HomeMy WebLinkAbout96-034 CC ResolutionRESOLUTION NO. 96-34
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TEMECULA CALIFORNIA, APPROVING THE TRANSFER OF A
CABLE TELEVISION FRANCHISE FROM THE CHRONICLE
PUBLISHING COMPANY TO TCI CABLEVISION OF CALIFORNIA,
INC.
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES RESOLVE, DETERMINE
AND ORDER AS FOLLOWS:
WHEREAS, on October 24, 1978, the Board of Supervisors of the County of
Riverside granted KACOR Realty, Inc. a non-exclusive license to construct, operate and
maintain a cable television system within the unincorporated area of Riverside County known
as Rancho California, as more particularly identified in Exhibit A to such license, including
the area which constitutes the present territorial limits of the City of Temecula;
WHEREAS, on October 2, 1984, the Board of Supervisors granted Rancho California
Cablevision Corp., as the successor-in-interest to KACOR Realty, Inc. a non-exclusive license
to construct, operate and maintain a cable television system within the unincorporated area of
Riverside County known as Rancho, California, as more particularly identified in Exhibit A to
such license, including the area which constitutes the present territorial limits of the City of
Temecula;
WHEREAS, on April 23, 1985, the Board of Supervisors adopted Ordinance 503
establishing the procedure for the issuance of licenses to construct, operate and maintain a
cable television system;
WHEREAS, on October 29, 1985, the Board of Supervisors approved (I) a change in
name of the licensec from Rancho California Cablevision Corp. to VU West Communications
and (ii) an expansion of the service area within which the licensec was authorized to provide
cable television service within the unincorporated area of Riverside County, as such expanded
service area is more particularly identified in Exhibit A to the minutes of the Board of
Supervisors as of such date, which includes the area that constitutes the present territorial
limits of the City of Temecula;
WHEREAS, on March 8, 1988, the Board of Supervisors approved the transfer of the
non-exclusive license to construct, operate and maintain a cable television system in the
unincorporated area of Riverside County known as Rancho California from VU West
Communications to Inland Valley Cablevision;
WHEREAS, on March 12, 1988, Inland Valley Cablevision accepted the transfer of
such license from VU West Communications;
Rcaoa/96-34 I
WHEREAS, Ordinance No. 503 was amended into its current form on or about
November 17, 1988;
WHEREAS, on January 10, 1989, the Board of Supervisors approved the transfer of
such license from Inland Valley Cablevision to The Chronicle Publishing Company
("Chronicle"), the ultimate parent and controlling owner of the Inland Valley Cablevision, and
issued a new, non-exclusive license to Chronicle to construct, operate and maintain a cable
television system within the unincorporated area of Riverside County known as Rancho
California, as more particularly identified in Exhibit A to such license, including the area
which constitutes the present territorial limits of the City of Temecula;
WHEREAS, the City of Temecula incorporated on December 1, 1989;
WHEREAS, on July 10, 1990, the City Council of the City of Temecula adopted
Ordinance No. 90-12, governing cable television franchises granted by the City subsequent to
the date of City incorporation on December 1, 1989;
WHEREAS, pursuant to Ordinance No. 90-12, the City and Jones Intercable of San
Diego, Inc. ("Jones") entered into a Franchise Agreement dated August 13, 1991;
WHEREAS, Exhibit "C" to the Franchise Agreement between City and Jones
established various requirements as to access programming;
WHEREAS, pursuant to Resolution No. 92-81 the City Council of the City of
Temecula, the City approved the surrender of the Jones Franchise to Chronicle. Resolution
No. 92-81, and the attachments thereto (including the access obligations contained in Exhibit
C), constitute the Franchise of the Chronicle to operate a cable television system in Temecula;
WHEREAS, on June 28, 1995, Chronicle entered into an Agreement and Plan of
Merger with Tele-Communications, Inc. ("TCI"), by which Chronicle will merge with and
into TCI (hereinafter referred to as the "Transaction");
WHEREAS, TCI is the parent of TCI Communications, Inc. CTCIC") and also owns
and controls TCI West, Inc. CTCI/West"), which in turn controls TCI of California, Inc.
CTCI/California"). TCI proposes that TCI/California will hold the Franchise;
WHEREAS, the Franchise requires City Council consent to any transfer of the
Franchise;
WHEREAS, FCC Regulations (47 CFR § 76.502(I)(1)) currently require that in order
for a cable operator to obtain City approval of a transfer of the Franchise, it must submit to the
City a FCC Form 394 and any other information as may be required by law;
R¢sos/96-34 2
WHEREAS, Chronicle and TCI have filed a FCC Form 394 with the City requesting
City Council approval of the transfer of the Franchise to TCIC and the subsequent transfer by
TCI to TCI/California (hereinafter, the "Transfer");
WHEREAS, in support of its Form 394 Application, Chronicle and TCI 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, filed with the City on September 8, 1995;
Letters with exhibits from Sherman & Howard to Scott Field, special counsel to
the City, dated October 6, and 10, 1995.
WHEREAS, as part of the Form 394 application, TCI certified that it "will use its
best efforts to comply with the terms of the Franchise and applicable state laws or local
Ordinances and related regulations, and to effect changes, as promptly as practicable, in the
operation of the system, if any changes are necessary to cure any violations thereof or defaults
thereunder presently in effect or ongoing";
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. § 546) states that transfers 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 all franchise noncompliance issues be remedied prior to the Transfer;
WHEREAS, the City has completed an evaluation of Chronicle's compliance with the
Franchise, and determined that, subject to the terms and conditions of this Resolution,
Chronicle and TCI/California and TCI/West, will be in compliance with the Franchise as of
the date of approval of this Resolution,
NOW, THEREFORE, BE IT RESOLVED, that:
Section 1: The Temecula City Council finds that, based upon the representations
contained in the Transfer Documents, and the terms and conditions of this Resolution, TCIC
and TCI/California will have the legal, financial and technical qualifications to own and
manage the Franchise. Subject to the conditions of approval contained in Section 2 of this
Resolution, the City Council approves and consents to the Transfer of the Franchise to TCIC
and the subsequent transfer of the Franchise to TCI/California.
The City Council finds that, subject to compliance with Section 2G of this
Resolution, Chronicle is in compliance with the Franchise.
R¢~o~/96-34 3
Section 2: The approval of the Transfer is subject to the following conditions of
approval:
TCI/California (hereinafter referred to as "Grantee") shall comply with and be
bound by the following documents:
(a)
The License attached as Exhibit "A," to Resolution No. 92-81, which expires
on January 9, 2004.
County Ordinance No. 503, as amended as of November 17, 1988 and attached
as Exhibit "B" to Resolution 92-81.
(c) Resolution No. 92-81, including all Exhibits thereto.
(d)
The Settlement Agreement Between The City of Temecula and The Chronicle
Publishing Company, Regarding Cable Television Rates and Charges.
(e) This Resolution.
Grantee agrees and acknowledges that compliance with the Franchise as of the
closing of the Transaction, including the conditions contained herein, is not Commercially
Impractible as that term is used in Section 625(a) of the Cable Act.
Chronicle shall arrange independence financing of the obligations set forth in
subparagraph E and I so that their costs will not cause Grantee to incur "external costs" under
Title 47, Section 76.922 of the Code of Federal Regulations.
The parties hereby acknowledge and recognize that the City has expressed a
concern regarding the effect its approval of the Transfer may have upon the amount or level of
rates subject to the jurisdiction of the City under existing and future provisions of the Cable
Act, as amended, or any successor statute, and has further expressed its intent and
understanding that it would not approve the Transfer if that transaction or the City's consent
thereto, could, in any way, be utilized by Grantee to justify rates subject to the jurisdiction of
the City higher than could be justified in the absence of the Transfer.
By accepting and agreeing to this Transfer Resolution, Grantee hereby
covenants, represents and warrants to the City, as partial consideration for the City's approval
of the Transfer as follows:
From the date the Council approves this Resolution through March 31,
1999 ( the 'Forbearance Period") Grantee shall not include any
"Goodwill" as that term is defined in Paragraph 99 of the Report and
Order and Further Notice of Proposed Rulemaking [MM Docket No. 93-
Rcaos/96-34 4
215, CS Docket 94-28] March 1994, (the 'Interim Report') or as that
term is defined in the Final Report on Cost-of-Service, as announced by
the FCC on December 17, 1995 (the 'Final Report") which will be
generated as a result of the Transfer (~Transfer Goodwill") in any filing
with the City related to the justification of any rates; however, to the
extent that any Goodwill arose prior to the Transfer, and/or was not
created as a result of the Transfer then the Grantee shall not be
prohibited from including such Goodwill in the calculation or
determination of any such rate.
ao
This agreement by Grantee not to include Transfer Goodwill in
the rate base for regulated rates during the Forbearance Period
shall be a w~ver of its rights to include "Goodwill" (as defined
in the Interim Report and the Final Report) in the rate base of
rates subject to the jurisdiction of the City only as it may apply to
the Transfer Goodwill.
In satisfaction of Chronicle's existing Franchise obligation to install local
origination capability from 28810 Pujol Street, Grantee shall, within 30 days of the dedication
from City to Grantee of a 2 inch diameter conduit or at least of one-half inch of unimpeded,
shared conduit space in the City's traffic signal conduit from the Lindy Lane to 43200 Business
Park Drive, provide the capability for insertion of video programming by the City over
Chronicle's cable television system serving the City of Temecula via fiberoptic cable from the
new City Hall located at 43200 Business Park Drive, Temecula. This obligation shall be
subject to each of the following terms and conditions:
The new C:.ty Hall and the existing Community Recreation Center may
use a shared return path. Programming shall not be originated
simultaneously from the new City Hall and the existing live origination
site at the Community Recreation Center.
The insertion of video programming from such location shall be one-way
only directed to Grantee's headend, receive set or other distribution point
from which video programming is distributed throughout the City.
e
The City shall coordinate control of the location accessing any shared
return path for presentation of video programming over Chronicle' s
cable television system serving the City of Temecula.
e
Grantee shall provide a modulator at the new City Hall. The City shall
be responsible for, and shall bear all other costs and expenses related to,
all other equipment and facilities required at each location for the
origination and distribution of such video programming, including
Rcaoa/96-34 5
without limitation cameras, editing equipment, videotape recorders,
playback facilities and any and all other equipment and facilities utilized
in connection with the origination and distribution of video programming
from such location.
Failure of Grantee to comply with any material provisions 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.
This approval of the Transfer shall be deemed effective upon the issuance of a
Certificate of Closing (the "Certificate of Closing~) by the City Attorney or Special Counsel
(the "Effective Date") so long as the Acceptance and Guarantee of the Transfer Resolution
(Exhibit A) has been executed and returned by Chronicle, Grantee and TCI/West, and the
payments specified in Paragraph Q have been made to the City, within ten (10) days of
approval by the City Council. If this Transfer Acceptance and Guarantee is not so executed
and returned and the payments made to the City Clerk within ten (10) days of approval by the
City Council, it shall become null and void and the Transfer shall be deemed disapproved for
good cause as of the date of approval of this Transfer Resolution by the City Council.
A Certificate of Closing shall be issued by the City Attorney or Special Counsel at such
time that the following documents have been provided to the City or acts completed in a form
acceptable to the City Attorney or Special Counsel:
1. The receipt of a certified check for the payments referenced by Section 2 I.
Execution and delivery of Exhibit A to this Resolution by Chronicle, Grantee
and TCI/West.
TCI/West shall agree to guarantee all obligations of Grantee hereunder, and Chronicle
agrees to perform the obligations imposed upon it pursuant to the terms and conditions of this
Resolution. The Acceptance and Guarantee shall be notarized so as to indicate that the persons
executing the Acceptance and Guarantee have the authority to bind Chronicle, Grantee or
TCI/West. Failure of Chronicle, Grantee or TCI/West to timely file the Acceptance and
Guarantee shall void the approval of the Transfer.
The City shall be reimbursed its reasonable administrative, consulting, accounting and
legal costs (~consulting") incurred in processing the application for approval of the Transfer
and the Settlement Agreement. The reimbursement amount shall not exceed Eight Thousand
Dollars ($8,000.00). Within ten (10) days of the adoption of this Resolution, the City shall be
paid Eight Thousand Dollars ($8,000.00).
Section 3: By delivering a copy of this Resolution to Grantee, the City hereby gives
notice that pursuant to Revenue and Taxation Code § 107.6, the Franchise may create a
Rcaos/96-34 6
possessory interest which, if created, may be subject to property taxation and that Grantee and
TCI may be subject to payment of property taxes levied on such interest. Grantee and TCI do
not waive their right to contest the amount or legality of the possessory interest tax.
Section 4: The City Manager, the City Attorney and Special Counsel, or their
designees, are hereby authorized and empowered to execute any documents necessary, in their
discretion, to implement the approvals contained herein.
PASSED, APPROVED AND ADOPTED by the City Council of the City of
Temecula at a regular meeting held on the 26th day of March, 1996.
arel F. Lindemans, Mayor
ATrEST:
Ci~~ler~eek, CMC --
[SEAL]
Rc~oa/96-34 7
STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE)
CITY OF TEMECULA)
$S
I, June S. Greek, City Clerk of the City of Temecula, California, do hereby certify that
Resolution No. 96-34 was duly and regularly adopted by the City Council of the City of
Temecula at a regular meeting thereof held on the 26th day of March, 1996 by the following
vote:
AYES:
4 COUNCILMEMBERS: Birdsall, Ford, Stone, Lindemans
NOES:
0 COUNCILMEMBERS: None
ABSENT: 1
COUNCILMEMBERS: Roberts
June S. Greek, CMC
City Clerk
R¢sos/96-34 8
EXHIBIT A
ACCEPTANCE AND GUARANTF_E OF
TRANSFER OF Ft~ AI'4CHISE
'rcI -'' - :'- ' -
Cablcv.t~u~t u£ Cal.2femia, -:,c,, hereby accepts e~cb 2u~d c,,ury :etna oiL
No. 96-34 of the City of Temecula, entitled:
A RF...qOLUTION OF THE CITY COUNCIL O[: Tr_:IE CITY OF
TEMi:r~ULA, CALIFORNiA~ APPROVING THE TRANSI4ER
OF A CABLE TELEVISION FRANCHISE FROM THE
CHRONICLE PUBLISHING COMPANY TO TCI
CABLEVISION OF CAIIFORNIA, INC.
C d I£V S 94'q OL C6r. FOl .N ^, INC.
,., /. .,.~y' ~,/~
Name: ~ t~% c, N~r,, _~2 ........
The Chmnicle Publishing Comply, hereby accepts cach and every
appli~ble to it of Re~lufion No. 96-34 of the City of Temeeula, entitled:
Res6~/96-34 9
The C wonic,c Publishing C~m[;any, hereby accepts each and ever~
ai~:plicable to it of Resolution No. 96-34 of the City of Temecula snti~;.~."
r>~ r- OF
A ....SOLUTION TtlE CITY COUNCIL OF THE
CITY OF TEMECULA. C ALiTFOPGqlA, APPROVING
fill fRANSFER OF A CABLE TELEVISION
FRANCHISE FROM THE CHRONICI E PUBIJSIt!NG
COMPANY TO TCI CABLEX."ISiON O[
CA!JFORNI,X. INC:
Dated:Narc}~ '29 . 1996
Wcst'crn (?om~nunications, a division
THE CttRONICLE PUBLISHING COMPAN'¥
B /~/ ,., ..9
Title: Pres i dent
TCI West, Inc. ("T£.-*./West") hereby unconditionally guarantees each
and every term of Resolution No. 96-34 of the City of Temecula, entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF TEMECULA, CALIFORNIA, APPROVING
THE TRANSFER OF A CABLE TELEVISION
FRANCHISE FROM THE CHRONICLE PUBLISHING
COMPANY TO TCI CABLEVISION OF
CALIFORNIA, INC.
TCI/West waives any right to require the City to proceed first against TCI
Cablevision of California, Inc., or pursue any other remedy in City's power.
Dated: /7~~a~, 1996 TCI West, Inc.
By: L,Z'g ?
Name:
Title' /~. "~ ~~~?)
Resos/96-34
160912.1 10
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
County of %A~ ';r--~
On ¢v~/:d;Z r-x'{_ }..~(,
personaiiy appeared _~
NAME, TITLE 'U¢ OFFICER - E.G., %J~ql~ C~E, NOTARY FUOUC'
~:.:,~ .;T~ ?~...~_- ,a .j ,,~_~ ~ ,:. ~. , .' .,,,-;_~'~- ~/x ~.~
personally known :,~ me OR ~ proved to me on the basis of eatlafactory evidence
,.- .~ Loretta M. Selva
0 ,~-~.:~ Comm. ¢¢1048100
~{~"~'~-'k~;~NOTARY PUBLIC CALIFORN~A~
~ c4~ Corem Expires Dec, 26, ~998
to be the person,(s) whose name(,s)O_~a-r~
subscribed to the within instrument and
~nowledged to me that;~ ,~l.'r~ executed
~he same In i'-i-P~r2t~ authorized
capacity(;~e,'M, and that by
slgnatureO~ on the Instrument the person(s),
or the entity upon behalf of which the
person~) acted, executed the lnstrument:
WITNESS my hand and official seal.
~)GNATURE 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
[~CORIVIDUAL
PORATE OFFICER
Tr'rL~$)
[] PARTNER(S) [] LIMITED
~ GENERAL
[] ATTORNEY-IN-FACT
[] TRUSTEE(S)
[] GUARDIAN/CONSERVATOR
SIGNER IS REPRESENTING:
~E OF PEJ;~.~)N($) OR ENT1TY(IE$)
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR T~PE OF DOGUMEI~T
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
~1 B8,3 NATIONAL NOTARY A88(X}I^TION · 8230 Rcmmct Ave-, P.O. Boz 7164 · Ce~ol;]a Pezlq (DA 8130~7184
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of
County of %,~ ~'~'-,_~_Z-
Loretta M. Seiva ~.~
Comm. ¢¢1048100 ~
dI';~'.~ffNOT^RY ?USUC CALt¢OaN~A(¢
City & County of San Francisco O
Corem ExmresDec 23 !998 ~
· ~..,, o.arso,'~aw i<nowr~ to me - OR - red to me on the basis of satisfactory evidence
to be the person(~) whose name~')i~s~a-r-e
subscribed to the'within instrument and ac-
.. knowledged to me that ~e~/$h,.,~y executed
the same In '~hor/thol~- authorized
capacity(Le~), and that by
8ignature.~') on the Instrument the person(.8'),
or the entity upon behalf of which the
person(~) acted, executed the Instrument.
WITNESS my hand and official seal.
SIGNATURE OF NOTARY
OPTIONAL ·
Though the data below I~ not required by law, it may prove valuable to persons relyinc on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
?~.~,IDIVIDUAL
~ CORPORATE OFFICER
TITLES)
[] P~TNER(S) ~ LIMI%D
~ GENE~L
~ A~ORNEY-IN-FACT
~ TRUSTEE(S)
~ GUARDIAN/CONSERVATOR.
~ OTHER.
SIGNER IS REPRESENTING'.
~E OF P~(S) OR
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
(31D'9.3 NA]'/ONAL NOTA.RY ASSOCIATION · 8238 ~ernrnet Ave-, ;:'.O. 8o~ 7184 · Canoga Pa.r~., CA 9"1309-7184
CALIFORNIA ALL.PURPOSE ACKNOWI. EDQMENT ,~o
State of
¢oun~ of %.'k~ ¢i~-,¢~4__c!.tco
on' ~~ ~, ~ b-efor~ me,
personally appeared O
NAME, TITLIE OP OFFICER - E.G., 'JANE DOE, NOT^RY PUBUC"
NAME[(S} OF SIGNER(S)
Loretta M. Selva
NOTARY PUBLIC CALIFORNIA~,~~
City & County ot San Francisco
L-'-] personally known to me - OR - [~oved to me on the basis of satisfactory evidence
to be the person(p) whose name(,s)~/a-r-e
subscribed to the within instrument snd ac-
knowledged to me that ~...~they executed
the same in h~r authorized
capacity(i-e-s), and that by h-i-s~-'~th-e~
slgnature(~ on the Instrument the person(F),
or the entity upon behalf of which the
person(~) acted, executed the Instrument,
WITNESS my hand and official seal.
,~IGNATUR~_ OF NOTARY
OPTIONAL
Though the data below Is not required by law, it may prove valuable to ¢ersons relying on the document and could arevent
fraudutent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
[~RIVIDUAL
POP, ATE OFFICER
~--~ PARTNER(S)
~ ATTORNEY-IN-FACT
[] TRUSTEE(S)
TITLE(S)
[] LIMII~D
~ GENERAL
GUARDIAN/CONSERVATOR
OTHER:
DESCRIPTION OF ATTACHED DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER IS REPRESENTING',
SIGNER(S) OTHER THAN NAMED ABOVE
NATIONAL NOTARY Ag$OCIAT[ON · 8236 Reinmet Ave., P.O. Box 7184 · Ce, noga Pml(, CA 9130g-7184,