HomeMy WebLinkAboutC04-114 Comcast of Colorado/FloridaCv~--~l~-r°
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EAGLE COUNTY, COLORADO
CABLE TELEVISION AGREEMENT
WITH
COMCAST OF COLORADO/FLORIDA, INC.
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND EXI-IIBITS ..................................................................................2
(A) DEFINITIONS ..........................................................................................................................2
SECTION 2. GRANT OF AGREEMENT ..........................................................................................7
2.1 Grant ..........................................................................................................................................7
2.2 Use of Rights-of--Way ............................................................................................................... 8
2.3 Effective Date and Term of Agreement ....................................................................................9
2.4 Agreement Nonexclusive ..........................................................................................................9
2.5 Police Powers ............................................................................................................................9
2.6 Grant of Other Agreements .......................................................................................................9
2.7 Familiarity with Agreement ...................................................................................................... 9
2.8 Effect of Acceptance .................................................................................................................9
SECTION 3. AGREEMENT FEE PAYMENT AND FINANCIAL CONTROLS ......................... 10
3.1 Agreement Fee ........................................................................................................................ 10
3.2 Payments .................................................................................................................................. 10
3.3 Acceptance of Payment and Recomputation .......................................................................... 10
3.4 Annual Agreement Fee Reports .............................................................................................. 10
3.5 Audits ..............................................:....................................................................................... 10
3.6 Late Payments ......................................................................................................................... 11
3.7 Underpayments ........................................................................................................................ 11
3.8 Maximum Agreement Fee ...................................................................................................... 11
3.9 Additional Commitments Not Agreement Fees ..................................................................... 11
3.10 Tax Liability ............................................................................................................................ 12
3.11 Financial Records .................................................................................................................... 12
3.12 Payment on Termination ......................................................................................................... 12
SECTION 4. ADMINISTRATION AND REGULATION .............................................................. 12
4.1 Authority .................................................................................................................................. 12
4.2 Rates and Charges ................................................................................................................... 12
4.3 No Rate Discrimination .......................................................................................................... 13
4.4 Filing of Rates and Charges .................................................................................................... 13
4.5 Cross Subsidization ................................................................................................................. 13
4.6 Reserved Authority ................................................................................................................. 13
4.7 Time Limits Strictly Construed ............................................................................................. 13
4.8 Agreement Amendment Procedure ......................................................................................... 14
4.9 Performance Evaluations ........................................................................................................ 14
4.10 Late Fees .................................................................................................................................. 14
4.11 Force Majeure .......................................................................................................................... 15
SECTION 5. FINANCIAL AND INSURANCE REQUIlZEMENTS ..............................................15
5.1 Indemnification .......................................................................................................................15
5.2 Insurance ..................................................................................................................................16
5.3 Deductibles/Certificate of Insurance .......................................................................................17
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5.4 Collateral ...............................................................................................17
SECTION 6. CUSTOMER SERVICE ............................................................................................. 18
6.1 Customer Service Standards ................................................................................................... 18
6.2 Subscriber Privacy ................................................................................................................... 18
6.3 Subscriber Contracts ............................................................................................................... 18
6.4 Advance Notice to County ...................................................................................................... 18
6.5 Customer Service Location ..................................................................................................... 18
SECTION 7. REPORTS AND RECORDS .......................................................................................18
7.1 Open Records ..........................................................................................................................18
7.2 Confidentiality .........................................................................................................................19
7.3 Records Required ....................................................................................................................19
7.4 Annual Reports ........................................................................................................................20
7.5 Copies of Federal and State Reports .......................................................................................20
7.6 Complaint File and Reports ....................................................................................................20
7.7 False Statements ......................................................................................................................21
7.8 Inspection of Facilities ............................................................................................................21
SECTION 8. PROGRANIlVIING .......................................................................................................21
8.1 Broad Programming Categories ..............................................................................................21
8.2 Deletion or Reduction of Broad Programming Categories ....................................................21
8.3 Complimentary Cable Service ................................................................................................22
8.4 Obscenity .................................................................................................................................22
8.5 Parental Control Device ..........................................................................................................22
8.6 Continuity of Service Mandatory ............................................................................................23
SECTION 9. PEG ACCESS ..............................................................................................................23
9.1 Access Channel .......................................................................................................................23
9.2 Capital Contribution ................................................................................................................23
9.3 Replacement Capital Contributions ........................................................................................23
9.4 Management and Control of Access Channel ........................................................................24
9.5 Underutilized Access Channel ................................................................................................25
9.6 Access Channel on Basic Service ...........................................................................................25
9.7 Access Channel Assignments .................................................................................................25
9.8 Relocation of Access Channel ................................................................................................25
9.9 Technical Quality ....................................................................................................................25
9.10 Change in Technology ............................................................................................................25
9.11 Infonmation about Access Programming to Subscribers ........................................................26
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION ............................... 26
10.1 Right to Construct ................................................................................................................... 26
10.2 Right-of-Way Meetings .......................................................................................................... 26
10.3 General Standard ..................................................................................................................... 26
10.4 Permits Required for Construction ......................................................................................... 27
10.5 Emergency Permits ................................................................................................................. 27
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10.6 Compliance with Applicable Codes .......................................................................................27
10.7 GIS Mapping ..........................................................................................................................27
10.8 Minimal Interference ...............................................................................................................27
10.9 Prevent Injury/Safety ...............................................................................................................28
10.10 Hazardous Substances .............................................................................................................28
10.11 Locates .....................................................................................................................................28
10.12 Notice to Private Property Owners .........................................................................................29
10.13 Underground Construction and Use of Poles .........................................................................29
10.14 Undergrounding of Multiple Dwelling Unit Drops ................................................................30
10.15 Burial Standards ......................................................................................................................30
10.16 Electrical Bonding ...................................................................................................................30
10.17 Prewirine .................................................................................................................................31
10.18 Repair and Restoration of Property .........................................................................................31
10.19 Common Users ..................................................................................... ...................................31
10.20 Acquisition of Facilities ....................................................................... ...................................33
10.21 Discontinuing Use/Abandonment of Cable System Facilities ............ ...................................33
10.22 Movement of Cable System Facilities for County Purposes ............... ...................................33
10.23 Movement of Cable System Facilities for Other Agreement Holders ...................................34
10.24 Temporary Changes for Other Permitees ............................................ ...................................34
10.25 Reservation of County Use ofRight-of-Way ...................................... ...................................34
10.26 Rights-of--Way Vacation ...................................................................... ...................................34
10.27 Tree Trimming ..................................................................................... ...................................35
10.28 Inspection of Construction and Facilities ............................................ ...................................35
10.29 Codes .................................................................................................... ...................................35
10.30 Stop Work ............................................................................................ ...................................35
10.31 Standards .............................................................................................. ...................................36
10.32 Work of Contractors and Subcontractors ............................................ ...................................36
SECTION 11. CABLE SYSTEM CONFIGURATION, TECHNICAL STANDARDS AND
TESTING ............................................................................................................................................. 37
1 1.1 Subscriber Network ................................................................................................................. 37
1 1.2 County Needs .......................................................................................................................... 37
1 1.3 Standby Power ......................................................................................................................... 37
1 1.4 Emergency Alert Capability .................................................................................................... 37
1 1.5 Technical Performance ............................................................................................................ 38
1 1.6 Cable System Performance Testing ........................................................................................ 38
1 1.7 Additional Tests ...................................................................................................................... 39
SECTION 12. SERVICE AVAILABILITY AND SERVICE TO
SCHOOLS AND PUBLIC BUII,DINGS ...........................................................................................39
12.1 Universal Service ....................................................................................................................39
12.2 Service Availability ......................................................................:..........................................39
SECTION 13. AGREEMENT VIOLATIONS ..................................................................................40
13.1 Procedure for Remedying Agreement Violations ..................................................................40
13.2 Revocation ...............................................................................................................................41
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13.3 Procedures in the Event of Termination or Revocation .........................................................43
13.4 Receivership and Foreclosure .................................................................................................43
13.5 No Monetary Recourse Against the County ...........................................................................44
13.6 Alternative Remedies ..............................................................................................................44
13.7 Assessment of Monetary Damages .........................................................................................44
SECTION 14. AGREEMENT RENEWAL AND TRANSFER ......................................................45
14.1 Renewal ...................................................................................................................................45
14.2 Transfer of Ownership or Control ..........................................................................................45
SECTION 15. SEVERABII..ITY .......................................................................................................46
SECTION 16. MISCELLANEOUS PROVISIONS ..........................................................................46
16.1 Preferential or Discriminatory Practices Prohibited ...............................................................46
16.2 Notices .....................................................................................................................................46
16.3 Cumulative Rights ...................................................................................................................47
16.4 Venue .......................................................................................................................................47
16.5 Governing Law ........................................................................................................................47
16.6 Descriptive Headings ..............................................................................................................47
16.7 Publication Costs to be Borne by Grantee ..............................................................................47
16.8 Binding Effect .........................................................................................................................48
16.9 No Joint Venture ..................................................................................................................... 48
16.10 Waiver ..................................................................................................................................... 48
16.11 Reasonableness of Consent or Approval ................................................................................ 48
16.12 Entire Agreement .................................................................................................................... 48
16.13 Compliance with Federal, State and Local Laws ................................................................... 48
16.14 Force Majeure .......................................................................................................................... 48
16.15 Attorneys' Fees ........................................................................................................................ 48
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EAGLE COUNTY, COLORADO
AND
COMCAST OF COLORADO/FLORIDA, INC.
CABLE TELEVISION AGREEMENT
This Cable Television Agreement ("Agreement") is entered into in Eagle, Colorado, this
30th day of Mazch, 2004, by and between Eagle County, Colorado, hereinafter ("Grantor" or the
"County") and Comcast of Colorado/Florida, Inc. hereinafter known as ("Grantee"). Grantor and
Grantee aze sometimes referred to hereinafter collectively as the "parties."
WHEREAS, the Grantor has identified the future cable-related needs and interests of the
Grantor and its citizens, has considered the financial, technical and legal qualifications of Grantee,
and has determined that Grantee's plans for constructing, operating and maintaining its System aze
adequate, in a full public proceeding affording due process to all parties; and
WHEREAS, the public has had adequate notice and opportunity to comment on Grantee's
proposal to provide cable television service within the County; and
WHEREAS, the Grantor has a legitimate and necessary regulatory role in ensuring the
availability of state-of--the-art cable communications service, high technical capability and
reliability of Systems in its jurisdiction, the availability of local programming (including
governmental access programming) and quality customer service; and
WHEREAS, diversity in cable service and local and non-local programming is an important
policy goal and the Grantee's System should offer a wide range of programming services; and
WHEREAS, flexibility to respond to changes in technology, subscriber interests and
competitive factors within the cable service market should be an essential characteristic of this
Agreement and both the Grantor and the Grantee will address maximum system flexibility to take
advantage of new technology to benefit subscribers and citizens as such technology becomes
available; and
WHEREAS, the County is authorized by applicable law to grant one or more nonexclusive
agreements to construct, operate and maintain cable television systems within the boundaries of the
County.
NOW, THEREFORE, in consideration of the mutual promises made herein, and other good
and valuable consideration as provided herein, the receipt and adequacy of which aze hereby
acknowledged, Grantor and Grantee do hereby agree as follows:
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SECTION 1. DEFINITIONS AND EXffiBITS
A. DEFINITIONS
For the purposes of this Agreement, the following terms, phrases, words and their
derivations shall have the meaning given herein. When not inconsistent with the context, words
used in the present tense include the future, words in the plural include the singulaz, and words in
the singular include the plural. Words not defined shall be given their common and ordinary
meaning. The word "shall" is always mandatory and not merely directory.
"Access" includes Educational Access and Governmental Access and means the availability for
noncommercial use by various governmental and educational agencies, institutions, organizations,
groups and individuals in the County, including Grantor and its designees, of capacity on channel or
channels on the System to receive and distribute video programming to Subscribers, as permitted
under applicable law, including, but not limited to:
"Educational Access" means Access where Schools aze the primary users having editorial control
over programming and services. For purposes of this definition, School means any State accredited
educational institution, public or private, including for example, primary and secondary Schools,
excluding home Schools.
"Governmental Access" means the availability of Channel capacity on the Cable System for
noncommercial use by various agencies and institutions, including the County and its designees,
and where governmental institutions or their designees aze the primary users having editorial
control over programming and services.
"Access Channel" means any Channel, or portion thereof, designated for Access purposes or
otherwise made available to facilitate or transmit Access programming or services.
"Access Fees" means the Capital Contributions paid to the Grantor by the Grantee in accordance
with Section 9.
"Activated" means the status of any capacity or part of the Cable System in which any Cable
Service requiring the use of that capacity or part is available without further installation of system
equipment, whether hazdwaze or softwaze.
"Affiliate," when used in connection with Grantee, means any Person who owns or controls, is
owned or controlled by, or is under common ownership or control with, Grantee.
"Agreement Area" means the unincorporated area within the jurisdictional boundaries of the
County, and also includes, by way of illustration and not limitation, unincorporated azeas where
there aze Home Owners Associations, Metro Districts, Private Communities and any azeas annexed
by the County during the term of this Agreement. To the extent that another agreement between the
County and affiliates of Grantee (which aze currently Comcast of Colorado VI, LLC and Comcast
of Colorado VII, LLC) is in existence and in full force and effect, that other agreement with
Comcast of Colorado VI, LLC and Comcast of Colorado VII, LLC will govern the terms and
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conditions between the County and Comcast of Colorado VI, LLC and Comcast of Colorado VII,
LLC with respect to Cable Service provided in Edwazds, and other unincorporated azeas in the
County near Avon and Vail so that Grantee is not subject to duplicative requirements.
"Agreement Fee" means that fee payable to the County as described in Section 3.
"Bad Debt" means amounts lawfully billed to a Subscriber and owed by the Subscriber for Cable
Service and accrued as revenues on the books of Grantee, but not collected after reasonable efforts
have been made by Grantee to collect the chazges.
"Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission of
local television Broadcast Signals and local Access programming.
"Broadcast Si ial" means a television or radio signal transmitted over the air to a wide geographic
audience, and received by a Cable System by antenna, microwave, satellite dishes or any other
means.
"Cable Acts" means the Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992, and as amended by the
Telecommunications Act of 1996, and any amendments thereto.
"Cable Internet Service" or "Cable Modem Service" means any Cable Service offered by Grantee
whereby Persons receive access to the Internet through the Cable System.
"Cable Operator" means any Person or group of Persons, including Grantee, who provides Cable
Service over the System in the Agreement Area and directly or through one or more Affiliates owns
a significant interest in such System or who otherwise control(s) or is (are) responsible for, through
any arrangement, the management and operation of the System.
"Cable Service" means the one-way transmission to Subscribers of video programming or other
programming service, and Subscriber interaction, if any, which is required for the selection or use
of such video programming or other programming service.
"Cable System" or "item" means any facility including Grantee's, consisting of a set of closed
transmissions 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 a community, but such term does not include (A) a facility that serves
only to retransmit the television signals of one or more television broadcast stations; (B) a facility
that serves Subscribers without using any Right-of--Way; (C) a facility of a common carrier which is
subject, in whole or in part, to the provisions of Title II of the federal Communications Act (47
U.S.C. 201 et seq.), except that such facility shall be considered a Cable System (other than for
purposes of Section 621(c) (47 U.S.C. 541(c)) to the extent such facility is used in the transmission
of video programming directly to Subscribers, unless the extent of such use is solely to provide
interactive on-demand services; (D) an open video system that complies with federal statutes; or (E)
any facilities of any electric utility used solely for operating its electric utility systems.
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"Channel" means a portion of the electromagnetic frequency spectrum which is used in the Cable
System and which is capable of delivering a television channel (as television channel is defined by
the FCC by regulation).
"Commercial Subscribers" means any Subscribers other than Residential Subscribers.
"Coon " is Eagle County, Colorado, a body politic and corporate under the laws of the State of
Colorado, and all of the unincorporated areas (excluding incorporated municipalities) within its
boundaries, as such may change from time to time including by annexations.
"County Commissioners" means the Eagle Boazd of County Commissioners, or its successor, the
governing body Eagle County, Colorado.
"Designated Access Provider" means the entity or entities designated now or in the future by the
County to manage or co-manage Access Channels and facilities. The County may be a Designated
Access Provider.
"Downstream" means carrying a transmission from the Headend to remote points on the Cable
System or to Interconnection points on the Cable System.
"Dwelling Unit" means any building, or portion thereof, that has independent living facilities,
including provisions for cooking, sanitation and sleeping, and that is designed for residential
occupancy. Buildings with more than one set of facilities for cooking shall be considered Multiple
Dwelling Units unless the additional facilities aze cleazly accessory.
"Expanded Basic Service" means the Tier of video programming services, which is the level of
Cable Service received by most Subscribers above Basic Service, and does not include Premium
Services.
"FCC" means the Federal Communications Commission.
"Fiber Optic" means a transmission medium of optical fiber cable, along with all associated
electronics and equipment, capable of carrying Cable Service or Institutional Network service by
means of electric lightwave impulses.
"GAAP" means generally accepted accounting principles.
"Generally Applicable" means, when referenced to ordinances, laws or regulations, legal
obligations that are applied generally and not limited solely to Grantee.
"Grantee" means any Person or groups of Persons, including Grantee, who provide(s) Cable Service
over a Cable System and directly or through one or more affiliates owns a significant interest in
such Cable System or who otherwise control(s) or is (aze) responsible for, through any arrangement,
the management and operation of such a Cable System. Grantee means Comcast of
Colorado/Florida, Inc. to the extent this entity operates a Cable System in the County, or its lawful
successors, transferees or assignees.
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"Gross Revenues" means any and all revenue received by Grantee, or by any other entity that s a
Cable Operator of the Cable System including Grantee's Affiliates, from the operation of the
Grantee's Cable System to provide Cable Services in the Agreement Area. Gross Rev es
include, by way of illustration and not limitation, monthly and other fees charged Subscribers for
Cable Services including Basic Service, any expanded tiers of Cable Service, other tiers of C ble
Service, optional Premium Cable Services, Cable Service installation, disconnection, reconnec 'on
and change-in-service fees, Leased Access Channel fees, remote control rental fees, all C le
Service lease payments from the Cable System, late fees and administrative fees, fees, paymen or
other consideration received by the Grantee from programmers for carriage of Cable Services on
the Cable System and accounted for as revenue under generally accepted accounting princi les
(GAAP), revenues from rentals of converters or other Cable System equipment used to rec 've
Cable Service, advertising sales revenues (including local, regional and a pro rata share of nati al
advertising carried on the Cable System in the Agreement Area), the fair market value of
consideration received by the Grantee for use of the Cable System to provide Cable Service d
accounted for as revenue under GAAP, revenues from program guides, additional outlet f es,
revenue from Cable Internet Service to the extent this service is considered a Cable Service as
further described below, Agreement Fees, revenue from interactive services to the extent they e
considered Cable Services under federal law, revenue from the sale or carriage of other C le
Services on the Cable System, and revenues from home shopping. Gross Revenues shall incl de
revenue received by any entity other than the Grantee where necessary to prevent evasion or
avoidance of the obligation under this Agreement to pay the Agreement Fees. Gross Reven es
shall not include (i) Bad Debt, provided, however, that all or part of any such Bad Debt tha is
written off but subsequently collected shall be included in Gross Revenues in the period collect ;
or (ii) any taxes on services furnished by the Grantee which are imposed directly on any Subscri er
or user by the State, County or other governmental unit and which are collected by the Grantee on
behalf of said governmental unit; or (iii) any capital contributions as required by Section 9 of 's
Agreement. The Agreement Fees are not a tax, and are therefore included in Gross Revenues.
In a Declaratory Ruling and Notice of Proposed Rulemaking released March 15, 2002, the F C
stated that Cable Modem Service is not a Cable Service under the Communications Act of 1934 as
amended, and initiated a Rulemaking to, among other things, examine the states' and to al
governments' authority to regulate Cable Modem Service and the scope of the FCC's jurisdictio to
regulate Cable Modem Service. If the FCC's March 15, 2002 ruling that Cable Modem Servic is
not a Cable Service is modified in a final, nonappealable decision by the FCC or in a Court of
competent jurisdiction, or under any change in applicable federal law, including but not limite to
Congressional legislation, to the extent that Cable Modem Service is determined to be a Ca le
Service within the jurisdiction of a local regulatory/franchising authority and revenue from Ca le
Modem Service may be included as Gross Revenues derived from the operation of the Ca le
System to provide Cable Services for purposes of paying franchise fees or Agreement F es
collected by local regulatory/franchising authorities, then the definitior- of Gross Revenues s all
include revenues the Grantee receives from providing Cable Internet Service in the Agreem t
Area.
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"Headend" means any facility for signal reception and dissemination on a Cable System, inclu ' g
cables, antennas, wires, satellite dishes, monitors, switchers, modulators, and processors for
providing Cable Services, and any other related equipment and facilities.
"Leased Access Channel" means any Channel or portion of a Channel of the Cable Sys em
available to the public in a manner consistent with 47 USC Section 532 for commercial use by
Persons other than Grantee, for a fee or chazge.
"Noncommercial" means, in the context of Access Channels, that particular products and servi
aze not promoted or sold. This term shall not be interpreted to prohibit an Access Channel oper
or programmer from soliciting and receiving financial support to produce and transmit vi•
programming on an Access Channel, or from acknowledging a contribution, in the manner of
Corporation for Public Broadcasting or some similaz manner, subject to applicable law.
"Normal Business Hours" means those hours during which most similaz businesses in the Co ty
aze open to serve customers. Normal business hours is encouraged to include some evening ho at
least one night per week and/or some hours on Saturday.
"Normal Operating Conditions" means those service conditions that aze within the control of e
Grantee. Those conditions which aze not within the control of the Grantee include, but are of
limited to, natural disasters, civil disturbances, power outages, telephone network outages, d
severe or unusual weather conditions. Those conditions which aze ordinarily within the control of
the Grantee include, but aze not limited to, special promotions, pay-per-view events, rate increas s,
regulaz peak or seasonal demand periods and maintenance or upgrade of the System.
"Person" means any individual, sole proprietorship, partnership, association, or corporation, or
other form of entity or organization.
"Premium Service" or "Pay Service" means programming choices (such as movie Channels, pe
per-view programs, or video on demand) offered to Subscribers on aper-Channel, per-program
per-event basis.
"Residential Subscriber" means any Subscriber who receives Cable Service delivered to single
multiple dwelling units, excluding such Dwelling Units billed on abulk-billing basis.
"Ri t-of--Way" means each of the following which have been dedicated to the public or
hereafter dedicated to the public and maintained under public authority or by others and loc
within the Agreement Area: streets, roadways, highways, avenues, lanes, alleys, bridges, sidew~
easements, rights-of--way and similaz public property and azeas.
"School" means any State accredited K-12 public or private educational institution (excluding
schools).
"Service Interruption" means the loss of picture or sound on one or more cable channels.
"State" means the State of Colorado.
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or
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"Subscriber" means any Person in the Agreement Area who or which elects to subscribe to, for
purpose, Cable Service provided by Grantee by means of or in connection with the Cable Sys
and whose premises aze physically wired and lawfully Activated to receive Cable Service fi
Grantee's Cable System.
"Subscriber Network" means that portion of the Cable System used primarily by Grantee in
transmission of Cable Services to Residential Subscribers.
"Tier" means a group of Channels for which a single periodic subscription fee is chazged.
"Two-Way" means Upstream and Downstream transmissions.
"Upstream" means carrying a transmission to the Headend from remote points on the Cable
or from Interconnection points on the Cable System.
"Video Pro~xamming" means programming provided by, or generally considered
programming provided by, a television broadcast station.
SECTION 2. GRANT OF AGREEMENT
2.1 Grant
(A) The County hereby grants to Grantee a nonexclusive authorization to m;
reasonable and lawful use of the Rights-of--Way within the County to construct, operate, maint<
reconstruct, rebuild and upgrade a Cable System for the purpose of providing Cable Service subj
to the terms and conditions set forth in this Agreement. This Agreement shall constitute botl
right and an obligation to provide the Cable Services required by, and to fulfill the obligations
forth in, the provisions of this Agreement.
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(B) The Grantee, through this Agreement, is granted the right to operate its Sys
using the Grantor's Rights-of--Way within the Agreement Area in compliance with all la ly
enacted Generally Applicable construction codes and regulations. The Grantee specifically agrees to
comply with the lawful provisions of Generally Applicable County ordinances and resoluti ns
passed pursuant to lawful police powers provided that in the event of a conflict between e
provisions of ordinances or resolutions and the Agreement, the express provisions of the Agreem nt
shall govern. This Agreement constitutes a valid and enforceable contract between the parti s.
Subject to federal and state preemption, this Agreement may not be unilaterally altered by e
Grantor through subsequent amendment to any ordinance, rule, regulation, resolution, or o er
enactment of Grantor, except in the lawful exercise of Grantor's police power. Grantee reserves e
right to challenge provisions of any ordinance, rule, regulation, resolution or other enactment of e
Grantor that conflicts with its legal or contractual rights, either now or in the future.
(C) This Agreement shall not be interpreted to prevent the County from
additional lawful conditions, including additional compensation conditions for use of the
Way, should Grantee provide service other than Cable Service.
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(D) Grantee promises and guarantees, as a condition of exercising the privileges gra
by this Agreement, that any Person who is a Grantee of this System directly involved in the offe
of Cable Service in the Agreement Area, or directly involved in the management or operation o
Cable System in the Agreement Area, will also comply with the terms and conditions of
Agreement.
(E) No rights shall pass to Grantee by implication. Without limiting the foregoing, by
way of example and not limitation, this Agreement shall not include or be a substitute for:
(1) Any other permit or authorization lawfully required and Gene lly
Applicable for the privilege of transacting and carrying on a business within the County that ma be
required by the Generally Applicable ordinances and laws of the Count}
(2) Any permit, agreement, or authorization lawfully required by the County d
Generally Applicable for Right-of--Way users in connection with operations on or in Rights-of- ay
or public property including, by way of example and not limitation, street cut permits; or
(3) Any permits or agreements lawfully required and Generally Applicable
occupying any other property of the County or private entities to which access is not specific
granted by this Agreement including, without limitation, permits and agreements for plat
devices on poles, in conduits or in or on other structures.
(F) This Agreement does not authorize, prohibit or condition Grantee's provision of
telecommunication services in the Agreement Area. This Agreement is not a bar to the imposi on
of any lawful conditions on Grantee with respect to non-Cable Services, telecommunicati ns
services or information services, whether similar, different or the same as the condition spec'fy
herein. This Agreement does not relieve Grantee of any obligation it may have to obtain from e
County any such authorization that may lawfully be required in order to provide non-Ca le
Services, telecommunications services or information services. However, this Agreement shall of
be read as a concession by Grantee that it needs authorization to provide non-Cable Servic s,
telecommunications services or information services.
2.2 Use of Rights-of--Way
(A) Subject to the County's lawful and Generally Applicable permitting, supervision
control, Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, c
under, upon, across, and along the Rights-of--Way within the County such wires, cables, conduce
ducts, conduits, vaults, manholes, amplifiers, pedestals, attachmenxs and other property
equipment as are necessary and appurtenant to the operation of a Cable System within the Coun~
(B) Grantee must follow County established requirements for placement of
System facilities in Rights-of--Way, including the specific location of facilities in the ltigb
Way, and must in any event install Cable System facilities in a manner that minimizes interfe
with the proper use of the Rights-of--Way by others, including others that may be inst
communications facilities. Grantee shall comply with all Generally Applicable construction c
laws, ordinances, regulations, and procedures, and must obtain any and all necessary permits
the County prior to commencing any construction activities.
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2.3 Effective Date and Term of Agreement
This Agreement and the rights, privileges and authority granted hereunder shall take effect
Mazch 30, 2004 (the "Effective Date"j, and shall terminate twelve (12) years thereafter on Ma
29, 2016, unless terminated sooner as hereinafter provided.
2.4 Agreement Nonexclusive
This Agreement shall be nonexclusive, and subject to all prior rights, interests, easements or
licenses granted by the County to any Person to use any Right-of--Way, for any purpose whatsoe r,
including the right of the County to use same for any purpose it deems fit, including the same or
similaz purposes allowed Grantee hereunder. The County may at any time grant authorization to
use the Rights-of--Way for any purpose not incompatible with Grantee's authority under 's
Agreement and for such additional agreements for Cable Systems as the County deems appropri to
consistent with the other provisions herein.
2.5 Police Powers
Grantee`s rights hereunder aze subject to the lawful police powers of the County to adopt
enforce ordinances necessazy to the safety, health, and welfare of the public, and Grantee agree
comply with all Generally Applicable laws and ordinances lawfully enacted, or hereafter enac
by the County or any other legally constituted governmental unit having lawful jurisdiction over
subject matter hereof pursuant to such police powers. The County shall have the right to ads
from time to time, such ordinances as may be deemed necessary in the exercise of its lawful po
power; provided that such ordinances shall be reasonable. Grantee reserves the right to challe
provisions of any ordinance, rule, regulation, resolution or other enactment of the Grantor ~
conflicts with its contractual rights, either now or in the future.
2.6 Grant of Other Agreements
In the event the County enters into an agreement, permit, license, authorization or other agreemi
of any kind with a similarly situated wireline cable operator other than the Grantee to enter into 1
County's Rights-of--Way for the purpose of constructing or operating a Cable System or providi
Cable Service to any part of the Agreement Area, in which the Grantee is actually providing Cal
Service under the terns and conditions of this Agreement or is required to extend Cable Service
under the provisions of this Agreement, the material provisions thereof, taken as a whole, shall
reasonably comparable to those contained herein.
2.7 Familiarity with Agreement
The Grantee and the County each acknowledge and warrant by acceptance of the rights, privile
and agreements granted herein, that it has cazefully read and fully comprehends the ten~ns
conditions of this Agreement and is willing to and does accept all lawful and reasonable risks of
meaning of the provisions, terms and conditions herein. The Grantee further acknowledges
states that it has fully studied and considered all requirements and provisions of this Agreemi
and finds that the same aze commercially practicable as of the effective date of this Agreement.
2.8 Effect of Acceptance
By accepting the Agreement, the Grantee: (1) acknowledges and accepts the County's legal right
issue and enforce the Agreement; (2) accepts and agrees to comply with each and every provision
9
~ ~
this Agreement subject to applicable law; (3) agrees to comply with each and every provisio of
applicable law; and (4) agrees that the Agreement was granted pursuant to processes and proced es
consistent with applicable law as existed as of the effective date of this Agreement, and that it "11
not raise any claim to the contrary.
SECTION 3. AGREEMENT FEE PAYMENT AND FINANCIAL CONTROLS
3.1 Agreement Fee
(A) As compensation for the benefits and privileges granted under this Agreement d
in consideration of permission to use the County's Rights-of--Way, Grantee shall pay as an
Agreement Fee to the County, throughout the duration of this Agreement, an amount equal to ve
percent (5%) of Grantee's annual Gross Revenues. Accrual of such Agreement Fee s all
commence 60 days after execution of this Agreement by the County and Grantee.
(B) The County recognizes that, in the future, Grantee may allocate revenue betv~
Cable Services (which aze subject to the Agreement Fee) and non-Cable Services (which aze
subject to the Agreement Fee but may be subject to other fees and/or taxes), when these two tr
of service aze bundled together in a discounted package offered to Subscribers. To the ex
discounts reduce revenues includable for purposes of calculating Agreement Fees, the Grantee ~
not unfairly or unlawfully allocate discounts for bundled services for the purpose of evac
payment of Agreement Fees to the Grantor.
3.2 Payments
In accordance with the Cable Act, the 12-month period applicable under the Agreement for e
computation of the Agreement Fee shall be a calendaz yeaz. Grantee's Agreement Fee paymen to
the County shall be computed quarterly for the preceding calendaz quarter ending Mazch 31, J e
30, September 30, and December 31. Each quarterly payment shall be due and payable no later
forty five (45) days after said dates.
3.3 Acceptance of Payment and Recomputation
No acceptance of any payment from Grantee shall be construed as an accord by the County that e
amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed a
release of any claim the County may have for further or additional sums payable or for e
performance of any other obligation of Grantee.
3.4 Annual Agreement Fee Reports
Grantee shall, with each Agreement Fee payment, furnish to the County a statement stating the t
amount of Gross Revenues for the quarter and all payments, deductions and computations for
period. Such statement shall be signed by the General Manager or a financial officer or contrc
of Grantee, stating that it accurately reflects the Gross Revenues of the Grantee, prior to submis:
to the County.
3.5 Audits
On an annual basis, upon thirty (30) days prior written notice, the County, including the Count
Auditor or his/her authorized representative, shall have the right to conduct an independent audit
Grantee's records reasonably related to the administration or enforcement of this Agreement,
of
in
10
• ~
accordance with GAAP. If the audit shows that Agreement Fee payments have been underpaid by
five percent (5%) or more, Grantee shall pay the total cost of the audit, such cost not to exceed ne
thousand dollars ($1,000.00). The County's right to audit and the Grantee's obligation to re in
records related to an Agreement Fee audit shall expire three (3) years after each Agreement ee
payment has been made to the County.
3.6 Late Payments
In the event any payment due annually is not received within sixty (60) days from the end of e
calendaz quarter, Grantee shall pay interest on the amount due (at the prime rate as listed in the all
Street Journal on the date the payment was due), calculated from the date the payment as
originally due until the date the County receives the payment.
3.7 Underpayments
If a net Agreement Fee underpayment is discovered as the result of an audit, Grantee shall
interest at the rate of the eight percent (8%) per annum, compounded semi-annually calculated f
the date each portion of the underpayment was originally due until the date Grantee remits
underpayment to the County. This interest on late payment shall not be included in the five per
threshold referenced above in Section 3.5.
3.8 Maximum Agreement Fee
The parties acknowledge that, at present, applicable federal law limits Grantor to collection of
Agreement Fee of five percent (5%) of Gross Revenues in any twelve (12) month period. In
event that at any time throughout the team of this Agreement, Grantor is authorized to collect
amount in excess of five percent (5%) of Gross Revenues in any twelve (12) month period, it n
do so with sixty (60) days written notice to Grantee, provided that all wireline cable operators in
Agreement Area over which the Grantor has jurisdiction are treated in an equivalent manner
provided that Grantor and Grantee hereby agree to negotiate in good faith and have met after th
(30) days written notice and then have mutually agreed to such increase and have mutually agr
to an amendment to this Agreement in connection therewith.
3.9 Additional Commitments Not Agreement Fees
Although the total sum of Agreement Fee payments and additional commitments set fo
elsewhere in this Agreement may total more than five percent (5%) of Grantee's Gross Revenues in
any 12-month period, Grantee agrees that the additional commitments regazding PEG capi 1
funding and Access Channels aze excluded from the definition of Agreement Fees herein and e
not Agreement Fees, nor aze they to be offset or credited against any Agreement Fee payments e
to Grantor, nor do they represent an increase in Agreement Fees to be passed through to Subscrib rs
pursuant to any federal law. Access Fees are not to be offset against and are not Agreement Fees so
long as and to the extent that the Access Fees aze used for PEG Access capital support. e
Grantee agrees not to assert or otherwise claim at any time before any court of compet t
jurisdiction or any administrative agency that, as of the effective date of this Agreement, that s h
PEG capital funding and Access Channels aze Agreement Fees as defined under federal or state 1 w
or regulations so as to form the basis for offset or credit against any and or all Agreement ee
payments paid or due to the County.
11
~s s
3.10 Taz Liability
The Agreement Fees are not a tax and shall be, subject to applicable law, in addition to any and all
taxes or other levies or assessments which aze now or hereafter required to be paid by businesse in
general by any law of the County, the State or the United States including, without limitati n,
utility, business, occupation, sales, use and other taxes, business license fees or other paym ts.
Payment of the Agreement Fees under this Agreement shall not exempt Grantee from the paym nt
of any other license fee, permit fee, tax or charge on the business, occupation, property or incom of
Grantee that may be lawfully imposed by the County. Other than the fee for the initial cap'tal
contribution and the Replacement Capital Contribution fees required in Section 9 herein, y
license fees, or separate taxes or chazges shall be of general applicability in nature and shall not be
levied against Grantee solely because of its status as a Cable Operator. The initial cap' 1
contribution and Replacement Capital Contributions fees aze not a tax.
3.11 Financial Records
Grantee agrees to meet with a representative of the County upon written request to review Grant
methodology of record-keeping, financial reporting, the computing of Agreement Fee obligati
and other procedures, the understanding of which the County reasonably deems necessary
reviewing reports and records.
3.12 Payment on Termination
If this Agreement terminates for any reason, the Grantee shall file with the County within nine
(90) calendar days of the date of the termination, a statement, certified by an independent certifi
public accountant, showing the Gross Revenues received by the Grantee since the end of 1
previous fiscal yeaz. ff not otherwise paid by Grantee, the County reserves the right after notice a
opportunity to cure as provided in Section 13 in this Agreement to satisfy any remaining financ
obligations of the Grantee to the County by utilizing the funds available in any security provided
the Grantee.
SECTION 4. ADNIINISTRATION AND REGULATION
4.1 Authority
(A) The County shall reasonably regulate the exercise of the privileges permitted by 's
Agreement in the public interest. The County may delegate its power and right or any part there f,
to the extent permitted under State and local law, to any agent provided, however, Grantees 1
have the right to appeal to the legislative body of the County any adverse determination made b a
delegate of the County.
(B) Nothing in this Agreement shall limit nor expand the County's right of
domain under State law.
4.2 Rates and Charges
All of Grantee's rates and chazges related to or regarding Cable Services shall be subject
regulation by the County to the full extent authorized by applicable federal, State and local laws.
to
12
+~ ~
43 No Rate Discrimination
All of Grantee's rates and chazges shall be published (in the form of apublicly-available rate c
and be non-discriminatory as to all Persons and organizations of similar classes, under sin
circumstances and conditions. Grantee shall apply its rates in accordance with governing
without regazd to race, color, ethnic or national origin, religion, age, sex, sexual orientation, mat
military or economic status, or physical or mental disability or geographic location within
County. Nothing herein shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or chazges in conjunction with
promotional campaigns; or
(B) The offering of reasonable discounts to senior citizens or
disadvantaged citizens; or
(C) The offering of rate discounts for Cable Service; or
(D) The Grantee from establishing different and nondiscriminatory rates and chi
and classes of service for Commercial Subscribers, as allowable by federal law and regulations.
4.4 Filing of Rates and Charges
(A) Throughout the term of this Agreement, Grantee shall maintain on file with
County a complete schedule of applicable rates and charges for Cable Services provided under
Agreement. Nothing in this subsection shall be construed to require Grantee to file rates
charges under temporary reductions or waivers of rates and charges in conjunction
promotional campaigns. As used in this subsection, no rate or chazge shall be considered tempo
if Subscribers have the ability over a period greater than six (6) consecutive months (or such o
period as may be approved by the County) to purchase Cable Services at such rate or chazge.
(B) Upon written request of the County, Grantee shall provide a complete schedule
current rates and chazges for Leased Access Channels, or portions of such Channels, provided
Grantee. The schedule shall include a description of the price, terms, and conditions established
Grantee for Leased Access Channels.
4.5 Cross Subsidization
Grantee shall comply with all applicable laws regazding rates for Cable Services and all
laws covering issues of cross subsidization.
4.6 Reserved Authority
The Grantee and the County each reserves all rights and authority arising from the Cable Act
any other relevant provisions of federal, State, or local law.
4.7 Time Limits Strictly Construed
Whenever this Agreement sets forth a time for any act to be performed by Grantee, such time
be deemed to be of the essence, and any failure of Grantee to perform within the allotted time
be considered a material breach of this Agreement, and sufficient grounds for the County to in
any relevant remedy.
13
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4.8 Agreement Amendment Procedure
Either party may at any time seek an amendment of this Agreement by so notifying the other p
in writing. Within thirty (30) days of receipt of notice, the County and Grantee shall meet to
discuss the proposed amendment(s). If the parties reach a mutual agreement upon the sugges ed
amendment(s), such amendment(s) shall be submitted to the County Commissioners for its
approval.
4.9 Performance Evaluations
(A) The County may hold performance evaluation sessions within thirty (30) days of
third anniversary dates of the Effective Date of this Agreement. All such evaluation sessions s]
be conducted by the County.
(B) Special evaluation sessions may be held at any time by the County during the
of this Agreement upon reasonable prior written notice to Grantee.
(C) All evaluation sessions shall be open to the public and announced at least two
weeks in advance in a newspaper of general circulation in the County. Grantee shall also incl
with or on the Subscriber billing statements for the billing period immediately preceding
commencement of the session, written notification of the date, time, and place of the reg
performance evaluation session, and any special evaluation session as required by the Cou
provided Grantee receives appropriate advance notice and provided the billing statement
reasonably accommodate such notification.
(D) Topics which may be discussed at any evaluation session may include, but aze
limited to, Cable Service rate structures; Agreement Fee payments; liquidated damages; applica
of new technologies; Cable System performance; Cable Services provided; programming offe
Subscriber complaints; privacy; amendments to this Agreement; judicial and FCC rulings;
extension policies; and the County or Grantee's rules; provided that nothing in this subsection s
be construed as requiring the renegotiation of this Agreement.
(E) During evaluations under this subsection, Grantee shall fully cooperate with e
County and shall provide such information and documents as the County may reasonably require to
perform the evaluation.
4.10 Late Fees
(A) For purposes of this subsection, any assessment, chazge, cost, fee or sum, how
characterized, that the Grantee imposes upon a Subscriber solely for late payment of a bill is a
fee and shall be applied in accordance with applicable local, state and federal law.
(B) Nothing in this subsection shall be deemed to create, limit or otherwise affect
ability of the Grantee, if any, to impose other assessments, chazges, fees or sums other than tl
permitted by this subsection, for the Grantee's other services or activities it performs in compli~
with applicable law, including FCC law, rule or regulation.
14
(C) The Grantee's late fee and disconnection policies and practices shall be
nondiscriminatory and such policies and practices, and any fees imposed pursuant to 's
subsection, shall apply equally in all parts of the County without regard to the neighborhood or
income level of the Subscriber.
4.11 Force Majeure
In the event Grantee is prevented or delayed in the performance of any of its obligations under 's
Agreement by reason beyond the control of Grantee, Grantee shall have a reasonable time, un er
the circumstances, to perform the affected obligation under this Agreement or to procur a
substitute for such obligation that is reasonably satisfactory to the County. Those conditions w ch
are not within the control of Grantee include, but are not limited to, natural disasters, ci '1
disturbances, power outages, telephone network outages, and severe or unusual weather conditi ns
which have a direct and substantial impact on the Grantee's ability to provide Cable Services in e
County and which was not caused and could not have been avoided by the Grantee using its
reasonable best efforts in its operations to avoid such results. To the extent any non-performanc is
the result of any force majeure condition, Grantee shall not be held in default nor have damn es
imposed by the County as a result thereof.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
(A) General Indemnification. Grantee shall indemnify, defend and hold the County d
its officers, officials, boards, commissions and employees harmless from any action or claim or
injury, damage, loss, liability, cost or expense, including court and appeal costs and attorneys' f es
or expenses, arising from any casualty or accident to Person or property, including, with ut
limitation, copyright infringement, defamation, and all other damages in any way arising out of, or
by reason of, any construction, excavation, operation, maintenance, reconstruction, or any other ct
done under this Agreement, by or for Grantee, its agents, or its employees, or by reason of y
neglect or omission of Grantee. Grantee shall reasonably consult and cooperate with the Co ty
while conducting its defense of the County.
(B) Indemnification for Relocation. Grantee shall indemnify the County for
damages, claims, additional costs or expenses assessed against, or payable by, the County ari;
out of, or resulting from, Grantee's failure to remove, adjust or relocate any of its facilities in
Rights-of--Way in a timely manner in accordance with any relocation lawfully required by
County to the extent the Grantee is lawfully required to pay relocation costs.
(C) Additional Circumstances. Grantee shall also indemnify, defend and hold
County harmless for any claim for injury, damage, loss, liability, cost or expense, including c
and appeal costs and attorneys' fees or expenses in any way arising out of:
(1) The lawful actions of the County in granting this Agreement to the
such actions are consistent with this Agreement and applicable law;
(2) Damages arising out of any failure by Grantee to secure consents from
owners, authorized distributors, or licensees/licensors of programs to be delivered by the Ca
15
System, whether or not any act or omission complained of is authorized, allowed or prohibited
this Agreement.
(D) Procedures and Defense. ff a claim or action arises, the County or any o er
indemnified party shall promptly tender the defense of the claim to Grantee, which defense shall be
at Grantee's expense. The County may participate in the defense of a claim in which it is name at
its own cost. Grantee may not agree as part of a settlement agreement that the County violated y
laws without the County's prior written approval which may not be unreasonably withheld.
(E) Duty of Defense. The fact that Grantee carries out any activities under 's
Agreement through independent contractors shall not constitute an avoidance of or defense to
Grantee's duty of defense and indemnification under this Section.
(F) Expenses. If separate representation to fully protect the interests of the County is
necessary, such as arising from a conflict of interest between the County and the counsel selected y
Grantee to represent the County, after all reasonable measures have been taken to prevent e
necessity of hiring separate counsel for the County, then the Grantee shall pay all reasona le
expenses incurred by the County in defending itself with regazd to any action, suit or procee ' g
indemnified by Grantee. The County's expenses shall include all reasonable out-of-poc et
expenses, such as consultants' fees, and shall also include the reasonable value of any servi es
rendered by the County Attorney or his/her assistants or any employees of the County or its age is
but shall not include outside attorneys' fees for services that are unnecessarily duplicative of
services provided the County by Grantee.
5.2 Insurance
(A) General Requirement. Grantee must provide insurance coverage as required he
or as provided in the Governmental Immunity Act (whichever is greater provided that Grantee
thirty (30) days advance written notice from Grantor of any increase in the amount of cove
required) during the entire term of this Agreement to protect the Grantor against claims for inju
to Persons or damages to property which in any way relate to, arise from or aze connected with
Agreement, or involve Grantee, its agents, representatives, contractors, subcontractors and t
employees.
(B) Initial Insurance Limits. Grantee must maintain in full force and effect at its
cost and expense during the Agreement term insurance in effect in accordance with the mini
insurance limits herein set forth. The Grantee shall provide insurance coverage in the folio
initial minimum insurance limits:
(1) Commercial General Liability: One million dollars ($1,000,000)
limit per occurrence for bodily injury, personal injury and property damage;
(2) Automobile Liability: One million dollars ($1,000,000) combined
limit per accident for bodily injury and property damage; and
(3) Employer's Liability: One million dollars ($1,000,000}.
16
L J
(4) Workers Compensation Insurance in accordance with state
requirements.
(5) If the insurance is cancelled or materially altered so as to be out of
compliance with the requirements of this Section within the term of this Agreement, Grantee s all
provide thirty (30) days written notice and a certificate reflecting a replacement policy. G ee
agrees to maintain continuous uninterrupted insurance coverage, in the amounts required, for e
duration of this Agreement.
53 Deductibles/Certificate of Insurance
(A) Any deductible of the policies shall not in any way limit Grantee's liability to e
County.
(1) The County, its officers, officials, boards, commissions and employees s all
be covered as, and have the rights of, additional insureds with respect to liability arising out of
activities performed by Grantee, or for which Grantee has assumed responsibility herein;
(2) Grantee's insurance coverage shall be primary insurance with respect to e
County, its officers, officials, boards, commissions and employees. Any insurance or self-' ce
maintained by the County, its officers, officials, boazds, commissions and employees shall be in
excess of the Grantee's insurance and shall not contribute to it; and
(3) Grantee's insurance shall apply separately to each insured against who a
claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability.
(B) Acceptability of Insurers. The insurance obtained by Grantee shall be placed
insurers with a Best's rating of no less than "A-."
(C) Verification of Coverage. The Grantee shall furnish the County with certificat s)
of insurance reflecting blanket additional insured status. The certificate(s) aze to be signed b a
Person authorized by that insurer to bind coverage on its behalf. The certificate(s) aze to be on
standard forms or such forms as aze consistent with standard industry practices.
(D) Self-Insurance. In the alternative to providing a certificate of insurance to
County certifying insurance coverage as required above, Grantee may provide self-insurance in
same amount and level of protection for Grantee and County, its officers, officials, boa
commissions and employees as otherwise required under this Section. The adequacy of s
insurance shall be subject to the periodic review and approval of the County.
5.4 Collateral
(A) Grantee shall provide and maintain in effect collateral as required by
Applicable County regulations.
(B) Before drawing on any such collateral, County shall follow the notice
cure procedures set forth in Section 13.1. Grantee shall have the right to appeal to the Cou
Commissioners for reimbursement in the event Grantee believes that the collateral was drawn u~
improperly. Grantee shall also have the right of judicial appeal if Grantee believes the collateral
17
~ ~
not been properly drawn upon in accordance with this Agreement. Any amounts the
erroneously or wrongfully withdraws from the collateral shall be returned to Grantee with u
from the date of withdrawal at a rate equal to the prime rate of interest as quoted in the Wall
Journal on the date the funds were withdrawn.
(C) Maintenance of the requisite collateral shall not in any way limit the liability of
Grantee for any failure to fully perform its obligations under this Agreement.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
Grantee shall comply with Customer Service Standards of the County adopted by Co ty
Ordinance as the same may be amended from time to time by the County Commissioners. Gran ee
reserves the right to challenge any customer service standazd that it believes is inconsistent with its
contractual rights under this Agreement.
6.2 Subscriber Privacy
Grantee shall fully comply with any provisions regazding the privacy rights of
contained in federal, State, or local law.
6.3 Subscriber Contracts
Grantee shall not enter into a contract with any Subscriber that is in conflict with the terms of
Agreement. Upon written request, Grantee will provide to the County a sample of the Subscr
contract or service agreement then in use.
6.4 Advance Notice to County
The Grantee shall use reasonable efforts to furnish any notices provided to Subscribers or the
in the normal course of business to the County in advance.
6.5 Customer Service Location
Throughout the Agreement term, the Grantee must maintain, at a minimum, one (1)
service location in Pitkin County or Garfield County.
SECTION 7. REPORTS AND RECORDS
7.1 Open Records
The County, including the County's Auditor or his/her authorized representative, shall have acc ss
to, and the right to inspect, any books and records of Grantee, and Affiliates that aze maintained in
the ordinary course of business and readily available at Grantee's local offices and which e
reasonably related to the administration or enforcement of the terms of this Agreement. Gran ee
shall not deny the County access to any such records on the basis that Grantee's records aze un er
the control of any Affiliate or a third party. The County may, in writing, request copies of any su h
records or books required under this Section 7 and Grantee shall provide such copies within
(30) days of the receipt of such request. One (1) copy of all reports and records required under 's
or any other subsection shall be furnished to the County, at the sole expense of Grantee. If e
requested books and records aze too voluminous, or for security reasons cannot be copied or
18
•
removed, then Grantee may request, in writing within ten (10) days of receipt of the Coun s
written request that the County inspect them at Grantee's local offices. If any books or recor of
Grantee aze not kept in a local office and not made available at the local offices or made availabl in
copies to the County upon written request as set forth above, and if the County reason ly
determines that an examination of such records is necessary or appropriate for the performanc of
any of the County's administration or enforcement of this Agreement, then all reasonable travel d
related expenses incurred in making such examination shall be paid by Grantee.
7.2 Confidentiality
The County agrees to treat as confidential any books or records that constitute proprietazy or
confidential information, to the extent Grantee makes the County awaze of such confidentiality d
consistent with applicable Open Records Laws. Grantee shall be responsible for cleazly d
conspicuously stamping the word "Confidential" on each page that contains confidential or
proprietary information, and shall provide a brief written explanation as to why such informatio is
confidential. If the County believes it must release any such confidential books and records in e
course of enforcing this Agreement, or for any other reason, it shall advise Grantee in advance so
that Grantee may take appropriate steps to protect its interests. If the County receives a dem d
from any Person for disclosure of any information designated by Gn~ntee as confidential, e
County shall, so faz as consistent with applicable law, advise Grantee and provide Grantee wi a
copy of any written request by the party demanding access to such information within a reasona le
time. Until otherwise ordered by a court or agency of competent jurisdiction, the County agr s
that, to the extent permitted by State and federal law, it shall deny access to any of Grantee's bo ks
and records mazked confidential as set forth above to any Person. Grantee shall reimburse e
County for all reasonable costs and attorneys fees incurred in any legal proceedings pursued un er
this Section to protect the confidentiality of Grantee's records.
7.3 Records Required
(A) Except as otherwise indicated herein, Grantee shall maintain for a period of
consistent with its document retention policies, and shall furnish to the County upon vc+~
request:
(1) As additional facilities aze added or modified, a complete set of trench a
strand maps. As-built maps including proprietary electronics shall be available at Grantee's offii
for inspection by the County's authorized representative(s) or agent(s) and made available to si
upon reasonable written notice during regulaz business hours, during the course of techni~
inspections as reasonably conducted by the County. These maps shall be certified as accurate as
the time they aze prepazed by an appropriate representative of the Grantee;
(2) A copy of all FCC filings on behalf of Grantee or Affiliates, which relate
the operation of the Cable System in the County and;
(3) A list of current Cable Services, rates and Channel line-ups.
(B) Subject to subsection 7.2, all information furnished to the County is pub
information, and shall be treated as such, except for information involving the privacy rights
individual Subscribers.
19
n
u
7.4 Annual Reports
Upon written request, but no more often than annually, Grantee shall submit to the County a wri en
report, in a form reasonably acceptable to the County, which shall include, but not necessarily be
limited to;
(A) A summary of the previous year's activities in the development of the Cable
and
(B) The number of homes passed, beginning and ending plant miles, and
technological changes occurring in the Cable System.
7.5 Copies of Federal and State Reports
Upon reasonable written request, Grantee shall submit to the County copies of all plead' s,
applications, notifications, communications and documents of any kind, submitted by Grantee to
any federal, State or local courts, regulatory agencies and other government bodies if s ch
documents directly relate to the operations of Grantee's Cable System within the County. Gran ee
shall submit such documents to the County no later than thirty (30) days after receipt of wri en
request. Grantee shall not claim confidential, privileged or proprietary rights to such docume is
unless under federal, State, or local law such documents have been determined to be confidential by
a court of competent jurisdiction, or a federal or State agency. With respect to all docume is
provided to any federal, State, or local regulatory agency as a routine matter in the due course of
operating Grantee's Cable System within the County, Grantee shall make such documents availa le
to the County upon reasonable written request.
7.6 Complaint File and Reports
Grantee shall make reasonable efforts to keep an accurate and comprehensive file of any and all
complaints it receives regarding the Cable System in a manner consistent with the privacy rights of
Subscribers, and Grantee's actions in response to those complaints. Upon reasonable wri en
request, this file shall be made available to the County during normal business hours. Upon wri en
request, Grantee shall provide the County an annual executive summary, which shall include e
following information:
(A) A summary of service calls, identifying the number and nature of the requests
their disposition;
(B) A log of all service interruptions;
(C) A summary of customer complaints referred in writing by the County to Grantee;
(D) Average response time for service calls;
(E) Such other information as reasonably requested by the County, provided
Grantee is given thirty (30) days prior written notice of such request before the end of the year.
20
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7.7 False Statements
Any false or misleading statement or representation in any report required by this Agreement
including clerical errors or errors made in good faith) may be deemed a material breach of ~
Agreement and may subject Grantee to all remedies, legal or equitable, which are available to
County under this Agreement or otherwise.
7.8 Inspection of Facilities
Except for Grantee's Headend, Grantor may inspect any of Grantee's facilities and eq
located in the Rights-of--Way or on other public property at any reasonable time during '
hours upon at least twenty-four (24) hours notice, ~or, in case of emergency, upon demand
prior notice taking into account public health, safety and welfare.
SECTION 8. PROGRANIlVIING
8.1 Broad Programming Categories
Grantee shall provide at least the following initial broad categories of programming to the
such categories are reasonably available:
(A) Educational programming;
(B) Colorado news, weather and information;
(C) Sports;
(D) General entertainment (including movies);
(E) Children/family-oriented;
(F) Arts, culture and performing arts;
(G) Foreign language programming;
(I~ Science/documentary;
(1) National news, weather and information.
8.2 Deletion or Reduction of Broad Programming Categories
(A) Grantee shall not delete or so limit as to effectively delete any broad category
programming within its control without the prior written consent of the County.
(B) In the event of a modification proceeding under federal law, the mix and quality
Cable Services provided by Grantee on the Effective Date of this Agreement must be maintain
after any such modification.
21
8.3 Complementary Cable Service
The Grantee, upon written request from the County, shall provide without chazge one outlet
Basic Service to those administrative buildings now existing or hereafter constructed and owe
and occupied or leased and occupied by the County, fire station(s), police and sheriff station
public libraries and School(s) provided further that those buildings aze passed by Grantee's Ca
System and provided further that these buildings aze akeady served or are within 125 aerial fee
Standazd Installation) of Grantee's Cable System, and excluding those buildings or portions
buildings that house or occupy prison/jail populations. Where County administrative office(s)
located in a multiuse building, Grantee shall on the same basis as it provides service to of
County administrative buildings under this Subsection 8.3, provide without charge one outlet
Basic Service to a County office in such building, provided that such free outlet shall not
extended to provide complimentary service to non-County offices or facilities in the building.
Grantee shall maintain complementary Basic Service to those locations that aze currently served
those outlets currently provided. Except where already existing, the Cable Service provided s
not be distributed beyond the originally installed outlet without authorization from Grantee.
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Such outlets may only be used for lawful purposes, shall not be located in public waiting azeas, or
shall the outlets be used to entertain public groups, or be used for commercial purposes. e
Grantor shall take reasonable precautions to prevent any use of the Grantee's Cable System in y
manner that results in inappropriate use thereof, or any loss or damage to the Cable System. In e
case of leased facilities, the recipient of service is responsible for securing approval for appropri to
right of entry suitable to the Grantee in its reasonable discretion. To the extent not inconsistent 'th
other provisions in this Agreement, the Grantor shall hold the Grantee harmless from any and all
liability or claims arising out of the use of Cable Service at County facilities and educatio al
facilities required by this Section. The Grantee shall not be required to provide an outlet to s ch
buildings where anon-Standard Installation is required, unless the Grantor or buil g
owner/occupant agrees to pay the incremental cost of any necessary Cable System extension an or
non-Standazd Installation. If additional outlets of Cable Service aze provided to such buil ' gs
beyond those required herein, the building owner/occupant shall pay the usual installation d
service fees associated therewith. The Cable Service described herein is a voluntary initiative of
Grantee, but shall be provided throughout the term of this Agreement so long as the buildings m t
the above requirements and unless or until the County requests that service be discontinued.
8.4 Obscenity
Grantee shall comply with all relevant provisions of law relating to obscenity.
8.5 Parental Control Device
Upon request by any Subscriber, Grantee shall provide by sale or lease a pazental control or ]
device, traps or filters to enable a Subscriber to prohibit viewing of a particulaz Cable
during periods selected by the Subscriber. Grantee shall inform its Subscribers of the availat
the lockout device at the time of their initial subscription and periodically thereafter. Any
offered shall be at a rate, if any, in compliance with applicable law.
itvl of
22
~ ~
8.6 Continuity of Service Mandatory
(A) It shall be the right of all Subscribers to continue to receive Cable Service
Grantee insofaz as their financial and other obligations to Grantee are honored. The Grantee
use reasonable efforts so as to ensure that all Subscribers receive continuous, uninterrupted ~
Service regazdless of the circumstances. For the purposes of this subsection, "uninterrupted"
not include short-term outages of the Cable System for maintenance, upgrade or testing.
(B) In the event of a change of Grantee, or in the event a new grantee acquires the
System in accordance with this Agreement, the new grantee shall notify Subscribers and cos
with the County, in maintaining continuity of Cable Service to all Subscribers.
(C) Failure of Grantee to operate the Cable System for forty-eight (48) c
hours without prior approval of the County Administrator, or without just cause, shall be
a material violation of this Agreement.
SECTION 9. PEG ACCESS
9.1 Access Channel
Within one hundred eighty (180) days of Grantee receiving written request from the C~
Grantee shall provide at no cost to the County, one (1) Downstream Government Access Cl
on the Cable System for Noncommercial educational and governmental Access purposes.
Access Channel shall meet performance specifications required by the FCC and shall be at a
quality level at least consistent with the other Channels provided by Grantee on the System.
9.2 Capital Contribution
Within thirty (30) days of the effective day of this Agreement, Grantee shall provide the Coun a
one time capital contribution of Fifteen Thousand Dollars ($15,000.00) which the County shall e
to purchase Access equipment. In accordance with Federal law, Grantee has the right to and m y
elect to recover this initial capital contribution from Residential Subscribers (excluding free servi e
accounts and bulk billing accounts). If Grantee elects to recover this initial capital contributi
Grantee shall notify the County when the initial capital contribution has been fully recovered.
9.3 Replacement Capital Contributions
If Grantee has elected to and has recovered the initial capital contributior. or after the lapsing of fo
(4) yeazs (whichever occurs first), Grantor may by written notice, direct Grantee to pay to t
Grantor a fee based upon the formula of up to 50 cents per Residential Subscriber per month
Replacement Capital Contributions (excluding free service accounts and bulk billing accounts).
accordance with Federal law, Grantee has the right to and may elect to recover Replacement Capi1
Contributions from Residential Subscribers (excluding free service accounts and bulk billy
accounts) and with respect to Replacement Capital Contributions, Grantee shall be obligated to p.
no more than the amount it actually receives from Residential Subscribers (excluding free servi
accounts and bulk billing accounts). Prior to directing Grantee to pay any amounts for Replaceme
Capital Contributions, the Grantor shall hold a public meeting regazding the consideration
whether the Grantor shall direct Grantee to pay Replacement Capital Contributions to the Grants
Upon conclusion of such a public meeting, and if the Grantor determines that Replacement Capi1
Contributions shall be paid, such Replacement Capital Contributions will be payable by Grantee
23
the Grantor. The Replacement Capital Contributions may only be applied by the County
capital expenditures related to PEG Access.
After the Replacement Capital Contributions take effect, each payment shall be due and
with the quarterly Agreement Fee payment. As per Section 16.9, Grantee is not an agent of
and it is Grantee's decision whether to collect the initial capital contribution and Reply
Capital Contributions from Subscribers. Notwithstanding anything to the contrary in this
9.3, Grantee shall not be responsible for paying the Replacement Capital Contributions with
to gratis or bad debt accounts.
The County shall have discretion to allocate the Replacement Capital Contributions in accorda
with applicable law, provided that the County submits a summary of capital expenditures from
Replacement Capital Contributions to Grantee within sixty (60) days of the end of each caler.
year. The County may institute, reinstitute or waive the requirement of Grantee to m
Replacement Capital Contributions to Grantor altogether, provided that Grantee is given sixty
days advance written notice.
To the extent the County makes Access capital investments using County funds prior to rece
necessary Replacement Capital Contributions, the County is entitled to apply subse
Replacement Capital Contributions payments from Grantee towazd such County c
investments. If the Grantee elects to collect the initial capital contribution or the ReplacE
Capital Contributions from Subscribers, the County and Grantee agree that the initial c
contribution and any Replacement Capital Contributions will then be referred to on Subsc~
bills as a "PEG Fee", or language substantially similaz thereto. Grantee shall not change
reference on the Subscribers' bills without the prior written consent of the County, which ca
shall not be unreasonably withheld.
The Fifteen Thousand Dollars ($15,000.00) capital contribution and the Replacement Cal
Contributions payments described in this Section shall not be considered revenue for the purp~
of calculating and aze not an advance against any Agreement Fees and Grantee shall not be enti
to any offset or deduction from Agreement Fees paid or owed to the County for any such amoi
so long as the Fifteen Thousand Dollars ($15,000.00) capital contribution and Replacement Cal
Contributions aze used for PEG Access capital support purposes. The Grantee shall have
opportunity to review records of the County and/or its Designated Access Providers regazding
use of such funds.
9.4 Management and Control of Access Channel
The County shall have sole and exclusive responsibility for identifying the Designated Aca
Provider and allocating the Access resources under this Section. The County may author.
Designated Access Provider to control and manage the use of any and all Access facilities provid
by Grantee under this Agreement, including, without limitation, the operation of Access Charm
To the extent of such designation by the County, the Designated Access Provider shall have si
and exclusive responsibility for operating and managing such Access facilities. The County or
designee may formulate rules for the operation of the Access Channel, consistent with tl
Agreement. Grantee shall cooperate with the County and Designated Access Provider in the use
the Cable System and Access facilities for the provision of Access. Nothing herein shall prohi
24
the County from authorizing itself to be a Designated Access Provider. Nothing herein
prohibit the County from assigning several Designated Access Providers to shaze a single A
Channel.
The assigned Access Channel can be used to transmit signals in any format that is technic
compatible with the Cable System, including, by way of example and not limitation, analog
digital video, audio only, secondary audio and/or text messages and video streaming. Such
must be in furtherance of Access purposes.
9.5 Underutilized Access Channel
Grantee and the County agree that it is their mutual goal to fully and efficiently use the Ch el
Capacity of the Cable System, which may include allowing the Grantee to use underutilized time on
the Access Channel. ff the Grantee believes that the Access Channel has significantly underutil' ed
time, Grantee may file a request with the County to use that time. The County shall rend a
decision regarding the matter within sixty (60) days of receiving the request. Should the Co ty
find that the Access Channel or portion of the Access Channel may be used by the Grantee, en
Grantee may begin using such time ninety (90) days after receipt of the decision. The Grant 's
request shall not be unreasonably denied. It is acknowledged and agreed that the Access Ch el
shall not, during the term of this Agreement, revert back to Grantee and it shall be in the Coup s
reasonable discretion to allow any usage of the Access Channel by Grantee so that the Co ty
maintains flexibility in terms of scheduling programming.
9.6 Access Channel On Basic Service
The Access Channel provided to Subscribers under this Agreement shall be included by
without limitation, as a part of Basic Service.
9.7 Access Channel Assignments
Grantee will use reasonable efforts to minimize the movement of Access Channel assignments.
9.8 Relocation of Access Channel
Grantee shall provide the County with a minimum of ninety (90) days notice prior to the time
Access Channel designation is changed
9.9 Technical Quality
The Grantee shall maintain the Access Channel, and return lines at least the same level of techt
quality and reliability required by this Agreement and all other applicable laws, rules
regulations for other Channels. The Grantee shall provide routine maintenance and shall repair
replace all transmission equipment as necessary to carry the signal as received from the Coy
PEG Access facility to Subscribers without degradation of that signal.
9.10 Change In Technology
In the event Grantee makes any change in the Cable System and related equipment and facilities or
in Grantee's signal delivery technology, which affects the signal quality or transmission of Acc ss
services or programming, Grantee shall at its own expense take necessary technical steps or pro de
necessary technical assistance, including the acquisition of all necessary equipment and training of
Access personnel, to ensure that the capabilities of Access services aze not diminished or advers ly
25
affected by such change so that live and taped programming can be cablecast with as good or be
signal quality than existed prior to such change. For example, this provision shall apply if
Cable System is converted from an analog to a digital format, such that the Access Channel n
also be converted to a digital format in order to be received by Subscribers.
9.11 Information about Access Programming to Subscribers
Upon written request by the County, Grantee shall include a reasonable level of information
Access programming in the installation packet provided to Subscribers. The County shall
the materials, for insertion in the packet, in a format consistent with Grantee's requirements.
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1 Right to Construct
Subject to Generally Applicable laws, regulations, rules, resolutions and ordinances of the Co ty
and the provisions of this Agreement, Grantee may perform all construction in the Rights-of- ay
for any facility needed for the maintenance, upgrade or extension of Grantee's Cable System.
10.2 Right-of-Way Meetings
Subject to receiving reasonable advance notice, Grantee shall make reasonable effort to regu
attend and participate in meetings of the County of which the Grantee is made awaze, rega~
Right-of--Way issues that may impact the Cable System. Whenever it is possible and reason
practicable to joint trench or share bores or cuts, Grantee shall work with other providers, licen
permitees, and agreement holders so as to reduce so faz as possible the number of Right-of-
cuts within the County.
10.3 General Standard
All work authorized and required hereunder shall be done in a safe, thorough and workmanl' e
manner. All installations of equipment shall be permanent in nature, durable and installed in
accordance with good engineering practices.
(A) Grantee's System shall be constructed and maintained in such manner as not to
interfere with sewers, water pipes or any other property of Grantor, or with any other pipes, win s,
conduits, pedestals, structures or other facilities that may have been laid in Rights-of--Way by, or
under, Grantor's authority.
(B) Grantee shall provide and use any equipment and appliances necessary to coy
and carry Grantee's signals so as to prevent injury to Grantor's property or property belonging to
Person. Grantee, at its own expense, shall repair, renew, change and improve its facilities to 1
them in good repair and safe and presentable condition.
(C) The Grantee's transmission and distribution system, wires and appurtenances sh
be located, erected and maintained so as not to endanger or interfere with the lives of Persons, or
unnecessarily hinder or obstruct the free use of Rights-of--Way, alleys, bridges or other pub
property.
26
(D) Grantee will maintain membership in good standing with the Utility Coordn
Council One Call Center, or other similaz or successor organization designated to coos
underground equipment locations and installations. Grantee shall abide by the Colorado
"Underground Utilities" statutes and will further comply with and adhere to local proce
customs and practices relating to the one call locator service program.
10.4 Permits Required for Construction
Prior to doing any work in the Right-of Way or other public property, Grantee shall apply for, d
obtain, appropriate permits from the County. As part of the permitting process, the County ay
impose such Generally Applicable conditions and regulations as aze necessary for the purpose of
protecting any structures in such Rights- of-Way, proper restoration of such Rights-of--Way d
structures, the protection of the public, and the continuity of pedestrian or vehiculaz traffic. G ee
shall pay all Generally Applicable fees for the requisite County permits received by Grantee.
10.5 Emergency Permits
In the event that emergency repairs aze necessary, Grantee shall immediately notify the Coun of
the need for such repairs. Grantee may initiate such emergency repairs and shall apply or
appropriate permits within 48 hours after discovery of the emergency.
10.6 Compliance with Applicable Codes
(A) County Construction Codes. Grantee shall comply with all Generally Applic
County construction codes, including, without limitation, the Uniform Building Code and ~
building codes, the Uniform Fire Code, the Uniform Mechanical Code, and zoning codes
regulations.
(B) Tower Specifications. Antenna supporting structures (towers) shall be designed or
the proper loading as specified by the Electronics Industries Association (EIA), as th se
specifications maybe amended from time to time. Antenna supporting structures (towers) shall be
painted, lighted, erected and maintained in accordance with all applicable rules and regulations of
the Federal Aviation Administration and all other applicable federal, State, and local codes or
regulations.
(C) Safety Codes. Grantee shall comply with all applicable federal, State and Co ty
safety requirements, rules, regulations, laws and practices, and employ all necessary devices as
required by applicable law during construction, operation and repair of its Cable System. By ay
of illustration and not limitation, Grantee shall comply with the National Electric Code, Natio al
Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standazds.
10.7 GIS Mapping
Grantee shall comply with any future Generally Applicable ordinances, rules and regulations of
County regazding geographic information mapping systems for users of the Rights-of--Way.
10.8 Minimal Interference
Work in the Right-of--Way, on other public property, neaz public property, or on or near p~
property shall be done in accordance with the County Regulation For Construction in the P
Way as maybe amended from time to time and in a manner that causes the least interference
27
•
the rights and reasonable convenience of property owners and residents. Grantee's Cable Syst
shall be constructed and maintained in such manner as not to interfere with sewers, water pipes,
any other property of the County, or with any other pipes, wires, conduits, pedestals, structures,
other facilities that may have been laid in the Rights-of--Way by, or under, the County's author
The Grantee's Cable System shall be located, erected and maintained so as not to endanger
interfere with the lives of Persons, or to unreasonably interfere with new improvements the Cou
may deem proper to make or to unnecessarily hinder or obstruct the free use of the Rights-of--Vf
or other public property, and shall not interfere with the travel and use of public places by the put
during the construction, repair, operation or removal thereof, and shall not obstruct or impE
traffic. In the event of such unreasonable interference, the County may require the removal
relocation of Grantee's lines, cables, equipment and other appurtenances from the property
question at Grantee's expense.
or
or
ty.
or
qty
'ay
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de
or
in
10.9 Prevent Injury/Safety
Grantee shall provide and use any equipment and facilities necessary to control and carry Grant e's
signals so as to prevent injury to the County's property or property belonging to any Pers n.
Grantee, at its own expense, shall repair, renew, change and improve its facilities to keep the in
good repair, and safe and presentable condition. All excavations made by Grantee in the Rights- f-
Way shall be properly safeguarded for the prevention of accidents by the placement of adeq to
barriers, fences or boarding, the bounds of which, during periods of dusk and darkness, shall be
clearly designated by warning lights.
10.10 Hazardous Substances
(A) Grantee shall comply with any and all applicable laws, statutes, regulations
orders concerning hazardous substances relating to Grantee's Cable System in the Rights-of--Way
(B) Upon reasonable notice to Grantee, the County may inspect Grantee's facilities in
the Rights-of--Way to determine if any release of hazardous substances has occurred, or may oc ,
from or related to Grantee's Cable System. In removing or modifying Grantee's facilities as
provided in this Agreement, Grantee shall also remove all residues of hazardous substances rela ed
thereto.
(C) Grantee agrees to indemnify the County against any claims, costs, and expenses, of
any kind, whether direct or indirect, incurred by the County arising out of a release of hazard us
substances caused by Grantee's Cable System and/or any work relating to the Cable System.
10.11 Locates
Prior to doing any work in the Right-of--Way, Grantee shall give appropriate notices to the
and to the notification association established in C.R.S. Section 9-1.5-105, as such maybe a
from time to time.
Within forty-eight (48) hours after any County bureau or agreement holders, licensee or
pemuttee notifies Grantee of a proposed Right-of--Way excavation, Grantee shall, at Gran e's
expense:
28
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(A) Mark on the surface all of its located underground facilities within the area of
proposed excavation;
(B) Notify the excavator of any unlocated underground facilities in the area of
proposed excavation; or
(C) Notify the excavator that Grantee does not have any underground facilities in
vicinity of the proposed excavation.
10.12 Notice to Private Property Owners
Except in the case of emergency involving public safety or service interruptions to a large m
of Subscribers, Grantee shall give reasonable advance notice to private property owners or
tenants of work on or adjacent to private property.
10.13 Underground Construction and Use of Poles
(A) When required by Generally Applicable ordinances, resolutions, regulations or n
of the County or applicable State or federal law, Grantee's Cable System shall be pla
underground at Grantee's expense subject to applicable law unless funding is generally available
such relocation to all users of the Rights-of--Way. Placing facilities underground does not precl
the use ofground-mounted appurtenances.
(B) Where electric, telephone, and other above-ground utilities are ins ed
underground at the time of Cable System construction or upgrade, or when all such wiring is
subsequently placed underground, all Cable System lines shall also be placed underground 'th
other wireline service at no expense to the County or Subscribers unless funding is gene lly
available for such relocation to all users of the Rights-of--Way. Related Cable System equipm t,
such as pedestals, must be placed in accordance with the County's applicable code requirements d
rules. In areas where either electric or telephone utility wiring is aerial, the Grantee may ins 11
aerial cable, except when a property owner or resident requests underground installation and agr es
to bear the additional cost in excess of aerial installation. Nothing contained in this Section s all
require Grantee to construct, operate, and maintain underground any ground-moon ed
appurtenances.
(C) The Grantee shall utilize existing poles and conduit wherever possible.
(D) In the event Grantee cannot obtain the necessary poles and related facilities pu
to a pole attachment agreement, and only in such event, then it shall be lawful for Grantee to
all needed excavations in the Rights-of--Way for the purpose of placing, erecting, 1.
maintaining, repairing, and removing poles, supports for wires and conductors, and any
facility needed for the maintenance or extension of Grantee's Cable System. All poles of G
shall be located as reasonably designated by the proper County authorities.
(E) This Agreement does not grant, give or convey to the Grantee the right or privilE
to install its facilities in any manner on specific utility poles or equipment of the County or
other Person. Copies of agreements for the use of poles, conduits or other utility facilities must
provided upon written request from the County.
29
•
(F) The Grantee and the County recognize that situations may occur in the future wh
the County may desire to place its own cable or conduit for Fiber Optic cable in trenches or bo
opened by the Grantee. The Grantee agrees to cooperate with the County in any construction by
Grantee that involves trenching or boring, provided that the County has first provided reasona
notice to the Grantee in some manner that it is interested in sharing the trenches or bores in the a
where the Grantee's construction is occurring. The Grantee shall allow the County to lay its cat
conduit and Fiber Optic cable in the Grantee's trenches and bores, provided the County shares in
cost of the trenching and boring on the same terms and conditions as the Grantee at that time sha
the total cost of trenches and bores. The County shall be responsible for maintaining its respect
cable, conduit and Fiber Optic cable buried in the Grantee's trenches and bores under t
paragraph.
10.14 Undergrounding of Multiple Dwelling Unit Drops
In cases of single site Multiple Dwelling Units, Grantee shall minimize the number of indi
aerial drop cables by installing multiple drop cables underground between the pole and M
Dwelling Unit where determined to be technologically feasible in agreement with the owners
owner's association of the Multiple Dwelling Units.
10.15 Burial Standards
(A) Deaths. Unless otherwise required by law or the National Electric Code, Gran ee
shall comply with the following burial depth standards. In no event shall Grantee be required to
bury its cable deeper than electric or gas facilities in the same portion of the Right-of--Way:
Underground cable drops from the curb shall be buried at a minimum depth of
(3) inches.
Feeder lines shall be buried at a minimum depth of eighteen (18) inches.
Trunk lines shall be buried at a minimum depth of thirty-six (36) inches.
Fiber Optic cable shall be buried at a minimum depth of thirty-six (36) inches.
(B) Timeliness. Cable drops installed by Grantee to residences shall be b ed
according to these standards within one calendar week of initial installation, or at a time mu ly
agreed upon between the Grantee and the Subscriber. When freezing surface conditions or o er
weather conditions prevent Grantee from achieving such timetable, Grantee shall apprise e
Subscriber of the circumstances and the revised schedule for burial, and shall provide he
Subscriber with Grantee's telephone number and instructions as to how and when to call Grantee to
request burial of the line if the revised schedule is not met.
10.16 Electrical Bonding
Grantee shall ensure that all cable drops are properly bonded to the electrical power ground at
home, consistent with applicable code requirements. All non-conforming or non-performing ca
drops shall be replaced by Grantee as necessary.
30
10.17 Prewiring
Any ordinance or resolution of the County which requires prewiring of subdivisions or
developments for electrical and telephone service shall be construed to include wiring for
Systems.
10.18 Repair and Restoration of Property
(A) The Grantee shall protect public and private property from damage. If dam ge
occurs, the Grantee shall promptly notify the property owner within twenty-four (24) hours in
writing.
(B) Whenever Grantee disturbs or damages any Right-of--Way, other public prope or
any private property, Grantee shall promptly restore the Right-of--Way or property to at least its
prior condition, normal wear and tear excepted, at its own expense.
(C) Ri is-of--Way and Other Public Property. Grantee shall warrant any restorat
work performed by or for Grantee in the Right-of--Way or on other public property for two
years, unless a longer period is required by any Generally Applicable ordinance or resolution of
County. If restoration is not satisfactorily performed by the Grantee within a reasonable time,
County may, after prior notice to the Grantee, or without notice where the disturbance or dame
may create a risk to public health or safety, cause the repairs to be made and recover the reasons
cost of those repairs from the Grantee. Within thirty (30) days of receipt of an itemized list of th
costs, including the costs of labor, materials and equipment, the Grantee shall pay the County.
(D) Private Property. Upon completion of the work that caused any disturbance or
damage, Grantee shall promptly commence restoration of private property, and will use best eff its
to complete the restoration within seventy-two (72) hours, considering the nature of the work t
must be performed.
(E) Grantee shall at all times conform to the repair and restoration standards as set
for construction in the County regulations within the Rights-of--Way as amended from time to t
10.19 Common Users
(A) For the purposes of this subsection:
(1) "Attachment" means any wire, optical fiber or other cable, and any r
device, apparatus or auxiliary equipment, for the purpose of voice, video or data transmission.
(2) "Conduit" or "Conduit Facility" means any structure, or section tb
containing one or more Ducts, conduits, manholes, handhole or other such facilities in Gra
Cable System.
(3) "Duct" means a single enclosed raceway for cables, Fiber Optics or
wires.
(4) "Licensee" means any Person licensed or otherwise permitted by the
to use the Rights-of--Way.
31
(5) "Surplus Ducts or Conduits" aze Conduit Facilities other than those occup ed
by Grantee or any prior Licensee, or unoccupied Ducts held by Grantee as emergency use spazes or
other unoccupied Ducts that Grantee reasonably expects to use within two (2) years from the dat of
a request for use.
(B) Grantee acknowledges that the Rights-of--Way have a finite capacity for con g
Conduits. Therefore, Grantee agrees that whenever the County determines it is impracticable to
permit construction of an underground Conduit system by any other Person which may at the e
have authority to construct or maintain Conduits or Ducts in the Rights-of--Way, but exclu ' g
Persons providing Cable Services in competition with Grantee, the County may require Grantee to
afford to such Person the right to use Grantee's Surplus Ducts or Conduits in common with Grant ,
pursuant to the terms and conditions of an agreement for use of Surplus Ducts or Conduits ente ed
into by Grantee and the Licensee. Nothing herein shall require Grantee to enter into an agreem nt
with such Person if, in Grantee's reasonable determination, such an agreement could compro se
the integrity of the Cable System.
(C) A Licensee occupying part of a Duct shall be deemed to occupy the entire Duct.
(D) Grantee shall give a Licensee a minimum of one hundred twenty (120) days
of its need to occupy a licensed Conduit and shall propose that the Licensee take the first f
action as follows:
(1) Pay revised Conduit rent designed to recover the cost of retrofitting
Conduit with multiplexing, Fiber Optics or other space-saving technology sufficient to r
Grantee's space needs;
(2) Pay revised Conduit rent based on the cost of new Conduit constructed
meet Grantee's space needs;
(3) Vacate the needed Ducts or Conduit; or
(4) Construct and maintain sufficient new Conduit to meet Grantee's
needs.
(E) When two or more Licensees occupy a section of Conduit Facility, the last Licen
to occupy the Conduit Facility shall be the first to vacate or construct new Conduit. When Conc
rent is revised because of retrofitting, space-saving technology or construction of new Conduit,
Licensees shall beaz the increased cost.
(F) All Attachments shall meet local, State, and federal clearance and other
requirements, be adequately grounded and anchored, and meet the provisions of contracts e~
between Grantee and the Licensee. Grantee may, at its option, correct any attachment defic
and chazge the Licensee for its costs. Each Licensee shall pay Grantee. for any fines, fees, d~
or other costs the Licensee's attachments cause Grantee to incur.
32
(G) In order to enforce the provisions of this subsection with respect to Grantee,
County must demonstrate that it has required that all similazly situated users of the Rights-of--`
to comply with the provisions of this subsection.
10.20 Acquisition of Facilities
Upon Grantee's acquisition of facilities in any County Right-of--Way, or upon the addition to e
County of any azea in which Grantee owns or operates any facility, Grantee shall, at the Coun s
request, submit to the County a statement describing all facilities involved, whether authorized y
agreement, permit, license or other prior right, and specifying the location of all such facilities to
the extent Grantee has possession of such information. Such facilities shall immediately be subj ct
to the terms of this Agreement.
10.21 Discontinuing Use/Abandonment of Cable System Facilities
Whenever Grantee intends to discontinue using any facility within the Rights-of--Way, Grantee sh 11
submit for the County a complete description of the facility and the date on which Grantee irate ds
to discontinue using the facility. Grantee may remove the facility or request that the County pe it
it to remain in place. Notwithstanding Grantee's request that any such facility remain in place, e
County may require Grantee to remove the facility from the Right-of--Way or modify the facility to
protect the public health, welfaze, safety, and convenience, or otherwise serve the public inter t.
The County may require Grantee to perform a reasonable combination of modification and remo al
of the facility. Grantee shall complete such removal or modification in accordance with a sched le
set by the County. Until such time as Grantee removes or modifies the facility as reasona ly
directed by the County, or until the rights to and responsibility for the facility aze accepted y
another Person having authority to use, construct and/or maintain such facility, Grantee shall re in
all liability for such facility and be responsible for all necessary repairs and relocations of e
facility, as well as maintenance of the Right-of--Way, in the same manner and degree as if e
facility were in active use. If Grantee abandons its facilities, the County may choose to use su h
facilities without change for any purpose whatsoever including, but not limited to, Access purpos s.
If the County chooses to utilize any such abandoned facilities, Grantee's liability for those facili es
shall cease.
10.22 Movement of Cable System Facilities For County Purposes
The County shall have the right to require Grantee to relocate, remove, replace, modify
disconnect Grantee's facilities and equipment located in the Rights-of--Way or on any other prope
of the County in the event of an emergency or when reasonable public convenience requires su
change (for example, without limitation, by reason of traffic conditions, Right-of--Way widening
altering, public safety, Right-of--Way vacation, Right-of-Way construction, change or establishm~
of Right-of--Way grade, installation of sewers, drains, gas or water pipes, or any other types
structures or improvements by the County for public purposes). Unless otherwise provided by st
or federal law such work shall be performed at the Grantee's expense. Except during an emergen~
the County shall provide reasonable notice to Grantee, not to be less than five (5) business days, a
allow Grantee with the opportunity to perform such action. In the event of any capital improvem~
project exceeding $200,000 in expenditures by the County that requires the removal, replaceme
modification or disconnection of Grantee's facilities or equipment, the County shall provide at le
sixty (60) days' written notice to Grantee. Following notice by the County, Grantee shall reloca
remove, replace, modify or disconnect any of its facilities or equipment within any Right-of-W.
33
or on any other property of the County. If the County requires Grantee to relocate its fac.
located within the Rights-of--Way, the County shall make a reasonable effort to provide Gr
with an alternate location within the Rights-of--Way. If funds are generally made available to
of the Rights-of--Way for such relocation, Grantee shall be entitled to its pro rata share of
funds.
If the Grantee fails to complete this work within the time prescribed and to the Count}~s reason.
satisfaction, upon written notice to the Grantee and a reasonable opportunity to cure, the Coi
may cause such work to be done and bill the reasonable cost of the work to the Grantee, incluc
all reasonable costs and expenses incurred by the County due to Grantee's delay. In such event,
County shall not be liable for any damage to any portion of Grantee's Cable System unless
County acted in a negligent manner. Within thirty (30) days of receipt of an itemized list of tb
costs, the Grantee shall pay the County. Nothing herein shall be construed to waive rights, if
Grantee may have for reimbursement of costs related to underground construction.
10.23 Movement of Cable System Facilities for Other Agreement Holders
If any removal, replacement, modification or disconnection of the Cable System is required to
accommodate the construction, operation or repair of the facilities or equipment of another Co ty
agreement holder, Grantee shall, after at least thirty (30) days' advance written notice, take actin to
effect the necessary changes requested by the responsible entity. Grantee may require that the co is
associated with the removal or relocation be paid by the benefited party.
10.24 Temporary Changes for Other Permitees
At the request of any Person holding a valid pemvt and upon reasonable advance notice, Gras
shall temporarily raise, lower or remove its wires as necessary to permit the moving of a build
vehicle, equipment or other item. The expense of such temporary changes must be paid by
permit holder, and Grantee may require a reasonable deposit of the estimated payment in advanc
10.25 Reservation of County Use of Right-of-Way
Nothing in this Agreement shall prevent the County or public utilities owned, maintained
operated by public entities other than the County from constructing sewers; grading, pavi
repairing or altering any Right-of--Way; laying down, repairing or removing water mains;
constructing or establishing any other public work or improvement. All such work shall be do
insofar as practicable, so as not to obstruct, injure or prevent the use and operation of Grant
Cable System.
10.26 Rights-of--Way Vacation
If any Rights-of--Way or portion thereof used by Grantee is vacated by Grantor during the term
this Agreement, unless Grantor specifically reserves to Grantee the right to continue the use
vacated Rights-of--Way, Grantee shall, within thirty (30) days written notice from Grantor
Grantee and subject to the provisions of applicable law without expense to Grantor, remove
facilities (unless utilities have been permitted to leave their facilities in place) from such Rights-~
Way, and restore, repair or reconstruct the Rights-of--Way where such removal has occurred. In 1
event of failure, neglect or refusal of Grantee, after thirty (30) days' notice by Grantor, to resto
repair or reconstruct such Rights-of--Way, Grantor may do such work or cause it to be done, and 1
34
C~
C~
reasonable cost thereof, as found and declared by Grantor, shall be paid by Grantee within
(30) days of receipt of an invoice and documentation.
10.27 Tree Trimming
Grantee may prune or cause to be pruned, using proper pruning practices, any tree in the Coun s
Rights-of--Way which interferes with Grantee's Cable System. Grantee shall comply with y
general ordinance or regulations of the County regarding tree trimming. Except in emergenc es,
Grantee may not prune trees at a point below thirty (30) feet above sidewalk grade until one 1)
week written notice has been given to the owner or occupant of the premises abutting the Right- f-
Way in or over which the tree is growing. The owner or occupant of the abutting premises ay
prune such tree at his or her own expense during this one (1) week period. If the owner or occup t
fails to do so, Grantee may prune such tree at its own expense. For purposes of this subsecti n,
emergencies exist when it is necessary to prune to protect the public or Grantee's facilities fr m
imminent danger only.
10.28 Inspection of Construction and Facilities
The County may inspect any of Grantee's facilities, equipment or construction at any time upo at
least twenty-four (24) hours notice, or, in case of emergency as determined by the County, u on
demand without prior notice. If an unsafe condition is found to exist, the County, in addition to
taking any other action permitted under applicable law, may order Grantee, in writing, to make e
necessary repairs and alterations specified therein forthwith to correct the unsafe condition b a
time the County establishes. The County has the right to correct, inspect, administer and repair e
unsafe condition if Grantee fails to do so, and to reasonably charge Grantee therefor.
10.29 Codes
Grantee shall strictly adhere to all building and zoning codes currently or hereafter in efi
Grantee shall arrange its lines, cables and other appurtenances, on public property, in such a mar
as to cause no unreasonable interference with the use of said public property by any Person. In
event of such interference and consistent with the other provisions of this Agreement, Grantor i
require the removal or relocation of Grantee's lines, cables and other appurtenances from
properly in question.
10.30 Stop Work
(A) On notice from the County that any work is being perfonmed contrary to
provisions of this Agreement, or in an unsafe or dangerous manner as reasonably determined by
County, or in violation of the terms of any Generally Applicable permit, laws, regulatio
ordinances, or standards, the work may immediately be stopped by the County.
(B) The stop work order shall:
(1) Be in writing;
(2) Be given to the Person doing the work, or posted on the work site;
(3) Be sent to Grantee by overnight delivery or by facsimile at the address
given herein;
35
(4) Indicate the nature of the alleged violation or unsafe condition; and
(5) Establish conditions under which work maybe resumed.
10.31 Standards
(A) All work authorized and required hereunder shall be done in a safe, thorough a
workmanlike manner. The Grantee must comply with all federal, State and local saf
requirements, rules, regulations, laws and practices, and employ all necessary devices as required
applicable law during construction, operation and repair of its System. By way of illustration a
not limitation, the Grantee must comply with the National Electric Code, National Electrical Saf
Code and Occupational Safety and Health Administration (OSHA) Stnadazds.
(B) Grantee shall ensure that all cable drops aze properly bonded and grounded at
home, consistent with applicable code requirements. All non-conforming or non-performing a
drops shall be replaced by Grantee as necessary.
(C) All installations of equipment shall be permanent in nature, durable and installed in
accordance with good engineering practices and of sufficient height to comply with all fede 1,
State and local regulations, ordinances and laws so as not to interfere in any manner with the ri t
of the public or individual property owner, and shall not interfere with the travel and use of pub is
places by the public during the construction, repair, operation or removal thereof, and shall of
obstruct or impede traffic.
(D) In the maintenance and operation of its System in Rights-of--Way and other pub is
places, and in the course of any new construction or addition to its facilities, the Grantee sh 11
proceed so as to cause the least possible inconvenience to the general public; any opening or
obstruction in the Rights-of--Way or other public places made by the Grantee in the course of 'ts
operations shall be guarded and protected at all times by the placement of adequate barriers, fen es
or boazding, the bounds of which, during periods of dusk and dazkness, shall be cleazly marked.
10.32 Work of Contractors and Subcontractors
Work by contractors and subcontractors is subject to the same restrictions, limitations a
conditions as if the work were performed by Grantee. Grantee shall be responsible for all we
performed by its contractors and subcontractors and others performing work on its behalf as if ~
work were performed by it, and shall ensure that all such work is performed in compliance with t
Agreement and other applicable law, and shall be jointly and severally liable for all damages a
convecting all damage caused by them. It is Grantee's responsibility to ensure that contracts
subcontractors or other Persons performing work on Grantee's behalf aze familiaz with 1
requirements of this Agreement and other applicable laws governing the work performed by them
36
~~
SECTION 11. CABLE SYSTEM CONFIGURATION, TECffivICAL STANDARDS
TESTING
11.1 Subscriber Network
(A) Grantee's Cable System is two-way capable and provides bandwidth to at least
MHz. The Cable System is capable of delivering one hundred ten (110) Channels of analog an~
digital programming services to Subscribers, provided that the Grantee reserves the right to use
bandwidth in the future for other uses based on market factors.
(B) Grantee shall retransmit all closed captioning programming received by the Cal
System so long as the closed caption signal is provided consistent with FCC standards. All to
signals received in stereo or with secondary audio tracks (broadcast and Access) shall
retransmitted in those same formats.
(C) All construction shall be subject to the County's permitting process.
(D) Grantee shall take prompt corrective action if it finds that any facilities or
on the Cable System are not operating in accordance with FCC technical standards.
(E) Grantee's construction decisions shall be based solely upon legitimate business
engineering decisions and shall not take into consideration the income level of any partic
community within the Agreement Area.
11.2 County Needs
The County shall not be restricted from holding any hearing at any time to review whether or
the Cable System and the Cable Services offered by the Grantee are meeting demonstr
community needs. The parties recognize that, as of the Effective Date, the County is not permi
to require the provision of specific video programming pursuant to this subsection but is permi
to enforce the provision of broad categories of programming as set forth in Section 8.
11.3 Standby Power
Grantee shall maintain standby power system supplies, rated for at least two (2) hours
throughout the trunk and distribution networks.
11.4 Emergency Alert Capability
Grantee shall provide the County an operating Emergency Alert System ("EAS") in accord
with and as required by the provisions of FCC Regulation Part II, and as such provision may f
time to time be amended. Grantee shall test the EAS as required by the FCC. Upon request,
County shall be pernutted to participate in and/or witness the EAS testing. If the test indicates
the EAS is not performing consistent with FCC requirements, Grantee shall make any neces~
adjustment to the EAS, and the EAS shall be retested.
be
37
11.5 Technical Performance
The technical performance of the Cable System shall meet or exceed all applicable
standazds, as they may be amended from time to time, regazdless of the transmission tee
utilized. The County shall have the full authority permitted by applicable law to
compliance with these technical standazds.
11.6 Cable System Performance Testing
(A) Grantee shall, at Grantee's expense, perform the following tests on its Cable
(1) All tests required by the FCC;
(2) All other tests reasonably necessary to determine compliance with
standazds adopted by the FCC at anytime during the term of this Agreement.
(B) At present, required tests include:
(1) Cumulative leakage index testing of any new construction;
(2) Semi-annual compliance and proof of performance tests in
with generally accepted industry guidelines;
(3) Tests in response to Subscriber complaints;
(4) Periodic monitoring tests, at intervals not to exceed six (6) months,
Subscriber (field) test points, the Headend, and the condition of standby power supplies; and
(5) Cumulative leakage index tests, at least annually, designed to ensure that
hundred percent (100%) of Grantee's Cable System has been ground or air tested for signal leaf
in accordance with FCC standards.
(C) Grantee shall maintain written records of all results of its Cable System te:
performed by or for Grantee, in accordance with applicable law. Copies of such test results will
provided to the County upon written request.
(D) If the FCC no longer requires proof of performance tests for Grantee's Cable Syst
during the term of this Agreement, Grantee agrees that it shall continue to conduct proof
performance tests on the Cable System in accordance with the standards that were in place on
Effective Date, or any Generally Applicable standards later adopted, at least once a yeaz, z
provide written results of such tests to the County upon written request.
(E) If County notifies Grantee that it wishes to have a reprzsentative present during
semi-annual testing of the Cable System, Grantee shall cooperate in scheduling its testing so tJ
the representative can be present. Notwithstanding the above, all technical performance tests n
be witnessed by representatives of the County.
of
38
~ ~
(F) Grantee shall be required to promptly take such corrective measures as aze s
to correct any performance deficiencies fully and to prevent their recurrence as faz as
Grantee's failure to correct deficiencies identified through this testing process shall be a
violation of this Agreement. Sites shall be re-tested following correction.
11.7 Additional Tests
Where there exists other evidence that in the judgment of the County casts doubt upon e
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. Grantees all
reasonably cooperate with the County in performing such testing and shall prepaze the results an a
report, if requested, within thirty (30) days after testing. Such report shall include the follow g
information:
(A) The nature of the complaint or problem which precipitated the special tests;
(B) The Cable System component tested;
(C) The equipment used and procedures employed in testing;
(D) The method, if any, in which such complaint or problem was resolved; and
(E) Any other information pertinent to said tests and analysis which may be required.
SECTION 12. SERVICE AVAILABILITY AND SERVICE TO SCHOOLS AND
BUILDINGS
12.1 Universal Service
Grantee shall not azbitrarily refuse to provide Cable Services to any Person within its Agreem nt
Area. Subject to Section 12.2 all Dwelling Units, Multiple Dwelling Units and commerc al
establishments in the Agreement Area shall have the same availability of Cable Services fr m
Grantee's Cable System under non-discriminatory rates, subject to Section 4.3, and reasona le
terms and conditions. The County acknowledges that the Grantee cannot control the disseminati n
of pazticulaz Cable Services beyond the point of demazcation at a Multiple Dwelling U 't.
Notwithstanding the foregoing, Gnintee may introduce new or expanded Cable Services o a
geographically phased basis, where such services require an upgrade of the Cable System. Gran ee.
may also chazge for line extensions and non-Standazd Installations pursuant to subsection 12.2.
12.2 Service Availability
(A) In General. Except as otherwise provided herein, Grantee shall provide Cal
Service within seven (7) days of a request by any Person within the County. For purposes of tl
subsection, a request shall be deemed made on the date of signing a service agreement, receipt
funds by Grantee, receipt of a written request by Grantee or receipt by Grantee of a verified verl
request. Grantee shall provide such service:
39
(1) At anon-discriminatory installation chazge for a Standard Install;
consisting of a one hundred twenty-five (125) foot drop connecting to an inside wall for Reside
Subscribers, with additional chazges for non-standazd installations computed according to a
discriminatory methodology for such installations, adopted by Grantee;
(2) At non-discriminatory monthly rates for Residential Subscribers.
(B) Service to Multiple Dwelling Units. The Grantee shall offer the individual uni of
a Multiple Dwelling Unit all Cable Services offered to other Dwelling Units in the County ands 11
individually wire units upon request of the property owner or renter who has been given wri en
authorization by the owner; provided, however, that any such offering is conditioned upon he
Grantee having legal access to said unit and provided that the Dwelling Unit can be accessed or
wiring without the need to pass through any other Dwelling Unit. The County acknowledges at
the Grantee cannot control the dissemination of particulaz Cable Services beyond the point of
demarcation at a Multiple Dwelling Unit.
(C) Whenever the Grantee receives a request for Cable Service from a customer ' a
contiguous unserved azea where there aze at least forty five (45) Dwelling Units within 5280 ca le-
bearing strand feet (one cable mile) from the portion of the Grantee's trunk or distribution ca le
which is to be extended, it shall extend its Cable System to such customer at no cost to s id
customer for the Cable System extension, other than the published standard installation f es
chazged to all customers.
(D) Customer Charges for Extensions of Service. No customer shall be refused serv'ce
azbitrarily. However, for unusual circumstances, such as a customer's request to locate the ca le
drop underground, the existence of more than one hundred twenty-five (125) feet of distance fr m
distribution cable to connection of service to customers, or a request from a customer in an ea
which does not meet the density requirement of subsection (C) above, service may be m de
available on the basis of a capital contribution in aid of construction, including cost of mate al,
labor and easements. For the purpose of determining the amount of capital contribution in aid of
construction to be borne by the Grantee and customers in the area in which service may be
expanded, the Grantee will contribute an amount equal to the construction and other costs per m le,
multiplied by a fraction whose numerator equals the actual number of residences per 5280 ca le-
bearing strand feet of its trunk or distribution cable and whose denominator equals forty five (5).
Customers who request service hereunder will beaz the remainder of the construction and o er
costs on a pro rata basis. The Grantee may require that the payment of the capital contribution in
aid of construction borne by such potential customers be paid in advance. Grantee shall pe 't
Subscribers to make any lawful in-residence connections the Subscriber chooses without additio al
chazge nor penalty to the Subscriber therefor.
SECTION 13. AGREEMENT VIOLATIONS
13.1 Procedure for Remedying Agreement Violations
(A) If the County believes that Grantee has failed to perform any obligation under
Agreement or has failed to perform in a timely manner, the County shall notify Grantee in wri~
40
stating with reasonable specificity the nature of the alleged default. Grantee shall have thirty
days from the receipt of such notice to:
(1) respond to the County, contesting the County's assertion that a default
occurred, and requesting a meeting in accordance with subsection (B), below; or
(2) cure the default; or
(3) notify the County that Grantee cannot cure the default within the thirty ( 0)
days, because of the nature of the default. In the event the default cannot be cured within thirty ( 0)
days, Grantee shall promptly take all reasonable steps to cure the default and notify the Coun in
writing and in detail as to the exact steps that will be taken and the projected completion date. In
such case, the County may set a meeting in accordance with subsection (B) below to determ e
whether additional rime beyond the thirty (30) days specified above is indeed needed, and whe er
Grantee's proposed completion schedule and steps are reasonable.
(B) If Grantee does not cure the alleged default within the cure period stated above, or
by the projected completion date under subsection (A)(3), or denies the default and request a
meeting in accordance with (A)(1), or the County orders a meeting in accordance with subsec on
(A)(3), the County shall set a meeting to investigate said issues or the existence of the alle ed
default. The County shall notify Grantee of the meeting in writing and such meeting shall e
place no less than thirty (30) days after Grantee's receipt of notice of the meeting. At the mee ' g,
Grantee shall be provided an opportunity to be heard and to present evidence in its defense.
(C) If, after the meeting, the County determines that a default exists, the County shall at
a public meeting upon at least ten days notice where Grantee shall have an opportunity to be he d,
order Grantee to correct or remedy the default or breach within fifteen (15) days or within s ch
other reasonable time frame as the County shall determine. )n the event Grantee does not c e
within such time to the County's reasonable satisfaction, the County may order Grantee to con:ec or
remedy the violation within a reasonable timeframe as Grantor shall determine and if Grantee f ils
to do so within timeframes provided herein, Grantor may (a) pursue any legal or equitable rem dy
available under this Agreement or any applicable law including but not limited to commencing an
action at law for monetary damages; or (b) in the case of material breach, seek to revoke e
Agreement.
(D) The determination as to whether a violation of this Agreement has occurred shall be
within the discretion of the County, provided that any such final determination may be subject to
appeal to a court of competent jurisdiction under applicable law.
13.2 Revocation
(A) In addition to revocation in accordance with other provisions of this Agreement,
County may revoke this Agreement and rescind all rights and privileges associated with
Agreement in the following circumstances, each of which represents a material breach of
Agreement:
(1) If Grantee fails to perform any material obligation under this Agreement.
41
(2) ff Grantee willfully fails for more than forty-eight (48) consecutive
provide continuous and uninterrupted Cable Service;
to
(3) If Grantee attempts to evade any material provision of this Agreement o~ to
practice any fraud or deceit upon the County or Subscribers; or
(4) If Grantee becomes insolvent, or if there is an assignment for the
Grantee's creditors;
(5) If Grantee makes a material misrepresentation of fact in the application
or negotiation of this Agreement.
(6) Grantee fails to maintain the required customer service location as
in this Agreement;
(7) Grantee abandons the System, or terminates the System's operations;
(B) Following the procedures set forth in this Agreement, and prior to forfeiture
termination of the Agreement, the County shall give written notice to the Grantee of its intent
revoke the Agreement. The notice shall set forth the exact nature of the noncompliance.
(C) Any proceeding under the paragraph above shall be conducted by the Coui
Commissioners or its designee and open to the public. Grantee shall be afforded at least sixty (E
days prior written notice of such proceeding.
of
or
to
(1) At such proceeding, Grantee shall be provided a fair opportunity for 11
participation, including the right to be represented by legal counsel, to introduce evidence, and to
call and question witnesses. A complete verbatim record and transcript shall be made of s h
proceeding and the cost shall be shared equally between the parties. The County Commissioners or
its designee shall heaz any Persons interested in the revocation, and shall allow Grantee, in
particular, an opportunity to state its position on the matter.
(2) Within ninety days after the hearing, the County Commissioners s 11
determine whether to revoke the Agreement and declare that the Agreement is revoked; or if e
breach at issue is capable of being cured by Grantee, direct Grantee ±o take appropriate remed al
action within the time and in the manner and on the terms and conditions that the Co ty
Commissioners or its designee determines are reasonable under the circumstances. If the Co ty
determines that the Agreement is to be revoked, the County shall set forth the reasons for suc a
decision and shall transmit a copy of the decision to the Grantee. Grantee shall be bound by e
County's decision to revoke the Agreement unless Grantee appeals the decision to a court of
competent jurisdiction within thirty (30) days of the date of the decision.
(3) Grantee shall be entitled to such relief as the Court may deem appropriate.
42
• •
(4) The County Commissioners may at its sole discretion take any lawful
which it deems appropriate to enforce the County's rights under the Agreement in lieu of revs
of the Agreement.
13.3 Procedures in the Event of Termination or Revocation
(A) If this Agreement expires without renewal and is not extended or is
lawfully terminated or revoked, the County may, subject to applicable law:
Allow Grantee to maintain and operate its Cable System on a month-to-month b is
or short-term extension of this Agreement for not less than six (6) months, unless a sale of e
Cable System can be closed sooner or Grantee demonstrates to the County's satisfaction tha it
needs additional time to complete the sale. Grantee's continued operation of the Cable Syst m
during the six-month period or such other period as the parties may agree, shall not be deemed to be
a waiver nor an extinguishment of any rights of either Grantee or County; or
(B) In the event that a sale has not been completed in accordance with subsection A)
above, the County may order the removal of the above-ground Cable System facilities and s ch
underground facilities from the County at Grantee's sole expense within a reasonable period of ti e
as determined by the County. In removing its plant, structures and equipment, Grantee shall re 11,
at its own expense, any excavation that is made by it and shall leave all Rights-of--Way, pu lic
places and private property in as good condition as that prevailing prior to Grantee's removal o its
equipment without affecting the electrical or telephone cable wires or attachments. e
indemnification and insurance provisions and the collateral shall remain in full force and a ct
during the period of removal.
(C) If Grantee fails to complete any removal required by this Agreement to the Cou
reasonable satisfaction, after written notice to Grantee, the County may cause the work to be
and Grantee shall reimburse the County for the reasonable costs incurred within thirty (30)
after receipt of an itemized list of the costs, or if not paid within. thirty (30) days the County
recover the costs through the collateral provided by Grantee.
(D) The County may seek legal and equitable relief to enforce the provisions of
Agreement.
13.4 Receivership and Foreclosure
(A) At the option of the County, subject to applicable law, this Agreement may
revoked one hundred twenty (120) days after the appointment of a receiver or trustee to take o
and conduct the business of Grantee whether in a receivership, reorganization, bankruptcy or of
action or proceeding, unless:
(1) The receivership or trusteeship is vacated within one hundred twenty (1
days of appointment; or
(2) The receivers or trustees have, within one hundred twenty (120) days
their election or appointment, fully complied with all the terms and provisions of this Agree
and have remedied all defaults under the Agreement. Additionally, the receivers or trustees
43
have executed an agreement duly approved by the court having jurisdiction, by which the recei~
or trustees assume and agree to be bound by each and every term, provision and limitation of
Agreement.
(B) If there is a foreclosure or other involuntary sale of the whole or any part of
plant, property and equipment of Grantee, the County may serve notice of revocation on Gray
and to the purchaser at the sale, and the rights and privileges of Grantee under this Agreement s
be revoked thirty (30) days after service of such notice, unless:
(1) The County has approved the transfer of the Agreement, in accordance
the procedures set forth in this Agreement and as provided by law; and
(2) The purchaser has covenanted and agreed with the County to assume and
bound by all of the terms and conditions of this Agreement.
13.5 No Monetary Recourse Against the County
Grantee shall not have any monetary recourse against the County or its officers, officials, boar ,
commissions and employees for any loss, costs, expenses or damages arising out of any provisi n
or requirement of this Agreement or the enforcement thereof, in accordance with the provisions of
applicable federal, State and local law. The rights of the County under this Agreement are in
addition to, and shall not be read to limit, any immunities the County may enjoy under federal, S to
or local law.
13.6 Alternative Remedies
No provision of this Agreement shall be deemed to bar the right of the County to seek or ob1
judicial relief from a violation of any provision of the Agreement or any rule, regulati
requirement or directive promulgated thereunder. Neither the existence of other remedies identii
in this Agreement nor the exercise thereof shall be deemed to bar or otherwise limit the right of
County to recover monetary damages for such violations by Grantee, or to seek and obtain judi~
enforcement of Grantee's obligations by means of specific performance, injunctive relief
mandate, or any other remedy at law or in equity.
13.7 Assessment of Monetary Damages
(A) The County may assess against Grantee monetary damages for the follow
Agreement violations, of up to $100.00 per day for failure to provide the services and paymE
required by this Agreement including but not limited to the implementation and utilization of
PEG Access Channel; for failure to comply with construction, operation or maintenance standa~
for failure to provide data, documents, reports required herein; and up to $100.00 per day for fail
to comply with Customer Service Standards. To assess any amount o~ damages, the County s]
follow the procedures for withdrawals from the security set forth in this Agreement. Such dama
shall not accrue until beginning seventy five (75) days following GranteP's receipt of notice requi
by subsection 13.1(A) or at such later date if approved by the County in its sole discretion, but r.
not be assessed until after the procedures in subsection 13.1 have been completed.
(B) The assessment of liquidated damages does not constitute a waiver by County
any other right or remedy it may have under the Agreement or applicable law, including its right
44
recover from Grantee any additional damages, losses, costs and expenses that are incurred
County by reason of the breach of this Agreement.
(C) The County and Grantee agree that the maximum length of time upon
monetary damages set forth in this Section 13.7 maybe imposed is ninety (90) days.
SECTION 14. AGREEMENT RENEWAL AND TRANSFER
14.1 Renewal
by
(A) The County and Grantee agree that any proceedings undertaken by the County at
relate to the renewal of the Agreement shall be governed by and comply with the provisions of
Section 626 of the Cable Act, unless the procedures and substantive protections set forth they in
shall be deemed to be preempted and/or superseded by the provisions of any subsequent provis'on
of federal or State law.
(B) In addition to the procedures set forth in said Section 626(a), the County agrees to
notify Grantee of the completion of its assessments regarding the identification of future cab e-
related community needs and interests, as well as the past performance of Grantee under the en
current Agreement term. Notwithstanding anything to the contrary set forth herein, Grantee d
County agree that at any time during the term of the then current Agreement, while affording e
public adequate notice and opportunity for comment, the County and Grantee may agree to
undertake and finalize negotiations regarding renewal of the then current Agreement and e
County may grant a renewal thereof. Grantee and County consider the terms set forth in 's
subsection to be consistent with the express provisions of Section 626 of the Cable Act.
14.2 Transfer of Ownership or Control
(A) The Grantee's right, title or interest in the Cable System and this Agreement sh 11
not be sold, assigned, transferred, leased or disposed of, either in whole or in part, either y
involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto, either legal or
equitable, or any right or interest or property therein pass to or vest in any Person or entity o er
than to an Affiliate controlling, controlled by or under common control with the Grantee with ut
the prior written consent of the County, which consent shall be by the County Commissione ,
acting by ordinance or resolution Such consent may not be unreasonably withheld. A change in
control of the Grantee shall be considered a transfer and shall trigger the County's rights to revi w
and require consent pursuant to this Section. No such consent shall be required for a transfer in
trust, by mortgage, by other hypothecation, or by assignment of any rights, title or interest of e
Grantee in the Agreement or Cable System in order to secure indebtedness.
(B) Within thirty (30) days of receiving a request for transfer, sale or assignment whip
shall include a completed FCC Form 394 and all required exhibits, the County shall notify t
Grantee in writing of any additional information it reasonably requires to determine the leggy
financial and technical qualifications of the transferee or assignee and any information related to t
resolution of outstanding and unresolved issues of noncompliance with the terms and conditions
this Agreement by Grantee. If the County has not taken action on the Grantee's completed requE
for transfer, sale or assignment within one hundred twenty (120) days after receiving such reque
consent by the County shall be deemed given.
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~ ~
(C) Within thirty (30) days of any transfer, assignment, sale, or change in contro if
approved or deemed granted by the County, transferee or assignee shall file with the County a c py
of the deed, agreement, lease or other written instrument evidencing such sale, transfer, assignor nt,
lease or change in ownership or control, certified and sworn to as correct by transferee or assi ee.
In the event of the assignment or transfer of the Agreement, the transferee or assignee shall file its
written acceptance agreeing to be bound by all of the provisions of this Agreement, subject to
applicable law. In the event of a change in control, in which the Grantee is not replaced by ano er
entity, the Grantee will continue to be bound by all of the provisions of the Agreement.
(D) In the event the Grantee purchases or acquires ownership or any other interest's
any other Cable System in the Agreement Area, this Agreement shall survive as to the Agreem~
Area and the Cable System which is currently the subject of this Agreement shall continue to
operated under and governed by the terms of this Agreement.
SECTION 15. SEVERABILITY
If any Section, subsection, paragraph, term or provision of this Agreement is determined to
illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, si
determination shall have no effect on the validity of any other Section, subsection, paragraph, to
or provision of this Agreement, all of which will remain in full force and effect for the term of
Agreement.
SECTION 16. NIISCELLANEOUS PROVISIONS
16.1 Preferential or Discriminatory Practices Prohibited.
In connection with the performance of work under this Agreement, the Grantee agrees not to rep
to hire, dischazge, promote or demote, or discriminate in matters of compensation against
Person otherwise qualified, solely because of race, color, religion, national origin, gender,
military status, sexual orientation, marital status, or physical or mental disability. Throughout
term of this Agreement, Grantee shall fully comply with all equal employment or r.
discrimination provisions and requirements of federal, State and local laws, and in particulaz, );
rules and regulations relating thereto.
16.2 Notices
Throughout the term of the Agreement, each party shall maintain and file with the other a
address for the service of notices by mail. All notices shall be sent postage prepaid to
respective address and such notices shall be effective upon the date of mailing. These adds
may be changed by the County or the Grantee by written notice at any time. At the Effective
of this Agreement:
m
be
be
46
•
Grantee's address shall be:
Comcast of Colorado/Florida, Inc.
Attn: General Manager
1605 Grand Avenue
Glenwood Springs, CO 81601
With a copy to:
Comcast of Colorado/Florida, Inc.
Attn: Government Affairs
8000 East Iliff Avenue
Denver, CO 80231
The County's address shall be:
Office of the County Attorney
500 Broadway
Eagle, Colorado 81631
16.3 Cumulative Rights
Subject to applicable law, all rights and remedies given to the County by this Agreement or reta
by the County herein shall be in addition to and cumulative with any and all other rights
remedies, existing or implied, now or hereafter available to the County, at law or in equity, and ;
rights and remedies shall not be exclusive, but each and every right and remedy specifically g
by this Agreement or otherwise existing or given may be exercised from time to time and as c
and in such order as maybe deemed expedient by the County and the exercise of one or more ri
or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter
other right or remedy.
16.4 Venue
The venue for any dispute related to this Agreement in Federal Court shall be in the United
District Court for the District of Colorado or for State Court shall be in the Eagle County I
Court in Eagle, Colorado.
16.5 Governing Law
This Agreement shall be governed in all respects by applicable federal law, the laws of the State
Colorado and local laws.
16.6 Descriptive Headings
The headings and titles of the Sections and subsections of this Agreement aze for
purposes only, and shall not affect the meaning or interpretation of the text herein.
16.7 Publication Costs to be Borne by Grantee
Grantee shall reimburse the County for all costs incurred in publishing this Agreement, if
publication is required.
47
• f
16.8 Binding Effect
This Agreement shall be binding upon the parties hereto, their permitted successors and assigns.
16.9 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent relationship between
parties, and neither party is authorized to, nor shall either party act towazd third Persons or
public in any manner that would indicate any such relationship with the other.
16.10 Waiver
The failure of the County at any time to require performance by the Grantee of any provision hers
shall in no way affect the right of the County hereafter to enforce the same. Nor shall the waiver
the County of any breach of any provision hereof be taken or held to be a waiver of any succeedi
breach of such provision, or as a waiver of the provision itself or any other provision.
16.11 Reasonableness of Consent or Approval
Whenever under this Agreement "reasonableness" is the standazd for the granting or denial of
consent or approval of either party hereto, such party shall be entitled to consider public
governmental policy, moral and ethical standazds as well as business and economic consideratioi
16.12 Entire Agreement
This Agreement represents the entire understanding and agreement between the parties hereto
respect to the subject matter hereof and supersedes all prior oral and written negotiations bet
the parties.
16.13 Compliance with Federal, State, and Local Laws
The Grantee shall comply with applicable federal, state and local laws, rules and regulations
existing or hereafter adopted consistent with the other provisions of this Agreement.
16.14 Force Majeure
The Grantee shall not be held in default under, or in noncompliance with, the provisions of 's
Agreernent, nor suffer any enforcement or imposition of damages relating to noncompliance or
default, where such noncompliance or alleged defaults occurred or were caused by circumstan es
reasonably beyond the ability of the Grantee to anticipate and control, including, by way of
example, waz or riots, civil disturbances, floods or other natural catastrophes, labor stoppages, sl w
downs, power outages exceeding back-up power supplies or work delays caused by waiting or
utility providers to service or monitor their utility poles to which the Grantee's Cable System is
attached.
16.15 Attorneys' Fees
If any action or suit arises in connection with this Agreement, the prevailing party (either
County or Grantee, as the case may be) shall be entitled to recover all of its reasonable attorn
fees, costs and expenses in connection therewith, in addition to such other relief as the court ~
deem proper.
48
1
* ~
IN WITNESS WHEREOF, this Agreement is signed as of this 30th day of Mazch, 2004.
~~~ ~
._o~ oe
ATTEST: ~ ~ EAGLE COUNTY, COLORADO:
~ ^ /~
r A_~k~~~(.~~~dYJ~ O RPO~ ~_ I / I IC 1
Clerk
cn8~~,
~.. ' l A II.J' -•.
of County Commissioners
APPROVED AS TO FORM:
County Attorney
W:~r.~/'
?PEST:
~~ ~-
GLENN E. WALKER
NOTARY PUBLIC
STATE OF COLORADO
n~1y omm ss on res n. ,
--~ • -
Title:
49
OF COLORADO/FLORIDA, INC.
