O79~- ~~
.,
~~~~I,~ ~~~,~ ~~PY
ORDINANCE NO. ~ 9
AN ORDINANCE AMENDING ORDINANCE NO. 80-2, AS AMENDED
BY ORDINANCE NO. 12 (OCTOBER 1991) WHICH GRANTED A
CABLE TELEVISION FRANCHISE, GRANTING CONSENT TO THE
ASSIGNMENT AND TRANSFER OF A CABLE TELEVISION SYSTEM
AND FRANCHISE FROM SAMMONS COMMUNICATIONS, INC. TO
MARCUS CABLE ASSOCIATES, L.P.; AND APPROVING AN
ACCEPTANCE AGREEMENT.
WHEREAS, the City has granted a cable television franchise to Sammons
Communications, Inc. ("Sammons") pursuant to [insert identification of the Ordinance(s)]
(collectively the "Franchise"); and
WHEREAS, on April 5, 1995, Sammons as seller and Marcus Cable Associates, L.P.
as buyer ("Marcus") entered into an Asset Purchase Agreement pursuant to which Sammons
agreed to assign and transfer the Franchise and its cable television system in the City to
Marcus; and
WHEREAS, Marcus and Sammons submitted an Application for Franchise Authority
Consent on FCC form 394 providing certain information with respect to the parties and the
proposed transfer; and
WHEREAS, Marcus and Sammons submitted additional information and documents
relating to the transaction and its effect on the provision of cable television service within
the City in response to requests of the City ;and
WHEREAS, the City is relying upon the information and documents submitted by
Marcus and Sammons in acting upon the Application for Franchising Authority Consent; and
WHEREAS, the City intends to consent to the transfer and assignment, subject to
Marcus' acceptance of the terms and conditions set forth herein, having determined that
such consent is in the best interest of and consistent with the public necessity and
convenience of the City;
NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
KENNEDALE:
Section 1. The City does hereby consent to the transfer and assignment of the
Franchise and the cable television system in the City from Sammons to Marcus Cable
Associates, L.P. in the manner proposed, subject to the following:
a. Execution by Marcus of an Acceptance Agreement in the form attached
hereto and incorporated herein as Exhibit 1; and
b. Execution by Marcus Cable Operating Company, L.P., Marcus Cable
Company, L.P., and Marcus Cable Properties, L.P. of an agreement in the
form attached hereto and incorporated herein as Exhibit 1 unconditionally
guaranteeing Marcus' performance of the obligations of the Franchise and the
Acceptance Agreement.
Section 2. Marcus may, at any time and from time to time, assign or grant or
otherwise convey one or more liens or security interests in its assets, including its rights,
obligations and benefits in and to the cable television system and Franchise, to any lender
providing financing to Marcus. Any assignment or transfer by a lender or as a result of a
foreclosure will require the City's consent as provided in the Franchise.
Section 3. To the extent that this ordinance or the attached Acceptance
Agreement modifies any of the terms and conditions of the Franchise, the Franchise is
hereby amended. Except as hereby amended, the provisions of the Franchise shall remain
unchanged.
Section 4. The City Secretary of the City of Kennedale is hereby directed to
publish in the official newspaper of the City of Kennedale, the caption and the effective date
clause of this ordinance for two (2) days as provided in Section 52.011 of the Local
Government Code.
I .'
Section 5. This ordinance shall be in full force and effect at the time provided by
law from and after its passage and written acceptance by Marcus; provided however, that
this ordinance shall expire on March 31, 1996, and shall be of no further force and effect
if the transactions described in the Asset Purchase Agreement between Sammons and
Marcus have not been closed by that date.
PASSED AND APPROVED ON THIS ~. DAY OF SEPTEMBER , 1995.
~~
~~~~
MAYOR
ATTEST:
~~~~ ~~~~
CITY SEC ETARY
EFFECTIVE: SEPTEMBER 14 , 1995
APPROVED AS TO FORM AND LEGALITY:
~1~~
City Attorney
' 4
ACCEPTANCE BY MARCUS OF TERMS AND CONDITIONS TO
TRANSFER OF A CABLE TELEVISION SYSTEM AND FRANCHISE
("ACCEPTANCE AGREEMENT"')
Marcus Cable Associates, L.P. ("Marcus") makes the following agreement for the
purpose of accepting Ordinance No. 7 9 of the City of Kennedale, Texas ("City")
consenting to the transfer of the franchise granted by Ordinance No. 80-2, as amended by
Ordinance No. 12 (October 1991) from Sammons Communications, Inc. to Marcus Cable
Associates, L.P.
Marcus Cable Operating Company, L.P., Marcus Cable Company, L.P., and Marcus
Cable Properties, L.P. join this Agreement for the purpose of guaranteeing Marcus'
performance of the Franchise and this Agreement.
1. The promises, covenants, and conditions contained herein inure to the benefit
of the City and are binding on Marcus.
2. Marcus acknowledges that the transactions described in the Asset Purchase
Agreement dated as of Apri15, 1995, between Marcus Cable Associates, L.P. as buyer and
Sammons Communications, Inc., Sammons of Fort Worth, and other entities as seller
(collectively "Sammons"), and the transfer of the franchise granted by Ordinance No. 80-2,
as amended by Ordinance No. 12 (October 1991) (the "Ordinance" or "Franchise") pursuant
thereto are expressly subordinate to and will not affect the binding nature of the Franchise
and the obligations of the Grantee provided for therein, and that the consent of the City to
the transaction does not constitute a waiver or release of any rights of the City. Marcus
assumes and agrees to perform all of the obligations of the Franchise including any
obligations to make refunds for periods prior to the transfer.
3. Marcus acknowledges that the City has consented to the transaction in reliance
upon the representations, documents and information provided by Marcus and Sammons,
all of which are incorporated herein by reference.
4. Customer Service.
(a) Marcus will comply with the customer service rules of the FCC as
presently in effect, 47 CFR § 76.309. Marcus's compliance shall be measured and enforced
as follows:
(i) For the purpose of such rules "normal business hours" therein
are deemed to be 8:00 AM to 5:00 PM Monday through Friday,
and Saturday 9:00 AM to 1:00 PM.
(ii) Transfer to or answering by a voice mail system (or other
automated response system) does not constitute answering 'by
a customer representative" under § 76.309(c)(ii) or analogous
provisions of such rules.
(iii) Within 20 business days of the close of each calendar quarter
(or monthly, if the City requests same), Marcus will provide the
City with a report in such form as the City and Marcus may
reasonably agree, setting forth on a consistent basis, fairly
applied, Marcus's performance as compared to such standards,
including in particular as compared to the standards for
telephone answer time, busy signals, standard installations,
service interruptions, appointment windows, refunds and credits.
(iv) Such reports shall show and use the telephone calls originating
from within the City if that information is readily available from
the system, and as to installations, service interruptions,
appointment windows, refunds, credits and the like shall show
and use data only for subscribers in the City.
(v) Such reports shall show Marcus's performance including and
excluding any periods of abnormal operating conditions, and if
Marcus contends that any such abnormal conditions occurred
during the reporting period in question, they shall also describe
the nature and extent of such conditions.
(vi) Marcus acknowledges that noncompliance with customer service
standards will harm subscribers and the City and that the extent
of harm will be difficult or impossible to measure. The City
may therefore assess liquidated damages against Marcus for
non-compliance with the preceding customer service standards
as follows: The FCC Rules currently state as to §
76.309(c)(1)(ii) and (iv); and § 76.309(c)(2)(i), (ii), (iii) and (iv)
(collectively "quarterly customer service standards") that the
standards set forth therein "shall be met no less than ninety (90)
percent of the time under normal operating conditions
measured on a quarterly basis."
a. Liquidated damages may be assessed if Marcus does not
meet the ninety (90) percent standard for a given
-2-
subsection (for example, §76.309 (c)(2)(ii)) of the
quarterly customer service standards in a given calendar
quarter as follows.
First Second Third and subsequent
Noncompliance Noncompliance Noncompliance
$0.00 $500.00 $1,000.00
b. The City may collect liquidated damages from any bond
or letter of credit furnished under the Franchise.
(b) In the event of a change in 47 CFR § 76.309 that makes any of the
Federal customer service standards therein less stringent than those in
effect in July, 1995, the City may adopt customer service regulations as
to the subject matter of the portion of the rule that is changed. City
agrees to meet with Marcus on any proposed changes prior to taking
action on them, and to provide Marcus with at least 60 days notice of
such action. Marcus agrees to comply with any such provisions that are
no more stringent than those contained in 47 CFR § 76.309 as in effect
in July, 1995 and to such extent agrees that it is not entitled to recover
the costs of such compliance through external cost treatment or
otherwise.
(c) Marcus acknowledges that under applicable law the City may
unilaterally establish and enforce reasonable customer service
regulations that exceed or are not addressed by the standards
established by the FCC or the standards currently established by the
Franchise.
(d) Marcus will provide at minimum the same quality of customer service
that Sammons is currently providing, but in al] events no less than the
quality of service required by the Franchise, any other applicable City
ordinance and applicable FCC regulation. As evidence of and to assist
in compliance with such commitment, Sammons and Marcus agree as
follows:
1. On an annual basis Marcus will provide the City with historical
expenditure information and staffing levels on customer service
related matters; the customer service standards currently used;
-3-
its materials, if any, on same as used by its customer service
representatives; and its procedures and forms used to measure
compliance with applicable customer service standards.
2. Marcus will provide such other information as the City
reasonably requests relating to customer service matters.
5. Sienal Quality The following shall apply to Marcus' implementation of and
compliance with the rules and regulations relating to cable television technical
standards for signal quality adopted by the FCC in MM Dockets 91-169 and
85-38 on February 13, 1992 and subsequent amendments thereto:
(a) All testing for compliance with the FCC technical standards shall be
done by a person with the necessary expertise and substantial
experience in cable television matters.
(b) Upon request, Marcus shall provide the City with the written report of
such testing.
(c) Marcus shall establish the following procedure for resolving complaints
from subscribers about the quality of the television signal delivered to
them: All complaints shall go initially to the manager of Marcus' local
office. All matters not resolved by the manager shall at Marcus' or the
subscriber's option be referred to City for attempted resolution. All
matters not resolved at that step shall be referred to the FCC for it to
resolve.
(d) Marcus shall annually notify its subscribers of the preceding.
(e) Upon request by the City, Marcus at its expense will test the system in
areas or at subscriber locations specified by City where there are
apparent problems and provide City with the written report of such
testing. If the test shows anon-compliance with such standards,
Marcus will bring the system into compliance with such standards
within 180 days.
6. Prior Defaults. Marcus agrees on behalf of itself and its affiliates that it will
not contend directly or indirectly that any defaults or failures to comply with the franchise
or other matters set forth in 47 USC § 546(c)(1)(A) (Communications Act of 1934, Section
-4-
626(c)(1)(A)) (collectively "defaults") by Sammons occurring prior to the transfer to Marcus
are waived, including but not limited to the following:
(a) The ability of the City to obtain redress for prior defaults, such as
recovery of any underpayment of franchise fees.
(b) The ability of the City to enforce in the future any Franchise terms
which may not have been enforced in the past.
Marcus reserves the right to contend that the transfer and the City's approval thereof
preclude the City from considering defaults that occurred prior to the transfer in connection
with any renewal or non-renewal of the Franchise. The City reserves the right to oppose
such contention.
The City confirms that it has informed Marcus of all defaults or other instances of
noncompliance with the Franchise of which the City Administrator primarily responsible for
cable television matters is aware as of the date hereof (without, however, having conducted
any financial or other audit of performance or compliance).
7. Validit~of Franchise. Marcus accepts and agrees to be bound by the terms
and conditions of the City Charter, the Franchise and all other ordinances applicable to its
operations after the transfer. Marcus does not contend that any provision of the Franchise
is unlawful or unenforceable, nor is it aware of any other ordinance or any provision in the
City Charter which it contends is unlawful or unenforceable. The City acknowledges that
the Franchise is in full force and effect.
8. Service and Eq_uinment for Public Facilities.
(a) Marcus will continue to provide the same installation and service
without charge to public facilities as Sammons is providing at the
present time, but in all events no less than is required by the Franchise
or any other applicable city ordinance.
(b) In addition, at the City's request Marcus will provide to the public
facilities identified in the Franchise or other applicable city ordinance
the highest level of installation and service without charge as it
provides to any other community in the Fort Worth area.
(c) If any service or equipment for public facilities provided pursuant to
subsections (a) and (b) above exceeds the requirements of the
-5-
Franchise or other applicable city ordinance, Marcus will not pass
through the costs as so-called "external costs" or as new franchise
requirements, except that Marcus may pass through the cost of such
services under subsection (b) above that exceeds the requirements of
the franchise or other applicable city ordinance to the extent that cost
exceeds $500 per year.
9. EEO Matters.
Marcus agrees to faithfully adhere to all applicable federal, state and city laws,
rules and regulations relating to non-discrimination, equal employment and affirmative
action.
10. Access to Records. The records and reports of the franchise grantee which
are to be submitted to the City or otherwise made available for the City (such as for
inspection by the City) pursuant to the Franchise or other ordinance or charter provisions
of the City shall include records maintained by Marcus Cable Operating Company, L.P.,
Marcus Cable Company, L.P., Marcus Cable Properties, L.P., and their affiliates to the
extent necessary for the City to discharge its responsibilities under the Franchise, FCC rules
or state or local law, or to insure compliance with the Franchise or this Agreement.
11. Franchise Requirement.
(a) Marcus will give the City 60 days notice in writing prior to allowing any
telecommunications entity other than Marcus to use or lease its
facilities (other than towers) in the City or capacity thereon or to
amending any agreement with such an entity. No such arrangements
or uses are presently in existence except as have been disclosed.
"Telecommunications entity" means any entity subject to the jurisdiction
of or regulated by the Federal Communications Commission (such as
under the Communications Act of 1934 as amended) or the Texas
Public Utility Commission or their successors, including telephone,
alternative access and cable companies. Marcus will provide the City
with such documents relating to the foregoing as the City may
reasonably request, including copies of the agreements.
(b) Marcus will give the City 60 days notice in writing prior to providing
telecommunications services within the City or making its facilities
(other than towers) available to others for that purpose.
"Telecommunications services" means conventional telephone service,
-6-
such as switched local exchange service; and non-switched services,
such as alternative access service which connect user locations and
connect users to long distance companies.
(c) Nothing herein shall expand or modify any restrictions or limitations
under the Franchise or applicable law on use for telecommunication
purposes of the facilities being acquired by Marcus.
12. Transaction Transparent to Rates. Marcus acknowledges that the transfer, the
consent process, the City's action granting consent, and this Acceptance Agreement do not
provide any basis for increasing the amounts paid by subscribers through cost pass-through
as so-called "external costs" or as new franchise requirements and the consent process,
action, and this agreement do not provide any basis for increasing the amounts paid by
subscribers in any other manner.
13. Other Matters.
(a) In the event of any conflict between the terms of this Acceptance
Agreement and the Franchise or any City Ordinance, that provision
which provides the greatest benefit to the City, in the opinion of the
City Council, shall prevail.
(b) Marcus will join the City in obtaining from the FCC any waivers from
time to time necessary to effectuate the provisions of this Acceptance
Agreement.
(c) If the transfer of the Franchise to Marcus Cable Associates, L.P., is not
completed on or before March 31, 1996, then at the City's option prior
to the transfer occurring, this agreement and the City's consent to
transfer shall become null and void. Such option may be exercised
prior to the transfer occurring by the City giving written notice to
Marcus and Sammons at the addresses designated in the Asset
Purchase Agreement dated as of April 5, 1995.
(d) Marcus will cause the City to be reimbursed, by Sammons or otherwise,
for its reasonable expenses in connection with the consent process
including publication costs and fees of consultants and attorneys. Such
reimbursement shall not exceed the aggregate amount of $125,000 plus
publication costs for the City and the other municipalities which have
acted with the City in connection with the consent process.
-7-
(e) The term "affiliate" means any individual, partnership, association, joint
stock company, trust, corporation, or other person or entity who owns
or controls, or is owned or controlled by, or is under common
ownership or control with the entity in question.
(f) Venue of any suit under or arising out of this Agreement shall be
exclusively in Tarrant County, Texas or in the United States District
Court for the Northern District of Texas. This Agreement shall be
construed in accordance with the laws of the State of Texas.
14. State-of-the-Art System. The City has made Marcus aware that it believes
Sammons has not complied with "state-of-the-art" requirements of the Franchise, including
requirements for "highest" standards. The parties have not addressed this issue in
connection with the application for approval of the transfer. All such matters may be raised
and decided in the future. Marcus agrees that the City has not waived any claims and rights
it may have under this provision by failing to pursue them in the transfer approval process.
15. Marcus has informed the City's financial consultant, KFA Services, of the
terms of commitments it has received from equity investors and lenders for financing its
acquisition of the Sammons systems. KFA Services' report of August 4, 1995, is based in
part on this information. Marcus acknowledges that the City is relying on that report in
acting on the application for approval of the transfer. Marcus agrees to inform the City's
financial consultant of any material differences between its final financing arrangements and
those disclosed in the approval process. Marcus further agrees that the City may withdraw
its approval and reconsider the application if any such differences would have a material
adverse effect on Marcus or the subscribers.
Marcus Cable Associates, L.P.
Dated: November { , 1995 By: ~~«.._:-~~d ~ ~~~~~
Name: Daniel J. Wilson
Title: Vice President of
Marcus Cable Properties, Inc.,
the ultimate general partner
-8-
.w
Marcus Cable Operating Company, L.P., Marcus Cable Company, L.P., and Marcus
Cable Properties, L.P., hereby unconditionally guarantee performance of the obligations of
the Franchise and of this Acceptance Agreement by Marcus Cable Associates, L.P.
Marcus Cable Operating Company, L.P. *
r~~
Dated: November 1995 By: i~ ~ ;~..~~-~ :` ~:~
Marcus Cable Company, L.P
Dated: November ~ 19 9 5 By: .~° ~~~1 ~ ~~-~- -~
Marcus Cable Pronpe\rties, L.P.
Dated: November ( 19 9 5 By: ~ cA~ ~ . v ~~1 ~ ~~
* Name: Daniel J. Wilson
Title: Vice President of
Marcus Cable Properties, Inc.,
the ultimate general partner
-9-
B & B Publishing, Inc.
833 East Enon
P.O. Box 40230
Everman, TX 76140-0230
Phone (817) 478-4661
AFFIDAVIT OF PUBLICATION
STATE OF TEXAS:
COUNTY OF TARRANT:
CITY OF KENNEDALE
Publishers Of:
EYExnsAN TIMES
KENNEDALE NEWS
FoxEST Hn.i. NEws
SOUTH COUNTY NEWS
BEFORE ME, the undersigned authority, on this day personally appeared JENNIFER CATHEY
who having been duly sworn, says upon her oath:
That she is the Circulation Manager of the newspapers for B&B PUBLISHING, INC.
which are weekly newspapers published in Tarrant County, Texas with a general
circulation in the cities of Everman, Forest Hill, Kennedale, and south Tarrant County
and that a copy of:
Ordinance #79
which is attached to this affidavit, was published in said newspapers on the
following date(s): to wit
SEPTEMBER 21, 1995
EXECUTED THIS, THE 3RD, DAY OF OCTOBER, 19~95Q
~ ,~k.JZ
JENNIFER CATHEY
SUBSCRIBED AND SWORN TO BEFORE ME THIS, THE 3RD, DAY OF OCTOBER, 1995
~, ,
,' OHN EDD BLESSING ~~
,:Fitr'~° t aoHN euo B~ESSir~c NOTARY PUBLIC
": ": MY COMMISSiOtJ EXPIRES
`y?~~•.,• ~~ July 10, ~sa~ TEXAS
. y, ~,.,