HomeMy WebLinkAboutCity Council Resolution 93-043
RESOLUTION NO. 93-04
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SARATOGA APPROVING A CATV FRANCHISE TRANSFER
AGREEMENT WITH BRENMOR CABLE PARTNERS AND
HERNANDEZ COMMUNICATIONS, INC.
WHEREAS, the City has adopted Ordinance No. 71-J21setting fOrth conditions under
which a CATV franchise transfer agreement may be made; and
WHEREAS, the proposed transfer by Brenmor Cable Partners, L.P. consisting of
Intermedia Partners and Intermedia Partners of Carolina and Hernandez Communication, Inc.
will be made pursuant to the terms and conditions of the CATV Franchise Transfer Agreement,
a copy of which is attached hereto 1Lfi; Exhibit "A" and incorporated herein by reference; and
WHEREAS, the City Council find~ and determines that it would be in the be~1 interest~
of the City and the subscribers to the cable television service that the proposed transfer among
the partners of the franchise be af'proved.
NOW THEREFORE, be it resolved by the City Council of the City of Saratoga as
follows:
1. The proposed transfer of the cable television ti"anchise by BrenmOf
Cable Partners and Hernandez Communications, Inc. is hereby
approved.
2. The form and content of the CATV Franchise Transfer Agreement
attached hereto as Exhibit "A" is hereby approved and the Mayor
and City Clerk are hereby authorized and directed to execute said
Agreement on behalf of the City.
Pa.~sed and adopted at a regular meeting of the City Council of the City of Saratoga
held on the 15th day ofSeptelllber, 1993, by the following vote:
A YES:
Councilmembers Anderson, Burger and Mania
Councilmember Kohler
NOES:
ABSENT: Mayor Tucker
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A TrEST:
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EXHIBIT "A"
CAn nAIICIIID DDBI'D AAIIR....~
This A9RBIMBIft', which beccaaes effective upon execution by the
parties, is ..da...aDd entend into this day of , 1993,
by and between" the cm 01' 8I.II.I.!OØA, . aunicipal corporation of tbe
State of California (CI!'!), and ...... CABLB PAR'lIIBItS, L.P.,
(GRAIft'BB) a California liaited partnership consisting of III'fBRMBDIA
PARftBRS, its qeneral partner (IP), and 1o....!u.clØDIA PAR'Tft.I5KS OF
CAltOLIlIA; . California limited partnersh;a.p (IP-Caroli&la), its
limited partner, collectively r.ferred to as the GRAJrrD AND
..,.....ø.z _ COJIIIUIIICAIfIOBS, IlIC., a Colorado Corporation (HCI).
VI!'DR~
Pursuant to -- the provisions of Article 4-25· of the Saratoga
Municipal Code and Ordinance. Ro. 38.79 and 71.36 and Resolution
No. 2251, CIn and GRAIft'BB do hereby agr.. that IP shall be
substituted i~ the place and atead of EI as the 'general partner of ,
GRAMTBB and tbat IP-Carolina sballbe substituted in the place and
stead of IP as the limited partner of GRAIft'BB for the purposes of
operating, constructing, installing and aaaintainin9 a cable
communications system· (B~IJ;¡,.I5K) within CIn, with the following
additional term. and conditioDS:
1. "ssianment. HCI doeå hereby fully transfer and assign. all of
its ri9h~s, title and interest under said franchise to IP, thereby
retainin~ and re.erviDg no rights, title and interests against the
CIn.
2. Waiver and DischarGe hv RCI. HCI does bereby waive and
relinquish any and all clai.., demands, actions or causes of action
it may have against CI!T arising out of or in any-way connected
with said franchise agre.ent or any other matter. RCI represents
that there is presently no suit, action, administrative proceeding,
arbitration, or other proceeding pending with respect to the System
or francbise. It i-a expressly understood that this Agreement
constitutes a waiver and discharge of all claims arising out of the
relationship between CI!T and HCI. It is expressly agreed that all
rights under -Section, 1542 of the California Civil Code are
expressly waived.
3 . AsS~llI\Pt; on bv GRAMT'RR. GIAIft'D does hereby expressly and
unreservedlY agree to assume and fully perform all of the duties
and obligations required of GRAft.. under said _ft:~_ncbise agreement,
as herein modified.
". Wa.:r'rant; es hy GP-'J(1''Rl'l. GUJII'fD does hereby warrant and
promise that it possesses superior experience, character, . and
background including' , but not limited to, financial, legal and
technical abilities and resources required to operate, construct,
install, and maintain the System in the CIn. GUJII'fD further
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warrants that it is duly organized, validly existing, and in good
standing und.r the laws of California, and has the pawer and
authori ty to ent.r into this Agor....nt and to carry out the
transactions coptemplate4 bereby.
5. fJev..T'ah~).;tv. If any term, covenant, condition, or provision
of this Agre_nt or the applicationtbereof to any per son or
circumstan~.s is, to ·any .xtent, iIIvalid or unenforceab.1e, the
reaaaining terms, covenants, condition...., and provisions of this
Agr.em.nt, or the application of .uch ten, covenant, condition, or
provision to persons or circuastanc.. othe::- than those to which it
is b.ld invalid or unenforceabl., sball not b. affected thereby,
and e,.cb t.rm, cov.nant, conditiOD, and provision of this Agreement
shall be valid _and enforced to the fullest extent permitted by law.
6 . ChanCle; n :Rnab.'; ftcr J·.w. Th. parties agr.. tbat if during the
term of this Agr....nt, any change. in any state or f.deral case or
statutory law ~zpand th. ct!'!" s pow.r to r.9\11at. GRAJI'lBB und.r
said franchis. agr..ment, th. partie. sball in good faith negotiate
regarding am.ndments to th. franchi.. agr....nt as authoriz.d by
any such law.
7. Transfer of Own.~sbiÐ or Control. In addition to the change
of ownership provisions s.t forth in S.ction 4-2S.080(ß} of the
City's Municipal Cod.:
A. The GRARTBB shall promptly notify the CITY of any change
in, or transf.r of, ot acquisition by any other party of, control
of the GRAII'I'BB. The word "control", as us.d in this section, is
not limited to major stockhold.rs but includes actual working
control. A rebuttable presumption that a transfer of control has
occurr.d shall arise upon the acquisition or transfer by any person
or group of persons of ten percent of the ownership interest of the
GRAHTBB. EVery chang8, transfer of, or acquisition of control of
the GRAJl'fBB shall lDak. the franchise subject to cancellation unless
and until the CI!Y shall bav. con.ented thereto, which consent will
not . be unreasonably wi thh.ld. For the purpose of deteI'lllining
whether it shall consent to such chang8, in transfer of, or
acquisi tion of control, th. CIft' aay inquire. into the
qualifications of the prospective transferee party, and the GRAIft'D
shall assist th. CITY in any sucb inquiry.
B. In seeking the ct~t. cons.nt to any change in, transfer
of, or acquisition by any other party or control of GRARTBB, the
GRARTBI shall have the r.sponsibility:
(1) To show to' the satisfaction of the ctn whether the
propos.d purchas.r, transf.r.e, or assign.e (the: "proposed
transferee" ). which in the case of a corporation, shall include all
officers, directors, and all p.rsons baving a legal or .quitable
interest of tw.nty-five perc.nt or more of its voting stock. And,
in the case of a partnership shall include all general partners and
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any liaited partners holding twenty-five percent or aore of the
Partnership intere.~:
. -
(a) baa ever been convicted or held liable for acts
invol ving moral turpitude, -
(b) has ever bad a judgment in an ar tiOD for fraud,
deceit or aisrepresentation entered against it, her, him or them by
any court of cOIIpetent jurisd.iction; .-.-
(c) bas pending any l89aï claim, lawsuit or
ad.ministrative proèeed.ÍDg arising out of or involving a cable
system.
(2) 70 establish, to the satisfaction of the CI!Y, the
financial solvency of tbe propos.d tranaferee by submitting such
reasonable finaD~ial data for th. proposed transfere. as the CITY
may request.
(3) fo establish to the satisfaction of the CI!Y that
the financial and technical capability of the proposed transferee
is sucb as sball enable it to .aintain and operate the cable system
for the re..inin9 term of ,the franchise under tbe existing
franchise terms.
c. Th."CI!T agree. that any financial institution baving a
pledge of the franchi.e ~r its a.sets for the advancement of money
for the construction and/or operation of the franchise sball have
the right ~o notify the CI!Y that it or its designee, satisfactory
to the CI~, will take control and operate the cable television
system, in the event of a GRAIft'BB default in i1=-- financial
obligations. Purtber, said financial institution shall also submit
a plan for such operation tbat will insure continued service and
compliànce with all franchi.e requirements during the term the
financial institution exerci.e. control over the system. The
financïal institution shall not exercise control over th~ system
for a period exceeding one year unless extended by the CITY at its
discretion and during said period of time it shall have the right
to peti tiOD the CIn to transfer franchi.e to another GBAlft'BB. If
the CIft finds that such transfer after considering the legal,
financial, character, tecbnical and other public interest qualities
of the applicant are satisfactory, the CIty will consent to an
assignment of the franchise, which consent will not be unreasonably
withheld.
D. The consent or approval of the CIft· tõ-tbis or to any
other transfer of the GRAftD sball not consti tute a .'Wai ver or
release of the rigbts of the CIn in and to the streets, and any
transfer shall, by ita teras, be expressly subordinate to the terms
and conditions of this franchise.
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B. In no event shall a transfer of ownership or control be
approved without the succe..or in iDtere.t becOllÍDg a signatory to
the ~ranchise .agre"JDt_and any ..endment. thereon imposed as a
condition of such transfer. Purtberaore, the City Council may
require increase. in a faithful perfo~nce bond· in the form
prescribed by the City Attorney.
F. In no event sball· any coat :tÇÞ _the GRAIft'BB tlssociated with
a transfer of ownersbip or control be passed on to the subscribers
as an increase in rate..
8. ., COlQllun; tv Acce.. t.~ evi II; On. GRAIft'BB recognizes tha t
Saratoga'. Commun1ty Acce.s Cbannel baa bistorically existed on
Cable Channel- 6; an4, in ligbt of this fact, GRAftD bereby agrees
that Saratoga'. Coaaunity Acc.ss Channel will re.ain on Cable
Channel 6 throughout the duration of GRAIft'BB'. franchise.
9. 'ranch;.~ F.e.
. A. GRMDI contractually.gr... to pay to the CITY during the
life of the cabl. televi.ion franchi.e, . aua equal to £i ve percent
of the lIDDual total gro.. r....enu.. for Saratoga. t'otal gross
revenues ..1ID. all UIOUDta which are received, directly or
indirectly, by the GRAIft'BB frœ or in connection with th-e operation
of it. Càble Syst_ in the City. 'otal gross revenues shall
include, but not b. li.ited to, revenues from the distribution of
any basic, premium o~ pay-par-view service over the Cable System to
any subscriber; installatioD, reconnectioD and similar fees; fees
paid for channels designated for comaercial use; converter rentals
or sales; studio· and other facility or equipment rentals, other
than those associated with the operation of the Sys~em;· advertising
revenues (based on. the percentage of Subscribers in the Franchise
Territory); revenue c:ler.ived froa the sale of products.· advertised or
promoted on the Syatø, to the extent such revenue represents
payment, in whole or in part, for the use of a .channel on the
SYl!lte. .
Out of such payinent, an' UIOUDt equal to three percent of said gross
revenues shall be retained by the City, and an aIIOUDt 'equal to two
percent of said gr088 revenue. sball be utilized by the City
excl\·~sively for funding and support of the conummity access channel
jointly operated by the City and the We8t Valley/His8ion Community
College District, or by any non-profit corporation, association or
other organization established by the City and said Community
Colleve District of such purposes. Such payme~-shall be made by
the GRAIft'BB annually or as may otherwise Di--provided in. the
GRAIft'BB's franchi.e, and such payment by the GRAIft'BB to the City
sball be in lieu of any occupation tax, license tax or similar
levy.
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B. The GJtA.ftBB shall file with CIn within sixty days after
the ezpiration of any fiscal year during which such franchise is in
force, a financial state.ent prepared by a certified public
accountant showing in detail the total gross revenues, as defined
herein, of ŒRAB!BI during the preceding fiscal year and shall pay
the franchise fee to CI!Y within fifteen da]_ from date of filing
such statement.
C. CIn shall bave the right to inspect GlUUft'BB' s records
showing the gross revenues from which his franchise payments are
computed and· the right of audit and recomputation of any and all
amounts paid under this Agreement. No acceptance of any payment
shall be construed as a release or as an accord and satisfaction of
any claim CIn may have for further or additional sums· payable
under this Agreement or for the perfoI1ftaDce of any other obl1.gation
hereunder.
D. In the event of any holding over after expiration or other
termination of any franchise granted or transferred without the
consent of crn: , the GlUUft'BB shall pay to CIn reasonable
co_pensation and damag.s, of not less than one hundred percent of
GRAJrrO's total gross profits during such period.
10. Financial Statements. In addition to the financial statement
referenced in Section 9. Franchise ree, paragraph B, the GRARTEI
shall file with CIn annually audited financial statements for
lntermedia Partners, 1Dcluding such statements for Brenmor Cable
Partners, L.P., South Bay Cablevision and for South Bay
Cablevisions'operatioDs in the CIn or SARA~ françhise area.
CITY or S~!OGA, a California Municipal Corporation
By:
Mayor
BRDMOR CABLB PA'RDBltS
By: IR!BRMBDIA PAR!IœIS, the General Partner
By:
DavidG. Rozzelle, General Partner
HBlUIAlI'DBZ COtOI1J1IICA!'IOKS, IBC., a Colorado Corpoi-et:¡on
By:
Ray J. HernAft".z, President
jm:f:\misc\cabletv.trf
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