HomeMy WebLinkAboutRes 00-84 Transfer Control Cable TV Franchise Held by TWI Summit Cable, Inc.I
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e Interoffice Memorandum
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•••• Department of Community Affairs/City Clerk
DATE: June 22, 2000
TO: Honorable Mayor and Members of the City Council
FROM: Acting City Clerk
SUBJECT: RESOLUTION NO. 00-84- A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF PALM DESERT, CALIFORNIA, AUTHORIZING AND
CONSENTING TO THE TRANSFER OF CONTROL OF A CABLE
TELEVISION FRANCHISE HELD BY TWI SUMMIT CABLE, INC.
RECOMMENDATION:
Waive further reading and adopt Resolution No. 00-84, subject to the execution of the acceptance
of resolution by franchisee.
BACKGROUND:
At its regular meeting of May 25, 2000, the City Council took certain actions with regard to the
cable television franchise (copy of those Minutes attached for your reference).
Attached is a copy of a letter from Bill Rudell, Richards, Watson & Gershon, the City's special
counsel regarding such affairs, where he has recommended adoption of the accompanying
resolution subject to obtaining the signature of a Time Warner official at the Palm Desert office.
Staff will be hand delivering the agreement to Time Warner Monday, June 19, for said signature
and will confirm at this meeting whether or not it was obtained.
Your adoption of the subject resolution is, therefore, recommended, subject to acceptance by
TWI Summit Cable, Inc.
Respectfully submitted, Reviewed and concur:
C—R----::p)
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RACHELLE D. KLASSE CARLOS L. ORTEGA
ACTING CITY CLERK ACTING CITY MANAGER
Attachments (as noted)
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CITY COUNCIL TION:
APPROVED DENIED
RECEIVED OTHER
MEETIN DATE OWINIWNI
AYES: 4A 4 :a4 �
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NOES: �. ..��;- . , _ � ,
ABSENT: .n
ABSTAIN:
VERIFIED BY:
Original on File with City C rk's) Office
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1
MINUTES
REGULAR PALM DESERT CITY COUNCIL MEETING MAY 25, 2000
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
VI. ORDINANCES
For Introduction:
A. ORDINANCE NO. 946 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, REGULATING CABLE, VIDEO, AND
TELECOMMUNICATIONS SERVICE PROVIDERS AND AMENDING TITLE 14 OF THE
PALM DESERT MUNICIPAL CODE.
Mrs. Gilligan reported that the proposed ordinance had been reviewed by the Technology
Committee at three different meetings, and she introduced Mr. Bill Rudell of Richards,
Watson & Gershon, Special Counsel to the City of Palm Desert regarding cable television and
telecommunications matters, who had been working with the Committee to move the
recommendation forward to the City Council. She pointed out that the staff report for this item
requested additional action—adoption of a resolution that would extend the agreement with Time
Warner to September 30,2000(from June 30),to allow sufficient time for negotiation and better
attention to the community's needs assessment.
Upon question by Councilman Kelly whether there was a provision in the proposed agreement
that would allow for televised City Council Meetings should that be decided at some time in the
future,Mr. Rudell said there was such a provision in the franchise renewal agreement that would
trigger a second look at the agreement if and when the City Council decided to cablecast its
meetings. Councilman Kelly felt the franchise agreement should require it,clarifying that it hadn't
yet been decided, but the option should automatically be available.
MR. RUDELL stated it would be there, explaining that the issue of support of local cable usage
had yet to be finalized.
Council concurred that the provision for future cablecast of City Council Meetings should be made
available in the agreement for future activation.
Secondly, Councilman Kelly felt a good deal of work had been done by representatives from the
Senior Center for providing some amateur programs at a certain time of day on a certain
channel(s), and he wondered whether or not a provision for such access was included in the
proposed agreement— Senior TV.
MR. RUDELL affirmed that such a provision could be incorporated. He said it would be added
to the list of items that constituted PEG access support, the cable operator's obligations to
accommodate the aforementioned or any other group that would be a regular user of the studio
facilities.
5
MINUTES
REGULAR PALM DESERT CITY COUNCIL MEETING MAY 25, 2000
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Councilman Kelly pointed out that it would have to be a group that was approved by the City
Council.
In response to question, Mr. Rudell said time for the public access channel was specified in the
agreement for those groups that were approved for usage.
Mayor Pro-Tem Ferguson asked for clarification that the City's ordinance regulating cable was
simply being updated, and staff was seeking an extension of the time within which to negotiate
with Time Warner and then come back before September 30 with a franchise agreement. He said
the current franchise agreement had not been updated since 1984, and this would bring the
ordinance current with the law and allow the summer to negotiate with Time Warner for the very
things Councilman Kelly was talking about.
MR. RUDELL noted there were three items before the Council at this time, and he reviewed
them from the staff report.
Mayor Pro-Tem Ferguson noted that the agreement would allow for contacting all non-profit
groups for their interest in public access television, commenting that the previous agreement had
such rights.
Mayor Crites asked whether there were models of agreements that were extraordinarily
"community-friendly" and, if so, he wished to see such examples from those communities.
MR. RUDELL said there was a great deal of existing precedence for such guidelines, and it was
important to recognize that different cities had different attitudes.
Mrs. Gilligan stated that Mr. Rudell had presented a proposed draft agreement, and she would
be happy to provide it to the Council. She added that it would be before the Technology
Committee at its next meeting.
Mayor Pro-Tem Ferguson moved to: 1)Waive further reading and pass Ordinance No. 946 to second
reading; 2) waive further reading and adopt Resolution No. 00-66, extending the expiration of the City's
Cable Television Franchise Agreement with Time Warner from July 1, 2000, to September 30, 2000;
3)by Minute Motion, authorize Richards, Watson& Gershon to request an extension to the filing deadline
of the Form 394 dealing with the Time Warner/AOL merger. Motion was seconded by Benson and carried
by a 4-0 vote with Councilman Spiegel ABSENT.
For Adoption:
None
6
RICHARDS, WATSON & GERSHON
ATTORNEYS AT LAW
A PROFESSIONAL CORPORATION
WILLIAM B. RUDELL THIRTY-EIGHTH FLOOR OFFICES IN
WRUDELL@RWGLAW.COM 333 SOUTH HOPE STREET LOS ANGELES
LOS ANGELES,CALIFORNIA 9007 1-1 46 9
(213)626-8484 SAN FRANCISCO
FACSIMILE(213)626-0078 ORANGE COUNTY
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Q
June 9,2000
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Ms. Sheila Gilligan Acting Assistant City Manager "'
City of Palm Desert I.
73-510 Fred Waring Drive �;
Palm Desert,California 92260 rn co
Re: Merger of Time Warner Inc. and America Online,Inc.—Revised Resolution
Dear Sheila:
On Thursday,June 8,2000,I received a call from Gary Matz,Esq.,an attorney for
Time Warner Cable. He has requested that the"Transfer of Control' resolution relating to the merger
of Time Warner Inc.and America Online be modified. Specifically,he has requested that the
obligations in Section 2 of the resolution be imposed upon the current franchisee,rather than the two
merging companies,and that the"Acceptance of Resolution"attachment be signed by the current
franchisee,rather than AOL Time Warner Inc.
I have no objection to the proposed changes,because I believe that they will expedite
the ability of the City to obtain the cable operator's consent to the resolution and future reimbursement
of costs incurred. Consequently,I have revised certain provisions of Section 2 of the resolution,as
well as the"Acceptance"form. This new resolution should be substituted for the resolution that I
previously sent to you.
Very truly yours,
r
AL.4:.
William B. Rudell
Special Counsel
Enclosure
P6401\1030\605492.1
RESOLUTION NO. 00-84
ACCEPTANCE OF RESOLUTION BY FRANCHISEE
TWI SUMMIT CABLE,INC., a Delaware corporation, accepts and agrees to comply with the
terms and provisions of this resolution.
TWI SUMMIT CABLE, INC.
a Delaware corporation
By:
(Authorized Officer) SIGNATURE MUST BE
NOTARIZED
Title:
Date:
P6401\1030\592919.2 -4- DRAFT 6/9/00
RESOLUTION NO. 00-8,
State of California }
}
County of RIVERSIDE }
On , 2000 , before me,
a Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (seal)
DESCRIPTION OF ATTACHED DOCUMENT:
Acceptance of Resolution No. 00-84 by Franchisee
(TITLE OR TYPE OF DOCUMENT)
1
(NUMBER OF PAGES)
(DATE OF DOCUMENT)
(SIGNER(S)OTHER THAN NAMED ABOVE)
-5-
CITY OF PALM DESERT
RIVERSIDE COUNTY, CALIFORNIA
RESOLUTION NO. 00-84
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT AUTHORIZING AND CONSENTING TO THE
TRANSFER OF CONTROL OF A CABLE TELEVISION
FRANCHISE HELD BY TWI SUMMIT CABLE,INC.
RECITALS:
A. TWI Summit Cable, Inc., a Delaware corporation("Franchisee"), is the
duly authorized holder of a franchise ("Franchise")that, in accordance with Resolution No. 99-
68, adopted by the Palm Desert City Council("Franchise Authority") on June 24, 1999,was
transferred by MediaOne Enterprises, Inc. The Franchise authorizes the construction, operation,
and maintenance of a cable television system within the City of Palm Desert.
•B. On or about February 11, 2000,the Franchise Authority received from
Time Warner Inc. ("Transferor"), and from AOL Time Warner Inc. ("Transferee"), an application
for the Franchise Authority's consent to a transfer of control of the Franchise. This application
was made on FCC Form 394 entitled "Application for Franchise Authority Consent to
Assignment or Transfer of Control of Cable Television Franchise." Supplemental information
relating to this application was provided to the Franchise Authority by the applicants on April 21,
2000.
C. In accordance with Section 14.01.040(6)of Chapter 14.01,Title 14, of the
Palm Desert Municipal Code,the Franchise Authority has the right to review and to approve the
financial,technical,and legal qualifications of AOL Time Warner Inc. in connection with the
proposed transfer of control of the Franchise and the Franchisee.
D. The staff of the Franchise Authority has reviewed the documentation that
accompanied FCC Form 394 and,based upon the representations set forth in that documentation,
has concluded that the proposed Transferee,AOL Time Warner Inc.,has the requisite fmancial,
technical, and legal qualifications to adequately perform, or to ensure the performance of, all
obligations required of the Franchisee under the Franchise, and that the Franchisee will continue
to be bound by all existing terms, conditions, and obligations under the Franchise previously
transferred to the Franchisee as authorized by Resolution No. 99-68 that was adopted by the
Franchise Authority.
P6401\1030\592919.2 -1- DRAFT 6/9/00
RESOLUTION NO. 00-84
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM
DESERT RESOLVES AS FOLLOWS:
Section 1. In accordance with Section 14.01.040(6)of Chapter 14.01,Title 14, of
the Palm Desert Municipal Code,the Franchise Authority consents to and approves the proposed
merger transaction by and between Time Warner Inc., on the one hand, and America Online, Inc.,
on the other hand,which merger transaction when consummated will result in a change of
control of the Franchisee, TWI Summit Cable, Inc., and of the Franchise.
Section 2. The authorization, consent and approval of the Franchise Authority to
the proposed change of control is conditioned upon compliance by the Franchisee with the
following requirements:
1. An original or conformed copy of the written instrument evidencing the
closing and consummation of the proposed merger transaction that will result in a change of
control of the Franchisee and the Franchise must be filed in the office of the City Clerk within 30
days after that closing and consummation.
2. Regardless of whether the transaction described in the FCC Form 394 actually
closes,the Franchise Authority will be reimbursed for all costs and expenses reasonably incurred
by the Franchise Authority in processing and evaluating the information relating to the proposed
change of control of the Franchisee and the Franchise;provided,however,that those costs and
expenses will not exceed the sum of$2,500 and will be set forth in an itemized statement
transmitted by the City Manager, or the City Manager's'designee,to the Franchisee within 60
days after the effective date of this resolution. The total amount set forth in that statement must
be paid by the Franchisee to the Franchise Authority within 30 days after the date of the
statement.
Section 3. Nothing contained in this resolution may be construed to extend the
term of the Franchise, which will terminate in its entirety on September 30,2000.
Section 4. The City Clerk is directed to transmit a certified copy of this resolution
to the following persons:
Gary Matz,Esq.
Assistant General Counsel
Time Warner Cable
290 Harbor Drive
Stamford, Connecticut 06902-7441
Ms. Kathi Jacobs
Government Affairs Supervisor
Time Warner Cable
41-725 Cook Street
Palm Desert, California 92211
P6401\1030\592919.2 -2- DRAFT 6/9/00
RESOLUTION NO. 00-84
Section 5. The City Clerk is directed to certify to the passage and adoption of this
resolution.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Palm Desert City
Council held on this 22nd day of June , 2000, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
JIM FERGUSON, MAYOR PRO TEMPORE
ATTEST:
RACHELLE D. KLASSEN, ACTING CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
APPROVED AS TO FORM:
CITY ATTORNEY
P6401\1030\592919.2 -3- DRAFT 6/9/00