March 11, 2013 Agenda
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ATHRYN IGLEYAYOR
ITY OF OODBURN
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ORST AUSTEINOUNCILOR ARD
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ISA LLSWORTHOUNCILOR ARD
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AMES OXOUNCILOR ARD
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RANK ONERGANOUNCILOR ARD
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CHCC–270MS
ITY ALL OUNCIL HAMBERS ONTGOMERY TREET
1.CALL TO ORDER AND FLAG SALUTE
2.ROLL CALL
3.ANNOUNCEMENTS AND APPOINTMENTS
Announcements:
None.
Appointments:
None.
4.COMMUNITY/GOVERNMENT ORGANIZATIONS
A.Chamber of Commerce
B.Woodburn School District
5.PROCLAMATIONS/PRESENTATIONS
Proclamations:
None.
Presentations:
A.Construction Phases Update
6.COMMUNICATIONS
None.
–
This allows the public to introduce items for
7.BUSINESS FROM THE PUBLIC
Council consideration not already scheduled on the agenda.
**Habrá intérpretes disponibles para aquéllas personas que no hablan Inglés, previo acuerdo.
Comuníquese al (503) 980-2485.**
March 11, 2013Council Agenda Page i
–Items listed on the consent agenda are considered
8.CONSENT AGENDA
routine and may be adopted by one motion. Any item may be removed
for discussion at the request of a Council member.
A.Woodburn City Council minutes of February 25, 20131
Recommended Action: Approve the minutes.
B.Woodburn Planning Commission minutes of February 7, 20133
Recommended Action: Accept the minutes.
C.Full On-Premise Sales –Greater Privilege8
Recommended Action:The Woodburn City Council
recommend that the OLCC approve the Full On-Premise Sales –
Greater Privilege application for El Agave Grill Restaurant LLC.
9.TABLED BUSINESS
None.
10.PUBLIC HEARINGS
A.Cable Television Franchise10
–Members of the public wishing to comment on items of
11.GENERAL BUSINESS
general business must complete and submit a speaker’s card to the City
Recorder prior to commencing this portion of the Council’s agenda.
Comment time may be limited by Mayoral prerogative.
A.Council Bill No. 2919-An Ordinance Granting a Cable Television 13
Franchise to Wavedivision VII, LLC d/b/aWave Broadband and
Declaring an Emergency
Adopt the ordinance.
Recommended Action:
B.Award of Construction Contract for the I-5 Interchange –Force88
Main and Sanitary Sewer Services RelocationEast of Astor Way
Recommended Action:That the City Council, acting as the
Local Contract Review Board, award the construction contract
for the I-5 Interchange –Force Main and Sanitary Sewer
Services Relocation East of Astor Way Project to Canby
Excavating, Inc. in the amount of $165,895.00.
March 11,2013Council Agenda Page ii
–
These
12.PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS
are Planning Commission or Administrative Land Use actions that may be
called up by the City Council.
None.
13.CITY ADMINISTRATOR’S REPORT
14.MAYOR AND COUNCIL REPORTS
15.ADJOURNMENT
March 11,2013Council Agenda Page iii
COUNCIL MEETING MINUTES
FEBRUARY 25, 2013
DATECOUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY
0:01
OF MARION, STATE OF OREGON, FEBRUARY 25, 2013
CONVENED
The meeting convened at 7:01 p.m. with Mayor Figley presiding.
ROLL CALL
Mayor Figley Present
Councilor Cox Present
Councilor Lonergan Present
Councilor McCallum Present
Councilor Morris Present – 7:03
Councilor Raustein Present
Councilor Ellsworth Present
Staff Present:
City Administrator Derickson, City Attorney Shields, Public Works
Director Brown,Human Resources Director Hereford, Police Chief Russell, Economic
and Development Director Hendryx, Community Services Director Row, Finance
Director Shearer,Captain Garrett, Library Manager Hunter, Communications
Coordinator Horton, City Recorder Pierson.
PRESENTATION
0:01
A.Chief Russell gave the 2012Crime Report.
B. Don Judson, Executive Director of the Woodburn Area Chamber of Commerce,
announced that Councilor Morris has been chosen as the recipient of the Junior First
Citizen Award and reminded Council that the Distinguished Service Awards will be
taking place on March 15.
CONSENT AGENDA
0:57
A. Woodburn City Council minutes of February 11, 2013,
B. Woodburn City Council Executive Session minutes of February 11, 2013,
C. Woodburn Planning Commission minutes of January 24, 2013,
D. Woodburn Recreation and Park Workshop minutes of January 8, 2013,
E. Woodburn Recreation and Park Board minutes of February 12, 2013,
F. Crime Statistics through January 2013.
McCallum/Cox
… adopt the Consent Agenda.
FY 2013/14 FINANCIAL PLAN
City Administrator Derickson provided a staff report.
0:58
Cox/McCallum….
adopt the attached FY 2013/14 Financial Plan (Budget Policies &
Reduction Strategy and 5-Year Financial Forecast). Motion passed unanimously.
TRANSIENT OCCUPANCY GRANT DISTRIBUTION & PROPOSED THREE
1:05
YEAR AGREEMENT WITH THE WOODBURN AREA CHAMBER OF
COMMERCE
City Administrator Derickson provided a staff report. Ruby Wolfer,
Woodburn Area Tourism Coordinator, provided the City Council with an update on the
work she has been doing to promote Woodburn. She also provided the City Council a copy
Lonergan /Morris ….
of Woodburn Area Tourism projects and budget. authorize the
Page 1 - Council Meeting Minutes,February 25, 2013
1
COUNCIL MEETING MINUTES
FEBRUARY 25, 2013
renewal of a proposed three year agreement effective June 30, 2013 through June 30, 2016
with the Woodburn Area Chamber of Commerce. Motion passed unanimously.
AWARD OF CONSTRUCTION CONTRACT FOR I-5 INTERCHANGE AND
1:23
TRANSIT FACILITY –WATERLINE RELOCATION AT EVERGREEN
EXTENSION Cox/McCallum…
.acting as the Local Contract Review Board, award the
construction contract for the I-5 Interchange-Waterline Relocation at Evergreen Extension
Project to Canby Excavating, Inc. in the amount of $180,900. Motion passed unanimously.
OREGON LIBRARY PASSPORT PROGRAMCox/McCallum…
authorize the City of
1:24
Woodburn to participate in the Oregon Library Passport Program. Motion passed
unanimously.
DIRECTOR’S APPROVAL OF PARTITION PAR 2013-01 AND STREET
1:26
EXCEPTION EXCP 2013-01, LOCATED AT 1050 N. EVERGREEN ROAD (WEST
COAST BANK)
Councilor McCallum requested that Economic and Development Director
Hendryx clarify what is happening with this and Director Hendryxanswered that this a
partition for Woodburn Crossing and that the applicant would like to divide the property into
two lots. Council declined to call this item up for review.
CITY ADMINISTRATOR’S REPORT
1:30
City Administrator Derickson informed the City Council that the first E-blast was sent out
last week to 615 people.
MAYOR AND COUNCIL REPORTS
Councilor McCallum wished Doug Burkhardt the very best at his new position in Hillsboro.
1:32
He also mentioned that a Prescription Drug Summit will be taking place on April 25 at
Silverton Health Center from 6:00 to 8:00.
Councilor Ellsworth encouraged the City to look into a document shredding event. She also
mentioned that she is attending the Woodburn Police Departments Citizens Academy and
that Detective Puente is doing a great job.
ADJOURNMENT
1:35
McCallum/Lonergan
...meeting be adjourned. The motion passed unanimously.
The meeting adjourned at 8:36pm.
APPROVED
KATHRYN FIGLEY, MAYOR
ATTEST
Heather Pierson,City Recorder
City of Woodburn, Oregon
Page 2 - Council Meeting Minutes,February 25, 2013
2
3
4
5
6
7
Agenda Item
March 11, 2013
TO:Honorable Mayor and City Council through City Administrator
THRU: Scott Russell, Chief of Police
FROM:Jason R. Alexander, Captain
SUBJECT:
Full On-Premise Sales – Greater Privilege
RECOMMENDATION:
The Woodburn City Council recommends that the OLCC approve the
Full On-
applicationfor El Agave Grill Restaurant LLC.
Premise Sales – Greater Privilege
BACKGROUND:
Applicants:Jose Angulo-Guzman
355 Harvard Dr.
Woodburn, OR 97071
503.703.1924
Elizabeth Sonia Garcia
355Harvard Dr.
Woodburn, OR 97071
503.703.1924
Business:El Agave Grill Restaurant LLC
1615 Mt. Hood Ave.
Woodburn, OR 97071
503-982-3838
Owners: Same as Applicant (Above)
Agenda Item Review:City Administrator ___x___City Attorney __x____Finance __x___
8
Honorable Mayor and City Council
March 11, 2013
Page 2
License Type: Permits beer, wine, cider, and hard
Full On-Premise Sales-
alcohol sales for on-premise consumption only.
On February 19, 2013,the Woodburn Police Department received an
application, requesting approval for a
Full On-Premise Sales – Greater Privilege
El Agave Grill Restaurant LLClocated at 1615 Mt. Hood Ave. Woodburn,
Oregon.This location currently holds a Limited On-Premises Sale License through
the Oregon Liquor Control Commission.
The business will be openSunday 8:00am to 9:00pm Monday thru Thursday from
8:00am to 11:00pm and Friday and Saturday 6:00am to 4:00am. There will be
hot food service while the business is open and alcohol will be served during this
time. There willnot belive music, karaoke, video lottery games, or pool tables.
The Police Department has received no communication from the public or
surrounding businesses in support of or against the new outlet.
DISCUSSION:
The Police Department has completed a background investigation, in
connection with the OLCC,on the applicant and found nothing of a
questionable nature, which would preclude the issuance of this license.
However, if approved,this business will be adjacentto two other (Monte Carlos
and Mangos Tavern)Full On-Premise Sales locations.
FINANCIAL IMPACT:
None.
9
Agenda Item
March 11, 2013
TO:Honorable Mayor and City Council
FROM:Scott C. Derickson, City Administrator
N. Robert Shields, City Attorney
SUBJECT:
WAVE Cable Television Franchise
:
RECOMMENDATION
Adopt the ordinance.
:
BACKGROUND
In 2001, the City adopted Ordinance 2307 and granted a franchise (“the Existing
Franchise”) to Willamette Broadband, LLC to operate a cable television system.
Willamette Broadband, LLC then became WaveDivision VII, LLC, which does
business in Woodburn as Wave Broadband.
After several drafts were exchangedbetween WAVE’s corporate attorney and
the City Attorney atentative agreement was reached on everything in this
lengthy document except for the Woodburn Community Access Television
(WCAT) provisions and the institutional network (I-Net) sections. On January 30,
2013, the City’s negotiating teamand a WCAT representative met with WAVE
officials inan effort to finalize the franchise agreement.The City’s main concern
going into the meeting was the possibility that the production of publicaccess
television in Woodburn could be jeopardized. Due to WAVE’s community spirit
and cooperation, however, we are happy to report that this will not be the case
and that the WCAT operation will be able to continue as it presently operates.
:
DISCUSSION
The Franchise grants WAVE the right to use the public rights-of-way to provide
cable television services. It is for a 10 year period and is not exclusive in that the
City reserves the right to grant a similarfranchise to another cable television
pursuant to the requirements of state and federal law.
Agenda Item Review:City Administrator ___x___City Attorney ___x___Finance __x___
10
Honorable Mayor and City Council
March 11, 2013
Page 2
Highlights of the new franchise include:
The franchise isvalid for a period often (10) years following the effective
date.
The franchise fee is 5% of WAVE’s gross revenues. This is the maximum
percentage allowed by federal law and is the same percentage imposed
under the prior franchise.
Any transfer of the franchise must be approved by the CityCouncil.
All construction related provisions of the franchise were reviewed by the
Public Works Director and found to be workable and reasonable.
All legal provisions of the franchise were negotiated by the City Attorney
and adequately protect the Cityfrom different eventualities. The
performance bond requirement was reduced because WAVE has existed
for some timeand has a good “track record” and relationship with the
City.
A provision was negotiated so that if WAVE converts to an all-digital
format, it has the obligation to provide signal conversion equipment for
the primary televisions of all subscribers who request this equipment.
A total of $40,000 will be paid by WAVE for equipment purchase and
replacement to support community access television in addition to a per
subscriber amount of $1.25 per subscriber for this purpose.
Supplementing the community access television equipment money,
WAVE agreed to pay an additional $1500 per month to WCAT. In return,
WCAT will allow WAVE to broadcast “sponsorship announcements” similar
to those aired on public television programs.
The negotiation of the Franchise was successfully completed by city staff “in
house” without the assistance of a cable television consultant or outside legal
counsel. This resulted in a significant monetary savings.
An emergency clause was added to the ordinance so that the new franchise
can become immediately operational after its formal acceptance by WAVE.
11
Honorable Mayor and City Council
March 11, 2013
Page 3
:
FINANCIAL IMPACT
Franchise fees are an important part of City revenue. During Fiscal Year 2011-
2012, WAVE paid $100,286 to the City.
12
COUNCIL BILL NO. 2919
ORDINANCE NO. 2500
AN ORDINANCEGRANTING A CABLE TELEVISION FRANCHISE TO WAVEDIVISION
VII, LLC D/B/A WAVE BROADBAND AND DECLARING AN EMERGENCY
Ordinance 2307 granted a franchise (“the Existing Franchise”)
WHEREAS,
to Willamette Broadband, LLC to operate a cable television system for a 10 year
period within the corporate limits of the City of Woodburn; and
WaveDivision VII, LLC d/b/a Wave Broadband is the successor-
WHEREAS,
in-interest to Willamette Broadband,LLC; and
the parties to the existing Franchise have been negotiating in
WHEREAS,
good faith towards renewal; and
the parties have agreed to a new non-exclusive 10-year
WHEREAS,
franchise agreement;
NOW, THEREFORE,
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
The City of Woodburn hereby grants to WaveDivision VII, LLC
Section 1.
d/b/a Wave Broadband a cable television franchise (the “Franchise”) under the
authority of and in accordance with the Woodburn City Charter, applicable city
ordinances, Oregon state law, the Cable Communications Policy Act of 1984, as
amended by the Cable Communications Policy Act of 1992 and the
Telecommunications Act of 1996.
The terms and conditions of the Franchise are memorialized in
Section 2.
the City of Woodburn CableFranchise Agreement,which is affixed to this
ordinance as Attachment “A” and is by this reference incorporated herein.
The duration of the Franchise shall be ten (10) years subject to
Section 3.
all of the terms and conditions provided in the Woodburn Cable Franchise
Agreement.
The Franchise shallreplace the Existing Franchise granted
Section 4.
pursuant to Ordinance 2307and the terms and conditions of the prior franchise
shall have no further legal force and effect.
This ordinance being necessary for the immediate preservation
Section 5.
of the public peace, health and safetyso that franchised cable television
Page 1 –Council Bill No. 2919
Ordinance No. 2500
13
service can continue, an emergency is declared to exist and this ordinance shall
take effect immediately upon passage and approval by the Mayor.
Approved as to form:
City AttorneyDate
Approved:
Kathryn Figley, Mayor
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST:
Heather Pierson, City Recorder
City of Woodburn, Oregon
Page 1 –Council Bill No. 2919
Ordinance No. 2500
14
City of Woodburn Cable Franchise
TABLE OF CONTENTS
1.PURPOSE AND INTENT .......................................................................................... 1
1.1Intent ..................................................................................................................
1
1.2Purpose ...............................................................................................................
1
2.DEFINITIONS ............................................................................................................ 2
3.GRANT OF FRANCHISE .......................................................................................... 9
3.1Grant ...................................................................................................................
9
3.1.AGrant of Franchise................................................................................................ 9
3.1.BPolice Power and Laws ......................................................................................... 9
3.1.CCompliance by Affiliates ...................................................................................... 9
3.1.DNo Rights by Implication ..................................................................................... 9
3.2Use of Streets and Public Ways ....................................................................... 10
3.3Duration and Effective Date of Franchise ....................................................... 10
3.4Franchise Not Exclusive .................................................................................. 10
3.5Franchise Non-Transferable ............................................................................ 11
3.5.ANo Transfer Without Consent ........................................................................... 11
3.5.BNotification ......................................................................................................... 11
3.5.CRequest for Approval .......................................................................................... 11
3.5.DCable Act Requirements Apply .......................................................................... 11
3.5.EFiling Evidence of Transfer ............................................................................... 12
3.5.FGrantor Inquiry into Qualifications .................................................................. 12
3.5.GApproval No Waiver ........................................................................................... 12
3.5.HExceptions ........................................................................................................... 12
3.6Franchise Acceptance ....................................................................................... 13
3.6.AFiling ................................................................................................................... 13
3.6.BFailure to File ..................................................................................................... 13
4.CONSTRUCTION AND SERVICE REQUIREMENTS ....................................... 14
4.1General ............................................................................................................. 14
4.2Construction ..................................................................................................... 14
4.3Right of Inspection of Construction ................................................................. 14
4.4Provision of Residential Service ....................................................................... 14
4.4.AIn General ........................................................................................................... 14
15
City of Woodburn Cable Franchise
4.4.BLow-density Areas .............................................................................................. 15
4.4.CCommercial Rates ............................................................................................... 16
4.4.DNewly Annexed Areas ........................................................................................ 16
4.4.ENew Subdivisions ............................................................................................... 16
4.4.F Areas Already Served ......................................................................................... 17
4.5Erection of Poles ............................................................................................... 17
4.6Trimming of Trees or Other Vegetation .......................................................... 17
4.7Repair and Restoration of Streets, Public Ways and Grounds ....................... 17
4.8Construction Codes...........................................................................................18
4.9Reservations of Street Rights........................................................................... 18
4.10Street Vacation and Abandonment .................................................................. 18
4.11Movement of Facilities..................................................................................... 19
4.12Undergrounding ............................................................................................... 19
4.12.AUnderground Requirement ................................................................................ 19
4.12.BUse of Conduit .................................................................................................... 19
4.13Location Maps .................................................................................................. 20
4.14Emergency ........................................................................................................ 20
5.SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS ......................... 21
5.1System Configuration ....................................................................................... 21
5.2Emergency Alert Capability ............................................................................. 21
5.3Standby Power .................................................................................................. 21
5.4Parental Control Lock ...................................................................................... 21
5.5Technical Standards......................................................................................... 21
5.6Performance Testing ........................................................................................ 21
5.6.ASchedules ............................................................................................................ 21
5.6.BReporting ............................................................................................................. 22
5.6.CInspection ............................................................................................................ 22
5.6.DFCC Compliance ................................................................................................. 22
5.6.ERemedy for Non-Compliance ............................................................................. 22
6.SERVICES AND PROGRAMMING ....................................................................... 23
6.1Programming Categories and Number of Services .......................................... 23
6.2Changes in Video Programming Services ........................................................ 23
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City of Woodburn Cable Franchise
6.3Leased Channel Service ................................................................................... 23
6.4Community Access and Local Programming ................................................... 23
6.4.AManagement and Control of Access Channels ................................................. 23
6.4.BChannel Capacity and Use ................................................................................ 24
6.4.CFinancial Support for PEG Access .................................................................... 26
6.4.DStudio .................................................................................................................. 27
6.4.EPEG Support Not Franchise Fees ..................................................................... 28
6.4.FTechnical Quality ............................................................................................... 28
6.4.GChange in Technology ........................................................................................ 28
6.4.HNon-Commercial Use ......................................................................................... 28
6.4.IInterconnection of PEG Access .......................................................................... 29
6.5Institutional Network....................................................................................... 30
6.5.AObligation to Construct ...................................................................................... 30
6.5.BI-Net Design, Functionality and Management ................................................. 30
6.5.CInterconnection of I-Net ..................................................................................... 30
6.5.DLimits on Use ...................................................................................................... 31
6.5.ENo Charge for I-Net Use .................................................................................... 3 3
7.FRANCHISE REGULATION AND CUSTOMER SERVICE STANDARDS ..... 34
7.1Intent ................................................................................................................ 34
7.2Areas of Regulation and Administration ......................................................... 34
7.3Rate Regulation ................................................................................................ 34
7.3.ARate Regulation Right Reserved ....................................................................... 34
7.3.BRate Discrimination Prohibited ......................................................................... 34
7.3.CProvisions Subject to the Cable Act................................................................... 35
7.4Remedies for Franchise Violations .................................................................. 35
7.4.ANotification ......................................................................................................... 35
7.4.BPlan for Cure ....................................................................................................... 36
7.4.CImposition of Liquidated Damages ................................................................... 36
7.4.DContest of Violation ............................................................................................ 36
7.4.EOpportunity to Be Heard ................................................................................... 36
7.4.FReduction of Liquidated Damages..................................................................... 37
7.4.GNature of Remedies ............................................................................................ 37
7.5LIQUIDATED DAMAGES ............................................................................... 37
7.5.AAmounts: ............................................................................................................. 37
7.5.BCollection of Liquidated Damages. .................................................................... 38
7.5.CRecourse to Securities ........................................................................................ 38
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City of Woodburn Cable Franchise
7.5.D Liquidated Damages Maximum ........................................................................ 38
7.6Remedies Not Exclusive ................................................................................... 39
7.7Customer Service & Consumer Protection Standards .................................... 39
7.7.ACustomer Service and Telephone Responsiveness ........................................... 39
7.7.BService and Repair Calls .................................................................................... 39
7.7.CDisconnection ...................................................................................................... 40
7.7.DCredits Upon Outage .......................................................................................... 41
7.7.EDowngrade Charges ........................................................................................... 41
7.7.FBilling Information Required............................................................................. 41
7.7.GInformation to Subscribers ................................................................................ 41
7.7.HComplaint Acknowledgment .............................................................................. 42
7.7.IComplaint Resolution ......................................................................................... 43
8.GENERAL FINANCIAL AND INSURANCE PROVISIONS .............................. 44
8.1Compensation ................................................................................................... 44
8.1.AFranchise Fee ...................................................................................................... 44
8.1.BPayment of Franchise Fees ................................................................................ 44
8.1.CFranchise Fees on Bundled Services ................................................................. 44
8.2Faithful Performance Bond .............................................................................. 45
8.2.APosting ................................................................................................................. 45
8.2.BPayment of Premiums ........................................................................................ 45
8.2.CNotice of Termination......................................................................................... 45
8.3Construction Bond ............................................................................................ 46
8.4Damages and Defense ...................................................................................... 46
8.4.AGeneral Indemnification .................................................................................... 46
8.4.BDefense of the Franchise .................................................................................... 46
8.5Liability Insurance and Indemnification ......................................................... 47
8.5.AInsurance Coverage ............................................................................................ 47
8.5.BMinimums and Limits ........................................................................................ 47
8.5.CAdditional Insureds ............................................................................................ 47
8.5.DCancellation and Replacement .......................................................................... 48
8.5.ECertificate of Insurance ...................................................................................... 48
8.5.FGrantor Held Harmless ...................................................................................... 48
9.RIGHTS RESERVED TO GRANTOR.................................................................... 49
9.1Grantor’s Purchase of the System .................................................................... 49
9.1.AContinuation of Operations / Purchase at Fair Market Value ........................ 49
9.1.BTransfer of System to Others ............................................................................. 49
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City of Woodburn Cable Franchise
9.1.CCable Act Requirements ................................................................................... 50
9.2Eminent Domain .............................................................................................. 50
9.3Right to Perform Franchise Fee Audit or Review ........................................... 50
9.4Right of Inspection of Construction ................................................................. 50
9.5Intervention ...................................................................................................... 51
9.6Right to Require Removal of Property ............................................................. 51
10.RIGHTS OF INDIVIDUALS PROTECTED .......................................................... 52
10.1Discriminatory Practices Prohibited ................................................................ 52
10.1.AGrantee Shall Not Unlawfully Discriminate .................................................... 52
10.1.BServices to Disabled ........................................................................................... 52
10.1.CPermitted Discounts ........................................................................................... 52
10.2Privacy and Other Rights ................................................................................. 52
10.3Permission of Property Owner Required ......................................................... 5 3
10.4Multiple Dwelling Units ................................................................................... 5 3
11.TERMINATION AND EXPIRATION ..................................................................... 54
11.1Revocation ........................................................................................................ 54
11.1.AGeneral ................................................................................................................ 54
11.1.BConditions of Revocation .................................................................................... 54
11.1.CDue Process ......................................................................................................... 54
11.2Receivership ..................................................................................................... 55
11.3Expiration ......................................................................................................... 56
11.4Continuity of Service Mandatory ..................................................................... 56
12.OPERATION AND MAINTENANCE ..................................................................... 5 6
12.1Books and Records ............................................................................................ 5 6
12.2Communications with Regulatory Agencies .................................................... 5 6
12.3Reports .............................................................................................................. 5 7
12.3.AForm of Reports .................................................................................................. 5 7
12.3.BAnnual Report ..................................................................................................... 5 8
12.3.CAdditional Reports .............................................................................................. 5 8
12.4Safety ................................................................................................................ 59
12.4.ASafety Standards ................................................................................................ 59
12.4.BAdherence to National Electric Safety Code ..................................................... 59
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City of Woodburn Cable Franchise
12.4.CProper Maintenance of Equipment ................................................................... 59
13.MISCELLANEOUS PROVISIONS ......................................................................... 6 0
13.1Compliance with Laws..................................................................................... 6 0
13.2Severability ....................................................................................................... 6 0
13.3Captions ............................................................................................................ 6 0
13.4No Recourse Against the Grantor .................................................................... 6 0
13.5Nonenforcement by Grantor ............................................................................ 6 0
13.6Force Majeure ................................................................................................... 6 1
13.7Entire Agreement ............................................................................................. 6 1
13.8Consent ............................................................................................................. 6 1
13.9Notices and Time Limit for Grantee Communications ................................... 6 1
13.10Consistency of Franchise with Cable Act ........................................................ 6 1
13.11Franchise Review ............................................................................................. 6 2
13.12Grantee Responsibility for Costs of Franchise Compliance ............................ 6 2
13.13Notice ................................................................................................................ 6 2
13.14Grantor Rights Upon Termination .................................................................. 6 2
13.15No Waiver ......................................................................................................... 6 3
EXHIBIT A: Origination Points ....................................................................................... 6 4
EXHIBIT B: Acceptance and Guarantee........................................................................ 6 5
EXHIBIT C: Price for Work—Incremental Cost ........................................................... 66
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City of Woodburn Cable Franchise
1.PURPOSE AND INTENT
1.1Intent
The City of Woodburn, Oregon (hereafter Grantor) is authorized to and by this
Franchise agreement does grant to WaveDivision VII, LLC d/b/a Wave Broadband
(hereafter Grantee) a non-exclusive 10-year Franchise, revocable as provided herein,
Franchise Area as that term
to construct, operate and maintain a Cable System in the
is defined herein.
1.2Purpose
The purpose of this Franchise agreement is to create a binding, enforceable contract
between Grantor and Grantee.
1 - PURPOSE & INTENT / Page 1
March 6, 2013 WAVE
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City of Woodburn Cable Franchise
2.DEFINITIONS
For the purposes of this Franchise agreement, the following words, terms, phrases, and
their derivations shall have the meanings given herein. When not inconsistent with the
context, words used in the present tense include the future tense, words in the plural
number include the singular number, and words in the singular number include the plural
number. The word “shall” is always mandatory and not merely directory. Words used in
this Franchise which are not defined hereunder but defined in the Cable Communications
Policy Act of 1984, as amended by the Cable Communications Policy Act of 1992 and the
Telecommunications Act of 1996, (Cable Act), shall have the meaning specified in the Cable
Act definition.
2.1“Access” or “Community Access” or “Public, Educational
and Government (PEG) Access”
means the availability for use by various agencies, institutions, organizations,
groups and individuals in the community, including the Grantor and its designees,
of the Cable System to acquire, create, and distribute non-commercial Programming
not under the Grantee's editorial control.
2.2“Access Channel” or “Public, Educational or Government
Access (PEG) Channel”
means any channel or portion of a channel utilized for non-commercial
programming, where any member of the general public or any organization may be a
programmer, without charge by the Grantee, on a non-discriminatory basis.
2.2.A“Educational Access Channel"
means any channel or portion of a channel available for educational
programming by individuals or institutions.
2.2.B"Government Access Channel"
means any channel or portion of a channel available for programming by
government agencies.
2.2.C"Public Access Channel"
means any channel or portion of a channel where any member of the general
public may be a programmer on a non-discriminatory basis.
2.3“Addressability”
means the capability of the Cable System by which the cable operator can add, drop
or delete subscriber programming from a remote location, without the need for a site
visit.
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City of Woodburn Cable Franchise
2.4“Affiliate”
means, when used in relation to any person, another person who owns or controls, is
owned or controlled by, or is under common ownership or control with, such person.
2.5“Basic Cable Service”
means that tier of cable service which is required as a condition of access to all other
video services and which includes but is not limited to a) the retransmission of local
broadcast station signals, and b) public, educational and government access
channels.
2.6“Broadcast Signal”
means a television or radio signal that is transmitted over-the-air to a wide
geographic audience and is received by the Cable System off the air, whether by
microwave link, by satellite receiver, or by other means.
2.7 “Cable Act”
means the federal Cable Communications Policy Act of 1984, as amended,
including provisions of the Cable Television Consumer Protection and
Competition Act of 1992 and the Telecommunications Act of 1996 as may
be amended from time to time.
2.8“Cable Service”
means a) the one-way transmission to subscribers of video programming or other
programming service; and b) subscriber interaction, if any, which is required for the
selection or use of such video programming or other programming service.
2.9“Cable Operator”
any person or group of persons (a) who provides cable service over a cable system
and directly or through one or more affiliates owns a significant interest in such
cable system, or (b) who otherwise controls or is responsible for, through any
arrangement, the management and operation of such a cable system
2.10“Cable System” or “System”
shall have the meaning specified in the definition of "Cable System" in the Cable
Act. In every case of its use in this Franchise, unless otherwise specified or made
clear by the context, the term shall refer to the cable system constructed and
operated by the Grantee in the City of Woodburn under this Franchise.
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City of Woodburn Cable Franchise
2.11“Channel”
means a portion of the electromagnetic frequency spectrum which is used in a cable
system and which is capable of delivering a television channel (as television channel
is defined by the FCC by regulation).
2.12“City”
means the City of Woodburn, Oregon, a municipal corporation, and all of the
territory within its corporate boundaries, as such may change from time to time.
2.13“Converter”
means a device for changing the frequency of a television signal. A set-top converter
changes the frequency of signals to a suitable channel which the television receiver
is able to tune.
2.14“FCC”
means the Federal Communications Commission.
2.15Financial Partner
means Oak Hill Capital Partners III, L.P.; and GI Wave Holdings LLC; or the
successor of any of these companies.
2.16“Franchise”
means the authorization granted by this document, or renewal thereof (including
renewal of an authorization which has been granted subject to Section 626 of the
Cable Act), issued by a franchising authority, whether such authorization is
designated as a Franchise, permit, license, resolution, contract, certificate,
agreement, or otherwise, which authorizes the construction or operation of a cable
system. Unless otherwise specified or made clear by the context, "Franchise" shall
designate this agreement, including all referenced material, adopted in the
appropriate manner by the Grantor.
2.17“Franchise Area”
means all portions of the City of Woodburn, as now or hereafter constituted.
2.18“Grantee”
means WaveDivision VII, LLC and the lawful successors, transferees, or assignees
thereof.
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City of Woodburn Cable Franchise
2.19“Grantor”
means the City of Woodburn, a political subdivision of the State of Oregon.
2.20 “Gross Revenues”
means any revenue received by the Grantee and all Affiliates from the operation of
the Cable System to provide Cable Service in the Service Area, provided, however,
that such phrase shall not include: (1) any tax, fee or assessment of general
applicability collected by the Grantee from Subscribers for pass-through to a
government agency; (2) unrecovered bad debt; (3) refunds, rebates or discounts made
to Subscribers or other third parties; (4) sales of capital assets or sales of surplus
equipment; and (5) revenue from cable internet service, any service or product that
has not been determined by federal law or regulation to be a Cable Service, or any
other product or service offered subsequent to the date of execution of this
agreement unless and until such service is finally and specifically determined by the
Federal Communications Commission, Federal Court, or Congress, after all
appellate remedies have been exhausted and finally concluded, to .be a Cable
Service. For purposes of Subsection 3.11, the term "affiliate" shall mean an entity
providing service within the service area and which provides "cable service" as
finally and specifically determined by the Federal Communications Commission,
Federal Court, or Congress, as contractors, subcontractors, assignees, or subsidiaries
of, for and at the request of the Grantee during the term of this franchise.
2.21“Institutional Service”
means video, audio, data and other services provided to institutional subscribers on
an individual application, private channel basis. These services may include, but
are not limited to, two-way video, audio or digital signals among institutions, or
between institutions and residential subscribers.
2.22“Institutional Network”
means that part of a Cable System designed principally for the provision of non-
entertainment, non-profit and non-commercial programming, provided such use does
not exceed the limitations agreed to in Section 6.5.F of this document.
2.23“Institutional Subscriber”
means a public agency, school or non-profit corporation receiving institutional
services on the institutional subscriber network.
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City of Woodburn Cable Franchise
2.24“Interconnection”
means the linking of the Cable System or I-Net with another cable system,
communications system or I-Net, or the linking of locations connected to portions of
the Cable System outside the Franchise Area and those portions of the Cable System
inside the Franchise Area, including technical, engineering, physical, financial, and
other necessary components to accomplish, complete, and adequately maintain such
linking, in a manner that permits the transmission and receiving of electronic or
optical signals between the systems or locations. Such linking does not necessarily
include the provision of end-user equipment for generating or receiving signals.
2.25“Leased Channel”
means any channel or portion of a channel available for programming by persons or
entities other than Grantee for a fee or charge.
2.26“Pay Channel” or “Premium Channel”
means a channel on which television signals are delivered to subscribers for a
special fee or charge over and above the regular charges for standard subscriber
service, on a per program, per channel, or other subscription basis.
2.27“Person”
means an individual, proprietorship, partnership, association, joint stock company,
trust, corporation, or governmental entity.
2.28“Programmer”
means any person or entity who or which produces or otherwise provides program
material or information for transmission by video, audio, digital or other storage
methods or media, to subscribers, by means of the Cable System.
2.29“Programming”
means the process of causing television programs or other patterns of signals in
video, voice or data formats to be transmitted on the Cable System, and includes all
programs or patterns of signals transmitted or capable of being transmitted, on the
Cable System.
2.30“Record”
means written or graphic materials, however produced or reproduced, or any other
tangible permanent record, including, without limitation, all letters, correspondence,
memoranda, minutes, notes, summaries or accounts of telephone conversations,
magnetic and laser disk files, opinions or reports of consultants or experts, invoices,
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City of Woodburn Cable Franchise
billings, statements of accounts, studies, appraisals, analyses, contracts,
agreements, charts, graphs, and photographs.
2.31“Resident”
means any individual person residing within the Franchise area.
2.32“Residential Service”
means services delivered on the residential subscriber network.
2.33“Residential Subscriber”
means a subscriber who receives services on the Residential Network.
2.34“Residential Network”
means a Cable System designed principally for the delivery of Cable Services to
individual dwelling units.
2.35“School”
means any public educational institution, including primary and secondary schools,
community colleges, colleges, universities and extension centers, and all similarly
situated private and parochial educational institutions which have received the
appropriate accreditation from the State of Oregon and, where required, from other
authorized accrediting agencies.
2.36“Section”
means any section, subsection or provision of this Franchise agreement, unless
otherwise made clear by the context.
2.37“Streets and Public Ways”
means the surface of and the space above and below any public street, sidewalk,
alley, or other public way of any type whatsoever, now or hereafter existing as such
within the Franchise area, and any easements, rights of way or other similar means
of access to the extent Grantor has the right to allow Grantee to use them.
2.38“Subscriber”
means any person who elects to subscribe to, for any purpose, a service provided by
the Grantee by means of, or in connection with, the Cable System whether or not a
fee is paid for such service.
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City of Woodburn Cable Franchise
2.39 “Year’
means a full twelve-month calendar year, unless designated otherwise, such as a
"fiscal year".
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City of Woodburn Cable Franchise
3.GRANT OF FRANCHISE
3.1Grant
3.1.AGrant of Franchise
Grantor hereby grants to the Grantee a non-exclusive, revocable Franchise
for a 10-year period from and after the effective date hereof, revocable as
provided herein, to construct, operate and maintain a Cable System,
including an Institutional Network, within the Franchise Area. This
Franchise authorizes Grantee to engage in providing Cable Service. This
Franchise shall not be interpreted to prevent the Grantor from imposing lawful
additional conditions, including additional compensation conditions for use of
the Rights-Of-Way should Grantee provide service other than Cable Service and
such other service places additional burdens on the Rights-Of-Way.
3.1.BPolice Power and Laws
This Franchise is subject to the laws of the United States and the State of
Oregon, and to the police powers of Grantor to adopt and enforce ordinances of
the Grantor affecting matters of general applicability and not merely
Grantee, whether now existing or hereinafter enacted. Grantee agrees to
comply with all applicable laws, regulations and ordinances enacted, or
hereafter enacted, by Grantor or any other legally constituted governmental
unit having lawful jurisdiction over the subject matter hereof. Nothing in this
Franchise, however, shall be construed as a waiver of any right Grantee has by
law, nor interpreted to prevent Grantee from challenging the lawfulness or
enforceability of any provision of applicable law, including any purported use of
the police power.
3.1.CCompliance by Affiliates
Grantee promises and guarantees as a condition of exercising the privileges
granted by this Franchise, that any Affiliate or joint venture or partner of the
Grantee which assumes actual working control over in whole or in part the
management or operation of the Cable System to provide Cable Service in the
Franchise Area, will also comply with the terms and conditions of this
Franchise.
3.1.DNo Rights by Implication
No rights shall pass from Grantor to the Grantee by implication. Without
limiting the foregoing, by way of example and not limitation, the Franchise
shall not include or be a substitute for:
1)Any other permit or authorization required for the privilege of
transacting and carrying on a business within the City that may
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City of Woodburn Cable Franchise
be required under generally applicable ordinances and laws of the
Grantor;
2)Any permit, agreement or authorization required under generally
applicable ordinances and laws of the Grantor in connection with
operations on or in Public Rights of Way or property, including by
way of example and not limitation, street cut permits; or
3)Any permits or agreements for occupying any other property of
the Grantor or private entities to which access is not specifically
granted by this Franchise including, without limitation, permits
and agreements for placing devices on or in poles, conduits, other
structures, or railroad easements, whether owned by the Grantor
or a private entity. This provision should not be interpreted to
restrict Grantee’s general franchise rights under 47 U.S.C. §
541(a).
3.2Use of Streets and Public Ways
For the purpose of constructing, operating and maintaining a Cable System in the
Franchise area, the Grantee may erect, install, audit, construct, repair, replace,
reconstruct, and retain in, on, over, under, upon, across, and along the public streets
and ways within the Franchise area such wires, cables, conductors, ducts, conduits,
vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property
and equipment as are necessary, convenient and appurtenant to the operation of the
Cable System. Prior to construction or alteration, however, the Grantee shall in
each case file plans as required with the appropriate agencies of Grantor and pay
applicable fees, and receive approval as necessary before proceeding.
3.3Duration and Effective Date of Franchise
Except as otherwise provided herein for revocation, the term of this Franchise and
all rights, privileges, obligations and restrictions pertaining thereto shall be ten (10)
years from the effective date of this Franchise, at which time the Franchise shall
expire and be of no force and effect. The effective date of the Franchise shall be
March 1, 2013 unless the Grantee fails to file the Franchise acceptance in
accordance with Section 3.6 herein, or to establish the performance bond and
security fund in accordance with Sections 8.2 and 8.4, in which event this Franchise
shall be null and void.
3.4Franchise Not Exclusive
The Franchise granted herein is not exclusive. This Franchise shall not be
construed as any limitation upon the right of the Grantor, through its proper
officers, to grant to other persons or corporations, including itself, rights, privileges
or authority the same as, similar to or different from the rights, privileges or
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City of Woodburn Cable Franchise
authority herein set forth, in the same or other streets and public ways or public
places by Franchise, permit or otherwise.
In the event the City enters into a franchise, permit, license, authorization or other
agreement of any kind with any other Person or entity other than the Grantee to
enter into the Public Rights-of-Way for the purpose of constructing or operating a
Cable System or providing Cable Service to any part of the Franchise Area, and such
franchise, permit, license, authorization, or agreement contains terms which are
materially more favorable than this Franchise, Grantee may request that the City
amend this Franchise to give the Grantee the reasonably comparable benefit of any
such terms. The City shall rule promptly on such request.
3.5Franchise Non-Transferable
3.5.ANo Transfer Without Consent
Neither the Cable System nor this Franchise may 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 title
thereto, either legal or equitable, or any right, interest, or property therein
pass to or vest in any Person, nor may actual working control of the Grantor
be changed, transferred or acquired without the prior written consent of the
Grantor, which consent shall not be unreasonably withheld. The word
“control” as used in this Section 3.5 is not limited to majority stockholders but
includes actual working control in whatever manner exercised. This Section
is not intended to require Grantor’s consent to the hiring and firing of
employees.
3.5.BNotification
The Grantee shall promptly notify the Grantor of any actual or proposed change
in, or transfer of, or acquisition by any other party of control of the Grantee.
Every change, transfer or acquisition of control of the Grantor shall make this
Franchise subject to cancellation unless and until the Grantor shall have
consented thereto.
3.5.CRequest for Approval
The parties to the sale or transfer shall make a written request to the Grantor
for its approval of a sale or transfer and furnish all information required by law
and the Grantor.
3.5.DCable Act Requirements Apply
In accordance with Section 617 of the Cable Act, applicable at the time of the
granting of this Franchise, the Grantor shall render a final written decision on
the request within one-hundred twenty (120) days of the request, provided it
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City of Woodburn Cable Franchise
has received all required information. Subject to the foregoing, if the Grantor
fails to render a final decision on the request within one hundred twenty (120)
days, such request shall be deemed granted unless the requesting party and the
Grantor agree to an extension of time. Should federal law change during the
term of this Franchise relative to the time limits and conditions placed on the
Grantor for responding to a request for transfer of ownership or control, the
Grantor shall respond to any such request from the Grantor in a manner
consistent with the changed federal law.
3.5.EFiling Evidence of Transfer
Within thirty (30) days of any transfer or sale, if approved or deemed granted
by the Grantor, Grantee shall file with the Grantor a copy of the deed,
agreement, lease or other written instrument evidencing such sale or transfer of
ownership or control, certified and sworn to as correct by Grantor and the
transferee.
3.5.FGrantor Inquiry into Qualifications
In reviewing a request for sale or transfer, the Grantor may inquire into the
legal, technical and financial qualifications of the prospective controlling party
or transferee, and Grantee shall assist the Grantor in so inquiring. The
Grantor may condition said sale or transfer upon reasonable terms and
conditions related to the legal, technical, and financial qualifications of the
prospective controlling party or transferee, and to the resolution of outstanding
and unresolved issues of noncompliance with the terms and conditions of this
Franchise by Grantor.
3.5.GApproval No Waiver
The consent or approval of the Grantor to any transfer by the Grantor shall not
constitute a waiver or release of any rights of the Grantor, and any transfer
shall, by its terms, be expressly subordinate to the terms and conditions of this
Franchise.
3.5.HExceptions
Notwithstanding anything to the contrary in this Section, the prior approval
of the Grantor shall not be required for any sale, assignment or transfer of
the Franchise or Cable System for cable television system usage to an entity
controlling, controlled by or under the same common control as Grantee
provided that the proposed assignee or transferee must show financial
responsibility as may be determined necessary by the Grantor and must
agree in writing to comply with all provisions of the Franchise. In addition,
this Section shall not apply: to sales of property or equipment in the normal
course of business; to any transfer in trust, mortgage, or other instrument of
hypothecation, in whole or in part, to secure an indebtedness, or; to sales of
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City of Woodburn Cable Franchise
less than 5% of common stock or other equity that do not effect a change in
actual working control of Grantee.
3.6Franchise Acceptance
3.6.AFiling
The Grantee shall unconditionally accept the terms of this Franchise by
filing a written acceptance with the City Administrator in the form
attached hereto as Exhibit B within 30 days after the date the Franchise
ordinance is passed by the City.
3.6.BFailure to File
In the event Grantee fails to file the acceptance as required herein, then this
Franchise shall be null and void.
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City of Woodburn Cable Franchise
4.CONSTRUCTION AND SERVICE REQUIREMENTS
4.1General
The Grantee shall maintain on its cable system a minimum practical capacity of one
hundred and twenty (120) activated channels, defined under the Cable Act as those
channels engineered at the headend of the cable system for the provision of services
generally available to residential subscribers of the cable system, regardless of whether
such services actually are provided. In all its construction and service provision activities,
Grantee shall meet or exceed the construction, extension and service requirements set
forth in this franchise agreement.
4.2Construction
Prior to beginning any construction other than routine installations or repairs for
individual Subscribers, Grantee shall provide Grantor with a construction schedule for
work in the Streets. All construction shall be performed in compliance with this
Agreement and all applicable Grantor Ordinances and Codes. When obtaining a permit,
Grantee shall inquire in writing about other construction currently in progress, planned or
proposed, in order to investigate thoroughly all opportunities for joint trenching or
boring. Whenever it is possible and reasonable practicable to joint trench or share bores
or cuts, Grantee shall work with other providers, grantees, permittees, and franchisees so
as to reduce as far as possible the number of Street cuts.
4.3Right of Inspection of Construction
Grantor shall have the right to inspect all construction or installation work
performed within the Franchise area and to make such tests as it shall find
necessary to ensure compliance with the terms of this Franchise agreement and
other pertinent provisions of law. Grantee shall reasonably cooperate to facilitate
such inspection and testing, and shall be subject to any fees or charges applicable
under ordinances or other laws or regulations affecting similarly situated users of
the Grantor’s rights of way.
4.4Provision of Residential Service
4.4.AIn General
It is the Grantor's general policy that all residences in the Grantee's
Franchise Area should have equivalent availability of Cable Service from
Grantee's Cable System under non-discriminatory rates and reasonable
terms and conditions. Grantee shall not arbitrarily refuse to provide Cable
Services to any Person within its Franchise Area.
Following a period of sixty (60) days after the date on which any part of the
Franchise Area has reached a minimum density of thirty (30) dwelling units
per linear strand mile, as measured from the nearest cable line, and
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City of Woodburn Cable Franchise
thereafter throughout the term of the Franchise, Grantee shall extend and
make cable television service available at the standard connection charge to
any resident within the Franchise area who requests connection, if the
connection to the resident would require no more than a standard one
hundred twenty-five (125) foot drop line or extension from the nearest feeder
cable. With respect to requests for connection requiring a drop line in excess
of the maximum standard distance, Grantee shall extend and make available
cable television service to such residents at a connection charge not to exceed
its actual costs for the distance exceeding the standard one hundred twenty-
five (125) feet of cable. In all new subdivisions or other areas where
undergrounding is required, cable plant and drops will be placed
underground; in other areas, new or replacement cable plant and drops will
be placed underground whenever feasible.
4.4.BLow-density Areas
In low-density Areas (those having fewer than thirty (30) residential units
per proposed cable bearing strand mile) Grantee shall offer a cost-sharing
arrangement with residents. A dwelling unit will be counted for this purpose
if its lot fronts a street. At the request of a resident desiring service in such a
low-density area, Grantee shall determine the cost of the plant extension
required to provide service to the potential subscriber from the closest point
on the Cable System where it is technically feasible. The cost of construction
shall be allocated based on the following terms:
1)If a request for extension of service into a residential area
requires the construction of cable plant which does not pass at
least thirty (30) potential subscribers per proposed cable bearing
strand mile, Grantee and residents who agree to subscribe to
cable service will each bear their proportionate share of
construction costs. For example, if there are five (5) dwelling
units per proposed cable bearing strand mile, Grantee's share will
equal 5/30ths or one sixth (1/6) of the construction cost. The
remaining cost will be shared equally by each subscriber.
2)Should additional residents actually subscribe to cable television
service in areas where subscribers have already paid a
proportionate share under the extension cost sharing formula,
subscribers who have previously paid a proportionate share under
the extension formula shall be reimbursed pro rata for their
contribution or a proportional share thereof. In such case, the pro
rata shares shall be recalculated and each new subscriber shall
pay the new pro rata share, and all subscribers who previously
paid a proportionate share shall receive pro rata refunds. In the
event such subscribers (or prior subscribers) have been
disconnected or have moved and owe the Grantee money which
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City of Woodburn Cable Franchise
has not been recovered, Grantee shall have the right to first apply
the refund to amounts owed the Grantee and give the balance, if
any to the subscriber. At such time as there are thirty (30)
potential subscribers per cable bearing strand mile, the
subscribers shall receive their pro rata share of construction costs.
In any event, three (3) years after the completion of a project,
subscribers who have paid a share of line extension costs are no
longer eligible for refunds, and the amounts paid in construction
costs will be credited to the plant account of Grantee.
3)Where the density of residential dwelling and occupied
commercial or industrial structures, adverse terrain, or other
factors render extension of the System and offering of cable
service impractical, technically infeasible or would create an
economic hardship, the Grantor may, upon petition of the
Grantee, either waive the extension of the System into such
areas, or allow the extension and offer of service on special terms
or conditions which are reasonable and fair to the Grantor, the
Grantee and potential subscribers in such areas.
4)It shall be the responsibility of the Grantee to maintain records
documenting any special terms or conditions for extending cable,
and any refund arrangements. Such documentation shall be
made available to the Grantor upon request.
4.4.CCommercial Rates
Notwithstanding Section 4.4.A, Grantee may establish different and
nondiscriminatory rates and charges and classes of cable services for
Commercial Subscribers, as well as different, nondiscriminatory monthly
rates for classes of Commercial Subscribers. For the purposes of Section
4.4.C, "Commercial Subscribers" means any Subscribers other than
Residential Subscribers in single family or multifamily dwellings.
4.4.DNewly Annexed Areas
As areas are annexed to the City, Grantee shall provide Service Availability
to all residences within the annexed area on the same terms as provided for
in Section 4.4.A-C unless otherwise authorized by the City.
4.4.ENew Subdivisions
In new subdivisions, service will be made available under the terms of 4.4.A
to 4.4.C above either (i) contemporaneously with other utility services; or (ii)
no more than 60 days from first occupancy, whichever is first.
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4.4.FAreas Already Served
Notwithstanding any other provision in this Franchise, Grantee shall not be
required to extend its Cable System lines to any area of the City that already
receives Cable Service from a provider that is not commonly owned to any
degree with Grantee, unless the density meets or exceeds 60 residential units
per proposed cable-bearing strand mile
4.5Erection of Poles
Grantee shall not erect, for any reason, any pole on or along any street or public way
in an existing aerial utility system unless approved by the Grantor. The Grantee
shall make all reasonable efforts to lease pole space from the existing pole owners
for all aerial construction, under mutually acceptable terms and conditions.
4.6Trimming of Trees or Other Vegetation
In the conduct of its business, it may be necessary for Grantee to trim trees or other
vegetation in order to provide space for its facilities. Tree or vegetation trimming in
the right of way, on other public property and dedicated easements shall be done
only in accordance with the ordinances and other rules and regulations of Grantor.
Nothing contained in this Franchise agreement shall be deemed to empower or
authorize Grantee to cut, trim or otherwise disturb any trees or other vegetation,
whether ornamental or otherwise on private property. In cases of emergency,
Grantee may trim trees or other vegetation with notification to the Grantor at the
earliest feasible time.
4.7Repair and Restoration of Streets, Public Ways and
Grounds
Whenever the Grantee shall disturb the surface or otherwise damage any street,
alley, public highway, other public way or ground for any purpose mentioned herein,
it shall repair and restore the same to at least the condition in which it was prior to
the opening or other damage thereof. And when any opening is made by the Grantee
in any hard surface pavement, in any street, alley, public highway or other way, the
Grantee shall promptly refill the opening and restore the pavement to at least its
original condition. The Grantor shall notify Grantee if any Opening made by
Grantee requires further restoration and, after an eight-hour period for Grantee to
affect repairs, Grantor may refill and/or pave. The cost thereof, including the cost of
inspection, supervision and administration shall be paid by the Grantee. All
excavations made by the Grantee in the streets, alleys, public highways or other
ways shall be properly safeguarded for the prevention of accidents. The work hereby
required shall be done in compliance with the rules, regulations and ordinances of
Grantor as now or hereafter in effect. Unless otherwise provided for in a written
contract with a private property owner, Grantee shall repair and restore any private
property it disturbs in the same manner required by this Franchise with respect to
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City of Woodburn Cable Franchise
public property. The requirement under this Section for the City to notify the
Grantee and to allow a minimum period for the Grantee to make repairs is effective
except in the case of emergency.
4.8Construction Codes
The Grantee shall strictly adhere to all applicable building, zoning or other
construction laws and codes currently or hereafter in force in Grantor's jurisdiction.
This provision, however, does not diminish or impair Grantee’s rights under law to
rely on this Franchise. The Grantee shall arrange its lines, cables and other
appurtenances, on both public and private property, in such a manner as to cause no
unreasonable interference, as determined by the Grantor in reliance on generally
accepted practices, with the use of said public or private property by any person. In
the event of such interference, Grantor may require the removal of Grantee's lines,
cables and appurtenances from the property in question
4.9Reservations of Street Rights
Nothing in this Franchise agreement shall be construed to prevent any public work
of the Grantor, including without limitation constructing sewers, grading, paving,
repairing and/or altering any street, alley, or public highway, or laying down,
repairing or removing sewer or water mains or maintaining, repairing, constructing
or establishing any other public property. If any property of the Grantee shall
interfere with the construction or repair of any street or public improvement,
whether it be construction, repair or removal of a sewer or water main, the
improvement of a street or any other public improvement, then on reasonable notice
from the Grantor all such property including poles, wires, conduits or other
appliances and facilities shall be protected, removed, replaced or relocated in a
timely manner as shall be directed by the Grantor, so that the same shall not
interfere with the said public work of the Grantor, and such removal, replacement or
relocation shall be at the expense of the Grantee. In all such instances of relocation
of Grantee’s property, however, Grantor shall not treat Grantee any less favorably
than it treats other providers of Cable Services. In the event of failure, neglect or
refusal of the Grantee, to repair, restore, or reconstruct such street, the Grantor may
do such work or cause it to be done, and the cost thereof to the Grantor shall be paid
by the Grantee. Except in the case of emergencies, reasonable notice shall mean
sixty (60) days at a minimum.
4.10Street Vacation and Abandonment
In the event any street, alley, public highway or portion thereof used by the Grantee
shall be vacated by the Grantor, or the use thereof discontinued by the Grantee,
during the term of this Franchise, the Grantee shall forthwith remove its facilities
therefrom unless specifically permitted in writing to continue the same by the new
controlling jurisdiction or property owner, as appropriate. At the time of removal
thereof the Grantee shall restore, repair or reconstruct the street area where such
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removal has occurred, and place the street area where such removal has occurred in
such condition as may be reasonably required by Grantor. In all such instances of
requiring restoration, repair or reconstruction, however, Grantor shall not treat
Grantee any less favorably than it treats other providers of Cable Services. In the
event of failure, neglect or refusal of the Grantee, to repair, restore, or reconstruct
such street, the Grantor may do such work or cause it to be done, and the cost
thereof to the Grantor shall be paid by the Grantee.
4.11Movement of Facilities
In the event it is necessary temporarily to move or remove any of the Grantee's
conduit, wires, cables, poles or other facilities placed pursuant to this Franchise, in
order to lawfully move a large object, vehicle, building or other structure over the
streets, alleys or highways of the Grantor, Grantee, upon reasonable notice, shall
move at the expense, paid in advance, of the person requesting the temporary
removal such of its facilities as may be required to facilitate such movements;
provided that, if the Grantor is the party requesting the removal, for movement of
buildings or structures of the Grantor, then the removal shall be done at the expense
of the Grantee.
4.12Undergrounding
4.12.AUnderground Requirement
Cable must be installed underground where (1) all existing utilities are
located underground, (2) all utilities are required to place their facilities
underground by statute, or ordinance, policy or other regulation of Grantor,
(3) all overhead utility lines along the same route as the Grantee’s lines are
replaced with underground (Grantee shall bear the cost of such movement of
its facilities unless specific exemption is given by Grantor in any individual
case), (4) Grantee is unable to get pole clearance, (5) underground easements
are obtained from developers of new residential areas, or (6) utilities are
overhead but residents prefer underground (service to be provided at cost to
resident).
4.12.BUse of Conduit
Grantee shall use conduit or its functional equivalent on 100% of
undergrounding, except for drops from pedestals to subscribers' homes and
for cable on other private property where the owner requests that conduit not
be used. Cable and conduit shall be utilized which meets the highest
industry standards for electronic performance and resistance to interference
or damage from environmental factors. Grantee shall use, in conjunction
with other utility companies or providers, common trenches for underground
construction wherever available.
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4.13Location Maps
Grantee shall maintain drawings of the System route, showing at minimum the
strand and trench portions along the System’s route, power supply locations, and
node locations, and shall make them available to the Grantor for inspection upon
request. Such drawings shall be updated as changes occur in the System. The
Grantee shall provide to the Grantor, within ten (10) days of Grantor’s request, a
copy of the drawings in electronic form compatible with the Grantor’s GIS system if
the Grantee has them in such form
4.14Emergency
In the event of an emergency, or when the Cable System creates or is contributing to
an imminent danger to health, safety or property, the Grantor may remove or
relocate Grantee's Cable System without prior notice. Whenever possible, the City
shall make a reasonable attempt to notify the Grantee prior to such removal or
relocation.
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5.SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS
5.1System
Configuration
Grantee’s Cable System shall be no less than 750 MHz throughout the Franchise Area
with a capacity of at least 200 activated analog and/or digital channels. The Systemshall
have the forward and return capacity to provide pay-per-view, video-on-demand and other
services requiring addressability. In all its construction and service provision activities,
Grantee shall meet or exceed the construction, technical performance, extension and
service requirements set forth in this Franchise Agreement.
5.2Emergency Alert Capability
Grantee shall provide the system capability to provide video interrupt and audio
alert on all System channels for emergency purposes, and allow the Grantor to
transmit an emergency alert message from locations designated by the Grantor to
all subscribers. This capability shall be consistent with the requirements of Part 11
of the regulations of the FCC.
5.3Standby Power
Grantee shall provide standby power generating capacity at the Cable System
headend and hubs capable of providing emergency operation for at least forty-eight
(48) hours, and shall maintain standby power system supplies, rated at least at two
(2) hours duration, throughout the trunk and distribution networks
5.4Parental Control Lock
Grantee shall provide subscribers (by sale or lease or otherwise), upon request, with
a manual or electronic parental control locking device that permits inhibiting the
viewing of any channel, consistent with 47 U.S.C. § 544(d)(2) Any charge for such
device shall be consistent with applicable rate regulations. Subscribers shall be
notified by Grantee of the availability of the locking device no less frequently than
annually.
5.5Technical Standards
The Grantee shall meet the requirements of the Federal Communications
Commission (FCC) Rules and Regulations, Part 76, Subpart K (Technical
Standards), as now or hereafter constituted.
5.6Performance Testing
5.6.ASchedules
Upon request, Grantee shall advise Grantor of schedules and methods for
testing the Cable System to determine compliance with the provisions of
applicable FCC technical standards. Representatives of Grantor may witness
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tests, and copies of written test reports shall be made available to Grantor
upon request.
5.6.BReporting
As required by FCC Rules, Grantee shall conduct proof of performance tests
and cumulative leakage index tests designed to demonstrate compliance with
FCC requirements. Grantee shall provide Grantor a written copy of the
results of such tests upon request.
5.6.CInspection
The Grantor shall have the right to inspect any and all work performed in the
streets and rights-of-way. In addition, for initial and semi-annual FCC proof-
of-performance tests, the Grantor shall be given the opportunity by Grantee
to review test sites. Upon Grantor’s request Grantee shall notify the Grantor
of the time and place of the next scheduled test and shall cooperate in
facilitating the Grantor’s witnessing at the time of the tests. The Grantor
may, at its own expense and upon thirty (30) days written notice to Grantee,
conduct independent tests of the System, for which Grantee shall give its
fullest cooperation.
5.6.DFCC Compliance
It shall be the responsibility of the Grantee to document that the System and
its operation are in compliance with FCC technical specifications and
performance requirements. If the Grantor has received Subscriber
complaints regarding the performance of the Cable System; and the Grantor
determines that the most efficient or only reasonable way to determine a
question of System compliance with FCC technical specifications is through
specific electronic testing of the System in addition to tests required by the
FCC; the Grantee shall, upon written notice by the Grantor, perform such
testing at a reasonable time, give the Grantor an opportunity to witness the
testing, and provide the Grantor with documentation of the testing results.
The FCC’s technical standards shall govern the protocols for all such testing.
5.6.ERemedy for Non-Compliance
In any case where System testing reveals non-compliance with FCC
standards, the Grantee shall repair the System or make whatever
modifications are necessary to bring the System performance into compliance
with FCC standards.
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6.SERVICES AND PROGRAMMING
6.1Programming Categories and Number of Services
The Grantee shall provide video programming services in at least the following
broad categories, to the extent such categories are reasonably available:
1.News & Information
2.Sports
3.General Entertainment, movies, music & comedy
4.Arts, Culture, Performing Arts
5.Children / Family
6.Science / Documentary
7.Weather Information
8.Governmental and Educational Programming
9.Foreign language / Ethnic Programming
The Grantor acknowledges that identification of these broad categories of
programming in no way infers regulatory authority by the Grantor over specific
programming services or networks which may be carried on the Cable System.
6.2Changes in Video Programming Services
Subject to the provisions of the Cable Act, no category of services as referred to in
Section 6.1 may be deleted, or so limited as effectively to be deleted by the Grantee
without Grantor approval, which shall not be unreasonably withheld. In the event
any applicable law or regulation materially alters the terms and conditions under
which Grantee carries programming within the broad programming categories
described in Section 6.1, then the Grantee shall be obligated to carry such
programming only upon reasonable terms and conditions.
6.3Leased Channel Service
The Grantee shall offer leased channel service to the extent required by 47 U.S.C.
Section 532 (Section 612 of the Cable Act), or regulations adopted thereunder.
6.4Community Access and Local Programming
6.4.AManagement and Control of Access Channels
The Grantor may authorize Designated Access Providers to control and
manage the use of any or all Access Facilities provided by Grantee under this
Franchise, including, without limitation, the operation of Access Channels for
noncommercial, non-profit PEG Access purposes. The Grantor or its designee
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may formulate rules for the operation of the Public Access Channel,
consistent with this Franchise. Nothing herein shall prohibit the Grantor
from authorizing itself to be a Designated Access Provider.
6.4.BChannel Capacity and Use
1)Channels used for PEG Access purposes shall be administered by
the Grantor or its designee.
2)Downstream Channels
a)During the Franchise term, Grantee shall provide a
minimum of two Access Channels in analog or digital
format for PEG use. Each Access Channel if analog shall be
a minimum of 6Mhz, subject to (B)(5) & (B)(3) below, and be
capable of carrying a video signal. Although nothing in this
Franchise restricts the use of PEG channels to video
applications, any other use shall be subject to the technical
limitations of the Grantee's System and the requirements of
this Franchise.
b)After the initial two Access Channels have been made
available for PEG use, and in accordance with the trigger
criteria set forth in Section 6.4.A (3) below, the Grantor
may require the Grantee to activate one (1) additional
Access Channel for a maximum of four Access Channels.
c)Grantee may use unused PEG Channels for its own
purposes until such time as the Grantor, upon 60 days prior
written notice, requests them for PEG use by the Grantor
or a Designated Access Provider.
3)Triggers for Additional Access Channels
After the initial two Access Channels have been made available for
PEG Access use, Grantee shall, if directed by the Grantor, provide
additional activated Access Channels for PEG use to a maximum total
of four Access Channels as required in this subsection. The Grantor
shall give Grantee at least 90 days prior written notice of required
additional Access Channels. Such written notice shall include
information verifying that the trigger criteria have been met.
One (1) additional Access Channel shall be made available to the
Grantor each time that the existing Access Channels are in use for
locally scheduled video programming (not to include character-
generated programming, non-video transmissions, or repetitions of
programs beyond three (3) repetitions) an average of 80% of the time,
seven days per week for any consecutive five hour block during the
hours from 10:00 a.m. to 10:00 p.m. for 10 consecutive weeks.
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Provided, however, that if the usage ratio of any additionally
designated channel should at any time fall below 30% of the level of
usage required above for the addition of a channel, then the use of
that channel shall revert back to the Grantee. This mechanism for
exchanging control of channels based on usage shall be continuous
throughout the term of the Franchise.
4)Grantee shall make available the PEG Channels to all
Subscribers. Grantee may deliver such PEG Channels in an
analog or digital format, at Grantee’s sole and absolute
discretion. At such time Grantee delivers the PEG Channels to
Subscribers in a digital format, Grantee agrees to provide, at no
charge to Subscribers, Digital to Analog Converter Boxes or other
equivalent equipment for the primary television of each
Subscriber who requests such equipment. The Access Channels
must be receivable by Subscribers without special expense, other
than the expense required to receive Basic Service. Designated
Access Providers have no obligation to provide a signal to Grantee
in a digital format.
5)Grantor may, at its sole cost and expense, deliver the PEG
Channels to Grantee in video-on-demand (VOD) format. Grantor
is responsible for all costs and expenses to encode and deliver
such VOD programming. If Grantor delivers VOD programming
to Grantee, Grantee will have the right, but not the obligation, to
deliver the VOD programming to Subscribers receiving the PEG
Channels.
6)If Grantee modifies its Cable System in a manner that has the
effect of requiring modifications to PEG facilities and equipment,
in order to deliver PEG signals, Grantee will bear any cost that
the Designated Access Providers must incur as a result. If, for
example, Grantee requires high definition signals, Grantee will
bear the costs Designated Access Providers incur to provide high
definition signals.
7)The Grantee will provide all PEG Channels on the Basic Service
tier throughout the life of the Franchise, consistent with the
requirements of federal law. If there is no Basic Service tier,
Grantee shall provide the PEG Channels at no additional charge
to any Person who subscribes to any level of cable video
programming service and otherwise in accordance with federal
and state law. If channels are selected through a menu system,
the PEG Channels shall be displayed in the same manner as
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City of Woodburn Cable Franchise
other channels. Designated Access Providers shall be responsible
for the costs associated with specific program listings for the PEG
Channels on Cable System program guides and menus.
8)Upstream Channels
a)All return lines for upstream PEG Access transmissions which
are in place as of the effective date of this Franchise shall be
maintained in working order throughout the term of the
Franchise. Throughout the term of this Franchise, Grantee
shall provide and maintain communications return lines, as
well as all necessary wires and electronic and optical interface
and transmission equipment, sufficient so that the Grantor or
its designee can transmit full motion video signals as described
in this Section from the Master Control Site and other
Origination Points identified in Exhibit A onto the Cable
System, to enable the distribution of programming on Access
Channels. Grantor and/or qualified access users shall provide
all other routers and equipment necessary to produce and
manage the control of programming from the Master control
site and other Origination Points identified on Exhibit A. For
all Origination Points, Grantee shall provide the capacity to
transmit at least one (1) full motion analog video signal
upstream; except that, for the WCAT Master Control Site,
Grantee shall provide the capacity for the upstream
transmission of at least as many full motion video signals as
are necessary for simultaneously transmitting programming
for all access cable channels active from that location to the
headend serving the area for distribution.
The requirements of this Section relating to connections to and
from the Grantee’s facilities shall apply wherever Grantee’s
facilities are located or relocated.
b)As an alternative to providing some or all of the hard-wired
Origination Points identified in (a) above, the Grantee, upon
approval of the Grantor, may provide a microwave transmit
and receive system which would allow upstream programming
to the WCAT Master Control Site from remote locations.
6.4.CFinancial Support for PEG Access
1)The Grantee shall provide the following financial support for PEG
Access:
a.Forty Thousand Dollars ($40,000) for equipment purchase
and replacement. Grantee shall cooperate with and assist
Grantor in obtaining such equipment, including but not
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limited to facilitating Grantor’s purchase of such
equipment. Grantee shall be pay Grantor as follows:
i.Twenty Thousand Dollars ($20,000) shall be paid
within thirty (30) days following January 1, 2014.
ii.Two Thousand Dollars ($2,000) shall be paid within
thirty (30) days following January 1 of each
subsequent year this Franchise is in effect until the
remaining $20,000 has been paid in full by Grantee.
b.One Dollar Twenty–Five Cents ($1.25) per Subscriber per
year, payable in October of each year of the Franchise term
or its extension, for ongoing equipment needs.
c.One Thousand Five Hundred Dollars ($1,500) per month
pursuant to an agreement between the Grantee and
Woodburn Cable Access Television (“WCAT”), an Oregon
nonprofit corporation, to allow the Grantee to provide
sponsorship announcements as provided herein. In
consideration of such monthly payment, WCAT shall permit
Grantee to place short and long-form sponsorship
announcements on the PEG Channels in regular intervals.
Grantor shall not regulate the content of these sponsorship
announcements but the announcements shall be approved
by WCAT and shall conform to the underwriting and donor
acknowledgement rules adopted by the Federal
Communications Commission at 7 FCC Record 827. In
periodically acknowledge Grantee
addition, Grantor shall
as a sponsor of WCAT in Grantor’s Out and About
newsletter sent to residents of the City.
2)The Grantor may use a portion of PEG Access support for the
costs of the Institutional Network.
3)Should Grantee continue to provide Cable Service after the
scheduled expiration of the Franchise, pursuant to a Resolution
passed by the Grantor allowing Grantee to continue to operate
under the this Franchise, until and unless this Franchise is
superseded by a renewed Franchise issued by the Grantor,
Grantee shall continue to provide support of PEG Access as
specified herein above.
6.4.DStudio
Grantee shall continue to provide the studio space and facilities for PEG
Access it provides as of the effective date of this Franchise.
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6.4.EPEG Support Not Franchise Fees
Grantee agrees that support for PEG Access agreed to in this Franchise is not
Franchise Fees, nor shall it be treated as payment in lieu of Franchise Fees,
and that it falls under one or more of the exceptions to the definition of
Franchise fee under federal law. Nothing in this Section is intended to affect
in any way (by expansion or contraction) Grantor’s rights under applicable
law governing rates.
6.4.FTechnical Quality
Grantee shall maintain all Upstream and Downstream PEG Channels and
Interconnections of PEG channels at the same level of technical quality and
reliability as the commercial Channels carried by Grantee. There shall be no
significant deterioration in signal due to Grantee’s signal carriage from the
point of origination Upstream to the point of reception Downstream.
6.4.GChange in Technology
1)In the event Grantee makes any change in the Cable System and
related equipment and facilities or in Grantee’s signal delivery
technology, which directly or indirectly substantially affects the
signal quality or transmission of Access services or programming,
Grantee shall, at its own expense, take necessary technical steps
or provide necessary technical assistance, including the
acquisition of all necessary equipment, and full training of
Designated Access Providers’ Access personnel to ensure that the
capabilities of Access services are not diminished or adversely
affected by such change.
2)In accordance with Section 6.4.B (5) the Grantee is required to
provide connections as described herein to its headend wherever
the headend may be located or relocated. Without limiting the
foregoing, in the event Grantee alters its Cable System (including
by relocating its headend), Grantee will be responsible for
replacing or restoring all connections at Grantee’s cost so that all
the functions and capacity remain available, operate reliably and
satisfy all applicable technical standards without additional cost
to the Grantor or Designated Access Providers. To the extent that
additional costs are incurred by the Grantor as the result of such
alteration, Grantee will reimburse the Grantor.
6.4.HNon-Commercial Use
The PEG Access Channels shall be used only for non-commercial purposes;
however, this requirement does not prohibit the use of program sponsorship
similar to that used in public broadcast television, consistent with federal
law.
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6.4.IInterconnection of PEG Access
1)Communities Served by Grantor
Grantor may request at any time an interconnection for the
transport of Access programming to or from communities
provided service by Grantor’s headend for Woodburn or an
interconnected headend. If technically and legally possible,
within 6 months following a request from the Grantor, Grantee
will perform such interconnect or provide method of
transportation of the access channels, provided Grantor pays all
Incremental Costs therefor. Incremental Cost shall be
determined in accordance with Exhibit C. Interconnection with
Other Systems
a)Grantor may request at any time an interconnection for the
transport of access programming to or from adjacent
communities served by cable operators other than the
Grantee. If technically and legally possible, within 6
months following a request from the Grantor, Grantee will
perform such transport or provide method of transport of
the access programming, provided Grantor pays all
Incremental Costs therefor. For the purposes of this
Section, Incremental Cost shall be determined in
accordance with Exhibit C.
b)With respect to installing the capacity required under this
Section 6.4.J (2), the Grantor understands that
interconnection requires cooperation from other cable
system operators as to engineering, design, and technical
operation issues. In addition, Grantee's interconnection
obligation shall be limited to providing equipment needed,
and performing construction work required, within
Grantee's Franchise areas in order to enable the required
interconnections to occur. In order to actually establish the
interconnections, it may be necessary for the operators of
other cable systems interconnecting with the Grantee's
System to provide equipment and perform construction
work within their respective Franchise areas; and the
provision of such equipment and performance of such
construction work shall not be the obligation of Grantee
under this Franchise. Therefore Grantor shall make every
reasonable effort to assist Grantee in achieving the
cooperation of interconnecting cable system regulators and
operators necessary to establish the interconnections, and
Grantee's interconnection obligations hereunder shall be
subject to such cooperation being obtained.
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3)Signal Quality
All PEG Access interconnections shall be accomplished in a
manner that permits the transmission of signals meeting the
technical standards of this Franchise on all interconnected
channels; provided that the Grantee shall not be responsible for
the quality of signals provided by programmers or the
interconnected systems of other operators.
6.5Institutional Network
6.5.AObligation to Construct
Grantor acknowledges that the Grantee has provided System plant, capacity
and services according to a design and functionality previously specified by
the Grantor and used for an Institutional Network (I-Net). At the Grantor’s
discretion, the I-Net may be used for non-commercial, non-profit applications,
subject to Section 6.5.F below, by the Grantor and its agencies, other
governments and their agencies, Schools, libraries, public corporations
created by the Grantor, and other non-profit institutions to the extent that
such non-profit institutions provide public services.
6.5.BI-Net Design, Functionality and Management
Grantee has to installed: 1) fiber for I-Net use to each existing I-Net site; and
2) such electronics, labor and services necessary to make the Grantor’s I-Net
functional. The Grantor or its designee shall have the right to control and
manage the use of the I-Net provided for herein. The Grantee shall, if
requested by the Grantor, maintain the I-Net it provides up to the
demarcation point as defined below, according to the terms of a maintenance
agreement between the parties. The Grantor will be responsible for the
Incremental Costs associated with maintenance of the I-Net that Grantee is
required to perform. The demarcation point for purposes of this Section
shall be the patch panel, termination block, or other termination device
located at each I-Net site, at the point closest to the Grantee’s facilities where
the device transmits signals to and from the I-Net provided by Grantee.
6.5.CInterconnection of I-Net
1)In the event that Grantee constructs an interconnect between
Grantee’s headends or between systems served by the headend
serving Woodburn, and upon Grantor’s request, Grantee will
provide up to 2 fiber pairs provided the Grantor pays for all
Incremental Costs therefor. Incremental Cost shall be
determined in accordance with Exhibit C.
2)In the event the Grantor requests Grantee to interconnect the I-
Net with any communications system inside or at the borders of
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the franchise area, Grantee shall, if legally and technically
possible, perform this construction as requested, 6 months
following Grantor’s request whichever is later, provided Grantor
pays for all Incremental Costs therefor. Incremental Cost shall be
determined in accordance with Exhibit C.
3)The Grantor shall be permitted to interconnect the I-Net, directly
or indirectly, with any other communications network for PEG or
I-Net purposes.
4)If the design of the I-Net involves the use of the Granteer’s
headend, then The Grantee shall provide sufficient floor space in
its facilities to accommodate such equipment as may be necessary
there to operate or monitor the I-Net; and shall permit the
Grantor reasonable access to its facilities as may be necessary to
install, replace, repair or maintain such equipment. However,
Grantee shall not be required to operate, make available, or
maintain such facilities, unless such facilities are a necessary part
of Grantee's own Cable System operation. Notwithstanding the
foregoing, Grantee shall remain the custodian of such space and
Grantor shall obtain Grantee’s prior consent before accessing the
facilities and shall be accompanied by Grantee’s representative
when accessing the facilities if Grantee reasonably requires such
escort.
6.5.DLimits on Use
1)The I-Net may only be used for any (a) municipal purpose
(proprietary or governmental); (b) educational purpose; (c) public
purpose, or for use of the PEG Channels on the Subscriber
Network. It is understood that the connections to City, county or
other governmental institutions and transmissions to and among
these institutions fall within the terms above. Fees may be
charged by the Grantor to Persons other than Grantee for use of
the I-Net or for the information transmitted via the I-Net. The I-
Net may be linked to any other communications network used by
the Grantor or to any I-Net user authorized by the Grantor,
provided such user is either a public agency or such use is for non-
commercial, non-profit purposes. The I-Net may also be linked to
the Internet; however, an I-Net user, the Grantor (or an entity
under the Grantor’s control) may not use the I-Net provided by
Grantee to act as the Internet Service Provider for the general
public or any commercial establishments.
2)Appropriate uses of the I-Net include, by way of example and not
limitation:
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a)Transmitting GIS and other data to and from Grantor
departments and to and from the public;
b)Linking libraries and providing terminals at library
locations that allow members of the public to access library
databases and other remote databases;
c)Transmitting live and stored instructional materials
(whether in the form of data, video, or otherwise) to and
from schools and to the public;
d)Providing kiosks where members of the public may access
information;
e)Providing video conferencing among municipal and
educational locations and to other locations for municipal
and educational purposes such as economic development
and distance learning;
f)Providing for remote permitting, remote arraignment, and
voice traffic to and from the Grantor and the Schools.
3)The Grantor may designate an entity to control and manage the
use of the I-Net provided by Grantee. The Grantor may not lease,
to a third party, any portion of the network that Grantee installs
or leases to the Grantor without the prior written permission of
the Grantee; provided that the Grantee shall not unreasonably
deny such permission, and shall limit denial to those cases where
the lease may reasonably be construed as facilitating the
provision of a service in competition with the Grantee. Moreover,
where the purpose of any use is commercial and for profit, such
use shall not be allowed without the written permission of
Grantee.
The I-Net is a private communications network governed by this
4)
Franchise and the Cable Act. The City and Institutional
Subscribers will use the I-Net solely for non-commercial
applications. The Institutional Subscribers will not attach any
equipment or otherwise use the I-Net in any way that will
interfere with the signal quality and the normal operation of
Grantee’s quality and the normal operation of Grantee’s Cable
System in conformity with this Franchise or FCC regulations,
including but not limited to regulations pertaining to signal
leakage. The City and Institutional Subscribers will not resell
access to the I-Net.
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City of Woodburn Cable Franchise
6.5.ENo Charge for I-Net Use
The parties agree that there shall be no charge for the I-Net provided by
Grantee other than the Incremental Costs and possible maintenance charges
as described in this Section.
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City of Woodburn Cable Franchise
7.FRANCHISE REGULATION AND CUSTOMER SERVICE
STANDARDS
7.1Intent
It is the intent of the Grantor to administer and enforce the provisions of this
Franchise. Grantor may delegate all or a part of its administrative and regulatory
authority under this Franchise to an entity designated by the Grantor.
7.2Areas of Regulation and Administration
The Grantor (or its designee) has authority for regulation in the following
areas: 1) administering and enforcing the provisions of this Franchise
agreement, including the adoption of administrative rules and regulations to
carry out this responsibility; 2) coordination of the operation of Public,
Government and Educational Access channels. 3) coordinating the Grantee's
technical, programming and operational assistance and support to public
agency users, such as Grantor departments, schools and health care
institutions; 4) formulating and recommending long-range cable
communications policy for the Franchise area; 5) disbursing and utilizing
Franchise revenues paid to the Grantor; 6) regulating rates, to the extent
permitted by law. 7) customer service, to the extent permitted by law; and 8)
planning and facilitating development of public uses of the Cable System on
the residential and institutional networks, both within the Grantor and
through interconnection with adjacent systems. Nothing in this Section is
intended to expand Grantee’s authority beyond the scope authorized by state
and federal law
7.3Rate Regulation
7.3.ARate Regulation Right Reserved
Grantor reserves the right to regulate Grantee's rates and charges to the full
extent authorized by applicable federal, state and local law, as these may
change during the period of the Franchise; and to establish rate regulation
policies and guidelines for carrying out its authority.
7.3.BRate Discrimination Prohibited
Grantee shall apply non-discriminatory rates and charges to all subscribers
purchasing similar services, regardless of race, color, creed, sex, marital or
economic status, age, national origin, sexual preference, or neighborhood of
residence, except as otherwise provided herein; provided that nothing in this
Franchise shall prevent the Grantee from establishing discounted rates and
charges for low-income or elderly subscribers, or from temporarily reducing
or waiving rates and charges in connection with promotional campaigns.
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City of Woodburn Cable Franchise
7.3.CProvisions Subject to the Cable Act
The provisions of this Section 7.3 shall be subject to the provisions of 47
U.S.C. Section 543 (Section 623 of the Cable Communications Policy Act of
1984), as amended from time to time. It is not intended that this Section
expand or diminish the rights of the Grantor in relation to regulation of rates
and charges under those provisions of the Act, and any provision of this
Section or of any other provision of this Franchise that purports to expand or
diminish such rights shall be deemed superseded by those provisions of the
Act.
7.4Remedies for Franchise Violations
7.4.ANotification
If the Grantor believes that the Grantee has failed to perform any obligation
under this Franchise or has failed to perform in a timely manner, and Grantor
wishes to impose liquidated damages or seek revocation under this Section 7,
Grantor shall notify Grantee in writing, stating with reasonable specificity the
nature of the alleged violation. Grantee shall have a Cure Period following
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
Section 7.4.D below; or
2)Cure the violation; or
3)Notify the Grantor that Grantee cannot cure the violation within
the Cure Period because of the nature of the violation, and notify
the Grantor in writing of what steps the Grantee shall take to
cure the violation including the Grantee’s projected completion
date for such cure. In such case, the Grantor shall, within thirty
(30) days of receipt of such response, either a) accept the
Grantee’s plan and schedule for curing the violation, or b) set a
hearing in accordance with 7.4.B below.
The Cure Period, for purposes of Section 7, shall be thirty (30) days, unless
Grantor specifies a longer cure period, and except that in cases of emergency, or
repeat violations within any 3-month period, the Grantor may set a reasonable
shorter Cure Period.
If a Grantee fails to demonstrate to the reasonable satisfaction of Grantor
that no violation exists, or if Grantee fails to correct the violation within the
time prescribed, or if a Grantee is unable to correct the violation and fails to
commence corrective action within the time prescribed and to diligently
remedy such violation thereafter, the Grantee shall then be given written
notice of not less than thirty (30) days of a public hearing to be held before
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City of Woodburn Cable Franchise
the City Council, pursuant to Section 7.4.E. of this Franchise. Said notice
shall indicate with reasonable specificity the violation alleged to have
occurred. This procedure shall apply to all alleged Franchise violations,
including those in which grounds for revocation are considered.
7.4.BPlan for Cure
In the event that the Grantee notifies the Grantor that it cannot cure the
violation within the Cure Period, and proposes a plan and schedule for cure
which is not accepted by the Grantor, Grantor may, within thirty (30) days of
Grantee's receipt of such notice, set a hearing before the City Council. At the
hearing, Grantee shall review and determine whether the Grantor has taken
reasonable steps to cure the violation and whether the Grantor's proposed plan
and completion date for cure are reasonable. In the event such plan and
completion date are determined by mutual consent to be reasonable, the same
may be approved by the Grantor, who may waive all or part of the liquidated
damages for such extended cure period in accordance with the criteria set forth
in Section 7.4.F.
7.4.CImposition of Liquidated Damages
In the event that the Grantee fails to cure the violation within the Cure
Period, or within an extended cure period approved by the Grantor pursuant
to Section 7.4.B the Grantor may impose liquidated damages or revoke this
Franchise in accordance with this Section 7, but may do so only in accordance
with the requirements of this Section, only after it holds a hearing before the
City Council to determine what liquidated damages, if any, or revocation,
shall be applied. Any such liquidated damages shall not begin to accrue until
after the Cure Period has expired.
7.4.DContest of Violation
In the event that the Grantee contests the Grantor's assertion that a violation
has occurred, and requests a hearing in accordance with Section 7.4.A (1)
above, the Grantor shall set a hearing within sixty (60) days of the Grantor's
receipt of the hearing request to determine whether the violation has occurred,
and if a violation is found to have occurred, what remedies under this Section 7
shall be applied.
7.4.EOpportunity to Be Heard
In the case of any hearing pursuant to this Section 7.4 Grantor shall notify
Grantee of the hearing in writing at least 30 days prior to the hearing date. At
the hearing, Grantee shall be provided an opportunity to be heard, examine
Grantor’s witnesses, and to present evidence in its defense. The Grantor may
also hear any other Person interested in the subject, and may provide
additional hearing procedures as Grantor deems appropriate. After the hearing
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City of Woodburn Cable Franchise
is closed, Grantor shall issue written findings and a decision based on the
evidence presented. In the event Grantor determines that a breach has
occurred, Grantor may appeal the decision of the City Council to a court of
competent jurisdiction for a judicial review.
7.4.FReduction of Liquidated Damages
The liquidated damages set forth in Section 7.2 of this Franchise may be
reduced at the discretion of the Grantor, taking into consideration the nature,
circumstances, extent and gravity of the violation as reflected by one or more of
the following factors:
1)Whether the violation was unintentional;
2)Whether substantial harm resulted;
3)Whether there is a history of prior violations of the same or other
requirements;
4)Whether there is a history of overall compliance, and/or;
5)Whether the violation was voluntarily disclosed, admitted or
cured.
7.4.GNature of Remedies
If, after the hearing, Grantor determines that a violation exists, Grantor may
use one or more of the following remedies:
1)Order Grantor to correct or remedy the violation within a
reasonable time frame as Grantor shall determine;
2)Establish the amount of liquidated damages set forth in Section
7.5, taking into consideration the criteria provided for in Section
7.4.F as appropriate in Grantor's discretion;
3)Revoke this Franchise, subject to Sections 7.4 and 11.1 of this
Franchise and/or;
4)Pursue any other legal or equitable remedy available under this
Franchise or any applicable law
7.5LIQUIDATED DAMAGES
7.5.AAmounts:
Because Grantee’s failure to comply with provisions of the Franchise will result
in injury to the Grantor, and because it will be difficult to estimate the extent of
such injury in certain instances, the Grantee and Grantor agree to the following
liquidated damages for the following violations. Violation of the Franchise in
these instances will damage the Grantor, the amount of such damage will be
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City of Woodburn Cable Franchise
impracticable to determine, and the specified amounts are the parties’ best
estimate of the damages resulting from each injury.
1)For failure to extend Cable Service within the Franchise Area as
required: by this Franchise, Twenty-Five Dollars ($25) per day,
per affected potential Subscriber, up to a maximum of $500 per
day.
2)For failure to provide any capability for Public, Education and
Government Access use of the Cable System required in this
Franchise: Five Hundred Dollars ($500) for each violation, per
day.
3)For violation of applicable customer service standards: Twenty-
Five Dollars ($25) per day, multiplied by the number of affected
Subscribers, up to a maximum of $500 per day.
4)For failure to submit any report, maps, documentation, or other
information required by this Franchise, Fifty Dollars ($50) per
day for each day past the due date for the first thirty (30) days,
and One Hundred Dollars ($100) per day thereafter.
5)For all other material violations of this Franchise, other than
those specified in this Section, for which actual damages may not
be ascertainable, up to One Hundred Dollars ($100) per day for
each provision of this Franchise that is violated.
7.5.BCollection of Liquidated Damages.
The collection of liquidated damages by the Grantor shall in no respect affect:
1)Compensation owed to Subscribers; or
2) The Grantor’s obligation to comply with all of the provisions of
this Franchise or applicable law; or
3)Other remedies available to Grantor.
7.5.CRecourse to Securities
In conformance with the procedural requirements herein, the Grantor shall
be entitled to draw upon the Grantor’s letter of credit, performance bond or
any security, including any parental guarantee, to collect the foregoing
damages.
7.5.D Liquidated Damages Maximum
Notwithstanding any provision herein to the contrary, the aggregate amount
of liquidated damages for which Grantee is liable shall not exceed fifty
thousand dollars ($50,000.00) during the term of this Franchise as set forth
in Section 3.3 herein.
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City of Woodburn Cable Franchise
7.6Remedies Not Exclusive
The Grantor has the right to apply any one or any combination of the remedies
provided for in this Franchise, including without limitation all remedies provided for
in this Section 7, and may without limitation pursue any rights, remedies or actions
that it may have in law or equity regardless of whether they are specifically
mentioned in this Franchise.
7.7Customer Service & Consumer Protection Standards
The following customer service and consumer protection standards shall apply.
Nothing in this Section shall limit the rights of the Grantor to establish additional or
different standards in accordance with federal law and regulations.
7.7.ACustomer Service and Telephone Responsiveness
1)The Grantee shall maintain an office within the Urban Growth
Boundary of Woodburn. The office must be staffed 40 hours per
week, and Grantee shall be able to respond to subscribers and the
public not less than 40 hours per week during normal business
hours, plus at least 8 weekend or evening hours.
2)During the 40 hours the office is open, customer service
representatives shall be available to respond in at least the
following ways: to accept payments; to exchange or accept
returned converters or other company equipment; and to respond
to inquiries.
3)Toll-free telephone lines, either staffed or with answering
capability, providing at least emergency referral information,
must be operational 24 hours a day, including weekends and
holidays.
7.7.BService and Repair Calls
1)Under normal operating conditions, at least 95% of the time
measured on a quarterly basis, requests from subscribers for
repair and maintenance service must be acknowledged by the
Grantee within 24 hours from the time of the request or prior to
the end of the next business day, whichever is earlier. Repair and
maintenance for service interruptions or other repairs not
requiring on-premises work must be completed within 24 hours
under normal circumstances. All other repairs should be
completed within 72 hours under normal circumstances.
2)Under normal operating conditions, at least 95% of the time
measured on a quarterly basis, as a normal operating procedure,
upon subscriber request for service calls, installations or other
installation activities, the Grantee shall offer either a specific
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City of Woodburn Cable Franchise
time or, at maximum, a four-hour time block during normal
business hours. (The operator may schedule service calls and
other installation activities outside of normal business hours for
the express convenience of the customer.)
The Grantee shall not cancel an appointment with a customer
after the close of business on the business day prior to the
scheduled appointment.
If a Grantee representative is running late for an appointment
with a customer and will not be able to keep the appointment as
scheduled, the customer will be contacted. The appointment will
be rescheduled, as necessary, at a time which is convenient for the
customer.
3)For mobility-limited customers, upon subscriber request the
Grantee shall arrange for pickup and/or replacement of converters
or other company equipment at the subscriber's address, or else a
satisfactory equivalent (such as the provision of a postage-prepaid
mailer).
4)Under normal operating conditions, at least 95% of the time
measured on a quarterly basis, where the service requested is
installation of service, standard installations shall be performed
by the Grantee within seven (7) business days after an order has
been placed. "Standard" installations, for the purposes of this
Section, shall mean those that are located up to 150 feet from the
existing distribution system.
7.7.CDisconnection
1)The Grantee may disconnect a subscriber if:
a)at least 30 days have elapsed without payment after the
due date for payment of the bill of the affected subscriber;
and
b)the Grantee has provided at least 10 days written notice to
the affected subscriber prior to disconnection, specifying the
effective date after which cable services are subject to
disconnection.
2)Regardless of subsection 7.7.C (1) hereof, the Grantee may
disconnect a subscriber for cause at any time if the Grantee in
good faith determines that the subscriber has tampered with or
abused company equipment, or is or may be engaged unlawfully
in theft of cable services, or is causing a system violation of FCC
rules or regulations.
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3)The Grantee shall promptly disconnect any subscriber who so
requests from the Grantee's Cable System. No period of notice
prior to voluntary termination of service may be required of
subscribers by the Grantee. No charge may be imposed by the
Grantee for any cable services delivered after the date of the
disconnect request. Upon the later of the date of actual
disconnection or the return of all company equipment to Grantee,
the Grantee shall under normal operating conditions, at least 95%
of the time measured on a quarterly basis, within thirty working
days return to such subscriber the amount of the deposit, if any,
collected by Grantee from such subscriber, less any undisputed
amounts owed to Grantee for cable services or charges prior to the
date of disconnection.
7.7.DCredits Upon Outage
Except for planned outages where subscribers are provided reasonable
notification in advance, upon a subscriber's request the Grantee shall provide
a pro-rated 24-hour credit to the subscriber's account for any period of four
hours or more during which that subscriber experienced the effective loss or
substantial impairment of video or audio service on the System.
7.7.EDowngrade Charges
Grantee may not impose Downgrade Charges on Subscribers, except as
allowed by applicable law.
7.7.FBilling Information Required
The Grantee bill to subscribers shall itemize each category of service,
equipment, or other applicable fees, and state clearly the charge therefor. The
Grantee shall make its best effort to inform subscribers as clearly as possible
when payments are due and when late fees and disconnection may occur.
7.7.GInformation to Subscribers
1)Upon installing initial service to or reconnecting each customer,
and upon request by the customer thereafter, and upon request by
the Grantor but no more often as a result of such request than
annually, the Grantee shall advise the customer, in writing, of:
a)the equipment and services currently available (including
parental lock-out devices) and the rates and charges which
apply;
b)the amount and criteria for any deposit required by
Grantee, if applicable, and the manner in which the deposit
will be refunded;
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City of Woodburn Cable Franchise
c)the Grantee's policies and procedures by which complaints
or inquiries of any nature will be addressed;
d)the toll-free telephone number and address of the Grantee's
office to which complaints and inquiries may be reported;
e)the company's practices and procedures for protecting
against invasions of subscriber privacy; and
f)the notice and referral information, as set forth in
subsection 7.7.G (2) hereof.
2)Notice to Subscribers
a)The Grantee shall inform the Grantor and subscribers
within 30 days, prior to any changes in programming or
increases in rates, costs, or charges to subscribers, or any
channel repositioning within the control of Grantee.
b)All Grantee promotional materials, announcements, and
advertising of residential cable services to subscribers and
the general public, where price information is listed in any
manner, shall clearly and accurately disclose price terms.
In the case of pay-per-view or pay-per-event programming,
all Grantee-prepared promotional materials must clearly
and accurately disclose price terms and any restrictions for
use. Likewise, in the case of telephone orders, the Grantee
shall take appropriate steps to ensure that Grantee
customer service representatives clearly and accurately
disclose price terms and any restrictions for use to potential
customers in advance of taking the order.
c)The Grantee shall, upon request by the Grantor and no
more often than annually, send at Grantee’s own expense
written notice approved by the Grantor to all subscribers
that any complaints or inquiries not satisfactorily handled
by the Grantee may be referred to the Grantor or its
designee, giving the address and phone number of the
appropriate Grantor office. Such notification may be
included with a billing statement.
7.7.HComplaint Acknowledgment
Within ten (10) days following receipt of a written complaint from a
subscriber which is separately mailed to and received at the
Grantee's primary business address, the Grantee shall provide an
acknowledgment by phone or in writing to the subscriber of receipt
of the complaint and of any action the Grantee has taken or intends
to take in response to the complaint. This requirement does not
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City of Woodburn Cable Franchise
apply to complaints submitted for processing by a regulatory
agency other than the Grantor, such as the FCC.
7.7.IComplaint Resolution
1)The Grantor may take all necessary steps to ensure that all
subscribers and members of the general public have recourse to a
hearing of any complaints, where there is evidence that the
Grantee has not settled the complaint to the satisfaction of the
person initiating the complaint.
2)For purposes of this Section, a "complaint" is a grievance related
to the service of the Cable System within the Franchise area that
is reasonably remediable by the Grantee, but does not include
grievances regarding the content of programming or information
services other than grievances regarding broad categories of
programming, and does not include customer contacts resulting in
routine service calls that resolve the customer's problem
satisfactorily to the customer.
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City of Woodburn Cable Franchise
8.GENERAL FINANCIAL AND INSURANCE PROVISIONS
8.1Compensation
8.1.AFranchise Fee
1)As compensation in consideration of permission to use the Public
Rights- of Way of the City for the construction, operation,
maintenance of a cable system within the City, Grantee shall pay
to the City an amount equal to five percent (5%) of Grantee's
Gross Revenues for the year as defined in Section 3.11, and such
additional amount as shall be permitted by applicable law and
approved by the City of Woodburn.
2)In the event that any applicable state or Federal law, rule or
regulation shall limit or prevent the City from imposing a
franchise fee in the amount provided for herein, Grantee may pay
to the City the maximum permissible amount. In the event the
maximum permissible amount is less than five percent (5%), and
the law or rule or regulation establishing the maximum
permissible amount subsequently is repealed or amended to
permit a higher amount, then Grantee shall pay the higher
amount if such additional amount is permitted by applicable law
and approved by the City of Woodburn.
8.1.BPayment of Franchise Fees
1)Payments due under this provision shall be computed and paid
quarterly, for the preceding quarter, as of March 31, June 30,
September 30, and December 31. Each quarterly payment shall
be due and payable no later than forty-five (45) days after the
dates listed in the previous sentence. A quarterly report shall be
made as hereinafter provided which shall contain the relevant
facts necessary for the Grantor to verify the amounts of Franchise
fee payments. Late franchise fee payments will be subject to late
fees calculated on the basis of nine percent (9%) per annum of the
amount past due.
2)No acceptance of any payment shall be construed as accord that
the amount paid is in fact the correct amount, nor shall such
acceptance of payment be construed as a release of any claim
Grantor may have for further or additional sums payable under
the provisions of this Franchise. All amounts paid shall be
subject to audit and recomputation by Grantor.
8.1.CFranchise Fees on Bundled Services
When Cable Services are bundled with non-cable services and sold to
subscribers at a discounted price, or simply as part of the total price for the
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bundled services, then the allocation of revenues for the purpose of
calculating Gross Revenues and cable franchise fees shall be reasonably
proportionate to the average relative price of the individual services as
normally charged during the period for which the franchise fees are
calculated. Nothing in this Section shall be construed to (1) regulate
Grantee’s rates in a manner beyond that which is expressly authorized by
federal law; or (2) compel Grantee to pay more than its statutorily authorized
taxes and fees on combined cable and non-cable services.
Faithful Performance Bond
8.2
8.2.APosting
Upon or before the effective date of this Franchise, the Grantee shall furnish
proof of the posting of a faithful performance bond running to the Grantor
with good and sufficient surety approved by the Grantor, in the penal sum of
FiftyThousand Dollars ($50,000.00), conditioned that the Grantee shall well
and truly observe, fulfill and perform each term and condition of this
Franchise. Such bond shall be maintained by the Grantee throughout the
term of this Franchise
8.2.BPayment of Premiums
Grantee shall pay all premiums charged for any bond or other security
required under Sections 8.2, 8.3, and 8.4, and unless the City Council
specifically directs otherwise, shall keep the same in full force and effect at
all times through the later of either:
1)The remaining term of this Franchise; or
2)If required by the Grantor, the removal of all of Grantee's System
installed in the Grantor's Streets and Public Ways.
8.2.CNotice of Termination
The bond shall contain a provision that it shall not be terminated or
otherwise allowed to expire without 30 days written notice first being given
to the Grantor. The bond shall be subject to the approval of the City Attorney
as to its adequacy under the requirements of Sections 8.2, 8.3, and 8.4.
During the term of the bond, Grantee shall file with the Grantor a duplicate
copy of the bond along with written evidence of payment of the required
premiums unless the bond otherwise provides that the bond shall not expire
or be terminated without 30 days prior written notice to the Grantor.
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City of Woodburn Cable Franchise
8.3Construction Bond
In the event that Grantee engages in System-wide construction activities during the period of this
Franchise,Grantee shall post a faithful performance bond or irrevocable letter of credit in a form
acceptable to the City Attorney, running to the Grantor, with good and sufficient surety approved
by the Grantor, in the sum of One Hundred Thousand Dollars ($100,000). Grantee shall pay all
premiums or other costs associated with maintaining the bond or letter of credit, and shall keep
the same in full force and effect at all times during the period of the System-wide construction.
8.4Damages and Defense
8.4.AGeneral Indemnification
Grantee agrees and covenants to indemnify, defend and hold the Grantor, its
officers, agents and employees harmless from any claim for injury, damage, loss,
liability, cost or expense, including expert witnesses and other consultants, court
and appeal costs and reasonable attorney fees or expenses, arising from any casualty
or accident to person or property, including, without limitation, copyright
infringement, defamation and all other damages, arising out of or by reason of any
construction, excavation, operation, maintenance, reconstruction or any other act
done under this Franchise, by or for Grantee, its agents, or its employees, or by
reason of any neglect or omission of Grantee to keep its System in a safe condition,
but not if arising out of or by reason of any negligence or willful misconduct by the
Grantor or its officers, agents or employees. The Grantor shall provide Grantee
prompt notice of any such claim which Grantee shall defend with counsel of its own
choosing and no settlement or compromise of any such claim will be done without
the prior written approval of the Grantor which approval shall not be unreasonably
withheld. Grantee shall consult and cooperate with the Grantor while conducting its
defense of the Grantor and the Grantor shall fully cooperate with Grantee.
8.4.BDefense of the Franchise
Grantee agrees and covenants to indemnify, defend and hold the Grantor, its
officers, agents and employees, harmless from injury, damage, loss, liability, cost or
expense, including expert witnesses and other consultants, court and appeal costs
and reasonable attorney fees or expenses, arising from or in any way related to the
grant of, or terms of, this Franchise. This agreement to indemnify, defend and hold
harmless encompasses, but is not limited to, injury, damages, losses, liabilities, costs
or expenses, including expert witnesses and other consultants, court and appeals
costs and reasonable attorney fees and expenses that in any way arise in connection
with a claim or defense that the Grantor: (1) lacked authority under federal or state
law, their respective charters, city codes or ordinances in issuing this Franchise to
Grantee; (2) violated federal or state laws, if any, in awarding this Franchise to
Grantee; (3) acted in any disparate or discriminatory manner against any incumbent
franchisee in awarding this Franchise to Grantee; (4) granted this Franchise to
Grantee in violation of any incumbent franchisee’s contractual rights; (5) are
required to alter the terms of another Franchise because of the terms of this
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City of Woodburn Cable Franchise
Franchise; or (5) accepted terms or conditions in the Franchise awarded to Grantee
which violate federal or state laws.
8.5Liability Insurance and Indemnification
8.5.AInsurance Coverage
Grantee shall maintain automobile and Worker's Compensation insurance, as
well as public liability and property damage insurance, that protects the
Grantee and the Grantor, its officers, agents and employees, from any and all
claims for damages or personal injury including death, demands, actions and
suits brought against any of them arising from operations under this
Franchise or in connection therewith, as follows:
8.5.BMinimums and Limits
The insurance shall provide coverage at all times for not less than $5,000,000
for personal injury to each person, $5,000,000 aggregate for each occurrence,
and $1,000,000 for each occurrence involving property damages, plus costs of
defense; or a single limit policy of not less than $5,000,000 covering all claims
per occurrence, plus costs of defense. The limits of the insurance shall be
subject to statutory changes as to the maximum limits of liability imposed on
municipalities of the State of Oregon during the term of this Franchise. The
insurance shall be equal to or better than commercial general liability
insurance.
The evidence of coverage for Workers' Compensation shall show that it
includes State of Oregon Statutory Limits, and Employer's Liability limits of
at least $5,000,000.
Grantee’s insurance carrier shall have an A. M. Best rating of “A” or better,
or a Best Financial Performance Rating of 7 or better.
8.5.CAdditional Insureds
The insurance shall be without prejudice to coverage otherwise existing and
shall name as additional insureds the Grantor and its officers, agents, and
employees. Notwithstanding the naming of additional insureds, the
insurance shall protect each insured in the same manner as though a
separate policy had been issued to each, but nothing herein shall operate to
increase the insurer's liability as set forth elsewhere in the policy beyond the
amount or amounts for which the insurer would have been liable if only one
person or interest had been named as insured. The coverage must apply as
to claims between insureds on the policy.
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8.5.DCancellation and Replacement
The Grantee shall provide notice to the Grantor immediately if the insurance
is canceled or materially altered so as to be out of compliance with the
requirements of this Section 8.5. If the insurance is canceled or materially
altered so as to be out of compliance with the requirements of this Section 8.6
within the term of this Franchise, Grantee shall provide a replacement
policy. Grantee agrees to maintain continuous uninterrupted insurance
coverage, in the amounts required, for the duration of this Franchise.
8.5.ECertificate of Insurance
Grantee shall maintain on file with the Grantor a certificate of insurance
certifying the coverage required above, which certificate shall be subject to
the approval of the City Attorney as to the adequacy of the certificate and of
the insurance certified under the requirements of Section 8.6.
The certificate shall show that the general liability portion of the insurance
includes:
1)Broad form property damage;
2)Products and completed operations;
3)Explosion, collapse, and underground exposures;
4)Contractual liability; and
5)Owners and contractors protective coverage.
8.5.FGrantor Held Harmless
The Grantee shall also indemnify, defend and hold harmless the Grantor and
its officers, agents and employees for any and all claims for damages or
personal injury which exceed the limits of insurance provided for in this
Section.
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9.RIGHTS RESERVED TO GRANTOR
9.1Grantor’s Purchase of the System
9.1.AContinuation of Operations / Purchase at Fair Market Value
In the event Grantor has declared a forfeiture for cause or otherwise revoked
for cause this Franchise agreement as provided in Sections 7.4 or 11 herein,
or in the event of expiration of the initial term of this Franchise agreement
without the Franchise being renewed or extended in accordance with Cable
Act guidelines, the Grantee shall continue its operations for a period of up to
270 days under the terms and conditions of this Franchise agreement and as
required by Section 11 herein, following the date of the forfeiture or
revocation or expiration of the initial term, if such continuation of operations
is ordered by the Grantor.
If the Grantor purchases the Cable System or any part of it under these
circumstances, the fair value of the System for purpose of this subsection
9.1.A shall be determined by mutual agreement between Grantor and the
Grantee. The Grantor, however, does not have a right of first refusal or other
right to purchase or acquire the Cable System under this Franchise.
For purposes of revocation or forfeiture under this subsection 9.1.A, the fair
value of all or part of the System shall be an equitable price for the System or
part of the System being acquired, reduced by the amount of any lien,
encumbrance, or obligation of the Grantee which Grantor may assume.
For any other purpose under this Section, the fair value of all or part of this
System shall be its fair market value, determined on the basis of the Cable
System valued as a going concern but with no value allocated to the
Franchise itself, reduced by the amount of any lien, encumbrance, or
obligation of the Grantee which Grantor may assume.
In the event of the Grantor's acquisition of all or portions of Grantee's Cable
System, as provided herein, Grantee shall use all best efforts to obtain any
needed consent to assignment, to the extent any existing and future rental,
lease, and lease-purchase arrangements for Grantee's Cable System or any
facilities to be acquired require any consent to assignment by third parties;
and Grantee shall not unreasonably withhold any consent to assignment of
any rental, lease, and lease-purchase arrangements for Grantee's Cable
System or any facilities to be acquired.
9.1.BTransfer of System to Others
In the event Grantor purchases, acquires, takes over, or holds all or parts of
the System pursuant to subsection 9.1.A or through any other lawful process,
Grantor shall have the right without limitation to assign, sell, lease, or
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otherwise transfer its interest in all or parts of the System to any other
persons, including any other Grantee of a cable communications Franchise,
on whatever terms Grantor deems appropriate.
9.1.CCable Act Requirements
The provisions of this Section shall be subject to the provisions 47 U.S.C. '627
(Section 547 of the Cable Act), as amended from time to time. It is not
intended that this Section diminish the rights of either the Grantor or the
Grantee under the Act, and any provision of this Section that purports to
diminish such rights shall be deemed superseded by the Act.
9.2Eminent Domain
Nothing in this Franchise is intended to expand or restrict the Grantor's lawful
condemnation authority.
9.3Right to Perform Franchise Fee Audit or Review
The Grantor shall have the right to perform, or cause to have performed, a formal
audit or a professional review of the Grantee's books and records, and, for the
specific purposes of a Franchise enforcement effort, the books and records of any
parent or affiliate company, for the purpose of determining the gross receipts of the
Grantee generated in any manner through the operation of the Cable System under
this Franchise and the accuracy of amounts paid as Franchise fees to the Grantor by
the Grantee, provided that any audit or review must be commenced not later than
five (5) years after the date on which Franchise fees for any period being audited or
reviewed were due. As part of any such audit, Grantee shall, upon request, identify
for the Grantor the amount collected by the Grantee or any parent or affiliate of the
Grantee from the use of Grantee's Cable System under this Franchise to provide
Cable Services. The cost of any such audit or review shall be borne by the Grantor,
except that if it is established that the Grantee has made underpayment of 2% or
more in Franchise fees than required by this Franchise, then the Grantee shall,
within 30 days of being requested to do so by the Grantor, reimburse the Grantor for
the full cost of the audit or review. To the extent that they are not involved in the
operation of the Cable System, Financial Partners shall not be subject to audit or
review of their Records under this Section 9.3; provided that, should specific Records
needed by the Grantor for an audit or review reside with a Financial Partner, it
shall be made available to the Grantor by the Grantee upon request. Nothing in the
Section implies that the Grantor waives its right to have legal recourse through the
courts to obtain Records necessary to the enforcement of the Franchise.
9.4Right of Inspection of Construction
The Grantor or its representatives shall have the right to inspect all construction or
installation work performed pursuant to the provision of this Franchise agreement
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and to make such tests as it shall find necessary to ensure compliance with the
terms of this Franchise and other pertinent provisions of law.
9.5Intervention
This Franchise does not alter any lawful right Grantor may have to intervene in
any suit or proceeding to which the Grantee is party which may have an effect upon
the construction, upgrade, maintenance or operation of the System
9.6Right to Require Removal of Property
At the expiration of the term for which the Franchise is granted providing no
renewal is granted following completion of the renewal procedures required by the
Cable Act, or upon its forfeiture or revocation, as provided for herein, the Grantor
shall have the right to require the Grantee to remove, at Grantee's own expense, all
or any part of the Cable System from all streets and public ways within the
Franchise area. If the Grantee fails to do so, the Grantor may perform the work and
collect the cost thereof from the Grantee. The actual cost thereof, including direct
and indirect administrative costs, shall be a lien upon all plant and property of the
Grantee effective upon placement in the lien books of the Grantor. Notwithstanding
the other provisions of this Section, the Grantee, by written notice to the Grantor,
may elect to abandon underground cable in place, in which event the Grantee shall
have no further obligation hereunder as to the abandoned cable; except that the
Grantor may nevertheless, by written notice, require the Grantee to remove cable as
deemed necessary by the Grantor to provide space for other authorized uses or to
accomplish or enable the accomplishment of other public purposes.
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10.RIGHTS OF INDIVIDUALS PROTECTED
10.1Discriminatory Practices Prohibited
10.1.AGrantee Shall Not Unlawfully Discriminate
The Grantee shall not deny service, deny access, or otherwise unlawfully
discriminate against subscribers, programmers, or persons on the basis or
race, color, religion, national origin, sex, age, disability, income, or, except as
otherwise provided herein, the area in which such person lives. The Grantee
shall adhere to the equal employment opportunity requirements of the
federal government, as expressed in Section 76.13(a) (8) and 76.311 of
Chapter 1 of Title 47 of the Code of Federal Regulations, as now or hereafter
constituted. The Grantee shall comply at all times with all applicable
federal, state, or local laws, rules and regulations relating to non-
discrimination.
10.1.BServices to Disabled
The Grantee shall comply with all laws regarding the provision of Cable
Services to Subscribers with disabilities, including the provision of a remote
control device to those subscribers who are mobility limited, or where a
member of the subscriber's household is mobility limited. This obligation
includes Grantee's compliance with all requirements for hearing impaired
customers, such as the provision of information concerning the cost and
availability of equipment to facilitate the reception of all basic services for the
hearing impaired. In addition, Grantee, upon request by a hearing impaired
Subscriber, shall make available a TDD/TTY, or shall make arrangements to
accommodate the Subscriber in a comparable manner satisfactory to the
Subscriber.
10.1.CPermitted Discounts
Nothing in this Section shall be construed to prohibit:
1)the temporary reduction or waiving of rates and charges in
conjunction with promotional campaigns; or
2)offering reasonable discounts to economically disadvantaged
citizens.
3)the establishment of different rates for different classes of
customers and services.
10.2Privacy and Other Rights
The Grantee shall be subject to 47 U.S.C Section 631 (Section 551 of the Cable Act),
as amended from time to time, regarding limitations on the cable company's
collection and use of personally identifiable information, and other issues involving
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the protection of subscriber privacy. In addition, subject to applicable law, the
Grantee shall not utilize, nor intentionally permit to be utilized by others, the two-
way communications capability of the System for unauthorized or illegal subscriber
surveillance of any kind. For purposes of this subsection, tenants who occupy
premises shall be deemed to be subscribers, regardless of who actually pays for the
service. Written consent, as required herein, shall not be required of any subscriber
by Grantee as a condition of receiving any other cable service.
10.3Permission of Property Owner Required
No cable, line, wire, amplifier, converter, or other piece of equipment owned by the
Grantee shall be installed by the Grantee without first securing the written
permission of the owner or tenant of any property involved except where there is an
existing utility easement or other easement reserved by plat or other conveyance. If
such permission or easement is later lawfully revoked, whether by the original or a
subsequent owner or tenant or Grantor, the Grantee shall remove forthwith on
request of the owner or tenant any of its equipment and promptly restore the
property to its original condition. The Grantee shall perform all installations and
removals in a workmanlike manner and shall be responsible for any damage to
residences or other property caused by the installation.
10.4Multiple Dwelling Units
Grantee shall offer and provide to individual units of a multiple housing facility,
such as a duplex, apartment or condominium unit, all services offered and provided
to other dwelling units within the Franchise area; provided that this requirement
shall not apply in cases where a) Grantee is providing services under a bulk services
agreement with a building owner, a) where offering full service not legally possible
because a building owner prevents it or because of other circumstances, or c) where
total construction costs would exceed $250 per subscriber and the subscriber is
unwilling to pay the amount of the cost exceeding that figure.
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11.TERMINATION AND EXPIRATION
11.1Revocation
11.1.AGeneral
In addition to any rights set out elsewhere in this document, the Grantor
reserves the right to declare a forfeiture or otherwise revoke this Franchise,
and all rights and privileges pertaining thereto, under certain circumstances.
11.1.BConditions of Revocation
The grounds for which the Grantor may declare forfeiture or revoke the
Franchise are the following:
1)the Grantee is in substantial violation of any material provision of
the Franchise agreement after application by the Grantor of a
remedy lesser than Franchise revocation pursuant to this
Franchise agreement, and fails to correct the violation after
written notice of the violation and proposed forfeiture and a
reasonable opportunity thereafter to correct the violation;
2)the Grantee or the Guarantor becomes insolvent, unable or
unwilling to pay its debts, or is adjudged a bankrupt;
3)the Grantee is found to have engaged in fraud or deceit upon the
Grantor, persons or subscribers;
4)the Grantee fails to obtain and maintain any permit required by
any federal or state regulatory body, relating to the construction,
maintenance and operation of the System; provided, however,
that the Grantee shall be allowed a reasonable time to cure
failure to obtain any permit; or
5)the Grantee fails to maintain the full amount of its insurance and
security fund or to post a performance bond, and construction
bond, as required under the terms of this Franchise.
11.1.CDue Process
Upon the occurrence of one of the events set out above, following 30 days
written notice to Grantee of the occurrence and the proposed forfeiture and
an opportunity for Grantee to be heard, Grantor may by ordinance declare a
forfeiture. In a hearing of the Grantee, the Grantee shall be afforded due
process rights as if the hearing were a contested case hearing subject to ORS
Chapter 183, including the right to subpoena and cross-examine witnesses, to
subpoena documents, and to require that all testimony be on the record.
Findings from the hearing shall be written, and shall stipulate the reasons
for the Grantor's decision. In the event that the Grantee believes that the
Grantor improperly has declared a forfeiture, the Grantee may file such
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proceeding as is appropriate in a court of competent jurisdiction to determine
whether the Grantor properly has declared a forfeiture.
11.2Receivership
In addition to its other rights and remedies as set forth in this Franchise, the
Grantor shall have the right, subject to federal law, to declare a forfeiture of this
Franchise one hundred and twenty (120) days after the appointment of a receiver or
trustee to take over and conduct the Grantee's business, whether in receivership,
reorganization, bankruptcy or other similar action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the expiration of said
one hundred and twenty (120) days, or unless: a) within one hundred and twenty
(120) days after such appointment, the receiver or trustee shall have fully complied
with all provisions of this Franchise and remedied any and all violations or defaults,
as approved by a City Council resolution; and b) within said one hundred and twenty
(120) days, such receiver or trustee shall have executed an agreement with the
Grantor, duly approved by the Grantor and the court having competent jurisdiction,
in which such receiver or trustee assumes and agrees to be bound by each and every
provision of this Franchise.
11.3Expiration
Upon expiration of the Franchise, in the event there is no forfeiture or revocation of
the Franchise, and the Grantee desires to renew the Franchise, both the Grantee
and the Grantor shall abide by the Franchise renewal provisions of the Cable Act, as
amended from time to time.
11.4Continuity of Service Mandatory
It shall be the right of all subscribers to receive all available services insofar as their
financial and other obligations to the Grantee are honored. In the event that the
Grantee elects to overbuild, rebuild, modify, or sell the System, or Grantor revokes
or fails to renew the Franchise, the Grantee shall make its best effort to ensure that
all subscribers receive continuous uninterrupted service, regardless of the
circumstances, during the lifetime of the Franchise.
In the event of purchase, lease-purchase, condemnation, acquisition, taking over and
holding of plant and equipment, sale, lease or other transfer to any other person,
including any other Grantee of a cable communications Franchise, the Grantee shall
continue its operations for a period of 270 days under the terms and conditions of
this Franchise agreement following the date of the transfer, if such continuation of
operations is ordered by the Grantor with a view to maintaining continuity of service
to all subscribers.
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12.OPERATION AND MAINTENANCE
12.1Books and Records
The Grantee shall maintain a business office within a radius of 25 miles of
Woodburn, for managing the Cable System, and, subject to the provisions of Section
10 of this Franchise and, to such privileges as may be established under Oregon law,
shall make available to the Grantor access to all books and records reasonably
necessary to the regulation or enforcement of the material terms of this Franchise.
The Grantor shall have the right under this provision to inspect at any time during
normal business hours upon reasonable notice, all such records, books, electronic or
optical files, maps, plans, service complaint logs, performance test results, records
required to be kept by the Grantee and also of any parent company, affiliate or any
cable operator, which directly relate to the operation of the Cable System in the
Franchise Area, and all telephone logs and customer service logs maintained by the
Grantee. If the records the Grantor wishes to inspect under the terms of this
Section are not available in the business office within the radius of 25 miles, then
the Grantee shall pay reasonable travel expenses to permit the Grantor to inspect
the records. Access to the aforementioned records shall not be denied by the Grantee
to representatives of the Grantor on the basis that said records contain "proprietary
information," nor on the basis that they contain trade secrets unless the Grantor
cannot protect the trade secrets from disclosure under Oregon law. To the extent
allowed under Oregon law, the Grantor shall protect proprietary information
including trade secrets of the Grantee from disclosure. To the extent that they are
not involved in the operation of the Cable System, Financial Partners shall not be
subject to inspection of their Records under this Section 12.1; provided that, should
specific Records needed by the Grantor for a regulatory or enforcement effort reside
with a Financial Partner, it shall be made available to the Grantor by the Grantee
upon request. Nothing in the Section implies that the Grantor waives its right to
have legal recourse through the courts to obtain Records necessary to the
enforcement of the Franchise.
Grantee agrees to meet with a representative of the Grantor upon request to review
its methodology of record-keeping, financial reporting, computing franchise fee
obligations, and other procedures the understanding of which the Grantor deems
necessary for understanding the meaning of reports and records.
12.2Communications with Regulatory Agencies
A list of all material written petitions, applications, communications, and reports
submitted by the Grantee, and also by any affiliate or any cable operator of the
System authorized by this Franchise, to the Federal Communications Commission,
Securities and Exchange Commission, or any other federal or state regulatory
commission or agency having jurisdiction in respect to any matters affecting the
Grantee's provision of Cable Services pursuant to this Franchise agreement, shall
be submitted to the Grantor upon request, and copies of any such documents and
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their replies from respective agencies shall also be made available to the Grantor
upon request. In addition, copies of any communications to and from any regulatory
agency pertaining to any alleged, apparent or acknowledged violation of an
applicable rule or law of the agency affecting operations within the Franchise area,
shall be immediately submitted to the Grantor, if the communications are to or from
the Grantee, or upon written request from the Grantor if the communications are to
or from an affiliate or cable operator of the Cable System authorized by this
Franchise; except that such submission shall not be required in the case of the
customary first signal leakage violation notice from the FCC based on a complaint
from an individual subscriber. To the extent that Financial Partners are not
involved in the operation of the Cable System, Financial Partners shall not be
subject to the requirements of this Section 12.2; provided that, should specific
Records needed by the Grantor for a Franchise enforcement effort reside with a
Financial Partner, they shall be made available to the Grantor by the Grantee upon
request. Nothing in the Section implies that the Grantor waives its right to have
legal recourse through the courts to obtain Records necessary to the enforcement of
the Franchise.
12.3Reports
12.3.AForm of Reports
With respect to all reports required under this Franchise, the Grantor shall
accept reports in the form normally generated by the Grantee so long as the
information requested by the Grantor can reasonably be recognized and
understood by the Grantor in such form; provided, however, that nothing in
this Franchise shall excuse the Grantee from providing such information as
may be required by the Grantor for the administration and enforcement of
the Franchise. The requirements of this Section shall not require the
Grantee or an affiliate to keep on a regular basis or in a particular form such
records or information which may be required on an ad hoc basis by the
Grantor, unless otherwise required by the Franchise. .
Within 30 calendar days after the end of each fiscal quarter of the Grantee,
Grantee shall, upon request of the Grantor, submit to the Grantor a
summary report of all trouble call complaints received by or referred to
Grantee within the report quarter. The reports shall contain, as a minimum,
the specific nature of complaints, remedial action taken if any, and the
current status of the complaints. Upon request by the Grantor, Grantee shall
also provide outage reports, summary statistics on patterns of complaints or
service problems, and other customer service information, provided that such
information may be reasonably generated by the Grantee.
Within 45 days after the end of each of the Grantee's fiscal quarters, the
Grantee shall submit a written report to the Grantor, verified by an officer of
Grantee, which shall contain an accurate statement of all gross revenues
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earned and gross receipts collected by the Grantee or any cable operator,
related to operation of the Cable System Franchised hereunder, in sufficient
detail to enable the Grantor to verify the accuracy of Franchise fee payments.
12.3.BAnnual Report
No later than June 1 following the end of the Grantee's fiscal year each year,
Grantee shall present a written report to the Grantor which shall include:
1)Financial statements for the Grantee and for any parent company
of the Grantee—audited if existing, otherwise unaudited.
2)A financial report for the Franchise area identifying gross
revenues and receipts for the previous year. Such report shall
identify revenues derived from each category of services
generating revenues, including but not limited to basic service,
expanded basic service, pay tv, pay-per view, internet service,
home shopping, and advertising. The report shall be certified as
accurate by an officer of the Grantee; except that, if requested by
the Grantor, no more often than once every three years, the report
shall be audited.
3)A summary of the previous year's activities including, but not
limited to, subscriber totals in each category and new services.
All financial reports required under this Section shall be presented to the
Grantor accompanied by such notes and explanations as are required to fully
understand the reports. Such notes and explanations shall include, but not be
limited to, an explanation of any and all deductions made from Gross
Revenues in order to arrive at Gross Receipts for the calculation of Franchise
fees to be paid to the Grantor.
12.3.CAdditional Reports
The Grantee shall prepare and furnish to the Grantor, at the times and in the
form prescribed, such additional reports with respect to its operation, affairs,
transactions, or property, as may be reasonably necessary and appropriate to
the determination of the correctness of Franchise Fees paid by the Grantee,
or the specific performance with respect to any other material provision of
this Franchise. The requirements of this Section are not to be interpreted as
authorization to establish additional regular reporting; rather they authorize
the Grantor’s requiring information from time to time, on an ad-hoc basis, as
may be necessary for Franchise administration and enforcement.
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12.4Safety
12.4.ASafety Standards
The Grantee shall, at all times, employ the standard of care attendant to the
risks involved and shall install and maintain in use commonly accepted
methods and devices for preventing failures and accidents which are likely to
cause damage, injury, or nuisance to the public or to employees of the
Grantor.
12.4.BAdherence to National Electric Safety Code
The Grantee shall install and maintain its wires, cable, fixtures, and other
equipment in accordance with the requirements of the National Electric
Safety Code.
12.4.CProper Maintenance of Equipment
All lines, equipment and connections in, over, under, and upon either the
streets and public ways of Grantor or private property within boundaries of
Grantor, wherever situated or located, shall at all times be kept and
maintained in good order and repair.
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13.MISCELLANEOUS PROVISIONS
13.1Compliance with Laws
The Grantee shall comply with all federal and state laws and regulations, including
regulations of any administrative agency thereof, as well as all general ordinances,
resolutions, rules and regulations of the Grantor heretofore or hereafter adopted or
established during the entire term of this Franchise, provided that any such
ordinances, resolutions, rules and regulations of the Grantor hereafter adopted or
established shall not conflict or interfere with the existing rights of the Grantee
hereunder. The Grantor shall make a good faith effort to provide copies to the
Grantee of all general ordinances, resolutions, rules, regulations, and codes, and any
amendments thereto, to which the Grantee is subject under this Franchise. ORS
279.312, 279.314, 279.316, and 279.320, having to do with certain conditions of
labor, payment for medical care, workers’ compensation insurance, liens, and other
matters, are included in this Franchise by reference.
13.2Severability
If any Section, subsection, sentence, clause, phrase or word of the Franchise
agreement is held to be invalid or unconstitutional by any court of competent
jurisdiction or pre-empted by federal or state regulations or law, such Section,
subsection, sentence, clause, phrase or word shall be deemed a separate, distinct and
independent provision and such holding shall not affect the validity of the remaining
provisions hereof.
13.3Captions
The captions to Sections throughout this Franchise agreement are intended solely to
facilitate reading and reference to the Sections and provisions contained herein.
Such captions shall not affect the meaning or interpretation of this Franchise
agreement.
13.4No Recourse Against the Grantor
Grantee’s recourse against the City of Woodburn, its officers, agents and employees,
for any claim arising from any provision or requirement of this Franchise, shall be
limited as prescribed by applicable laws, rules and regulations as in effect from time
to time including without limitation the restrictions set forth in 47 USC & 555a, the
Local Government Antitrust immunity Act and sovereign immunity.
13.5Nonenforcement by Grantor
The Grantee shall not be relieved of its obligations to comply with any of the
provisions of this Franchise agreement by reason of any failure of the Grantor to
enforce prompt compliance.
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13.6Force Majeure
If by reason of force majeure the Grantee is unable in whole or in part to carry out
its obligations hereunder, the Grantee shall not be deemed in violation or default
during the continuance of such inability. The term "force majeure" as used herein
shall mean the following: acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders of the government of the United States
of America, or of the State of Oregon, or their departments, agencies, political
subdivisions, or officials; acts of any civil or military authority; insurrections; riots;
epidemics; landslides; earthquakes; lightning; fires; hurricanes; volcanic activity;
storms; floods; washouts; droughts; restraint of government and people; civil
disturbances; explosions; partial or entire failure of utilities; and similar occurrences
outside the control of the Grantee. The Grantee agrees, however to give its best
efforts to remedy as soon as possible, under the circumstances, the cause or causes
preventing Grantee from carrying out its responsibilities and duties under this
Franchise agreement.
13.7Entire Agreement
This Franchise agreement contains the entire agreement between the parties,
supersedes all prior agreements or proposals except as specifically set forth herein,
and cannot be changed orally but only by an instrument in writing executed by the
parties.
13.8Consent
Wherever the consent or approval of either the Grantee or the Grantor is specifically
required in this Franchise, such consent or approval shall not be unreasonably
withheld.
13.9Notices and Time Limit for Grantee Communications
All communications with the Grantor by the Grantee referred to in this Franchise
shall be made through the Office of the City Administrator of Woodburn, unless
otherwise specified in this Franchise. Grantee shall provide any written
communication required by this Franchise within Thirty (30) days of being
requested to do so by the Grantor, in each case in which no other specific minimum
time limit for a communication is identified in the Franchise.
13.10Consistency of Franchise with Cable Act
The parties intend and believe that all of the provisions hereof are consistent with
and permitted by the Cable Communications Policy Act of 1984, as amended in 1992
and 1996.
13 – MISCELLANEOUS PROVISIONS / Page 61
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City of Woodburn Cable Franchise
13.11Franchise Review
Either the Grantor or the Grantee may request the other party to participate in good
faith negotiations, no more often than tri-annually beginning three years after the
effective date of this Franchise, for a period not to exceed 6 months, to consider
adoption of amendments to the Franchise. There shall be no obligation for either
party to enter negotiations.
If the parties enter negotiations, the subjects of consideration, or areas in which the
Franchise may be subject to amendment, shall be limited to the following: a)
Technology, b) parity with neighboring systems; c) PEG Access and Institutional
Network support by the Grantee; d) customer service issues; and e) Franchise term.
Following negotiations, amendments to the Franchise may be presented to the City
Council for adoption. Nothing in this Section requires either the Grantor or the
Grantee to agree to any amendment to the Franchise, and any amendment to the
Franchise must be formally accepted by both parties.
13.12Grantee Responsibility for Costs of Franchise Compliance
Except as otherwise specifically stated in this Franchise, it shall be the
responsibility of the Grantee to bear the cost of compliance with all of the terms of
the Franchise.
13.13Notice
Any notice provided for under this Franchise shall be sufficient if in writing and
delivered personally, sent by overnight delivery service, or deposited in the United
States mail, postage prepaid, certified mail, return receipt requested, addressed as
follows, or to such address as the receiving party specifies in writing:
If to the City: Office of the City Administrator
270 Montgomery St.
Woodburn, OR 97071
If to the Grantee: James A. Penney, Executive Vice President
WaveDivision VII, LLC d/b/a Wave Broadband
401 Kirkland Parkplace, Suite 500
Kirkland, WA 98033
13.14Grantor Rights Upon Termination
If a renewal or extension of the Grantee's Franchise is denied or the Franchise is
lawfully terminated, and the Grantor lawfully acquires ownership of the Cable
13 – MISCELLANEOUS PROVISIONS / Page 62
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City of Woodburn Cable Franchise
System, any such acquisition shall be at the price determined pursuant to the
provisions set forth in Section 627 of the Cable Act.
The Grantee and the Grantor agree that in the case of a final determination of a
lawful revocation of the Franchise, the Grantee shall continue to operate the System
for a period of 270 days, or until the Grantor determines in writing that the System
has been transferred to a qualified transferee, whichever is earlier. During this
period, the Grantee shall be given a reasonable opportunity to effectuate a transfer
of its Cable System to a qualified third party.
13.15No Waiver
No provision of this Franchise will be deemed waived unless such waiver is in
writing and signed by the party waiving its rights. However, if Grantee gives
written notice of a failure or inability to cure or comply with a provision of this
Franchise, and the Grantor fails to object within a reasonable time after receipt of
such notice, said provision will be deemed waived.
13 – MISCELLANEOUS PROVISIONS / Page 63
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City of Woodburn Cable Franchise
EXHIBIT A: ORIGINATION POINTS
City Hall
Woodburn High School
Fire District
Woodburn Public Library
Woodburn Police Department
Exhibit A / Page 64
March 6, 2013 WAVE
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City of Woodburn Cable Franchise
EXHIBIT B: ACCEPTANCE AND GUARANTEE
City Administrator
City of Woodburn
270 Montgomery St.
Woodburn, OR 97071
This is to advise the City of Woodburn, Oregon (the “Grantor”) that WaveDivision VII, LLC
d/b/a Wave Broadband (the "Grantee") hereby accepts the terms and provisions of
Ordinance No. , passed by the City Council on , 2013 (the Franchise)
granting a Franchise for ten (10) years to WaveDivision VII, LLC. The Grantee agrees to
abide by each and every term of the Franchise.
WaveDivision VII, LLC
BY
TITLE
DATE
The undersigned guarantees the faithful performance of each and every term of this
Franchise by the Grantee.
[Guarantor]
BY
TITLE
DATE
Exhibit B / Page 65
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City of Woodburn Cable Franchise
EXHIBIT C: PRICE FOR WORK—INCREMENTAL COST
1.Specification of Costs
For the construction of the I-Net or Interconnection of I-Net or PEG Access Channels,
Grantee agrees that the term "Direct Costs" include only those costs specified in Section 2
of this Exhibit, and no Indirect Costs.
2.Direct Costs are:
2.1.Costs of necessary materials, equipment and hardware to construct the I-
Net/Interconnection;
2.2.Payments made by Grantee to subcontractors in accordance with the
requirements of the subcontracts;
2.3.Wages and salaries of Grantee's employees performing work on the relevant
portion of the I-Net/Interconnection, including those employees involved in
designing and mapping the I-Net/Interconnection (to the extent such
designing and mapping is a Direct Cost that is over and above any Direct
Cost that Grantee would incur in designing and mapping its Cable System,)
and including management and supervision costs incurred by persons
working within the City (over and above any Direct Cost that Grantee would
incur in managing and supervising its own Cable System), and also including
their welfare, unemployment compensation, social security and other
benefits, for such part of their time as is employed on this work;
2.4.Payroll taxes and insurance and contributions applicable to wages and
salaries of Grantee's employees performing work on the relevant portion of
the I-Net/Interconnection, and sales, excise, business and occupation, and
other taxes paid by Grantee on materials, equipment, supplies and services
chargeable to the relevant portion of the I-Net/Interconnection;
2.5.Any labor force travel expenses directly chargeable to the work on the
relevant portion of the I-Net/Interconnection;
2.6.Costs of necessary Franchises and permit fees, including
Right-of-Construction Permit fees and inspection fees, if any, related to the
relevant portion of the I-Net/Interconnection;
2.7.Actual rental costs for the use of any necessary temporary facilities, or
special machinery, equipment and hand tools used in the work on the
relevant portion of the I-Net/Interconnection;
2.8.That portion directly attributable to this Franchise of premiums for
insurance and bonds related to the design, construction, lease of optical fibers
and maintenance of the I-Net/Interconnection;
2.9.Losses, expenses, and cost of reconstructing any work destroyed or damaged,
Exhibit C / Page 66
March 6, 2013 WAVE
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City of Woodburn Cable Franchise
not compensated by insurance or otherwise, sustained by Grantee in
connection with the work, provided they have resulted from causes other
than the fault or negligence of Grantee;
2.10.Costs of removal of debris on the relevant portion of the I-
Net/Interconnection;
2.11.Costs incurred on the relevant portion of the I-Net/Interconnection in taking
action to prevent threatened damage, injury, loss in case of an emergency
affecting the safety of persons and property; and
2.12.Other costs incurred on the relevant portion of the I-Net/Interconnection in
the performance of the work if and to the extent approved in advance in
writing by Grantor.
3."Indirect Cost" shall include:
3.1.Salaries and other compensation of Grantee's employees stationed at
Grantee's principal office or offices other than the work site, except as
provided in Section 2.3 of his Exhibit;
3.2.Overhead and general expenses, except as may be expressly included in
Section 2.3 of this Exhibit;
3.3.Grantee's capital expenses, including interest on Grantee's capital, employed
for the work;
3.4.Costs due to the fault or negligence of Grantee, subcontractors, anyone
directly or indirectly employed by any of them, or for those whose acts any of
them may be liable, including, but not limited to, costs for the correction of
damage, defective or nonconforming work, disposal and replacement of
materials and equipment incorrectly ordered or supplied, in making good
damage to property not forming a part of the work.
4.“Incremental Cost” shall mean:
That portion of the Direct Cost wholly attributable to the Grantor’s requirements; i.e., only
that portion of the Direct Cost which would not have been incurred but for the obligation to
construct, operate or maintain facilities required by the Grantor in accordance with this
Franchise.
Exhibit C / Page 67
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87
Agenda Item
March11, 2013
TO:Honorable Mayor and City Council, Acting as the Local Contract
Review Board, through City Administrator
FROM:Dan Brown, Public Works Director
SUBJECT:
AWARD OF CONSTRUCTION CONTRACT FOR THE I-5 INTERCHANGE –
FORCE MAIN AND SANITARY SEWER SERVICES RELOCATION EAST OF
ASTOR WAY
RECOMMENDATION:
That the City Council, acting as the Local Contract Review Board,award the
construction contract for the I-5 Interchange –Force Main and Sanitary Sewer
Services Relocation East of Astor WayProjecttoCanby Excavating, Inc.in the
amount of .
$165,895.00
BACKGROUND:
The contract involves the relocation of existing city sanitarysewer main line and
sanitary sewer lateralsthat are in conflict with the proposed 33” storm sewer line
which will be installed this summer during stage I of the I-5 Interchange Project.
The project includes theextension of an existing sanitary sewer force main
across highway 214and thereconnection of five existing sanitary sewer services.
Bids for the utility relocation project were opened on February 28, 2013.A total
of Seven (7) bids were received.Six (6) bidswere received from responsible, pre-
qualified Bidders. One (1) bid wasnonresponsive.
Offers received are as follows:
No:NameAmount
1 Canby Excavating, Inc $165,895.00
2 ML Houck Construction $166,111.00
3 Kerr ContractorsOregon, Inc.$171,495.00
4 Subcom Excavation & Utilities LLC $172,475.00
5 Jesse Rodriguez Construction$192,951.00
Jeff Kersey Construction
6$194,005.55
Agenda Item Review:City Administrator __x____City Attorney ___x___Finance __x___
88
Honorable Mayor and City Council
March 11, 2013
Page 2
7 M&M Earthworks NR*
Engineer’s Estimate $188,307.20
NR* - Nonresponsive Bids
The recommended award is 12%under the Engineer’s estimate.
DISCUSSION:
The timely relocation ofexisting City sanitary sewer facilities that are in conflict
with the upcoming I-5 Interchange Projectis critical for minimizing delays and
enabling a successful project.
The contract award is in conformance with public contracting laws of the State
of Oregon as outlined in ORS Chapter 279C and the lawsandregulations of the
City of Woodburn, therefore, staff is recommending the contract be awarded.
FINANCIAL IMPACT:
The project will be funded using fifty percent (50%) Street/Storm System
Development Charge Fund 376, as authorized by FY 2012-2013 Supplemental
Budget approved by Council on February 11, 2013. This expenditure will be
credited to the City and reduce its outstanding contributory obligation to the
ODOT Interchange and Transit Facility Project. The remaining fifty percent (50%)
will be provided by Sewer Construction Fund 465.
Estimated Project Cost Summary:
Design and Technical Services $20,000.00
Construction Contract $165,895.00
Construction Contingency $25,000.00
Construction Management & Inspection $20,000.00
Total Estimated Project Cost$230,895.00
Budgeted ProjectCost Estimate $250,000.00
89
CITY OF WOODBURN
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