HomeMy WebLinkAboutOrdinance No. 0998
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
CITY OF MEDINA, WASHINGTON
ORDINANCE NO. 998
AN ORDINANCE granting Comcast Cable Communications Management, LLC, the
right, privilege, authority and franchise to construct, operate, maintain, reconstruct, repair and
upgrade the Cable System upon, over, under, along, across and through the Franchise Area for
the purpose of providing Cable Services, subject to the terms and conditions set forth in this
Ordinance and applicable law.
WHEREAS, the City of Medina (City) has a legitimate and necessary regulatory role in ensuring
the availability of cable communications service, and reliability of cable systems in its
jurisdiction, the availability of local programming (including public, educational and
Governmental Access programming) and quality Customer service; and
WHEREAS, diversity in Cable Service programming is an important policy goal and Grantee’s
Cable System offers a wide range of programming services; and
WHEREAS, the City is authorized by applicable law to grant one or more nonexclusive
Franchises to construct, operate and maintain cable systems within the boundaries of the City;
and
WHEREAS, in consideration of the mutual promises made herein, and other good and valuable
consideration as provided herein, the receipt and adequacy of which are hereby acknowledged,
the City and Grantee do hereby agree as follows; NOW THEREFORE
THE CITY COUNCIL OF THE CITY OF MEDINA, WASHINGTON, DOES HEREBY ORDAIN
AS FOLLOWS:
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
Table of Contents
CABLE FRANCHISE
Between
CITY OF MEDINA, WASHINGTON
And
COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC
TABLE OF CONTENTS
SECTION 1. - DEFINITIONS .......................................................................................... 2
1.1 “Access” or “Access Programming” ...................................................................... 2
1.2 “Access Channel” ................................................................................................. 2
1.3 “Activation” or “Activated” ..................................................................................... 2
1.4 “Affiliated Entity” or “Affiliate” ................................................................................ 2
1.5 “Bad Debt” ............................................................................................................ 2
1.6 “Basic Service” ..................................................................................................... 2
1.7 “Broadcast Signal” ................................................................................................ 2
1.8 “Cable Act”............................................................................................................ 3
1.9 “Cable Operator” ................................................................................................... 3
1.10 “Cable Service” ..................................................................................................... 3
1.11 “Cable System” ..................................................................................................... 3
1.12 “Capital Contribution” ............................................................................................ 3
1.13 “Channel” .............................................................................................................. 4
1.14 “City” ..................................................................................................................... 4
1.15 “Customer Service Representative” or “CSR”....................................................... 4
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
Table of Contents
1.16 “Designated Access Provider” .............................................................................. 4
1.17 “Downstream Channel” ......................................................................................... 4
1.18 “Dwelling Unit” ...................................................................................................... 4
1.19 “FCC” .................................................................................................................... 4
1.20 “Fiber Optic”.......................................................................................................... 4
1.21 “Franchise” ........................................................................................................... 4
1.22 “Franchise Area” ................................................................................................... 4
1.23 “Franchise Fee” .................................................................................................... 4
1.24 “Grantee” .............................................................................................................. 5
1.25 “Gross Revenues” ................................................................................................ 5
1.26 “Headend” or “Hub” .............................................................................................. 7
1.27 “Leased Access Channel” .................................................................................... 8
1.28 "Locally Scheduled Original Programming" .......................................................... 8
1.29 “Pay Service” or “Premium Service” ..................................................................... 8
1.30 “Person” ................................................................................................................ 8
1.31 “Rights-of-Way” .................................................................................................... 8
1.32 “Service Interruption” ............................................................................................ 8
1.33 “State” ................................................................................................................... 9
1.34 “Subscriber” or “Customer” ................................................................................... 9
1.35 “Tier” ..................................................................................................................... 9
1.36 “Video Programming” ........................................................................................... 9
SECTION 2. - GRANT OF FRANCHISE ......................................................................... 9
2.1 Grant .................................................................................................................... 9
2.2 Use of Rights-of-Way ......................................................................................... 10
2.3 Term ................................................................................................................... 11
2.4 Franchise Nonexclusive ..................................................................................... 11
2.5 Grant of Other Franchises .................................................................................. 12
2.6 Familiarity with Franchise ................................................................................... 13
2.7 Effect of Acceptance ........................................................................................... 14
2.8 Police Powers ..................................................................................................... 14
2.9 Franchise Area ................................................................................................... 14
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
Table of Contents
2.10 Reservation of Rights ......................................................................................... 14
SECTION 3. - FRANCHISE FEE AND FINANCIAL CONTROLS ................................ 15
3.1 Franchise Fee ..................................................................................................... 15
3.2 Payments ........................................................................................................... 15
3.3 Acceptance of Payment ...................................................................................... 15
3.4 Franchise Fee Reports ....................................................................................... 15
3.5 Audits ................................................................................................................. 15
3.6 Financial Records ............................................................................................... 16
3.7 Underpayments .................................................................................................. 16
3.8 Maximum Franchise Fee .................................................................................... 16
3.9 Payment on Termination .................................................................................... 16
3.10 Service Packages ............................................................................................... 17
3.11 Alternative Compensation .................................................................................. 17
3.12 Tax Liability......................................................................................................... 17
SECTION 4. - ADMINISTRATION AND REGULATION ............................................... 17
4.1 Rates and Charges ............................................................................................. 17
4.2 No Rate Discrimination ....................................................................................... 18
4.3 Filing of Rates and Charges ............................................................................... 18
4.4 Time Limits Strictly Construed ............................................................................ 18
4.5 Performance Evaluation ..................................................................................... 18
4.6 Leased Access Channel Rates........................................................................... 19
4.7 Late Fees ........................................................................................................... 19
SECTION 5. - FINANCIAL AND INSURANCE REQUIREMENTS ............................... 19
5.1 Indemnification ................................................................................................... 19
5.2 Insurance Requirements .................................................................................... 22
5.3 Security .............................................................................................................. 25
5.4 Bonds ................................................................................................................. 26
SECTION 6. - CUSTOMER SERVICE .......................................................................... 26
6.1 Customer Service Standards .............................................................................. 27
6.2 Subscriber Privacy .............................................................................................. 27
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
Table of Contents
6.3 Customer Service Agreement and Manual ......................................................... 27
SECTION 7. - REPORTS AND RECORDS .................................................................. 27
7.1 Open Records .................................................................................................... 27
7.2 Confidentiality ..................................................................................................... 28
7.3 Annual Reports ................................................................................................... 29
SECTION 8. - PROGRAMMING ................................................................................... 30
8.1 Broad Programming Categories ......................................................................... 30
8.2 Deletion of Broad Programming Categories ....................................................... 30
8.3 Obscenity ........................................................................................................... 30
8.4 Services for the Disabled .................................................................................... 30
8.5 Parental Control Device ...................................................................................... 30
8.6 Complimentary Cable Service ............................................................................ 31
8.7 New Technology ................................................................................................. 31
SECTION 9. - PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS .............. 31
9.1 Access Channels ................................................................................................ 31
9.2 Simulcast High Definition (HD) Access Channel ................................................ 32
9.3 Management and Control of Access Channels................................................... 33
9.4 Location and Quality of Access Channels .......................................................... 33
9.5 Access Channel Identification/Location/Relocation/Bill Insertions ...................... 34
9.6 Support for Access Capital Costs ....................................................................... 34
9.7 Technical Quality ................................................................................................ 35
9.8 Return Connectivity ............................................................................................ 36
9.9 Guide Selection .................................................................................................. 36
SECTION 10. - GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION ................. 37
10.1 Construction ....................................................................................................... 37
10.2 Location of Facilities ........................................................................................... 38
10.3 Restoration of Rights-of-Way.............................................................................. 38
10.4 Maintenance and Workmanship ......................................................................... 39
10.5 Acquisition of Facilities ....................................................................................... 39
10.6 Relocation of Facilities ........................................................................................ 39
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
Table of Contents
10.7 Movement of Cable System Facilities for Other Entities ..................................... 41
10.8 Reservation of City Use of Right-of-Way ............................................................ 41
10.9 Rights-of-Way Vacation ...................................................................................... 41
10.10 Removal of Discontinued Facilities ..................................................................... 42
10.11 Hazardous Substances ...................................................................................... 42
10.12 Undergrounding of Cable ................................................................................... 42
10.13 Codes ................................................................................................................. 44
10.14 Tree Trimming .................................................................................................... 44
10.15 Standards ........................................................................................................... 44
10.16 Stop Work ........................................................................................................... 45
10.17 Work of Contractors and Subcontractors ............................................................ 45
10.18 Pole Transfers .................................................................................................... 46
10.19 Strand Mounted WiFi Facilities ........................................................................... 46
SECTION 11. - CABLE SYSTEM DESIGN .................................................................. 47
11.1 Cable System Specifications .............................................................................. 47
11.2 Closed Captioning .............................................................................................. 47
11.3 No Income Discrimination ................................................................................... 47
11.4 Enforceability of Design and Performance Requirements .................................. 47
11.5 System Review ................................................................................................... 47
SECTION 12. - TECHNICAL STANDARDS ................................................................. 48
12.1 Technical Performance ....................................................................................... 48
12.2 Cable System Performance Testing ................................................................... 48
SECTION 13. - SERVICE EXTENSION ........................................................................ 48
13.1 Service Availability .............................................................................................. 48
SECTION 14. - STANDBY POWER AND EAS ............................................................ 50
14.1 Standby Power ................................................................................................... 50
14.2 Emergency Alert Capability ................................................................................ 50
SECTION 15. - FRANCHISE BREACHES; TERMINATION OF FRANCHISE ............ 50
15.1 Procedure for Remedying Franchise Violations.................................................. 50
15.2 Alternative Remedies ......................................................................................... 52
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
Table of Contents
15.3 Assessment of Liquidated Damages and Letter of Credit ................................... 52
15.4 Revocation.......................................................................................................... 54
15.5 Abandonment; Purchase of the Cable System ................................................... 55
15.6 Removal ............................................................................................................. 55
SECTION 16. - FRANCHISE TRANSFER .................................................................... 56
16.1 Transfer of Ownership or Control ....................................................................... 56
SECTION 17. - PROHIBITED PRACTICES, LOCAL EMPLOYMENT EFFORTS
AND NOTICES ................................................................................................... 58
17.1 Preferential or Discriminatory Practices Prohibited ............................................. 58
17.2 Notices ............................................................................................................... 58
SECTION 18. - MISCELLANEOUS PROVISIONS ....................................................... 59
18.1 Cumulative Rights .............................................................................................. 59
18.2 Costs to be Borne by Grantee ............................................................................ 59
18.3 Binding Effect ..................................................................................................... 59
18.4 Authority to Amend ............................................................................................. 59
18.5 Venue ................................................................................................................. 59
18.6 Governing Laws .................................................................................................. 59
18.7 Captions ............................................................................................................. 60
18.8 No Joint Venture ................................................................................................. 60
18.9 Waiver ................................................................................................................ 60
18.10 Severability ......................................................................................................... 60
18.11 Compliance with Federal, State and Local Laws ................................................ 60
18.12 Force Majeure .................................................................................................... 60
18.13 Entire Agreement ................................................................................................ 60
18.14 Attorneys’ Fees ................................................................................................... 61
18.15 Action of the City or Grantee .............................................................................. 61
18.16 Acceptance ......................................................................................................... 61
18.17 No Third-Party Beneficiaries ............................................................................... 61
18.18 Termination of Prior Franchise ........................................................................... 61
SECTION 19. - EFFECTIVE DATE ............................................................................... 61
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
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INTRODUCTORY STATEMENT
CABLE TELEVISION FRANCHISE. This Cable Television Franchise is entered into in
Medina, Washington, this ______ day of ______________, 2021, by and between the
City of Medina, Washington a municipal corporation, hereinafter (the “the City”) and
Comcast Cable Communications Management, LLC who is hereinafter known as
(“Grantee”). The City and Grantee are sometimes referred to hereinafter collectively as
the “parties.”
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
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SECTION 1. - DEFINITIONS
For the purposes of this Franchise and the Exhibits attached hereto the following
terms, phrases, words and their derivations shall have the meanings given herein when
indicated with the text of the Franchise by being capitalized. When not inconsistent with
the context, words used in the present tense include the future, words in the plural
include the singular, and words in the singular include the plural. Words not defined, or
those defined, but not capitalized within the text shall be given their common and
ordinary meaning. The word “shall” is always mandatory and not merely directory.
1.1 “Access” or “Access Programming”
includes Governmental or educational Access, collectively, and means the
availability for Noncommercial use by various governmental and educational
agencies, institutions and organizations, in the community, including the City and
its designees, of particular channels on the Cable System to receive and
distribute Video Programming to Subscribers, as permitted under applicable law.
“Governmental Access” means Access where governmental institutions or their
designees are the primary users having editorial control over programming and
services.
1.2 “Access Channel”
means any Channel or portion thereof, designated for Noncommercial Access
purposes or otherwise made available to facilitate Access programming.
1.3 “Activation” or “Activated”
means the status of any capacity on or part of the Cable System wherein the use
of that capacity or part thereof may be made available without further installation
of Cable System equipment other than Subscriber premise equipment, whether
hardware or software.
1.4 “Affiliated Entity” or “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 of Grantee.
1.5 “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.
1.6 “Basic Service”
means any Cable Service Tier that includes, at a minimum, the retransmission of
local television Broadcast Signals.
1.7 “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, microwave,
satellite dishes or any other means.
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
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1.8 “Cable Act”
means the Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992, and as amended
by the Telecommunications Act of 1996, and any amendments thereto.
1.9 “Cable Operator”
means any Person or group of Persons, including Grantee, who provides Cable
Service over the Cable System and directly or through one or more Affiliates
owns a significant interest in such Cable System or who otherwise control(s) or is
(are) responsible for, through any arrangement, the management and operation
of the Cable System.
1.10 “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.
1.11 “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 of the Cable
Act; or
(5) any facilities of any electric utility used solely for operating its
electric utility systems. When used herein, the term “Cable
System” shall mean Grantee’s Cable System in the Franchise
Area unless the context indicates otherwise.
1.12 “Capital Contribution”
means a fee required by this franchise for Access facilities pursuant to 47 U.S.C
542(g)(2)(C).”
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
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1.13 “Channel”
means a portion of the frequency band capable of carrying a Video Programming
Service or combination of Video Programming Services, whether by analog or
digital signal, on a twenty-four (24) hour per day basis or a portion thereof.
1.14 “City”
means the City of Medina, Washington, a municipal corporation, of the State of
Washington.
1.15 “Customer Service Representative” or “CSR”
shall mean any person employed by Grantee to assist, or provide service to,
Customers, whether by answering public telephone lines, writing service or
installation orders, answering Customers’ questions, receiving and processing
payments, or performing other Customer service-related tasks.
1.16 “Designated Access Provider”
means the entity or entities designated by the City to manage or co-manage
Access Channels and facilities. The City may be a Designated Access Provider.
1.17 “Downstream Channel”
means a Channel capable of carrying a transmission from the Headend to
remote points on the Cable System.
1.18 “Dwelling Unit”
means any building or portion thereof that has independent living facilities,
including provisions for cooking, sanitation and sleeping, and that is designed for
residential occupancy.
1.19 “FCC”
means the Federal Communications Commission or its lawful successor.
1.20 “Fiber Optic”
means a transmission medium of optical fiber cable, along with all associated
electronics and equipment capable of carrying electric lightwave pulses.
1.21 “Franchise”
means the document, in which this definition appears, that is executed between
the City and Grantee, containing the specific provisions of the authorization
granted and the contractual and regulatory agreement created hereby.
1.22 “Franchise Area”
means the area within the jurisdictional boundaries of the City, including any
areas annexed by the City during the term of this Franchise.
1.23 “Franchise Fee”
includes any tax, fee or assessment of any kind imposed by the City on Grantee
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
Page 5 of 63
or Subscribers, or both solely because of their status as such. The term
Franchise Fee does not include:
(1) Any tax, fee or assessment of general applicability (including any
such tax, fee, or assessment on both utilities and Cable Operators
or their services, but not including a tax, fee, or assessment that
is unduly discriminatory against Cable Operators or cable
Subscribers);
(2) Capital costs that are required by the Franchise to be incurred by
Grantee for Educational or Governmental Access facilities,
including the support required in Section 9.6;
(3) Requirements or charges incidental to the awarding or enforcing
of the Franchise, including but not limited to, payments for bonds,
security funds, letters of credit, insurance, indemnification,
penalties or liquidated damages; or
(4) Any fee imposed under Title l7, United States Code.
1.24 “Grantee”
means Comcast Cable Communications Management, LLC or its lawful
successor, transferee or assignee.
1.25 “Gross Revenues”
1.25.1 “Gross Revenues” means, and shall be construed broadly to include all
revenues derived directly or indirectly by Grantee and/or an Affiliated
Entity that is the cable operator of the Cable System, from the operation
of Grantee’s Cable System to provide Cable Services within the City.
Gross Revenues include, by way of illustration and not limitation:
(1) monthly fees for Cable Services, regardless of whether such
Cable Services are provided to residential or commercial
customers, including revenues derived from the provision of all
Cable Services (including but not limited to pay or premium Cable
Services, digital Cable Services, pay-per-view, pay-per-event,
and video-on-demand Cable Services);
(2) installation, reconnection, downgrade, upgrade, or similar charges
associated with changes in subscriber Cable Service levels;
(3) fees paid to Grantee for channels designated for
commercial/leased access use and shall be allocated on a pro
rata basis using total Cable Service subscribers within the City;
(4) converter, remote control, and other Cable Service equipment
rentals, leases, or sales;
(5) Advertising Revenues as defined herein;
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
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(6) late fees, convenience fees, and administrative fees, which shall
be allocated on a pro rata basis using Cable Services revenue as
a percentage of total subscriber revenues within the City;
(7) revenues from program guides;
(8) Franchise Fees;
(9) FCC Regulatory Fees;
(10) commissions from home shopping channels and other Cable
Service revenue sharing arrangements which shall be allocated
on a pro rata basis using total Cable Service subscribers within
the City; and
(11) any Cable Service revenues that may develop in the future,
whether or not anticipated, and consistent with GAAP.
1.25.2 “Advertising Revenues” shall mean revenues derived from sales of
advertising that are made available to Grantee’s Cable System
Subscribers within the City and shall be allocated on a pro rata basis
using Grantee’s Cable System Subscribers within the Franchise Area in
relation to the total number of Grantee’s Cable Service subscribers
covered under the advertising arrangement. Additionally, Grantee
agrees that Gross Revenues subject to franchise fees shall include all
commissions, representative fees, Affiliated Entity fees, or rebates paid
to National Cable Communications (“NCC”) and Comcast Effectv
(“Effectv”) or their successors associated with sales of advertising on the
Cable System within the City allocated according to this paragraph
using total Cable Service Subscribers reached by the advertising.
1.25.3 “Gross Revenues” shall not include:
(1) actual bad debt write-offs, except any portion which is
subsequently collected which shall be allocated on a pro rata
basis using Cable Services revenue as a percentage of total
subscriber revenues within the City;
(2) any taxes and/or fees on services furnished by Grantee imposed
by an municipality, state, or other governmental unit, provided that
Franchise Fees and the FCC regulatory fee shall not be regarded
as such a tax or fee;
(3) fees imposed by any municipality, state, or other governmental
unit on Grantee, including but not limited to Public, Educational
and Governmental (PEG) Fees;
(4) launch fees and marketing co-op fees; and
(5) unaffiliated third-party advertising sales agency fees which are
reflected as a deduction from revenues.
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2021 Cable Franchise Agreement
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1.25.4 To the extent revenues are received by Grantee for the provision of a
discounted bundle of services which includes Cable Services and non-
Cable Services, Grantee shall calculate revenues to be included in
Gross Revenues using a methodology that allocates revenue on a pro
rata basis when comparing the bundled service price and its
components to the sum of the published rate card, except as required
by specific federal, state, or local law. It is expressly understood that
equipment may be subject to inclusion in the bundled price at full rate
card value. This calculation shall be applied to every bundled service
package containing Cable Service from which Grantee derives revenues
in the City. To the extent discounts reduce revenues includable for
purposes of calculating Franchise Fees, Grantee may not unfairly or
unlawfully allocate discounts for bundled services for the purpose of
evading payment of Franchise Fees to the City. The City reserves its
right to review and to challenge Grantee’s calculations.
1.25.5 Grantee reserves the right to change the allocation methodologies set
forth in this definition of Gross Revenues in order to meet the standards
required by governing accounting principles as promulgated and defined
by the Financial Accounting Standards Board (“FASB”), Emerging
Issues Task Force (“EITF”) and/or the U.S. Securities and Exchange
Commission (“SEC”). Grantee will explain and document the required
changes to the City within sixty (60) days of making such changes, and
as part of any audit or review of Franchise Fee payments, and any such
changes shall be subject to 1.25.6 below.
1.25.6 Resolution of any disputes over the classification of revenue should first
be attempted by agreement of the Parties, but should no resolution be
reached, the Parties agree that reference shall be made to generally
accepted accounting principles (“GAAP”) as promulgated and defined
by the FASB, EITF and/or the SEC. Notwithstanding the forgoing, the
City reserves its right to challenge Grantee’s calculation of Gross
Revenues, including the application of GAAP to Franchise Fees and the
interpretation of GAAP as promulgated and defined by the FASB, EITF
and/or the SEC.
1.25.7 For the purposes of determining Gross Revenue Grantee shall use the
same method of determining revenues under GAAP as that which
Grantee uses in determining revenues for the purpose of reporting to
national and state regulatory agencies.
1.26 “Headend” or “Hub”
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, and all other
related equipment and Facilities.
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2021 Cable Franchise Agreement
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1.27 “Leased Access Channel”
means any Channel or portion of a Channel commercially available for
programming in accordance with Section 612 of the Cable Act.
1.28 "Locally Scheduled Original Programming"
means Government Access or educational Access programming that is created
by the City or their designated access provider(s) including edited coverage of
live programming. Such Locally Scheduled Original Programming shall not be
considered as qualifying as such after three (3) cablecasts (initial, first repeat,
second repeat and third repeat). Automated Video Programming filler, such as
cablecasts of highways and roads, or video bulletin boards does not constitute
Locally Scheduled Original Programming that qualifies herein.
1.29 “Pay Service” or “Premium Service”
means Video Programming or other programming service choices (such as
movie Channels or pay-per-view programs) offered to Subscribers on a package
tier, per-Channel, per-program or per-event basis.
1.30 “Person”
means any natural person, sole proprietorship, partnership, joint venture,
association, or limited liability entity or corporation, or any other form of entity or
organization.
1.31 “Rights-of-Way”
means land acquired or dedicated for public roads and streets including
easements dedicated for compatible use and consistent with Section 621 of the
Cable Act, but does not include:
(1) State highways;
(2) Land dedicated for roads, streets, and highways not opened and
not improved for motor vehicle use by the public, unless
specifically used as a utility corridor;
(3) Structures, including poles and conduits, located within the right-
of-way;
(4) Federally granted trust lands or forest board trust lands;
(5) Lands owned or managed by the state parks and recreation
commission; or
(6) Federally granted railroad rights-of-way acquired under 43 U.S.C.
Sec. 912 and related provisions of federal law that are not open
for motor vehicle use.
1.32 “Service Interruption”
means the loss of picture or sound on one or more cable Channels.
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
Page 9 of 63
1.33 “State”
means the State of Washington.
1.34 “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.
1.35 “Tier”
means a category of Cable Services provided by Grantee for which a separate
rate is charged.
1.36 “Video Programming”
means programming provided by, or generally considered comparable to
programming provided by, a television broadcast station, or cable programming
provider.
SECTION 2. - GRANT OF FRANCHISE
2.1 Grant
2.1.1 The City hereby grants to Grantee a nonexclusive authorization to make
reasonable and lawful use of the Rights-of-Way within the Franchise
Area to construct, operate, maintain, reconstruct, repair and upgrade the
Cable System for the purpose of providing Cable Services, subject to
the terms and conditions set forth in this Franchise and applicable law.
This Franchise shall constitute both a right and an obligation to fulfill the
obligations set forth in the provisions of this Franchise.
2.1.2 Grantee, through this Franchise, is granted the right to operate its Cable
System using the public Rights-of-Way within the Franchise Area in
compliance with all lawfully enacted applicable construction codes and
regulations. This Franchise is intended to convey limited rights and
interests only as to those streets in which the City has an actual interest.
It is not a warranty of title or interest in any Right-of-Way; it does not
provide Grantee any interest in any particular location within the Right-
of-Way; and it does not confer rights other than as expressly provided in
the grant hereof. This Franchise does not deprive the City of any
powers, rights or privileges it now has, or may later acquire in the future,
to use, perform work on or to regulate the use of and to control the City’s
streets covered by this Franchise, including without limitation the right to
perform work on its roadways, Right-of-Way or appurtenant drainage
facilities, including constructing, altering, paving, widening, grading, or
excavating thereof.
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2.1.3 This Franchise is subject to and shall be governed by all applicable
provisions now existing or hereafter amended of federal, State and local
laws and regulations, including but not limited to the Medina Municipal
Code and general engineering design and development standards.
This Franchise is subject to the general lawful police power of the
City affecting matters of municipal concern. Nothing in this Franchise
shall be deemed to waive the requirements of the other codes and
ordinances of general applicability enacted, or hereafter enacted, by
the City, including but not limited to MMC Chapter 5.08. Grantee
agrees to comply with the provisions of the City ordinances provided
that in the event of a conflict between the provisions of ordinances and
the Franchise, the express provisions of the Franchise shall govern.
2.1.4 Grantee agrees, as a condition of exercising the privileges granted by
this Franchise, that any Affiliate of Grantee that is a Cable Operator of
the Cable System in the Franchise Area, as defined herein, or directly
involved in the management or operation of the Cable System in the
Franchise Area, will comply with the terms and conditions of this
Franchise.
2.1.5 No rights shall pass to Grantee by implication. Without limiting the
foregoing, by way of example and not limitation, this Franchise shall not
include or be a substitute for:
(1) Any other permit or authorization required for the privilege of
transacting and carrying on a business within the City that may be
required by the ordinances and laws of the City.
(2) Any permit, agreement or authorization required by the City for
Rights-of-Way users in connection with operations on or in Rights-
of-Way or public property; or
(3) Any permits or agreements for occupying any other property of
the City or private entities to which access is not specifically
granted by this Franchise.
2.1.6 This Franchise authorizes Grantee to engage in providing Cable
Service, as that term is defined in 47 U.S.C. Sec. 522(6), as amended.
Neither the City nor the Grantee waive any rights they may have under
applicable law as to the lawful use of the Cable System for other
services and the regulatory obligations related to such services.
2.2 Use of Rights-of-Way
2.2.1 Grantee may erect, install, construct, repair, replace, reconstruct, and
retain in, on, over, under, upon, across, through, below and along the
Rights-of-Way within the Franchise Area, such wires, cables (both
coaxial and Fiber Optic), conductors, ducts, conduit, vaults, manholes,
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amplifiers, appliances, pedestals, attachments and other property and
equipment as are necessary and appurtenant to the operation of a
Cable System for the provision of Cable Service within the Franchise
Area. Grantee shall comply with all applicable construction codes, laws,
ordinances, regulations and procedures regarding placement and
installation of Cable System facilities in the Rights-of Way.
2.2.2 Grantee must follow the City-established requirements, as well as all the
City codes, ordinances and other regulations regarding placement of
Cable System facilities in Rights-of-Way, including the specific location
of facilities in the Rights-of-Way. Grantee must in any event install
Cable System facilities in a manner that minimizes interference with the
use of the Rights-of-Way by others, including others that may be
installing communications facilities. To protect public health, safety and
welfare, the City may require that Cable System facilities be installed at
a particular time, at a specific place or in a particular manner as a
condition of access to a particular Rights-of-Way; may deny access if
Grantee is not willing to comply with the City’s requirements; and may
remove, or require removal of, any facility that is not installed in
compliance with the requirements established by the City, or that is
installed without prior City approval of the time, place or manner of
installation (including charging Grantee for all the costs associated with
removal); and the City may require Grantee to cooperate with others to
minimize adverse impacts on the Rights-of-Way through joint trenching
and other arrangements. Grantee shall assume its costs (in accordance
with applicable law) associated with any requirement of the City in the
exercise of its police powers, to relocate its Cable System facilities
located in the Rights-of-Way.
2.3 Term
2.3.1 This Franchise and the rights, privileges, and authority granted
hereunder and the contractual relationship established hereby shall
remain in full force and effect for a period of ten (10) years from and
after the effective date of this Ordinance, as specified in SECTION 19. -
, subject to acceptance of this Franchise by Grantee pursuant to 18.16.
2.3.2 The grant of this Franchise shall have no effect on any ordinance in
effect prior to the effective date of this Franchise to indemnify or insure
the City against acts and omissions occurring during the period that the
prior franchise was in effect, nor shall it have any effect upon liability to
pay all Franchise Fees (for any prior years) that were due and owed
under a prior franchise and the franchise ordinance.
2.4 Franchise Nonexclusive
This Franchise shall be nonexclusive, and subject to all prior rights, interests,
easements, or franchises granted by the City or its predecessors to any Person
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to use any property, Right-of-Way, easement, including the right of the City to
use same for any purpose it lawfully deems fit, including the same or similar
purposes allowed Grantee hereunder. The City may at any time grant
authorization to use the Rights-of-Way for any purpose not incompatible with
Grantee’s authority under this Franchise and for such additional franchises for
Cable Systems, as the City deems appropriate.
2.5 Grant of Other Franchises
2.5.1 Grantee acknowledges and agrees that the City reserves the right to
grant one or more additional franchises subsequent to this Franchise to
provide Cable Service or wireline video programming service within the
Franchise Area; provided, the City agrees that it shall amend this
Franchise to include any material terms or conditions that it makes
available to the new entrant within ninety (90) days of Grantee’s
request, so as to ensure that the regulatory and financial burdens on
each entity are materially equivalent. “Material terms and conditions”
include but are not limited to: Franchise Fees; insurance; system build-
out requirements; security instruments; Access Channels and support;
customer service standards; required reports and related record
keeping; and notice and opportunity to cure breaches. The parties
agree that this provision shall not require a word-for-word identical
franchise or authorization so long as the regulatory and financial
burdens on each entity are materially equivalent. Video Programming
services delivered over wireless broadband networks are specifically
exempted from the requirements of this Section so long as the City does
not have lawful authority to regulate such wireless broadband networks
within the Franchise Area.
2.5.2 The modification process of this Franchise as provided in the preceding
paragraph shall only be initiated by written notice by Grantee to the City
regarding specified franchise obligations. Grantee’s notice shall
address the following:
(1) identifying the specific terms or conditions in the competitive cable
services franchise which are materially different from Grantee’s
obligations under this Franchise;
(2) identifying the Franchise terms and conditions for which Grantee
is seeking amendments;
(3) providing text for any proposed Franchise amendments to the
City, and
(4) a written explanation of why the proposed amendments are
necessary.
2.5.3 Upon receipt of Grantee’s written notice as provided in Section 2.5.2,
the City and Grantee agree that they will use best efforts in good faith to
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negotiate Grantee’s proposed Franchise modifications, and that such
negotiation will proceed and conclude within a ninety (90) day time
period, unless that time period is reduced or extended by mutual
agreement of the parties. If the City and Grantee reach agreement on
the Franchise modifications pursuant to such negotiations, then the
parties shall amend this Franchise to include the modifications.
Notwithstanding any modification of this Franchise pursuant to the
provisions of this Section 2.5, should any entity, whose authorization to
provide Cable Services or similar wireline video programming service
resulted in a triggering of the amendments under this Section, fail or
cease to provide such services within the City, the City may provide
ninety (90) days’ written notice to Grantee of such fact, and the City and
Grantee shall enter into good faith negotiations to determine the original
terms, conditions and obligations of this Franchise shall be reinstated
and fully effective.
2.5.4 In the event an application for a new cable television franchise is filed
with the City proposing to serve the Franchise Area, in whole or in part,
the City shall provide notice of such application to the Grantee.
2.5.5 In the event that a wireline multichannel video programming distributor,
legally authorized by state or federal law, makes available for purchase
by Subscribers or customers, Cable Services or wireline video services
within the City without a Cable Service franchise or other similar lawful
authorization granted by the City, then Grantee shall have a right to
request Franchise amendments that relieve the Grantee of regulatory
burdens that create a competitive disadvantage to Grantee. In
requesting amendments, Grantee shall file a petition seeking to amend
this Franchise. Such petition shall:
(1) indicate the presence of such wireline competitor;
(2) identify the Franchise terms and conditions for which Grantee is
seeking amendments;
(3) provide the text of all proposed Franchise amendments to the City,
(4) identify all material terms or conditions in the applicable state or
federal authorization which are substantially more favorable or
less burdensome to the competitive entity.
(5) The City shall not unreasonably withhold consent to Grantee’s
petition.
2.6 Familiarity with Franchise
Grantee acknowledges and warrants by acceptance of the rights, privileges and
agreement granted herein, that it has carefully read and fully comprehends the
terms and conditions of this Franchise and is willing to and does accept all
reasonable risks of the meaning of the provisions, terms and conditions herein.
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Grantee further acknowledges and states that it has fully studied and considered
the requirements and provisions of this Franchise, and finds that the same are
commercially practicable at this time and consistent with all local, State and
federal laws and regulations currently in effect, including the Cable Act.
2.7 Effect of Acceptance
By accepting the Franchise, Grantee:
(1) acknowledges and accepts the City’s legal right to issue and
enforce the Franchise;
(2) agrees that it will not oppose the City’s intervening to the extent it
is legally entitled to do so in any legal or regulatory proceeding
affecting the Cable System;
(3) accepts and agrees to comply with each and every provision of
this Franchise subject to applicable law; and
(4) agrees that the Franchise was granted pursuant to processes and
procedures consistent with applicable law, and that it will not raise
any claim to the contrary.
2.8 Police Powers
Grantee’s rights hereunder are subject to the police powers of the City to adopt
and enforce ordinances necessary to protect the safety, health and welfare of the
public, and Grantee agrees to comply with all applicable laws, ordinances and
regulations lawfully enacted pursuant to the police powers of the City, or
hereafter enacted in accordance therewith, by the City or any other legally
constituted governmental unit having lawful jurisdiction over the subject matter
hereof. The City reserves the right to exercise its police powers, notwithstanding
anything in this Franchise to the contrary.
2.9 Franchise Area
Grantee shall provide Cable Services, as authorized under this Franchise, within
the Franchise Area in accordance with line extension and density provisions as
provided herein.
2.10 Reservation of Rights
Nothing in this Franchise shall
(1) abrogate the right of the City to perform any public works or public
improvements of any description,
(2) be construed as a waiver of any codes or ordinances of general
applicability promulgated by the City, or
(3) be construed as a waiver or release of the rights of the City in and
to the Rights-of-Way.
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SECTION 3. - FRANCHISE FEE AND FINANCIAL CONTROLS
3.1 Franchise Fee
As compensation for the use of the City’s Rights-of-Way, Grantee shall pay as a
Franchise Fee to the City, throughout the duration of this Franchise, an amount
equal to four percent (4%) of Grantee’s Gross Revenues or such greater or
lesser percentage subject to subsection 3.8 below. Grantee shall, upon written
request of the City, pay a franchise fee to the City in an amount not to exceed
five percent (5%) of Grantee’s Gross Revenues. Accrual of such franchise fees
shall commence within thirty (30) days from the City’s written notification to
Grantee.
3.2 Payments
Grantee's Franchise Fee payments to the City shall be computed quarterly for
the preceding quarter. Each quarterly payment shall be due and payable no later
than forty-five (45) days after the end of the preceding quarter. The quarters
shall end respectively on the last day of March, June, September and December.
3.3 Acceptance of Payment
No acceptance of any payment shall be construed as an accord by the City that
the amount paid is, in fact, the correct amount, nor shall any acceptance of
payments be construed as a release of any claim the City may have for further or
additional sums payable or for the performance of any other obligation of
Grantee.
3.4 Franchise Fee Reports
3.4.1 Each payment shall be accompanied by a written report to the City on a
form commonly used by Grantee, verified by an officer of Grantee,
containing an accurate statement in summarized form, of Grantee’s
Gross Revenues and the computation of the payment amount. Such
reports shall include all Gross Revenues of the Cable System.
3.5 Audits
No more than on an annual basis, upon thirty (30) days’ prior written notice, the
City shall have the right to conduct an independent audit of Grantee’s financial
records necessary to enforce compliance with this Franchise and to calculate any
amounts determined to be payable under this Franchise. Provided Grantee
cooperates in making all relevant records available upon request, the City will in
good faith attempt to complete each audit within six (6) months, and the audit
period shall not be any greater than the previous six (6) years. Any additional
amounts due to the City as a result of the audit shall be paid within sixty (60)
days following written notice to Grantee, and Grantee’s agreement that the audit
findings are correct, which notice shall include a copy of the audit findings. If a
Franchise Fee underpayment is discovered as the result of an audit, Grantee
shall pay, in addition to the amount due, interest at the maximum allowed rate as
provided under State law calculated from the date the underpayment was
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originally due until the date the City receives the payment. If the audit shows
that Franchise Fees have been underpaid, by five percent (5%) or more in a
calendar year, Grantee shall pay the cost of the audit in an amount up to $12,500
for the first year of the audit and $5,000 for the next two years of the audit period.
3.6 Financial Records
Grantee agrees to meet with a representative of the City upon request to review
Grantee’s methodology of record-keeping, financial reporting, the computing of
Franchise Fee obligations and other procedures, the understanding of which the
City deems necessary for reviewing reports and records that are relevant to the
enforcement of this Franchise.
3.7 Underpayments
In the event any payment is not received within forty-five (45) days from the end
of the scheduled payment period, Grantee shall pay, in addition to the amount
due, interest at the maximum allowed rate as provided under State law
calculated from the date the underpayment was originally due until the date the
City receives the payment. The period of limitation for recovery of franchise fees
payable hereunder shall be six (6) years from the date on which payment by the
Grantee was due.
3.8 Maximum Franchise Fee
The parties acknowledge that, at present, applicable federal law limits the City to
collection of a Franchise Fee of five percent (5%) of Gross Revenues in any
twelve (12) month period. In the event that at any time throughout the term of
this Franchise, the City is authorized to collect an amount in excess of five
percent (5%) of Gross Revenues in any twelve (12) month period, the parties
hereby agree to amend the Franchise after written notice to Grantee, and a
public meeting to discuss same, provided that all wireline cable systems in the
Franchise Area over which the City has jurisdiction are treated in an equivalent
manner. In the event that at any time throughout the term of this Franchise, the
City is limited by federal law to collecting an amount which is less than five
percent (5%) of Gross Revenues in any twelve (12) month period, Grantee may
request reduction of the Franchise Fee payments to the City in accordance with
federal law and the parties hereby agree to amend the Franchise unless the City
would be covered under grandfathered provisions under federal law to keep the
Franchise Fee at five percent (5%) of Gross Revenues.
3.9 Payment on Termination
If this Franchise terminates for any reason, Grantee shall file with the City within
ninety (90) calendar days of the date of the termination, a financial statement,
certified by an independent certified public accountant, showing the Gross
Revenues received by Grantee since the end of the previous fiscal year. Within
forty five (45) days of the filing of the certified statement with the City, Grantee
shall pay any unpaid amounts as indicated. If Grantee fails to satisfy its
remaining financial obligations as required in this Franchise, the City may do so
by utilizing the funds available in a letter of credit or other security provided by
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Grantee pursuant to Section 5.3 or may exercise any other remedies provided to
the City in law or equity to collect on such financial obligations.
3.10 Service Packages
In addition to the requirements elsewhere in this Franchise, City acknowledges
that, during the term of this Franchise, Grantee may offer to its Subscribers, at a
discounted rate, a bundled or combined package of services consisting of Cable
Services, which are subject to the Franchise Fee referenced above, and other
services that are not subject to that Franchise Fee. To the extent discounts
reduce revenues includable for purposes of calculating Franchise Fees, Grantee
may not unfairly or unlawfully allocate discounts for bundled services for the
purpose of evading payment of Franchise Fees to the City. As between Cable
Services and non-Cable Services, revenues shall be allocated on a pro rata
basis. If a dispute arises between the parties regarding this matter, City and
Grantee will meet within twenty (20) days’ notice and discuss such matters in
good faith in an attempt to reach a reasonable compromise thereof.
3.11 Alternative Compensation
In the event that Franchise Fees are prohibited by any law or regulation,
Franchisee shall pay to the City that amount, if any, which is determined by
applicable law.
3.12 Tax Liability
The Franchise Fees shall be in addition to any and all taxes or other levies or
assessments which are now or hereafter required to be paid by businesses by
any law of the City, the State or the United States including, without limitation,
sales, use, utility, property, permits and other taxes, or business license fees.
SECTION 4. - ADMINISTRATION AND REGULATION
The City shall be vested with the power and right to administer and enforce this
Franchise and the regulations and requirements of applicable law, including the Cable
Act, or to delegate that power and right of administration, or any part thereof, to the
extent permitted under federal, State and local law, to any agent in the sole discretion of
the City.
4.1 Rates and Charges
Grantee rates and charges related to or regarding Cable Services shall be
subject to regulation by the City to the full extent authorized by applicable federal,
State and local laws. Customer billing shall be itemized by service(s) per FCC
Regulation 76.309(B)(ii)(A) and 76.1619 or as amended. Grantee shall comply
with all applicable laws regarding rates for Cable Services and all applicable laws
covering issues of cross subsidization.
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4.2 No Rate Discrimination
All Grantee rates and charges shall be published (in the form of a publicly-
available rate card), made available to the public, and shall be non-discriminatory
as to all Persons of similar classes, under similar circumstances and conditions.
Grantee shall not deny cable service or otherwise discriminate against customers
or others. Grantee shall apply its rates in accordance with governing law. Nothing
herein shall be construed to prohibit:
(1) The temporary reduction or waiving of rates or charges in
conjunction with promotional campaigns;
(2) The offering of reasonable discounts to similarly situated Persons;
(3) The offering of rate discounts for either Cable Service generally;
or
(4) The offering of bulk discounts for Multiple Dwelling Units.
4.3 Filing of Rates and Charges
Throughout the term of this Franchise, Grantee shall maintain on file with the City
a complete schedule of applicable rates and charges for Cable Services provided
under this Franchise. Nothing in this subsection shall be construed to require
Grantee to file rates and charges under temporary reductions or waivers of rates
and charges in conjunction with promotional campaigns.
4.4 Time Limits Strictly Construed
Whenever this Franchise sets forth a time for any act to be performed by
Grantee, such time shall be deemed to be of the essence, and any failure of
Grantee to perform within the allotted time may be considered a breach of this
Franchise.
4.5 Performance Evaluation
4.5.1 Performance evaluation sessions may be held at any time upon request
by the City during the term of this Franchise following Grantee’s
repeated failure to comply with the terms of this Franchise or no more
than once in any annual period.
4.5.2 All evaluation sessions shall be open to the public and announced at
least one week in advance in a newspaper of general circulation in the
Franchise Area.
4.5.3 Topics that may be discussed at any evaluation session may include
those issues surrounding Grantee’s failure to comply with the terms of
the Franchise, provided that nothing in this subsection shall be
construed as requiring the renegotiation of this Franchise or any term or
provision therein and further provided that this subsection need not be
followed before other legal or equitable remedies within this Franchise.
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4.5.4 During evaluations under this subsection, Grantee agrees to participate
in such evaluation sessions described in this Section 4.5 and to provide
such information or documents as the City may request to perform the
evaluation.
4.6 Leased Access Channel Rates
Upon request, Grantee shall provide a complete schedule of current rates and
charges for any and all Leased Access Channels, or portions of such Channels,
provided by Grantee.
4.7 Late Fees
4.7.1 For purposes of this subsection, any assessment, charge, cost, fee or
sum, however, characterized, that Grantee imposes upon a Subscriber
solely for late payment of a bill is a late fee and shall be applied in
accordance with applicable local, State and federal laws.
4.7.2 Grantee’s late fee and disconnection policies and practices shall be
nondiscriminatory, and such policies and practices, and any fees
imposed pursuant to this subsection, shall apply equally in all parts of
the City without regard to the neighborhood or income level of the
subscribers.
SECTION 5. - FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
5.1.1 General Indemnification
Grantee, at its sole cost and expense, shall indemnify, defend and hold
the City, its officers, officials, boards, commissions, authorized agents,
representatives, and employees, harmless from any action or claim for
injury, damage, loss, liability, settlement, proceeding, judgment, or cost
or expense, including court and appeal costs and attorneys’ fees and
expenses, arising from any acts, errors, or omissions, or from the
conduct of Grantee’s business, including all damages in any way arising
out of, or by reason of, any construction, excavation, erection, operation,
maintenance, repair or reconstruction, or any other act done under this
Franchise, by or for Grantee, its authorized agents, or by reason of any
neglect or omission of Grantee its authorized agents or its employees,
except only such injury or damage as shall have been occasioned by
the sole negligence or intentional misconduct of the City. Grantee shall
consult and cooperate with the City while conducting its defense of the
City. Said indemnification obligations shall extend to any settlement
made by Grantee.
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5.1.2 Concurrent Negligence
However, should a court of competent jurisdiction determine that this
Agreement is subject to RCW 4.24.115, then, in the event of liability for
damages arising out of bodily injury to persons or damages to property
caused by or resulting from the concurrent negligence of the Grantee
and the City, its officers, officials, employees, and volunteers, the
Grantee’s liability hereunder shall be only to the extent of the Grantee’s
negligence.
5.1.3 Indemnification for Relocation
Grantee shall indemnify, defend and hold the City, its elected officials,
officers, authorized agents, boards, and employees, harmless for any
damages, claims, additional costs, or expenses payable by, the City
related to, arising out of, or resulting from Grantee’s failure to remove,
adjust or relocate any of its facilities in the Rights-of-Way in a timely
manner in accordance with any lawful relocation required by the City.
Pursuant to Section 5.1.1, the provisions of this Section 5.1.3 shall
specifically include, but are not limited to, claims for delay, damages,
costs, and/or time asserted by any contractor performing public work for
or on behalf of the City.
5.1.4 Additional Circumstances
Grantee shall also indemnify, defend and hold the City harmless for any
claim for injury, damage, loss, liability, cost and expense, including court
and appeal costs and attorneys’ fees and expenses in any way arising
out of any failure by Grantee to secure consents from the owners,
authorized distributors or franchisees/licensors of programs to be
delivered by the Cable System, provided however, that Grantee will not
be required to indemnify the City for any claims arising out of the use of
Access Channels by the City and/or its Designated Access Providers or
use by the City of the Emergency Alert Cable System.
5.1.5 Procedures and Defense
If a claim or action arises, the City or any other indemnified party shall
tender the defense of the claim or action to Grantee, which defense
shall be at Grantee’s expense. The City may participate in the defense
of a claim and, in any event, Grantee may not agree to any settlement of
claims financially affecting the City without the City’s written approval
that shall not be unreasonably withheld.
5.1.6 Duty of Defense
The fact that Grantee carries out any activities under this Franchise
through independent contractors shall not constitute an avoidance of or
defense to Grantee’s duty of defense and indemnification under this
Section 5.1.
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5.1.7 Duty to Give Notice
The City shall give Grantee timely written notice of any claim or of the
commencement of any action, suit or other proceeding covered by the
indemnity in this Section. The City’s failure to so notify and request
indemnification shall not relieve Grantee of any liability that Grantee
might have, except to the extent that such failure prejudices Grantee’s
ability to defend such claim or suit. In the event any such claim arises,
the City or any other indemnified party shall tender the defense thereof
to Grantee and Grantee shall have the obligation and duty to defend any
claims arising thereunder, and the City shall cooperate fully therein.
5.1.8 Separate Representation
If separate representation to fully protect the interests of both parties is
necessary, such as a conflict of interest between the City and the
counsel selected by Grantee to represent the City, Grantee shall select
other counsel without conflict of interest with the City.
5.1.9 Prior Franchises
The grant of this Franchise shall have no effect on Grantee’s duty under
the prior franchises to indemnify or insure the City against acts and
omissions occurring during the period that the prior franchises were in
effect, nor shall it have any effect upon Grantee’s liability to pay all
Franchise Fees which were due and owed under prior franchises.
5.1.10 Waiver of Title 51 RCW Immunity
Grantee’s indemnification obligations shall include indemnifying the City
for actions brought by Grantee’s own employees and the employees of
Grantee’s agents, representatives, contractors, and subcontractors even
though Grantee might be immune under Title 51 RCW from direct suit
brought by such an employee. It is expressly agreed and understood
that this indemnification for actions brought by the aforementioned
employees is limited solely to claims against the City arising by virtue of
Grantee’s exercise of the rights set forth in this Franchise. To the extent
required to provide this indemnification and this indemnification only,
Grantee waives its immunity under Title 51 RCW as provided in RCW
4.24.115; provided however, the forgoing waiver shall not in any way
preclude Grantee from raising such immunity as a defense against any
claim brought against Grantee by any of its employees or other third
party. The obligations of Grantee under this Section 5.1.10 have been
mutually negotiated by the parties hereto.
5.1.11 Inspection
Inspection or acceptance by the City of any work performed by Grantee
at the time of completion of construction or maintenance projects shall
not be grounds for avoidance of any of these covenants of
indemnification.
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5.1.12 Damage to Grantee Facilities
Notwithstanding any other provisions of this Section 5.1, Grantee
assumes the risk of damage to its Cable System facilities located in or
upon the Rights-of-Way from activities conducted by the City, and
agrees to release and waive any and all such claims against the City
except to the extent any such damage or destruction is caused by or
arises from the gross negligence, intentional misconduct or criminal
actions of the City. In no event shall the City be liable for any indirect,
incidental, special, consequential, exemplary, or punitive damages,
including by way of example and not limitation lost profits, lost revenue,
loss of goodwill, or loss of business opportunity in connection with the
City’s acts or omissions.
5.1.13 Environmental Liability
Grantee shall at its own cost, expense, and liability, comply with all
applicable laws, statutes, rules, and regulations concerning Hazardous
Substances that relate to Grantee’s Cable System. “Hazardous
Substances” shall mean any material or substance which does cause or
may cause environmental pollution or contamination (and associated
liability and clean-up costs related thereto) as defined under applicable
state and federal laws, rules, and regulations. Grantee shall be solely
and separately liable and responsible for the containment, remediation
and/or clean-up of any release of Hazardous Substances directly arising
from or relating to Grantee’s Cable System. Grantee shall indemnify,
defend and hold the City harmless from any fines, suits, procedures,
claims, costs, damages, expenses, and actions of any kind arising out of
or in any way connected with any release(s) of Hazardous Substances
directly arising from or related to Grantee’s Cable System. This
indemnity includes, but is not limited to:
(1) liability for a governmental agency’s costs of removal or remedial
action for Hazardous Substances;
(2) damages to natural resources caused by Hazardous Substances,
including the reasonable costs of assessing such damages;
(3) liability for the City’s costs of responding to Hazardous
Substances; and
(4) liability for any costs of investigation, abatement, mitigation,
correction, remediation, cleanup, fines, penalties, or other
damages arising under any environmental laws.
5.2 Insurance Requirements
5.2.1 General Requirement
Grantee shall procure and maintain for the duration of the Franchise and
as long as Grantee has Facilities in the Rights-of-Way, insurance
against claims for injuries to persons or damage to property which may
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arise from or in connection with the Agreement and use of the rights-of-
way in the coverage amounts described below:
(1) Commercial General Liability coverage for bodily injury, personal
injury, and property damage with limits of no less than five million
dollars ($5,000,000) per occurrence. The general aggregate limit
shall be no less than five million dollars ($5,000,000). Commercial
General Liability insurance shall be at least as broad as ISO
occurrence form CG 00 01 and shall cover liability arising from
premises, operations, stop gap liability, independent contractors,
products-completed operations, personal injury and advertising
injury, and liability assumed under an insured contract. There
shall be no exclusion for liability arising from explosion, collapse
or underground property damage. The City shall be named as an
additional insured under the Grantee’s Commercial General
Liability insurance policy with respect this Franchise using ISO
endorsement CG 20 12 05 09 or CG 20 26 07 04, or substitute
endorsement providing at least as broad coverage.
(2) Commercial Automobile Liability Insurance with minimum
combined single limits of at least two million dollars ($2,000,000)
each occurrence and five million dollars ($5,000,000) aggregate
with respect to each of Grantee’s owned, hired and non-owned,
or any other vehicles assigned to or used in any activities
authorized under or used in conjunction with this Franchise.
Automobile Liability insurance shall cover all owned, non-owned,
hired and leased vehicles. Coverage shall be at least as broad as
Insurance Services Office (ISO) form CA 00 01.
(3) Workers’ Compensation coverage as required by the Industrial
Insurance laws of the State of Washington.
(4) Umbrella or excess liability insurance in the amount of five million
dollars ($5,000,000). Excess or Umbrella Liability insurance shall
be excess over and at least as broad in coverage as the Grantee’s
Commercial General Liability and Automobile Liability insurance.
The City shall be named as an additional insured on the Grantee’s
Excess or Umbrella Liability insurance policy. The Excess or
Umbrella Liability requirement and limits may be satisfied instead
through Grantee’s Commercial General Liability and Automobile
Liability insurance, or any combination thereof that achieves the
overall required limits.
5.2.2 Primary Insurance
Grantee’s Commercial General Liability, Automobile Liability, and
Excess or Umbrella Liability, insurance policy or policies are to contain,
or be endorsed to contain, that they shall be primary insurance as
respect the City. Any insurance, self-insurance, or self-insured pool
coverage maintained by the City shall be excess of the Grantee’s
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insurance and shall not contribute with it. The City, and the City’s
officers, officials, boards, commissions, agents, representatives, and
employees are to be covered as, and have the rights of, additional
insured’s with respect to liability arising out of activities performed by, or
on behalf of, Grantee under this Franchise or applicable law, or in the
construction, operation, upgrade, maintenance, repair, replacement or
ownership of the Cable System;
5.2.3 Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of
not less than A: VII.
5.2.4 Verification of Coverage
Grantee shall furnish the City with original certificates and a copy of the
amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements
of the Franchise. Upon request by the City, the Grantee shall furnish
certified copies of all required insurance policies, including
endorsements, required in this Franchise and evidence of all
subcontractors’ coverage.
5.2.5 Subcontractors
Grantee shall cause each and every subcontractor to provide insurance
coverage that complies with all applicable requirements of the Grantee
provided insurance as set forth herein, except the Grantee shall have
sole responsibility for determining the limits of coverage required to be
obtained by Subcontractors. The Grantee shall require that the City is
an additional insured on the Subcontractor’s Commercial General
liability insurance policy.
5.2.6 Notice of Cancellation
Grantee shall provide the City with written notice of any policy
cancellation within two business days of their receipt of such notice.
5.2.7 Failure to Maintain Insurance
Failure on the part of Grantee to maintain the insurance as required
shall constitute a material breach of Franchise, upon which the City
may, after giving five business days’ notice to Grantee to correct the
breach, terminate the Franchise or, at its discretion, procure or renew
such insurance and pay any and all premiums in connection therewith,
with any sums so expended to be repaid to the City on demand.
5.2.8 Grantee – Self-Insurance
If the Grantee is self-insured or becomes self-insured during the term of
the Franchise, Grantee or its affiliated parent entity shall comply with the
following:
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(1) provide the City, upon request, a copy of Grantee’s or its parent
company’s most recent audited financial statements, if such
financial statements are not otherwise publicly available;
(2) Grantee or its parent company is responsible for all payments
within the self-insured retention; and
(3) Grantee assumes all defense and indemnity obligations as
outlined in the indemnification section of this Franchise.
5.2.9 No Limitation of Liability
Grantee’s maintenance of insurance as required by this Franchise shall
not be construed to limit the liability of Grantee to the coverage provided
by such insurance, or otherwise limit the City’s recourse to any remedy
available at law or in equity.
5.3 Security
5.3.1 Grantee shall provide a performance bond (“Performance Bond”) in the
amount of twenty-five thousand dollars ($25,000) to ensure the faithful
performance of its responsibilities under this Franchise and applicable
law, including, by way of example and not limitation, its obligations to
relocate and remove its facilities and to restore the City Rights-of-Way
and other property. The Performance Bond shall be in a standard
industry form. Grantee shall pay all premiums or costs associated with
maintaining the Performance Bond and shall keep the same in full force
and effect at all times. Except as expressly provided in Section 5.4,
Grantee shall not be required to obtain or maintain other bonds as a
condition of being awarded the Franchise or continuing its existence.
5.3.2 If there is an uncured breach by Grantee of a material provision of this
Franchise or a pattern of repeated violations of any provision(s) of this
Franchise, then the City may request and Grantee shall establish and
provide within thirty (30) days from receiving notice from the City, to the
City, as security for the faithful performance by Grantee of all of the
provisions of this Franchise, an irrevocable letter of credit from a
financial institution satisfactory to the City in the amount of twenty-five
thousand dollars ($25,000).
5.3.3 If a letter of credit is furnished pursuant to subsection (B), the letter of
credit shall then be maintained at that same amount until the uncured
breach is resolved.
5.3.4 After the giving of notice by the City to Grantee and expiration of any
applicable cure period, the letter of credit or Performance Bond may be
drawn upon by the City for purposes including, but not limited to, the
following:
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(1) Failure of Grantee to pay the City sums due under the terms of
this Franchise;
(2) Reimbursement of costs borne by the City to correct Franchise
violations not corrected by Grantee;
(3) Liquidated damages assessed against Grantee as provided in this
Franchise.
5.3.5 The City shall give Grantee written notice of any withdrawal from the
Performance Bond or letter of credit. Within ten (10) days following
notice that a withdrawal has occurred from the Performance Bond or
letter of credit, Grantee shall restore the Performance Bond or letter of
credit to the full amount required under this Franchise. Grantee's
maintenance of the letter of credit shall not be construed to excuse
unfaithful performance by Grantee or limit the liability of Grantee to the
amount of the letter of credit or otherwise limit the City's recourse to any
other remedy available at law or in equity.
5.3.6 Grantee shall have the right to appeal to the hearing examiner for
reimbursement in the event Grantee believes that the Performance
Bond or letter of credit was drawn upon improperly. Grantee shall also
have the right of judicial appeal if Grantee believes the letter of credit
has not been properly drawn upon in accordance with this Franchise.
Any funds the City erroneously or wrongfully withdraws from the
Performance Bond or letter of credit, as determined by either the
hearing examiner or judicial appeal, shall be returned to Grantee with
interest, from the date of withdrawal at a rate equal to the prime rate of
interest as quoted in The Wall Street Journal as of the date of such
decision.
5.3.7 If any Performance Bond or letter of credit delivered pursuant thereto
expires prior to twelve (12) months after the expiration of the term of this
Franchise, it shall be renewed or replaced during the term of this
Franchise to provide that it will not expire earlier than twelve (12)
months after the expiration of this Franchise. The renewed or replaced
Performance Bond or letter of credit shall be of the same form and with
a bank authorized herein and for the full amount stated in this Section.
5.4 Bonds
Grantee, at its expense, shall comply with all of the applicable construction or
maintenance bonding requirements provided for in the City Code, permit
requirements, or development standards officially adopted by the City for work in
the Rights-of-Way.
SECTION 6. - CUSTOMER SERVICE
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6.1 Customer Service Standards
Grantee shall comply with Customer Service Standards as provided in FCC
Standards 47 C.F.R. Sections 76.309, 76.1602, 76.1603 and 76.1619 and in
MMC 5.08.140.
6.2 Subscriber Privacy
Grantee shall comply with privacy rights of Subscribers in accordance with
applicable law.
6.3 Customer Service Agreement and Manual
6.3.1 Grantee shall provide to Subscribers an accurate, comprehensive
service agreement (currently called the work order) and Customer
installation packet (currently called the Install Package) for use in
establishing Subscriber service. This material shall, at a minimum,
contain the following:
(1) Grantee’s procedure for investigation and resolution of Subscriber
service complaints.
(2) Services to be provided and rates for such services.
(3) Billing procedures.
(4) Service termination procedure.
(5) A description of the manner that will be used to provide notice of
changes in rates, service or service terms and conditions.
(6) A complete statement of the Subscriber’s right to privacy.
(7) Equipment policy.
(8) The name, address and phone number of the Customer care
department that is responsible for handling cable questions and
complaints for Grantee.
6.3.2 A copy of the installation packet shall be available to each Subscriber at
the time of initial installation and any reconnection or Cable Service
upgrade requiring a home visit by Grantee (excluding reconnections to
the same Subscriber within twelve (12) months), and at any time the
packet is requested by the Subscriber. Within thirty (30) days following
material policy changes, information regarding the changes will be
provided to Subscribers.
SECTION 7. - REPORTS AND RECORDS
7.1 Open Records
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7.1.1 Grantee shall manage all of its operations in accordance with a policy of
keeping its documents and records open and accessible to the City. In
addition to any other records that may be provided for under any other
section of this Franchise, the City, including the City’s Finance Director
and Public Works Director or their designees, shall have access to, and
the right to inspect, any books and records of Grantee, its parent
corporations and Affiliates, which are reasonably related to the
administration or enforcement of the terms of this Franchise, or
Grantee’s use and location within the City’s Rights-of-Way. Records
subject to this Section 7.1 include, without limitation, FCC filings on
behalf of Grantee, its parent corporations, or Affiliates which directly
relate to the operation of the Cable System in the City; SEC filings;
listing of Cable Services, rates, and Channel line-ups; Cable Services
added or dropped; Channel changes; the net number of Subscribers
and the number of Subscribers added and terminated; all planned
construction activity; Right-of-Way route maps (including overhead and
underground trunk and distribution facilities in a GIS format); beginning
and ending plant miles; total homes passed for the previous twelve (12)
months; and any significant technological changes occurring in the
Cable System; federal and State reports; reports of Subscriber
complaints in the City and how such complaints are resolved.
7.1.2 Grantee shall not deny the City access to any of Grantee’s records on
the basis that Grantee’s records are under the control of any parent
corporation, Affiliate, or a third party. The City may, in writing, request
copies of any such records or books and Grantee shall provide such
copies within thirty (30) days of the transmittal of such request. One (1)
copy of all reports and records required under this or any other
subsection shall be furnished to the City, at the sole expense of
Grantee. If the requested books and records are too voluminous, or for
security reasons cannot be copied or removed, then Grantee may
require that the City or its designee inspect them at Grantee’s local
offices. For purposes of clarity, any requirements to provide as-built
maps shall not be considered too voluminous or unable to be copied for
security purposes with respect to the provisions of this subsection 7.1.2.
If any books or records of Grantee are not kept in a local office and are
not made available in copies to the City or its designee upon written
request as set forth above, and if the City determines that an
examination of such records is necessary or appropriate for the
performance of any of the City’s duties, administration or enforcement of
this Franchise, then all reasonable travel and related expenses incurred
in making such examination shall be paid by Grantee.
7.2 Confidentiality
7.2.1 Grantee shall not be required to disclose information that it reasonably
deems to be proprietary or confidential in nature. That said, Grantee
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does agree to provide all information reasonably required to verify
compliance with the material terms of the Franchise. If Grantee believes
that any documents are confidential or proprietary, Grantee shall be
responsible for clearly and conspicuously identifying the work as
confidential or proprietary, and shall provide a brief written explanation
as to why such information is confidential and how it may be treated as
such under State or federal law.
7.2.2 As a public agency, records and information provided to or otherwise
used by the City may be subject to a request submitted under the state
Public Records Act. In such an event, Grantee agrees to cooperate fully
with the City in satisfying the City’s duties and obligations under the
Public Records Act, subject to Grantee’s rights under this Franchise and
RCW 42.56.540. If a request is received for records Grantee has
submitted to the City and has identified as confidential, proprietary or
protected trade secret material, the City will use its best efforts to
provide Grantee with notice of the request in accordance with RCW
42.56.540 and a reasonable time (of no less than 10 days) within which
Grantee may seek an injunction to prohibit the City’s disclosure of the
requested record. The City shall comply with any injunction or court
order requested by Grantee which prohibits the disclosure of any such
confidential records; however, in the event a higher court overturns such
injunction or court order, Grantee shall reimburse the City for any fines
or penalties imposed for failure to disclose such records. Nothing in this
Section 7.2 prohibits the City from complying with RCW 42.56, or any
other applicable law or court order requiring the release of public
records, and the City shall not be liable to Grantee for compliance with
any law or court order requiring the release of public records. The City
is not required to assert on Grantee’s behalf any exemption based on
trade secret, proprietary or confidential information, provided, however,
the City may assert such exemption if the City itself believes in good
faith that an exemption applies to the requested records. Grantee
agrees to defend, indemnify and hold the City, its officers, officials,
employees, agents, and volunteers harmless from any and all claims,
injuries, damages, losses or suits, including all legal costs and attorney
fees, arising out of or in connection with the assertion of an exemption
to disclosure under the Public Records Act based upon records claimed
or identified by Grantee as confidential, proprietary or protected trade
secret material. The provisions of this section shall survive the
expiration or termination of this Franchise.
7.3 Annual Reports
Upon request, and no more than ninety (90) days after the end of the first
quarter, Grantee shall submit to the City a written report, which shall include the
following information:
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7.3.1 A Gross Revenue statement for the preceding calendar year and all
deductions and computations for the period, and such statement shall
be reviewed by a certified public accountant.
7.3.2 A summary of the previous year’s activities regarding the development
of the Cable System, including, but not limited to, homes passed,
beginning and ending plant miles and the total number of Subscribers.
SECTION 8. - PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide at least the following broad categories of programming to
the extent such categories are reasonably available.
(1) Educational programming;
(2) News, government, weather and information;
(3) Sports;
(4) General entertainment including movies;
(5) Foreign language programming; and
(6) Children’s programming.
8.2 Deletion of Broad Programming Categories
8.2.1 Grantee shall not delete or so limit as to effectively delete any broad
category of programming within its control without prior written notice to
the City.
8.2.2 In the event of a modification proceeding under federal law, the mix and
quality of Cable Services provided by Grantee shall follow the guidelines
of federal law.
8.3 Obscenity
Grantee shall not transmit, or permit to be transmitted, over any Channel subject
to its editorial control any programming which is obscene under applicable
federal, State or local laws.
8.4 Services for the Disabled
Grantee shall comply with the Americans With Disabilities Act and any
amendments or successor legislation thereto.
8.5 Parental Control Device
Upon request by any Subscriber, Grantee shall make available at no charge a
parental control or lockout device, traps or filters to enable a Subscriber to control
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access to both the audio and video portions of any Channels. Grantee shall
inform its Subscribers of the availability of the lockout device at the time of their
initial subscription and periodically thereafter.
8.6 Complimentary Cable Service
The City acknowledges that Grantee currently provides certain complimentary
video services to schools, libraries, and municipal buildings, without charge.
Grantee will continue to provide this complimentary service, provided that the
facilities are already served or are within 125 aerial service feet or 60
underground trench feet (a Standard Installation) of Grantee’s Cable System,
excluding those buildings or portions of buildings that house or occupy prison/jail
populations. For as long as the Franchise Fee is below five percent (5%) of
Gross Revenues, Grantee agrees to continue the provision of complimentary
services to the extent that the regular retail price of such complimentary services
does not exceed one percent (1%) of Gross Revenues. Should Grantor elect to
increase its Franchise Fee to 5% of Gross Revenues, Grantee shall be entitled to
charge its regular retail rate for services to schools, libraries and municipal
buildings unless the Grantor directs the Grantee to discontinue the provision of
such services.
8.7 New Technology
8.7.1 If there is a new technology, Cable Service program offering,
programming delivery method or other such new development that
Grantee in its sole discretion decides to beta test or trial on a limited
basis in the marketplace, and such a test or trial is suited to the size and
demographics of the City, Grantee shall be allowed by the City to
conduct the trial or beta test in the City so long as such a test is
technically feasible.
8.7.2 If there is a new technology that in the City’s opinion would enhance
substantially the quality or quantity of programming available to
Subscribers on the Cable System, Grantee shall, at the request of the
City, investigate the feasibility of implementing said technology and
report to the City the results of such investigation within ninety (90) days
from the date of such request.
SECTION 9. - PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
9.1 Access Channels
9.1.1 Upon one hundred twenty (120) days written notice, the Grantee shall
make available one (1) Standard Digital (SD) Government Access
Channel throughout the term of this Franchise. Upon receipt of the
written notice, the City and the Grantee shall meet to discuss and
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mutually agree upon an implementation plan to activate said Channel
controlled and operated by the City.
9.1.2 The City acknowledges that the Grantee’s Cable System provides
additional benefits to Access programming needs beyond the
requirements listed in subsection 9.1.1 above. This is accomplished
through the inclusion of other regional access programming within the
regional channel line-up that services the Franchise Area. The Grantee
will endeavor to provide the Subscribers in the Franchise Area with the
other regional access channels so long as the programmers offer them
for use on the Cable System.
9.1.3 In the event Grantee makes any change in the Cable System and
related equipment and facilities or in signal delivery technology, which
change directly or indirectly affects the signal quality or transmission of
any Access Channel programming or services, Grantee shall, at its own
expense, take necessary technical steps, acquire new equipment so
that the Access facilities and equipment may be used as intended to
ensure that delivery of Access Video Programming signals is not
diminished or adversely affected, including, among other things, so that
live and taped programming can be cablecast with as good or better
signal quality than existed prior to such change.
9.2 Simulcast High Definition (HD) Access Channel
9.2.1 The Grantee agrees to simulcast the one (1) SD Government Access
Channel in HD (HD PEG Channel) format after the City's maintains an
average of five (5) hours per-day, five days per-week of Locally
Scheduled Original Programming. For the purposes of this subsection,
character-generated programming (i.e., community bulletin City
Councils) shall not satisfy, in whole or in part, this programming
requirement. Once the City meets or exceeds this programming
requirement, the Grantee shall provide the HD PEG Channel under the
following conditions:
(1) Upon the City’s request, the Grantee shall have one-hundred and
twenty (120) days to activate the simulcast HD PEG Channel.
(2) The Grantee shall be responsible for all capital engineering costs
associated with fulfilling the request to activate the simulcast HD
PEG Channels.
(3) The City or any Designated Access Provider shall be responsible
for acquiring all equipment necessary to produce programming in
HD.
(4) Upon activation of the simulcast HD PEG Channel, Comcast shall
own and maintain the encoder equipment used to transmit the HD
signal from City Hall (the demarcation point).
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(5) The City shall provide the HD PEG Channel signal as specified by
the Grantee’s engineering standards, as amended by the Grantee
from time to time because of changes in technology.
9.2.2 The City acknowledges that the simulcast HD PEG Channel will be
available only to those Subscribers who elect to subscribe to Grantee’s
high-definition Cable Service, receive a HD set-top converter, and pay
all fees associated therewith.
9.2.3 Grantee shall have sole discretion to determine the Channel placement
of the simulcast HD PEG Access Channel within its HD channel line-up.
9.3 Management and Control of Access Channels
9.3.1 The City may authorize Designated Access Providers 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 or its designee may formulate
rules for the operation of the Access Channels, consistent with this
Franchise, the FCC, federal and State law. Nothing herein shall prohibit
the City from authorizing itself to be a Designated Access Provider.
9.3.2 Grantee shall cooperate with the City and Designated Access Providers
in the use of the Cable System and Access facilities for the provision of
Access Channels.
9.4 Location and Quality of Access Channels
9.4.1 The Standard Definition Access Channel provided to Subscribers under
this Franchise shall be included by Grantee as a part of the lowest Tier
of service provided to all Subscribers in the Franchise. Grantee agrees
to use reasonable efforts to place the Access Channel in the same
vicinity as other local government access channels. Grantee will use
reasonable efforts to minimize the movement of SD and HD Access
Channel assignments.
9.4.2 In addition, Grantee will make reasonable efforts to locate the HD
Access Channel provided pursuant to Section 9.2 in a location on its HD
Channel lineup that is easily accessible to Subscribers.
9.4.3 The parties agree that it is the responsibility of the Designated Access
Provider(s) to provide a quality Access signal, to the Grantee at the
point of demarcation, which meets or exceeds the FCC technical
standards. Notwithstanding the forgoing, the Grantee agrees that it will
deliver to subscribers an Access signal of the same quality it receives
from the Designated Access Provider(s) without degradation and in
accordance with the FCC technical standards. There shall be no
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restriction on Grantee’s technology used to deploy and deliver Standard
Definition or High Definition signals so long as the requirements of the
Franchise are otherwise met. FCC technical standards shall be used for
all testing and assessment of quality under this section.
9.4.4 Grantee shall provide Headend and hub equipment and routine
maintenance and repair and replace, if necessary, any of Grantee’s
equipment required to carry the Access signal to and from the City’s and
any other Access origination point and the Grantee’s Headend and hubs
for the Access Channels.
9.4.5 If Grantee makes a change in its Cable System and related equipment
and facilities, or in its signal delivery technology, which directly or
indirectly affects the signal quality or method or type of transmission of
Access programming or services, Grantee shall take necessary
technical steps and provide necessary technical assistance, including
the acquisition of all necessary equipment and full training of access
personnel, to ensure that the capabilities of Access Channels and
delivery of Access programming are not diminished or adversely
affected by such change. For example, live and taped programming
must be cablecast with as good or better signal quality than existed prior
to such change.
9.5 Access Channel Identification/Location/Relocation/Bill Insertions
9.5.1 Grantee will use reasonable efforts to minimize the movement of Access
Channel assignments. Grantee shall provide to the City a minimum of
sixty (60) days notice, and use its best efforts to provide ninety (90) days
notice, prior to any relocation of its Access Channels, unless the change
is required by federal law, in which case Grantee shall give the City the
maximum notice possible.
9.5.2 Grantee, upon request, and when space is available, shall provide the
City the opportunity to include two bill insertions per year. The City or
Designated Access Providers shall be responsible for the costs of
printing its bill insertions, the cost of inserting the information into
Grantee’s bills and for any incremental postage costs. Bill insertions
must conform to Grantee’s reasonable mailing requirements. Grantee
shall be provided an opportunity to review and approve all Access bill
insertions.
9.6 Support for Access Capital Costs
9.6.1 Upon one hundred twenty (120) days notice from the City, Grantee shall
collect and remit to the City, as support for any lawful capital PEG use,
twenty-five cents ($.25) per Subscriber per month, payable quarterly
with Franchise Fees as a “PEG Contribution.” The PEG Contribution
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shall not be treated as franchise fees for purposes of 47 U.S.C. § 542 or
any other purpose, and shall at no time be offset or deducted from
franchise fee payments made to the City under this Franchise or
applicable law. Upon sixty (60) days written notice to Grantee, the City
Council may direct Grantee to no longer collect such PEG Fee from
Subscribers.
9.6.2 If during the Term of this Franchise, the City Council determines that
there is a need for additional capital equipment to support the Access
Channels, then based upon that demonstrated need, both parties shall
meet to determine how to adjust the PEG Contribution and if the
remaining term of this franchise does not accommodate the full capital
needs of the city, both parties may review the possibilities of extending
the term of the franchise. Such amount shall be the same amount
required of all other Cable Operators in the Franchise Area. The City
agrees that 47 C.F.R. §76.922 permits Grantee to add the cost of the
PEG Contribution to the price of Cable Services and to collect the PEG
Contribution from Subscribers. In addition, as permitted in 47 C.F.R.
§76.985, all amounts paid as the PEG Contribution may be separately
stated on Subscriber’s bills as a government access capital equipment
fee.
9.6.3 The City shall have discretion to allocate the PEG Contribution in
accordance with applicable law. To the extent the City makes access
capital investments using City funds prior to receiving the monthly PEG
Contribution funds, the City is entitled to apply the subsequent monthly
PEG Contribution payments from Grantee toward such City capital
investments. The City agrees that the PEG Contribution may be treated
as a separate line item on Subscriber bills in accordance with applicable
federal law.
9.6.4 Upon the Grantee’s written request, the City shall submit a report no
more frequently than annually on the use of the City specific Access
Channels and capital PEG Fee. The City shall submit a report to the
Grantee within one hundred twenty (120) days of a written request. The
Grantee may review the records of the City regarding the use of the
PEG Contribution.
9.6.5 Unless the City determines to no longer use the Access Channels, the
City shall dedicate the time, personnel and other resources needed to
operate the Access Channels designated herein.
9.7 Technical Quality
Grantee shall maintain all Access channels as required by FCC standards.
Grantee shall ensure that any Access Channels carried in High Definition format
can also be viewed in Standard Definition format by Subscribers who do not
receive High Definition service or do not have High Definition equipment, with the
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same quality and functionality as commercial channels of the same format,
whether through simulcasting the programming in Standard and High Definition,
or by means of another technical solution used by Grantee for other commercial
programmers carried on the channel lineup.
9.8 Return Connectivity
9.8.1 When the City provides notice to the Grantee concerning its election to
control and operate the SD Access Channel, the City shall designate its
proposed Access facility location. Within sixty (60) days of receiving
notice, the Grantee shall review its facilities and records and provide an
estimate of costs associated with the construction and activation of a
fiber optic return line capable of transmitting Video Programming to
enable the distribution of the City's Access programming to Subscribers
on the provided SD Access Channel. The return line shall run from a
location to be determined by the City to the Grantee's facilities. Within a
reasonable time-period of receiving the City's directive, the Grantee
shall construct and activate a return line in accordance with the cost
estimate previously provided. The City agrees to pay the actual costs of
the return line within ninety (90) days of construction / activation and
receipt of an invoice from the Grantee. The parties agree that the City
may use the PEG Contribution to pay for the construction of this return
line.
9.8.2 Once activated and throughout the remaining term of this Franchise,
Grantee shall continue to provide and maintain such return line, as per
federal law.
9.9 Guide Selection
Grantee agrees that if it utilizes a visual interface under its control on its Cable
System for all Channels, the Access Channels shall be treated in a non-
discriminatory fashion consistent with applicable laws so that Subscribers will
have ready access to Access Channels. To the extent the configuration of the
Cable System allows for detailed program listings to be included on the digital
channel guide, Grantee will make available to City the ability to place Access
Channel programming information on the interactive Channel guide via the
electronic programming guide (“EPG”) vendor (“EPG provider”) that Grantee
utilizes to provide the guide service. Grantee will be responsible for providing the
designations and instructions necessary for the Access Channels to appear on
the EPG and the City will be responsible for providing Access content in a format
that is compatible with the EPG. All costs and operational requirements for the
EPG provider shall be the responsibility of the City. Grantee is not responsible for
operations of the EPG provider. Grantee shall, to the maximum extent possible,
make available to the City any price discounts Grantee may have in place with
third party vendors that offer such programming guide services. The cost of this
guide service may be funded in any manner consistent with applicable law.
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SECTION 10. - GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1 Construction
10.1.1 Grantee hereby acknowledges that the City Code contains construction
requirements for the usage of the Rights-of-Way and agrees to abide by
such construction requirements, including but not limited to those
contained in MMC Chapters 5.08, 19.10 and 19.12.
10.1.2 Grantee shall perform all maintenance, construction, repair, upgrade
and reconstruction necessary for the operation of its Cable System in
accordance with applicable laws, regulations, ordinances, City
standards, (City’s engineering design and development standards) and
provisions of this Franchise. Prior to doing such work Grantee shall
apply for, and obtain, appropriate permits from the City, and give
appropriate notices to the City, and Grantee shall pay all applicable fees
upon issuance of the requisite permits by the City to Grantee. As a
condition of any permits so issued, the City officials may impose such
conditions and regulations as are necessary for the purpose of
protecting any structures in such Rights-of-Way, proper restoration of
such Rights-of-Way and structures, protection of the public and the
continuity of pedestrian or vehicular traffic. All facilities constructed or
operated under this Franchise shall be installed and maintained at such
places in or upon such rights-of-way as shall not interfere with the free
passage of traffic and the free use of adjoining property, and shall
conform to federal standards, state requirements, and city regulations.
To the extent practicable and economically feasible, Grantee’s
construction and location of its facilities shall be of minimal impact to the
City streets and sidewalks located within the Rights-of-Way. All
construction and maintenance of any and all of Grantee’s facilities within
the Rights-of-Way shall, regardless of who performs the construction, be
and remain Grantee’s responsibility.
10.1.3 Prior to beginning any construction, excavations, or significant repair,
Grantee shall provide the City with a construction schedule for work in
the Rights-of-Ways as required by the City’s permitting regulations.
Further, Grantee shall meet with the City and other franchise and master
permit holders and users of the Rights-of-Way upon written notice as
determined by the City, to discuss options regarding scheduling and
coordinating construction in the Rights-of-Way.
10.1.4 Grantee may make excavations in Rights-of-Way for any facility needed
for the maintenance or extension of Grantee’s Cable System.
Whenever it is possible and reasonably practicable to joint trench or
share bores or cuts, Grantee shall work with other providers, permittees
and franchisees so as to reduce so far as possible the number of
Rights-of-Way cuts within the Franchise Area.
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10.1.5 In the event that emergency repairs are necessary, Grantee will make
best efforts to contact the City’s Public Works Department
(425.233.6400) prior to the repair, however Grantee may initiate such
emergency repairs, and shall apply for appropriate permits within forty-
eight (48) hours after discovery of the emergency.
10.1.6 Grantee shall be subject to any and all requirements established by the
City with regard to the placement and screening of Grantee’s property.
Such requirements may include, but are not limited to, the use of
landscaping to screen pedestals and cabinets and a requirement that
construction be flush with the natural grade of the surrounding area.
10.2 Location of Facilities
10.2.1 Prior to doing any digging or excavation in the Rights-of-Way, Grantee
shall follow established procedures, including contacting the Utility
Notification Center in Washington and comply with all applicable State
statutes regarding the One Call Locator Service pursuant to RCW
19.122.
10.2.2 Further, upon request from the City in conjunction with the design of any
City project, and no more than thirty (30) days following such request,
Grantee shall, at Grantee’s expense, mark on the surface all of its
located underground facilities within the area of the proposed
excavation, including horizontal and vertical location.
10.3 Restoration of Rights-of-Way
10.3.1 When any opening is made by Grantee in a hard surface pavement in
any Rights-of-Way, Grantee shall promptly refill the opening and restore
the surface as required by its permit. Grantee shall guarantee the
durability and structural integrity of any street cut or repair made by it or
its agents or subcontractors which is necessary for the construction,
installation, operation, repair or maintenance of Grantee’s Facilities for
the life of the street; provided, that no action by an unrelated third party
materially affects the integrity of the Grantee’s street cut or repair.
Grantee shall repair or replace, at no expense to the City, any failed
street cut or repair which was completed by the Grantee or its agents or
subcontractors.
10.3.2 If Grantee excavates the surface of any Rights-of-Way, Grantee shall be
responsible for restoration in accordance with applicable regulations
regarding the Rights-of-Way and its surface within the area affected by
the excavation. The City may, after providing notice to Grantee, and
Grantee’s failure to respond within the agreed upon time, refill or repave
any opening made by Grantee in the Rights-of-Way, and the expense
thereof shall be paid by Grantee. In the event Grantee does not repair a
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Right-of-Way or an improvement in or to a Right-of-Way in a prompt
timeframe or as agreed to with the City Engineer or any other
department director as the City may designate, the City may repair the
damage and shall be reimbursed its actual cost within thirty (30) days of
submitting an invoice to Grantee. The cost of all repairs and restoration,
including the costs of inspection and supervision shall be paid by
Grantee. All of Grantee’s work under this Franchise, and this Section in
particular, shall be done in compliance with all laws, regulations and
ordinances of the City and State. All work by Grantee pursuant to this
Section shall be performed in accordance with applicable City
standards.
10.3.3 The Public Works Director or any other department director as the City
may designate shall have final approval of the condition of such streets
and public places after restoration.
10.4 Maintenance and Workmanship
10.4.1 Grantee’s Cable System shall be constructed and maintained in such
manner as not to interfere with sewers, stormwater, water pipes or any
other property of the City, or with any other pipes, wires, conduits,
pedestals, structures or other facilities that may have been laid in
Rights-of-Way by, or under, the City’s authority.
10.4.2 Grantee shall provide and use any equipment and appliances necessary
to control and carry Grantee’s signals so as to prevent injury to the
City’s property or property belonging to any Person. Grantee, at its own
expense, shall repair, renew, change and improve its facilities to keep
them in safe condition.
10.4.3 Grantee’s transmission and distribution Cable System, wires and
appurtenances shall be located, erected and maintained so as not to
endanger or interfere with the lives of Persons, or to unnecessarily
hinder or obstruct the free use of Rights-of-Way, or other public
property.
10.5 Acquisition of Facilities
Upon Grantee’s acquisition of facilities in any Rights-of-Way, or upon the addition
or annexation to the City of any area in which Grantee owns or operates any
facility, such facilities shall immediately be subject to the terms of this Franchise.
10.6 Relocation of Facilities
10.6.1 Nothing in this Franchise shall prevent the City from constructing any
public work or improvement. The City may require Franchisee to
relocate the Cable System within the Right-of-Way when reasonably
necessary for construction, alteration, repair, or improvement of the
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right-of-way for purposes of public welfare, health, or safety. For
example, without limitation, the movement of or the request to locate
Grantee’s facilities may be needed by reason of traffic conditions, public
safety, Right-of-Way vacation, Right-of-Way construction, change or
establishment of Right-of-Way grade, installation of sewers, drains, gas
or water pipes, or any other types of structures or improvements by for
public purposes. For the avoidance of doubt, such projects shall include
any Right-of-Way improvement project, even if the project entails, in
part, related work funded and/or performed by or for a third party,
provided that such work is performed for the public benefit, but shall not
include, without limitation, any other improvements or repairs
undertaken by or for the primary benefit of third-party entities. Except as
otherwise provided by law, the costs and expenses associated with
relocations or disconnections requested pursuant to this Section 10.6
shall be borne by Grantee. Such work shall be performed at Grantee’s
expense. Nothing contained within this Franchise shall limit Grantee’s
ability to seek reimbursement for relocation costs when permitted
pursuant to RCW 35.99.060. In the case of a joint relocation project,
Grantee shall be responsible for the cost of relocating its facilities.
10.6.2 If the City determines that the project necessitates the relocation of
Grantee’s existing facilities, the City shall provide Grantee in writing with
a date by which the relocation shall be completed (the “Relocation
Date”) consistent with RCW 35.99.060(2). In calculating the Relocation
Date, the City shall consult with Grantee and consider the extent of
facilities to be relocated, the services requirements, and the construction
sequence for the relocation, within the City’s overall project construction
sequence and constraints, to safely complete the relocation, and the
City shall endeavor to provide Grantee at least sixty (60) days’ notice
prior to the Relocation Date. Grantee shall complete the relocation by
the Relocation Date, unless the City or a reviewing court establishes a
later date for completion, as described in RCW 35.99.060(2). To
provide guidance on this notice process, the City will make reasonable
efforts to involve Grantee in the predesign and design phases of any
Public Project. After receipt of the written notice containing the
Relocation Date, Grantee shall relocate such facilities to accommodate
the Public Project consistent with the timeline provided by the City and
at no charge or expense to the City. Such timeline may be extended by
a mutual agreement.
10.6.3 If Grantee fails to complete this work within the time prescribed above
and to the City’s satisfaction, the City may cause such work to be done
and bill the cost of the work to Grantee, including all costs and expenses
incurred by the City due to Grantee’s delay. In such event, the City shall
not be liable for any damage to any portion of Grantee’s Cable System.
Within thirty (30) days of receipt of an itemized list of those costs,
Grantee shall pay the City. In any event, if Grantee fails to timely
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relocate, remove, replace, modify or disconnect Grantee’s facilities and
equipment, and that delay results in any delay damage accrued by or
against the City, Grantee will be liable for all documented costs of
construction delays attributable to Grantee’s failure to timely act.
Grantee reserves the right to challenge any determination by the City of
costs for construction delays related to an alleged failure to act in
accordance with this subsection 10.6.
10.7 Movement of Cable System Facilities for Other Entities
10.7.1 If any removal, replacement, modification or disconnection of the Cable
System is required to accommodate the construction, operation or repair
of the facilities or equipment of another entity with the rights to use the
Rights-of-Way, Grantee shall, after at least thirty (30) days' advance
written notice, take action to effect the necessary changes requested by
the responsible entity. Grantee may require that the costs associated
with the removal or relocation be paid by the benefited party.
10.7.2 At the request of any Person holding a valid permit (a “Permittee”) and
upon reasonable advance notice, Grantee shall temporarily raise, lower
or remove its wires as necessary to permit the moving of a building,
vehicle, equipment or other item. Grantee may require a reasonable
deposit of the estimated payment in advance and may require that the
cost be paid by the Permittee. Such payment is an exchange between
the Grantee and the Permittee, and the City will not be the administrator
of these transactions.
10.7.3 Reimbursement of Grantee Costs
Grantee specifically reserves any rights it may have under applicable
law for reimbursement of costs related to undergrounding or relocation
of the Cable System as described in this Section 10.7, and nothing
herein shall be construed as a waiver of such rights.
10.8 Reservation of City Use of Right-of-Way
Nothing in this Franchise shall prevent the City or public utilities owned,
maintained or operated by public entities other than the City from constructing
sewers; grading, paving, repairing or altering any Right-of-Way; laying down,
repairing or removing water mains; or constructing or establishing any other
public work or improvement. All such work shall be done, insofar as practicable,
so as not to obstruct, injure or prevent the use and operation of Grantee's Cable
System but insofar as the Cable System, or any portion thereof, is required to be
relocated to accommodate the construction of the City or public utility, Grantee
shall be solely responsible for the costs associated with relocation.
10.9 Rights-of-Way Vacation
If any Rights-of-Way or portion thereof used by Grantee is vacated by the City
during the term of this Franchise, unless the City specifically reserves to Grantee
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the right to continue the use of vacated Rights-of-Way, Grantee shall, without
delay or expense to the City, remove its facilities from such Rights-of-Way, and
restore, repair or reconstruct the Rights-of-Way where such removal has
occurred. In the event of failure, neglect or refusal of Grantee, after thirty (30)
days’ notice by the City, to restore, repair or reconstruct such Rights-of-Way, the
City may do such work or cause it to be done, and the reasonable cost thereof,
as found and declared by the City, shall be paid by Grantee within thirty (30)
days of receipt of an invoice and documentation.
10.10 Removal of Discontinued Facilities
Whenever Grantee intends to discontinue using any facility within the Rights-of-
Way, Grantee shall submit to the City a complete description of the facility and
the date on which Grantee intends to discontinue using the facility. Grantee may
remove the facility or request that the City allow it to remain in place.
Notwithstanding Grantee’s request that any such facility remain in place, the City
may require Grantee to remove the facility from the Rights-of-Way or modify the
facility to protect the public health, welfare, safety and convenience, or otherwise
serve the public interest. The City may require Grantee to perform a combination
of modification and removal of the facility. Grantee shall complete such removal
or modification in accordance with a schedule set by the City. Until such time as
Grantee removes or modifies the facility as directed by the City, or until the City
accepts abandonment or the rights to and responsibility for the facility are
accepted by another Person having authority to construct and maintain such
facility, Grantee shall be responsible for the facility, as well as maintenance of the
Rights-of-Way, in the same manner and degree as if the facility were in active
use, and Grantee shall retain all liability for such facility. If Grantee abandons its
facilities, the City may choose to use such facilities for any purpose whatsoever
including, but not limited to, Access Channel purposes.
10.11 Hazardous Substances
10.11.1 Grantee shall comply with all applicable State and federal laws, statutes,
regulations and orders concerning hazardous substances within the
Rights-of-Way.
10.11.2 Upon reasonable notice to Grantee, the City may inspect Grantee’s
facilities in the Rights-of-Way to determine if any release of hazardous
substances has occurred, or may occur, from or related to Grantee’s
Cable System. In removing or modifying Grantee’s facilities as provided
in this Franchise, Grantee shall also remove all residue of hazardous
substances related thereto.
10.12 Undergrounding of Cable
10.12.1 Wiring
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(1) Unless otherwise permitted by the City, all new Cable System
construction shall be installed underground.
(2) Where electric and telephone utility wiring is installed underground
at the time of Cable System construction, or when all such wiring
is subsequently placed underground, all Cable System lines,
wiring and equipment shall also be placed underground with other
wireline service at no expense to the City. Related Cable System
equipment, such as pedestals, must be placed in accordance with
applicable City Code requirements and rules. Except as otherwise
state in Section 10.12.1(3) below, in areas where electric or
telephone utility wiring are aerial, Grantee may install aerial cable,
except when a property owner or resident requests underground
installation and agrees to bear the additional cost in excess of
aerial installation.
(3) Unless otherwise permitted by the City, Franchisee shall
underground its wireline Facilities in all new developments and
subdivisions, and any development or subdivision where utilities,
other than electrical utilities, are currently underground.
(4) Grantee shall only utilize existing poles and conduit.
(5) This Franchise does not grant, give or convey to Grantee the right
or privilege to install its facilities in any manner on specific utility
poles or equipment of the City or any other Person.
(6) Grantee and the City recognize that situations may occur in the
future where the City may desire to place its own cable or conduit
for Fiber Optic cable in trenches or bores opened by Grantee.
Therefore, if Grantee constructs, relocates or places ducts or
conduits in the Rights-of-Way it shall submit these plans to the
City in accordance with the City’s permitting process so as to
provide the City with an opportunity to request that Grantee place
additional duct or conduit and related structures necessary to
access the conduit pursuant to RCW 35.99.070. Other than
submission of plans in accordance with the City’s permitting
requirements, nothing set forth herein shall obligate Grantee to
slow the progress of any future construction of the Cable System
to accommodate the City. In addition, Grantee agrees to
cooperate with the City in any other construction by Grantee that
involves trenching or boring. The City shall be responsible for
maintaining its respective cable, conduit and Fiber Optic cable
buried in Grantee’s trenches and bores under this paragraph.
(7) The City shall not be required to obtain easements for Grantee.
(8) Grantee may participate with other providers in joint trench
projects to relocate its overhead facilities underground and
remove its overhead facilities in areas where all utilities are being
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converted to underground facilities. If funds from a Utility Local
Improvement District are provided to aerial providers to offset the
cost of undergrounding, excluding any entity operating under a
tariff, Grantee’s costs shall be proportionality paid for out of such
funds.
10.12.2 Repair and Restoration of Property
If public property is disturbed or damaged by Grantee arising out of or in
connection with the provision of Cable Service, Grantee shall restore the
property to its former condition. Rights-of-Way or other City property
shall be restored in a manner and within a timeframe approved by the
City’s Public Works Director, or his/her designee. If restoration of
Rights-of-Way or other property of the City is not satisfactorily performed
within a reasonable time, the Public Works Director, or his/her designee,
may, after prior notice to Grantee, or without notice where the
disturbance or damage may create a risk to public health, safety or
welfare, or cause delay or added expense to a public project or activity,
cause the repairs to be made at Grantee’s expense and recover the
cost of those repairs from Grantee. Within thirty (30) days of receipt of
an itemized list of those costs, including the costs of labor, materials and
equipment, Grantee shall issue payment to the City.
10.13 Codes
Grantee shall strictly adhere to City codes that do not directly conflict with the
specific provisions of this Franchise. Grantee shall arrange its lines, cables and
other appurtenances, on both public and private property, in such a manner as to
cause no unreasonable interference with the use of said public or private
property by any Person. In the event of such interference or if such construction
does not comply with City codes or the permit, the City may require the removal
or relocation of Grantee’s lines, cables and other appurtenances from the
property in question.
10.14 Tree Trimming
Upon obtaining a written permit from the City, if such a permit is required,
Grantee may prune or cause to be pruned, using proper pruning practices in
accordance with such permit, any tree in the Rights-of-Way that interferes with
the Cable System. Grantee shall be responsible for any damage caused by such
trimming and shall make every attempt to trim such trees and shrubbery in a
fashion that maintains their aesthetic appeal and the health of the tree. Grantee
may not remove any trees without the express consent from the City.
10.15 Standards
10.15.1 Grantee shall, at all times, install, maintain and use commonly accepted
methods and devices for preventing failures and accidents which are
likely to cause damage or injuries to the public. In furtherance thereof,
Grantee must comply with the City’s traffic control requirements,
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including, for example, but without limitation, the use of signal devices,
warning signs and flaggers when appropriate. All of Grantee’s
structures, cables, lines, equipment and connections in, over, under and
upon the rights-of-way and public ways or other places in the Franchise
Area, wherever situated or located, shall at all times be kept and
maintained in a safe condition.
10.15.2 Grantee must comply with all federal, State and local safety
requirements, rules, regulations, standards, laws and practices, and
employ all necessary devices as required by applicable law during
construction, operation and repair of its Cable System. By way of
illustration and not limitation, Grantee must comply with the National
Electric Code, National Electrical Safety Code and Occupational Safety
and Health Administration (OSHA) Standards.
10.15.3 All installations of equipment shall be permanent in nature, and shall not
interfere with the travel and use of public places by the public during the
construction, repair, operation or removal thereof, and shall not obstruct
or impede traffic. 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.
10.15.4 Grantee shall endeavor to maintain all equipment lines and facilities in
an orderly manner, including, but not limited to, the removal of bundles
of unused cables.
10.16 Stop Work
On notice from the City that any work is being conducted contrary to the
provisions of this Franchise, or in violation of the terms of any applicable permit,
laws, regulations, ordinances or standards, the work may immediately be
stopped by the City. The stop work order shall:
(1) Be in writing;
(2) Be given to the Person doing the work, or posted on the work site;
(3) Be sent to Grantee by mail at the address given herein;
(4) Indicate the nature of the alleged violation or unsafe condition; and
(5) Establish conditions under which work may be resumed.
Grantee shall comply immediately with any stop work order issued by the City.
10.17 Work of Contractors and Subcontractors
Grantee’s contractors and subcontractors shall be bonded in accordance with
local ordinances, regulations and requirements. Work by contractors and
subcontractors shall be subject to the same restrictions, limitations and
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conditions as if the work were performed by Grantee. Grantee shall be
responsible for all work performed by its contractors and subcontractors and
others performing work on its behalf, and shall ensure that all such work is
performed in compliance with this Franchise and other applicable law, and shall
be jointly and severally liable for all damages caused by them. It is Grantee’s
responsibility to ensure that contractors, subcontractors or other persons
performing work on Grantee’s behalf are familiar with the requirements of this
Franchise and other applicable laws governing the work performed by them.
When pulling permits, a subcontractor must clearly state their connection to
Grantee.
10.18 Pole Transfers
If Grantee leases or otherwise utilizes a pole within the Rights-of-Way owned by
a third party for attachment of Grantee’s facilities, and such third party
subsequently abandons the pole, for example by building a replacement pole,
Grantee shall remove or relocate its facilities from such pole within sixty (60)
days of notification from either the third party pole owner or the City, provided
that such other structure or place has been made available to the Grantee with
sufficient time to allow for the relocation. If Grantee requires additional time to
accomplish the removal and/or relocation, Grantee shall notify the City in writing
of the reasons for the additional time and its anticipated schedule.
10.19 Strand Mounted WiFi Facilities
10.19.1 Subject to the provisions of this Franchise and applicable safety and
electrical codes, Grantee is allowed to place strand mounted wireless
facilities on its own cables strung between existing utility poles.
10.19.2 Grantee shall comply with the following requirements:
(1) each strand mounted WiFi facility must be less than two and half
(2.5) cubic feet in volume;
(2) only one strand mounted WiFi facility is permitted per cable strung
between two poles;
(3) the WiFi strand mounted facilities shall be placed as close to the
pole as technically feasible and may not be placed more than six
(6) feet from the pole or in that portion of the Right-of-Way used
for vehicular travel;
(4) Grantee may not place an ancillary pole or ground mounted
equipment to accommodate such strand mounted WiFi facilities,
unless in the case of ground mounted equipment placed in pre-
existing equipment cabinets;
(5) the strand mounted WiFi facilities must comply with any applicable
FCC requirements related to RF emissions and interference.
Upon request, Grantee shall validate that such device meets FCC
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standards by producing documentation certified by an RF
engineer; and
(6) such strand mounted WiFi facilities must be removed if they cause
a threat to public health or safety.
10.19.3 The deployment of these strand mounted WiFi facilities shall not be
considered small cell facilities. To the extent Grantee performs work in
the Rights-of-Way associated with the installation, maintenance,
construction, repair or upgrade of these strand mounted WiFi facilities,
Grantee is required to obtain the appropriate permits consistent with
Section 10.1. Further, such strand mounted facilities must be operated
as part of the Cable System.
SECTION 11. - CABLE SYSTEM DESIGN
11.1 Cable System Specifications Prior to the Effective Date of this Franchise, the
parties acknowledge that Grantee undertook a voluntary upgrade of its Cable
System to a hybrid fiber coaxial (HFC) fiber-to-the node system architecture, with
Fiber Optic cable deployed from its Headend to nodes and tying into a coaxial
system serving Subscribers. The Cable System is capable of delivering high
quality signals that meet or exceed FCC technical quality standards regardless of
any particular manner in which the signal is transmitted. Grantee agrees to
maintain the Cable System in a manner consistent with, or in excess of these
specifications throughout the term of the Franchise.
11.2 Closed Captioning
Equipment must be installed so that all closed captioned programming received
by the Cable System shall include the closed caption signal so long as the closed
caption signal is provided consistent with FCC standards.
11.3 No Income Discrimination
Grantee's construction decisions shall be based solely upon legitimate
engineering decisions and shall not take into consideration the income level of
any particular community within the Franchise Area.
11.4 Enforceability of Design and Performance Requirements
Grantee acknowledges that the minimum Cable System design and performance
requirements set forth in this Franchise are enforceable, to the extent allowed by
law.
11.5 System Review
The City may hold a hearing to review whether or not the Cable System and the
Cable Services offered by Grantee are meeting demonstrated community needs
and interests, taking into account the cost of meeting those needs and interests.
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The parties recognize that, as of the Effective Date, the City is not permitted to
require the provision of specific Video Programming pursuant to this subsection.
SECTION 12. - TECHNICAL STANDARDS
12.1 Technical Performance
The technical performance of the Cable System shall meet or exceed all
applicable technical standards authorized or required by law, including, FCC
technical standards, as they may be amended from time to time, regardless of
the transmission technology utilized. The City shall have the full authority
permitted by applicable law to enforce compliance with these technical
standards.
12.2 Cable System Performance Testing
12.2.1 Grantee shall, at its expense, perform all tests on its Cable System
required by the FCC (including FCC required test points located within
the City) and shall maintain written records of its test results. Upon
request, all FCC required technical performance tests may be witnessed
by representatives of the City. Copies of such test results will be
provided to the City upon request.
12.2.2 All required technical performance or other Cable System tests shall be
at the expense of Grantee and may be witnessed by representatives of
the City. Upon request, Grantee will notify the City before any required
technical proof-of-performance or other testing occurs.
12.2.3 Grantee shall promptly take such measures as are necessary and
diligently continue the same until completion in order to correct any
performance deficiencies fully and to prevent their recurrence.
Grantee’s failure to correct deficiencies identified through this testing
process shall be a violation of this Franchise. Sites shall be re-tested
within five (5) days following correction until correction has been
confirmed and satisfactory results are obtained.
SECTION 13. - SERVICE EXTENSION
13.1 Service Availability
13.1.1 In general, except as otherwise provided herein, Grantee shall provide a
standard aerial installation of Cable Service within seven (7) days of a
request by any Person within the Franchise Area. For standard
underground installations scheduling shall be done within seven (7)
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days of a request for service. For purposes of this Section, a request
shall be deemed made on the date of signing a service agreement,
receipt of funds by Grantee, 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 drop 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 Subscribers, MDU Bulk Subscribers and other lawful
exceptions to uniform pricing.
13.1.2 No Customer shall be refused service arbitrarily. However, for non-
Standard Installations of service to Subscribers, or a density of less than
twenty-five (25) residences per 5280 aerial cable-bearing strand feet of
trunk or distribution cable, or sixty (60) residences per 5280
underground trench feet of trunk or distribution cable, Cable Service
may be made available on the basis of a capital contribution in aid of
construction, including cost of material, labor and easements. Grantee
may require that the payment of the capital contribution in aid of
construction be borne by such potential Subscribers be paid in advance.
For the purpose of determining the amount of capital contribution in aid
of construction to be borne by the Grantee and Customers in the area in
which service shall be expanded, the Grantee will contribute an amount
equal to the construction and other costs per mile, multiplied by a
fraction whose numerator equals the actual number of residences per
cable-bearing mile of its trunk or distribution cable and whose
denominator equals twenty-five (25) for an aerial extension or sixty (60)
for an underground extension. Customers who request service
hereunder will bear the remainder of the construction and other costs on
a pro rata basis. The Grantee may require that the payment of the
capital contribution in aid of construction borne by such potential
Customers be paid in advance.
13.1.3 Grantee shall provide Cable Service to Multiple Dwelling Units in
accordance with an agreement with the property owner or owners, this
Franchise and all applicable laws.
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SECTION 14. - STANDBY POWER AND EAS
14.1 Standby Power
Grantee shall provide standby power generating capacity at the Cable System
Headend capable of providing at least twenty-four (24) hours of emergency
operation. Grantee shall maintain standby power supplies that will supply back-
up power of at least four (4) hours duration throughout the distribution networks,
and four (4) hours duration at all nodes and hubs. In addition, throughout the
term of this Franchise, Grantee shall have a plan in place, along with all
resources necessary for implementing such plan, for dealing with outages of
more than two (2) hours. This outage plan and evidence of requisite
implementation resources shall be presented to the City no later than thirty (30)
days following receipt of a request therefore.
14.2 Emergency Alert Capability
14.2.1 In accordance with, and at the time required by, the provisions of FCC
Regulations or other federal or state requirements, as such provisions
may from time to time be amended, Emergency Alert System (“EAS”)
implementation will be accomplished in compliance with the Washington
State EAS Plan and to be in compliance with or further Homeland
Security requirements or applications.
14.2.2 Grantee shall ensure that the EAS is functioning properly at all times in
accordance with FCC regulations.
SECTION 15. - FRANCHISE BREACHES; TERMINATION OF FRANCHISE
15.1 Procedure for Remedying Franchise Violations
15.1.1 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 documented
specificity, the nature of the alleged default. Grantee shall have thirty
(30) days from the receipt of such notice to:
(1) Respond to the City in writing, contesting the City’s assertion that
a default has occurred, and requesting a hearing in accordance
with subsection 15.1.2, below;
(2) Cure the default; or
(3) Notify the City in writing that Grantee cannot cure the default
within the thirty (30) days, because of the nature of the default. In
the event the default cannot be cured within thirty (30) days,
Grantee shall promptly take all reasonable steps to cure the
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default and notify the 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 the City or
Grantee may call an informal meeting to discuss the alleged
default. In such case, if matters are not resolved at such meeting,
the City may set a hearing, in front of the hearing examiner, in
accordance with subsection 15.1.2 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.
15.1.2 If Grantee does not cure the alleged default within the cure period stated
above, or by the projected completion date under subsection 15.1.1(3),
or denies the default and requests a hearing in accordance with
subsection 15.1.1(1), or the City orders a hearing in accordance with
subsection 15.1.1(3), the City shall set a public hearing, in front of the
hearing examiner, to investigate said issues or the existence of the
alleged default. The City shall notify Grantee of the hearing in writing
and such hearing shall take place no less than fifteen (15) 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,
the City or the hearing examiner shall not unreasonably limit Grantee’s
opportunity to make a record that may be reviewed should any final
decision of the 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 sole discretion, but any
such determination shall be subject to appeal to a court of competent
jurisdiction.
15.1.3 If, after the public hearing in front of the hearing examiner, the hearing
examiner determines that a default still exists, the hearing examiner
shall order Grantee to correct or remedy the default or breach within
fourteen (14) days of the hearing examiner’s notification or within such
other reasonable timeframe as the hearing examiner shall determine. In
the event Grantee does not cure within such time as per the direction of
the hearing examiner, the hearing examiner may:
(1) Assess and collect monetary damages in accordance with this
Franchise; and
(2) Recommend to the City Council termination of this Franchise; or
(3) Recommend to the City Council to pursue any other legal or
equitable remedy available under this Franchise or applicable law.
15.1.4 The determination as to whether a violation of this Franchise has
occurred pursuant to this Section herein shall be within the sole
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discretion of the hearing examiner. Any such determination by the
hearing examiner shall be accompanied by a record, to which Grantee’s
contribution shall not be limited by the City or the hearing examiner (i.e.,
the hearing examiner shall hear any interested Persons and shall allow
Grantee an opportunity to be heard, to cross examine witnesses, to
present evidence and to make additions to the hearing record). Any
such final determination made by either the hearing examiner pursuant
to 15.1.3(1) or the City Council pursuant to 15.1.3(2) or 15.1.3(3) shall
be subject to appeal to a court of competent jurisdiction. Such appeal to
the appropriate Court shall be taken within thirty (30) days of the
issuance of the final determination. The City shall receive notice from
Grantee of any appeal concurrent with any filing to a court of competent
jurisdiction.
15.2 Alternative Remedies
15.2.1 No provision of this Franchise shall be deemed to bar the right of either
party to seek or obtain judicial relief from a violation of any provision of
the Franchise or any rule, regulation, requirement or directive
promulgated thereunder. Neither the existence of other remedies
identified in this Franchise nor the exercise thereof shall be deemed to
bar or otherwise limit the right of either party to recover monetary
damages, as allowed under applicable law, or to seek and obtain judicial
enforcement of obligations by means of specific performance, injunctive
relief or mandate, or any other remedy at law or in equity.
15.2.2 The City specifically does not, by any provision of this Franchise, waive
any right, immunity, limitation or protection (including complete damage
immunity) otherwise available to the City, its officers, officials, Boards,
commissions, agents, or employees under federal, State, or local law
including by example Section 635A of the Cable Act. Grantee shall not
have any monetary recourse against the City, or its officers, officials,
Board, commissions, authorized agents or employees for any loss,
costs, expenses or damages arising out of any provision, requirement of
this Franchise or the enforcement thereof, subject to applicable law.
15.3 Assessment of Liquidated Damages and Letter of Credit
15.3.1 Because it may be difficult to calculate the harm to the City in the event
of a breach of this Franchise by Grantee, the parties agree to liquidated
damages as a reasonable estimation of the actual damages to the City.
To the extent that the City elects to assess liquidated damages as
provided in this Franchise, such damages shall be the City’s sole and
exclusive remedy for such breach or violation and shall not exceed a
time period of one hundred eighty (180) days. Nothing in this subsection
is intended to preclude the City from exercising any other right or
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remedy with respect to a breach that continues past the time the City
stops assessing liquidated damages for such breach.
15.3.2 Prior to assessing any liquidated damages, the City shall follow the
procedure provided in Section 5.3. The first day for which liquidated
damages may be assessed, if there has been no cure after the end of
the applicable cure period, shall be the day of the violation.
15.3.3 Pursuant to the requirements outlined herein, liquidated damages shall
not exceed the following amounts: two hundred dollars ($200.00) per
day for material departure from the FCC technical performance
standards; one hundred dollars ($100.00) per day for failure to provide
the Access Channel or any equipment related thereto or funding which
is required; one hundred dollars ($100.00) per day for each material
violation of the Customer Service Standards; fifty dollars ($50.00) per
day for failure to provide reports or notices as required by this
Franchise.
15.3.4 No cost to Grantee arising from a breach or violation of the Franchise
shall be offset against any sums due the City as a tax or franchise fee
regardless of whether the combination of franchise fees, taxes and said
costs exceeds five percent (5%) of Grantee’s Gross Revenues in any
12-month period unless otherwise permitted by law.
15.3.5 Collection of Liquidated Damages
(1) The Performance Bond and letter of credit referred to in Section
5.3 may be drawn upon by the City for breach of a material
provision after notice and opportunity to cure.
(2) The City shall give Grantee written notice of any intent to withdraw
under this subsection. Within seven (7) days following receipt of
such notice, Grantee shall restore the Performance Bond and
letter of credit to the amount required under this Franchise.
Grantee’s maintenance of the Performance Bond or letter of credit
shall not be construed to excuse unfaithful performance by
Grantee or to limit the liability of Grantee to the amount of the
Performance Bond or letter of credit or otherwise to limit the City’s
recourse to any other remedy available at law or in equity.
(3) The assessment of liquidated damages does not constitute a
waiver by the City of any other right or remedy it may have under
the Franchise or applicable law, including its right to recover from
Grantee any additional damages, losses, costs and expenses that
are incurred by the City by reason of the breach of this Franchise
or to seek specific performance.
(4) Grantee’s maintenance of the security required herein or by
applicable code shall not be construed to excuse unfaithful
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performance by Grantee of this Franchise; to limit liability of
Grantee to the amount of the security; or to otherwise limit the
City’s recourse to any other remedy available at law or equity.
15.4 Revocation
15.4.1 This Franchise may be revoked and all rights and privileges rescinded if
a material breach of the Franchise is not cured pursuant to Section 15.1,
or in the event that:
(1) Grantee attempts to evade or fails to perform any material
provision of this Franchise or to practice any fraud or deceit upon
the City or Subscribers;
(2) Grantee makes a material misrepresentation of fact in the
negotiation of this Franchise;
(3) Grantee abandons the Cable System, or terminates the Cable
System’s operations;
(4) Grantee fails to restore service to the Cable System after three (3)
consecutive days of an outage or interruption in service; except in
the case of an emergency or during a force majeure occurrence,
or when approval of such outage or interruption is obtained from
the City, it being the intent that there shall be continuous operation
of the Cable System; or
(5) Grantee becomes insolvent, unable or unwilling to pay its debts,
or is adjudged bankrupt, there is an assignment for the benefit of
Grantee’s creditors, or all or part of Grantee’s Cable System is
sold under an instrument to secure a debt and is not redeemed by
Grantee within thirty (30) days from said sale.
15.4.2 Additionally, this Franchise may be revoked one hundred twenty (120)
days after the appointment of a receiver or trustee to take over and
conduct the business of Grantee (at the option of the City and subject to
applicable law) whether in a receivership, reorganization, bankruptcy or
other action or proceeding, unless directed otherwise by a court of
competent jurisdiction.
15.4.3 If there is a foreclosure or other involuntary sale of the whole or any part
of the plant, property and equipment of Grantee, the City may serve
notice of revocation on Grantee and to the purchaser at the sale, and
the rights and privileges of Grantee under this Franchise shall be
revoked thirty (30) days after service of such notice, unless:
(1) The City has approved the transfer of the Franchise, in
accordance with the procedures set forth in this Franchise and as
provided by law; and
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(2) The purchaser has covenanted and agreed with the City to
assume and be bound by all of the terms and provisions of this
Franchise.
15.5 Abandonment; Purchase of the Cable System
15.5.1 Effect of Abandonment
If the Grantee abandons its System during the Franchise term, or fails to
operate its Cable System in accordance with its duty to provide
continuous service, the City, at its option, may:
(1) operate the Cable System;
(2) designate another entity to operate the Cable System temporarily
until the Grantee restores service under conditions acceptable to
the City or until the Franchise is revoked and a new Franchisee is
selected by the City; or
(3) obtain an injunction requiring the Grantee to continue operations.
If the City is required to operate or designate another entity to
operate the Cable System, the Grantee shall reimburse the City
or its designee for all reasonable costs, expenses and damages
incurred, including reasonable attorney’s fees and costs.
15.5.2 What Constitutes Abandonment
The City shall be entitled to exercise its options and obtain any required
injunctive relief if:
(1) the Grantee fails to provide Cable Service in accordance with this
Franchise over a substantial portion of the Franchise Area for
seven (7) consecutive days, unless the City authorizes a longer
interruption of service; or
(2) the Grantee, for any period, willfully and without cause refuses to
provide Cable Service in accordance with this Franchise.
15.6 Removal
15.6.1 In the event of termination, expiration, revocation or nonrenewal of this
Franchise, and after all appeals from any judicial determination are
exhausted and final, City may order the removal of the System facilities
from the Franchise Area at Grantee's sole expense within a reasonable
period of time as determined by City. In removing its plant, structures
and equipment, Grantee shall refill, at its own expense, any excavation
that is made by it and shall leave all Rights-of-Way, public places and
private property in as good a condition as that prevailing prior to
Grantee's removal of its equipment.
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15.6.2 However, Grantee shall have no obligation to remove the Cable System
where it utilizes the system to provide other, permitted and lawful, non-
cable services and has obtained or is in the process of obtaining a
franchise or other local authority to maintain facilitates in the public
rights-of-way, or where Grantee is able to find a purchaser of the Cable
System who holds such authorization.
15.6.3 If Grantee fails to complete any required removal to the satisfaction of
City, City may cause the work to be done, and Grantee shall reimburse
City for the reasonable costs incurred within thirty (30) days after receipt
of an itemized list of City's expenses and costs, or City may recover its
expenses and costs from the security, or pursue any other judicial
remedies for the collection thereof. Any expenses incurred in the
collection by City of such obligation shall be included in the monies due
City from Grantee, including reasonable attorneys' fees, court expenses
and expenses for work conducted by City's staff or agents.
SECTION 16. - FRANCHISE TRANSFER
16.1 Transfer of Ownership or Control
16.1.1 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, consolidation or change of
control; 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.
16.1.2 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 Grantee.
The word “control” as used herein is not limited to majority stockholders
but includes actual working control in whatever manner exercised.
Every change, transfer or acquisition of control of Grantee shall make
this Franchise subject to cancellation unless and until the City shall have
consented in writing thereto.
16.1.3 The parties to the sale, change in control or transfer shall make a written
request to the City for its approval of a sale or transfer or change in
control and shall furnish all information required by law.
16.1.4 In seeking the City’s consent to any change in ownership or control, the
proposed transferee or controlling entity shall indicate whether it:
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(1) Has ever been convicted or held liable for acts involving deceit
including any violation of federal, State or local law or regulations,
or is currently under an indictment, investigation or complaint
charging such acts;
(2) Has ever had a judgment in an action for fraud, deceit, or
misrepresentation entered against the proposed transferee by any
court of competent jurisdiction;
(3) Has pending any material legal claim, lawsuit, or administrative
proceeding arising out of or involving a cable system;
(4) Is financially solvent, by submitting financial data including
financial statements that are audited by a certified public
accountant who may also be an officer of the transferee or
controlling entity, along with any other data that is lawfully
required; 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.
16.1.5 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 complete 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.
16.1.6 Within thirty (30) days of any transfer 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 or transfer of ownership or control, certified and
sworn to as correct by Grantee and the transferee or controlling entity,
and the transferee or controlling entity 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 Grantee
is not replaced by another entity, 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
any 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 change of control
involves an entity that was not an Affiliate prior to the contemplated
transaction, the City’s consent shall be required for such change in
control.
16.1.7 In reviewing a request for sale or transfer or change in control, the City
may inquire into the legal, technical and financial qualifications of the
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prospective controlling party or transferee, and Grantee shall assist the
City in so inquiring. The City may condition said sale or transfer or
change in control upon such terms and conditions as it deems
reasonably appropriate, provided, however, any such terms and
conditions so attached shall be related to the legal, technical and
financial qualifications of the prospective controlling party or transferee
and to the resolution of outstanding and unresolved issues of
noncompliance with the terms and conditions of this Franchise by
Grantee. Upon any such request under this SECTION 16. - , the City
may condition such approval upon reimbursement of the City’s
reasonable processing and review expense in connection with such
request for sale or transfer or change in control.
16.1.8 Notwithstanding anything to the contrary in this subsection, the prior
approval of the City shall not be required for any sale, assignment,
change in control or transfer of the Franchise or Cable System to an
Affiliate of Grantee, provided that the proposed assignee or transferee
must show financial responsibility as may be determined necessary by
the City and must agree in writing to comply with all of the provisions of
the Franchise including resolution of any non-compliance issues.
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.
SECTION 17. - PROHIBITED PRACTICES, LOCAL EMPLOYMENT
EFFORTS AND NOTICES
17.1 Preferential or Discriminatory Practices Prohibited
Grantee shall not discriminate in its hiring, employment or promotion decisions.
Throughout the term of this Franchise, Grantee shall fully comply with all equal
employment and non-discrimination provisions and requirements of federal, State
and local laws, and rules and regulations relating thereto. 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:
Government Affairs
Comcast of Cable Communications, LLC
900 132nd ST SW
Everett, WA 98204
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the City’s address shall be:
Aimee Kellerman
City Clerk
City of Medina, Washington
501 Evergreen Point Rd
Medina, WA 98039
SECTION 18. - MISCELLANEOUS PROVISIONS
18.1 Cumulative Rights
Subject to applicable law, all rights and remedies given to the City by this
Franchise or retained by the City herein shall be in addition to and cumulative
with any and all other rights and remedies, existing or implied, now or hereafter
available to the City, at law or in equity, and such rights and remedies shall not
be exclusive, but each and every right and remedy specifically given by this
Franchise or otherwise existing or given may be exercised from time to time and
as often and in such order as may be deemed expedient by the City and the
exercise of one or more rights or remedies shall not be deemed a waiver of the
right to exercise at the same time or thereafter any other right or remedy.
18.2 Costs to be Borne by Grantee
Grantee shall pay for all costs of publication of this Franchise, and any and all
notices prior to any public meeting or hearing provided for pursuant to this
Franchise. Such costs are incidental to the award of the Franchise and may not
be offset against Franchise Fees.
18.3 Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted
successors and assigns.
18.4 Authority to Amend
This Franchise may be amended at any time by written agreement between the
parties.
18.5 Venue
The venue for any dispute related to this Franchise shall be United States District
Court for the Western District of Washington or in King County Superior Court.
18.6 Governing Laws
This Franchise shall be governed, construed and enforced in accordance with
the laws of the State of Washington (as amended), the Cable Act as amended,
any applicable rules, regulations and orders of the FCC, as amended, and any
other applicable local, State and federal laws, rules, and regulations, as
amended.
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18.7 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.
18.8 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent
relationship between the parties, and neither party is authorized to, nor shall
either party act toward third persons or the public in any manner that would
indicate any such relationship with the other.
18.9 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.
18.10 Severability
If any Section, subsection, paragraph, term or provision of this Franchise is
determined to be illegal, invalid or unconstitutional by any court 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.
18.11 Compliance with Federal, State and Local Laws
Grantee shall comply with applicable federal, state and local laws, rules and
regulations, now existing or hereafter adopted.
18.12 Force Majeure
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 Grantee to anticipate and control, including war or riots, civil
disturbances, pandemics, floods or other natural catastrophes, labor stoppages,
slow downs, availability of materials, labor or equipment, power outages
exceeding back-up power supplies or work delays caused by waiting for utility
providers to service or monitor their utility poles to which Grantee’s Cable System
is attached.
18.13 Entire Agreement
This Franchise represents the entire understanding and agreement between the
parties hereto with respect to the subject matter hereof and supersede all prior
oral and written negotiations between the parties.
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18.14 Attorneys’ Fees
If any action or suit arises in connection with this Franchise, attorneys’ fees,
costs and expenses in connection therewith shall be paid in accordance with the
determination by the court.
18.15 Action of the City or Grantee
In any action by the City or Grantee mandated or permitted under the terms
hereof, it shall act in a reasonable, expeditious and timely manner. Furthermore,
in any instance where approval or consent is required under the terms hereof,
such approval or consent shall not be unreasonably withheld.
18.16 Acceptance
Within forty-five (45) days of receipt of an executed Franchise from the City, this
Franchise shall be accepted by Grantee by filing with the City Clerk an
unconditional, written acceptance of all of the terms, provisions and conditions of
this Franchise, in a form substantially similar to Exhibit A attached hereto. In
addition to the written acceptance, Grantee shall furnish the additional insured
endorsements and certificates of insurance required pursuant to Section 5.2 and
the Performance Bond pursuant to Section 5.3. The failure of Grantee to file
such an acceptance shall be deemed a rejection by Grantee and this Franchise
shall then be voidable at the discretion of the City.
18.17 No Third-Party Beneficiaries
There are no third party beneficiaries to this Franchise.
18.18 Termination of Prior Franchise
Grantee and the City agree that this Franchise replaces and supersedes
Ordinance 815 (the “Prior Franchise”) with respect to Grantee; provided,
however, that the grant of this Franchise shall have no effect on Grantee’s
obligations to indemnify or insure the City against acts and omissions occurring
during the period(s) that the Prior Franchise was in effect, nor shall it have any
effect upon liability to pay all Franchise Fees consistent with Washington State
statute of limitations that were due and owed under a Prior Franchise.
SECTION 19. - EFFECTIVE DATE
This Franchise, being an exercise of a power specifically delegated to the City
legislative body, is not subject to referendum, and shall take effect five (5) days after the
passage and publication of an approved summary thereof consisting of the title.
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
Page 62 of 63
APPROVED by the Medina City Council this 10th day of May, 2021.
THE CITY OF MEDINA
FILED WITH THE CITY CLERK: 5/11/2021
PASSED BY THE CITY COUNCIL: 5/10/2021
PUBLISHED: 5/14/2021
EFFECTIVE DATE: 5/19/2021
ORDINANCE NO. 998
City of Medina, WA – Comcast
2021 Cable Franchise Agreement
Page 63 of 63
EXHIBIT A
THE CITY COUNCIL
THE CITY OF MEDINA WASHINGTON
In the matter of the application of Comcast :
Cable Communications Management, LLC :
for a franchise to construct operate and : Franchise Ordinance No.: 998
maintain facilities in, upon, over, under, :
along, across and through the franchise : ACCEPTANCE
area of the City of Medina, Washington :
WHEREAS, the City Council of the City of Medina, Washington, has granted a
franchise to Comcast Cable Communications Management, LLC, its successors and
assigns, by enacting Ordinance No. 998, bearing the date of _________, 2021; and
WHEREAS, a copy of said Ordinance granting said franchise was received by
Comcast Cable Communications Management, LLC on ___________________, 2021,
from said City of Medina, King County, Washington.
NOW, THEREFORE, Comcast Cable Communications Management, LLC for
itself, its successors and assigns, hereby accepts said Ordinance and the franchise
contained therein and all the terms and conditions thereof, and files this, its written
acceptance, with the City of Medina, King County, Washington.
IN TESTIMONY WHEREOF said Comcast Cable Communications Management,
LLC has caused this written Acceptance to be executed in its name by its undersigned
__________________________________ thereunto duly authorized on this _____ day
of __________________, 2021.
ATTEST: COMCAST CABLE COMMUNICATIONS, LLC
By:_________________________________
Its: _________________________________