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95-28RESOLUTION NO. 95 -28 A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA, APPROVING THE TRANSFER OF THE FRANCHISE TO OPERATE SUBJECT TO CERTAIN CONDITIONS, A CABLE TELEVISION SYSTEM IN THE CITY OF CLEARWATER FROM VISION CABLE OF PINELLAS, INC. TO TIME WARNER ENTERTAINMENT - ADVANCE/NEWHOUSE PARTNERSHIP; PROVIDING AN EFFECTIVE DATE. WHEREAS, Vision Cable of Pinellas, Inc. ( "Vision ") is the franchisee under a nonexclusive franchise (the "Franchise ") for the installation, operation and maintenance of a cable communications system within the City of Clearwater, Florida (the "City ") pursuant to City of Clearwater Ordinance No. 2084, as amended (the "Franchise Ordinance "); and WHEREAS, Time Warner Entertainment Company. L. P. ( "TWE ") with Advance Publications and Newhouse Broadcasting Corporation have created a new cable operation to be called Time Warner Entertainment- Advance /Newhouse Partnership (the "Partnership "); and WHEREAS, the partnership will be managed by TWE and be two- thirds owned by TWE and one -third owned by _ Advance /Newhouse, a . partnership of Newhouse Broadcasting and Advance Publications, inc; and WHEREAS, the Franchise Ordinance requires that prior to a transfer of the Franchise, the City must grant its prior written consent thereto; and WHEREAS, Vision and the Partnership have submitted a written application (the "Application ") requesting consent by the City to the transfer of the Franchise from Vision to the Partnership; and WHEREAS, the City has identified certain possible deficiencies with respect to the past performance of Vision, including a failure of Vision to have maintained activated upstream capacity and to have deployed status monitoring on Vision's cable system, and the failure of Vision to have provided required access and local origination equipment and operations, as well as other performance issues, as identified in the Franchise Compliance Analysis dated January 20, 1995, prepared by the City's consultants, Rice, Williams Associates, and discussed with Vision regarding the institutional network, and the City has further identified possible nonpayment or underpayment of franchise fees by Vision; and WHEREAS, the City has determined that it is appropriate to grant its consent to the transfer of the Franchise pursuant to the transaction described in the Application, provided that it has certain assurances that the performance and franchise fee issues will be adequately reviewed and addressed and the City's rights will be adequately protected; now, therefore, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF CLEARWATER, FLORIDA: Section 1. The City hereby consents to and approves the transfer of the Franchise from Vision to the Partnership pursuant to the transaction described in the Application (the "Transaction "), subject to the conditions set forth below, all of which have been agreed to by Vision and the Partnership: (a) That the Partnership assumes all obligations and liabilities of the franchisee (the "Franchisee ") under the Franchise Ordinance, any covenant, condition and agreements, including, without limitation, all obligations, if any, of the Franchisee as are currently required to have been performed but have not \Frahise ormed. (b) That the assumption described in paragraps Section 1 shall not release Vision from any obligations or liabilities under th Ordinance arising prior to the consummation of the Transaction. (c) That Vision and the Partnership agree that neither the City's consent to the transfer of the Franchise pursuant to the Transaction nor the completion of the Transaction shall: (i) in any way waive, diminish or otherwise affect adversely any right that the City has, may have, or may at any time or in any manner subsequently acquire, with respect to any matter, including, without, limitation, (A) the right of the City to require compliance with the terms of the Franchise Ordinance and to conduct any franchise fee audit or review and order payment of unpaid franchise fees, and (B) the Franchisee's past compliance with the Franchise Ordinance, including with respect to matters currently in discussion or disputed, including but not limited to the Franchisee's compliance with its obligations to provide upstream capacity, status monitoring, and the provision of access and local origination equipment and operations; or (ii) in any way waive, diminish or otherwise affect adversely any right the City would have had with respect to any matter, including, but not limited to any renewal of the Franchise or the City's right to consider pre - Transaction breaches in any renewal, and any right of the City to compensation or other remedies in respect of alleged prior breaches of the Franchise or any other prior commitment made with respect to performance under the Franchise, had the Transaction or the City's consent to the transfer of the Franchise pursuant to the Transaction never occurred. All such rights referenced in this paragraph (c) are expressly reserved by the City. (d) That the Partnership shall comply with the customer service guidelines and standards established and currently used by Vision Cable from and after the date of consummation of the Transaction, (e) That the Partnership shall continue to use the FCC's benchmark 2 eZ7- -9p' methodology Tor rate increases through the remaining term of the Franchise (as extended through August 20, 1995). (f) That Vision and the Partnership shall execute and deliver to the City documents embodying their agreement to and implementing the above conditions, in form and substance reasonably satisfactory to the City Attorney. (g) Issues of any franchise fee offsets and any passthroughs to subscribers that arise in connection with the performance- related issues currently under discussion and the subject of the Rice, Williams report shall be resolved in connection with the resolution of the substantive performance issues. Neither the City nor Vision waive any legal rights they may have with respect to passthroughs or offsets. Section 2. In the event of any breach of or failure to comply with, any of the terms or conditions of this Transfer Resolution, which breach or failure shall continue for more than 30 days after notice from the City, then such breach or failure shall constitute a substantial breach of the Franchise and the 30 -day cure period described above shall satisfy the cure period under Article III, Section S.c of the Franchise Ordinance and shall entitle the City to all rights and remedies under the Franchise Ordinance for such a breach or failure and under applicable law. Section 3. The City Manager is authorized to prepare and execute any agreements or other documents necessary or appropriate to implement this Transfer Resolution, provided such have been approved as to form by the City Attorney. Section 4. This Resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 27th day of FebruarV 1995. Rita Garvey, Mayor - Commis i er Attest: kL Cynth' E. Goudeau, City Clerk Ap'' ,moved a to form and legal sufficiency: a,� Pamela K. Akin, City Attorney