HomeMy WebLinkAbout3601 ResolutionRESOLUTION NO. 3 Loo I
A RESOLUTION of the City of Pasco approving a Transfer Agreement
governing the terms related to transfer of the City's cable television system
franchise from Franchisee Falcon Video Communications, L.P. to Comcast
Communications and authorizing the City Manager to execute the agreement.
WHEREAS, Falcon Video Communications, L.P. ("Franchisee") currently operates a
cable system under the terns and conditions of a cable franchise (the "Franchise Agreement")
granted by the City pursuant to Ordinance, as lawfully amended from time to time in accordance
within the provisions in such documents (collectively "Franchise Documents") and applicable
law; and
WHEREAS, Charter Communications, Inc. ("Charter") is the ultimate parent company
of Franchisee (Franchisee and Charter may be referred to collectively herein as "Companies");
and
WHEREAS, pursuant to a multi -step transaction (the "Proposed Transaction") described
in the Comcast/Charter Transaction Agreement dated as of April 25, 2014 between Charter and
Comcast (the "Transaction Agreement"), the cable television system located within the City
("System") currently operated by the Franchisee will become owned by a wholly-owned
subsidiary of Comcast; and
WHEREAS, if consummated, the Proposed Transaction will result in a merger under
which Franchisee will become COO Transfers, LLC through an internal Charter restructuring
and immediately thereafter COO Transfers, LLC will become a wholly owned subsidiary of
Comcast (the "Transaction") ("COO" as used herein refers to the entity as owned by Comcast
Corporation after the closing of the Transaction); and
WHEREAS, the Franchise Documents provide that prior approval of the City is required
for a transfer of the System; and
WHEREAS, on June 19, 2014, the Companies and Comcast filed with the City an FCC
Form 394 (the "Transfer Application") pursuant to the federal Cable Act and FCC regulations,
and have requested that the City consent to the Proposed Transaction in accordance with the
terms of the Franchise Documents, and all applicable federal, state, and local law; and
WHEREAS, pursuant to the federal Cable Act and FCC regulations, the City is required
to act on the Transfer Application within 120 days of the City's receipt of a complete and
accurate Transfer Application unless the parties agree to an extension of that time period; and
WHEREAS, the City responded by letter to the Companies' and Comcast's Transfer
Application requesting answers to a series of questions; and
WHEREAS, the Companies and Comcast responded to the City's letter on July 28,
2014; and
WHEREAS, the 120-day deadline for the City to act on the Transfer Application would
be October 17, 2014, if the application were deemed complete, however Comcast and Charter
issued an extension of the deadline to November 19; and
WHEREAS, the City has reviewed the Transfer Application and examined the financial,
technical, and legal qualifications of Comcast in accordance with applicable laws and the
Franchise Documents; and
WHEREAS, the Companies, COO, and Comcast have agreed that, following the
completion of the Proposed Transaction, COO as the new franchisee will continue to be bound
by and comply with, and be liable for any past failure of Franchisee to comply with all of the
commitments, duties and obligations under the Franchise Documents and all applicable federal,
state and local laws, to the maximum extent required by law; and
WHEREAS, the foregoing agreement is embodied in a Transfer Agreement by and
among the City, the Companies, Comcast, and COO; and
WHEREAS, based upon the parties' Transfer Agreement and the City's review and
examination, and in reliance upon the representations, documents, and information provided by
the Companies and Comcast in connection with the Proposed Transaction and supplemental
information, the City is willing to grant its consent to the Transaction.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of the Pasco:
Section 1 The Transfer Application and the Change of Control of the Franchisee as
described above is hereby approved as of November 19, 2014, subject to the following
conditions:
A. The Companies and Comcast must execute the Transfer Agreement in
substantially the form attached hereto and deliver the executed copy of the Transfer Agreement
to the City Clerk no later than 5:00 p.m. PST on December 1, 2014.
B. Guarantors must execute a Guaranty in substantially the form attached hereto
and deliver the executed copy of the Guaranty to the City Clerk no later than 5:00 p.m. PST on
December 1, 2014.
C. The Proposed Transaction must be consummated on or before June 30, 2015,
and on terms that do not materially and adversely affect the City and that are not in any material
respect different from those described in the Transfer Agreement, the Transfer Application and
other related materials provided to the City by the Companies and Comcast, otherwise the
consent provided herein shall by voidable at the option of the City.
Section 2 If the foregoing conditions are satisfied, the Transfer Application and the
Transfer of the Franchisee shall be deemed approved in accordance with applicable law. If any
of the aforementioned conditions is not satisfied, the Transfer Application and Transfer of the
Franchisee shall be deemed denied as of 5:00 p.m. PST on November 18, 2014 under applicable
law.
Cable TV Transfer Agreement - Charter to Comcast
Page 2
Section 3 The City Manager is authorized to execute the Transfer Agreement.
ADOPTED by the City Council of the City of Pasco at a regular meeting on the T
day of %
V,64 2014
CIITTfYj, OFFPPA�SC�OO: /
Matt Watkins, Mayor
AS TO FORM:
Leland B. Kerr, City Attorney
Cable TV Transfer Agreement — Charter to Comcast
Page 3
TRANSFER AGREEMENT
This Agreement is made this day of AI01/ 2014, by and among:
1.1.1. City of Pasco, Washington, a Municipal Corporation ("City");
1.1.2. Falcon Video Communications, L.P. ("Franchisee");
1.1.3. Charter Communications, Inc. ("Charter");
1.1.4. COO Transfers, LLC ("COO"), as used herein refers to the entity as owned by
Comcast Corporation after the closing of the Transaction;
1.1.5. Comcast Corporation ("Comcast'); and
1.1.6. Franchisee and Charter may be referred to collectively herein as "Companies."
RECITALS
WHEREAS, Franchisee currently operates a cable system under the terms and
conditions of a cable franchise (the "Franchise Agreement') granted by the City pursuant to
Ordinance , as lawfully amended from time to time in accordance within the provisions in
such documents (collectively, the "Franchise Documents") and applicable law; and
WHEREAS, Charter is the ultimate parent company of Franchisee; and
WHEREAS, pursuant to a multi -step transaction (the "Proposed Transaction") described
in the Comcast/Charter Transaction Agreement dated as of April 25, 2014, between Charter and
Comcast (the "Transaction Agreement'), the cable television system located within the City
("System") currently operated by the Franchisee will become owned by a wholly-owned
subsidiary of Comcast; and
WHEREAS, if consumrnated, the Proposed Transaction will result in a merger under
which Franchisee will become COO through an internal Charter restructuring and immediately
thereafter COO will become a wholly owned subsidiary of Comcast (the "Transaction"); and
WHEREAS, the Franchise Documents provide that prior approval of the City is required
for a transfer of the System; and
WHEREAS, on June 18, 2014, Charter and Comcast filed with the City an FCC Form
394 (the "Transfer Application") pursuant to the federal Cable Act and FCC regulations, and
have requested that the City consent to the Proposed Transaction in accordance with the terms of
the Franchise Documents, and all applicable federal, state, and local law; and
WHEREAS, the City and Franchisee have been engaged in an extended franchise
renewal process that is not yet complete; and
WHEREAS, the City and Franchisee have agreed to extend the term of the Franchise to
September 30, 2015; and
WHEREAS, the Companies and Comcast have agreed that, following the completion of
the Proposed Transaction, COO will continue to be bound by and comply with, and be liable for
any past failure by Franchisee to comply with, all of the commitments, duties and obligations
under the Franchise Documents and all applicable federal, state and local laws, to the maximum
extent required by law; and
WHEREAS, Comcast has agreed to guaranty the performance of COO as the new
franchisee under the Franchise; and
NOW, THEREFORE, in consideration of the City's consent to the Transfer, and subject
to the terms and conditions of this Agreement and of the Citys Resolution granting consent to
the Transfer, THE PARTIES DO HEREBY AGREE as follows:
1. TRANSFER OF THE FRANCHISE
1.1 The City's consent to the Transfer Application and the transfer of control of the
Franchise in connection with the Proposed Transaction, through the adoption of the Transfer
Resolution in substantially the form attached hereto (the "Transfer Resolution"), is a condition
precedent to this Transfer Agreement becoming effective. This Transfer Agreement will be
voidable if the Proposed Transaction is not consummated by June 30, 2015, or if the City
Council does not consent to the Transfer Application and the transfer of control of the Franchise
by adopting the Transfer Resolution.
2. AFFIRMATION OF FRANCHISE OBLIGATIONS
2.1 Comcast and COO hereby accept, acknowledge and agree that, after
consummation of the Proposed Transaction, COO as the new franchisee will be bound by and
responsible for all the commitments, duties, and obligations, past, present, continuing and future,
embodied in the Franchise Documents, whether those commitments, duties or obligations arose
before or after the date of consummation of the Proposed Transaction or the date that the City
Council adopts the Transfer Resolution, to the maximum extent permitted by law, and that
neither consummation of the Proposed Transaction nor the City's approval of the Transfer
Application will have any effect on these obligations.
2.2 Comcast and COO agree that neither consummation of the Proposed Transaction
nor the City's approval of the Transfer Application shall in any respect relieve COO as the new
franchisee of any responsibility it may have for past acts or omissions, known or unknown,
including any liability for any and all previously accrued but unfulfilled obligations of the
Franchisee to the City under the Franchise Documents and applicable law, for all purposes,
including but not limited to review of past performance for purposes of determining whether the
Franchise should be renewed. Neither consummation of the Proposed Transaction nor this
Transfer Agreement shall modify the rights of the Companies and/or the City under or related to
the Franchise Documents as compared to the rights that could have been exercised by the
Franchisee and/or the City had the Proposed Transaction not occurred. This Agreement shall
have no effect on the rights of the City to ensure compliance, or cure of non-compliance, by
Franchisee or COO as the new franchisee under the Franchise Documents, and the Companies
and Comcast shall not raise a claim to the contrary.
Transfer Agreement - Charter to Comcast
Page 2
2.3 The City agrees that this Agreement is without prejudice to or waiver of the
Franchisee's or COO's rights to defend any claim of default or non-compliance with the
Franchise Documents on the basis that such default or non-compliance has not occurred, or has
been cured or from raising any other defense.
3. ADDITIONAL CONDITIONS
3.1 In the event the Proposed Transaction described in the Transfer Application does
not close by June 30, 2015, or closes on terms that are in any material respect different from the
terms disclosed to the City in writing, then any City consent to the Transfer Application shall be
voidable by the City and of no force or effect if so voided, and the Transfer Application shall be
deemed to have been timely denied if so voided.
3.2 The Companies, COO, and Comcast waive any and all claims that they may have
that any denial of the Transfer Application that may result from Subsection 3.1 fails to satisfy the
deadlines established by applicable law including, without limitation, claims based on, arising
out of, or relating to the time limits set forth in 47 USC § 537, as amended, or 47 CFR §
76.502(a), and agree that they shall be deemed to have agreed to an extension of time for the City
to act on the Transfer Application within the meaning of 47 CFR § 76.502(c) as required to make
any denial effective.
4. ADDITIONAL AGREEMENTS OF THE PARTIES
4.1 The City reserves all rights not expressly granted in this Agreement. In particular
and without limitation:
4.1.1 Neither this Agreement, nor any other action or omission by the City at or
before the execution of this Agreement, shall be construed to grant the City's consent to any
future transfer of the Franchise, and/or change in ownership and/or control of the Franchisee, or
to mean that the City's consent to any such future transfer is not required.
4.1.2 The City's consent to the Transfer Application shall not constitute a
waiver or release of any of the City's rights or claims with respect to Franchisee's compliance
(or non-compliance) with the terms, conditions, requirements and obligations set forth in the
Franchise Documents, whether arising before or after the date of the Transfer Resolution or
consummation of the Proposed Transaction. The City's approval of the Transfer Application
shall in no way be deemed an agreement or concession by the City that Franchisee is in
compliance with all of its obligations under the Franchise Documents.
4.1.3 The City, in collaboration with the City of Richland (collectively
"Cities'l, has been engaged in a franchise renewal process with the Franchisee pursuant to 47
USC 546 (a) — (h). On July 31, 2013, the Cities proceeded with the Cable Act's formal renewal
process and issued an RFRP. On December 30, 2013, the Franchisee submitted a formal renewal
proposal in response to the RFRP issued by the Cities ("Renewal Proposal"). In order to permit
further time for informal renewal negotiations, the parties entered into an agreement tolling the
formal renewal process, which expires on September 30, 2015.
4.1.4 Comcast and COO shall not contend that the City is barred, by reason of its
consent to the Transfer Application, from considering or raising any claim based on Franchisee's
past or present failure to comply with any term or condition of the Franchise Documents or
applicable law, including, without limitation, any unpaid franchise fees lawfully due the City
from Franchisee, any known and unresolved consumer complaints, and any construction,
Transfer Agreement — Charter to Comcast
Page 3
security or facility requirements of the Franchise Documents that are unsatisfied, and regardless
whether any such claim arose before or after the date of the Transfer Resolution or
consummation of the Proposed Transaction.
4.1.5 Comcast and COO agree to assume all risks associated with any future non-
renewal or non -extension or other potential termination of the Franchise, and further agree that
they will not raise any claim or defense that they are entitled to renewal or protected from
revocation by the City's approval of the Proposed Transaction.
4.1.6 Except as otherwise expressly provided for herein, this section 4 is without
prejudice to the Companies' and Comcast's rights to defend any claim of default or non-
compliance with the Franchise Documents on the basis that such default or non-compliance did
not occur, or has been cured, or from raising any other defense.
5. RATES
5.1 Comcast and COO further agree that neither the Proposed Transaction, the
Transfer Application consent process, the City's Resolution granting conditional consent to the
Proposed Transaction, nor this Transfer Agreement, standing on its own or collectively, provides
any basis for increasing the amounts paid by subscribers through cost pass-through as so-called
"external costs" or as new franchise requirements, and neither the City's consent process nor the
City Council resolution granting conditional consent, standing on its own or collectively,
provides any basis for increasing the amounts paid by subscribers in any manner.
6. REPRESENTATIONS AND WARRANTIES
6.1 The Companies, Comcast, and COO acknowledge the City's representation that
its consent to the Transfer Application is made in reliance upon the representations, documents,
and information provided by the Companies and Comcast in connection with the Transfer
Application and supplemental information thereto.
6.2 Comcast, COO, and the City represent and warrant that the Proposed Transaction
is not based on any representation by the City (other than as provided by federal and state law)
that the Franchise will be renewed or extended; that Comcast and COO assume all risks
associated with any future non -renewal or non -extension of the Franchise; and that the
Companies and Comcast and COO retain all rights, claims, and defenses they or their
predecessors may have regarding the operation of the cable system under applicable law,
including under 47 USC § 546.
6.3 Comcast represents and warrants that the Proposed Transaction will not in any
respect adversely affect COO's ability to meet the lawful and valid requirements of the Franchise
Documents.
6.4 Comcast and COO agree they will not file a request under Section 625 of the
Cable Act with the City seeking modification of any existing franchise requirements as a result
of any increase in debt service, debt service coverage or equity requirements incurred in
connection with the Proposed Transaction.
Transfer Agreement - Charter to Comcast
Page 4
6.5 The Companies, Comcast, and COO acknowledge that the City has not
undertaken a franchise compliance audit as a part of its review of the Transfer Application and
that there may be issues related to Franchisee's possible non-compliance with the Franchise
Documents that are not known to the City at this time. Pursuant to Section 2.1 of this
Agreement, Comcast, COO, and the Companies agree that COO as the new franchisee shall be
bound by and liable for all the commitments, duties, and obligations, past, present, continuing
and future, of Franchisee embodied in the Franchise Documents, to the maximum extent
permissible by law, and that the City's action to approve the Transfer Application shall not be
interpreted as, or deemed to be, a waiver of the City's rights to enforce the Franchise Documents,
regardless whether any claim by the City relating to any failure by Franchisee to comply with the
Franchise Documents arose before or after the date of this Agreement.
7. INDEMNIFICATION
7.1 The Companies agree to indemnify and hold the City harmless against any loss,
claim, damage liability or expense (including, without limitation, reasonable attorneys' fees)
proximately caused by any representation or warranty made by the Companies herein which
proves to be untrue or inaccurate in any material respect.
7.2 Comcast and COO agree to indemnify and hold the City harmless against any
loss, claim, damage liability or expense (including, without limitation, reasonable attorneys'
fees) proximately caused by any representation or warranty made by Comcast or COO herein
which proves to be untrue or inaccurate in any material respect.
8. BREACHES
8.1 Any breach of this Transfer Agreement shall be deemed a breach of the Franchise
Documents.
9. MISCELLANEOUS PROVISIONS
9.1 Effective Date: This Agreement shall be effective and binding upon the parties
upon closing of the Proposed Transaction.
9.2 Entire Agreement: This Agreement constitutes the entire agreement of the parties
with respect to the matters addressed herein. No statements, promises or inducements
inconsistent with this Agreement made by any party shall be valid or binding, unless in writing
and executed by all parties. This Agreement may only be modified by written amendments
hereto signed by all parties.
9.3 Binding Acceptance: Any purported assignment of this Agreement or the rights
or privileges of any party hereunder is void without the express written consent of the signatories
hereto. Subject to the foregoing, this Agreement shall bind and benefit the parties hereto and
their respective and permitted heirs, beneficiaries, administrators, executors, receivers, trustees,
successors and assigns, and the promises and obligations herein shall survive the expiration date
hereof.
Transfer Agreement — Charter to Comcast
Page 5
9.4 Voluntary Agreement: This Agreement is freely and voluntarily agreed to by
each party, without any duress or coercion, and after each party has consulted with its counsel.
Each party has carefully and completely read all of the terms and provisions of this Agreement.
Neither the Companies nor Comcast, nor any of their affiliates, nor the City, will take any action
to challenge any provision of this Agreement; nor will any of them participate with any other
person or entity in such action.
9.5 Drafting: This Agreement is a product of common negotiation among the parties
and shall not be construed against any party on grounds relating to drafting, revision, review or
recommendation by any agent or representative of such party.
9.6 Counterparts: This Agreement may be executed in several counterparts, each of
which when so executed shall be deemed to be an original copy, and all of which together shall
constitute one agreement binding on all parties hereto, notwithstanding that all parties shall not
have signed the same counterparts.
9.7 Governing Law: This Agreement shall be governed in all respects by the law of
the State of Washington.
9.8 Captions and References: The captions and headings of sections throughout this
Agreement arc intended solely to facilitate reading and reference to the sections and provisions
of this Agreement. Such captions shall not affect the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Transfer Agreement as
of the day and year first above written.
APPROVED:
City of Pasco
Dave Zab)QL Citi anager
AT EST
i
D to ark, City Clerk
APPROS TO FORM
Leland Kerr, City Attorney
Falcon Video Communications, L.P
Charter Communications, Inc.
COO Transfers, LLC.
Com least /Corporation
U�IV'"
Title: aR?MIR R. BLOCK
a:c[ ,ice cess en
Transfer Agreement — Charter to Comcast
Page 6
FRANCHISE GUARANTY
Comcast Corporation ('Comcast'), a Pennsylvania corporation, is delivering this
Franchise Guaranty in connection with, and inconsideration for the City of 's
("City") conditional consent to the assignment and transfer of control of the entity
("Franchisee") holding the Cable Franchise Agreement, dated as of 4 ao , as amended
and as may hereinafter be amended or renewed (the "Franchise"), with the City. Comcast
hereby guarantees to the City that: (i) the Franchisee will timely comply with the
Franchise and all applicable city, state and federal laws, regulations, codes, standards and
administrative or judicial decisions ("Applicable Laws"); (ii) the Franchisee will pay all
fees, taxes, damages, judgments, costs or expenses ("Liabilities") owed to the City as a
result of Franchisee's failure to timely comply with the Franchise or Applicable Laws;
(iii) in the event the Franchisee fails to comply with or satisfy any such obligations,
Comcast will promptly cause Franchisee to cure such nonperformance or pay such
Liabilities, or Comcast will itself make good on any such nonperformance or Liabilities
beyond the ability or willingness of the Franchisee to cure or pay, including without
limitation any and all past, present and future Liabilities under the Franchise, in the same
capacity as the Franchisee; and (iv) Comcast will not interfere directly or indirectly with
the Franchisee's ability to comply, nor will it directly or indirectly cause Franchisee to
fail to comply, with the Franchise or Applicable Laws.
EXECUTED as of the \"'" day of rl2014.
COMCAST CORPORATION
By: WA,
Name:
Title: ARTHUR R, BLOCK
Senior Vice President
Address:
1701 JFK Boulevard
Philadelphia, PA 19103
Attention: General Counsel
Cornmc,nweo\�ti
"STA -TE -OF
) SS.
COUNTY OF
The foregoing Franchise Guaranty was acknowledged before me this ��'" day of
h4cvv ,`mss 2014, by the 4 V' 4 ' S of Comcast Corporation, to be the
act and deed of Comcast Corporation.
Seal
CONIMONwEALTK OF PENNSYLVANIA
NOTARIAL SEAL
Mary M. Cassidy, NotarY.Public
City of Philadelplria, P6iladelplua Cowry
M commission ex fres A ri106, 2017
Notary Pubbc