HomeMy WebLinkAboutOrdinance 5100 ORDINANCE NO. 51 C 2 0
AN ORDINANCE granting WaveDivision IV, LLC 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 to provide Cable Services to the Franchise Area 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 will 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 authorized 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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Table of Contents
INTRODUCTORY STATEMENT ........................................ ............................... ..............7
SECTION 1. DEFINITIONS .............................................................. ..............................8
"Access" or "Access Programming " ............................ .......8
......... ...............................
"Access Channel" ............................................................................ ..............................8
"Access Fees" ................................................................................. ..............................8
"Activation" or "Activated" ............................................................ ............................... 8
. Affiliated Entity" or "Affiliate" ....................................................... ..............................8
"Bad Debt" ....................................................................................... ..............................9
"Basic Service" ................................................................................ ..............................9
"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 ..............................9
"Cable Act" ....................................................................................... ..............................9
"Cable Operator" ............................................................................. ..............................9
"Cable Service" ................................................................................ ..............................9
"Cable System" ................................................................................ ..............................9
" Channel" ........................................................................................ .............................10
" City ............................................................................................ ...............................
.10
"Customer Service Representative" ............................................. .............................10
"Designated Access Provider" ...................................................... .............................10
"Downstream Channel" ................................................................. .............................10
"Dwelling Unit" ............................................................................... .............................10
"Expanded Basic Service" ............................................................. .............................10
" FCC" ............................................................................................... .............................10
"Fiber Optic" ................................................................................... .............................10
" Franchise" ..................................................................................... .............................10
"Franchise Area" ............................................................................ .............................10
"Franchise Fee" .............................................................................. .............................11
"Grantee" ........................................................................................ .............................11
"Gross Revenues" .......................................................................... .............................11
"Headend" or "Hub" ....................................................................... .............................12
"Incremental Costs" ....................................................................... .............................12
"Interconnect" or " Interconnection" ............................................. .............................12
"Leased Access Channel" ............................................................. .............................12
"Locally Scheduled Original Programming" ................................ .............................12
" Noncommercial" ........................................................................... .............................13
, Normal Business Hours" .............................................................. .............................13
"Normal Operating Conditions" .................................................... .............................13
"Pay Service" or "Premium Service" ............................................ .............................13
"Person" .......................................................................................... .............................13
. Rights -of- Way .. .............................................................................. .............................13
"Service Interruption" .................................................................... .............................13
"State" ............................................................................................. .............................13
"Subscriber" or " Customer" .......................................................... .............................14
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" Tier" ................................................................................................ .............................14
. Video Programming .. .................................................................... .............................14
SECTION 2. GRANT OF FRANCHISE ........................................... .............................14
2.1 Grant ..................................................................................... .............................14
2.2 Use of Rights -of- Way ........................................................... .............................15
2.3 Term ...................................................................................... .............................16
2.4 Effective Date ....................................................................... .............................16
2.5 Franchise Nonexclusive ...................................................... .............................16
2.6 Grant of Other Franchises .................................................. .............................17
2.7 Familiarity with Franchise ................................................... .............................17
2.8 Effect of Acceptance ........................................................... .............................18
2.9 Police Powers ...................................................................... .............................18
2.10 Franchise Area ..................................................................... .............................18
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS ..... .............................18
3.1 Franchise Fee ....................................................................... .............................18
3.2 Payments .............................................................................. .............................18
3.3 Acceptance of Payment ....................................................... .............................18
3.4 Quarterly Franchise Fee Reports ....................................... .............................19
3.5 Audits .................................................................................... .............................19
3.6 Financial Records ................................................................ .............................19
3.7 Interest on Late Payments .................................................. .............................19
3.8 Maximum Franchise Fee ................................. ...............................
3.9 Additional Commitments Not Franchise Fees ................... .............................20
3.10 Payment on Termination ..................................................... .............................20
3.11 Service Packages ................................................................ .............................20
3.12 Additional Compensation .................................................... .............................21
3.13 Tax Liability .......................................................................... .............................21
SECTION 4. ADMINISTRATION AND REGULATION .................... .............................21
4 .1 Rates and Charges .............................................................. .............................21
4.2 No Rate Discrimination ....................................................... .............................21
4.3 Filing of Rates and Charges ............................................... .............................22
4.4 Time Limits Strictly Construed ........................................... .............................22
4.5 Performance Evaluation ...................................................... .............................22
4.6 Leased Access Channel Rates ........................................... .............................22
4 .7 Late Fees .............................................................................. .............................22
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS .... .............................23
5.1 Indemnification .................................................................... .............................23
5.2 Insurance Requirements ..................................................... .............................24
5.3 Security ................................................................................. .............................26
SECTION 6. CUSTOMER SERVICE .............................................. .............................27
6.1 Customer Service Standards .............................................. .............................27
6.2 Subscriber Privacy .............................................................. .............................27
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6.4 Customer Service Agreement and Manual ........................ .............................28
SECTION 7. REPORTS AND RECORDS ....................................... .............................28
7.1 Open Records ...................................................................... .............................28
7.2 Confidential / Proprietary Information ............................... .............................29
7.3 Records Required ................................................................ .............................29
7.4 Complaint File and Reports ................................................ .............................29
7.5 Inspection of Facilities and Annual Meeting ..................... .............................30
7.6 False Statements ................................................................. .............................30
SECTION 8. PROGRAMMING ........................................................ .............................30
8.1 Broad Programming Categories ......................................... .............................30
8.2 Deletion of Broad Programming Categories ..................... .............................30
8.3 Obscenity .............................................................................. .............................30
8.4 Services for the Disabled .................................................... .............................30
8.5 Parental Control Device ...................................................... .............................30
SECTION 9. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS ................31
9.1 Access Channels ................................................................. .............................31
9.2 Triggers for Additional Access Channel ............................ .............................31
9.3 Management and Control of Access Channels ................. .............................32
9.4 Underutilized Access Channels .......................................... .............................32
9.5 Access Channel Identification /Location /Relocation /Bill Insertions .............32
9.6 Access Interconnections .................................................... .............................32
9.8 Access Channels On Lowest Tier ...................................... .............................34
9.9 Technical Quality ................................................................. .............................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 ......................................... .............................35
10.5 Acquisition of Facilities ....................................................... .............................36
10.6 Reservation of Rights -of- Way ............................................. .............................36
10.7 Rights -of -Way Vacation by City .......................................... .............................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 ......................................... .............................40
10.13 Tree Trimming .................................................................... .............................40
10.14 Standards ........................................................................... .............................40
10.15 Stop Work ........................................................................... .............................40
10.16 Work of Contractors and Subcontractors ........................ .............................41
10.17 GIS Mapping ....................................................................... .............................41
SECTION 11. CABLE SYSTEM DESIGN ....................................... .............................41
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SECTION 12. TECHNICAL STANDARDS ...................................... .............................42
12.1 Technical Performance ....................................................... .............................42
12.2 Cable System Performance Testing ................................... .............................42
SECTION 13. STANDBY POWER AND EAS ................................. .............................42
13.1 Standby Power ..................................................................... .............................42
13.2 , Emergency Alert Capability ................................................. .............................43
SECTION 14. FRANCHISE BREACHES; TERMINATION OF FRANCHISE ..............43
14.1 Procedure for Remedying Franchise Violations ............... .............................43
14.2 Alternative Remedies ........................................................... .............................44
14.3 Revocation ............................................................................ .............................45
SECTION 15. FRANCHISE TRANSFER ......................................... .............................46
15.1 Transfer of Ownership or Control ...................................... .............................46
SECTION 16. PROHIBITED PRACTICES, LOCAL EMPLOYMENT EFFORTS AND
NOTICES.......................................................................................... .............................47
16.1 Preferential or Discriminatory Practices Prohibited ......... .............................47
16.2 Notices ..................................................................................... .............................47
SECTION 17. MISCELLANEOUS PROVISIONS ........................... .............................48
17.1 Cumulative Rights ............................................................... .............................48
17.2 Costs to be Borne by Grantee ............................................ .............................48
17.3 Binding Effect ....................................................................... .............................48
17.4 Authority to Amend .............................................................. .............................48
17.5 Venue .................................................................................... .............................48
17.6 Governing Laws ................................................................... .............................48
17.7 Captions ............................................................................... .............................49
17.8 No Joint Venture .................................................................. .............................49
17.9 Waiver ................................................................................... .............................49
17.10 Severability ......................................................................... .............................49
17.11 Compliance with Federal, State and Local Laws ............ .............................49
17.12 Force Majeure ..................................................................... .............................49
17.13 Entire Agreement .............................................................. .............................50
17.14 Attorneys' Fees .................................................................. .............................50
17.15 Action of the City or Grantee ............................................ .............................50
17.16 Acceptance ......................................................................... .............................50
SECTION 18. SEVERABILITY ........................................................ .............................50
SECTION 19. EFFECTIVE DATE ................................................... .............................50
EXHIBIT1 .......................................................................................... .............................53
CUSTOMER SERVICE STANDARDS .............................................. .............................53
SECTION1. POLICY ...................................................................... .............................53
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SECTION 2. CUSTOMER SERVICE ............................................... .............................53
2.1. Courtesy ................................................................................ .............................53
2.2. Accessibility; Cable System office hours and telephone availability .............53
2.3. Responsiveness; installations, outages and service calls .............................54
2.4 Services for Customers with Disabilities ............................ .............................56
2.5 Notification to Customers .................................................. ............................:.. 56
2 .6 Customer Privacy ................................................................. .............................57
2.7 Safety .................................................................................. ............................... 57
SECTION 3. COMPLAINT PROCEDURE ....................................... .............................57
3.1 Complaints to Grantee ......................................................... .............................57
3.2 Complaints to the City ............................................................. .............................58
3.3 Overall Quality of Service ...................................................... .............................58
3.4 Non - Compliance with Customer Service Standards .......... .............................58
SECTION 4. MISCELLANEOUS ...................................................... .............................58
4.1 Severability ......................................................................... ............................... 58
4.2 Non - Waiver ......................................................................... ............................... 59
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Cable Television Franchise
INTRODUCTORY STATEMENT
CABLE TELEVISION FRANCHISE. This Cable Television Franchise is entered
into in Bremerton, Washington, this ,//,,�, day of �( , 2009, by and
between the City of Bremerton, Washington a municipal corporation, ( "City ") and
WaveDivision IV, LLC d /b /a Wave Broadband ( "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.
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Cable Television Franchise
"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.
"Basic Service" means any Cable Service Tier that includes, at a minimum, the
retransmission of local television Broadcast Signals.
"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 Guide" means any guide operated and maintained by TV Guide, Grantee
or contractor to maintain the day and time of programs on channels carried by
Grantee.
"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
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Cable Television Franchise
"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 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 in the Franchise Area.
"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.
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Cable Television 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 Contributions as required by Section 9.7 of this Franchise.
(C) Requirements or charges incidental to the awarding or enforcing of
the Franchise, including but not limited to, payments for bonds, insurance,
indemnification or penalties; or
(C) Any fee imposed under Title 17, United States Code.
"Grantee" means WaveDivision IV, LLC d /b /a Wave Broadband 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, net
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 ii) 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; (iii) refunds, rebates or discounts made
to Subscribers or other third parties; (iv) any revenues classified, in whole or in
part, as Non -Cable Services revenue under federal or state law including, without
limitation, revenue received from Telecommunications Services; revenue
received from Information Services; charges made to the public for commercial
or cable television that is used for two -way communication; and any other
revenues attributed by Grantee to non -Cable Services in accordance with FCC
or state public utility regulatory commission rules, regulations, standards or
orders; (v) any revenue of Grantee or any other Person which is received directly
from the sale of merchandise through any Cable Service distributed over the
Cable System, notwithstanding that portion of such revenue that represents or
can be attributed to a Subscriber fee or a payment for the use of the Cable
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Cable Television Franchise
System for the sale of such merchandise, which portion shall be included in
Gross Revenue; (vi) any taxes on services furnished by the Grantee that are
imposed directly on any Subscriber or user by the State, City, federal or other
governmental unit and that are collected by the Grantee on behalf of said
governmental unit; (vii) any foregone revenue which Grantee chooses not to
receive in exchange for its provision of free or reduced cost cable or other
communications services to any Person, including without limitation, employees
of Grantee and public institutions or other institutions designated in the
Franchise; provided, however, that such foregone revenue which Grantee
chooses not to receive in exchange for trades, barters, services or other items of
value shall be included in Gross Revenues; (viii) sales of capital assets or sales
of surplus equipment; or (ix) directory or Internet advertising revenue including,
but not limited to, yellow page, white page, banner advertisement and electronic
publishing; or (x) 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.
"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 provisioning.
"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.
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Cable Television Franchise
"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.
"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.
"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.
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Cable Television Franchise
"Subscriber" or "Customer" means any Person who lawfully receives Cable
Services provided by Grantee in the Franchise Area 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 for the Grantee.
(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. 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.
(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
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Cable Television Franchise
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 -Way 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
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Cable Television Franchise
all other City codes, 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 such that interference with the use of the Rights -of-
Way by others is as minimal as reasonably practicable, including interference
with 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 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
reasonably reduce 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 ten 10 years, effective on December 31,
2009 and terminating on December 31, 2019; then at any time during the three
(3) year franchise renewal period, this Franchise may be extended for five (5)
additional years to December 31, 2024 unless Grantee is in material breach of
the Franchise and has not cured such material breach.
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 December 31, 2009.
(C) The grant of this Franchise shall have no effect on Grantee's duty
under 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 or easement, including the right of City to use
same for any purpose it lawfully deems fit, including the same or similar
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Cable Television Franchise
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 and rights granted under this Franchise and for such additional
franchises for Cable Systems, as City deems appropriate.
2.6 Grant of Other Franchises
2.6.1. 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 substantially 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 Grantee, contains more favorable or substantially 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, Grantee shall
have a right to request Franchise amendments that relieve Grantee of regulatory
burdens that create a competitive disadvantage to Grantee. In requesting
amendments, 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 not unreasonably withhold consent
to Grantee's petition.
2.7 Familiarity with Franchise
Grantee acknowledges and warrants by acceptance of the rights, privileges and
agreements 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.
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
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Cable Television Franchise
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, 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 Franchise subject to applicable law;
and (4) agrees that the Franchise was granted pursuant to processes and
procedures consistent with applicable law.
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
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Cable Television Franchise
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 or designee 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.
3.5 Audits
Every five years, upon thirty (30) days' prior written notice, City or City's
designated representative shall have the right to conduct an independent audit of
Grantee's financial records necessary to enforce compliance with the Franchise
Fee payment provisions of 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 two weeks, and the audit period shall not be any
greater than the previous 12 months 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 ten percent (10 %) or more in a calendar year, Grantee shall pay
the cost of the audit.
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 the Franchise Fee Provisions 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 Grantee remits
the payment.
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Cable Television Franchise
3.8 Maximum Franchise Fee
The parties acknowledge that, at present, applicable federal law limits the City to
collection of a Franchise Fee of five percent (5 %) of Gross Revenues in any
twelve (12) month period. Only 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. Only 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 grandfathered provisions under federal law to keep the Franchise
Fee at 3.5% of Gross Revenues.
3.9 Additional Commitments Not 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
Capital Contributions 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, 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 officer of Grantee, showing the Gross
Revenues received by 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 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 performance bond provided by 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.
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Cable Television Franchise
3.12 Additional Compensation
In the event that Franchise Fees are prohibited by any law or regulation, Grantee
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
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 made available to the public on Grantee's
website at www.wavebroadband.com, and shall be non - discriminatory as to all
Persons of similar classes, under similar circumstances and conditions, except
as allowed under applicable law. 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) Grantee agrees to offer a discount of 30% from its published rate
card rate to Subscribers for Limited Cable Services 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.
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Cable Television Franchise
4.3 Filing of Rates and Charges
Throughout the term of this Franchise, Grantee shall maintain on its website 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) Upon 90 days written notice to Grantee, 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.
(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 established within this Franchise are followed.
4.6 Leased Access Channel Rates
Upon a bona fide request, as defined by the FCC, by a Person pursuing a
Leased Access Channel, 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 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) 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.
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Cable Television Franchise
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
(A) Indemnification: Grantee shall defend, indemnify and hold the City,
its officers, officials, employees, agents and volunteers harmless from any and
all claims, injuries, damages, losses or suits, including all legal costs and
attorney fees, arising out of or in connection with the performance of this
Franchise to the extent of the negligent acts or omissions of Grantee, except for
that portion of the injuries and damages caused by the City's negligence.
The City's review or acceptance of any of the work when completed shall not be
grounds to avoid any of these covenants of indemnification.
In the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of
Grantee and the City, its officers, officials, employees, agents and volunteers,
Grantee's liability hereunder shall be only to the extent of the Grantee's
negligence.
It is further specifically and expressly understood that, solely to the extent
required to enforce the indemnification provided herein, Grantee waives its
immunity under RCW Title 51; provided, however, the foregoing waiver shall not
in any way preclude Grantee from raising such immunity as a defense against
any claim brought against Grantee by any of its employees. This waiver has
been mutually negotiated by the parties.
(B) Indemnification for Relocation 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, except for
such damages caused by the City's negligence.
(C) Additional Circumstances Grantee shall also indemnify, defend
and hold the 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 franchisees /licensors of programs to be
delivered by the Cable System.
(D) Procedures and Defense If a claim or action arises pursuant to
sections 5.1(A), 5.1(B) or 5.1(C), the City shall tender the defense of the claim or
action to Grantee, which defense shall be at Grantee's expense. The City may
participate in the defense of a claim and, in any event, Grantee may not agree to
any settlement of claims financially affecting the City without the City's written
approval.
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Cable Television Franchise
(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 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
Grantee and 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 and
the City shall discuss in good faith a mutually satisfactory resolution.
(H) The grant of this Franchise shall have no effect on 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 and
employees as additional insureds. Limits of insurance in no way serve as
limitations of liability.
(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, 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 will provide that, should any of the above described
policies be cancelled before the expiration date thereof, the issuing insurer shall
endeavor to mail 30 days written notice (10 days if due to non - payment of
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Cable Television Franchise
premium) to the certificate holder, but failure to do so will impose no obligation or
liability of any kind upon the insurer, its agents or representatives. If the
insurance is canceled or terminated 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. 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 defend and 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.
(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 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, volunteers, and employees as it relates to this
Franchise. 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.
(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 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.
Grantee hereby warrants that its insurance policies satisfy the requirements of
this Franchise.
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Cable Television Franchise
5.3 Security
(A) Grantee shall provide a performance bond in the amount of two
thousand dollars ($2,000) 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, pay franchise fees
and 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 as approved by the City's
Risk Manager. 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.
(B) The bond(s) shall provide that the bond(s) shall not be cancelled or
materially altered so as to be out of compliance with the requirements of this
subsection without thirty (30) days written notice first being given to the City. If
the bond(s) is /are cancelled or materially altered so as to be out of compliance
with the requirements of this subsection, Grantee shall provide replacement
bond(s). Grantee agrees to maintain continuous uninterrupted bonds in the
amounts required for the duration of this Franchise or thereafter as specified in
this Franchise.
(C) The bond(s) referred to in Section 5.3 (A) may be drawn upon by
the City for breach of a material provision of this Franchise after 30 days notice
and opportunity to cure. If such cure cannot be reasonably accomplished within
30 days of such notice, Grantee shall have a reasonable time to cure, provided
that Grantee commences such cure within such 30 days and diligently pursues
such cure to completion.
If Grantee fails to cure the material breach as specified above, 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) to the amount required under this Franchise. Grantee's maintenance of
the bond(s) shall not be construed to excuse unfaithful performance by Grantee
or to limit the liability of Grantee to the amount of the bond(s) 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 was drawn upon
improperly. Grantee shall also have the right of judicial appeal if Grantee
believes a bond has not been properly drawn upon in accordance with this
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Franchise. Any funds the City erroneously or wrongfully withdraws from the
bond(s) shall be returned to Grantee with interest from the date of withdrawal.
(D) Grantee agrees to maintain continuous uninterrupted bond(s) in the
amounts required for the duration of this Franchise or as otherwise specified in
this Franchise.
(E) Grantee shall have the right to appeal to the City for reimbursement
in the event Grantee believes that the bond was drawn upon improperly. Such
appeal shall be made within fifteen (15) business days of the date Grantee has
been notified in writing of the withdrawal. Appeal shall be made to the City's
designated contact. The appeal shall be accompanied by a written letter outlining
the nature and circumstances of the appeal and any applicable franchise
provisions. After a determination by the City, Grantee shall also have the right of
judicial appeal if Grantee believes the bond has not been properly drawn upon in
accordance with this Franchise. Any funds the City erroneously or wrongfully
withdraws from the bond 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.
(F) Failure to follow any of the procedures outline in section 5.3(F)
shall result in the Grantee's waiver of any claims related to withdrawal of funds
from the performance bond.
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)
Grantee shall at all times during the term of the Franchise maintain within Kitsap
County 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.
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 or designated representative, 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
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Cable Television Franchise
matters that may be the subject of an inspection by the City shall be retained by
the Grantee for a minimum period of six (6) years.
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.
Grantee agrees to provide all information reasonably required to verify
compliance with the material terms of the Franchise. The 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 that is 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 the City receives a demand from
any Person for disclosure of any information designated by Grantee as
confidential, the 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 directly impact the operation of the Cable System in
the Franchise Area.
(C) A list of Grantee's Cable Services, rates and Channel line -ups in
the Franchise Area;
(D) A compilation of written Subscriber complaints actions taken in the
Franchise Area and resolution.
(E) Financial records as referred to in Section 3.
7.4 Complaint File and Reports
Grantee shall keep an accurate and comprehensive compilation of any and all
written Customer complaints received and Grantee's actions in response to
those complaints, in a manner consistent with the privacy rights of Subscribers.
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7.5 Inspection of Facilities and Annual Meeting
The City may inspect any of Grantee's facilities and equipment located in the
Rights -of -Way in the Franchise Area or on other public property at any
reasonable time during Normal Business Hours upon at least seventy -two (72)
hours notice to Grantee, or, in case of emergency, upon demand without prior
notice.
7.6 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 for such material breach.
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;
(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 applicable
State and Local laws 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
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Cable Television Franchise
shall inform its Subscribers of the availability of the lockout device at the time of
their initial subscriptions and periodically thereafter.
8.6 Cable Guide
Grantee will assure BKAT (Bremerton Kitsap Access Television) programming is
listed on the Cable Guide on WAVE channels and website. The City will provide
programming information to designee on a timely basis.
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.
Additionally, Grantee shall make available at no charge one (1) additional
digital 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 programming.
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 to ensure that delivery of Access Video Programming signals is
not diminished or adversely affected. 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.
9.2 Triggers for Additional Access Channel
Pursuant to Section 9.1 (Access Channels), the City may require Grantee to
make available an additional digital 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.
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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 an Access Channel fails to
meet the continuing criteria of programming usage set forth in section 9.2, i.e.,
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, for one hundred eighty (180) continuous days of operation,
such Access Channel will revert to Grantee for whatever use it deems
appropriate.
9.5 Access Channel Identification /Location /Relocation /Bill 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 include notice of such relocation in its
marketing materials in the Franchise Area.
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) Nothing in this section alters Grantee's Channel obligations for Access
programming delivered to Subscribers within the Franchise Area.
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Cable Television Franchise
(C) 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.
(D) City agrees that any equipment and construction costs borne by
Grantee in connection with the obligation to provide for Access Channel
Interconnection shall be considered "external costs" as such term is used in
47 C.F.R. Section 76.922(f) on the date of this Franchise, and as such, the costs
are 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
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 then remit to the City (the "Capital
Contributions "). Grantee's Capital Contribution payments to City shall be
remitted 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. The Capital
Contributions may only be applied by the City toward capital expenditures
consistent with applicable law.
Grantee shall not be responsible for paying the Capital Contributions with
respect to exclusions to Gross Revenues, as defined in the "Gross Revenues"
definition in section 1 of this Franchise. The City can inquire as to the status of
any such exclusions, 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.
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.
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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.
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 reasonably minimal 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 the City
with a construction schedule for work in the Rights -of -Ways as required by the
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
the City, and give appropriate notices to the City, and Grantee shall pay all
applicable fees upon issuance of the requisite construction permits by the 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, and notify the City by
calling the Public Works and Utilities Hotline at (360) 473 -5920 if digging in the
right -of -way or interrupting traffic.
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10.2 Location of Facilities
Within five (5) business days or such longer period made necessary by the
availability of a third party locating company, 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. The 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. The 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.
10.4 Maintenance and Workmanship
(A) Grantee's Cable System shall be constructed and maintained in
such manner as not to interfere unreasonably 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 -Way 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.
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Cable Television Franchise
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 cable television 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 to be used in conjunction with the operation of a cable
television system, 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, unless the City has removed or
relocated facilities of other similarly situated users of the public Rights -of -Way or
compensated said users for such removal or relocation. In such situations,
Grantee shall be entitled to equivalent removal or relocation treatment as those
other similarly situated users. 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.
(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,
following 30 business days notice by the City or such longer period
necessary to obtain required permits or perform major construction,
redesign or any other major removal, replacement, relocation or
modification, 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 reasonable
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Cable Television Franchise
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 by City
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 City Rights -of -Way, Grantee shall, without delay
or expense to City, remove its facilities from such Rights -of -Way, and reasonably
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 reasonable schedule set by City. Until such
time as Grantee removes or modifies the facility as reasonably directed by City,
Grantee shall be 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.
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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) As used herein, the term "Hazardous Substances" shall mean any
substance or material now or hereafter defined or regulated as a hazardous
substance, hazardous - waste, toxic substance, pollutant, or contaminant under
any federal, state or local law, regulation, or ordinance governing any substance
that could cause actual or suspected harm to human health or the environment
(Environmental Law). The term "Hazardous Substance" specifically includes but
is not limited to, petroleum, petroleum by- products, and asbestos. Grantee
agrees to indemnify, defend and hold City harmless from and against any and all
claims, liabilities, losses, penalties, remediation costs and expenses (including
attorney's and consultant's fees and costs) that City may incur or have assessed
against it as a result of any actions of Grantee resulting in the presence of any
Hazardous Substance in, on, or under the property which violates any
Environmental Law at any time, unless such liabilities are the result of the City's
negligence or willful omission.
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 unless the City has provided compensation to similarly situated users of the
Rights -of -Way for such underground wiring, in which case Grantee shall be
entitled to equivalent compensation. 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 reasonably possible.
(3) This Franchise does not grant, give or convey to 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
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Cable Television Franchise
to the City in accordance with the City's permitting process so that cost sharing
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.
(5) The City shall not be required to obtain easements for
Grantee.
(6) 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 the
provision of Cable Service, Grantee shall reasonably restore the property
to its former condition. Rights -of -Way or other City property shall be
restored in a manner and within a reasonable 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 written notice to Grantee, or without
notice where the disturbance or damage may create a risk to public
health, safety or welfare, cause the repairs to be made at Grantee's
expense and recover the cost of those repairs from Grantee. Within thirty
(30) days of receipt of an itemized list of those costs, including the costs
of labor, materials and equipment, 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 adhere to all building and zoning codes currently in effect and
hereinafter amended. 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
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Cable Television Franchise
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 subject to City approval.
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 as defined by
the International Society of Arboriculture in accordance with such permit, any
tree in the Rights -of -Way that interferes with the Cable System.
10.14 Standards
(A) Grantee must comply with all applicable 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 unreasonably interfere with the travel and use of public places by the
public during the construction, repair, operation or removal thereof, and shall not
unreasonably obstruct or impede traffic.
10.15 Stop Work
On notice from the City that any work is being conducted contrary to the material
provisions of this Franchise, or in substantial 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.
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Cable Television Franchise
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 auto -cat format. All
updates of the records shall be submitted to the City Public Works & Utilities
Department within thirty (30) days upon written request, no more than once per
year.
SECTION 11. CABLE SYSTEM DESIGN
(A) 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
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Cable Television Franchise
Effective Date, the City is not permitted to require the provision of specific Video
Programming pursuant to this subsection.
SECTION 12. TECHNICAL STANDARDS
12.1 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.
12.2 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 written 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 written 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 reasonably
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 13. STANDBY POWER AND EAS
13.1 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.
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Cable Television Franchise
13.2 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 in
accordance with FCC regulations.
SECTION 14. FRANCHISE BREACHES; TERMINATION OF
FRANCHISE
14.1 Procedure for Remedying Franchise Violations
(A) If City reasonably believes that Grantee has repeatedly failed to
perform any material obligation under this Franchise or has repeatedly 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 to cure the default and notify 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 the 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
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Cable Television Franchise
hearing, the City shall not unreasonably limit Grantee's opportunity to make a
record that may be reviewed should any final decision of the 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 the 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 the City shall determine. In the event Grantee does not cure within such time
to City's reasonable satisfaction, the City may:
(1) Terminate this Franchise; and
(2) 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 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.
14.2 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.
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Cable Television Franchise
14.3 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 abandons the Cable System or terminates the
Cable System's operations;
(4) Grantee fails to restore service to the Cable System after
three consecutive days of an outage or interruption in service to all Subscribers;
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
(5) 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 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 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.
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Cable Television Franchise
SECTION 15. FRANCHISE TRANSFER
15.1 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 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) The City's consent to a sale, transfer or change in control shall not
be unreasonably withheld.
(G) 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
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Cable Television Franchise
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.
(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 intra- company Affiliate ,
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 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 16. PROHIBITED PRACTICES, LOCAL EMPLOYMENT
EFFORTS AND NOTICES
16.1 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.
16.2 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:
Wave Division IV, LLC.
401 Kirkland Park Place, Suite 500
Kirkland, WA 98033
Attn. Jim Penney
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Cable Television Franchise
With a Copy To:
4519 S.E. Mile Hill Drive
Port Orchard, WA 98366
Attn. Michael Talpai
City's address shall be:
City of Bremerton, Washington
3456 th Street, Suite 600
Bremerton, Washington 98337
Attention: City Clerk
SECTION 17. MISCELLANEOUS PROVISIONS
17.1 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 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.
17.2 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.
17.3 Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted
successors and assigns.
17.4 Authority to Amend
This Franchise may be amended at any time by written agreement between the
parties.
17.5 Venue
The venue for any dispute related to this Franchise shall be in an appropriate
court of competent jurisdiction.
17.6 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
48
Cable Television Franchise
other applicable local, State and federal laws, rules, and regulations, as
amended. The Grantee specifically agrees to comply with the provisions of City
ordinances.
17.7 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.
17.8 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.
17.9 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.
17.10 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.
17.11 Compliance with Federal, State and Local Laws
Grantee shall comply with applicable federal, state and local laws, now existing
or hereafter adopted.
17.12 Force Majeure
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 reasonable 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, delays caused by
failure of the City or utilities to provide permits in a timely manner, 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.
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Cable Television Franchise
17.13 Entire Agreement
This Franchise and Exhibit I 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.
17.14 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.
17.15 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.
17.16 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.
SECTION 18. SEVERABILITY
If any one 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 19. EFFECTIVE DATE.
This ordinance shall take effect and be in force ten (10) days from and after its
passage, approval and publication as provided by law.
PASSED by the City Council the .!/,� day of , 2009
CECIL MCCONNELL, Co ncil President
50
Cable Television Franchise
Approved this day of rp „�,Itlt/ , 2009.
PAfTY LENT, ayor
ATTEST: APPROVED AS TO FORM:
CAROL VETGEN, aity Clerk R ER A. LUBOVIC ,City
Attorney
PUBLISHED the day of , 2009.
EFFECTIVE the e J(d j ; day of , 2009.
ORDINANCE NO.
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Cable Television Franchise
CITY COUNCIL
CITY OF BREMERTON, WASHINGTON
In the matter of the application
of Wave Division IV, LLC Franchise Ordinance No. ,Tln
for a franchise to construct, operate
and maintain facilities in, upon,
over under, along, across and
through the franchise area of the ACCEPTANCE
City of Bremerton,
Washington. ;
WHEREAS, the City Council of the City of Bremerton, Washington, has
granted a franchise to Wave Division IV, LLC its successors and assigns, by
enacting Ordinance No. 6 _ bearing the date of , . 2009; and
WHEREAS, a copy of said Ordinance granting said franchise was received
by the Wave Division IV, LLC on bme %V" 31 2009, from said City of
Bremerton, Kitsap County, Washington.
NOW, THEREFORE, Wave Division IV, LLC, 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 Wave Division IV, LLC has caused this
written Acceptance to be executed in its name by its undersigned
Viw'Qres1A*A, thereunto duly authorized on this S1 ft day of
2009.
ATTEST: WAVE DIVISION IV, LLC
By:
Its: y�iCet�r — x. ale le. bra t �4.iL
52
Cable Television Franchise
EXHIBIT I
CUSTOMER SERVICE STANDARDS
SECTION 1. 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 continuous and substantial 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, not including hold time, after the Subscriber has
selected his or her option when an automated response system is used by
Grantee,. 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 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 Grantee, 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 unless such damages were
caused by the negligence or willful misconduct of the property owner.
(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.
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(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.
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