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Home My WebLink About05778f ORDINANCE NO. 5778 AN ORDINANCE GRANTING A NONEXCLUSIVE PERMIT FOR THE OPERATION OF A CABLE TELEVISION SYSTEM TO TCI CABLEVISION OF COLORADO, INC. WHEREAS, TCI Cablevision of Colorado, Inc.'s nonexclusive permit for the operation of a cable television system within the City issued pursuant to Section 14 -15 -1 et seq. of the 1971 Code of Ordinances of the City of Pueblo expired August 23, 1991 and was extended by Resolution No. 6785 to December 31, 1991, and WHEREAS, legal questions exist as to whether the renewal provisions of the Cable Communications Policy Act of 1984 are applicable to the permit and whether TCI Cablevision of Colorado, Inc. and its predecessors in interest held a valid franchise to, or were lawfully providing cable television services within the City, and WHEREAS, the City Council submitted to a vote of the people on two occasions an ordinance granting a cable television fran- chise to TCI Cablevision of Colorado, Inc. which ordinances were rejected, and WHEREAS, rather than engage in protracted and costly litiga- tion in an attempt to resolve the existing legal questions and to provide continuous cable television services to the residents of the City who desire such services, the City and TCI Cablevision of Colorado, Inc. are willing to submit an ordinance granting a cable television franchise to TCI Cablevision of Colorado, Inc. at the general municipal election to be held November 2, 1993, and WHEREAS, for such purposes, the City is willing to grant to TCI Cablevision of Colorado, Inc. a nonexclusive permit to operate a cable television system within the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTMN 1. In order to provide cable television services to the resi- dents of the City who desire such service and pursuant to the authority granted to the City Council by Section 16 -9 of the Charter of the City of Pueblo, the City Council does hereby grant to TCI Cablevision of Colorado, Inc. (herein "TCI Cablevision ") a temporary nonexclusive permit to operate a cable television system within the City for the period from January 1, 1992 to December 31, 1993 subject to and upon the following terms and conditions: (a) TCI Cablevision shall operate and conduct the cable television system and provide services subject to and in compliance with the provisions of (i) Section 14 -15 -1, et seq. of the 1971 Code of Ordinances of the City, except as same may be in conflict with and preempted by the Cable Communication Policy Act of 1984, (ii) all applicable provisions of the Cable Communica- tions Policy Act of 1984 as amended and rules and regulations of the Federal Communications Commission issued thereunder, and (iii) the provisions of this Section 1. (b) For the use of the streets and for the purposes of providing revenue with which to offset the cost of regulation arising out of issuance of such permit, TCI Cablevision shall pay to the City without deduction or offset (i) three percent (3%) of its gross revenue during the period January 1, 1992 through September 30, 1992, and (ii) five percent (5 %) of its gross revenue during the period from October 1, 1992 through December 31, 1993. The amount payable under (i) shall be paid on or before March 31, 1993 and the amount payable under (ii) shall be paid quarterly no more than forty -five days after the closing of such quarter. The term "gross revenue" shall have the same meaning as defined in Ordinance No. 5729. The payment herein specified shall not exempt TCI Cablevision from any lawful taxation upon its property, including but not limited to, sales and use tax. TCI Cablevision's billings of its cable television subscribers shall not include any separate or itemized notation of the amounts -2- payable hereunder. All past due amounts payable hereunder shall accrue interest at the rate of 1 -1 /2o per month. (c) TCI Cablevision will immediately commence the design and order material for a fiber return line from Pueblo Community College for educational programming and install and activate such project no later than March 31, 1993. (d) TCI Cablevision will submit to a vote of the people at the general municipal election to be held November 2, 1993 a cable television franchise ordinance in substantially the same form and content as Ordinance No. 5729 with such modifications and changes thereto as the City Council and TCI Cablevision shall mutually approve, which changes shall include, but not be limited to, a five (5) year franchise which shall automatically extend on the same terms and conditions without further action for an additional ten (10) year term upon TCI Cablevision completing the following within the initial five (5) year franchise term and verifying such completion to the City: (i) install a minimum of 100 miles of fiber optic backbone system; (ii) upgrade the system to a capacity of 550 megahertz or more capable of accommodating 75 video channels expandable to 150 channels using digital fiber compression; (iii) make available and operational all public, educational and governmental access channels required by the franchise; and, (iv) make available and operational all free distribution services required by Article XXVII of Ordinance No. -3- 5729. (e) TCI Cablevision will not charge a subscriber fee for any premium service or premium channel unless expressly ordered by the subscriber. SECTION 2 The permit granted by this Ordinance shall not create nor vest in TCI Cablevision of Colorado, Inc. any right or remedy greater than or in addition to the rights and remedies herein expressly granted. Neither the City nor TCI Cablevision of Colorado, Inc. by this Ordinance nor the temporary permit hereby granted waive, release or abandon in any manner their claims or defenses existing on December 31, 1991 with respect to (i) the validity of any cable television permit under which TCI Cablevision of Colorado, Inc. or its predecessor in interest operated or conducted a cable television system within the City, (ii) whether TCI Cablevision of Colorado, Inc. and its predecessor in interest were lawfully providing cable television services with or without a franchise on July 1, 1984 and thereafter, (iii) whether the §626 renewal provisions of the Cable Communications Policy Act of 1984 are applicable or available to TCI Cablevision of Colorado, Inc., (iv) whether TCI Cablevision of Colorado, Inc. timely and properly invoked and pursued the renewal provisions of §626 of the Cable Communications Policy Act of 1984, and (v) whether any action taken or omitted by the franchising authority as defined in the Cable Communication Policy Act of 1984 adversely affected TCI Cablevision of Colorado, Inc. The City does agree that all applicable statutes of limita- -4- tions or repose relating to the commencement of any action or other proceedings with respect to the matters set forth in the preceding paragraph, including §635 of the Cable Communications Policy Act of 1984 and any other applicable federal or state law, shall be tolled during the period from December 31, 1991 to December 31, 1993 and such twenty -four (24) month period shall not be computed as part of the period within which any such action or proceedings must be brought. SECTION 3. This Ordinance shall become effective upon final passage, however, the permit hereby granted to TCI Cablevision of Colorado, Inc. shall not become effective until TCI Cablevision of Colorado, Inc. executes and files with the City Clerk the attached Acceptance of Permit. If the attached Acceptance of Permit is not executed and filed with the City Clerk on or before November 30. 1992, the permit hereby granted shall become null and void. ATTEST: I- A/1, 1� Ai, _ r lit lerk INTRODUCED: September 28 , 1992 By JOHN CALIFANO Councilperson APPROVED: Z� Lt Presid t of the City Council TJ 62.32 -5- ACCEPTANCE OF PERMIT TCI Cablevision of Colorado, Inc. does hereby accept the temporary nonexclusive permit granted to it by Ordinance No. 5778 adopted by the City Council of the City of Pueblo on November 9, 1992 and agrees to faithfully and continuously operate and conduct a cable television system and provide services within the City of Pueblo subject to and in full compliance with all terms and provisions of Section 1 of Ordinance No. 5778 which are incorporated herein by reference. TCI Cablevision of Colorado, Inc. does hereby acknowledge and agree that (a) the permit granted by Ordinance No. 5778 does not create nor vest in TCI Cablevision of Colorado, Inc. any right or remedy greater than or in addition to the rights and remedies expressly granted by said Ordinance, and (b) neither the City nor TCI Cablevision of Colorado, Inc. by the issuance or acceptance of such permit waives, releases or abandons in any manner their respective claims or defenses existing on December 31, 1991 with respect to (i) the validity of any cable television permits under which TCI Cablevision of Colorado, Inc. or its predecessor in interest operated or conducted a cable television system within the City, (ii) whether TCI Cablevision of Colorado, Inc. and its predecessor in interest were lawfully providing cable television services with or without a franchise on July 1, 1984 and there- after, (iii) whether the §626 renewal provisions of the Cable Communications Policy Act of 1984 are applicable or available to TCI Cablevision of Colorado, Inc., (iv) whether TCI Cablevision of Colorado, Inc. timely and properly invoked and pursued the provisions of §626 of the Cable Communications Policy Act of 1984, and (v) whether any action taken or omitted by the franchising authority as defined in the Cable Communications Act of 1984 adversely affected TCI Cablevision of Colorado, Inc. TCI Cablevision of Colorado, Inc. does hereby agree that all applicable statutes of limitations or repose relating to the commencement of any action or other proceedings with respect to the matters set forth in the preceding paragraph, including §635 of the Cable Communications Policy Act of 1984 and any other applicable federal or state law, shall be tolled during the period from December 31, 1991 to December 31, 1993 and such twenty -four month period shall not be computed as part of the period within which any such action or proceedings must be brought. Signed this day of November, 1992. TCI CABLEVISION OF COLORADO, INC. By Vice Pr ent COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) The foregoing instrument was acknowledged before me this _1�-3 4 - day of November, 1992 by as Vice President of TCI Cablevision of Colorad , Inc., a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public TJ 62.33 -2-