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HomeMy WebLinkAbout07/23/97 AGENDABREMERTON CITY COUNCIL 239 4TH STREET BREMERTON, WA 98337 CITY COUNCIL AGENDA JULY 23, 1997 CALL TO ORDER - 5:30 P.M. A. Pledge Of Allegiance B. Invocation CONSENT AGENDA Items listed below have been distributed to Council members in advance for study and will be enacted by one motion. If separate discussion is desired on an item, it may be removed from the Consent Agenda and placed on the Regular Agenda at the request of a Council member. A. Minutes - July 9, 1997 #AB97-167 B. Sole Source Purchase of a Sweeper-Vac From Barnett Implement, Inc. For Gold Mountain Golf Complex #AB97-168 /6) 3. CLAIMS/CHECK REGISTERS 4. COUNCIL MEMBER REPORTS 5. M~YORWS REPORT 6. PUBLIC RECOGNITION -- (Comments Limited to 3 Minutes) ® ORDINANCES A. Ordinance #4598 (Second Reading) Granting a Non-Exclusive Franchise to TCI Cablevision of Washington #AB97-166 /3 AGENDA BILL ~--BREMERTON CITY COUNCIL SUBJECT':-MINUTES - JULY 9, 1997 FOR AGENDA OF: JULY 23, 1997 ORIGINATING DEPT: City Council ORIGINATOR: David Farr, President DATE SUBMITTED: 7-14-97 2. ~~m~tC~: (comment on back if necessary) ENDORS EM~NT INFOR24AT I ON MAYOR APPROVED BY COUNCIL ~~ SUBMITTAL: COUNCIL PRESIDENT 4. S~Y STATEMENT A~D ~EOUIREMENT FOR COUNCIL AcTIOn: 8. RECOMMENDATION: 9. RESPONSIBLE OFFICIAL: ENFORC~M]ENT OFFICIAL: .EXPIRATION DATE: REVIEW DATE: PUT,LED TABLED COUNCIL DIRECTIVE: !0. NOTICE OF ACTION APPROVED .DISAPPROVED ...DATE: 11. AGENDA BI~,~. NO: 2. CLEARANCE COMMENTS:. :5.'~ACTON NON-PASSAGE: -~ ~---?u~CT'~NSTAFFING, BUDGETS. FACILITIES. EOUIPMENT OR OTHER RESOURCES: TAPE #1476 CITY COUNCIL MEETING MINUTES JULY 9, 1997 UNAPPROVED DRAFT #0029 #0048 The regular meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, 239 4th Street, Bremerton, Washington, Wednesday, July 9, 1997, at 5:30 P.M., with Council President David Farr presiding. Council members present were Bob Winters, Carlos Montgomery, Sherril Huff-Menees, Richard Neville, Lon Overson, John Law, Cecil McConnell, and A1 Colvin. Also present were City Attorney Ian Sievers and Deputy City Clerk Paula Johnston. The meeting opened with the Pledge of Allegiance led by Council President Farr, and Invocation given by Dr. David Butimore of Trinity Missionary Baptist Church. President Fart made the following announcement: (1) Council will hold a Study Session immediately following the Council meeting to discuss the "1997 - 2002 Capital Improvement Plan". CONSENT ~GEND& A. Minutes of Meeting -- June 25, 1997 #AB97-153 M/S/C/U(Neville/Montgomery) presented. to approve the Consent Agenda as CLAIMS/CHECK REGISTERS Vouchers audited and certified by the auditing officer as required by RCW 42.24.080, and those expense reimbursement claims certified as required by RCW 42.24.090, have been recorded on a listing that had been made available to the Council. M/S/C/U(Colvin/Montgomery) on July 9, 1997, the Council does approve for payment those vouchers included and further described as follows: 210539 through 210541, and 210545 through 210684 in the amount of $228,755.37. COUNCIL MEMBER REPORTS Mr. Colvin announced Council Districts #1 and #2 will join Council District #3 in hosting the "Fire Department On Parade" event on July 15, 1997, 6:00 - 8:00 P.M., at the Garguile's Red Apple Market Parking Lot/PerryAvenue Mall. This event is open to all Bremerton citizens. He wished Councilman Neville a "Happy Birthday". Lastly, he asked the City Attorney to provide him an answer whether or not the City's ordinance addressing weeds is enforceable on City and School District properties? TAPE #1476 City Council Reg. Mtg. Minutes July 9, 1997 Page 2 of 7 Mr. McConne11 also encouraged residents to attend the "Fire Department On Parade" event. He noted Sylvan Way is getting a new street, and work is currently underway on the intersection. Mr. Law followed up Mr. Colvin's announcement of the "Fire Department On Parade" event and encouraged members of the public to come out and meet their firefighters personally, learn to use a fire extinguisher, and other fire safety information. Free trading cards, balloons, pop, and popcorn will be available. Mr. Neville thanked his family for remembering his birthday today with balloons and flowers. Mrs. Huff-Menees reminded everyone that the first Concert On The Boardwalk will be held July 11. Mr. Mont=omer~ announced Council Districts #6, #7 and #8 will hold a Joint Neighborhood Meeting on July 31, which will include Mayor Horton and Randy Witt, City Engineer. If members of the public wish to have other City staff members address specific issues at that meeting, he asked them to let him know. Further details on this meeting will be published at a later date. Mr. Winters thanked Jim Spencer, Parks & Recreation Director, for attending a meeting at the County Public Works & Utilities Department regarding weed control in County areas, as well as Kitsap Lake. One of his District #9 constituents, Garland Freymann, who was involved with the Port Orchard fireworks display, asked that a special "thank you" be passed on to the Port of Bremerton Commissioners, the Port of Bremerton, and Gene Baker, Harbor Master. Mr. Fart re-emphasized the entire community is invited to attend the "Fire Department On Parade" event. Regarding the newspaper article in today's SUN about the USS Missouri, he stated that he believed Hawaii Senator Inouye had a serious lapse of judgement when he attacked the City. Mr. Montqomer7 stated 100 letters were sent to Senators requesting that the Navy reconsider their decision awarding the USS Missouri to the State of Hawaii. MAYOR'S REPORT gave a briefing on recent negotiations between the City and Puget Sound Alliance. She complimented Gene Sampley, Public Works & Utilities Director, and Ian Sievers, City Attorney, on their professional representation of the City during the negotiations. Based on the discussions so far, she believes the two parties are coming to agreement on broader areas. Mayor Horton noted Gold Mountain Golf Complex was included in the USGA Turf Advisory Service Report where it was report the new TAPE #1476 city Council Reg. Mtg. Minutes July 9, 1997 Page 3 of 7 Olympic Course has received rave reviews throughout the golf community in western Washington; the practice tee has been expanded and has one of the finest maintenance facilities built on a public course. The report further commented the fairways on the Olympic course are the best they have seen in the Pacific Northwest; however, they did include several smaller scoped suggestions to enhance the course even more. PUBLIC RECOGNITION H. Emily Mosha¥, Bremerton resident, announced the next meeting of the Martin Luther King Jr. Constitution Day Committee will be July 10, 1997, at the Bremerton School District Administrative Building, 134 North Marian Avenue, from 5:00 - 7:00 P.M. She recently returned from visiting Hollister, California, where she attended the Bikers' Wild One 50th Anniversary, which was exciting and was a financial windfall for that community. Reports on the event from the Hollister City officials and law enforcement agencies were very favorable. Following up Councilman McConnell's earlier comment about resurfacing Sylvan Way, it is beautiful. She was pleased over the recent placement of two new speed bumps on Park Avenue. Roy McInnis, Bremerton Resident, gave a glowing report on the successful Sinclair Missionary Baptist Church's anniversary celebration for their pastor, Rev. Echols. Del Knauss, Bremerton resident, thanked Mayor Horton for providing him answers to some of the questions he raised at the last City Council meeting. He referenced the City Charter, Section 8 (d)and (e), and expressed his concern the Commission (Bremerton Citizen's Commission On Council Salaries), being able to set salaries for the City Council members by just submitting their initial Schedule Of Salaries for City Council members with the City clerk no later than May 1, 1997, and shall thereafter file schedules by May 1st of the applicable later years so as to coincide with the City budget cycle. "(e)" - Each such schedule shall be filed in ordinance form, shall be assigned an ordinance number, shall be published in the same manner as a City ordinance, and shall become effective thirty days after filing with the City Clerk. He felt strongly that it was the City Council's responsiblity to pass an ordinance implementing their salary structure, not a Commission. He believes, if the Commission uses the process outlined in the Charter, they will face a legal challenge. Ian sievers, City Attorney, stated at the time the Charter Change was approved, the issue of apparent conflict with State law on salary increases when the Charter Change was addressed. He anticipated having the Council vote on the ordinance even though the Charter does not require that action. Me noted the specific explanation of that Charter change addressing setting Council salaries was presented to the Council as well as the electorate and approved. If there is a TAPE #1476 City Council Reg. Mtg. Minutes July 9, 1997 Page 4 of 7 risk for challenge, he believed it could be minimized by a ratification vote by the City Council. Charlie Brown, Bremerton resident, stated he believed the comments made by Senator Inouye were directed toward the Inactive Ships Facility, not the City of Bremerton. Lannie Gantz, Bremerton resident, read a letter dated April 18, 1997, from Paul Steven Beaver, addressing the issue of fluoridation of drinking water and the adverse affects it can have on individuals as well as identifying areas where it was implemented and then eliminated. President Fart explained at this time there is not an issue before Council addressing fluoridation. Elizabeth Buell, Bremerton resident, questioned if fluoridation was so good for people, why hasn't someone bottled fluoridated water and sold it in stores? 7A - PROFESSIONAL SERVICES AGREEMENT WITH WBLDRON INTERIN SERVICE5 FOR PERMIT REVIEWER CONTRACT; AND APPROVING BUD~ETADJUSTMENT ~97- 18, #AB97-154 Jack Allingham resigned his position in February. He gave two weeks notice prior to his resignation. We are in the process of hiring his replacement. We expect the hiring process to take four months. (Some of this delay is caused by DCD's workload and management priorities.) Waldron Interim Services can provide us with an interim contractor for $28.00 per hour. Mr. Allingham's cost to the City was $26.59 per hour. We plan to average only 32 hours per week of the interim person in order to keep the cost within budget. The Budget Adjustment request moves the funds from personnel to services. Judy Johnson, Building Development Permit Manager, reviewed the summary statement and offered to answer any questions. Public comment - none. Mrs. Huff-Menees noted during the discussion of this item at the Fiscal and Budget Committee, the primary concern voiced by the members was under Article #3 -Compensation and the issue of a Finders Fee. Mr. Law noted the same concern was raised during the Operation Committee's discussion on this item. Mr. McConne11 questioned why it was taking five months to fill the vacated position? He also opposed the inclusion of the "Finders Fee" in the contract and pointed out the start date of the contract was February 28, 1997 and the termination date was August 31, 1997. Ms. Johnson stated she did not have an answer as to the filling of the vacated position, but the start date in the contract reflected #1159 TAPE #1476 City Council Reg. Mtg. Minutes July 9, 1997 Page 5 of 7 the date of employment for the person filling the position under this contract. He questioned Council's ability to modify the contract prior to its being approved. M/S/C(Huff-Menees/Montgomery) to amend the contract by deleting the "Finders Fee", and to authorize the Mayor to sign the proposed contract with Waldron Interim Services and to approve the related Budget Adjustment request #97-18. Vote on Motion: Motion carried. In Favor: Opposed: Montgomery, Huff-Menees, Neville, Farr, Overson, Law Colvin Winters, McConnell 7B - ACCEPTiqNCE OF WASHINGTON TI~J~FFIC SAFETY CO141.fI$SION GI~J~NT, 97-~55 Request the approval and acceptance of the Washington Traffic Safety Commission Grant funding for the Bremerton/Kitsap County DUI Task Force. The grant is in the amount of $28,462.00. The Task Force attempts to reduce the incidence of impaired driving through education and enforcement. It is a joint cooperative effort with the Washington State patrol, Kitsap County Sheriff's Office and all County municipal jurisdictions. Henrv Mincey, Police Department Community Resource Division, stated this has been on going funding for several years and he has had the pleasure of managing and administering this program for two years. The Coordinator's position is important as it relates to traffic safety issues, i.e.D.U.I's and drug impaired drivers, throughout Kitsap County. Public comment - none. Mr. Neville commented on the valuable data provided in the Agenda documentation and asked Mr. Mincey to briefly review some of that information for the benefit of the public. Mr. Mince¥ stated Kitsap county has been targeted as a high risk area by the Washington Traffic Safety Commission for traffic collisions. Therefore, it is important to place emphasis on enhanced County wide education towards traffic safety issues with a strong focus towards restraint usage. Their bench mark is to sustain the current 13% reduction per year in traffic collisions and reach an over all reduction percentage of 35% by 1999. In addition, increase the restraint usage in fatal and serious injury collisions from 47.1% to 50% by 1999. Mr. Neville also pointed out the intent to reach over 1200 students throughout the school year and 20,000 military personnel to highlight the goals and objectives as described in the documentation. He also pointed out there are 20,575 youthful drivers under the age of 24; and he was pleased #1441 TAPE #1476 City Council Reg. Mtg. Minutes July 9, 1997 Page 6 of 7 that pedestrian and bicycle safety was part of this program. complimented Mr. Mincey for doing an outstanding job. He M/S/C/U(Neville/Colvin) to authorize the Mayor to sign the grant contract. 8A - PUBLIC HEARING - 1998 CDBG/HOME POLICY PLAN, ~AB97-156 Attached is the daft 1998 CDBG/HOMEPolicy Plan which was initially presented to the Council during a study session on May 5, 1997. The Plan identifies the CDBG rules and regulations, as well as the City's allocation process. Availability of the plan for review was advertised in THE SUN on June 11, 1997. A letter announcing availability of the plan was sent to all persons and organizations, who have indicated an interest in the CDBG and HOME programs. A copy of the Plan was sent to those requesting it. A public meeting to discuss the Plan was held June 26, 1997. Debbie Peavler-Stewart, Neighborhood Development Team, stated the City receives approximately $550,000 annually under,the Community Development Block Grant Program and approximately $370,000 under the HOME Program from the Federal Department Of Health and Urban Development. The HOME Program is for the development and repair of housing for low and moderate people. The CDBG program can be used for a variety of different projects for low and moderate income people, including community centers, parks, infrastructures, removal of architectural barriers, housing and human service activities. City Departments, other local agencies and various non-profit organizations are eligible to apply to the city for these funds. As stated, the Policy Plan and Application provides the program rules and process. The rating factors and regulations are similar to those used in 1996. The Plan includes additional guidance over last year for the distribution of funds after projects have been rated. At the request of non-profit organizations, the City, Kitsap County and United Way collaborated and developed a Budget Form and the attachments that will be required for applicants requesting human service dollars. Comments on the Policy Plan and Application have been positive except for one, which was received from a smaller organization that was concerned with the complexity of the budget forms. The City is available to provide technical assistant on the forms and a public meeting was held on July 8, which was attended by 30 organizations. According to the draft plan, the application deadline is August 27, 1997. TAPE #1476 City Council Reg. Mtg. Minutes July 9, 1997 Page 7 of 7 #1689 Public comment - none. Mr. Neville pointed out another technical meeting is scheduled for July 24. Ms. Peavler-Stewar4 stated they are encouraging anyone intending to apply for CDBG funding to attend the July 24th meeting, which will be held in the Olympus Drive Building. Mr. Neville questioned the number of applications submitted for the previous years allocation? Ms. Pearler-Steward stated over 50 applications were received, which included public services as well as capital projects. Mr. McConnell commented on the detailed questionnaire included in the application. Mrs. Huff-Menees complimented staff on the plan and the fact each year improvements are made that enhance the program. She also commend staff for responding to requests from the applying agencies. For many non-profit agencies these funds are extremely important and enable them to provide services within the community that a governmental entity cannot nor should not provide. It was her hope that guidance will be given to the committee members, who will be making their selections and reading the applications, that they all use the criteria as explained and instructed and that the process be one that is free from flaws that make it difficult for Council when evaluating those recommendations. M/S/C/U(Huff-Menees/Colvin) to approval the 1998 CDBG/HOME Police Plan as presented President Fart thanked the TV camera crew for their services: Rob Rupe, Patricia Mathes, and James Nobel, Jr. With no further business meeting adjourned at 6:25 P.M. PAULAJOHNSTON, Deputy City Clerk DAVID FARR, Council President City of Bremerton PJ/DDF/me cc: Normal Distribution File/Vault AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: Sole Source Purchase of a Sweeper- Vac for Gold Mountain Golf Complex. City Attorney City Treasurer Parks & Rec. Fiscal and Budget Council Operations FOR THE AGENDA OF23 July 1997 ORIGINATING DEPT:Parks and Recreation ORIGINATOR:Pat Westhoff DATE SUBMITTED: 1 July 1997 3, EXHIBITS: Gold Mountain Golf Complex Capital Budget ENDORSEMENT M~YOR: (~ APPROVED BY CITY COUNCIL FOR SUB_I~A.DL COUNCIL PRESIDENT:, - 4. SUMMARY STATEMENT AND REOUIREMENTS FOR COUNCIL ACTION: In accordance with accepted City Procurement Policies and Procedm'es, City Council can waive call for Bid requirements when the purchase of equipment is sought that: 1. specifies a brand or specialized equipment that is not available on the general market, 2. that is sold by a distributor who is the sole authorized representative of the manufacturer in the region, or 3. to maintain standardizat/on and compatfoility_ Since Barnett Implement is the only authorized representative of the Goossen Versa-Vac in Western Washington, we are reqUesting the following piece equipment. - Goossen Versa-Vat RVT 09500LTo7. lcu.yd. Total cost: $15,494.40 tax included 1997 Budget $20,000.00 RECOMMENDATION: City Council approve the waiver of call for bids and approve the purchase of equipment from Barnett implement Inc. 9. RESPONSIBLE OFFICIAL: Jim Spencer, Director ENFORCEMENT OFFICIAL: Jim Spencer, Director EXPIRATION DATE:31 December 1997 REVIEW DATE: PULLED ~ TABLED APPROVED ~ DISAPPROVED ~ DATE: AMENDED 11. AGENDA BILL NO: q 7 -- 2. CLEARANCE COMMENTS; 5. IMPACT ON NON-PASSAGE The Golf Complex cannot be maintained to the standards that have been established. 6. IMPACT ON STAFFING. BUDGETS, FACILITIES. EOUIPMENT OR OTHER RESOURCES: The purchase of the Sweeper was anticipated in the 1997 Capital Budget for fund 407, project ntunber 97206. $20,000 was budgeted for the sweeper which will be a savings of $4,505.60. 7. RESEARCH RESOURCES: Ed Faulk, Gold Mountain Greens Superintendent, tested four sweeper/vacs on site. The requested machine was the superior performer, ~and will best serve our needs. [ - CiTY OF BREMERTON-- 1997 BUDGET C,AP[TAL FUNDING FUNDED DEPARTMENT AMOUNT DESCRIPTION GOLD MOUNTAIN GOLF COURSE 18,0001 TRIPLEX T MOWER 3100-D 28.000! FAIRWAY MOWER- 5 PLEX UGHTWEIGHT 4,500 WALKING GREENS MOWER 6.1300 UTlUTY VEHICLE - CLUB CAR 5,080 BLOWER 3PT HITCH ~) 20.000 SWEEPER - PTO 3 PT HITCH 11,000 WALK-IN COOLER INDOOR/OUTDOOR ?.080 TABLES AND CHAIRS 500 FAX MACHINE 14.272 UNIDENTIFIED CAPITAL TOTAL GOLD MTN. GOLF COURSE 10g,272 WASTEWATER UTIUTY 5,536,708 SEE ATTACHED WORKSHEET STORMWATER UTIUTY 138,000 SEE AT~ACHED WORKSHEET EQUIPMENT RENTAL RESERVE 2~600 REPLACE CHEVROLET BLAZER - UTIMTY 14,800 REPLACE CHEVROLET PICK-UP - UTIUTY 14,8130 REPLACE CHEVROLET PICK-UP - UTIMTY 12.250 REPLACE FORD PICK-UP - PARKS 18,950 REPLACE FORD PICK-UP - ENGINEERING 51,080 REPLACE JOHN DEERE 2355 - PARKS 15.0(X3 REPLACE JOHN DEERE 850 - PARKS ?.500 MOWER DECK - PARKS 75~001 REPLACE 3 CROWN VICTORIAS & 1 FORD AEROSTAR - FIRE 120,000 REPLACE CHEVROLET AMBULANCE - FIRE 28,500 REPLACE STREET STEPVAN 25.080 MISCELLANEOUS OPTIONS & EQUIPMENT TOTAL EQUIPMENT RENTAL RESERVI 399,200 ROOSEVELT CAPITAL ASSETS 100,0(X) EVERGREEN SEA WALL 635.000 EVERGREEN PHASE I TOTAL ROOSEVELT CAPITAL ASSETS 735,080 GIFT AND DONATIONS FUND 4,000 UNIDENTIFIED POLICE CAPITAL 4.g10 UNIDENTIFIED FIRE CAPITAL TOTAL GIFT & DONATIONS FUND 8,910 Total all Fund~ 18,331,931, 106 AGENDA BILL BREMERTON CITY COUNCIL SUBJECT: Public Hea~ing and Ordinance No. Regarding the Grant of a Non- Exclusive Franchise to TCI Cablevision of WA FOR AGENDA OF: 07/16/97 ORIGINATING DEPT: Admin Services ORIGINATOR: Kathleen McCluske~ DATE SUBMITTED: 07/08/97 o CLEARANCES: (comment on back 3. City Attorneyc=~~·/~ Public Works Dir.~/ ~//W-,~/~___..~. EXHIBITS: 1) 2) Ordinance Summary Ordinance MAYORENDORSEMENT ~ )~',~.IN~TION APPROVED BY COUNCIL PRESIDENT._FOi{ SUBMITTAL: COUNCIL PRES IDENT _~~ ~ ,~_ SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: Culminating 18 months of negotiations, the City and TCI have agreed upon a franchise ordinance that grants TCI a non-exclusive franchise to operate a cable system within the City for the next 10 years. Highlights include: 1) a system upgrade to 75 activated channels with~ 36 months; 2) Public Access Channel support including studio, channel expansion, a monthly contribution of $1734 and Council Chambers equipment upgrade; 3) I-Net provisions to include development and future construction at cost. o RECOMMENDATION: Motion to approve on first reading Ordinance and summary granting TCI Cablevision of WA a non-exclusive tranchise to operate a - cable system within Bremerton. Motion to pass on second reading Ordinance #/7/j-~ and summary granting TCI Cablevision of WA a non-exclusive franchise to operate a cable system within Bremerton. o RESPONSIBLE OFFICIAL: Admin Services ENFORCEMENT OFFICIAL: Admin Services EXPIRATION DATE: REVIEW DATE: PULLED TABLED COUNCIL DIRECTIVE: 10. APPROVED DATE: 11. NOTICE OF ACTION DISAPPROVED AGENDA BILL NO: /5 CLEARANCE COMMENTS (cont.) : 4. SUMMARY STATEMENT (cont.): IMPACT ON NON-PASSAGE: We are on our second yearly extension with the old franchise. TCI is statutorily entitled to a renewal since they operate a viable cable system and have'negotiated in good faith. o IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES Public Access could lose TCI monthly contribution of $1734.00 without a new franchise. 7. RESEARCH SOURCES: Summary of ORDINANCE NO. AN ORDINANCE granting a non-exclusive franchise to TCl Cablevision of Washington, Inc. ("TCI") to operate and maintain a Cable Sytem throughout the City of Bremerton ("CITY"); setting forth provisions, terms and conditions of the grant of franchise; providing for City regulation and use of the Cable System, prescribing penalties for violation of franchise provisions; and terminating, except as otherwise provided by this Ordinance, Ordinance No. SECTION 1 - DEFINITIONS Pertinent terms, phrases and words are defined including the following key items: 1.1 1.3 1.5 1.9 1.20 1.21 1.23 Access Channel or PEG Channel PEG Access Facility Activated Channel Bi-directional Capability or Activated Bi-directional Capability Gross Revenue Institutional Network Interconnect or Interconnection SECTION 2 - FRANCHISE Describes franchise elements including a 10 year term (to be shortened to 8 years if system upgrade is not partially completed in 24 months), the non-exclusive grant of this franchise, franchise renewal (FCC) guidelines, periodic public review of franchise, change of ownership provisions, revocation criteria, and the City right to purchase the system upon denial of a renewal with mandatory continuity of service provisions and property removal guidelines. SECTION 3 - OPERATION IN STREETS AND RIGHTS-OF-WAY Addresses the requirements that must be met to construct, alter or maintain the cable system within the City right-of-way including compliance with applicable local permits and regulations, undergrounding, non-interference and notice procedures, tree trimming, restoration to public and private property, relocation of facilities in public right-of-way and safety requirements. SECTION 4 - SYSTEM DESIGN AND CAPACITY Describes the technical standards, emergency alert capability, and performance standards of the cable system, as well as outlines the system upgrade to 75 activated analog or digitally compresssed channels of programming to be completed within 36 months from the effective date of this Franchise. It also defines the aspect of future interconnection with contiguous cable systems to enhance PEG access. SECTION 5 - PROGRAMMING AND SERVICES Describes categories of programming, the basis for programming decisions, obscenity policy and parity of service and cable rates with Kitsap County upon completion of the system upgrade. SECTION 6 - PUBLIC, EDUCATIONAL AND GOVERNMENT USE OF SYSTEM Defines PEG Access including the retention of Channel 12 as the primary channel of PEG, additional PEG channels triggered by 1) City's request for first additional channel; 2) formula based on first run programming hours for second additional channel, financial support of PEG Access and equipment made up of a subscriber pass-thru fee of $.21 per month and direct contribution from TCI of $1,734.00 per month and retention of the PEG Access studio at TCI location as well as City Hall Council Chambers upgrade. Also, criteria for design and construction of future Institutional Network (l-Net) is developed. SECTION 7 - REGULATORY PROVISIONS Spells out City's authority to administer and enforce the provisions of this franchise including rate regulation, franchise fee disbursement, planning and coordinating cable service development throughout the City specifically relating to PEG Access and I-Net. Also, remedies for franchise violations are discussed. SECTION 8 - REPORTING REQUIREMENT Outlines the monthly, quarterly and annual reporting requirement of TCI with the recognition that the City will honor confidentiality to the maximum extent of State law. SECTION 9 - CUSTOMER SERVICE POLICIES Declares TCI's responsibility for effective customer response regarding service and repair requests, refund policy, termination charges and equipment return, customer service agreement and manual. SECTION 10 - LINE EXTENSION POLICY Defines standard installation criteria for new subscribers in the City, isolated areas where the cable connection is over 125 feet away and annexed areas. SECTION 11 - COMPENSATION AND FINANCIAL PROVISIONS Franchise fees and taxes are capped at an aggregate of 7% for the term of the Franchise. Books and records are subject to City review. Construction and Performance Bonds are required TCI CABLE FRANCHISE DRAFr, June 23, 1997 2.4 2.5 2.7 Co TCI agrees that its sole remedy under this provision, other than testimony before the City Council, is to seek injunctive relief to. prevent the issuance of a franchise which would violate the first paragraph. D. No provisions of this section shall be enforceable unless all are enforceable. NEW FRANCHISE The City may establish appropriate requirements for new franchises or franchise renewals so long as they are in accordance with federal, state and local law. F~cmsE Rm~WAL The City and TCI agree that any proceedings undertak~ by the City that relate to the renewal of TCI's Franchise shall be 8overned by and comply with the provisions of Section 626 of the Cable Act, as amended, unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal or state law. In addition to the procedures set forth in said Section 626(a), the City asxees to notify TCI of all of its assessments regarding the identity of future cable-related community needs and interests, as well as the qualifications and past performance of TCI under the then current Franchise term The City further agrees that such a pre 'inninary assessment shall be provided to TCI promptly so that TCI has adequate time to submit a proposal under Section 626(b) of the Cable Act and complete renewal of the Franchise prior to expiration of its term. TCI and the City consider the terms set forth in this Section to be consistent with the express provisions of Section 626 of the Cable Act and the Bremerton City Charter. ]~_.RIODIC I~v-BLIC REVIEW OF FRANCHISE At such times as it deems appropriate, but no more oi~en than annually, with no expectations regarding extension of franchise, the City may conduct a public review of the Franchise. The purpose of any such review shall be to ensure, with the benefit of full opportunity for public comment, that the Franchise continues to effectively serve the public in the light of new developments in cable law and regulation, cable technology, cable company performance, local re~datory environment, community needs and interests, and other such factors. Both the City and TCI agree to make a full and good faith effort to participate in the review. TRANSFER OF OWNERSHIP This Franchise shall not be sold, leased, mortgaged, assigned or otherwise transferred, nor shall any of the rights or privileges 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 TCI or any entity controlling, controlled by, or under common control with TCI, either by act of TC! or by operation of law, without the prior consent of the City, expressed in writing. The granting of such prior consent in o~ne instance shall not render unnecessary Page 7 TCI CA~t.E FP.A~CmS£ DRAFt, June 23, 1997 2.2 2.3 the City and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across or along any street or extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, utility access covers, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the cable system. Said Franchise shall constitute both a right and an obligation to provide the services of Cable System as required by the provisions of this Ordinance. FRANCE TERM The term of the Franchise shall be ten (10) years fi.om its effective date. However, ifTCI ha~ not up~radM the capacity of its Cable System so that at least 75 video analog or digitally compressed channels are available on the System to either 75% of the Subscribers within the entire Franchise area, or to all the Subscribers within 75% of the Franchise Area, within 24 months following the effective date of the Franchise, then the franchise term ~ be sh~ed__b~ 2_?ars to a t.o. ta~bi~'-y~arS from its'e~e~ ~e~T~ Franchise may also be extended-by'the City at it~~ s01e ~6n,-0r t'e~ed sooner in FRANCHISE NON-EXCLUSIVE The Franchise granted herein shall be non-exclusive. The City specifically reserves the right to grant, at any time, such additional franchises for a Cable System as it deems appropriate provided, however, such additional grants shall not operate to materially modify, revoke, or terminate any rights previously granted to TCI. The grant of any additional franchise shall not of itself be deemed to constitute a modification, revocation, or termination of rights previously granted to TCI. In addition, the following requirements shall apply: If the City issues a fi.anchise to a Person to enter upon the streets and public rights of way for the purpose of operating a Cable System to provide Cable Service to any part of the Franchise Area, the City shall ensure that, considering all the circumstances, including any limitations on its regulatory authority, no franchisee shall be discriminated against nor be granted an unfair competitive advantage over another, and that all parties are provided equal protection under the law; providing, however, that the City shall not be prohibited ~om granting any fi.anchise containing requirements greater than those of this Franchise. In the event there is a challenge to the City's decision to issue, or not to issue, a fi.anchise that may be subject to the preceding paragraph, and if the Ci~s decision is determined to be correct with evidence, testimony, or by the final judicial body reviewing it, then TCI shall indemnify the City, its officials, commissions, commissioners, agents and employees and hold them harmless against any claims, suits, causes of action, proceedings and judgements, whether for damages or equitable relief, and shall pay the City's costs incurred in defending against the same. f:..~v~,~ Page TCI CABLE Faxlqcms£ DP..S~w, June 23, 1997 4.2 4.3 go Fo premium channel or channels and, where technically and practically feasible, non- premium channels as well; Make available upon request and at a reasonable charge an RF switch (an A/B switch) permitting conversion from cable to antenna reception; Upon request, provide, without installation or monthly charge, one outlet of ail Basic Cable service and Expanded Basic Service or its equivalent, to any public fire station passed by the Cable System, and one outlet each to all public school and college classroom building(s) that are passed by the Cable System and all other public buildings listed in Appendix B, as well as all other such public buildings that may be constructed during the period of the Franchise that are passed by cable and within 125 feet of the trunk or distribution system. Additional outlets as agreed upon by the City and TCI will meet FCC technical standards and will be provided at no additional charge. Notwithstanding anything to the contrary set forth in this Section, TCI shall not be required to provide an outlet to such buildings, unless it is technically feasible and if it will not adversely affect the operation or market development of the Cable System to do so. The City and TCI agree that the provision of the outlets contemplated hereunder will not so adversely affect the operation or market development of the system, unless some unforeseen and unanticipated event occurs, e.g., such a substantial increase occurs in the cost of providing the outlet as to create the adverse effect, or if it becomes illegal to provide the outlets. TCI may charge its costs for the installation of that portion ofany service drop required in the Section which is in excess of one hundred twenty-five (125) feet. /f additional outlet of Basic and Expanded Basic Service are provided to such buildings, the building owner shall pay the usual installation fees associated therewith, including, but not limited to, labor and materials. The outlets of Basic and Expanded Basic Service shall not be used by the City to distribtite or sell services in or throughout such buildings nor shall such outlets be located in generally accessible public viewing areas. Go Nothing in this section shall prohibit TCI from activating portions of its upgraded system as they are completed in accordance with the construction schedule outlined in Section 4.3. EQUAL AND UNIFORM SV. RVlCE Upon completion of the upgrade of the System, TCI shall provide access to equal and uniform cable television service throughout the Franchise Area. In particular, cable service shall not be denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. SYSTEM CHANNEL CAPACITY UPGRADE A. Channel Capacity Upgrade and Completion Schedule TCI shall upgrade the channel capacity ofits'-system so that a minimum of 75 activated analog or digitally compressed video channels are available for programming, and shall Page 19 TCI CABLE FP.A~CHISE DRAFt, June 23, 1997 make service available on the upgraded System to all Subscribers in the Franchise area, within thirty-six (36) months after the effective date of this Franchise. Completion of the channel capacity upgrade shall be deemed accomplished when all walk-out, design, construction and activation are completed, and service is actually available to all Subscribers in the Franchise Area. However, nothing shall prohibit TCI from completing the channel capacity upgrade and offering services on the upgraded System on an area-by-area basis as construction allows. TCI shall provide to the City a status report on the progress of the upgrade every six months beginning upon the effective date of the Franchise, until full activation of the upgraded System is achieved. Within the first six (6) months TCI shall show substantial progress on the design phase of the upgrade. The system, as upgraded, shall have the capacity to provide pay-per-view and other services requiring Addressability. In all its construction and service provision activities, TCI shall meet or exceed the construction, technical performance, extension and service requirements set forth in this Franchise. During the construction period of the upgrade, TCI shall not be obligated to provide a refund or credit to customers where an outage was necessitated by the cut-over from the present System to the rebuilt or modified System. At the completion of the channel upgrade, it is TCI's intention to provide, at a minimum, 48 channels of basic and expended analog programming to mirror that which currently exist in the Kitsap County franchise area. If market conditions exist ~ that reduce this intended number by more than 5 channels, then TCI will provide to the City Council a written report detailing the market conditions that created the need for such a reduction. This report will be provided thirty (30) days in advance of any such occurrence. This does not limit the requirement of 75 activated analog or digitally compressed video channels. Remedies The City may assert any of the following remedies in the event TCI defaults on the completion of the channel capacity upgrade. Draw upon TCI's Construction Bond or Performance Bond (as provided for under . Sections 11.3 and 11.4) to recover damages for a default in which TCI delays completion of the channel capacity upgrade, provided, however, that no p~yment shall be made under such Construction Bond or Performance Bond in the event of a delay caused by acts of nature, force majeure or circumstance beyond the reasonable ability of TCI to control. In any other event, TCI shall pay to the City damages, in the amount of one thousand dollars ($1,000) per day for each day which is more than ninety (90) days after the deadline for completion of the upgrade, and accruing for a maximum of twelve (12) months. TCI and the City acknowledge and agree that the harm the City is likely to incur upon such TCI breach is such that it is incapable of ascertainment or very difficult to ascertain and that the foregoing liquidated damages are a reasonable forecast or just f.'~',,~,',,,,.,~ Page 20 TCI CABLE F~'~CH~S£ Dt~=r, June 23, 19~7 12.13 12.14 12.15 TCI TCI Cablevision of Washington, Inc. 1225 Sylvan Way Bremerton WA 98310 TCI West, Inc. 2233 112th Ave. NE Bellevue, WA 98004 EFFECTIVE DATE This Franchise shall take effect ten (10) days fi.om passage and publication. Provided, however, that if TCI does not accept this Franchise pursuant to Section 12.8 and comply with all conditions for such acceptance set forth herein within thirty (30) days aider passage of this Franchise Ordinance, this Franchise shall be null and void. APPLICATION FEE Prior to consideration of this Franchise by the City Council, TCI shall pay to the City a non-refundable application fee in the amount of five thousand dollars ($5,000). Such application fee shall not be regarded as fi.anchise fees, nor payment in lieu of franchise fees. TCI RESPONSIBILITY FOR COMPLIANCE DOCUMENTATION It shall be the responsibility of TCI to maintain all management information and record- keeping systems which will permit the clear, complete, and timely documentation of compliance with the requirements of this Franchise, including but not limited to the Customer Service Standards identified in Section 9.2; and any request by the City/'or such documentation shall be satisfied by TCI no later than 15 days following the request. APPROVED by the City Council this __ day of ,199__. PASSED by the City Council this day of ,199_. Approved this __ day of DAVID FARR, Council President · 199__. ATTEST: LYNN S. HORTON, Mayor KATHLEEN L. McCLUSKEY, City Clerk Page 47 as well as indemnification by TCI holding City harmless arising out of the operation and construction of the cable system. Comprehensive general liability insurance coverage in the annual aggregate of $5,000,000 is required. SECTION 12 - MISCELLANEOUS PROVISION Several areas of Franchise elements and governing laws and venues are discussed. APPROVED by the City Council on , __ and PASSED on The full text of this ordinance will be mailed to interested persons upon request. I-7 BREMERTON CABLE FRANCHIS TCI DRAFT, JUNE 23, 1997 TABLE OF CONTENTS ORDINANCE NO. EFFECTIVE DATE: 1. SECTION 1 - DEFINITIONS .............................................. 1 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 1.21 1.22 1.23 1.24 1.25 1.26 1.27 1.28 1.29 1.30 1.31 "AccEss CHANNEL" OR "PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS (PEG) CHANNEL" .................................................. 1 "ACCESS SERVICES" OR "PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS (PEG) CHANNEL" .................................................. 2 "PEG ACCESS FACILITIES" .......................................... 2 "ACCESS RESOURCES" .............................................. 2 "ACTIVATED CHANNELS" ............................................ 2 "ADDRESSABILITY" ................................................ 2 "AFFILIATE" ...................................................... 2 "BASIC SERVICE" OR "BASIC CABLE SERVICE" .......................... 2 "BI-DIRECTIONAL CAPABILITY" ...................................... 2 "CABLE ACT" ..................................................... 2 "CABLE SYSTEM" .................................................. 3 "CABLE SERVICE" ................................................. 3 "CHANNEL" ...................................................... 3 "CITY" .......................................................... "EXPANDED BASIC SERVICE" ......................................... 3 "FRANCHISE" ..................................................... 3 "FRANCHISE AREA" ................................................ 3 "FRANCHISE FEE" .................................................. 3 "GROSS RECEIFrS" "GROSS REVENUES" ................................................ 3 "INSTITUTIONAL NETWORK" ......................................... 4 "INTERACTIVE SERVICES" ........................................... 4 "INTERCONNECT OR INTERCONNECTION" ............................... 4 "LEASED ACCESS" ................................................. "PAY SERVICE OR PREMIUM SERVICE" ................................. "PERSON" ........................................................ "PUBLIC FACILITY" ................................................ "SCHOOL" ........................................................ 5 "SUBSCRIBER" .................................................... "STREET" ........................................................ "TCI" ........................................................... 2. SECTION 2 - FRANCHISE ............................................... 5 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15 2.16 GRANT OF FRANCmSE .............................................. FRANCH~E TERM .................................................. FRANCHISE NON-EXCLUSIVE ......................................... NEW FRANCHISE ................................................... 7 FRANCHISE RENEWAL .............................................. 7 ]~.~RIODIC ]~UBLIC REVIEW OF FRANCHISE ............................... 7 TRANSFER OF OWNERSHW ........................................... 7 CHANGE IN CONTROL ............................................... REVOCATION ..................................................... 9 RECE~v~RSHZP ................................................... 10 EXPIRATION ..................................................... ] 1 RIGIiT TO PURCHASE TH~ SYSTEM .................................... 11 RIGHT TO REQUIRE REMOVAL OF PROPERTY ........................... 12 CONTINUITY OF SERVICE MANDATORY ................................ 13 SURWVAL OF TERMS .............................................. 14 COSTS OF FRANCHISE COMPLIANCE .................................. 14 3. SECTION 3 - OPERATION IN STREETS AND RIGHTS-OF-WAY ............. 14 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 3.11 USE OF STREETS .................................................. 14 CONSTRUCTION OR ALTERATION ..................................... 14 NON-INTERFERENCE ............................................... 14 CONSISTENCY WITH DESIGNATED USE ................................ 15 UNDERGROUNOING ................................................ 15 RESTORATION .................................................... 16 TREE ~G ................................................. 17 RELOCATION ..................................................... 17 MOVEMENT OF BUILDINGS .......................................... 18 SAFETY REQLTnZEMENTS ............................................ 18 TRAFFIC CONTROL ................................................ 18 4. SECTION 4 - SYSTEM DESIGN AND CAPACITY .......................... 18 4.1 4.2 4.3 4.4 4.5 4.6 4.7 AVAILABILITY OF SIGNALS AND EQUIPMENT ............................ 18 EQUAL AND UNIFORM SERVICE ...................................... 19 SYSTEM CHANNEL CAPACITY UPGRADE ............................... 19 TECHNICAL STANDARDS ............................................ 22 PERFORMANCE TESTING ........................................... 23 INTERCONNECTION ................................................ 24 VIRTUAL HEADEND ................................................ 26 e SECTION 5 - PROGRAMMING AND SERVICES 5.1 5.2 5.3 5.4 5.5 CATEGORIES OF PROGRAMMING ..................................... 26 CHANGES IN VmEO PROGRAMMING .................................. 26 BASIS FOR PROGRAMMING DECISIONS ................................. 27 OBSCENITY ...................................................... 27 PARITY OF SERVICE AND RATES ...................................... 27 SECTION 6 - PUBLIC, EDUCATIONAL AND GOVERNMENT USE OF SYSTEM 27 6.1 PEGAccEsS ..................................................... 27 6.2 INSTITUTIONAL NETWORK .......................................... 30 7. SECTION 7 - REGULATORY PROVISIONS 7.1 7.2 7.:} 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 DELEGATION OF AUTHORITY TO REGULATE ............................ 32 AREAS OF ADMINISTRATIVE AUTHORITY ............................... 32 REGULATION OF RATES AND CHARGES ................................ 32 REMEDIES FOR FRANCHISE VIOLATIONS ............................... 33 PROCEDURE FOR REMEDYING FRANCHISE VIOLATIONS ................... 33 ENFORCEMENT ................................................... 34 FAILURE TO ENFORCE ............................................. 34 FORCE MAJEURE ................................................. 34 ALTERNATIVE REMEDIES ........................................... 34 COMPLIANCE WITH THE LAW ........................................ 35 8. SECTION 8 - REPORTING REQUIREMENTS .............................. 35 8.1 8.2 8.3 8.4 8.5 8.6 MONTHLY AND QUARTERLY REPORTS ................................. 35 ANNUAL REPORT ................................................. 36 MONITORING AND COMPLIANCE REPORTS ............................. 37 ADDITIONAL REPORTS ............................................. 37 COMMUNICATIONS WITH REGULATORY AGENCIES ....................... 37 PRESERVATION OF CONFIDENTIAL INFORMATION ........................ 37 9. SECTION 9 - CUSTOMER SERVICE POLICIF. S ............................ 38 9.1 RESPONSE TO CUSTOMERS AND COOPERATION WITH CITY ................. 38 9.2 COMPLL~d~CE WITH FCC STANDARDS ................................. 38 9.3 FAILURE TO IMPROVE CUSTOMER SERVICE ............................ 38 9.4 REFUNDS FOR OUTAGES ............................................ 38 9.5 TERMI]qATION OF SUBSCRIBER SERVICE ............................... 38 9.6 DEFINITION OF "COMPLAINT" ....................................... 38 9.7 CUSTOMER SERVICE AGREEMENT AND MANUAL ........................ 39 10. SECTION 10 - LINE EXTENSION POLICY ............................. 39 10.1 10.2 10.3 STANDARD INSTALLATION .......................................... 39 ISOLATED AREAS ................................................. 40 ~X~D AREAS .................................................. 40 11. SECTION 11 - COMPENSATION AND FINANCIAL PROVISIONS ......... 40 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9 FRANCI-HSE FEES .................................................. 40 OPEN BOOKS A~ Recom)s ......................................... 41 CONSTRUCTION PERFORMANCE BOND ................................. 42 FRANCHISE PERFORMANCE BOND .................................... 42 RECOURSE AGAINST BONDS AND OTI-IER SECURITIES ..................... 42 INDEMPOFICATION BY TCI .......................................... 43 TCI INSURANCE .................................................. 44 TAXES .......................................................... 44 FRANCHISING COSTS .............................................. 44 12. SECTION 12 - MISCELLANEOUS PROVISIONS ........................ 45 12.1 12.2 12.3 12.4 12.5 12.6 12.7 12.8 12.9 12.10 12.11 12.12 12.13 12.14 12.15 POSTING AND PUBLICATION ......................................... 45 GUARANTEE OF PERFORMANCE ...................................... 45 GOVERN-~G LAW AND VENUE ....................................... 45 SEPARABILITY ................................................... 45 CONSENT ........................................................ 45 ORDINANCES TERMINATED ......................................... 45 No TmRD PARTY BENEFICL~R~ES .................................... 45 FRANCHISE ORDINANCE ACCEPTANCE ................................ 45 INDEPENDENT CONTRACTORS ....................................... 46 ENTIRE AGREEMENT .............................................. 46 SUCCESSORS AND ASSIGNS .......................................... 46 NOTICE ......................................................... 46 EFFECTIVE DATE ................................................. 47 APPLICATION FEE ................................................ 47 TCI RESPONSIBILrrY FOR COMPLIANCE DOCUMENTATION ................ 47 APPENDIX A APPENDIX B APPENDIX C TCI Cnm.~ FP.A~CmS~. DP. AFr, June 23, 1997 ORDINANCE NO. AN ORDINANCE granting a non-exclusive franchise to TCI Cablevision of Washington, Inc. CTCF') to operate and maintain a Cable System throughout the City of Bremerton ("CITY"); setting forth provisions, terms and conditions of the grant of franchise; providing for City regulation and use of the Cable System; prescribing penalties for violation of franchise provisions; and terminating, except as otherwise provided by this Ordinance, Ordinance No. BE IT ORDAINED BY the City of Bremerton that a Franchise is hereby granted to TCI Cablevision of Washington, Inc., to operate and maintain a Cable System in the City of Bremerton upon the following express terms and conditions: 1. SECTION 1 - DEFINITIONS For the purposes of this Franchise, and without affecting any purpose outside this Franchise, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and the use of any gender shall be applicable to all genders whenever the sense requires. The words "shall" and "will" are mandatory and the word "may" is permissive. Where a term in the Franchise is not defined in this Section and there is a definition for the term in the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996 (hereinafter, collectively, the "Cable Act"), or in the Telecommunications Act of 1996, the Cable Act or Telecommunications Act definition shall apply. Other terms in the Franchise which are not defined in this Section shall be given their common and ordinary meaning. 1.1 "ACCESS CHANNEL" OR "PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS (PEG) CHANNEL" Any Channel or portion of a Channel utilized for non-commercial programming, where any individual or organization may be a programmer, without charge by TCI, on a non- discriminatory basis. A. "Educational Access Channel" means any Channel or portion of a Channel available for educational programming by individuals or institutions. B. "Government Access Channel" means any Channel or portion of a Channel available for programming by government agencies. Co "Public Access Channel" means any Channel or portion of a Channel where any member of the general public may be a programmer on a nondiscriminatory basis, subject to operating rules formulated by the City or its designee. Such rules shall not be designed to control the content of public access programming. Such rules shall also address the extent to which and manner in which members of the general public who are not residents of the City of Bremerton may be programmers on the Public Access Channel. C~ Pagel TCI CABLE FRANCmSE DRAFt, June 23, 1997 1.2 "AccEss SERVICES OR "PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS (PEG) CHANNEL" Programming provided on any Public, Educational or Government (PEG) Access Services. 1.3 "PEG ACCESS FACILITIES" Channei capacity designated for public, education, or governmental use; and facilities, and equipment such as modulators, demodulators and transmitters for the use of such Channel capacity. 1.4 "ACCESS RESOURCES" All capital and operating support and other financial means by which PEG access is exercised. 1.5 "ACTIVATED CHANNELS" Those channels engineered at the headend of a cable system for the provision of services generally available to residential subscribers of the cable system, regardless of whether such services actually are provided, including any channel designated for public, educational, or governmental use; 1.6 "ADDRESS~BILITY' The ability of a Cable System to allow TCI to authorize through remote control customer terminals to receive, change or to cancel any or all specified programming without visiting customers premises. 1.7 "AFFILIATE" The term "affiliate", when used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person; 1.8 "BASIC SERVICE" OR "BASIC CABLE SERVICE" Any tier of service regnlarly provided to all Subscribers. It includes, but is not specifically limited to, the retransmission of local broadcast television signals and the cablecasting of Public, Educational, or Governmental (PEG) Access Channels. 1.9 "BI-DIRECTIONAL CAPABILITY" AND "ACTIVATED BI-DIRECTIONAL CAPABILITY" The ability of the System to transmit video signals for Cable Services in both upstream and downstream directions between the System headend and each subscriber location without the installation of any major System components other than headend equipment, return modules and user equipment at Subscriber locations. "Activated Bi-directional Capability" means the ability of the System to provide Cable Services requiring Bi- Directional Capability without the installation of any major System components other than user equipment at subscriber locations. 1.10 "CABLE ACT" Page2 TCI CABLE FR~a4C~SE DP.~yr, June 23, 1997 1.11 Collectively the federal Cable Communications Policy Act of 1984 (Public Law No. 98-549,47 USC 521 (Supp.) and the Cable Television Consumer Protection and Competition Act of 1992, (Public Law No. 102-385) as may be amended fi.om time to time, or superseded in the future. "CABLE SYSTEM" The meaning specified for "Cable System" in the Cable Act. Unless otherwise specified it shah in this document refer to the Cable System constructed and operated in the City under this Franchise. 1.12 1.13 1.14 1.15 "CAIILE SERVICE" The same meaning specified for "Cable Service" in the Cable Act as amended. "CHANNEL" A portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television Channel (as television Channel is defined by the Commission by regulation). The City of Bremerton of the State of Washington and all incorporated territory within its present and future boundaries. "EXPANDED BASIC SERVICE" Optional services not included in the Basic Service and excluding premium or pay-per- view services. 1.16 1.17 1.18 1.19 1.20 "FRAN~SE" The fight granted by this Ordinance and conditioned as set forth herein by which the City authorizes TCI to erect, construct, reconstruct, operate, dismantle, test, use and maintain a Cable System in the City. "FRANCHISE AREA" That area within the present and future corporate limits of the City. "FRANCHISE FEE" The fee assessed by the City to TCI, in consideration of TCI's fight to operate the Cable System within the City's streets and rights of way, determined in amount as a percentage of TCI's gross revenues and limited to the maximum percentage allowed for such assessment by federal law. The term Franchise Fee does not include any tax, fee, or assessment of general applicability. "GROSS RECEIPTS" Gross Revenues less bad debt. "GROSS REVENUES" f.'~vkrra, tdoc Page 3 TCI CABLE FV, A}4CmSV. DgAFT, June 23, 1997 1.21 1.22 For the purpose of providing a basis for the determination of Franchise Fees, but without prejudice to any other purpose including without limitation the purpose of determining the basis for City business or utility taxes, "Gross Revenues shall have the following meaning. All mounts earned by TCI, any Affiliate of TCI, or any entity that constitutes a "cable operator" under the Cable Act definition, in whatever form and fi.om all sources, derived fi.om the operation of TCI's Cable System to provide Cable Service within the franchise area. "Gross Revenues" shall include, without limitation, amounts for: all Cable Services, e.g., basic service, expanded basic service, premium services, online services provided over the cable system containing programming content provided by TCI (unless determined by the FCC not to be a Cable Service); advertising commissions on sales of goods or services by third parties utilizing the Cable System to provide Cable Service in the Franchise Area (e.g., home shopping networks), installations, leasing, renting or selling of system equipment or leasing &capacity to provide Cable Service within the Franchise Area, and all other revenues derived fi.om the operation of TCI's Cable System to provide Cable Service within the Franchise Area, regardless of whether initially recorded to another entity and however characterized. Any sales, excise or other taxes or fees levied directly upon subscribers by a local, state or federal government and collected by TCI for direct pass-through to such government shall not be included in Gross Revenues. Subject to the limits and restrictions of federal and state law, copyright fees paid by TCI shall be included in gross revenues. However, Franchise Fees paid by TCI shall not be included in Gross Revenues, except as allowed under federal and state law and regulation. Gross Revenues shall not be double counted. Revenues of both TCI and an Affiliate that represent a transfer of funds between TCI and the Affiliate, and that would otherwise constitute Gross Revenues of both TCI and the Affiliate, shall be counted only once for purposes of determining Gross Revenues. "INSTITUTIONAL NETWORK" A communications network, which may include part of the Cable System, designed principally for the provision of non-entertainment, one-way and interactive services, not generally available to residential subscribers, but rather to schools, public agencies or other City-designated non-profit agencies for use in connection with the ongoing operations of such institutions. "INTERACTIVE SERVICES" Those services provided to subscribers whereby the subscriber has the ability to both receive information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber. "INTERCONNECT" OR "INTERCONNECTION' Page 4 TCI CABL~ FRA~CmSE DRAm', June 23, 1997 1.24 1.25 1.26 The physical linking of the Cable System with another cable system, programming source, or other communications system, to provide a sharing of programming between the Cable System and such other entity. "LEASED ACCESS" The use of Channel capacity designated for commercial use by persons unaffiliated with TCI in accordance with Section 612 of the Cable Act. "PAY SERVICE" OR "PREMIUM SERVICE" Programming choices (such as movie channels or pay-per-view programs) offered individually to subscribers on a per-channel, per-program or per-event basis. "PERSON" Any individual, corporation, partnership, association, joint venture or organization of any kind and the lawful trustee, successor, assignee, transferee or personal representative thereof. 1.27 1.28 "PUBLIC FACILITY" Any facility owned, operated or under the control of any city, county, state or federal government agency, public agency, public or private school or city-designated non-profit agency. "SCHOOL" Accredited public, private, or non-profit primary and secondary schools, colleges and universities. 1.29 "SUBSCRIBER" Any Person who legally received any one or more of the Cable Services provided by the Cable System. 1.30 "STREET" The surface of and the space above and below the right of way of any public street, road, highway, freeway, easement, lane, path, alley, court, sidewalk, parkway, or driveway now or hereafter existing as such within all incorporated areas of the City. 1.31 "TCI" TCI Cablevision of Washington, Inc., a Washington corporation, and its agents, successors and assignees. 2. SECTION 2 - FRANCHISE 2.1 GRAlVr OF FRANCHISE The City hereby grants to TCI Cablevision of Washington, Inc., a non-exclusive Franchise which authorizes TCI, subject to the terms of this Ordinance, to construct and operate a Cable System and offer Cable Service and Institutional Network services in, along, among, upon, across, above, over, under, or in any matter connected with the streets located in Page 5 TCI CABLE FRANCmSE DRAm', June 23, 1997 the City and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across or along any street or extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, utility access covers, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the cable system. Said Franchise shall constitute both a right and an obligation to provide the services of Cable System as required by the provisions of this Ordinance. 2.2 The term of the Franchise shall be ten (10) years from its effective date. However, ifTCI has not upgraded the capacity of its Cable System so that at least 75 video analog or digitally compressed channels are available on the System to either 50% of the Subscribers within the entire Franchise area, or to aH the Subscribers within 50% of the Franchise Area, within 24 months following the effective date of the Franchise, then the franchise term shah be shortened by 2 years to a total of 8 years fi.om its effective date. The Franchise may also be extended by the City at its sole discretion, or terminated sooner in accordance with this Ordinance. 2.3 FRANCHISE NON-EXCLUSIVE The Franchise granted herein shall be non-exclusive. The City specifically reserves the right to grant, at any time, such additional franchises for a Cable System as it deems appropriate provided, however, such additional grants shall not operate to materially modify, revoke, or terminate any rights previously granted to TCI. The grant of any additional franchise shall not of itself be deemed to constitute a modification, revocation, or termination of rights previously granted to TCI. In addition, the following requirements shah apply: If the City issues a franchise to a Person to enter upon the streets and public rights of way for the purpose of operating a Cable System to provide Cable Service to any part of the Franchise Area, the City shall ensure that, considering ah the circumstances, including any limitations on its regulatory authority, no franchisee shall be discriminated against nor be granted an unfair competitive advantage over another, and that all parties are provided equal protection under the law; providing, however, that the City shah not be prohibited from granting any fi.anchise containing requirements greater than those of this Franchise. B. In the event there is a challenge to the City's decision to issue, or not to issue, a fi.anchise that may be subject to the preceding paragraph, and if the City's decision is determined to be correct with evidence, testimony, or by the final judicial body reviewing it, then TCI shall indemnify the City, its officials, commissions, commissioners, agents and employees and hold them harmless against any claims, suits, causes of action, proceedings and judgements, whether for damages or equitable relief, and shall pay the City's costs incurred in defending against the Page 6 TCI CABLE FP~ANCHIS~. DRAFr, June 23, 1997 TCI agrees that its sole remedy under this provision, other than testimony before the City Council, is to seek injunctive relief to prevent the issuance of a franchise which would violate the first paragraph. D. No provisions of this section shall be enforceable unless all are enforceable. 2.4 Nv~w FaA~cmsE The City may establish appropriate requirements for new franchises or franchise renewals so long as they are in accordance with federal, state and local law. 2.5 FRA~C~-II~E RENEWAL The City and TCI agree that any proceedings undertaken by the City that relate to the renewal of TCI's Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended, unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal or state law. In addition to the procedures set forth in said Section 626(a), the City agrees to notify TCI of all of its assessments regarding the identity of future cable-related community needs and interests, as well as the qualifications and past performance of TCI under the then current Franchise term. The City further agrees that such a preliminary assessment shall be provided to TCI promptly so that TCI has adequate time to submit a proposal under Section 626(b) of the Cable Act and complete renewal of the Franchise prior to expiration of its term. Notwithstanding anything to the contrary set forth in this Section, TCI and the City agree that at any time during the term of the current Franchise, while affording the public appropriate notice and opportunity to comment, the City and TCI may agree to undertake and finalize informal negotiations regarding renewal thereof. TCI and the City consider the terms set forth in this Section to be consistent with the express provisions of Section 626 of the Cable Act. 2.6 PERIODIC PUBLIC REVIEW OF FRANCHISE At such times as it deems appropriate, but no more ot~en than annually, with no expectations regarding extension of franchise, the City may conduct a public review of the Franchise. The purpose of any such review shall be to ensure, with the benefit of full opportunity for public comment, that the Franchise continues to effectively serve the public in the light of new developments in cable law and regulation, cable technology, cable company performance, local regulatory environment, community needs and interests, and other such factors. Both the City and TCI agree to make a full and good faith effort to participate in the review. 2.7 TRANSFER OF OWNERSHIP This Franchise shall not be sold, leased, mortgaged, assigned or otherwise transferred, nor shall any of the rights or privileges 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 TCI or any entity controlling, controlled by, or under common control with TCI, either by Page 7 TCI CABLE FRA~CmSE DRAFT, June 23, 1997 act of TCI or by operation of law, without the prior consent of the City, expressed in writing. The granting of such prior consent in one instance shall not render unnecessary any subsequent prior consent in another instance. Any transfer of ownership shall make the Franchise subject to revocation unless and until the City shall have given written prior consent thereto. IfTCI wishes to transfer this fi-anchise, TCI and City shall proceed pursuant to Section 617 &the Cable Act and related rule makings of the FCC. TCI shall ~ive City written notice of the proposed transfer, and shall request consent of the transfer by the City. For the purposes of determining whether it will consent to such transfer, City may inquire into the qualifications of the prospective transferee to perform the obligations of TCI under this Franchise agreement. TCI shall assist City in any such inquiry, and shall provide all information requested in writing by the City that is reasonably necessary to determine the legal, financial and technical qualifications of the proposed transferee in order to determine whether it will consent to the proposed transfer. All costs associated with the City's review process, including but not limited to legal and consulting costs, shall be reimbursed to the City by TCI. In cases where the City finds it inappropriate to give unconditional consent to the proposed transfer, the City may offer its consent upon such terms and conditions as it deems appropriate, related to the qualifications of the prospective transferee to perform the obligations of TCI under this franchise. Consent to the transfer shall not be unreasonably withheld. Any transfer of ownership effected without the written consent of the City shall render this franchise subject to revocation. The City shall have 120 days to act upon any request for approval of a transfer that contains or is accompanied by such information as is required in accordance with FCC regulations and by the City. If the City fails to render a final decision on the request within said 120 days, the request shall be deemed granted unless TCI and the City agree to an extension of time. TCI, upon any transfer as heretofore described, shall within sixty (60) days thereat~er file with the City 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 TCI. Every such transfer as heretofore described, whether voluntary or involuntary, shall be deemed void and of no effect unless TCI shall within sixty (60) days at~er the same shall have been made, file such certified copy as is required. The requirements of this Section shall not be deemed to prohibit the use of TCI's property as collateral for security in financing the construction or acquisition of all or part of the Cable System franchised hereunder. However, such financing shall be subject to the provisions of this Franchise. 2.8 CHANCE IN CONTROL TCI shall promptly notify the City through the City Council of any proposed change in, transfer of, or acquisition by any other party of control of TCI. If ownership of thirty (30) percent or more of the voting stock of TCI, or of any parent company of TCI directly or indirectly controlling or managing TCI, or of any entity now owning or later f.'~.tv~aoc Page 8 TCI CABLE FgANCI-nsE D~r, June 23, 1997 2.9 acquiring such a beneficial interest is acquired by a single entity or by several entities under common control, and if such entity or agent of common control is other than an organization a) whose primary business is cable system operation, and b) is more than 50 percent owned by TCI or a parent of TCI, then a change in control will be deemed to have taken place unless the City, upon request of TCI, finds otherwise. Such change in control shall make this Franchise subject to revocation unless and until the City shall have given written consent thereto. For the purpose of determining whether it will consent to such change, transfer, or acquisition of control, the City may inquire into the qualifications of the prospective controlling party to perform the obligations of TCI under this Franchise. TCI shall assist the City in any such inquiry. The City may condition its consent upon such terms and conditions as it deems appropriate. Consent to the transfer shall not be unreasonably withheld. REVOCATION In addition to any rights set out elsewhere in this document, the City reserves the right, without prejudice to the requirements of Section 2.14, to declare a forfeiture or otherwise revoke the Franchise, and all rights and privileges pertaining thereto, in the event that: TCI is in substantial non-compliance with any material provision of the Franchise and fails to correct the violation at~er written notice of the violation and proposed forfeiture and a reasonable opportunity thereafter to correct the violation as noted in Section 7.6, Procedure for Remedying Franchise Violations; or TCI's completion of the channel capacity upgrade as required by Section 4.3 is delayed for more than 12 months from the completion date identified in the construction schedule approved by the City; or C. TCI or any parent company becomes insolvent, unable or unwilling to pay its debts as they become due, or is adjudged a bankrupt; or Do Eo Go Ho TCI 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; or At any time during the term of the Franchise, as it may be extended from time to time pursuant to this Ordinance, TCI fails to provide and maintain a Construction Bond and Performance Bond as required under Sections 11.3 and 11.4 and of this Ordinance; or TCI practices or attempts to practice any fraud or deceit upon cable subscribers or upon the City, whether during the term of the Franchise or in any proposal, application, or negotiations relating to the Franchise; or TCI fails to restore service after ten (10) consecutive days &interrupted service, except when approval of such interruption is obtained from the City; or TCI engages in a continuous and willful pattern of grossly inadequate service and fails to respond to legitimate subscriber complaints. Page 9 TCI CABLE FRA~CmSE DRAFT, June 23, 1997 Upon the occurrence of one of the events set out above, following thirty (30) days written notice to TCI of the occurrence and the proposed forfeiture and the completion of the procedures described in Section 7.6, the City may then commence an administrative proceeding in accordance with this Section to consider termination of the Franchise. The City and TCI shall attempt to jointly select a third party to conduct the administrative hearing. If the parties are unable to agree upon a single hearing officer, each may select one officer and the two officers so selected shall select a third officer. In any proceeding under this section, TCI shall be afforded adequate notice and TCI and the City shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the testimony of other persons such as officials, agents, employees or consultants as permitted by law and to question witnesses. A complete transcript shall be made of such proceeding. Upon the completion of the proceeding described above, the administrative hearing officer(s) shall issue a written decision setting forth the reasons for such a derision and shall transmit a copy of the decision to the City and TCI. After a public hearing at which the public and TCI may participate, the City Council may then accept, reject or modify the decision of the administrative hearing officer(s) and shall issue a written statement setting forth the reasons for its actions. TCI shall be bound by the City's decision, unless it appeals the decision within sixty (60) days of the date it is issued. IfTCI is adversely affected by the decision of the City, it may appeal the action in any court of competent jurisdiction. For purposes of that action, the parties stipulate that the record of the administrative hearing and the decisions of the administrative hearing officer(s) and the City shall constitute the entire factual record. 5. TCI shall be entitled to such relief as the court deems appropriate. The City may, at its sole discretion, take any lawful action which it deems appropriate to enforce the City's fights under the Franchise in lieu of revocation of the Franchise. Nothing contained in this Section shall prevent the issuance of a new franchise comaining terms substantially the same or identical to a franchise which previously was revoked, upon satisfactory assurances made to the City Council that the terms and conditions of this Franchise can be met by a new franchisee. Nothing in this Section shall mitigate TCI's obligation to provide continuity of service, as provided for in Section 2.14 2.10 The City shall have the fight, subject to Federal law, to declare a forfeiture or otherwise revoke the Franchise one hundred and eighty (180) days after the appointment of a receiver, or trustee, to take over and conduct the business of TCI, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or f.' ~Ct v ~ran. doc Page 10 TCI CABLE FRA~CmSE D~vr, June 23, 1997 2.11 2.12 trusteeship shall have vacated prior to expiration of said one hundred and eighty (180) days, or unless: Within one hundred and eighty (180) days after his election or appointment, such receiver or trustee shall have been approved by the City and shall fully have complied with all the provisions of this Franchise and remedied all defaults thereunder; and, Bo Such receiver or trustee, within said one hundred and eighty (180) days, shall have executed an agreement, duly approved by the City, as well as the court havin8 jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this Franchise. EXPIRATION Upon expiration of the Franchise, the City shall have the right, at its own election subject to Section 626 of the Cable Act, to: A. Renew the Franchise, in accordance with applicable law; B. Invite additional franchise applications or proposals; C. Take such other action as the City deems appropriate. RIGHT TO PURCHASE THE SYSTEM A. Ifa renewal or extension of the Franchise is denied, or the Franchise is lawfully terminated, and the City Council has so ordered by ordinance, TCI shall continue its operations for a period of 270 days after either the effective date of such ordinance or expiration of the initial or extended term of the Franchise, whichever date is later, unless the ordinance in either case orders termination by TCI of its operations at an earlier time. During this period, TCI shall not transfer any portion of its Cable System to any other Person, including parts of the System rented, leased, or lease-purchased without prior written consent of the City. Within 30 days of the order by the City to continue operations, TCI shall tender to the City an inventory of its system used in the operations under this Franchise. Aider receiving the inventory, the City may notify TCI that it desires to acquire by purchase all or a portion of the System used by TCI in its operation, exclusive of parts of the System essential to TCI's operation of parts of the System, or of other systems, not acquired. Such notice shall be by ordinance or other appropriate writing of the City and shall state a date upon which TCI shall cease its operations and receive payment as described below. Under this Section, if a Franchise renewal is denied, the City shall have an option to acquire TCI's System at fair market value, determined on the basis of the Cable System valued as a going concern but with no value allocated to the Franchise itself. If the Franchise is revoked for cause, the City shall have an option to acquire TCI's System at an equitable price. The fair market value or the equitable price of the Cable System for purposes of this Subsection shall be determined by mutual agreement between the City and TCI. If such mutual agreement is not reached, then the City may demand that such valuation ~ ~ Page l l TCI C~BLE FP.~qcms£ DtO~-T, June 23, 1997 be determined by an appraisal committee, as provided in Subsection (B) below. The appraisers selected for this committee shall be knowledgeable in valuation of Cable Systems. During any period of continued operation under this Section, except for the use of TCI's property as collateral for security in financing the construction or acquisition of all or part of the Cable System, TCI shall not sell, assign, transfer, or lease to any other Person, firm or corporation, any portion of the System used by it in its operations without the prior written consent of the City. Appraisal as provided in Subsection (A) of this Section shall be final and binding upon both parties, subject to: (1) the City's right within 60 days of determination of valuation to decide by appropriate ordinance or other writing not to acquire all or any part of the System subject to the valuation pro~eding; and (2) the City's right to decide to acquire through the sale of bonds, but subject to and conditioned upon any necessary voter approval of the bond funding for acquisition of all or a part of the System and, if applicable, the successful sale of the bonds. The City may choose to employ appraisal by appropriate ordinance or other writing of its governing body. In the ordinance or other writing the governing body shall appoint one appraiser, and TCI, by written notice, shall appoint one appraiser within fit~een (15) days after passage of such ordinance or other writing. The two so appointed shall select a third appraiser within f~een (15) days aider the appointment of the second appraiser. 'The appraisers shall make a written report to the City and TCI of their determination of the value of the System, or relevant part thereof, within ninety (90) days after the appointment of the third appraiser. The determination of a majority of the appraisers shall constitute the appraisal determination hereunder. The City and TCI shall pay the cost of their chosen appraiser and the cost of the third appraiser shall be divided equally between the City and TCI. In the event the City purchases, acquires, takes over, or holds all or parts of the System pursuant to Subsection (A) above, the City 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 the City deems appropriate. In the event a franchise renewal is denied or terminated for cause as set forth in Section 2.9 of this Franchise, and the City does not exercise the option to purchase the System, the City must allow TCI to effect transfer to another purchaser consistent with the transfer provisions of this Franchise. 2.13 RIGHT TO REQUIRE REMOVAL OF PROPERTY At the expiration of the term for which the Franchise is granted providing no renewal is granted, or upon its forfeiture or revocation of the Franchise, as provided for by this Franchise, the City shall have the right to require TCI to remove, at TCI's own expense, all or any part of the Cable System from all streets and public ways within the Franchise Area, except for any parts of the System which the City may permit to be abandoned in f.'~a~t do~ Page l2 TCI CABLE FRA~CmSE DRAFT, June 23, 1997 place. If TCI fails to do so, the City may perform the work and collect the cost thereof fi.om TCI. The actual cost thereof, including direct and indirect administrative costs, shall be a lien upon all plant and property of TCI effective upon filing of the lien with the Kitsap County Auditor. Any order by the City Council to remove all or a part of the Cable System shall be sent by registered mail to TCI not later than thirty (30) calendar days following the date of expiration or revocation of the Franchise. TCI shall file written notice with the City Clerk not later than (30) calendar days following the date of the receipt of such order of its intention to remove cable intended to be removed and a schedule for removal by location. The schedule and timing of removal shall be subject to approval and regulation by the City. Removal shall be completed not later than nine months following the date of expiration or revocation of the Franchise and receipt by TCI of the City's order to remove all or part of the Cable System. Any property of TCI to be abandoned in place shall be abandoned in such manner as the City shall prescribe. Upon permanent abandonment of the property of TCI in place, the property shall become that of the City, and TCI shall submit to the City Clerk an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property. None of the foregoing affects or limits TCI's rights to compensation for an involuntary abandonment of its property under State, or Federal law. In the event the City and TCI are unable to agree as to whether an abandonment is voluntary for the purposes of this Section either party may invoke arbitration to resolve such question. TCI shall not remove any underground cable or conduit which requires trenching or other opening of the streets along the extension of cable to be removed, except as hereinat~er provided. TCI may voluntarily remove any underground cable fi.om the streets which has been installed in such a manner that it can be removed without trenching or other opening of the streets along with extension of cable to be removed. Subject to applicable law, TCI shall remove, at its sole cost and expense, any underground cable or conduit by trenching or opening of the streets along the extension thereof or otherwise which is ordered to be removed by the City Council based upon a determination, in the sole discretion of said Council, that removal is required in order to eliminate or prevent a hazardous condition. 2.14 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 TCI are honored. In the event that TCI elects to overbuild, rebuild, modify, or sell the system, or the City revokes (in accordance with Section 2.9) or fails to renew the Franchise, TCI shall make its best effort to ensure that all subscribers receive continuous uninterrupted service, regardless of the circumstance. 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 ora cable communications fi.anchise, TCI shall cooperate fully to operate the System in accordance with the terms and conditions of this Franchise for a temporary period sufficient in length to maintain continuity of service to all subscribers. 5 Page 13 TCI CABLE F~CmSE DRAFr, June 23, 1997 2.15 2.16 3.2 3.3 In the event TCI fails to operate the Cable System for seventy-two (72) continuous and consecutive hours without prior notification to and approval of the City Council or without just cause such as an impossibility to operate the system because of the occurrence of an act of God or other circumstances reasonably beyond TCPs control, the City may, aider notice and an opportunity for TCI to commence operations at its option, operate the system or designate someone to operate the system until such time as TCI restores serv/ce to conditions acceptable to the City Council or a replacement operator is selected. If the City is required to fulfill this obligation for TCI, TCI shah reimburse the City for all reasonable costs or damages in excess of revenues from the system received by the City that are the result of TCI's failure to perform. SURVIVAL OF ~ Sections 2.12, 2.13, 2.14, 11, and 12 of this Franchise shall continue in effect as to TCI notwithstanding any expiration, forfeiture, or revocation of the Franchise, until such time as a transfer, sale, or assignment of the System is completed. COSTS OF FRANCHISE COMPLIANCE TCI shall bear the cost of compliance with all provisions of this Franchise, unless otherwise explicitly provided for in the Franchise or federal, state or local law. Nothing in this Section shah affect the fight of TCI to pass the costs of certain Franchise obligations through to its subscribers in accordance with applicable law and regulation. SECTION 3 - OPERATION IN STREETS AND RIGHTS-OF-WAY USE OF STREETS TCI may, subject to the terms of this Franchise, erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the streets within the City such lines, cables, conductors, ducts, conduits, vauks, utility access covers, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of a Cable System with the City. TCI may make available to the City at no cost such pole, conduit, duct and other improvements for shared use. These uses will be non-commercial, and may include but not be limited to street lighting, traffic signal interconnect wiring and city communications. The shared uses must not interfere with TCI signal. CONSTRUCTION OR ALTERATION TCI shah in all cases comply with all lawful City ordinances and regulations ofgenerai applicability regarding the acquisition of permits and such other items as may be reasonably required in order to construct, alter or maintain the Cable System. TCI shall make available, at TCI local office, information to the City regarding its progress in completing or altering the cable system. NON-INTERFERENCE TCI shah construct and maintain a Cable System so as to cause a minimum of interference with other use of streets, and shall perform its work using suitable barricades, flags, lights, Page 14 TCI CABLE FRAnCHiSE DRAFt, June 23, 1997 3.4 3.5 flares, or other devices as are reasonably required for the safety of the public in accordance with local and State policies and procedures. TCI shall utilize existing poles, conduit systems and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduit systems, or other facilities whether on public property or on privately owned property until approval of the property owner or appropriate governmental authority is obtained. Such governmental approval shall not be unreasonably withheld if said approval complies with that authofity's regulations, codes and policies. However, the location of any pole or wire-holding structure by TCI shall not constitute a vested interest, and such poles, structures, or facilities shall be removed, replaced or modified by TCI at its own expense whenever the Council or other governmental authority reasonably determines that the public interest so necessitates. Ao Notice of Construction. At least fifteen (15) days prior to any intended construction, TCI shall inform all residents in the affected area that a construction project will commence, the dates and nature of the project, and a toll-free telephone number which the subscriber may call for further information. A pre-printed door hanger may be used for this purpose. Bo Notice of Emry on Private Property. At least twenty-four (24) hours prior to entering private property or streets or public easemems adjacent to or on such private property to perform new plant construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted upon the affected property. TCI shall make a good faith effort to comply with the property owner/resident's preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices. Emergency Repairs. Notice requirements of subsections A and B above, are suspended for purposes of entry upon private property to perform repairs at the subscriber's request or in the event of system outage repairs or other emergencies in which insufficient time is available to provide notice to subscribers. CONSISTENCY WITH DESIGNATED USE Notwithstanding the above grant to use streets, no street shall be used by TCI if the City, in its sole opinion, determines that such use is inconsistent with the terms, conditions or provisions by which such street was created or dedicated, or presently used under State and local laws. UNDERGROUHDING TCI shall place underground at the lowest possible cost all of its transmission lines which are located or are to be located above or within the streets of the City in the following cases: A. All existing utilities are placed underground; ~7 Pagel5 TCI CABLE FRANC~SE DRAFT, June 23, 1997 3.6 B. Statute, ordinance, policy or other regulation of the City requires utilities to be placed underground; C. The overhead lines of all utilities are converted to underground in a particular location. D. TCI is unable to get pole clearance; E. Underground easements are obtained from developers of new residential areas; or F. Utilities are overhead but residents prefer underground (construction and relocation to be provided at residents' expense). TCI shall participate in conversion to underground Local Improvement Districts (LIDs). TCI shall fairly share with other utilities the cost of undergrounding when provided through the LID process. TCI shall provide the pre 'lmainary cost estimate, facility conversion designs and final cost estimates to the LID project coordinator in a timely manner. At the request of the LID project coordinator, TCI shall perform underground construction and overhead reclaim services in coordination with the undergrounding services provided by other LID utilities. The City shall make available to TCI all records of the issuance of building or development permits for planned commerdal or residential developments within the Franchise Area requiring undergrounding of cable facilities. TCI shall be responsible for engineering, deployment of labor, and cable facilities, but shall not be responsible for the digging and backfilling of trenches. Installation from utility easements to individual homes or other structures in a new development shall be at the cost of the home/building owner or Developer unless otherwise provided. RESTORATION In case TCI disturbs any street, public way, paved area or public improvement, TCI shall, at its own cost and expense and in accordance with the requirements of local law, restore such street, public way, paved area or public improvement to a condition fully meeting City approved and published policies and/or ordinance requirements. TCI shall perform all restoration work promptly. IfTCI fails, neglects or refuses to make restorations as required under this Section, then the City may do such work or cause it to be done, and the cost thereof to the City shall be paid by TCI. IfTCI causes any damage to private property in the process of restoring facilities, TCI shall pay the owner of the property for such damage, or repair or restore the property to its condition prior to the damage. In any dispute over the adequacy of a restoration relative to this Section, the Bremerton Department of Public Works shall in its sole discretion make the final determination. Page 16 TCI C,~LE F~CmSE Dics~r, June 23, 1997 3.7 TREE TRIMMING TCI shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and public ways, subject to the requirements of the City's tree tfimmin8 ordinance, Ordinance No. 4553 as it may be amended from time to time. TCI will provide all tree trimming in accordance with American National Standard ANSI-D 6.1, 1978 Electrical Hazards. 3.8 RELOCATION If, during the term of the Franchise, the City or any government entity elects or requires a third party to alter, repair, realign, abandon, improve, vacate, reroute or change the grade of any street, public way or other public property; or to construct, maintain or repair any public improvement; or to replace, repair, install, maintain, or otherwise alter any cable, wire conduit, pipe, line, pole, wireholding structure, structure, or other facility, including a facility used for the provision of utility or other services or transportation of drainage, sewage or other liquids, TCI shall, upon request by the City, except as otherwise hereinafter provided, at no expense to the City remove or relocate as necessary its poles, wires, cables, underground conduits, vaults, pedestals, utility access covers and any other facilities which it has installed. If during the term of the Franchise another entity wNch holds a franchise or any utility requests TCI to remove or relocate such facilities to accommodate the construction, maintenance or repair of the requesting party's facilities, or their more efficient use, or to "make ready" the requesting party's facilities for use by others, or because TCI is using a facility which the requesting party has a fight or duty to remove, TCI shall do so. The companies involved may decide among themselves who is to bear the cost of removal or relocation, provided that the City shall not be liable for such costs. Any person authorized by the City and requesting TCI to remove or relocate its facilities shall give TCI no less than thirty (30) days advance written notice to TCI advising TCI of the date or dates removal or relocation is to be undertaken, provided that, no advance written notice shall be required in emergencies or in cases where public health and safety or property is endangered. If TCI fails, neglects or refuses to remove or relocate its facilities as directed by the City; or in emergencies or where public health and safety or property is endangered, the City may do such work or cause it to be done, and the cost thereof to the City shall be paid by TCI. If TCI fails, neglects or refuses to remove or relocate its facilities as directed by another franchisee or utility, that franchisee or utility may do such work or cause it to be done, and ifTCI would have been liable for the cost of performing such work, the cost thereof to the party performing the work or having the work performed shall be paid by TCI. If TCI causes any damage to private property or public property in the process of removing or relocating its facilities, TCI shall pay the owner of the property for such damage, or repair or restore the property to its condition prior to the damage. Page 17 TCI CABLE FRANCHiSe. Drtnrr, June 23, 1997 3.9 MOVEMENT OF BUILDINGS TCI shall, upon seven (7) days' notice and request by any Person holding a building moving permit, franchise or other approval issued by the City, temporarily remove, raise or lower ks wire to permit the movement of the building. The expense of such removal, raising or lowering shall be paid by the person requesting same, and TCI shall be authorized to require such payment in advance. 3.10 SAFETY REQUIREMENTS TCI, in accordance with applicable National, State, and Local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. If a violation of any applicable regulation is found to exist, the City will, at~er discussions with TCI, establish a reasonable time for TCI to make necessary repaks. If the repairs are not made within the established time frame, the City may make the repairs itself or have them made and collect all reasonable costs thereof from TCI. 3.11 TRAFFIC CONTROL All construction within the City's right of way shall comply with the latest edition of the Manual on Uniform Traffic Control Devices (MUTCD) Part VI Standards and Guides for Traffic Controls for Street and Highway Construction, Maintenance, Utility and Incident Management Operations. Failure to comply with these standards shall be cause to stop construction until all traffic control issues are addressed. It shall be the responsibility of TCI to assure full compliance when working within the public right of way. 4. SECTION 4 - SYSTEM DESIGN AND CAPACITY 4.1 AVAILABILITY OF SIGNALS AND EQUIPMENT TCI shall, at a minimum: A. Make available to subscribers all signals that are required to be made available by the FCC or as federal law provides; B. Distribute, in color, all television signals which are received in color unless a substantial reason for noncompliance can be demonstrated; Co Make available a minimum of 75 activated analog or digitally compressed video programming Channels, including Channels carrying all Basic Cable services, in accordance with the channel capacity upgrade required in Section 4.3; Make available parental control or "lock-out" devices (audio and visual) upon request by subscriber and at a reasonable charge. These devices should provide the greatest degree of parental discretion and control to prevent unauthorized viewing of any Page 18 TCI CABLE FRAlqCHISE DRAFT, June 23, 1997 premium channel or channels and, where technically and practically feasible, non- premium channels as well; Make available upon request and at a reasonable charge an RF switch (an A/B switch) permitting conversion from cable to antenna reception; Upon request, provide, without installation or monthly charge, one outlet of all Basic Cable service and Expanded Basic Service or its equivalent, to any public fire station passed by the Cable System, and one outlet each to all public school and college classroom building(s) that are passed by the Cable System and all other public buildings listed in Appendix B, as well as all other such public buildings that may be constructed during the period of the Franchise that are passed by cable and within 125 feet of the trunk or distribution system. Additional outlets as agreed upon by the City and TCI will meet FCC technical standards and will be provided at no additional charge. Notwithstanding anything to the contrary set forth in this Section; TCI shall not be required to provide an outlet to such buildings, unless it is technically feasible and if it will not adversely affect the operation or market development of the Cable System to do so. The City and TCI agree that the provision of the outlets contemplated hereunder will not so adversely affect the operation or market development of the system, unless some unforeseen and unanticipated event occurs, e.g., such a substantial increase occurs in the cost of providing the outlet as to create the adverse effect, or if it becomes illegal to provide the outlets. TCI may charge its costs for the installation of that portion of any service drop requiredlin the Section which is in excess of one hundred twenty-five (125) feet. If additional outlet of Basic and Expanded Basic Service are provided to such buildings, the building owner shall pay the usual installation fees associated therewith, including, but not limited to, labor and materials. The outlets of Basic and Expanded Basic Service shall not be used by the City to distribute or sell services in or throughout such buildings nor shall such outlets be located in generally accessible public viewing areas. Nothing in this section shall prohibit TCI from activating portions of its upgraded system as they are completed in accordance with the construction schedule outlined in Section 4.3. 4.2 EQUAL AND UNIFORM SERVICE Upon completion of the upgrade of the System, TCI shall provide access to equal and uniform cable television service throughout the Franchise Area. In particular, cable service shall not be denied to any group of potential residential cable subscribers because oftbe income of the residents of the local area in which such group resides. 4.3 SYSTEM CHANNEL CAPACITY UPGRADE A. Channel Capacity Upgrade and Completion Schedule TCI shall upgrade the channel capacity of its system so that a minimum of 75 activated analog or digitally compressed video channels are available for programming, and shall .f:.' bn~tvfr an. do~ Page 19 TCI CABLE F~,NCI~SE DRAFT, June 23, 1997 Be make service available on the upgraded System to all Subscribers in the Franchise area, within thirty-six (36) months after the effective date of this Franchise. Completion of the channel capacity upgrade shall be deemed accomplished when all walk-out, design, construction and activation are completed, and service is actually available to all Subscribers in the Franchise Area. However, nothing shall prohibit TCI from completing the channel capacity upgrade and offering services on the upgraded System on an area-by-area basis as construction allows. TCI shall provide to the City a stares report on the progress of the upgrade every six months beginning upon the effective date of the Franchise, until full activation of the upgraded System is achieved. Within the first six (6) months TCI shall show substantial progress on the design phase of the upgrade. The system, as upgraded, shall have the capacity to provide pay-per-view and other services requiring Addressability. In all its construction and service provision activities, TCI shall meet or exceed the construction, technical performance, extension and service requirements set forth in this Franchise. During the construction period of the upgrade, TCI shall not be obligated to provide a refund or credit to customers where an outage was necessitated by the cut-over from the present System to the rebuilt or modified System. Remedies The City may assert any of the following remedies in the event TCI defaults on the completion of the channel capacity upgrade. Draw upon TCI's Construction Bond or Performance Bond (as provided for under Sections 11.3 and 11,4) to recover damages for a default in which TCI delays completion of the channel capacity upgrade, provided, however, that no payment shall be made under such Construction Bond or Performance Bond in the event of a delay caused by acts of nature, force majeure or circumstance beyond the reasonable ability of TCI to control. In any other event, TCI shall pay to the City damages, in the amount of one thousand dollars ($1,000) per day for each day which is more than ninety (90) days after the deadline for completion of the upgrade, and accruing for a maximum of twelve (12) months. TCI and the City acknowledge and agree that the harm the City is likely to incur upon such TCI breach is such that it is incapable of ascertainment or very difficult to ascertain and that the foregoing liquidated damages are a reasonable forecast or just compensation for such harm to which the City shall be entitled regardless of the amount of its actual damages. The City shall be entitled to draw upon the Construction Bond or Performance Bond to collect the foregoing damages (in addition to its ability to draw upon the Construction Bond or Performance Bond for any other default). No payment of damages hereunder will, in any manner or degree, release TCI from its obligations and liabilities to complete the entire channel capacity upgrade described under this Section 4.3 of the Franchise. Page 20 TCI C,~L~ Fm~aqc}llss DRAm', June 23, 1997 2. Termination of the Franchise for delays in upgrade completion exceeding twelve (12) months. C. Hearing Process If the City concludes that TCI is liable for damages subject to forfeiture of its Construction Bond pursuant to Sections 4.3, 11.3, and 11.4, and the City decides to give notice to TCI of its intention to draw upon the-Construction Bond or Performance Bond (as described in Sections 11.3 and 11.4), then the City shall give such notice by certified mail or hand delivery. The notice shall set forth the basis for the assessment, and shall inform TCI that damages will be assessed from the date of the notice unless the assessment notice is appealed for hearing before the City Council. o Should TCI desire a hearing before the City Council, TCI shall send a written notice of appeal by certified mail to the City Clerk within thirty (30) days from the date on which TCI received the notice of intention to assess damages. The hearing on TCI's appeal shall be within sixty (60) days from the date on which the City received its notice of appeal from TCI. Unless the City Council rules (1) that the violation has been corrected, or (2) that an extension of time or other relief should be granted, said damages hearing on TCI's appeal shall be within sixty (60) days from the date on which the City received its notice of appeal from TCI. Unless the City Council rules (1) that the violation has been corrected, or (2) that an extension of time or other relief should be granted, said damages shall be assessed beginning with the date on which the City sent the notice of the intention to assess damages and continuing thereafter until such time as the City determines that the violation has ceased, such determination not to be unreasonably withheld. D. Right of Inspection of Construction The City shall have the fight to inspect all construction or installation work performed within the Franchise area, and to make such tests as it shall find necessary to ensure compliance with the terms of this Franchise and the Federal Communications Commission (FCC) Rules and Regulations, Part 76, Subpart K (Technical Standards). Emergency Alert Capability TCI shah meet or exceed FCC guidelines (CFR 47, I, C, 11) in providing the capability for the City to transmit an emergency alert signal to all subscribers from the City's Public Works Complex, and from TCI's East Bremerton Headquarters or an alternative East side location to be approved jointly by the City and TCI. Subject to federal and state laws and regional planning authorities, the City may initiate the operation of the emergency alert system (EAS) at any time, and the City may at its option elect to share this service with adjoining communities. Emergency alert ~ ~ Page21 TCI Cam. E Fv..~qChaS£ DRAFT, June 23, 1997 4.4 capability, as required in this Section, shall be operational within six (6) months of franchise acceptance date. The City shall permit only appropriately trained and authorized Persons to operate the EAS equipment. Except to the extent expressly prohibited by law, the City shall hold TCI, its employees, officers, and assigns, harmless from any claims arising out of the City's negligence in the emergency use of TCI facilities, including, but not limited to reasonable attorney's fees and costs. Additionally, the City shall indemnify and hold harmless TCI against damage, loss or inappropriate use of the equipment by the City and shall agree to use due care and to take reasonable precautions against such damage, loss or inappropriate use of the EAS equipment or other Cable System equipment which may be used during a declared emergency. However, no indemnity is provided under this Section for any EAS or EAS use that TCI is required to provide under federal law. F. Standby Power TCI shall provide standby power generating capacity at the Cable System control center and at all hubs. TCI shall maintain standby power system supplies, rated at least at two (2) hours duration, throughout the trunk and distribution networks. In addition, TCI shall have in place throughout the Franchise term a plan, and all resources necessary for implementation of the plan, for dealing with outages of more than two hours. This outage plan and evidence of requisite implementation resources shall be presented to the City for approval prior to the effective date of this Franchise. G. Provision of Bi-Directional Capability and Other System Capabilities TCI shall construct the upgraded system with Bi-directional Capability. At periodic reviews, not less than every third year, the City may submit information demonstrating the demand for services requiring Activated Bi-directional Capability or other increased technical capabilities of the System. TCI shall provide Activated Bi- directional Capability when technical and economic viability are demonstrated; except that, upon completion of the upgrade but without further condition, TCI shall provide Activated Bi-directional Capability within twelve (12) months of notification that the following standardhas been met: such Activated Bi-Directional Capability is provided in Kitsap County, or when 40% of systems operated by TCI or any Affiliate in King, Pierce, Kitsap and Snohomish Counties or such Capability is provided in any adjacent system. TECHNICAL STANDARDS The Federal Communications Commission (FCC) Rules and Regulations, Part 76, Subpart K (Technical Standards), as now or hereafter constituted or amended, shall apply. The Page 22 TCI CABLE FRANCI-nSE DRAm', June 23, 1997 City may establish reasonable technical standards for the performance of the Cable System if the FCC permits it to do so, or ii'the FCC standards are repealed in whole or in part. FCC technical standards may be enforced by the City to the extent that, and only to the extent that, such enforcement is permitted under Federal law and regulation. Upon request, TCI shall provide the City copies of the results of all System tests required by the FCC. Regardless of the physical location of the System headend, the System within the City shall deliver technical quality equivalent to having the master headend located within the City's boundaries; and shall permit bi-directional transmission of all PEG Access, leased access, and Institutional Network signals in a manner equivalent to that provided through location of the headend within the City's boundaries. In the construction, operation and maintenance of the System, TCI shall also comply, at a minimum, with the following: 1. Applicable City, State and National/Federal Codes and Ordinances; 2. Applicable Utility Joint Attachment Practices; 3. The National Electric Safety Code; ANSI C2; 4. City Utility Code Requirements; 5. City Rights-of-Way Procedures; The City is authorized to inspect the Cable System at anytime to ensure compliance and reserves the right to see that the System of TCI is constructed and maintained in a safe condition, and if unsafe condition is found to exist, to order TCI, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition. 4.5 PERFORMANCE TESTING The following requirements shall be met by TCI, to the extent that these requirements can legally be imposed in a franchise under federal law and regulation. TCI shall perform all system tests at the intervals required by Section 76.601 of the Federal Communications Commission (FCC) Rules and Regulations, Part 76, Subpart K (Technical Standards), and all other tests reasonably necessary to determine compliance with technical standards required by this Franchise. These tests shall include, without limitation: A. Initial proof of performance for any construction; B. Semi-annual compliance tests; C. Tests in response to subscriber complaints; and D. Tests reasonably requested by the City to demonstrate Franchise compliance. fi lrnctv~aa doc Page 23 TCI CABLE FRANCHISE DR,~n', Juno 23, 1997 Written records of all System test results performed by or for TCI shall be maintained for three (3) years, and shall be available for City inspection upon request. For initial and semi-annual FCC proof-of-performance tests, the City shall be given the opportunity by TCI to review test sites. The tests may be witnessed by representatives of the City, and TCI shall inform the City of the time and place of each test no less than three weeks prior to the test. Written test reports shall be submitted to the City. The City may conduct independent tests of the system for which TCI shall give its fullest cooperation. If more than one of the locations tested fail to meet the performance standards, TCI shall be required to indicate what corrective measures have been taken, and the entire test shall be repeated at the locations which failed. Ifa second test results in failure of one or more sites, then the City may seek remedies in accordance with Sections 7.5 and 7.6 unless the circumstances of the failure are caused by conditions which are beyond TCI's control as determined, acknowledged and verified by the City. If deemed necessary, the City may wish to review the cable system's performance. During such evaluation session, TCI shall fully cooperate with the City and shall provide without cost such reasonable information and documents as the City may request to perform evaluations. 4.6 If the City has concerns because of reoccurring problems with TCI's cable system it may retain an independent consultant to conduct an analysis of the cable system and its performance and submit a report of such analysis to the City. The City shall take into consideration any efforts taken to correct such deficiencies. The report prepared by the consultant in response to the City's request for a system evaluation shall include 1. A description of the technical problem in cable system performance which precipitated the special tests; 2. What cable system components were tested; 3. The equipment used and procedures employed in testing; 4. The method, if any, by which specific performance problems may be resolved; 5. Any other information pertinent to said tests and analyses which may be required by the City. If the tests indicate that the system is not in compliance with FCC standards or the requirements of the Franchise, TCI shall reimburse the City for all costs involved in conducting such tests, including consultant fees or other expenses. INTERCONNECTION TCI shall continue all PEG Access interconnections in effect on the effective date of this Franchise, provided that one or more Interconnections may be discontinued if it is jointly determined that said discontinuation is in the best interest of the City and TCI. Page 24 TCI CABLE FRANCmSE DgAFr, June 23, 1997 Bo Co Do Fo TCI shall interconnect its PEG Access Channels in the future with such additional contiguous cable systems, as may be ordered by the City following an ascertainment of community needs and interests and a public hearing. Interconnection of systems may be accomplished by direct cable connection, microwave link, or other technically feasible method. Upon receiving request of the City to interconnect, ifTCI has not already done so, TCI shall immediately initiate negotiations with other affected system(s), and shall report to the City the results of such negotiations no later than sixty (60) days after such initiation. Upon a determination by the City that an interconnection is technically and economically feasible, considering all the circumstances, the City may order TCI to perform the interconnection, and TCI shall interconnect the systems within sixty (60) days following the order, subject to agreement by the interconnecting system regarding the equitable sharing of intercormection costs. In the case of any dispute regarding such equitable sharing of costs, the City shall make a final determination; provided that if the interconnecting system agrees to bear 50% or more of the cost, equitable sharing shall be regarded as accomplished. Upon request by the City, TCI shall interconnect the Institutional Network with any City-owned communications network, and any cable system or publicly owned institutional networks serving similar public purposes in adjacent jurisdictions. In cases where the I-Net interconnection involves the cooperation of another cable company, the requirement for interconnection shall be subject to the same conditions as for PEG interconnection as described in (B) above. At a minimum, each Interconnection shall provide sufficient bandwidth to fully accommodate, at a high level of technical quality, the transmission of such volume of bi-directional voice, video and data signals as may be designated necessary by the City for the carriage of PEG and Institutional Network signals. TCI shall ensure that all interconnections on its own property are securely housed and maintained, and ensure compliance with the Federal Communications Commission (FCC) Rules and Regulations, Part 76, Subpart K (Technical Standards). With respect to installing the capacity required under this Section, the City understands that interconnection requires cooperation from other cable system operators as to financial, engineering, design, and technical operation issues. Therefore the City shall make every reasonable effort to assist TCI in achieving the cooperation of interconnecting cable system operators necessary to establish the Interconnections, and TCI's interconnection obligations hereunder shall be subject to such cooperation being obtained. The cost to TCI of interconnecting its cable system with any other system pursuant to the requirements of this Franchise, solely to meet the requirements of this Franchise and not for purposes of TCI's own may be regarded as external cost, passed through to subscribers, and itemized on subscriber bills. In cases where TCI performs an interconnection for any other reason, without being specifically requested to do so in 7 Page 25 TCI CABLE FRANCI~SE DRAFT, June 23, 1997 writing by the City, the cost of the interconnection shall not be passed through to subscribers as external costs, nor itemized as such on subscriber bills. 4.7 VIRTUAL HEADENI~ In the event that the Cable System headend is located outside the City at any time during the term of the Franchise, then during such period, TCI shall make all System design and operational provisions necessary to ensure that: A. The technical standards of the FCC and this Franchise shall continue to be met; B. PEG access programming can readily be cablecast downstream. 5. SECTION 5 - PROGRAMMING AND SERVICES 5.1 CATEGORIES OF PROGRAMMING TCI shall provide broad categories of video programming substantially equal to or an improvement upon what is provided at the time the Franchise commence~ until the system upgrade required by this Franchise is completed. Upon completion of the system upgrade required in this Franchise, TCI shall provide video programming services in at least the following broad general categories: News & Information; B. Sports; C. General entertainment; D. Arts, culture, performing arts; E. Children/family; F. Foreign language/ethnic programming; G. Public, educational and governmental access programming; H. Movies; and I. Religious programming. 5.2 CHANGES IN VIDEO PROGRAMMING Following System channel capacity upgrade, no category of services as identified above may be deleted by TCI without City approval, which approval shall not be unreasonably withheld. TCI shall provide written notice to the City and to subscribers of any proposed deletions, additions or rearrangements of individual programming services, both before and after the System upgrade, at least thirty (30) days in advance, provided the giving of such notice is reasonably possible under the circumstances. If thirty (30) days notice is not ~ ~ Page26 TCI C~L~ F~cms~ DRy'r, June 23, 1997 5.3 5.4 5.5 e reasonably possible, TCI having made a good faith effort to comply, then TCI shall give notice as soon as is reasonably possible. The City reserves the fight both before and at~er system upgrade to regulate to the fullest extent permitted by law to ensure maintenance of the mix, level, and quality of service. BASIS FOR PROG~G DECISIONS TCI shall make available to the City upon request local documents and records pertaining to the basis for programming decisions, including, but not limited to, all customer surveys an survey results, individual requests, inquiries and complaints regarding specific programs and types of programming. An explanation of local programming policies guiding TCI's programming decisions shall be provided upon request as a pan of each year's annual report, and TCI shall give the City to opportunity to make suggestions regarding future broad categories of programming. OBSCENITY Subject to applicable federal law, TCI shall not transmit over the cable system programming which is obscene or otherwise unprotected by the Constitution of the United States, provided, however, TCI shall in no way be responsible for programming over which it has no editorial control, including public, educational and governmental access programming. PARITY OF SERVICE AND RATES Upon delivery of the channel capacity upgrade City subscribers will enjoy substantially the same level of service as Kitsap County subscribers including but not limited to tier options, channel and programming offerings and comparable rates and pricing packages. SECTION 6 - PUBLIC, EDUCATIONAL AND GOVERNMENT USE OF SYSTEM 6.1 PEG ACCESS A. Designated PEG Access Providers 1. The City may designate PEG Access Providers, including itself, to control and manage the use of all Access Facilities under this Franchise, including, without limitation, the operation of Access Channels. To the extent of such designation by the City, as between any Designated Access Provider and TCI, the Designated Access Provider shall have sole and exclusive responsibility for operating and managing such Access Facilities. 2. TCI shall cooperate with Designated PEG Access providers in the use of the PEG Access Facilities for the provision of PEG Access. 3. Except as provided in this Franchise, the City shall allocate Access Resources to Designated Access Provider(s) only. B. Channel Capacity and Placement f.-~,~a,,.doc Page 27 TCI CABLE FP, ANCmSE DRAFt, June 23, 1997 Existing Channel. The channel designated for PEG Access at the time of the passage of this Franchise Ordinance by the City Council (Channel 12) shall remain a PEG Access Channel throughout the term of this Franchise, subject to the requirements of Secs. 614(a) and 615(g) of the Cable Act and the FCC regarding a cable operator's obligation to carry the signals of local television stations on the Cable System. Should the PEG Access Channel be required to be moved in virtue of these Cable Act provisions, then TCI shall make its best efforts to locate the PEG Access Channel within the range of channels 1-13, subject also to the Cable Act requirements. New Channel. Upon request of the City one channel, in addition to the existing PEG channel, shall be furnished by TCI for PEG purposes within sixty (60) days following the effective date of this Franchise, upon request by the City. The City, at its sole discretion, may elect to combine Public, Educational and local Government programming on one or more access channels. Additional Channels. One additional channel over and above the two channels described in (1) and (2) above shall be made available each time that any channel is used for PEG Access purposes with first run programming during fifty percent (50%) of the hours between 10:00 a.m. and 10:00 p.m., during any consecutive ten (10) week period. Based upon this criterion TCI shall, within six (6) months following a request by the City, provide another designated access channel for the City's use. For the purposes of this section "first run programming" shall mean non-character generated video programming in its initial cablecast on PEG Access channels or in any of its first, second or third repeat cablecasts per week, except that after 20 repeat cablecasts, a program shall not be regarded as first run programming. C. Financial Support for PEG Access Pass-Through Support for PEG Access and the I-Net. In view of the fact that the City's plans for the use of PEG Access Channels and the Institutional Network are expected to change to meet conditions during the life of the Franchise, but the requkement of funds for these uses is certain, TCI shall provide to the City for PEG Access and 1-Net support an amount equal to twenty-one cents ($ .21) per Subscriber per month, adjusted annually at the City's request by the percentage of change in the revised Consumer Price Index (CPI) for all urban consumers as published by the U.S. Dept of Labor for U.S. City Average for the most current period, during the entke term of the Franchise, and during any extensions to the Franchise granted by the City. TCI shall be permitted to treat this contribution as an "external cost" as such term is used in 47 CFR Sec. 76.922 on the date of this Franchise, to pass such cost through to Subscribers, and to separately identify the contribution as a separate item on Subscribers' bills in accordance with 47 C.F.R Sec. 76.985. The contribution shall be paid to the City on a monthly basis along with franchise fees. Page 28 TCI C~L~ F~ci-nsE DRAFT, June 23, 1997 Additional PEG Access Funds. In addition to the capital support contribution described above, TCI shall pay to the City $20,808 per year as a contribution in support of PEG facilities, equipment and programming. This support shall be paid in monthly installments of $1734.00, shall not be regarded as a part of franchise fees, nor taken as an offset against franchise fees, and will discontinue with the expiration of this Franchise and any extensions of the Franchise granted by the City. The City and TCI agree that this support shall not be passed though to Subscribers, nor considered as an embedded cost during franchise renewal. Additional PEG Support. In the spirit of cooperation and partnership TCI shall continue to support Public Educational and Government (PEG) activities by providing such services as informational bill stuffers regarding access. TCI shall not be required to include PEG Access materials in its subscriber bills more than twice annually, nor be required to pay for any extra postage which may be required as a result of the inclusion of PEG Access materials. TCI has supported these services throughout the term of the prior franchise, and their cost shall not be passed through to subscribers as a new external franchise cost. Nor shah the cost of these services be regarded as part of franchise fees, nor taken as an offset against franchise fees. PEG Access Studio Location. TCI shall maintain the PEG Access studio at 1225 Sylvan Way, Bremertort, Washington 98310 during the term of the Franchise; or provide equivalent facilities and means to ensure convenient local PEG Access use of the System at least at the highest level provided prior to the effective date of this Franchise. IfTCI chooses to move the access facilities to a new location for TCI purposes only, then TCI will bear the cost of such a move. TCI shall be required to relocate the access studio as ordered by the City, provided the City has secured the participation of Kitsap County in conducting an ascertainment of community needs and interest and public hearings, and an agreement that any costs associated with the relocation shall be passed through equally to aH cable subscribers in both franchise areas. o City Hall Council Chambers Upgrade. Upon signing this franchise TCI will provide funding for upgraded equipment for City Council Chambers and studio and other purposes not to exceed $55,000. TCI shall recover this expense by retaining the twenty-one cents ($.21) per subscriber per month pass-through. Hardwired Origination Points As part of the upgrade construction of its cable system, TCI shah provide actual operating bandwidth sufficient to enable character-generated, prerecorded and live video cablecasts on at least one programming channel from all Hardwired Programming origination Points as described in Appendix A, to enable the distribution of PEG Access programming from each Hardwired Origination Point to aH Subscribers on the Access Channels of the Cable System. TCI shaH provide the activated capacity to simultaneously transmit at a minimum the video signals for all .~ / Page 29 TCI CABLE FRANCrnSE DRAFT, June 23, 1997 PEG Access Channels being actively made available for PEG Access use, from the Access Studio located at 1225 Sylvan Way, Bremerton, Washington 98310, or at such alternative location as may be designated by the City, to the system headend for distribution on the Access Channels. 6.2 ge Access Interconnections TCI shall make every effort to implement any interconnection with other systems for PEG purposes in such a way that PEG programming is carried on the same channel positions on the interconnected systems, with the Government Access channel carried within the group of channels 1-13, subject to the limitations specified in Section 6.1(B)(1). Ne Technical Quality TCI shall maintain all Access channels and connections to hardware origination points and Interconnections of Access Channels at minimally the same level of technical quality and reliability as the level maintained for the rest of the system. TCI shall not cause any non-access programming to override Access Programming on any Access Channel, except by verbal or written permission from the Access Provider. In the event TCI makes any change in the Cable System and related equipment and Facilities or in TCI's signal delivery technology, which directly or indirectly substantially affects the data or video signal quality or transmission of Access Programming TCI shall at its own expense take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment, to ensure that the capabilities of Access Providers or Access Programmers are not diminished or adversely affected by such change. INSTITUTIONAL NETWORK A. Requirement for Constructing the Network TCI shall, in accordance with specific agreements and plans to be developed by the City and TCI, construct a Institutional Network (I-Net) to link public facilities designated by the City with bi-directional video, data and audio signals. The I-Net shall be primarily for the purpose of non-commercial public agency closed-circuit use, for institutional communications not normally transmitted via the subscriber network system. B. Parameters of I-Net Agreements and Use The I-Net shall be constructed in accordance with agreements and plans developed by the City and TCI. The following parameters shall apply to such agreements, unless mutually agreed otherwise by the City and TCI: 1. Any charges by TCI to the City for the construction of the I-Net or I-Net Interconnections shall not exceed the incremental cost to TCI, i.e., the actual cost .e..u~O~ao~ ~ ~'~- Page30 TCI CABLE FRANCmSE DRAFT, June 23, 1997 of constructing the I-Net over and above the cost of constructing TCI's Cable System for its own use. There shall be no charge by TCI to the City or to other public users for the use of the I-Net. o TCI shall cooperate with the City to ensure the most cost-effective construction of the 1-Net. To reach 1-Net locations where communications needs do not justify separate I-Net plant construction, the I-Net may include the use of upstream and downstream capacity on the residential system as such capacity exists or is developed and is not in actual use by TCI. In order to ensure that the City may take full advantage of the cost savings to be realized fxom constructing the I-Net in conjunction with any TCI plant construction, the City shall provide TCI with a list of 1-Net locations, and no less than 90 days prior to any plant construction near the listed locations, TCI shall notify the City of the planned construction, and enter into discussions with the City to determine what 1-Net installations, if any, may be made a part of the construction. IfTCI fails to give the City such 90 day notice and enter into such discussions, and the City later elects to have TCI construct I- Net connections to locations that could have been served in conjunction with TCI construction carried out for its own purposes, then TCI shall perform the I-Net construction at a cost to the City which does not exceed what would have been the incremental cost of the I-Net construction had it been done along with TCI's construction for its own purposes. TCI shall, at the request of the City, interconnect the I-Net to its residential subscriber system, in order that programming which is transmitted via the I-Net to the System headend may be routed onto PEG Access channels. Management and control of I-Net transmissions shall be the responsibility of the City or its designee up to a point of demarcation to be jointly determined by the City and TCI at a later date. TCI shall make available technical assistance, beyond the point of demarcation, to ensure the effective and reliable operation of the I- Net. o Upon request by the City TCI shall construct the I-Net as shown in Appendix C or as otherwise agreed upon by the parties. Once directed, TCI will complete each phase within twelve (12) months of the request. All preliminary, pertinent or cost saving measures regarding the development of the 1-Net will be addressed during the development and construction of the upgrade with the City. SECTION 7 - REGULATORY PROVISIONS INTENT The City shall have the right to administer and regulate activities under the Franchise up to the full extent permitted by applicable federal, state or local law. Page 31 TCI CABLE FRA~CmS£ DRAm', June 23, 1997 7.2 7.3 7.4 DELEGATION OF AUTHORITY TO REGULATE The City reserves the right to delegate its regulatory authority wholly or in part to the federal or State government, or to boards, commissions or other agents oftbe City. AREAS OF ADMINISTRATIVE AUTHORITY In addition to reserving its fight to exercise all regulatory authority concerning the Franchise, the City shall have the right to exercise administrative authority in areas including but not limited to the following: A. Administering and enforcing the provisions of this Franchise, including the adoption of administrative roles and regulations to carry out this responsibility. B. Coordination of the operation and development of Public, Educational and Governmental Access channels, and Institutional Network capacity. C. Planning and coordinating the development of all cable services within the City. D. Disbursing and utilizing Franchise Fee revenues paid to the City. E. Administering the regulation of rates, to the extent permitted by law. TCI shall cooperate fully in facilitating the City's discharge of its administrative authority. REGULATION OF RATES AND CHARGES A. Right to Regulate The City expressly reserves the right to regulate TCI's rates and charges in accordance with applicable law as such law may provide during the term of the Franchise. B. Notice of Change in Rates and Charges Throughout the term of the Franchise, subject to applicable law, TCI shall give the City and all subscribers within the City of Bremerton at least thirty 00) days notice of any intended modifications or additions to subscriber rates or charges. Nothing in this Subsection shall be construed to prohibit the reduction or waiving of rates or charges in conjunction with promotional campaigns for the purpose of attracting subscribers or users. C. Rate Discrimination Prohibited Within any category of subscribers, TCI shall not discriminate among subscribers with regard to rates and charges made for any service based on considerations of race, color, creed, sex, marital or economic status, national origin, sexual preference, or neighborhood of residence, except as otherwise provided herein or in accordance with federal, state and local laws; and for purposes of setting rates and charges, no Page 32 TCI CABLE FR~CmS~. DRAFT, June 23, 1997 7.5 categorization of subscribers shall be made by TCI on the basis of those considerations. Nevertheless, TCI shall be permitted to establish discounted rates and charges for providing cable service to low-income disabled or Iow-income elderly subscribers. At any time that the rate for Basic Service is $12 per month or more, TCI shah offer a discount of thirty percent (30%) from the normal charge for Basic Service and installation to those individuals age sixty-two (62) or older or disabled who are the legal owner or lessee/tenant of their residence. To qualify for the low-income senior citizen or low-income disabled citizen rate, the individual shall meet the criteria established by RCW 74.38.070. In order to remain eligible for the credit, the applicant shah be required to reapply each year with the City of Bremerton. REM~I~IES FOR Iq~RANCHISE VIOLATIONS In addition to the remedies specified in Section 4.3 of this Franchise, the City, subject to the provisions of Sections 7.6 and 2.9, has the right to assert the following remedies in the event TCI violates any provision of this Franchise: Drawing upon or foreclosing ah or any part of any security provided under this Franchise, including without limitation the Construction Bond or Performance Bond provided for under Sections 11.3 and 11.4; provided, however, such drawing or foreclosure shah be only in such a manner and in such amount as the City reasonably determines is necessary to remedy the default. Should the City take this action, TCI shah be responsible for ah direct and actual costs related to such action, including but not limited to, legal, consulting and administrative costs; B. Commence an action at law for monetary damages or seek other equitable relief, C. In the case of a substantial default of a material provision of this Franchise, declare the Franchise to be revoked; Subject to applicable law and regulation, require TCI to correct or otherwise remedy the violation prior to considering the approval of any proposed rate increase if rate regulation is authorized by law and is in effect; E. Seek specific performance of any provision, which reasonably lends itseLf to such remedy, as an alternative to damages. In determining which remedy or remedies for TCI's violation are appropriate, the City shah take into consideration the nature and extent of the violation, the remedy needed to prevent such violations in the future, whether TCI has a history of previous violations of the same or similar kind, and such other considerations as are appropriate under the circumstances. 7.6 PROCEDURE FOR REMEDYING FRANCHISE VIOLATIONS f..~-,~v~doc 55 Page33 TCI CABLE FRAnCHiSE DP. AFt, June 23, 1997 Notice of Violation. In the event that the City believes that TCI has not complied with the terms of this Franchise, the City shall notify TCI in writing, by certified mail, of the exact nature of the alleged noncompliance. TCI's Right to Cure or Respond. TCI shall have thirty (30) days fi.om the receipt of notice described above to (a) respond to the City contesting the assertion of noncompliance, or Co) to cure such default or, in the event that by the nature of the default such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date they will be completed. Public Hearing. In the event that TCI fails to respond to the notice described herein or cure the default pursuant to the procedures set forth above, the City shall schedule a public hearing to investigate the default. The City shall give TCI twenty (20) calendar days notice of the time and place of the hearing and provide TCI with an oppommity to be heard. 7.7 7.8 ENFORCEMENT In the event the City, after such hearing, determines ihat TCI is in default of any provision of this Franchise, the City may impose any of the remedies set out in Section 7.5 or Section 2.9 herein. Monetary penalties may be assessed retroactive to the date that notification was provided to TCI in such cases where TCI has been non-responsive in correcting the default or in the case of flagrant violations. FAILURE TO ENFORCE TCI shall not be relieved of any of its obligations to comply promptly with any provision of this Franchise by reason of any failure of the City to enforce prompt compliance, and the City's failure to enforce shall not constitute a waiver of rights or acquiescence in TCI's conduct. 7.9 7.10 FORCE MAJEURE If by reason of force majeure TCI is unable in whole or in part to carry out its obligations hereunder, TCI shall not be deemed in violation or default with respect to that part of such inability which is due to force majeure, during the continuance of such inability due to force majeure. The term "force majeure" as used herein shall mean the following: acts of Nature; 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 Washington, or in 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; partial or entire failure of utilities; and similar occurrences outside the control of TCI. TCI agrees, however, to give its best efforts to remedy as soon as possible, under the circumstances, the cause or causes preventing TCI fi.om can34ng out its responsibilities and duties under this fi.anchise agreement. ALTERNATIVE REMEDIES f: ~tv~a,t doc Page 34 TCI CABLE FP~a~CH~SE DRAFr, June 23, 1997 7.11 e 8.1 No provision of this Franchise shall be deemed to bar the right of the City to seek or obtain judicial relief from a violation of any provision of the Franchise or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this Franchise nor the exercise thereof shall be deemed to bar or otherwise limit the fight of the City to recover monetary damages for such violation by TCI, or to seek and obtain judicial enforcement of TCI's obligations by means of specific performance, injunctive relief or mandate, or any other judicial remedy at law or in equity. COlVlPLIANCE ~ THE LAW TCI shall comply with all federal and state laws and regulations, including regulations of any administrative agency thereof, as well as all City codes, ordinances, resolutions, rules and regulations of general applicability and other legitimate applications of the City's police power, heretofore or herea~er adopted or established during the entire term of the Franchise. Nothing in this Franchise shall limit, nor expand the City's right of eminent domain under state law. Nothing in this Franchise shall be deemed to waive the requirements of any lawful code or resolution of the City regarding permits, fees to be paid or manner of construction. SECTION 8 - REPORTING REQUIREMENTS Unless otherwise set forth in the franchise agreement, the City may specify the form and details of all reports, with TCI given an opportunity to comment in advance upon such forms and details. The City may change the filing dates for reports upon reasonable request of TCI. MOHTItLY AND QUARTERLY REPORTS Ao Bo Monthly Records and Reports. TCI shall maintain monthly records showing the number of service calls received by type, the percentage of service calls compared to the subscriber base by type of complaint, the number of outages, the number of planned outages, and the approximate total duration of these outages. These reports shall be in a form reasonably required by the City. The City may from time to time make such reasonable amendments to the forms as are required to ensure that all issues are reported clearly and accurately. Within 30 days a~er the end of each month, TCI shall submit a written report to the City, which shall contain a listing of all categories of Gross Revenues earned and gross receipts collected by TCI or any cable operator, derived from the operation of the Cable System franchised hereunder for the previous month, in sufficient detail and with sufficient explanation to enable the City to understand the report and to verify the accuracy of Franchise Fee payments. Quarterly Reports. In order that the City may be informed of TCI's success in achieving satisfactory customer relations in its telephone answering Functions, TCI shall, upon request by the City, and routinely no less than quarterly, provide the City with a summary that will provide, at a minimum, the following 7 Page 35 TCI CABLE FP,~qCHIS£ D~a~"r, Juno 23, 1997 8.2 1. Number of calls received per day; 2. Time taken to answer; 3. Average talk time; 4. Number of calls abandoned by the caller; 5. Average hold time; 6. Percentage of time all lines busy; 7. An explanation of any abnormalities. 8. Subscriber levels by categories. This data will be compared to minimum standards of the FCC Customer Service obligations, Part 76.309, Subpart II or as amended incorporated herein by reference. Calls for service generated during period of system outages mused by an emergency affecting more than twenty-five (25) customers may be excluded fi.om the service response calculations. The City shall have the sole determination as to what constitutes a system failure due to emergency, (subject to the provisions of FCC Customer Service Standards regarding the nature of normal operating conditions), and as to which calls shall be excluded from the service level calculations. ~hrNUAL REPORT No later than one hundred twenty (120) days following the end of TCI's fiscal year each year, TCI shall present a written report to the City which shall include: Bo Audited financial reports (or if audited reports are unavailable then unaudited and certified reports) for a) TCI, b) TCI West, Inc., and c)Tele-Communications, Inc. for the previous fiscal year; certified by an officer of TCI, which shall include statements of Gross Revenues fi.om all sources, gross revenues fi.om each category of service, and upon request an income statement, statement of cash flow, balance sheet, and the cost of any capital construction by component category (e.g., headend, plant, studios, office, etc.). In the event any audited financial report has not been published by the date due under this section, then the audited financial report shall be deemed presented on time if presented within 30 days after publication. All financial reports required under this section shall be presented to the City accompanied by such notes and explanations as are required to fully understand the reports. Such notes and explanations shall include, but not be limited to, an explanation of any and all deductions made fi.om Gross Revenues in order to arrive at Gross Receipts for the calculation of Franchise Fees to be paid to the City. A summary of the previous year's activities for the Franchise Area, including but not limited to, the total number of subscribers for each category of service, the number of hookups and disconnects, the number of homes passed, miles of overhead and underground coaxial and fiber optic cable plant, other system facilities and equipment constructed, any services added or dropped, and any technological changes occurring in the system. Page 36 TCI CABLE FRANCHISE DRAFF, June 23, 1997 8.3 Co A sununary of complaints received, with a sununm3, of how the complaints have been resolved and how long the resolution took, provided that nothing in this subsection shall require TCI to provide the City with subscriber information in violation of Section 631 of the Cable Act. D. Plans for future construction, technology changes, and services. E. A list of all officers, members of the Board of Directors, and all parmers or stockholders holding ten percent (10%) or more of TCI and each parent company. Fo A copy of all of TCI's written customer service rules and regulations, a statement of current billing practices and a sample copy of the bill format, a copy of the current subscriber service contract, and any technical requirements applicable to subscribers and users of the Cable System. MONITORING AND COMPLIANCE REPORTS Upon request, TC! shall provide a written report of any and all FCC technical performance tests of the residential network required in FCC Rules and Regulations as now or hereinafter constituted. 8.4 8.5 8.6 ADDITIONAL REPORTS TCI shall prepare and furnish to the City or its designee, upon request, at the times and in the form prescribed by the City or such other regulatory entity, such additional reports with respect to TCI's operation, affairs, transactions, or property, as may be reasonably necessary and appropriate to ensure compliance with the material provisions of this Franchise, or to permit the performance of any of the rights, functions or duties of the City or such other regulatory entity in connection with the Franchise. COMMUNICATIONS WITH REGULATORY AGENCIES Upon ten (10) business days written request by the City, a summary, or, if the City so requests, actual copies of all petitions, applications, communications and reports submitted by TCI or any affiliate, to the FCC or any other federal or state regulatory commission or agency having jurisdiction with respect to any matter affecting construction or operation of the Cable system in the City, and any response therefrom, shall be submitted to the City for review, providing that such petitions, applications, communications, reports and responses are required by the City to ensure compliance with the terms herein. In addition, TCI and its affiliates shall within ten (10) business days of any communication to or from any judicial or regulatory agency regarding any alleged or actual violation of a law, regulation or other requirement relating to the system, provide the City a copy of the communication, whether specifically requested by the City to do so or not. PRESERVATION OF CONFIDENTIAL INFORMATION The City shall protect information designated as confidential by TCI to the maximum extent permissible under RCW chapter 42. 17. Page 37 TCI CABL~ FRANC}USE DRAFT, June 23, 1997 e 9.2 9.3 9.4 9.5 9.6 SECTION 9 - CUSTOMER SERVICE POLICIES RESPONSE TO CUSTOMERS AND COOPERATION WITH CITY TCI shall promptly respond to all requests for service, repair, installation and information from subscribers. TCI acknowledges the City's interest in the prompt resolution of all cable complaints and shall work in close cooperation with the City to resolve complaints. COMPLIANCE WITH FCC STANDARDS TCI shall at all times be in compliance with FCC Customer Service obligations 76.309, Subpart 1I, or as may be amended. The City, however, reserves the right to impose more stringent requirements if it deems existing standards to be inadequate to deal with actual customer service problems, and if its adoption of such requirements includes a public hearing in which TCI among others is permitted to be heard. FAILURE TO IMPROVE CUSTOMER SERVICE The City or its designee shall review telephone response and customer service information with TCI. It will be assumed that improvements will be made by TCI in the areas of non- compliance from the last reporting period. Failure to do so may result in penalties being imposed. An unsatisfactory record will also result in the hearings being made part of an exhibit under Section 626(c)(1)(A) and (B) of The Act alleging that such practices have failed to conform with future refranchising requirements as stated therein. In addition TCI's Corporate office, if appropriate, shall be advised of the City's findings. REFUNDS FOR OUTAGES Upon request, full credit will be given to a subscriber for the period of an outage if the subscriber was without service for a period exceeding twenty-four (24) hours. TERMINATION OF SUBSCRIBER SERVICE Upon termination of any subscriber, TCI shall promptly remove all of its facilities and equipment, excepting drop cable and internal wiring, from the premises of such subscriber upon subscriber's request, except as provided in subsection (B), below. Charges Upon Failure to Recover Equipment. Upon termination of services, should TCI not promptly collect its equipment from the premises of the subscriber within five (5) working days, the subscriber shall not be charged for continued services, nor for failure to return any equipment. Bo Equipment Returns. Should TCI require the subscriber to return the equipment, TCI shall establish convenient hours including evening and weekend hours, for remm of the equipment, and the subscriber shall have a reasonable length of time in which to return the equipment. The subscriber shall be advised of the date by which the equipment must be returned before a charge may be imposed for failure to return equipment. DEFINITION OF "COMPLAINT" Page 38 TCI CABLE FRA~C~SE DP. AFT, June 23, 1997 9.7 10. 10.1 For the purposes of Sections 8.2 and 9, with the exception of Subsection 9.7, "complaint" shall mean any communication to the City by a subscriber or person who has requested and has a fight to be a subscriber on the cable system, expressing dissatisfaction with any service or other performance or lack thereof by TCI under the obligations of this Franchise; provided that the communication shall be regarded as a complaint only if the person expressing the dissatisfaction has already expressed it to TCI, and TCI has failed to remedy the cause of the dissatisfaction within a reasonable period of time and in a manner consistent with the requirements of this Franchise. CUSTOMER SERVICE AGREEMENT AND MANUAL TCI shall provide to subscribers a comprehensive service agreement and a customer manual for use in establishing subscriber service. This material shall, at a minimum, contain the following: A. TCI's procedure for investigation and resolution of subscriber service complaints B. Services to be provided and rates for such services. C. Billing procedures. D. Service termination procedure. E. Change in service notifications. F. Liability specifications. G. Converter/subscriber terminal equipment policy. H. Breach of Agreement specification. I. The name, address, and phone number of the person identified by the City as responsible for handling cable questions and complaints for the City. This information shall be prominently displayed in the manual, and TCI shall submit the information to the City for review and approval as to its content and placement in the manual prior to publication. Following initial approval by the City no subsequent approval shall be required unless changes in content or replacement of material are made. A copy of the customer service manual shall be provided to each subscriber at the time of initial and any re-connection hookup, and thereat~er no more than thirty (30) days following any update of the manual reflecting material policy changes, and at any time the manual is requested by the subscriber. SECTION 10 - LINE EXTENSION POLICY STANDARD INSTALLATION TCI shall make service available, within sixty (60) days and at standard installation rates and standard service rates, for every potential subscriber within the Franchise Area existing at the time of the acceptance of this Franchise or in the future, subject to the provisions of Section 10.3: Whose dwelling is one of a minimum of 20 dwelling units per linear aerial cable mile (30 units per underground mile), or 5 dwelling units per 1/4 aerial mile (8 units per underground ¼ mile), from the nearest existing cable plant; or Page 39 TCI CABL~ FP.A~CmSE DRAFT, June 23, 1997 10.2 10.3 Bo Whose dwelling is situated such that cable constructed fi.om the nearest existing cable plant would pass an average of 20 homes per linear aerial mile (30 homes per underground mile); or C. Where connection to the potential subscriber's dwelling fi.om cable plant constructed as required under tNs Franchise requires no more than a 125-foot drop cable. ISOLATED AREAS Potential subscribers requesting service but requiting service extended beyond the standard installation and service provisions under Sectionl0.1 shall be provided the first 125 feet of cable at the prevailing installation rate. Cable and service required beyond the initial 125 feet will be provided under the following circumstances: Where the potential subscriber, or any group including the potential subscriber, pays in advance the direct and incremental cost of extending the line and making the installation; or Bo Where the potential subscriber and TCI reach an independent agreement for the provision of service, so long as the agreement does not involve any violation of the requirements and standards of this Franchise. ANNEX~X} AREAS In the event that the City annexes any area, TCI shall make service available under the terms of this Franchise within six (6) months following annexation. However, if the newly annexed area is being provided cable service by an operator other than TCI, nothing in this Franchise shall obligate TCI to provide service to that area so long as the other operator provides facilities and services comparable to the facilities and services provided for under this franchise. 11. 11.1 SECTION 11 - COMPENSATION AND FINANCIAL PROVISIONS FRANCHISE FEES During the term of the Franchise, unless specifically requested to do so by the City, TCI shall not pay a Franchise Fee to the City. However, within 30 days following a written request by thc City to do so, TCI shall, during thc term of the Franchise, pay to the City a Franchise fee consisting ora percentage of TCI's Gross Receipts, such percentage to be specified by the City, not to exceed five percent (5%) of Gross Receipts. If any law, regulation or valid rule alters the 5% franchise fee ce'ding imposed by the Cable ACt, then the City shall have the right to alter the Franchise Fee percentage to be paid by TCI, up to the maximum allowed by law. Nothing in this Section shall alter or affect the right of the City to impose utility taxes, business and occupation taxes, or similar fees, upon TCI, however, the aggregate total of such taxes and fees when taken together with the fi.anchise fee shall not exceed seven (7) percent. Franchise Fees shall be paid monthly to the City or to such bank account of the City, as may be designated by the City Treasurer, to be received on or before the thirtieth TCI CABLE FRAlqCmSE DRAFt, June 23, 1997 11.2 (30th) day of the following month. Not later than the date of each payment, TCI shall file with the City a written statement signed by TCI Officer or authorized representative, which identifies in detail on forms furnished by the City the sources and mounts of each category of Gross Revenues earned and Gross Receipts collected by TCI during the month for which payment is made, following the provisions of Section 8.1. No acceptance of any payment shall be construed as an accord that the mount paid is, in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim which the City may have for further or additional sums payable under the provisions of this Section. Any Franchise Fees owing pursuant to this Franchise which remain unpaid more than 10 days after the dates specified herein shall be delinquent and shall thereafter accrue interest at twelve (12) percent per annum or two (2) percent above prime lending rate as quoted by major Seattle banks, whichever is greater. Co The period of limitation for recovery of any Franchise Fee payable hereunder shall be six years from the date on which payment by TCI is due. Unless within six years from and after such payment due date the City makes written request for an audit of TCrs franchise fee payments, and upon a finding of underpayment of fees requests payment offianchise fees due, such recovery shall be barred and the Franchising Authority shall be stopped from asserting any claims whatsoever against TCI relating to any alleged deficiencies. The City or its authorized agent may at any time and at the City's own expense conduct an independent audit of the Gross Revenues of TCI in order to verify the accuracy of Franchise Fees paid to the City. TCI and each parent company of TCI and each affiliate shall cooperate fully in the conduct of such audit. In the event it is determined through such audit that TCI has underpaid Franchise Fees by one percent (1%) or more than was due the City, then TCI shall reimburse the City for the entire cost of the audit and any back Franchise Fees with interest accrued at twelve (12) percent per annum or two (2) percent above prime lending rate as quoted by major Seattle banks, whichever is greater, within 30 days of the completion and acceptance of the audit by the City. Ir'it is determined through such audit that TCI has overpaid Franchise Fees by one percent (1%) more than was due the City, then the City shall reimburse TCI for all Franchise Fees overpaid. OPEN BOOKS AND RECORDS TCI shall manage all of its operations in accordance with a policy of keeping all books and records related to the provision of Cable Service open and accessible to the City. The City shall have the right as necessary for effectively administering and enforcing this Franchise to inspect at any time during normal business hours upon reasonable notice, all books, records, electronic or optical files, maps, plans, financial statements, service complaint logs, performance test results, records required to be kept by TCI and any parent company and affiliate, pursuant to the rules and regulations of the FCC and other regulatory agencies, and other like materials of TCI and any parent company and affiliate which directly relate to the operation of the Cable System in the Franchise Area. Access to the Page 41 TCI CABLE F~CH~SE DP~-~r, Juno 23, 1997 11.3 11.4 11.5 aforementioned records shall not be denied by TCI to representatives of the City on the basis that said records contain "proprietary" information. However, to the extent allowed by Washington law, the City shall protect the trade secrets and other confidential information of TCI and any parent company. Ail books and records relating to TCI's activities under the Franchise shall, upon request, be made available in the City of Bremerton. TCI agrees to meet with a representative of the City upon request to review its methodology of record-keeping, financial reporting, computing franchise fee obligations, and other procedures the understanding of which the City deems necessary for understanding the meaning of reports and records. The City agrees to request access to only those books and records, in exercising its fights under this Section, which it deems reasonably necessary as part ora bona fide regulatory or enforcement effort related to the material provision of this Franchise for the enforcement and administration of this Franchise. CONSTRUCTION PF_,RFO~~ BONI) Before be~nning any construction related work in the City of Bremerton related to the system upgrade and/or rebuild of the current system, TCI shall furnish a construction bond to the City. The bond shall be issued by a surety company authorized to do business in the State of Washington, shall be reasonably acceptable to the City, and shall be in a sum of $100,000, or the full amount of the estimated cost of construction, whichever is greater. TCI shall pay all premiums and costs associated with maintaining the bond, and shall at a minimum keep the $100,000 bond in full force and effect at all times. FRANCHISE PERFORMANCE BOND Prior to the effective date of this Franchise, TCI shall furnish an irrevocable Performance Bond, issued by a surety company authorized to do business in the State of Washington in an amount of not less than $50,000, guaranteeing performance of all obligations under the Franchise, except the construction work related to the upgrading or rebuilding of the current system for which a separate bond is required. The franchise performance bond shall be in a form reasonably acceptable to the City and shall be maintained during the entire term of the Franchise, including any extensions, and thereafter until TCI or any successor or assign has liquidated all of its obligations arising form this Franchise. Neither the provisions of this Section nor any Performance Bond accepted by the City pursuant thereto, nor any damages or other amounts recovered by the City pursuant thereto, nor any damages or other amounts recovered by the City thereunder shall be construed to excuse faithful performance by TCI or to limit liability of TCI under this Franchise either to the full amount of the Performance Bond or otherwise, except as otherwise provided herein. RECOURSE AGAINST BONDS AND OTHER SECURITIES Page 42 TCI CABLE FRANCHISE DRAFT, Sun¢ 23, 1997 Bonds and other security may be utilized by the City for the purposes, including, but not limited to, reimbursement of the City by reason of TCI's failure to pay the City any sums due under the terms of this franchise, reimbursement of the City for reasonable costs borne by the City to correct franchise violations not corrected by TCI after due notice; and monetary remedies or damages assessed against TCI due to default or violations of the 11.6 Ao Recourse. In the event the Franchise has been declared revoked or terminated under the terms of this Franchise, and ifTCI fails, within thirty (30) days of mailing of the City's finding, to pay the City any franchise fee or tax, penalties, or monetary sanctions, or fails to perform any of the conditions of the franchise, the City may thereafter foreclose against the performance or construction bonds and/or withdraw fi.om any other security an amount sufficient to compensate the City's damages, with interest at the legal rate. Upon such foreclosure or withdrawal, the City shall notify TCI in writing, by First Class Mail, postage prepaid, of the amount and date thereof. Restoration. Within thirty (30) days after mailing notice to TCI that the City has foreclosed TCI's construction or performance bond or that any amount has been withdrawn by the City from the other security pursuant to subsection "A' above, TCI shall deposit such further bond or sum of money, or other security, as the City may require, sufficient to meet the requirements of this Franchise. Co Rights of the City. The rights reserved to the City with respect to any bond or security are in addition to all other rights of the City whether reserved by this Franchise or authorized by law, and no action, proceeding, or exercise of a right with respect to any bond or other security shall constitute an election or waiver of any rights or other remedies the City may have. INDEMNIFICATION BY TCI A. TCI shall, at its sole cost and expense, indemnify, defend, and hold harmless the City, its officials, boards, commissions, agents and employees against any and all damages, costs, expenses, losses, taxes, claims, suits, causes of action, proceedings, liabilities and judgments (collectively the "indemnified liabilities), arising out of the operation and construction of the cable system under this Franchise, including the use, generation, transportation, storage, treatment or disposal of any hazardous or dangerous substances, wastes, or materials; except that no such requirement shall apply where such indemnified liabilities are occasioned solely by the negligence, gross negligence, or intentional misconduct by the City or its officials, boards, commissions or employees while acting on behalf of the City. These indemnified liabilities shall include, but shall not be limited to, the cost of any required or necessary repair, cleanup, or detoxification, natural resource damage claims, damages or penalties arising out of copyright infringements, and damages arising out of any failure by TCI to secure consents from the owners, authorized distributors or licensees of programs to be delivered by TCI's Cable System whether or not any act or omission complained of is authorized, allowed, or prohibited by the Franchise. Indemnified expenses shall include, bu not be limited to, all out-of-pocket expenses, such as costs and attorneys', TCI CABtJ~ FRANCmS£ Dma, Fr, June 23, 1997 11.7 11.8 and accoumants' fees, and shall also include the reasonable value of any services rendered and separately billed by the Office of the City Attorney or any outside consultants employed by the City. Bo IfTCI fails to defend as required in Subsection (A) above, then TCI agrees to and shall pay all expenses incurred by the City, and if officers, agents, and employees, in defending itself with regard to all claims, damages, and penalties mentioned in subsection (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 City. TCI INSURANCE TCI shall maintain, throughout the term of the Franchise, a policy of comprehensive commercial liability or comprehensive general liability insurance and a policy of automobile liability, issued by an insurance carrier authority to conduct the business of insurance in the State of Washington by the Washington State Insurance Commissioner. Said policy or policies shall pay on behalf of and defend TCI and the City, its officials, boards, commissions, agents or employees fi.om any and all claims by any person whatsoever (including the costs, defense costs, attorneys' fees and interest arising therefrom) on account of personal injury, bodily injury or death of a person or persons or damages to property occasioned by the operations under this Franchise,. or alleged to have been so incurred or so caused, with a minimum combined single limit of not less than $1,000,000 per occurrence and a minimum annual aggregate limit of $5,000,000. A certificate of insurance evidencing this coverage and identifying the City as an additional insured shall be provided to the City's Risk Manager. The certificate shall also provide for 30 days advance written notice to the City, by the insurer, prior to any coverage modification or cancellation. The City reserves the fight to revise the policy requirements set forth above, during the term of the franchise, as reasonably necessary to provide adequate coverage. TAXES Nothing in this Franchise shall limit TCI's obligation to pay applicable local, State, or Federal taxes. 11.9 ICRAN~SING COSTS TCI shall pay to the City upon acceptance of this franchise the full amoum of the City's out-of-pocket costs associated with the franchising process. Costs shall include such items as expenses, and the costs of publishing notices and ordinances, etc. Such paymem is not to be considered in lieu offi'anchise fee or tax payments. Payment is due within thirty (30) days of receipt of appropriate invoice from the City. TCI CABLE FRANCHISE DRAYr, June 23, 1997 12. 12.1 SECTION 12 - MISCELLANEOUS PROVISIONS POSTING AND PUBLICATION TCI shall assume the cost of posting and publication of this Franchise as such posting and publication is required by law and such is payable upon TCI's filing of acceptance of the Franchise. 12.2 12.3 12.4 12.5 12.6 12.7 12.8 GUARANTEE OF PERFORMANCE TCI agrees that it enters into the Franchise voluntarily in order to secure and in consideration of the grant fi.om the City of an eight-year Franchise. Performance pursuant to the terms and conditions of this Franchise agreement is guaranteed by TCI. GOVERmNG LAW ANO VEt~VOE The franchise shall be governed by and construed in accordance with the laws of the State of Washington, and TCI agrees that any action brought relative to enforcement of this fi.anchise shall be initiated in the Superior Court of Kitsap County, and shaH not be removed to a federal court. However, in the case that TCI is adversely affected by any final determination made by the City under Sections 621(a)(1), 625 or 626 of the Cable Act, TCI may commence an action within 120 days after receiving notice of such determination, which may be brought in a) the district court oftbe United States for the judicial district in which the System is located; or b) in any State of Washington court of general jurisdiction having jurisdiction over the City and TCI. SEPARABILITY If any Section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other Section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise, or any renewal or renewals thereof. CONSENT Wherever the consent or approval of either TCI or the City is specifically required in this Franchise, such consent or approval shall not be unreasonably withheld. ORDINANCES TERMINATED The cable television franchise as originally granted by Ordinance No. 3975, shall be deemed terminated upon the effective date of this Franchise, provided that any unpaid Franchise Fees and other outstanding liabilities and obligations of TCI to the City under such pre-existing franchise shall survive such termination. No ~ PARTY BENEFICIARIES There shall be no third party beneficiaries of this Franchise. FRAN~SE ORDINANCE ACCEPTANCE f.'~doc Page 45 TCI CABLE FP.A~CmSE DRAFT, June 23, 1997 12.9 12.10 TCI, within thirty (30) days after the date of passage of the Franchise by the City Council, shall execute and remm to the City three (3) original Franchise Agreements, in which TCI shall declare that it has carefully read the terms and conditions of this Franchise and accepts all of the terms and conditions of this Franchise and the Franchise and agrees to abide by the same. In accepting the Franchise, TCI shall indicate that it has relied upon its own investigation of all relevant facts, that it has had the assistance of counsel, that it was not induced to accept a Franchise, that this Franchise represents the entire agreement between TCI and the City, and that TCI accepts all reasonable risks related to the interpretation of this Ordinance and the Franchise. The Franchise Agreements shall be returned to the City accompanied by the Construction Bond and Performance Bond and evidence of insurance, all as provided in Sections 11.3, 11.4, and 11.7 of this Franchise. In the event TCI fails to submit a Franchise Agreement as provided for herein, or fails to provide the required accompanying documents, the Franchise shall be null and void. INDEPENDENT CONTRACTORS This agreement shall not be construed to provide that TCI is the agent or legal representative of the City for any purpose whatsoever. TCI is not granted any express or implied fight or authority to assume or create any obligation or responsibility on behalf of or in the name of the City or to bind the City in any manner whatsoever. ENTIRE AGREEMENT This agreement, including the appendices that are attached hereto and incorporated herein by reference represents all of the covenants, promises, agreements, and conditions, both oral and written, between the parties. However, the City reserves the right to waive any of these sections without affecting the applicability of other sections not so specifically waived. Waiver of any Franchise requirement by the City shall be in writing in order to be effective. 12.11 12.12 SUCCESSORS AND ASSIGNS This Franchise Agreement, including all appendices, exhibits and addenda, shall be binding to TCI, its heirs, successors, and assigns. NOTICE Written notices shall be deemed to have been duly served if delivered in person to the individual or entity for whom it was intended, or if delivered at or sent by registered or certified United States mail to the last business address known to the party who ~ives the notice. All notices and requests shall be addressed to the City of Bremerton and TCI as follows CITY City Clerk City of Bremerton 239 Fourth Street Bremerton WA 98337 Page46 TCI CABLE FRAnCHiSE DRAFT, Juno 23, 1997 12.13 12.14 TCI TCI Cablevision of Washington, Inc. 1225 Sylvan Way Bremerton WA 98310 TCI West, Inc. 2233 112th Ave. NE Bellevue, WA 98004 EFFECTIVE DATE This Franchise shall be effective Provided, however, that ifTCI does not accept this Franchise pursuant to Section 12.8 and comply with all conditions for such acceptance set forth herein within thirty (30) days after passage of this Franchise Ordinance, this Franchise shall be null and void. APPLICATION FEE Prior to consideration of this Franchise by the City Council, TCI shall pay to the City a non-refundable application fee in the amount of five thousand dollars ($5,000). Such application fee shall not be regarded as fi'anchise fees, nor payment in lieu of franchise fees. 12.15 TCI RESPOI~SIBILITY FOR COMPLIANCE DOCUMENTATION It shah be the responsibility of TCI to maintain ah management information and record- keeping systems which will permit the dear, complete, and timely documentation of compliance with the requirements of this Franchise, including but not limited to the Customer Service Standards identified in Section 9.2; and any request by the City for such documentation shall be satisfied by TCI no later than 15 days foHowin8 the request. APPROVED by the City Council this day of ,199__. PASSED by the City Council this day of ,199__. Approved this __ day of DAVID FAKK, Council President , 199__. ATTEST: LYNN S. HORTON, Mayor KATHLEEN L. McCLUSKEY, City Clerk Page 47 TCI CA~L~ F~x~cI-US£ DRAFt, June 23, 1997 APPENDIX A Hardwired Locations City Council Chambers Olympic College - 2 locations Bremerton High School - 3 locations Admiral Theater Fourth and Pacific Sixth and Pacific Lions Field f.'~navyr,~,~ ~'~ Page48 TCI CABLE FRANCHISE DRAYr, June 23, 1997 APPENDIX B Basic Service Locations All current and future City owned and City occupied buildings and Bremerton Schools as well as the following: City Hall Permit Center Public Works Complex Vehicle Maintenance Facility Utility Headquarters Forestry Headquarters Wastewater Treatment Plan Fire Station 1 Fire Station 2 Fire Station 3 Fire Training Facility Parks Headquarters Swimming Pool Senior Center Pendergast Sports Complex Gold Mountain Golf Course Police West Precinct Admiral Theater Community Theater Fh°da Street Library Bremerton Schools and Administration Offices Olympic Community College Page 49 TCI CABLE ~. ~HISE DRAFI', June 23, APPENDIX C Institutional Network Locations All current and furore City owned buildings as well as the following in priority order: Priority #1 city Hall Permit Center Public Works Complex Vehicle Maintenance Facility Utility Headquarters Forestry Headquarters Wastewater Treatment Plant Fire Station 1 Fire Station 2 Fire Station 3 Fire Training Facility Parks Headquarters Swimming Pool Senior Center Priority #2 Pendergast Sports Complex Gold Mountain Golf Course Police West Precinct Admiral Theater Community Theater Fifth Street Library All Pump Stations Priority #3 Kitsap Regional Library Bremerton Public Schools Olympic College Kitsap Transit Harrison Hospital Cencom All County Offices Fire Districts PSNS Turner Joy $.~,~aoc 7C~ Page $O