Chapter 11.08 TELEVISION CABLE – CONTINENTAL CABLEVISION

This franchise shall be a part of a master ordinance subsequently adopted by the Ellensburg city council (“ordinance”). In the event of a conflict between this franchise and any city ordinance, the provisions of this franchise shall control except where prohibited by applicable law. With the exception of the lawful exercise of the city's police powers, no amendment to any ordinance, rule, regulation, resolution, or other enactment of the city shall be effective upon the operator without the operator's acceptance to the extent that such amendment materially increases the operator's burdens or materially diminishes the operator's benefits hereunder. [Ord. 4112, 1997.]

11.08.020 Purpose.

This franchise shall establish a nonexclusive franchise and shall constitute an agreement between the city of Ellensburg, a Washington municipal corporation (hereinafter the “city”) and King Videocable Company, a Washington corporation, doing business as Continental Cablevision (hereinafter the “operator”). The operator promises to construct, maintain, and operate a cable television system for the distribution of television and other electronic signals pursuant to the terms of this franchise. The city agrees to grant the operator all necessary rights and privileges to use public rights-of-way necessary for a cable television system. This franchise shall, as of its effective date, supersede and replace all existing franchises previously granted by the city to the operator or any of its predecessors, subsidiaries or affiliated companies. [Ord. 4112, 1997.]

11.08.030 Length of franchise.

The length of this franchise shall be for a term of 10 years commencing on the effective date of this franchise. [Ord. 4112, 1997.]

11.08.040 Franchise area.

The operator's service area shall be the entire incorporated area of the city, in its present incorporated form or in any later reorganized, consolidated, enlarged, or re-incorporated form (“franchise area”). [Ord. 4112, 1997.]

11.08.050 Franchise fee.

The operator shall pay to the city quarterly, on or before the thirtieth day of each January, April, July and October, a sum equal to five percent of gross revenues, for the preceding three calendar months, as defined herein.

“Gross revenues” means, for purposes of franchise fee calculations, all revenues received by the operator, in whatever form and from all sources of the operation of the operator's cable system to provide cable services within the franchise area. Gross revenues shall include, but may not be limited to, revenue received from subscribers of the cable system, revenue derived from advertising, installations, home shopping or similar programming, and from leased channels. Gross revenues shall not include (A) funds that the operator is legally obligated to collect for governmental authorities such as sales or similar taxes; (B) bad debt expense; and (C) subscriber deposits. Revenue shall be counted only once in determining gross revenues.

The city may modify the franchise fee if so permitted by federal and state law. Subject to federal and state law, the operator may pass through such amount to its customers. Prior to implementation of any modification in franchise fees, the operator may request a public hearing by the city council to discuss said modification. Following such a hearing, the city council may require the implementation of such modification in accordance with the provisions of this franchise.

A. Late Payment. Any quarterly franchise fee not paid by the operator within 30 days of the end of a quarter shall bear interest at the rate of 12 percent per annum or whatever maximum amount is allowed under state law, whichever is greater, from the due date until paid.

B. Financial Reports. Each franchise fee payment shall be accompanied by a financial report on a form provided by the city showing the basis for the operator's computation, including, without limitation, revenues received by the operator within the city from such items as basic service, expanded basic service, pay TV service, other applicable sources of revenue, and such other information directly related to confirming the amount of the operator's gross revenues as may be reasonably required by the city.

C. Audit by City. The city shall have the right, upon reasonable notice of no less than five working days, to inspect the books and records of the operator during normal business hours, for the purpose of ascertaining the actual gross revenues collected by the operator. In the event that such audit discloses a discrepancy of more than 10 percent between the financial report submitted by the operator with a quarterly payment and the actual gross revenues collected by the operator, the operator agrees to pay to the city the costs of such audit. Payment of the costs of such audit shall be considered charges incidental to the enforcement of the franchise, and do not limit any right the city may have to exercise any other remedy under this franchise. In the event that such audit results in a determination that additional franchise fees are due the city, the operator further agrees to pay interest as required for late payment on such additional franchise fees computed from the date on which such additional franchise fees were due and payable.

D. Nonwaiver. Acceptance of any franchise fee payment by the city shall not be construed as an agreement by the city that the franchise fee paid is in fact the correct amount, nor shall acceptance of payment by the city be construed as a release or waiver of any claim the city may have for further or additional sums payable under the provisions of this franchise.

E. Taxes. Nothing in this section shall limit the operator's obligation to pay applicable local, state, or federal taxes. [Ord. 4112, 1997.]

11.08.060 Police powers.

In accepting this franchise, the operator acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the city to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the city pursuant to such power. The city council expressly reserves unto itself all its police powers to adopt ordinances necessary to protect the health, safety and welfare of the general public in relation to the rights granted under this franchise. The city reserves the right to use, occupy and enjoy any public rights-of-way or other public places for any purpose, including, without limitation, the construction of any water, sewer or storm drainage system, installation of traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, other city services and other public street improvement projects. [Ord. 4112, 1997.]

11.08.070 Technical standards.

Subject to federal, state and local law, the operator shall comply with FCC Rules, Part 76, Subpart K, Sections 76.601 through 76.610 as amended hereafter, and, at the minimum, the following:

A. Applicable city, state and national/federal codes and ordinances;

B. Applicable utility joint attachment practices;

C. The National Electric Safety Code; ANSI C2;

D. City utility code requirements;

E. City rights-of-way procedures.

The operator shall notify the city prior to the date of the semi-annual FCC Proof of Performance Test so that the city, as is its right under the pertinent FCC regulations, may, at its option, monitor the taking of such tests. The operator shall in any event provide a copy of the results of the system evaluation to the city at the same time as submission to the FCC. [Ord. 4112, 1997.]

11.08.080 Technical evaluation.

Based upon a documented pattern of technical problems made known to the operator by the city and which the operator has failed to cure within 30 days, or to initiate a reasonable plan of action to correct such technical problems where the nature of the problem prevents correction within 30 days, the city may review the cable system's performance. During such evaluation session, the operator shall fully cooperate with the city and shall provide without cost such reasonable information and documents as the city may request to perform evaluations.

If, after the evaluation session, the city still has concerns because of reoccurring problems with the operator's cable system, it may retain an independent consultant to conduct an analysis of the cable system and its performance and submit a report of such analysis to the city.

The report prepared by the consultant in response to the city's request for a system evaluation shall include:

A. A description of the technical problem in cable system performance which precipitated the special tests;

B. What cable system components were tested;

C. The equipment used and procedures employed in testing;

D. The method, if any, by which specific performance problems may be resolved;

E. Any other information pertinent to said tests and analyses which may be required by the city.

If the tests indicate that the system is not in compliance with FCC standards or the requirements of this franchise, the ordinance or other applicable law, the operator shall reimburse the city for its actual costs involved in conducting such test, such as consultant fees or other expenses. [Ord. 4112, 1997.]

11.08.090 Reports.

The operator shall furnish annually a report of its activities as appropriate. Such report shall include:

A. The most recent annual report.

B. A copy of the 10-K Report, if required by the Securities and Exchange Commission.

C. The number of homes for which cable is available.

D. The number of subscribers with basic services.

E The number of subscribers with expanded basic services.

F. The number of subscribers with premium services.

G. The number of buy rates for pay per view services.

H. The number of basic connects in the period.

I. The number of disconnects in the period.

J. Total number of miles of cable in the city.

K. A summary of all complaints referred to the city by category, length of time taken to resolve and action taken to provide resolution.

L. Copies of all FCC required service call records.

M. A statement of its current billing practices, and a sample copy of the bill format.

N. A current copy of its subscriber service contract.

O. A current copy of its cable rate sheet delivered to subscribers.

P. A report describing compliance with requirement for the provision of broad programming categories contained in ECC 11.08.190.

Q. Upon request by the city, the franchisee shall provide such other reports with respect to its local operation, affairs, transactions or property that are relevant to compliance with this franchise. [Ord. 4112, 1997.]

11.08.100 Periodic meetings.

Upon request, the operator shall meet with the Ellensburg cable commission, city officials, and/or designated representative(s) to review the performance of the operator for the preceding period. The subjects may include, but are not limited to, those items covered in the periodic reports and performance tests. [Ord. 4112, 1997.]

11.08.110 Ascertainment process.

At least annually, the operator shall arrange and pay for a systematic ascertainment of the community's views regarding the nature and adequacy of the operator's cable services; the cable-related needs and interests of the community and the preferences of subscribers within the operator's franchise area. Such research shall be conducted by an independent nonaffiliated entity using generally accepted market research techniques and shall cover the areas of programming (as discussed in ECC 11.08.190, Programming), customer service, technical aspects and overall satisfaction with the operator's performance. A written summary of the findings, prepared by the independent entity and including a description of the methodology used, shall be provided to the city and the operator. [Ord. 4112, 1997.]

11.08.120 Customer service.

The operator shall at all times be in compliance with FCC Customer Service Obligations 76.309, Subpart II, as now existing or as may be amended, which standards are incorporated into this franchise by reference (“FCC customer service standards”). The city, however, reserves the right to impose more stringent requirements pursuant to its police powers. [Ord. 4112, 1997.]

11.08.130 Telephone response.

In order that the city may be informed of the operator's success in achieving satisfactory customer relations in its telephone answering functions, the operator shall, upon request by the city, and routinely no less than quarterly, provide the city with a summary that will provide, at a minimum, the following:

A. Number of calls received per hour;

B. Time taken to answer;

C. Average talk time;

D. Number of calls abandoned by the caller;

E. Percentage of time all lines busy;

F. An explanation of any abnormalities.

This data will be compared to minimum standards of the FCC customer service standards.

Calls for service generated during system failure due to an emergency affecting more than 25 customers may be excluded from the service response calculations. [Ord. 4112, 1997.]

11.08.140 Failure to improve customer service.

The city or its designee shall review telephone response and customer service information with the operator. It will be assumed that improvements will be made by the operator in the areas of noncompliance from the last reporting period. Continued noncompliance, after written notice from the city to the operator, may constitute a breach. [Ord. 4112, 1997.]

11.08.150 Refunds for outages.

Upon request of a subscriber, no charge for the period of an outage shall be made to the subscriber if the subscriber was without service for a period exceeding 12 hours. [Ord. 4112, 1997.]

11.08.160 Termination of subscriber service.

Upon termination of any subscriber, the operator shall promptly remove all of its facilities and equipment, excepting drop cable and internal wiring, from the premises of such subscriber upon the subscriber's request, except as provided in subsection (B) of this section.

A. Charges Upon Failure to Recover Equipment. Upon termination of services, the subscriber shall not be charged for continued services.

B. Equipment Returns. Should the operator require the subscriber to return the equipment, the operator shall maintain convenient hours for the return of the equipment. The subscriber shall be advised of a reasonable date by which the equipment must be returned before a charge may be imposed for failure to return the equipment. [Ord. 4112, 1997.]

11.08.170 Future provisions.

A. System Upgrade. In accordance with the requirements of the operator's social contract with the Federal Communications Commission, the operator's cable system shall be upgraded to 550 MHz by December 31, 1999, so that, at all times thereafter, the cable system meets or exceeds the following requirements: the cable system shall have the capacity to carry at least 77 video programmed channels with capability of delivering two-way information, including high-speed data, to all subscribers.

B. Should the operator rebuild the cable system to 750 MHz at any time during this agreement, the term of this franchise shall be extended an additional five years to enable the operator to recover such costs. [Ord. 4112, 1997.]

11.08.180 Emergency override.

The operator shall be in compliance by no later than the date mandated with FCC regulations requiring installation of an emergency alert system (EAS) and provide an audio interrupt on all channels and a video message on at least one channel during an emergency.

Subject to federal and state laws and regional planning authorities, during an emergency the city may preempt the operation of the system. The city, in conjunction with adjacent jurisdictions served by the same system, may elect to share this service. [Ord. 4112, 1997.]

11.08.190 Programming.

For informational purposes the operator shall file a listing of its programming and the tiers in which they are placed. The operator shall carry a minimum of 20 channels along with any required PEG access channels as a part of its basic channel package. In addition to programming provided on PEG channels and local off-air broadcast channels, if any, the operator shall provide the following broad categories of programming on the system:

A. Education;

B. News and information;

C. Sports;

D. Cultural and performing arts;

E. Government and public affairs;

F. Weather;

G. Consumer;

H. Children;

I. Movies;

J. Business;

K. Family;

L. Science/documentary;

M. International;

N. Food/travel/gardening;

O. General entertainment;

P. Programming addressed to diverse ethnic and minority interests;

Q. Audio programming.

If any listed broad category of service or video programming shall become unavailable, or is commercially impractical, or cannot be provided under existing FCC regulations, the operator shall provide substitute programming of a similar nature, if reasonably available. [Ord. 4112, 1997.]

11.08.200 Access channels.

A. Upon request of the city council, the operator shall make the following local access channels available to the city on the dates specified:

1. Local Government Channel. The existing channel shall continue to be used for government programming and shall be capable of cablecasting character-generated announcements, videotape playback and capable of live broadcast from City Hall within six months of the effective date of this franchise.

2. Educational Access. Three channels following the date of the upgrade of the system as follows: two for the use of Central Washington University, and one for the use of the Ellensburg School District.

3. Local Public Access. One channel upon completion of the upgrade of the system.

4. Origination Points. So that PEG programming can continue to be cablecast live from the existing insertion points, the operator shall rebuild, using fiberoptic technology, those return lines carrying the programming from the insertion points back to the headend.

B. Additionally, upon completion of the upgrade, the city will be given one additional channel for it to allocate as it deems necessary for public and government access uses (“triggered access channel”). Such additional channel shall be made available when a channel is used for access purposes with locally produced programming during 70 percent of the hours between 10:00 a.m. and 10:00 p.m., during any consecutive 10-week period. The programming of additional channels required shall be distinct and nonrepetitive of the previous channels. A program may be repeated no more than three times for purposes of the trigger calculation. For purposes of this computation, all time allocated to character-generated or similar programming shall be excluded from the determination of when such channel is in use and programmed with public and governmental access programming during the period in question. “Locally produced programming” shall mean programming produced in Kittitas County, Washington, for public access purposes, and programming produced in Washington State for governmental access purposes. The operator shall make available such additional public and governmental access channel within 60 days following a written notice from the city that the above criterion has been satisfied for this purpose.

C. After 180 days of operation of the triggered access channel, and upon 60 days' written notice, operator may make use of the triggered access channel for its own purposes if said channel no longer fits the above criteria for a period of 10 consecutive weeks. [Ord. 4112, 1997.]

11.08.210 Access broadcasting equipment.

To provide the local access required by ECC 11.08.200, Access channels, the operator shall, upon request, provide the city with an annual payment of up to $0.50 per cable customer per month, which shall be increased each year by the increase in the U.S. Consumer Price Index, for the maintenance and operation of access channels. Additionally, the operator will provide to the city a one-time contribution of $75,000 to be used for capital purchases to upgrade the equipment currently in use by the access channel. These funds shall be made available to the city no less than 60 days following the request by the city council. [Ord. 4112, 1997.]

11.08.220 Public buildings.

The operator shall provide basic service without charge for standard installation or monthly rate to such public buildings and schools as specified in Appendix “A” at the end of this chapter as well as other such public buildings that may be constructed during the period of the franchise, subject to the operator's service extension policy. [Ord. 4112, 1997.]

11.08.230 Institutional networks (I-nets).

Upon the city council's request, the operator shall provide all public buildings designated by the city with a communications network allowing for voice, video and data communications between selected locations. The operator shall pay for labor costs to construct and install the network, while the city shall pay the operator for the entire cost of materials (including fiber, coax, etc.) used in the construction of the network. This closed network shall be capable of upstream and downstream transmission and may use any technically suitable method (e.g., fiber, coax, microwave, etc.) approved by the city. The operator shall provide adequate bandwidth or fibers to handle the individual necessities of the specific users.

A. Municipal Network. Public buildings as shown in Appendix “A” at the end of this chapter shall be interconnected to each other.

B. Educational Network. Those schools and libraries as indicated in Appendix “A” at the end of this chapter shall be interconnected to each other. As future requirements may so dictate, coordination with other regional educational entities may necessitate interface with adjacent school districts and community colleges as appropriate.

New buildings constructed subsequent to the date of this franchise shall likewise be furnished with the same capability pursuant to the same terms.

The operator shall be responsible for the continued repair and maintenance of the network; however, the city will be responsible for the materials and equipment required to transmit and receive at each location. [Ord. 4112, 1997.]

11.08.240 Access to Internet.

Within one year after the operator makes an online service for personal computers commercially available in the franchise area, the operator will, upon request by the local school district, provide public schools within the franchise area with one free connection to such online service. At a minimum, such online service will provide access to the Internet. Upon request, each connected school will receive one free cable modem and free, unlimited access to the online service for use during the school year. Additional cable modems will be provided to connected schools at cost to operator, upon request. Free access to the operator's online service will be provided through each such modem for use during the school year, which includes summer months if the school offers any classes during the summer months. For purposes of this section, “cost” means actual dollars used to purchase or acquire materials, to which shall be added an amount equal to 11.25 percent of the actual dollar cost as a reasonable rate of return, overhead and administrative expenses. [Ord. 4112, 1997.]

11.08.250 Construction standards.

All cable facilities constructed under this franchise shall be placed and maintained at such places and positions in or upon such public rights-of-way and public places as shall not interfere with the passage of traffic and the use of adjoining property, and shall conform to the applicable section of the National Electrical Code, codes of the state of Washington, and city rules, regulations, ordinances, codes, standards and policies pertaining to such construction.

At least 15 days prior to the intended construction, the operator shall inform all residents in the affected area that a construction project will commence, the dates and nature of the project, and a toll-free telephone number which the subscriber may call for further information. A preprinted door hanger may be used for this purpose. The city reserves the right, as the interest of the public may require, to require the installation or construction of new cable facilities proposed by the operator to be constructed in arterial thoroughfares or to be installed in alternate public rights-of-way which are substantially comparable in terms of the expense to the operator for installation or construction, and which provide distribution to all affected parcels of property that is equal to or better than the requested installation route. The city shall give particular preference to the alternate installation location in cases in which the existing improvements to the public right-of-way would be affected by the proposed installation, or where the structural integrity of the surface of the right-of-way, or inconvenience to the public caused by the proposed installation cannot be mitigated through alternative means.

A. Notice of Entry on Private Property. At least 24 hours prior to entering private property or streets or other public property or easements adjacent to or on such private property to perform new plant construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted upon the affected property. The operator shall make a good faith effort to comply with the property owner/resident's preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices.

B. Emergency Repairs. Notice requirements of subsection (A) of this section are suspended for purposes of entry upon private property to perform repairs at the subscriber's request or in the event of system outage repairs or other emergencies in which insufficient time is available to provide notice to subscribers.

C. Restoration of Property. After performance of work, the operator shall restore private property as nearly as possible to its condition prior to construction. Any disturbance of landscaping, fencing, or other improvements on private property shall, at the sole expense of the operator, be promptly repaired and restored (including replacement of such items as shrubbery and fencing) to the reasonable satisfaction of the property owner.

D. Location of Cable Facilities. In connection with the original installations of cable facilities, the operator shall locate the cable facilities in relationship to all other utilities and within the right-of-way pursuant to the city's instructions. The operator shall install a means of detection device with all new or relocated underground cable facilities, which will allow subsequent location. In all cases where practicable, the cable communications system shall be laid in those sections of streets so as not to unnecessarily or unreasonably tear up the streets except where necessary and required to cross streets as determined by the operator and approved by the city, and shall be so laid as to make cable available to all of the city customers along the affected street.

The location of all cable facilities, and their depth below the surface of the ground or grade of any public rights-of-way, shall be approved by the city through its permitting process. The operator shall at all times keep full and complete plans, plat or plats, specifications, profiles and records showing the exact location and size of all cable facilities laid in the city. These records shall be subject to inspection at all reasonable times by the proper officials and agents of the city, and a copy of these plans, plat or plats, specifications, profiles and records shall be furnished to the city upon request. Upon completion of installation of the cable facilities, the “as-built” location of the cable facilities shall be no greater than two feet from the location of the cable facilities shown in the plans on file with the city. [Ord. 4112, 1997.]

11.08.260 Undergrounding and landscaping.

In those areas and portions of the city where the transmission or distribution facilities of the public utility providing telephone service or those of the facility providing electric service are underground or hereafter may be placed underground, then the operator shall likewise construct, operate and maintain all of its transmission and distribution cable facilities in the same area underground upon city approval. Such activities shall be made in concurrence and cooperation with the other affected utilities. Amplifiers and associated equipment in the operator's transmission and distribution lines may be in flush-mount housing upon the surface of the ground. [Ord. 4112, 1997.]

11.08.270 Construction in right-of-way.

A. Right-of-Way Permit. The operator shall submit an application for, pay the permit fee, and obtain a right-of-way permit to perform work in any public rights-of-way. No work, other than emergency repairs, shall commence without such a permit. Emergency repairs may be made immediately with notification given to the city no later than the next business day.

B. Installation. In accordance with the permit issued, all transmission lines, equipment, and structures shall be located and installed so as to cause minimum interference with the rights and reasonable convenience of property owners, and at all times shall be maintained in a safe condition, and in good order and repair. Suitable barricades, flags, lights, flares, or other devices shall be used at such times and places as are reasonably required for the safety of the public. Any poles or other fixtures placed in any street by the operator shall be placed in such manner as not to interfere with the usual travel on such public way.

C. Interference with Use of Streets. When installing, locating, laying, or maintaining cable facilities, apparatus, or improvements, the operator shall not interfere with the use of any street to any greater extent than is necessary, and shall leave the surface of any such street in as good condition as it was prior to performance by the operator of such work. Any facility, apparatus, or improvement under this franchise shall be laid, installed, located, or maintained in conformance with instructions given by, and to the satisfaction of, the city. In any event, the operator shall, at its own expense, and to the satisfaction of the city in accordance with the terms of the right-of-way permit, restore to city standards and specifications any damage or disturbance caused to streets as a result of the operator's construction or operations.

D. Relocation/Removal. Upon receipt of 60 days' prior written notice, the operator, at its own expense, and within the time period prescribed by the city, shall protect, support, temporarily disconnect, relocate, or remove any of its cable facilities or property when, in the judgment of the city, the same is required by reason of traffic conditions, public safety, or improvements by governmental agencies. Nothing herein shall be deemed a taking of the property of the operator, and the operator shall be entitled to no surcharge by reason of this section.

E. City's Performance of Work. After receipt of 30 days' prior written notice, and upon the failure of the operator to commence, pursue, or complete any work required by the provisions of this franchise or failure to comply with any applicable federal, state or city laws, ordinances, rules, regulations or standards to be performed on any street, within the reasonable time prescribed by city, the city may, at its option, cause such work to be done, and the operator shall pay to the city the reasonable cost thereof, which costs may include the city's reasonable overhead and administrative expense, within 30 days after receipt of demand. [Ord. 4112, 1997.]

11.08.280 Safety requirements.

The operator, in accordance with applicable national, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public. All structures and all lines, equipment and connections in, over, under, and upon the public rights-of-way or places of a franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.

The city reserves the general right to see that the system of the operator is constructed and maintained in a safe condition. [Ord. 4112, 1997.]

11.08.290 Building moving.

Whenever any person shall have obtained a permit from the city to use any street for the purpose of moving any building, the operator, upon seven days' written notice from the city, shall raise or remove, at the expense of the permittee desiring to move the building, any of the operator's wires which may obstruct the removal of such building; provided, that the moving of such building shall be done in accordance with all city codes, regulations and general ordinances of the city. The operator shall be indemnified and held harmless from any and all damages or claims of whatsoever kind or nature, caused directly or indirectly from this action, except to the extent such damages or claims are the result of the operator's negligent action. [Ord. 4112, 1997.]

11.08.300 Tree trimming.

Upon prior approval of the city and in accordance with all city rules, regulations, ordinances, policies and standards, the operator shall have the authority, at its expense, to trim trees upon and overhanging streets, public rights-of-way and places in the franchise area so as to prevent the branches of such trees from coming in contact with the wires and cables of the operator. The operator shall be responsible for debris removal from such activities. [Ord. 4112, 1997.]

11.08.310 Cable availability.

Cable service shall not be denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. [Ord. 4112, 1997.]

11.08.320 Coverage.

During the franchise term, the operator shall provide cable service to any area in the entire franchise area where the density of potential households to be passed is equal to or greater than 25 households per linear mile in areas passed by overhead cable or 40 households per linear mile in areas passed by underground cable; provided, that all such permission as may be required from the owner of the property is reasonably available, and that service to multiple dwelling units need be provided only on terms acceptable to the operator. In areas with less than 25 households per linear mile aerial or 40 households per linear mile underground, service shall be offered in conformance with the operator's service extension policies. Where a portion of the franchise area does not meet this minimum density requirement as of the effective date of this franchise agreement, but does meet this density requirement subsequently, the operator shall provide service within three months of being notified of such area meeting this density. Areas subsequently annexed shall be provided with cable availability within 12 months, subject to this density threshold. [Ord. 4112, 1997.]

11.08.330 Cable system evaluation.

In addition to periodic meetings, the city may require reasonable evaluation sessions at any time during the term of this franchise.

It is intended that such evaluations cover areas such as customer service, response to the community's cable-related needs, and the operator's performance under and compliance with the terms of this franchise. [Ord. 4112, 1997.]

11.08.340 Record inspection.

Subject to statutory and constitutional limits and 48 hours' advance notice, the city reserves the right to inspect the records of the operator necessary for the enforcement of this franchise at any time during normal business hours; provided, that the city shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of the operator. Such documents shall include information such as financial records, subscriber records and plans pertaining to the operator's operation in the city. [Ord. 4112, 1997.]

11.08.350 Nondiscrimination.

In connection with rates, charges, cable facilities, rules, regulations and in all the operator's services, programs or activities, and all the operator's hiring and employment made possible by or resulting from this franchise, there shall be no discrimination by the operator or by the operator's employees, agents, subcontractors or representatives against any person because of sex, age (except minimum age and retirement provisions), race, color, creed, national origin, marital status or the presence of any disability, including sensory, mental or physical handicaps, unless based upon a bona fide occupational qualification in relationship to hiring and employment. This requirement shall apply, but not be limited to, the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The operator shall not violate any of the terms of Chapter 49.60 RCW, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973 or any other applicable federal, state or local law or regulation regarding nondiscrimination.

Any material violation of this provision shall be grounds for termination of this franchise by the city and, in the case of the operator's breach, may result in ineligibility for further city agreements; provided, that nothing in this franchise shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled; and provided further, that connection and/or service charges may be waived or modified during promotional campaigns of the operator. [Ord. 4112, 1997.]

11.08.360 Continuity of service.

It shall be the right of all subscribers to continue receiving service so long as their financial and other obligations to the operator are fulfilled. In this regard the operator shall act so far as it is within its control to ensure that all subscribers receive continuous uninterrupted service during the term of this franchise.

In the event the operator fails to operate a system for 72 continuous and consecutive hours without prior notification to and approval of the city council or without just cause such as an impossibility to operate the system because of the occurrence of an emergency or other circumstances reasonably beyond the operator's control, the city may, after notice and an opportunity for the operator to commence operations at its option, operate the system or designate someone to operate the system until such time as the operator restores service or a replacement operator is selected. If the city is required to fulfill this obligation for the operator, the operator shall reimburse the city for all reasonable costs or damages in excess of revenues from the system received by the city that are the result of the operator's failure to perform. [Ord. 4112, 1997.]

11.08.370 Transfer of ownership.

This franchise shall not be sold, transferred, leased, assigned, or disposed of in whole or in part either by sale, voluntary or involuntary merger, consolidation or otherwise, unless written approval is granted by the city council to ensure a review of unforeseen circumstances not present at the time of the original franchise. The city's approval shall not be unreasonably withheld.

An assignment of this franchise shall be deemed to occur if there is an actual change in control or where ownership of 50 percent or more of the beneficial interests, singly or collectively, are obtained by other parties. The word “control” as used herein is not limited to majority stock ownership only, but includes actual working control in whatever manner exercised.

The operator shall promptly notify the city prior to any proposed change in, or transfer of, or acquisition by, any other party of control of the operator's company. Every change, transfer, or acquisition of control of the operator's company shall cause a review of the proposed transfer. In the event that the city adopts a resolution denying its consent and the operator nevertheless consummates such change, transfer or acquisition, then the city may deem the operator to be in material breach of this franchise. Approval shall not be required for mortgaging purposes or if said transfer is from the operator to another person or entity controlling, controlled by, or under common control with the operator. Nothing herein contained shall be construed to grant the operator the right to transfer or change control of this franchise or any part thereof, except in the manner aforesaid.

The city will monitor the limitations or ownership, control, utilization and restrictions on sale of systems in accordance with the Act.

Any new operator shall agree to abide by the terms of this franchise, as well as any other ordinances, rulings, judgments or orders that may have been lawfully imposed upon the original operator and relate to this franchise. [Ord. 4112, 1997.]

11.08.380 Removal and abandonment of property of franchisee.

The city may direct the operator to temporarily disconnect or bypass any equipment of the operator in order to complete street construction or modification, install and remove underground utilities, or for any other public safety reasons. Such removal, relocation or other requirement shall be at the sole expense of the operator.

In the event that the use of any part of the cable system is discontinued for any reason for a continuous period of 12 months or more, or in the event such system or property has been installed in any public right-of-way or other public place without complying with the requirements of this franchise or other city ordinances or this franchise has been terminated, canceled or has expired, the operator shall, within 120 days after notice by the city, vacate and remove at its expense from the public right-of-way or other public place all designated portions of the cable system within the city and shall restore said streets as near as is reasonably possible to their former condition; provided, however, that the operator shall have the right to sell its physical plant to a subsequent operator or to the city, subject to city approval, in which case said plant need not be removed. The requirements of this section shall not apply to underground cable that has been de-energized and for which an accurate map (“as built”) has been provided to the city describing in detail the location of such cable; except that the city may continue, in its discretion, to require removal within a reasonable time, where necessary to avoid congestion.

Any property of the operator remaining in place 120 days after the lawful termination or expiration (without renewal) of this franchise shall be considered permanently abandoned. The city retains the discretion to extend such removal time period.

Upon permanent abandonment of the property of the operator in place, the property shall become that of the city, and the operator shall submit to the city clerk an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property. None of the foregoing affects or limits the operator's rights to compensation for an involuntary abandonment of its property under state or federal law. [Ord. 4112, 1997.]

11.08.390 Revocation for cause.

A. Rights of the City. In lieu of exercising any of the other remedies provided in this franchise, or the remedies available under applicable law, the city may revoke the franchise and void the franchise agreement only for defaults by the operator arising from the following circumstances:

1. The operator attempts to or does practice any meaningful fraud or deceit in its conduct or relations under this franchise agreement or in the process of being granted the rights, authority, power, privileges and permission hereunder; or

2. The operator attempts deliberately to evade any material provision of this franchise agreement. Without limitation, the following shall constitute material breaches of this franchise:

a. Failure or refusal to pay any required financial support for access channels;

b. Failure to provide required channel capacity;

c. Failure to provide a minimum of 20 channels as part of its basic channel package;

d. Failure to provide the broad categories of programming specified in ECC 11.08.190;

e. Failure to pay franchise fees required by ECC 11.08.050;

f. Failure to upgrade the cable system by December 31, 1999;

g. Failure to provide an institutional network in accordance with ECC 11.08.230;

h. Failure to obtain insurance as required by ECC 11.08.460; and

i. Failure to furnish a performance bond as required by ECC 11.08.470; or

3. The operator fails to correct any material breach of this franchise agreement after notice and opportunity to cure; or

4. The operator substantially and repeatedly violates this franchise agreement or applicable federal law regardless of whether any single provision violated is deemed immaterial; or

5. The operator becomes insolvent, or is involuntarily bankrupt, or files a voluntary bankruptcy petition for relief under the Federal Bankruptcy Act or any similar federal or state law for relief of debtors; or

6. The operator abandons its franchise.

B. Rights of Operator. Notwithstanding any provision of a master cable ordinance or any other city ordinance to the contrary that could be read to limit the operator's rights, before the city revokes the franchise, it shall:

1. Provide reasonable advance written notice to the operator of the violation;

2. Permit the operator to have a full and fair opportunity to be heard on the issue; and

3. Allow the operator to appear and present evidence relevant to determining whether the violation has occurred, and the appropriate remedy for the violation, if any.

C. Procedures Prior to Revocation.

1. Notice of Violation. The city shall provide the operator with a detailed written notice of any franchise violation upon which it proposes to take revocation action, and a 30-day period within which the operator may demonstrate that a violation does not exist or to cure an alleged violation, or if the nature of the violation prevents correction of the violation within 30 days, to initiate a reasonable plan of action to correct such violation (including a projected date by which it will be completed) and notify the city of such plan of action.

2. Default. If the operator fails to disprove or correct the violation within 30 days or, in the case of a violation which cannot be corrected in 30 days and the operator has failed to initiate a reasonable plan of corrective action and to correct the violation within the specified time frame, then city may declare the operator in default, which declaration must be in writing.

3. Hearing Available to Operator. Within 15 days after receipt of a written declaration of default from the city, the operator may request, in writing, a hearing before the city council, in a full public proceeding providing the operator with the opportunity to participate, call witnesses, cross-examine witnesses, and to submit written testimony and documentation. Such hearing shall be held within 45 days of the receipt of the request therefor. A decision shall be rendered within 30 days after the conclusion of the hearing. Any decision shall be in writing and shall be based upon written findings of fact.

D. Duty to Exhaust Remedies. In the event of any dispute between the operator and the city arising out of this franchise agreement, the parties agree to pursue and exhaust any administrative remedies provided by law, including 47 U.S.C. Section 545, prior to pursuing any judicial remedy.

E. Appeal of Revocation. If the operator appeals the city council's revocation and termination, such revocation shall be held in abeyance pending judicial review by a court of competent jurisdiction, provided the operator is otherwise in compliance with this franchise.

F. Issuance of New Franchise. Nothing contained in the above subsections of this section shall prevent the issuance of a new franchise containing terms substantially the same or identical to a franchise which previously was revoked, upon satisfactory assurances made to the city council that the terms and conditions of this franchise can be met by a new operator. [Ord. 4112, 1997.]

11.08.400 Effect of termination for noncompliance.

Subject to state and federal law, if any franchise is terminated by the city by reason of the operator's noncompliance, that part of the system under such franchise located in the streets and public property shall, at the election of the city, become the property of the city at a cost consistent with the provisions of the Act. If the city, or a third party, does not purchase the system, the operator shall, upon order of the city council, remove the system as required under ECC 11.08.380, Removal and abandonment of property of franchisee. [Ord. 4112, 1997.]

11.08.410 Operation of cable system after termination or expiration.

A. Subject to the requirements of federal law, if the city has terminated this franchise as provided in ECC 11.08.400, or if the initial term of this franchise has expired without the franchise being renewed or extended, and if the city has so ordered by ordinance, the operator shall continue its operations for a period of up to 270 additional days. During this period, the operator shall not transfer any portion of its cable system to any other person, including parts of the system rented, leased or leased-purchased from others by the operator, without the prior consent of the city.

B. Within 30 days of the effective date of termination or following the expiration of the term of this franchise, if the city has not otherwise renewed or extended the franchise, the operator shall submit a report (hereafter referred to as the “system reports”) to the city setting out operator's assessment of the book value of the assets of operator's cable system and their fair market value and the methodology, assumptions and limiting conditions underlying the operator's appraisal. In addition, the operator shall provide such further information regarding its technical and customer operations, contractual or other legal obligations, and financial history and current conditions as the city may request.

C. At any time within 60 days after receiving the system report, the city may notify the operator that it desires to acquire by purchase all or a portion of operator's cable system.

D. For purposes of this section, the price of the operator's cable system shall be fair market value, less any offsets, as determined by mutual agreement between the city and the operator. If the city and the operator are unable to agree within 120 days after the city gives notice of desire to purchase under subsection (C) of this section, then the city may demand that such price and/or any offsets the city may claim be determined by arbitration, in which case, following the arbitrator's determination, the city shall have the option to purchase the cable system for the price determined by the arbitrator. In the case of the expiration of the franchise without renewal, fair market value shall be reduced by the amount of any lien, encumbrance, or other obligation of the operator which the city may assume.

E. For purposes of this section, “book value” shall mean the fully depreciated assets of the operator.

F. In the event of the city's acquisition of all or portions of the operator's cable system, as provided in this section, the operator shall consent to assignment of any rental, lease, and lease-purchase arrangements for the operator's cable system or any facilities and shall use all best efforts to obtain consent to assignment, to the extent any existing and future rental, lease, and lease-purchase arrangements for the operator's cable system or any facilities require such consent, and shall cause any entity it controls to so consent.

G. This section shall not apply where a franchise is not required by applicable law. [Ord. 4112, 1997.]

11.08.420 Indemnity and hold harmless.

To the extent permitted by law, and except for matters arising out of the city's negligence, the operator agrees to indemnify and hold the city, its elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney's fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this franchise to the extent caused by the negligent acts, errors or omissions of the operator, its partners, shareholders, agents, employees, or by the operator's breach of this franchise. In the event it is determined that RCW 4.24.115 applies to this franchise, the operator nevertheless agrees to defend, hold harmless and indemnify the city as described above to the full extent of the operator's negligence. The operator specifically understands that these indemnity provisions shall apply to claims resulting from the concurrent negligence of the city or its agents or employees to the maximum extent permitted under RCW 4.24.115. This indemnity, however, does not apply to (A) the content of programming carried on any channel set aside for public, educational or governmental use, or channels leased pursuant to 47 U.S.C. Section 532, unless the operator was engaged in determining the editorial content of the program; or (B) the city's use of the operator's EAS capability.

The city must give the operator timely written notice of the making of any claim or of the commencement of any action, suit or other proceeding covered by the indemnity of this section. In the event such claim arises, the city or any other indemnified party shall tender the defense thereof to the operator and the operator shall have the right to defend, settle or compromise any claims arising hereunder and the city shall cooperate fully therein. The provisions of this section shall survive the expiration or termination of this franchise with respect to any event occurring prior to such expiration or termination. [Ord. 4112, 1997.]

11.08.430 Discounts.

The operator shall offer a discount of 25 percent from the standard residential rate for basic service and installation to those individuals age 65 or older who are the legal owner or lessee/tenant of their residence; provided, that their combined income from all sources falls within the criteria currently in use by the city for providing discounts to low income individuals for water and power services. Those individuals receiving service over and above the basic cable service will not be eligible for this discount. [Ord. 4112, 1997.]

11.08.440 Extraordinary installation charges.

All residents requesting cable service and living within 125 feet of existing cable distribution or trunk 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 125 feet from an existing cable distribution or trunk line, such installation shall be completed on a time and material cost plus customary overhead basis for that portion of the service line extending beyond 125 feet. [Ord. 4112, 1997.]

11.08.450 Liquidated damages.

A. Amounts. Because the operator's failure to comply with the provisions of the franchise will result in injury to the city in amounts that will be difficult to quantify with reasonable certainty, the city and the operator agree to the following liquidated damages for the following violations. These damages represent the parties' best estimate of the damages resulting from the specified injury.

1. For failure to complete the upgrade of the cable system by December 31, 1999, $10,000 per month for each month the violation continues;

2. For failure to conform to customer service standards as required by ECC 11.08.120, Customer service, $300.00 per occurrence.

3. For failure to provide public, educational, and governmental access channels as required by ECC 11.08.200, Access channels, $125.00 per day for each day the violation continues.

4. For failure to provide funds for PEG access broadcasting as required by ECC 11.08.210, Access broadcasting equipment, $125.00 per day for each day the violation continues.

5. For failure to activate the institutional network as required by ECC 11.08.230, Institutional networks (I-nets), $125.00 per day for each day the violation continues.

6. For failure to provide cable service to existing and future annexed areas as required by ECC 11.08.320, Coverage, $125.00 per day for each day the violation continues.

7. For all other material violations of this franchise, $125.00 per day for each day the violation continues.

B. Date of Violation, Notice and Opportunity to Cure. The date of the violation will be the date on which the operator receives notice of the violation. The city must provide the operator with written notice of a violation. Upon receipt of written notice, the operator will have a period of 30 days to cure the violation or to present the city with a reasonable remedial plan where such violation cannot be cured within 30 days. The city, in its sole discretion, shall decide whether to accept or reject the remedial plan presented by the operator. If the operator denies that it is in violation, it shall have the opportunity to request a hearing pursuant to ECC 11.08.390(C)(3). Liquidated damages occur only in the event either cure has not occurred within 30 days or the city rejects the remediation plan. Damages will be retroactive to the date of the violation.

C. Effect on Duty to Comply. The collection of liquidated damages by the city shall in no respect affect the operator's obligation to comply with the provisions of this franchise or applicable law.

D. Accrual. Monetary penalties may be assessed retroactive to the date that notification was provided to the operator in such cases where the operator has been nonresponsive in correcting the situation. [Ord. 4112, 1997.]

11.08.460 Insurance.

A. Minimum Limits. The operator shall, concurrently with the filing of an acceptance of this franchise, furnish to the city and file with the city clerk and at all times during the existence of this franchise, maintain in full force and effect, at its own cost and expense, the following insurance coverage which is at least as broad as Insurance Service Office (“ISO”) Form Number CG 00001 (commercial general liability), including “X,” “C,” “U” and ISO Form Number CA 00001 (commercial auto):

1. Worker's compensation and employer's liability insurance in amounts sufficient pursuant to the laws of the state of Washington;

2. Commercial general liability insurance or self-insurance with combined single limits not less than $2,000,000 for bodily injury, including personal injury or death, products liability, contractual coverage, operations, explosion, collapse, underground and property damage coverage; and

3. Automobile liability insurance with limits of liability not less than $1,000,000 each occurrence for bodily injury, including death and property damage.

B. Mandatory Insurance Provisions. The grantee shall provide the city with a certificate of insurance in accordance with the following provisions:

1. The city, its officers, and employees are to be named as additional insured;

2. Coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability;

3. Coverage shall not be suspended, canceled, modified or reduced except after 30 days' prior written notice to the city delivered by certified mail, return receipt requested; and

4. Coverage shall be primary as to the city, its officers, and employees. Any insurance or self-insurance by the city, its officers, officials, employees or volunteers shall be in excess of the operator's required insurance.

C. Verification of Coverage. The operator shall furnish the city with copies of certificates of insurance evidencing the coverages required by this section. The certificates shall be signed by a person authorized by the insurer to bind coverage on its behalf and must be received and approved by the city prior to the commencement of any work. In satisfying the foregoing insurance requirements, the operator may self-insure against risks in such amounts and upon such verification as is acceptable to the city. The operator's failure to maintain such insurance shall be grounds for the city's immediate termination of this franchise. [Ord. 4112, 1997.]

11.08.470 Performance bond.

Prior to the commencement of any work in the franchise area, the operator shall either furnish a performance/payment bond executed by the operator and a surety authorized to do business in the state of Washington or assign funds in favor of the city, which performance bond or assignment of funds shall be in a form acceptable to the city attorney and in an amount of $50,000, in order to guarantee the operator's performance of its obligations under this franchise, conditioned that the operator observe all of the covenants, terms and conditions and faithfully perform all of the operator's obligations under this franchise; shall correct or replace forthwith, on receipt of notice thereof, any defective work or materials used in the replacement of the city rights-of-way or other public property discovered within a two-year period from the date of the replacement and acceptance by the city; and shall restore the rights-of-way within the period of time specified by the city in the permit issued for such work. Notwithstanding the foregoing, however, during periods of construction, the operator shall adjust the performance bond or assignment of funds to an amount equal to 10 percent of the total cost of the work. [Ord. 4112, 1997.]

11.08.480 Recourse against bonds and other security.

Bonds and other security may be utilized by the city for the purposes of, but not limited to, reimbursement of the city by reason of the operator's failure to pay the city any sums due under the terms of the ordinance or this franchise, reimbursement of the city for reasonable costs borne by the city to correct franchise violations not corrected by the operator after due notice; and monetary remedies or damages assessed against the operator due to default or violations of the ordinance requirements or this franchise.

A. Recourse. In the event the operator has been declared to be in default by the city under ECC 11.08.390, Revocation for cause, and if the operator does not appeal the default declaration and fails, within 30 days of mailing of the city's finding, to pay the city any franchise fee, penalties, or monetary sanctions, or fails to perform the particular conditions of this franchise, the city may thereafter foreclose against the performance bond and/or withdraw from any other security an amount sufficient to compensate the city's damages, with interest at the legal rate. Upon such foreclosure or withdrawal, the city shall notify the operator in writing, by first class mail, postage prepaid, of the amount and date thereof.

B. Restoration. Within 30 days after mailing notice to the operator that the city has foreclosed the operator's performance bond or that any amount has been withdrawn by the city from the other security pursuant to subsection (A) of this section, the operator shall deposit such further bond or sum of money, or other security, as the city may require, sufficient to meet the requirements of this franchise.

C. Rights of the City. The rights reserved to the city with respect to any bond or security are in addition to all other rights of the city, whether reserved by this franchise or authorized by law, and no action, proceeding, or exercise of a right with respect to any bond or other security shall constitute an election or waiver of any rights or other remedies the city may have. [Ord. 4112, 1997.]

11.08.490 Relationship of remedies.

A. No Election of Remedies. Without limitation, the withdrawal of amounts from the performance bond, or the recovery of amounts under the insurance indemnity or liquidated damages provision of this franchise shall not be construed as the following: an election of remedies; a limitation on the liability of the operator under the franchise for damages or otherwise; or to excuse faithful performance by the operator. However, the city shall not impose more than one remedy for the same material breach of this franchise.

B. Cost Treatment of Fines, Liquidated Damages, or Damages. No cost to the operator arising from a breach or violation of the franchise shall be recovered from subscribers, shall form the basis of any adjustment to subscriber rates or other subscriber charges or shall be offset against any sums due the city as a tax, franchise fee or otherwise regardless of whether the combination of franchise fees and said costs exceeds five percent of the operator's gross revenues in any 12-month period. [Ord. 4112, 1997.]

11.08.500 Independent contractors.

This franchise shall not be construed to provide that the operator is the agent or legal representative of the city for any purpose whatsoever. The operator 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 whatsoever. [Ord. 4112, 1997.]

11.08.510 Inconsistency.

If any portion of this franchise should be inconsistent or conflict with any rule or regulation now or hereafter adopted by the FCC or other federal or state law and it is determined by the city attorney that such FCC rule or federal or state law preempts this franchise, then to the extent of the inconsistency or conflict, the rule or regulation of the FCC, federal or state law shall control for so long, but only for so long, as such rule, regulation, or law shall remain in effect; provided, the remaining provisions of this franchise shall not be affected thereby. [Ord. 4112, 1997.]

11.08.520 Acceptance.

This grant of franchise and its terms and provisions shall be accepted by the operator by the submission of a written instrument, executed and sworn to by a corporate officer of the operator before a notary public, and filed with the city within 30 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 provisions, terms and conditions. [Ord. 4112, 1997.]

11.08.530 General provisions.

A. Entire Agreement. This franchise contains all of the agreements of the parties with respect to any matter covered or mentioned in this franchise and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose.

B. Modification. No provision of this franchise may be amended or added to except by agreement in writing signed by both of the parties.

C. Full Force and Effect. Any provision of this franchise which is declared invalid, void or illegal shall in no way affect, impair, or invalidate any other provision hereof and such other provisions shall remain in full force and effect.

D. Assignment. Operator shall not have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the city. Any assignee shall, within 30 days of the date of any approved assignment, file written notice of the assignment with the city together with its written acceptance of all terms and conditions of this franchise.

E. Attorneys' Fees. In the event the city or the operator defaults on the performance of any terms in this franchise, and the operator or the city places the enforcement of the franchise or any part thereof, or the collection of any monies due, or to become due hereunder, in the hands of an attorney, or file suit upon the same, each party shall pay its own costs, including reasonable attorneys' fees, costs and expenses. The venue for any dispute related to this franchise shall be Kittitas County, Washington.

F. No Waiver. Failure of the city or the operator to declare any breach or default immediately upon the occurrence thereof, or delay in taking any action in connection with, shall not waive such breach or default. Failure of the city or operator to declare one breach or default does not act as a waiver of the city's or operator's right to declare another breach or default.

G. Governing Law. This franchise shall be made in and shall be governed by and interpreted in accordance with the laws of the state of Washington.

H. Authority. Each individual executing this franchise on behalf of the city and operator represents and warrants that such individuals are duly authorized to execute and deliver this franchise on behalf of the operator or the city.

I. Notices. Any notices required to be given by the city to the operator or by the operator to the city shall be delivered to the parties at the following addresses:

Operator:

Continental Cablevision

P.O. Box 674

1105 E. 10th Ave.

Ellensburg, WA 98926

City:

City Manager

City of Ellensburg

501 N. Anderson St.

Ellensburg, WA 98926

Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth herein. Any notice so posted in the United States mail shall be deemed received three days after the date of mailing.

J. Captions. The respective captions of the sections of this franchise are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect in any respect any of the provisions of this franchise.

K. Time of Essence. Time is of the essence of this franchise and each and all of its provisions in which performance is a factor.

L. Remedies Cumulative. Any remedies provided for under the terms of this franchise are not intended to be exclusive but shall be cumulative with all other remedies available to the city at law, in equity or by statute.

M. External Franchising Costs. The operator shall not pass on as external any costs associated with the upgrading of the system. Additionally, the operator shall not pass through nor itemize any franchise-related cost not specifically required by this agreement. All such pass-throughs must be allowable under federal law.

N. Force Majeure. In the event the operator's performance of any of the terms, conditions or obligations required by this franchise is prevented by a cause or event not within the operator's control, such inability to perform shall be deemed excused for such period as may be reasonably necessary to overcome the effects of such cause or event, and no defaults, penalties, or sanctions shall be imposed as a result thereof. For the purposes of this section, causes or events not within the control of operator shall include without limitation acts of God, strikes, labor strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires.

O. Nonexclusive.

1. This franchise and the right it grants to use and occupy the public rights-of-way shall not be exclusive and do not, explicitly or implicitly, preclude the issuance of other franchises to operate cable systems within the city; provided, however, that the city shall not authorize or permit another person to construct, operate or maintain a cable communications system, or otherwise to utilize the public rights-of-way for the delivery to subscribers of any cable service, on material terms and conditions which are more favorable or less burdensome than those applied to the operator.

2. In the event another person provides cable service on terms and conditions that, with respect to any of the specific matters identified above, are more favorable or less burdensome than the terms and conditions applicable to the operator under this agreement, the city shall adjust the terms and conditions in any other authorization or in this agreement so that the terms and conditions under which such other person operates are not more favorable or less burdensome, when taken as a whole, than those that are applicable to the operator. For purposes of this subsection, “person” shall be deemed to exclude a cable communications system owned and operated by the city for the benefit of the residents of the city of Ellensburg.

P. Construction of Franchise Agreement. The provisions of this franchise agreement constitute a valid and enforceable contract between the parties, and shall be construed in accordance with generally accepted rules of contract construction. [Ord. 4112, 1997.]

11.08.540 Severability.

If any provision of this franchise or its application to any person or circumstance is held invalid, the remainder of the franchise or the application of the provision to other persons or circumstances is not affected. [Ord. 4112, 1997.]

11.08.550 Ratification.

Any act consistent with the authority and prior to the effective date of the ordinance codified in this chapter is hereby ratified and affirmed. [Ord. 4112, 1997.]

Appendix “A”
Public Buildings
City Hall	WWTP	Maintenance and Grounds
420 North Pearl	2415 Canyon Road	1503 E. Capitol
Ellensburg	Ellensburg	Ellensburg

Public Safety Building	School Dist. Admin. Offices	Valley View Elementary
100 North Pearl	506 North Sprague Street	1508 East 3rd Ave.
Ellensburg	Ellensburg	Ellensburg

Hal Holmes Center	Alternative Education	Kittitas County Courthouse
201 North Ruby	Hogue Bldg., Rm 107	205 West 5th Ave.
Ellensburg	Ellensburg	Ellensburg

Public Works Shop	Community Schools	Kittitas County Sheriff
607 Industrial Way	506 North Sprague St.	Kittitas County Public Safety Bldg.
Ellensburg	Ellensburg	Ellensburg

Senior Center	Special Services	Kittitas County Annex Building
506 South Pine	506 North Sprague St.	507 Nanum
Ellensburg	Ellensburg	Ellensburg

Library	Ellensburg High School	Central Washington University
209 North Ruby	2300 East 3rd Ave.	400 East 8th Ave.
Ellensburg	Ellensburg	Ellensburg

Business Incubator	Lincoln School	Flight Tech. Building
1000 Prospect	200 S. Sampson St.	1101 Bowers Rd.
Ellensburg	Ellensburg	Ellensburg

City Hall Annex	Morgan Middle School	Kittitas County Shop
414 North Main	400 East 1st Ave.	14th and Okanogan
Ellensburg	Ellensburg	Ellensburg

City Hall Annex II	Mt. Stuart School
416 North Main	705 West 15th Ave.
Ellensburg	Ellensburg

Memorial Pool	School Dist. Food Services
815 East 6th Ave.	400 East 1st Ave.
Ellensburg	Ellensburg