HomeMy WebLinkAboutagenda.council.worksession.20090721MEMORANDUM
TO: Mayor and City Council
FROM: Don Taylor, Director of Finance
THRU:
DATE OF MEMO: July 17, 2009
MEETING DATE: July 21, 2009
RE: Review Draft Comcast Cable Franchise Agreement
REQUEST OF COUNCIL: Staff requests Council to review major provisions of draft Cable
TV Franchise Agreement and to provide staff guidance as to acceptability of terms or alternative
terms that they would desire to see in the agreement. °`
PREVIOUS COUNCIL ACTION: City Council last reviewed the terms of the franchise
agreement when the current one was adopted in April, 2000
BACKGROUND: Over the last year, the City of Aspen, Pitkin County, and the Town of
Snowmass Village have been negotiating with Comcast Cable TV Company over the terms of
their respective franchises. We jointly employed the services of River Oaks Communication
company which is a consulting agency specializing in utility franchise agreements. The
arrangement had benefits to all of the parties as it gave us more negotiating power, economies of
scale on the consulting services and gave a benefit to Comcast of getting three franchises done at
once and had a single point of contact.
The franchise agreement is essentially a contract between the City and the Cable TV Company,
giving the Cable Company the right to use the City Rights of Way to install its facilities and
equipment, under terms and conditions provided for in the Agreement, in exchange for certain
considerations given to the City. The federal government has imposed numerous preemptions on
what can be included or negotiated in the terms of the agreement so the City is limited as to what
it can negotiate for these agreements.
DISCUSSION: The current agreement expires in May, 2010. Comcast would like a few
months for it to go through their corporate review, so ideally we would like to be done by
October. This gives us plenty of time to follow up on any questions the Council may have.
Page 1 of 2
There aze several major provisions of the agreement that aze outlined below with a little
background information for each.
• Term: The proposed of the agreement is 7 yeazs, a few yeazs shorter than the last
agreement which was ten years. These have tended to be shorter and were originally
offered at five by Comcast. There aze costs to renegotiating the franchise and this will
allow two more yeazs to amortize the costs over.
• Franchise fee: The proposed franchise fee is 5% of gross revenues, the same as the
previous franchise agreement. This is capped by the FCC.
• Complimentary Service: The city continues to receive complimentary service for City
governmental buildings.
• Pubic, Education, Government (PEG) Channels: The City of Aspen, Town of Snowmass
Village, and Pitkin County, have access to three channels on the system at no additional
chazge.
• PEG access fee. This is a new provision and council guidance is requested. The PEG
access fee would assess 50 cents per residential subscriber per month to fund capital
expenditures related to providing PEG service. This would be passed on to the consumer
and separately displayed on the residential bills. It would generate about $15,500 a yeaz
for reimbursement of capital costs actually expended for this purpose and could be
utilized by the city for the costs of the studio in the council chambers, upgrades or
replacement of equipment or it can be granted to other providers of PEG access for their
equipment costs, such as Grassroots.
• Competitive Equity: The agreement provides that if the City were to grant a franchise to
a competing cable TV provider with terms to the competitor better than the terms in this
agreement we will modify this agreement to include those more favorable terms.
FINANCIALBUDGET IMPACTS If the Council chooses to assess the capital
equipment subscriber fee the City could recover $15,000 per year of equipment costs or make
that available to other PEG programming providers for their equipment costs.
RECOMMENDED ACTION There is no specific recommendation by staff.
ALTERNATIVES: Council can propose alternatives to the terms that are not covered by FCC
regulation. This would relate primarily to the PEG equipment fee, the term of the agreement or
the competitive equity clause.
PROPOSED MOTION: Direction as to additional information requested by Council as it
relates to this franchise
'~
Page 2 of 2
CITY OF ASPEN, COLORADO
CABLE FRANCHISE AGREEMENT
DRAFT - Juue 5, 2009
CABLE FRANCffiSE AGREEMENT
This Cable Franchise Agreement ("Agreement" or "Franchise") is entered into in Aspen,
Colorado, this day of , 2009, by and between the City of Aspen hereinafter
(the "City" or "Grantor") and Comcast of Colorado/Florida, Inc., who is hereinafter known as
"Grantee". The City and Grantee aze sometimes referred to hereinafter collectively as the
"parties."
SECTION 1. RECITALS
1.1 The City is authorized to exercise all of the powers as provided by law.
1.2 Pursuant to Federal law, the City has the authority to grant franchises to companies to
build and operate cable systems in the City.
1.3 The City has reviewed Grantee's performance under the prior Agreement and the quality
of service during the prior Agreement term, has identified the future cable-related needs and
interests of the City and its citizens, has considered the financial, technical and legal
qualifications of Grantee, and has determined that Grantee's plans for operating and maintaining
its System are adequate, in a full public proceeding affording due process to all parties.
1.4 The City has a legitimate and necessary regulatory role in ensuring the availability of
cable service, technical capability and reliability of systems in its jurisdiction, the availability of
local programming (including Public, Educational and Governmental Access programming) and
quality Customer service.
1.5 The City is authorized by applicable law to grant one or more nonexclusive Agreements
to construct, operate and maintain cable systems within the boundaries of the City.
NOW, THEREFORE, in consideration of the mutual promises made herein, and other
good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
City and Grantee do hereby agree as follows:
SECTION 2. DEFINITIONS
For the purposes of this Agreement, the following terms, phrases, words and their derivations
shall have the meanings given herein. When not inconsistent with the context, words used in the
present tense include the future, words in the plural include the singular, and words in the
singulaz 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" means the availability for Noncommercial use by various public, educational and
governmental agencies, institutions and organizations in the community, including the City and
its designees, of Channels on the System designated for such use as permitted under applicable
law:
(A) "Public Access" means Access where local institutions or residents aze the
primary users having editorial control over programming and services.
(B) "Educational Access" means Access where Schools are the primary users having
editorial control over programming and services.
(C) "Governmental Access" means Access where governmental institutions or their
designees aze the primary users having editorial control over programming and services.
(D) "Public Educational and Governmental Access" or "PEG Access" means the
availability for Noncommercial use of capacity on a Channel or Channels on the Cable System
by various governmental and educational agencies and institutions and public organizations,
groups and individuals, including the City and its designees.
"Access Channel" means any Channel, or portion thereof, designated for Noncommercial
Access purposes or otherwise made available to facilitate or transmit Access progranming.
"Affdiate" 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.
"A2reement" means the document in which this definition appears, that is executed between the
City and Grantee, containing the specific provisions of the authorization granted and the
contractual and regulatory agreement created hereby.
"Bad Debt" means amounts lawfully owed by a Subscriber and accrued as revenues on the
books of Grantee, but not collected after reasonable efforts by Grantee.
"Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission
of local television broadcast signals and Access programming.
"Cable Act" means the Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992, and as amended by the
Telecommunications Act of 1996, and any amendments thereto.
"Cable Operator" means any Person or group of Persons, including Grantee, who provide
Cable Service over a Cable System and directly or through one or more Affiliates own a
significant interest in such Cable System or who otherwise control or aze responsible for, through
any azrangement, the management and operation of such a Cable System.
"Cable Service" means the one-way transmission to Subscribers of Video Programming, or
other programming service and Subscriber interaction, if any, that is required for the selection or
use of such Video Programming or other programming service.
"Cable System" or "System" means a facility, consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment that is designed to provide
Cable Service that includes Video Programming and that is provided to multiple Subscribers
within a community, but such term does not include (1) a facility that serves only to retransmit
the television signals of one or more television broadcast stations; (2) a facility that serves
Subscribers without using any public Right-of--Way; (3) a facility of a common carrier that is
subject, in whole or in part, to the provisions of Title II of the Communications Act (47 U.S.C.
Section 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. Section 541(c)) to the extent such facility is used in the
transmission of Video Programming directly to Subscribers, unless the extent of such use is
solely to provide interactive on-demand services; (4) an open video system that complies with
federal laws and regulations; or (5) any facilities of any electric utility used solely for operating
its electric utility systems. When used herein, the term "Cable System" or "System" shall mean
Grantee's Cable System in the Franchise Area unless the context indicates otherwise.
"Channel" means a cable channel as defined in 47 U.S.C. Section 522 (4).
"Desienated Access Provider" means the entity or entities designated by the City to manage or
co-manage PEG Access Channel(s) and facilities. The City may be a Designated Access
Provider.
"Expanded Basic Service" means the level of cable programming services received by most
Subscribers above Basic Service and does not include premium orpay-per-view services.
"FCC" means the Federal Communications Commission or its lawful successor.
"Franchise Area" means the incorporated azea within the jurisdictional boundaries of the City.
"Gross Revenues" means any and all revenue derived directly or indirectly by Grantee, or by
Grantee's Affiliates as determined in accordance with GAAP (generally accepted accounting
principles) from the operation of the Grantee's Cable System to provide Cable Services in the
Franchise Area Gross Revenues include, by way of illustration and not limitation, monthly and
other fees charged Subscribers for Cable Services including Basic Service, Expanded Basic
Service, any Tiers of Cable Service, Premium Service, digital service, HDTV service, pay-per-
view, Cable Service installation, disconnection, reconnection and change-in-service fees, Leased
Access Channel fees, all Cable Service lease payments from the Cable System, late fees and
administrative fees, payments received by the Grantee from programmers for carriage of Cable
Services on the Cable System, revenues from rentals of converters or other Cable System
equipment, advertising revenues (including local, regional and national advertising carried on the
Cable System in the Franchise Area and net of commissions paid to an advertising agency),
revenues from program guides, additional outlet fees, franchise fees, revenue from interactive or
other services to the extent they aze considered Cable Services under federal or State law, 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 franchise fees. Gross Revenues shall not include (i) Bad Debt,
provided, however, that all or pazt of any such Bad Debt that is written off but subsequently
collected shall be included in Gross Revenues in the period collected; or (ii) any taxes on
services furnished by the Grantee that aze imposed directly on any Subscriber or user by the
State, City or other governmental unit and that aze collected by the Grantee on behalf of said
governmental unit; or (iii) the Initial Capital Contribution and monthly Capital Contributions as
required by subsection 10.5 of this Agreement. The franchise fees aze not a tax, and are
therefore included in Gross Revenues.
"Headend" or "Hub" means any facility for signal reception and dissemination on the System,
including cables, antennas, wires, satellite dishes, monitors, switchers, modulators, processors
and other related equipment and facilities.
"Noncommercial" means those products and services that aze not promoted or sold. This term
shall not be interpreted to prohibit an Access Channel operator or programmer from soliciting
and receiving financial support to produce and transmit Video Programming on an Access
Channel or from acknowledging a contribution, subject to applicable law.
"Person" means any natural person, sole proprietorship, partnership, joint venture, association,
limited liability entity or corporation, or any other form of entity or organization.
"Premium Service" means Video Programming or other programming service choices (such as
movie Channels) offered to Subscribers on aper-Channel basis.
"Ri¢ht-of-Wav" or "Ri¢hts-of-Wav" means land acquired or dedicated to the public or
hereafter acquired or dedicated to the public and maintained under public authority or by others
including, but not limited to, public streets or roads, highways, avenues, lanes, alleys, bridges,
sidewalks, easements, dedicated utility strips and similaz public property or other property
dedicated for compatible uses now or hereafter held by the City within the Franchise Area which
shall entitle the Grantee to the use thereof for the purpose of installing, operating, repairing and
maintaining the Cable System.
"School" means any State-accredited K-12 public educational iristitution excluding home
schools.
"State" means the State of Colorado.
"Subscriber" or "Customer" means any Person who lawfully receives Cable Services provided
by Grantee by means of the System with Grantee's express permission.
(A) "Commercial Subscriber" means any Subscriber other than a Residential
Subscriber.
(B) "Residential Subscriber" means any Person who receives Cable Service
delivered to single units (as opposed to those on a bulk billing basis).
"Tier" means a category of Cable Services provided by the Grantee for which a separate
periodic rate is chazged.
"Video Proerammin¢" means programming provided by, or generally considered comparable
to programming provided by, a television broadcast station or cable programmer.
SECTION 3. GRANT OF AGREEMENT
4
3.1 Grant
(A) The City hereby grants to Grantee a nonexclusive authorization to make
reasonable and lawful use of the Rights-of--Way within the Franchise Area to construct, operate,
maintain, reconstruct, repair and upgrade a System for the purpose of providing Cable Services,
subject to the terms and conditions set forth in this Agreement and applicable law. This
Agreement shall constitute a right to provide the Cable Services required by and to fulfill the
obligations set forth in this Agreement.
(B) The Grantee, through this Agreement, is granted the right to operate its System
using the City's Rights-of--Way within the Franchise Area incompliance with all construction
codes and regulations. The Grantee specifically agrees to comply with the provisions of
generally applicable City ordinances; provided that in the event of a conflict between the
provisions of ordinances and this Agreement, the express provisions of this Agreement shall
govern. Subject to federal and State preemption, the express provisions of this Agreement
constitute a valid and enforceable contract between the parties.
(C) This Agreement shall not be interpreted to prevent the City from imposing other
conditions, to the extent permitted by law, including additional compensation conditions for use
of the Rights-of--Way, should Grantee provide service other than Cable Service.
(D) Grantee promises and guazantees, as a condition of exercising the privileges
granted by this Agreement, that any Affiliate offering Cable Service in the Franchise Area, or
directly involved in the management or operation of the System in the Franchise Area, will
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 authorization required for the privilege of transacting and
carrying on a business within the City that may be required by laws of the City.
(2) Any agreement or authorization required by the City for Rights-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 agreements for occupying any other property of the City or private
entities to which access is not specifically granted by this Agreement including, without
limitation, agreements for placing devices on poles, in conduits or in or on other structures.
(F) This Agreement is intended to convey limited rights and interests only as to those
Rights-of--Ways in which the City has an actual interest. It is not a warranty of title or interest in
any Rights-of--Way; it does not provide the Grantee with any interest in any particulaz location
within the Rights-of--Way; and it does not confer rights other than as expressly provided in the
grant hereof.
(G) This Agreement is an express authorization to provide Cable Services only and
does not authorize or prohibit Grantee's provision of non-Cable Services, telecommunications
services or information services in the Franchise Area. This Agreement is not a baz to the
imposition of any lawful conditions on Grantee with respect to non-Cable Services,
telecommunications services or information services. This Agreement does not relieve Grantee
of any obligation it may have to obtain from the City an authorization to provide non-Cable
Services, telecommunications services or information services or relieve Grantee of its obligation
to comply with any such authorization(s) that may be lawfully required.
3.2 Use of Rights-of--Way
(A) Grantee may erect, install, construct, repair, replace, reconstruct and retain in, on,
over, under, upon, across, through, below and along the Rights-of--Way within the Franchise
Area, such wires, cables (both coaxial and fiber optic), conductors, ducts, conduits, vaults,
manholes, amplifiers, pedestals, attachments and other property and equipment as are necessary
and appurtenant to the operation of the System for the provision of Cable Services within the
Franchise Area.
(B) Grantee must install System facilities in a manner that minimizes interference
with the use of the Rights-of--Way by others including others that may be installing
communications facilities.
3.3 Duration
The term of this Agreement and all rights, privileges, obligations and restrictions pertaining
thereto shall be for seven (7) years, unless lawfully terminated sooner as hereinafter provided.
3.4 Effective Date
(A) The effective date of this Agreement shall be , 2009.
(B) The grant of this Agreement shall have no effect on the Grantee's duty under the
prior agreement or any ordinance in effect prior to the effective date of this Agreement to
indemnify or insure the City against acts and omissions occurring during the period that the prior
agreement was in effect, nor shall it have any affect upon liability to pay all franchise fees (for
any prior yeazs) that were due and owed under a prior agreement. Except as indicated in this
Subsection 3.4 (B), Ordinance No. shall be of no further force or effect.
3.5 Competitive Equity
(A)The Grantee acknowledges and agrees that the City reserves the right to grant one (1) or
more additional franchises or other similaz lawful authorization to provide Cable Services
within the Franchise Area; provided, the City agrees that, within ninety (90) days of the
Grantee's request, it shall amend this Franchise to include any material terms or conditions
that it makes available to a new entrant for a Cable System, or provide relief from existing
material terms or conditions, so as to ensure that the regulatory and financial burdens on each
Cable Operator aze materially equivalent. For the purposes of this Subsection 3.5(A)
6
"material terms and conditions" include, but are not limited to: Franchise Fees; insurance;
System build-out requirements; security instruments; Public, Education and Government
Access Channels and support; customer service standazds; required reports and related record
keeping; and notice and opportunity to cure breaches. The parties agree that this provision
shall not require a word for word identical franchise or authorization for a competitive Cable
Operator so long as the regulatory and financial burdens on each entity aze materially
equivalent. Video Programming services delivered via wireless, Direct Broadcast Satellite,
SMATV or any entity that does not use the public Rights-of--Way are specifically exempted
from the requirements of this Subsection.
(B) Notwithstanding any provision to the contrary, if the Franchise is not modified as set
forth in Subsection 3.5 (A) above, then at any time prior to the commencement of the
Grantee'sthirty-six (36) month renewal window provided by Section 626 of the Cable Act,
that anon-wireless facilities based Cable Operator, legally authorized by state or federal law,
makes available for purchase by Subscribers or Customers, Cable Services or multiple
Channels of Video Programming within the Franchise Area without a franchise or other
similar lawful authorization granted by the City, then the term of Grantee's Franchise shall,
upon ninety (90) days written notice from Grantee, be shortened so that the Franchise shall
be deemed to expire on a date thirty six (36) months from the first day of the month
following the date of Grantee's notice. Grantee shall immediately thereafter secure franchise
renewal rights pursuant to Section 626 of the Cable Act with no further notice to the City
required. The City and Grantee shall then enter into proceedings consistent with Section 626
regazding the renewal process with respect to this Franchise. The City and Grantee shall
have all rights and obligations provided under said Section 626.
(C) Notwithstanding any provision to the contrary, should any non-wireless facilities
based entity provide Cable Service within the Franchise Area during the term of this
Franchise without a franchise granted by the City, then Grantee may assert, at Grantee's
option, that this Franchise is rendered "commercially impracticable," and invoke the
modification procedures set forth in Section 625 of the Cable Act.
3.6 Familiarity with Agreement
The Grantee acknowledges and warrants by acceptance of the rights, privileges and agreement
granted herein, that it has cazefully read and fully comprehends the terms and conditions of this
Agreement and is willing to and does accept all reasonable risks of the meaning of the
provisions, terms and conditions herein.
3.7 Effect of Acceptance
By accepting the Agreement, the Grantee: (1) acknowledges and accepts the City's legal right to
issue and enforce the Agreement; (2) accepts and agrees to comply with each and every
provision of this Agreement subject to applicable laws; and (3) agrees that the Agreement was
granted pursuant to processes and procedures consistent with applicable law, and that it will not
raise any claim to the contrary.
3.8 Police Powers
Grantee's rights hereunder are subject to the lawful police powers of the City to adopt and
enforce laws, ordinances, resolutions and regulations necessary to the safety, health and welfaze
of the public, and Grantee agrees to comply with all generally applicable laws, ordinances,
resolutions and regulations lawfully enacted.
SECTION 4. FRANCHISE FEES AND FINANCIAL CONTROLS
4.1 Franchise Fees
As compensation for the use of the City's Rights-of--Way, Grantee shall pay as a franchise fee to
the City, throughout the duration of this Agreement, an amount equal to five percent (5%) of
Grantee's Gross Revenues. Accrual of such franchise fees using the Gross Revenue definition
provided herein shall commence within sixty (60) days after the effective date of this Agreement.
During such sixty (60) day period, Grantee shall continue to accrue and pay franchise fees based
upon the Agreement in effect with the City prior to this Agreement.
4.2 Payments
Grantee's franchise fee payments to the City shall be computed quarterly for the preceding
calendaz 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.
4.3 Acceptance of Payment
No acceptance of any payment shall be construed as an accord by the City that the amount paid
is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of
any claim the City may have for further or additional sums payable or for the performance of any
other obligation of Grantee.
4.4 Franchise Fee Reports
Each payment shall be accompanied by a written report to the City verified by an authorized
representative of Grantee, containing an accurate statement in summarized form, as well as in
detail, of Grantee's Gross Revenues and the computation of the payment amount. Upon written
request, Grantee shall, no later than thirty (30 days after the end of each calendaz yeaz, furnish to
the City a statement of Gross Revenues and all payments, deductions and computations for the
year just ended.
4.5 Audits
On an annual basis, upon thirty (30) days prior written notice, the City shall have the right to
conduct an independent audit of Grantee's records reasonably related to the enforcement of this
Agreement and to calculate any amounts determined to be payable under this Agreement.
Provided Grantee cooperates in making all relevant records available to City's representative
upon reasonable advance written request, the City will in good faith attempt to complete each
audit within six (6) months, and the audit period shall not be any greater than the previous three
(3) years. Any undisputed amounts due to the City as a result of the audit shall be paid within
thirty (30) days following written notice to the Grantee by the City, which notice shall include a
copy of the audit findings. If an underpayment is discovered as the result of an audit, Grantee
shall pay, in addition to the amount due, interest at the prime rate as listed in the Wall Street
Journal on the date the payment was due calculated from the date the underpayment was
originally due until the date the Grantee sends the payment. If the audit shows that franchise fees
have been underpaid by ten percent (10%) or more in a calendaz yeaz, Grantee shall pay the cost
of the audit up to a maximum of $ 10,000.
4.6 Financial Records
Grantee agrees to meet with a representative of the City upon request to review Grantee's
methodology ofrecord-keeping, financial reporting, the computing of franchise fee obligations,
the understanding of which the City deems necessary for reviewing reports and records that aze
relevant to the enforcement of this Agreement.
4.7 Interest on Late Payments
In the event any payment is not received within forty five (45) days from the end of the calendar
quarter, Grantee shall pay, in addition to the payment or sum due, interest on the amount due at
the prime rate as listed in the Wall Street Journal calculated from the date the payment was due ~
until the date the Grantor receives the payment.
4.8 Additional Commitments Not Franchise Fees
No term or condition in this Agreement shall in any way modify or affect Grantee's obligation to
pay franchise fees. Although the total sum of franchise 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 are excluded from franchise fees and aze not to be offset or credited against any
franchise fee payments due to the City, nor do they represent an increase in franchise fees to be
passed through to Subscribers pursuant to federal law.
4.9 Payment on Termination
If this Agreement terminates for any reason, the Grantee shall file with the City within thirty (30)
calendaz days of the date of the termination, a financial statement, certified by an independent
certified public accountant, showing the Gross Revenues received by the Grantee since the end
of the previous fiscal yeaz. Within thirty (30) days of the filing of the certified statement with
the City, Grantee shall pay any unpaid amounts as indicated. If the Grantee fails to satisfy its
remaining financial obligations as required in this Agreement, the City may do so by utilizing the
funds available in security provided by the Grantee.
9
4.10 Bundling
The City acknowledges that, during the term of this Agreement, Grantee may offer to its
Subscribers a bundled or combined package of services consisting of Cable Services and non-
Cable Services. The Grantee may not unfairly or unlawfully allocate prices for bundled services
for the purpose of evading payment of franchise fees to the City. If a dispute arises between the
parties regarding this matter, the City and Grantee will meet within ten (10) days of such notice
to the other and discuss such matters in good faith in an attempt to reach a reasonable
compromise thereof.
4.11 Tax Liability
The franchise fees shall be in addition to any and all taxes or other levies or assessments which
are now or hereafter required to be paid by businesses in general by any law of the City, the State
or the United States including, without limitation, sales, use, utility and other taxes, business
license fees or other payments. Payment of the franchise fees under this Agreement shall not
exempt Grantee from the payment of any other generally applicable license fee, permit fee, tax
or chazge on the business, occupation, property or income of Grantee that maybe lawfully
imposed by the City, State or the United States.
SECTION 5. ADMINISTRATION AND REGULATION
5.1 Authority
The City shall be vested with the power and right to administer and enforce the requirements of
this Agreement and the regulations and requirements of applicable law in the public interest,
including the Cable Act, or to delegate that power and right of administration, or any part
thereof, to the extent authorized under federal, State and local law, to any agent in the sole
discretion of the City provided written notice thereof is given to the Grantee. Grantee shall have
the right to appeal to the City Council any adverse determination made by the City delegate.
5.2 Rates and Charges
All of Grantee's rates and chazges related to or regazding Cable Services shall be subject to
regulation by the City (if the City so elects to regulate) to the full extent authorized by applicable
federal, State and local laws.
5.3 No Rate Discrimination
(A) All of Grantee's rates and chazges shall be published (in the form of a publicly-
available rate card), and shall be non-discriminatory as to all Persons of similar classes, under
similaz circumstances and conditions. Nothing herein shall be construed to prohibit:
(1) the temporary reduction or waiving of rates or chazges in conjunction with
promotional campaigns; or
(2) the offering of reasonable discounts to similarly situated Persons.
10
(B) The Grantee's late fee and disconnection policies and practices shall be non-
discriminatory, and such policies and practices, and any fees imposed pursuant to this subsection,
shall apply equally in all parts of the Franchise Area without regazd to the neighborhood or
income level of the Subscribers.
5.4 Filing of Rates and Charges
(A) Upon written request, Grantee shall provide the City a complete schedule of
applicable rates and charges for Cable Services provided under this Agreement.
(B) On an annual basis, Grantee shall upon written request provide a complete
schedule of current rates and chazges to lease a Leased Access Channel. The schedule shall
include a description of the price, terms and conditions established by Grantee for Leased Access
Channels.
5.5 Performance Evaluation
(A) Evaluation sessions may be held by the City during the term of this Agreement
within thirty (30) days of the City's written request to Grantee, but no more often than annually.
(B) All evaluation sessions shall be open to the public and announced at least one
week in advance in a newspaper of general circulation in the Franchise Area.
(C) Topics that maybe discussed at any evaluation session may include, but aze not
limited to, Cable Service rates, liquidated damages, free or discounted Cable Services,
application of new technologies, System performance, Cable Services provided, programming
offered, Customer complaints, privacy, amendments to this Agreement, judicial and FCC rulings,
line extension policies, and the City's or Grantee's rules; provided that nothing in this subsection
shall be construed as requiring the renegotiation of this Agreement or any provision hereof.
SECTION 6. FINANCIAL AND INSURANCE REQUIREMENTS
6.1 Indemnification
(A) General Indemnification. Grantee shall indemnify, defend and hold the City, its
elected officials, officers, Councils, commissions, agents and employees, harmless from any
action or claim for injury, damage, loss, liability, cost or expense, including court and appeal
costs and attorneys' fees and expenses, azising from any casualty or accident to Person or
property, including, without limitation, 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, its agents or its employees. The City's fees and expenses
shall include the reasonable value of any services rendered by the City Attorney's office or any
other employees of the City or its agents. Grantee shall consult and cooperate with the City
while conducting its defense of the City.
11
(B) 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 subsection.
(C) Duty to Give Notice and Tender Defense. The City shall give the Grantee timely
written notice of any claim or the commencement of any action, suit or other proceeding covered
by the indemnity in this Agreement. In the event any such claim arises, the City or other
indemnified parry shall tender the defense thereof to the Grantee and the Grantee shall have the
obligation and duty to defend, settle or compromise any claims arising thereunder, and the City
shall cooperate fully therein; provided, however, no settlement shall be made on behalf of the
City without the City's written consent.
(D) Seuazate Representation. If sepazate representation to fully protect the interests of
both parties is necessary, such as a conflict of interest between the City and the counsel selected
by Grantee to represent the City, another attorney shall be selected.
6.2 Insurance Requirements
(A) General Requirement. Grantee shall at its own expense purchase and maintain
the insurance required herein with companies duly licensed to do business in the State of
Colorado, possessing a current A.M. Best, Inc. Rating of "A--" or better.
(B) Minimum Insurance Limits. Grantee must maintain during the Agreement and for
a period of twelve (12) months after expiration, termination or nonrenewal thereof, insurance in
effect in accordance with the minimum insurance limits herein set forth by the City. The
Grantee shall provide a certificate of insurance for the following minimum insurance limits:
(1) Commercial General Liability: Three million dollars ($3,000,000)
aggregate limit per occurrence for bodily injury, personal injury and property damage and three
million dollazs ($3,000,000) products and completed operations.
(2) Automobile Liability: One million dollars ($1,000,000) combined single
limit per accident for bodily injury and property damage.
(3) Employer's Liability: Five hundred thousand dollazs ($500,000).
(4) Workers Compensation Insurance in accordance with State law
requirements.
(5) Umbrella or Excess Liability Insurance: Five million dollazs
($5,000,000).
Grantee shall be responsible for judgments, settlements, damages, costs,
attorneys' fees and expenses that exceed the limits of Grantee's insurance coverage.
(C) Endorsements.
12
(1) All policies shall contain, or shall be endorsed so that:
(a) The City shall be designated as an additional insured.
(b) The Grantee's insurance coverage shall be primary insurance with
respect to the City, its elected officials, officers, Councils, commissions, agents and employees.
Any insurance or self-insurance maintained by the City, its elected officials, officers, Councils,
commissions, agents and employees shall be in excess of the Grantee's insurance and shall not
contribute to it.
(c) Grantee's insurance shall apply sepazately to each insured against
whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's
liability.
(2) The insurance shall not be cancelled or materially altered so as to be out of
compliance with the requirements of this subsection without thirty (30) days written notice first
being given to the City. If the insurance is cancelled or materially altered so as to be out of
compliance with the requirements of this subsection, Grantee shall provide a replacement policy.
Grantee agrees to maintain continuous uninterrupted insurance coverage, in the amounts
required, for the duration of this Agreement and thereafter as applicable.
(D) Verif cation of Coveraee. The Grantee shall furnish the City with certificates of
insurance naming City as an additional insured. The certificates for each insurance policy aze to
be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates
for each insurance policy are to be on standazd forms or such forms as aze consistent with
standard industry practices, and aze to be received by the City within thirty (30) days of
acceptance of this Agreement by Grantee. The Grantee hereby warrants that its insurance
policies satisfy the requirements of this Agreement.
6.3 Self-Insured Retentions
If Grantee changes its policy to include aself-insured retention, the Grantee shall give written
notice of such change to the City. The City's approval will be given if the self-insured retention
is consistent with standard industry practices. Any self-insured retention of the policies shall not
in any way limit Grantee's liability to the City.
6.4 Bond
(A) Grantee shall provide a Performance Bond in the amount of Ten thousand dollars
($10,000) to ensure the faithful performance of its responsibilities under this Agreement and
applicable law including, by way of example and not limitation, its obligation to relocate and
remove its facilities and to restore City Rights-of--Way and other property. Grantee may be
required to obtain additional bonds in accordance with the City's ordinary practices. The bond
shall be in a form reasonably acceptable to the City Attorney. Grantee shall pay all premiums or
costs associated with maintaining the bond, and shall keep the same in full force and effect at all
times.
13
(B) The bond shall not be cancelled or materially altered so as to be out of compliance
with the requirements of this subsection without thirty (30) days written notice first being given
to the City. If the bond is cancelled or materially altered so as to be out of compliance with the
requirements of this subsection, Grantee shall provide a replacement bond. Grantee agrees to
maintain a continuous uninterrupted bond in the amounts required for the duration of this
Agreement or thereafter as specified in this Agreement.
SECTION 7. CUSTOMER SERVICE
7.1 Customer Service Standards
Customer Service Standazds maybe adopted sepazately by ordinance or resolution by the City.
In any event, Grantee shall comply with the customer service standards as outlined by federal law
(namely 47 CFR Section 76.309) and as those may be amended from time to time. The City agrees
to provide written notice to Grantee if it intends to enact customer service standards more stringent
than those contained in 47 CFR Section 76.309.
To the extent Grantee makes auailable a payment center so that Customers may have an opportunity
to pick up and return equipment, pay bills and ask questions of representatives of Grantee, if
Grantee elects to close such payment center, it shall provide thirty (30) days advance nofice of such
closure to the City.
7.2 Subscriber Privacy
Grantee shall comply with privacy rights of Subscribers in accordance with applicable federal
and State laws.
SECTION 8. REPORTS AND RECORDS
8.1 Open Records
The City shall have access to, and the right to inspect, any books and records of Grantee and its
Affiliates that aze reasonably related to the enforcement of the provisions of this Agreement.
Such review shall be at the Grantee's business office during normal business hours and on a non-
disruptive basis. Such notice shall specifically reference the Section or subsection of the
Agreement that is under review so that the Grantee may organize the necessary books and
records for easy access by the City. Grantee shall not deny the City access to any of Grantee's
records on the basis that Grantee's records are under the control of any Affiliate. The City may,
in writing, request copies of any such records or books, and Grantee shall provide such copies
within thirty (30) days of the receipt of such request except for those documents deemed
proprietary and confidential. One copy of all reports and records required under this or any other
subsection shall be furnished to the City at the sole expense of Grantee. If the requested books
and records aze too voluminous, or for security reasons cannot be copied or removed, then
Grantee may request, in writing within thirty (30) days of receipt of such request, that the City
inspect them at Grantee's office. If any books or records of Grantee are not kept in a local office
and not made available in copies to the City upon written request as set forth above, and if the
City determines that an examination of such records is necessary for the enforcement of this
14
Agreement, then all reasonable City travel expenses incurred in making such examination shall
be paid by Grantee.
8.2 Confidentiality
(A) Notwithstanding anything to the contrary set forth in this Agreement, the Grantee
shall not be required to disclose information which it reasonably deems to be proprietary or
confidential in nature. Grantee shall not be required to provide Customer information in
violation of Section 631 of the Cable Act or any other applicable federal or State privacy law.
For purposes of this subsection, the terms "proprietary or confidential" include, but aze not
limited to, information relafing to the Cable System design, Customer lists, mazketing plans or
fmancial information unrelated to the calculation of franchise fees. Grantee may make
proprietayy or confidential information available for inspection but not copying or removal by
the City's representative.
(B) Grantee shall be responsible for cleazly and conspicuously identifying the books,
records and maps which aze confidential or proprietary, and shall provide a brief written
explanation as to why such information is confidential and how it may be treated as such under
State or federal law. If the City receives a demand from any Person for disclosure of any
information designated by Grantee as confidential, the City 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, but before the proposed
release. Unless otherwise ordered by a court or agency of competent jurisdiction, the City agrees
that, to the extent permitted by State or federal law, it shall deny access to any of Grantee's
books or records marked confidential or proprietary as set forth above.
8.3 Records Required
Grantee shall provide to the City upon written request:
(A) A full and complete set of "route" maps, showing the general location of all
System equipment installed or in use in the Rights-of--Way, that aze generated in Grantee's
normal course of business;
(B) A copy of all FCC filings on behalf of Grantee that relate to the operation of the
System in the Franchise Area; and
(C) A list of Grantee's Cable Services, rates and Channel line-up.
8.4 Copies of Federal and State Reports
Upon reasonable written request, Grantee shall submit to the City copies of any pleading,
applications, notifications, communications and documents of any kind submitted by Grantee or
its AfFiliates to any federal, State or local courts, regulatory agencies and other government
bodies if such documents directly relate to the operation of Grantee's System within the
Franchise Area. Grantee shall submit such documents to the City no later than thirty (30) days
after receipt of the City's request.
15
8.5 Complaint File and Reports
(A) Grantee shall keep an accurate and comprehensive compilation of any and all
Customer complaints escalated to the City and provided to Grantee, and Grantee's actions in
response to those complaints, in a manner consistent with the privacy rights of Subscribers.
Upon written request of at least thirty (30) days written notice, this file shall be made available to
the City during normal business hours.
(B) Also, upon written request, but no more often than once annually, Grantee shall
provide an executive summary report to the City within thirty (30) days of the City's written
request that shall include the following information:
(1) Nature and type of Customer complaints escalated to the City and
provided to Grantee;
(2) A summary of unplanned service interruptions or Cable System outages
lasting longer than four hours;
(3) Phone activity report of complaints escalated to the City and provided to
Grantee;
(4) Video Programming changes (additions/deletions);
(5) Such other information as reasonably requested by the City and related to
the enforcement of this Franchise.
8.6 False Statements
Any intentional false or misleading statement or representation in any report required by this
Agreement shall be a material breach of this Agreement and may subject Grantee to all remedies,
legal or equitable, that are available to the City under this Agreement or otherwise.
SECTION 9. PROGRAMMING
9.1 Broad Programming Categories
Grantee shall provide at least the following broad categories of programming to the extent such
categories are reasonably available: '
(A) Educational programming;
(B) News, weather and information;
(C) Sports;
(D) General entertainment including movies;
16
(E) Children, family oriented;
(F) Arts, culture and performing arts;
(G) Foreign Language programming;
(I~ Science/documentazy; and
(I) PEG Access programming.
9.2 Deletion of Broad Programming Categories
Grantee shall not delete or so limit as to effectively delete any broad category of programming
within its control without prior written notice to the City.
9.3 Obscenity
Grantee shall comply with applicable laws related to obscenity.
9.4 Parental Control Device
Upon request by any Subscriber, Grantee shall make available a pazental control or lockout
device, traps or filters to enable a Subscriber to prohibit viewing of a particulaz 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 upon request thereafter.
9.5 Complimentary Cable Service
(A) The Grantee shall provide without chazge within seven (7) days of a written
request, a Standazd Installation and one outlet of Basic Service and Expanded Basic Service (and
any necessary converter) to City buildings now existing or hereafter constructed within the
Franchise Area, provided that the buildings aze either owned or leased and occupied by the City,
fire station(s), police station(s), libraries or School(s), or the City's Designated Access Provider
and provided further that they aze already served by the Grantee's Cable System or are within
one hundred twenty five (125) aerial feet or sixty (60) underground feet (a "Standazd
Installation") of its Cable System. A Standazd Installation does not include exceptional
circumstances such as those involving railroad crossings or going under rivers.
(B) The Cable Service provided shall only be used for lawful purposes, shall not be
used for commercial purposes or to entertain public or private groups and shall not be located in
public areas (except for those outside of the City Council's Meeting Room and displaying
content related to the City Council meetings). Complimentary cable services shall not be used in
azeas where the City would normally enter into a commercial contract, by way of example and
not limited to: recreation center work out facilities and community housing. The City shall take
reasonable precautions to prevent any use of the Grantee's Cable System in any manner that
results in the inappropriate use thereof. Grantee shall have the right to discontinue
17
complimentary cable service hookups that do not comply with this Franchise provided that 30
days written notice is first given by Grantee to the City and if there is continued noncompliance
with Subsection 9.5(B), then Grantee may discontinue complimentary cable service hookups that
do not comply with this Franchise.
(C) Unless it cun•ently exists, the Grantee shall not be required to provide a free outlet
to the above buildings where anon-Standazd Installation is required, unless the City or building
owner/occupant agrees to pay the incremental cost of any necessary Cable System extension and
non-Standard Installation.
(D) If additional outlets of complimentary Cable Service aze provided to buildings
beyond those required herein, the building owner/occupant shall pay the usual installaton fees
and recurring chazges associated therewith. It is agreed, however, that for those existing
complimentary accounts as of the date hereof there shall not be any recurring chazges except for
the converter boxes used for Premium Services or any similaz additional services associated
therewith.
(E) The monetary value of complimentary Standard Installations, converters and
Cable Service provided by the Grantee pursuant to this subsection shall not be offset against any
franchise fees payable to the City.
9.6 Leased Access Channels
Grantee shall offer Leased Access Channel capacity on such terms and conditions and rates as
may be negotiated with each lessee subject to the requirements of Section 612 of the Cable Act
and the rules and regulations of the FCC.
9.7 Continuity of Service
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 satisfied. Grantee shall use its best efforts
to ensure that all of its Subscribers receive continuous, uninterrupted Cable Service.
SECTION 10. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
10.1 Access
(A) Grantee shall continue to make available and maintain throughout the term of this
Franchise, at no additional chazge, one (1) Access Channel that shall be shazed by the City
Aspen, the Town of Snowmass Village and Pitkin County and which is currently carried on the
Cable System. Additionally, Grantee shall continue to make available and maintain throughout
the term of this Franchise at no additional chazge, two (2) Access Channels that shall be shazed
by the City Aspen, the Town of Snowmass Village and Pitkin County and which aze currently
carved on the Cable System.
(B) In the event Grantee makes any change in signal delivery technology which
directly affects the signal quality or transmission of any Access Channel programming or
18
services, the Grantee shall, at its own expense, take necessazy technical steps, acquire new
equipment and, in addition, provide the necessazy assistance so that the Access facilities and
equipment maybe used as intended by the Access providers, including, among other things, so
that live and taped programming can be cablecast with as good or better signal quality than
existed prior to such change.
(C) Notwithstanding anything to the contrary in this Franchise and irrespective of
whether there is effective competition from DBS (satellite) the Public, Educational and
Governmental Access Channels shall be carried on the Basic Tier and there shall not be any
initial or recurring chazges in connection with them or converter boxes or equipment necessary to
view them, unless applicable law otherwise allows.
10.2 Triggers for an Additional Access Channel
The City may require Grantee to make available no more than one (1) additional activated
downstream Access Channel when all (excluding the Channel that carries airport programming)
of the existing Access Channels required by Subsection 10.1 aze used for locally scheduled
programming (but excluding chazacter generated and filler programming, e.g., video bulletin
boazd, NASA, AM/FM Radio Programming), during fifty percent (50%) of the hours between
10:00 A.M. and 10:00 P.M., Monday through Friday during any consecutive ten (10) week
period. It is understood and agreed that as between Aspen, Pitkin County and the Town of
Snowmass Village, there may be only 1 additional activated downstream Access Channel during ~
this current Franchise term. Upon a showing that this threshold has been met, after a Public
Hearing and opportunity for citizen input, Grantee shall make available, within four (4) months
of the City's written request, one (1) additional Access Channel for Access progamming
purposes. Locally scheduled programming under this Subsection means only non-commercial,
not for profit, non-competitive, government, educational or public access programming that is
created or produced within Aspen, the Town of Snowmass Village or Pitkin County. Such
programming shall not be considered as counting towazd the calculation in this Subsection 10.2
after three (3) cablecasts (initial, first repeat and second repeat). The City acknowledges that
some other programming services may need to be moved or deleted to accommodate such
additional Access Channel.
10.3 Management and Control of Access Channels
The City may authorize Designated Access Providers to control, operate and manage the use of
any and all Access facilities including, without limitation, the programming of Access Channels.
The City or its designee may formulate rules for the operation of the Access Channels, consistent
with this Agreement. Nothing herein shall prohibit the City from authorizing itself to be a
Designated Access Provider or from assigning several Designated Access Providers with similaz
types of programming to share Access Channel space.
10.4 Access Channel Numbers
Grantee will use commercially reasonable efforts to minimize the movement of Access Channel
numbers. Grantee shall provide to the City a minimum of sixty (60) days notice prior to any
relocation of an Access Channel, unless the change is required by federal law or for a
19
demonstrable technical reason, in which case Grantee shall give the City at least thirty (30) days
written notice. In addition, Grantee shall provide the City with ninety (90) thirty second
promotional spots on the System during a thirty (30) day period prior to the date of the change in
the location of an Access Channel. The City or its designee shall have sole responsibility to
produce and deliver the spots to Grantee on a timely basis and in a cablecast-ready state. Such
spots shall promote the Access Channel and the Channel relocation only for the purpose of
notifying Subscribers of the change in Channel designation, and shall not include any mention of
any third party or other sponsors. Placement of the spots shall be based on available inventory.
All spots aze subject to Grantee's approval, such approval not to be unreasonably withheld or
delayed. If Designated Access Providers can demonstrate significant economic impact due to
rebranding, Grantee and City shall meet and attempt in good faith to address Grantee paying for
some of the rebranding costs.
10.5Access Capital Costs
(A) Within thirty (30) days of receiving written notice and after the Effective Date of
this Agreement, Grantee shall provide a one time contribution of $15,039 to the City (the
"Initial Capital Contribution") which the City and/or its Designated Access Providers (at City's
discretion) may use only for capital purposes (studios, facilities, equipment, equipment used for
video streaming government meetings, etc.) for PEG Access. Alternatively, the City may elect
- to defer receiving the Initial Capital Contribution. If it does make this election to defer, the City
shall notify Grantee in writing within (30) days of the Effective Date. If the City elects to
receive the Initial Capital Contribution at a later date, City shall have a public hearing. If the
City elects to receive the Initial Capital Contribution at a later date as provided herein, it shall so
notify Grantee in writing and Grantee shall thereafter have sixty (60) days to pay the Initial
Capital Contribution to the City. The City understands that, pursuant to federal law, Grantee
intends to collect the Initial Capital Contributions from Residential Subscribers as a sepazate line
item on Subscribers' bills in addition to the price for Cable Service.
(B) When the Initial Capital Contribution specified in subsection (A) is fully
recovered by Grantee, the Grantee shall provide to the City up to $0.50 per month per
Residential Subscriber for Access capital (payable quarterly as the "Quarterly Capital
Contribution"). Grantee shall not be responsible for paying the Quarterly Capital Contribution
with respect to gratis or Bad Debt accounts.
(C) Each Quarterly Capital Contribution payment shall be due and payable no later
than forty-five (45) days following the end of the quarter from when the Quarterly Capital
Contribution takes effect. The City shall have discretion to allocate the Initial Capital
Contribution and Quarterly Capital Contribution in accordance with applicable law, provided
that the City submits a summary of capital expenditures from the Initial Capital Contribution and
Quarterly Capital Contribution to Grantee within sixty (60) days of the end of each calendaz
year. The City may adjust the amount of the Quarterly Capital Contribution (not to exceed $.50
per Residential Subscriber per month) on an annual basis, or choose to waive collection of the
Quarterly Capital Contribution, provided that Grantee is given ninety (90) days advance written
notice.
20
(D) The City and Grantee agree that recovery of the Initial Capital Contribution and
subsequent Quarterly Capital Contributions shall be referred to on Subscribers' bills as a "PEG
Fee", or language substantially similar thereto.
(E) To the extent the City has made or makes Access capital investments using City
funds prior to receiving necessary Initial Capital Contribution and Quarterly Capital Contribution
funds, the City is entitled to apply the Initial Capital Contribution and Quarterly Capital
Contribution payments from Grantee towazd such City capital investments. It is further agreed
that the Initial Capital Contribution and Quarterly Capital Contributions must be applied toward
or used for Access Programming equipment and facilities in the City, Pitkin County or the Town
of Snowmass Village.
(F) The Initial Capital Contribution and Quarterly Capital Contribution payments are
not an advance against any franchise fee payment, and there shall not be any offset or credit
against any franchise fee payment.
(G) Grantee agrees that at the end of the initial seven (7) yeaz term and if the
Agreement is extended for an additional seven (7) years, Grantee shall provide an additional
capital contribution matching the Initial Capita] Contribution and will continue collecting and
remitting the Quarterly Capital Contribution to the City so long as the City elects to receive
same. Grantee shall recoup the additional initial capital contribution and Quarterly Capital
Contributions under the same recovery terms and conditions as the Initial Capital Contribution
and Quarterly Capital Contributions as set forth above.
10.6 Technical Quality
The Grantee shall maintain all Access Channels consistent with the quality of Grantee's other
Channels on the same tier of service. The Grantee shall provide routine maintenance and repair
and replace, if necessary, any of Grantee's equipment required to carry a quality signal from the
Access facilities to Subscribers. Should the City or its Designated Access Provider elect to
upgrade any of the equipment at its facilities, the City or its Designated Access Provider shall be
responsible for upgrading the equipment at its costs.
10.7 Return Lines
Grantee shall, at its expense, maintain the existing operating return lines sufficient to enable
character generated, prerecorded and live cablecasts from Aspen City Hall located at 130 South
Galena, Aspen, CO 81611; Pitkin County Airport, located at 233 East Airport Road, Suite A,
Aspen, CO 81612, Colorado Mountain College, RAFTA and the GrassRoots TV studio located
at 110 East Hallam Street in Aspen to the Headend to enable the distribution of Access
programming to Subscribers. Grantee shall not be required to maintain return lines to the
GrassRoots TV studio if the City ceases to use Grass Roots as a Designated Access Provider.
Upon written request of the City, Grantee shall construct and maintain additional fiber optic
return lines, at City's expense, from other locations within the Franchise Area which deliver
Access programming to Subscribers.
21
SECTION 11. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
11.1 Construction
(A) Subject to applicable laws and this Agreement, Grantee shall perform all
maintenance, construction, repair and upgrades necessary for the operation of its System in the
Rights-of--Way. All work regazding Grantee's System shall, regardless of who performs the
work, be and remain Grantee's responsibility. Grantee shall apply for, and obtain, all permits
necessary for construction or installation of any facilities and for excavating and laying any
facilities within the Rights-of--Way. Grantee shall pay all applicable fees upon issuance of the
requisite permits by the City to Grantee.
(B) As a condition of any permit so issued, the City may impose such 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, protection of the public and the
continuity of pedestrian or vehiculaz traffic.
(C) In the event that emergency repairs aze necessary, Grantee shall immediately
notify the City of the need for such repairs. Grantee may initiate such emergency repairs and
shall apply for appropriate permits within forty-eight (48) hours after discovery of the
emergency, or as soon as reasonably practical.
11.2 One Call Notification
Prior to doing any work in the Rights-of--Way, Grantee shall follow established procedures,
including contacting the Utility Notification Center of Colorado and comply with all applicable
State statutes. Grantee shall also comply with generally applicable ordinances and permitting
requirements before digging in the Rights-of--Way.
11.3 Restoration of Rights-of--Way
(A) Whenever Grantee disturbs the surface of any Rights-of--Way for any purpose,
Grantee shall promptly restore the Rights-of--Way to a condition reasonably compazable to the
condition of the Rights-of--Way immediately prior to such disturbance, normal weaz and teaz
excepted. When any opening is made by Grantee in a hard surface pavement in any Rights-of-
Way, Grantee shall promptly refill the opening and restore the surface as required by its permit.
(B) If the Grantee fails to promptly restore the Rights-of--Way, the City may, after
providing reasonable notice to Grantee, refill or repave any opening made by Grantee in the
Rights-of--Way, and the reasonable expense thereof shall be paid by Grantee. The City may,
after providing reasonable notice to Grantee, repair any work done by Grantee that, in the
determination of the City, does not conform to applicable City specifications. The reasonable
cost thereof, including the costs of inspection and supervision, shall be paid by Grantee. All
excavations made by Grantee in Rights-of--Way shall be properly safeguazded for the prevention
of accidents. All of Grantee's work under this Agreement shall be done in compliance with all
rules, regulations and generally applicable ordinances of the City.
22
11.4 Maintenance
(A) Grantee's System shall be constructed and maintained in such a manner as not to
interfere with sewers, water pipes or any other property of the City, or with any other pipes,
wires, conduits, pedestals, structures or other facilities that may have been laid in Rights-of--Way
by, or under, the City's authority.
(B) Grantee shall provide and use any equipment necessary to control and carry
Grantee's signals so as to prevent damage to the City's property or property belonging to any
Person. Grantee, at its own expense, shall repair, renew, change and improve its facilities and
equipment to keep them in good repair and a 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 unnecessazily hinder or obstruct the free use ofRights-of--Way or other public
property.
(D) Grantee shall give reasonable notice to private property owners of construction
work in adjacent Rights-of--Way.
11.5 Reservation of Rights-of-Way
Nothing in this Agreement shall prevent the City or public utilities from constructing any 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.
(A) Movement of System For and By the Citv. The City 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 other property of the City in the event of an
emergency or when necessary to protect or further the health, safety or welfaze of the general
public, and such work shall be performed at Grantee's expense consistent with applicable law.
In conjunction with the foregoing, Grantee shall be treated in a similaz manner with respect to
other providers with overhead utilities. Except during an emergency, the City shall provide
reasonable notice to Grantee, not to be less than ten (10) business days, and allow Grantee the
opportunity to perform such work.
If the Grantee fails to complete this work within the time prescribed and to the
City's reasonable satisfaction, the City may cause such work to be done and bill the cost of the
work to the Grantee. Grantee shall remit payment to the City within thirty (30) days of receipt of
an itemized list of those costs.
If the City requires Grantee to relocate its facilities located within the Rights-of-
Way, the City shall make a reasonable effort to provide Grantee with an alternate location in the
Rights-of--Way.
(B) Movement for Other Permittees. At the request of any Person holding a valid
permit and upon reasonable advance notice, Grantee shall temporarily raise, lower or remove its
23
wires as necessary to allow the moving of a building, vehicle, equipment or other item. The cost
of such temporary change must be paid by the permit holder, and Grantee may require the
estimated payment in advance.
11.6 Rights-of--Way Vacation
If any Rights-of--Way or portion thereof used by Grantee is vacated by the City during the term
of this Agreement, unless the City specifically reserves to Grantee the right to continue the use of
vacated Rights-of--Way, Grantee shall, without delay or expense to the City, remove its facilities
from such Rights-of--Way and restore, repair or reconstruct the Rights-of--Way where such
removal has occurred. In the event of failure, neglect or refusal of Grantee to restore, repair or
reconstruct such Rights-of--Way after thirty (30) days written notice from the City, the City may
do such work or cause it to be done, and the reasonable cost thereof shall be paid by Grantee
within thirty (30) days of receipt of an invoice and documentation.
11.7 Undergrounding of Cable
(A) Where electric and telephone utility wiring or other underground wiring is
installed at the time of System construction or when such overhead wiring is subsequently placed
underground, all System lines, wiring and equipment shall also be placed underground by
Grantee concurrently or within a reasonable time thereafter at no expense to the City, subject to
applicable law including, but not limited to CRS 29-8-101 et seq. In areas where either electric
or telephone utility wiring is aerial, the Grantee may install aerial cable, except when a property
owner or resident requests underground installation and agrees to bear the additional cost in
excess of aerial installation. If funds exist, aze set aside for such purpose, or provided by a third
party, Grantee shall be entitled to seek reimbursement for its shaze of funds to offset the cost of
placing its facilities underground. Nothing contained in this subsection shall require Grantee to
construct, operate and maintain underground any ground-mounted appurtenances including, but
not limited to, pedestals.
(B) The Grantee shall utilize existing conduit wherever possible.
(C) The City shall not be required to obtain easements for the Grantee.
(D) The Grantee shall participate with other providers in joint trench projects to
relocate its overhead facilities underground and remove its overhead facilities in areas where
utilities are being converted to underground facilities.
11.8 Construction and Use of Poles
Grantee shall use existing poles when the installation of facilities above-ground is permitted. In
the event Grantee cannot obtain the necessary poles pursuant to a pole attachment agreement,
and only in such event, then, subject to the City's prior written consent, it shall be lawful for
Grantee to make all needed excavations in the streets for the purpose of placing, erecting,
maintaining, repairing and removing poles needed for the maintenance or extension of Grantee's
System. The City shall have the right to require Grantee to change the location of any pole
24
within Rights-of--Way when, in the opinion of the City, the public health, safety or welfaze
requires such change, and the expense thereof shall be paid by Grantee.
11.9 Tower Specifications
Antenna supporting structures ("towers") shall be designed for proper loading as those industry
specifications maybe amended from time to time. Antenna supporting structures 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 or local codes or
regulations.
11.10 Tree Trimming
Upon obtaining a written permit from the City, Grantee may prune or cause to be pruned any tree
or other natural growth in the Rights-of--Way that interferes with the System.
11.11 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 deploy all necessary devices as required
by applicable law during construction, operation and repair of its System. By way of illustration
and not limitation, 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, lines and facilities shall be 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.
(D) 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 boazding, the bounds of which, during periods of dusk
and darkness, shall be clearly marked and visible at night.
(E) Grantee and the City agree that nothing in this Agreement shall give Grantee the
right to construct new poles without prior City approval. Furthermore, nothing contained in this
Agreement gives Grantee a right of pole attachment to City facilities or facilities owned by third
parties.
11.12 Stop Work
On notice from the City that any work is being conducted contrary to the provisions of this
Agreement, or in an unsafe or dangerous manner as determined by the City, or in violation of the
25
terms of any applicable permit, laws, regulations, ordinances or standazds, the work may
immediately be stopped by the City. The stop work order shall:
(A) Be in writing;
(B) Be sent to Grantee by mail at the address given herein;
(C) Indicate the nature of the alleged violation or unsafe condition; and
(D) Establish conditions under which work may be resumed.
11.13 Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be licensed and bonded in accordance with local
ordinances, regulations and requirements. Work by contractors and subcontractors shall be
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, 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 caused by them. It is Grantee's responsibility to ensure that
contractors, subcontractors or other Persons performing work on Grantee's behalf aze familiaz
with the requirements of this Agreement and other applicable laws governing the work
performed by them.
11.14 Joint Trenching/Boring
To the extent it is technically and economically feasible, Grantee shall joint trench or shaze bores
or cuts and work with other providers (such as, but not limited to, telecommunications, gas and
electric companies), licensees, pennittees and franchisees so as to reduce the number of Right-
of-Way cuts within the City.
11.15 GIS Mapping and As-Built Maps
Upon thirty (30) days written request of the City, Grantee shall within a reasonable timeframe
comply with any generally applicable ordinances, rules and regulations of the City regazding
geographic information systems mapping for users of the Rights-of--Way.
11.16 Notice to Property Owners
Except for emergency situations, Grantee shall provide at least two (2) days prior written notice
to property owners before commencing work on public or private property. Grantee may
provide such notice by door hangers or other reasonable means.
26
SECTION 12. SYSTEM DESIGN
(A) The Cable System has been previously upgraded and is capable of 750 MHz and is
capable of delivering high quality signals that meet FCC technical quality standazds regazdless of
a particular manner in which the signal is transmitted. Grantee agrees to maintain the Cable
System in a manner consistent with, or in excess of, these specifications throughout the
Agreement.
(B) The Cable System shall be two-way capable, provided that the Grantee reserves
the right to use the bandwidth in the future for other uses based on market factors.
(C) Equipment must be installed so that all closed captioned programming received
and transmitted by the Cable System shall include the closed caption signal so long as the closed
caption signal is provided consistent with FCC standazds.
(D) Grantee acknowledges that the minimum Cable System design and performance
requirements set forth in this Agreement are enforceable, to the extent allowed by law.
SECTION 13. TECHNICAL STANDARDS
13.1 Technical Performance
The technical performance of the Cable System shall meet all applicable technical standazds
authorized or required by law including, without limitation, FCC technical standazds as they may
be amended from time to time, regazdless of the transmission technology utilized. The City shall
have the full authority permitted by applicable law to enforce compliance with these technical
standazds.
13.2 Inspection of Facilities
The City 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 an emergency, upon demand without prior notice. Where
inspection is warranted, the City shall have the right to chazge generally applicable inspection
fees therefore. If an unsafe condition is found to exist, the City, in addition to taking any other
action permitted under applicable law, may order Grantee to make the necessary repairs and
alterations specified therein and correct the unsafe condition within the time specified by the
City. The City has the right to correct, inspect, administer and repair the unsafe condition if
Grantee fails to do so within the time specified and to charge Grantee the cost therefore. In such
event, the City shall not be liable for any damage to any portion of Grantee's Cable System.
13.3 Cable System Performance Testing
(A) Grantee shall, at its expense, perform all tests on its Cable System required by law
and maintain written records of its test results. Upon advance request, all required technical
performance tests may be witnessed by representatives of the City. Copies of such test results
will be provided to the City upon written request.
27
(B) Grantee shall promptly take such steps and measures as aze necessary to correct
any performance deficiencies fully and to prevent their recurrence. Grantee's failure to correct
deficiencies identified through this testing process shall be a material violation of this
Agreement. Sites shall be re-tested following correction until satisfactory results are obtained.
13.4 Additional Tests
(A) Where there exists a demonstrable ongoing pattern of poor technical performance,
then upon thirty (30) days prior written notice, the City may require Grantee to conduct proof-of-
performance tests on test points located within the Franchise Area and provide results of such
tests within thirty (30) days after completion thereof.
(B) Grantee shall cooperate with the City in performing the testing described in
subsection (A) and shall prepare the results and a report. Such report shall include the following
information:
(1) the nature of the complaint or problem that precipitated the special tests;
(2) the Cable System component tested;
(3) the equipment used and procedures employed in testing;
(4) the method, if any, in which such complaint or problem was resolved; and
(5) any other information pertinent to said tests and analysis that may be
reasonably required.
SECTION 14. SERVICE EXTENSION
14.1 Service Availability
(A) Grantee shall provide a standard installation of Cable Service within seven (7)
days of a request by any Person within its Franchise Area. For purposes of this Section, a
request shall be deemed made on the date of signing a service agreement, receipt of funds by
Grantee (if applicable), receipt of a written request by Grantee or receipt by Grantee of a verified
verbal request. Grantee shall provide Cable Service:
(1) with no line extension chazge except as specifically authorized elsewhere
in this Agreement;
(2) at anon-discriminatory installation chazge for a Standazd Installation,
consisting of a one hundred twenty-five (125) foot aerial drop or sixty (60) feet for an
underground drop connecting to the exterior demazcation point for Subscribers, with additional
chazges for non-standazd installations computed according to anon-discriminatory methodology;
and
28
(3) at non-discriminatory monthly rates for all Residential Subscribers.
(B) No Customer shall be refused service arbitrarily. However, for unusual
circumstances, such as a Customer's request to locate the cable drop underground with a distance
of more than sixty (60) feet or the existence of more than one hundred twenty-five (125) aerial
feet of distance from the distribution cable to connection of service to Customers, or a density of
less than twenty-five (25) residences per 5280 cable-bearing strand feet of trunk or distribution
cable, service maybe made available on the basis of a capital contribution in aid of construction,
including cost of material, labor and easements. Customers who request service hereunder will
beaz 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.
(C) Grantee shall, subject to the line extension distance criteria set forth above and
upon request (but subject to Grantee recouping a reasonable amount of its construction costs)
make Cable Service available to all commercial establishments located within the City at the
expense of such commercial establishments.
14.2 Service to Multiple Dwelling Units
The Grantee shall provide Cable Service to multiple dwelling units in accordance with an
agreement with the property owner, this Agreement and all applicable laws. Additionally,
Grantee shall use best efforts to provide Cable Service to Customers in the Franchise Area that
aze billed on a bulk billing basis.
SECTION 15. STANDBY POWER AND EMERGENCY ALERT SYSTEM
15.1 Standby Power
Grantee shall provide standby power generating capacity at the System Headend capable of
providing at least twenty-four (24) hours of emergency operation. Grantee shall maintain
standby power supplies throughout the System rated for at least four (4) hours duration.
15.2 Emergency Alert Capability
(A) Grantee shall provide an Emergency Alert System ("EAS") in accordance with
and as required by applicable laws and regulations.
(B) Grantee shall ensure that the EAS is functioning properly at all times. It will test
the EAS periodically, in accordance with federal and State regulations. Upon request, Grantee
will advise the City of the testing schedule so that the City maybe present for the tests.
29
SECTION 16. BREACHES OF AGREEMENT
16.1 Procedure for Remedying Agreement Violations
(A) If the City believes that Grantee has failed to perform any material obligation
under this Agreement or has failed to perform in a timely manner, the City shall first informally
discuss the matter with Grantee. If this discussion does not lead to resolution of the problem, the
City shall notify Grantee in writing, stating with reasonable specificity the nature of the alleged
default. Grantee shall have thirty (30) days from the receipt of such notice to:
occurred;
(1) respond to the City, contesting the City's assertion that a default has
(2) cure the default; or
(3) notify the City that Grantee cannot cure the default within 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 City in
writing and in detail as to the exact steps that will be taken and the projected completion date.
Upon ten (10) business days prior written notice, either the City or Grantee may call a meeting to
discuss the alleged default. In such case, if matters aze not resolved at such meeting, the City
may set a hearing in accordance with subsection (B) below to determine whether additional time
beyond the thirty (30) days specified above is indeed needed, and whether Grantee's proposed
completion schedule and steps aze 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, or the City
orders a hearing in accordance with subsection (A)(3), the City shall set a public hearing to
investigate said issues or the existence of the alleged default. The City shall notify Grantee of
the hearing in writing, and such hearing shall take place no less than thirty (30) days after
Grantee's receipt of notice of the hearing, which notice shall specify the time, place and purpose
of such hearing. At the hearing, Grantee shall be provided an opportunity to be heazd, to present
and question witnesses and to present evidence in its defense. The determination as to whether a
default or a material breach of this Agreement has occurred shall be within the City's sole
discretion, but any such detemunation shall be subject to appeal to a court of competent
jurisdiction.
(C) If, after the public hearing, the City determines that a default still exists, the City
shall order Grantee to correct or remedy the default or breach within ten (10) days of City
notification or within such other timeframe as the City shall determine. The City's decision shall
be provided to the Grantee in writing, setting forth the reasons supporting the City's actions. In
the event Grantee does not cure within such time to the City's reasonable satisfaction, the City
may:
(1) take steps to collect on the Performance Bond;
(2) assess and collect monetary damages in accordance with this Agreement;
30
(3) commence revocation procedures consistent with subsection 16.4 herein;
or
(4) pursue any other legal or equitable remedy available under this Agreement
or applicable law.
16.2 Alternative Remedies and Immunity
(A) 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 City to recover
monetary damages, as allowed under applicable law, or to seek and obtain judicial enforcement
of Grantee's obligations by means of specific performance, injunctive relief or mandate.
(B) The City specifically does not, by any provision of this Agreement, waive any
right, immunity, limitation or protection otherwise available to the City, its elected officials,
officers, Councils, commissions, agents or employees under federal, State, or local law
including, by way of example, Section 635A of the Cable Act.
16.3 Assessment of Liquidated Damages
(A) Because it may be difficult to calculate the harm to the City in the event of a breach
of this Agreement by Grantee, the parties agree to liquidated damages as a reasonable estimation of
the actual damages in certain instances. Nothing in this subsection is intended to preclude the City
from exercising any other right or remedy in accordance with applicable law.
(B) Prior to assessing any liquidated damages, the City shall give Grantee written
notice and a thirty (30) day right to cure.
(C) The first day for which liquidated damages may be assessed, if there has been no
cure after the end of the applicable cure period, shall be the day of the violation.
(D) Liquidated damages shall be as follows:
(1) One hundred dollars ($100.00) per day for material departure from the FCC
technical performance standazds;
(2) One hundred dollazs ($100.00) per day for failure to provide the Access
Channels or any equipment related thereto or funding which is required;
(3) One hundred dollars ($100.00) per day for failure to comply with any other
material requirement of this Agreement;
Liquidated Damages may not be assessed for more than one hundred twenty (120) days.
31
16.4 Material Violations
(A) In addifion to pursuing any other legal or equitable remedy available under this
Agreement or applicable law, the City may revoke this Agreement and rescind all rights and
privileges associated with this Agreement in any of the following circumstances:
(1) If Grantee fails to perform any material obligation under this Agreement;
(2) If Grantee willfully fails for more than three (3) days to provide wntinuous
and uninterrupted Cable Service except for Force Majeure;
(3) If Grantee attempts to evade any material provision of this Agreement or to
practice any fraud or deceit upon the City or Subscribers; or
(4) If Grantee fails to provide the insurance, performance bond or other security
required by this Agreement.
(B) Prior to pursuing legal or equitable remedies and forfeiture or termination of the
Agreement, the City shall give written notice to the Grantee. The notice shall set forth the exact
nature of the noncompliance. Grantee shall have thirty (30) days from such notice to object in
writing and to state its reasons for such objection and provide any explanafion. In the event the City
has not received a timely and satisfactory response from Grantee, it may then seek legal and
equitable remedies and a ternnation of the Agreement in accordance with this subsection.
(C) The City shall conduct a public hearing.
(1) At least thirty (30) days prior to the public hearing, the City Clerk shall issue
a public hearing notice that shall establish the issue(s) to be addressed in the public hearing; provide
the time, date and location of the hearing; provide that the Council shall hear any persons interested
therein; and provide that the Grantee shall be afforded fair opportunity for full participation,
including the right to introduce evidence, to require the production of evidence, to be represented by
counsel and to question witnesses.
(2) A verbatim transcript may be made by a court reporter of such proceeding
and the cost shall be paid by Grantee and City on a 50/50 basis.
(3) Within thirty (30) days after the close of the hearing, the City Council shall
issue a written decision.
(D) Grantee shall be bound by the City Council's decision unless an appeal to a court of
competent jurisdiction is filed within thirty (30) days of the date of the City Council's decision.
Grantee and the City shall be entitled to such relief as the court may deem appropriate.
16.5 Purchase or Removal
(A) If this Agreement is lawfully terminated or revoked, the City may, subject to
applicable law:
32
(1) Require Grantee to maintain and operate its Cable System on a month-to-
month basis until anew cable operator is selected; or
(2) Purchase Grantee's Cable System in accordance with federal law.
(B) The City may order the removal of the above-ground Cable System facilities and
such underground facilities from the Franchise Area at Grantee's sole expense within a reasonable
period of time as determined by the City. 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 a condition as that prevailing prior to Grantee's
removal of its equipment and without affecting electrical or telephone wires or attachments. The
indemnification, insurance and bond(s) shall remain in full force and effect during the period of
removal, and Grantee shall not be entitled to, and agrees not to request, compensation of any sort
therefor.
(C) If Grantee fails to complete any removal required by subsection 16.5 (B) to the
City's satisfaction, after written notice to Grantee, the City may cause the work to be done and
Grantee shall reimburse the City for the costs and expenses incurred within thirty (30) days after
receipt of an itemized list of the costs and expenses, or the City may recover the costs and expenses
through the Grantee's security instnunents if Grantee has not paid such amount within the foregoing
thirty (30) day time period. Any costs and expenses incurred by the City regazding such removal
shall include reasonable attorneys' fees and costs and expenses for work conducted by the City staff
or its agents.
SECTION 17. ABANDONMENT
If the Grantee abandons its Cable System during the Agreement, the City, at its option, may operate
the Cable System; designate another entity to operate the Cable System temporarily until the
Grantee restores service under conditions acceptable to the City, or until the Agreement is revoked
and a new franchisee is selected by the City; or obtain an injunction requiring the Grantee to
continue operations. If the City is required to operate or designate another entity to operate the
Cable System, the Grantee shall reimburse the City or its designee for all reasonable costs, expenses
and damages incurred.
SECTION 18. RENEWAL AND TRANSFER
18.1 Renewal
The City and Grantee agree that any proceedings undertaken by the City that relate to the renewal of
the Agreement shall be governed by and comply with the provisions of Section 626 of the Cable
Act, unless the procedures or substantive protections set forth therein shall be deemed to be
preempted and superseded by the provisions of any subsequent provision of federal or State law.
33
15.2 Transfer
(A) This Agreement and the Cable System shall not be assigned, transferred, sold, or
disposed of, in whole or in part, by voluntary sale, sale and leaseback, merger, consolidation,
exchange of stock, by provision of a management agreement, or otherwise, or by forced or
involuntary sale, without the prior written consent of the City, which shall not be unreasonably
withheld, delayed or conditioned.
(B) Prior written approval of the City shall also be required where a controlling interest
in Grantee is to be acquired during this Agreement in any transaction, or series of transactions, by a
Person or group of Persons, none of whom owned or controlled Grantee, singulazly or collectively
on the effective date of the Agreement. The term "controlling interest" as used herein is not limited
to majority stock ownership but includes actual working control in whatever manner exercised.
(C) The approval of a sale, transfer or change in control in one instance shall not render
unnecessary approval of any subsequent sale, transfer or change in control.
(D) Approval of a sale, transfer or change in control by the City does not constitute a
waiver or release by the City of its rights under this Agreement or applicable law.
(E) A transfer of this Agreement shall be conducted in accordance with federal law and
the requirements set forth in this Agreement. The City may request any informafion it deems
reasonable to evaluate the financial, technical and legal qualifications of the proposed transferee or
new controlling party. Any unresolved Agreement compliance issues shall be resolved prior to
completing any transfer, assignment or change in control unless the transferee elects to assume
liabilities for such unresolved Agreement compliance issues. Grantee, the proposed transferee and
new controlling party shall provide the information requested by the City in a timely manner.
(F) The City's consent to a sale, transfer or change in control shall not be unreasonably
withheld, delayed or conditioned.
(G) Notwithstanding anything to the contrary in this subsection, the prior approval of the
City shall not be required for any sale, assignment or transfer of the Agreement or Cable System to
aninfra-company Affiliate; provided that the proposed assignee or transferee must show financial
responsibility as may be detemuned necessary by the City and must agree in writing to comply with
all of the provisions of the Agreement. Further, Grantee may pledge the assets of the Cable System
for the purpose of financing without the consent of the City; provided that such pledge of assets
shall not impair or mitigate Grantee's responsibilities and obligations under this Agreement.
SECTION 19. MISCELLANEOUS PROVISIONS
19.1 Equal Employment and Non-discrimination
Throughout the term of this Agreement, Grantee shall fully comply with all equal employment and
non-discrimination provisions and requirements of federal, State and local laws.
34
19.2 Notices
Throughout the term of this Agreement, each party shall maintain and file with the other an
address for the delivery of notices and communications by mail. All notices and
communications shall be sent to such respective address(es), and such shall be effective upon the
date of mailing. At the effective date of this Agreement:
The Grantee's address shall be:
Comcast of Colorado/Florida, Inc.
8000 East Iliff Avenue
Denver, CO 80231
Attn: Government Affairs
With a Copy to:
Comcast
281 Metcalf Road, Suite 110
Avon, CO 81620
Attn: General Manager
The City's address shall be:
The City of Aspen
130 South Galena
Aspen, CO 81611
Attention: City Attorney
19.3 Captions and Headings
The captions and headings of the sections and subsections set forth herein aze intended solely to
facilitate the reading hereof. Such captions and headings shall not affect the meaning or
interpretation of this Agreement.
19.4 Costs and Expenses to be Borne by Grantee
Costs and expenses to be borne by Grantee shall include all of the City's publication and hearing
costs related to this Agreement.
19.5 Attorneys' Fees
If any action or suit arises in connection with this Agreement, excluding subsequent franchise
renewal proceedings, the prevailing party shall be entitled to recover all of its reasonable attorneys'
fees, consultants' fees, costs and expenses in connection therewith, in addition to such other relief as
the court may deem proper.
35
19.6 Binding Effect
This Agreement shall be binding upon the parties hereto, their permitted successors and assigns.
19.7 Authority to Amend
This Agreement maybe amended at any time by written agreement between the parties.
19.8 Venue
Venue for any judicial dispute between the City and Grantee arising under or out of this Agreement
shall be in the United States District Court for the District of Colorado or Pitkin County District
Court in Aspen, Colorado.
19.9 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 which would indicate any such relationship with the other.
19.10 Non-Waiver
The failure of the City at any time to require performance by Grantee of any provision hereof shall
in no way affect the right of the City hereafter to enforce the same. The waiver by the City of any
breach of any provision hereof shall not 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.
19.11 Governing Law
This Agreement shall be governed, construed and enforced in accordance with the laws of the State
of Colorado, the Cable Act, any applicable rules, regulations and orders of the FCC, and any other
applicable local, State and federal laws (as such now exist, aze later amended or subsequently
adopted).
19.12 Actions of the City or Grantee
In any action by the City or Grantee mandated or pernutted under the provisions hereof, it shall act
in a reasonable, expeditious and timely manner. Furthermore, in any instance where approval or
consent is required under the terms hereof, such approval or consent shall not be unreasonably
withheld.
19.13 Force Majeure
Notwithstanding any other provision of this Agreement, the Grantee shall not be liable for delay in
the performance of, or failure to perform, in whole or in part, its obligations pursuant to this
Agreement due to an event or events reasonably beyond the ability of the Grantee to anticipate and
control. "Force majeure" includes, but is not limited to, acts of God, incidences of terrorism, waz or
36
riots, labor strikes or civil disturbances and work delays caused by waiting for utility providers to
provide access to utility poles to which Grantee's facilities are attached.
19.14 Severability
If any Section, subsection, pazagraph or provision of this Agreement is determined to be illegal,
invalid or unconstitutional by any court or agency of competent jurisdiction, such detemunation
shall have no effect on the validity of any other Section, subsection, paragraph or provision of this
Agreement, all of which will remain in full force and effect for the term of the Agreement.
19.15 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.
PASSED AND APPROVED THIS _ DAY OF , 2009.
THE CITY OF ASPEN, COLORADO
By _
Title
ATTEST:
City Clerk
Accepted and approved this day of , 2009.
COMCAST OF COLORADO/FLORIDA, INC.
By _
Title
ATTEST:
Secretazy
37