ORD 2007-43 CABLE FRANCHISE
ORDINANCE N0.2007- 43
AN ORDINANCE of the City of Bainbridge Island, Washington
relating to Cable Television Service, amending the City's Cable
Television Franchise (comprised of City Ordinance Nos. 70-14, 2001-
52, and 2003-26); specifically amending Section 1 of Ordinance No.
2003-26; adding a section to the Franchise to extend the term of the
Franchise an additional five years; and adding a competitive equity
section to the Franchise.
WHEREAS, the Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection .and Competition Act of 1992, and the Telecommunications Act of
1996, all codified in Title 47 of the United States Code, authorize local governments to grant
franchises for the provision of cable television service within their corporate boundaries; and
WHEREAS, the City of Bainbridge Island (the "City" or "Grantor") in Ordinance No. 70-14,
Ordinance No. 2001-52 and Ordinance No. 2003-26 (all hereinafter referred to collectively as the
"Franchise") granted a Franchise for the construction, maintenance, and operation of a cable
television system to the predecessors of Comcast of California/Colorado/Washington, L.P.
("Comcast" or "Grantee"); and
WHEREAS, by a transfer from Northland Cable Television, Inc. to TCI Cable Partners of St.
Louis, L.P. and a subsequent change in control, Comcast is the current franchisee; and
WHEREAS, the term of the Franchise expires on January 31, 2008 in accordance with its
terms and conditions; and
WHEREAS, the City warrants that conditions resulting from the amendment to this
Franchise have been considered by the City, and has determined that it is in the best interest of the
City and its residents to amend the Franchise with Comcast; and
WHEREAS, Comcast and the City have agreed to be bound by the conditions hereinafter set
forth.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE
ISLAND, WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1
read as follows:
Section 1 of Ordinance No. 2003-26 of the Franchise is hereby amended to
" 1. Definitions
For the purposes of the Franchise the following terms, phrases, words and their
derivations shall have the meanings given herein. When not inconsistent with the
context, words used in the present tense include the future, words in the plural
include the singular, and words in the singular include the plural. Words not defined
shall be given their common and ordinary meaning. The word "shall" is always
mandatory and not merely directory.
"Access" includes Educational Access, Governmental Access and Public Access,
collectively, and means the availability for Noncommercial use by various
governmental and educational agencies, institutions, organizations, groups and
individuals in the community, including City and its designees, of particular
Channel(s) on the Cable System to distribute Video Programming to Subscribers, as
permitted under applicable law, including, but not limited to:
A. "Educational Access" means Access where Schools are the primary users
having editorial control over programming and services.
B. "Governmental Access" means Access where governmental institutions or
their designees are the primary users having editorial control over programming and
services; and
C. "Public Access" means Access where the public is the primary user.
"Access Channel" means any Channel, or portion thereof, designated for
Noncommercial Access purposes or otherwise made available to facilitate or transmit
Access programming.
"Affiliate" when used in connection with Grantee means any Person who owns or
controls, is owned or controlled by, or is under common ownership or control with,
Grantee.
"Bad Debt" means amounts lawfully owed by a Subscriber and accrued as revenues
on the books of Grantee, but not collected after reasonable efforts by Grantee.
"Basic Service" means any Cable Service Tier that includes, at a minimum, the
retransmission of local television Broadcast Signals and Access Channels.
"Broadcast Signal" means a television or radio signal transmitted over the air to a
wide geographic audience, and received by a Cable System off-the-air by antenna.
"Cable Operator" means any Person or group of Persons, including Grantee, who
provides Cable Service over a Cable System and directly or through one or more
Affiliates owns a significant interest in such Cable System or who otherwise
control(s) or is(are) responsible for, through any arrangement, the management and
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operation of such a Cable System.
"Cable Service" means the one-way transmission to Subscribers of Video
Programming, or other programming service and Subscriber interaction, if any, that is
required for the selection or use of such Video Programming or other programming
service.
"Channel" means a portion of the frequency band capable of carrying a Video
Programming Service or combination of Video Programming Services, including
both the video and audio components thereof, whether by analog or digital signal, on
a twenty-four (24) hour per day basis or a portion thereof.
"Designated Access Provider" means the entity or entities designated by the City to
manage or co-manage Public, Educational or Governmental Access Channels and
facilities.
"Downstream" means carrying a transmission from the. Headend to remote points on
the Cable System or to interconnection points on the Cable System.
"Dwelling Unit" means any building or portion thereof that has independent living
facilities, including provisions for cooking, sanitation and sleeping, and that is
designed for residential occupancy.
"Expanded Basic Service" means Cable Services not included in the Basic Service
and excluding premium orpay-per-view services.
"FCC" means the Federal Communications Commission or its lawful successor.
"Fiber Optic" means a transmission medium of optical fiber, along with all associated
electronics and equipment capable of carrying Cable Service or Institutional Network
Service by means of lightwave pulses.
"Fully Allocated Costs" means the City's proportionate share of all direct and actual
project costs, including, but not limited to; engineering, permitting, material and
labor costs (excluding profit) of constructing, relocating or placing additional ducts,
conduits, cables, or related. structures by Grantee for the City together with ducts,
conduits, cables, or structures by and for Grantee, or those placed solely for the City
or solely for the City's use.
"Gross Revenues" means as provided in Ordinance No. 2001-52 and shall also
include revenue from any Cable Service offered by Grantee whereby Persons receive
access to the Internet through the Cable System to the extent this service is classified
as a Cable Service under federal or state law.
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"Headend" means any facility for signal reception and dissemination on a Cable
System, including cable, antennas, wires, satellite dishes, monitors, switchers,
modulators, processors for Broadcast Signals or other signals, equipment for the
interconnection of the Cable System with adjacent systems and interconnection of
any networks that are part of the Cable System, and all other related equipment and
facilities.
"Incremental Costs" means the direct and actual material and labor cost (excluding
profit) of constructing, relocating or placing additional ducts, conduit or related
structures by Grantee for the City excluding the costs of design, trenching, boring,
pipe bedding, backfilling, compacting, restoring the surface, installation and other
charges, costs or expenses that Grantee would otherwise incur to construct, relocate
or place ducts, conduit or related structures for the Grantee.
"Interconnect" or "Interconnection" means the linking of the Access Channels with
another geographically contiguous cable system, including technical, engineering,
physical, financial and other .necessary components to accomplish, complete and
adequately maintain such linking, in a manner to permit the transmission and
receiving of the PEG Channel(s) between the Cable System and other cable
system(s).
"Locally Scheduled Original Programming" means Public Access, Government
Access or Educational Access programming that is created by the City or any School
or public Access provider including edited coverage of live programming. Such
Locally Scheduled Original Programming shall not be considered as qualifying as
original programming after three (3) cablecasts (initial, first. repeat and second
repeat). Automated Video Programming or community reader board filler, such as
cablecasts of highways and roads does not constitute Locally Scheduled Original
Programming that qualifies herein.
"Noncommercial" means, in the context of Access Channels, that particular products
and services are not promoted or sold. This term shall not be interpreted to prohibit
an Access Channel operator or programmer from soliciting and receiving financial
support to produce and transmit Video Programming on an Access Channel, or from
acknowledging a contribution, in the manner of the Corporation for Public
Broadcasting and applicable law.
"Person" shall have the meaning as provided in Section 1 of the City Code, as
amended.
"Rights-of--Way" means land acquired or dedicated to the public or hereafter
dedicated to the public and maintained under public authority or by others, including
but not limited to public Streets or roads, highways, avenues, lanes, alleys, bridges,
sidewalks, easements where installation of Grantee's facilities is within the scope of
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the easement granted and similar public property located within the City.
"School" means any Washington State accredited K-12 educational institutions,
excluding home schools.
"State" means the State of Washington.
"Street" means Rights-of--Way.
"Subscriber" or "Customer" means any Person who lawfully receives Cable Services
provided by Grantee by means of the Cable System with Grantee's express
permission.
"System" or "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 Cable Service that includes Video Programming and that
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 one or
more television broadcast stations; (2) a facilitythat serves Subscribers without using
any public right-of-way; (3) a facility of a common carrier that is subject, in whole or
in part, to the provisions of Title II of the Federal. Communications Act (47 U.S.C.
Section 201 et seq.), except that such facility shall be considered a cable system
(other than for purposes of Section 621(c) (47 U.S.C. Section 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
services; (4) an open video system that complies with Section 653; or (5) any
facilities of any electric utility used. solely for operating its electric utility systems.
When used herein "System" or "Cable System" means Grantee's Cable System in the
City.
"Tier" means a category of Cable Services provided by the Grantee for which a
separate rate is charged.
"Video Programming" means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
2. Customer Service Standards.
Grantee shall comply with Customer Service Standards, as provided in FCC
standards 47 C.F.R. Section 76.309, Section 76.1602, Section 76.1603 and Section
76.1619 and as may be amended by the City in accordance with applicable law.
Grantee reserves the right to challenge any Customer service ordinance that it
believes is inconsistent with its contractual rights under this Franchise.
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3. Cable Service.
The Grantee, upon request, shall provide without charge, a Standard Installation and
one outlet of Basic to those administrative buildings now existing or hereafter
constructed and owned and occupied or leased and occupied by the City, fire
station(s), police station(s), libraries and School(s), the Park District Central Office
and the building in which the Designated Access Provider is located provided that
they are currently served or are within 125 aerial feet or 60 underground feet (a
Standard Installation) of its Cable System, and provided further that those buildings
or portions of buildings that house or occupy prison/jail populations shall be
excluded. The Cable Service described herein is a voluntary initiative of Grantee and
Grantee agrees to continue this initiative throughout the term of this Franchise. The
Cable Service provided shall not be;distributed beyond the originally installed outlet
without authorization from Grantee. In the case of leased facilities, the City is
responsible for securing approval for appropriate right of entry suitable to the Grantee
in its reasonable discretion. The Cable Service provided shall not be used for
commercial purposes and such outlets shall not be located in areas open to the public.
The intent of the preceding provision is to ensure Access to Cable Services is for the
primary benefit of the City, libraries and Schools. The City shall take reasonable
precautions to prevent any use of the Grantee's Cable System in any manner that
results in the inappropriate use thereof or any loss or damage to the Cable System.
To the extent not inconsistent with other provisions in this Franchise, the City shall
hold the Grantee harmless from any and all liability or claims arising out of the
provision and use of Cable Service provided by this Section. For new hookups, the
Grantee shall not be required to provide an outlet to such buildings where anon-
Standard Installation (beyond 125 aerial feet or 60 underground feet) is required,
unless the City or building owner/occupant agrees to pay the Fully Allocated Costs of
any necessary Cable System extension and/ornon-Standard Installation. If additional
outlets of Cable Service are provided to such buildings beyond those required herein,
the building owner/occupant shall pay the Fully Allocated Costs associated with
installation and the service fees, if any, associated therewith.
4.0 Educational and Governmental Access Channels.
Grantee shall provide at all times during the term of this Franchise at no charge the
following:
Two 2 9ne{ I-}Channels for PEG (Public, Educational, Government) programming.
Additionally, Grantee shall provide at no charge one (1) additional Channel to be
triggered for PEG programming as provided herein.
Each of the above Channels shall be provided at no cost to the City and must be
capable of carrying one standard analog or one digital Channel, on Basic Service.
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Any Access Channels provided via digital or compressed video technology shall have
at least the same transmission quality as is used to carry any of the commercial
Channels that deliver programming on the Cable System and shall be full motion
video, and result in comparable production quality. The provision of Access
Channels via digital or compressed video technology will not reduce the total Access
Channel requirement herein.
In the event Grantee makes any change in the Cable System and related equipment
and facilities or in Grantee's signal delivery technology, that directly or indirectly
affects the signal quality or transmission of Access Channel programming or
services, the Grantee shall, at its own expense take necessary technical steps, and
provide necessary technical assistance, including the acquisition of all necessary
equipment and training of Access personnel, to ensure that delivery of Access video
programming signals is not diminished or adversely affected by such change. For
example, this provision shall apply if Basic Service on the Cable System is converted
from an analog to a digital format, such that the Access Channels must also be
converted to digital in order to be received by Subscribers.
4.1 Management and Control of Access Channels
City may authorize a Designated Access Provider to control, operate, and manage the
use of any and all Access facilities provided by Grantee under this Franchise,
including, without limitation, the operation of Access. Channels. The City and its
designee may formulate rules for the operation of the Access Channels, consistent
with this Franchise.
4.2 Triggers for Expansion of Access Channels
The City may require Grantee to provide at no charge one (l) additional Channel
beyond the initial twoer~e, up to a maximum of threet~e (3~) Channels that shall be
made available for Access programming at such time it occurs that the twofi-rst
Channels arei~ being used for community access or cablecasting Locally Scheduled
Original Programming during at least forty eight (48) hours per week Eighty percent
(80%) of the time between the hours of 10:00 am and 10:00 pm, Monday through
Friday during any consecutive ten weeks running, on the average, and within six (6)
months of the City's request of such additional Channel. This excludes character
generated and filler programming such as NASA, and stationary cablecasts of
highways and .roads. The replay of programs for not more than two (2) times per
week shall be considered as the initial first run programming. Therefore an average
of 3.2 hours ofnon-replay original programming per day on a five day per week basis
for a ten (10) consecutive week period is required to trigger use of this additional
Access Channel. The programming of the additional Access Channel required herein
must contain distinct and non-repetitive programming of the other Access Channels.
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4.3 Underutilized Third~eee~rd Access Channel
Grantee and the City agree that it is their mutual goal to fully and efficiently use the
Channel capacity of the Cable System, which may include allowing the Grantee to
use underutilized time on the seFer~~lthird Access Channel. If Grantee believes that
the seee~l--third Access Channel has significantly underutilized time, Grantee may
file a request with the City to use that time. The City shall render a decision
regarding the matter within sixty (60) days of receiving the request. Should the City
find that the thirdseeend Access Channel or portion of the thirdseee~l Access
Channel may be used by the Grantee, then Grantee may begin using such time ninety
(90) days after receipt of the decision. The Grantee's request shall not be
unreasonably denied. Thereafter, the thirdseeexd Access Charmel shall revert back to
the City upon ninety (90) days written notice from City to Grantee upon the City
meeting the trigger terms referenced herein. However, in no event shall the €rr~two
Access Channels revert to the Grantee.
4.4 Access Channel Identification/Location/Relocation,Prnmotional
Services and Bill Insertions
Change in Charmel placement shall occur with respect to the City Access Channel(s)
at the sole discretion of the Grantee, but shall not be changed unless determined to be
necessary for the improvement of the Grantee's business or to meet Federal or State
guidelines. Written notice shall be provided by Grantee to City ninety (90) days prior
to a change in placement of Channels
Grantee will allow the City to include one bill insertion per year. The insertion will
be no larger than the current size of Grantee's invoice and printed in one color on a
paper stock no heavier than used for Grantee's invoice. The City or Designated
Access Provider shall be responsible for the costs of printing its bill insertions and
the Grantee shall be responsible for the cost of inserting the information into
Grantee's bills and for any incremental postage costs. The bill insertion must conform
to Grantee's reasonable mailing requirements. Grantee shall be provided an
opportunity to review and approve the Access bill insertion.
5. Support for Aeeess-PEG Capital Costs
Grantee shall provide an initial Capital Contribution payment to the City of Eig_hty_
One Thousand Dollars ($81,000) by January 31, 2008 to be used for PEG capital
purposes.
Grantee shall continue collecting from Subscribers an amount of One Dollar ($1.00
per Subscriber per month. Effective February 1, 2008, Grantee shall retain such
amount until the sum total retained by Grantee equals the Capital Contribution as
referred to above. After the Capital Contribution is fully recovered, Grantee shall
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collect from Subscribers and remit to the City the sum of One Dollar ($1.OO~per
Subscriber per month for PEG capital purposes. The Capital Contribution and
subsequent pavments may onl~pplied by the City toward .capital expenditures
related to PEG Access including, but not limited to, studio., City Council chamber
equipment portable production equipment, editing=pro rg am playback equipment,
Access related facilities purchases renovation or construction, local origination, and
return feeds.
Grantee agrees that at the end of the initial 5-wear term and if the Franchise is
extended for an additional. five (5) years Grantee shall provide an additional Capital
Contribution matching the initial Capital Contribution under the same recovery terms
and conditions as the initial Capital Contribution as referred to above. Grantee shall
collect and remit to the City the sum of One Dollar ($1.OO~per subscriber per month
once the additional Coital Contribution is fully_recovered, in the same manner as
provided in the previous paragraph.
Grantee shall not be responsible for withholding, collecting or remitting an~PEG
ca ip tal support on gratis or Bad Debt accounts. The City can inquire as to the status
of any such accounts and the. Grantee agrees to meet with the City, upon request, to
discuss such matters as necessary.
The City shall have discretion to allocate PEG capital support received under this
Section in accordance with applicable law, provided that the City submits a summary
of coital expenditures to Grantee within sixt~(60~ days of the end of each calendar
_year. After Grantee has recouped its Capital Contribution(s) payment, the Cit~may,
at any time waive or subsequently reinstitute the requirement of Grantee to make all
or part of the One Dollar ($1.OO~per Subscriber per month capital payment to City,
provided that Grantee is liven sixty (60) days' advance written notice.
To the extent the City makes Access capital investments using City funds prior to
receiving necessary Capital Contributions funds, the City is entitled to apply
subsequent Capital Contributions~ayments from Grantee toward such City capital
investments. The City and Grantee agree that any Capital Contributions or
subsequent capital pavments shall be referred to on Subscribers' bills as a "PEG Fee",
or language substantially similar thereto. Grantee shall not change such reference on
the Subscribers' bills without the prior written consent of the City, which consent
shall not be unreasonably withheld.
The Capital Contribution pavments are not an advance against any Franchise Fee
a ment and there shall not be an offset or credit a ainst an such Franchise Fee
payment (previously or hereafter made) due to the Capital Contribution pavments
from Grantee to the City.
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6. Access Interconnections
A. The Access Channel(s) Interconnection required by this Franchise shall at the
request and expense of the City and with the approval of the geographically adjacent
jurisdiction where the cable system is owned and operated by Grantee, be completed
so that the Designated Access Provider programming can be carried outside of the
City as well. Grantee shall take all necessary technical steps to ensure that
Downstream transmissions provide an adequate signal quality in accordance with
FCC regulations.
B. In the event that the City elects to carry programming other than that provided
by its Designated Access Provider on its Access Channel(s), the City, at its cost and
expense, shall provide any necessary equipment at the Designated Access Provider
site so that when the City programs or telecasts on the Government Channel it shall
automatically override any other programming. Additionally, it shall be the decision
of the City and not Grantee as to what Access programming is carried on the City
Channel(s) 24 hours per day, seven days per week.
7. Return Lines.
Within ninety (90) days from the date hereof, Grantee shall, at its expense, test and
document a fiber return line from the demarcation point at City Hall to Grantee's
Headend and install any necessary equipment at Grantee's expense at the Headend
and in the Cable System in order to enable the distribution of Access programming to
Subscribers on the Access Channels throughout the duration of the Franchise.
Additionally, within six (6) months from the date of a written request from City,
Grantee shall at the City's expense, construct and activate a fiber return line at Fully
Allocated Cost, or Incremental Costs if it is done at the time Grantee upgrades the
Cable System from the demarcation point identified by the staff at the High School
to the City's Access Provider studio and install any necessary equipment at City's
expense in the Cable System in order to enable the distribution of Access
Programming to Subscribers on the Access Channels throughout the duration of the
Franchise. Should the City or the City's Designated Access Provider elect to move
the location of their facilities during the term of the Franchise or any amendment
thereto, relocating the feeds to the new location shall be the expense of the City.
Should the Grantee elect to have the Designated Access Provider move to another
location, Grantee shall be responsible for the cost of relocating the feed to the new
location.
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8. Institutional Network
In conjunction with and amending its prior commitment in Ordinance No. 2001-52,
Grantee shall, upon receipt of the City's written request conduct an engineering study
to determine the feasibility of an institutional network in the City. This study shall
include the sites specified in the written request, considering system design and
examining feasibility of an institutional network. While the study will not be a
detailed estimate of all engineering design or cost related issues, it will include a
report that addresses the conceptual feasibility of such an institutional network. The
conceptual design shall be for an institutional network for Noncommercial purposes.
Upon receipt of such report by the City, the City and Grantee shall thereafter meet to
examine the possible development of a mutually acceptable institutional network.
9. Service Availability and Extension
A. In general, except as otherwise provided herein, Grantee shall provide
a standard aerial installation or schedule construction for a standard underground
installation of Cable Service within seven (7) days of a request by any Person within
the City. For purposes of this Section, a request shall be deemed made on the date of
signing a service agreement, receipt of funds by Grantee (except as provided in
Section 1, Subsection 3, Cable Service, herein), receipt of a written request by
Grantee or receipt by Grantee of a verified verbal request. Grantee shall provide such
service:
1. With no line extension charge except as specifically authorized elsewhere in
this Franchise.
2. At anon-discriminatory installation charge for a Standard Installation,
consisting of a one hundred twenty-five (125) foot aerial or sixty (60) foot
Underground drop connecting to the exterior demarcation point for Subscribers, with
additional charges for Non-Standard Installations computed according to a non-
discriminatory methodology for such installations.
3. At non-discriminatory monthly rates for all Subscribers, excepting
commercial Customers, MDU Bulk Customers and other lawful exceptions to
uniform pricing.
B. No Customer shall be refused service arbitrarily. However, for unusual
circumstances, such as the existence of more than one hundred twenty-five (125)
aerial feet or sixty (60) underground feet of distance from distribution cable to
connection of service to Customers, or a density of less than twenty-five (25)
Dwelling Units per 5280 cable-bearing strand feet of aerial trunk or distribution cable
or sixty (60) Dwelling Units per 5280 cable-bearing strand feet of underground trunk
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or distribution cable, service may be made available on the basis of a capital
contribution in aid of construction, including cost of engineering, permitting,
material, labor and easements.
10. Quarterly Franchise Fees and Reports
Grantee shall pay as a franchise fee to the City throughout the duration of the
Franchise an amount equal to five percent (5%) of Grantee's Gross Revenues.
Grantee's franchise fee payments to the City shall be computed quarterly for the
preceding calendar quarter ending March 31, June 30, September 30 and December 31
and shall be due and payable no later than forty five (45) days after said dates. Each
quarterly franchise fee payment shall be accompanied by a written report to the City
containing an accurate statement in summarized form with sufficient information
regarding Grantee's Gross Revenues and the computation of the payment amount.
Such reports shall include all Gross Revenues of the Cable System. At a minimum,
each payment shall be accompanied by an explanation of the method of computation
showing (i) Gross Revenues by category (e.g., basic, pay, pay-per-view, advertising,
installation, equipment, late charges, collections, miscellaneous and others) with
specific listings of new revenue sources, etc. and (ii) any deductions.
No acceptance by the City of any franchise fee shall be construed as an accord that
the amount paid is, in fact, the correct amount, nor shall such acceptance of such
payment be construed as a release of any claim the City may have to additional sums
payable.
The franchise fee payments are not payments in lieu of any tax, fee or other
assessment including, but not limited to, the City Utility Tax provided or referred to
in City Code Subsection 5.08.040D (or any amendment or modification thereto or
any successor provision thereto) or any other utility tax or business and occupation
tax.
11. Acquisition of Facilities
Upon Grantee's acquisition of facilities in connection with the Cable System in any
City Rights-of--Way, or upon the annexation to the City of any area, or the annexation
of any area in which Grantee owns or operates any facility in connection with the
Cable System, such area and facilities shall immediately be subject to the terms of
this Franchise.
12. Transfer of Ownership or Control
A. The Cable System and this Franchise shall not be sold, assigned, transferred,
leased or disposed of, either in whole or in part, either by involuntary sale or by
voluntary sale, merger or consolidation; nor shall title thereto, either legal or
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equitable, or any right, interest or property therein pass to or vest in any Person or
entity without the prior written consent of the City, which consent shall be by the
City Council, acting by ordinance or resolution.
B. The Grantee shall promptly notify the City of any actual or proposed change
in, or transfer of, or acquisition by any other party of control of the Grantee. The
word "control" as used herein is not limited to majority stockholders but includes
actual working control in whatever manner exercised. Except as provided in
Subsection H, with respect to a change in control to an Affiliate, every change,
transfer or acquisition of control of the Grantee shall make this Franchise subject to
cancellation unless and until the City shall have consented in writing thereto.
C. The parties to the sale, assignment or transfer or change in control shall make
a written request to the City for its approval of a sale, assignment or transfer or
change in control and shall furnish all information required by law and the City.
D. In seeking the City's consent to any change in ownership or control, the
proposed transferee, assignee or controlling entity shall indicate whether it:
1. Has ever been convicted or held liable for acts involving deceit including any
violation of federal, State or local law or regulations, or is currently under an
indictment, investigation or complaint charging such acts;
2. Has ever had a judgment in an action for fraud, deceit, or misrepresentation
entered against it by any court of competent jurisdiction;
3. Has pending any material legal claim, lawsuit, or administrative proceeding
arising out of or involving a cable system;
4. Is financially solvent, by submitting financial data including financial
statements that are certified by a certified public accountant or an officer of the
transferee or controlling entity, along with any other data that the City may lawfully
require; and
5. Has the financial, legal and technical capability to enable it to maintain and
operate the Cable System for the remaining term of the Franchise.
E. The City shall act by ordinance or resolution on the request within one
hundred twenty (120) days of receipt of the FCC Form 394 application, provided it
has received a completed application. Subject to the foregoing, if the City fails to
render a final decision on the request within one hundred twenty (120) days, such
request shall be deemed granted unless the requesting party and. the City agree to an
extension of time.
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F. Within thirty (30) days of any transfer, assignment or sale or change in
control, if approved or deemed granted by the City, Grantee shall file with the City a
copy of the deed, agreement, lease or other written instrument evidencing such sale,
assignment or transfer of ownership or control, certified and sworn to as correct by
Grantee and the transferee, assignee or controlling entity. In the case of transfer of
ownership, the transferee or assignee shall file its written acceptance agreeing to be
bound by all of the provisions of this Franchise subject to applicable law. In the
event of a change in control, in which the Grantee is not replaced by another entity,
the Grantee will continue to be bound by all of the provisions of the Franchise,
subject to applicable law, and will not be required to file an additional written
acceptance. The approval of a change in control shall not be deemed to waive any
rights of the City to subsequently enforce noncompliance issues relating to this
Franchise. For purposes herein, to the extent that a transfer, assignment, sale or
change of control involves an entity that was not an Affiliate prior to the
contemplated transaction, the City's consent shall be required.
G. In reviewing a request for sale, assignment, transfer or change in control, the
City may inquire into the legal, technical and financial qualifications of the
prospective controlling party, assignee or transferee, and Grantee shall assist the City
in so inquiring. The City may condition said sale, assignment, transfer or change in
control upon such terms and conditions as it deems reasonably appropriate, provided,
.however, any such terms and conditions so attached shall be related to the legal,
technical and financial qualifications of the prospective controlling party, transferee,
or assignee and to the resolution of outstanding and unresolved issues of
noncompliance with the terms and conditions of this Franchise by Grantee.
H. Notwithstanding anything to the contrary in this Subsection, the prior
approval of the City shall. not be required for any sale, assignment, transfer or change
in control of the Franchise or Cable System to an intracompany entity controlling,
controlled by or under the same common control as Grantee, provided that the
proposed assignee,. transferee or new controlling entity must show financial
responsibility as may be determined necessary by the City and must give thirty (30)
days prior written notice to the City and agree in writing to comply with all of the
provisions of the Franchise. Further, Grantee may pledge the assets of the Cable
System for the purpose of financing without the consent of the City; provided that
such pledge of assets shall not impair or mitigate Grantee's responsibilities and
capabilities to meet all of its obligations under the provisions of this Franchise.
13. Notices
Throughout the term of this Franchise, each party shall maintain and file with the
other a local address for the service of notices by mail. All notices shall be sent to
such respective address, and such notices shall be effective upon the date of mailing.
At the effective date of this Franchise:
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Grantee's address shall be:
Comcast of California/Colorado/Washington, L.P.
~~~ 2n+'~ ^~~° c~'15815 25t". Ave. West
Batl}ell~~~~Lynwood, WA 98087
City's address shall be:
City of Bainbridge Island
280 Madison Avenue North
Bainbridge Island, Washington 98110
14. Cumulative Rights
Subject to applicable law, all rights and remedies given to the City by this Franchise
or retained by the City herein shall be in addition to and cumulative with any and all
other rights and remedies, existing or implied, now or hereafter available to the City,
at law or in equity, and such rights and remedies shall not be exclusive, but each and
every right and remedy specifically given by this Franchise or otherwise existing or
given may be exercised from time to time and as often and in such order as may be
deemed expedient by the City and the exercise of one or more rights or remedies
shall not be deemed a waiver of the right to exercise at the same time or thereafter
any other right or remedy.
15. Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted successors
and assigns.
16. Venue
The venue for any dispute related to this Franchise shall be in the United States
District Court for the Western District of Washington or in the Kitsap County
Superior Court in Port Orchard, Washington.
17. Governing Law
The Franchise shall be governed in all respects by federal law, the laws of the State of
Washington and local laws and regulations.
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18. Captions
The captions and headings of this Franchise are for convenience and reference
purposes only and shall not affect in any way the meaning or interpretation of any
provisions of this Franchise.
19. Waiver
The failure of either party at any time to require performance by the other of any
provision hereof shall in no way affect the right of the other party hereafter to enforce
the same. Nor shall the waiver by either party of any breach of any provision hereof
be taken or held to be a waiver of any succeeding breach of such provision, or as a
waiver of the provision itself or any other provision.
20. Severability
If any Section, subsection, paragraph, term or provision of this Franchise is
determined to be illegal, invalid or unconstitutional by any court or agency of
competent jurisdiction, such determination shall have no effect on the validity of any
other Section, subsection, paragraph, term or provision of this Franchise, all of which
will remain in full force and effect for the term of the Franchise.
21. Force Majeure
The Grantee shall not be held in default under, or in noncompliance with, the
provisions of this Franchise, nor suffer any enforcement or imposition of damages
relating to noncompliance or default, where such noncompliance or alleged defaults
occurred or were caused by circumstances reasonably beyond the ability of the
Grantee to anticipate and. control, including war or riots, civil disturbances, floods or
other natural catastrophes, labor stoppages, slow downs, power outages exceeding
back-up power supplies or work delays caused by waiting for utility providers to
service or monitor their utility poles to which the Grantee's Cable System is attached.
22. Attorneys' Fees
If any action or suit arises in connection with this Franchise, the court shall be
empowered to determine who shall be entitled to recover reasonable attorneys' fees,
costs and expenses in connection therewith, in addition to such other relief as the
court may deem proper."
Section 2. Term of Franchise. The Franchise shall be extended. for an additional term of five
(5) years, effective on February 1, 2008 and terminating on January 31, 2013; then at any time during
the three (3) year franchise renewal period, this Franchise may be further extended by mutual
agreement of the parties for five (5) additional years, to January 31, 2018.
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Section 3. Competitive Equity.
(A) The Grantee acknowledges and agrees that the City reserves the right to grant one or
more additional franchises to provide Cable Service within the Franchise Area; provided, the City
agrees that it shall amend this Franchise to include any material terms or conditions that it makes
available to the new entrant within ninety (90) days of the Grantee's request,. so as to ensure that the
regulatory and financial burdens on each entity are materially equivalent. "Material terms and
conditions" include but are not limited to: franchise fees; insurance; system build-out requirements;
security instruments; public, education and government Access Channels and support; customer
service standards; required reports and related record keeping; and notice and opportunity to cure
breaches. If any such additional or competitive franchise is granted by the City which, in the
reasonable opinion of the Grantee, contains more favorable or less burdensome terms or conditions
than this Franchise, the City agrees that it shall amend this Franchise to include any more favorable
or less burdensome terms or conditions in a manner mutually agreed upon by City and Grantee.
(B) In the event an application for a new cable television franchise is filed with the City
proposing to serve the Franchise Area, in whole or in part, the City shall serve or require to be served
a copy of such application upon the Grantee by registered or certified mail or via nationally
recognized overnight courier service.
(C) In the event that a wireline multichannel video programming distributor provides video
service to the residents of the City under the authority granted by federal or State legislation or other
regulatory entity, the Grantee shall have a right to request Franchise amendments that relieve the
Grantee of regulatory burdens that create a competitive disadvantage to the Grantee. In requesting
amendments, the Grantee shall file a petition seeking to amend the Franchise. Such petition shall:
(1) indicate the presence of such wireline competitor; (2) identify the basis for Grantee's belief that
certain provisions of the Franchise place Grantee at a competitive disadvantage; and (3) identify the
regulatory burdens to be amended or repealed in order to eliminate the competitive disadvantage.
The City shall not unreasonably withhold consent to the Grantee's petition.
Section 4. Other than as provided in this Ordinance, the Franchise shall remain unmodified and
continue to be of full force and effect. In the event of an inconsistency between this Ordinance and
the Franchise, this Ordinance shall prevail:
Section 5. This Ordinance, being an exercise of a power specifically delegated to the City
legislative body, is not subject to referendum. This Ordinance shall take effect five (5) days after its
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passage, approval and publication as required by law.
PASSED BY THE CITY COUNCIL THIS 12T" DAY OF DECEMBER, 2007.
APPROVED BY THE MAYOR THIS 20T" DAY OF DECEMBER, 2007.
Darlene Kordonowy, Mayor
ATTEST/AUTHENTICATE:
Rosalind D. Lassoff, CMC, City Clerk
FILED WITH THE CITY CLERK: November 20, 2007
PASSED BY THE CITY COUNCIL: December 12, 2007
DATE OF PUBLICATION: December 26, 2007
EFFECTIVE DATE: December 31, 2007
ORDINANCE NO. 2007-43
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