2040_00001ORDINANCE NO.2040
AN ORDINANCE GRANTING A FRANCHISE TO ARTESIAN DIRECT HOLDING
CORPORATION TO OPERATE AND MAINTAIN A CABLE SYSTEM IN THE CITY OF
MOSES LAKE AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF
FRANCHISE.
THE CITY COUNCIL OF THE CITY OF MOSESLAKE,WASHINGTON DOESORDAINASFOLLOWS:
Section 1.Findings.Artesian Direct Holding Corporation,("Artesian"or "Grantee")desires to operateOacablesystemintherights-of-way of the City of Moses Lake.Negotiations between Artesian and the City
have been completed and the franchise process followed in accordance with theguidelinesestablished by
applicable law.As a condition of receiving thisfranchise,Grantee has agreed to abide by the City's current
and future lawful policies,ordinances and regulations regarding infrastructure usage,street-cuts,andrights-of-way.
Section 2.Adoption.This ordinance shall be known as the Artesian Direct Holding Corporation2001Franchiseandshallprovideasfollows.
TABLE OF CONTENTS
SECTION 1.DEFINITIONS
SECTION 2.GRANT OF FRANCHISE
2.1 Grant
2.2 Use of Public Streets and Ways
2.3 Duration
2.4 Effective Date
2.5 Franchise Nonexclusvie
2.6 Grant of Other Franchises
2.7 Police Powers
2.8 Relations to Other Provisions of Law
2.9 Effect of Acceptance
SECTION 3.FRANCHISE FEE AND FINANCIALCONTROLS
3.1 Franchise Fee3.2 Payments3.3 Acceptance ofPayment and Recomputation
O 3.4 QuarterlyFranchise Fee Reports3.5 Annual Franchise Fee Reports3.6 Interest on Late Payments
3.7 Alternative Remedies3.8 Additional CommitmentsNot Franchise Fees
3.9 Costs of Publication
3.10 Tax Liability
3.11 Payment on Termination
SECTION 4.ADMINISTRATIONAND REGULATION
4.1 Authority
4.2 Rates and Charges
4.3 Rate Discrimination
4.4 Filingof Rates and Charges
4.5 Time Limits Strictly Construed
4.6 Performance Evaluation Sessions
SECTION 5.FINANCIALAND INDEMNIFICATIONREQUIREMENTS
5.1 Indemnification
5.2 Letter of Credit
SECTION 6.CUSTOMER SERVICE6.1 Customer ServiceStandards
6.2 SubscriberPrivacy
6.3 Local Office6.4 Emergency Override
SECTION 7.REPORTS AND RECORDS
7.1 Open Records
7.2 Confidentiality
7.3 Complaint File and Reports
7.4 Inspection of Facilities7.5 False Statements
SECTION 8.PROGRAMMING
8.1 Broad Programming Categories
8.2 Parental ControlDevice
8.3 Leased Access Channels8.4 Continuity ofService8.5 Service for Disabled
8.6 Community Programming Needs
8.7 Category Agreement
SECTION 9.TEST AND COMPLIANCE PROCEDURE
SECTION 10.SERVICE EXTENSION,CONSTRUCTION AND INTERCONNECTION
10.1 Equivalent Service
10.2 Service Availability
10.3 Connection of Public Facilities
SECTION 11.FRANCHISE VIOLATIONS;REVOCATION OF FRANCHISE
11.1 Procedure for Remedying Franchise Violations
11.2 Revocation
11.3 Liquidated Damages
11.4 Receivership and Foreciosure
11.5 No Recourse Against Grantor11.6 Nonenforcement by Grantor
11.7 Relationship of RemediesSECTION12.FRANCHISE RENEWAL AND TRANSFER
12.1 Renewal
12.2 Transfer ofOwnership or Control
SECTION 13.SEVERABILITY
SECTION 14.MISCELLANEOUS PROVISIONS
14.1 Preferential or Discriminatory Practices Prohibited
14.2 Notices
14.3 Binding Effect
14.4 AuthoritytoAmend
14.5 Governing Law
14.6 Guarantee
14.7 Captions14.8 Construction of Agreement
14.9 Entire Agreement
14.10 Attorney's Fees
14.11 Time Is of the Essence
SECTION 1.DEFINITIONS.Forthe purposes ofthisAgreementand allexhibits attached hereto,the following
terms,phrases,words and theirderivationsshallhave themeaning givenherein.When not inconsistent with
the context,words used inthepresent tense include thefuture,words in theplural include the singular,and
wordsinthesingularinclude the plural.Words not defined shallbe given theircommonand ordinary meaning.
The word "shall"is alwaysmandatory and not merelydirectory.
1.1 "Affiliate"when used in connectionwith Grantee means anycorporation,Person or entitywho owns orcontrols,is owned or controlled by,or is under commonownership or control with,Grantee.
1.2 "Basic Service"means any service tierwhichincludes theretransmissionof localtelevisionbroadcast
signals,or as such service tiermay be further defined byfederal law.
1.3 "Cable Acts"mean theCable Communications Policy Act of 1984 and theCable TelevisionConsumer
Protection and CompetitionActof 1992 andany amendments thereto,including those containedintheTelecommunicationsActof1996,and anyfuture federal cable televisionlegislation.
1.4 "Cable Operator"means any Person or groups of Persons,including Grantee,who provideCable
Service over a Cable System and directlyorthroughone ormore Affiliatesown a significantinterest in
such Cable System or who othenWise control or are responsiblefor,throughany arrangement,the
management and operationof such a Cable System.
1.5 "Cable Service"means the one-way transmissionof video programming or other programming service
toSubscribers,and Subscriber interaction,ifany,which is required for the selection or use of such
video programming or other programmingservice.
1.6 "Cable System"means a facility,consistingofa set ofclosed transmissionpathsand associated signal
generation,reception,and control equipmentthat is designed toprovide CableService which includes
video programming and which is provided to multiple Subscriberswithina community,but such term
does not include (1)a facility thatserves only to retransmit the televisionsignals of one or more
televisionbroadcast stations;(2)a facilitythatserves Subscribers without usinganypublic right-of-way;
(3)a facility ofa common carrier which is subject,inwhole or in part,to the provisions ofTitle IIofthe
federal CommunicationsAct (47U.S.C.201 et seq.),except that such facility shallbe considered a
Cable System (otherthan for purposes ofSection 621(c)(47U.S.C.541(c))totheextentsuch facility
isused in thetransmissionof video programming directly toSubscribers,unless theextentof such use
issolelytoprovideinteractive on-demandservice;(4)an open video system thatcomplieswithfederal
statutes;or (5)anyfacilities ofany electric utilityused solelyfor operating its electricutilitysystems.
1.7 "Channel"means a portion ofthe electromagnetic spectrum which is used in a Cable System and is
capable of delivering a televisionChannel,as televisionChannel is defined by the FCC in other
applicable regulations.
1.8 "Downstream"means thetransmissionfromthe Headend to remote pointson theCableSystem orto
Interconnection points on the Cable System.
1.9 "_F_CC"means theFederalCommunications Commission.
1.10 "Franchise"means the non-exclusive and revocable authorization or renewal thereof for the
constructionor operation of a Cable System such as is granted by thisAgreement,whether suchauthorizationisdesignatedasaFranchise,license,resolution,contract,certificate,agreement orotherwise.
1.11 "Franchise Area"means thearea withinthe jurisdictionalboundaries of theCity,including any areasannexedbyGrantorduringthetermofthisAgreement.
1.12 "GrossRevenues"means allamounts accruedbyGrantee inwhateverformandfrom allsources,fromtheoperationofGrantee's Cable Systemto provideCable Service within the Franchise Area."GrossRevenues"shall include,without limitation,allamountsforallCableServices,including,but not limitedOto,Basic,expanded basic,premium,and pay-per-view services,advertising sales and installation feesandcharges."Gross Revenues"shall also includeany revenue received by any Affiliate of GranteewheresuchrevenueintheordinarycourseofbusinesshasbeenpaidorshouldhavebeenpaidtoGranteefromtheoperationofitsCableSystemtoprovideCableServicewithintheFranchiseArea.Bywayofillustrationandnotlimitation,thisdefinitionwould include revenue derived from the sale of CableSystemadvertisingtimebyanAffiliateofGrantee."GrossRevenues"shall notinclude bad debt,salestaxes,orothertaxeswhich are collectedbyGrantee on behalf of,and for payment to,the local,stateorfederalgovernment
1.13 "Headend"means a facilityforsignal reception and dissemination ona Cable System,including cables,antennas,wires,satellite dishes,monitors,switches,modulators,processors and all other relatedequipmentandfacilities.
1.14 "Interconnect"means the provision by Grantee of technical,engineering,physical,and all othernecessarycomponentstomaintainaphysicallinkingofGrantee's Cable System and Cable Service oranydesignatedChannelorsignalpathwaythereofwithneighboringCableSystems,so that CableServiceoftechnicallyadequatequalitymaybesentto,and received from,other systems inaccordancewiththisAgreement
1.15 "Leased Access Channel"means any Channel commerciallyavailable for programming for a fee orchargebyGranteetomembersofthegeneralpublic.
1.16 "Person"means any individual,natural Person,sole proprietorship,partnership,association,orcorporation,or any other form ofentity or organization.
1.17 "School"means any accredited educationalinstitution,public or private,including,but not limited to,primary and secondary Schools,and colleges and universities.O 1.18 "_Str_eet"means each of thefollowingwhichhave been dedicated tothepublic orare hereafter dedicatedtothepublicandmaintainedunderpublicauthorityorbyothersandlocatedwithintheFranchiseArea:Streets,roadways,highways,avenues,lanes,alleys,sidewalks,easements,rights-of-wayand similarpublicpropertyandareas.
1.19 "Subscriber"means any Person who elects to subscribe to,for any purpose,Cable Service providedbyGranteebymeansof,orin connection with,theCable System,andwhose premises are physicallywiredandlawfullyactivatedtoreceiveCableServicefromGrantee's Cable System.
A."CommercialSubscriber"whichmeans any Subscriberother thanResidential Subscriber.
B."Residential Subscriber"which means any Person who receives Cable Service delivered to single
or multiple dwelling units,excluding such multiple dwelling units billed on a bulk-billing basis.
1.20 "Upstream"means thecarrying of a transmissiontothe Headend from remote points on theCableSystemorfromInterconnectionpointsontheCableSystem.
SECTION 2.GRANT OF FRANCHISE
A.This Agreementauthorizes Grantee toengage in providing Cable Service,as thattermis definedin47U.S.C.Sec.522(6),as amended.
B.Grantee promises and guarantees,as a condition of exercising the privileges granted by thisOAgreement,thatany Affiliateor jointventure or partner of the Grantee directly involved in theofferingofCableServiceintheFranchiseArea,or directly involved inthemanagementor operationoftheCableSystemintheFranchiseAreawillalsocomplywiththetermsandconditionsofthisAgreement.
2.2 Use of Public Streets and Ways:Grantee willprovidea Cable Service within theFranchise Area bymeansofinfrastructureownedandmaintainedbyathirdpartywhichpartyhasseparatelyobtainedafranchisefromtheCitytolocateandmaintainitsinfrastructureinthepublicrights-of-way.Grantee isnotgrantedanypermissiontomakeanyuseoftheCity's rights-of-wayexcept as a user ofthe thirdparty's infrastructure upon such terms and conditions as theGrantee and thethirdparty shalldetermine.
2.3 Duration:The termof thisAgreement and all rights,privileges,obligations and restrictionspertaining
theretoshall be from the effectivedate of thisAgreement throughOctober 31,2011.
2.4 Effective Date:The effectivedate of thisAgreement shall be November 1,2001,unlessGranteefails
tofilean unconditional written acceptance ofthisAgreement by January 1,2002,inwhich event this
Agreement shallbe null and void,and any and all rights of Grantee to operate a Cable System within
theFranchise Area under thisAgreement are hereby terminated.
2.5 Franchise Nonexclusive:This Agreement shall be nonexclusive,and is subject to all prior rights,
interests,agreements,permits,easements or licenses granted by Grantor and for such additional
Franchises for Cable Systems as Grantor deems appropriate,upon such termsand conditions as
Grantor deems appropriate.
2.6 Grant of Other Franchises:
A.Intheevent theGrantorenters into a Franchise,permit,license,authorization,orother agreement
of anykind with anyother Person or entityother thanthe Grantee forthepurpose of constructing
or operating a Cable System or providing Cable Servicetoany part of theService Area,in which
the Grantee is actuallyprovidingCable Serviceunder the termsand conditionsof thisAgreement,
the material provisions thereofshallbe reasonably comparable to those contained herein,inorder
that one operator not be granted an unfair competitiveadvantage over another,and toprovideall
parties equal protection under the law.
B.IfGrantor grants a Franchise to a third partyfor service toan area thatGrantee is not actually
servingorrequiredto extend service to,and which has material provisions thatare not reasonably
comparabletothose containedherein,Grantor sha11offer Grantee a Franchise toserve the same
area under termsand conditions thatare reasonably comparabletothoseset forth inthe Franchise
Agreemententered into withthethirdparty.
2.7 Police Powers:Grantee's rights hereunder are subjecttothelawfulpolice powersofGrantor toadopt
and enforce ordinances necessary tothesafety,health,and welfareof thepublic,and Grantee agrees
to complywith allapplicable laws andordinancesenacted,orhereafter enacted,byGrantor oranyother
legally-constituted governmental unit having lawfuljurisdictionover thesubject matterhereof.
2.8 Relations to Other Provisions of Law:This Franchise Agreement and allrightsand privileges granted
under the Franchise are subject to,and the Grantee must exercise all ríghts in accordance with,
applicablelaw,as amended overthe Franchise term.However,thisFranchise is acontract,subject only
totheGrantor's exercise of its police and other powersand applicable law.This Franchise does not
confer rights or immunities upon theGrantee other thanas expressly provided herein.In the case of
any conflictbetween the express termsof thisFranchise Agreement and any ordinance of general
application enacted pursuant totheGrantor's police power,theordinanceshallgovern.Grantee does
not waive its righttochallengethelawfulnessofa particularenactment,includingon thegroundsthat
a particularactionis an unconstitutional impairmentof contractualrights.The Franchiseissued and the
Franchise fee paid hereunder are not in lieuof any other required permit,authorization,fee,charge or
tax,unless expresslystated herein.
2.9 Effect ofAcceptance:Byaccepting the Agreement,the Grantes:(1)acknowledgesand accepts the
Grantor's legal rightto issue and enforce theAgreement;(2)agrees thatitwillnotoppose theGrantor's
intervening in anyproceeding affecting the Cable System;(3)accepts and agrees tocomply witheach
and every provision of thisAgreement;and (4)agrees that the Agreement was granted pursuant to
processes and procedures consistent with applicable law,and that it will not raise any claim tothe
contrary.
SECTION3.FRANCHISE FEE AND FINANCIALCONTROLS
3.1 Franchise Fee:As compensationfor the benefits and privilegesgranted underthisAgreement and in
considerationof permissionto use Grantor's rights-of-way,Grantee shall pay as a Franchise fee to
Grantor,throughoutthedurationofthis Agreement,an amountequal tofive percent (5%)of Grantee's
Gross Revenues derived from the operationof the Cable System to provide Cable Service in the
Franchise Area.Accrual of such Franchise fees shall commence as of the effectivedate of this
Agreement.The Franchise fees are in addition to all other fees,assessments,taxes or payments of
general applicabilitythatthe Grantee may be required to pay under any federal,state or local law.This
Agreement and the Franchise fees paid hereunder are not in lieu of any other generally applicable
required permit,authorization,fee,charge or tax.
3.2 Pavments:Grantee's Franchise fee payments toGrantor shallbe computedquarterly.Each quarterly
paymentshallbe due and payable no later than forty five (45)days afterthe last dayof thepreceding
quarter.
3.3 Acceptance of Pavment and Recomputation:Noacceptance ofanypayment shall be construed as an
accord by Grantor thatthe amount paid is,in fact,thecorrect amount,nor shall any acceptance of
payments be construed as a release of any claim Grantormay have for furtheror additionalsums
payableor for theperformanceof anyother obligationof Grantee.
3,4 QuarterlyFranchiseFee Reports:Each payment shall be accompanied bya writtenreport toGrantor,containing an accurate statement in summarized form,as well as in detail,of Grantee's GrossRevenuesandthecomputationofthepaymentamount.
3.5 Annual Franchise Fee Reports:On an annual basis,upon thirty(30)days'priorwritten notice,GrantorshallhavetherighttoconductanindependentauditofGrantee's records reasonably related to theadministrationorenforcementofthisAgreement,in accordance withgenerally accepted accountingprinciples.The Citymayhire an independent certifiedpublicaccountant to audit the Grantee's financialrecords,inwhichcase theGrantee shall provide allnecessary records tothe certified publicaccountant.If theauditshows thatFranchisee fees have been underpaid by four percent (4%)or more,Granteeshallpaythetotalcostoftheaudit
3.6 Interest on Late Payments:Intheevent thata franchise fee payment or other sum is not received bytheGrantoronorbeforetheduedate,oris underpaid,theGranteeshallpay inadditiontothepayment,or sum due,interest fromthedue date at a rate equal to the interest rate specified forjudgmentsenteredintheSuperiorCourtoftheStateofWashington.
3.7 Alternative Remedies:If any Section,subsection,paragraph,termor provision of this FranchiseAgreementoranyordinance,law,or document incorporated herein by reference is held by a court ofcompetentjurisdictiontobeinvalid,unconstitutional or unenforceable,such holdingshall be confinedinitsoperationtotheSection,subsection,paragraph,termor provision directly involved in thecontroversyinwhichsuchholdingshallhavebeenrenderedandshallnotinanywayaffectthevalidityofanyotherSection,subsection,paragraph,termorprovision hereof.Under such a circumstance,theGranteeshall,upon theGrantor's request,meet and confer withthe Grantor toconsider amendmentstotheFranchiseAgreement.The purpose of the amendments shall be to place the parties,as nearlyaspossible,inthe positionthattheywere in prior tosuch determination,consistent withapplicable law.Intheevent theparties are unabletoagree toa modificationofthisAgreement within sixty(60)days,either partymay either (1)resortto litigationtoamend the Agreement;or(2)shortenthe Agreement to36months,at which point eitherparty mayinvoke the renewal procedures under47 U.S.C.subsection546.Each party agrees to participate inup tosixteen (16)hoursof negotiation during thesixty (60)dayperiod.
3.8 Additional Commitments Not Franchise Fees:Notermor condition inthisAgreement shallinanywaymodifyoraffectGrantee's obligation to pay Franchise fees to Grantor.Although the total sum ofFranchisefeepaymentsandadditionalcommitmentssetforthelsewhereinthisAgreementmaytotalmorethanfivepercent(5%)ofGrantee'sGross Revenues in any12-month period,Grantee agrees thattheadditionalcommitmentshereinarenotFranchisefeesasdefinedunderanyfederallaw,nor aretheytobeoffsetorcreditedagainstanyFranchisefeepaymentsduetoGrantor.
3.9 Costs of Publication:Grantee shall pay the reasonable cost of newspaþer notices and publicationpertainingtothisAgreementandanyamendmentsthereto,as such noticeorpublication is reasonablyrequiredbyGrantororapplicablelaw.
3.10 Tax Liability:Payment of theFranchise fees underthisAgreement shall not exempt Grantee from thepaymentofanygenerallyapplicablelicense,permit fee or othergenerallyapplicable fee,tax or charge
on thebusiness,occupation,property or income of Grantee that may be imposed by Grantor.
3.11 Payment on Termination:IfthisAgreement terminatesfor any reason,theGrantee shall filewiththeGrantorwithinninety(90)calendar days of the date of the termination,a financial statement,certifiedbyanindependentcertifiedpublicaccountant,showingtheGross Revenues received bytheGranteesincetheendofthepreviousfiscalyear.The Grantor reserves the right to satisfy any remainingfinancialobligationsoftheGranteetotheGrantorbyutilizingthefundsavailableinanyLetterofCreditorothersecurityprovidedbytheGrantee.
SECTION 4.ADMINISTRATIONAND REGULATION
4.1 Authority:Grantorisvested withthepower andrighttoregulatetheexercise oftheprivileges permittedbythisAgreementinthepublicinterest,or to delegate thatpower and right,or any partthereof,to theextentpermittedunderstateandlocallaw,to anyagent,in its sole discretion.
4.2 Rates and Charges:Allof Grantee's rates and charges related toor regarding Cable Service shallbesubjecttoregulationbyGrantortothefullextentauthorizedbyapplicablefederal,state and local laws.
O 4.3 Rate Discrimination:All of Grantee's rates and charges shall be published (inthe form of apublicly-available rate card),and shall be nondiscriminatory as to all Persons and organizations ofsimilarclasses,under similarcircumstancesandconditions.Grantee shall applyits rates inaccordancewithgoveminglaw,with similar rates and charges for allSubscribers receiving similarCable Service,without regard to race,color,familial,ethnic or nationalorigin,religion,age,se×,sexual orientation,marital,military or economic status,or physical or mental disability,or geographic location in theFranchiseArea.Grantee shall provide equivalent Cable Service toall residentialSubscribers at similarratesandtocommercialSubscribersasauthorizedbyapplicablelaws.Nothing herein shall beconstruedtoprohibit:
A.The temporaryreduction or waiving of rates or charges in conjunction with valid promotionalcampaigns,
B.The offering ofreasonable discounts to senior citizens oreconomicallydisadvantaged citizens;
C.Granteefromestablishingdifferent and nondiscriminatory rates and charges and classes ofservice
for commercial customers,as well as different nondiscriminatorymonthly rates for classes of
commercialcustomers as allowableby federal lawand regulations;or
D.Grantee from establishing different and nondiscriminatory rates and charges for residential
Subscribers as allowableby federal law and regulations.
4.4 Filinqof Rates and Charges:
A.Throughout theterm of thisAgreement,Grantee shall maintainon file withGrantor a complete
schedule of applicablerates andchargesforCableService providedunderthisAgreement.Nothing
in thissubsection shallbe construed to requireGrantee tofile rates and charges under temporary
reductionsorwaiversofrates and charges inconjunctionwithpromotionalcampaigns provided that
Grantee shall make reasonable efforts tonotifyGrantorin writing in advance ofsuchpromotions.
B.Grantee shall provide upon request fromGrantor a complete schedule of current rates andcharges
for any and all Leased Access Channels,or portions of such Channels,provided by Grantee.The
schedule shall include a description oftheprice,terms and conditions established by Grantee for
Leased Access Channels.
4.5 Time LimitsStrictivConstrued:Whenever thisAgreement sets fortha timefor any act tobe performed
by Grantee,such timeshall be deemed to be of the essence,and any failure of Grantee topelform
withintheallottedtimemay be considereda material violationofthisAgreementand sufficientgrounds
for Grantor to invoke any relevantprovision ofthisAgreement,However,in theevent thatGrantee is
prevented or delayed in the performance of any of its obligations under thisAgreement byreason
beyond the reasonable controlof Grantee,such as acts of God (forexample,floods,tornadoes,
earthquakes or unusually severe weather conditions),Grantee's performance shall be excused during
theforce majeureoccurrence and Grantee thereafter shall,under the circumstances,promptly perform
the affected obligationsunder this Agreement or procure a substitute for such obligation which is
satisfactory to Grantor.Grantee shall not be excused bymere economic hardship nor by misfeasance
or malfeasance ofits directors,officers or employees.
4.6 Performance Evaluation Sessions:
A.Grantor mayhold regularperformanceevaluation sessions annuallyon theanniversarydates ofthe
effectivedate of thisAgreement.Allsuch evaluationsessions shall be conducted by Grantor.
B.Special evaluationsessions may be held at any timebyGrantor during thetermofthisAgreement.
C.Allregular evaluationsessions shall be open to the public and announced at least one week in
advance in a newspaper of general circulation inthe Franchise Area.
D.Evaluation sessions shalldeal withthe Grantee's performance of theterms and conditionsof the
Franchise and compliancewithstate and federal laws and regulations.
E.As part of theannual performance evaluationsession,Grantee shall submitto the Grantora list
ofallCable Servicesavailable.IftheGrantorhas reasontobelieve thata portion oralloftheCable
Systemdoes notmeet theapplicableFCCtechnicalstandards,theGrantor,at its expense,retains
the right to appoint a qualified independent engineer to evaluate and verify the technical
performance oftheCable System.
F.During evaluations under thisSection,Grantee shall fullycooperatewith Grantor and shallprovide
such information and documents as necessary and reasonable for Grantor to perform the
evaluation.
SECTION6.FINANCIALAND INDEMNIFICATIONREQUIREMENTS
5.1 Indemnification:
A.Scope of Indemnitv.Grantee shall,at its sole cost and expense,indemnify,hold harmless,and
defend the Grantor and its officers,boards,commissions,agents,and employees against any and
allclaims,including,but not limited to,thirdpartyclaims,suits,causes of action,proceedings and
judgments for damages or equitable relief arising out of the operation of its Cable System
regardlessofwhether theactor omission complained of is authorized,allowed,or prohibited bythis
Agreement provided,however,the Grantee willnot be obligated to indemnify Grantor should
Grantor intervene inany proceeding regarding thegrantofthisAgreement pursuant toSection 2.9
ofthisAgreement.Withoutlimitinginany way the Grantee's obligationtoindemnifytheGrantor and
its officers,boards,commissions,agents,and employees,as set forth above,this indemnity
provision also includes damages and liabilitiessuch as:
1.To Persons or property,in any way arising out of or throughthe acts or omissions ofthe
Grantee,its contractors,subcontractorsand their officers,employees,oragents,or towhich
theGrantee's negligence shall in any waycontribute;
2.Arising out of any claim for invasion of the right of privacy;for defamation ofany Person,firmorcorporation;for the violation or infringement of any copyright,trademark,trade name,service mark,or patent;for a failure by the Grantee to secure consents from the owners orauthorizeddistributorsofprogramstobedeliveredbytheCableSystem;orforviolationof anyotherrightofanyPerson;
3.Arising out of Grantee's failureto complywiththe provisionsof any federal,state or localstatute,ordinance,rule or regulationapplicable totheGrantee with respect toany aspect ofitsbusinesstowhichthisAgreementapplies;and
O 4.Arisingfrom anythirdparty suit,action orlitigation,whetherbroughtby a competitortoGranteeorbyanyotherPersonorentity,whether such Person or entity does ordoes not have standingtobringsuchsuit,actionor litigation ifsuch action(1)challengestheauthority of theGrantortoissuethisAgreementtoGrantee;or (2)alleges that,in issuing thisAgreement toGrantee,theGrantorhas acted in a disparate or discriminatory manner.
B.Duty toGive Noticeand Tender Defense.The Grantorshall givetheGrantee timelywrittennoticeofanyclaimorofthecommencementofanyaction,suit or other proceeding covered by theindemnityinthisSection.Intheeventany such claimarises,theGrantor or any other indemnifiedpartyshalltenderthedefensethereoftotheGranteeandtheGranteeshallhavetheobligationanddutytodefend,settleor compromiseany claimsarising thereunder,andtheGrantor shallcooperatefullytherein.Grantee shall accept or decline the tenderwithinthirty(30)days.Grantee shallreimbursereasonableattorneys'fees and costs incurred by the Grantor during thethirty(30)dayperiodinwhichtheGranteeacceptsordeclinestender.In the event thattheGrantee declinesdefenseoftheclaiminviolationofSection5.3,the Grantor may defend such claim and seekrecoveryfromGranteeitsexpensesforreasonableattorneys'fees and disbursements,includingexpertwitnessfees,incurred by Grantor for defense and inseekingsuch recovery.
5.2 Letter of Credit:
A.No later thantheeffectivedate ofthisAgreement,Granteeshallestablishand provide toGrantor,as securityforthefaithfulperformanceby Grantee of all provisions of thisAgreement,a Letter ofCreditintheamountoftwentythousanddollars($20,000).The Letter of Credit shallbe filed in aformacceptabletotheGrantorandissuedbyafinancialinstitutionacceptabletotheGrantor,provided theGrantor,in its sole discretion,maydirect thatthe Letter of Credit be issued by a localfinancialinstitution.
B.The Letter of Creditshall be maintained at twentythousand dollars ($20,000)throughoutthe termofthisAgreement.
C.The Letter ofCreditmaybe assessed by Grantorfor various purposes including,but not limitedto,the following:
1.Failure of Grantee topay Grantorsums due under the termsofthisAgreement;
2.Reimbursementof costs borne byGrantor tocorrectviolations ofthisAgreement notcorrectedbyGrantee;
3.Liquidated damages assessed against Grantee due to violations of therequirements ofthisAgreement;and
4.Failure to comply with theCustomerService Standards.
D.Grantee agrees thatitshallnotattempt,throughlitigationor otherwise,topreventor inhibitGrantorfromdrawingontheLetterofCredit.Grantee shall have the right of a de novo court appeal ifGranteebelievestheLetterofCredithasnotbeenproperlydrawninaccordancewiththisAgreement.Any funds Grantorerroneouslyorwrongfully withdrawsfromtheLetter ofCreditshallbereturnedtoGrantee,with interest from the date of withdrawal at a rate equal tothe primerateofinterestasquotedbyU.S.Bank,or its successor,within thirty(30)business days of a finaldeterminationthatthewithdrawalwasinerrororwrongful.
E.IfGrantee fails withinthirty(30)days after the date ofwritten notice topay toGrantor any franchisefees,assessment or taxeslawfullydue which Grantor determines can be remedied by a draw upon0theLetterofCredit,Grantor may thereafterwithdrawthe amount thereoffromthe Letter ofCredit.Upon such withdrawal,Grantor shall notify Grantee ofthe amount and date thereof.Withinseven(7)days following receipt by Grantee of writtennotice from Grantor that any amount has beenwithdrawnfromtheLetterofCredit,Grantee shall restore such Letterof Credit tothe amountrequiredunderthisAgreementFailurebyGranteetosorestoretheLetterofCreditshallbeconsideredamaterialviolationofthisAgreement.
F.The Letter ofCreditdeposited pursuanttothisSection shall become theproperty ofGrantor intheeventthatthisAgreementislawfullyterminatedorrevokedforcausebyreasonoftheviolationbyGrantee,and Grantee has exhausted all of its remedies relating thereto.Grantee,however,shallbeentitledtothereturnoftheLetterofCreditdepositedinaccordancewiththisSection,or anyportionthereofremaininguponnormalexpirationofthisAgreement
G,Therights reserved to Grantor with respect tothe Letterof Credit are in additionto allother rights
of Grantor whether reserved by this Agreement or authorized by law or equity,and no action,
proceedingorexercise ofa rightwith respect tosuch Letter ofCreditshall constitutea waiverofany
otherright Grantormay have.
SECTION6.CUSTOMER SERVICE
6.1 Customer Service Standards:The Grantee shall meet or exceed any customer service standards
adopted bythe FCCand,totheextent thesame are stricter oraddress different matters,thoseadopted
nowor in the future by the Grantor.
6.2 Subscriber Privacy:Grantee willcomply with privacy rightsof Subscribers inaccordancewith federal,
state and local law.
6.3 Local Office:Throughout the Agreement term,the Grantee must maintain,at a minimum,one (1)
customerservice centerconvenientlylocated in the City of Moses Lake/Grant CountyFranchise Area
which willbe open during normal business hours,as defined by the FCC,to provide Subscribers the
opportunity for thereceipt and pickupofSubscriber equipment and forbillpayments and complaints.
Grantee shallinstall telephonesand other equipmentsothat customercomplaints andservice requests
can be received by Grantee on a 24-hour basis at a toll-freetelephonenumber.Such local office
requirement may be satisfied throughthe operation of a local officeof a company havinga joint
operatingagreement with theGrantee as respects theofferingof Cable Services inthe Franchise Area.
6.4 Emergency Override:The Grantee shall maintain systems,equipment,and procedures permítting
preemptingof the regular signal on allchannels with emergency waming signals originating from the
Grant County Emergency Services (GCES).The following stipulations shallapply,except where and
towhat extent they may be preempted by FCC regulations:
A.The Director of theGCES shalldetermine when the Emergency Cable Override is to be activated
in response toactualor impending emergencyconditions.
B.The Grantee shall provideand maintainall equipment,systems,software,services,security
provisions,and procedures required for a fully operationalemergency cable override warning
system inaccordancewith FCC rules.Any equipment necessary for activation ofthesystem by the
GCES shall be provided by the Grantor.Activation points shall be at the GCES and one other
backup point withinthe Grant County area,as mutually agreed upon by the parties.
C.The cable overrideshall consist of audio and crawler text signals as required by the Federal
Communications Commission rules governingthe new Emergency Alert System (EAS).
D.The system shall be testedas determined by the GCESnot more thanmonthly and notless than
annually.
E.The Grantee shallcooperate fullywiththe GCES in all other matters pertaining toa functioning
emergency cable override system.
F.Should the owner of the infrastructure which is the means of transmissionof the Cable Service
authorized in this Agreement provide the emergencyoverride acceptable tothe GCES,then the
Grantee shallhave no further obligationunder thisprovision.
SECTION 7.REPORTS AND RECORDS
7.1 Open Records:Grantee shallmanage all of its operations inaccordance witha policyofkeeping its
documents and records open and accessible toCity.Cityshall have access to,andthe right toinspect,
any books and records of Grantee,its parentcorporations and Affiliatedentities which are reasonably
relatedand necessary totheadministration or enforcementof thetermsof thisAgreement.Grantee
shall not deny Cityaccess toany such records ofGranteeonthebasis thatGrantee's records are under
thecontrolofanyparentcorporation,affiliatedentityora thirdparty relatedtothisAgreement.City may,
inwriting,request copies of any such records or books and Grantee shall provide such copies within
thirty(30)days of the transmittalof such request.One copy of all reports and records required under
this or any other Section shall be furnished to City at the sole expense ofGrantee.Ifthe requested
books and records are toovoluminous,or for security reasons cannot be copied or removed,then
Grantee mayrequest,in writing within ten (10)days,thatCity inspect them at one of Grantee's local
area offices.Ifany books or records of Grantee are not kept in a local area officeand not made
available in copies to City upon writtenrequest as set forthabove,and if Citydetermines that an
examination of such records is necessary or appropriateto the performance of any of City's duties,
administrationor enforcement of thisAgreement,thenall reasonable travelexpenses incurred in
makingsuch examination shallbe paid by Grantee.Ifany books or records ofGrantee are not kept in
a local office,Grantee willprovideor otherwisemake such documents availablefor inspection and
reviewat the local officewithinten (10)working days.
7.2 Confidentiality:Cityagrees totreatas confidential any books and records that constitute proprietary
orconfidential information under federal or state law,tothe extentGrantee makes City aware of such
confidentiality.Grantee shall be responsible for clearly and conspicuously stamping the word
"Confidential"on each page thatcontains confidential or proprietaryinformation,and shallprovídea
brief written explanation as towhy such information is confidential under state or federal law.IfCityreceivesademandfromanyPersonfordisclosureofanyinformationdesignatedbyGranteeasconfidential,Cityshall,so far as consistent with applicable law,advise Grantee in advance so thatGranteemaytakeappropriatestepstoprotectitsinterestsandprovideGranteewithacopyofanywrittenrequestbythepartydemandingaccesstosuchinformationwithinareasonabletime.Untilotherwiseorderedbyacourtoragencyofcompetentjurisdiction,City agrees that,to the extentpermittedbystateandfederallaw,itshalldeny access toany of Grantee's books and records markedconfidentialassetforthabovetoanyPerson.
7.3 Complaint File:Grantee shall keep an accurate and comprehensivefile of any and allcomplaintsregardingtheCableSystemasrequiredbytheFCC.
7.4 Inspection of Facilities:City may inspect upon request any of Grantee's facilities and equipment toconfirmperformanceunderthisAgreementatanytimeuponatleastforty-eight (48)hours notice,or,incase of an emergency,upondemand withoutpriornotice.
7.5 FalseStatements:Anyintentionalfalseormisleadingstatementorrepresentation inanyreportrequiredbythisAgreementmaybedeemedamaterialviolationofthisAgreementandmaysubjectGranteetoallremedies,legal or equitable,which are availabletoCityunder thisAgreement orotherwise.
SECTION 8.PROGRAMMING
8.1 Broad Programming Categories:
A.Grantee's cable televisionsystem shall provide the widest diversity of programmingpossible.Grantee shall provideat least the following broad categories of programming tothe extent suchcategoriesarereasonablyavailable:
1.Educationalprogramming;
2.WashingtonState news and information;
3.Sports;
4.Generalentertainment(includingmovies);5.Children/family-oriented;6.Arts,culture and performing arts;7.Foreign language;
8.Science/documentary;9.Weather information;
10.Programming addressed to diverse ethnicand minority interests in the Franchise Area;and11.National,state,and local governmentaffairs.
B.Grantee shallnotdelete any broad categoryof programming within its control.
8.2 Parental Control Device:Upon request byany Subscriber,Grantee shall,without charge,fullyscramble
orotherwise fullyblock theaudioandvideoprogrammingof each channel carrying such programmingsothatonenotaSubscriberdoesnotreceiveit.Upon request by a Subscriber,Grantee mayinstall afiltertoblockatleastthevideoofcertainchannelsaSubscribersubscribestobutfindsobjectionable.
8.3 Leased Access Channels:Grantee shallmeetthe requirementsfor Leased Access Channels imposedbyfederallaw.
8.4 Continuitv of Service:
A.Itshallbe the rightof all Subscribers tocontinue toreceive Cable Service from Grantee insofar astheirfinancialandotherobligationstoGranteearesatisfied.Subject totheforce raajeure provisionsofthisAgreement,Grantee shall use its best efforts to ensure that all Subscribers receivecontinuous,uninterrupted Cable Service.
B.Intheevent ofa change in ownership,or in theevent a newCable Operator acquires the CableSysteminaccordancewiththisAgreement,Granteeshall cooperatewithCityand such newCableOperatorinmaintainingcontinuityofservicetoallSubscribers,
8.5 Grantee shall retransmit allclosed-captionedsignals made available by programmersin conjunctionwithprogramminginitsline-up and which are required to be carried by the FCCin order tofacilitate0viewingbyhandicappedpersons.Grantee shallcomplywith the Americans With Disabilities Act,anyamendmentstheretoandanyotherapplicablefederal,state or local laws or regulations.Grantee shallmaintainthenecessaryhead-end equipment tomake SAP features available to Subscribers.Grantee'sobligationsunderthissubsectiondonotextendtoprovidingcustomerpremisesequipment
8.6 CommunityProgrammina Needs:Atthe request oftheMayor,butnomorethantwice,ninety (90)daysaftersuchrequest,the Grantee shall furnish to all subscribers along with their monthlyservicestatement,a listof broad categories ofprogramming,and other services available to Grantee,subjecttopriorreviewbytheMayor.The menutobe intheformat of a mailbacksurveyfordeterminationofthesubscriber's programming preference.The results of the survey are to be provided the City bytheGranteewithanyproposedchange(s)inprogramming toaccommodate subscriber's desired revisionsasindicatedbytheresultsofthesurvey.
8.7 CategoryAgreement:The partiesexpressly agree thatthe programming described inparagraph 8.1
represent broadcategoriesofvideoprogrammingwithinthe meaningof 47 U.S.C.544(b)(2)(B).
SECTION 9.TEST AND COMPLIANCE PROCEDURES
9.1 Upon request,Grantee shall advise Grantor of schedules and methods for testingthe Cable System
on a regularbasis todetermine compliance with theprovisions of applicable FCC technicalstandards,
Tests maybe witnessed by representativesofGrantor,and writtentest reports may be made available
toGrantorupon request.
9.2 As required by FCCRules,Grantee shallconductproof of performancetests and cumulative leakage
indextestsdesigned todemonstrate compliancewithFCCrequirements.Grantee shall provideGrantor
summarywrittenreportsof theresults of such tests.
SECTION 10.SERVICE EXTENSION,CONSTRUCTION,AND INTERCONNECTION
10.1 Eguivalent Service:Itis Grantee's general policythatallresidentialdwellingunits intheFranchise Area
have equivalentavailability to Cable Service from Grantee's Cable System under nondiscriminatory
rates and reasonable termsand conditions.Grantee shall not arbitrarilyrefusetoprovide Cable Service
to any Person withinits Franchise Area.
10.2 Service Availabilitv:New Construction.Grantee shall provide Cable Service innewlyconstructed areas
as soon as theinfrastructure carrying Grantee's Cable Service is installed and operational.
10.3 Connectionof Public Facilities:Grantee shall,at no cost to Grantor,provideat least one (1)outlet of
Basic and expanded basic programmingto all City/Grant Countybuildings,as designated by the
Grantor,and all libraries and Schools.In addition,Grantee shall provide,at no cost to the building
owner,one (1)outletof Basic and expanded basic programming to allsuch future public buildings.
Outletsof Basic and expanded basic programmingprovided inaccordance withthissubsection may
be used to distribute Cable Service throughout such buildings,providedsuch distribution can be
accomplished without causingCable System disruption and general technicalstandards are maintained.
SECTION 11.FRANCHISE VlOLATIONS;REVOCATION OF FRANCHISE
11.1 Procedure for Remedving Franchise Violations:
A.IfGrantorbelieves that Grantee has failedtoperformany obligationunder thisAgreementor has
failedtoperform inatimelymanner,GrantorshallnotifyGrantee inwriting,statingwith reasonable
specificity the nature of thealleged violation.Grantee shall have thirty(30)days from thedate of
receiptof such notice to:
1.RespondtoGrantor,contestingGrantor'sassertion that a violation has occurred,and request
a hearing in accordance with subsectionC below;or
2.Cure the violation;or
3.NotifyGrantorthat Grantee cannotcure theviolation withinthe thirty(30)days,because ofthe
natureoftheviolationand notifytheGrantor inwritingof what steps theGrantee shalltaketo
curethe violation including theGrantee's projected completion date for such cure.In such
case,Grantorshallset a hearing date withinthirty(30)days of receipt of such response in
accordance withsubsection (B)below.
B.Inthe eventthattheGrantee notifies theGrantorthatitcannot cure theviolationwithinthethirty(30)
day cureperiod,Grantor or its designee shall set a public hearing withinthirty(30)days ofGrantor's
receipt of such notice to review and determine whether theGrantee has takenreasonable steps to
cure the violationand whether the Grantee's proposed plan and completiondate for cure are
reasonable.Inthe eventsuch plan and completion date are found tobe reasonable,thesame shall
be approvedbythe Grantor,who maywaiveallor partof theliquidated damages forsuch extended
cure periodin accordance with the criteria set forthin subsection (E)ofthissection.
C.Inthe event that theGrantee fails tocure the violationwithinthe thirty(30)day basic cure period,
orwithinan extended cure period approved by theGrantor or designee pursuantto subsection (B),
theGrantor or designee shall set a public hearing to determine what sanctionsshallbe applied.In
the event that the Grantee contests the Grantor's assertion that a violation has occurred,and
requests a hearing in accordance with subsection (A)(1)above,the Grantor or designee shallset
a public hearing withinsixty (60)days ofthe Grantor'sreceipt ofthe hearing request to determine
whetherthe violation has occurred,and ifa violation is found,what sanctions shafi be applied.
D.In the case of any hearing pursuant to this section,Grantor shall notifyGrantee of the hearing in
writing and at the hearing,Grantee shall be provided an opportunity to be heard and to present
evidence in its defense.The Grantorshallalso hear any other Person interested therein.
E.The liquidated damages set forth in Section 11.3 of this Agreement may be reduced at the
discretion of theGrantor or designee,takingintoconsiderationthenature,circumstances,extent
and gravityoftheviolationas reflected by one ormoreof thefollowingfactors:
1.Whetherthe violationwas unintentional;
2.Whether substantial harm resulted;
3.Whetherthere is a history of prior violations ofthe same or other requirements;
4.Whetherthereis a history ofoverall compliance;and/or
5.Whethertheviolation was voluntarily disclosed,admittedorcured.
O F.If,after the publichearing,Grantor or designee determines that a violation exists,Grantor ordesigneemayutilizeoneormoreofthefollowingremedies:
1.OrderGranteeto corrector remedy theviolationwithina reasonable timeframe as Grantor ordesigneeshalldetermine;
2.Establishthe amount of liquidated damages setforth inSection 11.3,takinginto considerationthecriteriaprovidedforinsubsection(E)of thisSection;provided thatamounts in excess offiftythousanddollars($50,000)shall be subject toSubsection (G)of thisSection;
3.RevokethisAgreement,subjectto subsection(G)ofthisSection;and/or
4.Pursue any other legal or equitableremedy availableunder thisAgreement orany applicablelaw.
G.This Agreement shall not be revoked nor shall liquidated damages in an amount in excess of fiftythousanddollars($50,000)be imposed except byCityCouncil after noticeand hearing as setforthinthisSection.
H.The determination as towhether a violation of thisAgreement has occurred shallbe withinthesolediscretionoftheGrantororitsdesignee,provided thatanysuch finaldetermination shallbesubjecttoreviewbyacourtofcompetentjurisdictionunderapplicablelaw.
11.2 Revocation:Inadditiontoall otherrightsand powersretained by theGrantorunderthis Franchiseorotherwise,the Grantor reserves the right to forfeitand terminatethis Franchise and allrightsandprivilegesoftheGranteehereunder,inwhole or in part,intheevent of â materialViolation of its termsandconditions.Amaterial violation bytheGrantee shall include,but shall not be limitedto,thefollowing:O A.Violation of anymaterialprovision ofthisFranchiseoranyotherAgreement between Grantor andGrantee,or anymaterial rule,order,regulation ordetermination of theGrantor orauthorizedagentmadepursuanttothisFranchiseorotherAgreement;
B.Attempt toevade any material provisionofthisFranchise ortopractice any fraudordeceit upon theGrantororitsSubscribersorcustomers;
C.Failure torestoreservice afterforty-eight(48)consecutive hours ofinterrupted service system-wide,except whenapproval ofsuch interruption is obtainedfromthe Grantor or designee or iftheoutageisbeyondthecontroloftheGrantee;
D.Material misrepresentation of fact in the application for or negotiationof this Franchise;or
E.IfGrantee becomes insolvent,or thesubject of a bankruptcy proceeding.
11.3 Liquidated Damages:
A.Amounts.Because the Grantee's failure to complywith provisionsof theAgreement willresultininjunjtotheGrantor,and because it willbe difficulttoestimate theextent of such injuryin certaininstances,theGrantor and the Grantee agree tothefollowing liquidated damages for thefollowingviolations.These damages represent both parties'best estimate ofthedamages resulting from thespecifiedinjury.
1.For violation of applicable customer service standards:twenty-fivedollars ($25)per violationperdaymultipliedbythenumberofaffectedSubscribers,which after recovery ofcosts andfees,shallbe used by Grantor to provide refunds tosuch Subscribers.
2.For all other material violationsof thisAgreement,otherthanthosespecified in thissection,forwhich actual damages maynot be ascertainable:two-hundredfiftydollars ($250)per dayforeachprovisionofthisAgreementthatisviolated.
B Date ofViolation.Notice and Opportunity toCure.The date of violationwillbe thedate ofthe eventandnotthedatetheGranteereceivesnoticeoftheviolation,provided,if Grantor has actualknowledgeoftheviolationandfailstogivetheGranteethenoticecalledforherein,thenthe dateoftheviolationshallbenoearlierthanten(10)business days before theGrantor gives Granteethenoticeoftheviolation.The Grantormust provide writtennoticeofa violation.Uponreceipt ofnotice,the Grantee willhave a periodof thirty(30)days tocure the violation orthirty(30)days to present
totheGrantora reasonable remedialplan.The Grantor shall decide whether toaccept or reject the
remedial plan presented bytheGrantee.Liquidated damages occuronly inthe eventthateithera
cure has not occurred within thirty(30)days or the Grantor rejects the plan.The procedures
provided in Section 11,shall be utilizedto impose any liquidated damages.
C.Collectionof Liquidated Damages.The collectionofliquidated damages by theGrantor shallin no
respect affect:
1,Compensation owed to Subscribers;or
2.The Grantee's obligation tocomply with allof the provisionsof thisAgreement or applicable
law;or
3.Other remedies available to theGrantor.
11.4 Receivership and Foreclosure:
A.At the optionof Grantor,subjecttoapplicable law,this Agreement may be revoked one-hundred
twenty(120)days after the appointmentof a receiver or trustee totake over and conduct the
business of Grantee whether in a receivership,reorganization,bankruptcy or other action or
proceedingunless:
1.The receivership or trusteeshipis vacated within one-hundred twenty (120)days of
appointment;or
2.The receiver(s)ortrustee(s)have,withinone-hundred twenty(120)days after theirelection or
appointment,fully compliedwith all the terms and provisions of this Agreement,and have
remediedall violations under theAgreement.Additionally,the receiver(s)or trustee(s)shall
have executed an agreement duly approved by the court having jurisdiction,by which the
receiver(s)ortrustee(s)assume andagree tobe bound by each and every termand provision
of thisAgreement.
B.Ifthereis a foreclosureorother involuntarysale ofthewholeorany partoftheplant,property and
equipmentofGrantee,Grantormayserve noticeof revocation on Grantee andtothe purchaser at
thesale,andtherights and privileges ofGrantee under thisAgreement shallbe revokedthirty(30)
days afterservice of such notice,unless:
1.Grantorhas approvedthetransfer of the Agreement,in accordance with the procedures set
forth in thisAgreement and as provided by law,and
2.The purchaser has agreed withGrantor to assurne and be bound by all of theterms and
conditionsofthisAgreement
11.5 No Recourse Against Grantor:Grantee shall nothave any monetary recourse against Grantor or its
officials,boards,commissions,agents or employees forany loss,costs,expenses or damages arising
out of any provisionor requirementofthisAgreementor theenforcement thereof,inaccordance with
theprovisionsofapplicable federal,state and local la¶.The rightsoftheGrantor under thisAgreement
are in addition to,and shallnot be read tolimit,any immunities the Grantormayenjoyunderfederal,
state or local law.
11.6 Nonenforcement by Grantor:Grantee is not relieved of its obligation to complywith any of the
provisions of this Agreement by reason of any failure of Grantor to enforce prompt compliance.
Grantor's forbearance or failure to enforce any provision of thisAgreement shallnot serve as a basis
tostop any subsequent enforcement.The failureofthe Grantor on one or moreoccasions to exercise
a right or torequire complianceor performance under thisAgreement or anyapplicable law shall not
be deemed toconstitutea waiver of such right or a waiver of compliance orperformance,unless such
right has been specifically waived in writing.Any waiver of a violation is not a waiver of any other
violation,whether similar or different fromthatwaived.
11.7 Relationshio of Remedies:The remedies provided for in this Agreement are cumulative and not
exclusive;the exercise of one remedy shall not prevent thee×ercise of another,or any rights of the
Grantor at law or equity.
SECTION12.FRANCHISERENEWAL AND TRANSFER
12.1 Renewal:
A.The Grantor and Grantee agree thatany proceedingsundertakenby the Grantorthatrelate tothe
renewal of Grantee's Agreementshall be governed byand comply with theprovisions ofSection
626 oftheCableActs,unless theproceduresand substantive protections set forth thereinshall be
deemed tobe preempted and superseded bytheprovisions of any subsequentprovision offederal
or state law.
B.In addition totheprocedures set forth insaid Section 826(a),the Grantor agrees to notifyGrantee
ofthe completionofits assessments regardingthe identificationof futurecable-relatedcommunity
needs and interests,as well as thepast performanceof Grantee underthe thencurrentFranchiseterm.Notwithstanding anythingtothecontrary set forth herein,Grantee and Grantor agree thatatanytimeduringthetermofthethencurrentFranchise,while affording thepublic adequate noticeandopportunityforcomment,the Grantor and Grantee may agree to undertake and finalizenegotiationsregardingrenewalofthethencurrentAgreementandtheGrantormaygrantarenewalthereof.Granteeand Grantorconsider the termsset forthin thisSectiontobe consistentwiththeexpressprovisionsofSection626ofthe,Cable Acts.
12,2 Transfer of Ownershioor Control:
0 A.The CableSystem and thisAgreement shall not be sold,assigned,transferred,leased,or disposedof,eitherinwhole or in part,either by involuntary sale or by voluntarysale,merger,consolidation,nor shalltitlethereto,either legal or equitable,or any right,interest,or property therein pass toorvestinanyPersonorentity,withoutthepriorwritten consent ofthe Grantor,which consent shall notbeunreasonablywithheld.
B.The Grantee shallpromptly notifytheGrantor of any actual or proposed change in,ortransferof,or acquisition by anyother partyofcontrolofthe Grantee.The word "control"as used herein is notlimitedtomajoritystockholdersbutincludesactualworkingcontrolinwhatevermannerexercised.A rebuttable presumptionthata transferof controlhas occurred shallarise on theacquisitionoraccumulationbyanyPersonorgroupofPersonsoftenpercent(10%)of theshares or thegeneralpartnershipinterestintheGrantee,except thatthissentence shall notapplyinthecase ofatransfertoanyPersonorgroupalreadyowningatleastatenpercent(10%)interest of the shares or thegeneralpartnershipinterestintheGrantee.Every change,transfer or acquisition of controlof theGranteeshallmakethisFranchisesubjecttocancellationunlessanduntiltheGrantorshallhaveconsentedthereto.
C.The parties to thesale or transfer shallmake a written request tothe Grantor for its approvalof asaleortransferandfurnishallinformationrequiredbylawandtheGrantor.
D.The Grantorshall render a finalwritten decision on the request withinone-hundredtwenty(120)days oftherequest,providedit has received allrequested information.Subjecttothe foregoing,iftheGrantorfailstorenderafinaldecisionontherequestwithinone-hundredtwenty(120)days,such request shall be deemed granted unless the requesting partyand theGrantor agree to anextensionoftime.
E.Within thirty(30)days of any transfer or sale,ifapproved or deemed granted by the Grantor,Grantee shallfilewiththeGrantora copy of thedeed,Agreement,lease or other written instrumentevidencingsuchsaleortransferofownershiporcontrol,certifiedand sworn to as correct byGranteeandthetransferee.
F.In reviewing a request forsale or transfer,the Grantormay inquire into thelegal,technicalandfinancialqualificationsoftheprospectivecontrollingpartyortransferee,and Grantee shallassisttheGrantorinsoinquiring.The Grantor mayconditionsaid sale or transferuponsuch terms andconditionsasitdeemsreasonablyappropriate,provided,however,anysuch termsand conditionssoattachedshallberelatedtothelegal,technical,and financialqualificationsofthe prospectivecontrollingpartyortransfereeandtotheresolutionofoutstandingandunresolvedissuesofnoncompliancewiththetermsandconditionsofthisAgreementbyGrantee.
G.The consent or appmval of theGrantorto anytransferby theGrantee shall notconstitute a waiverorreleaseofanyrightsoftheGrantor,and any transfershall,byits terms,be expresslysubordinatetothetermsandconditionsofthisFranchise.
H.Notwithstanding anything tothecontrary inthisSection,theprior approval of theGrantor shall notberequiredforanysale,assignment or transferof the Agreement or Cable System for cabletelevisionsystemusagetoanentitycontrolling,controlled by or under thesame common controlasGranteeprovidedthattheproposedassigneeortransfereemustshowfinancialresponsibilityasmaybedeterminednecessarybytheGrantorandmustagreeinwritingtocomplywithallprovisionsoftheAgreement
SECTION 13.SEVERABILITY:IfanySection,subsection,paragraph,term or provision of thisAgreementisdeterminedtobeillegal,invalid or unconstitutional byany court of competent jurisdictionor byany state orfederalregulatoryauthorityhavingjurisdictionthereof,such determination shallhave no effect on thevalidityOofanyotherSection,subsection,paragraph,termor provision of thisAgreement,all of which willremain infullforceandeffectforthetermoftheAgreement.
SECTION 14.MISCELLANEOUSPROVISIONS
14.1 Preferential orDiscriminatory Practices Prohibited:Grantee shallnot discriminate inhiring,employmentorpromotiononthebasisofrace,color,creed,ethnic or nationalorigin,religion,age,sex,sexualorientation,marital status,or physical or mental disability.Throughout the termof this Agreement,Grantee shall fullycomplywith allequal employment or nondiscriminationprovisions and requirementsoffederal,state and local law and,inparticular,FCCrules and regulations relating thereto.
14.2 Notices:Throughout the term of the Agreement,Grantee shallmaintain and file with Grantor a
designatedlegal or local address forthe serviceofnotices by mail.Acopyof all noticesfrom Grantor
toGrantee shall be sent,postage prepaid,tosuch address and such notices shallbe effectiveupon the
date of mailing.Attheeffective date ofthis Agreement,such addresses shallbe:
ArtesianDirect Holding Corporation
PO Box 929
Liberty Lake WA 99019
Attn:ChristopherG.Hollingsworth
AIInotices to be sent by Grantee toGrantor under thisAgreement shall be sent,postage prepaid,and
such notices shall be effective upon the date of mailing.At the effective date of thisAgreement,such
address shall be:
City of Moses Lake
PO Drawer 1570
Moses Lake,WA 98837
14.3 Bindina Effect:This Agreement shall be binding upon the parties hereto,theirpermittedsuccessors
and assigns.
14.4 AuthoritytoAmend:This Agreement may be amended at anytimeby writtenagreement between the
parties.
14.5 GoverningLaw:This Agreement shall be governed in all respects by the laws of the State of
Washington.
14.6 Guarantee:The performance oftheGrantee shall be guaranteed in all respects by Altesian Direct
Holding Corporation.The subjoined guarantee shall be executed priortothe effective date hereof.
14.7 Cantions:The captions and headings ofthisAgreement are for convenience and reference purposes
onlyand shallnot affectin any waythe meaningor interpretationof any provisionsofthisAgreement.
14.8 ConstructionofAgreement:The provisionsofthisAgreement shallbe liberallyconstrued topromote
thepublicinterest.
14.9 Entire Agreement:This Franchise contains all oftheagreements of theparties withrespect to any
matter covered or mentioned in this Franchise and no prior or contemporaneous agreements or
understandings pertaining toany such matters shall be effectivefor any purpose.No provision of this
Franchise maybe amended oradded toexcept byagreement in writing signed by both ofthepartÏes.
14.10 Attorney's Fees:Ifany suitor other action is instituted inconnection withanycontroversyarising under
thisFranchise,neither party shallbe entitledtorecover its costs and expenses including attorney's fees.
14.11 Time is of theEssence:Time is oftheessence of thisFranchise and each and all of itsprovisionsin
which performance isa factor.
Adopted by the City Counciland signedby its Mayor ecember 11,001.
Richard Pearce,Mayor
ATTEST:
Ronald Cone,Finance Director
APP ED AS TO FORM:
Jafnes A.Whitaker;CityAttorney