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HomeMy WebLinkAboutord1988-051I 1 1 INTRODUCED BY: Consent 2 PROPOSED BY: Public Works Dept.�� 3 DATE INTRODUCED: May 19, 1988 4 ORDINANCE NO. 88 -51 5 AN ORDINANCE IN THE MATTER OF GRANTING A NONEXCLUSIVE FRANCHISE TO SAN JUAN CABLE 6 AND CONSTRUCTION FOR A PERIOD OF 25 YEARS PURSUANT TO STATE LAW AND SECTION 9.30 OF 7 THE WHATCOM COUNTY HOME RULE CHARTER, TO OPERATE AND MAINTAIN A CABLE COMMUNICATION 8 SYSTEM WITHIN THE UNINCORPORATED AREAS OF WHATCOM COUNTY. 9 10 WHEREAS, the Home Rule Charter for Whatcom County, Section 9.30 11 authorizes the County Council to grant non - exclusive franchises for a fixed term 12 not to exceed 25 years for the use of any street, road or public place; and 13. WHEREAS, R.C.W. Chapter 36.55 provides that the County Council may 14 grant franchises to persons or private or municipal corporations to use that 15 right -of -way of County roads in their respective counties for the construction 16 and maintenance of water works, gas pipes, telephones, telegraph and electrical 17 light lines, sewers and other such facilities and including cable television 18 wires and other cable television facilities; and 19 WHEREAS, San Juan Cable and Construction has applied for a 25 -year non - 20 exclusive franchise to operate and maintain coaxial cable along certain roads in 21 Whatcom County, Washington, and notice of this hearing having been duly 22 published on May 25, 1988 and June 1, 1988 in the Westside 23 Record Journal, the official newspaper for Whatcom County, and that it appear - 24 ing to the County Council that notice of said hearing having been given as 25 required by law and that it is in the public interest to grant the franchise 26 for a period of 25 years; and 27 WHEREAS, in consideration of granting of the non - exclusive franchise, 28 Whatcom County shall receive a sum equivalent to four percent (4 %) of all gross 29 subscriber revenues from the operation and installation of cable facilities and 30 services and has agreed to the addition of certain administrative provisions to 31 the franchise as provided herein: 32 ORDINANCE - 1. Date drafted: 4/28/88 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 NOW, THEREFORE, BE IT ORDAINED by the Council of Whatcom County, Washington: Section 1. Franchise Granted. (a) A non - exclusive franchise for San Juan Cable and Construction, located in the county of Whatcom, its successors and assignees, referred to as the grantee, is hereby granted for a period of 25 years commencing on the date this ordinance shall become effective, the non - exclusive rights and privileges to construct, erect, operate and maintain coaxial cable 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 programing. (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 29 Township 38N Range 1E Nugent Road Section 32 Township 38N Range 1E ORDINANCE - 2. Date drafted: 4/28/88 West Shore Drive Taft Drive Melcher Avenue Graler Place Island View Drive Blizzard Road Nugent Road Section 33 Township 38N Range 1E Nugent Road Lane Spit Drive Blizzard Road Dorothy Way Section 5 Township 37N Range 1E Blizzard Road West Shore Drive Section 4 Township 37N Range 1E Blizzard Road Nugent Road Neil Ave. Centerview Road Tuttle Lane Hilltop Road Section 8 Township 37N Range 1E Legoe Bay Drive West Shore Drive ORDINANCE - 2. Date drafted: 4/28/88 1 Section 9 Township 37N Range 1E Legoe Bay Drive Hilltop Road 2 Legoe Bay Place Nugent Road Constitution Street Joans Lane 3 Antionettes Lane Tuttle Lane 4 Section 3 Township 37N Range 1E Nugent Road 5 Section 10 Township 37N Range 1E 6 Nugent Road McLean Avenue Kildonan Avenue Seacrest Drive 7 Maple Street Wildwood Terrace Bay View Avenue Milton Avenue 8 Cedar Street Private Lane (Constitution Street) 9 Section 16 Township 37N Range 1E 10 Nugent Road 11 Section 15 Township 37N Range 1E Nugent Road Walnut Street 12 Sunrise Road Cedar Street Seacrest Drive Sunrise Cove Road 13, Section 14 Township 37N Range 1E 14 Sunrise Cove Road Seacrest Drive Cove Avenue 15 Section 23 Township 37N Range 1E 16 Baker Avenue Beach Avenue Cedar Avenue Island Drive 17 Jamison Street Mt. Vista Drive Scenic Drive Scenic Avenue 18 Hales Passage Drive Carol Avenue Dogwood Terrace Rosewood Terrace 19 Section 24 Township 37N Range 1E 20 Beach Avenue Cedar Avenue Clark Berry Way 21 Aiston Cr. W. 22 Section 1 Township 38N Range IE Haxton Way Lummi Shore Road 23 Section 11 Township 38N Range 1E 24 Tustin Road 25 Section 12 Township 38N Range 1E Kwina Road Tustin Road 26 Lummi Shore Road Haxton Way Chief Martin Road 27 Section 14 Township 38N Range 1E 28 Haxton Road Harnden Road 29 Section 13 Township 38N Range 1E Scott Road Haxton Road 30 Chief Martin Road 31 Section 23 Township 38N Range 1E Harnden Road Haxton Way 32 Boynton Road Robertson Road ORDINANCE - 3. Date drafted: 4/28/88 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 Section 28 Township 38N Range lE Robertson Road Haxton Way Cagey Road Sunset Way Balch Road Kimley Road Smokehouse Road Section 35 Township 38N Range 1E Smokehouse Road Section 27 Township 38N Range 1E Haxton Road Leeward Way Section 34 Township 38N Range 1E Leeward Way Haxton Road Michael Road MacKenzie Road Velma Road Emma Road Ruth Road Grove Road Lena Road Finkbonner Road Lummi View Drive Section 3 Township 37N Range lE Lummi View Drive Lena Road MacKenzie Road Section 2 Township 37N Range 1E Lummi View Drive Bay Lane Lummi Shore Road Postal Avenue Section 11 Township 37N Range 1E Lummi View Drive Lummi Shore Road Section 36 Township 37N Range 1E Lummi Shore Road Section 1 Township 37N Range 1E Lummi Shore Road Section 36 Township 38N Range 1E Lummi Shore Road Smokehouse Road Section 29 Township 38N Range 1E Smokehouse Road Cagey Road Lummi Shore Road Chief Martin Road Section 30 Township 38N Range 2E Lummi Shore Road Cagey Road Lightning Bird Lane Section 19 Township 38N Range 2E Lummi Shore Road Section 18 Township 38N Range 2E Lummi Shore Road Scott Road Section 7 Township 38N Range 2E Lummi Shore Road Kwina Road All of above will be all aerial construction of coaxial cable. Chief Martin Road was included in this list even though there are no residences. Inclusion of the road may be appropriate at this time in order to include the area for future development. ORDINANCE - 4 Date drafted: 4/28/88 1 Section 2. Acceptance of Franchise. 2 (a) No franchise hereunder shall become effective for any purpose 3 unless and until written acceptance therefore shall have been filed with the 4 Whatcom County Council and County Director of Public Works and such written 5 acceptance shall be in form and substance as shall be prescribed and approved by 6 the County Prosecuting Attorney and operate as an acceptance of each and every 7 term and condition and limitation contained in this ordinance, and in such 8 franchise; 9 (b) Such written acceptance shall be filed by Grantee not later than 10 the thirtieth day following the effective date of the ordinance granting such 11 franchise; and in default of the filing of such written acceptance as herein 12 required. Q w.too shall 4a deemed to havo rajoctad the same. 13. Section 3. Entering Rights of Way. 14 The Grantee, its successors and assignees, shall have the right and 15 authority to enter upon the above - mentioned County roads, rights -of -way and 16 other County property as designated hereinbefore, for the purposes of construct - 17 ing its transmission lines and all necessary facilities connected therewith, and 18 for repairing all such lines and facilities, and for operating and maintaining 19 said lines and facilities. 20 Section 4. Construction Standards. 21 All construction and installation work along, under or over County 22 roads or rights -of -way or other County property outside the corporate limits of 23 any incorporated town shall be subject to the approval and pass the inspection 24 of the Director of Public Works and shall conform to all applicable County, 25 State and Federal minimum standards, codes or regulations, and the County 26 expressly reserves the right to prescribe how and where mains, poles, lines, and 27 wires shall be installed and may from time to time upon reasonable notice, 28 require the removal and replacement thereof in the public interest. 29 Section 5. Construction Application. 30 (a) Prior to commencement of construction of said transmission lines 31 or facilities, Grantee shall first file with the Director of Public Works its 32 application for permit to do such work, together with plans and specifications ORDINANCE - 5. Date drafted: 4/28/88 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 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 pro- perty 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 shall 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 Ordinance No. 79 -70 (an ordi- nance providing for the issuance of revocable encroachment permits for work in County roads and rights -of -way), pay all permit fees as required, and Resolution No. 79 -21, (a resolution 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, inspec- tion and approval of such work on account of granting the said permits. Section 6. Construction on Roadways /Other County Property. (a) In any work which 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 ORDINANCE - 6. Date drafted: 4/28/88 1 of the Grantee now in existence or hereafter constructed, the Grantee shall be 2 governed by and conform to the general rules adopted by the officers charged 3 with the supervision and care of such County roads, rights -of -way, and other 4 County property; and the Grantee at its own expense and with all convenient 5 speed shall complete the work for which the soil has been broken and forthwith 6 replace the work and make good the County road, rights -of -way or other County 7 property and leave the same in as good condition as before the work was com- b menced. 9 (b) Applications for permits referred to in Section 5 above shall be 10 accompanied by specifications for the restoration of the County road, rights -of- 11 way or other County property and to the same or better condition as it was prior 12 to such breaking, and such specifications must be approved by the Director of 13. Public Works before such breaking of the soil is commenced. Provided, that the 14 Director of Public Works shall require compliance with Whatcom County Ordinance 15 No. 79 -70 to insure that such County roads, rights -of -way or other County pro - 16 perty shall be restored to the same or better condition as it was prior to the 17 breaking of the soil. The Grantee, in addition to any other such requirements 18 contained herein, shall be subject to the conditions and penalties as provided 19 in Whatcom County Ordinance No. 79 -70, existing or hereafter revised. 20 (c) The Director of Public Works may at any time, order, or have 21 done, any and all work that is considered necessary to restore to a safe con - 22 dition any such County road, rights -of -way or other County property left by the 23 Grantee or its agents in a condition dangerous to life or property, and the 24 Grantee upon demand shall pay to the County all actual costs of such work. 25 Section 7. Construction - Other Lines and Facilities. 26 (a) All construction or installation of such lines and facilities, 27 service repair or relocation of same, performed over, above, along or under the 28 County roads, rights -of -way or other County property subject to this Franchise 29 shall be done in such a manner as not to interfere with the construction and 30 maintenance of other utilities lines, public or private, drains, drainage 31 ditches and structures, irrigation ditches and structures located therein, nor 32 ORDINANCE - 7. Date drafted: 4/28/88 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 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 line 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 relo- cating or changing the grade of any such County road or right -of -way. Section 8. Construction - Public Safety and Inconvenience. 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 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. ORDINANCE - 8. Date drafted: 4/28/88 O 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 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 regrading, planking or paving the same, changing the grade, altering, changing, repairing or relocating the same or by constructing drainage facili- ties, or in the event that such County road, right -of -way or other County pro- perty 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. 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 pre- clude 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 ORDINANCE - 9. Date drafted: 4/28/88 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 markers. The reference points shall be so located that they will not be disturbed during the Grantee's operations under this Franchise. The method of referencing these monuments or other points to be referenced shall be approved by the Director of Public Works. The replacement of all such monuments or other points to be referenced shall be approved by the Director of Public Works. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit, and as directed by the Director of Public Works. The cost of monuments or other markers lost, destroyed or disturbed, and the expense of replacement by approved monuments shall be borne by the Grantee. (b) A complete set of reference notes for monuments and other ties shall be filed with the Whatcom County Director of Public Works. If at any time the County of Whatcom shall vacate any County road, right -of -way or other County property which is subject to the rights granted by this Franchise and said vacation shall be for the purpose of acquiring the fee of 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 capa- city, 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. 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 what- soever kind or nature whether to persons or property, arising wholly or par- tially out of any act, action, neglect, omissions or default on the part of the ORDINANCE - 10. Date drafted: 4/28/88 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 Grantee, his 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 will upon notice to him 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 will 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 lion upon the trsmsission 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 construction, altering, maintaining, using or vacat- ing any of said roads, rights -of -way, drainage structures or facilities, irriga- tion structures or facilities, or any other County property or affect its jurisdiction over them with full power to make all necessary changes, reloca- tions, repairs, maintenance, as the County may deem fit. Section 16. Successors and Assignees. All the provisions, conditions, regulations and requirements herein contained shall be binding upon the successors and assignees of the Grantee, and ORDINANCE - 11. Date drafted: 4/28/88 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 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 men- tioned wherever the Grantee is mentioned herein. Section 17. Transferability. Neither this,Franchise nor any interest therein shall be sold, trans- ferred or assigned without the previous consent in writing of the Council of Whatcom County, such consent not to be unreasonably withheld. Section 18. Incorporation. Whenever any of the County roads, rights -of -way or other County pro- perty 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 30 assured subscribers per mile of aerial distribution cable (60 potential subscribers per mile of underground distribu- tion cable) of new construction required. Such construction and services ren- dered 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 ser- vices 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. ORDINANCE - 12. Date drafted: 4/28/88 1 Section 20. Installation Specifications. 2 In preparing plans and specifications for the installation of trans - 3 mission lines along or across County roads and rights -of -way, the Grantee shall 4 use as a guide the standards and specifications contained in the National 5 Electrical Safety Code (National Bureau of Standards); National Electrical Code 6 (National Bureau of Fire Underwriters); Bell System Code of Pole Line Construc- 7 tion; applicable FCC or other Federal, State or local codes and regulations; 8 State and municipal construction standards. 9 Section 21. Enforcement /Remedies. 10 (a) If the Grantee shall willfully violate, or fail to comply with any 11 of the provisions of this franchise through willful or unreasonable neglect, or 12 fail to hood or comply with any notice given the Grantee under the provisions of 13. this franchise, then the said Grantee shall forfeit all rights conferred here - 14 under, and this Franchise may be revoked or annulled by the Council of Whatcom 15 County. In addition to any rights implied or set out elsewhere in this ordi- 16 nance, the Council reserves the right to apply, at its sole option, any one or 17 combination of the following in the event the company violates any provisions of 18 the franchise: 19 (1) Levy an assessment of actual damages. 20 (2) Reduce the duration of the franchise on such basis as the 21 arbitrator may deem reasonable and justified. 22 (3) Require a reduction in the company's rates by such amount or 23 amounts as may be necessary to remedy the violation. 24 (4) Require the company to make payments or refunds to its custo- 25 mers or classes of customers in such amount as may be necessary to remedy the 26 violation. 27 (5) Require the company to correct or otherwise remedy the viola - 28 tion prior to any consideration of implementation of rate increase if the viola - 29 tion relates to rates. 30 (6) Require the company to specifically comply with the terms and 31 onditions of the franchise ordinance. 32 RDINANCE - 13. ate drafted: 4/28/88 1 (b) In the event of a dispute over a violation of the provisions of 2 this franchise either party may submit resolution of the violation to arbitra- 3 tion. The matter shall be determined by a board of three (3) arbitrators, all of 4 dhom shall be citizens and taxpayers of the State of Washington, and shall be 5 selected as follows: One by the County Council, one by the Grantee, and one by 6 the two so appointed. Should the two arbitrators be unable to name a third, 7 such third arbitrator shall be named by a judge of the Superior Court for g dhatcom County. Said board shall make its decision in writing and file its g Jecision with the parties within sixty (60) days from the date of the appoint - 10 nent of the final arbitrator. The decision of the board shall be by a majority 11 iote and signed by at least two arbitrators. The written decision shall be 12 final and binding upon the parties. 13. Section 22. Eminent Domain /Reservation of Home Rule Charter Rights. 14 This franchise shall be subject to the power of eminent domain and the 15 right of the Council or the people acting for themselves through the initiative 16 r referendum to repeal, amend or modify the franchise in the interest of the 17 ublic. In any proceeding under eminent domain the franchise itself shall have 18 io value. This section sets forth the requirements of Section 9.30 of the 19 hatcom County'Home Rule Charter and shall remain in affect so long as the 20 Aarter provision is valid. 21 Section 23. Compliance with Laws and Regulations. 22 This franchise is subject to, and the Grantee shall comply with all 23 applicable Federal, State, County or municipal laws, regulations and policies 24 affecting performance under this franchise. 25 Section 24. Franchise Payments to County. 26 (a) In consideration of the granting of this Franchise and to compen- 27 ate Whatcom County for the Grantee's occupancy of County roads, rights -of -way 28 nd other County property, as well as the expenses incurred in processing this 29 Irant and to be incurred in connection with pedriodic inspections and control as 30 rovided herein, the Grantee shall pay to Whatcom County, annually a sum 31 quivalent to four percent (4 %) of the gross subscriber revenues received from 32 DINANCE - 14. to drafted: 4/28/88 1 the installation and operation of its facilities and /or services to patrons 2 served from lines, wires, cables or other devices installed along, under or over 3 public rights -of -way or across County property as herein granted. Said sum 4 shall be due and payable in United States dollars. The term "gross subscriber 5 revenues" is meant to include only those revenues derived from the supplying of 6 basic subscriber service; that is, the installation fees, disconnect and recon- 7 nect fees, and fees for regular cable benefits including the transmission of 8 broadcast signals and access and origination channels if any. It does not 9 include revenues derived from per - program or per - channel charges, leased channel 10 revenues, advertising revenues, or any other income derived from the system nor 11 shall such term include any taxes on services furnished by the Grantee which are 12 imposed directly on any subscriber or user by the State, County or any other 13. governmental unit and collected by the Grantee on behalf of such governmental 14 unit. 15 (b) The Grantee's annual payments shall be remitted no later than the 16 30th day following the end of the annual period covered by the payment. The 17 Grantee shall be subject to a penalty of ten percent (10 %) per annum of the sum 18 delinquent, during the term delinquent; and further provided that this franchise 19 and all rights'and privileges granted hereunder shall terminate and be forfeited 20 if Grantee should exceed three months delinquent in the submission of the annual 21 payments hereunder required, after receiving written notice from Whatcom County 22 of the delinquency to the local systems office by certified mail. 23 Section 25. Franchise Payments to County Not In Lieu of Other Taxes. 24 Any franchise payments to the County by Grantee shall not be in lieu of 25 any occupation, income, license, or property tax or similar levy, assessment, 26 fee, or charge which would otherwise apply to and be payable by Grantee. No 27 privileges or rights granted hereunder shall exempt Grantee from any future uni- 28 form rent, license, tax charge, or impost which may hereafter be required by the 29 Grantor, for revenue or as reimbursement for use and occupancy of public ways, 30 and failure to timely remit any sums properly due thereby, shall be cause for 31 forfeiture of rights hereunder. 32 ORDINANCE - 15. Date drafted: 4/28/88 1 Section 26. Inspection and Information. 2 (a) Grantee shall at all reasonable times, and to the extent neces- 3 sary to carry out the provisions of this ordinance, permit any duly- authorized 4 agent or representative of the County to examine all franchise property of 5 Grantee, together with any appurtenant property of Grantee situated within or 6 without the County, and to examine and transcribe all maps and other records 7 kept or maintained by Grantee, or under the control or direction, or at the 8 request of Grantee, which treat of the franchise operations, affairs, transac- 9 tions, or property of the Grantee. 10 (b) Any of such maps or such other records which are not situated 11 within the County and which are not made available in the County within a reaso- i2 nable time after written request therefor by the Council or the Prosecuting 13. Attorney, shall be produced for examination wherever the same shall be situated 14 and Grantee shall pay all travel and other expenses necessary or reasonably 15 incurred by the County, its agents, and representatives in making such examina- 16 tion. 17 (c) Grantee shall prepare and furnish to the Director of Public Works, 18 at such times and in such form as prescribed by the Director, references and 19 materials with respect to the operations, affairs, transactions or property of 20 Grantee, as may be reasonably necessary or appropriate to the performance of any 21 of the duties of the County of Whatcom. 22 Section 27. Services to Consumers /Public. 23 (a) The Grantee shall: 24 (1) Correct malfunctions promptly, but in no event later than 25 twenty -four (24) hours after occurrence except for Acts of God and other con - 26 ditions beyond the control of the Grantee, in which cases the Grantee shall 27 correct the malfunctions with all deliberate speed. 28 (2) Promptly answer complaints by users. 29 (3) Give 24 -hour notice to users of planned interruptions of 30 service, insofar as is possible, and attempt to have such interruptions occur 31 during periods of minimum use of the system. 32 ORDINANCE - 16. Date drafted: 4/28/88 1 2 3 4 5 6 7 8 9 10 11 122. 13. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 (4) Maintain an office within Whatcom County, which office shall be open during all usual business hours, with its telephone listed in direc- tories 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 e.vailable 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 Director of Public Works shall have the primary responsibility for the administration of complaints regarding franchises and the County Executive shall approve procedures to be followed by the Director i'n 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 remedies available to him. (c) To promote the health, safety and welfare of the citizens of Whatcom County, the County Council may request, and the Company shall provide, the following: :(1) At least one special designated non - commercial local origi- nation channel available on a first come, non - discriminatory basis for the pur- pose of public service programming and for use by local educational, govern- mental and emergency authorities. (2) The company shall provide, without charge, one service drop (line) at each public facility designated by the County, that is passed by existing cable up to a maximum of five (5) drops. ORDINANCE - 17. Date drafted: 4/28/88 1 Section 28. Insurance. 2 (a) Upon acceptance of such franchise, the Grantee shall file with 3 the Whatcom County Council, and shall thereafter, during the entire term of such 4 franchise, maintain in full force and effect, a corporate insurance policy or 5 other adequate surety agreement in the amount of FIVE HUNDRED THOUSDAND DOLLARS 6 ($500,000.00) for property damage coverage, and THREE HUNDRED THOUSDAND DOLLARS 7 ($300,000.00) for public liability coverage, so as to protect the County against 8 damages or costs as set forth in Section 14 above, and there shall be reco- 9 verable, jointly and severally from the principal and surety, any such damages 10 or costs suffered or incurred by the County, including attorneys' fees and costs 11 of any action, or proceedings, and including the full amount of any compen- 12 sation, indemnificatlon, cost of romoval of any property or other costs which 13 may be incurred up to the full principal amount of such insurance policy; and 14 said condition shall be a continuing obligation during the entire term of such 15 franchise and thereafter until Grantee shall have satisfied in full any and all 16 obligations to the County and any user which arise out of or pertain to said 17 franchise. Neither the provisions of this section, nor any insurance policy 18 accepted by the County pursuant hereto, nor any damages recovered by the County 19 thereunder, shall be construed to excuse faithful performance by the Grantee, or 20 limit the liability of the Grantee under any franchise issued pursuant to this 21 ordinance. 22 (b) The Prosecuting Attorney, at the request of the County Council, 23 may review the dollar amount of said insurance policy and adjust the amount of 24 overage as deemed appropriate within each five years of the length of the 25 franchise. 26 Section 29. Repealers. 27 All other prior existing franchises granted to San Juan Cable and 28 Construction shall be repealed, and the terms of the franchise granted hereunder 29 shall become effective at such time as an acceptance of franchise is filed by 30 he Grantee with the County in accordance with Section 2 herein. 31 32 DINANCE - 18. to drafted: 4/28/88 11 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 Section 30. Severability. If any portion of the ordinance is deemed invalid, the remainder will remain in effect. 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 16th day of June 1988 WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON William P. Roehl Chairperson ATTEST: APPROVED ( ) VETOED Clerk of the Council SHIRLEY VAN Z NTEN County Executive APPROVED AS TO FORM: js , tamer ii v y Prosecuting Attorney Published on May 25, 1988 and This ordinance becomes effective on DINANCE - 19 to drafted: 4/28/88 Date: June 17, 1988 June 1, 1988 and June 22, 1988 June 27, 1988 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 APPENDIX "A" IN THE MATTER OF FRANCHISE ) SAN JUAN CABLE AND CONSTRUCTION ) ACCEPTANCE OF FRANCHISE SAN JUAN CABLE AND CONSTRUCTION hereby accepts, subject to all the con- ditions therein contained, that certain Franchise to lay, construct, erect, install, operate, maintain, repair and /or replace telephone, telegraph and other telecommunications lines, equipment, facilities and apparatus, and all necessary appurtenances thereto, along, in, over, under and across all public roads, streets, highways and rights -of -way, now existing or hereafter established, within Sections 1, 11, 12, 13, 14, 23, 27, 28, 29, 329 33, 34, 35, 36, of Township 38 North, Range 1 East, W.M., Sections 1, 2, 3, 4, 5, 8, 9, 10, 11, 14, 15, 16, 23, 24, 36 of Township 37 North, Range 1 East, W.M., and Sections 7, 18, 19 and 30 of Township 38 North, Range 2 East, W.M., Whatcom County, Washington. FRANCHISE granted on the day of 19 , Is for a peri ®d of tw @nty -five (26 yearn, ORDINANCE - 20. Date drafted: 4/28/88 SAN JUAN CABLE AND CONSTRUCTION By: