HomeMy WebLinkAbout2008/05/20 Item 4
CITY COUNCIL
AGENDA STATEMENT
MAY 20, 2008, ltem--4---
SUBMITTED BY:
RESOLUTION CONSENTING TO THE ASSIGNMENT OF
CHULA VISTA CABLE, LTD" FRANCHISE AGREEMENT
TO NEXHORIZON BROADBAND OF SOUTHERN
CALIFORNIA, INC.
DIRECTOR OF CONSERVATION & ENVIRONMENTA~
SERVICES ~
ASSISTANT CITY MANAGER
CITY MANAGER "> ,-
ITEM TITLE:
REVIEWED BY:
4/STHS VOTE: YES D NO ~
SUMMARY
Subject to City Council approval, ChuIa Vista Cable Ltd. has transferred ownership of its
cable operations and infrastructure within the City ofChula Vista to NexHorizon Broadband
of Southern California Inc., (NexHorizon). Sections 6.c. of the Franchise Agreement
between the City and Chula Vista Cable (Attachment A) require that the Franchisee obtain
City Council consent prior to assigning the Franchise. Staff is recommending that Council
approve the request by Chula Vista Cable to assign the Cable Franchise to NexHorizon.
BACKGROUND
On July 21,1987 the City Council passed a resolution notifYing the public of the
Council's intention to hold a public hearing on August 18, 1987 to consider the granting
of a cable franchise agreement to Ultronics Inc. The City conducted the public hearing
and first reading of the proposed Agreement on August 18 and a second public hearing
was conducted on September 8, 1987. The final reading was September 15, 1987. The
City of Chula Vista entered into a Cable Franchise Agreement with Ultronics Inc., on
November I, 1987. The City approved a request by Ultronics to transfer the Agreement
from Ultronics to a Chula Vista Cable Ltd, on May 12, 1989 and that Agreement remains
in force today. Section 6.c. of the Franchise Agreement allows the Grantee to assign the
Franchise, subject to City Council consent. That Section states that the City's consent
"may not be arbitrarily refused, provided, however, the proposed assignee must show
financial responsibility and must agree to comply with the provisions" of the Franchise
Agreement.
At the request of Chula Vista Cable, the City began negotiations to extend the Franchise
with Chula Vista Cable in 2004. At Council direction staff concluded those negotiations
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MAY 20,2008, Item
Page 2 of 3
in late 2004, which included a Franchise extension for an additional ten years through
November 30, 2020. Due to the tragic death of the founder of the company, and the
subsequent re-organization of the company, Chula Vista Cable did not approach the City
to formally process the Agreement until June of 2007. At that time, Chula Vista Cable
and NexHorizon Communications Inc. approached the City about assigning the Chula
Vista Cable Franchise Agreement to NexHorizon Communications.
Additionally, during that time, Assembly Bill 2987 established the California Digital
Infrastructure and Video Competition Act of 2006 (DIVCA). The Act became effective
January 1, 2007 and provides a mechanism for cable service providers to receive a
statewide video franchise. NexHorizon and Chula Vista Cable have stated their
preference to work with the City to assign the existing Franchise and execute a Public
Benefit Agreement that provides consumers and NexHorizon with the benefits
established in the 2004 Agreement.
ENVIRONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed activity, assignment
of a cable franchise agreement, for compliance with the California Environmental Quality
Act (CEQA) and has determined that the activity is not a "Project" as defined under
Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060 (c)(3)
of the State CEQA Guidelines the activity is not subject to CEQA Although
environmental review is not necessary at this time, each individual construction project
conducted by the applicant mav have environmental review once the projects are further
defined and a CEQA determination will be completed prior to installation of any new
facilities.
RECOMMENDA nON
Council adopt the resolution.
BOARDS/COMMISSION RECOMMENDA nON
Not applicable.
DISCUSSION
Staff has contacted communities served by NexHorizon to verify their capacity to provide
quality service and checked with the FCC to review any past complaints. The record is
generally good with some complaints however, the markets they currently operate in are
very small and individual service issues are proportionally far more significant.
NexHorizon's commitment to updating the Chula Vista Cable infrastructure, the quality of
their products and service in Chula Vista is strong. Its is worth noting that NexHorizon has
already begun to initiate improvements in service training and quality during the
management transition phase of their relationship with Chula Vista Cable. The practices
and commitments made by the proposed owner, as well as state and federal regulations
provide a structure for staff to work with NexHorizon to continue to improve customer
service and consumer protections. NexHorizon has emphasized their commitment to
customer service and understands that Staff will enforce consumer protections in the
NexHorizon Agreement that are equivalent to or better than industry, state and federal
standards. NexHorizon has also demonstrated the financial capacity to upgrade operations
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MAY 20,2008, Item 4-
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and customer service during the transition period and provide additional capital that will
improve the range and quality of services provided to their ChuJa Vista customers.
N exHorizon states that they will "hire a minimum of 100 people with various skill sets from
Customer Service to Engineering," and plans to work with the City and local college to
recruit most, if not all, its employees from the Chula Vista area. If Council approves the
resolution assigning the existing Franchise Agreement, staff will prepare a Public Benefit
Agreement and return to City Council to provide Council and the community with the
opportunity to review and comment on the proposed Agreement.
In connection with seeking the City Council's consent to the assignment, NexHorizon has
satisfied the requirements of Section 6.c. of the Franchise Agreement. Specifically,
NexHorizon has demonstrated to City staff its financial responsibility and ability to assume
the franchise, and has agreed to comply with the terms of the Franchise Agreement. The
assignment of the Franchise Agreement leaves the business terms of the Agreement intact,
including the Franchise Fee payment, which is based on 5% of the cable services gross
receipts, (Section l.h. Ultronics Agreement).
DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is
not site specific and consequently the 500 foot rule found in California Code of
Regulations section I 8704.2(a)(1) is not applicable to this decision.
FISCAL IMP ACT
Council's adoption of this resolution will have no net impact to the City's general fund.
Staff will return to Council with a complimentary Public Benefit Agreement that will
describe the potential financial and service benefits, as well as any potential costs at that
time.
A TT ACHMENTS
A. Ultronics Agreement & Public Notice
B. Agreement for Assignment of Cable Television Franchise
Prepared by: Michael Meacham. Director, Conservation & Environmental Services
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AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND
ULTRONICS, INC., A CALIFORNIA CClRPORATlOO,
GRANTING TO ULTRONICS, INC. THE NON-EXCLUSIVE
RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE
LINES, WIRES, COAXIAL CABLE AND APPURTENANCES FOR
TRANSMITTING, DISTRIBUTING AND SUPPLYING CABLE
TELEVISION SERVICE AIJ:J:I:;, ACROSS AND UPON THE
PUBLIC STREETS, WAYS, ALLEYS AND PLACES WITHIN
THE CITY OF CHOLA VISTA
The parties to
hereinafter referred to as
as "Grantee."
this agreement are the City of Chula Vista,
"City" and Ultronics, Inc., hereinafter referred to
Section 1.
DEFINITIONS.
For the purpose of this franchise, the following terl1\S, phrases,
words, and their derivations shall have the meaning given herein. When not
inconsistent with the context, words used in the present tense include the
future, words in the plural number include the singular number, and words in
the singular mmber include the plural number. provisions of this franchise
shall be construed in accordance with the laws of the State of California.
a. "City": The City of Chula Vista, a municipal corporation of the
state of California, in its present incorporated form, or in any
later reorganized, consolidated, enlarged or reincorporated form.
b. "Council": The present governing body of the City or any future
board constituting the legislative body of the City.
c. "Franchise Property": All property owned, installed or used
under authority of this franchise.
d. "Grantee": The person or corporation to whom or which this
franchise is granted by the Council, and the lawful successor or
assignee thereof, and who or which has filed with the City an
acceptance referred to in Sections 3 hereof.
e. "Street": The surface of, and the space above and below any
public street, road, highway, freeway, lane, alley, court,
sidewalk, parkway, easement, drive or other public place now or
hereafter existing as such within the City.
f. 'Cable TeleVision System": Shall mean a system of antennas,
cables, wires, lines, towers, wave guides, or any other
conductors, converters, equipment or facilities, designed and
constructed for the purpose of prOducing, receiving, amplifying
and distributing, audio, video and other forms of electronic or
electrical signals.
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g. "Subscribers": Any person or entity rece1v1ng for any purpose
the Cable Television System service of the franchise herein.
h. "Total Gross Receipts": Any and all compensation in any form
paid by the subscriber to the Grantee arising from the sale of
basic and pay Cable Television service to customers within the
corporate limits of the City. without limitation, total gross
receipts shall not include (a) uncollectible amounts: (b)
refunds or rebates made by Grantee; (c) revenues received as a
direct reimbursement of Grantee's expense in the operation of
any access channels; (d) sales, ad valorem, or other types of
"add on" taxes, levies or fees calculated by gross receipts or
gross revenues which Grantee might have to payor collect for
Federal, State or local government (exclusive of franchise fees
provided for herein); (e) revenues received for advertising on
Grantee I s local origination channel, to the extent of Grantee 's
direct costs of operation of Grantee I s system: and (f)
non-operating revenues such as income from operations not
requiring use of a franchise or gain from sale of an asset.
Section 2.
FRANCHISE GRANT.
The franchise hereby granted by the City authorizes Ultronics, Inc.,
Grantee, subject to the provisions herein contained, to engage in the business
of operating and providing a Cable Television system in the City, and for that
purpose to erect, install, construct, repair, replace, reconstruct, maintain
'illd retain in streets such poles, wires, cable, conductors, ducts, conduit
aults, manholes, amplifiers, appliances, attachments, and other property as
may be necessary and appurtenant to the Cable Television Systems: and, in
addition, so to use, operate and provide similar properties rented or loaned
from other persons, firms, or corporations, for such purpose.
Section 3.
DURATION OF GRANT.
a. The Franchise granted hereunder shall not become effective until
the happening of following events:
(1) The written acceptance hereof by the Grantee accepting all
of the terms and conditions of this Franchise and agreeing
to be bound thereby, delivered to the City in a form
approved by the City Attorney.
(2)
The filing with the
comprehensive liability
Section l5(a) hereof.
City of evidence
insurance policy
of a gener al
as required in
b. The term of this Franchise shall be twenty-three (23) years,
commencing on the effective date of the Franchise as provided in
paragraph (a) of this section, provided, however, that the term
of this Franchise may be extended in accordance with the
procedures set forth below:
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(1) The provisions of this Franchise shall be subject to
renegotiation every five (5) years during the term of the
Franchise, including any extensions thereof. These
renegotiation opportunities shall be referred to as
"renegotiation intervals." Renegotiation may be initiated
upon written notice given by the City or Grantee to the
other not less than one (1) year prior to the particular
renegotiation interval. Any renegotiation necessary shall
be directed towards effecting alterations in the terms and
conditions of this Franchise to reflect any significant
changes which occurred during the interim period.
(2) If any renegotiation prior to the end of the term,
including extensions of this franchise, results in
agreement between the City and Grantee, or if,
alternatively, both parties agree, at any renegotiation
interval as defined above, that no renegotiation is needed
or required, then the term of this Franchise shall be
extended for an additional five (5) years by an appropriate
action of the City Council. If any renegotiation fails to
result in agreement, the term shall not be extended unless
the City Council so specifies by appropriate action.
(3) This Franchise shall terminate without further action by
the Ci ty at the end of the term, inclUding extensions, of
this Franchise; provided, however, the total term of this
FranChise, with extensions, shall not exceed fifty (50)
years from the effective date of this ordinance; provided,
further, that the City Council, at or before the end of the
term, or the term as extended, retains the exclusive power
to grant a further extension, or a renewal of this
Franchise, or a new Franchise to Grantee.
c. The Franchise may be terminated at any time by the City Council
in the event the Council shall have found, after notice and
hearing, that:
(1) The Grantee fails to comply with any material prOViSion of
this Agreement; however, termination proceedings shall only
be commenced in a public meeting affording due process, if,
after thirty (30) days from written notification from the
City stating with particularity the grounds upon which the
City relies, Grantee fails to correct stated violation. In
the event the stated violation is not reasonably curable
within thirty (30) days, termination proceedings shall not
be commenced if the Grantee provides, within the said
thirty (30) days, a plan, satisfactory to the City Manager
to remedy the violation and continues to derronstrate good
faith in seeking to correct said violation.
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(a) It shall not be a failure to comply with a naterial
provision of this ordinance for Grantee to comply with
any rules and regulations of the Federal
Communications Commission, or any Federal or State
regulatory commission or agency having jurisdiction
over Grantee's operations or any Federal or State law.
(b) 'The Council's finding of nateriality is subject to a
de novo review by a court of competent jurisdiction; or
(2) Any provision hereof has become invalid or unenforceable,
and the Council finds that such provision constituted a
material consideration to the grant of this Franchise.
The Grantee shall be given at least thirty (30) day's notice of any
termination proceedings.
Section 4.
RATES.
The Grantee may establish its own rates and charges.
section 5.
FRANCHISE PAYMENTS.
a. The Grantee shall pay annually to the City, dur ing the life of
this franchise, and at the times hereinafter specified, a sum of
three percent (3%) of the total gross receipts of the Grantee
until January, 1990, after which the rate shall be the greater
of three percent (3%) of the total gross receipts of Grantee or
the rate then charged Cox Cable for its franchise, subsequent to
the periodic renegotiation of rate provision in Cox's
franchise. Such payment by the Grantee shall be in lieu of any
occupation tax or any other tax based upon the gross receipts of
Grantee.
b. The Grantee shall file with the City within ninety (90) days
after the expiration of any calendar year during which this
Franchise is in force, a verified statement showing in
appropriate detail the total gross receipts, as defined herein,
of Grantee, its successors or assigns, during the preceding
calendar year. It shall be the duty of Grantee to pay to the
Ci ty, wi thin fifteen (15) days after the time for filing such
statements, the remaining sum due for the calendar year covered
by such statements. This statement shall be the basis for
quarterly estimated payments as deposits on the franchise
payment due for the following year. Such quarterly estimated
payments are to be nade to the City on or before June 30,
September 30, and December 31 of each calendar year for that
year I s estimated payments. Each estimated payment shall be
equal to twenty five percent (25%) of the previously filed
verified statement, rounded to whole, even dollars. The fourth
payment due after the filing of the annual verified statement
shall adjust for all estimated payments made for that calendar
year.
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c. In the event Grantee fails to make the payment for this
Franchise on or before the date due as hereinabove provided,
Grantee shall pay as additional consideration a sum of money
equal to one percent (1%) of the amount due for each month or
fraction thereof during which the payment is due and unpaid, as
interest and for loss of use of the money due.
d. No acceptance of any payment shall be construed as an accord
that the amount paid is, in fact, the correct amount, nor shall
such acceptance of payment be construed as a release of any
claim which the ci ty may have for further or additional sums
payable under the provisions of this section.
section 6.
LIMITATIONS OF GRANT.
a. No privilege or exemption is granted or conferred by this
Franchise except those specifically prescribed herein or by law.
b. Any privilege claimed under this franchise by the Grantee in any
street shall be subordinate to any prior lawful occupancy of the
streets, or other public property; provided, however, Grantee
does not hereby waive any rights it has acquired vis-a-vis third
parties as a result of Grantee's own proper occupancy.
c. This Franchise is a privilege to be held in personal trust by
the original Grantee. It cannot in any event be transferred in
part, and it is not to be sold, transferred, leased, assigned,
or disposed of as a whole, whether by forced sale, merger,
consolidation, or otherwise, without prior consent of the City
expressed by Resolution, unless pursuant to transfer of
ownership of Grantee as provided in Section 9 hereof, and then
only under such conditions as may be therein prescribed,
provided, however, that no such consent shall be required for
any transfer in trust, mortgage, or other hypothecation, as a
whole, to secure an indebtedness. The said consent of the City
may not be arbitrarily refused, provided, however, the proposed
assignee must show financial responsibility and must agree to
comply with the provisions of this agreement.
d.
Time is of the
be relieved of
provisions by
compliance.
essence of this franchise. The Grantee shall not
its obligation to comply promptly with any of its
any failure of the City to enforce prompt
e. Any right or power in, or duty impressed upon, any officer,
employee, department, or board of the City, is subject to
transfer by the City to any other officer, employee, department
or Board of the City.
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f. Grantee is subject to all requirements of the City ordinances,
rules, regulations, and specifications of the City, not
inconsistent with this Franchise, heretofore or hereafter
enacted or established, including but not limited to, those
concerning street work, street excavations, use, removal and
relocation of property within a street, and other street work.
g. This Franchise does not relieve the Grantee of any obligation
invol ved in obtaining pole space from any department of the
City, the utility companies or from others maintaining poles in
streets.
Section 7.
RIGHTS RESERVED TO CITY.
a. There is hereby reserved to the City every right and power which
is required to be herein reserved or provided by any ordinance
of the City, and the Grantee, by its acceptance of this
Franchise, agrees to be bound thereby, .and to comply with any
action or requirement of the City in its exercise of any such
right or power, heretofore or hereafter enacted or established.
b. This franchise shall be non-exclusive, and neither the granting
of this Franchise nor any of the provisions contained herein
shall be construed to prevent the City from granting any
identical, or similar franchise to any person or corporation
other than the Grantee.
Section 8.
SERVICES TO CITY AND PUBLIC SCHOOLS.
Grantee shall at its own expense and without any cost to the City
whatsoever, provide and maintain the following facilities and services to the
City and Public Schools as hereinafter provided:
a. One active cable television connection to each City unit
designated by the City Manager such as police stations, fire
stations, publiC libraries and other City facilities within
Grantee's franchise area that require an aerial drop of 150 feet
or less from the existing cable television distribution system.
Grantee shall not be required to provide the cable television
distribution system within said facilities;
b. One active cable television connection to each public elementary
school site, secondary school site, college or university site
and educational administrative site within Grantee I s Franchise
area that require an aerial drop of 150 feet or less from the
existing cable television distribution system. Grantee shall
not be required to provide the cable television distribution
system within said facilities;
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c. Grantee shall not charge the city or public schools any fee for
providing the distribution of video irrages or audio signals to
any of the buildings so connected;
d. In the event that the City or school system desires additional
service, the Grantee shall provide the basic cable outlet,
services and hardware, charging the City or school system the
actual variable cost to Grantee of such services.
e. Grantee shall make available without cost one channel for use by
Local Governments in all of its San Diego franchises for the
distribution of programming in the public interest. Grantee may
provide interconnection of such channel with all other Cable
Television Systems operating pursuant to a franchise granted by
City. If Grantee operates a remote or permanent vehicle and
equipment for telecasting and video taping, Grantee shall
provide origination service to City at such reasonable times and
costs as are mutually agreed upon.
f. Grantee shall rrake available without cost, one channel for use
by Public Schools in all of its San Diego franchises. As
required by Grantee, the Public Schools shall save and hold
harmless Grantee from any uses made bY the Public Schools in the
distribution of programming.
g. City shall save and hold harmless Grantee from any uses made by
the City in the distribution of programming in the pUblic
interest as provided for in Subsection (e) of this section.
h. Grantee shall make available without cost, one channel for
public or community access in all of its San Diego franchises in
accordance with reasonable rules, regulations and conditions,
provided, however, that to the extent that the Federal
Communications Comnission (FCC) exercises jurisdiction as
determined by Federal statute or decisional law to be valid and
appropriate, said access rules shall govern.
Section 9.
TRANSFER OF OWNERSHIP OR CCNTROL OF GRANTEE.
In the event the Grantee is a corporation, prior approval of the City
Council, expressed by resolution, shall be required when ownership or control
of thirty percent (30%) or more of the voting stock of Grantee is acquired by
a person or a group of persons acting in concert, none of whom already own or
control thirty percent (30%) or more of the voting stock, singularly or
collecti vely.
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Section 10.
ESTABLISHMENT OF SERVICE.
Installation of a CAW System shall be commenced within one hundred
eighty (180) days after the effective ate of this franchise, and extensions
and service pursued with due diligence thereafter. Failure to so commence and
diligently pursue to completion shall be grounds for termination of this
franchise.
Section 11.
LOCATION OF FRANCHISE PROPERTIES.
a. Franchise property shall be constructed or installed in streets
only at such locations and in such ll\3J1I1er as shall be approved
by the Superintendent of streets, acting in the exercise of
reasonable discretion.
b. The Franchise property shall be placed underground in all
subdivisions which are subject to the provisions of the Q"lUla
Vista Municipal Code.
Section 12.
ABANOONMENT OF SERVICE.
a. After Grantee has established service pursuant to this
Franchise, such service shall not be suspended or abandoned in
the whole of or any part of the Franchise area unless the
suspension or abandonment is authorized by the City Council.
b. Whenever Grantee shall file with the City Council a written
application alleging that the public interest, convenience and
necessity no longer require that Grantee furnish service
pursuant to this ordinance in the whole of or in any part of the
Fr anchise area, the Ci ty Council, at a public hear ing , shall
take evidence upon that question and shall make a finding with
respect to it. Notice of the hearing shall be given by Grantee
in writing to each Subscriber in the part of the Franchise area
in question at least fifteen (15) day prior to the date
scheduled for the hearing. If the City COuncil shall find that
the public interest, convenience and necessity no longer
requires that Grantee furnish service, the City Council, after
hearing as provided herein, shall authorize suspension or
abandonment of service upon such reasonable terms and conditions
as may be prescribed by the City Council.
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section 13.
DISPOSITION
DISTRIBUTICN
FRANCHISE.
OF FRANCHISE PRCPER'l'Y OR CABLE
SysrEM UP<:t< EXPIRATION OR TERMINATION OF
a. Upon the termination of this Franchise under Section 3 or 11
hereof, the Ci ty rray purchase the cable television system, or
any part thereof, in accordance with subsection (b) of this
section. If the City elects to purchase the system, or any part
thereof, the Grantee shall promptly execute, upon receipt of the
fair rrarket value purchase price, all appropriate documents to
transfer title to the Ci ty. Upon acquisition of and payment for
the system, or any part thereof, the Grantee shall cooperate
wi th the City, or with any other person author ized or directed
by the City to operate the system, in rraintaining continuity of
service. Nothing herein is intended as a waiver of any other
rights the City may have.
b. The purchase price to the City for the Grantee's property shall
be determined by agreement or by arbitration as provided in
subsection (e) hereof. The standard for determining the price
to be paid for the property so acquired shall be that provided
by law affecting the fair market value of similar properties
applicable on the effective date of the purchase. If the City
does not purchase the system, the Grantee shall deal with the
part of the system located in the streets in accordance with
provisions of subsections (c) and (d) of this section.
c. In the event that (1) the use of any Franchise property is
discontinued for any reason for a continuous period of twelve
(12) months; or (2) the Franchise has been installed in any
street without complying with the requirements of this
Franchise; or (3) the Franchise has been terminated,
surrendered, cancelled or has expired, and City has not
exercised its rights pursuant to subsection (a) of this section,
the Grantee shall promptly remove from the street all such
property other than any which the City Engineer may permit to be
abandoned in place. In the event of any such removal, the
Grantee shall promptly restore the street or other area from
which such property has been removed to a condition satisfactory
to the City Engineer.
d. Franchise property to be abandoned in place shall be abandoned
in such manner as the City Engineer shall prescribe.
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e. In the event that arbitration is necessary to determine the
purchase price to the City for the Grantee's property the
parties may agree upon one arbitrator, but in the event that
they cannot agree, there shall be three, one named in writing by
each of the parties within fifteen (15) days after demand for
arbitration is given and a third chosen by the two appointed.
Should either party refuse or neglect to join in the appointment
of the arbitrator(s) or to furnish the arbitrator(s) with any
papers or information demanded, the arbitrator(s) are empowered
by both parties to proceed ex parte. If there is only one
arbitrator, his decision shall be binding and conclusive on the
parties, and if there are three arbitrators the decision of any
two shall be binding and conclusive. A jUdgment confirming the
award of the arbitrator(s) may be rendered by any superior Court
having jurisdiction. Arbitration hereunder shall be governed by
the provisions of the California Arbitration Act, Section 1280
through 1294.2 of the Code of Civil Procedure. Each party shall
bear the cost of its own appointee and bear the cost equally for
any arbitrator appointed by both parties.
Section 14.
CHANGES REQUIRED BY PUBLIC IMPROVEMENTS.
The Grantee shall, at its expense, protect, support, temporarily
disconnect, relocate above or below ground at Grantor's option in the same
street,. alley, or public place, or remove from any street, alley or public
place, any Franchise property when required by the City Engineer by reason of
traffic conditions, public safety, street vacation, freeway and street
onstruction, change or establishment of street grade, installation of sewers,
drains, water pipes, power lines, signal lines, and tracks and of any other
type of structures or improvements by governmental agencies when acting in a
governmental or proprietary capacity or any other structures or public
improvements; provided, however, that Grantee shall in all such cases have the
privileges and be subject to the obligations to abandon Franchise property in
place, as provided in Section 12(d) hereof.
Section 15.
FAILURE TO PERFORM STREET WORK.
Upon failure of the Grantee to complete any work required by the
provisions of this Franchise to be done in any street, within the time
prescribed and to the satisfaction of the City Engineer, the City Engineer may
cause such work to be done and the Grantee shall pay to the City the cost
thereof in the itemized amounts reported by the City Engineer to the Grantee,
within thirty (3D) days after receipt of such itemized report. The City shall
give at least a thirty (30) day notice to the Grantee of such work to be done
prior to City's commencement of such work.
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Section 16.
FAITHFUL PERFORMANCE BOND.
The Grantee shall, within five (5) days after the award of this
franchise, file with the City Clerk, and at all times thereafter maintain in
full force and effect, an acceptable corporate surety bond, in duplicate, in
the amount of Five Thousand Dollars ($5,000.00) effective for the entire term
of this franchise, and conditioned that in the event the Grantee shall fail to
comply with anyone or more of the provisions of this franchise, then there
shall be recoverable jointly and severally from the principal and surety of
such bond, any damages suffered by the City as a result thereof, including the
full amount of any compensation, indemnification, or costs of removal or
abandorunent of property as prescribed by Section 5 hereof which may be in
default, up to the full amount of the bond; said condition to be a continuing
obligation for the duration of this franchise and thereafter until the Grantee
has liquidated all of its obligations with the City that may have arisen from
the acceptance of this franchise by the Grantee or from its exercise or any
priVilege herein granted.
Section 17.
INDEMNIFICATION TO CITY.
a. Grantee agrees that at all times during the existence of this
Franchise it will maintain in force, furnish and file with the
City a certificate of insurance evidencing, at its own expense,
a general comprehensive liability insurance policy, naming the
Ci ty as additional insured, in protection of Ci ty, its boards,
commissions, officers, agents and employees, in a company
authorized to do business in the State of california, and in
form satisfactory to the City Attorney, protecting the City and
said persons against liability for loss or damages for personal
injury, death and property damage occasioned by the operations
of Grantee under this Franchise, with minimum liability limits
of $500,000 for personal injury or death of anyone person, and
$1,000,000 for personal injury or death of two or more persons
in anyone occurrence, and $300,000 for damage to property
resulting from anyone occurrence.
b. The policies mentioned in the foregoing paragraph shall contain
a provision that a written notice of any cancellation or
reduction in coverage of said policy shall be delivered to the
City ten (10) days in advance of the effective date thereof. If
such insurance is provided in either case by a policy which also
covers Grantee or any other entity or person than those above
named, then such policy shall contain the standard
cross-liability endorsement.
-11-
IV . r '"
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c. In addition to the above policies Grantee shall agree to
indemnify Ci ty, its boards, cOImllissions, officers, agents and
employees, against all claims, demands, actions, suits and
proceeding by others and against all liability to others, and
against any loss, cost and expense resulting therefrom,
excepting acts of negligence or other acts by the City,
including reasonable attorneys fees, arising out of the exercise
or enjoyment of this Franchise.
Section 18.
Ra;ULATION OF SERVICE.
Grantee shall:
a. Operate the Cable Television System authorized by this Franchise
in accordance with the minimum technical standards set forth by
the FCC, to the effect that the Subscriber shall receive the
best possible signal to his television set consistent with the
state of the art and economic operation of the system.
b. Limit failure to a mlmmum by locating and taking steps to
correct malfunctions promptly, but in no event longer than
seventy-two (72) hours after notice.
c. upon complaint by Subscriber make a demonstration satisfactory
to the City Manager or his designated representative that a
signal is being delivered which is of sufficient strength and
quality to meet the said technical standards referenced to in
(a) above.
d. Render efficient service, making repairs promptly and
interrupting service only for good cause and for the shortest
time possible; such interruptions insofar as possible shall be
preceded by notice given to Subscribers twenty-four (24) hours
in advance where possible and shall occur during periods of
minimum use of system.
e. Have a toll free telephone number listed in the local telephone
directory, and be so operated that requests for repair may be
received at any time.
f. Operate the Cable Television System authorized by this ordinance
twenty-four (24) hours per day, seven (7) days per week.
g. Not refuse to accept a subscriber unless it was not in the
public interest or not reasonably economically feasible for
Grantee to furnish service for that proposed subscriber.
h. Not deny access to cable services to any group of potential
residential cable subscribers because of the income of the
residents of the local area in which such group resides.
.t..... .
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-12-
If a Subscriber is unable to obtain satisfactory resolution of a
~omplaint filed with Grantee, the Subscriber may notify the city in writing,
stating the Subscriber's name and address, the nature of the complaint and the
action taken to secure resolution of the complaint by the Grantee.
Section 19.
FILINGS AND COMMUNICATION WITH REGULATORY AGENCIES.
Copies of all petitions, applications and communications of all types
submitted by Grantee or City to the Federal Communications Commission,
California Public Utilities Commission, or any other Federal or State
regulatory commission or agency having jurisdiction over any matter affecting
operation of Grantee's Cable Television System shall be submitted
simul taneously to the City or Grantee. A copy of each document filed by the
Grantee with the City Clerk in accordance with this section shall be deemed to
be delivered.
Section 20.
INSPOCTIrn OF PROPERTY AND RECORDS.
At all reasonable times, the Grantee shall permit any duly authorized
representative of the City to examine all Franchise property, together with
any appurtenant property of the Grantee situated wi thin the City, and to
examine all maps and other records kept or maintained by the Grantee, which
treat the operations, affairs, transactions or property of the Grantee with
respect thereto and to determine whether the Grantee has paid franchise fees
in the amounts prescribed in Section 5. The Grantee shall prepare and furnish
to the Ci ty Engineer at the time and in the form prescribed by the Ci ty
Bngineer, such reports, with respect to its operations, affairs, transactions
,r property, as may be reasonably necessary or appropriate to the performance
of any of the duties of the City or any of its officers and employees in
connection with this Franchise. The Grantee shall, at all times, make and
keep full and complete plans, maps, and records, showing the exact location of
all cable Television System equipment installed or in use by Grantee in
streets, alleys and public places of the City.
The Grantee shall maintain a written record of customer service
requests and complaints and make an annual report to the City thereof. Such
records shall be available for inspection by the City. The Grantee shall
notify the City of any changes in the customer service agreement or in the
complaint procedure to be followed by the customers.
Section 21.
DISPUTES.
In the event of a bringing of any action by either party hereto
against the other hereon or hereunder, or by reason of the breach of any term,
covenant or condition on the part of the other party, or arising out of this
Agreement, the party in whose favor final judgment shall be entered, shall be
entitled to have and recover from the other party reasonable attorney's fees
to be fixed by the Court which shall have rendered the judgment.
-13-
II'. /;..
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\
Section 22.
MISCELLANEDUS PROJISIONS.
a. All notices herein provided for may be by prepaid registered or
certified mail addressed to the parties as follows:
TO THE CITY:
WITH CCPY TO:
City Clerk
276 Fourth Avenue
Chula Vista, CA 92010
Thomas J. Harron
City Attorney
276 Fourth Avenue
Chula Vista, CA 92010
TO THE GRANTEE:
WITH Copy TO:
Ultronics, Inc.
7777 Alvarado Rd., Suite 700
La Mesa, CA 92041
and shall be considered as given only when received by the other
party.
All matters herein provided to be filed with the City shall be filed
with the City Clerk.
b. The Grantee shall not engage in the business of repairing
television receivers or the sale of parts for the same. It is
understood, however, that the foregoing does not apply to
converters, decoders, or other types of electronic signal
adapters or decoders required for the subscriber's television
set to receive any of Grantee's signals.
c. Grantee and the City agree to discuss future non-entertainment
uses of the cable television system during the term of this
franchise agreement. Both parties agree to discuss and consider
entering into mutually advantageous joint ventures to promote
business or other non-entertainrnent uses of the cable system,
which discussion may include City taxation and bonding powers.
This discussion and consideration may be initiated by either
party upon a minimum of 30 days written notice, with a proposed
agenda to be included. This paragraph reflects the intent of
the Grantee and the City to maintain a strong cooperative
relationship which may lead to the introduction of new cable
related business services within the City in a manner which is
mutually advantageous and acceptable to both the Grantee and the
City.
-14-
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d. Not withstanding any other prOViSions of this agreement, Grantee
shall at all times comply with all State and Federal laws, rules
and regulations, or any administrative agency thereof; provided,
however, if any such ordinance, law, rule or regulation shall
require the Grantee to perform any act or shall permit the
Grantee to perform any act in conflict with the provisions and
terms of this agreement, then such provision or term in conflict
may be modified or amended by agreement of the parties to such
reasonable extent necessary to carry out the full intent and
purpose of this agreement.
EXECUTED THIS 15th
day of
September
, 19 87
CITY OF CHULA VISTA
a Municipal corporation
ULTRCl'IICS, INC.
By, ~~.~
Gregory , Mayor
By,mad; -i~
/?U~-rJ"
~0C-'",-
Approved as to form
J
D. Richard Rudolf,
Assistant City Atto
WPC 1696A
-15-
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,
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UI1:rania.
November I, 1987
Mr. John Goss
City Manager
City of Chula Vista
Chula Vista, CA 92010
Dear Mr. Goss,
On behalf of ULTRONICS, INC., I accept all of the terms and
conditions of the Cable Television Franchise Agreement granted to
ULTRONICS. I look forward to the challenge presented to me; and
am excited about giving the citizens of Chula Vista an alternative
t ~eir present cable television service.
I have enclosed an insurance certificate as required by the
Agreement. The surety bond will be in the mail to you in the next
few days.
Sincerly,
Y11. .J- ;;]"
/ /IIUCvtf, l.-~""'-
Martin Altbaum, President
ULTRONICS, INC.
,~ f::
Ci.
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SATELLITE MASTER ANTENNA TELEVISION
7777 ALVARADO ROAD, SUITE 700, LA MESA, CALIFORNIA 92041 - (619) 461.7977
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PRODUCE?
Teague Insurance Agency, Inc.
77- Alvarado Rd., #606
L~ sa, CA 92041
THIS CERTIFICATE 15 ISSUED AS A MATTER OF INFORMATION ONLY A.ND CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLOER. THIS CERTifiCATE DOES NOT AMEND,
EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
)ESCRIPTION OF OPERATlONSilOCATIONSNEHtCLESfSPECIAL ITEMS
CERTIFICAT~ HOLDER IS NAMED
AS ADDITIONAL INSURED
COMPANIES AFFORDING COVERAGE
Ultronics A Calif. Corp.
DBA: The Satellite Store
7777 Alvarado Rd., #700
La Mesa, CA 92041
COMPANY A Golden Eagle
lETTER
COMPANY B
LETTER
COMPANY C
LETTER
COMPANY D
LETTER
COMPANY E
LETTER
INSURED
.
THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUEO TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDJNG ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY
BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POliCIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND CONOJ.
TIONS OF SUCH POLICIES.
CO
LTR
TYPE OF INSURANCE
POLICY NUMBER
POLICY HFECTlVE POLICY EXPIRATION LIABILITY LIMITS IN THOUSANDS
DAn IMMIDONY) DATE (MMIDOIYYI EACH AGGREGATE
OCCURRENCE
BODilY
INJURY $ $
PROPERTY
4-14-87 4-14-88 DAMAGE $ $
A
GENERAL LIABILITY
X COMPREHENSM FORM
PREMISEs/OPERA lIONS
UNDERGROUND
EXPLOSION & COLLAPSE HAlARD
PflODUCTs/COMPlETED OPERATIONS
CONTRACTUAL
INDEPENDENT COr-,"-RACTORS
"'1AD FORM PROPERTY DAMAGE
JONAL INJURY
I
ICMP
016525-01
BI&PD $1
COMBINED ,000
$ 1,()00
AUTOMOBILE LIABILITY
ANY AUTO
ALL OWNED AUTOS (PAN PASS_)
All OWNED AUTDS (DTHER THAN. )
PR!V. PASS
HIRED AUTOS
NON-OWNED AUTOS
GARAGE LIABILITY
PERSONAL INJURY $
BQDLY
"",AY $
lPERPERSONI
BOOty
IIlJlJlY $
iPm ACCIDENT!
PROPERTY
DAMAGE $
61 & PO
COMBINED $
EXCESS LIABILITY
UMBRELLA FORM
OTHER THAN UMBRELLA FORM
~6t:~ED $
$
S,ATUTORY
WORKERS' COMPENSATION
AND
EMPLOYERS' LIABILITY
$
$
$
(EACH ACCIDENT)
(DISEASE-POLICY LIMIT)
(DISEASE-EACH EMPLOYEE)
OTHER
Clrv
276 AVENUE
CHULA VISTA, CA 92010
PROOF OF PUBUCATlON
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RESOLUTION NO. 14134
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AGREEMENT FOR ASSIGNMENT
OF CABLE TELEVISION FRANCHISE FROM ULTRONICS,
INC. TO CHULA VISTA CABLE, A CALIFORNIA
LIMITED PARTNERSHIP
The City Council of the City of Chula Vista does hereby
resolve as follows:
WHEREAS, on September 15, 1987, by Ordinance No. 2230,
the Chula Vista City Council granted a non-exclusive cable
television to Ultronics, Inc. pursuant to Chapter XII of the
Chula vista City Charter Section 1203 and Chula Vista Municipal
Code Section 5.30.010 requi re that franchise services be
performed only by the holder of the franchise, and
WHEREAS, Charter Section 1203 prohibits the transfer or
assignment of any franchise granted by the City Council unless
the City Council consents thereto in writing and unless the
transferree or assignee covenants and agrees to perform and be
bound by each and all of the terms and conditions imposed in the
franchise and the procedural ordinance and the Charter, and
WHEREAS, on November 10,1987, Ultronics, Inc. and
Doreen and John Whitney formed a California limited partnerShip
known as Chula Vista Cable for the purpose of operating the
franchise and exercising the franchise rights of ultronics, Inc.
in the City of Chula Vista for the provision of cable television
services, and
WHEREAS, Ultronics, Inc. has requested approval for the
transfer and assignment of the franchise rights and
responsibilities from Ultronics, Inc. to Chula Vista Cable, a
California limited partnerShip, and
WHEREAS, the Council finds that Chula Vista Cable is as
or more economically viable than Ultronics, Inc. to exercise the
franchise rights and responsibilities of Ultronics, Inc. in the
distribution of cable television service in Chula Vista and all
the Charter and Municipal Code requirements have been met.
NOW, THEREFORE, BE IT RESOLVED that the City Council of
the City of Chula Vista does hereby approve of that certain
agreement between Ultronics, Inc. and Chula Vista Cable, a
California limited partnership (a copy of which is attached
hereto and incorporated by this reference) providing for the
assignment of the franchise rights and responsibilities of
Ultronics, Inc. to Chula Vista Cable, a California limited
partnership. -*
-1-
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->( SI2e ~~-L ,\.b; ~o8,! - Wi
BE IT FURTHER RESOLVED that the Mayor is authorized to
indicate the city council's written approval of said assignment
by executing said agreement.
Presented ana Approved as to form by
-~~
D. Richard Rudolf,
5797a
(.
t City Attorney
-2-
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ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
"iULA VISTA, CALiFORNIA, this
13th
day of
June
/9 89 ,by the following vote, to-wit:
AYES;
Counci 1 members
McCandliss, Nader, Cox, Moore
NAYES;
ABSTAIN;
ABSENT:
Counc il members
None
Counc; 1 members
None
Counci 1 members
Malcolm
May
ATTEST~~<~/ ~rfi1;~
U City Clerk
c~
e City of Chula Vista
,TE OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA )
I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California,
DO HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 14134
. and that the same has not been amended or repealed
DATED
City Clerk
((-660
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a..ign.. in accordanco with the partner.hip Agreement and in
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FOn ASSIGNMENT
OF'
'r&LEVISION l'RANClItSE
,;{;>,\~..",," ~.
"'
'1'HIB AGREEMENT lllaae thh t'1+~ day of ~/'r'i
. .,', >,' .
at,Chula Vi.tat.California. by and between OLTRONICS.
J" .. ',..
a california 'corporation. hereinafter referred to a.
. 1989.
INC. .
.,
BA.siinorBt and CHOLA VISTA CABLE, a California limited
.i., ;' ~ .
partnerlhip,rererred to in thi. Agreement .1 -A.lignae-,
WHEREAS, bY,?rdinance Number 223n, As.ignor wa. gr.nted
a non-exclu.lvo>frsnch!~., herelnafter referred to a. the
0'
"rr.nc~1W..,"byth' C:i.ty af Chuh Vhta. California, to
, ,
contract and operate a cable televilion .y.t~m and .ervice
. 'within aald' city, -and
.' ,
.
,; MHERlAS,'A..lgnor. a., the general partner, on or about
. lfovllllber 10, '1987. by a written limited partnership agree-
, ': " ~;. ~Ioo ."
aent, harelnafter referred to as the Bpartnerlhip Agree-
II8IltB' 'fonle4' Aul11nee for the purpose of the ownership and
operation of a cable televi.lon sy.tem within .aid city
paieuant to the Franchi.e, and
WHEREAS, pur.uant to .aid Partnership Agreement.
a..i~or ie requIred. a. a part of it. cepital cuntribution,
to ...1qn the Franchils to A..i9nee in, con.ideration of
.1xty pe~ccnt (60\) equity ownership intere.t in A.li9ne.
and 4 4e!erred ca.h pa~ent, and
"
. WHEREAS, A..19nor desiro. to a..i9n the 'ranchi.e to
Chartar Section 1203 and Chul.
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".:l,:'~g*<: ,california, to the a..i9nm.nt h.rein made, .....i9n.. cove- " ~>, ,.
r l.~fI Mat. and agree. to perfom and be bound by each and aU of-,;,,}. iIo ~
, n,,;>"., ~e teraa and condition. blpo..d by the Franchise, and by ',' . ':"!'
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2,1 ~', heroin contained. and other 900d and vllluable conlideraUon,
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ASSIGRKEN'l'.
" ri'1ht,
~AI.lgnor hereby ...igna to A..i9n.e all of itl
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title and lntere.t 1n and to the Franchi.e, and all
of the r19ht..'privile~e. end po~r. ther.in contained,
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nrrantir.cit~ ~d'ln.o that the ume have nQt pnvioull1y
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...igned, tran.terred, or hypothecated 1n anyway to any
other party. _
2. CONSIDERATION.
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.... and for con.ideratlon for the a..i9nm.nt herein
.ade. A..i~ne. confirm. to A..ignor a lixty perc.nt 160"
'capital inter'lt in A..i9n.. and d.livers to A..iqnor it.
proaL..ory not. in accordanc. with the term. of the r~rtner-
ship Aireament, r.c.ipt of which i. her.by acknowledged by
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ACCEPTANCE.
A..iin.. her.by accept. laid ...ignm.nt of the
Franchi.e, and a..UIIl.. all of the obligation. of the fran-
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chi... a. therein .et forth.
In .pecial con.id.ration tor
the con.ent of the City Council of the City of Chula Vi.ta.
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the Chub VIne CIty Chartor and the Chull\ Viata Municipal
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... '.'. FORM or- AGREEMENT.
\,". 'l'h. lubject headlnga of the paragraphs and sub-
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paragraph. or thia Agreement are lneluded for th~ purr-oae.
of convenience only and ahall not effeet the eonatruetlon or "
Intorpretat,lon Of. ,any, of Hs provhiona. . This A9nem.nt
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. con.tltu~e. tha entire Aqrellment between th~ partie. per-
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'talnln9"to'the lubject matter eontainod in it Ilnd Dupllreede.'
all pr1o~'or.eontemporaneou. agreemente, repreaentationa,
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and underltandln9 of the partIel. No eupplllment, modifIea-.;
t1on, or amendment of thi. A9reemllnl: shall be binding unle.a
executed in vritin9 by both of the partiol hereto. No
valver of any of the proviaions of this Agreement ahall be
de~, or ahall eonatitute, a waIver of any other pro-
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vi.ion., whather or not .imilar, nor ahall any waiver
con.tItute a continuing vaiver. No waiver ahall be binding
unle.. executed in vritinq by the partie. making the waiver.
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\ . 5. ATTORNEY'S FEES.
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r Should any 1ec;a1 proeeedinq be inlltituted to ,'. " ,. .
~'I' ~: enforce thla "c;rI8lllent, or any of the provlaions thenof,':: .^~.:,.J~~
~' tho pnva1llnq party ahall be entitled'to, in addition to "":~>'I
i' . any (lther r_edy provided by lllw or equity, reaaonable eourt ..~:~~
;,:, ~ . ' COlt. and attorney'. f... .. dotemined by a court of .<~~,'~:,
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; \,li<<fY " ,. CALIFOJUCIA u.w. . :'},~J~
;1 !~~~~"c,~:J~' '1"h1. Aqre_nt ahan be qovcrned by the lawl of' .~~)'S:;
:: \j~~t<~ the Stat. of Callfornia applicAblo to ac;nOIll~ntl llld. and to !4~:", .
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UL'l'~ONICS, INC., a California' ""t~~
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Dy ULTRONICS, INC., a California.. ,:,. .:.
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\ ~~i,t,~ i~~'J.'Ml88 WBlRlO', the partin to thla Agreoment have
'duly executed on the day and year fir.t above vritten.
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"SSIGNOR
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ASSIGNEE
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t'ltU!.1. VISTA CABLE. II Cal1fornh "
Limitod partner.hip,
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MITHORIZATION
Con..nt ot the'City'Council for the City of Chula
Vi.ta,Calitomia, i. hereby qiven to the aB.iq~.ent and
tran.ter of the franchi.. rights hereinabove made from
OLTRONICS, INC., . California corporation, to CHULh VISTA
CABLE, . California LLmited Partnership, and CHOLA VISTA
CABLE, a California L~lted Partnership, i. horeby accepted
.. the Franchi.ee ~n4~r Chula Vista Ordinance Number 2230 in
."place and in stud of ULTRONICS, INC., a California corpo-
ration.
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By
Hayor
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THE A TT ACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALL Y SIGNED UPON APPROVAL BY
THE CITY COUNCIL
Dated: 41 L(( o~
Agreement for Assignment of Cable Television Franchise
Between Chula Vista Cable, Ltd, and NexHorizon Communications, Inc.
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AGREEMENT FOR ASSIGNMENT
OF
CABLE TELEVISION FRANCHISE
THIS AGREEMENT made this 8th day of May, 2008, at Chula Vista, California, by and between
CHULA VISTA CABLE, LTD., a California Limited Partnership, hereinafter referred to as
"Assignor" or "CVC", and NEXHORIZON COMMUNICATIONS, INC. or its subsidiary, referred
to in this Agreement as "Assignee."
WHEREAS, on September 8, 1987, by Ordinance number 2230, the City of Chula Vista (the
"City") granted a franchise to Ultronics, Inc., pursuant to the "Agreement Between the City of Chula
Vista and Ultronics, Inc., a California corporation, Granting Ultronics, Inc. the Non-Exclusive Right,
Privilege and Franchise to Lay and Use Lines, Wires, Coaxial Cable and Appurtenances for
Transmitting, Distributing and Supplying Cable Television Service Along, Across and Upon the
Public Streets, Ways, Alleys and Places Within the City ofChula Vista" (the "Franchise"); and
WHEREAS, on June 7, 1989, the City approved the assignment of the Franchise from
Ultronics, Inc. to Assignor, pursuant to Resolution No. 14134; and
WHEREAS, Assignor, on or about January 1,2008, by a written Agreement Regarding Sale
of Assets of, and Stock in Two Cable Companies Agreement, hereinafter referred to as the
"Purchase Agreement", agreed to sell 100% of the assets and the business in Assignor for the
purpose of transferring the ownership and operation of a cable television system within said city
pursuant to the Franchise provided that approval is granted by City Council for transfer of franchise.
WHEREAS, pursuant to said Purchase Agreement, Assignor is required, as a part of its
capital contribution, to assign the Franchise to Assignee in consideration of a one hundred percent
(100%) equity ownership interest in the form of cash, stock and note payment; and
WHEREAS, Assignor desires to assign the Franchise to Assignee in accordance with the
Partnership Agreement in compliance with Chula Vista Charter Section 1203, Chula Vista
Municipal code Section 5.30.010, and section 6.c. of the Franchise agreement, and Assignee desires
to accept such assignment;
NOW, THEREFORE, in consideration of the mutual promises herein contained, and other
good and valuable consideration, the parties hereto agree as follows:
1) ASSIGNMENT
Assignor hereby assigns to Assignee all of its right, title, and interest in the Franchise, and all of
the rights, privileges and powers therein contained, warranting to Assignee that the same has not
previously been assigned, transferred, or hypothecated in anyway to any other party.
2) CONSIDERATION
In exchange for the Franchise the Assets to be Acquired, Buyer shall pay and deliver to CVC the
consideration established in the Purchase Agreement.
3) ACCEPTANCE
Assignee hereby accepts said assignment of the Franchise, and assumes all of the obligations of
'I!
if. . .3()
3) ACCEPTANCE
Assignee hereby accepts said assignment of the Franchise, and asswnes all of the obligations of
the Franchise, as set forth in the Purchase Agreement. In special consideration for the consent of
the City Council of the City of Chula Vista, California, to the assignment herein made, Assignee
covenants and agrees to comply with, perform and be bound by each and all of the terms and
conditions imposed by the Franchise, and by the Chula Vista City Charter and the Chula Vista
Municipal Code with respect thereto.
4) FORM AGREEMENT
The subject headings of the paragraphs and subparagraphs of this Agreement are included for the
purposes of convenience only and shall not effect the construction or interpretation of any of its
provisions. This Agreement constitutes the entire agreement between the parties pertaining to the
subject matter contained in it and supersedes all prior or contemporaneous agreements,
representations, and understanding of the parties. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver
of any other provisions, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the parties making the waiver.
5) ATTORNEY'S FEES
Should any legal proceeding by instituted to enforce this Agreement, or any of the provisions
thereof, the prevailing party shall be entitled to, in addition to any other remedy provided by law
or equity, reasonable court costs and attorney's fees as determined by a court of competent
jurisdiction.
6) CALlFORt"JIA LAW
This Agreement shall be governed by the laws of the State of California applicable to agreements
made and to be executed within California.
"
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IN WITNESS WHEREOF, the parties to this Agreement have duly executed on the day and year
first above written.
Chula Vista Cable, Ltd., a California Limited Partnership
BY:Qy......,./(.# j ~~~
(Signature)
Barbara Altbaum, General Partner
Barbara Altbaum, Trustee of the Altbaum Family Trust
Barbara Altbaum, President of Ultronics, Inc.
NexHorizon Communications, Inc.
By:0:JY\rvl -S ~ tv.
C 'ALII'''' (s~att~ !-I,l.(, S ii::,
Calvin D. Smiley, Sr. I'
President & CEO
"
#- 3..;...-
SIGNA TURE PAGE AUTHORIZING THE AGREEMENT FOR ASSIGNMENT
OF CABLE TELEVISION FRANCHISE
Consent of the City Council of the City of Chula Vista, California, is hereby given to the assignment
and transfer of the franchise rights hereinabove made from Chula Vista Cable, Ltd., a California
Limited Partnership, to NexHorizon Communications, Inc. and NexHorzon Communications, Inc. is
hereby accepted as the Franchisee under Chula Vista Ordinance Number 2230 in place and in stead
of Ultronics, Inc. a California corporation, and its assignee, Chula Vista Cable, Ltd., a California
Limited Partnership.
Dated:
,2008
City of Chula Vista
By:
Cheryl Cox, Mayor
Attest:
, City Clerk
Approved as to Form:
, City Attorney
Dated:
/. .2::>
..... . .::>...;
AGREEMENT FOR ASSIGNMENT
OF
CABLE TELEVISION FRANCHISE
/-krr 4
~~
lY;{rlribufed efrleelr,
?IZO/~E
THIS AGREEMENT made this 8th day of May, 2008, at Chula Vista, California, by and between
CHULA VISTA CABLE, LTD., a California Limited Partnership, hereinafter referred to as
"Assignor" or "CVC", and NEXHORIZON COMMUNICATIONS, INC. or its subsidiary, referred
to in this Agreement as "Assignee."
WHEREAS, on September 8,1987, by Ordinance number 2230, the City ofChula Vista (the
"City") granted a franchise to Ultronics, Inc., pursuant to the "Agreement Between the City of Chula
Vista and Ultronics, Inc., a California corporation, Granting Ultronics, Inc. the Non-Exclusive Right,
Privilege and Franchise to Lay and Use Lines, Wires, Coaxial Cable and Appurtenances for
Transmitting, Distributing and Supplying Cable Television Service Along, Across and Upon the
Public Streets, Ways, Alleys and Places Within the City ofChula Vista" (the "Franchise"); and
WHEREAS, on June 7, 1989, the City approved the assignment of the Franchise from
Ultronics, Inc. to Assignor, pursuant to Resolution No. 14134; and
WHEREAS, ASSign~out January 1,2008, by a written Agreement Regarding Sale
of Assets of, and Stock ~ble Comp~ies Agreement, hereinafter referred to as the
"Purchase Agreement", agreed to sell 100% of the assets and the business in Assignor for the
purpose of transferring the ownership and operation of a cable television system within said city
pursuant to the Franchise provided that approval is granted by City Council for transfer of franchise.
WHEREAS, pursuant to said Purchase Agreement, Assignor is required, as a part of its
capital contribution, to assign the Franchise to Assignee in consideration of a one hundred percent
(100%) equity ownership interest in the form of cash, stock and note payment; and
WHEREAS, Assignor desires to assign the Franchise to Assignee in accordance with the
Partnership Agreement in compliance with Chula Vista Charter Section 1203, Chula Vista
Municipal code Section 5.30.010, and section 6.c. of the Franchise agreement, and Assignee desires
to accept such assignment;
NOW, THEREFORE, in consideration of the mutual promises herein contained, and other
good and valuable consideration, the parties hereto agree as follows:
1) ASSIGNMENT
Assignor hereby assigns to Assignee all of its right, title, and interest in the Franchise, and all of
the rights, privileges and powers therein contained, warranting to Assignee that the same has not
previously been assigned, transferred, or hypothecated in anyway to any other party.
2) CONSIDERATION
In exchange for the Franchise the Assets to be Acquired, Buyer shall pay and deliver to CVC the
consideration established in the Purchase Agreement.
3) ACCEPTANCE
Assignee hereby a.~cepts said aSSignm~nt o~ ~e Franchise, and assumes all of the obligations of (l'x
~~1 U
3) ACCEPTANCE
Assignee hereby accepts said assignment of the Franchise, and assumes all of the obligations of
the Franchise, as set forth in the Purchase Agreement. In special consideration for the consent of
the City Council of the City of Chula Vista, California, to the assignment herein made, Assignee
covenants and agrees to comply with, perform and be bound by each and all of the terms and
conditions imposed by the Franchise, and by the Chula Vista City Charter and the Chula Vista
Municipal Code with respect thereto.
4) FORM AGREEMENT
The subject headings of the paragraphs and subparagraphs of this Agreement are included for the
purposes of convenience only and shall not effect the construction or interpretation of any of its
provisions. This Agreement constitutes the entire agreement between the parties pertaining to the
subject matter contained in it and supersedes all prior or contemporaneous agreements,
representations, and understanding of the parties. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver
of any other provisions, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the parties making the waiver.
5) ATTORNEY'S FEES
Should any legal proceeding by instituted to enforce this Agreement, or any of the provisions
thereof, the prevailing party shall be entitled to, in addition to any other remedy provided by law
or equity, reasonable court costs and attorney's fees as determined by a court of competent
jurisdiction.
6) CALIFORNIA LAW
This Agreement shall be governed by the laws of the State of California applicable to agreements
made and to be executed within California.
Lj-35
fJ
"
IN WITNESS WHEREOF, the parties to this Agreement have duly executed on the day and year
first above written.
Chula Vista Cable, Lid.. a California Limited Partnership
BY:~.l.-.fA".J AZt~~
(Signature)
Barbara Altbaum, General Partner
Barbara Altbaum, Trustee ofthe Altbaum Family Trust
Barbara Altbaum, President of Ultronics, Inc.
~ex
By:
C ~ Lv'''' (S~at "8 ..... l<< co ~
" .) .
Calvin D. Smiley, Sf.
President & CEO
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SIGNATURE PAGE A1JTHORlZING THE AGREEMENT FOR ASSIGNMENT
OF CABLE TELEVISION FRANCmSE
Consent of the City Council of the City of Chula Vista, California, is hereby given to the assignment
and transfer of the franchise rights hereinabove made from Chula Vista Cable, Ltd., a California
Limited Partnership, to NexHorizon Communications, Inc. and NexHorzon Communications, Inc. is
hereby accepted as the Franchisee under Chula Vista Ordinance Number 2230 in place and in stead
of Ultronics, Inc. a California corporation, and its assignee, Chula Vista Cable, Ltd., a California
Limited Partnership.
Dated:
,2008
City of Chula Vista
By:
Cheryl Cox, Mayor
Attest:
, City Clerk
Approved as to Form:
, City Attorney
Dated:
'II'
"
4. ~7...
RESOLUTION NO. 2008-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA CONSENTING TO THE ASSIGNMENT OF
CHULA VISTA CABLE, LTD., FRANCHISE AGREEMENT TO
NEXHORIZON BROADBAND OF SOUTHERN CALIFORNIA,
INC.
WHEREAS, subject to City Council approval, Chula Vista Cable Ltd. ("Chula Vista
Cable") has transferred ownership of its cable operations and infrastructure within the City of
Chula Vista to NexHorizon Broadband of Southern California Inc., (NexHorizon); and
WHEREAS, the City of Chula Vista entered into a Cable Franchise Agreement with
Ultronics, Inc., on November I, 1987; and
WHEREAS, on July 21,1987 the City Council passed a resolution notifying the public of
the Council's intention to hold a public hearing on August 18, 1987 to consider the granting of a
cable franchise agreement to Ultronics Inc; and
WHEREAS, the City approved a request by Ultronics to transfer the Agreement from
Ultronics to a Chula Vista Cable, on May 12, 1989, and that Agreement remains in force today;
and
WHEREAS, Section 6.c. of the Franchise Agreement allows the Grantee to assign the
Franchise, subject to City Council consent; and
WHEREAS, at the request of Chula Vista Cable, the City began negotiations to extend
the Franchise with Chula Vista Cable in 2004; and
WHEREAS, at Council direction staff concluded those negotiations in late 2004, which
included a Franchise extension for an additional ten years through November 30, 2020; and
WHEREAS, due to the death of the founder of the company, and the subsequent re-
organization of the company, Chula Vista Cable did not approach the City to formally process
the Agreement until June of2007; and
WHEREAS, at that time, Chula Vista Cable and NexHorizon approached the City about
assigning the Chula Vista Cable Franchise Agreement to NexHorizon; and
WHEREAS, staff has contacted communities served by NexHorizon to verify their
capacity to provide quality service and checked with the FCC to review any potential complaints;
and
WHEREAS, the record is generally good with some complaints however, the markets
they currently operate in are very small and individual service issues are proportionally far more
significant; and
J:\Attomey\FINAL RESOS\2008\05 20 08\Ultronics Chula Vista Cable Franchise to NexHorizon_doc
//. :J~
Resolution No. 2008-
Page 2
WHEREAS, NexHorizon's commitment to updating the Chula Vista Cable
infrastructure, the quality of their products and service in Chula Vista is strong; and
WHEREAS, NexHorizon has emphasized their commitment to customer service and
understands that Staff will enforce consumer protections in the NexHorizon Agreement that are
equivalent to or better than industry, state and federal standards; and
WHEREAS, NexHorizon has also demonstrated the financial capacity to upgrade
operations and customer service during the transition period and provide additional capital that
will improve the range and quality of services provided to their Chula Vista customers; and
WHEREAS, in connection with seeking the City Council's consent to the assignment,
NexHorizon has satisfied the requirements of Section 6.c. of the Franchise Agreement; and
WHEREAS, specifically, NexHorizon has demonstrated to City staff its financial
responsibility and ability to assume the franchise, and has agreed to comply with the terms of the
Franchise Agreement; and
WHEREAS, the assignment of the Franchise Agreement leaves the business terms of the
Agreement intact, including the Franchise Fee payment, which is based on 5% of the cable
services gross receipts.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby consents to the assignment of Chula Vista Cable, Ltd., Franchise Agreement
to NexHorizon Broadband of Southern California, Inc.
Presented by
Approved as to form by
Michael Meacham
Director of Conservation and
Environmental Services
]\AuorncylFINAL RESOS\1008\05 20 08\Ultronics Chl.lla Vista Cable Franchise to )';e~Horizon.doc
1/'31
L 1ewl 4
e'L:
,
May 20, 2008
Mayor Cheryl Cox and City Council
276 Fourth Avenue
Chula Vista, CA 91910-2631
Re: City Council Agenda Item No.4: Resolution Consenting to the Assignment of Chula Vista
Cable, Ltd., Franchise Agreement to NexHorizon Broadband of Southern California.
Dear Mayor Cox and City Council
On Friday it came to our attention that today's City Council consent agenda contains a Resolution
Consenting to the Assignment of Chula Vista Cable, Ltd., Franchise Agreement to NexHorizon
Broadband of Southern California.
Additionally, Cox Communications has proudly served Chula Vista for decades. As the local integrated
telecommunications provider of voice. video and data, Cox has enjoyed a strong and lasting relationship
with the City of Chula Vista. Along with Cox Communications, Chula Vista customers enjoy a choice in
service providers such as Dish satellite, Direct TV, at&t, and Chula Vista Cable.
We would also like to request the City take careful consideration of ensuring a level playing field and
requirements as new providers enter the market, franchises are extended, or existing agreements transition
to new ownership, in this case NexHorizOll.
Per our franchise agreement with the City, the City has required a much more stringent set of
requirements on Cox and our compliance adds significant additional costs and time to our company
compared to others operating in Chula Vista. By evaluating franchises the City stands to benefit more for
its constituents. An example of a requirement that is uniquely imposed upon Cox by the City is providing
cable modems and internet service at no charge for up to 30 sites to be selected by the City and a physical
connection at no charge limited to a maximum cost of$60,000.
We ask that the City ensure a level playing field for all in the market by requiring NexHorizon and any
others be held to the same obligations. We urge the City to take careful consideration enforcing
obligations fairly upon all providers and our competitors. By exempting any current and incoming
providers from the same standards the City imposes on Cox is giving them an unfair advantage.
Sincerely,
Sam Attisha
Vice President of Business Development and External Affairs
Cox Communications
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