HomeMy WebLinkAbout02-161RESOLUTION ~o. 02-1 61
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF ST. LUCIE COUNTY,
FLORIDA, APPROVING THE CHANGE OF
CONTROL OF TCI OF NORTHERN NEW JERSEY,
INC., TO AT&T COMCAST.
WHEREAS, TCI of Northern New Jersey, Inc., ("Franchisee"), a subsidiary of
AT&T Broadband, LLC , is duly authorized to operate and maintain a cable system in
St. Lucie County, Florida ("County") pursuant to a franchise (the "Franchise") granted by
the County; and
WHEREAS, pursuant to the Separation and Distribution Agreement between
AT&T Corp. ("AT&T") and AT&T Broadband Corp. and the Agreement and Plan of
Merger between AT&T and Comcast Corporation, a newly formed entity, AT&T
Comcast Corporation ("AT&T Comcast"), will assume ultimate parent company
ownership and control of the Franchisee (the "Transaction"); and
WHEREAS, on or about March 8, 2002, the County received an FCC 394 and an
Application for County consent by the Board of County Commissioners to the proposed
change of control of the Franchisee; and
WHEREAS, pursuant to Ordinance No. 98-09 of the County ("Ordinance") and
the franchise issued under Resolution 98-68 (the "Franchise Agreement"), no such
change of control may occur without prior approval of the Board of County
Commissioners of St. Lucie County, Florida; and
WHEREAS, the County has required that the Franchisee fulfill its obligations,
pursuant to the Ordinance and Franchise Agreement, and provide information on the
proposed transaction including details on the legal, financial, technical and other
qualifications of AT&T Comcast and on the potential impact of the transfer on service;
and
WHEREAS, under FCC Rules, 47 C.F.R. Section 76.502, the County has 120
days plus any extensions thereto 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
WItEREAS, Franchisee has represented to the County that it has taken all actions
and implemented all practices necessary to insure that Franchisee is in compliance with
all applicable provisions of the Ordinance and Franchise Agreement; and
WHEREAS, the County has required written acceptance from Franchisee and
written acceptance by AT&T Comcast of the terms and conditions of this Resolution as a
condition precedent to adoption of this Resolution (attached hereto as Exhibit A); and
WHEREAS, in the event the Transaction is not consummated by March 31, 2003
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 unless
otherwise extended by agreement of the parties.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF ST. LUCIE COUNTY, FLORIDA:
Section 1. The foregoing recitals are approved and incorporated herein by
reference.
Section 2. To the extent required, the County hereby consents to the change
in ultimate control of the Franchisee.
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 applicable terms of the current Ordinance and Franchise Agreement.
Section 4. That the consent granted herein does not and should not be
construed to constitute a waiver of any fight of the County or Franchisee under applicable
law, including but not limited to, the applicable provisions of the Ordinance or the
Franchise Agreement; and further, this consent shall not prejudice the County's rights
with respect to the enforcement, renewal or transfer of the Franchise Agreement, whether
the non-compliance arose before or after the Transaction.
Section 5. That the consent granted is conditioned upon execution and
delivery of, within twenty (20) days of enactment of this Resolution, the (a)
Acknowledgment attached hereto as Exhibit A; (b) Franchisee's assurances as set forth in
Exhibit B attached hereto; (c) the letter agreement referencing payment to the County
attached hereto as Exhibit C; and (d) the Performance Guaranty Agreement in the form
attached as Exhibit D.
Section 6. That this Resolution shall have the force and effect of continuing
the Franchise Agreement between the Franchisee and the County (as the Franchise
Authority), to the extent consistent with the applicable provisions of the Ordinance, the
Franchise Agreement and Exhibits A, B, C and D attached hereto.
Section 7. That the County hereby reserves all of its fights pursuant to
Federal, State and including but not limited to, (a) the fight to consider violations of the
Franchise by the Franchisee, either prior to or subsequent to the Transaction; (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; and (c) the enforcement of the applicable terms of the current Ordinance and the
Franchise Agreement
Section 8. That the consent herein granted expressly does not waive and
expressly reserves to the County its rights to fully exercise all applicable legal rights and
authority with regard to Franchisee in connection with any use of the County's rights-of-
way not authorized by the County, including but not limited to, levying fines or
instituting litigation for trespass and ejectment.
Section 9. That the consent herein granted is an express non-waiver and
reservation of the Connty's rights and authority against Franchisee for any Franchise
violations that may exist, including but not limited to, those in connection with any
unauthorized use of Franchisee's facilities, by any entity in any way affiliated with
Franchisee, its affiliates, parent or subsidiary.
Section 10. That the consent granted herein is subject to AT&T Comcast
obtaining all required federal and state approvals, licenses, and permits required with
respect to the Transaction.
Section 11. This Ordinance shall become effective upon the date of its
adoption herein.
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DULY PASSED AND ADOPTED THIS
ATTEST:
DEPUTY C~
I"~*'~DAY OF JULY, 2002.
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ATTORN~
EXHIBIT A
UNCONDITIONAL ACCEPTANCE
OF TERMS OF
RESOLUTION NO.
BEFORE ME, appeared the undersigned authority who being duly sworn upon his oath deposes
and states that:
1. Affiants are, respectively, the Senior Vice President of AT&T Broadband, LLC
("AT&T Broadband") and the person authorized to execute this document on behalf of TCI of
Northern New Jersey, Inc., (the "Franchisee") and , the
of AT&T Comcast Corporation ("AT&T Comcast"), and the person
authorized to execute this document on behalf of AT&T Comcast, for the Change of Control of the
Franchisee, as set forth on the FCC Form 394 received by St. Lucie County, Florida (the "County"), on
or about March 8, 2002 (the "Change of Control").
2. Affiants are submitting this Affidavit as a condition precedent to the approval of the
Application for Change of Control of the Franchisee from AT&T Corp. to AT&T Comcast.
3. Franchisee affirms that it is and will continue to be bound by and shall assume all the
lawful and applicable terms and conditions of the cable television Ordinance 98-09 (the "Ordinance"),
the current franchise agreement between the Franchisee and the County (the "Franchise Agreement")
and any lawful amendments and agreements related thereto (the Ordinance, Franchise Agreement and
such amendments and agreements are collectively referred to herein as the "Franchise") and the
Resolution of the Board of County Commissioners of the County approving the Change of Control of
the Franchisee from AT&T Corp. to AT&T Comcast.
4. AT&T Comcast hereby attests and acknowledges that the Change of Control will not
affect, diminish, impair or supercede the binding nature of the existing valid ordinances, resolutions
and agreements applicable to operation of the cable system in the County, including but not limited to,
the Ordinance, Franchise Agreement and any guarantees provided herein.
5. Franchisee hereby acknowledges and agrees that the following issues concerning
Franchisee's compliance with the Ordinance and Franchise Agreement shall be resolved as set forth
herein:
A. Franchisee and AT&T Comcast recognize and acknowledge that the financial
qualifications of AT&T Comcast are an important and relevant consideration of the County for the
evaluation of the proposed Change of Control, and in particular, the assurance that sufficient financial
resources are available to Franchisee to meet the obligations of the Franchisee under the terms of the
Franchise. Accordingly, Franchisee or AT&T Comcast represent or warrant as follows:
(i) AT&T Comcast and Franchisee represent and warrant that the Change of
Control will not have any adverse financial effect on the System, such that Franchisee's financial
resources necessary to comply with the terms and conditions of the Franchise are adversely affected.
AT&T Comcast acknowledges and agrees that from and after the Change of Control it will not take
any action that prevents the Franchisee's full performance of the applicable provisions of the Franchise
and this Unconditional Acceptance.
(ii) Franchisee represents and warrants that after the Proposed Transaction,
Franchisee's financial resources will be such as shall enable it to maintain and operate the System in
compliance with all requirements of the Franchise.
(iii) Franchisee shall provide a Performance Guarantee Agreement in the form
attached hereto from TCI Development LLC.
(iv) AT&T Comcast represents and wan'ants that the costs associated with the
Change of Control shall not result in any increase in subscriber rates. Nothing shall prohibit
Franchisee, however, from taking rate increases in the ordinary course of business in compliance with
local, state and federal laws that are not caused by the costs associated with the Change of Control.
B. (i) Franchisee hereby acknowledges and recognizes that the Ordinance sets forth
the requirement that the Franchisee shall develop written procedures for the investigation and
resolution of all subscribers or County resident complaints, including, but not limited to those
regarding quality of service and equipment malfunction, and that such procedures shall be submitted
for the review and approval by the County Administrator. Notwithstanding the above, on or about
December 21, 2001, Franchisee distributed to its subscribers the AT&T Broadband Policies and
Practices (the "Policies"), which sets forth, in part, policies, complaint procedures and dispute
resolutions for its cable subscribers. Franchisee agrees that within thirty (30) days following adoption
of the Resolution, it will notify, in writing, all subscribers located within the County that Section 10 of
the Policies has been withdrawn (as so amended by such withdrawal of Section 10, the "Amended
Policies").
(ii) The County has reviewed the Amended Policies and, has found them acceptable in
accordance with the requirements of the Ordinance.
(iii) Franchisee hereby acknowledges that this Acceptance does not in any manner diminish
or impair the rights of the County with respect to future violations and remedies available to the
County under the Franchise Agreement or Ordinance and the County hereby waives any liquidated
damages with respect to the alleged violation arising out of the Policies.
(iv) Franchisee hereby agrees that any future revisions of any and all customer service
standards or policies or any such new standards and policies shall be submitted to the County before
distribution to subscribers as required by the applicable provisions of the Franchise.
(v) Franchisee agrees that in the event of a conflict between the Amended Policies and
applicable law, the Franchise Agreement, the Ordinance and applicable law shall control over the
Amended Policies. Franchisee and the County agree that their relationship is governed solely by the
Franchise Agreement and the Ordinance and that the Amended Policies do not apply to the County.
C. (i) Franchisee hereby acknowledges and recognizes that the Ordinance sets forth
the requirement that the Franchisee shall develop written procedures for the investigation and
resolution of all subscribers or County resident complaints, including, but not limited to those
regarding quality of service and equipment malfunction, and that such procedures shall be submitted
for the review and approval by the County Administrator. Notwithstanding the above, on or about
May 21, 2001, Franchisee distributed to its subscribers AT&T Broadband's Risk Assessment and
Deposit Policy (the "Risk Assessment Policy"), which sets forth, in part, AT&T Broadband's intent to
check potential subscribers credit history and implement policies on subscriber security deposits.
Franchisee agrees that within thirty (30) days following adoption of the Resolution, it will notify, in
writing, all subscribers located within the County that the Risk Assessment Policy has been amended
to include non-discriminatory language, as set forth on Attachment 1 hereto ( the "Amended Risk
Assessment Policy").
(ii) The County has reviewed the Amended Risk Assessment Policy and has found it
acceptable in accordance with the requirements of the Ordinance.
(iii) Franchisee hereby acknowledges that this Acceptance does not in any manner diminish
or impair the rights of the County with respect to future violations and remedies available to the
County under the Franchise Agreement or Ordinance and the County hereby waives any liquidated
damages with respect to the alleged violation arising out of the Risk Assessment Policy.
(iv) Franchisee hereby agrees that any future revisions of any customer service standards
and policies shall be submitted to the County before distribution to subscribers as required by the
applicable provisions of the Ordinance.
(v) Franchisee agrees that in the event of a conflict between the Amended Risk Assessment
Policy and applicable law, the Franchise Agreement, the Ordinance and applicable law shall control
over the Amended Risk Assessment Policy. Franchisee and the County agree that their relationship is
governed solely by the Franchise Agreement and the Ordinance and that the Amended Risk
Assessment Policy does not apply to the County.
D. AT&T Broadband and certain of its affiliates and subsidiaries are the subject of a
current investigation and administrative inquiry by the Attorney General of the State of Florida that
may result in legal action against such entities. Franchisee agrees that it shall comply with all federal
and state law, including any decision by the Attorney General of the State of Florida with respect to
consumer protection and arising out of such investigation and inquiry. Franchisee further agrees that
by consenting to the Change of Control, the County shall not have waived any rights it may have to
receive any benefits, for itself or for Franchisee's subscribers in the County, that are determined to be
given by resolution of the Attorney General's investigation, whether through judicial decision,
administrative action, settlement or voluntary agreement ("Resolution"). To the extent that the
Resolution extends to other subscribers or municipalities in Florida, benefits as prescribed by the
Attorney General, resulting out of its current investigation, for such other subscribers or municipalities
shall automatically be made available to the County or Franchisee's subscribers in the County to the
extent that the County or such subscribers have been subject to the same violations.
6. Franchisee shall cooperate in any franchise compliance inquiry, including but not
limited to financial, customer service performance, call center records and financial and technical
audits as specified under the terms and conditions of the Franchise. AT&T Comcast agrees that the
records of the Franchisee, which are required to be maintained and are subject to inspection by the
County, pursuant to the Franchise, shall be subject to inspection regardless of whether such records
are maintained by Franchisee or AT&T Comcast, or any subsidiary or affiliate.
7. Franchisee agrees that the County does not waive any right to require compliance with
the Franchise by Franchisee, whether or not any noncompliance is the subject of this Acceptance and
hereby assumes responsibility for any and all non-compliance under the current Franchise Agreement
and/or the Ordinance, even if such noncompliance is alleged to have occurred prior to the closing of
the merger of AT&T Broadband and Comcast Corporation.
8. Franchisee shall deliver a letter to the County with respect to certain franchise matters.
9. This Exhibit A may be signed in counterparts.
FURTHER AFFIANT SAYETH NAUGHT.
TCI OF NORTHERN NEW JERSEY, INC.
By:
Name:
Title:
STATE OF FLORIDA
COUNTY OF
)
) SS:
)
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
,2002.
day of
My Commission expires:
Notary Public
AT&T COMCAST CORPORATION
By:
Name:
Title:
STATE OF FLORIDA
COUNTY OF
)
) SS:
)
BEFORE ME, the undersigned authority, personally appeared .,
who is known to me personally (or provided proof of idemification) and upon being first duly sworn
acknowledged that he / she executed the foregoing documem freely and voluntarily and for the purpose
therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid this __
,2002.
day of
My Commission expires:
Notary Public
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EXHIBIT D
PERFORMANCE GUARANTY AGREEMENT
ST. LUCIE COUNTY, FLORIDA, a municipal corporation of the State of Florida,
(hereinafter "County"), and TCI DEVELOPMENT LLC, a limited liability
company (hereinafter, "Guarantor") and wholly owned by AT&T Comcast Corporation, on
behalf of itself and Franchisee.
WHEREAS, TCI of Northern New Jersey, Inc., d/b/a AT&T Broadband is the
Franchisee under a Franchise Agreement granted pursuant to Ordinance No. 98-68 and the
documents thereunder (collectively the "Franchise"); and
WHEREAS, at its meeting of July 16, 2002, the County Commission approved the
Change in Control of the Franchisee in adopting Resolution No. ("Change in
Control"); and
WHEREAS, the Consent and Unconditional Acceptance of Change in Control of
Franchisee approved by Resolution No. require Franchisee to fumish a
Guaranty, with an acceptable guarantor securing performance of Franchisee's obligations under
the St. Lucie County, Cable Television Franchise Ordinance, Ordinance No. 98-09
("Ordinance"), Franchise Agreement and any and all agreements related thereto; and
WHEREAS, Guarantor has agreed to deliver this Guaranty in conjunction with the
County's consent to the Change in Control.
NOW, THEREFORE, in consideration of the above recitals, the covenants, and
agreements contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows:
1. The Guarantor, on behalf of itself and Franchisee, (a) guarantees unconditionally
to the County the due and punctual performance by Franchisee of each and every term, promise,
covenant, condition, provision and obligation contained in the Franchise Agreement, the
Resolution approving the Change in Control, the Unconditional Acceptance, the Ordinance and
any and all related agreements and resolutions, except to the extent that any term, promise,
covenant, condition, provision or obligation is unenforceable under applicable law, and (b)
agrees to cause Franchisee to comply with all obligations of the "Grantee" (as defined in the
documents referenced herein) to be performed as provided in the Franchise Agreement and
Ordinance, except to the extent that any term, promise, covenant, condition, provision or
obligation is unenforceable under applicable law.
2. The guarantees set forth in paragraph 1 above shall be effective
contemporaneously with the Change in Control of the Franchisee and shall remain in effect until
the first to occur of, (a) the termination of the Franchise; or (b) the termination, substitution, or
cancellation of this Guaranty upon the County's prior written approval of a substitute guarantor,
which approval shall not be unreasonably withheld.
3. Except as set forth in paragraph 2 above, no termination, amendment, waiver, or
modification of this Guaranty or any of its terms or provisions shall be effective unless it is set
forth in a written instrument signed by the Guarantor and the County.
4. Guarantor covenants and agrees that Guarantor may be joined in any action by the
Franchisee or the County and that recovery may be had against Guarantor in such action without
the County first bringing an action in court against Franchisee. Guarantor also agrees that, in any
jurisdiction, it will be conclusively bound by the judgment in any such action by County against
Franchisee (wherever brought) as if Guarantor were a party to such action, even though
Guarantor is not joined as a party in such action. This Guaranty may be enforced against
Guarantor pursuant to this Section 4 only upon a default by Franchisee; provided that Guarantor
is given prior notice of such breach or default and an opportunity to cure such breach or default
in accordance with the Franchise as if Guarantor was the Franchisee thereunder.
5. This Guaranty shall be deemed to have been made in the State of Florida.
Guarantor consents to the jurisdiction of the courts of the State of Florida or to the United States
District Court, Southem District, for the State of Florida. The rights and liabilities of County and
Guarantor shall be determined in accordance with the laws of the State of Florida.
6. No delay on the part of the County in exercising any power or right hereunder
shall operate as a waiver thereof. The powers and rights granted to County hereunder may only
be waived upon the prior written consent of County, authorized by appropriate municipal action
taken at a regular public meeting of the County Commission of County.
7. If any section, subsection, sentence, clause, phrase, or other portion of this
Guaranty is, for any reason, declared invalid, in whole or in part, by any court, agency,
commission, legislative body, or other authority of competent jurisdiction, such portion shall be
deemed a separate, distinct, and independent portion, and such declaration shall not affect the
validity of the remaining portions hereof, which other portions shall continue in full force and
effect.
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IN WITNESS WHEREOF, the Guarantor on behalf of itself has caused this Guaranty to
be executed under seal by its duly authorized representative of the date first above written.
TCI DEVELOPMENT LLC
(Guarantor)
WITNE S SE S:
(Corporate Seal)
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
STATE OF FLORIDA )
) 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 ., 2002.
WITNESSES:
ST. LUCIE COUNTY, FLORIDA
CHAIRMAN
COUNTY ADMINISTRATOR
ATTEST:
Deputy Clerk
APPROVED AS TO FORM:
County Attorney