HomeMy WebLinkAbout3967
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Contract Transactions
3967
WAVEDIVISION
CABLE SYSTEM
ADMIN SVCS
FRN
IV LLC (FORMERLY CHARTER & FALCON)
OPERATION & MAINTENANCE ORD #4635
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Insurance
Type Amount
GL $2000000.00
AL $1000000.00
Amount
Begin Date
End Date
Review Date
12/09/1998 -.-
12/08/2008 =f
02/15/2005 =f
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Insurance Total
Insurance Review Date
$3000000.00
03/01/2005
Comments
FILE CLASSIFICATION CHANGED
LEG 16-5 FRANCHISES 1AC/6AC (POSSIBLE ARCHIVE VALUE)
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.. CHANGE Contract Transactions +
T Contract Number 3967
tVendor Name WAVEDIVISION IV LLC (FORMERLY CHARTER & FALCON)
"Subject CABLE SYSTEM OPERATION & MAINTENANCE ORD #4635
"Department ADMIN SVCS
"Status Code FRN
Insurance
Type Amount
GL $5000000.00
AL $1000000.00
Amount
Begin Date
End Date
Review Date
12/09/1998
12/08/2008 ..
12/01/2007
Insurance Total
Insurance Review Date
$6000000.00 ..
11/01/2003
Comments
FILED LEG 16-5 RES 2909-CHANGE CONTROL TO WAVE-9/24/03
T
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RESOLUTION NO. 2905
A RESOLUTION of the City Council of the City of
Bremerton, Washington, approving the proposed assignment and
conveyance of thc cable television system franchise from Charter
Communications Holding Company's to Wave Division IV, LLC
and further approving the sale and conveyance of the membership
and other ownership interests in Wave Division IV, LLC to
WaveDivision Holdings, LLC.
WHEREAS, pursuant to Ordinance No. 4635, with an effective date of December
9, 1998, the City granted to Falcon Video Communications, L.P. ("Falcon") the authority to
install, construct, operate and maintain a cable television communications system within the City
(the "Franchise"); and
WHEREAS, Falcon subsequently was acquired by Charter Communications
Holding Company, LLC ("Charter", Falcon and Charter being referred to herein as Charter) with
the consent of the City as expressed in Resolution No. 2724, dated August 18, 1999; and
WHEREAS, Charter entered into a purchase and sale agreement, dated May 29,
2003 (the "Purchase Agreement") with WavcDivision Holdings, LLC, a Delaware limited
liability company ("Wave Holdings"), for thc sale of Charter's cable television system serving
the City and adjacent areas, pursuant to which (i) the Franchise will be assigned and conveyed
from Charter to WaveDivision IV, LLC, a Washington limited liability company ("Wave IV'%
which as of the date of such assignment and conveyance will be wholly-owned by Charter, and
(ii) immediately following such assignment and conveyance of the Franchise, Charter will sell
and convey all of the membership and other ownership interests in Wave IV to Wave Holdings
(the "Transaction"); and
WHEREAS, Charter and Wave Holdings request that the assignment and
conveyance of the Franchise from Charter to Wave IV and the sale and conveyance of the
membership and other ownership interests in Wave IV to Wave Holdings immediately thereafter,
as described above, be approved;
WHEREAS, Wave IV and Wave Holdings have demonstrated the financial,
technical and legal qualifications to operate the cable system serving the City and it is in the best
interests of the City and its citizens to consent to the foregoing assignment and sale; NOW
THEREFORE,
THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHiNGTON,
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION1. The City hereby consents to the assignment and conveyance of the
Franchise from Charter to Wave IV and the sale and conveyance of the membership and other
ownership interests in Wave IV to Wave Holdings immediately thereafter, as described above.
1
Cable Franchise Transfer
SECTION2. The City hereby consents to and approves Wave IV's grant of a
security interest in all of the franchisee's rights, powers and privileges under the Franchise and
Wave IV's grant ora security interest in all of its other properties to such lender or lenders as
may be designated by Wave IV for financing purposes from time to time, and to Wave Holdings'
grant of a security interest in its rights in and to Wave 1V to such lender or lenders as may be
designated by Wave Holdings for financing purposes from time to time.
SECTION3. Except as expressly described herein, the assignment and
conveyance of the Franchise and the sale and conveyance of thc membership and other
ownership interests in Wave IV shall not alter, affect or otherwise change any of the terms or
conditions of the Franchise.
SECTION4. In connection herewith, the City certifies to each of Charter, Wave
IV and Wave Holdings that:
(a) The Franchise was duly and validly issued by the City, and upon its assignment
and conveyance to Wave IV, the duly authorized franchisee will be Wave IV.
(b) The Franchise has not been amended other than by Resolution No. 2724, is in full
force and effect as of the date hereof, and is valid and enforceable in accordance with its terms.
(c) The City acknowledges that the cable system has been upgraded to the standards
set forth in Section 4.3 of the Franchise and, accordingly, the expiration date of the Franchise has
been extended for a period of two years in accordance with Section 2.2 so that the Franchise will
not expire until December 9, 2008.
(d) To the City's knowledge, no event of default under the Franchise, and no event
which could become an event of default with the passage of time or the giving of notice, or both,
has occurred and is continuing as of the date hereof.
(e) The City acknowledges receipt of a duly completed FCC Form 394 in connection
with the Transaction.
(f') The City acknowledges that it has not requested the franchisee to pay a franchise
fee to the City pursuant to Section 11.1 of the Franchise.
SECTIONS. The Franchise, Resolution 2724, and this Resolution were and are
made, passed or adopted in accordance with all applicable notice and procedure requirements
under the laws of the Washington of Washington, and with all applicable notice and procedure
requirements proscribed by the City, and do not conflict with the laws, ordinances, resolutions
and other regulations of the City, as presently in effect or as the same were in effect at the time
the particular action was taken.
SECTION6. The City acknowledges that Wave Holdings and Wave IV shall
only be responsible for obligations of the franchisee under the Franchise that accrue from and
after the date of the closing of the Transaction and the assignment of the Franchise to Wave IV.
SECTION 7. The City acknowledges that Charter shall remain responsible for
obligations of the franchisee under the Franchise that relate to the period prior to the date of the
2
Cable Franchise Transfer
closing of the Transaction and the assignment of the Franchise to Wave IV, but that Charter will
be released and discharged by the City from any obligations of the franchisee under the Franchise
that relate to the period from and after the date of the closing of the Transaction and the
assignment of the Franchise to Wave IV.
SECTION 8. Effective Date.
(1) This Resolution shall not be effective until the City Receives payment of
$2,000.00 for the cost of assessing the legal, financial and technical qualifications of the
proposed Transferee in order to determine whether the City would consent to the proposed
franchise transfer. This requirement is made pursuant to section 2.7 of the cable television
franchise.
(2) This Resolution shall not be effective until accepted in writing by Wave
IV. The acceptance, which shall be contingent upon final closing of the Transaction, shall be in
the form attached hereto as Exhibit A.
(3) Within thirty (30) days of final closing of the Transaction, Wave IV shall
file with the Finance Director such written acceptance of this Resolution in the form attached
hereto as Exhibit A.
(4) A failure on the part of Wave IV to file such written acceptance and
documentation within such time shall be deemed an abandonment and rejection of the rights and
privileges conferred hereby and this Resolution shall thereupon be null and void. Such
acceptance shall be unqualified and shall be construed to be an acceptance of all the terms,
conditions and restrictions contained in this Resolution.
.S. ECTION9. S__everabilit~. If any one or more sections, subsections, or
sentences of this Resolution are held to be unconstitutional or invalid, such decision shall not
affect the validity of the remaining portion of this Resolution and the same shall remain in full
force and effect.
PASSED by the City Council of the City of Bremerton, Washington this 24th day of September,
2003.
CAROL ARENDS, Council President
RSLEGAL~Resolutions\Cable Franchise Transfer. DOC
Cable Franchise Transfer
ACCEPTANCE
Finance Director
City of Bremerton
239 Fourth Street
Bremerton, Washington 98337
This is to advise the City of Bremerton, WaveDivision IV, LLC hereby accepts the terms
and conditions of Resolution No. 2095, passed by the City Council on September 24, 2003,
consenting to assignment and conveyance of the cable television system franchise Ordinance No.
4635 from Falcon Video Communications, L.P. and Charter Communications Holding Company
to WaveDivision IV, LLC and further approving the sale and conveyance of the membership and
other ownership interests in Wave Division IV, LLC to WaveDivision Holdings, LLC.
WaveDivision IV, LLC, as the franchisee, agrees to abide by, each and every provision of
Ordinance No. 4635 and all other applicable ordinances of the City of Bremerton, and to such
contracts, agreements, side letters, and other commitments that are in writing and to which
WaveDivision IV, LLC is a party and has agreed to be bound, subject in all cases to applicable
federal, state and local law.
WAVEDIVISION IV, LLC
St~f'B.~X~Veed, Chief Executive Officer
Date: October 1, 2003
STATE OF WASHINGTON )
)ss
COUNTY OF KING )
This Acceptance was acknowledged before me on the [ ~ day of 0 earok~ ,2003, by
STEVEN B. WEED as the Chief Executive Officer and a duly auth(i~seniative of
WaveDivision IV, LLC.
~. :, o ~ ~ ~ ~ Notary Public for the State of .Wasllington
~ '-. 0fiSt.lO .: $ My Commission Expires:
-
& Hempelmann, P.S.
October 8, 2003
Ms. Paula Johnston, Deputy Clerk
City of Bremerton
239 - 4th Street
Bremerton, WA 98337
Re: Cable TV Franchise
Dear Paula:
This letter will confirm that on October 1, 2003, the two-step closing of the transaction
approved in the City's Resolution No. 2095 was completed. Accordingly, WaveDivision IV,
LLC is the cable franchisee serving the City of Bremerton under Ordinance No. 4635.
Following up on the two matters outstanding with respect to the closing, enclosed are:
1. The Acceptance in the form required by Resolution No. 2095, duly executed on
behalf of WaveDivision IV, LLC; and
2. WaveDivision IV, LLC's check number 2926 in the amount of $2,000 made
payable to the City of Bremerton in payment of the franchise transfer fee required under
Resolution No. 2095.
Once again, thank you very much for your help in getting this franchise transfer
completed in a timely manner. Please don't hesitate to contact me if you have any questions.
JAP:sed
Enclosures
Law O~fices
524 Second Avenue, Suite 500 Jt;enne~cairncross. com
direct: (206) 254-44.52
Seattle, Washington 98104 2323 {00175874.DOC;I }
Phone: 206~587 0700 .Fax: 206-587-2308
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+Found: 5 Record(s) MAINTAIN Contract Transactions +
+ Contract Number 3967 +
+ +
+Vendor Name CHARTER COMMUNICATIONS (FORMERLY FALCON) +
+Subject CABLE SYSTEM OPERATION & MAINTENANCE ORD #4635 +
+Department ADMIN SVCS +
+Status Code FRN +
+ Amount +
+ Begin Date 12/09/1998 +
+ Insurance End Date 12/08/2008 +
+ Type Amount Review Date 12/01/2007 +
+ GL $5000000.00 +
+ AL $1000000.00 +
+ +
+ Insurance Total $6000000.00 +
+ Insurance Review Date 11/01/2003 +
+ +
+ Comments FILED LEG 16-5 +
+ +
+ +
SEP-20-@@ 02:2 PM NO. P, O /OS
RESOLUTION NO.
A RESOLUTION approving the change of control of Falcon
Video Communications, L.P., holder of a Cable Franchise in
Bremerton, Washington, to Charter Communications Holding
Company, LLC
WHEREAS,
1. Falcon Video Communications, L.P. ("Franchisee") holds a valid franchise to operate a
cable television system in Bremerton, WA ("Franchising Authority") issued by City of Bremerton
Ordinance No. 4635, passed by the City Council on November 4, 1998.
2. Charter Communications, Inc. ("CCI") and certain affiliates of the Franchisee (including
the Franchisee's ultimate parent company, Falcon Communications, LP., ("Falcon") have entered
into a Purchase and Contribution Agreement (the "Agreement") dated May 26, 1999, pursuant to
which CCI's affiliate, Charter Communications Holding Company, LLC ("Charter"), will acquire
control of Falcon.
3. Section 2.7 and 2.8 of the Falcon/Bremerton franchise prohibit a franchise transfer or
change in control without the prior written consem of the City of Bremerton. Section 2.7 ofthe
franchise provides that the City of Bremerton may condition a transfer upon such terms and
conditions related to the technical, legal, and financial qualifications of the prospective transferee
to perform according to the terms of the Franchise as the City deems appropriate, including those
conditions deemed necessary by the City to ensure the strict performance of the requirements of
the franchise.
4. The proposed change in control of Falcon is subject to the requirements of the Cable
Communications Policy Act of 1992 ("1992 Cable Act"), and applicable implementing regulations
of the Federal Communications Commission 0'FCC"). Falcon and Transferee filed FCC Form
394 pursuant to the 1992 Cable Act and FCC regulations, which was received by the City of
Bremerton on June 25, 1999. In conjunction with such filing, Falcon and Charter have stated that
the filing involves only a change in control at the parent level of Falcon, that the Franchisee will
continue to hold the Falcon/Bremerton franchise, that local management and employees of Falcon
will remain in place after the change in control, and that all commitments, obligations, and
liabilities will remain in place, whether or not such commitments, obligations, or liabilities pre-
dated the consummation of the proposed change in control.
5. It is recommended that the City approve the transfer of control subject to certain
conditions, including: (a) assurances regarding Transferee's obligation to cause Franchisee to
comply with all existing Falcon/Bremerton franchise requirements; (b) documentation of
Transferee and Falcon corporate organization and proxy statements issued in connection with the
merger; (c) assurances regarding completion of current Falcon/Bremerton upgrade; (d) assurances
SE?-20-99 HON 02:24 PM FA× NO, P, 04/06
regarding construction and completion of Bremerton institutional network commitments; (e)
commitmems to comply with all applicable laws regarding nondiscriminatory access to
Franchisee's proposed lnternet cable modem platform and services; (f) commitments to comply
with all applicable laws regarding commercial leased access; (g) reimbursement of all direct, out-
of-pocket costs of the City incurred in analyzing and acting upon change of control request; and
(h) compliance with all other applicable legal requirements, including carriage of broadcast digital
and high definition television signals, and interconnection of cable system with potential
competitors for purposes of sharing cable PEG channels, to the extent required by the
Falcon/Bremerton franchise agreement.
6 The City should approve the change in control of the Falcon/Bremenon franchise to
Transferee subject to the formal acceptance by Transferee of the conditions set forth in this
Resolution.
BE IT RESOLVED by the City Council of the City of Bremerton that:
a. The City of Bremerton hereby approves the transfer of control of the cable franchise of Falcon
Video Communications, LP., Ordinance No. 4635 passed by the Council November 4, 1998 to
Transferee subject to the following conditions:
(1) Compliance with franchise. Transferee shall cause Franchisee to comply, with the lawful
requirements of the Falcon/Bremerton franchise, including all applicable ordinances, orders,
contracts, agreements, commitments, side letters, and regulatory actions taken pursuant thereto,
including but not limited to system upgrade commitments, support for Public, ]Educational, and
Governmental (PEG) cable access; and institutional network construction requirements in all
respects and without exception.
(2) Organization and proxy statements. Within thirty (30) days of the earlier of closure of the
merger transaction or public release of the requested information, Transferee shall submit (a)
updated Transferee and Falcon corporate organization charts; and (b) all publicly available proxy
statements issued in connection with the merger.
(3) Non-discriminatory access to cable modem platform. Transferee shall comply, and cause
Franchisee to comply with all lawful federal, state and local legal requirements with respect to
nondiscriminatory access, to the Franchisees' cable modem platform for providers of Internet and
on-line services, whether or not such providers are affiliated with Transferee or the Franchisee.
So long as cable modem services are deemed to be "cable services", as provided under Title VI of
the Communications Act of 1934, as amended. Transferee and the Franchisee shall comply with
all lawful requirements regardin8 such services, including but not limited to, the inclusion of
revenues from cable modem services and access within the gross revenues of the Franchisee's
cable franchise.
(4) Commercial Leased A¢c¢~,~,. Transferee shall comply and cause Franchisee to comply with
all lawful federal, state and local requirements with respect to commercial leased access.
S~P-20-99 MON 02:2~ PM F~× ~0, P. 05/0~
(5) Reimbursement of costs. Upon invoice by the City, Franchisee shall within thirty (30)
days of the invoice reimburse all reasonable direct, out-of-pocket costs of the City incurred in
analyzing and acting upon Transferee's change of control request, not to exceed $2,500.
Payment of such reimbursement shall accompany the form of written acceptance, as provided in
subsection c., below.
(6) Compliance with all other applicable legal requirements. Transferee shall cause the
Franchisee to comply, with all other applicable legal requirements that are now or may hereaftter
apply to Falcon's/Bremerton's cable operations, including, but not limited to, carriage of
broadcast digital and high definition television signals, interconnecfion of cable system with
potential franchised cable competitors for purposes of sharing cable PEG channels, and adherence
to applicable federal and state emergency notification provisions to the ex tent required by the
Falcon/Bremerton Franchise agreement~
(7) Responsibility for any non-compliance by franchisee. Franchisee agrees that as a result of
approval of this transfer transaction, the City has not waived or diminished any compliance
enforcement rights it possessed prior to the approval of the transfer transaction. All such rights
are enforceable against Franchisee pursuant to paragraph 6 (a) (1) above.
b. Written acceptance.
(1) This resolution shall not be effective until accepted in writing by Transferee. The
acceptance, which shall be contingent upon final closing of the transaction shall be substantially
similar in form to that attached hereto as Exhibit I.
(2) Within thirty (30) days after passage of this resolution by the Council, Transferee shall file
in the Office of the Administrative Services Director such written acceptance of this resolution
meeting the approval of the City Attorney.
(3) A failure on the part of Transferee to file such written acceptance within such time shall be
deemed an abandonment and rejection of the rights and privileges conferred hereby and this
resolution shall thereupon be null and void~ Such acceptance shall be unqualified and shall be
construed to be an acceptance of all the terms, conditions and restrictions contained in this
resolution.
c. Automatic nullification in event of failure to close or closure on materially different terms. In
the event the transaction which is the subject of this resolution is not consummated or does not
reach final closure for any reason, or in the event such closure is reached on terms substantially
and materially different to the terms described in the FCC Form 394 and subsequent information
provided by the Transferee and relied upon by the City, then this resolution, together with the
written acceptance provided hereunder, shall be null and void.
SEP-20-99 MON 02:26 PM ?~× NO, P, 06/06
PASSED by the City Council of the City of Bremerton this ~ day of~,
1999.
MI I~f'Si-I~EPI~It~D, Council President
SEP-20-99 MON 02:23 PM FRX NO, P, 02/06
EXHIBIT I
ACCEPTANCE
Director of Administrative Services
City of Bremerton
239 Fourth Street
Bremerton, Washington 98337
This is to advise the City of Bremerton, Washington that Charter Communications, Inc. hereby
accepts the terra~ and provisions of Resolution No. 2724, passed by the City Council on
August 18, 1999, consenting to a change in control of Falcon Cable franchise to Charter
Communications, with conditions. Charter Communications agrees to abide by, and to cause
Charter Communications and its subsidiaries and affiliates to abide by, each and every provision of
the franchise agreements, including all applicable ordinances, orders, contracts, agreements, side
letters, commitments, and regulatory actions taken pursuant hereto, as applicable, and without
exception.
Date: ~- ,;Tf-~Sq
State of /¢? C )
) SS.
Countyof 54 Loc,~5 )
This Acceptance was acknowledged before me on the .2 t ~ ~ day of _~-e/o ~,~ ~ ~ b~~ ,
duly authorized offi~r ofC~er Commu~cations Holding Company, LLC.
Nota~ Public for
BREMERTON CABLE FRANCHISE
Falcon
1998
Passed by City Council - November 4, 1998
Effective Date - December 9, 1998
TABLE OF CONTENTS
ORDINANCE NO. 4635
EFFECTIVE DATE: 12/9/98
1. SECTION 1 - DEFINITIONS
1.1 "ACCESS CHANNEL" OR "PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS
(PEG) CHANNEL" .................................................. 1
1.2 "ACCESS SERVICES" OR "PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS
(PEG) CHANNEL" .................................................. 2
1.3 "PEG ACCESS FACILITIES" .......................................... 2
1.4 "ACCESS RESOURCES" .............................................. 2
1.5 "ACTIVATED CHANNELS"
1.6 "ADDRESSABILITY"
1.7 "AFFILIATE"
......................................................
1.8 "BASIC SERVICE" OR "BASIC CABLE SERVICE"
1.9 "BI-DIRECTIONAL CAPABILITY" ...................................... 2
1.10 "CABLE ACT"
1.11 "CABLE SYSTEM"
1.12 "CABLE SERVICE"
.................................................
1AS "CHANNEL"
1.14 "CITY"
1.15 "EXPANDED BASIC SERVICE" ......................................... 3
1.16 "FRANCHISE"
1.17 "FRANCHISE AREA"
1.18 "FRANCHISE FEE"
1.19 "GROSS RECEIPTS"
1.20 "GRosS REVENUES"
................................................
1.21 "LNSTITUTIONAL NETWORK"
.........................................
1.22 "INTERACTIVE SERVICES" ........................................... 4
1.23 "INTERCONNECT OR INTERCONNECTION'
1.24 "LEASED ACCESS"
1.25 "PAY SERVICE OR PREMIUM SERVICE" ................................. 5
1.26 "PERSON"
1.27 "PUBLIC FACILITY" ................................................ 5
1.28 "SCHOOL"
1.29 "SuBsCRIBER"
1.30 "STREET"
1.31 "FALCON"
2. SECTION 2 - FRANCHISE
2.1 GRANT OF FRANCHISE
2.2 FRANCHISE TERM
2.3 FRANCHISE NON-EXCLUSIVE
2.4 NEW FRANCHISE
2.5 FRANCmSE RENEWAL .............................................. 6
2.6 PERIODIC PUBLIC REVIEW OF FRANCHISE ............................... 6
2.7 TRANSFER OF OWNERSHIP AND ASSIGNABILITY .......................... 6
2.8 CHANGE IN CONTROL ............................................... 8
2.9 REVOCATION
2.10 RECEIVERSHIP
2.11 EXPIRATION
2.12 RIGHT TO PURCHASE THE SYSTEM .................................... ! 0
2.13 RIGHT TO REQUmE REMOVAL OF PROPERTY ........................... 11
2.14 CONTINUITY OF SERVICE MANDATORY ................................ 12
2.15 SURVIVAL OF TERMS
2.16 COSTS OF FRANCHISE COMPLIANCE .................................. 12
3. SECTION 3 - OPERATION IN STREETS AND RIGHTS-OF-WAY ............. 13
3.1 USE OF STREETS
3.2 CONSTRUCTION OR ALTERATION ..................................... 13
3.3 NON-INTERFERENCE
3.4 CONSISTENCY WITH DESIGNATED USE ................................ 14
3.5 UNDERGROUNDING
3.6 RESTORATION
3.7 TREE TRIMMING
3.8 RELOCATION ..................................................... 15
3.9 MOVEMENT OF BUILDINGS .......................................... 16
3.10 SAFETY REQUIREMENTS ............................................ 16
3.11 TRAFFIC CONTROL ................................................ 16
4. SECTION 4 - SYSTEM DESIGN AND CAPACITY .......................... 17
4.1 AVAILABILITY OF SIGNALS AND EQUIPMENT ............................ 17
4.2 EQUAL AND UNIFORM SERVICE ...................................... 18
4.3 SYSTEM UPGRADE ................................................ 18
4.4 TECHNICAL STANDARDS ............................................ 21
4.5 PERFORMANCE TESTING ........................................... 22
4.6 INTERCONNECTION ................................................ 23
4.7 VIRTUAL HEADEND ................................................ 24
$. SECTION 5 - PROGRAMMING AND SERVICES ........................... 24
5.1 CATEGORIES OF PROGRAMMING
5.2 CHANGES IN VIDEO PROGRAMMING
BASIS FOR PROGRAMMING DECISIONS
5.4 OBSCENITY
PARITY OF SERVICE AND RATES ......................................
6. SECTION 6 - PUBLIC, EDUCATIONAL AND GOVERNMENT USE OF SYSTEM 26
6.1 PEG ACCESS
6.2 INSTITUTIONAL NETWORK
7. SECTION 7 - REGULATORY PROVISIONS ............................... 29
7.1 INTENT
7.2 DELEGATION OF AUTHORITY TO REGULATE ............................ 30
7.3 AREAS OF ADMINISTRATIVE AUTHORITY ............................... 30
7.4 REGULATION OF RATES AND CHARGES ................................ 30
7.5 REMEDIES FOR FRANCHISE VIOLATIONS ...............................
7.6 PROCEDURE FOR REMEDYING FRANCHISE VIOLATIONS ................... 31
7.7 ENYORCEMENT
7.8 FAILURE TO ENFORCE
7.9 FORCE MAJEURE
7.10 ALTERNATIVE REMEDIES
7.11 COMPLIANCE WITH THE LAW
8. SECTION 8 - REPORTING REQUIREMENTS .............................. 33
g.1 MONTHLY AND QUARTERLY REPORTS ................................. 33
8.2 ANNUAL REPORT
8.3 MONITORING AND COMPLIANCE REPORTS ............................. 35
8.4 ADDITIONAL REPORTS
............................................. 35
8.5 COMMUNICATIONS WITH REGULATORY AGENCIES .......................
8.6 PRESERVATION OF CON~'IOENTIAL INFORMATION ........................ 36
9. SECTION 9 - CUSTOMER SERVICE POLICIES ............................ 36
9.1 RESPONSE TO CUSTOMERS AND COOPERATION WITH CITY ................. 36
9.2 COMPLL~,NCE WITH FCC STA~OARDS ................................. 36
9.3 FAILURE TO IMPROVE CUSTOMER SERVICE ............................
9.4 REFUNDS FOR OUTAGES
9.5 TERMINATION OF SUBSCRIBER SERVICE ............................... 36
9.6 DEFINITION OF "COMPLAINT" ....................................... 37
9.7 CUSTOMER SERVICE AGREEMENT AND ~LacNUAL ........................ 37
10. SECTION 10 - LINE EXTENSION POLICY ............................. 37
10.1 STANDARD INSTALLATION .......................................... 38
10.2 ISOLATED AREAS
10.5 ANNEXED AREAS
11. SECTION 11 - COMPENSATION AND FINANCIAL PROVISIONS ......... 38
11.1 FRANCHISE FEES .................................................. 38
11.2 OPEN BOOKS AND RECORDS ......................................... 40
11.5 CONSTRUCTION PERFORMANCE BOND ................................. 40
11.4 FRANCHISE PERFORMANCE BOND .................................... 40
11.5 RECOURSE AGAINST BONDS AND OTHER SECURITIES ..................... 41
11.6 INDEMNIFICATION BY FALCON ....................................... 41
11.7 FALCON INSURANCE ............................................... 42
I1.8 TAXES
11.9 FIO, NCHISING COSTS .............................................. 43
12. SECTION 12 - MISCELLANEOUS PROVISIONS ........................ 43
12.1 POSTING AND PUBLICATION ......................................... 43
12.2 GUAI~O~TEE OF PERFORMANCE ...................................... 43
12.5 GOVERNING LAW AND VENUE ....................................... 43
12.4 SEPARABILITY ................................................... 43
12.5 CONSENT ........................................................ 43
12.6 ORDINANCES TERMINATED ......................................... 44
12.7 NO THIRD PARTY BENEFICIARIES .................................... 44
12.8 FRANCHISE ORDINANCE ACCEPTANCE ................................ 44
12.9 INDEPENDENT CONTRACTORS ....................................... 44
12.10 ENTIRE AGREEMENT .............................................. 44
12.11 SUCCESSORS AND ASSIGNS .......................................... 44
12.12 NOTICE
12.15 E~'¥ECTIVE DATE ................................................. 45
12.14 APPLICATION FEE ................................................ 45
12.15 FALCON RESPONSIBILITY FOR COMPL 'IANCE DocLrMENTATION ............. 45
F^LCON CABLE FRANCHISE
October 28, 1998
ORDINANCE NO. 4635
AN ORDINANCE granting a non-exclusive franchise to Falcon Video Communications
("Falcon") to operate and maintain a Cable System within the City of Bremerton ("CITY");
setting forth provisions, terms and conditions of the grant of franchise; providing for City
regulation and use of the Cable System; prescribing penalties for violation of franchise provisions;
and terminating, except as otherwise provided by this Ordinance, Ordinance Nos. 3976 and 3981.
BE IT ORDAINED BY the City of Bremerton that a Franchise is hereby granted to Falcon Video
Communications, to operate and maintain a Cable System in the City of Bremerton upon the
following express terms and conditions:
1. SECTION 1 - DEFINITIONS
For the purposes of this Franchise, and without affecting any purpose outside this Franchise, the
following terms, phrases, words, and their derivations shall have the meaning given herein. When
not inconsistent with the context, words used in the present tense include the future, words in the
plural number include the singular number, words in the singular number include the plural
number, and the use of any gender shall be applicable to all genders whenever the sense requires.
The words "shall" and "will" are mandatory and the word "may" is permissive. Where a term in
the Franchise is not defined in this Section and there is a definition for the term in the Cable
Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection
and Competition Act of 1992 and the Telecommunications Act of 1996 (hereinafter, collectively,
the "Cable Act"), the Cable Act as amended shall apply. Other terms in the Franchise which are
not defined in this Section shall be given their common and ordinary meaning.
1.1 "AccEss CHAN~L" OR "PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS (PEG)
CHANNEL"
Any Channel or portion of a Channel utilized for non-commercial programming, where
any individual or organization may be a programmer, without charge by Falcon, on a non-
discriminatory basis.
A. "Educational Access Channel" means any Channel or portion of a Channel available
for educational programming by individuals or institutions.
B. "Government Access Channel" means any Channel or portion of a Channel available
for programming by government agencies.
C. "Public Access Channel" means any Channel or portion ora Channel where any
member of the general public may be a programmer on a nondiscriminatory basis,
subject to operating rules formulated by the City or its designee. Such rules shall not
be designed to control the content of public access programming. Such rules shall also
address the extent to which and manner in which members of the general public who
are not residents of the City of Bremerton may be programmers on the Public Access
Channel.
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1.2 "ACCESS SERVICES OR "PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS (PEG)
CHANNEL"
Programming provided on any Public, Educational or Government (PEG) Access
Services.
1.3 "PEG ACCESS FACILITIES"
Channel capacity designated for public, education, or governmental use; and facilities, and
equipment such as modulators, demodulators and transmitters for the use of such Channel
capacity.
1.4 "ACCESS RESOURCES"
Ail capital and operating support and other financial means by which PEG access is
exercised.
1.5 "ACTIVATED CHANNELS"
Those channels engineered at the headend of a cable system for the provision of services
generally available to residential subscribers of the cable system, regardless of whether
such services actually are provided, including any channel designated for public,
educational, or governmental use;
1.6 "ADDRESSABILITY"
The ability of a Cable System to allow Falcon to authorize through remote control
customer terminals to receive, change or to cancel any or all specified programming
without visiting customers premises.
1.7 "AFFILIATE"
The term "affiliate", when used in relation to any person, means another person who owns
or controls, is owned or controlled by, or is under common ownership or control with,
such person;
l.g "BASIC SERVICE" OR "BASIC CABLE SERVICE"
Any tier of service regularly provided to all Subscribers. It includes, but is not specifically
limited to, the retransmission of local broadcast television signals and the cablecasting of
Public, Educational, or Governmental (PEG) Access Channels.
1.9 "BI-DIRECTIONAL CAPABILITY" AND "ACTIVATED BI-DIRECTIONAL CAPABILITY"
The ability of the System to transmit video signals for Cable Services in both upstream and
downstream directions between the System headend and each subscriber location without
the installation of any major System components other than headend, optical transfer and
fiber optic node equipment, amplifier return modules and end user equipment at
Subscriber locations. "Activated Bi-directional Capability" means the ability of the
System to provide Cable Services requiring Bi-Directional Capability without the
installation of any major System components other than user equipment at subscriber
locations.
1.10 "CABLE ACT"
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Collectively the federal Cable Communications Policy Act of 1984 (Public Law
No. 98-549,47 USC 521 (Supp.) and the Cable Television Consumer Protection and
Competition Act of 1992, (Public Law No. 102-385) as may be amended from time to
time, or superseded in the future.
1.11 "CABLE SYSTEM"
The meaning specified for "Cable System" in the Cable Act. Unless otherwise specified it
shall in this document refer to the Cable System constructed and operated in the City
under this Franchise.
1.12 "CABLE SERVICE"
The same meaning specified for "Cable Service" in the Cable Act as amended.
1.13 "CHANNEL"
A portion of the electromagnetic frequency spectrum which is used in a Cable System and
which is capable of delivering a television Channel (as television Channel is defined by the
Commission by regulation).
1.14 "CITY"
The City of Bremerton of the State of Washington and all incorporated territory within its
present and future boundaries.
1.15 "ExPANDED BASIC SERVICE"
Optional services not included in the Basic Service and excluding premium or pay-per-
view services.
1.16 "FRANCHISE"
The fight granted by this Ordinance and conditioned as set forth herein by which the City
authorizes Falcon to erect, construct, reconstruct, operate, dismantle, test, use and
maintain a Cable System in the City.
1.17 "FRANCHISE AREA"
That area within the corporate limits of the City which is served by Falcon on the effective
date of this franchise, plus any future areas of the City contiguous to Falcon's service area
for which specific permission for Falcon to serve is granted by City ordinance, following
written request by Falcon provided that such request is not unreasonably denied.
1.18 "FRANCHISE FEE"
The fee assessed by the City to Falcon, in consideration of Falcon's right to operate the
Cable System within the City's streets and rights of way, determined in amount as a
percentage of Falcon's gross revenues and limited to the maximum percentage allowed for
such assessment by federal law. Thc term Franchise Fee does not include any tax, fee, or
assessment of general applicability.
1.19 "GROSS RECEIPTS"
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FALCO~ CABLE FRANCHISE
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Gross Revenues less bad debt.
1.20 "GROSS REVENUES"
For the purpose of providing a basis for the determination of Franchise Fees, but without
prejudice to any other purpose including without limitation the purpose of determining the
basis for City business or utility taxes, "Gross Revenues shall have the following meaning.
All amounts earned by Falcon, any Affiliate of Falcon, or any entity that constitutes a
"cable operator" under the Cable Act definition, in whatever form and from all sources,
derived from the operation of Falcon's Cable System to provide Cable Service within the
franchise area. "Gross Revenues" shall include, without limitation, amounts for: all Cable
Services, e.g., basic service, expanded basic service, premium services, other services,
such as online services, to the extent such services are offered as cable services,
advertising, commissions on sales of goods or services by third parties utilizing the Cable
System to provide Cable Service in the Franchise Area (e.g., home shopping networks),
installations, leasing, renting or selling of system equipment or leasing of capacity to
provide Cable Service within the Franchise Area, and all other revenues derived from the
operation of Falcon's Cable System to provide Cable Service within the Franchise Area,
regardless of whether initially recorded to another entity and however characterized.
Any sales, excise or other taxes or fees levied directly upon subscribers by a local, state or
federal government and collected by Falcon for direct pass-through to such government
shall not be included in Gross Revenues.
Subject to the limits and restrictions of federal and state law, copyright fees paid by Falcon
shall be included in gross revenues. However, Franchise Fees paid by Falcon shall not be
included in Gross Revenues, except as allowed under federal and state law and regulation.
Gross Revenues shall not be double counted. Revenues of both Falcon and an Affiliate
that represent a transfer of funds between Falcon and the Affiliate, and that would
otherwise constitute Gross Revenues of both Falcon and the Affliate, shall be counted
only once for purposes of determining Gross Revenues.
1.21 "INSTITUTIONAL NETWORK"
A communications network, which may include part of the Cable System,
designed principally for the provision of non-entertainment, one-way and
interactive services, not generally available to residential subscribers, but rather to
schools, public agencies or other City-designated non-profit agencies for use in
connection with the ongoing operations of such institutions.
1.22 "I/~tTERACTIVE SERVICES"
Those services provided to subscribers whereby the subscriber has the ability to both
receive information consisting of either television or other signals and transmits signals
generated by the subscriber or equipment under his/her control for the purpose of
selecting what information shall be transmitted to the subscriber.
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1.23 "INTERCONNECT" OR "INTERCONNECTION"
The physical linking of the Cable System with another cable system, programming source,
or other communications system, to provide a sharing of programming between the Cable
System and such other entity.
1.24 "LEASED ACCESS"
The use of Channel capacity designated for commercial use by persons unaffiliated with
Falcon in accordance with Section 612 of the Cable Act.
1.25 "PAY SERVICE" OR "PREMIUM SERVICE"
Programming choices (such as movie channels or pay-per-view programs) offered
individually to subscribers on a per-channel, per-program or per-event basis.
1.26 "PERSON"
Any individual, corporation, partnership, association, joint venture or organization of any
kind and the lawful trustee, successor, assignee, transferee or personal representative
thereo£
1.27 "PUBLIC FACILITY"
Any facility owned, operated or under the control of any city, county, state or federal
government agency, public agency, public or private school or city-designated non-profit
agency.
1.28 "SCHOOL"
Accredited public, private, or non-profit primary and secondary schools, colleges and
universities.
1.29 "SuBSCRIBER"
Any Person who legally received any one or more of the Cable Services provided by the
Cable System.
1.30 "STREET"
The surface of and the space above and below the right of way of any public street, road,
highway, freeway, easement, lane, path, alley, court, sidewalk, parkway, or driveway now
or hereafter existing as such within all incorporated areas of the City.
1.31 "FALCON"
Falcon Video Communications, a Delaware Limited Partnership, and its agents, successors
and assignees.
2. SECTION 2 - FRANCHISE
2.1 GRANT OF FRANCHISE
The City hereby grants to Falcon Video Communications, a non-exclusive Franchise
which authorizes Falcon, subject to the terms of this Ordinance, to construct and operate a
Cable System and offer Cable Service and Institutional Network services in, along, among,
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FALCON CABLE FRANCHISE
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upon, across, above, over, under, or in any matter connected with the streets located in
the City and for that purpose to erect, install, construct, repair, replace, reconstruct,
maintain, or retain in, on, over, under, upon, across or along any street or extensions
thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits,
vaults, utility access covers, pedestals, amplifiers, appliances, attachments, and other
related property or equipment as may be necessary or appurtenant to the cable system.
Said Franchise shall constitute both a right and an obligation to provide the services in a
manner consistant with applicable city codes, regulations, policies and any other applicable
law.
2.2 $lZANCHISE TERM
The term of the Franchise shall be eight (8) years from its effective date. However, if
Falcon has upgraded the capacity of its Cable System to the equivalent of 83 channels
using the same technology utilized in Falcon's Kitsap County system upgrade within
twenty-four (24) months following the effective date of the Franchise then the franchise
term shall be extended two (2) years to a total often (10) years from its effective date.
The franchise may also be extended by the City at its sole discretion, or terminated sooner
in accordance with this Ordinance.
2.3 FRANCHISE NON-EXCLUSIVE
The Franchise granted herein shall be non-exclusive. The City specifically reserves the
right to grant, at any time, such additional franchises for a Cable System as required by
law.
2.4 NEW FRANCHISE
The City may establish appropriate requirements for new franchises or franchise renewals
so long as they are in accordance with federal, state and local law.
2.5 FRANCHISE RENEWAL
The City and Falcon agree that any proceedings undertaken by the City that relate to the
renewal of Falcon's Franchise shall be governed by and comply with the provisions of
Section 626 of the Cable Act, as amended, unless the procedures and substantive
protections set forth therein shall be deemed to be preempted and superseded by the
provisions of any subsequent provision of federal or state law.
2.6 PERIODIC PUBLIC REVIEW OF FRANCHISE
At such times as it deems appropriate, but no more often than annually, with no
expectations regarding extension of franchise, the City may conduct a public review of the
Franchise. The purpose of any such review shall be to ensure, with the benefit of full
opportunity for public comment, that the Franchise continues to effectively serve the
public in the light of new developments in cable law and regulation, cable technology,
cable company performance, local regulatocy environment, community needs and interests,
and other such factors. Both the City and Falcon agree to make a full and good faith
effort to participate in the review.
2.7 TRANSFER OF OWNERSHIP AND ASSIGNABILITY
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FALCON CABLE FRANCHISE
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This Franchise shall not be sold, leased, mortgaged, assigned or otherwise transferred, nor
shall any of the rights or privileges herein granted or authorized be leased, assigned,
mortgaged, sold or transferred, either in whole or in part, nor shall title hereto, either legal
or equitable, or any right, interest or property herein, pass to or vest in any person, except
Falcon or any entity controlling, controlled by, or under common control with Falcon,
either by act of Falcon or by operation of law, without the prior consent of the City,
expressed in writing. The granting of such prior consent in one instance shall not render
unnecessary any subsequent prior consent in another instance. Any transfer of ownership
shall make the Franchise subject to revocation unless and until the City shall have given
written prior consent thereto consistent with federal rules and regulations.
If Falcon wishes to transfer this franchise, Falcon and City shall proceed pursuant to
Section 617 of the Cable Act and related rule makings of the FCC. Falcon shall give City
written notice of the proposed transfer, and shall request consent of the transfer by the
City. For the purposes of determining whether it will consent to such transfer, City may
inquire into the qualifications of the prospective transferee to perform the obligations of
Falcon under this Franchise agreement. Falcon shall assist City in any such inquiry, and
shall provide all information requested in writing by the City that is reasonably necessary
to determine the legal, financial and technical qualifications of the proposed transferee in
order to determine whether it will consent to the proposed transfer. Ail costs associated
with the City's review process, including but not limited to legal and consulting costs,
shall be reimbursed to the City by Falcon. There shall be a limit on reimbursement of
$2,000 unless there are unusual circumstances relating to the transfer.
In cases where the City finds it inappropriate to give unconditional consent to the
proposed transfer, the City may offer its consent upon such terms and conditions as it
deems appropriate, related to the qualifications of the prospective transferee to perform
the obligations of Falcon under this franchise. Consent to the transfer shall not be
unreasonably withheld. Any transfer of ownership effected without the written consent of
the City shall render this franchise subject to revocation. The City shall have 120 days to
act upon any request for approval of a transfer that contains or is accompanied by such
information as is required in accordance with FCC regulations and by the City. If the City
falls to render a final decision on the request within said 120 days, the request shall be
deemed granted unless Falcon and the City agree to an extension of time.
Falcon, upon any transfer as heretofore described, shall within sixty (60) days thereafter
file with the City a copy of the deed, agreement, mortgage, lease, or other written
instrument evidencing such sale, lease, mortgage, assignment or transfer, certified and
sworn to as correct by Falcon. Every such transfer as heretofore described, whether
voluntary or involuntary, shall be deemed void and of no effect unless Falcon shall within
sixty (60) days after the same shall have been made, file such certified copy as is required.
The requirements of this Section shall not be deemed to prohibit the use of Falcon's
property as collateral for security in financing the construction or acquisition of all or part
of the Cable System franchised hereunder. However, such financing shall be subject to the
provisions ofthls Franchise.
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2.8 CHANGE IN CONTROL
Falcon shall immediately provide written notification to the City of any actual change in,
or transfer of, or acquisition by any other party of, control of Falcon. The word "control"
as used herein is not limited to major stockholders but includes actual working control in
whatever manner exercised. A rebuttable presumption that a transfer of control has
occurred shall arise upon the disposal by Falcon, directly or indirectly, by assignment,
transfer, voluntary sale, merger or otherwise, of fifty-one percent (51°/5) or more at one
time of the ownership or controlling interest in the System, or fifty-one percent (51%)
cumulatively over the term of the Franchise of such interests to a corporation, partnership,
limited partnership, trust or association, or person or group of persons acting in concert.
2.9 REVOCATION
In addition to any rights set out elsewhere in this document, the City reserves the right,
without prejudice to the requirements of Section 2.14, to declare a forfeiture or otherwise
revoke the Franchise, and all rights and privileges pertaining thereto, in the event that:
A. Falcon is in substantial non-compliance with any material provision of the Franchise
and falls to correct the violation after written notice of the violation and proposed
forfeiture and a reasonable opportunity thereafter to correct the violation as noted in
Section 7.6, Procedure for Remedying Franchise Violations; or
B. Falcon's completion of the channel capacity upgrade as required by Section 4.3 is
delayed for more than 12 months from the completion date identified in the
construction schedule approved by the City; or
C. Falcon fails to obtain and maintain any permit required by any federal or state
regulatory body, relating to the construction, maintenance and operation of the system;
or
D. At any time during the term of the Franchise, as it may be extended from time to time
pursuant to this Ordinance, Falcon fails to provide and maintain a Construction Bond
and Performance Bond as required under Sections 11.3 and 11.4 and of this
Ordinance; or
E. Falcon practices or attempts to practice any fraud or deceit upon cable subscribers or
upon the City, whether during the term of the Franchise or in any proposal,
application, or negotiations relating to the Franchise; or
F. Falcon fails to restore service after ten (1 O) consecutive days of interrupted service,
throughout the service area except when approval of such interruption is obtained
from the City; or
G. Falcon engages in a continuous and willful pattern of grossly inadequate service and
fails to respond to legitimate subscriber complaints.
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H. Upon the occurrence of one of the events set out above, following thirty (30) days
written notice to Falcon of the occurrence and the proposed forfeiture and the
completion of the procedures described in section 7.6, the City Council shall make its
decision regarding revocation of the franchise in accordance with this section.
1. After a public hearing at which the public and Falcon may participate, the City
Council may then accept, reject or modify the recommendation of the
administrative stalE. Falcon shall be bound by the City's decision unless it appeals
the decision within sixty (60) days of the date it is issued.
2. If Falcon is adversely affected by the decision of the City, it may appeal the action
to the Kitsap County Superior Court.
3. The City may, at its sole discretion, take any lawful action which it deems
appropriate to enfome the City's rights under the Franchise in lieu of revocation of
the Franchise. Nothing contained in this Section shall prevent the issuance ora
new franchise containing terms substantially the same or identical to a franchise
which previously was revoked, upon satisfactory assurances made to the City
Council that the terms and conditions of this Franchise can be met by a new
franchisee. Nothing in this Section shall mitigate Falcon's obligation to provide
continuity of service, as provided for in Section 2.14.
2.10 RECEIVERSHIP
The City shall have the right, subject to Federal law, to declare a forfeiture or otherwise
revoke the Franchise one hundred and eighty (I 80) days after the appointment of'a
receiver, or trustee, to take over and conduct the business &Falcon, whether in
receivership, reorganization, bankruptcy, or other action or proceeding, unless such
receivership or trusteeship shall have vacated prior to expiration of said one hundred and
eighty (180) days, or unless:
A. Within one hundred and eighty (180) days after his election or appointment, such
receiver or trustee shall fully have complied with all the provisions of this Franchise
and remedied all defaults thereunder; and,
B. Such receiver or trustee, within said one hundred and eighty (180) days, shall have
executed an agreement, duly approved by the City, as well as the court having
jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be
bound by each and every provision of this Franchise.
2.11 EXPIRATION
Upon expiration of the Franchise, the City shall have the right, at its own election subject
to Section 626 of the Cable Act, to:
A. Renew the Franchise, in accordance with applicable law;
B. Invite additional franchise applications or proposals;
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FALCON CABLE FRANCHISE
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C. Take such other action as the City deems appropriate.
2.12 RIGHT TO PURCHASE THE SYSTEM
A. Ifa renewal or extension of the Franchise is denied subject to appeal rights under
Section 626 of the Cable Act in accordance with federal law, or the Franchise is
lawfully terminated for cause, Falcon shall have a period of 180 days from the date of
the end of the lawful effectiveness of the Franchise or a later date determined by the
City, during which it must, if so ordered by the City, continue its operations under the
terms of this Franchise, and shall have the right to negotiate and complete the sale of
its system to any party of its choosing, subject to the City's right to approve the
transfer of ownership under the terms of this Franchise. Following this period of 180
days, if the system is not sold and the City Council has so ordered by ordinance,
Falcon shall continue its operations for an additional period of 270 days. During this
period, Falcon shall not transfer any portion of its Cable System to any other Person,
including parts of the System rented, leased, or lease-purchased without prior written
consent of the City. Within 30 days of the order by the City to continue operations,
Falcon shall tender to the City an inventory of its system used in the operations under
this Franchise. After receiving the inventory, the City may notif~ Falcon that it desires
to acquire by purchase all or a portion of the System used by Falcon in its operation,
exclusive of parts of the System essential to Falcon's operation of parts of the System,
or of other systems, not acquired. Such notice shall be by ordinance or other
appropriate writing of the City and shall state a date upon which Falcon shall cease its
operations and receive payment as described below. Under this Section, and in
accordance with Section 627 of thc Cable Act, if a Franchise renewal is denied, the
City shall have an option to acquire Falcon's System at fair market value, determined
on the basis of the Cable System valued as a going concern but with no value allocated
to the Franchise itsel£ If the Franchise is revoked for cause, the City shall have an
option to acquire Falcon's System at an equitable price.
B. Appraisal as provided in Subsection (A) of this Section shall be final and binding upon
both parties, subject to: (1) the City's right within 60 days of determination of
valuation to decide by appropriate ordinance or other writing not to acquire all or any
part of the System subject to the valuation proceeding; and (2) the City's right to
decide to acquire through the sale of bonds, but subject to and conditioned upon any
necessary voter approval of the bond funding for acquisition of all or a part of the
System and, if applicable, the successful sale of the bonds. The City may choose to
employ appraisal by appropriate ordinance or other writing of its governing body. In
the ordinance or other writing the governing body shall appoint one appraiser, and
Falcon, by written notice, shall appoint one appraiser within fifteen (15) days after
passage of such ordinance or other writing. The two so appointed shall select a third
appraiser within fifteen (15) days after the appointment of the second appraiser. The
appraisers shall make a written report to the City and Falcon of their determination of
the value of the System, or relevant part thereof, within ninety (90) days after the
appointment of the third appraiser. The determination ora majority of the appraisers
shall constitute the appraisal determination hereunder. The City and Falcon shall pay
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FALCON CABLE FRANCHISE
October 28, 1998
the cost of their chosen appraiser and the cost of the third appraiser shall be divided
equally between the City and Falcon.
C. In the event the City purchases, acquires, takes over, or holds all or parts of the
System pursuant to Subsection (A) above, the City shall have the right without
limitation to assign, sell, lease, or otherwise transfer its interest in all or parts of the
System to any other persons, including any other Grantee of a cable communications
franchise, on whatever terms the City deems appropriate.
In the event a franchise renewal is denied or terminated for cause as set forth in
Section 2.9 of this Franchise, and the City does not exercise the option to purchase the
System, the City must allow Falcon to effect transfer to another purchaser consistent
with the transfer provisions of this Franchise.
2.13 RIGHT TO REQUIRE REMOVAL OF PROPERTY
At the expiration of the term for which the Franchise is granted providing no renewal is
granted, or upon its forfeiture or revocation of the Franchise, as provided for by this
Franchise and subject to appeal rights under Section 626 of the Cable Act, the City shall
have the right to require Falcon to remove, at Falcon's own expense, all or any part of the
Cable System from all streets and public ways within the Franchise Area, except for any
parts of the System which the City may permit to be abandoned in place. IfFaicon fails to
do so, the City may perform the work and collect the cost thereof from Falcon. The
actual cost thereof, including direct and indirect administrative costs, shall be a lien upon
all plant and property of Falcon effective upon filing of the lien with the Kitsap County
Auditor.
Any order by the City Council to remove ail or a part of the Cable System shall be sent by
registered mail to Falcon not later than thirty (30) calendar days following the date of
expiration or revocation of the Franchise. Falcon shall file written notice with the City
Clerk not later than (30) calendar days following the date of the receipt of such order of
its intention to remove cable intended to be removed and a schedule for removal by
location. The schedule and timing of removal shall be subject to approval and regulation
by the City. Removal shall be completed not later than nine months following the date of
expiration or revocation of the Franchise and receipt by Falcon of the City's order to
remove all or part of the Cable System.
Any property of Falcon to be abandoned in place shall be abandoned in such manner as the
City shall prescribe. Upon permanent abandonment of the property of Falcon in place, the
property shall become that of the City, and Falcon shall submit to the City Clerk an
instrument in writing, to be approved by the City Attorney, transferring to the City the
ownership of such property. None of the foregoing affects or limits Falcon's rights to
compensation for an involuntary abandonment of its property under State, or Federal law.
In the event the City and Falcon are unable to agree as to whether an abandonment is
voluntary for the purposes of this Section either party may invoke arbitration to resolve
such question.
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installations (excluding aerial cable lines utilizing existing poles and existing cable
paths), consistent with sound engineering practices.
C. Emergency Repairs. Notice requirements of subsections A and B above, are
suspended for purposes of entry upon private property to perform repairs at the
subscriber's request or in the event of system outage repairs or other emergencies in
which insufficient time is available to provide notice to subscribers.
3.4 CONSISTENCY WITH DESIGNATED USE
Notwithstanding the above grant to use streets, no street shall be used by Falcon if the
City, in its sole opinion, determines that such use is inconsistent with the terms, conditions
or provisions by which such street was created or dedicated, or presently used under State
and local laws.
3.5 UNDERGROUNDING
Falcon shall place underground all of its transmission lines which are located or are to be
located above or within the streets of the City in the following cases:
A. Ail existing utilities are placed underground;
B. Statute, ordinance, policy or other regulation of the City requires utilities all to be
placed underground;
C. The overhead lines of all utilities are converted to underground in a particular location.
D. Falcon is unable to get pole clearance;
E. Underground easements are obtained from developers of new residential areas; or
F. Utilities are overhead but residents prefer underground (construction and relocation to
be provided at residents' expense).
Falcon shall participate in conversion to underground Local Improvement Districts
(LIDs). Falcon shall fairly share with other utilities the cost ofundergrounding when
provided through the LID process. Falcon shall provide the preliminary cost estimate,
facility conversion designs and final cost estimates to the LID project coordinator in a
timely manner. At the request of the LID project coordinator, Falcon shall perform
underground construction and overhead reclaim services in coordination with the
undergrounding services provided by other LID utilities.
The City shall make available to Falcon all records of the issuance of building or
development permits for planned commemial or residential developments within the
Franchise Area requiring undergrounding of cable facilities. Falcon shall be responsible
for engineering, deployment of labor, and cable facilities, but shall not be responsible for
the digging and backfilling of trenches. Installation from utility easements to individual
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Falcon shall not remove any underground cable or conduit which requires trenching or
other opening of the streets along the extension of cable to be removed, except as
hereinafter provided. Falcon may voluntarily remove any underground cable fi.om the
streets which has been installed in such a manner that it can be removed without trenching
or other opening of the streets along with extension of cable to be removed. Subject to
applicable law, Falcon shall remove, at its sole cost and expense, any underground cable
or conduit by trenching or opening of the streets along the extension thereof or otherwise
which is ordered to be removed by the City Council based upon a determination, in the
sole discretion of said Council, that removal is required in order to eliminate or prevent a
hazardous condition.
2.14 CONTINUITY OF SERVICE MANDATORY
It shall be the right of all subscribers to receive all available services insofar as their
financial and other obligations to Falcon are honored. In the event that Falcon elects to
overbuild, rebuild, modify, or sell the system, or the City revokes (in accordance with
Section 2.9) or fails to renew the Franchise, Falcon shall make its best effort to ensure that
all subscribers receive continuous uninterrupted service, regardless of the circumstance.
In the event of expiration, purchase, lease-purchase, condemnation, acquisition, taking
over or holding of plant and equipment, sale, lease, or other transfer to any other person,
including any other Grantee of a cable communications franchise, Falcon shall cooperate
fully to operate the System in accordance with the terms and conditions of this Franchise
for a temporary period sufficient in length to maintain continuity of service to all
subscribers.
In the event Falcon fails to operate the Cable System for seventy-two (72) continuous and
consecutive hours without prior notification to and approval of the City Council or
without just cause such as an impossibility to operate the system because of the
occurrence of an act of God or other circumstances reasonably beyond Falcon's control,
the City may, after notice and an opportunity for Falcon to commence operations at its
option, operate the system or designate someone to operate the system until such time as
Falcon restores service to conditions acceptable to the City Council or a replacement
operator is selected. If the City is required to fulfill this obligation for Falcon, Falcon shall
reimburse the City for all reasonable costs or damages in excess of revenues fi-om the
system received by the City that are the result of Falcon's failure to perform.
2.15 SURVIVAL OF TERMS
Sections 2.12, 2.13, 2.14, 11, and 12 of this Franchise shall continue in effect as to Falcon
notwithstanding any expiration, forfeiture, or revocation of the Franchise, until such time
as a transfer, sale, or assignment of the System is completed.
2.16 COSTS OF FRANCHISE COMPLIANCE
Falcon shall bear the cost of compliance with all provisions contained within this
Franchise, where explicitly stated in the Franchise or as provided for in federal, state or
local law. Nothing in this Section shall affect the right of Falcon to pass the costs of
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FALCON CABLE FRANCHISE
October 28, 1998
certain Franchise obligations through to its subscribers in accordance with applicable law
and regulation.
3. SECTION 3 - OPERATION IN STREETS AND RIGHTS-OF-WAY
3.1 USE OF STREETS
Falcon may, subject to the terms of this Franchise, erect, install, construct, repair, replace,
reconstruct and retain in, on, over, under, upon, across and along the streets within the
City such lines, cables, conductors, ducts, conduits, vaults, utility access covers,
amplifiers, appliances, pedestals, attachments and other property and equipment as are
necessary and appurtenant to the operation ora Cable System with the City.
3.2 CONSTRUCTION OR ALTERATION
Falcon shall in all cases comply with all lawful City ordinances and regulations of general
applicability regarding the acquisition of permits and such other items as may be
reasonably required in order to construct, alter or maintain the Cable System. Falcon shall
make available, at Falcon local office, information to the City regarding its progress in
completing or altering the cable system.
3.3 NON-INTERFERENCE
Falcon shall construct and maintain a Cable System so as to cause a minimum of
interference with other use of streets, and shall perform its work using suitable barricades,
flags, lights, flares, or other devices as are reasonably required for the safety of the public
in accordance with local and State policies and procedures. Falcon shall utilize existing
poles, conduit systems and other facilities whenever possible, and shall not construct or
install any new, different, or additional poles, conduit systems, or other facilities whether
on public property or on privately owned property until approval of the property owner or
appropriate governmental authority is obtained. Such governmental approval shall not be
unreasonably withheld if said approval complies with that authority's regulations, codes
and policies. However, the location of any pole or wire-holding structure by Falcon shall
not constitute a vested interest, and such poles, structures, or facilities shall be removed,
replaced or modified by Falcon at its own expense whenever the Council or other
governmental authority reasonably determines that the public interest so necessitates.
A. Notice of Construction. At least fifteen (15) days prior to any intended construction,
Falcon shall inform all residents in the affected area that a construction project will
commence, the dates and nature of the project, and a toll-free telephone number which
the subscriber may call for further information. A pre-printed door hanger may be
used for this purpose.
B. Notice of£ntrv on Private Property. At least twenty-four (24) hours prior to entering
private property or streets or public eascmants adjacent to or on such private property
to perform new plant construction or reconstruction, a notice indicating the nature and
location of the work to be performed shall be physically posted upon the affected
property. Falcon shall make a good faith effort to comply with the proper~y
owner/resident's preferences, if any, on location or placement of underground
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~ALCON CABLE FRANCHISE
October 28, 1998
homes or other structures in a new development shall be at the cost of the home/building
owner or Developer unless otherwise provided.
2t.6 RESTORATION
In case Falcon disturbs any street, public way, paved area or public improvement, Falcon
shall, at its own cost and expense and in accordance with the requirements of local law,
restore such street, public way, paved area or public improvement to a condition fully
meeting City approved and published policies and/or ordinances.
Falcon shall perform all restoration work promptly.
If Falcon fails, neglects or refuses to make restorations as required under this Section, then
the City may do such work or cause it to be done, and the cost thereof to the City shall be
paid by Falcon.
If Falcon causes any damage to private property in the process of restoring facilities,
Falcon shall pay the owner &the property for such damage, or repair or restore the
property to its condition prior to the damage.
In any dispute over the adequacy of a restoration relative to this Section, the Bremerton
Department of Public Works shall in its sole discretion make the final determination on
behalf&the City. Notwithstanding, nothing in this section shall be construed as to limit
Falcon's right to appeal the City's actions in state or federal court.
3.7 TREE TRIMMING
Falcon shall have the authority to trim trees upon and overhanging streets, alleys,
sidewalks, and public ways, subject to the requirements of the City's tree trimming
ordinance, Ordinance No. 4553 as it may be amended from time to time. Falcon will
provide all tree trimming in accordance with American National Standard ANSI-D 6.1,
1978 Electrical Hazards.
RELOCATION
If, during the term of the Franchise, the City or any government entity elects or requires a
third party to alter, repair, realign, abandon, improve, vacate, reroute or change the grade
of any street, public way or other public property; or to construct, maintain or repair any
public improvement; or to replace, repair, install, maintain, or otherwise alter any cable,
wire conduit, pipe, line, pole, wireholding structure, structure, or other facility, including a
facility used for the provision of utility or other services or transportation of drainage,
sewage or other liquids, Falcon shall, upon request by the City, except as otherwise
hereinafter provided, at no expense tO the City remove or relocate as necessary its poles,
wires, cables, underground conduits, vanlts, pedestals, utility access covers and any other
facilities which it has installed.
If during the term of the Franchise another entity which holds a franchise or any utility
requests Falcon to remove or relocate such facilities to accommodate the construction,
maintenance or repair of the requesting party*s facilities, or their more efficient use, or to
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FALCON CABLE FRANCHISE
October 28, 1998
"make ready" the requesting party's facilities for use by others, or because Falcon is using
a facility which the requesting party has a right or duty to remove, Falcon shall do so. The
companies involved may decide among themselves who is to bear the cost of removal or
relocation, provided that the City shall not be liable for such costs.
Any person authorized by the City and requesting Falcon to remove or relocate its
facilities shall give Falcon no less than thirty (30) days advance written notice to Falcon
advising Falcon of the date or dates removal or relocation is to be undertaken, provided
that, no advance written notice shall be required in emergencies or in cases where public
health and safety or property is endangered.
If Falcon fails, neglects or refuses to remove or relocate its facilities as directed by the
City; or in emergencies or where public health and safety or property is endangered, the
City may do such work or cause it to be done, and the cost thereof to the City shall be
paid by Falcon. If Falcon fails, neglects or refuses to remove or relocate its facilities as
directed by another franchisee or utility, upon thirty (30) days advance written notice, that
franchisee or utility may do such work or cause it to be done, and if it is later determined
by a court of competent jurisdiction that Falcon would have been liable for the cost of
performing such work, the cost thereof to the party performing the work or having the
work performed shall be paid by Falcon.
If Falcon causes any damage to private property or public property in the process of
removing or relocating its facilities, Falcon shall pay the owner of the property for such
damage, or repair or restore the property to its condition prior to the damage.
3.9 MOVEMENT OF BUILDINGS
Falcon shall, upon seven (7) days' notice and request by any Person holding a building
moving permit, franchise or other approval issued by the City, temporarily remove, raise
or lower its wire to permit the movement of the building. The expense of such removal,
raising or lowering shall be paid by the person requesting same, and Falcon shall be
authorized to require such payment in advance.
3.10 SAFETY REQUIREMENTS
Falcon, in accordance with applicable National, State, and Local safety requirements shall,
at all times, employ ordinary care and shall install and maintain and use commonly
accepted methods and devices for preventing failures and accidents which are likely to
cause damage, injury, or nuisance to the public. Ail structures and all lines, equipment and
connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or
places of a franchise area, wherever situated or located, shall at all times be kept and
maintained in a safe, suitable condition, and in good order and repair. Ifa violation by
Falcon of any applicable regulation is found to exist, the City will, a~er discussions with
Falcon, establish a reasonable time for Falcon to make necessary repairs. If the repairs are
not made within the established time frame, the City may make the repairs itself or have
them made and collect all reasonable costs thereof from Falcon.
3.11 TRAFFIC CONTROL
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FALCON CABLE FRANCHISE
October 28, 1998
All construction within the City's right of way shall comply with the latest edition of the
Manual on Uniform Traffic Control Devices 0MUTCD) Part VI Standards and Guides for
Traffic Controls for Street and Highway Construction, Maintenance, Utility and Incident
Management Operations. Failure to comply with these standards shall be cause to stop
construction until all traffic control issues are addressed. It shall be the responsibility of
Falcon to assure full compliance when working within the public right of way.
4. SECTION 4 - SYSTEM DESIGN AND CAPACITY
4.1 AVAILABILITY OF SIGNALS AND EQUIPMENT
Falcon shall, at a minimum:
A. Make available to subscribers all signals that are required to be made available by the
FCC or as federal law provides;
B. Distribute, in color, all television signals which are received in color unless a
substantial reason for noncompliance can be demonstrated;
C. Make available a minimum of 83 activated analog or digitally compressed video
programming Channels, including Channels carrying all Basic Cable services, in
accordance with the channel capacity upgrade required in Section 4.3;
D. Make available parental control or "lock-out" devices (audio and visual) upon request
by subscriber and at a reasonable charge. These devices should provide the greatest
degree of parental discretion and control to prevent unauthorized viewing of any
premium channel or channels and, where technically and practically feasible, non-
premium channels as well;
E. Make available upon request and at a reasonable charge an RF switch (an A/B switch)
permitting conversion from cable to antenna reception;
F. Upon request, provide, without installation or monthly charge, one outlet of all Basic
Cable service and Expanded Basic Service or its equivalent, to any public fire station
passed by the Cable System, and one outlet each to all public school and college
classroom building(s) that are passed by the Cable System and all other public
buildings listed in Appendix B, as well as all other such public buildings that may be
constructed during the period of the Franchise that are passed by distribution cable and
within 150 feet of the trunk or distribution system. Additional outlets as agreed upon
by the City and Falcon will meet FCC technical standards and will accommodate the
extension of services throughout the building at no additional charge.
Notwithstanding anything to the contrary set forth in this Section, Falcon shall not be
required to provide an outlet to such buildings, unless it is technically feasible and if it
will not adversely affect the operation or market development of the Cable System to
do so. The City and Falcon agree that the provision of the outlets contemplated
hereunder will not so adversely affect the operation or market development of the
system, unless some unforeseen and unanticipated event occurs, e.g., such a
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FALCON CABLE FRANCHISE
October 28, 1998
substantial increase occurs in the cost of providing the outlet as to create the adverse
effect, or if it becomes illegal to provide the outlets. Falcon may charge its costs for
the installation of that portion of any service drop required in the Section which is in
excess of one hundred fifty (150) feet. If more than one outlet of Basic and Expanded
Basic Service are provided to such buildings, unless otherwise agreed to between the
City and Falcon, the building owner shall pay the usual installation fees associated
therewith, including, but not limited to, labor and materials. The outlets of Basic and
Expanded Basic Service shall not be used by the City to distribute or sell services in
or throughout such buildings nor shall such outlets be located in generally accessible
public viewing areas.
G. Nothing in this section shall prohibit Falcon from activating portions of its upgraded
system as they are completed in accordance with the construction schedule outlined in
Section 4.3.
4.2 EQUAL AND UNIFORM SERVICE
Upon completion of the upgrade of the System, Falcon shall provide access to equal and
uniform cable television service throughout the Franchise Area. In particular, cable
service shall not be denied to any group of potential residential cable subscribers because
of the income of the residents of the local area in which such group resides.
4.3 SYSTEM UPGRADE
A. Upgrade and Completion Schedule
Falcon shall upgrade the channel capacity of its system to the equivalent of 83
channels using the same technology utilized in Falcon's Kitsap County system upgrade
and shall make service available on the upgraded System to all Subscribers in the
Franchise area, within twenty-four (24) months after the effective date of this
Franchise. Completion of the channel capacity upgrade shall be deemed accomplished
when all walk-out, design, construction and activation are completed, and service is
actually available to all Subscribers in the Franchise Area. However, nothing shall
prohibit Falcon from completing the upgrade and offering services on the upgraded
System on an area-by-area basis as construction allows.
The system, as upgraded, shall have the capacity to provide pay-per-view and other
services requiring Addressability. In all its construction and service provision
activities, Falcon shall meet or exceed the construction, technical performance,
extension and service requirements set forth in this Franchise. During the construction
period of the upgrade, Falcon shall not be obligated to provide a refund or credit to
customers where an outage was necessitated by the cut-over from the present System
to the rebuilt or modified System.
B. Remedies
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FALCON CABLE FRANCHISE
October 28, 1998
The City may assert any of the following remedies in the event Falcon defaults on the
completion of the channel capacity upgrade.
1. Draw upon Falcon's Construction Bond or Performance Bond (as provided for
under Sections 11.3 and 11.4) to recover damages for a default in which Falcon
delays completion of the channel capacity upgrade, provided, however, that no
payment shall be made under such Construction Bond or Performance Bond in the
event ora delay caused by acts of nature, force majeure or circumstance beyond
the reasonable ability of Falcon to control. In any other event, Falcon shall pay to
the City damages, in the amount of one thousand dollars ($1,000) per day for each
day which is more than ninety (90) days after the deadline for completion of the
upgrade, and accruing for a maximum of twelve (12) months. Falcon and the City
acknowledge and agree that the harm the City is likely to incur upon such Falcon
breach is such that it is incapable of ascertainment or very difficult to ascertain and
that the foregoing liquidated damages are a reasonable forecast or just
compensation for such harm to which the City shall be entitled regardless of the
amount of its actual damages. The City shall be entitled to draw upon the
Construction Bond or Performance Bond to collect the foregoing damages (in
addition to its ability to draw upon the Construction Bond or Performance Bond
for any other default). No payment of damages hereunder will, in any manner or
degree, release Falcon from its obligations and liabilities to complete the entire
channel capacity upgrade described under this Section 4.3 of the Franchise.
2. Termination of the Franchise for delays in upgrade completion exceeding twelve
(12) months.
C. Hearing Process
1. If the City concludes that Falcon is liable for damages subject to forfeiture of its
Construction Bond pursuant to Sections 4.3, 11.3, and 11.4, and the City decides
to give notice to Falcon of its intention to draw upon the-Construction Bond or
Performance Bond (as described in Sections 11.3 and 11.4), then the City shall
give such notice by certified mail or hand delivery. The notice shall set forth the
basis for the assessment, and shall inform Falcon that damages will be assessed
from the date of the notice unless the assessment notice is appealed for hearing
before the City Council.
2. Should Falcon desire a hearing before the City Council, Falcon shall send a written
notice of appeal by certified mail to the City Clerk within thirty (30) days from the
date on which Falcon received the notice of intention to assess damages. The
hearing on Falcon's appeal shall be within sixty (60) days from the date on which
the City received its notice of appeal from Falcon.
3. Unless the City Council rules (1) that the violation has been corrected, or (2) that
an extension of time or other relief should be granted, said damages hearing on
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FALCON CABLE FKANCHISE
Octo~r 28, 1~$
Falcon's appeal shall be within sixty (60) days from the date on which the City
received its notice of appeal from Falcon.
4. Unless the City Council rules (1) that the violation has been corrected, or (2) that
an extension of time or other relief should be granted, said damages shall be
assessed beginning with the date on which the City sent the notice of the intention
to assess damages and continuing thereafter until such time as the City determines
that the violation has ceased, such determination not to be unreasonably withheld.
D. Right of Inspection of Construction
The City shall have the right to inspect all construction or installation work performed
within the Franchise area, and to make such tests as it shall find necessary to ensure
compliance with the terms of this Franchise and the Federal Communications
Commission (FCC) Rules and Regulations, Part 76, Subpart K (Technical Standards).
E. Emergency Alert Capability
Falcon shall provide the system capability for the City to override all analog channels
with an audio and/or video emergency alert signal transmitted to all subscribers from
the main Falcon building or an alternative location to be approved jointly by the City
and Falcon. The EAS system will meet FCC guidelines and shall be operational
throughout the Falcon service area on or before the required date as defined by the
FCC. The City will share, upon written approval this service with adjoining
communities (i.e. Kitsap County). Subject to federal and state laws and regional
planning authorities, the City may initiate the operation of the emergency alert system
(EAS) at any time. Said system shall be capable of activation from the City's
Emergency Operations Center.
The City shall permit only appropriately trained and authorized Persons to operate the
EAS equipment. Except to the extent expressly prohibited by law, the City shall hold
Falcon, its employees, officers, and assigns, harmless from any claims arising out of
the City's negligence in the emergency use of Falcon facilities, including, but not
limited to reasonable attorney's fees and costs. Additionally, the City shall indemnify
and hold harmless Falcon against damage, loss or inappropriate use of the equipment
by the City and shall agree to use due care and to take reasonable precautions against
such damage, loss or inappropriate use of the EAS equipment or other Cable System
equipment which may be used during a declared emergency. However, no indemnity
is provided under this Section for any EAS or EAS use that Falcon is required to
provide under federal law.
F. Standby Power
Falcon shall provide standby power generating capacity at the Cable System control
center and at all hubs. Falcon shall maintain standby power system supplies, rated at
least at two (2) hours duration, throughout the trunk and distribution networks. In
addition, Falcon shall have in place throughout the Franchise term a plan, and all
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FALCON CABLE FI~NCHISE
October 28, 1998
resources necessary for implememation of the plan, for dealing with outages of more
than two hours. This outage plan and evidence of requisite implementation resources
shall be preseme'd to the City for approval prior to the effective date of this FraneNse.
G. Provision of Bi-Directional Capability and Other System Capabilities
Falcon shall construct the upgraded system with Bi-directional Capability. At periodic
reviews, not less than every tNrd year, the City may submit information demonstrating
the demand for services requiring Activated Bi-directional Capability or other
increased technical capabilities of the System. Falcon shall provide Activated Bi-
directional Capability when technical and economic viability are demonstrated; except
that, upon completion of the upgrade but without further condition, Falcon shall
provide Activated Bi-directional Capability within twenty-four (24) months of
notification that the following standard has been met:
such Activated Bi-directional Capability is provided by Falcon in any part of Kitsap
County; or when such Capability is provided throughout the City by any other
cable operator, or when 40% of systems operated by Falcon or any Affiliate in
King, Pierce, Kitsap and Snohomish Counties have activated Bi-directional
Capability on a permanent basis.
4.4 TECHNICAL STANDARDS
The Federal Communications Commission (FCC) Rules and Regulations, Part 76, Subpart
K (Technical Standards), as now or hereafter constituted or amended, shall apply. The
City may establish reasonable technical standards for the performance of the Cable System
if the FCC permits it to do so, or if the FCC standards are repealed in whole or in part.
FCC technical standards may be enforced by the City to the extent that, and only to the
extent that, such enforcement is permitted under Federal law and regulation. Upon
request, Falcon shall provide the City copies of the results of all System tests required by
the FCC. Regardless of'the physical location of the System headend, the System within
the City shall deliver technical quality equivalent to having the master headend located
within the City's boundaries; and shall permit bi-directional transmission oFall PEG
Access, leased access, and Institutional Network signals in a manner equivalent to that
provided through location of the headend within the City's boundaries. In the
construction, operation and maintenance of the System, Falcon shall also comply, at a
minimum, with the following applicable codes:
1. City, State and National/Federal Codes and Ordinances;
2. Utility Joint Attachment Practices;
3. The National Electric Safety Code; ANSI C2;
4. City Utility Code Requirements;
5. City Rights-of-Way Procedures;
The City is authorized to inspect the Cable System at anytime to ensure compliance and
reserves the right to see that the System of Falcon is constructed and maintained in a safe
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FALCON CABLE FRANCHISE
October 28, 1998
condition, and if unsafe condition is found to exist, to order Falcon, in writing, to make
the necessary repairs and alterations specified therein forthwith to correct the unsafe
condition.
4.5 PERFORMANCE TESTING
The following requirements shall be met by Falcon, to the extent that these requirements
can legally be imposed in a franchise under federal law and regulation.
Falcon shall perform ail system tests at the intervals required by Section 76.601 of the
Federal Communications Commission (FCC) Rules and Regulations, Part 76, Subpart K
(Technical Standards), and ail other tests reasonably necessary to determine compliance
with technical standards required by this Franchise. These tests shall include, without
limitation:
A. Initial proof of performance for any construction;
B. Semi-annuai compliance tests;
C. Tests in response to subscriber complaints; and
D. Tests reasonably requested by the City to demonstrate Franchise compliance.
Written records of all System test results performed by or for Falcon shall be maintained
for three (3) years, and shall be available for City inspection upon request.
For initial and semi-annuai FCC proof-of-performance tests, the City shall be given the
opportunity by Falcon to review test sites. The tests may be witnessed by representatives
of the City, and Falcon shall inform the City of the time and place of each test no less than
three weeks prior to the test. Written test reports shall be submitted to the City. The City
may conduct independent tests of the system for which Falcon shall give its fullest
cooperation. If more than one of the locations tested fail to meet the performance
standards, Falcon shall be required to indicate what corrective measures have been taken,
and the entire test shall be repeated at the locations which failed. Ifa second test results in
failure of one or more sites, then the City may seek remedies in accordance with Sections
7.5 and 7.6 unless the circumstances of the failure are caused by conditions which are
beyond Falcon's control as determined, acknowledged and verified by the City.
If deemed necessary, the City may wish to review the cable system's performance. During
such evaluation session, Falcon shall fully cooperate with the City and shall provide
without cost such reasonable information and documents as the City may request to
perform evaluations.
If the City has concerns because of reoccurring problems with Falcon's cable system it
may, following notice to Falcon and reasonable opportunity to resolve the problem, retain
an independent consultant to conduct an analysis of the cable system and its performance
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FALCON CABLE FRANCHISE
October 28, 1998
and submit a report &such analysis to the City. The City shall take into consideration any
efforts taken to correct such deficiencies.
The report prepared by the consultant in response to the City's request for a system
evaluation shall include
I. A description of the technical problem in cable system performance which precipitated
the special tests;
2. What cable system components were tested;
3. The equipment used and procedures employed in testing;
4. The method, if any, by which specific performance problems may be resolved;
5. Any other information pertinent to said tests and analyses which may be required by
the City.
If the tests indicate that the system is not in compliance with FCC standards or the
requirements &the Franchise, Falcon shall reimburse the City for all costs involved in
conducting such tests, including consultant fees or other expenses.
4.6 INTERCONNECTION
A. Falcon shall continue at no additional cost to City or subscribers all PEG Access
interconnections in effect on the effective date of this Franchise, provided that one or
more Interconnections may be discontinued if it is jointly determined that said
discontinuation is in the best interest of the City and Falcon.
B. Falcon shall interconnect its PEG Access Channels in the future with such additional
contiguous cable systems, as may be ordered by the City following an ascertainment of
community needs and interests and a public heating. Interconnection of systems may
be accomplished by direct cable connection, microwave link, or other technically
feasible method. Upon receiving request of the City to interconnect, if Falcon has not
already done so, Falcon shall immediately initiate negotiations with other affected
system(s), and shall report to the City the results of such negotiations no later than
sixty (60) days after such initiation. Upon a determination by the City that an
interconnection is technically and economically feasible, considering all the
circumstances, the City may order Falcon to perform the interconnection, and Falcon
shall interconnect the systems within one hundred eighty (180) days following the
order, subject to agreement by the interconnecting system regarding the equitable
sharing ofinterconnection costs. In the case &any dispute regarding such equitable
sharing &costs, the City shall make a final determination based upon a cost factor that
is proportionate to subscriber representation within each interconnecting system's city
franchise area.
C. Upon request by the City, Falcon shall interconnect the Institutional Network with any
City-owned communications network, and any cable system or publicly owned
institutional networks serving similar public purposes in adjacent jurisdictions. In
cases where the I-Net interconnection involves the cooperation of another cable
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FALCON CABLE FRANCHISE
October 28, 1998
company, the requirement for interconnection shall be subject to the same conditions
as for PEG interconnection as described in (B) above.
D. At a minimum, each Interconnection shall provide sufficient bandwidth to fully
accommodate, at a high level of technical quality, the transmission of such volume of
bi-directional voice, video and data signals as may be designated necessary by the City
for the carriage of PEG and Institutional Network signals.
E. Falcon shall ensure that all intemonnections on its own property are securely housed
and maintained, and ensure compliance with the Federal Communications Commission
(FCC) Rules and Regulations, Part 76, Subpart K (Technical Standards).
F. With respect to installing the capacity required under this Section, the City
understands that interconnection requires cooperation from other cable system
operators as to financial, engineering, design, and technical operation issues.
Therefore the City shall make every reasonable effort to assist Falcon in achieving the
cooperation of interconnecting cable system operators necessary to establish the
Interconnections, and Falcon's interconnection obligations hereunder shall be subject
to such cooperation being obtained.
G. The cost to Falcon of interconnecting its cable system with any other system pursuant
to the requirements of this Franchise, solely to meet the requirements of this Franchise
and not for purposes of Falcon's own may be regarded as external cost, passed
through to subscribers, and itemized on subscriber bills. In cases where Falcon
performs an interconnection for any other reason, without being specifically requested
to do so in writing by the City, the cost of the interconnection shall not be passed
through to subscribers as external costs, nor itemized as such on subscriber bills.
4.7 VIRTUAL HEADEND
In the event that the Cable System headend is located outside the City at any time during
the term of the Franchise, then during such period, Falcon shall make all System design
and operational provisions necessary to ensure that:
A. The technical standards of the FCC and this Franchise shall continue to be met;
R PEG access programming can readily be cablecast downstream.
5. SECTION 5 - PROGRAMMING AND SERVICES
5.1 CATEGORIES OF PROGRAMMING
Falcon shall provide broad categories of video programming substantially equal to or an
improvement upon what is provided at the time the Franchise commences until the system
upgrade required by this Franchise is completed. Upon completion of the system upgrade
required in this Franchise, Falcon shall provide video programming services in at least the
following broad general categories:
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FALCON CABLE FRANCHISE
October 28, 1998
A. News & Information;
B. Sports;
C. General entertainment;
D. Arts, culture, performing arts;
E. Children/family;
F. Foreign language/ethnic programming;
G. Public, educational and governmental access programming;
H. Movies; and
I. Religious programming.
5.2 CHANGES IN VIDEO PROGRAMMING
Following System upgrade, no category of services as identified above may be deleted by
Falcon without City approval, which approval shall not be unreasonably withheld. Falcon
shall provide written notice to the City and to subscribers of any proposed deletions,
additions or rearrangements of individual programming services, both before and after the
System upgrade, at least thirty (30) days in advance, provided the giving of such notice is
reasonably possible under the circumstances. If thirty (30) days notice is not reasonably
possible, Falcon having made a good faith effort to comply, then Falcon shall give notice
as soon as is reasonably possible. The City reserves the right both before and after system
upgrade to regulate to the fullest extent permitted by law to ensure maintenance of the
mix, level, and quality of service.
5.3 BASIS FOR PROGRAMMING DECISIONS
At the request of the City, Falcon will attend council meetings/study sessions for the
purpose of making an oral presentation explaining programming decisions.
$.4 OBSCENITY
Subject to applicable federal law, Falcon shall not transmit over the cable system
programming which is obscene or otherwise unprotected by the Constitution of the United
States, provided, however, Falcon shall in no way be responsible for programming over
which it has no editorial control, including public, educational and governmental access
programming.
5.5 PARITY OF SERVICE AND RATES
Upon delivery of the channel capacity upgrade Falcon City subscribers will enjoy
substantially the same level of service as Falcon Kitsap County subscribers including but
not limited to tier options, channel and programming offerings and comparable rates and
pricing packages.
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FA[CON CABLE FRANCHISE
October 28, 1998
6. SECTION 6 - PUBLIC, EDUCATIONAL AND GOVERNMENT USE
OF SYSTEM
6.1 PEG ACCESS
A. Designated PEG Access Providers
1. The City may designate PEG Access Providers, including itself, to control and
manage the use of all Access Facilities under this Franchise, including, without
limitation, the operation of Access Channels. To the extent of such designation by
the City, as between any Designated Access Provider and Falcon, the Designated
Access. Provider shall have sole and exclusive responsibility for operating and
managing such Access Facilities.
2. Falcon shall cooperate with Designated PEG Access providers in the use of the
PEG Access Facilities for the provision of PEG Access.
3. Except as provided in this Franchise, the City shall allocate Access Resources to
Designated Access Provider(s) only.
B. Channel Capacity and Placement
1. Existing Channel. The channel designated for PEG Access at the time of the
passage of this Franchise Ordinance by the City Council (Channel 3) shall remain a
PEG Access Channel throughout the term of this Franchise, subject to the
requirements of Secs. 614(a) and 615(g) of the Cable Act and the FCC regarding a
cable operator's obligation to carry the signals of local television stations on the
Cable System. Should the PEG Access Channel be required to be moved in virtue
of these Cable Act provisions, then Falcon shall provide subscribers with advance
notice of the PEG channel changes through regular billings and supplemental
advertisement and provide the public access provider with adequate compensation
to offset additional programming, advertising and administrative costs incurred due
to the channel changes.
2. New Channel. In conjunction with the rebuild and upon request of the City one
channel, in addition to the existing PEG channel, shall be furnished by Falcon for
PEG purposes within sixty (60) days following the request by the City. The City,
at its sole discretion, may elect to combine Public, Educational and local
Government programming on one or more access channels.
3. Additional Channels. One additional channel over and above the two channels
described in (1) and (2) above shall be made available each time that any channel is
used for PEG Access purposes with first run programming during fifty percent
(50%) of the hours between 10:00 a.m. and 10:00 p.m., during any consecutive ten
(10) week period. Based upon this criterion Falcon shall, within six (6) months
following a request by the City, provide another designated access channel for the
City's use.
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FALCON CABLE FRANCHISE
October 28, 1998
For the purposes of this section "first run programming" shall mean non-character
generated video programming in its initial cablecast on PEG Access channels or in
any of its first, second or third repeat cablecasts per week, except that al[er 20
repeat cablecasts, a program shall not be regarded as first run programming.
In no event shall Falcon be required to carry more than six PEG channels during
the term of this Franchise. Programming on additional required channels shall be
non-repetitive of the previous channel. If additional channels are designated for
PEG use, but after one year such channel(s) are not programmed at least twenty-
five percent (25%) of the hours between I0:00 a.m. and 10:00 p.m., the channel
may then revert back to Falcon for its unrestricted use within the terms and
conditions of this agreement. Falcon shall give the City a minimum of six (6)
months notice of its intention to withdraw any such channel under these
circumstances. The channel, however, shall not revert, during this caution period,
if the channel fulfills the requirements as discussed above. A reversion will be for a
minimum of two (2) years. Aider this period the City may re-acquire such
channel(s) upon demonstrated demand that it will fulfill the conditions of
programming usage.
4. Dieital Canacity. The PEG Access channels shall be delivered in analog format
unless and until Falcon delivers all of its channels in digital format. If Falcon
delivers all of its channels in digital format, then Falcon will provide for the
delivery of all existing PEG Access channels up to six (6) channels in digital
format, without special expense to either the PEG Access provider(s) or to
subscribers. PEG Access providers shall not be required to supply PEG
programming in digital format in order to have it cablecast on the system.
C, Financial Support for PEG Access
1. Pass-Through Support for PEG Access and the I-Net. In view of the fact that the
City's plans for the use of PEG Access Channels and the Institutional Network are
expected to change to meet conditions during the life of the Franchise, but the
requirement of funds for these uses is certain, Falcon shall provide to the City for
PEG Access and I-Net support an amount equal to twenty-one cents ($ .21) per
Subscriber per month, adjusted at the time of Falcon's annual rate adjustment at
the City's request by the percentage of change in the revised Consumer Price
Index (CPI) for all urban consumers as published by the U.S. Dept of Labor for
U.S. City Average for the most current period, during the entire term of the
Franchise, and during any extensions to the Franchise granted by the City. Falcon
shall be permitted to treat this contribution as an "external cost" as such term is
used in 47 CFR Sec. 76.922 on the date of this Franchise, to pass such cost
through to Subscribers, and to separately identify the contribution as a separate
item on Subscribers' bills in accordance with 47 CFR Sec. 76.985. The
contribution shall be paid to the City on a monthly basis along with franchise fees.
Page 27
FALCON CABLE FRANCHISE
October 28, 1998
2. Additional PEG Access Contribution In addition to the contribution described
above, Falcon shall contribute $5,400 for the purchase of capital equipment.
3. Additional PEG Suvport. In the spirit of cooperation and partnership Falcon shall
continue to support Public Educational and Government (PEG) activities by
providing such services as informational bill stuffers regarding access. Falcon shall
not be required to include PEG Access materials in its subscriber bills more than
twice annually, nor be required to pay for any extra postage which may be required
as a result of the inclusion of PEG Access materials. Falcon has supported these
services throughout the term of the prior franchise, and their cost shall not be
passed through to subscribers as a new external franchise cost. Nor shall the cost
of these services be regarded as pan of franchise fees, nor taken as an offset
against franchise fees.
D. Access Interconnections
Falcon shall make every effort to implement any interconnection with other systems
for PEG purposes in such a way that PEG programming changes are advertised as
specified in Section 6. I(B)(1).
E. Technical Quality
Falcon shall maintain all Access channels and connections to hardwired origination
points and Interconnections of Access Channels at minimally the same level of
technical quality and reliability as the level maintained for the rest of the system.
Falcon shall not cause any non-access programming to override Access Programming
on any Access Channel, except by verbal or written permission from the Access
Provider.
In the event Falcon makes any change in the Cable System and related equipment and
Facilities or in Falcon's signal delivery technology, which directly or indirectly
substantially affects the data or video signal quality or transmission of Access
Programming, Falcon shall at its own expense take necessary technical steps or
provide necessary technical assistance, including the acquisition of all necessary
equipment, to ensure that the capabilities of Access Providers or Access Programmers
are not diminished or adversely affected by such change.
6.2 INSTITUTIONAL NETWORK
A. Requirement for Constructing the Network
Falcon shall, in accordance with specific agreements and plans to be developed by the
City and Falcon, construct a Institutional Network (I-Net) to link public facilities
designated by the City with bi-directional video, data and audio signals. The I-Net
shall be primarily for the purpose of non-commercial public agency closed-circuit use,
for institutional communications not normally transmitted via the subscriber network
system.
B. Parameters of I-Net Agreements and Use
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FALCON CABLE FRANCHISE
October 28, 1998
The I-Net shall be constructed in accordance with agreements and plans developed by
the City and Falcon. The following parameters shall apply to such agreements, unless
mutually agreed otherwise by the City and Falcon:
1. Any charges by Falcon to the City for the construction of the I-Net or I-Net
Interconnections shall not exceed the incremental cost to Falcon, i.e., the actual
cost of constructing the I-Net over and above the cost of constructing Falcon's
Cable System for its own use.
2. There shall be no charge by Falcon to the City or to other public users for the use
of the I-Net.
3. Falcon shall cooperate with the City to ensure the most cost-effective construction
of the I-Net. To reach I-Net locations where communications needs do not justify
separate 1-Net plant construction, the I-Net may include the use of upstream and
downstream capacity on the residential system as such capacity exists or is
developed and is not in actual use by Falcon. In order to ensure that the City may
take full advantage of the cost savings to be realized from constructing the I-Net in
conjunction with any Falcon plant construction, the City shall provide Falcon with
a list of I-Net locations, and no less than 90 days prior to any plant construction
near the listed locations, Falcon shall notify the City of the planned construction,
and enter into discussions with the City to determine what I-Net installations, if
any, may be made a part of the construction. If Falcon fails to give the City such
90 day notice and enter into such discussions, and the City later elects to have
Falcon construct I-Net connections to locations that could have been served in
conjunction with Falcon construction carried out for its own purposes, then Falcon
shall perform the I-Net construction at a cost to the City which does not exceed
what would have been the incremental cost of the I-Net construction had it been
done along with Falcon's construction for its own purposes.
4. Falcon shall, at the request of the City, interconnect the I-Net to its residential
subscriber system, in order that programming which is transmitted via the 1-Net to
the System headend may be routed onto PEG Access channels.
5. Management and control of I-Net transmissions shall be the responsibility of the
City or its designee up to a point of demarcation to be jointly determined by the
City and Falcon at a later date. Falcon shall make available technical assistance,
beyond the point of demarcation, to ensure the effective and reliable operation of
the I-Net.
7. SECTION ? - REGULATORY PROVISIONS
7.1 INTENT
The City shall have the right to administer and regulate activities under the Franchise up to
the full extent permitted by applicable federal, state or local law.
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FALCON CABLE FRANCHISE
October 28, 1998
7.2 DELEGATION OF AUTHORITY TO REGULATE
The City reserves the right to delegate its regulatory authority wholly or in part to the
federal or State government, or to boards, commissions or other agents of the City.
7.3 AREAS OF ADMINISTRATIVE AUTHORITY
In addition to reserving its right to exercise all regulatory authority concerning the
Franchise, the City shall have the right to exercise administrative authority in areas
including but not limited to the following:
A. Administering and enforcing the provisions of this Franchise, including the adoption of
administrative rules and regulations to carry out this responsibility.
B. Coordination of the operation and development of Public, Educational and
Governmental Access channels, and Institutional Network capacity.
C. Planning and coordinating the development of all cable semites within the City.
D. Disbursing and utilizing Franchise Fee revenues paid to the City.
E. Administering the regulation of rates, to the extent permitted by law.
Falcon shall cooperate fully in facilitating the City's discharge of its administrative
authority.
7.4 REGULATION OF RATES AND CHARGES
A. Right to Regulate
The City expressly reserves the right to regulate Falcon's rates and charges in
accordance with applicable law as such law may provide during the term of the
Franchise.
B. Notice of Change in Rates and Charges
Throughout the term of the Franchise, subject to applicable law, Falcon shall give the
City and all subscribers within the City of Bremerton at least thirty (30) days notice of
any intended modifications or additions to subscriber rates or charges. Nothing in this
Subsection shall be construed to prohibit the reduction or waiving of rates or charges
in conjunction with promotional campaigns for the purpose of attracting subscri§ers or
users.
C. Rate Discrimination Prohibited
Within any category of subscribers, Falcon shall not discriminate among subscribers
with regard to rates and charges made for any service based on considerations of race,
color, creed, sex, marital or economic status, national origin, sexual preference, or
Page 30
FALCO~ CtmLe FRANCHISE
October 28, 1998
neighborhood of residence, except as otherwise provided herein or in accordance with
federal, state and local laws; and for purposes of setting rates and charges, no
categorization of subscribers shall be made by Falcon on the basis of those
considerations.
Nevertheless, Falcon shall be permitted to establish discounted rates and charges for
providing cable sen, ice to Iow-income disabled or Iow-income elderly subscribers. At
any time that the rate for Basic Service is $12 per month or more, Falcon shall offer a
discount of thirty percent (30%) from the normal charge for Basic Service and
installation to those individuals age sixty-two (62) or older or disabled who are the
legal owner or lessee/tenant of their residence. To qualify for the low-income senior
citizen or low-income disabled citizen rate, the individual shall meet the criteria
established by RCW 74.38.070. In order to remain eligible for the credit, the applicant
shall be required to reapply each year with the City of Bremerton.
7.5 REMEDIES FOR FRANCHISE VIOLATIONS
In addition to the remedies specified in Section 4.3 of this Franchise, the City, subject to
the provisions of Sections 7.6 and 2.9, has the right to assert the following remedies in the
event Falcon violates any provision of this Franchise:
A. Drawing upon or foreclosing all or any part of any security provided under this
Franchise, including without limitation the Construction Bond or Performance Bond
provided for under Sections 11.3 and 11.4; provided, however, such drawing or
foreclosure shall be only in such a manner and in such amount as the City reasonably
determines is necessary to remedy the default;
B. Commence an action at law for monetary damages or seek other equitable relief}
C. In the case of a substantial default of a material provision of this Franchise, declare the
Franchise to be revoked;
D. Seek specific performance of any provision, which reasonably lends itself to such
remedy, as an alternative to damages.
In determining which remedy or remedies for Falcon's violation are appropriate, the City
shall take into consideration the nature and extent of the violation, the remedy needed to
prevent such violations in the future, whether Falcon has a history of previous violations
of the same or similar kind, and such other considerations as are appropriate under the
circumstances.
7.6 PROCEDURE FOR REMEDYING FRANCHISE VIOLATIONS
A. Notice of Violation. In the event that the City believes that Falcon has not complied
with the terms of this Franchise, the City shall notify Falcon in writing, by certified
mail, of the exact nature of the alleged noncompliance.
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FALCO~ CAninE FRANCHISE
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B. Falcon's Right to Cure or Respond. Falcon shall have thirty (30) days from the receipt
of notice described above to (a) respond to the City contesting the assertion of
noncompliance, or (b) to cure such default or, in the event that by the nature of the
default such default cannot be cured within the thirty (30) day period, initiate
reasonable steps to remedy such default and notify the City of the steps being taken
and the projected date they will be completed. If Falcon cures default or initiates
corrective action within the thirty (30) day notice, no penalties will be imposed.
C. Public Hearing. In the event that Falcon falls to respond to the notice described herein
or cure the default pursuant to the procedures set forth above, the City shall schedule a
public hearing to investigate the default. The City shall give Falcon twenty (20)
calendar days notice of the time and place of the hearing and provide Falcon with an
opportunity to be heard.
7.7 ENFORCEMENT
In the event the City, after such hearing, determines that Falcon is in default of any
provision of this Franchise, the City may impose any of the remedies set out in Section 7.5
or Section 2.9 herein. Monetary penalties may be assessed retroactive to the date that
notification was provided in the following cases: l) where Falcon has been non-
responsive in correcting the default or 2) in the case of flagrant violations. Falcon shall
make payment within sixty (60) days of the date of determination by the City Council that
a fee, fine or penalty payment is imposed.
7.8 FAILURE TO ENFORCE
Falcon shall not be relieved of any of its obligations to comply promptly with any
provision of this Franchise by reason of any failure of the City to enforce prompt
compliance, and the City's failure to enforce shall not constitute a waiver of rights or
acquiescence in Falcon's conduct.
7.9 FORCE MAJEURE
If by reason of force majeure Falcon is unable in whole or in part to carry out its
obligations hereunder, Falcon shall not be deemed in violation or default with respect to
that part of such inability which is due to force majeure, during the continuance of such
inability due to force majeure. The term "force majeure" as used herein shall mean the
following: acts of Nature; strikes, lockouts or other industrial disturbances; acts of public
enemies; orders of the government of the United States of America~ or of the State of
Washington, or in their departments, agencies, political subdivisions, or officials; acts of
any civil or military authority; insurrections; riots; epidemics; landslides; earthquakes;
lightning; fires; hurricanes; volcanic activity; storms; floods; washouts~ droughts; restraint
of government and people; civil disturbances; explosions; partial or entire failure of
utilities; and similar occurrences outside the control of Falcon. Falcon agrees, however, to
give its best efforts to remedy as soon as possible, under the circumstances, the cause or
causes preventing Falcon from carrying out its responsibilities and duties under this
franchise agreement.
7.10 ALTERNATIVE REMEDIES
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FALCON CABLE FRANCHISE
October 28, 1998
No provision of this Franchise shall be deemed to bar the right of the City to seek or
obtain judicial relief from a violation of any provision of the Franchise or any rule,
regulation, requirement or directive promulgated thereunder. Neither the existence of
other remedies identified in this Franchise nor the exercise thereof shall be deemed to bar
or otherwise limit the right of the City to recover monetary damages for such violation by
Falcon, or to seek and obtain judicial enforcement of Falcon's obligations by means of
specific performance, injunctive relief or mandate, or any other judicial remedy at law or in
equity.
7.11 COMPLIANCE WITH THE LAW
Falcon shall comply with all federal and state laws and regulations, including regulations
of any administrative agency thereof, as well as all City codes, ordinances, resolutions,
rules and regulations of general applicability and other legitimate applications of the City's
police power, heretofore or hereafter adopted or established during the entire term of the
Franchise. Nothing in this Franchise shall limit, nor expand the City's right of eminent
domain under state law. Nothing in this Franchise shall be deemed to waive the
requirements of any lawful code or resolution of the City regarding permits, fees to be
paid or manner of construction.
8. SECTION 8 - REPORTING REQUIREMENTS
Unless otherwise set forth in the franchise agreement, the City may specify the form and
details of all reports, with Falcon given an opportunity to comment in advance upon such
forms and details. The City may change the filing dates for reports upon reasonable
request of Falcon.
8.1 MONTHLY AND QUARTERLY REPORTS
A. Monthly Records and Reports Falcon shall maintain monthly records showing the
number of service calls received by type, the percentage of service calls compared to
the subscriber base by type of complaint, the number of outages, the number of'
planned outages, and the approximate total duration of these outages. These reports
shall be in a form reasonably required by the City. The City may from time to time
make such reasonable amendments to the forms as are required to ensure that all
issues are reported clearly and accurately.
Within 30 days after the end of each month, Falcon shall submit a written report to the
City, which shall contain a listing of all categories of Gross Revenues earned and gross
receipts collected by Falcon or any cable operator, derived from the operation of the
Cable System franchised hereunder for the previous month, in sufficient detail and with
sufficient explanation to enable the City to understand the report and to verify the
accuracy of Franchise Fee payments.
B. Ouarterly Renorts. In order that the City may be informed of Falcon's success in
achieving satisfactory customer relations in its telephone answering functions, Falcon
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FALCON CABLE FRANCHISE
October 28, 1998
shall, upon request by the City, and routinely no less than quarterly, provide the City
with a summary that will provide, at a minimum, the following
I. Number of calls received per day;
2. Time taken to answer;
3. Average talk time;
4. Number of calls abandoned by the caller;
5. Average hold time;
6. Percentage of time all lines busy;
7. An explanation of any abnormalities.
8. Subscriber levels by categories.
This data will be compared to minimum standards of the FCC Customer Service
obligations, Part 76.309, Subpart II or as amended incorporated herein by reference.
Calls for service generated during period of system outages caused by an emergency
affecting more than twenty-five (25) customers may be excluded from the service
response calculations. The City shall have the sole determination as to what
constitutes a system failure due to emergency, (subject to the provisions of FCC
Customer Service Standards regarding the nature of normal operating conditions),
and as to which calls shall be excluded from the service level calculations.
8.2 ANNUAL REPORT
No later than one hundred twenty (120) days following the end of Falcon's fiscal year each
year, Falcon shall present a written report to the City which shall include:
A. (1) A year-end audited financial report (or i£an audited report is unavailable then an
unaudited and certified report) for Falcon Video Communications for its previous
fiscal year. However, if and when Falcon Video should become part of Falcon
Holding Group, L.P. (FHGLP), then the submittal ofFHGLP's 10-K Report will
satisfy this requirement. In the event the 10-K or any audited financial report has
not been published by the date due under this section, then the 10-K or audited
financial report shall be deemed presented on time if presented within thirty (30)
days after publication.
(2) A revenue statement for the Franchise area, certified by an officer of Falcon, which
shall include statements of Gross Receipts from all sources, gross revenues from
each category of service. All revenue reports required under this section shall be
presented to the City accompanied by such notes and explanations as are required
to ~ully understand the reports. Such notes and explanations shall include, but not
be limited to, an explanation of any and all deductions made from Gross Revenues
in order to arrive at Gross Receipts for the calculation of Franchise Fees to be paid
to the City.
B. A summary ofthe previous year's activities for the Franchise Area~ including, but not
limited to, the total number of subscribers for each category of service, the number of
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FALCON CABLE FRANCHISE
October 28, 1998
homes passed, miles of overhead and underground coaxial and fiber optic cable plant,
other system facilities and equipment constructed, any services added or dropped, and
any technological changes occuring in the system.
C. A summary of complaints received, with a summary of how the complaints have been
resolved and how long the resolution took, provided that nothing in this subsection
shall require Falcon to provide the City with subscriber information in violation of
Section 631 of the Cable Act.
D. Plans for future construction, technology changes, and services.
E. A list of all officers, members of the Board of Directors, and all partners or
stockholders holding ten percent (10%) or more of Falcon, unless unchanged from the
previous year (however, if and when Falcon should submit a 10-K Report, which
contains this information, this provision will be deemed satisfied and a separate list will
not be necessary).
F. A copy of all of Falcon's written customer service rules and regulations, a statement of
current billing practices and a sample copy of the bill format, a copy of the current
subscriber service contract, and any technical requirements applicable to subscribers
and users of the Cable System.
8.3 MONITORING AND COMPLIANCE REPORTS
Upon request, Falcon shall provide a written report of any and all FCC technical
performance tests of the residential network required in FCC Rules and Regulations as
now or hereinafter constituted.
8.4 ADDITIONAL REPORTS
Falcon shall prepare and furnish to the City or its designee, upon request, at the times and
in the form prescribed by the City or such other regulatory entity, such additional reports
with respect to Falcon's operation, affairs, transactions, or property, as may be reasonably
necessary and appropriate to ensure compliance with the material provisions of this
Franchise, or to permit the performance of any ofthn rights, functions or duties of the City
or such other regulatory entity in connection with the Franchise.
8.5 COMMUNICATIONS WITH REGULATORY AGENCIES
Upon ten (10) business days written request by the City, a summary, or, if the City so
requests, actual copies of all petitions, applications, communications and reports submitted
by Falcon or any affiliate, to the FCC or any other federal or state regulatory commission
or agency having jurisdiction with respect to any matter affecting construction or
operation of the Cable system in the City, and any response therefrom, shall be submitted
to the City for review, providing that such petitions, applications, communications, reports
and responses are required by the City to ensure compliance with the terms herein.
In addition, Falcon and its affiliates shall within ten (10) business days of any
communication to or from any judicial or regulatory agency regarding any alleged or
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FALCON CABLE FRANCHISE
October 28, 199g
actual violation of a law, regulation or other requirement relating to the system, provide
the City a copy of the communication, whether specifically requested by the City to do so
or not.
8.6 PRESERVATION OF CO~FID£~rL~L INFORMATION
The City shall protect information designated as confidential by Falcon to the maximum
extent permissible under RCW chapter 42. 17.
9. SECTION 9 - CUSTOMER SERVICE POLICIES
9.1 RESPONSE TO CUSTOMERS AND COOPERATION WITH CrrY
Falcon shall promptly respond to all requests for service, repair, installation and
information from subscribers. Falcon acknowledges the City's interest in the prompt
resolution of all cable complaints and shall work in close cooperation with the City to
resolve complaints.
9.2 COMPLIANCE WITH FCC STANDARDS
Falcon shall at all times be in compliance with FCC Customer Service obligations 76.309,
Subpart II, or as may be amended. The City, however, reserves the right to impose more
stringent requirements if it deems existing standards to be inadequate to deal with actual
customer service problems, and if its adoption of such requirements includes a public
hearing in which Falcon among others is permitted to be heard.
9.3 FAILURE TO IMPROVE CUSTOMER SERVICE
The City or its designee shall review telephone response and customer service information
with Falcon. It will be assumed that improvements will be made by Falcon in the areas of'
non-compliance from the last reporting period. Failure to do so may result in penalties
being imposed.
An unsatisfactory record will also result in the hearings being made part of an exhibit
under Section 626(c)(1)(A) and (B) of The ,4ct alleging that such practices have failed to
conform with future refranchising requirements as stated therein. In addition Falcon's
Corporate office shall be advised of the City's findings.
9.4 REFUNDS FOR OUTAGES
Upon request, full credit will be given to a subscriber for the period of an outage if the
subscriber was without service for a period exceeding twenty-four (24) hours.
9,5 TERMINATION OF SUBSCRIBER SERVICE
Upon termination of any subscriber, Falcon shall promptly remove all of its facilities and
equipment, excepting drop cable and internal wiring, from the premises of such subscriber
upon subscriber's request, except as provided in subsection (B), below.
A. Charees Uoon Failure to Recover Equipment Upon termination ofservices, should
Falcon not promptly collect its equipment from the premises of the subscriber within
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FALCON CABLE FRANCHISE
October 28, 1998
five (5) working days, the subscriber shall not be charged for continued services, nor
for failure to return any equipment.
B. E ui ment Returns. Should Falcon require the subscriber to return the equipment,
Falcon shall establish convenient hours including evening and weekend hours, for
return of the equipment, and the subscriber shall have a reasonable length of time in
which to return the equipment. The subscriber shall be advised of the date by which
the equipment must be returned before a charge may be imposed for failure to return
equipment.
9,6 DEFINITION OF "COMPLAINT"
For the purposes of Sections 8.2 and 9, with the exception of Subsection 9.7, "complaint"
shall mean any communication to the City by a subscriber or person who has requested
and has a right to be a subscriber on the cable system, expressing dissatisfaction with any
service or other performance or lack thereof by Falcon under the obligations of this
Franchise; provided that the communication shall be regarded as a complaint only if the
person expressing the dissatisfaction has already expressed it to Falcon, and Falcon has
failed to remedy the cause of the dissatisfaction within a reasonable period of time and in a
manner consistent with the requirements of this Franchise.
9.7 CUSTOMER SERVICE AGREEMENT AND MANUAL
Falcon shall provide to subscribers a comprehensive service agreement and a customer
manual for use in establishing subscriber service. This material shall, at a minimum,
contain the following:
A. Falcon's procedure for investigation and resolution of subscriber service complaints
B. Services to be provided and rates for such services.
C. Billing procedures.
D. Service termination procedure.
E. Change in service notifications.
F. Liability specifications.
G. Converter/subscriber terminal equipment policy.
H. Breach of Agreement specification.
I. The name, address, and phone number of the person identified by the City as
responsible for handling cable questions and complaints for the City. This information
shall be prominently displayed in the manual, and Falcon shall submit the information
to the City for review and approval as to its content and placement in the manual prior
to publication. Following initial approval by the City no subsequent approval shall be
required unless changes in content or replacement of material are made.
A copy of the customer service manual shall be provided to each subscriber at the time of
initial and any re-connection hookup, and thereafter no more than thirty (30) days
following any update of the manual reflecting material policy changes, and at any time the
manual is requested by the subscriber.
10. SECTION 10 - LINE EXTENSION POLICY
Page 3 7
FALCO~ CABLE FRANCHISE
October 28, 1998
10.1 STANDARD INSTALLATION
Falcon shall make service available, within sixty (60) days and at standard installation rates
and standard service rates, for every potential subscriber within the Franchise Area
existing at the time of the acceptance of this Franchise or in the future, subject to the
provisions of Section 10.3:
A. Whose dwelling is one of a minimum of 20 dwelling units per linear aerial cable mile
(30 units per underground mile), or 5 dwelling units per 1/4 aerial mile (8 units per
underground ~A mile), from the nearest existing cable plant; or
B. Whose dwelling is situated such that cable constructed from the nearest existing cable
plant would pass an average of 20 homes per linear aerial mile (30 homes per
underground mile); or
C. Where connection to the potential subscriber's dwelling from cable plant constructed
as required under this Franchise requires no more than a 150-foot drop cable.
10.2 ISOLATED AREAS
Potential subscribers requesting service but requiring service extended beyond the
standard installation and service provisions under Sectionl0.1 shall be provided the first
150 feet of cable at the prevailing installation rate. Cable and service required beyond the
initial 150 feet will be provided under the following circumstances:
A. Where the potential subscriber, or any group including the potential subscriber, pays in
advance the direct and incremental cost of extending the line and making the
installation; or
B. Where the potential subscriber and Falcon reach an independent agreement for the
provision of service, so long as the agreement does not involve any violation of the
requirements and standards of this Franchise.
10.3 ANNEXED AREAS
In the event that the City annexes any area, Falcon shall make service available under the
terms of this Franchise within six (6) months following annexation. However, if the newly
annexed area is being provided cable service by an operator other than Falcon, nothing in
this Franchise shall obligate Falcon to provide service to that area so long as the other
operator provides facilities and services comparable to the facilities and services provided
for under this franchise.
11. SECTION 11 - COMPENSATION AND FINANCIAL PROVISIONS
11.1 FRANCHISE FEES
During the term of the Franchise, unless specifically requested to do so by the City, Falcon
shall not pay a Franchise Fee to the City. However, within 30 days following a written
fi~ncgv~Jkan'doc Page 38
FALCON CABLE FRANCHISE
October 28, 1998
request by the City to do so, Falcon shall, during the term of the Franchise, pay to the City
a Franchise fee consisting of a percentage of Falcon's Gross Receipts, such percentage to
be specified by the City, not to exceed five percent (5%) of Gross Receipts. If any law,
regulation or valid rule alters the 5% franchise fee ceiling imposed by the Cable Act, then
the City shall have the right to alter the Franchise Fee percentage to be paid by Falcon, up
to the maximum allowed by law. Nothing in this Section shall alter or affect the right of
the City to impose utility taxes, business and occupation taxes, or similar fees, upon
Falcon, however, the aggregate total of such taxes and fees when taken together with the
franchise fee shall not exceed seven (7) percent.
A. Franchise Fees shall be paid monthly to the City or to such bank account of the City,
as may be designated by the City Treasurer, to be received on or before the thirtieth
(30th) day of the following month. Not later than the date of each payment, Falcon
shall file with the City a written statement signed by Falcon Officer or authorized
representative, which identifies in detail on forms furnished by the City the sources and
amounts of each category of Gross Revenues earned and Gross Receipts collected by
Falcon during the month for which payment is made, following the provisions of
Section 8.1. No acceptance of any payment shall be construed as an accord that the
amount paid is, in fact the correct amount, nor shall such acceptance of payment be
construed as a release of any claim which the City may have for further or additional
sums payable under the provisions of this Section.
B. Any Franchise Fees owing pursuant to this Franchise which remain unpaid more than
10 days after the dates specified herein shall be delinquent and shall thereafter accrue
interest at twelve (12) percent per annum or two (2) percent above prime lending rate
as quoted by major Seattle banks, whichever is greater.
C. The period of limitation for recovery of any Franchise Fee payable hereunder shall be
six years from the date on which payment by Falcon is due. Unless within six years
from and after such payment due date the City makes written request for an audit of
Falcon's franchise fee payments, and upon a finding of underpayment of fees requests
payment of franchise fees due, such recovery shall be barred and the Franchising
Authority shall be stopped from asserting any claims whatsoever against Falcon
relating to any alleged deficiencies.
D. The City or its authorized agent may at any time and at the City's own expense
conduct an independent audit of the Gross Revenues of Falcon in order to verifiy the
accuracy of Franchise Fees paid to the City. Falcon and each parent company of
Falcon and each affiliate shall cooperate fully in the conduct of such audit. In the
event it is determined through such audit that Falcon has underpaid Franchise Fees by
one percent (1%) or more than was due the City, then Falcon shall reimburse the City
for the entire cost of the audit and any back Franchise Fees with interest accrued at
twelve (12) percent per annum or two (2) percent above prime lending rate as quoted
by major Seattle banks, whichever is greater, within 30 days of the completion and
acceptance of the audit by the City. If it is determined through such audit that Falcon
Page 39
FALCON CABLE FRANCHISE
October 28, 1998
has overpaid Franchise Fees by one percent (1%) more than was due the City, then the
City shall reimburse Falcon for all Franchise Fees overpaid.
11.2 OPEN BOOKS AND RECORDS
Falcon shall manage ail of its operations in accordance with a policy of keeping all books
and records related to the provision of Cable Service open and accessible to the City. The
City shall have the right as necessary for effectively administering and enforcing this
Franchise to inspect at any time during normal business hours upon reasonable notice, ail
books, records, electronic or optical files, maps, plans, service complaint logs,
performance test results, records required to be kept by Falcon and any parent company
and affiliate which directly relate to the operation of the Cable System in the Franchise
Area, including either a year-end financial report for Falcon Video or the 10-K Report for
FHGLP, whichever is current. Access to the aforementioned records shall not be denied
by Falcon to representatives of the City on the basis that said records contain
"proprietary" information. However, to the extent allowed by Washington law, the City
shall protect the trade secrets and other confidential information of Falcon and any parent
company. All books and records relating to Faicon's acitivities under the Franchise shall,
upon request, be made available in the City of Bremerton.
Falcon agrees to meet with a representative of the City upon request to review its
methodology of record-keeping, financial reporting, computing franchise fee obligations,
and other procedures the understanding of which the City deems necessary for
understanding the meaning of reports and records.
The City agrees to request access to only those books and records, in exercising its rights
under this Section, which it deems reasonably necessary as part ora bona fide regulatory
or enforcement effort related to the material provision of this Franchise for the
enforcement and administration of this Franchise.
11.3 CONSTRUCTION PERFORMANCE BOND
Before beginning any construction related work in the City of Bremerton related to the
system upgrade and/or rebuild of the current system, Falcon shall furnish a construction
bond to the City. The bond shall be issued by a surety company authorized to do business
in the State of Washington, shall be reasonably acceptable to the City, and shall be in a
sum of $25,000, or the full amount of the estimated cost of construction, whichever is
greater. Falcon shall pay all premiums and costs associated with maintaining the bond,
and shall at a minimum keep the $25,000 bond in full force and effect at all times.
11.4 FRANCHISE PERFORMANCE BOND
Prior to the effective date of this Franchise, Falcon shall furnish an irrevocable
Performance Bond, issued by a surety company authorized to do business in the State of
Washington in an amount of not less than $50,000, guaranteeing performance of all
obligations under the Franchise, except the construction work related to the upgrading or
rebuilding of the current system for which a separate bond is required. The franchise
performance bond shall be in a form reasonably acceptable to the City and shall be
Page 40
FALCON CABLE FRAIVCHISE
October 28, 1998
maintained during the entire term of the Franchise, including any extensions, and thereafter
until Falcon or any successor or assign has liquidated all of its obligations arising form this
Franchise.
Neither the provisions of this Section nor any Performance Bond accepted by the City
pursuant thereto, nor any damages or other amounts recovered by the City pursuant
thereto, nor any damages or other amounts recovered by the City thereunder shall be
construed to excuse faithful performance by Falcon or to limit liability of Falcon under this
Franchise either to the full amount of the Performance Bond or otherwise, except as
otherwise provided herein.
11.5 RECOURSE AGAINST BONDS AND OTHER SECURITIES
Bonds and other security may be utilized by the City for the purposes, including, but not
limited to, reimbursement of the City by reason of Falcon's failure to pay the City any
sums due under the terms of this franchise, reimbursement &the City for reasonable costs
borne by the City to correct franchise violations not corrected by Falcon after due notice;
and monetary remedies or damages assessed against Falcon due to default or violations of
the franchise.
A. Recourse. In the event the Franchise has been declared revoked or terminated under
the terms of this Franchise, and if Falcon fails, within thirty (30) days of mailing of the
City's finding, to pay the City any franchise fee or tax, penalties, or monetary
sanctions, or fails to perform any of the conditions of the franchise, the City may
thereai~er foreclose against the performance or construction bonds and/or withdraw
from any other security an amount sufficient to compensate the City's damages, with
interest at the legal rate. Upon such foreclosure or withdrawal, the City shall notify
Falcon in writing, by First Class Mail, postage prepaid, of the amount and date thereof.
B. Restoration. Within thirty (30) days after mailing notice to Falcon that the City has
foreclosed Falcon's construction or performance bond or that any amount has been
withdrawn by the City from the other security pursuant to subsection "A" above,
Falcon shall deposit such further bond or sum &money, or other security, as the City
may require, sufficient to meet the requirements of this Franchise.
C. Rights of the City. The rights reserved to the City with respect to any bond or security
are in addition to all other rights &the City whether reserved by this Franchise or
authorized by law, and no action, proceeding, or exercise of a right with respect to any
bond or other security shall constitute an election or waiver of any rights or other
remedies the City may have.
11.6 INDEMNIFICATION BY FALCON
A. Falcon shall, at its sole cost and expense, indemnify, defend, and hold harmless the
City, its officials, boards, commissions, agents and employees against any and all
damages, costs, expenses, losses, taxes, claims, suits, causes of action, proceedings,
liabilities and judgments (collectively the "indemnified liabilities), arising out of the
Page 41
FALCON CABLE FRANCHISE
O~tol~r 28, 1998
operation and construction of the cable system under this Franchise, including the use,
generation, transportation, storage, treatment or disposal of any hazardous or
dangerous substances, wastes, or materials; except that no such requirement shall
apply where such indenmified liabilities are occasioned solely by the negligence, gross
negligence, or intentional misconduct by the City or its officials, boards, commissions
or employees while acting on behalf of the City. These indemnified liabilities shall
include, but shall not be limited to, the cost of any required or necessary repair,
cleanup, or detoxification, natural resource damage claims, damages or penalties
arising out of copyright infringements, and damages arising out of any failure by
Falcon to secure consents from the owners, authorized distributors or licensees of
programs to be delivered by Falcon's Cable System whether or not any act or omission
complained of is authorized, allowed, or prohibited by the Franchise. Indemnified
expenses shall include, bu not be limited to, all out-of-pocket expenses, such as costs
and attorneys', and accountants' fees, and shall also include the reasonable value of
any services rendered and separately billed by the Office of the City Attorney or any
outside consultants employed by the City.
B. If Falcon fails to defend as required in Subsection (A) above, then Falcon agrees to
and shall pay all expenses incurred by the City, and if officers, agents, and employees,
in defending itself with regard to all claims, damages, and penalties mentioned in
subsection (A) above. These expenses shall include all out-of-pocket expenses, such as
attorney fees, and shall also include the reasonable value of any services rendered by
any employees of the City.
11.7 FALCON INSURANCE
Falcon shall maintain, throughout the term of the Franchise, a policy of comprehensive
commercial liability or comprehensive general liability insurance and a policy of
automobile liability, issued by an insurance carrier authority to conduct the business of
insurance in the State of Washington by the Washington State Insurance Commissioner.
Said policy or policies shall pay on behalf of and defend Falcon and the City, its officials,
boards, commissions, agents or employees from any and all claims by any person
whatsoever (including the costs, defense costs, attorneys' fees and interest arising
therefrom) on account of personal injury, bodily injury or death ora person or persons or
damages to property occasioned by the operations under this Franchise, or alleged to have
been so incurred or so caused, with a minimum combined single limit of not less than
$1,000,000 per occurrence and a minimum annual aggregate limit of $5,000,000. A
certificate of insurance evidencing this coverage and identifying the City as an additional
insured shall be provided to the City's Risk Manager. The certificate shall also provide for
30 days advance written notice to the City, by the insurer, prior to any coverage
modification or cancellation.
The City reserves the right to revise the policy requirements set forth above, during the
term of the franchise, as reasonably necessary to provide adequate coverage.
11.8 TAXES
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FALCON CABLE FRANCHISE
October 28, 1998
Nothing in this Franchise shall limit Falcon's obligation to pay applicable local, State, or
Federal taxes.
11.9 FRANCHISING COSTS
Falcon shall pay to the City upon acceptance of this franchise the full amount of the City's
out-of-pocket costs associated with the franchising process up to $5,000. Costs shall
include such items as consulting fees, expenses, and the costs of publishing notices and
ordinances, etc. Such payment is not to be considered in lieu offranchisefee or tax
payments. Payment is due within thirty (30) days of receipt of appropriate invoice fi'om
the City.
12. SECTION 12 - MISCELLANEOUS PROVISIONS
12.1 POSTING AND PUBLICATION
Falcon shall assume the cost of posting and publication of this Franchise as such posting
and publication is required by law and such is payable upon Falcon's filing of acceptance of
the Franchise.
12.2 GUARANTEE OF PERFORMANCE
Falcon agrees that it enters into the Franchise voluntarily in order to secure and in
consideration of the grant from the City of an eight-year Franchise. Performance pursuant
to the terms and conditions of this Franchise agreement is guaranteed by Falcon.
12.3 GOVERNING LAW AND VENUE
The franchise shall be governed by and construed in accordance with the laws of the State
of Washington, and Falcon agrees that any action brought relative to enforcement of this
franchise shall be initiated in the Superior Court of Kitsap County, and shall not be
removed to a federal court. However, in the case that Falcon is adversely affected by any
final determination made by the City under Sections 621(a)(1), 625 or 626 of the Cable
Act, Falcon may commence an action within 120 days after receiving notice of such
determination, which may be brought in a) the district court of the United States for the
judicial district in which the System is located; or b) in any State of Washington court of'
general jurisdiction having jurisdiction over the City and Falcon.
12.4 SEPARABILITY
If any Section, sentence, paragraph, term, or provision hereof is determined to be illegal,
invalid, or unconstitutional, by any court of competent jurisdiction or by any state or
federal regulatory authority having jurisdiction thereof, such determination shall have no
effect on the validity of any other Section, sentence, paragraph, term or provision hereof,
all of which will remain in full force and effect for the term of the Franchise, or any
renewal or renewals thereo£
12.5 CONSENT
Wherever the consent or approval of either Falcon or the City is specifically required in
this Franchise, such consent or approval shall not be unreasonably withheld.
flImct~}'a~d°c Page 43
FALCON CABLE FRANCHISE
October 28, 1998
12.6 ORDINANCES TERMINATED
The cable television franchise as originally granted by Ordinance No. 3975, shall be
deemed terminated upon the effective date of this Franchise, provided that any unpaid
Franchise Fees and other outstanding liabilities and obligations of Falcon to the City under
such pre-existing franchise shall survive such termination.
12.7 NO THIRD PARTY BENEFICIARIES
There shall be no third party beneficiaries of this Franchise.
12.8 FRANCHISE ORDINANCE ACCEPTANCE
Falcon, within thirty (30) days after the date of passage of the Franchise by the City
Council, shall execute and return to the City three (3) original Franchise Agreements, in
which Falcon shall declare that it has carefully read the terms and conditions of this
Franchise and accepts all of the terms and conditions of this Franchise and the Franchise
and agrees to abide by the same. In accepting the Franchise, Falcon shall indicate that it
has relied upon its own investigation of all relevant facts, that it has had the assistance of
counsel, that it was not induced to accept a Franchise, that this Franchise represents the
entire agreement between Falcon and the City, and that Falcon accepts all reasonable risks
related to the interpretation of this Ordinance and the Franchise. The Franchise
Agreements shall be returned to the City accompanied by the Construction Bond and
Performance Bond and evidence of insurance, all as provided in Sections 11.3, 11.4, and
11.7 of this Franchise. In the event Falcon fails to submit a Franchise Agreement as
provided for herein, or fails to provide the required accompanying documents, the
Franchise shall be null and void.
12.9 INDEPENDENT CONTRACTORS
This agreement shall not be construed to provide that Falcon is the agent or legal
representative of the City for any purpose whatsoever. Falcon is not granted any express
or implied right or authority to assume or create any obligation or responsibility on behalf
of or in the name of the City or to bind the City in any manner whatsoever.
12.10 ENTIRE AGREEMENT
This agreement, including the appendices that are attached hereto and incorporated herein
by reference represents all of the covenants, promises, agreements, and conditions, both
oral and written, between the parties. However, the City reserves the right to waive any
of these sections without affecting the applicability of other sections not so specifically
waived. Waiver of any Franchise requirement by the City shall be in writing in order to be
effective.
12.11 SUCCESSORS AND ASSIGNS
This Franchise Agreement, including all appendices, exhibits and addenda, shall be binding
to Falcon, its heirs, successors, and assigns.
12.12 NOTICE
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FALCON CABLE FKANCHISE
October 28, 1998
Written notices shall be deemed to have been duly served if delivered in person to the
individual or emity for whom it was intended, or if delivered at or sent by registered or
certified United States mail to the last business address known to the party who gives the
notice.
All notices and requests shall be addressed to the City of Bremerton and Falcon as follows
CITY City Clerk
City of Bremerton
239 Fourth Street
Bremerton WA 98337
Falcon Falcon Video Communications, L.P.
4519 SE Mile Hill Drive
Port Orchard, WA 98366
Falcon Holding Group
Attn: Howard Gan
10900 Wilshire Boulevard
15th Floor
Los Angeles, CA 90024
12.13 EFFECTIVE DATE
This Franchise shall be effective ,//~, z~/~rA · ~. /~. Provided, however, that if
Falcon does not accept this Franchise pursuant to Se~ion 12.8 and comply with all
conditions for such acceptance set forth herein within thirty (30) days at, er passage of this
Franchise Ordinance, this Franchise shall be null and void.
12.14 APPLICATION FEE
Prior to consideration of this Franchise by the City Council, Falcon shall pay to the City a
non-refundable application fee in the amount of five thousand dollars ($5,000). Such
application fee shall not be regarded as franchise fees, nor payment in lieu of franchise
fees.
12.15 FALCON RESPONSIBILITY FOR COMPLIANCE DOCUMENTATION
It shall be the responsibility of Falcon to maintain all management information and record-
keeping systems which will permit the clear, complete, and timely documentation of
compliance with the requirements of this Franchise, including but not limited to the
Customer Service Standards identified in Section 9.2; and any request by the City for such
documentation shall be satisfied by Falcon no later than 15 days following the request.
APPROVED bythe City Council this~p_d~day of /(~25-~-~.d; ,199f_.
t
PASSED by the City Council this 6/~4-~(; dayof .~..,~-r.~:,~u/~ ,199o°.
(
~:l~t~a,,.do* l~age 45
FALCON CABLE FRANCHISE
Octo~e, r 28, 1998
~ ~A~V1D FARR, Council~side'~~
Approved this ~_____.~_~ day of~...~199..~.
ATTEST:
~. ~ ~X~[~ (CityCler~~
KATHLEEN L. McCLUSKEY,
EFFeCTiVE DATE
F.., ,_. ~,., .0..: DATE //-
ORDiNAnCE NUMBER
Page