854 Franchise Digitaria Non-exclusiveORDINANCE NO. 854
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF YELM, WASHINGTON, GRANTING A
NON-EXCLUSIVE MULTI-MEDIA COMMUNICATION FRANCHISE TO DIGITARIA COMMUNICATION
NETWORKS LLC FOR THE CONSTRUCTION, OPERATION, RECONSTRUCTION AND MAINTENANCE
OF CABLE AND TELECOMMUNICATION SERVICES WITHIN THE CITY LIMITS
WHEREAS, the City of Yelm is authorized to grant nonexclusive franchises for the
operation of cable systems within the City rights-of-way; and
WHEREAS, Digitaria Communication Networks LLC. has requested a franchise to
construct, operate, and maintain amulti-media communication system within the
jurisdictional boundaries of Yelm, and
WHEREAS, the terms, conditions, and obligations provided herein are necessary to
protect the safety and welfare of the citizens of Yelm and provide for the communication
needs of the community;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF YELM, WASHINGTON,
HEREBY ORDAINS AS FOLLOWS:
Section 1: Purpose.
This Ordnance shall establish a non-exclusive Franchise, which constitutes an
agreement between the City of Yelm (hereinafter the "City") and Digitaria
Communication Networks, LLC, (hereinafter "Grantee") agrees to construct, maintain,
and operate aMulti-media Communication System for the distribution of telephone,
Internet, and cable services pursuant to the terms of this Franchise. The City agrees to
grant Grantee all necessary rights and privileges to use public rights of way necessary
for a Cable System. This agreement shall, as of its effective date, supersede and
replace all existing franchises previously granted by the City of Yelm to Grantee or any
of its predecessors, subsidiaries or affiliated companies.
Section 2: Definitions.
For the purpose of this Franchise, the following terms, phrases, words, and
abbreviations shall have the meanings ascribed to them below. When not inconsistent
with the context, words used in the present tense include the future tense, words in the
plural number include the singular number, and words in the singular number include
the plural number:
2.1 "Basic Cable" is the lowest priced tier of service that includes the retransmission
of local broadcast television signals.
2.2 "Cable Act" collectively means the Cable Communications Policy Act of 1984 and
the Cable Television Consumer Protection and Competition Act of 1992, as
amended by the Telecommunications Act of 1996.
2.3 "Cable Services" shall mean
(A) the one-way transmission to Customers of
i. VoIP telephone service
ii. high speed broadband Internet connections
iii. video applications, including cable channel programming
iv. other programming service, and
(B) Customer interaction, if any, which is required for the selection or use of such
video programming or other programming service
2.4 "Cable System" shall mean a facility, consisting of a set of closed transmission
paths and associated signal generation, reception, and control equipment that is
designed to provide Cable Service which includes video programming and which
is provided to multiple Customers within a community, but such term does not
include
(A) a facility that serves only to retransmit the television signals of one or
more television broadcast stations,
(B) a facility that serves Customers without using any Public Way;
(C) a facility of a common carrier which is subject, in whole or in part, to the
provisions of Title II of the Communications Act of 1934, except that such
facility shall be considered a Cable System (other than for purposes of
Section 621 (c) of the Cable Act} to the extent such facility is used in
transmission of video programming directly to Customers unless the
extent of such use is solely to provide interactive on-demand services,
(D)an open video system that complies with Section 653 of Title VI of the
Communications Act of 1934, or
(E) any facilities of any electric utility used solely for operating its electric utility
system.
2.5 "City" means the City of Yelm or the lawful successor, transferee, or assignee
thereof.
2.6 "Customer" means a Person who lawfully receives services of the Cable System
with the Grantee's express permission.
2.7 "FCC" means Federal Communications Commission, or successor governmental
entity thereto.
2.8 "Franchise" shall mean the initial authorization, or renewal thereof, issued by the
City, whether such authorization is designated as a franchise, permit, license,
Ordinance No. 854 Page 2 of 27
resolution, contract, certificate, or otherwise, which authorizes construction and
operation of the Cable System.
2.9 "Grantee" means Digitaria Communication Networks, LLC or the lawful
successor, transferee, or assignee thereof.
2.10 "Gross Revenues" means any revenues derived by the Grantee from the
operation of the Cable System to provide Cable Services in the Service Area,
including: Basic Service, Expanded Basic Service, Digital Cable Service,
Premium and Pay-Per- View Services, installation, connection and reconnection
fees and revenues from advertising sales, leased access and home shopping.
Provided, however, that such phrase shall not include any tax, fee, or
assessment of any kind imposed by the City or other governmental entity on a
cable Grantee, or Customer, or both, solely because of their status as such.
Gross Revenue shall not include amounts which cannot be collected by the
Grantee, 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.
2.11 "Institutional Network" or "I-NET" means the institutional network connecting
public facilities and organizations within the Franchise Area described in greater
detail in this Agreement.
2.12. "Person" means an individual, partnership, association, joint stock company,
trust, corporation, or governmental entity.
2.13 "Public Way" or "Street" shall mean the surface of, and the space above and
below, any public street, highway, freeway, bridge, land path, alley, court,
boulevard, sidewalk, parkway, way, lane, public way, drive, circle, or other public
right-of-way, including, but not limited to, public utility easements, dedicated utility
strips, or rights-of--way dedicated for compatible uses, and any temporary or
permanent fixtures or improvements located thereon now or hereafter held by the
City in the Service Area which shall entitle the City and the Grantee to the use
thereof for the purpose of installing, operating, repairing, and maintaining the
Cable System. Public Way shall also mean any easement now or hereafter held
by the City within the Service Area for the purpose of public travel, or for utility or
public service use dedicated for compatible uses, and shall include other
easements or rights-of-way as shall within their proper use and meaning, entitle
the City and the Grantee to the use thereof for the purposes of installing and
operating the Grantee's Cable System over poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other
property as may be ordinarily necessary and pertinent to the Cable System.
Ordinance No. 854 Page 3 of 27
2.14 "Service Area" or "Franchise Area" means the present municipal boundaries of
the City, and shall include any additions thereto by annexation or other legal
means.
Section 3: Grant of Franchise.
3.1 Grant
(A) The City hereby grants to Grantee a nonexclusive and revocable
authorization to make reasonable and lawful use of the Streets within the
Franchise Area to construct, operate, maintain, reconstruct, and repair a
Cable System for the purpose of providing Cable Services subject to the
terms and conditions set forth in this Franchise and applicable federal, state
and local law
(B) This Agreement is intended to convey limited rights and interests only as to
those Streets in which the City has an actual interest. It is not a warranty of
title or interest in any right-of-way; it does not provide Grantee any interest in
any particular location within the right-of-way; and it does not confer rights
other than as expressly provided in the grant hereof. This Franchise does not
deprive the City of any powers, rights or privileges it now has, or may later
acquire in the future, to use, perform work on, or to regulate the use of land to
control the City's Streets covered by this Franchise, including without
limitation the right to perform work on its roadways, right-of-way, or
appurtenant drainage facilities, including constructing, altering, paving,
widening, grading, or excavating thereof.
(C) This Agreement is subject to the general lawful police power of the City
affecting matters of municipal concern and not merely existing contractual
rights of Grantee. Nothing in this Agreement shall be deemed to waive the
requirements of the other codes and ordinances of general applicability
enacted, or hereafter enacted, by City.
3.2 Use of Public Ways and Streets
Subject to City's supervision and control, Grantee may erect, install, construct, repair,
replace, reconstruct, and retain in, on, over, under, upon, across, and along the Public
Streets, including rights-of-way and public easements within the Service Area such
wires, cables, conductors, ducts, conduits, vaults, amplifiers, pedestals, attachments
and other property and equipment as are necessary and appurtenant to the operation of
a Cable System for the provision of Cable Service within the Franchise Area. Grantee
shall comply with all applicable construction codes, laws, ordnances, regulations and
procedures, now in effect or enacted hereafter, and must obtain any and all necessary
permits from the City prior to commencing any construction activities.
Ordinance No. 854 Page 4 of 27
3.3 Duration
The term of this Franchise and all rights, privileges obligations and restrictions
pertaining thereto shall be ten (10) years from the effective date of this Franchise unless
extended or terminated sooner as hereafter provided.
3.4 Effective Date
This Ordnance shall take effect five (5} days from the date of publication, following
adoption by the City Council. The Franchise granted by this Ordnance shall not
become effective until Grantee files written acceptance thereof in accordance with
Section 23.4. If Grantee fails to provide such acceptance and post the security required
hereunder, this Franchise shall become null and void, and any and all rights of Grantee
to operate a Cable System within the Service Area under this Franchise are hereby
terminated.
3.5 Franchise Nonexclusive
This Franchise shall be nonexclusive, and is subject to all prior rights, interests,
agreements, permits, easements or licenses granted by the City to any Person to use
any Street, right-of-way, easement, or property for any purpose whatsoever, including
the right of the City to use same for any purpose it deems fit, including the same or
similar purposes allowed Grantee hereunder. City may at any time grant authorization
to use the public rights-of-way for any purpose not incompatible with Grantee's authority
under this Franchise and for such additional Franchises for Cable Systems, as City
deems appropriate.
3.6 Grant of Other Franchises
(A) In the event the City enters into a Franchise, permit, license, authorization, or
other agreement of any kind with any other Person or entity other than the
Grantee to enter into the City's public ways for the purpose of constructing or
operating a Cable System or providing Cable Service to any part of the
Service Area, in which Grantee is actually providing Cable Service under the
terms and conditions of this Franchise, or is required to extend Cable Service
to under the provisions of Section 12 of this Franchise, the material provisions
thereof shall be reasonably comparable to those contained herein, in order
that one operator not be granted an unfair competitive advantage over
another, and to provide all parties equal protection under the law.
(B) If the City grants a franchise to a third party to provide Cable Service to an
area that Grantee is not actually serving or required to extend service to, and
which has material provisions that are not reasonably comparable to those
contained herein, the City shall offer Grantee a Franchise to serve the same
area under terms and conditions that are reasonably comparable to those set
Ordinance No. 854 Page 5 of 27
forth in the franchise agreement entered into with the third party.
3.7 Police Powers
This Franchise and all rights and privileges granted under the Franchise are subject to,
and Grantee must exercise all rights in accordance with, applicable law, as amended
over the Franchise term. However, this Franchise is a contract, subject only to the
City's exercise of Its police and other powers and applicable law. This Franchise does
not confer rights or immunities upon Grantee other than as expressly provided herein.
In the case of any conflict between the express terms of this Franchise with any
ordnance of general application enacted pursuant to the City's police power, the
ordnance shall govern. Grantee does not waive its right to challenge the lawfulness of a
particular enactment, including on the grounds that a particular action is an
unconstitutional impairment of contractual rights.
Section 4: Administration and Regulation by the City.
Grantee's Service Area shall be the entire incorporated area of the City of Yelm, in its
present incorporated form or in any later reorganized, consolidated, enlarged, or re-
incorporated form.
4 1 Authority
The City is vested with the power and right to regulate the exercise of the privileges
permitted by this Franchise in the public interest in accordance with applicable law, or to
delegate that power and right, or any part thereof, to the extent permitted under state
and local law, to any agent, in its sole discretion.
4.2 Rates and Charges
All of Grantee's rates and charges related to or regarding Cable Service shall be subject
to regulation by City to the full extent authorized by applicable federal, state and local
laws.
4.3 Rate Discrimination
All of Grantee's rates and charges shall be published (in the form of a publicly available
rate card), and shall be nondiscriminatory as to all Persons and organizations of similar
classes, under similar circumstances and conditions. Grantee shall apply its rates in
accordance with governing law, with similar rates and charges for all Customers
receiving similar Cable Service, without regard to race, color, familial, ethnic or national
origin, religion, age, sex, sexual orientation, marital, military or economic status, or
physical or mental disability, or geographic location in the Service Area. Grantee shall
provide equivalent Cable Service to all residential Customers at similar rates and to
commercial Customers as authorized by applicable laws. Nothing herein shall be
Ordinance No. 854 Page 6 of 27
construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction with
valid promotional campaigns;
(B) The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens.
(C) Grantee from establishing different and nondiscriminatory rates and charges
and classes of service for commercial Customers, as well as different
nondiscriminatory monthly rates for classes of commercial Customers as
allowable by federal law and regulations; or
(D) Grantee from establishing different and nondiscriminatory rates and charges
for residential Customers as allowable by federal law and regulations.
Grantee will continue to voluntarily provide a 30% discount off of Basic Cable service to
qualifying low-income disabled Subscribers and low-income senior Subscribers, age 65
and older. Grantee will qualify discount applicants in accordance with its standard
practices.
4.4 Filing of Rates and Charges
(A) Throughout the term of this Franchise, Grantee shall maintain on file with the
City a complete schedule of applicable rates and charges for Cable Service
provided hereunder. Nothing in this subsection shall be construed to require
Grantee to file rates and charges under temporary reductions or waivers of
rates and charges in conjunction with promotional campaigns.
(B) Grantee shall provide, upon request from the City, a complete schedule of
current rates and charges for any and all leased access channels, or portions
of such channels provided by Grantee in the Service Area. The schedule
shall include a description of the price, terms and conditions established by
Grantee for such leased access channels.
4.5 Renewal of Franchise
(A) The City and Grantee agree that any proceedings undertaken by the City that
relate to the renewal of Grantee's Franchise shall be governed by and comply
with the provisions of Section 626 of the Cable Act, as amended, unless the
procedures and substantive protections set forth therein shall be deemed to
be preempted and superseded by the provisions of any subsequent provision
of federal or state law.
(B) In addition to the procedures set forth in said Section 626(a), the City agrees
to notify Grantee of all of its assessments regarding the identity of future
Ordinance No. 854 Page 7 of 27
cable-related community needs and interests, as well as the past
performance of Grantee under the then current Franchise term. The City
further agrees that such preliminary assessments shall be provided to
Grantee promptly so that the Grantee has adequate time to submit a proposal
under Section 626(b) of the Cable Act and complete renewal of the Franchise
prior to expiration of Its term.
Notwithstanding anything to the contrary set forth in this Section, Grantee and
the City agree that at any time during the term of the then current Franchise,
while affording the public appropriate notice and opportunity to comment, the
City and Grantee may agree to undertake and finalize informal negotiations
regarding renewal of the then current Franchise and the City may grant a
renewal thereof. Grantee and the City consider the terms set forth in this
Section to be consistent with the express provisions of Section 626 of the
Cable Act.
4.6 Conditions of Sale
If a renewal or extension of the Grantee's Franchise is denied or the Franchise is
lawfully terminated, and the City either lawfully acquires ownership of the Cable System
or by its actions lawfully effects a transfer of ownership of the Cable System to another
party, any such acquisition or transfer shall be at the price determined pursuant to the
provisions set forth in Section 627 of the Cable Act.
Grantee and the City agree that in the case of a final determination of a lawful
revocation of the Franchise, at the Grantee's request, Which shall be made in Its sole
discretion, Grantee shall be given a reasonable opportunity to effectuate a transfer of its
Cable System to a qualified third party. The City further agrees that during such a
period of time, it shall authorize Grantee to continue to operate pursuant to the terms of
its prior Franchise; however, in no event shall such authorization exceed a period of
time greater than six (6) months from the effective date of such revocation. If, at the
end of that time, Grantee is unsuccessful in procuring a qualified transferee or assignee
of its Cable System which is reasonably acceptable to the City, Grantee and the City
may avail themselves of any rights they may have pursuant to federal or state law; it
being further agreed that Grantee's continued operation of Its Cable System during the
six (6) month period shall not be deemed to be a waiver, nor an extinguishment of any
rights of either the City or Grantee.
4.7 Transfer of Franchise.
Grantee's right, title, or interest in the Franchise shall not be sold, transferred, assigned,
or otherwise encumbered, other than to an entity controlling, controlled by, or under
common control with Grantee, without the prior consent of the City, such consent not to
be unreasonably withheld. No such consent shall be required however, for a transfer in
trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or
interest of Grantee In the Franchise or Cable System in order to secure indebtedness.
Ordinance No. 854 Page 8 of 27
Within thirty (30) days of receiving the request for transfer, the City shall, in accordance
with FCC rules and regulations, notify Grantee in writing of the information it requires to
determine the legal, financial and technical qualifications of the transferee. If the City
has not taken action on the Grantee's request for transfer within one hundred twenty
(120) days after receiving such request, consent by the City shall be deemed given.
Section 5: Franchise Fees.
5.1 Franchise Fee
As consideration for the benefits and privileges granted under this Franchise and in
consideration of permission to use City's Streets and Public Ways, Grantee shall pay as
a Franchise fee to City, throughout the duration of this Franchise, an amount equal to
five percent (5%) of Grantee's Gross Revenues derived from the operation of the Cable
System to provide Cable Services in the Service Area. Accrual of such Franchise fees
shall commence as of the effective date of this Franchise. The Franchise fees are in
addition to all other fees, assessments, taxes or payment of general applicability that
Grantee may be required to pay under any federal, state or local law. This Franchise
and the Franchise fees paid hereunder are not in lieu of any other generally applicable
required permit, authorization, fee, charge, or tax.
5.2 Payments
Grantee's Franchise fee payments to the City shall be computed quarterly. Each
quarterly payment shall be due and payable no later than forty-five (45) days after the
last day of the preceding quarter.
5.3 Acceptance of Payment Computation
No acceptance of any payment shall be construed as an accord by City that the amount
paid is, In fact, the correct amount, nor shall any acceptance of payments be construed
as a release of any claim the City may have for further or additional sums payable or for
the performance of any other obligation of Grantee.
5.4 Quarterly Reports
Each payment shall be accompanied by a written report to the City, containing an
accurate statement in summarized form, as well as in detail, of Grantee's Gross
Revenues and the computation of the payment amount.
Ordinance No. 854 Page 9 of 27
5.5 Annual Reports
Grantee shall, no later than one-hundred twenty (120) days after the end of each
calendar year, furnish to City a statement stating the total amount of Gross Revenues
and all payments, deductions and computations for the period covered by the
payments. Such statement shall be reviewed and certified by an officer of Grantee prior
to submission to City.
5.6 Franchise Fee Audits
On an annual basis, upon thirty (30) days' prior written notice, City shall have the right to
conduct an independent audit of Grantee's records reasonably related to the
administration or enforcement of this Franchise, in accordance with generally accepted
accounting principles. The City may hire an independent certified public accountant to
audit the Grantee's financial records, in which case the Grantee shall provide all
necessary records to the certified public accountant. If the audit shows that Franchise
fees have been underpaid by ten percent (10%) or more, Grantee shall pay the total
cost of the audit.
5.7 Interest on Late Payments
In the event that a franchise fee payment or other sum is not received by the City on or
before the due date, or is underpaid, Grantee shall pay, In addition to the payment or
sum due, interest from the due date at a rate equal to the highest rate permissible under
the laws of the State of Washington.
5.8 Costs of Publication
Grantee shall pay the reasonable cost of newspaper notices and publication pertaining
to this Franchise and any amendments thereto, as such notice or publication is
reasonably required by the City or applicable law.
5.9 Tax Liability
Payment of the Franchise fees under this Franchise shall not exempt Grantee from the
payment of any generally applicable license, permit fee or other generally applicable
fee, tax, or charge on the business, occupation, property, or income of Grantee that
may be lawfully imposed by City.
Ordinance No. 854 Page 10 of 27
Section 6: Upgrade
6.1 Upgrade
No later than thirty-six {36) months from the effective day of this Franchise, the Grantee
shall upgrade the Cable System to the following specifications:
(A) The Cable System will use a fiber to the neighborhood node architecture.
This will involve deployment of fiber optic cable from the headend to the node
throughout those portions of the Cable System to be upgraded. The
upgraded plant will tie into a hybrid fiber-coaxial Cable System already
serving Subscribers.
(B) The Cable System will serve no more than 1,500 subscribers per fiber node.
(C) All active electronics will be 550 MHz capable equipment, or equipment of
higher bandwidth.
(D) Passive devices will pass a minimum bandwidth of 550 MHz
(E) As designed, upgraded and maintained, the facilities on the Cable System
must be able to deliver high quality Signals that meet or exceed FCC
technical quality standards regardless of the particular manner in which the
signal is transmitted.
6.2 Construction Information and Schedule
Construction information and a construction schedule shall be submitted to the City in
accordance with the City's permitting process.
Section 7: Emergency Alert System
Upon completion of the Cable System upgrade, and in accordance with the provisions
of FCC Regulations Part II, Subpart D, Section 11.51, as such provisions may from time
to time be amended, Emergency Alert System ("EAS") activation will be accomplished
in compliance with the FCC approved Washington State EAS plan and the Local Area
EAS plan that applies to Thurston County, which has already been submitted for
approval to the Washington State Emergency Communications Committee (WSECC).
Section 8: Emergency Power
Grantee shall provide a standby power system to automatically activate equipment at
the headend and hubs, if applicable in event of primary electrical failure
Ordinance No. 854 Page 11 of 27
Section 9: Coverage
The City shall be provided with Cable Service In the entire Franchise area. If such a
condition does not now exist, the Grantee shall complete such wiring and be in a
position to offer Cable Service to all residents within twelve (12) months from the grant
of the Franchise. Areas subsequently annexed shall be provided with cable availability
within twelve (12) months of annexation.
Section 10: Cable Availability.
Cable Service shall not be denied to any group of potential residential cable Customers
because of the income of the residents of the local area in which such group resides.
Section 11: Extraordinary Installation
All residents requesting cable service and living within one hundred twenty-five (125)
feet of existing cable distribution lines shall have the cable installed at the prevailing
published installation rate.
In the event a request is made for service and the residence is more than one hundred
twenty-five (125) feet from an existing cable distribution line, such installation shall be
completed on a time and material cost basis for that portion of the service line extending
beyond one hundred twenty-five (125) feet.
Section 12: Distribution Line Extension.
Cable Service shall be available to all residents within the City provided there are at
least thirty-five (35) dwelling units per street mile.
In the event a request is made for service by a resident(s) living in an area not meeting
such criteria, Grantee shall enter into a contractual agreement with the resident(s)
requesting Cable Service wherein Grantee shall be reimbursed for Its construction
costs.
Whenever any subsequent Customer who did not contribute to the original cost of the
extension connects to the extended distribution service line, that Customer shall pay
his/her pro rata share directly to Grantee prior to obtaining Cable Service. Grantee shall
then promptly tender such payment to the original Customer so long as the agreement
remains in force.
Reimbursement shall be calculated on a front foot basis as a percentage of the total
cost of the service line extension. Reimbursement shall be made to the original
Customer for a period of up to five (5) years or to the point when Grantee has recovered
its incremental costs to construct the distribution service line.
Ordinance No. 854 Page 12 of 27
Section 13: Complimentary Cable Service to Public Buildings
Grantee shall provide, without charge for installation or monthly rate, Basic Service, one
outlet and converter if needed, to those City offices, fire station(s), police station(s) and
accredited school buildings, as well as other such buildings that may be constructed
during the period of the Franchise, that are passed by the Cable System and are within
one hundred fifty (150) feet of the trunk or distribution plant.
Section 14: Customer Service
14.1 Customer Service Standards
Grantee shall meet or exceed any customer service standards adopted by the FCC and,
to the extent the same are stricter or address different matters, those adopted now or in
the future by the City
14.2 Subscriber Privacy
Grantee will comply with privacy rights of Customers in accordance with federal, state
and local law.
Section 15: Books and Records
15.1 Open Records
(A) Grantee shall manage all of its operations in accordance with a policy of
keeping its documents and records open and accessible to the City. The City
shall have access to, and the right to inspect any books and records of
Grantee that are reasonably related and necessary to the administration or
enforcement of the terms of this Franchise, as determined by the City. The
City may, in writing, request copies of any such records or books and Grantee
shall provide such copies within thirty (30) days of the transmittal of such
request. One copy of all reports and records required under this or any other
Section shall be furnished to City at the sole expense of Grantee. If the
requested books and records are too voluminous, or for security reasons
cannot be copied or removed, then Grantee may request in writing within ten
(10) days, that City inspect them at one of Grantee's local area offices. If any
books or records of Grantee are not kept in a local office, Grantee will provide
or otherwise make such documents available for inspection and review at the
local office within ten (10) working days. If any books or records of Grantee
are not kept in a local area office and not made available in copies to City
upon written request as set forth above, and if City determines that an
examination of such records is necessary or appropriate to the performance
of any of City's duties, administration, or enforcement of this Franchise, then
all reasonable travel expenses incurred in making such examination shall be
Ordinance No. 854 Page 13 of 27
paid by Grantee.
(B}Grantee shall at all times maintain and allow the City access to, and the right
to review a complete set of plans, records and "strand" maps showing the
location of the Cable System installed in the Service Area. These maps shall
be maintained in an industry standard format and medium.
15.2 Confidentiality
The City agrees to treat as confidential any books and records that constitute
proprietary or confidential information under federal or state law, to the extent Grantee
makes City aware of such confidentiality. Grantee shall be responsible for clearly and
conspicuously stamping the word "Confidential" on each page that contains confidential
or proprietary information, and shall provide a brief written explanation as to why such
information is confidential under state or federal law. If City believes it must release any
such confidential books and records in the course of enforcing this Agreement, or for
any other reason, it shall advise Grantee in advance so that Grantee may take
appropriate steps to protect its interests. If the City receives a demand from any Person
for disclosure of any information designated by Grantee as confidential, the City shalt,
so far as consistent with applicable law, advise Grantee and provide Grantee with a
copy of any written request by the party demanding access to such information within a
reasonable time. Until otherwise ordered by a court or agency of competent jurisdiction,
City agrees that, to the extent permitted by state and federal law, it shall deny access to
any of Grantee's books and records marked confidential as set forth above to any
Person.
Section 16: Programming
16.1 Parental Control Device
Upon request by any Customer, Grantee shall make available a parental control or
lockout device; traps or filters to enable a Customer to control access to both the audio
and video portions of any or all channels. Grantee shall inform its Customers of the
availability of the lockout device at the time of their initial subscription and periodically
thereafter.
16.2 Leased Access Channels
Grantee shall meet the requirements for leased access channels imposed by federal
law.
16.3 Continuity of Service
(A) It shall be the right of all Customers to continue to receive Cable Service from
Grantee insofar as their financial and other obligations to Grantee are
satisfied. Subject to the force majeure provisions of this Franchise, Grantee
Ordinance No. 854 Page 14 of 27
shall use its best efforts to ensure that all Customers receive continuous,
uninterrupted Cable Service regardless of the circumstances.
(B) In the event of a change in ownership, or in the event a new cable operator
acquires the Cable System in accordance with this Franchise, Grantee shall
cooperate with the City and such new cable operator in maintaining continuity
of service to all Customers.
16.4 Service for Disabled
Grantee shall comply with the Americans With Disabilities Act, any amendments
thereto, and any other applicable federal, state or local laws or regulations.
Section 17: Public, Educational and Governmental ("PEG") Access
17.1 PEG Access Channels
Upon request from the City, the Grantee shall provide up to three (3) channels for
public, educational and governmental access pursuant to the provisions of the Cable
Act, Section 611 (47 USC 531), to be promoted and administered by the City or Its
designee.
17.2 Capital Contribution for PEG Access Equipment
The City reserves Its right to require Grantee to provide a Capital Contribution for public,
educational and governmental access capital requirements of the City. Upon ninety
(90) days prior written notice, Grantee shall make aone-time Capital Contribution
payment to the City. The payment shall not exceed the number of current subscribers
multiplied by the number of months remaining In the Franchise term multiplied by $1.00,
and shall be discounted to reflect the current cost of funds. The City agrees that all
amounts paid by the Grantee as the Capital Contribution may be added to the price of
Cable Services and collected from Subscribers as "external costs", as such term is used
in 47 C.F.R. §76.922 on the date of this Franchise. In addition, all amounts paid as the
Capital Contribution may be separately stated on Customers' bills as permitted In 47
C.F R. §76.985.
17.3 Reporting of Use of PEG Funds
The City shall submit a report annually to the Grantee accounting for the use of the
Capital Contribution. The City shall submit the report to the Grantee within one hundred
twenty (120) days of the close of the City's fiscal year. To the extent that information in
the report is audited in the normal course of the City's fiscal accounting, the report shall
be audited. The Grantee may review records of the Franchising Authority regarding the
use of the channels provided and the Capital Contribution, to verify that the funds have
been used for payment of PEG access capital costs.
Ordinance No. 854 Page 15 of 27
Section 18: General Street Use and Construction
18.1 Construction
(A) Subject to applicable laws, regulations, and ordinances of City and the
provisions of this Franchise, Grantee may perform all construction necessary
for the operation, maintenance, upgrading, and repair of its Cable System. All
construction and maintenance of any and all of Grantee's Cable System
facilities within the Streets and Public Ways shall, regardless of who performs
the construction, be and remain Grantee's responsibility. Grantee shall apply
for, and obtain, all permits necessary for construction or installation of any
facilities, and for excavating and laying any facilities within the Streets.
Grantee shall pay, prior to issuance, all applicable fees of the requisite
construction permits.
(B) Prior to beginning any construction, in accordance with the City's permitting
processes, Grantee shall provide the City with a construction schedule for
work in the Streets. All construction shall be performed in compliance with
this Franchise and all applicable City Ordinances and Codes. When
obtaining a permit, Grantee shall be notified, insofar as is reasonably
possible, of other construction currently in progress, planned or proposed, in
order to investigate thoroughly all opportunities for joint trenching or boring.
Whenever it is possible and reasonably practical to joint trench or share bores
or cuts, Grantee shall work with other providers, licensees, permittees and
franchisees so as to reduce as far as possible the number of Street cuts.
18.2 Location of Facilities
Within forty-eight (48) hours after notification of any proposed Street excavation,
Grantee shall, at Grantee's expense:
(A) Mark on the surface all of its underground facilities within the area of the
proposed excavation;
(B) Notify the excavator of any unlocated underground facilities in the area of the
proposed excavation; or
(C) Notify the excavator that Grantee does not have any underground facilities in
the vicinity of the proposed excavation.
18.3 Relocation
The City shall have the right to require Grantee to change the location of any part of
Grantee's Cable System within the Streets when the pubic convenience requires such
change, and the expense thereof shall be paid by Grantee. Should Grantee fall to
remove or relocate any such facilities by the date established by City, the City may
Ordinance No. 854 Page 16 of 27
effect such removal or relocation, and the expense thereof shall be paid by Grantee,
including all costs and expenses incurred by the City due to Grantee's delay. If the City
requires Grantee to relocate its facilities located within the Streets, the City shall make a
reasonable effort to provide Grantee with an alternate location within the Streets.
18.4 Restoration of Streets
(A) Whenever Grantee disturbs the surface of any Street for any purpose,
Grantee shall promptly restore the Street to at least its prior condition. When
any opening is made by Grantee in a hard surface pavement in any Street,
Grantee shall refill within twenty-four (24) hours the opening and restore the
surface to a condition satisfactory to City.
(B) If Grantee excavates the surface of any Street, Grantee shall be responsible
for restoration in accordance with applicable regulations of the City within the
area affected by the excavation. City may, after providing notice to Grantee,
refill or repave any opening made by Grantee in the Street, and the expense
thereof shall be paid by Grantee. The City may, after providing notice to
Grantee, remove or repair any work done by Grantee which, in the
determination of City, is inadequate. The cost thereof, including the costs of
inspection and supervision, shall be paid by Grantee. All excavations made
by Grantee in the Streets shall be properly safeguarded for the prevention of
accidents. All of Grantee's work under this Franchise, and this Section in
particular, shall be done in strict compliance with all rules, regulations, and
ordinances of City. Prior to making any Street or right-of-way cuts or
openings, Grantee shall provide written notice to City.
18.5 Maintenance and Workmanship
(A) Grantee's Cable System shall be constructed and maintained in such manner
as to not interfere with sewers, water pipes, or any other property of City, or
with any other pipes, wires, conduits, pedestals, structures, equipment or
other facilities that may have been laid in the Streets by, or under, City's
authority.
(B) Grantee shall provide and use any equipment necessary to control and carry
Grantee's cable television Signals so as to prevent injury to City's property or
property belonging to any Person. Grantee, at its own expense, shall repair,
change, and improve its facilities to keep them in good repair, and safe and
presentable condition.
18.6 Reservation of City Street Rights
Nothing in this Franchise shall prevent City or utilities owned, maintained, or operated
by public entities other than City, from constructing sewers, grading, paving, repairing,
or altering any Street; repairing or removing water mains, or constructing or establishing
Ordinance No. 854 Page 17 of 27
any other pubic work or improvement. All such work shall be done, insofar as
practicable, so as not to obstruct, injure or prevent the use and operation of Grantee's
Cable System. However, if any of Grantee's Cable System interferes with the
construction or repair of any Street or pubic improvement, including construction, repair
or removal of a sewer or water main, Grantee's Cable System shall be removed or
replaced in the manner City shall direct, and City shall in no event be liable for any
damage to any portion of Grantee's Cable System. Any and all such removal or
replacement shall be at the expense of Grantee. Should Grantee fail to remove, adjust,
or relocate its facilities by the date established by City's written notice to Grantee, City
may effect such removal, adjustment, or relocation, and the expense thereof shall be
paid by Grantee, including all reasonable costs and expenses incurred by City due to
Grantee's delay
18.7 Use of Grantee's Facilities by City
Subject to any applicable state or federal regulations or tariffs, the City shall have the
right to make additional use, for any pubic purpose, of any poles or conduits controlled
or maintained exclusively by or for the Grantee in any Public Way; provided that:
(a) such use by the City does not interfere with a current or future use by the
Grantee;
(b) the City holds the Grantee harmless against and from all claims, demands,
costs, or liabilities of every kind and nature whatsoever arising out of such use of
said poles or conduits, including, but not limited to, reasonable attorneys' fees
and costs if applicable, to the extent such claims are caused in whole or in part
by negligent or intentional act or omission of the City, its officers, employees,
contractors or agents; and
(c) at the Grantee's sole discretion, the City may be required either to pay a
reasonable rental fee or otherwise reasonably compensate the Grantee for the
use of such poles, conduits, or equipment; provided, however, that the Grantee
agrees that such compensation or charge shall not exceed those paid by it to
pubic utilities pursuant to the applicable pole attachment agreement, or other
authorization, relating to the Service Area.
18.8 Street Vacation
If any Street or portion thereof used by Grantee is vacated by the City during the term of
this Franchise, unless the City specifically reserves to Grantee the right to continue its
installation in the vacated Street, Grantee shall, without delay or expense to the City,
remove its facilities from such Street, and restore, repair or reconstruct the Street where
such removal has occurred, and place the Street in such condition as may be required
by the City. In the event of failure, neglect or refusal of Grantee, after thirty (30) days'
notice by the City to restore, repair or reconstruct such Street, the City may do such
work, or cause it to be done, and the reasonable cost thereof, as found and declared by
the City, shall be paid by Grantee within thirty (30) days of receipt of an invoice and
documentation.
Ordinance No. 854 Page 18 of 27
18.9 Discontinuing Use of Faculties
Whenever Grantee intends to discontinue using any facility within the Streets, Grantee
shall submit for the City's approval, a complete description of the facility and the date on
which Grantee intends to discontinue using the facility. Grantee may remove the facility
or request that the City allow it to remain in place. Notwithstanding Grantee's request
that any such facility remain in place, City may require Grantee to remove the facility
from the Street or modify the facility to protect the public health, welfare, safety, and
convenience or otherwise serve the public interest. The City may require Grantee to
perform a combination of modification and removal of the facility. Grantee shall
complete such removal or modification in accordance with a schedule set by the City. If
Grantee abandons its facilities; the City may choose to use such facilities for any
purpose whatsoever including, but not limited to, public, governmental or educational
purposes.
18.10 Hazardous Substances
(A) Grantee shall comply with all applicable local, state and federal laws, statutes,
regulations and orders concerning hazardous substances relating to
Grantee's Cable System in the Streets.
(B) Grantee shall maintain and inspect its Cable System located in the Streets.
Upon reasonable notice to Grantee, the City may inspect Grantee's facilities
in the Streets to determine if any release of hazardous substances has
occurred, or may occur, from or related to Grantee's Cable System at such
intervals as are agreed to between the parties or, if there is no agreement, at
such times as the City reasonably prescribes. In removing or modifying
Grantee's facilities as provided in this Franchise, Grantee shall also remove
all residue of hazardous substances related thereto.
18.11 Undergrounding of Cable
(A) Where electric and telephone utility wiring is installed underground at the time
of Cable System construction, or when such wiring is subsequently placed
underground, all Cable System lines or wiring and equipment shall also be
placed underground on a nondiscriminatory basis with other wire line service
at no additional expense to the City. Related Cable System equipment such
as pedestals must be placed in accordance with applicable Code
requirements and underground utility rules as interpreted by the City's Public
Works Director. In areas where electric or telephone utility wiring is aerial,
Grantee may install aerial cable, except when a property owner or resident
requests underground installation and agrees to bear the additional cost in
excess of aerial Installation.
(B) Grantee shall utilize existing poles and conduit wherever possible.
Ordinance No. 854 Page 19 of 27
18.12 Repair and Restoration of Property
(A) Grantee shall protect public and private property from damage. If damage
occurs, Grantee shall promptly notify the property owner within twenty-four
(24) hours in writing.
(B) If public or private property is disturbed or damaged, Grantee shall restore the
property to its former condition, normal wear and tear excepted. Public right-
-of-way or other City property shall be restored in a manner and within a
timeframe approved by the City's Director of Public Works. If restoration of
public right-of-way or other property of the City is not satisfactorily performed
within a reasonable time, the Public Works Director may, after prior notice to
the Grantee, or without notice where the disturbance or damage may create a
risk to public health or safety, or cause delay or added expense to a public
project or activity, cause the repairs to be made at Grantee's expense and
recover the cost of those repairs from Grantee. Within thirty (30) days of
receipt of an itemized list of those costs, including the costs of labor, materials
and equipment, Grantee shall pay the City. If suit is brought upon Grantee's
failure to pay for repair or restoration, and if judgment in such a suit is entered
in favor of the City, then Grantee shall pay all of the City's actual costs and
expenses resulting from the non-payment, including damages, interest from
the date the bill was present, disbursements, attorneys' fees and litigation-
related costs. Private property must be restored promptly, considering the
nature of the work that must be performed and in no event later than seventy-
two (72) hours.
(C) Prior to entering onto private property to construct, operate, or repair its Cable
System, Grantee shall give the Person residing on or using the property
adequate written notice (such as a door hanger which clearly identifies the
anticipated construction) that it intends to work on the property, a description
of the work it intends to perform and a name and phone number the Person
can call to protest or seek modification of the work. Work shall be done in a
manner that causes the least interference with the rights and reasonable
convenience of property owners, residents, and users.
18.13 Movement of Cable System For and By City
The City may remove, replace, modify, or disconnect Grantee's facilities and equipment
located in the public right-of-way or on any other property of the City in the case of fire,
disaster, or other emergency, or when a project or activity of the City's makes the
removal, replacement, modification or disconnection necessary or less expensive for
the City. Except during an emergency, the City shall attempt to provide reasonable
notice to Grantee prior to taking such action and shall, when feasible, provide Grantee
with the opportunity to perform such action. Following notice by the City, Grantee shall
remove, replace, modify or disconnect any of its facilities or equipment within any public
right-of-way, or on any other property of the City, except that the City shall provide at
Ordinance No. 854 Page 20 of 27
least sixty (60) days' written notice of any major capital improvement project which
would require the removal, replacement, modification or disconnection of Grantee's
facilities or equipment. If Grantee fails to complete this work within the time prescribed,
and to the City's satisfaction, the City may cause such work to be done and bill the cost
of the work to Grantee within thirty (30) days of receipt of an itemized list of those costs,
Grantee shall pay the City.
18.14 Movement for Other Franchise Holders
If any removal, replacement, modification or disconnection is required to accommodate
the construction, operation or repair of the facilities or equipment of another Franchise
holder, Grantee shall, after at least thirty (30) days' advance written notice, take action
to effect the necessary change requested by the responsible entity. The franchisees
shall determine how costs associated with the removal or relocation shall be allocated.
18.15 Movement for Other Permittees
At the request of any Person holding a valid permit and upon reasonable advance
notice, Grantee shall temporally raise, lower, or remove its wires as necessary to permit
the moving of a building, vehicle, equipment, or other Item. The expense of such
temporary changes must be paid by the permit holder, and Grantee may require a
reasonable deposit of the estimated payment in advance
18.16 Tree Trimming
Subject to acquiring prior written permission of the City, Grantee shall have the authority
to trim trees that overhang a Public Way or Street so as to prevent the branches of such
trees from coming in contact with Its Cable System. Such tree trimmmg shall be done
in accordance with applicable codes and regulations and current, accepted professional
tree trimming practices. However, if an emergency situation exists or in order to restore
Cable Service to Customers, Grantee shall have the authority to trim particular trees, in
keeping with such standards and practices, so long as the City is notified within forty-
eight (48) hours of such trimming.
18.17 Codes
Grantee shall strictly adhere to all building and zoning codes currently or hereafter in
effect. Grantee shall arrange its lines, cables and other appurtenances, on both public
and private property, In such a manner as to not cause unreasonable interference with
the use of said public or private property by any Person. In the event of such
interference, City may require the removal or relocation of Grantee's lines, cables and
other appurtenances from the property in question.
Ordinance No. 854 Page 21 of 27
18.18 Standards
(A) All work authorized and required hereunder shall be done in a safe, thorough
and workmanlike manner. Grantee must comply with all safety requirements,
rules and practices, and employ all necessary devices as required by
applicable law during construction, operation, and repair of its Cable System.
By way of illustration and not limitation, Grantee must comply with the
National Electric Code, National Electrical Safety Code, and Occupational
Safety and Health Administration (OSHA) Standards.
(B) Grantee shall ensure that its cable drops are properly bonded to the electrical
power ground at the home, consistent with the requirements of the National
Electric Code and the National Electrical Safety Code. All non-conforming or
non-performing drops shall be replaced by Grantee as necessary.
Section 19: Enforcement and Termination
19.1 Notice of Violation
In the event the City believes that Grantee has not complied with the terms of the
Franchise, it shall notify Grantee in writing, stating the nature of the alleged
noncompliance.
19.2 Grantee's Right to Cure or Respond
Grantee shall have thirty (30) days from receipt of the notice described above to
(a) respond to the City contesting the assertion of noncompliance, or
(b) to cure such default, or
(c) In the event that, by the nature of the default, such default cannot be cured
within the thirty (30) day period, initiate reasonable steps to remedy such default
and notify the City of the steps being taken and the projected date that they will
be completed.
Grantee may request an extension of time if construction is suspended or delayed by
the City, or where unusual weather, acts of God (e g. earthquakes, floods, etc.),
extraordinary acts of third parties, or other circumstances which are reasonably beyond
the control of Grantee, delay progress. Grantee shall not, through its own actions or
inactions, substantially contribute to the delay and the amount of time allowed shall be
reasonable as determined by the City. The extension of time in any case should not be
less than the extent of the actual delay experienced by Grantee in such cases where
the City finds that the delay was beyond the control of Grantee.
19.3 Failure to Correct
Failure of Grantee to respond to the notice or correct such noncompliance, except in
those circumstances cited above, may result in the City calling a hearing to investigate
Ordinance No. 854 Page 22 of 27
the default and to determine if liquidated damages should be imposed upon Grantee, or
if a material violation of the franchise has occurred. Such public hearing shall be held at
the next regularly scheduled meeting of the City Council, but no less than five (5) days
therefrom. The City shall notify Grantee in writing of the time and place of such meeting
and provide Grantee with an opportunity to be heard.
19.4 Enforcement
In case of substantial default of a material provision of the Franchise, whether so
labeled in this agreement or otherwise, subject to applicable federal and state law, in
the event the City, after such meeting, determines that Grantee is in default of any
provision of the Franchise, the City may:
(A}Seek specific performance of any provision, which reasonably lends itself to
such remedy, as an alternative to damages;
(B) Impose liquidated damages as set forth below for each day beyond thirty (30)
days that Grantee has not fulfilled the requirements for:
(1) Upgrade improvements in accordance with Section 6, $200.00 per day;
(2) PEG Channels and Capital Contribution in accordance Wlth Section 17
Public, Educational and Governmental Access, $200.00 per day;
(3} Provision of Cable Service to annexed areas in accordance with Section 9
Coverage, $200.00 per day.
Grantee and the City agree that any of the above described violations, unless
excused, or not corrected by Grantee within the time allotted, shall constitute
failure to comply with a material provision of the Franchise.
(C) In the case of substantial default of a material provision of the Franchise,
including but not limited to those specifically listed, declare the Franchise to
be revoked in accordance with the following:
The City shall give written notice to Grantee of its intent to revoke the
Franchise on the basis of a pattern of noncompliance by Grantee, including
one or more instances of substantial noncompliance with a material provision
of the Franchise. The notice shall set forth the exact nature of the
noncompliance. Grantee shall have ninety (90) days from such notice to
object in writing, and to state its reasons for such objection. In the event the
City has not received a response satisfactory from Grantee, it may then seek
termination of the Franchise at a public meeting. The City shall cause to be
served upon Grantee, at least ten (10) days prior to such public meeting, a
written notice specifying the time and place of such meeting and stating its
intent to request such termination.
At the designated meeting, the City shall give Grantee an opportunity to state
its position on the matter, after which it shall determine whether or not the
Franchise shall be revoked. Grantee may appeal such determination to an
Ordinance No. 854 Page 23 of 27
appropriate court, which shall have the power to review the decision of the
City "de novo" and to modify or reverse such decision as justice may require.
Such appeal to the appropriate court must be taken within Sixty (60) days of
the issuance of the determination of the City.
(D) No penalty, bond forfeiture, or termination shall be imposed for delays where
such delays are result of causes beyond the reasonable control and/or
without substantial fault or negligence of Grantee, as reasonably determined
by the City.
19.5 Alternative Remedies
The City may, at its sole discretion, take any lawful action which it deems appropriate to
enforce the City's rights under the Franchise in lieu of revocation of the Franchise.
Section 20: Insurance and Indemnification
20.1 Insurance Requirements
Grantee shall maintain in full force and effect, at its own cost and expense, during the
term of the Franchise, Commercial General Liability Insurance in the amount of
$2,000,000 combined single limit for bodily injury, and property damage. Grantee shall
provide a Certificate of Insurance designating the City as an additional insured. Such
insurance shall be noncancellable except upon thirty (30) days prior written notice to the
City. Any such canceled Certificate of Insurance shall be replaced with another
Certificate of Insurance, providing equal or greater coverage, prior to such cancellation.
20.2 Indemnification
Grantee agrees to indemnify, save and hold harmless, and defend the City, its officers,
boards and employees, from and against any liability for damages and for any liability or
claims resulting from property damage or bodily injury (including accidental death),
which arise out of Grantee's construction, operation, or maintenance of Its Cable
System, including, but not limited to, reasonable attorneys' fees and costs, provided that
the City shall give Grantee written notice of its obligation to indemnify the City within ten
(10) days of receipt of a claim or action pursuant to this Section. If the City determines
that it is necessary for it to employ separate counsel, the costs for such separate
counsel shall be the responsibility of the City.
Section 21: Security for Performance
21.1 Security for Performance
Except as expressly provided herein, the Grantee shall not be required to obtain or
maintain bonds or other surety as a condition of being awarded the Franchise or
continuing its existence. The City acknowledges that the legal, financial, and technical
Ordinance No. 854 Page 24 of 27
qualifications of the Grantee are sufficient for compliance with the terms of the
Franchise and the enforcement thereof. The Grantee and the City recognize that the
costs associated with bonds and other surety may ultimately be borne by the Customers
in the form of increased rates for services. In order to minimize such costs, the City
agrees to require bonds and other surety only in such amounts and during such time as
there is a reasonably demonstrated need therefore. The City agrees that In no event,
however, shall it require a bond or other related surety in an aggregate amount greater
than $100,000, conditioned upon the substantial performance of the material terms,
covenants, and conditions of the Franchise. Initially, no bond or other surety will be
required. In the event that a bond or other surety is required in the future, the City
agrees to give the Grantee at least Sixty (60) days prior written notice thereof stating the
exact reason for the requirement. Such reason must demonstrate a change in the
Grantee's legal, financial, or technical qualifications which would materially prohibit or
impair its ability to comply with the terms of the Franchise or afford compliance
therewith.
Section 22: Miscellaneous Provisions
22.1 Grantee Not an Agent of the City
This Franchise shall not be construed to provide that Grantee is the agent or legal
representative of the City for any purpose whatsoever. Grantee is not granted any
express or implied right or authority to assume or create any obligation or responsibility
on behalf of or in the name of the City, or to bind the City in any manner or thing
whatsoever.
22.2 Entire Agreement
This Franchise represents all of the covenants, promises, agreements, and conditions,
both oral and written, between the parties. However, the City reserves the right to
waive any of these Sections without affecting the applicability of other Sections not so
specifically waived. Waiver of any Franchise requirement by the City shall be in writing
in order to be effective.
22.3 Successors or Assigns
This Franchise shall be binding on the Grantee, its heirs, successors, and assigns
22 4 Acceptance
This grant of Franchise and its terms and provisions shall be accepted by Grantee by
the submission of a written instrument, executed and sworn to by a corporate officer of
Grantee before a Notary Public, and filed with the City Clerk within Sixty (60) days after
the effective date of this Franchise. Such instrument shall evidence the unconditional
acceptance of this Franchise and the promise to comply with and abide by all its
Ordinance No. 854 Page 25 of 27
provisions, terms and conditions.
22.5 Severability
Each Section, Subsection or other portion of this Ordinance shall be severable and the
invalidity of any Section, Subsection, or other portion shall not invalidate the remainder.
22.6 Force Majeure
Grantee shall not be held in default under, or in noncompliance with the provisions of
the Franchise, nor suffer any enforcement or penalty relating to noncompliance or
default (including termination, cancellation, or revocation of the Franchise), where such
noncompliance or alleged defaults occurred or were caused by strike, riot, war,
earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado
or other catastrophic act of nature, labor disputes, governmental, administrative or
judicial order or regulation, or other event that is reasonably beyond Grantee's ability to
anticipate and control. This provision also covers work delays caused by waiting for
utility providers to service or monitor their own utility poles on which Grantee's cable
and/or equipment is attached, as well as unavailability of materials and/or qualified labor
to perform the work necessary.
Section 23: Notice
Written notices shall be deemed to have been duly served if delivered
individual or entity for whom it was intended, or.if delivered at or sent
certified United States mail to the last business address known to the
the notice. All notices and requests shall be addressed to the City
Grantee as follows:
CITY: City Clerk
City of Yelm
PO Box 479
Yelm, WA 98597
GRANTEE: Digitaria Communication Networks LLC
PO Box 1351
Enumclaw, WA 98022
PASSED by the City Coun it of Yelm this 12th day of September, 2006.
,-
Ron Hardi g, Mayor
in person to the
by registered or
party who gives
of Yelm and the
Ordinance No. 854 Page 26 of 27
AUTHENTICATED:
n
gnes Bennick, City Cle
Janine Schnepf, Deputy City Clerk
PUBLISHED: Nisqually Valley News, September 22, 2006
EFFECTIVE DATE: September nth, 2006
Ordinance No. 854 Page 27 of 27