HomeMy WebLinkAboutord2007-006WHATCOM COUNTY COUNCIL AGENDA BILL NO.
2006 -439
CLEARANCES
Initial
Date
Date Received in Council Office
Agenda Date
Assigned to:
Originator:
Daniel L. Gibson.
d1g
11/01/06
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November 21, 2006
Introduction
Division Head
January 30 2007
Public Hearin
Dept. Heart:
Jeffrey M. Monsen
Jm
11/02/06
Prosecutor-
Daniel
Daniel L. Gibson
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11/01/06
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Purchasing /Budget:
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Executive:
TITLE OFDOCU ENT.• Associates Franchise Ordinance
ATTACHMENTS.
Memorandum
Ordinance
SEPA review required? { ) Yes ( ) NO
Should Clerk schedule a hearing ? (X) Yes ( ) NO
SEPA review completed? { ) Yes { ) NO
Requested Date: January 30, 2007
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 requiredpublic notice. Be specific and cite RC W or WCC as appropriate Be clear in
explaining the intent of the action.)
Pursuant to RCW 36.55.040 and Whatcom County Code 12.24.051, notice is hereby given of public hearing before the County
Council on a proposed ordinance that, if adopted, would grant a franchise for a period of twenty-five (25) years to Telecomm
Associates to use County right -of -way in certain locations generally within its service area for purposes of placing cable for
telecommunications and associated facilities, those locations more fully described within the proposed ordinance on file with
the County Council. The public hearing will be held during the County Council meeting scheduled for 7:00 p.m., January 30,
2007, in Council Chambers of the Whatcom County Courthouse, 311 Grand Avenue, Bellingham, Washington. Pursuant to
RCW 36.55.050, the hearing may be adjourned from time to time by order of the County Council until action is taken by the
Council upon the proposed ordinance.
COMMITTEE ACTION.
COUNCIL ACTION:
11/21/2006: Introduced
1/30/2007: Council Adopted 5 -1, Brenner
opposed and Nelson absent
Ord. 2007 -006
�•�7•01
Cl-
Related County Contract #:
Related File Numbers:
Ordinance or Resolution Number:
Ord. 2007 -006
Please Note: Once adopted and signed, ordinances and resolutions are avallable for viewing and printing on the County's website
at: f vivty .co.wlialconi.►va.iislcoujrcil.
2070204093
III II I I I I I I I� I I I
Page: I FRAN712007f 3 $49 P O
Whatcom County, WA
Request of: WHATCOM COUNTY COUNCIL
RETURN DOCUMENT TO:
MARINA ENGELS
WHATCOM COUNTY
COUNCIL OFFICE
DOCUMENT TITLE(S): Fi2AAjv/y- /,'j6
ORDINANCE NO. 2007 -006 IN THE MATTER OF GRANTING A NON-
EXCLUSIVE FRANCHISE TO TELECOMM ASSOCIATES FOR A PERIOD OF 25
YEARS PURSUANT TO STATE LAW AND SECTION 9.30 OF THE WHATCOM
COUNTY HOME RULE CHARTER, TO OPERATE AND MAINTAIN A CABLE
COMMUNICATIONS SYSTEM WITHIN THE UNINCORPORATED AREAS OF
WHATCOM COUNTY
REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED:
Ordinance No. 2007 -006
Additional reference numbers found on page of document.
GRANTOR(S):
Whatcom County
Additional grantors found on page of document.
GRANTEE(S):
Telecomm Associates
Additional grantees found on page of document.
ABBREVIATED LEGAL DESCRIPTION (Lot, block, plat, or section, township, range)
Sections 4, 5, 8, 10,14, 15, 23, Township 37N, Range 1E — certain roads
Section 32, 33 Township 38N, Range 1E — certain roads
Additional legal description can be found on page 2 of document.
ASSESSOR'S PARCEL NUMBER:
None - roads
SPONSORED BY: Consent
PROPOSED BY: Executive
INTRODUCTION DATE: 11/21/06
ORDINANCE NO. 2007 --006
AN ORDINANCE IN THE MATTER OF GRANTING A NON - EXCLUSIVE FRANCHISE
TO TELECOMM ASSOCIATES FOR A PERIOD OF 25 YEARS PURSUANT TO STATE
LAW AND SECTION 9.30 OF THE WHATCOM COUNTY HOME RULE CHARTER, TO
OPERATE AND MAINTAIN A CABLE COMMUNICATION SYSTEM WITHIN THE
UNINCORPORATED AREAS OF WHATCOM COUNTY
WHEREAS, the Home Rule Charter for Whatcom County, Section 9.30, authorizes
the County Council to grant non - exclusive franchises for a fixed term not to exceed twenty -
five years (25) for the use of any street, road, or public place; and
WHEREAS, Chapter 36.55 Revised Code of Washington (RCW 36.55) provides that
the County Council may grant franchises to persons or private or municipal corporations to
use the right -of -way of County roads in their respective counties for the construction and
maintenance of water works, gas pipes, telephones, telegraph and electrical light lines,
sewers and other such facilities, including cable television wires and other cable television
facilities; and
WHEREAS, Telecomm Associates has applied for a 25 -year non - exclusive franchise
to operate and maintain cable for telecommunications uses along certain roads in Whatcom
County, Washington, and notice of this hearing having been duly published on the 13th
and 20th days of January, 2007, in the Bellingham Herald, the official newspaper for
Whatcom County, and as it appears to the County Council that notice of said hearing has
been given as required by law and that it is in the public interest to grant the franchise for a
period of 25 years; and
WHEREAS, in consideration of the granting of the non - exclusive franchise,
Whatcom County shall receive a sum equivalent to no less than four percent (4 %) and no
more than five percent (5 %) of all gross subscriber revenues from the operation and
installation of cable facilities and services, and has agreed to the addition of certain
administrative provisions to the franchise as provided herein;
Page 1
NOW, THEREFORE, BE IT ORDAINED by the Council of Whatcom County,
Washington as follows:
Section 1. Franchise Granted.
(a) A non - exclusive franchise for Telecomm Associates, located in the County of
Whatcom, its successors and assignees, referred to herein as the grantee, is hereby granted
for a period of 25 years commencing on the date this ordinance shall become effective,
conferring the non - exclusive rights and privileges to construct, erect, operate and maintain
a cable system in, upon, along, across, above, over and under public County roads,
highways, alleys and other public ways and public properties of Whatcom County now
laid out or dedicated, and including all extensions thereof and additions thereto, the poles,
wires, cables, underground conduit, manholes, and other cable conductors and fixtures
necessary for the maintenance and operation of a cable communication system for the
distribution of cable service, including, but not limited to the carriage of television and
radio signals and the cable casting of programming.
(b) The rights and privileges granted herein shall apply to all roads and public ways
listed as follows, and upon the following express terms and conditions, to wit:
Section 4, Township 37N, Range 1E Section 15, Township 37N, Range 1E
Blizzard Road Nugent Road Nugent Road Sunrise Cove Road
Centerview Road Tuttle Road Seacrest Road 'Walnut Street
Hilltop Road
Section 5, Township 37N, Range 1E
S. West Shore Drive
Section 8, Township 37N, Rang
Legoe Bay Road
Section 9, Township 37N, Range 1E
Antoinettes Lane Joans Lane
Constitution St. Legoe Bay Road
Hilltop Road Nugent Road
Sunrise Street
Section 23, Township 37N, Range 1E
Baker Avenue Island Drive
Beach Avenue
Cedar Avenue
Carol Avenue
Cove Avenue
Dogwood Terrace
Hales Passage Dr.
Jamison Street
Mt. Vista Street
Rosewood Terrace
Scenic Avenue
Scenic Drive
Section 32, Township 38N, Range 1E
Island View Lane
Section 10, Township 37N, Range 1E Nugent Road
Bayview Avenue Milton Avenue N. West Shore Drive
Kildonan Avenue Seacrest Drive Taft Road
Maple Street Wildwood Terrace Section 33, Township 38N, Range 1E
McLean Avenue Lane Spit
Page 2
Section 10, Township 37N, Range 1E
Private Road (Constitution Street)
Section 14, Township 37N, Range 1E
Seacrest Road
Section 33, Township 38N, Range 1E
Nugent Road
Section 2. Acceptance of Franchise
(a) No franchise hereunder shall become effective for any purpose unless and until
written acceptance therefor shall have been filed with the Whatcom County Council and
the County's Director of Public Works. Such written acceptance shall be in form and
substance as shall be prescribed and approved by the County Prosecuting Attorney and
shall operate as an acceptance of each and every term and condition and limitation
contained in this ordinance, and in such franchise;
(b) Such written acceptance shall be filed by Grantee not later than the thirtieth day
following the effective date of this ordinance granting the franchise; and in default of the
filing of such written acceptance as herein required, Grantee shall be deemed to have
rejected the same.
Section 3. Entering Ri is -of -Way.
(a) The Grantee, it successors, and its assignees shall have the right and authority to
enter upon the above - mentioned County roads, rights -of -way, and other County property
as designated hereinbefore, for the purposes of constructing or otherwise installing its
transmission lines and all necessary facilities connected therewith, and for repairing all
such lines and facilities, and for operating and maintaining said lines and facilities.
(b) At the expiration of the term for which the Franchise is granted, providing no
renewal is granted, or upon its forfeiture or revocation, as provided for herein, the County
shall have the right to require Grantee to remove, at Grantee's expense, all or any part of
the cable communications system from all streets and public ways within the Franchise
area. If Grantee fails to do so, the County may perform the work, or have others perform
the work for it, and collect the cost thereof from Grantee. The actual cost thereof, including
direct and indirect administrative costs, shall be a lien upon all plant and property of the
Grantee effective upon filing of the lien with the Whatcom County Auditor.
Section 4. Construction Standards.
All construction and installation work along, under, or over County roads or rights -
of -way or other County property outside the corporate limits of any incorporated town
shall be subject to the approval and pass the inspection of the Director of Public Works and
shall conform to all applicable County, State, and Federal minimum standards, codes or
Page 3
regulations, and the County expressly reserves the right to prescribe how and where mains,
poles, lines, and wires shall be installed and may from time to time upon reasonable notice,
require the removal and replacement thereof in the public interest.
Section 5. Construction Application.
(a) Prior to commencement of construction of said transmission lines or facilities,
Grantee shall first file with the Director of Public Works its application for permit to do
such work, together with plans and specifications in duplicate showing the position and
location of all such lines and facilities sought to be constructed, laid, installed or erected at
that time, showing their relative position to existing County roads, rights -of -way, or other
County property upon plans drawn to scale, hereinafter collectively referred to as the "map
of definite location."
(b) The lines and appurtenant facilities shall be laid in substantial compliance with
said map of definite location, except in instances in which deviation may be allowed
thereafter in writing by the Director of Public Works pursuant to application by Grantee.
The plans and specifications shall specify the class and type of material and equipment to
be used, manner of excavation, construction, installation, backfill, erection of temporary
structures, erection of permanent structures, traffic control, traffic turnouts and road
obstruction, etc. No such construction shall be commenced without the Grantee first
securing a written permit from the Director of Public Works, including approval endorsed
on one set of plans and specifications returned to the Grantee. All such work shall be
subject to the approval of and pass the inspection of the Director of Public Works. Any and
all approvals required of the Director of Public Works, pursuant to this section, shall not be
unreasonably withheld. The Grantee shall, in compliance with Whatcom County Code
Chapter 12.16 (an ordinance providing for the issuance of revocable encroachment permits
for work on County roads and in County rights -of -way), pay all permit fees as required,
and also comply with Whatcom County Code Chapter 12.28, (adopting standard
specifications for utility construction within County roads and rights -of -way). The Grantee
shall pay all actual and necessary costs of and expenses incurred in the examination,
inspection and approval of such work on account of granting the said permits.
Section 6. Construction on Road ays and Other County Property.
(a) In any work that requires breaking of soil of the County roads, rights -of -way or
other County property subject to this Franchise for the purpose of laying, relaying,
connecting, disconnecting and repairing the said transmission lines and facilities, and
making connections between the same to structures and buildings of consumers or making
connections to other facilities of the Grantee now in existence or hereafter constructed, the
Grantee shall be governed by and conform to the general rules adopted by the officers
Page 4
charged with the supervision and care of such County roads, rights -of -way, and other
County property; and the Grantee at its own expense and with all convenient speed shall
complete the work for which the soil has been broken and forthwith replace the work and
make good the County road, rights -of -way or other County property and leave the same in
as good condition as before the work was commenced.
(b) Applications for permits referred to in Section 5 above shall be accompanied by
specifications for the restoration of the County road, rights -of -way or other County
property and to the same or better condition as it was prior to such breaking, and such
specifications must be approved by the Director of Public Works before such breaking of
the soil is commenced. Provided, that the Director of Public Works shall require
compliance with Whatcom County Code Chapter 12.16 to insure that such County roads,
rights -of -way or other County property shall be restored to the same or better condition as
it was prior to the breaking of the soil. The Grantee, in addition to any other such
requirements contained herein, shall be subject to the conditions and penalties as provided
in Whatcom County Code Chapter 12.16, as now existing or as hereafter revised.
(c) The Director of Public Works may at any time, order, or have done, any and all
work that is considered necessary to restore to a safe condition any such County road,
rights -of -way or other County property left by the Grantee or its agents in a condition
dangerous to life or property, and the Grantee upon demand shall pay to the County all
actual costs of such work.
Section 7. Construction — Other Lines and Facilities.
(a) All construction or installation of such lines and facilities, service repair or
relocation of same, performed over, above, along or under the County roads, rights -of -way
or other County property subject to this Franchise shall be done in such a manner as not to
interfere with the construction and maintenance of other utilities' lines, public or private,
drains, drainage ditches and structures, irrigation ditches and structures located therein,
nor with the grading or improvement of such County roads, rights -of -way or other County
property.
(b) The owners of all utilities, public or private, installed prior in time to the lines
and facilities of the Grantee shall have preference as to the positioning and location of such
utilities so installed with respect to the Grantee. Such preference shall continue in the event
of the necessity of relocating or changing the grade of any such County road or right -of-
way.
Section 8. Construction — Public Safes and Convenience.
All work done under this Franchise shall be done in a thorough and workmanlike
manner. In the laying of transmission lines and the construction of other facilities and the
Page 5
opening of trenches, the tunneling under County roads, rights -of -way or other County
property, the Grantee shall leave such trenches, ditches and tunnels in such a way as to
interfere as little as possible with public travel and shall take all due and necessary
precautions to guard the same, so that damage or injury shall not occur or arise by reason
of such work; and where any of such trenches, ditches, or tunnels are left open at night, the
Grantee shall place warning lights and barricades at such a position as to give adequate
warning of such work. The Grantee shall be liable for any injury to person or persons or
damage to property sustained through its carelessness or neglect, or through any failure or
neglect to properly guard or give warning of any trenches, ditches or tunnels dug or
maintained by the Grantee.
Section 9. County Rights Reserved.
The County of Whatcom in granting this Franchise, does not waive any rights which
it has now or may hereafter acquire with respect to County roads, rights -of -way or other
County property and this Franchise shall not be construed to deprive the County of any
powers, rights or privileges which it now has or may hereafter acquire to regulate the use
of and to control the County roads, rights -of -way or other County property covered by this
Franchise.
Section 10. Relocation of Lines and Facilities.
(a) If at any time, the County of Whatcom shall improve or change any County road,
right -of -way or other County property subject to this Franchise, by grading or regarding,
planking or paving the same, changing the grade, altering, changing, repairing or
relocating the same or by constructing drainage facilities, or in the event that such County
road, right -of -way or other County property subject to this Franchise shall become a
Primary State Highway as provided by law, the Grantee upon written notice from the
Director of Public Works or the Director of Highways, shall at its sole expense, within thirty
(30) working days change the location or readjust the elevation of its transmission lines and
other facilities so that the same shall not interfere with such County work and so that such
lines and facilities shall conform to such new grades or routes as may be established. The
County of Whatcom shall in no wise be held liable for any damages to said Grantee that
may occur by reason of any of the County's improvements, changes or works above
enumerated.
(b) All work to be performed by the Grantee under this section shall be under the
direction and approval, and shall pass the inspection of the Director of Public Works. The
Grantee shall pay all actual and necessary costs and expenses incurred in the examination,
inspection and approval of such work.
Page 6
Section 11. County Road Work Permitted.
The laying, construction, operation and maintenance of the Grantee's transmission
lines and facilities authorized by this Franchise shall not preclude the County of Whatcom,
its agents or its contractors from blasting, grading, excavating or doing other necessary
road work contiguous to the said lines and facilities of the Grantee provided that the
Grantee shall be given forty -eight (48) hours notice of said blasting or other work in order
that the Grantee may protect its lines and facilities.
Section 12. Monuments and Survey Markers.
(a) Before any work is performed under this Franchise which may affect any existing
monuments or markers of any nature relating to subdivisions, plats, roads and all other
surveys, the Grantee shall reference all such monuments and markers. The reference points
shall be so located that they will not be disturbed during the Grantee's operations under
this Franchise. The Director of Public Works shall approve the method of referencing these
monuments or other points to be referenced. The Director of Public Works shall also
approve the replacement of all such monuments or other points to be referenced. All such
monuments or markers disturbed during construction shall be replaced as expeditiously as
conditions permit, and as directed by the Director of Public Works. The Grantee shall bear
the cost of monuments or other markers lost, destroyed or disturbed, and the expense of
replacement with approved monuments.
(b) A complete set of reference notes for monuments and other ties shall be filed
with the Whatcom County Director of Public Works.
Section 13. Vacations.
If at any time the County of Whatcom shall vacate any County road, right -of -way or
other County property that is subject to the rights granted by this Franchise and said
vacation shall be for the purpose of acquiring the fee or other property interest in said road,
rights -of -way or other County property for the use of Whatcom County, in either its
proprietary or governmental capacity, then the Council of Whatcom County may at its
option and by giving sixty (60) days written notice to the Grantee, terminate this Franchise
with reference to such County road, rights -of -way or other County property so vacated,
and the County of Whatcom shall not be liable for any damages or loss to the Grantee by
reason of such termination.
If at any time the County of Whatcom shall vacate any County road, right -of -way or
other County property that is subject to the rights granted by this Franchise and said
vacation shall result in the reconveyance of the County's right -of -way interest to the
adjoining property owner(s), then the Council of Whatcom County pursuant to RCW
36.87.140 may retain an easement in such vacated property for purposes of allowing
Page 7
Grantee to continue the activities allowed under this Franchise.
Section 14. Indemnification.
(a) The Grantee by acceptance of the privileges granted hereunder, does hereby
agree and covenant to indemnify, defend, and save harmless Whatcom County and those
persons who were, are now, or shall be duly elected or appointed officials or members or
employees thereof, against and from any loss, damage, costs, charges, expenses, liability,
claims, demands, or judgments of whatsoever kind or nature, whether to persons or
property, arising wholly or partially out of any act, action, neglect, omissions or default on
the part of the Grantee, its sub - contractors and/or employees which may occur by reason of
construction, operation and maintenance of the Grantee's said transmission lines and
facilities. In case that suit or action is brought against the County of Whatcom for damages
arising out of or by reason of the above - mentioned causes, the Grantee shall upon notice to
it of the filing of a claim or the commencement of said action, appear and defend the same
at its sole cost and expense, and in case judgment shall be rendered against the County of
Whatcom in suit or action, the Grantee shall fully satisfy said judgment within ninety (90)
days after said suit or action shall have finally been determined, if determined adversely to
Whatcom County. Upon the Grantee's failure to satisfy said judgment within a ninety (90)
day period, this Franchise shall at once cease and terminate and the County of Whatcom
shall have a lien upon the transmission lines and all other facilities used in its construction,
operation and maintenance of the Grantee's transmission system which may be enforced
against the property for the full amount of any such judgment so taken against Whatcom
County.
(b) Acceptance by the County of any work performed by the Grantee at the time of
completion shall not be grounds for avoidance of this covenant.
Section 15. Non - Exclusive Franchise.
This Franchise shall not be deemed to be an exclusive franchise. It shall in no
manner prohibit the County of Whatcom from granting other franchises of a like nature or
franchises for other public or private utilities, under, along, across, over and upon any of
the County roads, rights -of -way, or other County property subject to franchise, and shall in
no wise prevent or prohibit the County of Whatcom from constructing, altering,
maintaining, using or vacating any of said roads, rights -of -way, drainage structures or
facilities, irrigation structures or facilities, or any other County property or affect its
jurisdiction over them with full power to make all necessary changes, relocations, repairs
and maintenance, as the County may deem fit.
Page 8
Section 16. Successors and Assignees.
All of the provisions, conditions, regulations and requirements herein contained
shall be binding upon the successors and assignees of the Grantee, and all privileges, as
well as all obligations and liabilities of the Grantee shall inure to its successors and
assignees equally as if they were specifically mentioned wherever the Grantee is mentioned
herein.
Section 17. Transferabiliity.
Neither this Franchise nor any interest therein shall be sold, transferred or assigned
without the previous consent in writing of the Council of Whatcom County, such consent
not to be unreasonably withheld.
The requirements of this Section shall not be deemed to prohibit the use of Grantee's
property as collateral for security in financing the construction or acquisition of all or part
of the cable communications system franchised hereunder. However, such financing shall
be subject to the provisions of this Franchise.
Section 18. Incorporation.
Whenever any of the County roads, rights -of -way or other County property as
designated in this Franchise, by reason of the subsequent incorporation of any town or city,
or extension of the limits of any town or city, shall fall within the city or town limits, this
Franchise shall continue in force and effect as to all County roads, rights -of -way or other
County property not so included in city or town limits.
Section 19. Construction/Extension Plan.
Five (5) years from the date of this Franchise, the rights conferred hereby to the
Grantee may, at the election of the Council of Whatcom County and pursuant to notice, be
terminated with respect to those County roads, rights -of -way and other County property
or portions thereof upon which the Grantee has not laid, constructed and placed in
operation its lines and facilities. The Grantee shall extend its facilities and offer its services
to all areas within the franchise area which are contiguous to existing service areas, but
which are not currently served, provided there are thirty (30) assured subscribers per mile
of aerial distribution cable (or 60 potential subscribers per mile of underground distribution
cable) of new construction required. Such construction and services rendered in new
building areas will be subject to and governed by the provisions of this franchise ordinance.
If Grantee does not so extend its facilities and services within a reasonable time, upon
request made by subscribers, the County's sole remedy shall be to terminate Grantee's
rights as to such area not served as set forth in the first sentence of this section.
Page 9
Section 20. Installation Specifications.
In preparing plans and specifications for the installation of transmission lines along
or across County roads and rights -of -way, the Grantee shall use as a guide the standards
and specifications contained in the National Electrical Safety Code (National Bureau of
Standards); National Electrical Code (National Bureau of Fire Underwriters [American
Insurance Association] and National Fire Protection Association); Bell System Code of Pole
Line Construction; The Standards of Good Engineering Practices for Measurements on
Cable Television Systems (National Cable and Telecommunications Association); applicable
FCC or other Federal, State or local codes and regulations; and applicable State and
municipal construction standards.
Section 21. Enforcement/Remedies.
(a) If the Grantee shall willfully violate, or fail to comply with any of the provisions
of this Franchise through willful or unreasonable neglect, or fail to heed or comply with
any notice given the Grantee under the provisions of this Franchise, then the said Grantee
shall forfeit all rights conferred hereunder, and this Franchise may be revoked or annulled
by the Council of Whatcom County. In addition to any rights implied or set out elsewhere
in this ordinance, the Council reserves the right to apply, at its sole option, any one or
combination of the following in the event the company violates any provisions of the
Franchise:
(1) levy an assessment of actual damages;
(2) reduce the duration of the franchise on such basis as the arbitrator may
deem reasonable and justified;
(3) require a reduction in the company's rates by such amount or amounts as
may be necessary to remedy the violation;
(4) require the company to make payments or refunds to its customers or
classes of customers in such amount as may be necessary to remedy the violation;
(5) require the company to correct or otherwise remedy the violation prior to
any consideration or implementation of rate increase if the violation relates to rates;
(6) require the company to specifically comply with the terms and conditions
of the franchise ordinance.
(b) In the event of a dispute over a violation of the provisions of this franchise, either
party may submit resolution of the violation to arbitration. The matter shall be determined
by a board of three (3) arbitrators, all of whom shall be citizens and taxpayers of the State of
Washington, and shall be selected as follows: one by the County Council, one by the
Grantee, and the third one by the two so appointed. Should the two arbitrators be unable
to name a third, the parties shall request that a third arbitrator be named by a judge of the
Superior Court for Whatcom County, pursuant to the procedures that may be established
Page 10
by that court. Said board shall make its decision in writing and file its decision with the
Parties within sixty (60) days from the date of the appointment of the final arbitrator. The
decision of the board shall be by a majority vote and signed by at least two arbitrators. The
written decision shall be final and binding upon the parties.
Section 22. Eminent Domain/Reservation of Home Rule Charter Rights.
This Franchise shall be subject to the power of eminent domain and the right of the
Council or the people acting for themselves through the initiative or referendum to repeal,
amend or modify the franchise in the interest of the public. In any proceeding under
eminent domain the Franchise itself shall have no value. This section sets forth the
requirements of Section 9.30 of the Whatcom County Home Rule Charter and shall remain
in effect so long as the charter provision is valid.
Section 23. Compliance with Laws and Regulations.
This Franchise is subject to, and the Grantee shall comply with all applicable Federal,
State, County or municipal laws, regulations and policies affecting performance under this
Franchise.
Section 24. Franchise Payments to County.
(a) In consideration of the granting of this Franchise and to compensate Whatcom
County for the Grantee's occupancy of County roads, rights -of -way and other County
property, as well as the expenses incurred in processing this grant and to be incurred in
connection with periodic inspections and control as provided herein, the Grantee shall pay
to Whatcom County a sum equivalent to an annual rate of four percent (4 %), paid
quarterly, of the gross subscriber revenues received from the installation and operation of
its facilities and /or services to patrons served from lines, wires, cables or other devices
installed along, under or over public rights -of -way or across County property as herein
granted. Said sum shall be due and payable in United States dollars. This amount may be
amended to not more than 5% of gross subscriber revenues at the discretion of the County
if other cable service providers are paying franchise fees at a rate greater than 4 %. If the
federal law is amended to allow franchise fees of more than 5 %, this provision may be
renegotiated between County and Grantee at the request of the County. The term "gross
subscriber revenues" is meant to include only those revenues derived from the supplying
of basic subscriber service; that is, the installation fees, disconnect and reconnect fees, and
fees for regular cable benefits including the transmission of broadcast signals and access
and origination channels if any. It does not include revenues derived from per - program or
per - channel charges, leased channel revenues, advertising revenues, or any other income
derived from the system nor shall such term include any taxes on services furnished by the
Page 11
Grantee which are imposed directly on any subscriber or user by the State, County or any
other governmental unit and collected by the Grantee on behalf of such governmental unit.
(b) The Grantee's quarterly payments shall be remitted no later than the 301h day
following the end of the quarterly period covered by the payment (April 30 for the first
quarter, July 30 for the second quarter, October 30 for the third quarter, and January 30 for
the final quarter of the preceding year). The Grantee shall be subject to a penalty of ten
percent (10 %) per annum of the sum delinquent, during the term delinquent; and further
provided that this franchise and all rights and privileges granted hereunder shall terminate
and be forfeited if Grantee should exceed three months delinquent in the submission of the
payments hereunder required, after receiving written notice from Whatcom County of the
delinquency to the local systems office by certified mail.
Section 25. Franchise Payments to County Not In Lieu of Other Taxes.
Any franchise payments to the County by Grantee shall not be in lieu of any
occupation, income, license, or property tax or similar levy, assessment, fee, or charge
which would otherwise apply to and be payable by Grantee. No privileges or rights
granted hereunder shall exempt Grantee from any future uniform rent, license, tax charge,
or impost which may hereafter be required by the Grantor, for revenue or as
reimbursement for use and occupancy of public ways, and failure to timely remit any sums
properly due thereby, shall be cause for forfeiture of rights hereunder.
Section 26. Inspection and Information.
(a) Grantee shall at all reasonable times, and to the extent necessary to carry out the
provisions of this ordinance, permit any duly - authorized agent or representative of the
County to examine all franchise property of Grantee, together with any appurtenant
property of Grantee situated within or without the County, and to examine and transcribe
all maps and other records kept or maintained by Grantee, or under the control or
direction, or at the request of the Grantee, which treat of the franchise operations, affairs,
transactions, or property of the Grantee.
(b) Any of such maps or such other records which are not situated within the
County and which are not made available in the County within a reasonable time after
written request therefor by the Council or the Prosecuting Attorney, shall be produced for
examination wherever the same shall be situated and Grantee shall pay all travel and other
expenses necessary or reasonably incurred by the County, its agents, and representatives in
making such examination.
(c) Grantee shall prepare and furnish to the Director of Public Works, at such times
and in such form as prescribed by the Director, references and materials with respect to the
operations, affairs, transactions or property of Grantee, as may be reasonably necessary or
Page 12
appropriate to the performance of any of the duties of the County of Whatcom.
Section 27. Services to Consumers/Public.
(a) The Grantee shall:
(1) correct malfunctions promptly, but in no event later than twenty -four (24)
hours after occurrence except for Acts of God and other conditions beyond the control of
the Grantee, in which cases the Grantee shall correct the malfunctions with all deliberate
speed.
(2) promptly answer complaints by users.
(3) give 24 -hour notice to users of planned interruptions of service, insofar as
is possible, and attempt to have such interruptions occur during periods of minimum use of
the system.
(4) maintain an office within Whatcom County, which office shall be open
during all usual business hours, with its telephone listed in directories of the telephone
company serving the County, which office shall be so operated that complaints and
requests for repairs or adjustments may be received at any time, day or night, seven days a
week; and provide notice of such office and the Grantee's complaint procedure to each user
at the time of initial subscription to the system.
(5) maintain a written record, or log, listing date of customer complaints
identifying the user and describing the nature of the complaint, and when and what action
was taken by Grantee in response thereto. Said record shall be kept at Grantee's local
office, for a period of five (5) years, and shall be available for inspection during regular
business hours, without further notice or demand, by the manager.
(6) provide services to consumers as delineated in the rate schedule as
provided herein.
(b) County Complaint Procedures. The County Executive's office shall have the
primary responsibility for the administration of complaints regarding franchises and the
County Executive shall approve procedures to be followed in resolving and processing
such complaints. In the event that the parties cannot resolve the subscriber complaint to
their mutual satisfaction, the subscriber is free to pursue all available remedies.
(c) To promote the health, safety and welfare of the citizens of Whatcom. County,
the County Council may request, and upon request the Company shall provide the
following:
(1) at least one special designated non - commercial local origination channel
available on a first -come, non - discriminatory basis for the purpose of public service
programming and for use by local educational, governmental and emergency authorities.
This condition, if imposed, may be satisfied alternatively with a contribution by Grantee to
another local cable provider to defray its costs incurred in providing this service. This
Page 13
contribution shall be calculated on a per customer basis that reflects parity with costs
incurred by other cable providers for provision of this service.
(2) one service drop (line), without charge, at each public facility designated
by the County that is passed by existing cable, up to a maximum of five (5) drops.
Section 28. Insurance.
(a) Upon acceptance of such franchise, the Grantee shall file with the Whatcom
County Council, and shall thereafter, during the entire term of such franchise, maintain in
full force and effect, a corporate insurance policy or other adequate surety agreement in the
amount of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for property damage
coverage, and THREE HUNDRED THOUSAND DOLLARS ($300,000.00) for public liability
coverage, so as to protect the County against damages or costs as set forth in Section 14
above, and there shall be recoverable, jointly and severally from the principal and surety,
any such damages or costs suffered or incurred by the County, including attorneys' fees
and costs of any action, or proceedings, and including the full amount of any
compensation, indemnification, cost of removal of any property or other costs which may
be incurred up to the full principal amount of such insurance policy; and said condition
shall be a continuing obligation during the entire term of such franchise and thereafter until
Grantee shall have satisfied in full any and all obligations to the County and any user
which arise out of or pertain to said franchise. Neither the provisions of this section, nor
any insurance policy accepted by the County pursuant hereto, nor any damages recovered
by the County thereunder, shall be construed to excuse faithful performance by the
Grantee, or limit the liability of the Grantee under any franchise issued pursuant to this
ordinance.
(b) The Prosecuting Attorney, at the request of the County Council, may review this
dollar amount of said insurance policy and adjust the amount of coverage as deemed
appropriate within each five years of the length of the franchise.
Section 29. Repealers.
All other prior existing franchises granted to Telecomm Associates shall be repealed,
and the terms of the franchise granted hereunder shall become effective at such time as an
acceptance of franchise is filed by the Grantee with the County in accordance with Section 2
herein.
effect.
Section 30. Severability.
If any portion of the ordinance is deemed invalid, the remainder will remain in
Page 14
Section 31. Titles.
The section titles used herein are for reference only and should not be used for the
purpose of interpreting this ordinance.
Section 32. Force Majeure Clause.
The Grantee shall not be deemed in default of any provisions of this franchise or
subjected to any penalties hereunder where performance or compliance is prevented by
Acts of God, civil emergencies, national disasters or acts of third parties that are neither
agents, employees, nor affiliates of the Grantee which are beyond the Grantee's reasonable
abilities to control.
APPROVED this 30 day of January , 2007.
�•���1111111 � U11 fI�.I./
(� Qi�� WHATCOM COUNTY COUNCIL
A'F5j�F�HArC ,•�,�� WHATCOM COUNTY, WASHINGTON
.� 0000
• O - COUPIi'1f •
• ,�7
of the Council
-► * -4'
11HI III 1110
APPROVED AS TO FORM:
Daniel L. Gibson
Whatcom County Civil Deputy Prosecutor
Carl Weimer, Council Chair
Approved O Denied
L
Pete Kreme�C unty Executive
Dat� .. d� —d —0
Page 15
Exhibit B
ACCEPTANCE OF FRANCHISE
Telecomm Associates
The Whatcom County Council at its meeting of January 30, 2007, adopted Ordinance 2007-
006 approving the petition for franchise filed by Telecomm Associates. The petition and all
related documents are available for review in the Council Office as file number 2006 -439.
Telecomm Associates hereby accepts, subject to all the conditions contained in Ordinance
2007 -006, that certain non - exclusive franchise to lay, construct, erect, install, operate,
maintain, repair and /or replace telephone, telegraph and other telecommunication lines,
equipment, facilities and apparatus, and all necessary appurtenances thereto, along, in,
over, under and across certain public roads, streets, highway and rights -of -way, now
existing or hereafter established, as follows:
The rights and privileges granted herein shall apply to all roads and
public ways listed as follows, and upon the following express terms and
conditions, to wit - Section 4, Township 37N, Range 1E Section 15, Township
37N, Range 1E: Blizzard Road, Nugent Road, Centerview Road, Tuttle Road,
Hilltop Road; Section 5, Township 37N, Range 1E: S. West Shore Drive;
Section 8, Township 37N, Range 1E: Legoe Bay Road; Section 9, Township
37N, Range 1E: Antoinettes Lane, Joans Lane, Constitution St., Legoe Bay
Road, Hilltop Road, Nugent Road; Section 10, Township 37N, Range 1E:
Bayview Avenue, Milton Avenue, Kildonan Avenue, Seacrest Drive, Maple
Street, Wildwood Terrace, McLean Avenue; Section 10, Township 37N, Range
1E: Private Road (Constitution Street); Section 14, Township 37N, Range 1E:
Seacrest Road; Section 15, Township 37N, Range 1E: Nugent Road, Sunrise
Cove Road, Seacrest Road, Walnut Street, Sunrise Street; Section 23,
Township 37N, Range 1E: Baker Avenue, Island Drive, Beach Avenue,
Jamison Street, Cedar Avenue, Mt. Vista Street, Carol Avenue, Rosewood
Terrace, Cove Avenue, Scenic Avenue, Dogwood Terrace, Scenic Drive, Hales
Passage Dr.; Section 32, Township 38N, Range 1E: Island View Lane, Nugent
Road, N. West Shore Drive, Taft Road; Section 33, Township 38N, Range 1E:
Lane Spit; Section 33, Township 38N, Range 1E: Nugent Road.
Telecomm Associates Acceptance of Franchise
Granting of this franchise becomes official upon receipt from the petitioner of this signed
and notarized document, and payment by petitioner of publication costs incurred by the
County Council Office.
This franchise, when granted, shall be in effect for a period of twenty -five (25) years.
••``��r r rr u r � � tii i q�����i
Ct&% of tlra« y raeil •xl:�
Agent for the petitioner, Telecomm Associates:
(2, � L, ; �./, " - - - �,
/State of Washington )
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Carl Weimer
Council Chair
Date: / _� . za o %
ss.
County of Whatcom )
Signed and sworn to before me on this /36day of 2007, by
J�1te- JxLC(91k
(Agent for Telecomm)
���ti1u 11 ulrrrpr�
Ci
• "r,0
Notary Public in and for the State of Washington,
residing at
TA -1�6 IJ $00rb off:
p VYABH�.� My notary commission expires r1
F \ ��
r1111111`
Effective Date of this franchise -9 • A 7.0 7
Telecomm Associates Acceptance of Franchise