HomeMy WebLinkAboutVII(B) Resolution No. 2000-04, Transferring Control Of Time Warner Television Franchise To AOL/Time Warner, Inc IA�gepn[dayTy6-06-2000
— "CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" MAY6R•113mISSIONER
Ocoeepo
S. SCOTT VANDERGRIFT
°\ CITY OF OCOEE COMMISSIONERS
—. _ DANNY HOWELL
Q 150 N.LAKESHORE DRIVE SCOTT ANDERSON
OCOEE,FLORIDA 34761-2258
RUSTY JOHNSON
�`'yl ���� (407) 656-2322 NANCY J.PARKER
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Of G 000 CITY MANAGER
' ELLIS SHAPIRO
MEMORANDUM
DATE: May 30, 2000
TO: The Honorable Mayor and City Commissioners
FROM: Ellis Shapiro
City Manager
SUBJECT: RESOLUTION No. 2000-04
Attached is a resolution transferring control of the Time Warner Cable Television
Franchise to AOL/Time Warner Inc.
Time Warner has met all the requirements of the Agreement and Ordinance 99-37,
therefore, we would recommend approval of Resolution No. 2000-04
Respectfully sub 'fitted,
ES/jl , #
POWTH
pr.EeccOcoee's Water ResEurces ,_
11305 530 9411 LEIBOUhT2 ASSOCIATES 05/25/0U 1613 P . UUI/00l
LEIBOwiaz & ASSOCIATES, P.A.
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BRAULIO L. BAEZ SUNTRuSY INTERNATIONAL CENTER TELEPHONE(305)530-1322
JOSEPH A.BELISLE ONE SOUTHEAST THIRD AVENUE TELECOPIER(3O5)530-9417
ILA L.FELD MIAMI,FLORIDA 33131-17 t5 E-MAIL Broadlaw@aoLcvrn
MATTHEW L_LE(9OWITZ
CAROLINE A.SORET
THOMAS H.WILLIAMS,JR.
MARK WISNIEWSKI
May 25,2000
VIA FACSIMILE 407-656-8504
Mr. Ellis Shapiro
City of.Ocoee
150 N.Lakeshore Drive
Ocoee, FL 34761
RE: Time Warner/AOL-Time Warner_Inc. Cable Television Franchise Transfer
Dear Ellis:
Please be advised,that Time Warner is expected to maintain its position that the One Hundred
and Twenty Day(120)automatic transfer approval period commenced upon the date of delivery to the
City of the FCC 394,and consequently expires on or about June 8,2000. While the Law Firm is not in
agreement with the Company's legal position, it is the Firms recommendation to the City to moot the
issue by'aking action prior to the above stated date. Accordingly,we would recommend to the City to
either grant or deny the request to consent to the transfer no later than the last duly noticed Commission
Meeting scheduled prior to June 8,2000.
It is our understanding that the executed franchise agreement has been received by the City,
however Time Warner has not provided the City with the transfer application fee required by Ordinance
99-37. Given that the City recently renewed the Time Warner franchise, the Firm knows of no other
outstanding issues which would raise concerns over the City's consent to the Time Warner/AOL-Time
Warner transfer, subject to the City's receipt of the required application fee.
The Firm has prepared a resolution approving the transfer, along with an acceptance of the
Franchise and Ordinance to be executed by the transferee. These will be forwarded via e-mail.for your
use.
Please do not hesitate to contact me if yo have any questions.
ine rely,
• uho L. Baez
•
cc: Ms.Janet G. Shira(Via Facsimile 407-656-8504)
c l25\2P1M1), if=etslE$I+:ymO-TWAQ(.Tran,red2ttOnun.71k0Ugn OT_5 wpd
May 21,2000(i:71 pm)
CITY OF OCOEE
RESOLUTION NO. 2000-04
A RESOLUTION OF THE CITY
COMMISSION OF THE CITY OF OCOEE,
FLORIDA, APPROVING THE TRANSFER OF
CONTROL OF TIME WARNER
ENTERTAINMENT - ADVANCE/NEWHOUSE
PARTNERSHIP, D/B/A TIME WARNER
COMMUNICATIONS, A CABLE
TELEVISION FRANCHISE TO AOL TIME
WARNER, INC.
WHEREAS, on February 9, 2000, the City of Ocoee, FL received an FCC 394 requesting
the City to consent to the proposed transfer of control of Time Warner Communications, a cable
television franchisee to AOL Time Warner, Inc.; and
WHEREAS, pursuant to City of Ocoee Ordinance No. 99-37 and the Time Warner
Franchise, the City Commission must approve any change of control; and
WHEREAS, the City has required that the applicant fulfill the obligations of the
Ordinance and the Franchise and provide information on the proposed transaction including
details on the legal, financial, technical qualifications of the transferee and such other
information as may be in the public interest; and
WHEREAS, under FCC Rules, 47 CFR §76.502, the City of Ocoee has 120 days from
the date of submission of a completed FCC Form 394, together with all Exhibits, and any
additional information required by the franchise agreement or applicable state or local law, to act
upon an application to sell, assign, or otherwise transfer controlling ownership of a cable system;
and
WHEREAS, it is the intent of the City to exercise its rights with respect to its authority to
approve requests for transfers of cable franchises; and
WHEREAS, Time Warner Communications has executed a written acceptance of the
terms and conditions of this Resolution and its agreement to be bound by Ordinance No. 99-37
and its agreement that it will continue to hold the obligations and liabilities of the current
franchise by agreement as a condition precedent to the Adoption of this Resolution (acceptance
attached hereto as Exhibit A); and
WHEREAS, in the event the proposed transaction between Time Warner and AOL is not
consummated within three hundred sixty days (360) of the date hereof or does not reach final
closure for any reason, or in the event such closure is reached on terms substantially or materially
different to the terms described in the FCC Form 394 and exhibits thereto, the approval granted
in this Resolution shall be null and void.
NOW, THEREFORE, BE IT RESOLVED .BY THE CITY COUNCIL OF THE
CITY OF OCOEE, FLORIDA, THAT:
Section 1. The foregoing recitals are approved and incorporated herein by reference.
Section 2. To the extent required, the City of Ocoee hereby consents to the change in
ultimate control of Time Warner Communications, a City of Ocoee Cable Television Franchisee
from Time Warner to AOL Time Warner, Inc.
Section 3. That the consent granted herein does not constitute and should not be
construed to constitute a waiver or release of any obligations of the Franchisee under the Cable
Communications Ordinance and the Franchise Agreement.
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Section 4. That the consent granted herein does not and should not be construed to
constitute a waiver of any right of the City or Franchisee under applicable law, including, but not
limited to the Ordinance; and further, this consent shall not prejudice the City's rights with
respect to the enforcement, renewal or transfer of the current cable television franchise and any
amendments thereto.
Section 5. That the consent herein granted is conditioned upon (a) Franchisee's
assurances set forth in its acceptance submitted to the City on , 2000 and attached hereto
as Exhibit A; and (b) compliance with Section 57-09(D) of the Ordinance.
Section 6. That the consent herein granted is limited to the right to provide cable
service as provided in the Franchise.
Section 7. That this Resolution shall have the force and effect of continuing and
amending the Agreement between the Franchisee and the City, the Franchise Authority to the
extent consistent with Ordinance No. 99-37.
Section 8. That the City hereby reserves all of its rights pursuant to Federal and local
law including, but not limited to the rights in (a) the franchise renewal process including, but not
limited to, the right to consider violations of the franchise by the current franchisee; (b) the
franchise transfer process including, but not limited to, the right to act upon any application to
sell, assign or otherwise transfer any interest in the franchisee or the cable system as provided in
the Franchise; and (c) the enforcement of the current Cable Communications Ordinance and
amendments thereto and the current cable television franchise and amendments thereto.
Section 9. That the consent herein granted expressly does not waive and expressly
reserves to the City of Ocoee its rights to fully exercise all applicable legal rights and authority
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with regard to Time Warner to AOL Time Warner, Inc. and their affiliates, parent or subsidiaries
in connection with any use of the rights of way not authorized by the City, including, but not
limited to levying fines or instituting litigation for trespass and ejectment.
Section 10. That the consent herein granted is an express non-waiver and reservation
of the City's rights and authority against Time Warner Communications for any franchise
violations that may exist.
Section 11. That the consent granted herein is subject to the transferor's and
transferee's compliance with all other applicable legal requirements and the City does not waive
and expressly reserves the right to enforce full compliance with its ordinance and franchise
requirements, whether or not any non-compliance that may be determined arose before or after
the transfer of control from Time Warner to AOL Time Warner, Inc.
Section 12. That this Resolution shall become effective upon the date of its adoption
herein.
•
ATTEST: APPROVED:
CITY OF OCOEE, FLORIDA
Jean Grafton, City clerk S. Scott Vandergrift, Mayor
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA.
APPROVED AS TO FORM AND LEGALITY
this day of June, 2000.
FOLEY& LARDNER APPPROVED BY THE CITY OCOEE
COMMISSION AT A MEETING HELD
ON THE DATE INDICATED ABOVE
UNDER AGENDA ITEM NO.
BY:
City Attorney
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EXHIBIT A
ACCEPTANCE
OF FRANCHISE BY TRANSFEREE
BEFORE ME, appeared the undersigned authority who being duly sworn upon his oath
deposes and states that:
1. The Affiant is the
and is the person authorized to execute this document on behalf of Time Warner
Communications.
2. The Affiant is submitting this affidavit as a condition precedent to the transfer of
control of Time Warner Communications, a City of Ocoee Cable Television Franchisee from
Time Warner, Inc. to AOL Time Warner Inc.
3. The Affiant is submitting this Affidavit as an unconditional acceptance by Affiant
of Cable Communications Ordinance No. 99-37 of the City of Ocoee, Florida, and amendments
thereto, the current Time Warner Communications Cable Franchise and amendments thereto, and
the Resolution of the City Commission approving the transfer of control of Time Warner
Communications to AOL Time Warner Inc.
4. Affiant shall comply with and abide by all terms, provisions and conditions of the
City of Ocoee Ordinance No. 99-37, the current Time Warner Cable Franchise and the
Resolution approving the transfer of the Time Warner franchise to AOL Time Warner Inc.
5. Affiant shall comply with Section 57-09(D) of the Ordinance.
6. Affiant shall continue to hold of all of the current obligations and liabilities under
the Franchise Agreement and Ordinance No. 99-37, known and unknown, and amendments
thereto.
7. Affiant hereby expressly agrees to cooperate in any franchise compliance inquiry.
8. The Franchisee agrees that the City does not waive any right to compliance with
the Franchise Agreement and Ordinance No. 99-37 by Franchisee and Franchisee hereby
assumes responsibility for any and all non-compliance under the current franchise or any other
enforceable agreement that may now exist or may later be discovered to have existed during the
term of the franchise even if prior to the closing of the transfer of control.
9. This Exhibit A may be signed in counterparts.
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FURTHER AFFIANT SAYETH NAUGHT.
The undersigned hereby acknowledges execution of this affidavit by Franchisee and agrees that it
shall cause Franchisee to take action, which shall result in Franchisee's compliance with the
lawful requirements of Resolution and this affidavit.
Time Warner Entertainment-Advance/Newhouse Partnership.
By:
Its:
STATE OF )
) ss:
COUNTY OF )
BEFORE ME,the undersigned authority,personally appeared
who is known to me personally(or provided proof of identification) and upon being first duly sworn
acknowledged that he/she executed the foregoing document freely and voluntarily and for the purpose
therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid this day of
, 2000.
NOTARY PUBLIC
My Commission expires:
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