ORD 2003-26 CABLE TELEVISION SERVICE FRANCHISEJune 25, 2003 City Council Meeting
ORDINANCE NO. 2003-26
AN ORDINANCE OF THE CITY OF BMNBRIDGE
ISLAND, WASHINGTON, RELATING TO CABLE
TELEVISION SERVICE, AND AMENDING THE CITY'S
CABLE TELEVISION FRANCHISE, COMPRISED OF
ORDINANCE NOS. 70-14, 96-22 AND 2001-52
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. 96-22 and Ordinance No. 2001-52 (all hereinafter collectively 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").
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.
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. The Franchise is modified by adding the following thereto as follows:
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 presem tense include the furore, 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 governmemal 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,
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through any arrangement, the management and 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 des igned for residential
occupancy.
"Expanded Basic Service" means Cable Services not included in the Basic Service and
excluding premium or pay-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
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under federal or state law.
"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 the easement granted and similar
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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 facility that 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 a non-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/or non-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:
One (1) Channel 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. 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 requiremem 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 (1) additional Channel beyond the
initial one, up to a maximum of two (2) Channels that shall be made available for Access
programming at such time it occurs that the f'trst Channel is 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 of non-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 Channel.
4.3 Underutilized Second 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 second Access Channel. If Grantee believes that the second Access Channel has
significantly underutilized time, Grantee may file a request with the City to use that time. The
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City shall render a decision regarding the matter within sixty (60) days of receiving the
request. Should the City find that the second Access Channel or portion of the second 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 second Access Channel 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 first Access Channel revert to the Grantee.
4.4 Access Channel Identification/Location/Relocation, Promotional Services
and Bill Insertions
Change in Channel 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 Channel
placement.
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 Access Capital Costs
Commencing within sixty (60) days from the effective date hereof, Grantee shall pay to the
City Capital Contributions payments to be used for Access purposes. These payments are to
be used by the City, in its sole discretion, for Access equipment, for Access-related facilities
renovation or construction purposes in accordance with this Franchise and applicable law. To
the extent allowed by federal law, the Capital Contributions payments may be treated as an
external cost by Grantee and itemized on Subscriber billing statements. Grantee shall pay to
City Capital Contributions for PEG capital costs of up to one dollar ($1.00) per Subscriber per
month. The Capital Contributions will be paid to the City quarterly on the same schedule as
franchise fees. This amount shall initially be one dollar ($1.00) per Subscriber per month and
may be modified by the City with sixty (60) days notice to the Grantee, but shall not in any
case exceed the maximum limit of one dollar ($1.00) per Subscriber per month.
Grantee shall not be responsible for paying the Capital Contributions with respect to 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.
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The City shall have discretion to allocate the Capital Contributions in accordance with
applicable law, provided that the City submits a sum_mary of capital expenditures from the
Capital Contributions to Grantee within sixty (60) days of the end of each calendar year. The
City may institute, reinstitute or waive the requirement of Grantee to make Capital
Contributions to City altogether, provided that Grantee is given 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 payments from Grantee toward such City capital investments. The City and
Grantee agree that any Capital Contributions shall be referred to on Subscribers' bills as a
"PEG Fee", or language substantially similar thereto as allowed by applicable law.
City and Grantee agree that the Capital Contributions referred to herein may be used solely for
capital support. Although the total sum of franchise fee payments and additional commitments
set forth in this Franchise may total more than five percent (5%) of Grantee's Gross Revenues
in any twelve (12) month period, Grantee agrees that the additional commitments regarding
PEG funding and Access Channels are excluded from the definition of franchise fees and are
not franchise fees and are not an advance against any franchise fee payment and there shall not
be any offset or credit against any such franchise fee payment (previously or hereafter made)
due to these payments from Grantee to the City. The Grantee agrees not to assert or otherwise
claim, that as of the effective date of this Franchise or at any time thereafter, before any Court
of competent jurisdiction or any administrative agency, that such PEG funding or Access
Channels are franchise fees as defined under Federal or State Law or regulations so as to form
the basis for any offset or credit against any and/or all franchise fee payments paid or due to
the City.
On an annual basis, City or its designee shall provide to the Grantee a statement
showing quarterly Capital Contributions account balance, the amount expended including a
detailed list of purchases, and the interest earned.
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.
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
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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 a non-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 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 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;
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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 fmancially 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.
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
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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:
Grantee's address shall be:
Comcast of California/Colorado/Washington, L.P.
22025 30th Ave. SE
Bothell, WA 98021
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
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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 thc panics hereto, their permitted successors and assigns.
16. Venue
Thc venue for any dispute related to this Franchise shall bc 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.
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
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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. Section 14 of Ordinance No. 70-14 is amended to read as follows:
(A) If the City believes that Grantee has failed to perform any material obligation
under this Franchise or has failed to perform in a timely manner, the City shall notify Grantee
in writing stating with reasonable specificity the nature of the alleged default. Grantee shall
have thirty (30) days from the receipt of such notice to:
(1) Respond to City contesting City's assertion that a default has occurred
and requesting a hearing in accordance with subsection (B), below; or
(2) Cure the default; or
(3) Notify City that Grantee cannot cure the default within thirty (30) days
because of the nature of the default. In the event that the default cannot be cured within thirty
(30) days, Grantee shall promptly take all reasonable steps to cure the default and notify City
in writing and in detail as to the exact steps that will be taken and the projected completion
date. Upon five (5) business days' prior written notice, either City or Grantee may call an
informal meeting to discuss the alleged default. In such case, if matters are not resolved at
such meeting, City may set a hearing in accordance with subsection (B) below to determine
whether additional time beyond the thirty (30) days specified above is indeed needed, and
whether Grantee's proposed completion schedule and steps are reasonable.
(B) If Grantee does not cure the alleged default within the cure period stated above,
or by the projected completion date under subsection (A)(3), or denies the default and requests
a hearing in accordance with subsection (A)(1), or City orders a hearing in accordance with
subsection (A)(3), City shall set a public hearing to investigate said issues or the existence of
the alleged default. City shall notify Grantee of the hearing in writing and such hearing shall
take place no less than seven (7) days after Grantee's receipt of notice of the hearing. At the
hearing, Grantee shall be provided an opportunity to be heard, to present and question
witnesses, and to present evidence in its defense. At any such hearing, City shall not
unreasonably limit Grantee's opportunity to make a record that may be reviewed should any
final decision of City be appealed to a court of competent jurisdiction. The determination as to
whether a default or a material breach of this Franchise has occurred shall be within the City's
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sole discretion, but any such determination shall be subject to appeal to a court of competent
jurisdiction.
(C) If, after the public hearing, City determines that a default still exists, City shall
order Grantee to correct or remedy the default or breach within fourteen (14) days of City
notification or within such other reasonable timeframe as City shall determine. In the event
Grantee does not cure within such time to City's reasonable satisfaction, City may:
(1) Commence procedures to terminate the Franchise; and
(2) Pursue any other legal or equitable remedy available under this
Franchise or applicable law.
(D) The determination as to whether a violation of this Franchise has occurred
pursuant to this Section herein shall be within the sole discretion of the City. Any such
determination by the City shall be accompanied by a record, to which Grantee's contribution
shall not be unreasonably limited by the City. Any such final determination shall be subject to
the appeal to a court of competent jurisdiction. Such appeal to the appropriate court shall be
initiated within thirty (30) days of the issuance of the determination of the City. City shall
receive notice from Grantee of any appeal concurrent with any filing to a court of competent
jurisdiction.
Section 3. Ordinance No. 96-22 is repealed.
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 days after
its passage, approval and publication as required by law.
PASSED BY THE CITY COUNCIL THIS 25th DAY OF June, 2003.
APPROVED BY THE MAYOR THIS 26th DAY OF June, 2003.
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MAYOR
ATTEST/AUTHENTICATED:
APPROVED AS TO FORM:
By
CITY ATTORNEY
FILED WITH THE CITY CLERK: June 11, 2003
PASSED BY THE CITY COUNCIL: June 25, 2003
DATE OF PUBLICATION: July 2, 2003
EFFECTIVE DATE: July 7, 2003
ORDINANCE NO. 2003-26