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