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HomeMy WebLinkAbout2905 RESOLUTION NO. 2905 A RESOLUTION of the City Council of the City of Bremerton, Washington, approving the proposed assignment and conveyance of the cable television system franchise from Charter Communications Holding Company's to Wave Division IV, LLC and further approving the sale and conveyance of the membership and other ownership interests in Wave Division IV, LLC to WaveDivision Holdings, LLC. WHEREAS, pursuant to Ordinance No. 4635, with an effective date of December 9, 1998, the City granted to Falcon Video Communications, L.P. ("Falcon") the authority to install, construct, operate and maintain a cable television communications system within the City (the "Franchise"); and WHEREAS, Falcon subsequently was acquired by Charter Communications Holding Company, LLC ("Charter", Falcon and Charter being referred to herein as Charter) with the consent of the City as expressed in Resolution No. 2724, dated August 18, 1999; and WHEREAS, Charter entered into a purchase and sale agreement, dated May 29, 2003 (the "Purchase Agreement") with WaveDivision Holdings, LLC, a Delaware limited liability company ("Wave Holdings"), for the sale of Charter's cable television system serving the City and adjacent areas, pursuant to which (i) the Franchise will be assigned and conveyed from Charter to WaveDivision IV, LLC, a Washington limited liability company ("Wave IV"), which as of the date of such assignment and conveyance will be wholly-owned by Charter, and (ii) immediately following such assignment and conveyance of the Franchise, Charter will sell and convey all of the membership and other ownership interests in Wave IV to Wave Holdings (the "Transaction"); and WHEREAS, Charter and Wave Holdings request that the assignment and conveyance of the Franchise from Charter to Wave IV and the sale and conveyance of the membership and other ownership interests in Wave IV to Wave Holdings immediately thereafter, as described above, be approved; WHEREAS, Wave IV and Wave Holdings have demonstrated the financial, technical and legal qualifications to operate the cable system serving the City and it is in the best interests of the City and its citizens to consent to the foregoing assignment and sale; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: SECTION1. The City hereby consents to the assignment and conveyance of the Franchise from Charter to Wave IV and the sale and conveyance of the membership and other ownership interests in Wave IV to Wave Holdings immediately thereafter, as described above. 1 Cable Franchise Transfer SECTION2. The City hereby consents to and approves Wave IV's grant of a security interest in all of the franchisee's fights, powers and privileges under the Franchise and Wave 1V's grant ora security interest in all of its other properties to such lender or lenders as may be designated by Wave IV for financing purposes from time to time, and to Wave Holdings' grant ora security interest in its rights in and to Wave IV to such lender or lenders as may be designated by Wave Holdings for financing purposes from time to time. SECTION& Except as expressly described herein, the assignment and conveyance of the Franchise and the sale and conveyance of the membership and other ownership interests in Wave IV shall not alter, affect or otherwise change any of the terms or conditions of the Franchise. SECTION4. In connection herewith, the City certifies to each of Charter, Wave IV and Wave Holdings that: (a) The Franchise was duly and validly issued by the City, and upon its assignment and conveyance to Wave IV, the duly authorized franchisee will be Wave IV. (b) The Franchise has not been amended other than by Resolution No. 2724, is in full force and effect as of the date hereof, and is valid and enfomeable in accordance with its terms. (c) The City acknowledges that the cable system has been upgraded to the standards set forth in Section 4.3 of the Franchise and, accordingly, the expiration date of the Franchise has been extended for a period of two years in accordance with Section 2.2 so that the Franchise will not expire until December 9, 2008. (d) To the City's knowledge, no event of default under the Franchise, and no event which could become an event of default with the passage of time or the giving of notice, or both, has occurred and is continuing as of the date hereof. (e) The City acknowledges receipt ora duly completed FCC Form 394 in connection with the Transaction. (f) The City acknowledges that it has not requested the franchisee to pay a franchise fee to the City pursuant to Section 11.1 of the Franchise. SECTION 5. The Franchise, Resolution 2724, and this Resolution were and are made, passed or adopted in accordance with all applicable notice and procedure requirements under the laws of the Washington of Washington, and with all applicable notice and procedure requirements prescribed by the City, and do not conflict with the laws, ordinances, resolutions and other regulations of the City, as presently in effect or as the same were in effect at the time the particular action was taken. SECTION6. The City acknowledges that Wave Holdings and Wave IV shall only be responsible for obligations of the franchisee under the Franchise that accrue from and after the date of the closing of the Transaction and the assignment of the Franchise to Wave IV. SECTION 7. The City acknowledges that Charter shall remain responsible for obligations of the franchisee under the Franchise that relate to the period prior to the date of the 2 Cable Franchise Transfer closing of the Transaction and the assignment of the Franchise to Wave IV, but that Charter will be released and discharged by the City from any obligations of the franchisee under the Franchise that relate to the period from and after the date of the closing of the Transaction and the assignment of the Franchise to Wave IV. SECTIONS. Effective Date. (1) This Resolution shall not be effective until the City Receives payment of $2,000.00 for the cost of assessing the legal, financial and technical qualifications of the proposed Transferee in order to determine whether the City would consent to the proposed franchise transfer. This requirement is made pursuant to section 2.7 of the cable television franchise. (2) This Resolution shall not be effective until accepted in writing by Wave IV. The acceptance, which shall be contingent upon final closing of the Transaction, shall be in the form attached hereto as Exhibit A. (3) Within thirty (30) days of final closing of the Transaction, Wave IV shall file with the Finance Director such written acceptance of this Resolution in the form attached hereto as Exhibit A. (4) A failure on the part of Wave IV to file such written acceptance and documentation within such time shall be deemed an abandonment and rejection of the rights and privileges conferred hereby and this Resolution shall thereupon be null and void. Such acceptance shall be unqualified and shall be construed to be an acceptance of all the terms, conditions and restrictions contained in this Resolution. $ECTIONg. SeverabiliO;. If any one or more sections, subsections, or sentences of this Resolution are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Resolution and the same shall remain in full force and effect. PASSED by the City Council of the City of Bremerton, Washington this 24th day of September, 2003. CAROL AP, ENDS, Council President APPROVED AS TO FORM: ATT..F,~ ~ ..~ R~G~IR A. LUBO~O-'VICH, C~-. -/~THLE~I~QI~OSlt.~E'Y, Ig~ty C~ RSLEGAL~Rcsolutions\Cable Franchise Transfer. DOC 3 Cable Franchise Transfer ~DMVgd~DDV