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RESOLUTION NO. 6505
A RESOLUT10N OF THE CITY COUNCIL OF THE
CITY OF ARCADIA, CALIFORNIA,
CONDITIONALLY AUTHORlZING THE
ASSIGNMENT AND CHANGE OF CONTROL OF A
CABLE TELEVISION FRANCHISE BY CENTURY-
TCI CALIFORNIA, L.P. TO CAC EXCHANGE II, LLC
RECITALS:
A. The City of Arcadia, California ("Franchise Authority") has granted a
cable television franchise for the construction, operation, and maintenance of a
cable television system within the City (the "Franchise") to Century- TCI
California, L.P. ("Franchisee"), which Franchisee is presently controlled by
Adelphia Communications Corporation ("Adelphia"), which is currently in
Chapter I I bankruptcy proceedings; and
B. Pursuant to an asset purchase agreement dated April 20, 2005 between
Adelphia and Comcast Corporation ("Comcast"), an indirect wholly-owned
subsidiary of Comcast will acquire Adelphia's interest in the Franchise (the
"Adelphia Transaction"); and
C. Pursuant to an exchange agreement between Time Warner Cable Inc.
("Time Warner Cable") and Comcast, dated as of April 20, 2005 ("Exchange
Agreement"), Comcast will conclude the asset purchase transaction, whereby
Comcast will cause its indirect wholly-owned subsidiary, Comcast Cable Holdings,
LLC, to assign the Franchise to CAC Exchange II, LLC (the "New Franchisee")
and the New Franchisee will become an indirect subsidiary of, and will do business
as, Time Warner Cable (which transaction shall hereinafter be referred to as the
"Exchange"); and
D. On June 16, 2005, the Franchise Authority received from Comcast
Cable Holdings, LLC and Time Warner Cable Inc., an application for the
assignment of the existing Franchise from Franchisee to the New Franchisee
through the Ade1phia Transaction and the Exchange. This application included
FCC Form 394 titled "Application for Franchise Authority Consent to Assignment
or Transfer of Control of Cable Television Franchise." Supplemental information
was provided to the Franchise Authority by Comcast Cable Holdings, LLC and
Time Warner Cable Inc.; and
E. In accordance with Section 8 of City of Arcadia Ordinance No. 2206
(the "Telecommunications Ordinance"), the Franchise Authority has the right to
review and to approve the financial, technical, and legal qualifications of a
proposed transferee in connection with a proposed assignment of the Franchise;
and
F. The Franchise Authority has reviewed the documentation that
accompanied FCC Form 394 and, based upon the representations set forth in that
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documentation, has concluded that the proposed New Franchisee has the requisite
financial, technical, and legal qualifications to adequately perform, or to ensure the
performance of, all obligations required of Adelphia under the Franchise, and that
the New Franchisee will be bound by all existing terms, conditions, and obligations
of the Franchise as it currently exists or as it may be modified or superseded by the
parties prior to the closing of the Adelphia Transaction and the Exchange.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND
RESOL VE AS FOLLOWS:
SECTION I.
In accordance with Section 8 of the Telecommunications
Ordinance, the Franchise Authority consents to and approves the proposed
assignment and change of control of the Franchise by Century- TCI Cali fornia,
L.P., through Comcast Cable Holdings, LLC, to CAC Exchange II, LLC, which,
upon the closing of the asset purchase transaction, will be an indirect
wholly-owned subsidiary of Time Warner Cable Inc., and will be qualified to
conduct business as a limited liability company in the State of California.
SECTION 2. The authorization, consent and approval of the Franchise
Authority to the proposed assignment is hereby expressly conditioned upon, and
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made contingent upon, compliance with the following requirements within sixty
(60) days following the closing of both the Adelphia Transaction and Exchange:
(a) Adelphia and the New Franchisee will execute and file in the office of
the City Clerk an "Assignment and Assumption Agreement" in the form attached
to this Resolution as Exhibit "A", and incorporated by reference herein. The
Mayor is authorized to execute that document and thereby evidence the written
consent of the Franchise Authority to the assignment and assumption of all rights
and obligations under the Franchise.
(b) An original or conformed copy of the written instrument evidencing
the closing of the Adelphia Transaction and the Exchange must be filed in the
office of the City Clerk.
(c) Provision of written report to the City Manager documenting the
following:
(i) Staffing and technical measures have been implemented to
ensure adequate telephone call center perfom1ance, reporting
capabilities, and transition programs to provide service as Time
Warner Cable, including the capability to bring current call
center performance into compliance with the Franchise tern1s;
(ii) Staffing and technical measures have been implemented to
ensure adequate public, educational, or governmental (PEG)
Access channel allocation, staffing and service provision in
accordance with the Franchise;
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(iii) All necessary insurance policies, endorsements or certificates,
as required by the Franchise, including, without limitation,
applicable "additional insured" language shall been provided to
the City Manager or his designee;
(iv) All necessary security (cash deposit, surety fund, construction
bond, and/or any other security as approved by the City
Manager or designee) provisions of the Franchise shall have
been provided to the City Manager or his designee;
(v) That the New Franchisee shall have established the location of
franchise financial records and other cable system records
pertaining to Franchise fee reviews as Time Warner
Controller's Office, 959 South Coast Drive, Suite 300, Costa
Mesa CA 92626, or that the New Franchisee shall make
available all such records available for inspection and
photocopying at Arcadia City Hall; and
(vi) The New Franchisee's program for providing notice to
subscribers of, and implementing, account transition, including,
without limitation, e-mail account transitioning and domain
name changes.
(d) The New Franchisee shall have caused to be paid to the Franchise
Authority all processing charges required by law for the review and consideration
of the proposed transfer.
SECTION 3.
If the closing of the AdeIphia Transaction and the
Exchange shall not have occurred within one hundred eighty (180) days following
the date of this Resolution (or such other date as may be agreed upon by the City
Manager), or if anyone or more of the conditions set forth above Section 2 of this
Resolution is or are not satisfied within the period of time specified in that Section,
then the authorization and consent of the Franchise Authority to the proposed
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assignment as provided for in this Resolution shall be deemed of no force or effect,
shall be treated as null and void without further action by the Franchise Authority,
and the FCC Form 394 application will be deemed denied in all respects, as of the
date of adoption of this Resolution, In such event, the City Manager is authorized
and directed to give written notice to all affected parties of such effect, which will
be deemed to be without prejudice to the right of any parties to submit a new FCC
Form 394 to the Franchise Authority if required by the Franchise or local
ordinance.
SECTION 4.
The City Clerk is directed to transmit a certified copy of
this Resolution to the following persons:
If to New Franchisee:
Mr. Roger Keating, President
Los Angeles Division
Time Warner Cable Inc.
959 South Coast Drive, Suite 300
Costa Mesa, CA 92626
If to Adelphia:
Brad M. Sonnenberg, Esq.
Executive Vice President,
General Counsel and Secretary
AdeIphia Conmmnications Corporation
5619 DTC Parkway
Denver, CO 80111
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If to Comcast:
Comcast Cable Holdings, LLC
1500 Market Street
Philadelphia, PA 19102
SECTION 5.
The City Clerk shall certify to the adoption of this
Resolution.
Passed, approved and adopted this 6th day of December
ATTEST:
o fJ-A ~
City Clerk
APPROVED AS TO FORM:
~\["'- p, I~
Stephen P. Deitsch
City Attorney
,2005.
May of the City of Arcadia
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES) SS:
CITY OF ARCADIA )
I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies
that the foregoing Resolution No. 6505 was passed and adopted by the City Council of
the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular
meeting of said Council held on the 6th day of December, 2005 and that said
Resolution was adopted by the following vote, to wit:
A YES: Council Member Chandler, Kovacic, Marshall, Segal and Wuo
NOES: None
ABSENT: None
!~~
City Clerk of the City of Arcadia
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EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND
GUARANTEE OF ASSIGNEE'S OBLIGATIONS
(CABLE TELEVISION FRANCHISE AGREEMENT)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT
("Agreement") is entered into this day of , 200
between Century- TCI California, L.P., a California limited partnership
("Assignor"), CAC Exchange II, LLC, a Delaware limited liability company
("Assignee"), and the City of Arcadia, a California municipal corporation
("Franchise Authority").
RECITALS:
A. Assignor is the authorized holder of a franchise that authorizes
the construction, operation, and maintenance of a cable television system within
the City of Arcadia, California.
B. Subject to the prior consent of the Franchise Authority as set
forth more fully in Resolution No. , adopted December 6, 2005 (the
"Consent Resolution"), Assignor desires to assign to Assignee, and Assignee
desires to assume, effective as of the closing of the asset purchase transaction
described in the FCC Form 394 as filed with the Franchise Authority on June 14,
2005 (the "Closing"), all rights, duties, and obligations under the cable television
franchise agreement between the Franchise Authority and the Assignor ("Franchise
Agreement") as it currently exists, or as it may be modified or superseded by the
parties prior to the Closing.
THE PARTIES AGREE AS FOLLOWS:
I. Effective as of the Closing, Assignor assigns and transfers to
Assignee all of Assignor's rights, duties, and obligations under the Franchise
Agreement.
2. Effective as of, and contingent upon, the occurrence of the
Closing, Assignee covenants and agrees with Assignor and with the Franchise
Authority to assume all rights and to assume and perform all duties and obligations
of the Assignor under the Franchise Agreement. The Franchise Authority reserves
any and all rights with respect to any non-compliance issues that may exist prior to
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the Closing, and Assignee reserves any and all rights and defenses with respect to
any such non-compliance issues.
3. Franchise Authority consents to the assignment and transfer by
Assignor to Assignee of all rights, duties, and obligations specified in the
Franchise Agreement, contingent upon the execution by Time Warner Cable Inc.,
as guarantor, of the "Guarantee of Assignee's Obligations", attached as Schedule I
to this Agreement and incorporated by reference herein.
4. This Agreement will become operative and enforceable upon
the closing of the asset purchase transaction described in the FCC Form 394 as
filed with the Franchise Authority on June 14,2005.
TO EFFECTUATE THIS AGREEMENT, the parties have caused this
Assignment and Assumption Agreement to be executed by their duly authorized
representati ves as of the date set forth below the authorized signature.
"ASSIGNOR"
CENTURY-TCI CALIFORNIA, L.P.,
A Delaware limited partnership
By:
(authorized officer)
Title:
APPROVED AS TO FORM:
Date:
Legal Counsel
[SIGNATURES CONTINUE ON NEXT PAGE]
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APPROVED AS TO FORM:
Legal Counsel
APPROVED AS TO FORM:
City Attorney
ATTEST:
City Clerk
"ASSIGNEE"
CAC EXCHANGE II, LLC, a
Delaware limited liability company
By:
(Authorized Officer)
Title:
Date:
"FRANCHISE AUTHORITY"
CITY OF ARCADIA
By:
Mayor
Date:
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SCHEDULE 1
to
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND
GUARANTEE OF ASSIGNEE'S OBLIGATIONS
GUARANTEE
GUARANTEE, dated as of
CABLE INC., a Delaware corporation
Arcadia, California, ("Beneficiary").
, 2005, made by TIME WARNER
("Guarantor"), in favor of the City of
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and to induce Beneficiary to timely consent to the transfer
of the cable television franchise issued by Beneficiary and currently held by
Century- TCI California, L.P. (the "Franchise") to CAC Exchange 11, LLC
("Transferee") in accordance with the Federal Communications Commission Forlll
394 filed by Transferee, Guarantor agrees as follows:
I. Interpretive Provisions.
A. The words "hereof," "herein" and "hereunder" and words of similar
import, when used in this Guarantee, shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and
section and paragraph references are to this Guarantee unless
otherwise speci fied.
B. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
II. Guarantee.
A. Effective upon the close of the Exchange Agreement, Guarantor
unconditionally and irrevocably guarantees to Beneficiary the timely
and complete perforn1ance of all Transferee obligations under the
Franchise (the "Guaranteed Obligations"). The Guarantee is an
irrevocable, absolute, continuing guarantee of payment and
performance, and not a guarantee of collection. If Transferee fails to
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pay any of its monetary Guaranteed Obligations in full when due in
accordance with the terms of the Franchise, Guarantor will promptly
pay the same to Beneficiary or procure payment of same to
Beneficiary. Anything herein to the contrary notwithstanding,
Guarantor shall be entitled to assert as a defense hereunder any
defense that is or would be available to Transferee under the
Franchise or otherwise.
B. This Guarantee shall remain in full force and effect until the earliest to
occur of: (i) performance in full of all Guaranteed Obligations at a
time when no additional Guaranteed Obligations remain outstanding
or will accrue to Transferee under the Franchise; and (ii) subject to
any required consent of the Beneficiary, any direct or indirect transfer
of the Franchise from Transferee to (or direct or indirect acquisition of
Transferee or any successor thereto by (whether pursuant to a sale of
assets or stock or other equity interests, merger or otherwise)) any
other person or entity a majority of whose equity and voting interests
are not beneficially owned and controlled, directly or indirectly, by
Guarantor. Upon termination of this Guarantee in accordance with this
Section Il(B), all contingent liability of Guarantor in respect hereof
shall cease, and Guarantor shall remain liable solely for Guaranteed
Obligations accrued prior to the date of such termination.
III. Waiver. Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Guaranteed Obligations and notice of or proof of
reliance by Beneficiary upon this Guarantee or acceptance of this Guarantee.
Guarantor waives diligence, presentment, protest and demand for payment to
Transferee or Guarantor with respect to the Guaranteed Obligations; provided,
however, that Guarantor shall be furnished with a copy of any notice of or relating
to default under the Franchise to which Transferee is entitled or which is served
upon Transferee at the same time such notice is sent to or served upon Transferee.
IV. Representations and Warranties. Each of Guarantor and Beneficiary
represents and warrants that: (i) the execution, delivery and perfomlance by it of
this Guarantee are within its corporate, limited liability company or other powers,
have been duly authorized by all necessary corporate, limited liability company or
other action, and do not contravene any law, order, decree or other governmental
restriction binding on or affecting it; and (ii) no authorization or approval or other
action by, and no notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and perfornlance by it of this
Guarantee, except as may have been obtained or made, other than, in the case of
clauses (i) and (ii), contraventions or lack of authorization, approval, notice, filing
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or other action that would not, individually or in the aggregate, impair or delay in
any material respect such party's ability to perform its obligations hereunder.
V. Binding Effect. This Guarantee, when executed and delivered by
Beneficiary, will constitute a valid and legally binding obligation of Guarantor,
enforceable against it in accordance with its terms, except as such enforcement
may be limited by applicable bankruptcy, insolvency or other similar laws
applicable to creditors' rights generally and by equitable principles (whether
enforcement is sought in equity or at law).
VI. Notices. All notices, requests, demands, approvals, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly given and made if served by personal delivery upon the party for whom it is
intended or delivered by registered or certified mail, return receipt requested, or if
sent by Telecopier, provided that the telecopy is promptly confirmed by telephone
confirmation thereof, to the party at the address set forth below, or such other
address as may be designated in writing hereafter, in the same manner, by such
party:
To Guarantor and Transferee:
Time Warner Cable Inc.
290 Harbor Drive
Stamford, CT 06902-6732
Telephone: (203) 328-0631
Telecopy: (203) 328-4094
Attention: General Counsel
To Beneficiary:
City of Arcadia
240 West Huntington Drive
Arcadia, California 91006
Telephone:
Telecopy:
Attention: City Manager
VII. Integration. This Guarantee represents the agreement of Guarantor with
respect to the subject matter hereof and there are no promises or representations by
Guarantor or Beneficiary relative to the subject matter hereof other than those
expressly set forth herein.
VIlI. Amendments in Writing. None of the terms or provisions of this
Guarantee may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by Guarantor and Beneficiary, provided that any
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right, power or privilege of Beneficiary ansmg under this Guarantee may be
waived by Beneficiary in a letter or agreement executed by Beneficiary.
IX. Section Headings. The section headings used in this Guaraniee are for
convenience of reference only and are not to affect the construction hereof or be
taken into consideration in the interpretation hereof.
X. No Assignment or Benefit to Third Parties. This Agreement shall not be
assigned by Guarantor, in whole or in part, whether voluntarily or otherwise,
without the prior written consent of the Beneficiary. This Agreement shall not be
assigned by Beneficiary, in whole or in part, whether voluntarily or otherwise,
without the prior written consent of the Guarantor. This Agreement shall be
binding upon and inure to the benefit of the parties hereto. Nothing in this
Agreement, express or implied, is intended to confer upon anyone other than
Guarantor and Beneficiary and their respective permitted assigns, any rights or
remedies under or by reason of this Guarantee.
XI. Expenses. All costs and expenses incurred in connection with this
Guarantee and the transactions contemplated hereby shall be borne by the party
incurring such costs and expenses.
XII. Counterparts. This Guarantee may be executed by Guarantor and
Beneficiary on separate counterparts (including by facsimile transmission), and all
of said counterparts taken together shall be deemed to constitute one and the same
instrument.
XIlI. Governing Law. This Guarantee shall be governed by and construed and
interpreted in accordance with the laws of the state of California without regard to
principles of conflicts of law. Any legal action or proceeding concerning this
Guarantee shall be filed and prosecuted in the appropriate California court in the
County of Los Angeles, California.
XIV. Waiver of Jury Trial. Each party hereto hereby irrevocably and
unconditionally waives trial by jury in any legal action or proceeding relating to
this guarantee and for any counterclaim therein.
XV. Attorneys Fees. In the event that any action or proceeding is commenced to
regarding any term of this Guarantee, the prevailing party in such action or
proceeding, in addition to all other relief to which it may be entitled, shall be
entitled to recover from the other party the prevailing party's costs of suit and
reasonable attorneys' fees. The prevailing party shall be as determined by the court
in accordance with California Code of Civil Procedure Section 1032. The
attorney's costs and expert fees recoverable pursuant to this section include,
without limitation, attorney's costs and expert fees incurred on appeal and those
incurred in enforcing any judgment rendered. Attorney's costs and fees may be
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recovered as an element of costs in the underlying action or proceeding or in a
separate recovery action.
TO EFFECTUATE THIS GUARANTEE, each of the undersigned
has caused this Guarantee to be duly executed and delivered by its duly authorized
officer on the date set forth below the authorized signature.
"GUARANTOR"
TIME WARNER CABLE INC.
By:
Name:
Title:
Date:
"BENEFICIARY"
CITY OF ARCADIA
By:
Name:
Title:
Date:
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