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HomeMy WebLinkAboutC13-390 CenturyTel Broadband Services, LLC Cable Television AgreementCABLE TELEVISION AGREEMENT This Cable Television Agreement is entered into in Eagle County, Colorado, this 31St day of December, 2013, by and between Eagle County, Colorado a body corporate and politic, hereinafter ("Grantor" or the "County") and CenturyTel Broadband Services, LLC d/b/a CenturyLink hereinafter ("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 and its citizens, has considered the financial, technical and legal qualifications of Grantee, and has determined that Grantee's plans for constructing, operating and maintaining its System are adequate, in a 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 cable service, high technical capability and reliability of Systems in its jurisdiction, the availability of local programming (including Educational and 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, 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; and WHEREAS,pursuant to C.R.S. 30-11-101, et. seq. and in accordance with the Cable Act, the County has the authority to grant such renewal of the existing agreement. 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: SECTION 1.DEFINITIONS For the purposes of this Agreement, the following terms, phrases, words and their derivations shall have the meanings 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" or "Access Programming" includes Educational Access and Governmental Access, collectively, and means the availability for Noncommercial use by various governmental and educational agencies, institutions and organizations, in the community, including Grantor and its designees, of particular channels on the System to receive and distribute Video Programming to Subscribers, as permitted under applicable law, including, but not limited to: A) "Educational Access" means Access where Schools are the primary users having editorial control over programming and services. B) "Governmental Access" means Access where governmental institutions or their designees are the primary users having editorial control over programming and services. C) "Public Access" means Access where the public is the primary user having editorial control over programming and services. Access Channel"means any Channel, or portion thereof, designated for Noncommercial Access purposes or otherwise made available to facilitate or transmit Access Programming. Access Fees" means the Replacement Capital Contributions, also known as PEG Contributions paid to the Grantor by the Grantee in accordance with Section 3.2. Activation" or "Activated" means the status of any capacity on or part of the System wherein the use of that capacity or part thereof may be made available without further installation of System equipment other than Subscriber premise equipment,whether hardware or software. Affiliated Entity" or "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" means the document in which this definition appears, that is executed between Grantor and Grantee, containing the specific provisions of the authorization granted and the contractual and regulatory agreement created hereby. 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 unincorporated areas annexed in the County during the term of this Agreement. Agreement Fee" includes any tax, fee or assessment of any kind imposed by the Grantor on the Grantee or Subscribers, or both solely because of their status as such. The term Agreement Fee does not include: A) Any tax, fee or assessment of general applicability(including any such tax, fee, or assessment on both utilities and Cable Operators or their services, but not including a tax, fee, or assessment that is unduly discriminatory against Cable Operators or cable Subscribers); B) Capital costs that are required by the Agreement to be incurred by the Grantee for Educational or Governmental Access facilities, including the support required in Section 3.2. 2 C) Requirements or charges incidental to the awarding or enforcing of the Agreement, including but not limited to, payments for bonds, letters of credit, insurance, indemnification,penalties or liquidated damages; or D) Any fee imposed under Title 17, United States Code. Bad Debt"means amounts lawfully owed by a Subscriber and accrued as revenues on the books of Grantee,but not collected after reasonable efforts by Grantee. Basic Service"means any Cable Service Tier that includes, at a minimum,the retransmission of local television Broadcast Signals and Access programming. Broadcast Signal" means a television or radio signal transmitted over the air to a wide geographic audience, and received by a System off-the-air 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 Operator" means any Person or group of Persons, including Grantee, who provides Cable Service over the System 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, that is required for the selection or use of such Video Programming or other programming service. Channel" means a portion of the frequency band capable of carrying a Video Programming Service or combination of Video Programming Services, whether by analog or digital signal, on a twenty-four(24)hour per day basis or a portion thereof. County"or"Grantor" is Eagle County, Colorado a body p olitic 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. County Code" means Eagle County Land Use Regulations, as amended from time to time and regulations adopted by resolutions or ordinances. County Commissioners" means the Board of County Commissioners of Eagle County, or its successor,the governing body of Eagle County, Colorado. 3 Designated Access Provider" means the entity or entities designated by the Grantor to manage or co-manage Educational or Governmental Access Channels and facilities. The Grantor may be a Designated Access Provider. Downstream Channel" means a Channel capable of carrying a transmission from the Headend to remote points on the System or to Interconnection points on the 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. Expanded Basic Service" means cable programming services not included in the Basic Service and excluding premium or pay-per-view services. FCC"means the Federal Communications Commission or its lawful successor. Fiber Optic" means a transmission medium of optical fiber cable capable of carrying Cable Service by means of electric light wave pulses. Generally Applicable" means when referenced to resolutions, ordinances, laws or regulations, legal obligations that are applied generally and not solely limited to Grantee. This includes but is not limited to Eagle County Land Use Regulations as now existing or hereafter amended (all hereinafter collectively "ECLUR") and Federal and State Laws that apply to Grantee's operations in the County under the Agreement. Government Access Video-on-Demand System" or "GAVOD System" means the hardware, software, and all related connections and support systems necessary to offer GAVOD Service to Subscribers and to receive, store, catalog, search and transmit PEG programming via GAVOD Service. Grantee" means CenturyTel Broadband Services, LLC d/b/a CenturyLink and its lawful successors, transferees and assignees. Gross Revenues" means any and all revenue derived directly or indirectly by Grantee, or by Grantee's Affiliates 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, Expanded Basic Service, any expanded Tiers of Cable Service, other Tiers of Cable Service, optional Premium Service, pay-per-view and per-program Channels, Cable Service installation, disconnection, reconnection and change-in-service fees, Leased Access Channel fees, digital revenues, remote control rental fees, late fees and administrative fees, fees, payments, other consideration received by the Grantee from programmers for carriage of Cable Services on the Cable System and recognized as revenue under generally accepted accounting principles GAAP), revenues from rentals or sales of converters or other Cable System equipment, advertising sales revenues (including local, regional and a pro rata share of national advertising, 4 carried on the Cable System in the Agreement Area) to the extent recognized as revenue under GAAP, 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, Agreement Fees, revenue from the sale or carriage of other Cable Services, and revenues from home shopping. Gross Revenues shall include revenue received by Grantee or any entity other than the Grantee where necessary to prevent evasion or avoidance of the obligation under this Agreement to pay the Agreement Fees. Gross 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 that are imposed directly on any Subscriber or user by the State, County or other governmental unit and that are collected by the Grantee on behalf of said governmental unit; (iii) advertising commissions paid to unaffiliated advertisers; (iv) programming launch fees and marketing support where eligible fees include instances where Grantee has been compensated for the marketing costs associated with the launch and promotion of services offered. This is not meant to include incentive fees for carriage, barters, or other instances where GAAP would require treatment as revenue; (v) the PEG Replacement Contributions as required by Section 3.2 of this Agreement. The Agreement Fees are not a tax, and are therefore included in Gross Revenues. Headend" or "Hub" means any Facility for signal reception and dissemination on a System, including cable, antennas, wires, satellite dishes, monitors, switchers, modulators, processors for Broadcast Signals or other signals, equipment for the Interconnection of the System with other Systems and Interconnection of any networks that are part of the System, and all other related equipment and Facilities. Incremental Costs" means the direct and actual material and labor cost (excluding profit but including overhead expenses) of constructing, relocating or placing additional ducts, conduit or related structures by Grantee for the County excluding the costs of design, trenching, boring, pipe bedding, backfilling, compacting, restoring the surface, installation and other charges, costs or expenses that Grantee would otherwise incur to construct, relocate or place ducts, conduit or related structures for the Grantee. Interconnect" or "Interconnection" , to the extent technically applicable, means the linking of Access Channels with Access Channels carried on another cable system, including technical, engineering, physical, and other necessary components to accomplish, complete and adequately maintain such linking, in a manner to permit the transmission and receiving of electronic or optical signals at equivalent audio and video quality, functionality and accessibility to that of the commercial Channels and without signal degradation between the System and other systems or to permit the necessary components to accomplish, complete and adequately maintain pathways that permit the transmission and receiving of such electronic or optical signals between locations connected to portions of the System with other cable systems. Leased Access Channel" means any Channel or portion of a Channel commercially available for programming in accordance with Section 612 of the Cable Act. 5 Living Unit" means a disti nct address in the CenturyTel of Eagle, Inc. (CTE) or Qwest Corporation (QC) network it iventory where CTE or QC currently has, had in the past, had planned, or does provide service to a customer. This includes, but is not limited to, single family homes, multi-dwelling units (e.g., apartment buildings and condominiums) and business locations. Living Unit include:;a Dwelling Unit. Locally Scheduled Original Programming" means Government Access or Educational Access programming that is created by the County or any School including edited coverage of live programming. Such Locally Scheduled Original Programming shall not be considered as qualifying as such after three (3) cablecasts (initial, first repeat and second repeat). Automated Video Programming filler, sup as cablecasts of highways and roads can be shown, but do not count toward Locally Scheduled Original Programming that qualifies herein. Noncommercial" means, in the context of Access Channels, those particular products and services that are not promotec or sold. This term shall not be interpreted to prohibit an Access Channel operator or programri rer from soliciting and receiving financial support to produce and transmit Video Programming Dn 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" met ns those hours during which most similar businesses in the Eagle County community are open i o serve Customers. "Normal business hours" may 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 the t 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 con 3itions. Those conditions that 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 seas anal demand periods and maintenance or upgrade of the System. Pay Service" or "Premium St rvice" means Video Programming or other programming service choices (such as movie Channels or pay-per-view programs) offered to Subscribers on a per- Channel,per-program or per-el'ent basis. Person"means any natural pei son, sole proprietorship,partnership,joint venture, association, or limited liability entity or corpol'ation, or any other form of entity or organization. Remote Terminal" means a Digital Subscriber Line Access Multiplexer (DSLAM) capable of offering Cable Services to Sub:cribers. Residential Subscriber" mean: any Subscriber who receives Cable Service delivered to single or multiple Dwelling Units, excluding such Dwelling Units billed on a bulk-billing basis (except that Dwelling Units billed on a bulk-billing basis will be included as provided in Section 3.2(A)). 6 Rights-of-Way" means land acquired or dedicated to the public or are hereafter acquired or dedicated to the public and maintained under public authority or by others, including but not limited to areas on, above or below ground, public streets or roads, highways, avenues, lanes, alleys, bridges, sidewalks any l areas behind sidewalks, easements and similar public property located within the Agreemen: Area, provided however Rights-of-Way shall not include parks and open spaces where conser cation easements prohibit development. School" means any State accredited K-12 public educational institution located in the unincorporated County. Service Interruption"means the loss of picture or sound on one or more cable Channels. Standard Installation" means an installation that is within four thousand (4,000) feet of an activated Remote Terminal which is capable of providing Cable Service. State"means the State of Cols grado. Subscriber" or "Customer" n Leans any Person who lawfully receives Cable Services provided by Grantee by means of the Sy;tem with Grantee's express permission. System" or "Cable System" ;hall mean a facility, consisting of a set of closed transmission paths and associated signal pneration, reception and control equipment that is designed to provide Cable Service that includes Video Programming and that is provided to multiple Subscribers within a communit y, but such term does not include (1) a facility that serves only to retransmit the television signal s of one or more television broadcast stations; (2) a facility that serves Subscribers without usi ng any public Right-of-Way; (3) a facility of a common carrier that is subject, in whole or in Dart, to the provisions of Title II of the federal Communications Act (47 U.S.C. Section 201 et ;eq.), except that such facility shall be considered a cable system other than for purposes of Section 621(e) (47 U.S.C. Section 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; (4) an open video system that complies with Section 653 of tr e Cable Act; or(5)any facilities of any electric utility used solely for operating its electric utility:systems. When used herein,the term "Cable System" or"System" shall mean Grantee's Cable System in the Agreement Area unless the context indicates otherwise. Tier" means a category of Cable Services provided by the Grantee for which a separate rate is charged. Video Programming" means programming provided by, or generally considered comparable to programming provided by, a tel,;vision broadcast station. 7 SECTION 2. GRANT OF AI;REEMENT 2.1 Grant A) Grantor hereby grants to Grantee a nonexclusive authorization to make reasonable and lawful use of the Rights-o f-Way within the Agreement Area to construct, operate, maintain, reconstruct, repair and upgrade; a System for the purpose of providing Cable Services, subject to the terms and conditions set f)rth in this Agreement and applicable law. 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, t•rough 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 applicable construction codes ECLUR, federal and state regulations. The Grantee specifically agrees to comply with the lawful provisions of Generally Applicable County resolutions and ordinances provided that in the event of a conflict between the provisions of Generally Applicable resoluti ms and ordinances and the Agreement, the provisions of the Agreement shall govern. Sul ject to federal and State preemption, the material terms and conditions contained in this Agreement may not be unilaterally altered by the Grantor through subsequent amendment to an;, ordinance, rule, regulation, resolution, or other enactment of Grantor, except in the lawful exercise of Grantor's police power, provided, however, that such amendments enacted or modified after the effective date of this Agreement shall be reasonable and not materially modify the t rms of this Agreement. C) No rights shall I ass to Grantee by implication. Without limiting the foregoing, by way of example and not limitat on, this Agreement shall not include or be a substitute for: 1) Any othc r permit or authorization required for the privilege of transacting and carrying on a business wit]iin the County that may be required by the Generally Applicable resolutions, ordinances and law 3 of the County. 2) Any pen lit, agreement or authorization required by the County for Rights- of-Way users in connection wit 1 operations on or in Rights-of-Way or public property including, by way of example and not limitation, street cut permits; or 3) Any per nits or agreements 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. D) This Agreement is intended to convey limited rights and interests only as to those Rights-of-Ways in which the Grantor has an actual interest. It is not a warranty of title or interest in any Rights-of-Way; it does n)t provide the Grantee with any interest in any particular location within the Rights-of-Way; and it does not confer rights other than as expressly provided in the grant hereof. 8 E) This Agreement shall not be interpreted to prevent the County from imposing additional lawful conditions, i ncluding additional compensation conditions for use of the Rights- of Way, should Grantee provide service other than Cable Service. F) This Agreemer t does not authorize, prohibit or condition Grantee's provision of telecommunication services n 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 (r information services, whether similar, different or the same as the condition specified 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, to lecommunications services or information services. However, this Agreement shall not be read is a concession by Grantee that it needs authorization to provide non-Cable Services,telecomm inications services or information services. 2.2 Use of Rights-of-Way A) Grantee promises and guarantees, as a condition of exercising the privileges granted by this Agreement, the it any Affiliate of the Grantee directly involved in the offering of Cable Service in the County o• directly involved in the management or operation of the System in the County, will also comp[y with the obligations of this Agreement. However, the parties acknowledge that CTE and Q(:, affiliates of Grantee and indirect wholly-owned subsidiaries of CenturyLink, Inc. will acquire all necessary permits and be responsible for the construction and installation of the facilities in the Public Rights-of-Way, which will be utilized by Grantee to provide Cable Services and C''E and QC will own, operate and maintain all such facilities not installed by Grantee. So long E s CTE and QC do not provide Cable Service to Subscribers in the County, CTE and QC will not 1>e subject to the terms and conditions contained in this Agreement pertaining to Cable Services. CTE's and QC's installation and maintenance of facilities in the Public Rights-of-Way are gov rned by applicable law. To the extent Grantee constructs and installs facilities in the Public [fights-of-Way, such installation will be subject to the terms and conditions contained herein. B) Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, through, below and along the Rights-of-Way within the Agreement Area, such wires, cables (both coaxial and Fiber Optic), conductors, ducts, conduit, vaults, manholes, amplifiers, appliances,pedestals, attachments and other property and equipment as are necessary and appurtenant to he operation of a System for the provision of Cable Services within the Agreement Area. Grantee shall comply with all lawfully enacted and Generally Applicable construction codes, laws, ordinances, regulations and procedures regarding its placement and installation of S3 stem facilities in the Rights-of Way. C) Grantee must ft How Grantor-established requirements including all Generally Applicable Grantor codes, ordi lances and other regulations regarding placement of its System facilities (including, but not li mited to equipment cabinets) in Rights-of-Way, including the specific location of facilities in 1 he Rights-of-Way, and must in any event install System facilities in a manner that minimizes int;rference with the use of the Right-of-Way by others, including others that may be installing cc immunications facilities. Within limits reasonably related to the 9 Grantor's role in protecting public health, safety and welfare, the Grantor may require that System facilities be installed a t a particular time, at a specific place or in a particular manner as a condition of access to a partioular Right-of-Way; may deny access if Grantee is not willing to comply with Grantor's require ments; and may remove, or require removal of, any Cable System facility that is not installed in compliance with the requirements established by Grantor, or that is installed without prior Gran or approval of the time,place or manner of installation and charge Grantee for all the costs associated with removal; and Grantor may require Grantee to cooperate with others to minimize adver,;e impacts on the Rights-of-Way through joint trenching and other arrangements. Grantee shall as sume its costs (in accordance with applicable law) associated with any requirement of Grantor in the exercise of its police powers, to relocate its System facilities located in the Rights-of-Way f rovided the same is consistent with State law. D) Joint Trenching'Boring: To the extent it is technically and economically feasible, Grantee shall joint trench or share bores or cuts and work with other providers (such as, but not limited to, telecommunication: gas, and electric companies), licensees, permittees and grantees so as to reduce the number of rights-of-way cuts within the Agreement Area. 2.3 Term of Agreement The initial term of this Agreement and all rights, privileges, obligations and restrictions pertaining thereto shall be ter (10) years from the Effective Date of this Agreement, unless terminated sooner or extended is hereinafter provided. 2.4 Effective Date A) This Agreement and the rights, privileges, and authority granted hereunder and the contractual relationship established hereby shall take effect and be in force from and after the effective date of this Agreement as specified in this Section. B) The Effective D;ite of this Agreement shall be as of December 31, 2013. C) The grant of this Agreement shall have no effect on the Grantee's duty under any agreement in effect prior to tL e Effective Date of this Agreement to indemnify or insure the Grantor against previous acts and omissions or to pay Agreement Fees owed under a prior agreement 2.5 Agreement Nonexclusi re This Agreement shall be nonE;xclusive, and subject to all prior rights, interests, easements, franchises or agreements gran:ed by Grantor or its predecessors to any Person to use any property, Rights-of-Way, eases lent, right, interest or Agreement for any purpose whatsoever, including the right of Grantor to use same for any purpose it deems fit, including the same or similar purposes allowed Grant:e hereunder. Grantor 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 additioi ial agreements for Cable Systems as Grantor deems appropriate. 10 2.6 Grant of Other Agreements, Competitive Equity The Grantee acknowledges and agrees that the County reserves the right to grant one (1) or more additional agreements, franchises or other similar lawful authorization, to provide Cable Services within the Agreement Area; provided, however, that no such agreement, franchise or similar lawful authorization shall contain material terms or conditions which are substantially more favorable or less burdensome to the competitive entity than the material terms and conditions herein, including, but not limited to: Agreement Fees; insurance; System build-out requirements; security instruments; Public, Education and Government Access Channels and support; customer service standards; required reports and related record keeping; Access Fees; and notice and opportunity to cure breaches. The parties agree that this provision shall not require a word for word identical agreement, franchise or authorization for a competitive entity so long as the regulatory and financial burdens on each entity are materially equivalent. If the County grants any such additional or competitive agreement or franchise, the County agrees that it shall amend this Agreement to include any more favorable or less burdensome terms or conditions. Notwithstanding any provision to the contrary in this Agreement, at any time that a non-wireless facilities based carrier legally authorized by state or federal law, passes twenty-five percent 25%) of the Dwelling Units in the Agreement Area and makes available for purchase by subscribers multiple Channels of Video Programming within the Agreement Area without an agreement or other similar lawful authorization granted by the County, then the term of Grantee's Agreement shall, upon ninety (90) days written notice from Grantee, be shortened so that the Agreement shall be deemed to expire on a date thirty six (36) months from the first day of the month following the date upon which the competitor makes Cable Service available in the Agreement Area. Grantee shall immediately thereafter secure Agreement renewal rights pursuant to Section 626 of the Cable Act with no further notice to the County required. The County and Grantee shall then enter into proceedings consistent with Section 626 for renewal of this Agreement. The County and Grantee shall have all rights and obligations provided under said Section 626. Notwithstanding the reference to the three (3) year renewal window herein, in no event, however, shall the term of this Agreement be reduced to less than five (5) years from the Effective Date of this Agreement. Notwithstanding any provision to the contrary, should any non-wireless facilities based entity pass twenty-five percent(25%) of the Dwelling Units in the Agreement Area and make available Cable Service within the Agreement Area during the term of this Agreement without a franchise or similar agreement granted by the County then Grantee may assert, at Grantee's option, that this Agreement is rendered "commercially impracticable," and invoke the modification procedures set forth in Section 625 of the Cable Act, it being understood and agreed, however, that if any such modification is made, it shall apply to only those specific pertinent Sections of this Agreement and this Agreement will not be rendered void since all remaining provisions of this Agreement shall remain in full force and effect.Neither Grantor nor Grantee is waiving their rights to object to any such modifications. 2.7 Familiarity with Agreement 11 The Grantee acknowledges and warrants by acceptance of the rights, privileges and agreement 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 reasonable risks of the meaning of the provisions, terms and conditions herein. Provided that if Federal or State law changes, Grantee reserves its rights to contractually challenge specific provisions of this Agreement if it so elects, it being understood that Grantor does not agree to such challenges as a matter of course. 2.8 Effect of Acceptance By accepting the Agreement, the Grantee: (1) acknowledges and accepts the Grantor's legal right to issue and enforce the Agreement; (2) agrees that it will not oppose the Grantor's intervening or joining the Grantee to the extent it is legally entitled to do so in any legal or regulatory proceeding affecting the System; (3)accepts and agrees to comply with each and every provision of this Agreement subject to applicable law. Grantor shall not be under any obligation whatsoever to expend funds to purchase the services of counsel to defend Grantee. In the event that a legal action or equitable or declaratory proceeding is filed against the County with respect to the granting, validity, implementation or enforcement of or is otherwise connected directly with this Agreement, Grantee shall indemnify, defend and hold Grantor, its officers, officials, Boards, commissions, authorized agents and employees harmless from all damages, loss, liability, costs, attorneys' fees and expenses including court and appeal costs in connection therewith. 2.9 Police Powers Grantee's rights hereunder are subject to the police powers of Grantor to adopt and enforce Generally Applicable resolutions and ordinances necessary to the safety, health and welfare of the public, and Grantee agrees to comply with all Generally Applicable laws, resolutions, ordinances and regulations lawfully enacted pursuant to the police powers of Grantor, or hereafter enacted in accordance therewith, by Grantor or any other legally constituted governmental unit having lawful jurisdiction over the subject matter hereof, provided, however, that such amendments enacted or modified after the effective date of this Agreement shall be reasonable and not materially modify the terms of this Agreement. The County reserves the right to exercise its police powers, notwithstanding anything in this Agreement to the contrary. 2.10 Agreement Area Grantee shall provide Cable Services, as authorized under this Agreement, within the Agreement Area in accordance with line extension provisions as provided herein. SECTION 3.AGREEMENT FEE AND FINANCIAL CONTROLS 3.1 Agreement Fee Grantee and Grantor acknowledge and recognize that Grantor has entered into Cable Television Agreements with other providers of Cable Services. Such agreements contain provisions relating to compensation for use of Grantor's Rights-of-Way and Support for Access Fees. As 12 compensation for the use of Grantor's Rights-of-Way, Grantee shall pay as an Agreement Fee to Grantor throughout the duration of this Agreement an amount equal to 5% of Grantee's Gross Revenues. Accrual of such a fee shall continue as of the effective date of this Agreement and shall be paid to the County with the next required filing. If Federal Law permits an Agreement Fee which can be greater than 5% of Grantee's Gross Revenues, Grantor may require the implementation of such a higher percentage up to the maximum permitted by law upon giving Grantee ninety(90)days advance written notice. 3.2 Replacement Capital Contributions. A) Commencing within ninety (90) days from execution of this Agreement, Grantee shall pay to the Grantor a fee based upon the formula of sixty cents (600) 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). The Replacement Capital Contributions may only be applied by the County toward capital expenditures related to PEG Access.Notwithstanding the foregoing, if the dominant incumbent cable television wireline provider pays Replacement Capital Contributions on bulk billing accounts, Grantee shall commence and continue doing so as well within ninety (90) days of notice from the Grantor. This shall apply to any successor to the dominant incumbent cable television wireline provider and any operator of its cable system, as well as even if someday it is no longer the dominant incumbent cable television wireline provider. Grantee shall perform the necessary true-ups for the Replacement Capital Contributions within 120 days following substantial completion of transition to the PRISM Cable System as defined in Section 11 and will within fifteen (15) days thereafter remit to the Grantor any such additional amounts which are owed. Within thirty (30) days of substantial completion of the transition described in Section 11, the parties shall meet, if necessary,to reconcile and true-up any differences. Each payment shall be due and payable with the quarterly Agreement Fee payment. Grantee is not an agent of Grantor. Notwithstanding anything to the contrary in this Section 3.2, 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 upon written request of the Grantee, 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 reduce the amount of, 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. 13 To the extent the County makes Access capital investments using County funds prior to receiving necessary Replacement Capital Contributions, the County is entitled to apply subsequent Replacement Capital Contributions payments from Grantee toward such County capital investments. The County and Grantee agree that the Replacement Capital Contributions will 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. 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 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. B) Support for Access Costs. Grantee shall be entitled to fully recover the entire amount of the Replacement Capital Contribution, return line construction and associated equipment, and Scrambled Digital Channel equipment (collectively referred to as the "Access Costs") through a separate line item on the bills of Residential Subscribers in accordance with federal law until such time as the Access Costs are fully recovered. The Replacement Capital Contribution may only be applied by the County toward capital expenditures related to PEG Access, including, but not limited to studio equipment, County Chamber equipment, portable production equipment, editing equipment, program playback equipment, Access related facilities purchases, renovation or construction, and return feeds, County governmental programming and broadcasting and for the Scrambled Digital Channel or public information purposes. Grantor may also use the Replacement Capital Contribution for construction of an Institutional Network or equipment in connection therewith I-Net") provided that the I-Net is constructed or provided by Grantee through a separate agreement. In such case, Grantee agrees that the costs for the I-Net provided to Grantor shall be calculated in a nondiscriminatory manner consistent with Grantee's regular business practices. Grantor may not use the Replacement Capital Contribution for an I-Net that is not provided or constructed by Grantee. C) Additional Commitments Not Agreement Fees. No term or condition in this Agreement shall in any way modify or affect Grantee's obligation to pay Agreement Fees. Although the total sum of Agreement Fee payments and additional commitments set forth elsewhere in this Agreement may at some point total more than five percent (5%) of Grantee's Gross Revenues in any 12-month period, Grantee agrees that the additional commitments regarding Replacement Capital Contributions, Access Costs and Access Channels, and the Scrambled Digital Channel 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. 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 14 Agreement, that such Replacement Capital Contributions, Access Costs, Access Channels, or Scrambled Digital Channel are Agreement Fees as defined under federal or state law or regulations so as to form the basis for offset or credit against any or all Agreement Fee payments paid or due to the County. 3.3 Payments Grantee's Agreement Fee payments to Grantor shall be computed quarterly for the preceding calendar quarter ending March 31, June 30, September 30, and December 31. Each quarterlypaymentshallbedueandpayablenolaterthanforty-five(45)days after said dates. 3.4 Acceptance of Payment No acceptance of any payment shall be construed as an accord by Grantor that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim Grantor may have for further or additional sums payable or for the performance of anyotherobligationofGrantee. 3.5 Quarterly Agreement Fee Reports Each payment shall be accompanied by a written report to Grantor containing an accurate statement in summarized form of Grantee's Gross Revenues and the computation of the payment amount. Such reports shall detail all Gross Revenues of the System. 3.6 Audits On an annual basis, upon thirty (30) days prior written notice, Grantor shall have the right to conduct an independent audit of Grantee's records necessary to enforce compliance with this Agreement and to calculate any amounts determined to be payable under this Agreement. Provided Grantee cooperates in making all relevant records available upon request, Grantor will in good faith attempt to complete each audit within six (6) months. Any additional amounts due to the Grantor as a result of the audit shall be paid within sixty(60) days following written notice to the Grantee by the Grantor, which notice shall include a copy of the audit findings, and Grantee's agreement that the audit findings are correct. If a Agreement Fee underpayment is discovered as the result of an audit, Grantee shall pay, in addition to the amount due, interest at a rate of eight percent (8%) compounded annually calculated from the date the underpayment was originally due until the date the County receives the payment. Agreement Fee underpayments shall not be subject to interest on late fees described in Section 3.8. If the audit shows thatAgreementFeeshavebeenunderpaid, by five percent (5%) or more in a calendar year, Grantee shall pay the reasonable and customary cost of the audit. 3.7 Financial Records Grantee agrees to meet with a representative of the Grantor upon reasonable written request to review Grantee's methodology of record-keeping, financial reporting, the computing ofAgreementFeeobligationsandotherprocedures, the understanding of which the Grantor deems 15 necessary for reviewing reports and records that are relevant to the enforcement of this Agreement. 3.8 Interest on Late Payments In the event any Agreement Fee payment is not received within forty-five (45) days from the end of the calendar quarter, Grantee shall pay, in addition to the payment or sum due, interest from the due date at the prime rate as listed in the Wall Street Journal on the date the payment was due,compounded daily, until the date the County receives the payment. 3.9 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 after written notice to Grantee (subject to the conditions and restrictions contained in Section 3.1 of this Agreement), and a public meeting to discuss same provided that all wireline Cable Systems in the Agreement Area over which the Grantor has jurisdiction are treated in an equivalent manner. 3.10 Payment on Termination If this Agreement terminates for any reason, the Grantee shall file with the Grantor within one hundred twenty (120) calendar days of the date of the termination, a financial statement showing the Gross Revenues received by the Grantee since the end of the previous fiscal year. Within forty five (45) days of the filing of the statement with the Grantor, Grantee shall pay any unpaid amounts as indicated. If the Grantee fails to satisfy its remaining financial obligations as required in this Agreement, the Grantor may do so by utilizing the funds available in a Letter of Credit or other security provided by the Grantee. 3.11 Bundling Grantor acknowledges that, during the term of this Agreement, Grantee may offer to its subscribers, at a discounted rate, a bundled or combined package of services consisting of Cable Services, which are subject to the Agreement Fee referenced above in Section 3.1, and other services that are not subject to that Agreement Fee. 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 County. If a dispute arises between the parties regarding this matter, Grantor and Grantee will meet within ten (10) days notice and discuss such matters in good faith in an attempt to reach a reasonable compromise thereof. 3.12 Tax Liability 16 The Agreement Fees shall be 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, sales, use, utility 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. SECTION 4.ADMINISTRATION AND REGULATION Grantor shall be vested with the power and right to administer and enforce the requirements of this Agreement and the regulations and requirements of applicable law, including the Cable Acts, or to delegate that power and right of administration, or any part thereof, to the extent permitted under federal, State and local law,to any agent in the sole discretion of the County. 4.1 No Rate Discrimination All Grantee residential rates and charges shall be published (in the form of a publicly-available rate card), made available to the public, and shall be non-discriminatory as to all Persons of similar classes, under similar circumstances and conditions. Grantee shall apply its rates in accordance with governing law. Nothing herein shall be construed to prohibit: A) The temporary reduction or waiving of rates or charges in conjunction with promotional campaigns; B) The offering of reasonable discounts to similarly situated Persons; C) The offering of rate discounts for either Cable Service generally; or D) The offering of bulk discounts. 4.2 Filing of Rates and Chargesggs A) Throughout the term of this Agreement, Grantee shall maintain on file with Grantor 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 promotional campaigns. As used in this subsection, no rate or charge shall be considered temporary if Subscribers have the ability over a period greater than twelve (12) consecutive months (or such other period as may be approved by Grantor)to purchase Cable Services at such rate or charge. B) Grantee shall comply with all applicable provisions of the FCC rules and federal regulations related to cost distribution and cross subsidies. Grantee shall file with the Grantor a copy of its annual certification of compliance with these rules submitted to the FCC. 4.3 Leased Access Channel Rates 17 Upon request, Grantee shall provide a complete schedule of current rates and charges for any and all Leased Access Channels, or portions of such Channels,provided by Grantee. 4.4 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 laws. B) 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 Subscribers. SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS 5.1 Indemnification A) General Indemnification. Grantee shall indemnify, defend and hold Grantor, its officers, officials, boards, commissions, authorized agents and employees, harmless from any action or claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and attorneys' fees and expenses, arising from any casualty or accident to Person or property, including,without limitation, copyright infringement 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 authorized agents, or its employees, or by reason of any neglect or omission of Grantee its authorized agents or its employees. Grantee shall consult and cooperate with the Grantor while conducting its defense of the Grantor. B) Indemnification for Relocation. Subject to applicable law, Grantee shall indemnify Grantor for any damages, claims, additional costs or expenses assessed against, or payable by, Grantor related to, arising solely out of, or resulting solely 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 required by Grantor. C) Additional Circumstances. Grantee shall also indemnify, defend and hold Grantor harmless for any claim for injury, damage, loss, liability, cost and expense, including court and appeal costs and attorneys' fees and expenses in any way arising out of any failure by Grantee to secure consents from the owners, authorized distributors or agreements/licensors of programs to be delivered by the System,provided however, that Grantee will not be required to indemnify the Grantor for any claims arising out of the use of Access Channels by the Grantor and/or its Designated Access Providers or use by the Grantor of the Emergency Alert System. D) Procedures and Defense. If a claim or action arises, Grantor or any other indemnified party shall tender the defense of the claim or action to Grantee, which defense shall be at Grantee's expense. Grantor may participate in the defense of a claim and, in any event, 18 Grantee may not agree to any settlement of claims financially affecting Grantor without Grantor's written approval that shall not be unreasonably withheld. E) Duty of Defense. The fact that Grantee carries out any activities under this Agreement through independent contractors shall not constitute an avoidance of or defense to Grantee's duty of defense and indemnification under this Section. F) Duty to Give Notice. The Grantor shall give the Grantee timely written notice of any claim or of the commencement of any action, suit or other proceeding covered by theindemnityinthisSection. In the event any such claim arises, the Grantor or any otherindemnifiedpartyshalltenderthedefensethereoftotheGranteeandtheGranteeshallhavethe obligation and duty to defend any claims arising thereunder, and the Grantor shall cooperatefullytherein. G) Separate Representation. In accordance with Section 5.1, if separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between the Grantor and the counsel selected by Grantee to represent the Grantor, Grantee shall pay reasonable attorneys' fees and expenses incurred by the Grantor in defendingitselfwithregardtoanyaction, suit or proceeding indemnified by Grantee. The Grantor's fees and expenses shall include all reasonable out-of-pocket expenses, such as consultants' fees, and shall also include the reasonable value of any services rendered by the County Attorney orhis/her assistants or any employees of the Grantor or its agents but shall not include outside attorneys' fees for services that are unreasonably duplicative of services provided to the GrantorbyGrantee. H) The grant of this Agreement shall have no effect on the Grantee's duty to insuretheCountyagainstactsandomissionsoccurringduringanypriorperiod. I) Any obligation on the part of the County to indemnify Grantee as set forth in this Agreement shall be subject to sovereign immunity limits or other immunity protections as provided under State or Federal law. 5.2 Insurance Requirements A) General Requirement. Grantee shall at its own expense purchase and maintain the minimum insurance required herein with companies duly licensed to issue insurance in the State of Colorado,possessing a current A.M. Best, Inc. Rating of AVII or better. Said insurance shall be maintained in full force and effect until all work required to be performed under the terms of this Agreement is satisfactorily completed. In the event anyinsurancepolicy(ies)required by the Agreement shall be written on a claims made basis, Grantee agrees to keep policy(ies) in place for one year past completion and acceptance of Grantee's work or services and one year beyond the expiration or termination of the Agreement. Anyfailuretocomplywiththeclaimreportingprovisionsofthepolicy(ies) or any breach of an insurance policy warranty shall not affect coverage afforded under the policy to protect the 19 Grantor. However, if coverage is not afforded under these circumstances, Grantee will indemnify Grantor for losses Grantor otherwise would have been covered for as an additional insured. The policy(ies), except Workers' Compensation, shall contain a waiver of transfer rights of recovery(subrogation) against Grantor, its officers, officials, agents, and employees for any claims arising out of Grantee's work or service. Grantee solely shall be responsible for deductibles and/or self-insured retention, and Grantor, at its option, may require Grantee to secure the payment of such deductible or self-insured retention by a surety bond. B) Minimum Insurance Limits. Grantee must maintain during the Agreement term and for a period of twelve (12) months after expiration, termination or nonrenewal thereof, insurance in effect in accordance with the minimum insurance limits herein set forth by the Grantor. The Grantee shall obtain policies or provide evidence of self insurance for the following minimum insurance limits: 1) Commercial General Liability: One million dollars ($1,000,000)with Two million dollars ($2,000,000) aggregate limit per occurrence for bodily injury,personal injury and property damage and Two million dollars ($2,000,000)products and completed operations; 2) Automobile Liability: One million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage; and 3) Employers Liability: One hundred thousand dollars ($100,000). 4) Workers Compensation Insurance in accordance with State law requirements. The amounts listed above are the minimum deemed necessary by Grantor to protect Grantor's interests in this matter. Grantor has made no recommendation to the Grantee as to the insurance necessary to protect Grantee's interests and any decision by the Grantee to carry or not carry insurance amounts in excess of the above is solely that of the Grantee. Grantee shall be responsible for judgments, settlements, damages, costs, attorneys' fees and expenses that exceed limits of Grantee's insurance coverage. C) Endorsements. 1) All policies shall contain, or shall be endorsed so that: a) The Grantor shall be designated as additional insured. b) The Grantee's insurance coverage shall be primary insurance with respect to the Grantor, its officers, officials, boards, commissions, employees and duly authorized agents. Any insurance or self-insurance maintained by the Grantor, its officers, officials, boards, commissions, employees and agents shall be in excess of the Grantee's insurance and shall not contribute to it, provided the occurrence arises out of Grantee's acts or negligence; and c) Grantee's insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability. 2) The insurance shall provide that the insurance shall not be cancelled or materially altered so as to be out of compliance with the requirements of this Section without 20 forty-five (45) days written notice first being given to Grantor. If the insurance is cancelled or materially altered so as to be out of compliance with the requirements of this Section within the term of this Agreement, Grantee shall provide a replacement policy. Grantee agrees to maintain continuous uninterrupted insurance coverage, in the amounts required, for the duration of this Agreement. D) Verification of Coverage. The Grantee shall furnish the Grantor with certificates of insurance and an endorsement reflecting blanket additional insured status. The certificates for each insurance policy are to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificates for each insurance policy are to be on standard forms or such forms as are consistent with standard industry practices, and are to be received and approved by the Grantor at the time of acceptance of this Agreement by Grantee with existing insurance coverage to be maintained by Grantee until that date. The Grantee hereby warrants that its insurance policies satisfy the requirements of this Agreement. 5.3 Security A) Grantee or its affiliates shall provide a Performance Bond in the amount of Twenty Five Thousand dollars ($25,000)to ensure the faithful performance of its responsibilities under this Agreement and applicable law, including, by way of example and not limitation, its obligations to relocate and remove its facilities and to restore County Rights-of-Way and other property. Grantee may be required to obtain additional bonds, such as generally applicable Construction Bonds, in accordance with the County's ordinary practices. The Construction Bond and Performance Bond shall be in a form reasonably acceptable to the County's Risk Manager. Grantee shall pay all premiums or costs associated with maintaining the bond(s), and shall keep the same in full force and effect at all times. Except as expressly provided herein, the Grantee shall not be required to obtain or maintain other bonds as a condition of being awarded the Agreement or continuing its existence. B) After the receipt of written notice sent by the County to Grantee, and expiration of any applicable cure period, which shall not be less than thirty (30) days, the County may draw upon the performance bond for purposes that include,but are not limited to the following: 1) Failure of Grantee to pay the County sums due under the terms of this Agreement; 2) Reimbursement of costs borne by the County to correct Agreement violations not corrected by Grantee; and 3) Monetary remedies or damages assessed against Grantee as provided in this Agreement. C) The County shall give Grantee written notice of any withdrawal under this subsection upon such withdrawal. Within ten (10) days following receipt of such notice, Grantee shall restore the performance bond to the amount required under this Agreement. Grantee's maintenance of the performance bond shall not be construed to excuse unfaithful performance by Grantee or limit the liability of Grantee to the amount of the performance bond or otherwise limit the County's recourse to any other remedy available at law or in equity. 21 D) The bond shall provide that the bond shall not be cancelled or materially altered so as to be out of compliance with the requirements of this Section without forty-five (45) days written notice first being given to Grantor. If the bond is cancelled or materially altered so as to be out of compliance with the requirements of this Section within the term of this Agreement, Grantee shall provide a replacement bond. Grantee agrees to maintain a continuous uninterrupted performance bond in the amount required for the duration of this Agreement or as otherwise specified in this Agreement. E) Grantee shall have the right to appeal to the County for reimbursement in the event Grantee believes that the performance bond was drawn upon improperly. After a determination by the County, Grantee shall also have the right of judicial appeal if Grantee believes the performance bond has not been properly drawn upon in accordance with this Agreement. Any funds the County erroneously or wrongfully withdraws from the performance bond shall be returned to Grantee with interest, from the date of withdrawal at a rate equal to the prime rate of interest as quoted in the Wall Street Journal on the date the County withdrew funds from the performance bond until the date the County returns the money to Grantee. SECTION 6. CUSTOMER SERVICE 6.1 Customer Service Standards Commencing ninety(90) days from the Effective Date of this Agreement, Grantee shall comply with Customer Service Standards as provided in FCC Standards, Federal Laws and Regulations and 47 C.F.R. Sections 76.309, 76.1602, 76.1603 and 76.1619; provided, however, Standard Installation and the timing of the requirement for performing a Standard Installation shall be as set forth in this Agreement, rather than as described in the foregoing Code of Federal Regulations. 6.2 Subscriber Privacy Grantee shall comply with privacy rights of Subscribers in accordance with applicable federal, State and local laws. 6.3 Customer Service Location(s) Throughout the Agreement term, the Grantee shall maintain, at a minimum, one (1) Customer service location as prescribed herein conveniently located within the County limits that will be open during Normal Business Hours, and in some instances, to provide Subscribers the opportunity to pick up (certain types of equipment depending upon size and subject to storage availability on site) and return Subscriber equipment and to make bill payments. In addition, Grantee may maintain an online Customer support center where Customers may access information related to services and products, make bill payments or "speak" with a virtual Customer service representative. Grantee is encouraged to provide a website whereby Subscribers can request service credits and make service changes. 22 6.4 Customer Service Agreement and Manual A) Grantee shall provide to Subscribers an accurate, comprehensive service agreement for use in establishing Subscriber service. This material shall, at a minimum, contain the following: 1) Grantee's procedure for investigation and resolution of Subscriber service complaints. 2) Services to be provided and rates for such services. 3) Billing procedures. 4) Service termination procedure. 5) A description of the manner that will be used to provide notice of changes in rates, service or service terms and conditions. 6) A complete statement of the Subscriber's right to privacy. 7) Equipment policy. 8) The name and phone number of the Customer care department that is responsible for handling cable questions and complaints for the Grantee. This information shall be prominently displayed in the installation packet. B) A copy of the installation packet shall be available at the Customer service location within the County and shall be provided to each Subscriber at the time of initial installation requiring a home visit by the Grantee (excluding reconnections to the same Subscriber within twelve (12)months), and at any time the packet is requested by the Subscriber. SECTION 7.REPORTS AND RECORDS 7.1 Open Records Grantor shall have access to, and the right to inspect, books and records of Grantee and its Affiliates, if necessary and reasonably related to the enforcement of the terms of this Agreement. Grantee shall not deny Grantor access to Grantee's records referred to in this Section on the basis that Grantee's records are under the control of any parent corporation, Affiliated Entity or a third party. Grantee may request, in writing within ten (10) days of receipt of such request, that Grantor inspect said books and records at Grantee's local offices. If any books or records of Grantee are not kept in a local office and if Grantor determines that an examination of such records is necessary for the enforcement of this Agreement, then all reasonable travel expenses, not to exceed Grantee's internal guidelines for travel expense, incurred in making such examination shall be paid by Grantee. Grantor and Grantee shall work together so that records shall be provided in sufficient detail so that Grantor can conduct its analysis and review. If any records are deemed by Grantee to be proprietary, then Grantee may require Grantor to execute a non disclosure agreement prior to granting access to said records. If Grantor determines it is necessary to file a declaratory action with respect to open record issues, Grantee shall join in that proceeding to represent its interests. 7.2 Confidentiality 23 Grantor agrees to keep confidential and proprietary those confidential books or records to the extent permitted by law. Grantee shall be responsible for clearly and conspicuously identifying the work confidential or proprietary, and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under State or federal law. If Grantor receives a demand from any Person for disclosure of any information designated by Grantee as confidential, Grantor shall, so far as consistent with applicable law, advise Grantee and provide Grantee with a copy of any written request by the party demanding access to such information within a reasonable time. 7.3 Records Required Grantee shall at all times maintain: 1) A full and complete set of plans, records and "route" maps showing the location of its System equipment installed or in use in the Rights-of-Way, that are generated in Grantee's normal course of business; 2) A copy of all FCC filings on behalf of Grantee, its parent corporations or Affiliates that directly relate to the operation of the System in the Agreement Area; 3) A list of Grantee's Cable Services,rates and Channel line-ups. 7.4 Copies of Federal and State Reports Upon written request, Grantee shall submit to Grantor copies of any applications, notifications, communications and documents of any kind, submitted by Grantee or its Affiliates to any regulatory agencies and other government bodies if such documents directly relate to the operations of Grantee's System within the Agreement Area. Grantee shall submit such documents to Grantor no later than thirty (30) days after receipt of Grantor's 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 or unless such documents are attorney work product. With respect to all other reports, documents and notifications provided to any federal, State or local regulatory agency as a routine matter in the due course of operating Grantee's System within the Agreement Area, Grantee shall make such documents available to Grantor upon Grantor's written request. 7.5 Complaint File and Reports Grantee shall keep an accurate and comprehensive compilation of any and all Customer complaints received by Grantor and forwarded to Grantee in a manner consistent with the privacy rights of Subscribers. Upon written request, Grantee shall provide an executive summary report to the County on an annual basis (unless requested semi-annually by the County) within thirty (30) days of the end of each year (or six month period as the case may be) that shall include the following information: A) Nature and type of Customer complaints that have been received by Grantor and forwarded to Grantee; 24 B) A summary of unplanned Service Interruptions in excess of two (2) or more hours, including the frequency, location and Customer impact information if such information is available; C) Average response time for service calls; D) Phone activity report, consistent with Grantee's regular business practices; E) Video Programming changes (additions/deletions); and F) A description of Grantee's planned construction, if any, for the current year. 7.6 Inspection of Facilities and Annual Meeting Grantor, consistent with its regular inspection practices and subject to the other provisions herein, may inspect any of Grantee's facilities and equipment located in the Rights-of-Way or on other County property at any reasonable time during business hours upon at least twenty-four 24)hours notice,or, in case of emergency, upon demand without prior notice. Throughout the term of the Agreement, Grantee shall, upon request, meet with the Grantor on an annual basis upon fifteen (15) days prior written notice from Grantor. Matters to be discussed include, but are not limited to Customer service, System performance, technical issues and other matters related to Grantee's operation of the Cable System. 7.7 False Statements Any intentional false or misleading statement or representation in any report required by this Agreement shall be a material breach of this Agreement and may subject Grantee to all remedies, legal or equitable,that are available to Grantor under this Agreement or otherwise. 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) 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. 25 8.2 Leased Access Channels The Grantee shall provide leased access Channels as required by federal law. 8.3 Deletion 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 prior written notice to 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 shall be maintained. 8.4 Obscenity Grantee shall not transmit, or permit to be transmitted, over any Channel subject to its editorial control any programming which is obscene under applicable federal, State or local laws, statutes, regulations or standards now existing or hereafter adopted. 8.5 Services for the Disabled Grantee shall comply with the Americans With Disabilities Act and any amendments or successor legislation thereto. 8.6 Parental Control Device Upon request by any Subscriber, Grantee shall make available, for which there can be a charge, a parental control or lockout device, traps or filters to enable a Subscriber to control access to both the audio and video portions of any or all Channels. Grantee shall inform its Subscribers of the availability of the lockout device at the time of their initial subscription and upon request from a Subscriber. 8.7 Complimentary Cable Service The Grantee upon request, shall provide without charge, one (1) Standard Installation and Basic Service (Prism TV) drop and up to four (4) set top boxes unless otherwise provided below for those County buildings now existing or hereafter constructed provided that the buildings are either owned and occupied or leased and occupied by the Grantor, for any of its services or programs, fire station(s), sheriff station(s), and to libraries and School(s) and provided further that they are already served or are within 4000 feet of a Grantee activated Remote Terminal, excluding those buildings or portions of buildings that house or occupy prison/jail populations. In conjunction with the foregoing, free Basic Service shall continue to be provided to those locations as set forth herein, including additional free drops and set top boxes as specified: 1 Administration Building(500 Broadway)—3 total free drops and up to 12 set top boxes. 26 2 Annex/Old Court House Building(551 Broadway). 3 Facilities Management Building(590 Broadway). 4 The Maintenance Service Center, which includes the Road and Bridge Department and Eagle County Regional Transit (3289 Cooley Mesa Road)—2 total free drops and up to 8 set topboxes. 5 Airport Administration (219 Eldon Wilson Road). 6 Airport Terminal (217 Eldon Wilson Road). 7 Justice Center, which includes the Sheriff's Office and Court Administration (885 Chambers Avenue)—2 total free drops and up to 8 set top boxes. 8 Justice Center Annex, District Attorney's Office (955 Chambers Avenue). 9 White House CSU Extension Building(441 Broadway). 10 Fairgrounds Fair Office and Exhibit Hall(0425 Fairgrounds Road). 11 Fairgrounds Eagle River Center(0794 Fairgrounds Road). The Cable Service described herein is a voluntary initiative of Grantee, but shall be provided throughout the term of this Agreement. 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. The Cable Service provided shall not be used for commercial purposes and the County shall take reasonable steps to limit display in public areas to the County Access Channels. The intent of the preceding provision is to ensure access to Cable Services for the benefit of the Grantor, libraries and Schools, it being agreed, however, that (except for locations referred to in 1-10 above) Grantee need not provide Cable Service if complimentary cable service is already being provided by another cable operator. The Grantor shall take reasonable precautions to prevent any use of the Grantee's Cable System in any manner that results in the inappropriate use thereof or any loss or damage to the Cable System. To the extent not inconsistent with other provisions in this Agreement or applicable law, 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, libraries and Schools required by this Section. The parties agree that Complementary Cable Service is not available beyond 4,000 feet of a Grantee activated Remote Terminal. 27 SECTION 9.EDUCATIONAL AND GOVERNMENTAL ACCESS 9.1 Access Channels and Additional Access Channels Grantee shall continue to provide at no cost to the County, one (1) Downstream Government Access Channel on the Cable System and as part of the Basic Service Package. 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, other municipalities, Schools and Metro Districts; 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. Grantee shall also provide at no charge the following Access Channels: One (1) Scrambled Digital Channel that will be available only to specified CountyfacilitiespursuanttoSection12ofthisAgreement. All Access Channels and the Access Video on Demand Service provided to Subscribers with respect to Governmental Programming shall be included by Grantee as a part of every tier containing Basic Cable Service offered by Grantee on its System. Additionally, Grantee shall make available at no charge to Grantor one (1) additional Channel to be triggered for PEG programming in accordance with Section 9.2 herein. It is further agreed that one (1)Access Channel that has Governmental Programming may also be utilized for public access programming. Grantor acknowledges that some Video Programming Services may be removed from the Basic Service package to make room for Access channels. In the event Grantee makes any change in the System and related equipment and facilities or in signal delivery technology, which change directly or indirectly affects the signal quality or transmission of any Access Channel programming or services, the Grantee shall, at its own expense, take necessary technical steps, or acquire new equipment so that the Access facilities and equipment may be used as intended to ensure that delivery of Access Video Programming signals is not diminished or adversely affected, including, among other things, so that live and taped programming can be cablecast with as good or better signal quality than existed prior to such change. For example, these provisions shall apply if Basic Service on the Cable System is converted from an analog to a digital format, such that the Access Channels may be transmitted in digital format in order to be received by Subscribers. Showcase Channel Unless the FCC determines in MB Docket No. 09-13, CSR-8126 or a similar proceeding that such treatment of PEG channels would be discriminatory, Grantee may, after notice to the Grantor and Subscribers, consolidate all PEG channels to a single channel on the Basic Service Tier, so that all PEG channels could be accessed either as an application on a menu or as choices 28 on the assigned channel; provided, however, that any such change shall require, at a minimum that: A) At the sole discretion of the County, the single channel assignment will be whatever channel number is utilized by the County's Government Access Channel. B) To the extent any existing Access Channels are reassigned to the single channel references herein,the relocation requirements of Section 9.5 shall apply. C) The single channel application shall not in any way modify Grantee's obligations to comply with all Interconnection obligations. D) The single channel application shall not in any way modify Grantee's obligations to comply with all required technical standards. Grantee shall transport and distribute all Access Channels on its Cable System without visible or audible degradation of signal quality, and shall not discriminate against PEG Access Channels with respect to the level of picture resolution, encoding rate, functionality (including but not limited to menu access, second audio program, close captioning and other features available with local broadcast digital format Channels), signal quality and features from those of the local broadcast digital format Channels carried on the Cable System. The Grantee shall include appropriate designation for the PEG Channels on channel cards and other channel listings provided to Subscribers. Signal quality shall not be degraded on these Channels, from the time they are received from the origination location to the time they are transmitted to and received by the Subscriber. Grantee shall provide PEG Channels at equivalent audio and visual quality, level of picture resolution, encoding rate, functionality (including but not limited to menu access, second audio program, close captioning and other features available with commercial Channels carried on the lowest service tier)and accessibility to that of commercial Channels carried on the lowest service tier. GAVOD Access Video on Demand: In addition to the dedicated PEG Channels, Grantee shall also provide at its cost to the Grantor capacity on Grantee's video on demand server equipment, up to a maximum capacity of 25 hours of standard definition programming (or high-definition programming if so provided), for PEG Programming, such that GAVOD-enabled Subscribers will be able to select and watch such programs on a program-by-program basis using the video on demand system that Grantee uses to offer other programming. Notwithstanding the foregoing, Grantee's obligation under said sentence shall be limited to the provision of capacityforGovernmentProgrammingwhichisdeliveredbytheCountyinproperlyencodedformfor use in video on demand systems. Up to twenty-five (25) hours of programming as designated and supplied by the Grantor to the Grantee shall be electronically transmitted and/or transferred and stored on the GAVOD System. The database of that programming shall be able to be efficiently searched and a program requested shall be viewed over the GAVOD System by anySubscriberintheCounty. Programming submitted for placement on the GAVOD System shall be placed on and available for viewing from the GAVOD System within forty-eight (48) hours of receipt of said programming. The hardware and software shall be in all respects of the same 29 or better technical quality as the hardware and software utilized by the Grantee in the provision of any other video on demand services offered over the Cable System, and shall be provided, and upgraded at Grantee's cost, when new hardware or software is utilized on Grantee's Cable System for other video on demand services. Grantee shall provide reasonable technical assistance to allow for proper use and operation when encoding hardware or software is installed or upgraded at the Grantor's facilities. To ensure compatibility and interoperability, the Grantee at its cost shall supply and maintain all necessary hardware and software to encode, transmit and/or transfer Government Access Programming from the Grantor to the GAVOD System. The Grantor shall be responsible for all monitoring of any equipment provided under this Section and notifying Grantee of any problems. Grantee at its cost shall provide all technical support and maintenance for the equipment provided to the Grantor. After notification of any equipment problems, Grantee shall diagnose and resolve the problem within forty-eight (48) hours. Major repairs which cannot be repaired within the forty-eight (48) hour timeframe shall be completed within seven (7) days' notice, unless due to force majeure conditions, a longer time is required. Major Repairs are those that require equipment to be specially obtained in order to facilitate the repairs. The quality of signal and the quality of service obtained by a Subscriber utilizing the GAVOD Service shall meet or exceed the quality standards established for all other programming provided by the Grantee and as established elsewhere in this Agreement. High Definition Access Channel: Upon no less than ninety (90) days written notice from the County to Grantee, one of the PEG Channels being provided by Grantee pursuant to this Section shall, at the County's option, be provided in high-definition format (with a minimum resolution of 720p or 1080p resolution,the choice of such resolution to be at the County's option,provided such format is being used by Grantee for at least five other high-definition programming services on the System). If the County is not capable of producing and delivering programming in the selected high definition format by the time described in the preceding sentence, then the obligation of Grantee to transmit such programming in said format shall be delayed until such capability is achieved. Noncommercial Use of PEG: PEG Channels are for noncommercial programming to be promoted and administered by the County. Permitted noncommercial uses of the PEG Channels may include, by way of example and not limitation: (i) the identification of financial supporters similar to what is provided on public broadcasting stations; or (ii) the solicitation of financial support for the provision of PEG programming for charitable, educational or governmental purposes; or (iii) programming offered by accredited, non-profit, educational institutions which may offer telecourses over a PEG Channel. PEG Signals: Any and all costs associated with any modification of the PEG Channels or signals after the PEG Channels/signals leave the.Access provider's side of the fiber termination panel, or any designated playback center, shall be borne entirely by Grantee including the cost for installing and maintaining the return line from the County. Signal Transport: Grantee will transport PEG programming from Grantor's playback facilities, or the playback facilities of the Access providers to the Grantee's Headend free of charge. 30 PEG Signal — Technical Support from Grantee: Within 24 hours of a call from the County to Grantee identifying a technical problem and requesting assistance, Grantee will provide technical assistance or diagnostic services to determine whether or not a problem with a PEG signal is the result of matters for which Grantee is responsible, and if so, Grantee will take prompt corrective action. If the problem persists and there is a dispute about the cause, then the parties shall meet with engineering personnel from Grantee and the County in order to determine the course of action to remedy the problem. Relocation of Grantee's Headend: In the event Grantee relocates its Headend, Grantee will be responsible for replacing or restoring the existing dedicated connection at Grantee's cost so that all the functions and capacity remain available, operate reliably and satisfy all applicable technical standards without additional costs to the County. No Offset: The Grantee agrees that it will not take the cost of operating and maintaining the Access facilities or PEG Channels as an offset against its Agreement Fee obligation. 9.2 Triggers for Additional Access Channels Pursuant to Section 9.1 (Access Channels), the County may require Grantee to make available one additional activated Access Channel on the digital tier when the Access Channel required by Section 9.1 is used for Locally Scheduled Original Programming five (5) hours a day, Monday through Friday during any consecutive eight(8)week period. Grantee shall make available, upon written request within six (6)months the additional Access Channel on the digital tier for Access Programming purposes. The County must provide Grantee with written documentation evidencing the usage meets the threshold requirement. The programming of an additional Access Channel required herein generally will contain distinct and non-repetitive programming of the other Access Channel, but may include repetition of some programming and filler. Grantor acknowledges that some Video Programming Services may be removed to make room for the additional Access channel. 9.3 Management and Control of Access Channels A) Grantor may authorize Designated Access Providers to control, operate, and manage the use of any and all Access facilities provided by Grantee under this Agreement, including, without limitation, the operation of Access Channels. The Grantor or its designee may formulate rules for the operation of the Access Channels, consistent with this Agreement. Nothing herein shall prohibit the Grantor from authorizing itself to be a Designated Access Provider. B) Grantee shall cooperate with Grantor and Designated Access Providers in the use of the System and Access facilities for the provision of Access Channels. 9.4 Underutilized Access Channels Grantee and the Grantor 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 31 on Access Channels. If Grantee believes that any Access Channel has underutilized time, Grantee may file a request with the Grantor to use that time. The Grantor shall in its sole and absolute discretion render a decision regarding the matter within sixty(60) days of receiving the request. Should the Grantor 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. 9.5 Access Channel Relocation Grantee will use reasonable efforts to minimize the movement of Access Channel assignments. Grantee shall provide to the Grantor a minimum of sixty(60) days notice, and use its best efforts to provide ninety (90) days notice, prior to any relocation of its Access Channels, unless the change is required by federal law, in which case Grantee shall give the Grantor the maximum notice possible. If the change is not required by Federal Law, Grantee shall provide notice to its subscribers and do Public Service Announcements in connection therewith. If a PEG Channel is going to be relocated or moved, Grantee shall have the PEG Channel relocated within the same channel grouping as broadcast channels and CSPAN. If the Grantee decides to change a channel designation for a PEG Channel, it shall reimburse the County and/or the PEG users for any costs incurred for purchasing or modifying any equipment or for making logo changes necessitated by the channel designation changes. Alternatively, the Grantee may choose to supply such equipment itself, provided such equipment is satisfactory to the County or PEG users. Grantee agrees to limit movement of the PEG Channels to no more than once every three (3)years. 9.6 Access Interconnections A) Grantee shall not object to or impede any connection established by the County or a Designated Access Provider, or a competing provider, whether on the property of the County or a Designated Access Provider or other property by means of which a competing provider obtains access solely to the PEG Access Channels, nor shall the Grantee object to or impede the transmission of such PEG Access Channel signals by any competing provider. B) It is Grantee's responsibility to ensure that any signals it provides on a return path to a County facility meet FCC technical standards. It is not the Grantee's responsibility to ensure that any signals provided by another cable operator meet industry standards. C) Grantee or its affiliates, at no cost to Grantor, shall continue to maintain the existing infrastructure utilized for the transport of the PEG Access Channel signals from the Grantor's point of origination to the dominant incumbent cable television wireline provider at the existing PEG demarcation point, or other property as agreed to between the parties in the Town of Avon until September 30, 2014. 9.7 Access Channels On Lowest Tier Grantee shall maintain or provide for the government Channel the current assignment of Channel 18 as designated on the Grantee's Cable System on the date of execution of this Agreement. 32 The initial Access Channel provided to Subscribers under this Agreement shall be included by Grantee on the lowest Tier of Cable Service offered by Grantee on its System. If an additional Access Channel is provided as a result of Grantor meeting the trigger requirements in Section 9.2, it will be provided on the digital tier. Similarly, the Scrambled Digital Channel will be on the digital tier. 9.8 Technical Quality The Grantee shall maintain at the same level of technical quality and reliability all Access Channels and Interconnections and the GAVOD Service as required by FCC standards and this Agreement. 9.9 Grantee's Connection With Grantor for PEG Programming A) Grantee shall, at its expense, maintain a dedicated 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 uninterrupted distribution of Access programming to Subscribers on the Access Channel. Grantee shall provide pathway for the transmission for at least one active channel meeting FCC standards) from 500 Broadway in order to enable live coverage from this County building. Grantee at its cost and expense, shall maintain a dedicated line from its Headend to 500 Broadway along with any necessary equipment to transmit Governmental programming on the line back to the Headend. Grantor acknowledges that these costs shall be fully recovered by Grantee pursuant to Section 3.1. Upon written request from the Grantor, Grantee shall construct and maintain additional lines from the County to other locations within the Agreement Area, for purposes of delivering Access programming to its Subscribers. This includes, but is not limited to Grantee constructing and maintaining a line from any other specified locations within the Agreement Area that are within a Standard Installation. Except for the line provided by Grantee to 500 Broadway all line construction costs shall be paid by the Grantor at a cost and upon a time schedule mutually agreed to between the Grantor and Grantee. Grantee may require that a reasonable deposit of the estimated project cost be paid in advance. B) After satisfactory completion of work requested by the Grantor for which the Grantor is to reimburse the Grantee and upon submission by Grantee, in such form as may be requested by the Grantor, of a proper invoice for payment of the cost reasonably incurred and accompanied by such evidence in support thereof as may be reasonably required by the Grantor, the Grantor agrees to make payment for the cost reasonably incurred up to the agreed cost for the work and for any change order or change in scope requested by Grantor;provided, however, that all payments shall be subject to adjustment for any amount found upon audit or otherwise to have been improperly invoiced. All work shall be performed in a cost-effective manner to minimize the costs to the Grantor. Notwithstanding the foregoing, Grantor retains the right to contract with other Persons for lines that are not constructed by Grantee. 33 SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION 10.1 Construction The Grantee shall be bound and abide by Eagle County Land Use Regulations and permitting standards of Generally Applicable Local, State and Federal Law as they exist today or are hereafter amended in the future and shall obtain any necessary and required Generally Applicable Local, State and Federal Permits. To the extent there are any inconsistencies, the more stringent regulations and requirements shall control. Subject to Generally Applicable laws, regulations, resolutions and ordinances of Grantor and the provisions of this Agreement, Grantee shall perform all maintenance, construction, repair, upgrade and reconstruction necessary for the operation of its System. To the extent practicable and economically feasible, Grantee's construction and location of its facilities shall be behind sidewalks and shall not involve Grantee making street cuts. All construction and maintenance of any and all of Grantee's facilities within Rights-of-Way shall, regardless of who performs the construction, be and remain Grantee's responsibility. Grantee shall apply for, and obtain, all permits necessary for construction or installation of any of its facilities and for excavating and laying any of its facilities within the Rights-of-Way. Grantee shall pay all applicable fees upon issuance of the requisite construction permits by Grantor to Grantee. Payment of all applicable fees upon issuance of the requisite construction permits shall be in addition to the Agreement Fee and any other payments or obligations of Grantee required in this Agreement. 10.2 Location of Facilities Prior to doing any work in the Right-of-Way, Grantee shall obtain necessary permits, take all actions required by ECLUR, and do all necessary locates required by law. Within three (3) business days, unless otherwise specified in federal, State or local regulations, after the Grantor or any franchisee, permittee or licensee of the Grantor 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; B) 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. 10.3 Restoration of Rights-of-Way A) Whenever Grantee disturbs the surface of any Rights-of-Way for any purpose, Grantee shall promptly restore the Rights-of-Way to a condition as good as or better than its prior condition. When any opening is made by Grantee in a hard surface pavement in any Rights- 34 of-Way, Grantee shall promptly refill the opening and restore the surface as required by its Public Way permit. B) In accordance with Eagle County Land Use Regulations as they now exist or are hereafter amended, if Grantee excavates the surface of any Rights-of-Way, Grantee shall be responsible for restoration in accordance with applicable regulations regarding the Rights-of- Way and its surface within the area affected by the excavation. Grantor may, after providing notice to Grantee, refill or repave any opening made by Grantee in the Rights-of-Way, and the expense thereof shall be paid by Grantee. Grantor may, after providing notice to Grantee, remove and repair any work done by Grantee that, in the determination of Grantor, does not conform to applicable code. The cost thereof, including the costs of inspection and supervision shall be paid by Grantee.All excavations made by Grantee in Rights-of-Way shall be properly safeguarded for the prevention of accidents. All of Grantee's work under this Agreement, and this Section in particular, shall be done in strict compliance with all Generally Applicable rules, regulations, resolutions and ordinances of Grantor. Grantee shall follow standard industry practice in the burying of drops provided, however, drops shall be buried to depths in conformance with the County regulations, resolutions or other requirements and if permits and fees are required by the Grantor in connection with burying drops or lines related thereto, then permits shall be obtained from and fees shall be paid to the County. It is further understood that since Grantee, its contractors, subcontractors or agents have or will be burying drops at such depths, the County shall not be responsible for cutting buried drops or lines related thereto of Grantee in Rights-of- Way or on private property so long as the County complies with applicable state or local locating requirements. 10.4 Maintenance and Workmanship 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 Notification Center of Colorado, or other similar or successor organization designated to coordinate underground equipment locations and installations. Grantee shall abide by Colorado's Underground Utilities" statutes and will further comply with and adhere to local procedures, customs and practices relating to the one call locator service program. 35 E) 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. Grantee shall give reasonable notice to private property owners of construction work in adjacent Rights-of-Way. F) Interruptions to be minimized. The Grantee shall schedule maintenance, which may cause degradation or interruption to services provided, on its System at times that will minimize the impact of interruptions in service to Subscribers. 10.5 Acquisition of Facilities Upon Grantee's acquisition of facilities in any Rights-of-Way, or upon the addition or annexation to the County of any area in which Grantee owns or operates any facility, Grantee shall, at Grantor's request, submit to Grantor a statement describing all facilities involved, whether authorized by agreement, permit or other prior right, and specifying the location of all such facilities to the extent Grantee has possession of such information. Such facilities shall immediately be subject to the terms of this Agreement. 10.6 Reservation of Rights-of-Way Nothing in this Agreement shall prevent Grantor or public utilities from constructing any public work or improvement. If any of Grantee's System interferes with the construction or repair of any Rights-of-Way or public improvement, including construction, repair or removal of a sewer or water main, Grantee's System shall be removed or relocated in the manner Grantor shall direct. Any and all such removal or relocation shall be at the expense of Grantee in accordance with applicable law. In the case of a joint relocation project, Grantee shall be responsible for the cost of relocating its facilities. All such removal or relocation shall be preceded by sixty (60) days written notice or such additional time as may be provided by Grantor. Should Grantee fail to remove, adjust or relocate its facilities by the date established by Grantor's written notice to Grantee, Grantor may effect such removal, adjustment or relocation, and the expense thereof shall be paid by Grantee. A) Movement of System for and by Grantor. The Grantor may remove or disconnect Grantee's facilities and equipment located in the Right-of-Way or on any other property of the Grantor in the case of fire,disaster or other emergency. Except during an emergency,the Grantor shall provide reasonable notice to Grantee prior to taking such action and shall provide Grantee with the opportunity to perform such action. Following notice by the Grantor, Grantee shall remove, replace, relocate, modify or disconnect any of its facilities or equipment within any Right-of-Way, or on any other property of the Grantor, except that the Grantor shall provide at least sixty (60) days' written notice of any major capital improvement project that would require the removal, relocation, replacement, modification or disconnection of Grantee's facilities or equipment. If the Grantee fails to complete this work within the time prescribed and to the Grantor's satisfaction, the Grantor may cause such work to be done and bill the cost of the work to the Grantee. Grantee shall remit payment to Grantor within thirty (30) days of receipt of an itemized list of those costs. 36 B) Movement for Other Permittees. 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 cost of such temporary change must be paid by the permit holder, and Grantee may require the estimated payment in advance. C) 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 unless the emergency situation requires immediate action, 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. 10.7 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, without delay or expense to Grantor, remove its facilities 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 37 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. 10.8 Removal of Discontinued Facilities Whenever Grantee intends to discontinue using any of its facilities within the Rights-of-Way,Grantee shall submit for Grantor's approval 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 Grantor allow it to remain in place. Notwithstanding Grantee's request that any suchfacilityremaininplace, Grantor may require Grantee to remove the facility from the Rights of Way or modify the facility to protect the public health, welfare, safety and convenience, or otherwise serve the public interest. Grantor may require Grantee to perform a combination of modification and removal of the facility. Grantee shall complete such removal or modification in accordance with a schedule set by Grantor. Until such time as Grantee removes or modifies the facility as directed by Grantor, or until the rights to and responsibility for the facility are accepted by another Person having authority to construct and maintain such facility, Grantee shall be responsible for all necessary repairs and relocations of the facility, as well as maintenance of the Rights-of-Way, in the same manner and degree as if the facility were in active use, and Grantee shall retain all liability for such facility. If Grantee abandons its facilities, Grantor may choose to use such facilities for any purpose whatsoever including, but not limitedto,Access Channel purposes. 10.9 Hazardous Substances A) Grantee shall comply with all applicable State and federal laws, statutes, regulations and orders concerning hazardous substances within the Rights-of-Way. B) Grantee shall maintain and inspect its System located in Rights-of-Way. Upon reasonable notice to Grantee, Grantor may inspect Grantee's facilities in Rights-of-Way todetermineifanyreleaseofhazardoussubstanceshasoccurred, or may occur, from or related to Grantee's System. In removing or modifying Grantee's facilities as provided in this Agreement, Grantee shall also remove all residue 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. 10.10 Undergrounding of Cable A) Wiring. 1) Where electric or telephone utility wiring is installed underground at the time of System construction, or when any of such wiring is subsequently placed underground, all System lines, wiring and equipment shall also be placed underground with other wireline service consistent with those policies related to telephone and electric utilities and in accordance with applicable law. Related System equipment, such as pedestals, must be placed in accordance with 38 applicable County Code requirements and rules and in a manner that allows Grantee to maintain its signal integrity in accordance with FCC requirements. In areas where both electric and telephone utility wiring are 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. B) 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 generallyavailablefromsourcesotherthantheCountyforsuchrelocationtoallusersoftheRights-of- Way. Placing facilities underground does not preclude the use of ground-mounted appurtenances. C) Where electric, telephone or other above-ground utilities are installed underground at the time of Cable System construction or upgrade, or when any of 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 generallyavailablefromsourcesotherthantheCountyforsuchrelocationtoallusersoftheRights-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 not install aerial cable, and when a property owner or resident requests underground installation and agrees to bear the additional cost in excess of aerial installation then the property owner or resident shall pay for such undergrounding.NothingcontainedinthisSectionshallrequireGranteetoconstruct, operate, and maintain underground any ground-mounted appurtenances. 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 after obtaining necessary permits 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 theCountyEngineer. 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 utilityfacilitiesmustbeprovideduponwrittenrequestfromtheCounty. 1) The Grantee shall utilize existing poles and conduit wherever possible. 2) 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 Grantor or any other Person. 3) The Grantee and the Grantor recognize that situations may occur in the future where the Grantor may desire to place its own cable or conduit for Fiber Optic cable in trenches or bores opened by the Grantee. Therefore, if the Grantee further upgrades its Cable 39 System, the Grantee shall submit these plans to the Grantor in accordance with the Grantor's permitting process so that such opportunities may be explored. However,nothing set forth herein shall obligate the Grantee to slow the progress of any future upgrade of the System to accommodate the Grantor. In addition, the Grantee agrees to cooperate with the Grantor in any other construction by the Grantee that involves trenching or boring. If sufficient space is reasonably available and there is no threat of degradation to Grantee's Cable System,the Grantee shall allow the Grantor to lay its cable, conduit and Fiber Optic cable in the Grantee's trenches and bores, provided the Grantor shares proportionately in the cost of trenching and boring on the same terms and conditions as the Grantee. The Grantor shall be responsible for maintaining its respective cable, conduit and Fiber Optic cable buried in the Grantee's trenches and bores under this paragraph. 4) The Grantor shall not be required to obtain easements for the Grantee. 5) The Grantee shall participate with other providers in joint trench projects to relocate its overhead facilities underground and remove its overhead facilities in areas where some or all utilities are being converted to underground facilities in accordance with state law. To the extent technically feasible, relocation of overhead facilities underground shall be completed within ninety (90) days (or such other period of time provided by County Code) in areas where electric or telephone utilities are being converted to underground facilities. F) Repair and Restoration of Property. 1) The Grantee shall protect public and private property within the Rights-of- Way from damage. 2) If public property is disturbed or damaged by Grantee arising out of or in connection with the provision of Cable Service, the Grantee shall restore the property to its former condition. Rights-of-Way or other Grantor property shall be restored in a manner and within a timeframe approved by the Grantor's County Engineer or his or her designee. If restoration of Rights-of-Way or other property of the Grantor is not satisfactorily performed within a reasonable time, the County Engineer may, after prior written notice to the Grantee, or without notice where the disturbance or damage may create a risk to public health, safety or welfare, cause the repairs to be made at the Grantee's expense and recover the, 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 issue payment to the Grantor. 10.11 Codes Grantee shall strictly adhere to all County Codes, including but not limited to, building and zoning codes currently or hereafter in effect. Grantee shall arrange its lines, cables and other appurtenances, on both public and private property, in such a manner as to cause no unreasonable interference with the use of said public or private property by any Person. In the event of such interference, Grantor may require the removal or relocation of Grantee's lines, cables and other appurtenances from the property in question at Grantee's cost and expense. 40 10.12 Construction and Use of Poles Whenever feasible, Grantee shall use existing poles when the installation of facilities above- ground is permitted. 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 streets for the purpose of placing, erecting, laying, maintaining, repairing and removing poles, conduits, supports for wires and conductors, and any other facility needed for the maintenance or extension of Grantee's System. All poles of Grantee shall be erected between the curb and the sidewalk unless otherwise designated by the proper authorities of Grantor, and each pole shall be set whenever practicable at an extension lot line. Grantor shall have the right to require Grantee to change the location of any pole within Rights- of-Way when, in the opinion of Grantor, the public health, safety or welfare requires such change, and the expense thereof shall be paid by Grantee. 10.13 Tree Trimming Upon obtaining a written permit from Grantor, if such a permit is required, Grantee may prune or cause to be pruned, using proper pruning practices in accordance with such permit, any tree in the Rights-of-Way that interferes with the System. 10.14 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 its cable drops are properly bonded and grounded at the home, consistent with applicable code requirements. All non-conforming or nonperforming 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, Generally Applicable, resolutions, ordinances, laws and regulations so as not to interfere in any manner with the right 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, 41 fences or boarding, the bounds of which, during periods of dusk and darkness, shall be clearly marked. 10.15 Safety Under any circumstances regarding operation or use of the System that poses or involves public health, safety or welfare hazards, peril or danger or property hazards, Grantee shall take steps and act expeditiously to rectify such situations until conclusion. 10.16 GIS Mapping Grantee shall comply with any Generally Applicable ordinances, rules and regulations of the County regarding geographic information systems (GIS) mapping for users of the rights-of-way and upon thirty(30)days written request,provide copies of Grantee's route maps to the County. Grantee shall maintain maps and GIS data of the System or the functional equivalent of the System, and make them available to the County for inspection. Drawings or their functional equivalent shall be updated as changes occur in the System. The Grantee shall provide to the County a copy of GIS data and precise inventories showing the location of the Grantee's facilities in the streets and Rights-of-Way within the Agreement Area. All GIS data shall be delivered to the County in AutoCAD format. 10.17 System Facilities—Equipment and Services A) System Characteristics: The Grantee's System shall, at all times during the Agreement term, meet or exceed the following requirements: The System shall be capable of continuous twenty-four (24) hour operation without severe material degradation of service quality except during extremely inclement weather or immediately following extraordinary storms that adversely affect utility services or damage major System components. B) Status Monitoring: Grantee shall utilize status monitoring of the System which can continually monitor the System for signal quality on the forward and return spectrums of the System. In addition, the Grantee shall maintain status monitoring for all power supplies in its headend(s) and hub(s) as well as the distribution System. Status monitoring shall be capable of notifying the Grantee, 24/7 of System problems including utility power outages that will negatively affect its Subscribers. C) Periodic Performance Evaluation: The County may schedule periodic meetings with Grantee to evaluate the performance of the Grantee, or to discuss the integration of future technologies, other plans or operations of the Grantee or any aspect of the Grantee's System. The Grantee shall cooperate with the County in any such evaluation. During the course of such evaluations, topics that may be discussed include but are not limited to: Cable Service Rates, Agreement Fees, Free or Discounted Cable Services, System Performance, Cable Services Provided, Programming Offered, Customer Complaints and Line Extension Policies; provided 42 that nothing herein shall be construed as requiring the renegotiation of this Agreement or any term or provision herein. 10.18 Right-of-Way Meetings Subject to 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. 10.19 Compliance with Applicable Codes A) County Construction Codes. In addition to Subsection 10.11, Grantee shall comply with all Generally Applicable laws including, without limitation, the ECLUR, the Uniform Building Code and other building codes, the Uniform Fire Code, the Uniform Mechanical Code, and zoning codes and regulations as well as Generally Applicable resolutions, laws and regulations and State and Federal laws. 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. 10.20 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 Generally Applicable resolutions, ordinances, laws and regulations including the ECLUR as it may be amended from time to time and in a manner that causes the least interference with the rights and reasonable convenience of property owners and residents. Grantee's Cable System shall he 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. 10.21 Prevent Injury/Safety 43 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 barriers, fences or boarding,the bounds of which, during periods of dusk and darkness, shall be clearly designated by warning lights. 10.22 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. 10.23 Burial Standards A) Depths. Unless otherwise required by law, Grantee shall comply with the following burial depth standards in accordance with Generally Applicable resolutions, ordinances, laws and regulations and the ECLUR. 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 six 6) inches. Feeder lines and lines within Rights-of-Way shall be buried at a minimum depth of at least twenty four(24) inches. Trunk lines shall be buried at a minimum depth of thirty-six (36) inches. Fiber Optic cable shall be buried at a minimum depth of thirty-six (36) inches. B) Timeliness. Cable drops installed by Grantee to residences shall be 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. 10.24 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. 10.25 Prewiring 44 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. 10.26 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. B) 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 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. 10.27 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, manhole or other such facilities in Grantee's Cable System. 3) "Duct" means a single enclosed raceway for cables, Fiber Optics or other wires. 45 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 and the County's strong preference for cable and utility providers sharing Ducts and 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. 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 costs the Licensee's attachments cause Grantee to incur. 46 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. 10.28 Discontinuing Use/Abandonment of Cable System Facilities In addition to the requirements of Section 17, whenever Grantee intends to discontinue using any of its facilities 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 may require Grantee to remove its 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. The County may require Grantee to perform a reasonable combination of modification and removal of its 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. SECTION 11. SYSTEM DESIGN AND TESTING 11.1 Subscriber Network A) Transition from the existing Cable System to the PRISM Cable System shall commence by January 1, 2014 and Grantee shall use good faith efforts in an attempt to complete the transition within six (6) months thereafter. Upon completion of the transition, Grantee shall provide written notice to the Grantor. Within one hundred eighty (180) days from January 1, 2014 subject to availability of equipment and technical personnel to effectuate the transition, the Cable System shall be capable of delivering one hundred eighty (180) Channels of Video Programming services to Subscribers currently marketed as "PRISM", provided that the Grantee reserves the right to use the bandwidth in the future for other uses based on market factors. B) Equipment must be installed so that all closed captioned programming received by the Cable System shall include the closed caption signal so long as the closed caption signal is provided consistent with FCC standards. Equipment must be installed so that all signals received in stereo are retransmitted in stereo. C) Grantee acknowledges that the minimum Cable System design and performance requirements set forth in this Agreement are enforceable, to the extent allowed by law. 47 D)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. 11.2 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. The County shall have the full authority permitted by applicable law to enforce compliance with applicable technical standards. 11.3 Similarly Situated Grantee Systems Grantee shall, upon written request of the County, provide detailed information to the County about Cable Services offered in "similarly situated" cable systems as the Cable System in the County. For purposes of this subsection, "similarly situated" Cable Systems shall mean the Grantee's Cable Systems operating within towns, cities or counties in Garfield, Pitkin, Summit, and Eagle Counties. If such Cable Services are not also being offered on Grantee's Cable System in the County, Grantee shall provide information on why such Cable Services are not being offered in the County and the cost to supply such Cable Services. If the identified Cable Services are being offered to Subscribers in these"similarly situated" Cable Systems,the County may require that the Grantee make available such Cable Services on the Cable System within the County. Should the County determine that the Grantee shall commence provision of such Cable Services, the County and Grantee shall negotiate a schedule for the deployment that takes into consideration the impact on Subscriber rates, the ability of the Grantee to recover the cost of such increased capacity or Cable Services over the remaining life of the Agreement from the incremental revenue derived from such additional Cable Services and the financial condition of the Grantee. In addition, 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 the demonstrated community needs. Other than as provided by law, 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. SECTION 12. SCRAMBLED DIGITAL CHANNEL A) Upon four (4) months written notice from Grantor to Grantee, Grantee shall provide a Scrambled Digital Channel as provided herein. The bandwidth or channel capacity made available to Grantor for the Scrambled Digital Channel shall not exceed that necessary for any other standard digital channel and is not intended to provide bandwidth or channel capacity equivalent to that needed for a high definition channel. Grantee shall provide to Grantor up to twenty (20) converter boxes and Grantee shall provide associated necessary transmission equipment at Grantee's Headend facility to allow for origination from one (1) County facility. Grantor acknowledges that these costs of Grantee will be recovered by Grantee. If the County desires the capability to originate programming from more than one (1) County facility, then the County shall be responsible for providing any equipment necessary for such programming at Grantee's Headend facility. The County shall be responsible for all inside wiring at each facility along with necessary video monitors or television sets. 48 B) The Scrambled, Digital Channel shall meet performance specifications required by the FCC and if none exist, shall be at a signal quality level at least consistent with the other digital Channels on Grantee's digital Tier. If the signal quality of the Scrambled Digital Channel does not appear to be of the same quality as commercial digital Channels on the Cable System, Grantee shall use its best efforts to promptly rectify this signal quality until corrected. C) Access to the Scrambled Digital Channel will be limited to the County by way of uniquely coded converters or other methods that Grantee may utilize such that Grantee's Subscribers shall not have the ability to view or hear content provided on the Scrambled Digital Channel provided to the County pursuant to this Agreement. If the County requires additional converters beyond the twenty provided by Grantee for the Scrambled Digital Channel, then the County shall provide additional converters at its expense, as well as any additional equipment required in Grantee's Headend facility to transmit content over the Scrambled Digital Channel to such additional locations. D) To the extent allowed by State law, the County shall indemnify Grantee for damages resulting from the inadvertent transmission of any content from the Scrambled Digital Channel to Grantee's Subscribers. The foregoing does not imply that the County is waiving any immunity or defenses under the Colorado Governmental Immunity Act. SECTION 13. TECHNICAL STANDARDS 13.1 Technical Performance The technical performance of the Cable System shall meet or exceed all applicable technical standards authorized or required by law, including, without limitation, FCC 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. 13.2 Inspection of Construction Grantor shall have the right to inspect any construction or installation work performed under this Agreement and to charge Generally Applicable inspection fees therefore. If an unsafe condition is found to exist, the Grantor, in addition to taking any other action permitted under applicable law, may order Grantee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition within the time specified by Grantor. The Grantor has the right to correct, inspect, administer and repair the unsafe condition if Grantee fails to do so within the time specified, and to charge Grantee therefor. 13.3 Cable System Performance Testing A) Grantee shall, at its expense, perform all tests on its Cable System required by the FCC and shall maintain written records of its test results. Upon request, all FCC required 49 technical performance tests may be witnessed by representatives of the County. Copies of such test results will be provided to the County upon request. B) All required technical performance or other System tests shall be at the expense of the Grantee and may be witnessed by representatives of the County. Upon request, Grantee will notify the County before any required technical proof-of-performance or other testing occurs. C) Grantee shall promptly take such measures as are necessary and diligently continue the same until completion in order to correct any performance deficiencies fully and to prevent their recurrence. Grantee's failure to correct deficiencies identified through this testing process shall be a violation of this Agreement. Sites shall be re-tested within five (5) days following correction until correction has been confirmed and satisfactory results are obtained. 13.4 Additional Tests If there exists a verifiable and documented pattern of poor technical performance or quality on the Cable System, the County may upon thirty (30) days prior written notice, require Grantee to conduct performance testing on additional test points located within the County. Grantee shall fully 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: 1) The nature of the complaint or problem that precipitated the special testing 2) the Cable System component tested; 3) the equipment used and procedures employed in testing; 4) the method, if any, in which such complaint or problem was resolved; and 5) any other information pertinent to said tests and analysis that may be required. SECTION 14. SERVICE EXTENSION A) Whenever Grantee receives a request for service from a potential Subscriber within the County located within four thousand (4,000) feet of an activated Remote Terminal, Grantee shall extend its Cable System to such potential Subscriber(s) at no cost to said potential Subscriber(s). In general, except as otherwise provided herein, Grantee shall install Cable Service within seven (7) days of a request by any Person requesting a Standard Installation within the Agreement Area. For purposes of this Section, a request shall be deemed made on the date of signing a service agreement, receipt of funds by Grantee and receipt of a written request. Grantee shall provide such service with no line extension charge for a Standard Installation. No customer shall be refused service arbitrarily. However, for unusual circumstances, such as a non- Standard Installation, Grantee is permitted to refuse service, unless customer pays Grantee's Incremental Costs. 50 B) Subject to Section 14(A) above, the Grantee shall provide Cable Service to Multiple Dwelling Units in accordance with an agreement with the property owner or owners, this Agreement and all applicable laws; it being understood, however, that Grantee is under no obligation to provide service to dwelling units where there are homeowner's associations or metropolitan districts that do not allow access to Grantee or where another cable operator is providing Cable Service. C) Grantee shall not arbitrarily refuse to provide Cable Services to any Person within its Agreement Area, provided they are within 4,000 feet of an activated DSLAM. Subject to Section 14 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 4.1, 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 Section 14. SECTION 15. STANDBY POWER AND EMERGENCY ALERT SYSTEM 15.1 Standby Power Grantee shall provide standby power generating capacity at the System Headend capable of providing at least twelve (12) hours of emergency operation. Grantee shall maintain standby power system supplies that will supply back-up power of at least two (2) hours duration throughout the distribution networks, and four(4)hours duration at all nodes and hubs. 15.2 Emergency Alert Capability A) In accordance with, and at the time required by, the provisions of FCC Regulations or other federal or state requirements, Emergency Alert System ("EAS") implementation will be accomplished in compliance with the EAS Plans that apply to the County and to be in compliance with or further Homeland Security requirements or applications. B) Grantee shall ensure that the EAS system is functioning properly at all times. It will test the EAS system periodically, in accordance with FCC regulations. Upon written request, Grantee will advise the County of the testing schedule so that the County may be present for the tests. SECTION 16. AGREEMENT BREACHES; TERMINATION OF AGREEMENT 16.1 Procedure for Remedying Agreement Violations A) If Grantor believes that Grantee has failed to perform any material obligation under this Agreement or has failed to perform in a timely manner, Grantor shall notify Grantee in 51 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 Grantor, contesting Grantor's assertion that a default has occurred, and requesting a hearing in accordance with subsection(B),below; 2) Cure the default; or 3) Notify Grantor 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 Grantor in writing and in detail as to the exact steps that will be taken and the projected completion date. Upon five (5) business days' prior written notice, either Grantor or Grantee may call an informal meeting to discuss the alleged default. In such case, if matters are not resolved at such meeting, Grantor may set a hearing 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. B) If Grantee does not cure the alleged default within the cure period stated above, or by the projected completion date under subsection (A) (3), or denies the default and requests a hearing in accordance with subsection (A)(1), or Grantor orders a hearing in accordance with subsection (A)(3), Grantor shall set a public hearing to investigate said issues or the existence of the alleged default. Grantor shall notify Grantee of the hearing in writing and such hearing shall take place no less than seven (7) days after Grantee's receipt of notice of the hearing. At the hearing, Grantee shall be provided an opportunity to be heard, to present and question witnesses, and to present evidence in its defense. At any such hearing, Grantor shall not unreasonably limit Grantee's opportunity to make a record that may be reviewed should any final decision of Grantor be appealed to a court of competent jurisdiction. The determination as to whether a default or a material breach of this Agreement has occurred shall be within Grantor's sole discretion, but any such determination shall be subject to appeal to a court of competent jurisdiction. C) If, after the public hearing, Grantor determines that a default still exists, Grantor shall order Grantee to correct or remedy the default or breach within a minimum of fourteen (14) days of County notification or within such other reasonable timeframe as Grantor shall determine. In the event Grantee does not cure within such time to Grantor's reasonable satisfaction, Grantor may: 1) Assess and collect monetary damages in accordance with this Agreement; and 2) Terminate this Agreement; and 3) Pursue any other legal or equitable remedy available under this Agreement or applicable law. D) The determination as to whether a violation of this Agreement has occurred pursuant to this Section herein shall be within the sole discretion of the Grantor or its designee. Any such determination by Grantor shall be accompanied by a record, to which Grantee's contribution shall not be limited by Grantor (i.e., Grantor shall hear any interested Persons and 52 shall allow Grantee an opportunity to be heard, to cross examine witnesses, to present evidence and to make additions to the hearing record). Any such final determination shall be subject to appeal to a court of competent jurisdiction. Such appeal to the appropriate Court shall be taken within thirty (30) days of the issuance of the final determination of the Grantor. Grantor shall receive notice from Grantee of any appeal concurrent with any filing to a court of competent jurisdiction. 16.2 Alternative Remedies No provision of this Agreement shall be deemed to bar the right of either party 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 either party to recover monetary damages, as allowed under applicable law, or to seek and obtain judicial enforcement of obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. The Grantor specifically does not, by any provision of this Agreement, waive any right, immunity, limitation or protection(including complete damage immunity) otherwise available to the Grantor, its officers, officials, Boards, commissions, agents, or employees under federal, State, or local law including by example Section 635A of the Cable Act. 16.3 Assessment of Monetary Damages A) The County in its discretion may, after notice and opportunity to cure as provided in Section 16.1, charge to and collect the following liquidated damages: 1) For failure to provide data, documents, or information or to cooperate with the County during an application process or System review or as otherwise provided herein, the Liquidated Damages shall be $50.00 per day for each day, or part thereof, such failure occurs or continues. 2) For failure to provide the services and the payments required by this Agreement, including, but not limited to, the implementation and the utilization of the PEG Access Channels,the Liquidated Damages shall be $150.00 per day for each day, or part thereof, such failure occurs or continues. 3) For failure to comply with any of the provisions of this Agreement or Customer service standards, or other County ordinance for which a liquidated damages is not otherwise specifically provided,the liquidated damages shall be $100.00 per day for each day, or part thereof, such failure occurs or continues. B) Each violation of any material provision of this Agreement shall be considered a separate violation for which separate liquidated damages can be imposed. C) In no event may liquidated damages be assessed for a time period exceeding one hundred twenty (120) days. The fact that this Agreement contains Liquidated Damages 53 provisions does not prohibit either party from seeking judicial remedies prior to expiration of said 120 day period. D) The Grantor and the Grantee recognize the delays, expense and unique difficulties involved in proving in a legal proceeding the actual loss suffered by the Grantor as a result of the Grantee's breach of this Agreement. Accordingly, instead of requiring such proof of loss or damages,the Grantor and the Grantee agree that the Grantee shall be liable to the Grantor for the sums set forth above for each day that the Grantee shall be in breach of the specific provisions of this Agreement. Such amounts are agreed by both parties to be a reasonable estimate of the actual damages the Grantor would suffer in the event of the Grantee's breach of such provisions of this Agreement. E) The bond referred to in Section 5.3 may be drawn upon by the County for breach of a material provision after notice and opportunity to cure. The assessment does not constitute a waiver by the County of any other right or remedy it may have under the Agreement or applicable law, including its right to recover from Grantee any additional damages, losses, costs and expenses that are incurred by County by reason of the breach of this Agreement. 16.4 Revocation A) This Agreement may be revoked and all rights and privileges rescinded if a material breach of the Agreement is not cured pursuant to Section 16.1 in the event that: 1) Grantee fails to perform any material obligation under this Agreement; 2) Grantee attempts to evade any material provision of this Agreement or to practice any fraud or deceit upon the Grantor or Subscribers; 3) Grantee makes a material misrepresentation of fact in the negotiation of this Agreement; 4) Grantee abandons the System, or terminates the System's operations; or 5) Grantee fails to restore service to the System after three consecutive days of an outage or interruption in service; except in the case of an emergency or during a force majeure occurrence, or when approval of such outage or interruption is obtained from the Grantor, it being the intent that there shall be continuous operation of the System. 6) Grantee fails to provide the service and the payments required by this Agreement including but not limited to the implementation and the utilization of the PEG Access Channels. 7) Any subsequent Grantee becomes insolvent, unable or unwilling to pay its debts or is adjudged bankrupt, if there is an assignment for the benefit of g p , gn o any subsequent grantee's creditors or all or part of the Cable System is sold in connection with a subsequent grantee under an instrument to secure a debt and is not redeemed by a subsequent grantee within thirty(30)days of said sale. 16.5 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 54 provision or requirement of this Agreement or the enforcement thereof in accordance with the provisions of applicable Federal (including the Cable Act), State and local law. SECTION 17.ABANDONMENT If the Grantee abandons its System during the Agreement term, or fails to operate its System in accordance with any duty to provide continuous service to Subscribers or the County or Schools or libraries as required herein, the provisions of this Agreement and the County Code shall apply and the Grantor, at its option, may operate the System or; designate another entity to operate the System temporarily until the Grantee restores service under conditions acceptable to the Grantor, or until the Agreement is revoked and a new cable operator is selected by the Grantor. If the Grantor designates another entity to operate the System, the Grantee shall reimburse the Grantor for all reasonable costs, expenses and damages incurred, including reasonable attorney fees, court expenses and attributed expenses for work conducted by Grantor's staff or authorized agents. SECTION 18.AGREEMENT TRANSFER Transfer of Ownership or Control A) 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 equitable, or any right, interest or property therein pass to or vest in any person or entity without the prior written consent of the Grantor, which consent shall be by the County Board, acting by ordinance or resolution which consent shall not be unreasonably withheld, delayed or conditioned. B) The Grantee shall promptly notify the Grantor of any actual or proposed change in, or transfer of, or acquisition by any other party of control of the Grantee. The word "control" as used herein is not limited to majority stockholders but includes actual working control in whatever manner exercised. Every change, transfer or acquisition of control of the Grantee shall make this Agreement subject to cancellation unless and until the Grantor shall have consented in writing thereto. C) The parties to the sale or transfer shall make a written request to the Grantor for its approval of a sale or transfer or change in control and shall furnish all information required by law. D) In seeking the Grantor's consent to any change in ownership or control, the proposed transferee or controlling entity shall indicate whether it: 1) Has ever been convicted or held liable for acts involving deceit including any violation of federal, State or local law or regulations, or is currently under an indictment, investigation or complaint charging such acts; 2) Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against the proposed transferee by any court of competent jurisdiction; 55 3) Has pending any material legal claim, lawsuit, or administrative proceeding arising out of or involving a Cable System; 4) Is financially solvent, by submitting financial data including financial statements that are audited by a certified public accountant who may also be an officer of the transferee or controlling entity, and 5) Has the financial, legal and technical capability to enable it to maintain and operate the Cable System for the remaining term of the Agreement. E) The Grantor shall act by ordinance or resolution on the request within one hundred twenty (120) days of receipt of a complete FCC Form 394 application, consistent with applicable law. Subject to the foregoing, if the Grantor fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted unless the requesting party and the Grantor agree to an extension of time. F) Within thirty (30) days of any transfer or sale or change in control, if approved or deemed granted by the Grantor, Grantee shall file with the Grantor a copy of the deed, agreement, lease or other written instrument evidencing such sale or transfer of ownership or control, certified and sworn to as correct by Grantee and the transferee or controlling entity, and the transferee or controlling entity 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, subject to applicable law, and will not be required to file an additional written acceptance. The approval of any change in control shall not be deemed to waive any rights of Grantor to subsequently enforce noncompliance issues relating to this Agreement. For purposes herein to the extent that a change of control involves an entity that was not an Affiliate prior to the contemplated transaction, the County's consent shall be required for such change in control. G) In reviewing a request for sale or transfer or change in control, the Grantor may inquire into the legal,technical and financial qualifications of the prospective controlling party or transferee, and Grantee shall assist the Grantor in so inquiring. The Grantor may condition said sale or transfer or change in control upon such terms and conditions as it deems reasonably appropriate,provided, however, any such terms and conditions so attached shall be related to the legal, technical and financial qualifications of the prospective controlling party or transferee and to the resolution of outstanding and unresolved issues of noncompliance with the terms and conditions of this Agreement by Grantee. H) Notwithstanding anything to the contrary in this subsection, the prior approval of the Grantor shall not be required for any sale, assignment or transfer of the Agreement or Cable System to CenturyLink, Inc. or its Affiliates or to an intra-company entity controlling, controlled by or under the same common control as Grantee, provided that except for CenturyLink, Inc. or its Affiliates the proposed assignee or transferee must give evidence of financial responsibility, if requested in writing, and must agree in writing to comply with all of the provisions of the Agreement. Further, Grantee may pledge the assets of the Cable System for the purpose of financing without the consent of the Grantor;provided that such pledge of assets shall not impair 56 or mitigate Grantee's responsibilities and capabilities to meet all of its obligations under the provisions of this Agreement. SECTION 19. PROHIBITED PRACTICES AND NOTICES 19.1 Preferential or Discriminatory Practices Prohibited Grantee shall not discriminate in hiring, employment or promotion on the basis of race, color, ethnic or national origin, religion, age, sex, sexual orientation, or physical or mental disability. Throughout the term of this Agreement, Grantee shall fully comply with all applicable equal employment and non-discrimination provisions and requirements of federal, State and local laws, and rules and regulations relating thereto. 19.2 Notices Throughout the term of this Agreement, each party shall maintain and file with the other a local address for the service of notices by mail. All notices shall be sent to such respective address, and such notices shall be effective upon the date of mailing. At the effective date of this Agreement: Grantee's address shall be: CenturyTel Broadband Services, LLC d/b/a CenturyLink Public Policy Department 1801 California Street,Floor 10 Denver, Colorado 80202 Grantor's address shall be: Office of the County Attorney Attention: County Attorney Eagle County, Colorado 500 Broadway, P.O. Box 850 Eagle, CO 81631 With Copies to: Eagle County, Colorado 500 Broadway, P.O. Box 850 Eagle, CO 81631 Attention: Finance Department Eagle County, Colorado 500 Broadway, P.O. Box 850 Eagle, CO 81631 Attention: Communications Department 57 SECTION 20. MISCELLANEOUS PROVISIONS 20.1 Cumulative Rights Subject to applicable law, all rights and remedies given to the County by this Agreement or retained by the County herein shall be in addition to and cumulative with any and all other rights and remedies, existing or implied, now or hereafter available to the County, at law or in equity, and such rights and remedies shall not be exclusive, but each and every right and remedy specifically given by this Agreement or otherwise existing or given may be exercised from time to time and as often and in such order as may be deemed expedient by the County and the exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy. 20.2 Binding Effect This Agreement shall be binding upon the parties hereto,their permitted successors and assigns. 20.3 Authority to Amend This Agreement may be amended at any time by written agreement between the parties. 20.4 Venue The venue for any dispute related to this Agreement shall be in the United States District Court for the District of Colorado or in the Eagle County District Court in Eagle, Colorado. 20.5 Governing Laws This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Colorado (as amended), the Cable Act as amended, any applicable rules, regulations, technical standards and orders of the FCC, and any other applicable local, State and federal laws, rules, regulations, legislation or orders (as such now exist, are later amended or subsequently adopted), provided, however, that such amendments enacted or modified after the effective date of this Agreement shall be reasonable and not materially modify the terms of this Agreement. 20.6 Captions The captions and headings of this Agreement are for convenience and reference purposes only and shall not affect in any way the meaning or interpretation of any provisions of this Agreement. 20.7 No Joint Venture 58 Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner that would indicate any such relationship with the other. 20.8 Waiver The failure of either party at any time to require performance by the other of any provision hereof shall in no way affect the right of either party hereafter to enforce the same. Nor shall the waiver by either party of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself or any other provision. 20.9 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. 20.10 Compliance with Federal, State,and Local Laws The parties shall comply with applicable federal, state and local laws (of general applicability to all providers of wireline cable service), rules and regulations now existing or hereafter adopted. 20.11 Force Majeure The Grantee shall not be held in default under, or in noncompliance with, the provisions of this Agreement, nor suffer any enforcement or imposition of damages relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the Grantee to anticipate and control, including war or riots, civil disturbances, floods or other natural catastrophes, labor stoppages, slow downs, vandalism, system interference by third parties, power 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. 20.12 Entire Agreement This Agreement represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior oral and written negotiations between the parties. 20.13 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' 59 fees, costs and expenses in connection therewith, in addition to such other relief as the court may deem proper. Provided, however except as provided elsewhere in this Agreement, in the event of litigation where Grantor or Grantee are joined as a party or elect to join in a legal proceeding, Grantor and Grantee shall each pay their own respective attorneys' fees, costs and expenses. 20.14 Action of the County or Grantee In any action by the County or Grantee mandated or permitted under the terms hereof, it shall act in a reasonable, expeditious and timely manner. Furthermore, other than as provided in Section 9.4, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld. 20.15 Reimbursement Within ten (10) days of execution of this Agreement, in connection with the negotiation and drafting of this Agreement, Grantee shall reimburse the Grantor twenty thousand dollars 20,000) which is a portion of Grantor's expenses in connection with the negotiation and drafting of this Agreement. Such payment for reimbursement shall not be offset in the future against any Agreement Fees or other payments required under the terms and conditions of this Agreement. IN WITNESS WHEREOF this Agreement is signed in the name of Eagle County, Colorado this 31st day of December, 2013. BOARD OF COUNTY COMMISSIONERS OF EAGLE/ OUNTY, COLORADO 4 I : . !!/t c,4_ ti Sara J. Fisher ATTES 4 f\ f' .gRVClerktotheBoardcotoar Tea J. Simonton IAIPSTOFORM '' wIU itiC Ct a_vl, County Atto e Y fi, Accepted and approved this 1 i day of December, 2013. owu • __- :r..dband Services, LLC (DBA 4111r LINK) EVP-Public Policy & Government Relations ATTEST:koiut Q aJ, Soffete1y Executive Admin Assistant 60 OFFICE OF THE COUNTY ATTORNEY 970-328-8685 FAX:970-328-8699 www.eagiecounty.us EAGLE COUNTY January 21, 2014 John R. McCormick 1801 California Street Suite 1000 Denver, CO 80202 John: Enclosed is your copy of the fully executed copy of the Cable Television Agreement dated December 17, 2013. Additionally, we have received CenturyTel's reimbursement of$20,000 as detailed in Paragraph 20.15 of the agreement. Sincerely, 44 lane M ie o 11 Assistant Co ty Attorney DM/dlc Enclosure Eagle County Building,500 Broadway, P.O. Box 850, Eagle,Colorado 81631-0850 A® DATE(MM/DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE 06/22/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Marsh USA Inc. PHONE FAX CA License#0437153 IA/C.No.Ext): A/C,No): 1301 5th Avenue,Suite 1900 E-MAIL ADDRESS: Seattle,WA 98101-2682 Attn:Seattle.certrequest@marsh.com/Fax:212-948-4326 INSURER(S)AFFORDING COVERAGE NAIC# J13913-CTL-GAWW-14-15 0113 None INSURER A: Greenwich Insurance Company 22322 INSURED INSURER B:XL Insurance America,Inc. 24554 CenturyLink,Inc.and all subsidiaries,XL Specialty Insurance Company 37885 including but not limited to:Qwest Communications INSURER C: p ty p y International Inc.;Sawis,Inc.;and Embarq Corporation INSURER D: 100 CenturyLink Drive;Mailstop 5TS154 Monroe,LA 71203 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: SEA-002251898-12 REVISION NUMBER:10 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER MM/DDIYYYY) IMM/DD/YYYY) A GENERAL LIABILITY X RGD500033302 09/01/2014 09/01/2015 EACH OCCURRENCE 1,000,000 X DAMAGE TO RENTED 1,000,000 COMMERCIAL GENERAL LIABILITY PREMISES(Ea occurrence) $ CLAIMS-MADE X OCCUR MED EXP(Any one person) $ 10,000 PERSONAL 8 ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS-COMP/OP AGG $ 2,000,000 POLICY JED LOC A AUTOMOBILE LIABILITY X RAD500033402-AOS 09101/2014 09/01/2015 COMBINED SINGLE LIMIT 2,000,000 Ea accident) A X ANY AUTO RAD500033502-MA 09/01/2014 09/01/2015 BODILY INJURY(Per person) $ X ALL OWNED SCHEDULED Auto Physical Damage-Self Insured BODILY INJURY(Per accident) $ AUTOS AUTOS NON-OWNED PROPERTY DAMAGE X HIRED AUTOS x AUTOS Per accident) UMBRELLA LIAB OCCUR EACH OCCURRENCE EXCESS LIAB CLAIMS-MADE AGGREGATE DED RETENTION$ B WORKERS COMPENSATION RWD500032902 AOS 09/01/2014 09/01/2015 X WC STATU- OTH- AND EMPLOYERS'LIABILITY TORY LIMITS ER B ANY PROPRIETOR/PARTNER/EXECUTIVE Y/N RWR500033002 WI 09/01/2014 09/01/2015 E.L.EACH ACCIDENT 1,000,000 OFFICER/MEMBER EXCLUDED? N J N/A 1,000,000 Mandatory in NH)E.L.DISEASE-EA EMPLOYEE $ If yes,describe under 1,000,000 DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ C XS Workers'Compensation/EL RWE500033102-WA 09/01/2014 09/01/2015 Excess of$1,000,000 SIR 1,000,000 C XS Workers'Compensation/EL RWE500033202-OH 09/01/2014 09/01/2015 Excess of$1,000,000 SIR 1,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach ACORD 101,Additional Remarks Schedule,if more space is required) T`f RE:For any and all work performed by Qwest(now CenturyLink)related to placement and/or maintenance and/or operation of telecommunications facilities. RECEIVED The County,its officers,officials,boards,commissions and employees are Additional Insured as respects their interest in the operations of the Named Insured as required by written contract regarding General Liability and Auto Liability.SEP.<,2 20 14 EAGLE 1 'rTTORNEY CERTIFICATE HOLDER CANCELLATION Eagle County SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Eagle County Building THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Attn: Diane Mauriello,Esq.,Assistant County Attorney ACCORDANCE WITH THE POLICY PROVISIONS. 500 Broadway P.0.Box 850 AUTHORIZED REPRESENTATIVE Eagle,CO 81631 of Marsh USA Inc. Cheryll L.Koch A --u..,r5 Klan__ 1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25(2010/05)The ACORD name and logo are registered marks of ACORD