HomeMy WebLinkAboutO-1470 - Cable television franchise; repeals Ord. 567 (Special)·~.1
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CIT Y 0 F MAR Y S V ILL E
Marysville,Washington
ORDINANCE NO.11(7CJ
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.
The City Council of the City of Marysville do ordain as
follows:
Section 1:Definitions.In addition to those terms defined
in Chapter 5.68 of the Marysville Municipal Code (Master Cable
Ordinance)the following specific definitions shall apply to this
franchise ordinance.
(a)"Access channels"means the free composite channels
to be used for educational purposes and by government
and public agencies and/or their representatives.
(b)"Basic service"means that cable service regularly
provided to all subscribers that includes the retransmission
of local broadcast television signals and the public,
educational and governmental channel,if required by the
terms hereof.
(c)"CATV"means a community antenna television system as
hereinafter defined.
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(d)"Channel"means a single path or section of the
spectrum which carries a television signal.
(e)"Community Antenna Television System","cable
television system"or "system",means a system of ant~nnas,
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 electronic or electrical signals,located in whole
or in part in the City.
(f)"Converter"means an electronic device with a channel
selector which converts cable signals to a frequency (s)
which permit a subscriber's television receiver to utilize
all authorized cable signals for viewing.
(g)"Decoder"means electronic equipment which converts
an electronically scrambled picture into a viewable signal.
(h)"Insti tution"means a building or buildings Where
service may be utilized in connection with business,
trade,'profession,public agency or service,school,
or non-profit organization.
(i)"Institutional network"means a cable .communications
network designed principally for the provision of
non-entertainment interactive services to businesses,
schools,public agencies or other non-profit agencies.
(j)"Interactive services"means services provided to
.s ubs cr i be r s .where the subscriber either (a)both receives
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information consisting of either television or other
signals and transmits signals generated by the subscriber
or equipment under his/her control for the purpose of
selecting what information shall be transmitted to the
subscriber or for any other purpose;or (b)transmits
signals to any other Loca t Lon for any purpose.
(k)"Lea sed access channe l."means any channel or portion
of a channel available for programming for a fee or charge
by persons or entities other than the franchisee.
(1)IILocal origination channel ll means any channel·or
portion of a channel on which the local franchisee offers
programming.
(m)1I0peratorll means the person to whom a franchise
is granted pursuant to the provisions of this ordinance.
(ri )"Premi urn service."means programming over and above
those provided by basic service for which there is
addit~onal charge.
(0)"Re s LderrtLa I network"means a cable communications
network designed principally for the delivery of
entertainment,community access and/or interactive services
to individual dwelling units.
(p)"Scrambler"means a device used to electronically
alter a signal so that it can be viewed by use of special
decoding device(s).
(q)"Service tier ll means a category of cable service
or other services,·provided by franchisee for which a
separate charge is made by franchisee.
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Section 2:Purpose.This franchise shall constitute
an agreement between the City of Marysville and TCl Cablevision
of Washington,Inc.,(hereinafter the "operator").The operator
promises to construct,maintain,and operate a cable television
system for the distribution of television and other electronic
signals pursuant to the terms of this franchise.The City
agrees to grant the operator all necessary rights and privileges
to use pub l i c rights-of-way necessary for a cable television
system.This agreement shall,as of its effective date,'if
previously accepted by the operator,supersede and replace
all existing franchises previously granted by the City
Marysville to the operator or any of its predecessors,
subsidiaries or affiliated companies.
Section 3:Length of the Franchise.This franchise
shall be for a term through midnight September 30,2001.
Section 4:Terms of the Franchise.This franchise granted
to the operator,shall not be deemed exclusive'and shall not
in any manner prevent the City of Marysvi Ll,e from granting
other franchises.The operator agrees to all the terms,
condi tions,requirements,obligations,and duties as outlined
of the Mar y s vi lIe M u n i c i pal
(hereinafter "Cable Communications Regulatory
All terms used hereunder and not defined,shallOrdinance") .
in Chapter 5.68
C'o d e
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Section 5:Service Area.The operator I s service area
shall be the entire incorporated area of the City of Marysville,
in its present incorporated form or in any later reorganized,
consolidated,enlarged,or re-incorporated form.
Section 6:Rates.Operator shall file annually or when
changes occur,with the City a complete schedule of all rates
to be charged to subscribers,including but not limited to:
(a)Installation of Basic Service.
(b)Periodic charges for Basic Service.
(c)Installation of Premium Service.
(d)Peri09ic charges for Premium Service.
(e)Installation of FM service.
(f)Periodic charges for FM service (including rate
for FM service as a primary service).
(g)Charges for relocation and reconnection.
(h)Converter charges.
(i)Charges for parental control keys.
(j)Installation charges for bulk/commercial service.
(k).Periodic charges for bulk/commercial service.
(1)Installation charges for additional outlet service.
(m)Periodic charges for additional outlet service.
(n)Discounts for multiple premium services,etc.
(0)Interactive service charges.
(p) Extended drop installation charges.
(q)Charge for devices for those with impaired hearing.
(r).All other ·charges.
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The operator shall notify the City in writing thirty
(30)days in advance of any modification in said rates.
The rates charged to subscribers for nonpremium programming
shall be no more than $11.95 (Eleven dollars and n i.net y-if Lve
cents)for the period from the date of this franchise agreement
until December 29,1986.The programming of such services
shall consist of CBUT,Community Programming,KaMa, KING,
CHEC,KIRO,ESPN, KCTS,WTBS,KSTW,KVOS,KCPQ, KQFB,CBN,
CNN, USA,MTV,LIFE,Nashville,or equivalent programming
recognizing the necessity to comply with present and f ut.ur e
Federal Communications Commission regulations and the provisions
of Sections 624 and 625 of the Cable Act.
Section 7:Franchise Fees.The operator shall pay the
City quarterly,on or before the tenth (10th)day of each
January,April,July and October,a sum equal to five percent
(5%)of the Gross revenues.In the event that Federal laws
subsequently enacted change the franchise fee,the new fees
shall be reflected automatically as a modification of above
rates and shall be payable by the operator upon the date of
such enactment.
The operator shall estimate 1ts total gross revenues
for each quarter.At the end of the year a final report shall
be submitted together with final adjusted payment for the
year no later than forty-five (45)calendar days after the
relevant computation date.·Interest shall be paid at a rate
of no less than twelve percent (12%)or any other rate whose
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basic service,pay service,
converter charges,advertising,
such other relevant facts as
maximum is permitted by applicable State or Federal law per
annum on any variance in the final report that resulted in
quarterly underpayment I s ) .Each payment shall be accompanied
by a financial report showing the basis for the computation
separately showing revenues received within the City from
installations,second outlets,
other sources of revenue and
may be reasonably required by
the City.
The City shall have the right,and reasonable time,·to
inspect the books and records of the operator for the purpose
of ascertaining the actual subscriber charges.
No acceptance of any payment shall be construed as a
release of any claim the City may have for further or additional
sums payable under the provisions of this ordinance.
Nothing in this section shall limit the operator's
liability to pay applicable local taxes.This reservation
includes,but is not limited to any applicable amusement taxes,
business and occupation taxes,utility and property taxes.
Section 8:Access Equipment.The operator shall make
available broadcast equipment at its system office for the
use of public agencies and the residents of the Marysville
area for broadcast over the Public,Educational and Governmental
access channel(sf.Initially,at a minimum,such equipment
shall consist of a character generator and two compatible
~"video tape players ·for dubbing and editing capabilit~.
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It is anticipated that as community interest in access
programming develops,the operator,in keeping with its
expressed interest in community relations,shall,at the time
addi tional access channels are activated as in Section 11
of this agreement,supply additional studio and/or mobile
broadcast equipment as well as appropriate technical assistance.
By agreeing to sharing such equipment,the City does not waive
its rights under Section 611(c)and (d)of the Cable Act.
Section 9:Franchising Costs.The operator shall pay
to the City,upon acceptance of any franchise granted hereund€r,
the City's out-of -pocket costs associated with the selection
and franchising process.However such costs shall be limited
to consulting fees and expenses,and the costs of pUblishing
notices and ordinances.Consulting fees in themselves shall
not exceed nine thousand dollars ($9,000).Such payment is
not deductible or considered in lieu of franchise fee payments.
Payment is due within thirty (30)days of receipt of appropriate
invoice from the City.
Section 10:System Capability.The operator shall provide
the minimum of a 300 MHz system capable of thirty-five (35)
channels and shall be activated with an initial minimum of
twenty-three (23)channels of service.Such system shall
be fully operational no less than twelve (12)months from
the date of the award of the franchise.
Furthermore,at such time as thirty percent (30%)of
other'systems operated by,Tele-Communic~tions,Inc.of similar
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demographics,as determined by trade reference books,have
installed or are upgraded to a 400 MHz operation,then the
City Council may after determining community needs direct
the operator to make a similar upgrade capability.Such system
shall be completed within eighteen (18)months of such
notification to the operator.Demographic factors to be
considered are size of the subscriber base and the number
of dwelling units passed.Whenever possible,the age of plant
and date of purchase should also be considered in this
evaluation.
Section 11:Access Channels.The operator shall provide
access channels dedicated for public,educational and
governmental purposes.One access channel may be initially
dedicated for the use of all pUblic,educational and government
access until such utilization warrants sepCj.rate viewing
channels.The City Council may require the operator to activate
an additional access channel when the first is in use eighty
percent (80%)of the weekd 9ys for eighty percent (80%)of
t.he time between 10 AM and 10 PM for ten (10)consecutive
weeks.Thereafter,if the first channel's volume of programming
is less than the above specified limit,then the added access
channel shall revert to the control of the operator,to be
programmed at operator's discretion.Later should the minimum
levels of programming again be exceeded,whether such reversion
is temporary or permanent shall be determined by the City
Council.The City sha+l provide twelve (12)months notice
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to the operator of any required return of such channel to
access use.
Section 12:Institutional Network.The operator shall
make available without charge for use by schools,libraries
and certain designated public buildings located within the
Ci ty of Marysvi Ll e ,decoding or other devices so that special
secured programming may be received over the public access
channel during hours of least general public demand.However
such usage shall be considered in the criterion of Section
11.
Section 13:Other Interactive Services.The operator
shall install an interactive system available to all
subscribers.This system may provide such services as security,
computer interaction,banking,shopping,etc.on a "two-way"
basis.This facility shall be provided at such time when
thirty percent (30%)of Tele-Communications,Inc.' s other
systems of similar demographics as determined by trade reference
books have installed such system.Demographic factors to
be considered are size of the subscriber base and the number
of dwelling units passed.Whenever possible,the age of plant
and date of purchase should also be considered in this
evaluation.
Section 14:Public Municipal Bu~ldings;The operator
shall provide without charge one (1)outlet of basic service
to the City's office building(s),fire station,police station,
and public school buildings that are passed by its cable system.
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The outlets of basic service shall not be used to distribute
or sell cable services in or throughout such buildings;nor
shall such outlets be located in common or public areas open
to the public.Users of such outlets shall hold operator
harmless from any and all liability or claims arising out
of their use of such outlets,including but not limited to,
those arising from copyright liability.The operator shall
not be required to provide an outlet to such buildings where
the drop line from the feeder cable to said buildings or
premises exceeds one hundred fifty (150)cable feet unless,
at the discretion of the operator,the appropriate governmental
enti ty agrees to pay the incremental cost of such drop line
in excess of 150 cable feet.The operator shall make no monthly
service charge for the services thus provided.
Section 15:Emergency Override.In the case of any
emergency or disaster,the operator shall,upon request of
the City,make available its facilities for the City to provide
emergency information and instructions during the emergency
or disaster period.The City shall hold the operator,its
agents,employees,officers,and assigns hereunder harmless
from any claims arising out of the emergency use of its
facilities by the City,including,but not limited to,
reasonable attorney's fees and costs.
Section 16:"Emergency Power.The operator shall provide
a standby power system to automatically activate equipment
at the headend and hubs,if applicab~e,in event of a primary
electrical failure.
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Section 17:Safety Reguirements.
(a)The operator shall,at all times,employ professional
care and shall install and maintain and use commonly
accepted methods and devices for preventing failures
and accidents which are likely to cause damage,injuries,
or nuisances to the public.
(b)All structures and all lines,equipment and
connections in,over,under,and upon the streets,
sidewalks,alleys,and public ways or places of the
franchise area,wherever situated or located,shall at
all times be kept and maintained in a safe,suitable
condition,and in good order and repair.
(c)The City reserves the general right to see that
the system of the operator is constructed and maintained
in a safe condition and if unsafe condition is found
to exist,to order the operator to make necessary repairs
and alterations,within a reasonable time period.
Thereafter the City may make them or have them made,
and collect all reasonable cost and expense thereof from
the operator.However,nothing in this franchise shall
be construed to place an obligation on the City to make
such inspections or repairs or alterations.
Section 18:Construction Inspection.Should the City
have probable cause either through subscriber complaints or
other means t.o believe that a problem may exist in the technical
performance of the sys~em,the operator shall be notified
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in writing of such alleged defects and furnished data leading
to such supposition.The operator shall be given an opportunity
to correct such.defects wi thin a reasonable time.If such
condition(s)persist,the City upon,written advance
notification of no less than ten (10)working days,and upon
proper identification of inspectors,shall have the right
to inspect the operator's system to ascertain if the operator
is in compliance with the standards specified in this franchise
and master ordinance.Costs for such an inspection shall
be borne by the operator provided such deficiencies·are
demonstrated to exist.
Section 19:Upgrade Commencement.Upon granting of
this franchise,the operator shall immediately pursue the
obtaining of all other necessary permits and licenses with
all due diligence and speed.No later than ninety (90)days
subsequent to obtaining such licenses and permits,the operator
shall begin upgrade of the system,if not already so done,
in accordance with the overall schedule as set forth by this
franchise.
Section 20:Upgrade Construction Penalties.The operator
shall be assessed the sum of Two Hundred Dollars ($200.00)
per day as compensatory liquidated damages for each day the
installation upgrade is not fully completed after the expiration
of the twelve (12)month period following the awarding of
the franchise,except for delays due to acts of God.The
operator may obtain extensions of u~grade deadlines due to
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delays caused by circumstances beyond operator's control.
The City shall have the right,solely and exclusively wi thin
its reasonable discretion,to grant such extensions and to
waive such penalties.Any such waiver shall not constitute
waiver of future rights to enforce this penalty.
Section 21:Performance Tests.On an annual basis,
and upon request by the City,the operator shall furnish test
results to determine that such system is adhering to technical
standards as required by the FCC.
Section 22:Record Inspection.The City reserves the
right to inspect the records of the operator at any time during
normal business hours with advance written notice.Such
documents shall include,but not be limited to such information
as financial records,tax returns,and plans as necessary
for the enforcement of terms of the franchise agreement.
Section 23:Periodic Reports.Upon advance request
from the City and no sooner than sixty (60)days from the
conclusion of the fiscal year,the operator shall furnish
to the City a report of its activities in this franchise area,
including,but not limited to the following:
(a)Annual report and 10-K Report to the SEC,if so
required of the franchisee.If the operator is not
required to file such reports,an independent certified
audited financial report shall suffice.However,it
is understood that such reports may be submitted beyond
.this reportingpe~iod if consistent with operator's
corporate policies.
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(b)Listings of the number of subscribers within the
City.
(c)The number of dwelling units passed.
(d)The number of subscribers with basic service.
(e)The number of subscribers with premium services.
(f )The number of subscribers with two-way services.
(g)The number of hook-ups in period.
(h)The number of disconnects in period.
(i )The number of miles of new or rebuilt cable laid
in period.
( j )Total number of miles of cable in city.
(k)Comments on citizen relations,such as number of
complaints received and how those complaints were resolved.
(1)Plans for future technical upgrading.
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(m)Plans for future programming and/or changes.
(n)Maps indicating existing location of headend
equi~ment,trunk and distribution lines and projected
routes with construction completion estimates by month
or by quarter if changed from previous reporting period.
(0)General comments.
Section 24:Customer Service.The operator shall provide
a local business office within ten (10)miles of the City
Hall of Marysville.Operator shall provide an adequate number
of telephone lines,telephone instruments and trained personnel
to insure against undue delay in answering consumer requests.
In addition,telephone ·answering rec~rding devices shall be
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activated after normal business hours so that all such inquiries
and/or complaints may be monitored and prompt response made
by the operator.The efficiency of such telephone response
shall be judged by the City by citizens'complaints and spot
checks by City officials or its designee.Upon notification
of any deficiency operator shall then take immediate corrective
action to satisfy such problem(s).
In the event that the operator's service to any subscriber
is interrupted for twenty-four (24)consecutive hour s,except
for acts of God and matters beyond control of the operat.or,
and except in circumstances for which the prior approval of
the interruption is obtained from the City,the operator shall,
upon request of the affected subscriber,provide a pro-rata
rebate of the total monthly fees to each affected subscriber
in addition to any other applicable refund or penalty.
The operator shall ensure that all subscribers and/or
members of the general public have recourse to a satisfactory
hearing of any complaint.The operator shall take affirmative
action to make known to all subscribers the method of obtaining
such a hearing including the provisions of this section
enumerated below.
Should a person have an unresolved complaint regarding
cable service or the actions or non-actions of the operator
such complaint may be lodged with the City,or the designee
of the City..The City retains responsibi Ii ty for continuing
oversight'administration of the franchise granted pursuant
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to this franchise and under the terms thereof and in accordance
with the Cable Act Section 632.It may delegate such authority
to an agent if desired.The operator shall provide this
information together with appropriate telephone and address
to all subscribers on informative material left with a new
subscriber and,at least once a year,through notification
by mail and through the access channel.
Section 25:Franchise Discussions.A meeting between
the operator and the City shall be held annually on or about
the anniversity date of the granting of the franchise.However,
such meetings may be called at other such times as may be
deemed necessary by the City or the operator.The subjects
of the annual meetings shall cover,but not be limited to,
such subjects as:consumer complaints,construction progress,
programming,technical improvements and other matters.
Section 26:Modification of Franchise Obligations.The
operator's rights to modify its franchise obligations shall
be conditioned on mutual agreement of the City and franchisee
or as provided for in Section 625 of the Cable Act.
Section 27:Conformance to FCC Regulations.If any
portion of this franchise should be inconsistent with any
rule or regulation now or hereinafter adopted by the FCC,
then to the extent of the inconsistency,"the rule or regulation
of the FCC shall control for so long as such rule or regulation
shall remain in effect,but·the remaining provisions of this
franchise ~hall not hereby be affected.
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Section 28:Renewal Before Expiration.Notwithstanding
anything to the contrary set forth in this Section,the operator
and the City agree that at any time during the term of the
then current franchise,while affording the pUblic appropriate
notice and opportunity to comment,the City and operator may
agree to undertake 'and conclude negotiations regarding renewal
thereof.The operator and the City consider the terms set
forth in this section to be consistent with the express
provisions of Section 626 of the Cable Act.
Section 29:Continuity of Service.It shall be'the
right of all subscribers to continue receiving service so
long as their financial obligations to the company are
fUlfilled.
(a)In this regard the operator shall act so far as
it is within the control of the operator so as to ensure
that all subscribers receive continuous uninterrupted
serv~ce during the term of this franchise.
(b )In the event the operator fails to operate a system
for twenty-four (24)continuous and consecutive hours
wi thout prior notification to and approval of the City
Councilor without just cause such as an impossibility
to operate the system because of the occurrence of a
natural disaster,the City may,.at its option,operate
the system or designate someone to operate the system'
until such time as the operator restores service to
corid i.tionsacceptable to the City Councilor a permanent
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operator is selected.If the City is required to fulfill
this obligation for the operator,the operator shall
reimburse the City for all reasonable costs or damages
in excess'of revenues from the system received by the
Ci ty that are the result of the operator I s failure to
perform.
Section 30:Removal &Abandonment of Property of
Franchisee.Pursuant to state and federal law,in the event
that the use of any part of the CATV system is discontinued
for any reason for a continuous period of twelve (12)mont.hs ,
or in the event such system or property has been installed
in any street or public place without complying with the
requirements of this franchise or other City ordinances or
this franchise has been terminated,cancelled or has expired,
the operator shall promptly,upon being given ten (10)days'
notice,remove from the streets or public places all such
property and poles of such system other than any which the
Ci ty may permit to be abandoned in place.In the event of
such removal,the operator shall promptly restore the street
or other areas from which such property has been removed to
a condition similar to that condition existing before such
removal.
Pursuant to'state and federal law,any property of the
operator.remaining in place sixty (60)days after the
termination or expiration of the franchise shall be considered
permanently abandoned ..The City may extend such time not
to exceed an .additional sixty (60)days.
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Any property of the operator to be abandoned in place
shall be abandoned in such manner as the City shall prescribe.
Upon permanent abandonment of the property of the operator
in place,the property shall become that of the City,and
the operator shall submit to the City Clerk an instrument
in writing,to be approved by the City Attorney,transferring
to the City the ownership of such property.
Section 31:Building Moving.The operator shall,on
the request of any person holding a building moving permit
issued by the City,temporarily raise or lower its wires·to
permit the moving of such buildings,provided:(a)the expense
of such temporary raising or lowering of wires is paid by
said person,including,if required by the operator,making
such payment in advance:and (b)the operator is given not
less than ten (10)business days'advance written notice to
arrange for such temporary wire changes.
Section 32:Tree Trimming.With City approval,the
operator shall have the authority to trim trees upon and
overhanging streets and public ways of the franchise area
so as to prevent the branches of such trees from corning in
contact with the wires and cables of the operator and shall
be responsible for debris removal from such activities,except
that,at the option of the City,such trimming may be done
by it or under its supervision and direction at the expense
and liability of the operator.The operator shall give due
no t i ce to the owner or,iessee of such property whose trees
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may thus be involved prior to undertaking such effort.
The operator shall be permitted to charge persons who
own,or are responsible for,such trees or natural growth
for the cost of such trimming,provided that similar charges
are assessed by and paid to the uti Li,ties or the City for
tree trimming.The operator shall reasonably compensate the
City or property owner for any damages caused by such trimming,
or shall,at its own cost and expense,reasonably replace
all trees or shrubs damaged as a result of any construction
of the system undertaken by the operator.
Section 33:Indemnity &Hold Harmless -Waiver of Damages.
The operator shall be required to indemnify and hold harmless
the City from any and all liabilities,fees,costs and damages,
whether to person or property,or expense of any type or nature
which may occur to the City by reason of the,construction,
operation,maintenance,repair and alterations of the operator's
facili ties or any other actions of the operator in the City
of Marysville.In any case in which suit or action is
instituted against the City by reason of damages or injury
caused by the operator,the City shall cause written notice
thereof to be given to the operator and the operator thereupon
shall have the duty to appear and defend in any such suit
or action,without cost or expense to the City.
No privilege or exemption shall be granted or conferred
upon the operator by any franchise except those specifically
prescribed therein,and any use of any street shall 'be
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subordinate to any prior lawful occupancy of the street or
any subsequent improvement or installation therein.
Section 34:Insurance.The operator shall concurrently
wi th the filing of an acceptance of award of this franchise,
furnish to the City and file with the City Clerk or its designee
and at all times during the existence of this franchise,
maintain in full force and effect,at its own cost and expense,
a general comprehensive liability insurance policy,in
protection of the City,its officers,boards,commissions,
agents and employees,in a company approved by the City Cl'erk
and a form satisfactory to the City Attorney,protecting the
City and all persons against liability for loss or damage
for personal injury,death and property damage,and errors
or omissions,occasioned by the operations of the operator
under this franchise,with minimum limits of One Million Dollars
($1,000,000.00)for personal injury and property damage,and
One Million Dollars ($1,000,000.00)combined.
The policies mentioned in the foregoing paragraph shall
name the City,its officers,boards,commissions,agents and
employees,as additional insured and shall contain a provision
that a written notice of cancellation or reduction in coverage
of said policy shall be delivered to the City thirty (30)
days in advance of the effective date thereof.If such
insurance is provided by a policy which also covers the operator
or any otherentity or person other than t.hos e above named,
then such policy shall 'contain the s.tandard cross-liability
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endorsement.Nothing in said insurance policy shall hinder
or impair the other legal rights of the City in this regard.
Section 35:Bonds and Othfr Security.Except as expressly
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provided herein,operator shall not be required to obtain
or maintain bonds or other surety as a condition of being
awarded this franchise or continuing its existence.The City
acknowledges that the legal,financial and technical
qualifications of the operator are sufficient to afford
compliance with the terms of this franchise and the enforcement
thereof.The operator and City recognize that the costs
associated with bonds and other surety may ultimately be borne
by subscribers in the form of increased rates for cable
services.In order to minimize such costs,the City agrees
to require bonds and other surety only in such amounts and
during such times as there,is a reasonably demonstrated need
thereof.The City agrees that in no event,however,shall
it require,a bond or other related surety in an aggregate
amount greater than $5,000.00,conditioned upon the substantial
performance of the material terms,covenants,and conditions
of this franchise.Ini tially,no bond or other surety shall
be requi red.In the event that one is required in the future,
the City agrees to give the operator at least sixty (60)days'
prior notice thereof stating the exact,reason for the
requirement.Such reasons must demonstrate a change in the
operator's legal,financial or technical qualifications which
would'materially prohibit or impair ,its ability to comply
with the terms of this,franchise or afford compliance therewith.
-23-
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0\",~..••-••.,
",:,.,.
Section 36:Severability.If any section,sentence,
paragraph,term or provision hereof is determined to be illegal,
invalid or unconstitutional,by any court of common jurisdiction
or by any state or federal regulatory authority having
jurisdiction thereof,such determination shall have no effect
on the validity of any other section,sentence,paragraph,
term or provision hereof,all of Which shall remain in full
force and effect for the term of this franchise or any renewal
or renewals thereof.
Section 37:Entire Agreement.This agreement,including
the exhibits and addenda attached hereto and forming a part
hereof (if any)are all of the covenants,promises,agreements,
and conditions,either oral or written,between the parties.
Section 38:Contractual Relationship.This agreement
does not constitute the operator as the agent or legal
representative of the City for any purpose whatsoever.Operator
is not qr an t ed any express or implied right or authority to
assume or create any obligation or responsibility on behalf
of·or in the name of the City or to bind the City in any manner
or thing whatsoever.
'Section 39:Applicable Law:Venue.This agreement shall
be construed and interpreted in accordance with federal laws
and the laws of the State of Washington ..In the event a dispute
is litigated in Federal Court,such dispute shall be litigated
in the United States District Court for the Western District
of Washington at Seattle.In the event a dispute is litigated
in Superior Court,~uch dispute shall be litigated in the
-24-
..
..\~~:....'~"~;-,
~'el"~.
Superior Court of the State of Washington,in and for Snohomish
County.
Section 40:Acceptance.This grant of franchise and its
terms and provisions shall be accepted by the operator by the
submission of attached written instrument,executed and sworn to
by a corporate officer of the operator before a Notary Public,
and filed with the City Clerk within sixty (60)days after the
date of the franchise award.Such instrument shall constitute
the unconditional acceptance of this franchise and the promise to
comply with and abide by all its provisions,terms and conditions.
Section 41:Repealer.Ordinance 567,of the City of
Marysville,granting a CATV franchise to GT&E Communications,
Inc.on October 10,1966 is hereby REPEALED.
PASSED by
d7 day of
the City Council and APPROVED by the Mayor this
~47',1986.
THE CITY OF MARYSVILLE
By
ATTEST:
BY.~2£42~CITY CLERK
APPROVED AS TO FORM:
BQ=~~CITY AT ~Y
-25-
--II:I COMMUNITY TELE-COMMUNICATIONS.INC.
GENERAL OFFICES .54 DENVER TECHNOLOGICAL CENTER'CALL BOX 22SSS
~WELLSHIRE STATION,DENVER,COLORADO 80222 .(303)771-8200
.LC.Sparkman
Executive Vice President
June 25, 1986
City of Marysville
514 Delta Avenue
Marysville,Washington 98270
Re:Ordinance No .1470
Granting a Franchise to
TCI Cablevision of Washington,Inc.
Ladies and Gentlemen:
The undersigned,TCI Cablevision of Washington,lnc.,does hereby uncon-ditionally
accept the franchise granted,pursuant to Ordinance No.1470,passed and adopted on
May 27, 1986, and does hereby agree that it will comply with and abide by all of the
provisions,terms and conditions of the franchise.
Very truly yours,
TCI CABLEVISION OF WASHINGTON, INC.
"
\(~:~~S~~~~:2~---·"~···u,
".JCS~prkman
Vice President
JCS/np
State of Colorado )
) ss,
County of Arapahoe )...--.-
Subscribed and sworn to before me this ~day o~1986.
by J C Sparkman as Vice President witness my hand and official seal.
>Notary Pub Iic
5455 S.Valentia Way
Englewood,CO 80111
My commission expires:~/.s;/,!'lif}
':",'
,~.{
AGREEMENT
FOR
CABLE COMMUNICATIONS FRANCHISE
MANACEMENT CONSULTANT SERVICES
THIS AGREEMENT (hereinafter "Agreement")is made and entered
into effective this __,__day of ~,198~,by and between
3-H Cable Communications Consultants {hereinafter "Consultant")
and the.City of Marysville,a municipal corporation duly
organized and existing under and by virtue of the laws of
the State of Washington (hereinafter "City").
CONSULTANT AND CITY,FOR THE MUTUAL CONSIDERATION HEREINAFTER
SET FORTH,DO HEREBY PROMISE,COVENANT AND AGREE AS FOLLOWS:
1.project and Scope of Work:Consultant shall do,perform
or cause to be done or performed,in a good and professional
manner,the following described work.Said work shall
be done and performed in accordance with all applicable
federal,state and local laws,in a workmanlike manner,
consistent with accepted practices for other similar
services.Notwithstanding paragraph VI below,said work
shall always be performed in the best interest of the
Ci ty and its residents,and shall in no manner compromise
the interests of the City and its residents without express
authority of the City.
A.Performance Analysis.Consultant shall inspect and
analyze the technical and operational effectiveness
of the City's present cable communications franchise.
A report of the findings of ·such analysis will be
made to the City Councilor its designee on an annual
basis,or as necessary upon the determination by the
Consultant that noncompliance with the franchise or
any federal,state or local law 'or regulation exists.
B.System Evaluation.Consultant shall inspect and verify
that all features proposed by the franchisee and duly
adopted by ordinance are constructed and/or performed
in a workmanlike manner on a timely basis.This will
include,but not be limited to such items as type
and quality of new components;workmanship of new
construction;line extension density;system leakage;
channel capacity;channel dedication for public,
educa tional and government (PEG)access;local access
equipment;public connections;rates for basic service,
connection,equipment and the like to the extent that
rates are regulatable by the City;and programming,
to the extent that programming is regulatable by the
City.A report of the result of such inspection shall
be made semi-annually;and,a report of any deficiencies
discovered will be made immediately,to the City Council
or its designee.
-1-
.•.J-
C.Consumer Protection and Complaints.Consultant shall
assume responsibility for reviewing and promptly
responding to all public inquiries regarding cable
communication services.Consultant shall make every
effort to bring such inquiries or complaints to a
satisfactory conclusion by negotiation with the cable
operator whenever possible.
On site inspection of areas of dispute will be performed
when necessary for reconciliation between.the citizen
and the cable operator.In order to provide expeditious
service a 24-hour answering service will be maintained
by the Consultant,through a telephone number for
which residents of the franchise area governed by
the Marysvi lIe cable communications franchise,calling
from the location of their cable service reception
within said franchise area will not be required to
pay a long distance toll-call charge.Consultant
shall take such measures as necessary to notify the
residents of the City that such complaint/inquiry
service is available.
D.Documents.Consul tant shall assume responsibility
for the development and maintenance of current system
maps showing the status of upgrading and locations
of such efforts and other projects.Consultant shall
maintain records of subscriber charges,channel
allocations,performance tests,citizens'complaints,
as well as all other franchise records.Copies of
said records shall be made available by Consultant
to the City wi thin one (1)business day of the City's
request for said records.
E.Rate Increase Request.Consultant shall analyze,
evaluate and make recommendations to the City Council
as to the appropriateness of all proposals by the
franchisee to increase service rates to the extent
that the City may approve or disapprove such proposals.
Such reports will include not only financial analysis
but compliance and performance measurementss,as well
as demographic and geographic comparisons as deemed
necessary by Consultant.
F.Access Utilization.Consultant shall review the status
of public,educational and governmental (PEG)use
of the access channels provided.Such review will
include the monitoring of the availability of such
channels,time allocations provided for such use,
and equitable sharing arrangements made by the
franchisee.
-2-
"
Consultant will develop and present to the City within
180 days of the effective date of this Agreement,
rules and procedures under which the franchisee is
permitted to utilize PEG channel capacity for the
provision of other services when such PEG channels
are not being used for their designated purpose.
G.Collection of Franchise Fee .Consultant shall perform
an analysis of the operational statistics supplied
by the franchisee,for the purpose of determining
whether the franchisee is paying the appropriate amount
of franchise fee pursuant to the provisions of the
franchise.Such analysis and audits shall be provided
to the City on a quarterly basis at the same time
as the invoice for Consultant's fee.
In the event that the franchisee becomes delinquent
in its franchise fee payments,it shall be the
responsibili ty of the Consultant to take such measures
as necessary to ensure prompt and complete payment
of the franchise fees on a timely basis.
H.Bond and Insurance •Consultant shall maintain a
complete record of all bonds and insurance required
by the franchise ordinance.Consultant shall
immediately advise the City of any default of any
such requirements.Consultant shall monitor performance
bonds and make recommendations,if necessary,to the
City of any cause to exercise City options in the
case of nonperformance.
I.Current Law.Consultant shall maintain and keep current
a file of federal,state and local law (statutory,
administrative rule,case law)including,but not
limited to Federal Communications Commission rules
and regulations,as they pertain to municipal cable
communication franchises.Consultant will advise
the City as to any significant change or modification
to the above,or any other federal,state or local
law which may have application to municipal cable
communications franchises.Consultant shall inform
the City and the City Attorney's off ice of the name
or names of attorneys utilized by Consultant to provide
legal services with regard to Marysville's cable
communication franchise.
J.Newsletter.Consultant will furnish appropriate members
of the City government with a quarterly newsletter.
This publication will provide news and information
of present and contemplated issues that may affect
municipal cable television administration.
-)-
K.Ownership of Reports/Documents.
drawings,designs,and reports
Agreement shall belong to and
of the City..
Original documents,
developed under this
become the property
r;
II.Duration of Services.
A.Term.The term of this Agreement shall begin
the date of acceptance and ratification by the
(set forth above)and shall expire on the last
of the twelfth (12th)month following such date.
upon
City
day
B.Termination by the City.If the Consultant does not
perform to the satisfaction of the City,or if
Consultant refuses or fails to provide required
assistance or otherwise violates a provision of this
Agreement,then the City may,after giving Consultant
five (5)days'written notice,terminate this Agreement
and take possession of all records and data pertaining
to this project.
III.Fee for Consulting Services.For the performance of all
services contemplated by this Agreement,including all
costs incurred by Consultant in its performance of this
Agreement (including but not limited to,transportation,
lodging,meals,photocopying,telephone,postage,and
other incidental expenses)the City shall pay a fixed
fee to the Consultant.
A.Current Franchise.
on a franchise fee
revenue derived from
on an annual basis).
15%
of
the
of the franchise fee
5%of the franchisee's
operation of the cable
(based
gross
system
B.Payment.Payment by the City for Consultant's services
will be made on a quarterly basis.For accounting
purposes,the annual franchise fee paid by the
franchisee stated above in Paragraph III.A.shall
be calculated by quarterly payments and the Consultant's
fee determined on that basis.
Invoices for such quarterly payment of Consultant's
fee shall be submitted by the Consultant every three
(3)months,with payment due wi thin thirty (30)days
of presentation of the invoice.Said invoices shall
present an itemized statement,and shall show the
method of calculation of the Consultant's fee,including
but not limited to the dollar amount of franchise
fee paid for the period upon which the Consultant's
fee is based;said franchise fee's relationship as
a percentage of the gross revenue of the cable system
for the invoice period;the amount of franchise fee
paid for the franchise year to date and its relationship
-4-
."
as a percentage of the gross revenue of the cable
system for the franchise year to date;total
Consultant's fee paid by the City for the franchise
year.to date in dollar amount,and its relationship
as a percentage of the franchise fee paid by the cable
system for the franchise year to date.
The first payment will be due and payable on the first
day of this Agreement.Said payment will be for one
(l)month I s Consultant's fees based upon the monthly
average of the prior three (3)months'franchise fees
paid by the franchisee.Subsequent invoices will
be presented every three"(3)months thereafter and
shall be based upon the most recent period for which
frarichise fees have been paid~
IV."Successors and Assigns.This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto
and their respective successors and assigns.Consultant
shall.in no event have the right,without the written
consent of the City,to assign any rights or obligations
hereunder,it being understood that Consultant has been
selected based upon its reputation and past performance.
V.Independent Contractor.It is understood and agreed that
the Consultant is,and shall be,acting at all times as
an independent contractor herein,and not as an employee
of the City.The Consultant shall secure at its expense,
and be responsible for any and all payment of income tax,
social security,state disability insurance compensation,
unemployment compensation,and all other payroll deductions
for the Consultant and its officers,agents and employees
and all business licenses,if any,in connection with
the services to be performed hereunder.In connection
with the execution of this Agreement,Consultant shall
not discriminate against any employee or applicant for
employment because of race,religion,color,sex,national
origin,or physical or mental disability.
VI.Indemnity.Consultant agrees to indemnify,defend and
hold harmless City from any and all claims of whatsoever
kind for damage to person or property arising out of or
in connection with Consultant's performance,either by
Consultant or subcontractor,of the duties and obligations
imposed upon Consultant by this Agreement.These
obligations extend to,but are not limited to,claims
by employees of Consultant.For this purpose,Consultant
waives immunity under State and Federal Industrial Insurance
(Workmen's Compensation)statutes.Should either party
to this Agreement suffer injury or damage because of any
act or omission of the other party,its employees,agents
or others for whose acts the party is legally liable,
said injured party shall make a claim in writing and give
wri tten notice of such claim to the other party wi thin
a :reasonable time after the first observance of such injury
or damage.
-5-
...,
.....'I
V2:I..:'3...i...9.t_ts and Remedies.The duties and obligations imposed
by this }~gree:~lent and the rights and remedies available
hereunder.shall,except as otherwise expressly provided
herein,be in addition to and not a limitation of any
duties,obligations,rights and remedies otherwise imposed
or available by law.
VIII.Waiver of Breach.No action or failure to act by the
City or Consultant shall constitute a waiver of any right
or duty afforded any of them under this Agreement;nor
shall any action or failure to act constitute an approval
of or acquiescence thereto unless specifically agreed
to by both parties in writing.
IX ..Invalid Provision.The invalidity or unenforceability
of any particular term or provision of this Agreement
shall not affect the validity or enforceability of any
other term or provision hereof,and this Agreement shall
be construed in all respects as if such invalid or
unenforceable term or provision was omitted.
X.Entire Agreement.This instrument contains the entire
Agreement of the parties,and supersedes any previous
agreement between the parties either by writing,orally
or course of conduct,which might have been effective
on the beginning of the term of this Agreement;except,
as to that·certain agreement between Consultant and City
dated December 6,1984,for the services of Consultant
in renegotiating City's cable communications franchise,
which agreement is separate and distinct from this
Agreement.
This Agreement may not be changed orally,but may be changed
only by an agreement in writing,signed by the parties
hereto.
XI.Construction.This Agreement shall be construed in
accordance with the laws of the State of Washington.
Consultant and City agree that in th.e event of litigation
involving this Agreement,venue shall be proper in the
Superior Court of the State of Washington in and for the
County Snohomish.
XII.Notice.Written notices shall be deemed to have been
duly served if delivered in person to the individual or
entity for whom it was intended,or if delivered at or
sent by registered or certified United States mail to
the last business address known to that party giving the
notice.
All notices and requests shall be addressed to the City
of Marysville and the Consultant as follows:
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·...'...
\.'.'
CITY:
CONSULTANT:
Approved as to form:
y Attorrr'ey
Attest:
Marysville City Hall
514 Delta Avenue
Marysville,WA 98270
3-H Cable Communications Consultants
4517 California Avenue SW,Suite B
Seattle,WA 98116
IONS CONSULTANTS
CITY OF MARYSVILLE
-7-
City of Marysville
The Marysille Globe,Inc.
8213 State Avenue
Marysville,WA 98270
Gentlemen:
August 11,1986
-,
Would you.please pUblish Ordinance 1470 of the City of Marysville.
Said Ordinance was passed by the City Council on May 27,1986.A
copy of the same was sent to you at that time.However,we asked
you to defer publication until ~urther notice.Publication is now
authorized.
Very truly yours,
James H.Allendoerfer
City Attorney
JHA:jw
cc:Phil Dexter
514 Delta • Marysville. Washington 98270 • 206 - 659-8477
.=-:'-
---~~--~
16-The GLOBE Wednesday,August 20, 1986
[PQO[})D~cs [jJG(s~CS@ uG(]J(p (pd@[Ju{S {sG O\3mGw
CITY OF MARYSVILLE
Marysville,Washington
ORDINANCE NO. 1470
AN ORDINANCE OF THE CITY OF MARYSVILLE.GRANTING A NON-
EXCLUSIVE FRANCHISE TO TCI CABLEVISION OF WASHINGTON.INC .• TO CON·
STRUCT.INSTALL AND OPERATE LINES.WIRES.COAXIAL CABLE AND AP-
PURTENANCES FOR ORIGINATING.RECEIVING.DISTRIBUTING AND SUPPLY-
ING RADIO;TELEVISION AND OTHER CABLE COMMUNICATION SERVICE
ALONG.ACROSS AND UPON THE PUBLlC'S STREETS.WAYS.ALLEYS.AND
PLACES WITH THE CITY OF MARYSVILLE;AND REPEALING ORDINANCE 567
WHICH GRANTEDA CATV FRANCHISE TO GT&E COMMUNICATIONS.INC.ON OC-
TOBER 10.1966.
The City Council of the City of Marysville do ordain as follows:.I
Section 1:Definitions.In addition to those terms defined in Chapter 5.68 of the
Marysville Municipal Code (Master Cable Ordinance)the following specific definitions
shall applY to this franchise ordinance.
(a)"Access channels"means the free composite channels to be used for educational
purposes and by government and public agencies and/or their representatives.
(b)"Basic service"means that cable service regularly provided to all subscribers
that includes the retransmission of local broadcast television signals and the public,
educational and governmental channel,if required by the terms hereof.
(c)"CATV"means a community antenna television system as hereinafter defined.
(d)"Channel"means a single path or section of the spectrum which carries a televi·
sian signal.
(e)"CommunitY'Antenna Television System","cable television 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,receiv-
ing,transmitting,amplifying,scrambling and distributing audto,video and other forms
of electronic or electrical stqnals,located in whole or in part in the City.
(f)"converter"means an electronic device with a channel selector which converts
cable signals to a frequency(s)which permit a subscriber'S television receiver to utilize
all authorized cable signals for viewing.
(g)"Decoder"means electronic equipment which converts an electronically scrambl-
ed picture into a viewable signal.
(h)"Institution"means a building or buildings where service may be utilized in con-
neciton with business,trade,profession,public agency or service,school,or non-profit
organization.
(i)"Institutional network"means a cable communications network designed prtn-
cipally for the provision of non-entertainment tnteracttvc-servlces to businesses,schools,
public agencies or other non-orcttt agencies.
(D "f nteractive services"means services provided to subscribers where the
subscriber either Cal both receives information consisting of either television or other
signals and transmits signals generated by the subscriber or equipment under his/her
control for the purpose of selecting,what information sha'll be trans ....:J to the
subscriber or for any other purpose;or (t·l.tranSI;.ih signals to any other location for
any purpose.
(k)"Leased access channel"means env channel or portion of a channel available for
programming for a fee or cnarcebv persons or enttfies other than the franchisee.
(1)"Local origination channel"means any channel or portion of a channel on which
the local franchisee offers programming.
(rn)"Operator"means the person to whom a franchise is granted pursuant to the pro-
visions of this ordinance.
(n)"Premium service"means programming over·and above those provided by basic
service for Which there is additional charge.
(0)"Residential network"means a cable communications network designed prtn-
cipally for the delivery of entertainment,community access and/or interactive services
to individual dwelling units.
(p)"Scrambler"means a device used to electronically alter a signal so that it can be
viewed by use of special decoding cevtcets),'
(q)"Service tier"means a category of cable service or other services,provided by
franchisee for which a separate charge is made by franchisee.
Section 2:Purpose.This franchise shall constitute an agreement between the City of
Marysville and TCl Cablevision of Washington,tnc.,(hereinafter the "operator").The
operator promises to construct,maintain,and operate a cable television system for the
distribution of tetevtsion and other electronic signals pursuant to the terms of this iran-
chtse.The City agrees to grant the operator all necessary rights and privileges to use
public rights-of-way necessary for a cable television system.This agreement shall,asof
its effective date,if prevtcvstv accepted by the operator,supersede and replace all ex-
isting franchises previously granted bvtne City Marysville to the operator or any of its
predecessors,SUbsidiaries or affiliated companies.
Section 3:Length of the Franchise.This franchise shall be for a term through midnight
September 30, 2001.
Section 4:Terms of the Franchise.This franchise granted to the operator,shall not be
deemed exclusive and shall not in any manner prevent the City of MarysviHe tram gran-
ting other franchises.The operator agrees to all the terms,conditions,requirements,
obligations,and duties as outlined in Chapter 5.68 of the MarySVille Municipal Code
(hereinafter "Cable Communications Requlatorv Ordinance;;).All terms used
hereunder and not defined,shall have the same meaning as in the Cable Communica-
tions Regulatory Ordinance.
Section S:Service Area.The operator's service area shall be the entire incorporated
area of the City of Marysville,in its present incorporated form or in any later reorganiz-
ed,consolidated,enlarged,or re-incorporated form.
Section 6:Rates.Operator shall file annually or when changes occur,with the City a
complete schedule of all rates to be charged to subscribers,including but not limited to:
(a)Installation of Basic Service.
{b)Periodic charges for Basic Service.
Ie)Installation of Premium Service.
However SUch usage shall be considered in the criterion of Section 11.
Section 13:Other Interactive Services.The operator shall install an interactive system
available to all subscribers.This system may provide such services as security,com-
puter interaction,banKing,Shopping,etc. On a "two-way"basis.This facility shall be
provided at such time when thirty percent (30%)of rere-communrcaucns.tnc.rs.other
systems of similar demographics as determined by trade reference books have installed
such system.Demographic factors to be considered are size of the subscriber base and
the number of dwelling units passed.Whenever Possible,the age of plant and date of pur-
chase should also be considered in this evaluation.
Section 14:Public Municipal Buildings:The operator shall provide without charge one
(1)outlet of basic service to the City's office building(sl,fire station,police station,and
public school buildings that are passed by its cable system.The outlets of basic service
shall not be used to distribute or sell cable services in or throughout such buildings;nor
shall such outlets be located in common or public areas open to the public.Users of such
outlets shalt hold operator harmless from any and all liability or claims arising out of
their use of such outlets,including but not limited to,those arising from copyright liabili-
ty.The operator shall not be required to provide an outlet to such buildings where the
drop line from the feeder cable to said buildings or premises exceeds one hundred fifty
(150)cable feet unless,at the discretion of the operator,the appropriate governmental
.entity agrees to pay the incremental.cost of such drop line in excess of 150 cable feet.The
operator shall make no monthly service charge for the services thus provlded.
Section 15:Emergency Override.In the case of any emergency or disaster,·the
operator shall,upon request of the City,make available its facilities for the City to pro-
vide emergency information and instructions during the emergency or disaster period.
The City shall hold the operator,its agents,employees,officers,and assigns hereunder
harmless from any claims arising out of the emergency use of its facilities by the City,in-
cluding,but not,limited to.reasonabte attorney's fees and costs.
Section 16:Emergency Power.The operator shall provde a standby power system to
automatically activate equipment at the headend and hubs,if applicable,in event of a
primary electrical failure.
Section 1"7:Safety Requirements.
(a) The operator shall,at all times,employ professional care and shall install and
maintain and use commonly accepted methods and devices for preventing tenures.end
accidents which are liKely to cause damage,inlurles,or nuisances to the public:
(b) All structures and au lines,equipment and connections in,over,under,and upon
the streets,sidewalks,alleys,and public ways or places of the franchise area,wherever
situated or located,shall at all times be kept and maintained in a safe,suitable condition.
and in good order and repair.
(c) The City reservesthe general right to see that the system of the operator is con-
structed and maintained in a safe condition and if unsafe condition is found to exist,to
order the operator to make necessary repairs and alterations,within a reasonable time
period.Thereafter the City may make them or have them made,and collect alt
reasonable cost and expense thereot from the oeprator.However,nothing in this fran-
chise shall be construed to place an obligation on the City to make such inspections or
repairs or alterations.
Section 18:Construction Inspection.Should the City have probable cause either
through subscriber complaints or other means to believe that a problem maY'exist in the
technical performance of the system,the operator shall be notified in writing of such
alleged defects and furnished data leading to such supposition.The operator Shall be
given an opportunity to correct such defects Within a reasonable time.If such condi·
tionf s)persist,the City upon,written advance notification of no less than ten (10)work-
ing days,and upon proper identification of inspectors,shall have the right to inspect the
operator's system to ascertain if the operator is in compliance with the standards
specified in this franchise and master ordinance.Costs for such an inspection shall be
borne by the operator provided such deficiencies are demonstrated ot exist.
Section 19:Upgrade Commencement.Upon granting of this franchise,the operaror
shall immediately pursue the obtaining of all other necessary permits and licenses with
all due diligence and speed.No later than nlnety (90)days subsequent to obtaining such
licenses and permits,the operator shall begin upgrade of the system,if not already so
done,in accordance With the overall schedule as set forth by this franchise.
Section 20:Upgade Construction Penalties.The operator shall be assessed the sum of
Two Hundred Dollars ($200.00)per day as compensatory liqUidated damages for each
day the installation upgrade is not fully completed after the expiration of the twelve (2)
month period following the awarding of the franchise,except for delays due to acts of
God. The operator may obtain extensions of upgrade deadlines due to delays caused by
circumstances beyond operator's control.The City shall have the,right,sotelv and ex'
elusively Within its reasonable discretion,to grant such extensions and to waive such
penalties.Any such waiver shall not constitute waiver of future rights to enforce this
penalty..
Section 21:Performance Tests.On an annual basis,and upon request by the City,the
operator shall furnish test results to determine that such system is adhering to technical
standards as required by the FCC.
Section 22:Record Inspection.The City reserves the right to inspect the records of the
operator at any time.during normal business hours with advance written notice.Such
documents shall lnclude.but not be limited to such information as financial records,tax
returns,and plans as necessary for the enforcement of terms of the franchise agree-
ment.
Section 23:Periodic Reports.Upon advance request from the City and no sooner than
Sixty (60)days from the conclusion of the fiscal year,the operator shall furnish to the Ci-
ty a report of its acnvtttes in this franchise area,including,but notttrntted to the follow-
ing::
(a)Annual report and 10-K report to the·,SEC, if so required of the franchisee.If the
operator is not required to tile such reports,an independent certified aucttec financial
report shall suffice.However,it is understood that such reports may be SUbmitted
beyond this reporting period if consistent with operator's corporate policies.
tb)Listlngs at the number of subscrlbers within the City.
~~~!~~~~~~~~of dwetlinq units pass,;!
mit to the City Clerk an instrument in writing,to be approved by the 'City Attorney,
transferring to the City the ownership of such property.
Section 31:Building Moving.The operator shall,on the request of any person holding a
building moving permit issued by the the City,temporarily raise or lower it wires to per-
mit the moving of such buildings,provided:(a)the expense of such temporary raising or
lowering of wires is paid by said person,including,if required by the operator,making
such payment in advancei and (b)the operator is given not less than ten (10)business
days'advance written notice to arrange for such temporary wire changes.
Section 32:Tree Trimming.With City approval.the operator shall have the authority
to trtrn trees upon and .overhanging streets and public ways of the franchise area so as to
prevent the branches of such trees from coming in'f-ontact with the wires and cables of
the operator and shall be responsible for debris removal from such activities,except
that,at the option of the City,such trimming m~y'be done by it or under its supervision
~~~c~i~~C,~~no:~~~~;~~ses~~eo~~~d~a~;~~~r~~~~o~~rr~~;m~~et~~~r;~~~:~l~~dg~~ro~~~
undertaking such effort.',',\\
The operator shall be permitted to charge persons who own,or are responsible for,
such trees or natural growth for the cost of such trimming,provided that similar charges
are assessed by and paid to the utilities or the City for tree trimming.The operator shall
reasonably compensate the City or property owner for any damages caused by such
trimming,or Shall,at its own cost and expense,reasonably replace all trees or shrubs
damaged as a result of any construction of the system undertaken by the operator.
Secticm 33:Indemnity &Hold Harmless -Waiver of Damages.The operator shall be re-
quired to indemnify and hold harmless the City from any and all liabilities,fees,costs
and damages,whether to person or property,or expense of any type or nature which
may occur to the City by reason of the construction,operation,maintenance,repair and
alterations of the operator's facilities or any other actions of the operator in the City Of
Marysville.In any case in which suit or-action is instituted against the City by reason of
damages or injury caused by the operator,the City shall cause written notice thereof to
be,given to the operator and the operator thereupon shall have the duty to appear and de-
fend in any such suit or action,without cost or expense to the City.
No privilege or exemption shall be granted or conferred upon the operator by any Ir-an-
chise except those specifically prescribed therein,and any use of any street shall be
subordinate to any prior lawful occupancy of the street or any SUbsequent improvement
or installation therein.
Section 34:Insurance.The operator shaH concurrently with the filing of an acceptance
of award Of this franchise,furnish to the City and file with the City Clerk or its designee
and at all times during the existence of this franchise,maintain in full force and effect,at
its own cost and expense,a general comprehensive·liability Insurance policy,in protec·
tion of the City,its officers,boards,commissions,agents and employees,in a company
approved by the City Clerk and a form satisfactory to the City Attorney,protecting the
City and all persons against liability for loss or damage for personal injury,death and
property damage,and errors or cmmtsstons,occasioned by the operations of the
operator under this franchise,with minimum limits of One Million Dollars ($1,000,000.00)
for personal injury and property damage,and One Million Dollars ($1,000,000.00)com-
bined.
The policies mentioned in the foregoing paragraph shall name the City,its officers,
boards,commissions,agents and employees,as additional insured and shall contain a
provision that a written notice of cancellation or reduction in coverage of said policy
shall be delivered to the City thirty (30)days in advance of the effective date thereof.If
such insurance is provided by a policy which also covers the operator or any other entity
or person other than those above named,then such policy shall contain the standard
cross-liability endorsement.Nothing in said insurance policy shall hinder orImpatr the
other legal rights of the City in this regard.
Section 35:Bonds and Other Security.Except as expressly provided herein,operator
shall not be required to Obtain or maintain bonds or other surety as a condition of being
awarded this franchise or continuing its existence.The City acknowledges that the legal,
financial and technical qualifications of the operator are sufficient to afford compliance
with the terms of this franchise and the enforcement thereof.The operator and City
recognize that the costs associated with bonds and other surety mav ultimately be borne
by subscribers in the form of increased rates for cable services.In order to minimize
such costs,the City agrees to require bonds and other surety only in such amounts and
during such times as there is a reasonably demonstrated need thereof.The City agrees
that rn no event,however,shall it require a bond or other related surety in an aggregate
amount greater than $5,000.00,conditioned upon the substantial performance of the
material terms,covenants,and conditions of this franchise.Initially,no bond or other
surety shall be required.In the event that one is required in the future,the City agrees to
give the operator at least Sixty (60)days'prior notice thereof stating the exact reason for
the requirement.Such reasons must demonstrate a change In the operator'S legal,finan-
cial or technical qualifications which Would materially prohibit or impair its ability to
comply with the terms of this franchise or afford compliance tnercwttn.
Section 36:Severability.If any section,sentence,paragraph,term or provision hereOf
is determined to be illegal,invalid or unconstitutional,bY any court of common iuetsetc-
tion or by any state or federal regulatory authority having jurisdiction thereof,such
determination·shall have no effect on the validity of any other section,sentence,
paragraph,term or provision hereof,all of which shall remain in tuf l force and effect for
the term of this franchise or any renewal or renewals thereof.
Section 37:Entire Agreement.This agreement,including the exhibits and addenda at-
tached hereto and forming a part hereof (if any)are all of the covenants.promises,
agreements,and conditions,either oral or written,between the parties.
Section 38:Contractual Relationship.This agreement does not constitute the operator
as the agent or legal representative of the City for any purpose whatsoever.Operator is
not granted any express or implied right or authority to assume or create any obligation
or responsibility on behalf of or in the name of the City or to bind the City in any manner
or 1hing whatsoever..
seenen 39:AP~licable Law;Venue.This agreement shall be construed and interpreted
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Qispute is litigated ·i·n.F~deral Court,such dispute·sh~·llbe -I'itigated fn th~United States
District Court for the Western District of Washington at Seattle.In the event a dispute is
litigated in Superior Court,such dispute shall be litigated in the Superior court of the
state of Washington,in and for snohomish County.Section 40:Acceptance.This grant of franchise and its terms and provisions shall be
accepted by the operator by the submission of attached written instrument,executed and
sworn to by a corporate officer of the operator before a Notary Public,and filed With the
City Clerk within sixty (60)daYS after the date of the franchise award.Such instrument
shall constitute the unconditional acceptance of this franchise and the promise to comply
with and abide by all its provtstons,terms and conditions.
Section 41:Repealer.Ordinance 5<>7,of the City of Marysville,granting a CATV fran-
chise to GT&E Communications,Inc. on october 10, 1966 is hereby REPEALED.
PASSED by the City council and APPROVED by the Mayor this 27th day of May,1986.
THE CITY OF MARYSVILLE
By s/Norman Anderson,Mayor
ATTEST:By slPhiJliP E.Dexter,City Clerk
(
A.PPRO.VED AS TO FORM:BY james H.AlIe.ndoerfer,City Attorney.
-\~iSjAUSOSffNl¥lt:1
I
·UI ~YU;:'\;;I IDt:1 :",WIIll ·ocrs.1C;.servlce.
(e)The nvmer of subscribers with premium services.
(fl The number of subsclbers wit~,two-way services.
(g)The number of hook-ups in perrod.
(h)The number of disconnects in period.
(i)The number of miles of new or rebuilt cable laid in period.
(j)Total number Of miles of cable in City.
(k)Comments on citizen relations,SUch as number of complaints received and how
those.complaints Were resolved.
(I)Plans for:future technical upgrading.
(rnj Plans for future programming and/or changes.
(n)Maps indicating existing location of headend equipment,trunk and distribution
lines and prolected routes with construction completion estimates by month or bY
quarter if changed form previous reporting period.
(0)General comments..
n Section 24:Customer Service.The operator shall provide a local business office within
""'Ten (10)mile of the City Hall of Marysyille.Operator sh~JI provtde an adequate number
of telephone lines,telephone instruments and trained personnel to insure against undue
delay in answering consumer requests.In addition,telephone answering recording
devices shall be activated after normal business hours so that all such inquiries and/or
complaints may be monitored and prompt response made by the operator,The efficiency
of such telephone response shall be iudged by the City by citizens'complaints and spot
checks by City officialS or its designee.Upon notification of any deficiency operator shall
then take immediate corrective action to satisfy such probrarrnsj.
In the event that the operator's service to any subscriber is interrupted for twenty-four
)24)consecutive hours,except for acts 'of God and matters beyond control of the
operator,and except in circumstances for which the prior approval of the interruption is
obtained form the City,the operator shall;upon request of the affected subscriber,pro-
vide a pro-rata rebate of the total monthly fees to each affected subscriber in addition to
any other applicable refund or penalty..
The operator shall ensure that all subscribers and/or members of the general public
have recourse to a satisfactory hearing of any complaint.The operator shall take affir-
mative action tomake known to all subscribers the method of obtaining such a hearing
inCluding the provisions of this section enumerated below.
Should a person have an unresolved complaint regarding cable service or the actions
or non-actions of the operator SUch complaint may be lodged with the City,or the
cesranee of the City,The City retains responsibility for continuing oversight admln-
ststrattcn ot the franchise granted pursuant to this franchise and under the terms thereof
and in accordance with the Cable Act Section 632.It may delegate such authority to an
agent if desired.The operator shall provide this information together with appropriate
telephone and address to alt SUbscribers on informative material left with a new
SUbscriber and,at least once a year,through notification by mail and through the access
channel.
Section 25:Franchise Discussions.A meeting between the operator and the City·shall
be held annually on or about the anniversary date of the granting of the franchise.
However,such meetings may be called at other such times as may be deemed necessary
by the City Or the operator.The subiects of the annual meetings shall cover,but not be
limited to, SUch subjects as:consumer complaints,construction progress,programm-
ing,technical improvements and other matters.•,
Section 26:Modification of Franchise Obligations.The operator's rights to modify its
franchise Obligations shall be conditioned on mutual agreement of the City and fran-
chisee or as provided for in Section 625 of tne Cable Act..
Section 27:conformance to FCC R·egulaticJns.If any portion of this franchise Should be
inconsistent with any rule or regulation now or hereinafter adopted by the FCC,then to
the extent of the inconsistency,the rule or regulation of the FCC shall control for so long
as such rule Or regulation shall remain in .effect;but the remaining provisions of this
franchise shall not hereby be affected.
Section 28:Renewal Before Expiration.Not Withstanding anything to the contrary set
forth in this Section,the operator and the City agree that at any time during the term of
the then current franchise,While affording the public appropraite notice and opportunity
to comment,the City and operator may agree to undertake and conclude negotiations
regarding renewal thereof.The operator and the City consider the terms set forth in this
section to be consistent with the express provtstons of Section 626 of the Cable Act.
Section 29:Continuity of Service.It shall be the right of all subscribers to continue
receiving service so long as their financial obligations to the company are fUlfilled.
(a)In this regard the operator shall act so far as it is within the control of the operator
so as to ensure that all subscribers receive continuous uninterrupted service during the
term of this franchise.."
(b) In the event the operator fails to operlate a system for twenty-tour (24)continuous
and consecutive hours Without prior notification to and approval Of the City Council or
without just cause such as an impossibilityAo operate the system because of the occur-
rence of a naturaJ disaster,the City may,at its option,operate the system or designate
someone to operate the system until such time as the operator restores service to condi-
tions acceptable to the City Council or a permanent operator is selected.if the City is re-
qulred to fulflll this obligation for the operator,the operator shall reimburse the City for
all reasonable costs or damages in excess Of revenues from the system received bY the
City that are the result of the operator's failure to perform.
.Section 30:Removal &Abandonment of Property of FranChisee.Pursuant to state and
federal law,in the event that the use of any part of the CATV system is discontinued for
any reason for a continuous pertoo of twelve (12)months,or in the event such system or
property has been installed in any street or pubflc place without complying with the re-
quirements Of this franchise or other City ordinances or this franchise has been ter-
minated,cancelled or has expired,the operator shall promptly,upon being given ten (10)
days'notice,remove from the streets or pubfic places all such property and poles of such
system other than any which the City may permit to be abandoned in place.In the event
of such removal,the operator shall promptly restore the street or other areas from which
such property has been removed to a condition similar to that condition existing before
such removal.:
Pursuant to state and federal law,any property of the operator remaining in place six-
ty (60)days after the termination or expiration of the franchise shall be considered per-
manently abandoned.The City may extend such time not to exceed an additional sixty
(60)days.
Any property Of the operator to be abandoned in place shall be abandoned in such man-
ner as the City shall prescribe.Upon permanent abandonment of the property-Of the
operator in place,the property shall become that (If the City,and the operator shall su~-
._,.••_.~..~.."""VI ron service.
(f)Periodic charges for FM service (inclUding rate for FM service as a primary ser-
vice).
(g)Charges for relocation and reconnectton.
(h)Converter charges.
(i)Charges for parental control keys.
(D Installation charges for butk/commerclel service.
(k)Periodic charges for buf k/commer-clel service.
(/)Instal/ation charges for additional outlet service.
(m)Periodic charges for additional outlet service.
(n)Discounts for multiple premium services,etc.
(0)Interactive service charges.
(p)Extended drop installation Charges.
(q)Charge for devices for those with impaired hearing.
(r)All other charges.
The operator shall notify the City in writing thirty (30)days in advance of any
modification in said rates.
The rates charged to subscribers for nonpremlum programming shall be no more than
$11.95 (Eleven dollars and ninety-five cents)for the period from the date of this franChise
agreement until December 29, 1986. The pro.gramming of such ssrvrces shall consist of
CBUT,Community Programming,KOMO,KING,CHEC,KIRO,ESPN,KCTS,WTBS,
r;KSTW,KVQS,KCPQ,KQFB,CBN,CNN,USA,MTV,LI FE,Nashville,or equtvetent
L programming recognizing the necessity to comply with present and future Pedere!Com-
munications Commission regulations and the provisions of Sections 624 and 625 of the
Cable Act.
Section 7:FranChise Fees.The operator shall pay the City quarterly,on or before the
tenth (10th)day of each January,April,July and october.a sum equal to five percent
(5%)of the Gross revenues.In the event that Federa/laws subsequently enacted change
the franchise fee, the new fees shall be reflected automatically as a modification of
above rates and shall be payable by the operator upon the date of such enactment.
The operator shall estimate its total gross revenues for each quarter.At the end of the
year a final report shall be submitted together With final adjusted payment for the year
no later than for ty-flve (45)calendar days after the relevant computation date.Interest
sneu be paid at a rate of no less than twelve percent (12%)or any other rate Whose max-
imum is permitted by applicable State or Federal law per annum on any variance in the
final report that resulted in quarterly underpevrnentrs),Each payment shall be accom-
panied by a financial report showing the basis for the computation separately shOWing
revenues received within the city from basic service,pay service,installations,second
outlets,converter charges,advertising,other sources of revenue and such other relevant
facts as may be reasonably required bvtne City.
The City shall have the right,and reasonable,time,to inspect the books and records of
the operator for the purpose of ascertaining the actual subscriber charges.
No acceptance of any payment shall be construed as a release of any claim the City
may have for further or additional sums payable under the provisions of this ordinance.
Nothing in this section shall limit theoperators liability to pay applicable local taxes.
This reservation includes,but is not limited to any applicable amusement taxes,
business and occupation taxes,utility and property taxes.
Section 8:Access Equipment.The operator shall make available broadcast equipment
at its system office for the use of public agencies and the residents of the Marysville area
of public agencies and the residents of the MarYSVille area for broadcast over the Public,
Educational arid Governmental access cnenneusr.Initially,at a minimum,such equip-
ment shall consist of a character generator and two compatible 112"video tape players
for dubbing and editing capablfltv.
. 'f t is anticipated that as community interest in access programming develops,the
operator,in keeplnqwith its expressed interest in community relations,shall,at the time
additional eccesscnannets are activated as in Section 11of this agreement,supply addi-
tional studio andlor mobile broadcast equipment as well as appropriate technical
assistance.By agreeing to sharing such equipment,the City does not waive its rights
under Section 61l(d and (d) of the Cable Act.
Section 9:Franchising Costs.The oeprator shall pay to the City,upon acceptance of
any franchise granted hereunder,the City'S out-of-pocket costs associated with the selec-
tion and franchising process.However,such costs shall be limited toccnsutttnc fees and
expenses,and the costs of publishing notices and ordinances.Consulting fees in
....themselves shall not exceed nine thousand dollars ($9,000). Such payment is not dedueti·
: ere or considered in lieu of franchise fee payments.Payment is due within thirty (30)
I:days of receipt of appropriate invoice from the City.
Section 10:System Capability.The operator shaH provide the minimum of 300 MHz
r-system capable of thirty-five (35)channels and shall be activated with an initial
minimum of twenty-three (23)channels of service.Such system shall be fully opera-
tional no less than twelve (12)months from the date of the award of the franchise.
Furthermore,at such time as thirty percent (30%)Of other systems operated by r ere-
Communications,Inc.of similar demographics,as determined by trade reference books,
have installed or are upgraded to a 400 MHz operation,then the City Council may after
determining community needs direct the operator to make a similar upgrade capability.
SUch system shall be completed within eighteen (18)months of such notification to the
operator.Demographic factors to be considered are size of the subscriber base and the
number of dwelling units passed,Whenever possible,the age of plant and date of pur-
chase should also be considered in this evaluation.
Section 11:Access Channels.The operator shall provide access channels dedicated for
p'Jblic,educational and governmental purposes.One access channel may be initially
dedicated for thEUJse.of all public,educational and government access until such utiliza-
tion warrants separate vlewlnq channels.The City Council may require th operator to
activate an additional access channel when the first is in use eighty percent (80%) of the
weekdays for eighty percent (80%)of the time between 10 AM and 10 PM for ten'10) ccn-
securtve weeks.Thereafter,If the first channel's volume of programming is less than the
above specified limit,then the added access channel shall revert to the control of the
operator,to be programmed at operator's discretion.Later should the minimum levels
of programming again be exceeded/whether such reversion is temporary or permanent
shall be determined by the City Council.The City shall provide twelve (12)months notice
to the operator of any required return of such channel to access use.
Section 12:Institutional Network.The operator shall make available without charge
for use by schccrs,libraries and certain desipnated public buildings located within 'the Ci-
ty of Marysville,cecoetns or other cevices so that special secured programming may be
received over the public access channel during hours Of least general pubflc demand.
n ,
V.~..
AFFIDAVIT OF"PUBLICATION
No._
STATE OF WASHINGTON,
County of Snohomish,
ss.
____~~E':~!l:._~e:~~~~!_..being first duly sworn
on oath deposes and says that.sheis the;..~~~:_e_t:c:~~__.. _
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 hereinafterre-
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 publicationofsaidnewspaper.That the annexed is a true copy of a
____D.r..diIlan~~_jtJAIQ as it was
published in regular issues (and not in supplement form)of
said newspaper once each week for a period of __.9Jl~__con-
secutive weeks,commencing on the _~.9j:Jl__day of __~~~~..s_~
198n._.and ending on the __~9!=!I__day of !-_':~':~:_,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-
cation is the sum of $_J5A...QQ ,which amount has been.'."J '"
paid in full I ~._;~:~_".-.:':'J-~--j))l.h!J-!J--_-_-------:----:.-,.,.-:..:'".-
~,-:---....e ,
Subscribed and sworn to before me this -~.;;.../\,.. " ..'.
_____~-----d~Y of ~IkYL----.19:~,'.:":>'
...........O~~~·\.Notary~'~~~"~orthe ~~"~;·~~~-;:gton.
Residing at Marysville.