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HomeMy WebLinkAbout99-27 (3) Resolution No. 99-27 RESOLUTION OF THE CITY OF ELGIN, ILLINOIS, CONSENTING TO THE TRANSFER OF CONTROL OF THE CABLE TELEVISION FRANCHISE& FROM JON&6 INTERCA E INC. TO- TCI lbLINOIS HOLDINCE LP WHEREAS, Jones Cable TV Fund 15-A Ltd. (the "Franchisee" ) is the holder of a franchise (the "Franchise" ) to provide cable television service in the City of Elgin (the "Municipality" ) pursuant to a franchise agreement between the Municipality, dated December 10, 1969 (together with any amendments the "Franchise Agreement" ) and the Municipality' s Ordinance No. S-935 (the "Cable Ordinance" ) . The Franchise Agreement and the Cable Ordinance are collectively referred to as the "Franchise Documents" ; and WHEREAS, the Franchisee and TCI of West Virginia, Inc . together with Franchisee ( "Transfer Parties" ) jointly submitted to the Municipality their application on Federal Communications Commission ( "FCC" ) Form 394 , dated September 30, 1998 (the "Application" ) , requesting that the Municipality approve the transfer of control of the Franchise from Franchisee to TCI as more fully described therein (the "Transfer of Control" ) ; and WHEREAS, pursuant to the information requests of the Municipality, the Transfer Parties supplemented the Application with additional documents and information; and WHEREAS, the Transfer Parties have made various representations in the Application and supplemental information thereto including that the Transfer, which will result in the transfer of the Franchise from the Franchisee to TCI , is not expected to result in an increase in cable television service rates or reduce the quality of cable television customer service of the quality of cable television service in the Municipality; and WHEREAS, the Municipality, and the Transfer Parties have negotiated an agreement regarding certain conditions of this consent (the "Transfer Agreement" ) , a copy of which is attached as Exhibit A and is incorporated by reference. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that in reliance upon the representations and information submitted in the Application and supplemental information thereto and subject to the conditions set forth in the transfer Agreement, the Municipality hereby consents to the Transfer of the Franchise from Franchisee to TCI as described in the Application and supplemental information thereto. l BE IT FURTHER RESOLVED that the Municipality' s consent is subject to the Transfer Parties executing and delivering to the Municipality by no later than 30 days after closing which is scheduled to occur during the first quarter of 1999 a Transfer Agreement in the form of the attached Exhibit A. If the Transfer Parties fail to do so, the Municipality' s consent to the Transfer shall be null and void and the Application shall be denied. BE IT FURTHER RESOLVED that, by consent, the Municipality does not agree to any renewal or extension of the Franchise. Any pending or future renewal or extension of the Franchise shall be subject to applicable federal, state and local laws, the Franchise Documents, and the Transfer Agreement. BE IT FURTHER RESOLVED that Kevin Kelly, Mayor, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute and deliver the Transfer Agreement in substantially the form of the attached Exhibit A, together with such mutually agreed upon changes as the Mayor may approve as necessary or desirable, such approval to be conclusively evidenced by the execution of the Transfer Agreement. s/ Robert Gilliam Robert Gilliam, Mayor Pro Tem Presented: January 27 , 1999 Adopted: January 27 , 1999 Vote: Yeas 5 Nays 0 Attest : s/ Dolonna Mecum Dolonna Mecum, City Clerk ExhiotA TRANSFER AGREEMENT Agreement among the City of Elgin, Illinois (the "Municipality") , Cable TV Fund 15-A, Ltd. (the "Franchisee") , ("Jerca ) , and TCI of West Virginia, Inc. , ("TCI") . Recitals A. The Franchisee Is the holder of a franchise to provide cable service in the Municipality (the 'Franchise'), subject to the provisions of a franchise agreement between the Municipality and the Franchisee dated December 10, 1969 ( n-18; with any amendments, the "Franchise Agreemenr) and subject to Ordinance No..S`935 of the Municipality (the'Cable Ordinance"). The Franchise Agreement and the Cable Ordinance are collectively referred to as the 'Franchise Documents." B. The Franchisee and TCI jandy submitted,to the Municipality their application on Federal Communications Commission ('FCC') Form 394, dated September 30 1998, (the 'Application') requesting that the Municipality approve the transfer of control of the Franchise from Franchisee to TCI (the "Transfer). The Franchiser and TCI (collectively, the'Transfer Parties') desire that the Municipality grant that approval. C. Pursuant to the request of the Municipality, the Transfer Parties have provided supplemental information In support of the Application, including representations that the Transfer is not expected to have any effect an cable television service, rates or reduce the quality of customer service or cable service in the Municipality. D. Pursuant to the proposed Transfer as described in the Application and We supplemental informatlon thereto, TCI will become the holder of the Franchise after the dosing of the Transfer transaction. E. The Municipality has enacted or will enact a Resolution granting its approval of the Transfer of Control subject to the condition, inter alia, that the parties enter into this Transfer Agreement. Agreement NOW THEREFORE, the Municipality and the Transfer Parties agree as follows: ARTICLE I. INCORPORATION OF RECITALS. 1.1 Part of Agreement. The above Recitals are incorporated into and constitute a part of this Transfer AgreemenL ARTICLE II. ACCEPTANCE OF FRANCHISE OBLIGATIONS. 21 Acceptance. TCI hereby accepts, acknowledges, and agrees to be bound by all of the lawful commitments, duties and obligations, present, continuing and future, of the Franchisee set out in the Franchise Documents. 2.2 Compliance with Franchise. TCI agrees to fully comply with all lawful terms and conditions set out in the Franchise Documents. ARTICLE III. TRANSFER PARTIES' REPRESENTATIONS. 3.1 Municipality's Reliance On Transfer Parties' Representations. The Transfer Parties adcnowiedge and agree that the Municipality's consent to the Transfer and the resutting transfer of the Franchise is made in reliance on the written representations, documents, and information provided by the Transfer Parties In connection with the Application, all of which are incorporated into this Transfer Agreement by this reference. 3.2 Consent to Transfer Limited to No Material Change. The Transfer Parties acknowledge and agree that: (i) the Municipalitys consent to the Transfer Is conditioned upon there being no material change in the structure of the Transfer of the Franchise from its description as set forth in the Application and supplemental materials provided by the Transfer Parties In connection with the Application or material adverse change in the quality of cable service provided In the Municipality; and (i) any s,ucn change shall make the L4unlopality's consent to Ile Transfer of Control null and void, and lhe request for consent to the Transfer of Control shall be deemed to have been timely denied. ARTICLE IV. ADDITIONAL AGREEMENTS OF THE TRANSFER PARTIES. 4.1 Compliance With Franchise. Each of the Transfer Parties agrees That it will not take any action that would be, or would cause, a violation of any lawful provision of this Transfer Agreement or the Franchise Documents. 4.2 No Waiver. By its consent to the Transfer and execution of this Transfer Agreement, the Municipality waives none of its rights or prospective rights with respect to TCI's compliance with the lawful terms, conditions, requirements and obligations set forth in the Franchise Documents, including without limitation: (a) TCI's Compliance. The Transfer Parties acknowledge and agree that the Municipality shall have the right to compel TO! to comply with all lawful provisions of the Franchise Documents. (b) Renewal of Franchise. The Transfer Parties acknowledge and agree that the Municipality has made no agreement that the Franchise will be renewed or extended; any renewal or extension of the Franchise shall be subject to the review and approval of the Municipality in accordance with applicable federal, state and local laws, the Franchise Documents, and the Transfer AgreernenL (c) Qualifications. The Municipality's consent to the Transfer is made without preudice to, or waiver of, any right of the Municipality to fully investigate and consider TCI's financial, technical and legal qualifications and any other lawful considerations during any pending or future franchise renewal or transfer process. (d) Future Transfers/Assignments. The Transfer Parties acknowledge and agree that, by its consent, the Municipality does not approve of or consent to: (1) any other transfer of control of the Franchisee, (2) any pending or future transfer of the Franchise, or(3) any pending or future assignment or delegation of any of the Franchisee's rights or duties under the Franchise which would be subtect to the consent of the Municipality pursuant to applicable federal, state, or local law, including the Franchise Documents. (e) Past Defaults. The Transfer Parties shalt not contend that the Municipality is barred, by reason of its consent to heTransfer, from considering or raising any lawful dalm based on the Franchisee's past or present failure to comply with any term or condition of the Franchise Documents or any other agreements between the Franchisee and the Municipality or any of it; departments or applicable law, including, without limitation: any unpaid franchise fees due the Municipality from the Franchisee, any unpaid support for public, educational, or governmental access channels, any known and unresolved consumer complaints. any construct}on, security or facility requirements of the Franchise Documents that are unsatisfied, and any unpaid pole rental fees or charges due Municipality or any of its departments. subject to applicable law. (f) Franchisee's Compliance. The Municipality's consent to the Transfer shall in no way be deemed a representation by the Municipality that the Franchisee is in compliance with all of its obligations under the Franchise Documents or any other agreements between the Franchisee and the Municipality or any departments thereof. 4.3 Obligations are not Franchise Fees. The Transfer Parties agree: (1) any payments made by any of the Transfer Parh�es to reimhur3e the Municipality for its costs of considering the Application do not constitute franc i e fees subject to the federal franchise fee limitation; and (ii) not to raise any Bairn or defense to the contrary in any proceeding or forum. 4.4 Sunset In the event the Transfer does not dose, or doses on terms that are in any material respect different from the terms disclosed to the Municipality In the Application or the supplemental information and materials supplied in response to the Municipality's request for additional information, then any Municipality approval of the Transfer of Control shall toe deemed -revoked, and the request for consent to the Transfer shall be deemed to have been timely denied. 1$ . ARTICLE v. MISCELLANEOUS. 5.1 8inding Agreement. This Transfer Agreement shall be binding upan and inure to me benefit of the parties and • their permitted successors and assigns. 5.2 Survival of Warranbee and Representations. The warranties and representations of the Transfer Parties and their indemnification obligations contained in this Transfer Agreement shall survive the dosing of the Transfer transaction. 5.3 Assignment. The rights and obligations of any party under this Transfer Agreement may not be assigned or delegated without the prior written approval of the other parties, which shall not be unreasonably withheld and if such consent is required by the Franchise Documents. 5.4 Waiver. No waiver of any provision of this Transfer Agreement shall be deemed to be a waiver of any other provision of this Transfer Agreement nor shall any waiver be deemed to be a continuing waiver except as otherwise expressly stated in writing by the waiving party. 5.5 Severability. If any provision of this Transfer Agreement shall be held to be unenforceable, the Transfer Agreement shall be construed with the unenforceable provision deleted, and the rights and obligations of the parties shall be construed and enforced accordingty. 5.6 Governing Law. This Transfer Agreement shall be governed by the internal laws(without reference to conflict of laws) of the State of Illinois. 5.7 Drafting. This Transfer Agreement is a product of common negotiation among the parties end shall not be construed against any party on grounds relating to drafting, revision, review or recommendation by any agent or representative of such party. 5.8 Time of the Essence. Time is of the essence to this Transfer Agreement. 5.9 Authority. Each signatory to this Transfer Agreement represent that he or she has the authority to enter into this Transfer Agreement. 5.10 Effective Date. This Transfer Agreement may be executed in multiple counterparts no later than 30 days after the closing of the Transfer transaction and shall be deemed effective as of the closing of the Transfer transaction. Each counterpart shall be deemed an original, but ail separate counterparts shall constitute the same agreement. in making proof of this Transfer Agreement, it shall not be necessary to produce or account for more than one counterpart. Date: 5/(/y J VILLAGEJCITY(TO ,OF ET, By: Kevin Kelly Its Maynr (Name) (Title) Atte t: City Clerk Date: tIILI , 8y: s/ (Name) (Title) • Date: JbJ9f Cable TV Fund 15-A Ltd. B y: Terries ..k kirue,bl<.� 'IG. ) /'� 3 its V I cL.. RxidcLeAkt- (Name) (Title) Dale: c�/,94; 91 TO! of West Virginia, Inc., ;€1•111r17171r1777711417)° By: a . Its CS,d.e✓!f (Name) (Title)