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S-933 - 04/13/1999 - CABLE TV - Ordinances ORDINANCE 99-AG-CB-EX1-S-933 AN ORDINANCE OF THE VILLAGE OF OAK BROOK, ILLINOIS CONSENTING TO THE TRANSFER OF CONTROL OF THE CABLE TELEVISION FRANCHISEE FROM MEDIAONE OF NORTHERN ILLINOIS,INC. TO TCI TKR OF SOUTH DADE, INC. WHEREAS, by Ordinance S-607,the Village of Oak Brook("Village")granted a franchise to Continental Cablevision of Cook County, Inc.to provide cable television services in the Village, pursuant to a franchise agreement(the"Franchise Agreement")dated May 26, 1987, together with any amendments. The Franchise Agreement and Cable Ordinance are collectively referred to as the "Franchise Documents";and WHEREAS, by Ordinance 96-CB-S-851, the Village approved the transfer of control and merger of Continental Cablevision, Inc. (the parent of Continental Cablevision of Cook County, Inc.)and U.S. West and the subsequent transfer by U.S.West to MediaOne of North America, Inc. (the"Franchisee")a wholly-owned subsidiary of U.S.West; and WHEREAS,the Franchisee and TCI TKR of South Dade, Inc. ("TCI")("Transfer Parties")jointly submitted to the Village their application on Federal Communications Commission ("FCC') Form 394, (the "Application"), requesting that the Village approve the transfer of the Franchise from Franchisee to TCI as more fully described herein (the"Transfer"); and WHEREAS, pursuant to the information requests of the Village,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 or to an Affiliate ("Affiliate"is an entity which is a cable operator and which is a direct or indirect subsidiary of Tele-Communications, Inc. and of AT&T) is not expected to result in an increase in cable television service rates or reduce the quality of cable television customer service or the quality of cable television service in the Village; and WHEREAS,the Village 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 ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS, ,Section 1, 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 Village hereby consents to the Transfer of the Franchise from Franchisee to TCI as described in the Application and supplemental information thereto, provided however,that TCI shall notify the Village in advance of the closing of the Transfer if MediaOne will transfer the Franchise to a TCI Affiliate instead of TCI; Ordinance 99-AG-CB-EX1-S-933 Cable Television Franchise Transfer of Control MediaOne to TCI TKR, Page 2 Section 2: That the Village's consent is subject to the Transfer Parties executing and delivering to the Village by no later than 60 days after closing a Transfer Agreement in the form of the attached Exhibit A. If the Transfer Parties fail to do so,the Village's consent to the Transfer shall be null and void and the application shall be denied; Section 3: That, by this consent,the Village 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; Section 4: That the Village President is hereby authorized and directed to execute and deliver the Transfer Agreement in substantially the form of the attached Exhibit A. PASSED THIS 13th day of April, 1999. Ayes: Trustees Caleel, Kenny, McInerney, Savino and Shumate Nays: None Absent: Trustee Bartecki Abstain: None APPROVED THIS 13th day of April, 1999. Village President PV CI Clerk ,Rp ved as to Form: Village Attorney Published: Date Paper Not Published: XX EXHIBIT A TRANSFER AGREEMENT Agreement among the Village of Oak Brook, Illinois(the"Village"),TCI TKR of South Dade, Inc. ("TCI")and MediaOne Of Northern Illinois, Inc. (the"Franchisee") Recitals A. The Franchisee is the holder of a franchise to provide cable service in the Village(the "Franchise"),subject to the provisions of a franchise agreement between the Village and the Franchisee dated May 26, 1987 (together with any amendments,the"Franchise Agreement")and subject to Ordinance S-607 of the Village(the"Cable Ordinance"). The Franchise Agreement and the Cable Ordinance are collectively referred to as the"Franchise Documents." B. The Franchisee and TCI jointly submitted to the Village their application on Federal Communications Commission ("FCC") Form 394, (the"Application")requesting that the Village approve the transfer of the Franchise from Franchisee to TCI (the"Transfer"). The Franchisee and TCI (collectively, the"Transfer Parties")desire that the Village grant that approval. C. Pursuant to the request of the Village,the Transfer Parties have provided supplemental information in support of the application, including representations that the Transfer is not expected to have any effect on cable television service, rates or reduce the quality of customer service or cable service in the Village. D. Pursuant to the proposed Transfer as described in the Application and the supplemental information thereto, TCI will become the holder of the Franchise after the closing of the Transfer transaction. E. The Village has enacted or will enact an Ordinance granting its approval of the Transfer of Control subject to the condition, inter Bl�ia,that the parties enter into this Transfer Agreement. Agreement NOW,THEREFORE,the Village 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 Agreement. ARTICLE U. ACCEPTANCE OF FRANCHISE OBLIGATIONS. 2.1 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 Village's Reliance On Transfer Parties' Representations, The Transfer Parties acknowledge and agree that the Village's consent to the Transfer and the resulting transfer of the Franchise is made in reliance on the written representation,documents, and information provided by the Transfer Parties in connection with the Application. 3.2 Consent to Transfer Limited to No Material Chanae. The Transfer Parties acknowledge and agree that: (i)the Village's consent to the Transfer is conditioned upon there being no material change adverse to the Village 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; and (ii)any such change shall make the Village's consent to the Transfer of Control null and void,and the 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 Village 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 Village shall have the right to compel TCI to comply with all lawful provisions of the Franchise Documents. (b) Renewal of Franchise. The Transfer Parties acknowledge and agree that the Village 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 Village in accordance with applicable federal, state and local laws, the Franchise Documents, and the Transfer Agreement. (c) Qualifications. The Village's consent to the Transfer is made without prejudice to, or waiver of, any right of the Village 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 Transfer/Assignments. The Transfer Parties acknowledge and agree that, by its consent, the Village 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 subject to the consent of the Village pursuant to applicable federal, state, or local law, including the Franchise Documents. (e) Past Defaults. The Transfer Parties shall not contend that the Village is barred, by reason of its consent to the Transfer,from considering or raising any lawful claim 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 Village or any of its departments or applicable law, including,without limitation: any unpaid franchise fees due the Village from the Franchisee, any unpaid support for public,educational, or governmental access 2 channels, any known and unresolved consumer complaints, any construction,security or facility requirements of the Franchise Documents that are unsatisfied, and any unpaid charges due Village or any of its departments, subject to applicable law. (f) Franchisee's Compliance. The Village's consent to the Transfer shall in no way be deemed a representation by the Village that the Franchisee is in compliance with all of its obligations under the Franchise Documents or any other agreements between the Franchisee and the Village of any departments thereof. 4.3 Obligations are not Franchise Fees, The Transfer Parties agree: (i)any payments made by any of the Transfer Parties to reimburse the Village for its costs of considering the application do not constitute franchise fees subject to the federal franchise fee limitation; and (ii)not to raise any claim or defense to the contrary in any proceeding or forum. 4.4 Sunset. In the event the Transfer does not close, or closes on terms that are in any material respect adverse to the Village from the terms disclosed to the Village in the Application of the supplemental information and materials supplied in response to the Village's request for additional information, then any Village approval of the Transfer of Control shall be deemed revoked, and the request for consent to the Transfer shall be deemed to have been timely denied. ARTICLE V. MISCELLANEOUS. 5.1. Binding Agreement, This Transfer Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns. 5.2 Survival of Warranties and Reeresentations. The warranties and representations of the Transfer Parties and their indemnification obligations contained in this Transfer Agreement shall survive the closing 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 accordingly. 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 Draftina. This Transfer Agreement is a product of common negotiation among the parties and shall not be construed against any party on grounds relating to drafting, revision 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 Authorily, Each signatory to this Transfer Agreement represents that he or she has the authority to enter into this Transfer Agreement. j 3 5.10 Effective Date. This Transfer Agreement may be executed in multiple counterparts no later than 60 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 all 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. VILLAGE OF OAK BROOK By: /'7�- &;ar-K ren M. Bushy-R*- April 13, 1999 Village President Date MEDIA ONE OF THERN ILLINOIS, INC. By: Its: v.p• .Goer. AAcs �t--Zz-S9 Date • TCI TKR OF SOUTH DADE, INC. By: X v -v� _� 4/1/1�1 Its: ffotom S Date PRESIDENT s 4