S-934 - 04/13/1999 - CABLE TV - Ordinances ORDINANCE 99-AG-CB-EX1-S-934
AN ORDINANCE OF THE VILLAGE OF OAK BROOK, ILLINOIS
CONSENTING TO THE CHANGE OF CONTROL OF THE
CABLE TELEVISION FRANCHISEE
FROM TC1 TKR OF SOUTH DADE, INC.TO AT&T CORP.
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., a wholly owned
subsidiary of U.S. West; and
WHEREAS, by Ordinance 99-AG-CB-EX1-S-933,the Village approved a transfer of this franchise
from MediaOne of Northern Illinois, Inc. to TCI TKR of South Dade, Inc., d/b/a/TCI ("the Franchisee"); and
WHEREAS, Tele-Communications, Inc. ("TCI"),the parent of the Franchisee, and AT&T Corp.
("AT&T")jointly submitted to the Village their application on Federal Communications Commission ("FCC")
Form 394, dated November 19, 1998 (the"Application"), requesting that the Village approve the change of
control of the Franchisee from TCI to AT&T(the"Change of Control")which results from the transactions
associated with the Agreement and Plan of Restructuring and Merger dated June 23, 1998 (the
"Transaction"); and
WHEREAS, pursuant to the information requests of the Village,TCI and AT&T supplemented the
Application with additional documents and information; and
WHEREAS,AT&T and TCI have made various representations in the Application and
supplemental information thereto including that the transaction is not expected to increase 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 Franchisee will remain the holder of the Franchise upon consummation of the
Change of Control; and
WHEREAS, the Village and the Franchisee have negotiated an agreement regarding certain
conditions of this consent(the"Change of Control 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, as follows:
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 below, the Village hereby
consents to the Change of Control of the Franchisee from TCI to AT&T as described in the Application
and supplemental information thereto; and
ORDINANCE 99-AG-CB-EXI-S-934
Cable Television Franchise
Change of Control
TCI TKR of South Dade, Inc. to
AT&T Corp., Page 2
Section 2: 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 Change of Control Agreement; and
Section 33: That, by this consent,the Village does not approve of or consent to: (1)any other
change 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. Any
other change of control of the Franchisee,any pending or future transfer of the Franchise, or any pending
or future assignment or delegation of any of the Franchisee's rights or duties under the Franchise are
subject to any then applicable federal, state and local laws, the Franchise documents, and the Change of
Control Agreement; and
Section : That, by this consent,the Village does not make any representation that the
Franchisee is in compliance with all of its obligations under the Franchise documents; and
Section 55: That, by this consent, the Village does not waive any of the Franchisee's
commitments, duties and obligations under the Franchise Documents, including any accrued and
unfulfilled obligation of the Franchisee,whether known or unknown, relating to the Franchise; and
Section 6: That the Village President is hereby authorized and directed to execute and deliver the
Change of Control 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.
of 0t1
Village President-
��
dlage Clerk
Approved as to Form:
Village Attorney
ORDINANCE 99-AG-CB-EXI-S-934
Cable Television Franchise
Change of Control
TCI TKR of South Dade, Inc.to
AT&T Corp., Page 3
Published:
Date Paper
Not Published: XX
EXHIBIT A
CHANGE OF CONTROL AGREEMENT
Agreement between the Village of Oak Brook, DuPage and Cook Counties, Illinois (the"Village")
and TCI TKR of South Dade, Inc., d/b/a TCI (the"Franchisee").
Recitals
A. The Franchisee is the holder of a franchise(the"Franchise")to provide cable television service in
the Village, subject to the provisions of a franchise agreement 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. AT&T Corp. ("AT&T")and"TCI"have submitted to the Village an FCC Form 394 Application for
Franchise Authority consent to Assignment or Transfer of Control of Cable Television Franchise,
dated November 19, 1998(the"Application"), requesting the Village to consent to a change of
control of the Franchisee from TCI to AT&T(the"Change of Control")which results from the
transactions associated with the Agreement and Plan of Restructuring and Merger dated June 23,
1998(the"Transaction"). The Franchisee desires that the Village grant that approval.
C. Pursuant to the request of the Village,AT&T and TCI have provided supplemental information in
support of the Application including representations that the Transaction is not expected to have
any effect on cable television subscriber rates in the Village or reduce the quality of cable
television customer service or the quality of cable television service.
D. The Franchisee will remain the holder of the Franchise upon consummation of the Change of
Control.
E. The Village has enacted or will enact an Ordinance granting its approval of the Change of Control,
subject to the condition that the Franchisee enter into this Change of Control Agreement.
F. The Municipality has determined that, in light of the facts available to it and the limited time within
which to review the Application, it would not be appropriate to approve the change of Control
absent certain agreements by the Franchisee, including certain promises to ensure compliance
with the provisions of the Franchise Documents. The Franchisee agrees that it is appropriate to
make such agreements, subject to the Village's approval of the Change of Control.
Agreement
NOW,THEREFORE, the Village and the Franchisee agree as follows:
ARTICLE I. INCORPORATION OF RECITALS.
1.1 Recitals. The above Recitals are incorporated into and constitute a part of this Agreement.
ARTICLE II. AFFIRMATION OF FRANCHISE OBLIGATIONS.
2.1 Affirmation. The Franchisee acknowledges and agrees that: (a)after the Change of Control,
the Franchisee will continue to be bound by all of its commitments,duties and obligations under
the Franchise Documents; and (b)neither the Change of Control nor the Village's approval of the
Change of Control shall in any respect relieve the Franchisee of any responsibility it may have for
past acts or omissions,whether known or unknown,relating to the Franchise. The Franchisee
hereby reaffirms that it will be liable for, and accept the consequences of, any responsibility it may
have for such acts and omissions, including liability for any accrued but unfulfilled obligation to the
Village under the Franchise Documents and applicable law,to the same extent as if the Change of
Control had not taken place.
ARTICLE III. ADDITIONAL AGREEMENTS OF THE PARTIES.
3.1 Compliance With Franchise. The Franchisee agrees that it will continue to be bound by the
lawful obligations of this Agreement and the Franchise Documents.
3.2 No Waiver. The Franchisee agrees that,by the Village consenting to the Change of Control
and the execution of this Agreement, the Village is not waiving any of its rights or prospective
rights with respect to enforcement of the Franchisee"compliance with the terms and conditions
set forth in the Franchise documents, including without limitation:
(a) Renewal of Franchise. The Franchisee agrees 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 applicable federal, state and local laws,the Franchise Documents,
and this Agreement;
(b) Future Change of ControlsfFransfers. The Franchisee agrees that(1)any other
change 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 will be subject to the review and approval of the Village in accordance with any then
applicable federal, state and local laws, the Franchise Documents, and this Agreement;
(c) Past Defaults. The Franchisee shall not content that the Village is barred, by reason
of the Change of Control, from considering or raising any lawful claim it may have based on the
Franchisee's past or present failure to comply with any term or condition of the Franchise
Documents 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
channels; any known and unresolved consumer complaints; and any construction, security or
facility requirements of the Franchise Documents that are unsatisfied; and
(d) Franchisee's Compliance. The Village's approval of the Change of Control shall in no
way be deemed a representation by the Village that the Franchisee is in compliance or not in
compliance with its obligations under the Franchise Documents.
ARTICLE IV. MISCELLANEOUS
4.1 Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties
and their permitted successors and assigns.
4.2 Survival of Warranties and Representations. The warranties and representations of the
Franchisee shall survive the closing of the Transaction.
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4.3 Assignment. The rights and obligations of any party under this Agreement may not be assigned
or delegated without the prior written approval of the other party.
4.4 Waiver. No waiver of any provision of this Agreement shall be deemed to be a waiver of any
other provision of this Agreement nor shall any waiver be deemed to be a continuing waiver
except as otherwise expressly stated in writing by the waiving party.
4.5 Severabilitv. If any provision of this Agreement shall be held to be unenforceable, this Agreement
shall be construed with the unenforceable provision deleted,and the rights and obligations of the
parties shall be construed and enforced accordingly.
4.6 Governing Law. This Agreement shall be governed by the internal laws(without reference to
conflict of laws)of the State of Illinois.
4.7 Drafting. This Agreement is a product of negotiation between the parties and shall not be
construed against any party on grounds relating to drafting, revision,review or recommendation
by any agent or representative of such party.
4.8 Time of the Essence. Time is of the essence to this Agreement.
4.9 Authority. Each signatory to this Agreement represents that he or she has the authority to enter
into this Agreement.
4.10 Effective Date. This Agreement may be executed in multiple counterparts and shall be deemed
effective as of the closing date of the Transaction.
VILLAGE OF OAK BROOK 2!Lk
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Karen M. Bushyu
Village President
TCI TKR OF SOUTH DADE, INC.
By
Dated this 13th day of April, 1999.
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