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2002-044 RESOLUTION NO. 2002-44 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, APPROVING THE CHANGE OF CONTROL OF DISTRICT CABLEVISION LIMITED PARTNERSHIP, TO AT&T COMCAST. WHEREAS, pursuant to Resolution No. 98-12, the City of Aventura, Florida ("City"), entered into a Franchise Agreement with Comcast Cablevision of Hallandale, Inc., ("Franchise Agreement"), providing services locally as Comcast Cablevision ("Comcast"); and WHEREAS, pursuant to Resolution No. 2000-76, the Franchise Agreement was transferred from Comcast to District Cablevision Limited Partnership, providing services locally as AT&T Broadband; and WHEREAS, AT&T Broadband maintains that instead of transferring the Franchise Agreement to District Cablevision Limited Partnership, it meant to transfer the Franchise Agreement to Community Cable Television, a Wyoming general partnership ("Franchisee"); and WHEREAS, AT&T Broadband has requested the City's consent to transfer the Franchise from District Cablevision Limited Partnership to Franchisee; and WHEREAS, pursuant to the Separation and Distribution Agreement between AT&T Corp. ("AT&T") and AT&T Broadband Corp. and the Agreement and Plan of Merger between AT&T and Comcast Corporation, a newly formed entity, AT&T Comcast Corporation ("AT&T Comcast"), will assume ultimate parent company ownership and control of the Franchisee (the "Transaction"); and Resolution No. 2002-44 Page 2 W}IEREAS, on or about March 8, 2002, the City received an FCC 394 and an Application for City consent by the City Commission to the proposed change of control of the Franchisee; and WItEREAS, pursuant to Ordinance No. 97-20, as amended by Ordinance No. 98- 11 of the City ("Ordinance") and the franchise issued under Resolution 98-12 (the "Franchise Agreement"), no such transfer or change of control may occur without prior approval of the City Commission of the City of Aventura; and WItEREAS, the City has required that the Franchisee fulfill its obligations, pursuant to the Ordinance and Franchise Agreement, and provide information on the proposed transaction including details on the legal, financial, technical and other qualifications of AT&T Comcast and on the potential impact of the transfer on service; and WHEREAS, under FCC Rules, 47 C.F.R. Section 76.502, the City has 120 days plus any extensions thereto from the date of submission of a completed FCC Form 394, together with all exhibits, and any additional information required by the Franchise Agreement or applicable state or local law, to act upon an application to sell, assign, or otherwise transfer controlling ownership of a cable system; and WHEREAS, Franchisee has represented to the City that it has taken all actions and implemented all practices necessary to insure that Franchisee is in compliance with all applicable provisions of the Ordinance and Franchise Agreement; and Resolution No. 2002-44 Page 3 WHEREAS, the City has required written acceptance from Franchisee and written acceptance by AT&T Comcast of the terms and conditions of this Resolution as a condition precedent to adoption of this Resolution (attached hereto as Exhibit A); and WHEREAS, in the event the Transaction is not consummated by March 31, 2003 or does not reach final closure for any reason, or in the event such closure is reached on terms substantially or materially different to the terms described in the FCC Form 394 and exhibits thereto, the approval granted in this Resolution shall be null and void unless otherwise extended by agreement of the parties. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA: The foregoing recitals are approved and incorporated herein by Section 1. reference. Section 2. To the extent required, the City hereby consents to the transfer of the Franchise Agreement from District Cablevision Limited Partnership to Community Cable Televsision, a Wyoming general partnership, with the ultimate parent corporation being AT&T Comcast Corporation following the closing of the Transaction. To the extent required, the City hereby further consent to the change in ultimate control of the Franchisee from AT&T Corp. to AT&T Comcast. Section 3. That the consent granted herein does not constitute and should not be construed to constitute a waiver or release of any obligations of the Franchisee under the applicable terms of the current Ordinance and Franchise Agreement. Resolution No. 2002-44 Page 4 Section 4. That the consent granted herein does not and should not be construed to constitute a waiver of any fight of the City or Franchisee under applicable law, including but not limited to, the applicable provisions of the Ordinance or the Franchise Agreement; and further, this consent shall not prejudice the City's rights with respect to the enforcement, renewal or transfer of the Franchise Agreement, whether the non-compliance arose before or after the Transaction. Section 5. That the consent granted is conditioned upon execution and delivery of, within twenty (20) days of enactment of this Resolution, the (a) Acknowledgment attached hereto as Exhibit A; (b) Franchisee's assurances as set forth in Exhibit B attached hereto; (c) the letter agreement referencing payment to the City attached hereto as Exhibit C; and (d) the Performance Guaranty Agreement in the form attached as Exhibit D. Section 6. That this Resolution shall have the fome and effect of continuing the Franchise Agreement between the Franchisee and the City (as the Franchise Authority), to the extent consistent with the applicable provisions of the Ordinance, the Franchise Agreement and Exhibits A, B, C and D attached hereto. Section 7. That the City hereby reserves all of its rights pursuant to Federal, State and including but not limited to, (a) the right to consider violations of the Franchise by the Franchisee, either prior to or subsequent to the Transaction; (b) the franchise transfer process, including but not limited to, the right to act upon any application to sell, assign or otherwise transfer any interest in the Franchisee or the cable system; and (c) the Resolution No. 2002-44 Page 5 enforcement of the applicable tenns of the current Ordinance and the Franchise Agreement Section 8. That the consent herein granted expressly does not waive and expressly reserves to the City its fights to fully exercise all applicable legal rights and authority with regard to Franchisee in connection with any use of the City's rights-of-way not authorized by the City, including but not limited to, levying fines or instituting litigation for trespass and ejectment. Section 9. That the consent herein granted is an express non-waiver and reservation of the City's rights and authority against Franchisee for any Franchise violations that may exist, including but not limited to, those in connection with any unauthorized use of Franchisee's facilities, by any entity in any way affiliated with Franchisee, its affiliates, parent or subsidiary. Section 10. That the consent granted herein is subject to AT&T Comcast obtaining all required federal and state approvals, licenses, and permits required with respect to the Transaction. Section 11. This Resolution shall become effective upon the date of its adoption herein. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Resolution No. 2002- Page 6 The foregoing Resolution was offered by Commissioner Cohen ., who moved for its adoption. The motion was seconded by Commissioner Rogers-LJ. bert , and upon being put to a vote, the vote was as follows: Commissioner Jay R. Beskin yes Commissioner Ken Cohen yes Commissioner Harry Holzberg yes Commissioner Manny Grossman Commissioner Patricia Rogers-Libert yes Vice Mayor Agthur Berger yes Mayor Jeffrey M. Perlow PASSED AND ADOPTED this 18th day of July, 2002. /d~PI~REffY M. PERLOW,~/g~O/OR ATTEST: T~SA M. S~, CM~, CITY CLE~ ~PROVED AS TO LEGAL S~FICIENCY: CITY ATTO~EY EXHIBIT A UNCONDITIONAL ACCEPTANCE OF TERMS OF RESOLUTION NO. 2002-44 BEFORE ME, appeared the undersigned authority who being duly sworn upon his oath deposes and states that: 1. Affiants are, respectively, the Senior Vice President of AT&T Broadband, LLC ("AT&T Broadband" and the person authorized to execute this document on behalf of Community Cable Television a Wyoming general partnership (the "Franchisee") and -~k-~-&e-,lx~4~~ the Va..~_~x~-,~,~*-~r~-~,,x~,~-~- of AT&T Comcast Corporation ("AT&T Comcast"), and the person authorized to execute this document on behalf of AT&T Comcast, for the Change of Control of the Franchisee, as set forth on the FCC Form 394 received by the City of Aventura, Florida (the "City"), on or about March 8, 2002 and the transfer of the Franchise from District Cablevision Limited Partnership to Franchisee, both as set forth in 20O2-/,4 Resolution No. , adopted by the City on July 18, 2002 (the "Transfer and Change of Control"). 2. Affiants are submitting this Affidavit as a condition precedent to the approval of the Application for Change of Control of the Franchisee from AT&T Corp. to AT&T Comcast and the transfer of the Franchise from District Cablevision Limited Partnership to Franchisee. 3. Franchisee affirms that it is and will continue to be bound by and shall assume all the lawful and applicable terms and conditions of the cable television Ordinance 97-20, as amended by Ordinance No. 98-11, (the "Ordinance"), the current franchise agreement between the Franchisee and the City (the "Franchise Agreement") and any lawful amendments and agreements related thereto (the Ordinance, Franchise Agreement and such amendments and agreements are collectively referred to herein as the "Franchise") and the Resolution of the City Commission of the City approving the Transfer and Change of Control of the Franchisee. 4. AT&T Comcast hereby attests and acknowledges that the Transfer and Change of Control will not affect, diminish, impair or supercede the binding nature of the existing valid ordinances, resolutions and agreements applicable to operation of the cable system in the City, including but not limited to, the Ordinance, Franchise Agreement and any guarantees provided herein. 5. Franchisee hereby acknowledges and agrees that the following issues concerning Franchisee's compliance with the Ordinance and Franchise Agreement shall be resolved as set forth herein: A. Franchisee and AT&T Comcast recognize and acknowledge that the financial qualifications of AT&T Comcast are an important and relevant consideration of the City for the evaluation of the proposed Transfer and Change of Control, and in particular, the assurance that sufficient financial resources are available to Franchisee to meet the obligations of the Franchisee under the terms of the Franchise. Accordingly, Franchisee or AT&T Comcast represent or warrant as follows: (i) AT&T Comcast and Franchisee represent and warrant that the Transfer and Change of Control will not have any adverse financial effect on the System, such that Franchisee's financial resources necessary to comply with the terms and conditions of the Franchise are adversely affected. AT&T Comcast acknowledges and agrees that from and after the Transfer and Change of Control it will not take any action that prevents the Franchisee's full performance of the applicable provisions of the Franchise and this Unconditional Acceptance. (ii) Franchisee represents and warrants that after the Proposed Transaction, Franchisee's financial resources will be such as shall enable it to maintain and operate the System in compliance with all requirements of the Franchise. (iii) Franchisee shall provide a Performance Guarantee Agreement in the form attached hereto from TCI Development, LLC. (iv) AT&T Comcast represents and warrants that the costs associated with the Transfer and Change of Control shall not result in any increase in subscriber rates. Nothing shall prohibit Franchisee, however, from taking rate increases in the ordinary course of business in compliance with local, state and federal laws that are not caused by the costs associated with the Transfer and Change of Control. B. (i) Franchisee hereby acknowledges and recognizes that the Ordinance sets forth the requirement that the Franchisee shall develop written procedures for the investigation and resolution of all subscribers or City resident complaints, including, but not limited to those regarding quality of service and equipment malfunction, and that such procedures shall be submitted for the review and approval by the City Manager. Notwithstanding the above, on or about December 21, 2001, Franchisee distributed to its subscribers the AT&T Broadband Policies and Practices (the "Policies"), which sets forth, in part, policies, complaint procedures and dispute resolutions for its cable subscribers. Franchisee agrees that within thirty (30) days following adoption of the Resolution, it will notify, in writing, all subscribers located within the City that Section 10 of the Policies has been withdrawn (as so amended by such withdrawal of Section 10, the "Amended Policies"). (ii) The City has reviewed the Amended Policies and, has found them acceptable in accordance with the requirements of the Ordinance. (iii) Franchisee hereby acknowledges that this Acceptance does not in any manner diminish or impair the rights of the City with respect to future violations and remedies available to the City under the Franchise Agreement or Ordinance and the City hereby waives any liquidated damages with respect to the alleged violation arising out of the Policies. (iv) Franchisee hereby agrees that any futura revisions of any and all customer service standards or policies or any such new standards and policies shall be submitted to the City before distribution to subscribers as required by the applicable provisions of the Franchise. (v) Franchisee agrees that in the event of a conflict between the Amended Policies and applicable law, the Franchise Agreement, the Ordinance and applicable law shall control over the Amended Policies. Franchisee and the City agree that their relationship is governed solely by the Franchise Agreement and the Ordinance and that the Amended Policies do not apply to the City. C. (i) Franchisee hereby acknowledges and recognizes that the Ordinance sets forth the requirement that the Franchisee shall develop written procedures for the investigation and resolution of all subscribers or City resident complaints, including, but not limited to those regarding quality of service and equipment malfunction, and that such procedures shall be submitted for the review and approval by the City Manager. Notwithstanding the above, on or about May 21, 2002, Franchisee distributed to its subscribers AT&T Broadband's Risk Assessment and Deposit Policy (the "Risk Assessment Policy"), which sets forth, in part, AT&T Broadband's intent to check potential subscribers credit history and implement policies on subscriber security deposits. Franchisee agrees that within thirty (30) days following adoption of the Resolution, it will notify, in writing, all subscribers located within the City that the Risk Assessment Policy has been amended to include non- discriminatory language, as set forth on Attachment 1 hereto (the "Amended Risk Assessment Policy"). (ii) The City has reviewed the Amended Risk Assessment Policy and has found it acceptable in accordance with the requirements of the Ordinance. (iii) Franchisee hereby acknowledges that this Acceptance does not in any manner diminish or impair the rights of the City with respect to future violations and remedies available to the City under the Franchise Agreement or Ordinance and the City hereby waives any liquidated damages with respect to the alleged violation arising out of the Risk Assessment Policy. (iv) Franchisee hereby agrees that any future revisions of any customer service standards and policies shall be submitted to the City before distribution to subscribers as required by the applicable provisions of the Ordinance. (v) Franchisee agrees that in the event of a conflict between the Amended Risk Assessment Policy and applicable law, the Franchise Agreement, the Ordinance and applicable law shall control over the Amended Risk Assessment Policy. Franchisee and the City agree that their relationship is governed solely by the Franchise Agreement and the Ordinance and that the Amended Risk Assessment Policy does not apply to the City. D. AT&T Broadband and certain of its affiliates and subsidiaries are the subject of a current investigation and administrative inquiry by the Attorney General of the State of Florida that may result in legal action against such entities. Franchisee agrees that it shall comply with all federal and state law, including any decision by the Attorney General of the State of Florida with respect to consumer protection and arising out of such investigation and inquiry. Franchisee further agrees that by consenting to the Transfer and Change of Control, the City shall not have waived any rights it may have to receive any benefits, for itself or for Franchisee's subscribers in the City, that are determined to be given by resolution of the Attorney General's investigation, whether through judicial decision, administrative action, settlement or voluntary agreement ("Resolution"). To the extent that the Resolution extends to other subscribers or municipalities in Florida, benefits as prescribed by the Attorney General, resulting out of its current investigation, for such other subscribers or municipalities shall automatically be made available to the City or Franchisee's subscribers in the City to the extent that the City or such subscribers have been subject to the same violations. 6. Franchisee shall cooperate in any franchise compliance inquiry, including but not limited to financial, customer service performance, call center records and financial and technical audits as specified under the terms and conditions of the Franchise. AT&T Comcast agrees that the records of the Franchisee, which are required to be maintained and are subject to inspection by the City, pursuant to the Franchise, shall be subject to inspection regardless of whether such records are maintained by Franchisee or AT&T Comcast, or any subsidiary or affiliate. 7. Franchisee agrees that the City does not waive any right to require compliance with the Franchise by Franchisee, whether or not any noncompliance is the subject of this Acceptance and hereby assumes responsibility for any and all non-compliance under the current Franchise Agreement and/or the Ordinance, even if such noncompliance is alleged to have occurred prior to the closing of the merger of AT&T Broadband and Comcast Corporation. 8. Franchisee shall deliver a letter to the City with respect to certain franchise matters. 9. This Exhibit A may be signed in counterparts. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] FURTHER AFFIANT SAYETH NAUGHT. COMMUNITY CABLE TELEVISION By: AT&T Broadband Management Corporation, as Managing Agent for TCI Central, Inc. and Tele- Communications of Colorado, Inc., the general partners of Community Cable Television Name: Title: STATE OF FLORIDA ) COUNTY OF ) BEFORE ME, the undersigned authority, personally appeared who is known to me person.ally (or provided proof of identification) and upon being first duly sworn acknowledged that ~iE~she executed the foregoing document freely and voluntarily and for the purpose therein expressed. ~~__W1TNESS my hand and official seal in the County and State last aforesaid this ? day of ~o~ary Public My Commi,ssij3n espires: AT&T COMCAST CORPORATION STATE OF ~3e,~-i~,~,~,~o~ ) ) SS: COUNTY OF ~,~&p~,,,,. ) By: Name: Title: STANLEY WANG Executive Vice President ~, the undersigned authority, personally appeared ~ke ~ ~s known to me persona-~(or provided proof of identification) and upon ~eing ~'~st duly sworn acknowledged that he / she executed the foregoing document freely and voluntarily and for the purpose therein expressed. WITNESS my hand and official seal in the County and State last aforesaid this v> day of ,2002. My Commission expires: 2q~tary Public NOTARIAL SEAL GRACE M. SAPINOSA. Notary Public City of Philadelphia, Phila. County M), COre'ss~on Expires July 20, 2006 J~u~,O90~ O?:~Sa Ot~ice oF Cit~ Manager 305-~66-8S1S ?~H~l~p.~ .k,g-O?-2~[lZ 1T:T? Fro~,,L.I~IBOWffZ & A$$0C, +$05536941? T-Gl? P.t)O$/Og? F-151 July 1~, 2002 ~ .~I&T Broadband Septemb~ 30, 2004. ii:' ,.'? ~:,;L~.~.~x:;,~:~' ; * ....~,~ e4b ~c~CC ~ & ~9~*~-~ ~.'~ ~ ' ,~''.' '~ :'' ..... . .~,' ~;~:..,.4- ~ .... ~' '~" T""u"~ '" ~ble . . -.'.', '-.. .. ~. ~e ~s will d~s~ss ~ ~m~ ~ ...... ~ ~ds ~ ~ ~A~' In ~cor~ ~ FCC ~0~0. . ,.~ , . ' ', ..... -~-. · By:. ~, ~u C (IS O~ 07:~8a O~ice o~ · Au~=O?-~.OOZ 17:17 Cit~ A'I T Broadband Jury l?, 2OO2 Mr,' Mai: Lelbowi~x, Esq. Asso~iales PA Lcibowi~z & , - ~,, S~a ~fi~al Ce~er Mi~, ~ 33131 M~ ~e~ AT&T Bro~b~ ~d Com~ C~raion Fo~ 394 ~plic~on Al you know, it is our posifion-~at under federal law, local franchisi~ aulhmities may am iasist'&at cable t'a,t~hise t~mnsfer applicants pay consulfia$ or lesal fees over and above the 5% ~ranohiac f~, See 47 U.S.C. § 542 and Charter Comtmmicafions v. County of Eama Cruz, No. C 99-0~874 ~ ('N,D. Cal. March 7, 2O0l), which directly ~ddtesses thin limitation, We undtaaia~d that you have a different position with respect to this issue due ~o the provisions in the franchises and/or ordinsac~s of some of your municipal clients. Howev~ v~l~ut gther your diems or our company waiving our respective positions or rights on ~ issue in other proce~itn~s or matters outside of this Side Letter Ai~reemeat, a~d in an effor~tto;assist the City of Av~mlira, FImida (the 'City") that you rePte~t in this process to finalize its review of the change of co.uo! of TCI TtCP- of South l~orida~ Inc. the francl2me for the Cky (~he 'Franchisee"), from AT&~T Corp. to AT&T Comcast Corpara~on (the "Change of Control,), we agree as follows: 1) ATZ'T Broadband CAT&TS") Ot the F~ancbisc~ will reimburse the City for iI~ res.~nable., out of pocket legal services incun~ in tevlewin& and approving the Change of Control process, up to a numimum of $20,100.00. The City or Leibowitz & infonnmion purpor~ only. AT&TB acknowled&es the [e§al relationship existing between ~he City and Leibowitz & A~sociates, .and u such, AT&'L'B shall not review the invoices for purposes of billh~s pra~ce~ ~ AT&T~. shell lhak :any, que~ons rel~ding such invoices to Leibowitz & Assochtes..and ishall ~ .to k~-p the invoices and any analysis confidential to the extent alMwed~by_law. :.Under~ no.~circurnstancer shall AT&TB comnmnicat~ with the Chy resmti~ the invoice~. AT&TB or Fmchiaee shall pay the City of Aventura no late~ than,thinyo~3,0);daTs s~er receiving such invoices. 2) ~s~,is ooadilioned ;on .out ,receipt ofi final approval oft. he Clump o~,a t-om th~ ~,C.!~y ,0p. ,,er L~ior to ,luly IS, ~.,2~Q2. iu a form et'resolution er ordinate substuetially sim. il~,~ substaace and form to ~3e Resolution and ASreemem ~ached hereto o~, if the~e u ~ ~b,. ~s~,. iai chan~ !n.~,9[ ~Utent to the Re~olutioa and Agreement, i~ shall be in suoh · form thai;is acceptable ~o bothAT&T and Comcast. If~e City de~ic~ the Chan~c of Control, or ~ppro'~cs. · fonu, ofresolutlo~ordinaucc, which is no~ acceptebl, ~o AT&T and. Comcast.the payrnentm ~he Ck'y shall no~ be made. . Thh paymen~ is~. further, condifi6ned upon the a~reement of Le/bowitz & Assocmtes. ~,kec'p,xhe~p~enh,.mcludin8 ~his-letter, confidcnthl ex~en~ allowed by law', provided, however, fhat. generic discussiom concerning cost recove~ tha~ do no~ d~sclose Ihe. amounts of Such~reimbUrsement sh~Jl not be deemed v/old, ions of this confidentiality~a~reeraent~. Communications rcgarding ~be payment made bct'ween the Cky a~i Letbow/te & Associates shall not constitute a v/~lafion of the ~erms of This a~eernent ' ..... 4) For ~e purposcs of this Side Letter A~eemen% such payments shall not constitute nor be considered an fees or any other amounts due from ~he l:ranchisee ~o the City. Ple~e si~ b~low that you acknowledge and a~ec te the conditions of this payment es set forth Imeht If ~ou~have._any questions, please, call mc a~ 954-534-7495. I, Matthew L. Lelboudtz, ,,,~*l~nrized ,represematiVe,o~Leiho.witz & Associates do hereby acknowledge and agree U~ the conditions se~ forth bere/n~ .. ~ Signed this Titl~ ~",~t,~ , 200:2 on behalf of the City of Aventura p.3 EXHIBIT D PERFORMANCE GUARANTY AGREEMENT CITY OF AVENTURA, a municipal corporation of the State of Florida, (hereinafter "City"), and TCI DEVELOPMENT, LLC , a De]_awa~e limited liability company (hereinafter, "Guarantor") and wholly owned by AT&T Corp. on behalf of itsel£and Franchisee. WHEREAS, Community Cable Television, a Wyoming general partnership, d/b/~ AT&T Broadband is the Franchisee under a Franchise Agreement granted pursuant to Resolution No. 98-12 and the documents thereunder (collectively the "Franchise"); and WHEREAS, at its meeting of July 18, 2002, the City Commission approved the Transfer and Change of Control o£ the Franchisee in adopting Resolution No. 2002- 66 ("Transfer and Change of Control"); and WHEREAS, the Consent and Unconditional Acceptance of Transfer and Change of Control of Franchisee approved by Resolution No. 2002-4t~ require Franchisee to furnish a Guaranty, with an acceptable guarantor securing performance of Franchisee's obligations under the City of Aventura, Florida Cable Television Ordinance No. 97-20, as amended by Ordinance No. 98-11 ("Ordinance"), Franchise Agreement and any and all agreements related thereto; and WHEREAS, Guarantor has agreed to deliver this Guaranty in conjunction with the City's consent to the Transfer and Change of Control. NOW, THEREFORE, in consideration of the above recitals, the covenants, and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows: 1. The Guarantor, on behalf of itself and Franchisee, (a) guarantees unconditionally to the City the due and punctual performance by Franchisee of each and every term, promise, covenant, condition, provision and obligation contained in the Franchise Agreement, the Resolution approving the Transfer and Change of Control, the Unconditional Acceptance, the Ordinance and any and all related agreements and resolutions, except to the extent that any term, promise, covenant, condition, provision or obligation is unenforceable under applicable law, and (b) agrees to cause Franchisee to comply with all obligations of the "Grantee" (as defined in the documents referenced herein) to be performed as provided in the Franchise Agreement and Ordinance, except to the extent that any term, promise, covenant, condition, provision or obligation is unenforceable under applicable law. 2. The guarantees set forth in paragraph 1 above shall be effective contemporaneously with the Transfer and Change of Control of the Franchisee and shall remain in effect until the first to occur of, (a) the termination of the Franchise; or (b) the termination, substitution, or cancellation of this Guaranty upon the City's prior written approval of a substitute guarantor, which approval shall not be unreasonably withheld. 3. Except as set forth in paragraph 2 above, no termination, amendment, waiver, or modification of this Guaranty or any of its terms or provisions shall be effective unless it is set forth in a written instrument signed by the Guarantor and the City. 4. Guarantor covenants and agrees that Guarantor may be joined in any action by the Franchisee or the City and that recovery may be had against Guarantor in such action without the City first bringing an action in court against Franchisee. Guarantor also agrees that, in any jurisdiction, it will be conclusively bound by the judgment in any such action by City against Franchisee (wherever brought) as if Guarantor were a party to such action, even though Guarantor is not joined as a party in such action. This Guaranty may be enforced against Guarantor pursuant to this Section 4 only upon a default by Franchisee; provided that Guarantor is given prior notice of such breach or default and an opportunity to cure such breach or default in accordance with the Franchise as if Guarantor was the Franchisee thereunder. 5. This Guaranty shall be deemed to have been made in the State of Florida. Guarantor consents to the jurisdiction of the courts of the State of Florida or to the United States District Court, Southern District, for the State of Florida. The fights and liabilities of City and Guarantor shall be determined in accordance with the laws of the State of Florida. 6. No delay on the part of the City in exercising any power or right hereunder shall operate as a waiver thereof. The powers and rights granted to City hereunder may only be waived upon the prior written consent of City, authorized by appropriate municipal action taken at a regular public meeting of the City Commission of City. 7. If any section, subsection, sentence, clause, phrase, or other portion of this Guaranty is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent portion, and such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect. IREMAINDER OF PAGE INTENTIONALLY LEFT BLANKI IN WITNESS WHEREOF, the Guarantor on behalf of itself has caused this Guaranty to be executed under seal by its duly authorized representative of the date first above written. TCI DEVELOPMENT, LLC (Guarantor) Name: Title: (Corporate Seal) STATE OF COLORADO ) COUNTY OF ARAPAHOE ) ^ . ,BEFORE., ME, the undersigned authority, personally appeared ~-f~_~ ~). ~Q,~".~, , who is known to me personally (or provided proof of identification) and upon bJi~-g first duly sworn acknowledged that he/she executed the foregoing document freely and voluntarily and for the purpose therein expressed. )~C~ hand and official seal in the County and State last aforesaid this day of · ,2002. Notary Public My Commission Expires: WITNESSES: CITY OF AVEN .~ By: City Manager APPRC ~ff~DCI~o ;O~.. [ City Resolution 2002-44 Attachment 1 AT&T Broadband's Risk Assessment and Deposit Policy Effective May 28, 2002 Starting May 28, 2002, AT&T Broadband will implement a risk assessment and deposit program. AT&T Broadband will conduct a risk assessment on all new or reconnecting customers. Customers requesting service will be asked for their name, address and Social Security Number. (If a customer is unwilling to provide his or her Social Security Number, we will attempt to match that person using only his or her name and address. AT&T Broadband's inability to locate applicant information resulting from the customer's unwillingness to provide a Social Security number may adversely affect the risk assessment). AT&T Broadband may utilize information available from credit reporting agencies to make the risk assessment. Based on our review, the customer may be required to provide a deposit to secure payment of his or her account. The deposit levels have been set initially at $ 50.00 and $100.00. All customers who are required to pay a deposit will be scm a letter, which will include information about our assessment and how to obtain additional information from any consumer reporting agencies utilized, as well as the Terms on which AT&T Broadband will hold, apply and refund deposits. The letter will be mailed within fifteen (15) business days following the deposit assessment. Detailed information about the Terms will be available to customers during the sales call upon request. AT&T Broadband shall not discriminate in the application of its Risk Assessment and Deposit Policy on the basis of race, color, sex, creed, rehgion, nationality, sexual orientation, or marital status. Any credit checks conducted by either AT&T Broadband or its third party credit bureau will be done in conformance with the requirements of all applicable state or federal laws. TERMS ON WHICH SECURITY DEPOSITS WILL BE HELD AND APPLIED BY AT&T BROADBAND If you have provided AT&T Broadband with a security deposit in connection with your subscription to cable television or cable interact services, AT&T Broadband will hold your deposit in an unsegregated interest-beating account as a general liability of the company holding the local franchise to serve the area in which you reside. During each calendar year, the account will accrue interest at a rate determined during the last week of the immediately preceding October equal to the effective rate (the effective annual yield) for new issues ofnne year Treasury bills (or if there are no such new issues, a representative average of the bid and asked yields for Treasury obligations having approximately one year remaining until maturity), rounded to the nearest whole percentage. Interest on the deposit will be calculated monthly and credited to your service account. The interest rate for 2002 is 2%. The deposit will be held and interest will accrue until either (i) the service is disconnected or (ii) the balance charged to the service account has been paid in full, within forty (40) days of the due date, for each six (6) consecutive months. Upon either event, interest will be calculated and added to the amount on deposit. For active customers, the deposit and accrued interest will then be applied to the account in the seventh month. Any remaining credit will be applied to the account in the eighth month, unless customer requests a refund of the remaining deposit. For disconnecting customers, the deposit and accrued interest will be applied to the balance, if any, owing on the account after any equipment has been returned and any amount remaining on the deposit will be refunded. A check in the amount of the refund will be mailed within 4-6 weeks of the date of(i) or (ii) above. The interest rate on deposits that are held on January 1 of any calendar year will be adjusted to the new rate determined in accordance with the f~rst paragraph above. If you have any questions regarding the status of your account or deposit, please call the Customer Service number shown on your monthly statement.