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HomeMy WebLinkAboutMINUTES - 10251994 - 1.44 . . �, y �.� TO: BOARD OF SUPERVISORS ...... Phil -r_--°�_Phil Batchelor, County AdministratorContra FROM: ) j Costa County October 17, 1994 DATE: STI cuJ+� SUBJECT: AMENDED ACCESS INTERCONNECT AGREEMENT WITH VIACOM CABLEVISION SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION: AUTHORIZE the Chair, Board of Supervisors, to sign the "Amended Agreement for the Delivery of Access Programming in Contra Costa County" with Viacom Cablevision (Bay Point) . FINANCIAL IMPACT: None. BACKGROUND: On July 12 , 1994, the Board of Supervisors approved the renewal of Viacom Cablevision's cable television license on the condition that, before renewal shall become effective, Viacom would enter into an amended access agreement with the County. The "Amended Agreement for the Delivery of Access Programming" has the following additional provisions : 1) Viacom will continue to air the Board of Supervisors ' meetings, at its expense, on Monday evenings from 7 p.m. until 9 p.m. until the access channel is activated; 2 ) Viacom will purchase and install equipment and fiber optic cable which will activate their portion of the countywide interconnect. The channel will be activated and turned over to the County no later than November 1, 1994 ; and CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE X APPROVE OTHER SIGNATURE S 1:&&zyz e2lzK ��a�/_ ACTION OF BOARD ON APPROVED AS RECOMMENDED -,,Y-!,- OTHER VOTE OF SUPERVISORS ,.I HEREBY CERTIFY THAT THIS IS A TRUE. - UNANIMOUS(ABSENT ) ""AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. ATTESTED OCT 2 .5 1994 Contact: PHIL BATCHELOR,CLERK OF THE BOARD OF cc: CAO SUPERVISORS AND COUNTY ADMINISTRATOR Viacom (via: CAO) BY / DEPUTY -2- 3) Viacom agrees to use its best efforts to make available as soon as possible Channel 18 or 19 . The interim dedicated channel for (Contra Costa Television) CCTV will be Channel 27 . Viacom has reviewed and signed the amended agreement. It is presented today for Board approval and signature. Viacom has been very supportive in their efforts to promote the County channel and has invited Supervisor Torlakson and the Cable TV Administrator to appear on a program called "Cable Talk" on Viacom' s Community Access Channel on November 1, 1994 at 7 p.m. to launch the channel in Bay Point, Pittsburg and Antioch. Amended Agreement for the Delivery of Access Programming in Contra Costa County This agreement (the "Amended Agreement" ) is entered into on , 1994 , by and between the County of Contra Costa, a political subdivision of the State of California (the "County" ) , and Tele-Vue Systems, Inc. , a Washington corporation, doing business as Viacom Cable ( "Viacom" ) . The parties agree as follows : A. Previous Agreement On July 20, 1993, the County and various cable operators, including Viacom, entered into a written agreement entitled "Agreement for the Delivery of Access Programming in Contra Costa County" (the "Agreement" ) , which governs the provision of County- wide PEG programming by the County. The Agreement has not previously been amended. The parties now desire to amend the Agreement to provide for the use of a fiberoptic/microwave system for distribution of the County' s dedicated PEG channel within Viacom' s service area and to provide for the continued carriage of PEG programming by Viacom pending completion of the fiberoptic system. This Amended Agreement shall supersede the Agreement to the extent it relates to Viacom's portion of the interconnect. B. Access Structure Viacom shall, in two phases, provide a means by which the County, may deliver public, educational and governmental programming ( "access programming" ) to those subscribers of Viacom located within Contra Costa County. In Phase I, Viacom shall provide dedicated time over its cable system for the carriage of access programming provided by the County. In Phase II , Viacom and the other cable operators named in the Agreement (collectively the "Operators" ) shall advance funds for the purchase of certain video production and microwave equipment and shall undertake construction of a microwave or fiberoptic interconnect for delivery of access programming over a channel dedicated to the County for purposes of carriage of access programming. C. Phase I 1 . Commencing April 6, 1992, Viacom has made available the hours of 7 : 00 p.m. to 9 : 00 p.m. each Monday for the carriage of access programming provided by the County. This time shall be made available for priority use of the County for the carriage of access programming provided to Viacom in videotape format for playback over Viacom' s cable system. 2 . The channel over which access programming is carried may be a local channel as Viacom chooses . Access programming shall be carried together with other programming provided on such channel on a shared use basis . Except as to such time as is made available 1 t t to the County for the carriage of access programming, Viacom may program such channel as it determines in its sole discretion and shall have exclusive control over the operation of such channel . On 60 days ' prior written notice to the County, Viacom may change the channel over which Phase I access programming is carried. 3 . The channel over which access programming is carried shall be a part of Viacom' s basic service. Viacom shall make available, upon request and at a reasonable cost, one converter or similar device allowing reception of such channel for those subscribers in Viacom' s service area otherwise incapable of receiving the channel on their television receivers . Deposits may be required if fully refundable upon return of the converter or other device in good operating condition. 4 . The time made available to the County for the purpose of access programming shall be utilized by the County exclusively for the purposes of public, educational and governmental programming and for no other purpose. Such time shall not be used by the County for the carriage of commercial programming, advertising or for any other non-access programming. The County shall use its reasonable efforts to minimize repeat cablecasting of access programming during Phase I, except in cases of programming of significant community interest. 5 . Each access program provided by the County for carriage by Viacom shall be in 3/4" videotape format. At least five (5) business days before the date on which the access program is to be carried, the County shall deliver to the production facility designated by Viacom a master videotape of the access program. If Viacom requests delivery of a master videotape to a location outside Central Contra Costa County, Viacom shall bear the reasonable expense of delivering the master to such location if overnight or other express delivery is required to allow for timely duplication and distribution of the access program. Viacom shall, at its expense, arrange for the duplication and distribution of the access program such that Viacom receives a copy of the access program sufficient to allow for carriage at the time designated by the County. If the County delivers a master videotape of an access program to the designated production facility less than five (5) business days prior to the date on which the County wishes such program to be carried, Viacom shall use its reasonable efforts to duplicate and distribute copies of the program so as to provide for carriage of such program when requested by the County or, at the County' s option, the County shall arrange for the duplication and distribution of the access program at the County' s expense. 6 . The master videotape of each access program provided by the County must be of satisfactory technical quality. If any master videotape is not of satisfactory quality, it shall be promptly returned to the County and the County shall endeavor to provide a substitute master videotape of satisfactory technical 2 quality. The copies of the master videotape produced for carriage over Viacom' s cable system shall be of satisfactory technical quality consistent with the technical quality of the master videotape itself . If the technical quality of such copies is not satisfactory and the impairment is not attributable to the master videotape, Viacom shall provide copies of satisfactory quality for cablecasting by Viacom at the next regularly-scheduled time designated by the County in accordance with Paragraph C. 1 above, or at such earlier time as may be available and mutually agreed upon by the County and Viacom. 7 . On such schedule as is agreed to between the County and Viacom, Viacom shall carry character generated messages over its cable system advising its subscribers of the access programming provided by the County. Such messages shall be carried over the channel designated by Viacom for carriage by the County' s access programming or such other channel as may be agreed upon by the County and Viacom. The County shall provide Viacom with the text of each such message. Where a newspaper distributed in Viacom' s service area provides a listing of local origination and community access programming carried by Viacom over its cable system, Viacom shall use its reasonable efforts to identify the County' s access programming in such listings, provided the County gives Viacom sufficient advance notice of the access programming to be included in such listings . The County and Viacom may agree upon other methods of advertising the County' s access programming, including the use of public service announcements provided by the County for carriage over Viacom's cable system, provided that Viacom' s systems are capable of carrying such announcements without the addition of equipment and with no interference to any other programming or advertising carried by Viacom. 8 . Should the County not schedule the carriage of access programming during any time period identified in Paragraph C. 1 above, Viacom may carry any other programming during such period. D. Phase II 1 . For the purpose of equipping the studio to be used by the County for the production of access programming, the Operators shall advance to the County funds for the County' s use in purchasing and installing the video production equipment set forth in Exhibit B attached to this Agreement. The total expense to the Operators for purchase and installation of video production equipment set forth in Exhibit B shall not exceed $150,000 . 00, but at the County' s option, any unused portion may be applied towards construction of the microwave or fiberoptic interconnect (see Paragraph D.2 below) , but any unused portion of such funds remaining unspent as of July 1, 1994 shall be refunded to the Operators in accordance with the allocation percentages set out in Exhibit C (adjusted to account for any Operator not contributing to 3 the funds provided for such video production equipment) . Viacom agrees, at no charge to the County, to make its technical and production personnel available for reasonable consultation and assistance in connection with the installation of the video production equipment. 2 . For the purpose of constructing its portion of the microwave and fiberoptic interconnect in the configuration set forth in Exhibit A, Viacom shall purchase and install, or arrange for the installation of, all equipment and fiberoptic cable necessary to activate the interconnect. The total expense to the Operators for the purchase and installation of the microwave equipment set forth in Exhibit B to the Agreement shall not exceed $250, 000 . 00, but at the County' s option any unused portion may be applied towards the purchase of video production equipment (see Paragraph D. 1 above) . All additional expenses incurred by Viacom for the purchase and installation of fiberoptic cable and related equipment used in Viacom' s portion of the interconnect shall be borne by Viacom. The installation of the microwave receive equipment shall be performed or arranged by the Operators at no cost to the County. The installation of the microwave transmit and relay equipment shall be performed by the Operators and the County shall reimburse the Operators for the actual cost ( i .e. , installers ' hourly salary plus cost of materials) of such installation work, excluding overhead. All microwave equipment, except for receive equipment, shall be owned by the County following its installation. All microwave receive equipment shall be owned by the Operator owning or controlling the receive site where such equipment is located. The installation of Viacom' s portion of the interconnect shall be completed and the interconnect shall be activated and the dedicated channel turned over to the County no later than November 1, 1994 . The County shall, at its expense, arrange for a qualified technical expert to consult in the installation of the microwave equipment. 3 . For the entire period of the license granted by the County, the Operators shall grant to the County, or use reasonable efforts to obtain in the County' s name at the County' s expense, written consent for the installation and maintenance of the microwave equipment and all appurtenances on Briones Peak and other antenna locations shown on Exhibit A to the Agreement not already owned or controlled by the County. The expense to the County under this paragraph shall be limited to the actual fees charged by third party owners of the antenna sites . The County shall be responsible for securing all licenses, permits or other authorizations required for construction of the interconnect at its sites . The Operators shall be given access to all County facilities and other facilities not owned or controlled by the Operators for purposes of construction of the interconnect. 4 4 . In purchasing the microwave equipment, the Operators shall use their reasonable and good faith efforts to obtain the equipment at the lowest prices available to the Operators . 5 . The equipment described in Paragraphs D. 1 and D.2 above shall be purchased through an advance of license fees made by the Operators . Each Operator shall advance such license fees in two installments, the first ( for purchase of the video production equipment) to be made within 30 days after the execution of this agreement, and the second ( for purchase of the microwave equipment) to be made on or before September 30, 1993 (or such earlier date as may be necessary to accommodate the period allowed for construction of the microwave paths under the FCC licenses) . The advances required for each Operator are more particularly identified in Exhibit C to the Agreement. 6 . Before purchasing any equipment under Paragraph D.2 above, the Operators shall furnish to the County a written quotation listing the price(s) to be paid, and shall obtain the County's consent in writing thereto. The County approves the equipment identified in Exhibit D to the Agreement for purposes of construction of the microwave interconnect and approves the prices for the acquisition of such equipment as set forth in that Exhibit. The County acknowledges that the prices for the microwave equipment set forth in Exhibit D to the Agreement do not include (i) all equipment required for construction of the interconnect, (ii) freight or ( iii) installation costs permitted under this Amended Agreement. The Operators shall account to the County for the expenditure of such funds within ninety ( 90) days after purchasing each group of equipment described in Paragraph D.2 above. In the event the total cost of such facilities and equipment described in Paragraphs D. 1 and D.2 exceeds the amount budgeted therefor set forth in Exhibit D to the Agreement, the County shall be responsible for all such excess costs, except for the additional expenses for which Viacom is responsible (see Paragraph D.2) . In the event the cost of such facilities and equipment is less than the amount budgeted therefor set forth in Exhibit D to the Agreement and the County does not exercise its option to apply the unused portion(s) as provided in Paragraphs D. 1 and D.2 above, such advances shall be adjusted prorata among the Operators to reflect the actual aggregate amount advanced by the Operators for purchase of the video production and microwave equipment and installation of the microwave equipment. Such adjustment shall be based upon the amount of the advance otherwise due from each Operator as originally set forth in Exhibit C to the Agreement in relation to the aggregate of advances required of all Operators as originally set forth in that exhibit. 7 . The failure of any Operator, including Viacom, to advance in a timely manner its proportionate share, as set forth in Exhibit C to the Agreement, shall constitute a material breach of this Amended Agreement and of the County's cable television 5 ordinance, and shall entitle the County to all or any combination of the following remedies : (i) revocation or forfeiture of such Operator' s license; ( ii) recovery of damages, including without limitation additional expenses incurred by the County to extend or reapply for the FCC licenses; and ( iii) any other remedies provided by law or equity. Should any Operator fail to advance the full amount required of it under Exhibit C to the Agreement, no other Operator shall be responsible for funding the amount of any such deficiency. In such case, the County shall have the option of advancing money to cover the deficiency or of requiring those Operators that have paid their contributions to construct and turn over to the County a partial or phased interconnect (i .e. , one or more operational legs) using the available funds . 8 . The advance of license fees by Viacom as set forth in Exhibit C to the Agreement (subject to adjustment as described in Paragraph D. 6 above) shall be amortized on a straight-line basis over a period of six years . One-sixth of the total amount actually advanced by Viacom shall be offset against license fees otherwise due the County from Viacom with respect to each calendar year commencing with calendar year 1993 and terminating with the license fees due for calendar year 1998 . If the aggregate amount of any such advance has not been fully amortized and offset against license fees otherwise due the County as of calendar year 1998, the unamortized balance of such advance shall be offset against license fees due the County each year thereafter on a dollar-for-dollar basis until the advance has been fully amortized. Should any unamortized balance remain unpaid as of December 31, 2002, the County will reimburse it to Viacom. 9 . Viacom shall, at its expense, maintain all fiberoptic cable and related equipment necessary to receive and distribute the microwave signal originated by the County over Viacom' s portion of the interconnect. The County shall, at its expense, maintain or cause to be maintained all microwave equipment and appurtenances installed upon County facilities necessary to transmit or retransmit the microwave signal originated by the County over such interconnect. The Operators shall maintain, or arrange for the maintenance of, all microwave equipment and appurtenances installed upon the facilities of any Operator necessary to transmit or retransmit the microwave signal for the interconnect, and the County shall pay the Operators for the actual cost thereof ( i .e. , installers ' hourly salary and cost of materials, excluding overhead) . 10 . All costs reimbursed by the County under this Amended Agreement will be paid within a reasonable period after receipt of request. 11 . No later than November 1, 1994, Viacom shall make available a dedicated channel on its cable system for carriage of 6 access programming provided by the County through the interconnect. This channel shall be subject to the following understandings : a. As an interim channel assignment for the dedicated channel, Viacom has agreed to make Channel 27 available effective November 1, 1994 . The channel shall be made available concurrently with completion of Viacom' s portion of the interconnect. Effective upon the dedication of such channel and activation of the interconnect, all obligations of Viacom under Phase I shall terminate and Viacom shall have no continuing obligation to make time available on a shared use basis for the carriage of access programming. b. As a channel assignment for the dedicated channel, Viacom shall use its best efforts to make available as soon as possible Channel 18 or 19, which is the uniform channel assignment agreed to by the Operators. Upon activation of the permanent channel, the interim channel shall revert to Viacom. C. The dedicated channel shall be a part of Viacom' s basic level of service. Viacom shall make available, upon request and at a reasonable cost, one converter or similar device allowing reception of the dedicated channel for those subscribers otherwise incapable of receiving the dedicated channel on their television receivers . Deposits may be required if fully refundable upon return of the converter or other device in good operating condition. d. The dedicated channel shall be available entirely for purposes of public, educational and governmental programming and for no other purpose, provided that the County may permit Viacom to utilize such channel on such days and during such hours as are not utilized by the County. The dedicated channel shall not be used by the County for carriage of commercial programming, advertising or any other non-access programming, but may be used for acknowledgment of underwriting sponsorship and solicitation of financial pledges for non-profit, community purposes . e. The County shall have sole responsibility for the programming and administration of the dedicated channel, including all personnel, facilities, equipment and material necessary to transmit access programming over the interconnect for cablecasting over such channel . Viacom shall not be responsible for the quality of the signal originated by the County over the interconnect. The County shall establish and administer all rules, regulations and procedures concerning the use and scheduling of access programming presented over the dedicated channel . f . The County agrees to comply with all applicable laws, ordinances, rules and regulations in connection with the 7 interconnect and such dedicated channel, including without limitation the rules and regulations of the FCC. 12 . The County and the Operators shall cooperate with one another with respect to construction of the interconnect, including without limitation a request to the FCC to extend the period for construction permitted under the FCC licenses through December 31, 1993, or such shorter extension as may be granted by the FCC. 13 . If, at any time three ( 3) years or more following the date the dedicated channel is first utilized for access programming, such channel is not in use and programmed with public, educational or governmental programming during at least fifty percent (50%) of the weekdays for at least fifty percent (50%) of the time during any consecutive nine ( 9) hour period selected by the County for ten ( 10) consecutive weeks, the channel shall revert to the exclusive use of Viacom. Upon such reversion, Viacom shall make time available elsewhere on its cable system for carriage of such access programming as may be provided by the County or members of the public. E. Second Dedicated Channel 1 . As a condition of approving any request for extension or renewal of a license under Division 58 of the County Ordinance Code or its successor, the County may require Viacom to make available and activate, effective on or after July 1, 2004, a second dedicated channel on its cable system for carriage of access programming provided by the County through the microwave interconnect, upon satisfaction of each of the following conditions : a. The first dedicated channel is in use and programmed with access programming during at least eighty percent of the weekdays for at least eighty percent of the time during any consecutive 9-hour period selected by the County for ten consecutive weeks . For purposes of this computation, character generated programming shall not count during such period. b. At least fifty percent of the programming presented on the first dedicated channel during such 10-week period is produced within or relates to Contra Costa County and is produced within one year of such 10-week period. C. Not more than thirty-three and one-third percent of the aggregate hours utilized for access programming on the first dedicated channel during such 10-week period represents repeat programming. 2 . If, at any time three years or more following activation of the second dedicated channel for access programming 8 by the County on at least three cable systems licensed by the County, the first dedicated channel does not satisfy the usage criteria established in Paragraph E. 1 above, the second dedicated channel shall revert for a period of three years to the exclusive use of Viacom. Following three years of exclusive use by Viacom, the second dedicated channel shall again be available to the County upon satisfaction of the terms set forth in Paragraph E. 1 above. 3 . If Viacom cannot allocate a second dedicated channel to the County without discontinuing existing programming assigned to the channel to be allocated to the County, the County shall conduct a survey of Viacom' s subscribers which establishes to the satisfaction of the board, in its discretion, that there is public interest in such second dedicated channel . Viacom shall, at the request of the County, distribute the survey to its subscribers at no expense to the County. 4 . The operation of the second dedicated channel shall be subject to the same terms and conditions as the first dedicated channel, as set forth in Paragraph D. 11 above. The Operators shall make reasonable efforts to agree upon one channel assignment for the second dedicated channel which shall be the same across all cable systems . F. Nature of Commitments Indemnification; Force Majeure; Completion of Cable Television Ordinance 1 . Provided that Viacom advances the funds for the purchase of the video production equipment and constructs and activates its portion of the interconnect at the time and in the manner specified in this Amended Agreement, upon renewal or extension of Viacom' s cable television license for the County, the County agrees that it shall not require Viacom to perform, before January 1, 2004, any additional obligations with respect to an interconnect, facilities or equipment for access programming, channel capacity for access programming, or funding with respect thereto. The commitments made by Viacom set out above constitute all commitments required by Viacom with respect to an interconnect, facilities or equipment for access programming, channel capacity for access programming, or funding required in connection therewith for the period through and including December 31, 2003 . No Operator complying with the undertakings set out above shall be required to provide any other interconnect or any additional facilities or equipment for access programming, channel capacity for access programming, commitments for the same or commitments for the support of access programming as a condition of the renewal or extension of its license through the period ending December 31, 2003 . 2 . The County shall indemnify, defend and hold Viacom, its affiliates and their respective officers, directors, employees and shareholders harmless from and against any and all liabilities, 9 losses, damages, claims, actions, causes of action, costs and expenses (including reasonable attorneys ' fees) arising from or in any manner related to (i) access programming provided by the County to Viacom for carriage on a shared-use basis during Phase I and (ii) the County' s production and/or cablecasting of programming utilizing the interconnect and dedicated channel(s) provided for this purpose, or any other use by the County of the interconnect or such dedicated channel (s) (except with respect to such programming as may be provided by Viacom over the dedicated channel(s) during any period allowed therefor by the County) , including without limitation liability for libel, slander, defamation, invasion of privacy or infringement of copyright, musical performing rights or any other right of any person. 3 . Viacom shall not be liable for any failure or delay in the performance of its obligations set forth herein resulting from acts or occurrences beyond its control, including without limitation, acts of war or riot, earthquake, flood, storm or other natural disasters, power or communications failures, inability to obtain goods or materials from normal sources of supply, strike or other labor strife, any limitations or other act or regulation by any government authority or any act of God. Viacom shall give the County notice of any such act or occurrence which causes or is anticipated to cause any such failure or delay promptly after becoming aware thereof. The period for performance shall be extended by the length of such failure or delay. This paragraph shall not apply to Viacom' s obligations to make advances (see Paragraph D.5) , which obligations Viacom shall perform without fail or delay. In the event that construction or activation of the interconnect is delayed pursuant to this paragraph, Viacom shall complete such construction and activation as soon as the cause of delay has been eliminated. COUNTY VIACOM Tele-Vue Systems, Inc. , a Washington corporation, doing By: business as Viacom Cable Chai , Board of Supervisors ATTEST: Phil Batchelor, Clerk , of the Board of Supervisors and By: Pal County Administrator Title-: V� By: By: Q � Title: Deputy 10 Note: For corporations, the contract must be signed by two officers. The first signature must be that of the chairman of the board, president or vice-president; the second signature must be that of the secretary, assistant secretary, chief financial officer or assistant treasurer. (Civ. Code, Sec. 1190 and Corps. Code, Sec. 313. ) The acknowledgment below must be signed by a Notary Public. ^-"CERTIFICAT CKNOWLEDGMENT State of ss . County of ) On the date written below, before me, the undersigned Notary Public, personally appeared the person(s) signing above for Consultant, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/ r their signature(s) on the instrument the person(s) , or entity upon behalf of which the person(s) acted, executed instrument. WITNESS my hand and o ficial seal . Dated: _" Notary Public [Notary' s Seal ) 11 ALL-PURPOSE ACKNOWLEDGMENT State of California ) County of -- On / / efore me, Datd me and itle o Officer (i.e. r me, Notary 00, KY' personally appeared , Name(s) of D ument igner(s) personally known to me (or proved to me on the basis of satisfactory evidence) to be the person("hose nameKis1mvsubscribed to the within instrument and acknowledged to me that he/s�heaheKexecuted the same in his/ (th'w�authorized capacity Its. , and that by his/he[ th'air_signaturesN) on the instrument the person or the entity upon behalf of which the personslacted, executed the instrument. WITNESS my hand and official seal. ROSEAANN JENNINGS COMM.#996687 M . NOTARY PUBLIC.CALIFORNIA ALAMF'.)A COUNTY N My COMM.Expires June 6,1997 igna ure f NotaV ' 1O" (Affix seal in the above blank space) Copyright©1993 by D T Consulting•P.O. Box 1573, Glendale, CA 91209-1573 Form# 1002