Loading...
HomeMy WebLinkAboutRES CC 1984 099 1984 0606RESOLUTION NO. 84 -99 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA AWARDING TO MOUNTAIN MEADOWS CABLE TELEVISION, A CALIFORNIA LIMITED PARTNERSHIP, A FIFTEEN (15) YEAR NON- EXCLUSIVE FRANCHISE TO CONSTRUCT, OWN, OPERATE AND MAINTAIN A COMMUNITY ANTENNA TELEVISION SYSTEM WITHIN THE CITY OF MOORPARK, CALIFORNIA; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANTING OF SAID FRANCHISE. THE CITY COUNCIL OF THE CITY OF MOORPARK DOES RESOLVE AS FOLLOWS: -1- SECTION 1. PURPOSE AND INTENT California Government Code Section 53066 authorizes any city in the State of California to authorize by franchise or license the construction of a community antenna television sys- tem. Such franchises or licenses authorize the operator of the community antenna television system to physically occupy and use for fixed periods of time present and future public rights of way or other public places in the city. Mountain Meadows Cable Tele- vision, a California limited partnership ( "Grantee "), is an affiliate of UWC- Moorpark Investors, Ltd., a California limited partnership ( "Investors "), which holds fee title to all of the real property in the City of Moorpark (sometimes herein referred to as the "City ") described in Exhibit "A" attached hereto and incorporated by reference (the "Property "), and an affiliate of Urban West Communities, a California corporation, which is the grantee of a non - exclusive easement, recorded in the Official Records of Ventura County, California on June 10, 1983 as Instru- ment No. 61657, over all of the Property for the purpose of installation, operation, repair, maintenance and replacement of a community antenna cable television system. Grantee desires to operate a community antenna cable television system on the Prop- erty. The City desires to regulate use of said cable television system on the Property, to establish certain protections of the public interest and the City's interests, and to regulate the use -2- by Grantee of dedicated public rights of way on the Property which have been accepted by the City. SECTION 2. GRANT OF NON- EXCLUSIVE FRANCHISE A non - exclusive franchise to construct, operate, and maintain a cable television system within the City of Moorpark for a term of fifteen (15) years from the effective date hereof is hereby granted to Grantee, with all the rights and privileges and subject to each and all of the terms and conditions of this Resolution. For the purposes of this Resolution, "Cable Television System" means a system of antennas, cables, conduits, manholes, wires, lines, towers, waveguides, microwave, laser beam, fiber optics, master antenna system, satellite or any other conductors, converters, equipment or facilities designed and constructed for the purpose of producing, receiving, amplifying and distributing audio, video and other forms of electronic or electrical signals, located in the City of Moorpark and con- structed or used for one or more of the following purposes: (1) Collecting and amplifying local and distant broad- cast television or radio signals and distributing and transmit- ting them; (2) Transmitting original cablecast programming not received through television broadcast signals; -3- (3) Transmitting television pictures, film and video- tape programs not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers; (4) Transmitting and receiving all other signals; digital, voice and audio - visual. SECTION 3. NATURE AND EXTENT OF GRANT The non - exclusive franchise granted by this Resolution to Grantee constitutes authority to Grantee to.use the public streets, or other public rights of way, and to engage in the business of operating a Cable Television System within the area described in Section 4 of this Resolution, subject to all of the terms and conditions contained in this Resolution. Pursuant to such authority, until lawfully revoked, Grantee may construct, maintain and operate wires, cables, poles, conduits, manholes, and other television conductors and equipment of the type described in Section 2 necessary for the maintenance and operation of a Cable Television System. SECTION 4. DESIGNATION OF SERVICE AREA The service area of the franchise granted 'herein includes all areas of the Property within the corporate limits of the City off Moorpark. -4- SECTION 5. DURATION OF GRANT The term of the franchise shall be fifteen (15) years from the date hereof. The franchise shall become effective on passage of this Resolution, provided, however, that this Resolu- tion shall not become effective unless within ten (10) working days after the date of the approval of this Resolution, or within such extended period of time as the Council in its discretion may authorize, Grantee shall file with the City Clerk a written acceptance to be bound by and comply with and to do all things required by this Resolution. SECTION 6. CONSTRUCTION OF CABLE TELEVISION SYSTEM Section 6.1 - SCOPE OF FRANCHISE. The facilities to be constructed and operated under the franchise granted herein shall be built of good material in a workmanlike manner. The work of construction, repairing, and maintaining the Cable Television System shall at all times be in compliance in all respects with current rules, regulations and ordinances of such state or federal authorities as may have jurisdiction over such systems. The terms and conditions of this franchise shall also apply to any pipes, tubes, conduits, poles, wires or other facilities of Grantee which are located within the right of way of any road at the time such road becomes a City road. -5- Section 6.2 - PERMIT. Grantee may, subject to such regulations as are now or hereafter may be in force, make excava- tions in and place obstructions upon City roads within the area covered by the franchise for the purpose of construction, main- taining, operating, and removing any franchise facility or prop- erty. No excavation in or obstruction of any road right of way which has been offered for dedication to the City and accepted for maintenance and use by the City may be made unless and until an encroachment permit therefor is obtained from Director of the City's Public Works Department. The Director of the City's Public Works Department shall not issue an encroachment permit for an excavation in or obstruction upon any City road if it is found that either the excavation or the obstruction or the placement or maintenance of the franchise facility or property will seriously or unreasonably interfere with the public uses and purposes of the City road or will create a dangerous condition in the City road. Section 6.3 - ASSUMPTION OF RISK. All work done in the exercise of franchise rights shall be done with the least possi- ble interference with the use of City roads by the public or by the City. All excavations shall be backfilled and adequately compacted. The surface or City roads shall be placed in as good and serviceable condition as existed at the beginning of this work and to the satisfaction of the Director of the Citv's Public CM. Storks Department. Grantee shall indemnify Citv, its officers and employees, and save them harmless from and against any and all loss, damage, expense, claims and demands, of whatsoever charac- ter, including but not limited to, injuries to employees of City or to third persons and damage to property belonging to or in the custody or possession of City or third persons, whether upon the property or right of way of City caused directly or indirectly in the exercise by Grantee of any of the rights granted under a franchise. The conditions hereinabove specified are binding upon any and all successors or assigns of Grantee. Section 6.4 - INSURANCE. Within thirty (30) days after grant of the franchise, Grantee shall file with the City Manager and maintain on file throughout the term of the franchise a certificate of insurance (and a complete copy of the policy described therein) issued by a company duly authorized to do business in the State of California, naming the City as an insured with respect to the installation, operation and mainte- nance of the Cable Television System. The liability insurance policy shall be a comprehensive general liability policy insuring against all liability for loss or damage occasioned by the opera- tions of Grantee or its cable television contractor, or their agents, employees or sub- contractors pursuant to the terms of this franchise including, but not limited to, contractual liability coverage for all liabilities assumed by Grantee under -7- any indemnity provisions of this franchise and coverage for explosion, collapse and underground property damage ( "XCU ") with minimum liability limits of $1,000,000.00 combined single limit. The minimum liability insurance amount shall not be construed to limit the liability of Grantee or its cable television contractor to the amount of such insurance. In addition, in order to protect Cable Television System subscriber expectations of receiving continuous small cable television service, Grantee shall provide property damage insurance protecting the Cable Television System against all perils generally included within the classification of "all risks" in an amount at least equal to the full replacement cost of such Cable Television System. Such insurance shall, during the course of any construction of the Cable Television System be in an All Risk Builder's 100% Completed Value Non - Recording Form. In addition, Grantee, or its cable television contractor, shall provide evidence of worker's compensation insurance as required by law and employer's liability insurance with limits of liability of not less than $1,000,000.00. The certificate of insurance to be provided to the City Manager shall contain a provision that written notice of cancellation or reduction in coverage shall be delivered to the City not less than thirty (30) days prior to the effective date thereof. All of the insurance required in this section shall also provide the coverage thereunder as primary to any other insurance carrier by the City, Grantee and its cable television contractor. Grantee or its cable television contractor shall at all times during the existence of the franchise granted herein maintain said insurance in full force and effect. Section 6.5 - PUBLIC IMPROVEMENTS. Grantee shall remove or relocate at its expense any of its Cable Television Facilities located in any City road whenever removal or relocation is deemed reasonably necessary by the Director of the City's Public Works Department because of any work being done on or about the City road by the City or any public entity, or because of any change of road grade, alignment, or width. Written notice shall be given to Grantee at least sixty (60) days in advance of the time when worst is to be completed by Grantee. If such work is not completed by Grantee prior to the end of the time stated in the notice, then the City or other applicable public entity may contract or perform the removal or relocation at the sole expense of Grantee and Grantee shall immediately remunerate the City or the applicable public entity for such expense. SECTION 7. OPERATION OF THE CABLE TELEVISION SYSTELM Section 7.1 - QUALITY OF SIGNAL. The Grantee shall provide, maintain and operate facilities which deliver signals of adequate strength to produce good video signals with good sound Q'� at all outlets and meet all Federal Communications Commission cable television technical standards for systems of the size and with the types of cable facilities installed by Grantee. Section 7.2 - HOURS OF SERVICE. Grantee shall operate the Cable Television System authorized by this Resolution twenty- four (24) hours per day, seven (7) days per week. Section 7.3 - SYSTEM COMPATABILITY. Grantee shall install the Cable Television System in a manner so that it is technically compatible with the basic cable television services provided by Storer Cable Television System as of the date of this Resolution to lands adjoining the Property. Section 7.4 - PROGRAM CONTENT. Grantee shall provide, at a minimum, all VHF Los Angeles public channels now or here- after broadcast from Mount Wilson, and a community access channel for the planned community located on the Property. For reference purposes, the City acknowledges that the public channels currently broadcast from Mount Wilson are as follows: Channels 2, 4, 5, 7, 9, 11, and 13. Satellite services comprised of movie channels, sports, music, news and other specialty services commercially available to Grantee shall be provided to the extent demanded by the market serviced by Grantee. The City understands and acknowledges that the programming which Grantee and its cable television contractor plans to make available to the Cable Television Service subscribers will emanate from sources over -1G- which Grantee has no control, and that Grantee shall not be liable or responsible in any way for the failure of programming to be available or for the cancellation of programming which was once available provided Grantee is not at fault therefor. Section 7.5 - OPERATION OF SYSTEM BY THIRD PARTY CON- TRACTOR. The City acknowledges and agrees that Grantee may subcontract the entire operation of the Cable Television System to a third party cable television contractor, and that Grantee may terminate said subcontracts and enter into new subcontracts at will; provided, however, (a) Grantee shall at all times be required to meet the standards for performance prescribed in this Resolution, and (b) the City Manager of the City shall have the right of prior approval of each such cable television contractor, which right of approval shall be reasonably exercised. Section 7.6 - SUBSCRIBER COMPLAINTS. Grantee and its cable television contractor shall maintain a telephone service listing in directories serving the Community which service shall be so operated that complaints and requests for repairs or adjustments may be received at any time, day or night, seven days a week by making a toll free telephone call. Grantee shall respond to each subscriber request within thirty -six (36) hours, irrespective of holidays or nonbusiness hours if the nature of the request indicates a likelihood that the request is due in any way to the failure of Grantee's or its contractor's equipment. -11- If the nature of the request indicates a likelihood that the request is due to the subscriber's television set or such sub- scriber's tampering with or misuse of Grantee's or its contrac- tor's equipment, Grantee shall respond to such request on the next business day. No charge will be made to the subscriber for service if such service was due to the failure of Grantee's or its contractor's equipment unless such failure was caused by such subscriber's tampering or misuse, in which case such subscriber shall be charged for labor and materials. If it is determined that the request was caused by the subscriber's television set, there shall be no charge for the first two such service calls, but Grantee shall have no obligation to repair the subscriber's television set and such subscriber shall thereafter be charged for labor and materials for additional service calls determined to have been caused by such subscriber's television. Any preven- tion, delay or stoppage of service beyond the reasonable control of Grantee other than those of an economic or financial nature shall excuse Grantee's performance of the provisions of this subparagraph for a period of time equal to any such prevention, delay or stoppage. Grantee or its contractor shall keep a main- tenance service log which will indicate the nature of each serv- ice complaint, the date and time such complaint was received, the disposition of said complaint and the time and date cleared. Such logs shall be retained by Grantee or its contractor for a -12- period of three (3) years from the date of the making of the entry, and shall be made available to the City for inspection and copying. Grantee shall make its representatives available to the City Council and City staff, on three (3) business days tdle- phonic notice, to discuss subscriber complaints of any nature. Upon complaint to the Director of the City's Public Works Depart- ment by a subscriber, and upon written request to Grantee by said Director, Grantee or its cable television contractor shall timely make a demonstration to said Director that a signal is being delivered which is of sufficient strength and quality to meet standards set forth in regulations of the Federal Communications Commission for cable television systems of the size, type and age of the Cable Television System. Tn the event that Grantee or its cable television contractor is able to demonstrate the signal's compliance with such regulations, the subscriber shall be obli- gated to pay for the cost of said demonstration test. Section 7.7 - SERVICE INTERRUPTION. Cable Television Service shall be interrupted only for good cause, for the short - I est time possible and during periods of minimum use of the Cable Television System and any such interruption shall be preceded by twenty -four hours advance notice, over the community access channel, to all subscribers. A written log shall be maintained for all service interruptions and shall be retained by Grantee for a period of three (3) years from the date of the making of ! I -13- the entry, and shall be made available to the City for inspection and copying. Grantee shall not arbitrarily refuse to provide service to any structure on the Property; provided, however, Grantee shall not be required to provide service to any sub- scriber who does not timely pay or who, historically, has not timely paid the requisite fees and service charges. SECTION 8. RATE SCHEDULE Subject to the express provisions of this Section 8, the rate to be charged to subscribers to the Cable Television. System for "Basic Cable Service" (i.e. the public channels broadcast from Mount Wilson enumerated in Section 7.4 and the community access channel) shall be regulated by the City. Such rates shall be uniformly applied to all subscribers. The initial rate to be charged for Basic Cable Service for the first year following the date the Cable Television System is fully operative as to the first dwelling unit on the Property for which a certificate of occupancy is issued by the City shall be $8.50 per month, and shall be thereafter adjusted as described below. Provided Gran- tee is performing its duties and obligations in accordance with the terms of this Resolution, the initial rates charged to sub- scribers to the Cable Television System for Basic Cable Service may be annually increased upon obtaining prior written approval from the City Council for such increase. In no event shall the -14- rate for Basic Cable Service ever be less than $8.50 per month. Provided the Basic Cable Service being provided by Grantee is at least equal to the Basic Cable Service then being provided in the City by Storer Cable Television, the City shall permit Grantee to charge a rate for Basic Cable Service at least equal to the rate charged by Storer Cable Television for Basic Cable Service in the City. Unless otherwise agreed by the City, all other installa- tion charges and equipment deposits and rents imposed upon or assessed against subscribers to the Cable Television System shall at all times be less than or equal to the greater of the fees, charges or deposits imposed or assessed by Storer Cable Tele- vision in the City or Group W Cable in the city of Simi Valley for such comparable items. Grantee shall make available to subscribers, at a reasonable cost locking keys (parental control devices) designed and intended to control the use of premium pay services, such as movie, music and adult cable channels. SECTION 9. FRANCHISE FEE Section 9.1 - AMOUNT OF FEE. Grantee and its successors and assigns shall, during the life of franchise, pay to the City three (3 %) percent of gross annual collected receipts of the Cable Television System. Gross annual receipts shall not include installation charges, service /repair charges or converter depos- its. In the calendar _years of commencement and termination of -15- franchise, annual payments shall be prorated according to the periods of time the franchise shall have been in effect during the respective years. Franchise fees are payable from the effec- tive date of franchises. Payments shall be made to the City Clerk quarterly on or before the fifteenth day of January, April, July and October, of each year for operations during the preced- ing calendar year. Delinquent payments of franchise fees shall bear interest at the rate of ten percent per annum measured from the due date described herein. If at any time during the life of the franchise, Grantee becomes delinquent in payments of franchise fees to the City, the franchise may be terminated by City Council resolution after following the procedure set forth in Section 10. For the purpose of franchise termination, delinquent shall mean Grantee has failed to pay franchise fees for the preceding quarter within sixty days following request therefor in writing by the City Clerk. Section 9.2 - STATEMENT OF GROSS RECEIPTS. On or prior to April lst of each year, Grantee shall file with the City Clerk a statement, verified by Grantee's or its cable television con- tractor's oath, or the oath of the manager or other responsible officer of Grantee or its cable television contractor, showing in detail total gross annual receipts from the Cable Television System originating within the Property during the preceding calendar year. The City shall have the right to annually inspect Mir: Grantee's and its contractor's revenue records under the fran- chise and the right of audit and recomputation of any and all amounts payable under the franchise. Costs of audits shall be borne by Grantee when audits result in an increase of more than five percent of Grantee's annual payments due the City. Acceptance of any payment of franchise fees shall not be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under the franchise or for the performance of any other obligation hereunder. Neglect, omission or refusal by Grantee to file such verified statements shall be adequate grounds upon which City Council may, by resolution, declare the franchise and all rights of Grantee under the franchise terminated pursuant to the terms of Section 10. Section 01.3 - EOUIPMENT DONATION. Franchisee shall make a donation to the Moorpark Unified School District of educational video and /or computer equipment of $5,000 in value within 30 days after the hook -up of the 300th dwelling unit on the Property, and shall make another donation to the Moorpark Unified School District of educational video and /or computer equipment of $5,000 in value within. 30 days after the nook -up of the 600th dwelling unit on the Property. -17- SECTION 10. TEP14INATION OF FRANCHISE Failure or refusal of Grantee to substantially comply with material terms or conditions of the franchise shall be adequate grounds for termination of the franchise, and the City Council, after giving at least sixty (60) days prior notice to Grantee in writing by certified or registered mail to the last known address of Grantee, may hold a hearing on the proposed termination and the reasons therefor, affording Grantee a reason- able opportunity to present evidence and be heard on the matter, and within ninety (90) days after said hearing affording Grantee the opportunity to cure said material breach. After said notice, hearing and opportunity to cure, the City Council may declare by resolution the termination of the franchise and may exclude Grantee from further occupancy or use of City roads. In the event of such termination, title to all real or personal property placed on, embedded in or buried by Grantee or its cable televi- sion contractor under substratum or surface of City rights of way, easements or property in exercise of the franchise right shall remain vested in Grantee. Neither the City or any substi- tute licensee or franchisee may utilize the Cable Television System on the Property without purchase of the Cable Television System from Grantee and /or its cable television contractor at the fair market value of said system determined one day prior to the first giving'of the written notice of hearing described in this Section 10. -18- SECTION 11. REMOVAL OF CABLE TELEVISION SYSTEM Within ninety days after expiration of the franchise, or termination thereof pursuant to Section 10, Grantee or its con- tractors may begin removal without expense to the City of any or all facilities and equipment maintained pursuant to the terms of the franchise. If such removal is not completed within one hundred and eighty (180) days or any additional period granted by the City, Grantee shall be deemed to elect not to exercise the right to remove the facilities which Grantee has installed and maintained in exercise of its franchises rights. SECTION 12. RIGHT LIMITED TO PUBLIC EASEMENTS The franchise shall confer upon Grantee only the right or privilege to enter upon public easements in City roads and other public easements as described by California Goverment Code 53066, and shall not be construed to authorize invasion of prop- erty rights of abutting landowners absent express easements or licenses granted for the benefit of Grantee. CF(TTr)KT 11 r.Fr - nr. :F'T:C In the event action, suit or proceeding is brought by the City or Grantee, one against the other, with respect to the subject of the franchise, the prevailing party shall be entitled -19- to recover from the other party all cost and expenses of the action, suit or proceeding, including reasonable attorneys' fees. C7( MTt)XT 1 A vL`ADr v MADC Grantee shall file with the City Planning Director on the first of each fiscal year (July 1) a current map or maps showing all of its Cable Television System facilities installed in or on City public property during the previous year. C G`!`T T XT l C rnOAT T n n V A r TT TT T LI C All of Grantee's above and underground plant, within or outside public right of way, shall be installed and maintained in such a manner as to provide for the greatest public safety and least interference with ajoining private property. To the extent practical, all of Grantee's cable lines located on private property shall be abutting and /or parallel to lot lines. SECTION 16. RENEWAL Not later than six months prior to the expiration of the terms of the franchise, Grantee may apply to the City for renewal. The term of renewals shall be consistent with the Rules and Regulations of the Federal Communications Commission and federal statutes effective as of the application or renewal date. -20- SECTION 17. APPEAL PROCEDURE In the event that the Director of the City's Public Works Department is required to make a decision on behalf of the City with respect to the franchise, the Director shall advise the parties involved by a written decision, containing the reasons upon which such decision is based. Any person aggrieved by the decision may appeal directly to the City Council in writing, setting forth the basis of any grievance arising from such Direc- tor's final decision and enclosing a copy thereof. The City Clerk shall place any such appeals on the City Council's agenda, and the City Council may either reject the appeal as without merit, if appropriate, or set a date for a hearing and deci- sion. The City Clerk shall notify the appellant of the City Council's action on the appeal. The decision of the City Council is the final administrative remedy available to Grantee and all other persons involved in such appeal. SECTION 18. 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 juris- diction, such decision shall not affect the validity or the remaining portions hereof. The City hereby declares that it would have passed this Resolution and each section, subsection, -21- sentence, clause and phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared illegal, invalid or unconstitutional. SECTION 19. NON - ENFORCEMENT BY CITY Grantee shall not be relieved of its obligations to comply with any of the provisions of the franchise by reason of any failure of the City to enforce prompt compliance with the terms hereof. g7rrrTnM )n NTn TPTT?r) DaRTV RPIQPPTTC This Resolution is made for the sole benefit of the City and Grantee and no other person or persons shall have any rights or remedies under or by reason of this Resolution. SECTION 21. NO PARTNERSHIP Nothing in this Resolution is intended to nor shall be deemed to constitute a partnership or joint venture between the City and Grantee. SECTION 22. TTSP OF (,ONr)fTTT RY THTRn PARTY FRANCHTSFFS_ Any third party which has been granted a franchise or license by the City to construct and operate a cable television system within the City shall have the non - exclusive right to use, -22- at no cost or expense to Grantee, for cable television system purposes all conduit which is installed or maintained in City right of way by Grantee, Grantee's affiliates or Grantee's cable system contractor for cable television system purposes, provided that, such use does not interfere with or impair Grantee's Cable Television System service. Such non - exclusive right to use shall be on the condition that such third party franchisee or licensee shall indemnify and hold harmless the City, Grantee and Investors, their successors and assigns, from and against any and all loss, damage, expense, claims and demands, of whatsoever character, including, but not limited to, interruption or interference in cable television service, personal injury, and property damage, arising directly or indirectly from such third party franchisee's or licensee's use of such conduit. SECTION 23. ASSIGNME14T OF FRANCHISE. The franchise may not be assigned without the prior approval of the City Council. CPr'TTnTT 1A VVWMrmre7W nArPV This Resolution shall be in full force and effect upon passage by the City Council. -23- SECTION 25. EXTENDED SERVICE. If the City in its sole discretion elects to terminate or declines to renew the existing non-exclusive cable television franchise (Ventura County Franchise 1.10.48), the contractor on the Property identified in Section 7.5 shall, in response to the City's request, make a good faith franchise proposal and enter into good faith franchise negotiations with the City to provide cable television service to the wired and unwired balance of the City. Such a proposal shall contain, at a minimum, the basic service rate and program service available to subscribers on the Property at the time of expansion. The contractor may include service hook -up charges that reflect the actual cost of the accompanying facility extension. Adopted this 6th day of June, 1984. eta Ya c S Mayor, (9 y of Moorpark Attest: -24- STATE OF CALIFORNIA ) COUNTY OF VENTURA ) SS. CITY OF MOORPARK ) I, DORIS D. BANKUS , City Clerk of the City of Moorpark, California, do hereby certify that the foregoing Resolution No. 84 -99 was adopted by the City Council of the City of Moorpark at a regular meeting thereof held on the 6th day of June , 19 84 , and that the same was adopted by the following vote, to wit: AYES: Councilmembers Harper, Straughan and Beaulieu; NOES: Councilmember Prieto and Mayor Yancy- Sutton; ABSENT: None. WITNESS my hand and the official seal of said City this 6th day of June , 19 84 CITY CLERK