HomeMy Public PortalAbout1999_09_14_r288 Authorizing Transfer of Cable TV Franchise from Benchmark to AdelphiaSubstitute (w)
RESOLUTION NO.
A RESOLUTION:
PRESENTED September 14, 1999
99-288 ADOPTED September 14, 1999
AUTHORIZING THE TRANSFER OF A CABLE TELEVISION
FRANCHISE FROM BENCHMARK ACQUISITION FUND I, L.P. d/b/a
CABLEVISION OF LOUDOUN TO ADELPHIA COMMUNICATIONS
CORPORATION
WHEREAS, Benchmark Acquisition Fund I, L.P., d/b/a Cablevision of Loudoun
("Franchisee"), owns, operates, and maintains a cable television system ("System") in the Town of
Leesburg, Virginia (the "Franchising Authority") pursuant to Ordinance 80-0-6 adopted April 9,
1980 establishing the Cable Television Regulations of the Town, the Franchise Agreement and
Ordinance authorized October 14, 1980, and Resolution 93-120, Approving Consent to Transfer
the CATV Franchise to Benchmark Acquisition Fund I, L.P., adopted on June 22, 1993; and
WHEREAS, Franchisee, as the current authorized holder of the Franchise, has advised the
Franchising Authority that it has entered into an agreement to transfer the Franchise, including all
right, interest and obligations of the Franchisee under the Franchise subject to, among other
considerations, any required approval of the Franchising Authority with respect thereto; and
WHEREAS, the Franchise requires that prior to such transfer, the Town must grant its
prior written consent thereto; and
WHEREAS, Benchmark Acquisition Fund I, L.P. and Adelphia Communications
Corporation submitted a written Application (the "Application") on May 24, 1999, requesting
consent by the Town to the transfer of the Franchise from Benchmark Acquisition Fund I, L.P. to
Adelphia Communications Corporation and paid the required application fee; and
WHEREAS, the Town incurred expenses by virtue of the transfer of the Franchise from
Benchmark Acquisition Fund I, L.P. to Adelphia Communications Corporation; and
WHEREAS, the Town has identified certain possible deficiencies with respect to the past
performance of Benchmark Acquisition Fund I, L.P.; and
WHEREAS, the Town has determined that it is appropriate to grant its consent to the
transfer of the Franchise pursuant to the transaction described in the Application, and to ensure
the Town's rights will be adequately protected.
NOW THEREFORE, be it resolved by the Town Council of the Town of Leesburg,
Virginia:
SECTION I. The Town hereby consents to the transfer of the Franchise from
Benchmark Acquisition Fund I, L.P., d/b/a Cablevision of Loudoun to Adelphia Communications
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A RESOLUTION: AUTHORIZING THE TRANSFER OF A CABLE TELEVISION FRANCHISE
Corporation pursuant to the conditions described in the Application, that such consent to transfer
is granted subject to the following conditions all of which have been agreed to by Benchmark
Acquisition Fund I, L.P. and Adelphia Communications Corporation:
(a) That Adelphia Communications Corporation assumes all obligations and liabilities
of the Franchisee under the Franchise Agreement, this Transfer Resolution, the Cable Television
Ordinance of the Town, any covenant, condition and agreement, including, without limitation, all
obligations, if any, of the Franchisee as are currently required to have been performed but have
not been performed.
(b) That the transfer described in paragraph (a) of this Section shall not release
Benchmark Acquisition Fund I, L.P. from any obligations or liabilities under the Franchise
Agreement and Cable Ordinance arising prior to the consummation of the Transaction.
(c) That the transfer approval shall not in any way waive, diminish or otherwise affect
adversely any right that the Town has, may have, or may at any time or in any manner
subsequently acquire, with respect to any matter, including, without limitation: the right of the
Town to require compliance with the terms of the Franchise and to conduct any franchise fee
audit or review and order payment of unpaid franchise fees; and the right of the Town to review
Benchmark Acquisition Fund I, L.P.'s past compliance with the Franchise.
(d) Further, this consent shall not in any way waive, diminish or otherwise affect
adversely any right the Town would have had with respect to any matter including, without
limitation: any renewal of the Franchise; the Town's right to consider pre-transfer breaches in any
renewal; and any right of the Town to compensation or other remedies in respect to alleged prior
breaches of the Franchise or any other prior commitment made regarding the performance under
the Franchise, had the transfer or the Town's consent to the transfer of the Franchise pursuant to
the Application never occurred. All such rights referenced in this paragraph are expressly
reserved by the Town.
(e) Further, this consent shall not in any way waive, diminish or otherwise affect
adversely any right the Town would have had with respect to past and current regulation of
rates and any rights of subscribers had the transfer or the Town's consent to the transfer of the
Franchise pursuant to the Application never occurred.
(f) That Adelphia Communications Corporation provide at least the same level of
public access and local origination equipment, facilities and staffing, and customer service as
Benchmark Acquisition Fund I, L.P. has during the year prior to the effective date of this Transfer
Resolution.
(g) That Adelphia Communications Corporation maintain a customer service center
within the corporate limits of the Town of Leesburg.
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A RESOLUTION: AUTHORIZING THE TRANSFER OF A CABLE TELEVISION FRANCHISE
(h) That, as part of the upgrade of the cable television system, Adelphia
Communications Corporation will connect cable plant and provide free drops and standard
service to all Town buildings not currently connected to the cable television system.
(i) That Adelphia Communications Corporation continue the practice of Benchmark
Acquisition Fund I, L.P., d/b/a/Cablevision of Loudoun of attending all meetings of the Leesburg
Cable TV Advisory Commission and providing monthly operations reports.
(j) That Adelphia Communications Corporation agrees to abide by the Federal
Communications Commission regulations regarding political candidates, the fairness doctrine, and
political editorials.
(k) That Adelphia Communications Corporation agrees to pay franchise fees equal to
five percent (5%) of the Franchisee's gross receipts, or the maximum allowable rate by the FCC,
from all sources attributable to the operation of the cable television system within the Town,
including but not limited to premium and pay-per-view services, advertising, leased access, lump
sum connection fees, revenue derived from home shopping services, and revenue derived from
services such as Internet or other cable tv broadband services as defined by the FCC.
(1) That Adelphia Communications Corporation agrees that the signal quality of the
access channels and access channel origination connections shall at least meet all FCC technical
specifications and use its best efforts to respond to any signal quality problems on the access
channels.
(m) That Benchmark Acquisition Fund I, L.P. agrees to reimburse the Town for costs
involved in reviewing and approving the transfer up to a limit of $7,500.00, no later than thirty
(30) days after the receipt of a bill from the Town.
(n) That Benchmark Acquisition Fund I, L.P. and Adelphia Communications
Corporation agree that Benchmark Acquisition Fund I, L.P.'s and Adelphia Communications
Corporation's cost of compliance with this Transfer Resolution and the conditions to the Town's
consent shall not constitute or be an offset to franchise fees or be passed on, directly or indirectly,
to subscribers or otherwise affect subscriber rates.
(o) That Benchmark Acquisition Fund I, L.P. and Adelphia Communications
Corporation shall transfer the Franchise as specified in the Application, within six (6) months of
the adoption of this Kesolution.
(p) That in lieu of providing activation of a coaxial cable institutional network,
pursuant to Section 13 of the Franchise, Adelphia Communications Corporation agrees to
construct for the Town, a fiber optic institutional network comprised of eight (8) single mode
or multimode fibers, at the option of the Town, which will be connected to the following
buildings.
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A RESOLUTION: AU2TIORIZING THE TRANSFER OF A CABLE TELEVISION FRANCHISE
Connection from Town Government Center to:
Loudoun County Government Center;
Leesburg Public Safety Center;
Ida Lee Recreational Center and Administration Building;
Thomas Balch Library;
Water Treatment Plant;
Water Pollution Control Facility;
Leesburg Airport; and
Public Works Warehouse and Maintenance Facility.
Adelphia Communications Corporation agrees that it will construct such institutional
network at its own cost and shall not deduct the cost of construction from the franchise fee or
pass the cost through to subscribers.
Adelphia Communications Corporation shall own the institutional network and agrees
not to charge .the Town for the use (video, voice, data, and other institutional applications)
during the term of the current Franchise and any renewal thereof which immediately succeeds
the existing Franchise. The Town may have any network or service connected to the fiber
optic institutional network. Adelphia agrees to construct the fiber optic institutional network
within three (3) years of the date of the adoption of this Transfer Agreement. The Town
agrees the provision of such fiber optic network by Adelphia Communications Corporation
will be sufficient to deem Adelphia Communications Corporation to be in compliance with
Section 13 of the Franchise.
(q) The Town of Leesburg and Adelphia Communications Corporation agree that the
above fiber optic institutional network will satisfy the Town regarding the Town's Request for
Renewal Proposal institutional network requirements.
The Town understands that the institutional network to be constructed by Adelphia will
not be used to compete with Adelphia or Adelphia-owned companies. It is further understood by
the Town that the uses for such an institutional network shall be for governmental and educational
purposes only.
(r) That, irrespective of this Transfer Agreement, the Town of Leesburg and Adelphia
Communications Corporation will be undertaking renewal negotiations, and agree that the Town
makes no commitment regarding a renewal term and that Adelphia Communications Corporation
seeks a ten (10) year renewal term.
SECTION II. In the event of any breach of any of the terms or conditions of this Transfer
Resolution or any persistent failure to comply with any term or condition of this Transfer
Resolution, which breach or persistent failure shall continue for more than 30 days after written
A RESOLUTION: AUTHORIZING THE TRANSFER OF A CABLE TELEVISION FRANCHISE
notice from the Town, then: (a) the Town may declare that this Transfer Resolution shall be null
and void, and the consent granted herein shall be deemed to have been denied; and (b) such
breach or failure shall constitute a substantial breach of the Franchise and the 30-day cure.period
described above shall satisfy the cure period and shall entitle the Town to all rights and remedies
under the Franchise for such a breach and under applicable law.
SECTION III. The Town Manager is directed to inform Benchmark Acquisition Fund I,
L.P., and Adelphia Communications Corporation of the adoption of this Resolution in writing by
furnishing them with executed copies of this Resolution authorizing the transfer of the cable
television Franchise for the Town of Leesburg from Benchmark to Adelphia.
SECTION IV. Adelphia Communications Corporation shall file with the Town Manager
any time at~er the adoption of this Resolution, but in no event later than within thirty (30) days
after consummation of the sale, transfer or assignment, an unconditional Acceptance of the terms
of this Resolution.
SECTION V. The transfer of the Franchise to Adelphia Communications Corporation will
become effective upon the filing of the Acceptance referenced above and the approval as to legal
form by the Town Attorney.
PASSED this 14th day of September , 1999.
~fies E. Clem, Mayor
Town of Leesburg
ATTEST:
Clerk of Council
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