O-42-02 06/24/02VILLAGE OF LEMONT
ORDINANCE NO. \-i'a'L a"
AN ORDINANCE CONSENTING TO THE CHANGE OF CONTROL OF THE CABLE
TELEVISION FRANCHISEE FROM MEDIA ONE OF NORTHERN ILLINOIS
TO AT &T COMCAST CORPORATION
ADOPTED BY THE
PRESIDENT AND BOARD OF TRUSTEES
OF THE VILLAGE OF LEMONT
This 24th day of June , 2002
Published in pamphlet form by
authority of the President and
Board of Trustees of the Village of
Lemont, Counties of Cook, Will, and
DuPage, Illinois this 24th day
of June , 2002.
ORDINANCE `9;%1
ORDINANCE OF THE VILLAGE OF LEMONT, ILLINOIS
CONSENTING TO THE CHANGE OF CONTROL OF THE CABLE TELEVISION
FRANCHISEE FROM MEDIA ONE OF NORTHERN ILLINOIS
TO AT &T COMCAST CORPORATION
WHEREAS, Media One of Northern Illinois (the "Franchisee ") is the holder of a
franchise (the "Franchise ") to provide cable television service in the City/Village of (the
"Municipality ") pursuant to a franchise agreement between the Franchisee and the Municipality,
dated June 22, 1998 (together with any amendments, the "Franchise Agreement ") and the
Municipality's Ordinance No. 0 -55 -98 (the "Cable Ordinance "). The Franchise Agreement
and the Cable Ordinance are collectively referred to as the "Franchise Documents "; and
WHEREAS, the AT &T Corp. ( "AT &T) and Comcast Corporation ( "Comcast ") jointly
submitted to the Municipality their application on Federal Communications Commission
( "FCC ") Form 394, dated February 25 , 2002 (the "Application "), requesting that the
Municipality approve the Change of Control of the Franchisee from AT &T to AT &T Comcast
Corporation ( "AT &T Comcast ") as more fully described therein (the "Change of Control ").
WHEREAS, pursuant to the information requests of the Municipality, the Franchisee
supplemented the Application with additional documents and information; and
WHEREAS, the Franchisee has made various representations in the Application and
supplemental information thereto and
WHEREAS, the Municipality and the Franchisee have negotiated an agreement regarding
certain conditions of this consent (the "Change of Control Agreement "), a copy of which is
attached as Exhibit A and is incorporated by reference.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL/VILLAGE
BOARD OF THE CITY/VILLAGE OF Lemont Cook, Wi 11 & DuPage - Counties
ILLINOIS, as follows:
Section 1. Consent; Conditions.
A. In reliance upon the representations and information submitted in the
Application and supplemental information thereto and subject to the conditions set forth
in the Change of Control Agreement, the Municipality hereby consents to the Change of
Control of the Franchisee from AT &T to AT &T Comcast as described in the Application
and supplemental information thereto; and
ARTICLE I. INCORPORATION OF RECITALS.
1.1 Part of Agreement. The above Recitals are incorporated into and
constitute a part of this Change of Control Agreement.
ARTICLE II. AFFIRMATION OF FRANCHISE OBLIGATIONS.
2.1 Affirmation. The Franchisee acknowledges and agrees that: (a) after the
Change of Control, the Franchisee will continue to be bound by all of its commitments,
duties and obligations under the Franchise Documents; and (b) neither the Change of
Control nor the Municipality's approval of the Change of Control shall in any respect
relieve the Franchisee of any responsibility it may have for past acts or omissions,
whether known or unknown, relating to the Franchise. The Franchisee hereby reaffirms
that it will be liable for, and accept the consequences of, any responsibility it may have
for such acts and omissions, including for any accrued but unfulfilled obligation to the
Municipality under the Franchise Documents and applicable law, to the same extent as if
the Change of Control had not taken place.
ARTICLE III. ADDITIONAL AGREEMENTS OF THE PARTIES.
3.1 Municipalities Reliance on Representations. The Franchisee
acknowledges the Municipalities' representation that its consent to the Change of Control
is made in reliance on the information provided by the Franchisee, AT &T Corp. and
Comcast Corporation in connection with the Application and supplemental information
thereto.
3.2 Compliance With Franchise. The Franchisee agrees that it will continue to
be bound by the lawful obligations of this Change of Control Agreement and the
Franchise Documents.
3.3 No Waiver. The Franchisee agrees that by its consent to the Change of
Control and execution of this Change of Control Agreement, the Municipality is not
waiving any of its rights or prospective rights with respect to the enforcement or
obtaining redress with respect to Franchisee's compliance with the terms, conditions,
requirements and obligations set forth in the Franchise Documents, including without
limitation:
(a) Renewal of Franchise. The Franchisee acknowledges and agrees
that the Municipality has made no agreement hereby that the Franchise will be renewed
or extended; any renewal or extension of the Franchise shall be pursuant to applicable
federal, state and local laws, and the Franchise Documents.
(b) Qualifications. The Municipality's consent to the Change of
Control is made without prejudice to, or waiver of, any right of the Municipality to fully
investigate and consider Franchisee's financial, technical and legal qualifications and any
other lawful considerations during any pending or future franchise renewal or transfer
process.
B. The Municipality's consent is subject to the Franchisee executing and
delivering to the Municipality a Change of Control Agreement in the form of the attached
Exhibit A by no later than 60 days from the date the Municipality sends a certified copy
of this consent Ordinance to the Franchisee; and
C. By this consent, the Municipality does not agree to any renewal or extension
of the Franchise. Any pending or future renewal or extension of the Franchise shall be
subject to applicable federal, state and local laws, and the Franchise Documents; and
Section 3. Delegation. The Mayor/Village President is hereby authorized and directed to
execute and deliver the Change of Control Agreement in substantially the form of the attached
Exhibit A.
Section 4. Severability. If any portion of this ordinance or application thereof is found
to be unenforceable such provision shall not effect any other application thereof or the
enforceability of the remaining provisions herein to the extent permitted by law.
Section 5. Effective Date. This ordinance shall be effective upon passage, adoption and
approval by the City Council/Village Board and Mayor/Village President.
SO ORDAINED THIS 24 DAY OF
ILLINOIS.
June
, 2002, AT Lemont
AYES:t aLer
NAYS:
ABSENT: &42Yu,
ATTEST:
CITY/VILLAGE CLERK
APPROVED:
CHANGE OF CONTROL AGREEMENT
Agreement among the Village/ City of LEMONT
"Municipality ") and Media One of Northern Illinois ie "Franchisee ").
, Illinois (the
A. The Franchisee is the holder of a franchise to provide cable service in the
Municipality (the "Franchise "), subject to the provisions of a franchise agreement between the
Municipality and the Franchisee dated June 22 , 1998 , (together with any amendments,
the "Franchise Agreement ") and subject to Ordinance No. o- 55 -98>f the Municipality (the Cable
Ordinance "). The Franchise Agreement and the Cable Ordinance are collectively referred to as
the "Franchise Documents."
B. AT &T Corp. and Comcast Corporation jointly submitted to the Municipality their
application on Federal Communications Commission ( "FCC ") Form 394, dated
2/25 , 2002, (the "Application ") requesting that the Municipality approve the
change of control of the Franchisee from AT &T Corporation to AT &T Comcast Corporation
(the "Change of Control "). The Franchisee desires that the Municipality grant that approval.
C. Pursuant to the request of the Municipality, the Franchisee has provided
supplemental information in support of the Application, including representations that, as a result
of the Transaction, the Change of Control is not expected to result in an increase in cable
television subscriber rates in the Municipality or reduce the quality of customer service or cable
service in the Municipality.
D. Pursuant to the proposed Change of Control, as described in the Application and
the supplemental information thereto, the ultimate parent company of the Franchisee will change
from AT &T Corp. to AT &T Comcast Corporation, but Franchisee will remain the holder of the
Franchise upon consummation of the Change of Control.
E. The Municipality has enacted or will enact a Resolution granting its approval of
the Change of Control subject to the condition that the parties enter into this Change of Control
Agreement.
F. The Municipality has determined that, in light of the facts available to it, it would
not be appropriate to approve the Change of Control absent certain agreements by the
Franchisee, including certain promises to ensure compliance with the provisions of the Franchise
Documents.
NOW THEREFORE, the Municipality and the Franchisee agree as follows:
(c) Future Transfers /Assignments. The Franchisee acknowledges and
agrees that, by its consent to this Change of Control, the Municipality does not approve
of or consent to: (1) any other transfer or change of control of the Franchisee, (2) any
pending or future transfer of the Franchise, or (3) any pending or future assignment or
delegation of any of the Franchisee's rights or duties under the Franchise, to the extent
that any such transfer, assignment or change of control would be subject to the consent of
the Municipality pursuant to applicable federal, state, or local law, including the
Franchise Documents.
(d) Past Defaults. The Franchisee shall not contend that the
Municipality is barred, by reason of its consent to the Change of Control, from
considering or raising any claim based on the Franchisee's past or present failure to
comply with any term or condition of the Franchise Documents or any other agreements
between the Franchisee and the Municipality or any of its departments or applicable law,
including, without limitation: any unpaid franchise fees due the Municipality from the
Franchisee, any unpaid support for public, educational, or governmental access channels,
any known and unresolved consumer complaints, any construction, security or facility
requirements of the Franchise Documents that are unsatisfied, and any unpaid pole rental
fees or charges due Municipality or any of its departments.
(e) Franchisee's Compliance. The Municipality's consent to the
Change of Control shall in no way be deemed a representation by the Municipality that
the Franchisee is in compliance or not in compliance with its obligations under the
Franchise Documents or any other agreements between the Franchisee and the
Municipality or any departments thereof. The Municipality makes no representation
concerning the Franchisee's status of compliance.
(f) Defenses. Except as otherwise provided for herein, this section is
without prejudice to AT &T Comcast's and Franchisee'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 been cured or from raising any other defense.
ARTICLE IV. MISCELLANEOUS.
4.1 Binding Agreement. This Change of Control Agreement shall be binding
upon and inure to the benefit of the parties and their anticipated and permitted successors
and assigns.
4.2 Assignment. The rights and obligations of any party under this Change of
Control Agreement may not be assigned or delegated without the prior written approval
of the other party, except as otherwise specifically provided for herein.
4.3 Waiver. No waiver of any provision of this Change of Control Agreement
shall be deemed to be a waiver of any other provision of this Change of Control
Agreement nor shall any waiver be deemed to be a continuing waiver except as otherwise
expressly stated in writing by the waiving party.
4.4 Severability. If any provision of this Change of Control Agreement or any
application thereof shall be held to be unenforceable, the Change of Control Agreement
shall be construed to excise the unenforceable provision and remain enforceable for all
other applications thereof, and the rights and obligations of the parties shall be construed
and enforced accordingly.
4.5 Governing Law. This Change of Control Agreement shall be governed by
the internal laws (without reference to conflict of laws) of the State of Illinois.
4.6 Drafting. This Change of Control 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.
4.7
Agreement.
Time of the Essence. Time is of the essence to this Change of Control
4.8 Authority. Each signatory to this Change of Control Agreement
represents that he or she has the authority to enter into this Change of Control Agreement.
4.9 Effective Date. This Change of Control Agreement may be executed in
multiple counterparts and shall, be deemed effective as of the closing of the Change of
Control transaction. Each counterpart shall be deemed an original, but all separate
counterparts shall constitute the same agreement.
Date: '2-`/'°�
VILLAGE /CITY /TOWN OF
Date: [FRANCHISEE]
Its J,«A Rf4s-caLA,•,4-
(Title)
By: , Its
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