2067_00001ORDINANCE NO.2067
AN ORDINANCE GRANTINGA FRANCHISE TO POWERTELNET COMMUNICATIONS,INC.TO OPERATE AND MAINTAINA CABLE SYSTEM IN THE CITY OF MOSES LAKE ANDSETTINGFORTHCONDITIONSACCOMPANYINGTHEGRANTOFFRANCHISE.
THE CITYCOUNCIL OF THE CITYOF MOSES LAKE,WASHINGTON DO ORDAINAS FOLLOWS:
Section 1.Findings.PowerTelNet Communications,Inc.("Grantee")desires to operate an cable system intherights-of-way of theCityof Moses Lake ("City"or "Grantor").Negotiations between Grantee and theCityhavebeencompletedandthefranchiseprocessfollowedinaccordancewiththeguidelinesestablishedbyapplicablelaw.As a condition of receiving thisfranchise,Grantee has agreed to abide by the City's currentandfuturelawfulpolicies,ordinanœs and regulations regarding infrastructure usage,and street-cuts andrights-of-way.
Section 2.Adoption.This ordinance shall be known as the PowerTelNet Communications,Inc.2002Franchiseandshallprovideasfollows.
SECTION1.DEFINITIONS Forthe purposes ofthisAgreement and allexhibits attached hereto,thefollowingterms,phrases,words and theirderivations shall have themeaning given herein.When not inconsistent withthecontext,words used in thepresent tense include the future,words inthe plural include the singular,andwordsinthesingularincludetheplural.Words not defined shall be given theircommon and ordinary meaning.The word "shall"is always mandatory and not merely directory.
1.1 "Affiliate"when used in connection with Grantee means any corporation,Person or entity who ownsorcontrols,is owned or controlledby,oris under common ownership or control with,Grantee.
1.2 "Basic Service"means anyservicetierwhichincludes theretransmissionoflocal televisionbroadcastsignals,or as such service tiermay be further defined by federal law.
1.3 "Cable Act"mean theCable Communications PolicyActof 1984 and theCable Television ConsumerProtectionandCompetitionActof1992andanyamendmentsthereto,including those contained intheTelecommunicationsActof1996,and any future federal cable televisionlegislation.
1.4 "Cable Operator"means any Person or groups of Persons,including Grantee,who provide CableServiceoveraCableSystemanddirectlyorthroughoneormoreAffiliatesownasignificantinterest .insuch Cable System or who otherwise control or are responsible for,throughany arrangement,themanagementandoperationofsuchaCableSystem.
1 5 "Cable Service"means theone-way transmissionofvideo programming orother programming service
O toSubscribers,and Subscriber interaction,ifany,which is required for the selection or use of suchvideoprogrammingorotherprogrammingservice.
1.6 "Cable System"means a facility,consistingof a set of closed transmissionpaths and associatedsignalgeneration,reception,and control equipment thatis designed toprovide Cable ServicewhichincludesvideoprogrammingandwhichisprovidedtomultipleSubscriberswithinacommunity,butsuchtermdoesnotinclude(1)a facilitythat serves onlytoretransmit thetelevisionsignals of one ormoretelevisionbroadcaststations;(2)a facilitythatserves Subscribers without using any publicright-of-way;(3)a facilityof a common carrier which is subject,inwhole or inpart,to theprovisions of TitleIIofthefederalCommunicationsAct(47 U.S.C.201 et seq.),except that such facility shall beconsideredaCableSystem(otherthan for purposes of Section 621(c)(47U.S.C.541(c))to theextentsuchfacilityisusedinthetransmissionofvideoprogrammingdirectlytoSubscribers,unlesstheextentofsuchuseissolelytoprovideinteractiveon-demand service;(4)an open video systemthatcomplieswithfederalstatutes;or (5)any facilities ofany electricutilityused solelyfor operatingitselectricutilitysystems.
1.7 "Channel"means a portiortof the electromagnetic spectrum which is used ina Cable Systemand iscapableofdeliveringatelevisionChannel,as televisionChannel is defined by the FCC in otherapplicableregulations.
1.8 "Downstream"means the transmissionfrom the Headend to remote points on the Cable System ortoInterconnectionpointsontheCableSystem.
1.9 "_FC.G."means the Federal Communications Commission.
1.10 "Franchise"means the non-exclusiveand revocable authorization or renewal thereof for theconstructionoroperationofaCableSystemsuchasisgrantedbythisAgreement,whether suchauthorizationisdesignatedasaFranchise,license,resolution,contract,certificate,agreement orotherwise.
O 1.11 "Franchise Area"means the area within thejurisdictionalboundaries ofthe City,including any areasannexedbyGrantorduringthetermofthisAgreement.
1.12 "Gross Revenues"means all amounts accrued by Grantee inwhatever form and from all sources,from the operation of Grantee's Cable System to provide Cable Service within the Franchise Area."Gross Revenues"shall include,without limitation,all amounts for 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 ofillustration and not limitation,thisdefinition would include revenue derivedfromthesaleofCableSystemadvertisingtimebyanAffiliateofGrantee."Gross Revenues"shall
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notinclude bad debt,sales taxes,or other fees,charges or taxeswhich are collectedby Grantee onbehalfof,and for payment to,thelocal,state orfederal government.
1.13 "Headend"means a facilityfor signal reception and dissemination on a Cable System,including
cables,antennas,wires,satellite dishes,monitors,switches,modulators,processors and all other
related equipment and facilities.
1.14 "Interconnect"means the provision by Grantee of technical,engineering,physical,and all other
necessary components tomaintaina physical linkingof Grantee's Cable System and Cable Service
oranydesignated Channel or signal pathway thereofwith neighboring CableSystems,so thatCable
Service of technicallyadequate quality may be sent to,and received from,other systems in
accordance with thisAgreement.
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,or
corporation,or anyother form of entityor organization.
1.17 "School"means any accredited educational institution,public or private,including,but not limitedto,primaryand secondary Schools,and colleges and universities.
1.18 "Skeef means each of the following which have been dedicated to the public or are hereafter
dedicated to the public and maintained under public authority or by others and located within the
Franchise Area:Streets,roadways,highways,avenues,lanes,alleys,sidewalks,easements,rights-
of-way and similar public property and areas.
1.19 "Subscriber"means any Person who electstosubscribe to,forany purpose,Cable Service provided
byGrantee by meansof,orinconnection with,the Cable System,and whose premises are physically
wiredand lawfullyactivated to receive Cable Service from Grantee's Cable System.
A."Commercial Subscriber"which means any Subscriber other than Residential Subscriber.
B."Residential Subscriber"which means any Person whoreceives Cable Service delivered to
singleor multipledwelling units,excluding such multiple dwelling units billedon a bulk-billing
basis.
1.20 "Upstream"means the carrying of a transmissionto the Headend from remote points on the Cable
System or from Interconnection points ontheCable System.
SECTION 2.GRANT OF FRANCHISE
2.1 Grat:
A.This Agreement authorizes Grantee to engage in providing Cable Service,as that term is
defined in 47 U.S.C.Sec.522(6),as amended.
B.Grantee promises and guarantees,as a condition of exercising theprivileges granted bythis
Agreement,thatanyAffiliateorjointventure orpartner ofthe Grantee directly involved intheofferingofCableServiceintheFranchiseArea,or directly involved in the management or
operation ofthe Cable System in the Franchise Area willalso comply with the termsand
conditions of thisAgreement.
2.2 Use of Public Streets and Wavs:Grantee willprovide a Cable Service withintheFranchise Area by
means of infrastructure ownedand maintainedby a thirdparty whichpartyhas separately obtained
a franchise fromtheCylocate and maintainits infrastructure10.the_public tigbtuf-way,_Grk
1š~ri Taliiedarijpermission tomake any use of the City's rights-of-way except as a user of thethird
party's infrastructure upon such terms and conditions as the Grantee and the third party shall
determine.
2.3 Duration:The termofthisAgreement andallrights,privileges,obligations and restrictions pertaining
theretoshall be from theeffective date of thisAgreement throughMay 31,2012.
2.4 Effective Date:The effective date of this Agreement shall be August 1,2002,unless Grantee fails
tofile an unconditional written acceptance of thisAgreement by September 1,2002,in which event
thisAgreement shallbe nulland void,and anyand allrights of Grantee tooperate 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 terms and conditions as
Grantor deems appropriate.
2.6 Grant of Other Franchises:
A.In the event the Grantor enters into a Franchise,permit,license,authorization,or other
agreement of any kind withany other Person or entityother thantheGrantee forthe purpose
of constructing oroperating a Cable System or providing Cable Service to any part ofthe
Service Area,in whichthe Grantee is actuallyproviding Cable Service undertheterms and
conditionsof thisAgreement,the materialprovisionsthereofshallbe reasonablycomparable
to those contained herein,in order that one operator not be granted an unfair competitive
advantage over another,and toprovide all partiesequal protection under the law.
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B.IfGrantor grants a Franchise toa thirdpartyforservicetoan area thatGranteeis not actuallyservingorrequiredtoextendserviceto,and which has material provisions thatare notreasonablycomparabletothosecontainedherein,Grantor shall offer Grantee a Franchise
toserve the same area under termsand conditions thatare reasonably comparable to thosesetforthintheFranchiseAgreemententeredintowiththethirdparty.
2.7 Police Powers:Grantee's rights hereunder are subjectto thelawfulpolice powers ofGrantor toadoptandenforceordinancesnecessarytothesafety,health,andwelfare ofthepublic,andGranteeagreestocomplywithallapplicablelawsandordinancesenacted,or hereafter enacted,by Grantor or anyotherlegally-constituted governmentalunit having lawfuljurisdictionover the subject matter hereof.
O Notwithstanding theforegoing,Grantor agrees itwillnot impose any regulation pursuant totheCable
Act not contained herein during thetermof thisFranchise without negotiation with the Grantee and
an opportunity for theGrantee toterminatethisFranchise ratherthan accept further regulation underthepowersgrantedtheGrantorundertheCableAct
2.8 Relations toOther Provisions of Law:This Franchise Agreement and allrights andprivileges grantedundertheFranchisearesubjectto,and theGrantee must exercise all rights in accordance with,
applicable law,as amended over theFranchise term.However,thisFranchise is a contract,subjectonlytotheGrantor's exercise ofits police and other powers and applicable law.This Franchise doesnotconferrightsorimmunitiesupontheGranteeotherthanasexpresslyprovidedherein.InthecaseofanyconflictbetweentheexpresstermsofthisFranchiseAgreementandanyordinanceofgeneralapplicationenactedpursuanttotheGrantor's police power,theordinanceshallgovern.Grantee doesnotwaiveitsrighttochallengethelawfulnessofaparticularenactment,includingon the groundsthat
a particular action isan unconstitutional impairment of contractual rights.The Franchise issued andtheFranchisefeepaidhereunderarenotinlieuofanyotherrequiredpermit,authorization,fee,charge ortax,unless expresslystated herein.
2.9 Effect ofAcceptance:
A.By accepting the Agreement,theGrantee:
(1)acknowledges and accepts the Grantor's legal right to issue and enforce theAgreement;
(2)agrees that itwill not oppose the Grantor's intervening in any proceeding affectingtheCableSystem;(3)accepts and agrees tocomply witheach and every provisionofthisAgreement;and (4)agrees that the Agreement was granted pursuant toprocessesandproceduresconsistentwithapplicablelaw,and that it willnot raise
any claimtothecontrary.
O B.The parties agree thatGrantee's proposal toprovideCable Service using "fibertothehome"by means of infrastructure ownedand maintainedby a thirdparty is innovative,but experi-mental and untested.Therefore,notwithstanding anythinginthisAgreement to thecontrary,Grantor acknowledges that Grantee,by accepting theAgreement,is not obligating itself toactivateortooperateaCableSystemortoprovideortoextendCableServiceunderanycircumstanceswhatsoever.
2.10 Effect ofChange inthe Cable Act:This form of Franchise is agreed to between the parties owing totheprovisionsoftheCableActinplaceatthetimeitwasenteredinto.Inthe eventthe Cable Act areamendedorotherFederallegislationisadoptedprovidingothermeanstoregulateGrantee's activity,the Grantorand Grantee agree tonegotiate toimplement such other means ofregulation ofGrantee'sactivity.
SECTION 3.FRANCHISE FEE AND FINANCIALCONTROLS
3.1 Franchise Fee:As compensation for the benefits and privileges granted under thisAgreement andinconsiderationofpermissiontouseGrantor's Streets,Grantee shall pay as a Franchise fee toGrantor,throughouttheduration ofthisAgreement,an amount equal tofive percent (5%)ofGrantee'sGrossRevenuesderivedfromtheoperationoftheCableSystemtoprovideCableServiceintheFranchiseArea.Accrual of such Franchise fees shall commence as of the effective date of thisAgreement.The Franchise fees are inaddition to allotherfees,assessments,taxes or payments ofgeneralapplicabilitythattheGranteemayberequiredtopayunderanyfederal,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 toGrantor shallbe computedmonthly.Each monthlypaymentshallbedueandpayablenolaterthanthirty(30)days after the last day of the precedingmonth.
O 3.3 Acceptance of Payment and Recomputation:No acceptance of any payment shall be construed asanaccordbyGrantorthattheamountpaidis,in fact,the correct amount,nor shall any acceptanceofpaymentsbeconstruedasareleaseofanyclaimGrantormayhaveforfurtheroradditionalsumspayableorfortheperformanceofanyotherobligationofGrantee.
3.4 Monthly Franchise Fee Reports:Each payment shall be accompanied by a written reportto Grantor,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,uponthirty(30)days'prior written notice,Grantor shall have the rightto conduct during Grantee's normal business hours an independent auditofGrantee's records reasonably related totheadministration or enforcement of thisAgreement,inaccordancewithgenerallyacceptedaccountingprinciples.The Citymay hirean independent certified
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public accountant to auditthe Grantee's financial records,inwhich case the Grantee shall provide all
necessary records to the certified public accountant.Ifthe audit shows that Franchisee fees have
been underpaid by four percent (4%)or more,Grantee shall pay the totalcost of the audit.
3.6 Interest on Late Payments:Inthe event that a franchise fee payment or other sum is not received
by the Grantor on or before the due date,or is underpaid,the Grantee shall pay in addition to thepayment,or sum due,interest from the due date at a rate equal to the interest rate specifiedfor
judgmentsentered in the Superior Court of theState of Washington.
3.7 Alternative Remedies:Ifany Section,subsection,paragraph,term or provision of thisFranchise
Agreement or any ordinance,law,or document incorporated herein by reference is held by a courtofcompetentjurisdictiontobeinvalid,unconstitutional or unenforceable,such holding shall beconfinedinitsoperationtotheSection,subsection,paragraph,termor provision directly involved in
the controversy inwhich such holding shall have been rendered and shallnot in any way affect thevalidityofanyotherSection,subsection,paragraph,term or provision hereof.Under such acircumstance,the Grantee shall,upon the Grantor's request,meet and confer with the Grantor toconsideramendmentstotheFranchiseAgreement.The purpose of the amendments shall be toplacetheparties,as nearly as possible,in the position thatthey were inpriorto such determination,
consistentwith applicable law.In the event the parties are unabletoagree to a modification of thisAgreementwithinsixty(60)days,either party may either (1)resort to litigation to amend theAgreement;or (2)shorten the Agreement to 36 months,at which point either party may invoke therenewalproceduresunder47U.S.C.subsection 546.Each party agrees to participate in up tosixteen(16)hours of negotiation during thesixty (60)day period.
3.8 AdditionalCommitments NotFranchise Fees:NotermorconditioninthisAgreement shall inanywaymodifyoraffectGrantee's obligationto pay Franchise fees to Grantor.Although the totalsum of
Franchisefee payments and additional commitments set forth elsewhereinthis Agreement may total
morethan five percent (5%)ofGrantee's Gross Revenues inany 12-month period,Grantee agreesthattheadditionalcommitmentshereinarenotFranchisefeesasdefinedunderanyfederallaw,nor
are theyto be offset or credited against any Franchise fee payments due to Grantor.
3.9 Costs of Publication:Grantee shall pay the reasonable cost of newspaper notices and publication
pertaining tothisAgreementand any amendments thereto,as suchnoticeor publication is reasonably
required by Grantor or applicable law.
3.10 Tax Liability:Payment of theFranchise fees under thisAgreement shall not exempt Grantee from
the payment of any generally applicable license,permit fee or other generally applicablefee,taxorchargeonthebusiness,occupation,property or income ofGrantee thatmay be imposed by Grantor.
3.11 Payment onTermination:IfthisAgreement terminatesforany reason,the Grantee shall filewiththe
Grantor withinninety (90)calendar days ofthe date of thetermination,a financial statement,certified
byan independent certified publicaccountant,showing theGross Revenues received by theGrantee
since the end of the previous fiscal year.The Grantor reserves the right to satisfy any remainingfinancialobligationsoftheGranteetotheGrantorbyutilizingthefundsavailableinanysecurity
provided by theGrantee.
SECTION 4.ADMINISTRATIONAND REGULATION:
4.1 Authority:Grantor is vested with the power and right to regulate the exercise of the privileges
permitted by thisAgreement in the public interest,orto delegate that power and right,or any part
thereof,to the extent permitted under state and local law,to any agent,in its sole discretion.
4.2 Rates and Charges:Allof Grantee's rates and charges related to or regarding Cable Service shall
be subjectto regulation byGrantor tothe fullextent authorized by applicablefederal,state and local
laws.
4T ¯Rätä DišófimTnäiÏoiËÄlÏËfninÏšš's rifes and cÑ6Ïgisshall be published (inthe forn oÍapublÍcÍy-available rate card),and shall be nondiscriminatory as to all Persons and organizations of similar
classes,under similar circumstances andconditions,Grantee shall apply its rates in accordance with
governing law,withsimilarrates and charges for all Subscribers receiving similar Cable Service,
withoutregard to race,color,familial,ethnic or national origin,religion,age,sex,sexual orientation,
marital,militaryor economic status,or physical or mental disability,or geographic location in the
Franchise Area.Grantee shall provide equivalent Cable Service to all residential Subscribers at
similar rates and to commercial Subscribers as authorizedby applicable laws,Nothing herein shall
be construed to prohibit:
A.The temporaryreduction or waivingof rates or charges in conjunction withvalid promotional
campaigns;
B.The offering of reasonable discounts to senior customers,disabled customers oreconomi-
cally disadvantaged customers;
C.Grantee from establishing different and nondiscriminatory rates and charges and classes of
service for commercial customers,as well as different nondiscriminatory monthly rates for
classes of commercialcustomers as allowableby federal law and regulations;or
D.Grantee from establishingdifferent and nondiscriminatory rates and charges for residential
Subscribers as allowable by federal law and regulations.
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4.4 Filinqof Rates and Charges:
A.Throughout the term of this Agreement,Grantee shall maintain on file with Grantor acompletescheduleofapplicableratesandchargesforCableServiceprovidedunderthisAgreement.Nothing inthissubsection shall be construed torequire Grantee tofilerates andchargesundertemporaryreductionsorwaiversofratesandchargesinconjunctionwithpromotionalcampaignsprovidedthatGranteeshallmakereasonableeffortstonotifyGrantor
inwriting inadvance of such promotions.
B.Grantee shall provide upon request from Grantor a complete schedule ofcurrentrates and
O charges for any and allLeased Access Channels,or portions ofsuch Channels,provided byGrantee.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 beperformedbyGrantee,such timeshall be deemed to be of the essence,and any failure of Grantee
to perform within.the allotted time may be considered a material violation of this Agreement andsufficientgroundsforGrantortoinvokeanyrelevantprovisionofthisAgreement.However,in theeventthatGranteeispreventedordelayedintheperformanceofanyofitsobligationsunderthisAgreementbyreasonbeyondthereasonablecontrolofGrantee,such as acts of God (forexample,floods,tornadoes,earthquakes or unusually severe weather conditions)oracts or omissionsofthethirdpartythatownsandmaintainstheinfrastructurebywhichGranteeprovidesitsCableSystem,Grantee's performance shall be excused duringthe force majeure occurrence and Grantee thereaftershall,under thecircumstances,promptly perform the affectedobligationsunder thisAgreement orprocureasubstituteforsuchobligationwhichissatisfactorytoGrantor.Grantee shall not be excusedbymereeconomichardshipnorbymisfeasanceormalfeasanceofitsdirectors,officers or employ-
ees.
4.6 Performance Evaluation Sessions:
A.Grantor may hold regular performance evaluation sessions annuallyon theanniversary datesoftheeffectivedateofthisAgreement.Allsuch evaluationsessions shallbe conducted.byGrantor.
B.Special evaluation sessions may be held at any time by Grantor during the term of thisAgreement.
C.Allregular evaluation sessions shall be open tothe public and announced at least one week
inadvance in a newspaper of general circulation in theFranchise Area.
O D.Evaluation sessions shall deal with the Grantee's performance of the terms and conditionsoftheFranchiseandcompliancewithstateandfederallawsandregulations.
E.As part of the annual performance evaluation session,ifso requested by Grantor,GranteeshallsubmittotheGrantoralistofallCableServicesavailable.IftheGrantor has reasontobelievethataportionoralloftheCableSystemdoesnotmeettheapplicableFCCtechnicalstandards,the Grantor,at its expense,retains the rightto appoint a qualifiedindependentengineertoevaluateandverifythetechnicalperformanceoftheCableSystem.
F.During evaluationsunder thisSection,Grantee shall fullycooperate with Grantor and shallprovidesuchinformationanddocumentsasnecessaryandreasonableforGrantortoperformtheevaluation.
SECTION 5.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 itsofficers,boards,commissions,agents,and employees againstanyandallclaims,including,but not limited to,thirdparty claims,suits,causes of action,proceedings,and judgmentsfordamages orequitable reliefarising outofthe operation of itsCableSystemregardlessofwhethertheactoromissioncomplainedofisauthorized,allowed,or prohibited bythisAgreement provided,however,theGrantee willnotbe obligatedtoindemnifyGrantorshouldGrantorinterveneinanyproceedingregardingthegrantofthisAgreementpursuanttoSection2.9 of thisAgreement,or ifthe cause of any claim isthe solenegligenceofGrantor,or if the cause of any claimis a willfulact or omissionof Grantor.Without limiting in any way the Grantee's obligation to indemnify the Grantor and itsofficers,boards,commissions,agents,and employees,as set forth above,thisindemnity provisionalsoinclesedromnagersandabiliiasnyuchyssarising
out of or throughthe acts or omissionsoftheGrantee,its contractors,subcontractors and theirofficers,employees,oragents,ortowhichthe Grantee's negligence shall in any way contribute;
(2)Arising out ofany claim for invasion of the right of privacy;for defamation of anyPerson,firm or corporation;for the violation or infringement of any copyright,trademark,trade name,service mark,or patent;for a failure by the Grantee tosecureconsentsfromtheownersorauthorizeddistributorsofprogramstobedeliveredbytheCableSystem;or for violation of any other right of any Person;
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(3)Arising out of Grantee's failure to comply with the provisions of any federal,state orlocalstatute,ordinance,ruleor regulationapplicabletotheGrantee with respect toanyaspectofitsbusinesstowhichthisAgreementapplies;and
(4)Arisingfrom any thirdparty suit,action orlitigation,whether brought by a competitor
to Grantee or by any other Person or entity,whether such Person or entity does ordoesnothavestandingtobringsuchsuit,action or litigation if such action(1)challenges the authority of the Grantor to issue thisAgreement to Grantee;or(2)alleges that,in issuing this Agreement to Grantee,the Grantor has acted in adisparateordiscriminatorymanner.
B.Dutyto Give Notice and Tender Defense:The Grantor shall give the Grantee timelywritten
notice ofanyclaimor ofthe commencementof any action,suit orother proceeding coveredbytheindemnityinthisSection.Inthe event anysuch claimarises,the Grantor or any otherindemnifiedpartyshalltenderthedefensethereoftotheGranteeandtheGranteeshallhave
the obligation and duty todefend,settle or compromise any claims arising thereunder,and
the Grantor shall cooperate fullytherein.Grantee shallaccept or declinethetenderwithin
thirty(30)days.Grantee shall reimburse reasonable attorneys'fees and costs incurred by
theGrantor during thethirty(30)day period inwhich the Grantee accepts or declines tender.In theevent that the Grantee declines defense of the claim in violation of Section 5,3,the
Grantor 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 and in seeking such recovery.
5.2 Performance Bond:Upon or before the effective date of this Franchise,Grantee shall obtain and
maintain during the entire termof thisFranchise,including any extensions or renewals thereof,at its
own cost and expense,a performance bond that shall be filed with the Grantor inthe amount of six
thousanddollars ($6,000)as guarantee for the faithful performance by it of alltheprovisions of this
Franchise.Such bond shall be reviewed at the end ofsixty(60)months.The amount of the bond
shall be set for the remainderofthe Franchise termatthe greater of six thousand dollars ($6,000)ortheamountoffranchisefeespaidinthesixtiethmonth.
SECTION 6.CUSTOMER SERVICE:
6.1 Customer Service Standards:The Grantee shall meet or exceed any customer service standards
adopted by the FCC and,to the extent the same are stricter or address different matters,thoseadoptednoworinthefuturebytheGrantor.
6.2 Subscriber Privacy:Grantee willcomply withprivacy rightsofSubscribers inaccordancewith federal,
state and local law.
6.3 Local Customer Access:Throughout theAgreement term,theGrantee shall provide telephonesand
other equipment so that customer complaintsand service requests can be received by Grantee on
a 24-hour basis at a toll-freetelephonenumber.
6.4 Emergenov Override:The Grantee shall maintain systems,equipment,and procedures permitting
preempting ofthe regular signal on all channels withemergency warning signals originating from the
Grant County Emergency Services (GCES).The followingstipulations shall apply,except where and
to what extent they may be preempted by FCCregulations:
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 shallprovide and maintain allequipment,systems,software,services,security
provisions,and proceduresrequiredfora fullyoperational emergencycable override warning
systeminaccordancewith FCC rules.Anyequipmentnecessaty foggtiyatiog oßhe system
by the GCESshallTe providëd by the Grantor.Activation points shall be at the GCES and
one other backup pointwithintheGrant County area,as mutuallyagreed uponbythe parties.
C.The cable overrideshall consist of audio and crawlertextsignals as required bythe Federal
Communications Commission rules governing the new Emergency Alert System (EAS).
D.The system shall be tested as determined by theGCES not more than monthly and not less
than annually.
E.The Grantee shall cooperatefullywith theGCES inall other matters pertaining toa function-
ing emergency cable override system.
F,Should the owner of the infrastructure which is the means of transmission of the Cable
Service authorized in thisAgreement provide the emergency override acceptable to the
GCES,thenthe Grantee shall have no further obligationunder this provision.
SECTION 7.REPORTS AND RECORDS
7.1 Open Records:
A.Grantee shall manage all of its operations in accordance with a policy of keeping its
documents and records open and accessible toCity.Cityshall have access to,and the right
to inspect,any books and records ofGrantee,its parent corporationsand Affiliated entities
which are reasonably relatedand necessary totheadministration orenforcement oftheterms
ofthisAgreement.Grantee shallnot deny Cityaccess toany such records of Grantee on the
basis thatGrantee's records are under the control ofany parent corporation,affiliatedentity
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or a thirdparty related to thisAgreement.Citymay,in writing,request copies of any suchrecordsorbooksandGranteeshallprovidesuchcopieswithinthirty(30)days of thetransmittalofsuchrequest.One copy of all reports and records required under this or anyotherSectionshallbefurnishedtoCityatthesoleexpenseofGrantee.If the requestedbooksandrecordsaretoovoluminous,or for security reasons or business confidentialitycannotbecopiedorremoved,thenGrantee mayrequest,inwritingwithinten (10)days,thatCityinspectthematoneofGrantee's local area offices.Ifany books or records of Grantee
are not kept in a local area office and not made available in copies to City upon writtenrequestassetforthabove,and ifCity determines that an examination of such records is
necessary or appropriate to the performance of any of City's duties,administrationor
O enforcementof thisAgreement,thenall reasonable travelexpenses incurred inmaking suchexaminationshallbepaidbyGrantee.Ifanybooksor records ofGranteeare not kept in alocaloffice,Grantee willprovideor otherwisemake such documents available for inspectionandreviewatthelocalofficewithinten(10)workingdays.
72 Confidentiality:Cityagrees totreatas confidential any books and records thatconstituteproprietary
or confidential information under federal or state law,tothe extent Grantee makes City aware ofsuchconfidentiality.Grantee shall be responsible for clearly and conspicuously stamping the word"Confidential"on each page that contains confidential or proprietary information,and shall uponwrittenrequestfromtheCityprovideabriefwrittenexplanationastowhysuchinformationisconfidentialunderstateorfederallaw.IfCityreceives a demand from any Person for disclosure of
anyinformation designated byGranteeas confidential,Cityshall,so far as consistent withapplicablelaw,advise Grantee in advance so thatGrantee maytakeappropriatesteps to protect its interestsandprovideGranteewithacopyofanywrittenrequestbythepartydemandingaccesstosuchinformationwithinareasonabletime.Untilotherwise ordered by a court or agency of competentjurisdiction,Cityagrees that,totheextent permitted by state and federal law,it shalldeny access toanyofGrantee's books and records marked confidentialas set forth above toany Person.
7.3 Complaint File:
A.Grantee shallkeep an accurateand comprehensive fileofany and allcomplaints regardingtheCableSystemasrequiredbytheFCC.
7.4 Inspection of Facilities:Citymay inspect upon request any of Grantee's facilities and equipment toconfirmperformanceunderthisAgreementatanytimeuponatleastforty-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,whichare available to City under thisAgreement orotherwise.
SECTION 8.PROGRAMMING
8.1 Broad Programming Categories:
A.Grantee's cable televisionsystem shall provide thewidest diversity ofprogramming possible.Grantee shall provide at least the following broad categories of programming to the extentsuchcategoriesarereasonablyavailable:
1.Educational programming;
2.Washington State news and information;
3 Sports;
4.General entertainment (includingmovies);
5.Children/family-oriented;
6.Arts,cultureand performing arts;
7.Foreign language;
8.Scienceldocumentary;
9.Weather information;
10 Programming addressed to diverse ethnic and minorityinterests in the FranchiseArea;and
11.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,withoutcharge,fullyscrambleorotherwisefullyblocktheaudioandvideoprogrammingofeachchannelcarryingsuchprogrammingsothatonenotaSubscriberdoesnotreceiveit.Upon request by a Subscriber,Grantee may install a filter to block or otherwise disable at least thevideo of certain channels aSubscribersubscribestobutfindsobjectionable.
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8.3 Leased Access Channels:Grantee shall meet the requirements for Leased Access Channels
imposed by federal law.
8.4 Continuity of Service:
A.It shall be the right of allSubscribers to continue to receive Cable Service from Grantee
insofar as theirfinancial and other obligations toGrantee are satisfied.Subject tothe force
majeure provisions of thisAgreement,Grantee shall use its best efforts to ensure that all
Subscribers receive continuous,uninterrupted Cable Service.
B.Inthe event of a change in ownership,or in theevent a newCable Operator acquires theCableSysteminaccordancewiththisAgreement,Grantee shall cooperate with City and
such new Cable Operator inmaintainingcontinuity of service to allSubscribers.
8.5 Service for Disabled:Grantee shall retransrnit all closed-captioned signals made available by
programmers inconjunctionwithprogramming inits line-up and which are required tobe carried by
the FCC in order to facilitate viewing by handicapped persons.Grantee shall comply with theAmericansWithDisabilitiesAct,anyamendments theretoand any other applicable federal,state orlocallawsorregulations.Grantee shall maintain the necessary head-end equipment to make SAP
features available to Subscribers.Grantee's obligations under this subsection do not extend to
providingcustomer premisesequipment.
8.6 Community Programming Needs:At the request of the Mayor,but no more than twice,ninety (90)days after such request,the Grantee shall furnish toallsubscribers along withtheirmonthlyservice
statement,a listof broad categories ofprogramming,and otherservicesavailable toGrantee,subject
to prior review bythe Mayor.The menu tobe intheformat of a mailback survey for determination of
the subscriber's programming preference.The results ofthe surveyare to be provided theCity by
the Grantee with any proposed change(s)in programming to accommodate subscriber's desired
revisions as indicated by theresults of the survey.
8.7 Category Agreement:The parties expressly agree thattheprogramming described inparagraph 8.1
represent broad categories of video programming within the meaning of 47 U.S.C.544(b)(2)(B).
SECTION 9.TEST AND COMPLIANCE PROCEDURES
9.1 Upon request,Grantee shall adviseGrantor of schedules and methods fortestingthe Cable System
ona regular basis todetermine compliance with the provisions ofapplicableFCCtechnicalstandards.
Tests may be witnessed by representatives of Grantor,and written test reports may be made
available toGrantoruponrequest.
9.2 As required byFCC Rules,Granteeshall conductproof of performance tests and cumulative leakage
index tests designed to demonstrate compliance with FCC requirements.Grantee shall provide
Grantor summary written reports of the results of such tests.
SECTION10.SERVICE EXTENSION,CONSTRUCTION,AND INTERCONNECTION
10.1 Equivalent Service:Itis Grantee's general policythatall residential dwelling units inthe Franchise
Area have equivalentavailabilitytoCable Service from Grantee's Cable Systemunder nondiscrimina-
toryrates and reasonable terms and conditions.Grantee shall not arbitrarily refuse to provide Cable
Service toanyPerson within its Franchise Area.Itis understood,however,that Grantee shall not be
obligated to provideCable Service to residential dwelling units in areas where the infrastructure
owned and maintained by a thirdpartyhas not yet been installed or made operational.
10.2 Service Availability:
A.New Construction.Grantee shall provide Cable Service in newly constructed areas as soon
-as the iriftastritCture óWhed hiWiriáíntaiñëd byihiinfliargiinä 6arry(niGranteeíÔãbleServiceisinstalledandoperational.Grantee has no obligation under thisAgreement to
construct,own or maintain infrastructure to carry Cable Service.
10.3 Connection of Public Facilities:Grantee shall,at no cost to Grantor,provide at least one (1)outlet
of Basic and expanded basic programming toallCity/Grant County buildings,as designated by the
Grantor,and all libraries and Schools that are connected to the thirdparty's infrastructure carrying
Grantee's Cable Service.Inaddition,Grantee shall provide,at no cost tothe building owner,one (1)
outletofBasic and expanded basic programming toall such future publicbuildings thatare connected
tothe thirdparty's infrastructure carryingGrantee's Cable Service.Outlets of Basic and expanded
basic programming provided in accordance with this subsection may be used to distribute Cable
Service throughoutsuch buildings,provided such distribution can be accomplished without causing
Cable System disruption and general technicalstandards are maintained.
SECTION 11.FRANCHISE VIOLATIONS;REVOCATIONOF FRANCHISE
11.1 Procedure for Remedying Franchise Violations:
A.IfGrantor reasonably believes thatGrantee has failed to perform any obligation under this
Franchise or has failed to perform ina timelymanner,Grantor shall notifyGrantee inwriting,
stating withreasonable specificity the nature of the alleged violation.Grantee shall have
thirty(30)days from the date of receipt of such notice to:
L _.Respond toGrantor,contesting Grantor's assertion thataviolationhas occurred,and
request a hearing in accordance with subsection C below;or
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2.Cure theviolation;or
3.Notify Grantor thatGrantee cannot cure the violation within thethirty(30)days,because ofthenature oftheviolation and notifytheGrantorinwritingofwhat stepstheGranteeshalltaketocuretheviolationincludingtheGrantee's projectedcompletiondateforsuchcure.Insuch case,Grantor shall set a hearing date withinthirty(30)days ofreceipt of such response inaccordance with subsection (B)below.
B.In the event thatthe Grantee notifiesthe Grantor that it cannot cure the violationwithinthethirty(30)day cure period,Grantor or itsdesignee shall set a public hearing withinthirty(30)
O 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 andcompletiondateforcurearereasonable.In theevent such plan and completiondate arefoundtobereasonable,the same shall be approved bythe Grantor.
C.In the event that theGrantee fails tocure the violation within the thirty(30)day basic cureperiod,or within an extended cure period approved bythe Grantor or designee pursuant tosubsection(B),the Grantor or designee shall set a public hearing to determine whatsanctionsshallbeapplied.In theevent thattheGrantee contests the Grantor's assertion thataviolationhasoccurred,and requests a hearing in accordance withsubsection (A)(1)above,theGrantor or designee shall set a public hearing within sixty (60)days of the Grantor'sreceiptofthehearingrequesttodeterminewhethertheviolationhasoccurred,and if aviolationisfound,what sanctions shall be applied.
D.In the case of any hearing pursuant to this Section,Grantor shall notify Grantee of thehearinginwritingandatthehearing,Grantee shall be provided an opportunity tobe heardandtopresentevidenceinitsdefense.The Grantor shall also hear any other Personinterestedtherein.
E.If,afterthepublic hearing,Grantor or designee determines thata violation exists,Grantor ordesigneemayutilizeoneormoreofthefollowingremediessubjecttoGrantee's rightsunderfederal,state or local law to appeal such determination:
1.Order Grantee tocorrector remedy theviolation withina reasonable timeframe asGrantorordesigneeshalldetermine;
2.Revoke this Franchise,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 by City Council after notice and hearing as setforthinthisSectionandinaccordancewiththeCableActandotherapplicablelaw.
G.The determination as towhether a violation ofthisFranchise has occurredshallbe withinthesolediscretionoftheGrantororitsdesignee,provided thatany such final determination shallbesubjecttoreviewbyacourtofcompetentjurisdictionunderapplicablelaw.
11.2 Revocation:In addition to all other rights and powers retained by the Grantor under thisFranchiseorotherwise,theGrantor reserves theright toforfeitand terminatethisFranchiseandallrightsandprivilegesoftheGranteehereunderintheeventofamaterialviolationofitstermsandconditions.A material violation bythe Grantee shall include,but shall not belimitedto,the following:
1.Violation of any material provision of thisFranchise or any other Franchise betweenGrantorandGrantee,or any material rule,order,regulation or determination oftheGrantororauthorizedagentmadepursuanttothisFranchiseorotheragreement;
2.Attempt toevade anymaterial provision ofthisFranchise or to practice any fraud ordeceitupontheGrantororitsSubscribersorcustomers;
3.Material misrepresentation offact inthe application for or negotiation ofthis Fran-chise;or
4.IfGrantee becomes insolvent,or the subject of a bankruptcy proceeding.
11.3 Removal:
A.Inthe eventof termination,expiration or revocation ofthisFranchise,Grantor may order theOremovaloftheabove-groundCable 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 to a qualified purchaser,ortoremoveitsplant,structures and equipment from theGrantor's Streets and other publicplacesasdirectedbytheGrantor.During thisperiod which shall run from theeffectivedateofthefinal,non-appealable order or decision of the city councilor a court of competentjurisdictionimposingtermination,the Grantee shall have the ability to operate the CableSystempursuanttotheprovisionsofthisFranchise.In removing its plant,structures andequipment,Grantee shall refill,at its own expense,any excavation that is rnade by it andshallleaveallStreets,public places and private property in as good a condition as thatprevailingpriortoGrantee's removalof its equipment.
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B.IfGrantee fails tocomplete any required removal pursuant to Subsection (A)tothe satisfac-
tionofGrantor,Grantor maycause thework tobe done andGrantee shall reimburse Grantor
for thereasonable costs incurred withinthirty(30)days afterreceipt of an itemized listof thecostsorGrantormayrecoverthecoststhroughthesecurityprovidedbyGrantee.
11.4 Receivership and Foreclosure:
A.At the optionof Grantor,subject toapplicable law,this Franchise may be revoked one-hundred twenty(120)days after theappointment of a receiver or trustee to take over and
conduct the business of Grantee whether in a receivership,reorganization,bankruptcy orotheractionorproceedingunless:
1.The receivership or trusteeship is vacated withinone-hundred twenty(120)days of
appointment;or
2.The receiver(s)or trustee(s)have,withinone hundred twenty(120)days aftertheir
election or appointment,fully compliedwith all the terms and provisions of thisFranchise,and have remedied allviolations under the Franchise.Additionally,thereceiver(s)or trustee(s)shall have executed an agreement duly approved by the
court having jurisdiction,bywhich the receiver(s)ortrustee(s)assume andagree tobeboundbyeachandeverytermandprovisionofthisFranchise.
B.Ifthereisa foreclosure or other involuntary sale ofthewholeoranypartof the plant,property
and equipment of Grantee,Grantor may serve notice of revocation on Grantee and tothepurchaseratthesale,and the rights and privileges of Grantee under thisFranchise shall be
revoked thirty(30)days after service ofsuch notice,unless:
1.Grantor has approved the transferofthe Franchise,in accordance with theproce-dures set forth inthis Franchise and as provided by law;and
2.The purchaser has agreed with Grantor toassume and be bound by all of the termsandconditionsofthisFranchise.
11.5 No Recourse Against Grantor:Except where otherwise provided herein,Grantee shall not have any
monetary recou rse against Grantor or itsofficials,boards,commissions,agents oremployees for any
loss,costs,expenses or damages arising out ofany provision or requirement ofthisFranchise ortheenforcementthereof,inaccordance withthe provisions of applicable federal,state and local law.The
rights of the Grantor under this Franchise are in additionto,and shall not be read to limit,anyimmunitiestheGrantormayenjoyunderfederalorstatelaw.
11.6 Nonenforcement by Grantor:Grantee is not relieved of its obligation to comply with any of theprovisionsofthisFranchisebyreasonofanyfailureofGrantortoenforcepromptcompliance.
Grantor's forbearance or failure to enforce any provision ofthis Franchiseshall not serve as a basis
tostop any subsequent enforcement.The failure oftheGrantor an one ormore occasionstoexercise
a rightor torequire compliance or performanceunder this Franchise or any applicable law shall not
bedeemed toconstitute a waiver ofsuch rightora waiver ofcompliance orperformance,unlesssuch
right has been specifically waived in writing.Any waiver of a violation is not a waiver of any other
violation;whether similar ordifferent from that waived.
1L7 Relationship of Remedies:The remedies provided for in this Franchise are cumulative and not
exclusive;the exercise of one remedy shall not prevent the exercise of another,or any rights of the
Grantor at law or equity.
SECTION 12.FRANCHISE RENEWAL TRANSFER ANDVOLUNTARYTERMINATION
12.1 Renewal:
A.The Grantor and Grantee agree thatany proceedings undertakenby the Grantor thatrelate
totherenewal of Grantee's Agreement shallbe governedbyand complywiththeprovisions
of Section 626 of theCableAct,unlesstheprocedures andsubstantiveprotections set forth
thereinshall be deemed to be preempted and superseded bytheprovisionsof anysubse-
quent provision of federal or state law.
B.In addition to the procedures set forth in said Section 626(a),the Grantor agrees to notify
Grantee of the completion of its assessments regarding the identification of future cable-
related community needs and interests,as wellas the past performance of Grantee under
the then current Franchise term.Notwithstanding anything to the contrary set forth herein,
Grantee and Grantor agree thatat any timeduring the term of the then current Franchise,
while affording the public adequate noticeand opportunity for comment,the Grantor and
Grantee may agree to undertake and finalize negotiations regarding renewal of the then
current Agreement and the Grantor may grant a renewal thereof.Grantee and Grantor
consider the termsset forth in this Section to be consistentwith theexpress provisions of
Section 626 oftheCable Act
12.2 Transfer of Ownership orControl:
A.This Agreement shall not be sold,assigned,transferred,leased,or disposed of,either in
whole or in part,either by involuntary sale or by voluntary sale,merger,consolidation,nor
shall titlethereto,eitherlegal or equitable,or any right,interest,or property therein pass to
orvest inanyPerson orentity,without the priorwritten consentof theGrantor,which consent
shall not be unreasonably withheld.
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B.The Grantee shall promptly notifythe Grantor ofany actual orproposedchangein,or transferof,or acquisitionby any other party ofcontrolof theGrantee.The word "control"as usedhereinisnotlimitedtomajoritystockholdersbutincludesactualworkingcontrolinwhatevermannerexercised.A rebuttable presumption that a transfer of control has occurred shallariseontheacquisitionoraccumulationbyanyPersonorgroupofPersonsoftenpercent(10%)of the shares or the general partnership interest in the Grantee,except that thissentenceshallnotapplyinthecaseofatransfertoanyPersonorgroupalreadyowningatleastatenpercent(10%)interest of theshares or the general partnership interest intheGrantee.Every change,transfer or acquisition of control of the Grantee shall make thisFranchisesubjecttocancellationunlessanduntiltheGrantorshallhaveconsentedthereto.
C.The parties tothesale or transfershall make a written requestto the Grantor for its approvalofasaleortransferandfurnishallinformationrequiredbylawandtheGrantor.
D.The Grantor shallrender a final written decision on therequest within one-hundred twenty(120)days oftherequest,provided ithas receivedallrequested information.Subjecttotheforegoing,if the Grantor fails to render a final decision on the request within one-hundredtwenty(120)days,such request shall be deemed granted unless the requesting party andtheGrantoragreetoanextensionoftime.
E.Withinthirty(30)days ofany transferor sale,ifapproved or deemed granted bythe Grantor,Grantee shall file with the Grantor a copyof the deed,Agreement,lease or other writteninstrumentevidencingsuchsaleortransferofownershiporcontrol,certified and sworn to ascorrectbyGranteeandthetransferee.
F.Inreviewing a request for sale or transfer,the Grantor may inquire into the legal,technicalandfinancialqualificationsoftheprospectivecontrollingpartyortransferee,and GranteeshallassisttheGrantorinsoinquiring.The Grantor may condition said sale or transferuponsuchtermsandconditionsasitdeemsreasonablyappropriate,provided,however,any suchtermsandconditionssoattachedshallberelatedtothelegal,technical,and financialqualificationsoftheprospectivecontrollingpartyortransfereeandtotheresolutionofoutstandingandunresolvedissuesofnoncompliancewiththetermsandconditionsofthisAgreementbyGrantee.
G.The consent or approval of the Grantor toany transfer bythe Grantee shall not constitute awaiverorreleaseofanyrightsoftheGrantor,and any transfer shall,by its terms,beexpresslysubordinatetothetermsandconditionsofthisFranchise.
H.Notwithstanding anything to the contrary in thisSection,the prior approvalof the Grantorshallnotberequiredforanysale,assignment or transferof theAgreement or Cable Systemforcabletelevisionsystemusagetoanentitycontrolling,controlledby or underthe samecommoncontrolasGranteeprovidedthattheproposedassigneeortransfereemustshowfinancialresponsibilityasmaybedeterminednecessarybytheGrantorandmustagreeinwritingtocomplywithallprovisionsoftheAgreement.
12.3 Voluntary Termination:The Grantee mayterminatethisAgreement upon givingtheGrantor thirty(30)days advance written notice of such termination.
SECTION 13.SEVERABILITY
Ifany Section,subsection,paragraph,termor provision ofthisAgreement is determined tobe illegal,invalid
orunconstitutional byany court of competent jurisdictionor byany stateor federal regulatory authorityhavingjurisdictionthereof,such determination shall have no effect on the validityof any other Section,subsection,paragraph,termor provision ofthisAgreement,allof which will remain infullforce and effect for the termoftheAgreement
SECTION 14.MISCELLANEOUS PROVISIONS
14.1 Preferential or Discriminatorv Practices Prohibited:Grantee shall not discriminate in hiring,employment or promotion onthe basis of race,color,creed,ethnic or national origin,religion,age,sex,sexual orientation,maritalstatus,or physical or mental disability.Throughout the term of thisAgreement,Grantee shall fullycomplywith allequalemploymentornondiscriminationprovisions andrequirementsoffederal,state and local law and,in particular,FCC rules and regulations relatingthereto.
14.2 Notices:Throughout the term of the Agreement,Grantee shall maintain and file with Grantor adesignatedlegalorlocaladdressfortheserviceofnoticesbymail.A copy ofallnotices fromGrantortoGranteeshallbesent,postage prepaid,tosuch address and such notices shallbe effectiveuponthedateofmailing.Atthe effective date of thisAgreement,such addresses shall be:
PowerTelNet Communications,Inc.402 7'"StreetP.O.Box 8Prosser,WA 99350Attn:Michael J.Bradshaw,General Manager/Executive Vice President
Allnotices tobe sent by Grantee toGrantor under thisAgreement shall be sent,postage prepaid,andsuchnoticesshallbeeffectiveuponthedateofmailing.Attheeffective date ofthisAgreement,suchaddressshallbe:
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City of Moses LakeP.O.Drawer 1570MosesLake,WA 98837
14.3 BindinqEffect:This Agreement shall be binding upon the parties hereto,theirpermitted successorsandassigns.
14.4 Authorityto Amend:This Agreement may be amended at any time by written agreement between
the parties.
14.5 Governing Law:This Agreement shall be governed in all respects by the laws of the State of
Washington.
14.6 Guarantee:The performance of the Grantee shall be guaranteed inall respects byVideo Internet
Broadcasting Corporation.The subjoined guarantee shall be executed prior to the effective date hereof.
14.7 Captions:The captions and headings ofthisAgreement are for convenience and reference purposes
onlyand shall not affect inany way the meaningor interpretation ofanyprovisions ofthisAgreement.
14.8 Construction ofAgreement:The provisions ofthisAgreement shall be liberally construed topromote
the public interest.
14.9 Entire Agreement:This Franchisecontains allof theagreements of theparties withrespect to anymattercoveredormentionedinthisFranchiseandnopriororcontemporaneousagreementsor
understandings pertaining toanysuch matters shall be effectiveforany purpose.Noprovision ofthis
Franchise may be amended or added toexcept byagreementinwritingsigned byboth ofthe parties.
14.10 Attorney's Fees:Ifany suit or other actionis instituted in connection with 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 of the essence ofthis Franchise and each and all of its provisions
in which performance is a factor.
Section 2.This ordinance shall takeeffect and be in force five (5)days after its passage and publication of
its summary as provided by law.
Adopted by theCityCouncil and signed by its Mayor on June 25,2002.
Ronald C.Cone,Finance Director
A OVED AS TO FORM:
ames A.Whit ker,CityAttorney
ACCEPTED BYPOWERTELNETCOMMUNICATIONS,INC.
DATE:2002
By:Name:hael J.radshaw
Title:General nager/Executive Vice President O