HomeMy WebLinkAboutCity Council Committees - Operations Committee - 01/15/2019 (2)
Unless otherwise noted, the Operations Committee meets at 4 p.m. on the first and third
Tuesday of each month in Kent City Hall, Council Chambers East, 220 Fourth Avenue South,
Kent, WA 98032.
For additional information please contact Cathie Everett at 253-856-5705, or via email at
CEverett@KentWA.gov.
Any person requiring a disability accommodation should contact the City Clerk’s Office at
253-856-5725 in advance. For TDD relay service call Washington Telecommunications Relay
Service at 7-1-1.
Operations Committee
Agenda
Chair - Les Thomas
Bill Boyce– Dennis Higgins
Tuesday, January 15, 2019
4:00 p.m.
Item Description Action Speaker Time
1. Call to Order Chair 01 MIN.
2. Roll Call Chair 01 MIN.
3. Changes to the Agenda Chair 01 MIN.
4. Approval of December 4, 2018
Minutes
YES Chair 05 MIN.
5. Approval of Check Summary
Reports Dated 11/16/18-
11/30/18, 12/1/18-12/15/18 &
12/16/18-12/31/18
YES Chair 05 MIN.
6. Briefing on the City's 2019
Insurance Programs
NO Risk Manager Chris Hills 05 MIN.
7. Comcast Cable Communications
Management, LLC Public
Comment Opportunity
NO Information Technology
Director Mike
Carrington
10 MIN.
8. Comcast Cable Franchise & Dark
Fiber Agreement
YES Information Technology
Director Mike
Carrington
05 MIN.
9. Consolidating Budget Adjustment
Ordinance for Adjustments
between 12/1/18 and 12/30/18
YES Deputy Finance
Director Barbara Lopez
05 MIN.
10. Adjournment Chair 01 MIN.
Page 1 of 3
Pending Approval
Operations Committee
CC Ops Regular Meeting
Minutes
December 4, 2018
Date: December 4, 2018
Time: 4:00 PM
Place: Chambers East
Attending: Les Thomas, Committee Chair
Bill Boyce, Councilmember
Dennis Higgins, Councilmember
Toni Troutner, Councilmember
Agenda:
1. Call to Order 4:00 PM
2. Roll Call
Attendee Name Title Status Arrived
Les Thomas Committee Chair Excused
Bill Boyce Councilmember Present
Dennis Higgins Councilmember Present
Toni Troutner Councilmember Present
3. Changes to the Agenda
City Attorney Pat Fitzpatrick had a walk-on item to be added as item 7.5 on
the agenda.
4. Approval of Minutes dated November 20, 2018
MOTION: Move to approve the Minutes dated November 20, 2018
RESULT: APPROVED [UNANIMOUS]
MOVER: Toni Troutner, Councilmember
SECONDER: Dennis Higgins, Councilmember
AYES: Boyce, Higgins, Troutner
5. Approval of Check Summary Report Dated 11/1/2018 to 11/15/2018
MOTION: Move to approve the check summary report dated
11/1/2018 to 11/15/2018.
RESULT: APPROVED [UNANIMOUS]
MOVER: Dennis Higgins, Councilmember
SECONDER: Toni Troutner, Councilmember
AYES: Boyce, Higgins, Troutner
6. Stoplight Traffic Safety Camera Ordinance
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Operations Committee CC Ops Regular Meeting
Minutes
December 4, 2018
Kent, Washington
Page 2 of 3
Commander Todd Durham and Assistant City Attorney Ifeoma Canfield
presented an ordinance to amend chapter 9.36.150, "Stoplight traffic safety
cameras", of the Kent City code. This section of the ordinance approved by
Committee on November 20, 2018 provides for a fine of $124 per violation.
The Department intended the fine for a violation to match the base fine for
similar infractions not captured by automated traffic safety cameras which is
$136. Therefore staff returned the ordinance to Committee for approval with
the corrected fine amount. All other sections of the ordinance remain the
same.
MOTION: Recommend Council adopt an ordinance amending Chapter 9.36
of the Kent City Code by adding the new section 9.36.150 entitled, “Stoplight
traffic safety cameras."
RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS] Next: 12/11/2018
7:00 PM
MOVER: Toni Troutner, Councilmember
SECONDER: Dennis Higgins, Councilmember
AYES: Boyce, Higgins, Troutner
7. School Speed Zone
Commander Todd Durham and Assistant City Attorney Ifeoma Canfield
presented an ordinance which amends Kent City Code section 9.36.140
increasing the base fine for a school speed zone infraction from $124 to
$136. The fine has not been adjusted since it was established in 2013 and
the proposed amount is consistent with currently imposed fines for many
similar infractions in Kent, as well as being consistent with the standard fine
in the RCWs.
MOTION: Recommend Council adopt the proposed ordinance which amends
Kent City Code section 9.36.140 to increase the base fine for an infraction
committed in a school speed zone from $124 to $136.
RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS] Next: 12/11/2018
7:00 PM
MOVER: Dennis Higgins, Councilmember
SECONDER: Toni Troutner, Councilmember
AYES: Boyce, Higgins, Troutner
8. 7.5 Ordinance Dedicating Right of Way at Morrill Meadows Park -
Recommend
City Attorney Pat Fitzpatrick presented an ordinance that dedicates a portion
of City-owned property at Morrill Meadows Park that abuts SE 248th street
for both right-of-way and overflow purposes. As part of the development of
the joint YMCA and Morrill Meadows Park project, frontage improvements
need to be constructed on the north side of SE 248th street. In order to
construct the required improvements it is necessary for the City to dedicate
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Operations Committee CC Ops Regular Meeting
Minutes
December 4, 2018
Kent, Washington
Page 3 of 3
and define five feet of City-owned land for right of way purposes. Ten
additional feet are suggested for dedication for overflow purposes to be
available as the City may authorize for public utilities, cable and
telecommunication service providers, and other franchisees and licensees.
MOTION: Recommend Council adopt an ordinance that dedicates a
portion of City-owned property at Morrill Meadows Park that abuts SE
248th Street for both right-of-way and overflow purposes, to be
available as the City may authorize for public utility, cable and
telecommunication service providers, and other franchisees and
licensees.
RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS] Next: 12/11/2018
7:00 PM
MOVER: Toni Troutner, Councilmember
SECONDER: Dennis Higgins, Councilmember
AYES: Boyce, Higgins, Troutner
9. Investment Report
Senior Financial Analyst Joe Bartlemay presented the third quarter
investment report for 2018. The current investment total is $197,794,681.
Nineteen investment trades were initiated and the City added an additional
$40 million to the managed portfolio. Interest earnings in the third quarter
were $896,626.85 and year-to-date interest revenue is $2,167,024.04.
10. October Financial Report
Finance Director Aaron BeMiller presented the October finance report. This
will be the last finance report for 2018. A year-end final 2018 presentation
will come in 2019 after the books are closed. Analysis through October shows
an overall positive budget variance of $6.4 million. Estimated expenditures
for 2018 are $108,902,299. General fund reserves are estimated to end the
year at $20.3 million, or 18.6% of estimated 2018 expenditures. Revenues
are estimated to end the year approximately $5.8 million higher than
budgeted. Through October all departments are remaining fairly close to
budget with an overall budget variance of $568 thousand.
11. Adjournment 4:24 PM
The meeting was adjourned at 4:24 p.m.
Cathie Everett
Committee Secretary
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: January 15, 2019
TO: Operations Committee
SUBJECT: Approval of Check Summary Reports Dated 11/16/18-
11/30/18, 12/1/18-12/15/18 & 12/16/18-12/31/18
MOTION: Move to approve the check summary reports dated 11/16/18-
11/30/18, 12/1/18-12/15/18 and 12/16/18-12/31/18
SUPPORTS STRATEGIC PLAN GOAL:
Sustainable Services
RECOMMENDED BY: Aaron BeMiller
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: January 15, 2019
TO: Operations Committee
SUBJECT: Briefing on the City's 2019 Insurance Programs
SUMMARY:
Liability – For 2019 the City’s Self-Insured Retention (SIR) remains $500,000 per
loss. Our first layer ($5M excess of City SIR) reinsurer (Safety National) is pleased
with current loss development (2 defense verdicts during 2018), thus a minimal
rate increase in that layer (.17%). In the second layer ($15M excess of $5M),
however, some market volatility due to increased municipal loss experience
nationally, caused our carrier (Allied World Assurance) to propose significant
premium increase. To minimize this impact, we have entered into a quota-share
arrangement in that layer by adding another carrier (Markel) on 1/3 of the risk in
that layer. This is a positive development in that adding another carrier familiarizes
them with our program which may be helpful for future renewals if the market
hardens. Thus, the overall increase for both layers is 1.9% above 2018 premium.
We have also added another layer of coverage ($5M excess of $20M) for very little
premium ($17,850). This combined level of coverage is now becoming the
standard for municipal liability. Additional information is provided in the
accompanying packet for discussion at the briefing.
Worker Compensation – Due to the tragedy of July 22nd, our Excess Worker
Comp insurer has imposed a new $600,000 SIR (up from $500,000 in 2018).
Additionally, after significant loss payments in 2018, a premium increase of 17%
was included in the renewal. A 2-year flat premium was negotiated, which, barring
any unforeseen events, ensures a consistent rate through 2020.
Cyber Risk – This coverage was renewed at the same premium as 2018
($33,000). Limits remain the same.
SUPPORTS STRATEGIC PLAN GOAL:
Sustainable Services
ATTACHMENTS:
1. 2019 Insurance Ops Comm Kent (PDF)
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2019 Insurance Program
Re view and Update
1/15/2019
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2018 Liability Loss Development
•Loss development has improved over the past year
•New SIR ($500,000) which began in 2018 is a better fit for our
program
•2 trials during 2018 (Pursuit and Excessive Force). Both
resulted in Defense verdicts. Costs above $250K were
reimbursed
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2019 Liability Re insurance Renewal
•1st layer ($5M exc ess of our SIR) is flat
•2nd layer ($15M exc ess of $5M) –some volatility
–Now a quota share arrangement
–4.3% increase in this layer
•Overall rate increase is 1.9%
•3rd layer ($5M exc ess of $20M) is new
–Gets us to a higher level of coverage, in line with pools and other cities
–Rate was quite low
•Adding 2 new carriers is good
•Includes $10,000 Loss Control grant
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Liability Placement Structure
Expiring Liability Placement
Effective 1/1/18
Proposal Renewal
Liability Placement
Effective 1/1/19
$25M Scion Underwriting (Lloyd’s of London)
$5M x $20M
$20M
AWAC
$15M XS $5M
$20M
Markel
(Evanston)
$5M p/o $15M
XS $5M
AWAC
$10M p/o $15M
XS $5M
$5M
Safety National
$5M x SIR
$5M
Safety National
$5M X SIR
$500K Self-Insured Retention (SIR)$500K Self-Insured Retention (SIR)
Total: $576,450 Total (as expiring): $587,649
Total (incl. $5M x $20M): $605,875
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Histo rical Liability Premiums
Ye ar Premium % Change
2009 $1,057,000 16.2%
2010 $1,164,000 10.1%
2011 $812,375
(changed from WCIA to
Alliant/WAPEG)
-30.2%
2012 $648,500*-20.2%
2013 $671,981 3.6%
2014 $699,240 4.0%
2015 $663,768 -5.3%
2016 $664,278 0.07%
2017 $703,898 6.0%
2018 $576,654**-18.0%
2019 $587,649***4.9%
(includes $5M coverage
increase)
5*SIR raised from $100K to $250k
**SIR raised from $250K to $500K
***Coverage increased from $20M to $25M
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Liability Claims Histo ry
Ye ar Number of Claims Incurred Loss Cost
2012 111 $783,985
2013 77 $1,106,095
2014 108 $1,224,787
2015 104 $1,069,886
2016 132 $726,294
2017 125 $408,550
2018 90 *$71,244 *
Cost as of 1/1/2019
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Excess Worker Comp
•Tr agic loss on 7/22
•Lump sum pension payment for on the job
death, plus cost of injured employee
•Increase in our Retention to $600,000 per loss,
up from $500,000
•17% premium increase
•Continue with Safety National, negotiated a 2
year policy at the same rate
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Excess Worker Comp
YEAR RATE WORKER
HOURS PREMIUM SIR
2011 .045 1,529,500 $68,828 $500K Police/Fire $400K All Other
2012 .0298 1,454,000 $43,329 $500K Police $400K All Other
2013 .0341 1,467,000 $50,025 $500K All
2014 .0375 1,468,000 $55,050 $500K All
2015 .04275 1,424,000 $60,876 $500K All
2016 .0456 1,424,000 $64,934 $500K All
2017 .0456 1,440,000 $68,674 $500K All
2018 .0456 1,460,000 $68,674 $500K All
2019 .0520 1,502,000 $80,184 $600K All
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Wo rker Comp
Claims History
Ye ar Number of Claims Cost
2012 66 $288,609
2013 65 $450,780
2014 61 $1,094,720
2015 85 $538,910
2016 64 $334,138
2017 69 $425,256
2018 81 $1,491,703
As of 12/31/2018
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Cyber Risk
•Flat renewal
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: January 15, 2019
TO: Operations Committee
SUBJECT: Comcast Cable Communications Management, LLC Public
Comment Opportunity
SUMMARY: KCC 7.12.140 requires the public be provided an opportunity to
comment before a renewal cable franchise is granted. The City Clerk published
notice with the Kent Reporter on January 4th and January 11th advising the public of
this comment opportunity before the Operations Committee. Mike Carrington, IT
Director, will provide a brief staff report. The committee will then accept public
comment of up to three minutes per person.
SUPPORTS STRATEGIC PLAN GOAL:
Innovative Community
RECOMMENDED BY: Mike Carrington
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: January 15, 2019
TO: Operations Committee
SUBJECT: Comcast Cable Franchise & Dark Fiber Agreement
MOTION: Recommend Council adopt an ordinance granting a 10-year
cable franchise to Comcast Cable Communications Management, LLC,
and authorize the Mayor to sign all documents necessary to implement
the full terms of the City’s franchise grant, including the Letter
Agreement, the Settlement Agreement, and the Dark Fiber Agreement,
all subject to final terms and conditions acceptable to the City Attorney
and Director of Information Technology.
SUMMARY:
In May 1993, the City adopted Ordinance No. 3108, which granted a 15-year cable
franchise to TCI Cablevision of Washington, Inc. In 2002 control changed from TCI
to Comcast and the later assumed control of this franchise and subsequently added
I-Net services in May 2004. The original franchise was set to expire in 2008, at this
time both parties agreed that the current contract would continue as the governing
document until such time that a new cable franchise agreement was negotiated.
Franchise negotiations have started and stopped over the years, with delays being
exacerbated by staff changes in both IT and the Law Department. In 2015 and
2016 Franchise efforts began in earnest, this included updates to the City’s local
code provisions. Significant franchise negotiations then began with Comcast in late
2017 and continued throughout 2018. At the end of December, the parties were
able to reach agreement on the final issue—replacing the parties’ 2004 INET
Maintenance Agreement with a new 10-year Dark Fiber Agreement.
INET provides the City with dark fiber strands that disseminate high speed data,
voice, and video internet connectivity. This INET is currently utilized by the City, the
Puget Sound Regional Fire Authority, and the Kent School District. Under the 2004
INET Agreement, Comcast agreed to maintain the existing INET in exchange for a
maintenance fee that equals roughly $19,930 per year. During negotiations a
dispute arose between the City and Comcast concerning their respective obligations
under the current INET Agreement and whether all of its terms were intended to
apply to future franchise agreements.
In resolving the dispute, Comcast agreed to waive INET maintenance fees that
accrued prior to August 1, 2017, in the sum of $266,743, in exchange for the City
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entering into a new 10-year Dark Fiber Agreement. As part of this new agreement
the City would be charged $95,832 per year with a discounted rate for the first two
years at $23,000 and $47,916, respectively. Additionally Comcast agreed to extend
this same pricing to the Puget Sound Regional Fire Authority and the Kent School
District should they too chose to enter into agreements with Comcast for INET
connectivity, otherwise they would need to migrate off of the City’s INET within 1
year, with the Kent School District being provided up to one additional year if it
continued to negotiate in good faith with Comcast and it timely applied for available
federal funding.
In accordance with KCC 7.12.140, which provides an opportunity for public
comment before a renewal franchise is granted, the City Clerk provided notice of
the public’s opportunity to present comments in person or in writing to the
Operations Committee at its January 15, 2019, meeting.
The franchise agreement outlines the administrative provisions that apply to
Comcast’s operations within Kent, including relocation responsibility and timing,
calculation and payment of a 5% franchise fee for access and use of the public right
of way, the provision of PEG access and capital funding, and the City’s access to
Comcast’s records and plans.
BUDGET IMPACT:
Franchise Fee & Utility Tax:
2018 – Estimated $1.787M (mo. of October actuals used to calculate Nov & Dec
payments)
2018 – Budgeted $1.860M (7% decrease from 2017)
PEG Fee revenue under the new Agreement:
1st year - $0.41 per subscriber per month ($4.92 per year)
Revenue to City of $123,000 for the year ($100K PEG; $23K INET)
Additional Credit of $266,743 will be given to forgive fees owed by the City
under the prior I-Net Maintenance and Service Agreement.
2nd year - $0.50 per month ($6 per year)
Revenue to City of $150,000 for the year ($102,084 PEG; $47,916 INET)
3rd year and beyond - $.60 per month ($7.20 per year)
Revenue to City of $180,000 annually ($84,168 PEG; $95,832 INET)
SUPPORTS STRATEGIC PLAN GOAL:
Innovative Government
RECOMMENDED BY: Mike Carrington
ATTACHMENTS:
1. Comcast Franchise-Complete Agreements (PDF)
8
Packet Pg. 19
4843-3378-5210v.1 0101080-000007
The Honorable Dana Ralph Draft for Discussion Purposes Only
Mayor, City of Kent January___, 2019
Dear Mayor:
The purpose of this letter agreement is to set forth several commitments between Comcast Cable
Communications Management, LLC (“Comcast”) and the City of Kent, Washington (the “City”)
that are in addition to the renewal franchise agreement to be adopted by ordinance (hereinafter,
“the Franchise”). These items have been negotiated in good faith and agreed to as part of the
informal franchise renewal process pursuant to 47 U.S.C. § 546(h), and specifically relate to the
unique community needs that exist in the City.
Grant for Public, Education and Government Access
The prior franchise agreement between the City and Comcast did not include capital support for
Public, Education and Government (“PEG”) access. The City has requested immediate funding
for equipment and other capital needs to utilize the high definition PEG channel included in the
Franchise. Accordingly, Comcast agrees to provide a PEG capital equipment grant of one
hundred thousand ($100,000) dollars (“PEG Equipment Grant”) to the City within ninety (90)
days following the date on which the Franchise is adopted by ordinance. Comcast shall be
entitled to recover the PEG Equipment Grant in any manner that is consistent with applicable
law until it has fully recovered the PEG Equipment Grant, including recovery from the first year
of PEG funding under the Franchise in the amount of approximately $0.34 per subscriber per
month, retained by Comcast).
The terms and conditions of this letter agreement are binding upon the City and Comcast and
their successors and assigns. Comcast agrees that a violation of these terms by Comcast may be
considered by the City as a material violation of the Franchise, subject to the provisions of
Section 13 of the Franchise. It is understood that fulfillment of these obligations is also
necessary and part of the consideration to secure the renewed Franchise.
Sincerely,
Comcast Cable Communications Management, LLC
By: ______________________
Its: ______________________
Date: ____________________
Acknowledged and agreed to this ___ day of ___________, 2018.
City of Kent, Washington
By: _____________________
Its: _____________________
1899 Wynkoop Street
Suite 550
Denver, CO 80202
8.a
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4843-3378-5210v.1 0101080-000007
Date: ___________________
8.a
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Page i
City of Kent-Comcast
2019 Franchise Agreement
4846-1929-7154v.4 0101080-000007
COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC, AND
THE CITY OF KENT, WASHINGTON
____________________________________________
CABLE FRANCHISE AGREEMENT
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND EXHIBITS 1
(A) DEFINITIONS ......................................................................................................1
(B) EXHIBITS ............................................................................................................7
SECTION 2. GRANT OF FRANCHISE 7
2.1 Grant .....................................................................................................................7
2.2 Use of Rights-of-Way ...........................................................................................8
2.3 Effective Date and Term of Franchise ..................................................................9
2.4 Franchise Nonexclusive ........................................................................................9
2.5 Police Powers ........................................................................................................9
2.6 Competitive Equity ...............................................................................................9
2.7 Familiarity with Franchise ..................................................................................11
2.8 Effect of Acceptance ...........................................................................................12
SECTION 3. FRANCHISE FEE PAYMENT AND FINANCIAL CONTROLS 12
3.1 Franchise Fee ......................................................................................................12
3.2 Payments .............................................................................................................12
3.3 Acceptance of Payment and Recomputation ......................................................12
3.4 Quarterly Franchise Fee Reports ........................................................................12
3.5 Annual Franchise Fee Reports ............................................................................12
3.6 Audits ..................................................................................................................13
3.7 Late Payments .....................................................................................................13
3.8 Underpayments and Overpayments ....................................................................13
3.9 Alternative Compensation ..................................................................................14
3.10 Maximum Legal Compensation ..........................................................................14
3.11 Additional Commitments Not Franchise Fee Payments .....................................14
3.12 Tax Liability........................................................................................................15
3.13 Financial Records ................................................................................................15
3.14 Payment on Termination .....................................................................................15
SECTION 4. ADMINISTRATION AND REGULATION 15
4.1 Authority .............................................................................................................15
4.2 Rates and Charges ...............................................................................................16
4.3 Rate Discrimination ............................................................................................16
4.4 Filing of Rates and Charges ................................................................................16
8.a
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Page ii
City of Kent-Comcast
2019 Franchise Agreement
4846-1929-7154v.4 0101080-000007
4.5 Cross Subsidization .............................................................................................16
4.6 Reserved Authority .............................................................................................17
4.7 Time Limits Strictly Construed ..........................................................................17
4.8 Franchise Amendment Procedure .......................................................................17
4.9 Late Fees .............................................................................................................17
4.10 Force Majeure .....................................................................................................18
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS 18
5.1 Indemnification ...................................................................................................18
5.2 Insurance .............................................................................................................19
5.3 Deductibles/Certificate of Insurance ...................................................................20
5.4 Security ...............................................................................................................21
SECTION 6. CUSTOMER SERVICE 22
6.1 Customer Service Standards ...............................................................................22
6.2 Subscriber Privacy ..............................................................................................22
6.3 Subscriber Contracts ...........................................................................................22
6.4 Notice to the City ................................................................................................22
6.5 Identification of Local Franchise Authority on Subscriber Bills ........................22
SECTION 7. REPORTS AND RECORDS 23
7.1 Open Records ......................................................................................................23
7.2 Confidentiality ....................................................................................................23
SECTION 8. PROGRAMMING 24
8.1 Broad Programming Categories ..........................................................................24
8.2 Deletion or Reduction of Broad Programming Categories .................................25
8.3 Obscenity ............................................................................................................25
8.4 Parental Control Device ......................................................................................25
8.5 Continuity of Service Mandatory........................................................................25
8.6 Services for the Disabled ....................................................................................26
SECTION 9. ACCESS 26
9.1 Designated Access Providers ..............................................................................26
9.2 Channel Capacity and Use ..................................................................................26
9.3 Access Channel Assignments .............................................................................29
9.4 Relocation of Access Channels ...........................................................................29
9.5 Support for PEG Access and Network Costs ......................................................29
9.6 Access Support Not Franchise Fees ....................................................................30
9.7 Access Channels on Basic Service or Lowest Priced HD Service Tier ..............30
9.8 Change in Technology ........................................................................................30
9.9 Technical Quality ................................................................................................31
9.10 Return Lines/Access Origination ........................................................................31
8.a
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Page iii
City of Kent-Comcast
2019 Franchise Agreement
4846-1929-7154v.4 0101080-000007
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION 32
10.1 Right to Construct ...............................................................................................32
10.2 Right-of-Way Meetings ......................................................................................32
10.3 Joint Trenching/Boring Meetings .......................................................................32
10.4 General Standard .................................................................................................32
10.5 Permits Required for Construction .....................................................................32
10.6 Emergency Permits .............................................................................................33
10.7 Compliance with Applicable Codes ....................................................................33
10.8 Minimal Interference ..........................................................................................33
10.9 Prevent Injury/Safety ..........................................................................................34
10.10 Hazardous Substances .........................................................................................34
10.11 Locates ................................................................................................................34
10.12 Notice to Private Property Owners .....................................................................35
10.13 Underground Construction and Use of Poles ......................................................35
10.14 Undergrounding of Multiple Dwelling Unit Drops ............................................36
10.15 Burial Standards ..................................................................................................36
10.16 Cable Drop Bonding ...........................................................................................37
10.17 Prewiring .............................................................................................................37
10.18 Repair and Restoration of Property .....................................................................37
10.19 Acquisition of Facilities ......................................................................................37
10.20 Discontinuing Use/Abandonment of Cable System Facilities ............................38
10.21 Survey, Locates and Movement of Cable System Facilities for City
Purposes ..............................................................................................................38
10.22 Reimbursement of Grantee Costs .......................................................................39
10.23 Movement of Cable System Facilities for Other Franchise Holders ..................39
10.24 Temporary Changes for Other Permittees ..........................................................39
10.25 Reservation of City Use of Right-of-Way ..........................................................39
10.26 Tree Trimming ....................................................................................................40
10.27 Inspection of Construction and Facilities ...........................................................40
10.28 Stop Work ...........................................................................................................40
10.29 Work of Contractors and Subcontractors ............................................................41
SECTION 11. CABLE SYSTEM, TECHNICAL STANDARDS AND TESTING 41
11.1 Subscriber Network ............................................................................................41
11.2 Standby Power ....................................................................................................42
11.3 Emergency Alert Capability ...............................................................................42
11.4 Technical Performance .......................................................................................42
11.5 Cable System Performance Testing ....................................................................42
11.6 Additional Tests ..................................................................................................43
SECTION 12. SERVICE AVAILABILITY, INTERCONNECTION AND
SERVICE TO SCHOOLS AND PUBLIC BUILDINGS 43
12.1 Service Availability ............................................................................................43
8.a
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Page iv
City of Kent-Comcast
2019 Franchise Agreement
4846-1929-7154v.4 0101080-000007
12.2 Institutional Network and Connection of Public Facilities .................................44
SECTION 13. FRANCHISE VIOLATIONS 45
13.1 Procedure for Remedying Franchise Violations .................................................45
13.2 Revocation ..........................................................................................................46
13.3 Procedures in the Event of Termination or Revocation ......................................48
13.4 Purchase of Cable System ...................................................................................48
13.5 Receivership and Foreclosure .............................................................................49
13.6 No Monetary Recourse Against the City ............................................................50
13.7 Alternative Remedies ..........................................................................................50
13.8 Assessment of Monetary Damages .....................................................................50
13.9 Effect of Abandonment .......................................................................................50
13.10 What Constitutes Abandonment .........................................................................51
SECTION 14. FRANCHISE RENEWAL AND TRANSFER 51
14.1 Renewal...............................................................................................................51
14.2 Transfer of Ownership or Control.......................................................................52
SECTION 15. SEVERABILITY 53
SECTION 16. MISCELLANEOUS PROVISIONS 53
16.1 Preferential or Discriminatory Practices Prohibited ...........................................53
16.2 Notices ................................................................................................................54
16.3 Descriptive Headings ..........................................................................................54
16.4 Publication Costs to be Borne by Grantee ..........................................................54
16.5 Binding Effect .....................................................................................................55
16.6 No Joint Venture .................................................................................................55
16.7 Waiver .................................................................................................................55
16.8 Challenges to City Ordinances ............................................................................55
16.9 Reasonableness of Consent or Approval ............................................................55
16.10 Entire Agreement ................................................................................................55
16.11 Jurisdiction ..........................................................................................................55
8.a
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Page 1
City of Kent - Comcast
2019 Franchise Agreement
4846-1929-7154v.4 0101080-000007
COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC, AND
CITY OF KENT, WASHINGTON
_____________________________________________
CABLE FRANCHISE AGREEMENT
DEFINITIONS AND EXHIBITS SECTION 1.
(A) DEFINITIONS
For the purposes of this Franchise, the following terms, phrases, words and their
derivations shall have the meaning given herein. 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. Words not defined shall be given their common and ordinary
meaning. The word “shall” is always mandatory and not merely discretionary. A list that
follows the use of the word “including” is intended to illustrate examples, not an exhaustive list,
unless the context clearly indicates otherwise.
1.1 “Access” means the availability for noncommercial use by various agencies, institutions,
organizations, groups and individuals in the community, including the City and its designees, of
the Cable System to acquire, create, receive, and distribute video Cable Services and other
services and signals as permitted under Applicable Law including, but not limited to:
a. “Public Access” means Access where community-based, noncommercial
organizations, groups or individual members of the general public, on a
nondiscriminatory basis, are the primary users.
b. “Educational Access” means Access where schools are the primary users having
editorial control over programming and services. For purposes of this definition,
“school” means any State-accredited educational institution, public or private, including,
for example, primary and secondary schools, colleges and universities.
c. “Government Access” means Access where governmental institutions or their
designees are the primary users having editorial control over programming and services.
1.2 “Access Channel” means any Channel, or portion thereof, designated for Access
purposes or otherwise made available to facilitate or transmit Access programming or services.
1.3 “Activated” means the status of any capacity or part of the Cable System in which any
Cable Service requiring the use of that capacity or part is available without further installation of
system equipment, whether hardware or software.
1.4 “Affiliate,” when used in connection with Grantee, means any Person who directly or
indirectly owns or controls, is owned or controlled by, or is under common ownership or control
with Grantee.
8.a
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Page 2
City of Kent - Comcast
2019 Franchise Agreement
4846-1929-7154v.4 0101080-000007
1.5 “Applicable Law” means any statute, ordinance, judicial decision, executive order or
regulation having the force and effect of law that determines the legal standing of a case or issue.
1.6 “Bad Debt” means amounts lawfully billed to a Subscriber and owed by the Subscriber
for Cable Service and accrued as revenues on the books of Grantee but not collected after
reasonable efforts have been made by Grantee to collect the charges.
1.7 “Basic Service” is the level of programming service which includes the retransmission of
local television Broadcast Channels and is made available to all Cable Services Subscribers in
the Franchise Area.
1.8 “Broadcast Channel” means local commercial television stations, qualified low power
stations and qualified local noncommercial educational television stations, as referenced under
47 USC § 534 and 535.
1.9 “Broadcast Signal” means a television or radio signal transmitted over the air to a wide
geographic audience and received by a Cable System by antenna, microwave, satellite dishes or
any other means.
1.10 “Cable Act” means the Title VI of the Communications Act of 1934, as amended.
1.11 “Cable Operator” means any Person or groups of Persons, including Grantee, who
provide(s) Cable Service over a Cable System and directly or through one or more Affiliates
owns a significant interest in such Cable System or who otherwise control(s) or is (are)
responsible for, through any arrangement, the management and operation of such a Cable
System.
1.12 “Cable Service” means 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.
1.13 “Cable System” means any facility, including Grantee’s, 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 one or more television broadcast stations; (B) a
facility that serves Subscribers without using any Right-of-Way; (C) a facility of a common
carrier which is subject, in whole or in part, to the provisions of Title II of the federal
Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a
Cable System (other than for purposes of Section 621(c) (47 U.S.C. 541(c))) 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 federal statutes; or (E) any facilities of any electric utility used solely for
operating its electric utility systems.
8.a
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Page 3
City of Kent - Comcast
2019 Franchise Agreement
4846-1929-7154v.4 0101080-000007
1.14 “Channel” means a portion of the electromagnetic frequency spectrum which is used in
the Cable System and which is capable of delivering a television Channel (as television Channel
is defined by the FCC by regulation).
1.15 “Chief Administrative Officer” means the Chief Administrative Officer of the City or
designee.
1.16 “City” is the City of Kent, Washington, a body politic and corporate under the laws of the
State of Washington.
1.17 “City Council” means the Kent City Council, or its successor, the governing body of the
City of Kent, Washington.
1.18 “Commercial Subscribers” means any Subscribers other than Residential Subscribers.
1.19 “Designated Access Provider” means the entity or entities designated now or in the future
by the City to manage or co-manage Access Channels and facilities. The City may be a
Designated Access Provider.
1.20 “Digital Starter Service” means the Tier of optional video programming services, which
is the level of Cable Service received by most Subscribers above Basic Service, and does not
include Premium Services.
1.21 “Downstream” means carrying a transmission from the Headend to remote points on the
Cable System or to Interconnection points on the Cable System.
1.22 “Dwelling Unit” means any building, or portion thereof, that has independent living
facilities, including provisions for cooking, sanitation, and sleeping, and that is designed for
residential occupancy. Buildings with more than one set of facilities for cooking shall be
considered Multiple Dwelling Units unless the additional facilities are clearly accessory.
1.23 “FCC” means the Federal Communications Commission.
1.24 “Fiber Optic” means a transmission medium of optical fiber cable, along with all
associated electronics and equipment, capable of carrying Cable Service by means of electric
lightwave impulses.
1.25 “Finance Director” means the director of the City’s Finance Department or designee.
1.26 “Franchise” means the document in which this definition appears, i.e., the contractual
agreement, executed between the City and Grantee, containing the specific provisions of the
authorization granted, including references, specifications requirements, and other related
matters.
1.27 “Franchise Area” means the area within the jurisdictional boundaries of the City,
including any areas annexed by the City during the term of this Franchise.
8.a
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Page 4
City of Kent - Comcast
2019 Franchise Agreement
4846-1929-7154v.4 0101080-000007
1.28 “Franchise Fee” means that fee payable to the City described in Section 3.1 (A).
1.29 “Grantee” means Comcast Cable Communications Management, LLC, or its lawful
successor, transferee or assignee.
1.30 “Gross Revenues” means and shall be construed broadly to include all revenues derived
directly or indirectly by Grantee and/or an Affiliate entity that is the cable operator of the Cable
System, from the operation of Grantee’s Cable System to provide Cable Services within the City.
Gross revenues include, by way of illustration and not limitation:
• monthly fees for Cable Services, regardless of whether such Cable Services are
provided to Residential or Commercial Subscribers, including revenues derived
from the provision of all Cable Services (including but not limited to pay or
premium Cable Services, digital Cable Services, pay-per-view, pay-per-event, and
video-on-demand Cable Services);
• installation, reconnection, downgrade, upgrade, or similar charges associated with
changes in subscriber Cable Service levels;
• fees paid to Grantee for channels designated for commercial/leased access use,
which shall be allocated on a pro rata basis using total Cable Service Subscribers
within the City;
• converter, remote control, and other Cable Service equipment rentals, leases, or
sales;
• Advertising Revenues as defined herein;
• late fees, convenience fees, and administrative fees, which shall be allocated on a
pro rata basis using Cable Services revenue as a percentage of total Subscriber
revenues within the City;
• revenues from program guides;
• Franchise Fees;
• FCC Regulatory Fees;
• Except as provided in subsection (B) below, any fee, tax, or other charge assessed
against Grantee by a municipality, which Grantee chooses to pass through and
collect from its Subscribers; and
• commissions from home shopping Channels and other Cable Service revenue
sharing arrangements, which shall be allocated on a pro rata basis using total
Cable Service Subscribers within the City.
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2019 Franchise Agreement
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(A) “Advertising Revenues” shall mean revenues derived from sales of advertising
that are made available to Grantee’s Cable System Subscribers within the City and shall be
allocated on a pro rata basis using total Cable Service Subscribers reached by the advertising.
Additionally, Grantee agrees that Gross Revenues subject to Franchise Fees shall include all
commissions, representative fees, Affiliate entity fees, or rebates paid to National Cable
Communications and Comcast Spotlight or their successors associated with sales of advertising
on the Cable System within the City and allocated according to this subsection using total Cable
Service Subscribers reached by the advertising.
(B) “Gross Revenues” shall not include:
• actual Bad Debt write-offs, except any portion which is subsequently
collected which shall be allocated on a pro rata basis using Cable Services
revenue as a percentage of total Subscriber revenues within the City;
• Public, Educational and Governmental (PEG) Fees; and
• unaffiliated third-party advertising sales agency fees which are reflected as
a deduction from revenues.
(C) To the extent revenues are received by Grantee for the provision of a discounted
bundle of services which includes Cable Services and non-Cable Services, Grantee shall
calculate revenues to be included in Gross Revenues using a methodology that allocates revenue
on a pro rata basis when comparing the bundled service price and its components to the sum of
the published rate card, except as required by specific federal, State or local law. It is expressly
understood that equipment may be subject to inclusion in the bundled price at full rate card
value. This calculation shall be applied to every bundled service package containing Cable
Service from which Grantee derives revenues in the City. The City reserves its right to review
and to challenge Grantee’s calculations.
(D) Grantee reserves the right to change the allocation methodologies set forth in this
subsection 1.30 in order to meet the standards required by governing accounting principles as
promulgated and defined by the Financial Accounting Standards Board (“FASB”), Emerging
Issues Task Force (“EITF”) and/or the U.S. Securities and Exchange Commission (“SEC”).
Grantee will explain and document the required changes to the City within three (3) months of
making such changes, and as part of any audit or review of Franchise Fee payments, and any
such changes shall be subject to subsection 1.30 (E) below. If new Cable Service revenue
streams develop from Grantee’s operation of its Cable System within the City, those new
revenue streams shall be included within Gross Revenues, unless the parties agree otherwise.
(E) Resolution of any disputes over the classification of revenue should first be
attempted by agreement of the Parties, but should no resolution be reached, the Parties agree that
reference shall be made to generally accepted accounting principles (“GAAP”) as promulgated
and defined by the FASB, EITF and/or the SEC. Notwithstanding the forgoing, the City reserves
8.a
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2019 Franchise Agreement
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its right to challenge Grantee’s calculation of Gross Revenues, including the interpretation of
GAAP as promulgated and defined by the FASB, EITF and/or the SEC.
1.31 “Headend” means any facility for signal reception and dissemination on a Cable System,
including cables, antennas, wires, satellite dishes, monitors, switchers, modulators, processors
for Broadcast Signals, equipment for the Interconnection of the Cable System with adjacent
Cable Systems and Interconnection of any networks which are part of the Cable System, and all
other related equipment and facilities.
1.32 “Leased Access Channel” means any Channel or portion of a Channel commercially
available for video programming by Persons other than Grantee, for a fee or charge.
1.33 “Municipal Code” means the Kent City Code adopted for application and enforcement
within the City of Kent, Washington.
1.34 “Person” means any individual, sole proprietorship, partnership, association, or
corporation, or any other form of entity or organization.
1.35 “Premium Service” means programming choices (such as movie Channels, pay-per-view
programs, or video on demand) offered to Subscribers on a per-Channel, per-program or per-
event basis.
1.36 “Residential Subscriber” means any Subscriber who receives Cable Service delivered to
Dwelling Units or Multiple Dwelling Units, excluding such Multiple Dwelling Units billed on a
bulk-billing basis.
1.37 “Right-of-Way” means “City Right-of-Way” as defined in Section 7.12.030(L) of the
Municipal Code.
1.38 “State” means the State of Washington.
1.39 “Subscriber” means any Person who or which has entered into an agreement to receive
Cable Service provided by Grantee by means of or in connection with the Cable System and
whose premises are physically wired and lawfully Activated to receive Cable Service from
Grantee’s Cable System, and who or which has not been disconnected for failure to adhere to
Grantee’s regular and nondiscriminatory terms and conditions for receipt of service.
1.40 “Subscriber Network” means that portion of the Cable System used primarily by Grantee
in the transmission of Cable Services to Residential Subscribers.
1.41 “Telecommunications” means the transmission between or among points specified by the
user of information of the user’s choosing, without change in the form or content of the
information as sent and received (as provided in 47 U.S.C. Section 153(50)).
8.a
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1.42 “Telecommunications Service” means the offering of Telecommunications for a fee
directly to the public, or to such classes of users as to be effectively available directly to the
public, regardless of the facilities used (as provided in 47 U.S.C. Section 153(53)).
1.43 “Tier” means a group of Channels for which a single periodic subscription fee is charged.
1.44 “Upstream” means carrying a transmission to the Headend from remote points on the
Cable System or from Interconnection points on the Cable System.
(B) EXHIBITS
The following documents, which are occasionally referred to in this Franchise, are
formally incorporated and made a part of this Franchise by this reference:
1) Exhibit A: A list of the public buildings receiving dark fiber I-Net connections
2) Exhibit B: A list of the current public buildings receiving complimentary Cable
Service
GRANT OF FRANCHISE SECTION 2.
2.1 Grant
(A) The City hereby grants to Grantee a nonexclusive authorization to make
reasonable and lawful use of the Rights-of-Way and any compatible easements, to the extent
they comply with the provisions of 47 U.S.C. § 541(a)(2), within the City to construct, operate,
maintain, reconstruct, and rebuild a Cable System for the purpose of providing Cable Service
subject to the terms and conditions set forth in this Franchise and in any prior utility or use
agreements entered into by Grantee with regard to any individual property. This Franchise shall
constitute both a right and an obligation to provide the Cable Services required by, and to fulfill
the obligations set forth in, the provisions of this Franchise.
(B) Nothing in this Franchise shall be deemed to waive the lawful requirements of
any generally applicable City ordinance existing as of the Effective Date, as defined in
subsection 2.3.
(C) Each and every term, provision, or condition herein is subject to the provisions of
State law, federal law, and the ordinances and regulations enacted by the Kent City Council
pursuant thereto, portions of which may be codified in the Municipal Code. To the extent there
is any conflict between any provision of the Municipal Code as it exists on the Effective Date of
this Franchise and this Franchise, the terms of this Franchise shall control. Subject to the City’s
right to exercise its police power under Section 2.5, the City may not unilaterally alter the
material rights and obligations of Grantee under this Franchise.
(D) This Franchise shall not be interpreted to prevent the City from imposing
additional lawful conditions for use of the Rights-of-Way as allowed by Applicable Law should
8.a
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Grantee provide service other than Cable Service, nor shall this Franchise be interpreted to either
prevent or authorize Grantee from making any other lawful uses of the Cable System as
permitted by Applicable Law.
(E) Grantee promises and guarantees, as a condition of exercising the privileges
granted by this Franchise, that any Affiliate of Grantee directly involved in the offering of Cable
Service in the Franchise Area, or directly involved in the management or operation of the Cable
System in the Franchise Area, will also comply with the obligations of this Franchise.
(F) No rights shall pass to Grantee by implication. Without limiting the foregoing, by
way of example and not limitation, this Franchise shall not include or be a substitute for:
(1) Any other generally applicable permit or authorization required for the
privilege of transacting and carrying on a business within the City that may be required
by the ordinances and laws of the City;
(2) Any generally applicable permit, agreement, or authorization required by
the City for Right-of-Way users in connection with operations on or in the Rights-of-Way
or public property including, by way of example and not limitation, street cut permits; or
(3) Any generally applicable permits or agreements for occupying any other
property of the City or private entities to which access is not specifically granted by this
Franchise including, without limitation, permits and agreements for placing devices on
poles, in conduits, or in or on other structures.
(G) This Franchise is intended to convey limited rights and interests only as to those
Rights-of-Way in which the City has an actual interest. It is not a warranty of title or interest in
any Right-of-Way; it does not provide Grantee with any interest in any particular location within
the Right-of-Way; and it does not confer rights other than as expressly provided in the grant
hereof.
2.2 Use of Rights-of-Way
(A) Subject to the City’s supervision and control, Grantee may erect, install,
construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the
Rights-of-Way within the City such wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, pedestals, attachments and other property and equipment as are necessary and
appurtenant to the operation of a Cable System within the City. Grantee, through this Franchise,
is granted extensive and valuable rights to operate its Cable System for profit using the City’s
Rights-of-Way in compliance with all applicable City construction codes and procedures. As
trustee for the public, the City is entitled to fair compensation as provided for in Section 3 of this
Franchise to be paid for these valuable rights throughout the term of the Franchise.
(B) Grantee must follow City established nondiscriminatory requirements for
placement of Cable System facilities in Rights-of-Way, including the specific location of
facilities in the Rights-of-Way, and must in any event install Cable System facilities in a manner
8.a
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that minimizes interference with the use of the Rights-of-Way by the City or others, including
others that may be installing communications facilities. Within limits reasonably related to the
City’s role in protecting public health, safety, and welfare, the City may require that Cable
System facilities be installed at a particular time, at a specific place, or in a particular manner as
a condition of access to a particular Right-of-Way; may deny access if Grantee is not willing to
comply with City’s requirements; and may remove, or require removal of any facility that is not
installed by Grantee 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, and charge
Grantee for all the costs associated with removal; and may require Grantee to cooperate with
others to minimize adverse impacts on the Rights-of-Way through joint trenching and other
arrangements.
2.3 Effective Date and Term of Franchise
This Franchise and the rights, privileges, and authority granted hereunder shall take effect
on _____________, 2019 (the “Effective Date”), and shall terminate on _______________,
2029, unless terminated sooner as hereinafter provided.
2.4 Franchise Nonexclusive
This Franchise shall be nonexclusive and subject to all prior rights, interests, easements,
or licenses granted by the City to any Person to use any property, Right-of-Way, right, interest,
or license for any purpose whatsoever, including the right of the City to use the same for any
purpose it deems fit, including the same or similar purposes allowed Grantee hereunder. The
City may at any time grant authorization to use the Rights-of-Way for any purpose not
incompatible with Grantee’s authority under this Franchise and for such additional franchises for
Cable Systems as the City deems appropriate, subject to Section 2.6.
2.5 Police Powers
Grantee’s rights hereunder are subject to the police powers of the City to adopt and
enforce ordinances necessary to the safety, health, and welfare of the public, and Grantee agrees
to comply with all laws and ordinances of general applicability enacted or hereafter enacted by
the City or any other legally constituted governmental unit having lawful jurisdiction over the
subject matter hereof. The City shall have the right to adopt from time to time such ordinances
as it may deem necessary in the exercise of its police power; provided that such hereinafter
enacted ordinances shall be reasonable and not materially modify the terms of this Franchise.
Any conflict between the provisions of this Franchise and any other present or future lawful
exercise of the City’s police powers shall be resolved in favor of the latter.
2.6 Competitive Equity
(A) Grantee acknowledges and agrees that the City reserves the right to grant one (1)
or more additional franchises or other similar lawful authorization to utilize the Rights-of-Way in
order to provide Cable Services or similar video programming service within the City. If the
8.a
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City grants such an additional franchise or other similar lawful authorization to utilize the
Rights-of-Way for Cable Services or similar video programming services containing material
terms and conditions that differ from Grantee’s material obligations under this Franchise, or
declines to require such franchise or other similar lawful authorization where it has the legal
authority to do so, then the City agrees that the obligations in this Franchise will, pursuant to the
process set forth in this Section, be amended to include any material terms or conditions that are
imposed upon the new entrant, or provide relief from existing material terms or conditions, so as
to insure that the regulatory and financial burdens on each entity are materially equivalent.
“Material terms and conditions” include, but are not limited to: Franchise Fees and Gross
Revenues; complementary services; insurance; System build-out requirements; security
instruments; Public, Education and Government Access Channels and support; customer service
standards; required reports and related record keeping; competitive equity (or its equivalent);
audits; dispute resolution; remedies; and notice and opportunity to cure breaches. The parties
agree that this provision shall not require a word for word identical franchise or authorization for
a competitive entity so long as the regulatory and financial burdens on each entity are materially
equivalent. Prior to formal consideration of a competitive franchise to provide Cable Services or
similar video programming service, the City shall provide notice to Grantee, consistent with
Section 7.12.170 of the Kent Municipal Code.
(B) The modification process of this Franchise as provided for in subsection 2.6 (A)
shall only be initiated by written notice by Grantee to the City regarding specified franchise
obligations. Grantee’s notice shall address the following: (1) identifying the specific terms or
conditions in the competitive cable services franchise that are materially different from Grantee’s
obligations under this Franchise; (2) identifying the Franchise terms and conditions for which
Grantee is seeking amendments; (3) providing text for any proposed Franchise amendments to
the City, with a written explanation of why the proposed amendments are necessary and
consistent. Notwithstanding any modification of this Franchise pursuant to the provisions of this
subsection 2.6, should any entity, whose authorization to provide Cable Services or similar video
programming service resulted in a triggering of the amendments under this Section, cease to
provide such services within the City, the City may provide ninety (90) days’ written notice to
Grantee of such fact, and the City and Grantee shall enter into good faith negotiations to
determine which of the original terms, conditions and obligations of this Franchise shall be
reinstated and fully effective.
(C) Upon receipt of Grantee’s written notice as provided in subsection 2.6 (B), the
City and Grantee agree that they will use best efforts in good faith to negotiate Grantee’s
proposed Franchise modifications, and that such negotiation will proceed and conclude within a
ninety (90) day time period, unless that time period is reduced or extended by mutual agreement
of the parties. If the City and Grantee reach agreement on the Franchise modifications pursuant
to such negotiations, then the City shall amend this Franchise to include the modifications.
(D) In the alternative to Franchise modification negotiations as provided for in
subsection 2.6 (C), or if the City and Grantee fail to reach agreement in such negotiations,
Grantee may, at its option, elect to replace this Franchise by opting into the franchise or other
similar lawful authorization that the City grants to another multi-channel video programming
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provider, with the understanding that Grantee may use its current system design and technology
infrastructure to meet any requirements of the new franchise, so as to insure that the regulatory
and financial burdens on each entity are equivalent. If Grantee so elects, the City shall
immediately commence proceedings to replace this Franchise with the franchise issued to the
other multi-channel video programming provider.
(E) Notwithstanding anything contained in this subsection 2.6(A) through (D) to the
contrary, the City shall not be obligated to amend or replace this Franchise unless the new
entrant makes Cable Services or similar video programming services available for purchase by
Subscribers or customers under its franchise agreement with the City. If Grantee is the sole
provider of Cable Services or similar video programming services using the Rights-of-Way of
the City, the terms and conditions of the Franchise shall apply.
(F) Notwithstanding any provision to the contrary, at any time that a wireline
facilities based entity, legally authorized by State or federal law, makes available for purchase by
Subscribers or customers Cable Services or multiple Channels of video programming within the
Franchise Area without a franchise or other similar lawful authorization granted by the City that
permits a new entrant to utilize the Rights-of-Way granted by the City, then:
(1) Grantee may negotiate with the City to seek Franchise modifications as
per subsection 2.6(C) above; or
(a) the term of Grantee’s Franchise shall, upon ninety (90) days’
written notice from Grantee, be shortened so that the Franchise
shall be deemed to expire on a date eighteen (18) months from the
first day of the month following the date of Grantee’s notice, and
Grantee shall be deemed to have timely invoked the renewal
process under 47 USC 546; or,
(b) Grantee may assert, at Grantee’s option, that this Franchise is
rendered “commercially impracticable” and invoke the
modification procedures set forth in Section 625 of the Cable Act.
For the purposes of this section, a “wireline facilities based entity” means an entity,
including the City that owns, controls or manages a significant portion of the wireline facilities
located in the City’s Rights-of-Way, over which the video programming services are delivered.
2.7 Familiarity with Franchise
Grantee acknowledges and warrants by acceptance of the rights, privileges, and
agreements granted herein, that it has carefully read and fully comprehends the terms and
conditions of this Franchise and is willing to and does accept all lawful and reasonable risks of
the meaning of the provisions, terms, and conditions herein. Grantee further acknowledges and
states that it has fully studied and considered the requirements and provisions of this Franchise,
8.a
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and finds that the same are commercially practicable at this time and consistent with all local,
State, and federal laws and regulations currently in effect, including the Cable Act.
2.8 Effect of Acceptance
By accepting the Franchise, Grantee: (1) acknowledges and accepts the City’s legal right
to issue and enforce the Franchise; (2) accepts and agrees to comply with each and every
provision of this Franchise subject to Applicable Law; and (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.
FRANCHISE FEE PAYMENT AND FINANCIAL CONTROLS SECTION 3.
3.1 Franchise Fee
As compensation for the benefits and privileges granted under this Franchise and in
consideration of permission to use the City’s Rights-of-Way, Grantee shall continue to pay as a
Franchise Fee to the City, throughout the duration of and consistent with this Franchise, an
amount equal to five percent (5%) of Grantee’s Gross Revenues.
3.2 Payments
Grantee’s Franchise Fee payments to the City shall be computed quarterly for the
preceding calendar quarter ending March 31, June 30, September 30, and December 31. Each
quarterly payment shall be due and payable no later than thirty (30) days after said dates.
3.3 Acceptance of Payment and Recomputation
No acceptance of any payment shall be construed as an accord by the City that the
amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as
a release of any claim the City may have for further or additional sums payable or for the
performance of any other obligation of Grantee.
3.4 Quarterly Franchise Fee Reports
Each payment shall be accompanied by a written report to the City concurrently sent
under separate cover, verified by an authorized representative of Grantee, containing an accurate
statement in summarized form, as well as in detail, of Grantee’s Gross Revenues and the
computation of the payment amount. Such reports shall detail all Gross Revenues of the Cable
System.
3.5 Annual Franchise Fee Reports
Grantee shall, within sixty (60) days after the end of each year, furnish to the City a statement
stating the total amount of Gross Revenues for the year and all payments, deductions, and
computations for the period.
8.a
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3.6 Audits
Not more than once every three (3) years, upon thirty (30) days’ prior written notice, the
City, including the City’s Finance Director, shall have the right to conduct an independent
audit/review of Grantee’s records reasonably related to the administration or enforcement of this
Franchise. Pursuant to subsection 1.30, as part of the Franchise Fee audit/review, the City shall
specifically have the right to review relevant data related to the allocation of revenue to Cable
Services in the event Grantee offers Cable Services bundled with non-Cable Services. An
independent audit/review of Grantee’s records may be conducted more frequently if the City has
a reasonable basis upon which to believe an error in the Franchise Fee calculation has occurred.
For purposes of this section, “relevant data” shall include, at a minimum, Grantee’s records,
produced and maintained in the ordinary course of business, showing the Subscriber counts per
package and the revenue allocation per package for each package that was available for City
Subscribers during the audit period. To the extent that the City does not believe that the relevant
data supplied is sufficient for the City to complete its audit/review, the City may require other
relevant data maintained in Grantee’s ordinary course of business. For purposes of this Section
3.6, the “other relevant data” shall generally mean all: (1) billing reports, (2) financial reports
(such as General Ledgers) and (3) sample Subscriber bills used by Grantee to determine Gross
Revenues for the Franchise Area that would allow the City to recompute the Gross Revenue
determination. If the audit/review shows that Franchise Fee payments have been underpaid by
five percent (5%) or more (or such other contract underpayment threshold as set forth in a
generally applicable and enforceable regulation or policy of the City related to audits), Grantee
shall pay the total cost of the audit/review, such cost not to exceed five thousand dollars ($5,000)
for each year of the audit period, with such amount to increase upon the annual anniversary of
the Effective Date, by an amount equal to the CPI increase in the Seattle-Tacoma-Bellevue area.
The City’s right to audit/review and Grantee’s obligation to retain records necessary to complete
any audit under this subsection shall expire consistent with the applicable statute of limitations
period under State law; provided, however, that this would not apply to a time period covered
under a previous audit.
3.7 Late Payments
In the event any quarterly Franchise Fee payment is not received within thirty (30) days
from the date the payment was due to the City, Grantee shall pay interest on the amount due of
one and one-half percent (1.5 %) per month (eighteen percent (18%) per annum) on any unpaid
balance of the Franchise Fee due, until all payments due are paid in full. Any unpaid fee or
interest due under this Franchise that remains unpaid shall constitute a debt to the City,
collectible in accordance with the Kent City Code.
3.8 Underpayments and Overpayments
If a net Franchise Fee underpayment is discovered as the result of an audit, Grantee shall
pay interest as applicable for late payments under Section 3.7 of this Franchise, calculated from
the date each portion of the underpayment was originally due until the date Grantee remits the
8.a
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underpayment to the City. If an overpayment is discovered, Grantee may take an offset against
future Franchise Fee payments, with no interest or other cost to the City.
3.9 Alternative Compensation
In the event the obligation of Grantee to compensate the City through Franchise Fee
payments is lawfully suspended or eliminated, in whole or part, then Grantee shall pay to the
City compensation equivalent to the compensation paid to the City by other similarly situated
users of the City’s Rights-of-Way for Grantee’s use of the City’s Rights-of-Way, provided that
in no event shall such payments exceed the equivalent of five percent (5%) of Grantee’s Gross
Revenues (subject to the other provisions contained in this Franchise), to the extent consistent
with Applicable Law.
3.10 Maximum Legal Compensation
The parties acknowledge that, at present, applicable federal law limits the City to
collection of a maximum permissible Franchise Fee of five percent (5%) of Gross Revenues. In
the event that at any time during the duration of this Franchise the City is authorized to collect an
amount in excess of five percent (5%) of Gross Revenues, then this Franchise may be amended
unilaterally by the City, by resolution of the City Council, to provide that such excess amount
shall be added to the Franchise Fee payments to be paid by Grantee to the City hereunder,
provided that Grantee has received at least ninety (90) days’ prior written notice from the City of
such amendment, so long as all cable operators in the City are paying the same Franchise Fee
amount commencing within ninety (90) days of the Effective Date of the increase for Grantee.
3.11 Additional Commitments Not Franchise Fee Payments
No term or condition in this Franchise shall in any way modify or affect Grantee’s
obligation to pay in full the Franchise Fee percentage listed in this Franchise. Additionally, the
PEG Contribution pursuant to Section 9.5, as well as any charges incidental to the awarding or
enforcing of this Franchise, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties or liquidated damage shall not be offset against Franchise
Fees. Furthermore, the City and Grantee agree that any utility tax, business and occupation tax
or similar local tax of general applicability shall be in addition to any Franchise Fees required
herein, and there shall be no offset against Franchise Fees subject to applicable law. With the
exception of the foregoing and Section 12.2 of this Franchise, Comcast reserves all rights to
offset cash or non-cash payments from Franchise Fees, consistent with applicable law.
Should Grantee elect to offset commitments or initiatives such as complimentary Cable
Service against the Franchise Fee in accordance with applicable law, including any Order
resulting from the FCC’s 621 proceeding, MB Docket No. 05-311, Grantee shall provide the
City ninety (90) days’ advance written notice. Discounted leased fiber or managed services
provided under a separate contract with Comcast Business are not a non-cash commitment or
initiative and shall not be offset.
8.a
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Any decision or election by Grantee not to exercise any right it has under applicable law,
including any Order by the FCC in the 621 proceeding, to offset cash or non-cash payments from
Franchise Fees under or pursuant to this Franchise, shall not constitute a waiver of any such
rights Grantee may have under applicable law.
3.12 Tax Liability
The Franchise Fees shall be in addition to any and all taxes or other levies or assessments
which are now or hereafter required to be paid by businesses in general by any law of the City,
the State or the United States including, without limitation, sales, use, utility, business and
occupation, and other taxes, business license fees, or other payments. Payment of the Franchise
Fees under this Franchise shall not exempt Grantee from the payment of any other license fee,
permit fee, tax, or charge on the business, occupation, property, or income of Grantee that may
be lawfully imposed by the City. Any other license fees, taxes, or charges shall be of general
applicability in nature and shall not be levied against Grantee solely because of its status as a
Cable Operator, or against Subscribers, solely because of their status as such.
3.13 Financial Records
Grantee agrees to meet with a representative of the City upon request to review Grantee’s
methodology of recordkeeping, financial reporting, the computing of Franchise Fee obligations
and other procedures, the understanding of which the City deems necessary for reviewing reports
and records.
3.14 Payment on Termination
If this Franchise terminates for any reason, Grantee shall file with the City within ninety
(90) calendar days of the date of the termination, a financial statement, signed by a representative
of Grantee under penalty of perjury under the laws of the State of Washington, showing the
Gross Revenues received by Grantee since the end of the previous fiscal year. The City reserves
the right to satisfy any remaining financial obligations of Grantee to the City by utilizing the
funds available in the letter of credit or other security provided by Grantee.
ADMINISTRATION AND REGULATION SECTION 4.
4.1 Authority
(A) The City shall be vested with the power and right to reasonably regulate the
exercise of the privileges permitted by this Franchise in the public interest or to delegate that
power and right, or any part thereof, to the extent permitted under federal, State, and local law, to
any agent in its sole discretion.
(B) Nothing in this Franchise shall limit nor expand the City’s right of eminent
domain under State law.
8.a
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4.2 Rates and Charges
All of Grantee’s rates and charges related to or regarding Cable Services shall be subject
to regulation by the City to the full extent authorized by applicable federal, State, and local laws.
4.3 Rate Discrimination
All of Grantee’s rates and charges shall be published (in the form of a publicly-available
rate card) and be non-discriminatory as to all Persons and organizations of similar classes, under
similar circumstances and conditions. Grantee shall apply its rates in accordance with
Applicable Law, with identical rates and charges for all Subscribers receiving identical Cable
Services, without regard to race, color, ethnic or national origin, religion, age, sex, sexual
orientation, gender identity, marital, military or economic status, physical or mental disability,
or, where consistent with any requirement of federal or State law, or geographic location within
the City. Nothing herein shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction with valid
promotional campaigns; or,
(B) The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens; or,
(C) The offering of rate discounts for Cable Service; or,
(D) The establishing of different and nondiscriminatory rates and charges and classes
of service for Commercial Subscribers, as allowable by federal law and regulations.
4.4 Filing of Rates and Charges
(A) Throughout the term of this Franchise, Grantee shall maintain on file with the
City a complete schedule of applicable rates and charges for Cable Services provided under this
Franchise. Nothing in this subsection shall be construed to require Grantee to file rates and
charges under temporary reductions or waivers of rates and charges in conjunction with
promotional campaigns.
(B) Upon request of the City, Grantee shall provide a complete schedule of current
rates and charges for any and all Leased Access Channels, or portions of such Channels,
provided by Grantee. The schedule shall include a description of the price, terms, and conditions
established by Grantee for Leased Access Channels.
4.5 Cross Subsidization
Grantee shall comply with all Applicable Laws regarding rates for Cable Services and all
Applicable Laws covering issues of cross subsidization.
8.a
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4.6 Reserved Authority
Both Grantee and the City reserve all rights they may have under the Cable Act and any
other relevant provisions of federal, State, or local law.
4.7 Time Limits Strictly Construed
Whenever this Franchise sets forth a time for any act to be performed by Grantee, such
time shall be deemed to be of the essence, and any failure of Grantee to perform within the
allotted time may be considered a breach of this Franchise and sufficient grounds for the City to
invoke any relevant remedy in accordance with Section 13.1 of this Franchise. While Grantee
agrees to use its best efforts to respond to electronic requests by the City for information, books
or records within the time set forth in this Franchise, the parties agree that Grantee’s failure to
respond to the electronic request, if such error was inadvertent or unintentional, shall not be
deemed a breach of this Franchise. Notwithstanding the foregoing, the parties hereby agree that
it is not the City’s intention to subject Grantee to penalties, fines, forfeitures or revocation of the
Franchise for violations of the Franchise where the violation was a good faith error that resulted
in no or minimal negative impact on the Subscribers within the Franchise Area, or where strict
performance would result in practical difficulties and hardship to Grantee which outweighs the
benefit to be derived by the City and/or Subscribers.
4.8 Franchise Amendment Procedure
Either party may at any time seek an amendment of this Franchise by so notifying the
other party in writing. Within thirty (30) days of receipt of notice, or such other time as the
parties may agree, the City and Grantee shall meet to discuss the proposed amendment(s). If the
parties reach a mutual agreement upon the suggested amendment(s), such amendment(s) shall be
submitted to the City Council for its approval. If so approved by the City Council and Grantee,
then such amendment(s) shall be deemed part of this Franchise. If mutual agreement is not
reached, there shall be no amendment.
4.9 Late Fees
(A) For purposes of this subsection, any assessment, charge, cost, fee or sum,
however characterized, that Grantee imposes upon a Subscriber solely for late payment of a bill
shall be deemed a late fee.
(B) Nothing in this subsection shall be deemed to create, limit, or otherwise affect the
ability of Grantee to impose other assessments, charges, fees, or sums other than those permitted
by this subsection, for Grantee’s other services or activities it performs in compliance with
Applicable Law, including FCC law, rule, or regulation.
(C) Grantee’s late fee and disconnection policies and practices shall be
nondiscriminatory and such policies and practices, and any fees imposed pursuant to this
subsection, shall apply equally in all parts of the City without regard to the neighborhood or
income level of the Subscriber.
8.a
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4.10 Force Majeure
In the event Grantee is prevented or delayed in the performance of any of its obligations
under this Franchise by reason beyond the control of Grantee, Grantee shall have a reasonable
time, under the circumstances, to perform the affected obligation under this Franchise or to
procure a substitute for such obligation that is satisfactory to the City. Those conditions that are
not within the control of Grantee include, but are not limited to, natural disasters, civil
disturbances, work stoppages or labor disputes, power outages, telephone network outages, and
severe or unusual weather conditions, all of which have a direct and substantial impact on
Grantee’s ability to provide Cable Services in the City and were not caused and could not have
been avoided by Grantee, who used its best efforts in its operations to avoid such results.
If Grantee believes that a reason beyond its control has prevented or delayed its
compliance with the terms of this Franchise, Grantee shall provide documentation as reasonably
required by the City to substantiate Grantee’s claim. If Grantee has not yet cured the deficiency,
Grantee shall also provide the City with its proposed plan for remediation, including the timing
for such cure.
FINANCIAL AND INSURANCE REQUIREMENTS SECTION 5.
5.1 Indemnification
(A) General Indemnification. Grantee shall indemnify, defend, and hold the City, its
officers, officials, boards, commissions, agents, and employees, harmless from any action or
claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and
reasonable attorneys’ fees or reasonable expenses, arising from any casualty or accident to
Person or property, including, without limitation, copyright infringement, defamation, and all
other damages in any way arising out of, or by reason of, any construction, excavation,
operation, maintenance, reconstruction, or any other act done under this Franchise, by or for
Grantee, its agents, or its employees, or by reason of any neglect or omission of Grantee.
Grantee shall consult and cooperate with the City while conducting its defense of the City.
Grantee shall not be obligated to indemnify the City to the extent of the City’s negligence or
willful misconduct.
(B) Additional Circumstances. Grantee shall also indemnify, defend and hold the
City harmless for any claim for injury, damage, loss, liability, cost or expense, including court
and appeal costs and reasonable attorneys’ fees or reasonable expenses in any way arising out of:
(1) The lawful actions of the City in granting this Franchise to the extent such
actions are consistent with this Franchise and Applicable Law.
(2) Damages arising out of any failure by Grantee to secure consents from the
owners, authorized distributors, or licensees/licensors of programs to be delivered by the
Cable System, whether or not any act or omission complained of is authorized, allowed,
or prohibited by this Franchise.
8.a
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(C) Procedures and Defense. If a claim or action arises, the City or any other
indemnified party shall promptly tender the defense of the claim to Grantee, which defense shall
be at Grantee’s expense. The City may participate in the defense of a claim, but if Grantee
provides a defense at Grantee’s expense then Grantee shall not be liable for any attorneys’ fees,
expenses, or other costs the City may incur if it chooses to participate in the defense of a claim,
unless and until separate representation as described below in subsection 5.1(E) is required. In
that event, the provisions of subsection 5.1(E) shall govern Grantee’s responsibility for City’s
attorneys’ fees, expenses, or other costs. In any event, Grantee may not agree to any settlement
of claims affecting the City without the City’s approval.
(D) Non-waiver. The fact that Grantee carries out any activities under this Franchise
through independent contractors shall not constitute an avoidance of or defense to Grantee’s duty
of defense and indemnification under this subsection.
(E) Expenses. If separate representation to fully protect the interests of both parties is
or becomes necessary, such as a conflict of interest between the City and the counsel selected by
Grantee to represent the City, Grantee shall pay, from the date such separate representation is
required forward, all reasonable expenses incurred by the City in defending itself with regard to
any action, suit, or proceeding subject to indemnification by Grantee. Provided, however, that in
the event that such separate representation is or becomes necessary, and the City desires to hire
counsel or any other outside experts or consultants and desires Grantee to pay those expenses,
then the City shall be required to obtain Grantee’s consent to the engagement of such counsel,
experts, or consultants, such consent not to be unreasonably withheld. The City’s expenses shall
include all reasonable out-of-pocket expenses, such as consultants’ fees and court costs, and shall
also include the reasonable value of any services rendered by the City Attorney or his/her
assistants or any employees of the City or its agents, but shall not include outside attorneys’ fees
for services that are unnecessarily duplicative of services provided to the City by Grantee, except
in the event of a conflict of interest where such duplication may be required.
5.2 Insurance
(A) Grantee shall maintain in full force and effect at its own cost and expense each of
the following policies of insurance:
(1) Commercial General Liability insurance with limits of no less than two
million dollars ($2,000,000) per occurrence and five million dollars ($5,000,000) general
aggregate. Coverage shall be at least as broad as that provided by ISO CG 00 01 1/96 or
its equivalent and include severability of interests. Such insurance shall name the City,
its officers, officials and employees as additional insureds per ISO CG 2026 or its
equivalent. There shall be a waiver of subrogation and rights of recovery against the
City, its officers, officials and employees. Coverage shall apply as to claims between
insureds on the policy, if applicable. Coverage may take the form of a primary layer and
a secondary or umbrella layer, but the combination of layers must equal five million
dollars ($5,000,000) at a minimum.
8.a
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(2) Commercial Automobile Liability insurance with minimum combined
single limits of one million dollars ($1,000,000) each occurrence with respect to each of
Grantee’s owned, hired and non-owned vehicles assigned to or used in the operation of
the Cable System in the City. The policy shall contain a severability of interest
provision.
(B) The insurance shall not be canceled or materially changed so as to be out of
compliance with these requirements without thirty (30) days’ written notice first provided to the
City, via certified mail, and ten (10) days’ notice for nonpayment of premium. If the insurance is
canceled or materially altered so as to be out of compliance with the requirements of this
subsection within the term of this Franchise, Grantee shall provide a replacement policy.
Grantee agrees to maintain continuous uninterrupted insurance coverage, in at least the amounts
required, for the duration of this Franchise and, in the case of the Commercial General Liability,
for at least one (1) year after expiration of this Franchise.
5.3 Deductibles/Certificate of Insurance
Any deductible of the policies shall not in any way limit Grantee’s liability to the City.
(A) Endorsements.
(1) All policies shall contain, or shall be endorsed so that:
(a) The City, its officers, officials, boards, commissions, employees,
and agents are to be covered as, and have the rights of, additional
insureds with respect to liability arising out of activities performed
by, or on behalf of, Grantee under this Franchise or Applicable
Law, or in the construction, operation or repair, or ownership of
the Cable System;
(b) Grantee’s insurance coverage shall be primary insurance with
respect to the City, its officers, officials, boards, commissions,
employees, and agents. Any insurance or self-insurance
maintained by the City, its officers, officials, boards, commissions,
employees, and agents shall be in excess of Grantee’s insurance
and shall not contribute to it; and
(c) Grantee’s insurance shall apply separately to each insured against
whom a claim is made or lawsuit is brought, except with respect to
the limits of the insurer’s liability.
(B) Acceptability of Insurers. The insurance obtained by Grantee shall be placed with
insurers with a Best’s rating of no less than “A -” or better.
(C) Verification of Coverage. Grantee shall furnish the City with certificates of
insurance and endorsements or a copy of the page of the policy reflecting blanket additional
8.a
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insured status. The certificates and endorsements for each insurance policy are to be signed by a
Person authorized by that insurer to bind coverage on its behalf. The certificates and
endorsements for each insurance policy are to be on standard forms or such forms as are
consistent with standard industry practices.
(D) Self-Insurance. In the alternative to providing a certificate of insurance to the
City certifying insurance coverage as required above, Grantee may provide self-insurance in the
same amount and level of protection for Grantee and the City, its officers, agents, and employees
as otherwise required under this Section. The adequacy of self-insurance shall be subject to the
periodic review and approval of the City.
5.4 Security
(A) Grantee shall provide a performance bond, in a form acceptable to the City, in the
amount of One Hundred Thousand dollars ($100,000) (the “Security”) to ensure the faithful
performance of its responsibilities under this Franchise and Applicable Law in accordance with
the procedures set forth in the performance bond. Grantee may be required to obtain additional
security, such as generally applicable construction bonds, in accordance with the City’s
permitting requirements. Grantee shall pay all premiums or costs associated with maintaining
the Security, and shall keep the same in full force and effect at all times and shall immediately
replenish the bond upon foreclosure. Grantee shall not cancel the Security without obtaining an
alternative performance bond in conformance with this Franchise. If there is an uncured breach
by Grantee of a material provision of this Franchise or a claim by the City of a pattern of
repeated violations of any provision(s) of this Franchise by Grantee, then the City may require,
in addition to the bond described herein, and Grantee shall establish and provide within thirty
(30) days from receiving notice from the City, to the City as security for the faithful performance
by Grantee of all of the provisions of this Franchise, a letter of credit, under terms and conditions
and from a financial institution satisfactory to the City, in the amount of fifty thousand dollars
($50,000).
(B) In the event that Grantee establishes a letter of credit pursuant to the procedures of
this Section, then the letter of credit shall be maintained at fifty thousand dollars ($50,000) until
the alleged uncured breach has been resolved.
(C) After completion of the procedures set forth in Section 13.1 or other applicable
provisions of this Franchise, the letter of credit may be drawn upon by the City for purposes
including, but not limited to, the following:
(1) Failure of Grantee to pay the City sums due under the terms of this
Franchise;
(2) Reimbursement of costs borne by the City to correct Franchise violations
not corrected by Grantee;
8.a
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(3) Monetary remedies or damages assessed against Grantee due to default or
breach of Franchise requirements; and,
(D) The City shall give Grantee written notice of any withdrawal under this
subsection upon such withdrawal. Within seven (7) days following receipt of such notice,
Grantee shall restore the letter of credit to the amount required under this Franchise.
(E) Grantee shall have the right to appeal to the Hearing Examiner for reimbursement
in the event Grantee believes that the letter of credit was drawn upon improperly. Grantee shall
also have the right of judicial appeal if Grantee believes the letter of credit has not been properly
drawn upon in accordance with this Franchise. Any funds the City erroneously or wrongfully
withdraws from the letter of credit shall be returned to Grantee with interest, from the date of
withdrawal at a rate equal to the prime rate of interest as quoted in the Wall Street Journal.
CUSTOMER SERVICE SECTION 6.
6.1 Customer Service Standards
Grantee shall comply with the customer service standards of the FCC, as the same may
be amended from time to time. The City reserves its right to adopt customer service standards
under its police powers and if the City intends to exercise this right, it will enter into discussions
with Grantee.
6.2 Subscriber Privacy
Grantee shall fully comply with any provisions regarding the privacy rights of
Subscribers contained in federal or State law.
6.3 Subscriber Contracts
Grantee shall not enter into a contract with any Subscriber which is in any way
inconsistent with the terms of this Franchise, or any Exhibit hereto, or the requirements of any
applicable Customer Service Standard. Upon request, Grantee will provide to the City a sample
of the Subscriber contract or service agreement then in use.
6.4 Notice to the City
Grantee shall use reasonable efforts to furnish information provided to Subscribers or the
media in the normal course of business to the City.
6.5 Identification of Local Franchise Authority on Subscriber Bills
Within sixty (60) days after written request from the City, Grantee shall place the City’s
phone number on its Subscriber bills, to identify where a Subscriber may call to address
escalated complaints.
8.a
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REPORTS AND RECORDS SECTION 7.
7.1 Open Records
(A) Grantee shall manage all of its operations in accordance with a policy of keeping
its documents and records open and accessible to the City. In addition to any other records that
may be provided for under any other section of this Franchise, and without limiting the
provisions of Section 10 of this Franchise, the City, including the City’s Finance Director and
Public Works Director or their designees, shall have access to, and the right to inspect, any books
and records of Grantee, its parent corporations and Affiliates, which are reasonably related to the
administration or enforcement of the terms of this Franchise, or Grantee’s use and location
within the City’s Rights-of-Way. Records subject to this Section 7.1 include, without limitation,
FCC filings on behalf of Grantee, its parent corporations, or Affiliates which directly relate to the
operation of the Cable System in the City; SEC filings; listing of Cable Services, rates, and
Channel line-ups; Cable Services added or dropped; Channel changes; the net number of
Subscribers and the number of Subscribers added and terminated; all planned construction
activity; Right-of-Way route maps; beginning and ending plant miles; total homes passed for the
previous twelve (12) months; and any significant technological changes occurring in the Cable
System; federal and State reports; reports of Subscriber complaints in the City and how such
complaints are resolved.
(B) Grantee shall not deny the City access to any of Grantee’s records on the basis
that Grantee’s records are under the control of any parent corporation, Affiliate, or a third party.
The City may, in writing, request copies of any such records or books and Grantee shall provide
such copies within thirty (30) days of the transmittal of such request. One (1) copy of all reports
and records required under this or any other subsection shall be furnished to the City, at the sole
expense of Grantee. If the requested books and records are too voluminous, or for security
reasons cannot be copied or removed, then Grantee may require that the City or its designee
inspect them at Grantee’s local offices. For purposes of clarity, any requirements to provide as-
built maps shall not be considered too voluminous or unable to be copied for security purposes
with respect to the provisions of this subsection (B). If any books or records of Grantee are not
kept in a local office and are not made available in copies to the City or its designee upon written
request as set forth above, and if the City determines that an examination of such records is
necessary or appropriate for the performance of any of the City’s duties, administration or
enforcement of this Franchise, then all reasonable travel and related expenses incurred in making
such examination shall be paid by Grantee.
7.2 Confidentiality
To the extent that books and records related to the City’s oversight and enforcement
authority are confidential, the information may be provided to the City or its duly authorized
agent(s) pursuant to a non-disclosure agreement whereby the City and/or its duly authorized
agent agrees not to make such information public, to the extent such nondisclosure complies with
the State Public Records Act, Chapter 42.56 of the Revised Code of Washington, and to the
extent Grantee makes the City or its duly authorized agent aware of such confidentiality.
8.a
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Grantee shall be responsible for clearly and conspicuously stamping the word “Confidential” on
each page that contains confidential or proprietary information, and shall provide a brief written
explanation as to why such information is confidential and exempt from public disclosure under
State law.
As a public agency, records and information provided to or otherwise used by the City
may be subject to a request submitted under the state Public Records Act. In such an event,
Grantee agrees to cooperate fully with the City in satisfying the City’s duties and obligations
under the Public Records Act, subject to Grantee’s rights under this Agreement and RCW
42.56.540. If a request is received for records Grantee has submitted to the City and has
identified as confidential, proprietary or protected trade secret material, the City will use its best
efforts to provide Grantee with notice of the request in accordance with RCW 42.56.540 and a
reasonable time (of no less than 10 days) within which Grantee may seek an injunction to
prohibit the City’s disclosure of the requested record. The City is not required to assert on
Grantee’s behalf any exemption based on trade secret, proprietary or confidential information,
provided, however, the City may assert such exemption if the City itself believes in good faith
that an exemption applies to the requested records. Grantee agrees to defend, indemnify and
hold the City, its officers, officials, employees, agents, and volunteers harmless from any and all
claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out
of or in connection with the assertion of an exemption to disclosure under the Public Records Act
based upon records claimed or identified by Grantee as confidential, proprietary or protected
trade secret material. The provisions of this section shall survive the expiration or termination of
this Franchise Agreement.
PROGRAMMING SECTION 8.
8.1 Broad Programming Categories
Grantee shall provide or enable the provision of at least the following initial broad
categories of programming to the extent such categories are reasonably available:
(A) Educational programming;
(B) Washington news, weather and information;
(C) Sports;
(D) General entertainment (including movies);
(E) Children/family-oriented;
(F) Arts, culture, and performing arts;
(G) Foreign language;
(H) Science/documentary;
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(I) National news, weather, and information; and,
(J) Public, Educational, and Government Access, to the extent required by this
Franchise.
8.2 Deletion or Reduction of Broad Programming Categories
(A) Grantee shall not delete or so limit as to effectively delete any broad category of
programming within its control without the prior written consent of the City.
(B) In the event of a modification proceeding under federal law, the mix and quality
of Cable Services provided by Grantee on the Effective Date of this Franchise shall be deemed
the mix and quality of Cable Services required under this Franchise throughout its term.
8.3 Obscenity
Grantee shall not transmit, or permit to be transmitted over any Channel subject to its
editorial control, any programming which is obscene under, or violates any provision of,
Applicable Law relating to obscenity, and which is not protected by the Constitution of the
United States. Grantee shall be deemed to have transmitted or permitted a transmission of
obscene programming only if a court of competent jurisdiction has found that any of Grantee’s
officers or employees or agents have permitted programming that is obscene under, or violative
of, any provision of Applicable Law relating to obscenity, and is otherwise not protected by the
Constitution of the United States, to be transmitted over any Channel subject to Grantee’s
editorial control. Grantee shall comply with all relevant provisions of federal law relating to
obscenity.
8.4 Parental Control Device
Upon request by any Subscriber, Grantee shall make available a parental control or
lockout device, traps, or filters to enable a Subscriber to control access to both the audio and
video portions of any or all Channels. Grantee shall inform its Subscribers of the availability of
the lockout device at the time of their initial subscription and periodically thereafter. Any device
offered shall be at a rate, if any, in compliance with Applicable Law.
8.5 Continuity of Service Mandatory
(A) It shall be the right of all Subscribers to continue to receive Cable Service from
Grantee insofar as their financial and other obligations to Grantee are honored. Grantee shall act
so as to ensure that all Subscribers receive continuous, uninterrupted Cable Service regardless of
the circumstances. For the purposes of this subsection, “uninterrupted” does not include short-
term outages of the Cable System for maintenance or testing.
(B) In the event of a change of Grantee, or in the event a new Cable Operator acquires
the Cable System in accordance with this Franchise, Grantee shall cooperate with the City, new
franchisee or Cable Operator in maintaining continuity of Cable Service to all Subscribers.
8.a
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During any transition period, Grantee shall be entitled to the revenues for any period during
which it operates the Cable System, and shall be entitled to reasonable costs for its services when
it no longer operates the Cable System.
(C) In the event Grantee fails to operate the Cable System for four (4) consecutive
days without prior approval of the Chief Administrative Officer, or without just cause, the City
may, at its option, operate the Cable System itself or designate another Cable Operator to operate
the Cable System until such time as Grantee restores service under conditions acceptable to the
City or a permanent Cable Operator is selected. If the City is required to fulfill this obligation
for Grantee, Grantee shall reimburse the City for all reasonable costs or damages that are the
result of Grantee’s failure to perform.
8.6 Services for the Disabled
Grantee shall comply with the Americans with Disabilities Act and any amendments
thereto.
ACCESS SECTION 9.
9.1 Designated Access Providers
(A) The City shall have the sole and exclusive responsibility for identifying the
Designated Access Providers, including itself, for Access purposes, to control and manage the
use of any or all Access Facilities provided by Grantee under this Franchise. As used in this
Section, such “Access Facilities” include the Channels, services, facilities, equipment, technical
components and/or financial support provided under this Franchise, which are used or useable by
and for Public Access, Educational Access, and Government Access (“PEG” or “PEG Access”).
(B) Grantee shall cooperate with the City in the City’s efforts to provide Access
programming, but will not be responsible or liable for any damages resulting from a claim in
connection with the programming placed on the Access Channels by the Designated Access
Provider.
9.2 Channel Capacity and Use
(A) Grantee shall make available to the City two (2) Downstream Channels for PEG
use as provided for in this Section.
(B) Standard Definition (“SD”) Digital Access Channels.
(1) Grantee shall provide one (1) Activated Downstream Channel for PEG
Access use in a standard definition (“SD”) digital format in Grantee’s Basic Service (“SD
Access Channel”). Grantee shall carry all components of the SD Access Channel Signals
provided by a Designated Access Provider including, but not limited to, closed
captioning, stereo audio, and other elements associated with the Programming. A
Designated Access Provider shall be responsible for providing the SD Access Channel
8.a
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Signal in an SD format to the demarcation point at the designated point of origination for
the SD Access Channel. At such time as the HD Access Channel described in subsection
(C) below is activated, the Designated Access Provider will provide only an HD Access
Channel Signal in an HD format. At that time, Grantee will broadcast the HD signal on
the HD Access Channel and also downconvert the HD signal for additional broadcast on
the SD Access Channel. Grantee shall transport and distribute the SD Access Channel
signal on its Cable System and shall not unreasonably discriminate against SD Access
Channels with respect to accessibility and functionality, and not unreasonably
discriminate as to the application of any applicable FCC Rules & Regulations, including
without limitation Subpart K Channel signal standards.
(2) With respect to signal quality, Grantee shall not be required to carry a SD
Access Channel in a higher quality format than that of the SD Access Channel signal
delivered to Grantee, but Grantee shall distribute the SD Access Channel signal without
degradation. Upon reasonable written request by a Designated Access Provider, Grantee
shall verify signal delivery to Subscribers with the Designated Access Provider,
consistent with the requirements of this subsection 9.2(B).
(3) Grantee shall be responsible for costs associated with the transmission of
SD Access signals on its side of the demarcation point, which for the purposes of this
subsection 9.2 (B)(3), shall mean up to and including the modulator where the City signal
is converted into a format to be transmitted over a fiber connection to Grantee. The City
or Designated Access Provider shall be responsible for costs associated with SD Access
signal transmission on its side of the demarcation point.
(4) SD Access Channels may require Subscribers to buy or lease special
equipment, available to all Subscribers, and subscribe to those Tiers of Cable Service,
upon which SD Channels are made available. Grantee is not required to provide free SD
equipment to Subscribers, including complimentary government and educational
accounts, nor modify its equipment or pricing policies in any manner.
(C) High Definition (“HD”) Digital Access Channels.
(1) After the Effective Date and within one hundred twenty (120) days’
written notice, Grantee shall activate one (1) HD Access Channel(s), for which the City
may provide Access Channel signals in HD format to the demarcation point at the
designated point of origination for the Access Channel.
(a) The City shall, in its written notice to Grantee as provided for in
this Section, confirm that it or its Designated Access Provider has
the capabilities to produce, has been producing and will produce
programming in an HD format for the newly activated HD Access
Channel; and,
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(b) There will be a minimum of five (5) hours per-day, five days per-
week of HD PEG programming available for the HD Access
Channel. For the purposes of this subsection, character-generated
programming (i.e., community bulletin boards) shall not satisfy, in
whole or in part, this programming requirement.
(2) The City shall be responsible for providing the HD Access Channel signal
in an HD digital format to the demarcation point at the designated point of origination for
the HD Access Channel. For purposes of this Franchise, an HD signal refers to a
television signal delivering picture resolution of either 720p or 1080i, or such other
resolution in this same range that Grantee utilizes for other similar non-sport, non-movie
programming channels on the Cable System, whichever is greater.
(3) Grantee shall transport and distribute the HD Access Channel signal on its
Cable System and shall not discriminate against the HD Access Channel with respect to
accessibility, functionality, and to the application of any applicable FCC Rules &
Regulations, including without limitation Subpart K Channel signal standards. With
respect to signal quality, Grantee shall not be required to carry the HD Access Channel in
a higher quality format than that of the HD Access Channel signal delivered to Grantee,
but Grantee shall distribute the HD Access Channel signal without degradation. Grantee
shall carry all components of the HD Access Channel signals provided by the Designated
Access Provider including, but not limited to, closed captioning, stereo audio and other
elements associated with the Programming. Upon reasonable written request by the City,
Grantee shall verify signal delivery to Subscribers with the City, consistent with the
requirements of this subsection 9.2(C).
(4) HD Access Channels may require Subscribers to buy or lease special
equipment, available to all Subscribers, and subscribe to those Tiers of Cable Service,
upon which the HD Channel is made available. Grantee is not required to provide free
HD equipment to Subscribers, including complimentary government and educational
accounts, nor modify its equipment or pricing policies in any manner.
(5) The City or any Designated Access Provider is responsible for acquiring
all equipment necessary to produce programming in HD.
(6) Grantee shall cooperate with the City to procure and provide, at City’s
cost, all necessary transmission equipment from the Designated Access Provider channel
origination point, at Grantee’s Headend and through Grantee’s distribution system, in
order to deliver the HD Access Channel. The City shall be responsible for the costs of all
transmission equipment, including HD modulator and demodulator, encoder or decoder
equipment, and multiplex equipment, required in order for Grantee to receive and
distribute the HD Access Channel signal, or for the cost of any resulting upgrades to the
video return line. The City and Grantee agree that such expense of acquiring and
installing the transmission equipment or upgrades to the video return line qualifies as a
capital cost for PEG Facilities within the meaning of the Cable Act 47 U.S.C.A.
8.a
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Section 542(g)(20)(C), and therefore is an appropriate use of revenues derived from those
PEG capital fees provided for in this Franchise.
(D) Grantee shall simultaneously carry the one (1) initial HD Access Channel
provided for in subsection 9.2(C) in high definition format on the Cable System, in addition to
simultaneously carrying in standard definition format the SD Access Channels provided pursuant
to subsection 9.2(B).
(E) There shall be no restriction on Grantee’s technology used to deploy and deliver
SD or HD signals so long as the requirements of the Franchise are otherwise met. Grantee may
implement HD carriage of the PEG Channel in any manner (including selection of compression,
utilization of IP, and other processing characteristics) that produces a signal quality for the
Subscriber that is reasonably comparable and functionally equivalent to similar commercial HD
Channels carried on the Cable System. In the event the City believes that Grantee fails to meet
this standard, the City will notify Grantee of such concern, and Grantee will respond to any
complaints in a timely manner.
9.3 Access Channel Assignments
Grantee will use reasonable efforts to minimize the movement of SD and HD Access
Channel assignments. In addition, Grantee will make reasonable efforts to locate HD Access
Channels provided pursuant to Section 9.2(C) in a location on its HD Channel lineup that is
easily accessible to Subscribers.
9.4 Relocation of Access Channels
Grantee shall provide City a minimum of sixty (60) days’ notice, and use its best efforts
to provide one hundred and twenty (120) days’ notice, prior to the time PEG Access Channel
designations are changed.
9.5 Support for PEG Access and Network Costs
(A) During the term of this Franchise Agreement, Grantee shall provide the following
contribution on a per month per Residential Subscriber basis (the “PEG Contribution”) to be
used solely for capital costs related to PEG Access, including the City’s institutional network
connections, or as may be permitted by Applicable Law:
(1) Sixty (60) days after the Effective Date, and for a one (1) year period,
Grantee shall collect from Subscribers and remit to the City a PEG Contribution of forty
one cents ($0.41) per Residential Subscriber per month.
(2) The PEG Contribution shall increase to fifty cents ($0.50) per Residential
Subscriber per month starting two (2) years after the Effective Date of this Franchise.
8.a
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(3) The PEG Contribution shall increase to sixty cents ($0.60) per Residential
Subscriber per month starting three (3) years after the Effective Date of this Franchise
through the tenth (10) year of this Franchise.
(4) For purposes of this Section only, the PEG Contribution fee shall not be
collected and remitted on the Cable Services received by Subscribers residing in Multiple
Dwelling Units billed on a bulk-billing basis or Subscribers receiving Cable Service on a
gratis or complimentary basis. Grantee shall make PEG Contribution payments
quarterly, following the effective date of this Franchise Agreement for the preceding
quarter ending March 31, June 30, September 30, and December 31. Each payment shall
be due and payable no later than thirty (30) days following the end of the quarter. The
City shall have sole discretion to allocate the expenditure of such payments for any
capital costs related to PEG Access. The parties agree that this Franchise shall provide
the City discretion to utilize the PEG Contribution for new internal network connections
and enhancements to the City’s existing network.
(5) If the City exercises its option to terminate the Dark Fiber Agreement set
forth in Section 12.2 prior to the expiration of its term, Comcast shall reduce the PEG Fee
to thirty cents ($0.30) per Residential Subscriber per month from the date of such
exercise through the remaining term of this Franchise.
9.6 Access Support Not Franchise Fees
Grantee agrees that capital support for Access costs arising from or relating to the
obligations set forth in this Section shall in no way modify or otherwise affect Grantee’s
obligations to pay Franchise Fees to the City. Grantee agrees that although the sum of Franchise
Fees plus the payments set forth in this Section may total more than five percent (5%) of
Grantee’s Gross Revenues in any 12-month period, the PEG Contribution shall not be offset or
otherwise credited in any way against any Franchise Fee payments under this Franchise
Agreement so long as such support is used for capital Access purposes consistent with this
Franchise and Applicable Law.
9.7 Access Channels on Basic Service or Lowest Priced HD Service Tier
All SD Access Channels under this Franchise Agreement shall be included by Grantee,
without limitation, as part of Basic Service. All HD Access Channels under this Franchise
Agreement shall be included by Grantee, without limitation, as part of the lowest priced Tier of
HD Cable Service upon which Grantee provides HD programming content.
9.8 Change in Technology
In the event Grantee makes any change in the Cable System and related equipment and
Facilities or in Grantee’s signal delivery technology which directly or indirectly affects the signal
quality or transmission of Access services or programming, Grantee shall at its own expense take
necessary technical steps or provide necessary technical assistance, including the acquisition of
8.a
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all necessary equipment and full training of City’s Access personnel to ensure that the
capabilities of Access services are not diminished or adversely affected by such change. If the
City implements a new video delivery technology that is currently offered and can be
accommodated on Grantee’s local Cable System, then the same provisions above shall apply. If
the City implements a new video delivery technology that is not currently offered on and/or that
cannot be accommodated by Grantee’s local Cable System, then the City shall be responsible for
acquiring all necessary equipment, facilities, technical assistance, and training to deliver the
signal to Grantee’s Headend for distribution to Subscribers.
9.9 Technical Quality
Grantee shall maintain all Upstream and Downstream Access services and Channels on
its side of the demarcation point at the same level of technical quality and reliability required by
this Franchise Agreement and all other Applicable Laws, rules, and regulations for Residential
Subscriber Channels. Grantee shall provide routine maintenance for all transmission equipment
on its side of the demarcation point, including modulators, decoders, multiplex equipment, and
associated cable and equipment necessary to carry a quality signal to and from the City’s
facilities for the Access Channels provided under this Franchise Agreement. Grantee shall also
provide, if requested in advance by the City, advice and technical expertise regarding the proper
operation and maintenance of transmission equipment on the City’s side of the demarcation
point. The City shall be responsible for all initial and replacement costs of all HD modulator and
demodulator equipment. The City shall also be responsible, at its own expense, to replace any of
Grantee’s equipment that is damaged by the gross negligence or intentional acts of City staff.
Grantee shall be responsible, at its own expense, to replace any of Grantee’s equipment that is
damaged by the gross negligence or intentional acts of Grantee’s staff. The City will be
responsible for the cost of repairing and/or replacing any HD PEG Access transmission
equipment that Grantee maintains that is used exclusively for transmission of the City’s and/or
its Designated Access Providers’ HD Access programming.
9.10 Return Lines/Access Origination
(A) Grantee shall continuously maintain the PEG/I-Net return lines previously
constructed to City Hall, Kent, throughout the term of the Franchise, in order to enable the
distribution of Access programming to Residential Subscribers on the Access Channels;
provided, however, that Grantee’s maintenance obligations with respect to either of these
locations shall cease if a location is no longer used in the future by the City to originate Access
programming.
(B) Grantee shall construct and maintain new Fiber Optic return lines to the Headend
from production facilities of new or relocated Designated Access Providers delivering Access
programming to Residential Subscribers as requested in writing by the City. All actual
construction costs incurred by Grantee from the nearest interconnection point to the Designated
Access Provider shall be paid by the City or the Designated Access Provider. New return lines
shall be completed within one (1) year from the request of the City or its Designated Access
Provider, or as otherwise agreed to by the parties. If an emergency situation necessitates
8.a
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movement of production facilities to a new location, the parties shall work together to complete
the new return line as soon as reasonably possible.
GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION SECTION 10.
10.1 Right to Construct
Subject to Applicable Law, regulations, rules, resolutions, and ordinances of the City and
the provisions of this Franchise, Grantee may perform all construction in the Rights-of-Way for
any facility needed for the maintenance or extension of Grantee’s Cable System.
10.2 Right-of-Way Meetings
Grantee will regularly attend and participate in meetings of the City, of which Grantee is
made aware, regarding Right-of-Way issues that may impact the Cable System.
10.3 Joint Trenching/Boring Meetings
Grantee will regularly attend and participate in planning meetings of the City of which
Grantee is made aware to anticipate joint trenching and boring. Whenever it is possible and
reasonably practicable to joint trench or share bores or cuts, Grantee shall work with other
providers, licensees, permittees, and franchisees in order to reduce as much as possible the
number of Right-of-Way cuts within the City.
10.4 General Standard
All work authorized and required hereunder shall be done in a safe, thorough, and
workmanlike manner. All installations of equipment shall be permanent in nature, durable, and
installed in accordance with good engineering practices consistent with applicable permit
requirements.
10.5 Permits Required for Construction
Prior to doing any work in the Right-of Way or other public property, Grantee shall apply
for and obtain appropriate permits from the City. As part of the permitting process, the City may
impose such conditions and regulations as are necessary for the purpose of protecting any
structures in such Rights-of-Way, proper restoration of such Rights-of-Way and structures, the
protection of the public, and the continuity of pedestrian or vehicular traffic. Such conditions
may also include the provision of a construction schedule and maps showing the location of the
facilities to be installed in the Right-of-Way. Grantee shall pay all applicable fees for the
requisite City permits received by Grantee.
8.a
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10.6 Emergency Permits
In the event that emergency repairs are necessary, Grantee shall immediately notify the
City of the need for such repairs. Grantee may initiate such emergency repairs and shall apply
for appropriate permits within forty-eight (48) hours after discovery of the emergency.
10.7 Compliance with Applicable Codes
(A) City Construction Codes. Grantee shall comply with all applicable State and City
construction codes, including without limitation the City of Kent Design and Construction
Standards; the State building codes adopted through the State Building Code Council and as
amended locally by the City, including without limitation the International Building Code, the
International Fire Code, and the International Mechanical Code; the Electronic Industries
Association Standard for Physical Location and Protection of Below-Ground Fiber Optic Cable
Plant; and all applicable zoning codes and regulations.
(B) Tower Specifications. Antenna supporting structures (towers) shall be designed
for the proper loading as specified by the Electronics Industries Association (EIA), as those
specifications may be amended from time to time. Antenna supporting structures (towers) shall
be painted, lighted, erected, and maintained in accordance with all applicable rules and
regulations of the Federal Aviation Administration and all other applicable federal, State, and
local codes or regulations.
(C) Safety Codes. Grantee shall comply with all federal, State, and City safety
requirements, rules, regulations, laws, and practices, and employ all necessary devices as
required by Applicable Law during construction, operation, and repair of its Cable System. By
way of illustration and not limitation, Grantee shall comply with the National Electric Code,
National Electrical Safety Code, and Occupational Safety and Health Administration (OSHA)
Standards.
10.8 Minimal Interference
Work in the Right-of-Way, on other public property, near public property, or on or near
private property shall be done in a manner that causes the least interference with the rights and
reasonable convenience of property owners and residents. Grantee’s Cable System shall be
constructed and maintained in such manner as not to interfere with sewers, water pipes, or any
other property of the City, or with any other pipes, wires, conduits, pedestals, structures, or other
facilities that may have been laid in the Rights-of-Way by or under the City’s authority.
Grantee’s Cable System shall be located, erected, and maintained so as not to endanger or
interfere with the lives of Persons, or to interfere with new improvements the City may deem
proper to make, or to unnecessarily hinder or obstruct the free use of the Rights-of-Way or other
public property, and shall not interfere with the travel and use of public places by the public
during the construction, repair, operation, or removal thereof, and shall not obstruct or impede
traffic. In the event of such interference, the City may require the removal or relocation of
8.a
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Grantee’s lines, cables, equipment, and other appurtenances from the property in question at
Grantee’s expense.
10.9 Prevent Injury/Safety
Grantee shall provide and use any equipment and facilities necessary to control and carry
Grantee’s signals so as to prevent injury to the City’s property or property belonging to any
Person. Grantee, at its own expense, shall repair, renew, change, and improve its facilities to
keep them in good repair, and safe and presentable condition. All excavations made by Grantee
in the Rights-of-Way shall be properly safeguarded for the prevention of accidents by the
placement of adequate barriers, fences or boarding, the bounds of which during periods of dusk
and darkness shall be clearly designated by warning lights. Further, any street cuts made and
repaired shall be performed in accordance with all City construction codes.
10.10 Hazardous Substances
(A) Grantee shall comply with any and all Applicable Laws, statutes, regulations and
orders concerning hazardous substances relating to Grantee’s Cable System in the Rights-of-
Way.
(B) Upon reasonable notice to Grantee, the City may inspect Grantee’s facilities in the
Rights-of-Way to determine if any release of hazardous substances has occurred or may occur
from or related to Grantee’s Cable System. In removing or modifying Grantee’s facilities as
provided in this Franchise, Grantee shall also remove all residue of hazardous substances related
thereto.
(C) The provisions of Section 5.1 shall apply to any claims against the City arising
out of a release of hazardous substances caused by Grantee’s Cable System.
10.11 Locates
Prior to doing any work in the Right-of-Way, Grantee shall give appropriate notices to
the City and to the notification association established in Ch. 19.122 RCW, as amended.
Within forty-eight (48) hours after any City employee, contractor, franchisee, licensee, or
permittee notifies Grantee of a proposed Right-of-Way excavation or the need for a design
locate, Grantee shall, at Grantee’s expense:
(A) Mark on the surface all of its located underground facilities within the area of the
proposed excavation or design;
(B) Notify the excavator of any unlocated underground facilities in the area of the
proposed excavation or design; or
(C) Notify the excavator that Grantee does not have any underground facilities in the
vicinity of the proposed excavation or design.
8.a
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10.12 Notice to Private Property Owners
Except in the case of an emergency involving public safety or service interruption to a
large number of customers, Grantee shall give reasonable advance notice to private property
owners or legal tenants of work on or adjacent to private property prior to entering upon private
premises.
Nothing herein shall be construed as authorizing access or entry to private property or
any other property where such right to access or entry is not otherwise provided by law.
10.13 Underground Construction and Use of Poles
(A) When required by general ordinances, resolutions, regulations, or rules of the City
or applicable State or federal law, Grantee’s Cable System shall be placed underground at
Grantee’s expense, unless funding is generally available for such relocation to all users of the
Rights-of-Way. Placing facilities underground does not preclude the use of ground-mounted
appurtenances.
(B) Where electric, telephone, and other above-ground utilities are installed
underground at the time of Cable System construction, or when all such wiring is subsequently
placed underground, all Cable System lines shall also be placed underground with other wireline
service at no expense to the City. Related Cable System equipment, such as pedestals, must be
placed in accordance with the City’s applicable code requirements and rules. In areas where
either electric or telephone utility wiring is aerial, Grantee may install aerial cable, except when a
property owner or resident requests underground installation and agrees to bear the additional
cost in excess of aerial installation.
(C) Grantee shall utilize existing poles and conduit wherever possible.
(D) In the event Grantee cannot obtain the necessary poles and related facilities
pursuant to a pole attachment agreement, and only in such event, then it shall be lawful for
Grantee to make all needed excavations in the Rights-of-Way for the purpose of placing,
erecting, laying, maintaining, repairing, and removing poles, supports for wires and conductors,
and any other facility needed for the maintenance or extension of Grantee’s Cable System. All
poles of Grantee shall be located as designated by the proper City authorities.
(E) This Franchise does not grant, give, or convey to Grantee the right or privilege to
install its facilities in any manner on specific utility poles or equipment of the City or any other
Person.
(F) Grantee and the City recognize that situations may occur in the future where the
City may desire to place its own cable or conduit for Fiber Optic cable in trenches or bores
opened by Grantee. Grantee agrees to cooperate with the City in any construction by Grantee
that involves trenching or boring, provided that the City has first notified Grantee in some
manner that it is interested in sharing the trenches or bores in the area where Grantee’s
construction is occurring and the City enters into a contract with Grantee consistent with RCW
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80.36.150, this Franchise and the Municipal Code. Grantee shall allow the City to lay its cable,
conduit, and Fiber Optic cable in Grantee’s trenches and bores, provided there is reasonable
space available and the City shares in the cost of the trenching and boring on the same terms and
conditions as Grantee, or otherwise in accordance with Applicable Law. The City shall be
responsible for maintaining its respective cable, conduit, and Fiber Optic cable buried in
Grantee’s trenches and bores under this subsection. Any conduit, cable or Fiber Optic Cable
installed pursuant to this subsection shall not be used for the purpose of competing with Grantee
in the provision of Cable Services.
10.14 Undergrounding of Multiple Dwelling Unit Drops
In cases of single site Multiple Dwelling Units, Grantee shall minimize the number of
individual aerial drop cables by installing multiple drop cables underground between the pole
and Multiple Dwelling Units where determined to be technologically feasible in agreement with
the owner and/or owner’s association of the Multiple Dwelling Units.
10.15 Burial Standards
(A) Depths. Unless otherwise required by law, Grantee and its contractors shall
comply with the following burial depth standards. In no event shall Grantee be required to bury
its cable deeper than electric or gas facilities or existing telephone facilities in the same portion
of the Right-of-Way, so long as those facilities have been buried in accordance with Applicable
Law:
(1) Underground cable drops from the curb shall be buried at a minimum
depth of twelve (12) inches unless a sprinkler system or other construction concerns
preclude it, in which case underground cable drops shall be buried at a depth of at least
six (6) inches.
(2) Feeder lines shall be buried at a minimum depth of eighteen (18) inches.
(3) Trunk lines shall be buried at a minimum depth of thirty-six (36) inches.
(4) Fiber Optic cable shall be buried at a minimum depth of thirty-six (36)
inches.
In the event of a conflict between this subsection and any generally applicable
construction code standard, the generally applicable construction code standard shall control.
(B) Timeliness. Cable drops installed by Grantee to residences shall be buried
according to these standards within one (1) calendar week of initial installation, or at a time
mutually-agreed upon between Grantee and the Subscriber. When freezing surface conditions
prevent Grantee from achieving such timetable, Grantee shall apprise the Subscriber of the
circumstances and the revised schedule for burial, and shall provide the Subscriber with
Grantee’s telephone number and instructions as to how and when to call Grantee to request
burial of the line if the revised schedule is not met.
8.a
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10.16 Cable Drop Bonding
Grantee shall ensure that all cable drops are properly bonded at the home, consistent with
applicable code requirements.
10.17 Prewiring
Any ordinance or resolution of the City that requires prewiring of subdivisions or other
developments for electrical and telephone service shall be construed to include wiring for Cable
Systems.
10.18 Repair and Restoration of Property
(A) Grantee shall protect public and private property from damage. If damage occurs,
Grantee shall promptly notify the property owner within twenty-four (24) hours in writing.
(B) Whenever Grantee disturbs or damages any Right-of-Way, other public property
or any private property, Grantee shall promptly restore the Right-of-Way or property to at least
its prior condition, normal wear and tear excepted, at its own expense.
(C) Rights-of-Way and Other Public Property. Grantee shall warrant any restoration
work performed by or for Grantee in the Right-of-Way or on other public property in accordance
with Applicable Law. If restoration is not satisfactorily performed by Grantee within a
reasonable time, the City may, after prior notice to Grantee, 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 cost of those repairs from Grantee. Within thirty (30) days of receipt of an
itemized list of those costs, including the costs of labor, materials, and equipment, Grantee shall
pay the City.
(D) Private Property. Upon completion of the work which caused any disturbance or
damage, Grantee shall promptly commence restoration of private property and will use best
efforts to complete the restoration within seventy-two (72) hours, considering the nature of the
work that must be performed.
10.19 Acquisition of Facilities
Upon Grantee’s acquisition of Cable System-related facilities in any City Right-of-Way,
or upon the addition to the City of any area in which Grantee owns or operates any such facility,
Grantee shall, at the City’s request, submit to the City a statement describing all such facilities
involved, whether authorized by franchise, permit, license or other prior right, and specifying the
location of all such facilities to the extent Grantee has possession of such information. Such
Cable System-related facilities shall immediately be subject to the terms of this Franchise.
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10.20 Discontinuing Use/Abandonment of Cable System Facilities
Whenever Grantee intends to discontinue using any facility within the Rights-of-Way,
Grantee shall submit for the City’s approval a complete description of the facility and the date on
which Grantee intends to discontinue using the facility. Grantee may remove the facility or
request that the City permit it to remain in place. Notwithstanding Grantee’s request that any
such facility remain in place, the City may require Grantee to remove the facility from the Right-
of-Way or modify the facility to protect the public health, welfare, safety and convenience, or
otherwise serve the public interest at no cost to the City. The City may require Grantee to
perform a combination of modification and removal of the facility. Grantee shall complete such
removal or modification in accordance with a schedule set by the City. Until such time as
Grantee removes or modifies the facility as directed by the City, or until the rights to and
responsibility for the facility are accepted by another Person having authority to construct and
maintain such facility, Grantee shall be responsible for all necessary repairs and relocations of
the facility, as well as maintenance of the Right-of-Way, in the same manner and degree as if the
facility were in active use, and Grantee shall retain all liability for such facility. If Grantee
abandons its facilities, the City may choose to use such facilities for any purpose whatsoever,
including but not limited to Access purposes.
10.21 Survey, Locates and Movement of Cable System Facilities for City Purposes
(A) Within thirty (30) days of the City’s request, Grantee shall submit as-built plans
verified by a professional engineer as to exact location of Grantee’s facilities, or other
information as the City may request that identifies the exact location of Grantee’s facilities,
within the boundaries of the area requested by the City. Grantee shall determine and advise the
City of the exact location of Grantee’s facilities without cost to the City, its contractors, or any
authorized agents.
(B) The City shall have the right to require Grantee to, at the City’s request, locate
(which may include potholing) and survey Grantee’s facilities and equipment, relocate, remove,
replace, modify or disconnect Grantee’s facilities and equipment located in the Rights-of-Way or
on any other property of the City for public purposes, in the event of an emergency; or when the
public health, safety, or welfare requires such change. For example, without limitation, this
movement of or the request to locate Grantee’s facilities may be needed by reason of traffic
conditions, public safety, Right-of-Way vacation, Right-of-Way construction, change or
establishment of Right-of-Way grade, installation of sewers, drains, gas or water pipes, or any
other types of structures or improvements by the City for public purposes. Such work shall be
performed at Grantee’s expense. Except when a shorter time is necessitated due to an
emergency, Grantee shall, within forty-five (45) days’ written notice by the City, or such longer
period as the City may specify, complete all work to temporarily or permanently relocate,
remove, replace, modify, or disconnect any of its facilities and equipment located in the Rights-
of-Way or on any other property of the City. In the event of any capital improvement project
exceeding five hundred thousand dollars( $500,000) in expenditures by the City, which requires
the removal, replacement, modification, or disconnection of Grantee’s facilities or equipment,
the City shall provide at least sixty (60) days’ written notice to Grantee. Following notice by the
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City, if all users of the Right-of-Way relocate aerial facilities underground as part of an
undergrounding project, Grantee shall participate in the planning for relocation of its aerial
facilities contemporaneously with other utilities. If the City requires Grantee to relocate its
facilities located within the Rights-of-Way, the City will work collaboratively with Grantee to
identify available alternate locations within the Rights-of-Way for Grantee to relocate its
facilities at Grantee’s cost.
If Grantee fails to complete this work within the time prescribed above and to the City’s
satisfaction, the City may cause such work to be done and bill the cost of the work to Grantee,
including all costs and expenses incurred by the City due to Grantee’s delay. In such event, the
City shall not be liable for any damage to any portion of Grantee’s Cable System. Within thirty
(30) days of receipt of an itemized list of those costs, Grantee shall pay the City. In any event, if
Grantee fails to timely relocate, remove, replace, modify or disconnect Grantee’s facilities and
equipment, and that delay results in any delay damage accrued by or against the City, Grantee
will be liable for all documented costs of construction delays attributable to Grantee’s failure to
timely act. Grantee reserves the right to challenge any determination by the City of costs for
construction delays related to an alleged failure to act in accordance with this subsection 10.21.
10.22 Reimbursement of Grantee Costs
Grantee specifically reserves any rights it may have under Applicable Law for
reimbursement of costs related to undergrounding or relocation of the Cable System, and nothing
herein shall be construed as a waiver of such rights.
10.23 Movement of Cable System Facilities for Other Franchise Holders
If any removal, replacement, modification, or disconnection of the Cable System is
required to accommodate the construction, operation, or repair of the facilities or equipment of
another City franchise holder, Grantee shall, after at least thirty (30) days’ advance written
notice, take action to effect the necessary changes requested by the responsible entity. Grantee
may require that the costs associated with the removal or relocation be paid by the benefited
party.
10.24 Temporary Changes for Other Permittees
At the request of any Person holding a valid permit and upon reasonable advance notice,
Grantee 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, and Grantee may require a reasonable deposit of the estimated
payment in advance.
10.25 Reservation of City Use of Right-of-Way
Nothing in this Franchise shall prevent the City or public utilities owned, maintained, or
operated by public entities other than the City from constructing sewers, grading, paving,
repairing or altering any Right-of-Way, laying down, repairing, or removing water mains or
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constructing or establishing any other public work or improvement. All such work shall be done,
insofar as practicable, so as not to obstruct, injure, or prevent the use and operation of Grantee’s
Cable System.
10.26 Tree Trimming
Grantee may prune or cause to be pruned, using proper pruning practices, any tree in the
City’s Rights-of-Way which interferes with Grantee’s Cable System. Grantee shall comply with
any general ordinance or regulations of the City regarding tree trimming. Except in emergencies,
Grantee may not prune trees at a point below thirty (30) feet above sidewalk grade until one (1)
week’s written notice has been given to the owner or occupant of the premises abutting the
Right-of-Way in or over which the tree is growing. The owner or occupant of the abutting
premises may prune such tree at his or her own expense during this one (1) week period. If the
owner or occupant fails to do so, Grantee may prune such tree at its own expense. For purposes
of this subsection, emergencies exist when it is necessary to prune to protect the public or
Grantee’s facilities from imminent danger only.
10.27 Inspection of Construction and Facilities
The City may inspect any of Grantee’s facilities, equipment, or construction at any time
upon at least twenty-four (24) hours’ notice or, in case of emergency, upon demand without prior
notice. The City shall have the right to charge generally applicable inspection fees therefore. If
an unsafe condition is found to exist, the City, in addition to taking any other action permitted
under Applicable Law, may order Grantee, in writing, to make the necessary repairs and
alterations specified therein forthwith to correct the unsafe condition by a time the City
establishes. The City has the right to correct, inspect, administer and repair the unsafe condition
if Grantee fails to do so and to charge Grantee for its costs.
10.28 Stop Work
(A) On notice from the City that any work is being performed contrary to the
provisions of this Franchise, or in an unsafe or dangerous manner as determined by the City, or
in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the
work may immediately be stopped by the City.
(B) The stop work order shall:
(1) Be in writing;
(2) Be given to the Person doing the work, or posted on the work site;
(3) Be sent to Grantee by overnight delivery at the address given herein;
(4) Indicate the nature of the alleged violation or unsafe condition; and
(5) Establish conditions under which work may be resumed.
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Grantee shall be liable for all costs incurred by the City and associated with Grantee’s
violation and the City’s issuance of the stop work order. Grantee reserves the right to challenge
any City determination of Grantee’s obligations under this Section.
10.29 Work of Contractors and Subcontractors
Grantee’s contractors and subcontractors shall be licensed and bonded in accordance with
the City’s ordinances, regulations, and requirements. Work by contractors and subcontractors is
subject to the same restrictions, limitations, and conditions as if the work were performed by
Grantee. Grantee shall be responsible for all work performed by its contractors, subcontractors,
and others performing work on its behalf as if the work were performed by it, and shall ensure
that all such work is performed in compliance with this Franchise and other Applicable Law, and
shall be jointly and severally liable for all damages and correcting all damage caused by them. It
is Grantee’s responsibility to ensure that contractors, subcontractors, or other Persons performing
work on Grantee’s behalf are familiar with the requirements of this Franchise and other
Applicable Law governing the work performed by them.
CABLE SYSTEM, TECHNICAL STANDARDS AND TESTING SECTION 11.
11.1 Subscriber Network
(A) Prior to the Effective Date of this Franchise, the parties acknowledge that Grantee
undertook a voluntary upgrade of its Cable System to a hybrid fiber coaxial (HFC) fiber-to-the-
node system architecture, with Fiber Optic cable deployed from its Headend to nodes and tying
into a coaxial system serving Subscribers. The Cable System is capable of delivering high
quality signals that meet or exceed FCC technical quality standards regardless of any particular
manner in which the signal is transmitted.
(B) Equipment must be installed so that all closed captioning programming received
by the Cable System shall include the closed caption signal so long as the closed caption signal is
provided consistent with FCC standards. Equipment must be installed so that all local signals
received in stereo or with secondary audio tracks (broadcast and Access) are retransmitted in
those same formats.
(C) All construction shall be subject to the City’s permitting process.
(D) Grantee and the City shall meet, at the City’s request, to discuss the progress of
the design plan and construction.
(E) Grantee will take prompt corrective action if it finds that any facilities or
equipment on the Cable System are not operating as expected, or if it finds that facilities and
equipment do not comply with the requirements of this Franchise or Applicable Law.
(F) Grantee’s construction decisions shall be based solely upon legitimate
engineering decisions and shall not take into consideration the income level of any particular
community within the Franchise Area.
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11.2 Standby Power
Grantee’s Cable System Headend shall be capable of providing at least twelve (12) hours
of emergency operation. In addition, throughout the term of this Franchise, Grantee shall have a
plan in place, along with all resources necessary for implementing such plan, for dealing with
outages of more than four (4) hours. This outage plan and evidence of requisite implementation
resources shall be presented to the City no later than thirty (30) days following receipt of a
request.
11.3 Emergency Alert Capability
Grantee shall provide an operating Emergency Alert System (“EAS”) throughout the
term of this Franchise in compliance with FCC standards. Grantee shall test the EAS as required
by the FCC. Upon request, the City shall be permitted to participate in and/or witness the EAS
testing up to twice a year on a schedule formed in consultation with Grantee. If the test indicates
that the EAS is not performing properly, Grantee shall make any necessary adjustment to the
EAS, and the EAS shall be retested.
11.4 Technical Performance
The technical performance of the Cable System shall meet or exceed all applicable
federal (including but not limited to the FCC), State and local technical standards, as they may be
amended from time to time, regardless of the transmission technology utilized. The City shall
have the full authority permitted by Applicable Law to enforce compliance with these technical
standards.
11.5 Cable System Performance Testing
(A) Grantee shall provide to the City a copy of its current written process for
resolving complaints about the quality of the video programming services signals delivered to
Subscriber and shall provide the City with any amendments or modifications to the process at
such time as they are made.
(B) Grantee shall, at Grantee’s expense, maintain all aggregate data of Subscriber
complaints related to the quality of the video programming service signals delivered by Grantee
in the City for a period of at least one (1) year, and individual Subscriber complaints from the
City for a period of at least three (3) years, and make such information available to the City at
Grantee’s office upon reasonable request.
(C) Grantee shall maintain written records of all results of its Cable System tests
performed by or for Grantee. Copies of such test results will be provided to the City upon
reasonable request.
(D) Grantee shall perform any tests required by the FCC.
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11.6 Additional Tests
Where there exists other evidence which in the judgment of the City casts doubt upon the
reliability or technical quality of Cable Service, the City shall have the right and authority to
require Grantee to test, analyze and report on the performance of the Cable System. Grantee
shall fully cooperate with the City in performing such testing and shall prepare the results and a
report, if requested, within thirty (30) days after testing. Such report shall include the following
information:
(A) the nature of the complaint or problem which precipitated the special tests;
(B) the Cable System component tested;
(C) the equipment used and procedures employed in testing;
(D) the method, if any, in which such complaint or problem was resolved; and
(E) any other information pertinent to said tests and analysis which may be required.
SERVICE AVAILABILITY, INTERCONNECTION AND SERVICE SECTION 12.
TO SCHOOLS AND PUBLIC BUILDINGS
12.1 Service Availability
(A) In General. Except as otherwise provided herein, Grantee shall provide Cable
Service within seven (7) days of a request by any Person within the City. For purposes of this
Section, a request shall be deemed made on the date of signing a service agreement, receipt of
funds by Grantee, receipt of a written request by Grantee or receipt by Grantee of a verified
verbal request. Except as otherwise provided herein, Grantee shall provide such service:
(1) With no line extension charge except as specifically authorized elsewhere
in this Franchise Agreement.
(2) At a non-discriminatory installation charge for a standard installation,
consistent with Section 4.3 above consisting of a one hundred twenty five (125) foot drop
from Grantee’s existing cable plant and connecting to an inside wall for Residential
Subscribers, with additional charges for non-standard installations computed according to
a non- discriminatory methodology for such installations;
(3) At non-discriminatory monthly rates for Residential Subscribers consistent
with Section 4.3 above.
(B) Customer Charges for Extension of Service. In lieu of the requirements in the
Municipal Code, Grantee agrees to extend its Cable System to all persons living in areas with a
residential density of thirty-five (35) homes per mile of Cable System plant. If the residential
density is less than thirty-five (35) homes per 5,280 cable-bearing strand feet of trunk or
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distribution cable, service may be made available on the basis of a capital contribution in aid of
construction, including cost of material, labor and easements. For purposes of determining the
amount of capital contribution in aid of construction to be borne by Grantee and potential
customers in the area where service may be expanded, Grantee’s non-discriminatory policy
currently provides that Grantee will contribute a per-home credit for each home passed in any
construction required to reach the home of the requesting potential customer, and such customer
will be responsible for all remaining costs. The credit will be equal to the construction and other
costs to provide service to thirty-five (35) homes per mile, allocated on a per-home basis (the
“Home Credit”). For example, if a potential customer requests service at a home where
construction to that home passes a total of five (5) other homes, the potential requesting customer
will receive six (6) Home Credits and will be responsible for the remaining costs to extend
service to such customer’s home. Grantee will prepare and provide a written estimate of the
extension costs, which shall indicate the portion of costs attributable to both Grantee and the
potential requesting customer. A copy of this written estimate shall be provided to the City upon
request. In the event that Grantee makes changes to its line extension policies, such changes will
be applied on a non-discriminatory basis to potential customers and Subscribers within the
Franchise Area.
(C) Service to Newly Annexed Areas. Grantee shall have the right but not the
obligation to extend the Cable System into any area annexed after the Effective Date of this
Agreement which is not contiguous or is partially contiguous to the present Franchise Area of the
City or to any area that is technically infeasible. Nothing herein shall require Grantee to expand
its Cable System to serve or to offer service to any area annexed by the City if such area is then
served by another Cable Operator.
12.2 Institutional Network and Connection of Public Facilities
(A) Grantee previously provided institutional fiber network (I-Net) services pursuant
to an Institutional Network Maintenance Agreement between Comcast of WA IV, Inc., and the
City of Kent, dated May 4, 2004 (“I-Net Agreement”). Grantee and the City agree to terminate
the current I-Net Agreement as of the Effective Date of this Franchise. In satisfaction of the
City’s request for institutional network capacity pursuant to 47 U.S.C §531(b), the City will enter
into a Dark Fiber Lease Agreement with Comcast Business Communications, LLC, an Affiliate
of Grantee (“Dark Fiber Agreement.”). As the Dark Fiber Agreement is a commerical
arrangement between Comcast Business Communications, LLC and the City, the value of the
fiber lease pursuant to such agreement shall not be part of the Franchise Fee or subject to offset
from the Franchise Fee. Except as expressly provided herein, the terms and conditions of the
Dark Fiber Agreement will govern and supersede any inconsistent terms set forth in this
Franchise. A list of those public buildings included within the scope of the Dark Fiber
Agreement is attached and incorporated as Exhibit A. The term of the Dark Fiber Agreement
shall run coterminous with the term of this Franchise.
(B) Grantee shall at no additional cost to the City provide one (1) outlet of Basic
Service and Digital Starter Service to all existing locations identified on Exhibit B and to City
owned and occupied buildings, schools, fire stations, and public libraries, but excluding any City
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owned jails, located in areas where Grantee provides Cable Service, so long as these facilities are
already served or the interconnection point on these facilities is located within one hundred
twenty five (125) feet of the distribution point on the Cable System from which Cable Service
can be provided to these facilities. For purposes of this subsection, “school” means all State-
accredited K-12 public and private schools. Such obligation to provide free Cable Service shall
not extend to areas of City buildings where Grantee would normally enter into a commercial
contract to provide such Cable Service (e.g., golf courses, airport restaurants and concourses, and
recreation center workout facilities), and such Cable Service shall not be located in public
waiting areas or used to entertain the public, nor shall they be used in a way that violates
copyright laws or carriage license agreements. Outlets of Basic and Digital Starter Service
provided in accordance with this subsection may be used to distribute Cable Services throughout
such buildings; provided such distribution can be accomplished without causing Cable System
disruption and general technical standards are maintained. Such outlets may only be used for
lawful purposes. The Cable Service provided shall not be distributed beyond the originally
installed outlets without authorization from Grantee, which shall not be unreasonably withheld.
(C) The City acknowledges that the provision of one (1) outlet of Basic Service and
Digital Starter Service to all City owned and occupied buildings that are not schools and public
libraries reflects a voluntary initiative on the part of Grantee. Grantee does not waive any rights
it may have regarding complimentary services under federal law or regulation, including without
limitation the ability to claim that the provision of complimentary Cable Service as provided in
subsection (B) is exempt from Section 3.11 of this Franchise Agreement. Subject to Applicable
Law, should Grantee elect to offset governmental complimentary services against Franchise
Fees, Grantee shall first provide the City with ninety (90) days’ prior written notice. The City
likewise reserves all rights it has under Applicable Law.
FRANCHISE VIOLATIONS SECTION 13.
13.1 Procedure for Remedying Franchise Violations
(A) If the City reasonably believes that Grantee has failed to perform any obligation
under this Franchise or has failed to perform in a timely manner, the City shall notify Grantee in
writing, stating with reasonable specificity the nature of the alleged default. Grantee shall have
thirty (30) days from the receipt of such notice to:
(1) respond to the City, contesting the City’s assertion that a default has
occurred, and requesting a meeting in accordance with subsection (B), below;
(2) cure the default; or
(3) notify the City that Grantee cannot cure the default within the thirty (30)
days because of the nature of the default. In the event the default cannot be cured within
thirty (30) days, Grantee shall promptly take all reasonable steps to cure the default and
notify the City in writing and in detail as to the exact steps that will be taken and the
projected completion date. In such case, the City may set a meeting in accordance with
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subsection (B) below to determine whether additional time beyond the thirty (30) days
specified above is indeed needed, and whether Grantee’s proposed completion schedule
and steps are reasonable.
(B) If Grantee does not cure the alleged default within the cure period stated above or
by the projected completion date under subsection (A)(3), or denies the default and requests a
meeting in accordance with subsection (A)(1), or the City orders a meeting in accordance with
subsection (A)(3), the City shall set a meeting to investigate said issues or the existence of the
alleged default. The City shall notify Grantee of the meeting in writing, and such meeting shall
take place no less than thirty (30) days after Grantee’s receipt of notice of the meeting. At the
meeting, Grantee shall be provided an opportunity to be heard and to present evidence in its
defense.
(C) If after the meeting the City determines that a default exists, the City shall order
Grantee to correct or remedy the default or breach within fifteen (15) days or within such other
reasonable timeframe as the City shall determine. In the event Grantee does not cure within such
time to the City’s reasonable satisfaction, the City may:
(1) Withdraw an amount from the Security as monetary damages;
(2) Recommend the revocation of this Franchise pursuant to the procedures in
subsection 13.2; or,
(3) Pursue any other legal or equitable remedy available under this Franchise
or any Applicable Law.
(D) The determination as to whether a violation of this Franchise has occurred shall
be within the discretion of the City, provided that any such final determination may be subject to
appeal to a court of competent jurisdiction under Applicable Law.
13.2 Revocation
(A) In addition to revocation in accordance with other provisions of this Franchise,
the City may revoke this Franchise and rescind all rights and privileges associated with this
Franchise in the following circumstances, each of which represents a material breach of this
Franchise:
(1) If Grantee fails to perform any material obligation under this Franchise or
under any other agreement, ordinance, or document regarding the City and Grantee;
(2) If Grantee willfully fails for more than forty-eight (48) hours to provide
continuous and uninterrupted Cable Service;
(3) If Grantee attempts to evade any material provision of this Franchise or to
practice any fraud or deceit upon the City or Subscribers;
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(4) If Grantee becomes insolvent or if there is an assignment for the benefit of
Grantee’s creditors; or
(5) If Grantee makes a material misrepresentation of fact in the application for
or negotiation of this Franchise.
(B) Following the procedures set forth in subsection 13.1 and prior to forfeiture or
termination of the Franchise, the City shall give written notice to Grantee of its intent to revoke
the Franchise and set a date for a revocation proceeding. The notice shall set forth the exact
nature of the noncompliance.
(C) Any proceeding under the subsection above shall be conducted by the City’s
Hearing Examiner and open to the public. Grantee shall be afforded at least forty-five (45) days’
prior written notice of such proceeding. The Hearing Examiner will conduct the proceeding as
provided for in this section, and the Hearing Examiner will make a recommendation to the City
Council concerning revocation of Grantee’s Franchise.
(1) At such proceeding, Grantee shall be provided a fair opportunity for full
participation including the right to be represented by legal counsel, to introduce evidence,
and to question witnesses. A complete verbatim record and transcript shall be made of
such proceeding, and the cost shall be shared equally between the parties. The City
Council shall hear any Persons interested in the revocation and shall allow Grantee, in
particular, an opportunity to state its position on the matter.
(2) Within forty-five (45) days after the hearing, the Hearing Examiner shall
make its recommendation to the City Council concerning revocation. Within forty-five
(45) days of receiving the Hearing Examiner’s recommendation, the City Council shall
determine whether to revoke the Franchise and declare that the Franchise is revoked and
the letter of credit forfeited. If the City determines that the Franchise is to be revoked,
the City shall set forth the reasons for such a decision and shall transmit a copy of the
decision to Grantee. The City’s decision may provide one final opportunity for Grantee
to avoid revocation by a stated date if the breach at issue is capable of being cured and
Grantee takes appropriate remedial action within the time and in the manner and on the
terms and conditions that the City Council determines are reasonable and appropriate
under the circumstances. Grantee shall be bound by the City’s decision to revoke the
Franchise unless it appeals the decision to a court of competent jurisdiction within fifteen
(15) days of the date of the decision.
(3) Grantee shall be entitled to such relief as the Court may deem appropriate.
(4) The City Council may at its sole discretion take any lawful action that it
deems appropriate to enforce the City’s rights under the Franchise in lieu of revocation of
the Franchise.
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13.3 Procedures in the Event of Termination or Revocation
(A) If this Franchise expires without renewal after completion of all processes
available under this Franchise and federal law or is otherwise lawfully terminated or revoked, the
City shall have the right to require Grantee to remove all or any portion of the System utilized
exclusively for the provision of Cable Services from all Rights-of-Way and public property
within the City and may, subject to Applicable Law:
(1) Allow Grantee to maintain and operate its Cable System on a month-to-
month basis or short-term extension of this Franchise for not less than six (6) months,
unless a sale of the Cable System can be closed sooner or Grantee demonstrates to the
City’s satisfaction that it needs additional time to complete the sale; or
(2) Purchase Grantee’s Cable System in accordance with the procedures set
forth in Section 13.4, below.
(B) In the event that a sale has not been completed in accordance with subsections
(A)(1) and/or (A)(2) above, the City may order the removal of the above-ground Cable System
facilities and such underground facilities from the City at Grantee’s sole expense within a
reasonable period of time, as determined by the City. In removing its plant, structures and
equipment, Grantee shall refill, at its own expense, any excavation that is made by it and shall
leave all Rights-of-Way, public places and private property in as good condition as that
prevailing prior to Grantee’s removal of its equipment without affecting the electrical or
telephone cable wires or attachments. The indemnification and insurance provisions and the
letter of credit shall remain in full force and effect during the period of removal, and Grantee
shall not be entitled to and agrees not to request compensation of any sort therefore.
(C) If Grantee fails to complete to the City’s satisfaction any removal required by
subsection 13.3(B), after written notice to Grantee the City may cause the work to be done, and
Grantee shall reimburse the City for the costs incurred within thirty (30) days after receipt of an
itemized list of the costs, or the City may recover the costs through the letter of credit provided
by Grantee.
(D) The City may seek legal and equitable relief to enforce the provisions of this
Franchise.
13.4 Purchase of Cable System
(A) If at any time this Franchise is revoked, terminated, or not renewed upon
expiration in accordance with the provisions of federal law, the City shall have the option to
purchase the Cable System.
(B) The City may at any time thereafter offer in writing to purchase Grantee’s Cable
System. Grantee shall have thirty (30) days from receipt of a written offer from the City within
which to accept or reject the offer.
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(C) In any case where the City elects to purchase the Cable System, the purchase shall
be closed within one hundred twenty (120) days of the date of the City’s audit of a current profit
and loss statement of Grantee. The City shall pay for the Cable System in cash or certified
funds, and Grantee shall deliver appropriate bills of sale and other instruments of conveyance.
(D) For the purposes of this subsection, the price for the Cable System shall be
determined as follows:
(1) In the case of the expiration of the Franchise without renewal, at fair
market value determined on the basis of Grantee’s Cable System valued as a going
concern but with no value allocated to the Franchise itself. In order to obtain the fair
market value, this valuation shall be reduced by the amount of any lien, encumbrance, or
other obligation of Grantee which the City would assume.
(2) In the case of revocation for cause, the equitable price of Grantee’s Cable
System.
13.5 Receivership and Foreclosure
(A) At the option of the City, subject to Applicable Law, this Franchise may be
revoked one hundred twenty (120) days after the appointment of a receiver or trustee to take over
and conduct the business of Grantee whether in a receivership, reorganization, bankruptcy or
other action or proceeding, unless:
(1) The receivership or trusteeship is vacated within one hundred twenty (120)
days of appointment; or
The receivers or trustees have, within one hundred twenty (120) days after their election
or appointment, fully complied with all the terms and provisions of this Franchise, and have
remedied all defaults under the Franchise. Additionally, the receivers or trustees shall have
executed an agreement duly approved by the court having jurisdiction by which the receivers or
trustees assume and agree to be bound by each and every term, provision and limitation of this
Franchise.
(B) If there is a foreclosure or other involuntary sale of the whole or any part of the
plant, property and equipment of Grantee, the City may serve notice of revocation on Grantee
and to the purchaser at the sale, and the rights and privileges of Grantee under this Franchise
shall be revoked thirty (30) days after service of such notice unless:
(1) The City has approved the transfer of the Franchise, in accordance with
the procedures set forth in this Franchise and as provided by law; and
(2) The purchaser has covenanted and agreed with the City to assume and be
bound by all of the terms and conditions of this Franchise.
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13.6 No Monetary Recourse Against the City
Grantee shall not have any monetary recourse against the City or its officers, officials,
boards, commissions, agents or employees for any loss, costs, expenses, or damages arising out
of any provision or requirement of this Franchise or the enforcement thereof, in accordance with
the provisions of applicable federal, State, and local law. The rights of the City under this
Franchise are in addition to and shall not be read to limit any immunities the City may enjoy
under federal, State, or local law.
13.7 Alternative Remedies
No provision of this Franchise shall be deemed to bar the right of the City to seek or
obtain judicial relief from a violation of any provision of the Franchise or any rule, regulation,
requirement or directive promulgated thereunder. 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 the City to recover monetary damages for such violations by Grantee, or to seek and
obtain judicial enforcement of Grantee’s obligations by means of specific performance,
injunctive relief or mandate or any other remedy at law or in equity.
13.8 Assessment of Monetary Damages
(A) The City may assess against Grantee monetary damages (i) up to five hundred
dollars ($500) per day for general construction delays not otherwise addressed in this Franchise,
violations of PEG obligations or payment obligations, (ii) up to two hundred fifty dollars ($250)
per day for any other material breaches, or (iii) up to one hundred dollars ($100) per day for
defaults, and collect the assessment as specified in this Franchise. Damages pursuant to this
Section shall accrue for a period not to exceed one hundred twenty (120) days per violation
proceeding. Such damages shall accrue beginning thirty (30) days following Grantee’s receipt of
the notice required by Section 13.1(A), or such later date if approved by the City in its sole
discretion, but may not be assessed until after the procedures in Section 13.1 have been
completed. To assess any amount from the letter of credit, the City shall follow the procedures
for withdrawals from the letter of credit set forth in the letter of credit and in this Franchise,
which procedures have been approved by the City under Section 5.4.
(B) The assessment does not constitute a waiver by the City of any other right or
remedy it may have under the Franchise or Applicable Law to recover from Grantee any
additional damages, losses, costs, and expenses that are incurred by the City by reason of the
breach of this Franchise.
13.9 Effect of Abandonment
If Grantee abandons its Cable System during the Franchise term or fails to operate its
Cable System in accordance with its duty to provide continuous service, the City, at its option,
may operate the Cable System; designate another entity to operate the Cable System temporarily
until Grantee restores service under conditions acceptable to the City, or until the Franchise is
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revoked and a new franchisee is selected by the City; or obtain an injunction requiring Grantee to
continue operations. If the City is required to operate or designate another entity to operate the
Cable System, Grantee shall reimburse the City or its designee for all reasonable costs, expenses,
and damages incurred.
13.10 What Constitutes Abandonment
The City shall be entitled to exercise its options in subsection 13.9 if:
(A) Grantee fails to provide Cable Service in accordance with this Franchise over a
substantial portion of the Franchise Area for four (4) consecutive days, unless the City authorizes
a longer interruption of service; or
(B) Grantee, for any period, willfully and without cause refuses to provide Cable
Service in accordance with this Franchise.
FRANCHISE RENEWAL AND TRANSFER SECTION 14.
14.1 Renewal
(A) The City and Grantee agree that any proceedings undertaken by the City that
relate to the renewal of the Franchise shall be governed by and comply with the provisions of
Section 626 of the Cable Act, unless the procedures and substantive protections set forth therein
shall be deemed to be preempted and superseded by the provisions of any subsequent provision
of federal or State law.
(B) In addition to the procedures set forth in said Section 626(a), the City agrees to
notify Grantee of the completion of its assessments regarding the identification of future cable-
related community needs and interests, as well as the past performance of Grantee under the then
current Franchise term. Notwithstanding anything to the contrary set forth herein, Grantee and
the City agree that at any time during the term of the then current Franchise, while affording the
public adequate notice and opportunity for comment, the City and Grantee may agree to
undertake and finalize negotiations regarding renewal of the then current Franchise and the City
may grant a renewal thereof. Grantee and the City consider the terms set forth in this subsection
to be consistent with the express provisions of Section 626 of the Cable Act.
(C) Should the Franchise expire without a mutually agreed upon renewed Franchise
Agreement and Grantee and City are engaged in an informal or formal renewal process, the
Franchise shall continue on a month-to-month basis with the same terms and conditions as
provided in the Franchise, and Grantee and City shall continue to comply with all obligations and
duties under the Franchise until final City action is taken to renew or terminate the Franchise
pursuant to this Franchise and Applicable Law and all appeals are resolved.
8.a
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14.2 Transfer of Ownership or Control
(A) The Cable System and this Franchise shall not be sold, assigned, transferred,
leased, or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale,
merger, or consolidation, nor shall title thereto, either legal or equitable, or any right, interest, or
property therein pass to or vest in any Person or entity without the prior written consent of the
City, which consent shall be by the City Council, acting by ordinance/resolution.
(B) Grantee shall promptly notify the City of any actual or proposed change in, or
transfer of, or acquisition by any other party of control of Grantee. The word “control” as used
herein is not limited to majority stockholders but includes actual working control in whatever
manner exercised. Every change, transfer or acquisition of control of Grantee shall make this
Franchise subject to cancellation unless and until the City shall have consented in writing
thereto.
(C) The parties to the sale or transfer shall make a written request to the City for its
approval of a sale or transfer and furnish all information required by law and the City.
(D) In seeking the City’s consent to any change in ownership or control, the proposed
transferee shall indicate whether it:
(1) Has ever been convicted or held liable for acts involving deceit including
any violation of federal, State or local law or regulations, or is currently under an
indictment, investigation or complaint charging such acts;
(2) Has ever had a judgment in an action for fraud, deceit, or
misrepresentation entered against the proposed transferee by any court of competent
jurisdiction;
(3) Has pending any material legal claim, lawsuit, or administrative
proceeding arising out of or involving a cable system or a broadband system;
(4) Is financially solvent, by submitting financial data including financial
statements that are audited by a certified public accountant who may also be an officer of
the transferee; and
(5) Has the financial, legal and technical capability to enable it to maintain
and operate the Cable System for the remaining term of the Franchise.
(E) The City shall act by ordinance on the request within one hundred twenty (120)
days of the request, provided it has received all information required by this Franchise and/or by
Applicable Law. The City and Grantee may by mutual agreement at any time extend the 120-
day period. Subject to the foregoing, if the City fails to render a final decision on the request
within one hundred twenty (120) days, such request shall be deemed granted unless the
requesting party and the City agree to an extension of time.
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(F) Within thirty (30) days of any transfer or sale, if approved or deemed granted by
the City, Grantee shall file with the City a copy of the deed, agreement, lease or other written
instrument evidencing such sale or transfer of ownership or control, certified and sworn to as
correct by Grantee and the transferee, and the transferee shall file its written acceptance agreeing
to be bound by all of the provisions of this Franchise, subject to Applicable Law. In the event of
a change in control in which Grantee is not replaced by another entity, Grantee will continue to
be bound by all of the provisions of the Franchise, subject to Applicable Law, and will not be
required to file an additional written acceptance.
(G) In reviewing a request for sale or transfer, the City may inquire into the legal,
technical and financial qualifications of the prospective controlling party or transferee, and
Grantee shall assist the City in so inquiring. The City may condition said sale or transfer upon
such terms and conditions as it deems reasonably appropriate, in accordance with Applicable
Law.
(H) Notwithstanding anything to the contrary in this subsection, the prior approval of
the City shall not be required for any sale, assignment or transfer of the Franchise or Cable
System to an entity controlling, controlled by or under the same common control as Grantee,
provided that the proposed assignee or transferee must show financial responsibility as may be
determined necessary by the City and must agree in writing to comply with all of the provisions
of the Franchise. Further, Grantee may pledge the assets of the Cable System for the purpose of
financing without the consent of the City; provided that such pledge of assets shall not impair or
mitigate Grantee’s responsibilities and capabilities to meet all of its obligations under the
provisions of this Franchise.
SEVERABILITY SECTION 15.
If any Section, subsection, paragraph, term or provision of this Franchise is determined to
be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such
determination shall have no effect on the validity of any other Section, subsection, paragraph,
term or provision of this Franchise, all of which will remain in full force and effect for the term
of the Franchise.
MISCELLANEOUS PROVISIONS SECTION 16.
16.1 Preferential or Discriminatory Practices Prohibited
In connection with the performance of work under this Franchise, Grantee agrees not to
refuse to hire, discharge, promote or demote, or discriminate in matters of compensation against
any Person otherwise qualified solely because of race, color, religion, national origin, gender,
age, military status, sexual orientation, marital status, or physical or mental disability; and
Grantee further agrees to insert the foregoing provision in all subcontracts hereunder.
Throughout the term of this Franchise, Grantee shall fully comply with all equal employment or
non-discrimination provisions and requirements of federal, State and local laws and, in
particular, FCC rules and regulations relating thereto.
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City of Kent - Comcast
2019 Franchise Agreement
4846-1929-7154v.4 0101080-000007
16.2 Notices
Throughout the term of the Franchise, each party shall maintain and file with the other a
local address for the service of notices by mail. All notices shall be sent via overnight delivery
postage prepaid to such respective address, and such notices shall be effective upon the date of
mailing. These addresses may be changed by the City or Grantee by written notice at any time.
At the Effective Date of this Franchise:
Grantee’s address shall be:
Comcast Cable Communications Management, LLC
4020 Auburn Way N
Auburn, WA 98002
Attention: Franchise Director
With a copy to:
Comcast Cable Communications Management, LLC
15815 25th Ave W
Lynnwood, WA 98087
Attention: Franchising Department
The City’s address shall be:
City of Kent
220 Fourth Ave S
Kent, WA 98032
Attention: Chief Administrative Officer
With a copy to:
City of Kent
220 Fourth Ave S
Kent, WA 98032
Attention: City Attorney
16.3 Descriptive Headings
The headings and titles of the Sections and subsections of this Franchise are for reference
purposes only and shall not affect the meaning or interpretation of the text herein.
16.4 Publication Costs to be Borne by Grantee
Grantee shall reimburse the City for all costs incurred in publishing this Franchise, if
such publication is required.
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City of Kent - Comcast
2019 Franchise Agreement
4846-1929-7154v.4 0101080-000007
16.5 Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted successors and
assigns.
16.6 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent relationship
between the parties, and neither party is authorized to nor shall either party act toward third
Persons or the public in any manner which would indicate any such relationship with the other.
16.7 Waiver
The failure of the City at any time to require performance by Grantee of any provision
hereof shall in no way affect the right of the City hereafter to enforce the same. Nor shall the
waiver by the City of any breach of any provision hereof be taken or held to be a waiver of any
succeeding breach of such provision, or as a waiver of the provision itself or any other provision.
16.8 Challenges to City Ordinances
Grantee reserves all rights it may have to challenge the lawfulness of any City ordinance.
The City reserves all of its rights and defenses to such challenges.
16.9 Reasonableness of Consent or Approval
Whenever under this Franchise “reasonableness” is the standard for the granting or denial
of the consent or approval of either party hereto, such party shall be entitled to consider public
and governmental policy, moral and ethical standards as well as business and economic
considerations.
16.10 Entire Agreement
This Franchise and all Exhibits represent the entire understanding and agreement between
the parties hereto with respect to the subject matter hereof and supersede all prior oral
negotiations between the parties.
16.11 Jurisdiction
Venue for any judicial dispute between the City and Grantee arising under or out of this
Franchise shall be in King County Superior Court, Washington, or in the United States District
Court in Seattle.
IN WITNESS WHEREOF, this Franchise is signed in the name of the City of Kent,
Washington this day of , 2019.
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City of Kent - Comcast
2019 Franchise Agreement
4846-1929-7154v.4 0101080-000007
ATTEST: CITY OF KENT, WASHINGTON:
City Clerk Mayor
APPROVED AS TO FORM:
City Attorney
Accepted and approved this _____ day of _________, 2019.
ATTEST: COMCAST __________________________
Public Notary
Name/Title: ______________________________
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For Informal Discussion Only. Proprietary and Confidential
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4846-1929-7154v.4 0101080-000007
EXHIBIT A
DARK FIBER LOCATIONS
Kent Shops 5821 S 240th St
Correction Facility 1230 S Central St
Kent City Hall 220 4th Ave S
Kent Commons 525 4th Ave N
Resource Center 315 E Meeker St
Senior Center 600 E Smith
Valley Communications 27519 108th Ave SE
Riverbend 18th Hole 2019 E Meeker St
Future Maintenance Shops SE 248th & 124th Ave SE
Fire Station #74 24611 116th Ave SE
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EXHIBIT B
LOCATIONS RECEIVING COMPLIMENTARY CABLE SERVICE
NAME ADDRESS Account
Type
CITY OF KENT CORRECTIONS,* 1230 S CENTRAL AVE City
CITY OF KENT CORR., EQUIP 1 1230 S CENTRAL AVE City
KENT, CITY OF 220 4TH AVE S City
KENT CITY HALL, EQUIP 1 220 4TH AVE S City
KENT PD,VIDEO 220 4TH AVE S CITY
KENT POLICE DEPARTMENT,* 232 4TH AVE S City
KENT POLICE DEPT, EQUIP 1 232 4TH AVE S City
VALLEY COMM CTR, EQUIP 1 27519 108TH AVE SE City
CITY OF KENT CENTENNIAL,* 400 W GOWE ST City
CITY OF KENT CENT, EQUIP 1 400 W GOWE ST City
PUBLIC WORKS, CITY OF KENT 5821 S 240TH ST City
SENIOR CENTER 600 E. SMITH City
REG JUSTICE CTR, KING CTY 620 W JAMES ST City
REGIONAL JUSTICE CTR, EQ 1 620 W JAMES ST City
MRJC OFFICE,* 401 4TH AVE N City/King
County
VIEW FIRE & RESC, MOUNTAIN 18610 SE COVINGTON SAWYER Fire
FS 77, EQUIP 1 20717 132ND AVE SE Fire
FIRE STATION 74, KENT 24611 116TH AVE SE Fire
FS 74, EQUIP 1 24611 116TH AVE SE Fire
FS 71, EQUIP 1 504 W CROW ST Fire
KENT-MERIDIAN HS, EQUIP 1 10020 SE 256TH ST School
KENT PHOENIX, EQUIP 1 11000 SE 264TH ST School
DANIEL ELMNTRY, EQUIP 1 11310 SE 248TH ST School
EMERALD PARK ELM, EQUIP 1 11800 SE 216TH ST School
MILLENIUM ELMNTRY, EQUIP 1 11919 SE 270TH ST School
KENT SCHOOL DISTRICT,* 12033 SE 256TH ST School
HI-SCHOOL, KENTRDGE 12430 SE 208TH ST School
SOOS CREEK ELMNTRY,EQUIP 1 12651 SE 218TH PL School
MARTIN SOTRUN ELM, EQUIP 1 12711 SE 248TH ST School
GLENRIDGE ELMNTRY, EQUIP 1 19405 120TH AVE SE School
LAKE YOUNGS ELM, EQUIP 1 19660 142ND AVE SE School
SPRINGBROOK, ELEMNTRY 20035 100TH AVE SE School
SPRINGBROOK ELM, EQUIP 1 20035 100TH AVE SE School
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NAME ADDRESS Account
Type
PANTHER LAKE ELM, EQUIP 1 20831 108TH AVE SE School
HIGH SCHOOL, KENTLAKE 21401 SE FALCON WAY School
KENTLAKE HS, EQUIP 1 21401 SE FALCON WAY School
ELEMENTARY, SUNRISE 22300 132ND AVE SE School
MERIDIAN ELMNTRY, EQUIP 1 25621 140TH AVE SE School
SCENIC HILL ELM, EQUIP 1 26025 WOODLAND WAY S School
ELEMENTARY, HORIZON 27641 144TH AVE SE School
MEADOWRIDGE ELM, EQUIP 1 27710 108TH AVE SE School
PINE TREE ELMNTRY, EQUIP 1 27825 118TH AVE SE School
GRASS LAKE ELM, EQUIP 1 28700 191ST PL SE School
KENT ELEMENTARY, EQUIP 1 317 4TH AVE S School
MILL CREEK MS, EQUIP 1 620 CENTRAL AVE N School
ELEMENTARY, E HILL 9825 S 240TH ST School
EAST HILL ELMNTRY, EQUIP 1 9825 S 240TH ST School
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4829-1677-0180v.3 0101080-000007
SETTLEMENT AGREEMENT
This Agreement is made and entered into this __ day of ______________ , 2019 by and
between the City of Kent, WA ("the City"), and Comcast Cable Communications Management,
LLC, and their affiliates and subsidiaries, (herein referred to individually and collectively,
"Comcast").
RECITALS.
This Agreement is made expressly with reference to the following agreed facts, among
others:
A. In May 1993, the City granted TCI Cablevision of Washington, Inc. (“TCI”) a
cable television franchise (Franchise”) for a period of 15 years, which required TCI to provide an
institutional network (“I-Net”) linking certain City buildings.
B. Following Comcast’s acquisition of TCI in 2002, the I-Net was ultimately
completed by Comcast. In May 2004, Comcast and the City entered into the Institutional
Network Maintenance Agreement (“Maintenance Agreement”), which granted the City “an
indefatigable, exclusive right of use” of the I-Net during the term of the Franchise or any
renewals.
C. The Maintenance Agreement required Comcast to invoice the City an annual
maintenance fee (“Maintenance Fee”), which invoice the City was to pay within ninety (90) days
of receipt. Comcast sent one invoice to the City on or around April 3, 2008, for the prior 3 year
period. A dispute arose between the City and Comcast regarding payment under this invoice and
future invoices, which resulted in the City not paying this invoice and in Comcast not invoicing
the City for any further Maintenance Fee with the understanding that the dispute would be
resolved in the context of the Franchise renewal proceeding.
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D. The City and Comcast continue to disagree concerning their respective
obligations under the Maintenance Agreement and what effect each party’s failure to act has on
its respective interests and ability to enforce or evade the Maintenance Agreement’s terms.
E. The City and Comcast have been in negotiations since August 2017 to renew the
Franchise, which renewal franchise is anticipated to be first introduced to the City Council in
January of 2019 and submitted for approval in February of 2019 (“Renewal Franchise”). In
settlement of the parties’ dispute concerning the Maintenance Agreement, the parties have
agreed to terminate the Maintenance Agreement as of the Effective Date of the Renewal
Franchise, subject to the terms of this Settlement Agreement, which terms include the execution
of a new Dark Fiber Agreement with Comcast Business Communications, LLC, an Affiliate of
Comcast (“Dark Fiber Agreement”) for a ten year term, and Comcast’s waiver of a majority of
the maintenance fees that may have accrued under the Maintenance Agreement.
F. A standard term of the Dark Fiber Agreement would require the City to pay an
early termination fee if it were to elect to terminate the Dark Fiber Agreement prior to the
expiration of its ten-year term. The City opposes this termination fee, and in settlement of the
parties’ dispute concerning the Maintenance Agreement, the parties have agreed to waive the
early termination fee in the Dark Fiber Agreement. Should the City terminate the Dark Fiber
Agreement before the ten-year term has expired, the PEG fee shall be adjusted as set forth in
Section 9.5 of the Renewal Franchise.
G. The City and Comcast now desire to settle, release and discharge all claims
arising out of their respective obligations under the Maintenance Agreement.
NOW, THEREFORE, Comcast and the City, in consideration of the foregoing, and in
consideration of the mutual promises and obligations hereinafter set forth, and for good and
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valuable mutual consideration, the receipt and sufficiency of which is hereby acknowledged,
agree as follows:
1. Agreement
This Settlement Agreement is entered into in compromise of disputed claims and rights.
Specifically, the City and Comcast desire to compromise, settle and discharge all disputes,
claims, demands, actions or causes of action whatsoever of every kind and nature that pertain to,
or arise out of, each party’s obligations under the Maintenance Agreement, including Comcast’s
obligation to continue performance of the Maintenance Agreement in any renewal franchise and
the City’s obligation to pay the Maintenance Fee (“Claims”). Each party, therefore, hereby
forever discharges and mutually releases the other party, including the other party's agents,
employees, officers, and assigns of and from any and all claims, demands, rights, liability, suits,
debts, liens, actions and causes of action, of every kind and nature whatsoever, at law or in
equity, known and unknown, suspected and unsuspected, disclosed and undisclosed which the
releasing party ever had, now has or hereafter may have by reason of any act, omission, matter,
cause or thing, arising out of the Claims. It is understood and agreed that this is a compromise of
disputed claims and shall not be construed as an admission of any liability of either releasing
party to the other.
2. Maintenance Agreement.
In full settlement of all Claims, the City agrees to pay Comcast, within sixty (60) days of
the Effective Date of the Renewal Franchise, the amounts due under the Maintenance Agreement
for the period from August 2017 through December 2018 in the amount of thirty thousand one
hundred forty one ($30,141) dollars. Comcast agrees to waive all claims to and forever release
the City from the amounts claimed due by Comcast under the Maintenance Agreement that were
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4829-1677-0180v.3 0101080-000007
unpaid prior to August 1, 2017 in the amount of two hundred sixty six thousand seven hundred
forty three dollars ($266,743). The Maintenance Agreement will be terminated as of the
Effective Date of the Renewal Franchise and the Dark Fiber Agreement.
3. Dark Fiber Agreement.
The City agrees to enter into the Dark Fiber Agreement with Comcast Business
Communications, LLC, an affiliate of Comcast. Although the fiber currently serving the schools
and fire districts is not included in the Dark Fiber Agreement, Comcast agrees to continue
providing the existing fiber to the schools and the fire districts for a period of one (1) year after
the Effective Date of the Renewal Franchise. So long as the Kent School District and Comcast
continue to negotiate an appropriate transition plan in good faith (including, but not limited to,
timely application by the District for Federal Universal Schools and Libraries (e-rate) funding),
the one-year period may be extended to a period not more than twenty-four (24) months from the
Effective Date of the Renewal Franchise, upon written request by the City or the Kent School
District. Comcast further agrees to provide, pursuant to a separate ten (10) year agreement, the
same terms and conditions, including the pricing, to the schools and fire districts as are provided
to the City in the Dark Fiber Agreement. Use of the existing fibers to the schools and fire district
will continue until separate agreements are reached or the one-year date for the Fire District and
the one-year (or twenty-four month) date for the Kent School District, whichever date is earliest.
Comcast agrees that should the City elect to terminate the Dark Fiber Agreement prior to the
expiration of its term, the City shall be excused from payment of the early termination fee set
forth in Section 6.1 of the Dark Fiber Agreement. Should the City elect to terminate the Dark
Fiber Agreement prior to its expiration, the City and Comcast agree that the PEG Fee shall be
reduced as set forth in Section 9.5 of the Renewal Franchise.
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4829-1677-0180v.3 0101080-000007
Fiber lease pricing shall be as set forth in Schedule A to the Dark Fiber Agreement. For
additional fibers requested under Section 1.4 of the Dark Fiber Agreement, the monthly price
shall not exceed two hundred fifty six dollars ($256.00) per pair.
4. Attorney's and Consultants’ Fees and Costs.
Comcast and the City shall each bear their own attorneys' and consultants' fees and costs
in the negotiation and settlement of the Maintenance Agreement.
5. Explained by Counsel and No Coercion.
Comcast and the City each acknowledge, covenant, and warrant that the contents of this
Agreement have been explained to each of them by their counsel, that they are each free from
any duress or coercion, economic or otherwise in connection with this matter, and that this
Agreement is executed voluntarily and with full knowledge of its significance.
6. Entire Agreement.
This Agreement constitutes the entire agreement among the parties regarding the subject
matter of this Agreement. No statements, promises, or inducements inconsistent with this
Agreement made by any party shall be valid or binding, unless in writing and executed by all
parties. This Agreement may only be modified by written amendments hereto signed by both
parties.
7. Governing Law.
This Agreement shall be interpreted, governed by, and construed under the laws of the
State of Washington. Jurisdiction of any disputes hereunder shall be had in King County,
Washington.
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4829-1677-0180v.3 0101080-000007
8. Construction of Agreement.
This Agreement is the product of negotiation and preparation by and among parties
represented by counsel. Both sides and their counsel have reviewed and have had the opportunity
to revise this Agreement. The parties waive any rule of construction to the effect that ambiguities
are to be resolved against the drafting party, and the parties warrant and agree that the language
of this Agreement shall neither be construed for nor against any party hereto.
9. Modification.
No modification or change to this Agreement shall be binding or effective unless
executed in writing by both sides. No oral statement shall in any manner modify or affect the
terms and conditions set forth herein.
10. Nonwaiver.
The waiver by either party of any breach of any term, covenant or condition contained in
this Agreement, or any default in the performance of any obligation under this Agreement, shall
not be deemed to be a waiver of any other breach or default of the same or any other term,
covenant, condition or obligation. Nor shall any waiver of any incident of breach or default
constitute a continuing waiver of the same.
11. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
12. Effective Date
This Agreement shall go into effect as of the Effective Date of the Renewal Franchise as
set forth in Section 2.3 thereof.
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4829-1677-0180v.3 0101080-000007
13. Authorization.
Each person executing this Agreement warrants to the other party that he or she is fully
authorized to enter into this Agreement in the City indicated by his or her signature.
COMCAST CABLE COMMUNICATIONS
MANAGEMENT, LLC,
By: ____________________________
Its: ____________________________
CITY OF KENT, WASHINGTON
By: ____________________________
Its: ____________________________
Dated: __________________________
8.a
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Page 1 of 6
CONFIDENTIAL and PROPRIETARY
rcv. 10.10.17
Comcast Business Communications, LLC
Dark Fiber Lease Agreement
This Dark Fiber Lease Agreement (“Agreement”) is made on the ____ day of ________________, 2019 (“Effective
Date”) by and between Comcast Business Communications, LLC (“Company” or “Comcast”) with offices located
at 1701 JFK Blvd Philadelphia, PA 19103 and City of Kent (“Customer” or City), with offices located at 220 4th
Ave Kent, WA 98032. Herein, the above shall be collectively referred to as the “Parties” and individually as
“Party”.
Description of Facilities (“Facilities”) to be provided by Company to Customer:
Dark fiber strands as set forth in Schedule A attached hereto.
Agreement Number: WA-KDhil-110618-01
Term of Agreement (months): One-Hundred and Twenty (120)
Non-Recurring Charges (“NRC”): $0.00
Total Monthly Recurring Charges (exclusive of applicable taxes, surcharges, fees and/or payment obligations, as
set forth in the Agreement) (“MRC”):
Month(s) One (1) through Twelve (12) = $1,727.08
Month(s) Thirteen (13) through Twenty-Four (24) = $3,993.00
Month(s) Twenty-Five (25) through One-Hundred-Twenty (120) = $7,986.00
Number of Sites: Ten (10) Facility Availability Date: TBD
Notes / Comments:
Sales Person: Karen Dhillon Telephone Number: (253) 864-4671
General Manager: Chris Prekopa Telephone Number: (720) 357-3264
Customer Contact: Galen Hirschi Telephone Number: (253) 856-4614
This Agreement sets forth the terms and conditions under which Comcast will provide the Facilities identified
above to Customer. This Agreement consists of this document (“Cover Page”), the standard General Terms and
Conditions attached hereto (“General Terms and Conditions”), and Schedule A, and any jointly executed
amendments (“Amendments”), collectively referred to as the “Agreement.” In the event of any inconsistency
among these documents, precedence will be as follows: (1) Amendments, (2) General Terms and Conditions, (3)
this Cover Page, and (4) Schedules. This Agreement shall commence and become a legally binding agreement upon
mutual execution of this Cover Page by the Parties. The Agreement shall terminate as set forth in the General
Terms and Conditions. All capitalized terms not defined on this Cover Page shall have the definitions given to them
in the General Terms and Conditions.
All modifications to the Agreement, if any, must be captured in a written Amendment, executed by an authorized
Comcast Vice President and the Customer. All other attempts to modify the Agreement shall be void and non-
binding on Comcast.
By signing below, the Parties agree and accept the terms and conditions of this Agreement.
City of Kent Comcast Business Communications, LLC
Signature: Signature:
Printed Name: Printed Name:
Title: Title:
Date: Date:
8.a
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CONFIDENTIAL and PROPRIETARY
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GENERAL TERMS AND CONDITIONS
SECTION 1 - SCOPE
1.1 Company will lease to Customer the strands of Company’s
multi-strand single mode fiber-optic cable (the “Facilities,” which
may be referenced herein as the “Services,” but no service other than
the provision and maintenance of these Facilities is provided under
this agreement), which strands shall originate at the points and
terminate to the Customer “Buildings” and at the prices as set forth,
in each case, in the attached Schedule A attached hereto. These
strands and all related facilities and equipment are hereinafter
referred to as the “Facilities.” Customer agrees that it will light and
immediately use all strands for its broadband needs. The Facilities
are provisioned into each Building at the point of interconnection
between the Comcast-owned Facilities and Customer’s provided
equipment located at Customer’s Building (“Demarcation Point”).
1.2 The Facilities do not include connection to the public
switched network, building wire, any Local Area Networks
(“LANs”), Customer Premise Equipment (“CPE”), IP addressing
capability, firewalls or any other equipment, electronics, or wiring
required on the Customer’s side of the Demarcation Point.
1.3 Subject to Section 1.4, upon the request of Customer,
Company will consider providing other facilities or services to
Customer at terms, conditions, and prices to be mutually agreed upon
in writing between the Parties.
1.4 The Parties acknowledge and agree that certain of the
Company’s existing multi-strand single mode fiber-optic cabling
terminating at the Buildings is not included in the Facilities (the
“Existing Out-of-Scope Fiber”). Notwithstanding anything to the
contrary contained in Section 1.3, if Customer requests, in writing,
that any such Existing Out-of-Scope Fiber be included within the
scope of the Facilities being leased to Customer, the Parties shall
amend Schedule A to include such fiber-optic strands. The additional
MRC that shall be owed by Customer for such additional fiber-optic
cable, shall be as set forth on Schedule A.
SECTION 2 - INSTALLATION
2.1 Customer, at no cost to Company, shall secure throughout
the Term any easements, leases or other agreements necessary to
allow Company to use existing pathways into and in each Building to
the Demarcation Point.
2.2 Subject to the terms of this Agreement, and at no cost to
Company, Customer shall provide adequate environmentally
controlled space and electricity required for installation, operation,
and maintenance of the Facilities within each Building.
2.3 Company and its employees, agents, lessees, officers and
its authorized vendors will require free ingress and egress into and
out of the Buildings in connection with the provision of the Facilities.
Upon reasonable notice from Company, Customer shall assist
Company in accessing each Building.
2.4 If the presence of asbestos or other hazardous materials
exists or is detected, Customer must have such hazardous materials
removed immediately at Customer’s expense or notify Company to
install the applicable portion of the Facilities in areas of any such
Building not containing such hazardous material. Any additional
expense incurred as a result of encountering hazardous materials,
including but not limited to, any additional equipment shall be borne
by Customer.
2.5 Company shall have no obligation to install, operate, or
maintain Customer-provided facilities or equipment.
2.6 Customer shall be responsible for providing maintenance,
repair, operation and replacement of all wire, cable facilities on the
Customer’s side of the Demarcation Point. Any CPE and wiring that
Customer uses in connection with the Facilities shall be compatible
with Comcast’s other facilities, equipment, and services provided to
itself or any other party (the “Network”).
2.7 Customer shall use reasonable efforts to maintain its
property and Buildings in a manner that preserves the integrity of the
Facilities and shall promptly notify Company of any event that
affects such integrity including but not limited to damage to the
Facilities or Network.
2.8 At such time as Company completes installation and
connection of the Facilities and equipment, Company shall then
notify Customer in writing that the Facilities are available for use and
the date of such notice shall be the “Service Date.” The current notice
form is called the “Customer Site Service Acceptance Document”
(“Acceptance Form”). Company may update, modify or replace the
service notification form from time to time without notice to
Customer.
2.9 Any other failure or refusal on the part of Customer to be
ready to receive the Facilities shall not relieve Customer of its
obligation to pay charges for any Facilities that would otherwise be
available for use. For the avoidance of doubt, Customer shall not be
obligated to pay charges for Existing Out-of-Scope Fiber unless, and
until, any such Exisitng Out-of-Scope Fiber is, in accordance with
Section 1.4, included in the Facilities being leased to Customer under
this Agreement.
2.10 Customer-Provided Equipment (CPE). Company shall
have no obligation to install, operate, or maintain CPE. Customer
alone shall be responsible for providing maintenance, repair,
operation and replacement of all inside telephone wiring and
equipment and facilities on the Customer’s side of the Demarcation
Point. All CPE and wiring that Customer uses in connection with the
Facilities must be fully compatible with the Facilities. Customer
shall be responsible for the payment of all charges for
troubleshooting, maintenance or repairs attempted or performed by
Company’s employees or authorized contractors when the difficulty
or trouble report results from CPE.
2.11 Neither the Company, nor any of its affiliates, agents or
contractors shall install any equipment or take any other action to
enable the ability to capture, monitor bandwidth usage, analyze or
otherwise interpret the Customer’s network traffic or its operations
and use of the Facilities.
SECTION 3 - OWNERSHIP, IMPAIRMENT, AND REMOVAL
OF THE FACILITIES
3.1 The Facilities and all other portions of the Network are and
shall remain the property of Company regardless of whether installed
between, within or upon the Buildings and whether installed
overhead, above, or underground and shall not be considered a fixture
or an addition to the land or the Buildings located thereon. Customer
agrees that it shall take no action that directly or indirectly impairs
Company’s title to the Facilities or Network, or exposes Company or
the Facilities, Network, or any Company-provided equipment, or on
the rights or title relating thereto, or any interest therein, to any claim,
lien, encumbrance, or legal process, except as otherwise agreed in
writing by the Parties, and Company will promptly at its own expense
take all actions necessary to remedy any violation of this provision.
3.2 Upon expiration or termination of this Agreement,
Company retains the right to remove the Facilities or Network
including, but not limited to, those portions that are located in the
Buildings. To the extent Company removes such portion of the
8.a
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Page 3 of 6
CONFIDENTIAL and PROPRIETARY
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Network; it shall be responsible for returning the Buildings to their
prior condition, reasonable wear and tear excepted.
3.3 In accordance with the Federal Communications
Commission’s Order in FCC 99-216, released August 11, 1999, the
Parties agree to the terms set forth in this section. All equipment
located on Customer's premises installed or provided under this
Agreement by Company is an integral component of the Facilities
provided by Company and will only be used in connection therewith.
All right, title, and interest in the Facilities and any other equipment
or facility provided by Company shall, at all times, remain
exclusively with the Company, shall not become a fixture to
Customer's premises, and must be returned to Company at the
conclusion of the Term (unless a new similar agreement has been
executed or is being actively negotiated by both parties) in the
condition in which it was received, subject to ordinary wear and tear.
Upon expiration or termination of this Agreement, all rights of
Customer to the Facilities shall cease and Company may, at its
option, disconnect, terminate, remove or use the Facilities for any
other purpose. Company may use such equipment and it’s Network
in any lawful manner, including supporting its network or providing
service to other customers and Customer will not sell, lease, assign
nor encumber any equipment provided by Company to Customer
under this Agreement. Company does not provide any option to
Customer to purchase any such equipment. Customer agrees not to
interfere with other customers' use of the Company services or
equipment, including any Company equipment located on Customer's
premises. Customer acknowledges that its internal communications
systems, such as a Local Area Network ("LAN"), would not continue
to function if disconnected from the Company Network or
disconnected from any on-premise equipment provided by Company.
3.4 The Parties understand that the Customer's network is
interconnected with other government networks, including without
limitation other governmental entities having access to the network
for network redundancy purposes. Customer provides this
interconnection access as authorized by RCW 39.34, without a
revenue/profit component, and such access is expressly permitted by
this Agreement.
SECTION 4 - COMPENSATION; PAYMENT
4.1 The Non-Recurring Charges (“Non-Recurring Charges” or
“NRC”) and Monthly Recurring Charges (“Monthly Recurring
Charges” or “MRC”) for the Facilities are set forth in the attached
Schedule A and on the first page of the Agreement. Upon the
availability of Facilities, Company shall invoice Customer for the
NRC and Customer shall pay Company one hundred percent (100%)
of the NRC. Unless otherwise stated in this Agreement, Company
will invoice Customer in advance on a monthly basis for all Monthly
Recurring Charges arising under the Agreement. Payment will be
considered timely made to Company if received within thirty (30)
days after the invoice date set forth in the invoice. Any charges not
paid to Company within such period will be considered past due. In
the event the Facilities Availability Date is not the first day of the
billing period, the first Recurring Charge shall also include the
prorated in arrears charges for Services from date of installation to
the date of first billing.
4.2 Any payment not made when due will be subject to a late
charge of 1.5% per month or the highest rate allowed by law on the
unpaid invoice, whichever is lower.
4.3 Except for taxes based on Company’s net income, and
except to the extent Customer provides a valid tax exemption
certificate acceptable to Comcast prior to the Facility Availability
Date, Customer shall be responsible for the payment of any and all
applicable local, state, and federal taxes (however designated) levied
upon the sale, installation, use or provision of the Facilities, including
all applicable right-of-way, franchise, pole attachment, pole rental
and/or other permitting, rental or joint use fees in proportion to its
activities hereunder. Further, Company reserves the right to invoice
Customer for the costs of any fees or payment obligations stemming
from an order, rule, or regulation of the FCC, a public service
commission or a court of competent jurisdiction with respect to the
Facilities, including, without limitation, charges to recover amounts
that Company is permitted by government or quasi-governmental
authorities to collect from or to pay to others in support of statutory
or regulatory programs, including, without limitation, franchise fees
and right-of-way fees. It will be the responsibility of Customer to
pay any such taxes and fees that subsequently become applicable
retroactively. To the Parties knowledge, there currently are no such
taxes or fees applicable to Customer’s use of the Facilities. In the
event taxes or fees become applicable to Customer’s use of the
Facilities, Company shall use commercially reasonable efforts to give
Customer prior notice of such taxes and fees; provided, that,
Customer shall remain obligated to pay any such taxes and fees.
SECTION 5 - TERM
Unless sooner terminated as provided herein, the term of this
Agreement shall be for one-hundred twenty (120) months from the
Facility Availability Date (“Term”). Upon the expiration of the
Term, this Agreement shall automatically renew for successive
periods of one (1) year each (“Renewal Term(s)”), unless prior notice
of non-renewal is delivered by either Party to the other at least thirty
(30) days before the expiration of the Term or the then current
Renewal Term.
SECTION 6 - TERMINATION WITHOUT FAULT; DEFAULT
6.1 Notwithstanding any other term or provision in this
Agreement, Customer shall have the right, in its sole discretion, to
terminate this Agreement at any time during the Term, or any
Renewal Term, upon (i) sixty (60) days prior written notice to
Company and (ii) the payment of 100% of the remaining Monthly
Recurring Charges payable to Company within ten (10) days
following termination of the Agreement (“Termination Charges”).
6.2 (a) Company may, in its sole discretion, immediately
terminate this Agreement in the event that it is unable to provide
access to the Facilities due to any law, rule, regulation, Force
Majeure event, or judgment of any court or government agency. If
Company terminates the agreement under this subsection 6.2(a),
Customer shall have no obligation to pay any remaining Monthly
Recurring Charges as a result of Termination by the Company, with
the exception of payments due for Facilities actually provided.
(b) Any breach of Article 9A shall be deemed a material
breach of this Agreement. In the event of such material breach,
Company shall have the right to restrict, suspend, or terminate
immediately any or all Service, without liability on the part of
Company, and then to notify Customer of the action that Company
has taken and the reason for such action, in addition to any and all
other rights and remedies under this Agreement. In the event
Company terminates service under this subsection 6.2(b), Customer
shall be responsible for the payment of all past due amounts and
Termination Charges in addition to any other remedies as identified
in section 6.4.
6.3 In the event of default, either Party may terminate this
Agreement. A “default” exists under this Agreement upon the
following events:
(i) either Party’s failure to meet or perform any material term,
provision, covenant, agreement, or obligation contained in this
Agreement; provided that the non-defaulting Party so advises the
8.a
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CONFIDENTIAL and PROPRIETARY
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defaulting Party in writing of the event of default and the defaulting
Party does not remedy the default within thirty (30) days after written
notice thereof; or
(ii) Either Party’s insolvency or initiation of bankruptcy or
receivership proceedings by or against the Party.
(iii) Customer is in breach of a payment obligation and fails to
make payment in full within ten (10) days after receipt of written
notice of default.
6.4 The non-defaulting Party shall be entitled to all available
legal and equitable remedies for such breach.
6.5 In addition to the remedies set f orth in Section 6.4 above;
Company shall be entitled to Termination Charges for any Customer
Default.
SECTION 7 – MAINTENANCE
7.1 Maintenance consists of the repair or replacement, at
Company’s option, of any portion of the Facilities that is
malfunctioning. Company will maintain the Facilities twenty-four
(24) hours a day, seven (7) days per week, every day of the year.
Company is responsible for the maintenance of such equipment..
Except in the event of an emergency, Company shall provide forty-
eight (48) hours advance notice of any such maintenance and all
maintenance and repair of the Facilities shall be performed by or
under the direction of Company. Customer may not, nor permit
others to, rearrange, disconnect, remove, attempt to repair or
otherwise tamper with any of the Facilities or equipment installed by
Company, except with the written consent of Company, which
consent shall be at Company’s sole discretion. In the event that
Company, in responding to a Customer-initiated service call,
determines that the reason for such service call is due to Customer-
provided equipment or Customer's actions or omissions, acts or
omissions of third parties with whom Customer has any type of
relationship, Customer shall compensate Company for Company’s
costs of such service call at the rate of $50.00 per half hour and
$150.00 per truck roll charge.
SECTION 8 - LIMITATIONS ON WARRANTIES AND
LIABILITY
8.1 COMPANY AND ITS AFFILIATES WILL NOT BE
LIABLE TO CUSTOMER FOR ANY INCIDENTAL,
INDIRECT, SPECIAL, COVER, PUNITIVE OR
CONSEQUENTIAL DAMAGES, WHETHER OR NOT
FORESEEABLE, OF ANY KIND INCLUDING BUT NOT
LIMITED TO ANY COST OF SUBSTITUTE PRODUCT(S),
FACILITIES, OR SERVICES,, LOSS OF REVENUE, LOSS OF
USE, LOSS OF BUSINESS, OR LOSS OF PROFIT WHETHER
SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR
TORT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
IN THIS AGREEMENT, COMPANY’S AGGREGATE
LIABILITY TO CUSTOMER FOR ANY DAMAGES OF ANY
KIND UNDER THIS AGREEMENT WILL NOT EXCEED, IN
AMOUNT, A SUM EQUIVALENT TO THE APPLICABLE
OUT-OF-SERVICE CREDIT.
8.2 THERE ARE NO WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
8.3 Company’s liability for mistakes, errors, omissions,
interruptions, delays, outages, or defects in any Facility or Service
(individually or collectively, “Liability”) shall be limited solely to
1/30th of the Monthly Recurring Charge for the affected portion of the
Service, for one or more Liabilities of at least two (2) hours in
duration in any 24-hour period that is not coincident with any other
Liability, (“Credit”), provided that the Liability is reported by
Customer during the duration of the Liability. Notwithstanding the
foregoing, Company shall not be liable for such Credits if the event is
caused in part by force majeure events or Customer’s (or Customer’s
equipment’s) actions or omissions.
8.4 Company shall not be liable for any act or omission of any
other company or companies furnishing a portion of the Facilities
including, but not limited to, the inability of a supplier to provide
equipment in a timely manner for Network, or for damages
associated with services, facilities, or equipment which it does not
furnish, including, but not limited to, damages which result from the
operation of Customer’s system, equipment or facilities. In no event
shall Company, its affiliates, its/their employees agents, contractors,
merchants, or licensors be liable for any loss, damage or claim arising
out of or related to: (1) stored, transmitted, or recorded data, files, or
software. (i.e., Customer is advised to back up all data, files and
software prior to the installation of service and at regular intervals
thereafter); (2) interoperability, interaction or interconnection of the
Service provided under this Agreement with applications, equipment,
services or networks provided by Customer or third parties.
8.5 Neither Customer nor its agents or independent contractors
shall offer third parties warranties or representations for the Service
which would obligate or otherwise bind Company beyond any
warranty or representation expressly set forth in this Agreement.
SECTION 9 – RESERVED
SECTION 9A - USE POLICIES
9A.1 Except as provided for in Section 3.4 herein, Customer
agrees to ensure that all uses of the Facilities by Customer or by any
other person (“user”), whether authorized by Customer or not, are
legal, appropriate and compliant with all applicable rules, regulations,
and orders of any governmental authority having jurisdiction over the
Facilities, and this Agreement. Customer shall not use, or permit any
other entity or person to use, the Facilities to provide internet access
service, cable television service, telecommunications, or any other
services to any third party, or any services to or from locations other
than the locations set forth in Schedule A. Company reserves the
right, upon five (5) business days prior written notice to Customer, to
terminate or suspend all rights to use the Facilities if Company (i)
determines that such use or information does not conform to the
requirements set forth in this Agreement, or (ii) determines that such
use or information interferes with Company’s ability to provide the
Services to Customer or others. Company’s action or inaction in
enforcing the requirements of this Section shall not constitute review
or approval of Customer’s or any other users’ use or information.
9A.2 Violation. Any breach of this Article 9A shall be deemed a
material breach of this Agreement. In the event of such material
breach, Company shall have the right, upon five (5) days prior
written notice to Customer, to restrict, suspend, or terminate
immediately any or all rights to access to the Facilities, without
liability on the part of Company, in addition to any and all other
rights and remedies under this Agreement.
SECTION 10 - INSURANCE
10.1 Customer shall, at its own expense, secure and maintain in
force, throughout the term of this Agreement, General Liability
Insurance, with competent and qualified issuing insurance
companies, including the following coverages: Product Liability;
Hazard of Premises/Operations (including explosion, collapse and
underground coverages); Independent Contractors; Products and
Completed Operations; Blanket Contractual Liability (covering the
8.a
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liability assumed in this Agreement); Personal Injury (including
death); and Broad Form Property Damage in policy or policies of
insurance such that the total available limits to all insureds will not be
less than $2,000,000 Combined Single Limit for each occurrence and
$2,000,000 aggregated for each annual period. Such insurance may
be provided in policy or policies, primary and excess, including the
so-called Umbrella or Catastrophe forms and each such policy shall
be endorsed to show Company, its parent and affiliates and its and
their directors, officers, agents, servants, employees and independent
contractors as additional insureds. In addition, Customer shall
maintain in effect, with insurance companies of recognized
responsibility, at its own expense, (i) "All Risk" property insurance
coverage with limits sufficient to cover the full replacement cost of
the Facilities with no co-insurance, (ii) Business Interruption
coverage on an actual loss sustained basis, and (iii) such other
insurance as may be required by any applicable franchise and/or pole
attachment or conduit license agreements, as applicable and naming
Company as the loss payee. All policies required by this Section
shall require the insurance companies to notify Company at least
thirty (30) days prior to the effective date of any cancellation or
material modification of such policies.
SECTION 11 - ASSIGNMENT
11.1 Neither Party shall assign any right, obligation or duty, in
whole or in part, nor of any other interest hereunder, without the prior
written consent of the other Party, which shall not be unreasonably
withheld. The foregoing notwithstanding, Company may assign this
Agreement to any affiliate, related entity, or successor in interest
without Customer’s consent. In addition, Company may partially
assign its rights and obligations hereunder to any party which
acquires from Company all or substantially all of the assets of cable
franchise(s) in which the Service is deployed to Customer.
11.2 All obligations and duties of either Party under this
Agreement shall be binding on all successors in interest and assigns
of such Party.
SECTION 12 - FORCE MAJEURE
Neither Party shall be held liable for any delay or failure in
performance of any part of this Agreement from any cause beyond its
control and without its fault or negligence, such as acts of God, acts
of civil or military authority, act of terrorism, government
regulations, condemnation of any part of the Network used to provide
the Facilities or Services, embargoes, epidemics, war, terrorist acts,
riots, insurrections, fires, explosions, earthquakes, nuclear accidents,
floods, power blackouts, unusually severe weather conditions,
inability to secure products or services of other persons or
transportation facilities, or acts or omissions of transportation
common carriers.
SECTION 13 - SEVERABILITY
In the event that any one or more of the provisions in this Agreement
shall for any reason be held invalid, unenforceable, or void in any
respect under the laws of the jurisdiction governing the entire
Agreement, such provision(s) shall be construed so as to render it
enforceable and effective to the maximum extent possible in order to
effectuate the intention of this Agreement; and the validity, legality,
and enforceability of the remaining provisions hereof shall not be
affected or impaired.
SECTION 14 - THIRD-PARTY BENEFICIARIES
No provision in this Agreement is intended, nor shall any be
interpreted, to provide any person not a Party to this Agreement with
any remedy, claim, liability, reimbursement, cause of action or create
any other third party beneficiary rights against Company.
SECTION 15 - INDEPENDENT CONTRACTORS
15.1 The Parties to this Agreement are independent contractors.
Neither Party is an agent, representative, or partner of the other Party.
Neither Party shall have any right, power, or authority to enter into
any agreement for, or on behalf of, or incur any obligation or liability
of, or to otherwise bind, the other Party. This Agreement shall not be
interpreted or construed to create an association, agency, joint
venture, or partnership between the Parties or to impose any liability
attributable to such a relationship upon either Party.
15.2 The requirements of this Article shall survive the
expiration, termination, or cancellation of this Agreement to the
greatest extent permitted by law.
SECTION 16 - NONDISCLOSURE
16.1 Unless prior written consent is obtained from a Party
hereto, the other Party will keep in strictest confidence all
information identified by the first Party as confidential, or which,
from the circumstances, in good faith and in good conscience, should
be treated as confidential; provided that (a) the owner thereof has
taken reasonable measures to keep such information secret; and (b)
the information derives independent economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable through proper means by the public. Such information
includes but is not limited to all forms and types of financial,
business, scientific, technical, economic, or engineering information,
including patterns, plans, compilations, program devices, formulas,
designs, prototypes, methods, techniques, processes, procedures,
programs, or codes, whether tangible or intangible, and whether or
not stored, compiled, or memorialized physically, electronically,
graphically, photographically, or in writing. A Party shall be excused
from these nondisclosure provisions if the information (i) has been,
or is subsequently, made public by the disclosing Party, (ii) is
independently developed by the other Party, if the disclosing Party
gives its express, prior written consent to the public disclosure of the
information (iii) or (iv) if the disclosure is required by any law or
governmental or quasi-governmental rule or regulation.
16.2 Customer shall not disclose to third parties the rates, terms, or
conditions of this Agreement or any proprietary or confidential
information of the Company, except (i) as necessary for the operation
of Customer’s business and under non-disclosure agreement between
Customer and third parties and (ii) as required by applicable law,
including, but not limited to, the State Public Records Act, Chapter
42.56 of the Revised Code of Washington (“RCW”).
16.3 Company acknowledges and agree that, as a public agency,
records and information provided to or otherwise used by the
Customer may be subject to a request submitted under the state
Public Records Act. In such an event, Company agrees to cooperate
fully with the Customer in satisfying the Customer’s duties and
obligations under the Public Records Act, subject to Company’s
rights under this Agreement and RCW 42.56.540. If a request is
received for records Company has submitted to the Customer and has
identified as confidential, proprietary, or protected trade secret
material, the Customer will use its best efforts to provide Company
with notice of the request in accordance with RCW 42.56.540 and a
reasonable time (of no less than 10 days) within which Company may
seek an injunction to prohibit the Customer’s disclosure of the
requested record. The Customer is not required to assert on
Company’s behalf any exemption based on trade secret, proprietary,
or confidential information, provided, however, the Customer may
assert such exemption if the Customer itself believes in good faith
that an exemption applies to the requested records. Comcast agrees to
defend, indemnify, and hold the Customer, its officers, officials,
employees, agents, and volunteers harmless from any and all claims,
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CONFIDENTIAL and PROPRIETARY
rcv. 10.10.17
injuries, damages, losses or suits, including all legal costs and
attorney fees, arising out of or in connection with the assertion of an
exemption to disclosure under the Public Records Act based upon
records claimed or identified by Company as confidential,
proprietary, or protected trade secret material. The provisions of this
section shall survive the expiration or termination of this Agreement.
SECTION 16A - CUSTOMER PRIVACY POLICIES
16A.1 In addition to the provisions of Article 16, the privacy
policy below applies to Company’s handling of Customer
confidential information. In the event of a conflict between the
provisions of Article 16 and any provision of the privacy policy
below, the applicable provision of the privacy policy shall prevail in
the resolution of the conflict. A copy of Company’s privacy policy is
available at http://www.comcast.com/customerprivacy/. Company
may update this policy from time to time, and such updates shall be
deemed effective upon posting.
16A.2 Privacy Note Regarding Information Provided to Third
Parties: Company is not responsible for any information provided by
Customer to third parties, and this information is not subject to the
privacy provisions of this Agreement or the privacy policies.
Customer assumes all privacy and other risks associated with
providing personally identifiable information to third parties via the
Services.
SECTION 17 – NOTICES
17.1 Any notices or other communications contemplated or
required under this Agreement, in order to be valid, shall be in writing
and shall be given via personal delivery, or overnight courier, or via U.S.
Certified Mail, Return Receipt Requested, at the following addresses:
To Customer:
Attn: Director of Information Technology
City of Kent
220 Fourth Avenue S.
Kent, WA 98032
With a copy to:
City Attorney’s Office
City of Kent
220 Fourth Avenue S.
Kent, WA 98032
To Company:
Attn.: VP – Business Services
Comcast Cable Communications Management, LLC
1701 JFK Blvd / One Comcast Center
Philadelphia, PA 19103
With a copy to:
Attn.: Cable Law Department - Operations
Comcast Cable Communications, LLC.
1701 JFK Blvd / One Comcast Center
Philadelphia, PA 19103
SECTION 18 - HEADINGS AND TITLES
The headings or titles of any provisions of this Agreement are for
convenience or reference only and are not to be considered in
construing this Agreement.
SECTION 19 – CHOICE OF LAW
The domestic law of the state in which the Services are provided shall
govern the construction, interpretation, and performance of this
Agreement, except to the extent superseded by federal law.
SECTION 20 - COMPLIANCE WITH LAWS
Each of the Parties agrees to comply with all applicable local, state
and federal laws and regulations and ordinances in the performance
of its respective obligations under this Agreement.
SECTION 21 - AMENDMENTS; NO WAIVER
21.1 This Agreement may be amended only by written
agreement signed by authorized representatives of both Parties.
21.2 No waiver of any provisions of this Agreement or to any
default under this Agreement shall be effective unless the same shall
be in writing and signed by or on behalf of the Party against whom
such waiver is claimed.
21.3 No course of dealing or failure of any Party to strictly
enforce any term, right, or condition of this Agreement shall be
construed as a waiver of such term, right or condition.
21.4 Waiver by either Party of any default by the other Party
shall not be deemed a waiver of any other default.
SECTION 22 - SURVIVAL
Provisions contained in this Agreement that by their sense and
context are intended to survive the performance, termination or
cancellation of this Agreement hereof by any Party hereto shall so
survive.
SECTION 23 - FULLY INTEGRATED
This writing constitutes the entire agreement between the Parties as to
the subject matter hereof and supersedes and merges all prior oral or
written agreements, representations, statements, negotiations,
understandings, proposals, and undertakings with respect to the
Agreement.
SECTION 24 -INTERPRETATION OF AGREEMENT
This Agreement is a negotiated document. In the event that this
Agreement requires interpretation, such interpretation shall not use
any rule of construction that a document is to be construed more
strictly against the Party who prepared the document.
SECTION 25 - RIGHT TO ENTER INTO CONTRACTS
Nothing herein shall be construed as preventing either Party hereto
from entering into similar contractual arrangements with other
parties, unless such contracts would conflict with the performance of
this Agreement.
SECTION 26 - REMEDIES CUMULATIVE
All rights of termination, or other remedies set forth in this
Agreement are cumulative and are not intended to be exclusive of
other remedies to which the injured Party may be entitled at law or
equity in case of any breach or threatened breach by the other Party
of any provision of this Agreement. Use of one or more remedies
shall not bar use of any other remedy for the purpose of enforcing
any provision of this Agreement; provided, however, that Party shall
not be entitled to retain the benefit of inconsistent remedies.
SECTION 27 - COUNTERPARTS
This Agreement may be executed simultaneously in two or more
counterparts, each counterpart shall be deemed an original, and all
counterparts individually or together shall constitute one and the
same instrument.
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Agreement ID#: WA-KDhil-110618-01 SO ID#:Account Name:
Primary Contact:Galen Hirschi Billing Account Name
Title:IT
Billing Name
(3rd Party Accounts) Address 1:
Address 1:220 4th Ave Billing Contact:Address 2:
Address 2:Title:City:
City:Kent Phone:State:
State:wa Cell:Zip Code:
Zip:98032 Fax:Tax Exempt:
Phone:2538564614 Email:
Cell:
Fax:
Email:ghirschi@kentwa.gov
Service Term (Months): *120
SUMMARY OF SERVICE CHARGES*
Current Monthly Recurring Charges:$0.00 Total Standard Installation Fees*:$0.00
Current Trunk Services Monthly Recurring Charges:$0.00 Total Trunk Services Standard Installation Fees:$0.00
Total Monthly Recurring Charges (all Services):$0.00 Total Standard Installation Fees (all Services):$0.00
Change Monthly Recurring Charges:$7,986.00
Change Trunk Services Monthly Recurring Charges:$0.00 Total Custom Installation Fee*:
Change Monthly Recurring Charges (all Services):$7,986.00
Total Monthly Recurring Charges:$7,986.00
Total Trunk Services Monthly Recurring Charges:$0.00
Total Monthly Recurring Charges (all Services):*$7,986.00 (*Refer to Dark Fiber Lease Agreement Cover Page for full MRC breakdown)SUMMARY OF MONTHLY EQUIPMENT FEES
Current Services Equipment Fee Monthly Recurring Charges:$0.00
Current Trunk Services Equipment Fee Monthly Recurring Charges:$0.00
Current Equipment Fee Monthly Recurring Charges (All Services):$0.00
Change Services Equipment Fee Monthly Recurring Charges:$0.00
Change Trunk Services Equipment Fee Monthly Recurring Charges:$0.00
Change Equipment Fee Monthly Recurring Charges (All Services):$0.00
Total Service Equipment Fee Monthly Recurring Charges $0.00
Total Trunk Service Equipment Fee Monthly Recurring Charges $0.00
Total Equipment Fee Monthly Recurring Charges (All Services)$0.00
COMCAST DARK FIBER LEASE AGREEMENT
SCHEDULE A
9977476 City of Kent
CUSTOMER INFORMATION (for notices)
City of kent INVOICE ADDRESS
Galen Hirschi 220 4 Ave
Galen Hirschi
Kent
2538564614 Wa
98032
No
ghirschi@kentwa.gov
* If Yes, please provide and attach all
applicable tax exemption certificates
SUMMARY OF CHARGES (Details on following pages)
SUMMARY OF STANDARD INSTALLATION FEES
SUMMARY OF CUSTOM INSTALLATION FEES
$0.00
*Note: Charges identified in the Sales Order are exclusive of maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Please refer to your Comcast Enterprise
Services Master Services Agreement (MSA) for specific detail regarding such charges. Customer shall pay Comcast one hundred percent (100%) of the non-amortized Custom Installation Fees prior to the installation of Service."
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Account Name:Date:
Agreement ID #: WA-KDhil-110618-01 SO ID#:
Short Description of Service:
Service Term:120 MONTHS
Line Request Action Service(s)Tax Jurisdiction Monthly One-Time
001 New Add Dark Fiber Primary Route Kent Shops / 5821 S 240th St Fire Station #74 / 24611 116th Ave SE Interstate $770.00 $0.00
002 New Add Dark Fiber Primary Route Correction Facility / 1230 S. Centra Fire Station #74 / 24611 116th Ave SE Interstate $1,298.00 $0.00
003 New Add Dark Fiber Primary Route Kent City Hall / 220 4th Avenue S.Fire Station #74 / 24611 116th Ave SE Interstate $1,298.00 $0.00
004 New Add Dark Fiber Primary Route Kent Commons / 525 4th Avenue N Fire Station #74 / 24611 116th Ave SE Interstate $770.00 $0.00
005 New Add Dark Fiber Primary Route Resource Center / 315 E. Meeker S Fire Station #74 / 24611 116th Ave SE Interstate $770.00 $0.00
006 New Add Dark Fiber Primary Route Senior Center / 600 E. Smith Fire Station #74 / 24611 116th Ave SE Interstate $770.00 $0.00
007 New Add Dark Fiber Primary Route Valley Communications / 23807 98t Fire Station #74 / 24611 116th Ave SE Interstate $770.00 $0.00
008 New Add Dark Fiber Primary Route Riverbend 18th Hole / 2019 E Meek Fire Station #74 / 24611 116th Ave SE Interstate $770.00 $0.00
009 New Add Dark Fiber Primary Route Future Maintenance Shops / SE 248 Fire Station #74 / 24611 116th Ave SE Interstate $770.00 $0.00
010 - - - - - - $0.00 $0.00
011 - - - - - - $0.00 $0.00
012 - - - - - - $0.00 $0.00
013 - - - - - - $0.00 $0.00
014 - - - - - - $0.00 $0.00
015 - - - - - - $0.00 $0.00
016 - - - - - - $0.00 $0.00
017 - - - - - - $0.00 $0.00
018 - - - - - - $0.00 $0.00
019 - - - - - - $0.00 $0.00
020 - - - - - - $0.00 $0.00
021 - - - - - $0.00 $0.00
022 - - - - - $0.00 $0.00
023 - - - - - $0.00 $0.00
024 - - - - - $0.00 $0.00
025 - - - - - $0.00 $0.00
026 - - - - - $0.00 $0.00
027 - - - - - $0.00 $0.00
028 - - - - - $0.00 $0.00
029 - - - - - $0.00 $0.00
030 - - - - - $0.00 $0.00
031 - - - - - $0.00 $0.00
032 - - - - - $0.00 $0.00
033 - - - - - $0.00 $0.00
034 - - - - - $0.00 $0.00
035 - - - - - $0.00 $0.00
036 - - - - - $0.00 $0.00
037 - - - - - $0.00 $0.00
038 - - - - - $0.00 $0.00
039 - - - - - $0.00 $0.00
040 - - - - - $0.00 $0.00
041 - - - - - $0.00 $0.00
042 - - - - - $0.00 $0.00
043 - - - - - $0.00 $0.00
044 - - - - - $0.00 $0.00
045 - - - - - $0.00 $0.00
046 - - - - - $0.00 $0.00
047 - - - - - $0.00 $0.00
048 - - - - - $0.00 $0.00
049 - - - - - $0.00 $0.00
050 - - - - - $0.00 $0.00
* Services Location Details attached Charges are Exclusive of Equipment Fees PAGE 2 SUBTOTAL:$7,986.00 $0.00
Description
Solution Charges
6Route
Service Location A*Service Location Z*
9977476
11/6/2018City of Kent
City of Kent Inet conversion
6Route
6Route
6Route
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
6Route
12Route
#N/A
12Route
6Route
6Route
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
#N/A
COMCAST DARK FIBER LEASE AGREEMENT
SCHEDULE A
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Date:11/6/2018 SO ID#:Account Name:
Line State
Incremental
Equipment
Fee
1 WA $0.00
2 WA $0.00
3 WA $0.00
4 WA $0.00
5 WA $0.00
6 WA $0.00
7 WA $0.00
8 WA $0.00
9 WA $0.00
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Agreement ID #: WA-KDhil-110618-01 9977476 City of Kent
Location Name/Site ID Address 1 Address 2 City Zip Code Technical/Local
Contact Name
Technical/Local
Contact Phone #
Technical/Local Contact Email
Address
(253) 856-4614 ghirschi@kentwa.gov
Correction Facility 1230 S. Central St.Kent 98032 Galen Hirschi (253) 856-4614 ghirschi@kentwa.gov
Kent Shops 5821 S 240th St Kent 98032 Galen Hirschi
(253) 856-4614 ghirschi@kentwa.gov
Kent Commons 525 4th Avenue N.Kent 98032 Galen Hirschi (253) 856-4614 ghirschi@kentwa.gov
Kent City Hall 220 4th Avenue S.Kent 98032 Galen Hirschi
(253) 856-4614 ghirschi@kentwa.gov
Senior Center 600 E. Smith Kent 98032 Galen Hirschi (253) 856-4614 ghirschi@kentwa.gov
Resource Center 315 E. Meeker St.Kent 98032 Galen Hirschi
(253) 856-4614 ghirschi@kentwa.gov
Riverbend 18th Hole 2019 E Meeker St.Kent 98032 Galen Hirschi (253) 856-4614 ghirschi@kentwa.gov
Valley Communications 27519 108TH AVE SE Kent 98030 Galen Hirschi
(253) 856-4614 ghirschi@kentwa.govFuture Maintenance Shops SE 248th & 124th Ave SE Kent 98032 Galen Hirschi
No
No
No
No
Technical Contact On Site
(Yes/No)
No
No
No
No
No
COMCAST DARK FIBER LEASE AGREEMENT
SCHEDULE A
Fire Station #74 24611 116th Ave SE Kent WA 98030 $0.00
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: January 15, 2019
TO: Operations Committee
SUBJECT: Consolidating Budget Adjustment Ordinance for Adjustments
between 12/1/18 and 12/30/18
MOTION: Recommend Council approve the consolidating budget
adjustment ordinance for adjustments made between December 1, 2018
and December 30, 2018, reflecting an overall budget increase of $820,500.
SUMMARY: Authorization is requested to approve the technical gross budget
adjustment ordinance reflecting an overall budget increase of $820,500.
These budget adjustments have not been previously approved by Council and are
necessary to ensure sufficient budget authority for the following funds:
o $400,000 increase to the Criminal Justice Fund for the purchase of new
police vehicles and radios out of the school zone camera fund
o $200,000 increase to the Property Insurance Fund for costs incurred to
date for the damages to the Lake Meridian Park restroom. Costs
exceeding $100,000 will be reimbursed by the City’s insurance provider
o $220,500 increase to the ShoWare Operating Fund primarily for lifecycle
capital needs, including audio/visual equipment (video scoreboard),
dehumidifier and dasher board system
BUDGET IMPACT: These expenditures are with existing fund balance or other
revenues.
SUPPORTS STRATEGIC PLAN GOAL:
Sustainable Services
ATTACHMENTS:
1. Budget Adjustment Ordinance YE 2018 Supp (PDF)
2. YE 2018 Budget Adjustment Exhibit A & detail (PDF)
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1 2017-2018 Budget Adjustment
December 2018
ORDINANCE NO.
AN ORDINANCE of the City Council of the
City of Kent, Washington, approving the
consolidating budget adjustments made between
December 1, 2018 and December 30, 2018,
reflecting an overall budget increase of $820,500.
RECITALS
A. Expenditures as classified in the final, adopted budget
constitute the city’s appropriations for that year. After adoption, there are
a variety of events that will precipitate the need to amend the adopted
budget, such as grant awards, bonds issuance, collective bargaining
agreements and additional budget requests coming through Council
committees. These modifications are periodically consolidated into a
supplemental budget adjustment ordinance amending the original adopted
budget.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. – Budget Adjustments. The 2017-2018 biennial
budget is amended to include budget fund adjustments for the final month
of 2018 from December 1 to December 30, 2018, as summarized and set
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2 2017-2018 Budget Adjustment
December 2018
forth in Exhibit “A,” which is attached and incorporated into this ordinance.
Except as amended by this ordinance, all terms and provisions of the
2017-2018 biennial budget Ordinance No. 4230, as amended by Ordinance
Nos. 4245, 4251, 4258, 4266, 4270, 4284, and 4301 shall remain
unchanged.
SECTION 2. – Severability. If any one or more section, subsection,
or sentence of this ordinance is 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; ordinance, section, or subsection numbering;
or references to other local, state, or federal laws, codes, rules, or
regulations.
SECTION 4. – Effective Date. This ordinance shall take effect and
be in force five days after publication, as provided by law.
DANA RALPH, MAYOR Date Approved
ATTEST:
KIMBERLEY A. KOMOTO, CITY CLERK Date Adopted
Date Published
9.a
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3 2017-2018 Budget Adjustment
December 2018
APPROVED AS TO FORM:
ARTHUR “PAT” FITZPATRICK, CITY ATTORNEY
9.a
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Fund Title Previously
Approved
Approval
Requested
Total Adjustment
Ordinance
Kent Events Center Fund - 220,500 220,500
Criminal Justice Fund - 400,000 400,000
Insurance Fund - 200,000 200,000
Total - 820,500 820,500
Exhibit A
City of Kent
Budget Adjustment Ordinance
Adjustments December 1, 2018 to December 30, 2018
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Approval
Date or
Other Fund
Previously
Approved by
Council
Not
Previously
Approved by
Council
Total
Adjustment
Ordinance
Kent Events Center
Lifecycle Capital Needs 202,500 202,500
KC sewer charges 18,000 18,000
Total Kent Events Center - 220,500 220,500
Criminal Justice Fund
Additional police vehicles & radios- School Zone Fund 400,000 400,000
Total Criminal Justice Fund - 400,000 400,000
Insurance Fund
Property Insurance - Lake Meridian restroom 200,000 200,000
Total Insurance Fund - 200,000 200,000
Grand Total All Funds - 820,500 820,500
Budget Adjustment Detail for Budget Changes
December 1, 2018 to December 30, 2018
9.b
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