HomeMy WebLinkAbout86-18 6
7
8
9
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
25
26
27
28
RESOLUTION NO. 86-18
A RESOLUTION OF THE CITY OF UKIAH GRANTING TO
GROUP W. CABLE, INC. THE NONEXCLUSIVE RIGHT,
PRIVILEGE, AND FRANCHISE TO INSTALL AND OPERATE
A CABLE TELEVISION SYSTEM WITHIN THE CITY OF UKIAH
The City of Ukiah (hereafter "Grantor") resolves as follows:
Section 1. Citation of Resolution
This resolution may be cited as the "Group W Cable, Inc. Franchise
Resolution."
Section 2. Rules of Construction
This resolution shall be construed liberally in order to effectuate
its purpose. Unless otherwise specifically prescribed in this resolution,
the following provisions shall govern its interpretation and construction:
(a) Time is of the essence of this resolution. Group W Cable, Inc.
(hereafter "Grantee") shall not be relieved of its obligation to comply
promptly with any provision of this resolution by any failure of Grantor
to enforce prompt compliance with any of its provisions.
(b) Any right or power conferred, or duty imposed upon any officer,
employee, department of Commission of Grantor is subject to transfer by
operation of law to any other officer, employee, department or Commission
of Grantor.
(c) This resolution does not relieve Grantee of any requirement of
any ordinance, rule, regulation, or specification of Grantor now in
effect, including, but not limited to, any requirement relating to street
work, street excavation permits, undergrounding of utility facilities,
including cable communications facilities, or the use, removal or
relocation of property in streets. If the provisions of this resolution
1
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
shall conflict with any other ordinance, rule, regulation, or
specification of Grantor, the provisions of this resolution shall take
precedence.
(d) Provisions of this resolution shall be construed in accordance
with Article 2 of the Ukiah Municipal Code, hereafter the "Cable
Ordinance."
(e) This resolution shall not be construed to limit or restrict the
otherwise lawful exercise of the police power by the Grantor.
Section 3. Purpose and Intent
(a) It is the purpose and intent of this resolution to approve the
grant of a nonexclusive franchise to Grantee to engage in the business of
operating a Cable Communications System (hereafter "System") in the City
upon terms and conditions of this resolution, and subject to the
provisions of the Cable Ordinance and the procedure therein for granting
franchises.
(b) Acceptance of the terms and conditions of a franchise under the
Cable Ordinance shall not constitute, or be deemed to constitute, a
waiver, either expressly or impliedly, by the grantee of any
constitutional or legal rights which it has or may be subsequently
determined to have, either by subsequent legislation or court decisions.
Section 4. Conditions Precedent and Duration of Grant
(a) Prior to consideration of this resolution pursuant to the
procedures set forth in Section 1873 C of the Cable Ordinance, Grantee
shall submit an application for renewal of franchise according to the
requirements of Section 1873 B of the Cable Ordinance, except that, for
the purposes of this application only, Grantee shall be relieved of
- 2 -
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
3
4
providing the information required of an applicant for renewal by Section
1873 B(2) of the Cable Ordinance.
(b) This franchise shall become effective on the thirtieth (30th)
day after the passage of this resolution provided that, prior to such
date, Grantee has 1) filed with the City Clerk a written instrument,
addressed to the Grantor accepting the franchise pursuant to Section 1873
D of the Cable Ordinance, 2) deposited with the Grantor a letter of credit
in the amount of Thirty Thousand Dollars ($30,000.00) pursuant to Section
1872 D(3) of the Cable Ordinance, 3) presented evidence, satisfactory to
the City Attorney, of the insurance required under Section 1872 D(6) of
the Cable Ordinance, and 4) made such payment to the Grantor as may be
required under Section 1873 B(2) of the Cable Ordinance to cover Grantor's
costs of granting the application for this franchise, not to exceed
Thirty-Five Thousand Dollars ($35,000.00) for costs of the Mendocino
County Consortium as a whole, providing, however, that Fifteen Thousand
Dollars ($15,000.00) previously paid by Group W, Inc. to the Mendocino
County Consortium shall be applied as a credit in calculating such
Thirty-Five Thousand Dollar ($35,000.00) limit.
(c) The term of this franchise shall be fifteen (15) years,
commencing on the effective date of the franchise as provided in Section
15 of this resolution.
Section 5. System Characteristics
(a) Within 450 calendar days of the effective date of this
resolution, the System shall have a capacity of not less than thirty-five
(35) video channels, as defined in the Cable Ordinance.
(b) Within 450 calendar days of the effective date of this
resolution, the System shall activate not less than thirty-three (33) of
-3 -
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the thirty-five (35) video channels, according to the general programming
requirements set forth in Section 6 below.
(c) In addition to the above video channels, the system shall
provide not less than nine (9) activated FM audio signals within 450
calendar days of the effective date of this resolution.
(d) Within 450 calendar days of the effective date of this
resolution, the technical configuration and equipment of the system shall
be as set forth in Exhibit A attached, or any other equipment of
comparable or better quality and capability. Grantee shall use its best
efforts to meet the system performance standards listed in Exhibit A,
however, the system shall meet the technical standards established by the
Federal Communications Commission, whether such technical standards be
denominated rules, regulations or guidelines.
(e) The time limits set forth in this Section shall supercede the
time limits for Permits and Construction contained in Section 4.04.140 of
the Cable Ordinance.
Section 6. General Programming Category Requirements
(a) Of the thirty-three activated video channels the following
general categories of programming shall be represented by stations with
formats in which the following types of programming predominate, unless
provision of such category of programming shall become technically or
economically infeasible: local origination, public television,
children's, weather, news, sports, national public affairs, business,
spanish language, music video, health, cultural events, community bulletin
board and pay television.
(b) Of the EM audio channels, the following general categories of
programming shall be represented by stations with formats in which the
- 4-
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
following types of programming predominate, unless provision of such
category of programming shall become technically or economically
infeasible: public radio, classical, easy listening, and pop.
(c) Grantor acknowledges Grantee's right to determine the cable
television programming provided under the Cable Ordinance and this
agreement subject only to the provisions of this agreement for activated
channels, general programming categories and access channels.
Section 7. Public, Educational, Governmental Access Channels,
Services, Facilities and Equipment
(a) Grantee shall provide for the purposes of capital expenditures
in aid of public and educational access programming Twenty Thousand
Dollars ($20,000.00), to be disbursed by Grantee to one or more nonprofit
entities designated by Grantor within six months of the effective date of
this agreement. Grantee shall provide directly to Grantor for the purpose
of capital expenditures in aid of municipal access programming Nineteen
Thousand Dollars ($19,000.00).
(b) Grantee shall provide a Repair and Maintenance Fund for
facilities and equipment beginning in the second year of this franchise
and continuing to the fifteenth year. The aggregate amount of such fund
shall be Eighteen Thousand, Two Hundred Dollars ($18,200.00). The fund
shall be disbursable for repair or maintenance of any telecommunications
equipment or facilities owned or leased by any non-profit entity or
governmental agency designated by Grantor as a public, educational or
governmental access programming provider under subsection (a) of this
section. The repair and maintenance fund shall be available in annual
amounts of One Thousand, Three Hundred Dollars ($1,300.00). Any portion
- 5-
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of the annual funding not used in any year shall accumulate and be
available in subsequent years.
(c) Grantee shall dedicate appropriate bandwidth for one video
channel for all the cable television franchises held by Grantee in
Mendocino County, including that of Grantor, for public, educational and
governmental access use by non-profit or governmental entities designated
pursuant to subsection (a) of this section. If such video channel
achieves sixty (60) hours per week of nonduplicative video programming,
excluding hours programmed with alpha-numeric displays, then Group W.
Cable, Inc. shall provide on request up to thirty (30) hours per week on a
second video channel for access programming. Such request shall be made
in writing by at least two designated access entities six (6) months
before the date on which the entities desire the additional access
capacity and shall specify amount of time and hours desired and shall
include program logs establishing the entitlement to such additional
access capacity.
(d) Grantee shall dedicate appropriate bandwidth for one FM audio
channel for all the cable television franchises held by Grantee in
Mendocino County, including that of Grantor, for public, educational and
governmental access programming. Nothing herein shall require Grantee to
provide additional funds, facilities, equipment or services for such audio
channel.
(e) Grantee shall provide to Grantor, without charge, appropriate
bandwidth to carry one upstream/return video channel to serve each of
those locations specified in Exhibit B attached.
(f) Grantee shall provide without charge downstream cable
connections (up to 200 foot aerial drop to public buildings and 150 foot
-6-
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
25
26
27
28
aerial to all other sites; undergrounding costs to be borne by recipient)
to those schools, public buildings, and institutions specified in Exhibit
C attached. Grantee shall provide without charge to those locations
designated as government buildings in Exhibit C free cable television
service, excluding pay television channels, and FM audio service to the
number of outlets at each such location specified in Exhibit C. Grantee
shall provide to all other locations specified in Exhibit C the following
services: any cable television outlets additional to the first outlet for
a price equal to the cost to Grantee of installing such outlets, and cable
television service and FM audio service for all outlets at each location
for the price of the same service to a single outlet at such location.
(g) Grantee shall provide technical assistance to any designated
access entity under this section in the design and installation of access
facilities and equipment, provided, however, that such assistance will be
of a temporary nature on an as needed basis and will not require an
ongoing commitment of Grantee's personnel or resources. Provided further
that such obligation to provide technical assistance shall cease two (2)
years after the effective date of this agreement.
Section 8. Rates
Grantor shall not regulate rates for cable television service during
the effective period of this franchise.
Section 9. Franchise Fee
(a) By acceptance of this franchise, Grantee agrees to pay,
quarterly, to Grantor in lawful money of the United States five percent
(5%) of the Total Gross Revenues as that term is defined in Section 1870 B
of the Cable Ordinance collected or received, or in any manner gained or
derived by Grantee in each calendar quarter, or portion thereof, during
- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
25
26
27
28
the term of this franchise. Grantor may, at its sole discretion, reduce
such fee to a lower amount in order to ensure consistency with State or
Federal law.
(b) Within forty-five (45) days of the last day of each calendar
quarter during the term of this franchise and within forty-five (45) days
after the expiration of the term of this franchise, Grantee shall:
(1) File a statement in duplicate, verified by Grantee or by an
officer or other duly authorized representative of Grantee showing the
facts material to a determination of the amount due for the previous
calendar quarter and completion of term.
(2) Pay to the City Treasurer the money required to be paid by
Grantee to Grantor upon the basis of the data set forth in the quarterly
and final statements required in Paragraph (b)(1).
(c) In the event Grantee fails to make the payments for this
franchise on or before the dates due as hereinabove provided, Grantee
shall pay as additional consideration a sum of money equal to two percent
(2%) of the amount due for each month or fraction thereof during which the
payment is due and unpaid, as interest and for loss of use of the money
due.
(d) The late charge set forth in Paragraph (d) of this section is
not exclusive, and does not preclude action by Grantor under the
provisions of Section 1872 C of the Cable Ordinance in the event that
payments become overdue by more than sixty (60) days.
Section 10. Service Area
Grantee shall provide service to all areas of the City.
Section 11. Limitation on Liquidated Damages
- 8-
6
7
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Notwithstanding the provisions of Section 1872 C (3)(c)(4) of the
Cable Ordinance, Grantee shall not be liable for liquidated damages in the
aggregate of more than Ten ThouSand Dollars ($10,000.00) per month to this
or any other Grantor for a failure of performance that is common to more
than one jurisdiction sharing a single headend. Liquidated damages, if
appropriate, shall be prorated among the respective franchising entities
for such failures of performance as the franchising entities shall
determine.
Section 12. Assignment of Franchise
If Group W Cable, Inc., or substantially all of its assets, is sold,
transferred, or assigned in its entirety, and the buyer, transferree or
assignee affirms in writing, by an officer authorized to so act, that it
accepts any and all obligations, responsibilities and commitments of
Grantee under the Cable Ordinance and this franchise agreement, then
Grantee shall be relieved of the requirement of Section 1874 A 4) of the
Cable Ordinance to obtain the prior written consent of Grantor for such
sale, transfer or assignment.
Section 13. Severability
If any section, subsection, sentence, clause or phrase of this
resolution is for any reason held illegal, invalid or unconstitutional by
the decision of any court of competent jurisdiction, such decision shall
not affect the validity of the remaining portions hereof. Grantor hereby
declares that it would have passed this Resolution irrespective of the
fact that any one or more sections, subsections, sentences, clauses, or
phrases be declared illegal, invalid or unconstitutional. The invalidity
of any portion of this resolution shall not abate, reduce or otherwise
-9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
affect any consideration or other obligation required by Grantee by the
franchise granted hereunder.
Section 14. Notices
Every direction, notice or order to be served upon Grantee shall be
sent by certified mail to the local office and to the corporate
headquarters of Grantee. Every notice to be served upon Grantor shall be
delivered, or sent by certified mail to the City Clerk.
Section 15. Effective Date
This resolution shall be in force and take effect thirty (30) days
from and after the date of its final adoption, providing that Grantee
complies with the requirements of Section 4(b) of this resolution.
PASSED AND ADOPTED this 6th day of November , 1985, by
the following roll call vote:
AYES: Councilmembers Henderson, Kier, Hickey, and Mayor Myers
NOES: None
ABSENT: CouncJ]member Kelley
Mayor
- 10-