HomeMy WebLinkAbout5012
ORDINANCE NO. 5012
AN ORDINANCE granting Comcast of Washington IV,
Inc:, the right, privilege, authority and franchise to construct,
operate, maintain, reconstruct, repair and upgrade the Cable
System upon, over, under, along, across and through the Franchise
Area for the purpose of providing Cable Services, subject to the
terms and conditions set forth in this Ordinance and applicable
law.
WHEREAS, the City has reviewed Grantee's performance under the prior
Franchise and the quality of service during the prior Franchise term, has identified the future
cable-related needs and interests of the City and its citizens, has considered the financial,
technical and legal qualifications of Grantee, and has determined that Grantee's plans for
constructing, operating and maintaining its Cable System are adequate, in a full public
proceeding affording due process to all parties; and
WHEREAS, the public has had adequate notice and opportunity to comment on
Grantee's proposal to provide cable television service within the City; and
WHEREAS, the City has a legitimate and necessary regulatory role in ensuring
the availability of cable communications service, and reliability of cable systems in its
jurisdiction, the availability of local programming (including public, educational and
Governmental Access programming) and quality Customer service; and
WHEREAS, diversity in Cable Service programming is an important policy
goal and the Grantee's Cable System should offer a wide range of programming services; and
WHEREAS, Subscriber interests and competitive factors within the Cable
Service market should be an essential characteristic of this Franchise; and
WHEREAS, the City is auth9rized by applicable law to grant one or more
nonexclusive Franchises to construct, operate and maintain cable systems within the
boundaries of the City; and
WHEREAS, in consideration of the mutual promises made herein, and other
good and valuable consideration as provided herein, the receipt and adequacy of which are
hereby acknowledged, City and Grantee do hereby agree as follows; NOW THEREFORE
THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON,
DOES HEREBY ORDAIN AS FOLLOWS:
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Cable Television Franchise
TABLE OF CONTENTS
INTRODUCTORY STATEMENT .. ....... ..... ... ... ....... ... ...... ........ ...... ..... ...... ....... ... ... .... 7
SECTION 1. DEFINITIONS.................................................................................... 8
"A A P ." 8
ccess or ccess rogrammlng .................................................................................
"Access Channel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .. 8
"Access Fees" ........................................................ .'................ ................................ 8
"Activation" or "Activated" ........................................................................................ 8
"Affiliated Entity" or "Affiliate" .................................................................................. 8
"Bad Debt" ............................................................................................................ 8
"Basic Service" ....................................................................................................... 9
"B roadcas t Signal" .......................................;........................................................... 9
"Cable Act" ............................................................................................................ 9
"Cable Operator" ........................... ............................... ........................................... 9
"Cable Service" ....................................................................................................... 9
"Cable System" ....................................................................................................... 9
"Channel" .............................................................................................................. 9
"City" ................................................................................................................... 9
"Customer Service Representative" .............................................................................. 9
"Designated Access Provider" .................................................................................... 10
"Downstream Channel" ............................................................................................ 10
"Dwelling Unit" ..................................................................................................... 10
"Expanded Basic Service" ......................................................................................... 10
"FCC" ................................................................................................................. 10
"Fiber Optic" ......................................................................................................... 10
"Franchise" ........................................................................................................... 10
"F ranchise Area" .................................................................................................... 10
"F ranchise Fee" ...................................................................................................... 10
"Grantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . " 11
"Gross Revenues" ................................................................................................... 11
"Headend" or "Hub" ......................................... ................ .......................................11
"Incremental Costs" ................................................................................................. 11
"Institutional Network" ............................................................................................. 11
"Interconnect" or "Interconnection".............................................................................. 11
"Leased Access Channel........................................................................................... 12
"Locally Scheduled Original Programming" ................................................................... 12
"N oncommerc ial" ................................................................................................... 12
"Normal Business Hours" .......................................................................................... 12
"Normal Operating Conditions" .......................................................................... ........12
"Pay Service" or "Premium Service" ............................................................................ 12
"Person" ............................................................................................................... 12
"Qualified I-NET Users" ........................................................................................... 12
"Rights-of-Way" ...................................... ............................................................... 12
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"School" ............................................................................................................... 13
"Service Interruption" .............................................................................................. 13
"State" ................................................................................................................. 13
"Subscriber" or "Customer" .............................. '" ...................................................... 13
"Tier" ........................................... .,.........................;............................................ 13
"V ideo Programming" .............................................................................................. 13
SECTION 2. GRANT OF FRANCHISE.................................................................... 13
2.1 Grant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . .. 13
2.2 Use of Rights-of-Way...................................................................................... 14
2.3 Term.......................................................................................................... 15
2.4 Effective Date................................................... ............................................15
2.5 Franchise Nonexclusive............................................. ......................................15
2.6 Grant of Other Franchises................................................................................ 16
2.7 Familiarity with Franchise................................................................................ 16
2.8 Effect of Acceptance........ .................. ........... ..................................................16
2.9 Police Powers ............................................................................................... 17
2.10 Franchise Area.............................................................................................. 17
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS................................... 17
3.1 Franchise Fee ............................................................................................... 17
3.2 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .. 17
3.3 Acceptance of Payment......................................... ...........................................17
3.4 Quarterly Franchise Fee Reports........................................................................ 17
3.5 Audits......................................................................................................... 18
3.6 Financial Records........................................................................................... 18
3.7 Interest on Late Payments................................................................................. 18
3.8 Maximum Franchise Fee.................................................................................. 18
3.9 Additional Commitments Not Franchise Fees......................................................... 19
3.10 Payment on Termination.................................................................................. 19
3.11 Service Packages............................................................................................ 19
3.12 Additional Compensation ................................................................................. 19
3.13 Tax Liability................................................................................................. 19
SECTION 4. ADMINISTRATION AND REGULATION............................................... 19
4.1 Rates and Charges.......................................................................................... 19
4.2 No Rate Discrimination ................................................................................... 20
4.3 Filing of Rates and Charges .............................................................................. 20
4.4 Time Limits Strictly Construed.......................................................................... 20
4.5 Performance Evaluation................................................................................... 20
4.6 Leased Access Channel Rates. ................... ........................................................ 21
4.7 Late Fees..................................................................................................... 21
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS.................................. 21
5.1 Indemnification................ ..... ...... .................................................................. 21
5.2 Insurance Requirements ................................................................................... 22
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5.3 Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6. CUSTOMER SERVICE....................................................................... 25
6.1 Customer Service Standards.............................................................................. 25
6.2 Subscriber Privacy ......................................................................................... 25
6.3 Customer Service Location(s) ............................................................................ 25
6.4 Customer Service Agreement and Manual............................................................. 26
SECTION 7. REPORTS AND RECORDS.................................................................. 26
7.1 Open Records ............................................................................................... 26
7.2 Confidential/Proprietary Informaion .................................................................... 27
7.3 Records Required........................................................................................... 27
7.4 Copies of Federal and State Reports.................................................................... 27
7.5 Complaint File and Reports............................................................................... 28
7.6 Inspection of Facilities and Annual Meeting........................................................... 28
7.7 False Statements ............................................................................................ 28
SECTION 8. PROGRAMMING............................................................................... 28
8.1 Broad Programming Categories.......................................................................... 28
8.2 Deletion of Broad Programming Categories........................................................... 29
8.3 Obscenity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . 29
8.4 Services for the Disabled.................................................................................. 29
8.5 Parental Control Device................................................................................... 29
8.6 Complementary Cable Service ..................... ...................................................... 29
8.7 New Technology............................................................................................ 30
SECTION 9. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS.................... 30
9.1 Access Channels............................................................................................ 30
9.2 Triggers for Additional Access Channels.............................................................. 31
9.3 Management and Control of Access Channels.......... ..............................................31
9.4 U nderutilized Access Channels .......................................................................... 31
9.5 Access Channel Identification/Location/Relocation/Bill Insertions................................ 31
9.6 Access Interconnections................................................................................... 32
9.7 Support for Access Capital Costs........................................................................ 32
9.8 Access Channels On Lowest Tier................................................... ....................33
9.9 Technical Quality.............................................. ............. ................................33
9.10 Return Connectivity........................................................................................ 33
9.11 PEG Access Studio Location............................................................................. 34
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION ......................34
10.1 Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . 34
10.2 Location of Facilities ...................................................................................... 35
10.3 Restoration of Rights-of-Way............................................................................ 35
10.4 Maintenance and Workmanship.......................................................................... 36
10.5 Acquisition of Facilities................................................................................... 36
10.6 Reservation of Rights-of-Way. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 36
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10.7 Rights-of-Way Vacation................................................................................... 37
10.8 Removal of Discontinued Facilities..................................................................... 37
10.9 Hazardous Substances ..................................................................................... 38
10.10 Undergrounding of Cable................................................................................ 38
10.11 Codes................... ...................................................................................... 39
10.12 Construction and Use of Poles.......................................................................... 39
10.13 Tree Trimming........ ..................................................................................... 39
10.14 Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . 40
10.15 Stop Work................................................................................................... 40
10.16 Work of Contractors and Subcontractors.............................................................. 40
10.17 GIS Mapping ............................................................................................... 40
SECTION 11. CABLE SYSTEM DESIGN................................................................. 41
SECTION 12. SCRAMBLED CHANNEL and INSTITUTIONAL NETWORK ..................41
12.1 Scrambled Channel...................................................................... ...................41
12.2 Institutional Network...................................................................................... 42
SECTION 13. TECHNICAL STANDARDS.................................................................. 42
13.1 Technical Performance.................................................................................... 42
13.2 Cable System Performance Testing........................................... ..................... .....43
SECTION 14. SERVICE EXTENSION...................................................................... 43
14.1 Service Availability....................................... ..................................................43
SECTION 15. ST ANDBY POWER AND EAS ............................................................ 44
15.1 Standby Power.............................................................................................. 44
15.2 Emergency Alert Capability.............................................................................. 44
SECTION 16. FRANCHISE BREACHES; TERMINATION OF FRANCHISE ..................44
16.1 Procedure for Remedying Franchise Violations ...................................................... 44
16.2 Alternative Remedies ...................................................................................... 46
16.3 Assessment of Liquidated Damages and Letter of Credit........... ............................. .... 46
16.4 Revocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . 48
16.5 Purchase of the Cable System.......................................... ........................... .......49
SECTION 17. FRANCHISE TRANSFER................................................................... 49
17.1 Transfer of Ownership or Control....................................................................... 49
SECTION 18. PROHIBITED PRACTICES, LOCAL EMPLOYMENT EFFORTS AND
NOTICES............................................................................................................ 51
18.1 Preferential or Discriminatory Practices Prohibited.................................................. 51
18.2 Notices....................................................................................................... 51
SECTION 19. MISCELLANEOUS PROVISIONS....................................................... 51
19.1 Cumulative Rights.......................................................................................... 51
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19.2 Costs to be Borne by Grantee............................................................................ 52
19.3 Binding Effect............................................................................................... 52
19.4 Authority to Amend........................................................................................ 52
19.5 Venue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . 52
19.6 Governing Laws............................................................................................ 52
19.7 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . 52
19.8 No Joint Venture........................................................................................... 52
19.9 Waiver........................................................................................................ 52
19.10 Severability.................................................................................................. 53
19.11 Compliance with Federal, State and Local Laws..................................................... 53
19.12 Force Majeure..............................................................:....... .'........................53
)
19.13 Entire Agreement........................................ .......................... .'........................53
19.14 Attorneys' Fees ............................................................................................. 53
19.15 Action of the City or Grantee ........................................ .................................... 53
19.16 Acceptance... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . 53
SECTION 20. SEVERABILITy............................................................................... 54
SECTION 21. EFFECTIVE DATE........................................................................... 54
Acceptance ........................................................................................................... 55
Exhibits:
Exhibit I - Customer Service Standards
Exhibit II - I-Net Maintenance Agreement
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Cable Television Franchise
INTRODUCTORY STATEMENT
CABLE TELEVISION FRANCHISE. This Cable Television Franchise is entered into in
Bremerton, Washington, this 1ST day of June, 2007, by and between the City of
Bremerton, Washington a municipal corporation, hereinafter ("City") and Comcast of
Washington IV, Inc. who is hereinafter known as ("Grantee"). City and Grantee are
sometimes referred to hereinafter collectively as the "parties."
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Cable Television Franchise
SECTION 1. DEFINITIONS
For the purposes of this Franchise and the Exhibits attached hereto the following terms,
phrases, words and their derivations shall have the meanings given herein when indicated with
the text of the Franchise by being capitalized. When not inconsistent with the context, words
used in the present tense include the future, words in the plural include the singular, and
words in the singular include the plural. Words not defined, or those defined, but not
capitalized within the text shall be given their common and ordinary meaning. The word
"shall" is always mandatory and not merely directory.
"Access" or "Access Programming" includes Public Access, Educational Access and
Governmental Access , collectively, and means the availability for Noncommercial use by
various governmental and educational agencies, institutions and organizations, in the
community, including City and its designees, of particular channels on the Cable System to
receive and distribute Video Programming to Subscribers, as permitted under applicable law,
including, but not limited to:
(A) "Public Access" means Access 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 may be programmers on the
Access Channel.
(B) "Educational Access" means Access where Schools are the primary users
having editorial control over programming and services.
(C) "Governmental Access" means Access where governmental institutions or their
designees are the primary users having editorial control over programming and services.
"Access Channel" means any Channel, or portion thereof, designated for Noncommercial
Access purposes or otherwise made available to facilitate Access programming.
"Access Fees" means the Capital Contribution paid to the City by the Grantee in accordance
with section 9.7.
"Activation" or "Activated" means the status of any capacity on or part of the Cable System
wherein the use of that capacity or part thereof may be made available without further
installation of Cable System equipment other than Subscriber premise equipment, whether
hardware or software.
"Affiliated Entity" or "Affiliate" when used in connection with Grantee means any Person who
owns or controls, is owned or controlled by, or is under common ownership or control of
Grantee.
"Bad Debt" means amounts lawfully owed by a Subscriber and accrued as revenues on the
books of Grantee, but not collected after reasonable efforts by Grantee.
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Cable Television Franchise
"Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission
of local television Broadcast Signals and Access programming.
"Broadcast Signal" means a television or radio signal transmitted over the air to a wide
geographic audience, and received by a Cable System off-the-air by antenna, microwave,
satellite dishes or any other means.
"Cable Act" means the Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992, and as amended by the
Telecommunications Act of 1996, and any amendments thereto.
"Cable Operator" means any Person or group of Persons, including Grantee, who provides
Cable Service over the Cable System and directly or through one or more Affiliates owns a
significant interest in such Cable System or who otherwise control(s) or is (are) responsible
for, through any arrangement, the management and operation of the Cable System.
"Cable Service" means the one-way transmission to Subscribers of Video Programming, or
other programming service and Subscriber interaction, if any, that is required for the selection
or use of such Video Programming or other programming service.
"Cable System" means a facility, consisting of a set of closed transmission paths and
associated signal generation, reception and control equipment that is designed to provide Cable
Service that includes Video Programming and that is provided to multiple Subscribers within a
community, but such term does not include (1) a facility that serves only to retransmit the
television signals of one or more television broadcast stations; (2) a facility that serves
Subscribers without using any public right-of-way; (3) a facility of a common carrier that is
subject, in whole or in part, to the provisions of Title II of the federal Communications Act
(47 U.S.C. Section 201 et seq.), except that such facility shall be considered a cable system
(other than for purposes of Section 621(c) (47 U.S.c. Section 541(c)) to the extent such
facility is used in the transmission of Video Programming directly to Subscribers, unless the
extent of such use is solely to provide interactive on-demand services; (4) an open video
system that complies with Section 653 of the Cable Act; or (5) any facilities of any electric
utility used solely for operating its electric utility systems. When used herein, the term "Cable
System" shall mean Grantee's Cable System in the Franchise Area unless the context indicates
otherwise.
"Channel" means a portion of the frequency band capable of carrying a Video Programming
Service or combination of Video Programming Services, whether by analog or digital signal,
on a twenty-four (24) hour per day basis or a portion thereof.
"City" means the City of Bremerton, Washington, a municipal corporation, of the State of
Washington.
"Customer Service Representative" (or "CSR") shall mean any person employed by Grantee to
assist, or provide service to, Customers, whether by answering public telephone lines, writing
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Cable Television Franchise
service or installation orders, answering Customers' questions, receiving and processing
payments, or performing other Customer service-related tasks.
"Designated Access Provider" means the entity or entities designated by the City to manage or
co-manage Public, Educational or Governmental Access Channels and facilities. The City
may be a Designated Access Provider.
"Downstream Channel" means a Channel capable of carrying a transmission from the Headend
to remote points on the Cable System.
"Dwelling Unit" means any building or portion thereof that has independent living facilities,
including provisions for cooking, sanitation and sleeping, and that is designed for residential
occupancy.
"Expanded Basic Service" means cable programming services not included in the Basic Service
and excluding premium or pay-per-view services.
"FCC" means the Federal Communications Commission or its lawful successor.
"Fiber Optic" means a transmission medium of optical fiber cable, along with all associated
electronics and equipment capable of carrying electric lightwave pulses.
"Franchise" means the document in which this definition appears, that is executed between
City and Grantee, containing the specific provisions of the authorization granted and the
contractual and regulatory agreement created hereby.
"Franchise Area" means the area within the jurisdictional boundaries of the City, including
any areas annexed by City during the term of this Franchise.
"Franchise Fee" includes any tax, fee or assessment of any kind imposed by the City on the
Grantee or Subscribers, or both solely because of their status as such. The term Franchise Fee
does not include:
(A) Any tax,' fee or assessment of general applicability (including any such tax, fee,
or assessment on both utilities and Cable Operators or their services, but not including a tax,
fee, or assessment that is unduly discriminatory against Cable Operators or cable Subscribers);
(B) Capital costs that are required by the Franchise to be incurred by the Grantee
for Public, Educational or Governmental Access facilities, including the support required in
Section 9.7.
(C) Requirements or charges incidental to the awarding or enforcing of the
Franchise, including but not limited to, payments for bonds, letters of credit, insurance,
indemnification, penalties or liquidated damages; or
(D) Any fee imposed under Title 17, United States Code.
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Cable Television Franchise
"Grantee" means Comcast of Washington IV, Inc. or its lawful successor, transferee or
assIgnee.
"Gross Revenues" means any and all revenue derived directly or indirectly by Grantee, or by
Grantee's Affiliates from the operation of the Grantee's Cable System to provide Cable
Services in the Franchise Area. Gross Revenues include, by way of illustration and not
limitation, monthly and other fees charged Subscribers for Cable Services including Basic
Service, Expanded Basic Service, any expanded Tiers of Cable Service, other Tiers of Cable
Service, optional Premium Service, pay-per-view and per-program Channels, Cable Service
installation, disconnection, reconnection and change-in-service fees, Leased Access Channel
fees, remote control rental fees, late fees and administrative fees or other consideration
received by the Grantee from programmers for carriage of Cable Services on the Cable System
and recognized as revenue under generally accepted accounting principles (GAAP), revenues
from rentals of converters or other Cable System equipment, advertising sales revenues
(including local, regional and a pro rata share of national advertising carried on the Cable
System in the Franchise Area), revenues from program guides, additional outlet fees, revenue
from the sale or carriage of other Cable Services, and revenues from home shopping. Gross
Revenues shall not include (i) Bad Debt, provided, however, that all or part of any such Bad
Debt that is written off but subsequently collected shall be included in Gross Revenues in the
period collected; or (ii) any taxes on services furnished by the Grantee that are imposed
directly on any Subscriber or user by the State, City or other governmental unit and that are
collected by the Grantee on behalf of said governmental unit; or (iii) the Capital Contributions
as required by Section 9.7 .of this Franchise. The Franchise Fees are not a tax and are
therefore included in Gross Revenues.
"Headend" or "Hub" means any Facility for signal reception and dissemination on a Cable
System, including cable, antennas, wires, satellite dishes, monitors, switchers, modulators,
processors for Broadcast Signals or other signals, and all other related equipment and
Facilities.
"Incremental Costs" means the direct and actual material and labor cost (excluding profit) of
constructing, relocating or placing additional ducts, conduit or related structures by Grantee
for the City, or for the City's use, excluding the costs that Grantee would otherwise incur to
construct, relocate or place ducts, conduit or related structures for the Grantee including, but
not limited to, trenching, pipe bedding, backfilling, compacting, restoring the surface, and
other charges, costs or expenses.
"Institutional Network" means that part of the Cable System facilities or capacity designated
for use by non-residential Subscribers including communications to, from and among
government agencies, Schools, libraries and other public agencies.
"Interconnect" or "Interconnection" means the provision of City Access Channel programming
to a geographically contiguous cable system, including technical, engineering, physical, and
other necessary components to accomplish, complete and adequately maintain such
provlslomng.
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Cable Television Franchise
"Leased Access Channel" means any Channel or portion of a Channel commercially available
for programming in accordance with Section 612 of the Cable Act.
"Locally Scheduled Original Programming" means Public Access, Government Access or
Educational Access programming that is created by the City or their designated access
provider(s) including edited coverage of live programming. Such Locally Scheduled Original
Programming shall not be considered as qualifying as such after three (3) cablecasts (initial,
first repeat and second repeat). Automated Video Programming filler, such as cablecasts of
highways and roads, or video bulletin boards does not constitute Locally Scheduled Original
Programming that qualifies herein.
"Noncommercial" means, in the context of Access Channels, those particular products and
services that are not promoted or sold. This term shall not be interpreted to prohibit an
Access Channel operator or programmer from soliciting and receiving contributions used to
produce and transmit Video Programming on an Access Channel, or from acknowledging a
contribution, in the manner of the Corporation for Public Broadcasting or some similar
manner, subject to applicable law.
"Normal Business Hours" means those hours during which most similar businesses in the
community are open to serve Customers. In all cases, "normal business hours" must include
some evening hours at least one night per week and/or some hours on Saturday.
"Normal Operating Conditions" means those service conditions that are within the control of
the Grantee. Those conditions that are not within the control of the Grantee include, but are
not limited to, natural disasters, civil disturbances, power outages, telephone network outages,
severe or unusual weather conditions, and availability of materials, equipment or labor. Those
conditions that are ordinarily within the control of the Grantee include, but are not limited to,
regular peak or seasonal demand periods and maintenance or upgrade of the Cable System.
"Pay Service" or "Premium Service" means Video Programming or other programming
service choices (such as movie Channels or pay-per-view programs) offered to Subscribers on
a package tier, per-Channel, per-program or per-event basis.
"Person" means any natural person, sole proprietorship, partnership, joint venture,
association, or limited liability entity or corporation, or any other form of entity or
organization.
"Qualified I-NET Users" means (i) the City; (ii) other governmental and public agencies,
libraries and Schools; and (iii) other entities that Grantee and City agree may use the I-NET.
"Rights-of-Way" means land acquired for or dedicated to the public or are hereafter acquired
or dedicated to the public and maintained under public authority, including but not limited to
public streets or roads, highways, avenues, lanes, alleys, bridges, sidewalks and areas behind
sidewalks, easements, and similar public property located within the Franchise Area.
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Cable Television Franchise
"School" means any State accredited K-12 public or private educational institution not
including home schools, prisons or jails (provided that state accredited juvenile schools within
prisons or jails shall be included).
"Service Interruption" means the loss of picture or sound on one or more cable Channels.
"State" means the State of Washington.
"Subscriber" or "Customer" means any Person who lawfully receives Cable Services provided
by Grantee by means of the Cable System with Grantee's express permission. Said permission
may be withdrawn and customer disconnected by Grantee at Grantee's discretion.
"Tier" means a category of Cable Services provided by the Grantee for which a separate rate
is charged.
"Video Programming" means programming provided by, or generally considered comparable
to programming provided by, a television broadcast station, or cable programming provider.
SECTION 2. GRANT OF FRANCHISE
2.1 Grant
(A) City hereby grants to Grantee a nonexclusive authorization to make reasonable
and lawful use of the Rights-of-Way within the Franchise Area to construct, operate, maintain,
reconstruct, repair and upgrade the Cable System for the purpose of providing Cable Services,
subject to the terms and conditions set forth in this Franchise and applicable law. This
Franchise shall constitute both a right and an obligation to fulfill the obligations set forth in,
the provisions of this Franchise.
(B) The Grantee, through this Franchise, is granted the right to operate its Cable
System using the public Rights-of-Way within the Franchise Area in compliance with Title 11
of the Bremerton Municipal Code, as may be amended periodically, and all lawfully enacted
applicable construction codes and regulations. The Grantee specifically agrees to comply with
the provisions of City ordinances provided that in the event of a conflict between the
provisions of ordinances and the Franchise, the express provisions of the Franchise shall
govern. Subject to federal and State preemption, the material terms and conditions contained
in this Franchise may not be unilaterally altered by the City through subsequent amendment to
any ordinance, rule, regulation, resolution, or other enactment of City, except in the lawful
exercise of City's police power. Grantee acknowledges that the City may modify its generally
applicable regulatory policies by lawful exercise of the City's police powers throughout the
term of this Franchise. Grantee agrees to comply with such lawful modifications unless there
is a conflict with Grantee's negotiated rights hereunder. Grantee reserves all rights it may
have to challenge such lawful modifications whether arising in contract or at law. The City
reserves all of its rights and defenses to such challenges whether arising in contract or at law.
(C) This Franchise shall not be interpreted to prevent the City from imposing other
conditions, to the extent permitted by law.
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Cable Television Franchise
(D) Grantee agrees, as a condition of exercising the privileges granted by this
Franchise, that any Affiliate of the Grantee that is a Cable Operator of the Cable System in the
Franchise Area, as defined herein, or directly involved in the management or operation of the
Cable System in the Franchise Area, will comply with the terms and conditions of this
Franchise.
(E) No rights shall pass to Grantee by implication. Without limiting the foregoing,
by way of example and not limitation, this Franchise shall not include or be a substitute for:
(1) Any other permit or authorization required for the privilege of
transacting and carrying on a business within the City that may be required by the ordinances
and laws of the City.
(2) Any permit, agreement or authorization required by the City for Rights-
of-Way users in connection with operations on or in Rights-of-Way or public property; or
(3) Any permits or agreements for occupying any other property of the City
or private entities to which access is not specifically granted by this Franchise.
(F) This Franchise is intended to convey limited rights and interests only as to those
Rights-of-Ways in which the City has an actual interest. It is not a warranty of title or interest
in any Rights-of-Way; it does not provide the Grantee with any interest in any particular
location within the Rights-of-Way; and it does not confer rights other than as expressly
provided in the grant hereof.
(G) This Franchise is an express authorization to provide Cable Services only. This
Franchise is not a bar to the imposition of any lawful conditions on Grantee with respect to
non-Cable Services, telecommunications services or information services, whether similar,
different or the same as the condition specified herein. This Franchise does not relieve
Grantee of any obligation it may have to obtain from the City an authorization to provide non-
Cable Services, telecommunications services or information services or relieve Grantee of its
obligation to comply with any such authorization(s) that may be lawfully required.
2.2 Use of Rights-of-Way
(A) Grantee may erect, install, construct, repair, replace, reconstruct, and retain in,
on, over, under, upon, across, through, below and along the Rights-of-Way within the
Franchise Area, such wires, cables (both coaxial and Fiber Optic), conductors, ducts, conduit,
vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and
equipment as are necessary and appurtenant to the operation of a Cable System for the
provision of Cable Service within the Franchise Area. Grantee shall comply with all lawfully
enacted and applicable construction codes, laws, ordinances, regulations and procedures
regarding placement and installation of Cable System facilities in the Rights-of Way.
(B) Grantee must follow City-established requirements, including Title 11 of the
Bremerton Municipal Code, as may be amended periodically, as well as all other City codes,
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Cable Television Franchise
ordinances and other regulations regarding placement of Cable System facilities in Rights-of-
Way, including the specific location of facilities in the Rights-of-Way. The Grantee must in
any event install Cable System facilities in a manner that minimizes interference with the use
of the Rights-of-Way by others, including others that may be installing communications
facilities. To protect public health, safety and welfare, the City may require that Cable System
facilities be installed at a particular time, at a specific place or in a particular manner as a
condition of access to a particular Rights-of-Way; may deny access if Grantee is not willing to
comply with City's requirements; and may remove, or require removal of, any facility that is
not installed in compliance with the requirements established by City, or that is installed
without prior City approval of the time, place or manner of installation and charge Grantee for
all the costs associated with removal; and City may require Grantee to cooperate with others
to minimize adverse impacts on the Rights-of-Way through joint trenching and other
arrangements. Grantee shall assume its costs (in accordance with applicable law) associated
with any requirement of City in the exercise of its police powers, to relocate its Cable System
facilities located in the Rights-of-Way.
2.3 Term
This Franchise shall have a term of five (5) years, effective on June 1,2007 and terminating on
May 30,2012; then at any time during the three (3) year franchise renewal period, this Franchise
may be extended by mutual agreement of the parties for five (5) additional years to May 30,
2017.
2.4 Effective Date
(A) This Franchise and the rights, privileges, and authority granted hereunder and
the contractual relationship established hereby shall take effect and be in force from and after
the effective date of this Franchise as specified in this Section and for the duration of the term
as specified in Section 2.3.
(B) The effective date of this Franchise shall be five business days after its
adoption.
(C) The grant of this Franchise shall have no effect on any ordinance in effect prior
to the effective date of this Franchise to indemnify or insure the City against acts and
omissions occurring during the period that the prior Franchise was in effect, nor shall it have
any affect upon liability to pay all Franchise Fees (for any prior years) that were due and owed
under a prior franchise and the franchise ordinance.
2.5 Franchise Nonexclusive
This Franchise shall be nonexclusive, and subject to all prior rights, interests, easements, or
franchises granted by City or its predecessors to any Person to use any property, Right -of-
Way, easement, including the right of City to use same for any purpose it lawfully deems fit,
including the same or similar purposes allowed Grantee hereunder. City may at any time
grant authorization to use the Rights-of-Way for any purpose not incompatible with Grantee's
authority under this Franchise and for such additional franchises for Cable Systems, as City
deems appropriate.
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Cable Television Franchise
2.6 Grant of Other Franchises
2.6.1. The Grantee acknowledges and agrees that the City reserves the right to grant
one or more additional franchises to provide Cable Service within the Franchise Area;
provided, however, that no such franchise agreement shall contain terms or conditions
substantially more favorable or less burdensome to the competitive entity than the material
terms and conditions herein, including, but not limited to: franchise fees; insurance; system
build-out requirements; security instruments; public, education and government access
channels and support; customer service standards; required reports and related record keeping;
and notice and opportunity to cure breaches. If any such additional or competitive franchise is
granted by the City which, in the reasonable opinion of the Grantee, contains more favorable
or less burdensome terms or conditions than this Franchise, the City agrees that it shall amend
this Franchise to include any more favorable or less burdensome terms or conditions in a
manner mutually agreed upon by City and Grantee.
2.6.2. In the event an application for a new cable television franchise is filed with the
City proposing to serve the Franchising Area, in whole or in part, the City shall serve or
require to be served a copy of such application upon any existing Grantee or incumbent cable
operator by registered or certified mail or via nationally recognized overnight courier service.
2.6.3. In the event that a wireline multichannel video programming distributor
provides service to the residents of the City under the authority granted by Federal or State
legislation or other regulatory entity, the Grantee shall have a right to request Franchise
amendments that relieve the Grantee of regulatory burdens that create a competitive
disadvantage to the Grantee. In requesting amendments, the Grantee shall file a petition
seeking to amend the Franchise. Such petitions shall: (1) indicate the presence of a wireline
competitor operating without a local franchise; (2) identify the basis for Grantee's belief that
certain provisions of the Franchise place Grantee at a competitive disadvantage; and (3)
identify the regulatory burdens to be amended or repealed in order to eliminate the competitive
disadvantage. The City shall nO,t unreasonably withhold consent to the Grantee's petition.
2.7 Familiarity with Franchise
The Grantee acknowledges and warrants by acceptance of the rights, privileges and agreement
granted herein, that it has carefully read and fully comprehends the terms and conditions of
this Franchise and is willing to and does accept all reasonable risks of the meaning of the
provisions, terms and conditions herein. The Grantee further acknowledges and states that it
has fully studied and considered the requirements and provisions of this Franchise, and finds
that the same are commercially practicable at this time and consistent with all local, State and
federal laws and regulations currently in effect, including the Cable Act.
2.8 Effect of Acceptance
By accepting the Franchise, the Grantee: (1) acknowledges and accepts the City's legal right
to issue and enforce the Franchise; (2) agrees that it will not oppose the City's intervening to
the extent it is legally entitled to do so in any legal or regulatory proceeding affecting the
Cable System; (3) accepts and agrees to comply with each and every provision of this
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Cable Television Franchise
Franchise subject to applicable law; and (4) agrees that the Franchise was granted pursuant to
processes and procedures consistent with applicable law, and that it will not raise any claim to
the contrary.
2.9 Police Powers
Grantee's rights hereunder are subject to the police powers of City to adopt and enforce
ordinances necessary to the safety, health and welfare of the public, and Grantee agrees to
comply with all applicable laws, ordinances and regulations lawfully enacted pursuant to the
police powers of City, or hereafter enacted in accordance therewith, by City or any other
legally constituted governmental unit having lawful jurisdiction over the subject matter hereof.
The City reserves the right to exercise its police powers, notwithstanding anything in this
Franchise to the contrary.
2.10 Franchise Area
Grantee shall provide Cable Services, as authorized under this Franchise, within the Franchise
Area in accordance with line extension and density provisions as provided herein.
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS
3.1 Franchise Fee
As compensation for the use of City's Rights-of-Way, Grantee shall pay as a Franchise Fee to
City, throughout the duration of this Franchise, an amount equal to three and one half percent
(3.5 %) of Grantee's Gross Revenues. Accrual of such Franchise Fee shall commence as of
the effective date of this Franchise.
3.2 Payments
Grantee's Franchise Fee payments to City shall be computed quarterly for the preceding
calendar quarter ending March 31, June 30, September 30, and December 31. Each quarterly
payment shall be due and payable no later than forty five (45) days after said dates.
3.3 Acceptance of Payment
No acceptance of any payment shall be construed as an accord by City that the amount paid is,
in fact, the correct amount, nor shall any acceptance of payments be construed as a release of
any claim City may have for further or additional sums payable or for the performance of any
other obligation of Grantee. The period of limitation for recovery of Franchise Fees payable
hereunder shall be six (6) years from the date on which payment by the Grantee was due or
such shorter period of time if so provided by law.
3.4 Quarterly Franchise Fee Reports
Each payment shall be accompanied by a written report to City on a form commonly used by
Grantee, verified by an officer of Grantee, containing an accurate statement in summarized
form, of Grantee's Gross Revenues and the computation of the payment amount. Such reports
shall include all Gross Revenues of the Cable System.
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Cable Television Franchise
3.5 Audits
On an annual basis, upon thirty (30) days' prior written notice, City shall have the right to
conduct an independent audit of Grantee's financial records necessary to enforce compliance
with this Franchise and to calculate any amounts determined to be payable under this
Franchise. Provided Grantee cooperates in making all relevant records available upon request,
City will in good faith attempt to complete each audit within six (6) months, and the audit
period shall not be any greater than the previous six (6) years or such shorter period of time if
so provided by law. Any additional amounts due to the City as a result of the audit shall be
paid within sixty (60) days following written notice to the Grantee, and Grantee's agreement
that the audit findings are correct, which notice shall include a copy of the audit findings. If a
Franchise Fee underpayment is discovered as the result of an audit, Grantee shall pay, in
addition to the amount due, interest at the maximum allowed rate as provided under State law
calculated from the date the underpayment was originally due until the date the City receives
the payment. If the audit shows that Franchise Fees have been underpaid, by five percent
(5 %) or more in a calendar year, Grantee shall pay the cost of the audit in an amount up to
$7,500 per audited year.
3.6 Financial Records
Grantee agrees to meet with a representative of the City upon request to review Grantee's
methodology of record-keeping, financial reporting, the computing of Franchise Fee
obligations and other procedures, the understanding of which the City deems necessary for
reviewing reports and records that are relevant to the enforcement of this Franchise.
3.7 Interest on Late Payments
In the event any payment is not received within forty-five (45) days from the end of the
scheduled payment period, Grantee shall pay, in addition to the payment or sum due, interest
from the due date at the prime rate as listed in the Wall Street Journal on the date the payment
was due, until the date the City receives the payment.
3.8 Maximum Franchise Fee
The parties acknowledge that, at present, applicable federal law limits City to collection of a
Franchise Fee of five percent (5 %) of Gross Revenues in any twelve (12) month period. In the
event that at any time throughout the term of this Franchise, City is authorized to collect an
amount in excess of five percent (5 %) of Gross Revenues in any twelve (12) month period, the
parties hereby agree to amend the Franchise after written notice to Grantee, and a public
meeting to discuss same provided that all wireline cable systems in the Franchise Area over
which the City has jurisdiction are treated in an equivalent manner. In the event that at any
time throughout the term of this Franchise, City is limited by federal law to collecting an
amount which is less than five percent (5 %) of Gross Revenues in any twelve (12) month
period, Grantee may reduce the Franchise Fee payments to the City in accordance with federal
law and the parties hereby agree to amend the Franchise unless the City would be covered
under grand fathered provisions under federal law to keep the Franchise Fee at 3.5 % of Gross
Revenues.
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Cable Television Franchise
3.9 Additional Commitments Not Franchise Fees
No term or condition in this Franchise shall in any way modify or affect Grantee's obligation
to pay Franchise Fees. Although the total sum of Franchise Fee payments and additional
commitments set forth elsewhere in this Franchise may total more than five percent (5 %) of
Grantee's Gross Revenues in any 12-month period, Grantee agrees that the additional
commitments regarding PEG funding, and Access Channels are excluded from the definition
of Franchise Fees herein and are not Franchise Fees, nor are they to be offset or credited
against any Franchise Fee payments due to City, pursuant to any federal law . Furthermore,
City and Grantee agree that any utility tax, business and occupation tax or similar tax shall be
in addition to any Franchise Fees required herein and there shall be no offset against Franchise
Fees subject to applicable law.
3.10 Payment on Termination
If this Franchise terminates for any reason, the Grantee shall file with the City within one
hundred twenty (120) calendar days of the date of the termination, a financial statement,
certified by an independent certified public accountant, showing the Gross Revenues received
by the Grantee since the end of the previous fiscal year. Within forty five (45) days of the
filing of the certified statement with the City, Grantee shall pay any unpaid amounts as
indicated. If the Grantee fails to satisfy its remaining financial obligations as required in this
Franchise, the City may do so by utilizing the funds available in a Letter of Credit or other
security provided by the Grantee.
3.11 Service Packages
If Grantee offers bundled Cable Services and non-Cable Services to Subscribers, Grantee shall
fairly and reasonably allocate revenue with regard to Cable Services. If a dispute arises
between the parties regarding this matter, the City and Grantee will meet and discuss such
matters in good faith in an attempt to resolve the dispute.
3.12 Additional Compensation
In the event that Franchise Fees are prohibited by any law or regulation, Franchisee shall pay
to the City that amount, if any, which is determined by applicable law.
3.13 Tax Liability
The Franchise Fees shall be in addition to any and all taxes or other levies or assessments
which are now or hereafter required to be paid by businesses by any law of the City, the State
or the United States including, without limitation, sales, use, utility and other taxes, or
business license fees.
SECTION 4. ADMINISTRATION AND REGULATION
City shall be vested with the power and right to administer this Franchise and the
regulations and requirements of applicable law, including the Cable Act, or to delegate that
power and right of administration, or any part thereof, to the extent permitted under federal,
State and local law , to any agent in the sole discretion of the City.
4.1 Rates and Charges
Grantee rates and charges related to or regarding Cable Services shall be subject to regulation
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Cable Television Franchise
by City to the full extent authorized by applicable federal, State and local laws. Customer
billing shall be itemized by service(s) per FCC Regulation 76.309 (B) (ii)(A) and 76.1619 or
as amended. Grantee shall comply with all applicable laws regarding rates for Cable Services
and all applicable laws covering issues of cross subsidization.
4.2 No Rate Discrimination
All Grantee rates and charges shall be published (in the form of a publicly-available rate card),
made available to the public, and shall be non-discriminatory as to all Persons of similar
classes, under similar circumstances and conditions. Grantee shall apply its rates in
accordance with governing law. Nothing herein shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction with
promotional campaigns;
(B) The offering of reasonable discounts to similarly situated Persons;
(C) The offering of rate discounts for either Cable Service generally; or
(D) The offering of bulk discounts for Multiple.Dwelling Units.
(E) The Grantee offers to continue through a voluntary initiative a discount of 30%
from its published rate card rate to Subscribers for Basic Cable Services or the Basic portion
of Expanded Basic as part of their service (provided they are not already receiving a package
discount) who are deemed low income by City standards and aged 65 years or older or
disabled, provided that such individual(s) are the legal owner or lessee/tenant of their Dwelling
Unit.
4.3 Filing of Rates and Charges
(A) Throughout the term of this Franchise, Grantee shall maintain on file with City
a complete schedule of applicable rates and charges for Cable Services provided under this
Franchise. Nothing in this subsection shall be construed to require Grantee to file rates and
charges under temporary reductions or waivers of rates and charges in conjunction with
promotional campaigns.
4.4 Time Limits Strictly Construed
Whenever this Franchise sets forth a time for any act to be performed by Grantee, such time
shall be deemed to be of the essence, and any failure of Grantee to perform within the allotted
time may be considered a breach of this Franchise.
4.5 Performance Evaluation
(A) Special evaluation. sessions may be held at any time upon request by City during
the term of this Franchise following Grantee's repeated failure to comply with the terms of this
Franchise.
(B) All evaluation sessions shall be open to the public and announced at least one
week in advance in a newspaper of general circulation in the Franchise Area.
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Cable Television Franchise
(C) Topics that may be discussed at any evaluation session may include those issues
surrounding Grantee's failure to comply with the terms of the Franchise provided that nothing
in this subsection shall be construed as requiring the renegotiation of this Franchise or any
term or provision therein and further provided that this subsection need not be followed before
other legal or equitable remedies within this Franchise.
4.6 Leased Access Channel Rates
Upon request, Grantee shall provide a complete schedule of current rates and charges for any
and all Leased Access Channels, or portions of such Channels, provided by Grantee.
4.7 Late Fees
(A) For purposes of this subsection, any assessment, charge, cost, fee or sum,
however, characterized, that the Grantee imposes upon a Subscriber solely for late payment of
a bill is a late fee and shall be applied in accordance with applicable local, State and federal
laws.
(B) The Grantee's late fee and disconnection policies and practices shall be
nondiscriminatory, and such policies and practices, and any fees imposed pursuant to this
subsection, shall apply equally in all parts of the City without regard to the neighborhood or
income level of the subscribers.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
(A) General Indemnification. Grantee, at its sole cost and expense, shall indemnify,
defend and hold City, its officers, officials, boards, commissions, authorized agents,
representatives, and employees, harmless from any action or claim for injury, damage, loss,
liability, settlement, proceeding, judgment, or cost or expense, including court and appeal
costs and attorneys' fees and expenses, arising from any casualty or accident to Person or
property, including, without limitation, copyright infringement, defamation, and all other
damages in any way arising out of, or by reason of, any construction, excavation, erection,
operation, maintenance, repair or reconstruction, or any other act done under this Franchise,
by or for Grantee, its authorized agents, or by reason of any neglect or omission of Grantee its
authorized agents or its employees. Grantee shall consult and cooperate with the City while
conducting its defense of the City.
(B) Indemnification for Relocation. Subject to applicable law, Grantee shall
indemnify City for any damages, payable by City related to, arising solely out of or resulting
solely from Grantee's failure to properly install, remove, adjust or relocate any of its facilities
in the streets in accordance with any lawful relocation required by City.
(C) Additional Circumstances. Grantee shall also indemnify, defend and hold City
harmless for any claim for injury, damage, loss, liability, cost and expense, including court
and appeal costs and attorneys' fees and expenses in any way arising out of any failure by
Grantee to secure consents from the owners, authorized distributors or Franchiseesllicensors
of programs to be delivered by the Cable System, provided however, that Grantee will not be
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Cable Television Franchise
required to indemnify the City for any claims arising out of the use of Access Channels by the
City and/or its Designated Access Providers or use by the City of the Emergency Alert Cable
System.
(D) Procedures and Defense. If a claim or action arises, City or any other
indemnified party shall tender the defense of the claim or action to Grantee, which defense
shall be at Grantee's expense. City may participate in the defense of a claim and, in any
event, Grantee may not agree to any settlement of claims financially affecting City without
City's written approval that shall not be unreasonably withheld.
(E) Duty of Defense. The fact that Grantee carries out any activities under this
Franchise through independent contractors shall not constitute an avoidance of or defense to
Grantee's duty of defense and indemnification under this Section.
(F) Duty to Give Notice. The City shall give the Grantee timely written notice of
any claim or of the commencement of any action, suit or other proceeding covered by the
indemnity in this Section. In the event any such claim arises, the City or any other
indemnified party shall tender the defense thereof to the Grantee and the Grantee shall have the
obligation and duty to defend any claims arising thereunder, and the City shall cooperate fully
therein.
(G) Separate Representation. If separate representation to fully protect the interests
of both parties is necessary, such as a conflict of interest between the City and the counsel
selected by Grantee to represent the City, Grantee shall select other counsel without conflict of
interest with the City.
(H) The grant of this Franchise shall have no effect on the Grantee's duty under the
prior franchises to indemnify or insure the City against acts and omissions occurring during
the period that the prior franchises were in effect, nor shall it have any effect upon Grantee's
liability to pay all Franchise Fees which were due and owed under prior franchises.
5.2 Insurance Requirements
(A) General Requirement. Grantee shall maintain in full force and effect at its own
cost and expense each of the following policies of insurance:
(1) Commercial General Liability coverage for bodily injury, personal
injury, and property damage with limits of no less than two million dollars ($2,000,000) per
occurrence. The general aggregate limit shall be no less than five million dollars
($5,000,000). Such insurance shall name the City, the City's officers, officials, boards,
commissions, agents, representatives, volunteers and employees as additional insureds.
(2) Commercial Automobile Liability Insurance with minimum combined
single limits of at least two million dollars ($2,000,000) each occurrence and five million
dollars ($5,000,000) aggregate with respect to each of Grantee's owned, hired and non-owned,
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Cable Television Franchise
or any other vehicles assigned to or used in any activities authorized under or used in
conjunction with this Franchise.
(3) Employer's Liability with limits of at least one million dollars
($1,000,000).
(4) Workers' Compensation insurance shall be maintained during the life of
this Franchise to comply with State law for all employees.
(B) Each policy shall provide that the insurance shall not be canceled or terminated
so as to be out of compliance with these requirements without forty-five (45) days' written
notice first provided to the City via mail, and ten (10) days notice for nonpayment of any
premium. If the insurance is canceled or terminated so as to be out of compliance with the
requirements of this Franchise, Grantee shall provide a replacement policy. Grantee agrees to
maintain continuous uninterrupted insurance coverage, in at least the amounts required, until
all work required to be performed under the terms of this Franchise is satisfactorily completed
and, in the case of Commercial General Liability Insurance, for at least one (1) year after
expiration of this Franchise. Any failure of Grantee to comply with the claim reporting
provisions of the policy(ies) or any breach of an insurance policy warranty shall not affect
coverage afforded under the policy to protect the City. However, if coverage is not afforded
under these circumstances, Grantee will indemnify City for losses City otherwise would have
been covered for as an additional insured.
All insurance policies, except Workers Compensation, shall contain a waiver of transfer rights
of recovery (subrogation) against City, its officers, officials, agents, and employees for any
claims arising out of Grantee's work or service. Grantee solely shall be responsible for
deductibles and/or self-insured retention, and City, at its option, may require Grantee to secure
the payment of such deductible or self-insured retention by a surety bond or an irrevocable
Letter of Credit.
(C) Endorsements.
(1) All policies shall contain, or shall be endorsed so that:
(a) The City, and the City's officers, officials, boards, commissions,
agents, representatives, and employees are to be covered as, and have the rights of, additional
insured's with respect to liability arising out of activities performed by, or on behalf of,
Grantee under this Franchise or applicable law, or in the construction, operation, upgrade,
maintenance, repair, replacement or ownership of the Cable System;
(b) Grantee's insurance coverage shall be primary insurance with
respect to the City, City Council and the City's officers, officials, boards, commissions,
agents, and employees. Any insurance or self insurance maintained by the City, City Council
and the City's officers, officials, boards, commissions, agents, representatives, volunteers or
employees shall be in excess of the Grantee's insurance and shall not contribute to it, provided
the occurrence arises out of Grantee's negligence; and
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Cable Television Franchise
(c) Grantee's insurance shall apply separately to each insured against
whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's
liability.
(D) Verification of Coverage. The Grantee shall furnish the City with certificates of
insurance and an endorsement reflecting additional insured status. The certificates for each
insurance policy are to be on standard forms or such forms as are consistent with standard
industry practices, and are to be received and approved by the City at the time of acceptance
of this Franchise by Grantee with existing insurance coverage to be maintained by Grantee
until that date. The Grantee hereby warrants that its insurance policies satisfy the
requirements of this Franchise.
5.3 Security
(A) Grantee shall provide a performance bond in the amount of twenty-five
thousand dollars ($25,000) to ensure the faithful performance of its responsibilities under this
Franchise and applicable law, including, by way of example and not limitation, its obligations
to relocate and remove its facilities and to restore City Rights-of-Way and other property.
Grantee may be required to obtain additional bonds, such as generally applicable construction
bonds, in accordance with the City's ordinary practices. The construction bond and
performance bond shall be in a standard industry form. Grantee shall pay all premiums or
costs associated with maintaining the bond(s), and shall keep the same in full force and effect
at all times. Except as expressly provided herein, the Grantee shall not be required to obtain
or maintain other bonds as a condition of being awarded the Franchise or continuing its
existence.
(B) If there is uncured breach by Grantee of a material provision of this Franchise
or pattern of repeated violations of any provision(s) of this Franchise, then the City may
request and Grantee shall establish and provide within thirty (30) days from receiving notice
from the City, to the City as security for the faithful performance by Grantee of all of the
provisions of this Franchise, a letter of credit from a financial institution satisfactory to the
City in the amount of twenty-five thousand dollars ($25,000).
(C) After the giving of notice by the City to Grantee, and expiration of any
applicable cure period, the letter of credit may be drawn upon by the City for purposes that
include, but are not limited to the following:
(1) Failure of Grantee to pay the City sums due under the terms of this
Franchise;
(2) Reimbursement of costs borne by the City to correct Franchise violations
not corrected by Grantee; and
(3) Liquidated damages assessed against Grantee as provided in this
Franchise.
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Cable Television Franchise
(D) The City shall give Grantee written notice of any withdrawal under this
subsection upon such withdrawal. Within ten (10) days following receipt of such notice,
Grantee shall restore the letter of credit to the amount required under this Franchise.
Grantee I s maintenance of the letter of credit shall not be construed to excuse unfaithful
performance by Grantee or limit the liability of Grantee to the amount of the letter of credit or
otherwise limit the City's recourse to any other remedy available at law or in equity.
(E) Grantee agrees to maintain continuous uninterrupted letter of credit and bonds
in the amounts required for the duration of this Franchise or as otherwise specified in this
Franchise.
(F) Grantee shall have the right to appeal to the City Council for reimbursement in
the event Grantee believes that the letter of credit was drawn upon improperly. After a
determination by the City Council, Grantee shall also have the right of judicial appeal if
Grantee believes the letter of credit has not been properly drawn upon in accordance with this
Franchise. Any funds the City erroneously or wrongfully withdraws from the letter of credit
shall be returned to Grantee with interest, from the date of withdrawal at a rate equal to the
prime rate of interest as quoted in the Wall Street Journal.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
Grantee shall comply with Customer Service Standards as provided in FCC Standards 47
C.F.R. Sections 76.309,76.1602, 76.1603 and 76.1619. Additionally, Grantee shall provide
its service under Normal Operating Conditions and comply with Customer Service Standards
and the City Code as they exist on the date of adoption of this Franchise, as are currently
contained in Exhibit I attached hereto and made a part hereof. The Grantee shall not enter into
a contract with any Subscriber that is in any way inconsistent with the terms of this Franchise,
or the requirements of any applicable Customer Service Standards.
6.2 Subscriber Privacy
Grantee shall comply with privacy rights of Subscribers in accordance with applicable law.
6.3 Customer Service Location(s)
For a period of two (2) years, the Grantee must maintain, at a minimum, one (1) Customer
service location as prescribed herein conveniently located within three (3) miles of the City
that will be open during Normal Business Hours, to provide Subscribers the opportunity to
pick up (certain types of equipment depending upon size and subject to storage availability on
site) and return Subscriber equipment and to make bill payments. Sixty (60) days prior to any
closure of such Customer Service location, the City and the Grantee agree to meet to discuss
any prospective closure. In addition, Grantee shall at all times maintain a Customer support
center where Customers may access information related to services and products, make bill
payments or "speak" with a Customer Service Representative. Grantee is encouraged to
provide a website.
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Cable Television Franchise
6.4 Customer Service Agreement and Manual
(A) Grantee shall provide to Subscribers an accurate, comprehensive service
agreement (currently called the work order) and Customer installation packet (currently called
the Install Package) for use in establishing Subscriber service. This material shall, at a
minimum, contain the following:
(1) Grantee's procedure for investigation and resolution of Subscriber
service complaints.
(2) Services to be provided and rates for such services.
(3) Billing procedures.
(4) Service termination procedure.
(5) A description of the manner that will be used to provide notice of
changes in rates, service or service terms and conditions.
(6) A complete statement of the Subscriber's right to privacy.
(7) Equipment policy.
(8) The name, address and phone number of the Customer care department
that is responsible for handling cable questions and complaints for the Grantee.
(B) A copy of the installation packet shall be available to each Subscriber at the
time of initial installation and any reconnection or Cable Service upgrade requiring a home
visit by the Grantee (excluding reconnections to the same Subscriber within twelve (12)
months), and at any time the packet is requested by the Subscriber. Within thirty (30) days
following material policy changes, information regarding the changes will be provided to
Subscribers.
SECTION 7. REPORTS AND RECORDS
7.1 Open Records
7.1.1. Books and Records. Throughout the term of this Franchise, the Grantee agrees
that the City, upon reasonable prior written notice to the Grantee, may review such of the
Grantee's books and records regarding the operation of the Cable System and the provision of
Cable Service in the Franchise Area which are reasonably necessary to monitor Grantee's
compliance with the provisions of this Franchise at the Grantee's business office, during
normal business hours, and without unreasonably interfering with Grantee's business
operations. Such books and records shall include any records required to be kept in a public
file by the Grantee pursuant to the rules and regulations of the FCC. All such documents
pertaining to financial matters that may be the subject of an inspection by the City shall be
retained by the Grantee for a minimum period of five (5) years.
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Cable Television Franchise
7.1.2. File for Public Inspection. Throughout the term of this Franchise, the Grantee
shall maintain at its business office, in a file available for public inspection during normal
business hours, those documents required pursuant to the FCC's rules and regulations.
7.2 Confidential/Proprietary Information. Not withstanding anything to the contrary set
forth in this Section, the Grantee shall not be required to disclose information that it
reasonably deems to be proprietary or confidential in nature. That said, Grantee does agree to
provide all information reasonably required to verify compliance with the material terms of the
Franchise. City agrees to keep confidential any proprietary or confidential books or records to
the extent permitted by law. Grantee shall be responsible for clearly and conspicuously
identifying the work confidential or proprietary, and shall provide a brief written explanation
as to why such information is confidential and how it may be treated as such under State or
federal law. If City receives a demand from any Person for disclosure of any information
designated by Grantee as confidential, City shall, so far as consistent with applicable law,
advise Grantee and provide Grantee with a copy of any written request by the party demanding
access to such information within a reasonable time.
7.3 Records Required
Grantee shall at all times maintain:
(A) Access to a full and complete set of plans, records and "route" maps showing
the location of all Cable System equipment installed or in use in the Rights-of-Way, that are
generated in Grantee's normal course of business;
(B) A copy of all FCC filings on behalf of Grantee, its parent corporations or
Affiliates that relate to the operation of the Cable System in the Franchise Area;
(C) A list of Grantee's Cable Services, rates and Channel line-ups;
(D) A compilation of Subscriber complaints, actions taken and resolution, and a log
of service calls.
(E) Financial records as referred to in Section 3.
7.4 Copies of Federal and State Reports
Upon written request, Grantee shall submit to City copies of any pleading, applications,
notifications, communications and documents of any kind, submitted by Grantee or its
Affiliates to any federal, State or local courts, regulatory agencies and other government
bodies if such documents directly relate to the operations of Grantee's Cable System within the
Franchise Area. Grantee shall submit such documents to City no later than thirty (30) days
after receipt of City's request. Grantee shall not claim confidential, privileged or proprietary
rights to such documents unless under federal, State, or local law such documents have been
determined to be confidential by a court of competent jurisdiction, or a federal or State
agency. With respect to all other reports, documents and notifications provided to any federal,
State or local regulatory agency as a routine matter in the due course of operating Grantee's
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Cable Television Franchise
Cable System within the Franchise Area, Grantee shall make such documents available to City
upon City's written request.
7.5 Complaint File and Reports
Grantee shall keep an accurate and comprehensive compilation of any and all Customer
complaints received and Grantee's actions in response to those complaints, in a manner
consistent with the privacy rights of Subscribers. Grantee shall provide an executive summary
report to the City on an annual basis within ninety (90) days of the end of each year that shall
include the following information:
(A) Nature and type of Customer complaints;
(B) Average response time for service calls;
(C) Phone activity report;
(D) A summary of the previous year's activities regarding the development of the
Cable System, including, beginning and ending plant miles constructed, any technological
changes occurring in the Cable System and the number of subscribers for each class of Cable
Service (i.e., Basic, Expanded Basic Service, premium, etc.);
7.6 Inspection of Facilities and Annual Meeting
City may inspect any of Grantee's facilities and equipment located in the Rights-of-Way or on
other public property at any reasonable time during business hours upon at least twenty-four
(24) hours notice, or, in case of emergency, upon demand without prior notice.
Throughout the term of the Franchise, Grantee shall meet with the City on an annual basis
upon fifteen (15) days prior written notice from City. Matters to be discussed include, but are
not limited to Customer service, Cable System performance, technical issues and other matters
related to Grantee's operation of the Cable System.
7.7 False Statements
Any intentional false or misleading statement or representation in any report required by this
Franchise shall be a material breach of this Franchise and may subject Grantee to all remedies,
legal or equitable, that are available to City under this Franchise.
SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide at least the following initial broad categories of programming to the
extent such categories are reasonably available.
(A) Educational programming;
(B) News, weather and information;
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Cable Television Franchise
(C) Sports;
(D) General entertainment including movies;
(E) Foreign language programming.
8.2 Deletion of Broad Programming Categories
(A) Grantee shall not delete or so limit as to effectively delete any broad category of
programming within its control without prior written notice to the City.
(B) In the event of a modification proceeding under federal law , the mix and quality
of Cable Services provided by Grantee shall follow the guidelines of Federal law .
8.3 Obscenity
Grantee shall not transmit, or permit to be transmitted, over any Channel subject to its
editorial control any programming which is obscene under applicable federal, State or local
laws.
8.4 Services for the Disabled
Grantee shall comply with the Americans With Disabilities Act and any amendments or
successor legislation thereto.
8.5 Parental Control Device
Upon request by any Subscriber, Grantee shall make available at no charge a parental control
or lockout device, traps or filters to enable a Subscriber to control access to both the audio and
video portions of any Channels. Grantee shall inform its Subscribers of the availability of the
lockout device at the time of their initial subscription and periodically thereafter.
8.6 Complementary Cable Service
The Grantee, upon request, shall provide without charge, a Standard Installation and one outlet
of Basic Service to those City buildings now existing, acquired or hereafter constructed
provided that the buildings are either owned and occupied or leased and occupied by the City,
for administrative purposes, fire station(s), police station(s), libraries and School(s) and
provided further that they are already served or are within 125 aerial service feet or 60
underground trench feet (a Standard Installation) of its Cable System, excluding those
buildings or portions of buildings that house or occupy prison/jail populations. The Cable
Service described herein is a voluntary initiative that Grantee offers to continue throughout the
term of this Franchise. The Cable Service provided shall not be distributed beyond the
originally installed outlet without authorization from Grantee. In the case of leased facilities,
the recipient of service is responsible for securing approval for appropriate right of entry
suitable to the Grantee in its reasonable discretion. The Cable Service provided shall not be
used for commercial purposes and the City shall take reasonable steps to limit display in public
areas to the City Access Channels. The City shall take reasonable precautions to prevent any
use of the Grantee's Cable System in any manner that results in the inappropriate use thereof
or any loss or damage to the Cable System. To the extent not inconsistent with other
provisions in this Franchise, the City shall hold the Grantee harmless from any and all liability
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Cable Television Franchise
or claims arising out of the use of Cable Service at City facilities and other facilities identified
in this Section. For new hookups, the Grantee shall not provide an outlet to such buildings
where a non-Standard Installation is required, unless the City or building owner/occupant
agrees to pay the cost of any necessary Cable System extension and non-Standard Installation.
If additional outlets of Cable Service are provided to such buildings beyond those required
herein, there shall not be any monthly service fees associated therewith.
8.7 New Technology
(A) If there is a new technology, Cable Service program offering, programming
delivery method or other such new development that Grantee in its sole discretion decides to
beta test or trial on a limited basis in the marketplace, and such a test or trial is suited to the
size and demographics of the City, Grantee shall be allowed by City to conduct the trial or
beta test in the City so long as such a test is technically feasible.
(B) If there is a new technology that in City's opinion would enhance substantially
the quality or quantity of programming available to Subscribers on the Cable System, Grantee
shall, at the request of the City, investigate the feasibility of implementing said technology and
report to City the results of such investigation within ninety (90) days from the date of such
request.
SECTION 9. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
9.1 Access Channels
At all times during the term of this Franchise, Grantee shall provide, as part of the Basic
Service package, at no charge, the following Access Channels:
One (1) Channel for Governmental and other Access Programming; and
One (1) Channel for the Scrambled Channel.
Additionally, Grantee shall make available at no charge one (1) additional Channel to
be triggered for PEG programming in accordance with Section 9.2 herein. It is further agreed
that any Access Channel that has Governmental Programming may also be utilized for public
access programmmg.
In addition, Grantee shall endeavor to carry regional educational Channels in the City.
In the event Grantee makes any change in the Cable System and related equipment and
facilities or in signal delivery technology, which change directly or indirectly affects the signal
quality or transmission of any Access Channel programming or services, the Grantee shall, at
its own expense, take necessary technical steps, acquire new equipment so that the Access
facilities and equipment may be used as intended to ensure that delivery of Access Video
Programming signals is not diminished or adversely affected, including, among other things,
so that live and taped programming can be cablecast with as good or better signal quality than
existed prior to such change. For example, these provisions shall apply if Basic Service on the
Cable System is converted from an analog to a digital format, such that the Access Channels
must also be converted to digital in order to be received by Subscribers.
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Cable Television Franchise
9.2 Triggers for Additional Access Channel
Pursuant to Section 9.1 (Access Channels), the City may require Grantee to make available an
additional activated Downstream Channel when the Access Channels required by Section 9.1
are used for Locally Scheduled Original Programming (excluding character generated and
filler programming, e.g. video bulletin board, NASA, AM/FM Radio Programming) at least
forty eight (48) hours per week eighty percent (80%) of the time between 10:00 A.M. and
10:00 P.M., Monday through Friday during any consecutive ten (10) week period, and then
Grantee shall make available, upon written request within six (6) months one additional Access
Channel for Access Programming purposes. Therefore, an average of 3.2 hours of non-replay
original programming per day on a five day per week basis for a ten (10) consecutive week
period is required to trigger use of an additional Access Channel. The programming of an
additional Access Channel required herein must contain distinct and non-repetitive
programming of the other Access Channel.
9.3 Management and Control of Access Channels
(A) City may authorize Designated Access Providers to control, operate, and
manage the use of any and all Access facilities provided by Grantee under this Franchise,
including, without limitation, the operation of Access Channels. The City or its designee may
formulate rules for the operation of the Access Channels, consistent with this Franchise, the
FCC, federal and State law. Nothing herein shall prohibit the City from authorizing itself to
be a Designated Access Provider.
(B) Grantee shall cooperate with City and Designated Access Providers in the use of
the Cable System and Access facilities for the provision of Access Channels.
9.4 Underutilized Access Channels
Grantee and the City agree that it is their mutual goal to fully and efficiently use the Channel
capacity of the Cable System, which may include allowing the Grantee to use underutilized
Access Channels. If Grantee believes that any Access Channel is underutilized, Grantee may
file a request with the City to use that Access Channel. The City shall in its sole and absolute
discretion render a decision regarding the matter within sixty (60) days of receiving the
request. Should the City find that the Access Channel may be used by the Grantee, then
Grantee may begin using such Channel ninety (90) days after receipt of the decision.
9.5 Access Channel Identification/Location/Relocation/BilI Insertions
Grantee will use reasonable efforts to minimize the movement of Access Channel assignments.
Grantee shall provide to the City a minimum of sixty (60) days notice, and use its best efforts
to provide ninety (90) days notice, prior to any relocation of its Access Channels, unless the
change is required by federal law , in which case Grantee shall give the City the maximum
notice possible. Any Access Channel that is relocated shall be carried on the Basic or
Expanded Basic Channel line-up. Grantee shall reimburse the City up to three thousand
dollars ($3,000.00) for the necessary cost of replacing printed materials in the event that the
Access Channel is moved.
Grantee, upon request, and when space is available, shall provide the City the opportunity to
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Cable Television Franchise
include two bill insertions per year. The City or Designated Access Providers shall be
responsible for the costs of printing its bill insertions, the cost of inserting the information into
Grantee's bills and for any incremental postage costs. Bill insertions must conform to
Grantee's reasonable mailing requirements. Grantee shall be provided an opportunity to
review and approve all Access bill insertions.
9.6 Access Interconnections
(A) Grantee shall, in accordance with this Franchise, continue throughout the term
of this Franchise to maintain the existing Interconnection with the adjacent cable systems
owned and operated by Grantee or an Affiliate of Grantee. Grantee, at its expense shall take
all necessary technical steps to ensure that downstream transmissions provide an adequate
signal quality in accordance with FCC regulations.
(B) Grantee shall, in accordance with this Franchise, continue throughout the term
of this Franchise to maintain the existing Interconnect with the adjacent cable system not
owned or operated by Grantee or an Affiliate of Grantee.
(C) Nothing in this section alters Grantee's Channel obligations for Access
programming delivered to Subscribers within the Franchise Area.
(D) It is not the Grantee's responsibility to ensure that the signals provided to the
existing Interconnection by another Interconnecting cable system meet industry standards.
(E) City retains the right to contract with other Persons for fiber and lines that are not
paid for or provided by Grantee and Grantee acknowledges and agrees that given the complexity
of the network in the City, there are and may be situations where Grantee's fiber may be used for
transport in addition to other Person's facilities used by the City.
(F) Any equipment and construction costs borne by Grantee in connection with the
obligation to provide for Access Channel Interconnection shall be considered a capital cost.
City agrees that such cost is an "external cost" as such term is used in 47 C.F.R. Section
76.922(0 on the date of this Franchise, and as such, the cost is permitted under federal law
and regulation to be passed through to Subscribers, to the extent and in a manner provided for
in federal regulations governing the same.
9.7 Support for Access Capital Costs
Grantee shall provide an initial Capital Contribution payment to the City of one hundred
fifteen thousand ($115,000), within forty-five (45) days of the effective date of this Franchise
to be used for PEG capital and I-Net capital purposes. Commencing upon thirty (30) days
from the effective date hereof, the Grantee shall begin collecting from Subscribers an amount
of twenty five cents $.25 per Subscriber per month that Grantee shall retain until the amount
retained by Grantee equals the Capital Contribution as defined above (at which time the
Grantee shall remit twenty five cents $.25 per Subscriber per month to the City). The Capital
Contributions may only be applied by the City toward capital expenditures related to PEG
Access, including but not limited to studio, City Council chamber equipment, portable
production equipment, editing, program playback equipment, Access related facilities
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Cable Television Franchise
purchases, renovation or construction, local origination, return feeds, scrambled channel and
for I-NET purposes.
Grantee agrees that at the end of the initialS year term and if the Franchise is extended for an
additional 5 years, Grantee shall provide an additional Capital Contribution matching the
initial Capital Contribution under the same recovery terms and conditions as the initial Capital
Contribution as defined above.
Grantee shall not be responsible for paying the Capital Contributions with respect to gratis or
Bad Debt accounts. The City can inquire as to the status of any such accounts, and the
Grantee agrees to meet with the City, upon request, to discuss such matters as necessary.
The City shall have discretion to allocate the Capital Contributions in accordance with
applicable law, provided that the City submits a summary of capital expenditures from the
Capital Contributions to Grantee within sixty (60) days of the end of each calendar year. After
Grantee has recouped its Capital Contribution(s) payment, the City may, at any time, institute,
reinstitute or waive the requirement of Grantee to make all or part of the twenty five cents
($.25) per Subscriber per month Capital Contribution to City, provided that Grantee is given
sixty (60) days advance written notice.
To the extent the City makes Access capital investments using City funds prior to receiving
necessary Capital Contributions funds, the City is entitled to apply subsequent Capital
Contributions payments from Grantee toward such City capital investments. The City and
Grantee agree that any Capital Contributions shall be referred to on Subscribers' bills as a
"PEG Fee", or language substantially similar thereto. Grantee shall not change such reference
on the Subscribers' bills without the prior written consent of the City, which consent shall not
be unreasonably withheld.
The Capital Contribution payments are not an advance against any Franchise Fee payment and
there shall not be any offset or credit against any such Franchise Fee payment (previously or
hereafter made) due to the Capital Contribution payments from Grantee to the City.
9.8 Access Channels On Lowest Tier
All Access Channels provided to Subscribers under this Franchise shall be included by
Grantee, without limitation, on the Tier of Cable Service as required by the FCC.
9.9 Technical Quality
The Grantee shall maintain all Access channels and Interconnections as required by FCC
standards.
9.10 Return Connectivity
(A) Grantee at its cost and expense shall continue to provide and maintain a local
origination return line from the Norm Dicks Government Center at 345 6th Street, Bremerton,
Washington 98337 to its Headend, throughout the term of this Franchise. Grantee at its cost
and expense shall also continue to provide and maintain a local origination return line}rom
1225 Sylvan Way, Bremerton, Washington 98310 to its Headend, until April 15, 2008.
Within one-hundred twenty (120) days from the date of receipt of the request, or as soon
thereafter otherwise agreed upon by the City and Grantee, Grantee shall construct and
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Cable Television Franchise
thereafter maintain a local origination fiber optic return line from the Kitsap County
Fairgrounds to its Headend. Grantee agrees to provide the fiber optic connectivity at
Grantee's incremental cost, and the City shall provide any underground pathway, and any fiber
placement, including, engineering, labor and materials, required to access the termination site
from Grantee's existing splice location in ROW to the site on the Kitsap County Fairgrounds,
at the City's expense. Upon written request of the City, Grantee shall construct and maintain
additional fiber-optic return connectivity from the City to other locations within the Franchise
Area, for the purpose of delivering Access programming to the City. All return connectivity
engineering and construction costs for additional fiber optic connectivity shall be paid by the
City at a cost mutually agreed to between the City and Grantee prior to beginning
construction, and shall be completed within four (4) months of the year following City's
acceptance of Grantee's estimated cost. Grantee must submit to City, all requested estimates,
prior to March 1'1 of each calendar year, and City must respond, to Grantee, with acceptance
or refusal prior to June 1'1 of each calendar year. City shall be responsible for any of Grantee's
engineering costs associated with a project requested by City, but not accepted for
construction. Grantee may require that a reasonable deposit of the estimated project cost be
paid in advance.
(B) After satisfactory completion of work requested by the City for which the City
is to reimburse the Grantee and upon submission by Grantee of a proper invoice for payment
of the cost reasonably incurred and accompanied by such evidence in support thereof, the City
agrees to make payment for the cost reasonably incurred up to the estimated cost for the work;
provided, however, that all payments shall be subject to adjustment for any amount found
upon audit or otherwise to have been improperly invoiced. All work shall be performed in a
cost -effective manner to minimize the costs to the City.
9.11 PEG Access Studio Location
Grantee shall maintain the current PEG Access studio location at 1225 Sylvan Way,
Bremerton, Washington 98310 until April 15, 2008. Within forty-five (45) days of the
effective date of this Franchise, and in addition to the Capital Contribution provided for in
Section 9.7, Grantee shall pay the City as an additional Capital Contribution payment one-
hundred-fifty-thousand dollars and no cents ($150,000) for the cost of constructing a new PEG
Access studio. The City agrees that this money is to be used solely for the construction costs
associated with the new studio and that 47 C.F.R. ~76.922 permits Grantee to add these costs
to the price of Cable Services and to recoup these costs from Subscribers. In addition, as
permitted in 47 C.F.R. ~76.985, all of these amounts paid by Grantee for the cost of
constructing a new PEG Access studio may be separately stated on Subscriber's bills as a
Government Access capital equipment fee.
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1 Construction
(A) Grantee shall perform all maintenance, construction, repair, upgrade and
reconstruction necessary for the operation of its Cable System in accordance with applicable
laws, regulations, ordinances and provisions of this Franchise. To the extent practicable and
economically feasible, Grantee's construction and location of its facilities shall be of minimal
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Cable Television Franchise
impact to City streets and sidewalks located within the Rights-of-Way. All construction and
maintenance of any and all of Grantee's facilities within Rights-of-Way shall, regardless of
who performs the construction, be and remain Grantee's responsibility.
(B) Prior to beginning any construction, Grantee shall provide City with a
construction schedule for work in the Rights-of-Ways as required by City's permitting
regulations.
(C) Grantee may make excavations in Rights-of-Way for any facility needed for the
maintenance or extension of Grantee's Cable System. Prior to doing such work, Grantee shall
apply for, and obtain, appropriate permits from City, and give appropriate notices to City, and
Grantee shall pay all applicable fees upon issuance of the requisite construction permits by
City to Grantee. As a condition of any permits so issued, City officials may impose such
conditions and regulations as are necessary for the purpose of protecting any structures in such
Rights-of-Way, proper restoration of such Rights-of-Way and structures, protection of the
public and the continuity of pedestrian or vehicular traffic. Whenever it is possible and
reasonably practicable to joint trench or share bores or cuts, Grantee shall work with other
providers, permittees and franchisees so as to reduce so far as possible the number of Rights-
of-Way cuts within the Franchise Area.
(D) In the event that emergency repairs are necessary, Grantee may initiate such
emergency repairs, and shall apply for appropriate permits within forty-eight (48) hours after
discovery of the emergency.
10.2 Location of Facilities
Within three (3) business days, unless otherwise specified in federal, State or local regulations,
after the City or any franchisee or permittee of the City notifies Grantee of a proposed Right-
of-Way excavation, Grantee shall, at Grantee's expense, mark on the surface all of its located
underground facilities within the area of the proposed excavation;
10.3 Restoration of Rights-of-Way
(A) When any opening is made by Grantee in a hard surface pavement in any
Rights-of-Way, Grantee shall promptly refill the opening and restore the surface as required by
. its construction permit.
(B) If Grantee excavates the surface of any Rights-of-Way, Grantee shall be
responsible for restoration in accordance with applicable regulations regarding the Rights-of-
Way and its surface within the area affected by the excavation. City may, after providing
notice to Grantee, and Grantee's failure to respond within the agreed upon time, refill or
repave any opening made by Grantee in the Rights-of- Way, and the expense thereof shall be
paid by Grantee. City may, after providing notice to Grantee, and Grantee's failure to
respond within the agreed upon time, remove and repair any work done by Grantee that, in
the determination of City, does not conform to applicable code. The cost thereof, including
the costs of inspection and supervision shall be paid by Grantee. All of Grantee's work under
this Franchise, and this Section in particular, shall be done in compliance with all laws,
regulations and ordinances of City and State.
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Cable Television Franchise
10.4 Maintenance and Workmanship
(A) Grantee's Cable System shall be constructed and maintained in such manner as
not to interfere with sewers, water pipes or any other property of City, or with any other
pipes, wires, conduits, pedestals, structures or other facilities that may have been laid in
Rights-of- W ay by, or under, City's authority.
(B) Grantee shall provide and use any equipment and appliances necessary to
control and carry Grantee's signals so as to prevent injury to City's property or property
belonging to any Person. Grantee, at its own expense, shall repair, renew, change and
improve its facilities to keep them in safe condition.
(C) The Grantee's transmission and distribution Cable System, wires and
appurtenances shall be located, erected and maintained so as not to endanger or interfere with
the lives of Persons, or to unnecessarily hinder or obstruct the free use of Rights-of-Way, or
other public property.
(D) Grantee will maintain membership in good standing with the Utility's
Underground Location Center, or other similar or successor organization designated to
coordinate underground equipment locations and installations. Grantee shall abide by
Washington State's "Underground Utilities" statutes and will further comply with and adhere
to procedures relating to the one call locator service program.
(E) Grantee shall give reasonable notice to private property owners of construction
work in adjacent Rights-of-Way.
10.5 Acquisition of Facilities
Upon Grantee's acquisition of facilities in any Rights-of-Way, or upon the addition or
annexation to the City of any area in which Grantee owns or operates any facility, such
facilities shall immediately be subject to the terms of this Franchise.
10.6 Reservation of Rights-of-Way
Nothing in this Franchise shall prevent City from constructing any public work or
improvement. If any of Grantee's Cable System interferes with the construction or repair of
any Rights-of-Way or public improvement, including construction, repair or removal of a
sewer or water main, Grantee's Cable System shall be removed or relocated in the area City
shall direct. Any and all such removal or relocation shall be at the expense of Grantee. In the
case of a joint relocation project, Grantee shall be responsible for the cost of relocating its
facilities. All such removal or relocation shall be preceded by sixty (60) days written notice or
such additional time as may be provided by City. Should Grantee fail to remove, adjust or
relocate its facilities by the date established by City's written notice to Grantee, City may
effect such removal, adjustment or relocation, and the expense thereof shall be paid by
Grantee.
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Cable Television Franchise
(A) Movement of Cable System For and By City.
The City may remove or disconnect Grantee's facilities and equipment located in the
Right-of-Way or on any other property of the City in the case of fire, disaster or other
emergency. Except during an emergency, the City shall provide reasonable notice to
Grantee prior to taking such action and shall provide Grantee with the opportunity to
perform such action. Following notice by the City, Grantee shall remove, replace,
relocate, modify or disconnect any of its facilities or equipment within any Right-of-
Way, or on any other property of the City, except that the City shall provide at least
sixty (60) days' written notice of any major capital improvement project that would
require the removal, relocation, replacement, modification or disconnection of
Grantee's facilities or equipment. If the Grantee fails to complete this work within the
time prescribed and to the City's satisfaction, the City may cause such work to be done
and bill the cost of the work to the Grantee. Grantee shall remit payment to City
within thirty (30) days of receipt of an itemized list of those costs.
(B) Movement for Other Permittees.
At the request of any Person holding a valid permit and upon reasonable advance
notice, Grantee shall temporarily raise, lower or remove its wires as necessary to
permit the moving of a building, vehicle, equipment or other item. The cost of such
temporary change must be paid by the permit holder, and Grantee may require the
estimated payment in advance.
10.7 Rights-of-Way Vacation
If any Rights-of-Way or portion thereof used by Grantee is vacated by City during the term of .
this Franchise, unless City specifically reserves to Grantee the right to continue the use of
vacated Rights-of-Way, Grantee shall, without delay or expense to City, remove its facilities
from such Rights-of-Way, and restore, repair or reconstruct the Rights-of-Way where such
removal has occurred. In the event of failure, neglect or refusal of Grantee, after thirty (30)
days' notice by City, to restore, repair or reconstruct such Rights-of-Way, City may do such
work or cause it to be done, and the reasonable cost thereof, as found and declared by City,
shall be paid by Grantee within thirty (30) days of receipt of an invoice and documentation.
10.8 Removal of Discontinued Facilities
Whenever Grantee intends to discontinue using any facility within the Rights-of-Way, Grantee
shall submit to City a complete description of the facility and the date on which Grantee
intends to discontinue using the facility. Grantee may remove the facility or request that City
allow it to remain in place. Notwithstanding Grantee's request that any such facility remain in
place, City may require Grantee to remove the facility from the Rights of Way or modify the
facility to protect the public health, welfare, safety and convenience, or otherwise serve the
public interest. City may require Grantee to perform a combination of modification and
removal of the facility. Grantee shall complete such removal or modification in accordance
with a schedule set by City. Until such time as Grantee removes or modifies the facility as
directed by City, or until the rights to and responsibility for the facility are accepted by
another Person having authority to construct and maintain such facility, Grantee shall be
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Cable Television Franchise
responsible for the facility, as well as maintenance of the Rights-of-Way, in the same manner
and degree as if the facility were in active use, and Grantee shall retain all liability for such
facility. If Grantee abandons its facilities, City may choose to use such facilities for any
purpose whatsoever including, but not limited to, Access Channel purposes.
10.9 Hazardous Substances
(A) Grantee shall comply with all applicable State and federal laws, statutes,
regulations and orders concerning hazardous substances within the Rights-of-Way.
(B) Upon reasonable notice to Grantee, City may inspect Grantee's facilities in
Rights-of-Way to determine if any release of hazardous substances has occurred, or may
occur, from or related to Grantee's Cable System. In removing or modifying Grantee's
facilities as provided in this Franchise, Grantee shall also remove all residue of hazardous
substances related thereto.
10.10 Undergrounding of Cable
(A) Wiring.
(1) Where electric or telephone utility wiring is installed underground at the
time of Cable System construction, or when such wiring is subsequently placed underground,
all Cable System lines, wiring and equipment shall also be placed underground with other
wireline service at no expense to the City. Related Cable System equipment, such as
pedestals, must be placed in accordance with applicable City Code requirements and rules. In ,
areas where both electric and telephone utility wiring are aerial, the Grantee may install aerial
cable, except when a property owner or resident requests underground installation and agrees
to bear the additional cost in excess of aerial installation.
(2) The Grantee shall utilize existing poles and conduit wherever possible.
(3) This Franchise does not grant, give or convey to the Grantee the right or
privilege to install its facilities in any manner on specific utility poles or equipment of the City
or any other Person.
(4) The Grantee and the City recognize that situations may occur in the
future where the City may desire to place its own cable or conduit for Fiber Optic cable in
trenches or bores opened by the Grantee. Therefore, if the Grantee further upgrades its Cable
System, the Grantee shall submit these plans to the City in accordance with the City's
permitting process so that such opportunities may be explored. However, nothing set forth
herein shall obligate the Grantee to slow the progress of any future upgrade of the Cable
System to accommodate the City. In addition, the Grantee agrees to cooperate with the City in
any other construction by the Grantee that involves trenching or boring. If sufficient space is
reasonably available, the Grantee shall allow the City to lay its cable, conduit and Fiber Optic
cable in the Grantee's trenches and bores, provided the City shares in the cost of the trenching
and boring on the same terms and conditions as the Grantee at that time shares the total cost of
trenches and bores. The City shall be responsible for maintaining its respective cable, conduit
and Fiber Optic cable buried in the Grantee's trenches and bores under this paragraph.
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Cable Television Franchb;e
(5) The City shall not be required to obtain easements for the Grantee.
(6) The Grantee may participate with other providers in joint trench projects
to relocate its overhead facilities underground and remove its overhead facilities in areas where
all utilities are being converted to underground facilities.
(B) Repair and Restoration of Property.
If public property is disturbed or damaged by Grantee arising out of or in connection
with the provision of Cable Service, the Grantee shall restore the property to its former
condition. Rights-of-Way or other City property shall be restored in a manner and
within a timeframe approved by the City's Director of Public Works & Utilities or his
or her designee. If restoration of Rights-of-Way or other property of the City is not
satisfactorily performed within a reasonable time, the Director of Public Works &
Utilities may, after prior notice to the Grantee, or without notice where the disturbance
or damage may create a risk to public health, safety or welfare, or cause delay or added
expense to a public project or activity, cause the repairs to be made at the Grantee's
expense and recover the cost of those repairs from the Grantee. Within thirty (30) days
of receipt of an itemized list of those costs, including the costs of labor, materials and
equipment, the Grantee shall issue payment to the City. If suit is brought by City upon
Grantee's failure to pay for repair or restoration, the responsibility for reasonable costs
and expenses of the prevailing party including attorney costs and fees, will be
determined by a court of competent jurisdiction.
10.11 Codes
Grantee shall strictly adhere to all building and zoning codes currently in effect. Grantee shall
arrange its lines, cables and other appurtenances, on both public and private property, in such
a manner as to cause no unreasonable interference with the use of said public or private
property by any Person. In the event of such interference, City may require the removal or
relocation of Grantee's lines, cables and other appurtenances from the property in question.
10.12 Construction and Use of Poles
Whenever feasible, Grantee shall use existing poles when the installation of facilities above-
ground is permitted. In the event Grantee cannot obtain the necessary poles and related
facilities pursuant to a pole attachment agreement, and only in such event, then it shall be
lawful for Grantee to make all needed excavations in the streets for the purpose of placing,
erecting, laying, maintaining, repairing and removing poles, conduits, supports for wires and
conductors, and any other facility needed for the maintenance or extension of Grantee's Cable
System.
10.13 Tree Trimming
Upon obtaining a written permit from City, if such a permit is required, Grantee may prune or
cause to be pruned, using proper pruning practices in accordance with such permit, any tree in
the Rights-of-Way that interferes with the Cable System.
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Cable Television Franchise
10.14 Standards
(A) The Grantee must comply with all federal, State and local safety requirements,
rules, regulations, laws and practices, and employ all necessary devices as required by
applicable law during construction, operation and repair of its Cable System. By way of
illustration and not limitation, the Grantee must comply with the National Electric Code,
National Electrical Safety Code and Occupational Safety and Health Administration (OSHA)
Standards.
(B) All installations of equipment shall be permanent in nature, and shall not
interfere with the travel and use of public places by the public during the construction, repair,
operation or removal thereof, and shall not obstruct or impede traffic.
10.15 Stop Work
On notice from City that any work is being conducted contrary to the provisions of this
Franchise, or in violation of the terms of any applicable permit, laws, regulations, ordinances
or standards, the work may immediately be stopped by City. The stop work order shall:
(A) Be in writing;
(B) Be given to the Person doing the work, or posted on the work site;
(C) Be sent to Grantee by mail at the address given herein;
(D) Indicate the nature of the alleged violation or unsafe condition; and
(E) Establish conditions under which work may be resumed.
10.16 Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be bonded in accordance with local ordinances,
regulations and requirements. Work by contractors and subcontractors shall be subject to the
same restrictions, limitations and conditions as if the work were performed by Grantee.
Grantee shall be responsible for all work performed by its contractors and subcontractors and
others performing work on its behalf, and shall ensure that all such work is performed in
compliance with this Franchise and other applicable law, and shall be jointly and severally
liable for all damages caused by them. It is Grantee's responsibility to ensure that contractors,
subcontractors or other persons performing work on Grantee's behalf are familiar with the
requirements of this Franchise and other applicable laws governing the work performed by
them.
10.17 GIS Mapping
(A) Grantee shall provide the City with records of Grantee's trunk and distribution
facilities within the Franchise Area in a standard geographic information system format (GIS)
format. All updates of the GIS shall be submitted to the City Public Works & Utilities
Department within thirty (30) days upon annual request.
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Cable Television Franchise
SECTION 11. CABLE SYSTEM DESIGN
(A) Prior to the effective date of this Franchise, the Grantee undertook a voluntary
upgrade of its Cable System to a fiber-to-the-node Cable System architecture, with fiber-optic
cable deployed from the Headend to the nodes and tying into a coaxial Cable System already
serving Subscribers. Active and passive devices currently are passing a minimum of 750
MHz, and the Cable System is capable of delivering high quality signals that meet or exceed
FCC technical quality standards regardless of a particular manner in which the signal is
transmitted. Grantee agrees to maintain the Cable System in a manner consistent with, or in
excess of these specifications throughout the term of the Franchise.
(B) Equipment must be installed so that all closed captioned programming received
by the Cable System shall include the closed caption signal so long as the closed caption signal
is provided consistent with FCC standards.
(C) Grantee's construction decisions shall be based solely upon legitimate
engineering decisions and shall not take into consideration the income level of any particular
community within the Franchise Area.
(D) Grantee acknowledges that the minimum Cable System design and performance
requirements set forth in this Franchise are enforceable, to the extent allowed by law.
(E) System Review. The City may hold a hearing to review whether or not the
Cable System and the Cable Services offered by the Grantee are meeting demonstrated
community needs and interests, taking into account the cost of meeting those needs and
interests. The parties recognize that, as of the Effective Date, the City is not permitted to
require the provision of specific Video Programming pursuant to this subsection.
SECTION 12. SCRAMBLED CHANNEL AND INSTITUTIONAL NETWORK
12.1 Scrambled Channel
Within four (4) months from the effective date hereof, or as soon thereafter otherwise agreed
upon by City and Grantee, Grantee shall provide the City with capacity on the digital Tier of
the Cable System in the form of a scrambled, encoded digital Channel as provided herein.
Such scrambled, encoded digital Channel shall be provided at Grantee's expense at Grantee's
Headend and up to and including the termination point at the City's origination site and with
the number of converters described in or referred to herein. Such locations shall be provided
one service drop at City's expense for those sites requiring new service installations. The City
shall be responsible for Grantee's engineering costs associated with an installation design and
cost estimate requested by the City, but not accepted for installation. Additional outlets shall
be at City's expense.
Access to the scrambled, encoded digital Channel will be limited to those locations referred to
herein that contain uniquely coded converters, which must effectively descramble and decode
the signals at the aforementioned referred to locations. Beyond the 18 converters to be
provided at Grantee's expense, additional programmed converters shall be made available to
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Cable Television Franchise
the City, or other institutions authorized by the City, at the advertised retail rate upon the
express written request of the City. The converters themselves shall be digital and the signal
shall be transmitted in digital format, be addressable and scrambled such that residential and
commercial Subscribers will not be able to see, hear or interpret the video or audio. Members
of the public shall not be able to discern the programming provided over the scrambled,
encoded digital Channel.
Programming provided over the scrambled, encoded digital Channel shall originate from the
City and be transported upstream over a Fiber Optic connection to Grantee's Headend for
subsequent connection to the downstream digital Channel.
12.2 Institutional Network.
The City and Grantee covenant and agree that, other than as provided in this Subsection 12.2,
Section I through Section 11 of the I-Net Maintenance Agreement that was finalized as of
December 4,2003 ("I-Net Maintenance Agreement") and is attached hereto and made part hereof
as Exhibit II, shall apply to any and all sites and related information currently listed in Exhibit's
"A" and "B" of the INET Maintenance Agreement and to those sites that may be subsequently
added pursuant to the terms and conditions of this Franchise. Therefore the past tense of the
INET Maintenance Agreement shall be interpreted as present tense for future INET sites.
At any time during the term of the Franchise, the City may request that Grantee provide a cost
estimate for the provision of INET connectivity within the City. If the City elects to do so, then
within ninety (90) days written notice from the City, Grantee shall provide the requested cost
estimate taking into account incremental cost to the extent possible.. If the City elects for Grantee
to do such construction, it will notify Grantee prior to June 1 st of the calendar year so that
Grantee may budget appropriately for work to be completed by April I st of the following year.
Prior to the City giving notice to proceed, the City and Grantee must agree in writing as to the
cost of such work. If such work is requested to be done, the City shall pay Grantee within one
hundred twenty (120) days after completion of such work and acceptance testing that such fiber
construction and operation conforms to accepted industry service and performance standards.
The City shall be responsible for Grantee's engineering costs associated with a project design and
cost estimate requested by the City, but not accepted for construction.
The I-Net is a private communication network governed by this Franchise and I-Net Maintenance
Agreement. The City will use the I-Net solely for noncommercial applications in accordance
therewith and may grant access only to Qualified I-Net Users.
SECTION 13. TECHNICAL STANDARDS
13.1 Technical Performance
The technical performance of the Cable System shall meet or exceed all applicable technical
standards authorized or required by law, including, FCC technical standards, as they may be
amended from time to time, regardless of the transmission technology utilized. The City shall
have the full authority permitted by applicable law to enforce compliance with these technical
standards.
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Cable Television Franchise
13.2 Cable System Performance Testing
(A) Grantee shall, at its expense, perform all tests on its Cable System required by
the FCC (including FCC required test points located within the City) and shall maintain
written records of its test results. Upon request, all FCC required technical performance tests
may be witnessed by representatives of the City. Copies of such test results will be provided
to the City upon request.
(B) All required technical performance or other Cable System tests shall be at the
expense of the Grantee and may be witnessed by representatives of the City. Upon request,
Grantee will notify the City before any required technical proof-of-performance or other
testing occurs.
(C) Grantee shall promptly take such measures as are necessary and diligently
continue the same until completion in order to correct any performance deficiencies fully and
to prevent their recurrence. Grantee's failure to correct deficiencies identified through this
testing process shall be a violation of this Franchise. Sites shall be re-tested within five (5)
days following correction until correction has been confirmed and satisfactory results are
obtained.
SECTION 14. SERVICE EXTENSION
14.1 Service Availability
(A) In general, except as otherwise provided herein, Grantee shall provide a
standard aerial installation of Cable Service within seven (7) days of a request by any Person
within its Franchise Area. For standard underground installations scheduling shall be done
within seven (7) days of a request for service. For purposes of this Section, a request shall be
deemed made on the date of signing a service agreement, receipt of funds by Grantee, receipt
of a written request by Grantee or receipt by Grantee of a verified verbal request. Grantee
shall provide such service:
(1) With no line extension charge except as specifically authorized
elsewhere in this Franchise.
(2) At a non-discriminatory installation charge for a Standard Installation,
consisting of a one hundred twenty five (125) foot aerial drop or sixty (60) foot underground
drop connecting to the exterior demarcation point for Subscribers, with additional charges for
non-standard installations computed according to a non-discriminatory methodology for such
installations.
(3) At non-discriminatory monthly rates for all Subscribers, excepting
commercial Customers, MDU Bulk Customers and other lawful exceptions to uniform pricing.
(B) No Customer shall be refused service arbitrarily. However, for non Standard
Installations of service to Customers, or a density of less than twenty five (25) residences per
5280 aerial cable-bearing strand feet of trunk or distribution cable, or sixty (60) residences per
5280 underground trench feet of trunk or distribution cable, Cable Service may be made
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Cable Television Franchise
available on the basis of a capital contribution in aid of construction, including cost of
material, labor and easements. The Grantee may require that the payment of the capital
contribution in aid of construction be borne by such potential Customers be paid in advance.
(C) The Grantee shall provide Cable Service to Multiple Dwelling Units in
accordance with an agreement with the property owner or owners, this Fra[lchise and all
applicable laws.
SECTION 15. STANDBY POWER AND EAS
15.1 Standby Power
Grantee shall provide standby power generating capacity at the Cable System Headend capable
of providing at least twelve (12) hours of emergency operation. Grantee shall maintain
standby power supplies that will supply back-up power of at least two (2) hours duration
throughout the distribution networks, and four (4) hours duration at all nodes and hubs. In
addition, throughout the term of this Franchise, Grantee shall have a plan in place, along with
all resources necessary for implementing such plan, for dealing with outages of more than two
(2) hours. This outage plan and evidence of requisite implementation resources shall be
presented to the City no later than thirty (30) days following receipt of a request therefore.
15.2 Emergency Alert Capability
(A) In accordance with, and at the time required by, the provisions of FCC
Regulations or other federal or state requirements, as such provisions may from time to time
be amended, Emergency Alert System ("EAS") implementation will be accomplished in
compliance with the Washington State EAS Plan and to be in compliance with or further
Homeland Security requirements or applications.
(B) Grantee shall ensure that the EAS is functioning properly at all times in
accordance with FCC regulations.
SECTION 16. FRANCHISE BREACHES; TERMINATION OF FRANCHISE
16.1 Procedure for Remedying Franchise Violations
(A) If City believes that Grantee has failed to perform any material obligation under
this Franchise or has failed to perform in a timely manner, City shall notify Grantee in
writing, stating with documented specificity, the nature of the alleged default. Grantee shall
have thirty (30) days from the receipt of such notice to:
(1) Respond to City, contesting City's assertion that a default has occurred,
and requesting a hearing in accordance with subsection (B), below;
(2) Cure the default; or
(3) Notify City that Grantee cannot cure the default within the thirty (30)
days, because of the nature of the default. In the event the default cannot be cured within
thirty (30) days, Grantee shall promptly take all reasonable steps t~ cure the default and notify
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Cable Television Franchise
City in writing and in detail as to the exact steps that will be taken and the projected
completion date. Upon five (5) business days' prior written notice, either City or Grantee may
call an informal meeting to discuss the alleged default. In such case, if matters are not
resolved at such meeting, City may set a hearing in accordance with subsection (B) below to
determine whether additional time beyond the thirty (30) days specified above is indeed
needed, and whether Grantee's proposed completion schedule and steps are reasonable.
(B) If Grantee does not cure the alleged default within the cure period stated above,
or by the projected completion date under subsection (A)(3), or denies the default and requests
a hearing in accordance with subsection (A)(1), or City orders a hearing in accordance with
subsection (A)(3), City shall set a public hearing to investigate said issues or the existence of
the alleged default. City shall notify Grantee of the hearing in writing and such hearing shall
take place no less than seven (7) days after Grantee's receipt of notice of the hearing. At the
hearing, Grantee shall be provided an opportunity to be heard, to present and question
witnesses, and to present evidence in its defense. At any such hearing, City shall not
unreasonably limit Grantee's opportunity to make a record that may be reviewed should any
final decision of City be appealed to a court of competent jurisdiction. The determination as to
whether a default or a material breach of this Franchise has occurred shall be within City's
sole discretion, but any such determination shall be subject to appeal to a court of competent
jurisdiction.
(C) If, after the public hearing, City determines that a default still exists, City shall
order Grantee to correct or remedy the default or breach within fourteen (14) days of City
notification or within such other reasonable timeframe as City shall determine. In the event
Grantee does not cure within such time to City's reasonable satisfaction, City may:
(1) Assess and collect monetary damages in accordance with this Franchise;
and
(2) Terminate this Franchise; and
(3) Pursue any other legal or equitable remedy available under this
Franchise or applicable law.
(D) The determination as to whether a violation of this Franchise has occurred
pursuant to this Section herein shall be within the sole discretion of the City or its designee.
Any such determination by City shall be accompanied by a record, to which Grantee's
contribution shall not be limited by City (i.e., City shall hear any interested Persons and shall
allow Grantee an opportunity to be heard, to cross examine witnesses, to present evidence and
to make additions to the hearing record). Any such final determination shall be subject to
appeal to a court of competent jurisdiction. Such appeal to the appropriate Court shall be
taken within thirty (30) days of the issuance of the determination of the City. City shall
receive notice from Grantee of any appeal concurrent with any filing to a court of competent
jurisdiction.
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Cable Television Franchise
16.2 Alternative Remedies
No provision of this Franchise shall be deemed to bar the right of either party 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 right of either party to recover monetary damages, as allowed under applicable law, or to
seek and obtain judicial enforcement of obligations by means of specific performance,
injunctive relief or mandate, or any other remedy at law or in equity.
The City specifically does not, by any provision of this Franchise, waive any right, immunity,
limitation or protection (including complete damage immunity) otherwise available to the City,
its officers, officials, Boards, commissions, agents, or employees under federal, State, or local
law including by example Section 635A of the Cable Act. The Grantee shall not have any
monetary recourse against the City, or its officers, officials, Board, commissions, authorized
agents or employees for any loss, costs, expenses or damages arising out of any provision,
requirement of this Franchise or the enforcement thereof, subject to applicable law.
16.3 Assessment of Liquidated Damages and Letter of Credit
Subject to Section 5.3:
(A) Grantee shall deliver to the City an irrevocable and unconditional Letter of
Credit, in a form and substance acceptable to the City, from a National or State bank subject
to reasonable approval by the City, in the amount of twenty-five thousand dollars
($25,000.00).
(B) The Letter of Credit shall provide that funds will be paid to the City ;and in an
amount for liquidated damages charged pursuant to this Section, in payment for any monies
owed by the Grantee to the City as a result of any material acts or material omissions by the
Grantee pursuant to this Franchise or a pattern of repeated violations of any provisions of this
Franchise.
(C) In addition to the recovery of any monies owed by the Grantee to the City or
damages to the City as a result of any material acts or material omissions by the Grantee
pursuant to the Franchise; the City in its sole discretion may, after notice and opportunity to
cure as provided in Section 16.1, charge to and collect from the Letter of Credit the following
liquidated damages.
(1) For failure to provide data, documents, reports or information or to
cooperate with the City during an application process or Cable System review or as otherwise
provided herein, the Liquidated Damages shall be $150.00 per day for each day, or part
thereof, such failure occurs or continues.
(2) For failure of Grantee to comply with construction, operation or
maintenance standards or the provision of the scrambled Channel as provided in Section 12.1,
the Liquidated Damages shall be $150.00 per day for each day, or part thereof, such failure
occurs or continues.
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Cable Television Franchise
(3) For failure to provide the PEG payments required by this Franchise, and
the implementation and the utilization of the PEG Access Channels, the Liquidated Damages
shall be $150.00 per day for each day, or part thereof, such failure occurs or continues.
(4) For failure to comply with any of the material provisions of this
Franchise or Customer service standards, or other City ordinance for which a liquidated
damages is not otherwise specifically provided pursuant to this paragraph (C), the liquidated
damages shall be $150.00 per day for each day, or part thereof, such failure occurs or
continues.
(D) Each violation of any material provision of this Franchise shall be considered a
separate violation for which separate liquidated damages can be imposed. Any liquidated
damages for any given violation shall be imposed upon Grantee for a maximum of 90 days.
(E) If any subsequent Letter of Credit delivered pursuant thereto expires prior to
twelve (12) months after the expiration of the term of this Franchise, it shall be renewed or
replaced during the term of this Franchise to provide that it will not expire earlier than twelve
(12) months after the expiration of this Franchise. The renewed or replaced Letter of Credit
shall be of the same form and with a bank authorized herein and for the full amount stated in
paragraph (A) of this Section.
(F) The City and the Grantee recognize the delays, expense and unique difficulties
involved in proving in a legal proceeding the actual loss suffered by the City as a result of the
Grantee's breach of this Franchise. Accordingly, instead of requiring such proof, the City and
the Grantee agree that the Grantee shall pay to the City the sums set forth above for each day
that the Grantee shall be in breach of the specific provisions of this Franchise. Such amounts
are agreed by both parties to be a reasonable estimate of the actual damages the City would
suffer in the event of the Grantee's breach of such provisions of this Franchise.
(G) The bond(s) and Letter of Credit referred to in Section 5.3 (A) may be drawn
upon by the City for breach of a material provision after notice and opportunity to cure.
The City shall give Grantee written notice of any intent to withdraw under this
subsection. Within seven (7) days following receipt of such notice, Grantee shall restore the
bond(s) and Letter of Credit to the amount required under this Franchise. Grantee's
maintenance of the bond(s) and Letter of Credit shall not be construed to excuse unfaithful
performance by Grantee or to limit the liability of Grantee to the amount of the bond(s) and
Letter of Credit or otherwise to limit the City's recourse to any other remedy available at law
or in equity.
Grantee shall have the right to appeal to the City Council for reimbursement in the
event Grantee believes that a bond or Letter of Credit was drawn upon improperly. Grantee
shall also have the right of judicial appeal if grantee believes a bond or Letter of Credit has not
been properly drawn upon in accordance with this Franchise. Any funds the City erroneously
or wrongfully withdraws from the bond(s) or Letter of Credit shall be returned to Grantee with
interest from the date of withdrawal.
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Cable Television Franchise
The assessment of liquidated damages does not constitute a waiver'by the City of any
other right or remedy it may have under the Franchise or applicable law, including its right to
recover from Grantee any additional damages, losses, costs and expenses that are incurred by
City by reason of the breach of this Franchise.
Grantee's maintenance of the security required herein or by applicable code shall not be
construed to excuse unfaithful performance by the Grantee of this Franchise; to limit liability
of the Grantee to the amount of the security; or to otherwise limit the City's recourse to any
other remedy available at law.
16.4 Revocation
(A) This Franchise may be revoked and all rights and privileges rescinded if a
material breach of the Franchise is not cured pursuant to Section 16.1, or in the event that:
(1) Grantee attempts to evade any material provision of this Franchise or to
practice any fraud or deceit upon the City or Subscribers;
(2) Grantee makes a material misrepresentation of fact in the negotiation of
this Franchise;
(3) Grantee fails to maintain the required Customer service location within
the City limits as provided in this Franchise in accordance with Section 6.3;
(4) Grantee abandons the Cable System, or terminates the Cable System's
operations;
(5) Grantee fails to restore service to the Cable System after three
consecutive days of an outage or interruption in service; except in the case of an emergency or
during a force majeure occurrence, or when approval of such outage or interruption is
obtained from the City, it being the intent that there shall be continuous operation of the Cable
System ); or
(6) Grantee becomes insolvent, unable or unwilling to pay its debts, or is
adjudged bankrupt, there is an assignment for the benefit of Grantee's creditors, or all or part
of the Grantee's Cable System is sold under an instrument to secure a debt and is not
redeemed by Grantee within thirty (30) days from said sale.
(B) Additionally, this Franchise may be revoked one hundred twenty (120) days
after the appointment of a receiver or trustee to take over and conduct the business of the
Grantee (at the option of the City and subject to applicable law) whether in a receivership,
reorganization, bankruptcy or other action or proceeding, unless directed otherwise by a court
of competent jurisdiction.
(C) If there is a foreclosure or other involuntary sale of the whole or any part of the
plant, property and equipment of Grantee, City may serve notice of revocation on Grantee and
48
Cable Television Franchise
to the purchaser at the sale, and the rights and privileges of Grantee under this Franchise shall
be revoked thirty (30) days after service of such notice, unless:
(1) City has approved the transfer of the Franchise, in accordance with the
procedures set forth in this Franchise and as provided by law; and
(2) The purchaser has covenanted and agreed with City to assume and be
bound by all of the terms and provisions of this Franchise.
16.5 Purchase of the Cable System
If at any time this Franchise lawfully terminates, the City shall have the option to purchase the
Cable System.
SECTION 17. FRANCHISE TRANSFER
17.1 Transfer of Ownership or Control
(A) The Cable System and this Franchise shall not be sold, assigned, transferred,
leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary
sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right,
interest or property therein pass to or vest in any Person or entity without the prior written
consent of the City, which consent shall be by the City Council, acting by ordinance or
resolution.
(B) The Grantee shall promptly notify the City of any actual or proposed change in,
or transfer of, or acquisition by any other party of control of the Grantee. The word" control"
as used herein is not limited to majority stockholders but includes actual working control in
whatever manner exercised. Every change, transfer or acquisition of control of the Grantee
shall make this Franchise subject to cancellation unless and until the City shall have consented
in writing thereto.
(C) The parties to the sale or transfer shall make a written request to the City for its
approval of a sale or transfer or change in control and shall furnish all information required by
law.
(D) In seeking the City's consent to any change in ownership or control, the
proposed transferee or controlling entity shall indicate whether it:
(1) Has ever been convicted or held liable for acts involving deceit including
any violation of federal, State or local law or regulations, or is currently under an indictment,
investigation or complaint charging such acts;
(2) Has ever had a judgment in an action for fraud, deceit, or
misrepresentation entered against the proposed transferee by any court of competent
jurisdiction;
49
Cable Television Franchise
(3) Has pending any material legal claim, lawsuit, or administrative
proceeding arising out of or involving a cable system;
(4) Is financially solvent, by submitting financial data including financial
statements that are audited by a certified public accountant who may also be an officer of the
transferee or controlling entity, along with any other data that is lawfully required; and
(5) Has the financial, legal and technical capability to enable it to maintain
and operate the Cable System for the remaining term of the Franchise.
(E) The City shall act by ordinance or resolution on the request within one hundred
twenty (120) days of receipt of the FCC Form 394 application, provided it has received a
complete application. Subject to the foregoing, if the City fails to render a final decision on
the request within one hundred twenty (120) days, such request shall be deemed granted unless
the requesting party and the City agree to an extension of time.
(F) Within thirty (30) days of any transfer or sale or change in control, if approved
or deemed granted by the City, Grantee shall file with the City a copy of the deed, agreement,
lease or other written instrument evidencing such sale or transfer of ownership or control,
certified and sworn to as correct by Grantee and the transferee or controlling entity, and the
transferee or controlling entity shall file its written acceptance agreeing to be bound by all of
the provisions of this Franchise, subject to applicable law. In the event of a change in control,
in which the Grantee is not replaced by another entity, the Grantee will continue to be bound
by all of the provisions of the Franchise, subject to applicable law, and will not be required to
file an additional written acceptance. The approval of any change in control shall not be
deemed to waive any rights of City to subsequently enforce noncompliance issues relating to
this Franchise. For purposes herein to the extent that a change of control involves an entity
that was not an Affiliate prior to the contemplated transaction, the City's consent shall be
required for such change in control.
(G) In reviewing a request for sale or transfer or change in control, the City may
inquire into the legal, technical and financial qualifications of the prospective controlling party
or transferee, and Grantee shall assist the City in so inquiring. The City may condition said
sale or transfer or change in control upon such terms and conditions as it deems reasonably
appropriate, provided, however, any such terms and conditions so attached shall be related to
the legal, technical and financial qualifications of the prospective controlling party or
transferee and to the resolution of outstanding and unresolved issues of noncompliance with
the terms and conditions of this Franchise by Grantee.
(H) Notwithstanding anything to the contrary in this subsection, the prior approval
of the City shall not be required for any sale, assignment or transfer of the Franchise or Cable
System to an intracompany entity controlling, controlled by or under the same common control
as Grantee, provided that the proposed assignee or transferee must show financial
responsibility as may be determined necessary by the City and must agree in writing to comply
with all of the provisions of the Franchise. Further, Grantee may pledge the assets of the
Cable System for the purpose of financing without the consent of the City; provided that such
50
Cable Television Franchise
pledge of assets shall not impair or mitigate Grantee's responsibilities and capabilities to meet
all of its obligations under the provisions of this Franchise.
SECTION 18. PROHIBITED PRACTICES, LOCAL EMPLOYMENT EFFORTS
AND NOTICES
18.1 Preferential or Discriminatory Practices Prohibited
Grantee shall not discriminate in hiring, employment or promotion on the basis of race, color,
ethnic or national origin, religion, age, sex, sexual orientation, or physical or mental
disability. Throughout the term of this Franchise, Grantee shall fully comply with all equal
employment and non-discrimination provisions and requirements of federal, State and local
laws, and rules and regulations relating thereto.
18.2 Notices
Throughout the term of this Franchise, each party shall maintain and file with the other a local
address for the service of notices by mail. All notices shall be sent to such respective address,
and such notices shall be effective upon the date of mailing. At the effective date of this
Franchise:
Grantee's address shall be:
Comcast of Washington, IV, Inc.
P.O. Box 3042
Bothell, Washington 98041-3042
Attention: Franchising
With a Copy To:
Comcast Cable - Attention Franchising
1225 Sylvan Way
Bremerton, W A 98310
City's address shall be:
City of Bremerton, Washington
345 6th Street, Suite 600
Bremerton,Washington 98337
Attention: City Clerk
SECTION 19. MISCELLANEOUS PROVISIONS
19.1 Cumulative Rights
Subject to applicable law, all rights and remedies given to the City by this Franchise or
retained by the City herein shall be in addition to and cumulative with any and all other rights
and remedies, existing or implied, now or hereafter available to the City, at law or in equity,
and such rights and remedies shall not be exclusive, but each and every right and remedy
51
Cable Television Franchise
specifically given by this Franchise or otherwise existing or given may be exercised from time
to time and as often and in such order as may be deemed expedient by the City and the
exercise of one or more rights or remedies shall not be deemed a waiver of the right to
exercise at the same time or thereafter any other right or remedy.
19.2 Costs to be Borne by Grantee
Grantee shall pay for all costs of publication of this Franchise, and any and all notices prior to
any public meeting or hearing provided for pursuant to this Franchise.
19.3 Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted successors and assigns.
19.4 Authority to Amend
This Franchise may be amended at any time by written agreement between the parties.
19.5 Venue
The venue for any dispute related to this Franchise shall be in an appropriate court of
competent jurisdiction.
19.6 Governing Laws
This Franchise shall be governed, construed and enforced in accordance with the laws of the
State of Washington (as amended), the Cable Act as amended, any applicable rules,
regulations and orders of the FCC, as amended, and any other applicable local, State and
federal laws, rules, and regulations, as amended. Except as provided in Section 2.4(C) or
otherwise in this Franchise, Ordinance No.4598 and Resolution No. 2862 and Resolution
No.2687 are hereby rescinded and of no further force or effect. To the extent there is a
conflict between this Franchise and any City Ordinance or Resolution, the terms and
provisions of this Franchise shall control.
19.7 Captions
The captions and headings of this Franchise are for convenience and reference purposes only
and shall not affect in any way the meaning or interpretation of any provisions of this
Franchise.
19.8 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent relationship
between the parties, and neither party is authorized to, nor shall either party act toward third
persons or the public in any manner that would indicate any such relationship with the other.
19.9 Waiver
The failure of either party at any time to require performance by the other of any provision
hereof shall in no way affect the right of the other party hereafter to enforce the same. Nor
shall the waiver by either party of any breach of any provision hereof be taken or held to be a
waiver of any succeeding breach of such provision, or as a waiver of the provision itself or
any other provision.
52
Cable Television Franchise
19.10 Severability
If any Section, subsection, paragraph, term or provision of this Franchise is determined to be
illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such
determination shall have no effect on the validity of any other Section, subsection, paragraph,
term or provision of this Franchise, all of which will remain in full force and effect for the
term of the Franchise.
19.11 Compliance with Federal, State and Local Laws
The Grantee shall comply with applicable federal, state and local laws, now existing or
hereafter adopted.
19.12 Force Majeure
The Grantee shall not be held in default under, or in noncompliance with, the provisions of
this Franchise, nor suffer any enforcement or imposition of damages relating to noncompliance
or default, where such noncompliance or alleged defaults occurred or were caused by
circumstances reasonably beyond the ability of the Grantee to anticipate and control, including
war or riots, civil disturbances, floods or other natural catastrophes, labor stoppages, slow
downs, availability of materials, labor or equipment, power outages exceeding back-up power
supplies or work delays caused by waiting for utility providers to service or monitor their
utility poles to which the Grantee's Cable System is attached.
19.13 Entire Agreement
This Franchise, Exhibit I and Exhibit II which is the I-Net Maintenance Agreement represent
the entire understanding and agreement between the parties hereto with respect to the subject
matter hereof and supersede all prior oral and written negotiations between the parties.
19.14 Attorneys' Fees
If any action or suit arises in connection with this Franchise, either the City or Grantee, as the
case may be, shall be entitled to recover all of its reasonable attorneys' fees, costs and
expenses in connection therewith as determined by the court.
19.15 Action of the City or Grantee
In any action by the City or Grantee mandated or permitted under the terms hereof, it shall act
in a reasonable, expeditious and timely manner. Furthermore, in any instance where approval
or consent is required under the terms hereof, such approval or consent shall not be
unreasonably withheld.
19.16 Acceptance
Within forty-five (45) days of receipt of the Franchise after its execution by the City, this
Franchise shall be accepted by Grantee by filing with the City Clerk an unconditional, written
acceptance of all of the terms, provisions and conditions of this Franchise. The failure of
Grantee to file such an acceptance shall be deemed a rejection by the Grantee and this
Franchise shall then be voidable at the discretion of the City.
53
Cable Television Franchise
CITY COUNCIL
CITY OF BREMERTON, WASHINGTON
In the matter of the application
of Com cast of Washington IV, Inc.
for a franchise to construct, operate
and maintain facilities in, upon,
over under, along, across and
through the franchise area of the
City of Bremerton,
Washington
Franchise Ordinance No. 5012
ACCEPTANCE
WHEREAS, the City Council ofthe City of Bremerton, Washington, has granted a
franchise to Comcast of Washington IV, Inc., its successors and assigns, by enacting
Ordinance No. 5012, bearing the date of May 29,2007; and
WHEREAS, a copy of said Ordinance granting said franchise was received by the
Comcast of Washington IV, Inc. on gl1.1l1..L / I Ht.-, 2007, from said City of
Bremerton, Kitsap County, Washington
NOW, THEREFORE, Comcast of Washington IV, for itself, its successors and
assigns, hereby accepts said Ordinance and all the terms and conditions thereof, and files
this, its written acceptance, with the City of Bremerton, Kitsap County, Washington.
IN TESTIMONY WHEREOF said Comcast of Washington IV, Inc. has caused
this written Acceptance to be executed in its name by its undersigned
L eo VlC\.Y"d .T. Roz.e. ~ thereunto duly authorized on this / /'f1tday of
~~ ,2007.
ATTEST: COMCAST OF WASHINGTON IV, INC.
~~~
S eV\'lo\"" V ice Py-es:ld'€Vlt'
R:\Legal\Legal\Ordinances\FinanceI2007 Comcast Franchise.final.doc
55
Cable Television Franchise
SECTION 20. SEVERABILITY
If anyone or more sections, subsections, or sentences of this ordinance are held to be
unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of
this ordinance and the same shall remain in full force and effect.
SECTION 21. EFFECTIVE DATE.
This ordinance shall take effect and be in force ten (l0) days from and after its passage, approval
and publication as provided by law.
PASSED by the City Council the / /qz:IJ day of ,2007
..
Approved this /::h:J.) day of 20~
~
ATTEST: APPROVED AS TO FORM:
P ~~UB~tYAttn~
PUBLISHED the IWu day of ~' ,2007
EFFECTIVE the ot ~ day of ,2007
ORDINANCE NO. .50 J~
,
54
Cable Television Franchise
EXIDBIT I
CUSTOMER SERVICE STANDARDS
SECTION I.POLICY
Grantee should be permitted the option and autonomy to first resolve citizen complaints
without delay and interference from the City.
Where a given complaint is not addressed by Grantee to the citizen's satisfaction, the City
may intervene, if requested to do so by the citizen. In addition, where a pattern of
unremedied complaints or noncompliance with these Standards is identified, the City may
prescribe a cure and establish a thirty (30) day deadline for implementation of the cure.
These Standards are intended to be of general application; however, Grantee shall be
relieved of any obligations hereunder if it is unable to perform due to a natural
emergency in the region, or in the event of force majeure affecting a significant portion
of the City. Grantee is free to exceed these Standards to the benefit of its Customers and
such shall be considered performance for the purposes of these Standards.
Grantee is responsible to the City to insure that its agents, contractors and subcontractors
comply with all applicable provisions of these Standards.
SECTION 2. CUSTOMER SERVICE.
2.1. Courtesy
All employees of Grantee shall use reasonable good faith efforts to provide effective and
satisfactory service in all contacts with Customers.
2.2. Accessibility; Cable System office hours and telephone availability
(A) Grantee shall maintain a local, toll-free or collect call telephone access line
which will be available to its Customers 24 hours a day, seven days a week.
(1) Trained company representatives will be available to respond to
Customer telephone inquiries during normal business hours.
(2) After normal business hours, the access line may be answered by a
service or an automated response system, including an answering machine. Inquiries
received after normal business hours must be responded to by a trained company
representative on the next business day.
(B) Under normal operating conditions, telephone answer time shall not
exceed thirty (30) seconds when the connection is made. These standards shall be met
no less than ninety (90) percent of the time under normal operating conditions, measured
on a quarterly basis.
(C) Grantee will not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards set forth above, unless a
historical record of complaints indicates a clear failure to comply.
(D) Under normal operating conditions, the Customer will receive a busy
signal less than three (3) percent of the time.
(E) A Customer service center which is encouraged or required by the terms
of an agreement with the City, will be open during normal business hours.
2.3. Responsiveness; installations, outages and service calls
(A) Under normal operating conditions, each of the following five standards
will be met no less than ninety (90) percent of the time measured on a quarterly basis:
(1) Standard installation will be performed within seven (7) business
days after an order has been placed. "Standard" installations are those that are located up
to 125 feet for an aerial installation and 60 underground feet for an underground
installation from the existing distribution Cable System.
(2) Excluding conditions beyond the control of a Grantee, a Grantee
will begin working on "service interruptions" promptly and in no event later than 24
hours after the interruption becomes known. Grantee must begin actions to correct other
service problems the next business day after notification of the service problem.
(3) The "appointment window" alternatives for installations, service
calls, and other installation activities will be either a specific time or, at maximum, a
four-hour time block during normal business hours. For purposes herein, "normal
business hours" shall be between 8:00 A.M. to 5:00 P.M., Monday through Friday.
Grantee may schedule service calls and other installation activities outside of normal
business hours for the express convenience of the Customer.
(4) Grantee may not cancel an appointment with a Customer after the
close of business on the business day prior to the scheduled appointment unless due to
extended work at another location.
(5) If Grantee's representative is running late for an appointment with
a Customer and will not be able to keep the appointment as scheduled, the Customer will
be contacted. The appointment will be rescheduled, as necessary, at a time which is
convenient for the Customer.
(B) Grantee shall meet or exceed technical standards established by the United
States Federal Communications Commission (the "FCC"). Grantee shall render efficient
service, make repairs promptly, and interrupt service only for good cause and for the
shortest time possible. Scheduled interruptions shall occur during periods of minimum
use of the Cable System, preferably between midnight and six a.m. (6:00 a.m.).
(C) Grantee's Customer Service Representative shall have the authority to
provide credit for interrupted service, to waive fees, to schedule service appointments and
to change billing cycles, where appropriate.
(D) Billings, refunds and credits.
(1) Bills will be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and premium service
charges and equipment charges. Bills will also clearly delineate all activity during the
billing period, including optional charges, rebates and credits. In case of a billing
dispute, Grantee must respond to a written complaint from a Customer within thirty (30)
days.
(2) Refund checks will be issued promptly, but no later than either the
Customer's next billing cycle following resolution of the request or thirty (30) days,
whichever is earlier, or the return of the equipment supplied by Grantee if service is
terminated.
(3) Credits for service will be issued no later than the Customer's next
billing cycle following the determination that a credit is warranted.
(4) 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.
(E) Treatment of Private Property.
(1) Grantee shall keep tree trimming to a minimum; trees and shrubs
or other landscaping that are damaged by a Cable Operator, any employee or agent of
Grantee during installation or construction shall be restored to their prior condition or
replaced. Trees and shrubs shall not be removed without the prior permission of the
owner or legal tenant of the property on which they are located.
(2) Grantee shall, at its own cost and expense, and in a manner
approved by the property owner, restore any property to as good condition as before the
work causing such disturbance was initiated. Grantee shall repair, replace or compensate
a property owner for any damage resulting from Grantee's installation, construction,
service or repair activities.
(3) Except in the case of an emergency involving public safety or
service interruption to a large number of Customers, Grantee shall give reasonable notice
to property owners or legal tenants prior to entering upon private premises, provided that
in the case of construction operations such notice shall be delivered or provided at least
twenty-four (24) hours prior to entry. Nothing herein shall be construed as authorizing
access or entry to private property, or any other property, where such right to access or
entry is not otherwise provided by law, easement, and/or an agreement with the City.
For the installation of pedestals or other major construction or installation projects on
private property, the property owner and/or resident shall also be notified in writing at
least forty-eight hours in advance. In the case of an emergency, Grantee shall attempt to
contact the property owner or legal tenant in person, and shall leave a door hanger notice
in the event personal contact is not made. Notwithstanding the foregoing, if another
Person's property will be affected by work requested by a Customer or potential
Customer, Grantee shall endeavor to provide notice to that Person as well.
(4) Grantee personnel shall clean all areas surrounding any work site
and ensure that all cable materials have been disposed of properly.
2.4 Services for Customers with Disabilities
Grantee will use reasonable good faith efforts to meet the special needs of Customers
with disabilities.
2.5 Notification to Customers
(A) Grantee shall provide written information on each of the following areas at
the time of installation of service, at least annually to all Customers, and at any time upon
request.
(1) Products and services offered;
(2) Prices and options for programming services and conditions of
subscription to programming and other services;
(3) Installation and service maintenance policies;
(4) Instructions on how to use the cable service;
(5) Channel positions programming carried on the Cable System; and,
(6) Billing and complaint procedures.
(B) Customers will be notified of any changes in rates, programming services
or channel positions as soon as possible in writing. Notwithstanding any other provision
herein, Grantee shall not be required to provide prior notice of any rate change that is the
result of a regulatory fee, agreement fee, or any other fee, tax, assessment, or charge of
any kind imposed by any Federal or State agency, on the transaction between Grantee
and the Customer.
(C) All officers, agents, and employees of Grantee or its contractors or
subcontractors who are in personal contact with Customers shall have identification cards
bearing their name and photograph. Grantee shall account for all identification cards at all
times. Every vehicle of Grantee shall be clearly visually identified to the public as
working for Grantee. All CSRs shall identify themselves orally to callers immediately
following the greeting during each telephone contact with the public.
2.6 Customer Privacy
(A) Grantee shall not monitor cable television signals to determine the
individual viewing patterns or practices of any Customer without prior written consent
from that Customer, except as otherwise permitted by Federal Law.
(B) Grantee shall not sell or otherwise make available Customer lists or other
personally identifiable Customer information without prior written Customer consent,
except as otherwise permitted by Federal Law. Grantee is permitted to disclose such
information if such disclosure is necessary to render, or conduct, a legitimate business
activity related to a cable service or other service provided by Grantee to its Customers.
2.7 Safety
Grantee shall install and locate its facilities, Cable System, and equipment in compliance
with all federal, state, local, and company safety standards, and in such manner as shall
not endanger persons or property. Whenever a Grantee receives notice that an unsafe
condition exists with respect to its equipment, Grantee shall investigate such condition
immediately, and shall take such measures as are necessary to remove or eliminate any
unsafe condition.
SECTION 3. COMPLAINT PROCEDURE
3.1 Complaints to Grantee
(A) Grantee shall establish written procedures for receiving, acting upon, and
resolving Customer complaints, and crediting Customer accounts and shall publicize such
procedures through printed documents at Grantee's sole expense.
(B) Said written procedures shall prescribe a simple manner in which any
Customer may submit a complaint by telephone or in writing to Grantee that it has
violated any provision of these Customer Service Standards, or any terms or conditions
of the Customer's contract with Grantee.
(C) At the conclusion of Grantee's investigation of a Customer complaint, but
in no more than thirty (30) calendar days after receiving the complaint, Grantee shall
notify the Customer of the results of its investigation and its proposed action or credit.
3.2 Complaints to the City
(A) Any Customer who is dissatisfied with any proposed decision of Grantee
or who has not received a decision within the thirty (30) day period as required shall be
entitled to have the complaint reviewed by the City or its designee.
(B) The Customer may initiate the review by filing a written complaint
together with Grantee's written decision, if any, with the City.
(C) The Customer shall make such filing and notification within thirty (30)
days of receipt of Grantee's decision or, if no decision has been provided, within forty
(40) days after filing the original complaint with Grantee.
(D) The City or its designee may extend these time limits for reasonable cause
and may intercede and attempt to negotiate an informal resolution.
(E) If the City or its designee determines that the Customer's complaint is
valid and that Grantee did not provide the complaining Customer with the proper solution
and/or credit, the City or its designee may further pursue the issue with the Grantee and
Grantee shall respond to City within 5 business days.
3.3 Overall Quality of Service
The City may evaluate the overall quality of Customer service provided by Grantee to
Customers:
(A) In conjunction with any performance review provided for in an agreement
with the City; and,
(B) At any other time, at its sole discretion based on the number of Customer
complaints received by Grantee and the City, and Grantee's response to those complaints.
3.4 Non-Compliance with Customer Service Standards.
Non-compliance with any provision of these Standards is a violation of these Standards.
SECTION 4. MISCELLANEOUS
4.1 Severability
Should any section, subsection, paragraph, term, or provision of these Standards be
determined to be illegal, invalid, or unconstitutional by any court or agency of competent
jurisdiction with regard thereto, such determination shall have no effect on the validity of
any other section, subsection, paragraph, term, or provision of these Standards, each of
the latter of which shall remain in full force and effect.
4.2 Non-Waiver
Failure to enforce any provision of these Standards shall not operate as a waiver of the
obligations or responsibilities of Grantee under said provision, or any other provision of
these Standards.
@omcast~ Corneast Cable Communications, Inc.
440 Yauger Way SW
Olympia, WA 98502-8153
INSTITUTIONAL NETWORK MAINTENANCE AGREEMENT
BETWEEN
Comcast of Washington IV, Inc.
AND
The City ofBremerton
THIS INSTITUTIONAL NETWORK MAINTENANCE AGREEMENT (the
"Agreement") is between the City ofBremerton, a Washington municipal corporation, hereinafter
the "City," and Comeast of Washington IV, Ine.( formerly known as TCI Cablevision of
Washington Inc.) a/kIa Comcast, hereinafter "Comcast". The parties intend to set forth in this
Agreement the terms and conditions for provision ofInstitutional Network ("'I-Net") maintenance
by Comcast.
RECITALS
WHEREAS, on August 23, 1997, the City granted to Comcast a cable television franchise
by Ordinance No. 4598 (the "Franchise"); and
WHEREAS, Section 6.2 ofthe Franchise contemplates the manner in which the City may
require the provision of an I-Net; and
WHEREAS, Comcast has completed construction of the I-Net and the parties have
determined that it is necessary to c1arifY the terms and conditions for maintenance of the City
utilized I-Net, for the City, by Corneas!.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Section I. City I-Net Fiber Connections To City Buildings Within City Limits. Comcast
has provided I-Net connections to the public buildings as designated in the
mutually agreed upon site list attached hereto as Exhibit "A", with each
building connecting to the City Hub. The City shall have an indefatigable,
exclusive right of use thereof for non-conunercial private network
communications, which right cannot be revoked by Comcast, or successor
companies, if any, during the term of the Franchise or any renewals thereof.
However, notwithstanding anything in this Agreement to the contrary,
Comcast shall at all times own in fee and maintain the outside aerial and
underground fiber optic cable and associated facilities and equipment up to said
fiber termination points where physically connected to City-owned optronics.
S~,~tion 2. Fiber Construction and Termination. Fiber has been constructed and
terminated in accordance with Comcast standard practices, including but not
limited to practices concerning connectorization. Comcast is allowed to utilize
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EXHIBIT II
City-owned conduit with available capacity, at no charge, for fiber construction
on City property and in Public R.O.W., and the City has agreed to grant
Comcast all necessary rights of entry, easements and licenses to accomplish the
construction to the sites referenced hereunder and listed on Exhibit "A,"
attached hereto. Each :fiber connection has been terminated at an internal point
of demarcation in a Comcast standard fiber termination panel, unless the City
provided another means oftermination, in which case the City has provided, at
its expense, all necessary fiber termination equipment. At each fiber
termination location the City has provided wall mount backboards and a power
source for the basic termination, or such equipment as chosen by the City as a
replacement.
Section 3. Maintenance of Fiber. Routine maintenance on the fiber used for City 1-
Net purposes and including associated facilities and equipment used
exclusively by the City for I~Net communications will be conducted on the
same schedule as routine maintenance on Comcast's cable system. Any
repairs effected upon the fiber and associated I-Net facilities and equipment
shall be performed by Comcast, with prior notice to the City when
practicable. In emergency conditions, such as a natural emergency
resulting from a windstorm, Comcast will effect emergency repair work on
the Corncast utilized fiber and City utilized I-Net :fiber, if any, in the course
of conducting its own emergency repair work on its cable system.
excepting where City utilized I-Net fiber may not be co-located with
Comcast system plant on a strand or in conduit in which case Comcast
fiber shall be repaired as a first priority and City utilized fiber shall be
repaired as a second priority. In such event, Comcast shall have no liability
to City for such delay in I-Net service restoration. Corncast shall levy an
all-inclusive, annual maintenance fee (as hereinafter described) for all
routine maintenance, non-emergency and emergency repairs upon the I-Net
fiber and associated facilities and equipment from the Corncast side of the
I-Net fiber termination panel located at each site out to and including the
backbone fiber.
Section 4. Service Trouble Calls and Escalation. The City acknowledges that
Corncast does not actively monitor the signal transmission upon City
utilized I-Net fiber, and would have no notice ofa service outage but for
City-initiated notification. For any outages of City utilized I-Net fiber as
determined by the City, the City or its designated I-Net site representative
shall notify its information technology ("IT") representative .The City IT
representative shall, in turn, contact the Comcast Service Assurance Center
("CSAC") Corneast shall respond to any routine trouble call within four (4)
hours of receipt of notification at CSAC and shall actively begin working
continuously until the problem is resolved.
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Section 5. Administration. Maintenance and Management of the I-Net. The City shall
be responsible for the ongoing administration, maintenance and
management ofthe non-backbone I-Net facilities and equipment located on
the City side of the I-Net fiber termination panel located at each site, and
the internal site network itself, unless it contracts with Comcast for a
managed network. All such maintenance conducted by the City shall be
performed in accordance with industry standards, and any equipment
owned and used by the City shall comply in all respects with applicable
governmental codes, laws, ordinances or regulations.
Section 6. City I-Net Users to Provide Electronics. Comcast shall be responsible for
supplying and installing the specified fiber optic cable, for the City's use, to
the specified fiber termination panel locations only, providing a pathway for
I-Net communications between sites. NOTWITHSTANDING,
COMCAST DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. COMCAST SPECIFICALLY DISCLAIMS
ANY RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY THE
CITY ARISING OUT OF ITS PERFORMANCE UNDER THIS
AGREEMENT. IN NO EVENT SHALL COMCAST BE LIABLE TO
THE CITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT
FORESEEABLE. Any "active" equipment or components, including but
not limited to computers, network cards, optronics, electronics, and
equipment racks, required for I-Net use shall be provided at the City's sole
expense, unless the City has entered into a separate agreement with
Comcast for a managed network, in which case the terms of such
agreement shall govern equipment ownership.
Section 7. Private Network Status. The City utilized I-Net is a private
communication network governed by the Franchise, as amended, and this
Agreement, and the City will use the I-Net solely for non-commercial
applications in accordance therewith. To-wit, the City shall not lease,
resell or grant access privileges to I-Net capacity or services to a third
party, for any purpose whatsoever. The City will not attach any equipment
or otherwise modifY the I-Net in any way that will interfere with the signal
quality and the normal operation ofComcast's cable system, and Comeast
reserves the right to immediately suspend until rectified the City's rights
granted hereunder in the event such interference should occur. The City
shall be notified within 4 hours of such occurrence or within 4 hours of the
next business day the City is available to receive such a call. Such unilateral
suspension shall not place Corncast in violation of the Franchise or
constitute a breach of this Agreement. The City may not access any part of
the backbone fiber and associated facilities and equipment outside the
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actual I-Net site fiber termination panel; the City's permitted access shall in
no event extend beyond the City's side of the fiber termination panel. The
City's use of the I-Net contemplated herein shall not qualify Comeast as a
common carrier, and City agrees to forebear its rights hereunder
indefinitely in the event of inquiry into same by a state or federal agency
with oversight.
Section 8. Undergroundinf? When electric and telephone utility wiring and the aerial
lines of telecommunications providers in an area of the City are relocated
underground, Comcast shall, in accordance with its obligation, if any, under
the Franchise, place its cable system and I-Net lines underground at the
same time. Comcast shall be responsible for costs associated with the
placement ofI-Net utilized fiber when Comcast's system fiber is placed
underground at the same time .
Section 9. Cost ofI-Net Maintenance~ Annual Maintenance Fee. The ongoing
maintenance and repair of the City utilized I-Net backbone fiber, whether
scheduled or prompted by an emergency, shall be performed by Comcast as
part of an annual maintenance fee. Such fee, payable by the City to
Comcast at commencement of the City's next fiscal year following
execution of this Agreement and each anniversary thereafter, shall initially
be Five Hundred and No One Hundredths Dollars ($500.00) per strand
mile per year. Current total I-Net strand mileage shall be indicated on
Exhibit "B", attached hereto. Such fee shall apply without regard to
number of necessary non-emergency or emergency repair incidents
required, and shall cover, without limitation, restoration of outages caused
by third-party plant damage or damage wrought by inclement weather,
quarterly system drive-outs for preventive maintenance, code compliance
inspections, fiber functionality testing and re-documentation, pole change.
outs and relocation, strand replacement, strand/facilities re-tensioning,
anchoring, all labor, materials and equipment charges and associated
engineering costs. City shall make payment within ninety (90) days of
receipt of the invoice. Should City fail to make payment within such
period, City shall be assessed an interest charge from the date payment was
due at an annual rate of the then current prime rate plus two (2%) percent.
Section 10. Annual Maintenance Fee Increase. Effective on the first anniversary of the
initial invoicing of the City for the annual maintenance fee (the "Adjustment
Date"), and on each succeeding anniversary dwing the term of the
Franchise, the annual maintenance fee payable by City to Comcast shall be
increased by an amount equal to the increase in the Consumer Price Index
for Seattle- Tacoma.Bremerton (All Urban Consumers) (the ''Index'')
published most inunediately preceding that date which is twelve (12)
months prior to the Adjustment Date; provided, however, that in no event
shall the annual maintenance fee payable after the Adjustment Date be less
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than the annual maintenance fee payable before the Adjustment Date.
Comcast shall not be obligated to make any adjustments or re-
computations, retroactive or otherwise, by reason of any revision which
later may be made in the Index figures first published for any period. If the
CPI or the Index is discontinued, the parties shall follow any official
consumer price index, whether so named or designated or not, issued by
any authorized agency of the United States which supplants the Index;
otherwise, the parties shall use any comparable general wholesale or retail
price index for the United States jointly selected by City and Comcast.
Section 11. Force Maieure. No party shall be in default or liable to the other for any
failure or performance under this Agreement due to causes beyond its
control (except for the ful:fillment of payment obligations as set forth
herein), including, but not limited to: acts of God, fire, flood or other
catastrophes; adverse weather conditions; national emergencies;
insurrections; riots, wars; or strikes, lock-outs, work stoppages or other
labor difficulties; provided, however, the party that is unable to perform its
obligations shall promptly notify the other party of such delay and the time
period shall be extended for the actual amount oftime said party is so
delayed.
Section 12. Entire AlZreement. This Agreement represents the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior oral negotiations and agreements between them. All
other provisions of the Franchise shall remain in full force and effect.
AGREED TO BETWEEN THE PARTIES on the last date written below.
Comcast of Washington IV, Inc.
By: s;dent - Finance
5
By: Ctu 80ze
its: M;'~ot"
Date: /1-.;1.4/-03
CrT
P:\Civi1\FlLES\OpenFiles\BremertonINET Maintainence Agreementdoc
6
..._.. -...____.._m._ ..---
EXHIBIT A
SITES:
1. City Hall
239 Fourth Street
Police & Courts
239 Fourth Street
2. Public Works
100 Oyster Bay
3. Utilities Headquarters
3027 Olympus Drive
4. Parks And Recreation
680 Lebo Blvd.
5. Wastewater Treatment Plan
1600 Oyster Bay
6. Fire Station No.1
817 Pacific Ave.
7. Fire Station No.2
5005 Kitsap Way
8. Jarstad Aquatic Center
50 Magnuson
9. Senior Center
1140 Nipsic
10. West Police Precinct
4846 Auto Center Way
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EXHIBIT "B"
Bremerton I-Net consists of 57,029' of system plant strand miles.
57029' = 10.8 miles
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AFFIDAVIT OF PUBLICATION
Account # 42742 / Ad # 200915
ST ATE OF WASHINGTON
COUNTY OF KlTSAP
I, Sarah Weller, being first duly sworn on oath, deposes and says: That she is now, and at all times
embraced in the publication herein mentioned was the principal clerk of the printers and publishers of
KITSAP SUN; that said newspaper has been approved as a legal newspaper by order of the Superior Court
of the County of Kitsap, in which County it is published and is now and has been for more than six months
prior to the date of the publication hereinafter referred to, published in the English language continually as
a daily newspaper in Bremerton, Kitsap County, Washington, a weekly newspaper in Kitsap County,
Washington and is now and during all of said time, was printed in an office maintained in the aforesaid
place of publication of said newspaper; that the following is a true text of a legal advertisement as it was
published in regular issues (and not in supplement form) of said newspaper on the following date, to wit: ,
May 19, 2007 and that such newspaper was regularly distributed to its subscribers during all of said period.
That the full amount of the fee charged for the foregoing publication is the sum of$32.56 which amount
has not been paid in full.
~.~~
(Signature of Principal Clerk)
Subscribed and sworn to before me this day of May 30, 2007
Notary Public in and for the State of Washington, Kitsap County.
Notary Public
State or Washington
BLAn
My ApPOintment Expires Jul 30. 2010
ORDINANCE NO. 5012
AN ORDINANCE granting Comcast of Washington IV, Inc., the right, privilege, authority and franchise to
construct, operate, maintain, reconstruct, repair and upgrade the Cable System upon, over, under, along,
across and through the Franchise Area for the purpose of providing Cable Services, subject to the terms and
conditions set forth in this Ordinance and applicable law.
The full text of this ordinance is available at the City Clerk's Office, 345 6th Street, Suite 600, Bremerton,
W A, 98337.
May 19, 2007............................AD#20039448