Comcast - MACC ~ FR161001 ~ Cable mo /
CABLE TELEVISION
FRANCHISE AGREEMENT
Between the Jurisdictions participating in the
METROPOLITAN AREA
COMMUNICATIONS COMMISSION
AND
COMCAST OF OREGON II, INC.
June 10, 2015
TABLE OF CONTENTS
SECTION1. DEFINITIONS....................................................................................................1
SECTION 2. GRANT OF FRANCHISE...................................................................................7
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS............................................10
SECTION 4. ADMINISTRATION AND REGULATION..........................................................12
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS...........................................14
SECTION 6. CUSTOMER SERVICE................. ..17
.................................................................
SECTION 7. REPORTS AND RECORDS ............................................................................17
SECTION 8. PROGRAMMING.............................................................................................20
SECTION 9. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS ..........................21
SECTION 10. GENERAL STREET USE AND CONSTRUCTION .......................................26
SECTION 11. SYSTEM DESIGN AND STANDARDS.........................................................32
SECTION 12. INSTITUTIONAL NETWORK SERVICES.....................................................32
SECTION 13. PEG ACCESS AND PCN GRANT FUND.....................................................34
SECTION 14. SERVICE EXTENSION, CONSTRUCTION, AND INTERCONNECTION.....35
SECTION 15. FRANCHISE VIOLATIONS; REVOCATION OF FRANCHISE......................37
SECTION 16. ABANDONMENT..........................................................................................42
SECTION 17. FRANCHISE RENEWAL AND TRANSFER..................................................43
SECTION 18. SEVERABILITY............................................................................................44
SECTION 19. MISCELLANEOUS PROVISIONS................................................................45
ATTACHMENT A-CUSTOMER SERVICE
ATTACHMENT B-COMMISSION FRANCHISE STATISTICS-QUARTERLY REPORT
ATTACHMENT C- EXISTING LIVE ORIGINATION SITES
ATTACHMENT D-MASTER SERVICES AGREEMENT AND ATTACHMENTS
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SECTION 1. DEFINITIONS
For the purposes of this Agreement and all attachments included hereto, the following terms,
phrases, words and their derivations shall have the meaning given below unless the context
indicates otherwise. When not inconsistent with the context, words used in the present tense
include the future, words in the plural include the singular, and words in the singular include'the
plural. Words not defined shall be given their common and ordinary meaning. The word"shall" is
always mandatory and not merely directory.
1.1 Access means the availability for noncommercial use by various agencies, institutions,
organizations, groups and individuals in the community, including Grantor and its
designees, of the Cable System to acquire, create, receive, and distribute video and
Signals as permitted under applicable law, including, but not limited to:
(A) Public Access means Access where organizations,groups or individual members
of the general public, on a nondiscriminatory basis, are the primary Programmers
or users having editorial control over the content;
(B) Educational Access means Access where Schools and educational institutions
are the primary Programmers or users having editorial control over the content;
(C) Governmental Access means Access where governmental institutions are the
primary Programmers or users having editorial control over the content; and
(D) PEG Access means Public Access, Educational Access, and Governmental
Access, collectively.
1.2 Access Center means a facility or facilities where Public, Educational, or Governmental
use Signals are managed and delivered Upstream to the Grantee for Downstream
transmission to Subscribers or to other Access Centers via a dedicated connection.
1.3 Access Channel means any Channel, or portion thereof, designated for non-commercial
Access purposes or otherwise made available to facilitate or transmit Access
programming or service.
1.4 Affiliate when used in connection with Grantee means any corporation, Person or entity
that owns or controls, is owned or controlled by, or is under common ownership or control
with, Grantee.
1.5 Basic Service means any service tier which includes the retransmission of local television
broadcast Signals and PEG Access Channels, or as such service tier may be further
defined by federal law.
1.6 Cable Act means the Cable Communications Policy Act of 1984 and the Cable Television
Consumer Protection and Competition Act of 1992 and any amendments thereto,
including those contained in the Telecommunications Act of 1996.
1.7 Cable Operator means any Person or group of Persons, including Grantee, who provide
Cable Service over a Cable System and directly owns a significant interest in such Cable
System, or who otherwise control or are responsible for, through any arrangement, the
management and operation of such a Cable System.
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1.8 Cable Service means the one-way transmission to Subscribers of video programming or
other programming service and Subscriber interaction, if any, which is required for the
selection or use of such video programming or other programming service.
1.9 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 (1) a facility that
serves'only to retransmit the television Signals of one (1) or more television broadcast
stations; (2) a facility that serves Subscribers without using any Public Right of Way; (3) a
facility of a common carrier which is subject, in whole or in part, to the provisions of Title II
of the federal Communications Act (47 U.S.C. 201 et seq.), except that such facility shall
be considered a Cable System (other than for purposes of Section 621(c) (47 U.S.C. §
541(c))to the extent such facility is used in the transmission of video programming directly
to Subscribers, unless the extent of such use is solely to provide interactive on-demand
service; (4) an open video system that complies with federal statutes; or(5)any facilities of
any electric utility used solely for operating its electric utility systems.
1.10 Capacity means the maximum ability to carry Signals or other information within a
specified format.
1.11 Capital or Capital Cost means the expenditure of funds for resources whose useful life
can be expected to exceed a period of one(1) year or longer as consistent with Generally
Accepted Accounting Principles ("GAAP").
1.12 Channel means a time or frequency slot or technical equivalent on the Cable System in a
specified format, discretely identified and capable of carrying full motion color video and
audio, and may include other non-video subcarriers and digital information.
1.13 Commission means the Metropolitan Area Communications Commission and its officers,
agents and employees, created and exercising its powers pursuant to an
Intergovernmental Cooperation Agreement entered into by Grantors herein, as authorized
by state law(particularly ORS Chapter 190) and the laws, charters, and other authority of
the individual member units of local government who are members of the Commission.
The powers of the Commission have been delegated to it by Grantors and although it may
exercise those powers as an entity, it remains a composite of Grantors herein.
1.14 Demarcation means up to and including the device (as of the Effective Date known as the
"modulator")where the DAP Signal is converted into a format to be transmitted over a fiber
connection to Grantee.
1.15 Designated Access Provider("DAP") means the entity or entities designated by the
Grantor to manage or co-manage PE G Access Channels and Access Centers. The
Grantor may be a Designated Access Provider; however, any entity designated by the
Grantor shall not be a third party beneficiary under this Agreement.
1.16 Downstream means the transport of Signals from the Headend to Subscribers or to
Interconnection points served by the Cable System.
1.17 Effective Date means the date defined in Section 2.4 herein.
1.18 FCC means the Federal Communications Commission,
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1.19 Fiber means a transmission medium of optical strands of cable capable of carrying
Signals by means of lightwave impulses.
1.20 Franchise means the non-exclusive and revocable authorization or renewal thereof for
the construction or operation of a Cable System such as is granted by this Agreement,
whether such authorization is designated as a Franchise, license, resolution, contract,
certificate, agreement or otherwise.
1.21 Franchise Area means the area within the legal jurisdictional boundaries of the individual
member units of local government who are members of the Commission during the term of
this Agreement. The Franchise Area shall include any additional signers of the
Intergovernmental Agreement only if Grantee is currently providing Cable Service in such
additional areas. For purposes of Washington County, the Franchise Area includes only
the unincorporated areas within the legal jurisdictional boundaries of the County.
1.22 Grantee means Comcast of Oregon, Il, Inc. or its permitted successors, transferees or
assignees.
1.23 Grantor means, individually and, where applicable, collectively, the Oregon cities of
Banks, Beaverton, Cornelius, Durham, Forest Grove, Gaston, Hillsboro, King City, Lake
Oswego, North Plains, Rivergrove, Tigard, Tualatin, and West Linn together with
Washington County, Oregon.
1.24 Gross Revenue means, and shall be construed broadly to include, all amounts in
whatever form and from all sources derived directly or indirectly by Grantee and/or an
Affiliate from the operation of Grantee's Cable System to provide Cable Services within
the Franchise Area. Gross Revenues include, by way of illustration and not limitation:
• Fees for Cable Services, regardless of whether such Cable Services are provided
to residential or commercial Subscribers, including revenues derived from the
provision of all Cable Services (including but not limited to pay or premium Cable
Services, digital Cable Services, pay-per-view, pay-per-event, audio channels and
video-on-demand Cable Services);
• Installation, disconnection, reconnection, downgrade, upgrade, maintenance,
repair, or similar charges associated with Subscriber Cable Service;
• fees paid to Grantee for Channels designated for commercial/leased access use;
which shall be allocated on a pro rata basis using total Cable Service Subscribers
within the Franchise Area;
• Converter, remote control, and other Cable Service equipment rentals, leases, or
sales;
• Payments for pre-paid Cable Services and/or equipment;
• Advertising Revenues as defined herein;
• Fees including, but not limited to: (1) late fees, convenience fees and
administrative fees which shall be allocated on a pro rata basis using Cable
Services revenue as a percentage of total Grantee revenues within the Franchise
Area; (2) Franchise fees; (3)the FCC user fee and (4) PEG fees if included on
Subscriber billing statements;
• Revenues from program guides; and
• Commissions from home shopping channels and other Cable Service revenue
sharing arrangements which shall be allocated on a pro rata basis using total
Cable Service Subscribers within the Franchise Area.
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• Gross Revenues" shall not be net of: (1) any operating expense; (2) any accrual,
including without limitation, any accrual for commissions to Affiliates; or(3) any
other expenditure, regardless of whether such expense, accrual, or expenditure
reflects a cash payment. "Gross Revenues", however, shall not be double
counted. Revenues of both Grantee and an Affiliate that represent a transfer of
funds between the Grantee and the Affiliate, and that would otherwise constitute
Gross Revenues of both the Grantee and the Affiliate, shall be counted only once
for purposes of determining Gross Revenues. Similarly, operating expenses of the
Grantee which are payable from Grantee's revenue to an Affiliate and which may
otherwise constitute revenue of the Affiliate, shall not constitute additional Gross
Revenues for the purpose of this Franchise. "Gross Revenues" shall include
amounts earned by Affiliates only to the extent that Grantee could, in concept,
have earned such types of revenue in connection with the operation of Grantee's
Cable System to provide Cable Services and recorded such types of revenue in its
books and Records directly, but for the existence of Affiliates. "Gross Revenues"
shall not include sales taxes imposed by law on Subscribers that the Grantee is
obligated to,collect. With the exception of recovered bad debt, "Gross Revenues"
shall not include bad debt.
(A) "Advertising Revenues" shall mean amounts derived from sales of advertising that
are made available to Grantee's Cable System Subscribers within the Franchise
Area and shall be allocated on a pro rata basis using total Cable Service
Subscribers reached by the advertising. Whenever Grantee acts as the principal
in advertising arrangements involving representation firms and/or advertising
Interconnects and/or other multichannel video providers, Advertising Revenues
subject to Franchise fees shall include the total amount from advertising that is
sold, and not be reduced by any operating expenses (e.g., "revenue offsets" and
"contra expenses" and "administrative expenses" or similar expenses), or by fees,
commissions, or other amounts paid to or retained by National Cable
Communications or Comcast Spotlight or similarly affiliated advertising
representations firms to Grantee or their successors involved with sales of
advertising on the Cable System within the Franchise Area.
(B) "Gross Revenues" shall not include:
• Actual Cable Services bad debt write-offs, except any portion which is
subsequently collected which shall be allocated on a pro rata basis using
Cable Services revenue as a percentage of total Grantee revenues within
the Franchise Area;
• Any taxes and/or fees on services furnished by Grantee imposed on
Subscribers by any municipality, state or other governmental unit,
provided that the Franchise fee, the FCC user fee and PEG fee shall not
be regarded as such a tax or fee;
• Launch fees and marketing co-op fees; and,
• Revenues associated with the provision of managed network services
provided under separate business contract.
• Unaffiliated third party advertising sales agency fees or commissions which
are reflected as a deduction from revenues, except when Grantee acts as a
principal as specified in paragraph (A) immediately above.
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(C) To the extent revenues are derived by Grantee for the provision of a discounted
bundle of services which includes Cable Services and non-Cable Services,
Grantee shall calculate revenues to be included in Gross Revenues using a
methodology that allocates revenue on a pro rata basis when comparing the
bundled service price and its components to the sum of the published rate card
prices for such components. Except as required by specific federal, state or local
law, it is expressly understood that equipment may be subject to inclusion in the
bundled price at full rate card value. This calculation shall be applied to every
bundled service package containing Cable Service from which Grantee derives
revenues in the Franchise Area. The Grantor reserves its right to review and to
challenge Grantee's calculations.
Example: Prior to any bundle-related price reduction, if Cable Service is valued at
50% of the total of the services to be offered in a bundle, then Cable Service is to
be valued and reported as being no less than fifty percent(50%) of the price of the
bundled service total.
(D) Grantee reserves the right to change the allocation methodologies set forth in
paragraph (C) above to meet standards mandated by the Financial Accounting
Standards Board ("FASB"), Emerging Issues Task Force ("EITF") and/or the U.S.
Securities and Exchange Commission ("SEC"). Grantor acknowledges and
agrees that Grantee shall calculate Gross Revenues in a manner consistent with
GAAP where applicable; however, the Grantor reserves its right to challenge
Grantee's calculation of Gross Revenues, including Grantee's interpretation of
GAAP and Grantee's interpretation of FASB, EITF and SEC directives. Grantee
agrees to explain and document the source of any change it deems required by
FASB, EITF and SEC concurrently with any Franchise-required document at the
time of submittal, identifying each revised Section or line item.
(E) Grantor agrees and acknowledges that Grantee shall maintain its books and
Records in accordance with GAAP.
1.25 Headend means Grantee's facility for Signal reception and dissemination on the Cable
System, including cables, antennas, wires, satellite dishes, monitors, switches,
modulators, processors, equipment for the Interconnection of the Cable System with
adjacent Cable Systems or other separate communications network, and all other related
equipment and facilities.
1.26 Interconnect or Interconnection means the provision by Grantee of technical,
engineering, physical, financial and all other necessary components to provide and
adequately maintain a physical linking of Grantee's Cable System with any other
designated Cable System or any separate communications network, so that services of
technically adequate quality may be sent to, and received from, such other systems to the
extent required by this Agreement.
1.27 Leased Access Channel means any Channel commercially available for programming
for a fee or charge by Grantee to members of the general public.
1.28 Origination Point means a location other than an Access Center, where Public,
Educational, or Governmental use programming is delivered to the Grantee for Upstream
transmission.
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1.29 Parent Corporation means Comcast Communications, Inc. or successors and assigns
and includes any other existing or future corporations with greater than fifty percent (50%)
ownership or control over Grantee.
1.30 Person means any individual, sole proprietorship, partnership, association, corporation,
or any other form of organization authorized to do business in the State of Oregon, and
includes any natural person.
1.31 Programmer means any Person responsible for PEG Access Programming on the Cable
System, including, without limitation, any Person who produces or otherwise provides
PEG Access Programming for transmission on the Cable System.
1.32 Programming means television programs, audio, video or other patterns of Signals to be
transmitted on the Cable System, and includes all programs or patterns of Signals
transmitted, or capable of being transmitted, on the Cable System.
1.33 Public Communications Network("PCn means the separate communications
institutional network provided by the Grantee under Section 12 of this Agreement
designed principally for the provision of non-entertainment, interactive services to public
Schools, public universities and colleges, Pacific University, public agencies, or the
Virginia Garcia Health Centers (or successor agencies) for use in connection with the
ongoing operations of such institutions. Services provided include data to PCN users on
an individual application, private channel basis.
1.34 Public Rights of Way include, but are not limited to, Streets, bridges, sidewalks, trails,
paths, public utility easements, and all other public ways, including the subsurface under
and air space over these areas, excluding parks and parkways, but only to the extent of
the Grantor's right, title, interest, or authority to grant a Franchise to occupy and use such
Streets and easements for Cable System facilities. "Public Rights of Way" shall also
include any easement granted to or owned by the Grantor and acquired, established,
dedicated, or devoted for public utility purposes. Nothing in this Agreement shall preclude
Grantee's use of private easements as set forth in 47 U.S.C. §541(a)(2).
1.35 Record means written or graphic materials, however produced or reproduced, or any
other tangible permanent record,to the extent related to the enforcement or administration
of this Agreement.
1.36 Quarterly or Quarter means the standard calendar periods of January 1 —March 31,April
1 —June 30, July 1 —September 30, and October 1 — December 31, unless otherwise
specified in this Agreement.
1.37 School means any accredited educational institution, public or private, including, but not
limited to, primary and secondary Schools.
1.38 Section means a provision of this Agreement, unless specified as part of another
document.
1.39 Signal means any electrical or light impulses carried on the Cable System, whether
one-way or bi-directional.
1.40 Streets means the surface of any public Street, road, alley or highway, within the Grantor,
used or intended to be used by the general public for general transportation purposes to
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the extent the Grantor has the right to allow the Grantee to use them, and the space above
and below.
1.41 Subscriber means any Person who is lawfully receiving, for any purpose or reason, any
Cable Service provided by Grantee by means of, or in connection with, the Cable System.
1.42 Upstream means the transport of Signals to the Headend from remote points on the
Cable System or from Interconnection points on the Cable System.
SECTION 2. GRANT OF FRANCHISE
2.1 Grant
(A) Grantor hereby grants to Grantee in the public interest a nonexclusive and
revocable authorization to make lawful use of the Public Rights of Way within the
Franchise Area to construct, operate, maintain, reconstruct, and repair a Cable
System for the purpose of providing Cable Services and to provide a PCN for
voice, video, and data, subject to the terms and conditions set forth in this
Agreement.
(B) This Agreement is intended to convey limited rights and interests only as to those
Public Rights of Way, in which the Grantor has an actual interest. It is not a
warranty of title or interest in any Public Rights of Way, it does not provide the
Grantee any interest in any particular location within the Public Rights of Way, and
it does not confer rights other than as expressly provided in the grant hereof. This
Agreement does not deprive the Grantor of any powers, rights, or privileges it now
has, or may acquire in the future, to use, perform work on, or regulate the use and
control of the Grantor's Public Rights of Way covered by this Agreement, including
without limitation, the right to perform work on its Streets, or appurtenant public
works facilities, including constructing, altering, paving, widening, grading, or
excavating thereof.
(C) This Agreement authorizes Grantee to engage in providing Cable Service, as that
term is defined in 47 U.S.C. Sec. 522(6) as amended, and to provide a related
PCN as described in Section 12 of this Agreement. This Agreement shall not be
interpreted to prevent the Grantor from imposing lawful additional conditions
including additional compensation conditions for use of the Public Rights of Way
should Grantee provide service other than Cable Service. Nothing herein shall be
interpreted to prevent Grantee from challenging the lawfulness or enforceability of
any provisions of applicable law.
(D) Grantee promises and guarantees as a condition of exercising the privileges
granted by this Agreement,that any agent,Affiliate orjoint venture or partner of the
Grantee directly involved in the offering of Cable Service in the Franchise Area, or
directly involved in the management or operation of the Cable System in the
Franchise Area, will also comply with the terms and conditions of this Agreement.
2.2 Use of Public Rights of Way
Subject to Grantor's supervision and control and the terms of this Agreement, Grantee may erect,
install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and
along the Public Rights of Way within the Franchise Area, such wires, cables, conductors, ducts,
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conduits, vaults, amplifiers, pedestals, attachments, and other property and equipment as are
necessary and appurtenant to the operation of a Cable System for the provision of Gable Service
within the Franchise Area. Grantee shall comply with all applicable construction codes, laws,
ordinances, regulations and procedures now in effect or enacted hereafter, and must obtain any
and all necessary permits from the appropriate agencies of Grantor prior to commencing any
construction activities. Grantee,through this Agreement, is granted extensive and valuable rights
to operate its Cable System for profit using Grantor's Public Rights of Way within the Franchise
Area in compliance with all applicable Grantor construction codes and procedures. As trustee for
the public, Grantor is entitled to fair compensation to be paid for these valuable rights throughout
the term of this Agreement subject to federal law.
2.3 Duration
The term of this Agreement and all rights, privileges, obligations, and restrictions pertaining
thereto shall be from the Effective Date of this Agreement through June 30, 2025, unless
extended or terminated sooner as hereinafter provided.
2.4 Effective Date
The Effective Date of this Agreement shall be July 1, 2015 unless Grantee fails to file an
unconditional written acceptance of this Agreement and post the security required hereunder by
Section 5.4. Grantee shall accept this Agreement within forty-five(45)days of the Effective Date,
unless the time for acceptance is extended by Grantor. In the event acceptance does not take
place or the security is not posted as required hereunder, this Agreement shall be voidable at the
reasonable discretion of Grantor, and any and all rights of Grantee to own or operate a Cable
System within the Franchise Area under the express terms of this Agreement shall be of no force
or effect.
2.5 Franchise Nonexclusive
This Agreement shall be nonexclusive, and is subject to all prior rights, interests, agreements,
permits, easements or licenses granted by Grantor to any Person to use any Street, Public Rights
of Way, easements not otherwise restricted, or property for any purpose whatsoever, including
the right of Grantor to use same for any purpose it deems fit, including the same or similar
purposes allowed Grantee hereunder. Grantor may, at any time, grant authorization to use the
Public Rights of Way for any purpose not incompatible with Grantee's authority under this
Agreement and for such additional Franchises for Cable Systems as Grantor deems appropriate
subject to Section 2.6 below.
2.6 Grant of Other Franchises
(A) The Grantor reserves the right to grant additional Franchises or similar
authorizations to provide video programming services via Cable Systems or similar
wireline systems located in the Public Rights of Way. Grantor intends to treat
wireline competitors in a nondiscriminatory manner in keeping with federal law. If
the Grantor grants such an additional Franchise or authorization to use the Public
Rights of Way to provide such services and Grantee believes the Grantor has done
so on terms materially more favorable than the obligations under this Agreement,
then the provisions of this Section 2.6 will apply.
(B) As part of this Agreement, the Grantor and Grantee have mutually agreed that the
following material Franchise terms may be used to compare Grantee's Franchise
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to a wireline competitor: a 5% (five percent) Franchise fee, PEG funding, PEG
Access Channels, customer service obligations, and complimentary services
(hereinafter"Material Obligations"). Grantor and Grantee agree that these
Material Obligations bear no relationship to the technology employed by the
Grantee or a wireline competitor and as such can reasonably be expected to be
applied fairly across all wireline competitors.
(C) Within one (1) year of the adoption of a wireline competitor's Franchise or similar
authorization, Grantee must notify the Grantor in writing of the Material Obligations
in this Agreement that exceed the Material Obligations of the wireline competitor's
Franchise or similar authorization. The Grantor shall have one hundred twenty
(120) days to agree to allow Grantee to adopt the same Material Obligations
provided to the wireline competitor, or dispute that the Material Obligations are
different. In the event the Grantor disputes the Material Obligations are different,
Grantee may bring an action in federal or state court for a determination as to
whether the Material Obligations are different and as to what Franchise
amendments would be necessary to remedy the disparity. Alternatively, Grantee
may notify the Grantor that it elects to immediately commence the renewal process
under 47 USC§546 and to have the remaining term of this Franchise shortened to
not more than thirty (30) months.
(D) Nothing in this Section 2.6 is intended to alter the rights or obligations of either
party under applicable federal or state law, and it shall only apply to the extent
permitted under applicable law and FCC orders. In no event will the Grantor be
required to refund or to offset against future amounts due the value of benefits
already received.
(E) This provision does not apply if the Grantor is ordered or required to issue a
Franchise on different terms and conditions, or it is legally unable to do so; and the
relief is contingent on the new Cable Operator actually commencing provision of
service in the market to its first customer. Should the new Cable Operator fail to
continuously provide service for a period of six (6) months, the Grantor has the
right to implement this Agreement with its original terms upon one hundred eighty
(180) days' notice to Grantee.
(F) This Section shall apply separately in the individual member units of local
government who are members of the Commission. Grantee may seek to invoke
the provisions of this Section only in that individual jurisdiction, not in any
jurisdiction where a competitor has not secured a competitive Franchise. This
Section does not apply to open video systems, nor does it apply to common carrier
systems exempted from Franchise requirements pursuant to 47 U.S.C. Section
571; or to systems that serve less than 5% (five per cent) of the geographic area of
the Grantor; or to systems that only provide video services via the public Internet.
2.7 Police Powers
Grantee's rights hereunder are subject to the lawful police powers of Grantor to adopt and enforce
ordinances necessary to the safety, health, and welfare of the general public. Nothing in this
Agreement shall be deemed to waive the requirements of the other codes and ordinances of
general applicability enacted, or hereafter enacted, by Grantor. Grantee agrees to comply with all
applicable laws and ordinances enacted, or hereafter enacted, by Grantor or any other
legally-constituted governmental unit having lawful jurisdiction over the subject matter hereof.
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Nothing in this Section shall be deemed a waiver by Grantee or the Grantor of the rights of
Grantee or the Grantor under applicable law.
2.8 Relations to Other Provisions of Law
This Agreement and all rights and privileges granted under it are subject to, and the Grantee must
exercise all rights in accordance with, applicable law as amended over the Franchise term. This
Agreement is a contract, subject to the Grantor's exercise of its police and other regulatory
powers and such applicable law. This Agreement does not confer rights or immunities upon the
Grantee other than as expressly provided herein. In cases of conflict between this Agreement
and any ordinance of general application enacted pursuant to the Grantor's police power, the
ordinance shall govern. Grantee reserves all rights it may have to challenge the lawfulness of any
Grantor ordinance, whether arising in contract or at law. The Grantor reserves all of its rights and
defenses to such challenges,whether arising in contract or at law. The Franchise issued, and the
Franchise fee paid hereunder, are not in lieu of any other required permit, authorization, fee,
charge, or tax, unless expressly stated herein.
2.9 Effect of Acceptance
By accepting the Franchise the Grantee: (1) acknowledges and accepts the Grantor's legal right
to issue and enforce the Agreement; (2) agrees that it will not oppose the Grantor's intervening or
other participation in any proceeding affecting the Cable System; (3) accepts and agrees to
comply with each and every provision of this Agreement; and (4) agrees that the Franchise was
granted pursuant to processes and procedures consistent with applicable law, and that it will not
raise any claim to the contrary.
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS
3.1 Franchise Fees
(A) As compensation for the benefits and privileges granted under this Agreement,
and in consideration of permission to use Public Rights of Way, Grantee shall pay
as a Franchise fee to Grantor, throughout the duration of this Agreement, an
amount equal to five percent (5%) of Grantee's Gross Revenues. Accrual of such
Franchise fees shall commence as of the Effective Date of this Agreement. The
Franchise fees are in addition to all other fees, assessments, taxes, or payments of
general applicability that the Grantee may be required to pay under any federal,
state, or local law to the extent not inconsistent with applicable law. This
Agreement and the Franchise fees paid hereunder are not in lieu of any other
generally applicable required permit, authorization, fee, charge, or tax.
(B) In the event any law or valid rule or regulation applicable to this Franchise limits
Franchise fees below the five percent (5%) of Gross Revenues required herein,
the Grantee agrees to and shall pay the maximum permissible amount and, if such
law or valid rule or regulation is later repealed or amended to allow a higher
permissible amount, then the Grantee shall pay the higher amount up to the
maximum allowable by law, not to exceed five percent(5%) during all affected time
periods.
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3.2 Payments
Grantee's Franchise fee payments to Grantor shall be computed Quarterly. Each Quarterly
payment shall be due and delivered to Grantor no later than forty-five (45) days after the last day
of the preceding Quarter.
3.3 Acceptance of Payment and Recomputation
No acceptance of any payment shall be construed as an accord by Grantor that the amount paid
is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of
any claim Grantor may have for further or additional sums payable or for the performance of any
other obligation of Grantee.
3.4 Quarterly Franchise Fee Reports
Each payment shall be accompanied by a written report to Grantor, verified by an authorized
representative of the Grantee, containing an accurate statement in summarized form, as well as
in detail, and in a form approved by Grantor, of Grantee's Gross Revenues and the computation of
the payment amount.
3.5 Annual Franchise Fee Reports
Grantee shall, no later than one hundred twenty (120) days after the end of each calendar year,
furnish to Grantor a statement verified by an authorized representative of the Grantee, stating the
total amount of Gross Revenues and all payments, deductions, and computations for the period
covered by the payments.
3.6 Audit/Reviews
No more frequently than every twenty-four(24) months, upon thirty (30) days prior written notice,
Grantor shall have the right to conduct an independent audit or review of Grantee's Records
reasonably related to the administration or enforcement of this Agreement. The Grantor may hire
an independent third party to audit or review the Grantee's financial Records, in which case the
Grantee shall provide all necessary Records to the third party. All such Records shall be made
available in the local offices of the Grantee, or provided in electronic format fully compatible with
Grantor's software. If the audit or review shows that Franchise fees have been underpaid by four
percent(4%) or more, Grantee shall reimburse Grantor the reasonable cost of the audit or review
up to fifteen thousand dollars ($15,000)within thirty(30) days of the Grantor's written demand for
same. Records for audit/review purposes shall include without limitation:
(A) Source documents, which demonstrate the original or beginning amount, and the
final amount shown on any report related to and/or included in the determination of
Franchise fees, revenues or expenses related thereto.
(B) Source documents that completely explain any and all calculations related to any
allocation of any amounts involving Franchise fees, revenues, or expenses related
thereto.
(C) Any and all accounting schedules, statements, and any other form of
representation, which relate to, account for, and/or support and/or correlate to any
accounts involving Franchise fees, revenues or expenses related thereto.
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3.7 Interest on Late Payments
Payments not received within forty-five (45) days from the Quarter ending date or are underpaid
shall be assessed interest from the due date at a rate equal to the legal interest rate on judgments
in the State of Oregon.
3.8 Additional Commitments Not Franchise Fees
No term or condition in this Agreement shall in any way modify or affect Grantee's obligation to
pay Franchise fees related to Cable Services to Grantor in accordance with applicable law.
Although the total sum of Franchise fee payments and additional commitments set forth
elsewhere in this Agreement may total more than five percent (5%) of Grantee's Gross Revenues
in any twelve (12) month period, Grantee agrees that the additional commitments herein are not
Franchise fees as defined under federal law,to the extent not inconsistent with applicable federal
law, nor are they to be offset or credited against any Franchise fee payments due to Grantor.
3.9 Costs of Publication
Grantee shall pay the reasonable cost of newspaper notices and publication pertaining to this
Agreement, and any amendments thereto, including changes in control or transfers of ownership,
as such notice or publication is reasonably required by Grantor or applicable law.
3.10 Tax Liability
Payment of the Franchise fees under this Agreement shall not exempt Grantee from the payment
of any generally applicable license, permit fee or other generally applicable fee, tax or charge on
the business, occupation, property or income of Grantee that may be imposed by Grantor.
3.11 Payment on Termination
If this Agreement terminates for any reason, the Grantee shall file with the Grantor within ninety
(90) calendar days of the date of the termination, a financial statement, certified by an
independent certified public accountant, showing the Gross Revenues received by the Grantee
since the end of the previous fiscal year. The Grantor reserves the right to satisfy any remaining
financial obligations of the Grantee to the Grantor by utilizing the funds available in a performance
bond or other security provided by the Grantee.
SECTION 4. ADMINISTRATION AND REGULATION
4.1 Authoritv
Grantor is vested with the power and right to regulate the exercise of the privileges permitted by
this Agreement in the public interest, or to delegate that power and right, or any part thereof,to the
extent permitted under state and local law, to any agent, in its sole discretion. Grantor has vested
the Commission with the administration of this Agreement and Grantee is expected to rely upon,
look to, communicate with and comply with the decisions and orders of the Commissions, it
agents and employees on all cable matters to which the Grantor has lawfully delegated the
exercise of its authority under this Agreement to the Commission during such time that Grantor is
a member of the Commission.
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4.2 Rates and Charqes
All of Grantee's rates and charges related to or regarding Cable Service shall be subject to
regulation by Grantor to the full extent authorized by applicable federal, state and local laws.
4.3 Rate Discrimination
All of Grantee's rates and charges shall be published (in the form of a publicly available rate card),
and shall be nondiscriminatory as to all Persons and organizations of similar classes, under
similar circumstances and conditions. Grantee shall apply its rates in accordance with governing
law, without regard to race, color, familial, ethnic or national origin, religion, age, sex, sexual
orientation, marital, military status, or physical or mental disability, or geographic location in the
Franchise Area to the extent required by applicable law.
4.4 Filing of Rates and Charges
Throughout the term of this Agreement, Grantee shall maintain on file with Grantor a complete
schedule of applicable rates and charges for Cable Service provided under this Agreement.
4.5 Time Limits Strictly Construed
Whenever this Agreement sets forth a time for any act to be performed by Grantee, such time
shall be deemed to be of the essence, and any failure of Grantee to perform within the allotted
time may be considered a material violation of this Agreement and sufficient grounds for Grantor
to invoke any relevant provision of this Agreement. However, in the event that Grantee is
prevented or delayed in the performance of any of its obligations under this Agreement by reason
of a force majeure occurrence, as defined in Section 4.7, Grantee's performance shall be excused
during the force majeure occurrence and Grantee thereafter shall, under the circumstances,
promptly perform the affected obligations under this Agreement or procure a substitute for
performance which is satisfactory to Grantor. Grantee shall not be excused by mere economic
hardship or by misfeasance or malfeasance of its directors, officers, employees, or duly
authorized agents.
4.6 Mid-Term Performance Evaluation Session
(A) Grantor may hold a single performance evaluation session during the term of this
Agreement. Grantor shall conduct such evaluation session.
(B) Evaluation session shall be open to the public and announced at least one week in
advance in a newspaper of general circulation in the Franchise Area.
(C) Evaluation session shall deal with the Grantee's performance of the terms and
conditions of this Agreement and compliance with state and federal laws and
regulations.
(D) As part of the performance evaluation session, Grantee shall submit to the Grantor
a plant survey, report, or map, in a format mutually acceptable to Grantor and
Grantee,which includes a description of the portions of the Franchise Area that are
cabled and have all Cable Services available. Such report shall also include the
number of miles and location of overhead and underground cable plant. If the
Grantor has reason to believe that a portion or all of the Cable System does not
meet the applicable FCC technical standards, the Grantor, at its expense,
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reserves the right to appoint a qualified independent engineer to evaluate and
verify the technical performance of the Cable System.
(E) During the evaluation under this Section, Grantee shall fully cooperate with
Grantor and shall provide such information and documents as necessary and
reasonable for Grantor to perform the evaluation subject to Section 7.2.
4.7 Force Majeure
For the purposes of interpreting the requirements in this Agreement, Force Majeure shall mean:
an event or events reasonably beyond the ability of Grantee to anticipate and control. This
includes, but is not limited to, severe weather conditions, strikes, labor disturbances, lockouts,
war or act of war(whether an actual declaration of war is made or not), insurrection, riots, acts of
public enemy, actions or inactions of any government instrumentality or public utility including
condemnation, accidents for which Grantee is not primarily responsible, fire,flood, or other acts of
God, or documented work delays caused by waiting for utility providers to service or monitor utility
poles to which Grantee's facilities are attached, and documented unavailability of materials and/or
qualified labor to perform the work necessary to the extent that such unavailability of materials or
labor was reasonably beyond the control of Grantee to foresee or control.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Insurance Requirements
(A) General Requirement. Grantee must have adequate insurance during the entire
term of this Agreement to protect against claims for injuries to Persons or damages
to property which in any way relate to, arise from, or are connected with this
Agreement or involve Grantee, its duly authorized agents, representatives,
contractors, subcontractors and their employees.
(B) Initial Insurance Limits. Grantee must keep insurance in effect in accordance with
the minimum insurance limits herein set forth by the Grantor. The Grantee shall
obtain policies for the following initial minimum insurance limits:
(1) Commercial General Liability: Three million dollar($3,000,000) combined
single limit per occurrence for bodily injury, personal injury, and property
damage, and for those policies with aggregate limits, a four million dollar
($4,000,000) aggregate limit; one million dollar($1,000,000) limit for
broadcasters liability.
(2) Automobile Liability: Two million dollar($2,000,000) combined single limit
per accident for bodily injury and property damage; and
(3) Employer's Liability: Two million dollar($2,000,000) limit.
5.2 Deductibles and Self-Insured Retentions
If Grantee changes its policy to include a self-insured retention, the Grantee shall give notice of
such change to the Grantor. Grantor's approval will be given if the self-insured retention is
consistent with standard industry practices. Any deductible or self-insured retention of the
policies shall not in any way limit Grantee's liability to the Grantor.
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(A) Endorsements.
(1) All policies shall contain, or shall be endorsed so that:
(a) The Grantor, its officers, officials, employees, and duly authorized
agents are to be covered as, and have the rights of, additional
insureds with respect to liability arising out of activities performed
by, or on behalf of, Grantee under this Agreement or applicable law,
or in the construction, operation or repair, or ownership of its Cable
System;
(b) The Grantee's insurance coverage shall be primary insurance with
respect to the Grantor, its officers, officials, employees, and duly
authorized agents. Any insurance or self-insurance maintained by
the Grantor, its officers, officials, employees, and duly authorized
agents shall be in excess of the Grantee's insurance and shall not
contribute to it;
(c) Grantee's insurance shall apply separately to each insured against
whom a claim is made or lawsuit is brought, except with respect to
the limits of the insurer's liability; and
(d) The policy shall not be suspended, voided, canceled, or reduced in
coverage or in limits, nor shall the intention not to renew be stated
by the insurance company except after forty-five (45) days prior
written notice, return receipt requested, has been given to the
Grantor.
(B) Acceptability of Insurers. The insurance obtained by Grantee shall be placed with
insurers with an A.M. Best's rating of no less than "A-".
(C) Verification of Coverage. The Grantee shall furnish the Grantor with certificates of
insurance and endorsements or a copy of the page of the policy reflecting blanket
additional insured status. The certificates and endorsements for each insurance
policy are to be signed by a Person authorized by that insurer to bind coverage on
its behalf. The certificates and endorsements for each insurance policy are to be
on standard forms or such forms as are consistent with standard industry
practices, and are to be received and approved by the Grantor prior to the
commencement of activities associated with this Agreement. The Grantee hereby
warrants that its insurance policies satisfy the requirements of this Agreement and
Grantor's ordinances and laws.
5.3 Indemnification
(A) Scope of Indemnity. Grantee shall, at its sole cost and expense, indemnify, hold
harmless, and defend the Grantor and its officers, boards, commissions, duly
authorized agents, and employees against any and all claims, including, but not
limited to, third party claims, suits, causes of action, proceedings, and judgments
for damages or equitable relief, to the extent such liability arises out of or through
the acts or omissions of the Grantee arising out of the construction, operation or
repair of its Cable System regardless of whether the act or omission complained of
is authorized, allowed, or prohibited by this Agreement, provided, however, the
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Grantee will not be obligated to indemnify Grantor should Grantor intervene in any
proceeding regarding the grant of this Agreement pursuant to Section 2.9 of this
Agreement; and provided further Grantee will not be obligated to indemnify
Grantor for damage or injury resulting from the negligence or willful negligence of
Grantor. Without limiting in any way the Grantee's obligation to indemnify the
Grantor and its officers, boards, commissions, duly authorized agents, and
employees, as set forth above, this indemnity provision also includes damages
and liabilities such as:
(1) To persons or property, to the extent such liability arises out of or through
the acts or omissions of the Grantee, its contractors, subcontractors, and
their officers, employees, or duly authorized agents, or to which the
Grantee's negligence or fault shall in any way contribute;
(2) Arising out of any claim for invasion of the right of privacy; for defamation of
any Person, firm or corporation; for the violation or infringement of any
copyright, trademark, trade name, service mark, or patent; for a failure by
the Grantee to secure consents from the owners or authorized distributors
of programs to be delivered by the Cable System; or for violation of any
other right of any Person,to the extent such liability arises out of or through
the acts or omissions of the Grantee, provided, however, that Grantee will
not be required to indemnify Grantor for any claims arising out of use of
PEG Access Channels or use of PEG funds by Grantor and/or DAP;
(3) Arising out of Grantee's failure to comply with the provisions of any federal,
state or local statute, ordinance, rule or regulation applicable to the
Grantee with respect to any aspect of its business to which this Agreement
applies, to the extent such liability arises out of or through the acts or
omissions of the Grantee; and
(4) Arising from any third party suit, action or litigation, whether brought by a
competitor to Grantee or by any other Person or entity, to the extent such
liability arises out of or through the acts or omissions of the Grantee,
whether such Person or entity does or does not have standing to bring such
suit, action or litigation if such action (1) challenges the authority of the
Grantor to issue this Agreement to Grantee; or (2) alleges that, in issuing
this Agreement to Grantee, the Grantor has acted in a disparate or
discriminatory manner.
(B) Duty to Give Notice and Tender Defense. The Grantor shall give the Grantee
timely written notice of any claim or of the commencement of any action, suit or
other proceeding covered by the indemnity obligation in this Section. In the event
any such claim arises, the Grantor or any other indemnified party shall tender the
defense thereof to the Grantee and the Grantee shall have the obligation and duty
to defend, settle or compromise any claims arising thereunder, and the Grantor
shall cooperate fully therein. Grantee shall accept or decline the tender within
thirty (30) days. Grantee shall reimburse reasonable attorney fees and costs
incurred by the Grantor during the thirty (30) day period in which the Grantee
accepts or declines tender. In the event that the Grantee declines defense of the
claim in violation of Section 5.3, the Grantor may defend such claim and seek
recovery from Grantee its expenses for reasonable attorney fees and
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disbursements, including expert witness fees, incurred by Grantor for defense and
in seeking such recovery.
5.4 Performance Bond
(A) In addition to any other generally applicable bond or security fund obligations
required by local ordinance, upon the Effective Date of this Agreement, the
Grantee shall furnish proof of the posting of a faithful performance bond running to
the Grantors collectively with good and sufficient surety approved by the
Commission, in the penal sum of Three Hundred Fifty Thousand Dollars
($350,000.00), conditioned that Grantee shall well and truly observe, fulfill and
perform each term and condition of this Agreement. Such bond shall be issued by
a bonding company licensed to do business in the state of Oregon and shall be
maintained by the Grantee throughout the term of this Agreement.
(B) The bond shall contain a provision that it shall not be terminated or otherwise
allowed to expire without thirty (30) days written notice first being given to the
Grantor. The bond shall be subject to the approval of the Grantor or the
Commission as to its adequacy under the requirements of this Section. During the
term of the bond, Grantee shall file with the Grantor a duplicate copy of the bond
along with written evidence of payment of the required premiums unless the bond
otherwise provides that the bond shall not expire or be terminated without thirty
(30) days prior written notice to the Grantor.
SECTION 6. CUSTOMER SERVICE
6.1 Customer service obligations are set forth herein as Attachment A and are hereby
incorporated by this reference.
6.2 Emergency Broadcast. Grantee will comply with the Emergency Alert System (EAS) as
provided under applicable FCC Regulations, the Oregon State EAS Plan and the local
EAS plan, if any, that applies to Grantor.
6.3 ADA Accessible Equipment. Grantee shall comply with the Americans with Disabilities
Act("ADA"), any amendments thereto and any other applicable federal, state or local laws
or regulations. Grantee shall notify Subscribers of the availability of ADA equipment and
services and shall provide such equipment and services in accordance with federal and
state laws.
6.4 Discriminatory Practices. Grantee shall not deny Cable Service, or otherwise discriminate
against Subscribers, Programmers or any other Persons on the basis of race, color,
religion, age, sex, national origin, sexual orientation or physical or mental disability.
Grantee shall comply at all times with all other applicable federal, state or local laws, rules
and regulations relating to non-discrimination.
SECTION 7. REPORTS AND RECORDS
7.1 Open Records
(A) Grantee shall manage all of its operations in accordance with a policy of keeping
its documents and Records open and accessible to Grantor. Grantor shall have
access to, and the right to inspect, any books and Records of Grantee, its Parent
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Corporations and Affiliated entities that are reasonably related and necessary to
the administration or enforcement of the terms of this Agreement. Grantee shall
not deny Grantor access to any of Grantee's Records on the basis that Grantee's
Records are under the control of any Parent Corporation, Affiliated entity or a third
party. Grantor may, in writing, request copies of any such Records or books and
Grantee shall provide such copies within ten (10) business days of the transmittal
of such request. If the requested books and Records are too voluminous, or for
security reasons cannot be copied or removed, then Grantee may request, in
writing within ten (10) business days, that Grantor inspect them at one of Grantee's
local area offices. If any books or Records of Grantee are not kept in a local office,
Grantee will provide or otherwise make such documents available for inspection
and review at the local office within ten (10) business days.
(B) Grantee shall provide Grantor with a sample Cable Services bill, on a monthly
basis. Cable Services bills associated with complimentary services accounts
provided under this Agreement shall satisfy this requirement.
(C) Grantee shall at all times maintain and allow Grantor, with reasonable notice,
access and the right to review a full and complete set of plans, Records and "as
built" maps showing the approximate location of all Cable System equipment
installed or in use in the Franchise Area, exclusive of electronics, Subscriber drops
and equipment provided in Subscribers' homes. These maps shall be maintained
in a standard format and medium consistent with Grantee's regular business
practices. Grantor's review of the plans, Records, and as-built maps, provided for
herein, shall occur at the Grantee's local office.
(D) The ability for Grantor to obtain Records and information from Grantee is critical to
the administration of this Agreement and the requirements herein. Therefore,
Grantee's failure to comply with the requirements of this Section may result in fines
as prescribed in Section 15.
7.2 Confidentialitv
Subject to the limits of the Oregon Public Records Law, Grantor agrees to treat as confidential any
books and Records that constitute proprietary or confidential information under federal or state
law, to the extent Grantee makes Grantor aware of such confidentiality. Grantee shall be
responsible for clearly and conspicuously stamping the word "Confidential" on each page that
contains confidential or proprietary information, and shall provide a brief written explanation as to
why such information is confidential under state or federal law. If Grantor believes it must release
any such confidential books and Records in the course of enforcing this Agreement, or for any
other reason, it shall advise Grantee in advance so that Grantee may take appropriate steps to
protect its interests. If Grantor receives a demand from any Person for disclosure of any
information designated by Grantee as confidential, Grantor shall, so far as consistent with
applicable law, advise Grantee and provide Grantee with a copy of any written request by the
party demanding access to such information within a reasonable time. Until otherwise ordered by
a court or agency of competent jurisdiction, Grantor agrees that, to the extent permitted by state
and federal law, it shall deny access to any of Grantee's books and Records marked confidential
as set forth above to any Person.
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7.3 Copies of Federal and State Documents
Upon thirty (30) days of a request by Grantor, Grantee shall submit to Grantor a list, or copies of
actual documents, of all pleadings, applications, notifications, communications and documents of
any kind, submitted by Grantee or its Parent Corporations or Affiliates to any federal, state or local
courts; regulatory agencies or other government bodies if such documents specifically relate to
the operations of Grantee's Cable System within the Franchise Area. To the extent allowed by
law, any such confidential material determined to be exempt from public disclosure shall be
retained in confidence by Grantor and its duly authorized agents and shall not be made available
for public inspection.
7.4 Complaint File and Reports
(A) Grantee shall keep an accurate and comprehensive Record of any and all
complaints regarding the operation and performance of the Cable System within
the Franchise Area, in a manner consistent with the privacy rights of Subscribers,
and Grantee's actions in response to those complaints. Those Records shall be
retained for three (3) years, and remain available to Grantor during Normal
Business Hours.
(1) Grantee shall provide an executive summary report Quarterly (within
forty-five (45) days of the end of the preceding Quarter)to Grantor, which
shall include the following information:
(a) Nature and type of customer complaints.
(b) Number, duration, general location and customer impact of
unplanned service interruptions.
(c) Any significant construction activities which affect the quality or
otherwise enhance the service of the Cable System.
(d) Subscriber reports indicating the total number of Subscribers by
service categories in such format as Grantee commonly prepares
such reports, including Total Subscribers, Equivalent Billing Unit
("EBU") Reporting Number, Basic Tier Subscribers, and "Pay"
Subscribers.
(e) Total disconnections and major reasons for those disconnections.
(f) Total number of service calls.
(g) Video programming changes (additions/deletions).
(h) A Telephone Response activity report provided in a manner
consistent with the requirements of Attachment A showing Total
Calls Answered within thirty (30) seconds, Average Hold Time,
Percent of Calls Answered within thirty (30) Seconds, Percent of
Abandoned Calls, and the Percent of Lines Available. A sample of
an acceptable report pursuant to this Section is attached to this
Agreement as Attachment B.
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(i) Such other information about special problems, activities, or
achievements as Grantee may want to provide Grantor.
(2) Grantor shall also have the right to request such information as appropriate
and reasonable to determine whether or not Grantee is in compliance with
applicable Customer Service Standards, as referenced in Attachment A.
Such information shall be provided to Grantor in such format as Grantee
customarily prepares reports. Grantee shall fully cooperate with Grantor
and shall provide such information and documents as necessary and
reasonable for Grantor to evaluate compliance.
7.5 Inspection of Facilities
Grantor may inspect upon request any of Grantee's facilities and equipment to confirm
performance under this Agreement at any time upon at least twenty-four(24) hours' notice, or, in
case of an emergency, upon demand without prior notice.
7.6 False Statements
Any intentional false or misleading statement or representation in any report required by this
Agreement may be deemed a violation of this Agreement and may subject Grantee to all
remedies, legal or equitable, which are available to Grantor under this Agreement or otherwise.
Grantor shall have the right to determine the severity of the violation based upon the report in
question.
7.7 Report Expense
All reports and Records required under this or any other Section shall be furnished, without cost,
to Grantor.
SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
(A) Grantee's Cable System shall provide the widest diversity of Programming
possible. Grantee shall provide at least the following broad categories of
Programming to the extent such categories are reasonably available:
(1) Educational Programming.
(2) Sports.
(3) General entertainment(including movies).
(4) Children/family-oriented.
(5) Arts, culture and performing arts.
(6) Foreign language.
(7) Science/documentary.
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(8) Weather information.
(9) Programming addressed to diverse ethnic and minority interests in the
Franchise Area; and
(10) National, state, and local government affairs.
(B) Grantee shall not delete any broad category of Programming within its control.
8.2 Parental Control Devices
Upon request by any Subscriber, Grantee shall make available a parental control or lockout
device, traps, or filters to enable a Subscriber to control access to both the audio and video
portions of any or all Channels. Grantee shall inform its Subscribers of the availability of the
lockout device at the time of their initial subscription and periodically thereafter.
8.3 Leased Access Channels
Grantee shall meet the requirements for Leased Access Channels imposed by federal law.
8.4 Continuity of Service
(A) It shall be the right of all Subscribers to continue to receive Cable Service from
Grantee insofar as their financial and other obligations to Grantee are satisfied.
Subject to the force majeure provisions of Section 4.7 of this Agreement, Grantee
shall use its best efforts to ensure that all Subscribers receive continuous,
uninterrupted Cable Service regardless of the circumstances.
(B) In the event of a change in ownership, or in the event a new Cable Operator
acquires the Cable System in accordance with this Agreement, Grantee shall
cooperate with Grantor and such new Cable Operator in maintaining continuity of
service to all Subscribers.
SECTION 9. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
9.1 Management and Control of Access Channels
(A) Grantor may authorize a DAP to control and manage the use of any and all Access
Centers provided by Grantee under this Agreement, including, without limitation,
the operation of Access Channels. To the extent of such designation by Grantor,
as between the DAP and Grantee, the DAP(s) shall have sole and exclusive
responsibility for operating and managing such Access Centers. The Grantor or its
designee may formulate rules for the operation of the Public Access Channel,
consistent with this Agreement; such rules shall not be designed to control the
content of Public Access Programming. Nothing herein shall prohibit the Grantor
from authorizing itself to be a DAP.
(B) Grantee shall cooperate with Grantor and DAPs in the use of the Cable System
and Access Centers for the provision of PEG Access.
(C) Except as provided in this Agreement, the Grantor shall allocate Access resources
to DAPs only.
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(D) The Grantee shall, at Grantee's expense, provide connection, including all
necessary terminal equipment for the transmission, of all PEG Access Channels
required in this Agreement to and from the Grantee's Headend and the DAP
headend as of the Effective Date of this Agreement. If the Grantor designates new
Access providers, or if a current DAP moves its site or location at its own
instigation after the Effective Date of this Agreement, the direct costs to construct
the Cable System from the new site or location to the nearest distribution point of
the Cable System shall not be the responsibility of Grantee and may be funded
from the PEG capital fee under Section 13 of this Agreement.
9.2 Channel Capacity and Use
(A) Upon the Effective Date of this Agreement, all Access Channels provided for
herein are administered by the Grantor or a DAP.
(1) Existing Access Channels: Grantee shall provide five (5) standard
definition ("SD") Downstream Channels for distribution on Grantee's Basic
Service level of Public, Educational, and Governmental Access
Programming. The Channel designations of those Channels as of the
Effective Date of this Agreement shall be: Channel 11; Channel 21;
Channel 23; Channel 28; and Channel 30. Grantee does not relinquish its
ownership of or ultimate right of control over Cable System capacity or a
Channel position by initially designating it for PEG Access use.
(2) Throughout the term of this Agreement, Grantee shall, at Grantee's
expense and free of charge to the Grantor and any DAP, provide and
maintain existing Fiber Upstream links to enable character generated,
pre-recorded, and live cablecasts between the Origination Points provided
pursuant in Section 9.8 and any DAP headend facility to enable the
distribution of PEG Access Programming to Subscribers on PEG
Channels.
9.3 Standard Definition Channels
Grantee shall carry all components of the SD Access Channel Signals provided by the DAP
including, but not limited to, closed captioning, stereo audio and other elements associated with
the Programming. The DAP shall be responsible for providing the Access Channel Signal in a SD
format to the Demarcation point at the designated point of origination for the Access Channel.
Grantee shall be responsible for costs associated with the transport and distribution of the SD
Access Channel on its side of the Demarcation point.
9.4 High Definition Channels
(A) Within one hundred twenty (120) days of the Effective Date of this Agreement, or a
later date mutually agreed upon by Grantee and Grantor, following written notice
by the Grantor, Grantee shall activate one (1) of the existing Access Channels, as
designated by the Grantor, in high definition ("HD") format and simultaneously
carry that SD Access Channel Signal provided under Section 9.2.
(B) Grantee shall carry all components of the HD format Access Channel Signals
provided by the DAP including, but not limited to, closed captioning, stereo audio
and other elements associated with the Programming. The DAP shall be
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responsible for the costs associated with providing the Access Channel Signal in
an HD format to the Demarcation point at the designated point of origination for the
Access Channel. Grantee shall be responsible for actual costs associated with the
transport and distribution of the HD Access Channel on its side of the Demarcation
point, except that Grantee may offset its actual costs in an amount not to exceed
Eight Thousand Dollars ($8,000) per PEG Channel against the PEG capital fee in
Section 13 for the one-time purchase of network equipment associated with the
provision of HD PEG Programming.
(C) Additional HD PEG Access Channels.
(1) No earlier than twelve (12) months after the Effective Date of this
Agreement, and upon one hundred sixty (160) days written notice from
Grantor, which notice may be sent prior to the twelfth (12th) month after the
Effective Date, Grantee shall provide and activate one (1) more of the
existing SD Access Channels provided under Section 9.2, as designated
by written notice of the Grantor, in an HD format, and simultaneously carry
the SD Signal of that Channel for a total of two (2) HD format Access
Channels.
(2) No earlier than four(4) years following the Effective Date of this
Agreement, and upon one hundred sixty (160) days written notice from
Grantor, Grantee shall provide and activate one(1) more of the existing SD
Access Channels provided under Section 9.2, as designated by written
notice of the Grantor, in an HD format, and simultaneously carry the SD
Signal of that Channel for a total of three (3) HD format Access Channels
(subject to the conditions in Section 9A.0 (3) below). The maximum
number of PEG Access Channels to be provided under this Agreement
after year four(4), whether in HD or SD, shall be eight (8).
(3) Activation of the third (3rd) HD Access Channel under Section 9.4.0 (2)
above shall be subject to the following conditions:
(a) At least eighty percent (80%) of the basic tier Channels (or its
equivalent tier), excluding the Access Channels, are provided in
HD;
(b) On the SD Access Channel identified by the Grantor to be simulcast
as the third (3`d) HD Channel, at least eighty percent (80%) of the
Programming carried on that Access Channel is produced in HD
format for the three (3) month time period prior to the notice
provided under this Section; and
(c) On the SD Access Channel identified by the Grantor to be simulcast
as the third (3`d) HD Channel, not more than fifty percent (50%) of
the Access Programming content carried on that SD Access
Channels is character-generated only Programming for the three
(3) month time period prior to the notice provided under this
Section.
(D) Grantee shall have no more than one hundred twenty (120) days from the date of
the written notices in this Section 9.4 to fully activate the Access Channels from the
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DAP to Subscribers in the HD format. Grantee shall verify HD Channel Signal
delivery to Subscribers with the DAP. Upon request, Grantor shall provide
documentation to confirm that the criteria set forth above has been met.
(E) At such time as all other Basic Service Channels (or its equivalent tier) excluding
Access Channels, are carried in HD, all remaining SD Access Channel Signals will
also be carried by Grantee in HD, at which time the SD Channels will be
discontinued and the maximum number of PEG Access Channels shall be five (5)
HD Channels.
(F) The Grantor acknowledges that receipt of HD format Access Channels may
require Subscribers to buy or lease special equipment, or pay additional HD
charges applicable to HD services. Grantee shall not be obligated to provide
complimentary HD receiving equipment to institutional or courtesy accounts as a
result of the obligations set forth in this Section 9.4.
9.5 Quality of SD and HD Access Channel Signals.
The Grantee shall not unreasonably discriminate against SD and HD Access Channels with
respect to accessibility, functionality and to the application of any applicable FCC Rules and
Regulations, including without limitation Subpart K Channel Signal standards. With respect to
Signal quality, Grantee shall not be required to carry an Access Channel in a higher quality format
than that of the Channel Signal delivered to Grantee, but Grantee shall distribute the Access
Channel Signal without degradation. There shall be no restriction on Grantee's technology used
to deploy and deliver SD or HD Signals so long as the requirements of this Agreement are
otherwise met. Grantee may implement HD carriage of PEG Access Channels in any manner
(including selection of compression, utilization of IP, and other processing characteristics) that
produces a Signal quality for the Subscriber that is reasonably comparable and functionally
equivalent to similar commercial HD Channels carried on the Cable System. In the event the
Grantor believes and provides evidence that Grantee fails to meet this standard, Grantor will
notify Grantee of such concern, and Grantee will respond to any complaints in a timely manner.
Disputes under this Section 9.5 shall be addressed through the Franchise enforcement
procedures set forth in Section 15. Upon reasonable written request by a DAP, Grantee shall
verify that Access Channel Signal delivery to Subscribers is consistent with the requirements of
this Section 9.5.
9.6 Relocation of Access Channels
Grantee shall make reasonable efforts to coordinate the cablecasting of all Programming on the
Cable System on the same Channel designations as such Programming is currently cablecast in
the Franchise Area as set forth in Section 9.2 herein. If at any time during the duration of this
Agreement, Grantee reassigns the location of an Access Channel on its Cable System, Grantee
shall provide at least sixty (60) days advance notice to the Grantor and the DAP(s). Grantee shall
make "best efforts" in the event of Channel relocation, to place the Access Channels within
reasonable proximity from the Channel location for network affiliate. Grantee shall also make
"best efforts"to assign the HD PEG Access Channel a number near the other HD local broadcast
stations if such Channel positions are not already taken, or if that is not possible, near HD
news/public affairs Programming Channels if such Channel positions are not already taken, or if
not possible, as reasonably close as available Channel numbering will allow. Grantee shall
ensure that Subscribers are notified of such reassignment in accordance with the notice
requirements in Attachment A that include its customer messaging function, for at least fifteen
(15) days prior to the change and fifteen (15) days after the change. In conjunction with any
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reassignment of any SD Access Channels, Grantee shall provide either(1) a reimbursement up to
Five Thousand Dollars ($5,000)to the Grantors collectively or the Commission for actual costs
associated with the change, or(2) Nine Thousand Dollars ($9,000) of in-kind airtime on advertiser
supported Channels to the Grantors collectively or the Commission for the purpose of airing
multiple thirty (30) second public service announcements produced by DAP. The Grantor shall
cooperate with the DAP and Grantee for such airing. All reimbursement, whether in cash or
in-kind, shall be paid or provided on a per-event basis, regardless of the number of Channels
affected by the change.
9.7 Access Interconnections
The Grantee shall, at Grantee's expense and free of charge to the Grantor and any DAP, maintain
for the duration of this Agreement any and all existing Interconnections of Access Channels with
contiguous Cable Systems owned by the Grantee as of the Effective Date of this Agreement, in
order to receive from and deliver to the DAP's headend, via the Grantee's Headend, all the
Access Channels required by this Agreement and originating by the Grantor or its designee.
9.8 Origination Points
(A) The existing Origination Points listed in Attachment C I will remain available, at the
expense of Grantee, for use by the DAP to enable the distribution of PEG Access
Programming on the Cable System during the term of this Agreement. _
(B) The additional permanent Origination Points required by the Grantor or DAP listed
in Attachment C II shall be provided by Grantee within ninety (90) days following
receipt of written notice from Grantor, at the expense of Grantee.
(C) The additional Origination Points that may be required by the Grantor or a DAP at
the future public sites listed on Attachment CIII, shall be provided by Grantee
within ninety (90) days following receipt of written notice from Grantor, at the
expense of Grantee, up to a distance of one hundred twenty-five (125) feet from
Grantee's existing outside plant facilities provided that Grantee can reach the
Demarcation point using (1) existing conduit, (2) conduit provided by Grantor, or
(3) an aerial connection. Grantor shall be responsible for any additional actual
connection costs beyond the one hundred twenty-five (125) feet. Such additional
costs may be paid for from the PEG capital fee in Section 13.
(D) Additional permanent Origination Points requested by the Grantor or DAP in
writing shall be provided by Grantee as soon as reasonably possible at the
expense of Grantor or DAP. Such costs may be paid for from the PEG capital fee
in Section 13.
(E) There shall be no charge to the Grantor, to the Commission, to any other DAP, or
to any other Person for the use of the Upstream Capacity from the program
origination locations described in this Section, so long as the transmissions are
designed for re-routing and distribution on any PEG Channel(s).
9.9 Changes in Technology
In the event Grantee makes any change in the Cable System and related equipment and facilities
or in Grantee's Signal delivery technology, which directly or indirectly affects the Signal quality or
transmission of Access services or Programming or requires Grantor to obtain new equipment in
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order to be compatible with such change for purposes of transport of and delivery of any Access
Channels (SD or HD), Grantee shall, at its own expense and free of charge to Grantor and DAP,
take necessary technical steps or provide necessary technical assistance, including the purchase
or acquisition and maintenance of all necessary equipment, and training of Grantor's Access
personnel to ensure that the capabilities of Access services are not diminished or adversely
affected by such change.
9.10 Technical Quality
The Grantee shall maintain all Upstream and Downstream Access services, Programming and
Interconnections at the same level of technical quality and reliability required by this Agreement
and all other applicable laws, rules and regulations. Grantee shall provide routine maintenance
and shall repair and replace all transmission equipment, including transmitters/receivers,
associated cable and equipment in use upon the Effective Date of this Agreement, necessary to
carry a quality Signal to and from Demarcation at Grantor's or DAP's facilities.
9.11 PEG Access Program Listings On Cable System's Digital Channel Guide
To the extent the configuration of the Cable System allows for detailed program listings to be
included on the digital Channel guide, Grantee will allow Grantor or the DAP to make
arrangements with the Channel guide vendor to make detailed Programming listings available on
the guide. The Grantor or DAP will be solely responsible for providing the program information to
the vendor in the format and timing required by the vendor and shall bear all costs of this guide
service. The cost for this service may be funded by the PEG capital fee as set forth in Section 13.
SECTION 10. GENERAL STREET USE AND CONSTRUCTION
10.1 Construction
(A) Subject to applicable laws, regulations and ordinances of Grantor and the
provisions of this Agreement, Grantee may perform all construction and
maintenance necessary for the operation of its Cable System. All construction and
maintenance of any and all facilities within the Public Rights of Way incident to
Grantee's Cable System shall, regardless of who performs the construction, be
and remain Grantee's responsibility. Except as permitted in Section 10.1( D), prior
to performing any construction or maintenance in the Public Rights of Way,
Grantee shall apply for, and obtain, all necessary permits. Grantee shall pay, prior
to issuance, all applicable fees of the requisite construction permits and give
appropriate notices to any other Cable Operators, licensees or permittees of the
Grantor, or other units of government owning or maintaining pipes, wires, conduits
or other facilities which may be affected by the proposed excavation.
(B) All construction shall be performed in compliance with this Agreement, all
applicable Grantor ordinances and codes, and any permit issued by the Grantor.
When obtaining a permit, Grantee shall inquire in writing about other construction
currently in progress, planned or proposed, in order to investigate thoroughly all
opportunities for joint trenching or boring. Whenever it is possible and reasonably
practicable to joint trench or share bores or cuts, Grantee shall work with other.
providers, Cable Operators, and permittees so as to reduce as far as possible the
number of Street cuts.
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(C) Grantor shall have the right to inspect all construction or installation work
performed within the Franchise Area as it shall find necessary to ensure
compliance with the terms of this Agreement, other pertinent provisions of law, and
any permit issued by the Grantor.
(D) In the event that emergency repairs are necessary, Grantee shall immediately
notify the City of the need for such repairs. Grantee may initiate such emergency
repairs, and shall apply for appropriate permits as soon as reasonably practicable
but in no event later than forty-eight (48) hours after discovery of the emergency.
Grantee shall comply with all applicable City regulations relating to such
excavations or construction, including the payment of permit or license fees.
(E) Whenever possible, to avoid additional wear and tear on the Public Rights of Way,
Grantee shall utilize existing poles and conduit. Grantee may charge for use of the
conduit consistent with all applicable laws. Notwithstanding the foregoing, this
Agreement does not grant, give or convey to the Grantee the right or privilege to
install its facilities in any manner on specific utility poles or equipment of the
Grantor or any other Person without their permission. Copies of agreements for
use of poles, conduits or other utility facilities must be provided upon request by
the Grantor upon demonstrated need and subject to protecting Grantee's
proprietary information from disclosure to third parties.
10.2 Location of Facilities
Grantee shall comply with the requirements of Oregon Utility Notification Center ORS
757.542-757.562 and ORS 757.993 (2009) (penalty for violation of utility excavation notification
provisions), and applicable rules and regulations promulgated thereunder in OAR Chapter 952
relating to Oregon Utility Notification Center.
10.3 Relocation
(A) Relocation for Grantor.
(1) Grantor shall have the right to require Grantee to change the location of
any part of Grantee's Cable System within the Public Rights of Way when
the public convenience requires such change, and the expense thereof
shall be paid by Grantee (however payment by Grantee shall in no way limit
Grantee's right, if any, to seek reimbursement for such costs from any third
party). Should Grantee fail to remove or relocate any such facilities by the
date established by Grantor, Grantor may effect such removal or
relocation, and the expense thereof shall be paid by Grantee, including all
costs and expenses incurred by Grantor due to Grantee's delay. If Grantor
requires Grantee to relocate its facilities located within the Public Rights of
Way, Grantor shall make a reasonable effort to provide Grantee with an
alternate location within the Public Rights of Way.
(2) If public funds, which Grantor received, are available to any other user of
the Public Rights of Way (except for Grantor) for the purpose of defraying
the cost of relocating or removing facilities and Grantee relocates or
removes its facilities as required by Grantor under this Agreement, the
Grantor shall notify Grantee of such funding and will consider reimbursing
Grantee for such costs to the extent permitted or allowed by the funding
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source or applicable state law and to the extent other users of the Public
Rights of Way are provided such funds.
(B) Relocation by Grantor. The Grantor may remove, replace, modify or disconnect
Grantee's facilities and equipment located in the Public Right of Way or on any
other property of the Grantor in the case of fire, disaster, or other emergency,
provided that Grantor shall be responsible for any damage to Grantee's facilities
as a result of Grantor's negligence or gross negligence in performing work under
this Section. The Grantor shall attempt to provide notice to Grantee prior to taking
such action and shall, when feasible, provide Grantee with the opportunity to
perform such action.
(C) Movement for Other Franchise Holders. If any removal, replacement, modification
or disconnection is required to accommodate the construction, operation or repair
of the facilities or equipment of another Franchise holder, Grantee shall, after at
least thirty (30) days' advance written notice, take action to effect the necessary
changes requested by the responsible entity. Grantee and such other Franchise
holder shall determine how costs associated with the removal or relocation
required herein shall be allocated.
(D) Movement for Other Permittees. At the request of any Person holding a valid
permit and upon reasonable advance notice, Grantee shall temporarily raise,
lower or remove its wires as necessary to permit the moving of a building, vehicle,
equipment or other item. The permit holder must pay the expense of such
temporary changes, and Grantee may require the permit holder to pay the full
amount in advance.
10.4 Restoration of Public Rights of Way
Whenever Grantee excavates, damages, or disturbs the surface of any Public Right of Way for
any purpose, including but not limited to relocation or undergrounding as required in this Section,
Grantee shall promptly restore the Public Right of Way to the satisfaction of the Grantor in
accordance with applicable Grantor ordinances and codes and any permit issued by the Grantor.
In the event there is no applicable ordinance, code or permit, Grantee shall promptly restore the
Public Right of Way to at least its prior condition. Unless otherwise provided in any permit issued
by Grantor, when any opening is made by Grantee in a hard surface pavement in any Public Right
of Way, Grantee shall refill within twenty-four(24) hours. Grantee shall be responsible for
restoration and maintenance of the Public Right of Way and its surface affected by the excavation
in accordance with applicable regulations of the Grantor. Grantor may, after providing notice to
Grantee, or without notice where the disturbance or damage may create a risk to public health or
safety, refill or repave any opening made by Grantee in the Public Rights of Way, and the expense
thereof shall be paid by Grantee. Grantor may, after providing notice to Grantee, remove and/or
repair any work done by Grantee that, in the determination of Grantor, is inadequate. The cost
thereof, including the costs of inspection and supervision, shall be paid by Grantee. Within thirty
(30) days of receipt of an itemized list of those costs, including the costs of labor, materials and
equipment, the Grantee shall pay the Grantor. All excavations made by Grantee in the Public
Rights of Way shall be properly safeguarded for the prevention of accidents. All of Grantee's work
under this Agreement, and this Section in particular, shall be done in strict compliance with all
rules, regulations and ordinances of Grantor.
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10.5 Maintenance and Workmanship
(A) Grantee's Cable System shall be constructed and maintained in such manner as
not to interfere with sewers, water pipes, or any other property of Grantor, or with
any other pipes, wires, conduits, pedestals, structures, equipment or other
facilities that may have been laid in the Public Rights of Way by, or under,
Grantor's authority.
(B) Grantee shall maintain and use any equipment necessary to control and carry
Grantee's cable television Signals so as to prevent injury to Grantor's property or
property belonging to any Person. Grantee, at its own expense, shall repair,
change and improve its facilities to keep them in good repair, and safe and
presentable condition.
10.6 Reservation of Grantor Public Rights of Way
Nothing in this Agreement shall prevent Grantor or utilities owned, maintained or operated by
public entities other than Grantor, from constructing sewers; grading, paving, repairing or altering
any Public Right of Way; repairing or removing water mains; or constructing or establishing any
other public work or improvement. All such work shall be done, insofar as practicable, so as not to
obstruct, injure or prevent the use and operation of Grantee's Cable System. However, if any of
Grantee's Cable System interferes with the construction or repair of any Public Right of Way or
public improvement, including construction, repair or removal of a sewer or water main or any
other public work, Grantee's Cable System shall be removed or replaced in the manner Grantor
shall direct, and Grantor shall in no event be liable for any damage to any portion of Grantee's
Cable System. Any and all such removal or replacement shall be at the expense of Grantee.
Should Grantee fail to remove, adjust or relocate its facilities by the date established by Grantor's
written notice to Grantee, Grantor may effect such removal, adjustment or relocation, and the
expense thereof shall be paid by Grantee, including all reasonable costs and expenses incurred
by Grantor due to Grantee's delay.
10.7 Use of Conduits by Grantor
Grantor may install or affix and maintain wires and equipment owned by Grantor for governmental
purposes in or upon any and all of Grantee's ducts, conduits or equipment in the Public Rights of
Way and other public places without charge to Grantor, to the extent space therein or thereon is
reasonably available and feasible without compromising the integrity of the Cable System or
facility, and pursuant to all applicable ordinances and codes. For the purposes of this Section
10.7, "governmental purposes" includes, but is not limited to, the use of the structures and
installations by Grantor for fire, police, traffic, water, telephone, or signal systems, but not for
Cable System purposes or provision of services in competition with Grantee. Grantee shall not
deduct the value of such use of its facilities from its Franchise fees payable to Grantor except as
otherwise may be authorized by federal law.
10.8 Public Rights of Way Vacation
If any Public Right of Way or portion thereof used by Grantee is vacated by Grantor during the
term of this Agreement, unless Grantor specifically reserves to Grantee the right to continue its
installation in the vacated Public Right of Way, Grantee shall, without delay or expense to
Grantor, remove its facilities from such Public Right of Way, and restore, repair or reconstruct the
Public Right of Way where such removal has occurred, and place the Public Right of Way in such
condition as may be required by Grantor. In the event of failure, neglect or refusal of Grantee,
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after thirty(30) days' notice by Grantor, to restore, repair or reconstruct such Public Right of Way,
Grantor may do such work or cause it to be done, and the reasonable cost thereof, as found and
declared by Grantor, shall be paid by Grantee within thirty (30) days of receipt of an invoice and
documentation, and failure to make such payment shall be considered a material violation of this
Agreement.
10.9 Discontinuing Use of Facilities
Whenever Grantee intends to discontinue using any facility within the Public Rights of Way,
Grantee shall submit for Grantor's approval a complete description of the facility and the date on
which Grantee intends to discontinue using the facility. Grantee may remove the facility or
request that Grantor allow it to remain in place. Notwithstanding Grantee's request that any such
facility remain in place, Grantor may require Grantee to remove the facility from the Public Rights
of Way or modify the facility to protect the public health, welfare, safety, and convenience, or
otherwise serve the public interest. Grantor may require Grantee to perform a combination of
modification and removal of the facility. Grantee shall complete such removal or modification in
accordance with a reasonable schedule set by Grantor. Until such time as Grantee removes or
modifies the facility as directed by Grantor, or until the rights to and responsibility for the facility
are accepted by another Person having authority to construct and maintain such facility, Grantee
shall be responsible for all necessary repairs and relocations of the facility, as well as
maintenance of the Public Rights of Way, in the same manner and degree as if the facility were in
active use, and Grantee shall retain all liability for such facility.
10.10 Hazardous Substances
(A) Grantee shall comply with all applicable local, state and federal laws, statutes,
regulations and orders concerning hazardous substances relating to Grantee's
Cable System in the Public Rights of Way.
(B) Grantee shall maintain and inspect its Cable System located in the Public Rights of
Way. Upon reasonable notice to Grantee, Grantor may inspect Grantee's facilities
in the Public Rights of Way to determine if any release of hazardous substances
has occurred, or may occur, from or related to Grantee's Cable System. In
removing or modifying Grantee's facilities as provided in this Agreement, Grantee
shall also remove all residue of hazardous substances related thereto.
(C) Grantee agrees to forever indemnify the Grantor, its officers, boards,
commissions, duly authorized agents, and employees, from and against any
claims, costs and expenses of any kind, pursuant to and in accordance with
applicable State or federal laws, rules and regulations, for the removal or
remediation of any leaks, spills, contamination or residues of hazardous
substances attributable to Grantee's Cable System in the Public Rights of Way.
1
10.11 Undergrounding of Cable
(A) Where all utility lines are installed underground at the time of Cable System
construction, or when such lines are subsequently placed underground, all Cable
System lines or wiring and equipment shall also be placed underground on a
nondiscriminatory basis with other utility lines at no additional expense to the
Grantor or Subscribers, to the extent permitted by law and applicable safety codes.
Cable must be installed underground where: (1) all existing utility lines are placed
underground, (2) statute, ordinance, policy, or other regulation of an individual
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Grantor or Commission requires utility lines to be placed underground, or(3) all
overhead utility lines are placed underground.
(B) Related Cable System equipment such as pedestals must be placed in
accordance with applicable code requirements and underground utility rules;
provided, however, nothing in this Agreement shall be construed to require
Grantee to construct, operate, or maintain underground any ground-mounted
appurtenances such as customer taps, line extenders, system passive devices,
amplifiers, pedestals, power supplies, or other related equipment. In areas where
electric or telephone utility wiring is aerial, the Grantee may install aerial cable,
except when a property owner or resident requests underground installation and
agrees to bear the reasonable additional cost in excess of aerial installation.
(C) For purposes of this Section 10.11, "utility lines" and "utility wiring"does not include
high voltage electric lines.
10.12 Tree Trimming
Subject to acquiring prior written permission of the Grantor, including any required permit, the
Grantee shall have the authority to trim trees that overhang a Public Right of Way of the Grantor
so as to prevent the branches of such trees from coming in contact with its Cable System, in
accordance with applicable codes and regulations and current, accepted professional tree
trimming practices.
10.13 Construction, Building and Zoning Codes
Grantee shall strictly adhere to all applicable construction, building and zoning codes currently or
hereafter in effect. Grantee shall arrange its lines, cables and other appurtenances, on both
public and private property, in such a manner as to not cause unreasonable interference with the
use of said public or private property by any Person. In the event of such interference, Grantor
may require the removal or relocation of Grantee's lines, cables, and other appurtenances, at
Grantee's cost, from the property in question.
10.14 Standards
(A) All work authorized and required hereunder shall be done in a safe, thorough and
workmanlike manner. The Grantee must comply with all safety requirements,
rules, and practices and employ all necessary devices as required by applicable
law during construction, operation and repair of its Cable System. By way of
illustration and not limitation, the Grantee must comply with applicable provisions
of the National Electrical Code, National Electrical Safety Code and Occupational
Safety and Health Administration (OSHA) Standards.
(B) Grantee shall ensure that individual Cable System drops are properly bonded to
the electrical power ground at the home at time of installation, and are consistent,
in all respects, with applicable provisions of the National Electrical Code and the
National Electrical Safety Code.
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SECTION 11. SYSTEM DESIGN AND STANDARDS
11.1 Subscriber Network
(A) As of the Effective Date of this Agreement, the Cable System utilizes a Fiber to the
node architecture serving no more than fifteen hundred (1,500) Subscribers per
node. All active electronics are 750 MHz capable equipment, or equipment of
higher bandwidth. Grantee agrees to maintain and improve upon this architecture
as demand requires.
(B) Grantee's Subscriber network shall, at all times, meet or exceed the minimum
system design and performance specifications required by the FCC.
11.2 Test and Compliance Procedures
(A) Upon request, Grantee shall advise Grantor of schedules and methods for testing
the Cable System on a regular basis to determine compliance with the provisions
of applicable FCC technical standards. Representatives of Grantor may witness
tests, and written test reports may be made available to Grantor upon request.
(B) As required by FCC Rules, Grantee shall conduct proof of performance tests and
cumulative leakage index tests designed to demonstrate compliance with FCC
requirements. Grantee shall provide Grantor summary written reports of the
results of such tests.
11.3 Standby Power
Grantee shall provide standby power generating capacity at the Cable System Headend capable
of providing at least twelve (12) hours of emergency operation. Grantee shall maintain standby
power system supplies, to the node, rated for at least two (2) hours duration. In addition,
throughout the term of this Agreement, Grantee shall have a plan in place, along with all
resources necessary for implementing such plan, for dealing with outages of more than two (2)
hours.
SECTION 12. INSTITUTIONAL NETWORK SERVICES.
12.1 Hi_ story
Grantee has constructed and provided managed network services through an institutional
network known as the Public Communications Network ("PCN"). The PCN was provided by the
Grantee to the Grantor and the Grantor-authorized Users of the PCN, including public
agencies/Schools, public universities, Pacific University, and the Virginia Garcia Health Centers,
or their successor agencies ("PCN Users"). Grantor and Grantee have agreed to transition the
PCN Users to the managed services provided by Grantee's Metro-E network ("Managed
Services").
12.2 Grantee Responsible for Providing Institutional Network Service
(A) Grantee or an Affiliate shall be fully responsible for and at all times shall operate,
repair, maintain, manage and ensure provision of the Managed Services to all
eligible PCN Users in accordance with the terms of the Master Services
Agreement and all attachments and amendments, including the First Amendment
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and the Rate Card, copies of which are attached hereto as Attachment D
(collectively the "MSA") and the provisions of this Section 12. The parties agree
that regardless of whether Grantee or an Affiliate provides the Managed Services,
these Managed Services comprise an institutional network required under this
Agreement as authorized by Section 611 of the Cable Act, and Grantee is
ultimately responsible for the provision, operation and management of the
Managed Services pursuant to the MSA. During the term of this Agreement,
Grantee shall not terminate nor legally challenge the requirement to provide the
Managed Services as provided in the MSA.
(B) Should any designated Affiliate of the Grantee be unable or unwilling to provide the
Managed Services described in this Section and the MSA, the parties agree that
Grantee is fully and unconditionally responsible for continued provision of the
Managed Services, including the assumption of responsibilities of PCN User
contracts and the MSA.
12.3 Master Services Agreement
Subject to the transition plan set forth in Section 12.4 below, Grantee, or its Affiliate, shall at all
times provide the Managed Services to PCN Users in accordance with an executed MSA.
Grantee shall not offer, and shall not cause any Affiliate to offer, to any PCN User or eligible PCN
User a Managed Services agreement other than the MSA. Where the MSA conflicts with any term
or condition of this Agreement, the MSA shall prevail. If Grantor or any PCN User terminates in
any manner the Managed Services provided under its MSA prior to the expiration date of this
Agreement, such termination shall not affect any other rights or obligations under this Agreement
or obligate Grantee to provide any other managed network or institutional network services to
Grantor or any PCN User.
12.4 Transition/Upgrade to Master Services Agreement
(A) Prior to any transition of a PCN User to services under the MSA, Grantee shall
continue providing PCN services to PCN Users as agreed to under its existing
Grantor-approved PCN User contract. Grantee of its Affiliate shall transition PCN
Users to Managed Services under the MSA within twenty four(24) months from
the Effective Date of this Agreement, but shall implement rates consistent with the
Rate Card no later than January 1, 2016. This will include an upgrade of current
Grantee supplied equipment at PCN User sites at no cost to PCN Users that sign
contracts with a term greater than one (1) year.
(B) Grantee shall develop a proposed transition plan that shall be provided to a current
PCN User no later than three (3) months prior to the proposed transition date. The
PCN User shall have thirty(30)days to review and comment on the proposed plan.
Upon receipt of any comments from the PCN User on the proposed transition plan,
Grantee shall confer with the PCN User and shall provide a mutually agreed upon
transition plan to such User no later than thirty (30) days prior to the transition. If
the PCN User does not comment on the proposed transition plan, the date of the
transition shall be that set forth in the proposed plan.
(C) For network cutover and transition work that will result in service outages, Grantee
shall schedule the work between the hours of 12:00 a.m. and 5:00 a.m., or at
another time agreed to in writing by the affected PCN Users. Grantee shall provide
shorter windows for those cutover activities that can be performed in less than two
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(2) hours. When scheduled work has the potential to use the full five (5) hour
window, Grantee will clearly communicate this to affected PCN Users.
12.5 Breach of the Master Service Agreement
The parties intend that day-to-day issues regarding the provision of Managed Services shall be
addressed and resolved with reference solely to the MSA. If there is a sustained and ongoing
material failure by the Grantee, or its Affiliate, to provide the Managed Services pursuant to the
terms of the MSA, such failure may be deemed a breach of this Agreement and shall be subject to
the fines and procedures set forth in Section 15 of this Agreement. All other breaches of the MSA
shall be subject to the remedies set forth in the MSA.
12.6 Grantor/User Meetings
Grantee and any Affiliate providing the Managed Services agree to meet at least once annually
with the members of the Broadband Users Group ("BUG") or its successor organization, to
discuss planned improvements or changes to the Managed Services provided under a MSA , and
to hear the comments and concerns of the BUG.
12.7 Annual Report to Grantor
Within forty-five (45) days of the end of each calendar year, Grantee shall provide Grantor with a
report listing each PCN User site under the MSA, along with that site's address and the level of
service provided at that site.
12.8 Security
Grantee agrees to abide by all privacy and security requirements in applicable state and federal
laws and regulations with respect to Managed Services provided for in this Section 12.
SECTION 13. PEG ACCESS AND PCN GRANT FUND
Grantee shall support the continued viability of Institutional Network and Public, Educational and
Government (PEG) Programming, through the following funding:
13.1 Fund Payments
During the term of this Agreement, Grantee agrees to collect and pay Grantor Eighty Cents
($0.80) per Subscriber, per month to support the Capital equipment and facility needs of PEG
Access and the Grantor institutional network(previously known as the PCN), which funds shall be
used in accordance with applicable federal law. Nothing in this Section 13 shall be viewed as a
waiver of Grantor's rights to use the funds provided to Grantor in this Section 13.1 for any lawful
purpose permitted under applicable federal law. Grantee shall make such payments Quarterly,
following the Effective Date of this Agreement, for the preceding quarter ending March 31, June
30, September 30, and December 31. Each payment shall be due and payable no later than
forty-five (45) days after the end of each Quarter.
13.2 Annual Grant Award Report
(A) Grantor shall provide a report annually to the Grantee on the use of the funds
provided by to the Grantor under this Section. Reports shall be submitted to the
Grantee within one hundred twenty (120) days of the close of Grantor's fiscal year.
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(B) Grantee may reasonably review Records of the Grantor(and of the DAP) related to
the use of funds in such reports to confirm that funds are used in accordance with
federal law and this Agreement. Grantee will notify the Grantor in writing at least
thirty (30) days prior to the date of such a review and identify the relevant financial
Records of Grantor(and the DAP)that Grantee wants to review. The time period
of the review shall be for the fund payments received no more than thirty-six (36)
months prior to the date the Grantee notifies Grantor of its intent to perform a
review. The Grantor shall make such Records available for inspection and copying
during normal business hours at the office of the Grantor (or the DAP).
13.3 PEG Access Not Franchise Fees
(A) Grantee agrees that financial support for the PEG Access and PCN Grant Fund,
and all other Grantee PEG and PCN obligations set forth in this Agreement shall in
no way modify or otherwise affect Grantee's obligations to pay Franchise fees to
Grantor. Grantee agrees that although the sum of Franchise fee and the
payments set forth in this Section may total more than five percent (5%) of
Grantee's Gross Revenues in any twelve (12) month period, the additional
commitments shall not be offset or otherwise credited in any way against any past,
present or future Franchise fee payments under this Agreement so long as such
fees are used in a manner consistent with this Agreement and federal law.
(B) Grantor recognizes Franchise fees and certain additional commitments are
external costs as defined under the FCC rate regulations in force at the time of
adoption of this Agreement and Grantee has the right and ability to include
Franchise fees and certain other commitments on the bills of cable Subscribers(47
C.F.R. Section 76.922).
SECTION 14. SERVICE EXTENSION, CONSTRUCTION, AND INTERCONNECTION
14.1 Equivalent Service
It is Grantee's general policy that all residential dwelling units in the Franchise Area have
equivalent availability to Cable Service from Grantee's Cable System under nondiscriminatory
rates and reasonable terms and conditions, subject to federal law. Grantee shall not arbitrarily
refuse to provide Cable Service to any Person within its Franchise Area.
14.2 Service Availability
(A) Service to New Subdivisions. Grantee shall provide Cable Service in new
subdivisions upon the earlier of either of the following occurrences: 1)Within sixty
(60) days of the time when foundations have been installed in fifty (50) percent of
the dwelling units in any individual subdivision; or 2) Within thirty (30) days
following a request from a resident. For purposes of this Section, a receipt shall be
deemed to be made on the signing of a service agreement, receipt of funds by the
Grantee, receipt of a written request by Grantee, or receipt by Grantee of a verified
verbal request.
(B) Grantee shall provide such service:
(1) With no line extension charge except as specifically authorized elsewhere
in this Agreement.
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(2) At a nondiscriminatory installation charge for a standard installation,
consisting of a drop no longer than one hundred twenty five (125)feet, with
additional charges for non-standard installations computed according to a
nondiscriminatory methodology for such installations, adopted by Grantee
and provided in writing to Grantor; and at nondiscriminatory monthly rates
for residential Subscribers, subject to federal law.
(C) Required Extensions of Service. Whenever the Grantee shall receive a request for
service from at least ten (10) residences within 1320 cable-bearing strand feet
(one-quarter cable mile) of its trunk or distribution cable, it shall extend its Cable
System to such potential Subscribers at no cost to said Subscribers for Cable
System extension, other than the usual connection fees for all Subscribers within
ninety (90) days, provided that such extension is technically feasible, and if it will
not adversely affect the operation of the Cable System.
(D) Customer Charges for Extensions of Service. No potential Subscriber shall be
refused service arbitrarily. However, for unusual circumstances, such as a
potential Subscriber's request to locate a cable drop underground, existence of
more than one hundred twenty-five (125)feet of distance from distribution cable to
connection of service to such Subscriber, or a density of less than ten (10)
residences per one thousand three hundred twenty (1,320) cable-bearing strand
feet of trunk or distribution cable, service may be made available on the basis of a
capital contribution in aid of construction, including cost of material, labor, and
easements. For the purpose of determining the amount of capital contribution in
aid of construction to be borne by the Grantee and potential Subscribers in the
area in which service may be expanded, the Grantee will contribute an amount
equal to the construction and other costs per mile, multiplied by a fraction whose
numerator equals the actual number of residences per one thousand three
hundred twenty (1320) cable-bearing strand feet of its trunks or distribution cable
and whose denominator equals ten (10) residences. Subscribers who request
service hereunder will bear the remainder of the construction and other costs on a
pro rata basis. The Grantee may require that the payment of the capital
contribution in aid of construction borne by such potential Subscriber be paid in
advance.
(E) Enforcement. Failure to meet these standards shall subject Grantee to
enforcement actions on a per Subscriber basis in Section 15.
14.3 Connection of Public Facilities
As a voluntary initiative, Grantee shall, at no cost to Grantor, provide one (1) outlet of basic and
digital economy tier(or its functional equivalent) Programming to public use buildings, as
designated by the Grantor, and all libraries and Schools. Those portions of buildings housing
prison/jail populations shall be excluded from this requirement. In addition, Grantee agrees to
provide, at no cost, one (1) outlet of basic and digital economy tier(or its functional equivalent)
Programming to all such future public buildings if the drop line to such building does not exceed
one hundred and twenty five (125) cable feet or if Grantor or other agency agrees to pay the
incremental cost of such drop line in excess of one hundred twenty five (125) feet, including the
cost of such excess labor and materials. Outlets of basic and digital economy tier(or its functional
equivalent) Programming provided in accordance with this subsection may be used to distribute
Cable Service throughout such buildings, provided such distribution can be accomplished without
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causing Cable System disruption and general technical standards are maintained. Cost for any
additional outlets shall be the responsibility of Grantor.
SECTION 15. FRANCHISE VIOLATIONS; REVOCATION OF FRANCHISE
15.1 Procedure for Remedying Franchise Violations
(A) If Grantor believes that Grantee has failed to perform any obligation under this
Agreement or has failed to perform in a timely manner, Grantor shall notify Grantee
in writing, stating with reasonable specificity the nature of the alleged violation.
(B) The Grantor must provide written notice of a violation. Upon receipt of notice, the
Grantee will have a period of thirty(30)days to cure the violation or thirty (30) days
to present to the Grantor a reasonable remedial plan. The Grantor shall, with
Grantee's consent, decide whether to accept, reject, or modify the remedial plan
presented by the Grantee. Fines shall be assessed only in the event that either a
cure has not occurred within thirty (30) days or the Grantor rejects the remedial
plan. The procedures provided in Section 15 shall be utilized to impose any fines.
The date of violation will be the date of the event and not the date Grantee receives
notice of the violation provided, however, that if Grantor has actual knowledge of
the violation and fails to give the Grantee the notice called for herein, then the date
of the violation shall be no earlier than ten (10) business days before the Grantor
gives Grantee the notice of the violation. Grantee shall have thirty(30) calendar
days from the date of receipt of such notice to:
(1) Respond to Grantor, contesting Grantor's assertion that a violation has
occurred, and requesting a hearing in accordance with subsection (E)
below, or;
(2) Cure the violation, or;
(3) Notify Grantor that Grantee cannot cure the violation within the thirty (30)
days, and notify the Grantor in writing of what steps the Grantee shall take
to cure the violation, including the Grantee's projected completion date for
such cure. In such case, Grantor shall set a hearing date within thirty (30)
days of receipt of such response in accordance with subsection (C) below.
(C) In the event that the Grantee notifies the Grantor that it cannot cure the violation
within the thirty (30) day cure period, Grantor shall, within thirty (30) days of
Grantor's receipt of such notice, set a hearing. At the hearing, Grantor shall review
and determine whether the Grantee has taken reasonable steps to cure the
violation and whether the Grantee's proposed plan and completion date for cure
are reasonable. In the event such plan and completion date are determined by
mutual consent to be reasonable, the same may be approved by the Grantor, who
may waive all or part of the fines for such extended cure period in accordance with
the criteria set forth in subsection (G) below.
(D) In the event that the Grantee fails to cure the violation within the thirty (30) day
basic cure period, or within an extended cure period approved by the Grantor
pursuant to subsection (C),the Grantor shall set a hearing to determine what fines,
if any, shall be applied.
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(E) In the event that the Grantee contests the Grantor's assertion that a violation has
occurred, and requests a hearing in accordance with subsection (13)(1) above, the
Grantor shall set a hearing within sixty (60) days of the Grantor's receipt of the
hearing request to determine whether the violation has occurred, and if a violation
is found, what fines shall be applied.
(F) In the case of any hearing pursuant to this Section, Grantor shall notify Grantee of
the hearing in writing and at the hearing, Grantee shall be provided an opportunity
to be heard, examine Grantor's witnesses, and to present evidence in its defense.
The Grantor may also hear any other Person interested in the subject, and may
provide additional hearing procedures as Grantor deems appropriate.
(G) The fines set forth in Section 15.2 of this Agreement may be reduced at the
discretion of the Grantor, taking into consideration the nature, circumstances,
extent and gravity of the violation as reflected by one or more of the following
factors:
(1) Whether the violation was unintentional;
(2) The nature of the harm which resulted;
(3) Whether there is a history of prior violations of the same or other
requirements;
(4) Whether there is a history of overall compliance, and/or;
(5) Whether the violation was voluntarily disclosed, admitted or cured.
(H) If, after the hearing, Grantor determines that a violation exists, Grantor may use
one or more of the following remedies:
(1) Order Grantee to correct or remedy the violation within a reasonable time
frame as Grantor shall determine;
(2) Establish the amount of fine set forth in Section 15.2, taking into
consideration the criteria provided for in subsection (G) of this Section as
appropriate in Grantor's discretion;
(3) Revoke this Agreement, and/or;
(4) Pursue any other legal or equitable remedy available under this Agreement
or any applicable law.
(1) Fines shall not be imposed in an amount in excess of seventy-five thousand dollars
($75,000) for the Grantors collectively within any twelve (12) month consecutive
period.
(J) The determination as to whether a violation of this Agreement has occurred shall
be within the sole discretion of the Grantor or its designee, provided that any such
final determination shall be subject to review by a court of competent jurisdiction
under applicable law.
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15.2 Fines
(A) Failure to comply with provisions of this Agreement may result in injury to Grantor.
Grantor and Grantee recognize it will be difficult to accurately estimate the extent
of such injury. Therefore, the financial penalty provisions of this Agreement are
intended as a reasonable forecast of compensation to the Grantors collectively for
the harm caused by violation of this Agreement, including but not limited to
administrative expense, legal fees, publication of notices, and holding of a hearing
or hearings as provided herein.
(1) For violating aggregate performance telephone answering standards for a
Quarterly measurement period:
(a) $10,000 for the first such violation;
(b) $20,000 for the second such violation, unless the violation has been
cured;
(c) $30,000 for any and all subsequent violations, unless the violation
has been cured;
A cure is defined as meeting the Subscriber telephone answering
standards for two (2) consecutive Quarterly measurement periods;
(2) For violation of applicable Subscriber service standards where violations
are not measured in terms of aggregate performance standards: $250 per
violation, per day;
(3) For all other violations of this Agreement, except as otherwise provided
herein, (for example, but not limited to, Record submissions under Section
7): $250/day for each violation for each day the violation continues.
(B) The fines set forth in Section 15.2(A) may be reduced at the sole discretion of the
Grantor, taking into consideration the nature, circumstances, extent and gravity of
violation as reflected by one or more of the following factors:
(a) whether the violation was unintentional;
(b) the nature of the harm which resulted;
(c) whether there is a history of prior violations of the same or other
requirements;
(d) whether there is a history of overall compliance, and/or;
(e) whether the violation was voluntarily disclosed, admitted or cured.
(C) Collection of Fines. The collection of fines by the Grantor shall in no respect affect:
(1) Compensation owed to Subscribers; or
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(2) The Grantee's obligation to comply with all of the provisions of this
Agreement or applicable law; or
(3) Other remedies available to the Grantors provided, however, that collection
of fines shall be the exclusive remedy for the Grantors for the particular
incident or for the particular time period for which it is imposed other than
reasonable attorney fees and costs, if applicable. If the violation continues
beyond the particular time period, Grantor shall have the right to pursue
other remedies under this Agreement.
15.3 Revocation
(A) Should Grantor seek to revoke the Franchise after following the procedures set
forth in Section 15.1, Grantor shall give written notice to Grantee of its intent. The
notice shall set forth the exact nature of the noncompliance. Grantee shall have
ninety (90) days from such notice to object in writing and to state its reasons for
such objection. In the event Grantor has not received a satisfactory response from
Grantee, it may then seek termination of the Franchise at a public hearing. Grantor
shall cause to be served upon Grantee, at least thirty(30)days prior to such public
hearing, a written notice specifying the time and place of such hearing and stating
its intent to revoke the Franchise.
(B) At the designated hearing, Grantee shall be provided a fair opportunity for full
participation, including the right to be represented by legal counsel, to introduce
relevant evidence, to require the production of evidence, to compel the relevant
testimony of the officials, agents, employees or consultants of Grantor, to compel
the testimony of other persons as permitted by law, and to question and/or cross
examine witnesses. A complete verbatim record and transcript shall be made of
such hearing.
(C) Following the public hearing, Grantee shall be provided up to thirty (30) days to
submit its proposed findings and conclusions in writing and thereafter Grantor shall
determine (i) whether an event of default has occurred; (ii) whether such event of
default is excusable; and (iii)whether such event of default has been cured or will
be cured by Grantee. Grantor shall also determine whether to revoke the
Franchise based on the information presented, or, where applicable, grant
additional time to Grantee to effect any cure. If Grantor determines that the
Franchise shall be revoked, Grantor shall promptly provide Grantee with a written
decision setting forth its reasoning. Grantee may appeal such determination of
Grantor to an appropriate court, which shall have the power to review the decision
of Grantor. Grantee shall be entitled to such relief as the court finds appropriate.
Such appeal must be taken within sixty (60) days of Grantee's receipt of the
determination of the Grantor.
(D) Grantor may, at its sole discretion, take any lawful action which it deems
appropriate to enforce Grantor's rights under the Agreement in lieu of revocation of
the Franchise.
15.4 Relationship of Remedies
(A) Remedies are Non-exclusive. The remedies provided for in this Agreement are
cumulative and not exclusive; the exercise of one remedy shall not prevent the
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exercise of another remedy, or the exercise of any rights of the Grantor at law or
equity, provided that the cumulative remedies may not be disproportionate to the
magnitude and severity for the breach for which they are imposed except as
otherwise provided in Section 15.2. By way of example and not limitation, the
collection of fines by Grantor shall in no respect affect:
(1) Refunds or credits owed to Subscribers; or
(2) Grantee's obligation to comply with the provisions of this Agreement or
applicable law.
(B) No Election of Remedies. Without limitation, the withdrawal of amounts from the
Grantee's performance bond, or the recovery of amounts under the insurance,
indemnity or penalty provisions of this Agreement shall not be construed as any of
the following: an election of remedies; a limit on the liability of Grantee under the
Agreement for fines or otherwise, except as provided in Section 15.2; or an excuse
of faithful performance by Grantee.
15.5 Removal
(A) In the event of termination, expiration or revocation of this Agreement, Grantor
may order the removal of the above-ground Cable System facilities and such
underground facilities as required by Grantor in order to achieve reasonable
engineering or Public Rights of Way use purposes, from the Franchise Area at
Grantee's sole expense within a reasonable period of time as determined by
Grantor. In removing its plant, structures and equipment, Grantee shall refill, at its
own expense, any excavation that is made by it and shall leave all Public Rights of
Way, public places and private property in as good a condition as that prevailing
prior to Grantee's removal of its equipment.
(B) If Grantee fails to complete any required removal to the satisfaction of Grantor,
Grantor may cause the work to be done and Grantee shall reimburse Grantor for
the reasonable costs incurred within thirty(30) days after receipt of an itemized list
of the costs and Grantor may recover the costs through the Performance Bond
provided by Grantee.
15.6 Receivership and Foreclosure Grantor and Grantee acknowledge that the following
paragraphs may not be applicable or are subject to the jurisdiction of the bankruptcy court.
(A) At the option of Grantor, subject to applicable law, this Agreement may be revoked
one-hundred twenty (120) days after the appointment of a receiver or trustee to
take over and conduct the business of Grantee whether in a receivership,
reorganization, bankruptcy or other action or proceeding unless:
(1) The receivership or trusteeship is vacated within one hundred twenty(120)
days of appointment, or;
(2) The receiver(s) or trustee(s) have, within one hundred twenty (120) days
after their election or appointment, fully complied with all the terms and
provisions of this Agreement and have remedied all violations under the
Agreement. Additionally, the receiver(s) or trustee(s) shall have executed
an agreement duly approved by the court having jurisdiction, by which the
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receiver(s) or trustee(s) assume and agree to be bound by each and every
term and provision of this Agreement.
(B) If there is a foreclosure or other involuntary sale of the whole or any part of the
plant, property and equipment of Grantee, Grantor may serve notice of revocation
on Grantee and to the purchaser at the sale, and the rights and privileges of
Grantee under this Agreement shall be revoked thirty (30) days after service of
such notice, unless:
(1) Grantor has approved the transfer of this Agreement, in accordance with
the procedures set forth in this Agreement and as provided by law; and
(2) The purchaser has agreed with Grantor to assume and be bound by all of
the terms and conditions of this Agreement.
15.7 No Recourse Against Grantor
Grantee shall not have any monetary recourse against Grantor or its officials, boards,
commissions, agents or employees for any loss, costs, expenses or damages arising out of any
provision or requirement of this Agreement or the enforcement thereof, in accordance with the
provisions of applicable federal, state and local law. The rights of the Grantor under this
Agreement are in addition to, and shall not be read to limit, any rights or immunities the Grantor
may enjoy under federal, state or local law. However, under federal law, Grantee does have the
right to seek injunctive and declaratory relief.
15.8 Nonenforcement By Grantor
Grantee is not relieved of its obligation to comply with any of the provisions of this Agreement by
reason of any failure of Grantor to enforce prompt compliance. Grantor's forbearance or failure to
enforce any provision of this Agreement shall not serve as a basis to stop any subsequent
enforcement. The failure of the Grantor on one or more occasions to exercise a right or to require
compliance or performance under this Agreement or any applicable law shall not be deemed to
constitute a waiver of such right or a waiver of compliance or performance, unless such right has
been specifically waived in writing. Any waiver of a violation is not a waiver of any other violation,
whether similar or different from that waived.
SECTION 16. ABANDONMENT
16.1 Effect of Abandonment
If the Grantee abandons its System during the Franchise term, or fails to operate its Cable System
in accordance with its duty to provide continuous service, the Grantor, at its option, may operate
the Cable System; designate another entity to operate the Cable System temporarily until the
Grantee restores service under conditions acceptable to the Grantor or until this Agreement is
revoked and a new grantee is selected by the Grantor; or obtain an injunction requiring the
Grantee to continue operations. If the Grantor is required to operate or designate another entity to
operate the Cable System, the Grantee shall reimburse the Grantor or its designee for all
reasonable costs, expenses and damages incurred.
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16.2 What Constitutes Abandonment
(A) The Grantor shall be entitled to exercise its options and obtain any required
injunctive relief if:
(1) The Grantee fails to provide Cable Service in accordance with this
Agreement to the Franchise Area for ninety-six (96) consecutive hours,
unless the Grantor authorizes a longer interruption of service, except if
such failure to provide service is due to a force majeure occurrence, as
described in Section 4.7; or
(2) The Grantee, for any period, willfully and without cause refuses to provide
Cable Service in accordance with this Agreement.
SECTION 17. FRANCHISE RENEWAL AND TRANSFER
17.1 Renewal
(A) The Grantor and Grantee agree that any proceedings undertaken by the Grantor
that relate to the renewal of Grantee's Agreement shall be governed by and
comply with the provisions of the Cable Act(47 USC§546), unless the procedures
and substantive protections set forth therein shall be deemed to be preempted and
superseded by the provisions of any subsequent provision of federal or state law.
(B) In addition to the procedures set forth in the Cable Act, the Grantor agrees to notify
Grantee of the completion of its assessments regarding the identification of future
cable-related community needs and interests, as well as the past performance of
Grantee under the then current Franchise term. Notwithstanding anything to the
contrary set forth herein, Grantee and Grantor agree that at any time during the
term of the then current Agreement, while affording the public adequate notice and
opportunity for comment, the Grantor and Grantee may agree to undertake and
finalize negotiations regarding renewal of the then current Agreement and the
Grantor may grant a renewal thereof. Grantee and Grantor consider the terms set
forth in this Section to be consistent with the express provisions of the Cable Act.
17.2 Transfer of Ownership or Control
(A) The Cable System and this Agreement shall not be sold, assigned, transferred,
leased, or disposed of, either in whole or in part, either by involuntary sale or by
voluntary sale, merger, consolidation, nor shall title thereto, either legal or
equitable, or any right, interest, or property therein pass to or vest in any Person or
entity, without the prior written consent of the Grantor, which consent shall not be
unreasonably withheld.
(B) The Grantee shall promptly notify the Grantor of any actual or proposed change in,
or transfer of, or acquisition by any other party of control of the Grantee. The word
"control" as used herein is not limited to majority stockholders but includes actual
working control in whatever manner exercised. A rebuttable presumption that a
transfer of control has occurred shall arise on the acquisition or accumulation by
any Person or group of Persons of ten percent (10%) of the shares or the general
partnership interest in the Grantee, except that this sentence shall not apply in the
case of a transfer to any Person or group already owning at least a ten percent
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(10%) interest of the shares or the general partnership interest in the Grantee.
Every change, transfer or acquisition of control of the Grantee shall make this
Agreement subject to revocation unless and until the Grantor shall have consented
thereto.
(C) The parties to the sale or transfer shall make a written request to the Grantor for its
approval of a sale or transfer and furnish all information required by law and the
Grantor.
(D) The Grantor shall render a final written decision on the request within one hundred
twenty (120) days of the request, provided it has received all requested
information. Subject to the foregoing, if the Grantor fails to render a final decision
on the request within one hundred twenty (120) days, such request shall be
deemed granted unless the requesting party and the Grantor agree to an
extension of time.
(E) Within thirty(30)days of any transfer or sale, if approved or deemed granted by the
Grantor, Grantee shall file with the Grantor a copy of the deed, agreement, lease or
other written instrument evidencing such sale or transfer of ownership or control,
certified and sworn to as correct by Grantee and the transferee.
(F) In reviewing a request for sale or transfer, the Grantor may inquire into the legal,
technical and financial qualifications of the prospective controlling party or
transferee, and Grantee shall assist the Grantor in so inquiring. The Grantor may
condition said sale or transfer upon such terms and conditions as it deems
reasonably appropriate, provided, however, any such terms and conditions so
attached shall be related to the legal, technical, and financial qualifications of the
prospective controlling party or transferee and to the resolution of outstanding and
unresolved issues of noncompliance with the terms and conditions of this
Agreement by Grantee.
(G) The consent or approval of the Grantor to any transfer by the Grantee shall not
constitute a waiver or release of any rights of the Grantor, and any transfer shall,
by its terms, be expressly subordinate to the terms and conditions of this
Agreement.
(H) Notwithstanding anything to the contrary in this Section, the prior approval of the
Grantor shall not be required for any sale, assignment or transfer of the Agreement
or Cable System for cable television system usage to an entity controlling,
controlled by or under the same common control as Grantee, provided that the
proposed assignee or transferee must show financial responsibility as may be
determined necessary by the Grantor and must agree in writing to comply with all
provisions of the Agreement. No consent shall be required for a transfer in trust, by
mortgage, by other hypothecation, by assignment of any rights, title, interest of
Grantee in the Franchise or Cable System in order to secure indebtedness.
SECTION 18. SEVERABILITY
If any Section, subsection, paragraph,term, or provision of this Agreement or any ordinance, law,
or document incorporated herein by reference is held by a court of competent jurisdiction to be
invalid, unconstitutional, or unenforceable, such holding shall be confined in its operation to the
Section, subsection, paragraph, term, or provision directly involved in the controversy in which
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such holding shall have been rendered, and shall not in any way affect the validity of any other
Section, subsection, paragraph, term, or provision hereof. Under such a circumstance the
Grantee shall, upon the Grantor's request, meet and confer with the Grantor to consider
amendments to this Agreement. The purpose of the amendments shall be to place the parties, as
nearly as possible, in the position that they were in prior to such determination, consistent with
applicable law. In the event the parties are unable to agree to a modification of this Agreement
within sixty (60) days, either party may (1) seek appropriate legal remedies to amend this
Agreement, or(2)shorten this Agreement to thirty-six(36) months, at which point either party may
invoke the renewal procedures under 47 U.S.C. § 546. Each party agrees to participate in up to
sixteen (16) hours of negotiation during the sixty (60) day period.
SECTION 19. MISCELLANEOUS PROVISIONS
19.1 Preferential or Discriminatory Practices Prohibited
Grantee shall not discriminate in hiring, employment or promotion on the basis of race, color,
creed, ethnic or national origin, religion, age, sex, sexual orientation, marital status, or physical or
mental disability. Throughout the term of this Agreement, Grantee shall fully comply with all equal
employment or nondiscrimination provisions and requirements of federal, state and local law and,
in particular, FCC rules and regulations relating thereto.
19.2 Dispute Resolution
(A) The Grantor and Grantee agree that should a dispute arise between the parties
concerning any aspect of this Agreement which is not resolved by mutual
agreement of the parties, and unless either party believes in good faith that
injunctive relief is warranted, the dispute will be submitted to mediated negotiation
prior to any party commencing litigation. In such event, the Grantor and Grantee
agree to participate in good faith in a non-binding mediation process. The
mediator shall be selected by mutual agreement of the parties. In the absence of
such mutual agreement, each party shall select a temporary mediator, and those
mediators shall jointly select a permanent mediator.
(B) If the parties are unable to successfully conclude the mediation within forty-five
(45)days from the date of the selection of the mediator, either party may terminate
further mediation by sending written notice to the other. After written notice has
been received by the other party, either party may pursue whatever legal remedies
exist. All costs associated with mediation shall be borne, equally and separately,
by the parties.
19.3 Notices
(A) Throughout the term of this Agreement, Grantee shall maintain and file with
Grantor a designated legal or local address for the service of notices by mail. A
copy of all notices from Grantor to Grantee shall be sent, postage prepaid, to such
address and such notices shall be effective upon the date of mailing. At the
Effective Date of this Agreement, such addresses shall be:
Comcast of Oregon, II, Inc.
Attn: Government Affairs
9605 SW Nimbus Ave
Beaverton, OR 97008
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with copy to:
Attn : West Division/Government Affairs
1581525 th Ave West
Lynnwood, WA 98087
(B) All notices to be sent by Grantee to Grantor under this Agreement shall be sent,
postage prepaid, and such notices shall be effective upon the date of mailing. At
the Effective Date of this Agreement, such address shall be:
Metropolitan Area Communications Commission
15201 NW Greenbrier Parkway, C-1
Beaverton, OR 97006
19.4 Binding Effect
This Agreement shall be binding upon the parties hereto, their permitted successors and assigns.
19.5 Authority to Amend
This Agreement may be amended at any time by written agreement between the parties.
19.6 Governing Law
This Agreement shall be governed in all respects by the laws of the State of Oregon.
19.7 Guarantee
The performance of the Grantee shall be guaranteed in all respects by TCI West, LLC. A signed
guarantee, in a form acceptable to the Grantor, shall be filed with the Grantor prior to the Effective
Date hereof.
19.8 Captions
The captions and headings of this Agreement are for convenience and reference purposes only
and shall not affect in any way the meaning or interpretation of any provisions of this Agreement.
19.9 Entire Agreement
This Agreement, together with all appendices and attachments, contains the entire agreement
between the parties, supersedes all prior agreements or proposals except as specifically set forth
herein, and cannot be changed orally but only by an instrument in writing executed by the parties.
19.10 Construction of Agreement
The provisions of this Agreement shall be liberally construed to promote the public interest.
Agreed to this day of `< , 2015
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2810911 v4
COMCAST OF OREGON li, iNC. METROPOLITAN AREA
COMMUNICATIONS COi#AMiSSM
MaWmCbumbem Administrator
VP-Fla noeandAomun tp
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Attachment A
CUSTOMER SERVICE
These standards shall apply to Grantee to the extent it is providing Cable Services over the Cable
System in the Franchise Area. This Attachment A sets forth the minimum customer service
standards that the Grantee must satisfy.
1. Definitions
(A) Normal Business Hours mean those hours during which most similar businesses in
the Franchise Area are open to serve customers. In all cases, "Normal Business
Hours" must include some evening hours at least one night per week and/or some
weekend hours.
(B) Normal Operating Conditions: Those service conditions that are within the control
of the Grantee, as defined under 47 C.F.R. § 76.309(c)(4)(ii). 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,
and severe or unusual weather conditions. Those conditions which are ordinarily
within the control of the Grantee include, but are not limited to, special promotions,
pay-per-view events, rate increases, regular peak or seasonal demand periods,
and maintenance or upgrade of the Cable System.
(C) Respond:The start of Grantee's investigation of a Service Interruption by receiving
a Subscriber call, and opening a trouble ticket, and begin working, if required.
(D) Service Call: The action taken by Grantee to correct a Service Interruption the
effect of which is limited to an individual Subscriber.
(E) Service Interruption. The loss of picture or sound on one or more cable Channels.
(F) Significant Outage: A significant outage of the Cable Service shall mean any
Service Interruption lasting at least four (4) continuous hours that affects at least
ten percent (10%) of the Subscribers in the Service Area.
(G) Standard Installation: Installations where the Subscriber is within one hundred
twenty five (125) feet of trunk or feeder lines.
2. Telephone Availability
(A) Grantee shall maintain a toll-free number to receive all calls and inquiries from
Subscribers in the Franchise Area and/or residents regarding Cable Service.
Grantee representatives trained and qualified to answer questions related to Cable
Service in the Service Area must be available to receive reports of Service
Interruptions twenty-four(24) hours a day, seven (7) days a week, and such
representatives shall be available to receive all other inquiries at least forty-five
(45) hours per week including at least one night per week and/or some weekend
hours. Grantee representatives shall identify themselves by name when
answering this number.
(B) Grantee's telephone numbers shall be listed, with appropriate description (e.g.
administration, customer service, billing, repair, etc.), in the directory published by
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the local telephone company or companies serving the Service Area, beginning
with the next publication cycle after acceptance of this Agreement by Grantee.
(C) Grantee may use an Automated Response Unit ("ARU") or a Voice Response Unit
("VRU")to distribute calls. If a foreign language routing option is provided, and the
Subscriber does not enter an option, the menu will default to the first tier menu of
English options.
After the first tier menu (not including a foreign language rollout) has run through
three times, if Subscribers do not select any option, the ARU or VRU will forward
the call to a queue for a live representative. Grantee may reasonably substitute
this requirement with another method of handling calls from Subscribers who do
not have touch-tone telephones.
(D) Under Normal Operating Conditions, calls received by the Grantee shall be
answered within thirty (30) seconds during Normal Business Hours. The Grantee
shall meet this standard for ninety percent(90%) of the calls it receives at call
centers receiving calls from Franchise Area Subscribers, as measured on a
cumulative Quarterly calendar basis. Measurement of this standard shall include
all calls received by the Grantee at all call centers receiving calls from Subscribers,
whether they are answered by a live representative, by an automated attendant, or
abandoned after thirty (30) seconds of call waiting. If the call needs to be
transferred, transfer time shall not exceed thirty (30) seconds.
J
(E) Under Normal Operating Conditions, callers to the Grantee shall receive a busy
signal no more than three (3%) percent of the time during any calendar Quarter.
(F) Forty-five (45) days following the end of each Quarter, the Grantee shall report to
Grantor,the following for all call centers receiving calls from Subscribers except for
temporary telephone numbers set up for national promotions:
(9) Percentage of calls answered within thirty (30) seconds as set forth in
subsection 2( D) of this Attachment A; and
(2) Percentage of time Subscribers received a busy signal when calling the
Grantee's service center as set forth in Section 2( E) of this Attachment A.
(G) At the Grantee's option, the measurements and reporting above may be changed
from calendar quarters to billing or accounting quarters one time during the term of
this Agreement. Grantee shall notify Grantor of such a change not less than thirty
(30) days in advance.
3. Installations and Service Appointments
(A) All installations will be in accordance with FCC rules, including but not limited to,
appropriate grounding/bonding, connection of equipment to ensure reception of
Cable Service, and the provision of required consumer information and literature to
adequately inform the Subscriber in the utilization of Grantee-supplied equipment
and Cable Service.
(B) The Standard Installation shall be performed within seven (7) business days of
Subscriber request. Grantee shall meet this standard for ninety-five percent(95%)
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of the Standard Installations it performs, as measured on a calendar quarter basis,
excluding those requested by the Subscriber outside of the seven (7) day period.
(C) Grantee shall provide Grantor with a report forty-five (45) days following the end of
the Quarter, noting the percentage of Standard Installations completed within the
seven (7) day period, excluding those requested outside of the seven (7) day
period by the Subscriber. Subject to consumer privacy requirements, underlying
activity will be made available to Grantor for review upon reasonable request.
(D) At Grantee's option,the measurements and reporting above may be changed from
calendar quarters to billing or accounting quarters one time during the term of this
Agreement. Grantee shall notify Grantor of such a change not less than thirty (30)
days in advance.
(E) Grantee will offer Subscribers "appointment window" alternatives for arrival to
perform installations, Service Calls and other activities of a maximum four (4)
hours scheduled time block during appropriate daylight available hours, usually
beginning at 8:00 AM unless it is deemed appropriate to begin earlier by location
exception. At Grantee's discretion, Grantee may offer Subscribers appointment
arrival times other than these four (4) hour time blocks, if agreeable to the
Subscriber.
(1) Grantee may not cancel an appointment window with a customer after the
close of business on the business day prior to the scheduled appointment.
(2) If Grantee's representative is running late for an appointment with a
Subscriber and will not be able to keep the appointment as scheduled, the
Subscriber will be contacted. The appointment will be rescheduled, as
necessary, at a time which is convenient for the Subscriber.
(F) Grantee must provide for the pick up or drop off of equipment free of charge in one
of the following manners: (i) by having a Grantee representative go to the
Subscriber's residence, (ii) by using a mailer, or (iii) by establishing a local
business office within the Franchise Area. If requested by a mobility-limited
Subscriber,the Grantee shall arrange for pickup and/or replacement of converters
or other Grantee equipment at Subscriber's address or by a satisfactory
equivalent.
4. Service Interruptions and Outages
(A) Grantee shall promptly notify Grantor of any Significant Outage of the Cable
Service.
(B) Grantee shall exercise commercially reasonable efforts to limit any Significant
Outage for the purpose of maintaining, repairing, or constructing the Cable
System. Except in an emergency or other situation necessitating a more expedited
or alternative notification procedure, Grantee may schedule a Significant Outage
for a period of more than four (4) hours during any twenty-four (24) hour period
only after Grantor and each affected Subscriber in the Service Area have been
given fifteen (15) days prior notice of the proposed Significant Outage.
Notwithstanding the foregoing, Grantee may perform modifications, repairs and
upgrades to the System between 12:01 a.m. and 6 a.m., which may interrupt
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service, and this Section's notice obligations respecting such possible
interruptions will be satisfied by notice provided to Subscribers upon installation
and in the annual Subscriber notice.
(C) Grantee representatives who are capable of responding to Service Interruptions
must be available to Respond twenty-four(24) hours a day, seven (7) days a week.
(D) Under Normal Operating Conditions, Grantee must Respond to a call from a
Subscriber regarding a Service Interruption or other service problems within the
following time frames:
(1) Within twenty-four(24) hours, including weekends, of receiving Subscriber
calls about Service Interruptions in the Service Area.
(2) Grantee must begin actions to correct all other Cable Service problems the
next business day after notification by the Subscriber or Grantor of a Cable
Service problem.
(E) Under Normal Operating Conditions, Grantee shall complete Service Calls within
seventy-two (72) hours of the time Grantee commences to Respond to the Service
Interruption, not including weekends and situations where the Subscriber is not
reasonably available fora Service Call to correct the Service Interruption within the
seventy-two (72) hour period.
(F) Grantee shall meet the standard in Section 4(E) of this Attachment A for ninety
percent (90%)of the Service Calls it completes, as measured on a Quarterly basis.
(G) Grantee shall provide Grantor with a report within forty-five (45) days following the
end of each calendar quarter, noting the percentage of Service Calls completed
within the seventy-two (72) hour period, not including Service Calls where the
Subscriber was reasonably unavailable for a Service Call within the seventy-two
(72) hour period as set forth in this Section 4.G. Subject to consumer privacy
requirements, underlying activity will be made available to Grantor for review upon
reasonable request. At the Grantee's option, the above measurements and
reporting may be changed from calendar quarters to billing or accounting quarters
one time during the term of this Agreement. The Grantee shall notify the Grantor of
such a change at least thirty (30) days in advance.
(H) At Grantee's option, the above measurements may be changed for calendar
quarters to billing or accounting quarters one time during the term of this
Agreement. Grantee shall notify Grantor of such a change at least thirty (30) days
in advance.
(1) Under Normal Operating Conditions, Grantee shall provide a credit upon
Subscriber request when all Channels received by that Subscriber experience the
loss of picture or sound for a period of four(4) consecutive hours or more. The
credit shall equal, at a minimum, a proportionate amount of the affected
Subscriber(s) current monthly bill. In order to qualify for the credit, the Subscriber
must promptly report the problem and allow Grantee to verify the problem if
requested by Grantee. If Subscriber availability is required for repair, a credit will
not be provided for such time, if any, that the Subscriber is not reasonably
available.
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(J) Under Normal Operating Conditions, if a Significant Outage affects all Video
Programming Cable Services for more than twenty-four(24) consecutive hours,
Grantee shall issue a credit upon request to the affected Subscribers in the
amount equal to their monthly recurring charges for the proportionate time the
Cable Service was out, or a credit upon request to the affected Subscribers in the
amount equal to the charge for the basic plus enhanced basic level of service for
the proportionate time the Cable Service was out, whichever is technically feasible
or, if both are technically feasible, as determined by Grantee, provided such
determination is non-discriminatory. Such credit shall be reflected on Subscriber
billing statements within the next available billing cycle following the outage.
5. Subscriber Complaints Referred by Grantor
Under Normal Operating Conditions, Grantee shall begin investigating Subscriber complaints
referred by Grantor within twenty-four(24) hours. Grantee shall notify Grantor of those matters
that require more than seventy-two (72) hours to resolve, but Grantee must make all necessary
efforts to resolve those complaints within ten (10) business days of the initial complaint. Grantor
may require Grantee to provide reasonable documentation to substantiate the request for
additional time to resolve the problem. Grantee shall inform Grantor in writing, which may be by
an electronic mail message, of how and when referred complaints have been resolved within a
reasonable time after resolution. For purposes of this Section 5 of this Attachment A, "resolve"
means that Grantee shall perform those actions, which, in the normal course of business, are
necessary to investigate the Subscriber's complaint and advise the Subscriber of the results of
that investigation.
6. Billing
(A) Subscriber bills must be itemized to describe Cable Services purchased by
Subscribers and related equipment charges. Bills shall clearly delineate activity
during the billing period, including optional charges, rebates, credits, and
aggregate late charges. Grantee shall without limitation as to additional line items,
be allowed to itemize as separate line items, Franchise fees, taxes, PEG capital
fees, and/or other governmental-imposed fees. Grantee shall maintain records of
the date and place of mailing of bills.
(B) Every Subscriber with a current account balance sending payment directly to
Grantee shall be given at least twenty (20) days from the date statements are
mailed to the Subscriber until the payment due date.
(C) A specific due date shall be listed on the bill of every Subscriber whose account is
current. Delinquent accounts may receive a bill which lists the due date as upon
receipt; however, the current portion of that bill shall not be considered past due
except in accordance with Section 6(B) of this Attachment A.
(D) Any Subscriber who, in good faith, disputes all or part of any bill shall have the
option of withholding the disputed amount without disconnect or late fee being
assessed until the dispute is resolved, provided that:
(1) The Subscriber pays all undisputed charges;
(2) The Subscriber provides notification of the dispute to Grantee within five(5)
days prior to the due date; and
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(3) The Subscriber cooperates in determining the accuracy and/or
appropriateness of the charges in dispute.
(4) It shall be within Grantee's sole discretion to determine when the dispute
has been resolved.
(E) Under Normal Operating Conditions, Grantee shall initiate investigation and
resolution of all billing complaints received from Subscribers within five (5)
business days of receipt of the complaint. Final resolution shall not be
unreasonably delayed.
(F) Grantee shall provide a telephone number and address clearly and prominently on
the bill for Subscribers to contact Grantee.
(G) Grantee shall forward a copy of any rate-related or customer service-related billing
inserts or other mailings related to Cable Service, but not promotional materials,
sent to Subscribers, to Grantor.
(H) Grantee shall provide all Subscribers with the option of paying for Cable Service by
check or an automatic payment option where the amount of the bill is automatically
deducted from a checking account designated by the Subscriber. Grantee may in
the future, at its discretion, permit payment by using a major credit card on a
preauthorized basis. Based on credit history, at the option of Grantee, the
payment alternative maybe limited.
7. Deposits, Refunds and Credits
(A) Grantee may require refundable deposits from Subscribers 1)with a poor credit or
poor payment history, 2) who refuse to provide credit history information to
Grantee, or 3) who rent Subscriber equipment from Grantee, so long as such
deposits are applied on a non-discriminatory basis. The deposit Grantee may
charge Subscribers with poor credit or poor payment history or who refuse to
provide credit information may not exceed an amount equal to an average
Subscriber's monthly charge multiplied by six (6). The maximum deposit Grantee
may charge for Subscriber equipment is the cost of the equipment which Grantee
would need to purchase to replace the equipment rented to the Subscriber.
(B) Grantee shall refund or credit the Subscriber for the amount of the deposit
collected for equipment, which is unrelated to poor credit or poor payment history,
after one (1) year and provided the Subscriber has demonstrated good payment
history during this period. Grantee shall pay interest on other deposits if required
by law.
(C) Under Normal Operating Conditions, refund checks will be issued within the next
available billing cycle following the resolution of the event giving rise to the refund,
(e.g. equipment return and final bill payment).
(D) Credits for Cable Service will be issued no later than the Subscriber's next
available billing cycle, following the determination that a credit is warranted, and
the credit is approved and processed. Such approval and processing shall not be
unreasonably delayed.
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(E) Bills shall be considered paid when appropriate payment is received by Grantee or
its authorized agent. Appropriate time considerations shall be included in
Grantee's collection procedures to assure that payments due have been received
before late notices or termination notices are sent.
8. Rates, Fees and Charges
(A) Grantee shall not, except to the extent expressly permitted by law, impose any fee
or charge for Service Calls to a Subscriber's premises to perform any repair or
maintenance work related to Grantee equipment necessary to receive Cable
Service, except where such problem is caused by a negligent or wrongful act of the
Subscriber(including, but not limited to a situation in which the Subscriber
reconnects Grantee equipment incorrectly) or by the failure of the Subscriber to
take reasonable precautions to protect Grantee's equipment (for example, a dog
chew).
(B) Grantee shall provide reasonable notice to Subscribers of the possible
assessment of a late fee on bills or by separate notice. Such late fees are subject
to ORS 646.649.
(C) All of Grantee's rates and charges shall comply with applicable law. Grantee shall
maintain a complete current schedule of rates and charges for Cable Services on
file with the Grantor throughout the term of this Agreement.
9. Disconnection/Denial of Service
(A) Grantee shall not terminate Cable Service for nonpayment of a delinquent account
unless Grantee mails a notice of the delinquency and impending termination prior
to the proposed final termination. The notice shall be mailed to the Subscriber to
whom the Cable Service is billed. The notice of delinquency and impending
termination may be part of a billing statement.
(B) Cable Service terminated in error must be restored without charge within
twenty-four(24) hours of notice. If a Subscriber was billed for the period during
which Cable Service was terminated in error, a credit shall be issued to the
Subscriber if the Cable Service Interruption was reported by the Subscriber.
(C) Nothing in these standards shall limit the right of Grantee to deny Cable Service for
non.payment of previously provided Cable Services, refusal to pay any required
deposit, theft of Cable Service, damage to Grantee's equipment, abusive and/or
threatening behavior toward Grantee's employees or representatives, or refusal to
provide credit history information or refusal to allow Grantee to validate the identity,
credit history and credit worthiness via an external credit agency.
(D) Charges for Cable Service will be discontinued at the time of the requested
termination of service by the Subscriber, except equipment charges may be
applied until equipment has been returned. No period of notice prior to requested
termination of service can be required of Subscribers by Grantee. No charge shall
be imposed upon the Subscriber for or related to total disconnection of Cable
Service or for any Cable Service delivered after the effective date of the disconnect
request, unless there is a delay in returning Grantee equipment or early
termination charges apply pursuant to the Subscriber's service contract. If the
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Subscriber fails to specify an effective date for disconnection, the Subscriber shall
not be responsible for Cable Services received after the day following the date the
disconnect request is received by Grantee. For purposes of this subsection 9( D)
of this Attachment A, the term "disconnect" shall include Subscribers who elect to
cease receiving Cable Service from Grantee and to receive Cable Service or other
multi-channel video service from another Person or entity.
10. Communications with Subscribers
(A) All Grantee personnel, contractors and subcontractors contacting Subscribers or
potential Subscribers outside the office of Grantee shall wear a clearly visible
identification card bearing their name and photograph. Grantee shall make
reasonable efforts to account for all identification cards at all times. In addition, all
Grantee representatives shall wear appropriate clothing while working at a
Subscriber's premises. Every service vehicle of Grantee and its contractors or
subcontractors shall be clearly identified as such to the public. Specifically,
Grantee vehicles shall have Grantee's logo plainly visible. The vehicles of those
contractors and subcontractors working for Grantee shall have the contractor's /
subcontractor's name plus markings (such as a magnetic door sign) indicating
they are under contract to Grantee.
(B) All contact with a Subscriber or potential Subscriber by a Person representing
Grantee shall be conducted in a courteous manner.
(C) Grantee shall send annual notices to all Subscribers informing them that any
complaints or inquiries not satisfactorily handled by Grantee may be referred to
Grantor. A copy of the annual notice required under this subsection 6.10( C) of this
Attachment A will be given to Grantor at least fifteen (15) days prior to distribution
to Subscribers.
(D) Grantee shall provide the name, mailing address, and phone number of Grantor on
all Cable Service bills in accordance with 47 C.F.R. §76.952(a).
(E) All notices identified in this Section 10 shall be by either:
(1) A separate document included with a billing statement or included on the
portion of the monthly bill that is to be retained by the Subscriber; or
(2) A separate electronic notification.
(F) Grantee shall provide reasonable notice to Subscribers and Grantor of any pricing
changes or additional changes (excluding sales discounts, new products or offers)
and, subject to the forgoing, any changes in Cable Services, including Channel
line-ups. Such notice must be given to Subscribers a minimum of thirty (30) days
in advance of such changes if within the control of Grantee. If the change is not
within Grantee's control, Grantee shall provide an explanation to Grantor of the
reason and expected length of delay. Grantee shall provide a copy of the notice to
Grantor including how and where the notice was given to Subscribers.
(G) Grantee shall provide information to all Subscribers about each of the following
items at the time of installation of Cable Services, annually to all Subscribers, at
any time upon request, and, subject to Section 10(E), at least thirty(30) days prior
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to making significant changes in the information required by this Section if within
the control of Grantee:
(1) Products and Cable Service offered;
(2) Prices and options for Cable Services and condition of subscription to
Cable Services. Prices shall include those for Cable Service options,
equipment rentals, program guides, installation, downgrades, late fees and
other fees charged by Grantee related to Cable Service;
(3) Installation and maintenance policies including, when applicable,
information regarding the Subscriber's in-home wiring rights during the
period Cable Service is being provided;
(4) Channel positions of Cable Services offered on the Cable System;
(5) Complaint procedures, including the name, address, and telephone
number of Grantor, but with a notice advising the Subscriber to initially
contact Grantee about all complaints and questions;
(6) Procedures for requesting Cable Service credit;
(7) The availability of a parental control device;
(8) Grantee practices and procedures for protecting against invasion of
privacy; and
(9) The address and telephone number of Grantee's office to which complaints
may be reported.
A copy of notices required in this Section 10(G)will be given to Grantor at least
fifteen (15)days prior to distribution to Subscribers if the reason for notice is due to
a change that is within the control of Grantee and as soon as possible if not with
the control of Grantee.
(H) Notices of changes in rates shall indicate the Cable Service new rates and old
rates, if applicable.
(1) Notices of changes of Cable Services and/or Channel locations shall include a
description of the new Cable Service, the specific Channel location, and the hours
of operation of the Cable Service if the Cable Service is only offered on a part-time
basis. In addition, should the Channel location, hours of operation, or existence of
other Cable Services be affected by the introduction of a new Cable Service, such
information must be included in the notice.
(J) Every notice of termination of Cable Service shall include the following information:
(1) The name and address of the Subscriber whose account is delinquent;
(2) The amount of the delinquency for all services billed;
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(3) The date by which payment is required in order to avoid termination of
Cable Service; and
(4) The telephone number for Grantee where the Subscriber can receive
additional information about their account and discuss the pending
termination.
(K) Grantee will comply with privacy rights of Subscribers in accordance with federal,
state, and local law, including 47 U.S.C. §551.
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Attachment B
COMMISSION FRANCHISE STATISTICS-QUARTERLY REPORT
Due By: April 15,July 15, October 15 and January 15
To: From:
TELEPHONE ANSWERING ACTIVITY 15 Qtr Total 2" Qtr Total 3 Qtr Total ---4'K-Qtr Total
TOTAL CALLS ANS'D W/IN 30 SECS.
AVERAGE HOLD TIME(measured in
seconds)
%ANS W/IN 30 SECS.
%ABANDONED
% LINES AVAILABLE
SUBSCRIBERS
TOTAL SUBSCRIBERS
EBU REPORTING#
HOMES PASSED
DIGITAL(including EBUs)
TOTAL TRAD. PAYS
(HBO,Showtime,The Movie Channel,Cinemax)
TOTAL DISCO's
TECH DISCO's
NON-PAY DISCO's
CONSTRUCTION ACTIVITY
NEW HOMES PASSED
MARKETABLE PASSINGS
TECHNICAL ACTIVITY
SERVICE CALLS
OUTAGES
TOTAL TIME OUT FOR OUTAGES
AVERAGE DURATION OF OUTAGES
Equivalent Billing Unit: Commercial and bulk account revenues that may be adjusted below or above the standard(basic expanded)cable rate are
either counted as greater than a full subscriber or less than a full subscriber by dividing the actual revenues for bulk and commercial accounts by the
standard cable rate. Example: If an apartment unit Is being charged 50%off the standard rate and there are 500 customers,the EBU number is 250.
Confidential and Proprietary-Comcast
Information is confidential under Oregon Public Records Law as it is a compilation of information which is not patented,which is known only to certain
individuals within the company and is used in the business it conducts,having actuar or potential commercial value,and which gives its user an
opportunity to obtain a business advantage overcompetitors who do not know or use it
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COMPLAINT SUMMARY
20 -Q COMMISSION TOTALS
Indicator Cltv Create Date Details Customer Name Customer Address Sery Addr Postal Cd Total
GRAND TOTAL
All Information is property of Comcast Cable and deemed confidential and proprietary.
Complaints highlighted in yellow indicate non-video issues.
Comcast
TELEPHONE RESPONSE REPORT
Metropolitan Area Communications Commission(MACC)Quarterly Report
Q1 20
Calls handled Abandons Qty Handled<30 Service Level%
C)
m m
o a v
r z c a c G 3
E v t
•C N O o0 to
'O W
CL > `° > E cv c W v c @ c n
4 20_ - > m
2810911v4
B-2
Attachment C
EXISTING LIVE ORIGINATION SITES
Beaverton City Hall
12725 SW Millikan Way
Beaverton, OR 97005
Beaverton Police/Courts Headquarters
4755 SW Griffith Drive
Beaverton, OR 97.076
Washington County Public Services Bldg.
155 N. First Ave.
Hillsboro, OR 97123
Hillsboro Civic Center
150 E. Main St.
Hillsboro, OR 97123
Lake Oswego City Hall
380"A"Ave
Lake Oswego, OR 97034
Tigard City Hall
13125 SW Hall Blvd
Tigard, OR 97223
Forest Grove Auditorium
1915 Main St.
Forest Grove, OR 97116
Pacific University
2043 College Way
Forest Grove, OR 97116
West Linn City Hall
22500 Salamo Road
West Linn, OR 97068
West Linn-Wilsonville School District 3JT
22210 SW Stafford Road
Tualatin, OR 97062
C-1
28109110
Clackamas Community College
19600 Molalla Avenue
Oregon City, OR 97045
- Attachment C II
New Public Meeting Sites -
Cornelius City Hall
1310 N. Adair
Cornelius, OR 97113
PCC Rock Creek—Event Center
17705 NW Springville Rd.
Portland, OR 97229
Tualatin Hospital Auditorium
335 SE 8th Ave.
Hillsboro, OR 97123
Tualatin Valley Water District Board Room
1850 SW 170th Ave.
Beaverton, OR 97006
COH Brookwood Library Auditorium/Community Meeting Room
2850 Brookwood Parkway
Hillsboro, OR 97124
- New Community Event Sites -
COH Civic Center Courtyard
150 E. Main St.
Hillsboro, OR 97123
Attachment C III
Future Public Sites —
Beaverton Performing Arts Center
Tualatin Council Building
C-2
2810911A
Attachment D
MASTER SERVICE AGREEMENT AND ATTACHMENTS
D-1
2810911x4
Attachment D(1)
ENTERPRISECOMCAST SERVICES
MASTER SERVICES , r '
MSA ID#: OR-401816-ETorg MSA Term:60 months I Account Name:MACC
CUSTOMER •- i •
Primary Contact: Bruce Crest Primary Contact Address Information
Title: Address 1:
Phone: (503)645-7365 Address 2:
Cell: City:
Fax: State:
Email: bruce.crest@maccor.org Zip Code:
This Master Service Agreement("Agreement")sets forth the terms and conditions under which Comcast Cable Communications
Management,LLC and its operating affiliates("Comcast")will provide communications and other services("Services")to the
above Customer.The Agreement consists of this fully executed Master Service Agreement Cover Page("Cover Page"),the
Enterprise Services General Terms and Conditions("General Terms and Conditions"), any written amendments to the
Agreement executed by both parties("Amendments"),the Product-Specific Attachment for the applicable Services("PSA(s)")
and each Sales Order accepted hereunder("Sales Orders"). In the event of any inconsistency among these documents,
precedence will be as follows:(1)this Cover Page(2)General Terms and Conditions,(3)PSA(s), ,and(4)Sales Orders. This
Agreement shall be legally binding when signed by both parties and shall continue in effect until the expiration date of any
Service Term specified in a Sales Order referencing the Agreement, unless terminated earlier in-accordance with the
Agreement. r
The Customer referenced above may submit Sales Orders to Comcast during the Term of this Agreement("MSA Term").After
the expiration of the initial MSA Term, Comcast may continue to accept Sales Orders from Customer under the Agreement,or
require the parties to execute a new MSA.
The Agreement shall terminate in accordance with the General Terms and Conditions.The General Terms and Conditions and
PSAs are located at http://business.comcast.com/enterprise-terms-of-service/index.aspx(or any successor URL).Use of the
Services is also subject to the High-Speed Internet for Business Acceptable Use Policy ("AUP") located at
http://business.comcast.com/customer-notifications/acceptable-use-policy(or any successor URL),and the High-Speed Internet
for Business Privacy Policy(Privacy Policy")located at http://business.comeast.com/customer-notifications/customer-privacy-
statement(or any successor URL).Comcast may update the General Terms and Conditions, PSAs,AUP and Privacy Policy
from time to time upon posting to the Comcast website. ,
Services are only available to commercial customers in wired and serviceable areas in participating Comcast systems(and may
not be transferred). Minimum Service Terms are required for most Services and early termination fees may apply.Service
Terms are identified in each Sales Orders, and early termination fees are identified in the applicable Product Specific
Attachments.
BY SIGNING BELOW, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
CUSTO . - -
Signature:
Name:
Title:
Date:
COMCAST USE ONLY(by authotized representative)
Signature: Sales Rep: Eric Torgeson
Name: Sales Rep Email: eric—torgeson@cable.comcast.com
Title: Region: Portland
Date: Division: West
Attachment D(II)
FIRST AMENDMENT
to
Comcast Enterprise Services Master Services Agreement No.OR-401816-ETorg
This First Amendment ("Amendment") is concurrently entered into on ("Effective Date") in
conjunction with the Comcast Enterprise Services Master Services Agreement No. OR-401816-etorg
("Agreemenf") by and between Comcast Cable Communications Management, LLC ("Comcast") and
("Customer"). In the event of an explicit conflict between this Amendment and the
Agreement, the terms and conditions of this Amendment shall take precedence in the interpretation of the
explicit matter in question.Unless otherwise set forth herein,all capitalized terms set forth herein shall have the
same meaning as set forth in the Agreement.
Whereas,the Parties desire to amend the Agreement by this writing to reflect the amended or additional terms
and conditions to which the Parties have agreed to;
Now, therefore, in consideration of the mutual covenants, promises, and consideration set forth in this
Amendment,the Parties agree as follows:
1. The Definition for "Confidential Information" as set forth in the Enterprise Services General Terms and
Conditions("General Terms and Conditions")is hereby modified,to read as follows:
"Confidential Information: To the extent permitted by law,all information regarding either Party's business
which has been marked or is otherwise communicated as being "proprietary" or "confidential" or which
reasonably should be known by the receiving party to be proprietary or confidential information,
Confidential Information shall not include, even if marked, the Agreement, rate information, discount
information, network operation information(about outages and planned maintenance)and invoices, as well
as the Parties' communications regarding such items."
2. Article 1 of the General Terms and Conditions is hereby modified to read as follows:
"Comcast may change or modify its acceptable use policies and privacy policies from time to time
("Revisions") by posting such Revisions to the Comcast Website.The Revisions are effective upon posting
to the Website. Customer will receive notice of the Revisions in the next applicable monthly invoice.
Customer shall have sixty(60)calendar days from the invoice notice of such Revisions to provide Comcast
with written notice that the Revisions adversely affect Customer's use of the Service(s). If after notice
Comcast is unable to reasonably mitigate the Revision's impact on such Services, then Customer may
terminate the impacted Service(s) without further obligation to Comcast beyond the termination date,
including Termination Charges,if any.This shall be Customer's sole and exclusive remedy."
3. Article 9.1 of the General Terms and Conditions is hereby modified to read as follows:
"Disclosure and Use. To the extent permitted by law, all Confidential Information disclosed by either Party
shall be kept by the receiving party vi strict confidence and shall not be disclosed to any third party without
the disclosing party's express written consent. Notwithstanding the foregoing, such information inay be
disclosed (i) to the receiving party's employees, affiliates, and agents who have a need to know for the
purpose of performing this Agreement, using the Services, rendering the Services, and marketing related
products and services(provided that in all cases the receiving party shall take appropriate measures prior to
disclosure to its employees,affiliates,and agents to assure against unauthorized use or disclosure); or(ii)as
otherwise authorized by this Agreement. Each Party agrees to treat all Confidential Information of the other
in the same manner as it treats its own proprietary information, but in no case using a degree of care less
than a reasonable degree of care. Notwithstanding anything to the contrary in this Agreement, all of
Customer's obligations under this Agreement: are subject to the Oregon Public Records Laws, ORS
192.410-192.505. Customer may disclose Confidential Information to the extent disclosure is required by
Oregon Public Records Laws, court order or government order."
1
Attachment D(Il)
4. Article 9.3 of the General Terms and Conditions is hereby modified to reads as follows:
"Publicity. The Agreement provides no right to use any Party's or its affiliates' trademarks, service marks,
or trade names, or to otherwise refer to the other Party in any marketing, promotional, or advertising
materials or activities. Neither Party shall issue any publication or press release relating to the terms and
conditions of any contractual relationship between Comcast and Customer, except as permitted by the
Agreement or otherwise consented to in writing by the other Party."
5. Article 11.15 is hereby added to the General Terms and Conditions to read as follows:
"Non-Appropriation of Funds. In the event Customer is unable to secure funds or if funds are not
appropriated by the applicable local or state agency for performance during any fiscal period of the term of a
Sales Order,such Sales Order may be terminated("Termination")by the Customer upon written notification
to Comcast,to include a copy of the non-appropriation of funds notification,as of the beginning of the fiscal
year for which funds are not appropriated or otherwise secured. In the event Customer terminates a Sales
Order under this"Non-Appropriation of Funds"provision,neither Party shall have any further obligation to
the other Party, including any applicable Termination Charges (whether in the PSA(s) or Sales Orders)
excepting Customer shall be responsible for the payment of any and all unpaid charges for Services
rendered and for Comcast equipment, and, any and all unpaid construction charges accounted for in the
applicable Sales Order,all of which are to be paid by Customer to Company within thirty(30)days from the
Company provided invoice date. Customer hereby agrees to notify Comcast in writing as soon as it has
knowledge that funds are not available for the continuation of the performance as set forth in the Sales
Order,for any fiscal period under the applicable Sales Order Term."
6. The "Service Level Agreement (SLA)" provision set forth in Schedule A-2 of the Comcast Enterprise
Services Product-Specific Attachment for Ethernet Transport Services ("ETS PSA") is hereby modified to
read as follows:
"Company's liability for any Service Interruption (individually or collectively, "Liability"), shall be limited
to the amounts set forth in the Tables below. For the purposes of calculating credit for any such Liability,
the Liability period begins when the Customer reports to Company an interruption in the portion of the
Service, provided that the Liability is reported by Customer during the duration of the Liability, and, a
trouble ticket is opened;the Liability shall be deemed resolved upon closing of the same trouble ticket or the
termination of the interruption, if sooner, less any time Company is awaiting additional information or
premises testing from the Customer. In no event shall the total amount of credit issued to Customer's
account on a per-month basis exceed 50% of the total monthly recurring charge ("MRC") associated with
the impacted portion of the Service set forth in the Sales Order. Service Interruptions will not be aggregated
for purposes of determining credit allowances.To qualify, Customer must request the Credit from Comcast
within thirty(30)days of the interruption.Customer will not be entitled to any additional credits for Service
Interruptions. Comcast shall not be liable for any Liability caused by force majeure events,Planned Service
Interruptions or Customer actions, omission or equipment. The foregoing notwithstanding, in accordance
with this SLA provision, upon Customer opening a trouble ticket, Comcast will provide credits for any
verifiable degradation in Services,(to include non-performance against transit delay,jitter,or packet loss)."
7. Paragraph 2b of the SLA is hereby modified to read as follows:
"b. Maintenancd. Comeast's standard maintenance window for On-Net Services is Sunday to Saturday from
12:00am to 6:00am local time. Scheduled maintenance for On-Net Services is performed during the
maintenance window and will be coordinated between Comcast and the Customer. Comcast provides a
minimum forty eight(48)hour notice for non-service impacting maintenance. Comcast provides a minimum
of seven (7) days' notice for On-Net Service impacting planned maintenance. Emergency maintenance is
performed as needed without advance notice to Customer. Maintenance for Off-Net Services shall be
performed in accordance with the applicable third party service provider rules. Therefore, Off-Net Service
may be performed without advance notice to Customer."
2
Attachment D(II)
8. The following provision is hereby added and incorporated into the ETS PSA to read as follows:
"Customer may elect to reduce the contracted bandwidth at up to 5% of the total Service Location(s), or,
terminate Services at up to three (3) total Service Location(s), whichever is greater, without incurring any
Termination Charges,penalties or price modifications."
9. The rates set forth in Exhibit A to this First Amendment shall apply to this Agreement.
IN 'WITNESS WHEREOF,the Parties hereto have executed this Amendment as of the day and year written
below and the persons signing covenant and warrant that they are duly authorized to sign for and on behalf of
the respective Parties. Except as otherwise modified by this Amendment, all other terms and conditions set
forth in the Agreement shall remain in full force and effect.
Comcast Cable Communications Mane emen LLC
Si ature: Signature:
Printed Name: Printed Name:
Title Title:
Date: Date:
2858224v2
3
Exhibit A to Attachment D(11)
_- ems e ' or ervicea'= o an 41f i
- 1 Year 3 Year 5 Year
Bandwidth Monthly Install Monthly Install Monthly Install
10Mb s $300.00 $1,500.00 $300.00 $0.00 $300.00 $0.00
100Mb s $621.60 $1,500.00 $480.00 $0.00 $360.00 $0.00
200Mb s $884.10 $1 500.00 $684.00 $0.00 $513.00 $0,00
300Mb s $957.95 1,500.001 $741.00 $0.00 $555.75 $0.00
400Mb s $1,027.951 $1,500.00 $795.00 $0.00 $596.25 $0.00
500Mb s
$1,101.801 $1,500.00 $852.00 $0.00 $639,00 $0,00
600Mb s $1,171.80 $1,600.00 $906.00 $0.00 $679.50 $0.00
700Mb s $1,245.65 $1,500.00 $963.00 $0.00 $722.25 $0.00
800Mb s $1,315.65 $1,500.00 $1,017.00 $0.00 $762.75 $0.00
900Mb s $1,389.85 1,500.001 $1,074.00 $0.00 $805.50 $0.00
1Gb s $1,459.85 $1,500.00 $1,128.00 $0.00 $846.00 $01.00
2Gb s 2,067.101 $1,500.00 $1,587.00 $0.00 $1,190.25 $0.00
3Gb s $2,374.051 $1,500.00 $1,824.00 $0.00 $1,368.00 $0.00
4Gb s $2,755.201 $1,500.00 $2,118.001 $0,00 $1,588.50 $0.00
5Gb s $3,021.901 $1,500.00 $2,331.00 $0.00 $1,748.25 $0.00
6Gb s $3,225.95 $1,500.00 $2,481.00 $0.00 $1,850.75 $0.00
7Gb s $3,749.20 $1,500.00 $2,892.00 $0.00 $2169.00 $0.00
8Gb s $4,647.30 $1,500.00 $3,585.00 $0.00 $2,693.75 $0.00
9Gb s $5 763.45 $1,500.00 $4,446.00 $0.00 $3,334.50 $0.00
10Gb s $793520 $1,500.001 $6,114.001 $0.00 $4,585.50 $0.00
StatedAll Pricing Will Include Premium - - Levels For All Circuits
Ethernet Virtual Private Une-Spoke -Port and Bandwidth
1 Year 3 Year 5 Year
Bandwidth Monthly Install Monthly Install Monthly Install
10Mb s $300.00 $1,500.00 $300.00 $0.00 $300.00 $0.00
100Mb s $621.60 $1,500.00 $480.00 $0.00 $360.00 $0.00
200Mb s $884.10 $1,500.00 $684.00 $0.00 $513.00 $0.00
300Mb s $957.95 $1,500.00 $741.00 $0.00 $555.75 $0.00
400Mb s $1,027.95 $1,500.00 $795.00 $6.00 $596.25 $0.00
500Mb s $1,101.80 $1,500.00 $852.00 $0.00 $639.00 $0.00
600Mb s $1,171.80 $1,500.00 $906.00 $0.00 $679.50 $0.00
700Mb s $1,245.65 $1,500.00 - $963.00 $0.00 $722.25 $0.00
800Mb s $1,315.65 $1,500.00 $1,017.00 $0.00 $762.75 $0.00
900Mb s $1,389:85 $1,500-00 $1,074.00 $0.00 $805.50 $0.00
1Gb s $1,459.85 $1500.00 $1,128.00 $0.00 $846.00 $0.00
2Gb s $2,067.10 $1,500.00 $1,587.00 $0.00 $1,190.25 $0.00
3Gb s $2,374.05 $1,500.00 $1,824.00 $0.00 $1,368.00 $0.00
4Gb s $2,755,20 $1,500.00 $2,118.00 $0.00 $1,588.50 $0.00
5Gb s $3,021.90 $1,500.00 2,331.001 $0.00 $1,748.25 $0.00
6Gb s $3,225.95 $1,500.00 $2,481.00 $0.00 $1860.75 $0.00
7Gb s $3,749.20 $1,500.00 $2,892.00 $0.00 $2169.00 $0.00
8Gb s $4,647.30 $1,500.00 $3,585.00 $0.00 $2,6.93.75 $0.00
9Gb s 1 $5,763.451 $1,500.001 $4,446.00 $0.001 $3,334.601 $0.00
10Gb s $7,935.20 $1,600.001 $6,114.001 $0.00 $4,585.501 $0.00
Ethernet Virfual Ptivatd Line -HiJb Site-Pbrt only,
1 Year 3 Year 5 Year
Port Speed Monthly Install Monthly Install Monthly Install
101100Mb s $100.00 $1,500.00 $75.00 $0.00 $50.00 $0.00
1Gb s $250.25 $1,500.00 $195.00 $0.00 $146.25 $0.00
10Gb s 1 $787.601 $1,500.001 $600.00 $0.00 $460.001 $0.00
Ethernet PriVAtd Line-2 P'dtts and Bandwidth
th
1 Year 1 3 Year 1 5 Year
Exhibit A to Attachment D(II)
Bandwidth Monthly Install Monthly Install Monthly Install
10Mbps $400.00 $1,500.00 $350.00 $0.00 $300.00 $0.00
100Mbps $625.10 $1,500.00 $483.00 $0.00 $362.25 $0.00
200Mbps $1,052.80 $1,500.00 $816.00 $0.00 $612.00 $0.00
300Mb s $1,095.50 $1,500.00 $849.00 $0.00 $636.75 $0.00
400Mbps $1,138.20 $1,500.00 1 $882.00 $0.00 $661.50 $0.00
500Mbps $1,180.90 $1,500.00 $915.00 $0.00 $686.25 $0.00 '
600Mbps $1,223.95 $1,500.00 $948.00 $0.00 $711.00 $0.00
700Mbps $1,266.65 $1,500.00 $981.00 $0.00 $735.75 $0.00
800Mbps $1,309.35 1 $1,500.00 $1,014.00 $0.00 $760.50 $0.00
900Mbps $1,352.05 1 $1,500.00 $1,047.00 $0.00 $785.25 $0.00
1Gbps $1,398.95 $1,500.00 1 $1,083.00 $0.00 $812.25 $0.00
2Gbps $2,819.60 $1,500.00 $2,160.00 $0.00 $1,620.00 $0.00
3Gbps $3,192.70 $1,500.00 $2,448.00 $0.00 $1,836.00 $0.00
4Gbps $3,675.00 $1,500.00 $2,820.00 $0.00 $2,115.00 $0.00
SGbps $4,347.70 $1,500.00 $3,339.00 $0.00 $2,504.25 $0.00
6Gbps $5,288.85 $1,500.00 $4,065.00 $0.00 $3,048.75 $0.00
7Gbps $6,218.45 $1,500.00 $4,782.00 $0.00 $3,336.50 $0.00
8Gbps $7,194.60 $1,500.00 $5,535.00 $0.00 $4,151.25 $0.00
9Gbps $8,205.40 $1,500.00 $6,315.00 $0.00 $4,736.25 $0.00
10Gbps $9,135.00 $1,500.00 $7,032.00 TO-.001 $5,274.00 $0.00
Bthechet Private Line-2 Ports and Bandwidth via EbHFG(Goan)
4Mbs $293.30 $1,000.00 $266.00 $500.00 $239.40 $0.00
6Mbps $363.60 $1,000.00 $329.00 $500.00 $296.10 $0.00
8Mbps $400.00 $1,000.00 $35Q.00 $500,001 $300.00 $0.00
All Pricing Stated Will Include Premium Service Levels For All Circuits
NOTES
No charge for Installation and construction for current PCN lit sites as of 3/1/15 if 3 or 5 year terns are selected for all
sites per contract.
♦ Installation charge required for current PCN sites asof 3/115 with selection of 1 year term
♦ For new sites not identified in current PCN Involcithe following Installation charges apply:
10 to 800 Mb--
• Installation charges will be on an Individual Case Basis
500 Mb to 1000 Mb-
no charge for construction costs for under 500 ft.
50%of construction costs charged for 500-1000 ft.
100%of construction costs for 1000 ft or more.
1000 Mb or greater bandwidth-
no construction costs for under 1000 ft.
50%of construction costs char for reater than 1000 f.
I eme a or n e ces n u n pr c ng
taffles are commensura asu'�scn e�a'nrTwi i,(e.g. 0M-'
EVC w/1000M ENI)
y�lEfdesign,an erneet-Vis service multiplexedu n w s equa e aggregate remote
♦ sites
Selection ofanupgia T0-Ethernet NeT96-rk Inte a-ce a ds e Mon-Th yTaf"e Iai edbelow to the MITC or any gfvee
Interface
Default Physical Interface U Additional onthl Rate
Y Upgraded Physical Interface 1 ear 1 3 year 1 5 year
1000BaseT
100BaseTX 1000BaseSX $192.50 $150.00 $112.50
10008aseLX
1000BaseT 10GBaseSR
1000BaseSX $537.25 $405.00 $303.75
1000BafeLX 10GBaseL3
Pricing as proposed above requires purchase of all sites and does not include any local,state or federal taxes,fees or other
cha es.individual sites may be purchased seearately but will require a new ricing proposal.Tax exemption certificates
♦ Taxes,Surcharges,and Other Similar Charges Miscellaneous
e on axes,SUMnarges,and other similar carges reTer generally to addulonal fees atate a i5ecessarycomponeff
of the cost of a product or service.
Eligibility:Federal taxes,state taxes,and other similar,reasonable charges incurred In obtaining e i e
Telecommunications Services,Internet Access,and Internal Connections are eligible.Such eligible charges include
reasonable administrative recovery by a service provider for participation in the Universal Service Support mechanism.
Administrative cost added by parties other than the service provider,are not eligible.
Attachment R(III)
COMCAST ENTERPRISE SERVICES
GENERAL TERMS AND CONDITIONS
VERSION: 1.2
Software, promotional materials, proposals, quotes, rate
DEFINITIONS information, discount information, subscriber information,
network upgrade information and schedules, network
Affiliate:Any entity that controls,is controlled by or is under operation information (including without limitation
common control with Comcast. information about outages and planned maintenance) and
invoices, as well as the Parties' communications regarding
Agreement, Enterprise Services Master Services such items.
Agreement or MSA: Consists of the Enterprise Master
Services Agreement Cover Page executed by the Customer Customer: The company, corporation, or other entity named
and accepted by Comcast, these Enterprise Services General on the Enterprise Services Master Service Agreement Cover
Terms and Conditions ("General.Terms and Conditions"),the Page and a Sales Order.
then current Product-Specific Attachment for each ordered
Service (`PSA"), any written amendments to the Agreement Customer-Provided Equipment(CE):Any and all facilities,
executed by both Parties including any supplemental terms equipment or devices supplied by Customer for use in
and conditions ("Amendment(s)"), and each Sales Order connection with the Services.
accepted by Comcast under the Agreement.
Demarcation Point:The point of interconnection between the
Amendment(s): Any written amendment to the Agreement, Network and Customer's provided equipment located at a
executed by both Parties, including any supplemental terms Service Location. In some cases the Demarcation Point shall
and conditions. be the User to Network Interface (UNI) port on Comcast
Equipment at a Service Location.
Comcast: The operating company affiliate or subsidiary of
Comcast Cable Communications Management, LLC that General Terms and Conditions: These Enterprise Services
provides the Services under the Enterprise Services Master General Terms and Conditions.
Service Agreement. References to Comcast in the Limitation
of Liability, Disclaimer of Warranties and Indemnification Licensed Software: Computer software or code provided by
Articles shall also include its directors, officers, employees, Comcast or required to use.the Services, including without
agents,Affiliates,suppliers,licensors,successors,and assigns, limitation,associated documentation,and all updates thereto.
as the case may be.
Network: Consists of the Comcast Equipment, facilities,
Comcast Website or Website: The Comcast website where fiber optic cable associated with electronics and other
the General Terms and Conditions,PSAs and other Comcast equipment used to provide the Services.
security and privacy policies applicable to the Agreement will
be posted. The current URL for the Website is Party: A reference to Comcast or the Customer; and in the
�.-I/business.comeast.corn/enterprise-terms-of-service. plural,a reference to both companies.
Comcast may update the Website documents and/or URL from
time to time. Product Specific Attachment(s)(PSA):The additional terms
and conditions applicable to Services ordered by Customer
Comcast Equipment: Any and all facilities, equipment or under the Agreement.
devices provided by Comcast or its authorized contractors at
the Service Location(s) that are used to deliver any of the Revenue Commitment: A commitment by Customer to
Services including, but not limited to, all terminals, wires, purchase a minimum volume of Service during an agreed
modems, lines, circuits, ports, routers, gateways, switches, term,as set forth in a Sales Order.
channel service units, data service units, cabinets, and racks.
Notwithstanding the above,inside telephone wiring within the Sales Order:A request for Comcast to provide the Services to
Service Location,whether or not installed by Comcast,shall a Service Location(s) submitted by Customer to Comcast(a)
not be considered Comcast Equipment. on a then-current Comcast form designated for that purpose or
(b)if available,through a Comcast electronic order processing
Confidential Information: All information regarding either system designated for that purpose.
Party's business which has been marked or is otherwise
communicated as being "proprietary" or "confidential." or Service(s): A service provided by Comcast pursuant to a
which reasonably should be known by the receiving party to Sales Order. All Services provided under the Agreement are
be proprietary or confidential information. Without limiting for commercial use only. Services available under this
the generality of the foregoing, Confidential Information shall Agreement are identified on the Website.
include, even if not marked, the Agreement, all Licensed
Attachment D(in)
Service Commencement Date: The date(s) on which maintenance of the Comcast Equipment used to provide the
Comcast first makes Service available for use by Customer. A Services within the Service Location(s). Customer shall be
single Sales Order containing multiple Service Locations or responsible for securing, and maintaining on an initial and
Services may have multiple Scrvice Commencement Dates. ongoing basis during the applicable Service Term and/or
Renewal Term, such Access within each Service Location
Service Location(s): The Customer location(s) where unless Comcast has secured such access prior to this
Comcast provides the Services, to the extent the Customer Agreement. in the event that Customer; fails to secure or
owns,leases,or otherwise controls such location(s). maintain such Access within a particular Service Location,
Comcast may cancel or tenninffie Service at such particular
Service Term: The duration of time (commencing on the Service Location,without further liability, upon written notice
Service Commencement Date)for which Services are ordered, to Customer. In such event,if Comcast has incurred any costs
as specified in a Sales Order. or expense in installing or preparing to install the Service that
it otherwise would not have incurred, a charge equal to those
Tariff- A federal or stats Comcast tariff and the successor costs and expenses shall apply to Customer's final invoice for
documents of general applicability that replace such tariff in that particular Service Location. If Comcast is unable to
the event of detariffmg. secure or maintain Access outside a particular Service
Location,which Access is needed to provide Services to such
Termination Charges: Charges that may be imposed by Service Location, Customer or Comcast may cancel or
Comcast if,prior to the end of the applicable Service Term (a) temainate Service at such particular Service Location,without
Comcast terminates Services for cause or (b) Customer further liability beyond the termination date,upon a minimum
terminates Services without cause.Termination Charges are as thirty(30)days'prior written notice to the other party.In such
set forth in each PSA,and are in addition to any other rights event, if Comcast has incurred any costs or expense in
and remedies under theAgreement. installing or preparing to install the Service that it otherwise
would not have incurred, Comcast shalt be responsible for
ARTICLE 1 CHANGES TC+THE AGREEMENT such costs or expenses. Any other failure on the part of
TERMS Customer to he ready to receive Service,or any refusal on the
part of Customer to receive Service, shall not relieve
Comcast may change or modify the Agreement, and any Customer of its obligation to pay charges for any Service that
related policies from time to time ("Revisions') by posting is otherwise available for use.
such Revisions to the Comcast Website. The Revisions are
effective upon posting to the Website. Customer will receive z•3 Hazardous Materials.If the presence of asbestos or
notice of the Revisions in the next applicable monthly invoice. other hazardous materials exists or is detected at a Service
Customer shall have thirty(30)calendar days from the invoice Location or within the building where the Service Location is
notice of such Revisions to provide Comcast with written located, Comcast may immediately stop providing Services
notice that the Revisions adversely affect Customer's use of until such a time as such materials are removed.Alternatively
the Service(s). If after notice Comcast is able to verify such Customer may notify Comcast to install the applicable portion
adverse affect but is unable to reasonably mitigate the of the Service in areas of any such Service Location not
Revision's impact on such Services, then Customer may containing such hazardous material. Any additional expense
terminate the impacted Service(s)without further obligation to incurred by Comcast as a result of encountering hazardous
Comcast beyond the termination date, including Termination materials, including but not limited to, any additional
Charges, if any. This shall be Customer's sole and exclusive equipment shall be borne by Customer. Customer shall use
remedy. reasonable efforts to maintain its property and Service
Locations in a manner that preserves the integrity of the
ARTICLE 2 DELIVERY OF SERVICE Services.
2.1 Orders. Customer shall submit to Comcast a 2.4 Comeast Eauimnent. At any time Comcast may
properly completed Sales Order to initiate Service to a Service remove or change Comcast Equipment in its sole discretion in
Location(s). A Sales Order shall become binding on the connection with providing the Services. Customer shall not
Parties when (i) it is specifically accepted by Comcast either move, rearrange, disconnect, remove, attempt to repair, or
electronically or in writing,(ii) Comcast begins providing the oflierwise ape' with any"Comcast Equipment or permit
Service described in the Sales Order or (iii) Comcast begins others to do so,and shall not use the Comeast Equipment for
Custom Installation(as defined in Article 2.7)for delivery of any purpose other than that authorized by the Agreement.
the Services described in the Sales Order,whichever is earlier. Comcast shall maintain Comcast Equipment in good operating
When a Sales Order becomes effective it shall be deemed part condition during the term of this Agreement; provided,
of,and shall be subject to,the Agreement, however,that such maintenance shall be at Comcast's expense
only to the extent that it is related to and/or resulting from the
2.2 Access. In order to deliver certain Services to ordinary and proper use of the Comeast Equipment.
Customer,Comcast may require access,right-of-way, conduit, Customer is responsible for damage to, or loss of, Comcast
and/or common room space ("Access"), both within and/or Equipment caused by its acts or omissions, and its
outside each Service Location. Customer shall provide an noncompliance with this Article, or by fire, theft or other
adequate environmentally controlled space and such electricity casualty at the Service Location(s),unless caused by the gross
as may be required for installation, operation, and negligence or willful misconduct of Comcast.
Attachment D(III)
2.8 Service Acceptance. Except as may otherwise be
2.5 Ownership,Impairment and Removal of Network identified in the applicable PSA,the Service Commencement
The Network is and shall remain the property of Comcast Date shall be the date Comcast completes installation and
regardless of whether installed within or upon the Service connection of the necessary facilities and equipment to
Location(s) and whether installed overhead, above, or provide the Service at a Service Location.
underground and shall not be considered a fixture,or an
addition to the land or the Service Location(s)located thereon. 29 Administrative Website. Comcast may furnish
Customer agrees that it'shall take no action that directly or Customer with one or more user identifications and/or
indirectly impairs Corncast's title to the Network, or any passwords for use on the Administrative Website. Customer
portion thereof, or exposes Comcast to any claim, lien, shall be responsible for the confidentiality and use of such
encumbrance, or legal process, except as otherwise agreed in user identifications and/or passwords and shall immediately
writing by the Parties. Nothing in this Agreement shall notify Comcast if there has been an unauthorized release,use
preclude Comcast from using the Network for services or other compromise of any user identification or password.
provided to other Comcast customers.For a period of twelve In addition, Customer agrees that its authorized users shall
(12)months following Comeast's discontinuance of Service to keep confidential and not distribute any information or other
the Service Location(s), Comcast retains the right to remove materials made available by the Administrative Website.
the Network including,but not limited to,that portion of the Customer shall be solely responsible for all use of the
Network that is located in the Service Location. To the extent Administrative Website,and Comcast shall be entitled to rely
Comcast removes such portion of the Network it"shall be on all Customer uses of and submissions to the Administrative
responsible for returning the Service Location(s) to its prior Website as authorized by Customer. Comcast shall not be "
condition,reasonable wear and tear excepted. liable for any loss,cost, expense or other liability arising out
2.6 Customer-Provided Equipment °`CE").. Comcast of any Customer use of the Administrative Website or any
shall have no obligation to install, operate, or maintain CE. information on the Administrative Website. Comcast may
Customer shall have sole responsibility . for providing change or discontinue the Administrative Website, or
maintenance, repair, operation and replacement of all CE Customer's right to use the Administrative Website, at any
inside telephone wiring and other Customer equipment and time. Additional terms and policies may apply to Customer's
facilities on the Customer's side of the Demarcation Point use of the Administrative Website. These terms and policies
Neither Comcast nor its employees, Affiliates, agents or will be posted on the site.
contractors will be liable for any damage,loss,or destruction ARTICLE 3.BILLING AND PAYMENT
to CE, unless caused by the gross negligence or willful
misconduct of Comcast. CE shall at all times be compatible 3.1 Charges. Except as otherwise provided in the
with the Network as determined by Comcast in its sole applicable PSA, Customer shall pay Comcast one hundred
discretion.In addition to any other service charges that may be percent (100%) of the Custom Installation Fee prior to the
imposed from time to time, Customer shall be responsible for installation of Service. Customer further agrees to pay all
the payment of service charges for visits by Comeast's charges associated with the Services,as set forth or referenced
employees or agents to a Service Location when the service in the applicable PSA, Sales Order(s) or invoice from
difficulty or trouble report results from the use of CE or Comcast. These charges may include, but are not limited to
facilities provided by any party other than Comcast. standard and custom non-recurring 'installation charges,
2.7 Engineering Review. Each Sales Order submitted monthly recurring service charges, usage charges including
by Customer may be subject to an engineering review. The without limitation charges for the use of Comcast Equipment,
engineering review will determine whether and to what extent per-call charges, pay-per-view charges, charges for service
the Network must be extended, built or upgraded ("Custom calls,maintenance and repair charges,and applicable federal,
Installation") in order to provide the ordered Services at the state, and local taxes, fees, surcharges and. recoupments
requested Service Location(s). Comcast will provide (however designated). Some Services such as measured and
Customer written notification in the event-Service installation per-call charges, pay-per-view movies or events, and
at any Service Location will require an additional non- interactive television(as explained in the applicable PSA)may
recurring installation fee("Custom Installation Fee").Custom be invoiced after the Service has been provided to Customer.
Except as otherwise indicated herein or in the applicable
Installation Fees may also be referred to as Construction
Chapges on a Sales Order or Invoice.Customer will have five PSA(s) monthly recurring charges for Ethernet, Video and
(5) days from receipt of such notice to reject the Custom Internet Services that are identified on a Sales Order shall not
Installation Fee and terminate, without further Liability, the increase during the Service Term. Except as otherwise
Sales Order with respect to the affected Service Location(s). indicated herein or in the Sales Order(s), Voice Service y
For certain Services, the Engineering Review will be pricing,charges and fees can be found in the applicable PSA.
conducted prior to Sales Order submission. In such case, 3.2 Third-Party Charges. Customer may incur charges
Customer will have accepted the designated Custom from third party service providers that are separate and apart
Installation Fee upon submission of the applicable Sales fiom, or based on the amounts charged by Comcast. These
Order. may include, .without limitation, charges resulting from
wireless services including roaming charges,accessing on-line
services, calls to parties who charge for their telephone based
Attachment D(III) i
services, purchasing or subscribing to other offerings via the such deposit is no longer necessary, then the amount of the
Internet or interactive options on certain Video services, or deposit(plus any required deposit interest)will be credited to
otherwise. Customer agrees that all such charges, including Customer's account or will be refunded to Customer, as
all applicable taxes, are Customer's sole responsibility. In determined by Comcast.
addition, Customer is solely responsible for protecting the
security of credit card information provided to others in 3.6 Taxes and Fees. Except to the extent Customer
connection with such transactions. provides a valid talc exemption certificate prior to the delivery
of Service, Customer shall be responsible for the,payment of
3.3 Rayment of Bills. Except as otherwise indicated any and all applicable local, state, and federal taxes or fees
herein or in a PSA,Comcast will invoice Customer in advance (however designated). Customer also will be responsible to
on a monthly basis for all monthly recurring charges and fees pay any Service fees, payment obligations and taxes that
arising under the Agreement.All other charges will be billed become applicable retroactively.
monthly in arrears, including without limitation certain usage
based charges and third party pass through fees. Payment is 3.7 Other Government-Related Costs and Fees.
due upon presentation of an invoice. Payment will be Comcast rdserves the right to invoice Customer for any fees or
considered timely made to Comcast If received within thirty payment obligations in connection with the Services imposed
(30) days after the invoice date. Any charges not paid to by governmental or quasi-govermnentaI bodies in connection
Comcast within such period will be considered past due. If a with the sale, installation, use, or provision of the Services,
Service Commencement Date is not the first day of a billing Including, without limitation, applicable franchise fees, right
period, Customer's first monthly invoice shall include any of way fees and Universal Service Fund charges (if any),
piv-rated charges for the Services,fiorn the date of installation regardless of whether Comcast or its Affiliates pay the fees
to the start of the next billing period.In certain cases,Comcast directly or are required by an order, rule, or regulation of a
may agree to provide billing services on behalf of third parties, taxing jurisdiction to collect them from Customer.Taxes and
as the agent of the third patty.Any such third-party charges other government-related fees and surcharges may be changed
shall be payable pursuant to any contract or other arrangement with or without notice, In the event that any newly adopted
between the third party and Customer and/or Comcast, law,rule,regulation or judgment increases Comeast's costs of
Comcast shall not be responsible for any dispute regarding providing Services, Customer shall pay Comewt's additional
these 'charges between Customer and such third party. costs of providing Services under the new law,rule,regulation
Customer must address all such disputes directly with the third or judgment.
party' 3.8 Disputed Invoice. If Customer disputes any portion
of an invoice by the due date,Customer must pay fifty percent
3.4 Partial Payment Martial payment of any bill will be (50°1/6)of the disputed charges, in addition to the undisputed
applied to the Customer's outstanding charges in amounts and portion of the invoice and submit a written claim,including all
proportions solely determined by Comcast.No acceptance of documentation substantiating Customer's claim, to Comcast
partial payment(s)by Comcast shall constitute a waiver of any for the disputed amount of the invoice by the invoice due date,
rights to collect the frill balance owed under theAgm=ent. The Parties shall negotiate in good faith to resolve any billing
dispute. Comcast will refund/credit all valid disputes resolved
3.5 Credit App-in vel and Deposits. Initial and ongoing in Customer's favor as of the date the disputed charges first
delivery of Services .may be subject to credit approval. appeared on the Customer's invoice.
Customer shall provide Comcast wlth credit information 3.9 Past-Dne Amo
requested by Comcast. Customer authorizes Comcast to make Any payment not made when.
due will be subject to a late charge of 1.5%per month or the
inquiries and to receive infonpation about Customer's credit highest rate allowed by law on the unpaid invoice,whichever
history from others and to enter this information in Customer's is lower. If Customer's account is delinquent, Comcast may
records. Customer represents and warrants that all credit refer the account to a collection agency or attorney that may
information that it provides to Comeast will be true and pursue collection of the past due amount and/or any Comcast
correct. Comcast;in Its sole discretion,may deny the Services Equipment which Customer fails to return in accordance with
based upon an unsatisfactory credit history. Additionally, the Agreement. If Comcast is required to use a collection
subject to applicable regulations, Comcast may require agency or attorney to collect any amount owed by Customer
Customer to make a deposit Cm an amount not to exceed an or any unretumed Comcast Equipment, Customer agrees to
estimated two months charge for the Services)as a condition pay all reasonable costs of collection or other action. The
to Comeast's provision of the Services, or as a condition to remedies set forth herein are In addition to and not in
Comcast's continuation of the Services. The deposit will not, limitation of any other rights and remedies available to
unless explicitly required by law, bear interest and shall be Comcast under the Agreement or at law or in equity.
held by Comcast as security. for payment of Customer's
charges. Comcast may apply the deposit to any delinquent 3.10 Rejected Payments. Except to the extent otherwise
Customer charges upon written notice to Customer. if prohibited by law,Customer will be assessed a service charge
Comcast uses any or all of the deposit to pay an account up to the full amount permitted under applicable law for any
delinquency, Customer will replenish the deposit by that check or other instrument used to pay for the Services that has
amount within five (5) days of its receipt of written notice been rejected by the bank or other financial institution.
from Comcast. If the provision of Service to Customer is
terminated,or if Comcast determines In its sole discretion that
Attachment D(III)
3.11. Fraudglent Use of Services.Customer is responsible Services,any and all applicable Termination Charges, and the
for all charges attributable to Customer with respect to the return of all applicable Comcast Equipment. Comcast may
Service(s), even if incurred as the result of fraudulent or terminate the Agreement if Customer does not take any
unauthorized use of the Service. Comcast may, but is not Service under a Sales Order for twelve (12) consecutive
obligated to,detect or report unauthorized or fraudulent use of months or longer.
Services to Customer. Comcast reserves the right to restrict, 5.2 Termination for Cause.If either Party breaches any
suspend or discontinue providing any Service in the event of
material term of the Agreement, other than a payment term,
fraudulent use of Customer's Service. and the breach continues un-remedied for thirty (30) days
after written notice of default, the other Party may terminate
ARTICLE 4. TERM;REVENUE COMMITMENT for cause any Sales Order materially affected by the breach. If
Customer is in breach of a payment obligation (including
4.1 Agreement Tern. Upon execution of the failure to pay a required deposit)and fails to make payment in
Agreement, Customer shall be allowed to submit fWI within ten (10) days after receipt of written notice of
Sales Orders to Comcast during the term referenced default, Comcast may,at its option,terminate the Agreement,
on the Master Service Agreement Cover Page("MSA terminate the affected Sales Orders,suspend Service under the
Term").After the expiration of the initial MSA Tenn, affected Sales Orders, and/or require a deposit, advance
Comcast may continue to accept Sales Orders from payment, or other satisfactory assurances in connection with
Customer under the Agreement,or require the Parties any or all Sales Orders as a condition of continuing to provide
to execute a new agreement. This Agreement shall Service; except that Comcast will not take any such action as
continue in effect until the expiration or termination a result of Customer's non-payment df a charge subject to a
date of the last Sales Order entered under the timely billing dispute, unless Comcast has reviewed the
Agreement, unless terminated earlier in accordance dispute and determined in good faith that the charge is correct,
with theAgreement. A Sales Order may be terminated by either Party immediately
upon written notice if the other Party has become insolvent or
involved in liquidation or termination of its business, or
4.2 Sales Order Term/Revenue Commnitment. The adjudicated bankrupt, or been involved in an assignment for
applicable Service Term and Revenue Commitment (if any) the benefit of its creditors. Termination by either Party of a
shall be set forth in the Sales Order. Unless otherwise stated Sales Order does not waive any other rights or remedies that it
in these teams and conditions or the applicable PSA,if a Sales may have under this Agreement. The non-defaulting Party
Order does not specify a term of service, the Service Term shall be entitled to all available legal and equitable remedies
shall be one (1) year from the Service Commencement Date. for such breach.
In the event Customer fails to satisfy a Revenue Commitment,
Customer will be billed a shortfall charge pursuant to the
terms of the applicable PSA. 5.3 Effect of Expiration/Termination of a Sales Order.
4.3 Sales Order Renewal. Upon the expiration of the Upon the expiration or termination of a Sales Order for any
Service Term,and unless otherwise agreed to by the Parties in reason:
the Sales Order, each Sales Order shall automatically renew
for successive periods of one (1) year each ("Renewal A. Comcast shall disconnect the applicable Service,
Term(s)"), unless otherwise stated in these terms and
conditions or prior notice of non-renewal is delivered by either B. Comcast may delete all applicable data, files,
Party to the other at Yeast thirty(30)days before the expiration electronic messages,or other information stored on Comcast's
of the Service Term or the their current Renewal Term. servers or systems;
Effective at any time after the end of the Service Term and
from time to time thereafter,Comcast may,modify the charges C. If Customer has terminated the Sales Order prior to
for Ethernet, Internet and/or Video Services subject to thirty the expiration of the Service Term for convenience, or if
(30)days prior written notice to Customer.Customer will have Comcast has terminated the Sales Order prior to the expiration
thirty (30) days from receipt of such notice to cancel the of the Service Term as a result of material breach by
applicable Service without further liability. Should Customer Customer, Comcast may assess and collect from Customer
fail to cancel within this timeframe,Customer will be deemed applicable Termination Charges(if any);
to have accepted the modified Service pricing.
D. Customer shall, permit Comcast to retrieve from the
ARTICLE 5.TERMINATION WITHOUT FAULT applicable Service Location any and all Comcast Equipment.
DEFAULT If Customer fails to permit such retrieval or if the retrieved
5.1 Termination for Convenience.Notwithstanding any Comcast Equipment has been damaged and/or destroyed other
other term or provision in this Agreement, Customer shall than by Comcast or its agents,normal wear and tear excepted,
have the right, in its sole discretion, to terminate any or all Comcast may invoice Customer for the manufacturer's list
Sales Order(s) at any Time during the Service Term(s), upon price of the relevant Comcast Equipment, or in the event of
thirty(30)days prior written notice to Comcast and subject to minor damage to the retrieved Comcast Equipment,the cost of
payment to Comcast of all outstanding amounts due for the repair, which amounts shall be immediately due and payable;
and
Attachment D(III)
LOSS REVENUE,LOSS OF USE,LOSS OF BUSINESS,
E. Customer's right to use applicable Licensed Software OR LOSS OF PROFIT WHETHER SUCH ALLEGED
shall automatically terminate,and Customer shall be obligated LIABILITY ARISES IN CONTRACT OR TORT
to return all Licensed Software to Comcast. HOWEVER,THAT NOTHING HEREIN IS INTENDED
TO LIMIT CUSTOMER'S LIABILITY FOR AMOUNTS
5.4 Resumption of Service. If a Service has been OWED FOR THE SERVICES,FOR ANY EQUIPMENT
discontinued by Comcast for cause and Customer requests that OR SOFTWARE PROVIDED BY COMCAST OR FOR
the Service be restored, Comcast shall have the sole and TERMINATION CHARGES.
absolute discretion to restore such Service. At Comcast's
option, deposits, advanced payments, nonrecurring charges, 6.2 Disclaimer of Warranties.
and/or an extended Service Term may apply to restoration of
Service. A. Services shall be provided pursuant to the terns and
conditions in the applicable PSA and Service Level
5.5 Re ug latoly and Legal Cho pge£. The Parties Agreement, and are in lieu of all other warranties, express,
acknowledge that the respective rights and obligations of each implied or statutory, including, but not limited to,the implied
Patty as set forth in this Agreement upon its execution are warranties of merchantability,fitness for a particular purpose,
based on applicable law and regulations as they exist on the title,and non-infringement.TO THE MAXIMUM)C MNT
date of execution of this Agreement. The Parties agree that in ALLOWED BY LAW, COMCAST EXPRESSLY
the event of any subsequent decision by a legislative,regulatory DISCLAIMS ALL SUCH EXPRESS, IMPLIED AND
or judicial body, including any regulatory or,judicial order, STATUTORY WARRANTIES.
rule, regulation, decision in any arbitration or other dispute
of
resolution or other legal or regulatory action that materially a Without limiting the generalityxcept as otherwise identified in a PSA A the foregoing, and
affects the provisions or ability to provide Services on eor Service Level
economic terms of theAgreement,Comcast may,by providing Agreement, Comcast does not warrant that the Services,
Comcast Equipment, or Licensed Software will be
written notice to the Customer, require that the affected
uninterrupted,error-free,or free of latency or delay,or that the
provisions of the Agreement be renegotiated in good faith. If
Customer refuses to enter such renegotiations, or the Parties Services,Comcast Equipment,or Licensed Software will meet
can't reach resolution on newAgreement terms,Comcast may, customer's requirements, or that the Services, Comcast
in its sole discretion,terminate this Agreement,in whole or in Equipment, or Licensed Software will prevent unauthorized
part,upon sixty(60)days written notice to Customer. access by third parties.
C. In no event shall Comcast, be liable far any loss,
ARTTCLE 6.LIMITATION OF L A Bir ITV damage or claim arising out of or related to: (i) stored,
DISCLAMROFWARRANTIES.WA_Rtyix , transmitted,or recorded data,files,or software;(ii)any actor
6.1 Limitation of Liabibty. omission of Customer, its users or third parties; (iii)
interoperability, interaction or interconnection of the Services
A, THE AGGREGATE LIABILITY OF COMCAST with applications, equipment, services or networks provided
FOR ANYAND ALL LOSSES,DAMAGES AND CAUSES by Customer or third parties;or(iv)loss or destruction of any
ARISING OUT OF THE AGREEMENT, INCLUDING, Customer hardware,software,files or data resulting from any
BUT NOT LIMITED TO, THE PERFORMANCE OF virus or other harmful feature or R•ow any attempt to remove
SERVICE, AND NOT OTHERWISE LIMITED it Customer is advised to back up all date,files and software
HEREUNDER,WHETHER IN CONTRACT,TORT, OR prior to the installation of Service and at regular intervals
OTHERWISE, SHALL NOT EXCEED DIRECT thereafter.
DAMAGES EQUAL TO THE SUM TOTAL OF
PAYMENTS MADE BY CUSTOMER TO COMCAST 6.3 Disruption of Service. Notwithstanding the
DURING THE THREE (3) MONTHS IMMEDIATELY performance standards identified in a PSA, the Services are
PRECEDING THE EVENT FOR WHICH DAMAGES not fail-safe and are not designed or intended for use in
ARE CLAIMED. THIS LIMITATION SHALL NOT situations requiring fail-safe performance or in which an error
APPLY TO COMCAST'S INDEMNIFICATION or interruption in the Services could lead to severe igiury to
OBLIGATIONS AND CLAIMS FOR DAMAGE TO business, persons, property or environment ("High Risk
PROPERTY AND/OR PERSONAL INJURIES Activities").These High Risk Activities may include,without
(INCLUDING DEATH)ARISING OUT OF THE GROSS limitation, vital business or personal communications, or
NEGLIGENCE OR WILLFUL MISCONDUCT OF activities where absolutely accurate data or information is
COMCAST WHILE ON THE CUSTOMER SERVICE required.
LOCATION. 6.4 Customer's sole and exclusive remedies are expressly set
forth in the Agreement. Certain of the above exclusions may
B. NEITHER PARTY SHALL BE LIABLE TO THE not apply if the state in which a Service is provided does not
OTHER FOR ANY INCIDENTAL, INDIRECT, allow the exclusion or limitation of implied warranties or does
SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL not allow the limitation or exclusion of incidental or
DAMAGES,WHETHER OR NOT FORESEEABLE, OF consequential damages. In those states, the liability of
ANY KIND INCLUDING BUT NOT LIMITED TO ANY Comcast is limited to the maximum extent permitted by law.
Attachment D(III)
including, without limitation,end-user license agreements for
ARTICLE 7. INDEMNIFICATION the Licensed Software. Comcast and its suppliers shall retain
ownership of the Licensed Sofhvare,and no rights are granted
7.1 Comeast's Indemnification Obligations. Comcast to Customer other than a license to use the Licensed Software
shall indemnify defend, and hold harmless Customer and its under the terms expressly set forth in this Agreement.
parent company, affiliates, employees, directors, officers, and '
agents from and against all claims,demands,actions,causes of 8.2 Restrictions. Customer agrees that it shall not: (i)
actions, damages, liabilities, losses, and expenses (including copy the Licensed Software(or any upgrades thereto or related
reasonable attorneys' fees) ("Claims") ineurTed as a result of: written materials) except for emergency back-up purposes or
infringement of U.S.patent or copyright relating to the Comcast as permitted by the express written consent of Comcast; (ii)
Equipment or Comcast Licensed Software hereunder;damage to reverse engineer, decompile, or disassemble'the Licensed
tangible personal property or real property,and personal injuries Software; (iii) sell, lease, license, or sublicense the Licensed
(including death)arising out of the gross negligence or willful Software; or (iv) create, write, or develop any derivative
misconduct of Comcast while working on the Customer Service software or any other software program based on the Licensed
Location. Software.
7.2 Customer's Indemnification Obligations.Customer 8.3 Updates. Customer acknowledges that the use of
shall indemnify, defend,and hold harmless Comcast from any Service may periodically require updates and/or changes to
and all Claims arising on account of or in connection with certain Licensed Software resident in the Comcast Equipment
Customer's use or sharing of the Service provided under the or CE. If Comcast has agreed to provide updates and changes,
Agreement, including with respect to: libel, slander, such updates and changes may be performed remotely or on-
infringement of copyright, or unauthorized use of trademark, site by Comcast, at Comcast's sole option. Customer hereby
trade name, or service mark arising out of communications via consents to, and shall provide fi•ee access for, such updates
the Service; for patent itiMngement arising from Customer's deemed reasonably necessary by Comcast.If Customer fails to
combnring or connection of CE to use the Service;for damage agree to such updates, Comcast will be excused from the
arising out of the gross negligence or willful misconduct of applicable Service Level. Agreement and other performance
Customer with respect to users of the Service. credits, and any and all liability and indemnification
7.3 Indemnification Procedures. The Indemnifying obligations regarding the applicable Service.
Party agrees to defend the Indemnified Party for any loss, 8.4 Export Law and Regulation. Customer
injury, liability, claim or demand ("Actions") that is the acknowledges that any products, software, and technical
subject of this Article 7. The Indemnified Party agrees to information (including, but not limited to, services and
notify the Indemnifying Party promptly, in writing, of any training)provided pursuant to the Agreement may be subject
Actions, threatened or actual, and to cooperate in every to U.S. export laws and regulations. Customer agrees that it
reasonable way to facilitate the defense or settlement of such will not use distribute, transfer, or transmit the products,
Actions. The Indemnifying Party shall assume the defense of software, or technical information (even if incorporated into
any Action with counsel reasonably satisfactory to the other products) except in compliance with U.S. export
Indemnified Party, The Indemnified Party may employ its regulations. If requested by Comcast, Customer also agrees to
own counsel hi any such case, and shall pay such counsel's sign written assurances and other export-related documents as
fees and expenses. The Indemnifying Party shall have the may be required for Comcast to comply with U.S. export
right to settle any claim for which indemnification is available; regulations.
provided, however, that to the extent that such settlement
requires the Indemnified Party to take or refrain from taking 8.3 Ownership of Telephone Numbers and Addresses.
any action or purports to obligate the Indemnified Party, then Customer acknowledges that use of certain Services does not
the Indemnifying Party shall not settle such claim without the give it any ownership or other rights in any telephone number
prior written consent of the Indemnified Party,which consent or Internet/on-line addresses provided, including but not
shall not be unreasonably withheld,conditioned or decayed. limited to Internet Protocol("IP")addresses,e-mail addresses
ARTICLE 8. SOFTWARE&SERVICES and web addresses.
8.1 License. If and to the extent that Customer requires 8.6 Intellectual Property Rights in the Services. Title
the use of Licensed Software in order to use the Service and intellectual property rights to the Services are owned by
supplied under any Sales Order, Customer shall have a Comcast,its agents,suppliers or afpliates or their licensors or
personal,nonexclusive,nontransferable,and limited license to otherwise by the owners of such material. The copying,
use such Licensed Software in object code only and solely to redistribution, bundling or publication of the Services, in
the extent necessary to use the applicable Service during the
corresponding Service Term. All Licensed Software provided whole or in part, without express prior written consent from
to Customer,and each revised version thereof,is licensed(not Comcast part,owner of such material,L prohibited.
sold) to Customer by Comcast only for use in conjunction ARTICLE 9. CONFIDENTIAL INFORMATION AND
with the Service. Customer may not claim title to, or an PRIVACY
ownership interest in, any Licensed Software (or any
derivations or improvements thereto), and Customer shall 9.1 Disclosure and Use. All Confidential Information
execute any documentation reasonably required by Comcast, disclosed by either Party shall be kept by the receiving party in
Attachment D(Ill)
strict confidence and shall not be disclosed to any third party same to the extent necessary to satisfy any law, regulation,or
without the disclosing party's express written consent. gdvernmental request. Comcast shall have no liability or
Notwithstanding the foregoing, such information may be responsibility for content received or distributed by Customer
disclosed(i)to the receiving party's employees,affiliates,and or its users through the Service,and Customer shall indemnify,
agents who have a need to know for the purpose of performing defend, and hold Comcast and its directors, officers,
this•Agreement, using the Services, rendering the Services, employees, agents, subsidiaries, affiliates, successors, and
and marketing related products and services(provided that in assigns harmless from any and all claims, damages, and
allcases the receiving party shall take appropriate measures expenses whatsoever (including reasonable attorneys' fees)
prior to disclosure to its employees, affiliates, and agents to arising from such content attributable to Customer or its users.
assure against unauthorized use or disclosure); or (ii) as For the avoidance of doubt,the monitoring of data described
otherwise authorized by this Agreement. Each Party agrees to in this Section 9.6 refers to aggregate data and types of traffic
treat all Confidential Information of the other in the same (protocol, upstream/downstream utilization, etc.). Comcast
manner as it treats its own proprietary information, but in no does not have access to the content of encrypted data
case using a degree of care less than a reasonable degree of transmitted across Comcast networks.
care.
9.2 Exceptions. Notwithstanding the foregoing, each 9.7 Survival of Confidenti it OUlitrations. The
Party's confidentiality obligations hereunder shall not apply to obligations of confidentiality and limitation of use described
information that-(1) is already known to the receiving party in this Article 9 shall siuvive the expiration and termination of
without a pre-existing restriction as to disclosure; (ii) is or the.Agreement for a period of two (2) years (or such longer
becomes publicly available without fault of the receiving* period as may be required by law).
party; (iii)is rightfully obtained by the receiving party from a
tjrird party without restriction as to disclosure,or is approved ARTICLE 10 USE OF SERVICE;USE AND PRIVACY
for release by written authorization of the disclosing party;(iv) POLICIES
is developed independently by the receiving party without use
of the disclosing party's Confidential Information; or (v) is 10.1 Prohibited Uses and Comcast Use Policies.
required to be disclosed by law or regulation. Customer is prohibited fiom using, or permitting the use of,
9.3 Publicity. The Agreement provides no right to use any Service (i)for any purpose in violation of any law, rule,
any Party's or its affiliates'trademarks,service marks,or trade regulation, or policy of any government authority; (ii) in
names, or to otherwise refer to the other Party in any violation of any Use Policy (as defined below); (iii) for any
marketing promotional,or advertising use as to which Customer has not obtained all required
b>P as sing materials re activities. government approvals, authorizations, licenses, consents, and
Neither Party shall issue any public�iion or press release permits; or (iv) to interfere unreasonably with the use of
relating to, or otherwise disclose the existuurce of, the terms Comcast service by others or the operation. of the Network.
and conditions of any contractual relationship between
Comcast and Customer,except as permitted by the Agreement Customer is responsible for assuring that any and all of its
users comply with the provisions of the Agreement. Comcast
or otherwise consented to in writing by the other Party. reserves the right to act immediately and without notice to
9.4 Passwords. Comcast may furnish Customer with
terminate or suspend the Services and/or to remove from the
Services any information transmitted by or to Customer or
user identifications and passwords for use in conjunction with users, if Comcast determines that such use is prohibited as
certain Services, including, without limitation, for access to identified herein, or information does not conform with the
certain non-public Comcast website materials. Customer requirements set or Comcast reasonably believes that such use
understands and agrees that such information shall be subject or information may violate any laws, regulations, or written
to Comcast access policies and procedures located on and electronic instructions for use.Furthermore,to the extent
Comcast's Wee b Site. applicable, Services shall be subject to Comeast's acceptable
9.5 Remedies. Notwithstanding any other Article of this use policies ("Use Policies") that may limit use. The Use
Agreement, the non-breaching Party shall be entitled to seek Policies and other security policies concerning the Services
equitable relief to protect its interests pursuant to this Article are posted on the Website, and are incorporated into this
Agreement by reference. Comcast may update the Use
9,including,but not limited to,injunctive relief. Policies from time to time, and such updates shall be deemed
9.6 Monitoring of Services. Except as otherwise effective immediately upon posting, with or without actual
expressly set forth in a PSA, Comcast assumes no obligation notice to Customer. Comcast's action or inaction in enforcing
to pre-screen or monitor Customer's use of the Service, acceptable use shall not constitute review or approval of
including without limitation postings and/or transmission. Customer's or any other users'use or information.
However, Customer acknowledges and agrees that Comcast
and its agents shall have the right to pre-screen and monitor 10.2 $iyacy Policy. In addition to the provisions of
such use from time to time and to use and disclose such results Article 9, Conrcast's commercial privacy policy applies to
to the extent necessary to operate the Service properly, to Comcast's handling of Customer confidential information.
ensure compliance with applicable use policies,to protect the Comcast's privacy policy is available on the Website.
rights and/or property of Comcast, or in emergencies when
physical safety is at issue,and that Comcast may disclose the
Attachment D(III)
10.3 Privacy Note Regarding Information Provided to 11.4 Entire Understanding. The Agreement, together
Third Parties.Comcast is not responsible for any information with any applicable Tariffs,constitutes the entire understanding
provided by Customer to third parties.Such Information is not of the Parties related to the subject matter hereof. The
subject to the privacy provisions of this Agreement. Customer Agreement supersedes all prior agreements, proposals,
assumes all privacy and other risks associated with providing representations, statements, or understandings, whether
personally identifiable information to third parties via the written or oral,concerning the Services or the Parties'rights or
Services. obligations relating to Services. Any prior representations,
promises, inducements, or statements of intent regarding the
14.4 Prohibition on Resale. Customer may not sell, • Services that are not embodied in the Agreement are of no
resell,sublease, assign, license, sublicense, share, provide,or effect. No subsequent agreement among the Parties concerning
otherwise utilize in conjunction with a third party (including, Service shall be effective or binding unless it is made in writing
without limitation, in any joint venture or as part of any by authorized representatives of the Parties.Terms or conditions
outsourcing activity)the Services or any component thereof. contained in any Sales Order, or restrictive endorsements or
other statements on any form of payment,shall be void and of
10.5 Violation. Any breach of this Article 10 shall be no force or effect.
deemed a material breach of this Agreement. In the event of
such material breach, Comcast shall have the right to restrict, 11.5 Tariffs. Notwithstanding anything to the contrary in
suspend, or terminate immediately any or all Sales Orders, the Agreement,Comcast may elect or be required to file with
without liability on the part of Comcast, and then to notify regulatory agencies tariffs for certain Services. In such event,
Customer of the action that Comcast has taken and the reason the terms set forth in the Agreement may, under applicable
for such action, in addition to any and all other rights and law,be superseded by the terms and conditions of the Tariffs.
remedies under this Agreement. Without limiting the generality of the foregoing, in the event
ARTICLE 11. MISCELLANEOUS TERMS of any inconsistency with respect to rates,the rates and other
terms set forth in the applicable Sales Order shall be treated as
11.1 Force Majeure. Neither Party (and in the case of individual case based arrangements to the maximum extent
Comcast,Comcast affiliates and subsidiaries)shall be liable to permitted by law, and Comcast shall take such steps as are
the other Party for any delay, failure in performance,loss,or required by law to make the rates and other terms enforceable.
If Comcast voluntarily or involuntarily
damage to the extent caused by force majeure conditions such
involuntarily cancels or withdraws a
as acts of God,fire,explosion,power blackout,cable out,acts Tariff under which a Service is provided to Customer, the
Service will thereafter be provided pursuant to the Agreement
of regulatory or governmental agencies, unavailability of
right-of--way or materials, or other causes beyond the Party's and the terms and conditions contained in the Tariff
reasonable control, except that Customer's obligation to pay Immediately prior to its cancellation or withdrawal. In the
for Services provided under the Agreement shall not be event that Comcast is required by a governmental authority to
excused. Changes in economic, business or competitive modify a Tariff under which Service is provided to Customer
condition shall not be considered force majetue events. in a manner that is material and adverse to either Party, the
affected Party may terminate the applicable Sales Order upon
11.2 Assignment or Transfer. Customer shall a minimum thirty (30) days'prior written notice to the other
not assign any right,obligation or duty;in whole or in part,nor Patty,without further liability
of any other interest hereunder, without the prior written 11.6 Construction. In the event that any portion of the
consent of Comcast, which shall not be unreasonably Agreement is held to be invalid or unenforceable, the Parties
withheld. All obligations and duties of either Party under this shall replace the invalid or unenforceable portion with another
Agreement shall be binding on all successors in interest and provision that, as nearly as possible, reflects the original
assigns of such Party. Nothing herein is intended to limit
Comcast's use of third-party consultants and contractors to intention of the Parties, and the remainder of the Agreement
perform Services under a Sales Order. shall remain in full force and effect.
11.3 Notices, Any notice sent pursuant to the Agreement 11.7 Survival. The rights and obligations of either Party
shall be deemed given and effective when sent by facsimile that by their nature would continue beyond the termination or
(confirmed by first-class mail), or when delivered by expiration of a Sales Order shall survive termination or
overnight express or other express delivery service, in each expiration of the Sales Order.
case as follows: (i)with respect to Customer, to the address 11.8 Choice of Law. The domestic law of the state in
set forth on any Sales Order; or(ii) with respect to Comcast, which the Service is provided shall govern the construction,
to: Vice President/Enterprise Sales, One Comcast Center, interpretation, and performance of this Agreement, except to
1701 JFK Blvd.,Philadelphia,PA 19103,with a copy to Cable the extent superseded by federal law..
Law Department, One Comcast Center, 501'Floor, 1701 JFK
Blvd., Philadelphia, PA 19103. Each Party shall notify the 11.9 No Third Party Beneficiaries. This Agreement does
other Party in writing of any changes in its address listed on not expressly or implicitly provide any third party (including
any Sales Order. users) with any remedy, claim, liability,reimbursement, cause
of action,or other right or privilege.
Attachment p(III)
11.10 1<'arties'Authodty to Contract. The persons whose Agreement shall not be interpreted or construed to create an
signatures appear below are duly authorized to enter into the association, agency,joint venture, or partnership between the
Agreement on behalf of the Parties name therein. Parties or to impose any liability attributable to such a
11.11 No Waiver; Etc. No failure by either Party to relationship upon either Party.
enforce any right(s) hereunder shall constitute a waiver of 11.13 Article Headings. The article headings used herein
such right(s). This Agreement may be executed in counterpart are for reference only and shall not limit or control any tern or
copies. provision of this Agreement or the interprctation or
construction thereof.
11.12 latdepeadeant onh•a�torg. The Parties to this
Agreement are Independent contractors. Neither Party is an 11.14 Compliance with Lai". Each of the Parties agrees
agent, representative, or partner of the other Party. Neither to comply with all applicable local,state and federal laws and
Party shall have any right,power,or authority to enter into any regulations and ordinances in the performance of its respective
agreement for, or on behalf of, or incur any obligation or obligations under this Agreement.
liability of, or to otherwise bind, tae other Party. This
Attachment D(IV)
COMCAST ENTERPRISE SERVICES
PRODUCT-SPECIFIC ATTACHMENT
ETHERNET TRANSPORT SERVICES
ATTACHMENT IDENTIFIER:Ethernet Transport,Version 1.5
The following additional terms and conditions are applicable to Sales Orders for Comcast's Ethernet Transport Services:
DEFINITIONS
Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the General Terms and
Conditions.
"Estimated Availability Date"means the target date for delivery of Service.
"Interconnection Facilities" means transmission capacity provided by Comcast,Customer or a third-party supplier to
extend the Comcast Equipment from a Comcast terminal to any other location (e.g., a local loop provided by a local
exchange company or other communications company).
"Off-Net" means geographical locations that are outside of Comcast's service area and/or geographical locations that
are within Comcast's service area generally, but are not readily accessible by Comcast Network facilities. All Off-Net
Services are provided by third-party service providers.
"On-Net" means geographical locations where Corncast currently provides Services through its Comcast Network. On-
Net Services may be provisioned over a fiber optic network, or via a hybrid fiber coax network ("On-Net HFC"), as
available through Comcast.
"Services" means Ethernet Transport Services.
ARTICLE 1.SERVICES
This attachment shall apply to Ethernet Transport Services. A further description of these Services is set forth in
Schedule A-1 hereto which is incorporated herein by reference.
ARTICLE 2. PROVIDER
On-Net Service shall be provided by Comcast Business Communications,LLC.
On-Net Service provided over the On-Net HFC and Off-Net Services are available in a number of Comcast markets. For
information on service availability, call 866-429-0152.
ARTICLE 3. REGULATORY APPROVAL:TRAFFIC MIX
Comcast's pricing for Service may be subject to FCC, public service commission or other regulatory approval. Further,
Customer represents that its use of Service hereunder will be jurisdictionally interstate. Customer agrees to indemnify
and hold Comcast harmless from any claims by third parties resulting from or arising out of Customer's failure to
properly represent or certify the jurisdictional nature of its use of Service.
Interstate Ethernet Transport Services PSA ver. 1.5
Attachment D(IV)
ARTICLE 4.CUSTOM INSTALLATION FEE
Once Comcast accepts a Sales Order for Service, Comcast will invoice Customer for all Custom Installation Fee(s).
Customer will pay the Custom Installation Fee(s)within thirty(30)days of the invoice date unless a payment schedule is
specified in the applicable Service Order,
ARTICLES.PROVISIONING INTERVAL
Following its acceptance of a Sales Order, Comcast shall notify Customer of the Estimated Availability Date applicable to
that Sales Order. Comcast shall use commercially reasonable efforts to provision the Service on or before the Estimated
Availability Date;provided, however,that Comcast's failure to provision by said date shall not constitute a breach of the
Agreement.
ARTICLE 6.SERVICE COMMENCEMENT DATE
Comcast shall inform Customer when Service is available and performing in accordance with the "'Performance
Standards"set forth in Schedule A-1 hereto ("Availability Notification"). Charges for Service shall begin to accrue as of
the Service Commencement Date.The Service Commencement Date shall be earliest of: (A)the date on which Customer
confirms receipt of and concurrence with the Availability Notification;(B)five(5) business days following the date of the
Availability Notification, if Customer fails to notify Comcast that the Service does not comply materially with the
specifications set forth in Schedule A-1 hereto;or(C)the date on which Customer first uses the Service.
ARTICLE 7.TERMINATION CHARGES;PORTABILITY;UPGRADES
7.1 The charges set forth or referenced in each Sales Order have been extended to Customer in reliance on the
Service Term set forth therein. To the extent that a Service Term has not been expressly set forth in a Sales Order,the
minimum Service Term for Services is twelve(12) months.
7.2 Termination Charges for On-Net Services.
A. In the event On-Net Service is terminated following Comcast's acceptance of the applicable Sales Order but prior
to the Service Commencement Date, Customer shall pay Termination Charges equal to the costs and expenses incurred
by Comcast in installing or preparing to install the On-Net Service plus twenty percent(20%).
B. In the event that On-Net Service is terminated on or following the Service Commencement Date but prior to the
end of the applicable Service Term, Customer shall pay Tqrmination Charges equal to a percentage of the monthly
recurring charges remaining for the unexpired portion of the then-current Service Term,calculated as follows:
i. 100%of the monthly recurring charges with respect to months 1-12 of the Service Term; plus
ii.80%of the monthly recurring charges with respect to months 13-24 of the Service Term; plus
iii. 65%of the monthly recurring charges with respect to months 25 through the end of the Service Term; plus
M 100%of any remaining,unpaid Custom Installation Fees.
Termination Charges shall be immediately due and payable upon cancellation or termination and shall be in addition to
any and all accrued and unpaid charges for the Service rendered by Comcast through the date of cancellation or
termination.
Interstate Ethernet Transport Services PSA ver. 1.5
Attachment D(IV)
C. Termination Charges for Off-Net Services. In the event Customer terminates Off-Net Service following
Comcast's acceptance of the applicable Sales Order but prior to the end of the applicable Service Term,Customer shall
pay Termination Charges equal to 100%of the monthly recurring charges remaining through the end of the Service Term
plus 100% of any remaining, unpaid Custom Installation Fees. Customer shall, pursuant to Article 3.2 of the General
Terms and Conditions, also pay any third-party charges, incurred by Comcast as a result of the early termination of
service by the Customer.
7.3 Exclusions. Termination Charges shall not apply to Service terminated by Customer(a)as a result of Comcast's
failure to provision Service within the intervals specified in Article 5 of this attachment or (b) as a result of Comcast's
material and uncured breach in accordance with Article 5.2 of the General Terms and Conditions.
7.4 Portability. Customer may terminate an existing On-Net Service (an "Existing Service") and turn up a
replacement On-Net Service (i.e., having different termination points on Comcast's network) (a "Replacement Service")
without incurring Termination Charges with respect to the Existing Service, provided that (a) the Replacement Service
must have a Service Term equal to or greater than the remaining Service Term of the Existing Service; (b) the
Replacement Service must have monthly recurring charges equal to or greater than the monthly recurring charges for
the Existing Service;(c) Customer submits a Sales Order to Comcast for the Replacement Service within ninety(90) days
after termination of the Existing Service and that order is accepted by Comcast; (d) Customer reimburses Comcast for
any and all installation charges that were waived with respect to the Existing Service; and (e) Customer pays the actual
costs incurred by Comcast in installing and provisioning the Replacement Service.
7.5 Upgrades. Customer may upgrade the speed or capacity of an Existing Service without incurring Termination
Charges, provided that (A) the upgraded Service (the"Upgraded Service") must assume the remaining Service Term of
the Existing Service; (B) the Upgraded Service must have the same points of termination on Comcast's network as the
Existing Service;(C) Customer submits a Sales Order to Comcast for the Upgraded Service and that order is accepted by
Comcast;(D)Customer pays Comcast's applicable nonrecurring charges forthe upgrade;and (E)Customer agrees to pay
the applicable monthly recurring charges for the Upgraded Service commencing with the upgrade. Upgrades to Off-Net
Services are subject to the applicable third party service provider rules and availability. Comcast has no obligation to
upgrade Customer's Off-Net Service.
ARTICLE 8.ADDITIONAL INFORMATION
As necessary for the interconnection of the Service with services provided by others, Comcast may request (as
applicable), and Customer will provide to Comcast, circuit facility assignment information, firm order commitment
information, and design layout records necessary to enable Comcast to make the necessary cross-connection between
the Service and Customer's other service provider(s). Comcast may charge Customer nonrecurring and monthly
recurring cross-connect charges to make such connections.
ARTICLE 9.TECHNICAL.SPECIFICATIONS AND PERFORMANCE STANDARDS;SERVICE LEVEL AGREEMENT
The technical specifications and performance standards applicable to the Service are set forth in Schedule A-1 hereto.
The service level agreement applicable to the Service is set forth in a Schedule A-2 hereto.
Interstate Ethernet Transport Services PSA ver.1.5
Attachment D(IV)
COMCAST ENTERPRISE SERVICES
PRODUCT-SPECIFIC ATTACHMENT
ETHERNET TRANSPORT SERVICES
SCHEDULE A-1
SERVICE DESCRIPTIONS,TECHNICAL SPECIFICATIONS AND PERFORMANCE STANDARDS
COMCAST ETHERNET TRANSPORT SERVICES
Ethernet Transport Version 1.5
Corncast's Ethernet Transport Services ("Service(s)") will be provided in accordance with the service descriptions,
technical specifications and performance standards set forth below:
Definitions
1. Latency. Latency, also known as Frame Delay, is defined as the maximum delay measured for a portion of
successfully delivered service frames over a 30 day period.
2. Jitter.Jitter,also known as Frame Delay Variation, is defined as the short-term variations measured for a portion of
successfully delivered service frames over a 30 day period.
3. Packet Loss. Packet Loss, also known as Frame Loss, is the difference between the number of service frames
transmitted at the ingress UNI and the total number of service frames received at the egress UNI over a 30 day
period.
Service Descriptions
1. Ethernet Network Service (ENS). ENS enables customers to connect physically distributed locations across a
Metropolitan Area Network(MAN) or Wide Area Network(WAN) as if they are on the same Local Area Network(LAN).
The service provides ULAN transparency enabling customers to implement their own VLANs without any coordination
with Comcast. ENS offers three Classes of Service (CoS), as described below. The service is offered with 10/100Mbps,
1Gbps or 10Gbps Ethernet User-to-Network Interfaces (UNI) and is available in increments starting at 1Mbps. The ENS
Service is not available over 0'n-Net HFC.
2. Ethernet Private Line(EPL). EPL service enables customers to connect their Customer Premises Equipment (CPE)
using an Ethernet interface. EPL service enables customers to use any VLANs or Ethernet control protocol across the
service without coordination with Comcast. EPL service provides one Ethernet Virtual Connection (EVC) between two
customer locations. EPL offers three Classes of Service (CoS), as described below. EPL service is offered with
10/100Mbps, 1Gbps,or 10 Gbps Ethernet User-to-Network Interfaces(UNI) and is available in speed increments starting
at 1Mbps.
3. Ethernet Virtual Private Line (EVPL). EVPL service provides an Ethernet Virtual Connedion (EVC) between two
customer locations similar to Ethernet Private Line service but supports the added flexibility to multiplex multiple
services (EVCs) on a single UNI at a customer's hub or aggregation site. The service multiplexing capability is not
available at sites served by the Comcast On-Net HFC. EVPL offers three Classes of Service(CoS), as described below. CoS
options enable customers to select the CoS that best meets their applications'performance requirements.The service is
offered with 10/100Mbps, 1Gbps, or 10 Gbps Ethernet User-to-Network Interfaces (UNI) and is available in speed
increments starting at 1Mbps.
Interstate Ethernet Transport Services PSA ver. 1.5
Attachment D(IV)
4. Off-Net Service Limitations. The above categories of Service are available as Off-Net Services, with the following
limitations:
• Only available with Basic CoS;
• 10Gbps Ethernet UNIs are not available with Off-Net Services;
• Service multiplexing capability is not available on Off-Net EVPL UNIs;
• When ordering 10/100Mbps Off-Net Ethernet UNIs, speed increments may only be ordered in
increments of 10 Mbps, up to a maximum size of of 90Mbps; when ordering 1 Gbps Off-Net Ethernet
UNIs, speed increments may only be ordered in increments of 100Mbps, up to a maximum size of
900Mbps
Ethernet Virtual Circuit(EVC)Area Types
Comcast Ethernet Transport Services are available both within and between certain major metropolitan areas
throughout the United States. Each EVC is assigned an EVC Area Type based upon the locations of respective A and Z
locations.
a. Metro. EVC enables connectivity between customer locations within a Comcast defined Metro.
b. Regional. EVC enables connectivity between customer locations that are jn different Comcast defined
Metro's, but within Comcast defined geographic Regions.
C. Continental. EVC enables connectivity between customer locations that are in different Comcast defined
geographic Regions.
Technical Specifications and Performance Standards for Services
1. . User-to-Network Interface. The Services provides the bidirectional,full duplex transmission of Ethernet frames
using a standard IEEE 802.3 Ethernet interface. Figure I provides a list of available UNI physical interfaces and their
available Committed Information Rate (CIR) bandwidth increments and Committed Burst Sizes (CBS). CIR increments of
less than 10 Mbps are not available in conjunction with Off-Net Services.
list trill physten9 CrA GBS(bytes)
Speed Interface Iueremenla
10 Mbps 10E3ascT 1 Mbps 25,000
900 I Ib s 10OHaseT 10 M11bps 250,000
I Gbps IOUOSaseT or 100,Mbps^ 2,500,000
10000as8X
10 Gbps 11068 se-Le-SIR or i000 ivtbps 23,000,000
l OGtiase-LC2
Figure 1:Available UNI interface types and CBS values for different CIR Increments
2. Class of Service (CoS) Options. As set forth in Figure 2, Comcast Ethernet Transport Services are available with
three different classes of service.The CoS options allow for differentiated service performance levels for different types
of network traffic.CoS is used to prioritize customer mission-critical traffic from lesser priority traffic in the network.The
customer must specify a CIR for each CoS to indicate how much bandwidth should be assigned to each CoS. The
performance metrics associated with each CoS are set forth in Attachment A-1.1 to the Product-Specific Attachment for
Ethernet Service.
Interstate Ethernet Transport Services PSA ver. 1.5
Attachment D(IV)
1
EVC Area T er
On-Net Fiber On-Net HFC Off-Net
Metro Basic,Priority&Premium Basic&Priority Basic
Regional Basic,PriarRY&Premium Basic Basic
Continental Basic,Priority&Premium Basic Basic
Figure 2:Available CoS options by Access Type and EVC Area Type
3. CoS Identification and Marking. If a customer only implements a single CoS solution, they are not required to
mark their packets using 802.1p CoS values.All packets,tagged or untagged,will be mapped into the subscribed CoS. If a
customer Implements a multi-CoS solution or for EVPL ports with service multiplexing,they must mark all packets using
C-tag 802.1p CoS values as specified in Figure 3 to ensure the service will provide the intended CoS performance
objectives specified in Figure 2. For multi-CoS solutions, untagged packets will be treated as if they are marked with a 0.
Packets with other 802.1p values are mapped to the lowest subscribed CoS. In this case, C-tag VLAN ID values are not
relevant as long as they are tagged with a VLAN ID in the range 1 to 4094. For EVPL ports with service multiplexing,
untagged packets will be discarded and C-tag VLAN ID values are used to map traffic to applicable EVC's.
CoS 802.1
Premiwn 5
2.8
f win .0-1
Figure 3, CoS.N4arklag
4. Traffic Management. Comcast's network traffic-policing policies restrict traffic flows to the subscribed CIR for
each service class. If the customer-transmitted bandwidth rate for any CoS exceeds the subscription rate(CIR)and burst
size (CBS), Comcast will discard the non-conformant packets. For packets marked with a non-conformant CoS marking,
the service will transmit them using the Basic service class without altering the customer's CoS markings. Traffic
management policies associated with Off-Net Services will conform to the policies enforced by the third-party service
provider.
5. Maximum Frame Size. Services delivered On-Net support a Maximum Transmission Unit (MTU) packet size of
1600 bytes to support untagged or 802.1Q tagged packet sizes.Jumbo Frame sizes can be supported on an Individual
Case Basis(ICB). For Services delivered On-Net HFC,frame sizes may not exceed 1518 MTU size(1522 with a single VLAN
tag).All frames that exceed specifications shall be dropped. For Off-Net Services,MTU may vary by third-party provider.
6. Customer Traffic Transparency.. All fields within customers Ethernet frames (unicast, multicast and broadcast,
except L2CP)from the first bit of payload are preserved and transparently transported over UNI to UNI, as long as they
are mapped into the EVC.
7. Ethernet Service Frame Disposition. Different types of Ethernet frames are processed differently by the Service.
Frames may pass unconditionally through the network or may be limited as in the case of broadcast, unknown unicast
and multicast frames to ensure acceptable service performance. Refer to Figure 7 for Comcast's service frame disposition
for each service frame type.
rUnicast
ce Frame T pe EPL Frame Deliver EVPL Frame Delive ENS Frame Delive
All frames delivered Frames delivered All frames delivered
unconditionally conditional) unconditional)
ast All frames delivered Frames delivered Frames delivered
unconditionally conditional) conditionally
Broadcast All frames delivered Frames delivered Frames delivered
Interstate-Ethernet Transport Services PSA ver.1.5
Attachment D(IV)
I
unconditionally conditionally conditionally
Figure 7:Service Frame Delivery Disposition
COMCAST ENTERPRISE SERVICES
PRODUCT-SPECIFIC ATTACHMENT
ETHERNET TRANSPORT SERVICES
SCHEDULE A-2
SERVICE LEVEL AGREEMENT
Ethernet Transport Version 1.5
Comcast's Ethernet Transport Services Is backed by the following Service Level Agreement("SLA"):
Definitions:
Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Ethernet Transport
Services PSA or the General Terms and Conditions.
"Planned Service Interruption" means any Service Interruption caused by planned work such as scheduled maintenance
or planned enhancements-or upgrades to the network.
"Service Interruption"means a complete loss of signal that renders the Service unusable.
Service Level Agreement (SLA)
Company's liability for any Service Interruption (individually or collectively, "Liability"), shall be limited to the amounts
set forth in the Tables below. For the purposes of calculating credit for any such Liability, the Liability period begins
when the Customer reports to Company an interruption in the portion of the Service, provided that the Liability is
reported by Customer during the duration of the Liability, and, a trouble ticket is opened;the Liability shall be deemed
resolved upon closing of the same trouble ticket or the termination of the interruption, if sooner, less any time Company
is awaiting additional information or premises testing from the Customer. In no event shall the total amount of credit
issued to Customer's account on a per-month basis exceed 50% of the total monthly recurring charge ("MRC")
associated with the impacted portion of the Service set forth in the Sales Order. Service Interruptions will not be
aggregated for purposes of determining credit allowances.To qualify, Customer must request the Credit from Comcast
within thirty (30) days of the interruption. Customer will not be entitled to any additional credits for Service
Interruptions. Comcast shall not be liable for any Liability caused by force majeure events, Planned Service Interruptions
or Customer actions,omission or equipment.
TABLE 1:SLA for On-Net Services provided over a fiber optic network(99.99%Availability)
Interstate Ethernet Transport Services PSA ver. 1.5 i
Attachment D(IV)
Length of Service Interruption: Amount of Credit:
Less than 4 minutes None
At least 4 minutes but less than 4 hours i%of Total NIRC
At least 4 hours but less than li]tours 10%of Total N1 RC
At least 6 hour,but less than 12 hours 20%of Total NIRC
At least 12 hours but less than 16 hours 30%of Tota_1M RC
At least 16 hours but less than 24 hours 40.of•rotal MRC
Al least 24 hours or Greater 50° of Total R•1ItC.
TABLE 2:SLA for On-Net Services provided over On-Net HFC(99.9%Availability)
Length of Service Interruption: Amount of Credit:
Less than 40 minutes None
At Ieast 40 minutes but less than 4 hours .5%of Tolol MRC
At least 4 hours but less than S hours 101.S of Total NIRC
At lensf 3 hours but less than 12 hours 2:0%of Total A4 RC
At least 12 hours but less than 16(tours 30%of Total NIRC
At least 16 hours but less than 24 hours 40/0 Of T061 N1 Rt
At least 24 hours or greater 50%of TomI NIRC.
TABLE 3:SLA for Off-Net Services (99.95%Availability)
Length of Service Interruptluu: Amount of Credit:
Las titan 20 minutes, Nona
At least 20 minutes but less duan 4 hours 5%of Total Ni RC
At least 4 hours but less than d hours 10%of Total NIRC
alt least$hours but less than 12 hours '204fl of Total NIRC
At least f 2'hours but less than 16 hours 309'fl of Tota]NIRC
AI least 16 hours but less than.24 hours 40%of Total NIRC
At least 24 hours or greater 50°A of Total NIRC
THE TOTAL CREDIT ALLOWANCES PER MONTH IS CAPPED AT 50% of THAT MONTH'S MRC FOR THE INTERRUPTED
PORTIONS OF SERVICE, SEPARATELY OCCURING SERVICE INTERRUPTIONS ARE NOTAGGREGATED FOR THE PURPOSES OF
DETERMINING CREDIT ALLOWANCES.
On-Net Service Monitoring,Technical Support and Maintenance
1. Network Monitoring. Comcast monitors On-Net Services on a 24x7x365 basis.
Interstate Ethernet Transport Services PSA ver. 1.5
Attachment D(IV)
2. Technical Support. Comcast provides a toll-free trouble reporting telephone number to the Enterprise Technical
Support(ETS)center that operates on a 24x7x365 basis. Comcast provides technical support for service related inquiries.
Technical support will not offer consulting or advice on issues relating to CPE or other equipment not provided by
Comcast.
a. Escalation. Reported troubles are escalated within the Comcast Business Services Network Operations
Center (BMOC) to meet the response/restoration interval described below (Response and Restoration
Standards). Service issues are escalated within the Comcast BNOC as follows: to a Supervisor at the end of
the applicable time interval plus one (1) hour; to a Manager at the end of the applicable time interval plus
two(2) hours,and to a Director atthe end of the applicable time interval plus four(4)hours.
b. Maintenance. Comcast's standard maintenance window for On-Net Services is Sunday to Saturday from
12:00am to 6:00am local time. Scheduled maintenance for On-Net Services is performed during the
maintenance window and will be coordinated between Comcast and the Customer. Comcast provides a
minimum forty eight(48) hour notice for non-service impacting maintenance. Comcast provides a minimum
of seven (7) days' notice for On-Net Service impacting planned maintenance. Emergency maintenance is
performed as needed without advance notice to Customer. Maintenance for Off-Net Services shall be
performed in accordance with the applicable third party service provider rules. Therefore, Off-Net Service
may be performed without advance notice to Customer.
3. Comcast provides certain Comcast Equipment for provisioning its services and the delivery of the UNI,which will
reside on the Customer-side of the Demarcation Point. Comcast will retain ownership and management responsibility
for this Comcast Equipment.This Comcast Equipment must only be used for delivering Services. Customers are required
to shape their egress traffic to the Committed Information Rate ("CIR") identified in the Sales Order. Comcast will be
excused from paying SLA credits if the Service Interruption is the result of Customer's failure to shape their traffic to the
contracted CIR or utilizing Comcast Equipment for non-Comcast provided services.
Performance Standards
"Performance Standards" are set forth in Schedule A-1 to the Product-Specific Attachment for Ethernet Service.
Response and Restoration Standards
Comcast has the following response and restoration objectives:
CATECdORY TIME INTERVAL 41EASUREh'IENT REMEDIES
Mean Tiene to Respond iS minutes Averaged Over A Month Escalation
Telephonically to call (see above)
,4fean Time to Resrorc.On-`et 4 hours Averaged Over A Month Escalation
Comcast Equipment (see above)
Mean T hne to Restore Ofr-N.t G hours Averaged Over A Month r8calation
-Equipment (see above)
tfean Thne to Restore On-Net 6 hours averaged Over A Month Escalation
Services see above)
Merat Time to Restore Off-Net 9 hours Averaged Over A Month Escalation
Services see above
Interstate Ethernet Transport Services PSA ver. 1.5
Attachment D(IV)
Customer shall bear any expense incurred, e.g., dispatch/labor costs, where a Service Interruption is found to be the
fault of Customer,its end users, agents, representatives or third-party suppliers.
Emergency Blocking
The parties agree that if either party hereto, in its reasonable sole discretion, determines that an emergency action is
necessary to protect its own network, the party may, after engaging in reasonable and good faith efforts to notify the
other party of the need to block, block any transmission path over its network by the other party where transmissions
do not meet material standard industry requirements.The parties further agree that none of their respective obligations
to one another under the Agreement will be affected by any such blockage except that the party affected by such
blockage will be relieved of all obligations to make payments forcharges relatingto the circuit(s)which is so blocked and
that no party will have any obligation to the other partyfor any claim,judgment or liability resulting from such blockage.
Remedy Processes
All claims and rights arising under this Service Level Agreement must be exercised by Customer in writing within thirty
(30) days of the event that gave rise to the claim or right, The Customer must submit the following information to the
Customer's Comcast account representative with any and all claims for credit allowances: (a) Organization name; (b)
Customer account number; and (c) basis of credit allowance claim (including date and time, if applicable). Comcast will
acknowledge and review all claims promptly and will inform the Customer by electronic mail or other correspondence
whether a credit allowance will be issued or the claim rejected,with the reasons specified for the rejection.
Exceptions to Credit Allowances
A Service Interruption shall not qualify for the remedies set forth herein if such Service Interruption is related to,
associated with,or caused by:scheduled maintenance events;Customer actions or inactions;Customer-provided power
or equipment; any third party not contracted through Comcast, including, without limitation, Customer's users, third-.
party network providers, any power, equipment or services provided by third parties; or an event of force majeure as
defined in the Agreement.
Other Limitations
The remedies setforth in this Service Level Agreement shall be Customer's sole and exclusive remedies for any Service
Interruption,outage, unavailability,delay,or other degradation,or any Comcast failure to meet the service objectives.
Interstate Ethernet Transport Services PSA ver. 1.5
Attachment D(IV)
COMCAST ENTERPRISE SERVICES
PRODUCT-SPECIFIC ATTACHMENT
ETHERNET TRANSPORT SERVICES
Attachment A-1.1
PERFORMANCE OBJECTIVES
COMCAST ETHERNET TRANSPORT SERVICES
Ethernet Transport Version 1.5
Comcast Ethernet Transport Services are available both within and between major metropolitan areas throughout the
United States. The performance objectives associated with traffic flows between any two customer sites are dependent
upon the locations of respective A and Z sites.
Access Tvpes
1. On-Net Access. If On-Net A and Z sites reside within the same Market, Performance Tier 1 objectives will apply.
If the sites are in different markets, another Performance Tier will apply. Applicable Performance Tier will appear
on/with respective Comcast Sales Order Form.
2. Off-Net Access. In addition to On-Net Access,Comcast enables Off-Net Access to Ethernet Transport Services via
multiple third party providers. The Performance Tier for Off-Net Access is based upon the location of the Off-Net site,
the location of the Network to Network Interface (NNI) between Comcast and the third party provider and the
performance commitment from the third party provider. Comcast will specify applicable Performance Tier on the
Comcast Sales Order Form for applicable Off-Net site.Standard Off-Net Access will have an assigned home market and
will include the same performance metrics associated with On-Net connectivity within the respective market and
between markets. Extended Off-Net Access provides customer with network connectivity, but at a higher performance
Tier. Applicable Performance Tier will appear on/with respective Comcast Sales Order Form.
Performance Tiers
1. Performance Measurement
Comcast collects continuous in-band performance measurements for its Ethernet Transport Services. All latency,Jitter
and Packet Loss Performance Metrics are based upon sample one-way measurements taken during a calendar month.
2. Performance Tier 1(PT1)Objectives—Within Market
Performance Metric Class of Service(CoS)
Basic Priority _Premium
a e e -oelay *i4-�. .i 45ms 23ms 12ms
J�#er,�NetwoJC,Defa ,Variat(on) 20ms 10ms 2ms
<0.01% <0.001%
Interstate Ethernet Transport Services PSA ver. 1.5
Attachment D(IV)
3. Performance Tier 2(PT2)Objectives
Performance Metric Class of Service(Cos)
Basic Priority Premium
Latency(Network Delay) 80ms 45ms 23ms
Jitter(Network Delay,yaCitjoi) 25ms 15ms 5ms
Packet Loss <1% <02% <.01%
4. Performance Tier 3(PT3)Objectives
Class of Service(Cos)
Performance Metric
f3asic Priority Premium_
Latency(Network Delay) 100ms 80ms 45ms
Jitter(Network Delay Variation) 30ms —Tom—5 10ms
Packet Loss
5. Performance Tier 4(PT4) Objectives
Performance Metric Class of Service(Cos)
[3asic Priority Premium
a wor_fDela 120ms 100ms 80ms
Jitter'(Nefwork Delay Va`riatiori) 35ms 25ms 15ms
Packet Loss <1% <.05% <.04%
Interstate Ethernet Transport Services PSA ver. 1.5
(COMCAST LETTERHEAD)
SIDE LETTER MACC RENEWAL
July 1, 2015
Metropolitan Area Communications Commission
15201 NW Greenbrier Parkway, C-1
Beaverton, OR 97006
Dear
The purpose of this letter agreement is to set forth commitments between Comcast of
Oregon II, Inc. ( "Comcast'l and the communities participating in the Metropolitan Area
Communications Commission ("Commission") that are in addition to the obligations
contained in the Cable Television Franchise Agreement between Comcast and the
Commission to take effect on July 1, 2015 (hereinafter the "Franchise'). These items
set forth herein: 1) have been negotiated in good faith and mutually agreed to by the
parties as part of the informal franchise renewal process pursuant to 47 U.S.C. 546(h);
2) are provided by Comcast in consideration of the grant of the Franchise by the
Commission; and 3) specifically relate to unique community needs that exist in the
communities participating in the Commission.
CAN and PCC If Comcast discontinues carriage of CAN channel 27 or PCC channel 11
on all of Comcast's cable systems located in the Portland Oregon Designated Market
Area, Comcast may also discontinue carriage of these channels on the cable system in
the Franchise Area, as the term Franchise Area is defined in the Franchise.
PEG Capital Funds Under Section 13 of the Franchise, Comcast is required to provide
support for the capital requirements for PEG access and the institutional network
activities of the Commission and its member communities under Section 12 of the
Franchise. These activities under the prior franchise included uses of the Public
Communications Network ("PCN') by certain identified communities. Without
determining whether these uses constitute "capital"or"operating"expenditures for
Franchise compliance purposes, and subject to the indemnity provisions of the,
Franchise, Comcast agrees to not-pursue any action against the Commission or its
member communities asserting that Commission expenditures for these identified uses
violate Sections 13.1 and 13.3 of the Franchise to the extent such-uses are consistent
with Commission and individual community practices as of the effective date of the
Franchise.
MOU Superseded Comcast and the Commission entered into a Memorandum of
Understanding dated February 12, 2003 ("MOU') that sets forth additional terms and
condition for the PCN, including the provision, without cost, of certain fiber optic links.
Because the PCN has been replaced with a Managed Service Agreement ("MSA' under
Section 12 of the Franchise, Comcast and the Commission agree that the Franchise
supersedes the terms and conditions of the MOU and that the parties' rights and
obligations under the MOU will end on the effective date of the Franchise.
Fiber Links Comcast agrees to continue providing the current two (2) fiber optic links
to and from the Lake Oswego/MACC ISP (which ends at the Tigard Hub — 15245 SW
74th Avenue, Tigard, OR 97224) and the HIC/MACC ISP (which ends at the Beaverton
Headend — 1750 NW 173rd Avenue, Beaverton, OR 97006) without charge for the term
of the Franchise. For purposes of this section only, the term "without charge" also
means that Comcast shall not offset, deduct or otherwise credit against any past,
present or future franchise fee payments payable under the Franchise its costs in
providing the two (2) fiber optic links described above. The Commission will pay for the
remaining six (6) fiber optic links previously provided by Comcast under the MOU at the
rates and according to the terms set forth in the MSA, which cost shall be equal to the
Rate Card in Exhibit A to Attachment D of the Franchise and shall not exceed $40,000
annually if these fibers are contracted for a five (5) year term for such links. If fewer
than six (6) fiber links are required to interconnect due to design changes, the
Commissions'costs shall be reduced accordingly. In accordance with the terms of the
previous paragraph on PEG capital funds, and subject to the indemnity provisions of the
Franchise, Comcast will not pursue any action against the Commission or its member
communities if PEG capital funds are used to pay for these fiber optic links.
The terms and conditions of this letter agreement are binding upon the Commission and
its member communities and Comcast and their successors and assigns. Enforcement
of the terms of this letter agreement shall be consistent with the enforcement
procedures set forth in the Franchise.
COMC OF OREGON II, INC.
By: (�
Its: 1�
Acknowledged and agreed to this LAtclay of flhia 6,V 2015.
METROPOLITAN AREA COMMUNICATIONS COMMISSION
By
Its: / ,.bu►�v�1�j ,
28573430
CITY OF TIGARD, OREGON
TIGARD CITY COUNCIL
ORDINANCE NO. 15- 11
AN ORDINANCE OF THE CITY OF TIGARD GRANTING A NON-EXCLUSIVE CABLE
FRANCHISE TO COMCAST OF OREGON II,INC.
WHEREAS,in 1980 the Metropolitan Area Communications Commission (hereinafter"MACC")
was formed by Intergovernmental Cooperation Agreement,amended in 2002 and now an
Intergovernmental Agreement(hereinafter"IGA") to enable its member jurisdictions to work
cooperatively and jointly on communications issues,in particular the joint franchising of cable
services and the common administration and regulation of such franchises,and the City of
Rivergrove(hereinafter"City")is a member of MACC;
WHEREAS,the IGA authorizes MACC and its member jurisdictions to grant one or more
nonexclusive franchises for the construction,operation and maintenance of a cable service system
within the combined boundaries of the member jurisdictions;
WHEREAS,the IGA requires that each member jurisdiction to be served by the proposed
franchisee must approve any cable service franchise;
WHEREAS,the City has previously granted a cable franchise to TCI Cablevision of Tualatin Valley,
Inc.and that franchise is now held by Comcast of Tualatin Valley,the grantee's lawful successor in
interest;
WHEREAS,the Board of Commissioners of MACC,by Resolution 2015-05 adopted on the 10th
day of June,2015,recommended that the member jurisdictions grant a franchise to Comcast of
Oregon II,Inc.in the form attached hereto as Exhibit"A,"which authorizes the provision of cable
services from July 1,2015 through June 30,2025;
WHEREAS,MACC provided adequate notice and opportunities for public comment on the
proposed cable services franchise including public hearings on March 18,2015 and June 10,2015;
WHEREAS,the Council finds that approval of the recommended franchise is in the best interest of
the City and its citizens,consistent with applicable federal law;
NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS:
SECTION 1: There is hereby granted to Comcast of Oregon II,Inc. a non-exclusive cable
services franchise on the terms and conditions contained in Exhibit"A".
SECTION 2: The grant of franchise at Section 1 is conditioned upon each of the following
events:
ORDINANCE No.15-'
Page 1
(a)The affirmative vote of the governing body of each MACC member
jurisdiction;
(b) Comcast of Oregon II,Inc.'s fulfillment of the franchise acceptance
provisions contained in the Franchise;and
(c)Formal written determination by the MACC Administrator that,in
accordance with the requirements of the IGA,each of the above two events
has occurred.
SECTION 3: This ordinance shall be effective 30 days after its passage by the council,
signature by the mayor,and posting by the city recorder.
PASSED: By 16 f n/f7 4(-f vote of all council meWbers present after being read by
number and title only,this 1 Vlllay of ,2015.
Carol A.Krager,City Recorder
h
APPROVED: By Tigard City Council this 1 y�d of ,2015.
John L. ok,Mayor
Approved as to form:
%/,�' A—
City Attom
711q1 ) -5
Date
ORDINANCE No. 15-1
Page 2
METROPO[ITAN AREA
MACC COMMUNICATIONS COMMISSION
REPRESENTING:BANKS,BEAVERTON,CORNELIUS,DURHAM,FOREST GROVE,GASTON,HILLSBORO,KING CITY,LAKE OSWEGO,MILWAUKIE,NORTH PLAINS,RIVERGROVE,TIGARD,TUALATIN AND WASHINGTON COUNTY
CANE TV FRAU hiSE REgUTATION • TEiECOMMI,NICAIIOVS AdvlcE AN'd SL PPOR1 • Pdb( COMML\ICAT101'S NE IWORI< (PCN) • TLAIATi'1 VAIIE}'COMMUNily TV
November 23, 2015
Cathy Wheatley;Cityftecurder- No 17 kmCity of Tigard
13125 SW Hall Blvd.
Tigard, Oregon 97223-8199
Dear Cathy,
The Comcast Cable Television Franchise has finally been completed. Thanks very much to you
and your City Council for the support of MACC in the negotiation process over the last several
years.
A copy of the Franchise is attached for your records, along with a copy of the City's adoption
Ordinance. This franchise is valid from July 1, 2015 through June 30, 2025.
Please contact me if you have any questions, and thanks again for your help.
Sincerely,
red Christ, Administrator
Metropolitan Area Communications Commission
Copy(w/o Franchise): Mayor John Cook
City Manager Marty Wine
MACC Commissioners Marc Woodard and Louis Sears
15201 NVV Greenbrier Parkway,Ste-C-1 - Beaverton,Oregon 97006 - Phone(503)645-7365 - FAX(503)645-0999 - Web Site:www.maccor.org
SER\wci OUR COMML 1iTiES SiNct- 1980