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June 21, 1985 CITY OF BREHERTON ORDINANCE NO. 3~ An ordinance establishing the conditions, requirements, obligations, duties for construction, maintenance and operation of a cable communication and distribution system within the City and granting the right, privilege, and authority to a franchisee to construct, operate, maintain and use poles, conduits, cables, wires and other incidental equipment in, upon, under, over, along and across streets, avenues, boulevards, al]eys and other public places of the City of Bremerton. This Ordinance repeals Ordinance No. 3191 relating to Community Antenna Systems Franchise. PREPARED BY: 3-H CABLE COMMUNICATIONS CONSULq'ANTS TABLE OF CONTENTS Section Page(s) 1. Definitions ....................................... 1-5 2. Terms of Franchise ................................ 5-7 3. Police Powers ....................................... 7 4. Rules and Regulations by City ....................... 8 5. Application ......................................... 8 6. Hearing ............................................. 9 7. Acceptance ....................................... 9,10 8. Franchising Costs .................................. 10 9. Technical Standards ............................. 10-12 10. Access Channels ................................. 12,13 1]. System Interconnect ................................ 13 12. Leased Access ...................................... 13 13. Emergency Override .............................. 13,14 14. Emergency Power .................................... 14 15. Parental Control Devices ........................... 14 16. Construction Standards ............................. 14 17. Construction Notification .......................... 15 18. Safety Requirements ................................ 15 19. Undergrounding .................................. 15,16 20. Construction Inspection ............................ 16 21. Upgrade Commencement ............................ 16,17 22. Upgrade Construction Penalties ..................... 17 23 Extension Policy 17-19 24. Allocation of Shared Costs ...................... 19,20 25. Performance Tests .................................. 20 TABLE OF CONTENTS (cont.) Section Page(s) 26. Record Inspection ............................... 20,21 27. Periodic Reports ................................ 21,22 28. Customer Service ................................ 22,23 29. Subscriber's Right of Privacy ...................... 23 30. Franchise Discussions ........................... 23,24 31. Modification of Franchise Obligations .............. 32. Franchise Renewal .................................. 24 33. Right of City to Purchase .......................... 25 34. Continuity of Service ........................... 25,26 35. Removal & Abandonment of Property of Franchisee 26,27 36. Revocation for Cause ............................ 27-29 37. Effect of Termination for Non Compliance ........... 29 38. Transfer of Ownership ........................... 29-31 39. Non Discrimination .............................. 31,32 40. Equal Employment Opportunity ....................... 32 41. Building Moving ................................. 32,33 42. Obscenity .......................................... 33 43. Tree Trimming ...................................... 33 44. Indemnify & Hold Harmless ~- Waiver of Damages ... 33,34 45. Insurance ....................................... 34,35 46. Performance Bond ............. ................... 35,36 47. Severability ....................................... 36 48. Entire Agreement .................... ............... 36 49. Contractual Relationship ........................... 36 50. Applicable Law; Venue ........................... 36,37 51. Theft of Service .................................... 37 52. Repealer Clause .................................... 37 THE CITY COUNCIL OF THE CITY OF BREMERTON DOES ORDAIN AS FOLLOWS: Section 1. Definitions. (a) "Access channels" means free composite channels to be used for educational purposes and by government and public agencies and/or their representatives. (b) "Applicant" means any person or entity that applies for a franchise. (c) "Basic services" means those broadcast and non broadcast services provided by the cable operator at the lowest monthly charge and consisting of over-the-air broadcast signals mandated by the FCC, access channels, and any other distant retransmission and/or satellite selected by the cable operator. (d) "CATV" means a community antenna television system as hereinafter defined. (e) "Channel" means a single path or section of the spectrum which carries a television signal. (f) "City" means the City of Bremerton, a municipal corporation of the State of Washington. (g) "Community antennae television system", "cable television system" or "system", means a system of antennas, cable, wires, lines, towers, transmission lines, equipment or facilities, designed and constructed for the purpose of producing, receiving, transmitting, amplifying, scrambling and distributing audio, video and other forms of electronic or electrical signals, located in whole or in part in the city. (h) "Co~w~rter" means al, e]_ectronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and by an a[>~>ropriate channel selector which also permits a subscriber to view all signals delivered at designated converter dial locations. (i) "Council" means the present governing body of the city or any future board constituting the legislative body of the city. (j) "Decoder" means electronic equipment which converts an electronically scrambled picture into a viewable signal. (k) "FCC" means the Federal Communications Commission, a regulatory agency of the United States government. (1) "Franchise" means the non-exclusive right or authority to construct, operate and maintain a cable television system by use of city owned rights-of-way, easements or other publicly owned properties. (m) "Franchisee"' means the person, firm or corporation to whom or which a franchise, as hereinabove defined, is granted by the council under this ordinance and the lawful successor, transferee or assignee of said person, firm or corporation. (n) "Gross revenues" means any and all compensation, received from the provision of CATV service directly or indirectly received by a Franchisee not including any taxes on services furnished by the Franchisee, imposed on any subscriber or user by any governmental --2-- unit, agency or instrumentality and collected by the Franchisee for such entity. (o) "Installation" means the connection of the system from feeder cable to subscribers' terminals. (p) "Institution" means a building or buildings where service may be utilized in connection with business, trade, profession, public agency or service, school, or non-profit organization. (q) "Institutional network" means a cable communications network designed principally for the provision of non-entertainment interactive services to businesses, schools, public agencies or other non-profit agencies for use in connection with the on-going operations of such institutions. (r) "Interactive services" means services provided to subscribers where the subscriber either (a) both receives information consisting of either television or other signal 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 or for any other purpose; or (b) transmits signals to any other location for any purpose. (s) "Leased access channel" means any channel or portion of a channel available for programming for a fee or charge by persons or entities other than the Franchisee. -3- (t) "Local origination channel" means any channel or ~ortion oi a channel which the local Franchisee offers for programming. (u) "Office" means the City Clerk or other entity designated by the city as being responsible for the administration of the franchise for the City. (v) "Operator" means the person or whom a franchise is granted pursuant to the provisions of this Ordinance or to whom such a franchise has been transferred or assigned in accordance with the provisions of this Ordinance. (w) "Premium services" means p~ogramming over and above those provided basic services for which there ~.s additional charge. (x) "Property of Franchisee" means all property owned, installed or used by a Franchisee in the conduct of a CATV business in the City under the authority of a franchise granted pursuant to this ordinance. (y) "Residential network" means a cable communications network designed principally for the delivery of entertainment, community access and/or interactive services 'to individual dwelling units. (z) "Scrambler" means a device used to electronically alter a signal so that it can be viewed only on a TV receiver equipped with a special decoder. (aa) "Street" means the surface of and the space above and below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway, or drive, now or hereafter existing as such within the City. -4- (bb) "Subscriber" means any person or entity legally receiving for ~y purpose the CATV service of a Franchisee. (cc) "Tier" means any group or groups of channels so designated and marketed by the Operator for a separate charge to a subscriber. Section 2. Terms of Franchise. (a) AUTHORITY TO GRANT FRANCHISE OR LICENSES FOR CABLE TELEVISION: It shall be unlawful to engage in or commence construction, operation, or maintenance of a cable communications system without a franchise issued under this Ordinance. The Council may, by ordinance, award a non-exclusive franchise to construct, operate and maintain a cable communications system within all or any portion of the City to any person, whether operating under an existing franchise or not, who make application for authority to furnish a cable communications system which complies with the terms and conditions o£ this Ordinance. Provided, that this section shall not be deemed to require the grant of a franchise to any particular person or to prohibit the Council from restricting the number of Franchisees should it determine such a restriction would be in the public interest. Any franchise granted pursuant to this Ordinance shall be non-exclusive and shall not preclude the City from granting other or further or future franchises -5- or permits or preclude the City from using roads, rights-of-way, streets or other public properties or affect its jurisdiction over them or any part of them, or limit the full power of the City to make all necessary changes, as the City in its sole discretion shall decide, including the dedication, establishment, maintenance and improvements of all new rights-of-way and thoroughfares and other public properties of any type. (b) INCORPORATION BY REFERENCE: (1) The provisions of this Ordinance shall be incorporated by reference in any franchise agreement or license approved hereunder. (2) The provisions of any Request for Proposals (RFP) issued hereunder, including any minimum system and services specifications set forth therein, shall be incorporated by reference in any franchise agreement or license approved hereunder. However in the event of any conflict between the Request for Proposal (RFP) and this ordinance, such ordinance having been reached by negotiation with the Franchisee, this ordinance will be the prevailing document. (3) The provisions of any proposal submitted and accepted by the City shall be incorporated by reference in the applicable franchise or license. However in the event of any conflict between the proposal and this ordinance, such ordinance having been reached by negotiation --6-- wLth the Franchisee, this ordinance will be the prevailing document. (c) NATURE AND EXTENT OF THE GRANT: Any franchise granted hereunder by the City shall authorize the Franchisee, subject to the provisions herein contained: (1) To engage in the business of operating and providing cable communication service and the distribution and sale of such service to subscribers within the City; (2) To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, attachments, supporting structures, and other property as may be necessary and appurtenant to the cable communications system; and, in addition, so to use, operate, and provide similar facilities, or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other Franchisee franchised or permitted to do business in the City. Section 3. Police Powers. In accepting any franchise, the Franchisee acknowledges that its rights hereunder are subject to the police power of the City to adopt and enforce general ordinance necessary to the safety and welfare of the public; and, it agrees to comply with all applicable general laws enacted by the City pursuant to such power. --7-- Section 4. Rules and Requlations by City. (a) In addition to the powers of the City to regulate and control any franchise it issues, within the authority granted to it by the Cable Communications Policy Act of 1984, and those powers expressly reserved by the City, or agreed to and provided for in a franchise, the right and power is hereby reserved by the City to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers and Jn furtherance of the terms and conditions of the franchise agreement and this Ordinance, in so far as such additional regulations do not materially alter the franchise agreement. (b) The City Council reserves the right to delegate its authority for regulation and for franchise administration and enforcement to a designated agent; and further reserves the right to approve all guidelines for the administration of community access channels, as provided in the Cable Communications Policy Act of 1984 and to delegate this authority at its discretion to the agent of the City working in cooperation and with operational and technical guidance from the Franchisee. Section 5. Application. ' An applicant for a franchise to construct, operate, or maintain a cable television system within the City shall file an application in a form satisfactory to the City, providing sufficient information as required by the City or its designee. Section 6. Hearing. After the application from a prospective Franchisee has been received, the City Council shall conduct a public hearing to determine the following: (a) That the public will be benefited by the granting of a franchise to the Applicant. (b) That the Applicant has requisite financial and technical resources and capabilities to build, operate and maintain a cable television system in the area. (c) That the Applicant has no conflicting interests, either financial or commercial, which will be contrary to the interests of the City. (d) That the Applicant will comply with all terms and conditions placed upon the Franchisee by this Ordinance and the franchise ordinance. (e) That the Applicant is capable of complying with all relevant federal, state and local regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise. Section 7. Acceptance. (a) No franchise granted pursuant to the provisions of this Ordinance shall become effective u~less and until the Ordinance granting same has become effective. (b) Within thirty (30) days after the passage date of the ordinance awarding a franchise, or within such extended period of time as the council in its discretion -9- may authorize, the Franchisee shall file with the City Clerk its written acceptance, in form satisfactory to the City Attorr~ey, of the franchise, together with the bond and in:~t]rance policies required by Sections herein. Section 8. Franchising Costs. In addition to the franchise fee required under Section 6 of the franchise agreement, the Franchisee shall pay to the City, upon acceptance of any franchise granted hereunder, the City's out-of-pocket costs associated with the selection and franchising process. However such costs will be limited to consulting fees and expenses, and the costs of publishing notices and ordinances. Such payment is not deductible or considered in lieu of franchise fee payments. However, the Franchisee may make this payment in four equal monthly payments. The first payment is due within thirty (30) days of receipt of appropriate invoice from the City. If two or more franchises are granted, Franchisees shall share costs proportionately as indicated in Section 24 of this ordinance. Section 9. Technical Standards. Franchisee shall comply with the Federal Communications Commission (FCC) Ru]_es and Regulations, Part 76, Subpart K (Technical Standards). To meet system design objectives, the following referenced specifications will also apply: 1) Applicable NatiOnal/Federal,. City, County and state Codes and Ordinances. 2) Applicable Utility Joint Attachment Practices. 3) National Electrical Safety Code, NFPA No. 70. 4) Local Utility Code Requirements. 5) Local Right-of-way Procedures. The system will be designed and constructed to meet all applicable technical performance specifications and standards over a temperature range of -+ 50° F from the mean temperature of the Bremerton area, and to function in all expected environmental extremes. Performance standards definitions and measurements will be in compliance with National Cable Television Association (NCTA) Manual 741 Signal Leakage and Interference Control and NCTA Standard 008-0477: Standards of Good ~ngineerinq Practices for Measurements on Cable Television ~ystems. The forward communications system will be capable of a minimum carriage of thirty-five (35) 6 MHz video channels, the full FM broadcast band and adequate bandwidth for pilot carriers or such auxiliary signals as required for system control in the event that future restrictions [,rohJb[t use of portions of the band. A reduction in channel capacity may be required or modifications made to the slope/gain control method to retain channel capacity. (a) PREVENTIVE MAINTENANCE: A comprehensive routine preventive maintenance program shall be developed, effected and maintained for each system by the respective Franchisee to ensure continued top quality cable communications operating standards in consonance with FCC Part 76 and the technical specifications stipulated in the franchise agreement. (b) PROOF OF PERFORMANCE: The services of a newly constructed system, or one that has undergone a major upgrade, shall not be offered for sale prior to proof-of-performance testing in accordance with FCC Part 76.601 and technical specifications and standards as set forth in the franchise agreement. Franchisee will comply with all applicable requirements in Volume III, Part 73; and in Volume XI, Part 76, Section 76 ol the FCC l{u]os and Band width and channel frequency will meet the required specifications of 76.605(a) (1) and 73.603(a). Visual and audio carriers frequencies will be as per 76.605(a) (2) and 76.605(a) (3). Signal levels at the television will always exceed 1 mv at 75 ohms as per 76.605(a) (4). Signal variance will comply with Section 76.605(a) (5). Signal to noise will comply with Section 76.605(a) (9). Cross Modulation will comply with Section 76.~05(a) (10). Terminal Isolation will never be less than 20 db, this exceeds 76.605(a) (11). Section 10. Access Channels. Franchisee will provide access channels dedicated for public, educational and government purposes. One access channel may be initially dedicated for the use of all public, educational and government access until such utilization -12- warrants se[~arate vis,wing channels. Additional access channels shall be activated when the first is in use eighty percent (80%) of the weekdays for eighty percent (80%) of the time during any consecutive thirteen (13) hour period for ten (10) consecutive weeks. The additional access channel will revert to the control of the Franchisee, to be programmed at Franchisee's discretion, if the first access channel fails to meet the above specified level ot~ programming. Later should the minimum levels of programming again be exceeded, whether such reversion is permanent or temporary will be determined by the City Council. If temporary, the City shall provide twelve (12) months notice to Franchisee of the return of such channel to access use. Section 11. System Interconnect. Franchisee(s) will immediately upon award of the franchise negotiate with any other Franchisee(s) so designated by the City to arrange interconnecting devices so that access programming may be viewed by all subscribers to all systems within the City. Section ]2. Leased Access. Franchisee will designate channel capagity for commercial use by persons unaffiliated with the Franchisee in accordance with federal law. Section 13. Emergency Override. Franchisee will make provision for emergency alert to override all television audio signals distributed by -13- o~erator. Franchisee shall designate an emergency video channel for emergency announcements. Control of these facilities shall be the authority of the City. Franchisee shall install such system within twelve (12) months of the date of the award of the franchise. Testing and training will be provided upon a mutually agreed upon basis. If two or more franchises are granted, Franchisees shall share costs proportionately as indicated in Section 24 of this ordinance. The City wi]] indemnify the Franchisee for any action brought against it in the exercise of such authority on behalf of the City. Section 14. Emergency Power. Franchisee shall provide a standby power system to automatically activate equipment at the headend and hubs, if applicable, in event of a primary electrical failure. Section 15. Parental Control Devices. Upon subscriber request, Franchisee will make available suitable devices for limiting access to cable channels. Section 16. Construction Standards. All facilities constructed under this ordinance shall be placed and maintained at such places and positions in or upon such streets, avenues, alleys and public places as shall not interfere with the free passage of traffic and the free use of adjoining property, and shall conform to the National Electric Code, State of Washington, and City regulations pertaining to such construction. -14- Section ]7. Construction Notification. The City may establish minimum requirements for advance notification to residents adjacent to proposed construction areas. Section 18. Safety Requirements. (a) The Franchisee shall, at all times, employ professional care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, ii, juries, or nuisances to the public. (b) All structures and all lines, equipment and connection in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of the franchise area, wherever situated or located, shall at ail times be kept and maintained in a safe, suitable condition, and in good order and repair. (c) The City reserves the general right to see that the system of the Franchisee is constructed and maintained in a safe condition and if unsafe condition is found to exist, to order the Franchisee to make necessary repairs and alterations, within a reasonable time period, thereafter the City may make them or have them made, and collect all reasonable cost and expense thereof from the Franchisee. However, nothing in this ordinance shall be construed to place an obligation on the city to make such inspections. Section 19. Undergrounding. In those areas and portions of the City where the transmission or distribution facilities of both the public -15- utility providJ~g telephone service and those of the utility providing electric service are underground or hereafter may be placed u~derground, then the Franchisee shall likewise construct, ope~'ate and maintain all of its transmission and distribution facilities underground. Amplifiers in Franchisee's transmission and distribution lines may be placed in approl>riate housing upon the surface of the ground. Section 20. Construction Inspection. Should th~ City have probable cause either through subscriber complaints or other means that a problem may exist in the technical performance of the system, the Franchisee will be notified of such alleged defects and furnished the data leading to such supposition. The Franchisee will be given an opportunity to correct such defects within a reasonable time. If such condition(s) persist, the City upon advance notification of no less than one week, and upon proper identification of inspectors, shall have the right to inspect the Franchisee's system to ascertain J.f the Franchisee is in compliance with the standards specified in this ordinance. Costs for such an inspection will be borne by the Franchisee provided such deficiencies exist. Section 2]. Upgrade Commencement. Upon granting of the franchise, Franchisee shall immediately pursue the obtaining of all other necessary permits and licenses with all due diligence and speed. No later than ninety (90) days subsequent to obtaining -16- such licenses and permits, Franchisee shall begin upgrade of the system, if not already so done, in accordance with the overall schedule as set forth by this ordinance. Section 22. Upgrade Construction Penalties. A Franchisee shall be assessed the sum of Five Hundred Dollars ($500.00) per day as compensatory liquidated damages for each day the installation upgrade is not fully completed after the expiration of the twelve (12) month period following the awarding of the franchise, except for delays due to acts of God. Franchisee may obtain extensions of upgrade deadlines due to delays caused by circumstances beyond Franchisee's control. The City shall have the right, solely and exclusively within its reasonable discretion, to grant such extensions and to waive such penalties. Any such waiver shall not constitute waiver of future rights to enforce this penalty. Section 23. Extension Policy. Areas subsequently annexed by the City will be completed, within six (6) months, subject to the qualification that any newly developed dwellings shall have cable television service made available if there are at least thrity-five (35) such dwelling units per cable mile. Such extension will be provided at no cost other than the normal connection fee, provided that such an extension is technically and physically feasible. The cable mile is to be measured in extension length of the cable required for service located within the public way or easement and does not include the length of the service -17- drop to the subscriber's residence. The Franchisee will not deny access to cable service to any group of potential residential cable subscribers because of the income of the residents of the local area in which the group resides. However in the case of where the distances are greater than those specified above, service will be made available on the basis of cost to the Franchisee of materials, labor, and easements. (a) UNDERGROUND iNSTALLATION OF SYSTEM: In cases of new construction (such as new subdivisions) or property development where utilities are to be placed underground, Franchisee will install equipment to provide future service. The developer will be required to give Franchisee reasonable notice of such construction or development, including a copy of any final plan, and of the particular date on which open trenching will be available for Franchisee's installation of conduit, pedestals and/or vaults, and laterals. Franchisee will also provide specifications as needed for trenching. For all new residential structures which are to be served by underground utilities, the developer of the subdivision or development may acquire cable television service for the development under the following conditions: (i) The developer will perform at its expense all trenching and backfilling necessary for the provision of cable television service, including the furnishing of any imported backfill material which -18- is required. (ii) The developer will furnish and install for Franchisee any necessary distribution conduit and substructures, including pedestals, required in accordance with Franchisee's plans and specifications. Until and unless the aforementioned conditions are met, Franchisee will not be obligated to construct a cable television system there. (b) INDIVIDUAL UNDERGROUND INSTALLATION: If the requested installation is to be placed underground, the potential subscriber must pay for furnishing open trench, as specified by Franchisee, backfilling and restoring to original condition. Franchisee reserves the right to require advance payment for such work. The potential subscriber will arrange for all necessary easements over or under private property. (c) SHARE OF PUBLIC FUNDS: Franchisee requires an equitable share of any public funds, if any, which are made available to companies which have been lawfully directed by the City to remove or relocate property from a Public Way. (i.e., for aerial to underground conversions.) (d) FUTURE INCORPORATIONS: In the event additional adjacent territory is incorporated within ,the City limits, by annexation or otherwise, Franchisee's rights and duties shall be deemed to include such additional territory. Section 24. Allocation of Shared Costs. If more than one Franchisee is awarded a franchise, -19- certain costs such as refranchising costs reimbursable to the City, ongoinq training expenses, equipping and providing manpower for access studio, bi directional cable installed, emergency power and override, etc. will be shared proportionately to basic subscribers held by each Franchisee. The Franchisee with the greater number of subscribers will provide such facilities and manpower required. The Franchisee(s) with the lesser number of basic subscribers will re.imburse the furnishing Franch.[see, at direct cost, for ali such services and equipment. Such arrangements will be made directly between the cable operators, without involvement by the City. However, refranchising costs reimbursement as defined in Section 8 will be billed directly to each Franchisee based upon the same pro rata basis as above. Such expense will be submitted by the City within thirty (30) days after a franchise is granted and will be due and payable in equal monthly payments over a four (4) month period. Section 25. Performance Tests. On an annual basis, or as may be required by the City, the Franchisee shall furnish test results to determine that such system is adhering to technical standards as required by the FCC. Section 26. Record Inspection. The City reserves the right 'to inspect the records of the Franchisee at any time during normal business hours. -20- ~;uch ttocuments will include, but not be limited to such information as financial records, tax returns, and plans. Section 27. Periodic Reports. Each Franchisee will furnish to the Office within sixty (60) days of the conclusion of its fiscal year, a report of its activities, including, but not limited to the following: (a) Annual report and 10-K Report to the SEC, if required by the franchise. If the Franchisee is not required to file such reports, an independent certified audited financial report will suffice. However, it is understood that such reports may be submitted beyond this reporting period if consistent with Franchisee's corporate policies. (b) Listings of the number of subscribers within the City. (c) The number of homes passed. (d) The number of subscribers with basic service. (e) The number of subscribers with premium services. (f) The number of subscribers using two-way services. (g) The number of hook-ups in period. (h) The number of disconnects in period. (i) The number of miles of new or rebuilt ~able laid in period. (j) Total number of miles of cable in city. (k) Comments on citizen relations such as number of complaints received and how those complaints were resolved. -21- (1) I']a~s ~7or ~uture technical upgrading. (m) Plans for future programming and/or changes. (n) Maps indicating existing location of headend equipment, trunk and distribution lines and projected routes with construction completion estimates by month or by quarter if changed from previous reporting period. (o) General comments. Section 28. Customer Service. The Franchisee shall provide a local business office which subscribers may telephone without incurring added message or toll charges. Franchisee shall provide an adequate number of telephone lines, telephone instruments and trained personnel to insure against undue delay in answering consumer requests. In addition, telephone answering recording devices shall be activated after normal business hours so that all such inquiries and/or complaints may be monitored and prompt response made by the Franchisee. The efficiency of such telephone response will be judged by the City by citizens complaints and spot checks by City officials or its designee. Upon notification of any deficiency Franchisee will then take immediate corrective action to satisfy such problem(s). In the event that the Operator's service to any subscriber, is interrupted for twenty-four (24) consecutive hours, except for acts of God and matters beyond control of the Operator, and except in circumstances for which the prior approval of the interruption is obtained from the City, the Operator shall, upon request of the affected -22- subscriber, provide a pro-rata rebate of the total monthly fees to each affected subscriber in addition to any other applicable refund or penalty. The Operator shall ensure that all subscribers and/or members of the general public have recourse to a satisfactory hearing of any complaint. The Operator shall take affirmative action to make known to all subscribers the method of obtaining such a hearing including the provisions of this section enumerated below. Should a person have an unresolved complaint regarding cable service or the actions or non-actions of the Operator such complaint may be lodged with the City, or the designee of the City. The City retains responsibility for continuing oversight administration of any franchise granted pursuant to this ordinance and under the terms thereof. It may delegate such authority to an agent if desired. The Operator shall provide this information together with appropriate telephone and address to all subscribers on informative material left with a new subscriber and, at least once a year, through notification of such address by mail. Section 29. Subscribers' Right of Privacy. The Franchisee will be bound by all of the provisions of Section 631 of the Cable Communications Poli~y Act of 1984. Section 30. Franchise Discussions. A meeting between the Franchisee and the City shall be held annually on or about the anniversary date of the granting of the franchise. However, such meetings may -23- be cal.[©d at other such 'times as may be deemed necessary by the City. The subjects of the annual meetings will cover, but not be ] ] mited to, such subjects as: consumer complaints, construction progress, programming, state of the art improvements and other matters. Such a meeting will be scheduled on request of the City of Bremerton and/or cable operator. The agenda for the meeting will be established jointly, two weeks prior to the meeting date. Section 31. Modification of Franchise Obligations. Franchisee's rights to modify its franchise obligations shall be limited to those provided for in Section 625 of the Cable Communications Policy Act of 1984. If any portion of this Ordinance should be inconsistent with any rule or regulation now or hereinafter adopted by the FCC, then to the extent of the inconsistency, the rule or regulation of the FCC shall control for so long as such rule or regulation shall remain in effect, but the remaining provisions of this Ordinance shall not hereby be effected. Section 32. Franchise Renewal. The provisions of Section 626 of the Cable Communications Policy Act of 1984, as it existed on December 29, 1984, will effectively govern the actions of the City and the Franchisee in proceedings relating to franchise renewal. These provisions will remain in force until and unless future amendments to this act are expressly mandated to supersede their specifications. -24- Section 33. hi.~ht of Ci. tl to Purchase. Tile City reserves the right to purchase the existing system under provisions of Section 627 of the Cable Communications Policy Act of 1984, as it existed on December 29, 1984. These provisions will remain in force until and unless future amendments to this act are expressly mandated to supersede their specifications. Section 34. Continuity of Service. (a) it shall be the right of all subscribers to continue receiving service so long as their financial and other obligations to the company are fulfilled. In this regard the Operator shall act so far as it is within the control of the Operator so as to ensure that all subscribers receive continuous uninterrupted service during the term of this franchise. (b) In the event the Operator fails to operate a system for twenty-four 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 a natural disaster, the City may, at its option, operate the system or designate someone to operate the system until such time as th~ Operator restores service to conditions acceptable to the City Council or a permanent operator is sei~Cted. If the City is required to fulfill ~his obiigation f6r the Operator, the Operator shall reimburse the City for all reasonable costs or damages in excess of revenues -25- ~rom the system received by the City that are the result of the Operator's failure to perform. Section 35. Removal & Abandonment of Property of Franchisee. The City may direct the Franchisee to temporarily disconnect or bypass any equipment of the Franchisee in order to complete street construction or modification, install and remove underground utilities, or for other reasons of public safety and efficient operation of the City. Such removal, relocation or other requirement shall be at the sole expense of the Franchisee. In the event that the use of any part of the CATV system is discontinued for any reason for a continous period of twelve (12) months, or in the event such system or property has been installed in any street or public place without complying with the requirements of Franchisee's franchise or this ordinance, or the franchise has been terminated, cancelled or has expired, the Franchisee shall promptly, upon being given ten (10) days' notice, remove from the streets or public places all such property and poles of such system other than any which the City may permit to be abandoned in place. In the event of such removal, the Franchisee shall promptly restore t~he street or other area from which such property has been removed to a condition similar to that condition existing before such removal. -26- Any property of the Franchisee remaining in place sixty (60) days after the termination or expiration of the franchise shall be considered permanently abandoned. The City may extend such time not to exceed an additional sixty (60) days. Any property of the Franchisee to be abandoned in place shall be abandoned in such manner as the City shall prescribe. Upon permanent abandonment of the property of the Franchisee in place, the property shall become that of the City, and the Franchisee 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. Section 36. Revocation for Cause. Any franchise granted by the City may be terminated during the period of such franchise for the following reasons: (a) Failure by the Franchisee to comply with material provisions of this Ordinance and applicable City, State, and Federal law. (b) Failure by the Franchisee to comply with applicable and material FCC regulations, or other material provisions of the Cable Communications Policy Act of 1984. (c) Petition by the Franohisee if approved by the City Council. The procedure to be followed resulting in ~ermination for any of the above reasons, save Franchisee's request, -27- will be: (aa) City Council will specify such deficiencies in writing and will direct in writing Franchisee to correct such deficiencies or comply with such regulations within thirty (30) days of receipt of notice. (bb) Failure to do so will cause the matter of termination to be brought before the City Council. (cc) At such hearing the Franchisee and other interested parties may offer evidence explaining or mitigating such non compliance. The City Council will make the determination as to whether such non compliance was with just cause. In the event the City Council shall find such non compliance was without just cause the City Council may fix an additional time period to cure such deficiency(ies). If this has not been effected at the expiration of this additional extended period, the City Council may pass a resolution declaring the franchise to be terminated and forfeited. (dd) If the Operator appeals the revocation and termination of the franchise through legal remedies the revocation of such franchise shall be held in abeyance pending such judicial review by a, court of competent jurisdiction. (ee) Provided, nothing contained in the above sections of this section shall prevent the issuance of a~ new franchise by the City Council to any Operator who has -28- had a franchise revoked, on satisfactory assurances made to tl~e City Council that the terms and conditions of this Ordinance can be met by the former Operator. Section 37. Effect of Termination for Non Compliance. If any franchise is terminated by the City by reason of the Operator's non compliance, that part of the system under such franchise located in the streets and public property, shall, at the election of the City, become the property of the City at a cost consistent with the provisions of Section 627(b)(1) of the Cable Communications Policy Act of 1984, with reduction for any damages and costs incurred by the City. These costs shall include but not be limited to, any payment made by the City pursuant to a Resolution of the City Council authorizing or directing another Operator to operate the system for a temporary period until a franchise therefore is granted. If the City does not purchase the system, the Operator shall ur~on Order of the City Council, remove the system as required under Section 34. Section 38. Transfer of Ownership. Any franchise awarded by the City shall be based upon an evaluation by the City of each application, the qualifications, and other criteria as such pertains to each particular Applicant. No franchise can be sold, transferred, leased, assigned, or disposed of in whole or in part either by sale, voluntary or involuntary, merger, consolidation -29- or otherwise, unless approval is granted by the City Council. An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of more than fifty percent (50%) or more of the beneficial interests, singlely or collectively. The Operator shall promptly notify the City prior to any proposed change in, or transfer of, or acquisition by any other party of control of the Operator's company. The word "control" as used herein is not limited to majority stock ownership but includes actual working control in whatever manner exercised. Every change, transfer or acquisition of control of the Operator's company shall make the franchise subject to cancellation unless and until the City shall have consented thereto. In the event that the City adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the City may cancel the franchise unless control by the Franchisee is restored to a status acceptable to the City Council. The consent or approval of the City Council to any assignment, lease, transfer, sublease, or mortgage of any franchise granted to an Operator shall not constitute a waiver or release of the rights of the City in and to the streets. , Such approval of transfer, subject to conditions enumerated above, shall not be unreasonably withheld. Approval of the City shall not be required if said transfer is from Franchisee to another person or entity, controlling, -30- controlled by or under common control with the Franchisee. Approval shall not be required for mortgaging purposes provided that less than fifty percent (50%) of the beneficial interests, as described above are affected by such mortgage. Upon the commencement of a foreclosure action or other actions which could possibly result in a judicial sale of all or a substantial part of the cable system, the Operator shall notify the City Council of such fact, and such notification shall be treated as a notification that a change in control of the company has taken place, and the provisions of this Ordinance governing the consent of the City Council to such change in control of the Operator shall apply. Any transfer or assignment approved by the City shall be evidenced by a written instrument, a duly executed copy of which shall be filed in the Office within ninety (90) days after the approval of the transfer or assignment by the City. By said instrument, the assignee shall agree to comply with all terms of this Ordinance, the assignor's application and any additional terms required by the City. Section 39. Non Discrimination. The Franchisee shall not as to rates, charges, service facilities, rules, regulations or in any other respect make or grant any preferences or advantage to any person nor subject any person to any prejudice or disadvantage, provided that nothing in this franchise shall be deemed to prohibit the establishment of a graduated scale of charges and -31- classified rate schedules to which any customer coming within such classification would be entitled, and provided further that connection and service charges may be waived or modified during promotional campaigns of Franchisee. Installation and housedrop hardware shall be uniform throughout the City, except that the Franchisee shall be free to change its hardware and installation procedure as the art progresses. Section 40. Equal Employment Opportunity. The Franchisee will comply with all provisions of Section 634 of the Cable Communications Policy Act of 1984. Section 41. Building Movinq. Whenever any person shall have obtained permission from the City to use any street for the purpose of moving any building, a Franchisee, upon seven (7) days' written notice from the Director of Public Works shall raise or remove at the expense of that person desiring to move the building, any of its or their wires which may obstruct the removal of such building, provided that the moving of such building shall be done in accordance with regulations and general ordinances of the City at such reasonable hours and in such reasonable manner as shall cause ~he least interference with the lines of Franchisee and other franchise holders. It is further provided that the person or persons moving such building shall indemnify and save harmless said Franchisee of and from any and all damages or claims of -32- whatsoever kind or nature caused directly or indirectly for such temporary arrangement of the lines and poles of the Franchisee. Section 42. Obscenity. No Franchisee may exercise control over program content on the public access channel except to the extent necessary to prevent the presentation of program material prohibited by federal, city or state codes. The Franchisee will adhere to FCC Rule 76.211 as now in force and as may be amended as well as with the applicable sections of the Cable Communications Policy Act of 1984. Section 43. Tree Trimminq. With City approval, the Franchisee shall have the authority to trim trees upon and overhanging streets and public ways and places of the franchise area so as to prevent the branches of such trees from coming in contact with the wires and cables of the Franchisee and shall be responsible for debris removal from such activities, except that, at the option of the City, such trimming may be done by it or under its supervision and direction at the expense and liability of the Franchisee. Franchisee shall give due notice to occupant prior to undertaking such effort., Section 45. Indemnify & Hold Harmless - Waiver of Damages. The Franchisee will be required to .indemnify and hold harmless the City from any and all liabilities, fees, costs -33- and damages, whether to person or property, or expense of any type or nature which may occur to the City by reason of the construction, operation, maintenance, repair and alterations of Franchisee's facilities or any other actions of Franchisee in the City of Bremerton. In any case in which suit or action is instituted against the City by reason of damages or injury caused by Franchisee, the City shall cause written notice thereof to be given to the Franchisee and Franchisee thereupon shall have the duty to appear and defend in any such suit or action, without cost or expense to the City. No privilege or exemption shall be granted or conferred upon Franchisee by any franchise except those specifically prescribed therein, and any use of any street shall be subordinate to any prior lawful occupancy of the street or any subsequent improvement or installation therein. Section 45. Insurance. The Franchisee shall concurrently with the filing of an acceptance of award of any franchise granted hereunder, furnish to the City and file with the City Clerk or its designee and at all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, in protection of the City, its officers, boards, commissions, agents and employees, in a company approved by the City Clerk and a form satisfactory to the City Attorney, protecting the City and all persons -34- against liability for loss or damage for personal injury, death and property damage, and errors or omissions, occasioned by the operations of Franchisee under such franchise, with minimum limits of One Million Dollars ($1,000,000) for personal injury and property damage, and One Million Dollars ($1,000,000) combined. The policies mentioned in the foregoing paragraph shall name the City, its officers, boards, commissions, agents and employees, as additional insured and shall contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the City thirty (30) days in advance of the effective date thereof. If such insurance is provided by a policy which also covers Franchisee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. Nothing in said insurance policy shall hinder or impair the other legal rights of the City in this regard. Section 46. Performance Bond. The Franchisee shall promptly repair or cause to be repaired, any damage to City property of every type caused by the Franchisee, or any agent or firm acting on behalf of the Franchisee, during the life of the franchise. Franchisee shall comply with all present and future ordinances and regulations of the City regarding excavation or construction and, whenever deemed necessary by the City, shall be required to post a performance bond, in an amount -35- of Twenty-five Thousar~l I)ol]ars ($25,000) for the first five (5) years of the franchise and Ten Thousand Dollars ($10,000) for the remaining period, in favor of the City warranting, among other things, that all restoration work will be done promptly and in a workmanlike manner. Section 47. Severability. Each section, subsection, or other portion of this ordinance shall be severab]e and the invalidity of any section, subsection, or other portion shall not invalidate the remainder. Section 48. Entire Agreement. This agreement, including the exhibits and addenda attached hereto and forming a part hereof (if any) are all of the covenants, promises, agreements, and conditions, either oral or written, between the parties. Section 49. Contractual Relationship. This agreement does not constitute Franchisee the agent or legal representative of the City for any purpose whatsoever. Company is not granted any express or implied right 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 or thing whatsoever. Section 50. Applicable Law; Venue. This agreement shall be construed and interpreted in accordance with the laws of the State of Washington. In the event a dispute is litigated in Federal Court, such -36- dispute 3hall. be ]~Cigated in tim UniCed 5tuareg, ])i. stric~ (k~rt for Ye~;tern District of ~'ashi~gto~ at Tacoma. '~;~ ti~e e~'ent a dispute litigated i.n Superior Court , such dispute ~ha]] bu litigated in Kitsap ~;ounty Superi_or Court. Section 5i.. Theft (>~ ServSce V:i::>lat:~;rs o] tile C;itv of Bremerton ~rdJnance #339¢~ and/or i,I.C,[.~. 9A.56 will b~ pros:eruted accordingly. ()rdinance No, 3i9t ]s hereby repealed APi'ROVEI) ()N fir:;t reading tLt,~ _ ..c~¢_.~._ d~ oi . . ~: .... : ........... 9 8;. /'~ ?A','~SEI) h', tl~e ~;:tv Cnu~ci i, CJt,, of ' rt~m ~eqm i.~:,li-d l~v t:he t