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HomeMy WebLinkAboutResolution No. 8710sff/RES8233 • RESOLUTION NO. 8710 ❑1 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA REGARDING THE TRANSFER OF THE CITY CABLE TELEVISION SYSTEM FRANCHISE WHEREAS, on May 6, 1974, the City Council of the City of Azusa adopted Ordinance No. 1077 providing for the granting of cable television franchises; WHEREAS, on December 2, 1974, pursuant to Ordinance No. 1077, the City Council of the City of Azusa adopted Ordinance No. 1092 granting to Cable Service of Azusa, Inc. a cable television franchise to construct, operate and maintain a cable television system within the City of Azusa (the "Franchise"); WHEREAS, on October 4, 1982, pursuant to Resolution No. 7187, the City Council of the City of Azusa consented to the transfer of the Franchise from Cable Service of Azusa to Jones Intercable, Inc., general partner and nominee, for Cable TV Fund 10, a limited partnership; WHEREAS, on July 5, 1983, pursuant to Resolution No. 7296, the City Council of the City of Azusa consented to change the name of the Franchise holder to Cable TV Fund 10- C Ltd., a Colorado limited partnership ("Fund 10-C"); WHEREAS, on December 21, 1987, pursuant to Resolution No. 8358, the City Council of the City of Azusa consented to the transfer of the Franchise from Fund 10-C to Falcon Cable Media, L.P. ("Falcon") and concurrently amended the Franchise pursuant to Ordinance No. 2362; WHEREAS, Falcon has requested that the City approve transfer of the Franchise from Falcon to Falcon Communications, and then from Falcon Communications to Cencom Cable Television, Inc. ("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, -1- sff/RES8233 s e which are on file in the office of the City Clerk and are collectively referred to as the ffTransfer Documents^: (1) Report regarding Cencom Cable Television, Inc., dated June, 1989; (2) Report regarding Cencom Cable Television, Inc. regarding Falcon Cable Media/Azusa County Franchise Area, dated August 4, 1989; (3) Report regarding Cencom Cable Television, Inc. submitted to City of Azusa, dated August 18, 1989; (4) Letter from S.F. Field to J. Johnson, dated August 21, 1989; (5) Report regarding Cencom Cable Television, Inc., submitted to City of Azusa, dated August 31, 1989; (6) Letter with attachments, from J.L. Kent to S. F. Field, dated August 31, 1989; (7) Letter from J.L. Kent to S.F. Field, dated September 1, 1989; and (8) Letter from J. Brooks to F. Diaz dated September 13, 1989; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA DOES RESOLVE, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. Pursuant to Section 14.06.04 of Ordinance No. 1077, the City Council of the City of Azusa finds that, based upon the representations contained in the Transfer Documents, Cencom has the financial responsibility to comply with the Franchise. SECTION 2. The transfer of the Franchise from Falcon to Falcon Communications, and then from Falcon Communications to Cencom, a wholly-owned subsidiary of Cencom Cable Associates, Inc., and the purchase by Gaylord or 97% of the stock of Cencom, are hereby approved subject to the conditions set forth in Section 3, below. SECTION 3. The conditions of approval are as follows: -2- sff/RES8233 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 the Cencom, which are collectively referred to as the "Franchise": (1) Azusa Ordinance No. 1077; (2) Azusa Ordinance No. 1092; (3) Azusa Ordinance No. 2362; (4) Azusa Resolution No. 8358. B. Cencom accepts and guarantees performance of all obligations contained in the Franchise. C. Cencom shall provide, free of charge, public, educational and governmental ("PEG") programming at a level at least equivalent to that level Falcon has maintained since it obtained the Franchise. Said programming level includes, but is not limited to: (1) Live cablecasting of all City Council meetings; (2) Cablecasting up to a maximum of ten major, single day City events per year, upon City request provided at least fourteen days before the event (e.g., "Golden Days" Parade, Festival de Azusa); (3) Live cablecasting of up to a maximum of 18 City Commission meetings per year, upon City request provided at least seven days prior to the meeting; (4) Rebroadcasting all Council and Commission meetings at least four times during the month following the meeting during "prime time" viewing hours; (5) Rebroadcasting all special events at least three times during the month following the event during "prime time" viewing hours; -3- sff/RES8233 • (6) Cablecasting up to one interview per month with City officials or civic leaders, upon City request provided at least ten days before the interview, and rebroadcasting the interview at least three times during the month following the interview during prime time; D. Falco City the dollar ($3,000.00), wh incurred by the for approval of subject of this 1 Communications shall pay to the amount of Three Thousand Dollars ich amount reflects the costs City in processing the application the Franchise transfer which is the Resolution. E. 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. F. Cencom Cable Associates, Inc., shall retain management and operational control of the Azusa cable television system operations after consummation of the Gaylord stock purchase. G. One channel of the cable television system shall be dedicated to PEG programming. H. The City is presently served by a separate microwave receive hub site which serves the City of Azusa 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. I. Falcon presently provides and serves the City with two PEG access studios and a mobil van ("Studio"). Cencom agrees that it will not extend the service area of the Studio to any other cities or communities without the prior review and approval of the City of Azusa. J. Cencom shall complete and deliver to the City an economic and technical feasibility study on ae sff/RES8233 • C adding pay-per-view and upgrading the cable television system to a 54 channel (450 Mhz) system no later than six months after the date of this Resolution. Upon completion of the study, Cencom shall negotiate in good faith with the City on implementing said upgrade. K. If Cencom elects to indicate the franchise fee as a separate item on subscriber billings, it shall also itemize, at a minimum, the five cost items, representing the largest recurring operational costs to Cencom. L. 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. M. 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. N. Cencom shall provide the City and subscribers at least sixty (60) days written notice prior to the implementation of changes in any of its 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. 0. 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 Q.� sff/RES8233 S C into account the purchase price Cencom paid for the Franchise. P. Cencom shall file the performance bond and insurance endorsements required by Chapter 14.08 of Ordinance No. 1077 concurrently with the closing of the Franchise transfer. 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. Q. Cencom shall at all times maintain and operate the cable television system in compliance with the technical guidelines promulgated by the Federal Communications Commission ("FCC") 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. 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, concurrently with the closing of the Franchise transfer, file in the office of the City Clerk a written acceptance of this Resolution executed by Cencom in the form of Exhibit A, attached hereto. 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 sff/RES8233 • e 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 § 107.6, the Franchise may create a possessory interest which, if created, may be subject to property taxation and that Cencom may be subject to payment of property taxes levied on such interest. SECTION 7. The City Administrator 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 18th day of SPp tPmlhar , 1989. AYES: COUNCILMEMBERS: AVILA, STEMRICH, LATTA, MOSES NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NARANJO ABSTAIN: COUNCILMEMBERS: NONE ATTEST., CITY CLERK MAYOR, CITY OF AZU A, CALIFORNIA -7- sff/RES8233 EXHIBIT "B" E • GENERAL LIABILITY ENDORSEMENT ("the Agency") ATTN: A. POLICY INFORMATION 1. Insurance Company_ 2. Policy Term (From) _ 3. Named Insured 4. Address of Named Insured Endorsement# Policy Number (To) ; Endorsement Effective Date 5. Limit of Liability Any One Occurrence/Aggregate $ 6. Deductible or Self -Insured Retention (Nil unless otherwise specified): 7. Coverage is equivalent to: Comprehensive General Liability form GL0002 (Ed 1/73) Commercial General Liability "occurrence" form CG000I Commercial General Liability "claims -made" form CGOD02 8. Bodily Injury and Property Damage Coverage is: "claims -made" "occurrence" If claims -made. the retroactive date is Note: The Agency's standard insurance requirements specify "occurrence" coverage. "Claims - made" coverage requires special approval. B. POLICY AMENDMENTS This endorsement is issued in consideration of the policy premium. Notwithstanding any inconsistent statement in the policy to which this endorsement is attached or any other endorsement attached thereto, it is agreed as follows: 1. INSURED. The Agency, its elected or appointed officers, officials, employees and volunteers are included as insureds with regard to damages and defense of claims arising from: (a) activities performed by or on behalf of the Named Insured, (b) products and completed operations of the Named Insured, or (c) premises owned, leased or used by the Named Insured. 2. CONTRIBUTION NOT REQUIRED. As respects: (a) work performed by the Named Insured for or on behalf of the Agency; or (b) products sold by the Named Insured to the Agency; or (c) premises leased by the Named Insured from the Agency, the insurance afforded by this policy shall be primary insurance as respects the Agency, its elected or appointed officers, officials, employees or volunteers; or stand in an unbroken chain of coverage excess of the Named Insured's scheduled underlying primary coverage. In either event, any other insurance maintained by the Agency, its elected or appointed officers, officials, employees or volunteers shall be in excess of this insurance and shall not contribute with it. ® 0 3. SCOPE OF COVERAGE. This policy, if primary, affords coverage at least as broad as: (I) Insurance Services Office form number GL 0002 (Ed. 1/73), Comprehensive General liability Insurance and Insurance Services Office form number GL 0404 Broad Form comprehensive General Liability endorsement; or (2) Insurance Services Office Commercial General Liability Coverage, "occurrence" form CG 0001 or "claims -made" form CG 0002; or (3) If excess, affords coverage which is at least as broad as the primary insurance forms referenced in the preceding sections (1) and (2). 4. SEVERABILITY OF INTEREST. The insurance afforded by this policy applies separately to each insured who is seeking coverage or against whom a claim is made or a suit is brought, except with respects to the Company's limit of liabihty. 5. PROVISIONS REGARDING THE INSURED'S DUTIES AFTER ACCIDENT OR LOSS. Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the Agency, its elected or appointed officers, officials, employees or volunteers. 6. CANCELLATION NOTICE. The insurance afforded by this policy shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thin), (30) days' prior written notice by certified mail return receipt requested has been given to the Agency. Such notice shall be addressed as shown in the heading of this endorsement. C. INCIDENT AND CLAIM REPORTING PROCEDURE Incidents and claims are to be reported to the insurer at: W"V (Tide) (Department) (Company) (Street Address) (City) (State) (Zip Code) (Telephone Number) D. SIGNATURE OF INSURER OR AUTHORIZED REPRESENTATIVE OF THE INSURER I, (prinVtype name), warrant that I have authority to bind the below listed insurance company and by my signature hereon do so bind this company. ORGANIZATION: SIGNATURE OF AUTHORIZED REPRESENTATIVE (original signature required on endorsement furnished to the Agency) TITLE: ADDRESS: TELEPHONE: • AUTOMOBILE LIABILITY ENDORSEMENT ("the Agency") ATTN: A. POLICY INFORMATION 1. Insurance Company 2. Policy Term (From) 3. Named Insured 4. Address of Named Insured Endorsement# Policy Number (To) ; Endorsement Effective Date 5. Limit of Liability Any One Occurrence/Aggregate $ 6. Deductible or Self -Insured Retention (Nil unless otherwise specified): POLICY AMENDMENTS This endorsement is issued in consideration of the policy premium. Notwithstanding any inconsistent statement in the policy to which this endorsement is attached or any other endorsement attached thereto, it is agreed as follows: INSURED. The Agency, its elected or appointed officers, officials, employees and volunteers are included as insureds with regard to damages and defense of claims arising from: the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Named Insured, regardless of whether liability is attributable to the Named Insured or a combination of the Named Insured and the Agency, its elected or appointed officers, officials, employees or volunteers. 2. CONTRLBUTION NOT REQUIRED. As respects work performed by the Named Insured for or on behalf of the Agency, the insurance afforded by this policy shall: (a) be primary insurance as respects the Agency, its elected or appointed officers, officials, employees or volunteers; or (b) stand in a unbroken chain of coverage excess of the Named Insured's primary coverage. In either event, any other insurance maintained by the Agency, its elected or appointed officers, officials, employees or volunteers shall be in excess of this insurance and shall not contribute with it. 3. SCOPE OF COVERAGE. This policy, if primary, affords coverage to the Named Insured at least as broad as: (1) Insurance Services Office form number CA 0001 (Ed. 1/78), Code 1 ("any auto") an endorsement CA 0025. (2) If excess, affords coverage which is at least as broad as the primary insurance forms referenced in the preceding section (1). 4. SEVERABILITY OF INTEREST. The insurance afforded by this policy applies separateiy to each insured who is seeking coverage or against whom a claim is made or a suit is brought, except with respect to the Company's limit of liability. S. PROVISIONS REGARDING THE INSURED'S DUTIES AFTER ACCIDENT OR LOSS. Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the Agency, its elected or appointed officers, officials, employees or volunteers. 6. CANCELLATION NOTICE. The insurance afforded by this policy shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail return receipt requested has been given to the Agency. Such notice shall be addressed as shown in the heading of this endorsement. C. INCIDENT AND CLAIM REPORTING PROCEDURE Incidents and claims are to be reported to the insurer at: ATTN: (Title) (Department) (Company) (Street Address) (City) (State) (Zip Code) (Telephone Number) D. SIGNATURE OF INSURER OR AUTHORIZED REPRESENTATIVE OF THE INSURER I, (print/typc name), warrant that I have authority to bind the below listed insurance company and by my signature hereon do so bind this company. SIGNATURE OF AUTHORIZED REPRESENTATIVE (original signature required on endorsement furnished to the Agency) ORGANIZATION: ADDRESS: TELEPHONE: ( )