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HomeMy WebLinkAboutC13-077 CenturyTel Televideo, Inc. r . 4, '
EXTENSION AND AMENDMENT OF CABLE TELEVISION AGREEMENT
THIS AMENDMENT OF CABLE TELEVISION AGREEMENT is entered into by and between
Eagle County, Colorado (hereinafter called the "Count . ") and CenturyTel Televideo, Inc. i
(hereinafter referred to as "CenturyLink ") as of the 1 day of March, 2013.
WITNESSETH:
WHEREAS, the Eagle County, Colorado Cable Television Agreement with CenturyTel
Televideo, Inc. was entered into between the County and CenturyTel Televideo, Inc. and was
effective as of March 30, 2004 (hereinafter referred to as the "Agreement");
WHEREAS, this Agreement expired on March 29, 2011 and the County and CenturyLink
reinstated that Agreement effective March 29, 2011 and extended the expiration date until
December 31, 2012;
WHEREAS, the Agreement was further extended until March 1, 2013;
WHEREAS, a copy of that Agreement is attached hereto and made part hereof as Exhibit "A ", a
copy of the Reinstatement and Amendment Agreement is attached hereto and made part hereof
as Exhibit `B" and the Extension of Reinstated and Amended Cable Television Agreement is
attached hereto and made part hereof as Exhibit "C ";
WHEREAS, the County and CenturyLink wish to further extend the Agreement until May
31,2013;
WHEREAS, CenturyLink holds this Agreement to own and operate a cable system within the
County; and
WHEREAS, the County and CenturyLink have continued to abide by the provisions of the
Agreement and each desire to further extend that Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the County and CenturyLink agree as follows:
1) Except as otherwise provided herein regarding the expiration date of the Agreement,
the Agreement is hereby now extended from March 1,2013 until May 31, 2013,
subject to the same terms and conditions contained in the Agreement which shall be
in full force and effect; and
2) The County and CenturyLink recognize that the Towns of Gypsum and Eagle are
discussing an upgrade of the cable television systems with CenturyLink. With this in
mind and to maintain flexibility, the County and CenturyLink agree to negotiate in
good faith between the period of March 1, , 2013 and May 31, 2013 to address
amendments and a further extension of the Agreement on terms and conditions
mutually acceptable to both the County and CenturyLink.
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IN WITNESS WHEREOF, the parties hereto have caused this Extension and Amendment of
Cable Television Agreement to be executed for the uses and purposes herein expressed on the
day and year first written above.
ATTEST: IAG EAGLE COUNTY, COLORADO
o t
- 11111P
County Clerk " Chai r • oard of County Commissioners
APPROVED AS TO FORM:
11
41, .. .J011
••rnty ey -
CENTURYTEL TELEVIDEO, INC.
ATTEST:
Title: /2vf - /22ti zC . Fes. 1 By: * -- -
Title: EVP- Public Policy &
Government Relations
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0 0,0q--- 11( --10
EAGLE COUNTY, COLORADO
CABLE TELEVISION AGREEMENT
WITH
CENTURYTEL TELEVIDEO, INC.
EXHIBIT
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND EXHIBITS 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 8
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 11
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 12
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 13
4.9 Performance Evaluations 14
4.10 Late Fees 14
4.11 Force Majeure 15
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS 15
5.1 Indemnification 15
5.2 Insurance 16
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5.3 Deductibles /Certificate of Insurance 17
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. PROGRAMMING 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 23
8.5 Parental Control Device 23
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 24
9.4 Management and Control of Access Channel 25
9.5 Underutilized Access Channel 25
9.6 Access Channel on Basic Service 25
9.7 Access Channel Assignments 26
9.8 Relocation of Access Channel 26
9.9 Technical Quality 26
9.10 Change in Technology 26
9.11 Information about Access Programming to Subscribers 26
9.12 Return Lines 26
SECTION 10. GENERAL RIGHT -OF -WAY USE AND CONSTRUCTION 26
10.1 Right to Construct 26
10.2 Right -of -Way Meetings 27
10.3 General Standard 27
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10.4 Permits Required for Construction 27
10.5 Emergency Permits 27
10.6 Compliance with Applicable Codes 28
10.7 GIS Mapping 28
10.8 Minimal Interference 28
10.9 Prevent Injury/Safety 28
10.10 Hazardous Substances 29
10.11 Locates 29
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 31
10.16 Electrical Bonding 31
10.17 Prewiring 31
10.18 Repair and Restoration of Property 31
10.19 Common Users 32
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 34
10.23 Movement of Cable System Facilities for Other Agreement Holders 34
10.24 Temporary Changes for Other Permitees 35
10.25 Reservation of County Use of Right -of -Way 35
10.26 Rights -of -Way Vacation 35
10.27 Tree Trimming 35
10.28 Inspection of Construction and Facilities 35
10.29 Codes 36
10.30 Stop Work 36
10.31 Standards 36
10.32 Work of Contractors and Subcontractors 37
SECTION 11. CABLE SYSTEM CONFIGURATION, TECHNICAL STANDARDS AND
TESTING 37
11.1 Subscriber Network 37
11.2 County Needs 38
11.3 Standby Power 38
11.4 Emergency Alert Capability 38
11.5 Technical Performance 38
11.6 Cable System Performance Testing 38
11.7 Additional Tests 39
SECTION 12. SERVICE AVAILABILITY AND SERVICE TO
SCHOOLS AND PUBLIC BUILDINGS 40
12.1 Universal Service 40
12.2 Service Availability 40
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SECTION 13. AGREEMENT VIOLATIONS 41
13.1 Procedure for Remedying Agreement Violations 41
13.2 Revocation 42
13.3 Procedures in the Event of Termination or Revocation 43
13.4 Receivership and Foreclosure 44
13.5 No Monetary Recourse Against the County 44
13.6 Alternative Remedies 44
13.7 Assessment of Monetary Damages 45
SECTION 14. AGREEMENT RENEWAL AND TRANSFER 45
14.1 Renewal 45
14.2 Transfer of Ownership or Control 45
SECTION 15. SEVERABILITY 46
• SECTION 16. MISCELLANEOUS PROVISIONS 46
16.1 Preferential or Discriminatory Practices Prohibited 46
16.2 Notices 47
16.3 Cumulative Rights 47
16.4 Venue 47
16.5 Goveming Law 48
16.6 Descriptive Headings 48
16.7 Publication Costs to be Borne by Grantee 48
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 49
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EAGLE COUNTY, COLORADO
AND
CENTURYTEL TELEVIDEO, INC.
CABLE TELEVISION AGREEMENT
This Cable Television Agreement ( "Agreement ") is entered into in Eagle, Colorado, this
30th day of March, 2004, by and between Eagle County, Colorado, hereinafter ( "Grantor" or the
"County ") and Century Tel Televideo, Inc. ( "Grantee "). Grantor and Grantee are sometimes referred
to hereinafter collectively as the "parties."
WHEREAS, the Grantor has identified the future cable - related needs and interests of the
Grantor ,end 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 are
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 are hereby
acknowledged, Grantor and Grantee do hereby agree as follows:
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SECTION 1. DEFINITIONS AND EXHIBITS
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 singular, 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 are 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 are 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 hardware or software.
"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 areas where
there are Home Owners Associations, Metro Districts, Private Communities and any areas annexed
by the County during the term of this Agreement.
"Agreement Fee" means that fee payable to the County as described in Section 3.
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"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 charges.
"Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission of
local television Broadcast Signals and local Access programming.
"Broadcast Signal" 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 "System" 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 rp:transmit 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.
"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.
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"County" 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 Board 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 are clearly 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 (are) responsible for, through any arrangement,
the management and operation of such a Cable System. Grantee means Century Tel Televideo, Inc.
to the extent this entity operates a Cable System in the County or its lawful successors, transferees
or assignees.
"Gross Revenues" means any and all revenue received by Grantee, or by any other entity that is 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 Revenues
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 Cable
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Service, optional Premium Cable Services, Cable Service installation, disconnection, reconnection
and charge-in-service fees, Leased Access Channel fees, remote control rental fees, all Cable
Service lease payments from the Cable System, late fees and administrative fees, fees, payments 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 principles
(GAAP), revenues from rentals of converters or other Cable System equipment used to receive
Cable Service, advertising sales revenues (including local, regional and a pro rata share of national
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 and
accounted for as revenue under GAAP, revenues from program guides, additional outlet fees,
revenue from Cable Internet Service to the extent this service is considered a Cable Service as
further &scribed below, Agreement Fees, revenue from interactive services to the extent they are
considered Cable Services under federal law, revenue from the sale or carriage of other Cable
Services on the Cable System, and revenues from home shopping. Gross Revenues shall include
revenue received by any entity other than the Grantee where necessary to prevent evasion or
avoidanc of the obligation under this Agreement to pay the Agreement Fees. Gross Revenues
shall not include (i) Bad Debt, provided, however, that all or part of any such Bad Debt that is
written off but subsequently collected shall be included in Gross Revenues in the period collected;
or (ii) any taxes on services furnished by the Grantee which are imposed directly on any Subscriber
or user b y the State, County or other govemmental 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 this
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 FCC
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 local
governmi,nts' authority to regulate Cable Modem Service and the scope of the FCC's jurisdiction to
regulate Cable Modem Service. If the FCC's March 15, 2002 ruling that Cable Modem Service 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 limited to
Congressional legislation, to the extent that Cable Modem Service is determined to be a Cable
Service within the jurisdiction of a local regulatory/franchising authority and revenue from Cable
Modem Service may be included in Gross Revenues derived from the operation of the Cable
System to provide Cable Services, for purposes of paying franchise fees or Agreement Fees
collected by local regulatory/franchising authorities, then the definition of Gross Revenues shall
include revenues the Grantee receives from providing Cable Internet Service in the Agreement
Area.
"Headend" means any facility for signal reception and dissemination on a Cable System, including
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 System
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 charge.
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"Noncommercial" means, in the context of Access Channels, that particular products and services
are not promoted or sold. This term shall not be interpreted to prohibit an Access Channel operator
or programmer from soliciting and receiving financial support to produce and transmit video
programming on an Access Channel, or from acknowledging a contribution, in the manner of the
Corporation for Public Broadcasting or some similar manner, subject to applicable law.
'Normal Business Hours" means those hours during which most similar businesses in the County
are open to serve customers. Normal business hours is encouraged to include some evening hours at
least one night per week and/or some hours on Saturday.
"Normal Operating Conditions" means those service conditions that are within the control of the
Grantee. Those conditions which are not within the control of the Grantee include, but are not
limited to, natural disasters, civil disturbances, power outages, telephone network outages, and
severe or unusual weather conditions. Those conditions which are ordinarily within the control of
the Grantee include, but are not limited to, special promotions, pay - per -view events, rate increases,
regular peak or seasonal demand periods and maintenance or upgrade of the System.
"Person" means any individual, sole proprietorship, partnership, association, or corporation, or any
other form of entity or organization.
"Premium Service" or "Pay Service" means programming choices (such as movie Channels, pay -
per -view programs, or video on demand) offered to Subscribers on a per - Channel, per - program or
per -event basis.
"Residential Subscriber" means any Subscriber who receives Cable Service delivered to single or
multiple dwelling units, excluding such Dwelling Units billed on a bulk - billing basis.
"Right -of -Way" means each of the following which have been dedicated to the public or are
hereafter dedicated to the public and maintained under public authority or by others and located
within the Agreement Area: streets, roadways, highways, avenues, lanes, alleys, bridges, sidewalks,
easements, rights -of -way and similar public property and areas.
"School" means any State accredited K -12 public or private educational institution (excluding home
schools)
"Service Interruption" means the loss of picture or sound on one or more cable channels.
"State" means the State of Colorado.
"Subscriber" means any Person in the Agreement Area who or which elects to subscribe to, for any
purpose, Cable Service provided by Grantee by means of or in connection with the Cable System
and whose premises are physically wired and lawfully Activated to receive Cable Service from
Grantee's Cable System.
"Subscriber Network" means that portion of the Cable System used primarily by Grantee in the
transmission of Cable Services to Residential Subscribers.
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"Tier" mans a group of Channels for which a single periodic subscription fee is charged.
"Two -Wry" means Upstream and Downstream transmissions.
"Upstream" means carrying a transmission to the Headend from remote points on the Cable System
or from Interconnection points on the Cable System.
"Video F "rogramming" means programming provided by, or generally considered comparable to
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 make
reasonab; e and lawful use of the Rights -of -Way within the County to construct, operate, maintain,
reconstruct, rebuild and upgrade a Cable System for the purpose of providing Cable Service subject
to the terms and conditions set forth in this Agreement. This Agreement shall constitute both a
right and an obligation to provide the Cable Services required by, and to fulfill the obligations set
forth in, the provisions of this Agreement.
(B) The Grantee, through this Agreement, is granted the right to operate its System
using the Grantor's Rights -of -Way within the Agreement Area in compliance with all lawfully
enacted Generally Applicable construction codes and regulations. The Grantee specifically agrees to
comply with the lawful provisions of Generally Applicable County ordinances and resolutions
passed p irsuant to lawful police powers provided that in the event of a conflict between the
provisions of ordinances or resolutions and the Agreement, the express provisions of the Agreement
shall govern. This Agreement constitutes a valid and enforceable contract between the parties.
Subject to federal and state preemption, this Agreement may not be unilaterally altered by the
Grantor through subsequent amendment to any ordinance, rule, regulation, resolution, or other
enactment of Grantor, except in the lawful exercise of Grantor's police power. Grantee reserves the
right to challenge provisions of any ordinance, rule, regulation, resolution or other enactment of the
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 imposing
additional lawful conditions, including additional compensation conditions for use of the Rights -of-
Way, should Grantee provide service other than Cable Service.
(I)) Grantee promises and guarantees, as a condition of exercising the privileges granted
by this Agreement, that any Person who is a Grantee of this System directly involved in the offering
of Cable Service in the Agreement Area, or directly involved in the management or operation of the
Cable System in the Agreement Area, will also comply with the terms and conditions of this
Agreement.
(E) No rights shall pass to Grantee by implication. Without limiting the foregoing, by
way of ex ample and not limitation, this Agreement shall not include or be a substitute for:
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(1) Any other permit or authorization lawfully required and Generally
Applicable for the privilege of transacting and carrying on a business within the County that may be
required by the Generally Applicable ordinances and laws of the County;
(2) Any permit, agreement, or authorization lawfully required by the County and
Generally Applicable for Right -of -Way users in connection with operations on or in Rights -of -Way
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 for
occupying any other property of the County or private entities to which access is not specifically
granted by this Agreement including, without limitation, permits and agreements for placing
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 imposition
of any lawful conditions on Grantee with respect to non -Cable Services, telecommunications
services or information services, whether similar, different or the same as the condition specify
herein. This Agreement does not relieve Grantee of any obligation it may have to obtain from the
County any such authorization that may lawfully be required in order to provide non -Cable
Services, telecommunications services or information services. However, this Agreement shall not
be read as a concession by Grantee that it needs authorization to provide non -Cable Services,
telecommunications services or information services.
2.2 Use of Rights - of - Way
(A) Subject to the County's lawful and Generally Applicable permitting, supervision and
control, Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over,
under, upon, across, and along the Rights -of -Way within the County such wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, pedestals, attachments and other property and
equipment as are necessary and appurtenant to the operation of a Cable System within the County.
(B) Grantee must follow County established requirements for placement of Cable
System facilities in Rights -of -Way, including the specific location of facilities in the Rights -of-
Way, and must in any event install Cable System facilities in a manner that minimizes interference
with the proper use of the Rights -of -Way by others, including others that may be installing
communications facilities. Grantee shall comply with all Generally Applicable construction codes,
laws, ordinances, regulations, and procedures, and must obtain any and all necessary permits from
the County prior to commencing any construction activities.
23 Effective Date and Term of Agreement
This Agreement and the rights, privileges and authority granted hereunder shall take effect on
March 30, 2004 (the "Effective Date "), and shall terminate seven (7) years later on March 29, 2011,
unless terminated sooner as hereinafter provided.
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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 whatsoever,
including the right of the County to use same for any purpose it deems fit, including the same or
similar 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 this
Agreement and for such additional agreements for Cable Systems as the County deems appropriate
consistent with the other provisions herein.
2.5 Police Powers
Grantee':; rights hereunder are subject to the lawful police powers of the County to adopt and
enforce ordinances necessary to the safety, health, and welfare of the public, and Grantee agrees to
comply with all Generally Applicable laws and ordinances lawfully enacted, or hereafter enacted,
by the County or any other legally constituted governmental unit having lawful jurisdiction over the
subject matter hereof pursuant to such police powers. The County shall have the right to adopt,
from time to time, such ordinances as may be deemed necessary in the exercise of its lawful police
power; provided that such ordinances shall be reasonable. Grantee reserves the right to challenge
provisions of any ordinance, rule, regulation, resolution or other enactment of the Grantor that
conflicts with its contractual rights, either now or in the future.
2.6 ( ;rant of Other Agreements
In the event the County enters into an agreement, permit, license, authorization or other agreement
of any kind with a similarly situated wireline cable operator other than the Grantee to enter into the
County's Rights -of -Way for the purpose of constructing or operating a Cable System or providing
Cable Service to any part of the Agreement Area, in which the Grantee is actually providing Cable
Service lender the terms and conditions of this Agreement or is required to extend Cable Service to
under the provisions of this Agreement, the material provisions thereof, taken as a whole, shall be
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, privileges
and agreements granted herein, that it has carefully read and fully comprehends the terms and
conditions of this Agreement and is willing to and does accept all lawful and reasonable risks of the
meaning of the provisions, terms and conditions herein. The Grantee further acknowledges and
states that it has fully studied and considered all requirements and provisions of this Agreement,
and find, that the same are 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 to
issue anti enforce the Agreement; (2) accepts and agrees to comply with each and every provision of
this Agreement subject to applicable law; (3) agrees to comply with each and every provision of
applicable law; and (4) agrees that the Agreement was granted pursuant to processes and procedures
consistent with applicable law as existed as of the effective date of this Agreement, and that it will
not raise any claim to the contrary.
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SECTION 3. AGREEMENT FEE PAYMENT AND FINANCIAL CONTROLS
3.1 Agreement Fee
(A) As compensation for the benefits and privileges granted under this Agreement and
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 five
percent (5 %) of Grantee's annual Gross Revenues derived within the Agreement Area or as
otherwise included in the definition of Gross Revenues. Accrual of such Agreement Fee shall
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 between
Cable Services (which are subject to the Agreement Fee) and non -Cable Services (which are not
subject to the Agreement Fee but may be subject to other fees and/or taxes), when these two types
of service are bundled together in a discounted package offered to Subscribers. To the extent
discounts reduce revenues includable for purposes of calculating Agreement Fees, the Grantee may
not unfairly or unlawfully allocate discounts for bundled services for the purpose of evading
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 the
computation of the Agreement Fee shall be a calendar year. Grantee's Agreement Fee payments to
the County shall be computed quarterly for the preceding calendar quarter ending March 31, June
30, September 30, and December 31. Each quarterly payment shall be due and payable no later than
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 the
amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a
release of any claim the County may have for further or additional sums payable or for the
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 total
amount of Gross Revenues for the quarter and all payments, deductions and computations for the
period. Such statement shall be signed by the General Manager or a financial officer or controller
of Grantee, stating that it accurately reflects the Gross Revenues of the Grantee, prior to submission
to the County.
3.5 Audits
On an annual basis, upon thirty (30) days prior written notice, the County, including the County's
Auditor or his/her authorized representative, shall have the right to conduct an independent audit of
Grantee's records reasonably related to the administration or enforcement of this Agreement, in
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 One
Thousand Dollars ($1,000.00). The County's right to audit and the Grantee's obligation to retain
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records related to an Agreement Fee audit shall expire three (3) years after each Agreement Fee
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 the
calendar quarter, Grantee shall pay interest on the amount due (at the prime rate as listed in the Wall
Street Journal on the date the payment was due), calculated from the date the payment was
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 pay
interest at the rate of the eight percent (8 %) per annum, compounded semi - annually calculated from
the date each portion of the underpayment was originally due until the date Grantee remits the
underpa)ment to the County. This interest on late payment shall not be included in the five percent
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 an
Agreement Fee of five percent (5 %) of Gross Revenues in any twelve (12) month period. In the
event that at any time throughout the term of this Agreement, Grantor is authorized to collect an
amount in excess of five percent (5 %) of Gross Revenues in any twelve (12) month period, it may
do so with sixty (60) days written notice to Grantee, provided that all wireline cable operators in the
Agreement Area over which the Grantor has jurisdiction are treated in an equivalent manner and
provided that Grantor and Grantee hereby agree to negotiate in good faith and have met after thirty
(30) day:; written notice and then have mutually agreed to such increase and have mutually agreed
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 forth
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 regarding PEG capital
funding and Access Channels are excluded from the definition of Agreement Fees herein and are
not Agreement Fees, nor are they to be offset or credited against any Agreement Fee payments due
to Grantor, nor do they represent an increase in Agreement Fees to be passed through to Subscribers
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 are used for PEG Access capital support. The
Grantee agrees not to assert or otherwise claim at any time before any court of competent
jurisdiction or any administrative agency that, as of the effective date of this Agreement, that such
PEG capital funding and Access Channels are Agreement Fees as defined under federal or state law
or regulations so as to form the basis for offset or credit against any and or all Agreement Fee
payments paid or due to the County.
3.10 'Fax 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 are now or hereafter required to be paid by businesses in
general by any law of the County, the State or the United States including, without limitation,
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utility, business, occupation, sales, use and other taxes, business license fees or other payments.
Payment of the Agreement Fees under this Agreement shall not exempt Grantee from the payment
of any other license fee, permit fee, tax or charge on the business, occupation, property or income of
Grantee that may be lawfully imposed by the County. Other than the fee for the initial capital
contribution and the Replacement Capital Contribution fees required in Section 9 herein, any
license fees, or separate taxes or charges 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 capital
contribution and Replacement Capital Contributions fees are not a tax.
3.11 Financial Records
Grantee agrees to meet with a representative of the County upon written request to review Grantee's
methodology of record - keeping, financial reporting, the computing of Agreement Fee obligations
and other procedures, the understanding of which the County reasonably deems necessary for
reviewing reports and records.
3.12 Payment on Termination
If this Agreement terminates for any reason, the Grantee shall file with the County within ninety
(90) calendar days of the date of the termination, a statement, certified by an independent certified
public accountant, showing the Gross Revenues received by the Grantee since the end of the
previous fiscal year. If not otherwise paid by Grantee, the County reserves the right after notice and
opportunity to cure as provided in Section 13 in this Agreement to satisfy any remaining financial
obligations of the Grantee to the County by utilizing the funds available in any security provided by
the Grantee.
SECTION 4. ADNIINISTRATION AND REGULATION
4.1 Authority
(A) The County shall reasonably regulate the exercise of the privileges permitted by this
Agreement in the public interest. The County may delegate its power and right or any part thereof,
to the extent permitted under State and local law, to any agent provided, however, Grantee shall
have the right to appeal to the legislative body of the County any adverse determination made by a
delegate of the County.
(B) Nothing in this Agreement shall limit nor expand the County's right of eminent
domain under State law.
4.2 Rates and Charges
All of Grantee's rates and charges related to or regarding Cable Services shall be subject to
regulation by the County to the full extent authorized by applicable federal, State and local laws.
4.3 No Rate Discrimination
All of Grantee's rates and charges shall be published (in the form of a publicly- available rate card)
and be non - discriminatory as to all Persons and organizations of similar classes, under similar
circumstances and conditions. Grantee shall apply its rates in accordance with governing law,
without regard to race, color, ethnic or national origin, religion, age, sex, sexual orientation, marital,
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military or economic status, or physical or mental disability or geographic location within the
County. Nothing herein shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction with valid
promotional campaigns; or
(B) The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens; or
(C) The offering of rate discounts for Cable Service; or
(1)) The Grantee from establishing different and nondiscriminatory rates and charges
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 the
County a complete schedule of applicable rates and charges for Cable Services provided under this
Agreement. Nothing in this subsection shall be construed to require Grantee to file rates and
charges under temporary reductions or waivers of rates and charges in conjunction with
promoticnal campaigns. As used in this subsection, no rate or charge shall be considered temporary
if Subscribers have the ability over a period greater than six (6) consecutive months (or such other
period as may be approved by the County) to purchase Cable Services at such rate or charge.
03) Upon written request of the County, Grantee shall provide a complete schedule of
current rites and charges for Leased Access Channels, or portions of such Channels, provided by
Grantee. The schedule shall include a description of the price, terms, and conditions established by
Grantee for Leased Access Channels.
4.5 Cross Subsidization
Grantee shall comply with all applicable laws regarding rates for Cable Services and all applicable
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 and
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 shall
be deemed to be of the essence, and any failure of Grantee to perform within the allotted time may
be considered a material breach of this Agreement, and sufficient grounds for the County to invoke
any relevant remedy.
4.8 Agreement Amendment Procedure
Either party may at any time seek an amendment of this Agreement by so notifying the other party
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 suggested
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amendment(s), such amendments) 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 the
third anniversary dates of the Effective Date of this Agreement. All such evaluation sessions shall
be conducted by the County.
(B) Special evaluation sessions may be held at any time by the County during the term
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 (2)
weeks in advance in a newspaper of general circulation in the County. Grantee shall also include
with or on the Subscriber billing statements for the billing period immediately preceding the
commencement of the session, written notification of the date, time, and place of the regular
performance evaluation session, and any special evaluation session as required by the County,
provided Grantee receives appropriate advance notice and provided the billing statement can
reasonably accommodate such notification.
(D) Topics which may be discussed at any evaluation session may include, but are not
limited to, Cable Service rate structures; Agreement Fee payments; liquidated damages; application
of new technologies; Cable System performance; Cable Services provided; programming offered;
Subscriber complaints; privacy; amendments to this Agreement; judicial and FCC rulings; line
extension policies; and the County or Grantee's rules; provided that nothing in this subsection shall
be construed as requiring the renegotiation of this Agreement.
(E) During evaluations under this subsection, Grantee shall fully cooperate with the
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, charge, cost, fee or sum, however
characterized, that the Grantee imposes upon a Subscriber solely for late payment of a bill is a late
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 the
ability of the Grantee, if any, to impose other assessments, charges, fees or sums other than those
permitted by this subsection, for the Grantee's other services or activities it performs in compliance
with applicable law, including FCC law, rule or regulation.
(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 this
subsection, shall apply equally in all parts of the County without regard to the neighborhood or
income level of the Subscriber.
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4.11 Force Majeure
In the event Grantee is prevented or delayed in the performance of any of its obligations under this
Agreement by reason beyond the control of Grantee, Grantee shall have a reasonable time, under
the circumstances, to perform the affected obligation under this Agreement or to procure a
substitute for such obligation that is reasonably satisfactory to the County. Those conditions which
are not within the control of Grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe or unusual weather conditions
which have a direct and substantial impact on the Grantee's ability to provide Cable Services in the
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 - performance is
the result of any force majeure condition, Grantee shall not be held in default nor have damages
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 and
its officers, officials, boards, commissions and employees harmless from any action or claim for
injury, damage, loss, liability, cost or expense, including court and appeal costs and attorneys' fees
or expenses, arising from any casualty or accident to Person or property, including, without
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 act
done under this Agreement, by or for Grantee, its agents, or its employees, or by reason of any
neglect or omission of Grantee. Grantee shall reasonably consult and cooperate with the County
while conducting its defense of the County.
(B) Indemnification for Relocation. Grantee shall indemnify the County for any
damages, claims, additional costs or expenses assessed against, or payable by, the County arising
out of, or resulting from, Grantee's failure to remove, adjust or relocate any of its facilities in the
Rights-of-Way in a timely manner in accordance with any relocation lawfully required by the
County to the extent the Grantee is lawfully required to pay relocation costs.
(C) Additional Circumstances. Grantee shall also indemnify, defend and hold the
County harmless for any claim for injury, damage, loss, liability, cost or expense, including court
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 extent
such actions are consistent with this Agreement and applicable law;
(2) Damages arising out of any failure by Grantee to secure consents from the
owners, authorized distributors, or licensees/licensors of programs to be delivered by the Cable
System, whether or not any act or omission complained of is authorized, allowed or prohibited by
this Agreement.
(D) Procedures and Defense. If a claim or action arises, the County or any other
indemnified party shall promptly tender the defense of the claim to Grantee, which defense shall be
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(C) Maintenance of the requisite collateral shall not in any way limit the liability of the
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 County
Ordinance as the same may be amended from time to time by the County Commissioners. Grantee
reserves the right to challenge any customer service standard that it believes is inconsistent with its
contractual rights under this Agreement.
6.2 Subscriber Privacy
Grantee shall fully comply with any provisions regarding the privacy rights of Subscribers
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 this
Agreement. Upon written request, Grantee will provide to the County a sample of the Subscriber
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 media
in the normal course of business to the County in advance.
6.5 Customer Service Location
Throughout the Agreement term, the Grantee is encouraged to maintain one (1) customer service
location in incorporated or unincorporated Eagle County.
SECTION 7. REPORTS AND RECORDS
7.1 Open Records
The County, including the County's Auditor or his/her authorized representative, shall have access
to, and the right to inspect, any books and records of Grantee, and Affiliates that are maintained in
the ordinary course of business and readily available at Grantee's local offices and which are
reasonably related to the administration or enforcement of the terms of this Agreement. Grantee
shall not deny the County access to any such records on the basis that Grantee's records are under
the control of any Affiliate or a third party. The County may, in writing, request copies of any such
records or books required under this Section 7 and Grantee shall provide such copies within thirty
(30) days of the receipt of such request. One (1) copy of all reports and records required under this
or any other subsection shall be furnished to the County, at the sole expense of Grantee. If the
requested books and records are too voluminous, or for security reasons cannot be copied or
removed, then Grantee may request, in writing within ten (10) days of receipt of the County's
written request that the County inspect them at Grantee's local offices. If any books or records of
Grantee are not kept in a local office and not made available at the local offices or made available in
copies to the County upon written request as set forth above, and if the County reasonably
determines that an examination of such records is necessary or appropriate for the performance of
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any of th.e County's administration or enforcement of this Agreement, then all reasonable travel and
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 proprietary or
confidential information, to the extent Grantee makes the County aware of such confidentiality and
consistent with applicable Open Records Laws. Grantee shall be responsible for clearly and
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 information is
confidential. If the County believes it must release any such confidential books and records in the
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 demand
from any Person for disclosure of any information designated by Grantee as confidential, the
County shall, so far as consistent with applicable law, advise Grantee and provide Grantee with a
copy of ,my written request by the party demanding access to such information within a reasonable
time. Until otherwise ordered by a court or agency of competent jurisdiction, the County agrees
that, to tae extent permitted by State and federal law, it shall deny access to any of Grantee's books
and records marked confidential as set forth above to any Person. Grantee shall reimburse the
County ibr all reasonable costs and attorneys fees incurred in any legal proceedings pursued under
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 time
consistent with its document retention policies, and shall furnish to the County upon written
request:
(1) Upon the completion of the upgrade of the Cable System, and thereafter as
additional facilities are added or modified, a complete set of trench and strand maps. As -built maps
including proprietary electronics shall be available at Grantee's offices for inspection by the
County's authorized representative(s) or agent(s) and made available to such upon reasonable
written notice during regular business hours, during the course of technical inspections as
reasonably conducted by the County. These maps shall be certified as accurate as of the time they
are prepared by an appropriate representative of the Grantee;
(2) A copy of all FCC filings on behalf of Grantee or Affiliates, which relate to
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 public
information, and shall be treated as such, except for information involving the privacy rights of
individual Subscribers.
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7.4 Annual Reports
Upon written request, but no more often than annually, Grantee shall submit to the County a written
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 System;
and
(B) The number of homes passed, beginning and ending plant miles, and any
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 pleadings,
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 such
documents directly relate to the operations of Grantee's Cable System within the County. Grantee
shall submit such documents to the County no later than thirty (30) days after receipt of written
request. Grantee shall not claim confidential, privileged or proprietary rights to such documents
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 documents
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 available
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 written
request, this file shall be made available to the County during normal business hours. Upon written
request, Grantee shall provide the County an annual executive summary, which shall include the
following information:
(A) A summary of service calls, identifying the number and nature of the requests and
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 that
Grantee is given thirty (30) days prior written notice of such request before the end of the year.
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7.7 False Statements
Any false or misleading statement or representation in any report required by this Agreement (not
including clerical errors or errors made in good faith) may be deemed a material breach of this
Agreement and may subject Grantee to all remedies, legal or equitable, which are available to the
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 equipment
located is the Rights -of -Way or on other public property at any reasonable time during business
hours up an at least twenty -four (24) hours notice, or, in case of emergency, upon demand without
prior not .ce taking into account public health, safety and welfare.
SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide at least the following initial broad categories of programming to the extent
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;
(H) 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 of
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 of
Cable Services provided by Grantee on the Effective Date of this Agreement must be maintained
after any such modification.
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8.3 Complementary Cable Service
The Grantee, upon written request from the County, shall provide without charge one outlet of
Basic Service to those administrative buildings now existing or hereafter constructed and owned
and occupied or leased and occupied by the County, provided that these buildings are passed by
Grantee's Cable System and provided further that, except for those buildings already served, they
are within 125 aerial feet (a Standard Installation) of Grantee's Cable System, excluding those
buildings or portions of buildings that house or occupy prison/jail populations. Where County
administrative office(s) are located in a multiuse building, Grantee shall on the same basis as it
provides service to other County administrative buildings under this Subsection 8.3, provide
without charge one outlet of Basic Service to a County office in such building, provided that such
free outlet shall not be extended to provide complimentary service to non - County offices or
facilities in the building. In addition to the foregoing, free Basic Service shall be provided to the
following:
1. Main County Building Complex (4 drops minimum), consisting of two in the
Administration Building (500 Broadway); one in the Annex/Old Court House
Building (550 Broadway); and one in the Facility Management Building (590
Broadway).
2. Joint Maintenance Facility (2 drops), including the Road and Bridge Department
and Eagle County Regional Transit -ECO (3289 Cooley Mesa, near the airport).
3. Airport Administration (519 Eldon Wilson Road).
4. Airport Terminal (217 Eldon Wilson Road).
5. Justice Center (2 drops, including the Sheriffs Office and Court Administration
(855 Chambers Avenue).
6. Justice Center Annex, District Attorney's Office (955 Chambers Avenue).
Grantee shall maintain complementary Basic Service to those locations that are currently served and
those outlets currently provided. Except where already existing, the Cable Service provided shall
not be distributed beyond the originally installed outlet without authorization from Grantee. Such
outlets may only be used for lawful purposes, shall not be located in public waiting areas, nor shall
the outlets be used to entertain public groups, or be used for commercial purposes. The Grantor
shall take reasonable precautions to prevent any use of the Grantee's Cable System in any manner
that results in inappropriate use thereof, or any loss or damage to the Cable System. In the case of
leased facilities, the recipient of service is responsible for securing approval for appropriate right of
entry suitable to the Grantee in its reasonable discretion. To the extent not inconsistent with 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 educational facilities
required by this Section. The Grantee shall not be required to provide an outlet to such buildings
where a non - Standard Installation is required, unless the Grantor or building owner /occupant agrees
to pay the incremental cost of any necessary Cable System extension and/or non - Standard
Installation. If additional outlets of Cable Service are provided to such buildings beyond those
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required herein, the building owner /occupant shall pay the usual installation and 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 meet 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 recuest by any Subscriber, Grantee shall provide by sale or lease a parental control or lockout
device, traps or filters to enable a Subscriber to prohibit viewing of a particular Cable Service
during periods selected by the Subscriber. Grantee shall inform its Subscribers of the availability of
the lockout device at the time of their initial subscription and periodically thereafter. Any device
offered shall be at a rate, if any, in compliance with applicable law.
8.6 Continuity of Service Mandatory
(A) It shall be the right of all Subscribers to continue to receive Cable Service from
Grantee insofar as their financial and other obligations to Grantee are honored. The Grantee shall
use reasonable efforts so as to ensure that all Subscribers receive continuous, uninterrupted Cable
Service regardless of the circumstances. For the purposes of this subsection, "uninterrupted" does
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 Cable
System in accordance with this Agreement, the new grantee shall notify Subscribers and cooperate
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) consecutive
hours without prior approval of the County Administrator, or without just cause, shall be considered
a material violation of this Agreement.
SECTION 9. PEG ACCESS
9.1 Access Channel
Within cne hundred eighty (180) days from the effective date of this Agreement, Grantee shall
provide at no cost to the County, one (1) Downstream Government Access Channel on the Cable
System. It is intended that this Access Channel will be used by the County for Noncommercial
educational and governmental programming Access purposes. The Access Channel shall meet
performance specifications required by the FCC and shall be at a signal quality level at least
consistent with the other Channels provided by Grantee on the System. The County may in its
reasonable discretion choose to share programming space on this Channel with the Town of Eagle
and Town of Gypsum; however, it is understood and agreed that the County maintains priority for
selecting when County programming and educational programming is carried and at what times.
9.2 Capital Contribution
Within thirty (30) days of the effective day of this Agreement, Grantee shall provide the County a
one time capital contribution of Three Thousand Four Hundred Dollars ($3,400.00) which the
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County shall use to purchase Access equipment. In accordance with Federal law, Grantee has the
right to and may elect to recover this initial capital contribution from Residential Subscribers
(excluding free service accounts and bulk billing accounts). If Grantee elects to recover this initial
capital contribution, 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 contribution or after the lapsing of four
(4) years (whichever occurs first), Grantor may by written notice, direct Grantee to pay to the
Grantor a fee based upon the formula of up to 50 cents per Residential Subscriber per month as
Replacement Capital Contributions (excluding free service accounts and bulk billing accounts). In
accordance with Federal law, Grantee has the right to and may elect to recover Replacement Capital
Contributions from Residential Subscribers (excluding free service accounts and bulk billing
accounts) and with respect to Replacement Capital Contributions, Grantee shall be obligated to pay
no more than the amount it actually receives from Residential Subscribers (excluding free service
accounts and bulk billing accounts). Prior to directing Grantee to pay any amounts for Replacement
Capital Contributions, the Grantor shall hold a public meeting regarding the consideration of
whether the Grantor shall direct Grantee to pay Replacement Capital Contributions to the Grantor.
Upon conclusion of such a public meeting, and if the Grantor determines that Replacement Capital
Contributions shall be paid, such Replacement Capital Contributions will be payable by Grantee to
the Grantor. The Replacement Capital Contributions may only be applied by the County toward
capital expenditures related to PEG Access.
After the Replacement Capital Contributions take effect, each payment shall be due and payable
with the quarterly Agreement Fee payment. As per Section 16.9, Grantee is not an agent of Grantor
and it is Grantee's decision whether to collect the initial capital contribution and Replacement
Capital Contributions from Subscribers. Notwithstanding anything to the contrary in this Section
9.3, Grantee shall not be responsible for paying the Replacement Capital Contributions with respect
to gratis or bad debt accounts.
The County shall have discretion to allocate the Replacement Capital Contributions in accordance
with applicable law, provided that the County submits a summary of capital expenditures from the
Replacement Capital Contributions to Grantee within sixty (60) days of the end of each calendar
year. The County may institute, reinstitute or waive the requirement of Grantee to make
Replacement Capital Contributions to Grantor altogether, provided that Grantee is given sixty (60)
days advance written notice.
To the extent the County makes Access capital investments using County funds prior to receiving
necessary Replacement Capital Contributions, ary p p Co ns, County is entitled to apply subsequent
Replacement Capital Contributions payments from Grantee toward such County capital
investments. If the Grantee elects to collect the initial capital contribution or the Replacement
Capital Contributions from Subscribers, the County and Grantee agree that the initial capital
contribution and any Replacement Capital Contributions will then be referred to on Subscribers'
bills as a "PEG Fee ", or language substantially similar thereto. Grantee shall not change such
reference on the Subscribers' bills without the prior written consent of the County, which consent
shall not be unreasonably withheld.
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The Three Thousand Four Hundred Dollars ($3,400.00) capital contribution and the Replacement
Capital Contributions payments described in this Section 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 so long as the Three Thousand Four Hundred Dollars ($3,400.00) capital contribution and
Replacement Capital Contributions are used for PEG Access capital support purposes. The Grantee
shall have the opportunity to review records of the County and/or its Designated Access Providers
regarding; the use of such funds.
9.4 Management and Control of Access Channel
The County shall have sole and exclusive responsibility for identifying the Designated Access
Provider and allocating the Access resources under this Section. The County may authorize
Designated Access Provider to control and manage the use of any and all Access facilities provided
by Grantee under this Agreement, including, without limitation, the operation of Access Channel.
To the extent of such designation by the County, the Designated Access Provider shall have sole
and exclusive responsibility for operating and managing such Access facilities. The County or its
designee may formulate rules for the operation of the Access Channel, consistent with this
Agreement. Grantee shall cooperate with the County and Designated Access Provider in the use of
the Cable System and Access facilities for the provision of Access. Nothing herein shall prohibit
the County from authorizing itself to be a Designated Access Provider. Nothing herein shall
prohibit the County from assigning several Designated Access Providers to share a single Access
Channel.
The assiped Access Channel can be used to transmit signals in any format that is technically
compatible with the Cable System, including, by way of example and not limitation, analog and
digital video, audio only, secondary audio and/or text messages and video streaming. Such uses
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 Channel
Capacity of the Cable System, which may include allowing the Grantee to use underutilized time on
the Access Channel. If the Grantee believes that the Access Channel has significantly underutilized
time, Grantee may file a request with the County to use that time. The County shall render a
decision regarding the matter within sixty (60) days of receiving the request. Should the County
find that the Access Channel or portion of the Access Channel may be used by the Grantee, then
Grantee may begin using such time ninety (90) days after receipt of the decision. The Grantee's
request shall not be unreasonably denied. It is acknowledged and agreed that the Access Channel
shall not, during the term of this Agreement, revert back to Grantee and it shall be in the County's
reasonable discretion to allow any usage of the Access Channel by Grantee so that the County
maintain:. 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 Grantee,
without limitation, as a part of Basic Service.
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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 any
existing Access Channel designation is changed.
9.9 Technical Quality
The Grantee shall maintain Access Channel, and return lines at least the same level of technical
quality and reliability required by this Agreement and all other applicable laws, rules and
regulations for other Channels. The Grantee shall provide routine maintenance and shall repair and
replace all transmission equipment as necessary to carry the signal as received from the County
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 Access
services or programming, Grantee shall at its own expense take necessary technical steps or provide
necessary technical assistance, including the acquisition of all necessary equipment and training of
Access personnel, to ensure that the capabilities of Access services are not diminished or adversely
affected by such change so that live and taped programming can be cablecast with as good or better
signal quality than existed prior to such change. For example, this provision shall apply if the
Cable System is converted from an analog to a digital format, such that the Access Channel must
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 about
Access programming in the installation packet provided to Subscribers. The County shall supply
the materials, for insertion in the packet, in a format consistent with Grantee's requirements.
9.12 Return Lines
Grantee shall, at its expense, construct a coax line from the demarcation point identified by County
from County's production facility at 500 Broadway to Grantee's Headend in order to enable the
distribution of Access programming to Subscribers on the Access Channel.
Within six (6) onths from the effective date hereof, Grantee shall provide pathway for the
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transmission for at least one active channel (meeting FCC standards) from 500 Broadway in order
to enable live coverage from this County building.
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 County
and the provisions of this Agreement, Grantee may perform all construction in the Rights -of -Way
for any facility needed for the maintenance, upgrade or extension of Grantee's Cable System.
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10.2 Right -of -Way Meetings
Subject r:o receiving reasonable advance notice, Grantee shall make reasonable effort to regularly
attend and participate in meetings of the County of which the Grantee is made aware, regarding
Right-of-Way issues that may impact the Cable System. Whenever it is possible and reasonably
practicable to joint trench or share bores or cuts, Grantee shall work with other providers, licensees,
permitees, and agreement holders so as to reduce so far as possible the number of Right -of -Way
cuts within the County.
10.3 General Standard
All work authorized and required hereunder shall be done in a safe, thorough and workmanlike
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, wires,
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 control
and carry Grantee's signals so as to prevent injury to Grantor's property or property belonging to any
Person. Grantee, at its own expense, shall repair, renew, change and improve its facilities to keep
them in good repair and safe and presentable condition.
(C) The Grantee's transmission and distribution system, wires and appurtenances shall
be located, erected and maintained so as not to endanger or interfere with the lives of Persons, or to
unnecessarily hinder or obstruct the free use of Rights -of -Way, alleys, bridges or other public
property.
(D) Grantee will maintain membership in good standing with the Utility Coordinating
Council One Call Center, or other similar or successor organization designated to coordinate
underground equipment locations and installations. Grantee shall abide by the Colorado State
"Underground Utilities" statutes and will further comply with and adhere to local procedures,
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, and
obtain, appropriate permits from the County. As part of the permitting process, the County may
impose such Generally Applicable conditions and regulations as are necessary for the purpose of
protecting any structures in such Rights -of -Way, proper restoration of such Rights -of -Way and
structure the protection of the public, and the continuity of pedestrian or vehicular traffic. Grantee
shall pay all Generally Applicable fees for the requisite County permits received by Grantee.
10.5 Emergency Permits
In the event that emergency repairs are necessary, Grantee shall immediately notify the County of
the need for such repairs. Grantee may initiate such emergency repairs and shall apply for
appropriate permits within 48 hours after discovery of the emergency.
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10.6 Compliance with Applicable Codes
(A) County Construction Codes. Grantee shall comply with all Generally Applicable
County construction codes, including, without limitation, the Uniform Building Code and other
building codes, the Uniform Fire Code, the Uniform Mechanical Code, and zoning codes and
regulations.
(B) Tower Specifications. Antenna supporting structures (towers) shall be designed for
the proper loading as specified by the Electronics Industries Association (EIA), as those
specifications may be 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 County
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 way
of illustration and not limitation, Grantee shall comply with the National Electric Code, National
Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards.
10.7 GIS Mapping
Grantee shall comply with any future Generally Applicable ordinances, rules and regulations of the
County regarding 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, near public property, or on or near private
property shall be done in accordance with the County Regulation For Construction in the Public
Way as may be amended from time to time and in a mariner that causes the least interference with
the rights and reasonable convenience of property owners and residents. Grantee's Cable System
shall be constructed and maintained in such manner as not to interfere with sewers, water pipes, or
any other property of the County, or with any other pipes, wires, conduits, pedestals, structures, or
other facilities that may have been laid in the Rights -of -Way by, or under, the County's authority.
The Grantee's Cable System shall be located, erected and maintained so as not to endanger or
interfere with the lives of Persons, or to unreasonably interfere with new improvements the County
may deem proper to make or to unnecessarily hinder or obstruct the free use of the Rights -of -Way
or other public property, and shall not interfere with the travel and use of public places by the public
during the construction, repair, operation or removal thereof, and shall not obstruct or impede
traffic. In the event of such unreasonable interference, the County may require the removal or
relocation of Grantee's lines, cables, equipment and other appurtenances from the property in
question at Grantee's expense.
10.9 Prevent Injury /Safety
Grantee shall provide and use any equipment and facilities necessary to control and carry Grantee's
signals so as to prevent injury to the County's property or property belonging to any Person.
Grantee, at its own expense, shall repair, renew, change and improve its facilities to keep them in
good repair, and safe and presentable condition. All excavations made by Grantee in the Rights -of-
Way shall be properly safeguarded for the prevention of accidents by the placement of adequate
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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 and
orders concerning hazardous substances relating to Grantee's Cable System in the Rights -of -Way.
03) Upon reasonable notice to Grantee, the County may inspect Grantee's facilities in
the Righr:s -of -Way to determine if any release of hazardous substances has occurred, or may occur,
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 related
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 hazardous
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 County
and to the notification association established in C.R.S. Section 9 -1.5 -105, as such maybe amended
from time to time.
Within forty-eight (48) hours after any County bureau or agreement holders, licensee or permittee
notifies Grantee of a proposed Right -of -Way excavation, Grantee shall, at Grantee's expense:
(A) Mark on the surface all of its located underground facilities within the area of the
proposed. excavation;
03) Notify the excavator of any unlocated underground facilities in the area of the
proposed excavation; or
(C) Notify the excavator that Grantee does not have any underground facilities in the
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 number
of Subscribers, Grantee shall give reasonable advance notice to private property owners or legal
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 rules
of the County or applicable State or federal law, Grantee's Cable System shall be placed
underground at Grantee's expense, subject to applicable law, unless funding is generally available
for such relocation to all users of the Rights -of -Way. Placing facilities underground does not
preclude the use of ground - mounted appurtenances.
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(B) Where electric, telephone, and other above- ground utilities are installed
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 with
other wireline service at no expense to the County or Subscribers unless funding is generally
available for such relocation to all users of the Rights -of -Way. Related Cable System equipment,
such as pedestals, must be placed in accordance with the County's applicable code requirements and
rules. In areas where either electric or telephone utility wiring is aerial, the Grantee may install
aerial cable, except when a property owner or resident requests underground installation and agrees
to bear the additional cost in excess of aerial installation. Nothing contained in this Section shall
require Grantee to construct, operate, and maintain underground any ground- mounted
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 pursuant
to a pole attachment agreement, and only in such event, then it shall be lawful for Grantee to make
all needed excavations in the Rights -of -Way for the purpose of placing, erecting, laying,
maintaining, repairing, and removing poles, supports for wires and conductors, and any other
facility needed for the maintenance or extension of Grantee's Cable System. All poles of Grantee
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 privilege
to install its facilities in any manner on specific utility poles or equipment of the County or any
other Person. Copies of agreements for the use of poles, conduits or other utility facilities must be
provided upon written request from the County.
(F) The Grantee and the County recognize that situations may occur in the future where
the County may desire to place its own cable or conduit for Fiber Optic cable in trenches or bores
opened by the Grantee. The Grantee agrees to cooperate with the County in any construction by the
Grantee that involves trenching or boring, provided that the County has first provided reasonable
notice to the Grantee in some manner that it is interested in sharing the trenches or bores in the area
where the Grantee's construction is occurring. The Grantee shall allow the County to lay its cable,
conduit and Fiber Optic cable in the Grantee's trenches and bores, provided the County shares in the
cost of the trenching and boring on the same terms and conditions as the Grantee at that time shares
the total cost of trenches and bores. The County shall be responsible for maintaining its respective
cable, conduit and Fiber Optic cable buried in the Grantee's trenches and bores under this
paragraph.
10.14 Undergrounding of Multiple Dwelling Unit Drops
In cases of single site Multiple Dwelling Units, Grantee shall minimize the number of individual
aerial drop cables by installing multiple drop cables underground between the pole and Multiple
Dwelling Unit where determined to be technologically feasible in agreement with the owners and/or
owner's association of the Multiple Dwelling Units.
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10.15 Burial Standards
(A) Depths. Unless otherwise required by law or the National Electric Code, Grantee
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 three
(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.
(3) Timeliness. Cable drops installed by Grantee to residences shall be buried
according to these standards within one calendar week of initial installation, or at a time mutually
agreed upon between the Grantee and the Subscriber. When freezing surface conditions or other
weather conditions prevent Grantee from achieving such timetable, Grantee shall apprise the
Subscriber of the circumstances and the revised schedule for burial, and shall provide the
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 the
home, consistent with applicable code requirements. All non - conforming or non - performing cable
drops shall be replaced by Grantee as necessary.
10.17 Prewiring
Any ordinance or resolution of the County which requires prewiring of subdivisions or other
developments for electrical and telephone service shall be construed to include wiring for Cable
Systems.
10.18 Repair and Restoration of Property
(A) The Grantee shall protect public and private property from damage. If damage
occurs, the Grantee shall promptly notify the property owner within twenty -four (24) hours in
writing.
(3) Whenever Grantee disturbs or damages any Right -of -Way, other public property 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) Rights -of -Way and Other Public Property. Grantee shall warrant any restoration
work performed by or for Grantee in the Right -of -Way or on other public property for two (2)
years, unless a longer period is required by any Generally Applicable ordinance or resolution of the
County. If restoration is not satisfactorily performed by the Grantee within a reasonable time, the
County may, after prior notice to the Grantee, or without notice where the disturbance or damage
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may create a risk to public health or safety, cause the repairs to be made and recover the reasonable
cost of those repairs from the Grantee. Within thirty (30) days of receipt of an itemized list of those
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 efforts
to complete the restoration within seventy -two (72) hours, considering the nature of the work that
must be performed.
(E) Grantee shall at all times conform to the repair and restoration standards as set forth
for construction in the County regulations within the Rights -of -Way as amended from time to time.
10.19 Common Users
(A) For the purposes of this subsection:
(1) "Attachment" means any wire, optical fiber or other cable, and any related
device, apparatus or auxiliary equipment, for the purpose of voice, video or data transmission.
(2) "Conduit" or "Conduit Facility" means any structure, or section thereof,
containing one or more Ducts, conduits, manholes, handhole or other such facilities in Grantee's
Cable System.
(3) "Duct" means a single enclosed raceway for cables, Fiber Optics or other
wires.
(4) "Licensee" means any Person licensed or otherwise permitted by the County
to use the Rights -of -Way.
(5) "Surplus Ducts or Conduits" are Conduit Facilities other than those occupied
by Grantee or any prior Licensee, or unoccupied Ducts held by Grantee as emergency use spares, or
other unoccupied Ducts that Grantee reasonably expects to use within two (2) years from the date of
a request for use.
(B) Grantee acknowledges that the Rights -of -Way have a finite capacity for containing
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 time
have authority to construct or maintain Conduits or Ducts in the Rights -of -Way, but excluding
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 Grantee,
pursuant to the terms and conditions of an agreement for use of Surplus Ducts or Conduits entered
into by Grantee and the Licensee. Nothing herein shall require Grantee to enter into an agreement
with such Person if, in Grantee's reasonable determination, such an agreement could compromise
the integrity of the Cable System.
(C) A Licensee occupying part of a Duct shall be deemed to occupy the entire Duct.
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(D) Grantee shall give a Licensee a minimum of one hundred twenty (120) days notice
of its need to occupy a licensed Conduit and shall propose that the Licensee take the first feasible
action as follows:
(1) Pay revised Conduit rent designed to recover the cost of retrofitting the
Conduit with multiplexing, Fiber Optics or other space- saving technology sufficient to meet
Grantee's space needs;
(2) Pay revised Conduit rent based on the cost of new Conduit constructed to
meet Grantee's space needs;
(3) Vacate the needed Ducts or Conduit; or
(4) Construct and maintain sufficient new Conduit to meet Grantee's space
needs.
(E) When two or more Licensees occupy a section of Conduit Facility, the last Licensee
to occupy the Conduit Facility shall be the first to vacate or construct new Conduit. When Conduit
rent is revised because of retrofitting, space - saving technology or construction of new Conduit, all
Licensees shall bear the increased cost.
(F) All Attachments shall meet local, State, and federal clearance and other safety
requirements, be adequately grounded and anchored, and meet the provisions of contracts executed
between Grantee and the Licensee. Grantee may, at its option, correct any attachment deficiencies
and charge the Licensee for its costs. Each Licensee shall pay Grantee for any fines, fees, damages
or other oosts the Licensee's attachments cause Grantee to incur.
(G) In order to enforce the provisions of this subsection with respect to Grantee, the
County must demonstrate that it has required that all similarly situated users of the Rights -of -Way
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 the
County of any area in which Grantee owns or operates any facility, Grantee shall, at the County's
request, iubmit to the County a statement describing all facilities involved, whether authorized by
agreement, permit, license or other prior right, and specifying the location of all such facilities to
the exter..t Grantee has possession of such information. Such facilities shall immediately be subject
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 shall
submit for the County a complete description of the facility and the date on which Grantee intends
to discontinue using the facility. Grantee may remove the facility or request that the County permit
it to remain in place. Notwithstanding Grantee's request that any such facility remain in place, the
County raay require Grantee to remove the facility from the Right -of -Way or modify the facility to
protect the public health, welfare, safety, and convenience, or otherwise serve the public interest.
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The County may require Grantee to perform a reasonable combination of modification and removal
of the facility. Grantee shall complete such removal or modification in accordance with a schedule
set by the County. Until such time as Grantee removes or modifies the facility as reasonably
directed by the County, or until the rights to and responsibility for the facility are accepted by
another Person having authority to use, construct and/or maintain such facility, Grantee shall retain
all liability for such facility and be responsible for all necessary repairs and relocations of the
facility, as well as maintenance of the Right -of -Way, in the same manner and degree as if the
facility were in active use. If Grantee abandons its facilities, the County may choose to use such
facilities without charge for any purpose whatsoever including, but not limited to, Access purposes.
If the County chooses to utilize any such abandoned facilities, Grantee's liability for those facilities
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 or
disconnect Grantee's facilities and equipment located in the Rights -of -Way or on any other property
of the County in the event of an emergency or when reasonable public convenience requires such
change (for example, without limitation, by reason of traffic conditions, Right -of -Way widening or
altering, public safety, Right -of -Way vacation, Right -of -Way construction, change or establishment
of Right -of -Way grade, installation of sewers, drains, gas or water pipes, or any other types of
structures or improvements by the County for public purposes). Unless otherwise provided by state
or federal law such work shall be performed at the Grantee's expense. Except during an emergency,
the County shall provide reasonable notice to Grantee, not to be less than five (5) business days, and
allow Grantee with the opportunity to perform such action. In the event of any capital improvement
project exceeding $200,000 in expenditures by the County that requires the removal, replacement,
modification or disconnection of Grantee's facilities or equipment, the County shall provide at least
sixty (60) days' written notice to Grantee. Following notice by the County, Grantee shall relocate,
remove, replace, modify or disconnect any of its facilities or equipment within any Right -of -Way,
or on any other property of the County. If the County requires Grantee to relocate its facilities
located within the Rights -of -Way, the County shall make a reasonable effort to provide Grantee
with an alternate location within the Rights -of -Way. If funds are generally made available to users
of the Rights -of -Way for such relocation, Grantee shall be entitled to its pro rata share of such
funds.
If the Grantee fails to complete this work within the time prescribed and to the County's reasonable
satisfaction, upon written notice to the Grantee and a reasonable opportunity to cure, the County
may cause such work to be done and bill the reasonable cost of the work to the Grantee, including
all reasonable costs and expenses incurred by the County due to Grantee's delay. In such event, the
County shall not be liable for any damage to any portion of Grantee's Cable System unless the
County acted in a negligent manner. Within thirty (30) days of receipt of an itemized list of those
costs, the Grantee shall pay the County. Nothing herein shall be construed to waive rights, if any,
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 County
agreement holder, Grantee shall, after at least thirty (30) days' advance written notice, take action to
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effect the necessary changes requested by the responsible entity. Grantee may require that the costs
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 permit and upon reasonable advance notice, Grantee
shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building,
vehicle, equipment or other item. The expense of such temporary changes must be paid by the
permit holder, and Grantee may require a reasonable deposit of the estimated payment in advance.
10.25 Reservation of County Use of Right - of - Way
Nothing in this Agreement shall prevent the County or public utilities owned, maintained or
operated by public entities other than the County from constructing sewers; grading, paving,
repairing or altering any Right -of -Way; laying down, repairing or removing water mains; or
constructing or establishing any other public work or improvement. All such work shall be done,
insofar as practicable, so as not to obstruct, injure or prevent the use and operation of Grantee's
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 of
this Agreement, unless Grantor specifically reserves to Grantee the right to continue the use of
vacated Rights -of -Way, Grantee shall, within thirty (30) days written notice from Grantor to
Grantee and subject to the provisions of applicable law without expense to Grantor, remove its
facilities (unless utilities have been permitted to leave their facilities in place) from such Rights -of-
Way, and restore, repair or reconstruct the Rights -of -Way where such removal has occurred. In the
event of failure, neglect or refusal of Grantee, after thirty (30) days' notice by Grantor, to restore,
repair or reconstruct such Rights -of -Way, Grantor may do such work or cause it to be done, and the
reasonable cost thereof, as found and declared by Grantor, shall be paid by Grantee within thirty
(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 County's
Rights-of-Way which interferes with Grantee's Cable System. Grantee shall comply with any
general ordinance or regulations of the County regarding tree trimming. Except in emergencies,
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 -of-
Way in or over which the tree is growing. The owner or occupant of the abutting premises may
prune such tree at his or her own expense during this one (1) week period. If the owner or occupant
fails to do so, Grantee may prune such tree at its own expense. For purposes of this subsection,
emergencies exist when it is necessary to prune to protect the public or Grantee's facilities from
imminenr danger only.
10.28 Inspection of Construction and Facilities
The County may inspect any of Grantee's facilities, equipment or construction at any time upon at
least twenty -four (24) hours notice, or, in case of emergency as determined by the County, upon
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 the
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necessary repairs and alterations specified therein forthwith to correct the unsafe condition by a
time the County establishes. The County has the right to correct, inspect, administer and repair the
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 effect.
Grantee shall arrange its lines, cables and other appurtenances, on public property, in such a manner
as to cause no unreasonable interference with the use of said public property by any Person. In the
event of such interference and consistent with the other provisions of this Agreement, Grantor may
require the removal or relocation of Grantee's lines, cables and other appurtenances from the
property in question.
10.30 Stop Work
(A) On notice from the County that any work is being performed contrary to the provisions of
this Agreement, or in an unsafe or dangerous manner as reasonably determined by the County, or in
violation of the terms of any Generally Applicable permit, laws, regulations, 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;
(4) Indicate the nature of the alleged violation or unsafe condition; and
(5) Establish conditions under which work may be resumed.
10.31 Standards
(A) All work authorized and required hereunder shall be done in a safe, thorough and
workmanlike manner. The Grantee must comply with all federal, State and local safety
requirements, rules, regulations, laws and practices, and employ all necessary devices as required by
applicable law during construction, operation and repair of its System. By way of illustration and
not limitation, the Grantee must comply with the National Electric Code, National Electrical Safety
Code and Occupational Safety and Health Administration (OSHA) Standards.
(B) Grantee shall ensure that all cable drops are properly bonded and grounded at the
home, consistent with applicable code requirements. All non - conforming or non - performing cable
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 federal,
State and local regulations, ordinances and laws so as not to interfere in any manner with the right
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of the public or individual property owner, and shall not interfere with the travel and use of public
places by the public during the construction, repair, operation or removal thereof, and shall not
obstruct or impede traffic.
(D) In the maintenance and operation of its System in Rights -of -Way and other public
places, and in the course of any new construction or addition to its facilities, the Grantee shall
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 its
operations shall be guarded and protected at all times by the placement of adequate barriers, fences
or boarding, the bounds of which, during periods of dusk and darkness, shall be clearly marked.
10.32 Work of Contractors and Subcontractors
Work by contractors and subcontractors is subject to the same restrictions, limitations and
conditions as if the work 'were performed by Grantee. Grantee shall be responsible for all work
performe 3 by its contractors and subcontractors and others performing work on its behalf as if the
work were performed by it, and shall ensure that all such work is performed in compliance with this
Agreement and other applicable law, and shall be jointly and severally liable for all damages and
correcting all damage caused by them. It is Grantee's responsibility to ensure that contractors,
subcontractors or other Persons performing work on Grantee's behalf are familiar with the
requirements of this Agreement and other applicable laws governing the work performed by them.
SECTION 11. CABLE SYSTEM CONFIGURATION, TECHNICAL STANDARDS AND
TESTING
11.1 Subscriber Network
(A) Grantee's Cable System shall be two -way capable and provide bandwidth to at least
450 MHz in part of the Cable System and 750 MHz in part of the Cable System. The Cable System
shall be capable of delivering one hundred ten (110) Channels of analog and/or digital
programming services to Subscribers, provided that the Grantee reserves the right to use the
bandwidth in the future for other uses based on market factors.
(13) Grantee shall retransmit all closed captioning programming received by the Cable
System so long as the closed caption signal is provided consistent with FCC standards. All local
signals received in stereo or with secondary audio tracks (broadcast and Access) shall be
retransmitted in those same formats.
(C) All construction shall be subject to the County's permitting process.
(I)) Grantee shall take prompt corrective action if it finds that any facilities or equipment
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 and
engineering decisions and shall not take into consideration the income level of any particular
community within the Agreement Area.
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11.2 County Needs
The County shall not be restricted from holding any hearing at any time to review whether or not
the Cable System and the Cable Services offered by the Grantee are meeting demonstrated
community needs. The parties recognize that, as of the Effective Date, the County is not permitted
to require the provision of specific video programming pursuant to this subsection but is permitted
to enforce the provision of broad categories of programming as set forth in Section 8.
11.3 Standby Power
Upon completion of the upgrade, Grantee shall maintain standby power system supplies, rated for at
least two (2) hours duration, throughout the trunk and distribution networks.
11.4 Emergency Alert Capability
Grantee shall provide the County an operating Emergency Alert System ( "EAS ") in accordance
with and as required by the provisions of FCC Regulation Part II, and as such provision may from
time to time be amended. Grantee shall test the EAS as required by the FCC. Upon request, the
County shall be permitted to participate in and/or witness the EAS testing. If the test indicates that
the EAS is not performing consistent with FCC requirements, Grantee shall make any necessary
adjustment to the EAS, and the EAS shall be retested.
11.5 Technical Performance
The technical performance of the Cable System shall meet or exceed all applicable technical
standards, as they may be amended from time to time, regardless of the transmission technology
utilized. The County shall have the full authority permitted by applicable law to enforce
compliance with these technical standards.
11.6 Cable System Performance Testing
(A) Grantee shall, at Grantee's expense, perform the following tests on its Cable System:
(1) All tests required by the FCC;
(2) All other tests reasonably necessary to determine compliance with technical
standards adopted by the FCC at any time 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 conformance
with generally accepted industry guidelines;
(3) Tests in response to Subscriber complaints;
(4) Periodic monitoring tests, at intervals not to exceed six (6) months, of
Subscriber (field) test points, the Headend, and the condition of standby power supplies; and
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(5) Cumulative leakage index tests, at least annually, designed to ensure that one
hundred percent (100 %) of Grantee's Cable System has been ground or air tested for signal leakage
in accordance with FCC standards.
(C) Grantee shall maintain written records of all results of its Cable System tests,
performed by or for Grantee, in accordance with applicable law. Copies of such test results will be
provided to the County upon written request.
(I)) If the FCC no longer requires proof of performance tests for Grantee's Cable System
during the term of this Agreement, Grantee agrees that it shall continue to conduct proof of
performance tests on the Cable System in accordance with the standards that were in place on the
Effective Date, or any Generally Applicable standards later adopted, at least once a year, and
provide written results of such tests to the County upon written request.
(E) If County notifies Grantee that it wishes to have a representative present during its
semi - annual testing of the Cable System, Grantee shall cooperate in scheduling its testing so that
the repre3entative can be present. Notwithstanding the above, all technical performance tests may
be witnessed by representatives of the County.
(F) Grantee shall be required to promptly take such corrective measures as are necessary
to correct any performance deficiencies fully and to prevent their recurrence as far as possible.
Grantee's failure to correct deficiencies identified through this testing process shall be a material
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 the
reliability or technical quality of Cable Service, the County shall have the right and authority to
require Grantee to test, analyze and report on the performance of the Cable System. Grantee shall
reasonab:l.y cooperate with the County in performing such testing and shall prepare the results and a
report, if requested, within thirty (30) days after testing. Such report shall include the following
information:
(A) The nature of the complaint or problem which precipitated the special tests;
(13) The Cable System component tested;
(C) The equipment used and procedures employed in testing;
(I)) 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.
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SECTION 12. SERVICE AVAILABILITY AND SERVICE TO SCHOOLS AND PUBLIC
BUILDINGS
12.1 Universal Service
Grantee shall not arbitrarily refuse to provide Cable Services to any Person within its Agreement
Area. Subject to Section 12.2 all Dwelling Units, Multiple Dwelling Units and commercial
establishments in the Agreement Area shall have the same availability of Cable Services from
Grantee's Cable System under non - discriminatory rates, subject to Section 4.3, and reasonable
terms and conditions. The County acknowledges that the Grantee cannot control the dissemination
of particular Cable Services beyond the point of demarcation at a Multiple Dwelling Unit.
Notwithstanding the foregoing, Grantee may introduce new or expanded Cable Services on a
geographically phased basis, where such services require an upgrade of the Cable System. Grantee
may also charge for line extensions and non - Standard Installations pursuant to subsection 12.2.
12.2 Service Availability
(A) In General. Except as otherwise provided herein, Grantee shall provide Cable
Service within seven (7) days of a request by any Person within the County. For purposes of this
subsection, a request shall be deemed made on the date of signing a service agreement, receipt of
funds by Grantee, receipt of a written request by Grantee or receipt by Grantee of a verified verbal
request. Grantee shall provide such service:
(1) At a non - discriminatory installation charge for a Standard Installation,
consisting of a one hundred twenty -five (125) foot drop connecting to an inside wall for Residential
Subscribers, with additional charges for non - standard installations computed according to a non-
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 units of
a Multiple Dwelling Unit all Cable Services offered to other Dwelling Units in the County and shall
individually wire units upon request of the property owner or renter who has been given written
authorization by the owner; provided, however, that any such offering is conditioned upon the
Grantee having legal access to said unit and provided that the Dwelling Unit can be accessed for
wiring without the need to pass through any other Dwelling Unit. The County acknowledges that
the Grantee cannot control the dissemination of particular 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 in a
contiguous unserved area where there are at least forty five (45) Dwelling Units within 5280 cable -
bearing strand feet (one cable mile) from the portion of the Grantee's trunk or distribution cable
which is to be extended, it shall extend its Cable System to such customer at no cost to said
customer for the Cable System extension, other than the published standard installation fees
charged to all customers.
(D) Customer Charges for Extensions of Service. No customer shall be refused service
arbitrarily. However, for unusual circumstances, such as a customer's request to locate the cable
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drop uncerground, the existence of more than one hundred twenty -five (125) feet of distance from
distribution cable to connection of service to customers, or a request from a customer in an area
which does not meet the density requirement of subsection (C) above, service may be made
available on the basis of a capital contribution in aid of construction, including cost of material,
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 mile,
multiplied by a fraction whose numerator equals the actual number of residences per 5280 cable -
bearing strand feet of its trunk or distribution cable and whose denominator equals forty five (45).
Customers who request service hereunder will bear the remainder of the construction and other
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 permit
Subscribers to make any lawful in- residence connections the Subscriber chooses without additional
charge 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 this
Agreement or has failed to perform in a timely manner, the County shall notify Grantee in writing,
stating with reasonable specificity the nature of the alleged default. Grantee shall have thirty (30)
days from the receipt of such notice to:
(1) respond to the County, contesting the County's assertion that a default has
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 (30)
days, because of the nature of the default. In the event the default cannot be cured within thirty (30)
days, Grantee shall promptly take all reasonable steps to cure the default and notify the County 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 determine
whether additional time beyond the thirty (30) days specified above is indeed needed, and whether
Grantee's proposed completion schedule and steps are reasonable.
(3) 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 requests a
meeting in accordance with (A)(1), or the County orders a meeting in accordance with subsection
(A)(3), the County shall set a meeting to investigate said issues or the existence of the alleged
default. The County shall notify Grantee of the meeting in writing and such meeting shall take
place no less than thirty (30) days after Grantee's receipt of notice of the meeting. At the meeting,
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 heard,
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order Grantee to correct or remedy the default or breach within fifteen (15) days or within such
other reasonable time frame as the County shall determine. In the event Grantee does not cure
within such time to the County's reasonable satisfaction, the County may order Grantee to correct or
remedy the violation within a reasonable timeframe as Grantor shall determine and if Grantee fails
to do so with timeframes provided herein, Grantor may (a) pursue any legal or equitable remedy
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 the
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, the
County may revoke this Agreement and rescind all rights and privileges associated with this
Agreement in the following circumstances, each of which represents a material breach of this
Agreement:
(1) If Grantee fails to perform any material obligation under this Agreement.
(2) If Grantee willfully fails for more than forty-eight (48) consecutive hours to
provide continuous and uninterrupted Cable Service;
(3) If Grantee attempts to evade any material provision of this Agreement or 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 benefit of
Grantee's creditors;
(5) If Grantee makes a material misrepresentation of fact in the application for
or negotiation of this Agreement.
(6) Grantee abandons the System, or terminates the System's operations;
(B) Following the procedures set forth in this Agreement, and prior to forfeiture or
termination of the Agreement, the County shall give written notice to the Grantee of its intent to
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 County
Commissioners or its designee and open to the public. Grantee shall be afforded at least sixty (60)
days prior written notice of such proceeding.
(1) At such proceeding, Grantee shall be provided a fair opportunity for full
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 such
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proceeding and the cost shall be shared equally between the parties. The County Commissioners or
its designee shall hear any Persons interested in the revocation, and shall allow Grantee, in
particular, an opportunity to state its position on the matter.
(2) Within ninety (90) days after the hearing, the County Commissioners shall
determine whether to revoke the Agreement and declare that the Agreement is revoked; or if the
reach at issue is capable of being cured by Grantee, direct Grantee to take appropriate remedial
action within the time and in the manner and on the terms and conditions that the County
Commissioners or its designee determines are reasonable under the circumstances. If the County
determines that the Agreement is to be revoked, the County shall set forth the reasons for such a
decision and shall transmit a copy of the decision to the Grantee. Grantee shall be bound by the
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.
(4) The County Commissioners may at its sole discretion take any lawful action
which it deems appropriate to enforce the County's rights under the Agreement in lieu of revocation
of the Ageement.
13.3 Procedures in the Event of Termination or Revocation
(A) If this Agreement expires without renewal and is not extended or is otherwise
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 basis
or short-term extension of this Agreement for not less than six (6) months, unless a sale of the
Cable System can be closed sooner or Grantee demonstrates to the County's satisfaction that it
needs additional time to complete the sale. Grantee's continued operation of the Cable System
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
(13) 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 such
underground facilities from the County at Grantee's sole expense within a reasonable period of time
as determined by the County. In removing its plant, structures and equipment, Grantee shall refill,
at its own expense, any excavation that is made by it and shall leave all Rights -of -Way, public
places and private property in as good condition as that prevailing prior to Grantee's removal of its
equipment without affecting the electrical or telephone cable wires or attachments. The
indemnification and insurance provisions and the collateral shall remain in full force and effect
during the period of removal.
(0) If Grantee fails to complete any removal required by this Agreement to the County's
reasonable satisfaction, after written notice to Grantee, the County may cause the work to be done
and Grantee shall reimburse the County for the reasonable costs incurred within thirty (30) days
after receipt of an itemized list of the costs, or if not paid within thirty (30) days the County may
recover the costs through the collateral provided by Grantee.
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(D) The County may seek legal and equitable relief to enforce the provisions of this
Agreement.
13.4 Receivership and Foreclosure
(A) At the option of the County, subject to applicable law, this Agreement may be
revoked one hundred twenty (120) days after the appointment of a receiver or trustee to take over
and conduct the business of Grantee whether in a receivership, reorganization, bankruptcy or other
action or proceeding, unless:
(1) The receivership or trusteeship is vacated within one hundred twenty (120)
days of appointment; or
(2) The receivers or trustees have, within one hundred twenty (120) days after
their election or appointment, fully complied with all the terms and provisions of this Agreement,
and have remedied all defaults under the Agreement. Additionally, the receivers or trustees shall
have executed an agreement duly approved by the court having jurisdiction, by which the receivers
or trustees assume and agree to be bound by each and every term, provision and limitation of this
Agreement.
(B) If there is a foreclosure or other involuntary sale of the whole or any part of the
plant, property and equipment of Grantee, the County may serve notice of revocation on Grantee
and to the purchaser at the sale, and the rights and privileges of Grantee under this Agreement shall
be revoked thirty (30) days after service of such notice, unless:
(1) The County has approved the transfer of the Agreement, in accordance with
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 be
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, boards,
commissions and employees for any loss, costs, expenses or damages arising out of any provision
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, State
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 obtain
judicial relief from a violation of any provision of the Agreement or any rule, regulation,
requirement or directive promulgated thereunder. Neither the existence of other remedies identified
in this Agreement nor the exercise thereof shall be deemed to bar or otherwise limit the right of the
County to recover monetary damages for such violations by Grantee, or to seek and obtain judicial
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enforcement of Grantee's obligations by means of specific performance, injunctive relief or
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 following
Agreement violations of up to $100.00 per day for failure to provide the services and payments
required by this Agreement including but not limited to the implementation and utilization of the
PEG Access Channel; for failure to comply with construction, operation or maintenance standards;
for failure to provide data, documents, reports required herein; and up to $100.00 per day for failure
to comply with Customer Service Standards. To assess any amount of damages, the County shall
follow the procedures for withdrawals from the security set forth in this Agreement. Such damages
shall not accrue until beginning seventy five (75) days following Grantee's receipt of notice
required by subsection 13.1(A) or at such later date if approved by the County in its sole discretion,
but may not be assessed until after the procedures in subsection 13.1 have been completed.
(13) The assessment of liquidated damages does not constitute a waiver by County of
any other right or remedy it may have under the Agreement or applicable law, including its right to
recover : 'km Grantee any additional damages, losses, costs and expenses that are incurred by
County by reason of the breach of this Agreement.
(C) The County and Grantee agree that the maximum length of time upon which
monetary damages set forth in this Section 13.7 may be imposed is ninety (90) days.
SECTION 14. AGREEMENT RENEWAL AND TRANSFER
14.1 Renewal
(A) The County and Grantee agree that any proceedings undertaken by the County that
relate to the renewal of the Agreement shall be governed by and comply with the provisions of
Section E26 of the Cable Act, unless the procedures and substantive protections set forth therein
shall be deemed to be preempted and/or superseded by the provisions of any subsequent provision
of federal or State law.
(13) 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 cable -
related community needs and interests, as well as the past performance of Grantee under the then
current Agreement term. Notwithstanding anything to the contrary set forth herein, Grantee and
County agree that at any time during the term of the then current Agreement, while affording the
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 the
County may grant a renewal thereof. Grantee and County consider the terms set forth in this
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 shall
not be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by
involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto, either legal or
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equitable, or any right, or interest or property therein pass to or vest in any Person or entity other
than to an Affiliate controlling, controlled by or under common control with the Grantee without
the prior written consent of the County, which consent shall be by the County Commissioners,
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 review
and require consent pursuant to this Section. No such consent shall be required for a transfer in
trust by mortgage or by other hypothecation or by assignment of any rights, title or interest of the
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, which
shall include a completed FCC Form 394 and all required exhibits, the County shall notify the
Grantee in writing of any additional information it reasonably requires to determine the legal,
financial and technical qualifications of the transferee or assignee and any information related to the
resolution of outstanding and unresolved issues of noncompliance with the terms and conditions of
this Agreement by Grantee. If the County has not taken action on the Grantee's completed request
for transfer, sale or assignment within one hundred twenty (120) days after receiving such request,
consent by the County shall be deemed given.
(C) Within thirty (30) days of any transfer, assignment, sale or, or change in control if
approved or deemed granted by the County, transferee or assignee shall file with the County a copy
of the deed, agreement, lease or other written instrument evidencing such sale, transfer, assignment,
lease or change in ownership or control, certified and sworn to as correct by transferee or assignee.
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 another
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 in any
other Cable System in the Agreement Area, this Agreement shall survive as to the Agreement Area
and the Cable System which is currently the subject of this Agreement shall continue to be 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 be
illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such
determination shall have no effect on the validity of any other Section, subsection, paragraph, term
or provision of this Agreement, all of which will remain in full force and effect for the term of the
Agreement.
SECTION 16. MISCELLANEOUS PROVISIONS
16.1 Preferential or Discriminatory Practices Prohibited.
In connection with the performance of work under this Agreement, the Grantee agrees not to refuse
to hire, discharge, promote or demote, or discriminate in matters of compensation against any
Person otherwise qualified, solely because of race, color, religion, national origin, gender, age,
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downs, rower outages exceeding back -up power supplies or work delays caused by waiting for
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 the
County or Grantee, as the case may be) shall be entitled to recover all of its reasonable attorneys'
fees, costs and expenses in connection therewith, in addition to such other relief as the court may
deem prc per.
IN WITNESS WHEREOF, this Agreement is signed as of this 30th day of March, 2004.
ATTEST: .1 � +cLe co AGLE COUNTY, COLORADO
i mo d, + 9
01 ty Clerk � Chairman, Board of County Commissioners
APPROVED AS TO FORM:
County Attorney
ATTEST: CENTURYTEL TELEVIDEO, INC.
./4 -N' By:
Title: l JV p
STAGE
49
REINSTATEMENT AND AMENDMENT OF CABLE TELEVISION AGREEMENT
THIS REINSTATEMENT AND AMENDMENT OF CABLE TELEVISION AGREEMENT is
entered into by and between Eagle County, Colorado (hereinafter called the "County") and
CenturyTel Televideo, Inc.(hereinafter referred to as "Century Link ") as of the 3rd day of
February, 2012.
WITNESSETH:
WHEREAS, the Eagle County, Colorado Cable Television Agreement with CenturyTel
Televideo, Inc. was entered into between the County and CenturyTel Televideo, Inc. and was
effective as of March 30, 2004 (hereinafter referred to as the "Agreement ");
WHEREAS, this Agreement expired on March 29, 2011 and the County and CenturyLink wish
to reinstate that Agreement effective March 29, 2011 and extend the expiration date until
December 31, 2012;
WHEREAS, a copy of that Agreement is attached hereto and made part hereof as Exhibit "A ";
WHEREAS, CenturyLink holds this Agreement to own and operate a cable system within the
County; and
WHEREAS, the County and CenturyLink have continued to abide by the provisions of the
Agreement and each desire to reinstate that Agreement and extend the term of the Agreement as
set forth herein,
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the County and CenturyLink agree as follows:
1) Except as otherwise provided herein regarding the expiration date of the Agreement,
the Agreement is hereby reinstated effective March 29, 2011 with the expiration date
of the Agreement now extended until December 31, 2012, subject to the same terms
and conditions contained in the Agreement which shall be in full force and effect; and
2) The County and CenturyLink recognize that the Towns of Gypsum and Eagle are
discussing an upgrade of the cable television systems with CenturyLink. With this in
mind and to maintain flexibility, the County and CenturyLink agree to negotiate in
good faith between the period of January 1, 2012 and December 31, 2012 to address
amendments and a further extension of the Agreement on terms and conditions
mutually acceptable to both the County and CenturyLink.
IN WITNESS WHEREOF, the parties hereto have caused this Reinstatement and Amendment of
Cable Television Agreement to be executed for the uses and purposes herein expressed on the
day and year first written above.
E IBIT
1 b
D
a
9
ATTEST: EAGLE COUNTY, COLORADO
B
ounty Clerk :.• .. •.
s 414 411 c
APPROVED AS TO FORM:
ounty A o ey —
CENTURYTEL TELEVIDEO, INC.
AT yST:
'-
Title: bite t2'PD2 — i/ e /4ff—firlt5
to en Davis
Title: Senior Vice President - Public Policy
and Government Relations
2
EXTENSION OF REINSTATED AND AMENDED
CABLE TELEVISION AGREEMENT
THIS EXTENSION OF the REINSTATED AND AMENDED CABLE TELEVISION
AGREEMENT is entered into by and between Eagle County, Colorado (hereinafter called the
"County") and Century Tel Televideo, Inc. (hereinafter referred to as "Century Link") as of the
1 th day of December, 2012.
WITNESSETH:
WHEREAS, the Eagle County, Colorado Cable Television Agreement with CenturyTel
Televideo, Inc. was entered into between the County and CenturyTel Televideo, Inc. and was
effective as of March 30, 2004 (hereinafter referred to as the "Agreement");
WHEREAS, this Agreement expired on March 29, 2011 and the County and CenturyLink
reinstated that Agreement effective March 29, 2011 and extended the expiration date until
December 31, 2012;
WHEREAS, the County and CenturyLink now wish to further extend the expiration date from
December 31, 2012 until March 1, 2013;
WHEREAS, a copy of the Agreement and the Reinstatement and Amendment Agreement are
attached hereto and made part hereof as Exhibit "A" and Exhibit "B" and they are hereinafter
collectively referred to as the "Amended Agreement";
WHEREAS, CenturyLink holds this Amended Agreement to own and operate a cable system
within the County; and
WHEREAS, the County and CenturyLink have continued to abide by the provisions of the
Amended Agreement and each desire to extend the Amended Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the County and CenturyLink agree as follows:
1) Except as otherwise provided herein regarding the expiration date of the Amended
Agreement, the Amended Agreement is now extended until March 1, 2013, subject to
the same terms and conditions contained in the Amended Agreement which shall be
in full force and effect; and
2) The County and CenturyLink recognize that the Towns of Gypsum and Eagle are
discussing an upgrade of the cable television systems with CenturyLink. With this in
mind and to maintain flexibility, the County and CenturyLink agree to negotiate in
good faith between the period of December 31, 2012 and March 1, 2013 to address
amendments and a further extension of the Amended Agreement on terms and
conditions mutually acceptable to both the County and CenturyLink.
1 LLUHIBIT
IN WITNESS WHEREOF, the parties hereto have caused this Extension of Amended
Agreement to be executed for the uses and purposes herein expressed on the day and year first
written above.
ATTEST: EAGLE COUNTY, COLORADO
vs.GLE
6 IN ti
By
County Clerk ( `ot ga ,p:e Chairman, Board of County Comm loners
1
Pd.\i6 TO FORM:
A...LA.114
unty Attompy
CENTURYTEL TELEVIDEO, INC.
ATTEST:
4 .
Title: 60,e., ilitier2i—; A554.
R. Steven Davis
Title: EVP-Public Policy &
Government Relations
2