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HomeMy WebLinkAboutResolution 2000-04 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 ENTERT AINMENT - 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 ofOcoee, 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 976.502, 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 RESOL VEDBY THE CITY COUNCIL OF THE CITY OF OCOEE, FLORIDA, THAT: Section 1. Section 2. The foregoing recitals are approved and incorporated herein by reference. 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. 2 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 JULY 5, 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 3 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. 4 ATTEST: APPROVED: CITY OF OCOEE, FLORIDA IW: 5~-{/aJ S. Scott Vandergrift, Mayor . (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. APPRgVED AS TO FORM AND LEGALITY this day of June, 2000. ~~ APPPROVED BY THE CITY OCOEE COMMISSION AT A MEETING HELD ON THE DATE INDICATED ABOVE UNDER AGENDA ITEM NO. \fIT &. FOLEY & LARDNER BY: City Attorney 5 EXHIBIT A ACCEPTANCE OF RESOLUTION BEFORE ME, appeared the undersigned authority who being duly sworn upon his oath deposes and states that: 1. The Affiant is the President, Florida Division Time Warner Communications and is the person authorized to execute this document on behalf of Time Warner Entertainment- Advance/Newhouse Partnership dba Time Warner Communications. 2. The Affiant is submitting this affidavit as a condition precedent to the transfer of control of Time Warner Entertainment- Advance/Newhouse Partnership dba Time Warner Communications, a City ofOcoee Cable Television Franchisee from Time Warner, Inc. to AOL Time Warner Inc. 3. The Affiant is submitting this Affidavit as an unconditional acceptance by Franchisee of Cable Communications Ordinance No.99-37 of the City ofOcoee, Florida, 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 Inc. to AOL Time Warner Inc. 4. Franchisee shall comply with and abide by all terms, provisions and conditions of the City ofOcoee Ordinance No. 99-37 the current Time Warner Cable Franchise and the Resolution approving the transfer of control of the Time Warner franchise from Time Warner, Inc. to AOL Time Warner Inc. 5. Franchisee shall comply with Section 57-09(D) ofthe Ordinance. 6. Franchisee shall continue to hold of all of the current obligations and liabilities under the Franchise Agreement and Ordinance No. 99-37 known and unknown. 7. 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. 8. This Exhibit A may be signed in counterparts. FURTHER AFFIANT SA YETH 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 200 0 ag~ this affidavit. Time Warner Ente John N. fis:president Contral Florida Division STATE OF \:\D{ \OlL) ) ss: COUNTYOF~ ) BEFORE ME, the undersigned authority, personally appeared Jo S who is known to me personally (or provided proof of identification) and upon being first du y swo 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 Coonty and State last aforesaid this ':J''''- day of 'vl v\ ,2000. (~UAt ~ ' n1LVv~ NOTARY PUBLIC My Commission expires: """"1 Susan L Martin ""01- ~~ ~ My Commission CC901387 """""~ Expires January 12.2004 3