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Resolution - 8401RESOLUTION NO. 8401 • A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST COVINA APPROVING THE TRANSFER OF A FRANCHISE FOR A CABLE TELEVISION SYSTEM FROM FALCON CABLE T.V. OF WEST COVINA TO CENCOM CABLE TELEVISION, INC. WHEREAS, on March 9, 1981, the City Council of the City of West Covina adopted Ordinance No. 1506, adding Article II to Chapter 11 to the West Covina Municipal Code providing for the granting of cable television franchises, which Article the City Council amended on October 25, 1982, pursuant to Ordinance No. 1563 and on December 12, 1983 pursuant to Ordinance No. 1618 (hereinafter collectively referred to as the "Franchise Ordinance"); WHEREAS, on August 29, 1983, the City Council of the City of West Covina adopted Resolution No. 6762, stating an intention to award a cable television franchise to Falcon Cable TV of West Covina (hereinafter referred to as "Falcon"); WHEREAS, on December 12, 1983, the City Council of the City of West Covina adopted Ordinance No. 1618 granting a cable television franchise to construct, operate and maintain a cable television system within the City of West Covina to Falcon, and approving the entering into of a Franchise Agreement between the City and Falcon; WHEREAS, on February 1, 1984 the City of West Covina and Falcon entered into "An Agreement Granting A Non - Exclusive Franchise To Falcon Cable TV Of West Covina To Operate A Cable Television System In The City Of West Covina And Setting Forth Conditions Accompanying The Granting Of The Franchise", which was subsequently amended on June 18, 1984 (hereinafter collectively referred to as the "Franchise Agreement"); WHEREAS, on August 3, 1987, the City of West Covina, Falcon and Mt. San Antonio College entered into an "Agreement Between City of West Covina, Mt. San Antonio College, and Falcon Cable TV Regarding Community Access Cable Television Programming" (hereinafter referred to as the "Tripartite Agreement"); -1- V • WHEREAS, on July 31, 1984, Falcon Communications entered into an Agreement with BKK Corporation entitled "Head End Site Lease^ (hereinafter „Tower Lease^), which enabled Falcon Communications to construct an antenna facility (hereinafter, the "Tower") on BKK Corporation's property. WHEREAS, on April 12, 1985, Falcon Communications and the City of West Covina entered into an agreement entitled "Head End and Tower Site Lease (hereinafter referred to as the "Tower Sublease"), which enabled the City to place its communications equipment on the Tower; WHEREAS, Falcon has requested that the City approve transfer of the Franchise from Falcon to Cencom Cable Television, Inc. (hereinafter referred to as "Cencom"); WHEREAS, Falcon has further requested that the City approve the purchase by Gaylord Broadcasting Company (hereinafter referred to as "Gaylord") of approximately 97% of the stock of Cencom; WHEREAS, in support of its Transfer Application, Falcon has submitted to the City the following documents, which are on file in the office of the City Clerk and are collectively referred to as the "Transfer Documents": (1) Letter from M. C. Derick to H. R. Fast, dated July 5, 1989; (2) Letter from H. R. Fast to M. C. Derick, dated July 14, 1989; (3) Report regarding Cencom Cable Television, Inc., dated June, 1989; (4) Report regarding Cencom Cable Television, Inc., dated July 26, 1989; (5) Report regarding Cencom Cable Television, Inc., dated July 27, 1989; (6) Letter from J. T. Keating to M. C. Derick, dated August 18, 1989; (7) Letter from M. C. Derick to J. T. Keating, dated August 21, 1989; (8) Letter from J. T. Keating to M. C. Derick, dated August 21, 1989; CPM 0 • (9) Letter from G. O. Kleier to S. F. Field, dated August 23, 1989; (10) Letter from M. C. Derick to H. R. Fast, dated August 25, 1989; (11) Letter, with attachment, from G. 0. Kleier to S. F. Field, dated August 26, 1989; (12) Letter with attachments, from J. L. Kent to S. F. Field, dated August 31, 1989; and (13) Letter from J. L. Kent to S. F. Field, dated September 1, 1989; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF WEST COVINA, CALIFORNIA DOES RESOLVE, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. Pursuant to Section 11-25(d) of the Franchise Ordinance and Section 12 of the Franchise Agreement, the City Council of the City of West Covina finds that, based upon the representations contained in the documents submitted in support of the Transfer Application, Cencom has the financial responsibility to comply with the Franchise. SECTION 2. The transfer of the Franchise from Falcon to Cencom, a wholly -owned subsidiary of Cencom Cable Associates, Inc., and the purchase by Gaylord of 97% of the stock of Cencom, is hereby approved subject to the conditions set forth in Section 3, below. follows: SECTION 3. The conditions of approval are as A. Upon provision of a copy of this Resolution to Cencom, notice is hereby given to Cencom that the following documents constitute the "Franchise Documents" which, individually and collectively, represent the obligations imposed upon Cencom, which are collectively referred to as the "Franchise": (1) The Franchise Ordinance. (2) The Franchise Agreement. -3- • B. Cencom accepts and guarantees performance • of all obligations contained in the Franchise, the Tripartite Agreement, the Tower Lease and the Tower Sublease. C. Gaylord shall complete its stock purchase of Cencom consistent with the terms of the stock purchase described in the Transfer Documents. Cencom shall notify the City by letter directed to the City Clerk within forty-five (45) days of the date of this Resolution that the assignment from Falcon to Cencom has closed and that the Gaylord stock purchase has been consummated. D. Cencom Cable Associates, Inc., shall retain management and operational control of the West Covina cable television system operations after consummation of the Gaylord stock purchase. E. The City is presently served by a separate microwave receive hub site which serves the City of West Covina, the City of Walnut, and adjacent unincorporated territory. Cencom agrees that any consolidation or technical interconnection of said hub site, including the PEG channel(s), with any neighboring systems, will not occur without the prior review and approval of the City. F. Cencom agrees to and grants the City multiple yearly options to extend the Tripartite Agreement for the remainder of the term of the Franchise. G. Upon written request of the City, Cencom shall exercise its option(s) to extend the Tower Lease through the end of the term of the Franchise. H. Cencom shall perform the work set forth in Exhibit A (attached hereto) according to the construction schedule set forth in Exhibit A. Should Cencom fail to complete the work according to said construction schedule, it shall be liable for the penalties set forth at Section 11- 18(f)(1)d. and e. of the Franchise ordinance, which penalties the City may collect pursuant to Section 11-23(a) of the Franchise Ordinance. I. Within six (6) months of receiving a written request from the City, Cencom shall install a microwave or fiber optic link between West Covina -4- C J City Hall and the system headend located in the • City of West Covina at 1414 South Azusa Avenue. Failure to meet this construction schedule may result in the City imposing the penalties set forth at Section 11-18(f)(1)d. and e. of the Franchise Ordinance, which penalties the City may collect pursuant to Section 11-23(a) of the Franchise Ordinance. J. Cencom shall at all times maintain and operate the cable television system in compliance with the technical guidelines promulgated by the Federal Communications Commission (OFCCff) specifically, but not limited to, those set out in Part 76 of Code of Federal Registrar, Title 47. On or about the last working day of each quarter of the year, Cencom shall perform an FCC proof -of - performance test on the system. The test results shall be filed with the City. Cencom shall remedy all deficiencies identified in the test results as soon as it is reasonably practicable, but in no event later than ten (10) working days after receipt of the test results. The City Manager may grant extensions of time to remedy deficiencies identified in the test results for good cause shown; such consent shall not be unreasonably denied. K. The City shall not regulate Cencom's rates for any class of cable service during the time period that rate regulation is prohibited under the Federal Cable Communications Policy Act of 1984. The City reserves the right to reinstitute any rate regulation system permitted by law in the event that the deregulation of rates mandated by said Act or any successor or replacement thereto is ever repealed or held unconstitutional, or amended to allow for rates regulation. L. Cencom shall provide itemized bills to subscribers, distinctly showing charges for all classifications and tiers of programming and other services, including the charges for late payment, and for installation, disconnection, reconnection or modification of equipment. M. Cencom shall provide the City and subscribers at least sixty (60) days written notice prior to the implementation of changes in any of -5- • isits rates and charges which are not subject to regulation by the City. The notice shall include a statement of the reasons for the rate increase. In addition, Cencom shall provide the City and subscribers at least ninety (90) days written notice prior to the first increase of any rates and changes following the date of this Resolution. N. Cencom shall agree that the value of the cable television system for purposes of 'commercial impracticability' under Section 625 of the Federal Cable Communications Policy Act of 1984 shall be determined as of the day immediately preceding the Franchise transfer to Cencom, and shall not take into account the purchase price Cencom paid for the Franchise. O. Cencom shall file the security fund and insurance endorsements required by Section 11-23 of the Franchise Ordinance within 15 days of the date of this Resolution. All such documents shall be in a form acceptable to the City Attorney and in addition, the insurance endorsements shall be in the form of Exhibit B, attached hereto. P. Within five (5) days of the date of this Resolution, Falcon Communications, Inc., shall provide to the City a hold harmless agreement protecting the City from any claim Venture Communications may have against the City. The hold harmless agreement shall be in the form of Exhibit C, attached hereto. Q. Falcon shall pay to the City the dollar amount of Three Thousand Dollars ($3,000.00), which amount reflects the costs incurred by the City in processing the application for approval of the Franchise transfer which is the subject of this Resolution. SECTION 4. Failure of Cencom to comply with any material provision of this Resolution shall be grounds for the City to invoke any of the City's remedies under the Franchise, including but not limited to, Franchise termination. SECTION 5. Cencom shall, within ten (10) days after passage of this Resolution, file in the office of the City Clerk a written acceptance of this Resolution executed by Cencom in the form of Exhibit D, attached hereto. 0 sff/RES8055 Cencom, by executing and filing the Acceptance, guarantees • performance of all obligations hereunder. The Acceptance shall include a provision stating that Cencom recognizes that this Resolution does not affect the status of the Franchise as a grandfathered franchise within the meaning of the Federal "Cable Communications Policy Act of 1984" and further stating that Cencom shall not contend otherwise in any judicial or administrative proceeding. The Acceptance shall be notarized so as to indicate that the persons executing the Acceptance have the authority to bind Cencom. SECTION 6. By delivering a copy of this Resolution to Cencom, the City hereby gives notice that pursuant to Revenue and Taxation Code 9 107.6, the Franchise may create a possessory interest which, if created, may be subject to property taxation and that the Cencom may be subject to payment of property taxes levied on such interest. SECTION 7. The City Manager and the City Attorney, or their designees, are hereby authorized and empowered to execute any documents necessary, in their discretion, to implement the approvals contained herein. PASSED, APPROVED AND ADOPTED this 11th day of September 1989. AYES: Councilmembers: Tarozzi, McFadden, Manners, Lewis, Bacon NOES: Councilmembers: None ABSENT: Councilmembers: None ABSTAIN: Councilmembers: None ATTEST: CITY CLER -7- • Per Section 3. H and within 30 days of closure of the assignment (no later than November 1, 1989) the • installation of the following equipment be completed at the video origination point of the City channel. 1. A professional quality waveform monitor and vectorscope must be provided and installed (electrically) just prior to the modulator video input. 2. If not already provided, a professional quality audio level meter (VU) must be installed (electrically) just prior to the modulator audio input. 3. If not already provided, calibrated 0 dBm (1mV) 1Khz audio tone source must be available and installed (electrically) just prior to the modulator audio input, or at a spare audio mixer input. 4. No less than monthly, the operator must verify, and properly adjust if required, the following items at the modulator, along the return path, and at the subscriber network insertion point: a. Depth of modulation (87.5% with 140 IRE input) b. Audio deviation (25 Khz. with 0 dBm input) c. RF output (as required to meet necessary input levels to 1st return amplifier) d. Return amplifier cascade e. Subscriber network insertion point processor or demodulator/modulator levels 5. The operator must constantly stock sufficient spare parts to immediately replace any portion of its system connected with the City's channel in the event of a failure. 6. Sufficient numbers of technical staff must be trained in servicing and repairing components of the City channel, including the adjustments listed above, and the return carriage systems so as to insure that repair requests originated by the City shall be responded to, and completed by the operator within 4 hours of a demand service request originated by the City. 7. A service log must be kept in narrative form by the operator listing the nature and scope of demand and routine maintenance performed on the City's channel, and must be copied to the City on a quarterly basis. EXHIBIT A • EXHIBIT "B" • HOLD HARMLESS AGREEMENT In connection with the assignment of the existing cable television franchise from the City of West Covina by Falcon Cable TV of West Covina to Cencom Cable Television, Inc., Falcon Communications, the general partner of Falcon Cable TV of West Covina, hereby agrees to indemnify and hold harmless the City of West Covina and its officers and employees (hereinafter "City^) from and against any damages, losses and expenses, including attorneys fees, that may be incurred by the City, and determined to be due from the City to Venture Communications, Inc., as the limited partner of Falcon Cable TV of West Covina, by reason of the City's approval of the assignment of the cable television franchise. If the City becomes aware of any claim by Venture Communications, Inc. which the City believes to be covered by the provisions of this indemnity, as soon as is reasonable practicable, the City shall notify Falcon Communications, with all details of such claim, and if Falcon Communications agrees that the claim is covered by the indemnity, Falcon Communications shall have the option to assume responsibility for the handling of the claim, with EXHIBIT "C" 11 sff/RES8055 counsel of its choice, and at its expense, with authority to idispose of the claim by negotiation, settlement or litigation. DATED: , 1989 n n FALCON C�t�1[IN)jCATIONS STATE OF CALIFORNIA l COUNTY OF LOS ANGELES } ss. 111 On this 20th day of Sept. in the year A before me, the undersigned, a Notary Public in -j a and for said County and State, personally appeared Mar B. Nathanson personally known ^--^-^-_^--^- to me (or proved to me on the basis of satisfactory evidence) to be the OFFT1C�J., SEAL Chief Financial Officer- ��'iar, `�;� 1_ ��'�OiAr.i. tf�P� n3Ei!GXaliyKl#GXdGJ4d�7b�Ffii��€dGl�d4ii Xe`kr�t�}6?fs�et34 62%?Fy� \l :c'w�/ �,-c'•�v'�-../'cJ-"C2~�i=v^ Fry c� �::��n` esp!r s 0 ,t. 0, 1992 O e4ide➢fDC)J+aNDP 1' m ¢ S@ NXK of the corporation that executed the within Instrument, and O acknowledged to me that such corporation executed the within instru- r ment pursuant to its by-laws or a resolution of its board of directors. O f7 a t. 01 Signature �i7,2�tl-sa- n " N Cynthia M. Begin — Name (Typed or Printed) Notary Public in and for said County and State F 2467 R. 1 1 /82 (This area for official notarial Seal) JANET BERRY CITY CLERK APPROVED AS TO FORM: ' f � d t L LI. � • � EXHIBIT "C" 0 • Cencom Cable Television, Inc. ("Cencom"), hereby accepts each and every term of Resolution No. P401of the City of West Covina, entitled 'A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST COVINA APPROVING THE TRANSFER OF A FRANCHISE FOR A CABLE TELEVISION SYSTEM FROM FALCON CABLE T.V. OF WEST'COVINA.TO CENCOM CABLE TELEVISION, INC." Cencom, hereby stipulates that the adoption of Resolution No. 8401 does .not affect the status of the cable television franchise as a grandfathered franchise within the meaning of the Federal 'Cable Communications Policy Act of 19840 (47 United States Code §521, et sec.). Cencom, further stipulates that it will not contend that the cable television franchise is not a grandfathered franchise in any judicial or administrative proceeding. DATED: , 1989 FFICIALUXL­ �� JEANNIE THURN NOTARY PUSUFCALKORM LOS ANGELES COUNTY NY COMH. EXP. JUNE 18,1993 � s !1 CLERIK OF THE CITY OF WEST C O`i :-;A DO HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY Or'OftIGI;q DOCUMENT City Clerk, West Cori CENC B T VISION, INC. By: _ Name: ob J. Dw'ev1 Title: Ev1i r Vice W&(a By: _ Name: Title: EXHIBIT "'D"' El CENCOM CM,E TEI,M610N, INC. 14522 SOUTH OUTER 40 ROAD SUITE 300 CHESTERFIELD, MO 63017 (314) 576-4446 C ACCEPTANCE OF TRANSFER OF FRANCHISE Cencom Cable Television, Inc. ("Cencom"), hereby accepts each and every term of Resolution No. of the City of West Covina, entitled "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST COVINA APPROVING THE TRANSFER OF A FRANCHISE FOR A CABLE TELEVISION SYSTEM FROM FALCON CABLE T.V. OF WEST COVINA TO CENCOM CABLE TELEVISION, INC." Cencom, hereby stipulates that the adoption of Resolution No. 8 yo/ does not affect the status of the cable television franchise as a grandfathered franchise within the meaning of the Federal "Cable Communications Policy Act of 1984" (47 United States Code §521, et sea.). Cencom, further stipulates that it will not contend that the cable television franchise is not a grandfathered franchise in any judicial or administrative proceeding. DATED: dckber Y , 1989 [, NOTARY ] OIAU L L*BEAU NOTARY REM STATE OF ML4SOM ST. LOUIS COUNTY MY OOMMISSFON EXPIRES MLY 5,1992 CENCOM 9ABLE T LEVISION, INC. By: Z#I Name ul Title: it, s, n By: Name: .TeA, d: ezoats Title: (ilcc P/p3ic%t 0