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Home My WebLink AboutR04-040 Comcast Cable Television Agreement~, Commissioner ~? ~ ~~ .. moved adoption of the following esolution: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 04 ~~ RESOLUTION APPROVING THE CABLE TELEVISION AGREEMENT WITH COMCAST OF COLORADO/FLORIDA, INC. AND AUTHORIZING TOM C. STONE, CHAIRMAN OF THE EAGLE COUNTY BOARD OF COUNTY COMMISSIONERS, TO EXECUTE THE SAME. WHEREAS, Comcast of Colorado/Florida, Inc. ("Comcast") desires the use of public right-of- ways for the provision of cable television services in Eagle County, Colorado; and WHEREAS, the Board of County Commissioners for Eagle County ("Board") is charged with the trust of public right-of--ways throughout Eagle County; and WHEREAS, pursuant to the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992 and as further amended by the Telecommunications Act of 1996, as well as applicable Colorado law, the Board possesses the authority to grant agreements to provide cable television services in order to protect the public right-of--ways, further governmental programming, establish customer service standards, and otherwise enhance and provide for the regulation of cable television services in Eagle County; and WHEREAS, Comcast and the Board desire to enter into a Cable Television Agreement, in a form as attached hereto, and the Board desires to authorize its Chairman to execute the Cable Television Agreement with Comcast of ColoradolFlorida, Inc. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO: THAT, the Board of County Commissioners hereby authorizes Tom C. Stone, Chairman, to execute the Cable Television Agreement with Comcast of Colorado/Florida, Inc. which the Board approves. THAT, the Board hereby finds, determines and declares that this Resolution is necessary for the public health, safety and welfare of the residents of the County of Eagle, State of Colorado. MOVED, READ AND ADOPTED by the Board of County Commissione oft a County of Eagle, State of Colorado, at its regular meeting held tho~-day of ~ 804, ATTEST: Clerk to the Board of County Commissioners UNTY OF EAGLE, STATE OF LORADO, by and Throagh Its ARD OF COUNTY COMMISSIONERS By: Tom C. one Chairman ~~ ~~CL~ c ~ ~ ~OLORA~~ Commissioner ~~,~p ~ seconded adoption of the foregoing resolution. having been called, the vote was as follows: Commissioner Stone ~ ~~ Commissioner Gallagher ~~/~,,r~ Commissioner Menconi Q~.co -~.~~. The roll This Resolution passed by ~-~/'~~~J~i~}-- vote of the Board of County Commissioners of the County of Eagle, State of Colorado. EAGLE COUNTY, COLORADO CABLE TELEVISION AGREEMENT WITH COMCAST OF COLORADO/FLORIDA, INC. TABLE OF CONTENTS SECTION 1. DEFINTTIONS AND EXI-EBITS ...................................... .............................................................................. (A) DEFINITIONS ............................................2 ........................................2 .... SECTION 2. GRANT OF AGREEMENT .............................................. ............................................................ 1 Grant 2 ............................................7 ............................................7 . 2.2 2.3 2.4 2 5 .................................. ...................................................... Use of Rights-of--Way ............ Effective Date and Term of Agreement ........................................ Agreement Nonexclusive .............................................................. ........................................... Police Powers ............ ............................................8 ............................................9 ............................................9 .............................................9 . 2.6 2.7 ........................ Grant of Other Agreements .......................................................... Familiarity with Agreement .......................................................... Eff t f Acce tance ...................................... .............................................9 ............................................9 ............................................9 2.8 ec o p ............................... SECTION 3. AGREEMENT FEE PAYMENT AND FINANCIAL CONTROLS ......................... 10 ....... . 10 1 3 Agreement Fee .................................................. ........................ . ..................................... . ... 10 2 3 Payments .................................................................................... ........................................... . i ....... 10 3.3 on ............................ Acceptance of Payment and Recomputat ....................................... .. 10 3.4 Annual Agreement Fee Reports ................................................ ............................................ 3 5 Audits ........ ................................................................................ .............................................. 10 . 11 3.6 Late Payments ........................................................................... .............................................. 3.7 Underpayments .......................................................................... .............................................. 11 3.8 Maximum Agreement Fee ........................................................ .............................................. 11 3.9 Additional Commitments Not Agreement Fees ....................... .............................................. 11 3.10 n, .............................................................................. Tax Liabili ............................................ .. 12 3.11 Financial Records ...................................................................... .............................................. 12 3.12 Payment on Termination ........................................................... .............................................. 12 SECTION 4. ADMINISTRATION AND REGULATION ................ .............................................. 12 4.1 Authority .................................................................................... .............................................. 12 4.2 Rates and Charges ..................................................................... .............................................. 12 4.3 No Rate Discrimination ............................................................ .............................................. 13 4.4 Filing of Rates and Charges ...................................................... .............................................. 4.5 Cross Subsidization .......................................:........................... .............................................. 13 4.6 Reserved Authority ................................................................... .............................................. 13 4.7 Time Limits Strictly Construed ............................................... .............................................. 13 4.8 Agreement Amendment Procedure ........................................... .............................................. 14 4.9 Performance Evaluations .......................................................... .............................................. 14 4.10 Late Fees .................................................................................... .............................................. 14 4.11 Force Majetue ............................................................................ .............................................. 15 SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS .............................................. I S 5.1 Indemnification ................................ ......................................... .............................................. 15 16 5.2 Insurance .................................................................................... .............................................. 5.3 Deductibles/Certificate of Insurance ......................................... .............................................. 17 i i 3 5.4 Collateral ....................................................................... ............ 17 SECTION 6. CUSTOMER SERVICE ............................................................... ............................. 18 6.1 Customer Service Standards .......................................................................... 18 6.2 Subscriber Privacy .................................................................................... .........................18 6.3 Subscriber Contracts ........................ ............................... .......................................................................................18 6.4 Advance Notice to County .......................................................... ...............18 ............................. 6.5 Customer Service Location ................................................................... ..................18 ................ SECTION 7. REPORTS AND RECORDS .......................................................... ..............18 7.1 Open Records ................................................ ............... 7.2 Confidentiality ......................................................................:..................................................18 .....................................................19 7.3 Records Required ....................................................................................................................19 7.4 Annual Reports .......................................................................................................... ..............20 7.5 Copies of Federal and State Reports ................................ ,,,,,,,,,,,,,,,..„.20 ................................... 7.6 Complaint File and Reports ........................................ .................................20 ........................... 7.7 False Statements ............... 7.8 Inspection of Facilities ............................................................................................................21 ......................................................................21 SECTION 8. PROGRAMMING .............................................. ....21 ..................................................... 8.1 Broad Programming Categories ............................ ...................................21 ............................... 8.2 Deletion or Reduction of Broad Programming Categories ......................... .............21 .............. 8.3 Complimentary Cable Service ............................. ........................................22 ........................... 8.4 Obscenity ....................................................................................... ...........................22 ............... 8.5 Parental Control Device ................................... ...........................22 ............................................ 8.6 Continuity of Service Mandatory ....................................................... ...........................23 SECTION 9. PEG ACCESS ...........................'.................................................................................23 9.1 Access Channel .................. 9.2 Capital Contribution ................................................................................................................23 .....................................:.................................23 9.3 Replacement Capital Contributions ............................................... ~ :. ~ ......,.,.,,,,,,,,,,,,,,,,,,,,23 9.4 Management and Control of Access Channel ........................................................................24 9.5 Underutilized Access Channel .......................... .........................................25 ............................. 9.6 Access Channel on Basic Service ...........................................................................................25 9.7 Access Channel Assignments .................................................................................................25 9.8 Relocation of Access Channel ......................................... ..........................25 ............................. 9.9 Technical Quality ............................................................. ...........25 ............................................ 9.10 Change in Technology ............................... ..............25 ...................................................... .11 Information about Access Programming to Subscribers ................ ........................................26 SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION ...............................26 10.1 Right to Construct ........................................................................... ..........26 .............................. 10.2 Right-of--Way Meetings ............................. ..........26 ................................................................... 10.3 General Standard .................................................. ..........26 ......................................................... 10.4 Permits Required for Construction ....................... .........................27 ......................................... 10.5 Emergency Permits ........................................................................................ ....27 ..................... ii f 10.6 Compliance with Applicable Codes ....................................................... ................................27 ..27 10.7 GIS Mapping .......................................................................................... .............................. 27 10.8 Minimal Interference ............................................................................... ................................ 28 10.9 Prevent Injury/Safety ............................................................................... ................................ 28 10.10 Hazardous Substances ............................................................................. ................................ .......28 10.11 Locates ..................................................................................................... ......................... 29 12 10 Notice to Private Property Owners ......................................................... ................................ . 13 10 Underground Construction and Use of Poles ......................................... ................................29 . 14 10 Undergrounding of Multiple Dwelling Unit Drops ................................ ................................30 . 15 10 ............................................................ Burial Standards ................ .......... ................................30 . 16 10 Electncal Bondin ............... ' g .................................................................... ................................30 . 10.17 Prewiring ................................ ................................................................. ................................31 10.18 Repair and Restoration of Property ......................................................... 31 ................................ ..31 10.19 Common Users ........................................................................................ .............................. 33 10.20 Acquisition of Facilities .......................................................................... ................................ 10.21 Discontinuing Use/Abandonment of Cable System Facilities ............... ................................33 22 10 Movement of Cable System Facilities for County Purposes .................. ................................33 . 23 10 Movement of Cable System Facilities for Other Agreement Holders ... ................................34 . 10.24 Temporary Changes for Other Permitees ............................................... ................................34 25 10 Reservation of County Use of Right-of-Way ......................................... ................................34 . 10.26 ....................................................................... Rights-of--Way Vacation .. ................................34 10.27 Tree Trimming ........................................................................................ ................................35 10.28 Inspection of Construction and Facilities ............................................... ................................35 29 10 Codes ..................:................... ................................................................. ................................35 . 10.30 Stop Work ...................................................... ......................................... ................................35 36 10.31 Standards ........................ ......................................................................... ................................ 36 10.32 Work of Contractors and Subcontractors ............................................... ................................ SECTION 11. CABLE SYSTEM CONFIGURATION, TECHNICAL STANDARDS AND TESTING ............................................................................. 11.1 Subscriber Network ............................................. 11.2 County Needs ...................................................... 11.3 Standby Power ..................................................... 11.4 Emergency Alert Capability ................................ 11.5 Technical Performance ........................................ 11.6 Cable System Performance Testing .................... 11.7 Additional Tests .................................................. ................................................................37 ................................................................37 ................................................................37 ....................................................................37 ....................................................................37 ....................................................................3 8 ....................................................................3 8 ....................................................................39 SECTION 12. SERVICE AVAILABILITY AND SERVICE TO SCHOOLS AND PUBLIC BUILDINGS ...........................................................................................39 12.1 Universal Service ....................................................................................................................39 12.2 Service Availability ..............................................................................................39 ................... SECTION 13. AGREEMENT VIOLATIONS ..................................................................................40 13.1 Procedure for Remedying Agreement Violations ..................................................................40 13.2 Revocation ...............................................................................................................................41 iii 13.3 Procedures in the Event of Termination or Revocation ............... .......43 ................................... 13.4 Receivership and Foreclosure ~ ................................................................................................43 13.5 No Monetary Recourse Against the County ..................................................... I3.6 Alternative Remedies ................ . ~ ~~~~ 13.7 Assessment of Monetary Damages ........................................................................................44 ..........44 SECTION 14. AGREEMENT RENEWAL AND TRANSFER ......................... ...........45 14.I Renewal ....................... ~. .................. 14.2 Transfer of Ownership or Control ..........................................................................................45 SECTION 15. SEVERABII.,ITY .............................................................. .......................46 .................. SECTION 16. MISCELLANEOUS PROVISIONS ................................. ...........46 .............................. 16.1 Preferential or Discriminatory Practices Prohibited ...............................................................4b 16.2 Notices ................. 16.3 Cumulative Rights ..................................................................................................................46 . ........................................47 16.4 Venue .......................................................................................................................................47 16.5 Governing Law ....................................................................... . 16.6 Descriptive Headings ..............................................................................................................47 ....................................47 16.7 Publication Costs to be Borne by Grantee ........................................ ...,,,.,,,,,,,,,,,,47 ................... 16.8 Binding Effect .........................................................................................................................48 16.9 No Joint Venture .....................................................................................................................48 16.10 Waiver ........................... _ 16.11 Reasonableness of Consent or Approval ......................................... 48 16.12 Entire Agreement ................................................................. ......................................48 ...................................................48 16.13 Compliance with Federal, State and Local Laws ........................... ........................................ 16.14 Force Majeure ..........................................................................................................................48 16.15 Attorneys' Fees ........................................................................................................................48 iv EAGLE COUNTY, COLORADO AND COMCAST OF COLORADO/FLORIDA, INC. CABLE TELEVISION AGREEMENT This Cable Television Agreement (Agreement) is entered into in Eagle, Colorado, this 30th day of March, 2004, by and between Eagle County, Colorado, hereinafter ("Grantor" or the "County") and Comcast of Colorado/Florida, Inc. hereinafter known as ("Grantee"). Grantor and Grantee 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 full public proceeding affording due process to all parties; and WHEREAS, the public has had adequate notice and opportunity to comment on Grantee's proposal to provide cable television service within the County; and WHEREAS, the Grantor has a legitimate and necessary regulatory role in ensuring the availability of state-of--the-art cable communications service, high technical capability and reliability of Systems in its jurisdiction, the availability of local programming (including governmental access programming) and quality customer service; and WHEREAS, diversity in cable service and local and non-local programming is an important policy goal and the Grantee's System should offer a wide range of programming services; and WHEREAS, flexibility to respond to changes in technology, subscriber interests and competitive factors within the cable service market should be an essential characteristic of this Agreement and both the Grantor and the Grantee will address maximum system flexibility to take advantage of new technology to benefit subscribers and citizens as such technology becomes available; and WHEREAS, the County is authorized by applicable law to grant one or more nonexclusive agreements to construct, operate and maintain cable television systems within the boundaries of the County. NOW, THEREFORE, in consideration of the mutual promises made herein, and other good and valuable consideration as provided herein, the receipt and adequacy of which are hereby acknowledged, Grantor and Grantee do hereby agree as follows: 1 SECTION 1. DEFINITIONS AND EXHIBITS A. DEFINITIONS For the purposes of this Agreement, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. Words not defined shall be given their common and ordinary meaning. The word "shall" is always mandatory and not merely directory. "Access" includes Educational Access and Governmental Access and means the availability for noncommercial use by various governmental and educational agencies, institutions, organizations, groups and individuals in the County, including Grantor and its designees, of capacity on channel or channels on the System to receive and distribute video programming to Subscribers, as permitted under applicable law, including, but not limited to: "Educational Access" means Access where Schools are the primary users having editorial control over programming and services. For purposes of this definition, School means any State accredited educational institution, public or private, including for example, primary and secondary Schools, excluding home Schools. "Governmental Access" means the availability of Channel capacity on the Cable System for noncommercial use by various agencies and institutions, including the County and its designees, and where governmental institutions or their designees aze the primary users having editorial control over programming and services. "Access Channel" means any Channel, or portion thereof, designated for Access purposes or otherwise made available to facilitate or transmit Access programming or services. "Access Fees" means the Capital Contributions paid to the Grantor by the Grantee in accordance with Section 9. "Activated" means the status of any capacity or part of the Cable System in which any Cable Service requiring the use of that capacity or part is available without further installation of system equipment, whether hardware or softwaze. "Affiliate," when used in connection with Grantee, means any Person who owns or controls, is owned or controlled by, or is under common ownership or control with, Grantee. "Agreement Area" means the unincorporated area within the jurisdictional boundaries of the County, and also includes, by way of illustration and not limitation, unincorporated areas where there are Home Owners Associations, Metro Districts, Private Communities and any areas annexed by the County during the term of this Agreement. To the extent that another agreement between the County and affiliates of Grantee (which are currently Comcast of Colorado VI, LLC and Comcast of Colorado VII, LLC) is in existence and in full force and effect, that other agreement with Comcast of Colorado VI, LLC and Comcast of Colorado VII, LLC will govern the terms and 2 conditions between the County and Comcast of Colorado VI, LLC and Comcast of Colorado VII, LLC with respect to Cable Service provided in Edwards, and other unincorporated areas in the County near Avon and Vail so that Grantee is not subject to duplicative requirements. "A~reement Fee" means that fee payable to the County as described in Section 3. "Bad Debt" means amounts lawfully billed to a Subscriber and owed by the Subscriber for Cable Service and accrued as revenues on the books of Grantee, but not collected after reasonable efforts have been made by Grantee to collect the charges. "Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission of local television Broadcast Signals and local Access programming. "Broadcast Si ng_al" means a television or radio signal transmitted over the air to a wide geographic audience, and received by a Cable System by antenna, microwave, satellite dishes or any other means. "Cable Acts" means the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, and as amended by the Telecommunications Act of 1996, and any amendments thereto. "Cable Internet Service" or "Cable Modem Service" means any Cable Service offered by Grantee whereby Persons receive access to the Internet through the Cable System. "Cable Operator" means any Person or group of Persons, including Grantee, who provides Cable Service over the System in the Agreement Area and directly or through one or more Affiliates owns a significant interest in such System or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of the System. "Cable Service" means the one-way transmission to Subscribers of video programming or other programming service, and Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. "Cable System" or "S,ystem" means any facility including Grantee's, consisting of a set of closed transmissions paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a facility that serves Subscribers without using any Right-of--Way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the federal Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a Cable System (other than for purposes of Section 621(c) (47 U.S.C. 541(c)) to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with federal statutes; or (E) any facilities of any electric utility used solely for operating its electric utility systems. 3 "Channel" means a portion of the electromagnetic frequency spectrum which is used in the Cable System and which is capable of delivering a television channel (as television channel is defined by the FCC by regulation). "Commercial Subscribers" means any Subscribers other than Residential Subscribers. "Conn " is Eagle County, Colorado, a body politic and corporate under the laws of the State of Colorado, and all of the unincorporated areas (excluding incorporated municipalities) within its boundaries, as such may change from time to time including by annexations. "County Commissioners" means the Eagle Board of County Commissioners, or its successor, the governing body Eagle County, Colorado. "_Desi~nated Access Provider" means the entity or entities designated now or in the future by the County to manage or co-manage Access Channels and facilities. The County may be a Designated Access Provider. "Downstream" means carrying a transmission from the Headend to remote points on the Cable System or to Interconnection points on the Cable System. "Dwelling Unit" means any building, or portion thereof, that has independent living facilities, including provisions for cooking, sanitation and sleeping, and that is designed for residential occupancy. Buildings with more than one set of facilities for cooking shall be considered Multiple Dwelling Units unless the additional facilities are clearly accessory. "Expanded Basic Service" means the Tier of video programming services, which is the level of Cable Service received by most Subscribers above Basic Service, and does not include Premium Services. "FCC" means the Federal Communications Commission "Fiber Optic" means a transmission medium of optical fiber cable, along with all associated electronics and equipment, capable of carrying Cable Service or Institutional Network service by means of electric lightwave impulses. "GAAP" means generally accepted accounting principles. "Generally Applicable" means, when referenced to ordinances, laws or regulations, legal obligations that are applied generally and not limited solely to Grantee. "Grantee" means any Person or groups of Persons, including Grantee, who provide(s) Cable Service over a Cable System and directly or through one or more affiliates owns a significant interest in such Cable System or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of such a Cable System. Grantee means Comcast of Colorado/Florida, Inc. to the extent this entity operates a Cable System in the County, or its lawful successors, transferees or assignees. 4 "Gross Revenues" means any and all revenue received by Grantee, or by any other entity that is a Cable Operator of the Cable System including Grantee's Affiliates, from the operation of the Grantee's Cable System to provide Cable Services in the Agreement Area. Gross Revenues include, by way of illustration and not limitation, monthly and other fees chazged Subscribers for Cable Services including Basic Service, any expanded tiers of Cable Service, other tiers of Cable Service, optional Premium Cable Services, Cable Service installation, disconnection, reconnection and change-in-service fees, Leased Access Channel fees, remote control rental fees, all Cable Service lease payments from the Cable System, late fees and administrative fees, fees, payments or other consideration received by the Grantee from programmers for carriage of Cable Services on the Cable System and accounted for as revenue under generally accepted accounting principles (GAAP), revenues from rentals of converters or other Cable System equipment used to receive Cable Service, advertising sales revenues (including local, regional and a pro rata share of national advertising carried on the Cable System in the Agreement Area), the fair mazket value of consideration received by the Grantee for use of the Cable System to provide Cable Service and accounted for as revenue under GAAP, revenues from program guides, additional outlet fees, revenue from Cable Internet Service to the extent this service is considered a Cable Service as further described below, Agreement Fees, revenue from interactive services to the extent they aze considered Cable Services under federal law, revenue from the sale or carnage of other Cable Services on the Cable System, and revenues from home shopping. Gross Revenues shall include revenue received by any entity other than the Grantee where necessary to prevent evasion or 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 which are imposed directly on any Subscriber or user by the State, County or other governmental unit and which aze collected by the Grantee on behalf of said governmental unit; or (iii) any capital contributions as required by Section 9 of this Agreement. The Agreement Fees aze not a tax, and aze therefore included in Gross Revenues. In a Declaratory Ruling and Notice of Proposed Rulemaking released March 15, 2002, the FCC stated that Cable Modem Service is not a Cable Service under the Communications Act of 1934, as amended, and initiated a Rulemaking to, among other things, examine the states' and local governments' authority to regulate Cable Modem Service and the scope of the FCC's jurisdiction to regulate Cable Modem Service. If the FCC's March 15, 2002 ruling that Cable Modem Service is not a Cable Service is modified in a final, nonappealable decision by the FCC or in a Court of competent jurisdiction, or under any change in applicable federal law, including but not limited to Congressional legislation, to the extent that Cable Modem Service is determined to be a Cable Service within the jurisdiction of a local regulatory/franchising authority and revenue from Cable Modem Service may be included as Gross Revenues derived from the operation of the Cable System to provide Cable Services for purposes of paying franchise fees or Agreement Fees collected by local regulatory/franchising authorities, then the definition of Gross Revenues shall include revenues the Grantee receives from providing Cable Internet Service in the Agreement Area. 5 "Headend" means any facility for signal reception and dissemination on a Cable System, including cables, antennas, wires, satellite dishes, monitors, switchers, modulators, and processors for providing Cable Services, and any other related equipment and facilities. "Leased Access Channel" means any Channel or portion of a Channel of the Cable System available to the public in a manner consistent with 47 USC Section 532 for commercial use by Persons other than Grantee, for a fee or charge. "Noncommercial" means, in the context of Access Channels, that particular products acid services are not promoted or sold. This teen shall not be interpreted to prohibit an Access Channel operator or programmer from soliciting and receiving financial support to produce and transmit video programming on an Access Channel, or from acknowledging a contribution, in the manner of the Corporation for Public Broadcasting or some similar manner, subject to applicable law. "Normal Business Hours" means those hours during which most similar businesses in the County are open to serve customers. Normal business hours is encouraged to include some evening hours at ]east one night per week and/or some hours on Saturday. "Normal Operating Conditions" means those service conditions that aze within the control of the Grantee. Those conditions which are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the Grantee include, but aze not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade of the System. "Person" means any individual, sole proprietorship, partnership, association, or corporation, or any other form of entity or organization. "Premium Service" or "Pay Service" means programming choices (such as movie Channels, pay- per-view programs, or video on demand) offered to Subscribers on aper-Channel, per-program or per-event basis. "Residential Subscriber" means any Subscriber who receives Cable Service delivered to single or multiple dwelling units, excluding such Dwelling Units billed on abulk-billing basis. "Ri t-of-Way" means each of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the Agreement Area: streets, roadways, highways, avenues, lanes, alleys, bridges, sidewalks, easements, rights-of--way and similar public property and areas. "School" means any State accredited K-12 public or private educational institution (excluding home schools). "Service Interruption" means the loss of picture or sound on one or more cable channels. "State" means the State of Colorado. 6 "Subscriber" means any Person in the Agreement Area who or which elects to subscribe to, for any purpose, Cable Service provided by Grantee by means of or in connection with the Cable System and whose premises are physically wired and lawfully Activated to receive Cable Service from Grantee's Cable System. "Subscriber Network" means that portion of the Cable System used primarily by Grantee in the transmission of Cable Services to Residential Subscribers. "Tier" means a group of Channels for which a single periodic subscription fee is charged. "Two-Way" means Upstream and Downstream transmissions. "Upstream" means carrying a transmission to the Headend from remote points on the Cable System or from Interconnection points on the Cable System. "Video Pro~ammin~" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. SECTION 2. GRANT OF AGREEMENT 2.1 Grant (A) The County hereby grants to Grantee a nonexclusive authorization to make reasonable and lawful use of the Rights-of--Way within the County to construct, operate, maintain, reconstruct, rebuild and upgrade a Cable System for the purpose of providing Cable Service subject to the terms and conditions set forth in this Agreement. This Agreement shall constitute both a right and an obligation to provide the Cable Services required by, and to fulfill the obligations set forth in, the provisions of this Agreement. (B) The Grantee, through this Agreement, is granted the right to operate its System using the Grantor's Rights-of--Way within the Agreement Area in compliance with all lawfully enacted Generally Applicable construction codes and regulations. The Grantee specifically agrees to comply with the lawful provisions of Generally Applicable County ordinances and resolutions passed pursuant to lawful police powers provided that in the event of a conflict between the provisions of ordinances or resolutions and the Agreement, the express provisions of the Agreement shall govern. This Agreement constitutes a valid and enforceable contract between the parties. Subject to federal and state preemption, this Agreement may not be unilaterally altered by the Grantor through subsequent amendment to any ordinance, rule, regulation, resolution, or other enactment of Grantor, except in the lawful exercise of Grantor's police power. Grantee reserves the right to challenge provisions of any ordinance, rule, regulation, resolution or other enactment of the Grantor that conflicts with its legal or contractual rights, either now or in the future. (C) This Agreement shall not be interpreted to prevent the County from imposing additional lawful conditions, including additional compensation conditions for use of the Rights-of- Way, should Grantee provide service other than Cable Service. 7 (D) Grantee promises and guarantees, as a condition of exercising the privileges granted by this Agreement, that any Person who is a Grantee of this System directly involved in the offering of Cable Service in the Agreement Area, or directly involved in the management or operation of the Cable System in the Agreement Area, will also comply with the terms and conditions of this Agreement. (E) No rights shall pass to Grantee by implication. Without limiting the foregoing, by way of example and not limitation, this Agreement shall not include or be a substitute for: (1) Any other permit or authorization lawfully required and Generally Applicable for the privilege of transacting and carrying on a business within the County that maybe required by the Generally Applicable ordinances and laws of the County; (2) Any permit, agreement, or authorization lawfully required by the County and Generally Applicable for Right-of--Way users in connection with operations on or in Rights-of--Way or public property including, by way of example and not limitation, street cut permits; or (3) Any permits or agreements lawfully required and Generally Applicable for occupying any other property of the County or private entities to which access is not specifically granted by this Agreement including, without limitation, permits and agreements for placing devices on poles, in conduits or in or on other structures. (F) This Agreement does not authorize, prohibit or condition Grantee's provision of telecommunication services in the Agreement Area. This Agreement is not a bar to the imposition of any lawful conditions on Grantee with respect to non-Cable Services, telecommunications services or information services, whether similaz, different or the same as the condition specify herein. This Agreement does not relieve Grantee of any obligation it may have to obtain from the County any such authorization that may lawfully be required in order to provide non-Cable Services, telecommunications services or information services. However, this Agreement shall not be read as a concession by Grantee that it needs authorization to provide non-Cable Services, telecommunications services or information services. 2.2 Use of Rights-of--Way (A) Subject to the County's lawful and Generally Applicable permitting, supervision and control, Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the Rights-of--Way within the County such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, pedestals, attachments and other property and equipment as aze necessary and appurtenant to the operation of a Cable System within the County. (B) Grantee must follow County established requirements for placement of Cable System facilities in Rights-of--Way, including the specific location of facilities in the Rights-of- Way, and must in any event install Cable System facilities in a manner that minimizes interference with the proper use of the Rights-of--Way by others, including others that may be installing communications facilities. Grantee shall comply with all Generally Applicable construction codes, laws, ordinances, regulations, and procedures, and must obtain any and all necessary permits from the County prior to commencing any construction activities. 2.3 Effective Date and Term of Agreement This Agreement and the rights, privileges and authority granted hereunder shall take effect on March 30, 2004 (the "Effective Date"), and shall terminate twelve (12) years thereafter on March 29, 2016, unless terminated sooner as hereinafter provided. 2.4 Agreement Nonexclusive This Agreement shall be nonexclusive, and subject to all prior rights, interests, easements or licenses granted by the County to any Person to use any Right-of--Way, for any purpose whatsoever, including the right of the County to use same for any purpose it deems fit, including the same or similar purposes allowed Grantee hereunder. The County may at any time grant authorization to use the Rights-of--Way for any purpose not incompatible with Grantee's authority under this Agreement and for such additional agreements for Cable Systems as the County deems appropriate consistent with the other provisions herein. 2.5 Police Powers Grantee's rights hereunder are subject to the lawful police powers of the County to adopt and enforce ordinances necessary to the safety, health, and welfaze of the public, and Grantee agrees to comply with all Generally Applicable laws and ordinances lawfully enacted, or hereafter enacted, by the County or any other legally constituted governmental unit having lawful jurisdiction over the subject matter hereof pwsuant to such police powers. The County shall have the right to adopt, from time to time, such ordinances as may be deemed necessary in the exercise of its lawful police power; provided that such ordinances shall be reasonable. Grantee reserves the right to challenge provisions of any ordinance, rule, regulation, resolution or other enactment of the Grantor that conflicts with its contractual rights, either now or in the future. 2.6 Grant of Other Agreements In the event the County enters into an agreement, permit, license, authorization or other agreement of any kind with a similarly situated wireline cable operator other than the Grantee to enter into the County's Rights-of--Way for the purpose of constructing or operating a Cable System or providing Cable Service to any part of the Agreement Area, in which the Grantee is actually providing Cable Service under the terms and conditions of this Agreement or is required to extend Cable Service to under the provisions of this Agreement, the material provisions thereof, taken as a whole, shall be reasonably comparable to those contained herein. 2.7 Familiarity with Agreement The Grantee and the County each acknowledge and warrant by acceptance of the rights, privileges and agreements granted herein, that it has carefully read and fully comprehends the terms and conditions of this Agreement and is willing to and does accept all lawful and reasonable risks of the meaning of the provisions, terms and conditions herein. The Grantee further acknowledges and states that it has fully studied and considered all requirements and provisions of this Agreement, and finds that the same aze commercially practicable as of the effective date of this Agreement. 2.8 Effect of Acceptance By accepting the Agreement, the Grantee: (1) acknowledges and accepts the County's legal right to issue and enforce the Agreement; (2) accepts and agrees to comply with each and every provision of 9 this Agreement subject to applicable law; (3) agrees to comply with each and every provision of applicable law; and (4) agrees that the Agreement was granted pursuant to processes and procedures consistent with applicable law as existed as of the effective date of this Agreement, and that it will not raise any claim to the contrary. SECTION 3. AGREEMENT FEE PAYMENT AND FINANCIAL CONTROLS 3.1 Agreement Fee (A) As compensation for the benefits and privileges granted under this Agreement and , in consideration of permission to use the Count}~s Rights-of--Way, Grantee shall pay as an Agreement Fee to the County, throughout the duration of this Agreement, an amount equal to five . percent (5%) of Grantee's annual Gross Revenues. Accrual of such Agreement Fee shall commence 60 days after execution of this Agreement by the County and Grantee. (B) The County recognizes that, in the future, Grantee may allocate revenue between Cable Services (which aze subject to the Agreement Fee) and non-Cable Services (which are not subject to the Agreement Fee but may be subject to other fees and/or taxes), when these two types of service are bundled together in a discounted package offered to Subscribers. To the extent discounts reduce revenues includable for purposes of calculating Agreement Fees, the Grantee may not unfairly or unlawfully allocate discounts for bundled services for the purpose of evading payment of Agreement Fees to the Grantor. 3.2 Payments In accordance with the Cable Act, the 12-month period applicable under the Agreement for the computation of the Agreement Fee shall be a calendaz yeaz. Grantee's Agreement Fee payments to the County shall be computed quarterly for the preceding calendar quarter ending Mazch 31, June 30, September 30, and December 31. Each quarterly payment shall be due and payable no later than forty five (45) days after said dates. 3.3 Acceptance of Payment and Recomputation No acceptance of any payment from Grantee shall be construed as an accord by the County that the amount paid is, in fact, the convect amount, nor shall any acceptance of payments be construed as a release of any claim the County may have for further or additional sums payable or for the performance of any other obligation of Grantee. 3.4 Annual Agreement Fee Reports Grantee shall, with each Agreement Fee payment, furnish to the County a statement stating the total amount of Gross Revenues for the quarter and all payments, deductions and computations for the period. Such statement shall be signed by the General Manager or a financial officer or controller of Grantee, stating that it accurately reflects the Gross Revenues of the Grantee, prior to submission to the County. 3.5 Audits On an annual basis, upon thirty (30) days prior written notice, the County, including the County's Auditor or his/her authorized representative, shall have the right to conduct an independent audit of Grantee's records reasonably related to the administration or enforcement of this Agreement, in 10 accordance with GAAP. If the audit shows that Agreement Fee payments have been underpaid by five percent (5%) or more, Grantee shall pay the total cost of the audit, such cost not to exceed one thousand dollars ($1,000.00). The County's right to audit and the Grantee's obligation -to retain records related to an Agreement Fee audit shall expire three (3) years after each Agreement Fee payment has been made to the County. 3.6 Late Payments In the event any payment due annually is not received within sixty (60) days from the end of the calendar quarter, Grantee shall pay interest on the amount due (at the prime rate as listed in the Wall Street Journal on the date the payment was due), calculated from the date the payment was originally due until the date the County receives the payment. 3.7 Underpayments If a net Agreement Fee underpayment is discovered as the result of an audit, Grantee shall pay interest at the rate of the eight percent (8%) per annum, compounded semi-annually calculated from the date each portion of the underpayment was originally due until the date Grantee remits the underpayment to the County. This interest on late payment shall not be included in the five percent threshold referenced above in Section 3.5. 3,g Maximum Agreement Fee The parties acknowledge that, at present, applicable federal law limits Grantor to collection of an Agreement Fee of five percent (5%) of Gross Revenues in any twelve (12) month period. In the event that at any time throughout the term of this Agreement, Grantor is authorized to collect an amount in excess of five percent (5%) of Gross Revenues in any twelve (12) month period, it may do so with sixty (60) days written notice to Grantee, provided that all wireline cable operators in the Agreement Area over which the Grantor has jurisdiction are treated in an equivalent manner and provided that Grantor and Grantee hereby agree to negotiate in good faith and have met after thirty (30) days written notice and then have mutually agreed to such increase and have mutually agreed to an amendment to this Agreement in connection therewith. 3.9 Additional Commitments Not Agreement Fees Although the total sum of Agreement Fee payments and additional commitments set forth elsewhere in this Agreement may total more than five percent (5%) of Grantee's Gross Revenues in any 12-month period, Grantee agrees that the additional commitments regarding PEG capital funding and Access Channels are excluded from the definition of Agreement Fees herein and are not Agreement Fees, nor are they to be offset or credited against any Agreement Fee payments due to Grantor, nor do they represent an increase in Agreement Fees to be passed through to Subscribers pursuant to any federal law. Access Fees are not to be offset against and are not Agreement Fees so long as and to the extent that the Access Fees are used for PEG Access capital support. The Grantee agrees not to assert or otherwise claim at any time before any court of competent jurisdiction or any administrative agency that, as of the effective date of this Agreement, that such PEG capital funding and Access Channels are Agreement Fees as defined under federal or state law or regulations so as to form the basis for offset or credit against any and or all Agreement Fee payments paid or due to the County. 11 3.10 Tax Liability The Agreement Fees aze not a tax and shall be, subject to applicable law, in addition to any and all taxes or other levies or assessments which are now or hereafter required to be paid by businesses in general by any law of the County, the State or the United States including, without limitation, utility, business, occupation, sales, use and other taxes, business license fees or other payments. Payment of the Agreement Fees under this Agreement shall not exempt Grantee from the payment of any other license fee, permit fee, tax or chazge on the business, occupation, property or income of Grantee that may be lawfully imposed by the County. Other than the fee for the initial capital contribution and the Replacement Capital Contribution fees required in Section 9 herein, any license fees, or separate taxes or charges shall be of general applicability in nature and shall not be levied against Grantee solely because of its status as a Cable Operator. The initial capital contribution and Replacement Capital Contributions fees are not a tax. 3.11 Financial Records Grantee agrees to meet with a representative of the County upon written request to review Grantee's methodology of record-keeping, financial reporting, the computing of Agreement Fee obligations and other procedures, the understanding of which the County reasonably deems necessary for reviewing reports and records. 3.12 Payment on Termination If this Agreement terminates for any reason, the Grantee shall file with the County within ninety (90) calendar days of the date of the termination, a statement, certified by an independent certified public accountant, showing the Gross Revenues received by the Grantee since the end of the previous fiscal year. 1f not otherwise paid by Grantee, the County reserves the right after notice and opportunity to cure as provided in Section 13 in this Agreement to satisfy any remaining financial obligations of the Grantee to the County by utilizing the funds available in any security provided by the Grantee. SECTION 4. ADMINISTRATION AND REGULATION 4.1 Authority (A) The County shall reasonably regulate the exercise of the privileges permitted by this Agreement in the public interest. The County may delegate its power and right or any part thereof, to the extent permitted under State and local law, to any agent provided, however, Grantee shall have the right to appeal to the legislative body of the County any adverse determination made by a delegate of the County. (B} Nothing in this Agreement shall limit nor expand the County's right of eminent domain under State law. 4.2 Rates and Charges All of Grantee's rates and chazges related to or regazding Cable Services shall be subject to regulation by the County to the full extent authorized by applicable federal, State and local laws. 12 4.3 No Rate Discrimination All of Grantee's rates and charges shall be published (in the form of apublicly-available rate cazd) and be non-discriminatory as to all Persons and organizations of similar classes, under similar circumstances and conditions. Grantee shall apply its rates in accordance with governing law, without regard to race, color, ethnic or national origin, religion, age, sex, sexual orientation, marital, military or economic status, or physical or mental disability or geographic location within the County. Nothing herein shall be construed to prohibit: (A) The temporary reduction or waiving of rates or charges in conjunction with valid promotional campaigns; or (B) The offering of reasonable discounts to senior citizens or economically disadvantaged citizens; or (C) The offering of rate discounts for Cable Service; or (D) The Grantee from establishing different and nondiscriminatory rates and charges and classes of service for Commercial Subscribers, as allowable by federal law and regulations. 4.4 Filing of Rates and Charges (A) Throughout the term of this Agreement, Grantee shall maintain on file with the County a complete schedule of applicable rates and chazges 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 chazges 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 six (6) consecutive months (or such other period as may be approved by the County) to purchase Cable Services at such rate or chazge. (B) Upon written request of the County, Grantee shall provide a complete schedule of current rates and charges for Leased Access Channels, or portions of such Channels, provided by Grantee. The schedule shall include a description of the price, terms, and conditions established by Grantee for Leased Access Channels. 4.5 Cross Subsidization Grantee shall comply with all applicable laws regarding rates for Cable Services and all applicable laws covering issues of cross subsidization. 4.6 Reserved Authority The Grantee and the County each reserves all rights and authority arising from the Cable Act and any other relevant provisions of federal, State, or local law. 4.7 Time Limits Strictly Construed Whenever this Agreement sets forth a time for any act to be performed by Grantee, such time shall be deemed to be of the essence, and ariy failure of Grantee to perform within the allotted time may be considered a material breach of this Agreement, and sufficient grounds for the County to invoke any relevant remedy. 13 4.8 Agreement Amendment Procedure Either party may at any time seek an amendment of this Agreement by so notifying the other party in writing. Within thirty (30) days of receipt of notice, the County and Grantee shall meet to discuss the proposed amendment(s). If the parties reach a mutual agreement upon the suggested amendment(s), such amendment(s) shall be submitted to the County Commissioners for its approval. 4.9 Performance Evaluations (A) The County may hold performance evaluation sessions within thirty (30) days of the third anniversary dates of the Effective Date of this Agreement. All such evaluation sessions shall be conducted by the County. (B) Special evaluation sessions may be held at any time by the County during the term of this Agreement upon reasonable prior written notice to Grantee. (C) All evaluation sessions shall be open to the public and announced at least two (2) weeks in advance in a newspaper of general circulation in the County. Grantee shall also include with or on the Subscriber billing statements for the billing period immediately preceding the commencement of the session, written notification of the date, time, and place of the regular performance evaluation session, and any special evaluation session as required by the County, provided Grantee receives appropriate advance notice and provided the billing statement can reasonably accommodate such notification. (D) Topics which may be discussed at any evaluation session may include, but are not limited to, Cable Service rate structures; Agreement Fee payments; liquidated damages; application of new technologies; Cable System performance; Cable Services provided; programming offered; Subscriber complaints; privacy; amendments to this Agreement; judicial and FCC rulings; line extension policies; and the County or Grantee's rules; provided that nothing in this subsection shall be construed as requiring the renegotiation of this Agreement. (E) During evaluations under this subsection, Grantee shall fully cooperate with the County and shall provide such information and documents as the County may reasonably require to perform the evaluation. 4.10 Late Fees (A) For purposes of this subsection, any assessment, charge, cost, fee or sum, however characterized, that the Grantee imposes upon a Subscriber solely for late payment of a bill is a late fee and shall be applied in accordance with applicable local, state and federal law. (B) Nothing in this subsection shall be deemed to create, limit or otherwise affect the ability of the Grantee, if any, to impose other assessments, charges, fees or sums other than those permitted by this subsection, for the Grantee's other services or activities it performs in compliance with applicable ]aw, including FCC law, rule or regulation. 14 _ (C) The Grantee's late fee and disconnection policies and practices shall be nondiscriminatory and such policies and practices, and any fees imposed pursuant to this subsection, shall apply equally in all parts of the County without regard to the neighborhood or income level of the Subscriber. 4.11 Force Majeure In the event Grantee is prevented or delayed in the performance of any of its obligations under this Agreement by reason beyond the control of Grantee, Grantee shall have a reasonable time, under the circumstances, to perform the affected obligation under this Agreement or to procure a substitute for such obligation that is reasonably satisfactory to the County. Those conditions which are not within the control of Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions which have a direct and substantial impact on the Grantee's ability to provide Cable Services in the County and which was not caused and could not have been avoided by the Grantee using its reasonable best efforts in its operations to avoid such results. To the extent any non-performance is the result of any force majeure condition, Grantee shall not be held in default nor have damages imposed by the County as a result thereof. SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS 5.1 Indemnification (A) General Indemnification. Grantee shall indemnify, defend and hold the County and its officers, officials, boards, commissions and employees harmless from any action or claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and attorneys' fees or expenses, arising from any casualty or accident to Person or property, including, without limitation, copyright infringement, defamation, and all other damages in any way arising out of, or by reason of, any construction, excavation, operation, maintenance, reconstruction, or any other act done under this Agreement, by or for Grantee, its agents, or its employees, or by reason of any neglect or omission of Grantee. Grantee shall reasonably consult and cooperate with the County while conducting its defense of the County. (B) Indemnification for Relocation. Grantee shall indemnify the County for any damages, claims, additional costs or expenses assessed against, or payable by, the County arising out of, or resulting from, Grantee's failure to remove, adjust or relocate any of its facilities in the Rights-of--Way in a timely manner in accordance with any relocation lawfully required by the County to the extent the Grantee is lawfully required to pay relocation costs. (C) Additional Circumstances. Grantee shall also indemnify, defend and hold the County harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and attorneys' fees or expenses in any way arising out of: (1) The lawful actions of the County in granting this Agreement to the extent such actions are consistent with this Agreement and applicable law; (2) Damages arising out of any failure by Grantee to secure consents from the owners, authorized distributors, or licensees/licensors of programs to be delivered by the Cable 15 System, whether or not any act or omission complained of is authorized, allowed or prohibited by this Agreement. ` (D) Procedures and Defense. If a claim or action arises, the County or any other indemnified party shall promptly tender the defense of the claim to Grantee, which defense shall be at Grantee's expense. The County may participate in the defense of a claim in which it is named, at its own cost. Grantee may not agree as part of a settlement agreement that the County violated any laws without the County's prior written approval which may not be unreasonably withheld. (E) Duty of Defense. The fact that Grantee carries out any activities under 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) Expenses. If separate representation to fully protect the interests of the County is necessary, such as arising from a conflict of interest between the County and the counsel selected by Grantee to represent the County, after all reasonable measures have been taken to prevent the necessity of hiring separate counsel for the County, then the Grantee shall pay all reasonable expenses incurred by the County in defending itself with regard to any action, suit or proceeding indemnified by Grantee. The County's 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 or his/her assistants or any employees of the County or its agents but shall not include outside attorneys' fees for services that are unnecessarily duplicative of services provided the County by Grantee. 5.2 Insurance (A) General Requirement. Grantee must provide insurance coverage as required herein or as provided in the Governmental Immunity Act (whichever is greater provided that Grantee has thirty (30) days advance written notice from Grantor of any increase in the amount of coverage required) during the entire term of this Agreement to protect the Grantor against claims for injuries to Persons or damages to property which in any way relate to, arise from or are connected with this Agreement, or involve Grantee, its agents, representatives, contractors, subcontractors and their employees. (B) Initial Insurance Limits. Grantee must maintain in full force and effect at its own cost and expense during the Agreement term insurance in effect in accordance with the minimum insurance limits herein set forth. The Grantee shall provide insurance coverage in the following initial minimum insurance limits: (1) Commercial General Liability: One million dc,llars ($1,000,000) aggregate limit per occurrence for bodily injury, personal injury and property damage; (2) Automobile Liability: One million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage; and (3) Employer's Liability: One million dollars ($1,000,000). 16 (4). Workers Compensation Insurance in accordance with state Iaw requirements. (5) If the insurance is cancelled or materially altered so as to be out of compliance with the requirements of this Section within the term of this Agreement, Grantee shall provide thirty (30) days written notice and a certificate reflecting a replacement policy. Grantee agrees to maintain continuous uninterrupted insurance coverage, in the amounts required, for the duration of this Agreement. 5.3 Deductibles/Certificate of Insurance (A) Any deductible of the policies shall not in any way limit Grantee's liability to the County. (1) The County, its officers, officials, boards, commissions and employees shall be covered as, and have the rights of, additional insureds with respect to liability arising out of activities performed by Grantee, or for which Grantee has assumed responsibility herein; (2) Grantee's insurance coverage shall be primary insurance with respect to the County, its officers, officials, boards, commissions and employees. Any insurance or self-insurance maintained by the County, its officers, officials, boards, commissions and employees shall be in excess of the Grantee's insurance and shall not contribute to it; and (3) Grantee's insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability. (B) Acceytability of Insurers. The insurance obtained by Grantee shall be placed with insurers with a Best's rating of no less than "A-." (C) Verification of Coverage. The Grantee shall furnish the County with certificate(s) of insurance reflecting blanket additional insured status. The certificate(s) are to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificate(s) are to be on standard forms or such forms as are consistent with standard industry practices. (D) Self-Insurance. In the alternative to providing a certificate of insurance to the County certifying insurance coverage as required above, Grantee may provide self-insurance in the same amount and level of protection for Grantee and County, its officers, officials, boards, commissions and employees as otherwise required under this Section. The adequacy of self- insurance shall be subject to the periodic review and approval of the County. 5.4 Collateral (A) Grantee shall provide and maintain in effect collateral as required by Generally Applicable County regulations. (B) Before drawing on any such collateral, County shall follow the notice and cure procedures set forth in Section 13.1. Grantee shall have the right to appeal to the County Commissioners for reimbursement in the event Grantee believes that the collateral was drawn upon improperly. Grantee shall also have the right of judicial appeal if Grantee believes the collateral has 17 not been properly drawn upon in accordance with this Agreement. Any amounts the County erroneously or wrongfully withdraws from the collateral 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 funds were withdrawn. (C) Maintenance of the requisite collateral shall not in any way limit the liability of the Grantee for any failure to fully perform its obligations under this Agreement. SECTION 6. CUSTOMER SERVICE 6.1 Customer Service Standards Grantee shall comply with Customer Service Standards of the County adopted by County Ordinance as the same may be amended from time to time by the County Commissioners. Grantee reserves the right to challenge any customer service standard that it believes is inconsistent with its contractual rights under this Agreement. 6.2 Subscriber Privacy Grantee shall fully comply with any provisions regarding the privacy rights of Subscribers contained in federal, State, or local law. 6.3 Subscriber Contracts Grantee shall not enter into a contract with any Subscriber that is in conflict with the terms of this Agreement. Upon written request, Grantee will provide to the County a sample of the Subscriber contract or service agreement then in use. 6.4 Advance Notice to County The Grantee shall use reasonable efforts to furnish any notices provided to Subscribers or the media in the normal course pf business to the County in advance. 6.5 Customer Service Location Throughout the Agreement term, the Grantee must maintain, at a minimum, one (1) customer service location in Pitkin County or Garfield County. SECTION 7. REPORTS AND RECORDS ?.1 Open Records The County, including the Count}~s Auditor or his/her authorized representative, shall have access to, and the right to inspect, any books and records of Grantee, and Affiliates that are maintained in the ordinary course of business and readily available at Grantee's local offices and which are reasonably related to the administration or enforcement of the terms of this Agreement. Grantee shall not deny the County access to any such records on the basis that Grantee's records are under the control of any Affiliate or a third party. The County may, in writing, request copies of any such records or books required under this Section 7 and Grantee shall provide such copies within thirty (30) days of the receipt of such request. One (1) copy of all reports and records required under this or any other subsection shall be furnished to the County, at the sole expense of Grantee. If the requested books and records are too voluminous, or for security reasons cannot be copied or 18 removed, then Grantee may request, in writing within ten (10) days of receipt of the Count}~s written request that the County inspect them at Grantee's local offices. If any books or records of Grantee are not kept in a local office and not made available at the local offices or made available in copies to the County upon written request as set forth above, ~ and if the County reasonably determines that an examination of such records is necessary or appropriate for the performance of any of the County's administration or enforcement of this Agreement, then all reasonable travel and related expenses incurred in making such examination shall be paid by Grantee. 7.2 Confidentiality The County agrees to treat as confidential any books or records that constitute proprietary or confidential information, to the extent Grantee makes the County aware of such confidentiality and consistent with applicable Open Records Laws. Grantee shall be responsible for clearly and conspicuously stamping the word "Confidential" on each page that contains confidential or proprietary information, and shall provide a brief written explanation as to why such information is confidential. If the County believes it must release any such confidential books and records in the course of enforcing this Agreement, or for any other reason, it shall advise Grantee in advance so that Grantee may take appropriate steps to protect its interests. If the County receives a demand from any Person for disclosure of any information designated by Grantee as confidential, the County shall, so far as consistent with applicable law, advise Grantee and provide Grantee with a copy of any written request by the party demanding access to such information within a reasonable time. Until otherwise ordered by a court or agency of competent jurisdiction, the County agrees that, to the extent permitted by State and federal law, it shall deny access to any of Grantee's books and records marked confidential as set forth above to any Person. Grantee shall reimburse the County for all reasonable costs and attorneys fees incurred in any legal proceedings pursued under this Section to protect the confidentiality of Grantee's records. 7.3 Records Required (A) Except as otherwise indicated herein, Grantee shall maintain for a period of time consistent with its document retention policies, and shall furnish to the County upon written request: (1) As additional facilities are added or modified, a complete set of trench and strand maps. As-built maps including proprietary electronics shall be available at Grantee's offices for inspection by the County's authorized representative(s) or agent(s) and made available to such upon reasonable written notice during regular business hours, during the course of technical inspections as reasonably conducted by the County. These maps shall be certified as accurate as of the time they are prepared by an appropriate representative of the Grantee; (2) A copy of all FCC filings on behalf of Grantee or Affiliates, which relate to the operation of the Cable System in the County and; (3) A list of current Cable Services, rates and Channel line-ups. (B) Subject to subsection 7.2, all information furnished to the County is public information, and shall be treated as such, except for information involving the privacy rights of individual Subscribers. 19 7.4 Annual Reports ' Upon written request, but no more often than annually, Grantee shall submit to the County a written report, in a form reasonably acceptable to the County, which shall include, but not necessarily be limited to; (A) A summary of the previous year's activities in the development of the Cable System; and (B) The number of homes passed, beginning and ending plant miles, and any technological changes occurring in the Cable System. 7.5 Copies of Federal and State Reports Upon reasonable written request, Grantee shall submit to the County copies of all pleadings, applications, notifications, communications and documents of any kind, submitted by Grantee to any federal, State or local courts, regulatory agencies and other government bodies if such documents directly relate to the operations of Grantee's Cable System within the County. Grantee shall submit such documents to the County no later than thirty (30) days after receipt of written request. Grantee shall not claim confidential, privileged or proprietary rights to such documents unless under federal, State, or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or State agency. With respect to all documents provided to any federal, State, or local regulatory agency as a routine matter in the due course of operating Grantee's Cable System within the County, Grantee shall make such documents available to the County upon reasonable written request. 7.6 Complaint File and Reports Grantee shall make reasonable efforts to keep an accurate and comprehensive file of any and all complaints it receives regarding the Cable System in a manner consistent with the privacy rights of Subscribers, and Grantee's actions in response to those complaints. Upon reasonable written request, this file shall be made available to the County during normal business hours. Upon written request, Grantee shall provide the County an annual executive summary, which shall include the following information: (A) A summary of service calls, identifying the number and nature of the requests and their disposition; (B) A log of all service interruptions; (C) A summary of customer complaints referred in writing by the County to Grantee; (D) Average response time for service calls; (E) Such other information as reasonably requested by the County, provided that Grantee is given thirty (30) days prior written notice of such request before the end of the year. 20 7.7 False Statements Any false or misleading statement or representation in any report required by this Agreement (not including clerical errors or errors made in good faith) may be deemed a material breach of this Agreement and may subject Grantee to all remedies, legal or equitable, which are available to the County under this Agreement or otherwise. 7.8 Inspection of Facilities Except for Grantee's Headend, Grantor may inspect any of Grantee's facilities and equipment located in the Rights-of--Way or on other public 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 taking into account public health, safety and welfare. SECTION 8. PROGRAIVIlVIING 8.1 Broad Programming Categories Grantee shall provide at least the following initial broad categories of programming to the extent such categories are reasonably available: (A) Educational programming; (B) Colorado news, weather and information; (C) Sports; (D) General entertainment (including movies); (E) Children/family-oriented; (F) Arts, culture and performing arts; (G) Foreign language programming; (H) Science/documentary; ()7 National news, weather and information. 8.2 Deletion or Reduction of Broad Programming Categories (A) Grantee shall not delete or so limit as to effectively delete any broad category of programming within its control without the prior written consent of the County. (B) In the event of a modification proceeding under federal law, the mix and quality of Cable Services provided by Grantee on the Effective Date of this Agreement must be maintained after any such modification. Z1 8.3 Complementary Cable Service The Grantee, upon written request from the County, shall provide without charge one outlet of Basic Service to those administrative buildings now existing or hereafter constructed and owned and occupied or leased and occupied by the County, fire station(s), police and sheriff station(s), public Libraries and School(s) provided further that those buildings are passed by Grantee's Cable System and provided further that these buildings are already served or are within 125 aerial feet (a Standard Installation) of Grantee's Cable System, and excluding those buildings or portions of buildings that house or occupy prison/jail populations. Where County administrative office(s) are located in a multiuse building, Grantee shall on the same basis as it provides service to other County administrative buildings under this Subsection 8.3, provide without chazge one outlet of Basic Service to a County office in such building, provided that such free outlet shall not be extended to provide complimentary service to non-County offices or facilities in the building. Grantee shall maintain complementary Basic Service to those locations that are currently served and those outlets currently provided. Except where already existing, the Cable Service provided shall not be distributed beyond the originally installed outlet without authorization from Grantee. Such outlets may only be used for lawful purposes, shall not be located in public waiting azeas, nor shall the outlets be used to entertain public groups, or be used for commercial purposes. The Grantor shall take reasonable precautions to prevent any use of the Grantee's Cable System in any manner that results in inappropriate use thereof, or any loss or damage to the Cable System. In the case of leased facilities, the recipient of service is responsible for securing approval for appropriate right of entry suitable to the Grantee in its reasonable discretion. To the extent not inconsistent with other provisions in this Agreement, the Grantor shall hold the Grantee harmless from any and all liability or claims arising out of the use of Cable Service at County facilities and educational facilities required by this Section. The Grantee shall not be required to provide an outlet to such buildings where a non-Standazd Installation is required, unless the Grantor or building owner/occupant agrees to pay the incremental cost of any necessary Cable System extension and/or non-Standard Installation. If additional outlets of Cable Service are provided to such buildings beyond those required herein, the building owner/occupant shall pay the usual installation and service fees associated therewith. The Cable Service described herein is a voluntary initiative of Grantee, but shall be provided throughout the tenor of this Agreement so long as the buildings meet the above requirements and unless or until the County requests that service be discontinued. 8.4 Obscenity Grantee shall comply with all relevant provisions of law relating to obscenity. 8.5 Parental Control Device Upon request by any Subscriber, Grantee shall provide by sale or lease a parental control or lockout device, traps or filters to enable a Subscriber to prohibit viewing of a particular Cable Service during periods selected by the Subscriber. Grantee shall inform its Subscribers of the availability of the lockout device at the time of their initial subscription and periodically thereafter. Any device offered shall be at a rate, if any, in compliance with applicable law. 22 8.6 Continuity of Service Mandatory (A) It shall be the right of all Subscribers to continue to receive Cable Service from Grantee insofaz as their financial and other obligations to Grantee aze honored. The Grantee shall use reasonable efforts so as to ensure that all Subscribers receive continuous, uninterrupted Cable Service regardless of the circumstances. For the purposes of this subsection, "uninterrupted" does not include short-term outages of the Cable System for maintenance, upgrade or testing. (B) In the event of a change of Grantee, or in the event a new grantee acquires the Cable System in accordance with this Agreement, the new grantee shall notify Subscribers and cooperate with the County, in maintaining continuity of Cable Service to all Subscribers. (C) Failure of Grantee to operate the Cable System for forty-eight (48) consecutive hours without prior approval of the County Administrator, or without just cause, shall be considered a material violation of this Agreement. SECTION 9. PEG ACCESS 9.1 Access Channel Within one hundred eighty (180) days of Grantee receiving written request from the County, Grantee shall provide at no cost to the County, one (1) Downstream Government Access Channel on the Cable System for Noncommercial educational and governmental 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. 9.2 Capital Contribution Within thirty (30) days of the effective day of this Agreement, Grantee shall provide the County a one time capital contribution of Fifteen Thousand Dollars ($15,000.00) which the County shall use to purchase Access equipment. In accordance with Federal law, Grantee has the right to and may elect to recover this initial capital contribution from Residential Subscribers (excluding free service accounts and bulk billing accounts). If Grantee elects to recover this initial capital contribution, Grantee shall notify the County when the initial capital contribution has been fully recovered. 9.3 Replacement Capital Contributions If Grantee has elected to and has recovered the initial capital contribution or after the lapsing of four (4) yeazs (whichever occurs first), Grantor may by written notice, direct Grantee to pay to the Grantor a fee based upon the formula of up to 50 cents per Residential Subscriber per month as Replacement Capital Contributions (excluding free service accounts and bulk billing accounts). In accordance with Federal law, Grantee has the right to and may elect to recover Replacement Capital Contributions from Residential Subscribers (excluding free service accounts and bulk billing accounts) and with respect to Replacement Capital Contributions, Grantee shall be obligated to pay no more than the ,amount it actually receives from Residential Subscribers (excluding free service accounts and bulk billing accounts). Prior to directing Grantee to pay any amounts for Replacement Capital Contributions, the Grantor shall hold a public meeting regarding the consideration of whether the Grantor shall direct Grantee to pay Replacement Capital Contributions to the Grantor. Upon conclusion of such a public meeting, and if the Grantor determines that Replacement Capital Contributions shall be paid, such Replacement Capital Contributions will be payable by Grantee to 23 the Grantor. The Replacement Capital Contributions may only be applied by the County toward capital expenditures related to PEG Access: After the Replacement Capital Contributions take effect, each payment shall be due and payable with the quarterly Agreement Fee payment. As per Section I6.9, Grantee is not an agent of Grantor and it is Grantee's decision whether to collect the initial capital contribution and Replacement Capital Contributions from Subscribers. Notwithstanding anything to the contrary in this Section 9.3, Grantee shall not be responsible for paying the Replacement Capital Contributions with respect to gratis or bad debt accounts. The County shall have discretion to allocate the Replacement Capital Contributions in accordance with applicable law, provided that the County submits a summary of capital expenditures from the Replacement Capital Contributions to Grantee within sixty (60) days of the end of each calendar year. The County may institute, reinstitute or waive the requirement of Grantee to make Replacement Capital Contributions to Grantor altogether, provided that Grantee is given sixty (60) days advance written notice. To the extent the County makes Access capital investments using County funds prior to receiving necessary Replacement Capital Contributions, the County is entitled to apply subsequent Replacement Capital Contributions payments from Grantee toward such County capital investments. If the Grantee elects to collect the initial capital contribution or the Replacement Capital Contributions from Subscribers, the County and Grantee agree that the initial capital contribution and any Replacement Capital Contributions will then be referred to on Subscribers' bills as a "PEG Fee", or language substantially similar thereto. Grantee shall not change such reference on the Subscribers' bills without the prior written consent of the County, which consent shall not be unreasonably withheld. The Fifteen Thousand Dollars ($15,000.00) capital contribution and the Replacement Capital Contributions payments described in this Section shall not be considered revenue for the purposes of calculating and are not an advance against any Agreement Fees and Grantee shall not be entitled to any offset or deduction from Agreement Fees paid or owed to the County for any such amounts so long as the Fifteen Thousand Dollars ($15,000.00) capital contribution and Replacement Capital Contributions are used for PEG Access capital support purposes. The Grantee shall have the opportunity to review records of the County and/or its Designated Access Providers regarding the use of such funds. 9.4 Management and Control of Access Channel The County shall have sole and exclusive responsibility for identifying the Designated Access Provider and allocating the Access resources under this Section. The County may authorize Designated Access Provider to control and manage the use of any and all Access facilities provided by Grantee under this Agreement, including, without limitation, the operation of Access Channel. To the extent of such designation by the County, the Designated Access Provider shall have sole and exclusive responsibility for operating and managing such Access facilities. The County or its designee may formulate rules for the operation of the Access Channel, consistent with this Agreement. Grantee shall cooperate with the County and Designated Access Provider in the use of the Cable System and Access facilities for the provision of Access. Nothing herein shall prohibit 24 the County from authorizing itself to be a Designated Access Provider. Nothing herein shall prohibit the County from assigning several Designated Access Providers to share a single Access Channel. The assigned Access Channel can be used to transmit signals in any format that is technically compatible with the Cable System, including, by way of example and not limitation, analog and digital video, audio only, secondary audio and/or text messages and video streaming. Such uses must be in furtherance of Access purposes. 9.5 Underutilized Access Channel Grantee and the County agree that it is their mutual goal to fully and efficiently use the Channel Capacity of the Cable System, which may include allowing the Grantee to use underutilized time on the Access Channel. If the Grantee believes that the Access Channel has significantly underutilized time, Grantee may file a request with the County to use that time. The County shall render a decision regarding the matter within sixty (60) days of receiving the request. Should the County find that the Access Channel or portion of the Access Channel may be used by the Grantee, then Grantee may begin using such time ninety (90) days after receipt of the decision. The Grantee's request shall not be unreasonably denied. It is acknowledged and agreed that the Access Channel shall not, during the term of this Agreement, revert back to Grantee and it shall be in the County's reasonable discretion to allow any usage of the Access Channel by Grantee so that the County maintains flexibility in terms of scheduling programming. 9.6 Access Channel On Basic Service The Access Channel provided to Subscribers under this Agreement shall be included by Grantee, without limitation, as a part of Basic Service. 9.7 Access Channel Assignments Grantee will use reasonable efforts to minimize the movement of Access Channel assignments. 9.8 Relocation of Access Channel Grantee shall provide the County with a minimum of ninety (90) days notice prior to the time any Access Channel designation is changed. 9.9 Technical Quality The Grantee shall maintain the Access Channel, and return lines at least the same level of technical quality and reliability required by this Agreement and all other applicable laws, rules and regulations for other Channels. The Grantee shall provide routine maintenance and shall repair and replace all transmission equipment as necessary to carry the signal as received from the County PEG Access facility to Subscribers without degradation of that signal. 9.10 Change In Technology In the event Grantee makes any change in the Cable System and related equipment and facilities or in Grantee's signal delivery technology, which affects the signal quality or transmission of Access services or programming, Grantee shall at its own expense take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment and training of Access personnel, to ensure that the capabilities of Access services are not diminished or adversely 25 affected by such change so that live and taped programming can be cablecast with as good or better signal quality than existed prior to such change. For example, this provision shall apply if the Cable System is converted from an analog to a digital format, such that the Access Channel must also be converted to a digital format in order to be received by Subscribers. 9.11 Information about Access Programming to Subscribers Upon written request by the County, Grantee shall include a reasonable level of information about Access programming in the installation packet provided to Subscribers. The County shall supply the materials, for insertion in the packet, in a format consistent with Grantee's requirements. SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION 10.1 Right to Construct Subject to Generally Applicable laws, regulations, rules, resolutions and ordinances of the County and the provisions of this Agreement, Grantee may perform all construction in the Rights-of--Way for any facility needed for the maintenance, upgrade or extension of Grantee's Cable System. 10.2 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. 10.3 General Standard All work authorized and required hereunder shall be done in a safe, thorough and workmanlike manner. All installations of equipment shall be permanent in nature, durable and installed in accordance with good engineering practices. (A) Grantee's System shall be constructed and maintained in such manner as not to interfere with sewers, water pipes or any other property of Grantor, or with any other pipes, wires, conduits, pedestals, structures or other facilities that may have been laid in Rights-of--Way by, or under, Grantor's authority. (B) Grantee shall provide and use any equipment and appliances necessary to control and cant' Grantee's signals so as to prevent injury to Grantor's property or properly 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. 26 (D) Grantee will maintain membership in good standing with the Utility Coordinating Council One Call Center, or other similar or successor organization designated to coordinate underground equipment locations and installations. Grantee shall abide by the Colorado State "Underground Utilities" statutes and will further comply with and adhere to local procedures, customs and practices relating to the one call locator service program. 10.4 Permits Required for Construction Prior to doing any work in the Right-of Way or other public property, Grantee shall apply for, and obtain, appropriate permits from the Count}z. As part of the permitting process, the County may impose such Generally Applicable conditions and regulations as are necessary for the purpose of protecting any structures in such Rights- of-Way, proper restoration of such Rights-of--Way and structures, the protection of the public, and the continuity of pedestrian or vehicular traffic. Grantee shall pay all Generally Applicable fees for the requisite County permits received by Grantee. 10.5 Emergency Permits In the event that emergency repairs are necessary, Grantee shall immediately notify the County of the need for such repairs. Grantee may initiate such emergency repairs and shall apply for appropriate permits within 48 hours after discovery of the emergency. 10.6 Compliance with Applicable Codes (A) Coun Construction Codes. Grantee shall comply with all Generally Applicable County construction codes, including, without limitation, the Uniform Building Code and other building codes, the Uniform Fire Code, the Uniform Mechanical Code, and zoning codes and regulations. (B) Tower Specifications. Antenna supporting structures (towers) shall be designed for the proper loading as specified by the Electronics Industries Association (EIA), as those specifications may be amended from time to time. Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable federal, State, and local codes or regulations. (C) Safety Codes. Grantee shall comply with all applicable federal, State and County safety requirements, rules, regulations, laws and practices, and employ all necessary devices as required by applicable law during construction, operation and repair of its Cable System. By way of illustration and not limitation, Grantee shall comply with the National Electric Code, National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards. 10.7 GIS Mapping Grantee shall comply with any future Generally Applicable ordinances, rules and regulations of the County regarding geographic information mapping systems for users of the Rights-of--Way. 10.8 Minimal Interference Work in the Right-of--Way, on other public property, near public property, or on or near private property shall be done in accordance with the County Regulation For Construction in the Public Way as may be amended from time to time and in a manner that causes the least interference with 27 the rights and reasonable convenience of properly owners and residents. Grantee's Cable System shall be constructed and maintained in such manner as not to interfere with sewers, water pipes, or any other property of the County, or with any other pipes, wires, conduits, pedestals, structures, or other facilities that may have been laid in the Rights-of--Way by, or under, the County's authority. The Grantee's Cable System shall be located, erected and maintained so as not to endanger or interfere with the lives of Persons, or to unreasonably interfere with new improvements the County may deem proper to make or to unnecessarily hinder or obstruct the free use of the Rights-of--Way or other public property, and shall not interfere with the travel and use of public places by the public during the construction, repair, operation or removal thereof, and shall not obstruct or impede traffic. In the event of such unreasonable interference, the County may require the removal or relocation of Grantee's lines, cables, equipment and other appurtenances from the property in question at Grantee's expense. 10.9 Prevent Injury/Safety Grantee shall provide and use any equipment and facilities necessary to control and cant' 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 safeguazded 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. 10.10 Hazardous Substances (A) Grantee shall comply with any and all applicable laws, statutes, regulations and orders concerning hazardous substances relating to Grantee's Cable System in the Rights-of--Way. (B) Upon reasonable notice to Grantee, the County may inspect Grantee's facilities in the Rights-of--Way to determine if any release of hazazdous substances has occurred, or may occur, from or related to Grantee's Cable System. In removing or modifying Grantee's facilities as provided in this Agreement, Grantee shall also remove all residues of hazardous substances related thereto. (C) Grantee agrees to indemnify the County against any claims, costs, and expenses, of any kind, whether direct or indirect, incurred by the County arising out of a release of hazazdous substances caused by Grantee's Cable System and/or any work relating to the Cable System. 10.11 Locates Prior to doing any work in the Right-of--Way, Grantee shall give appropriate notices to the County and to the notification association established in C.R.S. Section 9-1.5-I05, as such maybe amended from time to time. Within forty-eight (48) hours after any County bureau or agreement holders, licensee or permittee notifies Grantee of a proposed Right-of--Way excavation, Grantee shall, at Grantee's expense: 28 (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. 10.12 Notice to Private Property Owners Except in the case of emergency involving public safety or service interruptions to a large number of Subscribers, Grantee shall give reasonable advance notice to private property owners or legal tenants of work on or adjacent to private property. 10.13 Underground Construction and Use of Poles (A) When required by Generally Applicable ordinances, resolutions, regulations or rules of the County or applicable State or federal law, Grantee's Cable System shall be placed underground at Grantee's expense subject to applicable law unless funding is generally available for such relocation to all users of the Rights-of--Way. Placing facilities underground does not preclude the use of ground-mounted appurtenances. (B) Where electric, telephone, and other above-ground utilities are installed underground at the time of Cable System construction or upgrade, or when all such wiring is subsequently placed underground, all Cable System lines shall also be placed underground with other wireline service at no expense to the County or Subscribers unless funding is generally available for such relocation to all users of the Rights-of--Way. Related Cable System equipment, such as pedestals, must be placed in accordance with the County's applicable code requirements and rules. In azeas where either electric or telephone utility wiring is aerial, the Grantee may install aerial cable, except when a property owner or resident requests underground installation and agrees to bear the additional cost in excess of aerial installation. Nothing contained in this Section shall require Grantee to construct, operate, and maintain underground any ground-mounted appurtenances. (C) The Grantee shall utilize existing poles and conduit wherever possible. (D) In the event Grantee cannot obtain the necessary poles and related facilities pursuant to a pole attachment agreement, and only in such event, then it shall be lawful for Grantee to make all needed excavations in the Rights-of--Way for the purpose of placing, erecting, laying, maintaining, repairing, and removing poles, supports for wires and conductors, and any other facility needed for the maintenance or extension of Grantee's Cable System. All poles of Grantee shall be located as reasonably designated by the proper County authorities. (E) This Agreement does not grant, give or convey to the Grantee the right or privilege to install its facilities in any manner on specific utility poles or equipment of the County or any other Person. Copies of agreements for the use of poles, conduits or other utility facilities must be provided upon written request from the County. 29 (F) The Grantee and the County recognize that situations may occur in the future where the County may desire to place its own cable or conduit for Fiber Optic cable in trenches or bores opened by the Grantee. The Grantee agrees to cooperate with the County in any construction by the Grantee that involves trenching or boring, provided that the County has first provided reasonable notice to the Grantee in some manner that it is interested in sharing the trenches or bores in the area where the Grantee's construction is occurring. The Grantee shall allow the County to lay its cable, conduit and Fiber Optic cable in the Grantee's trenches and bores, provided the County shares in the cost of the trenching and boring on the same terms and conditions as the Grantee at that time,.shares the total cost of trenches and bores. The County shall be responsible for maintaining its respective cable, conduit and Fiber Optic cable buried in the Grantee's trenches and bores under this paragraph. 10.14 Undergrounding of Multiple Dwelling Unit Drops In cases of single site Multiple Dwelling Units, Grantee shall minimize the number of individual aerial drop cables by installing multiple drop cables underground between the pole and Multiple Dwelling Unit where determined to be technologically feasible in agreement with the owners and/or owner's association of the Multiple Dwelling Units. 10.15 Burial Standards (A) Depths• Unless otherwise required by law or the National Electric Code, Grantee shall comply with the following burial depth standards. In no event shall Grantee be required to bury its cable deeper than electric or gas facilities in the same portion of the Right-of--Way: Underground cable drops from the curb shall be buried at a minimum depth of three (3) inches. Feeder lines shall be buried at a minimum depth of eighteen (18) inches. Trunk lines shall be buried at a minimum depth of thirty-six (36) inches. Fiber Optic cable shall be buried at a minimum depth of thirty-six (36) inches. (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. 10.16 Electrical Bonding Grantee shall ensure that all cable drops are properly bonded to the electrical power ground at the home, consistent with applicable code requirements. All non-conforming or non-performing cable drops shall be replaced by Grantee as necessary. 30 10.17 Prewiring Any ordinance or resolution of the County which requires prewiring of subdivisions or other developments for electrical and telephone service shall be construed to include wiring for Cable Systems. 10.18 Repair and Restoration of Property (A) The Grantee shall protect public and private property from damage. If damage occurs, the Grantee shall promptly notify the property owner within twenty-four (24) hours in writing. (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. 10.19 Common Users (A) For the purposes of this subsection: (1) "Attachment" means any wire, optical fiber or other cable, and any related device, apparatus or auxiliary equipment, for the purpose of voice, video or data transmission. (2) "Conduit" or "Conduit Facility" means any structure, or section thereof, containing one or more Ducts, conduits, manholes, handhole or other such facilities in Grantee's Cable System. (3) "Duct" means a single enclosed raceway for cables, Fiber Optics or other wires. (4) "Licensee" means any Person licensed or otherwise permitted by the County to use the Rights-of--Way. 31 (5) ~ "Surplus Ducts or Conduits" are Conduit Facilities other than those occupied by Grantee or any prior Licensee, or unoccupied Ducts held by Grantee as emergency use spares, or other unoccupied Ducts that Grantee reasonably expects to use within two (2) years from the date of a request for use. (B) Grantee acknowledges that the Rights-of--Way have a finite capacity for containing Conduits. Therefore, Grantee agrees that whenever the County determines it is impracticable to permit construction of an underground Conduit system by any other Person which may at the time have authority to construct or maintain Conduits or Ducts in the Rights-of--Way, but excluding Persons providing Cable Services in competition with Grantee, the County may require Grantee to afford to such Person the right to use Grantee's Surplus Ducts or Conduits in common with Grantee, pursuant to the terms and conditions of an agreement for use of Surplus Ducts or Conduits entered into by Grantee and the Licensee. Nothing herein shall require Grantee to enter into an agreement with such Person if, in Grantee's reasonable determination, such an agreement could compromise the integrity of the Cable System. (C) A Licensee occupying part of a Duct shall be deemed to occupy the entire Duct. (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. 32 (G) In order to enforce the provisions of this subsection with respect to Grantee, the County must demonstrate that it has required that all similarly situated users of the Rights-of--Way to comply with the provisions of this subsection. 10.20 Acquisition of Facilities Upon Grantee's acquisition of facilities in any County Right-of--Way, or upon the addition to the County of any area in which Grantee owns or operates any facility, Grantee shall, at the County's request, submit to the Cou~iry a statement describing all facilities involved, whether authorized by agreement, permit, license or other prior right, and specifying the location of all such facilities to the extent Grantee has possession of such information. Such facilities shall immediately be subject to the terms of this Agreement. 10.21 Discontinuing Use/Abandonment of Cable System Facilities Whenever Grantee intends to discontinue using any facility within the Rights-of--Way, Grantee shall submit for the County a complete description of the facility and the date on which Grantee intends to discontinue using the facility. Grantee may remove the facility or request that the County permit it to remain in place. Notwithstanding Grantee's request that any such facility remain in place, the County may require Grantee to remove the facility from the Right-of--Way or modify the facility to protect the public health, welfare, safety, and convenience, or otherwise serve the public interest. The County may require Grantee to perform a reasonable combination of modification and removal of the facility. Grantee shall complete such removal or modification in accordance with a schedule set by the County. Until such time as Grantee removes or modifies the facility as reasonably directed by the County, or until the rights to and responsibility for the facility are accepted by another Person having authority to use, construct and/or maintain such facility, Grantee shall retain all liability for such facility and be responsible for all necessary repairs and relocations of the facility, as well as maintenance of the Right-of--Way, in the same manner and degree as if the facility were in active use. If Grantee abandons its facilities, the County may choose to use such facilities without charge for any purpose whatsoever including, but not limited to, Access purposes. If the County chooses to utilize any such abandoned facilities, Grantee's liability for those facilities shall cease. 10.22 Movement of Cable System Facilities For County Purposes The County shall have the right to require Grantee to relocate, remove, replace, modify or disconnect Grantee's facilities and equipment located in the Rights-of--Way or on any other property of the County in the event of an emergency or when reasonable public convenience requires such change (for example, without limitation, by reason of traffic conditions, Right-of--Way widening or altering, public safety, Right-of--Way vacation, Right-of--Way construction, change or establishment of Right-of--Way grade, installation of sewers, drains, gas or water pipes, or any other types of structures or improvements by the County for public purposes). Unless otherwise provided by state or federal law such work shall be performed at the Grantee's expense. Except during an emergency, the County shall provide reasonable notice to Grantee, not to be less than five (5) business days, and allow Grantee with the opportunity to perform such action. In the event of any capital improvement project exceeding $200,000 in expenditures by the County that requires the removal, replacement, modification or disconnection of Grantee's facilities or equipment, the County shall provide at least sixty (60) days' written notice to Grantee. Following notice by the County, Grantee shall relocate, remove, replace, modify or disconnect any of its facilities or equipment within any Right-of--Way, 33 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 shaze of such funds. If the Grantee fails to complete this work within the time prescribed and to the County's reasonable satisfaction, upon written notice to the Grantee and a reasonable opportunity to cure, the County may cause such work to be done and bill the reasonable cost of the work to the Grantee, including all reasonable costs and expenses incurred by the County due to Grantee's delay. In such event, the County shall not be liable for any damage to any portion of Grantee's Cable System unless the County acted in a negligent manner. Within thirty (30) days of receipt of an itemized list of those costs, the Grantee shall pay the County. Nothing herein shall be construed to waive rights, if any, Grantee may have for reimbursement of costs related to underground construction. 10.23 Movement of Cable System Facilities for Other Agreement Holders If any removal, replacement, modification or disconnection of the Cable System is required to accommodate the construction, operation or repair of the facilities or equipment of another County agreement holder, Grantee shall, after at least thirty (30) days' advance written notice, take action to effect the necessary changes requested by the responsible entity. Grantee may require that the costs associated with the removal or relocation be paid by the benefited party. 10.24 Temporary Changes for Other Permitees At the request of any Person holding a valid permit and upon reasonable advance notice, Grantee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The expense of such temporary changes must be paid by the permit holder, and Grantee may require a reasonable deposit of the estimated payment in advance. 10.25 Reservation of County Use of Right-of--Way Nothing in this Agreement shall prevent the County or public utilities owned, maintained or operated by public entities other than the County from constructing sewers; grading, paving, repairing or altering any Right-of-Way; laying down, repairing or removing water mains; or constructing or establishing any other public work or improvement. All such work shall be done, insofar as practicable, so as not to obstruct, injure or prevent the use and operation of Grantee's Cable System. 10.26 Rights-of--Way Vacation If any Rights-of--Way or portion thereof used by Grantee is vacated by Grantor during the term of this Agreement, unless Grantor specifically reserves to Grantee the right to continue the use of vacated Rights-of--Way, Grantee shall, within thirty (30) days written notice from Grantor to Grantee and subject to the provisions of applicable law without expense to Grantor, remove its facilities (unless utilities have been permitted to leave their facilities in place) from such Rights-of- Way, and restore, repair or reconstruct the Rights-of--Way where such removal has occurred. In the event of failure, neglect or refusal of Grantee, after thirty (30) days' notice by Grantor, to restore, repair or reconstruct such Rights-of--Way, Grantor may do such work or cause it to be done, and the 34 reasonable cost thereof, as found and declared by Grantor, shall be paid by Grantee within thirty _ _ (30) days of receipt of an invoice and documentation. ' 10.27 Tree Trimming Grantee may prune or cause to be pruned, using proper pruning practices, any tree in the County's Rights-of--Way which interferes with Grantee's Cable Systemo Grantee shall comply with any general ordinance or regulations of the County regarding tree trimming. Except in emergencies, Grantee may not prune trees ~t a point below thirty (30) feet above sidewalk grade until one (1) week written notice has been given to the owner or occupant of the premises abutting the Right-of- Way in or over which the tree is growing. The owner or occupant of the abutting premises may prune such tree at his or her own expense during this one (1) week period. If the owner or occupant fails to do so, Grantee may prune such tree at its own expense. For purposes of this subsection, emergencies exist when it is necessary to prune to protect the public or Grantee's facilities from imminent danger only. 10.28 Inspection of Construction and Facilities The County may inspect any of Grantee's facilities, equipment or construction at any time upon at least twenty-four (24) hours notice, or, in case of emergency as determined by the County, upon demand without prior notice. If an unsafe condition is found to exist, the County, in addition to taking any other action permitted under applicable law, may order Grantee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition by a time the County establishes. The County has the right to correct, inspect, administer and repair the unsafe condition if Grantee fails to do so, and to reasonably chazge Grantee therefor. 10.29 Codes Grantee shall strictly adhere to all building and zoning codes currently or hereafter in effect. Grantee shall arrange its lines, cables and other appurtenances, on public property, in such a manner as to cause no unreasonable interference with the use of said public property by any Person. In the event of such interference and consistent with the other provisions of this Agreement, Grantor may require the removal or relocation of Grantee's lines, cables and other appurtenances from the property in question. 10.30 Stop Work (A) On notice from the County that any work is being performed contrary to the provisions of this Agreement, or in an unsafe or dangerous manner as reasonably determined by the County, or in violation of the terms of any Generally Applicable permit, laws, regulations, ordinances, or standards, the work may immediately be stopped by the County. (B) The stop work order shall: (1) Be in writing; (2) Be given to the Person doing the work, or posted on the work site; (3) Be sent to Grantee by overnight delivery or by facsimile at the address given herein; 35 ` (4) Indicate the nature of the alleged violation or unsafe condition; and (5) Establish conditions under which work maybe resumed. 10.31 Standards (A) All work authorized and required hereunder shall be done in a safe, thorough and workmanlike manner. The Grantee must comply with all federal, State and local safety requirements, rules, regulations, laws and practices, and employ all necessary devices as required by applicable law during construction, operation and repair of its System. By way of illustration and not limitation, the Grantee must comply with the National Electric Code, National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards. (B) Grantee shall ensure that all cable drops are properly bonded and grounded at the home, consistent with applicable code requirements. All non-conforming ornon-performing cable drops shall be replaced by Grantee as necessary. (C) All installations of equipment shall be permanent in nature, durable and installed in accordance with good engineering practices and of sufficient height to comply with all federal, State and local regulations, ordinances and laws so as not to interfere in any manner with the right 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 traff c. (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 guazded and protected at all times by the placement of adequate barriers, fences or boarding, the bounds of which, during periods of dusk and darkness, shall be clearly mazked. 10.32 Work of Contractors and Subcontractors Work by contractors and subcontractors is subject to the same restrictions, limitations and conditions as if the work were performed by Grantee. Grantee shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were performed by it, and shall ensure that all such work is performed in compliance with this Agreement and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Grantee's responsibility to ensure that contractors, subcontractors or other Persons performing work on Grantee's behalf are familiaz with the requirements of this Agreement and other applicable laws governing the work performed by them. 36 SECTION 11. CABLE SYSTEM CONFIGURATION, TEC)EINICAL STANDARDS AND TESTING 11.1 Subscriber Network (A) Grantee's Cable System is two-way capable and provides bandwidth to at least 750 MHz. The Cable System is capable of delivering one hundred ten (110) Channels of analog and/or digital programming services to Subscribers, provided that the Grantee reserves the right to use the bandwidth in the future for other uses based on market factors. (B) Grantee shall retransmit all closed captioning programming received by the Cable System so long as the closed caption signal is provided consistent with FCC standards. All local signals received in stereo or with secondary audio tracks (broadcast and Access) shall be retransmitted in those same formats. (C) All construction shall be subject to the County's permitting process. (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. (E) Grantee's construction decisions shall be based solely upon legitimate business and engineering decisions and shall not take into consideration the income level of any particular community within the Agreement Area. I1.2 County Needs The County shall not be restricted from holding any hearing at any time to review whether or not the Cable System and the Cable Services offered by the Grantee are meeting demonstrated community needs. The parties recognize that, as of the Effective Date, the County is not permitted to require the provision of specific video programming pursuant to this subsection but is permitted to enforce the provision of broad categories of programming as set forth in Section 8. 11.3 Standby Power Grantee shall maintain standby power system supplies, rated for at least two (2) hours duration, throughout the trunk and distribution networks. 11.4 Emergency Alert Capability Grantee shall provide the County an operating Emergency Alert System ("EAS") in accordance with and as required by the provisions of FCC Regulation Part II, and as such provision may from time to time be amended. Grantee shall test the EAS as required by the FCC. Upon request, the County shall be permitted to participate in and/or witness the EAS testing. If the test indicates that the EAS is not performing consistent with FCC requirements, Grantee shall make any necessary adjustment to the EAS, and the EAS shall be retested. 37 11.5 Technical Performance The technical performance of the Cable System shall meet or exceed all applicable technical standards, as they may be amended from time to time, regardless of the transmission technology utilized. The County shall have the full authority permitted by applicable law to enforce compliance with these technical standazds. 11.6 Cable System Performance Testing (A) Grantee shall, at Grantee's expense, perform the following tests on its Cable System: (I) All tests required by the FCC; (2) All other tests reasonably necessary to determine compliance with technical standazds adopted by the FCC at any time during the term of this Agreement. (B) At present, required tests include: (1) Cumulative leakage index testing of any new construction; (2) Semi-annual compliance and proof of performance tests in conformance with generally accepted industry guidelines; (3) Tests in response to Subscriber complaints; (4) Periodic monitoring tests, at intervals not to exceed six (6} months, of Subscriber (field) test points, the Headend, and the condition of standby power supplies; and (5) Cumulative leakage index tests, at least annually, designed to ensure that one hundred percent (100%) of Grantee's Cable System has been ground or air tested for signal leakage in accordance with FCC standazds. (C) Grantee shall maintain written records of all results of its Cable System tests, performed by or for Grantee, in accordance with applicable law. Copies of such test results will be provided to the County upon written request. (D) If the FCC no longer requires proof of performance tests for Grantee's Cable System during the term of this Agreement, Grantee agrees that it shall continue to conduct proof of performance tests on the Cable System in accordance with the standards that were in place on the Effective Date, or any Generally Applicable standards later adopted, at least once a year, and provide written results of such tests to the County upon written request. (E) If County notifies Grantee that it wishes to have a representative present during its semi-annual testing of the Cable System, Grantee shall cooperate in scheduling its testing so that the representative can be present. Notwithstanding the above, all technical performance tests may be witnessed by representatives of the County. 38 (F) Grantee shall be required to promptly take such convective measures as are necessary to correct any performance deficiencies fully and to prevent their recurrence as far as possible. Grantee's failure to correct deficiencies identified through this testing process shall be a material violation of this Agreement. Sites shall be re-tested following correction. 11.7 Additional Tests Where there exists other evidence that in the judgment of the County casts doubt upon the reliability or technical quality of Cable Service, the County shall have the right and authority to require Grantee to test, analyze and report on the performance of the Cable System. Grantee shall reasonably cooperate with the County in performing such testing and shall prepare the results and a report, if requested, within thirty (30) days after testing. Such report shall include the following information: (A) The nature of the complaint or problem which precipitated the special tests; (B) The Cable System component tested; (C) The equipment used and procedures employed in testing; (D) The method, if any, in which such complaint or problem was resolved; and (E) Any other information pertinent to said tests and analysis which maybe required. SECTION 12. SERVICE AVAILABILITY AND SERVICE TO SCHOOLS AND PUBLIC BUILDINGS 12.1 Universal Service Grantee shall not arbitrarily refuse to provide Cable Services to any Person within its Agreement Area. Subject to Section 12.2 all Dwelling Units, Multiple Dwelling Units and commercial establishments in the Agreement Area shall have the same availability of Cable Services from Grantee's Cable System under non-discriminatory rates, subject to Section 4.3, and reasonable terms and conditions. The County acknowledges that the Grantee cannot control the dissemination of particular Cable Services beyond the point of demarcation at a Multiple Dwelling Unit. Notwithstanding the foregoing, Grantee may introduce new or expanded Cable Services on a geographically phased basis, where such services require an upgrade of the Cable System. Grantee may also charge for line extensions and non-Standard Installations pursuant to subsection 12.2. 12.2 Service Availability (A) In General. Except as otherwise provided herein, Grantee shall provide Cable Service within seven (7) days of a request by any Person within the County. For purposes of this subsection, a request shall be deemed made on the date of signing a service agreement, receipt of funds by Grantee, receipt of a written request by Grantee or receipt by Grantee of a verified verbal request. Grantee shall provide such service: 39 . (1) At anon-discriminatory installation charge for a Standazd installation, consisting of a one hundred twenty-five (125) foot drop connecting to an inside wall for Residential Subscribers, with additional charges for non-standazd installations computed according to a non- discriminatorymethodology for such installations, adopted by Grantee; (2) Atnon-discriminatory monthly rates for Residential Subscribers. (B) Service to Multiple Dwellin Units. The Grantee shall offer the individual units of a Multiple Dwelling Unit all Cable Services offered to other Dwelling Units in the County and shall individually wire units upon request of the property owner or renter who has been given written authorization by the owner; provided, however, that any such offering is conditioned upon the Grantee having legal access to said unit and provided that the Dwelling Unit can be accessed for wiring without the need to pass through any other Dwelling Unit. The County acknowledges that the Grantee cannot control the dissemination of particular Cable Services beyond the point of demarcation at a Multiple Dwelling Unit. (C) Whenever the Grantee receives a request for Cable Service from a customer in a contiguous unserved area where there are at least forty five (45) Dwelling Units within 5280 cable- bearing strand feet (one cable mile) from the portion of the Grantee's trunk or distribution cable which is to be extended, it shall extend its Cable System to such customer at no cost to said customer for the Cable System extension, other than the published standard installation fees charged to all customers. (D) Customer Chaz~es for Extensions of Service. No customer shall be refused service azbitrarily. However, for unusual circumstances, such as a customer's request to locate the cable drop underground, the existence of more than one hundred twenty-five (125) feet of distance from distribution cable to connection of service to customers, or a request from a customer in an area which does not meet the density requirement of subsection (C) above, service may be made available on the basis of a capital contribution in aid of construction, including cost of material, labor and easements. For the purpose of determining the amount of capital contribution in aid of construction to be borne by the Grantee and customers in the azea in which service may be expanded, the Grantee will contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of residences per 5280 cable- bearing strand feet of its trunk or distribution cable and whose denominator equals forty five (45). Customers who request service hereunder will bear the remainder of the construction and other costs on a pro rata basis. The Grantee may require that the payment of the capital contribution in aid of construction borne by such potential customers be paid in advance. Grantee shall permit Subscribers to make any lawful in-residence connections the Subscriber chooses without additional charge nor penalty to the Subscriber therefor. SECTION 13. AGREEMENT VIOLATIONS 13.1 Procedure for Remedying Agreement Violations (A) If the County believes that Grantee has failed to perform any obligation under this Agreement or has failed to perform in a timely manner, the County shall notify Grantee in writing, 40 stating with reasonable specificity the nature of the alleged default. Grantee shall have thirty (30) days from the receipt of such notice to: (1) respond to the County, contesting the County's assertion that a default has occurred, and requesting a meeting in accordance with subsection (B), below; or (2) cure the default; or (3) notify the County that Granttie cannot cure the default within the thirty (30) days, because of the nature of the default. In the event the default cannot be cured within thirty (30) days, Grantee shall promptly take all reasonable steps to cure the default and notify the County in writing and in detail as to the exact steps that will be taken and the projected completion date. In such case, the County may set a meeting in accordance with subsection (B) below to determine whether additional time beyond the thirty (30) days specified above is indeed needed, and whether Grantee's proposed completion schedule and steps are reasonable. (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 meeting in accordance with (A)(1), or the County orders a meeting in accordance with subsection (A)(3), the County shall set a meeting to investigate said issues or the existence of the alleged default. The County shall notify Grantee of the meeting in writing and such meeting shall take place no less than thirty (30) days after Grantee's receipt of notice of the meeting. At the meeting, Grantee shall be provided an opportunity to be heard and to present evidence in its defense. (C) If, after the meeting, the County determines that a default exists, the County shall, at a public meeting upon at least ten days notice where Grantee shall have an opportunity to be heard, order Grantee to correct or remedy the default or breach within fifteen (15) days or within such other reasonable time frame as the County shall determine. In the event Grantee does not cure within such time to the County's reasonable satisfaction, the County may order Grantee to correct or remedy the violation within a reasonable timeframe as Grantor shall determine and if Grantee fails to do so within timeframes provided herein, Grantor may (a) pursue any legal or equitable remedy available under this Agreement or any applicable law including but not limited to commencing an action at law for monetary damages; or (b) in the case of material breach, seek to revoke the Agreement. (D) The determination as to whether a violation of this Agreement has occurred shall be within the discretion of the County, provided that any such final determination may be subject to appeal to a court of competent jurisdiction under applicable law. 13.2 Revocation (A) In addition to revocation in accordance with other provisions of this Agreement, the County may revoke this Agreement and rescind all rights and privileges associated with this Agreement in the following circumstances, each of which represents a material breach of this Agreement: (1) If Grantee fails to perform any material obligation under this Agreement. 41 (2) If Grantee willfully fails for more than forty-eight (48) consecutive hours to provide continuous and uninterrupted Cable Service; (3) If Grantee attempts to evade any material provision of this Agreement or to practice any fraud or deceit upon the County or Subscribers; or (4) If Grantee becomes insolvent, or if there is an assignment for the benefit of Grantee's creditors; (5) If Grantee makes a material misrepresentation of fact in the application for or negotiation of this Agreement. (6) Grantee fails to maintain the required customer service location as provided in this Agreement; (7) Grantee abandons the System, or terminates the System's operations; (B) Following the procedures set forth in this Agreement, and prior to forfeiture or termination of the Agreement, the County shall give written notice to the Grantee of its intent to revoke the Agreement. The notice shall set forth the exact nature of the noncompliance. (C) Any proceeding under the paragraph above shall be conducted by the County Commissioners or its designee and open to the public. Grantee shall be afforded at least sixty (60) days prior written notice of such proceeding. (1) At such proceeding, Grantee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce evidence, and to call and question witnesses. A complete verbatim record and transcript shall be made of such proceeding and the cost shall be shared equally between the parties. The County Commissioners or its designee shall hear any Persons interested in the revocation, and shall allow Grantee, in particular, an opportunity to state its position on the matter. (2} Within ninety days after the hearing, the County Commissioners shall determine whether to revoke the Agreement and declare that the Agreement is revoked; or if the breach at issue is capable of being cured by Grantee, direct Grantee to take appropriate remedial action within the time and in the manner and on the terms and conditions that the County Commissioners or its designee determines are reasonable under the circumstances. If the County determines that the Agreement is to be revoked, the County shall set forth the reasons for such a decision and shall transmit a copy of the decision to the Grantee. Grantee shall be bound by the County's decision to revoke the Agreement unless Grantee appeals the decision to a court of competent jurisdiction within thirty (30) days of the date of the decision. (3) Grantee shall be entitled to such relief as the Court may deem appropriate. 42 (4) The County Commissioners may at its sole discretion take any lawful action which it deems appropriate to enforce the County's rights under the Agreement in lieu of revocation of the Agreement. 13.3 Procedures in the Event of Termination or Revocation (A) If this Agreement expires without renewal and is not extended or is otherwise lawfully terminated or revoked, the County may, subject to applicable law: Allow Grantee to maintain and operate its Cable System on a month-to-month basis or short-term extension of this Agreement for not less than six (6) months, unless a sale of the Cable System can be closed sooner or Grantee demonstrates to the County's satisfaction that it needs additional time to complete the sale. Grantee's continued operation of the Cable System during the six-month period or such other period as the parties may agree, shall not be deemed to be a waiver nor an extinguishment of any rights of either Grantee or County; or (B) In the event that a sale has not been completed in accordance with subsection (A) above, the County may order the removal of the above-ground Cable System facilities and such underground facilities from the County at Grantee's sole expense within a reasonable period of time as determined by the County. In removing its plant, structures and equipment, Grantee shall refill, at its own expense, any excavation that is made by it and shall leave all Rights-of--Way, public places and private property in as good condition as that prevailing prior to Grantee's removal of its equipment without affecting the electrical or telephone cable wires or attachments. The indemnification and insurance provisions and the collateral shall remain in full force and effect during the period of removal. (C) If Grantee fails to complete any removal required by this Agreement to the Count}fs reasonable satisfaction, after written notice to Grantee, the County may cause the work to be done and Grantee shall reimburse the County for the reasonable costs incurred within thirty (30) days after receipt of an itemized list of the costs, or if not paid within thirty (30) days the County may recover the costs through the collateral provided by Grantee. (D) The County may seek legal and equitable relief to enforce the provisions of this Agreement. 13.4 Receivership and Foreclosure (A} At the option of the County, subject to applicable law, this Agreement may be revoked one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of Grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless: (1) The receivership or trusteeship is vacated within one hundred twenty (120) days of appointment; or (2) The receivers or trustees have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this Agreement, and have remedied all defaults under the Agreement. Additionally, the receivers or trustees shall 43 have executed an agreement duly approved by the court having jurisdiction, by which the receivers or trustees assume and agree to be bound by each and every term, provision and limitation of this Agreement. (B) If there is a foreclosure or other involuntary sale of the whole or any part of the plant, property and equipment of Grantee, the County may serve notice of revocation on Grantee and to the purchaser at the sale, and the rights and privileges of Grantee under this Agreement shall be revoked thirty (30) days after service of such notice, unless: (1) The County has approved the transfer of the Agreement, in accordance with the procedures set forth in this Agreement and as provided bylaw; and (2) The purchaser has covenanted and agreed with the County to assume and be bound by all of the terms and conditions of this Agreement. 13.5 No Monetary Recourse Against the County Grantee shall not have any monetary recourse against the County or its officers, officials, boards, commissions and employees for any loss, costs, expenses or damages arising out of any provision or requirement of this Agreement or the enforcement thereof, in accordance with the provisions of applicable federal, State and local law. The rights of the County under this Agreement aze in addition to, and shall not be read to limit, any immunities the County may enjoy under federal, State or local law. 13.6 Alternative Remedies No provision of this Agreement shall be deemed to bar the right of the County to seek or obtain judicial relief from a violation of any provision of the Agreement or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this Agreement nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to recover monetary damages for such violations by Grantee, or to seek and obtain judicial enforcement of Grantee's obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. 13.7 Assessment of Monetary Damages (A) The County may assess against Grantee monetary damages for the following Agreement violations, of up to $100.00 per day for failure to provide the services and payments required by this Agreement including but not limited to the implementation and utilization of the PEG Access Channel; for failure to comply with construction, operation or maintenance standards; for failure to provide data, documents, reports required herein; and up to $100.00 per day for failure to comply with Customer Service Standards. To assess any amount of damages, the County shall follow the procedures for withdrawals from the security set forth in this Agreement. Such damages shall not accrue until beginning seventy five (75) days following Grantee's receipt of notice required by subsection 13.1(A) or at such later date if approved by the County in its sole discretion, but may not be assessed until after the procedures in subsection 13.1 have been completed. (B) The assessment of liquidated damages does not constitute a waiver by County of any other right or remedy it may have under the Agreement or applicable law, including its right to 44 recover from Grantee any additional damages, losses, costs and expenses that are incurred by County by reason of the breach of this Agreement. (C) The County and Grantee agree that the maximum length of time upon which monetary damages set forth in this Section 13.7 maybe imposed is ninety (90) days. SECTION 14. AGREEMENT RENEWAL AND TRANSFER 14.1 Renewal ' (A) The County and Grantee agree that any proceedings undertaken by the County that relate to the renewal of the Agreement shall be governed by and comply with the provisions of Section 62b of the Cable Act, unless the procedures and substantive protections set forth therein shall be deemed to be preempted and/or superseded by the provisions of any subsequent provision of federal or State law. (B) In addition to the procedures set forth in said Section 626(a), the County agrees to notify Grantee of the completion of its assessments regarding the identification of future cable- related community needs and interests, as well as the past performance of Grantee under the then current Agreement term. Notwithstanding anything to the contrary set forth herein, Grantee and County agree that at any rime during the term of the then current Agreement, while affording the public adequate notice and opportunity for comment, the County and Grantee may agree to undertake and finalize negotiations regarding renewal of the then current Agreement and the County may grant a renewal thereof. Grantee and County consider the terms set forth in this subsection to be consistent with the express provisions of Section 626 of the Cable Act. 14.2 Transfer of Ownership or Control (A) The Grantee's right, title or interest in the Cable System and this Agreement shall not be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right or interest or property therein pass to or vest in any Person or entity other than to an Affiliate controlling, controlled by or under common control with the Grantee without the prior written consent of the County, which consent shall be by the County Commissioners, acting by ordinance or resolution Such consent may not be unreasonably withheld. A change in control of the Grantee shall be considered a transfer and shall trigger the County's rights to review and require consent pursuant to this Section. No such consent shall be required for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title or interest of the Grantee in the Agreement or Cable System in order to secure indebtedness. (B) Within thirty (30) days of receiving a request for transfer, sale or assignment which shall include a completed FCC Form 394 and all required exhibits, the County shall notify the Grantee in writing of any additional information it reasonably requires to determine the legal, financial and technical qualifications of the transferee or assignee and any information related to the resolution of outstanding and unresolved issues of noncompliance with the terms and conditions of this Agreement by Grantee. If the County has not taken action on the Grantee's completed request for transfer, sale or assignment within one hundred twenty (120) days after receiving such request, consent by the County shall be deemed given. 45 (C) `Within thirty (30) days of any transfer, assignment, sale, or change in control if approved or deemed granted by the County, transferee or assignee shall file with the County a copy of the deed, agreement, lease or other written instrument evidencing such sale, transfer,'assignment, lease or change in ownership or control, certified and sworn to as convect by transferee or assignee. In the event of the assignment or transfer of the Agreement, the transferee or assignee shall file its written acceptance agreeing to be bound by all of the provisions of this Agreement, subject to applicable law. In the event of a change in control, in which the Grantee is not replaced by another entity, the Grantee will continue to be bound by all of the provisions of the Agreement. (D) In the event the Grantee purchases or acquires ownership or any other interest in any other Cable System in the Agreement Area, this Agreement shall survive as to the Agreement Area and the Cable System which is currently the subject of this Agreement shall continue to be operated under and governed by the terms of this Agreement. SECTION 15. SEVERABILITY If any Section, subsection, paragraph, term or provision of this Agreement is determined to be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other Section, subsection, paragraph, term or provision of this Agreement, all of which will remain in full force and effect for the term of the Agreement. SECTION 16. NIISCELLANEOUS PROVISIONS 16.1 Preferential or Discriminatory Practices Prohibited. In connection with the performance of work under this Agreement, the Grantee agrees not to refuse to hire, discharge, promote or demote, or discriminate in matters of compensation against any Person otherwise qualified, solely because of race, color, religion, national origin, gender, age, military status, sexual orientation, marital status, or physical or mental disability. Throughout the term of this Agreement, Grantee shall fully comply with all equal employment or non- discrimination provisions and requirements of federal, State and local laws, and in particular, FCC rules and regulations relating thereto. 16.2 Notices Throughout the term of the 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 postage prepaid to such respective address and such notices shall be effective upon the date of mailing. These addresses may be changed by the County or the Grantee by written notice at any time. At the Effective Date of this Agreement: 46 Grantee's address shall be: Comcast of Colorado/Florida, Inc. Attn: General Manager 1605 Grand Avenue Glenwood Springs, CO 81601 With a copy to: Comcast ofColorado/Florida, Inc. Attn: Government Affairs 8000 East Iliff Avenue Denver, CO 80231 The Counts address shall be: Office of the County Attorney 500 Broadway Eagle, Colorado 81631 16.3 Cumulative Rights Subject to applicable law, all rights and remedies given to the County by this Agreement or 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 maybe 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. 16.4 Venue The venue for any dispute related to this Agreement in Federal Court shall be in the United States District Court for the District of Colorado or for State Court shall be in the Eagle County District Court in Eagle, Colorado. 16.5 Governing Law This Agreement shall be governed in all respects by applicable federal law, the laws of the State of Colorado and local laws. 16.6 Descriptive Headings The headings and titles of the Sections and subsections of this Agreement are for reference purposes only, and shall not affect the meaning or interpretation of the text herein. 16.7 Publication Costs to be Borne by Grantee Grantee shall reimburse the County for all costs incurred in publishing this Agreement, if such publication is required. 47 e < < 16.8 Binding Effect This Agreement shall be binding upon the parties hereto, their permitted successors and assigns. 16.9 No Joint Venture Nothing herein shall be deemed to create a joint venture or principal-agent relationship between 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. 16.10 Waiver The failure of the County at any time to require performance by the Grantee of any provision hereof shall in no way affect the right of the County hereafter to enforce the same. Nor shall the waiver by the County 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. 16.11 Reasonableness of Consent or Approval Whenever under this Agreement "reasonableness" is the standard for the granting or denial of the consent or approval of either party hereto, such party shall be entitled to consider public and governmental policy, moral and ethical standards as well as business and economic considerations. 16.12 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. 16.13 Compliance with Federal, State, and Local Laws The Grantee shall comply with applicable federal, state and local laws, rules and regulations now existing or hereafter adopted consistent with the other provisions of this Agreement. 16.14 Force Majeure The Grantee shall not be held in default under, or in noncompliance with, the provisions of 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, by way of example, war or riots, civil disturbances, floods or other natural catastrophes, labor stoppages, slow downs, 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. 16.15 Attorneys' Fees If any action or suit arises in connection with this Agreement, the prevailing party (either the County or Grantee, as the case may be) shall be entitled to recover all of its reasonable attorneys' fees, costs and expenses in connection therewith, in addition to such other relief as the court may deem proper. 48 IN WITNESS WHEREOF, this Agreement is signed as of this 30th day of March, 200.4. ATTEST: --~, County Clerk APPROVED AS TO FORM: County Attorney W T: ~,~. w- ,-; SS3M'+S3"3("3'6'SY~f'6Ts'd1M'IfSB'6U'H~fB'8"6II85"Q'U"b'If GLENN E. WALKER NOTARY PUBLlC STATE OF COLORADO omm sston xpires n. , ty~~~~r ;~?'~'t:JN p_cr;~ jn;~9S:t~_ EAGLE COUNTY, COLORADO: Chairman, Board of County Commissioners COMCAST OF COLORADO/FLORIDA, INC. ~-~ , ' `t A By: ~` Title: I/_" 49 1. (~l~r~; .,. _.~._ ~ :1~r a, v._w... _.... _ .a.._..__._ j'F i ._. _., , U .....-.~. - b