
regulation or other requirement related to the multichannel video/cable communications
system, provide the City a copy of the communication, whether specifically requested by the
City to do so or not.
8.6 Preservation of Confidential Information. The City shall protect
information provided to the City by CTE and/or any third party user designated as confidential
or proprietary by CTE and/or any third party user, given such information had been so
designated at the time it was provided to the City, to the maximum extent permissible under
Chapter 42.17 RCW, or as provided by other state law as it may now or hereafter exist.
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SECTION 9 — REMEDIES AND PROCEDURE FOR REMEDYING FRANCHISE
VIOLATIONS
9.1 Remedies for Franchise Violations.
A. In addition to the remedies set forth elsewhere in this franchise, the City
shall have the right to assert any or all of the following remedies in the event CTE violates or
defaults on, as determined by the City, any provision of this franchise:
(1) Drawing upon or foreclosing all or any part of any security provided
under this franchise, including without limitation the faithful performance bond
provided for under Section 7.6 herein; PROVIDED, however, such drawing or
foreclosure shall be only in such a manner and in such amount as the City reasonably
determines is necessary to remedy the violation or default. Should the City take such
action as described herein, CTE shall be responsible for all direct and actual costs
related to such action, including, but not limited to, legal and administrative costs
incurred by the City;
(2) Commence an action at law for monetary damages or seek other
equitable relief;
(3) In the case of substantial violation or default, as determined by the City,
of a material provision of this franchise, declare this franchise to be revoked;
(4) Seek specific performance of any provision of this franchise, which
reasonably lends itself to such remedy, as an alternative to seeking damages.
B. In determining which, remedy or remedies, as set forth herein, are
appropriate, the City shall take into consideration the nature and extent of the violation or
default, the remedy needed to prevent such violations or defaults from occurring in the future,
whether CTE has a history of previous violations of the same or similar kind and such other
considerations as are appropriate under the circumstances.
9.2 Procedure for Remedying Franchise Violations.
9.2.1 Notice of Violation. In the event the City determines CTE has not
complied with any term or condition of this franchise, the City shall notify CTE of the exact
nature of the alleged noncompliance.
9.2.2 CTE's Right to Cure or Respond. CTE shall have thirty (30) days
from receipt of notice by the City of any alleged noncompliance with any term or condition of
this franchise to:
(1)
Respond to the City contesting the assertion of noncompliance; or
(2) Cure such violation or default or, in the event that by the nature of the
violation or default such violation or default cannot be cured within a thirty (30) day
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period, initiate reasonable steps to remedy such violation or default and notify the City
of the steps being taken and the projected date such remedy will be completed.
9.2.3 Public Hearing. In the event CTE fails to respond to a notice, as
described herein, or in the event CTE fails to cure such violation or default pursuant to the
procedures set forth herein, the City shall schedule a public hearing to investigate any alleged
violation or default. The City shall provide CTE twenty (20) calendar days notice of the time
and place of such hearing and provide CTE an opportunity to be heard at such hearing.
9.3 Enforcement. In the event the City, after such hearing as described in
subsection 9.2.3 of this franchise has been conducted, upholds its determination that CTE has
violated or defaulted on any provision of this franchise, the City may impose any of the
remedies set out in Section 9.1, A of this franchise.
9.4 Failure to Enforce. CTE shall not be relieved of any of its obligations to
comply promptly with any provision of this franchise by reason of any failure of the City to
enforce prompt compliance, and the City's failure to enforce shall not constitute a waiver of
rights or acquiescence in CTE's conduct.
9.5 Acts of Nature. CTE shall not be held in violation, default or noncompliance
with the provisions of this franchise, nor suffer any enforcement or penalty related thereto,
where such violation, default or noncompliance is caused by acts of nature, power outages or
other events reasonably beyond its ability to control. However, CTE shall take all reasonable
steps necessary to provide service despite such occurrences.
9.6 Alternative Remedies. Nothing in this franchise shall be deemed to bar the
right of the City or CTE to seek or obtain judicial relief from any violation of this franchise 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 City to recover monetary damages for such violation by CTE,
or to seek and obtain judicial enforcement of CTE's obligations under this franchise by means
of specific performance, injunctive relief or mandate, or any other judicial remedy at law or in
equity.
SECTION 10 — MISCELLANEOUS PROVISIONS
10.1 Posting and Publication. CTE shall assume the cost of posting and
publication of this franchise as such posting and publication is required by law, and such is
payable upon CTE's filing of acceptance of this franchise.
10.2 Service of Notice. Except as otherwise specifically provided herein, any
notice required or permitted to be given under this franchise shall be deemed sufficient if
provided in writing and when (1) delivered personally to the following addressee(s) or
deposited with the United States Postal Service, postage paid, certified or registered mail;
(2) sent by overnight or commercial air courier; or (3) sent by facsimile transmission
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addressed as follows, or to such other address as the receiving party hereafter shall specify in
writing:
Notices to the City shall be addressed to the following:
Randy Beehler, Telecommunications Manager
City of Yakima Telecommunications Division
124 South 2nd Street
Yakima, WA 98901
Telephone Number: (509) 575-6092
Facsimile Number:. (509) 576-6380
E-mail: rbeehler@ci.yakima.wa.us
Notices to CTE shall be addressed to the following:
Christopher T. Cook
Open Access Comm.
505 South Third Avenue
Yakima, WA 98902
Telephone Number: 452-4928
Facsimile Number: 452-0284
E-mail: chrisc@centraltel.com
10.3 Compliance with Laws. CTE shall comply with all federal and state laws and
regulations, including regulations of any administrative agency thereof, as well as the general
ordinances, resolutions, rules and regulations of the City, pursuant to the City's lawful
authority, heretofore or hereafter adopted or established during the entire term of this
franchise. In the event any valid and superior law, rule or regulation of any governing
authority or agency having jurisdiction contravenes the provisions of this franchise subsequent
to its adoption, then the provisions of this franchise shall be superseded only to the limited
extent that the provisions hereof are in conflict and contrary to any such law, rule or
regulation. Nothing in this franchise shall limit the City's right of eminent domain under state
law. Nothing in this franchise shall be deemed to waive the requirements of any lawful code
or resolution of the City regarding permits, fees to be paid or manner of construction.
10.4 Governing Law and Venue. This franchise shall be governed by and
construed in accordance with the laws of the State of Washington, and venue for any litigation
arising out of or in connection with privileges extended herein is stipulated to be in Yakima
County.
10.5 Severability. If any section, subsection, sentence, clause, phrase or portion of
this franchise is for any reason declared by a court of competent jurisdiction to be void,
invalid or unenforceable, such portion shall be deemed a separate, distinct and independent
provision and such declaration shall not affect the validity of the remaining portions thereof.
In such event, the City and CTE shall negotiate in good faith to modify this franchise as may
be necessary to meet the requirements of the law and/or to effectuate the intention of this
franchise. In the event that such modifications are barred by any legal requirements governing
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any party, the City and CTE shall use their best efforts to otherwise avoid prejudice to the
respective parties' interests and to implement changes to effectuate the intent in entering into
this franchise.
10.6 Guarantee of Performance. CTE hereby agrees that it enters into this
franchise voluntarily and in order to secure and in consideration of the grant from the City of a
nine-year franchise. Performance pursuant to the terms and conditions of this franchise is
guaranteed by CTE. This franchise shall be binding upon the City and CTE, their permitted
successors and assigns.
10.7 Force Majeure.
A. For the purposes of this Section, the term "force majeure" shall mean
acts of God, landslides, earthquakes, lightning, fires, hurricanes, volcanic activity, storms,
floods, washouts, droughts, civil disturbances, acts of terrorism or of the public enemy, partial
or entire failure of utilities, strikes, explosions, lockouts or other industrial disturbances,
insurrections, public riots or other similar events which are not reasonably within in the
control of the parties hereto.
B. If CTE is wholly or partially unable to carry out its obligations under
this franchise as a result of a force majeure, CTE shall provide the City prompt notice of such
force majeure, describing the same in reasonable detail, and CTE's obligations under this
franchise, other than for payment of moneys due, shall not be deemed in violation or default
for the duration of the force majeure. CTE agrees to use its best efforts to remedy as soon as
possible, under the circumstances, CTE's inability, by reason of force majeure, to carry out its
responsibilities and duties under this franchise.
10.8 City Right of Intervention. If the City otherwise has the right to intervene,
CTE expressly acknowledges and agrees, by acceptance of this franchise, not to oppose such
intervention by the City in any suit or proceeding to which CTE is a party related to this
franchise.
10.9 Consent. Wherever the consent or approval of either CTE or the City is
specifically required in this franchise, such consent or approval shall not be unreasonably
withheld.
10.10 No Third Party Beneficiaries. There shall be no third party beneficiaries of
this franchise.
10.11 Franchise Ordinance Acceptance. CTE shall execute and return to the City,
within sixty (60) days after the date of adoption of the Franchise Ordinance by the Yakima
City Council, three (3) original Franchise Agreements, by which CTE acknowledges that it
has carefully read the terms and conditions of the Franchise Ordinance and accepts all of the
terms and conditions of the Franchise Ordinance and this franchise and agrees to abide by the
same. In accepting this franchise, CTE shall indicate that it has relied upon its own
investigation of all relevant facts, that it has had the assistance of counsel, that it was not
induced to accept this franchise, that the Franchise Ordinance represents the entire agreement
44
between CTE and the City and that CTE accepts all reasonable risks related to the
interpretation of the Franchise Ordinance and this franchise. The executed Franchise
Agreements shall be returned to the City accompanied by the Performance Bond as required in
Section 7.6 of this franchise and evidence of insurance as required in Sections 7.5.1 and 7.5.2
of this franchise. In the event CTE fails to submit a Franchise Agreement as provided for
herein, or fails to provide the required accompanying documents, this franchise shall be null
and void.
10.12 Previous Rights Abandoned. This franchise supersedes any and all other
rights, privileges, powers, immunities and authorities owned, possessed, controlled or
exercisable by CTE pursuant to any previous multichannel . video/cable communications
system franchise in the City.
10.13 Effective Date. This franchise and the Franchise Ordinance shall be effective
thirty (30) days after its adoption; PROVIDED, however, that if CTE does not accept this
franchise pursuant to Section 10.11 of this franchise and comply with all conditions for such
acceptance set forth herein within sixty (60) days after the adoption of the Franchise
Ordinance, this franchise and the Franchise Ordinance shall be null and void.
PASSED BY THE CITY COUNCIL, signed and approved this 6th day of August
2002.
CITY OF YAKIMA
Mary ice, Mayor
Attest:
an.e.r— �d �
City Clerk
Franchise
City ( ommNo: F 02 002
Ordinance No: 2002-43
Effective date: 9-5-2002
45
CENTRAL TELECOMMUNICATIONS
EAST, INC.
By:
Its:
State of )
) ss.
County of )
I hereby certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person
acknowledged that he/she signed this instrument, and on oath stated that he/she was
authorized to execute the instrument on behalf of Central Telecommunications East, Inc., and
acknowledged it as the of Central
Telecommunications East, Inc., to be the free and voluntary act of such party for the uses and
purposes mentioned in this instrument.
Dated this day of , 2002.
Print Name:
NOTARY PUBLIC in and for the State of
, residing at
My commission expires:
46
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 14,
For Meeting Of August 6, 2002
ITEM TITLE: An ordinance granting a non-exclusive franchise to Central
Telecommunications East, Inc. which authorizes Central Telecommunications East, Inc. to
occupy City of Yakima rights-of-way in order to construct, operate and maintain a multichannel
video/cable communicions system.
SUBMITTED BY:Cook, Director, Community and Economic Development Department
CONTACT PERSON/TELEPHONE: Randy Beehler, Telecommunications Manager,
575-6092
SUMMARY EXPLANATION: On April 16, 2002, the City Council passed Ordinance No.
2002-24 granting a non-exclusive telecommunications system franchise to Central
Telecommunications East, Inc. ("CTE"). CTE requested the City grant such a franchise so that
CTE could construct a fiber optic -based network throughout the City which could be used to
provide a variety of telecommunications services (phone service, data transport, Internet
connections, etc.). CTE also contemplates use of its fiber optic -based system to provide
multichannel video services similar to those provided by traditional cable television system
operators. Federal and state law distinguish between "telecommunications" services and
"multichannel video" or "cable" services. Given that distinction, CTE needs to be granted two
franchises by the City so that its fiber optic -based network can be utilized to provide the full
array of services contemplated by CTE. Asmentioned, the City Council previously passed an
ordinance grating CTE a franchise allowing its fiber optic -based network to be used to provide
"telecommunications" services. The attached ordinance would grant CTE a franchise allowing
use of CTE's fiber optic -based network to provide "multichannel video/cable" services.
Resolution Ordinance X Other (specify)
Contract X Mail to (name & address)
Phone:
Funding Source 1\
APPROVAL FOR SUBMITTAL: � - City Manager
STAFF RECOMMENDATION: Pass ordinance.
BOARD/COMMISSION RECOMMENDATION: N/A
COUNCIL ACTION: Ordinance passed. ORDINANCE NO. 2002-43
between CTE and the City and that CTE accepts all reasonable risks related to the
interpretation of the Franchise Ordinance and this franchise. The executed Franchise
Agreements shall be returned to the City accompanied by the Performance Bond as required in
Section 7.6 of this franchise and evidence of insurance as required in Sections 7.5.1 and 7.5.2
of this franchise. In the event CTE fails to submit a Franchise Agreement as provided for
herein, or fails to provide the required accompanying documents, this franchise shall be null
and void.
10.12 Previous Rights Abandoned. This franchise supersedes any and all other
rights, privileges, powers, immunities and authorities owned, possessed, controlled or
exercisable by CTE pursuant to any previous multichannel video/cable communications
system franchise in the City.
10.13 Effective Date. This franchise and the Franchise Ordinance shall be effective
thirty (30) days after its adoption; PROVIDED, however, that if CI'h does not accept this
franchise pursuant to Section 10:11 of this franchise and comply with all conditions for such
acceptance set forth herein within sixty (60) days after the adoption of the Franchise
Ordinance, this franchise and the Franchise Ordinance shall be null and void.
a
PASSED BY THE CITY COUNCIL, signed and approved this , day of 46-z.s ,
2002.
CITY OF YAKIMA
Attest:
City Clerk
FRANCH1SE
City met No: P' D,,Z ek,07.
Ordinance No: 2 - +'.6
Effective Date: 9-5-2002
45
CENTRAL TEE .PCOMMUNICATIONS
EAST, r C.
By:
Its:
State of
County of C/fit.;70 } ss.
I hereby certify that I know or have satisfactory evidence that C/ieiS
is the person who appeared before me, ands d person
acknowledged that /she signed this instrument, and on oath stated that hb/she was
authorized to execute the instrument on behalf of Central Telecommunications East, Inc., and
acknowledged it as the 64) of Central
Telecommunications East, Inc., to be the free and voluntary act of such party for the uses and
purposes mentioned in this instrument.
Dated this l day of '� �I , 2002.
Print Name: /4770/9 i.P.Me>tee-
NOTARY PUBLIC in and for the State of
My comrrassion expires:
46
, residing at