Background Info for this Resolution

<Previous Resolution Following Resolution>

Archives

2003-46

A RESOLUTION

AUTHORIZING AN AMENDMENT TO THE CABLE COMMUNICATIONS FRANCHISE AGREEMENT WITH WIDEOPENWEST COLORADO LLC

WHEREAS, the cable television franchise of October 20, 2000, required WideOpenWest to completely build out a cable system within the municipal boundaries of Lakewood within a set period of time or the franchise would be terminated. Due to financial constraints the cable provider has been unable to fulfill this requirement. WideOpenWest does serve many customers in the southern portion of the City and staff has found them to be dependable and customer service oriented. In addition, the WideOpenWest headend is located in Lakewood so signal quality is exceptional; and

WHEREAS, the franchise amendment allows the company some time to regain financial stability. The amendments require WideOpenWest to build out the Lakewood system first before other communities when it is able to continue construction; and

WHEREAS, WideOpenWest has consistently met its financial obligations under the franchise for the payment of franchise fees and Public, Education and Government Access (PEG) fees to the City.

NOW THEREFORE BE IT RESOLVED by the City Council of the City of Lakewood, Colorado that:

SECTION 1. The City Council hereby approves the Amendment to the Cable Communication Franchise Agreement with WideOpenWest LLC, said amendment is attached as Exhibit "A" and is incorporated herein by reference.

The Mayor is hereby authorized to execute, and the City Clerk to attest the Amendment to the Cable Communication Franchise Agreement with WideOpenWest LLC.

INTRODUCED, READ AND ADOPTED by a vote of 9 for and 0 against at a regular meeting of the City Council on June 23, 2003, at 7:00 o'clock p.m. at Lakewood Civic Center, 480 South Allison Parkway, Lakewood, Colorado.

Stephen A. Burkholder, Mayor

ATTEST:
Margy Greer, City Clerk

---

CITY OF LAKEWOOD
and
WIDEOPENWEST COLORADO, LLC
AMENDMENT TO
CABLE COMMUNICATIONS FRANCHISE AGREEMENT

This Amendment is entered into by and between the City of Lakewood, hereinafter referred to as "Grantor," and WideOpenWest Colorado, LLC, a Delaware limited liability company, hereinafter referred to as the "Grantee."

RECITALS:

A. Grantor and Grantee entered into a certain Cable Communications Franchise Agreement dated October 20, 2000 (the "Franchise").

B. Grantor and Grantee desire to amend the Franchise in accordance with the provisions hereof.

C. The parties acknowledge that all provisions of the Franchise remain in full force and effect, unless specifically amended herein.

AGREEMENT:

In consideration of the mutual consideration and promises hereinafter set forth, Grantor and Grantee agree as follows:

1. Suspension of Certain Provisions of Franchise Agreement.

Grantor and Grantee agree to suspend the following provisions of the Franchise:

A. Section 5.3, Payment and Performance Bonding
B. Section 13.8, Line Extension Policy
C. Exhibit C, Institutional Network
D. Exhibit F, Construction Schedule

2. Effect of Suspension.

(A) The parties agree that the effect of this Amendment is to suspend the rights and obligations of the parties under the referenced Sections and Exhibits of the Franchise, without penalty upon or assessment against either party to the Franchise. Grantee represents that it intends to, at some point in the future, resume its construction of the Cable System in the City. Grantee shall take reasonable steps, within its sole discretion and consistent with acceptable business practices and economic conditions, to pursue the ability to build out its Cable System throughout the entire City. At such time as construction resumes, Grantee acknowledges that that Sections 5.3 and 13.8, and Exhibit C of the Franchise, shall be reinstated as originally set forth. Grantee further agrees that, prior to resuming construction of its system in the City, Grantee shall: (i) obtain approval from Grantor to proceed with construction under the current Franchise; (ii) re-establish any bonds and letters of credit to the full amount required by the Franchise; (iii) re-negotiate in good faith the construction schedule requirements contained in Exhibit F.

(B) When Grantee is prepared to commence construction to expand its cable system in the City, it shall contact the Grantor and the parties shall negotiate a new construction schedule, to be adopted as an amendment to the Franchise.

(C) On the fourth anniversary of the effective date of this amendment, and on every fourth anniversary thereafter during the term of the Franchise, Grantor may review the status of construction and any planned, proposed and/or ongoing expansion of the cable system as follows:

(i) For a period of sixty (60) days after the fourth anniversary date, Grantor may request that Grantee provide, in writing, an explanation of its plans for expansion of the cable system in the City, if any, or alternatively, a status report on any ongoing construction.

(ii) Within thirty (30) days of receipt of such request, Grantee shall provide in writing, its description of any planned construction, or status report of ongoing construction. If Grantee does not, at that time, have any plans for construction to expand the cable system, Grantee shall provide an explanation for its position.

(D) If, after receipt of Grantee's written explanation of its construction plans and schedule as described in Section (B) or (C)(ii) above, Grantor may, in its sole and absolute discretion:

(i) Accept Grantee's plan, and take no further action.

(ii) Negotiate a new construction schedule with Grantee.

(iii) In the event there is no planned construction to expand the Cable System over the next twelve (12) months, determine that the Franchise should be revoked twelve (12) months from the date of the Grantor's action.

(E) Any Grantor decision to revoke the Franchise for the grounds described in this Section 2 shall not be challenged by Grantee. Any decision to revoke must be made by the City Council at a public meeting. All post-revocation obligations of the Franchise shall govern the rights and obligations of Grantor and Grantee after such decision, except that Grantor's action shall be final and not challenged in any legal action.

3. Security. Section 5.4 (B) of the Franchise shall be modified to provide that if the GMTC security funds are not established or otherwise unavailable to the Grantor, the Letter of Credit (or other such security as may be approved, in the sole discretion of the City), be provided as security for the City shall be in the amount of Ten Thousand ($10,000) Dollars. The remaining provisions of Section 5.4 (B) shall remain the same. Within six (6) months after construction of the cable system resumes, the original provisions of Section 5.4 (B) shall be reinstated, and if necessary, a new Letter of Credit shall be issued.

4. Construction Commitment.

In consideration for the suspension of the Franchise provisions described in Paragraph 1 of this Amendment, Grantee, upon re-commencement of construction within the Denver Metro area, will prioritize the build out of the Grantor's Franchise area. Grantee agrees to commence and complete construction in the Franchise area within the same general time frame that it commences and completes construction in the City and County of Denver. For purposes of this Amendment "the same general time frame" means commencing and completing construction in the Franchise area will occur within ninety (90) days of commencement and completion of construction in the City and County of Denver. Grantee further agrees that it will not commence construction in any other jurisdiction until construction is commenced in the City.

5. Execution

This Amendment shall not be entered into, or binding, unless and until fully executed by Grantor in accordance with all legal requirements appertaining thereto, including approval by Council.

AGREED TO this __________ day of June, 2003.

CITY OF LAKEWOOD

________________________________
Mayor

WIDEOPENWEST COLORADO, LLC

By: _____________________________

Title:____________________________

ATTEST:

______________________________

APPROVED AS TO FORM:

______________________________