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Home My WebLink AboutC04-375 Comcast of Colorado/Florida, Inc.r~~ -~'~5 -io EAGLE COUNTY, COLORADO AND COMCAST OF COLORADO/FLORIDA, INC. AMENDMENT TO CABLE TELEVISION AGREEMENT This Amendment to Cable Television Agreement ("Amendment") is entered into in Eagle, Colorado, this IV day of November, 2004 by and between Eagle County, Colorado, (hereinafter "Grantor" or the "County") and Comcast of Colorado/Florida, Inc. (hereinafter "Grantee"). WHEREAS, Grantor and Grantee entered into the Cable Television Agreement dated March 30, 2004 (the "Agreement"); WHEREAS, Grantor and Grantee have agreed to clarify their understanding with respect to certain matters involving Beaver Creek Metropolitan District, Smith Creek Metropolitan District and Bachelor Gulch Metropolitan District (all hereinafter collectively "Beaver Creek/Smith Creek/Bachelor Gulch Metropolitan Districts") since Affiliates of Grantee had pre-existing agreements with Beaver Creek Metropolitan District and Smith Creek Metropolitan District which predated the Agreement (the "Metro District Agreements") and these agreements were transferred and the duties and obligations thereunder were assumed by Affiliates of Grantee. Grantee intends to continue the Metro District Agreements with those parties; WHEREAS, Smith Creek Metropolitan District was the predecessor in interest and party to an agreement with an Affiliate of Grantee and Bachelor Gulch Metropolitan District has assumed the rights, duties and obligations under that agreement formerly with Smith Creek Metropolitan District; WHEREAS, Grantor has alleged that Grantee is in default under the Agreement for not including payments of Agreement Fees and other financial obligations from Subscribers located within Beaver Creek/Smith Creek/Bachelor Gulch Metropolitan Districts in Grantee's Agreement Fee payment to the Grantor; WHEREAS, the parties are in dispute as to whether Grantee is required to include Agreement Fee payments from Subscribers located within Beaver Creek/Smith Creek/Bachelor Gulch Metropolitan Districts as part of Grantee's Agreement Fee payments to Grantor; WHEREAS, the parties have reached settlement of all outstanding issues related to these disputes; WHEREAS, the parties enter into this Amendment to memorialize and fully set forth the terms and conditions of that settlement. NOW, THEREFORE, in consideration of the mutual promises made herein, and other good and valuable consideration as provided herein, the receipt and sufficiency of which are hereby acknowledged, Grantor and Grantee do hereby agree as follows: Section 2.3 of the Agreement is hereby deleted and replaced with the following: "This Agreement and the rights, privileges and authority granted hereunder shall take effect on March 30, 2004 (the "Effective Date"), and shall terminate fourteen (14) years thereafter on March 29, 2018, unless terminated sooner as hereinafter provided." 2. Section 9.2 of the Agreement is hereby amended by adding the following thereto: "Concurrent with the signing of this Amendment, Grantee shall provide the County with an additional Capital Contribution of Thirteen Thousand Five Hundred Dollars ($13,500.00) which the County shall use for Access capital equipment in connection with the Government Channel and Governmental Programming. References in this Amendment and the Agreement to "Capital Contribution" and initial capital contribution shall include the initial capital contribution of Fifteen Thousand Dollars ($15,000.00) previously made by Grantee. References in this Amendment and the Agreement to "Capital Contribution" and initial capital contribution shall also include the additional Thirteen Thousand Five Hundred Dollar ($13,500.00) payment by Grantee to the County. The total Capital Contribution is Twenty Eight Thousand Five Hundred Dollars ($28,500.00). In accordance with Federal law, Grantee has the right to and may elect to recover this Capital Contribution from Residential Subscribers (excluding free service accounts and bulk billing accounts). If Grantee elects to recover this Capital Contribution, Grantee shall notify the County when the Capital Contribution has been fully recovered." 3. Section 9.3 of the Agreement is amended by making the following modifications and additions thereto by deleting the first paragraph thereof and replacing it with the following: "Grantor and Grantee agree that Grantee has the right to recover from its Subscribers within the County the Capital Contribution of Twenty Eight Thousand Five Hundred Dollars ($28,500.00). Any additional PEG Capital Fees collected by Grantee and remitted to Grantor as required by this Agreement shall be for purposes of purchasing or replacing PEG access equipment, and shall be referred to in this Agreement as the Replacement Capital Contribution. Grantor and Grantee agree that both the Capital Contribution and the Replacement Capital Contribution recovery may be set forth as a separate line item (herein designated the "PEG Capital Fee.") on Residential Subscriber bills. Grantor and Grantee agree that from 60 days after the effective date of this Amendment through March 29, 2011, the PEG Capital Fee shall be $.65 per Residential Subscriber per month (excluding free service accounts and bulk billing ~~ accounts) and from March 30, 2011 through the remainder of the term of the Agreement, the PEG Capital Fee shall be $.60 per Residential Subscriber per month (excluding free service accounts and bulk billing accounts). From the date of collection of the PEG Capital Fee as set forth in the above paragraph through March 29, 2009, Grantee shall retain $.50 of the $.65 PEG Capital Fee as recovery of the Capital Contribution and shall remit to the County $.15 of the $.65 PEG Capital Fee. From March 30, 2009 through March 29, 2011, Grantee shall retain $.24 of the $.65 PEG Capital Fee as recovery of the Capital Contribution and shall remit to the County $.41 of the $.65 PEG Capital Fee. From March 30, 2011 to March 29, 2012, or until such time as the total Capital Contribution is fully recovered, Grantee shall retain $.24 of the $.60 PEG Capital Fee as recovery of the Capital Contribution and shall remit to the County $.36 of the $.60 PEG Capital Fee. If Grantee fully recovers the Capital Contribution prior to March 29, 2012, Grantee shall remit the full amount of the PEG Capital Fee to the County. From March 30, 2012 through the remainder of the term of the Agreement, Grantee shall remit to the County the entire $.60 PEG Capital Fee, provided that the Capital Contribution has been fully recovered. If Grantee has not recovered its Capital Contribution by March 28, 2012, Grantee shall continue to remit $.36 of the $.60 PEG Capital Fee until recovery is complete. Payments to the County shall commence without the necessity of an additional public meeting, since this Amendment has been approved in a public meeting. PEG Capital Fee payments received by the County and referred to herein shall be used by the County toward capital expenditures related to PEG Access. The Twenty Eight Thousand Five Hundred Dollars ($28,500.00) Capital Contribution and Replacement Capital Contributions shall not be considered revenue for the purposes of calculating and are not an advance against any Agreement Fees and Grantee shall not be entitled to any offset or deduction from Agreement Fees paid or owed to the County for any such amounts." 4. The Definition of "Agreement Area" is hereby modified to exclude the Beaver Creek/Smith Creek/Bachelor Gulch Metropolitan Districts for the purpose of calculating Gross Revenues. In lieu thereof, Grantee shall pay the County 1 % of Gross Revenues for the Subscribers located only in Beaver Creek Metropolitan District for each year during the term of the Agreement. Agreement Fees for areas outside of the Beaver Creek/Smith Creek/Bachelor Gulch Metropolitan Districts will be paid to Grantor pursuant to the Agreement. 5. The compensation paid and consideration provided for by Grantee to the County is in connection with the benefits and privileges granted under the Agreement in connection with the grant of authority by the County to Grantee to provide Cable Services in unincorporated Eagle County and to use County rights-of--way to provide and deliver Cable Services to Subscribers in unincorporated Eagle County and is not compensation for use ofrights-of--way which are owned or controlled by other governmental entities located in the County. L~ 6. County representatives will not editorialize as to matters involving the allegations or the negotiations leading to this Amendment. 7. The parties represent that each, respectively, has full right, power, and authority to execute this Amendment. 8. The County releases and discharges Grantee from any and all liabilities for breach of or non-compliance with the Agreement set forth in correspondence dated August 27, 2004 relating to Grantee's obligations under the Agreement occurring prior to the date of this Amendment. 9. This Amendment constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations, and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modification of or amendment to the Agreement must be in writing and executed by both parties. 10. Grantee agrees that Grantee and/or its Affiliates shall continue to make payments required under the terms of and for the duration of the Access/Operational Agreement entered into as of February 7, 1996 between Beaver Creek Metropolitan District and Cablevision VI, Inc., and the Smith Creek Metropolitan District and Cablevision VI, Inc. Cable Services Access Agreement entered into as of June, 2000 between Smith Creek Metropolitan District and Cablevision VI, Inc. 11. Except as amended or modified herein, all other terms and conditions of the Agreement shall continue in full force and effect. IN WITNESS WHEREOF, this Amendment to Cable Television Agreement is signed as of the ~ day of November, 2004. ATTEST: 04 ~r~~ ~~ EAGLE COUNTY, COLORADO K~,; ~~~ 's b; J`e~ ~e~Vl County Clerk `~~°'~~~ Chairm ,Board of County Commissioners APPROVED AS TO FORM: County Attorney ATTEST: COMCAST OF COLORADO/FLORIDA, INC. ~~~`+ -~ By: .SC o~ ~~ n c~e .- Title: ~r ~ V,~