HomeMy WebLinkAbout20001979.tiff RESOLUTION
RE: APPROVE APPLICATION FOR RENEWAL OF FRANCHISE AGREEMENT WITH TELE-
VUE SYSTEMS, INC., A SUBSIDIARY OF AT&T CORPORATION
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS,Tele-Vue Systems, Inc., a subsidiary of AT&T Corporation ("AT&T")currently
holds a cable franchise with Weld County("County"), granted by Resolution#850537 on February
20, 1985, with an extension to August 19, 2000,which was granted by Resolution#2000-0423 on
February 14, 2000, and
WHEREAS,AT&T and the County have been engaged in informal renewal negotiations in
accordance with Section 626(h) of Title VI of the Communications Act of 1934, as amended, and
Weld County Ordinances #94, #94-A, and #94-B, and
WHEREAS, negotiations have concluded and AT&T has submitted an application for the
renewal of said franchise including, but not limited to, non-exclusive rights to maintain and improve
from time to time a cable system along the streets, alleys, and public rights-of-way in the County,
and
WHEREAS,after review,the Board deems it in the public interest to approve the application
for renewal of said franchise for a period of 12 years, until August 19, 2012.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Franchise Agreement between the County of Weld, State of Colorado,
by and through the Board of County Commissioners of Weld County, and Tele-Vue Systems, Inc.,
a subsidiary of AT&T Corporation, be, and hereby is, approved and AT&T is authorized to operate
and provide cable services in Weld County under the terms and conditions of Weld County
Ordinances#94, #94-A, and #94-B, and the franchise herein granted, until August 19, 2012.
2000-1979
ORD94
RE: EXTENSION OF FRANCHISE AGREEMENT-TELE-VUE SYSTEMS, INC.,A SUBSIDIARY
OF AT&T CORPORATION
PAGE 2
The above and foregoing Resolution was,on motion duly made and seconded, adopted by
the following vote on the 16th day of August, A.D., 2000.
BOARD OF COUNTY COMMISSIONERS
W LD STY'/ L-Ki4.C-
O
ATTEST: i��I�'•`/� i
✓�"' ' a Barbara J. • meyer, C^iairman
Weld County Clerk to th o• - .Ov
�1881 ,� �$tn►�r 7/1/
1. eile, Pro-Tern
BY:
Deputy Clerk to the =*j � EXCUSED DATE OF SIGNING (AYE)
G e E. Baxter
ED AS T RM: ' ‘
Dale K. Hall
ounty trrley Ahd,mdtir�
Glenn Vaad
2000-1979
ORD94
. , •
AT&T BROADBAND
Tele-Vue Systems, Inc.
CABLE LICENSE RENEWAL
INFORMATION PACKET
August 14, 2000
,,2oOO - /47j
o.ZD ?V
GENERAL PROVISIONS
TERM:
12 years
NON-EXCLUSIVE:
County may grant other cable franchises as appropriate, on equal terms
PAYMENT TO COUNTY:
Provides maximum compensation under law of 5% of gross revenues from cable
services (franchise fee)
INDEMNIFICATION:
Company must fully indemnify the County for all matters under the franchise
conducted by or for the Company
INSURANCE:
Up to $2,000,000 for personal injury or death and property damage
FREE SERVICE:
Free Basic and Expanded Basic to County buildings, K-12 accredited public and
private schools, fire stations, police stations, and public libraries
EMERGENCY ALERT CAPABILITY:
County may provide information and instructions to cable subscribers during
emergencies through the Emergency Alert System
PARENTAL CONTROL DEVICES:
Devices that lock out designated channels are available to subscribers
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a7pan/2-
RATES
AUTHORITY:
County retains full regulatory authority allowed by law
NO DISCRIMINATION:
All rates must be uniform
ENFORCEMENT
TECHNICAL TESTING:
Testing of system performed regularly and may be witnessed by County
VIOLATIONS OF FRANCHISE:
Notice and opportunity to cure
Public hearing
Revocation
RIGHT-OF-WAY USE
REPAIR AND RESTORATION:
Must return both public and private property to original condition following
construction
UNDERGROUNDING:
If utilities are underground, cable must be underground
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aco0i 979
Pursuant to Weld County Ordinances 94, 94-A, and 94-B, a public hearing will be held in the
Chambers of the Board of County Commissioners of Weld County, Colorado, Weld County
Centennial Center, 915 Tenth Street, Greeley, Colorado, at the time indicated below, for
consideration of granting the franchise renewal application of TELE-VUE SYSTEMS, INC., a
subsidiary of AT&T Corp., including non-exclusive rights to further construct or update a cable
television system along the streets, alleys, and public ways of the County.
Application materials may be examined in the office of the Clerk to the Board of County
Commissioners, located in the Weld County Centennial Center, 915 Tenth Street, Third Floor,
Greeley, Colorado.
DATE: August 16, 2000
TIME: 9:00 a.m.
REQUEST: Cable Television Franchise Renewal Application
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
DATED: July 31, 2000
PUBLISHED: August 3, 2000, in the South Weld Sun
cQO00/9�`9
STATE OF COLORADO )
) s.s.
COUNTY OF WELD )
Ruth Pelton-Roby, as manager of Pelton
Publishing Company LLC, being duly "°"`°ol° °"c"�t^B
sworn, states that it is publisher of the
South Weld Sun, a weekly newspaper ontawem to Waa cwnty
in Keenesbur "�'�' 9°A•�^°published gin said County ga-B,a p,bl;c�;ng wn
and State; that said newspaper has a be held in thecwe,,"
general circulation in said County and has Commiswr° or courtly
been continuously and uninterruptedly county C lgo 800ers a Weld
published therein, during a period of at 9 nc«Sne. etc;er
least fifty-two consecutive weeks prior to Golsen°, tr.
the first publication of the annexed notice; ndicated below, ror
that said newspaper is a newspaper consideration of granting
within the meaning of the act of the "e 'tton ofe renewal
SYSTEMS, INC,wa
General Assembly of the State of wpkwtbn a
Colorado, entitled "An Act to regulate the subsidies),of AT&T Corp.,
inpludmg non-esdusive
printing of legal notices and rights toej rcpnsguctor
advertisements," and amendments 'C°ale a cable television
thereto; that the notice of which the system along d p tic ways yetf
alleys,and public of
annexed is a printed copy taken from said the county
newspaper, was published in said Applicaeon ma xas
newspaper, and in the regular and entire beexamined in tlyo, of
issue of every number thereof, once a the Clerk to the Board of
week for / successive weeks; that said County Commissioners,
notice was so published in said located in the Weld County
915
newspaper proper and no in any Centennial
Third Floor,
supplement thereof, and that the first Greeley caorado.
publication of said noti as afor said, DATE: August 16,
was on the 3 day of 2000
2000 and the last on t ay of REQUEST: 9O0 a.m.
Cable
2000. Television Franchise
Renewal Application
PELTON PUBLISHING COMPANY LLC BOARD OF COUNTY
COMMISSIONERS
I ;_( t ^ WELD COUNTY,
C//1/ COLORADO
B Rut Pelton-Roby, Manager DATED: July Jl 2000
PUBLISHED:
Subscribed and s orn to before me this August 3,2000,in the South
clay of-_ wda Sun
o W iC
mmission expires:0/—a4i—Of
oyCCc /9 2 5
s1 'Th
FRANCHISE AGREEMENT
This Franchise Agreement("Franchise") is between the Board of County Commissioners
of Weld County, Colorado, hereinafter referred to as "the County" and Tele-Vue Systems, Inc., a
subsidiary of AT&T Corp.,hereinafter referred to as "the Grantee."
BACKGROUND INFORMATION
A. The County is authorized to grant one or more nonexclusive, revocable franchises
to construct, reconstruct, operate, and maintain a cable system within the County.
B. The Grantee has made application to the County for renewal of its existing
franchise.
C. The County has determined that the financial, legal, and technical ability of
Grantee is reasonably sufficient to provide services, facilities, and equipment
necessary to meet the future cable-related needs and interests of the community.
D. The County, after public hearings and due evaluation, has determined that it is in
the best interest of the County and its residents to grant a renewed franchise to
Grantee for the term and pursuant to the terms and conditions provided herein.
NOW THEREFORE, in consideration of the mutual promises contained herein,the
parties do mutually agree as follows:
SECTION 1
Definition of Terms
1.1 Terms. For the purpose of this Franchise,the following terms, phrases,
words, and abbreviations shall have the meanings ascribed to them below. When
not inconsistent with the context, words used in the present tense include the
future tense, words used in the plural include the singular, and words used in the
singular include the plural.
A. "Authorized Agent" is a person or entity that has been appointed, elected or
designated by the Weld County Board of County Commissioners pursuant to
County resolution or ordinance.
B. "Basic Cable" is the lowest priced tier of Cable Service that includes the
retransmission of local broadcast television signals.
C. "Cable Act" means Title VI of the Communications Act of 1934, as amended.
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D. "Cable Services" means (1)the one-way transmission to Subscribers of(a)video
programming, or(b) other programming service, and(2) Subscriber interaction, if
any, which is required for the selection or use of such video programming or other
programming service.
E. "Cable System" shall mean a facility, including Grantee's, consisting of a set of
closed transmission paths and associated signal generation, reception, and control
equipment that is designed to provide Cable Service which includes video
programming and which is provided to multiple Subscribers within the Service
Area.
F. "County" means Weld County, Colorado or the lawful successor, transferee, or
assignee thereof
G. "FCC" means Federal Communications Commission or successor governmental
entity thereto.
H. "Franchise" means the initial authorization, or renewal thereof, issued by the
County pursuant to Weld County Ordinance 94, A and B amendments, whether
such authorization is designated as a franchise, permit, license, resolution,
contract, certificate, agreement, or otherwise,which authorizes the construction or
operation of a Cable System.
I. "Grantee" means Tele-Vue Systems, Inc., or the lawful successor, transferee, or
assignee thereof
J. "Gross Revenue" means all revenues collected directly or indirectly by Grantee,
or any affiliate of the Grantee who is a cable operator pursuant to Section 602(5)
of the Cable Act, from the provision of Cable Services over the Cable System
within the County, including,but not limited to, basic monthly fees, premium
service fees, installation and reconnection fees, leased channel fees, additional
outlet fees, advertising revenues, and converter rentals. The phrase "Gross
Revenues" shall not include: (1) any tax, fee or assessment of general applicability
collected by the Grantee from Subscribers for pass-through to a government
agency, including the FCC User Fee; (2) unrecovered bad debt.
K. "Person" means an individual, partnership, association,joint stock company,trust,
corporation, or governmental entity, or any other entity.
L. "Public Way" means the surface of, and the space above and below, any public
street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
parkway, way, lane, public way, drive, circle, or other public right-of-way,
including, but not limited to, public utility easements, dedicated utility strips, or
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rights-of-way dedicated for compatible uses and any temporary or permanent
fixtures or improvements located thereon now or hereafter held by the County in
the Service Area. Public Way shall also mean any easement now or hereafter
held by the County within the Service Area for the purpose of public travel, or for
utility or public service use dedicated for compatible uses.
M. "School" means any duly accredited nonprofit educational institution, including
primary and secondary schools,both public and private, but excludes "home
schools."
N. "Service Area" means the present boundaries of the County, and shall include any
additions thereto by annexation or other legal means, subject to the exceptions in
subsection 3.2.
O. "Standard Installation" is defined as 125 feet from the nearest tap to the
Subscriber's terminal.
P. "Subscriber" means a Person who lawfully receives Cable Service of the Cable
System with the Grantee's express permission.
SECTION 2
Grant of Franchise
2.1 Grant. The County hereby grants to the Grantee, subject to the terms and
conditions set forth in this Franchise Agreement, a nonexclusive Franchise which
authorizes the Grantee, subject to the construction provisions and other conditions
set forth in this Franchise Agreement, to construct and operate a Cable System in,
along, among, upon, across, above, over, under, or in any manner connected with
Public Ways within the Service Area, and for that purpose to erect, install,
construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon,
across, or along any Public Way such facilities and equipment as may be
necessary or appurtenant to the Cable System.
2.2 Other Ordinances. This Franchise is subject to the County's generally
applicable ordinances, statutes and regulations now in effect or hereafter made
effective to the extent that Grantee's rights and obligations herein are not
materially altered thereby. Nothing in this Franchise Agreement shall be deemed
to waive the generally applicable requirements of the various codes and
ordinances of the County including, but not limited to, permits, permit fees, or
manner of construction. Federal and State laws will apply concerning regulatory
matters. In accepting this Franchise, Grantee acknowledges that its rights
hereunder are subject to the police powers of the County to adopt and enforce
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general ordinances necessary to the safety and welfare of the public and it agrees
to comply with all applicable general laws and ordinances enacted by the County
pursuant to such power.
2.3 Right of County to Grant Franchise. Grantee acknowledges and accepts the
legal right of County as such legal right exists on effective date hereof to issue this
Franchise on the date of grant thereof, and Grantee agrees that it shall not now nor
at any time hereafter challenge this lawful right of the County to issue this
Franchise in any way, in any County, Federal Court or governmental agency.
2.4 Franchise Nonexclusive/Level PlavinQ Field. This Franchise shall not be
construed as any limitation upon the right of the County to grant to other Persons
rights, privileges, or authorities similar to the rights,privileges, and authorities
herein set forth, in the same or other Public Ways or public places. The County
specifically reserves the right to grant at any time during the term of this Franchise
Agreement or renewal thereof, if any, such additional Franchises for a Cable
System as it deems appropriate upon such terms and conditions as it deems
appropriate; provided however,the County shall not authorize or permit any
Person providing video programming services and/or Cable Services to enter into
the County's Public Ways in any part of the Service Area on terms or conditions
more favorable or less burdensome to such Person than those applied to the
Grantee pursuant to this Franchise, in order that one operator not be granted an
unfair competitive advantage over another, and to provide all parties equal
protection under the law.
2.5 Effective Date of Franchise. The effective date of the Franchise shall be
August 16, 2000 .
2.6 Term. The Franchise granted hereunder shall be for a term of twelve (12)
years commencing on the effective date of the Franchise as set forth in subsection
2.5, unless otherwise lawfully terminated in accordance with the terms of this
Franchise.
SECTION 3
Standards of Service
3.1 Required Extensions of the Cable System. Grantee shall offer
nondiscriminatory Cable Service in those areas of the County where Grantee
offers Cable Service. Whenever the Grantee receives a request for Cable Service
from a Subscriber in a contiguous unserved area of the County where there are at
least 15 residences within 1320 cable-bearing strand feet (one-quarter cable mile)
from the portion of the Grantee's trunk or distribution cable which is to be
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extended, it shall extend its Cable System to such Subscribers at no cost to said
Subscribers for the Cable System extension, other than the published
Standard/non-Standard Installation fees charged to all Subscribers.
Notwithstanding the foregoing,the Grantee shall have the right, but not the
obligation, to extend the Cable System into any portion of the Service Area where
another operator is providing Cable Service, into any annexed area which is not
contiguous to the present Service Area of the Grantee, or into any area which is
financially or technically infeasible due to extraordinary circumstances, such as a
runway or freeway crossing.
3.2 Subscriber Charges for Extensions of the Cable System. No Subscriber shall
be refused service arbitrarily. However, if an area does not meet the density
requirements of subsection 3.1 above, the Grantee shall only be required to extend
the Cable System to Subscriber(s) in that area if the Subscriber(s) are willing to
share the capital costs of extending the Cable System. Specifically, the Grantee
shall contribute a capital amount equal to the construction cost per mile,
multiplied by a fraction whose numerator equals the actual number of residences
per 1320 cable-bearing strand feet from the Grantee's trunk or distribution cable,
and whose denominator equals 15. Subscribers who request service hereunder
shall bear the remaining cost to extend the Cable System on a pro rata basis. The
Grantee may require that payment of the capital contribution in aid of construction
to the home by such potential Subscribers be paid in advance. Subscribers shall
also be responsible for any Standard/non-Standard Installation charges to extend
the Cable System from the tap to the residence.
3.3 Cable Service to Public Buildings. The Grantee, upon request, shall provide
without charge, a Standard Installation and one outlet of Basic Cable and
expanded Basic Cable to those administrative buildings owned and occupied by
the County and each public library, fire station, police station, and School that is
passed by its Cable System. The Cable Service provided shall not be distributed
beyond the originally installed outlet without authorization from the Grantee. The
Cable Service provided shall not be used for commercial purposes, and such
outlets shall not be located in areas open to the public. The County shall take
reasonable precautions to prevent any use of the Grantee's Cable System in any
manner that results in the inappropriate use thereof or any loss or damage to the
Cable System. The Grantee shall not be required to provide an outlet to such
buildings where a non-Standard Installation is required, unless the County or
building owner/occupant agrees to pay the incremental cost of any necessary
Cable System extension and/or non-Standard Installation. If additional outlets of
Basic Cable are provided to such buildings, the building owner/occupant shall pay
the usual installation and service fees associated therewith, including, but not
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,.�
limited to, labor and materials at actual cost. However, the Basic Cable and
expanded Basic Cable shall be provided free of charge regardless of the number of
outlets provided to such buildings.
3.4 Reimbursement of Costs. If public funds are available to any Person using
the Public Way for the purpose of defraying the cost of any work required by the
Franchise of Grantee, such funds shall also be made available to Grantee in the
same manner in which they have been made available to any other Person in a
situation similar to that of Grantee.
3.5 Present System. The parties understand and agree that the Cable System in
the County operated by Grantee on the effective date of this Franchise offers
ninety-one (91)video-programming services.
3.6 Public Access Studio. Grantee shall not be responsible for providing a studio
for public, educational, or government access programming purposes. However, if
Grantee operates a studio solely for the purpose of providing public, educational
or government programming in unincorporated Weld County during this
Franchise term, Grantee agrees to make such studio available on a reasonable
basis to Weld County subscribers during regular business hours.
3.7 Technical Standards. The Cable System operated hereunder shall at all times
operate and be updated as needed so that, at a minimum, it is in conformance with
all applicable federal and state technical specifications (as they may be amended)
including, but not limited to technical specifications contained in FCC rules and
regulations (as they may be amended), or any other applicable law which may
supersede such rules. Regardless of the technical standards that may be
applicable, Grantee shall use its good faith efforts to provide to Subscribers video
and audio signals of consistently good quality.
3.8 System Design and Capacity. The following requirements shall govern and
be applicable to Grantee's Cable System:
A. Capacity for Two-Way Cable Services. The Cable System shall have the
capability for two-way Cable Services.
B. Standby Power. Grantee shall provide standby power-generating capacity at the
headend of at least four (4)hours. Grantee shall maintain strategically located
standby power system supplies throughout the Cable System, rated for at least two
(2) hours duration.
C. Interconnections. Upon the request of the County, and if technically and
economically feasible, Grantee shall negotiate in good faith to interconnect the
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Cable System with neighboring Cable Systems. Grantee shall not be required to
interconnect with competing Cable Systems or with neighboring Cable Systems
who are unwilling to reasonably share the costs of interconnection.
3.9 Service to Multiple Family Dwelling Units. In general, multiple dwelling
units shall have the same availability of Cable Services from the Grantee's Cable
System as single family dwelling units. Notwithstanding the foregoing, the
County acknowledges that the Grantee must obtain a mutually-acceptable
agreement from the owner of each multiple dwelling unit before Cable Service
can be provided, and acknowledges that the Grantee cannot control the
dissemination of particular Cable Services beyond the point of demarcation at a
multiple dwelling unit.
3.10 Test and Compliance Procedures
A. Grantee, at its cost, shall perform all tests necessary to determine compliance with
the FCC prescribed technical standards. The County may witness such testing
upon written request at least 30 days in advance of testing.
B. Certifications and Recertifications. Grantee shall, no less often than as provided
by law, perform at Grantee's expense, a proof of performance test to verify that
the Cable System conforms to all requirements specified in this Franchise
Agreement and applicable law. Upon request, copies of the results of such proof
of the most recent performance tests shall be provided to the County.
C. Signal Leakage Tests and Reports. Grantee shall specifically monitor the signal
leakage as required by applicable law and shall submit to the County, on request, a
written report detailing the section of the Cable System tested, measurements
recorded at specified locations, and corrections made. Written records of test
results shall be maintained as required by law and shall be available for inspection
by the County on request.
D. Other Testing. Where there exists other evidence which in the judgment of the
County casts doubt upon the reliability or technical quality of Cable Service,the
County shall have the right and authority to require Grantee to test, analyze and
report on the performance of the Cable System. Except in emergency
circumstances, such tests may be required only after giving Grantee a 15-day
notice thereof. In the event that such testing demonstrates that Grantee has
substantially failed to comply with a material requirement hereof,the reasonable
costs of such tests shall be borne by the County. In the event that such testing
demonstrates that Grantee has substantially complied with such material
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provisions hereof,the reasonable cost of such testing shall be borne by the
County. Except in emergency circumstances, the County agrees that such testing
shall be undertaken no more than two times a year in the aggregate.
SECTION 4
Construction and Occupancy of Cable System in Public Ways
4.1 Conditions of Occupancy. The Cable System installed by the Grantee
pursuant to the terms hereof shall be located so as to cause a minimum of
interference with the proper use of Public Ways and with the rights and reasonable
convenience of property owners who own property that adjoins any of such Public
Ways.
4.2 Right of Inspections. The County shall have the right to inspect all
construction and installation work performed subject to the provisions of this
Franchise. Grantee shall pay all usual and customary fees of general applicability
for the inspection of construction in the Public Ways. Such inspection shall not
interfere with the operation of the Cable System and the provision of Cable
Services.
4.3 Other Construction Provisions.
A. No installation of any Cable System facility shall be performed or conducted
within any of the Public Ways of the County unless plans therefor shall have been
first submitted to the director of public works for the County and a construction
permit issued therefor.
B. Any future construction of Grantee's Cable System constructed within County
shall meet or exceed all technical standards of the FCC and other generally
applicable federal, state and local laws as they exist at that time.
C. Grantee shall not erect or authorize or permit others to erect any poles within the
Public Ways of the County for operation of its Cable System without the
authorization of the County.
D. Subject to any applicable local, state or federal regulations or tariffs, the County
shall have the right to make additional use, for any non-commercial public
purpose, of any poles or conduits owned exclusively by or for Grantee in any
Public Way; provided that:
1. Such use by the County does not interfere with a current or future use by
Grantee;
8
2. The County holds Grantee harmless against and from all claims, demands,
costs, or liabilities of every kind and nature whatsoever arising out of such use of
said poles or conduits, including, but not limited to, reasonable attorneys' fees and
costs; and,
3. At Grantee's discretion,the County may be required either to pay a
reasonable rental fee or otherwise reasonably compensate Grantee for the use of
such poles, conduits, or equipment; provided, however, that Grantee agrees that
such compensation or charge shall not exceed those paid by it to public utilities
pursuant to the applicable pole attachment agreement, or other authorization,
relating to the Service Area; and
4. The County does not utilize Grantee's facilities and equipment for the
provision of services which are competitive to those services provided by Grantee.
4.4 Underground Construction. In those areas of the Service Area where the
transmission or distribution facilities of the respective public utilities providing
telephone communications and electric services are underground, Grantee
likewise shall construct, operate, and maintain all of its transmission and
distribution facilities underground. Nothing contained in this section shall require
Grantee to construct, operate, and maintain underground any ground-mounted
appurtenances such as Subscriber taps, line extenders, Cable System passive
devices (splitters, directional couplers), amplifiers, power supplies,pedestals, or
other related equipment. With regard to new subdivisions within the Service Area
after the effective date of this Franchise, in any area where the transmission or
distribution facilities of the respective public utilities providing telephone
communications and electric services are placed underground, Grantee shall then
construct, operate, and maintain all of its transmission and distribution facilities
underground. Grantee specifically reserves its rights to reimbursement of costs
related to placing its transmission and distribution facilities underground,
however, if Grantee is not entitled to reimbursement from public funds or other
funds, it will pay such costs.
4.5 Construction in a Workmanlike Manner. All construction, installation, and
maintenance of the Cable System shall be performed in an orderly and
workmanlike manner and must comply with the National Electrical Safety Code,
the National Electric Code, and all generally applicable federal, state and local
regulations regarding construction, and generally accepted industry practices.
4.6 Compliance with OSHA. Worker facilities, conditions, and procedures shall
comply with the standards of the Occupational Safety and Health Administration.
4.7 Restoration of Public Ways. If during the course of the Grantee's
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construction, operation, or maintenance of the Cable System there occurs a
disturbance of any Public Way by the Grantee, Grantee shall replace and restore
such Public Way to a condition reasonably comparable to the condition of the
Public Way existing immediately prior to such disturbance. Failure of Grantee to
replace or restore such paving, sidewalk, driveway, street surface, or alley within
48 hours or a reasonable time frame justified by the circumstances after
notification by the County shall entitle the County to cause the proper restoration
to be made at Grantee's expense.
4.8 Injury to Private Property. Whenever Grantee shall cause or any Person
acting on its behalf shall cause any injury or damage to any private property by or
because of the installation, maintenance or operation of its Cable System, such
injury or damage shall be remedied by Grantee at Grantee's expense to the extent
such injury or damage was caused by Grantee or Person acting on Grantee's
behalf.
4.9 Relocation for the County. Upon its receipt of reasonable advance written
notice, to be not less than forty-eight (48)business hours, the Grantee shall
protect, support, raise, lower, temporarily disconnect, relocate in or remove from
the Public Way, any property of the Grantee when lawfully required by the County
by reason of traffic conditions, public safety, street abandonment, freeway and
street construction, change or establishment of street grade, installation of sewers,
drains, gas or water pipes, or any other type of public structures or improvements
by the County which are not used to compete with the Grantee's services. If
public funds are available to any Person using such Public Way for the purpose of
defraying the cost of any of the foregoing, such funds shall also be made available
to Grantee. If such funds are not available, Grantee shall pay for the cost of
relocation or removal.
4.10 Abandonment of Cable System Facilities. Whenever Grantee desires to
abandon any Cable System facility within the Public Way, Grantee shall submit
for the County's approval a complete description of the facility and the date on
which Grantee intends to discontinue using the facility. The County may approve
such request, require Grantee to remove the facility from the Public Way, or
condition the abandonment or modifications to the facility as necessary to protect
public health, welfare, safety, and convenience, or otherwise serve the public
interest. The County may require Grantee to perform a combination of
modification and removal of the facility. Grantee shall complete such removal or
modification in accordance with a reasonable schedule set by the County. Until
Grantee removes or modifies the facility as directed by the County, or until the
rights to and responsibility for the facility are accepted by another Person having
authority to construct and maintain such facility, or until the County approves
abandonment of the facilities, Grantee shall be responsible for all necessary
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repairs and relocations of the facility, as well as maintenance of the Public Way,
in the same manner and degree as if the facility were in active use, and Grantee
shall retain all liability for such facility. If Grantee abandons its facilities as
approved by the County, the County may choose to use such facilities for any
purpose whatsoever.
4.11 Relocation for a Third Party. The Grantee shall, on the request of any
Person who is a third party not affiliated with the County holding a lawful permit
issued by the County, protect, support,raise, lower, temporarily disconnect,
relocate in or remove from the Public Way as necessary any property of the
Grantee, provided: (A) the expense of such is paid by said Person benefitting from
the relocation, including, if required by the Grantee, making such payment in
advance; and (B)the Grantee is given reasonable advance written notice to
prepare for such changes. For purposes of this subsection, "reasonable advance
written notice" shall be no less than five (5) business days in the event of a
temporary relocation, and no less than one hundred twenty (120) days for a
permanent relocation.
4.12 Trimming of Trees and Shrubbery. The Grantee shall have the authority to
trim trees or other natural growth in order to access and maintain the Cable
System. Grantee shall reasonably compensate the County or property owner for
any damages caused by such trimming, or shall, at its own cost and expense,
reasonably replace all trees or shrubs damaged as a result of any construction,
operation or maintenance of the Cable System.
4.13 Safety Requirements. Construction, operation, and maintenance of the
Cable System shall be performed in an orderly and workmanlike manner. All such
work shall be performed in substantial accordance with generally applicable
federal, state, and local regulations and the National Electric Safety Code. The
Cable System shall not endanger or unreasonably interfere with the safety of
Persons or property in the Service Area.
4.14 Minimum Interference. All transmission lines, equipment, and structures
shall be installed, constructed, maintained and located so as to cause minimum
interference with the rights and reasonable convenience of property owners and at
all times be kept and maintained in a safe and adequate condition, and in good
order and repair. Grantee shall, at all times, employ necessary and reasonable care
and shall install and maintain in use commonly accepted methods and devices for
preventing failures and accidents which are likely to cause damage, injury, or
nuisances to the public. Suitable barricades, flags, lights, flares, or other devices
shall be used at such times and places as are reasonably required for the safety of
all members of the public.
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4.15 Remedies for Failure to Complete Work. Upon failure of Grantee to
commence, pursue or complete any work required of it by law or by the provisions
of this Franchise to be done in any Public Way, the County shall give written
notice thereof to Grantee. If Grantee has failed to remedy the situation within
thirty (30) days after receipt of such notice, the County, at its option, may cause
such work to be done and Grantee shall pay to the County the cost thereof in the
itemized amounts reported by the County to Grantee within thirty (30) days after
receipt of such itemized report.
SECTION 5
Leased Access Channels
Grantee shall offer leased access channel capacity on such terms and conditions and rates as
may be negotiated with each lessee subject to the requirements of the Cable Act.
SECTION 6
General Provisions Concerning Customer Service
6.1 Emergency Alert Capabilities. Grantee shall provide an Emergency Alert
System ("EAS") as required by applicable federal law in order for government
authorities to provide information and instructions during the emergency or
disaster period. The County shall hold Grantee, its agents, employees, officers,
and assigns hereunder, harmless from any claims arising out of the emergency use
of Grantee's facilities by the County, including, but not limited to, reasonable
attorney's fees and costs. The County may witness the testing of the EAS upon
written request at least 30 days in advance of testing.
6.2 Parental Control Devices. Grantee shall make available to Subscribers the
ability to lock out such channels as they may desire. Grantee reserves the right to
charge for such services and equipment.
6.3 Notice of Shutdown. At least twelve (12)hours before any planned
shutdown in excess of four(4) hours, Grantee shall give notice to the County
when possible, of maintenance or major equipment changeouts which require loss
of Cable Service to twenty five (25)qw or more Subscribers.
6.4 Employee Identification. All of Grantee's employees, including employees
of contractors and subcontractors, who will be in contact with the public must be
clearly identified as associated with the Grantee.
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6.5 Services for the Disabled. Grantee shall comply with all applicable federal,
state and local laws regarding services for the disabled.
6.6 Customer Service Standards. Grantee shall fully comply with the Customer
Service Standards as set forth in Section 76.309 of the FCC Rules and
Regulations, and as hereafter amended and as set forth in generally applicable law
or regulation.
6.7 Equal Employment Opportunity. Grantee shall comply with all applicable
equal employment opportunity laws.
SECTION 7
Regulation by the County
7.1 General. The County may exercise appropriate regulatory authority under the
provisions of this Franchise Agreement and applicable law. Regulation may be
exercised through any duly designated and legally authorized County office or
duly established body appointed to advise or support the County in its regulatory
responsibilities.
7.2 Rate Regulation. The County and Grantee acknowledge that any future
regulation of rates and charges relating to the provision of Cable Services and
equipment under this Franchise Agreement shall be governed by applicable
federal law and the rules and regulations of the FCC (as amended). In addition,
the County may from time to time elect not to regulate Grantee's rates and
charges, but any such election shall not waive the County's right to regulate in the
future. When the County does elect to regulate, it shall first promulgate necessary
rules and procedural standards that conform to applicable laws and FCC
requirements. Thereafter,the County and Grantee will adhere to such procedures
in evaluating and resolving any matters which arise concerning rates and charges
which are subject to rate regulation under applicable laws and FCC rules and
regulations.
7.3 No Discrimination in Service. Grantee shall not, as to rates, charges,
services, service facilities, rules, regulations or in any other respect, make or grant
any unlawful preference or advantage to any Person, or subject any Person to any
unlawful prejudice or disadvantage. Nothing in this paragraph shall be construed
as a prohibition of providing free service or service at a reduced rate to Grantee
employees or to the resident managers of multi-family residential units or similar
situations.
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SECTION 8
Franchise Fees
8.1 Payment of Franchise Fee. The Grantee shall pay to the County a franchise
fee of five percent (5%) of annual Gross Revenue (as defined in subsection 1.1 of
this Franchise) collected during the period of its operation under the Franchise in
the County. In accordance with the Cable Act, the twelve (12) month period
applicable under the Franchise for the computation of the franchise fee shall be a
calendar year. The franchise fee payment shall be due annually and payable
within sixty (60) days after the close of the preceding calendar year. Each payment
shall be accompanied by a brief report prepared by a representative of the Grantee
showing the basis for the computation.
8.2 Interest on Late Payments. In the event that any franchise fee payment is not
received by the County on or before the applicable dates, interest shall be charged
from such due date until payment is made at an annual interest rate of twelve
percent(12%).
8.3 Audit. The County shall have the right to inspect such of Grantee's records
which are reasonably related to the franchise fee payment, and to recompute any
amounts determined to be payable under the franchise. Such right to audit and the
Grantee's obligations to retain records related to the franchise fee payment shall
expire three (3)years after each franchise fee payment has been made to the
County. The County shall give reasonable advance notice of any audit, and such
audit shall be conducted during normal business hours. If the results of an audit by
the County show a discrepancy of more than five percent(5%) in the franchise
fees that were to be paid to the County, Grantee shall pay for the cost of such
audit. If a net franchise fee underpayment is discovered as the result of an audit,
Grantee shall pay interest at the rate of the eight percent (8%)per annum
calculated from the date each portion of the underpayment was originally due until
the date Grantee remits the underpayment to the County.
8.4 Payment in Event of Franchise Termination. In the event the franchise is
revoked or otherwise terminated prior to its expiration date, Grantee shall file with
the County, within ninety (90) days of the date of revocation or termination, a
certified revenue statement showing the Gross Revenues received by it since the
end of the previous year and shall make adjustments at that time for the franchise
fees due up to the date of revocation or termination.
8.5 Acceptance of Payment Not Release. No acceptance of any payment by the
County shall be construed as a release or as an accord and satisfaction of any
claim the County may have for further or additional sums payable as a franchise
fee or for the performance of any other obligation of Grantee.
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8.6 Increase in Franchise Fees. The parties acknowledge that the franchise fees
payable by Grantee to the County shall not exceed the amount set at any time by
federal law. If federal law is amended to allow franchise fees in excess of five
percent(5%) of Gross Revenues,the County may raise said franchise fees payable
by Grantee up to seven and one-half(7'h%)percent of Grantee's Gross Revenues
from its operations in the County. If federal law is amended to allow a franchise
fee in excess of 7'h%, the parties shall negotiate in good faith the new franchise
fee amount. If federal law is amended to decrease franchise fees to at least three
percent (3%), County will reduce franchise fees to such percentage. In any case,
the County will not charge a franchise fee from Grantee that is in excess of the
franchise fee amount charged any other cable operator in the County.
8.7 Franchise Fees Not a Tax. The franchise fees shall not be considered in the
nature of a tax, but shall be in addition to any and all taxes which are now or
hereafter required to be paid by any law of the County, the State of Colorado, or
the United States.
8.8 Franchise Fees Eliminated. In the event that franchise fees are prohibited by
any law or regulation, Grantee shall negotiate in good faith with the County for an
equitable payment for use of the Public Way.
SECTION 9
Renewal of Franchise
9.1 The County and the Grantee agree that any proceedings undertaken by the
County that relate to the renewal of the Grantee's Franchise shall be governed by
and comply with the provisions of Section 626 of the Cable Act.
9.2 In addition to the procedures set forth in said Section 626(a), the County
agrees to notify the Grantee of all of its assessments regarding the identity of
future cable-related community needs and interests, as well as the past
performance of the Grantee under the then current Franchise term. The County
further agrees that such assessments shall be provided to the Grantee promptly so
that the Grantee has adequate time to submit a proposal under Section 626(b) of
the Cable Act and complete renewal of the Franchise prior to expiration of its
term.
9.3 Notwithstanding anything to the contrary set forth in this Section, the
Grantee and the County agree that at any time during the term of the then current
Franchise, while affording the public appropriate notice and opportunity to
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comment, the County and the Grantee may agree to undertake and finalize
informal negotiations regarding renewal of the then current Franchise and the
County may grant a renewal thereof.
9.4 The Grantee and the County consider the terms set forth in this Section to be
consistent with the express provisions of Section 626 of the Cable Act.
SECTION 10
Books and Records
10.1 County Review of Grantee's Books and Records. The Grantee agrees that
the County, upon thirty (30) days written notice to the Grantee, may review such
of its books and records at the Grantee's business office, during normal business
hours and on a nondisruptive basis, as is reasonably necessary to ensure
compliance with the terms of this Franchise. Such notice shall specifically
reference the Section of the Franchise that is under review, so that the Grantee
may organize the necessary books and records for easy access by the County.
Alternatively, if the books and records are not easily accessible at the local office
of the Grantee, the Grantee may, at its sole option, choose to pay the reasonable
travel costs of the County's representative to view the books and records at the
appropriate location. The Grantee shall not be required to maintain any books and
records for Franchise compliance purposes longer than three (3) years.
Notwithstanding anything to the contrary set forth herein, the Grantee shall not be
required to disclose information which it reasonably deems to be proprietary or
confidential in nature, nor disclose books and records of any affiliate which is not
providing Cable Service in the Service Area. The County agrees to treat any
information disclosed by the Grantee as confidential and only to disclose it to
employees, representatives, and agents thereof that have a need to know, or in
order to enforce the provisions hereof. The Grantee shall not be required to
provide Subscriber information in violation of Section 631 of the Cable Act.
10.2 Copies of Federal and State Reports. Copies of all publicly-available
petitions, applications and communications sent to or exchanged between Grantee
and the FCC, Securities and Exchange Commission or any other federal or state
regulatory commission or agency having jurisdiction in respect to any matter
affecting Cable System operations, so far as the same pertains directly to the
Cable Service or Cable System of Grantee in the County, shall also be submitted
to the County within thirty (30) days upon receipt of a specific request of the
County.
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SECTION 11
Insurance and Indemnification
11.1 Comprehensive Liability Insurance. Grantee shall at all times during the
existence of this Franchise maintain in full force and effect at Grantee's own cost
and expense, a comprehensive liability insurance policy with a company which is
licensed to do business in the state, protecting, indemnifying and defending the
County, Board of Commissioners and any officers, boards, commissions,
employees, and Authorized Agents thereof from and against any and all claims,
demands, actions, suits and proceedings by others, against all liabilities to others,
including but not limited to any liability for damages by reason of, or arising out
of, any failure by Grantee to secure consents from the owners, authorized
distributors or licensees of programs to be transmitted or distributed by Grantee,
and against any loss, cost, expense, and damages including reasonable attorneys'
fees, arising out of the exercise or enjoyment of the Franchise. Further, the
comprehensive liability insurance policy shall protect, indemnify and defend the
County, Board of Commissioners, and any officers, boards, commissions,
employees, and Authorized Agents thereof, from and against all claims by any
Person whatsoever for loss or damage for personal injury, death or property
damage occasioned by the operations of Grantee under Grantee's franchise, or
alleged to so have been caused or occurred, with minimum liability limits of
• $1,000,000 for personal injury or death to any one Person in any one occurrence,
and $2,000,000 for personal injury or death to two or more Persons in any one
occurrence, and $2,000,000 for damage to property resulting from any one
occurrence. The County shall be named as an additional insured and will be
provided a certificate of insurance evidencing the coverages required herein.
11.2 Other Insurance. Grantee shall also provide Worker's Compensation
Insurance as required by Colorado law.
11.3 Changes in Insurance -Notice to County Required. All insurance coverage
provided under subsection 11.1 above shall provide for at least thirty (30) days'
prior written notice to the County Clerk in the event of material alterations or
cancellation of any coverage afforded in the policies, before such alteration or
cancellation becomes effective.
11.4 Insurance -No Limitation of Liability. Grantee's maintenance of insurance
policies required by this Franchise shall not be construed to excuse unfaithful
performance by Grantee or to limit the liability of Grantee to the coverage
provided in the insurance policies, or otherwise to limit the County's recourse to
any other remedy available at law or in equity.
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11.5 Indemnification. To the extent allowed by law, Grantee shall, at its sole
cost and expense, indemnify and hold harmless the County, Board of
Commissioners, and any officers, boards, commissions, Authorized Agents, and
employees thereof, at all times and shall pay all damages and penalties which the
County may be legally required to pay as a result of the Grantee's construction,
operation, or maintenance of the Cable System. Such damages and penalties shall
include, without limitation, damages arising out of copyright infringements, and
the construction, erection, operation, maintenance and repair of the Cable System,
whether or not any act or omission complained of is authorized, allowed or
prohibited by this Franchise. If legal action is filed against the County, either
independently or jointly with Grantee to recover for any claim or damages for
which the Grantee is required to indemnify the County under this subsection,
Grantee, upon notice to it by the County, shall defend the County against the
action. In the event of a final judgment being obtained against the County, either
independently or jointly with Grantee, for which Grantee has indemnified the
County, Grantee shall pay the judgment and all costs and hold the County
harmless therefrom. Nothing in this Franchise shall be interpreted to abridge or
otherwise affect the County's right to intervene or participate in any suit, action or
proceeding at the County's expense involving any provisions of this Franchise.
Grantee shall pay all expenses incurred in defending with regard to all damages as
set forth in this section. These expenses shall include, without limitation, all out-
of-pocket expenses, attorneys' fees, witness and discovery costs and expenses.
Additionally, the reasonable value of any services rendered by the County
Attorney and its office, and any other agents and employees of the County shall
also be paid by Grantee if Grantee requests such services.
SECTION 12
Bond or Other Surety
Grantee shall provide the County with either a$25,000 performance bond or deposit
$25,000 into a locally maintained escrow account to guarantee the due and punctual performance
of any and all obligations of Grantee set forth under this Franchise. The County shall approve
the form and content of the bond or the escrow agreement, such approval not to be unreasonably
withheld.
SECTION 13
Enforcement and Termination of Franchise
13.1 Notice of Violation. In the event that the County believes that the Grantee
has not cowplied with the terms of the Franchise, the County may informally
discuss the matter with Grantee although the County is not required to do so. If
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the problem is not resolved by informal discussions, the County shall notify the
Grantee in writing of the nature of the alleged noncompliance. The written notice
shall describe in reasonable detail the alleged violation so as to afford Grantee an
opportunity to remedy the violation.
13.2 The Grantee's Right to Cure or Respond. The Grantee shall have thirty (30)
days from receipt of the notice described in subsection 11.1: (A)to respond to the
County, contesting the assertion of noncompliance, or (B)to cure such default, or
(C) in the event that, by the nature of default, even though steps to remedy the
situation are initiated immediately, such default cannot be cured within the thirty
(30) day period, Grantee shall nevertheless immediately initiate reasonable steps
to remedy such default and notify the County of the steps being taken and the
projected date that they will be completed.
13.3 Public Hearing. In the event that the Grantee fails to respond to the notice
described in subsection 13.1 pursuant to the procedures set forth in subsection
13.2, or in the event that the alleged default is not remedied within thirty (30) days
or the date projected pursuant to 13.2(C) above, if it intends to continue its
investigation into the default, then the County shall schedule a public hearing. The
County shall provide the Grantee at least fifteen(15) days prior written notice of
such hearing, which specifies the time,place and purpose of such hearing, and
provide the Grantee the opportunity to be heard. The public hearing shall
conform with the provisions for a probable cause hearing in the Weld County
Administrative Manual, as amended, except for any specified time limits for
notice contained therein.
13.4 Enforcement. Subject to applicable federal, state, or other applicable law,
in the event the County, after the hearing set forth in subsection 13.3, determines
that the Grantee is in default of any provision of the Franchise, and within the
Grantee's control, the County may:
A Provide an opportunity for Grantee to remedy the violation and come into
compliance with the Franchise; or
B. Obtain judicial enforcement of Grantee's obligations by means of specific
performance, injunctive relief, mandate, or other remedies at law or in
equity; or
C. Consider any substantial violation as grounds for forfeiture and
termination of the Franchise, subject to the procedures in subsection 13.6.
13.5 Substantial Violations. A substantial violation of the terms and conditions
of this Franchise shall include, but shall not be limited to,the following:
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A. An uncured violation of any material provision of this Franchise or any
material rule, order, regulation, or determination of the County made
pursuant thereto;
B. An attempt to evade any material provision of the Franchise or practice
any fraud or deceit upon the Cable System Subscribers or upon the
County;
C. Grantee abandons the Cable System or terminates the Cable System's
operations;
D. Grantee fails to pay the franchise fees in accordance with this Franchise,
following notice and opportunity to cure;
E. Failure to restore Cable Service after 96 hours of an outage or interrupted
Cable Service; except when approval of such outage or interruption is
obtained from the County;
F. Material misrepresentation of facts in the application, proposal or during
the negotiations relating to this Franchise;
G. Failure to provide insurance and indemnity as required by the Franchise,
following notice and opportunity to cure.
None of the foregoing shall constitute a substantial violation if Grantee is without fault or
the violation occurs as a result of circumstances beyond Grantee's control. Grantee shall not be
excused by mere economic hardship or by nonfeasance or malfeasance of directors, officers,
agents, or employees; provided, however,that damage to equipment causing Cable Service
interruptions shall be deemed to be the result of circumstances beyond Grantee's control if it is
caused by sabotage or vandalism or malicious mischief Furthermore, the parties hereby agree
that it is not the County's intention to subject the Grantee to penalties, fines, forfeitures or
revocation of the Franchise for violations of the Franchise where the violation was a good faith
error that resulted in no or minimal negative impact on the Subscribers within the Service Area,
or where strict performance would result in practical difficulties and hardship to the Grantee
which outweigh the benefit to be derived by the County and/or Subscribers. Grantee shall bear
the burden of proof in establishing the existence of such conditions.
13.6 Revocation Proceeding. Should the County seek to revoke the Franchise
after following the procedures set forth in subsections 13.1-13.5 above,the
County shall cause to be served upon the Grantee written notice of the County's
intent to revoke the Franchise at a public hearing. Such notice shall be served on
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Grantee at least thirty (30) days prior to such public hearing and shall specify the
time and place of the hearing and set forth the specific reasons the County is
seeking to revoke the Franchise. The public hearing shall conform with the
provisions for a show cause hearing as set forth in the Weld County
Administrative Manual, as amended, with the exception of the specified time
limits for notice requirements. In the event of conflicts between the provisions in
this Franchise Agreement and the Weld County Administrative Manual, the
provisions set forth in this Franchise Agreement shall take precedence.
At the designated hearing,the County shall give the Grantee an opportunity to state its
position on the matter, after which it shall determine whether or not the Franchise shall be
revoked.
13.7 Appeal of Revocation. The Grantee may appeal any determination of
Franchise revocation to an appropriate court, which shall have the power to
review the decision of the County de novo. Such appeal to the appropriate court
must be taken within thirty (30) days of the Grantee's receipt of a written
determination of the County.
13.8 Other Available Remedies. The County may, at its sole discretion, take any
lawful action which it deems appropriate to enforce the County's rights under the
Franchise in lieu of revocation of the Franchise.
13.9 Transfer of Ownership in the event of Termination of Franchise. If a
renewal or extension of the Grantee's Franchise is denied or the Franchise is
lawfully terminated, and the County either lawfully acquires ownership of the
Cable System or by its actions lawfully effects a transfer of ownership of the
Cable System to another party, any such acquisition or transfer shall be at the
price determined pursuant to the provisions set forth in Section 627 of the Cable
Act as amended.
The Grantee and the County agree that in the case of a final determination of a lawful
revocation of the Franchise,the Grantee shall be given twelve (12) months from the date of the
final determination to effectuate a transfer of its Cable System to a qualified third party, if the
Grantee gives notice no more than sixty (60) days after the date of the final determination that
Grantee intends to attempt to effectuate such a transfer to a third party. The twelve (12) month
period ("the transfer period") may be extended by the County for good cause shown.
Furthermore, the Grantee shall be authorized to continue to operate pursuant to the terms of its
prior Franchise during the transfer period. If, at the end of the transfer period,the Grantee is
unsuccessful in procuring a qualified transferee or assignee of its Cable System which is
reasonably acceptable to the County,the Grantee shall forthwith, upon notice by the County,
remove at Grantee's own expense all designated portions of the Cable System from all Public
Ways within the County, and shall restore said Public Ways to their former condition; provided,
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however, Grantee shall have the right to sell its physical plant to a subsequent franchisee, subject
to County approval in which case said plant need not be removed and Grantee shall continue to
operate the Cable System during such interim period prior to the sale. If Grantee fails to remove
or operate its facilities upon request, the County may perform the work at Grantee's expense.
Subject to the provision above, any property of Grantee remaining in place 180 days after
expiration, termination or revocation of this Franchise shall be considered permanently
abandoned and may become the property of the County at its discretion. It is further agreed that
the Grantee's continued operation of the Cable System during the transfer period shall not be
deemed to be a waiver, nor an extinguishment of, any rights of either the County or the Grantee.
SECTION 14
Transfer of Ownership or Control
14.1 Transfer of Franchise. This Franchise shall not be sold, assigned,
transferred, leased, or disposed of, either in whole or in part, either by involuntary
sale, merger, consolidation, nor shall title thereto, either legal or equitable, or any
right, interest, or property therein pass to or vest in any Person, without the prior
consent of the County, which consent shall not be unreasonably withheld. No
such consent shall be required, however, for a transfer in trust, by mortgage, by
other hypothecation, or by assignment of any rights, title, or interest of the
Grantee in the Franchise or Cable System in order to secure indebtedness, nor for
transfer to Person controlling, controlled by, or under common control with
Grantee.
14.2 Change of Control. The County's consent shall also be required in the
event of a sale or transfer of all or a majority of Grantee's assets, merger
(including any parent and its subsidiary corporations), consolidation, creation of a
subsidiary corporation or sale or transfer of stock in Grantee so as to create a new
controlling interest. The term"controlling interest" as used herein is not limited
to majority stock ownership, but includes actual working control in whatever
manner exercised.
14.3 Procedures for Obtaining County Approval.
A. The parties to any transaction described in subsection 14.1 or 14.2 which requires
the County's approval shall make a written request to the County for its approval
of the transaction and furnish information related to the merger, sale or transfer as
required by generally applicable laws. Within thirty (30) days of receiving such
request,the County shall notify the Grantee in writing of any additional
information it reasonably requires to determine the legal, financial and technical
qualifications of the transferee.
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..
B. The County shall render a final written decision on the request within 120 days of
the request. The County may condition its consent to the transaction upon such
terms and conditions as it deems reasonably appropriate;provided, however, the
County shall not unreasonably withhold its approval; and any such terms and
conditions so attached shall be related to the legal,technical, financial
qualifications of the prospective controlling party or transferee and to the
resolution of outstanding and unresolved issues of noncompliance with the terms
and conditions of this Franchise by Grantee. If the County fails to render a final
decision on the request within 120 days, such request shall be deemed granted
unless the requesting party and the County agree to an extension of time.
C. Within thirty (30) days of the close of the transaction, if approved or deemed
granted by the County, Grantee shall file with the County a copy of a written
instrument evidencing such transaction, certified and sworn to as correct by the
transferee. In the event of an actual transfer of this Franchise from Grantee to
another Person, said Person shall file its sworn acceptance and agreement to abide
by each and every provision of this Franchise, subject to applicable law.
14.4 Foreclosure. Upon the foreclosure or other judicial sale of all or a
substantial part of the Cable System, Grantee shall notify the County of such fact
and such notification or the occurrence of such event shall be treated as a
notification that a change in control of the Franchise has taken place and such
change in control is subject to the consent of the County.
14.5 Receivership or Bankruptcy. The County shall have the right to cancel this
Franchise 120 days after the initiation of bankruptcy proceedings by or against
Grantee or the appointment of a receiver, or trustee, to take over the conduct the
business of Grantee, whether in receivership, reorganization, bankruptcy, or other
action or proceeding, unless such bankruptcy, reorganization, receivership,
trusteeship or other action or proceeding shall have been vacated prior to the
expiration of said 120 days, or unless:
A. Within 120 days after the election or appointment, such receiver or trustee shall
have fully complied with all of the provisions of the Franchise and remedied any
defaults thereunder; and
B. Within 120 days, such receiver or trustee shall have executed an agreement duly
approved by the court having jurisdiction whereby such receiver or trustee
assumes and agrees to be bound by each and every provision of this Franchise,
subject to applicable law.
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SECTION 15
Miscellaneous Provisions
15.1 Actions of Parties. In any action by the County or the Grantee that is
mandated or permitted under the terms hereof, such party shall act in a reasonable,
expeditious, and timely manner. Furthermore, in any instance where approval or
consent is required under the terms hereof, such approval or consent shall not be
unreasonably withheld.
15.2 Entire Agreement. This Franchise constitutes the entire agreement between
the Grantee and the County. Amendments to this Franchise shall be mutually
agreed to in writing by the parties.
15.3 Notices. Unless expressly otherwise agreed between the parties, every
notice or response required by this Franchise to be served upon the County or the
Grantee shall be in writing, and shall be deemed to have been duly given to the
required party when placed in a properly sealed and correctly addressed envelope:
a) upon receipt when hand delivered with receipt/acknowledgment, back upon
receipt when sent certified, registered mail, or a) within five (5) business days
after having been posted in the regular mail.
The notices or responses to the County shall be addressed as follows:
Board of County Commissioners of Weld County
Attn: County Clerk
915 10th Street, P.O. Box 758
Greeley, CO 80632
The notices or responses to the Grantee shall be addressed as follows:
Tele-Vue Systems, Inc.
c/o AT&T Broadband
Attn: Government Affairs Department
8000 East Iliff Avenue
Denver, CO 80231
with a copy to:
AT&T Broadband
Attn: Legal Department
188 Inverness Dr. West
Englewood, CO 80112
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The County and the Grantee may designate such other address or addresses from time to
time by giving notice to the other in the manner provided for in this subsection.
15.4 Descriptive Headings. The captions to Sections and subsections contained
herein are intended solely to facilitate the reading thereof. Such captions shall not
affect the meaning or interpretation of the text herein.
15.5 Severability. If any Section, subsection, sentence, paragraph,term, or
provision hereof is determined to be illegal, invalid, or unconstitutional, by any
court of competent jurisdiction or by any state or federal regulatory authority
having jurisdiction thereof, such determination shall have no effect on the validity
of any other Section, subsection, sentence,paragraph,term or provision hereof, all
of which will remain in full force and effect for the term of the Franchise.
15.6 Construction of Agreement. This Franchise shall be governed, construed,
and enforced in accordance with the laws of the State of Colorado (as amended),
the Cable Act as amended, and any applicable rules, regulations, and orders of the
FCC and any other generally applicable local, state and federal laws, rules,
regulations, legislation, or orders (as such now exist, are later amended or
subsequently adopted).
15.7 No Joint Venture.Nothing herein shall be deemed to create a joint venture
or principal-agent relationship between the parties, and neither party is authorized
to, nor shall either party act toward third persons or the public in any manner
which would indicate any such relationship with the other.
Considered and approved this IVti% day of NI us} , 2000.
BOARD OF COUNTY COMMISSIONERS
FOR bBarbanLK&er
WELD COUNTY, COLORADO /�L ATTEST: La
(ozII tot ZOOG) COUNTY CLERK TO T O v-
�
. I
By: Deputy Clerk to th cli • er y'
25
Accepted this 26 day of September , 2000, subject to applicable federal, state and
local law.
TELE-V SYSTEMS, INC.
By• Jer. J Kashinski
Authorized Agent
Title
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