2061_00001ORDINANCE NO.2061
AN ORDINANCE GRANTING A FRANCHISE TO VIDEO INTERNET BROADCASTINGCORPORATIONTOOPERATEANDMAINTAINACABLESYSTEMINTHECITYOFMOSESLAKEANDSETTINGFORTHCONDITIONSACCOMPANYINGTHEGRANTOFFRANCHISE.
THE CITYCOUNCIL OF THE CITYOF MOSES LAKE.WASHINGTON DOES ORDAINAS FOLLOWS:
O Section 1.Findinqs.Video Internet Broadcasting Corporation,doing business as VIB.TV,("VIB.TV"or"Grantee")desires tooperate a cable system in the rights-of-way of theCity of Moses Lake.NegotiationsbetweenVIB.TV and the City have been cornpleted and the franchise process followed in accordance withtheguidelinesestablishedbyapplicablelaw.As a condition of receiving this franchise,Grantee has agreedtoabidebytheCity's current and future lawful policies,ordinances and regulations regarding infrastructure
usage,and street-cuts and rights-of-way.
Section 2.Adoption.This ordinanceshall be known as the Video Internet Broadcasting Corporation 2002Franchiseandshallprovideasfollows.
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 Nonexclusive2.6 Grant of Other Franchises2.7 Police Powers2.8 Relations to Other Provisions ofLaw2.9 Effect of Acceptance2.10 Effect ofChange in the Cable Act
SECTION 3.FRANCHISE FEE AND FINANCIALCONTROLS3.1 Franchise Fee
3.2 Payments
3.3 Acceptance of Payment and Recomputation3.4 Monthly Franchise Fee Reports3.5 Annual Franchise Fee Reports3.6 Interest on Late Payments
3.7 Alternative Remedies
3.8 Additional Commitments NotFranchise Fees3.9 Costs of Publication
3.10 Tax Liability
3.11 Payment onTermination
SECTION 4.ADMINISTRATIONAND REGULATION4.1 Authority4.2 Rates and Charges4.3 Rate Discrimination4.4 Filingof Rates and Charges4.5 Time LimitsStrictly Construed4.6 Performance Evaluation Sessions
SECTION 5.FINANCIALAND INDEMNIFICATIONREQUIREMENTS5.1 Indemnification5.2 Letter of Credit
SECTION 6.CUSTOMER SERVICE6.1 Customer Service StandardsO6.2 .Subscriber Privacy6.3 Local Office-6.4 .Emergency Override
SECTION 7.REPORTS AND RECORDS7.1 Open Records
12 Confidentiality
73 Complaint File and Reports
7.4 Inspection of Facilities
T5 False Statements
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SECTION 8.PROGRAMMING
8.1 Broad Programming Categories
8.2 Parental Control Device
8.3 Leased Access Channels
8.4 Continuity ofService
8.5 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 ServiceAvailability
10.3 Connectionof Public Facilities
SECTION 11.FRANCHISE VIOLATIONS;REVOCATIONOF FRANCHISE
11.1 Procedure for Remedying Franchise Violations
11.2 Revocation
11.3 Liquidated Damages
11.4 Receivership and Foreclosure
11.5 No Recourse Against Grantor
11.6 Nonenforcementby Grantor
11.7 Relationship of Remedies
SECTION 12.FRANCHISE RENEWAL ANDTRANSFER
12.1 Renewal
12.2 Transfer of Ownership 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 Authority toArnend
14.5 Governing Law
14.6 Guarantee
14.7 Captions14.8 Construction of Agreement
14.9 Entire Agreement
14.10..Attorney's.FeeR
14.11 Time is of the Essence
SECTION 1.DEFINITIONS.For the purposes of thisAgreement and all exhibitsattached hereto,the
following terms,phrases,words and their derivations shall have the meaning given herein.When not
inconsistent with thecontext,words used inthepresent tense include the future,words inthe plural include
the singular,and words inthe singular include theplural,Words not defined shall be giventheircommon and
ordinary meaning.The word"shall"is alwaysmandatoryand not merely directory.
1.1 "Aftliiate"when used inconnection with Grantee meansany corporation,person or entity who owns
or controls,is owned or controlledby,or is under common ownership orcontrolwith,Grantee.
1.2 "Basic Service"means any service tier which includes the retransmission of local television
broadcast signals,or as such service tiermay be further defined by federal law.
1.3."Cable Act"mean the Cable Communications Policy Act of 1984 and the Cable Television
Consumer Protection and Competition Act of 1992 and any amendments thereto,including those
contained intheTelecommunications Actof1996,and any future federal cable televisionlegislation.
1.4 "Cable Operator"means any Person or groups of Persons,including Grantee,who provide Cable
Service overa Cable System and directly or throughone or more Affiliatesowna significant interest
in such Cable System or who otherwise control or are responsible for,throughany arrangement,
the management and operation of such a CableSystem.
1.5 "Cable Service"means the one-way transmissionof video programming or other programming
service toSubscribers,and Subscriber interaction,ifany,which is requiredforthe selectíon or use
ofsuch video programmingor other programming service.
1.6 "Cable System"means a facility,consistingof a set of closed transmissionpaths and associated
signal generation,reception,and control equipment thatis designed toprovide Cable Service which
includes video programming andwhich is provided to multipleSubscribers within a community,but
such termdoes not include (1)a facilitythat serves only to retransmitthetelevisionsignals of one
or more televisionbroadcast stations;(2)a facilitythatserves Subscribers without using any public
right-of-way;(3)a facilityofa common carrier which is subject,in whole orín part,to the provisions
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of Title Ilof thefederal CommunicationsAct (47U.S.C.201 et seq.),except thatsuch facilityshallbeconsideredaCableSystem(otherthanfor purposes ofSection 621(c)(47U.S.C.541(c))totheextentsuchfacilityisusedinthetransmissionofvideoprogrammingdirectlytoSubscribers,unlesstheextentofsuchuseissolelytoprovideinteractiveon-demand service;(4)an open video systemthatcomplieswithfederalstatutes;or(5)any facilitiesof any electric utility used solely foroperatingitselectricutilitysystems.
O 1.7 "Channel"means a portion of theelectromagneticspectrum which is used ina Cable System andiscapableofdeliveringatelevisionchannel,as televisionchannel is defined by theFCC in otherapplicableregulations.
1.8 "Downstream"means thetransmissionfrom the Headend to remote points on the Cable System
or to Interconnection points on the Cable System.
1.9 "FCC"means the Federal Communications Commission.
1.10 "Franchise"means the non-exclusive and revocable authorization or renewal thereof for theconstructionoroperationofaCableSystemsuchasisgrantedbythisAgreement,whether suchauthorizationisdesignatedasafranchise,license,resolution,contract,certificate,agreement orotherwise.
1.11 "Franchise Area"means thearea withinthejurisdictionalboundaries ofthe City,including any areasannexedbyGrantorduringthetermofthisAgreement.
1.12 "Gross Revenues"means allamounts accrued by Grantee inwhatever form and from allsources,from the operation of Grantee's Cable System to provide Cable Servicewithinthe franchise area."Gross Revenues"shall include,without limitation,allamountsfor allCable Services,including,butnotlimitedto,basic,expanded basic,premium,and pay-per-view services,advertising sales andinstallationfeesandcharges."Gross Revenues"shall also include any revenue received by anyaffiliateofGranteewheresuchrevenueintheordinarycourseofbusinesshasbeenpaidorshouldhavebeenpaidtoGranteefromtheoperationofitsCableSystemtoprovideCableServicewithinthefranchisearea.Byway of illustration and not limitation,this definition would include revenuederivedfromthesaleofCableSystemadvertisingtimebyanaffiliateofGrantee."GrossRevenues"shallnot include bad debt,sales taxes,or other taxeswhichare collectedby Grantee
on behalf of,and for payment to,thelocal,state or federal government.
1.13 "Headend"means a facilityfor signal reception and dissemination on a Cable System,includingcables,antennas,wires,satellite dishes,monitors,switches,modulators,processors and all otherrelatedequipmentandfacilities.
1.14 "Interconnect"means the provision by Grantee oftechnical,engineering,physical,and all other
necessary componects tomaintaina physical linkingofGrantee's Cable System and Cable Service
oranydesignated channel or signalpathway thereofwith neighboring Cable Systems,so thatCableServiceoftechnicallyadequatequalitymaybesentto,and received from,other systems inaccordancewiththisAgreement.
1.15 "Leased Access Channel"means any channel commercially availableforprogramming 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 educational institution,public or private,including,but not limitedto,primary and secondary schools,andcolleges and universities.
1.18 "§kget"means each ofthefollowing whichhave been dedicated to the public or are hereafterdedicatedtothepublicandmaintainedunderpublicauthorityorbyothersandlocatedwithinthefranchisearea:streets,roadways,highways,avenues,lanes,alleys,sidewalks,easements,rights-of-way and similarpublic property and areas.
O 1.19 "Subscriber"means any person who electstosubscribe to,for any purpose,Cable Service providedbyGranteebymeansof,or in connection with,the Cable System,and whose premises arephysicallywiredandlawfullyactivatedtoreceiveCableServicefromGrantee's Cable System.
A."Commercial Subscriber"which means any subscriber other than residential subscriber.
B."Residential Subscriber"which means any person who receives Cable Service delivered tosingleormultipledwellingunits,excluding such multiple dwelling units billed on a bulk-billingbasis.
1.20 "Uustream"means thecarrying of a transmissiontothe Headend from remote points on theCableSystemorfromInterconnectionpointsontheCableSystem.
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SECTION 2.GRANT OF FRANCHISE
2.1 m
A.This Agreement authorizesGrantee to engage in providing Cable Service,as that term is
defined in47 U.S.C.Sec,522(6),as amended.
B.Grantee promises and guarantees,as a condition of exercising the privileges granted by this
Agreement,thatanyaffiliateor jointventure or partner of the Grantee directly involved inthe
offeringof Cable Service in the franchise area,or directly involved in the management or
operation of the Cable System in the franchise area willalso complywith the terms and
conditions of thisAgreement.
2.2 Use of Public Streets and Wavs:Grantee willprovide a Cable Service withinthefranchise area by
means ofinfrastructure owned and maintained by a thirdparty which party has separately obtained
afranchise from the Citytolocate and maintainitsinfrastructure inthe publicrights-of-way.Grantee
is not granted anypermission to make any use ofthe City's rights-of-way exceptas a user of the
thirdparty's infrastructure upon such terms and conditions as the Granteeand the thirdparty shall
determine.
2.3 Duration:The term of this Agreement and all rights,privileges,obligations and restrictions
pertaining thereto shallbe from theeffectivedate of thisAgreement throughMay 31,2012.
2.4 Effective Date:Theeffective date of thisAgreement shall be June 1,2002,unless Grantee fails to
file an unconditional written acceptance of this Agreement by July 1,2002,in which event this
Agreement shall be null and void,and any and all rights of Grantee to operate a Cable System
withinthe franchise area under thisAgreement are hereby terminated.
2.5 Franchise Nonexclusive:This Agreement shall be nonexclusive,and is subject toa11prior rights,
interests,agreements,permits,easements or licenses granted by Grantor and for such additional
franchisesfor Cable Systems as Grantor deems appropriate,upon such terms and conditions as
Grantor deems appropriate.
2.6 Grant ofOther Franchises:
A.In the event the Grantor enters into a franchise,permit,license,authorization,or other
agreement of any kindwith any other person orentity other thanthe Grantee for the purpose
of constructing or operating a Cable System or providing Cable Service to any part of the
service area,in which the Grantee is actually |5rovidingCable Service under the terms and
conditions ofthisAgreement,the material provisions thereofshall be reasonably comparable
to those contained herein,in order that one operator not be granted an unfair competitive
advantage over another,and toprovide all parties equal protection under the law.
B.IfGräntor gianis a frarionisë foëthird part¶for service to an area that Grântee is not actually
serving or required to extend service to,and which has material provisions that are not
reasonably comparable tothosecontained herein,Grantor shall offerGrantee a franchise to
serve thesame area under terms and conditions thatare reasonably comparable tothose set
forth inthefranchise agreement entered intowiththe thirdparty,
2.7 Police Powers:Grantee's rights hereunder are subjectto the lawful police powers of Grantor to
adopt and enforce ordinances necessary to the safety,health,and welfare of the public,and
Grantee agrees tocomply with all applicable laws and ordinances enacted,or hereafter enacted,
by Grantor or any other legally-constituted governmental unit having lawfuljurisdictionover the
subject matter hereof.Notwithstanding the foregoing,Grantor agrees it will not impose any
regulation pursuant to the Cable Act not contained herein during the termof thisfranchise without
negotiationwith theGrantee and an opportunity for the Grantee toterminatethis franchise rather
than accept further regulation underthe powers granted the Grantorunder theCable Act.
2.8 Relations to Other Provisions of Law:This Franchise Agreement and all rights and privileges
granted under thefranchise are subject to,and the Grantee must exercise all rights in accordance
with,applicablelaw,as amended over the franchise term.However,this franchise is a contract,
subject onlyto the Grantor's exercise of its police and other powers and applicable laW.This
franchise does not confer rights orimmunities upon the Grantee other than as expressly provided
herein.Inthe case ofany conflict between the express terms ofthisFranchise Agreement and any
ordinance of general application enacted pursuantto theGrantor's police power,theordinanceshall
govern.Grantee does not waiveits right to challengethe lawfulness of a particular enactment,
including on the grounds that a particular action is an unconstitutionalimpairment of contractual
rights.The franchise issued and thefranchise fee paid hereunder are not in lieu of any other
required permit,authorization,fee,charge ortax,unless expressly stated herein.
2.9 Effect ofAcceptance:Byaccepting theAgreement,the Grantee:(1)acknowledges and accepts
theGrantor's legal right toissue and enforcetheAgreement;(2)agrees that itwillnot oppose the
Grantor's intervening in any proceeding affectingthe Cable System;(3)accepts and agrees to
comply witheach and every provisionof this Agreement;and (4)agrees thatthe Agreement was
granted pursuant to processes and procedures consistent with applicable law,and that itwillnot
raise anyclaim tothe contrary.
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2.10 Effect of Change inthe Cable Act:This form of franchise is agreed to between the parties owingtotheprovisionsoftheCableActinplaceatthetimeitwasenteredinto.In the event the Cable ActisamendedorotherfederallegislationisadoptedprovidingothermeanstoregulateGrantee'sactivity,theGrantor and Grantee agree to negotiate to implement such other means of regulationofGrantee's activity.
SECTION 3.FRANCHISE FEE AND FINANCIALCONTROLS
3.1 Franchise Fee:As compensationforthe benefits and privileges granted underthisAgreement andinconsiderationofpermissiontouseGrantor's streets,Grantee shall pay as a franchise fee toGrantor,throughoutthe duration of thisAgreement,an amount equal to five percent (5%)ofGrantee's gross revenues derived from the operation of the Cable System toprovide cable serviceinthefranchisearea.Accrual of such franchise fees shall commence as ofthe effective date ofthisAgreement.The franchise fees are in addition to allother fees,assessments,taxesor paymentsofgeneralapplicabilitythattheGranteemayberequiredtopayunderanyfederal,state or local law.This Agreement and the franchise fees paid hereunder are not in lieu of any other generallyapplicablerequiredpermit,authorization,fee,charge or tax.
3.2 Pavments:Grantee's franchise fee payments toGrantorshallbe computedmonthly.Each monthlypaymentshallbedueandpayablenolaterthanthirty(30)days after thelast day of theprecedingmonth.
3.3 Acceptance of Payment and Recomputation:No acceptance of any payment shall be construedasanaccordbyGrantorthattheamountpaidis,in fact,the correct amount,nor shall anyacceptanceofpaymentsbeconstruedasareleaseofanyclaimGrantormayhaveforfurtheroradditionalsumspayableorfortheperformanceofanyotherobligationofGrantee.
3.4 Monthly Franchise Fee Reports:Each payment shall be accompanied by a written report toGrantor,containing an accurate statement insummarized form,as wellas in detail,of Grantee's
gross revenues and the computation of the payment amount.
3.5 Annual Franchise Fee Reports:On an annual basis,upon thirty(30)days'prior written notice,Grantorshall have the rightto conduct an independent auditofGrantee's records reasonably relatedtotheadministrationorenforcementofthisAgreement,in accordance with generally acceptedaccountingprinciples.The City may hire an independent certifiedpublic accountant to audit theGrantee's financial records,in which case the Grantee shall provide all necessary records to thecertifiedpublicaccountant.Ifthe auditshows that franchisee fees have been underpaidby fourpercent(4%)or more,Grantee shall pay the totalcost of the audit.
3.6 Interest on Late Payments:Intheevent that a franchise fee payment or other sum is not receivedbytheGrantoronorbeforetheduedate,or is underpaid,the Granteeshall pay in additiontothepayment,or sum due,interest from thedue date at a rate equal tothe interest rate specified forjudgmentsenteredintheSuperiorCourtoftheStateofWashington.
3.7 Alternative Remedies:Ifany section,subsection,paragraph,termor provision of thisFranchiseAgreementoranyordinance,law,ordocument incorporated herein by reference is held by a courtofcompetentjurisdictiontobeinvalid,unconstitutional or unenforceable,such holding shall beconfinedinitsoperationtothesection,subsection,paragraph,term or provision directly involvedinthecontroversyinwhichsuchholdingshallhavebeenrenderedandshallnotinanywayaffectthevalidityofanyothersection,subsection,paragraph,term or provision hereof.Under such acircumstance,the Grantee shall,uponthe Grantor's request,meet and confer with the Grantor toconsideramendmentstotheFranchiseAgreement.The purpose of the amendments shall be toplacetheparties,as nearly as possible,in theposition thattheywerein prior tosuch determination,consistent withapplicablelaw.In theeventthe partiesare unable toagree toa modificationofthisAgreementwithinsixty(60)days,either partymay either (1)resort to litigation to amend theAgreement;or (2)shorten the Agreement to36 months,at which point either party may invoke therenewalproceduresunder47U.S.C.subsection 546.Each party agrees toparticipate in up tosixteen(16)hours of negotiation during the sixty (60)day period.
3.8 Additional Commitments Not Franchise Fees:No term or condition in thisAgreement shall in anyOwaymodifyoraffectGrantee's obligation to pay franchise fees to Grantor.Although the totalsumoffranchisefeepaymentsandadditionalcommitmentssetforthelsewhereinthisAgreementmaytotalmorethanfivepercent(5%)of Grantee's Gross Revenues in any 12-month period,Granteeagreesthattheadditionalcommitmentshereinarenotfranchisefeesasdefinedunderanyfederallaw,nor are theyto be offset or credited against any franchise fee payments due to Grantor.
3,9 Costs of Publication:Grantee shall pay thereasonable cost ofnewspaper notices and publicationpertainingtothisAgreementandanyamendmentsthereto,as such notice or publication isreasonablyrequiredbyGrantororapplicablelaw.
3.10 Tax Liability:Payment ofthe franchise fees under thisAgreement shall not exempt Grantee fromthepaymentofanygenerallyapplicablelicense,permit fee or other generally applicable fee,taxorchargeonthebusiness,occupation,property or income of Grantee that may be imposed byGrantor.
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3.11 Payment on Termination:Ifthis Agreement terminatesfor any reason,theGrantee shallfilewith
theGrantor withinninety (90)calendar days ofthe date of the termination,a financial statement,
certified byan independent certified public accountant,showing thegross revenues receivedbythe
Grantee since the end of the previous fiscal year.The Grantorreserves theright to satisfy any
remainingfinancial obligations of the Grantee tothe Grantor by utilizingthe funds availablein any
Letter ofCredit or other security provided by the Grantee.
SECTION 4.ADMINISTRATIONAND REGULATION
4.1 A_uthority:Grantor is vested with the power and right to regulate the exercise of the privileges
permitted by thisAgreement inthe public interest,or to delegate that power and right,or any part
thereof,tothe extent permitted under state and local law,to any agent,ín its sole discretion.
4.2 Rates and Charges:AllofGrantee's rates and charges related to or regarding Cable Serviceshall
be subject toregulation byGrantor tothe fullextent authorizedbyapplicable federal,state and local
laws.
4.3 Rate Discrimination:All of Grantee's rates and charges shall be published (inthe form of a
publicly-available rate card),and shall be nondiscriminatory as to all persons and organizations of
similar classes,under similar circumstances and conditions.Grantee shall apply its rates in
accordance with governing law,withsimilar rates and charges for all subscribers receiving similar
Cable Service,without regard to race,color,familial,ethnic or national origin,religion,age,sex,
sexualorientation,marital,militaryor economic status,or physical or mental disability,orgeographic
location in the franchise area.Grantee shall provide equivalent Cable Service to all residential
subscribers at similar rates and to commercial subscribers as authorized by applicablelaws.
Nothing herein shall be construedto prohibit:
A.The temporaryreductionor waiving ofrates or charges in conjunctionwith valid promotional
campaigns;
B.The offeringofreasonable discounts tosenior citizensor economically disadvantaged citizens:
C.Grantee from establishingdifferent and nondiscriminatory rates and charges and classes of
service for commercial customers,as well as different nondiscriminatory monthly rates for
classes of commercialcustomers as allowable by federal law and regulations;or
D.Grantee fromestablishing different and nondiscriminatory rates and charges for residential
subscribers as allowable by federal law and regulations.
4.4 Filinqof Rates and Charges:
A.Throughout thetermofthisAgreement,Grantee shall maintain on filewithGrantora complete
schedule of applicable rates and charges for Cable Service provided under thisAgreement
Nothinginthis subsection shallbe construed torequire Grantee tofile rates and charges under
temporary reductions or waivers of rates and charges in conjunction with promotional
campaigns provided that Grantee shall make reasonable effortstonotifyGrantar inwriting in
advance of such promotions.
B.Grantee shall provide upon request from Grantor a complete schedule of current rates and
charges for any and all leased access channels,or portions of such channels,provided by
Grantee.The schedule shall include a description of the price,terms and conditions
established by Grantee for leased access channels.
4.5 Time Limits Strictiv Construed:Whenever this Agreement sets forth a time for any act to be
performed byGrantee,such timeshall be deemed to be of theessence,and any failure ofGrantee
to perform within the allotted time may be considered a material violation ofthis Agreement and
sufficient grounds for Grantor toinvoke any relevantprovision ofthis Agreement However,in the
event that Grantee is prevented or delayed inthe performance of any of its obligations under this
Agreement by reason beyondthe reasonable control ofGrantee,such as acts ofGod (forexample,
floods,tornadoes,earthquakes or unusually severe weather conditions),Grantee's performance
shall be excused during the force majeure occurrence and Grantee thereafter shall,under the
circumstances,promptly perform the affected obligationsunder this Agreement or procure a
substitute for suchobligation which is satisfactory toGrantor.Grantee shall not be excused bymere
economic hardship nor by misfeasance or malfeasance of its directors,officers or employees.
4.6 Performance Evaluation Sessions:
A.Grantor mayhold regularperformance evaluation sessions annuallyon the anniversarydates
of theeffective date ofthis Agreement.Allsuch evaluation sessions shall be conducted by
Grantor.
B.Special evaluation sessions may be held at any time by Grantor during the term of this
Agreement.
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Page 7
C.Allregular evaluation sessions shall be open tothe public and announced at least one weekinadvanceinanewspaperofgeneralcirculationinthefranchisearea.
D.Evaluation sessions shall deal withthe Grantee's performance ofthe termsand conditions ofthefranchiseandcompliancewithstateandfederallawsandregulations.
E.As part of the annual performance evaluation session,Grantee shall submit to the Grantor aOlistofallcableservicesavailable.Ifthe Grantor has reason tobelieve that a portion or all oftheCableSystemdoesnotmeettheapplicableFCCtechnicalstandards,the Grantor,at its
expense,retainsthe righttoappoint a qualified independent engineer toevaluate and verifythetechnicalperformanceofthecablesystem.
F.During evaluations under this section,Grantee shall fully cooperate with Grantor and shallprovidesuchinformationanddocumentsasnecessaryandreasonableforGrantortoperformtheevaluation.
SECTION 5.FINANCIALAND INDEMNIFICATIONREQUIREMENTS
5.1 Indemnification
A.Scooe ofIndemnity.Grantee shall,at itssolecostand expense,indemnify,holdharmless,anddefendtheGrantoranditsofficers,boards,commissions,agents,and employees against anyandallclaims,including,but not limited to,third party claims,suits,causes of action,proceedings,and judgmentsfor damages or equitablerelief arisingoutofthe operation of itsCableSystemregardlessofwhethertheactoromissioncomplainedofisauthorized,allowed,
or prohibited by this Agreement provided,however,the Grantee will not be obligated toindemnifyGrantorshouldGrantorinterveneinanyproceedingregardingthegrantofthisAgreementpursuanttoSection2.9 of this Agreement.Without limiting in any way theGrantee's obligation to indemnify the Grantor and its officers,boards,commissions,agents,and employees,as set forth above,this indemnity provision also includes damages andliabilitiessuchas:
1.To persons or property,inany way arising out of or throughthe acts or omissions oftheGrantee,its contractors,subcontractors and theirofficers,employees,or agents,or towhichtheGrantee's negligence shall in anyway contribute;
2.Arising out of any claim for invasion of theright of privacy;for defamation of any person,firmor corporation;for the violation or infringement of any copyright,trademark,tradename,service mark,or patent;for a failure bythe Grantee to secure consents from theownersorauthorizeddistributorsofprogramstobedeliveredbytheCableSystem;or forviolationofanyotherrightofanyperson;
3.Arising out of Grantee's failure tocomply withthe provisions of any federal,state or localstatute,ordinance,rule orregulation applicabletothe Grantee withrespect toany aspectofitsbusinesstowhichthisAgreementapplies;and
4.Arising from any thirdparty suit,action or litigation,whether brought by a competitor toGranteeorbyanyotherpersonorentity,whether such person or entity does or does nothavestandingtobringsuchsuit,action or litigation if such action (1)challenges theauthorityoftheGrantortoissuethisAgreementtoGrantee;or (2)allegesthat,in issuingthisAgreementtoGrantee,theGrantor has acted in a disparate ordiscriminatory manner.
B.Duty toGive Notice and Tender Defense.The Grantor shall give the Grantee timelywrittennoticeofanyclaimorofthecommencementofanyaction,suit or other proceeding coveredbytheindemnityinthissection.In the event any such claimarises,the Grantor or any otherindemnifiedpartyshalltenderthedefensethereoftotheGranteeandtheGranteeshallhavetheobligationanddutytodefend,settle or compromise any claims arising thereunder,and theGrantorshallcooperatefullytherein.Grantee shall accept or decline the tenderwithin thirty(30)days.Grantee shall reimburse reasonable attorneys'fees and costs incurred by theGrantorduringthethirty(30)day period in which the Grantee accepts or declines tender.In
O the event thattheGrantee declines defense oftheclaiminviolationof Section 5.3,theGrantor
may defend such claim and seek recovery from Grantee itsexpenses for reasonable attorneys'fees and disbursements,including expert witness fees,incurred by Grantor for defense andinseekingsuchrecovery.
5.2 Performance Bond:Upon or before the effective date of this franchise,Grantee shall obtain andmaintainduringtheentiretermofthisfranchise,including anyextensions or renewals thereof,atitsowncostandexpense,a performance bond that shall be filedwith the Grantor inthe amount ofsixthousanddollars($6,000)as guarantee for the faithfulperformance by itof allthe provisions ofthisfranchise.Such bond shall be reviewed at the end of sixty (60)months.The amount of thebondshallbesetfortheremainderofthefranchisetermatthegreaterofsixthousanddollars($6,000)or the amount offranchise fees paid inthesixtieth month.
Ordinance No.2061
Page 8
SECTION 6.CUSTOMER SERVICE
6.1 Customer Service Standards:The Grantee shall meet or e×ceed any customer service standards
adopted by theFCC and,to the extent the same are stricteror address different matters,those
adopted now or in thefuture bythe Grantor.
6.2 Subscriber Privacy:Grantee will comply withprivacy rights of subscribers in accordance with
federal,state and local law.
6.3 Local CustomerAccess:Throughout theAgreement term,the Grantee shall provide telephones
and other equipment so thatcustomer complaints and service requests can be receivedbyGrantee
ona twenty-four(24)hour basis at a toll-freetelephonenumber.
6.4 EmergencyOverride:TheGrantee shall maintain systems,equipment,and procedures permitting
preempting of the regular signal onallchannelswithemergency warning signals originating from
theGrant County Emergency Services (GCES).Thefollowing stipulations shall apply,exceptwhere
and towhat extent theymay be preempted by FCC regulations:
A,The Director of the GCES shall determine when the Emergency Cable Override is to be
activated in response to actual or impending emergency conditions.
B.The Grantee shall provide and maintainall equipment,systems,software,services,security
provisions,and procedures required for a fullyoperational emergency cable override warning
system inaccordancewith FCC rules,Anyequipment necessary for activationof the system
bytheGCES shall be provided bythe Grantor.Activation points shall be atthe GCES and one
other backup pointwithin theGrant County area,as mutuallyagreed upon by the parties.
C.The cableoverride shall consistof audio and crawler text signals as required by the Federal
Communications Commission rules governing the new Emergency Alert System (EAS).
D.The system shall be testedas determined by the GCES not morethanmonthly and not less
thanannually.
E.The Grantee shallcooperatefullywiththeGCES inall othermatters pertainingtoa functioning
emergency cable override system.
F.Should theowner oftheinfrastructure which is themeans oftransmissionoftheCable Service
authorized in thisAgreementprovide the emergency override acceptable tothe GCES,then
the Grantee shall have no further obligation under this provision.
SECTION 7.REPORTS ANDRECORDS:
7.1 Open Records
A.Grantee shallmanage allof itsoperationsinaccordance witha policyof keeping its documents
and records open and accessible to City.City shall have access to,and the rightto inspect,
any books and records of Grantee,its parent corporations and affiliated entitieswhichare
reasonably related and necessary to the administration or enforcementof theterms of this
Agreement Grantee shall not deny City access to any such records of Grantee on the basis
thatGrantee's recordsare underthe control of any parent corporation,affiliatedentityor a third
party related to thisAgreement.Citymay,in writing,request copies of any such records or
books and Grantee shall provide such copies within thirty(30)days ofthe transmittalof such
request.One copy of all reports and records required under this or any othersection shall be
furnished to Cityat the sole expense of Grantee.Ifthe requested books and records are too
voluminous,or for security reasons cannot be copied or removed,thenGrantee may request,
in writingwithin ten(10)days,that Cityinspect themat one of Grantee's localarea offices.If
any books or records of Grantee are not kept in a local area office and not made available in
copies to City upon written request as set forth above,and if City determines that an
examinationof such records is necessary or appropriate to the performance of any of City's
duties,administrationor enforcement of thisAgreement,thenall reasonable travelexpenses
incurred in making such examination shall be paid by Grantee.If any books or records of
Grantee are not kept in a local office,Grantee willprovide or otherwisemake such documents
available for inspection and review at the local office withinten(10)workingdays.
7.2 Confidentiality:Cityagrees totreatas confidential any books and records thatconstitute proprietary
or confidential information under federal or state law,tothe extent Grantee makes City aware of
such confidentiality.Grantee shallbe responsible for clearlyand conspicuously stamping theword
"Confidential"on each page thatcontains confidential orproprietary information,and shall provide
a briefwrittenexplanation as towhy such information is confidential under state or federal law.If
Cityreceivesa demand from any person fordisclosure of any information designated by Grantee
as confidential,Cityshall,so far as consistent with applicable law,advise Grantee inadvance so
thatGrantee may take appropriatesteps toprotectits interests and provide Grantee witha copy of
anywritten request by the party demanding access tosuch information within a reasonable time.
Ordinance No.2061Page9
Untilotherwise ordered bya court or agency ofcompetentjurisdiction,Cityagrees that,totheextentpermittedbystateandfederallaw,it shall deny access to any of Grantee's books and recordsmarkedconfidentialassetforthabovetoanyperson.
7.3 Complaint File:
A.Grantee shallkeep an accurate and comprehensive file ofany and allcomplaintsregardingtheCableSystemasrequiredbytheFCC.
7.4 Inspection of Facilities:Citymay inspect upon request any of Grantee's facilities and equipment toconfirmperformanceunderthisAgreementatanyt¡meupon at least forty-eight (48)hours notice,
or,in case of an emergency,upon demand without prior notice.
7.5 False Statements:Any intentional false or misleadingstatement or representation in any reportrequiredbythisAgreementmaybedeemedamaterialviolationofthisAgreementandmaysubjectGranteetoallremedies,legal or equitable,which are available to City under this Agreement orotherwise.
SECTION 8.PROGRAMMING
8.1 Broad Programming Categories:
A.Grantee's cable televisionsystemshall provide the widest diversity of programming possible.Granteeshallprovide atleast thefollowingbroad categories of programming totheextent suchcategoriesarereasonablyavailable:
1.Educational programming;2.Washington State news and information;
3.Sports;
4.General entertainment (includingmovies);5.Children/family-oriented;
6.Arts,culture and performing arts;7.Foreign language;
8.Scienceldocumentary;
9.Weather information;10.Programming addressed todiverse ethnicand minority interests in the franchise area;and11,National,state,and local government affairs.
B.Grantee shall not delete any broad category of programming within its control.
8,2 Parental Control Device:Upon request by any subscriber,Grantee shall,without charge,fullyscrambleorotherwisefullybiocktheaudioandvideoprogramrningofeachchannelcarryingsuchprogrammingsothatonenotasubscriberdoesnotreceiveit.Upon request by a subscriber,Grantee may install a filtertoblock at least the video of certain channels a subscriber subscribestobutfindsobjectionable.
8.3 Leased Access Channels:Grantee shall meet the requirements for leased access channelsimposedbyfederallaw.
8.4 Continuity of Service:
A.Itshallbe the right ofall subscribers to continueto receivecable service from Grantee insofar
as theirfinancial and otherobligationsto Grantee are satisfied.Subject tothe force majeureprovisionsofthisAgreement,Grantee shalluse its best efforts toensure thatallsubscribersreceivecontinuous,uninterrupted cable service.
B.Intheevent ofa change inownership,or inthe event a new cable operator acquires theCableSysteminaccordancewiththisAgreement,Grantee shall cooperate with City and such newcableoperatorinmaintainingcontinuityofservicetoallsubscribers.
8,5 Grantee shall retransmitall closed-captioned signalsmadeavailable byprogrammers inconjunctionwithprogramminginitsline-up and which are requiredtobe carried bythe FCC inordertofacilitateviewingbyhandicappedpersons.Grantee shall comply with theAmericans With DisabilitiesAct,
any amendments thereto and any other applicable federal,state or local laws or regulations.Grantee shall maintain the necessary head-end equipment to make SAP features available tosubscribers.Grantee's obligationsunder thissubsection do not extend to providing customerpremisesequipment.
8,6 Communitv Programming Needs:Atthe request of the Mayor,but no morethan twice,ninety (90)days after such request,theGrantee shall furnish toallsubscribersalong withtheirmonthly servicestatement,a list of broad categories of programming,and other services availableto Grantee,subject to prior review by the Mayor.The menu to be inthe format of a mailback survey for
Ordinance No.2061
Page 10
determination of the subscriber's programming preference.The results of the survey are to be
provided the City by the Grantee with any proposed change(s)in programming to accommodate
subscriber's desired revisions as indicated bythe results of the survey,
8.7 Categorv Agreement:The parties expresslyagree thatthe programming describedinparagraph
8.1 represent broad categories of video programming within the meaning of47 U.S.C.544(b)(2)
(B).
SECTION 9.TEST ANDCOMPLIANCEPROCEDURES
Upon request,Grantee shall advise Grantor of schedules and methodsfor testing the cable system on a
regular basis to determine compliance withthe provisions of applicable FCC technicalstandards.Tests may
be witnessed by representatives of Grantor,and written test reports may be made available to Grantor upon
request.
As requiredby FCC Rules,Grantee shall conduct proof of performance tests and cumulative leakage index
tests designed to demonstrate compliancewith FCC requirements.Grantee shallprovide Grantor summary
written reports of the results of such tests.
SECTION 10.SERVICE EXTENSION,CONSTRUCTION,AND INTERCONNECTION
10.1 Equivalent Service:It is Grantee's general policythat all residential dwelling units in thefranchise
area have equivalent availabilityto cable service from Grantee's cable system under
nondiscriminatory rates and reasonable terms and conditions.Grantee shall not arbitrarily refuse
to provide cable service toany person within its franchise area.
10.2 Service Availability:New Construction.Grantee shall provide cableservice in newly constructed
areas as soon as the infrastructure carrying Grantee's cable service is installed and operational.
10.3 ConnectionofPublic Facilities:Granteeshall,at no cost toGrantor,provide at least one (1)outlet
of Basic and expandedbasic programmingtoallCity/Grant County buildíngs,as designated bythe
Grantor,and all libraries and schools.In addition,Grantee shallprovide,at no cost tothe building
owner,one (1)outletof Basic and expanded basic programming toall such future publicbuildings.
OutletsofBasic and expanded basic programming provided inaccordancewiththissubsection may
be used to distribute cable service throughoutsuch buildings,provided such distribution can be
accomplished without causing cable system disruption and general technical standards are
maintained.
SECTION 11.FRANCHISE VIOLATIONS:REVOCATION OF FRANCHISE
11.1 Procedurefor Remedying Franchise Violations:
A.If Grantor reasonably believes thatGrantee has failed to perform any obligationunder this
franchise or has failed to perform in a timelymanner,Grantor shall notify Grantee inwriting,
stating with reasonable specificity the nature ofthe alleged violation.Granteeshall have thirty
(30)days from thedate of receipt of such notice to:
1.Respond to Grantor,contesting Grantor's assertion that a violation has occurred,and
request a hearing in accordance with subsection C below;or
2.Cure the violation;or
3.NotifyGrantor that Grantee cannot cure the violation withinthethirty(30)days,because
of the nature of theviolation and notifytheGrantor in writing of what steps the Grantee
shall taketocuretheviolation includingtheGrantee's projected completion date forsuch
cure.In such case,Grantor shall set a hearing date withinthirty(30)days of receipt of
such response in accordance with subsection B.below.
B.In the event that the Grantee notifies the Grantor that it cannot cure the violation within the
thirty (30)day cure period,Grantor or its designee shall set a public hearing within thirty(30)
days of Grantor's receipt of such notice to review and determine whether the Grantee has
taken reasonable steps to cure the violation and whether the Grantee's proposed plan and
completion date for cure are reasonable.Inthe event such plan and completion date arefound
to be reasonable,the same shall be approved by the Grantor.
C.In theevent that the Grantee fails to cure theviolation within thethirty(30)day basic cure
period,or within an extended cure period approvedby the Grantor or designee pursuant to
subsectionB,theGrantor or designee shallset a public hearing todetermine what sanctions
shall be applied.Inthe event thatthe Grantee contests theGrantor's assertionthata violation
has occurred,and requests a hearing in accordance withsubsection A.L above,the Grantor
or designee shall set a publichearing within sixty(60)days of the Grantor's receiptof the
hearing request to determine whetherthe violation has occurred,and if a violation is found,
what sanctions shall be applied.
Ordinance No.2061Page11
D.In thecase of any hearing pursuant tothissection,Grantor shall notify Grantee ofthe hearinginwritingandatthehearing,Grantee shall be provided an opportunity to be heard and topresentevidenceinitsdefense.The Grantor shall also hear any other person interestedtherein.E.If,after thepublic hearing,Grantor or designee determines that a violation exists,Grantor ordesigneemayutilizeoneormoreofthefollowingremediessubjecttoGrantee's rightsunderfederal,state or local law toappeal such determination:
1.Order Grantee to correct or remedy the violationwithin a reasonable timeframe asGrantorordesigneeshalldetermine;
2.Revoke thisfranchise,subject tosubsection F.of thissection;and/or
3.Pursue any other legal or equitable remedy available under this franchise or anyapplicablelaw,
F.This franchise shall not be revoked except byCityCouncil after notice and hearing as set forthinthissectionandinaccordancewiththeCableActandotherapplicablelaw.
G.The determination as towhether a violation ofthisfranchise has occurredshall be withinthesolediscretionoftheGrantororitsdesignee,provided thatany such finaldetermination shallbesubjecttoreviewbyacourtofcompetentjurisdictionunderapplicablelaw
11.2 Revocation:Inaddition to all other rights and powers retained bythe Grantor under thisfranchise
or otherwise,theGrantor reserves the right toforfeitand terminatethisfranchise and all rights andprivilegesoftheGranteehereunderintheeventofamaterialviolationofitstermsandconditions.A material violation by the Grantee shall include,but shall not be limitedto,the following:
1.Violationofany materialprovision ofthisfranchise or any other franchise between Grantor andGrantee,or any material rule,order,regulation or determination of the Grantor or authorizedagentmadepursuanttothisfranchiseorotheragreement;
2.Attemptto evade any material provision of thisfranchise or topractice any fraud ordeceit upontheGrantororitssubscribersorcustomers;O 3.Material misrepresentationof fact in the application for or negotiation ofthis franchise;or
4.IfGrantee becomes insolvent,or the subject of a bankruptcy proceeding.
11.3 Removal:
A.In theevent of termination,expirationor revocation ofthisfranchise,Grantor may ordertheremovaloftheabove-ground cable system facilities and such underground facilities asrequiredbyGrantorinordertoachievereasonableengineeringorstreet-use purposes,fromthefranchiseareaatGrantee's sole expense.Grantee shall have one (1)nine (9)monthperiodwithinwhichtosell,transferor convey its Cable System toa qualified purchaser,ortoremoveitsplant,structures and equipment from the Grantor's streets and otherpublic places
as directed by the Grantor.During thisperiod whichshall run from the effective date of thefinal,non-appealable order ordecision of the CityCouncilor a court ofcompetent jurisdictionimposingtermination,theGrantee shall have theabilitytooperate the Cable System pursuanttotheprovisionsofthisfranchise.In removing its plant,structures and equipment,Granteeshallrefill,at its own expense,any excavation that is made by itand shallleave all streets,publicplaces and private property in as good a conditionas that prevailing priorto Grantee'sremovalofitsequipment,
B.IfGrantee fails tocompleteanyrequired removal pursuantto SubsectionA.tothesatisfactionofGrantor,Grantor maycause the work to be done and Grantee shall reimburse Grantorforthereasonablecostsincurredwithinthirty(30)days after receipt ofan itemized listof thecostsorGrantormayrecoverthecoststhroughthesecurityprovidedbyGrantee.
11.4 Receivership and Foreclosure
A.At theoption ofGrantor,subjecttoapplicable law,thisfranchise maybe revokedone-hundredtwenty(120)days after the appointment of a receiver or trustee totake over and conduct thebusinessofGranteewhetherinareceivership,reorganization,bankruptcy or other action orproceedingunless:
1.The receivership or trusteeship is vacated within one-hundred twenty (120)days ofappointment;or
2.The receiver(s)or trustee(s)have,within one hundred twenty (120)days after theirelectionorappointment,fullycomplied with allthe termsand provisionsofthisfranchise,and have remedied all violations under the Franchise.Additionally,the receiver(s)or
Ordinance No.2061
Page 12
trustee(s)shall have executed an agreement duly approved by the court having jurisdiction,
bywhichthe receiver(s)ortrustee(s)assume and agree to be bound by each and every term
and provision ofthisfranchise.
B.Ifthere is a foreclosureorother involuntary sale of thewhole or any part oftheplant,property
and equipmentof Grantee,Grantor may serve notice of revocation on Grantee and to the
purchaser at the sale,and the rightsand privileges of Grantee under thisfranchise shall be
revoked thirty(30)days after service ofsuch notice,unless:
1.Grantor has approved the transferofthe franchise,inaccordance with the procedures set
forth in thisfranchise and as provided by law;and
2.The purchaser has agreed with Grantor toassume and be bound byallofthe terms and
conditionsof thisfranchise.
11.5 No Recourse Against Grantor:Except where otherwise provided herein,Grantee shall nothave any
monetary recourse against Grantor or its officials,boards,commissions,agents or employees for
anyloss,costs,expenses or damages arising out of any provision or requirementof thisfranchise
or the enforcement thereof,in accordance with the provisions of applicable federal,state and local
law.The rightsofthe Grantor under thisfranchise are inaddition to,and shall not be read tolimit,
anyimmunities the Grantor may enjoy under federal or state law.
11.6 Nonenforcement by Grantor:Grantee is not relieved of its obligation to complywith any of the
provisions of thisfranchise by reason of any failure of Grantor to enforce prompt compliance.
Grantor's forbearance or failure to enforce any provision ofthisfranchise shall not serve as a basis
to stop any subsequent enforcement.The failure of the Grantor on one or more occasions to
exercise a right orto requirecompliance or performanceunder thisfranchiseor any applicable law
shall not be deemed toconstituteawaiver of suchrightor a waiverofcompliance or performance,
unless such right has been specifically waivedinwriting.Anywaiver of a violation is not a waiver
of any other violation;whether similar or different from thatwaived.
11.7 Relationship of Remedies:The remedies provided for in this franchise are cumulativeand not
exclusive;the exercise of one remedy shall not prevent the exercise ofanother,orany rightsofthe
Grantor at law or equity.
SECTION 12.FRANCHISE RENEWALANDTRANSFER
12.1 Renewal:
A.The Grantor and Grantee agree that any proceedingsundertaken by the Grantorthat relate
totherenewalof Grantee's agreement shall be governed by and comply withtheprovisions
of Section626 ofthe Cable Act,unless the procedures and substantive protections set forth
thereinshall be deemed tobe preempted,and superseded bythe provisions ofany subsequent
provision of federal or state law.
B.In additiontothe procedures set forth in said Section 626(a),the Grantor agrees to notify
Grantee ofthecompletion ofits assessments regarding theidentificationoffuturecable-related
communityneeds and interests,as well as the past performance of Grantee under the then
current franchise term.Notwithstanding anythingtothecontrary set forth herein,Grantee and
Grantor agree thatat any timeduring the termofthethencurrent franchise,while affording the
public adequate notice and opportunity for comment,the Grantor and Grantee may agree to
undertake and finalize negotiations regarding renewal ofthe thencurrentAgreement and the
Grantor maygrant a renewal thereof.Grantee and Grantor consider the termsset forth inthis
section to be consistent withthe express provisions of Section 626 oftheCable Act.
12.2 Transfer ofOwnership or Control:
A.The Cable System and this Agreement shall not be sold,assigned,transferred,leased,or
disposed of,eitherin whole or in part,either by involuntary sale or by voluntary sale,merger,
consolidation,norshalltitlethereto,eitherlegal or equitable,or any right,interest,or property
thereinpass to or vest in any person or entity,without the priorwritten consent ofthe Grantor,
which consent shall not be unreasonablywithheld.
B.The Grantee shall promptly notifythe Grantor ofany actual or proposed change in,or transfer
of,or acquisition by any other party of control ofthe Grantee.The word "control"as used
herein is not limitedto majoritystockholders but includes actualworking control in whatever
manner exercised.A rebuttable presumption thata transferofcontrol has occurredshall arise
on the acquisition oraccumulationbyany person or groupof persons often percent (10%)of
the shares or the general partnership interest inthe Grantee,except thatthis sentence shall
not applyinthe case ofa transferto any person orgroup already owning at least a ten percent
(10%)interest oftheshares orthegeneral partnership interest inthe Grantee.Every change,
transferoracquisition ofcontrol oftheGrantee shallmake thisfranchise subject tocancellation
unless and untilthe Grantor shall have consented thereto.
Ordinance No.2061
Page 13
C.The parties tothe sale or transfershall make a written request tothe Grantor for its approvalofasaleortransferandfurnishallinformationrequiredbylawandtheGrantor.
D.The Grantor shall render a final written decision on the request withinone-hundredtwenty(120)days of the request,provided it has received all requested information.Subject to theforegoing,if the Grantor fails to render a final decision on the request within one-hundredtwenty(120)days,such request shallbe deemed granted unless the requesting party and theGrantoragreetoanextensionoftime.
E.Within thirty(30)days of anytransferor sale,ifapproved or deemed granted by the Grantor,Grantee shall file with the Grantor a copy of the deed,agreement,lease or other writteninstrumentevidencingsuchsaleortransferofownershiporcontrol,certified and sworn toascorrectbyGranteeandthetransferee.
F.In reviewinga request for sale or transfer,the Grantormay inquire into thelegal,technicalandfinancialqualificationsoftheprospectivecontrollingpartyortransferee,and Grantee shallassisttheGrantorinsoinquiring.The Grantor maycondition said sale or transferupon suchtermsandconditionsasitdeemsreasonablyappropriate,provided,however,any such termsandconditionssoattachedshallberelatedtothelegal,technical,and financial qualificationsoftheprospectivecontrollingpartyortransfereeandtotheresolutionofoutstandingandunresolvedissuesofnoncompliancewiththetermsandconditionsofthisAgreementbyGrantee.
G.The consent or approval of the Grantor to any transferby theGrantee shall not constitute awaiverorreleaseofanyrightsoftheGrantor,and any transfershall,by its terms,be expresslysubordinatetothetermsandconditionsofthisfranchise.
H.Notwithstanding anythingtothecontrary inthissection,theprior approval of theGrantor shallnotberequiredforanysale,assignment or transferof the Agreement or Cable System forcabletelevisionsystemusagetoanentitycontrolling,controlled byor under thesame commoncontrolasGranteeprovidedthattheproposedassigneeortransfereemustshowfinancialresponsibilityasmaybedeterminednecessarybytheGrantorandmustagreeinwritingtocomplywithallprovisionsoftheAgreement.
SECTION 13,SEVERABILITY:Ifany section,subsection,paragraph,term or provision of thisAgreementisdeterminedtobeillegal,invalid or unconstitutional by any court of competent jurisdictionor by any state orfederalregulatoryauthorityhavingjurisdictionthereof,such determination shall have no effecton thevalidityofanyothersection,subsection,paragraph,termor provision ofthisAgreement,all of which willremain infullforceandeffectforthetermoftheAgreement.
SECTION 14.MISCELLANEOUSPROVISIONS
14.1 Preferential or Discriminatory Practices Prohlbited:Grantee shall not discriminate in hiring,employment or promotion on thebasis of race,color,creed,ethnic or national origin,religion,age,sex,sexual orientation,marital status,or physical or mental disability.Throughout the termof thisAgreement,Grantee shall fullycomply withall equal employment or nondiscriminationprovisionsandrequirementsoffederal,state and local law and,in particular,FCC rules and regulationsrelatingthereto.
14.2 Notices:Throughout thetermof the Agreement,Grantee shall maintain and filewith Grantor adesignatedlegalorlocaladdressfortheserviceofnoticesbymail.A copy of all notices fromGrantortoGranteeshallbesent,postage prepaid,to such address and such notices shallbeeffectiveuponthedateofmailing.Atthe effective date ofthisAgreement,suchaddresses shall be:
Video Internet Broadcasting Corporation
135 Basin Street SWEphrataWA98823Attn:W.KellyRyan,CEO
Allnoticesto be sent by Grantee to Grantor under thisAgreement shall be sent,postage prepaid,O and such noticesshall be effectiveupon the date of mailing.Atthe effective date ofthisAgreement,such address shallbe:
CityofMoses LakePODrawer1570MosesLake,WA 98837
14.3 Binding Effect:This Agreement shall be binding uponthe parties hereto,theirpermitted successorsandassigns.
14.4 Authority toAmend:This Agreement may be amended at any timeby written agreement betweentheparties.
14.5 Governinq Law:This Agreement shall be governed in all respects by the laws of the State ofWashington.
Ordinance No.2061
Page 14
14.6 Guarantee:The pedormance ofthe Grantee shall be guaranteed inall respects by Video Internet
Broadcasting Corporation.The subjoined guarantee shallbe executed prior tothe effective date
hereof.
14.7 Captions:The captions and headings of this Agreement are for convenience and reference
purposes only and shall not affect in any way the meaning or interpretation of any provisions ofthis
Agreement.
14.8 Construction of Agreement:The provisions of thisAgreement shall be liberally construed to
promote the public interest.
14.9 Entire Agreement:This franchise contains allof theAgreements of the parties with respect toany
mattercovered or mentioned in this franchise and no prioror contemporaneous agreements or
understandings pertaining to any such matters shall be effective for any purpose.No provision of
this franchise may be amended or added to except by agreement inwritingsigned by both of the
parties.
14.10 Attornev's Fees:If any suit or other action is instituted in connectionwith any controversy arising
under this franchise,neither party shall be entitled to recover its costs and expenses including
attorney'sfees.
14.11 Time Is of the Essence:Time is oftheessence ofthisfranchise and each and all of its provisions
in which performance is a factor.
Adopted by theCityCouncil and signed by its Mayor on May 14,2002.
'ee BlaclaiiÏ\,Mayor
A
onild C.Cone,$inance Director
APP VED AS TO FO
mes A.hitaker,CityAttorney
ACCEPTED BYVIDEO INTERNET BROADCASTINGCORPORATION
DATE:>\OL
By:W.KellyRyan '
Chief Executive Officer
O