HomeMy WebLinkAboutReso 151-95 ViacomFranchiseAgmt RESOLUTION NO. 151 - 95
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING CABLE TELEVISION
FRANCHISE TRANSFER AGREEMENT
WHEREAS, Tele-Vue Systems, Inc. d/b/a Viacom Cablevision ("Grantee") is the duly authorized
holder of a franchise ("Franchise") authorizing the operation and maintenance of a cable television system
("System") and authorizing Grantee to service the City of Dublin ("Grantor") with cable television service;
and
WHEREAS, Viacom International, Inc., a Delaware corporation CViacom"), a wholly-owned subsidiary
of Viacom, Inc. ("vr') is an indirect parent of Franchisee; and
WHEREAS, VI, Viacom, Tele-Communications, Inc., a Delaware corporation ("TCF'), and TCI
Communications, Inc., a Delaware corporation and wholly-owned subsidiary of TCI ("TCIC"), are parties to
some or all of the following; a Parents Agreement, and Implementation Agreement, and a Subscription
Agreement (the "Agreements"); and
WHEREAS, upon consummation of the transactions contemplated by the Agreements (the
"Transactions"), TCIC will acquire all of the outstanding common stock of Viacom and become the indirect
parent of Grantee; and
WHEREAS, both before and after the completion of the change of control described above, Grantee held
and will continue to hold the Franchise, and own and operate the System servicing residents of Grantor; and
WHEREAS, Grantee and TCI have requested consent by the Grantor to the Transactions.
NOW, THEREFORE, BE IT RESOLVED that
Section 1. The City Council of the City of Dublin hereby consents to and approves the change of control of the
Franchise from Viacom to TCIC.
Section 2. Said transfer is conditioned upon the terms and conditions set forth in the attached "Exhibit 1,
Change of Control Consent Agreement".
Section 3. Unless TCIC and Grantor execute the said Change of Control Consent Agreement by December 15,
1995, this resolution shall be deemed to have been denied without prejudice.
Section 4. This resolution shall become effective immediately upon its passage and adoption.
PASSED, APPROVED AND ADOPTED this 12th day of December, 1995.
AYES:
NOES:
ABSENT:
ABSTAIN:
Councilmembers Barnes, Burton, Howard, Moffatt andMayor Houston
None
None
None
ATTEST:
K2/dec-95/reso-tv,doc
Exhibit 1
Change of Control Consent Agreement
.. This Consent Agreement, dated December 11, 1995, is entered into between TCI Communications, Inc. ("TCIC" )
and the City of Dublin ("Grantor").
RECITALS
A. Tele-Vue Systems, Inc. dlb/aNiacom Cable ("Franchiseej is the duly authorized holder of a franchise (the
"Franchise") authorizing operation of a cable television system (the "System") servicing the residents of
the Grantor.
B. Franchisee and TCIC have requested that the Grantor consent to the change of control of Franchisee from
Viacom Inc. to TCIC all as more fully described the FCC Form 394, filed with the Grantor in this regard.
C. Grantor is willing to consent to the change of control of Franchisee, upon the condition that TCIC execute.
this Agreement.
D. TCIC is willing to execute this Agreement in connection with obtaining Grantor's consent, with the
understanding that this Agreement will become effective upon consummation of the change of control of
Franchisee from Viacom, Inc. to TCIC.
IN CONSIDERATION OF THE FOREGOING, and of the obligations contained below, Grantor and TCIC agree as
follows:
Section 1
The consents of the Grantor to the Change of control of Franchisee do not constitute and shall not be construed to
." . . constitute a waiver of any obligations of Franchisee or any of its successors in interest under the Franchise or the
Cable Television Franchise Ordinance (Chapter 3.20, Dublin Municipal Code.)
Section 2
The Grantor and TCIC on behalf of the Franchisee agree that, as of the date of this Resolution: a) the Franchise
was properly granted to the Franchisee, is valid, remains in full force and effect, and expires on December 31,
2000, subject to options, if any, to extend the term; b) the Franchise supersedes all other agreements between the
Franchisee and the Grantor and represents the entire understanding of the parities. The Grantor will accept a
guarantee of TCI Pacific, Inc. in lieu of TCIC becoming a signatory to the Franchise Agreement as set forth in the
Cable Television Franchise Ordinance. Dublin Municipal Code Section 3.20.190 (F).
Section 3
TCIC acknowledges and agrees that, notwithstanding the change of control, Franchisee remains legally
responsible for any default under the Franchise not currently known to Grantor, including, but not limited to, any
franchise fees which may be due to the Grantor.
Section 4
Any interest in the System and the Franchise or the control related thereto, may be transferred to any entity wholly
owned by TCIC or under common control with TCIC upon notice to the Grantor.
Section 5
The Grantor hereby consents to and approves the assignment, mortgage, pledge. or other encumbrance, if any, of
.. .' the Franchise, System or assets relating thereto, or of the interests in the permitted holder thereof, as collateral for
. a loan.
EXHIBIT "2"
Section 6
TCIC agrees that it will cause the Franchisee to complete the Dublin portion of the voluntary system upgrade .
currently under construction in the City of Livermore, and shall offer expanded programming on the Dublin system
no later than December 31, 1997. If the Dublin portion of the voluntary system upgrade is not completed by
January 1, 1998, TCIC will cause the Franchisee to pay to Grantor liquidated damages as described in Section 4.3
of the Franchise Agreement, subject to the Force Majeure conditions described in Section 12.1 of the Franchise
Agreement.
Section 7
Section 7.3(e) of the Franchise Agreement is deleted and the following language is substituted:
Upon completion of the Dublin portion of the voluntary system upgrade currently under construction in the City of
Livermore due to be completed no later than December 31, 1997, the Franchisee will provide the Grantor a total of
three (3) PEG access channels, one of which will be snared with leased access users in accordance with federal
law, to be used exclusively by the Grantor and shared and the cities of Livermore, Pleasanton, and San Ramon.
The Grantor, in conjunction with the cities of Pleasanton, Livermore, and San Ramon shall designate one of the
three PEG channels to be shared channel with leased access programming in accordance with federal law.
Grantor agrees to allow Franchisee to place leased access programming on the shared channel, using any time
slots not used by the cities.
Section 8
As a part of the transfer, TCIC, on behalf of the Franchisee, agrees and acknowledges that: a) this approving
agreement is not a new franchise agreement, the granting of a franchise, or the renewal of the existing franchise,
but rather is exclusively an agreement to the change of control of the Franchisee, and neither affects nor
prejudices in any way the Grantor's rights thereunder; and b) that compliance with the Franchise, as of the date of
the closing of the Transactions, is neither commercially impracticable as the term is used in Section 625 (f) of the
Cable Communications Policy Act of 1984 and/orthe Cable Television Consumer Protection and Competition Act
of 1992 (collectively the "Cable Act") nor economically infeasible upon the closing of the change of control based
on (1) any and all debt service incurred, or to be incurred, to directly or indirectly finance the change of control, or
(2) any return on equity made, or to be made, based upon the equity portion of the financing relating to the change
of control.
.
Section 9
TCIC agrees that the Grantor's approval of the change of control is not to be construed by TCIC as a rebuttal of
the presumption that goodwill should be disallowed from the rate base for the purpose of any proceeding to
calculate or determine any regulated rate subject to Grantor's jurisdiction.
Section 10
This Agreement shall become effective on the date that control of the Franchisee is transferred from Viacom Inc.
to TCIC.
AGREED BY:
City of Dublin
TCI Communications, Inc.
Signature:
Signature:
Name:
Name:
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TItle:
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Date:
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