HomeMy WebLinkAbout2017-01-10 - Charter Communications - CableRECEIVED
FEB 15 2017
CITY OF EAST WENATCHEE
February 9, 2017
Federal Express Delivery
City of East Wenatchee
Attn: Mayor
271 9th Street NE
East Wenatchee, WA 98802
Re: Franchise Documents
Dear Mayor Lacy:
Angela Dierolf
Franchise Contract and Database Administrator
Government Relations
Direct Dial: 314-543-2419
Email: ar�e�la.�lierolfL�tliarteacum.c�nn
Enclosed please find one fully executed Franchise Agreement between the City of East
Wenatchee, WA and Falcon Video Communications, L.P,, Ilkla Charter
Communications. Also included are the insurance documents in compliance with
Section 4 of the Franchise Agreement.
If you have any questions, please do not hesitate to contact me.
Sincerely, t
Angela Dierolf
Government Relations
Enclosures
C.c. Steven Gerber
Exhibit A of Ordinance No. 2017-01
This Franchise Agreement ("Franchise") is between the CITY of EAST
WENATCHEE, WASHINGTON ("Grantor") and FALCON VIDEO COMMUNICATIONS,
L.P., locally known as CHARTER COMMUNICATIONS ("Grantee").
Grantor finds that the Grantee has substantially complied with the material terms of the current
Franchise under applicable laws, and that the financial, legal and technical ability of the Grantee
is sufficient to provide services, facilities and equipment necessary to meet the future cable -
related needs of the community.
Having afforded the public adequate notice and opportunity for comment, Grantor desires
to enter into this Franchise with the Grantee for the construction and operation of a cable system
on the terms set forth herein; and
Grantor and Grantee have complied with all federal and State -mandated procedural and
substantive requirements pertinent to this franchise renewal;
NOW, THEREFORE, Grantor and Grantee agree as follows:
SECTION i
"'
1.1 Terms. For the purpose of this franchise the following terms, phrases, words and their
derivations shall have the meaning ascribed to them in the Cable Communications Policy Act of
1984, as amended from time to time (the "Cable Act"), unless otherwise defined herein. When
not inconsistent with the context, words used in the present tense include the future, words in the
plural number include the singular number, and words in the singular number include the plural
number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be
given their common and ordinary meaning.
A. "Cable System," "Cable Service," and "Basic Cable Service" shall be defined as
set forth in the Cable Act
B. "Board/Council" shall mean the governing body of the Grantor.
C. "Cable Act" shall mean the Cable Communication Policy Act of 1984, as
amended, 47 U.S.C. §§ 521, et. seq.
D. "FCC" shall mean the Federal Communications Commission and any successor
governmental entity thereto.
E. "Franchise" shall mean the non-exclusive rights granted pursuant to this Franchise
to construct operate and maintain a Cable System along the public ways within all
or a specified area in the Service Area.
F. "Gross Revenue" means any revenue, as determined in accordance with generally
accepted accounting principles, received by the Grantee from the operation of the
Franchise Agreement
Page 1 of 14
Exhibit A of Ordinance No. 2017-01
Cable System to provide Cable Services in the Service Area, provided, however,
that such phrase shall not include: (1) any taxes, fees or assessments collected by
the Grantee from Subscribers for pass -through to a government agency, including,
without limitation, the FCC user fee, the franchise fee, or any sales or utility
taxes; (2) unrecovered bad debt; (3) credits, refunds and deposits paid to
Subscribers; and (4) any exclusions available under applicable State law.
G. "Person" shall mean an individual, partnership, association, organization,
corporation, trust or governmental entity.
H. "Service Area" shall mean the geographic boundaries of the Franchise Authority,
and shall include any additions thereto by annexation or other legal means,
subject to the exception in subsection 6.1 hereto.
"State" shall mean the State of WASHINGTON.
"Street" shall include each of the following located within the Service Area:
public streets, roadways, highways, bridges, land paths, boulevards, avenues,
lanes, alleys, sidewalks, circles, drives, easements, rights of way and similar
public ways and extensions and additions thereto, including but not limited to
public utility easements, dedicated utility strips, or rights -of -way dedicated for
compatible uses now or hereafter held by the Grantor in the Service Area, which
shall entitle the Grantee to the use thereof for the purpose of installing, operating,
repairing and maintaining the Cable System.
K. "Subscriber" shall mean any Person lawfully receiving Cable Service from the
Grantee.
SECTION 2
Grant of Franchise
2.1 Grant. The Grantor grants to the Grantee a nonexclusive Franchise which authorizes the
Grantee to erect, construct, operate and maintain in, upon, along, across, above, over and under
the Streets, now in existence and as may be created or established during its terms; any poles,
wires, cable, underground conduits, manholes, and other conductors and fixtures necessary for
the maintenance and operation of a Cable System. Nothing in this Franchise shall be construed
to prohibit the Grantee from offering any service over its Cable System that is not prohibited by
federal, State or local law.
2.2 'Terns. The Franchise and the rights, privileges and authority hereby granted shall be for
an initial term of seven (7) years, commencing on the Effective Date of this Franchise as set forth
in Section 14.10. This Franchise will be automatically extended for an additional term of five (5)
years from the expiration date as set forth in Section 14.10, unless either party notifies the other
in writing of its desire to not exercise this automatic extension (and enter renewal negotiations
under the Cable Act) at least three (3) years before the expiration of this Franchise. If such a
notice is given, the parties will then proceed under the federal Cable Act renewal procedures.
Exhibit A of Ordinance No. 2017-01
2.3 Police Powers and Conflicts with Franchise. The Grantee agrees to comply with the
terms of any generally applicable local ordinance necessary to the safety, health, and welfare of
the public which is lawfully adopted pursuant to the Grantor's general police power. This
Franchise is a contract and except as to those changes which are the result of the Grantor's
lawful exercise of its general police power, the Grantor may not take any unilateral action which
materially changes the explicit mutual promises in this contract. Any changes to this Franchise
must be made in writing signed by the Grantee and the Grantor. In the event of any conflict
between this Franchise and any Grantor ordinance or regulation that has the effect of limiting the
benefits or expanding the obligations of the Grantee that are granted by this Franchise, this
Franchise will prevail, except as to those ordinances and regulations which are the result of the
Grantor's lawful exercise of its general police power.
2.4 Cable System Franchise Required. No Cable System shall be allowed to occupy or use
the streets or public rights -of -way of the Service Area or be allowed to operate without a Cable
System Franchise.
•
3.1 Procedures for Renewal. The Grantor and the Grantee agree that any proceedings
undertaken by the Grantor that relate to the renewal of the Grantee's Franchise shall be governed
by and comply with the provisions of Section 626 of the Cable Act, or any such successor
statute.
SECTION4
", ,,
4.1 Indemnification. The Grantee shall, by acceptance of the Franchise granted herein,
defend the Grantor , its officers, boards, commissions, agents, and employees for all claims for
injury to any Person or property caused by the negligence of Grantee in the construction or
operation of the Cable System and in the event of a determination of liability shall indemnify and
hold Grantor, its officers, boards, commissions, agents, and employees harmless from any and all
liabilities, claims, demands, or judgments growing out of any injury to any Person or property as
a result of the negligence of Grantee arising out of the construction, repair, extension,
maintenance, operation or removal of its wires, poles or other equipment of any kind or character
used in connection with the operation of the Cable System, provided that the Grantor shall give
the Grantee written notice of its obligation to indemnify the Grantor within ten (10) days of
receipt of a claim or action pursuant to this section. In the event any such claim arises, the
Grantor shall tender the defense thereof to the Grantee and the Grantee shall have the right to
defend, settle or compromise any claims arising hereunder and the Grantor shall cooperate fully
herein. If the Grantor determined in good faith that its interests cannot be represented by the
Grantee, the Grantee shall be excused from any obligation to represent the Grantor.
Notwithstanding the foregoing, the Grantee shall not be obligated to indemnify the Grantor for
any damages, liability or claims resulting from the willful misconduct or negligence of the
Grantor or for the Grantor's use of the Cable System.
4.2 Insurance.
Exhibit A of Ordinance No. 2017-01
A. The Grantee shall maintain throughout the term of the Franchise insurance in
amounts at least as follows:
Workers' Compensation
Commercial General Liability
Statutory Limits
$2,000,000 per occurrence,
Combined Single Limit (C.S.L.)
$5,000,000 General Aggregate
Auto Liability including coverage on $2,000,000 per occurrence C.S.L.
all owned, non -owned hired autos
Umbrella Liability
$1,000,000 per occurrence C.S.L.
S. The Grantor shall be added as an additional insured, arising out of work
performed by Charter, to the above Commercial General Liability, Auto Liability
and Umbrella Liability insurance coverage.
C. The Grantee shall furnish the Grantor with current certificates of insurance
evidencing such coverage upon request.
SECTION 5
Service Obligations
5.1 No Discrimination. Grantee shall not deny service, deny access, or otherwise
discriminate against Subscribers, channel users, or general citizens on the basis of applicable
law, specifically RCW 49.06.030.
5.2 Privacy. The Grantee shall fully comply with the privacy rights of Subscribers as
contained in Cable Act Section 631 (47 U.S.C. § 551).
SECTION 6
Service Availability
6.1 Service Area. The Grantee shall continue to provide Cable Service to all residences
within the Service Area where Grantee currently provides Cable Service. Grantee shall have the
right, but not the obligation, to extend the Cable System into any other portion of the Service
Area, including annexed areas. Cable Service offered to Subscribers pursuant to this Franchise
shall be conditioned upon Grantee having legal access to any such Subscriber's dwelling unit or
other units wherein such Cable Service is provided.
6.2 New Development Underground. In cases of new construction or property
development where utilities are to be placed underground, the Grantor agrees to require as a
condition of issuing a permit for open trenching to any developer or property owner that such
developer or property owner give Grantee at least thirty (30) days prior written notice of such
construction or development, and of the particular dates on which open trenching will be
Exhibit A of Ordinance No. 2017-01
available for Grantee's installation of conduit, pedestals and/or vaults, and laterals to be provided
at Grantee's expense. Grantee shall also provide specifications as needed for trenching. Costs of
trenching and easements required to bring service to the development shall be borne by the
developer or property owner; except that if Grantee fails to install its conduit, pedestals and/or
vaults, and laterals within five (5) working days of the date the trenches are available, as
designated in the written notice given by the developer or property owner, then should the
trenches be closed after the five-day period, the cost of new trenching is to be borne by Grantee.
6.3 Annexation. The Grantor shall promptly provide written notice to the Grantee of its
annexation of any territory which is being provided Cable Service by the Grantee or its affiliates.
Such annexed area will be subject to the provisions of this Franchise upon sixty (60) days
`written notice from the Grantor, subject to the conditions set forth below and Section 6.1 above.
The Grantor shall also notify Grantee in writing of all new street address assignments or changes
within the Service Area. Grantee shall within ninety (90) days after receipt of the annexation
notice, pay the Grantor franchise fees on revenue received from the operation of the Cable
System to provide Cable Services in any area annexed by the Grantor if the Grantor has provided
a written annexation notice that includes the addresses that will be moved into the Service Area
in an Excel format or in a format that will allow Grantee to change its billing system. If the
annexation notice does not include the addresses that will be moved into the Service Area,
Grantee shall pay franchise fees within ninety (90) days after it receives the annexed addresses as
set forth above. All notices due under this section shall be sent by certified mail, return receipt
requested to the addresses set forth in Section 14.5 with a copy to the Director of Government
Relations. In any audit of franchise fees due under this Franchise, Grantee shall not be liable for
franchise fees on annexed areas unless and until Grantee has received notification and
information that meets the standards set forth in this section.
SECTION 7
Construction and Technical Standards
7.1 Compliance with Codes. All construction practices and installation of equipment shall
be done in accordance with all applicable sections of the National Electric Safety Code.
7.2 Construction Standards and Requirements. All of the Grantee's plant and equipment,
including but not limited to the antenna site, head end and distribution system, towers, house
connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be
installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained
and operated in accordance with good engineering practices and performed by experienced
maintenance and construction personnel.
7.3 Underground Construction. Grantee shall comply with generally applicable non-
discriminatory local ordinances related to right-of-way construction. Grantee shall restore the public
way to pre -construction condition or better. Grantee shall restore all landscaping as close to
preconstruction condition as possible. Grantee agrees to pay all costs and expenditures required on
Rights -of -Way as a result of settling, subsidence, or any other need for repairs or maintenance
resulting from excavations made by Grantee for necessary trench patch maintenance until the next
paving job. To the extent required of other users of the public rights -of -way in the City and applied
on a non-discriminatory basis, favorable weather conditions permitting, Grantee shall repair Rights-
Exhibit A of Ordinance No. 2017-01
of -Way as a result of settling, subsidence, or other needed repairs or maintenance resulting from
excavations made by the Grantee upon 72 hours' notice excluding weekends and holidays. If Grantee
fails to undertake such repairs as herein provided, the City may perform the repairs at Grantee's
expense.
7.4 Safety. The Grantee shall at all times employ ordinary care and shall use commonly
accepted methods and devices preventing failures and accidents which are likely to cause
damage.
7.5 Network Technical Requirements. The Cable System shall be designed, constructed
and operated so as to meet those technical standards adopted by the FCC relating to Cable
Systems contained in part 76 of the FCC's rules and regulations as may be amended from time to
time, regardless of the transmission technology utilized.
7.6 Performance Monitoring. Grantee shall test the Cable System consistent with the FCC
regulations.
SECTION 8
Conditions on Street Occupancy
8.1 General Conditions. Grantee shall have the right to utilize existing poles, conduits and
other facilities whenever possible, and shall not construct or install any new, different, or
additional poles, conduits, or other facilities on public property without obtaining all legally
required permits of the Grantor.
8.2 Underground Construction. The facilities of the Grantee shall be installed underground
in those Service Areas where existing telephone and electric services are both underground at the
time of system construction. In areas where either telephone or electric utility facilities are
installed aerially at the time of system construction, the Grantee may install its facilities aerially
with the understanding that at such time as the existing aerial facilities are required to be placed
underground by the Grantor, the Grantee shall likewise place its facilities underground. In the
event that any telephone or electric utilities are reimbursed by the Grantor or any agency thereof
for the placement of cable underground or the movement of cable, Grantee shall be reimbursed
upon the same terms and conditions as any telephone, electric or other utilities.
8.3 Construction Codes and Permits. Grantee shall obtain all legally required permits
before commencing any work requiring a permit, including the opening or disturbance of any
Street within the Service Area. The Grantor shall cooperate with the Grantee in granting any
permits required, providing such grant and subsequent construction by the Grantee shall not
unduly interfere with the use of such Streets. The Grantee shall adhere to all building and zoning
codes currently or hereafter applicable to construction, operation or maintenance of the Cable
System in the Service Area, provided that such codes are of general applicability and such codes
are uniformly and consistently applied by the Grantor as to other public utility companies and
other entities operating in the Service Area. Notwithstanding the above, the Grantee may set off
any administrative permit fees or other fees required by the Grantor related to the Grantee's use
of Grantor rights -of -way against the franchise fee payments required under Section 10.1 of this
Franchise.
Exhibit A of Ordinance No. 2017-01
8.4 System Construction. All transmission lines, equipment and structures shall be so
installed and located as to cause minimum interference with the rights and reasonable
convenience of property owners and at all times shall be kept and maintained in a safe, adequate
and substantial condition, and in good order and repair. The Grantee shall, at all times, employ
ordinary care and use commonly accepted methods and devices for preventing failures and
accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable
barricades, flags, lights, flares or other devices shall be used at such times and places as are
reasonably required for the safety of all members of the public. Any poles or other fixtures
placed in any public way by the Grantee shall be placed in such a manner as not to interfere with
the usual travel on such public way.
8.5 Restoration of Public Ways. Whenever necessary, after construction or maintenance of
the Cable System within a right-of-way, Grantee shall, without delay, and at Grantee's sole
expense, remove all debris and restore the right-of-way disturbed by Grantee as nearly as
possible to as good or better condition as it was in before the work began. Grantee shall replace
any property corner monuments, survey reference or equipment that were disturbed or destroyed
by Grantee's work in a right-of-way. Such restoration shall be done in a manner consistent with
applicable codes and laws and to Grantor's satisfaction and specifications where applicable.
8.6 Removal in Emergency. Whenever, in case of fire or other disaster, it becomes
necessary in the judgment of the Grantor to remove any of the Grantee's facilities, no charge
shall be made by the Grantee against the Grantor for restoration and repair, unless such acts
amount to gross negligence by the Grantor.
8.7 Tree Trimming. Grantee or its designee shall have the authority to trim trees on public
property at its own expense as may be necessary to protect its wires and facilities.
8.8 Relocation for the Grantor. The Grantee shall, upon receipt of reasonable advance
written notice, to be not less than ten (10) business days, protect, support, temporarily
disconnect, relocate, or remove any property of Grantee when lawfully required by the Grantor
pursuant to its police powers. Grantee shall be responsible for any costs associated with these
obligations to the same extent all other users of the Grantor rights -of -way are responsible for the
costs related to the relocation of their facilities.
8.9 Relocation for a Third Party. The Grantee shall, on the request of any Person holding a
lawful permit issued by the Grantor, protect, support, raise, lower, temporarily disconnect,
relocate in or remove from the Street as necessary any property of the Grantee, provided that the
expense of such is paid by any such Person benefiting from the relocation and the Grantee is give
reasonable advance written notice to prepare for such changes. The Grantee may require such
payment in advance. For purposes of this subsection, "reasonable advance written notice" shall
be no less than ten (10) business days in the event of a temporary relocation and no less than one
hundred twenty (120) days for a permanent relocation.
8.10 Reimbursement of Costs. If funds are available to any Person using the Streets for the
purpose of defraying the cost of any of the foregoing, the Grantor shall reimburse the Grantee in
the same manner in which other Persons affected by the requirement are reimbursed. If the
Exhibit A of Ordinance No. 2017-01
funds are controlled by another governmental entity, the Grantor shall make application for such
funds on behalf of the Grantee.
8.11 Emergency Use. If the Grantee provides an Emergency Alert System ("EAS"), then the
Grantor shall permit only appropriately trained and authorized Persons to operate the EAS
equipment and shall take reasonable precautions to prevent any use of the Grantee's Cable
System in any manner that results in inappropriate use thereof, or any loss or damage to the
Cable System. The Grantor shall hold the Grantee, its employees, officers and assigns harmless
from any claims or costs arising out of use of the EAS, including, but not limited to, reasonable
attorneys' fees and costs.
SECTION 9
Service and Rates
9.1 Phone Service. The Grantee shall maintain a toll -free telephone number and a phone
service operated such that complaints and requests for repairs or adjustments may be received at
any time.
9.2 Notification of Service Procedures. The Grantee shall furnish each Subscriber at the
time service is installed, written instructions that clearly set forth information concerning the
procedures for making inquiries or complaints, including the Grantee's name, address and local
telephone number. Grantee shall give the Grantor thirty (30) days prior notice of any rate
increases, channel lineup or other substantive service changes.
9.3 Date Regulation. Grantor shall have the right to exercise rate regulation to the extent
authorized by law, or to refrain from exercising such regulation for any period of time, at the sole
discretion of the Grantor. If and when exercising rate regulation, the Grantor shall abide by the
terms and conditions set forth by the FCC.
9.4 Continuity of Service. It shall be the right of all Subscribers to continue receiving Cable
Service insofar as their financial and other obligations to the Grantee are honored, and subject to
Grantee's rights under Section 14.1 of this Franchise.
9.5 Federal Rules and Regulations. Grantee shall comply with all FCC rules and
regulations, as amended from time to time, related to customer service standards.
SECTION 10
Franchise Fee
10.1 Amount of Fee. Grantee shall pay to the Grantor an annual franchise fee in an amount
equal to five percent (5%) of the annual Gross Revenue. Such payment shall be in addition to
taxes of general applicability owed to the Grantor by the Grantee that are not included as
franchise fees under federal law. Franchise fees may be passed through to Subscribers as a line
item on Subscriber bills or otherwise as Grantee chooses, consistent with federal law.
A. The parties acknowledge that, at present, applicable federal law limits City to
collection of a maximum franchise fee of five percent (5%) of Gross Revenue in any
Exhibit A of Ordinance No. 2017-01
twelve month period. In the event that at any time during the duration of this
Franchise applicable federal law changes the maximum allowable Franchise Fee, to
be collected in any twelve month period, then this Franchise shall be amended by the
parties with sixty days written notice by either party to the other party. The City
agrees that all Cable operators in the Franchise Area over which the City has
jurisdiction will be treated in an equivalent manner.
10.2 Payment of Fee. Payment of the fee due the Grantor shall be made on a quarterly basis,
within forty-five (45) days of the close of each calendar quarter and transmitted by electronic
funds transfer to a bank account designated by Grantor. The payment period and the collection
of the franchise fees that are to be paid to the Grantor pursuant to the Franchise shall commence
sixty (60) days after the Effective Date of the Franchise as set forth in Section 14.10. In the
event of a dispute, the Grantor, if it so requests, shall be furnished a statement of said payment,
reflecting the Gross Revenues and the applicable charges.
10.3 Accord and Satisfaction. No acceptance of any payment by the Grantor shall be
construed as a release or as an accord and satisfaction of any claim the Grantor may have for
additional sums payable as a franchise fee under this Franchise.
10.4 Limitation on Recovery. The period of limitation for recovery of any franchise fee
payable hereunder shall be three (3) years from the date on which payment by the Grantee was
due. If any Franchise payment or recomputed payment is not made on or before the dates
specified herein, Grantee shall pay an interest charge, computed from the last day of the fiscal
year in which payment was due, at the annual rate of one (1%) percent over the prime interest
rate.
SECTION 11
Transfer of Franchise
11.1 Franchise Transfer. The Franchise granted hereunder shall not be assigned, other than
by operation of law or to an entity controlling, controlled by, or under common control with the
Grantee, without the prior consent of the Grantor, such consent not to be unreasonably withheld
or delayed. No such consent shall be required, however, for a transfer in trust, by mortgage, by
other hypothecation, or by assignment of any rights, title, or interest of the Grantee in the
Franchise or Cable System to secure indebtedness. Within thirty (30) days of receiving a request
for transfer, the Grantor shall notify the Grantee in writing of any additional information it
reasonably requires to determine the legal, financial and technical qualifications of the transferee.
If the Grantor has not taken action on the Grantee's request for transfer within one hundred
twenty (120) days after receiving such request, consent by the Grantor shall be deemed given.
SECTION 12
12.1 Reports Required. The Grantee's schedule of charges for regular Subscriber service, its
policy regarding the processing of Subscriber complaints, delinquent Subscriber disconnect and
reconnect procedures and any other terms and conditions adopted as the Grantee's policy in
connection with its Subscribers shall be filed with the Grantor upon request.
Exhibit A of Ordinance No. 2017-01
12.2 Records Required.
The Grantee shall at all times maintain:
A. A record of all written complaints received regarding interruptions or degradation
of Cable Service, which record shall be maintained for one (1) year.
B. A full and complete set of plans, records and strand maps showing the location of
the Cable System.
12.3 Inspection of Records. Grantee shall permit any duly authorized representative of the
Grantor, upon receipt of advance written notice, to examine during normal business hours and on
a non -disruptive basis any and all of Grantee's records maintained by Grantee as is reasonably
necessary to ensure Grantee's compliance with the Franchise. Such notice shall specifically
reference the subsection of the Franchise that is under review so that the Grantee may organize
the necessary books and records for easy access by the Grantor. The Grantee shall not be
required to maintain any books and records for Franchise compliance purposes longer than three
(3) years, except for service complaints, which shall be kept for one (1) year as specified above.
The Grantee shall not be required to provide Subscriber information in violation of Section 631
of the Cable Act. The Grantor agrees to treat as confidential any books, records or maps that
constitute proprietary or confidential information to the extent Grantee make the Grantor aware
of such confidentiality. If the Grantor believes it must release any such confidential books or
records in the course of enforcing this Franchise, or for any other reason, it shall advise Grantee
in advance so that Grantee may take appropriate steps to protect its interests. Until otherwise
ordered by a court or agency of competent jurisdiction, the Grantor agrees that, to the extent
permitted by State and federal law, it shall deny access to any of Grantee's books and records
marked confidential, as set forth above, to any Person.
12.4 Grantee will comply with RCW Chapter 19.122 and the rules of the Washington Utility
Notification Center (Call 811 — Call Before You Dig) regarding facility location.
SECTION 13
Enforcement or Revocation
13.1 Notice of Violation. If the Grantor believes that the Grantee has not complied with the
terms of the Franchise, the Grantor shall first informally discuss the matter with Grantee. If
these discussions do not lead to resolution of the problem, the Grantor shall notify the Grantee in
writing of the exact nature of the alleged noncompliance (the "Violation Notice").
13.2 Grantee's Right to Cure or Respond. The Grantee shall have thirty (30) days from
receipt of the Violation Notice to (i) respond to the Grantor, contesting the assertion of
noncompliance, or (ii) to cure such default, or (iii) if, by the nature of default, such default
cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default
and notify the Grantor of the steps being taken and the projected date that they will be
completed.
13.3 Public hearing. If the Grantee fails to respond to the Violation Notice received from the
Grantor, or if the default is not remedied within the cure period set forth above, the Board shall
Exhibit A of Ordinance No. 2017-01
schedule a public hearing if it intends to continue its investigation into the default. The Grantor
shall provide the Grantee at least twenty (20) days prior written notice of such hearing, which
specifies the time, place and purpose of such hearing, notice of which shall be published by the
Clerk of the Grantor in a newspaper of general circulation within the Grantor in accordance with
subsection 14.5 hereof. The Grantee shall have the right to present evidence and to question
witnesses. The Grantor shall determine if the Grantee has committed a violation and shall make
written findings of fact relative to its determination. If a violation is found, the Grantee may
petition for reconsideration before any competent tribunal having jurisdiction over such matters.
13.4 Enforcement. Subject to applicable federal and State law, in the event the Grantor, after
the hearing set forth in subsection 13.3 above, determines that the Grantee is in default of any
provision of the Franchise, the Grantor may:
A. Seek specific performance of any provision, which reasonably lends itself to such
remedy, as an alternative to damages; or
B. Commence an action at law for monetary damages or seek other equitable relief;
or
C. In the case of a substantial default of a material provision of the Franchise, seek to
revoke the Franchise itself in accordance with subsection 13.5 below.
13.5 Revocation.
A. Prior to revocation or termination of the Franchise, the Grantor shall give written
notice to the Grantee of its intent to revoke the Franchise on the basis of a pattern
of noncompliance 'by the Grantee, including one or more instances of substantial
noncompliance with a material provision of the Franchise. The notice shall set
forth the exact nature of the noncompliance. The Grantee shall have sixty (60)
days from such notice to either object in writing and to state its reasons for such
objection and provide any explanation or to cure the alleged noncompliance. If
the Grantor has not received a satisfactory response from Grantee, it may then
seek to revoke the Franchise at a public hearing. The Grantee shall be given at
least thirty (30) days prior written notice of such public hearing, specifying the
time and place of such hearing and stating its intent to revoke the Franchise.
B. At the hearing, the Board shall give the Grantee an opportunity to state its
position on the matter, present evidence and question witnesses, after which it
shall determine whether or not the Franchise shall be revoked. The public hearing
shall be on the record and a written transcript shall be made available to the
Grantee within ten (10) business days. The decision of the Board shall be made in
writing and shall be delivered to the Grantee. The Grantee may appeal such
determination to an appropriate court, which shall have the power to review the
decision of the Board de novo. The Grantee may continue to operate the Cable
System until all legal appeals procedures have been exhausted.
C. Notwithstanding the above provisions, the Grantee does not waive any of its
rights under federal law or regulation.
Exhibit A of Ordinance No. 2017-01
D. Upon revocation of the Franchise, Grantee may remove the Cable System from
the Streets of the Grantor, or abandon the Cable System in place.
SECTION 14
Miscellaneous Provisions
14.1 Force Majeure. The Grantee shall not be held in default under, or in noncompliance
with the provisions of the Franchise, nor suffer any enforcement or penalty relating to
noncompliance or default, where such noncompliance or alleged defaults occurred or were
caused by circumstances reasonably beyond the ability of the Grantee to anticipate and control.
This provision includes, but is not limited to, severe or unusual weather conditions, fire, flood, or
other acts of God, strikes, work delays caused by failure of utility providers to service, maintain
or monitor their utility poles to which Grantee's Cable System is attached, as well as
unavailability of materials and/or qualified labor to perform the work necessary.
14.2 Minor Violations. Furthermore, the parties hereby agree that it is not the Grantor's
intention to subject the Grantee to penalties, fines, forfeitures or revocation of the Franchise for
violations of the Franchise where the violation was a good faith error that resulted in no or
minimal negative impact on the Subscribers within the Service Area, or where strict performance
would result in practical difficulties and hardship to the Grantee which outweighs the benefit to
be derived by the Grantor and/or Subscribers.
14.3 Action of Parties. In any action by the Grantor or the Grantee that is mandated or
permitted under the terms hereof, such party 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.
14.4 Equal Protection. If any other provider of cable services or video services (without
regard to the technology used to deliver such services) is Iawfully authorized by the Grantor or
by any other State or federal governmental entity to provide such services using facilities located
wholly or partly in the public rights -of -way of the Grantor, the Grantor shall within thirty (30)
days of a written request from Grantee, modify this Franchise to insure that the obligations
applicable to Grantee are no more burdensome than those imposed on the new competing
provider. If the Grantor fails to make modifications consistent with this requirement, Grantee's
Franchise shall be deemed so modified thirty (30) days after the Grantee's initial written notice.
As an alternative to the Franchise modification request, the Grantee shall have the right and may
choose to have this Franchise with the Grantor be deemed expired thirty (30) days after written
notice to the Grantor. Nothing in this Franchise shall impair the right of the Grantee to terminate
this Franchise and, at Grantee's option, negotiate a renewal or replacement franchise, license,
consent, certificate or other authorization with any appropriate government entity.
Grantor: City of East Wenatchee
Attn: Mayor
271 9ch Street NE
East Wenatchee, WA 98802
Email:
Exhibit A of Ordinance No. 2017-01
Grantee: Charter Communications
Director of Government Affairs
222 NE Park Plaza Dr., Ste 231
Vancouver, VGA 98684
Email: marian.iacksonAcharter.com
Copy to: Charter Communications
Attn: Vice President, Government Affairs
12405 Powerscourt Drive
St. Louis, MO 63131
14.5 Notices. Unless otherwise provided by federal, State or local law, all notices, reports or
demands pursuant to this Franchise shall be in writing and shall be deemed to be sufficiently
given upon delivery to a Person at the address set forth below, or by U.S. certified mail, return
receipt requested, nationally or internationally recognized courier service such as Federal
Express or electronic mail communication to the designated electronic mail address provided
below. Grantee shall provide thirty (30) days' written notice of any changes in rates,
programming services or channel positions using any reasonable written means. As set forth
above, notice served upon the Grantor shall be delivered or sent to:
14.6 Public Notice. Minimum public notice of any public meeting relating to this Franchise
or any such grant of additional franchises, licenses, consents, certificates, authorizations, or
exemptions by the Grantor to any other Person(s) to provide Cable Services, video services, or
other television services utilizing any system or technology requiring use of the public rights of
way shall be by publication at least once in a newspaper of general circulation in the area at least
ten (10) days prior to the meeting and a posting at the administrative buildings of the Grantor.
14.6.1 Grantor shall provide written notice to Grantee within ten (10) days of
Grantor's receipt from any other Person(s) of an application or request for a franchise(s),
license(s), consent(s), certificate(s), authorization(s), or exemption(s) to provide Cable Services,
video services, or other television services utilizing any system or technology requiring use of
the public rights of way. Any public hearings to consider such application or request shall have
the same notice requirement as outlined in Paragraph 14.6 above.
14.7 Severability. If any section, subsection, sentence, clause, phrase, or portion of this
Franchise is, for any reason, held invalid or unconstitutional by any court of competent
jurisdiction, such portion shall be deemed a separate, distinct and independent provision and
such holding shall not affect the validity of the remaining portions of this Franchise.
14.8 Entire Agreement. This Franchise and any Exhibits hereto constitute the entire
agreement between Grantee and the Grantor and they supersede all prior or contemporaneous
agreements, representations or understandings (whether written or oral) of the parties regarding
the subject matter hereof.
14.9 Administration of Franchise. This Franchise is a contract and neither party may take
any unilateral action that materially changes the explicit mutual promises and covenants
contained herein. Any changes, modifications or amendments to this Franchise must be made in
Exhibit A of Ordinance No. 2017-01
writing, signed by the Grantor and the Grantee. Except as provided in Section 13.5, any
determination by either party regarding the interpretation or enforcement of this Franchise shall
be subject to de nova judicial review, as provided by applicable law.
14.10 Effective Date. The Franchise granted herein will take effect and be in full force froze
such elate of acceptance by Grantee recorded on the signature page of this Franchise ("Effective
Date"). This Franchise shall expire seven years from the Effective Date, unless extended in
accordance with Section 2.2 of the Franchise or by the mutual of the parties. If any fee or grant
that is passed through. to Subscribers is required by this Franchise, other than the franchise fee,
such fee or grant shall go into effect sixty (60) days after the Effective Bate of this Franchise.
Considered and approved this Zo_ day of , 2017.
CITY OF EAST WENATCHEE
ayor Steven C cy
Accepted thisay of [ . _20_, subject to applicable federal. State
and local law.
Falcon Video Communications. L.P.
By: Charter Communications VII, LLC, its General Partner
By: Charter Communications, Inc., its Manager
Signature: &L C.
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