HomeMy WebLinkAbout96-79 - Transfer of Control of Cable Television Franchise from Continental Cablevision, Inc to U.S. West, IncRESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF COSTA MESA, CALIFORNIA, APPROVING
THE TRANSFER OF CONTROL OF A CABLE
TELEVISION FRANCHISE FROM CONTINENTAL
CABLEVISION, INC., TO U. S. WEST, INC.
THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY
RESOLVE AS FOLLOWS:
WHEREAS, in 1983 and pursuant to Ordinance No. 83-2, the City Council of the City
of Costa Mesa added Title 19 to the Costa Mesa Municipal Code (Section 19-05, et seq.)
establishing regulations for granting and operating cable communications systems (the "Cable
Television Ordinance"). Since then, the Cable Television Ordinance has been amended on
several occasions, including pursuant to Ordinance Nos. 84-6 and 93-15; and
WHEREAS, pursuant to the Cable Television Ordinance, the City entered into a
Franchise Agreement with Copley/Colony Cablevision of Costa Mesa, Inc. ("Grantee"), effective
March 5, 1984, as amended by the Amendment to Franchise Agreement effective June 22, 1989;
and
WHEREAS, pursuant to the Cable Television Ordinance, the City adopted Resolution
No. 95-58 to approve a transfer of control of the Grantee to Continental Cablevision, Inc.
("Continental") from the Providence Journal Company effective June 19, 1995; and
WHEREAS, Grantee is a wholly-owned subsidiary of Continental; and
WHEREAS, Continental has controlled the operation of the franchise from June 19,
1995, to the present; and
WHEREAS, Costa Mesa Municipal Code Section 19-250(c) requires City Council to
consent to any transfer or change of control of the franchise; and
WHEREAS, PJC and Continental Cablevision, Inc. ("Continental") have entered into an
Amended and Restated Agreement and Plan of Merger dated as of November 18, 1994 (the
"Agreement"), subject to, among other considerations, any required approval of the franchising
authorities with respect thereto; and
WHEREAS, FCC Regulations (47 CFR Section 76.502(i)(1) require that in order for a
cable operator to obtain City approval of a transfer or change in control of the franchise, it must
submit to the City a FCC Form 394 and any other information as may be required by the City;
and
WHEREAS, on February 27, 1996, U. S. West, Inc., a Delaware Corporation,
announced a definitive agreement to merge with Continental, a Delaware Corporation, the parent
corporation of Grantee, subject to, among other considerations, any required approval of the
franchising authorities with respect thereto; and
WHEREAS, upon consummation of the merger contemplated by the Agreement and Plan
of Merger (the "Transaction"), Continental will merge with U. S. West, Inc., or with a wholly-
owned subsidiary of U. S. West, Inc., and the Grantee under the control of U. S. West, Inc.,
or its wholly-owned subsidiary ("US West"), will continue to be bound by all.existing terms,
conditions, and obligations under the franchise previously granted by the City to Grantee; and
WHEREAS, on May 3, 1996, US West and Continental filed an FCC Form 394 with the
City requesting City Council approval of the transfer of control of Continental, the ultimate
parent corporation of Grantee to US West (hereinafter referred to as the "Transfer"); and
WHEREAS, effect of the Transaction and the Transfer will change effective control of
the Grantee from Continental to US West; and
WHEREAS, US West is a publicly owned company; and
WHEREAS, in support of its Form 394 Application, US West and Continental have
submitted to the City the following documents which are on file with the City Clerk, and are
collectively referred to as the "Transfer Documents":
1. Form 394 with 6 exhibits, filed with the City on May 3, 1996;
2. Letter with a one volume appendix from US West to the City of Costa Mesa,
dated May 3, 1996; and
WHEREAS, the Conference Report to the 1992 Federal Cable Television Act, in
discussing franchise renewal under Section 626 of the Communications Act of 1934 (47 U.S.C.
Section 546) states that transferees of a cable television franchise are not responsible for
breaches of the franchise committed by the transferor. Consequently, the City Council finds that
it is necessary that any Franchise noncompliance issues be remedied prior to the Transfer; and
WHEREAS, Grantee has voluntarily agreed to reimburse the City for its reasonable
administrative, accounting, and legal costs incurred in processing its application for approval of
the Transfer; and
WHEREAS, the City has evaluated the Grantee's compliance with the Cable Television
Ordinance and the Franchise Agreement; and
WHEREAS, the City Council finds that the Grantee is in compliance with the Cable
Television Ordinance and the Franchise Agreement;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA MESA,
CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The Costa Mesa City Council finds that, based upon the representations
contained in the Transfer Documents, and the terms and conditions of this Resolution, US West
has the legal, financial, character, technical and public interest qualifications to control the
Franchise. The City Council hereby approves and consents to the transfer of control, subject
to the Grantee and US West complying with the terms and conditions of this Resolution.
SECTION 2. Upon the close of the Transfer, Grantee and US West shall comply with
and be bound by the following documents:
1. The Cable Television Ordinance;
2. The Franchise Agreement; and
3. This Resolution and the Exhibits attached to it.
SECTION 3. Grantee shall comply with all lawful rate regulation orders issued against
it pursuant to Section 76.900 et seq. of the FCC Regulations.
SECTION 4. Grantee and US West agree that notwithstanding Section 521 et seq. of
Title 47 of the United States Code, following the close of the Transfer, the Grantee, under the
control of US West, shall assume responsibility with respect to the Franchise for all prior acts
or omissions of the Grantee while under the control of Continental. The City Council hereby
finds that the Franchise is presently in full force and effect. The City Council further finds that
the Grantee is currently in compliance with the Franchise and its obligations.
SECTION 5. Grantee shall continue to operate the existing public access studio located
in Costa Mesa, California, and the related facilities required for public, educational, and
governmental ("PEG") access at the same level of effort as currently provided as of the effective
date of this Resolution consistent with the Franchise. Said facilities shall be made available for
use by City residents.
SECTION 6. Grantee and US West shall assume the obligations of Continental in its
application of March 6, 1996, to the Federal Communications Commission to extend to the City
of Costa Mesa the "Social Contract" as set forth at FCC 95-137.
SECTION 7. Grantee shall comply with the Customer Service Standards of the FCC
(Section 76.304 of Title 47 of the Code of Federal Regulations) as adopted by the City at Section
19-60(I) of the Cable Television Ordinance.
SECTION 8. Upon notice to the City, US West may thereafter assign or transfer the
franchise to an entity controlled by or under common control with US West.
SECTION 9. Grantee shall reimburse the City for its actual administrative, accounting,
consulting, and legal costs to the extent they are reasonably incurred in processing the
application for approval of the Transfer. The reimbursement amount shall not exceed Three
Thousand Five Hundred Dollars ($3,500.00) and the application fee of $250.00 paid by
Continental shall be applied to those costs. Grantee shall reimburse the City said costs
regardless of whether the Transaction and the Transfer closes. The City shall provide Grantee
with an itemized statement of the amount due within thirty (30) days after the effective date of
the Resolution approving the Transfer and Grantee shall reimburse the City for the reasonable
costs included on the statement within thirty (30) days after receipt of the statement. of Federal
SECTION 10. Failure of Grantee to comply with any material provision of this
Resolution or the Franchise shall be grounds for the City to invoke any of the City's remedies
under and in accordance with the Franchise.
SECTION 11. The consent herein granted shall be effective upon the closing of the
Transaction and the City shall be notified by letter directed to the City Clerk promptly upon such
closing.
SECTION 12. Grantee and US West shall, within thirty (30) days of the close of the
Transaction, file in the office of. the City Clerk, a written Acceptance and Guarantee of this
Resolution executed in the form of Exhibit A, attached hereto. By executing and filing the
Acceptance and Guarantee, Grantee and US West guarantee performance of all obligations
hereunder. The Acceptance and Guarantee shall be notarized so as to indicate that the persons
executing the Acceptance and Guarantee have the authority to bind Grantee and US West.
Failure of Grantee and US West to timely file the Acceptance and Guarantee shall void the
approval of the Transfer.
SECTION 13. Grantee and US West acknowledge that the City has provided the notice
required pursuant to Revenue and Taxation Code Section 107.6.
SECTION 14. The City Manager and the City Attorney, or their designees, are hereby
authorized and empowered to execute any documents necessary in their discretion to implement
the approvals contained herein.
PASSED AND ADOPTED this 5th day of August, 1996.
ATTEST:
1.
Deputy City C t
k of the City of Costa Mesa
el�= eZt4-=le'
Ma r f the City of Costa esa
VED AS TO FORM
-CITY ATTORNEY
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, MARY T. ELLIOTT, Deputy City Clerk and ex -officio Clerk of the City Council of
the City of Costa Mesa, hereby certify that the above and foregoing Resolution No. 94-,7q
was duly and regularly passed and adopted by the said City Council at a regular meeting thereof,
held on the 5th day of August, 1996, by the following roll call vote:
AYES: Erickson, Buffa, Hornbuckle, Genis, Monahan
NOES: None
ABSENT: None
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the City
of Costa Mesa this 6th day of August, 1996.
2"-,. qj,- -� -, I , ZZ --
Deputy Cifi Clerk and ex -officio Clerk of
the City Cobncil of the City of Costa Mesa
EXHIBIT A
ACCEPTANCE AND GUARANTEE OF
TRANSFER OF CONTROL OF FRANCHISE
U.S. West, Inc., hereby accept and guarantee each and every term of
Resolution No. 96-79 of the City of Costa Mesa, entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
COSTA MESA, CALIFORNIA, APPROVING THE
TRANSFER OF CONTROL OF A CABLE TELEVISION
FRANCHISE FROM CONTINENTAL CABLEVISION, INC.
TO U.S. WEST, INC.
Copley/Colony Cablevision of Costa Mesa, Inc. hereby agrees to reimburse
the City of Costa Mesa reasonable administrative, accounting, consulting and legal
costs incurred in processing the application for approval of the Transfer in an
amount not to exceed Three Thousand Five Hundred Dollars ($3,500.00) within
thirty days (30) of receipt of an itemized statement of such costs from the City
regardless of whether the Transfer referred to in said Resolution has not closed by
said date. U.S. West, Inc. hereby waives any right to require the City to proceed
first against Copley/Colony Cablevision of Costa Mesa, Inc. or to pursue any other
remedy in City's power to enforce said Resolution.
Dated: U.S. WEST, INC.
N By: m
Name: Barbara M. apha
Dated: v -k13
Title: Vice President - Law
COPLEY/COLONY CABLEVISION
OF COSTA MESA, INC.
rate &
Affairs
I
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of
County of oS A,� q L Lis
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On before me, R
DATE NAME, TITLE OF OFFICER - E.G., 'JANE DOE, NOTARY PUBLIC"
personally appeared
NAME(S) OF SIGNER(S)
impersonally known to me - OR - ❑ proved to me on the basis of satisfactory evidence
to be the persons) whose name(s) is/are
subscribed to the within instrument and ac-
knowledged to me that he/she/they executed
the same in his/her/their authorized
No. 5907
capacity(ies), and that by his/her/their
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WITENF-SS my -hand and official seal.
SIGNATURE OF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
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SIGNER IS REPRESENTING:
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01993 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184