• 1. DEFINITIONS
• 2. GRANT OF CABLE FRANCHISE
• 3. SERVICE AVAILABILITY
• 4. PROVISION OF ACCESS CHANNELS AND ACCESS SUPPORT
• 5. CABLE SERVICE TO COMMUNITY FACILITIES
• 6. COMMUNITY PROGRAMMING NEEDS
• 7. PROVISION OF INSTITUTIONAL NETWORK
• 8. CONSTRUCTION WORK REGULATION BY CITY AND UNDERGROUND CONDUIT USE BY GRANTEE
• 9. CABLE SYSTEM COMPLIANCE
• 10. WORK BY OTHERS, CONSTRUCTION BY ABUTTING OWNERS, ALTERATION TO CONFORM WITH PUBLIC IMPROVEMENT
• 11. COMPLIANCE WITH CITY CHARTER
• 12. CONSTRUCTION, MAINTENANCE, EXPANSION, RECONSTRUCTION, AND EXCAVATION
• 13. CONSUMER SERVICE STANDARDS
• 14. COMPENSATION TO THE CITY
• 15. ACCOUNTS, RECORDS, REPORTS AND INVESTIGATIONS
• 16. ASSIGNMENT OF FRANCHISE
• 17. VIOLATIONS
• 18. BOND AND LETTER OF CREDIT
• 19. INSURANCE
• 20. INDEMNITY
• 21. NOTICES
• 22. FORFEITURE AND TERMINATION
• 23. EMERGENCY OVERRIDE
• 24. GOVERNING LAW
• 25. FORCE MAJEURE
• 26. SEVERABILITY AND PREEMPTION
• 27. ACCEPTANCE OF FRANCHISE
• 28. EFFECTIVE DATE
• 29. RATE REGULATION
• 30. GENERAL PROVISIONS

CITY OF RICHLAND CABLE TELEVISION FRANCHISE

Ordinance No. 17-98

AN ORDINANCE GRANTING TO Falcon Video Communications, L.P. OF NORTHERN NEW JERSEY, INC., DOING BUSINESS AS Falcon Video Communications, L.P. OF WASHINGTON, A FRANCHISE FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING, OPERATING AND USING A CABLE SYSTEM IN PUBLIC STREETS, ALLEYS, AND RIGHTS-OF-WAY IN THE CITY OF RICHLAND TO PROVIDE CABLE SERVICE; PROVIDING FOR THE CONDITIONS GOVERNING THE CONSTRUCTION, EXPANSION, USE, RECONSTRUCTION, EXCAVATION, MAINTENANCE AND OPERATION OF SUCH; PROVIDING FOR A BOND AND INSURANCE; PROVIDING FOR THE REGULATION OF WORK BY OTHERS, CONSTRUCTION BY ABUTTING OWNERS AND REQUIRING ALTERATION TO CONFORM WITH PUBLIC IMPROVEMENTS; PROVIDING FOR THE PROVISION OF PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS CHANNELS AND AN INSTITUTIONAL NETWORK; PROVIDING FOR THE COMPENSATION FOR THE PRIVILEGES CONFERRED UNDER THIS FRANCHISE; PROVIDING FOR ACCOUNTING AND OTHER INFORMATION; PROVIDING FOR CONDITIONS OF TRANSFER; PROVIDING AN INDEMNITY CLAUSE; PROVIDING FOR CONSEQUENCES OF FRANCHISE VIOLATIONS; PROVIDING FOR COMPLIANCE WITH EXISTING LAWS; PROVIDING FOR WRITTEN ACCEPTANCE OF THE TERMS OF THIS FRANCHISE; AND PROVIDING FOR AN EFFECTIVE DATE.

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF RICHLAND:

For the purpose 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 number include the singular number and words in the singular number include the plural number. The words “'shall” and “will” are mandatory and “may” is permissive. Words not defined herein shall be given the meaning set forth in the Communications Act of 1934 as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, if not defined there, the words shall be given their common and ordinary meaning.

1.1 “Access Channel” means a dedicated channel for public or educational or governmental institutional use, be it audio, video or data, as provided for in Section 611 of the Cable Act.

1.2 “Additional Access Channels,” as defined in Section 4.1.

1.3 “Affiliate” means the same as that term is defined in Section 28.02.020, (Definitions) Title 28, Telecommunications Title of the City of Richland Municipal Code.

1.4 “Allocation Percentage” means the number of Franchise Area Subscribers divided by the number of total System Subscribers.

1.5 “Cable Act” means the same as that term is defined in the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.

1.6 “Cable Service” shall mean:

(1) the one-way transmission to subscribers of:

(a) video programming, or
(b) other programming service, and
(2) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

1.7 “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 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 (1) or more television broadcast stations; (B) a facility that serves Subscribers without using any Public Rights-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 Communications Act of 1934, except that such facility shall be considered a Cable System to the extent such facility is used in the transmission of video programming directly to subscribers, including but not limited to, an Open Video System, as defined under Federal Law.

1.8 “Channel” means a portion of the electromagnetic frequency spectrum which is capable of delivering both the audio and video portions of a television channel.

1.9 “City” means the City of Richland, a municipality incorporated under the laws of Washington.

1.10 “City Council” means the elected governing body of the City of Richland, Washington.

1.11 “City Property” means the same as that term is defined in Section 28.02.020, (Definitions) Title 28, Telecommunications Title of the City of Richland Municipal Code.

1.12 “City Requirements” means all laws, rules, resolutions, regulations, policies and directives of general application of the City of Richland, in effect at present or to be adopted in the future by the City Council.

1.13 “Closed Channel” is an Access Channel that is not available for receipt by subscribers without special equipment or authorization, on which audio, video and data may be transmitted.

1.14 “Converter” means an electronic device which converts cable channel frequencies which are not normally receivable by some television sets to an appropriate channel which permits a Subscriber to view signals included in the service being delivered, according to a designated tuning or channel selector dial.

1.15 “Control” or “Controlling Interest” means actual working control in whatever manner exercised.

1.16 “City Manager” means the City Manager or any successor, or his or her designee.

1.17 “Days” means calendar days unless otherwise specified.

1.18 “Direct Cost,” as defined in Section 7.7.1.

1.19 “Effective Date,” as defined in Section 28.

1.20 “Extended Term,” as defined in Section 2.2.

1.21 “FCC” refers to the Federal Communications Commission.

1.22 “Franchise” means this contract between the City and Grantee.

1.23 “Franchise Area” means all of the geographic area within which the City of Richland owns or controls the Public Rights-of-Way, at present or in the future, located within the full-purpose annexed areas of the City of Richland.

1.24 “Grantee” means Falcon Video Communications, L.P. of Northern New Jersey, Inc. doing business as Falcon Video Communications, L.P. of Washington, or any successor as provided for herein.

1.25 “Gross Revenue” means any and all consideration of any kind or nature, including without limitation, cash or credits received by Grantee or Affiliates which is derived from the operation of Grantee’s Cable System to provide Cable Services. It is the intent of the parties to include in the term Gross Revenue all consideration to Grantee and Affiliates to the fullest extent allowed by law. For purposes of this definition, the term “Affiliate” is limited to an entity acting as a cable operator providing a service authorized by this Franchise.

Gross Revenue includes by way of illustration and not limitation, all fees charged Subscribers for any and all Cable Services provided by Grantee over the Cable System, any charges or fees or city utility taxes imposed on the Grantee by the City by this Franchise and taxes imposed on Grantee by Title 5, Licensing and Taxing, § 5.20.090 of the City Code, that are passed through from the Grantee as a line item paid by Subscribers, and all compensation received by Grantee or Affiliates from any source which is derived from the operation of the Cable System to provide Cable Services, such as sales or commissions for any product or services derived from the operation of the Cable System to provide Cable Services and sales or commissions which are paid to Grantee as compensation for promotion or exhibition of any products or services on the Cable System.

Gross Revenue does not include any revenue not actually received, even if billed (e.g., bad debt), nor taxes which are imposed by law directly on the Subscriber but collected by the Grantee and passed on to other governmental entities, such as the local and state sales tax.

Gross Revenue includes an allocated portion of all revenue derived by Grantee or Affiliates pursuant to regional or national compensation arrangements for any service or activity derived from the operation of a Cable System to provide Cable Services in the Franchise Area, e.g. advertising and sale. The allocation shall be based on the number of subscribers in the Franchise Area divided by the total number of subscribers relevant to such regional or national arrangements.

Revenue of an Affiliate derived from the operation of the Cable System to provide Cable Services shall be Gross Revenue to the extent the treatment of such revenue as revenue of Affiliate and not Grantee has the effect of avoiding the payment of franchise fees which would otherwise be paid to the City. In no event shall revenue of an Affiliate be Gross Revenue to the Grantee if such revenue is otherwise subject to franchise fees to be paid to the City.

1.26 “Headend” means a facility for signal reception and/or dissemination on the Cable System including all related equipment such as cable, antennas, wires, satellite dishes, monitors, switchers, modulators, computers, software, and processors for television Broadcast signals.

1.27 “Incremental Cost,” as defined in Section 7.7.3.

1.28 “Indirect Cost,” as defined in Section 7.7.2.

1.29 “I-Net Fiber,” as defined in Section 7.1.

1.30 “Institutional Network” or “I-Net” means a communications network as provided for in Section 7.

1.31 “Interconnect,” “Interconnected” or “Interconnection” means the provision of an electronic linkage between the Grantee’s Cable System and any other designated Cable System for the purpose of transmitting PEG Access Channels and I-Net signals to and from the Interconnected cable systems.

1.32 “Normal Operating Conditions” is defined as being those service conditions which are within the control of the Grantee. Those conditions which are ordinarily within the control of the Grantee include, but are not limited to, special promotions, pay-per-view events, rate increase, regular peak or seasonal demand periods, and maintenance or upgrade of the System, except for unscheduled and/or emergency equipment replacement, testing required by the FCC or this Franchise. Those conditions which are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, programmer originated interruption, and severe weather. The definition of Normal Operating Conditions is relevant in assessing compliance with telephone answering time, installations, service calls, and repair of Service Interruptions.

1.33 “Open Video System” or “OVS” means the same as that term is defined in Section 28.02.020, (Definitions) Title 28, Telecommunications Title of the City of Richland Municipal Code.

1.34 “Open Video Service” means the same as that term is defined in Section 28.02.020, Chapter 28.02 (Definitions) Title 28, of the Code.

1.35 “Person” means any corporation, partnership, proprietorship, individual or organization or any natural person, excluding any governmental entity.

1.36 “Public Rights-of-Way” means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, easement or similar property in which the City holds any property interest or exercises any rights of management or control and which, consistent with the purposes for which it was acquired or dedicated, may be used for the installation and maintenance of a Cable System. No reference in this Franchise to a “Public Right-of-Way” shall be deemed to be a representation or guarantee by the City that its interests or other rights in such property are sufficient to permit its use for the installation and maintenance of a Cable System and/or Transmission Network, and the Grantee shall be deemed to gain only those rights which the City has the right and power to give.

1.37 “Residential Dwelling Unit” means each home, house, building, or other structure that normally accommodates the living quarters of one (1) family, and each apartment, condominium, or co-operative unit that normally accommodates the living quarters of one (1) family in any multiple-unit building or complex of multiple-unit buildings; provided, however, that if the Grantee has not been granted the authority by an owner or association of owners to extend its facilities to individual apartments, condominiums, and co-operative units within the interior of such multiple-unit buildings or complex of multiple-unit buildings, then any such multiple-unit building or complex of multiple-unit buildings shall be considered a single Residential Dwelling Unit.

1.38 “Service Interruption” or “Outage” is defined as being a Cable System malfunction resulting in the loss of picture or sound on one or more channels affecting more than one Subscriber. The definition of Service Interruption or Outage affects the timing of when the Grantee must respond to a Service problem.

1.39 “Standard Drop” means the cable connection between the subscriber’s premises and the cable system up to a maximum length of one hundred fifty (150) feet measured from six inches (6") outside the nearest exterior wall of the Subscriber's premises to the Cable System.

1.40 “Subscriber” means any person within the City who lawfully receives any Cable Service delivered by the Cable System.

1.41 “Upstream” means a transmission to a Headend from any other point on the Cable System, including Interconnection points.

SECTION 2. GRANT OF CABLE FRANCHISE 2.1 There is hereby granted, subject to Grantee’s acceptance of the terms of this Franchise as provided herein and the City’s prompt receipt of monetary compensation for a term as described below, unless otherwise terminated as provided for herein, the non-exclusive right and privilege to have, acquire, construct, expand, reconstruct, maintain, use and operate in, along, across, on, over, through, above and under the Public Rights-of-way of the City, a Cable System to provide Cable Service. In the event the Grantee or its Affiliate either seeks to provide or to allow others to use its Cable System to provide non-cable services, Grantee agrees to obtain all lawfully required city, state or federal permits, consents or franchises or other required authorizations.

2.2 The term of this Franchise shall commence on September 8, 1998 and shall extend for a period of four (4) years from the Effective Date. Grantee may request an extension of the term of this Franchise for an additional eleven (11) years (“Extended Term”), provided that Grantee has complied with the conditions set forth in Section 7 as to the I-Net Fiber requirements and has notified the City of the compliance with Section 7 within eighteen (18) months from the Effective Date of the Franchise, as set forth below. The City may deny the Extended Term only if the Grantee has failed to comply with the conditions set forth in Section 7 and this Section.

Grantee shall have a right to obtain such Extended Term if Grantee is (1) in substantial compliance with the material terms and conditions of this Franchise; and (2) has fully complied with Section 7 concerning the I-Net Fiber requirements, all as affirmatively determined by the City Manager and evidenced in the City Manager’s written report to the City Council.

2.3 Nothing in this Franchise shall authorize Grantee to attach any part of its Cable System to any City Property or infrastructure or to use any City-owned conduits or facilities until Grantee has all required agreements, permits, licenses from the City, supported by independent consideration, for such rights of attachment or use.

2.4 Any other Franchise granted by the City which allows the provision of Cable Service shall be on a competitively neutral basis, taking into account without limitation Grantee’s obligations with respect to PEG Access and the Institutional Network. To the extent within the City’s control, this provision shall apply to all other similarly situated multichannel video providers, including without limitation, open video system providers.

SECTION 3. SERVICE AVAILABILITY 3.1 Throughout the term of this Franchise, the Grantee covenants and agrees to construct, operate, maintain and upgrade the Cable System so as to make all Cable Services distributed over the Cable System available to any person within the Franchise Area in accordance with the terms, schedule, sequence and procedures established in this Franchise, except for any such service which is provided on a test basis and provided, however, that a new Cable Service may be introduced on a phased basis in different areas of the City over a period no longer than one year. Further, the Grantee and each Affiliated Person shall ensure that access to any Cable Service is not denied to any group of potential Subscribers because of the income of the residents of the area in which such group resides or geographic location (subject to Section 3.2). It shall be the right of all Subscribers to receive continuously all available Cable Services insofar as their financial and other obligations to the Grantee are honored. The Grantee shall continuously monitor the implementation of the commitments set forth in this Section.

3.2 Line Extension Policy. Grantee shall extend its cable system in the Franchise Area pursuant to the following requirements:

3.2.1 Grantee shall extend its cable system and make cable service available to every existing residential area within the Franchise Area, if requested, whenever density of at least thirty (30) Residential Dwelling Units for overhead construction and forty-five (45) Residential Dwelling Units for underground construction per cable mile (or any proportionate amount thereof measured over a shorter or longer distance) is realized, as measured from the existing facilities of Grantee's cable system in the Franchise Area. For purposes of this section, density per cable mile shall be computed by dividing the number of Residential Dwelling Units in the area by the length, in miles or fractions thereof, of the total amount of aerial or underground cable necessary to make service available to the Residential Dwelling Units in such area in accordance with Grantee's system design parameters. The cable length shall be measured from the nearest point of access to the then-existing system, provided that extension is technically feasible from that point of access, and located within the Public Rights-of-Way. The total cable length shall exclude the drop cable necessary to serve individual Subscriber premises.

3.2.2 Grantee shall extend its cable system necessary for the provision of cable service and make cable service available to any business in the Franchise Area when the business subscriber agrees to pay for the labor costs incurred and materials used in making the extension.

SECTION 4. PROVISION OF ACCESS CHANNELS AND ACCESS SUPPORT 4.1 Minimum Channel Capacity. In addition to the current two (2) Access Channels in the Franchise Area, one being currently activated as Channel 13, within ninety (90) days after the City Manager request, the Grantee shall activate the second and a third Access Channel in the Franchise Area, for a total of three activated Access Channels. Of the three activated Access Channels, the City Manager shall dedicate one channel for Public use, one for Governmental use and one for Educational use. The Grantee shall make available to the City and to be activated within ninety (90) days after a request of the City Manager when the utilization requirements of Section 4.5 are met, provided that written documentation is presented that evidences meeting the utilization criteria, up to two (2) additional activated Access Channels in the Franchise Area (“Additional Access Channels”), but with no more than one of the Additional Access Channels being a Public Access Channel. However, in no event shall there be more than a total of five (5) activated Access Channels. The City Manager shall, in accordance with the provisions this Section determine the number of Access Channels to be used and allocate to various entities access to the Access Channels in the Franchise Area to meet their requirements. The request by the institution or organization must provide the City Manager with sufficient plans for operating expenses, technical configuration, channel use, and public purpose. In the event that making available a Channel for Access Channel purposes requires displacement of other programming, the City shall give Grantee at least 90 days written notice. The Grantee shall provide the interconnection and electronics on the Cable System such that “live” or videotaped programming may be cablecast via Access Channels from the Central Fire Station from the Effective Date and from Richland City Hall by March 1, 1999, from Washington State University by July 1, 1999, and at one additional site selected by the City, taking due consideration that the cost for such electronics on the Cable System is comparable to the expenses for the electronics on the Cable System allowing cablecasting from the Richland City Hall and from the Washington State University sites. The Grantee shall not be responsible for the electronics on site, or any other customer premises equipment for such cablecast.

4.2 Allocation of PEG Channels. The City Manager may designate Access Channel use in the Franchise Area for use by educational or governmental access users or organizations at its sole discretion, including order and priority of programming. The City Manager may designate one Access Channel dedicated exclusively for either educational or governmental uses or may combine users on a shared basis on activated Access Channels in the Franchise Area.

4.3 Rights to PEG Programming. Grantee shall have no rights to Access Channel Programming by virtue of cablecasting or distributing such programming over its Cable System, except for Grantee’s right to transmit such programming to all the Subscribers receiving a signal from the Cable System headend serving the Richland Franchise Area. All rights to programming content and intellectual property of any type transmitted by Grantee shall remain the property of the owner/programmer, regardless of the individual or entity requesting transmission. No intellectual property transmitted over Access Channels or bandwidth shall be retransmitted by Grantee or any Affiliates in whole or in part without the consent of its owner.

4.4 Use of Public, Educational and Governmental Channels. The Access Channels in the Franchise Area shall be placed under the authority of the City Manager for use related to governmental and educational purposes. Grantee will manage and coordinate individual public programming, subject to the City’s reservation of exercising its rights over such public programming in accordance with the Cable Act, after one hundred and eighty (180) days’ notice. Access Channel use may include sponsorships and underwriting but with acknowledgment of those sponsors or underwriters being limited to a print in alpha numeric style, as reasonably agreed to by the parties. No restrictions shall be placed on the use of these Access Channels for a public purpose of a governmental entity or curriculum requirement of an educational institution, except as provided in this Franchise or by law. Except as provided by law, Grantee shall not exercise editorial control over programming of any Access Channel. At no time shall the Grantee interrupt at its headend or hub site the signal provided on any Access Channel without the express consent of the City, except in circumstances beyond Grantee’s control.

4.4.1 In addition to the current Closed Channel at the Central Fire Station, 90 days after the acceptance of this Franchise, the City Manager may, from time to time, restrict the cablecast of one or more Access Channels by use of a scrambling device (or similar equipment) to allow reception only at selected locations to provide Closed Channels to be accessed at those locations. Grantee shall furnish all equipment necessary sixty (60) days after the City Manager request for use of the Closed Channel at City designated facilities, but not to exceed 100 such descrambling devices and no more than two scrambling devices of the type currently in use.

4.4.2 Bi-Directional Usage. In the event Grantee has the technical ability and available capacity to provide two-way communications for data or other use to the subscriber network, beyond that currently available, it may allow the City to have such bi-directional access to the subscriber network, to the extent it is available after Grantee’s own use, for meter reading and for utility load control uses, and such other uses mutually agreed upon by the parties. In the event there is a charge for such bi-directional usage, the City will be charged at the Grantee’s most favorable rate, subject to acceptance by the City.

4.5 PEG Activation Utilization Criteria: For the purposes of this Section, the following shall apply:

Additional Access Channels may be activated, upon request by the City Manager, when the average daily use of the existing:

4.5.1 Governmental and Educational Access Channels are used for access purposes with non-commercial Governmental and Educational programming of any type that is distinct and non-repetitive during six of the fifteen hours between 7:00 a.m. and 10:00 p.m., during any consecutive ten (10) week period.

4.5.2 Public Access Channels are used for access purposes with non-commercial public programming of any type that is distinct and non-repetitive during twelve of the fifteen hours between 7:00 a.m. and 10:00 p.m., during any consecutive ten (10) week period.

4.5.3 Except for character-generated announcements, the programming of additional Access Channels required shall be distinct and non-repetitive of the previous Access Channel. Based upon this criteria, the Grantee shall, within ninety (90) days following a request by the City Manager, provide another designated Access Channel in the Franchise Area for this purpose. The City Manager shall have the right to designate whether each such additional Channel will be utilized in whole or in part for public access, educational, or government programming.

4.5.4 Minimum Usage. Additional Access Channels must carry a minimum annual average of four (4) hours per day of non-commercial video programming that is distinct and non-repetitive, five (5) days per week, beginning six (6) months after activation of the channel and thereafter. If an Additional Access Channel fails to meet the continuing criteria of programmed usage for one hundred eighty (180) continuous days of operation, such channel shall revert to the Grantee for whatever use it deems appropriate, until the City can demonstrate that the minimum utilization criteria set forth herein will be achieved, however, the City may not request reactivation of such a channel no sooner than thirty (30) months after such reversion to Grantee.

4.6 Access Channel Resources. Grantee shall provide the following:

4.6.1 Staffing and Equipment. The Grantee shall provide the technical advice necessary to transmit access programming on the Access Channels as directed by the City, as applicable, on an as-needed basis. Grantee shall provide on a timely and as needed basis use of its studio and all necessary equipment for access users to produce and edit programming, upon reasonable advance notice. Grantee shall repair and replace any damaged equipment of Grantee, except for equipment damaged due to the neglect or improper use by an access user. Such staff and equipment shall be available during normal business hours at no charge to the access user and at other times for a reasonable and fair charge consistent with making access studio and/or equipment widely available. For the purposes of this Section, normal business hours shall be considered to be the hours of 8:00 a.m. to 5:00 p.m. Monday through Friday, excluding legal holidays.

4.6.2 With respect to City access, the Grantee shall provide up to forty (40) hours per month of use in the aggregate of the Grantee’s studio, remote production van, equipment, staffing and technical services for production of live and video taped Educational and Governmental programs (“Studio, staff and equipment time”). Remote location use of the van requires fourteen (14) days prior notice by the City. The City will reimburse Grantee’s actual production costs in excess of forty (40) hours averaged monthly. Grantee shall provide such equipment and facilities to allow live cablecast from the City Council Chambers, Washington State University, and at one additional site selected by the City, on an Access Channel (and/or on the I-net if provided for by the Grantee). Sixty (60) days after the City has the ability to cablecast live or with videotapes from the City Council Chambers, the studio staff and equipment time shall be reduced to no more than twenty (20) hours per month thereafter with reimbursement in excess of twenty (20) hours per month.

4.6.3 Training. Grantee shall provide up to four (4), four (4) day workshops of training with no more than eight (8) City personnel in attendance at any one workshop, with ten (10) days’ prior notice during the term of this Agreement. At least once every month, the Grantee shall have staff available to conduct free video training workshops for the public, Educational and City personnel of up to seven (7) hours of one day in duration to train access users in the proper use of the studio and production equipment and in proper cable casting technique.

4.7 Grantee Capital Contributions and Other Support for Access Channels. Grantee shall provide funds for production facilities and equipment for Access Channels and the Institutional Network in an amount of $250,000 during the Franchise Term, and $50,000 per year, paid pro rata to the City quarterly by the Grantee for the Extended Term, if any, after the initial four (4) years. The initial term funds of $250,000 will be provided to the City promptly upon request by the City Manager. All such facilities and equipment shall be for the benefit of the City and its residents and shall be subject to the sole control of the City. The City shall provide annually a detailed accounting of the capital expenditures with such funds. At the termination of this Franchise, any unspent funds would be returned to the Grantee to be refunded to the then subscribers on a pro rata basis. Grantee, in its discretion, may pass along such cost as a line item to Subscribers, in accordance with and to the extent allowed by federal law.

Grantee shall continue to provide playback services for the Access Channels originating at Grantee’s studio and shall provide and maintain all its equipment, as listed in Section 4.6.1 currently located at 639 North Kellogg, Kennewick, Washington, for Access Channel purposes.

4.8 Agreement as to PEG Contribution. The Grantee acknowledges that all contributions, services, equipment, facilities, support, resources, and other activities to be paid for or supplied by the Grantee pursuant to or in connection with its performance under this Section are for the benefit of all Subscribers and the public. For purposes of this Franchise the Grantee agrees that such contributions, services, equipment, facilities, support, resources, and other things of value are not deemed to be (i) "payments-in-kind" or involuntary payments chargeable against the compensation to be paid to the City by the Grantee pursuant to Section 14 hereof, or (ii) part of the compensation to be paid to the City by the Grantee pursuant to Section 14. The City shall provide Grantee by August of each year the amount of the capital contributions in Section 4.7 to be expended by the City in the following calendar year for capital expenditures under this Section and Section 7.

4.9 Access Channel Interconnection. For the purpose of making all Access Channels available to all subscribers, Access Channels on Grantee’s Cable System shall be capable of being interconnected with other Cable Systems throughout the City, for cablecast of the Access Channels and actual interconnection shall be implemented upon request of the City Manager provided that 1) interconnection is technically feasible; 2) Grantee and the other operator agree upon reasonable interconnection arrangements, including an allocation of the costs of interconnection between Grantee and such other operator that is reasonable in light of the relative benefits and burdens, including consideration of support (capital and operational) provided for Access Channel purposes, including equipment in use for Access Channels purposes at the time of interconnection. Interconnection with multi-channel video providers who are not Cable Systems under the Cable Act shall not be required unless the building where a multi-channel video provider requesting interconnection is in compliance with an open access ordinance to be enacted by the City.

4.10 Demographics Research. The Grantee shall promptly provide to the City copies of any viewership and/or demographics information it obtains from local area surveys concerning Access Channels and results and analyses of that portion of any Subscriber surveys conducted by or at the request of the Grantee which deal with programming on Access Channels, provided, however, that with respect to any such ratings and results and analyses , the Grantee shall redact any personally identifiable information and information concerning other programming services prior to providing such information to the City. The information provided under this subsection may be confidential and shall be subject to applicable law as provided for in Section 15.9.

4.11 Grant of Additional Cable Franchises. In the event that another franchise to offer cable service within the Franchise area is granted by the City of Richland, Grantee’s financial obligations under this Section shall be borne in part by such other franchise-holder, so that neither franchise holder is competitively advantaged or disadvantaged. To the extent within the City’s control, this provision shall apply to all other similarly situated multichannel video providers including without limitation open video system providers.

5.1 Public Primary and Secondary Schools. If requested to do so by the City Manager, within ninety (90) days Grantee shall provide during the life of this Franchise to each accredited primary and secondary public school and accredited private schools with more than 50 students located in the Franchise Area, and within one hundred fifty (150) feet of the Cable System one (1) free cable television service outlet at the most subscribed service level. Each free outlet shall include a free Converter, if necessary, and maintenance thereof by Grantee. The hardware and the installation thereof for an internal video distribution system requested by primary and secondary public school authorities shall be provided at Grantee’s cost. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit A).

Grantee will, at the City Manager’s request, provide an appropriate interface to any internal video distribution system in the school, so long as the school insures that such internal system complies with the FCC’s signal leakage and signal quality standards and does not interfere with or adversely affect the Grantee’s Cable System, including the upstream capacity. There will be no charge for cable service on any additional outlets in the school except for a pass through of any charge imposed on Grantee by a program supplier, and Grantee may impose a charge for equipment for additional outlets.

5.2 Public Institutions of Higher Education. If requested to do so by the City Manager, within ninety (90) days Grantee shall provide during the life of this Franchise to each campus of a public institution of higher education located within the City of Richland and located within one hundred fifty (150) feet of the Cable System one (1) free cable television service outlet at the most subscribed service level. Each free outlet shall include if necessary a free Converter and maintenance thereof by Grantee. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit A).

5.3 City Facilities. Upon the request of City Manager, within ninety (90) days the Grantee shall provide during the life of this Franchise to each municipal facility owned or operated by the City, as reasonably selected by the City Manager, and located within the City of Richland and located within one hundred fifty (150) feet of Grantee’s Cable System up to three (3) free cable television service outlets at the most subscribed service level. Each free outlet shall include if necessary a free Converter and maintenance thereof by Grantee. All additional cable television hardware and the installation thereof requested by City shall be provided at Grantee’s Direct cost. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit A). The City will pay the expenses to connect from the Cable System to any other City designated facility at its cost, including required customer premises equipment, for purposes of connecting Access Channel(s) or the I-Net to any other City designated facilities, including use for Close Channel.

Grantee will, within ninety (90) days of the City Manager’s request, provide an appropriate interface to any internal video distribution system in the City building, so long as the City insures that such internal system complies with the FCC’s signal leakage and signal quality standards and does not interfere with or adversely affect the Cable System, including the upstream capacity. There will be no charge for cable service on any additional outlets in the City facilities except for a pass through of any charge imposed on Grantee by a program supplier, and Grantee may impose a charge for equipment for additional outlets.

6.1 In addition to the service requirements in this Franchise and the City’s Customer Service Standards, Grantee agrees to provide locally produced commercial programming responsive to the Richland community’s needs and interest.

6.2 Grantee agrees to air a minimum of twenty (20) hours of locally produced programming per month, some of which may be commercially paid programming. Grantee agrees to use its best efforts to encourage and utilize programs produced by others. Grantee shall make its best efforts to insure that local programming meets the needs of the Benton and Franklin County areas for diverse programming on issues of local interest.

6.3 At the request of the City Manager, but no more than twice, ninety (90) days after such request, the Grantee shall furnish to all subscribers along with their monthly service statement, a list of broad categories of programming, and other services available to Grantee, subject to prior review by the City Manager. The menu to be in the format of a mailback survey for determination of the subscriber’s programming preference. The results of the survey are to be provided the City by the Grantee with any proposed change(s) in programming to accommodate subscriber’s desired revisions as indicated by the results of the survey.

6.4 The parties expressly agree that the programming described in paragraph 6.2 represent broad categories of video programming within the meaning of 47 U.S.C. 544(b) (2) (B). 6.5 Grantee shall retransmit all closed-captioned signals made available by programmers in conjunction with programming in its line-up and which are provided in order to facilitate viewing by handicapped persons. Grantee shall maintain the necessary head-end equipment to make SAP features available to Subscribers. Grantee’s obligations under this subsection do not extend to providing customer premises equipment.

7.1 Institutional Network. To obtain the Extended Term described in Section 2 of the Franchise, Grantee shall provide, install, construct and maintain for the City all the fiber optics cable, wire and other non-premises facilities or equipment (“I-Net Fiber”) for the City’s Institutional Network within eighteen (18) months after the Effective Date of the Franchise as provided herein. The Institutional Network will include approximately 51 miles of fiber optic cable, utilizing approximately 3.2 miles of existing and planned City fiber optic cables where appropriate, containing a minimum of 24 fiber strands or as specified by the City. Grantee shall also provide maintenance of the I-Net fiber detailed in this Section. The Grantee shall connect to all public sites as designated by the City in Exhibit A (subject to change of sites by the City due to cost or other consideration) with an I-Net Fiber, capable of bi-directional voice, data and video communications between all connected sites. The City and I-Net users shall be responsible to provide all premises equipment and electronics at their cost and shall operate the Institutional Network.

7.1.1 Grantee shall generally use optical fiber in the I-Net Fiber, with all amplifier cascades sufficient to attain a carrier to noise ratio of 46 dB and all applicable FCC standards.

7.1.2 Grantee shall include in its design monitoring and testing equipment on the I-Net Fiber so that the City can electronically detect and isolate any Institutional Network malfunctions.

7.1.3 Grantee shall include in its design a direct I-Net Fiber connection between Grantee’s Headend and the City’s telecommunications network control center in order to provide for video feeds and/or data that need to be routed to the Grantee subscriber network Access Channels.

7.1.4 The City shall provide the Grantee detailed construction specifications for the I-Net Fiber within ninety (90) days from the Effective Date of this Franchise. Grantee shall meet and confer with the City to clarify any of the construction specifications within ten (10) days. Grantee shall provide the City Manager the design, to include a sufficiently documented estimate of the I-Net Fiber Incremental Cost, by sites as requested by the City, to include designation of portions of the I-Net Fiber that are not lashed to the Grantee’s Subscriber’s Network but are stand alone extensions from the Grantee’s Subscriber Network being constructed to extend fiber from the City designated sites per Exhibit “A” to the Grantee’s Subscriber Network, for the above described I-Net Fiber within one hundred ninety (190) days after the Effective Date of this Franchise. The City Manager will review any changes and approve the design as promptly as possible. In the event the Grantee’s design is not approved by the City Manager or the Grantee does not accept (by written acceptance) the City’s revisions to the design within two hundred fifty (250) days from the Effective Date of this Franchise, the right to obtain the Extended Term is automatically denied. In no event shall the City have any liability for any expenses the Grantee incurs in preparation of such design. Grantee shall commence the I-Net Fiber construction within sixty (60) days from approval of the design by the City Manager. Grantee shall provide the City with monthly construction updates indicating work completed, planned construction for next month, and projected time-line for project completion in accordance with Exhibit C. The I-Net Fiber shall be fully complete and fully capable of operation within eighteen (18) months after the Effective Date of this Franchise, as tested and verified by the Grantee and approved by the City Manager.

7.2 Maintenance. Grantee shall provide demand maintenance twenty-four hours a day, seven days a week and shall maintain the I-Net Fiber to operate at or above FCC standards at all times. Grantee may charge the City a fee for maintenance of the I-Net (“Maintenance Fee”). The amount of the Maintenance Fee shall be limited to an as needed basis and shall be based upon an hourly service rate as set by the FCC, or a prorated share of any contractor’s cost, based upon each parties’ relative number of fiber strands. Such Maintenance Fee shall be applied as a credit to the Franchise Fee due the City under Section 14 on the last calendar quarter payment for each year.

Under normal operating conditions, Grantee shall respond to all outage reports within two hours and make necessary repairs within four hours of notification Monday through Friday, 6 a.m. to 10 p.m. through 6 a.m. on Saturday and Sunday. Under normal operating conditions, Grantee shall respond to degradation reports within twenty-four hours.

7.3 I-Net Fiber Ownership and Exclusive Rights: The Grantee shall own the I-Net Fiber that is lashed to and part of or included in the Grantee’s Cable System sheath, and the City shall own all other I-Net Fiber, including but not limited to, all current City-owned facilities that may be used in the I-Net and any extensions of facilities for use in the I-Net that are not lashed to or a part of the Grantee’s Cable System or in its sheath. The City shall have the irrevocable exclusive right to manage, control and use the I-Net Fiber, as provided herein.

In the event of any transfer, assignment or sale of any ownership interest whatsoever of the I-Net Fiber owned by the Grantee to any successor or other person, the Grantee shall notify the City and the prospective successor or person of the irrevocable rights of the City. In the event such notice is not given, the City may exercise all rights under law, including enjoining the prospective transfer of ownership.

In the event the Grantee is not capable of performing its obligations under this Franchise, or the Franchise is terminated by default or otherwise expires or is not renewed, the City shall have the right of first refusal to acquire the balance of the I-Net Fiber owned by the Grantee, in the event it is to be sold, transferred or assigned separate and apart from the Cable System, at fair market value for a period of sixty (60) days following the date of termination, expiration or non renewal of the Franchise, less the City’s contribution during the Franchise term to the I-Net Fiber, in accordance with 47 U.S.C. § 547 to the extent it applies.

Notwithstanding anything else in this Franchise, this provision and Section 7 shall survive this agreement and be binding on any successor under this Franchise or otherwise, and on whomever has an ownership interest in the I-Net Fiber.

7.3.1 Use.

7.3.1.1 Unless a limit upon use is specified in this Section 7, the I-Net may be used for any communications, in any form, for any non-commercial (a) governmental purpose (proprietary or governmental); (b) educational purpose; (c) public purpose, or for use of the Access Channels on the Subscriber Network. Fees may be charged by the City for use of the I-Net or for the information transmitted via the I-Net. The I-Net may be linked to any other communications network used by the City, or to any I-Net user authorized by the City (or an entity under the City’s control). Notwithstanding any other provision of the Franchise, Grantee understands that the schools and libraries in Richland may provide internet services or access to internet services to the public, schools and governmental entities over the I-Net, but it agrees that this use is not a prohibited use, and is allowed.

7.3.1.2 Appropriate uses of the I-Net include, by way of example and not limitation:

(1) Transmitting GIS and other data to and from City department and to and from the public.

(2) Linking libraries and providing terminals at library locations that allow members of the public to access library databases and other remote databases.

(3) Transmitting live and stored instructional materials (whether in the form of data, video, or otherwise) to and from schools and to the public.

(4) Providing kiosks where members of the public may access information.

(5) Providing video conferencing among governmental and educational locations and to other locations for governmental and educational purposes such as economic development and distance learning.

(6) Providing for remote permitting, meter reading, energy management, remote arraignment, utility SCADA (Supervisory Control And Data Acquisition System) and voice traffic to and from the City and I-Net users.

7.3.1.3 The City may designate an entity to manage the I-Net, but if the entity so designated is a person that provides cable service in competition with Grantee in Richland or is the City, then any fees charged to the City or to users shall not exceed the actual cost incurred by the person or the City to manage the I-Net provided, such cost does not include a reasonable profit.

7.4 Interconnection and Extensions. The City reserves the right to make interconnections in extensions or drops by itself or by the Grantee or other contractors, provided that all such interconnections to the Grantee’s Network are performed only by the Grantee at competitive commercial rates. The City shall be separately metered for power usage at Grantee’s sites for any power to the City’s equipment used exclusively on the I-Net.

7.5 Cost. The cost to the City for the installation and construction of the I-Net Fiber shall not exceed the Grantee’s Incremental Cost estimate approved in the design (as described herein) of the I-Net Fiber. There shall be no charge by the Grantee to the City or to any other authorized user for the use of the I-Net. The Incremental Cost may be paid by the City over a period of five (5) years, applied as a pro rata credit by the Grantee to each quarterly payment due the City under Section 14. Any maintenance, interconnection or extension costs shall be applied as a credit by the Grantee to each quarterly payment due the City under Section 14, with sufficient documentation for such credits.

7.6 Definition of Direct, Indirect, and Incremental Costs

7.6.1 In respect to the obligation of the City to pay for the cost of I-Net Fiber facilities to be provided by Grantee under this Franchise, the term “Direct Costs” includes only those costs specified in this Section 7 and no indirect costs. “Direct Costs” shall include:

7.6.1.1 cost of materials and equipment necessary for construction;

7.6.1.2 payments made by Grantee to subcontractors in accordance with the requirements of the subcontracts;

7.6.1.3 wages and salaries and associated taxes and benefits of Grantee’s employees performing work on the relevant portion of City-required facilities;

7.6.1.4 sales, excise, and other taxes paid by Grantee on materials, equipment, supplies and services chargeable to the relevant portion of the City-required facilities;

7.6.1.5 any labor force travel expenses directly chargeable to the work on the relevant portion of the City-required facilities;

7.6.1.6 cost of necessary licenses and permit fees, including rights-of-way construction permit fees and inspection fees, if any, related to the relevant portion of the City-required facilities, the City may review the applicability of such City permit fees, such as construction permit fees, construction impact fees, and construction inspection fees for the I-Net Fiber.

7.6.1.7 actual rental costs for the use of any necessary temporary facilities, or special machinery, equipment and hand tools used in the work on the relevant portion of the City-required facilities;

7.6.1.8 that portion directly attributable to this Franchise of premiums for insurance and bonds related to the design and construction of the City-required facilities;

7.6.1.9 any work destroyed or damaged prior to completion, not compensated by insurance or otherwise, sustained by Grantee in connection with the work, provided the damage resulted from causes other than the fault or negligence of Grantee;

7.6.1.10 costs of removal of debris on the relevant portion of the City-required facilities;

7.6.1.11 costs incurred on the relevant portion of the City-required facilities, in taking action to prevent threatened damage, injury, loss in case of an emergency affecting the safety of persons and property;

7.6.1.12 any additional sole attachment costs to Grantee; and

7.6.1.13 other costs incurred on the relevant portion of the City-required facilities in the performance of the work if, and to the extent, approved in advance in writing by the City.

7.6.2 “Indirect Costs” shall include:

7.6.2.1 salaries and other compensation of Grantee’s employees stationed at Grantee’s offices other than the work site, except as provided in Section 7.6.1.3;

7.6.2.2 overhead and general expenses, except as may be expressly included in Subsection 7.7.1.3;

7.6.2.3 Grantee’s cost of capital (debt and equity); and

7.6.2.4 costs due to the fault or negligence of Grantee, subcontractors, anyone directly or indirectly employed by any of them, or for those whose acts any of them may be liable, including, but not limited to, costs for the correction of damage, defective or nonconforming work, disposal and replacement of materials and equipment incorrectly ordered or supplied, in making good damage to property not forming a part of the work.

7.6.3 “Incremental Costs” are that portion of the Direct Costs solely attributable to the cost of materials of the I-Net Fiber for which the City is responsible for payment under this Franchise. Incremental Costs include only the Direct Costs that would not have been incurred but for the providing of such I-Net Fiber and do not include Indirect Costs. The parties agree the only significant items of Incremental Cost are the fiber strand and splicing. The Incremental Cost of fiber strand shall not exceed $0.025 per linear foot per strand.

7.7 I-Net Costs not Franchise Fees. The parties agree that there shall be no charge for the I-Net or I-Net Fiber provided by Grantee, other than the charges specified in this Section 7. The parties agree that any costs to the Grantee associated with the I-Net or I-Net Fiber provided by Grantee are not Franchise fees, and fall within one or more of the exceptions to 47 U.S.C. 542(g).

7.8 Notwithstanding any other provision of this Franchise, for any work that the City is obligated to use the Grantee to perform under this Franchise, the Grantee guarantees that the amount it charges will be consistent with the price the City could obtain through a competitive pricing process.

All construction work done by Grantee in connection with the construction, expansion, reconstruction, maintenance or repair of its facilities in the Public Rights-of-Way shall be subject to and governed by all lawful City Requirements, and applicable federal and state rules and regulations. Grantee shall place certain facilities underground and overhead according to applicable City Requirements.

9.1 Quality. All work involved in the construction, operation, maintenance, repair, upgrade, and removal of the Cable System shall be performed in a safe, thorough and reliable manner using materials of good and durable quality. If, at any time, it is determined by the City or any other agency or authority of competent jurisdiction that any part of the Cable System, including, without limitation, any means used to distribute signals over or within the Cable System, is harmful to the health or safety of any person, then the Grantee shall, at its own cost and expense, promptly correct all such conditions.

9.2 Technical Specifications of Cable System. The Grantee shall install all aerial and underground cables and wires in a manner consistent with lawful City Requirements and in compliance with all applicable laws, ordinances, and safety Requirements including but not limited to the Federal Communications Commission, Federal Aviation Administration, National Electric Code, National Electric Safety Code, National Cable Television Association Standards of Good Engineering Practices.

9.3 Tree Trimming.

9.3.1 Upon ten (10) days’ written notice provided to the City Manager, except in an emergency of imminent danger to persons or property, the Grantee may trim trees or other vegetation owned by the City or encroaching upon the public rights-of-way to prevent their branches or leaves from touching or otherwise interfering with its wires. All trimming or pruning shall be at the sole cost of the Grantee.

9.3.2 The Grantee may contract for said trimming or pruning services with the City or any person approved by the City prior to the rendering of said services.

9.3.3 The Grantee shall maintain its system in a safe, suitable condition and in good order and repair. If the City finds that clearance requirements of trees and vegetation established pursuant to the National Electric Safety Code are violated, the City shall establish a reasonable time for the Grantee to perform necessary cutting and trimming. If the required work is not done within the established time frame, the City may perform the work itself or have it done and collect all reasonable costs thereof from the Grantee.

9.4 FCC Testing. The Grantee shall maintain for inspection by the City a copy of the final report on each proof of performance test required by Part 76, Subpart K, of the Rules and Regulations of the FCC or any successor regulation or law. If the FCC shall cease to require such tests, or if the FCC’s regulations do not apply pursuant to 47 CFR § 76.601(c), the Grantee shall continue to conduct such tests at least once every calendar year (at intervals not to exceed 14 months), and shall maintain the resulting test data on file at its local office for at least five (5) years. The City subsequently may require a full report on any deficiencies as disclosed by the proof of performance test within such reasonable period of time as it may designate.

10.1 The City reserves the right to lay and permit to be laid, sewer, gas, water, electric and other pipe lines or cables and conduits, and to do and permit to be done, any underground and overhead work, and any attachment, restructuring or changes in aerial facilities that may be deemed necessary or proper by the City Manager in, across, along, over or under any public street, alley or right-of-way occupied by Grantee, and to change any curb or sidewalk or the grade of any street. In permitting such work to be done, the City shall not be liable to Grantee for any damages not directly caused by the willful misconduct or negligence of the City; provided, however, nothing herein shall relieve any other person or entity, including any contractor, subcontractor, or agent from liability for damage to Grantee's Cable System.

10.2 In the event that, during the term of this Franchise, the City authorizes abutting landowners to occupy space under the surface of any public street, alley, or right-of-way, such grant to an abutting landowner shall be subject to the rights herein granted to Grantee. In the event that the City shall close or abandon any public street, alley or right-of-way, which contains any portion of Grantee’s Cable System, any conveyance of land contained in such closed or abandoned public street, alley, or right-of-way shall be subject to the rights herein granted.

10.3 During the term of this agreement, Grantee shall be liable for the acts or omissions of any entity used by Grantee (including an Affiliate) when such entity is involved directly or indirectly in the construction and installation of Grantee's Cable System to the same extent as if the acts or omissions of such entity were the acts or omissions of Grantee.

10.4 Relocation or Removal of Facilities: Within thirty (30) days following written notice from the City, the Grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any of its Cable System or other of its facilities that are within the Public Rights-of-Ways whenever the City shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

10.4.1 The construction, repair, maintenance or installation of any City or other public improvement in or upon the Public Rights-of-Way.

10.4.2 The operations of the City or other governmental entity in or upon the Public Rights-of-Way.

10.4.3 This section is not intended to affect or alter any current contractual agreements that the Grantee may have concerning relocation of facilities or recovery of costs from private third parties from relocations requested by such private third parties.

Grantee recognizes, accepts and agrees that the terms, conditions and provisions of this Franchise are subject to the applicable provisions of the Richland City Charter. Any request by Grantee for a modification of this Franchise shall be subject to review by the City Attorney for compliance with the applicable provisions of the City Charter.

12.1 In furtherance of the public interest in safety, health and public welfare and to facilitate the safe management of Public Rights-of-Way, the construction, expansion, reconstruction, excavation, use, maintenance and operation of Grantee's Cable System and property shall be subject to all generally applicable City Requirements and ordinances.

12.2 Upon request by the City, Grantee shall remove and abate any facility that is declared a public hazard to life or property by the City Manager. Grantee and the City shall cooperate to the extent possible to assure continuity of service. If Grantee, after notice, fails or refuses to act, the City may remove or abate the same, at the sole cost and expense of Grantee, all without compensation or liability for damages to Grantee.

12.3 Within one hundred twenty (120) days of completion of each segment of Grantee's facilities , Grantee shall supply the City with a complete set of current drawings for that segment in a format to be prescribed by the City Manager upon the request by the City Manager. Grantee shall provide a complete set of current drawings of Grantee’s facilities in the Public Rights-of-Way, in a format to be prescribed by the City Manager upon request. Grantee may exclude proprietary information. Grantee will obtain the City's approval before any relocation of Grantee’s Facilities in the Public Rights-of-Way. Such approval shall not be unreasonably withheld.

The Grantee agrees to abide by the Consumer Service Standards attached as Exhibit “B” and the Consumer Service Reporting Standards attached as Exhibit “C” hereto. In accordance with federal law, the City may promulgate additional or revised Customer Service Standards so long as they are reasonable and allowing the Grantee a reasonable opportunity to comment on such revisions prior to adoption.

14.1 General Compensation. For the reason that the Public Rights-of-Way to be used by Grantee in the provision of services within the boundaries of the Franchise Area are valuable public properties, acquired and maintained by the City at great expense to its taxpayers, and because the grant to Grantee of the use of said Public Rights-of-Way is a valuable property right without which Grantee would be required to invest substantial capital in right-of-way costs and acquisitions, the Grantee agrees to pay to the City as General Compensation during each year of this Franchise, a franchise fee consisting of five percent (5%) of Grantee’s Gross Revenue as defined herein within the Franchise Area. Any other franchise granted by the City to a similarly-situated service provider for services allowed herein shall be granted on a competitively neutral basis.

14.2 Calculation and Payment on a Quarterly Basis of Annual Franchise Fee. Grantee shall pay to the City for each quarter this Franchise remains in effect an amount equal to five percent (5%) of Gross Revenue, referred to as the "Quarterly Payment." Grantee shall make this payment by check or by wire transfer to the account designated by the City Manager by 5:00 P.M. on the forty-fifth (45) day following the close of the calendar quarter for which the Quarterly Payment is calculated, provided that necessary information in order to pay by wire transfer is or has been provided to Grantee at least ten (10) days prior to the payment date. Any necessary prorations shall be made.

14.3 To the extent consistent with federal law, the compensation set forth in this Section shall be exclusive of and in addition to all special assessments and taxes of whatever nature, including, but not limited to, ad valorem taxes, utility taxes, street cut permits, impact fees, inspection fees and assessments for recovery of costs incurred by the City.

14.4 In the event any Quarterly Payment is made after 5:00 P.M. on the date due, Grantee shall pay a late payment charge of the greater of (i) $100 or (ii) simple interest at twelve percent (12%) annual percentage rate of the total amount past due.

14.5 Payment of money under this Section shall not in any way limit or impair any of the privileges or regulatory, condemnation, police powers or taxing rights of the City of Richland, whether under this Franchise or otherwise. No acceptance of any payment shall be construed as an accord that the amount paid is the correct amount, nor shall such acceptance be construed as a release of any claim which the City may have for additional sums payable under the provisions of this Section.

14.6 Grantee shall file annually with the City Manager no later than one hundred twenty (120) days after the end of the Grantee's fiscal year, a statement of Gross Revenue for that year within the Franchise Area pursuant to this Franchise. This statement shall present, a detailed classification of Gross Revenue and uncollectible accounts for the year in a reasonable form prescribed by the City Manager after consultation with Grantee.

14.7 Any transaction or arrangement which has the effect of circumventing payment of required franchise fees and/or evasion of payment of franchise fees by non-collection, non-reporting of Gross Revenue, collection of revenues by Affiliates, bartering, or any other means which evade the actual collection of revenues by Grantee for services delivered over the Cable System or businesses Grantee pursues derived from the operation of the Cable System is prohibited.

15.1 Promptly upon request by the City Manager not later than thirty (30) days, if not reasonably available sooner, Grantee shall provide the City access or copies of its records as to all matters in connection with or affecting the construction, reconstruction, removal, maintenance, operation and repair of Grantee’s Cable System (and any other facilities) in the Public Rights-of-Way. The City shall extend the time for provision of such information upon a reasonable showing by Grantee that such extension is justified.

15.2 Grantee shall keep complete and accurate books of accounts and records of its business and operations pursuant to this Franchise in accordance with generally accepted accounting principles. After consultation with Grantee, the City Manager may reasonably require the keeping of additional records or accounts which are reasonably necessary for purposes of identifying, accounting for, and reporting Gross Revenue and uncollectibles for purposes of the Compensation Section 14. To the extent practicable, Grantee shall keep its books of accounts and records in such a way that identification of revenues by type within the Franchise Area is straightforward.

15.3 In order to determine the Gross Revenue received by the Grantee which in accordance with Section 14 is subject to franchise fee, Grantee agrees that on the same date that payment is made, it will file with the City Manager a certified copy of a report acceptable to the City Manager in sufficient detail to itemize revenues which comprise Gross Revenue. Without limitation on the discretion of the City Manager to require additional information, this report shall:

15.3.1 Incorporate a statement reflecting the market value of all “trade” revenue (revenues from exchanges or barter which do not involve monetary compensation);

15.3.2 Show all local, regional and national advertising revenue allocated to the operation of the Cable System in the Franchise Area in accordance with the Allocation Percentage.

15.3.3 Provide the total number of commercial service accounts by types (e.g., business/multi-family) served by the Grantee using its Cable System, including a broad description of the Cable Services provided.

15.4 The City may, if it sees fit, have the books and records of Grantee examined by a City representative to ascertain the correctness of the reports agreed to be filed herein.

15.5 Grantee shall report to the City such other information relating to this Franchise as the City Manager may reasonably require to demonstrate compliance with the Franchise and shall comply with the City's reasonable determination of forms for reports, the time for reports, the frequency with which any reports are to be made, and if reports are to be made certified.

15.6 Upon the City Manager’s thirty (30) day written request, Grantee shall make available to the City, in the Tri-City area during regular business hours, its books and records to examine, audit, review and/or obtain copies of the papers, books, accounts, documents, maps, plans and other records of Grantee pertaining to all revenue derived by Grantee and Affiliates from the operation of the Cable System to provide Cable Service in order to verify the accuracy of payments under Section 14. Grantee shall fully cooperate in making available its records and otherwise assisting in these activities. The City shall extend the time for the provision of such information upon a reasonable showing by Grantee that such extension is justified.

15.6.1 The cost of such audit shall be borne by Grantee if the same results in increasing the Grantee’s annual payment to the City by two percent (2%) or more.

15.7 The City Manager may, at any time, make inquiries pertaining to Grantee's performance of the terms and conditions of this Franchise. Grantee shall respond to such inquiries on a timely basis.

15.8 Promptly and timely, Grantee shall provide the City upon request with notices of all petitions, applications, communications and reports submitted to or received from Grantee or Affiliates and the FCC, Securities and Exchange Commission and the appropriate state utility commission, if any, or their successor agencies, relating to any matter affecting the use of Franchise Area Public Rights-of-Way and/or the operation of a Cable System authorized pursuant to this Franchise. Upon written request from City, Grantee shall provide the City Manager with copies of all such documentation.

15.9 The City will maintain confidentiality of information provided by Grantee to the extent permitted by law when Grantee has notified the City of the confidential nature of the information. The City will provide Grantee copies of any Attorney General opinion request under the Washington Open Records Act which pertains to such information.

15.10 City and Grantee will strictly comply with the Federal Privacy of Customer Information Act (47 U.S.C. § 221).

15.11 FCC Filings. The Grantee shall, on a quarterly basis, mail or deliver a list of all filings related to this Franchise it makes with state and federal agencies to the City Manager. Consistent with Section 5.5, the City shall have the right to inspect and copy any such filings.

SECTION 16. ASSIGNMENT OF FRANCHISE Neither this Franchise, or a substantial portion of the Cable System, or any portion of the I-Net Fiber, held by Grantee for use under this Franchise which are in the Public Rights-of-Way, any rights or privileges of Grantee under this Franchise, either separately or collectively, shall be sold, resold, assigned, transferred or conveyed by Grantee to any other person, firm, Affiliate or entity, without the prior written consent of the City by ordinance or resolution. Such approval shall not be unreasonably withheld. Should the Grantee sell, assign, transfer, convey or otherwise dispose of any of its rights or interests under this Franchise, including Grantee's Cable System or capacity on its Cable System, or attempt to do so, without the City's prior consent, the City may revoke this Franchise for default, in which event all rights and interest of the Grantee shall cease. Any transfer in violation of this Section shall be null and void and unenforceable. Any change of Control of Grantee shall constitute a transfer under this Section. There shall be a rebuttable presumption of a change of Control of Grantee upon a change of 10% or greater in the ownership of Grantee. A mortgage or other pledge of assets to a bank or lending institution in a bona fide lending transaction shall not be considered an assignment. The Grantee agrees to promptly pay to the City a sum of money sufficient to reimburse it for all reasonable expenses incurred by the City in review of such an assignment or transfer as provided for in this Section.

17.1 If the City has reason to believe that Grantee is in violation of this Franchise, the City Manager shall notify Grantee in writing of the violation setting forth the nature of such violation. Within thirty (30) days of receipt of such notice, or such longer period specified by the City Manager, Grantee shall respond in writing that the violation has been cured or provide a cure plan or schedule that satisfies the City Manager or provide explanations in refutation or excuse with documentation to support that an alleged violation did not occur.

17.2 Notwithstanding Subsection 17.1 above, Grantee shall be allowed thirty (30) days to cure violations after written notice is received from the City, by taking appropriate steps to comply with the terms of this Franchise ordinance and any lawful regulations. If the nature of the violation is such that it cannot be fully cured within 30 days due to circumstances not under Grantee’s control, the period of time in which Grantee must cure the violation shall be extended by the City Manager in writing for such additional time reasonably necessary to complete the cure, provided that (i) Grantee shall have promptly commenced to cure, and (ii) Grantee is diligently pursuing its efforts to cure in the City Manager’s reasonable judgment.

17.3 If the violation has not been cured within the time allowed under Subsection 17.2 above, Grantee shall be liable to the City of Richland for liquidated damages for the following violations:

17.3.1 failure to provide and maintain requested Cable Service to any household within the Franchise Area as required by this Franchise: fifteen cents ($0.15) per affected household, for each day that such failure continues; (not to exceed one thousand ($1000) dollars per day);

17.3.2 failure to promptly provide data, documents, reports, bonds, letters of credit, insurance or information to the City, in accordance with Section 15, Section 18 and Section 19: two hundred and fifty ($250) dollars per day, for each day such failure continues;

17.3.3 failure to provide resources and an Access Channel in strict compliance with Sections 4, 5 and 6 hereof: three hundred ($300) dollars per day for each day such failure continues;

17.3.4 failure to comply with lawful City Requirements concerning construction in the Public Rights-of-Way: two hundred ($200) dollars per day for each day such failure continues.

17.3.5 failure to substantially comply with a material requirement of the Customer Service Standards: two hundred ($200) dollars per day for each day such failure continues.

17.3.6 in the event the Franchise is extended by providing the I-net described in Section 7, failure to comply with Section 7: three hundred ($300.00) dollars per day.

17.4 Grantee agrees that each of the foregoing failures shall result in injuries to the City and its citizens and institutions, the compensation for which would be difficult to ascertain and to prove. Accordingly Grantee agrees that the foregoing amounts are liquidated damages, not a penalty or forfeiture, and are within one or more 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 City pursuant to Section 14 herein.

17.5 If Grantee fails to make full and complete payments as required by this Franchise within ten (10) days after receipt of written notice from the City Manager, then the City Manager may immediately withdraw without further notice to Grantee the amount thereof from the letter of credit maintained in accordance with Section 18, except as subject to Section 17.6 below.

17.6 Notwithstanding any other provision of this Franchise, upon Grantee’s request, Grantee shall be afforded an opportunity to show that a violation has not occurred, and City Manager may not act under Section 17.5 until the administrative hearing, as provided for herein, is concluded and a determination has been made on whether a violation has occurred. This opportunity shall consist of an administrative hearing upon thirty (30) days’ notice before an impartial hearing examiner jointly designated by the City Attorney and Grantee within thirty (30) days of Grantee’s request.

If as a result of the administrative hearing, the hearing examiner determines that a violation has not occurred, the City shall pay all of the expenses related to the administrative hearing. If a violation has occurred, Grantee shall pay the expenses. After the conclusion of the administrative hearing either party may seek any and all remedies which it may have at law.

17.7 Upon evidence being received by the City that violations of this Franchise, any City Charter provisions or any ordinances lawfully regulating Grantee in the construction and operation of its Cable System have occurred, or continue to occur after the thirty (30) day period, and any additional time necessary to cure, as allowed under 17.2, the City may cause an investigation to be made. If the City finds that such a violation continues to exist or has occurred, then the City or Grantee may take any action authorized by law, including forfeiture of this Franchise and a suit in court to compel compliance. In any such proceeding the non-prevailing party shall be required to pay the reasonable expenses incurred by the prevailing party in such suit and all damages and costs (including attorney fees), but Grantee may be allowed, either by the court in the judgment of forfeiture or by order of the City Council, a reasonable time thereafter, as fixed by such judgment or order, to correct the default and pay such expenses, damages and costs as it may be adjudged to pay, and if Grantee does so correct and so pay within such time, forfeiture shall not become effective nor be enforced.

17.8 Failure by the City or the Grantee to enforce any rights under this Franchise does not constitute a waiver of such rights.

18.1 Grantee shall obtain and maintain, at its sole cost and expense, and file with the City Clerk, a corporate surety bond with a surety company authorized to do business in the State of Washington and found acceptable by the City Attorney, in the amount of two hundred thousand ($200,000) dollars or as required by Title 12 (Right-of-Way Ordinance), whichever is greater, to secure Grantee's performance of its obligations and faithful adherence to all requirements of this Franchise. Grantee shall provide this corporate surety bond at the time of filing the acceptance of this Franchise, as required by Section 28 herein. This bond may be drawn upon by the City in accordance with Section 17.

18.2 Grantee shall also provide a letter of credit on behalf of the City, at a bank acceptable to the City Manager in the amount of one hundred fifty thousand ($150,000) dollars in a form acceptable to the City Attorney. Said letter of credit is to guarantee payment of liquidated damages as set forth in Section 17. Such letter of credit may be reduced in the amount of fifty thousand ($50,000) dollars each year for the first two years after the effective date, if there has been full compliance with this Franchise, but in no event shall the letter of credit be reduced to less than $50,000, except by written authorization by the City Manager.

18.3 The rights reserved to the City with respect to the bond are in addition to all other rights of the City, whether reserved by this Franchise ordinance or authorized by law; and no action, proceeding or exercise of a right with respect to such bond shall affect the City’s rights to demand full and faithful performance under this Franchise or limit Grantee’s liability for damages.

18.4 The bond shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be canceled by the surety nor any intention not to renew be exercised by the surety until sixty (60) days after receipt by the City, by registered mail, of written notice of such intent."

19.1 Grantee shall obtain and maintain in full force and effect throughout the term of this Franchise insurance in the same amounts as are required in § 28.08.050, of Title 28, of the Telecommunications Ordinance with an insurance company licensed to do business in the State of Washington and acceptable to the City Manager. All companies will be required to be rated A-VII or better by A.M. Best or A or better by Standard and Poors. Grantee shall provide City with proof of such insurance so required at the time of filing the acceptance of Franchise, as required by Section 27 herein. The City reserves the right to review these insurance requirements during the effective period of the Franchise, and to reasonably adjust insurance coverage and their limits when deemed necessary and prudent by the City Manager, based upon changes in statutory law, court decisions, or the claims history of the industry or the Grantee.

19.2 Subject to Grantee’s right to maintain reasonable deductibles in such amounts as are approved by the City Manager, Grantee shall obtain and maintain in full force and effect for the duration of this Franchise, at Grantee's sole expense, insurance coverage in the following type and minimum amounts:

19.2.1 Grantee shall obtain and maintain in full force and effect throughout the term of this Franchise insurance in the same amounts as are required in § 28.08.050, of Title 28, of the Telecommunications Ordinance.

19.2.2 Coverage for programming on channels that are directly or indirectly controlled by Grantee for:

Libel and slander Combined single limit of Copyright violations $10,000,000 per occurrence or its equivalent

19.3 The City Manager shall be entitled, upon request and without expense, to receive copies of certificates of insurance evidencing coverage stated above. The City Manager may make any reasonable requests for deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, except where policy provisions are established by law or regulation binding upon either City or Grantee or upon the underwriter for any of such policies. Upon request for deletion, revision or modification by the City Manager, Grantee shall exercise reasonable efforts to accomplish the changes and shall pay the cost thereof.

19.4 Grantee agrees that with respect to the above-required insurance, all insurance certificates will contain the following required provisions:

Name the City of Richland and its officers, employees, board members and elected representatives as additional insured parties (as the interests of each insured may appear) as to all applicable coverage (except worker’s compensation);

Provide for thirty (30) days notice to the City for cancellation, non-renewal, or material change;

Provide for notice to the City Manager by certified mail at:

City of Richland, Washington
505 Swift Boulevard
Richland Washington 99352

19.5 The policy clause "Other Insurance" shall not apply to the City of Richland where the City is an insured on the policy. It is the intention that insurance policies protecting the Grantee and the City shall be primary coverage for all losses covered by the policies.

19.6 Companies issuing the insurance policies shall have no recourse against the City of Richland for payment of any premiums or assessments which all are set at the sole risk of the Grantee. Insurance policies obtained by Grantee shall provide that the issuing company waives all right of recovery by way of subrogation against the City in connection with any damage covered by these policies.

20.1 Grantee shall defend, indemnify and hold City harmless from and against all damages, cost, loss or expense for the repair, replacement, or restoration of City's property, equipment, materials, structures and facilities which are damaged, destroyed or found to be defective as a result of Grantee's negligence, willful misconduct or strict liability.

20.2 Grantee, for itself and its agents, employees, subcontractors, and the agents and employees of said subcontractors, shall defend, indemnify, and hold the City, its successors, assigns, officers, employees and elected officials harmless from and against any and all claims, demands, suits, causes of action, and judgments for: (i) Damage to or loss of the property of any person (including, but not limited to Grantee, its agents, officers, employees and subcontractors, City's agents, officers and employees, and third parties); and/or (ii) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of Grantee, Grantee's subcontractors and City, and third parties), arising out of, incident to, concerning or resulting from the negligence, willful misconduct or strict liability of Grantee, its agents, employees, and/or subcontractors, in the performance of all activities and services pursuant to this Franchise, no matter how, or to whom, such loss may occur.

20.3 In the event that any such damage, claim or loss is found by a court of competent jurisdiction to be caused by the concurrent fault of both Grantee and City, then Grantee shall indemnify City to the full proportionate extent that Grantee is determined to be at fault. It is the intention of the parties, and Grantee expressly agrees, that the provisions of this section shall not exclude claims, damages, and losses caused in part, but not wholly, by the negligence of City, even if the City is more negligent than Grantee.

20.4 The terms of each contract awarded by Grantee for activities pursuant to this ordinance shall contain Indemnity provisions whereby the contractor shall indemnify City to the same extent as described above.

20.5 City shall give Grantee prompt written notice of any claims or suits. Grantee shall have the right to investigate, defend and compromise same to the extent of its own interests.

All notices from Grantee to the City pursuant to this Franchise shall be directed to the City Manager at 505 Swift Boulevard, Richland, Washington 99352, or to such officer as designated by the City Manager. All notices to Grantee pursuant to this Franchise shall be to such local corporate officer within the Benton and Franklin County areas designated by Grantee in writing. Grantee shall maintain within the Benton and Franklin County areas throughout the term of this Franchise an address for service of notices by mail. Grantee shall also maintain within the Benton and Franklin County areas a local telephone number operational during normal business hours for the conduct of matters related to this Franchise. Any change in address or telephone number shall be furnished to the City ten (10) days prior to the change.

22.1 In addition to all other rights and powers retained by the City under this Franchise or otherwise, the City reserves the right to forfeit and terminate this Franchise and all rights and privileges of Grantee hereunder in the event of a material breach of its terms and conditions, subject to reasonable notice and opportunity to cure, as provided in Section 17.
22.2 The foregoing shall not constitute a material breach if the violation occurs without the fault of Grantee or occurs as a result of circumstances beyond its control. Grantee shall not be excused from performance of any of its obligations under this Franchise by mere economic hardship, nor misfeasance or malfeasance of its directors, officers or employees.

22.3 A termination shall be declared only by a written decision of the City Council, by ordinance, resolution or motion, after an appropriate public proceeding before the City Council, which shall accord the Grantee due process and full opportunity to be heard and to respond to any notice of grounds to terminate. All notice requirements shall be met by providing the Grantee at least fifteen (I5) days prior written notice of any public hearing concerning the proposed termination of this Franchise. Such notice shall state the grounds for termination alleged by City.

22.4 The City Council, after public hearing, and upon finding the existence of grounds to terminate, may either declare this Franchise terminated or excuse such grounds upon a showing by the Grantee of mitigating circumstances or good cause for the existence of such grounds.

22.5 Neither Grantee's acceptance of this Franchise, Grantee's appearance before the City Council at any public hearing concerning proposed termination of this Franchise nor any action taken by the City Council as a result of any such public hearing, including a declaration of termination or a finding of grounds to terminate, shall be construed to waive or otherwise affect the Grantee's right to seek judicial determination of the rights and responsibilities of the parties under this Franchise.

23.1 Emergency Override. The Grantee shall maintain systems, equipment, and procedures permitting preempting of the regular signal on all channels with emergency warning signals originating from the Benton County Emergency Services (BCES). The following stipulations shall apply, except where and to what extent they may be preempted by FCC regulations:

23.2 The Director of the BCES shall determine when the Emergency Cable Override is to be activated in response to actual or impending emergency conditions.

23.3 The Grantee shall provide and maintain all equipment, systems, software, services, security provisions, and procedures required for a fully operational emergency cable override warning system in accordance with FCC rules. Any equipment necessary for activation of the system by the BCES shall be provided by the Grantor. Activation points shall be at the BCES and one other backup point within the Benton or Franklin County area, as mutually agreed upon by the parties.

23.4 The cable override shall consist of audio and crawler text signals as required by the Federal Communications Commission rules governing the new Emergency Alert System (EAS).

23.5 The system shall be tested as determined by the BCES not more than monthly and not less than annually.

23.6 The Grantee shall cooperate fully with the BCES in all other matters pertaining to a functioning emergency cable override system.

This Franchise is passed subject to the provisions of the Constitution and laws of the United States of America and the State of Washington and the Charter and ordinances of the City of Richland.

The time within which Grantee shall be required to perform any act under the Franchise shall be extended by a period of time equal to the number of days performance is delayed due to a force majeure, nor shall Grantee be subject to any penalty hereunder because of acts or failure to act due to “force majeure.” The term "force majeure" shall mean delays due to acts of God, war, civil disturbances, fire, unavoidable casualty, construction delays due to weather, failure of supplier(s), or for other similar causes beyond the control of Grantee.

26.1 Except as provided in 26.2 below, if any section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this Franchise is for any reason held invalid or unenforceable by any court of competent jurisdiction, or superseded by state or federal legislation, rules, regulations or decision, the remainder of this Franchise shall not be affected thereby but shall be deemed as a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof, and each remaining section, subsection sentence, clause, phrase, provision, condition, covenant and portion of this Franchise shall be valid and enforceable to the fullest extent permitted by law.

26.2 If any material provision of this Franchise is for any reason held invalid or unenforceable by any court of competent jurisdiction, or superseded by state or federal law, rules, regulations or decision so that the intent of these provisions is frustrated, the parties agree to immediately negotiate a replacement provision to fulfill the purpose and intent of the superseded provisions consistent with applicable law.

26.3 In the event that federal or state laws, rules or regulations preempt a provision or limit the enforceability of a provision of this Franchise, then the provision shall be read to be preempted to the extent and for the time required by law. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, without the requirement of further action on the part of the City, and any amendments to this Franchise negotiated pursuant to Subsection 26.2 as a result of such provision being preempted shall no longer be of any force or effect.

Grantee shall, on or before September 24, 1998, file in the office of the City Clerk a written instrument accepting this Franchise and all terms and conditions thereof, signed and acknowledged by its proper officers in a form acceptable to the City, and Grantee shall pay the City its reasonable expenses incurred in this Cable Franchise Renewal Process, but not to exceed thirty thousand ($30,000) dollars, which sum shall be credited by the City against the payments due the City under Section 14 herein. Grantee shall also pay costs of publication of the Franchise as is required by the City Charter, for which no credit shall be given. By this acceptance, Grantee does not waive its rights to challenge the lawfulness or enforceability of any provision of this Franchise under applicable law.

This Franchise shall take effect upon its passage by Council, subject to acceptance in accordance with the provisions of the Charter of the City of Richland and Section 27 and it is accordingly so ordained.

Should the City notify the Grantee of its intent to regulate basic service tier rates as provided by federal law, those fees and charges subject to regulation by the City shall not be increased without prior approval of the City, except as allowed by law. The City reserves the right to regulate rates for any service pursuant to federal or state law which authorize such regulation. The City reserves the right to establish procedures for any lawful regulation of rates.

30.1 Entire Agreement. This Franchise contains all of the agreements of the parties with respect to any matter covered or mentioned in this Franchise and no prior or contemporaneous agreements or understandings pertaining to any such matters shall be effective for any purpose. No provision of this Franchise may be amended or added to except by agreement in writing signed by both of the parties.

30.2 Repeal of Prior Ordinances. The CATV plan, adopted by motion and approved by City Council on August 6, 1984, The Rules, Regulations and Standards of Operation Ordinance, Ordinance 60-84, The Cable Television Enabling Ordinance, Ordinance No. 22-84, Cable Franchise Ordinance No. 23-84, The Rates and Charges Resolution, Resolution No. 61-84, and Rate Regulation Ordinance No. 19-94 are hereby repealed and are no longer in force and effect.

30.3 Attorney’s Fees. If any suit or other action is instituted in connection with any controversy arising under this Franchise, the prevailing party shall be entitled to recover all of its costs and expenses including such sum as the Court may judge reasonable for attorney’s fees, including fees upon appeal of any judgment or ruling.

30.4 Time is Of the Essence. Time is of the essence of this Franchise and each and all of its provisions in which performance is a factor.

30.5 Remedies Are Cumulative. Any remedies provided for under the terms of this Franchise are not intended to be exclusive but shall be cumulative with all other remedies available to the City at law, in equity, or by statute.

30.6 Grantee Nor City Not a Common Carrier. Nothing in this Franchise or Section 7 (I-Net Section) or by any use of the Access Channels hereof shall be deemed by City or the Grantee to subject the City or Grantee’s operations, Cable System, the I-Net services or the use of the Access Channels provided by Grantee under authorization of this Franchise, to regulation as a common carrier within the meaning of applicable state or federal law. In the event a state or federal agency or court deem them such, the City will discontinue or alter its use in such a manner that would be consistent with the intent of the parties that there is no common carrier service or telecommunication services, as defined in state law that would require further authorization by the Grantee or the City.