The URL can be used to link to this page

Home My WebLink Aboutord2011-044 WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2011- 344 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Engels p 10/25/11 INTRO Originator: J�1 (i .i Division Head: gg 11 / 22 / 2011 Hearing FMA OCR 2011 Dept. Head: p�-g p° . CO DLG a la 41Y OU T Prosecutor: lil � p � HA C COUNCIL Purchasing/ dget:• PK Execut ' say- l �t Y9 r r TITL °YI PO MENT: Ordina ce granting assignment of non-exclusive franchise to Wave Division I, LLC, d/b/a Wave Broadband("Assignee ") to allow for the continued provision of telecommunication services. ATTACHMENTS: Ordinance Memo SEPA review required? ( ) Yes ( XX ) NO Should Clerk schedule a hearing ? ( XX ) Yes ( ) NO SEPA review completed? ( ) Yes ( ) NO Requested Date: October 25, 2011 SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite. RCW or WCC as appropriate. Be clear in explaining the intent of the action.) RCW 36. 55 and § 9.30 of the Home Rule Charter provides for the granting of franchises to public and private utility companies for use of County rights of way. The original franchise was granted to Black Rock Cable Inc. under Ordinance No. 92-001. Per sectiot 17 of the Franchise, Assignee Wave Broadband is requesting consent from the Council for transfer of the Franchise. COMMITTEE ACTION:: COUNCIL ACTION: 10 / 25 / 2011 : Introduced 11 / 22 / 2011 : Council Adopted 7 - 0 Ord . 2011 -044 Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Ord . 2011 -044 Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County 's website at: www. co. whatcan. wa. us/council. Page 0 v1 .0 2111200871 Page : 1 of 4 12/08/2011 12 : 25 PM ORD $65 . 00 Whatcom County , WA Request of : WHATCOM COUNTY COUNCIL RETURN DOCUMENT TO : MARINA ENGELS WHATCOM COUNTY COUNCIL OFFICE DOCUMENT TITLE ( S ) : O RDINANCE 2011 - 044 APPROVING ASSIGNMENT OF FRANCHISE FROM B ROADSTRIPE, LLC TO WAVE DIVISION I, LLC d / b/ a WAVE BROADBAND REFERENCE NUMBER( S ) OF DOCUMENTS ASSIGNED OR RELEASED : Ordinance Number: 2011 -044 Additional reference numbers found on page of document. G RANTOR ( S ) : Whatcom County Additional grantors found on page of document. G RANTEE ( S ) : WaveDivision I, LLC d/b/a Wave Broadband Additional grantees found on page of document. ABBREVIATED LEGAL DESCRIPTION ( Lot, block, plat, or section , township, range) N/A Additional legal description can be found on page of document. ASSESSOR'S PARCEL NUMBER : None SPONSORED BY : Consent PROPOSED BY : Executive/Public Works INTRODUCTION DATE : 10 / 25 / 2011 ORDINANCE NO . 2011 -044 APPROVING ASSIGNMENT OF FRANCHISE FROM BROADSTRIPE , LLC TO WAVE DIVISION I , LLC d/b/a WAVE BROADBAND WHEREAS, Whatcom County, Washington ( "Grantor" ) granted to Black Rock Cable, Inc ., • ( " Black Rock" ) a franchise as set forth in Ordinance No . 92-001, dated January 7, 1992, to own and operate a cable television system in Whatcom County (the "System" ) and to provide cable television and other lawful services with a term that is due to expire on January 7, 2017 (the " Franchise" ) ; and WHEREAS, Black Rock, transferred all rights, obligations, title and interest in the Franchise to Cable Plus, L. P . under Ordinance 96-038, dated October 1, 1996; and WHEREAS, Cable Plus, L. P ., transferred all rights, obligations, title and interest in the Franchise to NewCo, LLC, of which Cable Plus, L. P . was the sole member, under an agreement dated July 23, 1999 ; and WHEREAS, NewCo, LLC transferred all rights, obligations, title and interest in the Franchise to Millennium Digital Media Systems, LLC; transfer of non -exclusive franchise rights recognized and approved under Ordinance 99-038, dated August 10, 1999; and WHEREAS, Millennium Digital Media Systems, LLC officially changed its name to Broadstripe, LLC ( " Broadstripe" ) effective June 26, 2008; and WHEREAS, Section 17 of the Franchise addresses the need for consent in writing from the County Council prior to the sale, transfer, or assignment of any interest in the Franchise; WHEREAS, on August 16, 2011, Broadstripe and other related parties entered into a Purchase and Sale Agreement ( "Agreement" ), with WaveDivision I, LLC, d/b/a Wave Broadband, ( "Assignee" ) for the sale of certain assets of Broadstripe to Assignee, and for the assignment, upon Grantor' s consent, of the Franchise from Broadstripe to Assignee (the "Transaction " ); and WHEREAS, Broadstripe and Assignee filed an FCC Form 394 Application for Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise with Grantor on or about August 19, 2011; and WHEREAS, Grantor has duly conducted a thorough review and investigation into the legal, technical and financial qualifications of Assignee to own and operate the System in light of the above- referenced FCC Form 394; and WHEREAS, all written comments and staff reports have been received , and made a part of the record ; and WHEREAS, following review and investigation , Grantor has concluded that Assignee has established that it meets the legal, technical and financial criteria to operate the System and has satisfied all criteria set forth in and/or under all applicable local, state and federal laws, rules and regulations . NOW, THEREFORE, BE IT RESOLVED, that, in consideration of the foregoing, Grantor consents to the transactions contemplated by the Agreement and further resolves as follows : 1 . Grantor consents to the assignment of the Franchise from Broadstripe to Assignee effective upon the closing of the Transaction . 2 . Grantor confirms that : ( a ) the Franchise was duly issued , is valid and enforceable in accordance with its terms, and is in full force and effect; ( b ) other than as set forth in this Consent and Approval , there have been no amendments or modifications to the Franchise; ( c ) there are no defaults under the Franchise, and no event has occurred and is continuing which , with the giving of notice or passage of time, or both, could constitute a default thereunder; and ( d ) upon the assignment of the Franchise from Broadstripe to Assignee at the closing of the Transaction , the duly authorized franchisee under the Franchise will be Assignee . 3 . Assignee may, without obtaining prior consent of Grantor, from time to time : ( a ) assign or transfer its assets, including the Franchise, provided , however, that such assignment or transfer is to a parent or subsidiary of Assignee or another entity under direct or indirect control of the parent of Assignee; ( b ) restructure its debt or change the ownership interests among its equity participants or replace its equity participants, in whole or in part, and/or its affiliates; or (c) pledge or grant a security interest ( i ) in its assets, including, but not limited to, the Franchise, or ( ii ) of interests in Assignee, to any lender( s ) for purposes of securing indebtedness . 4. The Franchise and this Consent and Approval were and are made, passed and adopted in accordance with all applicable notice and procedure requirements under all laws applicable to Grantor, and with all applicable notice and procedure requirements, and do not conflict with the laws, ordinances, resolutions and other regulations of Grantor, as presently in effect or as the same were in effect at the time the particular action was taken . 5 . Grantor acknowledges ( a ) Broadstripe shall remain responsible for obligations of the franchisee under the Franchise that relate to the period prior to the date of the closing of • 2 the Transaction and ( b ) Assignee shall be responsible only for obligations of the franchisee under the Franchise that accrue from and after the date of the closing of the Transaction . Broadstripe has agreed to fulfill its Cable Fee obligations to the Grantor for fourth quarter 2011, and the Grantor' s consent to the assignment of the Franchise to Assignee set forth in this Consent and Approval is voidable in the event that obligation is not fulfilled . 6 . This Consent and Approval shall take effect immediately on its adoption and shall remain in effect through the remainder of the term of the Franchise . ADOPTED this 22nd day of November , 2011 . `ofti + + + + + + i , %os •1 . .\`,.\'S•( • "VA . , . o GoU N D + °.( - WHATCOM COUNTY COUNCIL ATT1 . - WHATCOM COUNTY, WASHINGTON . . , � ` - of • ataa.,4 ilei mti / I avid.w t Dana : tSawn- D°a° a °Caur$ Clerk S . Crawford , Council Chair '11/11 1 + + o`‘\'b APPROVED AS TO FORM : pepproved ( ) Denied a/tact 4 • L Civil Deputy Prosecutor Pete Kr men , County E cutive Date : »frq/ , 3