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?
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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.
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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.
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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~
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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.
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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
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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
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TCI CABLE FP, ANCmSE
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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.
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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
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TCI CABLE FRAnCHiSE
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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
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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.
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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.
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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.
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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
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