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HomeMy WebLinkAbout024280 ORD - 11/14/2000ORDINANCE AUTHORIZING THE TRANSFER OF A CABLE TELEVISION FRANCHISE FROM TCI CABLEVISION OF TEXAS, INC. TO TEXAS CABLE PARTNERS, L.P., SUBJECT TO REQUIREMENTS WHEREAS, TCI Cablevision of Texas, Inc. CTCI") currently owns and operates a cable television system (the "System") operating in the City of Corpus Christi (the "City") and is the duly authorized holder of a franchise granted by the City to Athena Cablevision of Corpus Christi, Inc. in Ordinance No. 16133, and passed by the City Council on March 25, 1981, and amended March 7, 1989 in Ordinance No. 20616 (the "Franchise"). WHEREAS, TCI and Texas Cable Partners, L.P. ("Applicant") have entered into an agreement (the "Exchange Agreement"), dated August 23, 2000, pursuant to which TCI has agreed to transfer all of the assets of the System, including its rights under the Franchise, to Applicant or its subsidiaries (the "Transaction"); and WHEREAS, TCI and Applicant have requested consent by the City to the Transaction in accordance with the requirements of the Franchise and have filed an FCC Form 394 (the "Transfer Application") with the City describing both the Applicant and the Transactions; and WHEREAS, the City has reviewed the Transfer Application, examined the legal, financial, and technical qualifications of Applicant, followed all required procedures in order to consider and act upon the Transfer Application, considered a Report prepared by its Consultants, and considered the comments of all interested parties; and WHEREAS, the Franchise is in full force and effect without default thereunder by TCI as of the date hereof in accordance with its terms and conditions as set forth therein, and Applicant has agreed to comply with the Franchise and applicable law from and after the completion of the transfer; and WHEREAS, the City believes it is in the interest of the City to approve the Transfer Application and the transfer of the Franchise to Applicant, all as described in the Transfer Application, and subject to the requirements of this Ordinance to transfer the franchise (the "Transfer Ordinance"); and WHEREAS, the term of the Franchise expires on April 16, 2001 and TCI and Applicant have requested an extension of six months to enable Applicant, if necessary, to have sufficient time after closing of the Transaction to complete a franchise renewal process with City; and 024280 WHEREAS, City understands that the process for approving this Transfer Ordinance has, included certain other understandings, which are included in the letter dated October 2, 2000 from Time Warner to the City's Consultant, and which is hereby attached and made part of this Transfer Ordinance and compliance with which is in part consideration for adoption of this Transfer Ordinance; and WHEREAS, the City Charter requires that an Ordinance be adopted to extend the term of the Franchise and to establish a change in the franchise fee payment requirements of the Franchise, with acceptance by TCI and Applicant; and WHEREAS, Consultants for the City have recommended that the City approve the Transfer Application, subject to the written acceptance, attached and made part of this Transfer Ordinance, and further a written acceptance, after adoption, of the Ordinance to extend the term of the Franchise and establish a change in the franchise fee payment requirements, (the "Extension Ordinance"), attached to this Transfer Ordinance, and made part of this Transfer Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI AS FOLLOWS: SECTION 1. The City hereby consents to the Transaction, all in accordance with the terms of the Franchise, subject to adoption by the City of the Extension Ordinance attached, and acceptance by TCI and Applicant, on the form attached, of this Transfer Ordinance within seven days after its adoption, and the written acceptance by TCI and acknowledgment by Applicant of the attached Extension Ordinance, within ten days after its adoption. SECTION 2. The City confirms that (a) the Franchise was properly granted or transferred to TCI, (b) the Franchise represents the entire understanding of the parties and TCI has no obligations to the City other than those specifically stated in the Franchise, this Transfer Ordinance and the Extension Ordinance attached, and (c) to the best of City's knowledge, TCI is materially in compliance with the provisions of the Franchise with the exception of connections to the City Marina and International Airport and there otherwise exists no fact or circumstances known to the City which constitutes or which, with the passage of time or the giving of notice or both, would constitute a material default or breach under the Franchise or would allow City to cancel or terminate the rights thereunder, except upon the expiration of the full term of the Franchise, subject to applicable law, including Section 626 of the Cable Act. SECTION 3. This Transfer Ordinance shall be deemed effective for purposes of the Transaction upon the consummation of the Transaction contemplated by the Exchange Agreement. SECTION 4. This Transfer Ordinance shall have the force of a continuing agreement with TCI and Applicant, and the City shall not amend or otherwise alter this Transfer Ordinance without the consent of TCI and Applicant. SECTION 5. The letter dated October 2, 2000, from Time Warner to the City's Consultant, attached is made part of this Transfer Ordinance. SECTION 6. The Extension Ordinance attached is made part of this Transfer Ordinance. SECTION 7. Upon the consummation of the Transaction, Applicant assumes all the benefits and liabilities under the Franchise. SECTION 8. This Transfer Ordinance is conditional upon compliance with TCI and Applicant to the terms and conditions of this Transfer Ordinance, and after adoption of this Transfer Ordinance and their written Acceptance on the form attached and made part of this Transfer Ordinance being filed with the City within ten days after final adoption; and, the written unconditional Acceptance by TCI and acknowledgment by Applicant to the terms of the Extension Ordinance, attached hereto, within ten days after its final adoption. SECTION 9. This Transfer Ordinance shall be effective, conditional on TCI and/or Applicant paying to City, together with the acceptance described in Section 8 hereof, reimbursement of City costs in the amount of $5,000. Samuel L. Neal, Jr. Javier D. Colmenero Melody Cooper Henry Garrett Dr. Arnold Gonzales Rex A. Kinnison Betty Jean Longoria John Longoria Mark Scott Th he foregoing Ordinance was read for the second time and passed finally on this _~da~y of ~jV(.~(~J~ .C2Q",~ , by the fo owing vote: Samuel L. Neal, Jr. Javier D. Colmenero Melody Cooper Henry Garrett Dr. Arnold Gonzales Rex A. Kinnison CT~.L Betty Jean Longoria John Longoria Mark Scott PASSED AND APPROVED, this the . ATTEST: City Secretary APPROVED: City of Corpus Christi, Texas dayof By Jimm ay, CitiAttorney 024289 ATTEST: Clerk I, the undersigned, being the duly appointed, qualified, and acting City Secretary of the City of Corpus Christi, hereby certify that the foregoing Ordinance N'.o~ is a true, correct, and accurate copy as duly and lawfully passed and adopt d by the governing body of the City of Corpus Christi on the i~l~lay of Y~ o~f~000. 0CT-~-8000 10: 48 FROM: 8ALLER HERBST LAW 6123394?89 DC'r-8~-~28 11:28 TIME ~ ~ T0:361 8~ 3239 p,002/005 se: TIME WARNER L CAB E o~tobsr 2, 2000 lye. Adrian Herbst, Esq. THE BALLEK HIfIRBST LAW OROUP, P.C. ~tl ~. Omi~ F_x~.~,~-c Bld~ ~Hs, ~ 55415-1413 City dCo~p~ cbzisti (he, r~iebr the "CitT') Dcax Adrian: I am w~itl-__, in ~esponse to our ~ ~slephone ~on~enation in whioh you requss~l a lst~r ~ forth our undentandi~ offhose points that w~ diseusssd z~l~y to~ofi~r wRh c~fiain MmxranCes regar~-.o. the ri~ of the City. Bas~l upon our v~ious conversatio~s~ I believe that we have sn4~t at the followin~ und~a~ndin~ re~ardinB tl~ process ~t~ the C~, (1) Theform~walproc~vAIlbeto!ledoriabled iofadlitseinfonnalfnm~hlse renewsl n~gotiations between r~pteseatatives of the City and T~m~ Warn~ Cable. (2) Repres~n~iv~s of Time Wamer Cable sad ~ae City ~]~ ~ ~ 1~ one ~ m~ ~ ~ld ~ (3) Th~Cltystafftolplhe~withyouwilh~m~ne~itoffieCi~C~3un~ilspl~ovalofthe i/m~-fer of the franchise to T~P~~CiW's~s~r~ 10, 2~0. (4) Tmae Ws. mer Cable has x~co~ to AT&T that in ~Z. han_q forthe City's s~proval of ~e transfu dsscribed in (3) ab0vs on Ootober 10~ that tt~ fiS~hise fee be ino~ased' ~ effs~tive N'ovenxb~- 1, 2000. It is my ~anttin~ ~ AT&T Ls amenable to this (5) The franchls: tcrm will be extended six months. Lcttcr-Mr. Adr~n Hcrbst, Bsq. October 2, 2000 Pa~c 2 (6) The City and Time Waxnor Cable will commeuce inf0oxmal rcaewal oegotiatioxts as soon as xcasonably possible depending upon the schedules of nccessary pcol~le. As I explained, any renewal aF~zemcnt cxttercd into must he sul~ect to the closing of the AT&T = Time Warnet Cable ~aasa~tion. Itis 9urinten~i~nt~tb~thp~rti~srescfv~nyanda~ri~htst~mtth~xn~yh~v~und~.~p~icab~v Ixw dming thc procc~s sa fotth above. For cxamplc, tl~process set forth above does not slter, in any way, the City's rights xelated to its rcvlew ofthc mms~ ofdsc franchise to Texas Cable Patinert Similarly, under this pmccss, nci~aer pa~y ~ lose or surmadet any fights that it have under the franchise renewal procedures set for ixx the Cable Act. The process set forth atbove is simply intended to be an L~ormal undctstanding of how the l~zti~s will appronch the pendin2 Izansfer and the sal~xtucnt fxanchlsc xcncwal. I trust that this letter will address any conccam of the City. Pleasc do not hesitate to 2ire me a call should you havc any qucstions, cc: Gordon Harp Carol Johnson ACCEPTANCE OF ORDINANCE RELATING TO TRANSFER OF A FRANCHISE FOR A CABLE TELEVISION SYSTEM IN THE CITY OF CORPUS CHRISTI, TEXAS WHEREAS, the City of Corpus Christi, Texas ("City") by action of its governing body on , 2000, adopted an Ordinance No. ("Transfer Ordinance") approving the transfer of ownership of the Franchise of the cable system and Franchise held by TCI Cablevision of Texas, Inc. ("TCI") to Texas Cable Partners, L.P. ("Applicant") and subject to an Extension Ordinance and this Acceptance. NOW, THEREFORE, pursuant to the terms and requirements of the Franchise and the Transfer Ordinance, and in consideration of the City's approval of the transfer of the Franchise, Applicant accepts the Franchise and all conditions in the Transfer Ordinance with the understanding its acceptance is hereby subject to the acceptance as herein required of TCI, and, TCI provides hereby its acceptance of the Transfer Ordinance and, will provide its written acceptance to City of the Extension Ordinance attached as an exhibit to the Transfer Ordinance, Applicant and TCI make the following representations and warranties to the City: Applicant is a duly organized, validly existing, and in good standing under the laws of the State of Delaware, and is authorized to do business in Texas and has full power, authority, and legal capacity to execute, deliver, and perform this Acceptance and perform the terms and conditions of the Franchise and the Transfer Ordinance. For Applicant, all actions necessary to authorize the execution and delivery of this Acceptance and the performance of the Franchise and Transfer Ordinance, have been duly authorized by all necessary and required proceedings. The execution and delivery of this Acceptance by Applicant and the performance of the terms of the Franchise and the Transfer Ordinance and the Extension Ordinance made part of the Transfer Ordinance, does not and will not conflict with or result in the breach or termination of, or constitute a default under, any indenture or instrument with respect to the borrowing of money, or any material contract, lease, or agreement, or order, judgment, or decree or any law, rule, or regulation to which Applicant is a party or by which it or any of its property is bound or affected. Applicant acknowledges that City has furnished to it copies of the existing Franchise between TCI and the City, the City's Master Cable Services Regulatory Ordinance, and information relating to the pending franchise renewal. Further, Applicant acknowledges that it has read and fully understands all of these materials and documents. Applicant has carefully read the terms and conditions of the Franchise, the Master Cable Services Regulatory Ordinance of the City, the Transfer Ordinance, and the Extension Ordinance attached to the Transfer Ordinance, and accepts the rights, duties, and obligations created thereunder, subject to its rights under applicable state and federal law and without waiving any rights Applicant may have. Applicant agrees that it will promptly commence the process of franchise renewal and continue to negotiate in good faith according to a schedule agreed to between Applicant and City. Applicant represents that it has the legal, technical, and financial qualifications to fully and timely perform all obligations of the Franchise, the Transfer Ordinance, and the Extension Ordinance attached to the Transfer Ordinance, and agrees to be bound by each. Applicant or any of its representatives or agents have not committed any illegal acts or engaged in any wrongful conduct contrary to, or in violation of, any federal, state, or local law or regulation in connection with the obtaining of the Franchise. TCI represents and acknowledges that the Transfer Ordinance and the Extension Ordinance attached to the Transfer Ordinance, are in part consideration of TCI's cooperation and assistance relating to the process of renewal of the Franchise and the obligations of TCI as set forth in the Transfer Ordinance, including acceptance by TCI of the Extension Ordinance after adoption by City and with the understanding that the terms of the Extension Ordinance shall remain in full force and effect even in the event the Transaction approved by the Transfer Ordinance is not closed. Dated: ,2000 TEXAS CABLE PARTNERS, L.P. By Its STATE OF ) COUNTY OF ) The foregoing instrument was subscribed and sworn to before me this of ,2000, by , the of Texas Cable Partners, L.P. day SEAL Notary Public Dated: ,2000 TCI CABLEVISION OF TEXAS, INC. By Its STATE OF ) COUNTY OF ) The foregoing instrument was subscribed and sworn to before me this __ of ,2000, by , the of TCI Cablevision of Texas, Inc. day SEAL Notary, Public