Ord 2307 - Cable TV Franchise
COUNCIL BILL NO. 2362
ORDINANCE NO. 2307
AN ORDINANCE GRANTING A CABLE TELEVISION FRANCHISE TO
DIRECTLINK OF OREGON, INC. AND DECLARING AN EMERGENCY.
WHEREAS, pursuant to Ordinance No. 2093, the City granted a cable television
franchise ("the Prior Franchise") to Northland Cable Television, Inc.; and
WHEREAS, pursuant to Ordinance No. 2211, the Prior Franchise was transferred by the
City from Northland to North Willamette Telecom, Inc.; and
WHEREAS, pursuant to Ordinance No. 2299 (as amended by Ordinance No. 2306) the
City transferred the Prior Franchise from North Willamette to Willamette Broadband, LLC,
contingent upon the completion of certain conditions, one condition of which was the
negotiation of the Franchise granted herein; and
WHEREAS, North Willamette Telecom, Inc became DirectLink of Oregon, Inc.;
NOW, THEREFORE,
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
Section 1. The City of Woodburn hereby grants to DirectLink of Oregon, Inc. 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.
Section 2. The terms and conditions of the Franchise are memorialized in the Cable
Television Franchise Agreement between the City of Woodburn, Oregon and DirectLink of
Oregon, Inc. which is affixed to this Ordinance as Attachment "A II and is by this reference
incorporated herein.
Section 3. The duration of the Franchise shall be ten (10) years, commencing on January
2, 2002 and ending on December 31, 2011.
Section 4. The Franchise shall, on January 2, 2002, replace the Prior Franchise granted
by the City to Northland Cable Television, Inc., pursuant to Ordinance No. 2093 and the terms
and conditions of the Prior Franchise shall have no further legal force and effect.
Section 5. This ordinance being necessary for the immediate preservation of the public
peace, health and safety, an emergency is declared to exist and this ordinance shall take effect
immediately upon passage by the City Council and approval by the Mayor.
Page 1 - COUNCIL BILL NO. 2362
ORDINANCE NO. 2307
Approved as to fOrrn~' ~ ~
City Attorney
APPROVED:
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST: fY\~ ~.
Mary Tennant, City Recorder
City of Woodburn, Oregon
Page 2 - COUNCIL BILL NO. 2362
ORDINANCE NO. 2307
/2.-/0- 200/
Date
December 10, 2001
December 11. 2001
December 11, 2001
December 11. 2001
ATTACHMENT -A
Page -'-- of PI R.
CABLE TELEVISION
FRANCHISE AGREEMENT
between
CITY OF WOODBURN, OREGON
and
DirectLink of Oregon, Inc.
Final Draft, December 6, 2001
ATTACHMENT-d-
Page -4... of 8;)
City of Woodburn Cable Franchise
TABLE OF CONTENTS
1. PURPOSE AND INTENT........... ......... ................................................ ........ 1
1 . 1 Intent.. . . . . . . .. .. . . . . .. . . . .. . . . . . . . . .. . . .. . . .. . . . . .. .. .. . .. .. .. . . . .. . . . .. . . . .. . . .. . .. . . .. . .. .. . . .. .. .. . .. 1
1.2 Purpose.. ..... . . . .......... . . ........ ....... . ..... .. . . . ....... . . .. ...... . . ... ... . .. . . . .. .. .. . . .. .... . ... 1
2. DEFINITIONS .... .... ....... ..... ......... ......... ....... ....... ....... ....... .................. ... .... 2
3. GRANT OF FRANCHISE. ...... ... ..... ......... ...... ........ ....... ...... ...... ....... ............ 9
3.1 Grant.................................................................................................... 9
3.1.A Grant of Franchise... ...... .......... .................................................. ........ .....9
3.1.B Police Power and Laws............................................................................ 9
3. 1. C Compliance by Affiliates.......................................................................... 9
3.1.D No Rights by Implication......................................................................... 9
3.2 Use of Streets and Public Ways ............................................................10
3.3 Duration and Effective Date of Franchise ............................................. 10
3.4 Franchise Not Exclusive.......................................................................11
3.5 Franchise Non-Transferable................................................................. 11
3.5.A No Transfer Without Consent................................................................ 11
3.5.B Notification............. .............................................................................. 11
3.5.C Request for Approval....... ..... ...... ........................................................... 12
3.5.D Cable Act Requirements Apply.............................................................. 12
3.5.E Filing Evidence of Transfer.................................................................... 12
3.5.F Grantor Inquiry into Qualifications....................................................... 12
3.5.G Approval No Waiver............................................................................... 12
3.5.H Exceptions..................................................................................... ........ 13
3.6 Franchise Acceptance.......................................................................... 13
3.6.A Filing.................................................................................................... 13
3.6. B Failure to File....................................................................................... 13
4. CONSTRUCTION AND SERVICE REQUIREMENTS ................................... 14
4.1 General...... ...................................... ................................................... 14
-
4.2 System Upgrade and Construction Schedule ........................................14
4.2.A System Upgrade Required..................................................................... 14
4.2.B Construction Plan and Schedule ...... ..... ..... ....... ........ ......... ........ ..... ......14
4.3 Right of Inspection of Construction ......................................................15
December 6, 2001 /3:00 PM
TABLE OF CONTENTS / Page i
ATTAC~MENT .A
Page of 8,;:(
City of Woodburn Cable Franchise
4.4 Provision of Residential Service............................................................ 15
4.4.A In General...... ................. .................................................................... .15
4.4.B Low-density Areas............................................................................... ..16
4.4. C Commercial Rates...,............................................................................. 17
4.4.D Newly Annexed Areas............ ...... ............................... ....................... ....17
4.4.E New Subdivisions................ .................. ............................ ..,............... ..18
4.4.F 18
4.5 Erection of Poles.. ... . . ..... ... . ....... . . ....... . .... .. ... . . .... . ... . .. . . . . . . ..... . . . .. .... . . ..... 18
4.6 Trimming of Trees or Other Vegetation .................................................18
4.7 Repair and Restoration of Streets, Public Ways and Grounds ...............18
4.8 Construction Codes....... ........ ....... ........ ............ .............. ........ ............. 19
4.9 Reservations of Street Rights............................................................... 19
4.10 Street Vacation and Abandonment....................................................... 20
4.11 Movement of Facilities.. ......... ........ .......... .................... ..... ........ ...........20
4.12 Undergrounding .................................................................................. 20
4.12.A Underground Requirement................................................................... 20
4.12.B Use of Conduit..... ..... ........ ................. ..... ..... ................... ..... ...... .......... .21
4.13 Location Maps..................................................................................... 21
4. 14 Emergency... . ......... .......... . ........ ........ . ......... ............ . . ......... . ........ . ....... 21
5. SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS ........................22
5.1 System Configuration. ......... ......... ......... ........... .............. ........ ........ .....22
5.2 Channel Capacity ......... ........ ......... ......... ............ ............ ........ ............. 22
5.3 Emergency Alert Capability .................................................................. 22
5.4 Standby Power......... ............................................................................ 22
5.5 Parental Control Lock ......... ...... .......... ........ ............ ..... ... ... ... ..... ..... .....22
5.6 Technical Standards............................................................................ 23
5.7 Performance Testing. .......... ........ .......... ........ ........ ....... ........ ......... .......23
5.7.A Schedules............................................................................................. 23
5.7. B Reporting.............................................................................................. 23
5.7. C Inspection............................................................................................. 23
5.7.D FCC Compliance ....... .......... ............... ...... .......................... ........... ..... ...23
5.7.E Remedy for Non-Compliance....... .......... ............................................. ...24
6. SERVICES AND PROGRA.MMING... ..... ....... ....... ........ ...... ..... ........ ....... ..... 25
December 6, 2001 /3:00 PM
TABLE OF CONTENTS / Page it
ATTAC~ENT A
Page of B:::;
City of Woodburn Cable Franchise
6.1 Programming Categories and Number of Services .................................25
6.2 Changes in Video Programming Services.............................................. 25
6.3 Leased Channel Service....................................................................... 25
6.4 Community Access and Local Programming......................................... 26
6.4.A Management and Control of Access Channels .......................................26
6.4.B Channel Capacity and Use................ ................................... ............. ... .26
6.4.C Financial Support for PEG Access.........................................................28
6.4.D Studio Improvement...... ...... ....... ......... ............................................... ..29
6.4.E PEG Support Not Franchise Fees ..........................................................29
6.4.F Technical Quality...... ........ ....... ......... ....... ............ .......... .......................30
6.4. G Change in Technology........................................................................... 30
6.4.H Local News Operation ...... ...... .......... .......... ..... ....... ............................. ..30
6.4.1 Non-Commercial Use.................... ........................................................31
6.4.J Interconnection of PEG Access.............................................................. 31
6.5 Institutional Network .......... ........ ........ ........ ............. ..... .... ........ ...........32
6.5.A Obligation to Construct................ ............. ........ ......... ..... ... ..... ..... ..... ....32
6.5.B I-Net Design, Functionality and Management...................................... ..32
6.5.C Cost and Method of Payment ................................................................33
6.5.D Process for Integrating I-Net with System Upgrade and Future
Construction............................ ............................................................. 33
6.5.E Interconnection of I-Net ...... .................................................................. 35
6.5.F Limits on Use................ ............ ............................................................ 35
6.5.G No Charge for I-Net Use........ ..... ........ ...................................................37
6.6 Credit Against Incremental Costs ......................................................... 37
7. FRANCHISE REGULATION AND CUSTOMER SERVICE STANDARDS........ 38
7.1 Intent............................................ ......................................................38
7.2 Areas of Regulation and Administration ............................................... 38
7.3 Rate Regulation .. ......... ........... ........ ........ ........... .... ....... ... ..... ......... ......38
7.3.A Rate Regulation Right Reserved ............................................................ 38
7.3.B Rate Discrimination Prohibited............................................................. 38
7.3.C Provisions Subject to the Cable Act....................................................... 39
7.4 Remedies for Franchise Violations........................................................ 39
7.4.A Notification.......................................................................................... .39
7.4.B Plan for Cure........................................................................................ 40
7.4.C Imposition of Liquidated Damages .............. ................. ........ ............. ~...40
7.4.D Contest of Violation............................................................................... 40
December 6, 2001 /3:00 PM
TABLE OF CONTENTS / Page iii
ATTACHMENT -'J
Page -5.... of 8.;l....
City of Woodburn Cable Franchise
7.4.E Opportunity to Be Heard.......... ...... ..... ........................................... ..... ..41
7.4.F Reduction of Liquidated Damages ................... ......... ....... ....... ...............41
7.4.G Nature of Remedies....................... ........................................................ 41
7.5 LIQUIDATED DAMAGES.................... .................................................. 42
7.5.A Amounts:. ............. ...... .................... ......................................................42
7.5.B Collection of Liquidated Damages. .. .......... ............................................42
7.5. C Recourse to Securities ..........................................................................43
7.6 Remedies Not Exclusive. ........ .............. ................................................43
7.7 Customer Service & Consumer Protection Standards ...........................43
7.7.A Customer Service and Telephone Responsiveness .................................43
7.7.B Service and Repair Calls. ............ ..................... ................ ................... ..44
7.7. C Disconnection....................................................................................... 45
7.7.D Credits Upon Outage.. ........ ..... ............. ......................................... ..... ..46
7.7.E Downgrade Charges.............................................................................. 46
7.7.F Billing Information Required................................................................. 46
7.7. G Information to Subscribers................................................................... 46
7.7.H Complaint Acknowledgment.................................................................. 47
7.7.I Complaint Resolution........................................................................... 48
8. GENERAL FINANCIAL AND INSURANCE PROVISIONS ............................. 49
8.1 Compensation .... ......... ........ ........ ........ .......... ................ .... ......... .........49
8.1.A Franchise Fee...................................................................................... .49
8.1.B Payment of Franchise Fees................................................................... 49
8.1.C Franchise Fees on Bundled Services .....................................................50
8.2 Faithful Performance Bond ..................................................................50
8.2.A Posting............... .................................................................................. 50
8.2.B Payment of Premiums ........................................................................... 50
8.2.C Notice of Termination.... ........ ........... ............ ... .............................. ..... ... 51
8.3 Construction Bond .............................................................................. 51
8.4 Security Fund............ ......... ....... ........ .......... ............................. ........... 51
8.5 Damages and Defense......... ....... ......... ......... .... ... ........ ..... .... ...... ... .......52
8.5.A General Indemnification........................................................................ 52
8.5.B Defense of the Franchise....................................................................... 52
8.6 Liability Insurance and Indemnification ............................................... 53
8.6.A Insurance Coverage.. ........................ .................................................... 53
8.6.B Minimums and Limits ............ ............................................................... 53
8.6.C Additional Insureds.............................................................................. 53
December 6, 2001 /3:00 PM
TABLE OF CONTENTS / Page iv
ATTACHMENT 11
Page~ of
City of Woodburn Cable Franchise
8.6.D Cancellation and Replacement.............................................................. 54
8.6.E Certificate of Insurance..... ..... ................. ..... .........................................54
8.6.F Grantor Held Harmless......................................................................... 54
9. RIGHTS RESERVED TO GRA.NTOR .........................................................55
9.1 Grantor's Purchase of the System........................................................ 55
9.1.A Continuation of Operations / Purchase at Fair Market Value................55
9.1.B Transfer of System to Others................................................................. 56
9.1.C Cable Act Requirements..... ............... .............. .....................................56
9.2 Eminent Domain.. ........... ........... .......... .......... .............. ........... ....... ..... 56
9.3 Right to Perform Franchise Fee Audit or Review................................... 56
9.4 Right of Inspection of Construction ...................................................... 57
9.5 Intervention......................................................................................... 57
9.6 Right to Require Removal of Property .... .......... ............. ........... ....... ......57
10. RIGHTS OF INDIVIDUALS PROTECTED ..................................................58
10.1 Discriminatory Practices Prohibited .....................................................58
10. LA Grantee Shall Not Unlawfully Discriminate ...........................................58
10.I.B Services to Disabled.............................................................................. 58
10.I.C Permitted Discounts ............ ............ ...... ............................................... 58
10.2 Privacy and Other Rights..................................................................... 58
10.3 Permission of Property Owner Required................................................ 59
10.4 Multiple Dwelling Units........................................................................ 59
11. TERMINATION AN'D EXPIRATION ...........................................................60
11.1 Revocation......... .................. ......... ............. ............. ... ........ ..... ... .......... 60
ll.l.A General................................................................................................. 60
11.1.B Conditions of Revocation........... ............................................................60
11.1. C Due Process.......................................................................................... 60
11.2 Receivership....... . ......... ......... .......... . . . ......... . . .......... . .......... . . ...... . . ...... . 61
11.3 Expiration. . ......... . ........ . ........ ........... . . .......... . . ......... . . . ... ...... . ....... . .. ..... 61
11.4 Continuity of Service Mandatory .......................................................... 61
12. OPERATION AN'D MAlNTENAN'CE ...........................................................63
12.1 Books and Records ........... ........ .............. ................ ......... .................... 63
12.2 Communications with Regulatory Agencies ..........................................63
December 6, 2001 /3:00 PM
TABLE OF CONTENTS / Page v
ATTACHMENT A
Page...2- of 8..-.<
City of Woodburn Cable Franchise
12.3 Reports. . . ....... .......... . . . ...... ... . ........... . . .... ... . . ..... .. . . . . . .. ... .. . . ... . ... . . .... .. . . ... 64
12.3.A Form of Reports................................. ..... ............ .................. ................64
12.3.B Annual Report... ........ ........................................................................... 65
12.3.C Additional Reports .... ............................................................................ 65
12.4 Safety .. .... ........ . ...... .... . . ......... . . . .......... . .. .. .... .... ... .... . . ... .. . .. . .. .. ... . . ....... . . 66
12.4.A Safety Standards. ....... ........ .... .......................................................... .... 66
12.4.B Adherence to National Electric Safety Code. ........ .............. ........... ......... 66
12.4.C Proper Maintenance of Equipment.... ...................... ..... ..... ........ ........ .... 66
13. MISCELLANEOUS PROVISIONS. ... ... ... ...... .................... ....... ........ ........ ... 67
13.1 Compliance with Laws ..... ........... ..... ........ ............................. ...............67
13. 2 Severability. . .. . . .. . . . . .. . . . .. . . . . .. .. . .. . . . . . . .. . .. . . . .. . .. . .. . . . . . . . . . .. . . . .. . . .. . . .. . .. . . . .. .. .. . . 67
13.3 Captions.... . ....... . ............ . . ......... . . ......... . ... ..... . . ... ... . . . . . . .. .. .. . ... .. .. . . .... ... . 67
13.4 No Recourse Against the Grantor......................................................... 67
13.5 Nonenforcement by Grantor .................................................................68
13.6 Force Majeure...................................................................................... 68
13. 7 Entire Agreement................................................................................. 68
13.8 Consent............................................................................................... 68
13.9 Notices and Time Limit for Grantee Communications........................... 68
13.10 Consistency of Franchise with Cable Act.............................................. 69
13.11 Franchise Review...... ........... ............. ........ .......... ............ ....... ........ ...... 69
13.12 Grantee Responsibility for Costs of Franchise Compliance.................... 69
13.13 Notice.................................................................................................. 69
13.14 Grantor Rights Upon Termination ........................................................ 70
13.15 No Waiver............................................................................................ 70
EXHIBIT A: origination points .. ...... ............ ...... ...... ......... .............. ........ ......... 71
EXHIBIT B: acceptance and Guarantee ...........................................................72
EXHIBIT C: price for work-incremental cost .................................................73
EXHIBIT D: I-Net sites for 2-way video, voice, data......................................... 75
December 6, 2001 /3:00 PM
TABLE OF CONTENTS / Page vi
ATTACHMENT A .
page-B- of ~
City of Woodburn Cable Franchise
1. PURPOSE AND INTENT
1.1 Intent
The City of Wood bum, Oregon (hereafter Grantor) is authorized to and by this
Franchise agreement does grant to DirectLink of Oregon, Inc. (hereafter
Grantee) a non-exclusive IO-year Franchise, revocable as provided herein, to
construct, operate and maintain a Cable System in the City, to provide Cable
Service, related Intemet services, and such other services as it must provide in
order to satisfy its obligation to provide an Institutional Network. This
Franchise does not authorize the provision of any service other than the
services specified above; or in any way relieve the Grantee of any obligation to
obtain any authorizations, licenses or Franchises to use the rights of way to
provide other services, or to comply with any requirements with respect to the
use of the rights of way for the provision of such services.
1.2 Purpose
The purpose of this Franchise agreement is to create a binding, enforceable
contract between Grantor and Grantee.
December 6, 2001 /3:00 PM
1 - PURPOSE AND INTENT / Page 1
ATTACHMENT A
Page ~ of ..s'~
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.
December 6, 2001 /3:00 PM
2 - DEFINITIONS / Page 2
ATTACHMENT IJ
Page --1Q..... of B:<
City of Woodburn Cable Franchise
2.3 "AddressabUity"
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.
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.
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
December 6, 2001 /3:00 PM
2 - DEFINITIONS / Page 3
ATTACHMENT ~:l...
Page -'-L of
City of Woodburn Cable Franchise
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.
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.
2.15 Financial Partner
means Avalon Equity Fund LP, a Delaware limited partnership; or Northwest
Capital Partners II LP, A Washington limited partnership; or General Electric
Capital Corporation, a Delaware corporation; 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
December 6, 2001 /3:00 PM
2. DEFINITIONS / Page 4
ATTACHMENT A
Page.L2... of 8.;(.
City of Woodburn Cable Franchise
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 Directlink of Oregon, Inc., and the lawful successors, transferees, or
assignees thereof.
2.19 "Grantor"
means the City of Woodburn, a political subdivision of the State of Oregon.
2.20 "Gross Receipts"
means Gross Revenues less any bad debts related to the operation of the
System authorized by this Franchise.
2.21 "Gross Revenues"
means all amounts earned by Grantee, any Affiliate of Grantee, or any entity
that constitutes a "cable operator" under the Cable Act definition, in whatever
form and from all sources, derived from the operation of Grantee's Cable System
to provide Cable Service within the Franchise area. "Gross Revenues" shall
include, without limitation, amounts for: all Cable Services, e.g., basic service,
expanded basic service, premium and pay-per-view services, online services
such as Internet access containing programming content, e.g., @Home or
RoadRunner (unless determined by Congress or the FCC not to be a Cable
Service); advertising, commissions on sales of goods or services by third parties
utilizing the Cable System to provide Cable Service in the Franchise Area (e.g.,
home shopping networks), installations, leasing, renting or selling of System
equipment or leasing of capacity to provide Cable Service within the Franchise
Area, and all other revenues derived from the operation of Grantee's Cable
System to provide Cable Service within the Franchise Area, regardless of
whether initially recorded to another entity and however characterized. Gross
Revenues shall not be net of any expenses.
Any sales, excise or other taxes or fees levied directly upon subscribers by a
local, state or federal government and collected by Grantee for direct pass-
through to such government shall not be included in Gross Revenues.
Franchise fees and copyright fees shall not be deducted from Gross Revenues.
December 6, 2001 /3:00 PM
2 - DEFINITIONSl Page 5
ATTACHMENT R~
Page 13- of .
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City of Woodburn Cable Franchise
Gross Revenues shall not be double counted. Revenues of both Grantee and an
Mfiliate and that would otherwise constitute Gross Revenues of both Grantee
and the Mfiliate under this provision, shall be counted only once for purposes of
determining Gross Revenues.
2.22 "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.
2.23 "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.
2.24 "Institutional Subscriber"
means a public agency, school or non-profit corporation receiving institutional
services on the institutional subscriber network.
2.25 "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.
2.26 "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.
December 6, 2001/3:00 PM
2 - DEFINITIONS / Page 6
ATTACHMENT -4--
page.L!:L- of 8 J
City of Woodburn Cable Franchise
2.27 "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.
2.28 "Person"
means an individual, proprietorship, partnership, association, joint stock
company, trust, corporation, or governmental entity.
2.29 "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.
2.30 "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.
2.31 "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, billings, statements of accounts, studies,
appraisals, analyses, contracts, agreements, charts, graphs, and photographs.
2.32 "Resident"
means any individual person residing within the Franchise area.
2.33 "Residential Service"
means services delivered on the residential subscriber network.
2.34 "Residential Subscriber"
means a subscriber who receives services on the Residential Network.
December 6, 2001 /3:00 PM
2 - DEFINITIONS / Page 7
ATTACHMENT A
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City of Woodburn Cable Franchise
2.35 "Residential Network"
means a Cable System designed principally for the delivery of Cable Services to
individual dwelling units.
2.36 "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.
2.37 "Section"
means any section, subsection or provision of this Franchise agreement, unless
otherwise made clear by the context.
2.38 "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.
2.39 "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.
2.40 "Year'
means a full twelve-month calendar year, unless designated otherwise, such as
a II fiscal year" .
December 6, 2001 /3:00 PM
2. DEFINITIONS / Page 8
ATTACHMENT A
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City of Woodburn Cable Franchise
3. GRANT OF FRANCHISE
3.1 Grant
3.1.A
Grant of Franchise
Grantor hereby grants to the Grantee a non-exclusive, revocable
Franchise for a 1 Q-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, as
that term is defmed in 47 U.S.C. Sec. 522(6) as amended, along with related
Internet services, and to provide I-Net Capability for voice, video, and data
as described in Section 6.5. 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.
3.1.B
Police 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.C Compliance 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.D No 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:
December 6, 2001 /3:00 PM
3 - GRANT OF FRANCHISEl Page 9
ATTACHMENT~
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City of Woodburn Cable Franchise
1) Any other permit or authorization required for the privilege of
transacting and carrying on a business within the City that
may 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 V.S.C. ~ 541(a).
3.2 Use 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.
3.3 Duration 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 January 2,2002 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.
December 6, 2001 /3:00 PM
3 - GRANT OF FRANCHISE / Page 10
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City of Woodburn Cable Franchise
3.4 Franchise 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 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.
3.5 Franchise Non-Transferable
3.S.A
No 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.S.B
Notification
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.
December 6, 2001 /3:00 PM
3 - GRANT OF FRANCHISE I Page 11
ATTACHMENT A.
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City of Woodburn Cable Franchise
3.5.C Request 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.D Cable 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 fmal written
decision on the request within one-hundred twenty (120) days of the
request, provided it 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.E Filing 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.F Grantor 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 fmandal 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.G Approval 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.
December 6, 2001 /3:00 PM
3 - GRAm OF FRANCHISE / Page 12
ATTACHMENT A
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City of Woodburn Cable Franchise
3.5.H Exceptions
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 [mandaI 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 less than 5% of common
stock or other equity that do not effect a change in actual working
control of Grantee.
3.6 Franchise Acceptance
3.6.A Filing
The Grantee, on or before passage of this Franchise agreement by the
City Council, shall execute and file in the office of the City Administrator
a written acceptance executed by Grantee, in the form attached hereto as
Exhibit B.
3.6.B
Failure to File
In the event Grantee fails to file the acceptance as required herein, then
this Franchise shall be null and void.
December 6, 2001/3:00 PM
3 - GRANT OF FRANCffiSE I Page 13
ATTACHMENT A
Page~ of Ba
City of Woodburn Cable Franchise
4. CONSTRUCTION AND SERVICE REQUIREMENTS
4.1 General
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.
4.2 System Upgrade and Construction Schedule
4.2.A System Upgrade Required
Grantee shall rebuild or modify its Cable System to upgrade the System
to a minimum practical capacity of 78 downstream video channels
throughout the Franchise area. The System shall be a broadband
system, and shall have a minimum activated capacity of 550 MHz in the
feeder portion of the system, with higher activated capacity in the trunk
portion of the system, and shall be of hybrid fiber coaxial design with
fiber mnning to neighborhood nodes, with no more than 800 homes
passed served by each node upon initial completion of the upgrade and
the commencement of service. All cable and equipment used in the
modification of the System shall be new, and generally regarded in the
cable industry as being of highest quality; however, the upgraded System
may include plant and equipment which were in place in the System
prior to the upgrade. The System, as upgraded, shall have the capacity
to provide pay-per-view and other services requiring addressability (i.e.,
the capability to add or drop programming without a site visit). The
System shall throughout the Franchise term include bi-directional
capability, permitting activation of the System for the delivery of such
services as high speed Internet access or Video on Demand without
altering the general spacing of amplifiers in the System, or otherwise
performing major System upgrade work.
4.2.B
Construction Plan and Schedule
A construction plan and schedule, which shall be in accordance with the
requirements of this Franchise, shall be submitted to the Grantor no
later than 60 days prior to the commencement of construction of the
System upgrade described in (A) above (upgrade). The plan and
schedule shall specify the general routes of fiber and of coaxial cable, the
location of nodes, the location of all existing cable and equipment to be
replaced, and the sequence and time frames for all significant portions of
the construction. Prior to the commencing construction, Grantee shall
meet with Grantor upon request to provide any requested clarification of
the construction plan and schedule.
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ATTACHMENT A
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City of Woodburn Cable Franchise
Grantee shall commence construction of the System upgrade above
within six (6) months after the effective date of this Franchise, and shall
complete upgrade construction and all activation procedures within
twenty-four (24) months of the effective date of this Franchise.
For purposes of this Franchise agreement, "commencement of
construction" shall mean the beginning of installation of any part of the
System upgrade, including, but not limited to, the construction of any
facility, building or structure, or the stringing of any strand wire or the
laying of any conduit, or the installation of any active or passive
electronic equipment to facilitate the required System upgrade.
At the request of the Grantor, Grantee shall meet with the Grantor
quarterly or, in emergency or other special circumstances at any time,
during the construction period to report on construction progress and
the fulfillment of the construction schedule. The Grantor acknowledges
that there may be acts of nature or other events such as delays in the
permitting process which are fully outside the control of Grantee and
may prevent the timely start or completion of construction. If such
events occur, Grantee may explain them to the Grantor, and request a
reasonable extension of the construction schedule, and the Grantor shall
not unreasonably refuse such extension.
4.3 Right 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.
4.4 Provision of Residential Service
4.4.A
In General
It is the Grantor's general policy that all residences in the Grantee's
Franchise Area shoutd 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.
December 6, 2001 /3:00 PM4 - CONSTRUCTION & SERVICE REQUIREMENTS I Page 15
ATTACHMENT A
Page~ of 8a
City of Woodburn Cable Franchise
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 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.B Low-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 equal5/30ths 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
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City of Woodburn Cable Franchise
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 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.C
Commercial 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.D Newly 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
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City of Woodburn Cable Franchise
as provided for in Section 4.4.A-C unless otherwise authorized by the
City.
4.4.E
New 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.
4.4.F
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
4.5 Erection 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.
4.6 Trimming 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 omamental 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.
4.7 Repair 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
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ATTACHMENT A
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City of Woodburn Cable Franchise
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 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.
4.8 Construction 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
4.9 Reservations 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 impr<>vement, 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 ~e expense of the Grantee. In all
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City of Woodburn Cable Franchise
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.
4.10 Street 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 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.
4.11 Movement 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.
4.12 Undergrounding
4.12.A Underground 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
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ATTACHMENT A
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City of Woodburn Cable Franchise
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).
4.12.8 Use 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.
4.13 Location 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
4.14 Emergency
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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ATTACHMENT A
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City of Woodburn Cable Franchise
5. SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS
5.1 System Configuration
The Cable System shall consist, at a minimum, of a Residential Network and, to
the extent provided for under the terms of this Franchise, an Institutional
Network. As upgraded in accordance with the requirements of this Franchise,
the System shall have bi-directional communications capability and
addressability, be capable of passing a minimum of 550 MHz in all portions of
the system and be designed in a hybrid fiber coaxial configuration with no more
than 800 homes served from any fiber node, at the time of the initial completion
of the upgrade and commencement of service.
5.2 Channel Capacity
The residential Cable System shall be upgraded, in accordance with the
requirements of this Franchise, to provide the capability of delivering a
minimum of 78 video Channels outbound.
5.3 Emergency 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. Emergency alert capability as required in
this Section shall be operational throughout the term of the Franchise,
beginning with completion of the System upgrade required by this Franchise.
5.4 Standby Power
Beginning with the completion of the System upgrade required by this
Franchise, 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
5.5 Parental 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.
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5.6 Technical 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.
5.7 Performance Testing
5.7.A Schedules
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 tests, and copies of written test reports shall be made available
to Grantor upon request.
5.7.B Reporting
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.
5.7.C Inspection
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.
5.7.D FCC 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
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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.
5.7.E Remedy 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.
December 6, 2001/3:00 PMS - SYSTEM DESIGN & PERFORMANCE REQUIREMENTS / Page 24
ATTACHMENT A
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City of Woodburn Cable Franchise
6. SERVICES AND PROGRAMMING
6.1 Programming 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.
6.2 Changes 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.
6.3 Leased 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.
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ATTACHMENT A
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City of Woodburn Cable Franchise
6.4 Community Access and Local Programming
6.4.A Management 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 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.B Channel Capacity and Use
1) Channels used for PEG Access purposes shall be administered
by the Grantor or its designee.
2) Downstream Channels
a) Upon the date the upgrade required by Section 4 is
substantially completed, Grantee shall provide a
minimum of 3 Access Channels for PEG use. Each
Access Channel if analog shall be a minimum of 6Mhz,
subject to (8)(5) & (8)(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 3 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 3 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
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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 p.m. for 10 consecutive
weeks. 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 life of the Franchise.
4) Grantee may be required to deliver the PEG Channels to
Subscribers in an analog format unless and until all other
Channels on the System are delivered in a digital format. At
such time, Grantee shall provide six (6) Access Channels in
digital form. 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) 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.
6) 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 other channels. Designated Access Providers
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shall be responsible for the costs associated with specific
program listings for the PEG Channels on Cable System
program guides and menus.
7) Upstream Channels
a) All return lines for upstream PEG Access transmissions
which are in place as of August 9, 2001 shall be maintained
in working order throughout the term of the Franchise.
Beginning with the completion of the upgrade construction
and 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
analog 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.C Financial Support for PEG Access
1) The Grantee shall provide the following financial support for
PEG Access:
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City of Woodburn Cable Franchise
a. Forty Thousand Dollars ($40,000) within thirty (30) days
following the effective date of the Franchise, for
necessary major equipment purchase, replacement and
associated services.
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 and
associated services.
c. One Thousand Five Hundred Dollars ($1,500) per month
for production and related services.
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.
4) Any PEG Access support amounts owing pursuant to this
Franchise which remain unpaid more than 25 days after the
date the payment is due shall be delinquent and shall
thereafter accrue interest at 2 percent above the highest prime
lending rate published by the Wall Street Journal during the
period the payment is overdue, whichever is greater.
6.4.D Studio Improvement
Grantee shall continue to provide the studio space and facilities for PEG
Access existing as of August 9, 2001. In addition, Grantee shall provide
86 additional square feet of space, and provide a separate, fully walled-in
space to house an effective control room separate from the studio space
proper.
6.4.E PEG 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.
December 6, 2001/3:00 PM
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ATTACHMENT~
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City of Woodburn Cable Franchise
6.4.F Technical 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.
6.4.0 Change 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.H Local News Operation
The Grantee shall, within thirty (30) days following a request by the
Grantor, enter into good faith discussions with WCAT to consider
establishing and funding a news operation which would produce five to
ten minutes of local news five days per week for distribution on a cable
channel. The Grantor and Grantee agree that such an operation may
require the employment of up to three full-time individuals, and may
involve the sale of commercial advertising for support to the operation.
The parties acknowledge that this provision does not impose any
December 6, 2001 /3:00 PM
6. SERVICES & PROGRAMMING IPage 30
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City of Woodburn Cable Franchise
obligation on Grantee to agree to establish, fund or otherwise assist in
the production of any programming.
6.4.1 Non-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.
6.4.J
Interconnection 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, subject to the credit described
in Section 6.6. Incremental Cost shall be determined in
accordance with Exhibit C.
2) 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 subject to the credit
described in Section 6.6. 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
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6. SERVICES & PROGRAMMING / Page 31
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City of Woodburn Cable Franchise
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.
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.
6.5 Institutional Network
6.5.A Obligation to Construct
In addition to the Residential Network capacity of the System established
in the System upgrade required under this Franchise, the Grantee shall,
upon the request of the Grantor, at Incremental Cost as described in
Exhibit C subject to the credit described in Section 6.6, provide System
plant, capacity, or services, or a combination thereof, according to a
design and functionality to be specified by the Grantor, to be 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.B I-Net Design, Functionality and Management
At Incremental Cost as defined in Exhibit C, subject to the credit
described in Section 6.6, to be paid by the Grantor, the Grantor may
require the Grantee to install: 1) up to two (2) pair of fiber for I-Net use to
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J\TTACHMENT L
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City of Woodburn Cable Franchise
each I-Net site listed in Exhibit D; and 2) such electronics, labor and
services as may be necessary to make the Grantor's I-Net functional. If
Grantor elects to pursue the construction of an I-Net in accordance with
the terms of this Franchise, Grantee agrees that the Grantor may utilize
fibers within the Grantee's fiber sheath as part of Grantee's planned
System upgrade, in order to maximize the cost savings to be realized
through paying Incremental Costs only. 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.C Cost and Method of Payment
The cost to the Grantor for the construction of the I-Net shall be no more
than the Incremental Cost of I-Net construction, subject to the credit
described in Section 6.6, and there shall be no charge by the Grantee to
the Grantor or other authorized user for the use of the I-Net, other than
maintenance. Incremental Cost shall be determined in accordance with
Exhibit C.
6.5.D
Process for Integrating I-Net with System Upgrade and
Future Construction.
1) The I-Net capacity to any location identified in Exhibit D shall
be provided during the period of the System upgrade required
by this Franchise. Any additional sites shall be constructed
within 18 months following a request by the Grantor that the
Grantee construct or provide an I-Net connection to that
location. In no event shall Grantee be required to provide 1-
Net capacity prior to completion of its System upgrade
required under this Franchise. The Grantee shall cooperate
with the Grantor to ensure the most cost-effective
construction of the I-Net.
2) In order to ensure that the Grantor may take full advantage of
the cost savings to be realized from constructing the I-Net in
conjunction with any Grantee upgrade construction, within 60
days of the effective date of this Franchise, Grantor shall
notify Grantee if it desires to have an I-Net constructed and if
December 6, 2001 /3:00 PM
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December 6, 2001 /3:00 PM
ATTACHMENT 0 A
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City of Woodburn Cable Franchise
so provide a list of sites for Exhibit D to be constructed; within
30 days of the effective date of this Franchise, Grantee shall
notify the Grantor of any plant construction scheduled to
occur within the next six months, and in a timely manner
any construction scheduled during the rest of the upgrade
period, near any of the locations listed in Exhibit D.
a) If the Grantor is requesting Grantee to construct an 1-
Net Grantee shall enter into discussions with the
Grantor to determine what particular I-Net installations,
if any, the Grantor desires to have served as part of the
construction. Once the locations are identified, the
Grantee shall provide cost estimates to the Grantor
within 30 days, and shall if the Grantor so directs,
proceed with construction of the I-Net. The Grantor has
30 days from receipt of cost estimates to approve the
costs and authorize construction of the I-Net. If the
Grantee fails to give the Grantor timely notice that it
intends plant construction near the locations listed in
Exhibit D, and the Grantor later elects to have Grantee
provide I-Net connections to locations that could have
been served in conjunction with Grantee construction
carried out for its own purposes, then the Grantee shall
provide the I-Net connections at a cost to the Grantor
which does not exceed what would have been the
Incremental Cost of providing the I-Net connections,
subject to the credit described in Section 6.6, had it
been done along with Grantee's construction for its own
purposes. Grantor and Grantee agree that if payment
for I-Net facilities is not made by the Grantor within two
years from the Grantor's approval of costs and
authorization for construction, then Grantee (i) may
deduct such payment from franchise fees otherwise due
and owing to Grantor; or, at Grantee's option, (ii)
Grantee may notify Grantor that Grantee is no longer
obligated for further I-Net construction for the Grantor,
and all rights to the useofI-Net facilities constructed by
the Grantee for the Grantor but not paid for shall revert
to the Grantee.
b) Subsequent to the completion of the System upgrade
required under Section 4 of this Franchise, Grantee
shall notify the Grantor of any plans for additional plant
construction near the locations in Exhibit D, 90 days in
advance. If the Grantor notifies the Grantee within 30
days that it desires to have an I-Net constructed by the
6 - SERVICES & PROGRAMMING I Page 34
6.5.E
6.5.F
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City of Woodburn Cable Franchise
Grantee, then the same requirements shall apply as are
set forth in the previous paragraph following provision
for notification by the Grantor to Grantee that it desires
to have Grantee construct an I-Net. Costs of
construction shall not exceed the estimate provided by
Grantee.
Interconnection 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, subject to the credit
described in Section 6.6. 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 the franchise area, Grantee shall, if legally and
technically possible, perform this construction as requested,
during the upgrade period or 6 months following Grantor's
request whichever is later, provided Grantor pays for all
Incremental Costs therefor, subject to the credit described in
Section 6.6. 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 Grantor'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.
Limits 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
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City of Woodburn Cable Franchise
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:
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
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any use is commercial and for profit, such use shall not be
allowed without the written permission of Grantee.
4) The I-Net is a private communications network governed by
this 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.
6.5.G No 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.
6.6 Credit Against Incremental Costs
Solely for the purposes of construction and interconnection of the I-Net
pursuant to Section 6.5, and interconnection of PEG Access channels and
programming pursuant to Section 6.4.J, the Grantee shall provide to Grantor
an aggregate credit of Fifty Thousand Dollars ($50,000) against Grantor's
Incremental Costs, which may be applied in whole or in part anytime during the
term of the Franchise, in amounts and against projects identified by the
Grantor.
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7. FRANCHISE REGULATION AND CUSTOMER SERVICE
STANDARDS
7.1 Intent
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.
7.2 Areas 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
7.3 Rate Regulation
7.3.A Rate 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.B
Rate 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
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subscribers, or from temporarily reducing or waiving rates and charges
in connection with promotional campaigns.
7.3.C Provisions Subject to the Cable Act
The provisions of this Section 7.3 shall be subject to the provisions of 47
V.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.
7.4 Remedies for Franchise Violations
7.4.A
Notification
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
7.4.8 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.
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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 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.B
Plan 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.C Imposition 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 7.4.8 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.D
Contest 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
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has occurred, and if a violation is found to have occurred, what remedies
under this Section 7 shall be applied.
7.4.E Opportunity 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. Mter
the hearing is closed, Grantor shall issue written fmdings 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.F Reduction 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:
I) 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.G
Nature 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;
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4) Pursue any other legal or equitable remedy available under
this Franchise or any applicable law
7.5 LIQUIDATED DAMAGES
7.5.A
Amounts:
Because Grantor'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 Grantor 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 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 upgrade the Cable System as provided for in this
Franchise: Two Hundred Fifty Dollars ($250) per day for the
first 365 days of violation, and Five Hundred Dollars ($500)
per day thereafter.
5) 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.
6) 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.B Collection of Liquidated Damages.
The collection of liquidated damages by the Grantor shall in no respect
affect:
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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.C
Recourse 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.
7.6 Remedies Not Exclusive
The Grantor has the right to apply anyone 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.
7.7 Customer Service & Consumer Protection Standards
The following customer service and consumer protection standards shall apply.
Nothing in this Section sha11limit the rights of the Grantor to establish
additional or different standards in accordance with federa1law and
regulations.
7.7.A Customer Service and Telephone Responsiveness
I) 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.
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4) No later than the completion of the System upgrade required
in this Franchise, the Grantee shall maintain and make
available upon request statistical data to verify, on average
a) Sufficient customer service staff and telephone line
capacity to handle normal call volume with a minimum
of delay to customers. Under normal operating
conditions, the customer will receive a busy signal less
than 3% of the time. Grantee shall be excused from
providing the data relative to meeting this busy signal
standard if the relevant data is practically unable to
obtain through a request for it from the appropriate
telephone service provider.
b) Under normal operating conditions, telephone answer
time by a customer representative, including wait time,
shall not exceed thirty (30) seconds once the connection
is made. These standards shall be met no less than
ninety (90) percent of the time under normal operating
conditions, measured on a quarterly basis.
7.7.B Service 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 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.
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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.C
Disconnection
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.
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
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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.D Credits 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.E Downgrade Charges
Grantee may not impose Downgrade Charges on Subscribers, except as
allowed by applicable law.
7.7.F Billing 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.G
Information 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;
c) the Grantee's policies and procedures by which
complaints or inquiries of any nature will be addressed;
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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.H
Complaint 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 apply to complaints
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submitted for processing by a regulatory agency other than the
Grantor, such as the FCC.
7.7.1 Complaint 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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8. GENERAL FINANCIAL AND INSURANCE PROVISIONS
8.1 Compensation
S.1.A Franchise Fee
1) As compensation for the Franchise to be granted, and in
consideration of permission to use the streets and public ways
of the Grantor for the construction, operation, and
maintenance of a Cable System within the Franchise area,
and to defray the costs of Franchise regulation, the Grantee
shall pay to Grantor an amount equal to five percent (5%) of
the gross receipts generated in any manner through the
operation of the Cable System to provide Cable Services under
this Franchise. In the event any law or valid rule or regulation
applicable to this Franchise limits Franchise fees below the
five percent (5%) of Gross Receipts required herein, the
Grantee agrees to and shall pay the maximum permissible
amount and, if such law or valid rule or regulation is later
repealed or amended to allow a higher permissible amount,
then Grantee shall pay the higher amount up to the maximum
allowable by law, not to exceed five percent (5%).
2) Any bad debts or other accrued amounts deducted from Gross
Revenues in the calculation of Gross Receipts shall be
included in Gross Receipts at such time as they are actually
collected.
3) The Grantee shall, upon request by the Grantor, supply to the
Grantor an up-to-date list of all entities receiving Gross
Revenues as such revenues ate defmed in this Franchise.
8.1.B Payment 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 oe construed as a release of any
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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.C
Franchise 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 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.
8.2 Faithful Performance Bond
8.2.A Posting
Upon or before the effective date of this Franchise, the Grantee shall
fumish 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 Three Hundred Thousand Dollars ($300,000.00),
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; except
that after five years from the effective date of this Franchise Grantee may
request a review by the Grantor for a reduction to a bond value of One
Hundred Fifty Thousand Dollars ($150,000) which request shall not be
unreasonably denied provided Grantee has acted in good faith in
accordance with this Franchise.
8.2.B Payment 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.
December 6, 2001/3:00 PM8 - GENERAL FINANCIAL & INSURANCE PROVISIONS / Page SO
ATTACHMENT A
Pago ~ of ~a-.
City of Woodburn Cable Franchise
8.2.C
Notice 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.
8.3 Construction Bond
During the entire period of the System upgrade required by this Franchise,
Grantee shall post a faithful performance bond or irrevocable letter of credit,
running to the Grantor, with good and sufficient surety approved by the
Grantor, in the sum of One Hundred Thousand Dollars ($100,000). The bond
or letter of credit shall be conditioned that the Grantee shall well and truly
observe, fulfill and perform each term and condition under Section 4 and
Section 6.5. 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 upgrade construction work. The bond or letter
of credit shall provide that it may be terminated upon final written approval of
Grantee's upgrade construction work in or under the Streets by the Grantor.
Upon such approval, the Grantor agrees to sign all documents necessary to
release the bond in accordance with the terms of this Section. During the
duration of the upgrade construction work, Grantee shall file with the Grantor a
copy of the bond or letter of credit, along with written evidence of the required
premiums. The bond or letter of credit shall be subject to the approval of the
City Attorney as to its adequacy. Following the period of the System upgrade
required by this Franchise, the Grantee shall be subject to such construction
bond requirements as may be imposed by the Grantor as part of the process of
obtaining appropriate permits for particular projects.
8.4 Security Fund
Upon or before the effective date of this Franchise, Grantee shall establish a
cash security fund of Twenty-Five Thousand Dollars ($25,000) under the
control of the Grantor, or provide the Grantor an irrevocable letter of credit in
the amount of Twenty-Five Thousand Dollars ($25,000), to secure the payment
of fees owed, to secure any other performance promised in this Franchise, and
to pay any taxes, fees or liens owed to the Grantor. The letter of credit shall be
in a form and with an institution acceptable to the Grantor and in a formFacceptable to the City Attorney. Should the Grantor draw upon the cash
December 6, 2001/3:00 PM8 - GENERAL FINANCIAL & INSURANCE PROVISIONS / Page 51
ATTACHMENT A
Pago~ of B..:J....
City of Woodburn Cable Franchise
security fund or letter of credit, it shall promptly notify the Grantee, and the
Grantee shall promptly restore the fund or the letter of credit to the full-
required amount. However, prior to any fund attachment, Grantee shall be
provided with notice of the amount owed, the reason for the amount owed, and
be given a reasonable opportunity to make the required payment, which shall
be no less than 30-days. The minimum 30-day period shall be calculated from
the date Grantee receives the notice of the required payment.
8.5 Damages and Defense
8.S.A General 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.S.B
Defense 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
December 6, 2001/3:00 PM8 - GENERAL FINANCIAL & INSURANCE PROVISIONS / Page S2
ATTACHMENT -d.-...
Pago..J;;;f.L, of <5.:J..... _
City of Woodburn Cable Franchise
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
Franchise; or (5) accepted terms or conditions in the Franchise awarded to
Grantee which violate federal or state laws.
8.6 Liability Insurance and Indemnification
8.6.A Insurance 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:
8.6.B
Minimums 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.
8.6.C
Additional 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
December 6, 2001 /3:00 PM8 - GENERAL FINANCIAL & INSURANCE PROVISIONS / Page 53
ATTACHMENT A
pago Jz.L of 8..:.L
City of Woodburn Cable Franchise
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.
8.6.D Cancellation and Replacement
The insurance shall provide that the insurance shall not be canceled or
materially altered so as to be out of compliance with the requirements of
this Section 8.6 without thirty (30) days written notice first being given to
the Grantee and the Grantor. 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.
8.6.E
Certificate 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 apd contractors protective coverage.
8.6.F
Grantor 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.
December 6, 2001 /3:00 PM8 - GENERAL FINANCIAL & INSURANCE PROVISIONS / Page 54
ATTACHMENT A
?tlgo..k~ of 8.)...
City of Woodburn Cable Franchise
9. RIGHTS RESERVED TO GRANTOR
9.1 Grantor's Purchase of the System
9.1.A Continuation of Operations I 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.
December 6, 2001 /3:00 PM
9 - RIGHTS RESERVED TO GRANTOR / Page 55
ATTAC~~ENT A .-
Page' of,q ~ ..
City of Woodburn Cable Franchise
9.1.B
Transfer 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 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.C Cable 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.
9.2 Eminent Domain
Nothing in this Franchise is intended to expand or restrict the Grantor's lawful
condemnation authority.
9.3 Right 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
December 6, 2001 /3:00 PM
9 - RIGHTS RESERVED TO GRANTOR I Page 56
ATTAC.~HME. NT zf!-
PAQO~ of b
City of Woodburn Cable Franchise
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.
9.4 Right 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 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.
9.5 Intervention
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
9.6 Right 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.
December 6, 2001 /3:00 PM
9 - RIGHTS RESERVED TO GRANTOR / Page S7
ATTACHMENT A
Pago~ of: R:;L
City of Woodburn Cable Franchise
10. RIGHTS OF INDIVIDUALS PROTECTED
10.1 Discriminatory Practices Prohibited
lO.1.A Grantee 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.
lO.loB Services 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.
lO.1.C Permitted 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.
10.2 Privacy 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
December 6, 2001 /3:00 PM
10 - RIGHTS OF INDIVIDUALS PROTECTED I Page 58
ATTACHMENT A.. ...
Page ..kk.~ of ~~<2-
City of Woodburn Cable Franchise
company's collection and use of personally identifiable information, and other
issues involving 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.
10.3 Permission 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.
10.4 Multiple 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.
December 6, 2001 /3:00 PM
10 - RIGHTS OF INDIVIDUALS PROTECTED / Page 59
ATTACH~ENT b'i
Pago~ of -_ -
City of Woodburn Cable Franchise
11. TERMINATION AND EXPIRATION
11.1 Revocation
11.1.A General
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.I.B Conditions of Revocation
The grounds for which the Grantor may declare forfeiture or revoke the
Franchise are the following:
I) 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.C Due 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
December 6, 2001 /3:00 PM
11 - TERMINATION & EXPIRATION/Page 60
ATTACHMENT A
Pago~ at _ '5J-
City of Woodburn Cable Franchise
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 proceeding as is appropriate in a
court of competent jurisdiction to determine whether the Grantor
properly has declared a forfeiture.
11.2 Receivership
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.
11.3 Expiration
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.
11.4 Continuity 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
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11 - TERMINATION & EXPIRATION/Page 61
ATTACHMENT A
Pago J...9... of _8 Q2..
City of Woodburn Cable Franchise
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.
December 6, 2001 /3:00 PM
11 - TERMINATION & EXPIRATION/Page 62
ATTAC~ENT A
Page of 8.;i..
City of Woodburn Cable Franchise
12. OPERATION AND MAINTENANCE
12.1 Books 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.
12.2 Communications 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
December 6, 2001 /3:00 PM
12 - OPERATION & MAINTENANCE / Page 63
ATTACHMENT A
Plgo...:1L of -.6'~
City of Woodburn Cable Franchise
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 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.
12.3 Reports
12.3.A Form 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
December 6, 2001 /3:00 PM
12 - OPERATION & MAINTENANCE I Page 64
ATTACHMENT (1
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City of Woodburn Cable Franchise
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 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.B Annual 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.C Additional 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
December 6, 2001 /3:00 PM
12 - OPERATION & MAINTENANCE / Page 65
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City of Woodburn Cable Franchise
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.
12.4 Safety
12.4.A Safety 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.B Adherence 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.C Proper 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.
December 6, 2001 /3:00 PM
12 - OPERATION & MAINTENANCE / Page 66
ATTACHMENT :t
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City of Woodburn Cable Franchise
13. MISCELLANEOUS PROVISIONS
13.1 Compliance 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.
13.2 Severability
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.
13.3 Captions
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.
13.4 No Recourse Against the Grantor
Grantee's recourse against the City of Wood bum, 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.
December 6, 2001 /3:00 PM
13 - MISCELLANEOUS PROVISIONS / Page 67
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City of Woodburn Cable Franchise
13.5 Nonenforcement 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.
13.6 Force 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.
13.7 Entire 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.
13.8 Consent
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.
13.9 Notices and Time Limit for Grantee Communications
All communications with the Grantor by the Grantee refeqed 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.
December 6, 2001 /3:00 PM
13 - MISCELL4NEOUS PROVISIONS / Page 68
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City of Woodburn Cable Franchise
13.10
Consistency 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.
13.11
Franchise 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.
13.12 Grantee 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.
13.13
Notice
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
December 6, 2001 /3:00 PM 13 - MISCELLANEOUS PROVISIONS / Page 69
ATTACHMENT (l
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City of Woodburn Cable Franchise
If to the Grantee: Richard Ares, President
DirectLink of Oregon, Inc.
P.O. Box 850
Canby, Oregon 97013
13.14 Grantor 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
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.
13.15
No 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.
December 6, 2001 /3:00 PM
13 - MISCELLANEOUS PROVISIONS / Page 70
EXHIBIT A: ORIGINATION POINTS
WCAT Studio and Master Control Site
City Hall
Woodburn High School
Fire District
French Prairie
Woodburn Public Library
Community Center (planned)
Police Facility or City Hall (Planned)
December 6, 2001 /3:00 PM
ATTACHMENT 4-
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City of Woodburn Cable Franchise
Exhibit A / Page 71
ATTAC~~ENT~
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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 DirectLink of
Oregon, Inc, (the "Grantee") hereby accepts the terms and provisions of Ordinance No.
, passed by the City Council on ,2000 (the Franchise) granting
a Franchise for ten (10) years to DirectLink or Oregon, Inc. The Grantee agrees to
abide by each and every term of the Franchise.
Direct Link of Oregon, Inc.
BY
TITLE
DATE
The undersigned guarantees the faithful performance of each and every term of this
Franchise by the Grantee.
[Guarantor]
BY
TITLE
DATE
December 6, 2001 /3:00 PM
Exhibit B / Page 72
ATTACHMENT A
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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 ofI-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
1- N et/ 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;
December 6, 2001 /3:00 PM
Exhibit D / Page 73
ATTACHMENT A
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City of Woodburn Cable Franchise
2.9. Losses, expenses, and cost of reconstructing any work destroyed or
damaged, 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.
December 6, 2001 /3:00 PM
E.."(hibit D / Page 74
ATTACHMENT -Lt
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City of Woodburn Cable Franchise
EXHIBIT D: I-NET SITES FOR 2-WAY VIDEO, VOICE, DATA
[To be provided within 60 days of the effective date of the Franchise]
December 6, 2001 /3:00 PM
Exhibit F / Page 75