HomeMy WebLinkAbout3961.RDTNAN.E No. Sebl
AN ORDINANCE of the City Council of theCity of Kent, Washington, approving a cablefranchise agreement with Goldfinch
Communications, L. L.C.
RECITALS
A. The City is a franchising authority within the meaning of the
Communications Act,47 U.S.C. S 522(10).
B. Cable services are currently being provided within the City by
an incumbent cable services provider.
C. Goldfinch Communications, L.L.C. ("Applicant',) has made
application to the City of Kent for a cable franchise to construct, install,
maintain, repair, and operate a cable communications system using a fiber
to the home network and is a competitive franchise applicant as that term
is defined at 47 C.F.R. g 76.4L.
D' Applicant represents that it has the legal, technical, and
financial qualifications to provide the Cable Services authorized herein;
and
1
Ca ble Fra nch ise Ag reement Authorized
with Goldfinch Communications, LLC
E. Based on representations and information provided by
Applicant, and in response to its request for the grant of a franchise, the
City Council has determined that the grant of a nonexclusive franchise, on
the terms and conditions set forth in the franchise agreement and subject
to applicable law, are consistent with the public interest.
F. The City is authorized pursuant to RCW 354.47.040 to grant
nonexclusive Franchises within the boundaries of the City.
NOW THEREFORE, THE CTTY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
sEcrroM 7, - Adoption The cable franchise agreement between
the city of Kent and Goldfinch, a copy of which is attached and
incorporated as Exhibit "4", is hereby granted, and the appropriate city
officials are hereby authorized to execute the same on behalf of the City
upon acceptance thereof by the Applicant in accordance with the terms
and conditions set forth therein.
SECTION 2, Severability. If any one or more section,
subsections, or sentences of this ordinance are held to be unconstitutional
or invalid, such decision shall not affect the validity of the remaining
portion of this ordinance and the same shall remain in full force and effect,
SECTION 3, - Corrections by City Clerk or Code Reviser. Upon
approval of the city Attorney, the City clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; references to other local, state or federal laws,
codes, rules, or regulations; or ordinance numbering and
section/subsection nu mbering.
2
Ca ble Franch ise Ag reement Authorized
with Goldfinch Communications, LLC
SUZ
SECTION 4, - Effective Date. This ordinance shall take effect and
be in force ninety (90) days from and after its passage. However, as
provided in KCC 7.L2.120, the franchise granted by this ordinance shall
not take effect until the Applicant has filed a written acceptance within
sixty (60) days following the effective date of this ordinance. All costs
incurred by the City to develop and negotiate the franchise granted by this
ordinance shall be due on the date of Applicant's written acceptance of the
franchise. Should the Applicant fail to timely file its written acceptance of
this franchise, the Applicant will be deemed to have rejected and
repudiated the franchise and the franchise will be voidable by the City.
KE, MAYOR
ATTEST:
BRENDA JACOBER,CLERK
APPROVED AS TO FORM:
BRU ER, CITY ATTORNEY
3
Ca ble Fra nch ise Ag reement Authorized
with Goldfinch Communications, LLC
PASSED | /5 day of
APPRoVE o, /5 day of
PUBLISHEo: /l day of
2010.
2010.
2010.
I hereby certify that this is a true copy of Ordinance No. 3?b f
passed by the City Council of the City of Kent, Washington, and approved
by the Mayor of the City of Kent as hereon indicated.
EAL)
BRENDA JACOB CITY CLERK
P: \Clvll\Ordinance\Goldfinch-AuthorlzeFranchlseAgreement.dod
4
Ca ble Fra nchise Ag reement Authorized
with Goldfinch Communications, LLC
EXHIBIT A
Goldfinch Communications, L.L.C. Cable Franchise Agreement
FRANCHISE AGREEMENT
BY AND BETWEEN
THE CITY OF KENT AND
GOLDFINCH COMMUNICATIONS, LLC
THIS FRANCHISE AGREEMENT (the "Franchise"), is made by and between
the CITY OF KENT, a municipal corporation, operating under the laws of the State of
Washington as a non-charter code city (hereinafter called the ooCity"), and Goldfinch
Communications, LLC, a limited liability company, doing business in V/ashington as
"Goldfinch Communications, LLC" (hereinafter called o'Franchisee"), and collectively,
the "Parties".
V/HEREAS, the Public Rights-oÊWay within the City belong to the public and
are built and maintained at public expense for the use of the general public, the primary
pu{pose of which is public travel, and must be managed and controlled consistent with
that intent; and
V/HEREAS, the City is a Franchising authority within the meaning of Title VI of
the Communications Act (47 U.S.C. $ 522(10)); and
WHEREAS, cable services are currently being provided within the City by an
incumbent cable services provider; and
WHEREAS, Franchisee has made application to the City of Kent for a cable
Franchise to Construct, install, maintain, repair, and operate a cable communications
system using an FTTP network and is a Competitive Franchise Applicant as that term is
defined at 47 C.F.R.5 76.41; and
V/HEREAS, Franchisee represents that it has the legal, technical, and financial
qualifications to provide the Cable Services authorized herein; and
WHEREAS, based on representations and information provided by Franchisee,
and in response to its request for the grant of a Franchise, the City Council has
determined that the grant of a nonexclusive Franchise, on the terms and conditions herein
and subject to applicable law, are consistent with the public interest; and
WHEREAS, the City is authorized pursuant to RCV/ 35A.47.040 to grant
nonexclusive Franchises within the boundaries of the City;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
City and the Franchisee hereby agree as follows:
FRANCHISE AGREEMENT BETV/EEN CITY OF KENT
AND GOLDFINCH COMMI.INICATIONS, L.L.C. - 1
(May 26,2010)
ARTICLE 1. DEFINITIONS
Except as provided at Section 3.7 herein (Order of Precedence), for the purposes of
this Franchise and the Exhibits attached hereto, the following terms, phrases, words and
their derivations where capitalized shall have the meanings given herein. Words not defined
herein shall have the meaning given in the most current version of the City of Kent Design
and Construction Standards as adopted pursuant to Kent City Code ("KCC") Ch. 6.02 (the
ooConstruction Standards"). Words not defined herein or in the Construction Standards shall
have the meaning given pursuant to the Communications Act (as hereinafter defined).
Words not otherwise defined, shall be given their common and ordinary meaning. When
not inconsistent with the context, words used in the present tense include the future, words
in the plural include the singular, and words in the singular include the plural. The word
"shall" is always mandatory and not merely directory. References to governmental entities
(whether persons or entities) refer to those entities or their successors in authority. If
specific provisions of law, regulation, or rule referred to herein are renumbered, then the
reference shall be read to refer to the renumbered provision.
"Access Channel" shall mean a video Channel, which Franchisee shall make
available to the City without charge for non-commercial public, educational or
governmental use for the transmission of video programming as directed by the City, or
its designees, as applicable.
"Affiliate" when used in connection with Franchisee, means any Person who owns
or controls, is owned or controlled by, or is under common ownership or control with
Franchisee.
'oAnnexation Service Area" and "Annexation Area" shall mean and refer to that
same term as it is defined at Section 8.1.4 herein.
"Basic Seryice" or "Basic Service Tier" means any service tier that includes the
retransmission of all signals of domestic television broadcast stations provided to any
subscriber (except a signal secondarily transmitted by satellite carrier beyond the local
service area of such station, regardless of how such signal is ultimately received by the
cable system); any public, educational, and governmental programming required by the
Franchise to be carried on the basic service tier; and any additional video programming
signals or service added to the basic service tier by Franchisee.
"Breach" shall mean any failure of a Party to keep, observe, or peqform any of its
duties or obligations under this Franchise.
ooBuildout" means the permitting, design, Construction and activation of a fully
operational Cable System throughout the Franchise Area.
'oCable Operator" shall be defined herein as it is defined under Section 602 of the
Communications Act,47 U.S.C. 5 522(5), but does not include direct broadcast satellite
providers.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L,L,C, -2
(May 26, 2010)
"Cable Service" shall be defined herein as it is defined under Section 602 of the
Communications Act, 47 U.S.C. S 522(6), which currently states: the one-way
transmission to Subscribers of video programming or other programming service, and
Subscriber interaction, if any, which is required for the selection or use of such video
programming or other programming service, and shall mean and include IPTV.
ooCable System" or'oSystem" shall be defined herein as defined under Section 602
of the Communications Act, 47 U.S.C. ç 522(7), which currently states: a facility,
consisting of a set of closed transmission paths and associated signal generation,
reception, and control equipment that is designed to provide cable service which includes
video programming and which is provided to multiple subscribers within a community,
but such term does not include (A) a facility that serves only to retransmit the television
signals of I or more television broadcast stations; (B) a facility that serves subscribers
without using any public right-oÊway; (C) a facility of a common carrier which is
subject, in whole or in part, to the provisions of subchapter II of this chapter, except that
such facility shall be considered a cable system (other than for purposes of section 5a1(c)
of this title) to the extent such facility is used in the transmission of video programming
directly to subscribers, unless the extent of such use is solely to provide interactive on-
demand services; (D) an open video system that complies with section 573 of this title; or
(E) any facilities of any electric utility used solely for operating its electric utility system.
"Channel" shall be defined herein as it is defined under Section 602 of the
Communications Act, 47 U.S.C. ç 522(4), which currently states: 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).
o'City" shall mean the City of Kent, a municipal corporation organized as a non-
charter code city, operating under the laws of the state of V/ashington.
"Communications Act" shall mean the Communications Act of 1934, as amended
by, among other things, the Cable Communications Policy Act of 1984, the Cable
Consumer Protection and Competition Act of 1992, and the Telecommunications Act of
1996 as it may be further amended from time to time.
ooConstruct" or ooConstruction" shall mean to construct, reconstruct, install,
reinstall, align, realign, locate, relocate, adjust, affix, attach, remove, or support.
'oCorrective Action" shall mean a Party undertaking action as provided in this
Franchise to perform a duty or obligation that the other Party is obligated to but has failed
to perform.
ooDesign Document(s)" shall mean the plans and specifications for the
Construction of the Facilities illustrating and describing the refinement of the design of
the Cable System Facilities to be Constructed, establishing the scope, relationship, forms,
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L,C, -3
(May 26,2010)
size and appearance of the Facilities by means of plans, sections and elevations, typical
Construction details, location, alignment, materials, and equipment layouts. The Design
Documents shall include specifications that identify utilities, major material and systems,
Public Right-of-Way improvements, restoration and repair, and establish in general their
quality levels.
*100o/o Design Submittal" means a Design Document upon which Franchisee's
contractors will rely in Constructing the Cable System Facilities.
"Direct Costs" shall mean and include all costs and expenses to the City directly
related to a particular activity or activities, including, by way of example and not
limitation:
i. All costs and expenses of materials, equipment, supplies, utilities,
consumables, goods, and other items used or incorporated in connection with and in
furtherance of such activity or activities, and any taxes, insurance, and interest expenses
related thereto, including costs for crews and equipment;
ii. All costs and expenses of labor inclusive of payroll benefits, non-
productive time, and overhead for each of the labor classifications of the employees
performing work for the activity, and determined in accordance with the City's ordinary
governmental accounting procedures; and
iii. All costs and expenses to the City for any work by consultants or
contractors to the extent performing work for a particular activity or activities, including,
by way of example and not limitation, engineering and legal services.
"Dispute" shall mean a question or controversy that arises between the Parties
concerning the observance, perforrnance, interpretation, or implementation of any of the
terms, provisions, or conditions contained in this Franchise or the rights or obligations of
either Party under this Franchise.
ooEconomically and Technically Feasible" shall mean and refer to the following:
capable of being provided through technology that has been demonstrated to be feasible
for its intended pu{pose, in an operationally workable manner, and in a manner whereby
the Cable System has a reasonable likelihood of being operated on reasonably profitable
and commercially practicable terms.
"Effective Date" shall mean and refer to that term as it is defined at Section 4.3
herein.
ooEmergency" shall mean and refer to a sudden condition or set of circumstances
that, (a) significantly disrupts or interrupts the operation of Facilities in the Public Rights-
of-Way and Franchisee's ability to continue to provide services if immediate action is not
taken, or (b) presents an imminent threat of harm to persons or property if immediate
action is not taken.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. . 4
(May26,2010)
"Environmental Law(s)" means any federal, state, or local statute, regulation,
code, rule, ordinance, order, judgment, decree, injunction, or common law pertaining in
any way to the protection of human health or the environment, including without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Toxic Substances Control
Act, and any similar or comparable state or local law.
'oExtended Service Area" shall mean that portion of the Service Area outlined and
identified as such in Exhibit H attached hereto and made apart hereof.
ooFacility" means any part or all of the facilities, equipment and appurtenances of
Franchisee whether underground or overhead and located within the Public Rights-of-
'Way as part of the Franchisee's Cable System, including but not limited to, conduit, case,
pipe, line, fiber, cabling, equipment, equipment cabinets and shelters, vaults, generators,
conductors, poles, carriers, drains, vents, guy wires, encasements, sleeves, valves, wires,
supports, foundations, towers, anchors, transmitters, receivers, antennas, and signage.
"FCC" shall mean and refer to the United States Federal Communications
Commission or successor goverTìmental entity thereto.
"Franchise" shall mean the grant, once accepted, giving general permission to the
Franchisee to enter into and upon the Franchise Area and to use and occupy the same for
the purposes authorized herein, all pursuant and subject to the terms and conditions of
this Franchise Agreement.
"Franchise Fee" shall have the same meaning as that same term as it is defined in
Section 5.8.1.1 of this Franchise.
ooFranchise Ordinance" shall mean and refer to the Ordinance enacted by the City
Council authorizing the grant of this Franchise.
o'Franchisee" shall mean Goldfinch Communications, LLC and any of its
Affrliates.
"Franchise Area" shall mean collectively or individually the Public Rights-of-'Way located in the corporate boundaries of the City, as now constituted or as may
hereinafter be expanded through annexation or consolidation.
"Gross Revenue" shall mean and refer to any and all cash, credits, property, or
consideration of any kind or nature that constitutes revenue which is derived directly or
indirectly from Subscribers for Cable Services. Gross Revenue shall include, by way of
example and description but not by way of limitation, the following: all Subscriber
revenues earned or accrued, net of bad debts, including revenue for: (i) Basic Service,
digital service tiers, pay-per-view services, expanded services and premium services; (ii)
all fees charged to any Subscribers for any and all Cable Service provided by Franchisee
over the Cable System in the Service Area, including without limitation Cable Service
related program guides, the installation, disconnection, or reconnection of Cable Service;
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMLINICATIONS, L.L.C. - 5
(May 26,2010)
revenue from late or delinquent charge fees; cable franchise fees passed through to
Subscribers paid by Subscribers to Franchisee; Cable Service related or repair calls; the
provision of converters, remote controls, additional outlets, and/or other similar Cable
Service related Subscriber premises equipment, whether by lease or fee and whether
characteized as a lease or other similar fee; (iii) revenue from the collection of bad debts
previously written off against Gross Revenue (which items shall be included for the
period in which the bad debt is recovered); (iv) any revenue generated by Franchisee or
by any Affiliate through any means that has the effect of avoiding the payment of
compensation that would otherwise be paid to the City for the Franchise granted in this
Agreement.
Gross Revenue SHALL NOT INCLUDE:
Revenues received by any Affiliate or other Person in exchange for
supplying goods or services used by Franchisee to provide Cable Service over the Cable
System including professional service fees and insurance andlor bonding costs;
Bad debts written off by Franchisee in the normal course of its business,
provided, however, that bad debt recoveries shall be included in Gross Revenue during
the period collected;
Refunds, rebates, or discounts made to Subscribers or other third parties,
such as leased access providers, to the extent such refunds, rebates, or discounts represent
an actual refund or rebate of or a reduction in the price paid by Subscribers or other third
parties;
Any revenues generated by services that are NonCable Services;
Any revenue of Franchisee or any other Person which is received from the
sale of merchandise through any Cable Service distributed over the Cable System, except
for that portion of such revenue which is paid to Franchisee as a commission or a fee for
cablecasting such programming;
Revenue from the sale of Cable Service on the Cable System in a resale
with respect to which the buyer is obligated to collect and pay a franchise fee to the City;
Any tax of general applicability imposed upon Franchisee or upon
Subscribers by a city, state, federal, or any other governmental entity and required to be
collected by Franchisee from Subscribers and remitted to the taxing entity (including, but
not limited to, sales/use tax, gross receipts tax, excise tax, utility users tax, public service
tax, communication taxes, and noncable franchise fees);
The provision of Cable Services to customers without charge, including,
without limitation, the provision of Cable Services to public institutions as required or
permiued herein, provided, however, that such foregone revenue which Franchisee
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. . 6
(May 26,2010)
chooses not to receive in exchange for trades, barters, services, or other items of value
shall be included in Gross Revenue;
Sales of capital assets or sales of surplus equipment;
Program launch fees and other programmer reimbursements;
Revenues from the sale or lease ofaccess channel(s) or channel capacity;
Compensation received by Franchisee that is derived from the operation of
Franchisee's Cable System to provide Cable Service with respect to commissions that are
paid to Franchisee as compensation for promotion or exhibition of any products or
services on the Cable System, such as'ohome shopping" or a similar channel;
Directory or Internet advertising revenue including, but not limited to,
yellow page, white page, banner advertisement, and electronic publishing;
Investment income; and
Any fees or charges collected from Subscribers or other third parties for
PEG/INET Grant payments and FCC regulatory fees.
"Hazardous Substance" means arry hazardous, toxic, radioactive, or infectious
substance, material, or waste as defined, listed, or regulated under any Environmental
Law, and any element, compound, mixture, solution, particle, or substance which
presents danger or potential danger for damage or injury to health, welfare, or to the
environment, including, but not limited to: those substances which are inherently or
potentially radioactive, explosive, ignitable, corrosive, reactive, carcinogenic, or toxic;
those substances which have been recognized as dangerous or potentially dangerous to
health, welfare, or to the environment by any federal, municipal, state, city, or other
governmental or quasi-govemmental authority, andlor any department or agency thereof;
those substances which use asbestos or lead-based paint or have a component thereof or
therein; and petroleum oil and any of its fractions.
"Initial Service Area" shall mean and refer to that part of the Franchise Area
outlined and identified as such in Exhibit H attached hereto and incorporated herein by
reference, in which Franchise shall initiate its Buildout.
"Internet Access" shall mean and refer to dialup or broadband access service that
enables Subscribers to access the Internet.
"IPTV" or "Internet Protocol Television" shall mean and refer to the delivery of
video programming via a broadband connection using Internet protocols.
"KCC" shall mean the Kent City Code.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 7
(May 26,2010)
"Law(s)" shall mean all present and future applicable laws, ordinances, rules,
regulations, resolutions, franchises, authorizations, environmental standards, orders,
decrees and requirements of all federal, state, city and municipal governments, the
departments, bureaus or commissions thereof, authorities, boards or officers, any national
or local board of fire underwriters, or any other body or bodies exercising sinqilar
functions having or acquiring jurisdiction over all or any part of the Facilities, including
the City acting in its governmental oapacity, or other requirements. References to Laws
shall be interpreted broadly to cover government actions, however nominated, ffid
include laws, ordinances, and regulations now in force or hereinafter enacted or amended.
'oLegal Action" shall mean filing a lawsuit.
ooMaterial Breach" shall mean any of the following circumstances:
Breach of a Party's obligation to defend or indemniff the other
Party;
If a Party in bad faith attempts to evade any material provision of
this Franchise or engages in any fraud or deceit upon the other
Party;
If Franchisee becomes insolvent, or if there is an assignment for
the benefit of Franchisee's creditors;
If Franchisee fails to provide or maintain the insurance, bonds,
security fund, or other security required by this Franchise;
Refusal to enter into good faith negotiations in accordance with
Section 3.5 (Subsequent Action);
Breach of Section 7.14 (Abandonment of Facilities);
Any Breach that cannot practicably be cured;
Any Non-Material Breach that is not cured as required pursuant to
Section 6.3; or
A pattern of Non-Material Breaches, i.e., three (3) or more in any
one year period.
"Middle Service Area" shall mean that portion of the Service Area outlined and
idenlified as such in Exhibit H attached hereto and made aparÍ hereof.
"Network Access Point" shall mean and refer to the location where a physical
network services connection point has been designated as a Network Access Point and
has been designed into the networks construction build out to physically connect via a
network connection device to provide a network access point to the public services
netrvork. The netrvork access point could be designed at a building's minimum point of
entry ("MPOE"), a building's intermediate cross-connect ('oIC"), any given point of
presence ("POP"), Splice-less Network Access Closure ("SNAC"), a network splice
enclosure where network connectivity is available, or a fiber distribution connection
panel located within a building or structure located within any given Service Area of the
municipal and/or public network.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 8
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(May 26,2010)
"NonCable Seryices" shall mean and include any service that does not constitute a
Cable Service including, but not limited to, information services and telecommunications
services, as those terms are defined in the Communications Act.
"Non-Material Breach" means any Breach that does not constitute a Material
Breach.
"Noticed Party" shall mean the Party in receipt of notice of a Material or Non-
Material Breach.
"Party(ies)" shall mean either the City or the Franchisee or both.
"Permit" means a permit issued under the regulatory authority of the City that
provides specific requirements and conditions for work to Construct any part of the Cable
System and includes by way of example and not limitation, a Construction Permit,
building Permit, street cut Permit, and clearing or grading Permit.
"Person" means and includes any individual, corporation, partnership, association,
joint-stock-company, limited liability company, political subdivision, public corporation,
taxing district, trust, or any other legal entity, but not the City or any Person under
contract with the City to perform work in the Public Rights-of-V/ay.
"Public Rights-of-Way" and "Public Right-of-Way" mean the surface of, and the
space above and below, any public street, highway, freeway, bridge, land path, alley,
court, boulevard, sidewalk, way, lane, public way, drive, circle, pathways, spaces,
conduits, manholes or other public right-of-way, including any easement now or hereafter
held by the City within the corporate boundaries of the City as now or hereafter
constituted for the purpose of public travel, and over which the City has authority to grant
permits, licenses or franchises for use thereof, or has regulatory authority thereover,
excluding railroad rights-of-way, airports, harbor areas, buildings, parks, poles, conduits,
dedicated but un-opened right of way, and such similar facilities or property owned,
maintained, or leased by the City in its governmental or proprietary capacity or as an
operator of a utility.
"Public 'Works Director" means and refers to the Public Works Director for the
City, or his or her designee, or such officer or person who has been assigned the duties of
Public Works Director, or his or her designee.
"Remedy", "Remediate" and "Remedial Action" shall have the same meaning as
these are given under the Model Toxics Control Act (Chapter 70.105D RCW) and its
implementing regulations at Chapter 173-340 WAC.
'oResident" shall mean and refer to any occupant who residbs in a residential
dwelling in the City, including, without limitation, occupants of single and multi-family
dwellings, rooming houses, condominiums, town homes, or mobile home parks.
"Residential Subscriber" shall mean and refer to a Resident who is a Subscriber.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L,L,C, -9
(May 26,2010)
"Service" shall mean the service or services authorized to be provided by the
Franchisee under the terms and conditions of this Franchise.
"service Area" shall mean collectively the Initial Service Area, the Middle
Service Area, the Extended Service Area, and the Annexation Service Areas.
ooservice Date" shall mean and refer to the date that the Franchisee first provides
Cable Service on a coÍtmercial basis directly to multiple Subscribers in the Franchise
Area. The Franchisee shall memorialize the Service Date by notifying the City in writing
of the same, which notification shall become apart of this Franchise.
"subscriber" shall mean and refer to a Person who legally receives Cable Service
within the Service Area over the Cable System.
"Technology Fee" shall have the same meaning as that same term as it is defined
at Section 5.8.1.2 of this Franchise.
"Transfer" shall mean any transaction in which all or a portion of the Cable
System is sold, leased or assigned (except a sale or transfer that results in removal of a
particular portion of the Cable System from the Public Rights-of-Way); or, the rights
and/or obligations held by the Franchisee under the Franchise are transferred, sold,
assigned, or leased, in whole or in part, directly or indirectly, to another Person. A
transfer of control of Franchisee shall not constitute a transfer as long as the same person
continues to hold the Franchise both before ancl after the transfer of control. The term
oocontrol" (including o'controlled by") means the power or authority, either de facto or de
jure, to direct the management or operations of the Franchisee.
o'Video Programming" shall mean and refer to that term as it is defined under
Section 602 of the Communications Act, 47 U.S.C. ç 522(20), which currently states:
programming provided by, or generally considered comparable to programming provided
by, a television broadcast station.
'oVideo Serving Office" shall mean and refer to a facility of the Franchisee
(usually a central office associated with the Public Switched Network for voice services,
but includes other similar facilities designated by the Franchisee for this purpose) for
which a portion has been equipped with the appropriate equipment to enable Cable
Service to be provisioned to Subscribers.
"'Work" shall mean any and all activities of the Franchisee, or its offrcers,
directors, employees, agents, contractors, subcontractors, volunteers, invitees, or
franchisees, within the Public Rights-of-Way to Construct the Facilities.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMLTNICATIONS, L.L.C. - IO
(May 26,2010)
ARTICLE 2. FRANCHISE GRANT
2.1 Public Rights-of-V/ay Use Authorized. Subject to the terms and conditions
of this Franchise, the City hereby grants to Franchisee a nonexclusive Franchise authorizing
the Franchisee to Construct and operate Facilities in, along, among, upon, across, above,
over, and under the Public Rights-oÊWay located within the Franchise Area. Franchisee
shall coordinate its work within the Public Rights-of-Way with the City's Capital
Improvement Plans, Transportation Improvement Plan ("Plan"), and Comprehensive
Plan.
2.2 Authorized Services. The grant given herein eipressly authorizes Franchisee
to use the Public Rights-oÊWay to Construct and operate a Cable System to provide Cable
Services. This authonzation is limited and is not intended nor shall it be construed as
granting Franchisee or any other Person the right, duty, or privilege to use its Cable System
or the Public Rights-of-Way to provide NonCable Services or any other services not
specifically authorized herein, including but not limited to telecommunications or
information services. This Franchise shall not be interpreted to prevent the City from
lawfully imposing additional conditions, including additional compensation conditions for
use of the Public Rights-of-Way, should Franchisee provide service other than Service
specifi cally authorized herein.
2.3 No Rights Shall Pass to Franchisee by Implication. No rights shall pass to
the Franchisee by implication. Without limiting the foregoing and by way of example, this
Franchise shall not include or be a substitute for:
2.3.1 Any other authorization required for the privilege of transacting and
carrying on a business within the City that may be lawfully required by the Laws of the
City;
2.3.2 Any agreement, Permit or authorization required by the City for
Public Rights-oÊWay users in connection with operations on or in Public Rights-oÊWay or
public property; or
2.3.3 Any Franchises, leases, easements, or other agreements for
occupying any other property or infrastructure of the City or other Persons to which access
is not specifically granted by this Franchise including, without limitation, agreements for
placing devices on poles, light standards, in conduits, in vaults, in or on pipelines, or in or on
other structures, public parks, or public buildings.
2.4 Interest in the Public Rights-oÊWay. This Franchise does not convey title,
equitable or legal, in the Public Rights-of-Way. The City does not represent or guarantee
that its interest, or other right to control the use of such Public Rights-of-Way, is
sufficient to grant its use for Franchisee's purposes. This Franchise shall be deemed to
grant no more than those rights which the City may have the undisputed right and power
to give. This grant does not confer rights other than as expressly provided in this Franchise
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 1I
(May 26,2010)
and is subject to the limitations in applicable Law. This right shall not be Tranpferred,
subdivided or subleased to a person other than the Franchisee.
Franchisee acknowledges that, where City has an ownership interest in a
Franchise Area, that ownership interest may be a determinable fee, a Public Right-of-
Way dedication, or a right-of-way easement, which may terminate when City either: (i)
ceases to use that Public Rightof-Way for Public Rightof-V/ay pu{poses; or (ii) uses
such Public Right-oÊV/ay for purposes found to be inconsistent with use of the Public
Right-oÊWay for Public Right-of-V/ay purposes, and that in such circumstances, City's
right to franchise or grant the use of any such Public Right-of-Way, or rights under any
franchise of any such Public Right-of-Way, may be subject to termination as of the date
the circumstances set forth in either (i) or (ii) above, first arise (unless Franchisee
improves the quality of title to the applicable Franchise Area, or acquires additional
property interests from other Persons).
Franchisee also acknowledges that, where City has ownership rights, those
ownership rights may terminate for other reasons, such as a street vacation. Franchisee
further acknowledges that Franchisee's rights under this Franchise as to any Franchise
Area, are subject to all outstanding rights and encumbrances on City's Public Rights-of-
Way (including City Utilities), and any easements, franchise agreements, licenses,
permits, grants, or other agreements in effect on or before the Effective Date; City
therefore grants to Franchisee no more right, title, and interest in any Public Rights-oÊ
V/ay than the City holds in such Public Rights-of-Way at the time of grant, and
Franchisee hereby releases City from any and all liability, cost, loss, damage, or expense
in connection with any claims that City lacked sufficient legal title or other authority to
convey the rights described herein. In case of eviction of Franchisee or Franchisee's
contractors by anyone owning or claiming title to, or any interest in, the Franchise Area,
City shall not be liable to Franchisee or Franchisee's Contractors for any costs, losses, or
damages of any Party.
CITY DOES NOT WARRANT ITS TITLE OR PROPERTY INTEREST IN OR
TO ANY FRANCHISE AREA NOR UNDERTAKE TO DEFEND FRANCHISEE IN
THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET
ENJOYMENT IS MADE.
2.5 Condition of Franchise Area. Franchisee has inspected or will inspect
Franchise Area, and enters upon each such Franchise Area with knowledge of its physical
condition and the danger inherent in operations conducted in, on, or near any Franchise
ATea. FRANCHISEE ACCEPTS THE FRANCHISE AREA IN AN ..AS-IS WITH ALL
FAULTS" BASIS V/ITH ANY AND ALL PATENT AND LATENT DEFECTS AND IS
NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR
IMPLIED, OF ANY KIND WHATSOEVER FROM THE CITY AS TO ANY
MATTERS CONCERNING THE FRANCHISE AREA, including, but not limited to: the
physical condition of the Franchise Area; zoning status; presence and location of existing
utilities; operating history; compliance by the Franchise Area with Environmental Laws
or other Laws and other requirements applicable to the Franchise Area; the presence of
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L,L,C,. 12
(May 26,2010)
any Hazardous Substances or wetlands, asbestos, or other environmental conditions in,
on, under, or in proximity to the Franchise Area; the condition or existence of any of the
above ground or underground structures or improvements, including tanks and
transformers in, on, or under the Franchise Area; and the condition of title to the
Franchise Area, and the leases, easements, franchises, orders, Permits, or other
agreements affecting the Franchise Area (collectively, the "Condition of the Franchise
Area").
Franchisee represents and warrants to the City that neither the Franchisee nor its
contractors or subcontractors have relied and will not rely on, and the City is not liable
for or bound by, any warranties, guaranties, statements, representations, or information
pertaining to the Condition of the Franchise Area or relating thereto made or furnished by
the City, or any agent representing or purporting to represent the City, to whomever made
or given, directly or indirectly, orally or in writing. CITY HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY, V/HETHER EXPRESS OR IMPLIED, AS TO
THE DESIGN OR CONDITION OF THE FRANCHISE AREA, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE
QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE PUBLIC zuGHT.OF.
V/AY, OR THE CONFORMITY OF ANY PART OF THE PUBLIC RIGHT-OF-V/AY
TO ITS INTENDED USES. CITY SHALL NOT BE RESPONSIBLE TO
FRANCHISEE OR ANY OF FRANCHISEE'S CONTRACTORS FOR ANY
DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY,
MERCHANTABILITY, OR'FITNESS FOR ANY PARTICULAR PURPOSE OF ANY
PART OF THE PUBLIC RIGHT-OF-V/AY PRESENT ON OR CONSTITUTING ANY
FRANCHISE AREA, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS
INTENDED USES.
2.6 Franchise Nonexclusive. This Franchise shall be nonexclusive Subject to
the terms and conditions herein, the City may at any time grant authonzationto others to use
the Public Rights-of-V/ay for any lawful purpose.
2.7 Transfer. Franchisee may Transfer this Franchise after prior written notice
to and approval by the City and Transferee's written commitment, in substantially the
form of the agreement attached hereto as Exhibit "G", delivered to the City, that
Transferee shall thereafter be responsible for all obligations of Franchisee with respect to
the Franchise and guaranteeing performance under the terms and conditions of the
Franchise and that Transferee shall be bound by all the conditions of the Franchise and
will assume all the obligations of its predecessor. Such a Transfer shall relieve the
Franchisee of any further obligations under the Franchise, including any obligations not
fulfilled by Franchisee's Transferee; provided that, the Transfer shall not in any respect
relieve the Franchisee, or any of its successors in interest, of responsibility for acts or
omissions, known or unknown, or the consequences thereof, which acts or omissions
occur prior to the time of the Transfer. This Franchise may not be Transferred without
filing or establishing with the City the insurance certificates, security fund, and
performance bond as required pursuant to this Franchise and paying all Direct Costs to
the City related to the Transfer. The Parties agree that it would not be unreasonable for
the City to withhold its consent to a Transfer to an incumbent Cable Operator.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 13
(May 26,2010)
Notwithstanding the foregoing, notice to the City shall not be required for a
mortgage, hypothecation, or an assignment of Franchisee's interest in the Franchise in order
to secure indebtedness.
Franchisee may, without prior written notice to the City: (i) lease the Cable
System, or any portion thereof, to another Person; (ii) grant an indefeasible right of user
interest in the Cable System, or any portion thereof, to another Person; or (iii) offer or
provide capacity or bandwidth in its Cable System to another Person; provided that,
Franchisee at all times retains exclusive control over its Cable System ancl remains
responsible for Constructing'its Facilities pursuant to the terms and conditions of this
Franchise, and provided further that, Franchisee may grant no rights to any such Person
that are greater than any rights Franchisee has pursuant to this Franchise; such Persons
shall not be construed to be a third-Party beneficiary hereunder; and, no such Person may
use the Cable System for any purpose not authorized herein.
Notwithstanding the foregoing, nothing herein shall operate to prevent Franchisee
from conveying all or a portion of the Cable System to the City.
2.8 Street Vacation. If any Public Right-of-Way or portion thereof used by
Franchisee is to be vacated during the term of this Franchise, unless as a condition of
such vacation the Franchisee is granted the right to continue its Facilities in the vacated
Public Right-of-Way, Franchisee shall, upon written demand being made by the City and
within the time period specified in the written notice, remove its Facilities from such
Public Right-of-Way, ancl restore, repair or reconstruct the Public Right-of-Way where
such removal has occurred, and place the Public Right-of-Way in such condition as may
be required by the City.
2.9 Railroad Rights-of-V/ay. In the event that any portion of the Facilities will
be Construrcted in the Public Right-oÊWay within twenty-five (25) feet of the centerline of
any railroad track, Franchisee shall be responsible for coordinating such V/ork with the
owner/operator of such railroad track to conform the Franchisee Work to the design and
construction standards of the owner/operator to the extent Facilities will be installed above
or below the track, and shall be responsible for complying with those worþlace safety
requirements that would apply to contractors performing work in the railroad right-of-way
on behalf of the railroad owner/operator. Franchisee may also be required to obtain railroad
protective liability insurance naming the railroad owner/operator as an additional insured.
2.10 Reservation of Citv Use of Public Rieht-of-V/ay Nothing in this Franchise
shall prevent the City from constructing sanitary or storm sewers; grading, changing grade,
paving, repairing or altering any Public Right-of-V/ay;laying down, repairing or removing
water mains; or installing conduit or fiber optic cable.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. . 14
(May 26,2010)
ARTICLE 3. COMPLIANCE WITH LAWS/ORDER OF PRECEDENCE
3.1 Compliance With Laws.Except as provided herein pursuant to Section
3.3, the Franchisee agrees to comply with all applicable Laws as are now or hereafter in
effect, and any lawful orders from regulatory agencies or courts with jurisdiction over
Franchisee and its Facilities, or over the City and the Public Rights-oÊWay. Specifically,
Franchisee understands that at the time of the Effective Date of this Franchise, the City
will be undertaking to review and revise Chapter 7.I2 (Cable Television
Communications) of the Kent City Code. Franchisee agrees it shall be subject to the
provisions of Chapter 7.12 as revised; provided however, in addition to the right of the
Franchisee pursuant to Section 3.5 to enter into good faith negotiations to amend this
Franchise, in the event that the provisions of Chapter 7 .I2KCC as amended shall operate
to materially and detrimentally impact Franchisee's operations, cost of operations, or cost
of service, and the City and Franchisee are unable, through good faith negotiations, to
agree upon mutually acceptable terms and conditions of an amendment to the Franchise,
Franchisee may, upon reaching such an impasse and giving written notice thereof to the
City, elect to (a) shorten the term of the Franchise, provided that the remainder of the
term is no less than three (3) years, or (b) extend the time period remaining for Buildout
in each of the remaining Service Areas by up to two (2) years.
3.2 Police Powers. Franchisee acknowledges that its rights hereunder are
subject to those powers expressly reserved by the City and further are subject to the
police powers of the City to adopt and enforce ordinances necessary to protect the health,
safety and welfare of the public. Franchisee agrees to comply with all lawful and
applicable general ordinances now or hereafter enacted by the City pursuant to such
power. Such powers include, but are not limited to, the right to adopt and enforce
applicable zoning, building, permitting, and safety ordinances and regulations, the right
to adopt and enforce ordinances and regulations relating to equal employment
opportunities, and the right to adopt and enforce ordinances and regulations governing
work performed in the Public Rights-of-Way.
3.3 Alteration of Material Terms and Conditions. Subject to federal and state
preemption, the material rights, benefits, obligations, or duties as specified in this
Franchise may not be unilaterally altered by the City through subsequent amendments to
any ordinance, regulation, resolution, or other enactment of the City, except within the
lawful exercise of the City's police power.
3.4 Reservation of Riehts/Waiver. The City is vested with the power and right
to administer and enforce the requirements of this Franchise and the regulations and
requirements of applicable Law, or to delegate that porwer and right, or any part thereof, to
the extent permitted under Law, to any agent in the sole discretion of the Cþ. The City
expressly reserves all of its rights, authority, and control arising from any relevant
provisions of federal, state, or local Laws granting the City rights, authority, or control over
the Public Rights-of-Way or the activities of the Franchisee. Nothing in this Franchise
Agreement shall be deemed to waive the requirements of the various codes and
ordinances of the City regarding Franchises, fees to be paid, or manner of Construction.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 15
(May26,2010)
Nothing in this Franchise shall be deemed to waive, and Franchisee specifically reserves
the right to challeng€, ffiy City ordinance, regulation, or resolution that conflicts with its
rights under this Franchise.
3.5 Subsequent Action. In the event that after this Franchise becomes
effective, (a) there is a change in or clarification of the Law which changes, broadens, or
clarifies the authority or obligations of the City or the Franchisee with respect to any act
permiued or authorized under this Franchise, or (b) the State of Washington or any
agency thereof or any agency of the Federal government require Franchisee or the City to
act in a manner which is inconsistent with any provisions of this Franchise, or (c) any
term, article, section, subsection, paragraph, provision, condition, clause, sentence, or
other portion of this Franchise, or its application to any person or circumstance, shall be
held to be illegal, invalid, or unconstitutional for any reason by any court or agency of
competent jurisdiction, or (d) the Construction, maintenance, repair, andlor operation of
the Cable System within the Public Right-of-Way causes or results in (i) degradation of
the Public RighroÊWay in a way, or to an extent, that was not reasonably foreseen by
the City prior to the Effective Date, or was known by the Franchisee, but not disclosed to
the City on or before the Effective Date, or (ii) harm or the threat of imminent harm to
the public health or safety that was not known by the City upon the Effective Date, or (e)
because of a change in circumstances or advancement in technology, the City or the
Franchisee believe that amendments to this Franchise are necessary or appropriate, then
the City and the Franchisee agree to enter into good faith negotiations to amend this
Franchise so as to enable the City and Franchisee to address, in a manner reasonably
acceptable to the City and Franchisee, such change or other development which formed
the basis for the negotiations. The City and Franchisee recognize that the purpose of the
negotiations would be to preserve, to the maximum extent consistent with Law, the
intent, scope, and purpose ofthis Franchise.
Except as may be otherwise provided herein, if the terms of this Franchise are
materially altered due to changes in or clarifications governing Law or due to agency rule
making or other action, then the Parties shall negotiate in good faith to reconstitute this
Franchise in a way consistent with then-applicable Law in a form that, to the maximum
extent possible, is consistent with the original scope, intent, and purpose of the City and
Franchisee, and preserves the benefits bargained for by each Party.
3.6 Change in Form of Govemment. Any change in the form of government
of the City shall not affect the validity of this Franchise. Any governmental unit
succeeding the City shall, without the consent of Franchisee, succeed to all of the rights
and obligations of the City provided in this Franchise.
3.7 Order of Precedence
3.7.1 In the event of a conflict between a provision, term, condition, or
requirement of the Cþ Code or City ordinance in effect upon the Effective Date and a
provision, term, condition, or requirement of this Franchise, the provision, term, condition,
or requirement of the City Code or City ordinance shall control to the extent of such
FRANCHISE AGREEMENT BETIWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 16
(May 26,2010)
conflict; provided that, the fact that a provision, term, condition, or requirement contained in
the Franchise may be more restrictive than a provision, term, condition, or requirement in
the City Code or a Clty ordinance shall not constitute a conflict.
3.1.2 In the event of a conflict between a provision, tem, condition, or
requirement of the City Code or City ordinance enacted subsequent to the Effective Date
and a provision, term, condition, or requirement of this Franchise, the provision, tem,
condition, or requirement of the City Code or City ordinance shall control, to the extent of
the conflict, subject to Sections 3.3 and 3.4 of this Franchise; provided that, the fact fhat a
provision, term, condition, or requirement contained in the Franchise may be more
restrictive than a provision, term, condition, or requirement in the City Code or a City
ordinance shall not constitute a conflict. Franchisee agrees it shall be subject to the
provisions of Chapter 7 .l2KCC as revised subsequent to the Effective Date.
3.7.3 In the event of a conflict between a provision, term, condition, or
requirement of this Franchise and a provision, term, condition, or requirement of an Exhibit
incorporated herein, the Franchise shall control, to the extent of the conflict.
ARTICLE 4. ACCEPTANCE
4.1 Acceptance. Within sixty (60) days after the effective date of the Franchise
Ordinance, this Franchise shall be Accepted by Franchisee. For purposes of this Franchise,
'Accepted" or "Acceptance" shall mean filing with the City Clerk during regular business
hours, or such other person as may be designated by the City, three (3) originals of this
Franchise with Franchisee's original signed and notarized written acceptance of all of the
terms, provisions, and conditions of this Franchise in conforrnance with Exhibit "8". At
the time of Acceptance of the Franchise, Franchisee shall also file with the City Clerk, or
such other person as may be designated by the City, the following, if required herein:
4.1.1
Section 5.3 herein.
The insurance certificate in conformance with the requirements of
4.1.2 The performance and payment bond in conformance with the
requirements of Section 5.4 herein.
4.1.3 The security fund deposit or letter or credit in conformance with the
requirements of Section 5.4 herein.
4.1.4 Payment in readily available funds of the administrative costs for
issuance of the Franchise in conformance with the requirements of Section 5.8.2 herein.
4.1.5 Payment of the costs of publication of this Franchise in
conformance with the requirements of Section 5.8.2 herein.
FRANCHISE AGREEMENT BETV/EEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 17
(May 26,2010)
In the event that the sixtieth day falls on a Saturday, Sunday, or legal holiday during
which the City is closed for business, the filing date shall fall on the last business day before
such Saturday, Sunday, or legal holiday.
4.2 Failure to Timely File Acceptance. The failure of Franchisee to timely file
its written Acceptance shall be deemed a rejection by Franchisee of this Franchise, and this
Franchise shall then be void. In the event that Franchisee timely files its written Acceptance
but fails to timely comply with the applicable requirements of Sections 4.1.1 through 4.1.5,
this Franchise shall be voidable in the sole discretion of the Mayor without further action
required by the City Council or the consent of the Franchisee. The Franchise shall be
voidable until such time as Franchisee complies with all of the applicable requirements of
Sections 4.1.1 through 4.1.5. No opportunity to cure onpublic hearing is required to void
the Franchise pursuant to this Section 4.2.
4.3 EffectiveDate/TermÆxtension.
4.3.1 Effective Date. The Effective Date of this Franchise shall be 12:01
a.m. on the first day following Acceptance timely filed pursuant to Section 4.1 herein. This
Franchise and the rights, privileges, and authority granted hereunder, and the contractual
relationship established hereby, shall take effect and be in force from and after the Effective
Date of this Franchise.
4.3.2 Initial Term. Subject to Section 6.3 below, the initial term of this
Franchise shall commence on the Effective Date and shall continue in full force and effect
for a period of twenty (20) years, unless sooner terminated, revoked, or declared void.
Nothing in this subsection 4.3 shall affect the right of the City to terminate or revoke this
Franchise pursuant to Section 6.3 (Termination/Revocation) herein.
4.3.3 Renewal. Any renewal of the Franchise shall conform to the
requirements of 47 USC $ 546.
4.3.4 Extension. Franchisee may, in lieu of renewal pursuant to Section
4.3.3 above, request an extension of the initial term of this Franchise for an additional term
of ten (10) years; provided that, Franchisee shall have complied with the conditions set forth
in this Section and shall have notified the City of the request for the extension no less than
three (3) years prior to the expiration of the then-current term, unless such notice is waived
by the Mayor in writing. The City may deny the extension of the term if Franchisee has
failed to comply with the conditions set forth in this Section. Franchisee may request a
second ten (10) year extension subject to the same conditions as the first extension, for a
maximum cumulative term of forty (40) years.
Franchisee shall have a right to obtain such extensions only if Franchisee is: (1) in
substantial compliance with the material terms arid conditions of this Franchise; (2)
Franchisee provides timely written notice to the City that it seeks a ten (10) year extension
(and agrees not to give formal renewal notice under 47 U.S.C. 546(a), before such time); (3)
Franchisee and the City mutually agree upon payment of PEG Capital Fees as a condition of
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 18
(May 26,2010)
such extension; and (4) Franchisee's Cable Service performance is consistent with current
overall industry technical practices and range and level of services, existing and planned for
Cable Systems in communities in V/ashington State comparable to the City, taking into
account, size, location, and population. Such a survey oftechnical practices and range and
level of services shall include due consideration ofthe then current practices and trends in
the industry and whether or not Franchisee has the ability and agrees to perform consistently
with the industry practice in the ten (10) year extension periods by implementing
improvements that a.re commercially feasible. An expert or experts in the area of cable
television shall be designated by the Mayor, after consultation with Franchisee, to conduct a
survey, to assess the survey results, in full consultation with Franchisee, and to advise the
City whether Franchisee meets these requirements of item number 3 of this paragraph.
4.4 Effect of Acceptance. By accepting the Franchise the Franchisee:
4.4.1 Accepts and agrees to comply with and abide by all of the lawful
terms and conditions of this Franchise;
4.4.2 Acknowledges and accepts the City's legal right to grant this
Franchise;
4.4.3 Agrees that the Franchise was granted pursuant to processes and
procedures consistent with applicable Law and that it will not raise any claim to the
contrary;
4.4.4 Agrees that ít enters into this Franchise freely and voluntarily,
without any duress or coercion, after free and full negotiations, after carefully reviewing
all of the provisions, conditions, and terms of this Franchise Agreement, and after
consulting with counsel;
4.4.5 Warrants that Franchisee has full right and authority to enter into
and accept this Franchise in accordance with its terms, and by entering into or performing
this Franchise, Franchisee is not in violation of its charter or byJaws, or any Law,
regulation, or agreement by which it is bound or to which it is subject; and
4.4.6 V/arrants that acceptance of this Franchise by Franchisee has.been
duly authorized by all requisite Board action, that the signatories for Franchisee hereto
are authorized to sign the Franchise acceptance, and that the joinder or consent of any
other party, including a court, trustee, or referee, is not necessary to make valid and
effective the execution, delivery, and perfonnance of this Franchise.
4.5 Effect of Expiration/Termination.Upon expiration, revocation, or
termination of the Franchise without renewal or other authorization, or upon the
Franchise being declared Void pursuant to Section 4.2herein, Franchisee shall no longer
be authorized to operate the Cable System within the Franchise Area and shall, to the
éxtent it may lawfully do so, cease operation of the Cable System. Forthwith thereafter,
except as may be otherwise agreed to in writing between the Parties, F?anchisee shall
remove its structures or property from the Public Rights-of-Way and restore the Public
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 19
(May 26,2010)
Rights-of-Way to such condition as the City may reasonably require all at Franchisee's
expense.
ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC
5.1 Limitation of Liability.
5.1.I INDEMNITY/RELEASE/DEFENSE. EXCEPT AS MAY BE
OTHERWISE PROVIDED PURSUANT TO SECTION 5.2 OF THIS FRANCHISE
WITH RESPECT TO ENVIRONMENTAL LIABILITY, TO THE FULLEST EXTENT
PERMITTED BY LAW, FRANCHISEE SHALL RELEASE, INDEMNIFY, DEFEND,
AND HOLD HARMLESS THE CITY AND THE CITY'S SUCCESSORS, ASSIGNS,
LEGAL REPRESENTATIVES, OFFICERS (ELECTED OR APPOINTED),
EMPLOYEES, AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM,
AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES,
COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS,
JUDGMENTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT
COSTS, ATTORNEYS' FEES, AND COSTS OF INVESTIGATION, REMOVAL AND
REMEDIATION, AND GOVERNMENTAL OVERSIGHT COSTS),
ENVIRONMENTAL OR OTHERV/ISE (COLLECTIVELY "LIABILITIES"), OF
ANY NATURE, KIND, OR DESCRIPTION, OF ANY PERSON OR ENTITY,
DIRECTLY OR INDIRECTLY, ARISING OUT OF, RESULTING FROM, OR
RELATED TO (rN V/HOLE OR rN PART):
5.1.1.1 THIS FRANCHISE;
5.1.1.2 ANY RIGHTS OR INTERESTS GRANTED
PURSUANT TO THIS FRANCHISE;
5.1.1.3 FRANCHISEE'S OCCUPATION AND USE OF THE
PUBLIC RIGHTS-OF-V/AY;
5.1.1.4 FRANCHISEE'S OPERATION OF THE CABLE
SYSTEM;
5.1.I.5 THE PRESENCE OF THE CABLE SYSTEM WITHIN
THE PUBLIC RIGHT-OF-WAY;
5.1.1.6 THE ENVIRONMENTAL CONDITION AND STATUS
OF THE PUBLIC RIGHT-OF-WAY CAUSED BY, AGGRAVATED BY, OR
CONTzuBUTED TO, IN WHOLE OR IN PART, BY FRANCHISEE OR ITS
CONTRACTORS, SUBCONTRACTORS, OR AGENTS;
FRANCHISEE'S
5.1.1.7 ANY ACT OR OMISSION OF FRANCHISEE OR
CONTRACTORS, SUBCONTRACTORS, AGENTS AND
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMLINICATIONS, L.L.C. -20
(May 26,2010)
SERVANTS, OFFICERS OR EMPLOYEES IN CONNECTION WITH V/ORK IN THE
PUBLIC RIGHT OF WAY; OR
5.1.1.8 THE CITY'S PERMITTING FRANCHISEE'S USE OF
THE CITY'S PUBLIC RIGHTS-OF-WAY OR OTHER PUBLIC PROPERTY.
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN
WHOLE OR IN PART, ANY NEGLIGENCE OF ANY OF THE INDEMNITEES. THE
ONLY LIABILITIES WITH RESPECT TO V/HICH FRANCHISEE'S OBLIGATION
TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO
THE EXTENT PROXIMATELY CAUSED BY THE SOLE NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF AN INDEMNITEE OR FOR LIABILITIES THAT
BY LAV/ THE INDEMNITEES CANNOT BE INDEMNIFIED FOR.
This covenant of indemnification shall include, but not be limited by this
reference, to Liabilities arising: (1) as a result of the negligent acts oq omissions of
Franchisee, its agents, servants, officers, or employees in barricading, instituting trench
safety systems, or providing other adequate warnings of any excavation, Construction, or
work in any Public Right-of-Way or other public place in performance of Work or
Services Permitted under this Franchise; (2) solely by virtue of the City's ownership or
control of the Public Rights-of-Way or other public properties; and (3) solely by virtue of
the City's inspection or lack of inspection of Work in the Public Rights-of-Way.
The fact that Franchisee carries out any activities under this Franchise
through independent contractors shall not constitute an avoidance of or defense to
Franchisee's duties of defense and indemnification under this Section 5.1.
5.1.2 Tender of Defense. Upon written notice from the City, Franchisee
agrees to assume the defense of any lawsuit, claim, or other proceeding brought against
any Indemnitee by any entity, relating to any matter covered by this Franchise for which
Franchisee has an obligation to assume Liability for and/or save and hold harmless any
Indemnitee. Franchisee shall pay all costs incident to such defense, including, but not
limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement
payments, and amounts paid in satisfaction of judgments. Further, said indemnification
obligations shall extend to claims that are not reduced to a suit and any claims which may
be compromised prior to the culmination of any litigation or the institution of any
litigation. The City has the right to defend and may participate in the defense of a claim
and, in any event, Franchisee may not agree to any settlement of claims financially affecting
the City without the City's prior written approval which shall not be unreasonably wittrheld.
Ifseparate representation to firlly protect the interests ofboth Parties is necessary, such as a
conflict of interest between the City and the counsel selected by Franchisee to represent the
City, Franchisee shall select additional counsel with no conflict with the City and shall
assume and be responsible for all costs, including attomeys' fees, for such additional
counsel.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L,L.C. -21
(May 26,2010)
5.1.3 Refusal to Accept Tender. In the event Franchisee refuses the
tender of defense in any suit or any claim, said tender having been made pursuant to the
indemnification clauses contained herein, and said refusal is subsequently determined by
a court having jurisdiction (or such other tribunal that the Parties shall agree to decide the
matter), to have been a wrongful refusal on the part of Franchisee, then Franchisee shall
pay all of the City's costs for defense of the action, including all reasonable expert
witness fees and reasonable attorneys' fees and the reasonable costs of the City, including
reasonable attorneys' fees of recovering under this indemnification clause because there
was a wrongful refusal on the part of Franchisee.
5.1.4 Title 5l V/aiver. THE FRANCHISEE WAIVES IMMUNITY
UNDER RCV/ TITLE 5I AND AFFIRMS THAT THE CITY AND THE FRANCHISEE
HAVE SPECIFICALLY NEGOTIATED THIS PROVISION, AS REQUIRED BY RCW
4.24.115, TO THE EXTENT IT MAY APPLY.
5.1.5 Inspection. Inspection or acceptance by the City of any Work
performed by Franchisee at the time of completion of Construction shall not be grounds
for avoidance of any of these covenants of indemnification.
5.2 Environmental Liabilit)'. See attached Exhibit "C"
5.3 Insurance Requirements. See attached Exhibit "D".
5.4 Financial Security. See attached Exhibit ooE" .
5.5 ParentalGuarantee. IntentionallyDeleted.
5.6 Contractors/Subcontractors. Franchisee contractors and subcontractors
performing V/ork in the Public Rights-of-Way shall comply with such bond, indemnity,
and insurance reqnirements as may be required by City code or regulations, or other
applicable Law. If no such requirements are set forth in the City code or regulations, the
Franchisee contractors and subcontractors shall comply with the requirements set forth in
attached Exhibit "F".
5.7 Liens. In the event that any City property becomes subject to any claims
for mechanics', artisans', or materialmen's liens, or other encumbrances chargeable to or
through Franchisee which Franchisee does not contest in good faith, Franchisee shall
promptly, and in any event within thirty (30) days, cause such lien claim or encumbrance
to be discharged or released of record (by payment, posting of bond, court deposit, or
other mcans), without çost to the City, and shall indemnifu the City against all costs and
expenses (including attorneys' fees) incurred in discharging and releasing such claim of
lien or encumbrance. If any such claim or encumbrance is not so discharged and
released, the City may pay or secure the release or discharge thereof at the expense of
Franchisee after first giving Franchisee five (5) business days' advance notice of its
intention to do so. Nothing herein shall preclude Franchisee's or the City's contest of a
claim for lien or other encumbrance chargeable to or through Franchisee or the City, or of
a contract or action upon which the same arose.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. . 22
(May 26,2010)
5.8 Financial Conditions.
5.8.1 Franchise Fees
5.8.1.1 Franchise Fee. Commencing upon the Effective Date,
Franchisee shall pay to the City quarterly, on or before the thirtieth (30th) day of each
January, April, July, and October, a sum equal to five percent (5%) or greater of Gross
Revenues, as defined herein (the "Franchise Fee"). Franchise Fees associated with the
Gross Revenues in annexed areas shall be paid to the City starting on the effective date of
annexation; provided that, the City may, in its sole discretion, agree to accept a
reasonable estimate of such Franchise Fees, subject to adjustment, in the event that
Franchisee has not identified and correctly associated all service addresses with the
Franchise Service Area within the Annexation Area. Revenues that are derived as a
portion of a national or regional service shall be computed on a per Subscriber basis if
such determination cannot be achieved by other means. The City may raise the Franchise
Fee, if so permitted by federal and state law. Prior to implementation of any increase in
Franchise Fees, the Franchisee may request, and shall be granted, a public hearing by the
City Council to discuss the benefits of said increase to the citizens of Kent. Upon a
finding of the City Council that such increase is reasonably required to meet community
needs, taking into consideration the cost of providing such increase, the City Council may
require the implementation of such increase in accord with the provisions of this
Franchise.
5.8.1.2 Technology Fees The Parties acknowledge and
understand that: (a) the proposed Cable System and the anticipated methods for
Construction (micro-trenching) are relatively new technologies and methods; (b) the City
has no experience with such a Cable System or the proposed Construction methods, and
is unaware of the short or long term viability of providing cable and other services using
such a Cable System, or the short or long term impacts of such Construction methods
upon the Public Right-oÊWay and the City's obligations to manage and maintain the
Public Right-of-V/ay; (c) the Franchisee has not previously deployed such a Cable
System in the continental United States; (d) the Franchisee will receive significant benefit
from deploying its Cable System and establishing its ability to deliver cable and other
services to Subscribers; (e) the City has the right to deny a cable franchise to an applicant
that cannot show that it has the legal, technical, and financial qualifications to Construct
and maintain a Cable System; (f) the City has agreed to a narrow definition of Gross
Revenues to include only Subscriber revenues and to exclude from this definition certain
other gross revenues from Subscribers that may be subject to Franchise Fees, such as
revenues collected for payment of FCC regulatory fees, and accordingly the City has
agreed to reduce its potential Franchise Fee assessment; and, (g) the Franchisee as well as
the City will benefit from a City investment in, and use and promotion ot
communications technology and infrastructure, and the maintenance and operation of the
same, and that toward that end, the Parties will benefit from a consistent and stable
source ofrevenue.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L,L.C, -23
(May 26,2010)
In consideration of the foregoing, Franchisee agrees that,
commencing upon the Effective Date, Franchisee shall, at the same time its pays its
Franchise Fees, pay to the City a sum equal to five percent (5%) of all gross revenues
derived directly or indirectly from NonCable Services provided over the Cable System
(the "Technology Fee").
For purposes of this Section 5.8.1.2,'ogross revenue" shall mean
and refer to any and all cash, credits, property, or consideration ofany kind or nature that
constitutes revenue. Technology Fees associated with the gross revenues in annexed
areas shall be paid to the City starting on the effective date of annexation; provided that,
the City may, in its sole discretion, agree to accept a reasonable estimate of such
Technology Fees, subject to adjustment, in the event that Franchisee has not identified
and correctly associated all service addresses within the Franchise Service Area within
the Annexation Area.
The City agrees that between forty percent (40%) and forty-five
percent (45%) of the revenues derived from the Technology Fee will be restricted to
funding City investment in, and use and promotion of, information technology and
infrastructure, and the maintenance and operation of the same.
The Parties agree that the Franchisee's obligations set forth in this
Section 5.8.I.2 (Technology Fees) are material terms and conditions of this Franchise,
and the Franchise cannot be reformed in the event that the Franchisee's obligations
hereunder are held to be illegal, invalid, or unconstitutional for any reason by any court or
agency of competent jurisdiction.
5.8.1.3 Late Payment. Any quarterly Franchise Fee, Technology
Fee, or PEG Fee not paid by the Franchisee within thirty (30) days of the end of a quarter
shall bear interest as set forth at Section 5.8.10 herein.
5.8.1.4 Financial Reports. Each Franchise Fee, Technology Fee,
and PEG Fee payment shall be accompanied by a legible financial report consisting at a
minimum of Franchisee's Franchise Fee, Technology Fee, and PEG Fee payment
worksheet and year-to-date totals worksheet showing the bases for the Franchisee's
computation and separately indicating revenues received by the Franchisee within the
City from Basic Service, pay TV service, NonCable Services, other applicable sources of
revenue, and such other information directly related to confirming the amount of the
Franchisee's Gross Revenues (including gross revenues from NonCable Services) as may
be reasonably required by the City. The financial report shall also be provided to the City
eloctronically in Excel format, or another electronic format acceptable to the City. The
City shall have the right to require further supporting information for each Franchise Fee,
Technology Fee and PEG Fee payment, or in connection with a City audit pursuant to
Section 5.8.1.4 below, and, in that event, Franchisee shall provide such information
within fourteen (14) calendar days of receipt of the request, unless extended by mutual
agreement of the Parties. The Franchisee shall be responsible for providing the City all
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMLINICATIONS, L.L.C. -24
(May 26,2010)
records necessary to confirm the accurate payment of Franchise Fees, Technology Fees,
and PEG Fees. The Franchisee shall maintain such records for six (6) years.
5.8.1.5 Audit bv City. The City shall have the right, upon
reasonable notice of no less than five (5) working days, to inspect, examine, audit, review
andlor obtain copies of the papers, books, accounts, documents, maps, plans and other
records (collectively the "Records") of Franchisee pertaining to all revenue derived by
Franchisee and Affiliates from the operation of the Cable System in order to verify the
accuracy of payments under this Article 5 (hereinafter ooAudit"). Franchisee shall fully
cooperate in making available its Records and otherwise assisting in these activities. Any
Records that are not available to the City, or its agents conducting the Audit, within fifty
(50) miles of the City, shall be made available at City offices, or in the altemative, the
Franchisee can fund the cost to the City of accessing such Records at another location
reasonably agreed to by the Parties. The City shall extend the time for the provision of
such Records upon a reasonable showing by Franchisee that such extension is justified.
In the event that such Audit discloses a discrepancy of more than five percent (5oá)
between the financial report submitted by the Franchisee with a quarterly payment and
the actual Gross Revenues collected by the Franchisee that are subject to the Franchise
Fees, Technology Fees, or PEG Fees, the Franchisee agrees to pay to the City the costs of
such Audit; provided that, (a) the City will not be entitled to reimbursement of such Audit
costs more than once in any five (5) year period, and (2) the total reimbursement to the
City in any five (5) year period for the Audit costs shall not exceed one hundred and fifty
percent (150%) of the amount of the discrepancy. In the event that such Audit results in a
determination that additional Franchise Fees, Technology Fees, or PEG Fees are due the
City, the Franchisee further agrees to pay interest as required for late payment on such
additional fees computed from the date on which such additional Franchise Fees,
Technology Fees, or PEG Fees were due and payable.
5.8.1.6 Non-waiver. Acceptance of any fee payment by the City
shall not be construed as an agreement by the City that the fee paid is in fact the correct
amount, nor shall acceptance of payment by the City be construed as a release or waiver
of any claim the City may have for further or additional sums payable under the
provisions of this Franchise.
5.8.1.7 Taxes. Nothing in this section shall limit the
Franchisee's obligation to pay applicable local, state, or federal taxes.
5.8.1.8 Bundled Services. If Franchisee bundles Cable Service
with NonCable Services, Franchisee agrees that it will not intentionally or unlawfully
allocate such revenue for the pu{pose of evading the franchise fee payments under this
Agreement. In the event that the Franchisee or any Affiliate shall bundle, tie, or combine
Cable Services (which are subject to the franchise fee) with NonCable Services (which
are not subject to the franchise fee), so that Subscribers pay a single fee for more than one
class ofservice or receive a discount on Cable Services, a reasonable pro rata share ofthe
revenue received for the bundled, tied, or combined services shall be allocated to Gross
Revenues for purposes of computing the franchise fee. To the extent that charges can be
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. . 25
(May 26,2010)
calculated on a stand alone rate and it is practicable to do so, the pro rata share shall be
computed on the basis of the published charge for each of the bundled, tied, or combined
services, when purchased separately. However, in the event that legislation or
regulations require sarne, the Parties agree that tariffed telecommunications services that
cannot be discounted under state or federal law or regulation are excluded from the
bundled discount allocation obligations in this Section. Nothing in this Section 5.8.1.8 is
intended to or shall be construed as constituting a waiver of the City's right to require
Franchisee to seek and obtain a franchise, license, or other agreement from the City to
use the Cable System or any part thereof to provide NonCable Services.
5.8.2 Reimbursement of Direct Costs of Issuance. Renewal" Amendment
and Administration. Franchisee shall reimburse the City for the City's Direct Costs relating
to the issuance, renewal, amendment (if requested by or for the benefit of the Franchisee)
and administration of this Franchise; provided that, to the extent that Franchisee considers
such fees, or any portion thereof, to be franchise fees, Franchisee shall give notice and a
detailed explanation in writing of such determination by the Franchisee and the basis
therefore at the time of acceptance of this Franchise. Franchisee's obligations hereunder
shall not exceed $200,000 except as provided at Section 5.8.13 (Adjustment for Inflation)
herein.
5.8.3 Direct Costs of
Franchisee shall reimburse the City its Direct Costs of design review and approvals,
inspections, and other Direct Costs associated with processing a Permit application, to the
extent that such Direct Costs are not included in the costs for issuance of and compliance
with a Permit. Approvals and inspection, by way of example and not limitation, include
review of Design Documents and inspection for compliance with Standards and 100%
Design Submittal. Franchisee agrees that such costs are incidental costs. Except as
provided pursuant Section 5.8.13 (Adjustment for lnflation), Franchisee's obligations
hereunder shall not exceed $200,000 for each permit application; provided that, for a master
permit, the obligations over the life of the master permit shall not exceed $1,000,000.
5.8.4 Pcimhrrrsamenf of Direct Costs of À l+o'.i-- Þ"Llin P ichfc-nf-\l/or¡
Franchisee shall reimburse the City for the Direct Costs incurred by the City in planning,
designing, constructing, installing, repairing, maintaining, or altering any City
infrastructure, structure, or facility as the result of the actual or proposed presence in the
Public Rightof-Way of Franchisee's Facilities. Such costs and expenses shall include,
but not be limited to, the Direct Costs of City personnel and contractors utilized to
oversee or engage in any work required as the result of the presence of Franchisee's
Facilities in the Public Right-oÊWay, and any time spent reviewing Construction plans in
ordcr to cithcr accomplish thc installation, Construction, or relocation of Franohisee's
Facilities or the changes to any public utilities or Public Rights-of-V/ay so as not to
interfere with Franchisee's Facilities. Upon request, as a condition of payment by
Franchisee, all billing will be itemized so as to identifu specifically the Direct Costs and
expenses for each project for which the City claims reimbursement. A reasonable charge
for the actual cost incurred in preparing the billing may also be included in said billing.
Franchisee agrees that such costs are incidental costs.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. . 26
(May 26,2010)
5.8.5 Franchisee Responsibilitv for Costs. Except as expressly provided
otherwise in this Franchise, arry act that Franchisee, its contractors, or subcontractors are
required to perform under this Franchise shall be performed at their sole cost and
expense.
5.8.6 Franchisee V/ork Performed by the City. Any work performed by
the City that Franchisee has failed to perform as required pursuant to this Franchise and
which is performed by the City in accordance with the terms of this Franchise, shall be
performed at the cost and expense of the Franchisee. Franchisee shall be obligated to pay
the Direct Costs to the City of performing such work.
5.8.7 Taxes and Fees. Nothing contained in this Franchise Agreement
shall exempt Franchisee from Franchisee's obligation to pay any utility tax, business tax,
or ad valorem property tax, now or hereafter levied against real or personal property
within the City, or against any local improvement assessment imposed on Franchisee.
Any fees, charges, andlor fines provided for in the City code or any other City ordinance,
and any compensation charged and paid for the Public Rights-oÊV/ay, whether pecuniary
or in-kind, are separate from, and additional to, any and all federal, state, local, and City
taxes as may be levied, imposed, or due from Franchisee.
5.8.8 Itemized Invoice. Upon request by the Franchisee, City shall
submit an itemized billing so as to identi$ specifically the Direct Costs incurred by the
City for each project for which the City claims reimbursement.
5.8.9 Time for Payment. Except as provided at Section 5.8.1.1
(Franchise Fees) for payment of franchise fees, all non-contested amounts owing shall be
due and paid within thirty (30) days of receipt of invoice; provided that, in the event that
an itemized invoice is not provided at the time of receipt of invoice and the City receives
a request from Franchisee for an itemized invoice within thirty (30) days of receipt of
invoice, such amounts shall be due and paid within thirty (30) days of receipt of the
itemized invoice.
5.8.10 Overdue Payments. Any amounts payable under this Franchise by
Franchisee which shall not be paid upon the due date thereof, shall bear interest at arate
of eight percent (8%) per annum or whatever maximum amount is allowed under state
law, whichever is greater, from the due date until paid.
5.8.11 Contestine Charges. Franchisee may contest all or parts of
amounts owed within thirty (30) days of receipt of any invoice. The City shall
investigate Franchisee's contest, make appropriate adjustments to the invoice, if
necessary, and resubmit the invoice to Franchisee. Franchisee shall pay any amounts
owing as itemized in the resubmitted invoice within thirty (30) days of receipt of the
resubmitted invoice. However, Franchisee does not waive its rights to take Legal Action
to challenge the amount of the invoice.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C, -27
(May 26,2010)
5.8.12 Receivables. Either Party hereto may assign any monetary
receivables due them under this Franchise; provided, however, such assignment shall not
relieve the assignor of any of its rights or obligations under this Franchise.
5.8.13 Adjustment for Inflation. The amounts specified in Sections 5.8.2
and 5.8.3 herein shall be adjusted for inflation on March 1,2015 and every five (5) years
thereafter, e.g., 2020, 2025, etc., throughout the term of this Franchise, including each
extension thereof. Said inflationary adjustment shall be based upon the cumulative
annual average increase in the all urban consumers consumer price index ("CPI-U") for
the Seattle lTacoma/Bremerton area, as published by the United States Bureau of Labor
Statistics, for the preceding five (5) years. For example, if the annual average inflation
for 2010 was 0.9Vo,2011 was 1.5yo,2012 was 2.2Yo,2013 was 3.lyo, and 2014 was
3.3yo, the rate of inflationary adjustment applicable on MarchI,2015 would be the sum
of 0.9 + 1.5+ 2.2+ 3.1 + 3.3: l1%o. The adjustment shall apply regardless of when a
Permit was applied for and shall apply, in the future, to the adjusted amounts.
AND
6.1 Communication and Discussion. The Parties are full y committed to
working with each other throughout the term of this Franchise and agree to communicate
regularly with each other at all times so as to avoid or minimize Disputes. The Parties
agree to act in good faith to prevent and resolve potential sources of conflict before they
escalate into a Dispute. The Parties each commit to resolving a Dispute in an amicable,
professional, and expeditious manner.
6.2 Remedies. The Parties have the right to seek any and all available
remedies, including without limitation, the following, singly or in combination, in the
event ofa Breach:
6.2.I Specific Performance. Each Party shall be entitled to specific
performance of each and every obligation of the other Party under this Permit without
any requirement to prove or establish that such Party does not have an adequate remedy
at law. The Parties hereby waive the requirement of any such proof and acknowledge
that either Party would not have an adequate remedy at law for the commission of a
Breach hereunder;
6.2.2 Injunction. Each Party shall be entitled to restrain, by injunction,
an actual or threatened Breach and to obtain a judgment or order specifically prohibiting
a violation or Breach of this Franchise without, in either case, being required to prove or
establish that such Party does not have an adequate remedy at law. The Parties hereby
waive the requirement of any such proof and acknowledge that the other Party would not
have an adequate remedy at law of a Breach hereunder; andlor
6.2.3 Alternative Remedies. Except as otherwise provided herein,
neither the existence of other remedies identified in this Franchise nor the exercise
thereof shall be deemed to bar or otherwise limit the right of either Party to coÍrmence an
action for equitable or other relief, and/or proceed against the other Party and any
guarantor for all direct monetary damages, costs, and expenses arising from the Default
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. . 28
(May 26,2010)
and to recover all such damages, costs, and expenses, including reasonable attorneys'
fees.
6.2.4 Damases. Except as otherwise provided or limited herein, each
Party shall be entitled to commence an action at law for monetary damages or seek other
equitable relief.
Remedies are cumulative; the exercise of one shall not foreclose the
exercise of others. No provision of this Franchise shall be deemed to bar the City from
seeking appropriate judicial relief. Neither the existence of other remedies identified in this
Franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of
either Party to recover monetary damages, as allowed under applicable law, or to seek and
obtain judicial enforcement by means of specific performance, injunctive relief, mandate, or
any other remedy at law or in equity. The City specifically does not, by any provision of
this Franchise, waive any right, immunity, limitation or protection otherwise available to the
City, its officers, officials, City Council, Boards, commissions, agents, or employees under
federal, state, or local law.
6.3 Termination/Revocation. ln addition to the remedies available to the City as
provided at Law, in equity, or in this Franchise, upon a Material Breach, the City may
terminate this Franchise in accordance with the procedures set forth in Ch. 7.12 KCC. If for
any reason no such procedures are specified in Ch. 7.12. KCC, the following procedures
shall be implemented.
6.3.1 Notice. Prior to termination of the Franchise, the City shall give
written notice to the Franchisee of its intent to terminate the Franchise and the proposed
effective date of such termination, which date shall be no less than sixty (60) days following
the effective date of the notice. The notice shall set forth the exact nature of the Material
Breach. If Franchisee objects to such termination, Franchisee shall object in writing within
fifteen (15) business days of the effective date of the notice, and state its reasons for such
objection and provide any explanation and mitigating circumstances. The Mayor shall
consider the Franchisee's objections and may, in his or her sole discretion, either, (1) deny
the objection, in which case the termination shall be effective upon the date set forth in the
notice, (2) modifr the notice of termination, (3) rescind the notice of termination, or (4) set a
public hearing for the City Council's consideration in accordance with the procedures set
forth below.
6.3.2 Hearine. ln the event the Mayor determines lhat a public hearing
should be held, the City may then seek a termination of the Franchise in accordance with
this subsection.
6.3.2.1 The City Council shall conduct a public hearing to determine
iftermination of the Franchise is warranted.
6.3.2.2 At least thirty (30) days prior to the public hearing, the City
Clerk shall issue a public hearing notice that shall establish the issue(s) to be addressed in
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. -29
(May 26,2010)
the public hearing; provide the time, date, and location of the hearing; provide that the City
Council shall hear any Persons interested therein; and provide that the Franchisee shall be
afforded a fair opportunity for fulIparticipation, including the right to introduce evidence, to
require the production of evidence, to be represented by counsel, and to question witnesses.
6.3.2.3 V/ithin thirry (30) days after the close of the hearing, the City
Council shall issue a written decision regarding the termination of the Franchise.
6.3.3 Decision to Terminate. The City Council may, by way of example
and not limitation, consider the following factors when determining whether or not to
terminate:
6.3.3.1The history of non-compliance by Franchisee with material
terms and conditions of this Franchise;
6.3.3.2 'Whether other remedies will achieve compliance with this
Franchise
6.3.3.3 Whether the Franchisee has acted in good faith;
6.3.3.4 Whether the type of services provided by the Franchisee will
be available to the general public through other providers; and
6.3.3.5 Whether the City and Franchisee have exercised reasonable
and diligent efforts to engage in good faith negotiations in an attempt to resolve the
Dispute.
6.4 Right to Cure Breach.
6.4.1 Notice. If a Party believes that the other Party is in Non-Material
Breach, such Party shall give written notice to the Noticed Party stating with reasonable
specificity the nature of the alleged Non-Material Breach. The Noticed Party shall have
thirty (30) days, or such lesser or greater time as specified in the notice, from the receipt of
such notice to:
6.4.1.1Cure the Breach to the reasonable satisfaction of the non-
breaching Party; or
6.4.1.2 Notifu the other Party that the Noticed Parly cannot cure the
Brcach within thc timc providcd in thc noticc, bccausc of thc naturc of thc Brcach. In thc
event the Breach car¡rot be cured within time provided in the notice, the Noticed Party shall
promptly take all reasonable steps to cure the Breach to the satisfaction of the non-breaching
party and notifu the other Party in writing and in detail as to the exact steps that will be
taken and the projected completion date. In such case, the other Party may set a meeting to
determine whether additional time beyond the time provided in the notice is indeed needed,
and whether the Noticed Party's proposed completion schedule and steps are reasonable.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 30
(May 26,2010)
6.5 Assessment of Liquidated Damages.
6.5.1 The Public Rights-of-Way are critical to the travel of persons and
the transport of goods and other tangibles in the business and social life of the community
by all citizens; are used by the City to provide critical services to its citizens, including
electric, water, and sewerage services, services to protect public safety, and other public
utilities; and are often used by the City to provide communications and other services to
itself and other government agencies. Further, Public Rights-oÊWay arc a valuable and
scarce community resource physically limited in dimension requiring the City to manage
them for the most efficient and best use and to minimize the costs to the taxpayers arising
from secondary uses; to protect against foreclosure of future economic expansion because
of premature exhaustion of the Public Rights-of-V/ay as an economic resource; and to
minimize the inconvenience to and negative effects upon the public from such Facilities'
Construction, emplacement, relocation, and maintenance in the Public Rights-of-Way.
The failure of service providers, including Cable Service operators, to abide by
Public Rights-of-V/ay management standards, customer service standards, public access
requirements, and Cable System requirements, as set forth in franchise agreements and
local codes, and the failure of local government to adequately control Public Rights-of-
Way, can lead and has led to damage to the use of the Public Rights-oÊV/ay and other
property interests, such as:
(a) Explosion of facilities in the Public Rights-of-V/ay;
(b) Forced evacuation of homes;
(c) Spillage of raw sewage;
(d) Broken water mains resulting in flooding and damage to property;
(e) Severing of communications and power lines;
(Ð Intemrption of emergency services, including emergency
communications systems;
(g) Damage to public streets and sidewalks;
(h) Hazards from improperly installed overhead facilities;
(Ð Excavations made without notice to the City;
(j) Excavations and restorations done in violation of community
standards;
(k) Use of improper materials and methods in restoring utility street
cuts;
(l) Slow repairs that inconvenience the traveling public;
(m) Poor workmanship in trench reinstatement and pavement restoration;
(n) Public dissatisfaction with traffic delays and intemrpted utility
service;
(o) Disruption of adjoining public f,acilities, such as gutters and
sidewalks;
(p) Damage to adjoining utility facilities disturbed by improper
excavation;
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 3I
(May26,2010)
(q) Increased maintenance costs from pavements repeatedly cut to
access utilities;
(r) Increased dangerto the public and excavators;
(Ð Street cuts into the Public Rights-of-V/ay that significantly reduce
the average life of the street;
(t) Unnecessary reduction in capacity of the Public Rights-of-Way for
other public service utilities;
(u) Inferior, poor quality, and discriminatory provisioning of Service to
customers and rate-payers; and
(v) Unreasonable rates for services charged to consumers.
The Parties explicitly represent that it will be impractical and/or difficult to ascertain
or quanti$ the amount of damages which may be incurred by the City as a result of any
failure by Franchisee to comply, or maintain compliance, with the provisions of this
Franchise as enumerated below, and further acknowledge and agree that the City will be
damaged as a result of such a Breach(es). Therefore, the City and Franchisee agree that the
liquidated damages set forth in subsection 6.5.3 are a reasonable estimate of the damages
resulting from a Breach of those provisions of this Franchise set forth therein. If the City
exercises its right to impose liquidated damages, such damages shall be the City's sole and
exclusive remedy for recovery of the loss resulting from such Breach. Nothing in this
subsection is intended to preclude the City from exercising any other right or remedy with
respect to other losses not compensated by liquidated damages, including, without
limitation, the right to seek specific performance.
6.5.2 Pursuant to the requirements outlined herein, liquidated damages
shall not exceed the amounts set forth in Section 6.5.3.
6.5.3 If the Franchisee has failed to cure in accordance with Section 6.4
herein, or otherwise in the event of a Material Breach without opporlunity to cure, liquidated
damages may be imposed by the City as set forth below for each day beyond the cure
period, or the effective date of notice of Material Breach without opportunity to cure, that
the Franchisee is in Material Breach:
6.5.3.1 Failure to comply with the Cable Service Requirements in
Section 8.1: $500 per day for each separate violation;
6.5.3.2 Failure to comply with the System Facility Requirements in
Section 8.2: $500 per day for each separate violation;
6.5.3.3 Failure to comply with tho PEG requirements of Section 8.3:
$500 per day for each separate violation;
6.5.3.4 Failure to meet customer service requirements set forth in
Section 8.6: $250 per day for each separate violation; provided that, such failure does not
arise from an event of Force Majeure or through the fault of the City;
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C, - 32
(May 26,2010)
6.5.3.5 Failure to timely respond to any request by the City for
information pursuant to Section 5.8.1.5 of this Franchise. Timely response shall mean that
the Franchisee has provided the requested records within the time period set forth at Section
5.8.1.5 of this Franchise, or, to the extent that any such records are not immediately
available, providing such requested records within a time frame approved to by the City:
$100 per day or part thereof. A violation will continue to occur until the City is satisfied
with the information provided by Franchisee;
6.5.3.6 Failure to comply with a material requirement of the
following Sections of this Franchise: 2.7 (Transfer);4.5 (Effect of Expiration/Termination);
5.3 (tnsurance Requirements); 5.4 (Financial Security); 7.4.1 (Permits Required);1.5.3
(Work Subject to Inspection); 7.7.5 (Dangerous Conditions, Authority for City to Abate);
7.5.6 (Emergency Permits); 7.5.7 (Stop WorÐ; 7.8 (Facility Relocation at Request of the
City); andT.Il (Record of Installations), all in the amount of $500 per day for each separate
and continuing failure to timely comply; and
6.5.3.8 All other violations of the Franchise which constitute an
imminent threat to the public health, safety or welfare, $500 per day per occurrence for each
day or part thereofthat such violation occurs or continues.
The Franchisee and the City agree that any of the above described violations, unless
excused, would constitute failure to comply with a material provision of the Franchise.
The liquidated damage amounts listed in this Section shall be adjusted as necessary
to compensate for inflation based upon the Consumer Price Index customarily used by the
City for such purposes. No penalty, bond, forfeiture, or termination shall be imposed for
delays where such delays are the result of causes beyond the control and/or without fault or
negligence of the Franchisee, as determined by the City. The Franchisee shall be entitled to
an extension of time if compliance with the Franchise is suspended or delayed by the City,
or where unusual weather, acts of God (e.g., earthquakes, floods, etc.), extraordinary acts of
third parties, or other circumstances that are beyond the control of the Franchisee delay
progress, provided that the Franchisee has not, through its own actions or inactions,
substantially contributed to the delay. The amount of time allowed shall be determined by
the Cþ and the Franchisee. The extension of time in any case shall not be less than the
extent of the actual non-contributory delay experienced by the Franchisee. If payment of
any of these penalties is delinquent by three (3) months or more, the City may require partial
or total forfeiture of performance bonds or other surety.
In addition, and without waiving any other remedies provided by Law, the City may
prosecute any violation of this Franchise as a civil violation u:rder Kent City Code Chapter
1.04 for r,vhich a monetary penaþ may be assessed and abatement may be required and/or
otherwise enforced as provided therein.
6.6 Receivership. At the option of the City, subject to applicable Law and
lawful orders of courts ofjurisdiction, this Franchise or any Permit may be revoked after the
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. -33
(May26,2010)
appointment of a receiver or trustee to take over and conduct the business of Franchisee
whether in a receivership, reorganization,bankruptcy, or other action or proceeding, unless:
6.6.1 The receivership or trusteeship is timely vacated; or
6.6.2 The receiver or trustee has timely and fully complied with all the
terms and provisions of this Franchise, and has remedied all defaults under the Franchise.
Additionally, the receiver or trustee shall have executed an agreement duly approved by the
court having jurisdiction, by which the receiver or trustee assumes and agrees to be bound
by each and every term, provision, and limitation of this Franchise.
ONS UPON USE OF PUBLIC zuG
7 .l Permits. If Franchisee has submiued an application for a Permit to perform
work in the Public Rights-of-V/ay, the City shall, to the extent practicable, consider such
application contemporaneously with the design review requirements hereunder.
7.2 Submission/Approval of Design Submittal
7 .2.1 Submission. At the time of application for a Permit, or in the event
that Franchisee seeks to alter or change the location of the Facilities in the Franchise
Area, Franchisee shall provide the City with 100% Design Submittal for review and
approval of any Cable System Construction, alteration, or change of location within the
proposed Franchise Area.
7.2.2 Use of Public Rights-oÊWay. Within parameters reasonably related
to the City's role in protecting the public health, safety, and welfare and management of the
Public Rights-oÊWay, and except as may be otherwise preempted by Law, the City may
require that Facilities be installed at a particular time, at a specific place, or in a particular
maffrer as a condition of access to the proposed Franchise Area, and may deny access if
Franchisee is not willing to comply with such requirements; and, may remove, or require
removal of any Facility that is not installed in compliance with the requirements
established by the City or which is installed without prior City approval of the time,
place, or manner of installation.
7.2.3 Approval of Plans. Work may not commence without prior
approval by the City of the 100% Design Submittal submitted by the Franchisee. The
City may review and approve the Franchisee's 100% Design Submittal with respect to:
7.?.3.1 Location/Alignment/Depth;
7.2.3.2 The manner in which the Facility is to be installed;
7.2.3.3 Measures to be taken to preserve safe and free flow of
traffrc;
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMLINICATIONS, L,L,C, -34
(May 26,2010)
7.2.3.4 Structural integrity, functionality, appearance, and
compatibility with and impact upon roadways, bridges, sidewalks, planting strips, street
lights, signals, traffic control signs, intersections, or other facilities and structures;
7.2.3.5 Ease of future road maintenance, and appearance of the
roadway
7.2.3.6 Compliance with applicable Standards and codes; and
7.2.3.7 Compliance and compatibility with the City's six (6)-year
transportation plan, capital improvement plan, transportation master plan, comprehensive
water plan, comprehensive sewer plan, drainage master plan, comprehensive master plan
and related documents, and regional transportation improvement plans.
7.3 Compliance With Standards/Codes. Except as may be preempted by federal
or state Laws, all Facilities shall conform to and all Work shall be performed in
compliance with the following 'oStandards" as now enacted or as may be hereafter
revised, updated, amended, or re-adopted:
7.3.1 Construction Standards. The applicable provisions of the current and
any subsequent edition ofthe City of Kent Design and Construction Standards;
7.3.2 Road and Bridge Standards. The current and any subsequent
edition of the Standard Specifications for Road, Bridge and Municipal Construction as
prepared by the V/ashington State Department of Transportation ("WSDOT") and the
Washington State Chapter of American Public'Works Association ("APWA");
7.3.3 MUTCD. The Federal Highway Administration Manual of Uniform
Traffic Control Devices ("MUTCD"), âs amended by the Washington State Department
of Transportation;
7.3.4 Special Conditions. Requirements and standards set forth as special
conditions;
7.3.5 City Regulations. The Kent City Code, including but not limited to
KCC Ch. 6.06, CW ordinances, and regulations adopted by the City Engineer or Public'Works Director establishing standards for placement of Facilities in Public Rights-of-
Way, including by way of example and not limitation, the specific location of Facilities in
the Public Rights-of-Way. This shall also include any street design standards that the Cþ
shall deem necessary to provide adequate protection to the Public Rights-of-Way, its safe
operation, appearance, and maintenance;
7.3.6 Other Regulatory Requirements. Applicable requirements of
federal or state governmental authorities that have regulatory authority over the
placement, Construction, or design of Franchisee Facilities;
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMLINICATIONS, L.L.C. - 35
(May26,2010)
7.3.7 Industry Standards. All Facilities shall be durable and Constructed
in accordance with good engineering practices and standards promulgated by the
govemment and industry for placement, Construction, design, type of materials, and
operation of Franchisee Facilities;
7.3.8 Safety Codes and Regulations. Franchisee Facilities and V/ork shall
comply with all applicable federal, state, and City safety requirements, rules, regulations,
Laws, and practices. By way of illustration and not limitation, Franchisee shall comply with
the National Electrical Safety Code and the Occupational Safety and Health Administration
(OSHA) Standards, and all regulations enforced by the Department of Labor and Industry;
and
7.3.9 Building Codes. Franchisee Facilities and V/ork shall comply with
all applicable City building codes.
7.4 Conditions Precedent to 'Work.Except as may be otherwise required by
applicable City code, rule, regulation, or Standards, Franchisee shall comply with the
following as a condition precedent to Work:
7.4.I Permits Required. Prior to performitrg any Work in the Public
Rights-of-V/ay requiring a Permit, Franchisee shall apply for, and obtain, in advance, such
appropriate Permits from the City as are required by ordinance or rule. Franchisee shall pay
all generally applicable and lawful fees for the requisite Crty Permits; and
7.4.2 Compliance V/ith Franchise. Franchisee shall be in material
compliance with the Franchise, including by way of example and not limitation, payment
of fees invoiced to Franchisee for City reimbursable costs and expenses related to review
and approval of the Permit, proof of insurance, and proof of financial guarantees.
Nothing herein shall prevent the Franchisee from seeking expedited approval
from the City for issuance of required Permits in the mamer and in accordance with the
processes and fee schedules as set forth in the Kent City Code or in City policies or
procedures for expediting Permit approval. In the event expedited review is granted, the
City shall use its best efforts to expedite the review required herein to the extent that such
review is independent of issuance of a Permit.
7.5 V/ork in the Public Rights-of-V/ay.
7.5.1 Least Interference. Work in the Public Rights-of-V/ay shall be done
in a monner thot does not unnecessarily hinder or obstruot the freo use of the Publio Rights-
oÊV/ay or other public property and which causes the least interference with the rights and
reasonable convenience of property owners, businesses, and residents along the Public
Rights-of-Way. Franchisee Facilities shall be designed, located, aligned, and Constructed
so as not to disturb or impair the use or operation of any street improvements, utilities,
and related facilities of City or City's existing lessees, franchisees, franchises, easement
beneficiaries or lien holders, without prior written consent of the City or the parties
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMLINICATIONS, L.L,C, -36
(May 26,2010)
whose improvements are interfered with and whose consent is required pursuant to
agreements with the City existing prior to the Effective Date. Franchisee's Facilities shall
be designed, located, aligned, and Constructed in such a manner as not to interfere with
any planned utilities. For purposes of this Section, o'planned" shall mean utilities which
the City intends to construct in the future, which intent is evidenced by the inclusion of
said utility project in the Capital Improvement Program, a comprehensive utility plan, a
transportation improvement plan, the City's Comprehensive Plan, or other written
Construction or planning schedules.
7.5.2 Prevent Injur.v/Safetv. All Construction Work shall be performed
in a manner consistent with high industry standards.
7.5.3 Work Subject to Inspection. The City may observe or inspect the
Construction Work, or any portion thereof, at any time to ensure compliance with the
applicable Permits, this Franchise, applicable Law, the applicable approved 100% Design
Submittal, the Standards, and to ensure the Work is not being performed in an unsafe or
dangerous manner.
7.5.4 Publicizing Work.
7.5.4.1 Notice to Private Propertv Owners. Except in the case of an
Emergency, Franchisee shall give reasonable advance notice to private property owners and
tenants of Construction Work on or adjacent to such private properly if the City or
Franchisee reasonably anticipates such'Work will materially disturb or disrupt the use of
such private property.
7.5.4.2Notice to the Public. Except in the case of an Emergency,
the Franchisee shall notiS the public and the City prior to commencing any significant
planned Construction that Franchisee and/or the City reasonably anticipates will
materially disturb or disrupt public property or have the potential to present a danger or
affect the safety of the public generally.
7.5.4.3 Additional Requirements. Work shall be publicized as the
City may reasonably direct, from time to time. The publication of V/ork may be used to
notiff the public and operators of other Cable Systems of the impending Work, in order
to minimize inconvenience and disruption to the public. The cost of publication shall be
bome by the Franchisee.
7.5.5 Work of Contractors and Subcontractors. Franchisee's contractors
and subcontractors performing V/ork in the Franchise Area shall be Franchised and
bonded in accordance with the City's and State's applicable regulations and
requirements. Any contractors or subcontractors performing Work within the Public
Right-of-Way on behalf of the Franchisee shall be deemed servants and agents of the
Franchisee for the purposes of this Franchise and are subject to the same restrictions,
limitations and conditions as if the Work were performed by Franchisee. Franchisee shall
be responsible for all V/ork performed by its contractors and subcontractors and others
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. . 37
(May 26,2010)
performing Work on its behalf as if the lV'ork were performed by it, and shall ensure that
all such Work is performed in compliance with this Franchise and other applicable laws,
and shall be jointly and severally liable for all damages and correcting all damage caused
by them. It is Franchisee's responsibility to ensure that contractors, subcontractors or
other Persons performing Work on Franchisee's behalf are familiar with the requirements
of this Franchise and other applicable laws governing the Work performed by them.
7.5.6 Emergency Permits. In the event that Emergency repairs are
necessary, Franchisee shall immediately noti$ the Public 'Works Director of the need for
such repairs. Franchisee may initiate such Emergency repairs, and shall apply for
appropriate Permits within forty-eight (48) hours after discovery of the Emergency. In the
event of an Emergency, a Franchisee may perform Emergency Work in the Public
Rights-of-V/ay without first securing a Permit for such Emergency 'Work, provided that:
(1) the Franchisee notifies the City in advance of the performance of such Emergency
Work and the type and location of such Work; (2) the Franchisee applies for a Permit on
the first business day following commencement of such Work; and (3) the Franchisee, at
its sole cost and expense, makes its Work performed in the Public Rights-of-Way
available for inspection to determine compliance with Laws and Standards.
7.5.7 Stop V/ork. On notice from the City that any Work does not comply
with the Franchise, the approved l00o/o Design Submittal for the Work, the Standards, or
other applicable Law, or is being performed in an unsafe or dangerous manner as
reasonably determined by the City, the non-compliant Work may immediately be stopped
by the City. The stop work order shall be in writing, given to the Person doing the 'Work,
posted on the Work site, indicate the nature of the alleged violation or unsafe condition, and
establish conditions under which Work may be resumed. If so ordered, Franchisee shall
cease the non-compliant Work and cause its contractors and subcontractors to cease such
activity until the City is satisfied that Franchisee is in compliance. If an unsafe condition
is found to exist, the City, in addition to taking any other action permitted under applicable
Law, may order Franchisee to make the necessary repairs and alterations specified therein
forthwith and to permanently correct the unsafe condition by a time established by the City.
The City has the right to inspect, repair, and correct the unsafe condition if Franchisee fails
to do so, and to reasonably charge Franchisee all associated costs.
7.5.8 Dedication of Cit)' Utilities/Public Improvements. Upon
substantial completion of Construction of the Facilities and any related restoration of or
improvements to or within the Public Rights-oÊV/ay, including without limitation, curbs,
gutters, sidewalks, underlayment, roadway surface, pipe, connectors, catch basins, or any
part thereof that will be dedicated to City ownership (collectively "Dedicated
Improvcmcnts"), and upon satisfaction of othcr applicablc conditions of thc City and this
Franchise, Franchisee shall submit a written request to the City for a final inspection and
acceptance of dedication of all Dedicated Improvements. The written iequest shall
certify that the 'Work is substantially complete. The Work shall be deemed to be
"substantially complete" when:
7.5.8.1 Complete record drawings are provided to the City;
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 38
(May 26,2010)
7.5.8.2 Franchisee has completely and accurately identified within
the record drawings the Dedicated Improvements;
7.5.8.3 The Dedicated Improvements are functioning to the
satisfaction of the City and, when appropriate, operationally tested;
7.5.8.4Franchisee has warranted in writing that the Work is
completed in conformance with the 100% Design Submittal approved by the City; except
for punch list items which do not substantially prevent the use of the Dedicated
Improvements or any component thereof for the purposes intended;
7.5.8.5 No other acts are necessary to assign ownership of any and
all Dedicated Improvements to the City free and clear of all liens and encumbrances;
7.5.8.6 Franchisee has assigned to the City any and all
manufacturer warranties of the Dedicated Improvements, if any; and
7.5.8.7 Franchisee, or its contractors or subcontractots, warrant the
Dedicated Improvements to be free from defects in design, manufacture, and
Construction for a period of two (2) yea"rs from the date that such Dedicated
Improvements are accepted by the City. This warranty shall not operate to waive, alter,
or diminish any rights the City may otherwise have under this Franchise, at Law, or in
equity.
Upon receipt of Franchisee's request for final inspection and dedication,
the City shall within twenty (20) business days thereafter arrange for a final inspection.
If the City determines that the Work with regard to the Dedicated Improvements is not
substantially complete, it shall promptly provide Franchisee with a written statement
indicating in adequate detail in what respects Franchisee has failed to substantially
complete the 'Work, or any component thereot or is otherwise in default, and what
measures or acts are necessary, in the opinion of the City, for Franchisee to take or
perform in order to substantially complete such Work. Upon receipt of such detailed
statement from the City, Franchisee shall undertake to complete the 'Work, cure the
alleged default in a manner responsive to the stated reasons for disapproval.
When the City is satisfied that the Work related to the Dedicated
Improvements is substantially coniplete, it will, by ordinance, resolution, or other lawful
means, accept ownership of such Dedicated Improvements and thereafter become
responsible for maintenance, repair, and replacement of the same.
7.6 Alterations. Except as may be shown in the 100% Design Submittal
approved by the City or the record drawings, or as may be necessary to respond to an
Emergency, Franchisee, and Franchisee's contractors and subcontractors, may not make
any material alterations to the Franchise Area, or pennanently affix anything to the
Franchise Area, without City's prior written consent. Material alteration shall include, by
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C, -39
(May 26,2010)
way of example and not limitation, a change in the dimension or height of the above
ground Facilities, or the addition of or change in configuration of an antenna. If
Franchisee desires to change either the location of any Facilities or otherwise materially
deviate from the approved design of any of the Facilities, Franchisee shall submit such
change to City in writing for its approval pursuant to Section 7.2 of this Franchise.
Franchisee shall have no right to commence any such alteration change until after
Franchisee has received City's approval of such change in writing.
7.7 GeneralConditions.
7.7.1 Right-oÊWa)¡ Meetings. Subject to receiving advance notice,
Franchisee shall make reasonable efforts to attend and participate in meetings of the City
regarding issues that may impact the Cable System.
7.7.2 Compliance Inspection. Franchisee's Facilities shall be subject to
the City's right of periodic inspection upon at least twenty-four (2a) hours' notice, or, in
case of an Emergency, upon demand without prior notice, to determine compliance with
the provisions of this Franchise or Permit or other applicable Law over which the City
has jurisdiction. Franchisee shall respond to requests for information regarding its
Facilities as the City may from time to time issue to determine compliance with this
Franchise, including requests for information regarding Franchisee's plans for
Construction and the purposes for which the Facility is being Constructed.
7.7.3 One Call. If Franchisee places Facilities underground, Franchisee
shall, at its own expense, continuously be a member of the State of Washinglon one
number locator service under Ch. 19.122 RCW, or an approved equivalent, and shall
comply with all such applicable rules and regulations. The Franchisee shall locate and
field mark its Facilities for the City, or its agents or contractors, at no charge.
7.7.4 Graffiti Removal. Within forty-eight (48) hours after notice from
the City, Franchisee shall remove any graffiti on any part of its Cable System, including,
by way of example and not limitation, equipment cabinets. If Franchisee fails to do so,
the City may remove the graffiti and bill the Franchisee for the reasonable cost thereof.
7.7.5 Dangerous Conditions. Authorit)' for Ci[¡ to Abate. Whenever
Construction of Facilities has caused or contributed to a condition that appears to
substantially impair the lateral support of the adjoining Public Right-of-Way, street, or
appurtenances, or public place, or endangers the public, any utilities, or City-owned
property, the City may reasonably require the Franchisee to take action to protect the
Public Right-of-Way, thc public, adjaccnt public placcs, and City-owncd propcrty,
streets, and utilities. Such action may include compliance within a prescribed time. In
the event that the Franchisee fails or refuses to promptly take the actions directed by the
City, or fails to fully comply with such directions, or if Emergency conditions exist which
require immediate action, the City may, to the extent it may lawfully do so, take such
actions as are necess¿rry to protect the Public Rights-of-V/ay, the public, adjacent public
places, and City-owned property, streets, and utilities, to maintain the lateral support
FRANCHISE AGREEMENT BETV/EEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 40
(May 26,2010)
thereof, or actions regarded as necessaÍy safety precautions; and the Franchisee shall be
liable to the City for the reasonable costs thereof.
7.7.6 No Duty. Notwithstanding the right of the City to inspect the
Work, issue a stop work order, and order or make repairs or alterations, the City has no
duty or obligation to observe or inspect, or to halt work on, the applicable Facilities, it
being solely Franchisee's responsibility to ensure that the Facilities are Constructed and
operated in strict accordance with this Franchise, the approved 100% Design Submittal,
the Standards, and applicable Law. Neither the exercise nor the failure by City to
exercise any right set forth in this Article 7 shall alter the liability allocation set forth in
this Franchise.
7.7.7 Roadside Hazard. All of Franchisee's Facilities shall be kept by
Franchisee at all times in a safe andhazard-free condition. Franchisee shall ensure that
Facilities within the Public Rights-of-Way do not become or constitute an unacceptable
roadside obstacle and do not interfere with or create ahazard to maintenance of and along
the Public Rights-oÊV/ay. In such event, or in the event that the City determines that a
Facility within the Public Rights-of-V/ay has become or constitutes an unacceptable
roadside obstacle, ormay interfere with or create ahazard to maintenance of and along
the Public Rights-of-Way, the Franchisee shall:
7.7.7.1If the hazard results from disrepair, repair the Facility to a
safe condition;
7.7.7.2 Relocate the Facility to another place within the Public
Right-of-Way or underground;
7.7.7.3 Convert the Facility to a break-away design;
7 .7 .7.4 Crash-protect the Facility;
7.7.7.5 Relocate the Facility to another location off the Public
Rights-of-V/ay; or
7.7.7.6In the event that the Facility is screened from view (i.e., not
readily visible from all directions by persons standing at ground level), remove or trim
vegetation in and around the Facility.
Franchisee, at all times, shall 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 Franchisee's agents or employees. Franchisee, at its own
expense, shall repair, renew, change, and improve its Facilities from time to time as may
be necessary to accomplish this purpose. Franchisee shall obtain the appropriate permits,
per subsection 7.4.1 above, for any activities within the Public Rights-of-IVay.
Franchisee shall use suitable barricades, flags, flaggers, lights, flares, and other measures
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L,C. - 4I
(May 26,2010)
as required for the safety of all members of the general public, and to prevent injury or
damagê to any person, vehicle or property by reason of such V/ork in or affecting such
Public Rights-of-V/ay or property. All excavations made by Franchisee in the Public
Rights-of-Way shall be properly safeguarded for the prevention of accidents.
7.7 .8 Verification of Alignment/Depth. Upon the reasonable request and
prior written notice, in non-Emergency situations with at least thirty (30) days' notice by
the City and in order to facilitate the location, alignment, and design of Public
Improvements, the Franchisee agrees to locate, and if reasonably determined necess¿try
by the City, to excavate and expose portions of its Facilities for inspection so that the
location of same may be taken into account in the improvement design; PROVIDED that,
Franchisee shall not be required to excavate and expose its Facilities unless the
Franchisee's record drawings and maps of its Facilities submitted pursuant to Section
7.lI of this Franchise are reasonably determined by the City to be inadequate for
pu{poses of this Subsection.
7.8 Facilit)¡ Relocation at Request of the City.
7.8.1 Public Project. The City may require Franchisee to alter, adjust,
relocate, or protect in place its Facilities within the Public Right-of-Way at Franchisee's
sole cost and expense when reasonably necessary for Construction, alteration, repair,
expansion, or improvement of any portion of the Public Rights-of-V/ay for purposes of
public welfare, health, or safety ("Public Improvements"). Such Public Improvements
include, by way of example but not limitation: Public Rights-of-V/ay Construction;
Public Rights-of-V/ay repair (including resurfacing or widening); change of Public
Rights-of-Way grade; Construction, installation or repair of sanitary sewers, storm drains,
water utility pipes, power lines, signal lines, communication lines, or any other type of
government-owned communications, utilþ or public transportation systems, public
work, public facility, or improvement of any government-owned utility; Public Rights-of-
'Way vacation; and the Construction of any public improvement or structure by any
governmental agency acting in a governmental capacity.
7.8.2 Alternatives. If the City requires Franchisee to relocate its
Facilities located within the Public Rights-of-Way, the City shall make a reasonable
effort to accommodate alternative locations for the Franchisee's Facilities within the
Public Rights-of-Way. The Franchisee may, after receipt of written notice requesting a
relocation of its Facilities, submit to the City written alternatives to such relocation. The
City shall evaluate such alternatives and advise the Franchisee in writing if one or more
of the alternatives are suitable. If so requested by the City, Franchisee shall submit
odditional information to assist the City in making suoh ovaluation. The City shall give
each alternative proposed by the Franchisee full and fair consideration, within a
reasonable time, so as to allow for the relocation Work to be performed in a timely
manner. In the event the City ultimately determines, in its sole discretion, that there is no
other reasonable alternative, the Franchisee shall relocate its Facilities as otherwise
provided in this Section 7.8. In the event that the City reasonably determines that it does
not have available resources to evaluate Franchisee's proposal, the City shall not be
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L,L,C, - 42
(May 26,2010)
obligated to further consider such proposal unless and until the Franchisee funds the
additional costs to the City to complete its evaluation; provided that, the City has
sufficient opportunity and time available to evaluate such proposals within the project
schedule.
7.8.3 Notice. The City shall notifu Franchisee as soon as practicable of
the need for relocation and shall specify the date by which relocation shall be completed.
Franchisee shall respond in writing to such notice within fourteen (14) calendar days of
receipt thereof, acknowledging receipt thereof, and stating its acceptance of the proposed
relocation date or proposing an alternate schedule. Failure of Franchisee to timely
respond shall be deemed an acceptance of the date specified in the notice upon which the
relocation must be complete. Except in case of Emergency, such notice shall be given no
less than ninety (90) calendar days prior to the date the relocation must be completed. In
calculating the date that relocation must be completed, the City shall consult with
Franchisee and consider the extent of Facilities to be relocated, the Service requirements,
and the Construction sequence for the relocation, within the overall project Construction
sequence and constraints, to safely complete the relocation.
Franchisee shall complete the relocation by the date specified, unless the
City, or a reviewing court, establishes a later date for completion, after a showing by the
Franchisee that the relocation cannot be completed by the date specified using best efforts
and meeting safety and Service requirements.
7.8.4 Coordination of Work. Franchisee acknowledges and understands
that any delay by Franchisee in performing the V/ork to alter, adjust, relocate, or protect
in place its Facilities within the Public Rights-of-Way may delay, hinder, or interfere
with the work performed by the City and its contractors and subcontractors in furtherance
of Construction, alteration, repair, or improvement of the Public Rights-of-Way, and may
result in damage to the City, including but not limited to, delay claims. Franchisee shall
cooperate with the City and its contractors and subcontractors to coordinate such
Franchisee Work to accommodate the public improvement project and project schedules
to avoid delay, hindrance of, or interference with such project.
7.8.5 Failure to Comply. Should Franchisee fail to alter, adjust, protect
in place or relocate any Facilities ordered by the City to be altered, adjusted, protected in
place, or relocated, within the time prescribed by the City, given the nature and extent of
the work, or if it is not done to the City's reasonable satisfaction, the City may, to the
extent the City may lawfully do so, cause such work to be done and bill the Direct Costs
of the work to the Franchisee, including all reasonable costs and expenses incurred by the
City due to Franchisee's delay. In such event, the City shall not be liable for any damage
to any portion of Franchisee's Cable System. In addition to any other indemnity set forth
in this Franchise, the Franchisee will indemnify, hold harmless, and pay the costs of
defending the City, from and against any and all claims, suits, actions, damages, or
liabilities for delays on Public Improvement Construction projects caused by or arising
out of the failure of the Franchisee to adjust, modiff, protect in place, or relocate its
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C, - 43
(May 26,2010)
Facilities in a timely manner; provided that, the Franchisee shall not be responsible for
damages due to delays caused by the City.
7 .8.6 Assignment of Rights. In addition to any other rights of assignment
the City may have, the City may from time to time assign or transfer to its contractors or
subcontractors its rights under Sections 7.8 or 7.10 of this Franchise to require Franchisee to
alter, adjust, relocate, or protect in place its Facilities within the Public Rights-of-Way.
Franchisee acknowledges and consents to such an assignment(s)/transfer(s) and agrees that
it is bound by all lawful orders issued by such assignee(s) of the City under color of
authority of such assignment(s)/transfer(s) as though such otders had been issued by the
City under the terms and conditions of this Franchise. Such assignmenltransfer is an
assignment/transfer of the City's contract rights under this Franchise and shall not in any
way be interpreted or construed as an assignment, transfer, delegation, or relinquishment of
the City's rights under its police powers to require Franchisee to alter, adjust, relocate, or
protect in place its Facilities within the Public Rights-oÊWay.
7.8.7 Reimbursement for Costs. Notwithstanding the cost allocation
provisions set forth in this Franchise, Franchisee does not waive its right(s) to and shall
be entitled to seek reimbursement of its relocation costs as may be otherwise specifically
set forth and authorized in statute.
7.9 Movement of Facilities for Others.
7.9.1 Private Benefit.If any alteration, adjustment, temporary
relocation, or protection in place of the Cable System is required solely to accommodate
the construction of facilities or equipment that are not part of a Public Improvement project,
Franchisee shall, after at least ninety (90) days advance written notice from the responsible
pnty, take action to effect the necessary changes requested by the responsible entity;
provided that, (a) the Party requesting the same pays for the Franchisee's time and material
costs associated with the requested work; (b) the alteration, adjustment, relocation, or
protection in place is reasonably necessary to accommodate such work; (c) the Person
requesting the alteration, adjustment, relocation, or protection in place considers altematives
in the same maruler as provided at subsection 7 .8.2; and (d) such alteration, adjustment, or
relocation is not requested for the purpose of obtaining a competitive advantage over the
Franchisee.
7.9.2 Temporar.y Chanees for Other Franchisees. At the request of any
Person holding a valid permit and upon reasonable advance notice, Franchisee shall
temporarily raise, lower, or remove its wires as necessary to permit the moving of a
building, vehicle, equipment, or other item. The expense of such temporary changes must
be paid by the permit holder. Franchisee shall be given not less than seven (7) days'
advance notice to arrange for such temporary wire changes.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C, - 44
(May 26,2010)
7.10 Movement of Facilities During Emergencies.
7.10.I Immediate Threat. In the event of an unforeseen event, condition,
or circumstance that creates an immediate threat to the public safety, health, or welfare,
the City shall have the right to require Franchisee to shut down, relocate, remove, replace,
modiff, or disconnect Franchisee's Facilities located in the Public Rights-of-Way at the
expense of the Franchisee without regard to the cause or causes of the immediate threat.
7.10.2 Emergency. In the event of an Emergency, or where a Facility
creates or is contributing to an imminent danger to health, safety, or property, the City
retains the right and privilege to protect, support, temporarily disconnect, remove, or
relocate any or all parts of the Cable System located within the Public Rights-of-Way, as
the City may determine to be necessary, appropriate, or useful in response to any public
health or safety Emergency and charge the Franchisee for costs incurred.
7.10.3 Notice. During Emergencies the City shall endeavor to, as soon as
practicable, provide notice to Franchisee of such Emergency at a designated Emergency
response contact number, to allow Franchisee the opportunity to respond and recti$ the
problem without disrupting utility service. If after providing notice there is no immediate
response, the City may protect, support, temporarily disconnect, remove, or relocate any
or all parts of the Cable System located within the Public Rights-of-V/ay.
7.10.4 Limitation on Liabilitv. The City shall not be liable for any direct,
indirect, or any other such damages suffered by any person or entity of any type as a
direct or indirect result of the City's actions under this Section.
7.ll Record of Installations.
7.ll.l Map/Record Drawing of Cable S)'stem. Upon request by the City,
within fourteen (14) calendar days, Franchisee shall search for and provide the City with
the most accurate and available maps and record drawings in a form and content
prescribed by the City reflecting the horizontal and vertical location and configuration of
its Cable System within the Public Rights-of-Way and upon City property, and shall
include hard copies and digital copies in a format acceptable to the City. Franchisee shall
provide the City with updated record drawings and maps upon request.
7.11.2 Planned Improvements. Upon written request of the City, within
fourteen (14) calendar days, Franchisee shall provide the City with the most recent update
available of any planned improvements to its Cable System to the extent such plans do
not contain confidential or proprietary information or such information can be redacted;
provided, however, any such plan submitted shall be for informational purposes only and
shall not obligate Franchisee to undertake any specific improvements, nor shall such plan
be construed as a proposal to undertake any specific improvements.
7.11.3 Maps/Record Drawings of Improvements. After Construction
involving the locating or relocating of Facilities, the Franchisee shall provide the City
with reasonably accurate copies of all record drawings and maps showing the horizontal
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C, - 45
(May 26,2010)
and vertical location and configuration of all located or relocated Facilities within the
Public Rights-of-Way. These record drawings and maps shall be signed and stamped by
a professional land surveyor, shall be provided at no cost to the City, and shall include
hard copies and digital copies in a format specified by the City. As to any such record
drawings and maps so provided, Franchisee warrants the accuracy thereof.
7.I2 Restoration of Public Rights-oÊWay. and Public and Private Property.
7.12.1 Restoration After Construction. Franchisee shall, after completion
of Construction of any part of its Cable System, leave the Public Rights-of-Way and
other property disturbed thereby, in as good or better condition in all respects as it was in
before the commencement of such Construction. Franchisee agrees to promptly complete
restoration work to the reasonable satisfaction of the City.
7.12.2 Notice. If Franchisee's Work causes unplanned, unapproved, or
unanticipated disturbance of or alteration or damage to, Public Rights-oÊWay or other
public or private property, the Franchisee shall promptly notiff the property owner within
twenty-four (24) hours.
7.12.3 Duty to Restore. If Franchisee's Work causes unplanned,
unapproved, or unanticipated disturbance of, or alteration or damage to, the Public Right-oÊ
'Way or other public property, it shall promptly remove any obstructions therefrom and
restore such Public Righlof-Way and public property to the satisfaction of the City to as
good or better a condition as existed before the V/ork was undertaken, unless otherwise
directed by the City. If the City determines that complete or satisfactory restoration is not
obtainable, the City shall have the right to require compensation for the less than
complete or satisfactory condition of the Public Right-oÊWay or public property.
Franchisee shall complete the restoration work within forty-eight (48) hours of notification
or as authorized by the City's Public'Works Director.
7.12.4 Temporary Restoration. If weather or other conditions do not
allow the complete restoration required by this Section, Franchisee shall temporarily
restore the affected Public Right-of-Way or public property. Franchisee shall promptly
undertake and complete the required permanent restoration when the weather or other
conditions no longer prevent such permanent restoration.
7.12.5 Survev Monuments. All survey monuments which are disturbed or
displaced by any Work shall be referenced and restored, as per WAC 332-120, as the
same now exists or may hereafter be amended, and pursuant to all pertinent federal, state,
and locol standards and spooifioations.
7.12.6 Approval. The Public Works Director, or hislher designee, shall be
responsible for observation and final approval of the condition of the Public Rights-of-
Way and City property following any restoration activities therein. Franchisee is
responsible for all testing and monitoring of restoration activities.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 46
(May 26,2010)
7.12.7 Warranty. Except as provided in Section 7.12.8 below, Franchisee
shall wa:rant any restoration work performed by Franchisee in the Public Right-of-Way or
on other public property for two (2) years, unless a longer period is required by City code,
any generally applicable ordinance or resolution of the Cþ, or pursuant to the Construction
Standards. If restoration is not satisfactorily and timely performed by the Franchisee, the
City may, after prior notice to the Franchisee, or without notice where the disturbance or
damage may create a risk to public health or safety, cause the repairs to be made and recover
the reasonable cost of those repairs from the Franchisee. Within thirty (30) days of receipt
of an itemized list of those costs, including the costs of labor, materials, and equipment, the
Franchisee shall pay the City.
7.12.8 Maintenance of Micro-Trench. In the event that the Franchisee
uses low-impact deployment methodology in which fiber and conduit are inserted into a
slot-cut trench, or such other similar methods, in lieu of more traditional trenching
methods, Franchisee agrees that it shall be responsible for inspecting, maintaining, and
repairing the integrity of the backfill material to prevent penetration of water and other
material that will degrade the useful life of the Public Right-of-'Way remaining at the time
of the installation. Franchisee further agrees that where the micro-trench exists within the
travelled way of the Public Right-oÊWay, Franchisee shall be responsible for that portion
of the Direct Costs of repair or replacement of any portion of the Public Right-of-Way
that, as determined in the sole discretion of the Public Works Director, during its useful
life becomes unsuitable for public travel, but only to the extent caused by the presence, or
lack of maintenance or repair to, of the micro-trench. The Parties shall agree upon a
reasonable inspection and maintenance schedule.
7.12.9 Restoration of Private Property. 'When Franchisee does any Work
in the Public Right-oÊV/ay that affects, disturbs, alters, or damages any adjacent private
property, it shall, at its own expense, be responsible for restoring such private property to
the satisfaction of the private property owner.
7.13 Approvals. Nothing in this Franchise shall be deemed to impose any duty
or obligation upon the City to determine the adequacy or sufficiency of Franchisee's
Design Documents or to ascertain whether Franchisee's proposed or actual Construction
is adequate, sufficient, or in conformance with the 100% Design Submiual reviewed and
approved by the City. No approval given, inspection made, review, or supervision
performed by the City pursuant to or under authority of this Franchise shall constitute or
be construed as a representation or warranty, express or implied, by the City that such
item reviewed, approved, inspected, or supervised complies with applicable Laws or this
Franchise, or meets any particular Standard, code, or requirement, or is in conforlnance
with the approved 100% Design Submittal, and no liability shall attach with respect
thereto. City approvals and inspections, as provided herein, are for the sole purpose of
protecting the City's rights as the owner and/or manager of the Public Rights-oÊV/ay,
and shall not constitute any representation or warranty, express or implied, as to the
adequacy of the design or Construction of the Facilities or Cable System, suitability of
the Franchise Area for Construction, or any obligation on the part of the City to insure
that V/ork or materials are in compliance with any requirements imposed by a
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C, - 47
(May 26,2010)
govemmental entity. City is under no obligation or duty to supervise the design,
Construction, or operation of the Cable System.
7.14 Abandonment of Facilities. Except as may be otherwise provided by Law,
Franchisee may abandon in place any Facilities in the Public Rights-of-Way by providing
the City written notice of its intent, which notice shall include a description of the
Facilities it intends to abandon, the specific location in the Public Rights-of-V/ay of such
Facilities, and the condition of such Facilities. If the City provides its written approval of
the proposed abandonment, Franchisee may, within sixty (60) days of receipt of the
City's written approval to abandon Facilities in place, execute such documents as may be
required to convey such abandoned property to the City free and clear of all
encumbrances. Absent such request and conveyance, Franchisee shall be and remain
responsible for any Facilities abandoned in the Public Rights-of-Way.
7.15 Undergrounding and Relocation Obligations. This Section clarifies the
Franchisee's obligations when relocating or undergrounding its. Facilities. The following
obligations are in addition to and supplement Kent City Code Sections 7 .12.190,7 .12.200
(3), (4), and (6), and Kent City Code Chapter 7.10, as now or may be hereinafter
amended.
7.15.1 Location of Facilities. New Facilities shall be Constructed in
accordance with the following terms and conditions
7.I5.I.1 Facilities shall be installed within the Franchisee's
existing underground duct or conduit whenever excess capacity exists;
7.15.1.2 Overhead Facilities shall be installed on pole
attachments to existing utility poles only, and then only if space is available;
7.15.1.3 Whenever all existing telephone and electric utilities
are located underground within Public Rights-of-V/ay, the Franchisee must also locate its
Facilities underground; and
7.15.1.4 Whenever all new or existing telephone and electric
utilities are located or relocated underground within Public Rights-of-V/ay, the
Franchisee that currently occupies the same Public Rights-of-Way shall concurrently
relocate its Facilities underground at its expense.
7.15.2 In instances wherein conversion from aerial to underground is
caused by the City, the Franchisee sholl pay for costs dirootly assooiated with labor and
materials utilized in the placement of its Facilities.
7.15.3 In instances wherein the City takes the lead in a joint relocation
project, the Franchisee shall pay for all costs directly associated with engineering,
coordination, labor, and materials utilized in the placement of its Facilities. Trenching
and backfill cost allocation shall be based on the proportionate number of ducts
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 48
(May 26,2010)
attributable to the Franchisee as that number relates to the total number of ducts being
placed, and such other factors that may relate to an equitable allocation of costs among
the Franchisee and those Persons with facilities that will be relocated within the joint
trench. However, the City shall be responsible for all costs related to surface restoration
of any Public Rights-of-Way within the project area as defined by the City's project
engineering plans.
7.15.4 Nothing herein shall preclude the City and Franchisee from
entering into a separate agreement between the Parties, or among the Parties and other
Persons with facilities in the Public Righlof-V/ay, for the City to undertake on behalf of
the Franchisee the work to relocate Franchisee's Facilities within the Public Right-of-
Way as part of a Public Improvement project.
ARTICLE 8. CABLE REOUIREMENTS
8.1 Cable Service Buildout.
8.1.1 Initial Service Area. Franchisee shall offer Cable Service to
significant numbers of Residential Subscribers in residential areas of the Initial Service
Area, and may make Cable Service available to NonResidential Subscribers in the Initial
Service Area, within twenty-fow Q$ months of the Service Date, or within thirty-six (36)
months if providing FTTP within the Initial Service Area, and shall offer Cable Service to
all residential areas in the Initial Service Area within three (3) years of the Service Date, or
within four (a) years of the Service Date if providing FTTP within the Initial Service Area,
except: (A) for periods of Force Majeure, such time period will be tolled; (B) for periods of
delay caused by the City, such time period shall be tolled; (C) for periods of delay resulting
from Franchisee's inability to obtain authority to access Public Rights-oÊWay in the Service
Area, such time period shall be tolled; (D) in areas where developments or buildings are
subject to claimed exclusive arrangements with other providers, such obligation shall be
inapplicable; (E) in areas, developments, or buildings where Franchisee cannot access,
under reasonable terms and conditions, after good faith negotiation, as reasonably
determined by Franchisee, such obligation shall be inapplicable; and, (F) in aÍeas,
developments, or buildings where Franchisee is unable to provide Cable Service for
technical reasons or which require nonstandard Facilities which are not available on a
commercially reasonable basis, until such technical reasons are no longer applicable or such
nonstandard Facilities are available on a commercially reasonable basis.
8.1.2 Middle Service Area. Franchisee shall offer Cable Service to
significant numbers of Residential Subscribers in residential areas of the Middle Service
Area, and may make Cable Service available to Non Residential Subscribers in the Middle
Service Area, within four (4) years of the Service Date, or within five (5) years of the
Service Date if providing FTTP in the Middle Service Area, and shall ofler Cable Service to
all residential areas in the Middle Service Area within six (6) years of the Service Date, or
within seven (7) years of the Service Date if providing FTTP in the Middle Service Area,
subject to the conditions of Subsection 8.1.1 above and other terms set forth in this
Franchise.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 49
(May 26,2010)
8.1.3 Extended Service Area. Franchisee shall offer Cable Service to
significant numbers of Residential Subscribers in residential areas of the Extended Service
Area, and may make Cable Service available to NonResidential Subscribers in the Extended
Service Area, within seven (7) years of the Service Date, or within eight (8) years of the
Service Date if offering FTTP to all residential areas in the Extended Service Area, and shall
provide Cable Service to all residential areas within the Extended Service Area within nine
(9) years of the Service Date, or within ten (10) years if providing FTTP within the
Extended Service Area, subject to the conditions of Subsection 8.1.1 above and the other
terms set forth in this Franchise.
8.1.4 Annexation Areas. Except as may be otherwise agreed to in writing
by the Parties, any areas annexed to or consolidated with the City after the Effective Date
shall constitute an "Annexation Service Area". In the event that Franchisee does not operate
a Cable System within all or part of the Annexation Service Area, Franchisee shall offer
Cable Service to significant numbers of Residential Subscribers in residential areas of the
Annexation Service Area, not already being served by Franchisee, within twenty-four (24)
months of the date of Annexation, or Service date, whichever is the later, or within thirty-six
(36) months if providing FTTP for all of its customers within the Annexation Service Area
and shall offer Cable Service to all residential areas in the Annexation Service Area within
three (3) years of the date of Annexation, or Service date, whichever is the later, or within
four (a) years of the date of annexation, or Service date, whichever is the later, if providing
FTTP; provided that, to the extent that any portion of the Annexation Service Area is within
the Initial Service Area, the Middle Service Area, or the Extended Service Area, and the
Buildout is not complete for that service Area, the Buildout within the Annexation Area
shall be completed within the longer of the Buildout period as provided in this Section 8.1.4
or as the remaining Buildout period applicable to the particular service area(s) in which the
Annexation Area, or any part thereof, is located.
8.1.5 Availabilitv of Cable Service. Franchisee shall make Cable Service
available to all residential dwelling units, and may make Cable Service available to
businesses, within the Service Area in conformance with Sections 8.1, 8.2, 8.3 and 8.4, and
Franchisee shall not discriminate between or among any individuals in the availability of
Cable Service. ln the areas in which Franchisee shall provide Cable Service, Franchisee
shall be required to connect, at Franchisee's expense, other than a standard installation
charge, all residential dwelling units that are within one hundred twenty-five feet (125') of a
network access point not otherwise already served by Franchisee's FTTP network.
Franchisee shall be allowed to recover from a Subscriber that requests such connection,
actual costs incurred for residential dwelling unit connections that exceed one hundred
tr,venty-five feet (125'), and aotual costs inourred to oonnect any Non residential Subsoriber.
8.1.6 FTTP Standard. For purposes of this Article 8, providing ooFTTP" or
"Fiber to the Premises" shall mean and refer to providing a form of fiber-optic
communication delivery in which an optical fiber is run from the central office all the way to
the premises of each residential dwelling unit within the Service Area. Unless a different
standard is mutually agreed to by the Parties in writing, the phrase o'to the premises" shall
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 50
(May 26,2010)
mean that the optical fiber connecting to the central office is available within that portion of
the Public Rights-oÊWay abutting the properly boundary of each such residential dwelling
unit.
8.1.7 Notice of Election. Franchisee shall not be granted the extensions of
time for aBuildout of FTTP, as provided in Section 8.1.1, 8.1.2,8.1.3, and 8.1.4, unless
Franchisee first gives written notice to the City of such intent at least twelve (12) months
prior to the completion date applicable to a Buildout that does not meet the standard for
FTTP. For example, if Franchisee intends to Buildout FTTP in the Initial Service Area,
Franchisee shall not be entitled to the thirty-six (36) month Buildout period unless it gives
written notice of its intent to provide FTTP in the Initial Service Area no later than twelve
(12) months after the Service Date.
8.2 System Facilities. The City and the Franchisee acknowledge that the City
should be provided with a Cable System that has the same general capabilities and capacity
as those provided other cities served by the Franchisee in the King-Pierce-Snohomish
County area of the State of Washington. The City may, at its discretion, require the
Franchisee to provide such interactive services as addressability, security, computer
interaction, banking, shopping, or other such relevant technologies. In addition,
Franchisee's Cable System shall meet or exceed the following requirements:
8.2.1 Shall have a modem design when built, utilizing an architecture that
will permit additional improvements necessary for high quality and reliable service
throughout the term ofthis Franchise;
8.2.2 Shall have protection against outages due to power failures, so that
backup power is available at a minimum for at least twenty-four (24) hours at each Video
Serving Off,rce;
8.2.3 Shall be comprised of facilities and equipment of good and durable
quality, generally used in high quality, reliable, systems of similar design;
8.2.4 Shall have personnel, facilities, and equipment sufficient to cure
violations of any applicable FCC technical standards and applicable codes;
8.2.5 Shall have personnel, facilities, and equipment as necessary to
maintain, operate, and evaluate the Cable System to comply with any applicable FCC
technical standards, as such standards may be amended from time to time;
8.2.6 Shall have facilities and equipment designed to be capable of
continuous twenty-four (24) horN daily operation in accordance with applicable FCC
standards, except as caused by a Force Majeure event;
8.2.7 Shall have facilities and equipment designed, built, and operated in
such a manner as to comply with all applicable FCC requirements regarding (i) consumer
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 51
(May 26,2010)
electronic equipment, and (ii) interference with the reception of off the air signals by a
Subscriber;
8.2.8 Shall have facilities and equipment designed, built, and operated in
such a manner as to protect the safety of the Cable System workers and the public;
8.2.9 Shall have available suffrcient trucks, tools, testing equipment,
monitoring devices and other equipment and facilities and trained and skilled personnel
required to enable Franchisee to substantially comply with Applicable Law, including
applicable customer service standards and including requirements for responcling to System
outages;
8.2.10 Shall have all facilities, equipment, and qualified technical personnel
available as required to properly test the Cable System and conduct an ongoing and active
program of preventive maintenance and qualrty control, and to quickly respond to customer
complaints and resolve System problems. Upon request, Franchisee shall provide the
County with available copies of its Cable System maintenance and quality control plan;
8.2.11 Shall be designed to be capable of interconnecting with other Cable
Systems in the Franchise Area;
8.2.12 Shall, if applicable, have antenna supporting structures (i.e., towers)
designed in accordance with all applicable state and local building codes, as amended, and
shall be painted, lighted, erected, and maintained in accordance with all applicable rules and
regulations of the Federal Aviation Administration, the FCC, and all other applicable codes
and regulations;
8.2.13 Shall have all facilities and equipment at the headend allowing
Franchisee to transmit or cablecast signals in substantially the same form received, without
substantial alteration or deterioration. For example, the headend should include equipment
that will transmit color video signals received at the headend in color, stereo audio signals
received at the headend in stereo, and a signal received with a secondary audio track with
both audio tracks. Similarly, all closed captioned programming retransmitted over the Cable
System shall include the closed captioned signal in a manner that renders that signal
available to Subscriber equipment used to decode the captioning;
8.2.14 Shall transmit in high definition on the digital tier any signal carried
by the Cable System which is transmitted to Franchisee in a high definition format and three
(3) dimensional format;
8.2.15 Shall provide adequate security provisions in its Subscriber site
equipment to permit parental control over the use of Cable Services on the System. Such
equipment shall at a minimum offer as an option that a Person ordering programming must
provide a personal identification number or other means provided by Frarichisee only to a
Subscriber, provided, however, that Franchisee shall bear no responsibility for the exercise
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMI.INICATIONS, L,L,C, - 52
(May 26,2010)
of parental controls and shall incur no liability for any Subscriber's or viewer's exercise or
failure to exercise such controls;
8.2.16 Shall conform to or exceed all applicable FCC technical performance
standards, as amended from time to time, and any other future applicable technical
performance standards, which the County is permitted by a change in law to enforce, and
shall substantially conform in all material respects to applicable sections of the following
standards and regulations to the extent such standards and regulations remain in effect and
are consistent with accepted industry procedures. Proof-oÊperformance shall meet or
exceed the minimum requirement set forth in FCC Rules & Regulations Part 76, SubPart K
"Technical Standards." There shall be a test point located at the extremities of each node;
8.2.17 Shall include optional equipment so that any pay-per-view
programming can only be activated by the positive action of a Subscriber using, for
example, a private identification number or other individual selection procedure; and
8.2.18 Shall comply with all requirements of Applicable Law, including,
but not limited to, the Americans with Disabilities Act. Franchisee shall comply with FCC
rules on transmission of closed captioning for the hearing impaired. For hearing impaired
Subscribers, Franchisee shall provide information conceming the cost and availability of
equipment to facilitate the reception of all basic services for the hearing impaired. tn
addition, Franchisee must provide information (upon request) regarding TDD/TTY (or
equivalent) equipment, and a publicly listed telephone number for such equipment, that will
allow hearing impaired Subscribers to contact Franchisee.
8.2.19 Franchisee shall design the Cable System so that it can be
interconnected with other cable systems or any open video systems in the area or within the
City at suitable locations as determined by Franchisee. lnterconnection capabilities shall be
provided for the exchange of all PEG signals designated in Section 8.3 herein carried on the
Cable System. Interconnection of systems may be made by direct cable connection,
microwave link, satellite, or other appropriate methods.
8.2.20 At the request of the City, the Franchisee shall, to the extent
permitted by Applicable Law and its contractual obligations to third parties, use every
reasonable effort to negotiate an interconnection agreement with any other franchised cable
system in the Franchise Area for the PEG channels on the Cable System; provided,
however, that the Persons seeking to interconnect shall bear all reasonable costs of such
interconnection. The Franchisee shall notiff the City prior to any interconnection of the
Cable System with any other cable system in the City;
8.2.2I Franchisee shall comply with the Emergency Alert System ("EAS')
requirements of applicable federal or state laws or regulations in order that emergency
messages may be distributed over the Cable System.
8.2.22 Franchisee shall ensure that all Service addresses are identified and
are correctly associated with the Franchise Service Area through the use of a Geographic
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 53
(May 26,2010)
Information System, electronic file format, or equivalent system acceptable to the City. In
the event of annexation or consolidation, Franchisee shall ensure that all Service addresses
are identified and are correctly associated with the Franchise Service Area within the
Annexation Area within sixty (60) days following the later of the effective date of notice
given to Franchisee of the annexation date or the annexation date, but no later than the first
quarterly payment of Franchise Fees following the date of annexation.
8.2.23 Emergency Ovenide. The Franchisee shall make provisions for an
emergency alert system from City Hall or any one of the primary police or fire facilities.
The Franchisee shall establish a process that will provide a character generated scroll and
make its best effort to fumish a voice override notifring viewers and listeners of the
emergency. This emergency alert system shall be compatible with applicable federal, state,
and local regulations. Franchisee shall further be obligated to make provisions for
interconnection of the Cable System with the Emergency Alert System of King County for
the override of cable programming and distribution of emergency messages over the Cable
System within the Franchise Area.
Subject to federal and state laws and regional planning authorities, control of
these emergency override facilities shall be the responsibility of the City. The City shall
hold the Franchisee, its agents, employees, officers, and assigns harmless from any claims
arising out of the emergency use of its transmitting facilities by the Cþ. The City, at its
option, may elect to share this service with adjoining communities.
8.3 Public. Educational. and Government Channels ('?EG").
' 8.3.1 The City shall be provided with, at a minimum, one (l) 6 i|l4Hz
analog or IPTV video Access Channel, eleven (11) 6 MHz analog/digital or IPTV video
Access Channels, and three (3) High Definition digital or IPTV video Access Channels
capable of live broadcasts from City Hall and two (2) other sites to be determined by the
City. The City may share a coÍìmon public Access .Channel with other communities,
however, the CiW may elect, at its option, to provide programming over an individual public
Access Channel for the City's sole use. The City agrees that Franchisee may use two (2) of
the High Definition digital video Access Channels to cablecast programming for any lawful
pqpose until the City gives six (6) months written notice requesting retum of control and
use of such channel to the City.
8.3.2 Additional channels over and above those set forth in Section 8.3.1
above shall be made available for City purposes when any of the fifteen (15) designated
channels is in use for access purposes with programming during fifty percent (50%) of the
hours betrveen 10:00 a.m. and 10:00 p.m. during any oonseoutive ten (10) rveok period.
Programming for additional required channels shall be distinct and non-repetitive of the
previous channel. The Franchisee shall, within six (6) months following a request by the
City, provide another designated Access Channel to the City.
8.3.4 The Franchisee shall continue to provide additional channels under
the same conditions. If additional channels are designated for community use but, after one
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMLTNICATIONS, L.L.C. - 54
(May 26,2010)
(l) year, such channel(s) are not programmed at least twenty-five percent (25%) of the hours
between 10:00 a.m. and 10:00 p.m. with programming, the access users shall, within six (6)
months of receiving written notice from the Franchisee, group their programming into one
(1) contiguous block of time of their choosing. The remaining broadcast time on such
channel(s) shall then revert to the Franchisee for its unrestricted use within the terms and
conditions of this Franchise Agreement.
8.3.5 Contributions to Public, Educational, and Govemment ("PEG")
access shall not be considered in lieu of a Franchise Fee or other obligations to the City.
8.3.6 Cable Feed to Public Access Facility. Franchisee shall at no cost to
the City or Puget Sound Access, provide connectivþ with optical fiber and necessary
electronics between the City of Kent Public Access Facility (currently located at the Puget
Sound Access Center ("PSA")) and the nearest Franchisee Hub. The Construction shall be
completed within sixty (60) days of the eflective date of notice of the City's request.
Franchisee shall provide, at no cost to the City, all end-user equipment necessary to send
and receive digital signals at both the public access site and Franchisee's Hub, including all
end-user equipment necessary to transmit and receive TV 2I programming over
Franchisee's Cable System.
8.3.7 HD PEG Channels. All residential subscribers who receive all or
any part of the total services offered on the Franchisee's system shall be eligible to receive
all fifteen (15) Access Channels at no additional charge.
8.3.8 On-Demand PEG Programming. Franchisee shall provide to the
City video-on-demand ("VOD") government access with up to sixty (60) hours of
government, education, and public access programming stored on the Franchisee's server at
no cost to the City starting on or before the Service Date and continuing through the term of
this Franchise. The City may change the video programming stored on the Franchisee's
seryer on a regular basis.
8.3.9 PEG Location and Signal Quality. Franchisee shall continue to
cablecast City PEG channels in analog, digital, or IPTV format.
8.3.10 Upon the Service Date, the Franchisee shall use conìmercially
reasonable efforts to establish its initial PEG Channel assignments consistent with PEG
Channel assignments previously assigned by other Cable System operators within the
Franchise Area. No PEG Channel assignment shall be relocated thereafter without the
mutual consent of the City and Franchisee. Unless mutually agreed otherwise, if
Franchisee and the City agree to change the location of a PEG Channel, Franchisee must
provide at least six (6) months notice to the City prior to implementing the change, and
shall reimburse the City, and its PEG operator (Puget Sound Access or its successor), for
any reasonable costs incurred as a result of the relocation of the Channel assignment.
Franchisee will use reasonable efforts to minimize the movement of City-designated PEG
Channel assignments and maintain coÍrmon Channel assignments for compatible PEG
programming. Franchisee shall include all PEG Channels in its TV-Guide listings.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 55
(May 26,2010)
8.3.11 If Franchisee makes changes in the System and related equipment
and Facilities or in signal delivery technology, which change directly causes the signal
quality or transmission of PEG Channel programming or PEG services to fall below
technical standards under applicable Law, Franchisee shall, at its own expense, provide
technical assistance, transmission equipment, and all other assistance so that PEG facilities
may be used as intended; provided that, such amount shall not exceed thirty thousand dollars
($30,000) in any twelve (12) month period. All PEG Channels shall be transmitted in the
same format and in the same quality as all other basic Cable Service Channels and shall be
carried on the Basic Service Tier. All signal quality issues shall be resolved within twenty-
four (2a) hours of notice from the City.
8.3.12 PEG Support. Upon the Service Date of this Franchise, the
Franchisee shall, in accordance with the schedule below, pay to the City on a quarterly basis,
at the same time as the franchise fee, a per Subscriber per month fee (the "PEG Fee") from
all Subscribers receiving and paying for Cable Service. To the extent permitted by
applicable Law, the PEG Fee may be itemized on subscriber billing statements.' The
schedule for PEG Fees shall be as follows:
I't.year - Five (5) cents per Subscriber per month;
2"o year- Fifteen (15) cents per Subscriber per month;
3'd year - Twenty-five (25) cents per Subscriber per month;
4tr year - Thirty-five (35) cents per Subscriber per month;
5ù year - Seventy-five (75) cents per Subscriber per month; and
6tr year - One (1) dollar per Subscriber per month.
At the conclusion of the 6ft year, the PEG Fee shall be adjusted on an annual
basis each January by the all urban consumers consumer price index ("CPI-U") for the
Seattle/Tacoma/Bremerton area as published by the United States Bureau of Labor
Statistics. The adjustment shall be based upon the change in the CPI-U for the months of
July and August in the year prior to the adjustment; provided that, in no event shall the PEG
Fee be adjusted down.
The PEG Fees shall not be treated as Franchise Fees for purposes of 47
U.S.C. $ 542 or any other purpose, and shall at no time be offset or deducted from Franchise
Fee payments made to the City under this Franchise or applicable Law.
8.3.13 Initial PEG Capital Grant. Five (5) years from the Service Date,
Franchisee shall provide an unrestricted and non-recoverable initial PEG capital grant of one
hundrcd thousand dollars ($100,000.00) to bc uscd for PEG capital purposcs. tn thc
altemative, Franchisee may make an earlier payment, on or after the Service Date, by
deducting two percent (2%) from the above amount for each full year that payment is
received earlier than the date set forth above. For example, if payment is made on or before
the Service Date, the PEG capital grant shall be $90,000. A payment made during the first
year following the Service Date would be $92,000. A payment during the second year
following the Service Date would be $94,000.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMLTNICATIONS, L.L.C. - 56
(May26,2010)
The PEG capital grant shall not be treated as Franchise Fees for purposes of
47 U.S.C. ç 542 or any other purpose, and shall at no time be offset or deducted from
Franchise Fee payments made to the City under this Franchise or applicable Law.
8.3.14 Additional PEG Grant Obligations. The Parties agree that
Franchisee shall be obligated to make additional PEG capital grants on each ten (10) year
ærriversary of the Effective Date of the Franchise throughout the term of the Franchise,
including any extensions thereot i.e., years 10, 20 and 30. The City shall provide a PEG
capital grant request based upon a needs assessment supporting the PEG capital grant, as a
pre-condition of Franchisee's obligation to pay each such additional PEG capital grant. The
Parties shall mutually agree upon the amount of each such additional PEG capital grant.
Such capital grant shall be no more than twenty percent (20%) of Franchise Fees paid (or
due and owing) to the City for the twelve (12) month period prior to the date upon which the
PEG capital grant becomes due. In the event that the Parties are unable to mutually agree
upon such PEG capital grant prior to the date upon which the PEG capital grant becomes
due, the Parties agree that the PEG capital grant shall be set automatically at the lesser of the
amount requested by the City, based upon its needs assessment, or the twenty percent (20%)
cap as set forth above. Such additional PEG capital grants shall be paid in full at the time
the payment becomes due and owing.
8.3.15 Government Programming Grant. The Parties desire to establish a
grant program to provide a potential source of funding for government programming that
will benefit the residents of the City and will provide an opportunity for Franchisee to
support local government programming. The Parties agree, therefore, that Franchisee may,
but is not obligated to, establish a local government programming grant program. The City
agrees that it will participate with the Franchisee in a local govemment programming grant
program upon the following terms and conditions.
1. Administration. The City will administer and manage each grant
or series of grants and act as a conduit through which the grant funds would be disbursed
from Franchisee to recipient. At no time shall such funds be considered to be funds of the
City.
2. Grant Recipients. Recipients of the grant shall be limited to those
persons that are contracted by the City to provide government programming for cablecast
upon ¿my one or more of the City government access channels.
3. Editorial Control. The City shall retain editorial control over all
programming funded through the grant funds.
4. Franchise Fees. The grant funds shall not be treated as franchise
fees for purposes of 47 U.S.C. $ 542 or any other purpose, and shall at no time be ofßet or
deducted from franchise fee payments made to the City under this Franchise or applicable
Law.
FRANCHISE AGREEMENT BETV/EEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 57
(May 26,2010)
5. Off-Set. Commencing upon the Service Date, any funds
committed by Franchisee to the programming grant program contemporaneous with the
payment of the PEG capital grant may, at the request of the Franchisee, be oËset, at a two-
to-one ratio, against the PEG capital grant to be paid by the Franchisee during the period in
which the grant funds are committed; provided that, the total off-set may not exceed fifty
percent (50%) of the total PEG capital grant obligation. For example, if Franchisee pays its
initial PEG capital contribution of ninety thousand dollars ($90,000) at the commencement
of the Service Date, the maximum ofÊset to be applied during the period from the Service
Date until the commencement of the 10ú year (the commencement of the next PEG capital
grant obligation) would be forty-five thousand dollars ($45,000). Thus, if Franchisee
committed eighty thousand dollars ($80,000) to the programming grant program
contemporaneously with the payment of the initial PEG capital grant, the off-set to be
applied against the initial PEG capital grant would be forty thousand dollars ($40,000).
8.3.16 In the event any payment required by this Section 8.3 is not made on
or before the required date, the Franchisee shall pay, during the period such unpaid amount
is owed, additional compensation and interest charges computed from such due date, at an
arurual rate of eight percent (8%) or the statutory maximum, whichever is less. Any interest
or penalties imposed hereunder shall not be treated as Franchise Fees for purposes of 47
U.S.C. $ 542 or any other purpose, and shall at no time be ofßet or deducted from Franchise
Fee payments made to the City under this Franchise or applicable Law.
8.3.17 Institutional Network (the "City I-Net"). Reserved.
8.4 Public Buildines. The Franchisee shall provide without charge, for
installation or a monthly rate, Basic Service and outlets at such public buildings and schools
as specified in Appendices "4" and n'B", as well as other such buildings that may be
constructed during the period of the Franchise that are passed by cable and within 150 feet
of the trunk or distribution system. The Franchisee shall make its best efforts to provide
regional interconnection of all schools at the appropriate time.
8.5 Customer Privacy. Franchisee shall comply with the Subscriber privacy
regulations set forth in 47 U.S.C. $ 551 and any lawful state or local laws pertaining to
privacy.
8.6 Customer Service. Within seven (7) days of receipt of a customer inquiry or
complaint that is referred to the Franchisee, in writing by the Cþ, the Franchisee shall
notifu City in writing of the resolution or disposition of the inquiry or complaint. If a
complaint is not resolved within seven (7) days, the Franchisee shall inform City in writing
of the plon to resolve the oomplaint expeditiously or the reason lvhy it cannot be resolved.
Franchisee shall further comply with the minimum customer services stándards adopted by
the FCC, the customer service standards set forth in this Franchise, the customer service
standards in Ch. 7.12 KCC, as amended, and the minimum customer service standards
adopted by the City.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMLINICATIONS, L.L.C. - 58
(May 26,2010)
8.7 Telephone Response. The Franchisee shall maintain an adequate force of
customer service representatives as well as incoming trunk lines so that telephone
inquiries are met promptly and responsively. The Franchisee shall have in place
procedures for utilization of other manpower and/or recording devices for handling the
flow of telephone calls at peak periods of large outages or other major causes of
Subscriber concern. A copy of such procedures and/or policies shall be made available to
the City. Under normal operating conditions, seconds, average speed of answer, and busy
signals shall not occur more than three percent (3%) of the time. This requirement shall
be met at least ninety percent (90%) of the time, measured over any consecutive ninety
(90) day period. The Franchisee shall use an answering service or be capable of
receiving service complaints and System malfunction reports when the business office is
closed. In order that the City may be informed of a Franchisee's success in achieving
satisfactory customer relations in its telephone answering functions, the Franchisee shall
routinely, but no less than quarterly, provide the City with a summary that will provide, at
a minimum, the following:
1. Number of calls received in a reporting period;
2. Time taken to answer;
3. Average talk time;
4. Number of calls abandoned by the caller;
5. Average hold time;
6. Percentage of time all lines busy; and
7. Atr explanation of all abnormalities.
This data shall be compared to minimum standards of the NCTA incorporated
herein by reference, or any amendment thereto increasing such standards, and shall be
monitored by the City. Calls for service generated during periods of System outages, as
defined by the FFC, due to Emergency affecting more than twenty-five (25) customers
may be excluded from the service response calculations. The City shall have the sole
determination as to what constitutes a System failure due to Emergency and which calls
shall be excluded from the service level calculations.
8.8 Outages. The Franchisee shall render repair service to restore the quality
of the signal at the same or higher standards existing prior to the failure or damage of the
component causing the failure, and make repairs promptly and intemrpt service only for
good cause and for the shortest time possible. Such intemrptions, insofar as possible,
shall be preceded by notice and shall occur during a period of minimum use of the
System. A log of all service intemrptions shall be maintained and kept on file by
Franchisee. The City, after two (2) working days, upon notice to Franchisee of such a
request, may inspect such logs. Installation work shall be performed in a timely manner.
The Franchisee shall offer a choice of morning, afternoon, or late afternoon
appointments, within a four (4) hour time period. Franchisee may not cancel an
appointment with a Subscriber after the close of business on the business day prior to the
scheduled appointment. If Franchisee is running late for an appointment with a customer
and will not be able to keep the appointment as scheduled, the Subscriber shall be
contacted. The appointment shall be rescheduled, as necessary, at a time which is
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 59
(May26,2010)
convenient for the Subscriber. If the Franchisee fails to keep a scheduled appointment
with a Subscriber, and fails to give notice to the Subsøiber at least two (2) hours prior to
the scheduled appointment time, the Franchisee shall give a service credit to that
Subscriber unless failure of notice is caused by acts of God.
An employee of Franchisee shall answer and respond to all individual complaints
received prior to 5:00 p.m. weekdays. Franchisee may use an answering service to
receive complaints after 5:00 p.m. weekdays and on weekends and holidays and shall
promptly respond to any System outage.
8.9 Senior CitizenlDisabled Person Low-income Discount. Reserved
8.10 Technical Audit. Franchisee shall annually provide to the City a certification
signed by its Vice President of Engineering for the State of V/ashington, or other senior
engineer as agreed upon by the City, certiSing that its policies and procedures comply with
all applicable Laws and codes, and that all known maintenance issues have been repaired in
compliance therewith. In addition, upon reasonable notice by the City, Franchisee shall
provide all technical testing and certification materials to the City, or its technical
consultant, for audit purposes.
8.11 Live Feeds. Franchisee shall provide, where technically feasible, the ability
for live feeds from City Hall, as well as four (4) other sites within the Kent city limits to be
designated by the City. The City intends to locate these sites for the purpose of live
broadcasting of community meetings and other information as follows: one (1) on the East
Hill; one (1) on the West Hill; one (1) additional site in the Valley; and one (1) at Puget
Sound Access.
ARTICLE 9. MISCELLANEOUS
9.1 Headings. Titles to articles and sections of this Franchise are not a part of
this Franchise and shall have no effect upon the Construction or interpretation of any part
hereof.
9.2 Entire Asreement. The written provisions and terms of this Franchise,
together with any Exhibits attached hereto, shall supersede all prior verbal statements of
any officer or other representative of the City, and such statements shall not be effective
or be construed as entering into or forming a part of or altering in any manner this
Franchise.
t9.3 Incorporation of Exhibits. All exhibits attached hereto at the time of
execution of this Franchise, or in the future as contemplated herein, are hereby
incorporated by reference as though fully set forth herein.
9.4 Calculation of Time. All periods of time referred to herein shall include
Saturdays, Sundays, and legal holidays in the State of Washington, except that if the last
day of any period falls on any Saturday, Sunday, or legal holiday in the State of
FRANCHISE AGREEMENT BET'WEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. . 60
(May 26,2010)
Washington, the period shall be extended to include the next day which is not a Saturday,
Sunday, or legal holiday in the State of V/ashington; provided that, the Effective Date
shall be determined as provided at Section 4.3 of this Franchise.
9.5 Time Limits Strictly Construed. 'Whenever this Franchise sets forth a time
for any act to be performed by Franchisee, such time shall be deemed to be of the essence,
and any failure of Franchisee to perform within the allotted time may be considered a
Breach of this Franchise.
9.6 No Joint Venture. It is not intended by this Franchise to, and nothing
contained in this Franchi.se shall, create any partnership, joint venture, or principal-agent
relationship or other arrangement between Franchisee and the City. Neither Party is
authorized to nor shall either Parly act toward third Persons or the public in any manner
which would indicate any such relationship with the other. The Parties intend that the
rights, obligations, and covenants in this Franchise and the collateral instruments shall be
exclusively enforceable by the City and Franchisee, their successors, and assigns. No
term or provision of this Franchise is intended to be, or shall be, for the benefit of any
Person not a Party hereto, and no such Person shall have any right or cause of action
hereunder, except as may be otherwise provided herein. Further, the Franchisee is not
granted any express or implied right or authority to assume or create any obligation or
responsibility on behalf of or in the name of the City. Nothing in this Section 9.6 shall be
construed to prevent an assignment as provided for at Subsection 7.8.6 of this Franchise.
9.7 Approval Authority.Except as may be otherwise provided by Law or
herein, any approval or authorization required to be given by the City, shall be given by
the Public 'Works Director (or his or her successor) or the Public 'Works Director's
designee.
9.8 Binding Effect Upon Successors and Assiqns. All of the provisions,
conditions, and requirements contained in this Franchise shall further be binding upon the
heirs, successors, executors, administrators, receivers, trustees, legal representatives, and
assigns of the Franchisee; and, all privileges, as well as all obligations and liabilities of
the Franchisee shall inure to its heirs, successors, and assigns equally as if they were
specifically mentioned wherever the Franchisee is named herein.
9.9 Waiver. No failure by either Party to insist upon the performance of any
of the terms of this Franchise or to exercise any right or remedy consequent upon a
Breach thereof, shall constitute a waiver of any such Breach or of any of the terms of this
Franchise. None of the terms of this Franchise to be kept, observed, or performed by
either Party, and no Breach thereof, shall be waived, altered, or modified except by a
written instrument executed by the injured Party. No waiver of any Breach shall affect or
alter this Franchise, but each of the terms of this Franchise shall continue in full force and
effect with respect to any other then existing or subsequent Breach thereof. No waiver of
any default of the defaulting Party hereunder shall be implied from any omission by the
injured Party to take any action on account of such default if such default persists or is
repeated, and no express waiver shall affect any default other than the default specified in
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 61
(May 26,2010)
the express waiver, and then only for the time and to the extent therein stated. One or
more waivers by the injured Party shall not be construed as a waiver of a subsequent
Breach of the same covenant, term, or conditions.
9.10 Severability. If any word, article, section, subsection, paragraph, provision,
condition, clause, sentence, or its application to any person or circumstance (collectively
referred to as ooTerm"), shall be held to be illegal, invalid, or unconstitutional for any
reason by any court or agency of competent jurisdiction, such Term declared illegal,
invalid, or unconstitutional shall be severable and the remaining Terms of the Franchise
shall remain in full force and effect, unless to do so would be inequitable or would result
in a material change in the rights and obligations of the Parties hereunder; provided,
however, that if either Franchisee or the City prevails in any proceeding seeking a finding
that any Term is invalid, illegal, or unconstitutional for any reason, this Franchise shall be
declared terminated and all rights and obligations hereunder shall immediately cease and
be of no force and effect except with regard to those provisions that survive termination
of this Franchise pursuant to Section 9.14 herein. In the event that such Term shall be
held or otherwise mutually agreed to by the City and Franchisee to be illegal, invalid, or
unconstitutional, the Parties shall reform the Franchise pursuant to Section 3.5 herein.
9.11 Signs. No signs or advertising shall be permitted upon Facilities in the
Franchise Area except as may be required by Law or as may be required by the City for the
protection of the public health, safety, and welfare, to the extent it has authority to do so, or
as may be necessary to identifu the ownership of such Facilities.
9.12 Discriminatory Practices Prohibited. Throughout the term of this Franchise,
Franchisee shall frrlly comply with all equal employment and nondiscrimination provisions
of applicable Law.
9.I3 Notice. Any notice required or permitted to be given hereunder shall be in
writing, unless otherwise expressly permiued or required, and shall be deemed effective
either, (i) upon hand delivery to the person then holding the office shown on the attention
line of the address below, or, if such office is vacant or no longer exists, to a person
holding a comparable office, or (ii) when delivered by a nationally recognized ovemight
mail delivery service, to the Party and at the address specified below, or (iii) on the third
business day following its deposit with the United States Postal Service, first class and
certified or registered mail, return receipt requested, postage prepaid, properly sealed and
addressed as follows:
Franchisee's address:,r rr
And to:&¿
The City's Address:City of Kent
Attn: Chief Administrative Officer
220 Fourth Avenue South
Kento WA 98032
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 62
(May26,2010)
And to the City Attorney: OffÏce of the City Attorney
Attn: City Attorney
220 Fourth Avenue South
Kent, \ilA 98032
The City and Franchisee may designate such other address from time to time by giving
written notice to the other, but notice cannot be required to more than two (2) addresses,
except by mutual agreement.
9.14 Survival of Terms Upon the expiration, termination, revocation, or
forfeiture of the Franchise, the Franchisee shall no longer have the right to occupy the
Franchise Area for the purpose of providing Services authorized herein. However, the
Franchisee's obligations under this Franchise to the City shall survive the expiration,
termination, revocation, or forfeiture of these rights according to its terms for so long as
the Franchisee's Cable System or any part thereof shall remain in whole or in part in the
Public Rights-of-Way, the Franchisee Transfers ownership of all Facilities in the
Franchise Area to a third-Party, or the Franchisee abandons said Facilities in place, all as
provided herein. Said obligations include, by way of illustration and not limitation,
Franchisee's obligations to indemniff, defend, and protect the City, to provide insurance,
to relocate its Facilities, and to reimburse the City for its costs to perform Franchisee
work.
9.15 Force Majeure. In the event Franchisee is prevented or delayed in the
performance of any of its obligations herein due to circumstances beyond its control or by
reason of a force majeure occurrence, such as, but not limited to, acts of God, acts of
terrorism, war, riots, civil disturbances, natural disasters, floods, tornadoes, earthquakes,
unusually severe weather conditions, employee strikes, and unforeseen labor conditions
not attributable to Franchisee's employees, Franchisee shall not be deemed in Breach of
provisions of this Franchise.
If Franchisee believes that circumstances beyond its control or by reason of a force
majeure occurrence have prevented or delayed its compliance with the provisions of this
Franchise, Franchisee shall provide documentation as reasonably required by the City to
substantiate the Franchisee's claim. Franchisee shall have a reasonable time, under the
circumstances, to perform the af[ected obligation under this Franchise or to procure a
substitute for such obligation which is satisfactory to the City; provided that, the Franchisee
shall perform to the maximum extent it is able to perform and shall take reasonable steps
within its power to correct such cause(s) in as expeditious a manner as possible; and
provided that the Franchisee takes immediate and diligent steps to bring itself back into
compliance, as soon as possible under the circumstances, with the Franchise without
unduly endangering the health, safety, and integrity of the Franchisee's employees or
property, or the health, safety, and integrity of the public, Public Rights-of-Way, public
property, or private property.
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. . 63
(May 26,2010)
9.16 Attorneys' Fees. In any claim or lawsuit for damages arising from a
Party's performance of this Agreement, each Party shall pay all its legal costs and
attorneys' fees incurred in defending or bringing such claim or lawsuit, including all
appeals, in addition to any other recovery or award provided by law; provided, however,
nothing in this Section shall be construed to limit either Party's right to indemnification
or either Party's duty to defend the other Party under this Franchise.
9.17 Venue/Choice of Law. This Franchise shall be governed by and construed
in accordance with the Laws of the state of Washington. If the Parties are unable to settle
any Dispute, difference, or claim arising from the Parties' performance of this Franchise,
the exclusive means of resolving that Dispute, difference, or claim shall only be by filing
suit exclusively under the venue, rules, and jurisdiction of the King County Superior
Court, King County, Washington, unless the Parties agree in writing to an alternative
Dispute resolution process.
9.18 Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the
City requires its contractors and consultants to use recycled and recyclable products
whenever practicable. A price preference may be available for any designated recycled
product.
IN V/ITNESS WHEREOF, this Franchise has been executed by the City as of the
last date set forth below (Effective Date).
CITY OF KENT
Suzette Cooke, Mayor
Dated
Michael Carrington, Director
Information Technology Department
Dated:
Approved as to form:
Chris Bacha
Kenyon Disend, PLLC
Special Counsel
FRANCHISE AGREEMENT BETWEEN CITY OF KENT
AND GOLDFINCH COMMUNICATIONS, L.L.C. - 64
(May 26,2010)
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS
ARTICLE 2. FRANCHISE GRANT
Public Ri ghts-of-V/ay Use Authorized
Authorized Services
No Rights Shall Pass to Franchisee b)'Implication
Interest in the Public Riehts-oÊWay
Condition of Franchise Area
Franchise Nonexclusive
Transfer
Street Vacation
Railroad Riehts-of-Way
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10 Reservation of City Use of Public Right-of-V/ay
ARTICLE 3. COMPLIANCE WITH LAWS/ORDER OF PRECEDENCE
3.1
3.2
aaJ.J
3.4
3.5
3.6
3.7
Compliance'With Laws
Police Powers
Alteration of Material Terms and Conditions
Reservation of Ri ghts/Waiver
Subsequent Action
Change in Form of Government
Order of Precedence
ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC
ARTICLE 4. ACCEPTANCE
Acceptance
Failure to Timely File Acceptance
Effective Date/Term/Extension
Effect of Acceptance
Effect of Exoiration/Termination
Limitation of Liabilitv
Environmental Liability - Attached Exhibit C
Insurance Requirements - Attached Exhibit D
Financial Security - Attached Exhibit E
Parental Guarantee - Intentionally Deleted
Contractors/Subcontractors - Attached Exhibit F
Liens
Financial Conditions
4.1
4.2
4.3
4.4
4.5
5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
TABLE OF CONTENTS - i
ARTICLE 6. ENFORCEMENT AND REMEDIES
6.I Communication and Discussion
ARTICLE 7. GENERAL CONDITIONS UPON USE OF PUBLIC RIGHTS-OF-V/AY
Remedies
Termination/Revo cation
Right to Cure Breach
Assessment of Liquidated Damages
Receivership
Permits
Submission/Approval of Design Submittal
Compliance With Standards/Codes
Conditions Precedent to Work
Work in the Public Riehts-of-V/ay
Alterations
General Conditions
Facility Relocation at Request of the Citv
Movement of Facilities for Others
Movement of Facilities During Emergencies
Record of Installations
Restoration of Public Rights-of-V/ay. and Public and Private Property
Approvals
Abandonment of Facilities
Undergrounding and Relocation Obligations
ARTICLE 8 CABLE REOUIREMENTS
6.2
6.3
6.4
6.5
6.6
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
7.10
7.ll
7.12
7.13
7.14
7.15
8.1
8.2
8.3
8.4
8.5
8.6
8.7
8.8
8.9
8.10
8.11
9.1
9.2
Cable Service Buildout
System Facilities
Public. Educational. arid Govemment Channels ("PEG")
Public Buildings
Customer Privacy
Customer Service
Telephone Response
Outases
Senior CitizenlDisable Person Low-income Discount
Tcchnical Audit
Live Feeds
ARTICLEg. MISCELLANEOUS
Headings
Entire Agreement
TABLE OF CONTENTS - ii
9.3
9.4
9.5
9.6
9.7
9.8
9.9
9.10
9.tt
9.12
9.73
9.t4
9.t5
9.16
9.17
9.18
Incorporation of Exhibits
Calculation of Time
Time Limits Strictly Construed
No Joint Venture
Approval Authority
Binding Effect Upon Successors and Assigns
Waiver
Severability
Signs
Discriminatory Practices Prohibited
Notice
Survival of Terms
Force Majeure
Attomeys'Fees
Venue/Choice of Law
Recyclable Materials
EXHIBITS
A. Franchise Area
B. Form of Acceptance of Franchise
C. Environmental Indemnity
D. Insurance Requirements
E. Financial Security
F. Contractor/Subcontractor Insurance Requirements
G. Form of Transfer/Change of Còntrol
H. Depiction of Service Areas
TABLE OF CONTENTS - iii
EXITIBIT TA'
(Franchise Area)
The Franchise Area shall consist of all of the Public Rights-of-Way lying within the
jurisdictional boundaries of the City, including any areas annexed by the City during the
term ofthis Franchise or any extension thereof.
EXHIBITA
TO FRANCHISE AGREEMENT BTWN CITY OF
KENT AND GOLDFINCH COMMUNICATIONS, LLC - 1
EXHIBIT *B!
(Acc ept anc e of Fr anchi s e)
Franchise issued 20
I,am the authorized representative to accept the
above-referencedFranchiseonbehalfof.Icertify
that this Franchise and all terms and conditions thereof are accepted by
without qualification or reservation, and that
unconditionally guarantee(s) performance of all such
terms and conditions.
DATED this _ day of 20
Its
Tax Payer ID#
STATE OF
ss.
CITY OF
I certify that I know or have satisfactory ' evidence that
is the person who appeared before me, and said person
acknowledged that said person signed this instrument, on oath stated that said person was
authorized to execute the instrument and acknowledged it (as the
of a
corporation) to be the free and voluntary act of such corporation/individual for the uses
and purposes mentioned in the instrument.
Dated this day of
(Signature of Notary)
PrintName
Notary public in and for the state of
residing at
My appointment expires
EXHIBITB
TO FRANCHISE AGREEMENT BTWN CITY OF
KENTAND GOLDFINCH COMMUNICATIONS, LLC - 1
EXHIBIT "C
(Env ir onmental Inde mni ty)
1. Duty to IndemnifyiRelease/Defend. Franchisee assumes the risk that
Hazardous Substances or'other adverse matters may affect the Franchise Area that were
not revealed by Franchisee inspection and indemnifies, holds harmless, and hereby
waives, releases, and discharges forever the City and City's offrcers, employees, and
agcnts (collcctivcly o'Indemnitees") from any and all present or future claims or
demands, and any and all damages, losses, injuries, liabilities, causes of actions
(including, without limitation, causes of action in tort), costs and expenses (including,
without limitation fines, penalties, judgments, and attomeys' fees), of any and every kind
or character, known or unknown, which Franchisee might have asserted or alleged
against Indemnitees arising from or in any way related to the condition of the Franchise
Area or alleged presence, use, storage, generation, manufacture, transport, release, leak,
spill, disposal, or other handling of any Hazardous Substances in, on or under the
Franchise Area (the o'Franchisee Losses"). Franchisee Losses shall include, without
limitation, (a) the cost of any investigation, removal, or Remedial Action (defined below)
that is required by any Environmental Law, that is required by judicial order or by order
of or agreement with any govemmental authority, or that is necessary or otherwise
reasonable under the circumstances, (b) losses for injury or death of any person, and (c)
losses arising under any Environmental Law enacted after the date hereof. Except as may
be limited below, Franchisee Losses specifically include losses sustained by Franchisee
as a result of any obligation of Franchisee to remove, close, Remediate, reimburse, or
take other actions requested or required by aoy govemmental agency concerning any
Hazardous Substances on the Franchise Area. Notwithstanding the above, Franchisee
Losses waived, released, and discharged hereunder by Franchisee shall not include losses
as a result of releases or contamination caused by the acts of the City after the Effective
Date. The rights, duties, and obligations of the City and Franchisee pursuant to Sections
2 and 3 herein apply to the duty to indemnify and defend as provided in this Section 1.
2. Discovery V/ithin Franchise Area. In the event that the V/ork of the
Franchisee in, on, and upon the Franchise Area results in the discovery of the presence of
Hazardous Substances (ooDiscovered Matters") in, on, or upon the areas excavated or
otherwise opened or exposed by Franchisee within the Franchise Area (the "Excavated
Areaso'), the Franchisee shall immediately notifr the City and take whatever other
reporting action is required by applicable Environmental Law as it relates to the
Discovered Matters in the Excavated Areas. In the event that, as a result of such
discovery, an agency rvith jurisdiction to address Hazardous Substarices in, on, or upon
the Franchise Area (ooEnvironmental Authority") orders, obtains a judgment or court
order requiring, or otherwise exercises its authority to require Remedial Actions to be
taken by the City or Franchisee, or Franchisee decides to undertake Remedial Actions
independently or enter into a consent order or consent decree with an Environmental
Authority, then in such event, Franchisee agrees to indemnifu, defend, and hold the City
harmless from and against the cost of all Remedial Actions which are required by the
EXHIBIT C
TO FRANCHISE AGREEMENT BTWN CITY OF
KENT AND GOLDFINCH COMMUNICATIONS, LLC - 1
Environmental Authority within the Excavated Areas under the applicable Environmental
Laws with respect to the Discovered Matters; provided, however, the City, subject to the
provisions of Section 3 below, shall be solely responsible for all necessary Remedial
Actions which are required by the Environmental Authority within other portions of the
Franchise Area (outside the Excavated Areas) under the applicable Environmental Laws
with respect to the Discovered Matters.
3. Release bv Franchisee. In the event the Franchisee's Work, in, on, or
upon the Franchise Area within the Excavated Areas results in a release (as determined
under applicable Environmental Laws) of Hazardous Substances which were, before such
activities, confined to areas within the Excavated Areas, but which after such activities by
Franchisee are released beyond the Excavated Areas, and if the release is caused in whole
or in part by the Franchisee, then the Franchisee shall indemnify, defend, and hold the
City harmless from the costs of all necessary Remedial Actions which are required under
the applicable Environmental Laws, to the extent of Franchisee's share of the liability for
the release. Franchisee's liability for the release may, inter alia, be determined by
Franchisee's admission of the same, or as determined by a final non-appealable decision
by a court of competent jurisdiction, or as provided in a final non-appealable
administrative order issued by the Environmental Authority, or by a consent decree
entered by Franchisee and the Environmental Authority.
EXHIBIT C
TO FRANCHISE AGREEMENT BTWN CITY OF
KENT AND GOLDFINCH COMMUNICATIONS, LLC - 2
EXHIBIT "D"
(Insur ance Requirements)
1. General Requirement. Commencing upon issuance of the first Permit under
this Franchise, Franchisee must have adequate insurance at all times while Franchisee owns
or operates Facilities in the Public Rights-oÊWay, to protect the City against claims for
death or injuries to Persons or damages to properly or equipment which in any way relate to,
arise from, or are connected with this Franchise or involve the Facilities, Franchisee, its
agents, representatives, contractors, subcontractors and thcir cmployecs.
2. Minimum lnsurance Limits. The Franchisee shall maintain the following
minimum insurance coverages and limits:
2.1 Commercial General Liabilitv: insurance to cover liability, bodily
injury, and property damage. The Commercial General Liability insurance shall be
written on an occurrence basis, with an aggregate limit location endorsement for the
Franchise Area, and shall provide coverage for any and all costs, including defense costs,
and losses and damages resulting from personal injury, bodily injury and death, property
damage, products liability and completed operations. Such insurance shall include broad
form and blanket contractual coverage, including coverage for the Franchise as now or
hereafter amended, and specific coverage for the indemnity provisions set forth herein.
Coverage must be written with the following limits of liability:
$2,000,000 per occturence;
$4,000,000 general aggregate; and
$ 1,000, 0 00 products/completed operations aggregate.
2.2 Automobile Liabilitv: shall include owned, hired, and non-owned
vehicles on an occuffence basis with coverage of at least $2,000,000 per occurrence.
2.3 Workers Compensation Insurance: shall be maintained during the
life of this Franchise to comply with statutory limits for all employees, and in the case
any work is sublet, the Franchisee shall require its contractors and subcontractors
similarly to provide workers' compensation insurance for all their employees. The
Franchisee shall also maintain, during the life of this policy, employer's liability
insurance with limits of $1,000,000 each occurrence.
2.4 Excess or Umbrella Liabilitv: $5,000,000 per occurrence and
$5,000,000 policy limit.
2.5 Pollution Lesal Liability Insurance: (At the option of the City)
$5,000,000 per occurrence and $10,000,000 in the aggregate.
3. Endorsements. Franchisee Commercial General Liability insurance policies
are to contain, or be endorsed to contain, the following:
EXHIBITD
TO FRANCHISE AGREEMENT BTWN CITY OF
KENT AND GOLDFINCH COMMUNICATIONS, LLC . 1
3.1 The Franchisee's insurance coverage shall be primary insurance with
respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained
by the City shall be in excess of the Franchisee's insurance and shall not contribute to it.
3.2 Franchisee, through policy endorsement, shall waive its rights of
subrogation against the City for all claims and suits.
3.3 That the coverage shall apply separately to each insured against
whom a claim is made or suit is brought, except with respect to the limits of the insurer's
liability.
3.4 The Franchisee's insurance shall name the City as an additional
insured, and other Persons to whom the City is obligated under separate agteement or by
Law, to protect or insure as an additional insured, from and against Liabilities arising out of
work performed in the Public Rights-oÊWay under a grant of authority of the City.
3.5 The Franchisee's insurance shall include a requirement that the
"railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG
24 17.
3.6 The insurance coverages and limits provided herein shall not be
canceled or reduced, nor the intention not to renew be stated so as to be out of
compliance with the requirements herein without thirty (30) days written notice, certified
mail, return receipt requested, first being given to the City. If the insurance is canceled or
reduced in coverage, Franchisee shall provide a replacement policy.
4. Acceptability of Insurers. Each insurance policy obtained pursuant to this
Franchise shall be issued by financially sound insurers who may lawfully do business in
the state of V/ashington with a financial strength rating at all times during coverage of no
less than an"A" and in a financial size category of no less than "X", in the latest edition
of "Best's Rating Guide" published by A.M. Best Company. In the event thaf at any time
during coverage, the insurer does not meet the foregoing standards, Franchisee shall give
prompt notice to the City and shall seek coverage from an insurer that meets the
foregoing standards. The City reserves the right to change the rating or the rating guide
depending upon the changed risks or availability of other suitable and reliable rating
guides.
5. Verification of Coverage. The Franchisee shall fumish the City with signed
certificates of insurance and a copy of the amendatory endorsements, including, but not
necessarily limited to, the additional insured endorsement, evidencing the Automobile
Liability, Commercial General Liability and Umbrella or Excess insurance of the Franchisee
upon acceptance of this Franchise. The certificate for each insurance policy is to be signed
by a Person authorized by that insurer to bind coverage on its behalf. The certificate for
each insurance policy must be on standard forms or on such forms as aÍe consistent with
EXHIBIT D
TO FRANCHISE AGREEMENT BTWN CITY OF
KENT AND GOLDFINCH COMMUNICATIONS, LLC -2
standard industry practices. The Franchisee hereby warrants that its insurance policies
satis$ the requirements of this Franchise.
6. Deductible. The Commercial General Liability insurance policy and
coverage required herein may include a reasonable deductible not to exceed ten percent
(10%) of the minimum per occurrence Commercial General Liablity policy limits;
provided, however, that if Franchisee elects to include any deductible, Franchisee shall
itself directly cover, in lieu of insurance, any and all City Liabilities that would otherwise
in accordance with the provisions of this Franchise be covered by Franchisee's insurance
if Franchisee elected not to include a deductible. Such direct coverage by Franchisee
shall be in an amount equal to the amount of Franchisee's actual deductible.
7. No Limitation. Franchisee's maintenance of insurance policies required by
this Franchise shall not be construed to excuse unfaithful performance by Franchisee or limit
the liability of Franchisee to the coverage provided in the insurance policies, or otherwise
limit the City's recourse to any other remedy available atLaw or in equþ.
8. Modifications of Coverages and Limits. The City reserves the right,
during the term of the Franchise, to require any other insurance coverage or adjust the
policy limits as it deems reasonably necessary utilizing sound risk management practices
and principals based upon the loss exposures. Prior to imposing such additional coverage
or adjusting existing required coverages or limits, the City shall provide reasonable notice
to the Franchisee and an opportunity to provide comments, and the City shall review and
consider such comments that are timely made.
9. Public Franchisees. Franchisee Commercial General Liability,
Automobile Liablity and Umbrella Coverage insurance policies and coverage required
herein for Public Franchisees may include a reasonable self-insured retention; provided,
however, that as to any self-insured retention, Franchisee shall itself directly cover, in
lieu of insurance, any and all City liabilities that would otherwise in accordance with the
provisions of this Franchise be covered by Franchisee insurance if Franchisee elected not
to include a self-insured retention. Such direct coverage by Franchisee shall be in an
amount equal to the amount of Franchisee's actual self-insured retention. "Public
Franchisee" for purposes of this Section 9 shall mean and include, any Franchisee
organized as a political subdivision of the state of Washington, but shall not mean or
include agents, contractors, and subcontractors ofFranchisee that are not also organized
as political subdivisions. Franchisee shall be required to provide verification of selÊ
insurance retention coverage in a form and content acceptable to the City.
EXHIBITD
TO FRANCHISE AGREEMENT BTWN CITY OF
KENT AND GOLDFINCH COMMUNICATIONS, LLC - 3
EXHIBIT T'E'
(Financial Security)
1. Performance Bond.
l.l Franchisee shall provide to the City a faithful performance and
payment bond in the initial amount of $5001000 to ensure the full and faithful performance
of all of its responsibilities under this Franchise and applicable Laws, including, by way
of example and not limitation, its obligations to relocate and remove its Facilities, to
restore the Public Rights-of-V/ay and other property when damaged or disturbed, and to
reimburse the City for its Direct Costs.
1.2 The performance bond shall be in a form with terms and conditions
acceptable to the City and reviewed and approved by the City Attorney.
1.3 The performance bond shall be with a surety with a rating no less
than o'A X" in the latest edition of ooBests Rating Guide," published by A.M. Best
Company.
1.4 The Franchisee shall pay all premiums or costs associated with
maintaining the perforTnance and payment bond, and shall keep the same in full force and
effect at all times. If Franchisee fails to provide or maintain the bond, then the City, in its
sole discretion, may require Franchisee to substitute an equivalent cash deposit as
described below in lieu of the bond.
1.5 Franchisee's maintenance of the bond(s) shall not be construed to
excuse unfaithfii performance by Franchisee, limit the liability of Franchisee to the amount
of the bond(s), or otherwise limit the City's recourse to any other remedy available at Law
or in equity.
1.6 The amount of the bond may, in the reasonable discretion of the
City, be adjusted by the City to take into account (1) cumulative inflation, (2) increased
risk to the City, (3) the experiences of the Parties regarding Franchisee compliance with
its obligations under the Franchise, and (4) issuance of Permits for installation of new
Facilities. Prior to adjusting the amount of the bond, the City shall provide reasonable
notice to the Franchisee and an opportunity to provide comments, and the City shall
review and consider such comments that are timely made.
2. Cash f)enosit/Irrevocahle Letter of Credit in Lieu of Ronrl
Franchisee may, at its election or upon order by the City pursuant to Section 4
herein, substitute an equivalent cash deposit with an escrow agent approved by the City
or an irrevocable letter of credit in form and content approved by the City Attorney,
instead of a performance and payment bond. This cash deposit or irrevocable letter of
credit shall ensure the full and faithful performance of all of Franchisee's responsibilities
EXHIBITE
TO FRANCHISE AGREEMENT BTWN CITY OF
KENT AND GOLDFINCH COMMUNICATIONS, LLC - I
hereto under this Franchise and all applicable Laws. This includes, but is not limited to,
Franchisee's obligations to relocate or remove its Facilities, restore the Public Rights-of-
V/ay and other property to its original condition, and reimburse the City for its costs.
The City shall notify Franchisee in writing, by certified mail, of any default and
shall give Franchisee thirty (30) days from the date of such notice to cure any such
defauli. In the event that the Franchisee fails to cure such default to the satisfaction of the
City, the City may, at its option, draw upon the cash deposit or letter of credit up to the
amount of the City's costs incurred to cure Franchisee's default. Upon the City's cure of
Franchisee's default, the City shall notify Franchisee in writing of such cure.
In the event that the City draws upon the cash deposit or letter of credit,
Franchisee shall thereupon replenish the cash deposit or letter of credit to the fulI amount
as specified herein or provide a replacement performance and payment bond.
3. Restoration Bond.
3.1 Unless otherwise provided in a Permit issued by the City for work
within the Public Rights-of-V/ay, or by City ordinance, code, rule, regulation or
Standards, the City may require Franchisee to enter into a performance agreement,
secured by a restoration bond written by a corporate surety acceptable to the City equal to
at least one hundred and fifty percent (150%) of the estimated cost of restoring the Public
Rights-of-Way to their pre-Construction condition in accordance with Section 7 -12 of the
Franchise. Such restoration bond shall be deposited before Construction is commenced.
Such restoration bond may be required, when the City determines that the Performance
and Payment Bond or cash deposit/letter of credit is not suffrcient to protect the interests
of the City for Permitted Work.
3.2 Said restoration bond, or a separate bond acceptable to the City,
shall warrant all such restoration work fbr a period of two (2) years.
3.3 In the event that a bond issued to meet the requirements of this
Section is canceled by the surety, after proper notice and pursuant to the terms of said
bond, Franchisee shall, prior to expiration of said bond, be responsible for obtaining a
replacement bond which complies with the terms of this Section.
3.4 The performance agreement shall guarantee, to the satisfaction of
the City:
3.4.1 Timely completion of Construction;
3.4.2 Construction in compliance with applicable approved
plans, utility Permits, technical codes, and Standards;
3.4.3 Proper location of the Facilities as approved by the City;
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3.4.4 Restoration of the Public Rights-oÊWay and other public
or private property disrupted, damaged, or otherwise affected by the Construction. The
performance agreement shall warrant said restoration work for a period of two (2) years;
3.4.5 The submission of oorecord" drawings after completion of
the Work; and
3.4.6 Timely payment and satisfaction of all claims, demands, or
liens for labor, material, or Services provided in connection with the V/ork.
4. Security Fund.
4.1 If there is a material Breach by Franchisee or a pattem of repeated
Breaches, then Franchisee shall, upon written request of the City, establish and provide to
the City a cash deposit or irrevocable letter of credit from a local financial institution
satisfactory to the City, in a form and content approved by the City Attomey, and in the
amount of five hundred thousand ($ 500,000). Such cash deposit, irrevocable letter of credit
shall be established as security for the full and faithful performance of all of its
responsibilities under this Franchise and applicable Laws, including, by way of example
but not limited to, its obligations to relocate and remove its Facilities, to restore the
Public Rights-of-Way and other property when damaged or disturbed, and to reimburse
the City for its costs.
4.2 If a cash deposit or letter of credit is fumished pursuant to Section 2,
the cash deposit or letter of credit shall then be maintained at that same amount throughout
the remaining term of this Franchise.
4.3 Upon a Material Breach, the cash deposiVletter of credit may be
drawn upon by the Cþ for purposes including, but not limited to, the following:
4.3.1 Failure of Franchisee to pay the City sums due under the
terms of this Franchise;
4.3.2 Reimbursement of costs and expenses bome by the City to
correct Franchise violations not corrected by Franchisee; and
4.3.3 Monetary remedies or damages assessed against Franchisee
as provided in this Franchise.
4.4 Within three (3) days of a withdrawal from the security fund, the
City shall mail, by certified mail, return receipt requested, written notification of the
amount, date, and purpose of such withdrawal to the Franchisee.
4.5 V/ithin thirty (30) days following notice that a withdrawal from the
cash deposit/letter of credit has occurred, Franchisee shall restore the cash deposilletter of'
credit to the full amount required by Section 4.1. If at the time of a withdrawal from the
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security fund by the City, the amounts available are insufficient to provide the total
payment towards which the withdrawal is directed, the balance of such payment shall
continue as the obligation of the Franchisee to the City until it is paid.
4.6 Upon termination of the Franchise under conditions other than
those stipulating forfeiture of the security fund, the balance then remaining in the security
fund shall be returned to the Franchisee within sixty (60) days of such termination,
provided that there is then no outstanding default on the part of the Franchisee.
4.7 Failure to maintain or restore the security fund or letter of credit
shall constitute a Breach of this Franchise.
4.8 In the event Franchisee believes that the letter of credit was drawn
upon improperly, Franchisee shall give notice to the City.
4.9 The rights reserved to the City herein are in addition to all other
rights of the City, whether reserved herein or authorized by applicable Law, and no
action, proceeding, or exercise of a right with respect to such security fund or letter of
credit will affect any other right the City may have. Neither the filing of a letter of credit
with the City, nor the receipt of any damages recovered by the City thereunder, shall be
construed to excuse faithful performance by the Franchisee or limit the liability of the
Franchisee under the terms of its Franchise for damages, either to the full amount of the
letter of credit or otherwise. The City reserves the right to increase the amount of the
cash deposit or irrevocable letter of credit depending upon factors that bear upon the
increased risk of the City and inflation; provided that, such an increase shall be
implemented nor more often than once every five (5) years, and shall not increase such
amount by more than I50o/o of the then-existing amount required to be on deposit or
specified in the irrevocable letter of credit.
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EXHIBIT "F'
(C ontr act or/Sub c ontr act or Ins ur anc e Re quir e ment s)
l. General Requirement. Prior to commencing and during the period of Work
performed within the Franchise Area, Franchisee contractors and subcontractors (hereafter
the 'oContractors") must have in place adequate insurance to protect the City against claims
for death or injuries to Persons or damages to property or equipment which in any way
relate to, arise from, or are connected with this Work.
2. Minimum Insurance Limits. The Contractors shall maintain the following
minimum insurance coverages and limits:
2.1 Commercial General Liabilitv: insurance to cover liability, bodily
injury, and property damage. The Commercial General Liability insurance shall be
written on an occuffence basis, with an aggregate limit location endorsement for the
Franchise Area, and shall provide coverage for any and all costs, including defense costs,
and losses and damages resulting from personal injury, bodily injury and death, property
damage, products liability, and completed operations. Coverage must be written with the
following limits of liability:
$1,000,000 per occrÍrence;
$2,000,000 general aggregate; and
$ 1,00 0, 000 products/completed operations aggregate
2.2 Automobile Liability: shall include owned, hired, and non-owned
vehicles on an occuffence basis with coverage of at least $1,000,000 per occturence.
2.3 Workers Compensation Insurance: shall be maintained during the
period of such Work to comply with statutory limits for all employees.
3. Endorsements. Commercial General Liability insurance policies are to
contain, or be endorsed to contain, the following:
3.1 The Contractor's insurance coverage shall be primary insurance with
respect to the City. Any insurance, selÊinsurance, or insurance pool coverage maintained
by the City shall be in excess of the Contractor's insurance and shall not contribute to it.
3.2 Contractor, through policy endorsement, shall waive its rights of
subrogation against the City for all claims and suits.
3.3 Coverage shall apply separately to each insured against whom a
claim is made or suit is brought, except with respect to the limits of the insurer's liability.
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3.4 The Contractor's insurance shall name the City as an additional
insured, and other Persons to whom the City is obligated under separate agreement or by
Law, to protect or insure as an additional insured, from and against Liabilities arising out of
Work performed in the Public Rights-oÊWay under a grant of authority of the City.
3.5 The Contractor's insurance shall include a requirement that the
oorailroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG
24 17.
3.6 The insurance covelages and limits provided herein shall not be
canceled or reduced, nor the intention not to renew be stated so as to be out of
compliance with the requirements herein without thirty (30) days' written notice, certified
mail, return receipt requested, first being given to the City. If the insurance is canceled or
reduced in coverage, Franchisee shall provide a replacement policy.
4. Acceptability of Insurers. Each insurance policy required herein shall be
issued by financially sound insurers who may lawfully do business in the state of
V/ashington with a financial strength rating at all times during coverage of no less than an
ooA-" and in a financial size category of no less than "IX", in the latest edition of "Best's
Rating Guide" published by A.M. Best Company. In the event that at any time during
coverage the insurer does not meet the foregoing standards, Contractor shall give prompt
notice to the City and shall seek coverage from an insurer that meets the foregoing
standards. The City reserves the right to change the rating or the rating guide depending
upon the changed risks or availability of other suitable and reliable rating guides.
5. Verification of Coverage. The Franchisee shall furnish the City with
Contractors' signed certificates of insurance and a copy of the amendatory endorsements,
including, but not necessarily limited to, the additional insured endorsement, evidencing the
Automobile Liability, and Commercial General Liability policies of the Contractors. The
certificate for each insurance policy is to be signed by a Person authorized by that insurer to
bind coverage on its behalf. The certificate for each insurance policy must be on standard
forms or on such forms as are consistent with standard industry practices.
6. Deductible. Commercial General Liability insurance policies and
coverage required herein may include a reasonable deductible not to exceed ten percent
(10%) of the minimum per occurrence commercial general liablity policy limits;
provided, however, if Contractor elects to include any deductible, Contractor shall itself
directly cover, in lieu of insurance, ffiy and all City liabilities that would otherwise in
accordance with the provisions of these requirements be covered by Contractor's
insurance if Contraotor elected not to include o deductible. Such direct coveroge by
Contractor shall be in an amount equal to the amount of Contractor's actual deductible.
7. No Limitation. Contractor's maintenance of insurance policies required
herein shall not be construed to excuse unfaithful performance by Franchisee or limit the
liability of Franchisee or Contractor to the coverage provided in the insurance policies, or
otherwise limit the City's recourse to any other remedy available atLaw or in equity.
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8. Modifications of Coverages and Limits. The City reserves the right,
during the term of the Franchise, to require any other insurance coverage or adjust the
policy limits as it deems reasonably necessary utilizing sound risk management practices
and principals based upon the loss exposures. Prior to imposing such additional coverage
or adjusting existing required coverages or limits, the City shall provide reasonable notice
to the Franchisee and an opportunity to provide comments, and the City shall review and
consider such comments that are timely made.
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Exhibit "G"
(Form of Transfer Agreement)
THIS TRANSFER AGREEMENT (ooAgreement") is made this _ day of
20-, by and between:
1. PARTIES.
1.1 City of **, a legal subdivision of the state of Washington ("City")
1.2
1.3
("Franchisee").
("Transferee").
RECITALS
WHEREAS, the City has issued a single Franchise (the o'Franchise") to
Franchisee, which was authorized on the _ day of 20-,
pursuant to Ordinance No. _; and
WHEREAS, Franchisee has reached an agreement with Transferee on a (describe
transaction, example: conveyonce of benefited property)
to (example:
acquire from Franchisee its facilities and equipment located in the Public Rights-of-Wcty)
WHEREAS, Franchisee and Transferee have requested that the City approve a
transfer ofthe Franchise from Franchisee to Transferee; and
V/HEREAS, as a result of the transfer of the Franchise, Transferee will assume all
rights, duties, and obligations that Franchisee has under the Franchise, will be responsible
for full compliance with the Franchise, and will meet or exceed all applicable and lawful
federal, state, and local requirements; and
V/HEREAS, relying on the representations macle hy the Transferee ancl
Franchisee, the City, on the _ day of 20-, has, pursuant to Resolution
No and the Franchise, approved the transfer upon the terms and conditions
as stated herein;
EXHIBIT G
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and
NOW, THEREFORE, in consideration of the City's approval of the transfer,
subject to the terms and conditions of this Agreement, THE PARTIES DO HEREBY
AGREE as follows:
2. TRANSFER. Transfer of the Franchise shall be effective upon the following
conditions precedent:
2.1 Receipt by the City of the fully executed Acceptance of Franchise and
Performance Guarantee attached hereto as Exhibit E-l together with all required
certificates of insurance, security funds, and performance bonds.
2.2 Payment to the City of the Transfer fees.
2.3 The date of closing of the sale/conveyance of the property benefited by
this Franchise and/or the Cable System Facilities located in the Franchise Atea, or upon a
date as mutually agreed to by the City, Franchisee and Transferee as follows:
3. ACCEPTANCE OF FRANCHISE OBLIGATIONS.
3.1 The Franchisee and Transferee hereby accept, acknowledge, and agree
that neither the proposed transaction between Franchisee and Transferee nor the City's
approval of this Agreement shall diminish or affect the existing and continuing
commitments, duties, or obligations, present, continuing, and future, of the Franchisee
and Transferee embodied in the Franchise.
3.2 Transferee and Franchisee agree that (a) neither the Transfer nor the City's
approval of this Agreement and the resulting Transfer shall in any respect relieve
Franchisèe, or any of its successors in interest, of any obligation or liability relating to all
lawful requirements to Construct, operate, and maintain its Cable System Facilities and
equipment located in the Public Rights-of-V/ay, occurring prior to the Transfer of the
Franchise or of responsibility for acts or omissions occurring prior to the Transfer, known
or unknown, or the consequences thereof, and (b) neither the Transfer nor the City's
approval of the Transfer shall in any respect relieve Franchisee of any obligation or
liability occurring prior to the Transfer of the Franchise or of responsibility for acts or
omissions occurring prior to the Transfer, known or unknown, or the consequences
thereof.
3.3 The Transfer is not intended and shall not be construed to authorize the
Franchisee to take any position or exercise any right that could not have been exercised
prior to the Transfer.
3.4 Notwithstanding anything to the contrary herein, Transferee shall not be
responsible for any of Franchisee's financial liabilities and obligations under the
Franchise or pursuant to City code, rules, and regulations and other applicable Laws that
accrued before the Transfer of the Franchise.
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3.5 The City waives none of its rights with respect to the Franchisee's or
Transferee's compliance with the terms, conditions, requirements, and obligations set
forth in the Franchise. The City's approval of this Agreement shall in no way be deemed
a representation by the City that Franchisee is in compliance with all of Franchisee's
obligations under the Franchise.
3.6 Franchisee and Transferee acknowledge and agree that the City's approval
and acceptance of this Agreement and the resulting Transfer is made in reliance upon the
representations, documents, and information provided by the Franchisee and Transferee
in connection with the request for Transfer.
4. MISCELLANEOUS PROVISIONS.
4.1 Conditions Precedent. The Agreement shall be effective and binding upon
the signatories once it has been signed by all signatories; provided that, within 30 days of
execution of the Agreement by all of the signatories, Transferee has provided to the City
the following: (1) all fees required for this Transfer; (2) its acceptance of the franchise in
substantially the form of the document attached hereto as Exhibit E-l; (3) its insurance
certificate in conformance with the requirements of the Franchise; (4) a perfoffnance
bond or cash deposit in conformance with the requirements of the Franchise.
4.2 Entire Agreement. The Agreement constitutes the entire agreement of the
Parties with respect to the matters addressed herein. No statements, promises, or
inducements inconsistent with the Agreement made by any Party shall be valid or
binding, unless in writing and executed by all Parties.
4.3 Binding Acseptance. The Agreement shall bind and benefit the Parties
hereto and their respective heirs, beneficiaries, administrators, executors, receivers,
trustees, successors, and assigns, and the promises and obligations herein shall survive
the expiration date hereof. Any purported transfer of the Agreement is void without the
express written consent of the signatories,
4.4 everabili . In the event that the Agreement shall, to any extent, be held
to be invalid, preempted, or unenforceable, the remainder hereof shall be valid in all other
respects and continue to be effective.
4.5 Defined Terms. Terms not defined in this Agreement shall have the same
meaning as given in the Franchise.
4.6 Governing Law. The Agreement shall be govemed in all respects by the
laws of the state of Washington.
(Signatures on the following page)
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IN \ryITNESS \ryHEREOF the Parties hereto have executed this Agreement as of the
day and year first written above.
CITY FRANCHISEE
By: City Manager/Administrator By:
Title:
TRANSFEREE
By:
Title:
EXHIBIT G
TO FRANCHISE AGREEMENT BTWN CITY OF
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TRANSFER EXHIBIT G.l
Acceptance of Franchise and Performance Guarantee
Franchise issued pursuant to Ordinance No. and accepted
20_; Transfer authorized pursuant to Resolution No. _, effective
20
I,am the authorized representative to accept the
above-referenced Franchise on behalf of I certify
that this Franchise and all terms and conditions thereof are accepted by
without qualification or reservation and that
unconditionally guarantee(s) performance of all such
terms and conditions
DATED this day of 20
By
Its
Tax Payer ID#
STATE OF
SS
CITY OF
T certify that T know or have satisfactory evidence that
is the person who appeared before me, and said person
acknowledged that said person signed this instrument, on oath stated that said person was
authorized to execute the instrument and acknowledged it (as the
of a
corporation), to be the free and voluntary act of such corporation/individual for the uses
and purposes mentioned in the instrument.
Dated this day of
EXHIBIT G
TO FRANCHISE AGREEMENT BTWN CITY OF
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(Signature of Notary)
PrintName
Notary public in and for the state of
residing at
My appointment expires
EXHIBIT G
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