2000-024-Approving Amendment To Franchise Assumption Agreement With TCI Cablevision Of California.RESOLUTION 2000 - 24
RESOLUTION OF'THE TOWN COUNCIL OF THE-TOWN OF LOS GATOS APPROVING
AMENDMENT TO FRANCHISE ASSUMPTION AGREEMENT WITH TCI CABLEVISION
OF CALIFORNIA, INC., dba AT&T CABLE SERVICES AND AUTHORIZING TOWN
.MANAGER TO EXECUTE'THE AMENDMENT
WHEREAS:
A. The Franchise Assumption Agreement between TCI of Cleveland, Inc., TCI
Cablevision ofCalifornia and the Town of Los Gatos approved by Council on March
20,1996 required that KCAT, the local community access station, be carried on cable
channel 6; and
B. In 1999 TCI of Cleveland, Inc. and TCI Cablevision of California, Inc. merged with
AT&T, now doing business as AT&'I' Cable Services; .and
C. In September, 1999, a dispute arose between the Town and AT&T Cable Services
whereby the Town asserted that AT&T was prohibited by the Franchise Assumption
Agreement from relocating KCAT to cable channel 15 and
D. The Town:and the City of Saratoga initiated a court action entitled Town of Los
Gatos and City ofSaNatogav. Telecommunications ("TCI') of Cleveland, Inc.., et al.,
seeking judicial relief in the dispute regarding channel relocation; and
E. The parties to the lawsuit subsequently entered into a settlement of the lawsuit,
wherein the Town agreed,. for certain consideration, to relinquish its claim that
KCAT must remain on cable channel b; and
F. To reflect the. agreement reached by the parties in settling the lawsuit, the Franchise
Agreement must be amended as set forth in Exhibit A attached.
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RESOLVED.:
1. The Amendment to Franchise Assumption Agreement attached as Exhibit A is
approved; and
2. .The Town :Manager is authorized to execute the Amendment to Franchise
Assumption Agreement.
PASSED Al>iD ADOPTED at a regular meeting ofthe. Town Council of the Town
of Los Gatos, California held on the 20t'' day. of March, 2000, by the following vote:
COUNCIL MEMBERS:
AYES.: .Randy Attaway, .Jan Hutchins, Linda Lubeck, Joe Pirzynslc,
Mayor Steven Blanton
NAYS: None
ABSENT: -None
ABSTAIN: None
SIGNED:
MAY OF OWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
~~~ (~-~
CLERK OF '~'I~E TOWN OF 5 GATOS
LOS GATOS, !CALIFORNIA
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;~C~ ~, oar®.~~
AMENDMENT TO FRANCHISE, ASSUMPTION AGREEMENT
This Agreement is made and entered into as of the last date subscribed below by and
between THE TOWN OF LOS GATOS, a municipal corporation of the State of California
("TOWN"), and TCI OF CLEVELAND., INC., a Tennessee corporation ("GRANTEE"), and
TCI CABLEVISION OF CALIFORNIA, INC., a California corporation as operator-in-fact
("OPERATOR"), collectively doing business as AT&T CABLE :SERVICES. This Agreement
amends that certain Franchise Assumption Agreement entered into March 20, 1996 between
TOWN, GRANTEE, OPERATOR, and BRENMOR CABLE PARTNERS, L.P., a California
limited Partnership ("ORIGINAL ASSUMPTION AGREEMENT"),
RECITALS'
1. The Original Assumption Agreement ;provided in section 4 that Town's community
access channel known as KCAT would remain on cable channel 6 throughout the term of the
Franchise, absent the occurrence of certain specified circumstances; .and
2. In that certain Settlement Agreement and Release made effective as of the day of
March, 2000 by and between TOWN, KCAT, GRANTEE and OPERATOR ("Settlement
Agreement") the parties have agreed to conditions pursuant to which the Los Gatos community
access channel known as KCAT formerly located on cable channel 6 may be relocated to cable
channe115; and
WHEREAS, this Agreement amends the. Original Assumption Agreement to implement
the Settlement Agreement; and
WHEREAS, Brenmor Cable Partners, L.P., a party to the Original .Assumption .
.Agreement; by that agreement fully transferred all of its rights, title, interest,. and obligations
under its .franchise agreement with TOWN to GRANTEE and, in .light of said transfer, is not a
party to this Agreement.
AGREEMENT
NOW, THBREFORE, in consideration of the promises, terms and conditions set forth in
the Settlement Agreement and Release, the sufficiency and adequacy of which is hereby
expressly acknowledged; the parties hereby agree as follows:
Section 4 (Public Access Support) of the Original Assumption Agreement is hereby
deleted in its entirety and replaced with the following:
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EI(NIBIT A
4. a) .KCAT Channel Location: In recognition of the importance that local ,public and
governmental access programming has to the TOWN, GRANTEE and TOWN
agree that KCAT shall remain at channe115 until March 31, 2003 (the remaining
term of the existing franchise) unless one or more of the following occurs:
1) Channel 15 must be provided to a broadcaster pursuant to one of the .first three
prongs of the existing "must-carry" regulations codified in 47 U.S.C. § 534(b)(6),
gamely, that a station "shall be carried on the cable system channel number on
which the local commercial television station is broadcast over the air, or on the
channel on which it was carried on .July 19, .1985, or on the channel on which it
was carried on January 1, 1992, at the election of the station." This exception
specifically excludes the language in 47 U.S.C. § S34(b)(6) which states "or on
such other channel number as is mutually .agreed upon by the station and the cable
operator;" or
2) Analog channel l 5 is eliminated or no longer exists at some point in the future; or
3) The existing "must-carry" laws and regulations are amended or revised to. create
"must-carry" rights in Channel 15 for a station other than KCAT or Los Gatos'
Community Access Station. This exception specifically excludes., however, any
view "must-carry" .law or regulation which allows the cable .operator and a
broadcaster to .select Channel l 5 solely by mutual agreement.
4) If KCAT is relocated from Channel 1.5 during the remaining term of the existing
franchise and none of the .above criteria has been satisfied, and TOWN is paid the
um of One Hundred Fifty Thousand Dollars ($'1.50,000)., as the mutually agreed
upon compensation for any relocation, TOWN and KCAT shall receive at least
thirty days' advance written notification. of any such relocation, and the $150,000
shall be paid to TOWN no later than thirty days before relocation occurs. This
payment shall be TOWN's and/or KCAT's sole and exclusive remedy for the
relocation. This payment.shall be owed to TOWNfor each relocation that occurs
where none of the above criteria has been satisfied. GRANTEE and OPERATOR
shall not pass on to .Los :Gatos cable customers- the cost of any said agreed upon
compensation. .
1N WITNESS WHEREOF, the parties have set their .hand and seal to this Agreement as
of the date set forth above.
THIS AGREEMENT may be executed in counterparts, each of which shall constitute an
original, but all of which constitute one agreement.
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Dated: TOWN OF LOS GATOS, a municipal
corporation of the State of California
By:
David W. Knapp, Town Manager
Attest:
Marian V. Cosgrove, Town Clerk
Dated: TCI OF CLEVELAND, INC.,
a Tennessee corporation
By:
Dated: TCI CABLEVISION OF CALIFORNIA, INC., a
California corporation
By:
211348 v02.PA (4J2s02l:DOC)
3/6/00 4:02 PM (95267:0001)
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