MACC (Various) - Cable Communications INTERGOVERNMENTAL AGREEMENT
METROPOLITAN AREA COMMUNICATIONS COMMISSION
THIS AGREEMENT is made and entered into as of the below set forth date by and among the
undersigned cities of Banks,Beaverton,Cornelius,Durham,Forest Grove,Gaston,Hillsboro,King City,
Lake Oswego,North Plains,Rivergrove,Tigard,and Tualatin,all municipal corporations of the State of
Oregon,and Washington County,a county formed under the laws of the State of Oregon,(all parties
hereafter referred to as"member jurisdictions"). This Agreement is made pursuant,to ORS 190.003 to
ORS 190.110,the general laws and constitution of the State of Oregon,and the laws and charters of the
member units of local government.
Recitals:
• The Metropolitan Area Communications Commission(hereinafter,"MACC")was formed in April
1980 to provide a common means for area local governments to jointly franchise for cable television
services. The original member jurisdictions were:Banks,Beaverton,Cornelius,Forest Grove,
Hillsboro,King City,Lake Oswego,Milwaukie, Sherwood,Tigard,Tualatin,and Washington
County.
• In 1981,Durham joined MACC,and Milwaukie left to pursue franchising separately. Since 1981,
the cities of Rivergrove(1983),North Plains(1984),Gaston(1989),and Wilsonville(1984)joined
MACC. Sherwood and Wilsonville withdrew in 1999.
• In February 1981,the Commission issued a Request for Proposals seeking offers from cable
television companies to jointly serve the member jurisdictions.
• In February 1982, Storer-Metro Communications was granted a franchise to serve the member
jurisdictions.
• Between 1980 and 1999 a number of amendments were made to the original Intergovernmental
Agreement to reflect the increased responsibilities of the Commission and other changes in the
organization.
• In 1985,ownership of the franchise was transferred from Storer-Metro to Willamette Cable TV.
Since then,the ownership and/or control of the franchise has been transferred twice, from
Willamette to Columbia International in 1988,and to TCI Cablevision of Oregon in 1995. Control
of TCI was transferred to AT&T Corp. in 1999. The franchise was renewed on February 1, 1999.
• In June 2000,the Commission appointed a Governance Committee to review the original
Intergovernmental Agreement(as amended)and to recommend revisions.
• AT&T Corp.received consent from MACC to merge with Comcast to form a new parent of TCI,
AT&T Comcast Corporation.
• On September 13,2002,the Commission recommended that its member jurisdictions approve the
new Intergovernmental Agreement as contained herein.
Section 1. General Purposes of Agreement. To ratify the formation of MACC in 1980,to recognize its
continuous existence as a joint commission of representatives from member jurisdictions,
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and to restate the original Agreement,pursuant to the authority set forth in ORS 190.003
through ORS 190.110 as well as local charters,ordinances and applicable laws. This
Agreement is designed to fulfill the following objectives:
Pool the strengths of member jurisdictions in franchising communications and information
services to best serve the public interest and make best use of the limited Public Rights of
Way.
A. Serve the public interest by encouraging competition in all areas of communications and
information service technologies.
C. Represent the views of consumers of communications services and advocate for the
highest quality customer services.
D. Provide for negotiation,administration,and regulation of communications and
information services franchises and agreements for the member jurisdictions on a
common,or individual,jurisdictional basis.
E.Provide a coordinated and uniform response in working with the communications
industry on franchise negotiation and administration.
F. Speak as"one voice"to represent its members on issues of communications and
information services.
G. Provide a common forum for the joint study and discussion of communications issues
and problems,and to develop practical solutions and alternatives.
H. Provide an organization that remains flexible to meet the challenges of the changing
communications and information services environment.
Section 2. Definitions.
Commission.The Board of Commissioners serving as the governing body of MACC.
Communication and Information Services.Cable television,telephony,broadband,
including video,voice,or data transported between fixed points using facilities housed on,
under,or over Public Rights of Way and other public property regardless of the technology
employed.
Designated Access Provider. An entity selected by the Commission to provide Public,
Education,or Governmental(PEG)Access services.
Franchise. A non-exclusive and revocable agreement for the construction and operation of
a communication system using the Public Rights of Way. MACC is authorized to
administer these agreements on behalf of its members.
Franchise Fee Revenue. Fees and costs or other fair and reasonable compensation charged
for use of the Public Rights of Way,separate from,and in addition to,any and all federal,
state, local,or member jurisdiction charges as may be levied,imposed,or due from a
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communications or information service provider, its customers or subscribers,or on account
of the lease, sale,delivery,or transmission of such services.
Grantee. The person to which a franchise is granted by member jurisdiction(s).
MACC. The organization,commissioners,officers,employees,and agents of the
Metropolitan.Area Communications Commission.
PEG Access. Public,Educational,and Governmental Access,collectively,for
noncommercial use by institutions,organizations, groups and individuals in the MACC
franchise community to acquire,create,receive,and distribute information via
communications facilities.
Person. An individual,corporation,company, association,joint stock company or
association,firm,partnership,or limited liability company authorized to do business in the
State of Oregon.
Personal Services. Work to be performed by a provider or providers to fulfill MACC
operational and business needs and objectives.
Public Rights of Way. Includes,but is not limited to,streets,roads,highways,bridges,
alleys, sidewalks,trails,paths,public easements,public utility easements,including the
subsurface under and air space over these areas,but does not include parks or parkland.
This definition.applies.only to the extent of the local government's right,title,interest, or
authority to grant a franchise to occupy and use such areas for communications facilities.
Section 3. Commission Creation and Powers. MACC is hereby created as a joint commission to
carry out the specific purposes set forth in this Agreement. In carrying out the purposes of
this Agreement,the Commission is vested with all the powers,rights,and duties relating to
those functions and activities that are vested by law in each separate unit of local
government, its officers and agencies, subject to specific limitations,if any,contained in
this Agreement. "Law" as referred to in this section shall mean and include,federal laws
and Constitution, Oregon laws and Constitution,as well as the charters, ordinances,and
other regulations of each unit of local government. The Commission shall establish a set of
Bylaws that will govern its operations.
Section 4. Governance,Voting,and Meetings
A. The Governing Body. A Board of Commissioners shall govern MACC. Each member
jurisdiction shall select one representative to serve as its Commissioner.In addition,
member jurisdictions are encouraged to appoint one alternative representative who may
attend all meetings and act in the absence of the primary representative. Each member
jurisdiction shall have one vote on any decision made by the Commission.
B Meetings and Voting. Commission meetings+shall be conducted pursuant to the Oregon
Public Meetings Law(ORS 192.610-192.710). Requirements for Commission
meetings,quorums,and voting are contained in the Bylaws.
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C. Term of Office and Succession. Commission members shall be appointed to serve until
their successors are appointed and assume their responsibilities,but shall serve at the
pleasure of the governing body of the member jurisdiction appointing them. Member
jurisdictions are responsible for filling their Commissioner positions. Officers of the
Commission shall be specified in the Bylaws.
D. Actions Requiring Unanimous Consent of All Member Jurisdictions. The following
actions require the unanimous consent of all member jurisdictions:
1) Amendments to this Agreement;
2) Adding new member jurisdictions to MACC;
3)Withdrawal of a member jurisdiction from MACC;
4)Abolishing MACC as an organization.
E. Actions Requiring the Unanimous Consent of Affected Member Jurisdictions. Some
decisions of the.Commission will not affect all members. The following actions require
the unanimous consent of affected member jurisdictions:
1) Granting,amending,renewing,or transferring franchises of affected member
jurisdictions;
2) Allocation of franchise fee revenues in accordance with Exhibits.
F. In addition to other limitations that may be contained in this Agreement,no decision
concerning the below listed or like subjects shall be made by the Board,unless a
quorum is present, and a majority of those present and voting agree on a matter
before it:
1) Any decision creating a monetary expense to a member jurisdiction;
2) Any decision that would lead to the selection of a person to provide,by franchise
or otherwise, an information or communication system for a particular member
jurisdiction;
3) Any decision that would provide a method for apportioning any revenues received
by the Commission among the member jurisdictions of the Agreement; and
4) Any decision concerning the adoption or supplementation of a budget.
G. All other actions of the Commission and not specified herein are governed by the
Bylaws,to the extent applicable.
Section 5. Financial Responsibilities.
A. The Commission shall comply with applicable Oregon state and local laws as to budget
preparation,expenditures and audit.of its.books and records. All books and records shall
be open to inspection by any member unit of local government or its designate. The
public will have access to these records in accordance with the Oregon Public Records
Law(ORS 192.005 to 192.170).
B. The Commission has the discretion to establish purchasing rules,personnel policies,and
administrative procedures,in addition to the Bylaws,to conduct MACC's daily
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business. This includes the ability to contract for services,sign leases, sign other
agreements,and employ professional staff.
C. Allocation of franchise fee revenues shall be in accordance with Exhibits.
Section 6. Duration of Agreement Membership Contracts for Services Withdrawal,and Termination.
A. Duration. The duration of this Agreement is perpetual and the Commission shall
continue from year to year,subject to Subsection E.
B. New Membership. The Commission may consider requests from jurisdictions to
become members of MACC. An affirmative recommendation from the Commission
and unanimous consent of all member jurisdictions is required.
The Commission will consider the following criteria in evaluating a request for MACC
membership:
1) Common service provider;
2) Similarity of franchise agreement;
3) Geographic proximity to current members;
4) Level of services requested;
5) Current members should not incur any.costs and there should be full cost recovery;
6) Potential benefits of new member to MACC;and
7) Willingness to support PEG Access allocation as required by a franchise.
C. Contracts for Services. The Commission may also consider requests from jurisdictions
to contract with MACC for services.
The Commission will consider the following criteria in evaluating whether to approve.a
request for a MACC service contract:
1)Common service provider;
2) Similarity of franchise agreement;
3) Geographic proximity to current members;
4) Level of services requested;
5) Current members should not incur any costs and there should be full cost recovery;
and
6) Potential benefits of contracting jurisdiction to MACC.
D. Withdrawal from Membership. Member jurisdictions may not withdraw from
membership in MACC without the unanimous consent of the remaining members,per
Section 4.D. The Commission will require member jurisdictions wishing to withdraw
from membership to provide a minimum of one hundred and eighty(1,80)days written
notice to the Commission. Such notice will state the reasons for requested withdrawal
and the date requested for the withdrawal to become effective.Withdrawals without
consent may subject the withdrawing member to civil penalties,and other remedies,
from the Commission and the remaining members.
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Generally,the Commission will not consent to withdrawals occurring,during the
following periods:
1) During the last eighteen(18)month period of any common franchise agreement to
which they are a party;
2) Within the first eighteen(18)month period following the renewal of any common
franchise agreement to which they are a party.
Any net cash due and owing to the withdrawing member shall be paid within thirty(30)
days of the effective date of the withdrawal. Net cash is defined as the pro-rata share of
franchise fee revenues accrued,or which have accrued,as of the effective date of the
withdrawal,minus the present value of any MACC capital asset(s)held on the premises
of and proposed to be retained by the withdrawing member(e.g.built-in television
equipment funded by MACC grant). MACC capital assets,other than those held on the
premises of the withdrawing jurisdiction,and which are owned and/or directly used for
MACC operations,are excluded from consideration for this calculation. In applying this
provision,the Commission shall consider the value of the capital asset(s)held by the
jurisdiction compared to the amount due to the jurisdiction for settlement before
approval of the withdrawal.
E. Termination of Commission. The Commission may be terminated by mutual agreement
of all of the parties,subject to contractual obligations in existence at said time. As part
of this process,the Commission shall divide MACC's remaining prorated funds and
assets among the remaining parties after payment of all debts.
Section 7. General Terms.
A. Severability. The terms of this Agreement are severable and a determination by an
appropriate body having jurisdiction over the subject matter of this.Agreement that
results in the invalidity of any part shall not affect the remainder of the Agreement.
B. Interpretation. The terms and provisions of this Agreement shall be liberally construed
in accordance with the general purposes of this Agreement.
C. Effective Date.This Agreement shall become effective upon acceptance by all the
MACC member jurisdictions of this Agreement.
D. Amendments. Amendments to this Agreement will be recommended by the
Commission to member jurisdictions in accordance with the provisions of Section 4,
subsection D. These.shall become effective upon approval of member jurisdictions,as
certified by the Commission or MACC.
E. Effect of this A ear ement. Thisl 2002 Agreement ratifies the April, 1980,Agreement by
which MACC was formed',and recognizes MACC'scontinuous existence since its
formation. It replaces and supersedes the 1980 Agreement and all prior amendments
and addenda thereto.The separate Agreement between MACC and Washington County
dated October 1, 1996,as amended,remains in effect and is not affected by this
Agreement.
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ATTEST
Effective on the date shown below,based on signatures by the appropriate officers duly authorized to
execute this Agreement on behalf of each governing body of the named jurigiGtiQns of local
government.
Bruce Crest,Administrator
Date of Original Agreement: April, 1980
Date of This Agreement: February 13,2003 (after approval by all member jurisdictions)
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Exhibit A—TCI(AT&T Comcast)Franchise Fee Allocation
This Exhibit affects the Franchise Fee revenues from the Franchise with TCI,whose parent is AT&T
Comcast),or its successors.
These franchise fees are attributable to member jurisdictions. Member jurisdictions hereby make
and continue allocations of these,or other,revenues for the operation of MACC for franchise
administration and regulation,and for PEG Access. These allocations, specified below,cannot be
increased without the unanimous consent of all member jurisdictions.
1. Allocation of Franchise Fee Revenues for MACC Administration
a.Member jurisdictions will contribute a maximum allocation of twenty percent(201/o)of
franchise fee revenues collected for support of MACC administration. The Commission may
decide to receive less than this allocation for these purposes.
b.The Commission is authorized,as it deems appropriate, to enter into professional services
contracts to review the Grantee's financial reports,on an annual basis or otherwise. In the event
that such a review results in increased franchise payments from the Grantee,the first deduction
from such payments shall be for the reimbursement of the Commission's expenses incurred
under the contract for the review. The remainder of such increase shall be distributed in
accordance with the most recent quarterly distribution.
2. Allocation of Franchise Fee Revenues for PEG Access
The Commission recommends that member jurisdictions contribute a minimum allocation of
fifteen percent(15%)to MACC for the support of PEG Access.
Franchise fee allocations of affected member jurisdictions shall automatically renew for three-
year periods on July 1,2002,2005,2008,and2011. However,if a jurisdiction gives written
notice to MACC of their decision to reduce their PEG Access support below the minimum
recommended allocation prior to the first day of January preceding the end of any of these three-
year periods,the renewal of contributions from all members shall be suspended until such time
as the Commission can review the matter and make a recommendation to the governing bodies
of the member jurisdictions. If no member jurisdiction gives this notice,no action is required,
and the allocations automatically renew.
Notwithstanding this allocation commitment,the appropriation of funds is subject to the annual
process required of each jurisdiction pursuant to local budget law.
If a jurisdiction reduces its allocation commitment to a level below the recommended minimum,
the Commission may place restrictions on the PEG Access services provided to the jurisdiction
and/or its citizens.
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METROPOLITAN AREA
MACC COMMUNICATIONS COMMISSION
REPRESENTING JH E:COMMUNITIES OF BANKS, • . O OUNTY
CARE TV FRANCI-0SE REGULATION • TEIECOMMUNICATIONS AdVICE ANd SUppoRr • PUbIiC COMMUNICATIONS NETWORK(PCN)
RECE/V&®C
FEB C.7.
MACC Jurisdiction Managers/Recorders: 1 8 2003
Aan7inivtr�ti®
The revised MACC Intergovernmental Agreement (IGA) has been n
approved by all member jurisdictions effective as of February 13, 2003.
We have enclosed a copy of the new IGA for your records, with my
attestment to that fact.
Thank you for your assistance in the MACC IGA approval process.
Please contact me if you have any questions.
Bruce Crest
Administrator
4 5.o999 w Web,Si te.wWwimacco .rg
PROVidh(j SI-IMCr_SiNCr 19$0
INTERGOVERNMENTAL COOPERATION ACREEbIENT
METROPOLITAN AREA COMMUNICATIONS COMMISSION
THIS AGREEMENT, made and entered into .the below set forth date
by and among the undersigned cities of Beaverton. Tigard, Troutdale,
Ring City, Milwaukie, Hillsboro, Lake Oswego, Gresham, Tualatin,
Banks, Forest Grove, Durham and Cornelius, all municipal
corporations of the State of. Oregon and Washington County, a county
formed under the laws of the State of Oregon, (all parties hereafer
referred to as "unit (s) of local government" or "Party (les) ") .
This Agreement is made pursuant to ORS 190.003 to ORS 190.110 , the
general laws and constitution of the State of Oregon, and the laws
and charters of the units of local government.
section 1. General Purposes of Agreement. To form, ' pursuant
to the authority set forth in ORS 190.003 through ORS 190. 110 as
.well as ' local charters and ordinances, a joint commission,
corsisti.ng of representatives from certain units of local
government to carry out the following purposes:
A. To provide a common means of addressing requests from
cable television companies to provide cable television to the
jurisdictions of the various parties;
B. To. provide for the parties or, if a particular unit of
local government prefers, assist a party in providing a Cable
Communications System that best serves the public interest and
provides the maximum level of services to the public in the most
efficient Branner ;
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AGREEMENT
C. To provide an organization to study the alternatives for
providing a Cable Communications System, to take specific action,
or recommend to the individual aovernir_g bodies of the units of
local government, a method for proceeding with the. provision of
such. services as well. as a method for providing ongoing regulation
of communications activity.
D. To provide, a forum for intercommunication and consulta-
tion among the , parties and to provide an opportunity for a joint
and cooperative sharing of the expenses, data, expertise,
experiences, and plans of each unit of local government; and
E. To work towards development of a uniform approach for
providing a Cable Communications System and, if feasible for and
agreeable to some or all of the parties, take joint or common
action to provide the appropriate level of communications services
to the citizens of the various jurisdictions.
Section 2. Definitions Applicable to this Agreement.
A. "Cable Communications System" or "System" means a system
of antennae, cables, amplifiers, towers, microwave. links, cable
casting studios, and any other conductors, receivers, home
terminals; convertors, equipment or facilities, designed and
contructed for the purpose. of producing, receiving, ampli fyi.ng,
storing, processing or distributing audio, - video, digital or other
forms of electronic or electrical signals.
B. "Person" means any corporation, partnershIp',
proprietorship, association, individual. or organization authorized
to do business in the State of -Oregon, or any natural person.
Section 3. Commission Creation and Powers. There is .hereby .
AGREEMENT - page 2
created a Joint Commission, to be known as the "Metropolitan. Area
Commun .cati.ons Commission" hereafter referred to - as the
"Commission" to carry out the. specific purposes set forth in this
agreement. In carrying out the purposes of this Agreement, the
Commission is vested with all, the powers, rights and -duties
relating to those functions and activities that are vested by law
in each separate unit of local government, its officers and
agencies, subject - to specific limitations, if any, contained in
this Agreement. "Law" as refered to in this section shall mean and
include, the federal laws and Constitution, the applicable general
laws of the State, the Oregon Constitution, as well as the
charters, ordinances and other regulations of each unit of local
government.
Section 4. The Board of Commissioners.
A. The Governing Body. The governing body .of the Commission
shall be its Board of Commissioners (hereafter referred to as the
"Board") . Each unit of local government shall . select one
representative, and may select one alternative representative who
may attend all meetings and shall act in the absence of the primary
representative, to serve as its Commissioner on the Board. Each
unit of local government shall have one vote on any decision made
by the Board.
B. Quorum and Voting. Except as expressly provided below,
scheduled . meetings or work sessions may be conducted by the Board
without the requirement of a quorum and decisions on routine
procedural matters may be made by a vote of a majority, of those
members of the Board present .-and voting on a matter before it. This
AGREEMENT - page 3
is intended to facilitate review and work in meeting the purposes
of this Agreement by proceeding without unreasonable delay, but it
shall not be applicable to meetings where substantive
deci.s .onmaking is necessary. In addition to other limitations'`that
may be 'contained in ili!s Agreement, 'no decision concerning the
. below listed or like subjects shall be mace by the Board, - unless a
quorum is pre:sent, which .shall consist of a majority of the entire
Board, and a majority of those present and voting agree on a matter
before `it:
1. Any decision creating a monetary expense to a unit
of local government;.
2. Any decision which would lead to or have the effect
of determining the manner in which a unit of local government will
provide a System for its jurisdiction;
3. Any decision which would .lead to or have the effect
of selecting a person or persons who would provide, by franchise or
otherwise, a -System or Systems for. a particular unit of local
government;
4. Any decision' which would provide a method for
apportioning any revenues received ' by the Commission among the
parties to this Agreement;
S. Any decision on agreements or contracts for personal:
services or the purchase of materials for the Commission;
6: Any decision concerning ' the adoption or supple
mentation of abudget, or an appropriation or an expenditure
pursuant thereto; and
7 . Any decision which a member of the 'Board- present and
AGRMIENT - page 4
voting at a meeting desires to have deferred and voted upon when a
quorum is present..
C. Term of office and Succession. Members of the Board
shall be appointed to serve until their successors are appointed
and assume their responsibilities, but shall serve at the pleasure
of the governing body of the unit of local government appointing
them. A vacancy on the Board shall be filled by the governing body
of the unit of local government whose position on the Board Is
vacant.
D. Ratification of Request for Proposal. If and when the
Board has developed a Request for Proposal document (hereafter RFP)
to be used to solicit competitive bids from anv person (s)
interested in obtaining a franchise to provide a System . for the
parties, it shall forward a copy of the RFP to the governing body of
each member unit of local government for their ratification and
further action. Those parties desiring to proceed pursuant to this
Agreement with joint or common action to provide a System for the
citizens of the various jurisdictions hereby agree, and shall so
state in the document ratifying the RFP, to be jointly bound and
contractually committed to the other parties . and any person
successfully bidding for the award of a franchise. If one or more
parties to this Agreement hereafter fails or refuses to be bound by
the actions of the Board or takes any action which constitute an
actual or implied attempt . to rescind or breach this Agreement, a
majority of the members of the Board, excluding the member (s)
representing the unit (s) of local government which have or may have
breached this Agreement, may decide to bring .a civil action in the
AGREEMENT - page 5
appropriate court, to seek redress, including, but not limited to,
specific performance of the Agreement or injunctive relief.
Section 5 . Meetings, Bylaws and Officers.
A. Meetings of the Board shall be conducted' pursuant to the
Oregon Public Meetings Law.
B. .: Bylaws . At.. the organizational meeting, or as soon.
thereafter as' it reasonably may be done, the Board shall adopt
bylaws governing its procedures and including at a minimum, the
following:
1) Whether regular meetings w3.11 'be- held and if so, the.
frequency of those meetings,
2) The method and manner of calling special meetings,
3) The method, term and manner' of election of .officers
and appointment of staff, if any; and
4) The procedures for execution of writings and legal
documents.
C. Officers. At the organizational meeting of. a quorum of
the Board, the Board shall elect from its members' a president, a
vice-president and a secretary-treasurer. The president, and in
his absence the vice president, shall preside at all meetingSI, call
special meetings,,: and determine the order of . business, until such
time as formal written bylaws requiring otherwise are adopted. The
secretary-treasurer, or his or her designate, shall be responsible
for compliance with the Oregon .Public Meetings taw, `'i.ncludin,g the
keeping of written minutes and, the giving of notice of future
meetings to the .pub.lic and the Board, until contrary or superceding
provisions are established in the bylaws.
AGREEMENT - page 6
Section 6. Expenses of operation.
A. The Board shall comply with applicable state and
local laws as to budget preparation and for audit of its books and
records. All books and records shall be open to inspection by any
member unit of local. government or its designate.
B. Upon written rev_uest, any funds of a member • unit of
local government advanced or contributed for the operation of the
Commission or for carrying out the purposes of this Agreement shall
be reimbursed from any revenues .received by the Commission in a
manner provided by the Board and subject to any indebtedness of the
Commission.
C. Subject to the limitations. set forth i.n Section 4 of
this Agreement, the Board shall determine, prior to 'the Board's
adoption and forwarding for governing body ratification of an RFP
pursuant `to Section 4D of this Agreement, a method of equitably
allocating expenses and revenues among the member units of local
government, which shall be incorporated into and become a part of
this Agreement.
Section 7. Actions of the Governing Bodies. .. The governing
body of a unit of local government entering into this Agreement
. shall adopt an authorizing resolution, in the form or substantially
the same form as set forth in the sample resolution set forth in
"Exhibit - A" , attached hereto and incorporated by reference herein,
and shall forward a certified copy .to the .Mayor of, the, City of
Beaverton, Oregon, 4950 S.W. Nall Boulevard, Beaverton, Oregon
97005. The first meeting of the Commission shall be held on April.
9 , 1980 , at a time and place to be determined and noticed by the
AGREEMENT - page 7
Beaverton Mayor. If for any reason the meeting is not held, then
the inti.al meeting may be jointly -callee . arcs noticed by any two
parties to this Agreement.
Section 8 . Duration of Agreement and Termination.
A. Duration. The duration of this Agreement. As
perpetual and the" Commission shall continue from year to year,
subject to subsection B) ,- below. ,
B. Termination. Prior to the ratification of a joint
RFP by a member ' unit. of local government pursuant to Section 4D,
any member unit may withdraw from this Agreement- at any time by
giving written ten (10.) day notice to the secretary-treasurer. Any
funds advanced or revenues receivable shall be prorated from the
date of actual receipt of the written notice and returned to the
terminating party by the secretary-treasurer. The Commission may
also be terminated by mutual agreement of all the parties at any
time, subject to contractual'obligations in existence at. said time.
Except as provided above, parties to :this,. Agreement: may not
unilaterally terminate following affirmative action under .Section
4D. of this Agreement, unless said unilateral termination is agreed
to by all other parties to thi.s ;Agre'ement.
Section- 9. General Terms.
K. Severability. The _ terms of this Agreement are
severable and a determination 'by an appropriate, body, having'
jurisdiction over the subject matter of this. Agreement th'a't results
in the inval.i:dity 'of any part, .,shall not affect the remainder .of
the Agreement.
B. Interpretation. The terms and: pr.ovi.sions of this
AGREEMENT - page 8
Agreement. shall be liberally construed in accordance with the
general purposes of this Agreement. Nothing in this Agreement
shall be construed to limit the 'right of any governing body of any
unit of local government to pursue an independent course of action
for the same purposes or proceed' based on a comparison of the
merits of the development of an i.ne iv--,dual System with the merits
of a joint, cooperative effort.
C. Increasing Member Units of Government. The . Board may
develop a method for allowing other units of local government to
enter into this Agreement that decides not to, enter into this
Areement or were not originally contemplated as possible members.
A fee or cost for subsequent Inclusion of a Party may be imposed
upon an interested party.
D. Effective Date. This Agreement shall .become effective
when it has been authorized by two or more of the units of. local
government and the authorizing resolutions have been received as is
provided in Section 7 of this Agreement.
E.. Amendments. Amendments to any term of this Agreement,
except -Section 8B, may be made by the Board, pursuant to the quorum
and voting requirements of Section . 4B of this Agreement for
substantive decisions, until the Request for Proposal is approved
and forwarded to the respective governing bodies of member units of
local government in accordance with Section 4D. entitled
"Ratification of Request for Proposal" . Thereafter , the terms of
this Agreement shall not be amended without the written
author izat-ion of the governing bodies of all
member units of local government.
AGREEMENT - page 9
No amendment may be made to Section 8B of this Agreement which
would result in a limitation of the right of any , member unit of
government to withdraw from this Agreement on ten (10) days notice
.prior . to ratifi.ca_ti.cn of. the Joint Request for Proposal. by that
member unit.
Subscribed to and entered into in duplicate original this
day c`. , 19 by the appropriate
officer (s). who are duly authorized by resolution to execute this
Agreement on behalf. of the governing body of the . below named unit
of local government.
CITY OF
Title
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Attest. By:
Title C.Ywi /ecew,au2 Title Ci,'1 /d
CITY OF Lake Oswego
By nuc
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Attest.; By-
Af
Title City Recorder eic i t y Attorney
CITY OF C
Attest : 2 Gl/t. BY=
Title Ti le
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AGREEMENT - p ac a 10
CITY OF RS fR/yj
By: I V77 -&W4�
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Attest. By
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CITY OF MILWAUKIE
By:
Mayor
Attest: rL ��z7�rfPa2 By•
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CITY OF AGATi�
By
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Attest: By; YdY2�x�v eld44;�,;�j
Title T le
CITY OF TIGAgp
By
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Attest: By;
Title;-- Citq Rder V le - City Administrator
AGREEMENT page 11
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CITY OFRoy"
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CITY OF
By:
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Attest: .. By:
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CITY OF Hillsboro
By: . d yrs,/
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Attest : 2 Byz
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AGREEMENT - page 12
CONSOLIDATEID MACC FRANCHISE
The following consolidated MACC Franchise represents
the original MACC franchise with all amendments
through 1988.
It is a working paper for reference only. The intent is to
provide a single point of reference, However, it has not
been reviewed.by legal counsel, nor adopted by the
MACC°Board of Commissioners.
TABLE OF CONTENTS
SECTION 1: PURPOSE AND INTENT
SECTION 2: DEFINITIONS
SECTION 3: GRANT OF FRANCHISE
SECTION 4 : CONSTRUCTION AND SERVICE REQUIREMENTS
SECTION 5: SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS
SECTION 6: SERVICES AND PROGRAMMING
SECTION 7: RATES AND CHARGES
SECTION 8: REGULATION OF .FRANCHISE
SECTION 9: GENERAL FINANCIAL. AND . INSURANCE -PROVISIONS
SECTION 10 : RIGHTS RESERVED TO GRANTOR
SECTION 11: RIGHTS OF INDIVIDUALS PROTECTED
SECTION 12 : TERMINATION AND EXPIRATION
SECTION 1.3: OPERATIONS AND MAINTENANCE
SECTION 14 : MISCELLANEOUS PROVISIONS
APPENDICES
EXHIBIT A: Summary of Proposal Commitments of Grantee to Grantor.
EXHIBIT B: ' The Intergovernmental Cooperation Agreement -
Metropolitan Area Communications Commission.
EXHIBIT C: Resolution 81.41 entitled, "A Resolution Establishing
a Method of Allocating Revenues 'and Expenses Resulting
from. any Cable Communication Franchise. Agreement
Regulated and Administered through the Metropolitan
Area Communications Commission. "
EXHIBIT D: Map . of Metropolitan Service District Urban Growth
Boundary, dated November - 8, 1979.
EXHIBIT G: Acceptance Certificate - Tidel Communications, Inc.
EXHIBIT H: Resolution 86-0.7, entitled, "A Resolution Approving
Compliance with the Terms of. MACC Resolution No. 86-02
by Tidel Communications, 'Inc•'., Approving Transfer of
the Franchise Agreement to WillametteCable
Television, Inc. , a Wholly Owned Subsidiary of Tidel
Communications, Inc . , Establishing Further
Requirements Related to the Approval of the Transfer. "
EXHIBIT I: Appendix No. 1 from Franchise Amendment Agreement,
entitled, "Public Communications Network Rates for
Government and Non-Profit Users. "
EXHIBIT J: Exhibit A from Franchise Amendment Agreement,
entitled, "Network Operation and Maintenance Plan
Public 'Communications Network. "
NOTE: Exhibits E: "Glossary of Rate Definitions, " F: "Resolution
86-02 Consenting to the Transfer of the- Cable Communications
Franchise Agreement to Tidel Communications, Inc. from Storer Metro
Communications, Inc. , " and other exhibits and documents superceded
or extraneous to this engrossed, Franchise Agreement are on file at
the Metropolitan Area Communications Commission.
PREFACE
This document is a compilation .of documents .which relate to
the authorization for and regulation of the construction, operation
and maintenance of the cable communications system in the territory'
of the. jurisdictions who are members of the Metropolitan, Area
Communications Commission
This document is aedited version of the original franchise
n
agreement entered into between Storer Communications and the MACC
jurisdictions as amended :by a further agreement between parties.
The assets of Storer Metro Inc.. and all the rights and obligations
created by the franchise agreement we're assumed by -Tidel
Communications Inc. in September, 1986. Tidel, Communications Inc.
has transferred all of the. assets and rights and obligations under
the franchise agreement to its wholly owned subsidiary, ' Willamette
Cable Television Inc. Willamette Cable Television is now.known as
Columbia Cable of Oregon. Columbia Cable assumed the Franchise on
, These transfers were approved by the MACC
jurisdictions.
This document has been published for the convenience of the
parties and the members of the public who are affected by it. It
is not . intended toreplace or be substituted for the original
documents from which it has been derived. Rather# - the original
documents remain the controlling legal documents for all relevant
purposes. Incase of any conflict between the original documents
and this edited version, the original documents shall always be
deemed to control.
SECTION 1: PURPOSE AND INTENT.
1.1 The Oregon cities of Banks, Beaverton, Cornelius,
Durham, Gaston, Forest Grove, Hillsboro, King City, Lake Oswego,
North Plains, Rivergrove, Sherwood, Tigard, Tualatin,. and
Wilsonville together with Washington County, Oregon (hereafter,
Grantors) are authorized to and by this franchise agreement do
grant to Willamette Cable Television, Inc. (hereafter Grantee) a
non-exclusive, revocable fifteen year franchise to construct,
operate and maintain a cable communications system for the
franchise area comprised of all area within the collective
jurisdictional boundaries of the Grantors;
1.2 The Grantors, by Intergovernmental Cooperation
Agreement, have joined together as the Metropolitan Area
Communications Commission (hereafter Commission) , solicited
proposals for a cable communications system franchise, and
following the evaluation of the proposals, have recommended Grantee
to be- the franchise pursuant to this agreement and have forwarded
this franchise agreement to the governing bodies of each Grantor.
Grantors have adopted it in the appropriate manner and agreed to
continue for the term -of the franchise with the Commission for the
purposes of franchise administration, regulation, oversight,
enforcement and generally to act .on behalf of and for Grantors
following the execution of this franchise 'agreement;
1.3 The purpose of this franchise agreement is to' create
a binding, enforceable contract between Grantors and Grantees.
This franchise agreement, among other things, incorporates in its
entirety all offerings, promises, representations and language
contained in the two volume proposal of Storer Metro
Communications, - Inc., entitled "Cable Communications for the 80's
and Beyond: A proposal to the Metropolitan Area Cable Commission",
a copy of which is on file in the office of the Commission,
certified as a true copy by the Grantee and the Commission
Chairman. Said proposal, by this reference, is incorporated into
and made a part of this franchise agreement, as though fully set
forth herein. This franchise agreement is intended to be the
document defining the performance by the Grantee and shall govern
if there is a conflict with any provision of . the proposal
incorporated herein and to that end a Summary of Proposal
Commitments is attached hereto, marked Exhibit A, and by- reference
incorporated herein. Failure of Grantee to abide by and carry out
any material offerings, promises, representation and language of
the proposal unless expressly consented to and approved by the
Commission, shall be a breach of this franchise agreement, even
though there may be no express reciting of a particular provision
of the proposal in this franchise agreement;
1 .4 Cable television activity has been taking place in the
unincorporated area of Washington County prior to the effective
date of. this franchise agreement . A summary. of such activity has
been published to the Commission and interested parties entitled,
"Cable Television in Unincorporated Washington County", covering
activity between 1979 - 1981 . Said publication, distributed under
FRANCHISE AGREEMENT - Page 4
1
a cover letter dated August 10, 1981, by Michael C. McCloskey,
Senior Management Analyst for Washington County, is hereby
incorporated by, reference and made a part of this agreement, as
though,.fully set forth herein. Said publication .contains, among
other things, the following documents: (a) Ordinance Nos.. 225 and
251. relating to cable television, activities, (b) the Washington
County Amended Cable Television Plan for the unincorporated area-of
thecounty, (c) the special .non-exclusive franchise agreement with
Sylvan Videocable, the non-exclusive agreement with Metro-West
Cablevision, Inc. , and a stipulated' agreement with Liberty Cable
Communications, Inc., relative to a U.. S. District Court ,Consent
Decree and Final Judgment. A copy of this document, certified a
true copy, shall remain on file for examination in the office of
the Commission and with Washington County.
1 .5 The governing body of each Grantor has adopted this
franchise agreement as that jurisdiction' s own agreement.
Therefore,. all Grantors herein have elected to continue
participation in the Commission and be bound .by its- .decisions and
actions taken pursuant to the powers, duties and ,responsibilities
set forth in... the Intergovernmental Cooperation Agreement which
created the Commission, a copy of which - is ; attached' hereto as
Exhibit B'. It is intended that Grantee shall rely upon, look to,
communicate with, and comply with the orders and decisions of the
Commission, its agents and employees for all matters which the
Commission has the authority to act and which are relevant to
carrying out the purposes of this franchise agreement . However,
nothing in this franchise agreement is intended to empower the
commission to make or allow substantive changes or amendments
hereto, without the written concurrence of, the governing body of
each Grantor.
FRANCHISE AGREEMENT - Page 5
SECTION 2. DEFINITIONS.
For' the purposes of this franchise agreement, the following
words, terms, phrases, and their derivations shall have the
meanings given herein. When' not inconsistent with the context,
words. used in the present tense include the future tense, words in
the plural ,.number include the singular' number, and words in the
singular number include the plural number. -The word "shall" is
always mandatory and not merely directory..
2.1 "Access Services" means services provided. on any
..public or .community access channel.
•2.2 "Additional Subscriber Service" means any service not
included in Basic Subscriber Television Service or Basic Subscriber
Radio Service or Institutional Service, including, but -not limited
to, pay-cable.
2.3 "Agency Subscriber" means a subscriber who receives a
service as a government, public agency, school, non-profit
corporation, or as a member thereof.
2.4 "Availability of Service" means the ability of ' a
subscriber to obtain a service within 60 days following the
energizing or activation of the system in any area, or following a
request in an. activated area, by paying applicable installation
and/or usage charges.
2.5 "Basic Subscriber Television Service" means .the total
of all of the following:
(a) The retransmission to all subscribers of all broadcast
television channel signals authorized by the FCC and provided
for herein;
(b) The provision to all subscribers of non-broadcast open-
channel signals, originating from sources outside the cable
communications system;
(c) The cablecasting to all subscribers of- local origination
channels) and the public, educational, and government access
channel signals; .and
(d) The transmission to all subscribers of all other
cablecast open-channel signals. Basic subscriber television
service may be offered to subscribers in one or more tiers, - or
combinations of programs.
2. 6 "Basic Subscriber Radio Service" means the .provision to
all subscribers of such audio services as the retransmission of
broadcast FM radio signals, the retransmission of short wave,
weather, news, time and other similar audio broadcast channels, and
the transmission of cablecast FM radio signals, as permitted by the
FCC.
FRANCHISE AGREEMENT - Page 6
2.7 "Broadcast Signal" means a television or radio signal
that is transmitted over-the-air to a wide geographic audience and
is received by cable communications system off-the-air; whether by
microwave link, by satellite receiver, or by some other. means. :
2 .8 "Cablecast Signal"_ means a non-broadcast ...signal that
originates within the facilities of the cable communications
system.
2.9 "Cable Communications System, Cable Television System,,"
or "System, " sometimes referred to as "Cable TV Systems", "CATV
System", or "Broadband Communications Network, " means a system of
antennas,. cables, amplifiers, towers, microwave links, cable-
casting studios, and any other conductors, terminals, converters,
equipment or facilities, designed and constructed for -the primary
purpose of distributing video programming to subscribers and.- the
secondary or additional purpose of producing, receiving,
amplifying, - storing, processing, or distributing :audio, video,
digital, or other forms of electronic or electrical signals,
whether owned, rented, leased or lease purchased by the .-Grantee,
2 .10 "Channel" means a six Megahertz . (Mhz) frequency band,
which is capable of carrying either one standard television signal,
or a number of audio, digital or other -non-video signals,. or some
combination of such signals.
2.11 "City" means an Oregon Municipal Corporation which is a
member of the Commission. and all of the territory within its
present and future . corporate boundaries, which has adopted this
franchise agreement as -its own and is .a member of the Commission.
2.12 "Commercial Subscriber" means a subscriber who receives
a cable television service in a place of business, where the cable
service may be utilized. in connection with . a business., trade,
profession. or other lucrative undertaking.
2.13 "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.
2.14 "Community Access Channel"., "Public Access Channel",
"Community Information Channel" ;or "Community Channel" means any
channel or portion of a channelutilized for programming, whether
by Grantee or ,in cooperation with, by or through the Commission,
where any member of the general public or any . non-commercial
organization may be a programmer, .:either without charge ,or in a
non-profit manner, on a non-discriminatory basis.
FRANCHISE AGREEMENT - Page 7
2.15 "Converter" means an electronic device which converts
signals and signal carriers from one form to another.
2.16 "County" means the County of Washington County, a
political subdivision of the State of Oregon, which is a member of
the Commission.
2 .17 "Educational Channel", Educational Access Channel" means
any channel or portion ` of a -channel on which educational
institutions are the only designated programmers.
2.18 "Entertainment Services" means television services
generally provided on a one-.way, non-interactive basis including,
but not limited to, broadcast.channels, local origination channels,
pay channels or any other channels supplied to subscribers at -a
basic or premium charge where the ' content of the transmitted
signals is uniform to all subscribers or individual classes of
subscribers and program selection is accomplished by operation of
a tuner or converter under the sole control of the subscriber.
2.19 - "FCC" means the Federal Communications Commission.
2 .20 "Franchise" or "Franchise Acrreement" means this
agreement, including all ' referenced material, adopted in the
appropriate manner-* by each Grantor as its own agreement with
Grantee and fully executed'by all Grantors and the Grantee.
2'.21 "Franchise Area" means the corporate, boundaries of each
city which is a member of'. 'the 'Commission; as now or hereafter
constituted, together with the unincorporated area of Washington
County. ,
2.22 "Government Channel". "Government Access Channel" means
any channel or ,portion of a channel on which government agencies
are. the only designated programmers.
2.23 "Grantee" or "Franchise" means Willamette Cable
Television, Inc. , .an Oregon Corporation, to which this franchise is
granted for the. construction, operation, and maintenance, of a
cable communication system, and the lawful successors, transferees,
or assignees thereof.
2.24 "Grantor" ,or "Grantors" means the units of local
government . which are either Oregon municipal corporations or a
county, a political subdivision of the State of Oregon,. which -adopt
this franchise. agreement by ordinance, resolution, or other
appropriate 'manner, .which are 'parties to this franchise Iagreement
and which are members of the, Conunission. A reference to Grantor in
this franchise agreement refers to the individual member unit of
government, .such as city or county, .as well as collectively t.o .the
units of a local government which have adopted this franchise
agreement and are part of the Commission.
FRANCHISE AGREEMENT - Page 8
2 .25 "Gross Annual Revenues" means the annual gross revenues
received by the Grantee from all sources in the operation of the
cable communications system, except that any sales, excise or other
taxes collected for direct pass-through to local, state or federal
government shall not be included.
2 .26 "Initial Service Area" or "ISA" means that.;portion of the
franchise. area which is within the Urban Growth Boundary, as now or
hereafter constituted, of the .Metropolitan. Service District. A
copy of the map showing the current boundary is attached hereto,
marked Exhibit D and by this reference incorporated herein.
2.27 "Institutional Service!' means such video, audio, data and
other services provided to institutional subscribers on an
individual application, private channel basis. These services may
include, but not limited to, two-way video, audio= or digital
signals., among institutions, or -from institutions to residential
subscribers.
2.28, "Institutional Subscriber Network, " "Institutional
Network, " "Institutional System," or "B System" means cable
communications network designed principally for the provisions of
non-entertainment, interactive services to businesses, schools,, .
public agencies or other non-profit..agencies for use in connection
with the ongoing operations of such institutions.
2.29 "Institutional Subscriber" means a place of business,
public agency, school or non-profit corporation receiving
institutional services on the institutional subscriber network..
2.30 "Interactive Services" means services provided to
subscribers where the subscriber either (a) both receives
information consisting of either- television or other signals and
transmits signals generated by the subscriber or equipment under
his or her control for the purpose of selecting what information .
shall be transmitted to the subscriber or for any other-purpose; or
(b) transmits signals to any other location for any, purpose.
2.31 "Intergovernmental Cooperation.Agreement" ,or -"ICA" means
that certain agreement and all- existing and futures amendments
thereto, entitled "Intergovernmental Cooperation'= "Agreement-
Met=opolitan .Area Communications Commission-, " a current copy of
which is. -attached hereto as Exhibit B.
2.32 "Leased- Channel" means. any channel or . portion of, a.
channel available for programming. for a fee or.. charge by persons or
entities other than Grantee; rincluding those portions of the other
access channels not in use. by their designated programmers.
Z,:32 (a) :, "Line of Demarcation" means the point where Grantee .
terminates a cable drop either on the Public Communications Network
or the Residential Subscriber .Network. The point shall be
designated by the subscriber and shall be limited to a single
point.
FRANCHISE AGREEMENT - Page 9
2.33 "Local Origination Channel" means any channel or portion
of a channel where the Grantee is the only designated programmer,
or has delegated programming to a third party and which is utilized
to provide television programs to subscribers.
2.34 "Monitoring" means observing a one way communications
signal, or the absence of a signal, where. the observer is neither
the subscriber nor 'the programmer, whether the signal is observed
by. visual - or electronic means, ,for any purpose whatsoever.
2.35 "Non-Broadcast Signal" means a signal that is transmitted
by a cable communications system and that is not involved in -an
over-the-air broadcast transmis'sionpath.
2.36 "Open-Channel" means any channel- that can be received by
all subscribers, without the necessity of special equipment.
2.37 "Pay Channel" or "Premium Channel" means a channel- on
which television signals are delivered to subscribers for a special
fee or charge to subscribers over and above the regular charges for
basic subscriber service, on a per program, per channel, or other
subscription basis.
2.38 "Pay-Television" or. "Pay-Cable" means the delivery to
subscribers over the cable communication system of a pay or premium
channel.
2..39 "Person" means any. corporation, partnership,
proprietorship, . individual, organization, or other entity
authorized 'to do. business in .the State of Oregon, or any natural
person.
2.40 "Private Channel", or "Closed-Circuit Channel" mean's any
channel which is available only to subscribers who are provided.
with special converters or terminal equipment to send or receive
signals on that channel.
2.41 "Programmer" mean's any person or entity who or which
produces or otherwise, provides program material or information for
transmission by video, audio, `digital-•or other signals, either live
or from , recorded tapes or other storage methods or media, . to
subscribers, by means of the cable communications system.
2.42 "Proposal" . means the , two volume cable communications
system proposal submitted to .the Commission on June -1, 1981 by
Storer Metro Communications, Inc., incorporated by reference
herein, and * on file with the Commission, entitled "Cable
Communications for the ' 80's . 'and Beyond: A proposal to the
Metropolitan Area Cable Commission."
2.43 "Public Access Channel" means any channel or. portion of
a channel where ` any member - of the general public ` may , be a
programmer on a first come - first served basis, subject ' to
appropriate rules formulated by the Commission.
FRANCHISE AGREEMENT - Page 10
2.44 "Resident" means-any person residing within, the franchise
area or as otherwise defined by applicable law.
2.45 "Residential Service" means services delivered on the
residential subscriber network.
.2.46 "Residential Subscriber" means a 'subscriber who receives
services on - the residential subscriber network , in an individual
dwelling unit, where the service `is not be utiiized" in .connection
with a business, trade or profession..
2.47 "Residential Subscriber Network"' or' "A 'System" means a
cable communications network designed principally for the delivery
of entertainment, community access or interactive services to
individual dwelling units.
2.48 "School" means any public educational institution,
including ' primary and secondary schools, . community colleges,
colleges, universities and extension centers, ' and all similarly
situated private and parochial educational institutions which,have
received the appropriate accreditation from the State, of 'Oregon
and, where required, from other authorized accrediting 'agencies.
2.49 "Section" means any section, subsection. or provision of
this franchise agreement.
2.50 "Streets and Public Ways" means the surface .of, and the
space above and below any public street, sidewalk, alley, or other
public way of any type whatsoever, now or hereafter existing as -
such within the franchise area, and-any easements, rights of way or'
other similar means of access to the extent Grantors have the right
to allow Grantee to use them.
2`.51 "Subscriber" means any person who elects to subscribe to,
for any" purpose, a service provided by the Grantee 'by means of, or
in connection with, the cable communications system -whether or not
a fee is paid for such service. . ;
2.52 "Tappincr" means observing a:two-way communications signal-
exchange where the. observer ` is neither of the communicating
parties, whether,`the exchange is observed by visual or electronic,,
means, for any purpose. whatsoever
2.5.3 "_Writing" means handwriting, `typewriting, ,'printing,
photostatt ng, '-photographing and every - means ' . of recording,
including; letters, wo=ds, pictures, sounds or . symbols,. .or
combination thereof, and all papers, '-maps, magnetic ,or. paper tapes,
photographic .films and prints, magnetic or' punched cards,. 'discs,
drums, software, or other documents.
2.54 "Year" means 'a full calendar "year, unless' designated
otherwise, such as a "fiscal year" .
FRANCHISE AGREEMENT - Page 11
SECTION 3: GRANT OF FRANCHISE
3.1 Grant. Grantors, and each of them, hereby grant to the
Grantee a non-exclusive,' revocable franchise for a fifteen year
period from and after the .effective date hereof to construct,
operate and maintain a cable communications system within Grantors'
boundaries. This franchise constitutes the authority, right,
privilege and obligation to provide the services of a cable
communications system as required by the provisions of this
franchise agreement.
The franchise is granted subject to the terms and conditions
contained herein, and consistent with charters, ordinances or other
laws or regulations of Grantors, which 'are incorporated by this
reference and 'made a part of this franchise agreement as 'is fully
set forth herein. In the event of conflict between the terms and
conditions of this franchise and the authority on which Grantors
may grant a franchise, the charters, ordinances or other
regulations of Grantors shall, without exception, control.
The franchise is hereby made subject to the general ordinances
or other regulations of Grantor now in effect or hereafter made
effective. Nothing in this franchise shall be deemed to waive- the
requirements of any codes 'and ordinances of Grantors regarding
permits., fees to be paid, manner of construction or other
regulations.
3.2 Use of Public Streets and Ways. For the purpose. of
constructing,, operating and maintaining a cable communications
system in the franchise area, the Grantee may Ierect, install,
construct, repair, replace, -reconstruct, and .retain in, on, over,
under, ' upon, across, and along the public streets and ways within
the franchise area such wires, cables, conductors, ducts, conduits,
vaults, manholes, amplifiers, appliances, pedestals, attachments,
and other property and equipment as are necessary, convenient and
appurtenant to the operation of the cable communications system.
Prior to .construction or alteration, however, the Grantee shall in
each case file plans as required with the appropriate agencies of
Grantors and in accordance with any agreements with utility
providers and companies, and receive approval as necessary before
proceeding.
3.3 Duration and Effective Date of Franchise. Except as
otherwise provided herein for early termination, the term of this
franchise and all rights, privileges, obligations and restrictions
pertaining thereto shall be fifteen '(15) years from the effective
date of this agreement, at which time the franchise shall expire
and be of no force and effect. The effective date of the franchise
shall be the date of franchise acceptance by Grantee in accordance
with Section 3.7 herein and approval by the Commission of the
detailed construction. schedule submitted with the acceptance in
accordance with Section 4 .2,' herein.
FRANCHISE AGREEMENT - Page 12
3.4 Franchise Not Exclusive. The franchise granted herein is
not exclusive. This franchise shall not be construed as any
limitation upon the right of the Grantors, through .their proper
officers, to grant to other persons or. . corporations, rights,
privileges or authority the same as, . similar to, .or different from
the rights, privileges or authority herein set forth, inthesame '
or other streets' and public ways or, public places by -franchise,
permit or otherwise.
3.5 Franchise Non-Transferable. This franchise shall not be
sold, leased, mortgaged, . assigned or otherwisetransferred, nor
shall any .of the rights or...prvileges herein granted or authorized
.be leased, assigned, mortgaged, _;sold or transferred, either in
whole or in part, nor shall title hereto, either. legal or
equitable, or any right, interest or property herein; pass to or
vest in any person, , except the Grantee, either by act of the
Grantee or by' operation of law, without the consent of the
Grantors, expressed in writing. The granting of such consent in
one instance shall not render unnecessary any subsequent consent in
another instance:.
The Grantee, upon any transfer as heretofore described, shall
within sixty (60) days thereafter file with the Grantors through
the Commission a copy of •the deed, agreement, mortgage, lease,, or
other written instrument evidencing such sale, lease, mortgage,
assignment or transfer, certified and sworn to as correct by the
Grantee.
Every such transfer as heretofore described, whether voluntary
or involuntary, shall be deemed void. and of no effect unless
Grantee shall within .sixty (60) days after the same shall have been
made, file such certified copy :as. is, required.
3,.6 Chancre in Control. . The Grantee- shall promptly notify the
Grantors through :the Commission of any proposed change in, transfer
of, or.,.acquis.ition by any other party of control of the Grantee.
Such .change -in control shall make this 'franchise•.,. subject to
revocation unless and until the. Grantors shall have given written
consent thereto. .For the purpose- of determining whether they. will
consent to such change, transfery or acquisition of control,-
Grantors
ontrol,Grantors may inquire into the qualifications of the prospective
controlling party to perform the obligations, of the Grantee under
this franchise agreement. The Grantee shall assist Grantors in any.
, such inquiry. The Grantors may condition said transfer upon the
terms and conditions as it deems appropriate.
FRANCHISE AGREEMENT - Page 13
3:7 Franchise Acceptance. The Grantee, together with Tidel
Communications, Inc., an Oregon .corporation (hereinafter parent
corporation) , within thirty (30) days after the tender by the
Commission to Grantee` of the franchise agreements adopted by each
Grantor shall file in the office of the city recorder, 'city clerk,
county clerk or other appropriate official for receipt of
correspondence . for a Grantor, a written acceptance executedby
Grantee and its ''parent corporations, in a form approved by the
Commission. Parent corporation, Tidel Communications Inc., by
executing and filing the acceptance, " guarantees performance by
Grantee of all Grantee's obligations hereunder and agrees to
perform those obligations on .Granteels, behalf, if so ordered by
Grantors through the Commission, in. the event" Grantee for any
reason within its control fails to perform them. In the event
Grantee and parent corporation fail to accept this franchise
agreement as to any individual Grantor as -provided herein, this
franchise shall be null and void.
FRANCHISE AGREEMENT - Page 14
SECTION 4: CONSTRUCTION AND SERVICE REQUIREMENTS
4.1 General. The Grantee shall meet . or exceed all .the
construction, extension and service requirements ,set forth in thisu
franchise agreement which includes those constrction, extension
and service requirements set out in the. .proposal. The Grantee
shall meet .the construction, extension and. service requirements
regardless of whether assumptions contained in the proposal,
including, but.. not limited to, subscriber penetration and/or
revenue projections#, prove .to. be. correct..,
4.2 Construction Schedule. ..
(a) A detailed construction schedule, which shall be
subject to Commission approval, shall be submitted to. the
Commission at the time of acceptance of adopted franchise
agreements by Grantee pursuant to Section 3.7, herein. Following
approval of the construction schedule, Grantee shall complete
system construction and offer service to all residents in the
initial service area, except residents within the City of Lake
Oswego and residents with the unincorporated area of Washington
County to Liberty Communications, Inc. and Sylvan Videocable,
within twenty-four (24) months after commencement of construction.
Grantee shall commence construction within six (6) months after
effective date of this franchise. For purposes of this franchise
agreement, "commencement of construction", as finally determined by
the Commission if necessary, shall mean the beginning of
installation of any part of the system., including, but not limited
to, the construction of any facility, building or structure, or the
stringing of any strand wire or the laying of any conduit to
facilitate the placing of coaxial cable within the franchise area.
Following commencement 'of construction, Grantee . shall
complete, activate and have service available to subscribers,
except residents of the city of Lake Oswego .and residents with the
unincorporated area of Washington County currently within the
service area granted. by Washington County to Liberty
Communications, Inc. and Sylvan Videocable, in at least thirty-nine
percent (39%) ' of the ISA in the first twelve months and in the
remaining sixty-one percent (61%) of the ISA in the second twelve
months. Service shall be offered to any -requesting subscriber no
later than 60 days from the date of request following the
energizing or -activation of the system within any specific area..
Grantee shall complete system construction and offer
service to all residents in the initial service. area within the
city of Lake- Oswego by July 11, 1984.
FRANCHISE AGREEMENT - Page 15
(b) Within 18 months of the effective date of this
franchise the Grantee shall commence construction of a system to
provide entertainment services to residents within the
unincorporated area of Washington County -currently within those
service areas previously authorized by Washington County (except
for the service areas referred to in Section 4 .18, herein) ; .and
within said service areas where the Grantee, pursuant to this
agreement, is required to construct the institutional system.
The Grantee shall test market such entertainment services
to not less than 200 subscribers in the aforementioned area prior
to January 11 1985.
The Grantee shall provide to the Commission* and to
Washington County the results of such test marketing and any other
information related to Grantee' s provision of entertainment
services to the aforementioned area by January 11 1985.
Upon submission of such results and information the
Grantee and Washington County will in good faith meet to discuss
the feasibility of the Grantee. operating an ' entertainment system
within such area, the manner in which said system would be
constructed' and provided and any other related matters.- The
Grantee and Washington County shall mutually agree on the time and
place of such a meeting(s) .
The results of. such a meeting, including any agreement or
proposal which may occur, may be reviewed by the Commission. The
Commission may designate a representative to attend any meetings
between the Grantee and Washington County.
This provision shall not in any way limit the right of
the Commission or Washington County' to authorize the construction
and operation of a system different,,than that of.the .Grantee in the
area referred to herein, nor shall it limit Washington County from
meeting and discussing with Grantee at any time matters relating to
Section 4.2 (b) .
4.3 Penalties for Delay in Construction. Upon determination
by the Commission that the Grantee has failed to strictly 'comply
with the approved construction. schedule, the"Commission may apply,
at its sole option, any of the following penalties:
a) Imposition of a penalty . of up to $100 per day for
each mile of cable not completed within 15 days of the scheduled
completion date;
FRANCHISE AGREEMENT - Page 16
(b) Imposition of a penalty of up to $1, 000 per day for
each day in. excess of thirty days that any major facility is not
completed as set forth in . the detailed construction schedule
approved by the Commission.. For the purpose of this• section, major
facility shall .include, but not be limited to, headend facilities,
access and production studios, local office facilities and the
like;
c,) Reduction in the duration of the franchise on a
month-for-month basis for each month of delay exceeding three (3)
months;
{d) Forfeiture of faithful performance bonds for delays
in the construction of any substantial part of the system exceeding
one year;
(e) Termination of the franchise for delays exceeding
eighteen (18) months; and
(f) If, after six (6) months of the effective date .of
the franchise, Grantee has not commenced construction and Grantee
does not commence construction within thirty (30') days of written
notice from the Commission of such failure, the Commission may
impose a financial penalty in an amount not 'to exceed Five Thousand
Dollars ($5, 000) per day for each day the Grantee fails to initiate
construction.
Failure to impose a penalty for one violation does not
preclude the imposition of a penalty for another or subsequent
violation.
4.4 . Right of Inspection of Construction. Grantors shall have
the right to inspect all construction or installation work
performed within their respective jurisdictions and to make such-
tests as. they shall find necessary :to , ensure compliance with the
terms of this franchise'agreement and other pertinent provisions of
law.
4.5 Provision of Residential Service. Subject to the
provisions of Section 7 herein concerning' rates and charges-,
Grantee shall provide all-- residential services to .&kl residents .
within the initial �servicd . area of the franchise area at uniform
installation charges and monthly' rates. and within. the schedules of
Section 4 .2, above. 'New 'residents in active cable areas shall be
offered, service within sixty '(60_) days after request 'for service..
The''following exceptions shall apply:
FRANCHISE AGREEMENT - Page 17'
(1) Isolated Homes.
A. For dwelling units either within or outside of the
initial service area, where the number of homes per .mile is
less than 35, Grantee shall have no obligation to provide.
service necessitating more than a line extension or drop. of
200 feet as measured from the end of the existing cable plant,
unless the person requesting service contractually agrees to
pay construction costs based on -the following formula:
(1) Grantee shall, provide service at its standard
installation, charge if no more than 200 feet of
construction is required.
(2) Grantee and the subscriber shall share equally the
actual cost of the extension for the distance over 200
feet but less than 500 feet.
(3) The subscriber shall pay all costs for construction
greater than 500 feet.
(4) The amount of cable construction as measured in
feet, which is the basis for the cost sharing, will be
computed as follows:
Start at a, point at the nearest existing cable plant
exclusive of a street crossing. The actual length of
-cable needed from the starting point to the subscriber's
home shall be the total number of feet. The cost of the
project from the starting point to the home shall be
divided by the total number of feet. The resultant cost
per foot shall be used to compute each party' s share.
Street bores or crossings needed to bring the existing
cable plant to the requesting subscriber' s side of the
street shall not be included as part of the extension,.-
(2) New Subdivisions.
A. Grantee will be required to build, activate, proof and
sell cable in new subdivisions within- sixty (60) days of the
time when 50% of the subdivision"s potential dwelling units
.have been .issued building permits, or 25% of the subdivision"s
potential dwelling units have contracted for cable television
service.
B. If plant extension as measured from the end or the
existing cable .plant exceeds 200 feet times the number - of
.planned dwelling units in the new subdivision to reach the
beginning of.the new subdivision Grantee may consider the new
subdivision as isolated homes and condition service on
subscribers compliance with Subsection 4 .5 ('1) above.
FRANCHISE AGREEMENT Page 18
C. The Commission, as a franchise obligation, will notify
all member jurisdictions to; add Grantee to their lists so
Grantee will be notified of Grantee considerat ions,. of new
subdivisions.
D. Where jurisdictional approval of a subdivision ,includes
provision for . the construction of ,separate _'phase of the
subdivision each phase will. be , considered a- separate
subdivision for the purpose of this section.
4.6 Provision of Institutional Services. Grantee shall
provide access to all services on the institutional network to all
public agencies, public . and private educational institutions, .
hospitals, as well as commercial establishments , and major .
businesses within the initial service area of the franchise area,
as such agencies, institutions, hospitals, commercial and major
business establishments shall be determined by the Commission. The
provision of service to public_ agencies, public and .private
educational institutions and hospitals will be subject to the
installation charges and rates specified in Section 7.8.
4 .7 Construction Cost. Grantee has estimated in the
franchise application that the construction cost of the cable
communications system serving the franchise area will be as
follows:
Antennas and Towers $ 112, 000
Headend 2,540, 000
Satellite Earth Stations 202, 000
Distribution Plant 111780, 000
Hub Interconnect Cable 300, 000
Washington County Interconnect Cable 50, 000
:Metro-West Network Upgrade 17 0, 000
Drops,: Converters, Subscriber Connections
and Converter Replacements, 15,797, 000
Buildings 30, 000
Leasehold Improvements 116,000
Cablecasting Equipment 2,226,00D
Security Alarm Installation 21 679,000
Dow Jones Installations. 17.7:, 0.00
Cash Security Fund = 100,000
Test Equipment and 'Spares 185.,000
Vehicles 77.11,000
Capitalized Start-up Expenses 7921000
Total _ $384 0.27 :.000
FRANCHISE AGREEMENT - Page 19
4.10 Repair and Restoration of Streets. Public Ways and
Grounds. Whenever the Grantee shall disturb the surface or
otherwise damage any street, alley, public highway, other public
way`or ground for any purpose mentioned herein, it shall repair and
restore: 'the same. to the condition - in which it was prior to , the
opening or other damage thereof, and when any opening is made by
the Grantee in any hard surface pavement in any street, alley,
public .highway or other way the Grantee shall promptly refill the
opening and restore the pavement to its original condition. The
Affected Grantor may refill and/or repave in case of neglect ,of the
Grantee. The cast thereof, including the cost of inspection,
supervision and administration shall be paid by the Grantee. - All
excavations made , by the Grantee in the streets, alleys,, 'public
highways or other ways shall be properly safeguarded for. the
prevention of accidents. The work hereby required shall be done -in
strict compliance with the rules, regulations and ordinances of
Grantors as now or here after provided.
4..11 Construction Codes. The Grantee shall strictly adhere
to all building, zoning or other codes currently or hereafter in
force in each Grantor' s jurisdiction. The Grantee shall arrange
its lines, cables and other appurtenances,' on both public and
private property, in such a manner as to cause no unreasonable
interference, as determined by the Grantor having jurisdiction,
with the use of said public or private property by any person. In
the event of such. interference, Grantors may require the removal of
Grantee's' lines, cables and appurtenances from the property in
question.
4 .12 .' Reservations of Street Ricrhts. Nothing in this
franchise agreement shall be construed to prevent Grantors from
constructing sewers, grading, paving, repairing and/or altering any
street, alley, or public highway, or laying down, repairing, or
removing water mains or constructing or establishing any other
public work. If any such property of the Grantee herein shall
interfere with the construction or repair of any street or public
improvement, whether it be construction, repair or removal of a
sewer or water . main,. the improvement of.. a street or .any other
public: improvement, all such property including poles, wires,
conduits or other appliances and facilities shall be removed,
replaced or -relocated in a timely manner as shall be directed by
the affected Grantor, so that the same shall not interfere with the
said public work of such Grantor, and such removal, replacement or
relocation shall be at the expense of the Grantee.
FRANCHISE AGREEMENT - Page 21
4.13 -Street Vacation and Abandonment., In the event any
street, alley, public highway or portion thereof used by . the
Grantee shall be vacated by a Grantor, or the use thereof
discontinued by the Grantee,. during the term of,this franchise, -:the
Grantee shall forthwith remove his facilities therefrom unless
specifically permitted in writing to 'continue .the same by ,the new
.controlling jurisdiction or property�owner, .as :appropriate ' At the
time of removal thereof the Grantee, shall restore, repair or
reconstruct the street area where such removal •has occurred, and
place the street area where such removal has occurred In . such
condition as may be required by Grantor. . In the event of, failure,
neglect :or refusal of the Grantee, to repair, improve or maintain
such street, the affected Grantor may do such work or cause it to
be done, and the cost thereof to the Grantor shall be paid by the
Grantee.
4 .14 Movement of Facilities. In the event it is necessary
temporarily to move or remove any of..the Grantee' s wires, cables,
poles or other facilities placed pursuant to this franchise, in
order to - lawfully move a large object, vehicle, building. or other
structure over the streets, alleys or highways of the Grantor.,-
Grantee, upon notice, shall move at the expense of the person
requesting the temporary removal such of its facilities as may be
required to facilitate such movements.
4 .15 Easements. When Grantee secures easements in its own
name it shall use an easement form approved by the Commission.
4 .16 Undergrounding.
(a) All system construction isosubject to the. applicable
building codes of the state, and codes, ordinances and regulations
of each Grantor and any future amendments thereto.. Cable must be
installed underground where (1) all. existing utilities .are placed
underground,, , (2) statute, ordinance, policy..'or other regulation of
an individual Grantor or the Commission requires utilities to be
placed underground, - (3) overhead utility lines are .placed
underground (Grantee shall bear the cost- of such movement of .its
facilities) , (4): Grantee is unable: 'to get pole clearance, - (5)
underground easements are obtained from' developers of new
.residential areas, or; (6). . ' 'utilities •are overhead but residents,
prefer .underground (service provided •at' cost.) .
(b) Grantee shall use conduit on-100. of undergrounding. .
The specification policy for the use of. condut is as follows.:
1 . PVC conduit is used in 'every. instance where the.-cable
is either placed under or cut into asphalt, . concrete or
rocky, shaly soil;
2 . PVC conduit is used in all areas where concrete or
asphalt is proposed;
FRANCHISE AGREEMENT - Page 22
1
3. Polyethylene conduit is used in all areas where good
chemical stability and moderate crush resistance are
needed;
Grantee will utilize, in conjunction with other utility
companies or providers, common trenches for underground
construction wherever . available. The method of undergrounding,
whether by trenching, boring or plowing of conduit, is at the
discretion of each Grantor. The cable shall consist of a center
conductor made from electrical grade solid copper or copper clad
aluminum covered by a dielectric manufacture by gas injected third
generation foamed polyethylene. This is covered by a seamless high
purity electrical grade aluminum tubing. The dielectric is
manufactured to adhere to the center conductor in order to form an
effective moisture entrance and travel barrier.
The above stated specification may be modified, after
approval by the Commission, as superior materials and products
become available. In no case may the specification be lowered.
4.17 As-Builts. Grantee shall provide to each affected
Grantor and to the Commission "as built" drawings of the system.
The drawings shall be at a scale of l inch to 200 feet on 11 X 17
size sheets. The purpose of the drawings is to show the actual
location of all facilities. "As builts" shall be updated as
changes occur in the system..
4.18 Construction Requirement in Washincrton County.
Notwithstanding any other provision of this franchise agreement,
the Grantee is required to either construct the system required by
this agreement in the unincorporated area of Washington County
granted to Metro-West Cablevision, Inc.: by a nonexclusive
agreement, a copy of which is on file as part of the publication
entitled "Cable Television in Unincorporated Washington County",
heretofore incorporated by reference herein, or to - upgrade any
existing system within said area to conform to the system
requirements, standards and specifications as proposed by Grantee
and incorporated into this agreement. How the Grantee intends to
comply with this section shall be set forth in the approved
construction schedule as required herein.
FRANCHISE AGREEMENT - Page '23
1
Grantor and Grantee jointly acknowledge that Grantee's
projected investments was a factor in the evaluation of proposals.
Grantee agrees to provide such equipment and services as were set
forth in the proposal. Grantee agrees to request in writing
Commission consideration of and to- provide to the Commission
sufficient written explanation, justification and information
regarding, (a) ' any anticipated' adjustments in its estimated
construction costs, (b) any proposed substitution of or change in
equipment, physical plant, or. system facilities and operations, or
(c) any other contemplated deviation from system construction or
services contained in the proposal. The: Commission ' may, (a)
approve in whole or in part such action as proposed by Grantee, (b)
approve in whole or in part subject to conditions requiring
additional facilities or services to offset the difference between
actual and estimated construction costs which are deemed necessary
by the .Commission to maintain the quality of the proposed system,
(c) approve subject to a reduction in rates or disallowance of or
offset to a requested or future rate increase in accordance with
Section 8.4 herein, or (d) disallow the request in its entirety.
4 .8 Erection of Poles. If additional poles in an existing
aerial utility system, route are required, Grantee shall. negotiate
with the utility company or provider for the installation of the
needed poles. 'Grantee shall not erect, for' any reason, any pole on
or along any street or public way in an existing aerial utility
system unless approved by the affected Grantor. The Grantee shall
negotiate the lease of pole space and facilities from the existing
pole owners for all aerial construction, under mutually acceptable
terms and conditions and shall comply with all ' ordinances,
resolutions, rules and regulations of the Grantors.
4. 9 Trimming of Trees or other Vecretation. In the conduct of
its business, it may be necessary for Grantee to trim trees or
other vegetation in order to ' provide space for its facilities.
Tree or vegetation trimming shall be done -only in accordance with
the ordinances and other. rules and regulations of each Grantor and
if the tree or vegetation is located on private property, -with the
permission of .the owner of the property on which the tree or
vegetation stands. Nothing contained in this franchise agreement
shall. be deemed to empower or authorize Grantee to cut, trim or
otherwise disturb any trees or.-other vegetation,' whether ornamental
or otherwise.
FRANCHISE AGREEMENT - Page 20
SECTION 5: SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS
5.1 System Configuration. .The cable communications system
shall consist of at least two interconnected networks,, A single.-
trunk residential network and dual-trunk -'institutional network.
Both networks shall provide activated bi=directional communications
capability in their initial configurations..
5.2 Channel Capacity. . The cable system.shall be, installed-to
deliver: signals .at frequencies up to•four .hundred and forty - (44`0:)
megahertz (Mhz) , with specific channel capacity ':as,indicated below.
Signal. TV Channel
Cable Network Signal Direction Frectuency Range Capacity
Residential Outbound, 50 - 440 Mhz 60 plus FM
band
Residential Inbound 5 - "30 Mhz 4 video
equivalent
Institutional Outbound 203 - 330 Mhz 21
(each cable)
Institutional Inbound 5 - 132 Mhz 21
(each cable)
5.3 Satellite Earth Stations. Grantee agrees to and shall
provide initially four (4) earth satellite stations. Grantee shall
reasonably provide a sufficient number of earth stations to receive
signals. from all operational. communications satellites throughout
the life of the franchise.
. 5.4 Capacity and Capability for 'Interactive Residential
Services. Grantee agrees to and shall. provide,, in, the initial
system configuration,. the capacity and capability for interactive
residential services .including,,' but not limited to, security alarm
(including intrusion" and_ fire. alarm) monitoring, home shopping,
energy management, home, banking,. teletext, information access, ,and
retrieval, subscriber . polling, video games and one-way .'or
interactive education. All customer equipment necessary for' such
services,, such' as addressable interactive converters, � ' home
terminals and home detectors, shall be provided to subscribers; by
Grantee in accordance with established and uniform rate schedules.
Return modules will be placed, installed, tested and, made
operational in all residential network amplifiers ` and,- trunk
extendersat . such time as the threshold established by Section
6.4 (a) of, the Franchise Agreement is reached.
FRANCHISE AGREEMENT - Page 24
5.5 Capacity and Capability for Institutional Services.
Grantee agrees to and shall provide, in the initial system
configuration,. the capacity and capability, when necessary to
provide service to a subscriber, for -one-way and interactive
institutional communications services including, but not limited
to, video, voice and data communications. The system shall have
the capacity to provide a full range of channelization and
multiplexing options to meet the needs, of the broadest spectrum of
'institutional users. The system shall provide all features
reasonably necessary to maintain message privacy and security,
which, may include but not limited to addressable taps and
converters, data encryption and signal scrambling.
Grantee agrees to and shall provide and maintain all customer-
premises equipment provided by Grantee that is necessary to
interface with the cable communications system at a cost to be .
determined by Grantee. Equipment commercially available and not
directly linked to the cable system, such as data terminals, video
cameras and microphones, may be supplied by Grantee or, provided no
harm is caused or results to the cable communications system, by
the cable system user.
Grantee shall provide one institutional system for use by
government and non profit users and .one institutional system for
use by business and industry users.
5.'6 Cablecastinc Facilities. Grantee agrees to and shall
provide the following cablecasting facilities or their equivalent
for the cable system serving the Grantors -and each of them at the
estimated costs shown:
Facility Quantity Cost Estimated
.Local Origination Studio 1 $241, 600
Community Access Studio 5 7030, 000
Radio Access Studio 1 7,600
Mobile Production Van 2 263,200
Studio on Wheels 1 232, 600
Total -$1, 4480, 000
Grantee agrees that if the actual construction costs of the
cablecasting facilities are contemplated to be below the estimated
construction cost contained herein, Grantee will follow and abide
by the procedure, the same or substantially the same as, set forth
in Section 4.7 herein for Commission consideration and decision
regarding . anticipated or proposed adjustments, changes . or other
deviations from proposed costs and provision of facilities,
equipment or services..
FRANCHISE AGREEMENT - Page 25
5.7 Interconnection. Grantee shall interconnect the cable
system with all other cable systems in: Washington,' Multnomah and
Clackamas Counties. At . a minimum, . the interconnection ' shall
provide 20 MHz bandwidth in* both directions. This bandwidth, shall
provide 1.the capability to transmit three video channels .in each
direct ion,. . with the remaining 2 MHz in each direction capable of
carrying data,. telemetry, audio, and other non-video RF signals.
The interconnection shall be completed within two (2) years of
commencement. of construction of the systema In addition; Grantee
shall interconnect the system .with the State of Oregon facilities
and services, at Salem, Oregon`. at such . time as the state makes
services, whether video or data transmission, available to Grantee
within the franchise area., whether by cable, microwave link or
otherwise.
The Commission understands that interconnection will require
cooperation from other cable system operators. Upon the request of
the Commission.. Grantee shall begin negotiations with.cable system
operators ' in other adjacent cities and counties to achieve
interconnection. Within six (6) months of the Commission request,
Grantee shall report to Grantors the results of the negotiations.
5.8 Emergency Alert Capability. Grantee shall provide the
system capability for the Commission to transmit an emergency alert
signal from locations designated by the Commission to ' all
participating subscribers. Grantee shall also provide an emergency
audio override capability to permit the Commission or, within its
jurisdiction, an individual Grantor to interrupt programming and
cablecast from locations designated by each Grantor an audio
message on all channels simultaneously in the event of disaster. or
public emergency.
Grantee may satisfy this obligation by installing and
maintaining a Scientific Atlanta Communications Alert System. By
90 days after the effective date of the amendment agreement Grantee
shall operate and make available the emergency alert, capability of
this system in accordance with an operational plan subject to, the
approval of the Commission.
5.9 Standby Power. Grantee shall provide standby power
generating. capacity, at the cable communications, system control
center and at, all . hubs. Grantee shall maintain standby power
system supplies, rated at least at twelve (12) hours ;duration,
throughout -the. distribution networks.
`5.10 Parental Control Lock. Grantee shall provide
subscribers., upon request and at. no 'cost,. with a parental control
locking device or digtal .code that permits inhibiting the viewing
of premium channels.
FRANCHISE AGREEMENT. - Page 26
5.11 Status Monitoring. Grantee shall provide an automatic
status monitoring system as an integral part of both the
residential and the institutional cable -networks in theevent the
Commission requires it to do so. .The Commission 'may require
Grantee to install such a system if within 90 days after July 1,
1988, July 1, •1991, July 1, 1994 and July 1, 1997 if the Franchise
Agreement term is extended, it determines that Grantee has failed
to meet the quality of service and consumer protection requirements
of this agreement as amended.
5.12 Technical Standards. The Federal Communications
Commission (FCC) Rules and Regulation's, Part 76, .Subpart K
(Technical Standards) , as now or hereafter constituted, shall
apply. However; because of the recent development of interactive
and other innovative services, modifications of FCC standards, as
presented in the specifications below, are considered as necessary
to meet system service objectives.
Applicable Technical Standards
(1) Residential Network, Forward Sictnals - Class I
Channels. The residential network shall be capable of carrying 60
Class I television channels and the full FM broadcast band. The
combined forward trunk and distribution system shall deliver
signals to each subscriber' s television receiver that will meet or
exceed the following specifications at the mean system temperature
+70 degrees F on each and every video channel. This shall include
the effects of drop cables, interior splits, and any terminal
equipment such as. descramblers and set-top -converters.
A. Peak to Valley, 54-440 Mhz 4 .0 db
B. Peak to Valley, 6 Mhz 0.5 db
C. Carrier to Noise 44 .0 db
D. Cross Modulation 57.0 dB
E. Carrier to Hum 45.0 dB
F. Carrier to Composite Triple Beat 55.0 dB
G. Carrier to Triple Beat 76.0 dB
H. Carrier to Second Order 68.0 dB
I. Chroma/Luminance Delay +150 ns
•J. Carrier to Echo . per mertz curve
K. Differential Gain 0.5 dB
L. Differential Phase 1.0
M. Subscriber Level +8.0 dBnV
N. Adjacent Channel Level Differential 2 .0 dB
0. FM Levels Channel 6 -second
P. Subscriber Isolation X30. 0 dB
(2) Residential and Institutional Networks, Reverse Signals.
The reverse channels of both the residential and institutional
networks shall have the capability of providing return signals. from
any subscriber tap to the extreme end of any area of the -system
which is intended to receive the return signals without noticeable
signal degradation or interference.
FRANCHISE AGREEMENT - Page 27
A. The system capability shall include :transmission .of
audio, color video, black and white video, and both low and high
speed data, whether analog or digital.
B. If necessary to prevent the build-up of noise and
distortion products, the area shall be divided into sections, and
subtriinks run to a central hub within the areas. Equivalent
alternatives such as addressable taps or switches may be utilized.
C. No more than +54 dBmV output level shall be required
out of any customer modem to meet the system specifications.
D. Where applicable, the end of the system
specifications shall include the effects of any signal reprocessing
equipment necessary to achieve forward transmission..
E. For all video signals originating within the system,
the signal delivered to the subscriber' s television receiver, after
being transmitted to the headend, processed and retransmitted down
.a forward channel, shall meet the specifications of (1) above.
5.13 Performance Testinct.
(a) Grantee shall perform all tests necessary to
determine compliance with the technical standard of FCC 76.601.
Tests shall include the following, as a minimum:
Pre-Construction Tests
Initial Proof of Performance
Annual Compliance Tests
Tests in Response to Subscriber .Complaints
Monthly Monitor Tests
Written records of test results shall be maintained, and
shall be available for. . Commission 'or . Grantor inspection upon
request.
-(b) The tests for the Residential Network shall be
performed periodically, at intervals of' no greater than every six
months, at . a minimum of 20 subscriber television receiver
connections located .throughout the. service area or, if this is not
practical, then at 20' other locations satisfactory to the
Commission _. At least :8 of these locations shall be. the far end of
the distribution trunk cables. The tests may be witnessed by
representatives of the Commission or . Grantor, and -written test
reports- shall be submitted to the Commission. The: Commission may'
conduct independent tests of the system for which the Grantee shall
pay the. cost and 'give its fullest cooperation. If more than 1.0% of
the locations tested fail to meet the performance standards,. the
Grantee shall be required to indicate what' correctve measures have
been taken, and 'the entire test shall -be repeated for at least 20
different locations. If a second test results. in failure of more
than 1.0%, the Commission may at its sole option reduce subscriber.
FRANCHISE AGREEMENT - Page 28
rates due to degraded service, unless the circumstances of the
failure are caused by condition& which are beyond the Grantee's
control, as determined, acknowledged and verified by the
Commission.
5.14 Narrowcasting Capability. The'.residential system shall
have, the capability to direct programming to subscriber's, whether
residential or agency, within the jurisdiction of each Grantor,
notwithstanding that the same cable system serves the jurisdictions
.of other Grantors herein. The system `shall also have the
capability to provide discrete programming among agency
subscribers+; as well as other subscribers.
FRANCHISE AGREEMENT - Page 29
SECTION 6: SERVICE AND PROGRAMMING
6.1 Initial Services and Proarammincr. Grantee shall provide-,
as a• minimum, the initial services and programming listed in this
Section. If any listed service shall become unavailable, or, cannot
be provided under existing FCC regulations, Grantee shall provide.
substitute programming considered by the Commission to be at least
as attractive. to cable system subscribers. Grantee shall not
reduce 'the number of program services without . prior written.
notification. to and approval by Grantors.. Grantee may add new
services at any time, subject to Grantor approval of any -new rates
or rate increase necessitated by the added. services. Grantee may
combine programming into composite channels to improve efficiency
of channel utilization or to attract a larger viewing audience.
In enforcing this Section, the Commission shall limit itself
to reviewing changes in the programming provided by. Grantee to
determine whether the mix, quality, and level of services
originally .provided will be maintained after any modification
unless the Grantee requests . and the Commission agrees that a
variance from the original, mix, quality or level of service is
appropriate.
6.2 Basic Subscriber Television Services. Grantee shall
provide Basic Subscriber Television Services in three price tiers.
In addition to the services set forth in the proposal for the
Universal Service and Tier 1 Family Service, Tier II Basic Service
shall include, as a minimum, all of the following:
(1) Carriage of all Portland area television broadcast
stations, including:
Channels 2, 6,81 10, 12 (Portland)
Channel 3 (Salem)
Channel 49 (Vancouver, Washington)
(2) Carriage of four (4) non-local television broadcast
stations:
MTV, Toronto, Canada
WGN, Chicago (Ch. 9)
WOR, New York (Ch. 9)
WTBS, ' Atlanta (Ch 171
(3) -Carriage of twenty-seven (27) video programming services
distributed by communications satellite:
ABC Arts
American Educational Television Network (AETV).
Appalachian Community Service Network (ACSN)
BETA
Black Entertainment Television (BET)
Cable News Network (CNN)
Cable-Satellite Public Affairs Network (C-SPAN)
Catholic Television Network (CTN)
CBS Cable
Christian Broadcasting Network (CBN)
FRANCHISE AGREEMENT - Page 30
Entertainment and Sports Programming Network (ESPN)
Health Channel
Jewish Television Network (JTN)
Las Vegas Live
Modern Satellite Network (MSN)
Music Channel
National Christian Network (NCN)
New Prime Time —CineAmerica (NPT)
Nickelodeon
Public Broadcasting- Service Networks 2 & 3
Satellite Program Network (SPN)
Silent Network
Spanish International Network (SIN)
Storer Washington News Bureau
Television for All Children (TVAC)
USA . Network (Madison Square Garden/Calliope/English
Channel/You)
Women' s Channel
(4) Carriage of Twenty-six (26) alphanumeric programming .
services:
Associated Press Newscable
Associated Press Sportwire
Calendar Events
Community Service Clearing House
Consumer Factbook
Educational Bulletin Board
Government Parks & Recreation Bulletin Board
Job Bank
Library Link
NOAA Weather Updated
Oregon Newsletter
Program Marquees (8)
Program Guide
Public Access Program Guide
Radar Weather
Regional Bulletin Board
Tickertape/Financial News
Transportation Pickup
Video Lexicon
(5) Carriage of sixteen (16) video channels reserved for
Commission use (15 channels downstream and 2 channels
upstream, ultimately. reserved but being -utilized at
present)
Hearing Impaired Service*
Our Town Discrete Access *
Educational Access (2 channels)
Governmental. Access
Public Access
Regional Interconnect
Environmental Report
Community Services Clearinghouse
Minority Services/LA Gaceta
FRANCHISE AGREEMENT - Page 31
Interfaith Programming *
Local Organization
Public Affairs Polling *
Video Lexicon
Library Link
Senior Citizens -Access. *
* Composite with other programming
Tier III (interactive) service shall include all Tier II
programming, and in addition' the following:
(1) Interactive capability for home .banking, home shopping,
energy management, information retrieval and other
advanced services.
(2) Teletext services.
6.3 Pay Television Services. In addition to the basic
Subscriber. Television Services, Grantee shall offer the following
optional pay-television services or equivalent .programming of the
same general class to the extent it is available:
Bravo
Cinemax
Home Box Office
Home Theater Network
Rockefeller Center Television
Showtime
The Movie Channel
6.4 Interactive Residential Services.
(a) Grantee willintroduce, market and- operate on the
Residential Service Network any interactive service at-the time the
Commission and Grantee jointlydetermine it .is operating profitably
on •20.% of the interactive capable cable. televis ion :systems. in the
United States. To determine if-the .service is being , provided
profitably, the Commission and Grantee. wil'l survey .-to determine
that the interactive cable service. If a third party, is necessary
to. provide an interactive, service and Grantee, in . good faith is
unable- to secure the third party, the Commission sha1Y'=waive this
requirement per Section 4.7.
(b) Grantee will report to the Commission at its first
meeting after July' 1st. each year . on its efforts : to develop
interactive services :and their financial. viability..
(c) Upon introduction of an -interactive service., the
service will be available to all areas of the franchise territory.
Experiments and demonstrations may take place in 'areas smaller than
the entire franchise territory:,
FRANCHISE AGREEMENT - Page 32
6.5 Leased Channel Service. Grantee shall offer leased
channel service on a non-discriminatory, first-come, first-served
basis. Grantee shall not use its position :as-: a cable television
system operator to refuse leased channel service to any. applicant
who may wish to offer a service competitive with services offered
by Grantee.
6. 6 Basic Subscriber Radio Service. Grantee shall provide
Basic Subscriber Radio service including the following:
21 local FM radio stations
WFMT, Chicago
Life Style
Satori Network
NCN "Family Radio"
JISAL (religious)
Spectrum
Satellite Radio Network
Retransmission of shortwave broadcasts from:
BBC =t
- Radio Luxembourg
- The Voice of America
- Radio Free Europe
Audio quality. enhancement of all ABC,, '. CBS, NBC, and
premium television programming.
Radio reading services for the blind
Radio Access
Pay-per-listen
6.7 Institutional'Network Service. With the exception of the
demonstration projects proposed' by Grantee, all proposed services
within the: technical, financial and geographical capacity of the
institutional network shall 'be offered to all institutions on a
nondiscriminatory ' basis provided, however, that Grantee upon
notice to Grantor shall be entitled to establish reasonable
classifications of subscribers and users.'„ Services shall include,
but not be limited to, video, data and telemetry communications,
with either one-way or interactive transmission.
6.8 . Demonstration. Proiects. Demonstration projects on the
Public Communications Network shall be performed in 'accordance with
a timetable and program established by the Commission.
6.9 Public Communications Network. Grantee's obligations to
provide institutional network ,service to public agencies, public
and private educational institutions and to hospitals will be
accomplished by. the utilization of the separate system referred to
in Section 5.5 and, hereinafter referred to as the Public
Communications Network or Network. Service on the Network shall be
subject to the following conditions:
1. Any demonstration projects carried out pursuant to
Section 6.8 will be funded by the Commission . and not by
Grantee.
FRANCHISE AGREEMENT - Page 33
2. Subject to Section. 6.1.0, Grantee may cease operation of
the Public Communications Network on or .after July 1, 1990.
3. Subject to Section 6.10, Grantee may cease operation of
the Public Communications Network on September 31, 19881 if
the Commission, in the reasonable exercise of its judgment,
finds that Grantee has operated the Network consistent with
all terms and conditions of the Franchise Agreement as,amended
and that Grantee has demonstrated that'. the revenues derived
from the operation of the Network are substantially less than .
the costs of operation and that there is little likelihood
that such revenues will equal or exceed the costs of operation
by July 1, 1990 . The Commission will, ' if requested by
Grantee, make this determination no later than July 1, 1988.
6.10 Commission Operation Of Public Communications Network.
On or after July 1, 1990, after giving the Commission 180 . days
notice of its, intent to do so, Grantee may cease. operation of the
Public Communications Network provided that it offers to give title
and control of the Network to the Commission. If the Commission
shall, pursuant to Section 6. 9 (3) , determine that Grantee may cease
operation of the Public Communications Network on September 31,
1988, Grantee shall also offer to give title and control of the
Network to the Commission. The terms and conditions of such offers
shall include granting to the Commission full title and control of
all Network cable plant, electronics, head-end gear and drops to-
any public locations being provided with service along with any
accompanying equipment already in place at such locations. In
addition, Grantee will guarantee that the Commission or its agents
shall have . the right to ., any . necessary access to any equipment
located in any facility owned. or operated by the. Grantee.
Upon receipt of such notice by the Commission, the .Commission
will determine within 90 days whether. it is willing to accept the
offer. If the ','Commission ;agrees to accept the offer, _it shall
promptly notify the ,Grantee.`in 'writing o'f its acceptance and the
parties will then take all;. necessary steps to effectuate an orderly
transfer of the Network to the Commission. Pending the full
transfer of the Network to the Commission, Grantee shall continue
to operate the Network and guarantee continuation of service to: all
customers in good standing.
6.1.1 Public Communications Network Performance Standards.
Grantee's operation of the 'Public Communications Network shall. be
subject to the. -following; performance standards:
1. The. Network` will be, operated. consistent with the
technical specifications set,. forth in Section 5.1'2' of this
Agreement.'
2.. . Grantee will provide a +15dbmv (+ or - 2dbmv) video
reference on pilot carrier 301 .25 at. the line .of_demarcation
for all Network users.
FRANCHISE AGREEMENT - Page 34
3. Grantee will install, proof and activate cable at any
user sites within 60 days of a request for use of the -Network
by any public user..
4. Grantee shall maintain a repair force of technicians
capable 'of responding promptly to all request for service by
Network users.
5. Grantee shall 'provide, at a minimum, service and repair
according to the following response times-. During normal
working hours (Monday —Friday, 8:00 a.m. - 5:30 p.m.) , the
response shall - not exceed 2 hours, except. for extraordinary
circumstances relatedto Network operations and maintenance.
During non-working hours , the response shall not exceed' 6
hours. Response shall mean a technician is -working on the
Network in an effort to correct the service problem.
6. Grantee will operate the Network with due diligence.
7. Grantee will comply with the Network Management Operation
and Maintenance Plan attached as Exhibit J hereto which will
govern operation of the Network unless the Commission shall
agree to amend or terminate the Plan.
FRANCHISE AGREEMENT - Page 35
I
SECTION 7 : RATES,- AND CHARGES.
7.1 Initial Rates and Charcres. Commencing with the effective
date of this franchise agreement, the Grantee . is entitled to .
initial rates and charges for services provided to subscribers on
the cable communications system. The initial rates and charges are
as set forth, below, in this section.
7.2 Basic Service - Residential Subscribers. The initial
rates and charges . for basic service to .residential. subscribers
within the initial service area shall not exceed the following and
shall be subject to the. specific waivers of installation charges,
reductions of rates and ',exemptions from charges .and rates for
subscribers contained in the proposal. '
Installation Monthly
Universal Service (12 Channels) Charge Rate
First .TV Outlet .$14 . 95 No charge
Tier I (29 Channels)
First TV Outlet $15. 95 $4 .75
Additional TV Outlets, each 10.00 2 . 00
FM (with TV) 10.00 2. 00
Converter (no deposit charge) No charge No charge
Relocation 10. 00 ----
Reconnection 10.00 ----
Installation Monthly
Tier II (52 Channels) Charge Rate
First TV Outlet $24 . 95 $7 . 95
Additional TV Outlets, each 10.00 3. 95
FM (with TV) 10 .'00 2. 00
Converter No charge No charge
Relocation 10.00 ----
Reconnection 10. 00 ----
Tier I'II (Interactive)
First-.TV Outlet $39.95 $9. 95
Additional Outlets (Interactive) 10.00 4 .95
Additional Outlets (Non-
Interactive) 10 .00 3.95
FM (with TV) 10.00 2.00
Converter No charge No charge
Relocation 10.00 ----
Reconnection 10 .00 -
7.3 Basic Service Apartment. . Commercial and' Public
Facilities. The initial rates and charges for basic service within
the initial service area to apartments, commercial organizations
and public facilities shall not exceed the following:
FRANCHISE AGREEMENT - Page 36
Installation Monthly
Apartments - Bulk Rate Charcare Rate
First. Outlet Cost S a m e a s
residential
rate
2 - 10 Outlets Cost 10% discount
from residential
rates.
11 - 20 Outlets Cost 15% discount
from residential
rates
21 - 30 Outlets Cost 2.0% discount
from residential
rates
More than 30 Outlets Cost 25% discount
from residential
rates
To qualify for bulk rates, the apartments must have one
hundred percent '(100%) subscription and single billing address.
Installation Monthly
Apartments- Bulk Rate Charge Rate
First Outlet Cost S a m e a s
residential
rate
2 - 10 Outlets Cost 10% discount
from residential
rates
11 - 20 Outlets Cost 15% discount
from residential
rates
21 - 30 Outlets Cost 20% discount
from residential
rates
More than 30 Outlets Cost 25% discount
from residential
rates
Tax Supported and
Non-Profit Institutions Installation Monthly
All Tiers Charcre Rate
First Outlet Cost S a m e 'a s
residential
rate
2 - 10 Outlets Cost 1.0% discount
from residential
rates
it 20 'Outlets Cost 15% discount
from 'residential
rates
FRANCHISE. AGREEMENT - Page 37
I
21 - 30 Outlets Cost 20% discount
from residential
rates
More than 30 Outlets Cost 25% .discount
from residential
rates
Installation chargesfor tax supported and non-profit
institutions shall be in accordance with the following formula:
Drops or extensions necessary to provide service
will be at Grantee's expense for the first 300
feet. The user and Grantee will share the cost on
a 50/50 basis for an additional 300 feet. The cost
-of any construction necessary beyond• 600 'feet will
be the responsibility of the user.
The amount of cable construction as measured in. feet which is
the basis for the cost sharing formula will be computed as follows:
Start at a point on the property of the public
institution adjacent to the public right-of way
nearest to the point where there is cable
television plant . capable of being tapped for
service and which is nearest to the point of entry
into the facility. The actual length of cable
needed to extend from the starting point to line of
demarcation within the facility shall be the total
number of feet. The cost of the project from the
starting point to the line of demarcation shall be .
divided by the total number of feet. The resultant
cost per foot shall be used to compute each party' s .
share.
7.4 . Pay-Television Service. The initial rates and channels
for pay-television services within the initial service area shall
not exceed the following and are subject to the specifyc waivers of
installation charges and- reductions. . in rates for multiple pay.-
television services as set forth in the proposal.
Installation Monthly -
Charcfe Rate
Home Theater Network $10.00 $3..95
Home Box Office 10.ooi 6.95
Showtime 10.00 6_95
The Movie Channel 10.00 6.95
Bravo 10.00 6.95
Cinemax 1;0.00 6'.95
Galavision 10 .,00 6. 95
Pay-per-View 10..00. Varies per
Event
FRANCHISE AGREEMENT - Page 38
1
7.5 Security Alarm Monitoring Service. The initial
installation charges and rates for home security alarm monitoring
services shall not exceed the following:, -
Installation Monthly
Options Services Charge Rate
Basic Package Fire, Medical, Police $99.95 $15.00
Expanded
Intrusion
Package Multiple Sensors Varies Varies
Help- Service No charge 5.95
7. 6 Interactive Services. The initial installation charges
and rates for interactive services within the initial service area
shall not exceed the following:
Installation Monthly
Service Charge Rate
Opinion Polling and Requires No -Charge
Shop-at-Home subscription
to Tier III
Dow Jones Data Retrieval Requires
subscription
to Tier III
$49.95 $35.00
Pay'-per-View Requires Varies
subscription with use
to Tier III
- Computer Hobbyist Requires Varies
subscription with use
to Tier III
7.7 Studio and Equipment Usage. Grantee shall not exceed the
following initial rates for access studio and video equipment use:
(1) Non Commercial Users Rates
All Services No .Charge
Training No Charge
(2) Commercial Usage Determined by
specifics of
All Services equipment and
time required
7. 8 Institutional Services.
FRANCHISE AGREEMENT = Page 39
(a) Rates and installation charges for use of the
institutional system designed for business and industry use as
described in Section 5.5 shall be established at the sole
discretion of the Grantee.
(b) The rates for use of the institutional system
designed for use by government and non-profit users (the Public
Communications Network) are established.in* the attached Exhibit I.
These rates may be adjusted annually by Grantee in accordance with
the formula set forth in Exhibit I .
(c) Installation charges for use of the Public
Communication 'Network by public agencies, public and private.
educational institutions. and hospitals will be computed on the
following basis:
Drops or extensions necessary to provide service will .be
provided free of charge by Grantee up to a distance of 300
feet. The user and Grantee will share the cost on a 50/50
basis for an additional 300 feet. The cost of any
construction necessary ' beyond 600 feet will be— the
responsibility of the Public Communications Network user..
The amount of cable construction as measured in feet
which is the basis for the cost sharing formula will be computed as
follows:
Start at a point on the property of the public institution
adjacent to the public right-of-way nearest to the point where
there is cable television plant capable of being tapped for
service and which is nearest to the .point of. entry into the,
facility. The actual length of cable needed to extend from
the starting point to the line of demarcation within the ,
facility shall be the total number of feet. - The cost of the
project from the starting point to the line of demarcation
within the facility shall be the total number of feet. The
cost of .the project from the starting point to the line of
demarcation shall be divided by, the total number- of feet. The
resultant cost per .foot shall be .used to compute each party's
share.
7.9 Maintenance of Initial Rates. Grantee shall not request
any increase in the initial •rates -for basic services for a period
of thirty-six (36) months from the• effective date of, this franchise
agreement and shall not implement any allowed rate -increase prior,
to forty-two'. (42) .months from the effective date of this franchise
agreement. Grantee shall not increase pay-televisiozi rates, prior
to the expiration of thirty (30) months from the effective- date of
this- franchise -agreement, notwithstanding FCC` or other preemption
of rate regulation. Upon the expirationof the, forty-two' (42)
month .guarantee for basic service rates,. the rates and charge's for
any services for which 'rate regulation is not preempted at that
.time by the FCC shall be subject to -regulation by the commission.
FRANCHISE AGREEMENT - Page 40
SECTION 8: REGULATION OF FRANCHISE
8.1 Intent. Grantors are member units of local government in
the'"Commission through an Intergovernmental Cooperation Agreement
(hereafter 'ICA) ,, ;and following the effective date of this franchise
agreement, the Commission, ` for the term of. *the' franchise shall
provide for the day-to-day administration and enforcement of the
provisions of this franchise. The jurisdictions which are members
of the Commission are the fourteen Oregon municipal corporations
(cities) of Banks, Beaverton', Cornelius, Durham, Forest Grove,
Gaston, Hillsboro, King City, Lake Oswego, North Plains,
Rivergrove, Sherwood, Tigard, Tualatin, and Wilsonville, and the
one county of Washington County, a political subdivision of the
State of Oregon.
8.2 Commission Regulation. The Commission, acting on behalf
of the Grantors, shall have responsibility for regulation in the
following areas:
(a) Administering . and enforcing the provisions of this
franchise agreement adopted by each Grantor as its own, including
the adoption of administrative rules and regulations to carry out
this responsibility.
(b) Coordination of the operation of government and
educational channels;
(c) Interfacing the Grantee's technical, programming and
operational assistance and support to public agency users, such as
city .departments, schools and health care institutions;
(d) Establishing procedures and standard .'for public
institutional operations and services, use of dedicated channels,
and sharing of public facilities;
(e) Planning expansion and growth of public cable
services;
(f) Analyzing . the possibility of and developing a
program for integration of public aspects of cable communications
with other city, state or regional cable communications networks;
(g) Formulating and recommending long-range cable
communications policy for the franchise area;
(h) Disbursing and utilizing. franchise revenues paid to
. the Grantors through the. Commission; and
(i) Administering the regulation of rates, including
considering. requests for rate adjustments by Grantee.
FRANCHISE AGREEMENT - Page 41
8.3 Public and Community Access Program.
(a) Purpose. The: public, and community access channels
shall be governed by. the . Commission or a designate of the
Commission in order to ensure that these .channels will be free of
censorship, open to all residents of the franchise area and
available for all forms of public expression, community
information, and debate on public issues.
(b) Commission Operation and` Grantee Support of Access.
and Local Origination Procrramming. The .Grantee has requested that
the Commission provide certain services to the 'Grantee, i.e. , the
operation of all 'access and local origination programming . The
Commission has agreed to operate such programming, either directly.
or by ;contract, commencing July 1, 1988, in reliance upon the
Grantee" s promise' of support,, as follows:
(1) Grantee will provide funding for access and local
origination programming. for the,,
he life of this Franchise Agreement.
The amount and timing of such payments shall be' as follows:
(i) From July 1, 1988, to June 30, 1992, $340, 000
per year, payment to be made in equal installments on the first of
each calendar quarter beginning July 1, 1988 .
(ii) In July of 1991, an evaluation committee shall
be formed to determine whether the Grantee' s contribution for
access and local origination programming should increase or
decrease as of July 1, 1992, provided that, unless the parties
agree otherwise, the funding level shall not increase or decrease .
more .than $50, 000 in any one year. The evaluation committee shall
also consider the. level of the Grantee' s support under subsections
8 .3 (b) (4) and 8 .3 (b) (7) and shall retain or adjust that level of
support in accordance with the evaluation criteria established
pursuant to• subsection 8.3 (b) (1) (iii) . The evaluation committee is
to be composed of three members chosen by the Commission, three
members chosen by. the Grantee, and a seventh member, chosen by the
othersix members. In the event. that the other six members cannot
agree on. the selection of, the seventh member, the Commission and
the Grantee shall 'each present the names of two nominees ..to the
Presiding Judge of the- Washington iCounty Circuit .-Court.'' . The
Presiding Judge shall select the seventh member of the evaluation
committee from among the four nominees'. The Presiding Judge's
selection shall be based on his or her determination as to` the
nominee most likely to be knowledgeable and objective in performing
the .evaluation committee duties.
('iii) ;The. evaluation criteria to be used by the'
evaluation committee shall be the criteria 'as established and
agreed to by the Commission and the Grantee's- parent company,
Columbia Cable of Oregon, prior to the adoption .. of these
amendments .
FRANCHISE AGREEMENT - Page 42
Uv) The decision of the .evaluation committee
regarding the Grantee's funding support for. access and local
origination programming from July 1, 1993.1 for the duration of this
Franchise Agreement shall be binding on all parties and there shall
be no challenge . or appeal -- ' administrative, judicial, by
arbitration, or otherwise.
('2) The Grantee or its parent. company, Columbia Cable of
Oregon, shall pay to the Commission $49.,000 at the time of the
change in control of Willamette Cable TV, Inc.., whereby Willamette
will become a corporation wholly owned by Columbia Cable of Oregon.
The $49, 000 payment will represent the difference between the
Grantee's cost of operation of the access and local origination
programming for the period April, 1988 through June, 1988,
($36,000) , and the funding level that- has been negotiated by the
parties for that same period ($85, 000) .
(3) The Grantee will loan $100, 000 to the Commission at
the time of the change in control of Willamette Cable TV, Inc. ,
whereby Willamette will become a corporation wholly owned by
Columbia Cable of Oregon. This loan will be .without interest and,
shall be repaid over a period of five years, as follows:
Payment Due Each
Calendar Quarter,
Commencing
Payment Year Amount Due October 1, 1988
Year. #1 $10, 000:00 $ 2,500.00
Year #2 20,000.00 51.000.00
Year #3 20, 000.00 51000.00
Year #4 25, 000.00 6,250.00
Year #5 . 25, 000.00 6,250.0.0
The Commission shall make the above-described loan
repayments to the Grantee within five business *days following
Commission' s receipt of the Grantee's quarterly payments as set out
in Section 8 .3 (b) (1) .
(4) * Facilities .
(i) Tigard studio facilities. Grantee shall
provide the Tigard studio facilities to the Commission rent free
for four years, possession commencing July 1; 1988. The premises
will be turned over to the Commission in clean and good operating
condition. . The Commission shall pay . all utilities, building
maintenance,, and shall provide liability insurance for the premises
and .property insurance for equipment and contents. The Commission
shall. be responsible for the maintenance of the facility, including
landscaping and grounds.
In the event that the facilities become unavailable
for any reason, the Grantee shall provide to the Commission
equivalent facilities at the Grantee's cost.
FRANCHISE AGREEMENT - Page 43
(ii) Local Oricrination/Master Center. The
Commission' shall be entitled to use of the local origination/master
center studio and offices for four years, possession. commencing
June 1, 1988. Grantee shall turn over the premises to the
Commission in clean and good operating condition. The Commission'
will provide liability insurance and property insurance on the .
equipment and contents in the local origination portion of the
building. The Commission shall pay its appropriate share of -the
utilities, and shall share equally the cost of the maintenance ,of.
the heating/air conditioning,system and the cost .of the maintenance
of landscaping and grounds.
(iii) The Commission may remodel either of the
facilities as needed, at the Commission"s cost. Fixtures will
remain with the buildings and shall. become the property of the
Grantee. The Commission will remain the owner of and shall be
entitled to remove equipment that does not become affixed to the
property.
(5) Television Production and Studio Equipment. Grantee
shall transfer to the Commission all of its title and interest in
all television production and access and local origination studio
equipment and production equipment (mini-mobile) , excepting only
that equipment to be designated by the parties prior to the
execution of these amendments to the Franchise Agreement. The
Commission will take possession and will receive title to such
equipment between June 1, 1988 and July 1, 1988. The equipment,
with spares, will be provided by the Grantee to the Commission in
good repair and with all operation and service . manuals. The
Commission shall assume maintenance responsibility for all
equipment.
(6) Production Vans. The Grantee shall transfer to the
Commission all right and- title to both of the Willamette production
vans. The vans and related equipment will 'have been recently
serviced, in good repair, and will be provided with all maintenance
and service manuals. The- transfer -shall be no later than the "15th
day of June, 1988-. The Commission shall become responsible for
maintenance and operation of the vans upon'the'.transfer of title.
(7) - Promotional Services. The Grantee shall-provide, at
no cost to the Commission, -ten 30-second advertising availabilities
per month for. a period of -four years. Some•of these ava'ilabilities.
shall be prime time.
The-" Grantee shall. allow the Commission. to include.' one
bill • stuffer .of the Commission' s choice .per year. f The Commission
shall be responsible-'for-the cost of printing its' bill stuffers.`
FRANCHISE AGREEMENT - Page 44
(c) Grantee' s Assurance to Support and Defend the
Commission' s Operation of Access and Local Origination Programming.
(1) The Grantee understands that the Commission would
not have agreed to the Grantee's request that the Commission assume
the responsibility for the 'operation of access and local
origination programming without the Grantee's assurance that the
Franchise Agreement provision regarding the Grantee's support
therefor, subsection 8..3 (b) is enforceable under federal and state
law and will not be construed to constitute a franchise fee or tax
payment for any purpose.
(2) The Grantee will not assert that the payments set
out in subsection 8.3 (b) are not enforceable under .federal or state
law or that they constitute a franchise fee or a tax payment.
(3) The Grantee agrees to defend and hold harmless the
Commission and the Grantors against any challenge to the legality
of the payments set forth in subsection 8 .3 (b) or any effort to
characterize those payments as a franchise fee--or as a tax.
(4) If any provision of subsection 8 .3 (b) is deemed
unenforceable under federal or state law or is deemed to be a
franchise fee or tax payment, these Franchise Agreement amendments,
to the extent that they transfer responsibility for access and
local origination programming. to the Commission and establish
Grantee' s support therefor, will be of no force or effect and the
Franchise Agreement provisions that they replace will automatically
take effect and will control. In such an event, the Commission
shall retransfer to the Grantee the premises and property set forth
in subsection 8.3 (b) and the Grantee shall accept responsibility
for and shall resume operation of access and local original
programming as though these Franchise Agreement amendments had not
been executed.
8 .4 Rate regulation.
(a) Commission Considerations. The Commission., subject
to the terms and _conditions of this franchise agreement, shall
regulate rates on behalf of Grantors. The 'Commission, on its own
may initiate rate reduction proceedings as it deems it necessary to
carry out the purposes of this. agreement. Grantee, if it desires
to seek a rate increase, shall make its request ' n writing to the
Commission. In considering a request for rate increase, the
Commission may consider, inter alis, any or. all of the following
factors in determining whether to approve in .whole or, in part,
modify or deny Grantee' s request.:
(1) Grantee's substantial fulfillment of all
material requirements of the franchise;
(2) Quality of .s.ervice, .as indicated by the number
and type of service complaints, Grantee's.
response to complaints, and the results of
periodic system performance tests;
FRANCHISE AGREEMENT - Page 45
(3) Prevailing rates for comparable services in
other cable systems of similar size and
.complexity;
(4) .Rate of return on Grantee Is. financial
investment and; equity, as_ compared to
business'es. of equivalent risk. however, the
costs .incurred, in the acquisition by grantee
of the assets, . tock or control of .any person
having an interest in. Grantee. shall not be,
included in the financial . investment and
equity and shall not .be a proper basis for an
increase in rates. The. rate of •return shall.
be calculated on a cumulative basis for all
system revenues and cost, including services
such .as .pay-television that may be exempt from
local rate regulation. The Grantee, upon
request from the Commission, shall provide all
information necessary to, .determine system
revenues and costs;
(5) Performance of Grantee in introducing new
services and expanding the cable system's
capability, as compared to other systems of
similar size and complexity;
(6) Performance by Grantee in support . of the
public and community access program of the
Commission;
(7) Performance by Grantee in accordance with the
provisions of Section 4.7 and Section .5. 6 of
this franchise agreement; and
(8) Expenses ,and costs incurred by. Grantee. because
of the obligation of the Grantee to commence
construction. of and test market' entertainment.
services under Section 4 :2- (b), shall not be a
proper basis for any request for , rate
increases
(b) Change in Rates. Increases in rates following-
expiration ..of the period of guaranteed rates agreed to by Grantee
.for services and required by section 7'.9 herein, shall be requested
no more often than annually. by Grantee. upon receipt of a rated, . .
.increase request, the Commission shall schedule' a public,hearing,
newspaper . of .general circulation in the franchise area, .:together
with any other notice deemed appropriate. by the Commission, at
least ten days prior to the date of hearing The `Commission shall
be entitled to relevant financial and other . information. from
Grantee. necessary to determine the- justification for the
deliberations . from time to time. : . The. Commission',' by resolution,.
may approve the request in full, approve .the request in part, or
disapprove the request.
FRANCHISE AGREEMENT - Page 46
8.5 Remedies for Franchise Violations.
(a) In addition to the penalties for delays in
construction as specified in Section 4.3 of this franchise
agreement, the Commission has the right to and may impose the
following penalties in the event Grantee violates any other
provision of this franchise agreement, subject to Section 8 .5 . (c) ,
below:
(1) Impose a financial penalty, not to exceed One
Thousand dollars ($1, 000) , per day or per
incident, for Grantee's violation of this
franchise agreement.
(2) Require Grantee to make rate rebates or
payments to the customers or classes of
customers in such amount and on such basis as
the Commission may deem reasonable; and
(3) Require Grantee to correct or otherwise remedy
the violation prior to any rate increase
becoming effective.
(b) In determining which remedy or remedies for
Grantee's violation are appropriate, the Commission may take into
consideration the nature and extent of the violation, the, remedy
deemed appropriate to prevent such violations in the . future,
whether the Grantee has a history of previous violations of the
same or similar kind, and the like.
(c) Within ten (10) days after receipt of a written
notice of a violation from the Commission, Grantee may request in
writing a hearing before the Commission. Grantee shall set forth
in detail in the request for hearing the specific basis for its
appeal of. the notice of violation. The Commission shall consider
the appeal and, if the appeal is denied and a material violation of
this agreement is found by the Commission to exist, assess the
appropriate penalty or remedy against Grantee.
(d) Grantee acknowledges that damages at law may be an
inadequate remedy for violations bf the franchise and agrees that
Grantor may obtain injunctive relief or specific performance to
enforce the provisions of this franchise agreement.
8.6 Public Disclosure. Subject to the Oregon Public Records
Law, whenever, pursuant to this. franchise agreement, Grantee shall
make available for inspection by the Commission or .submit to the
Commission reports containing information considered proprietary by
the Grantee, the Commission shall not disclose .or release such
reports or information to the public without Grantee' s prior
written consent.
8.7 Consumer Protection Standards and Penalty
Guidelines
FRANCHISE AGREEMENT - Page 47
FRANCHISE AGREEMENT - Page 48
a. Telephone Answering
1 . Standard of Performance. The Franchise
Agreement provides in section 13.4 (a) :
"The Grantee shall maintain an office in the
franchise territory which shall be open during all usual
business hours, have a publicly listed toll-free
telephone, . and be so operated to receive subscriber
complaints and requests for repairs or adjustments on a
24-hour basis. A written log shall be maintained listing
all complaints and their. disposition."
Incoming calls shall be answered within three
minutes 90% of time during any one hour time period.
"Answered" means that- the caller speaks to an employee of
the Grantee. Grantee will meet or exceed the 90%
standard in meeting the telephone answering requirements
of Section 13.4 (a) of the Franchise Agreement . The test
for compliance will be whether an open incoming telephone
line is availabl6, 90% of the time during any one hour and
whether calls are picked up by an employee within three
minutes .
2. Monitoring Procedures . Commission staff will
monitor consumer complaints it receives and will
periodically check the availability of open telephone
lines.
The commission will request, pursuant to Section
13.3 (e) , reports from Grantee on telephone utilization.
3.. Penalty Standards. The Commission shall
impose penalties for violation of the telephone answering
standards, except in cases where the system has suffered
an outage or other disruption affecting trunks or
distribution feeders or some occurrence has caused
similar service . related problems to a number of
subscribers. The Commission may at its discretion, waive
or reduce penalties if timely and appropriate corrective
action is taken.
The following are guidelines for the Commission in
setting penalties. The dollar amounts set forth are intended as
guidelines for the maximum amount to be imposed absent egregious
circumstances or changes in the value of the dollar based on
inflation. If the 90% standard is not met during one or more one
hour periods during a single day, a single violation will be deemed
to have occurred.
(A) One violation to nine violations in any one
month.
PENALTY: . $50.00 per violation.
FRANCHISE AGREEMENT - Page 49
(B) Ten or more violations in any one month.
PENALTY: $100 per violation for all
violations during the month.
(C) Violations as specified in (1) or (2) and
continue over a two month period and
notification had been given of the first
month's violation.
.PENALTY.: Double Monetary Fines.
(D) Violations .as specified in (1) or (2)
continue over a, three month period and
notification had 'been given of violations in
months one and two.
PENALTY: Triple Monetary Fines.
(E) Violations as specified in (1) or (2) continue
for a period of four or more
months . and notification had
been given of violations in
months one, two and three.
PENALTY: Triple Monetary Fines
Consider Franchise Revocation
(b) Customer Service Response
1. Performance Standards. The Franchise Agreement
states in Section 13.4 (c) :
"The Grantee shall maintain a repair force of
technicians capable of responding to subscriber
complaints or requests for service within 24-hours
after receipt of the complaint or inquiry. No
charges shall be made to the subscriber for this
service. "
Grantee shall respond to a complaint for request for
service within 24-hours of a request. For a subscriber
with a , construction or technical problem, a response
means a Grantee representative will correct or attempt to
correct the problem within 24-hours of a request. The
commission shall apply this standard to all. requests for
repairs or correction of technical problems. Requests
for added or changed services packages, such as add or
drop channels, additional outlets, etc. , are not subject
to this 24-hour response time.
A subscriber can voluntarily elect to extend the
response time requirement beyond 24-hours.
2 . Monitoring Procedures . The Trouble Call
reports provided to the Commission pursuant to Section
13.3 (a) shall be used to monitor this standard. Grantee
shall indicate on the Trouble Call report those
subscribers requesting service who voluntarily elect to
FRANCHISE AGREEMENT - Page 50
extend the response time requirement beyond 24-hours.
The Commission will review all reports.
3. Penalty Standards. The following are
guidelines for the Commission in setting penalties. The
dollar amounts set forth are intended as guidelines for
the maximum amount to be imposed absent egregious
circumstances or changes in the value of the dollar based
on inflation.
(A) If the 5% or greater, but less than 10% of
the monthly requests for service exceed the
24-hour requirement.
PENALTY: $10.00 per violation.
(B) If '10% or greater, but less than 15% of the
monthly requests for service
exceed the 24-hour requirement
PENALTY: $20 .00 per violation.
(C) If 15% or greater of the- monthly requests for
service exceed the 24-hour requirement.
PENALTY: $30 .00 per violation.
(D) In computing compliance or violation of these
standards the following mathematical formulas
will be used.
(a) 12 z .05
T1
This determines if the 5% threshold is
exceeded. if it is, penalties are
computed by formula (b) .
•(b) (T2 - 'T3) X P = $.
T1 = Total service calls per month.
T2 = Total service calls per=-month in
excess of 24-hour response requirement.
T3 = 5% of total service calls
per month.
P = Dollar penalty - for penalties .
(A) O, (B) and .(C) above. The dollar
penalty is determined based upon the
quotient in formula (a) .
(c) Technical Specifications
(1) Performance standards. The Commission will
monitor system performance in order to insure subscribers
FRANCHISE AGREEMENT- Page 51
receive good quality television reception. The Franchise
Agreement in Section 5.12 contains specific standards for
technical quality.
(2) Monitoring Procedures. The Commission will
follow the provisions of Section 5.13 to test to
determine if technical - standards are being met. The
Commission will use Grantee's performance tests, or
independent tests authorized by the Commission. If the
operating standards do not meet the required technical
specifications, the Commission shall provide Grantee with
an opportunity to correct the problem. The Commission
will notify, Grantee of the non compliance. Grantee will
have 7 days to correct the problem and prove to the
Commission the problem is corrected. If corrective
action and proof of it are not made. within 7 days of
Grantee receiving the notification, the Commission may
enact . penalties.
(3) Penalty Standards. . Monetary Penalties shall
be applied based upon the degree and prevalence of the
deviation. Penalties shall increase in amount for
continued .violations. The Commission may also consider
rebates or payments to subscriber.
(d) Subscriber Hook-ups.
(1) Performance Standards. Section 4.2 (a) of the
Franchise Agreement states in pertinent part "Service
shall be offered to any requesting subscriber -no later
than 60 days from the date of request following the
energizing or activation of the system within any
specific areas. " This time period shall be the standard.
for all subscriber hook-ups with the additional
conditions as provided in Section 4.5 as amended also
applicable as provided ,for therein.
(2) Monitoring Procedures. The Commission will
monitor and investigate reports of violation of this
standard. A request will be deemed made on the date of
signing of a service agreement, receipt of funds by the
company, mailing of. a written request, or on the 'dat& of
a 'verified oral request.
_ (3) Penalty Standard. The penalty shall be up. to
$100.00 per day for every day over 60 days until. the
installation is completed, or the cost of installation,
whichever is more. Upon notification to Grantee that the
install was not made within the required time frame, the
Commssion'may, of its own accord, have the installation
made. The penalty in this situation shall equal the cost
`of the installation plus any administrative expenses.
FRANCHISE AGREEMENT - Page 52
I
SECTION 9: GENERAL FINANCIAL AND INSURANCE PROVISIONS.
9.1 Compensation.
(a). Franchise Fee. As compensation for the franchise to
be granted, and in consideration of permission to use the streets
and public ways of the Grantors for the construction, operation,
and ,maintenance : of a Cable Communications System within the
franchise area and: to defray the costs of franchise .regulation, the
Grantee shall pay. to Grantors through _the Commission an amount
equal to �five .percent (5%) of the Grantee' s gross annual revenues.
In .the event any slaw or valid .'rule or regulation limits franchise
fees.:below the five percent (5%) of gross annual 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
Grantee shall pay the higher amount up to a maximum of five percent
(5%) of Grantee' s gross annual revenues.
(b) Payment of Franchise_Fees.
(1) Payments 'due under this , provision shall be
computed and paid quarterly, for .the preceding quarter, . as -,of March
31, June 30, September 30, and December 31. Each quarterly payment
shall be due and payable no later -than thirty (30) days',after the
dates listed in the previous sentence. In order for the Commission
to : make proper distribution of revenues to each Grantor, a
quarterly report shall be made as hereinafter provided which shall
contain the relevant facts necessary for the Commission to allocate
revenues and. carry out the purposes of Resolution 81-4.
(2) No acceptance of any payment shall be construed
as accord that the amount paid is in fact, the correct amount, nor
shall such acceptance of payment be.construed as a release of any
claim Grantors • may have for further. or additional ', sums payable
under the provisions of this permit. All amounts paid shall be '
subject to audit and recomputation by Grantors.
, (c) Advance of Franchise Fees: Commencing on the date
of acceptance of this franchise agreement by Grantee- as to all
Grantors .and 'on the 1st day of, each fiscal year thereafter (which
is presently July 1, of each year) during. the first five fiscal
years, the Grantee shall pay as advance franchise fee payments. to
the Commission an amount, as requested by: the Commission, equal to
the estimated' reasonable cost ,of the Commission's. activities for
the ensuing fiscal year.. . In addition, the `,Grant.ee' s initial
payment shall include the- sum' of $' , to. cover the total -pre-
franchise
otal -pre-franchise costs. incurred . prior to the effective . date of this
agreement by Grantors, ihcludingt costs of, staff utilization :and
other actual .costs... At such time as annual franchise fees due to
the Grantors in any one year pursuant to Section 9.3 (a) , above,
shall exceed the total amount of the cost of commission activities
for a fiscal year, the amount paid will. be credited against the
franchise fee in an amount not to exceed twenty percent (20%) of
the total franchise fees paid each year until. the entire amount
FRANCHISE AGREEMENT — Page 53
annually advanced to Grantors is accounted for, provided that in no
event shall such credits be * used to reduce actual payments to
Grantors below the minimum amount specified in. .the Commission's
request for advance payments. for any fiscal year to fund the
estimated cost of. its activities. Any advance on. franchise fees
not actually expended by the Commission shall be retained and used
as an off set against any advance on franchise fee request for the
next fiscal year. •The Commission agrees to take whatever steps are
necessary under the circumstances to assure that total advances on
franchise fees by Grantee does not exceed the total aggregate five
percent (5%) franchise fee to be paid by Grantee during the fifteen
(15) year term of this franchise agreement. In the event such
advance payments exceed such aggregate fees, the Commission and
Grantors agree to refund to Grantee any excess sum.
(d) Alternative Means to Repay Advancement of Franchise
Fees. Grantee has advanced to Grantors a total of $193, 000.00 in
franchise fee payments - as of July 1, 1985. Notwithstanding the
provisions of paragraph 9'.2 (c) providing for a credit for such
advance payments Grantee shall continue to pay the full five
percent (5%) franchise fee each quarter until July 1, 1990 .
If Grantee operates the public Communications Network .until July 1,
1990 and if , Grantors have expended less than $193, 000.00 for.
demonstration projects pursuant to Section 6. 81 and 6. 9 (1), or for
the items listed in attached Exhibit B, then Grantee shall,
commencing with the first franchise fee -payment due after July 1,
1990, be entitled to commence to credit toward its franchise fee
payment, pursuant to paragraph 9'.1 (c) above, the difference between
$193, 000.00 and the amount actually expended. If,,. - however, Grantee
shall cease'operation of theNetwork prior to July 1,, 1990,, for any
reason whatsoever or if Grantors shall have expended an amount
equal to or greater than $193, 000.00 for the purposes set forth
. above, then Grantee shall not be entitled.to any credit against the
franchise fee otherwise due and payable and Grantee shall continue
to pay the full five percent (5%) franchise fee.
(e) Relief of Grantee's Obligation. .The. .Grantee agrees
that it will not request or demand modification or reduction. of any
of its obligations, financial or -otherwise, under this Franchise
Agreement, when :such request would. be based upon the. inability of
the Grantee or its principals or agents to otherwise meet debt
service obligations or other financial commitments, including any
inability to make a return- to equity holders on their investment.
9.2 Security Fund.
(a) Within thirty (30) days after the effective date of
this franchise transfer,, the -Grantee. shall deposit into a bank
account, established by the Commission and maintained through the
term of this franchise, the sum of One Hundred Thousand Dollars
($100,•000) , as security for the faithful performance by it of all
the provision's of .and its obligations arising under this franchise,
and compliance with . all orders, permits and directions of any
agency of a Grantor having jurisdictions over its acts 'or defaults
FRANCHISE AGREEMENT - Page 54
under this contract, and for the payment of any claims, liens and
taxes due the .Commission or a Grantor, or penalties imposed by.the
Commission, -which arise by reason of the construction, operation or
maintenance of. the system or pursuant to the terms of this
agreement: The Grantee shall be entitled-.to withdraw. for its own
uses -the interest earned on this deposit.
(b) (1) Within ten (10) .days after notice to it that
any amount has been withdrawn by the Commission from the' securty
fund.pursuant to, subsection (a) of this section, the Grantee shall
deposit a sum of money sufficient to restore, such security fund to
the original amount in the account at the time of withdrawal. ,
(2) Within ten (10) days after notice to it that,
any amount has been withdrawn by the Commission or any third party
from any amount, has
including principal and interest, posted
pursuant to subsection (a). of, .this; section by .any prior grantee,
the Grantee shall deposit a sum of money sufficient to restore such
security, fund to. the amount in the account at.. the time of
withdrawal. Provided that, if -there is . a withdrawal from .. a
security fund posted by a prior grantee, and such withdrawal is the
result•of a'third party' s claim.-and such claim is ,unrelated to the
Grantee and its performance under this - Franchise Agreement, the
Grantee'-s obligation to replenish the fund shall be limited to
$160, 000 .
(c) If the Grantee fails, after ten (10) days notice..to
pay- a Grantor any fees, - taxes or other amounts due and unpaid; or,
fails-to repay to a Grantor, or the Commission, within such ten (10)
days, any damages, costs or expenses which a. . Grantor or the
Commission shall be .compelled, to pay by reason. -of any act or
default of the Grantee.in•connection with this franchise; or, fails"
after thirty . (30) days notice of such failure by a Grantor to
comply . with any provision of the • franchise or meet . any -other
obligation specified under subsection. (a) 'of this section which the
Commission reasonably determines can be remedied by an -expenditure
of the security, Commission may immediately withdraw the amount
thereof, with interest and any penalties, from the-. security fund
fot, payment 'to a .Grantor, to the Commission or to any third party
as 'deemed appropriate by the Commission:. Upon such' withdrawal" the
Commission shall notify the Grantee of the amount and date thereof.
(d)• All security' funds deposited pursuant to this
section shall -become the property of, the. Commission in the event `
that. the franchise- is cancelled .by reason of the default of the
Grantee or revoked for cause,. Default shall ' occur upon the
Grantee's' failure to perform pursuant to- the Franchise Agreement,
: and shall• include,, but not be limited,to:,- a breach or anticipatory
breach, of the Agreement by the•Grantee,:. insolvency of the Grantee,-
bankruptcy (voluntary . or 'involuntary) of the Grantee,. any
assignment •for ,the benefit of the creditors of. ;the Grantee, or the
appointment of -.a receiver for. the Grantee. . The Grantee,. however,
hall be entitled .to .the return of' such. security fund,, .as posted. by
L.
the Grantee, or portion thereof, as,, remains on deposit at the
expiration of the term of the •franchise,- or upon termination of the
FRANCHISE AGREEMENT - Page 55
franchise at an earlier date, provided that there is then no
outstanding default on the part of the' Grantee.
(e) The rights reserved to Grantors and the Commission
with respect to the security fund. are' in addition to all other
rights of the -Grantors and the Commission whether reserved by this
contract or authorized. by law, and no action, proceeding or
exercise of a right with respect to such security fund shall affect .
any other right Grantors or the Commission may have.
(f) The Grantee agrees .that it will not use and that it
waives any rights it may have to attempt provisional remedies,
including, but not limited to, restraining orders and preliminary
injunctions, to challenge or stay the Commission' s removal of funds
from any security deposit pursuant to this Section 9.2. In the
event that the Grantee challenges the Commission' s removal of
security funds by other than provisional remedies, or resists the
Commission's efforts to require the Grantee 'to replenish the fund
pursuant to subsection 9.2 (b) (1) or 9.2 (b) (2) , the Grantee shall
have the burden of proving by clear and convincing evidence that
the Commission, in removing the funds or in demanding their
replenishment, has acted in an arbitrary and capricious manner and
in bad faith.
9.3 Faithful Performance Bond. Upon the transfer of the
franchise, the . Grantee shall furnish proof of the posting .of a
faithful performance bond running to the Commission, acting on
behalf of Grantors, with good and sufficient surety approved by
the Commission, 'in the penal sum of Two "Hundred Fifty Thousand
Dollars ($250, 000) , conditioned that the Grantee shall well and
truly observe, fulfill, and perform each term and condition of the
franchise. Such bond shall be maintained by the Grantee throughout
the term of this franchise. Written evidence of payment of
required premiums shall be filed -and- maintained with, the
Commission.
9.4 Damages and Defense.
(a). The Grantee shall defend,' indemnify and hold
harmless Commission. and Grantors, their officers, agents and
employees, for and against all claims, damages and penalties as a
result of the award and exercise of this franchise. These claims,
damages and penalties shall include, . but shall not .be limited to,
damages arising out of copyright infringement, defamation or anti-
trust actions . and all other damages 'arising out of the award of
franchise or the construction, operation, maintenance or
. reconstruction of the cable communications system authorized
herein, whether . or not any act or . omission complained of is
authorized, allowed, or prohibited by this franchise.
FRANCHISE AGREEMENT - Page 56
(b) If the Grantee "fails to defend as , required in
Section 9.4 (a) , above, then the Grantee agrees to and shall pay'all
expenses incurred by the Grantors, . Commission, their officers,
agents and employees, in defending themselves with regard to all
claims, damages and ,penalties , mentioned in section (a) ' ' above.
These expenses shall include all out-of-pocket 'expenses, ' such as.
attorney fees, and 'shall also include the reasonable value of any
services rendered _by any employees of the Grantors or the
Commission.
9.5 Liability Insurance and Indemnification.
(a) . The Grantee shall maintain, throughout the term of
the franchise, liability insurance insuring the Grantee, the
Commission and Grantors, their officers, agents and employees, with
regard to. all, claims, damages and penalties.mentioned in subsection
(a) of Section 9.:4, . abo.ve, . in the minimum amounts of:
$'1, 000.4, 00o for :personal injury or death to 'any one person;
$3', 000,.000 for personal injury .or death ,,resulting 'from any
one accident
$500, 0'00 for property damage resulting from any one accident; "
and
$1, 000, 000 for all other types of liability.
Such insurance shall name as additional insureds the
Commission and Grantors, their officers, agents and employees, .and
.shall further provide that the policy. shall not be 'canceled during
the life of this franchise without giving 30 days written notice to
the Commission and Grantors.
(b) . Grantee shall file with the Commission copies' of all
insurance policies or certificates of insurance showing up-to-date
coverages and evidence of .payment of premiums as set forth above. . ,
Insurance policies shall be subject to approval by the Commission.
Coverages shall not be changed or canceled without approval of the .
Commission and. failure . to maintain required . insurance may be
considered a breach of this agreement by the Commission. The
Commission shall annually" " review all insurance policies and
. coverages'. If 'it is . determined by the Commission that,
circumstances require and, that it is reasonable and necessary to
'increase insurance - coverage and liability limits to adequately
cover the risks of the, Grantors; Grantee and the•"Commission, their
officers, agents . and` employees, the Commission " may ' 'require
additional to be acquired by the- Grantee.
FRANCHISE AGREEMENT - Page 57
SECTION 10: RIGHTS RESERVED TO GRANTORS
10.1 Right to Purchase the System.
(a) In the event Grantors or any of them have declared
a forfeiture or: otherwise revoked this: franchise agreement as
provided in Sections ' 12.1 or 12.2 herein, or in the event of
expiration of the initial term of this franchise agreement without
the franchise being renewed or extended as provided in Section
12.3, the 'Grantee shall continue its operations under the terms and
conditions of this franchise agreement and as required by Section
12.4 herein, following the date of forfeiture or revocation or
expiration of the initial term, if such continuation of operations
is ordered by the Commission or Grantors pending the purchase of
the whole or part of the system by Grantors or any of them. The
Commission or Grantor (s) may subsequently order in writing
termination by Grantee of its operations at a specific time.
Within 30 days of the order by Commission or Grantors to continue
operations, Grantee shall tender to the Commission an inventory of
its system used in its operations under this franchise agreement
showing the original book costs thereof, the amount of depreciation
accruals previously attributed thereto. in rate making proceedings,
and the undepreciated net book value thereof. After receiving the
inventory, Grantors or any of them may notify the Grantee that they
desire to acquire by purchase all or a portion of the system used
by the Grantee in its operation for its fair value. Such notice
shall be by resolution or other appropriate writing of the Grantors
desiring to purchase and shall state a date upon which Grantee
shall cease. its operations and receive payment as described below.
The valuation for purpose of this subsection 10.1 (a) shall be
determined by mutual agreement between. Grantor(s) and the Grantee.
If such mutual agreement is not reached, then Grantors) may demand
that such valuation be determined by an arbitration committee, as
provided in Section 10.1 (c) , below.
For purposes of revocation or forfeiture under this subsection
10.1 (a) ,, fair valuation of all or part of the system shall be based
upon the fair value of the plant and equipment; including real
property, reduced by the amount of any lien, encumbrance, or
obligation of the Grantee which Grantor(s) may assume, but shall
not be 'determined by partners investment or expectation of profits
or going concern value and shall not include any sum for the value
of the unexpired portion of this franchise agreement or for
records. For any other purpose-under this section, fair market
valuation of all ' or part of this system shall be determined as
described in subsection 10.1 (b) .
During any period of continued operation under this section,
the Grantee shall not sell, assign, transfer, or lease to- any other
persons, firm or corporation, any portion of the system used by it
in its operations including parts of the system without the prior
written consent of the Grantor (s) .
FRANCHISE AGREEMENT - Page 58
The Grantee shall provide, in all existing and future rental,
lease, and lease-purchase arrangements of all or parts of the
system from any subsidiary, parent or other affiliate of the
Grantee, .for the. Grantor(s) acquisition of all, or parts of the
system, on the same .terms and conditions as are provided in this
section. The Grantee shallprovide in all zother rental., lease and
lease-purchase arrangements of.all or parts of the system for the
Grantors) succession tor taking over of, and continuation ,of such
rental- lease and lease-purchase arrangements_ on the same terms and
conditions as are applicable to.the Grantee under the rental, lease
and lease-purchase arrangements.
(b) In addition to its rights under Section 10.1 (a) r. the
Grantor(s) at any time may purchase,,. condemn, acquire, take over
and hold.. in any lawful manner all or any part of the system,
including real property,. used by the Grantee in its -operations
under this franchise agreement. In the event Grantors) desires)
to exercise this right, Grantor(s) shall so indicate by appropriate
resolution or other writing-.of the governing body. Within thirty
-days of, passage* of such resolution or-'other writing, Grantee shall
-tender to the Grantor (s) . an inventory . of' its system showing the
original book' coststhereof, the amount of depreciation, -accruals
previously attributed- thereto in ratemaking proceedings,- and the
undepreciated net book value thereof. - At any time thereafter, the .
Grantor (s) may notify by resolution or other appropriate. writing to
the Grantee that it -desires to purchase, acquire, take over and
hold all or a portion of the systema
The price to be paid for all or any part of the system which ''
the Grantor (s) shall have so stated its/their desire to purchase,
acquire, take over- and hold. shall be the fair value. of all or the
part of the. system- as of the effective date ' of `the :notice by
Grantors) of its/their desire to purchase, acquire, takeover and
hold all or part of the system. If- Grantor(s) . and Grantee are
unable to agree upon the fair value of the system, or any part
thereof, the Grantor(s) may demand that the fair value be
determined by an arbitration committee, as provided in Section
10.1 (c) , below.
Grantor(s) at any time may exercise their power toy condemn the
system or -any part thereof except during . the . pendency of
arbitration proceedings; hereurider. In the . event.. Grantor(s)
bring(s)
-condemnation proceedings 'in court to .acquire the .system of
the Grantee or any portion thereof, the Grantor(s)_ and Grantee
shall proceed with . all reasonable dispatch to - obtain an .
adjudication.
For•all purposes*:under this subsection 10 .1 (b) , 'fair valuation
of ; the ..system, or, parts ,.thereof,- which the , Grantor (s) ' has/have
designated for its/their ,.acquisition shall be based upon the. fair
value :of . the system, or parts thereof, - including going concern
value, -reduced by the amount of anylien:, encumbrance or obligation
of the Grantee which the Grantor (s) may assume
FRANCHISE AGREEMENT _ Page 59
Grantor (s) will pay the fair value, determined as hereinbefore
set forth, to Grantee in money on the date it/'they take (s)
.possession of the system or any part thereof. .
(c) Arbitration as provided in subsections 10:1 (a) and
10.1 (b) of this section shall be final and binding upon both
parties, subject to•: (1) if proceeding pursuant . to subsection
*10.1 (.a) ,, above, Grantor(s) ' right either during or within 60 days
of determination of valuation to decide by appropriate resolution
or other writing not to acquire' all or any part of the system
subject to the valuation proceeding and (2) Af proceeding pursuant
to either subsection 10.1 (a) or .10.1 (b) , 'above, Grantor(s) right to
decide to acquire, but subject to and conditioned . upon voter
approval, if necessary, of the funds necessary for acquisition of
all or a part of the system and, if applicable, the successful sale
of the bonds. Grantors) may choose to employ arbitration by
appropriate resolution or other writing of its governing body. In
the - resolution or other writing the governing body shall appoint
one arbitrator within fifteen (15) days after passage of such
resolution or other writing. The two so appointed shall select a
third arbitrator within fifteen (15•) -days after the appointment of
the second arbitrator. The arbitrators shall make a written report
to Grantor (s) and Grantee of their determination of fair value of
the system, or relevant part thereof, within sixty (60`) days after
the appointment. of the .third arbitrator. The determination of a
majority of the arbitrators shall constitute the arbitration
determination hereunder..' The Grantor (s.) and Grantee shall pay the
cost of their chosen arbitrator and the cost of the third
arbitrator. shall be' divided equally between the Grantors) and the
Grantee.
(d) In the event Grantor(s) purchase (s) , acquire (s) ,
take (s) over, or hold(s) all or parts of the system pursuant to
subsection 10.1 (a) , above Grantors) shall have the right without
limitation to assign, sell, lease, or otherwise transfer its
interest in all or parts of the system to any other persons,
including any other Grantee of" a cable communications franchise, on
whatever terms Grantor (s) deem(s) appropriate.
10.2 Right of Inspection of Records . In order to assist the
commission in keeping- adequate records, the Grantee shall provide
information in such formas may be required by the Commission for
its records, including, but not limited to:
(a) The true and entire cost of construction of plant
and equipment, of maintenance and of the administration and
operation thereof; the amount of stock issued, if any; the amount
of cash paid in, the number and par value of shares, the amount and
character -of indebtedness, if any, for interest,, for wear and tear
or depreciation; all amount and sources of income; and
(b) The amount collected annually from users of services
including Grantors if applicable, and the character and extent of
the service rendered therefor to them.
FRANCHISE AGREEMENT - Page 60
The information, in addition to any further data which may be
required by the Commission, shall be furnished by the Grantee to
the Commission upon request, and at the Granteel's own cost and
expense.
The Commission and individual Grantors, or their
representatives,. shall have the right to inspect. all books,
records, maps, plans, income tax returns,. financial statements;, and
other like material of the Grantee at any time during normal
business hours.
10.3 .Ricrht ' of Inspection of Construction. The Commission or
individual Grantors, or their representatives, shall have the right
to inspect all construction or installation work performed pursuant
to the provision of this franchise- agreement and to make such tests
as it shall find necessary to ensure compliance with -the terms of
this franchise and other pertinent provisions of law...
10.4 Right of Intervention. The Commission and/or Grantors
shall have the right -of intervention in any suit or proceeding to
which the Grantee is party which may have an effect :upon the
construction; maintenance or operation of the system. The Grantee.
shall not . •oppose such . intervention by the Commission and/;or
Grantors.
10.5 Riciht to Require Removal of Property. At the expiration
of the term for which. the franchise is granted, or upon its
forfeiture or revocation, as provided for herein, the Commission or
Grantors shall have the right to require the Grantee to remOve,'_at
Grantee's own expense, all or any part of the cable communications
system from all streets and public ways within the franchise area,
or in the, case of an individual Grantor, from all - streets .and
public ways within its corporate boundaries.
FRANCHISE AGREEMENT - Page 61
SECTION 11: RIGHTS OF INDIVIDUALS PROTECTED
11.1 Discriminatory Practices Prohibited. . The Grantee shall
not deny service, deny .access, or- otherwise discriminate against
subscribers, programmers, or persons on the basis of race, color,
religion, national origin, sex or age. The Grantee shall strictly
adhere to the equal employment .opportunity requirements of the
federal government, as expressed in Section 76.13 (x) (8) and 76.311
of Chapter 1 of Title 47 of the Code of Federal Regulations, as now
or hereafter constituted. The Grantee shall comply at all times
with all other applicable federal, state, or city laws, rules and
regulations relating to non-discrimination.
. 11:2 Unauthorized Monitoring or Cable Tapping Prohibited.
The Grantee shall not, nor shall Grantee allow any other person,
agency, or entity to tap, or arrange for the tapping, of any cable,
line, signal input device, or subscriber outlet or receiver for any
purpose whatsoever, without the subscriber' s written consent or
that of any user of the system.
11 .3 Privacy and Other Human Rights . The Grantee and the
Commission and Grantors shall maintain constant vigilance with
regard to possible abuses of the right of privacy or other human
right of any subscriber, programmer, or person resulting from any
device or signal associated with the cable communications system.
The Grantee shall not place in the building, structure or any
facility 'of any subscriber any equipment capable of two-way
communications without the written consent, revocable at will, of
the subscriber and residents, and will not utilize the two-way
communications capability of the system for unauthorized or illegal
subscriber surveillance of any kind. For purposes of this
subsection, tenants who occupy premises shall be deemed to be
.subscribers or residents, regardless of who actually pays for the
service. Written consent, as required herein, shall not be
required of any. subscriber by Grantee as a condition of receiving
any other cable service.
11.4 Permission of Property Owner Recguired. No cable, line,
wire, amplifier, converter, or other piece of equipment owned by
the Grantee shall be installed by the Grantee without first
securing the written permission of the owner of any property
involved or, where there is an existing utility easement or other
easement reserved by .plat or other conveyance, then the' written
permission of the Grantor having jurisdiction. If such permission
is later revoked, whether by the original or a subsequent owner or
Grantor, the Grantee shall remove forthwith any of its equipment-
and promptly restore the property to its original condition. -The
Grantee shall perform all installations and removals in a
workmanlike manner and shall be responsible for any damage 'to
residences or other property caused by the installation.
FRANCHISE AGREEMENT - Page 62
11.5 Sale- of 'Subscriber Lists . and Personalized Data
Prohibited. . The. Granteeshall not sell, or otherwise make
available, 'lists of the names and addresses of its subscribers, or
any list which identifies, by name, subscriber viewing habits, or
personalized data pertaining to a subscriber's. use of any of
Grantee's services, without the expressed consent of the subscriber
to which the personalized data 'pertains. For purposes of this
section, "personalized ,�data" means the name and address of an
individual subscriber which is associated or . linked with data
obtained on his or her use of specific services provided by or
through the Grantee.
1.1.6 Landlord - Tenant. Grantee shall provide to individual
units of a multiple housing facility, such as a duplex, apartment
or condominium unit, all services offered to other dwelling units"
within •the franchise , area, providing the owner(s) of -the facility
consents in writing, if, requested by Grantee; as follows:
(a) To Grantee' s providing of the services to units of the
facility;
(b) '. To reasonable conditions and times . for installation,
maintenance and inspection of the system on facility premises;.
(c) To reasonable conditions promulgated by' Grantee to.
protect Grantee's equipment and to'-encourage widespread use of
the system; and
(d) To not demand payment from. Grantee for permitting Grantee
to provide service to the. facility and to not -discriminate .in
rental charges, otherwise, between tenants who receive cable
service and .those who do not:
1
(e) However, Grantee: 'shall 'have no obligation to. provide
service if the cost of installation exceeds $15:0.0.0 per unit*.
To determine unit 'costs, the total project tost is divided by
the�. number ,of units The total ,project..: cost shall include
only the : costs of .cable: installed.on�.the. property including
line :extension a-nd; pre/post :wiring ,of .the 'units
*Cost .is expressed in_ 1985 dollars This figure shall. be .
adjusted each`'year on July 1 to reflect the annual change .iin
the:Consumer. Price':Index for the Portland. Metropolitan Region.
FRANCHISE AGREEMENT - Page -63
SECTION 12 : TERMINATION AND EXPIRATION.
12:1Revocation. In addition to any rights set out elsewhere
in this document, the Grantors reserve the right ' to declare a
forfeiture or otherwise revoke this franchise, either individually,
collectively or through the Commission, - and all rights and
privileges pertaining thereto, in the event that:
(a) the Grantee violates any material provision of the
franchise; or,
(b) the Grantee's approved -construction schedule as
required by Section 4 .2 is delayed for 18 months or more from the
date of commencement of construction; or, .
(c) the Grantee becomes insolvent, unable or unwilling
to pay its debts, or is adjudged a bankrupt; or,
(d) the Grantee is found to have practiced any .fraud or
deceit upon the Commission, Grantors, persons or subscribers; or,
(e) the .Grantee fails to obtain and maintain any permit
required by any federal or state regulatory body, relating to the
construction, maintenance and operation of the system;.
Upon failure of the Grantee to comply with the terms of the
franchise, following notice to Grantee and an opportunity for it to
be heard, Grantors may by ordinance, resolution or other
appropriate document, or through Commission action authorized by
Grantors, declare a forfeiture, whereupon all rights of the holders
of the franchise shall immediately be divested without a further
act upon the part of the Commission or Grantors, and the Grantee
shall forthwith remove its structures or. property from the streets
and restore the streets to such condition as Grantors may require.
Upon failure to do so, Grantors may perform the work and collect
the cost thereof from the Grantee, either individually, or through
the- Commission. The actual cost thereof, inc'luding'administrative
costs, shall be a lien upon all plant and property of the Grantee
effective upon placement in the lien docket books of the Grantors.
12.2 Receivership. The Grantors shall have the right to
declare a forfeiture or otherwise revoke this franchise one hundred
and twenty (120) days after the appointment of a receiver, or
trustee, to take over and conduct the. business of the Grantee,
whether in receivership, reorganization, bankruptcy, or other
action or proceeding, unless such receivership or trusteeship shall
have been vacated prior to the'. expiration of said one` -hundred and
twenty (120) days, or unless;
(a) within one hundred and twenty (120). days after his
election or appointment, such receiver or trustee: shall have been
approved by Grantors and shall have fully complied with all the
provisions of the franchise and remedied all defaults .thereunder;
and,
FRANCHISE AGREEMENT - Page 64
(b) such receiver or trustee, within said one hundred
and twenty . (120)' days, shall have executed an agreement, duly
approved by Grantors, as well as the court having jurisdiction in
the premises, whereby such receiver or trustee assumes and agrees
to be bound by each and every provision of the franchise.
12 .3 Expiration. The Commission, if it deems it necessary,
may extend the expiration date of this franchise .agreement, for all
. or any portion of the franchise area, for a period not to exceed
sixty (60) days. Subject to such Commission authority, Grantors
and each of them adopting this franchise agreement as its own,
shall have the right, at their election, to:
(a) renew or extend the franchise, though nothing in the
provision shall be construed to require such renewal or extension;
(b) invite additional franchise applications or
proposals;
(c) terminate the franchise without further action; 'or
(d) take such other action as Grantors deem appropriate.
12 .4 Continuity of Service Mandatory. It shall be the right
of all subscribers to receive all available services insofar as
their financial and other obligations to the Grantee are honored.
In the event that the Grantee elects to overbuild, rebuild, modify,
or sell the system, or Grantors or some of them revoke or fail to
renew the franchise, the Grantee shall make its best effort to
ensure that all ' subscribers receive continuous uninterrupted
service, regardless of the circumstances, during the lifetime of
the franchise. In the event of expiration, purchase, lease-
purchase, condemnation, acquisition, taking over or holding of
plant and equipment, sale, lease, or other transfer to any other
person, including any other Grantee of a cable communications
franchise, the current Grantee shall cooperate fully with the
Commission or Grantors to operate the System in accordance with the
terms and conditions of this agreement for a temporary period
sufficient in length to maintain continuity of service to all
subscribers.
12.5 Extension of Term.
(a) Within 90 days of July 1, 1988, the Commission shall
hold a hearing to determine whether Grantee has complied .with all
provisions of the Franchise Agreement, as amended, relating to the
operation of the Public Communications Network. If the Commission
determines that Grantee has complied with all such terms of the
Agreement, it shall grant to Grantee a 1 year extension of the term
of this Franchise Agreement.
FRANCHISE AGREEMENT -. Page 65
(b) If the Grantee operates the Public Communications
Network from July 1, 1988 until July 1, 1990, within 90 days of
July 1, 1990. the Commission. shall hold a hearing to determine
whether Grantee has complied with all provisions of the Franchise
Agreement, as amended, relating to the, operation of the. Public
Communications Network during that period.' If the Commission
determines that Grantee has complied with all such terms of the
Agreement, it shall grant to Grantee a 1 year extension of the. term
of this Franchise Agreement.
FRANCHISE AGREEMENT - Page 66
SECTION 13: OPERATION AND MAINTENANCE
13.1 Open Books and Records. The Grantee shall maintain an
office within the franchise' area, :and manage all of* its operations
in accordance with a policy of accessible open books and -records to
the Commission ,and Grantors-. Representatives of the Commission or
Grantors shall have the right to inspect at any time during normal
business hours, all books, records, maps, plans, income tax
returns, financial statements., service complaint logs, performance
test results and other like materials of the Grantee which relate
to the operation of the franchise. Access to the aforementioned
records shall not be denied by the Grantee to representatives of
the Commission or Grantors on the basis that said records contain
"proprietary" information.
13.2 Communications with Regulatory Agencies. Copies of
all petitions, applications, communi cations, 'and reports submitted
by the Grantee to the Federal Communications Commission, Securities
and Exchange Commission, or any other federal or state regulatory.
commission or agency having jurisdiction in respect to any matters
affecting cable communications operations authorized pursuant to
this franchise agreement, shall also be submitted 'simultaneously to
the Commission.
13.3 Reports
(a) Monthly Reports. - Within 10 calendar days of the
conclusion of each calendar month following the effective date of
.this franchise agreement, Grantee shall submit to the Commission a
written summary of all complaints received by or referred. to
Grantee within the report month'. Said reports shall..contain 0, as a,
minimum, the name address and telephone number of the complaining
party, the specific nature of the complaint, remedial action taken,
if any; current status of the complaint ("closed" or "open") and a
notation whether the complaining party resided in a city- or in the
unincorporated area of Washington county.
(b). . Quarterly Reports._ Within 30 days after the, end of
the Grantee's fiscal. quarter,. the Grantee shall submit a written
report to the Commission, verified by an officer of -Grantee, which .,.
shall contain an accurate statement, in• summarized form as well as
in •detail, of 'all receipts .from all sources and all expenditures
'for- all purposes together with a °full statement of all assets and
debts as well as -such other information as to the. cost and profits.
of Grantee! s. service and :the financial condition of.the Grantee as
Grantor may require. Said report shall be in sufficient detaa to
-enable the 'C.ommiss.ion to.make .disbursements of franchise. revenue in..
accordance with Section I herein and Resolution 81-41 attached
hereto as Exhibit B.
(c) Annual Report. No later than April 15 'of each year,
the Grantee shall present a- written. report to the .Commission which
shall include:
FRANCHISE AGREEMENT - Page 67
(1) A fully-audited and certified financial report for
the previous. calendar year, including gross revenues from all
sources, gross subscriber revenues from each category or service,
net income and an end-of-year balance sheet;
(2) A summary of the previous year' s activities
including, but not limited to, subscriber totals and new services;
(3) A summary of complaints. received and handled; and
(4) Projected plans for the future.
(d) Monitoring and Compliance Reports. No later than
April 15 of each year, the Grantee shall provide a written report
of'the FCC performance tests for the Residential Subscriber Network
required in Part 76, Section 76. 601 of FCC Rules and Regulations as
now or hereinafter. constituted. In addition, the Grantee shall
provide reports of the test and compliance procedures established
by. this franchise. agreement, _ no later than 30 days after the
completion of each series of tests.
(e) Additional Reports. The Grantee shall prepare and
furnish to the Commission, at the times and in the form prescribed,
such additional reports, with respect to its operation, affairs,
transactions, or property,' .as may be 'reasonably necessary and
appropriate- to the performance of any of the rights, functions or
duties of the Grantee in 'Connection with this franchise.
13.4 Maintenance and Complaints.
(a) The Grantee . shall maintain an office in the
franchise territory which shall be open during all usual business
hours, have a publicly listed toll-free telephone, and be so
operated to receive subscriber complaints and requests for repairs
or adjustments on a 24-hour basis. A- written log shall be
maintained listing all complaints and their disposition.
(b) The Grantee shall render efficient service, make
repairs promptly, and interrupt service only for good cause and ,for
the shortest time possible. Such interruptions, insofar as
possible, shall_ be preceded by notice and shall occur during a
period of minimum use of the system. A written log shall be
maintained for all service interruptions.
(c) The Grantee shall maintain a repair force of
technicians capable of responding to subscriber complaints or
requests for service within 24 hours after receipt of the complaint
or request. No charges shall be made to the subscriber for this
service.
FRANCHISE AGREEMENT - Page 68
(d) The Commission shall ensure that all subscribers,
programmers, and members of the general public have recourse to a'
satisfactory hearing of any complaints, where there is evidence
that the 'Grantee has not settled " their complaint to the
satisfaction of the person initiating the complaint. The
Commission shall establish procedures for handling and .,settling
complaints.
13.5 Safety.
(a) The Grantee shall, at all times, employ the standard
of care ,.-attendant to the risks involved and shall install and
maintain in use commonly . accepted methods .and. devices for
preventing failures and accidents which are .likely. to cause damage,, ..
injury, or nuisance to the, public. or to employees of the Grantor.:
(b) The . Grantee shall install and maintain-=its _wires,
cable, fixtures, and other equipment in accordance with . the
requirements of the National ' Electric Safety Code, and in such
manner that they will not interfere with the installations of any
Grantor or any public utility.
(c) All lines, equipment and connections in, over,
under, and upon either the streets and public; ways of Grantors or
private property within boundaries of Grantors, wherever situated
or located, shall 'at all times be kept,.and maintained in a safe and
suitable condition, and in good order and repair.
FRANCHISE AGREEMENT - Page 69
1
SECTION 14: MISCELLANEOUS PROVISIONS
14 .1 Compliance with Laws. The Grantee shall comply with
all federal and state laws .and regulations, including regulations
of any administrative agency thereof, as well as all ordinances,
resolutions, rules and regulations of all Grantors and the
Commission heretofore or hereafter adopted or established during
the entire term of this franchise, which are relevant and relate' to
the construction, maintenance and operation of the cable television
system,
14.2 Severability. Subject to the provisions of Section 14.6
below, if any section, subsection, sentence, clause, phrase or word
of the franchise agreement is held to be invalid -or
unconstitutional by any court of competent jurisdiction or pre-
empted by federal or state regulations or law, such section,
subsection, sentence, clause, phrase or word shall be deemed a
separate, distinct and independent provision and such holding shall
not affect the validity of the remaining provisions hereof.
In the event that suit or action is brought by a party not a
party - to this Franchise Agreement, challenging the validity or
constitutionality of _ any word, phrase, clause, sentence,
subsection, section or other provision of this Franchise Agreement,
as amended, the Grantee agrees to assume the cost and obligation of
defending said suit or action on behalf of itself.. the Commission,
and the Member, Jurisdictions, to the .extent any are named or
implicated as respondents or defendants in such suit or action.
The Grantee will indemnify and hold harmless the Commission and the
Member Jurisdictions against any adverse_ decree or judgment
rendered in such suit or action.
14 .3 Captions. The captions to sections throughout this
franchise agreement are intended solely to facilitate reading and
reference to the sections and provisions contained herein. Such
captions shall not affect the meaning or interpretation of this
franchise agreement.
14.4 No Recourse Aaainst the Commission or Grantors. . T h e
Grantee shall have no recourse whatsoever against the Commission or
Grantors or their officials, boards, commissions, agents, or
employees for any loss, costs, expense, or damage arising out of
any provision or requirement contained herein, and resulting from
the good faith acts of such persons. in the enforcement or
administration of this franchise agreement, or in the event this
.franchise agreement or any part thereof is determined to - be
invalid.
14.5 Nonenforcement by Commission or Grantors. The Grantee
shall not be relieved of its. -obligations to comply with any of the
provisions of this franchise agreement by reason of any failure of
the Commission or Grantors to enforce prompt compliance.
FRANCHISE AGREEMENT - Page 70
1
14 . 6 Subsequent Action by State or Federal -Agencies. Should
the State of Oregon or -any agency thereof, the FCC, * or, any other
agency of the federal government subsequently require the Grantee
to act in any manner which is inconsistent with any provisions of
this franchise agreement, the Grantee shall so notify the
Commission and Grantors. Upon receipt of such ,notification, the
Grantors .shall determine if. a material provision of this franchise
agreement is affected. Upon such determination, the Grantors shall
have the right , to modify or amend . any other -section of this
franchise agreement to such reasonable extent .as may be necessary
to carry -out the full intent andpurpose of the franchise. The
Grantors or any of them, may terminate ,the . franchise in the event
such Grantors determine that- substantial and material compliance
with the original proposed terms ' of the franchise has been
frustrated by such state or federal '.requirement.
14 .7 Force iMaleure. If by reason of force - ma' jeure the
Grantee is unable in whole or in part to carry out its obligations
hereunder,- 'the ,.Grantee;.shall. not be deemed in violation. o.r default
during the continuance of such inability. The term "force majeure"
as used herein shall mean the following: acts of God; strikes,
lockouts, or other industrial disturbances; acts of public enemies,
orders of the government of the United States of America, or of. the
State of Oregon, or their departments, agencies, political
subdivisions, or officials; acts. of . any civil or military
authority; insurrections; riots; epidemics; landslides;
earthquakes; lightning; fires; hurricanes; . volcanic activity;'
storms; floods; washouts; droughts; restraint .of government and
people; - civil disturbances; explosions; or . partial or entire
failure of utilities. The .Grantee agrees, howeverto. give its best
efforts to remedy as. soon as possible, under the circumstances, the
cause or causes preventing Grantee from carrying out its
responsibilities and duties under this franchiseagreement.
14 .81 Guarantee of Performance. Grantors have , made ' the
decision; to enter into this franchise agreement with Grantee
following solicitation of competitive proposals . from companies
interested ' in obtaining a franchise to provide a cable
communications system for Grantors. Grantee agrees that it.,entered
into this franchise agreement. voluntarily, and made all . offerings
and promises -contained in the.'proposal in order to secure ,and in
consideration of the grant .of. .a .fifteen (15) year franchise from
Grantors. Performance pursuant to ;the 'terms, and conditi.ons...of this
franchise agreement . :is guaranteed by Grantee and by Tidel
Communications, - Inc.:,; :(parent. corporation) notwithstanding
: subsequent changes of any kind in 'the regulatory environment by the
federal or - state government. Failure of Grantee or :parent
corporation, or some or all of-them, to perform' in accordance 'with_
the terms and.conditions contained herein shall constitute a breach
of this franchise agreement. - . Grantors shall be entitled. as a
matter of right to, any, remedy contained herein including, but not
limited to, forfeiture or revocation of this franchise agreement,
injunctive relief or specific performance, or any. other 'remedy
contained herein or otherwise available to Grantors for failure to
perform by Grantee.
FRANCHISE AGREEMENT - Page 71
14.9 Entire Agreement. This franchise, agreement 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.
14.10 Consent. Wherever the consent of either the Grantee or
the Commission is specifically. required in this agreement, such
. consent will not unreasonably withheld. .
14.11 Renegotiation Sessions. It is agreed that commencing
with the effective date of this franchise agreement, at the call of
the Commission, the Grantee and the Commission shall meet and
renegotiate on matters of concern .of interest to. either of them.
The topics for renegotiation shall be stated- in writing by each
party prior to the meeting(s) , but each party .shall be entitled to
include any item of interest ' in the topic list.
14.12 Effect of Amendments. The parties recognize that they
have conflicting opinions regarding the effect of the adoption of
The Cable Communications Policy Act of 1984 on the original
provisions of the Franchise Agreement. ' In addition, Grantee has
requested and Grantors have agreed to relieve Grantee of certain
obligations which are clearly enforceable by Grantor under the Act.
Grantor would not have done so if it did not have Grantee's
assurances that it would abide . the entire terms of the amending
agreement.
The parties intend and believe that all of the provisions
hereof are consistent with and permitted by The Cable
Communications Policy Act of 1984 . Grantor would not have entered
into this Franchise Amendment Agreement but for Grantee' s
representation that the following provisions would not be subject
to. challenge: (1) the provisions for setting rates and
installation charges for users of the- Public Communications
Network; (2) that any extensions of the term of the franchise do
not constitute renewal of the franchise under said Act; (3) that
the time value of money is fully accounted for in the method agreed
to for crediting repayment of advances on franchise fees; (4)
that there need be .no compensation paid to Grantee if the Public
Communications Network. is accepted by the Commission; and (5)
that the provisions of Section 8.7 Consumer Protection Standards
and Penalty Guidelines are enforceable. The parties agree that.
they are estopped from challenging in any judicial proceeding the
validity or enforceability of the specific provisions of the
Franchise Amendment Agreement set forth in the preceding sentence
based on the terms of the Act as it is written on the effective
date of the Franchise Amendment Agreement.
FRANCHISE AGREEMENT - Page 72
The parties recognize that amendments to the Act or further
action or Federal or State regulatory or Judicial .authorities may
occur. As to the five. enumerated. ,items, 'the . parties .intend that
the exiting provisions of Section 14.6, - 14.7 and. 14.8 of the
Franchise Agreement and Section 625 of the Act shall control in the
event of changes in . circumstances other than judicial
interpretations of the existing provisions of the : Act that
adversely, impact 'the Grantee`,s performance.
14.13 Arbitration. Any controversy or claim arising .out of
or relating .to this Franchise Agreement, or to the, breach thereof,-
shall be settled by arbitration. in. -accordance, with the, Rule of 'the
American Arbitration Association, - and Judgment upon. the award may,
- be entered in any court having, jurisdiction thereof. ' 'All
arbitration hearings -shall, take place, n Washington County, Oregon..
The arbitration decision. shall be final and binding on the parties.
FRANDRFT.DOC
FRANCHISE AGREEMENT - Page. 73