HomeMy WebLinkAboutCC RES 01-109CITY OF PALM DESERT
RIVERSIDE COUNTY, CALIFORNIA
RESOLUTION NO. 01-109
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT CONDITIONALLY AUTHORIZING AND
CONSENTING TO THE ASSIGNMENT AND TRANSFER OF
A CABLE TELEVISION FRANCHISE HELD BY TWI
SUMMIT CABLE, INC. TO TIME WARNER
ENTERTAINMENT - ADVANCE/NEWHOUSE
PARTNERSHIP
RECITALS:
A. TWI Summit Cable, Inc., a Delaware corporation ("Franchisee"), is the
duly authorized holder of a franchise dated October 11, 1984 ("Franchise"). In accordance with
Resolution No. 99-68, adopted by the Palm Desert City Council ("Franchise Authority") on June
24, 1999, the Franchise was transferred to the Franchisee by MediaOne Enterprises, Inc. The
Franchise authorizes the construction, operation, and maintenance of a cable television system
within the City of Palm Desert.
B. Resolution No. 00-84, adopted by the Franchise Authority on June 22,
2000, authorized a transfer of control of the Franchise from Time Warner, Inc., the former parent
company of TWI Summit Cable, Inc., to AOL Time Warner Inc.
C. On June 22, 2001, the Franchise Authority received from TWI Summit
Cable, Inc., a wholly -owned subsidiary of AOL Time Warner, Inc. ("Assignor"), and from Time
Warner Entertainment-Advance/Newhouse Partnership ("Assignee"), an application for the
assignment and transfer of the existing 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 September 21, 2001.
D. 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 the Assignee in connection with the proposed
assignment and transfer of the Franchise.
E. The staff of the Franchise Authority has reviewed the documentation that
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Resolution No. 01-109
accompanied FCC Form 394 and, based upon the representations set forth in that documentation,
has concluded that the proposed Assignee, Time Warner Entertainment-Advance/Newhouse
Partnership, has the requisite financial, technical, and legal qualifications to adequately perform,
or to ensure the performance of, all obligations required of the Assignee under the Franchise, and
that the Assignee will continue to be bound by all existing terms, conditions, and obligations of
the Franchise now held by the Assignor.
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 conditionally consents to and approves
the proposed assignment and transfer of the Franchise by TWI Summit Cable, Inc., to Time
Wamer Entertainment-Advance/Newhouse Partnership.
Section 2. The authorization, consent and approval of the Franchise Authority to
the proposed assignment and transfer is conditioned upon compliance by the Franchisee and the
Assignee with the following requirements, as to which they are jointly and severally responsible:
A. Not later than the date on which this resolution is scheduled to be
considered by the Franchise Authority's governing body, the Assignee must file in the office of
the City Clerk a duplicate original of this resolution containing the signature of an authorized
representative of the Assignee under the heading entitled "Acceptance of Resolution by
Assignee" that is attached to this resolution. If this condition is not satisfied by the Assignee,
then the provisions of Section 3 of this resolution will apply.
B. Within 30 days after the closing of the transactions described in the FCC
Form 394 filed with the Franchise Authority, the following conditions must be satisfied:
(1) The Franchisee and the Assignee will execute and file in the office
of the City Clerk an "Assignment and Assumption Agreement" in substantially the form attached
to this resolution as Exhibit A. The Mayor is authorized to execute that document, thereby
evidencing the written consent of the Franchise Authority to the assignment and assumption of
all rights and obligations under the Franchise.
(2) An original or conformed copy of the written instrument
evidencing the closing and consummation of the assignment and transfer of the Franchise must
be filed in the office of the City Clerk.
C. 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 assignment and transfer of the Franchise; provided, however, that those costs and
expenses will not exceed the sum of $2,000 and will be set forth in an itemized statement
transmitted by the City Manager, or the City Manager's designee, to the Franchisee or the
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Resolution No. 01-109
duly authorized representatives as of the date set forth below the authorized signature.
TWI Summit Cable, Inc., a Delaware
corporation
By
APPROVED AS TO FORM: (Authorized officer)
Title:
Legal Counsel Date:
APPROVED AS TO FORM:
Legal Counsel
APPROVED AS TO FORM:
City Attorney
ATTEST:
City Clerk
"ASSIGNOR"
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A-2
"ASSIGNEE"
TIME WARNER
ENTERTAINMENT -ADVANCE/
NEWHOUSE PARTNERSHIP, a New York
general partnership
By: Time Warner Entertainment
Company, L.P., Managing General
Partner, through its Time Warner
Cable Division
By:
Title:
Date:
(Authorized Officer)
"FRANCHISE AUTHORITY"
CITY OF PALM DESERT
By
Mayor
Date:
Resolution No. 01-109
Assignee, or both, within 60 days afler the effective date of this resolution. The total amount set
forth in that statement must be paid by the Franchisee or the Assignee to the Franchise Authority
within 30 days after the date of the statement.
Section 3. If the Assignee fails or refuses to comply with the condition set forth
above in paragraph (A) of Section 2, then the authorization, consent, and approval of the
Franchise Authority to the proposed assignment and transfer will be rescinded without further
action by the Franchise Authority, and the application of the Franchisee and the Assignee will be
denied in all respects. This denial will be based upon and supported by the failure or refusal of
the Assignee to acknowledge its legal obligations under the Franchise and Chapter 14.01, Title
14, of the Palm Desert Municipal Code. The denial will be deemed to be without prejudice to
the right of the Franchisee and the Assignee to submit to the Franchise Authority a new FCC
Form 394.
Section 4. Nothing contained in this resolution may be construed to extend the
term of the Franchise, which will terminate in its entirety on June 30, 2002.
Section 5. 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, Califomia 92211
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Resolution No. 01-109
Section 6. The City Clerk is directed to certify to the passage and adoption of this
resolution.
PASSED, APPROVED, AND ADOPTED this 11 t s . o ', 001.
APPROVED AS TO FORM:
AYES: BENSON, CRITES, KELLY, SPIEGEL, FERGUSON
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
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ACCEPTANCE OF RESOLUTION BY ASSIGNEE
TIME WARNER ENTERTAINMENT—ADVANCE/NEWHOUSE PARTNERSHIP, a New
York general partnership, accepts and agrees to comply with the terms and provisions of this
resolution.
TIME WARNER
ENTERTAINMENT —AD V ANCE/NE WHOUS E
PARTNERSHIP, a New York general partnership
By: Time Warner Entertainment Company, L.P.,
Managing General Partner, through its Time
Warner Cable Division
By:
Title:
Date:
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(Auth9dzed Officer)
President, Desert Cities Division
Resolution No. 01-109
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
(CABLE TELEVISION FRANCHISE AGREEMENT)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is
made and entered into this day of , 2001, by and between TWI Summit
Cable, Inc., a Delaware corporation ("Assignor"), Time Warner
Entertainment—Advance/Newhouse Partnership, a New York general partnership ("Assignee"),
and the City of Palm Desert, 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 Palm
Desert, California. Assignor's nonexclusive cable television franchise will expire on June 30,
2002.
B. Subject to the prior consent of the Franchise Authority, Assignor desires to
assign and transfer to Assignee, and Assignee desires to assume, all rights, duties, and
obligations under that certain cable television franchise agreement between the Franchise
Authority and the Assignor that became effective on October 11, 1984, and was thereafter
assigned and transferred to Assignor's predecessors -in -interest ("Franchise Agreement").
THE PARTIES AGREE AS FOLLOWS:
i. Assignor assigns and transfers to Assignee all of Assignor's rights, duties,
and obligations under the Franchise Agreement.
ii. 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.
iii. Franchise Authority consents to the assignment and transfer by Assignor
to Assignee of all rights, duties, and obligations specified in the Franchise Agreement.
TO EFFECTUATE THIS AGREEMENT, the parties have caused this
Assignment and Assumption Agreement to be executed by their
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ACCEPTANCE OF RESOLUTION BY ASSIGNEE
TIME WARNER ENTERTAINMENT—ADVANCE/NEWHOUSE PARTNERSHIP, a New
York general partnership, accepts and agrees to comply with the terms and provisions of this
resolution.
TIME WARNER
ENTERTAINMENT—ADVANCE/NEWHOUSE
PARTNERSHIP, a New York general partnership
By: Time Warner Entertainment Company, L.P.,
Managing General Partner, through its Time
Warner Cable-Hrvision
B
Title:
Date:
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(Auth *ized Officer)
DR)/5-/0).0
^ ) 9 az.oi
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
(CABLE TELEVISION FRANCHISE AGREEMENT)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is
made and entered into this day of , 2001, by and between TWI Summit
Cable, Inc., a Delaware corporation ("Assignor"), Time Wamer
Entertainment—Advance/Newhouse Partnership, a New York general partnership ("Assignee"),
and the City of Palm Desert, 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 Palm
Desert, California. Assignor's nonexclusive cable television franchise will expire on June 30,
2002.
B. Subject to the prior consent of the Franchise Authority, Assignor desires to
assign and transfer to Assignee, and Assignee desires to assume, all rights, duties, and
obligations under that certain cable television franchise agreement between the Franchise
Authority and the Assignor that became effective on October 11, 1984, and was thereafter
assigned and transferred to Assignor's predecessors -in -interest ("Franchise Agreement").
THE PARTIES AGREE AS FOLLOWS:
i. Assignor assigns and transfers to Assignee all of Assignor's rights, duties,
and obligations under the Franchise Agreement.
ii. 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.
iii. Franchise Authority consents to the assignment and transfer by Assignor
to Assignee of all rights, duties, and obligations specified in the Franchise Agreement
TO EFFECTUATE THIS AGREEMENT, the parties have caused this
Assignment and Assumption Agreement to be executed by their
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