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Form CATV Franchise (3/2000 rev.)
Not an official copy.
Snohomish County, WA
ORDINANCE NO. 01-036
AN ORDINANCE GRANTING A NONEXCLUSIVE FRANCHISE AUTHORIZING LIMITED
USE OF THE PUBLIC ROAD RIGHTS-OF-WAY IN SNOHOMISH COUNTY, WASHINGTON
TO BLACK ROCK CABLE, INC.
WHEREAS, Black Rock Cable, Inc. has applied to Snohomish County, Washington
for a nonexclusive franchise to construct, maintain, operate, replace and repair
a cable system in, on, across, over, along, under, or through public rights-of-way
within unincorporated Snohomish County; and
WHEREAS, The Washington State Constitution, by and through its general grant
of police power, and Section 36.55.010 of the Revised Code of Washington authorize
counties to grant franchises for use of public rights-of-way; and
WHEREAS, Title 13 of the Snohomish County Code specifies requirements for franchises
in Snohomish County rights-of-way; and
WHEREAS, the 1934 Communications Act, as amended by the 1996 Telecommunications
Act, 47 USC § 151, et seq., recognizes and provides state and local government
authority to manage the public rights-of-way and to require fair and reasonable
compensation on a competitively neutral and nondiscriminatory basis; and
WHEREAS, a franchise is a legislative authorization to use public rights-of-way
and actual construction and activities in the rights-of-way will be subject
to administratively approved Right-of-Way Use Permits after review of specific
plans; and
WHEREAS, it has been found to be in the public interest for a franchise authorizing
use of public rights-of-way for a cable system to be issued to Black Rock Cable,
Inc. by enactment of an ordinance;
NOW, THEREFORE, SNOHOMISH COUNTY DOES ORDAIN:
TABLE OF CONTENTS
Section 1. Franchise Granted - Term and Scope.
Section 2. Non-Exclusive Franchise Grant.
Section 3. Right-of-Way Use Permit Required for All Work in Right-of-Way.
Section 4. Emergency Work - Permit Waiver.
Section 5. Compliance with Applicable Laws.
Section 6. Restoration of Right-of-Way.
Section 7. Maps and Records of Facility Location.
Section 8. Relocation of Facilities.
Section 9. Undergrounding of Facilities.
Section 10. Maintenance of Facilities.
Section 11. Dangerous Conditions, Authority for County to Abate.
Section 12. Abandonment of the Franchisee's Facilities.
Section 13. Fees, Compensation for Use of Rights-of-Way, and Taxes.
Section 14. Hold Harmless and Indemnification.
Section 15. Limitation of County Liability.
Section 16. Insurance.
Section 17. Bond or Performance Security.
Section 18. Modification.
Section 19. Annexation.
Section 20. Vacation.
Section 21. Assignment.
Section 22. Termination, Revocation and Forfeiture.
Section 23. Remedies to Enforce Compliance.
Section 24. Nonwaiver of Rights or Remedies.
Section 25. Records.
Section 26. County Ordinances and Regulations - Reservation of
Police Power.
Section 27. Eminent Domain, Powers of the People.
Section 28. Survival.
Section 29. Governing Law and Stipulation of Venue.
Section 30. Severability.
Section 31. Access Channel Capacity Designated for Public, Educational,
Section 32. Notice and Emergency Contact.
Section 33. Acceptance.
Section 34. Effective Date.
Section 1. Franchise Granted - Term and Scope.
1.1 Pursuant to Section 36.55.010 of the Revised Code of Washington (RCW) and
Chapter 13.80 of the Snohomish County Code (SCC), Snohomish County, a political
subdivision of the State of Washington (hereinafter the "County"), hereby grants
to Black Rock Cable, Inc. a telecommunications company organized under the laws
of the State of Nevada, its successors and assigns (hereinafter the "Franchisee"),
subject to the terms and conditions in the County code, the Engineering Design
& Development Standards (EDDS) and this franchise ordinance, a non-exclusive
franchise.
1.2 The term of this franchise shall be for a period of five (5) years, beginning
on the effective date of this franchise, unless terminated, revoked or modified
under the provisions of this franchise. This franchise shall be automatically
renewed for additional five (5) year terms, up to a total of fifteen (15) years
from the effective date of this franchise, UNLESS, not less than sixty (60)
days prior to the termination of the current term or extension, the County gives
notice of its intention to renegotiate the terms or conditions of the franchise,
in which case, the franchise shall not renew unless and until the County and
the Franchisee reach agreement on terms and conditions acceptable to both parties.
If the County and the Franchisee are unable to reach agreement on new terms
and conditions, the franchise shall terminate and the Franchisee shall remove
its facilities from the County rights-of-way unless otherwise allowed under
section 12.
1.3 At any time after the fifth (5th) anniversary date of this franchise, the
County may direct the Franchisee to meet and discuss in good faith amendments
to this franchise or enter into separate agreements, provided that in the event
that mutual agreement is not attained, the County may schedule before the County
Council the consideration of such amendments and the County Council may take
such action as it deems appropriate. The authority of the County to consider
mutually agreed amendments and, after the initial five (5) year period, to consider
and take unilateral action on amendments in the event the parties do not reach
mutual agreement, shall be in addition to, and shall in no way limit, the ability
of the County to make amendments and changes to the franchise conditions, negotiate
renewals or extensions of the franchise term, or take action pursuant to any
other sections of this franchise, including, but not limited to, sections 18,
26 and 27.
1.4 This franchise grants the Franchisee the right, privilege and authority
to locate, construct, operate, maintain, replace and use its facilities, including
all necessary equipment and facilities appurtenant thereto (referred to as "facilities"),
for a cable system in, on, across, over, along, under or through the public
rights-of-way of the County, subject to all applicable provisions of Title 13
SCC (including EDDS), chapter 36.55 RCW, and the terms and conditions of County
right-of-way use permits issued pursuant to Title 13 SCC and Section 3 of this
franchise. "Cable system" as used herein shall be as defined in the provisions
of the federal Communications Act of 1934 relevant to cable television regulation,
as amended by the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competition Act of 1992, the Telecommunications Act
of 1996, and as further amended from time to time. "Public rights-of-way" as
used herein means all public streets, roads, ways, or alleys of the County as
now or hereafter laid out, platted, dedicated or improved. This franchise merely
authorizes the Franchisee to occupy and use the public rights-of-way within
the County and nothing contained herein shall be construed to grant or convey
any right, title, or interest in or to such public rights-of-way to the Franchisee.
1.5 This nonexclusive franchise also authorizes the Franchisee to construct
and operate a cable system over public rights-of-way as the term "franchise"
is used under Title VI - "Cable Communications," in the federal Communications
Act of 1934, as amended. If the Franchisee is engaged in the provision of telecommunications
services other than "cable services," the grant of franchise under Title VI
of the federal Communications Act shall not apply to the provision of telecommunications
services. Any telecommunications facilities placed within public rights-of-way
shall be subject to the provisions of this County franchise authorizing limited
use of the public road rights-of-way under the Washington State Constitution
general grant of police power, chapter 36.55 RCW, and county code.
1.6 This franchise covers public rights-of-way in the unincorporated areas
of Snohomish County located within the unincorporated area of the county legally
described in RCW 36.04.310 and including portions of all 36 sections and government
lots of Townships 27, 28, 29, 30, 31 and 32 North, in Ranges 3, 4, 5, 6, 7,
8, 9 and 10 East, Willamette Meridian (W.M..).
Section 2. Non-Exclusive Franchise Grant.
2.1 This franchise is granted upon the express condition that it shall not
in any manner prevent the County from granting other or further franchises in,
on, across, over, along, under or through any rights-of-way. Such franchise
shall in no way prevent or prohibit the County from using any of said roads,
right-of-way or other public properties or affect its jurisdiction over them
or any part of them, and the County shall retain power to make all necessary
changes, relocations, repairs, maintenance, establishment, improvement, dedication,
or vacation of the same as the County may deem fit, including the dedication,
establishment, maintenance, and improvement of all new rights-of-way, thoroughfares
and other public properties of every type and description.
2.2 All of the Franchisee's facilities located and operated within the right-of-way
and all work undertaken on any road right-of-way shall be done in such a manner
so as to not interfere with the public use of the county road and right-of-way
for transportation and other governmental purposes, the construction and maintenance
of other authorized facilities or improvements, public or private, nor the operation,
maintenance or improvement of any county road, right-of-way, or other public
properties. Owners, public or private, of any authorized facilities installed
prior to construction and/or installation of Franchisee's facilities shall have
preference as to positioning and location of their facilities, subject to the
authority of the County Road Engineer to direct position and location of all
facilities in the right-of-way.
Section 3. Right-of-Way Use Permit Required for All Work in Right-of-Way.
3.1 No work within county road right-of-way shall be commenced until a right-of-way
use permit has been issued by the County pursuant to Title 13 SCC for a site-specific
location or installation, including, but not limited to, relocations. In addition
to the terms and conditions of this franchise, all work shall be performed in
accordance with the current County standards, the approved plans and specifications,
and the terms and conditions of the right-of-way use permit and other permits
and approvals under Title 13 SCC necessary to accomplish the work or otherwise
applicable (e.g., lane closure or road detour permits). The Franchisee shall
remain solely responsible for compliance with all applicable laws, regulations,
codes, and standard plans and specifications in the design and construction
of Franchisee's facilities.
3.2 In addition to any criteria set forth in Title 13 SCC, the EDDS, and the
County's utility accommodation policies, the County Engineer shall apply the
following criteria in reviewing proposed utility routes and in the issuance,
conditioning, or denial of a right-of-way use permit:
A. the capacity of the public rights-of-way to accommodate the Franchisee's
proposed facilities;
B. the capacity of the public rights-of-way to accommodate additional utility,
cable, telecommunications, or other public facilities if the right-of-way
use permit is granted;
C. the damage or disruption, if any, to public or private facilities, improvements,
service, travel, or landscaping if the right-of-way use permit is granted;
D. the public interest in minimizing the cost and disruption of construction
within the public rights-of-way, including, but not limited to, coordination
with future utility installation or county improvement projects;
E. recent construction and/or improvements to the right-of-way and/or proposed
construction and/or improvements to the right-of-way which is proposed for
location of facilities;
F. the availability of alternate routes, locations, and/or methods of construction
or installation for the proposed facilities, including, but not limited to,
whether other routes are preferred; and
G. whether the Franchisee has received all requisite licenses, certificates,
and authorizations from applicable federal, state, and local agencies with
jurisdiction over the activities proposed by the Franchisee.
3.3 During any period of relocation, construction or maintenance, all work
performed by the Franchisee or its contractors shall be accomplished in a safe
and workmanlike manner, so as to minimize interference with the free passage
of traffic and the free use of adjoining property, whether public or private.
The Franchisee shall at all times post and maintain proper barricades and comply
with all applicable safety regulations during such period of construction as
required by County code, the EDDS, or the laws of the State of Washington, including,
but not limited to, RCW 39.04.180 for the construction of trench safety systems.
3.4 Before any work which may affect any existing monuments or markers of any
nature relating to subdivisions, plats, roads, or other surveys is performed
under this franchise, Franchisee shall reference all such monuments and markers.
Reference points shall be so located that they will not be disturbed during
Franchisee's operations under this franchise. The method of referencing monuments
or other points to be referenced shall be approved by the County Engineer. The
replacement of all such monuments or markers disturbed during construction shall
be made as expeditiously as conditions permit, and as directed by the County
Engineer, to federal, state, and local standards. The cost of monuments or markers
lost, destroyed, or disturbed, and the expense of replacement of approved monuments
shall be borne by Franchisee. A complete set of reference notes for monument
and other ties shall be filed with the County.
3.5 If the Franchisee shall at any time plan to make excavations in any area
covered by this franchise, the Franchisee shall, upon receipt of a written request
to do so, provide an opportunity to share such excavation and coordinate utility
locations or right-of-way improvements with the County or other franchised entities,
PROVIDED THAT:
A. such joint use shall not unreasonably delay the work of the party
causing the excavation to be made;
B. such joint use shall be arranged and accomplished on terms and conditions
satisfactory to the parties; and
C. the parties may deny such request for safety reasons.
Section 4. Emergency Work - Permit Waiver.
In the event of any emergency in which any of the Franchisee's facilities located
in, above or under any right-of-way breaks, becomes damaged, or if the Franchisee's
construction area is otherwise in such a condition as to immediately endanger
the property, life, health or safety of any individual, the Franchisee shall
immediately take such measures as are necessary to repair its facilities, to
cure or remedy the dangerous conditions for the protection of property, life,
health or safety of individuals without first applying for and obtaining a permit
as required by County code and this franchise. However, this shall not relieve
the Franchisee from the requirement of obtaining any permits necessary for this
purpose, and the Franchisee shall apply for all such permits not later than
the next business day.
Section 5. Compliance with Applicable Laws.
5.1 Franchisee shall comply with all federal, state and local laws, rules and
regulations applicable to any work, facility or operation of the Franchisee
relating to County roads or rights-of-way during the period of this franchise.
Federal laws and regulations specific to cable systems shall control over inconsistent
provisions of County code.
5.2 All work performed by the Franchisee within the public right-of-way and
all of Franchisee's facilities located within the public right-of-way shall
comply with the comprehensive plan, zoning code and development regulations
of the County. Franchisee's facilities may require additional project permits
and approvals under County land use codes and development regulations.
5.3 All work shall be performed by the Franchisee in a manner to avoid or minimize
impacts on critical areas contained within the County right-of-way. Prior to
commencing any work in a critical area as defined by chapter 32.10 SCC, the
Franchisee shall comply with all requirements of chapter 32.10 SCC and any other
applicable title of the County code and shall obtain any and all necessary permits
and approvals required. The granting of this franchise shall in no way relieve
the Franchisee from its responsibility for avoiding "take" of any threatened
or endangered species as defined by the Endangered Species Act of 1973, 16 USC
§ 1531, et seq., as amended, in the performance of any work authorized by this
franchise and any right-of-way use permits.
5.4 In addition to all other conditions, the Franchisee shall ensure:
A. That the safety, functioning, and appearance of the property and the convenience
and safety of other persons not adversely affected by the installation or
construction of facilities necessary for a cable system;
B. That the cost of the installation, construction, operation, or removal
of such facilities be borne by the franchisee or subscriber, or a combination
of both;
C. That the owner of the property be justly compensation by the cable operator
for any damages caused by the installation, construction, operation, or removal
of such facilities by the cable operator; and
D. That access to cable service is not denied to any group of potential residential
cable subscribers because of the income of the residents of the local area
in which such group resides.
Section 6. Restoration of Right-of-Way.
6.1 The Franchisee shall, after any excavation, installation, construction,
relocation, maintenance, repair, abandonment approved under Section 12 herein,
or removal of its facilities within the right-of-way, restore the surface of
the right-of-way to at least the same condition the property was in immediately
prior to any such excavation, installation, construction, relocation, maintenance,
repair, abandonment, or removal and comply with all restoration conditions of
applicable permits or approvals.
6.2 The County Engineer shall have final approval to determine that the condition
of such roads and public places after restoration meets the requirements. The
Franchisee agrees to promptly complete all restoration work and to promptly
repair any damage caused by such work to the right-of-way or other affected
areas at its sole cost and expense.
Section 7. Maps and Records of Facility Location.
After construction is complete, and as a condition of this franchise, the Franchisee
shall provide to the County upon request and at no cost, a copy of all as-built
plans, maps and records revealing the final location and condition of its facilities
within the public rights-of-way and public places.
Section 8. Relocation of Facilities.
8.1 The Franchisee agrees and covenants at its sole cost and expense, to protect,
support, temporarily disconnect, relocate, or remove from any right-of-way any
of its facilities when so required by the County by reason of traffic conditions,
public safety, dedications of new rights-of-way and the establishment and improvement
thereof, widening and improvement of existing rights-of-way, right-of-way vacations,
freeway construction, change or establishment of road grade, or the construction
of any public improvement or structure by any governmental agency acting in
a governmental capacity; PROVIDED that the Franchisee shall generally have the
privilege to temporarily bypass, in the authorized portion of the same right-of-way
upon approval by the County Engineer, any facilities required to be temporarily
disconnected or removed. This section applies to all of Franchisee's facilities
wheresoever situated within the public right-of-way, regardless of whether the
Franchisee's facilities were previously located therein through an easement
or other property interest prior to the property becoming public road right-of-way.
8.2 Upon the request of the County and in order to facilitate County right-of-way
improvements, the Franchisee agrees to locate, at its sole cost and expense,
and, if reasonably determined necessary by the County, at its sole cost and
expense, to excavate and expose portions of its facilities for inspection so
that the location of the facilities may be taken into account in the improvement
design; PROVIDED, that Franchisee shall not be required to excavate and expose
its facilities for inspection unless the Franchisee's as-built plans and maps
of its facilities submitted pursuant to Section 7 of this franchise are reasonably
determined by the County Engineer to be inadequate for purposes of evaluating
improvements. The decision to relocate Franchisee's facilities in order to accommodate
road improvements shall be made by the County Engineer upon review of the location
and construction of the Franchisee's facilities. Where additional costs accrue
to the County during maintenance, operation, or improvement of public facilities
related to avoidance of damage or accommodation of the Franchisee's facilities,
Franchisee agrees to pay the County the full amount of additional costs, if
any, resulting from the Franchisee's facilities as identified by the County.
8.3 Any condition or requirement imposed by the County upon any person or entity
(including, without limitation, any condition or requirement imposed pursuant
to any contract or in conjunction with approvals for permits for zoning, land
use, construction or development) which reasonably necessitates the relocation
of the Franchisee's facilities within the franchise area shall be a required
relocation for purposes of subsections 8.1 and 8.2 above.
8.4 If the County determines that a project necessitates the relocation of
the Franchisee's then existing facilities, the County shall:
A. At least ninety (90) days prior to the commencement of such improvement
project, provide the Franchisee with written notice requiring such relocation;
PROVIDED, that in the event of an emergency posing a threat to public
safety, health or welfare, in the event of an emergency beyond the control
of the County and which will result in adverse financial consequences
to the County, or where the Franchisee's facilities could not reasonably
have been located or anticipated to require relocation, the County shall
give the Franchisee written notice as soon as practicable; and
B. Provide the Franchisee with copies of pertinent portions of the plans
and specifications for such improvement project and a proposed location
for the Franchisee's facilities so that the Franchisee may relocate its
facilities in other County rights-of-way in order to accommodate such
improvement project.
C. After receipt of such notice and such plans and specifications, the
Franchisee shall complete relocation of its facilities at least ten (10)
days prior to commencement of the County's project at no charge or expense
to the County. Relocation shall be accomplished in such a manner as to
accommodate the County's project. In the event of an emergency, the Franchisee
shall relocate its facilities within the time period specified by the
County Engineer.
8.5 The Franchisee may, after receipt of written notice requesting a relocation
of its facilities, submit to the County written alternatives to such relocation.
The County shall evaluate such alternatives and advise the Franchisee in writing
if one or more of the alternatives is suitable to accommodate the work, which
would otherwise necessitate relocation of the facilities. If so requested by
the County, the Franchisee shall submit additional information to assist the
County in making such evaluation. The County shall give each alternative proposed
by the Franchisee full and fair consideration. In the event the County ultimately
determines that there is no other reasonable or feasible alternative, the Franchisee
shall relocate its facilities as otherwise provided in this Section.
8.6 The provisions of this Section shall in no manner preclude or restrict
the Franchisee from making any arrangements it may deem appropriate when responding
to a request for relocation of its facilities by any person or entity other
than the County, where the facilities to be constructed by said person or entity
are not or will not become County-owned, operated or maintained facilities,
provided that such arrangements do not unduly delay any County construction
projects.
8.7 Franchisee shall be responsible for timely relocation of its facilities
and coordination of relocation with the County or the Contractor for the project.
The Franchisee shall be fully responsible for the costs of any delays to County
projects resulting from relocations of the Franchisee's facilities. Franchisee
shall hold harmless, indemnify and defend the County against all claims, lawsuits,
or damages caused in whole or in part by location or relocation of Franchisee's
facilities, including, but not limited to, problems, accommodations and delays,
and including negligent or intentional acts or omissions of the Franchisee,
its agents, officers and employees, as more fully set forth in Section 14 of
this franchise ordinance.
Section 9. Undergrounding of Facilities.
9.1 In any area of the County in which there are no aerial facilities, or in
any area in which telephone, electric power wires or other cables have been
placed underground, the Franchisee shall not be permitted to erect poles or
to run or suspend wires, cables or other facilities thereon, but shall lay such
wires, cables or other facilities underground in the manner required by the
County. The Franchisee acknowledges and agrees that, even if the County does
not require the undergrounding of its facilities at the time of right-of-way
use permit application, the County may, at any time in the future, require the
conversion of the Franchisee's aerial facilities to underground installation
at the Franchisee's expense.
9.2 Whenever the County may require the undergrounding of the aerial facilities
in any area of the County, the Franchisee shall underground its aerial facilities
in the manner specified by the County, concurrently with and in the area of
the other affected facilities. Where other facilities are present or proposed
and involved in the undergrounding project, the Franchisee shall only be required
to pay its fair share of common costs borne by all facilities, in addition to
the costs specifically attributable to the undergrounding of the Franchisee's
own facilities. "Common costs" shall include necessary costs not specifically
attributable to the installation or undergrounding of any particular facility,
such as costs for common trenching and utility vaults. "Fair share" shall be
determined for a project on the basis of the number and size of the Franchisee's
facilities being installed or undergrounded in comparison to the total number
and size of all other utility facilities being installed or undergrounded.
9.3 Aerial facilities shall be permitted in areas of scenic beauty when other
utility locations are not available, are not technically feasible, result in
adverse environmental consequences, are unreasonably costly, or are less desirable
from the standpoint of visual quality.
Section 10. Maintenance of Facilities.
10.1 The Franchisee shall maintain its facilities in accordance with accepted
standards of practice.
10.2 The Franchisee shall take necessary steps to maintain a reasonably clear
area around all objects permitted and installed within county road right-of-way.
A minimum of five (5) feet of clearance will be maintained around each object
so as to provide clear visibility for County operations and maintenance. If
the Franchisee intends to use chemical sprays to control or kill weeds and brush,
the County must grant prior approval at least annually. The County may limit
or restrict the types, amounts, and timing of applications if a significant
negative impact on the aesthetics of the area is anticipated, provided such
limitations or restrictions are not in conflict with State law governing utility
right-of-way maintenance.
10.3 The Franchisee shall comply with Title 7.53 SCC, Water Pollution Control.
In addition, Franchisee agrees that it will not cause nor permit in any manner,
including negligent or intentional acts or omissions, release of any hazardous
substance, waste, or pollutant or contaminant into or upon any county road or
right-of-way contrary to any state or federal law or local regulation with respect
thereto. Franchisee shall notify the Washington State Department of Ecology
and Snohomish County in writing immediately upon any such release. Franchisee
shall indemnify, hold harmless, defend and covenant not to sue the County, from
and against any and all claims, actions or suits in equity or at law and any
judgments, damages, awards, penalties or fines, including reasonable attorneys'
fees and costs incurred in the defense thereof, arising out of the release or
spill of any such hazardous materials, dangerous waste, or pollutant within
the County right-of-way or on private property. Franchisee shall be responsible
for completely cleaning up and remediating, as required by any government agency,
any and all hazardous materials, dangerous waste or pollutants released or spilled
within the County right-of-way or on private property. The County shall be entitled
to indemnification by Franchisee for all costs incurred by it as the result
of any release or spill of such materials by Franchisee, its agents, officials,
officers and employees.
10.4 Upon any release or spill of any such substance mentioned herein, the
County may give notice of intent to immediately terminate this franchise and,
where it deems necessary to protect the public health, safety and welfare, the
County may immediately take whatever steps it deems necessary and advisable
to contain, clean up or remediate the release or spill. The County shall be
entitled to repayment from the Franchisee of any costs or expenses incurred
in responding to such a release or spill.
Section 11. Dangerous Conditions, Authority for County to Abate.
11.1 Whenever the Franchisee's excavation, construction, installation, relocation,
maintenance, repair, abandonment, or removal of facilities authorized by this
franchise has caused or contributed to a condition that substantially impairs,
in the opinion of the County Engineer, the lateral support of the adjoining
road or public place, or endangers the public, an adjoining public place, road
facilities or County property, the County Engineer may direct the Franchisee,
at the Franchisee's own expense, to take actions to protect the public, adjacent
public places, County property or road facilities, and such action may include
compliance within a prescribed time.
11.2 In the event that the Franchisee fails or refuses to promptly take the
actions directed by the County, or fails to fully comply with such directions,
or if emergency conditions exist which require immediate action, the County
may enter upon the property and take such actions as are necessary to protect
the public, the adjacent roads, or road facilities, or to maintain the lateral
support thereof, or actions necessary to ensure the public safety, and the Franchisee
shall be liable to the County for the costs thereof.
Section 12. Abandonment of the Franchisee's Facilities.
12.1 No facilities located in the right-of-way by the Franchisee may be abandoned
in place by the Franchisee without the express agreement and written consent
of the County. Any plan for abandonment or removal of the Franchisee's facilities
must be first approved by the County Engineer, and all necessary permits must
be obtained prior to such work.
12.2 In the event Franchisee decides to discontinue using and abandons any
of its facilities, or the County reasonably determines, after making good faith
attempts to contact the Franchisee to ascertain the status of the facilities,
that Franchisee has discontinued using and abandoned any facilities, or that
the facilities should be abandoned, or both parties have negotiated in good
faith but no franchise has been obtained therefor upon expiration of this franchise,
or within one hundred eighty (180) days after any termination of this
franchise, Franchisee shall, at its sole cost and as directed by the County,
purge its facilities of any product and hazardous or other additive substances
rendering them safe in accordance with applicable law or standards deemed appropriate
by the County. Abandoning facilities in place shall not relieve the Franchisee
of the obligation and/or costs to remove or alter such facilities in the event
the County determines and requests Franchisee, in writing, to remove or alter
such facilities as is necessary for the installation, operation or maintenance
of any County road or related utilities or facilities, including, but not limited
to, drainage facilities, or for the health and safety of the public, in which
case the Franchisee shall perform such work in a timely manner at no cost to
the County. In the event Franchisee does not perform such work within a reasonable
time following written notice from the County, the County may do, order, have
done, any and all work on such abandoned facilities, and the Franchisee, upon
demand, shall pay to the County all costs of such work. Franchisee shall be
responsible for any environmental review required for the abandonment of any
facility and payment of any costs of such environmental review.
Section 13. Fees, Compensation for Use of Rights-of-Way, and Taxes.
13.1 The Franchisee shall be subject to all permit fees associated with activities
undertaken through the authority granted in this franchise ordinance or under
the laws of the County. Where the County incurs costs and expenses for review,
inspection or supervision of activities undertaken through the authority granted
in this franchise or any ordinances relating to the subject for which a permit
fee is not established, the Franchisee shall pay the reasonable actual costs
and expenses directly to the County.
13.2 General Compensation. Because the public rights-of-way to be used
by the Franchisee in the provision of cable services within the areas of the
county roads covered by this franchise are valuable public properties, acquired
and maintained by the County at great expense to its taxpayers, and because
the grant to the Franchisee of the use of the public rights-of-way is a valuable
property right without which Franchisee would be required to invest substantial
capital in right-of-way costs and acquisitions, the Franchisee agrees to pay
to the County, as general compensation during each year of this Franchise, a
franchise fee consisting of five-percent (5%) of Franchisee's gross revenue,
as defined in this Franchise and/or County Code, for services rendered to customers
within the areas of the county roads covered by their franchise (the "Franchise
area").
13.3 Payment. Franchisee shall pay the County five- percent (5%) of
the gross revenue received annually by Franchisee from its customers within
the Franchise area for services to customers. Payments to the County shall be
made by the forty-fifth (45th) day from the first day of January
of each year the Franchisee is in operation and accompanied by an annual report.
It is understood by the Franchisee, and it is binding on the successor(s) in
interest of the Franchisee, that the Snohomish County Council has the authority
to modify, by ordinance, the five percent (5%) of gross revenue fee at any time
that the County Council chooses to do so during the life of this franchise.
13.4 Definition of "Gross Revenue." "Gross revenue" means any and all
gross revenues the Franchisee or its affiliates derives directly or indirectly
from the operation of the cable system to provide cable services, including
revenue from sales, rental, or installation of equipment, from advertising revenues,
from subscribers, and from all carriage revenues received from unaffiliated
cable service programming providers. Gross revenue shall not include amounts
which cannot be collected and are identified as bad debt: provided, that amounts
previously identified as bad debt which are eventually collected shall be reported
for the period in which collection occurs.
13.5 Auditing and Financial Records. The County, or its authorized agents,
shall have the right to inspect the books and records of the Franchisee at reasonable
times for the purpose of ascertaining accurately the actual gross receipts of
the Franchisee per annum. All financial books and records of the Franchisee
shall be retained in their original form for this purpose, for a minimum of
six (6) years from the date of such records for each year the franchise is in
effect in accordance with the provisions of chapter 40.14 RCW as they apply
to any agency of the state of Washington. Franchisee 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 the Franchisee's reports and records.
13.6 Independent Audit. 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 the Franchisee in order to verify the accuracy of gross revenue fees paid
to the County. Franchisee shall cooperate fully in the conduct of such audit.
In the event it is determined through such audit that Franchisee has paid franchise
fees in a lesser amount of more than 2% than was due the County, then Franchisee
shall reimburse the County for the entire cost of the audit within thirty (30)
days of the completion and acceptance of the audit by the County.
13.7 Requests for Records. 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 this
Franchise.
13.8 The County hereby reserves the right to fix a fair, competitively neutral,
non-discriminatory, and reasonable compensation to be paid for the use of public
rights-of-way pursuant to this franchise. Any regulatory fees and/or compensation
paid for use of the public right-of-way are separate from, and additional to,
any federal, state and local taxes that may be levied, imposed, or due from
any cable operator or telecommunications carrier or provider, its customers
or subscribers, or on account of the lease, sale, delivery, right-of-use, or
transmission of telecommunications services, and shall not be considered a tax.
13.9 The County's reservation of the right to require authorization to use
public rights-of-way and to obtain fair and reasonable compensation for use
of public right-of-way from telecommunications carriers (including telephone
businesses), providers of cable, video programming, or other services utilizing
facilities placed within public rights-of-way, applies regardless of whether
those providers own, lease, license, or otherwise obtain access to facilities
through arrangements or agreements, including, but not limited to, indefeasible
right of use agreements.
13.10 The Franchisee shall pay applicable fees as specified in Chapter 13.110
SCC to cover the County's costs in drafting and processing this franchise and
all work related thereto. The fee shall be paid at the time of acceptance of
this franchise as set forth in Section 33 and this franchise shall not become
effective until payment of the fee. The Franchisee shall further be subject
to all permit fees associated with activities undertaken through the authority
granted in this franchise or under the laws of the County. Where the County
incurs costs and expenses for review, inspection or supervision of activities
undertaken through the authority granted in this franchise or any ordinances
relating to the subject for which a permit fee is not established, the Franchisee
shall reimburse the County directly for any and all costs at the County's standard
rates.
13.11 In addition, the Franchisee shall reimburse the County for any and all
documented costs the County reasonably incurs in response to an emergency involving
the Franchisee's facilities. The Franchisee shall promptly reimburse the County,
upon submittal by the County of an itemized billing, for the Franchisee's proportionate
share of all actual, identified costs and expenses incurred by the County in
repairing any County facility, or altering such County facility if at the Franchisee's
request, as the result of the presence of the Franchisee's facilities in the
right-of-way. Such costs and expenses shall include, but not be limited to,
the Franchisee's proportionate share of the costs of County personnel assigned
to oversee or engage in any work in the right-of-way as a result of the presence
of the Franchisee's facilities in the right-of-way. Such costs and expenses
shall also include the Franchisee's proportionate share of County time spent
reviewing construction plans in order to either accomplish the relocation of
the Franchisee's facilities or the routing or rerouting of any utilities so
as not to interfere with the Franchisee's facilities. Any and all costs will
be billed on an actual cost basis. The billing may be on an annual basis, but
the County shall provide the Franchisee with the County's itemization of costs
at the conclusion of each project for information purposes.
13.12 The Franchisee acknowledges that it may be subject to State and local
taxes, including personal property tax. The Franchisee shall keep such tax accounts
current as a special condition of this franchise agreement.
Section 14. Hold Harmless and Indemnification.
14.1 The Franchisee shall assume the risk of, be liable for, and pay all damage,
loss, cost and expense of any party arising out of the Franchisee's use of the
right-of-way, to the extent of their negligent actions, errors, omissions, or
breach of any obligations. The Franchisee hereby releases, covenants not to
bring suit, and agrees to indemnify, defend and hold harmless the County, its
elected and appointed officials, officers, employees, agents and representatives
from any and all claims, costs, judgments, awards, or liability to any person,
including claims by the Franchisee's own employees for which the Franchisee
might otherwise be immune under Title 51 RCW, for injury or death of any person
or damage to property caused by or arising out of the negligent acts or omissions
of the Franchisee, its agents, servants, officers or employees in the performance
of this franchise, and any rights granted hereunder.
14.2 The Franchisee shall hold harmless from and indemnify the County, its
elected and appointed officials, officers, employees, and volunteers, against
all claims, demands, losses, suits, actions, costs, counsel fees, litigation
costs, expenses, damages, judgments, or decrees by reason of damage to any property
or business and/or any death, injury or disability to or of any person or party
of any nature arising out of or suffered, directly or indirectly, in whole or
in part, from the actions, errors, omissions, or breach of any common law, statutory,
regulatory or contractual obligations in connection with the activities of the
Franchisee, its sub-contractors, assigns, agents, contractors, or employees,
under this franchise, any permit under County code, or in connection with the
use of the right-of-way; PROVIDED that nothing herein shall require the Franchisee
to hold harmless from and indemnify the County, its elected and appointed officials,
officers, employees, and volunteers, against claims, demands, or suits based
solely upon the negligence of the County, its elected and appointed officials,
officers, employees, and volunteers; and PROVIDED FURTHER, that if the claims,
demands, or suits are caused by or result from the concurrent negligence of
(a) the County, its elected and appointed officials, officers, employees, and
volunteers and (b) the Franchisee, its sub-contractors, assigns, agents, contractors,
or employees, and involve those actions covered by RCW 4.24.115, this indemnity
provision, with respect to liability for damages arising out of bodily injury
to persons or damage to property based upon such concurrent negligence, shall
be valid and enforceable only to the extent of the Franchisee's negligence or
the negligence of their sub-contractors, assigns, agents, contractors, or employees,
except as limited below. This indemnification provision constitutes the Franchisee's
waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification.
This waiver has been mutually negotiated by the parties.
14.3 The Franchisee further agrees to process and defend at its own expense
all claims, demands, or suits at law or equity arising in whole or in part from
the actions, errors, omissions, or breach of any obligations of the Franchisee,
its sub-contractors, assigns, agents, contractors, or employees, arising out
of or in connection with any activities related to this franchise or the Franchisee's
use of the right-of-way. The Franchisee's duty to assume the defense and to
pay all expenses thereof shall apply to all claims or allegations of negligence
where any duty to provide indemnification in whole or in part potentially applies,
whether or not the injuries or damages are ultimately found to be due to the
negligence of the Franchisee arising out of the franchise or any use of the
right-of-way.
14.4 In the event that the Franchisee refuses the tender of defense in any
suit or any claim, said tender having been made pursuant to the indemnification
provision contained herein, and said refusal is subsequently determined by a
court having jurisdiction (or such other tribunal that the parties shall agree
to decide the matter), to have been a wrongful refusal on the part of the Franchisee,
then the Franchisee shall pay all of the County's costs for defense of the action,
including all expert witness fees, costs, and reasonable attorney's fees, including
costs and fees incurred in recovering under this indemnification provision.
14.5 Inspection or acceptance by the County of any work performed by the Franchisee
at the time of completion of construction shall not be grounds for avoidance
by the Franchisee of any of its obligations under this Section.
Section 15. Limitation of County Liability.
Administration of this franchise shall not be construed to create the basis
for any liability on the part of the County, its elected and appointed officials,
officers, employees, and agents for any injury or damage from the failure of
the Franchisee to comply with the provisions of this franchise; by reason of
any plan, schedule or specification review, inspection, notice and order, permission,
or other approval or consent by the County; for any action or inaction thereof
authorized or done in connection with the implementation or enforcement of this
franchise by the County; or for the accuracy of plans submitted to the County.
Section 16. Insurance.
16.1 The Franchisee shall procure and maintain for the duration of the franchise,
insurance against claims for injuries to persons or damages to property which
may arise from or in connection with the exercise of the rights, privileges
and authority granted by this franchise and right-of-way use permits to the
Franchisee, its agents, representatives or employees. The Franchisee shall provide
a certificate of insurance to the County for its inspection prior to the adoption
of this franchise ordinance, and such insurance shall include:
A. Automobile Liability insurance with limits no less than $1,000,000
Combined Single Limit per occurrence for bodily injury and property damage;
and
B. Commercial General Liability insurance, written on an occurrence basis
with limits no less than $1,000,000 combined single limit per occurrence
and $2,000,000 aggregate for personal injury, bodily injury and property
damage. Coverage shall include, but not be limited to: blanket contractual;
products and completed operations; broad form property damage; explosion,
collapse and underground (XCU); and employer's liability.
16.2 The insurance policies obtained by the Franchisee shall name the County
(its elected and appointed officers, officials, employees, agents, and volunteers)
as an additional insured with regard to activities performed by or on behalf
of the Franchisee. The coverage shall contain no special limitations on the
scope of protection afforded to the County, its elected and appointed officers,
officials, employees, agents, or volunteers. In addition, the insurance policy
shall contain a clause stating that coverage shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to
the limits of the insurer's liability. The Franchisee's insurance shall be primary
insurance as respects the County, its elected and appointed officers, officials,
employees, agents and volunteers. Any insurance maintained by the County, its
elected and appointed officials, officers, employees, agents or volunteers shall
be excess of the Franchisee's insurance and shall not contribute with it. The
insurance policy or policies required by this clause shall be endorsed to state
that coverage shall not be suspended, voided, canceled by either party, reduced
in coverage or in limits except after thirty (30) days prior written notice
by certified mail, return receipt requested, has been given to the County.
16.3 The complete policy with all endorsements shall be provided to the County
upon request. Any deductibles or self-insured retentions must be declared to
and approved by the County. Payment of deductible or self-insured retention
shall be the sole responsibility of the Franchisee. Proof of all insurance shall
be in a form acceptable to the County Finance Director. Any insurance provider
shall be authorized to do business in Washington. If the Franchisee is self-insured,
Franchisee shall provide such information as required by the County Finance
Director sufficient to demonstrate its ability to meet the requirements of this
Section. All insurance documentation shall be submitted and reviewed by the
County Executive prior to final execution of the franchise.
16.4 Any failure to comply with the reporting provisions of the policies required
herein shall not affect coverage provided to the County, its elected and appointed
officials, officers, employees, agents or volunteers.
Section 17. Bond or Performance Security.
Before undertaking any of the work, installation, improvements, construction,
repair, relocation or maintenance authorized by this franchise and the separate
right-of-way use permit under Section 3 the Franchisee shall, upon the request
of the County, furnish a bond executed by the Franchisee and a corporate surety
authorized to do a surety business in the State of Washington, in a sum to be
set and approved by the County Engineer as sufficient to ensure performance
of the Franchisee's obligations under this franchise generally and under any
specific right-of-way use permits or approvals. The bond shall be conditioned
so that the Franchisee shall observe all the covenants, terms and conditions
and faithfully perform all of the obligations of this franchise and any right-of-way
use permits or approvals, and to correct or replace any defective work or materials
discovered in the replacement of the County's roads or property within a period
of two (2) years from the date of the replacement and acceptance of such repaired
roads, facilities, or property by the County. The County may from time to time
review the amount of surety and determine an appropriate level based upon Franchisee's
facilities and the Franchisee's performance of the covenants, terms, conditions
and obligations under this franchise and any right-of-way use permits or approvals.
Section 18. Modification.
The County hereby reserves the right to alter, amend or modify the terms and
conditions of this franchise upon written agreement of both parties to such
alteration, amendment or modification. Nothing in this Section shall affect
the right of the County to modify the terms and conditions of this franchise
in accordance with any other Section of this franchise, including, but not limited
to, sections 1, 26, and 27.
Section 19. Annexation.
If any road or right-of-way covered by this franchise is incorporated into
the limits of any city or town, this franchise shall terminate as to any road
or right-of-way within the corporate limits of such city or town; but this franchise
shall continue as to County roads and rights-of-way not incorporated into a
city or town.
Section 20. Vacation.
20.1 If the County vacates all or a portion of any County road or right-of-way
which is subject to this franchise, the County Council may, at its option and
by giving thirty (30) days' written notice to the Franchisee, terminate this
franchise with reference to any County road or right-of-way so vacated, and
the County shall not be liable for any damages or loss to the Franchisee by
reason of such termination.
20.2 Whenever a county road or right-of-way or any portion thereof is vacated
upon a finding that it is not useful and the public will be benefited by the
vacation, the County may retain an easement with respect to the vacated land
for the construction, repair and maintenance of public utilities and services
which at the time of the vacation are specifically authorized or are physically
located on a portion of the land being vacated, but only in accordance with
the provisions of RCW 36.87.140 as now existing or hereafter amended. It shall
be the responsibility of the Franchisee to request that the County Council specifically
include a provision retaining an easement with respect to any proposed Council
action on a particular vacation. The County shall not be liable for any damages
or loss to the Franchisee by reason of any such vacation.
Section 21. Assignment.
This franchise authorizing use of public rights-of-way may not be leased, sold,
transferred, assigned, disposed of, or subject to a change of control, in whole
or in part, in any manner without the prior written consent of the County Council.
In the case of transfer or assignment as security by mortgage or other security
instrument in whole or in part to secure indebtedness, consent shall not be
required unless and until the secured party elects to realize upon the collateral.
The Franchisee shall provide prompt, written notice to the County of any such
assignment.
Section 22. Termination, Revocation and Forfeiture.
22.1 If the Franchisee defaults on any term or condition of this franchise,
the County Council may terminate this franchise as provided in Title 13 SCC.
Upon termination for any cause, all rights of the Franchisee granted hereunder
or under any right-of-way use permit shall cease, and the Franchisee shall immediately
commence to remove its facilities from the roads and rights-of-way.
22.2 If the Franchisee willfully violates or fails to comply with any of the
provisions of this franchise, or through willful misconduct or gross negligence
fails to heed or comply with any notice given the Franchisee by the County under
the provisions of this franchise, then the Franchisee shall, at the election
of the Snohomish County Council, forfeit all rights conferred hereunder and
this franchise may be revoked or annulled by the Council after a hearing held
upon notice to the Franchisee.
22.3 In the event that the use of all or any part of the Franchisee's facilities
is discontinued for any reason, including, but not limited to, discontinuance,
obsolescence, or abandonment of the facility, or the abandonment, termination,
expiration, revocation, or forfeiture of this franchise, the Franchisee is solely
responsible for the removal and proper disposal of all facilities. The Franchisee
is not entitled to abandon any facilities in place without the County's prior
written consent in accordance with Section 12 of this franchise. The Franchisee
shall restore the county roads and rights-of-way from which any facilities have
been removed in accordance with Section 6 of this franchise.
Section 23. Remedies to Enforce Compliance.
The County may elect, in lieu of the above and without any prejudice to any
of its other legal rights and remedies, to obtain an order from the Superior
Court or other court, tribunal, or agency having competent jurisdiction compelling
the Franchisee to comply with the provisions of this franchise and to recover
damages and costs incurred by the County by reason of the Franchisee's failure
to comply. In addition to any other remedy provided herein, the County reserves
the right to pursue any remedy to compel or force the Franchisee and/or its
successors and assigns to comply with the terms hereof, and the pursuit of any
right or remedy by the County shall not prevent the County from thereafter declaring
a forfeiture or revocation for breach of the conditions herein.
Section 24. Nonwaiver of Rights or Remedies.
Failure of the County to exercise any rights or remedies under this franchise
shall not be a waiver of any obligation by the County and shall not prevent
the County from pursuing that right at any future time.
Section 25. Records.
The Franchisee shall maintain adequate records to document obligations performed
under this franchise. The County shall have the right to review the Franchisee's
records, at reasonable times, with regard to the subject matter of this franchise,
upon reasonable notice. The right to review records shall last for six (6) years
from the termination date of this franchise, including any extensions or renewals.
In addition to the maps and records of facility location under Section 7, the
Franchisee shall provide the County with copies of records of construction,
maintenance, operation, inspections, or regulatory compliance for all facilities
subject to this franchise as deemed necessary by the County to manage the county
roads, rights-of-way, or other property, or to protect the public health, safety,
and welfare. Nothing in this Section 25 shall be construed to require Franchisee
to violate state or federal law concerning subscriber privacy, nor shall this
Section be construed to require Franchisee to disclose proprietary or confidential
information without adequate safeguards for its confidential or proprietary
nature.
Section 26. County Ordinances and Regulations - Reservation of
Police Power.
Nothing in this franchise shall be deemed to restrict the County's ability
to adopt and enforce all necessary and appropriate ordinances regulating the
performance of the conditions of this franchise, including, but not limited
to, any valid ordinance made in the exercise of its police powers in the interest
of public safety and for the welfare of the public. The County shall have the
authority at all times to control by appropriate regulations, including design
standards, and utility accommodation policies, the location, elevation, manner
of construction, and maintenance of any facilities of the Franchisee within
the right-of-way or affecting the right-of-way, and the Franchisee shall promptly
conform with all such regulations, unless compliance would cause the Franchisee
to violate other requirements of law. In the event of a conflict between the
regulatory provisions of this franchise and any other ordinance(s) enacted under
the County's police power authority, such other ordinance(s) shall take precedence
over the regulatory provisions set forth herein.
Section 27. Eminent Domain, Powers of the People.
This franchise is subject to the power of eminent domain and the right of the
County Council or the people acting for themselves through the initiative or
referendum to repeal, amend or modify the franchise in the interest of the public.
In any proceeding under eminent domain, the franchise itself shall have no value.
Section 28. Survival.
All of the provisions, conditions and requirements of Sections 3, Right-of-Way
Use Permit Required for All Work in Right-of-Way; 6, Restoration of Right-of-Way;
8, Relocation of Facilities; 9, Undergrounding of Facilities;
11, Dangerous Conditions, Authority for County to Abate; 12, Abandonment
of the Franchisee's Facilities 14, Hold Harmless and Indemnification;
and 25, Records; 29, Governing Law and Stipulation of Venue, of
this franchise shall be in addition to any and all other obligations and liabilities
the Franchisee may have to the County at common law, by statute, or by contract,
and shall survive the expiration, revocation, termination, or forfeiture of
the County's franchise to the Franchisee as defined in Section 1 herein, and
any renewals or extensions thereof. All of the provisions, conditions, regulations
and requirements contained in this franchise ordinance shall further be binding
upon the successors and assigns of the Franchisee and all privileges, as well
as all obligations and liabilities of the Franchisee shall inure to its successors
and assigns equally as if they were specifically mentioned wherever the Franchisee
is named herein.
Section 29. Governing Law and Stipulation of Venue.
This franchise and use of public rights-of-way shall be governed by the laws
of the State of Washington, unless preempted by federal law. The Franchisee
agrees to be bound by the laws of the State of Washington and subjected to the
jurisdiction of the Courts of the State of Washington. Any action relating to
this franchise must be brought in the Superior Court of Washington for Snohomish
County, or in the case of a federal action, the United States District Court
for the Western District of Washington at Seattle, unless an administrative
agency has primary jurisdiction.
Section 30. Severability.
If any section, sentence, clause or phrase of this franchise or its application
to any person or entity should be held to be invalid or unconstitutional by
a court of competent jurisdiction, such invalidity or unconstitutionality shall
not affect the validity or constitutionality of any other section, sentence,
clause or phrase of this franchise nor its application to any other person or
entity.
Section 31. Access Channel Capacity Designated for Public, Educational,
31.1 Definitions. "Access Channel" or "Public Educational or Government Access
(PEG) Channel" means any channel or portion of a channel utilized for programming,
whether by Franchisee or in cooperation with, by or through the County, where
any resident of the County or any non-commercial organization whose members
reside in the County may be a programmer, either without charge or in a non-profit
manner, on a non-discriminatory basis. The term "programming" as used in this
section shall include video, voice, and data transmission.
31.2 Initial Designation of Channel Capacity for Governmental Use. Within
one year of the execution of this franchise, the Franchisee shall establish
a single "government access" channel for Snohomish County local government use.
Upon establishment of this government access channel, Franchisee will inform
their subscribers in their advertising and billing notices of the availability
of this "government access" channel. On an annual basis, ninety (90) days prior
to the annual anniversary date of this franchise, Franchisee will obtain written
certification from Snohomish County whether additional PEG channels are required.
If Snohomish County certifies the need for additional PEG channels, the establishment
of any additional channel will be negotiated by mutual agreement.
31.3 Designation of Additional Channel Capacity for Public, Educational,
and/or Governmental Use (PEG). If, after approval of this franchise, the
County Council determines that there is an identified need for designation of
additional channel capacity for public, educational, and/or governmental use,
the County Council may require the Franchisee to designate such additional channel
capacity and to provide such facilities, equipment, and services as are reasonably
sufficient to meet community needs for use of the channels. The County Council
specifically reserves authority to re-open franchise negotiations for the purpose
of negotiating the number of channels and the scope of facilities, equipment,
and services to be provided by Franchisee for public, educational and governmental
use.
31.4 Arbitration of PEG Channel Capacity Designation and Access Support
or Facilities. If, after negotiations between Franchisee and the County,
the parties are unable to agree on the need to any particular form of access
channels, the number and/or the designation of access channels, and/or the amount
of facilities or equipment and services to be provided by Franchisee, the County
and Franchisee agree to submit these issues to binding arbitration. The County
shall pick one arbitrator, Franchisee shall choose second arbitrator, and these
two arbitrators will choose a third arbitrator, to compose a three-person arbitration
panel. The cost of arbitration shall be paid by the Franchisee. After hearing
evidence and reviewing documents submitted by both Franchisee and County, the
vote of a majority of the panel will be binding on both parties.
31.5 Compliance with Laws. Any designation of channel capacity for public,
educational, or governmental use shall be in accordance with applicable local,
state, and federal laws, including applicable sections of the Cable Communications
Policy Act of 1984, the Cable Television Consumer Protection and Competition
Act of 1992, the Telecommunications Act of 1996, and any future amendments.
Section 32. Notice and Emergency Contact.
Any notice or information required or permitted to be given to the parties
under this franchise agreement may be sent to the following addresses unless
otherwise specified:
SNOHOMISH COUNTY BLACK ROCK CABLE, INC.
Department of Public Works 2544 Mt. Baker Hwy.
2930 Wetmore Ave. Bellingham, WA 98226
Everett, WA 98201
Attn. Franchises & Right-of-Way Use Permits Attn. John Kehres
Phone: (425) 388-3488 Phone: (360) 734-7930
The Franchisee shall also provide the County a current emergency contact name
(or title) and phone number available 24 hours a day, seven days a week. The
Franchisee shall promptly notify the County of any change in the notice address
or emergency contact name (or title) and phone number.
Section 33. Acceptance.
Within thirty (30) days after the passage and approval of this Ordinance, this
franchise may be accepted by the Franchisee by its filing with the County Clerk
an unconditional written acceptance thereof. Failure of the Franchisee to so
accept this franchise within said period of time shall be deemed a rejection
thereof by the Franchisee, and the rights and privileges herein granted shall,
after the expiration of the thirty (30) day period, absolutely cease and terminate,
unless the time period is extended by ordinance duly passed for that purpose.
Section 34. Effective Date.
This ordinance shall take effect only upon satisfaction of the following conditions,
but not sooner than ten (10) days after signature by the County Executive (or
ten days after the ordinance is otherwise enacted): (1) the Franchisee signs
a copy of this franchise and returns it to the County Council within the time
provided in Section 33; (2) the Franchisee presents to the County acceptable
evidence of insurance and security as required in this franchise; and (3) the
Franchisee pays all applicable fees set forth in Subsection 13.10 above.
PASSED this 6th day of June, 2001.
ATTEST:
Clerk of the Council
( ) APPROVED
( ) VETOED
( ) EMERGENCY
ATTEST:
Approved as to Form Only:
Deputy Prosecuting Attorney
ACCEPTANCE:
The Provisions of this franchise are agreed to and hereby accepted. By accepting
this franchise, Black Rock Cable, Inc. covenants and agrees to perform and be
bound by each and all of the terms and conditions imposed by the Charter and
Code of the County and this franchise. In accepting such terms and conditions,
Black Rock Cable, Inc. reserves its right to contest county actions it considers
to be non-competitively neutral or discriminatory in treatment, or otherwise
contrary to federal, state or local laws, ordinances or regulations.
Dated: ______________________, 2001 BLACK ROCK CABLE, INC.
CERTIFICATION OF COMPLIANCE WITH CONDITIONS AND EFFECTIVE DATE:
I certify that I have received confirmation that: (1) the Franchisee returned
a signed copy of this franchise to the County Council within the time provided
in Section 33; (2) the Franchisee has presented to the County acceptable evidence
of insurance and security as required in Section 16 of this franchise; and (3)
the Franchisee has paid all applicable processing costs and fees set forth in
Subsection 13.10 of the franchise ordinance.
THE EFFECTIVE DATE OF THIS FRANCHISE ORDINANCE IS: __________________.
By:
Name:
Title:
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