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HomeMy WebLinkAboutResolution 84-326 N.C.S. 12/17/1984'~ ., . ReSOIUtIOrl N.o. 8 4 - 3 2.61. ~. S. of the City of Petaluma,. California DEC 17 1984 ~ ~ RESOLUTION AUT-HORIZI,NG THE MAYOR OR CITY MANAGER TO ENTER` INTO .AND EXECUTE AN AGREEMENT WITH TELE-VUE SYSTEM, INC. WHEREAS, Tele-Vue System, Inc. , doing business as VIACOM, has, pursuant to the provisions of Ordinance 159.5 N.C.S. requested a renewal of its non-exclusive franchise to operate a community antenna television system; and, WHEREAS, VIACOM representatives and regresen:tativies of the City of Petaluma ..have met to discuss' the renewal of the franchise. over a period of months; and, WHEREAS, the City of Petaluma and. VIACOM are in agreement concerning the terms and :conditions of the proposed franchise agreement, a copy of which is attached hereto as Exhibit "A" and incorporated herein; NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Petaluma hereby approves said franchise agreement .and authorizes the Mayor or City Manager to execute the .agreement on behalf of the City. Under the ,power and. authority conferred upon this Council by the Charter of said City. I hereby ceitify the foregoing Resolution was introduced,. and adopted by the Approved Council of :the Gity of .Petaluma at a (Regular) (t~J~~a) meeting fo on the ...17t_h......... day of ...December ................ 19:84., by the following vote: ty torney AYES: Tencer, Cavanagh, Balshaw, Vice Mayor Bond, Mayor Mattei NOES: ABSENT: ATTEST:. -Form CA 27/81 /~~~~ Mayor _ . _ , _ - Gouncil File .................................... ~. xo.........8..4..-.32.fi NCS FRA?~IC`IHISE AG=REE"~1ENT This A:greement~ ins made by and between t'he City of Petaluma, a municipal corporation;, hereinafter referred to ;as "City", and Tele-Vue Systems, .Inc. , a Washn~g~ton. Gorporation, ding business as VIACC)P;~ CA'BLEVISICN; and hereinafter, referred to as "VIAC'OM''! This Agreement .is. entered into with reference to the following facts: UIHEREAS, the ~ y h'a`s the authori y to sward, a. non-exclusive franchise to construct, operate: anal r.~a`n.tain a community antenna cable television system; t~,'HEREAS, VTACC?;M. has made ap,plicatign to the' Ctv to continue a franchise granted December ;23„ 1964, which.. expir..es December 2,2., 1984; PIHEREAS, VTACCTr4 has been a:wardec3 a r_ew franchise by the City evidenced by Resoltiti'on `No: 84-326 r1, C:.S,,, adopted December 17, t 1984; - NC~^l, THEREFORE'°°, it is agreed b.y ;anc~ between. the parties as follows.: 1. TERM CAF FRANCHISE. The- term of 'this franchise will begin :on December 2,3, 198.4;., atel will terminate on December, 2?., 1:99'4.. 2. TRANSFER O';E FP.ANC'HISE, This franchise may not be transferred withoua a Resolution 'of Approval $v the Petaluma City Council. However, su'eh approval will not be unreasonably withheld providing that th;e transferee can! satis~fac;torly dern.onstrate "to the City -that it can render proper and. efficient. CA'TV` .service comparable. to tha of VIACOM, 3. REVn:CATt01~? OF FR.AN.,CHI5E, A franchiGe_~ may be revoked for food cause if VI-ACQM has. fale~l to c~mnly with any provision. of Chapter 14:40 of the ,Petaluma b'[uncpal 'Cod`e ~ or has, by act or omission, violated any ter. rn ~ or cpnditiori of this a~reernent or permit issued' under Chapter 1.4.40. Thisi franchise may also be revoked if ten percent ('10$) of. VIACOI~~T'S subscriber-households/entities i~ri a ,petition requesting that the Petaluma. City Council revoke ~TIAC'Or;4'S franchise based upon failure of service as des'crhed. in the petition;. Prior' to revocation of the franchise; the City will hold a public hearing to consider ;if ,food ca-use exists. ~,rIACQM hall b.e afforded. at .least thirty (3'0) days written notice and shall be g"ive.n ar opportunity to ?~ec;ember l`T,, •1934: 1 of '$ pa~,es, ~- Ct.y of Petaluma Cable "?'elev'sion~ Franchise, $~;reement be heard., inc'ludin;g the r.igh;t fo introc~u,ce~ evidence and to question - wtnesses ., -. - The .Cty will]` n'ot revoke the :franchise :for good cause ur..less the City has advised VIAC.OP~I of the violations and af.for'ded it ninety (_9:0) days. tq cure the violations . Tf the City revo:k'es the, franchise, . it shall. issue a written decision stating the reasons therefor„ VIACO~,~; shall have 45. days to file an action conies in,g' the (qty's revocation, of the franchise, A11. factual and legal issues in any such action. shall be determined de novo in accordance with the ,rules of civil procedure ancd evidence applicable to breach of contract actions . 4. OPERATIONAL STANDARDS. The cable: "television system shall be installed and maintained in acc~r. dance with the accepted standards of the - industry as determined . by FCC Regulations, or' as defined below. In determining the satisfactory extent' of. such standards, the following will apply: A. The system .shall:. be installed using ali-band equipment capable .of passing the entire VHF and FM. sp.eet-rum,: and - it shall have the: further capability- of,; converting L1.HF ' for dietribu~fon to subscribers on the V.HF band; B T Ze 's~rstem,, as installed,. shall be capable ;of` passing standard color TV signals without the iritr.oduction of noticeable effects on .color fidelity and intelligence; C . The s~ls.tem_, an'd" all equipment. shall .be designed .anal rated. for twenty=four-hour-,ner-day continuous operation,; ~ . The system. signal-to-noise. ratio shall be not less than forty decibels; ' E: `H;um mo:dula~t-ion of p'eture, signal shall. be ess than five percent; . F. T'he system shall use components hawnv VS~N?~ -of 1.4 or less,• G . the rnas;ter antenna. to' be installed for' the cable television system shall be located 'at a point where the signal ,strength of the TV stations ~to. be received shall be no less than •five hundred r.~crov~lts ;per meter for low-band. channels (, 2 throuth 6 and not less than e'.ght hundred microvolts per r_ie~ter .for` hi~:h- band channel's ('7 through 13) for at_ least fifty percent DPCernb'er '17; l98'4 2 of $ gag-es Ctv of Petaluma Cable Television ..Franchise Ag.reement_ , of the time at a receivan~ antenri~a height. of thirty (30) feet above ~rour.d.; Each cable television sitbscr.,ber shall receive a rnnimurn signal streng;trh' of two thou'san'd (,2.0:00) microvolts, measured across 300 OHMS, as measured at the antenna terminals of the television se,t. 5. ACCE'S'S TO CAI~J~E SERVICE:. 'VIACOh~f steal-1 not deny anv group of potential residential cable subscribers access to cable service because of the income of. the residents . 6. ACCESS CF3_Al~?N°EJ~.. VIACO'M will proyi'de one `(1) channel for use as a public access channel:.: Ecru-ipment .located at V~A`C;OD:~f'S facility will be able to accommodate either' l!2" of 3./4" videotape formats. Schedule for playback will be 'determined by VIACnI~i and impl'eraented by VIAC4A4 personnel. VIACOM will schedule playbacks and"er 'this section based on the expressed desires of .the City whenever possible. A An inter-tie of. th_e Petaluma City Fire Stations will .be constructed. for distribution of °trainrrg; information and videotapes- on :the access channel. VIAG.O'M` will-also 'pr'ovide equipment to distribute. a lire audio signal of Petaluma .City Council meetings .on the access channel. VT,ACO?vi has the right toy use th-is access channel when n.ot in use by the public., or. the City of.~ Petaluma.. . VIACOM agrees to provide portable color produ,r_tion equipment (for the use of public access :channel users) . Equipmen will comply with VIACOM'S specifications and will consisa of one ,portable color video camera one 1/2" VH5 portable recorder _ or_e AC ,power adapter one battery° Aaclc one ligait p°a~k on_e l~;lZt kit one: tripod ' . one.. omn-,dir. ectional .microphone one directional mcro,phone one color .monitor The City wild determine. criteria -for use of portable video equipment. 7. TAPE ~ LIBRARY. VIACO'M will coordinate with other VIACOM cable systems t~ provide public access programming to-pes of interest to J~ecem~aer-- 17,. 1,984 3 of 8 .pa;g;es City of _.Petaluma. Cable Television Franchise Ar;r.eement r:esidPn~ts of the City. VIA~CO'~,~ will, work with the City in determnin,~ which pubhc~ access tapes .shat-1 lje kep-t iri a, Tape library. 8. ANNLIAT REPORT. V~IA~C,O'PiI shall. in the first quarter of each year, commenc'in~, in' I~98'6, re,~ort' t~ the, Petaluma City ..Council regardinv fhe .following topics: _. A) Current number of su°bscri'bers;, ~ number of ,secondary outlets , riles of cable system (aerial and; under°~r.,ound) . This. shall include a • comparison with the preceding year.. B) Rates - primary ('.aerial service, un~er.g.round service, needy senior eitiaens, bulk rate°si) ;secondary outlets, installation .fees. 'This shall include a .comparison with, the preceding ,year. . C) A review ~f the. financial statement .'as required by Section 14,40.Ob0 of the Petaluma IvlunciAal Code. P) Planned e~pansion~ and capital improvement progr. am . 9 FR.A1tiTCH'ISING FFE,S. VIACOP~` will pay :to' the Ci-ty, during the term of this franchise a sum equal to =five, percent o~f `VIA~;`On4!:S monthly °total gross receipts as defined in. Section 14.4.0.0.10 D. of. the Petaluma Municipal Code, starting• January 1, :1985. _ ' _, 10. SiJESC`RIBER` RATES. VIAC'OM may charge subscribers a monthly . race for' the reception of sex-vices receive'd' by means ~f its cable system:, VIA.C'O'N1 shall solely e?:etermine such rates provided:, .however, that for two years follourin°g the effective' date of this agreement. VIACnP'f shall adjust its. rates only in accor. dance ~.vith Fe~3eral :and. Sta±e aa.ws anc~ shall notify the City in writing thirty {'3.0) days i~ef~re any change ~n_ its rates. ' A special Sasc Service rate;,. for senior citizerns sixty-two years of age who receive S'SI or ~,iE.DI-CAL benefits- and are the principal owners or a tenants, wi=lT b:e ':maintainecJ. thxoug~hout fhe term .of~ t'his agreerienf according to the following 'sche'dules:' ' Y`ea~r 1, - 3,0° of ,regular. Basic Service Year- 2 - 3':5° of regular Basic .Service Year 3 - 400 of re±~ular Basic Service Year 4 - 45`0 of regular Basia Service Year 5-:10 - 5'0 0 of regular Basic Ser..vice . "'Basic Service°"' means the lowest level. of service offered: by VIACOA.9 to all subscribers. 1~e.cern>j`er 17, 198'4 4 ~ of $ names _, City of Petaluma Gable T.elevsiori.; Frarichse Agreement 11. S~ECUR~ITy R'E~UIREMEPIT„ VIAC.Or~~ ahall, prior to. the execution pf this Agreeri~ent,file w-th th.e, Cit<y Prlanager' and ate all times thereafter maintain in full fo_r. ce an:d effect for the term of thin franchise, at VIACOT~'S sole expense,, faithful performaic'e securit~r from: a company, authorized. to do business iri the State of :California in a form to •b.e approved by the City Attorney in the amount of $10,0[0, renewable ari~rually, -and. conditioned upor_ the faithful :performance of VIACO'M aril upon. 'the further condition that in the event VIA'COr.9 shall..faiT to comply wit~'~ any one or more of the provisions of Chapter 14.40' or. of the franc'lise issued to VIACOI~~ beretz;nder, there shall bey recoverable any 'damages 'o.r loss suffered by the city as a result thereof, `including the .fullamount of anv compensation, indemnification, or cost of removal or abandonment of a..nv ;property of - VIACO!vI as prescribed; hereby which may be in default., plus a reasonable allowance for attorney's ..fees and costs.., up to, the full amount of the security; such: condition 'to be . °a, continuing; obligation for the .duration of th's franchise and th'ereaf~ter .until VIACOM alas l'gitidated ...all of its obligations with the. City, that may have arisen from the; ;acceptance of this franchise by °VIACOA;4 or from its exercise of°, any privilege herein granted. If a bond. is provided, the bond, shall' provide that thirty days prior written _ .. notice of .intention nof. fo ;renew; cancellation, or material chant;,e be given to the City. Neither the ;Droys'ions of; .this section., ',any .security accepted by the ~itv pursuant thereto.,, nor an"y :damages recovered by 'the City thereund'e.r shall be construed to, excuse faithful' performance by VIAC01~1 .or limit the liability of VIACO'~~` under this franchise for' damages,. •• 12;. LIARILhTY-- INSURANCE REQUIR~L)' VIA~C0;1~4. shall, at al:l ,times during; the existence of this .franchise, fur-nish• to the City' T:4.anager at i'ts own cost andexpense a public liability in•sur.ance no'1-icy, from a ;company approved' by the. City's P~sk !~'.~tanagemerit Officer--, :in a form.. satisfactor~r to. the City At~torne,y, to protect° against loss from all liability incur-red. while working under the provisions of the franchise a-nd `imposed by law for damages on accou'nt' of bodily :i~rij;ury, iriclu~ding death ther.efr,om, suffered or alleged. to `h.e' s.uffer:ed by any persons whomsoever, resulting directly- or indr. ectly ,from any act or acf`ity of VIACOi~i,, its. subcontrar-__;tors or any person actin;,'g fc~r VTACO'M or .under. its direction or control, and .also to protect against to"ss., from liability imposed il?y law for damages' t:o any Dec.errmber 17„ 193:4 'S of. $ p,a~es City of Petaluma _ Cable Te1_evsibn Fr.anc'hiseAgreement ` pr. operty of any per. s'on eause,d directly or indirectly by or from acts or activities of VIA.GOI~-1, its subcontractors, or anw ;p.er.sor. acting for VIA(;On~1, or. under its cor_trol or direction. Such public liability insurance shall include the follov~Jine; 1) comprehensive general 1'abilty (broad form); 2) XCU coverage; 3) property damage (broad form) ; 4) contractual liability _ ._ coverage; 5) protective; aabli,ty against claims arising from subcontractor; and, 6) products and coiimpleted_ operations. Such insurance shall k~e maintained in the following; minimum amount"s ;~ Eodily injury : $' 500„ 000 .ea. person $1,,.OOO,Q00. ea. occurrence Aggregate pr.,o'd.ucts $1,000,000 completed operations . Property Damage: $1,000,000 ea. occurrence $l, 00'0 , 00:0 :agg:xeg_ate I3. AL1T0'D~OBTIE INSURANCE. VIACOM . sfiall' ::maintain at their sore expense, throughout- `the 'terra of this franchise; public liability and property damage i.ns,ura.nce for automobile .equipment whether owned. by VIACOI~4 or its employees performing operations under this franchise with coverage limits .of not less then $?„OOO,OOq combined sin~l'e lunit., The City .of Petaluma, its officers, agents, employees and. representatives shall be named additioral :in'sured. .14. EV,ID,ENCE OF TIVSLJRANCF-. The pol_c'es mentioned'. in paragraphs 12 and 13 shall be primary and shall name ~ the, .City,,, its .officers, agents, employees anel repreaentatives as additional. insureds. A Certificate of Insurance, or an appropriate binder ,of insurance coverage, evidencinp~ the insurar..ce coverages,, witlh a; company accep .able to the City's Risk I~lariagement Officer, hall be submi-tted to the City Manager. b:y VIACOD prior to execu-ton of t1'is agree:men"t . 15;. 1\?OTICE TO CITY; IN,S'URANGE COV~ERtAGE GH;ANGE. ~ The terms of the ,insurance ;policy or policies issued to prov~de the at~ove insurance coverage shall provide that said insura;n,ce policy may not be cancelled or the terms materially changed therein.:, without thirty (3Q) days prior written notice fo the City` for :any cause 'for other -than :nonpayment of premiur?m.. In the event of nonp;ayment:; notices shall be given ten (T0) ,days prior to. the effective date of cancehation. VIACOM shall,. prior to thee. can_cellat-ion date, or within twenty (20) days o.f notice of material changes in the terrors of. ;?~ecember .'T, 19.84, 6 ;of 8 pages Ciay .of Petaluma: C`ab]e T'elevi'sion Franchise .A~reernent - ~ covera•ge, submit' to the City 11'•lariager new evidence of in ura.:nce in the amounts heretofore e, st:ablished-. _ ,-. 16. T1~TD.EMIV:IFTGAT;TON. VIACO'f~l, agrees to :accept .all responsibility .for doss or .dama~g;e to :any- ;rierson or .entity, anc3 to 'indemnify, hold. harmless and defend City; its agents, officials and. emp ogees from and against any . and all acfions, claims., lama„ges,, disabilities or expenses, including attorneys' fees, experts! _feees and wines costs that may be asserted, by any' per. son or entity, including VIACCIM`., arising but of , the activities. of VIACO'A~i under this franchise, . itsagents, subcontractors, .and employees, except. if there is wilful misconduct' .or active negligence on the part o.f. the ' City, .its ;agents, officials and employees. 17. IN~SPECTIC?N O:F PRCQPERTY AND RECORDS. At all reasonable ' P Y .p , . l y tunes VIACOM shall ermit any dul au:thorrzed re. ~:resentative of the C'it to~ examine all ;property of VIACOM, together with' any appurtenant property of VIACOM situated within or without the; .C,ty, and to examine acrd trans.crihe any grid .a11 :maps and other rer-__ords:. kept or cnaintaine;d by VIAGOII'~t or under .its control which deal with. fhe. operations, affairs„ transactions or property of VIAC`C:M with respect: to the, CATV system in the. `.City. VIAC€~M shah;, at .all times, make and keen in the City .full and. complete plans and records, showing the exact location of all CATV system equipment installed or in .use in_ stree.ts•., alleys end ,public places in the City. VIACC?T,~ shall file with the City 'Engineer,,. on or before the last day in March of each year, a. current map or se.t of maps drawn to scale ;showing' all CATV system equipment .installed ~`in streets,- alleys and public - places of the City durn~g~ 'fhe previous year.. l',8,. FI?~ING R'EQUIR`EMENTS. It is expressly understood.. that. VIAC(~~1'~S franchise will rn~t take effect. until VTAC'Oh~1 provides the C'ity' Manager with .the: secu-rty„ insurance policies, certificates cif insurance or ' binders of in urace coverage. ,required herein .: 1.9 .: A~IODIFICATION. nF FRANCHISE' OB~LI•GATION, This Agreement r?may be modified, p'rovidirig such modification -is in -writing and signed bv. both parties.. When 'app icable, Section .62:5 of the Cable Communications Policy Act of 1''984 sha.l apply, ?.'0. ATTO;R1ViEYS' F.EFS.If either' parf~j !~ecomes involved in litigation arising; nut. of this agreement or. the performance thereof, `the Court in such ' litigation, or in a separate suit:., shell award, reasonable costs and. expenses, ?Jecember 17, 198'4' 7 of $ pages C'-ty of Petaluma Cable Television Franchises Agreement including attoirney's fees to t'he party°~ju"s:flw entitle? thereto. Tn avc~arding attorneys' fees, the Court wili~ no;t be bound's by any 'Court':.fee schedule, but shall, if it is in the interest of jizs,tice to. do so, award the full amount: of costs,, expenses;. and `at:torney's fees paid' or ,iricurre,d in good faith,. subject to' the provisions of_ the Cable Comrnunicatgns .Policy' Act of. 1984. Dated: December 17'„ 1'9S`4., :CITY OF PET,~.LLT.MA,, a rri,uncipal ., corr~orati~j.. ~; s I~dayor or ~Ci:' A-lanage;r ~ 1 Approved: ~;~ Fi Dir. / ;Auditor FRAPJCHISE AG,REEr~FNT LAw2 12/17/4 VIACOM Edward A. Beene t Vice President/Tele-Vue Systems, Inc.. Name and Title Pr. int) Signature , ATT~E;ST; ,, City Clerk annroved City ~At€orney December T7; 1984, 8 of 8 pages .