HomeMy WebLinkAboutord1999-046WHATCOM COUNTY COUNCIL AGENDA BILL
NO._ 1999 - 319
CLEARANCES Date Date Received in Council Office Agenda Date Assigned To
Odg. Dept.: Public Works
8/10/99
8/10/99
Introduction
Division Head:
Dept. Head:
Prosecutor:
Budget:
Executive:
SUBJECT. -
Ordinance granting franchise to Black Rock Cable, Inc. for open video system
ATTACHMENTS
Franchise Ordinance
SUMMARY STATEMENT:
Related County Contract #:. Should the Clerk schedule a hearing? (Y/N Y Requested Date: 9/21/99
This ordinance allows Black Rock Cable, Inc. to operate and maintain an open video system in Whatcom County, with various
terms and conditions.
RECOMMENDED MOTION (for final action):
COUNCIL ACTION TAKEN:
1999 - 319 8/10/99: Introduced
9/21/99: Adopted 4 -1, Dawson, Nelson absent, Hoag
opposed Ord. #99 -046
Related File Numbers: Ordinance or Resolution Number (this item only):
Ord.+9q -OMo
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
SPONSORED BY:
PROPOSED BY: PUBLIC WORKS
INTRODUCTION DATE: 8/10/99
ORDINANCE NO. 99 -046
AN ORDINANCE GRANTING A FRANCHISE TO BLACK ROCK CABLE, INC. TO
OPERATE AND MAINTAIN AN OPEN VIDEO SYSTEM IN WHATCOM COUNTY AND
SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE.
WHEREAS, Black Rock Cable, Inc., DBA Black Rock Cable ('Black Rock ") desires to operate
an open video telecommunications system in the rights -of -way of Whatcom County; and
WHEREAS, negotiations between Black Rock and the County have been completed and the
franchise process followed in accordance with the guidelines established by the County Code and
applicable Federal law; and
WHEREAS, R.C.W. Chapter 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 and including cable television
wires and other cable television facilities; and
WHEREAS, Black Rock Cable, Inc., hereinafter referred to as "Black Rock ", has applied for a
25 year non - exclusive franchise to operate and maintain cable along all roads in unincorporated
Whatcom County, Washington, and notice of this hearing having been duly published on the
21 and 28 days of August, 1999, and on the 4 and 11 days of September, 1999, in the
official newspaper for Whatcom County, and it appearing to the County Council that notice of
said hearing having been given as required by law and that it is in the public interest to grant the
franchise for a period of 15 years; and
NOW, THEREFORE, THE WHATCOM COUNTY COUNCIL DOES ORDAIN
THAT a franchise is hereby granted to Black Rock Cable, Inc. to operate and maintain an open
video system in Whatcom County upon the following terms and conditions:
Section 1. DEFINITIONS. For the purposes of this Ordinance 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
Black Rock Cable
FRANCHISE ORDINANCE
Page 1
I "will" are mandatory and the word "may" is permissive. Where a term in the Franchise is not
2 defined in this section and there is a definition for the term in the Cable Communications Policy
3 Act of 1984 or the Cable Television Consumer Protection and Competition Act of 1992 or the
4 Telecommunications Act of 1996 (hereinafter collectively referred to as the Cable Act), the
5 Cable Act definition shall apply. Other terms in the Franchise, which are not defined in this
6 section, shall be given their common and ordinary meaning.
7
8 1.1 "Access Channel" or "Public Educational or Government Access (PEG) Channel" means any
9 channel or portion of a channel utilized for programming, whether by Black Rock or in
10 cooperation with, by or through the County, where any resident of the County or any non-
11 commercial organization whose members reside in the County may be a programmer, either
12 without charge or in a non -profit manner, on a non - discriminatory basis. The term
13 "programming" as used in this section shall include video, voice, and data transmission.
14
15
16 1.2 "Basic Service" or "Basic Cable Service" means any tier of service regularly provided to all
17 subscribers. It includes, but is not specifically limited to, the retransmission of local broadcast
18 television signals and the cablecasting of public, educational, or governmental access channels.
19 Nothing in this definition shall be deemed to limit the rights of Black Rock or the County with
20 respect to the regulation of rates and charges as permitted by applicable law.
21
22 1.3 "Open Video System ", or "System," shall have the meaning specified for "Open Video
23 System" in the Cable Act. Unless otherwise specified it shall in this document refer to the open
24 video system constructed and operated in Whatcom County under this Franchise.
25
26 1.4 "County" shall mean the County of Whatcom of the State of Washington and all the territory
27 within its present and future boundaries outside of the boundaries of incorporated cities and
28 including any area over which the County exercises jurisdiction.
29
30 1.5 "Gross Revenues" means any and all gross revenues an Open Video System Operator or its
31 affiliates derives directly or indirectly from operation of the Open Video System, including
32 revenue from sales, rental, or installation of equipment, from advertising revenues, from
33 subscribers, and from all carriage revenues received from unaffiliated video programming
34 providers. Gross revenues shall not include any taxes on services which taxes are imposed
35 directly on a subscriber or user by a city, county, state or other governmental unit and collected
36 by a Person subject to this chapter for such taxing entity. Gross revenue shall not include
37 amounts which cannot be collected and are identified as bad debt: provided, that amounts
38 previously identified as.bad debt which are eventually collected shall be reported for the period in
39 which that occurs.
40
41 1.6 "Pay Service" or "Premium Service" means programming (such as non - advertiser- supported
42 movie channels or pay - per -view programs) offered individually to subscribers on a per - channel,
43 per- program or per -event basis.
44
Black Rock Cable
FRANCHISE ORDINANCE
Page 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
1.7 "Person" means any individual, corporation, partnership, association, joint venture or
organization of any kind and the lawful trustee, successor, assignee, transferee or personal
representative thereof.
1.8 "Public Agency Network" (PAN) is a cable communications network designed principally for
the provision of non - entertainment two -way services to schools, public agencies or other non-
profit agencies for use in connection with the on -going operations of such institutions.
1.9 "Road" shall mean 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 unincorporated areas of Whatcom County.
1.10 "Subscriber" means any person who legally receives any one or more of the services
provided by the Open Video System. .
1.11 'Black Rock" shall mean Black Rock Cable, Inc. DBA Black Rock Cable, its agents and
assignees.
Section 2. FRANCHISE.
2.1 Grant of Franchise. The County hereby grants to Black Rock a nonexclusive franchise
which authorizes Black Rock, subject to the terms of this Ordinance, to construct and operate an
open video system and offer such services as permitted by Federal, State or Local law to be
provided by open video system operators in, along, among, upon, across, above, over, under, or
in any matter connected with the roads located in the County and for that purpose to erect, install,
construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across or
along any road or extensions thereof and additions thereto, such poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other
related property or equipment as may be necessary or appurtenant to the system.
2.2 Franchise Term. The term of the Franchise shall be 15 years, unless terminated sooner in
accordance with this Franchise agreement.
2.3 Franchise Area. The Franchise Area shall be that area within the present or future
corporate limits of the County, outside of the limits of incorporated cities that are situated within
the County.
2.4 Franchise Nonexclusive. The Franchise granted herein shall be nonexclusive. The County
specifically reserves the right to grant, at any time, such additional franchises for other similar
systems as it deems appropriate provided, however, such additional grants shall not operate to
materially modify, revoke, or terminate any rights previously granted to Black Rock. The grant of
any additional franchise shall not of itself be deemed to constitute a modification, revocation, or
termination of rights previously granted to Black Rock.
Black Rock Cable
FRANCHISE ORDINANCE
Page 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
The County agrees to grant additional franchises upon terms and conditions which, in its
sole discretion, it in good faith believes will enhance service and not grant an unfair competitive
advantage to one franchisee over another.
2.5 Franchise Renewal or New Franchise. The County may establish appropriate
requirements for new franchises or franchise renewals consistent with federal, state and local
law.
2.6 Periodic Public Review of Franchise. The County may at approximately three -year
intervals during the term of the Franchise, and at such other times as the County deems
appropriate, conduct a public review of the Franchise. The purpose of the review shall be to
ensure, with the benefit of full opportunity for public comment, that Black Rock is complying
with all franchise requirements and local laws concerning the use of the rights -of -way.
Additionally, the public review can be used as a forum to publicly discuss Black Rock's service
policies and practices although the OVS regulation under the Cable Act may require complaints
be filed with the Federal Communications Commission. Both the County and Black Rock agree
to make a full and good faith effort to participate in the review in a manner that accomplishes this
end. It is not intended that the Franchise be modified as a result of such review, except as a last
resort for achieving the purpose of the review. The County shall establish a procedure for
ensuring orderly review, full discussion of any proposed policy changes between the County and
Black Rock, and full public hearing regarding all matters discussed during the review.
Matters appropriate for discussion at the public reviews in accordance with this section
include without limitation:
(a) Black Rock's overall compliance with the Franchise;
(b) Policies and practices necessary to ensure. continued support for public,
educational and government access at substantially the same level provided for in the
Franchise:
The periodic public reviews described in this section may be but need not be made
coincident with public reviews involved in the consideration of Black Rock requests for
franchise renewal, franchise extension, or approval of transfer of system ownership.
2.7 Transfer of Ownership. 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 Black Rock, either by act of Black Rock or by operation of law, without the prior consent
of the County 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 this Franchise subject to revocation unless and until the County shall have given
written prior consent thereto.
Black Rock Cable
FRANCHISE ORDINANCE
Page 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
Within 30 days of receiving a request to consent to transfer, the County shall notify Black
Rock in writing of information it requires to make its decision whether to consent. When the
County has received such information, it shall have 120 days within which to act. If the County
has not taken action on Black Rock's request for consent to transfer within this 120 -day period, it
shall be deemed to have consented.
This section shall not prohibit the use of Black Rock's property as collateral for security
in financing the construction or acquisition of all or part of the open video system franchised
hereunder. However, such financing shall be subject to the provisions of this Franchise.
2.8 Change in Control. Black Rock shall promptly notify the County through the County
Council of any proposed change in, transfer of, or acquisition by any other party of control of
Black Rock. Except as long as Black Rock retains Sub -S status and otherwise applying to
successors and assigns, if beneficial ownership of 10% or more of the stock of Black Rock or of
any entity now owning or later acquiring such a beneficial interest is acquired by a single entity
or by several entities under common control, if such entity or agent of common control is other
than an organization a) whose primary business is cable system operation, and b) is more than 50
percent owned by Black Rock or a parent of Black Rock, then a change in control will be deemed
to have taken place unless the County, upon request of Black Rock, finds otherwise. Such change
in control shall make this Franchise subject to revocation unless and until the County shall have
given written consent thereto. For purpose of determining whether it will consent to such
change, transfer or acquisition of control, the prospective controlling party to perform the.
obligations of Black Rock under the Franchise Agreement must have been certified by the
Federal Communications Commission to operate as an OVS. The County may condition its
consent upon such terms and conditions as it deems appropriate. Consent to the transfer shall not
be unreasonably withheld.
2.9 Receivership. The County shall have the right to declare a forfeiture or otherwise revoke
this Franchise 120 days after the appointment of-a receiver or trustee to take over and conduct the
business of Black Rock whether in receivership, reorganization, bankruptcy, or other action or
proceeding unless such receivership or trusteeship shall have vacated prior to the expiration of
said 120 days, or unless
(a) within 120 days after his election or appointment, such receiver or trustee shall
have been approved by the County and shall fully have complied with all the provisions of the
Franchise and remedied all defaults thereunder; and,
(b) such receiver or trustee within said 120 days shall have executed an agreement,
duly approved by the County 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 the
Franchise.
2.10 Expiration. Upon expiration of the Franchise, the County shall have the right to: .
Black Rock Cable
FRANCHISE ORDINANCE
Page 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
(a) extend the Franchise, though nothing in this provision shall be construed to
require such extension;
(b) renew the Franchise, in accordance with applicable valid law:
(c) invite additional franchise applications or proposals;
(d) terminate the Franchise without further action; or
(e) take such other action as the County deems appropriate.
2.11 Right to Purchase the System.
(a) In the event the County has declared a forfeiture for cause or otherwise revoked
for cause this Franchise agreement as provided herein, or in the event of expiration of the initial
term of this Franchise agreement without the Franchise being renewed or extended and the
County Council has so ordered by resolution, Black Rock shall continue its operations for a
period of 270 days after either the effective date of the resolution or expiration of the initial term
of the franchise unless the resolution in either case orders termination by Black Rock of its
operations at an earlier time. During this period, Black Rock shall not transfer any portion of its
system to any other person, including parts of the system rented, leased, or leased purchased
without prior written consent of the County. Within 30 days of the order by the County to
continue operations, Black Rock shall tender to the County an inventory of its system used in the
operations under this Franchise agreement. After receiving the inventory, the County may notify
Black Rock that it desires to acquire by purchase all or a portion of the system used by Black
Rock in its operation, exclusive of parts of the system essential to Black Rock's operation of parts
of the system, or of other systems, not acquired. Such notice shall be by resolution or other
appropriate writing of the County and shall state a date upon which Black Rock shall cease its
operations and receive payment as described below.
Under this section, if a franchise renewal is denied, the County shall have an option to
acquire Black Rock's system at fair market value, determined on the basis of the open video
system valued as a going concern but with no value allocated to the Franchise itself. If a
franchise is revoked for cause, the County shall have an option to acquire Black Rock's system at
an equitable price.
(b) In the event the County purchases, acquires, takes over, or holds all or parts of the
system pursuant to Subsection (a) above, the County 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 CATV or telecommunications franchise, on whatever
terms the County deems appropriate.
2.12 Right to Require Removal of Property. At the expiration of the term for which the
Franchise is granted provided no renewal is granted, or upon its forfeiture or revocation as
provided for herein, the County shall have the right to require Black Rock to remove at Black
Black Rock Cable
FRANCHISE ORDINANCE
Page 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
Rock's own expense all or any part of the open video system from all roads and public ways
within the Franchise area. If Black Rock fails to do so, the County may perform the work and
collect the cost thereof from Black Rock. The actual cost thereof, including direct and indirect
administrative costs, shall be a lien upon all plant and property of Black Rock effective upon
filing of the lien with the Whatcom County Auditor.
2.13 Continuity of Service.. In any event, Black Rock shall use its best effort to ensure that all
subscribers receive continuous uninterrupted service, regardless of the circumstances, during the
lifetime of the Franchise. 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, the current
grantee shall cooperate to the best of its ability to operate the system in accordance with the terms
and conditions of this agreement for a temporary period sufficient in length to maintain
continuity of service to all subscribers.
Section 3. OPERATION IN ROADS AND RIGHTS -OF -WAY
3.1 Use of Roads. Black Rock 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
roads within the County such lines, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary
and appurtenant to the operation of a Open Video System within the County.
3.2 Construction or Alteration. Black Rock shall in all cases comply with all lawful County
laws, resolutions and regulations regarding the acquisition of permits and/or such other items as
may be reasonably required in order to construct, alter or maintain the open video system.
3.3 Non - Interference. Black Rock shall exert its best efforts to construct and maintain an
Open Video System so as not to interfere with other use of roads. Black Rock shall, where
possible in the case of above ground lines, make use of existing poles and other facilities
available to Black Rock. When residents receiving underground service or who will be receiving
underground service will be affected by proposed construction or alteration, Black Rock shall
provide at least two weeks' advance notice of the same to such affected residents.
3.4 Consistency with Designated Use. Notwithstanding the above grant to use roads, no road
shall be used by Black Rock if the County, in its sole opinion, determines that such use is
inconsistent with the terms, conditions or provisions by which such road was created or
dedicated, or presently used under County, State or local laws.
3.5 Undergrounding. Black Rock shall place underground all of its transmission lines, which
are located or are to be located above or within the streets of the County in the following cases:
(a) all other existing utilities are required to be placed underground by statute,
resolution, policy or other regulation;
Black Rock Cable
FRANCHISE ORDINANCE
Page 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
(b) Black Rock is unable to get pole clearance;
(c) underground easements are obtained from developers of new residential areas; or
(d) utilities are overhead but residents prefer underground (service provided at cost).
If an ordinance is passed creating a local improvement district which involves placing
underground certain utilities including Black Rock's plant which is then located overhead, Black
Rock shall participate in such underground project and shall remove poles, cables and overhead
wires within such district if requested to do so and place facilities underground. If such
undergrounding of Black Rock facilities is part of such a project, the costs thereof shall be
included in such local improvement district.
Black Rock may use conduit or its functional equivalent to the greatest extent possible for
under- grounding, except for drops from pedestals to subscribers' homes and for cable on other
private property where the owner requests that conduit not be used. Cable and conduit that is
utilized shall meet the highest industry standards for electronic performance and resistance to
interference or damage from environmental factors. Black Rock shall use, in conjunction with
other utility companies or providers, common trenches for underground construction wherever
available.
3.6 Maintenance and Restoration.
(a) Restoration. In case of disturbance of any road, public way, paved area or public
improvement, Black Rock shall, at its own cost and expense and in accordance with the
requirements of local law, restore such road, public way, paved area or public improvement to
substantially the same condition as existed before the work involving such disturbance took
place. All requirements of this section pertaining to public property shall also apply to the
restoration of private easements and other private property. Black Rock shall perform all
restoration work promptly. If Black Rock fails, neglects or refuses to make restorations as
required under this section, then the County may do such work or cause it to be done, and Black
Rock shall pay the cost thereof to the County. If Black Rock causes any damage to private
property in the process of restoring facilities, Black Rock shall repair such damage.
(b) Maintenance. Black Rock shall maintain all above ground improvements that it
places on County right -of -way pursuant to this franchise. In order to avoid interference with the
County's ability to maintain the right-of-way Black Rock shall provide a clear zone of five feet
on all sides of such improvements. If Black Rock fails to comply with this provision, and by its
failure, property is damaged, then Black Rock shall be responsible for all damages caused
thereby.
(c) Disputes. In any dispute over the adequacy of restoration or maintenance relative
to this section, final determination shall be the prerogative of the Whatcom County Department
of Public Works.
Black Rock Cable
FRANCHISE ORDINANCE
Page 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
3.7 Work on Private Property. Black Rock, with the consent of property owners, shall have
the authority to trim trees upon and overhanging roads, alleys, sidewalks, and public ways so as
to prevent the branches of such trees from coming in contact with the wires and cables of Black
Rock, except that at the option of the County, such trimming may be done by it or under its
supervision and direction at the reasonable expense of Black Rock.
3.8 Relocation.
3.8.1 County Property. If during the term of the Franchise the County or any
government entity elects or requires a third party to alter, repair, realign, abandon, improve,
vacate, reroute or change the grade of any road, 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, wire- holding 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, Black Rock shall, upon request, except as otherwise
hereinafter provided, at its sole expense remove or relocate as necessary its poles, wires, cables,
underground conduits, vaults, pedestals, manholes and any other facilities which it has installed.
3.8.2 Utilities and Other Franchisees. If during the term of the Franchise another entity
which holds a franchise or any utility requests Black Rock 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 "make ready" the requesting party's facilities for use by others, or
because Black Rock is using a facility which the requesting party has a right or duty to remove,
Black Rock shall do so. The companies involved may decide among themselves who is to bear
the cost of removal or relocation, provided that the County shall not be liable for such costs.
3.8.3 Notice to remove or relocate. Any utility, other franchisee, or the County
requesting Black Rock to remove or relocate its facilities shall give Black Rock no less than 45
days' advance written notice to Black Rock advising Black Rock 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.
3.8.4 Failure by Black Rock to remove or relocate. If Black Rock fails, neglects. or
refuses to remove or relocate its facilities as directed by the County; or in emergencies or where
public health and safety or property is endangered, the County may do such work or cause it to be
done, and the cost thereof to the County shall be paid by Black Rock. If Black Rock fails,
neglects or refuses to remove or relocate its facilities as directed by another franchisee or utility,
that franchisee or utility may do such work or cause it to be done, and if Black Rock 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 Black Rock.
3.8.5 Procedure for removal of cable. Black Rock shall not remove any underground
cable or conduit which requires trenching or other opening of the roads along the extension of
cable to be removed, except as hereinafter provided. Black Rock may remove any underground
Black Rock Cable
FRANCHISE ORDINANCE
Page 9
I cable from the roads which has been installed in such a manner that it can be removed without
2 trenching or other opening of the roads along the extension of cable to be removed. Subject to
3 applicable law, Black Rock shall remove, at its sole cost and expense, any underground cable or
4 conduit by trenching or opening of the roads along the extension thereof or otherwise which is
5 ordered to be removed by the County based upon a determination, in the sole discretion of the
6 County, that removal is required in order to eliminate or prevent a hazardous condition.
7 Underground cable and conduit in the roads that is not removed shall be deemed abandoned and
8 title thereto shall be vested in the County.
9
10 3.9 Movement of Buildings. Black Rock shall, upon request by any person holding a building
11 moving permit, franchise or other approval issued by the County, temporarily remove, raise or
12 lower its wire to permit the movement of buildings. The expense of such removal, raising or
13 lowering shall be paid by the person requesting same, and Black Rock shall be authorized to
14 require such payment in advance. The County shall require all building movers to provide not
15 less than 15 days' notice to the Black Rock to arrange for such temporary wire changes.
16
17 Section 4. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS.
18
19 4.1 Access Channels.
20
21 Black Rock shall satisfy the same public, educational and governmental access obligations as the
22 local cable operator by providing the same amount of channel capacity for public, educational
23 and governmental access as the local cable operator operating in the franchise area.
24
25 4.2 PEG Capital Contributions and Facilities. Black Rock and any of its cable television
26 providers using Black Rock's OVS may attach a separate line item charge to its residential and
27 common carrier customers for PEG but, regardless, Black Rock shall remit the same amount, on
28 a per customer basis, as TCI charges its customers, on a separate line item, for PEG Capital
29 Contributions and Facilities. These per customer charges and payments shall be of the same
30 duration as TCI's charges and payments although they may not be time coincident. Black Rock
31 shall remit said amounts to the County pursuant to the terms and conditions described in
32 Section 4.3.
33
34 4.2.1 PEG Operating Expenses. Within 30 days, Black Rock shall adjust its percentage
35 of gross revenue fee to match TCI's franchise fee in the event TCI's franchise fee is raised or
36 lowered for the purposes of PEG Operating Expenses. Black Rock shall remit said amounts to
37 the County pursuant to the terms and conditions described in Section 4.3.
38
39 4.3 Payment of PEG. - Black Rock shall pay its PEG contributions quarterly, not later than
40 May 15, August 15, November 15, and February 15 for the preceding three -month period ending,
41 respectively, March 31, June 30, September 30, and December 31. Not later than the date of each
42 payment, Black Rock shall file with the County a written statement signed by an officer of Black
43 Rock which identifies the amounts Black Rock and TCI charge their respective residential and
44 common carrier customers for PEG capital contributions, facilities and operating expenses to
45 ensure a level playing field. No acceptance of payment shall be construed as an accord that the
Black Rock Cable
FRANCHISE ORDINANCE
Page 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as
a release of any claim which the County may have for further or additional sums payable under
the provision of this section.
4.4 PEG Channel Capacity. Black Rock shall allocate the same amount of channel
capacity that would be required of TCI for PEG compliance in accordance with Section 6.1 of
TCI's renewal franchise. If TCI shall increase its PEG capacity, Black Rock shall increase its
capacity to equal TCI's PEG capacity not later than ninety (90) days from the date TCI
implements its increased PEG capacity.
4.5 Public Agency Network. Black Rock grants the County a connectivity option for a
minimum of four (4) single -mode fibers between buildings chosen by the County. If the County
exercises this option, the parties will be bound by the terms and conditions contained herein and
covenant to negotiate in good faith for this option and any other requirements at the time the
County exercises its option.
4.5.1 PAN Terms and Conditions. The following conditions will be the basis for good
faith negotiations between the County and Black Rock:
(a) In the event the County desires its own facility, separate from Black
Rock's facility, the following conditions should apply, (1) The County's facility will be built by
Black Rock primarily on existing wooden utility poles and the County will be responsible for the
actual and reasonable costs of materials, labor and operating expenses; (2) The County will
determine the routing and construction schedule; and, (3) Black Rock will provide maintenance
at fair market rates.
(b) In the event the County desires to share facilities with Black Rock, the
following conditions should apply, (1) the County will be responsible for a pro -rata share of
actual and reasonable costs of materials, labor and operating expenses; (2) Black Rock will
determine the routing and construction schedule; and, (3) Black Rock will provide maintenance
at no cost to the County.
(c) In either event, the County will be - responsible for all electronics
equipment that would be connected to the fiber.
4.6 Upon request, Black Rock shall provide, without installation charge;
(1) One outlet of Basic Service to the Whatcom County
Courthouse, the County facilities at the Northwest Annex, the Whatcom County Health
Department facilities, and any public fire station passed by the Cable System; and
Black Rock Cable
FRANCHISE ORDINANCE
Page 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
(2) One outlet containing all signals, excluding premium channels, to all
educational buildings and facilities of accredited educational institutions, and all government
buildings and facilities that are passed by the Cable System.
Notwithstanding anything to the contrary set forth in this section, Black Rock
shall not be required to provide an outlet to such buildings unless it is technically feasible. Said
outlets and maintenance of said outlets shall be provided free of fees and charges.
Section 5. REGULATORY PROVISIONS.
5.1 Intent. In accordance with the provisions of the Whatcom County Code, the County
shall have the right to administer and regulate activities under the Franchise up to the full extent
permitted by applicable federal, state, and local law.
5.2 Delegation of Authority to Regulate. The County reserves the right to delegate its
regulatory authority wholly or in part to agents of the County including, but not limited to, an
agency which may be formed to regulate several franchises in the Whatcom County region.
5.3 Areas of Administrative Authority. In addition to any other regulatory authority granted to
the County by law or franchise and subject to federal law regarding regulation of open video
systems, the County shall have administrative authority in the following areas:
(a) Administering and enforcing the provisions of this Franchise agreement, including
the adoption of administrative rules and regulations to carry out this responsibility.
(b) Coordinating the operation of public, government and educational channels.
(c) Coordinating Black Rock's technical, programming and operational assistance and
support to public agency users.
(d) Establishing procedures and standards for making use of Black Rock's support of
public institutional operations and services, provision of dedicated channels, assistance to public
facilities, support for community access, and the interconnection of the system with other area
systems.
(e) Planning expansion and growth of public cable services;
(f) Formulating and recommending long -range cable communications policy for the
Franchise area.
(g) Disbursing and utilizing any and all Franchise revenues paid to the County.
Black Rock Cable
FRANCHISE ORDINANCE
Page 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
(h) Administering the regulation of rates, to the extent permitted by law.
Black Rock shall cooperate fully in facilitating the County's discharge of its
administrative authority.
5.4 Franchise Violations, Remedies, and Revocation.
5.4.1 Remedies. The County shall have the right to assert the remedies set out below in
the event Black Rock violates any provision of this Franchise agreement. These remedies are
intended to embody the County's and/or the public's rights under The The Whatcom County Home
Rule Charter to the extent permitted by law.
(a) To the extent the County deems necessary to remedy the default, proceeding
against all or any part of any security provided under the County Code or this Franchise,
including without limitation, any bonds, security funds, or other surety. Should the County take
this action, Black Rock shall be responsible for all direct and actual costs. related to the
foreclosure action including, but not limited to, legal and administrative costs;
(b) Commencing an action at law for monetary damages or seeking equitable relief,
including specific performance:
(c) In the case of a Black Rock's default as to a material provision of the Franchise,
proceeding to revoke the Franchise; or,
(d) Requiring Black Rock to correct or otherwise remedy the violation prior to
considering the approval of any proposed rate increase if rate regulation is authorized by law and
is in effect.
In determining which remedy or remedies for Black Rock's violation are appropriate, the
County shall take into consideration the nature and extent of the violation, the remedy needed to
prevent such violations in the future, whether Black Rock has a history of previous violations of
the same or, similar kind, and such other considerations as are appropriate under the
circumstances.
. 5.4.2 Revocation. The County. has the right to declare a forfeiture or otherwise revoke
this Franchise, and all rights and privileges pertaining thereto, in the event that:
(a) Black Rock is in violation of any material provision of the Franchise agreement
and fails to correct the violation after written notice of the violation and proposed forfeiture and a
reasonable opportunity thereafter to correct the violation; or
(b) Black Rock becomes insolvent, unable or unwilling to pay its debts, or is
adjudged a bankrupt; or
Black Rock Cable
FRANCHISE ORDINANCE
Page 13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
(c) Black Rock is found to have engaged in any actual or attempted fraud or deceit
upon the County, persons or subscribers; or
(d) Black Rock fails to obtain and maintain any permit required by any federal or
state regulatory body; or
(e) Black Rock fails to maintain the full amount of its security fund or to post a
performance bond as required under the terms of this Franchise.
5.4.3 Procedure.
5.4.3.1 Summary forfeiture. Upon the occurrence of one of the events set out in
subparagraphs (b) through (e), of section 5.4.2, above, following 14 days' written notice to Black
Rock of the occurrence and the proposed forfeiture and an opportunity for Black Rock to be
heard by the County Council, the County may by resolution or other appropriate document,
declare a forfeiture. If Black Rock requests a hearing, it shall be afforded the right to question
witnesses and to require that all testimony be on the record. Findings from the hearing shall be
written, and shall stipulate the reasons for the County's decision. If a forfeiture is lawfully
declared, all rights of Black Rock shall immediately be divested without a further act upon the
part of the County.
5.4.3.2 Forfeiture for breach of material provision.
(a) In the event that the County believes that Black Rock has not complied with the
terms of the Franchise (other than those in subsections (b) through (e) of section 5.4.2), the
County shall notify Black Rock in writing of the exact nature of the alleged noncompliance.
(b) Black Rock shall have 30 days from receipt of the notice described above to (1)
respond to the County contesting the assertion of noncompliance, or (2) to cure such default or,
in the event that by the nature of default such default cannot be cured within the 30 day period,
initiate reasonable steps to remedy such default and notify the County of the steps being taken
and the projected date that they will be completed.
(c) In the event that Black Rock fails to respond to the notice described herein or cure
the default pursuant to the procedures set forth above, or in the event that Black Rock contests
the assertion of non - compliance, the County shall schedule a public meeting to investigate the
non - compliance. The County shall give Black Rock 14 calendar days' notice of the time and
place of such meeting and provide Black Rock with an opportunity to be heard.
(d) In the event the County, after such meeting, determines that Black Rock is in non-
compliance with any provision of the Franchise, the County may impose any of the remedies set
out in section 5.4.1, above.
5.4.3.3 Removal of cable following expiration of franchise. Any order by the County to
remove cable or conduit shall be mailed to Black Rock not later than thirty (30) calendar days
Black Rock Cable
FRANCHISE ORDINANCE
Page 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
following the date of expiration of the Franchise. Black Rock shall file written notice with the
Public Works Director not later than 30 calendar days following the date of expiration or
termination of the Franchise 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 County. Removal shall be completed not later than 12 months
following the date of expiration of the Franchise.
5.5 Failure to Enforce. Black Rock shall not be relieved of any of its obligations to comply
promptly with any provision of the Franchise by reason of any failure of the County to enforce
prompt compliance, and County's failure to enforce shall not constitute a waiver of rights or
acquiescence in Black Rock's conduct.
5.6 Acts of Nature. Black Rock shall not be held in default or non - compliance with the
provisions of the Franchise, nor suffer any enforcement or penalty relating thereto, where such
non - compliance or alleged defaults are caused by acts of nature, power outages, or other events
reasonably beyond its ability to control. However, Black Rock shall take all reasonable steps
necessary to provide service despite such occurrences.
5.7 Alternative Remedies.
(a) As an alternative to the remedy set forth herein, the parties may mutually agree to
submit any alleged violation of the provisions of this franchise to arbitration. The matter shall be
determined by a board of three 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
Franchisee, and one by the two so appointed. Should the two arbitrators be unable to. name a
third, such third arbitrator shall -be named by a judge of the Superior Court for Whatcom County.
Said board shall make its decision in writing and file its decision with the parties within 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.
(b) No provision of this Franchise shall be deemed to bar the right of the County 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 the Franchise nor the exercise thereof shall be deemed to bar or otherwise
limit the right of the County to recover monetary damages (except where liquidated damages are
otherwise prescribed) for such violation by Black Rock, or to seek and obtain judicial
enforcement of Black Rocks obligations by means of specific performance, injunctive relief or
mandate, or any other judicial remedy at law or in equity.
5.8 Compliance with the Laws; eminent domain. Black Rock shall comply with all federal
and state laws and regulations, including regulations of any administrative agency thereof, as
well as all general ordinances, resolutions, rules and regulations of the County heretofore or
hereafter adopted or established during the entire term of this Franchise. Nothing in the Franchise
shall limit the County's right of eminent domain under state law. Nothing in the Franchise shall
Black Rock Cable
FRANCHISE ORDINANCE
Page 15
I be deemed to waive the requirements of any lawful code, ordinance or resolution of the County
2` requiring permits, fees to be paid, or regulation of construction.
3
4
5
6
7
8
9 Section 6. REPORTING REQUIREMENTS.
10
11 6.1 Quarterly Reports. If Black Rock should obtain $100,000.00 per month in gross revenue,
12 Black Rock shall comply with the following quarterly reporting requirements. So long as Black
13 Rock does not obtain $100,000.00 in gross revenue, it shall not have a quarterly reporting
14 requirement. If a quarterly report is required, Black Rock shall:
15
16 (a) Within 45 calendar days after the end of each fiscal quarter of Black Rock, Black
17 Rock shall submit to the County along with its franchise fee payment a financial report showing
18 the basis for computation of such fees. This report shall separately indicate revenues received by
19 Black Rock within the County from such items as basic service, pay TV service, and other
20 sources of revenue.
21
22 (b) Within 60 days after the end of each of Black Rock's fiscal quarters, Black Rock
23 shall submit a written report to the County, verified by an officer of Black Rock, which shall
24 contain:
25 .
26 (1) A statement of all revenues earned by Black Rock or any parent or affiliate
27 (other than a programming affiliate), related to operation of the cable system in the Franchise
28 area, identified by source or type, e.g., basic,. premium, pay per view, installation, advertising,
29 etc. The statement shall be signed by an officer of Black Rock with an explicit certification by
30 the officer that the reported amounts are an accurate reflection of the books and records of Black
31 Rock and are consistent with the requirements of this Franchise;
32
33 (2) An identification and explanation of any adjustment in the amount of gross
34 revenues made in determining the Franchise fee calculation base; and
35
36 (3) A calculation establishing the Franchise fee due and owing.
37
38 6.2 Annual Report. Black Rock shall, no later than five months following the end of Black
39 Rock's fiscal year, present a written report to the County, which shall include:
40
41 (a) A summary of gross revenue calculations for the previous year.
42
43 (b) A signed copy of the previous year's tax return for Black Rock, with a compiled
44 financial statement for Black Rock.
45
Black Rock Cable
FRANCHISE ORDINANCE
Page 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
(c) A summary of the previous year's activities for the Franchise area served by Black
Rock including, but not limited to, the total number of subscribers for each category of service,
the number of homes passed, miles of overhead and underground cable plant.
6.3 Additional Reports. Black Rock shall prepare and furnish to the County, at the times and
in the form prescribed, such additional reports with respect to its operation, affairs, transactions,
or property, as may be reasonably necessary to ensure compliance with the terms of this
Agreement.
6.4 Communications with Regulatory Agencies. Upon request by the County, a summary of,
or if the County requests, actual copies of, all petitions, applications, communications, and
reports submitted by Black Rock 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
Open Video System Franchised hereunder or services provided through such system. Such
information shall be filed with the County no later than 10 days from the date of the request.
Upon request, copies of responses or any other communications from the regulatory agencies to
Black Rock or any affiliate pertaining to the system likewise shall be filed.
In addition, Black Rock and its affiliates shall within 10 days of any communication to or
from any judicial or regulatory agency regarding any alleged or actual violation of a law,
regulation or other requirement relating to the system, provide the County a copy of the
communication, whether specifically requested by the County to do. so or not.
Section 7. COMPENSATION AND FINANCIAL PROVISIONS..
7.1 Gross Revenue Fees. During the term of the Franchise, Black Rock shall pay to the
County an amount equal to 4 % of annual gross revenues derived from subscriptions within
unincorporated Whatcom County, until or unless the provisions of Section 4 are implemented.
At the time those provisions are implemented, the fee shall be increased to 5 % of annual gross
revenues. The 1 % increase shall be dedicated to .PEG use. If any law, regulation or valid rule
alters the 5% ceiling, the County shall have the authority to, but shall not be required to, increase
the gross revenue fees accordingly, provided such increase is for purposes not inconsistent with
Federal law.
(a) Gross revenue fees shall be paid quarterly, not later than May 15, August 15,
November 15, and February 15 for the preceding three -month period ending, respectively, March
31, June 30, September 30, and December 31. Not later than the date of each payment, Black
Rock shall file with the County, a written statement signed by an officer of Black Rock, which
identifies in detail the sources and amounts of gross revenues earned by B1ack.Rock during the
period for which payment is made. 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 County may have for further or additional sums
payable under the provisions of this section.
Black Rock Cable
FRANCHISE ORDINANCE
Page 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
(b) Neither current nor previously paid gross revenue fees shall be subtracted from the
gross revenue amount upon which gross revenue fees are calculated and due for any period,
unless otherwise required by applicable law. Nor shall copyright fees or other license fees paid by
Black Rock be subtracted from gross revenues for purposes of calculating gross revenue fees.
(c) Any gross revenue fees owing pursuant to this Franchise which remain unpaid
more than 45 days after the dates specified herein shall be delinquent and shall thereafter accrue
interest at 12% per annum or 2% above prime lending rate as quoted by major Seattle banks,
whichever is greater.
7.2 Auditing and Financial Records. Black Rock shall manage all of its operations in
accordance with a policy of keeping books and records open and accessible to the County. The
County shall have the right as necessary or desirable for effectively administering and enforcing
the Franchise, to inspect at any time during normal business hours upon reasonable notice, all
books, records, maps, plans, financial statements, service complaint logs, performance test
results, records required to be kept by Black Rock and any parent company pursuant to the rules
and regulations of the FCC and other regulatory agencies, and other like materials of Black Rock
and any parent company which relate to the operation of the Franchise. Black Rock shall not
deny access to the aforementioned records to representatives of the County on the basis that said
records contain "proprietary" information. However, to the extent allowed by Washington law,
the County shall protect the trade secrets and other confidential information of Black Rock and
any parent company. All books and records relating to Black Rock's activities under the
Franchise shall be, or upon request be made, available in the City of Bellingham.
Black Rock agrees to meet with representatives of the County upon request to review its
methodology of record - keeping, financial reporting, computing gross revenue fee obligations,
and other procedures the understanding of which the County deems necessary for understanding
the meaning of reports and records.
The County or its authorized agent may at any time and at the County's own expense
conduct an independent audit of the revenues of Black Rock in order to verify the accuracy of
gross revenue fees paid to the County. Black Rock and each parent company of Black Rock shall
cooperate fully in the conduct of such audit. In the event it is determined through such audit that
Black Rock has paid franchise fees in a lesser amount of more than 2% than was due the County,
then Black Rock shall reimburse the County for the entire cost of the audit within 30 days of the
completion and acceptance of the audit by the County.
The County agrees to request access to only those books and records, in exercising its
rights under this section, which it deems reasonably necessary for the enforcement and
administration of the Franchise.
7.3 Performance Bond. Within 30 days after the award of this Franchise, but in no event
sooner than the finial reading of the Franchise ordinance, Black Rock shall submit to the
Prosecuting Attorney, which shall be filed with the Director of Public Works, a performance
bond running to the County, with good and sufficient surety licensed to do business in the State
Black Rock Cable
FRANCHISE ORDINANCE
Page 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
of Washington and approved by the County in the amount of $10,000.00, conditioned that Black
Rock shall well and truly observe, fulfill, and perform each term and condition of the Franchise.
This bond shall be conditioned that in the event Black Rock shall fail to comply with any one or
more of the provisions of this Franchise, then there shall be recoverable jointly and severally
from the principal and surety of such bond, any damages suffered by the County as a result
thereof, including the full amount of any compensation, indemnification, or cost of removal or
abandonment of property as prescribed; said condition to be a continuing obligation for the
duration of the Franchise and thereafter until Black Rock has liquidated all of its obligations with
the County that may have arisen from the acceptance of the Franchise by Black Rock or from its
exercise of any privilege herein granted. Written evidence of payment of required premiums shall
be filed and maintained with the County. In lieu of the bond, Black Rock may provide for a letter
of credit or similar arrangement to be established giving the County rights substantially the same
as the rights of the County in relation to the bond, the provisions of which letter of credit or other
arrangement shall be subject to the approval of legal counsel for the County.
Neither the provisions of this section, any bond accepted by the County pursuant thereto,
nor any damages recovered by the County thereunder shall be construed to excuse faithful
performance by Black Rock or to limit liability of Black Rock under the Franchise or for
damages, either to the full amount of the bond or otherwise, except as otherwise provided herein.
7.4 Validity of Bond. It at any time during the term of the Franchise, the condition of the
entity issuing the bond shall change in such a manner as to render the bond unsatisfactory to the
County, Black Rock shall replace such bond by a bond of like amount and similarly conditioned,
issued by an entity satisfactory to the County. The County Council, from time to time, may
authorize or require appropriate and reasonable adjustments in the amount of the bond; provided,
however, that prior to any required increase in the amount of the bond, the County shall give
Black Rock at least 60 days prior notice thereof stating the exact reason for the requirement.
Such reasons must demonstrate a change in Black Rock's business practices, which would
materially prohibit or impair its ability to comply with the terms of the Franchise or afford
compliance therewith.
7.5 Security Fund.
(a) Within 30 days after the effective date of this Franchise, Black Rock shall deposit
into a bank account, established by the County, and maintained through the term of this
Franchise with interest running to Black Rock, the sum of $25,000, as security for the
compliance with all orders, permits and directions of any agency of the County, and for the
payment of any claims, liens and taxes due the County or liquidated damages imposed by the
County which arise by reason of the construction, operation or maintenance of the system or
pursuant to the terms of this agreement.
(b) Within 30 days after notice to it that any amount has been withdrawn by the
County from the security fund pursuant to subdivision (a) of this section, Black Rock shall
deposit a sum of money sufficient to restore such security fund to the original amount in the
account at the time of withdrawal.
Black Rock Cable
FRANCHISE ORDINANCE
Page 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
(c) If Black Rock fails, after 10 days' notice to pay the County any delinquent fees,
taxes or other amounts due and unpaid according to the terms of this Franchise; or, fails to repay
to the County, after such 10 days' notice, any damages, costs or expenses which the County shall
be compelled to pay by reason of any act or default of Black Rock in connection with this
Franchise: or fails, after 45 days' notice of such failure by the County to comply with any
provision of the Franchise which the County reasonably determines can be remedied by an
expenditure of the security, the County may immediately withdraw the amount thereof, with
interest and any penalties, from the security fund. Upon such withdrawal, the County shall notify
Black Rock of the amount and date thereof.
(d) The security fund deposited pursuant to this section shall become the property of
the County in the event that the Franchise is canceled by reason of the default of Black Rock or
revoked for cause. Black Rock, however, shall be entitled to the return of such security fund, or
portion thereof as remains on deposit at the expiration of the term of the Franchise, or upon
termination of the Franchise at an earlier date, upon payment of all sums then due from Black
Rock to the County hereunder.
(e) The rights reserved to the County with respect to the security fund are in addition to
all other rights of the County whether reserved by this agreement or authorized by law, and no
action, proceeding or exercise of a right with respect to such security fund shall affect any other
right the County may have.
(f) In lieu of the security fund provided for herein, Black Rock may provide for a letter of
credit or similar arrangement to be established giving the County rights substantially the same as
the rights of the County in relation to the security fund, the provisions of which letter of credit or
other arrangement shall be subject to the approval of legal counsel for the County.
7.6 Indemnification by Black Rock. Black Rock shall, at its sole expense, fully indemnify,
defend and hold harmless the County, and in their capacity as such, the officers and employees
thereof, from and against any and all claims, suits, actions, liability and judgments for damage or
otherwise except those arising wholly from negligence on the part of the County or its
employees; for actual or alleged injury to persons or property, including loss of use of property
due to an occurrence, whether or not such property is physically damaged or destroyed, in any
way arising out of or through or alleged to arise out of or through the acts or omissions of Black
Rock or its officers, agents, employees, or contractors or to which Black Rock's or its officers,
agents, employees or contractors acts or omissions in any way contribute, and whether or not
such acts or omissions were authorized or contemplated by this Franchise or applicable law;
arising out of or alleged to arise out of any claim for damages for Black Rock's invasion of the
right of privacy, defamation of any person, firm or corporation, or the violation of infringement
of any copyright, trademark, trade name, service mark or patent, or of any other right of any
person, firm or corporation; arising out of or alleged to arise out of Black Rock's failure to
comply with the provisions of any statute, regulation or Resolution of the United States, State of
Washington or any local agency applicable to Black Rock in its business. Nothing herein shall be
deemed to prevent the County, its officers, or its employees from participating in the defense of
Black Rock Cable
FRANCHISE ORDINANCE
Page 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
any litigation by their own counsel at such parties' expense. Such participation shall not under
any circumstances relieve Black Rock from its duty of defense against liability or of paying any
judgment entered against the County, its officers, or its employees.
7.7 Black Rock Insurance. Black Rock shall maintain, throughout the term of the Franchise,
liability insurance insuring the County and Black Rock, their respective officers, employees and
agents, with regard to all claims and damages specified herein, in the minimum amounts of:
(a) $1,000,000 for personal injury or death to any one person and $3,000,000
aggregate for personal injury or death per single accident or occurrence.
(b) $1,000,000 for property damage to any one person and $3,000,000 aggregate for
property damage per single accident or occurrence.
(c) $1,000,000 for all other types of liability.
Such insurance shall specifically name as additional insured Whatcom County, its
officers, and employees, and shall further provide that the policy shall not be modified. or
canceled during the life of this Franchise without giving 30 days'. written notice to the County.
Black Rock shall file with the County copies of all certificates of insurance showing up-
to -date coverage, additional insured coverage, and evidence of payment of premiums as set forth
above. Coverage shall not be changed or canceled without approval of the County, and failure to
maintain required insurance may be considered a breach of this agreement. The County may, at
its option, review all insurance coverage. If the County determines that circumstances require
and that it is reasonable and necessary to increase insurance coverage and liability limits to
adequately cover the risks of the County and Black Rock, the County may require additional
insurance to be acquired by Black Rock. The County shall provide Black Rock written notice
should the County exercise its right to require additional insurance. All insurance shall provide
30 days' prior written notice to the County in the event of modification or cancellation. Black
Rock shall provide written notice to the County within 30 days after any approved reduction in
the general annual aggregate limit.
Section 8. MISCELLANEOUS PROVISIONS.
8.1 Posting and Publication. Black Rock shall assume the cost of posting and publication of this
Franchise Ordinance as such posting and publication is required by law and such is payable upon
Black Rock's filing of acceptance of this Franchise.
8.2 Guarantee of Performance. Black Rock agrees that it enters into this Franchise Ordinance
voluntarily in order to secure and in consideration of the grant from the County of a 15 year
Franchise. Performance pursuant to the terms and conditions of this Franchise agreement is
guaranteed by Black Rock.
Black Rock Cable
FRANCHISE ORDINANCE
Page 21
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
.22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
4.1
42
43
44
45
8.3 Entire Agreement. This Franchise agreement contains the entire agreement between the
parties, supersedes all prior agreements or proposals except as specifically set forth herein, and
cannot be changed orally but only by an instrument in writing executed by the parties. This
Franchise is intended to comply with all requirements set forth herein. In the event of a conflict
between the provisions of this Franchise and the provisions of the Whatcom County Code, the
provisions of the Whatcom County Code shall take precedence. To the extent that the Whatcom
County Code changes materially affect this agreement, the parties will mutually agree upon
appropriate amendments to this agreement.
8.4 Consent. Wherever the consent or approval of either Black Rock or the County is
specifically required in this agreement, such consent or approval shall not be unreasonably
withheld.
8.5 Franchise Acceptance. Black Rock shall execute and return to the County three original
franchise agreements. The executed agreements shall be returned to the County accompanied by
performance bonds, security funds, and evidence of insurance, all as provided in this Franchise
agreement. In the event Black Rock fails to accept this Franchise agreement, or fails to provide
the required documents, this Franchise shall be null and void.
8.6 Effective Date. This Ordinance shall be effective Oct. 8, 1999; provided, however,
that if Black Rock does not accept this Franchise and comply with all conditions for such
acceptance set forth herein prior to the effective date, this Ordinance shall be null and void.
8.7 Force Majeure. In the event that either party is prevented or delayed in the performance
of any of its obligations, under this Agreement by reason of acts of God, floods, fire, hurricanes,
tornadoes, earthquakes, or other unavoidable casualties, insurrection, war, riot, vandalism,
strikes, sabotage, boycotts, lockouts, labor disputes, shortage of qualified labor, freight
embargoes, shortages or unavailability of materials or supplies, unusually severe weather
conditions, acts or omissions of the other party, or any other similar event beyond the reasonable
control of that party, it shall have a reasonable time under the circumstances to perform such
obligation under this Agreement, or to procure a substitute for such obligation to the reasonable
satisfaction of the other party.
8.8 Best Efforts. While the Cable Act may not allow the regulation of certain aspects of an
OVS operator, Black Rock nevertheless agrees to use its best efforts to ensure the following:
8.8.1 Emergency Alert Capability. While the FCC has not required OVS operators to
provide an emergency alert capability at this time, Black Rock will use its best efforts to provide
said emergency alert capability to its subscribers at its soonest opportunity.
8.8.2 Obscenity. Black Rock will exercise its best efforts to prevent the transmission
of programming which is obscene or otherwise unprotected by the United States Constitution;
provided, however, Black Rock shall in no way be responsible for programming over which it
has no editorial control, including public, educational and governmental access programming.
Black Rock Cable
FRANCHISE ORDINANCE
Page 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
?1
.12
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
'3
-44
45
8.8.3 Parental Control Device. Upon a subscriber's request, Black Rock shall use
its best efforts to make available a parental control device that will enable the subscriber to block
all access to any and all channels without affecting those not blocked.
PASSED by Council this 21 day of September ,1999.
Council Chair, Acting Tom Brown
APPROVED by me this day of ,1999.
County Executive
APPROVED AS TO FORM:
Whatcom County Prosecuting Attorney's Office.
Published:
ACCEPTED BY BLACK ROCK CABLE INC.
DATE: _ 1-% /4
1IM
Name/' STD h'h��hYJe
Title: Qies>C
Black Rock Cable
FRANCHISE ORDINANCE
Page 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
`1
z2
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
GUARANTEE OF PERFORMANCE. On behalf of Black Rock Cable, Inc., the Franchisee
herein, and a corporation duly authorized to do business in Washington State, I represent as
follows:
(1) That I am an officer of Black Rock Cable, Inc., duly authorized to make the following
representation:
(2) That I have read and understand this Ordinance granting the franchise
herein; and,
(3) That Black Rock Cable, Inc., hereby unconditionally guarantees performance of each and
every obligation of Black Rock Cable, Inc., set forth herein, and will timely provide to Whatcom
County a duly executed Guarantee in Lieu of Security Fund acceptable to the County.
DATE:
BY:
N e: (.7" 41 k �e�
Title: /X I,
Black Rock Cable
FRANCHISE ORDINANCE
Page 25
CERTIFICATE OF COMPLIANCE AND
ACCEPTANCE OF FRANCHISE
Black Rock Cable, Inc. by this Acceptance, affirmatively represents that it is licensed to
transact business in Washington State and in compliance with all laws regulating conduct of
business in Washington State.
In response to the offer of Franchise in Whatcom County Ordinance No. 99 -046
approved this 21s' day of September , 1999, I, John Kehres, authorized agent of
Black Rock Cable, Inc. does accept the grant and terms therein, and agrees to conduct its
business in that name until different notice is delivered to the County Executive and department
of Public Works.
this If g day of . 6&104k4�1 , 1999.
NOTARY
N - *- Z
a PUWC
,7h1'20, �6
`F WASN�
o1i i flehres
President
STATE OF WASHINGTON )
) ss.
COUNTY OF WHATCOM )
-4
On this 5 day of Q 19 ct'�, personally appeared to me
John Kehres, to me known to be the person individually described in and who executed the
above instrument and who acknowledged to me the act of signing and sealing thereof.
NOTARY OUBLIC in and for the State
of Washington, residing at:
My commission expires:
IIRANCIHSEACC - 1/2092