HomeMy WebLinkAboutOrd 1566ORDINANCE NO. 1566
ORDINANCE OF THE CITY OF BURLINGAMEAUTHORIZING AND CONSENTING
TO THE TRANSFER OF
A CABLE TELEVISION FRANCHISE FOR THE CITY OF BURLINGAME FROM
POST-NEWSWEEK PACIFIC CABLE, INC. TO POST-NEWSWEEK CABLE, INC.
TO TCI AMERICAN CABLE HOLDINGS H, L.P.
The CITY COUNCIL of the CITY OF BURLINGAME does hereby ordain as follows:
Section 1. Chapter 6.48 of the City of Burlingame Municipal Code ("CATV Code")
authorizes the City, as Grantor, to grant one or more non-exclusive franchises ("Franchise") to
construct, operate, install and maintain a cable communications system ("System") within the
City for a period of fifteen years. In accordance with the CATV Code and Ordinance No.
1210 adopted on June 15, 1981 ("Franchise Ordinance), and Resolution 44-81 adopted on June
15, 1981 ("Franchise Rules"), the City approved a Franchise for Capital Cities Peninsula
Cable, Inc. Subsequently, the Franchise was duly acquired by Post -Newsweek Pacific Cable,
Inc. The Franchise was extended for a period of one year by Resolution 28-96 to expire on
June 24, 1997. Post -Newsweek Pacific Cable, Inc. now desires to transfer and assign all of its
rights, title, and interest in the Franchise to Post -Newsweek Cable, Inc., which in turn wishes
to transfer the Franchise to TCI American Cable Holdings II, L.P. through an asset exchange
agreement dated as of November 15, 1996 ("Asset Exchange Agreement").
Section 2. The City has had an independent consultant evaluate the proposed transfers,
who has determined that the proposed transfers are consistent with the CATV Code an
d
Franchise Ordinance. The City Council has also held a noticed public hearing and received
and considered all information and testimony submitted by interested persons. Pursuant to the
CATV Code and the Franchise Ordinance, the City Council is willing to consent to the
transfer on the terms and conditions contained in the Franchise Transfer Agreement which is
attached as Exhibit A hereto.
Section 3. The City Council consents to the request for transfers of the City of
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Burlingame franchise for cable television described in Exhibit A from Post -Newsweek Pacific
Cable, Inc. to Post -Newsweek Cable, Inc. to TCI American Cable Holdings H, L.P. pursuant
to the CATV Code and the Franchise Ordinance and subject to the Franchise Transfer
Agreement attached as Exhibit A and the CATV Code, the Franchise Ordinance and the
Franchise Rules,
Section 4. The consent to the transfer from Post -Newsweek, Inc. to TCI American
Cable Holdings II, L.P. is conditioned on that transfer occurring before June 1, 1997. Should
the transfer not occur by that date, this consent to that transfer is withdrawn, and a new review
of the proposed transfer will be required as well as adoption of another ordinance for consent
from the City.
Section 5. This ordinance shall be published in accordance with law.
I, Judith A. Malfatti, City Clerk of the City of Burlingame, do hereby certify that the
foregoing Ordinan
ce was introduced at a meeting of the City Council of the City of
Burlingame on JANUARY 22 , 1997, , and the Ordinance was duly adopted at
a regular meeting of the City Council on FEBRUARY 3 1997 , by the
following vote:
AYES: COUNCILMEMBERS: HARRISON, JANNEY, KNIGHT, O'NAHONY, SPINELLI
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
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EXHIBIT "A"
THIS FRANCHISE ASSUMPTION AGREEMENT, ("Agreement" herein) made
and entered into this day of , 1997, at Burlingame, California, by and
between the CITY OF BURLINGAME, a municipal corporation of the State of California
("Grantor"), POST-NEWSWEEK PACIFIC CABLE, INC., a California corporation
("Pacific Cable"), POST-NEWSWEEK CABLE, INC., a Delaware corporation, and TCI
AMERICAN CABLE HOLDINGS H, L.P., a Colorado limited partnership ("TCI American
Cable").
A. Chapter 6.48 of the City of Burlingame Municipal Code ("CATV
Code") authorizes
B. In accordance with the CATV Code and Ordinan
the City,
as Grantor, to
grant one or more non-exclusive franchises
("Franchise") to construct,
operate, install
and maintain a cable communications system
("System") within
the City
for a period of
fifteen years.
ce No. 1210 adopted on
June 15, 1981 ("Franchise Ordinance), an
d Resolution 44-81 adopted on June 15, 1981
("Franchise Rules"), Grantor approved a Franchise for Capital Cities Peninsula Cable, Inc.
Co In connection with the Franchise, the Grantor and Capital Citi
es
Peninsula Cable, Inc. entered into a lease agreement pursuant to Resoluti
on 84-81 for the
installation and maintenance of cable television transmission facilities on Grantor property at
2832 Hillside Drive, Burli
ngame, CA ("Lease").
D. Subsequently, the Fran
chise was duly acquired by Pacific Cable and the
lease agreement duly assigned to Pacific Cable.
E. The Franchise was extended for a period of one year by Resolution 28 -
96 to expire on June 24, 1997.
F. Pacific Cable now desires to merge with and into Post -Newsweek and
thereby transfer and assign by operation of law all of its rights, titre, an
d interest in the
Franchise and Lite Lease to Post -Newsweek, which in turn wishes to transfer the Franchise and
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Lease to TCI American Cable through an asset exchange agreement dated as of November 15,
1996 ("Asset Exchange Agreement").
G. Grantor is willing to consent to the proposed assignments and transfers,
subject to the terms and conditions set forth herein.
NOW, THEREFORE, Grantor, Pacific Cable, Post -Newsweek, and TCI
American Cable do hereby agree as follows:
Section 1. FRANCHISE TRANSFER TO POST-NEWSWEEK
1.1 Conditional Approval. Pursuant to the provisions of the CATV Code and
subject to applicable state and federal law, Grantor, Pacific Cable, and Post -Newsweek do
hereby agree that Post -Newsweek shall be substituted for Pacific Cable as the "Grantee" under
the Franchise for the purposes of constructing, operating, installing, maintaining, and
reconstructing the System, subject to the terms and conditions contained herein.
1.2 Assumption by Post -Newsweek. Post -Newsweek does hereby expressly and
unreservedly agree to assume and fully perform all of the duties and obligations required of
"Grantee" under said Franchise.
1.3 Effective Date. The effective date of this transfer shall be the effective date of
the merger of Pacific Cable with and into Post -Newsweek which merger shall not occur pri
or
to the effective date of the City of Burlingame ordinance consenting to the transfer ("Post -
Newsweek Effective Date"). No rights under the Franchise shall accrue to Post -Newsweek
until and unless a) Pacific Cable and Post -Newsweek jointly notify the Grantor in writing that
the merger, transfer, and assignment from Pacific Cable to Post -Newsweek has been
completed, and b) Pacific Cable and Post -Newsweek, as applicable, shall have fully performed
their respective obligations contained herein to be performed prior to the Post -Newsweek
Effective Date.
Section 2. FRANCHISE TRANSFER TO TO AMERICAN CABI
2.1 Conditional Allpxoval of Transfer to TCI American Cable. Pursuant to the
provisions of the CATV Code and subject to applicable state and federal law, Grantor, Post -
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ost-
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Newsweek, and TCI American Cable do hereby agree that TCI American Cable shall be
substituted for Post -Newsweek as the "Grantee" under the Franchise for the purposes of
constructing, operating, installing, maintaining, and reconstructing the System, subject to the
terms and conditions contained herein.
2.2 Assumption by TCI American Cable. Upon transfer from Post -Newsweek, TCI
American Cable does hereby expressly and unreservedly agree to assume and fully perform all
of the duties and obligations required of "Grantee" under said Franchise.
2.3 Effective Date. The effective date of the transfer to TCI American Cable shall
be the date of the closing of the Asset Exchange Agreement, which closing shall not occur
prior to the effective date of the City of Burlingame ordinance consenting to the transfer ("TCI
Effective Date"). No rights under the Franchise shall accrue to TCI American Cable pursuant
to this Agreement until and unless a) Post -Newsweek and TCI American Cable jointly notify
the Grantor in writing that the transfer and assignment from Post -Newsweek to TCI American
Cable has been completed, and b) Pacific Cable, Post -Newsweek and TCI American Cable, as
applicable, shall have fully performed their respective obligations contained herein to be
performed prior to the TCI Effective Date,
Section 3. FRANCHISE FEES.
3.1 Post -Newsweek Liability. Post -Newsweek hereby agrees to assume all liability
for the payment of franchise fees to Grantor for the peri
od through the Post -Newsweek
Effective Date, and thereafter shall be subject to the requirements of the Franchise Ordinance
relating to the payment of franchise fees. In the event that, following the Post -Newsweek
Effective Date, it is determined that Pacific Cable has failed to pay to Grantor the full amount
of franchise fees pursuant to the CATV Code and the Franchise Ordinance, Post -Newsweek
hereby expressly agrees to assume all liability therefor, and to pay such an amount, and any
additional compensation required by the terms of the Franchise Ordinance to Grantor within
ten (10) days of written notification from Grantor.
3.2 Liability for Period between Effective Dates. Post -Newsweek hereby agrees to
assume all liability for the payment of franchise fees to Grantor from the period between the
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Post -N( sweek Effective Date through the TCI Effective Date, and thereafter shall be subject
to the requirements of the Franchise Ordinance relating to the payment of franchise fees.
Section 4. SECURITY FUND. AITHFUi_. PERFORMANCE BOND, AND
INSURANCE.
4.1 Post -Newsweek Responsibility. Prior to the Post -Newsweek Effective Date,
Post -Newsweek shall: a) deposit $50,000 in a letter of credit with the Grantor as the security
fund required under the Franchise; b) deliver to Grantor a faithful performance bond in the
amount and form provided for in the CATV Code and the Franchise Ordinance; and c) deliver
to Grantor proof of insurance in the amount and form provided for in the CATV Code and the
Franchise Ordinance.
4.2 TCI American Cable Responsibility. Prior to and effective as of the TCI
Effective Date, TCI American Cable shall: a) deposit $50,000 in a letter of credit with the
Grantor as the security fund required under the Franchise; b) deliver to Grantor a faithful
performance bond in the amount and form provided for in the CATV Code and the Franchise
Ordinance; and c) deliver to Grantor proof of insurance in the amount and form provided for
in the CATV Code and the Franchise Ordinance.
Section 5. PENDING LITIGATION. Except as set forth below, Pacific Cable
hereby represents and warrants to Gran
tor, as of the Post -Newsweek Effective Date, that there
is no claim, action, suit, proceeding, or investigation with respect to its operation of the
Franchise and its performance under the Franchise Ordinance. However, there is currently
pending before the Federal Communications Proceeding CUID No. CA0925 regarding
complaints about rate increases for its cable programming services tier. That proceeding is
currently on appeal. Pacific Cable, Post -Newsweek, and TCI American Cable represent and
warrant to Grantor that they have entered into an Asset Exchange Agreement that provides for
restitution or payment to ratepayers should the final FCC decision so require. However,
should the party designated as responsible for the payment or restitution in that Asset
Exchange Agreement fail to make such restitution or payment that may be ordered, if any,
Post -Newsweek or TCI American Cable, whichever is then the holder of the Franchise under
this Agreement, shall make such payment or restitution as may be required.
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Section 6. POSENEWSWEEK REPRESENTATIONS AND WARRANM.
Post -Newsweek represents and warrants to Grantor, that it possesses superior experience,
character, and background including, but not limited to, financial, legal and technical abilities
and resources required to construct, operate, install, and maintain the System in the City of
Burlingame. Post -Newsweek further warrants that it is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware and will be, as of the
Post -Newsweek Effective Date, and will continue to be duly qualified to do business as a
foreign corporation in California, and has all requisite corporate power and authority to
execute, deliver and perform this Agreement.
Section 7. TCI AMERICAN CABLE REPRESENTATIONS AND
WARRANTIES, TCI American Cable represents and warrants to Grantor, that as of the TCI
Effective Date, it will possess superior experience, character, and background including, but
not limited to, financial, legal and technical abilities and resources required to construct,
operate, install, and maintain the System in the City of Burlingame. TCI American Cable
further warrants that it is a limited partnership duly organized, validly existing and in good
standing under the laws of the state of Colorado and will be, as of the TCI Effective Date, and
will continue to be duly qualified to do business as a limited partnership in California, and has
all requisite power and authority as a partnership to execute, deliver and perform this
Agreement.
Section 8. ASSIGNMENT OF LEAS Post -Newsweek is the current assignee of
the Lease. Upon and effective as of the TCI Effective Date, Post -Newsweek shall transfer an
d
assign all of its right, title, and interest in the Lease to TCI American Cable, and TCI
American Cable shall assume and be bound by all of the terms and conditions of the Lease.
Grantor hereby consents to that assignment.
Section 9. MISCELLANEOUS,
9.1 Severability. If any term, covenant, condition, or provision of this Agreement or
the application thereof to any person or circumstances is, to any extent, invalid or
unenforceable, the remaining terms, covenants, conditions, and provisions of this Agreement,
or the application of such term, covenant, condition, or provision to persons or circumstances
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other than those to which it is held invalid or unenforceable, shall not be affected thereby, and
each term, covenant, condition, and provision of this Agreement shall be valid and enforced to
the fullest extent permitted by law.
9.2 Waiver. The consent to the transfer does not constitute a waiver of rights
belonging to Grantor under the Franchise.
parties hereby recognize and agree that provisions in the CATV Code, Franchise Ordinance,
and Franchise Rules governing the amount of the rates to be charged under the Franchise have
been preempted by State and Federal law.
9.4 Notices. All notices required under this Agreement shall be in writing and shall
be deemed to have been duly given when delivered personally or mailed by fust class mail,
postage pre -paid to the following address, as applicable:
Grantor: City of Burlingame
501 Primrose Road
Burlingame, CA 94010-3997
ATTN: City Manager
Pacific Cable: Post -Newsweek Pacific Cable, Inc.
Wo Post -Newsweek Cable
4742 N. 24th Street, Suite 270
Phoenix, AZ 85016
ATTN: General Counsel
Post -Newsweek: Post -Newsweek Cable, Inc.
4742 N. 24th Street, Suite 270
Phoenix, AZ 85016
ATTN: General Counsel
TCI American TCI American Cable Holdings II, L.P.
Cable: c/o TCI Cablevision of California, Inc.
1850 Mount Diablo Boulevard, Suite 225
Walnut Creek, CA 94596
ATTN: Franchise Government Affairs Director
or to such other address as any party will have furn
ished to the other by notice given in
accordance with this section.
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9.5 Governing Law. This Agreement shall be interpreted in accordance with, and
governed by, the substantive and procedural law of the State of California. The parties hereby
consent to the jurisdiction of the courts of the State of California in resolving any dispute
arising under or concerning this Agreement. Venue for any such action shall be in either San
Mateo or Santa Clara County in the State of California.
9.6 No Further Amend ent I*�ntended Nothing contained herein is intended to
amend or modify anything contained in the CATV Code, the Franchise Ordinance, or the
Franchise Rules, except as expressly provided in this Agreement. No extension of the
Franchise is intended or granted by this Agreement, and should the TCI Effective Date not
occur before June 1, 1997, the consent to the transfer to TCI American Cable is withdrawn
and will require execution of a separate transfer agreement between Post -Newsweek, TCI
American Cable, and Grantor.
IN WITNESS WHEREOF, Grantor, Pacific Cable, Post -Newsweek, and TCI
American Cable have executed this Agreement on the day and year first above written.
GRANTOR: PACIFIC CABLE:
CITY OF BURLINGAME, POST-NEWSWEEK PACIFIC CABLE, INC.
A California Municipal Corporation A California Corporation
By: By:
POST-NEWSWEEK:
POST-NEWSWEEK CABLE, INC
A Delaware Corporation
�I
TCI American Cable:
TCI AMERICAN CABLE HOLDINGS II, L.P.
A Colorado Limited Partnership
By:
TCI CABLEVISION OF MINNESOTA, INC.
General Partner
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