Loading...
HomeMy WebLinkAbout25F - ADELPHIA COMM. FRANC. EXT REQUEST FOR COUNCIL ACTION ~ITY COUNCIL MEETING DATE: AUGUST 2, 2004 TITLE: ADELPHIA COMMUNICATIONS FRANCHISE EXTENSION ~ ~ CLERK OF COUNCIL USE ONLY: {)Aa CITY MANAGER APPROVED 0 As Recommended 0 As Amended 0 Ordinance on 1 sl Reading 0 Ordinance on 2nd Reading 0 Implementing Resolution 0 Set Public Hearing For CONTINUED TO FILE NUMBER RECOMMENDED ACTION Adopt Resolution No. 2004-060 approving the Sixth Amendment to Cable Television Franchise Agreement and authorize the City Manager and Clerk of the Council to execute same on behalf of the City. DISCUSSION ~he City's current extension with Adelphia will expire on August 20, 2004. The Adelphia bankruptcy proceedings have prevented any substantive negotiations on renewal to proceed. The 6-month extension will allow the bankruptcy to be completed and additional time to permit a thorough renewal process. During the extension, all existing cable services will remain in place, and staff will continue to monitor and document Adelphia's performance. The City Manager and City Attorney are authorized to make non- substantive changes to the agreement deemed necessary to carry out the intent of this action. FISCAL IMPACT fiscal impact associated with this action. Jon lp" Ribble Executive Director Parks, Recreation and Community Services . 25F-1 RESOLUTION NO. 2004-060 jwf (07/26/04) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE SIXTH AMENDMENT TO THE CABLE TELEVISION FRANCHISE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND ADELPHIA CABLEVISION OF SANTA ANA, LLC BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. That certain Sixth Amendment to Cable Television Franchise Agreement, in the form presented to this meeting, is hereby approved. Section 2. The City Manager is authorized and directed to execute said Sixth Amendment on behalf of the City, and the City Clerk is directed to attest thereto. Section 3. The City Manager or his designee shall continue to administer the terms of the Cable Television Franchise Agreement on behalf of the City, as modified by the Sixth Amendment. Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of ,2004. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney 12097-0002\ 784596v1.doc -1- 25F-2 . AYES: Councilmembers NOES: Councilmembers ABSTAIN: Council members NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2004-060 to be the original resolution adopted by the City Council of the City of Santa Ana on Date: . . 12097 -0002\784596v1.doc Clerk of the Council City of Santa Ana -2- 25F-3 SIXTH AMENDMENT TO CABLE TELEVISION FRANCHISE AGREEMENT THIS SIXTH AMENDMENT TO THE CABLE TELEVISION FRANCHISE AGREEMENT, effective as of the date specified below in Section 5, is entered into by the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("Grantor"), and Adelphia Cablevision of Santa Ana, LLC, dba Adelphia Cable Communications, a Delaware Limited Liability Company ("Grantee"). RECITALS: A. Grantee currently operates and maintains a cable television system in the City of Santa Ana under the authority of Sections 1300 et seq. of the Santa Ana City Charter, former Article II of Chapter 15 of the Santa Ana Municipal Code (now uncodified), entitled "Community Antenna Television Systems," former Article III of Chapter 15 of the Santa Ana Municipal Code (now uncodified), entitled "Cable Television Subscriber Protection," and Ordinance No. NS-1628, as adopted on May 3, 1982, which granted a nonexclusive franchise to Group W Cable, Inc., a New York corporation. The terms of that nonexclusive franchise were set forth in that certain agreement dated June 21, 1982, entitled "An Agreement between the City of Santa Ana and Group W Cable, Inc. to Use the Streets and Public Ways within the City of Santa Ana for the Operation of a Cable Television System for Fifteen Years under Certain Terms and Conditions and Fixing an Effective Date." This Agreement was later modified by a First Amendment to Agreement dated February 7, 1983, by a Second Amendment to Agreement dated December 28, 1984, by a Third Amendment to Franchise Agreement dated March 6, 1989, by a Fourth Amendment to Cable Television Franchise Agreement dated June 12,2002, and by a Fifth Amendment to Cable Television Franchise Agreement dated February 18, 2003. B. Under the provisions of paragraph (d) of Section 13 of the Third Amendment to Franchise Agreement dated March 6, 1989, the City consented to the transfer of the cable television franchise from Group W Cable, Inc. to Comcast Cablevision of Santa Ana, Inc., a Delaware corporation. C. By letter dated January 31, 1997, and in accordance with Section 2.1 ("Grant") of the Agreement, as amended by the Second Amendment to Agreement dated December 28, 1984, the Grantee's predecessor-in-interest exercised its option to extend the initial IS-year term of the franchise for an additional five years by giving written notice by certified mail to the Grantor's City Manager. The Agreement, as previously extended by the Fifth Amendment, is now scheduled to terminate at midnight on August 20, 2004. D. In a transaction that was consummated on December 31,2000, Comcast Cablevision of Santa Ana, Inc. was converted to a Delaware limited liability company, and all of the ownership interests in Comcast Cablevision of Santa Ana, LLC were transferred by its parent corporation, Comcast Cablevision Corporation of California, to a wholly-owned subsidiary of the ultimate parent corporation, Adelphia Communications Corporation. This transaction, which 12097-0002\784594 v2.doc 1 25F-4 . . . involved a change of control, did not require the prior consent of the Grantor under Section 1300 of the Santa Ana City Charter. E. On February 15, 2001, a Certificate of Amendment to Certificate of Formation was filed by Comcast Cablevision of Santa Ana, LLC with the Delaware Secretary of State. This Certificate of Amendment changed the name of Comcast Cablevision of Santa Ana, LLC to Adelphia Cablevision of Santa Ana, LLC. F. On June 25, 2002, Grantee, as well as its parent company (Adelphia Communications Corporation) and various affiliated entities, filed voluntary petitions to reorganize under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the Southern District of New York. The debtors are currently operating their respective businesses as debtors-in-possession and have the right to enter into this Sixth Amendment in the ordinary course of business. G. Grantor and Grantee desire to enter into this Sixth Amendment for the purpose of extending their respective rights and obligations under the Agreement for an additional period of time, not to exceed six months from its current termination date of August 20, 2004. THE PARTIES AGREE AS FOLLOWS: Section 1. Section 2.4 ("Duration") of Section 2 ("Grant of Franchise") of the Agreement is amended in its entirety to read as follows: "2.4 Duration. Notwithstanding any provisions to the contrary set forth in this Agreement, the term ofthe franchise is extended for an additional period oftime not to exceed six months from its current expiration date of August 20, 2004. The franchise will terminate upon the first to occur of (i) the effective date of an agreement renewing the Cable Television Franchise Agreement; or (ii) midnight on February 20,2005. Renewal, if any, will be in accordance with then applicable law." Section 2. Except as modified in this Sixth Amendment, either expressly or by necessary implication, the terms and conditions of the Agreement remain in full force and effect. Both parties reserve all rights under applicable provisions of the Cable Act, including Sections 626 and 635. Nothing herein shall be deemed or construed as a waiver, release, or surrender of any right that either party may have under the Cable Act or any other applicable law. Section 3. Grantee's execution of this Sixth Amendment will not constitute either an assumption or a rejection by Grantee of the Agreement, nor a waiver of Grantee's rights under Section 365 of the U.S. Bankruptcy Code (11 U.S.C. §365). Section 4. This Sixth Amendment will be legally binding upon the Grantor and Grantee from its "Effective Date," as specified in Section 6 below, and upon any assignee or 12097-0002\784594 v2.doc 2 25F-5 transferee ofthe Agreement that may hereafter be authorized by the Grantor, or by the U.S. Bankruptcy Court, or both. Section 5. It is the intention ofthe parties that the Grantee will first execute this Sixth Amendment and then submit it to the Grantor. The Grantor's City Clerk will insert the execution date in all counterparts of this Sixth Amendment, attest to the execution of those counterparts by a duly authorized officer of the Grantor, and transmit one fully executed counterpart to the Grantee. The "Effective Date" is the date on which this Sixth Amendment is signed on behalf of the Grantor. TO EFFECTUATE THIS SIXTH AMENDMENT, each ofthe parties has caused this Sixth Amendment to be signed by its duly authorized representative as of the date set forth below each authorized signature. ATTEST: "GRANTOR" CITY OF SANTA ANA City Clerk APPROVED AS TO FORM: By: City Manager Date: City Attorney "GRANTEE" ADELPHIA CABLEVISION OF SANTA ANA, LLC, By: (Authorized Officer) (Title) Date: APPROVED AS TO FORM: Corporate Counsel 12097-0002\ 784594v2.doc 3 25F-6