52446
ORDINANCE NO. 5244
AN ORDINANCE OF THE CITY OF ANAHEIM APPROVING
THE TRANSFER OF THE CABLE TELEVISION FRANCHISE
GRANTED TO EMPIRE CABLE TELEVISION, INC.
("EMPIRE") PURSUANT TO ORDINANCE NO. 5057 (THE
"FRANCHISE") TO JONES SPACELINK ACQUISITION
CORPORATION
WHEREAS, Section 8 of Ordinance No. 5057 provides that
the cable television franchise granted to Empire (the
"Franchise") may not be transferred or assigned without the
prior consent of the City Council of the City of Anaheim;
and
WHEREAS, Empire has requested, in writing, that the City
Council of the City of Anaheim approve the transfer of the
Franchise to (i) Jones Spacelink Acquisition Corporation
("JSAC") or to Jones Growth Partners II, L.P., a Colorado
limited partnership (the "Partnership") and (ii) if the
Franchise is initially transferred to JSAC, any subsequent
transfer by JSAC to the Partnership; and
WHEREAS, JSAC or the Partnership, when holding the
Franchise, may from time to time desire to grant a security
interest in its assets, including the Franchise, to an
institutional lender or lenders as security for its
obligations to such lender or lenders; and
WHEREAS, based upon the evidence presented to the City
Council of the City of Anaheim, the City Council has
determined that it would be in the public interest to
conditionally approve the requested transfer and the grant of
a security interest.
NOW, THEREFORE, the City Council of the City of Anaheim
HEREBY ORDAINS AS FOLLOWS:
1. The City Council hereby approves the transfer of
the franchise from Empire to JSAC or the Partnership, and
approves any subsequent transfer of the franchise by JSAC to
the Partnership, subject to the conditions set forth in
Paragraph 5.
-- 2. JSAC or the Partnership, as transferee of the
franchise, shall assume all the liabilities and obligations
imposed on Empire pursuant to the Franchise, effective upon
the transfer of the Franchise. Empire shall be released from
all obligations and liabilities imposed on it under the
Franchise upon the fulfillment of all conditions contained in
Section 5 hereof and the transfer by Empire of the Franchise
to JSAC or the Partnership.
3. The granting of this approval does not waive the
right of the City to approve any subsequent change(s) in the
ownership of the franchise, or the ownership interest or
control of JSAC or the Partnership, and there shall be no
material change, amendment, or modification in the identity
or equity composition of JSAC or in the identity or equity
composition of the general partner of the Partnership without
further consent and approval of the City Council expressed by
ordinance.
4. This approval is granted pursuant to the warranties
and representations, and made an express condition thereupon,
that the ownership structure of JSAC and the Partnership and
the ownership of the Franchise will be and remain as it
currently exists upon adoption of this Ordinance.
5. This approval is expressly conditioned upon the
occurrence of the following acts within thirty (30) days
after the Effective Date of this Ordinance;
A. The provision by JSAC, or the Partnership when
the Franchise is transferred to the Partnership, of a written
agreement, in a form reasonably acceptable to the City
Attorney, specifying that it shall be unconditionally liable
for the obligations imposed on Empire pursuant to the
Franchise, effective upon the transfer of the Franchise to
JSAC or the Partnership.
B. The provision of a written agreement, in a
form reasonably acceptable to the City Attorney, by JSAC or
the Partnership when the Franchise is transferred to the
Partnership, unconditionally agreeing to the terms of this
Ordinance, effective upon the transfer of the Franchise to
JSAC or the Partnership.
C. The provision of a written guarantee, in a
form reasonably acceptable to the City Attorney, of Jones
Spacelink, Ltd. unconditionally guaranteeing the obligations
of JSAC under the Franchise and this Ordinance.
D. The provision by JSAC of a performance bond,
as required by Section 18 of the Franchise, to the City, in a
form to be approved by the City Attorney, in the amount of
One Hundred Thousand Dollars ($100,000.00) to guarantee the
obligations of JSAC or the Partnership under the Franchise
and this Ordinance.
E. The payment to the City of the dollar sum of
$75,000.00 (the "Capital Equipment Grant") which shall be
held by the City in an earmarked and segregated account, and
not commingled with other City funds regardless of source or
dedication, which shall be exclusively utilized by the City
for the following cable related purposes:
-2-
(1) The purchase of video equipment, including but not
limited to, cameras, lights, recorders, microphones, control
panels, remote control motor assemblies, and the like, to be
selected in the sole discretion of the City, to be installed
in the City Council Chambers, to such other location within a
City -owned facility to be selected in the sole discretion of
the City, for the purpose to recording and/or broadcasting
events of public, educational, and/or governmental interest
upon the cable television systems franchised to operate
within the City.
(2) The installation, wiring, connection, and necessary
training in relation to the equipment described above.
(3) Any and all necessary editing and processing
equipment.
(4) Any structural improvements and/or modifications
relating to the facilities in which the equipment described
above is located.
All of the equipment described above shall be purchased
and placed in operation within three (3) years of the
Effective Date of this Ordinance.
The City hereby expresses its current intent to utilize
the Capital Equipment Grant described above, which is hereby
agreed by the parties to constitute a capital expenditure
within the meaning of the Cable Communications Policy Act of
1984 (the "Cable Act") and thus not offsettable against
franchise fees, or any other payment due the City under this
Ordinance or the Franchise, for the purpose of creating a
remote control production facility within the existing City
Council Chambers to allow the live and tape -delayed
broadcasting of City Council meetings and other public
meetings and events which take place in the City Council
Chambers. It is further the City's current intent to
negotiate a joint use agreement with all franchised cable
operators so as to allow and facilitate integrated and
coordinated production of events of public interest from the
City Council Chambers. • However, and without limitation of
the foregoing, the City may, for reasons both within and
without its control, be unable to accomplish the above and,
upon abandonment of the plan to create a joint use studio
within the City Council Chambers, will utilize the Capital
Equipment Grant described above to purchase equipment to be
installed in an alternative site, all consistent with the
goal of providing public, educational, and governmental
programming to the citizens of Anaheim.
Upon receipt of the Capital Equipment Grant described
above, Empire, JSAC, and the Partnership shall be relieved of
any and all obligations contained in Sections 10(a)(7)(b) and
10(a)(7)(d) of the Franchise, and those provisions of the
-3-
L
Franchise shall thereupon automatically, without further
action by the City, be deleted and repealed.
F. The provision to the City, in a form acceptable to
the City Attorney, of one of the following:
(a) A certified copy of an approval
ordinance, resolution, agreement or otherwise, as
the case may be, of the City of Yorba Linda
approving the transfer of the Franchise grant by
the City of Yorba Linda to JSAC or some related
entity; or
(b) A written plan, which must be approved by
the City Attorney, providing for the ability of
JSAC to secure programming signals and feed from
alternative sources so that its Anaheim system can
be operated in a manner consistent with the
requirements of the Franchise without the Head -End
currently provided within the City of Anaheim.
G. The payment of good funds to the City in an
amount to be billed by the City within five (5) days of the
adoption of this Ordinance to reimburse the City for its
actual and unreimbursed costs of this transfer proceeding.
6. By accepting this consent and approval, JSAC agrees
that the City of Anaheim, through its City Attorney, shall be
furnished all new or amended documents relating to this
transaction within thirty (30) days of execution of those
documents by all parties.
7. By accepting this consent and approval, JSAC and
the Partnership agree and acknowledge that this Ordinance and
acceptance is not a new franchise agreement, the granting of
a new franchise, or the renewal of the existing franchise,
but rather is exclusively a consent to transfer an existing
franchise and said agreement does not affect the
grandfathering of any provisions hereof under the Cable
Communications Policy Act of 1984 (the "Cable Act"), cannot
be used, directly or indirectly, as a basis for modification
under Section 625 of the Cable Act or any other provision of
law, or provides with any rights not otherwise expressly
provided herein or in the Franchise.
8. The foregoing consent to the transfer and
assignment of the Franchise from Empire to JSAC or the
Partnership shall be effective upon the closing of the sale
of the cable system serving the City of Yorba Linda from
Empire to JSAC or the Partnership. Notice of such closing
date shall be given to the City. If the Franchise is
initially transferred to JSAC, any subsequent transfer of the
Franchise by JSAC to the Partnership shall be effective upon
-4-
written notice being given to the City by the entity then
holding the Franchise.
9. The City does hereby consent to the grant from time
to time by JSAC or the Partnership of a security interest in
all of its rights, powers and privileges under the Franchise
and all of its other assets to such lending institution or
institutions as may be designated by JSAC or the Partnership,
which lending institution or institutions shall have all of
the rights and remedies of a secured party under the
applicable Uniform Commercial Code; provided, however,
nothing contained herein shall allow or authorize a transfer
of the Franchise other than from JSAC to the Partnership, or
a change in control, without the further consent of the City
Council.
10. Upon compliance with all terms of this Ordinance,
the City hereby affirms that the Franchise is currently valid
and in full force and effect, and to the knowledge of the
City, no default exists thereunder. Subject to compliance
with the terms of this Ordinance, all action necessary to
approve the transfer of the Franchise to JSAC or the
Partnership, and any subsequent transfer of the Franchise by
JSAC to the Partnership has been duly and validly taken.
11. Any material violation of this Ordinance by JSAC or
the Partnership shall be deemed a material violation of the
Franchise.
12. JSAC or the Partnership, acknowledge that this
franchise may create a possessory interest subject to
property taxation which may subject JSAC or the Partnership
to the payment of property taxes levied on such interest.
This interest shall constitute notice of the possible
creation of a possessory interest pursuant to Section 107.6
of the Revenue and Taxation Code of the State of California.
THE FOREGOING ORDINANCE is approved and adopted by the
City Council of the City of Anaheim this 6tk�- day of
August , 1991.
14AYOR OF THE OF rEIM --
ATTEST:
CITY CLERK, CITY OF ANAHEIM
7/124/012377-0034/004
-5-
I
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that
the foregoing Ordinance No. 5244 was introduced at a regular meeting of the
City Council of the City of Anaheim, held on the 23rd day of July, 1991, and
that the same was duly passed and adopted at a regular meeting of said City
Council held on the 6th day of August, 1991, by the following vote of the
members thereof:
AYES: COUNCIL MEMBERS: Simpson, Daly, Pickler, Ehrle and Hunter.
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said
Ordinance No. 5244 on the 7th day of August, 1991.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal
of the City of Anaheim this 7th day of August, 1991.
CITY CLERK OF THE CITY OF ANAHEIM
(SEAL)
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that
the foregoing is the original of Ordinance No. 5244 and was published once in
the Anaheim Bulletin on the 16th day of August, 1991.
CITY CLERK OF THE CITY OF ANAHEIM