HomeMy WebLinkAboutResolution 63-2000 ,
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RESOLUTION NO. 63-00
RESOLUTION OF THE CITY OF BROOKINGS, SOUTH DAKOTA, APPROVING
TI�TRANSFER OF TI�FRANCHISE AND CABLE TELEVISIONSYSTEM OF
SATELLITE CABLE SERVICES, INC. d/b/a BROOKINGS CABLEVISION TO MEDIACOM
LLC.
WHEREAS, Satellite Cable Services, Inc. d/b/a Brookings Cablevision("Franchisee")
owns, operates, and maintains a cable television system("System")in the City of Brookings,
South Dakota("Franchise Authority"), pursuant to a cable television franchise("Franchise"), and
Franchisee is the duly authorized holder of the Franchise;
WHEREAS, on August 2, 2000, Franchisee and Mediacom Minnesota LLC, a Delaware
Limited Liability Company("Transferee"), entered into an Asset Purchase Agreement
("Agreement") pursuant to which the System and Franchise will transfer("Transfer") from
Franchiseeto Transferee;
WI�REAS, Franchisee and Transferee have requested the Franchise Authority's consent
to the Transfer in accordance with the Franchise requirements and have filed an FCC Form 394
with the Franchise Authority; and
WHEREAS, the Franchise Authority has reviewed the qualifica.tions of the Transferee and
finds it to be a suitable transferee;
NOW THEREFORE BE IT RESOLVED BY THE FRANCHISE AUTHORITY AS
FOLLOWS:
SECTION 1. The Franchise Authority consents to the Transfer in accordance with the
terms of the Franchise.
SECTION 2. The Franchise Authority confirms that (a)the Franchise was properly
granted or transferred to Franchisee; (b)the Franchise is cunently in full force and effect, and will
expire on May 30, 2003, subject to options in the Franchise, if any, to e�end such term; (c)the
Franchise supercedes all other agreements between the parties; (d)the Franchise represents the
entire understanding of the parties and the Franchisee has no obligations to the Franchise
Authority other than those specifically stated in the Franchise; and (e)Franchisee is materially in
compliance with the provisions of the Franchise and there exists no fact or circumstance known to
the Franchise Authority which constitutes or which, with the passage of time or the giving of
notice or both, would constitute a material default or breach under the Franchise or would a11ow
the Franchise Authority to cancel or terminate the rights thereunder.
SECTION 3. Transferee may transfer the Franchise and the System, or control related
thereto to any entity controlling, controlled by, or under common control with Transferee. The
Franchise Authority acknowledges that any such transfer does not trigger any right it may have to
exercise any first purchase right or other right to acquire the system.
' -2- SEr'rEMBER 5,2000
2. Technical Qualifications. Technical qualifications include consideration the
experience with similax projects, experience and strength of management including cable
television, telecommunications, and financial, experience and efficiency of staffing, adequary
', of system design to meet the city's needs, and parmers/vendors.
3. Financial Qualifications. Financial qualifications include general financial strength,
corporate ownership, structure, organization, willingness apparent to guaranty obligations,
references, willingness to pay application fee, willingness to provide construction bond,
willingness to provide performance bond, evidence of availability of funds for development
construction and opexation of system, the sources of funding, commitment of funds to this
project, the strength of any partners or vendors having an ownership or share in the
ownership or operation.
' ' Steven J. Britzman
Attorney at Law
319 Fifth Avenue Telephone (605)697-9058
Brookings, South Dakota 57006 Facsimile(605)697-9060
Memorandum
To: Mike Williams
From: Steven J. Britzman, City Attorney
Date: September 5, 2000
Re: Cable Television Transfer Resolution
I have reviewed FCC Form 394, Application for Franchise Authority Consent to
Assignment or Transfer of Control of Cable Television Franchise, with attachments,
together with the proposed Resolution.
The Form does not provide specific information about the actual transferee,
Mediacom Minnesota LLC, however it does provide sufficient information about its
pazent company to assure us that the parent of the transferee has the technical
qualifications, experience and expertise required to provide cable service during the
remaining years of the current franchise. We will have a very good opportunity to
evaluate performance over the next 3 years as we prepare to issue a new franchise.
The proposed Resolution is acceptable and may be submitted to the Council for
approval. With respect to the law governing cable television franchise transfers, the City
of Brookings, as a franchising authority, may not "unreasonably refuse to award a
franchise". A franchising authority may evaluate the legal qualifications, technical
qualifications and financial qualifications, all of which are covered in the FCC Form 394.
An excerpt of the definitions of legal, technical and financial qualifications is attached for
your information. The source of this information is a paper entitled "Municipal
Franchising of Telecommunications and Broadband Network Providers", written by
Adrian E. Herbst and Daniel Vogel, and presented at the Annual Conference of Municipal
Lawyers I recently attended. Adrian Herbst is a nationally recognized expert on these
issues.
C. LEGAL,TECHNICAL AND FINANCIAL(?UALIFICATIONS
1. Legal Qualifications. Legal qualifications concern the organization and whether or
not it is legally formed and authorized to do business in the state, and questions concerning
the background and experience of the applicant with respect to complaints, violations, or
other matters that may positively or adversely affect these qualifications. Legal qualifications
also considers the applicant's compliance with law, its intent not to "flip the system," and its
record of ineeting federal, state, and local requirements.
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• , SECTION 4. The Franchise Authority consents to and approves the assignment,
mortgage, pledge, hypothecation, or other encumbrance, if any, of the Franchise, the System, or
assets relating thereto, as collateral for a loan.
SECTION 5. The Franchise Authority waives any consent requirements that may be
triggered in the Franchise, local ordinance or state law by the trading stock on a stock exchange
or regularly on the over-the-counter markets, to the e�ent that there is not an actual change in
the ultimate working control of Transferee.
SECTION 6. This Resolution shall be deemed effective upon the date of enactment.
SECTION 7. The Franchise Authority releases Franchisee, effective upon the Closing
Date of the Agreement, from all obligations and liabilities under the Franchise that accrue on and
after the Closing Date; provided that the Transferee shall be responsible for any obligations and
liabilities under the Franchise that accrue on and after the Closing Date.
SECTION 8. This Resolution sha11 have the force of a continuing agreement with the
Franchisee and Transferee, and the Franchise Authority sha11 not amend or otherwise alter this
Resolution without the consent of Franchisee and Transferee.
Passed and approved this 11�`day of September, 2000.
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Mayor
ATTEST:
I, the undersigned, being the duly appointed, qualified and acting Clerk of the City of Brookings,
South Dakota, hereby certify that the foregoing Resolution No. 63-00 is a true, correct and
rate copy as duly and lawfully passed and adopted by the governing body of the City of
�m �`»��P$Qa ' gs on the 11�' day of September, 2000.
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