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HomeMy WebLinkAboutO-1469 - Adds Ch. 5.68, cable communications franchises (Repealed by 2489)• t .'..J~~ NOTICE OF CITY OF MARYSVILLE ORDINANCE On the :L...t "ft..-day of ~.,1986,the City Council of the City of Marysville passed Ordinance No./1..(69 ,entitled: An Ordinance of the City of Marysville,granting a non-exclusive franchise to TCI Cablevision of Washington,Inc.,to construct,install and operate lines,wires,coaxial cable and appurtenances for originating,receiving, distributing and supplying radio,television and other cable communication service along, across and upon the public's streets,ways, alleys,and places with the City of Marysville; and repealing Ordinance 567 which granted a CATV franchise to GT&E Communications,Inc. on October 10,1966. Said ordinance consisted of the following sections: Section 1-Definitions Section 2.Purpose Section 3.Length of the Franchise Section 4.Terms of the Franchise Section 5.Service Area Section 6.Rates Section 7.Franchise Fees Section 8.Access Equipment Section 9.Franchising Costs Section 10.System Capability Section 11-Access Channels Section 12.Institutional Network Section 13.Other Interactive Services Section 14.Public Municipal Buildings Section 15.Emergency Override Section 16.Emergency Power Section 17.Safety Requirements Section 18. Section 19. Section 20. Section 21. Section 22. Section 23. Section 24. Section 25. Section 26. Section 27. Section 28. Section 29. Section 30. Section 31. Section 32. Section 33. Section 34. Section 35. Section 36. Section 37. Section 38. Section 39. Section 40. Section 41. Construction Inspection Upgrade Commencement Upgrade Construction Penalties Performance Tests Record Inspection Periodic Reports Customer Service Franchise Discussions Modification of Franchise Obligations Conformance to FCC Regulations Renewal Before Expiration Continuity of Service Removal &Abandonment of Property of Franchisee Building Moving Tree Trimming Indemnity &Hold Harmless -Waiver of Damages Insurance Bonds and Other Security Severability Entire Agreement Contractual Relationship Applicable Law;Venue Acceptance Repealer The full text of said ordinance will be mailed,without charge, to any person who requests the same from the City Clerk. ,..' ,"....1 •• '.2-.ecoK.Htb., 3-/rWC pfle-- CIT Y 0 F MAR Y S V ILL E Marysville,Washington ORDINANCE NO.''I''1 AN ORDINANCE OF THE CITY'OF MARYSVILLE ESTABLISHING THE CONDITIONS,REQUIREMENTS,OBLIGATIONS AND DUTIES FOR CONSTRUCTION,MAINTENANCE AND OPERATION OF A CABLE COMMUNICATION AND DISTRIBUTION SYSTEM WITHIN THE CITY, AND PROVIDING FOR THE GRANTING OF A NON-EXCLUSIVE RIGHT,PRIVILEGE,AND AUTHORITY TO A FRANCHISEE TO CONSTRUCT,OPERATE,MAINTAIN AND USE POLES, CONDUITS, CABLES, WIRES AND OTHER INCIDENTAL EQUIPMENT IN,UPON, UNDER,OVER,ALONG AND ACROSS STREETS,AVENUES, BOULEVARDS,ALLEYS AND OTHER PUBLIC PLACES OF THE CITY; AND ENACTING A NEW CHAPTER 5.68 OF THE MARYSVILLE MUNICIPAL CODE The City Council of the City of Marysville do ordain as follows: A new Chapter 5.68 of the Marysville Municipal Code, entitled "Cable Communications Franchises,"is hereby enacted to provide as follows: Section 1.Definitions. (a)"Affiliate"means an entity which owns or controls, is owned or controlled by ,or is under common ownership with franchisee. (b)"Cable Act"means the Cable Communications Policy Act of 1984 and any subsequent amendments. (c)"Cable service"means (i)the ·one-way transmission to subscriber of video programming or other programming service,and (ii)subscriber interaction,if any,which -. such video programmingisrequiredfortheselectionof or other programming service. (d)"City"means the City of Marysville,a municipal corporation of the State of Washington. (e)"Commun i t y Antenna Television System","cable tele- vision .system"or "system",means a.system'of antennas, cables,wires,lines,towers,transmission lines,equipment or facilities,designed and constructed for the purpose of 'producing,receiving,transmitting,amplifying, scrambling and distributing audio,video and other forms of ~lectronic or electrical signals,located i~whole or in part in the City. the present.governing body of the board constituting the legislative (f )"Counci I "means city or any.future body of the city . .(g)."FCC"means the Federal Comrnun i ca t i on s Commission, or successor governmental entity thereto. -1- , I '. (h)"Franchisee"means the person,firm or corporation to whom or which a franchise,as hereinabove defined, is granted by the Council under this ordinance and the lawful successor,transferee or assignee of said person, firm or corporation. (i)"Gross revenues"means the monthly cable service revenues received by franchisee from subscribers of the cable system;provided,however that such phrase shall not include revenues received from any advertising carried on the cable system,or any taxes on cable service which are imposed directly or indirectly on any subscriber thereof by any governmental unit or agency,and which are collected by the franchisee on governmental unit or agency. behalf of such (j)"Installation"means the connection of the system from feeder cable to subscribers'terminals. (k)"Property of franchisee"means all property owned, installed or used by a franchisee in the conduct of a CATV'business in the City under the authority of a franchise granted pursuant to this ordinance. (1)"Public way"means the surface of,and the space above and below,any public street,highway,freeway, bridge,land path,alley,court.,boulevard,sidewalk, parkway,way,lane,public way,drive,circle or other public right-of-way,in~luding,but not limited to,public utility ea semerrt s r'dedicated -2- utility strips or \'.. rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the City in the service area which shall entitle the City and the franchisee to the use thereof for the purpose of installing, operating,repairing and maintaining the cable system. Public way shall also mean any easement now or hereafter held by the City wi thin the service area for the purpose of public travel,or for uti Li,ty or public service use dedicated for compatible uses,and shall include other easements or rights-of -way as shall wi thin their proper use and meaning entitle the City and the franchisee to the use thereof for the purposes of installing or transmi tting franchisee's cable service or other service over poles,wires,cables,conductors,ducts,conduits, vaults,manholes,amplifiers,compliances,attachments and other property as may be ordinarily necessary and pertinent to the cable system. (m)"Subscriber"means a person or user of the cable system who lawfully receives cable services or other service therefrom with franchisee's express permission. Section 2.Terms of Franchise. (a)AUTHORITY TO GRANT FRANCHISE OR LICENSES FOR CABLE TELEVISION:Subject to state and federal law,it shall be unlawful to engage in or commence construction, operation,or maintenance of a cable ·communications system -3- .'.. without a franchise issued under this ordinance.The Council may,by ordinance,award a non-exclusive franchise to construct,operate and maintain a cable communications system within all or any portion of the City to any person, whether operating under an existing franchise or not, who makes application for authority to furnish a cable communications system which complies with the terms and conditions of this ordinance.Provided,that this section shall not be deemed to require the grant of a franchise to any particular person or to prohibit the Council 'from restricting the number of franchisees should it determine such a restriction would be in the public interest. Any franchise granted pursuant to this ordinance shall be non-exclusive and shall not preclude the City from granting other or further or future .franchises or permits or preclude the City from using or vacating roads, rights-of-way,streets or other public properties or affect its jurisdictiori over them or any part of them, or limit the full power of the City to make all necessary changes,as the City in its sole discretion shall decide, including the dedication,establishment,maintenance and improvements of all new rights-of-way and thoroughfares and other public properties of any type. (b)INCORPORATION BY REFERENCE: (1).The provisi6ns of this ordinance shall be incorporated by reference in,aI!y franchise agreement or license approved hereunder. -4- operating and to subscribers v '•• (2)The provisions of any request for proposals (RFP)issued hereunder,and any proposal submitted and accepted by the City,including any minimum system and services specifications set forth therein, shall be incorporated by reference in any franchise agreement or license approved hereunder. (c)NATURE AND EXTENT OF THE GRANT:Any franchise granted hereunder by the City shall authorize the franchisee, subject to the provisions herein contained: (1)To engage in the business of providing cable communication service within the City; (2)To erect,install,construct,repair,replace, reconstruct,.maintain and retain in,on,over,under, upon,across and along any street,such amplifiers and appliances,attachments supporting structures, ·and other property as may be necessary and appurtenant to the cable communications system;and,in addition, so to use,operate,and provide similar facilities, or properties rented or leased from other persons, firms or corporations,including but not limited to any public utility or other franchisee franchised or permitted to do business in the City. Section 3.Police Powers. In accepting any franchise,the franchisee acknowledges that its rights hereunder are s ub je c t to the lawful exercise -5- f ...~~.~--........--~._••'-'- •__._-" .,...'" of the police power of the City to adopt and enforce general ordinances necessarx to the safety and welfare of the public; and,it agrees to comply with all applicable general laws enacted by the City pursuant to such power. Section 4.Rules and Regulations by the City. (a)In addition to the powers of the City to regulate and control any franchise it issues,within the authority granted to it by the Cable Act,and those powers expressly reserved by the City,or agreed to and provided for in a franchise,the right and power is hereby reserved by the City to promulgate such additional regulations as it may find necessary in the exercise of its lawful police powers and in furtherance of the terms and conditions of the franchise 'agreement and this ordinance,in so far as such additional regulations do not materially alter or impare franchisee's rights under the franchise agreement. (b)The City Council reserves the right to delegate its authority for regulation and for franchise administration and enforcement to a designated agent; and further reserves the right to approve all guidelines for the administration of community a.coe s s channels, as provided in the Cable Act as specifically empowered under Section 611 as well as the exercis~of its r e apons Lb.i Li t.Le s under Section 63'2'and to delegate this -6- ,-"._-~----_. ". authority at its discretion to the agent of the City working in cooperation and with operational and technical guidance from the franchisee.Any approval of access guidelines shall not be unreasonably withheld. Section 5.Application. An applicant for a franchise to construct,operate,or .maintain a cable television system wi thin the City shall file an application in a form satisfactory to the City providing sufficient information as required by the City. Section 6.Hearing. After the application from a prospective franchisee has been received,the City Council shall conduct a public hearing to determine the following: (a)That the public shall be benefited by the granting of a franchise to the applicant. (b)'That the applicant has requisite financial and technical resources and capabilities to build,operate and maintain a cable television system in the area. (c)That the applicant has no conflicting interests, ei ther financial or commercial,which shall be contrary to the interests of the City. (d)That the applicant shall comply with all terms and condi tions placed upon the franchisee by this ordinance and the franchise.ordinance. -7- '.I " (e)That the applicant is capable of complying with all relevant federal,state and local regulations pertaining to the construction,operation and maintenance of the facilities and systems incorporated in its application for a franchise. Section 7.Acceptance. (a)No franchise granted pursuant to the provisions of this ordinance shall become effective unless and until the ordinance granting same has become effective. (b)Within sixty (60)days after the date of the ordinance awarding a franchise,or within such extended period of time as the Council in its discretion may authorize, the franchisee shall file with the City Clerk its written acceptance,in form satisfactory to the City Attorney, of the franchise,together with the bond and certificates evidencing insurance policies required by the franchise ordinance. Section 8.Franchising Costs. The franchisee shall pay to the City,upon terms stipUlated in the franchise ordinance,the City's reasonable out-of-pocket costs associated with the selection and franchising, refranchising or transfer process. shall Rules Section 9. Franchisee Commission (FCC) Technical Standards. comply with the·Federal and Regulations,·Part -8- Communications 76,Subpart K "."... (Technical Standards)now in effect and as may be in the future amended.To meet system design objectives,the following referenced minimal specifications shall also apply: 1)Applicable National/Federal,City,County and State codes and ordinances. 2)Applicable Utility Joint Attachment Practices. 3)National Electrical Safety Code,NFPA No.70 and applicable appendages. 4)Local Utility Code Requirements. 5)Local Right-of-way Procedures. Section 10.Parental Control Devices. Upon subscriber request,franchisee shall make available suitable devices for limiting access to cable channels at actual cost to the franchisee. Section 11.Construction Standards. All .facilities constructed under this ordinance shall be placed and maintained at such places and positions in or upon such streets,avenues,alleys and public,places as shall not interfere with the free passage of traffic and/or pedestrians and the free use of adjoining property,and shall conform to the National Electric Code,State of Washington and City regulations pertaining to such construction. Section 12.Construction Notification . .The City may establ~sh reasonable requirements for advance notification to residents adjace~t to p~oposed construction areas. -9- Section 13.Undergrounding. In those areas and portions of the City where the transmission or distribution facilities of both the pUblic utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground,then the franchisee shall likewise construct,operate and maintain all of its transmission and distribution facilities underground.Amplifiers and other ground mounted appurtenances in franchisee's transmission and distribution lines may be placed in appropriate housing upon the surface of the ground. Section 14.Extension Policy. Areas subsequently annexed by the City shall be provided wi th cable service wi thin six (6)months,if requested.This service shall be provided if there are no less than fifty (50)dwelling units per cable mile if such distribution may be made by'overhead cable;if according to Section 13 of this ordinance,it may be necessary for the franchisee to utilize only underground construction,then the criterion for such extension would be seventy (70)dwelling units per mile.The cable mile measured is the extension length of the cable required for service located within the pUblic way or easement and does not include the length of the service drop to the subscriber's residence.Upon subscriber's request such installation shall be provided at no cost other than the normal connection charges except in the case 'Where an extended drop -10- ..'.. installation is required in such cases the franchisee may charge'the subscriber the additional cost for this extension. In the event request is made for service by a resident Li,ving in an area not meeting such cri t.er i a ,the franchisee shall make such installation available to the requesting subscriber on a time and material cost basis.If and at such time as the density criterion is met,refunds will be made to those subscribers charged for such installations on a pro rata basis.The franchisee shall be obligated to make such refunds and maintain such pertinent records for a period of five (5)years. Section 15.New Developments -Future Services. In cases of new development (such as new subdivisions not yet meeting density requirements as defined in Section 14)and where utilities are to be placed underground,franchisee shall install required equipment at its expense to provide future service.The developer shall be required to give franchlse~reasonable notice of such construction or development,including a copy of any final plan,and of the particular date on which open trenching or other facilities shall be available for franchisee's installation of conduit or cable.Franchisee may be charged no more.for use of such trench than charged other users.Upon request franchisee shall also provide specifications to the developer as needed for trenching or other technical data·that may be requested. -11- / ..,'." If the developer requests activation of plant in a development which fails to satisfy the density criterion specified in Section 14,then franchisee may require developer to pay charges as defined in Section 14. Section 16.Relocation of Facilities. The City may direct the franchisee to relocate or temporarily disconnect or bypass any equipment of the franchisee in a public right-of-way in order to complete street constuction,modification or realignment,install and remove underground uti Ii ties,'or for other reasons of pub l i c safety and efficient operation of the City.Such removal,relocation or other requirement shall be at the sole expense of the franchisee. Franchisee shall receive an equitable share of any public funds,if any,which are made available to companies which have been lawfully directed by the City to remove or relocate property from a public way. Section 17.Future Incorporations. In the event additional adjacent territory is incorporated within the City limits,by annexation or otherwise,franchisee's rights and duties shall be deemed to include such additional terri tory,insofar as compatible with any existing franchise in such area(s). Section 18.Franchise Renewal. The provisions of Section 626 of the Cable Act,as it ':"12- ,.,'.a existed on December 29,1984 shall effectively govern the actions of the City and the franchisee in proceedings relating to franchise renewal.These provisions shall remain in force until and unless future amendments to this act are expressly mandated to supersede their specifications. Section 19.Right of City to Purchase. The City reserves the right to purchase the system under provisions of Section 627 of the Cable Act,as it existed on December 29,1984.These provisions shall remain in force until and unless future amendments to this act are expressly mandated to supersede their specifications. Section 20.Revocation for Cause. Any franchise granted by the City may be terminated during the period of such franchise for the following reasons: (a)Failure by the franchisee to sUbstantially comply with material provisions of this ordinance and applicable City,State and Federal law.Except that franchisee shall not be held in default or non-compliance with the provisions of the franchise,nor suffer any enforcement or penalty relating thereto,where such non-compliance or alleged defaults are caused by strikes,acts of God, power outag~s,or other events·reasonably beyond its ability to control. (b)Petition by the franchisee if approved by the City .Council. -13- ._'." The procedure to be followed resulting in termination for any of the above reasons,save franchisee's request,shall be: (aa)City Council shall specify such deficiencies in wri ting and shall direct in writing that the franchisee correct such deficiencies or comply with such regulations within sixty (60)days of receipt of notice. (bb)Failure to do so shall cause the matter of termination to be brought before the City Council. (cc)At such hearing the franchisee and other interested parties may offer evidence explaining or mitigating such non-compliance.The City Council shall make the determination as to whether such non-compliance was with just cause.In the event the City Council shall find such non-compliance was without just cause the City Council may fix an additional time period to cure such def iciency (ies).If this has not been effected at the expiration of this additional extended period,the City Council may pass an ordinance declaring the franchise to be terminated and forfeited. (dd)If within 120 days the franchisee appeals the revocation and termination of the franchise through legal remedies the revocation of such f r an ch i ae shall be held in abeyance'pending such judicial review by a court of competent jurisdiction. -14- ..'..- Section 21.Effect of Termination for Non-compliance. If any franchise is terminated by the City by reason of the franchisee's non-compliance,that part of the system under such franchise located in the streets and public property, shall,at the election of the City,subject to state and federal law,become the property of the City at a cost consistent wi th the provi sions of Section 627 (b)(1)of the Cable Act, with reduction for any damages and costs incurred by the City. These costs shall include but not be limited to,any payment made by the City pursuant to a resolution of the City Co~ncil authorizing or directing another franchisee to operate the system for a temporary period until a franchise may be granted' subject to state and federal law.If the City does not purchase the system,the franchisee shall upon order of the City Council, remove the system,within a reasonable time or may be permitted to operate such system unti 1 such time as the City Counci 1 may deem otherwise. S€ction 22.Transfer of Ownership. Any franchise awarded by the City shall be based upon an evaluation by the City of each application,the qualif ications,and other criteria as such pertains to each particular applicant.No franchise can be sold,transferred, leased,assigned ~or disposed of in whole or in part either by sale;voluntary or involuntary,merger,consolidation or otherwise,unless approval is grante~by the City Council. Such approval shall not be unreasonably wtthheld. -15- ...".... An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of fifty percent (50%)or more of the.beneficial interests, singlely or collectively,are obtained by other parties.The word "control"as used herein is not limited to majority stock ownership only,but includes actual working control in whatever manner exercised. The franchisee shall promptly notify the City prior to any proposed change in,or transfer of,or acquisition by any other party of control of the franchisee's company.Every change,transfer or acquisition of control of the franchisee's company shall make the franchise subject to cancellation unless and until the City shall have consented thereto.In the event that the City adopts.a resolution denying its consent and such change,transfer or acquisition of control has been effected,the City may cancel the franchise unless control by the franchisee is restored to a status acceptable to the Ci ty CounciL Such approval of transfer,subject to conditions enumerated above,shall not be unreasonably withheld.-Approval of the City shall not be required if said transfer is from franchisee to another person or entity,controlling,controlled by or under common control with the franchisee.Approval shall not be required for mortgaging purposes provided that less than fifty percent (50%)of the beneficial interests,as described above are affected by such mortgage. -16- ",....I.·... Upon the commencement of a foreclosure action or other actions which could possibly result in a judicial sale of all or a substantial part of the cable system,the franchisee shall notify the City Council of such fact,and such notification shall be treated as a notification that a change in control of the company has taken place,and the provisions or this ordinance governing the consent of the City Counci I to such change in control of the franchisee shall apply. Any transfer or assignment approved by the City shall be evidenced by a written instrument,a duly executed copy of which shall be filed in the Office within ninety (90)days after the approval of the transfer or assignment by the City. By said instrument,the assignee shall agree to comply with all terms of this ordinance,the franchise o r d Lnarioe,and the assignor's application. PASSED by"-2 day of the City Council 74 7 'THE CITY OF MARYSVILLE By ~~~OR~"~ ATTEST: BY~~ APPROVED AS TO FOro4: ~....'1tS~-40~.C7 .CITi'TORNEY -17- Ordinance r .\ AF'F'IDAV~T OF"PUBLICATION ---,,---_-..--------No,_ NO'TlCE .OF CITY OF .MARYSVILLE ORDINANCE On the 27th day of May,1986, the City Council of the City of Marysville passed Or- dinance No. 1469,entitled:. . -,being first duly sworn 'he;.,_sJ~_~:':~!9.ry__, _ a weekly newspaper, paper which-has been sp- urt in Snohomish County tapter 213 of Washington s been for more than six ublication hereinafter re- language continually as a. nohomish County,Wash-' of said time was printed esaid place of publication d is a true copy of a . .Q!'~_i..n..C!.~~~as it was ~in supplement form)!>f a period of _.?!1_e con- .~!P.day of _~~~~, day of_}_u_I!~__,19?§__, newspaper was regularly ~aU of said period,That for the foregoing publi- .-cation-is't}ie 'S\J~~i~,;L -6~"25 hi hidIfII"'---'-------,w IC amount has been palm u d-'---5L~_W~_------------ " An Ordinance of the City of Marysville'establishing the conditions,requirements, obligations and duties for construction,maintenance and operation of a cable com- munication and distribution system within the City,and providing for the granting of a non-exctustve rtsnt.privilege,and authority to a franchisee to construct,operate,matn- tain and use poles,conduits,cables,wires and other incidental equipment in,upon, under,over,along and across streets,avenues,boulevards,alleys and other public places of the City;and enacting a new Chapter 5.68 of the Marysville Municipal Code. Said ordinance consisted of the following sections: Section 1.Definitions Section 2.Terms of Franchise Section 3.Police Powers Section 4.Rules and Regulations by the City Section 5.Application Section 6.Hearing Section 7.Acceptance Section 8.Franchising Costs Section 9.Technical Standards Section 10.Parental Control Devices Section 11.Construction Standards Section 12.Construction Notification Section 13.Undergrounding Section 14.Extension Policy .Section 15.New DeYflopments -Future Services Section 16.Relocation of Facilites Section 17.Future Incorporations Section 18.Franchise Renewal Section 19.Right of City to Purchase Section 20.Revocation for cause Section 21.Effect of Termination for Non'compliance Section 22.Transfer of Ownership The full text of said ordinance will be mailed.without charge,to any person who reo. quests the same from the City Clerk... .• PUblished:June 4,1986. Subscribed and sworn to before me this ., -----~_day of -__~-----_:--.19.:,_~, ~.......<,.~"J:,.;./:, blic in and lor th~~~"~~'~~~~;:'~~:~~.>. Residing at Marysville.. .- .~. .'\ -AFFIDAVIT OF PUBLICATION No._ ______~tl}g~L~.!'!_b_s..t~L ,being first duly sworn on oath deposes and says thatsheis the s_e_<;.~~~~_ry:.._ of THE MARYSVILLE GLOBE, a weekly newspaper. That said newspaper is a legal newspaper which'has been ap- proved- by order of the Superior Court in Snohomish County June 18, 1962 in compliance with Chapter 213 of Washington Laws of 1941,and it is now and has been for more than six months prior to the date of the publication hereinafter re- ferred to,published in the English language continually as a weekly newspaper in Marysville,Snohomish County,Wash-' ington,and it is now and during all of said time was printed in an office maintained at the aforesaid place of publication -of said newspaper.That the annexed is a true copy of a _~9j:j._~~_QL ~j.j:.Y_~t)1~!"Y~'yjJ.:h~_Q!"slJ-.?_a.?-.<:.~as it was Ii.published in regular issues (and not in supplement form)!,f BONELESS,U.S.D.A.Choice· Beef Chuck Sit Ih.$14~ ---~~~-~-."-"'.~-"'".....,A.-_....-.~-"-,-\..~---STATE OF WASHINGTON, County of Snohomish, ss, said newspaper once each week for a period of _.?!l.e con- ti k ..th 4 th d f Junesecuivewees,commencing on e ._______ay 0 , d.-UJ.A JAA-l-A---~~_._-~~{------------------ cation is the sum of $_.6.6•.)_5..,which amount has been paid in full 19.B.fi,and ending on the __-:4:UL day of .1_u_I!.~__•19§'?__• both dates inclusive, and that such newspaper was regularly distributed to its subscribers during all of said period.That the ,full amount of the fee charged for the foregoing publi- ,. ~ i I I Subscribed and sworn to before me this _____~-day of ~--------,19._._~ ...........................U~~:::..:~ bile in and for the-~~ot WashinBt~p;··. Residing at Marysvllle. '.,;