HomeMy WebLinkAbout6662RESOLUTION NO. 6662
A RESOLUTION OF THE CITY COUNCIL OF THE
OF THE CITY OF ARCADIA, CALIFORNIA,
AUTHORIZING THE ASSIGNMENT OF AN OPEN
VIDEO SYSTEM FRANCHISE AGREEMENT BY
CHAMPION BROADBAND CALIFORNIA, LLC TO
CBC BROADBAND HOLDINGS, LLC
WHEREAS, Champion Broadband California, LLC dba Champion
Broadband ("Franchisee") currently holds a franchise issued by the City of Arcadia
(the "Franchise") authorizing the construction, operation and maintenance of an
"open video system" resembling a cable television system in some respects,
through which a variety of video programming is transmitted to subscribers; and
WHEREAS, pursuant to an Asset Purchase Agreement dated September 5,
2008 between the Franchisee and CBC Broadband Holdings, LLC ("New
Franchisee"), the New Franchisee will acquire the assets of the Franchisee in
Arcadia and will be assigned the Franchise by Franchisee subject to approval by
the City of Arcadia; and
WHEREAS, the New Franchisee intends to continue operating the existing
open video system to provide video programming to subscribers; and
WHEREAS, the New Franchisee has filed Federal Communications
Commission ("FCC") Form 394 to provide details regarding the acquisition of the
Franchisee's Arcadia open video system and the assignment of the Franchise and
to establish the qualifications of the New Franchisee; and
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WHEREAS, the Franchisee and the New Franchisee have filed with the City
an application for the assignment of the Franchise, including FCC Form 394, and
has subsequently provided additional information at the City's request; and
WHEREAS, the New Franchisee has applied to the California Public
Utilities Commission for astate-issued video services franchise, which, if issued,
would replace and supersede the Franchise, but notwithstanding this application
the New Franchisee has indicated that it wishes to proceed with the City's review
of the Franchise transfer application; and
WHEREAS, in accordance with the City of Arcadia's cable television
ordinance and the Cable Television Consumer Protection and Competition Act of
1992, the City has the right to review and to approve the financial, technical, and
legal qualifications of the Transferee in connection with the proposed assignment
of the Franchise; and
WHEREAS, the staff of the City has reviewed the documentation that
accompanied FCC Form 394 and, based upon the representations set forth in that
documentation, has concluded that the New Franchisee has the requisite financial,
technical, and legal qualifications to adequately perform, or to ensure the
performance of, all obligations required of the Franchisee under the Franchise, and
that New Franchisee will be bound by all existing terms, conditions, and
obligations of the Franchise.
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
ARCADIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS
FOLLOWS:
SECTION L In accordance with the City's cable television ordinance
and Section 13.1 (b) of the Franchise, the City consents to and approves the
proposed assignment of the Franchise from Franchisee to New Franchisee,
conditioned upon compliance by the Franchisee and/or New Franchisee with the
following requirements, as to which the Franchisee and New Franchisee are jointly
and severally responsible:
A. The Franchisee and the New Franchisee shall execute and file
in the office of the City Clerk an "Assignment and Assumption Agreement"
substantially in the form attached to this Resolution as Exhibit A. The City
Manager is authorized to execute that document and thereby evidence the City's
written consent to the assignment and assumption of all rights and obligations
under the Franchise.
B. An original or conformed copy of the written instrument
evidencing the closing and consummation of the transfer and assignment of the
Franchise shall be filed in the office of the City Clerk within 30 days after that
closing and consummation.
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C. Revised insurance certificates showing the name of the New
Franchisee in accordance with Section 2.4 of the Franchise shall be filed in the
office of the City Manager within 30 days after the closing of the transfer and
assignment of the Franchise.
D. The City shall be reimbursed for costs and expenses, including
legal costs, reasonably incurred in processing and evaluating the proposed transfer
and assignment of the Franchise. The City acknowledges receipt of a deposit of
$15,000 in connection with the application for the transfer of the Franchise, and to
the extent the City's costs have exceeded this amount, the City will set forth the
amount due in an itemized statement addressed to the Franchisee and the New
Franchisee subsequent to the adoption of this Resolution.
SECTION 2. The City's approval of the transfer does not constitute a
waiver of any rights or remedies that the City may have as a result of any non-
compliance on the part of Franchisee or New Franchisee and the City may assert
any non-compliance and pursue all remedies available to the City for any non-
compliance. Franchisee and New Franchisee similarly reserve any and all rights
and defenses with respect to any non-Compliance.
SECTION 3. Upon the close of the Transaction, New Franchisee shall
assume and be bound by the obligations under the Franchise.
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SECTION 4. The City Clerk is directed to transmit a copy of this
Resolution to the following persons:
Mr. Mark Haverkate
Chief Executive Officer
Champion Broadband California, LLC
13710 Struthers Road, Suite 120
Colorado Springs, CO 80921
Mr. Ruben Garcia
Chief Executive Officer
CBC Broadband Holdings, LLC
2702 Media Center Dr.
Los Angeles, CA 90065
SECTION 5. The City Clerk shall certify to the adoption of this
Resolution.
Passed, approved, and adopted this 16`~ day of December, 2008.
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Mayor of the City of Arcadia
ATTEST:
;City Clerk
APPROVED AS TO FORM:
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tJ~,~'f/ 1.~ V ,1
Stephen P. Deitsch
City Attorney
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EXHIBIT "A"
ASSIGNMENT AND ASSUMPTION AGREEMENT
(OPEN VIDEO SYSTEM FRANCHISE AGREEMENT)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made and
entered into this day of , 2008, by and between Champion Broadband
California, LLC, dba Champion Broadband, a Wyoming limited liability company ("Assignor"),
CBC Broadband Holdings, LLC, a Delaware limited liability company ("Assignee"), and the
City of Arcadia, a California municipal corporation ("City").
RECITALS
A. Assignor is the authorized holder of a franchise that authorizes the construction,
operation, and maintenance of an open video system within the City of Arcadia, California (the
"Franchise"). Assignor's open video system franchise will expire by its terms on December 6,
2015.
B. Subject to the prior consent of the City, Assignor desires to assign and transfer to
Assignee, and Assignee desires to assume, all rights and obligations under the Franchise.
THE PARTIES AGREE AS FOLLOWS:
1. Assignor assigns and transfers to Assignee all of Assignor's rights, duties, and
obligations under the Franchise.
2. Assignee covenants and agrees with Assignor and with the City to assume all
rights and to assume and perform all obligations of the Assignor under the Franchise.
3. The City hereby consents to the transfer and assignment by Assignor to Assignee
of all rights, duties, and obligations specified in the Franchise.
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TO EFFECTUATE THIS AGREEMENT, the parties hereto have caused this Assignment
and Assumption Agreement to be executed by their duly authorized representatives as of the
latest date set forth below:
ASSIGNOR ASSIGNEE
CHAMPION BROADBAND CALIFORNIA, CBC BROADBAND HOLDINGS, LLC
LLC dba CHAMPION BROADBAND, a Delaware limited liability company
a Wyoming limited liability company
By:
Title:
Date:
By:
Title:
Date:
APPROVED AS TO FORM
Legal Counsel
CITY OF ARCADIA
By:
City Manager
Date:
ATTEST
City Clerk
By: _
Title:
Date:
By: _
Title:
Date:
APPROVED AS TO FORM
Legal Counsel
APPROVED AS TO FORM
City Attorney
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES) SS:
CITY OF ARCADIA )
I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies
that the foregoing Resolution No. 6662 was passed and adopted by the City Council of
the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular
meeting of said Council held on the 16th day of December, 2008 and that said
Resolution was adopted by the following vote, to wit:
AYES: Council Member Amundson, Chandler, Kovacic, Wuo and Harbicht
NOES: None
ABSENT: None
_-
~•~ `~
~; ~
ity Clerk of the City of Arcadia
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