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HomeMy WebLinkAbout1998-030 Cablevision FranchiseORDINANCE NO. 98-30 AN ORDINANCE relating to the cable communications franchise granted to TCI Cablevision of Yakima, Inc.; and approving transfer of the cable communications franchise, as granted under City of Yakima Cable Television Franchise Ordinance No. 93-115, from TCI Cablevision of Yakima, Inc. to a limited partnership of affiliates of TCI Cablevision of Yakima, Inc. and Falcon Holding Group, L.P., to be known as Falcon Communications, L.P. WHEREAS, TCI Cablevision of Yakima, Inc. ("TCI") is duly authorized to operate and maintain a cable communications system (the "System") in the City of Yakima, Washington pursuant to the terms and conditions of a franchise (the "Franchise") as granted by the City of Yakima (the "City") under City of Yakima Cable Television Franchise Ordinance No. 93-115; and WHEREAS, Falcon Holding Group, L.P. ("FHGLP") and affiliates of TCI have formed a limited partnership to be known as Falcon Communications, L.P. (the "Falcon/TCI Partnership"); and WHEREAS, FHGLP and TCI have entered into a Contribution and Purchase Agreement dated as of December 30, 1997 (the "Contribution Agreement"), pursuant to which TCI has agreed to transfer the assets of the System, including its right, title and interest in the Franchise, to the Falcon/ TCI Partnership subject to, among other conditions, any required approval of the City with respect thereto; and WHEREAS, upon the consummation of the transactions contemplated under the Contribution Agreement, it is anticipated that FHGLP will have approximately 53% ownership interest in and will manage the day-to-day operations of the Falcon/TCI Partnership and the TCI affiliates will have approximately 47% ownership interest; and WHEREAS, in connection with the contemplated transactions under the Contribution Agreement, TCI will undergo an internal restructuring ("TCI Restructuring") immediately prior to the contribution of the System to the Falcon/ TCI Partnership, subject to any required approval of the City with respect thereto; and WHEREAS, Federal Communications Commission Form 394 has been filed with the City; and WHEREAS, the City has conducted a review of the transfer of the System and the Franchise from TCI to the Falcon/TCI Partnership; and WHEREAS, TCI and FHGLP have requested consent by the City to the transfer (the "Transfer") of the System and the Franchise to the Falcon/ TCI Partnership and to the intermediate TCI Restructuring, to the extent that such consent is required under the Franchise, in accordance with the terms, conditions and requirements of the Franchise, now, therefore BE IT ORDAINED BY THE CITY OF YAKIMA: SECTION 1. The City hereby consents to and approves the TCI Restructuring and the transfer of the System and the Franchise to the Falcon/ TCI Partnership, to the extent such consents are required by the terms and conditions of the Franchise and applicable law, and the assumption by the Falcon/ TCI Partnership of all obligations and liabilities of TCI under the Franchise, known and unknown, subject to applicable law, conditioned as follows: -2- A. Capital Grant. No later than 60 days from the effective date of this ordinance, TCI shall provide to the City a Capital Grant in the amount of $30,000. To help meet the City's Public and Government Access needs, the Capital Grant shall be used for Access equipment and/or facilities. The Capital Grant shall not be passed through to customers in any way by TCI, FHGLP or the Falcon/ TCI Partnership. B. System Upgrade. (i). In accordance with Section 4.3 of the Franchise, the Falcon/ TCI Partnership shall upgrade the System to a minimum practical capacity of 75 downstream standard video channels (as defined in Section 1.8 of the Franchise) activated for delivery of signals to subscribers throughout the Franchise Area. Said upgraded System shall provide for standby powering, bi-directional capability, an emergency alert system and have the capacity to provide pay-per-view and other services requiring Addressability, as required by the Franchise. (ii). The upgrade shall be completed no later than thirty (30) months (the "Upgrade Period") from the effective date of this ordinance. a. A detailed construction schedule for the upgrade, as indicated below, which shall be subject to City approval, shall be submitted to the City no later than 45 days prior to commencement of construction, as defined in the last sentence of Section 4.3.2 of the Franchise. b. Walkout and System design shall be completed within the first ten (10) months of the Upgrade Period. -3- c. Upgrade of fifty percent (50%) of the System shall be completed no later than the end of the twentieth (20th) month of the Upgrade Period. d. One (1) additional Access channel (for a total of four (4) Access channels) shall be provided to the City on the portion of the System upgraded at the end of the twentieth (20th) month of the Upgrade Period and on the entire System no later than the completion of the upgrade. e. The Falcon/ TCI Partnership shall comply with all provisions of the Franchise related to the upgrade as contained in Section 4 of the Franchise. f. The Falcon/ TCI Partnership System manager, or his or her designee, shall meet with a designated representative(s) of the City on a monthly basis during the Upgrade Period and provide accurate and complete updates on the progress of the upgrade. C. Failure to Comply. In the event the Falcon/ TCI Partnership fails to complete any of the terms and conditions of the upgrade described above in Section 1 B, and/ or according to the schedule for the upgrade as detailed in Section 1 B (ii), (a), (b), (c), (d), (e), and (f) herein, then, unless such failure is caused by a force majeure, the Falcon/ TCI Partnership shall be in breach of the Franchise. In the event of such breach, the City shall have the right to impose all penalties provided for under Section 4.3.3 and Section 7.5 of the Franchise immediately upon expiration of the Upgrade Period; no grace period for imposition of any such penalties shall be provided. The penalties provided for in Section 4.3.3 and Section 7.5 of the Franchise shall be retroactive to the -4- date of the breach of the upgrade schedule detailed above. The City shall have the right to impose all other penalties as provided for in the Franchise for any other violation of the Franchise by the Falcon/ TCI Partnership, as determined by the City, throughout the term of the Franchise. SECTION 2. Immediately following the consummation of the transactions described above, for financing and operational reasons, the Falcon/ TCI Partnership may transfer the Franchise, directly or through one or more intermediate transfers, to its subsidiary, Falcon Video Communications, L.P. SECTION 3. The Falcon/ TCI Partnership may transfer the Franchise, System or assets or control relating thereto, to any entity controlling, controlled by or under common control with the Falcon/ TCI Partnership given proper notification to and consent of the City as provided for in Section 2.7 and Section 2.8 of the Franchise. SECTION 4. The City hereby consents to and approves the assignment, mortgage, pledge or other encumbrance, if any, of the Franchise, System or assets relating thereto, or of the interests in the permitted holder thereof, as collateral for a loan. SECTION 5. The cable communications franchise as granted by Ordinance No. 93-115 shall be amended upon the effective date of this ordinance, as set forth in this ordinance. Any terms of Ordinance No. 93-115 not expressly amended by this ordinance shall remain in full force and effect. SECTION 6. Upon the date this ordinance becomes effective, this ordinance shall have the force of a continuing agreement with TCI, FHGLP and the Falcon/ TCI -5- Partnership and shall not be amended, changed or otherwise altered without the consent of the City, TCI, FHGLP and the Falcon/TCI Partnership, SECTION 7. This ordinance shall be in full force and effect thirty (30) days after its passage, approval, and publication as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 4th day of August ,1998. ATTEST: City Clerk Publication Date: 8-7-98 Effective Date: 9-6-98 -6- John Puccinelli, Mayor A(1G0 T terms and conditions of this Ordinance are accepted this 1 6 ' day of , 1998, by TCI CABLEVISION OF YAKIMA, INC., a Washington corporation. SHARON K. BECKER Its: President STATE OF WASHINGTON ) COUNTY OF K l 4/ ) ss. On this d�ay of 1k14 O Y , 1998, before me persona appeared 544A g4 K - E GSE It- , to me known to be the ? Q -ES 1 Ar N t of TCI CABLEVISION OF YAKIMA, INC., that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument and that the seal affixed is the corporate seal of said corporation. In witness whereof I have hereunto set my hand and affixed my official seal the day and year first above written. MER0000000000 cf. it, •rF�y ESA NOTARj'p gY w .4 `:►\ PUiB Aft /o 1 •.•r t a, ,q9 .rv� II . a , -7- k Printed Na NOTARY 'UB IC in and for the State of Washington, residing at My commission expires: Ti s94-'1,61') 195 The terms and conditions of this Ordinance and Ordinance No. 93-115, as modified by this Ordinance, are accepted this .e.1.1/45- day of.. , 1998, by FALCON HOLDING GROUP, L.P., a limited partnership. � w.bG r - STATE OF COUNTY OF On this ) ss. ) Its: d1/442-44 J66 A rrA-CHEJ /J aSE Ackn0" / e0Sr7ieo ��Lrf%Or2/irLl 4/// /+'V�� day of , 1998, before me personally appeared , to me known to be the of FALCON HOLDING GROUP, said instrument to be and purposes therein instrument. L.P., that executed the within and foregoing instrument, and acknowledged the free and voluntary act and deed of said limited partnership, for the uses mentioned, and on oath stated that he/she was authorized to execute said In witness whereof I have hereunto set my hand the day and year first above written. Printed Name: NOTARY PUBLIC in and for the State of , residing at My commission expires: -8- CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT .,�4.�.;�J.',�-�'�;,�$.¢,q mac. Aoac,: ��t!�.5,��S�S • .moi • ,c..'1t�'.�'1t oa���<;���aA�v!'�e.�a��!s,a'.!s�t '�C� CSS.�.•-�..�.�S!z,�!:.y!:,c�ac;�„�� ��7, State of California County of s yeo.s On I,o/m4"2 I/ /01, befor me, Date personally appeared 6.1//9- z DAVID SELIG Commission # 1163345 Notary Public - California .Los Angeles County - My Comm. Expires Nov27, 2001 Place Notary Seal Above € /01i?7Q me and Title of Officdfr (e.g., "Jane Doe, Notary Public") 44) Name(s) of Signer(s) personally known to me ❑ proved to me on the basis of satisfactory evidence to be the person(] whose namets1' subscribed to the within instrument and acknowledged to me that he,<slaeFtl'rey executed the same in his/fir authorized capacity(.i$ . and that by his/her/thoir signature(` on the instrument the personX, or the entity upon behalf of which the person' acted, executed the instrument. WITNES and Sig re of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: 6/e/J//1ii' 71/Ce /V , 9f -Je2 Document Date: Number of Pages: Signer(s) Other Than Named Above: °� ti � cc/wt//� — -47/di' - Z1/7 Capacity(ies) Claimed/by Signer / Signer's Name: / ❑ Individual ,g1' Corporate Officer — Title(s): f e6 ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: i-4) 7/14 K.26 RIGHT THUMBPRINT OF SIGNER Top of thumb here G�G� �+ ✓::�%�ti�:�9�y.v�4'�y, y�`✓.� 4vG�✓�.��Z"�4 < ✓'+✓".4y4\y,4 W3KINK:K•gZv':4WLe< :v:K24-6 �✓b;2?4,..Wu�✓'��"r4 © 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 The terms and conditions of this Ordinance and Ordinance No. 93-115, as modified by this Ordinance, are accepted this day of 'nk ' 1998, by FALCON COMMUNICATIONS, L.P., a limited partnership. STATE OF ) ) ss. COUNTY OF ) By: Its: \h. jg ,1TTA-CH63 J 4// /_D /,OSC 4c,e4oiv /NGrOvr-. On this day of , 1998, before me personally appeared , to me known to be the of FALCON COMMUNICATIONS, L.P., that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said limited partnership, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument. In witness whereof I have hereunto set my hand the day and year first above written. Printed Name: NOTARY PUBLIC in and for the State of , residing at My commission expires: -9- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT $�.:���,�.�'�a!�S�S.��.cys'.S!�5;:�.✓-a>!�S�S��� .�'�S:�.S,�.s�.'S �C�ca�S-s��S,�.s�.'S��,�5,..,s��C,rc�.'S�S�v-�v��,�-'�.'S� S!s�cc����y�S� �Z State of California/1;_.S County of On 1 Date personally appeared ( I ore me, iq Ge":, Name and Title of PRficdr (e.g., "Jane Doe, Notary PGblic") z-�� z • DAVID SELIG Commission # 1163345 Notary Public - California > Los Angeles County My Comm. Expires Nov 27,2001 Place Notary Seal Above Name(s) of Signer(s) .personally known to me ❑ proved to me on the basis of satisfactory evidence to be the person whose name( is/ar-e- subscribed to the within instrument and acknowledged to me that he/sb44kiey executed the same in his/Iags/the authorized capacity(ies), and that by his/her the signaturec,s0 on the instrument the person{.), or the entity upon behalf of which the person acted, executed the instrument. WITNESS/rvfv ha .. • offfCial -al. d gnature of Notary P .lic OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: g7/e4/61/ii-Ace - 30 Document Date: /4(0,--- L/ / /51( Number of Pages: Signer(s) Other Than Named Above: 7d4 / 'C CtNli - MAlat 6 0, yAeto. /4 Capacity(ies) Claimed by S' ner / Signer's Name: Co"E,ed A ❑ Individual Corporate Officer — Title(s): OCG ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: �% Signer Is Representing: /4,04-.-0/1/4,97yrdN/«4-7x)/vs , 2 QP/1/7 RIGHT THUI OF SIG PRINT R Top of thumb here L2 d 3 e'7Z�•""' '. •ti✓-1Xs,Z`✓ZW4'4•74W:�✓ ✓4W4'..'ZW,AteerZ•34:V.Z(.4Wr�v3,•✓/, AAV:J'Z ZWZ ZSg4 Y,4SVAS✓ZS.17,A,10:17,Z,✓Z =4A,• -/,Z ZW✓S.t. ©1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toil -Free 1-800-876-6827