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Resolution Number 94-12-6-6RESOLUTION NO. 94-12-6-6 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING THAT AGREEMENT ENTITLED "AGREEMENT RELATING TO THE CONSENT OF THE CITY OF SAN JUAN CAPISTRANO TO THE TRANSFER OF CONTROL OF TIMES MIRROR CABLE TELEVISION OF ORANGE COUNTY, INC.", TO COX CABLE COMMUNICATIONS, INC. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. That Agreement entitled "Agreement Relating to the Consent of the City of San Juan Capistrano to the Transfer Control of Times Mirror Cable Television of Orange County, Inc." (the "Transfer Agreement"); and, the definitions, provisions, terms and conditions thereof, are hereby incorporated into this resolution and attached as Exhibit A - SECTION 2. The Transfer, as defined in the Transfer Agreement, is hereby approved subject to the terms and conditions of the Transfer Agreement. SECTION 3. The Transfer Agreement is hereby approved and the Mayor or City Manager are hereby authorized and directed to execute said Transfer Agreement on behalf of the City. SECTION 4. Unless the payment referenced in Paragraph 10 of the Transfer Agreement is received by the City by the time specified therein, the approvals and consents contained herein shall lapse and become null and void. PASSED, APPROVED, AND ADOPTED this I eremhPr 11994. ATTEST: C CITY CLERIC 6th day of -I- M// 403 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO ) I, CHERYL JOHNSON, City Clerk of the City of San Juan Capistrano, California, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Resolution No. 94-12-6-6 adopted by the City Council of the City of San Juan Capistrano, California, at a regular meeting thereof held on the 6th day of December 1994, by the following vote: AYES: Council Members Jone§ Hausdorfer, Nash, Vasquez and Mayor Campbell NOES: None ABSTAIN:None ABSENT: None (SEAL) CHERYL JOMSON, CITY CLERK -2- M-1 AGREEMENT RELATING TO THE CONSENT OF THE CITY OF SAN JUAN CAPISTRANO TO THE TRANSFER OF CONTROL OF TIMES MIRROR CABLE ' TELEVISION OF ORANGE COUNTY, INC. This Agreement (the" Transfer Agreement") is entered into this 6th day of December 1994, between and among the City of San Juan Capistrano ("City"). The Times Mirror Company ("TMC" or Transferor"), Times Mirror Cable Television, Inc. ("TMCT"), Times Mirror Cable Television of Orange County, Inc. ("TMCT/OC"), Cox Cable Communications, Inc. ("Cox"), and Community Television Company (the "Grantee" or "CCC"). WHEREAS, on December 23, 1968, the City Council of the City of San Juan Capistrano approved the granting of a community antenna television (CATV) franchise (the "Franchise Agreement") to the Grantee, which was extended on October 18, 1994, for an extended term of five (5) years; and WHEREAS, the Grantee, TMCT/OC and TMCT are wholly owned subsidiaries of TMC; and WHEREAS, Cox is a wholly owned subsidiary of Cox Communications, Inc. and Cox Discovery, Inc., which are wholly owned subsidiaries of Cox Enterprises; and WHEREAS, TMC has filed a written application to the City, dated July 8, 1994, wherein it ' has requested the consent of the City to the Transfer of control of the Grantee to Cox (the "Transfer"); and WHEREAS, the City Council of the City has reviewed the proposed transaction, as well as all relevant documents, staff reports and recommendations, the operation of the cable system and Grantee's compliance with the Franchise Agreement; and WHEREAS, the Transfer cannot go forth without written consent of the City; and WHEREAS, based upon the evidence presented to the City Council, it has determined that it would be in the public interest to conditionally approve the transfer. NOW, THEREFORE, it is agreed by and between the parties as follows: I. The City Council of the City hereby gives its consent and approval to the Transfer whereby control of the Grantee, and indirectly the Franchise Agreement and the Cable Television System within the City (the "System") incitidang all of the assets thereof, shall be directly acquired and held by Cox. The City Council understands that immediately prior to the closing of the Transfer, TMC will assign its non -cable related assets to New TMC, Inc., a Delaware corporation. Upon closing of the Transfer, TMC, holding only the cable related assets, shall be merged into Cox, and New TMC, Inc. shall be relieved of any and all obligations pursuant to the Franchise Agreement. After the closing of the Transfer, the City Council understands that New TMC, Inc. will change its Exhihi1A HIM name to "The Times Mirror Company," but shall have no obligations pursuant to the Franchise Agreement. 2. The City Council understands that after the closing of the Transfer, Cox or a related entity may do the following (1) change the name of the Grantee to eliminate any reference to "Times Mirror," and/or (2) merge TMCT into Cox; and/or (3) effect other internal corporate restructurings (e.g., changing the name of TMCT/OC), none of which will affect the ultimate control of Grantee. If Cox or a related entity changes the Grantee's name, the City understands that the Grantee shall remain the same corporate entity, albeit with a different name. If Cox merges TMCT into Cox, the City understands that a transfer of intermediate control from TMCT to Cox shall occur at that time, and Cox shall become the immediate controlling parent of Grantee. Provided that any such transaction described above is completed within six (6) months of the closing of the Transfer, the City hereby gives its consent and approval to each of the transactions described in this paragraph. Cox agrees to provide the City with written notice upon the occurrence of any of the events described in this paragraph and copies of all legal documents evidencing such transactions. 3. The granting of the consent to the Transfer or the consents described in Paragraph 2 above, do not render or waive the right of the City to approve any subsequent change not described herein in the ownership of the Franchise Agreement or the ownership or control of the Grantee or the control of Cox, and there shall be no fiurther material change, amendment, or modification of the ownership of the Grantee or change in control of Cox without further written consent of the City Council, as required by the Franchise Agreement. 4. By executing this Transfer Agreement, the Grantee and Cox agree and acknowledge that this Transfer Agreement and consent resolution is not a new franchise agreement, the granting of a franchise, or the renewal of the existing franchise, but rather is exclusively an agreement to transfer control of the Grantee and said Transfer Agreement neither affects not prejudices in any way the City's rights thereunder, and the compliance with the Franchise Agreement as it exists as of the date of this Transfer Agreement, and assuming the economic impact, or lack thereof, of Federal, State and local statutes and administrative regulations existing as of the date of this Transfer Agreement, is neither commercially impracticable as the term is used in Section 625 (e) of the Cable Communications Policy Act of 19984 and/or the Cable Television Consumer Protection and Competition Act of 1992 (collectively the "Cable Act") nor economically infeasible upon closing of the Transfer based upon (i) any and all debt service incurred, or to be incurred, by the Grantee or Cox, or any related entity, to directly or indirectly finance the Transfer, or (ii) any return on equity investment made, or to be made, by the Grantee or Cox, or any related entity, based upon the equity portion of the financing provided for the Transfer. 5. By executing this Transfer Agreement, Cox agrees to cause the Grantee to comply with all the terms and conditions of the Franchise Agreement, an Agreement between the City of San Juan Capistrano, California and Times Minor Cable Television of Orange County, extending the Existing Franchise of Times Mirror Cable Television of Orange County, Ir c. for five (5) years Subject to Certain Terns and Conditions (the "Extension Agreement") and this Transfer Agreement and represents and warrants that Cox has examined the requirements of those ordinances, resolutions, and/or agreements and agrees to cause the Grantee to abide by all the terms and conditions thereof HIM Cox agrees and acknowledges that it has found the Franchise Agreement and Extension ' Agreement to be legally sufficient, valid, and binding and agrees to cause the Grantee to accept the same without condition or reservation and agrees to cause the Grantee to assume liability for all existing disclosed and non -disclosed breaches and defaults. To the extent that the Grantee or Cox, or any related person or entity, challenges the validity or interpretation of said above -listed documents in the future in any administrative proceeding or court of law, such a challenge shall be subject to all defenses which would have been available to the City had the Transferror, or any related person or entity, brought said challenge (s) including, but not limited to, waiver, estoppel, consent, unclean hands and accord and satisfaction, as well as any and all defenses independently available to the City against the Grantee or Cox. 6. 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 the Grantee or Cox to justify rates subject to the jurisdiction of the City higher than could be justified in the absence of the Transfer. The City declares that it has performed a limited scope review of the Transfer and has not considered the economic substance of the Transfer and has in fact been precluded from doing so based upon the inability or refusal of Cox to provide requested information relating to the actual or potential effect of the Transfer upon existing or firture rates subject to the ' jurisdiction of the City. The Grantee and Cox hereby covenant, represent and warrant to the City, as partial consideration for the City's approval of the Transfer and this Transfer Agreement, as follows: (i) Grantee and Cox shall not include any "Goodwill" as that term is defined in Paragraph 99 of the $gport and Order and Further Notice of Proposed Rul=WdU; [MM Docket No. 93-215, CS Docket 94-28] March 20, 1994 (the Cost of Service ROW) which will be generated as a result of the Transfer ("Transfer Goodwill") in any filing with the City relating to the justification of any rate regulated by the City for a period of five (5) years after the closing of the Transfer ("Forbearance Period"). (ii) Subsequent to the Forbearance Period, Grantee and Cox may include Transfer Goodwill in the nate base for rates subject to the jurisdiction of the City only to the extent permitted by the then applicable rules of the Commission and applicable laws. (iii) This agreement by Grantee and Cox not to include Transfer Goodwill in the rate base for rates regulated by the City during the Forbearance Period shalt be a waiver of the rights (if arty) to include "Goodwill" (as that term is defined in Paragraph 99 of the Cost of Service Repwje) in the rate base of regulated rates only as it may apply to the Transfer Goodwill and only for the rates regulated by the City. This waiver shall not be an admission by Grantee, Cox or any related person or entity that Goodwill, as defined in Paragraph 99 of the Cost of Service Report is not includable 407 in the rate base of regulated rates under appropriate circumstances nor a waiver of the inclusion of intangible assets other than Transfer Goodwill in the rate base of regulated rates if permitted by applicable rules of the commission or applicable law. (iv) K and to the extent, either the Grantee or Cox, or any related person or entity, files during the Forbearance Period any document with the City or Commission, pursuant to the Cost of Service Report, which attempts to justify a rate base for rates subject to the jurisdiction of the City higher than it would otherwise be based upon the inclusion of any or all Transfer Goodwill, Grantee shall indemnify the City and pay all of its reasonable costs including the costs of attorneys, accountants, financial consultant, experts, and staff time relating to the review, analysis, processing, and potential contest of said document before the City Council, the Commission, and any reviewing judicial body. Said amounts shall be paid, on an ongoing basis, within fifteen (15) days of receipt of an invoice by the City and failure to pay said amounts in a timely manner shall constitute a material breach of the Franchise Agreement and this Transfer Agreement. The reservation of rights and expression of intent and understanding set forth in this section are not intended by the parties, nor shall they be used or operate, to permit the City to revoke, or further condition or qualify, the Franchise Agreement or its consent to the Transfer or invalidate this Transfer Agreement based on the economic substance of the Transfer. Neither party's entry into this Transfer Agreement nor the City's approval of the Transfer shall, in any way, prejudice the position of either party in any subsequent proceeding for the setting, making, adjustment, or modification of any regulated rate (s), except as expressly provided herein. 7. Any violation of this Transfer Agreement shall be deemed to be a violation of the Franchise Agreement. 8. The Grantee and Cox agree to pay any possessory interest taxes which may be lawfully levied due to the grant of the Franchise Agreement and/or this Transfer Agreement to operate a cable television system in the City and to indemnify the City against any liability for such taxes. This section constitutes valid notice for the purpose of Revenue and Taxation Code Section 107.6. 9. By executing this Transfer Agreement, the Grantee agrees to pay the City a maximum of $5,000.00 to reimburse the City for costs incurred by it associated with this Transfer proceeding including, but not limited to, attorneys' fees incurred directly or in cooperation with other reviewing fiartcl"M authorities. The Grantee shall pay to the City said costs up to a maximum of $5,000.00 prior to the City's execution of this Transfer Agreement. Failure of the Grantee to pay said cost within ten (10) days of the City's adoption of the consent resolution shall result in this Transfer Agreement and the approving resolution being null and void and the consent to the Transfer becoming void and deemed disapproved as of the date of the approving resolution of this Transfer Agreement. 10. The Grantee shall, for a period of three (3) years from the Effective Date of this Transfix Agreement, charge a late fee of no more than Five Dollars ($5.00) and impose said fee no less than forty-five (45) days from the time a subscriber bill is actually mailed to a subscriber. After said three (3) year period, Grantee shall comply with applicable law. 11. This Transfer Agreement 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 Transfer Agreement has been executed and returned by TMC, TMCT, TMCT/OC, and Cox, and the payments specified in Paragraph 10 have been made to the City, within ten (10) days of approval by the City Council. If this Transfer Agreement is not so executed and returned and the payments made to the City 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 Agreement by the City Council. 12. 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: Certificates of authenticity and authority. 2. The receipt of a certified check for the payment referenced by Section 10. Mutual execution and delivery of this Transfer Agreement. 4. Mutual execution and delivery of an escrow agreement (the 'Escrow Agreement"), in a form prior approved by the City Attorney or Special Counsel, relating to a confidential certificate relating to certain approval ' conditions (the "Confidential Certificate"). 5. The deposit into escrow pursuant to the Escrow Agreement no less than ten (10) days prior to the closing of the Transfer of the Confidential Certificate in a form prior approved by the City Attorney or Special Counsel. ATTEST: City Clerk APPROVED: Special Counsel CITY OF SAN JUAN CAPISTRANO Mayor m,• 409 1 I1 IICs• t •m►� By: Its: TIMES MIRROR CABLE TELEVISION, INC. By: Its: TIMES MIRROR CABLE TELEVISION OF ORANGE COUNTY, INC. By: Its: COX CABLE COMMUNICATIONS, INC. By: Its: