HomeMy WebLinkAbout008 13574322 PGS~29 RESO
03/'12!2013 02.36 PM $100.00 JEFFERSON COUNTY PUBLIC WORKS
Jefferson County WR Rudi tor's Office -Donna Eldridge, Rudi for
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Jefferson County Public Works Department
623 Sheridan Street
Port Townsend, WA 98368
DOCUMENT TITLE
WaveDivision I, LLC Franchise
REFERENCE NUMBER(S) OF RELATED DOCUMENTS
Jefferson County Board of Commissioners Resolution 08-13
Additional Reference #s on page
GRANTOR(S) (Last, First and Middle Initial)
Jefferson County
Additional grantor on page
GRANTEE(S) (Last, First and Middle Initial)
WaveDivision I, LLC
Additional grantee on page
LEGAL DESCRIPTION (Abbreviated form: i.e. lot, block, plat or section, township, range, quarter/quarter)
NA -Jefferson County Road Rights-of-way within Sections, Townships, and Ranges listed
in WaveDivision I, LLC Franchise, Attachment A -Wave Service Territory
Additional legal on page _
ASSESSOR'S PROPERTY TAX PARCEL/ACCOUNT NUMBER
NA -Jefferson County Road Rights-of--way
Additional pazcel #s on page
The Auditor/Recorderwi!l rely on the information provided on this form. The staff will not read the document to
verify [he accuracy or completeness of the indexing information provided herein.
STATE OF WASHINGTON
COUNTY OF JEFFERSON
In The Matter of the Application by )
WaveDivision I, LLC )
For a Nonexclusive Franchise )
To Construct, Maintain, and Operate )
Cable Service Transmission and Distribution)
Lines Together With Poles, Wires, and )
Other Appurtenances Upon, Over, Along, )
And Across A Franchise Area Within )
Unincorporated Jefferson County )
Resolution 08 13
Granting A Nonexclusive
Franchise
WHEREAS, WaveDivision I, LLC, a Washington limited liability company (Wave), currently
provides Cable Information, Cable Telecommunications, and Cable Television Services (Cable
Services) within Jefferson County under a temporary franchise granted by Jefferson County on
February 6, 2012; and
WHEREAS, Wave has applied to Jefferson County for a long term franchise; and
WHEREAS, the Board desires to provide for the installation and operation of a Cable System
that reasonably meets the current and future cable=related needs and interests of the citizens of
Jefferson County, taking into consideration the cost of meeting such needs and interests; and
WHEREAS, the Board desires to grant Wave a long term nonexclusive franchise to install,
construct, repair, replace,. maintain, relocate, extend, remove, operate, and use cable transmission
and distribution lines together with poles, wires and other appurtenances upon, over, along and
within unincorporated Jefferson County; and
WHEREAS, Jefferson County Code (JCC) 13.60 requires cable service providers who occupy
County rights-of-way to obtain a franchise from the County pursuant to JCC 13.60 through 13.92
and pay all fees provided therein; and
WHEREAS, JCC Chapters 13.60 through 13.92 specify standards and procedures for granting
nonexclusive franchises for Cable Service providers to occupy County rights-of--way; and
WHEREAS, the Board finds that granting a franchise is consistent with the requirements of JCC
Section 13.60 through JCC 13.92 in that:
(a) Wave has the financial and technical ability to fulfill its obligations under a franchise
granted by Jefferson County;
(b) Wave has legal standing to be granted a franchise;
(c) Wave currently operates a Cable System in Jefferson County rights-of--way;
WaveDivision Franchise
(d) Granting a franchise would not significantly damage or disrupt public or private
facilities, improvements, services, travel, or landscaping, provided that there is appropriate
planning and provision for installation, maintenance, and repair of Wave's facilities;
(e) The public interest in minimizing the cost and disruption resulting from the presence
of Wave's facilities in County rights-of--way can be protected;
(f) Granting a franchise will enable Wave to continue to provide Cable Information,
Cable Telecommunications, and Cable Television Services in Jefferson County and not disrupt
service to the citizens of the County who subscribe to such services;
(g) Granting a franchise will protect the public's health, safety, and welfaze;
(h) Granting a franchise is consistent with applicable Federal, State, and County laws,
regulations, rules, and policies, including RCW 36.55, RCW 80.32, JCC 13.56, and JCC 13.60
through 13.92; and
WHEREAS, pursuant to RCW 36.55 and RCW 80.32, notice was posted in three (3) public
places in the County seat at least fifteen (15) days before the hearing date and notice was
published once a week for two (2) consecutive weeks in the official County newspaper of record,
the last publication being not less than five (5) days before the date fixed for the hearing; and
WHEREAS, pursuant to RCW Chapter 36.55 and RCW Chapter 80.32, a heazing on the
application was held on the 4th day of February, 2013; and
WHEREAS, the Board finds that it is in the public interest to grant a franchise to Wave;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF
JEFFERSON COUNTY that a Franchise is hereby granted to Wave, hereinafter Grantee, under
the following express terms and conditions:
SECTION 1 DEFINITIONS The terms listed below, as used in this Franchise, shall
have the meanings given herein. When not inconsistent with the text, words used in the present
tense include the future tense; words in the plural number include the singular number, words in
the singular number include the plural number, and the use of any gender shall be applicable to
all genders. The words "shall" and "will" are mandatory, and the word "may" is permissive.
Words not otherwise defined shall be given their common and ordinary meaning.
1.1 "Basic Cable Service" is the lowest priced tier of Cable Television Service that
includes the retransmission of local broadcast television signals.
1.2 "Board" means the Board of County Commissioners of Jefferson County.
1.3 "Cable Act" means the Communications Act of 1934, as amended by the Cable
Communications Policy Act of 1984, the Cable Television Consumer Protection and
WaveDivision Franchise
Competition Act of 1992, and the Telecommunications Act of 1996 and as may be further
amended.
1.4 "Cable Information Service" means two-way digital packet switched service over the
Cable System using a cable modem and Internet protocol that provides access to the Internet and
the capacity to transmit, acquire, store, transform, process, retrieve, and utilize information and
which may include interactive services and content, electronic mail, a web browser, website
hosting, and other enhancements.
1.5 "Cable Services" means Cable Information Service, Cable Telecommunications
Service, and Cable Television Service.
1.6 "Cable System" means a facility consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is designed to provide Cable
Services to multiple subscribers.
1.7 "Cable Telecommunications Service" means the transmittal of voice, data, image, or
graphic information over the Cable System.
1.8 "Cable Television Service" means (A) the one-way transmission to subscribers over
the Cable System of (i) video programming or (ii) other programming service, (B) subscriber
interaction, if any, over the Cable System which is required for the selection or use of such video
programming or other programming service, and (C) as otherwise defined by the FCC.
1.9 "County" means Jefferson County, a mutticipal corporation and political subdivision
of the State of Washington, represented by its designated employees, representatives, and agents,
including, but not limited to the County Administrator, County Engineer, and their designees.
1.10 "County Administrator" means the Jefferson County Administrator as designated in
the Jefferson County Code Chapter 2.01 or any successor or his or her designee.
1.11 "Emergency" means any condition constituting a clear and present danger to life,
safety, or property.
1.12 "Engineer" means the County Engineer or designee.
1.13 "Facilities" means, collectively, any and all (i) Cable Information, Cable
Telecommunications, and/or Cable Television transmission and distribution systems, including
but not limited to, poles (with or without cross arms), wires, lines, conduits, cables, braces, guys,
anchors, and vaults and (ii) any and all other equipment, appliances, attachments, appurtenances
and other items necessary, convenient, or in any way appertaining to any and all of the
foregoing, whether the same be located above or underground.
1.14 ``FCC" means the Federal Communications Commission or such successor
regulatory agency having jurisdiction over cable television and telecommunications companies.
WaveDivision Franchise
1.15 "Franchise" means the grant of rights, privileges, and authority embodied in this
Resolution.
1.16 "Franchise Area" means all rights-of--way for County roads, streets, avenues, alleys,
and highways located within those portions of the County listed in Attachment A -
WaveDivision Service Territory and not within an incorporated city or town, as now or as may
hereafter be laid out, platted, dedicated, or improved within the present limits of the County and
as such limits may be hereafter extended. The Franchise Area does not include (a) any other
County owned or leased properties or easements (i.e., County owned or leased properties or
easements unrelated to the roads, streets, avenues, alleys and/or highways described above),
including, but not limited to, parks, trails, facilities, or pits, located inside or outside of the
boundaries of the County, or (b) Grantee owned or leased properties or easements located inside
or outside of the boundaries of the County.
1.17 "Gross. Revenues" means any and all of Grantee's receipts and revenues received
directly or indirectly from the provision of Cable Television Service over the Cable System
including, but not limited to, revenues from local and national advertising, Home Shopping
Channel revenues, and installation fees, except that transactions related to real property receipts
by Grantee, any taxes on services furnished by Grantee imposed on any customer or used by any
governmental unit, agency or instrumentality and collected by Grantee for such entity, apd net
uncollectable debts are not considered as revenue in this definition. Gross revenues shall not
include revenues derived from providing Cable Information and Cable Telecommunications
Service.
In the event that Grantee offers bundling of Cable Television Service (CTS) with other non-
Cable Television Services (NCTS), Gross Revenues from bundled services shall be calculated as
follows:
Gross Revenues = (CTS / (CTS +NCTS)) x BS
where CTS is the current charges or fees paid by subscribers receiving Cable Television Service
only, NCTS is the current charges or fees paid by subscribers receiving non-Cable Television
Services only, and BS is the current charges or fees paid by subscribers receiving Bundled
Services, both Cable Television Service and other non-Cable Television Services.
1.18 "JCC" means the Jefferson County Code, as it now exists or as it is later amended or
superseded.
1.19 "Liquidated damages" means the requirements imposed on Grantee to pay specified,.
pre-calculated sums to the County as a result of performance deficiencies identified herein, rather
than actual costs.
1.20 "MUTCD" means the Manual on Uniform Traffic Control Devices, as adopted by
the Washington State Department of Transportation and published by the United States
Department of Transportation, Federal Highway. Administration, as it now exists or as later
amended or superseded.
WaveDivision Franchise
1.21 "Parties" or "Party" means collectively the County and Grantee, and individually
either the County or Grantee.
1.22 "Person" means an individual, entity, corporation, partnership, firm, association,
joint venture, or organization of any kind.
1.23 "Programming" means video and audio material or programs prepared for or
capable of transmission on a Cable System or the process of causing such material to be created,
received, transmitted, or distributed on a Cable System.
1.24 "Public Improvement Project" means any County capital improvement undertaken
by the County, including projects listed in the County's Six-Yeaz Transportation Improvement
Program or Annual Construction Program, or the construction, relocation, expansion, repair,
maintenance, or removal of any County-owned facility located on, in, over, or under the
Franchise Area that is undertaken by the County for parks; roads and/or streets; curbs and/or
sidewalks; pedestrian, bicycle, and/or other non-motorized transportation facilities; water
systems; sanitazy sewer systems; bridges, culverts, and storm drainage facilities; and County-
owned fiber optic cable, conduit, or network facilities. A Public Improvement Project will not
include any development or other activity requiring the relocation of Grantee's Facilities for the
benefit of a Third Party.
1.25 "Service Interruption" means a Cable System malfunction resulting in the loss of
picture and/or sound on one or more channels affecting more than one subscriber.
1.26 "Standard Drop" means the cable connection between the Cable System and a
subscriber's premises, up to a maximum length of one hundred fifty (150) feet measured from
the Cable System distribution line to a point six inches (6") outside the nearest exterior wail of
the premises.
1,27 "Third Party" means any Person other than the County and Grantee.
SECTION 2 FRANCHISE
2.1 Grant of Franchise.
2.1.1 Pursuant to the laws of the State of Washington, including, but not limited to,
RCW 36.55 and RCW 80.32.010, the County hereby grants to Grantee, subject to and in
accordance with the terms and conditions set forth herein, a nonexclusive franchise that grants
the right, authority and franchise to install, construct, repair, replace, maintain, relocate, extend,
remove, operate, and use Facilities in, upon, over, under, along, through, and across the
Franchise Area.
2.1.2 This Franchise shall, as of its effective date, supersede and replace all existing
franchises previously granted by the County to Grantee or any of its predecessors.
2:1.3 The Franchise granted shall not convey to Grantee any title or ownership
WaveDivision Franchise
interest in the Franchise Area, but shall be deemed a Franchise only to use and occupy the
Franchise Area for the limited purposes and term stated herein.
2.1.4 The Franchise granted shall not authorize, excuse, preclude or prohibit Grantee
from securing such further easements, leases, permits, or other approvals as may be required or
desired to lawfully occupy and use the Franchise Area.
2.1.5 The Parties acknowledge and agree that this Franchise shall not govern, cover,
or apply to any Facilities located on Grantee owned or leased properties or easements (whether
inside or outside of County rights-of--way, whether granted by a private or public entity, and
whether now exisfing or hereafter acquired) and that such Facilities are not, and will not be
deemed to be, located pursuant to rights derived from this Franchise.
2.1.6 The Franchise granted shall not be construed as any warranty of title.
2.1.7 No act, event, or occurrence shall give Grantee any rights to occupy or use the
Franchise Area permanently nor shall such act, event, or occurrence operate as an estoppel
against the County with regazd to a claim by Grantee of its right to permanently occupy or use
the Franchise Area.
2.1.8 Grantee specifically agrees to exercise its rights within the Franchise Area in
accordance with all applicable Federal and State of Washington laws and applicable rules and
regulations, as now exist or as later amended or superseded; and all applicable County codes,
including, but not limited to, JCC Title 13 Utilities; Division II. Accommodation of Utilities
upon Jefferson County Rights-of--Way, Chapter 13.56 and Division III Telecommunications Use
of Jefferson County Rights-of--way, Chapters 13.60 through 13.92, resolutions, and ordinances,
as now exist or as later amended or superseded; provided, however, in the event of a conflict or
inconsistency between any such provisions and this Franchise, the express terms and conditions
of this Franchise will govern; provided, further, nothing herein shall be deemed to waive,
prejudice, or otherwise limit any right of appeal afforded Grantee by such County codes,
resolutions and ordinances.
2.1.9 The express terms and conditions of this Franchise constitute a valid and
enforceable contract between the Parties.
2.2 Noninterference. All installation, construction, repair, replacement, maintenance,
relocation, extension, removal, operation, and use of Grantee's Facilities performed in, upon,
over, under, along, and/or across the Franchise Area shall be done in such a manner as not to
interfere with the free passage of pedestrian and/or vehicle traffic therein; the reasonable ingress
or egress to the properties abutting the Franchise Area as they exist at the time of installation of
the Facilities; the use, maintenance, and repair of existing County facilities and uses within the
Franchise Area; or the use, maintenance, and repair of existing utilities, drainage facilities, or
other improvements located within the Franchise Area. Grantee's Facilities shall have the same
preference in regard to non-County facilities, including, but not limited to, utilities, drainage
facilities, or other improvements that are proposed to be installed in the Franchise Area
subsequent in time to Grantee's Facilities. Nothing in this Section is intended to or will affect or
WaveDivision Franchise
modify the rights and obligations of the Parties with respect to the relocation of Grantee's
Facilities under Section 4. All relocations of Grantee's Facilities will be undertaken only subject
to and in accordance with the terms, conditions, and requirements set forth in Section 4.
2.3 Drawings. Grantee shall provide the County, upon the County's reasonable request,
copies of available drawings in Grantee's possession showing the location of Grantee's Facilities
at specific locations within the Franchise Area. As to any such drawings so provided, Grantee
does not warrant the accuracy thereof and to the extent the location of the Facilities are shown
such Facilities are shown in approximate location. Upon the County's request, in connection
with the design of any County improvement project within the Franchise Area, Grantee shall
verify the location of its underground Facilities within the Franchise Area. by excavating,
including pot holing, at no expense to the County. With respect to any excavations by or on
behalf of Grantee or the County within the Franchise Area, nothing herein is intended nor shall
be construed to relieve either Party of their respective obligations arising under applicable law
with respect to determining the location of utility facilities.
2.4 Term of Franchise.
2.4.1 Term of Franchise. This Franchise is granted for a period of ten (10) years
from the date it is filed with the Jefferson County Auditor, which date shall be the effective date
of this Franchise.
2.4.2 Franchise Acceptance. As an express condition of this Franchise, within sixty
(60) days after the adoption of this Franchise by the Board, Grantee shall file with the Clerk of
the Board its written acceptance of the Franchise. At the time of filing its written acceptance,
Grantee shall reimburse the County for the expenses required to be paid by Grantee under
Section 6.2 and deliver to the County the required evidence of insurance set out in Section 8. In
the event Grantee fails to accept this Franchise in the manner specified above within the said
sixty (60) days, this Franchise shall be null and void.
2.4.3 Franchise Extension. This Franchise may be extended at the sole reasonable
discretion of the Board for an additional period not to exceed 5 years upon written request by
Grantee, provided that Grantee has substantially implemented the Cable System upgrades
described in Section 16 and submitted to the County its most recent performance test and a
report by a qualified engineer which certifies that Grantee's Cable System meets the FCC
technical standazds listed in Section 11 and upon a finding by the County that Grantee has
substantially complied with the FCC customer service standards in Section 10. Such request
shall be submitted not more than three (3) years after the effective date of this Franchise.
2.5 Nonexclusive Franchise. The Franchise granted herein shall be nonexclusive. The
County specifically reserves the right to grant at any time such rights, permits, licenses, and/ar
franchises to Persons to use the Franchise Area for similar or different purposes allowed
hereunder as the County deems appropriate, so long as the same does not interfere with Grantee's
rights under this Franchise. Subject to this Franchise, Grantee shall not prevent or prohibit the
County from constnrcting, altering, maintaining, or using any portion of the Franchise Area or
affect its jurisdiction over any part thereof, the County having full power and authority to make
WaveDivision Franchise 7
all necessary changes, relocations, repairs, or maintenance of the Franchise Area as the County
deems appropriate. Grantee acknowledges that it cannot exclude the County from any portion of
the Franchise Area where it uses or occupies that portion of the Franchise Area unless the
County expressly agrees to such exclusion in writing.
2.6 Facilities Installed by Prior Franchise. Existing Facilities installed or maintained by
Grantee in accordance with prior franchise agreements on public grounds and places within the
County (but which are not within the Franchise Area as defined by this Franchise) may be
maintained and operated by Grantee at the location where such Facilities exist as of the effective
date of this Franchise for the term of this Franchise; provided, however, that no such Facilities
may be enlarged, improved or expanded without the prior review and approval of the County
pursuant to the provisions of any applicable County codes, ordinances, regulations, standards,
procedures, and/or permits, as now exist or as later amended or superseded.
SECTION 3 PERFORMANCE OF WORK
3.1 Permit Required.
3.1.1 Work by Grantee within the Franchise Area shall conform to the requirements
of the applicable codes, ordinances, and standards, including JCC 13.56 and JCC 13.60 through
13.92; provided, however, in the event of a conflict or inconsistency between any such
requirements and this Franchise, the express terms and conditions of this Franchise will govern
and control.
3.1.2 Prior to commencing any work within the Franchise Area, Grantee shall apply
for and receive a utility permit from the County if required pursuant to JCC 13.56. For the
elimination of doubt, JCC 13.56.050(3) allows for certain exempted activities in the County
rights-of--way without requiring utility permits, including but not limited to stringing cables on
utility poles and associated maintenance thereof, accessing and maintenance of existing
manholes, handholes, pedestals, closures and vaults, replacing above-ground .meters,
transformers, closures and pedestals, and performing emergency work, and JCC 13.56.050(1)
allows for "Type A" activities in the County rights-of--way pursuant to an annual utility permit,
including but not limited to the installation of individual service connections with less than 200
feet of trenching.
3.1.3 Work by Grantee shall comply with the utility permit and plans. The County
may order removal at Grantee's expense of work. that does not comply with the permit or plans.
3.1.4 Grantee is solely responsible for the performance and completion of work
authorized by a utility permit that is issued to Grantee.
3.2 Emergency Response and Repairs.
3.2.1 In the event of an emergency or the need for unexpected repair, Grantee may
commence such emergency response or repair as required by the circumstances, provided that
Grantee shall notify the County in writing before commencing the work or within twenty-four
WaveDivision Franchise
(24) hours, if advance notice is not practicable. In the event that Grantee conducts emergency
response or repairs under this section, Grantee shall make application for an utility permit as
soon as practicable, but in no event (unless waived by the County) later than thirty (30) days
from the emergency event.
3.2.2 In the event any of Grantee's Facilities within the Franchise Area are in a
condition such that, in the reasonable opinion of the Engineer, an Emergency is created, Grantee
upon request of the Engineer shall expeditiously and at its own expense repair the Facilities and
correct the emergency condition.
3.3 Restoration. After installation, construction, relocation, maintenance, removal,
repair, or replacement of any of Grantee's Facilities within the Franchise Area, Grantee at its
expense shall expeditiously restore the Franchise Area and any County property within the
Franchise Area that may have been disturbed or damaged by such work to at least the same
condition as they were in immediately prior to any such work. The County shall have final
approval of the condition of the Franchise Area after restoration pursuant to the provisions of
applicable County codes, ordinances, regulations, standards, and procedures as now exist or as
later amended or superseded; provided, however, nothing herein shall be deemed to waive,
prejudice, or limit any right of appeal afforded by such codes, ordinances, regulations, standards,
or procedures. Grantee or its agent shall contact the County for inspection upon completion of
work.
3.4 Refuse and Debris. Grantee shall promptly remove and properly dispose of refuse
and debris resulting from any of Grantee's work within the Franchise Area. Grantee shall
remove refuse and debris on a regulaz basis during the work day to keep all travel ways clear.
Should Grantee's work last for more than one day in a particular location in the Franchise Area,
all refuse and debris shall be removed prior to leaving the site at the end of the work day, to the
extent feasible in light of the work being undertaken by Grantee .
3.5 Financial Security. The County may require Grantee to post financial security, as
determined by the County, to ensure satisfactory completion of construction, including, but not
limited to, restoration of the Franchise Area following the completion of Grantee's work therein.
At the County's reasonable discretion, Grantee may provide and maintain a single on-going
financial security covering multiple permits in lieu of individual securities.
3.6 Monuments. All survey monuments that are disturbed, displaced, or destroyed by
Grantee in its performance of any work under this Franchise shall be referenced and restored by
Grantee, as per Chapter 332-120 WAC, as from time to time amended, and all pertinent Federal,
State and County standards and specifications.
3.7 Workmanlike Manner. All work performed by Grantee within the Franchise Area
shall be done in accordance with adopted County codes, ordinances, regulations, standards, and
procedures, together with the laws of the State of Washington, all as now exist or as later
amended or superseded in a thorough, professional, and workmanlike manner.
3.8 Traffic Control. Grantee's activities within the Franchise Area and activities within
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the Franchise Area conducted by Grantee's agents or by Third Parties under a Jefferson County
permit issued to Grantee shall conform to the latest edition of the Manual on Uniform Traffic
Control Devices, the requirements of JCC 13.56.460 Traffic Control, and approved traffic
control plans. It shall be the responsibility of Grantee to ensure compliance. Grantee shall be
liable for any damages resulting from Grantee's failure to provide adequate traffic control.
SECTION 4 RELOCATION OF FACILITIES FOR PUBLIC IMPROVEMENT
PROJECTS
4.1 Grantee at its own expense shall relocate its Facilities existing within the
Franchise Area as necessary to accommodate Public Improvement Projects, in accordance with
and subject to the terms and conditions set forth in this Section. The County acknowledges that
Grantee's ability to relocate its Facilities within the Franchise Area to accommodate Public
Improvement Projects may be constrained due to the need to acquire property rights or long lead
time items or to other conditions beyond Grantee's control. In order to reasonably accommodate
Grantee's constraints, while recognizing the County's authority to manage the Franchise Area
and responsibility to construct Public Improvement Projects within the County's funding and
scheduling constraints, the Parties will at all times work cooperatively and in good faith with the
goal of ensuring that relocations of Grantee's Facilities within the Franchise Area that are
required to accommodate Public Improvement Projects are planned, scheduled, and completed
promptly and with due regard to the interests and constraints of both Parties.
4.2 In order to assist Grantee in planning for Public Improvement Projects that may
require relocation of Grantee's Facilities within the Franchise Area, the County shall:
a. Provide Grantee with a copy of the Jefferson County Six Year Transportation Improvement
Program within thirty (30) days of its adoption by the Board;
b. Provide Grantee each year with a copy of the Jefferson County Annual Construction Program
within thirty (30) days of its adoption by the Board;
c. Meet with Grantee at Grantee's request during the first quarter of each year to discuss Public
Improvement Projects in the Annual Construction Program that may require relocation of
Grantee's Facilities; and
d. Provide Grantee with written notice and thirty percent (30%) complete plans for Public
Improvement Projects that may require relocation of Grantee's Facilities within thirty (30)
days of their preparation.
4.3 Whenever the County undertakes a Public Improvement Project that requires
relocation of Grantee's Facilities within the Franchise Area, the County shall, within a
reasonable time prior to the commencement of the Public Improvement Project and in any event
not less than one hundred twenty (120) days prior to the commencement of the Public
Improvement Project, provide Grantee written notice of the required relocation and reasonable
plans, specifications, and schedule for the Public Improvement Project. Within thirty (30) days
WaveDivision Franchise 10
of receipt of the notice, plans, specifications, and schedule, Grantee shall provide the County
with a proposed schedule to relocate its Facilities within the Franchise Area that will
accommodate the County's schedule for the Public Improvement Project.
4.4 Subject to compliance by the County with the teens of this Section and to the
maximum extent provided by law, Grantee shall reimburse the County for any and all costs,
expenses, and/or damages that are legally required to be paid by the County to its Third Party
contractor(s) as a direct result of a delay in meeting the schedule for a Public Improvement
Project, but only if, as, and to the extent the delay is directly caused by Grantee's breach of its
obligations under this Section.
4.5 If the County requires the subsequent relocation of any Facilities within five (5)
years from the date of relocation of such Facilities pursuant to this Section; the County shall bear
the entire cost of such subsequent relocation, except if the relocation is required by an emergency
under Section 4.6.
4.6 If an emergency arises that immediately endangers the property or life of any
individual or poses a threat to public safety or welfare that requires the relocation of Grantee's
Facilities within the Franchise Area, the County shall give Grantee notice of the emergency as
soon as reasonably practicable. Upon receipt of such notice from the County, Grantee shall
relocate the affected Facilities as soon as reasonably practicable at Grantee's expense.
SECTION 5 REMOVAL OF FACILITIES
5.1 In the event Grantee permanently ceases use of any of its Facilities within the
Franchise Area, Grantee shall, within one hundred eighty (180) days after such permanent.
cessation of use or such additional time as is agreed to between the Parties, remove such
Facilities at its sole cost and expense, except as set forth in Section 5.2.
5.2 With the express written consent of the. Engineer, the Grantee may leave such
Facilities in place subject to the conditions set forth in this Section. The Engineer's consent shall
not relieve the Grantee of the obligation and/or costs to subsequently remove or alter such
Facilities at the County's request, in which case the Grantee shall perform such work at no cost
to the County in accordance with this Section.
5.3 The obligations contained in this Section shall survive the expiration, revocation or
termination of this Franchise.
SECTION 6 RIGHTS AND POWERS RESERVED TO THE COUNTY
6.1 Franchise Fee.
6.1.1 During the term of the Franchise, Grantee shall pay a franchise fee to the
County in an amount equal to five percent (5%) of Grantee's Gross Revenues derived from the
operation of its Cable Television Service in Jefferson County. The franchise fee shall be
payable, in arrears, on a quarterly basis on or before the thirtieth (30a') day of each January,
WaveDivision Franchise 11
April, July and October. Any franchise fee not, paid as specified herein shall be subject to a
twelve percent (12%) annual interest rate, or the highest interest rate allowed by applicable law,
whichever is less, from the date due until paid.
6.1.2 Each franchise fee payment shall be accompanied by a financial report showing
Grantee's Gross Revenues included in the franchise fee computation.
6.1.3 The County shall have the right, no more than once per calendar year and upon
no less than ten (10) working days notice, to audit Grantee's records for the purpose of
ascertaining Grantee's gross revenues. In the event that an audit results in a determination that
Grantee has underpaid any franchise fee, Grantee shall pay the underpaid amount and interest
owed within thirty (30) days. In the event that an audit results in a determination that Grantee
has underpaid any franchise fee by more than five percent (5%), Grantee shall also reimburse the
County for its reasonable audit expenses not to exceed two thousand dollazs ($2,000). Any audit
shall be subject to reasonable confidentiality requirements consistent with Grantee's
confidentiality obligations under applicable law.
6.2 County Expenses. As provided for in JCC 13.88, the County will recover from the
Grantee the reasonable administrative expenses incurred by the County that are related to
(a) developing and approving this Franchise, such expenses not to exceed $6,000.00 or such
larger amount as reasonably agreed to by Grantee and the County, (b) processing permit
applications, reviewing plans, and inspecting construction, and (c) preparing a detailed statement
pursuant to Chapter 43.21C RCW. The expenses related to (a) above shall include staff wage
and benefit and indirect expenses as determined by the County, the expense to publish and post
legal notices of the public hearing required for this Franchise by RCW 36.55.040, and the
expense to record this Franchise with the Jefferson County Auditor as required by RCW
36.55.080.
6.3 Damage to Grantee's Facilities. The County shall not be liable for any damage to or
loss of any of Grantee's Facilities within the Franchise Area as a result of or in connection with
any emergency removal or relocation, public works, public improvements, construction,
excavation, grading, filling, mowing, or work of any kind in the Franchise Area by or on behalf
of the County or any entity under contract with the County, except for damage or loss caused by
the negligence or willful misconduct of the County or anyone acting for or on behalf of the
County. The foregoing, however, is not intended to, and will not in any way, limit the County's
liability for any breach by the County of this Franchise.
SECTION 7 INDEMNIFICATIONAND HOLD HARMLESS
7.1 In addition to and distinct from the insurance requirements of this Franchise, Grantee
shall indemnify, defend, and hold harmless the County, its elected and appointed officers,
officials, employees, representatives, and agents (collectively referred to as the "Indemnitees")
from any and all Third Party claims, demands, actions, suits, liabilities, losses, expenses,
damages, and judgments of any nature whatsoever, including all costs and attorneys fees, made
against the Indemnitees on account of injury or damage to the person or property of another, to
the extent such injury or damage is caused by the negligence of Grantee, its agents,
WaveDivision Franchise 12
representatives, employees, lessees, contractors, or subcontractors in exercising the rights
granted to Grantee under this Franchise.
7.2 In the event any such claim or demand is presented to or filed with the County that
causes the County to choose to invoke its rights under this Section, the County shall promptly
notify Grantee thereof, and Grantee shall have the right, at its election and at its sole cost and
expense, to settle and compromise such claim or demand as it pertains to Grantee's responsibility
to indemnify, defend, and hold harrrtless the Indemnitees. In the event any suit or action is begun
against the County based upon any such claim or demand, the County shall likewise promptly
notify Grantee thereof, and Grantee shall have the right, at its election and its sole cost and
expense, to settle and compromise such suit or action, or defend the same at its sole cost and
expense, by attorneys of its own election, as it pertains to Grantee's responsibility to indemnify,
defend, and hold harmless the Indemnitees.
7.3 In any and all claims against the Indemnitees by any officer, employee,
representative, or agent of the Grantee, its contractors, subcontractors, or lessees, or anyone
directly or indirectly employed by any of them, or anyone for whose acts any of them may be
liable, the indemnification obligation under this Section shall not be limited in any way by any
limitation on the amount or type of damages, compensation, or benefits payable by or for the
Grantee, its contractors, subcontractors, or lessees under worker's compensation acts, disability
benefit acts, or other employee benefit acts. It is further specifically understood that, solely to
the extent required to enforce the indemnification provided herein, Grantee waives its immunity
under Chapter 51 RCW Industrial Insurance; provided, however, the foregoing waiver shall not
in any way preclude Grantee from raising such immunity as a defense against any claim brought
directly against Grantee by any of its employees. This waiver has been mutually negotiated by
the Parties and is authorized by RCW 4.24.115. Grantee acknowledges that the County would
not enter into this Franchise without this waiver thereof.
7.4 Inspection or acceptance by the County of any work performed by Grantee shall not
be grounds for avoidance by Grantee of any of its obligations under this Section.
7.5 Said indemnification and hold harmless obligations shall extend to claims which are
not reduced to a suit and any claims which may be compromised prior to the culmination of any
litigation or the institution of any litigation.
7.6 In the event of liability for damages arising out of bodily injury to Persons or
damages to property or business caused by or resulting from the concurrent negligence of
Grantee and the County, Grantee's liability hereunder shall apply only to the extent of
negligence attributable to the Grantee, its agents, employees, representatives, lessees,
contractors, and subcontractors.
7.7 The provisions of this Section shall survive the expiration or termination of this
Franchise. Further, all provisions of this Section shall apply to the successors, assigns, and
lessees of Grantee.
WaveDivision Franchise 13
SECTION 8 INSURANCE
8.1 Grantee Insurance. Grantee shall procure and maintain for the duration of this
Franchise the following insurance:
a. Commercial General Liability insurance and, if necessary, Umbrella Liability insurance,
which will cover bodily injury, property damage, and any other exposure which can be
reasonably identified as potentially azising from Grantee's activities within the Franchise
Area. The limit of liability shall not be less than two million dollars ($2,000,000) per person
and one million dollars ($1,000,000) property damage. The County, its elected and
appointed officers, officials, employees, agents, and representatives shall be named as
additional insureds with respect to activities occurring within the Franchise Area. Coverage
shall be comprehensive with respect to the Grantee's activities performed in accordance with
the Franchise and shall include completed operations, collapse, explosions, and underground
hazards.
b. Business Automobile Liability insurance for owned, non-owned, and hired vehicles with
limits of not less than one million dollars ($1,000,000) per person and one million dollars
($1,000,000) per occurrence.
c. Workers' Compensation insurance as required by Chapter 51 RCW and Employers Liability
Coverage with a limit of not less than one million dollars ($1,000,000) per occurrence.
d. The insurance policies required by this Section shall be maintained at all times by Grantee.
Grantee shall notify the County at least forty-five (45) days before it cancels a policy.
Grantee shall be obligated to replace or renew a canceled or expiring policy and show proof
in the form of a certificate of insurance at least twenty (20) days before the expiration or
cancellation of the existing policy(s).
e. Grantee shall furnish the County with properly executed certificates of insurance or a signed
policy endorsement, which shall cleazly evidence all insurance required in this Section. The
certificates will, at a minimum, list the limits of liability and coverage.
£ Grantee or its agent will provide a copy of any and all insurance policies specified in this
Franchise upon request of the County.
g. The insurance limits mandated for any insurance coverage required by this Franchise are not
intended to be an indication of limits of exposure nor are they limitations on liability or
indemnification.
h. Excepting Workers Compensation Insurance, the County shall be named on all policies as an
additional insured. Grantee's insurance shall be in all circumstances primary to the insurance
available to the County.
8.2 Self-Insurance. In lieu of the insurance requirements set forth in Section 8.1,
Grantee may self-insure against such risks in such amounts, subject to good utility practice.
WaveDivision Franchise 14
Grantee shall provide the County with reasonable written evidence that the Grantee maintains
such self-insurance.
8.3 The obligations contained in this Section shall survive the expiration, revocation or
termination of this Franchise for a period of one (1) yeaz or for as long as Grantee's Facilities
remain within the Franchise Area, whichever is longer. Further, all provisions of this Section
shall apply to the successors, assigns, and lessees of Grantee.
SECTION 9 LIMITATION OF LIABILITY
9.1 The County's administration of this Franchise shall not be construed to create the
basis for any liability on the part of the County, its elected and appointed officers, officials,
agents, employees, and representatives for any injury or damage from the failure of Grantee to
comply with the provisions of this Franchise; for any injury or damage azising from the failure of
Grantee to comply with or follow a directive, order, or instruction of the FCC, any hearing
officer or administrative law judge, and/or a court of competent jurisdiction; by reason of any
plan, schedule, or specification review, inspection, notice and order, permission, or other
approval or consent by the County; for any action or inaction thereof authorized or done in
connection with the implementation or enforcement of this Franchise by the County; or for the
accuracy of plans submitted to the County.
SECTION 10 CUSTOMER SERVICE
10.1 Grantee shall comply with the Federal Communications. Commission's Cable
Television Operator Customer Service Standards, Title 47 CFR, Section 76.309 related to cable
system operator office hours and telephone availability; installations, outages, and service calls;
and communications between operators and customers. These standards aze contained in
Attachment B -Customer Service Standards.
SECTION 11 TECHNICAL STANDARDS AND EVALUATION
11.1 Grantee shall comply with all FCC rules and regulations with respect to the
reception, carriage, and distribution of signals.
11.2 Grantee shall comply with the Federal Communications Commission's Technical
Standazds, Title 47 CFR, Section 76.601, 76.605, and 76.609. Upon written request. by the
County, Grantee shall provide to the County within 30 days the results of its most recent
performance test conducted under the Federal Communications Commission's Technical
Standards, Title 47 CFR, Section 76.601, 76.605, and 76.609.
11.3 Grantee shall comply with the following standards:
a. Applicable County, State, and National/Federal codes and ordinances,
b. Applioable joint pole attachment standazds,
WaveDivision Franchise 15
c. National Electric Safety Code, ANSI C2, and
d. JCC Title 13 Utilities.
SECTION 12 PROGRAMMING AND SERVICES
12.1 Grantee shall use commercially reasonable efforts to provide the following broad
categories of programming:
Audio programming
Business
Children's programming
Cultural and performing arts
Documentary
Education
Family programming
General entertainment (including, but not limited to, movies)
Governmental affairs
History
News and information (local, regional, and national)
Public, educational, and goverrunental access
Science
Sports (regional and national)
Weather.
12.2 The requirement for each category of programming may be satisfied by providing a
sepazate channel devoted substantially to the category or by programming from more than one
channel in which the aggregate totals the equivalent of a channel devoted substantially to the
category.
12.3 The Parties expressly agree that the programming described in Section 12.1
represents broad categories of programming within the meaning of Title 47 U.S.C. 544(b)(2)(B).
12.4 Parental control devices. Upon the request of any subscriber, Grantee shall make
available at Grantee's actual cost a parental control device compatible with the subscriber's
equipment that will enable the subscriber to block access to channels. Grantee shall inform
subscribers of the availability of pazental control devices at the time of the original subscription.
SECTION 13 CABLE SERVICE COVERAGE AND EXTENSIONS
13.1 Throughout the term of this Franchise, Grantee agrees to construct, operate, and
maintain the Cable System so as to make all Cable Services provided over the Cable System
available to any Person within the Franchise Area in accordance with the terms and conditions of
this Franchise and. subject to this Section 13. Grantee shall provide cable service where
requested in the Franchise Area, provided there are at least 32 dwelling units per road mile or an
W aveDivision Franchise ] 6
equivalent ratio thereof, as measured from Grantee's nearest distribution line and provided such
dwelling units are situated along rights-of--way to which Grantee has reasonable access and the
extension is technically feasible. Notwithstanding the foregoing, the service availability, density,
and dwelling unit requirements in this Section 13.1 only will apply to locations in the Franchise
Area within the current service areas of Grantee's existing trunk lines. For the elimination of
doubt, Grantee will not be required to expand its existing trunk lines beyond its current
configuration within the Franchise Area, regardless of whether areas otherwise meet the density
requirements above.
13.2 Grantee shall provide cable service to any prospective subscriber located within one
hundred fifty (150) feet of an existing distribution line at the prevailing published installation
rate. Grantee will not be required to perform any underground boring to provide Cable Service to
any prospective subscriber.
13.3 In the event there is a request for service that is more than one hundred fifty (150)
feet from an existing distribution or trunk line, the prospective subscriber shall enter into a
contract with Grantee to pay for such installation on a time and materials cost basis for that
portion of the service line extending beyond one hundred fifty (150) feet If such request for
service is made by an individual prospective subscriber, the contract shall provide for pro-rata
reimbursement by subsequent subscribers. Whenever any subsequent subscriber connects to the
extended distribution line, that subscriber shall pay his/her pro-rata share of the extension cost to
Grantee prior to obtaining cable service. Grantee shall promptly tender such payment to the
original subscriber, provided the contract remains in effect. Reimbursement shall be calculated
on a frontage foot basis as a percentage of the total cost of the line extension.
13.4 Grantee shall not deny cable service to any group of potential subscribers because
of the income of the residents of the azea in which such group resides.
SECTION 14 CONTINUITY OF SERVICE
14.1 It shall be the right of all subscribers to continuously receive cable services so long
as their financial and other obligations to Grantee are fulfilled. So fat as it is within its
commercially reasonable control, Grantee shall act to ensure that all subscribers receive
uninterrupted service during the Franchise term. Grantee shall schedule any planned
interruptions, including testing and maintenance interruptions, for the shortest time possible and
when the minimum number of subscribers will be affected.
14.2 Upon notification from a subscriber within thirty (30) days of a service interruption,
Grantee shall credit the subscriber's account, provided that the subscriber was without service for
a period exceeding twenty-four (24) hours.
SECTION 15 TERMINATION OF SUBSCRIBER SERVICE
15.1 Upon termination of individual subscriber services, Grantee shall promptly remove
its facilities and equipment, excepting drop cable and internal wiring, from the premises of such
WaveDivision Franchise 17
subscriber upon subscriber's request, except as provided for in Section 15.3.
15.2 Except as provided for in Section 15.3, if, upon termination of services, Grantee
does not promptly remove its equipment from the premises of such subscriber within five (5)
working days, the subscriber shall not be charged for continued services, nor for failure to return
any equipment.
15.3 If Grantee requires the subscriber to return its equipment, Grantee shall notify the
subscriber of the date by which the equipment must be returned before a charge may be imposed
for failure to return the equipment.
SECTION 16 CABLE SERVICE UPGRADES
16.1 Grantee proposes to implement the following cable service upgrades in Jefferson
County:
a. Integrate the cable system with Grantee's fiber optic network in Washington State;
b. Upgrade the cable system's capacity to 750 MHz or to a capacity sufficient to provide Cable
Services to subscribers substantially equivalent to those services provided by other Cable
Systems with a capacity of 750 MHz;
c. Upgrade Grantee's video product offerings, including full High Definition channel line-up,
Video On Demand, and multi-room DVR;
d. Upgrade Internet service to 50 MBPS downstream service; and
e. Provide competitive local exchange and long-distance telephone service.
16.2 The service upgrade requirements in Section 16.1 do not apply to outlying sections
of the Franchise Area that are not currently designed with two-way capabilities with the rest of
Grantee's Cable System in the Franchise Area, including but not limited to sections of the
Franchise Area in and around Brinnon and Quilcene, Washington. Grantee shall endeavor to
improve Brinnon and Quilcene to a two-way capable system no later than January 1, 2015.
16.3 The County will consider Grantee's implementation of cable service upgrades when
considering whether to grant a Franchise extension as provided for in Section 2.4.3.
SECTION 17 PERIODIC REPORTS AND EVALUATIONS
17.1 As provided for in JCC 13.76.210 Periodic meetings and JCC 13.76.220
Evaluations and reports, the County may require Grantee to submit reasonable periodic reports
and attend reasonable evaluation meetings with County staff to review Grantee's compliance
with Franchise conditions.
WaveDivision Franchise ~ g
SECTION 18 RESOLVING DISPUTES THROUGH NEGOTIATION
18.1 The Parties agree to use their best efforts and good faith negotiations to prevent and
resolve disputes azising out of or related to this Franchise before they escalate into claims or
legal actions. To that end the Parties shall engage in the following dispute resolution processes:
a. For disputes related to Grantee's construction, installation, repair, operations, and
maintenance activities within County Road rights-of--way, the Engineer or his or her designee
shall meet with the Grantee's municipal liaison or his or her designee to discuss and attempt
to resolve the dispute in a timely manner.
b. For disputes related to all other aspects of this Franchise, the County Administrator or his or
her designee shall meet with Grantee's municipal liaison or his or her designee to discuss and
attempt to resolve those disputes in a timely manner.
18.2 In the event a dispute is not resolved through negotiations within fifteen (15)
business days, either Party may invoke the rights provided to them in Section 19 or institute a
legal proceeding in any court and/or governmental agency having jurisdiction over the dispute.
18.3 Neither Party may invoke or rely upon the terms and obligations of Section 19
(except for the Force Majeure rights in Section 19.2) until such time as the dispute resolution
procedure listed in this Section has been utilized.
18.4 No provision of this Franchise shall be deemed to bar the right of either Party to
seek or obtain judicial relief from a violation of any provision of this Franchise; nor to bar or
otherwise limit the right of either Parry to recover monetazy damages for such violations by the
other Party or to seek and obtain judicial enforcement of the other Party's obligations by means
of specific performance, injunctive relief or mandate, or any other remedy at law or in equity.
SECTION 19 FRANCHISE BREACHES, DAMAGES, AND TERMINATION
19.1 Default by Grantee. If Grantee materially breaches any term or condition of this
Franchise, the County may impose liquidated damages or terminate this Franchise in accordance
with the procedure in this Section. Upon termination of the Franchise, all Grantee's rights
hereunder shall cease.
19.1.1 The County shall notify Grantee in writing of the specific nature of any breach
of the Franchise. Within thirty (30) days of the date of mailing the notice or such longer period
specified by the County, Grantee shall respond in writing (a) that the breach has been cured, (b)
provide a cure plan and reasonable schedule to cure the breach, or (c) provide an explanation
with supporting documentation that refutes or excuses the breach. The County shall review
Grantee's response and respond in writing stating whether Grantee's response is adequate to
cure, refute, or excuse the breach.
19.1.2 Grantee shall be allowed sixty (60) days from the date that the written notice
WaveDivision Franchise 19
is received from the County to cure a breach. If the nature of the breach is such that it cannot be
fully cured within sixty (60) days due to circumstances beyond Grantee's commercially
reasonable control, Grantee shall request in writing that the County extend the time period for
curing the breach. The County shall extend the time period, provided that Grantee has promptly
commenced to initiate the cure and in the County's reasonable judgment has diligently pursued
its efforts to cure the breach.
19.1.3 If the County reasonably determines that Grantee's response is inadequate to
cure, refute, or excuse the breach, the County may take appropriate action, including imposing
liquidated damages or terminating the Franchise. Prior to imposing liquidated damages or
terminating the Franchise, the County shall give Grantee at least thirty (30) days written notice of
a regularly scheduled meeting of the Board at which meeting the Board intends to consider the
breach. At such meeting the Board shall consider a report from the County Administrator or
Engineer regarding the breach and hear any Person desiring to be heard. Grantee may present
testimony and evidence and cross-examine witnesses relevant to its defense. At the conclusion
of the hearing, the Board may dismiss the breach, defer action, impose liquidated damages as
provided for in Section 20, or terminate the Franchise. If the Board determines that Grantee's
breach justifies imposing liquidated damages or termination of the Franchise, the Boazd will pass
a resolution to that effect.
19.2 Force Majeure. A Party shall not be deemed in breach or default of any provisions
of this Franchise when earthquake, flood, storm, or other natural disaster, civil emergency, any
failure or delay in the performance by the other Party or a Third Party who is not an employee,
agent or contractor of the affected Parry, or other such circumstances beyond such Party's
control (a "Force Majeure Event") prevent performance or compliance. Upon removal or
termination of the Force Majeure Event, the Party claiming a Force Majeure Event shall
promptly perform the affected obligations in an orderly and expedited manner under this
Franchise. The Parties shall use all commercially reasonable efforts to eliminate or minimize
any delay caused by the Force Majeure Event.
SECTION 20 LIQUIDATED DAMAGES
20.1 If, following a meeting of the Board as provided for in Section 19, the County finds
that any of the following breaches of this Franchise have occurred and not been cured, the
County may impose the liquidated damages specified below:
a. Failure to pay franchise fees, provide accounting of gross revenues, permit auditing of gross
revenues, or reimburse the County of auditing expenses as required by Section 6.1: $100 per
day provided that in no event shall the aggregate amount for all such violations exceed
$10,000 per year;
b. Failure to provide certificates of insurance or signed insurance policy endorsements as
required by Section 8 Insurance: $100 per day provided that in no event shall the aggregate
amount for all such violations exceed $5,000 per year;
c. Failure to provide the broad categories of programming required by Section 12: $100 per day
WaveDivision Franchise 20
provided that in no event shall the aggregate amount for all such violations exceed $5,000 per
year;
d. Failure to provide and maintain requested Cable Service to any dwelling within the Franchise
Area as required by Section 13 and 14: $15 per day per affected residence provided that in
no event shall the aggregate amount for all such violations exceed $5,000 per year;
e. Failure to provide financial security as required by Section 3.5 or to provide periodic reports
or attend periodic evaluations as required by Section 17: $100 per day provided that in no
event shall the aggregate amount for all such violations exceed $5;000 per year;
£ Failure to obtain a permit to conduct work in County rights-of--way when required or to
adhere to right-of--way permit conditions: $100 per day provided that in no event shall the
aggregate amount for all such violations exceed $5,000 per year; and
20.2 Liquidated damages shall accrue for each day following the imposition of liquidated
damages by the Board under Section 19.
20.3 Grantee agrees that each of the foregoing failures shall result in injuries to the
County and its citizens and to Grantees subscribers for which the compensation would be
difficult to ascertain and prove. Accordingly Grantee agrees that the foregoing amounts are
liquidated damages, not a penalty or forfeiture,. and are within one or more of the exclusions to
the term "franchise fee" provided by Federal law at 47 U.S.C. 542(g)(2)(A-D) and therefore in
no way part of the compensation paid to the County pursuant to Section 6.1.
20.4 Notwithstanding anything in this Franchise to the contrary, the aggregate penalties
which may be assessed against Grantee during the Franchise term shall not exceed Seventy Five
Thousand Dollazs ($75,000).
SECTION 21 ASSIGNMENT OF FRANCHISE
21.1 Assignment. Grantee may not assign or otherwise transfer its rights, privileges or
authority under this Franchise without the prior written authorization and approval of the County.
Any assignment or transfer of any interest in this Franchise shall not be approved by the County
or be effective until the assignee or transferee becomes a signatory to this Franchise, assuming
all rights and obligations hereunder and agreeing to perform the terms and conditions under this
Franchise.
21.2 Binding on Successors. All provisions, conditions, regulations, and requirements
herein contained shall be binding upon the successors and assigns of Grantee and all privileges
as well as all obligations and liabilities of Grantee shall inure to its successors and assigns
equally as if they were specifically mentioned wherever Grantee is mentioned.
21.3 Notwithstanding the terms and conditions of Section 21.1, Grantee may, without
obtaining prior consent of the County, from time to time: (a) assign or transfer its assets,
WaveDivision Franchise 21
including the Franchise, provided however, that such assignment or transfer is to a parent or
subsidiary of Wave or another entity under direct or indirect control of the parent of Wave; (b)
restructure its debt or change the ownership interests among its equity participants or replace its
equity participants, in whole or in part, and/or its affiliates; (c) pledge or grant a security interest
in its assets, including but not limited to the Franchise, or of interests in Wave, to any lender(s)
for purposes of securing indebtedness.
SECTION 22 INCORPORATION/ANNEXATION
22.1 City or Town. If any portion of the Franchise Area covered by this Franchise is
incorporated into the limits of any city or town, this Franchise shall terminate as to any such
portion within the corporate limits of such city or town and the County shall be released of its
obligations under this Franchise as to the portion incorporated. This Franchise shall continue as
to all of the Franchise Area not incorporated into a city or town.
SECTION 23 VACATION
23.1 In the event the County vacates any portion of the Franchise Area, the Board may,
at its discretion and as provided for in Chapter 36.87.140 RCW, retain an easement in respect to
the vacated land for the construction, maintenance, repair, and replacement of Grantee's
Facilities that at the time of the vacation are specifically authorized under this .Franchise or
physically located on a portion of the land being vacated. The Board may also, at its discretion
and by giving forty-five (45) days written notice to Grantee, terminate this Franchise with
reference to such portion of the Franchise Area so vacated. The County shall not be liable for any
damages or loss to the Grantee by reason of such termination.
SECTION 24 NON-WAIVER OF RIGHTS
24.1 The excuse or forgiveness of performance or waiver of any provision(s) of this
Franchise shall not constitute a waiver of such provision(s) or future performance or prejudice
the right of the waiving Party to enforce any of the provisions of this Franchise at a subsequent
time.
SECTION 25 GOVERNING LAW AND VENUE
25.1 Governing Law.. This Franchise has been and shall be construed as having been
made and executed within the State of Washington. The Parties stipulate that this Franchise shall
be governed by the laws of the State of Washington, both as to its interpretation and
performance.
25.2 Venue. Any action at law, suit in equity, or judicial proceeding arising out of this
Franchise shall be instituted and maintained only in any of the courts of competent jurisdiction in
Jefferson County, Washington or as provided for in RCW 36.01.050.
WaveDivision Franchise 22
SECTION 26 NOTICES
26.1 Notices. Any notices required or permitted to be given under this Franchise shall be
deemed properly served when deposited with the United States Postal Service, postage paid,
addressed to the Party to receive same.
Notice to the County shall be sent to:
Public Works Director
Jefferson County Public Works Department
623 Sheridan Street
Port Townsend, WA 98368
Notice and billings to Grantee shall be sent to:
Executive Vice President, Business and Legal Affairs
WaveDivision I, LLC
401 Kirkland Parkplace
Kirkland, WA 98033
Grantee shall promptly notify the County of any change in the notice or billing addresses.
SECTION 27 SEVERABILITY AND SURVIVABILITY
27.1 If a court of competent jurisdiction holds any part, term, or provisian of this
Franchise to be illegal or invalid in whole or in part, the validity of the remaining provisions
shall not be affected and the Parties' rights and obligations shall be construed and enforced as if
the Franchise did not contain the particular provision held to be invalid. The invalidity of any
portion of this Franchise shall not abate, reduce or otherwise affect any consideration or other
obligation required of either Party or any grant of right to either Party.
27.2 The headings of the sections and paragraphs of this Franchise are for convenience
of reference only and are not intended to restrict, affect, or be of any weight in the interpretation
or construction of the provisions of such sections or paragraphs.
27.3 The terms and conditions contained in this Franchise that by their sense and context
are intended to survive the expiration or termination of this Franchise shall so survive.
SECTION 28 .AMENDMENT TO FRANCHISE
28.1 This Franchise may be amended. by mutual written agreement of the Parties (which
specifically states that it is an amendment to this Franchise) upon compliance with the
requirements ofRCW 36.55.
SECTION 29 ENTIRE AGREEMENT
29.1 Entire Agreement. The Parties agree that this Franchise is the complete .expression
of the terms and conditions hereunder and cannot be changed orally, but only by an instrument in
WaveDivision Franchise 23
writing executed by the Parties. Upon the adoption date of this Franchise and acceptance of the
Franchise by Grantee, all prior franchises between the County and Grantee, or its predecessors in
interest, for cable television and/or telecommunications services shall be deemed repealed. Any
oral or written representations or understandings not incorporated herein are specifically
excluded.
APPROVED AND ADOPTED this ~ day of ~.p,~ Yl ~~ ~ , , 2013.
~~
JEFFERSON COUNTY
$OARD OF COMMISSIONERS
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Raina Randall
Deputy Clerk of the Boazd
John Austin, Chair
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Phil7ohnson ember
~~0~~ ~Do
David W. Sullivan, Member
APPROVED A3 TO FORM:
I Z` ~6` ~z
A.v
David Alvazez
Deputy Prosecuting Attorney
WaveDivision Franchise 24
WaveDivision Franchise
Attachment A -WaveDivision Service Territory
Townshia Ra°ee Sections
25 North 1 West 2 - 5
25 North 2 West 2 - 11, 14 - 17, 21, 28 - 32
26 North 1 West 1 - 3, 5 - 7, 9 - 12, 14 -16,.18, 19, 21 - 23, 27 - 29, 32 - 35
26 North 2 West 2, 11, 13, 23 - 25
27 North 1 East 2 - 9, 16 - 20
27 North 1 West 1 - 20, 22 - 32, 34 - 36
27 North 2 West 1 - 4, 9 - 16, 21 - 28, 36
28 North l East 4 - 10,15 - 23, 25 - 35
28 North 1 West 1 - 36
28 North 2 West 1 - 4, 9 - 16, 21 - 28, 33 - 36
29 North I East 3 - 10, 16 - 19, 29 - 33
29 North 1 West 1 - 36
29 North 2 West 1 - 4, 9 - 16, 21 - 28, 33 - 36
30 North 1 East 17, 18, 20, 28, 29, 32, 33
30 North 1 West 4 - 9, 16 - 22, 26 - 35
30 North 2 West 1, 12, 13, 23 - 25, 27, 28, 33 - 36
31 North 1 West 31 - 33
WaveDivision Franchise 25
Wave Franchise
Attachment B -Customer Service Standards
TITLE 47 -- TELECOMMUNICATION
CHAPTER I -- FEDERAL COMMUNICATIONS COMMISSION
SUBCHAPTER C -- BROADCAST RADIO SERVICES
PART 76 -- MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
SUBPART H --GENERAL OPERATING REQUIREMENTS
47CFR 76.309
§ 76.309 Customer service obligations.
(a) A cable franchise authority may enforce the customer service standards set forth in paragraph (c) of this
sectioo against cable operators. The franchise authority most provide affected cable operators ninety (90)
days written notice of its intent to enforce the standards.
(b) Nothing in this rule should be construed to prevent or prohibit:
(1) A franchising authority and a cable operator from agreeing to customer service requirements that
exceed the standards set forth in paragraph (c) of this section;
(2) A franchising authority from enforcing, through the end of the franchise term, pre-existing customer
service requirements that exceed the standards set forth in paragraph (c) of this section and are contained in
current franchise agreements;
(3) Any State or any franchising authority from enacting or enforcing any consumer protection law, to
the extent not specifically preempted herein; or
(4) The establishment or enforcement of any State or municipal law or regulation concerning customer
service that imposes customer service requirements that exceed, or address matters not addressed by the
standards set forth in paragraph (c) of this section.
(c) Effective July 1, 1993, a cable operator shall be subject to the following customer service standards:
(1) Cable system office hours and telephone availability --
(i) The cable operator will maintain a local, toll-free or collect call telephone access line which will be
available to its subscribers 24 hours a day, seven days a week.
(A) Trained company representatives will be available to respond to customer telephone inquiries during
normal business hours.
(B) After normal business hours, the access line may be answered by a service or an automated response
system, including an answering machine. Inquiries received after normal business hours must be responded
to by a trained company representative on the next business day.
(ii) Under normal operating conditions, telephone answer time by a customer representative, including
wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred,
transfer time shall not exceed thirty (30) secoods. These standards shall be met no less than ninety (90)
percent of the time under normal operating conditions, measured on a quarterly basis.
(iii) The operator will not be required to acquire equipment or perform surveys to measure compliance
with the telephone answering standards above unless an historical record of complaints indicates a clear
failure to comply.
(iv) Under normal operating conditions, the customer will receive a busy signal less than three (3) percent
of the time.
(v) Customer service center and bill payment locations will be open at least during normal business hours
and will be conveniently located.
WaveDivision Franchise 26
Wave Franchise
Attachment B -Customer Service Standards
(2) Installations, outages and service calls. Under normal operating conditions, each of the following four
standards will be met no less than ninety five (95) percent of the time measured on a quarterly basis:
(i) Standard installations will be performed within seven (7) business days after an order has been placed.
"Standard" installations are those that are located up to 125 feet from the existing distribution system.
(ii) Excluding conditions beyond the control of the operator, the cable operator will begin working on
"service interruptions" promptly and in no event later than 24 hours after the interruption becomes known.
The cable operator must begin actions to correct other service problems the next business day after
notification of the service problem.
(iii) The "appointment window" alternatives for installations, service calls, and other installation
activities will be either a specific time or, at maximum, a four-hour time block during normal business hours.
(The operator may schedule service calls and other installation activities outside of normal business hours for
the express convenience of the customer.)
(iv) An operator may not cancel an appointment with a customer after the close of business on the
business day prior to the scheduled appointment.
(v) If a cable operator representative is running late for an appointment with a customer and will not be
able to keep the appointment as scheduled, the customer will be contacted. The appointment will be
rescheduled, as necessary, at a time which is convenient for the customer.
(3) Communications between cable operators and cable subscribers --
(i) Refunds -- Refund checks will be issued promptly, but no later than either --
(A) The customer's next billing cycle following resolution of the request or thirty (30) days, whichever is
earlier, or
(B) The return of the equipment supplied by the cable operator if service is terminated.
(ii) Credits -- Credits for service wi116e issued no later than the customer's next billing cycle following the
determination that a credit is warranted.
(4) Definitions -
(i) Normal business hours -- The term "normal business hours" means those hours during which most
similar businesses in the community are open to serve customers. In all cases, "normal business hours" must
include some evening hours at least one night per week and/or some weekend hours.
(ii) Normal operating conditions --The term "normal operating conditions" means those service
conditions which are within the control of the cable operator. Those conditions which are not within the
control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are
ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-
per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the
cable system.
(iii) Service interruption -- The term "service interruption" means the loss of picture or sound on one or
more cable channels.
WaveDivision Franchise 27
JEFFERSON COUNTY, WASHINGTON
ACCEPTANCE OF RESOLUTION N0.08-13
The undersigned, WaveDivision I, LLC (Wave), a ]aelaware limited liability company,
hereby wholly accepts Jefferson County Resolution No. 08-13 Granting A Nonexclusive
Franchise which was adopted by the Jefferson County Board of Commissioners on the 4th day of
February, 2013 and provides that:
Jefferson County, Washington grants Wave the right, privilege, authority, and franchise
to install, construct, repair, replace, maintain, relocate, extend, remove, operate, and use
Facilities in, upon, over, under, along, through, and across the Franchise Area pursuant to the
terms of the Franchise Agreement.
This Acceptance of the Franchise is unconditionally made without reservation and is expressly
part of the Franchise Agreement, which is hereby incorporated by reference. Wave hereby
accepts all of the rights and privileges of the Franchise subject to all of the terms, conditions;
duties, and obligations provided therein.
IN TESTIMONY WHEREOF said Wave has caused this written Acceptance to be
executed in its name b its undersigned authorized signer, thereunto duly authorized on the
2~ day of L ~ (/lp , 2-13'
doI 3
/ / /~ // r //~ .[ Notary Public
Piirit Name: (~jpY~j/d i' ~~, C.V(~J.S/~~i~j,, State of Washington
"" F KRISTEN ANN TURNBULL
~ My Appointment Expires Mar 1, 2011
Title: f~ ~ c~ ~ ~~~:'~tt ~~~)rs
STATE OF WASHINGTON
L ss.
COUNTY OF Y~ 1 sG p
I ce t tha I know or h ve satisfactory evidence that ( ~ ~~n^ ,known to be
the \1 ~ U~ 4 (~.h~it~ ~ ~ of WaveDivis' n I, LLC is t e person who appeared before
me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was duly
authorized to execute the instrument on behalf of the corporation, and acknowledged it to be the free and
voluntary act of such party for the uses and purposes herein descri{bred.
1 El Nnde/~my ha~~Id^offici/al seal this ~ day of ~{~i W ~~ ~ , 2013.
`C~((lt~,- V - ~ /gyp ~~
Notary Public m and for the State of Was mgton residin at~OQ.,~ ~~~(it~(~
My commission expires '~(,tl'(~(~1 i s
WaveDivision Franchise 2g
Department of Public Works
O Regular Agenda
Page 1 of 3
Jefferson County
Board of Commissioners
Agenda Request
To: Board of Commissioners
Philip Morley, County Administrator
From: Frank Gifford, Public Works Director ~.f~
Agenda Date: February 4, 2012
Subject: Wave Division I, LLC Cable N 8 Telecommunications Franchise
Workshop and Public Hearing
Statement of Issue:
WaveDivision I, LLC (Wave) has applied to Jefferson County for a nonexclusive
franchise to construct, maintain, and operate cable N and telecommunications
facilities in County rights-of-way in eastern Jefferson County. Public Works has
submitted a Resolution to the Board granting a franchise to Wave. The Board has
scheduled a public hearing. Public Works has complied with the public notice
requirements of RCW 36.55 and posted the Franchise Resolution and public hearing
notice on the County's Internet home page.
Analysis/Strategic Goals/Pro's 8 Con's:
Wave currently provides cable television and telecommunications services in Jefferson
County under a Temporary Franchise granted by the Board on February 6, 2012. This
Franchise would replace Wave's Temporary Franchise.
Significant Franchise terms and conditions:
• Section 2 Franchise describes the Franchise terms and conditions. The Franchise
constitutes a binding contract between Jefferson County and Wave. The franchise
would be for 10 years. The Board could grant Wave a 5-year Franchise extension if
Wave within 3 years meets specified conditions related to implementing system
upgrades and complying with the Federal Communications Commission's (FCC)
customer service and technical standards.
• Section 3 Performance of Work establishes the requirements for Wave to install
and operate facilities in County rights-of-way.
• Section 4 Relocation describes the process and requirements for Wave to relocate
its facilities in County rights-of-way in order to accommodate County projects.
Department of Public Works
O Regular Agenda
Page 2 of 3
• Section 6 Rights and Powers Reserved to the County requires Wave to pay the
County a franchise fee equal to 5% of the gross revenues from its cable TV business
in Jefferson County. This is a typical cable N franchise requirement that is
authorized by the Federal laws regulating cable N. It is a also a condition of
Wave's Temporary Franchise and its Franchises in Port Townsend, Port Angeles,
Kitsap County, and Clallam County. This section also requires Wave to reimburse
the County for its expenses related to developing the Franchise.
• Section 7 Indemnification indemnifies the County against third party claims
related to Wave's negligence.
• Section 8 Insurance establishes Wave's insurance requirements.
• Section 10 Customer Service requires Wave to comply with FCC customer service
standards for cable TV system operators. It also requires Wave to provide reports
to the County regarding its compliance.
Section 11 Technical Standards requires Wave to comply with FCC technical
standards and provide reports describing the performance of its system.
• Section 12 Programming and Services establishes broad categories of
programming that Wave is required to provide.
• Section 13 Cable Service Coverage and Extensions establishes criteria for
extending cable service to new areas.
• Section 16 Cable Service Upgrades lists upgrades that Wave proposes to make to
the cable system. The County will consider these upgrades when considering
whether to extend the Franchise as provided for in Section 2.
• Section 19 Franchise Breaches, Damages, and Termination establishes an
administrative process for addressing Franchise violations.
• Section 20 Liquidated Damages lists Franchise violations that could result in the
County imposing liquidated damages and the amount of those damages.
Fiscal Impact/Cost Benefit Analysis:
The Franchise requires Wave to reimburse Public Works for its staff time expense in
preparing the Franchise and for the expense of publishing and posting the public
hearing notice and filing the Franchise with the County Auditor.
Recommendation:
Prior to the public hearing, Public Works will conduct a brief workshop and answer
questions regarding the Franchise Resolution.
After the close of the hearing, the Board could:
• Consider the comments received and decide whether to grant the Franchise or
• Direct Public Works to compile the comments and prepare responses for review by
the Board at a later date.
If the Board decides to grant the Franchise, the Commissioners should sign all three
copies of the Franchise Resolution and return them to Public Works to send to Wave
for acceptance.
Department of Public Works
O Regular Agenda
Page 3 of 3
Department Contact: Jim Pearson, 385-9162
Reviewed By:
r~
~,, l~~~~
Phili Orley, Cou y Administ or Date
r ~, ~ ~~
CONTRACT WITH: WaveDivision I, LLC
(Contractor/Consu Rant)
CONTRACT FOR: Cable TV and telecommunications franchise
COUNTY DEPARTMENT:
For More Information Contact:
Contact Phone #:
RETURN TQ: Jim Pearson
AMOUNT: NA
Public Works
Jim Pearson NOV 2 9 2012
162 .~..e..~,,,.M...... _ _. .._ _rv----
RETURN BY:
Revenue: NA
Expenditure: NA
Matching Funds Required: NA
Sources(s) of Matching Funds NA
PROCESS: Exempt from Bid Process
Consultant Selection Process
Cooperative Purchase
Competitive Sealed Bid
Small Works Roster
Vendor List Bid
RFP or RFQ
X Other
Step 1: W BY /, //
Review by: l~ ! ~ ~~_
p - Date Reviewed:
APPROVED FORM Returned for revision (See Comments)
Comments
Step 2: REVIEW BY P~tO~SECUTIN TT EY
Review by: j~
Date Reviewed: 'Z )2
APPROVED AS TO FORM Retu ed for revision (See Comments)
Comments
Step 3: (If required) DEPARTMENT MAKES REVISIONS & RESUBMITS TO
RISK MANAGEMENT AND PROSECUTING ATTORNEY
Step 4: CONTRACTOR/CONSULTANT SIGNS APPROPRIATE NUMBER OF
ORIGINALS
Step S: SUBMIT TO BOCC FOR APPROVAL
Submit originals and 9 copies of Contract, Review Form, and Agenda Bill to BOCC Office.
Place "Sign Here" markers on all places the BOCC needs [o sign.
MUST be in BOCC Office by 5 p.m. TUESDAY for the following Monday's agenda.
(This form to stay with contract throughou the contract review process.)