HomeMy WebLinkAboutORDINANCE 03-24ORDINANCE NO. 03-24
AN ORDINANCE APPROVING THE GRANT OFACABLE FRANCHISE TOTDS
BROADBAND SERVICE, LLC.AND APPROVING ACABLE FRANCHISE
AGREEMENT BETWEEN TDGBROADCAST SERVICE, LLC.AND THE TOWN OF
ESTESPARK, COLORADD
WHEREAS, pursuant tothe Municipal Code for the Town ofEstes Park (the
^Code").and the authority granted tostatutory tuwnnunderCo|o/ado|mm.1heTownof
Estes Park (the ^Tmwn^)may adopt and amend ordinances;
WHEREAS, the Town isauthorized generally pursuant toC,R.S§31'15-702.to
regulate and manage the use, maintenance, and repair of public streets, roads,
sidewalks, and public places under its jurisdiction;
WHEREAS, the Town previously granted onon-exclusive franchise for the
construction, maintenance, and operation of a cable television system within the Town
toBaja Broadband Operating Company, LLC;
WHEREAS, TDSBroadband Service ULC.known locally as TDS ("TDS") is the
successor ininterest toBaja Broadband Operating Company\
WHEREAS, TDS is agreeable to continue providing cable television service in
the Town;
WHEREAS, TDSseeks anew cable television franchise, and aproposed new
Cable Franchise Agreement acceptable toboth the Town and TO8has been prepared
(the "Agreement"), a copy of which is attached hereto as Exhibit A and incorporated
herein by this reference;
WHEREAS, the Town has reviewed performance under the prior franchise and
the quality ofservice during the prior franchise term, has identified the future cable -
related needs and interests ofthe Town and its oitizens, has considered the financial,
technical, and legal qualifications of TDS, and has determined that TDS plans for
operating and maintaining its Cable Systems are adequate, in a full public proceeding
affording due process toall parties;
WHEREAS, the public has had adequate notice and opportunity tocomment on
TDS's proposal to provide cable television service within the Town-,
WHEREAS, the Town has a legitimate and necessary regulatory role in ensuring
the availability of cable communications aervioe, and reliability of cable systems in its
jurisdiction, the availability of local programming and quality customer service-,
WHEREAS, diversity in cable service programming is an important policy goal and
Comcast's cable system should offer a wide range of programming services;
WHEREAS, the Board ofTrustees for the Town ofEstes Park (the ^Board")has
considered this Ordinance authorizing the cable television system franchise and the
WHEREAS, the Board hereby finds that the public has had adequate notice and
opportunity to comment upon the proposed cable television system franchise and the
WHEREAS, the Board hereby finds that itserves the public interest ofthe citizens
of the Town to grant a oob|o television franchise to TDS pursuant to the terms of the
Agreement; and
WHEREAS, the Board hereby finds, determines, and declares that this Ordinance
is promulgated under the general police power of the Town, that it is promulgated for the
heakh, oafety, and welfare of the pub|io, and that this Ordinance is necessary for the
preservation of health and safety and forthe protection of public convenience and welfare.
NOW, THEREFORE, BE|TORDAINED BYTHE BOARD OFTRUSTEES FOR
THE TOWN OF ESTES PARK, COLORADO, AS FOLLOWS:
Section 1. Grant ofFranchise. The Town of Estes Park hereby grants to TDS
Broadband Service LUC. effective January 1. 2024. a nonexclusive Cable Franchise
subject to the terms and conditions set forth in the attached Cable Franchise Agreement
between TOS Broadband Service, LLC, and the Town of Estes park. Colorado.
Section 2.Franchise Agreement. The Town of Estes Park hereby approves and
adopts the attached Cable Franchise Agreement between TDS Broadband Service, LLC,
and the Town of Estes Park, Colorado. The Cable Franchise Agreement ahm|| be
available for public inspection during normal business hours from the Town Clerk at the
offices of the Town of Estes Park, Colorado.
Seotion3. Soverabi|Uy. Ifany part orprovision ofthis Ordinance, orits application
to any person or circumstance, is adjudged to be invalid or unenforceable, the invalidity
or unenforoaabi|hy of such part, pmviaion, or application shall not affect any of the
remaining pahu, provisions or applications of this Ordinance that can be given effect
without the invalid provieion, pert or application, and to this end the provisions and parts
of this Ordinance are declared to be severable.
Section 4. Effective Date. This Ordinance ahaUtakeefeo and bmenforced thirty
(30) days after its adoption and publication.
PASSED AND ADOPTED bythe Board ofTrustees ofthe Town ofEstes
Park, Colorado this 23RD day of JANUARY, 2024.
TOWN OF ESTES PARK, COLORADO
ATTEST:
| hereby certify that the above Ordinance was introduced ataregular meeting ofthe Board
of Trustees on the 23RO day nfJANUARY. 2024 and published by di|e in a newspaper
of general circulation in the Town of Estes Park, Colorado, on the 26TH day of JANUARY,
2024, all as required by the Statutes of the State of Colorado.
APPROVED AS TO FORM:
Town Attorney
TOWN OF ESTES PARK, COLORADO
CABLE FRANCHISE RENEWAL
AGREEMENT
January 23, 2024
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CABLE FRANCHISE RENEWAL AGREEMENT
This Cable Franchise Renewal Agreement ("Agreement") is entered into in Estes Park,
Colorado, this 23`d day of January, 2024, by and between the Town of Estes Park,
Colorado, hereinafter ("Grantor" or the "Town") and TDS Broadband Service LLC
hereinafter known as "Grantee". Grantor and Grantee are sometimes referred to
hereinafter collectively as the "parties."
WHEREAS, Grantee is the successor in interest to Baja Broadband Operating
Company, LLC, the grantee of a cable television franchise agreement (the "2012
Franchise") from Grantor dated December 12, 2012; and
WHEREAS, the Grantor has reviewed Grantee's performance under the 2012
Franchise, and the quality of service during the 2012 Franchise term, has identified the
future cable -related needs and interests of the Grantor and its citizens, has considered the
financial, technical and legal qualifications of Grantee, and has determined that Grantee's
plans for constructing, operating and maintaining its System are adequate, in a public
proceeding affording due process to all parties; and
WHEREAS, the public has had adequate notice and opportunity to comment on
Grantee's proposal to provide cable television service within the Town; and
WHEREAS, the Grantor has a legitimate and necessary regulatory role in
ensuring the availability of cable communications service, technical capability and
reliability of Systems in its jurisdiction, the availability of local programming (including
Governmental Access programming) and quality Customer service; and
WHEREAS, diversity in Cable Service and local and non -local programming is
an important policy goal and the Grantee's System should offer a wide range of
programming services; and
WHEREAS, flexibility to respond to changes in technology, Subscriber interests
and competitive factors within the Cable Service market should be an essential
characteristic of this Agreement; and
WHEREAS, the Town is authorized by applicable law to grant nonexclusive
franchise agreements to construct, operate and maintain cable television Systems
within the boundaries of the Town.
NOW, THEREFORE, in consideration of the mutual promises made herein, and
other good and valuable consideration as provided herein, the receipt and adequacy of
which are hereby acknowledged, Grantor and Grantee do hereby agree as follows:
SECTION I. DEFINITIONS
For the purposes of this Agreement and all Exhibits attached hereto the following terms,
phrases, words and their derivations shall have the meanings given herein. When not
inconsistent with the context, words used in the present tense include the future, words
in the plural include the singular, and words in the singular include the plural. Words not
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defined shall be given their common and ordinary meaning. The word "shall" is always
mandatory and not merely directory.
1.1 "Access" or "Access Programming" means the availability for Noncommercial
use by various governmental and educational agencies, institutions and organizations, in
the community, including Grantor and its designees, of Channels on the System
designated for such use (but not for public access) as permitted under applicable law:
(A) "Educational Access" means Access where Schools are the primary
users having editorial control over programming and services.
(B) "Governmental Access" means Access where governmental institutions
or their designees are the primary users having editorial control over programming and
services.
1.2 "Access Channel" means any Channel, or portion thereof, designated for
Noncommercial Access purposes or otherwise made available to facilitate or transmit
Access programming.
1.3 "Access Contribution" means the payments to be paid to the Grantor by the
Grantee in accordance with section 9.11.
1.4 "Activation" or "Activated" means the status of any capacity on or part of the
System wherein the use of that capacity or part thereof may be made available
without further installation of System equipment other than Subscriber premise
equipment, whether hardware or software.
1.5 "Affiliated Entity" or "Affiliate" when used in connection with Grantee means
any Person who owns or controls, is owned or controlled by, or is under common
ownership or control with Grantee.
1.6 "Agreement" means the document in which this definition appears, that is
executed between Grantor and Grantee, containing the specific provisions of the
authorization granted and the contractual and regulatory agreement created hereby.
1.7 "Applicable Law" means any statute, ordinance, judicial decision, executive
order or regulation having the force and effect of law, that determines the legal standing
of a case or issue.
1.8 "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.
1.9 "Basic Service" means the lowest priced, separately available tier of
Cable Service that includes, at a minimum, the retransmission of local
Broadcast Signals and Access programming.
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1.10 "Broadcast Signal" means a television or radio signal transmitted over the air
to a wide geographic audience, and received by a System off -the -air by antenna,
microwave, satellite dishes or any other means.
1.11 "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.
1.12 "Cable Operator" means any Person or group of Persons, including Grantee, who
provides Cable Service over the System and directly or through one or more Affiliates
owns a significant interest in such System or who otherwise control(s) or is (are)
responsible for, through any arrangement, the management and operation of the System.
1.13 "Cable Service" means the one-way transmission to Subscribers of Video
Programming, or other programming service and Subscriber interaction, if any, which is
required for the selection or use of such Video Programming or other programming
service.
1.14 "Channel" means a portion of the electromagnetic frequency spectrum that is
used in a Cable System and that is capable of delivering or carrying a television
channel (as television channel is defined by the FCC Regulations or as described as
Video Programming Services).
1.15 "Designated Access Provider" means the entity or entities designated by the
Grantor to manage or co -manage Educational or Governmental Access Channels and
facilities. The Grantor may be a Designated Access Provider.
1.16 "Downstream Channel" means a Channel capable of carrying a transmission
from the Headend to remote points on the System or to Interconnection points on the
System.
1.17 "Dwelling Unit" means any building or portion thereof that has independent
living facilities, including provisions for cooking, sanitation and sleeping, and that is
designed for residential occupancy.
1.18 "Expanded Basic Service" means the level of cable programming services
received by most Subscribers above Basic Service and does not include premium, or
pay -per -view services.
1.19 "FCC" means the Federal Communications Commission or its lawful successor.
1.20 "Fiber Optic" means a transmission medium of optical fiber cable by means of
electric lightwave pulses.
1.21 "Franchise Area" means the incorporated area within the jurisdictional
boundaries of the Grantor, including any areas annexed by Grantor during the term of
this Agreement.
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1.22 "Franchise Fee" means that fee payable to the Grantor described in subsection
3.1.
1.23 "GAAP" means generally accepted accounting principles.
1.24 "Gross Revenues" means , and shall be construed broadly to include all revenues
derived directly or indirectly by Grantee, or by Grantee's Affiliates or by any other entity
that is a Cable Operator of the Cable System including Grantee's Affiliates as determined
in accordance with GAAP, from the operation of the Grantee's Cable System to provide
Cable Services in the Town.
(A) Gross Revenues include, by way of illustration and not limitation,
• monthly and other fees charged Subscribers for Cable Services to residential
and/or commercial customers, including without limitation, Basic Service,
Expanded Basic Service, any expanded Tiers of Cable Service, other Tiers of
Cable Service, optional Premium Service, pay -per -view and per -program
Channels
• Cable Service installation, disconnection, reconnection and change -in-service
fees, or similar charges associated with changes in subscriber Cable Service
levels;
• Leased Access Channel fees;
• digital revenues;
• Converter, remote control and other Cable Service equipment rental or lease fees;
• all other Cable Service lease payments from the Cable System,
• Advertising Revenues, which for the purposes of this Gross Revenues definition
shall mean revenues derived from sales of advertising that are made available to
Grantee's Cable System subscribers within the Town and shall be allocated on a
pro rata basis using total Cable Service subscribers reached by the advertising.
Additionally, Grantee agrees that Gross Revenues subject to franchise fees shall
include all commissions, rep fees, Affiliated Entity fees, or rebates paid to entities
associated with sales of advertising on the Cable System within the Town
allocated according to this paragraph using total Cable Service subscribers
reached by the advertising;
• late fees, convenience fees and administrative fees;
• Franchise Fees;
• FCC regulatory fees;
• Commissions from home shopping channels and other Cable Service revenue
sharing arrangements which shall be allocated on a pro rata basis using total
Cable Service subscribers within the Town;
• fees, payments, consideration received by the Grantee from programmers for
carriage of Cable Services on the Cable System; and recognized as revenue under
generally accepted accounting principles (GAAP)
• revenue from the sale or carriage of other Cable Services;
Gross Revenues shall include revenue received by any entity other than the Grantee
where necessary to prevent evasion or avoidance of the obligation under this Agreement
to pay the Agreement Fees.
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(B) Gross Revenues shall not include (i) Bad Debt, provided, however, that all or part
of any such Bad Debt that is written off but subsequently collected shall be included in
Gross Revenues in the period collected; or (ii) any taxes on services furnished by the
Grantee that are imposed directly on any Subscriber or user by the State, Town or other
governmental unit and that are collected by the Grantee on behalf of said governmental
unit, provided that Franchise Fees and the FCC User Fee shall not be regarded as such a
tax or fee. Subject to Federal law, all Franchise Fees may be passed through to
Subscribers.
(C) To the extent revenues are received by Grantee for the provision of a discounted
bundle of services which includes Cable Services and non -Cable Services, Grantee shall
calculate revenues to be included in Gross Revenues using the allocation methodology set
forth in Section 3.10. It is expressly understood that equipment may be subject to
inclusion in the bundled price at full rate card value. This calculation shall be applied to
every bundled service package containing Cable Service from which Grantee derives
revenues in the Town. The Grantor reserves its right to review and to challenge Grantee's
calculations as provided in Section 3.5.
1.25 "Headend" or "Hub" means any Facility for signal reception and dissemination on
the System, including cable, antennas, wires, satellite dishes, monitors, switchers,
modulators, processors for Broadcast Signals or other signals, and other related
equipment and facilities for the Interconnection of the System with adjacent Systems and
Interconnection of any networks that are part of the System, and all other related
equipment and Facilities.
1.26 "Interconnect" or "Interconnection" means the linking of Access Channels with
Access Channels carried on a geographically contiguous Cable System, including
technical, engineering, physical, financial and other necessary components to
accomplish, complete and adequately maintain such linking, in a manner to permit the
transmission and receiving of electronic or optical signals between the System and other
Systems; or to permit the necessary components to accomplish, complete and adequately
maintain pathways that permit the transmission and receiving of electronic or optical
signals between locations connected to portions of the System outside the Franchise
Area and those portions of the System inside the Franchise Area.
1.27 "Leased Access Channel" means any Channel or portion of a Channel
commercially available for programming in accordance with Section 612 of the
Cable Act.
1.28 "Locally Scheduled Original Programming" means Government Access or
Educational Access programming that is created by the Town or any School, Fire
District, Library District or Local Marketing District including edited coverage of live
programming. It shall also include any regional or statewide programming created by
any other organization that makes available programming to the Town that meets the
definition of Access Programming. Such Locally Scheduled Original Programming
shall not be considered as qualifying as such after three (3) cablecasts (initial, first repeat
and second repeat). Automated Video Programming filler, such as cablecasts of
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highways and roads, does not constitute Locally Scheduled Original Programming that
qualifies herein, unless part of screen upon which the referenced cablecasts are shown
also includes what would otherwise qualify as Locally Scheduled Original
Programming.
1.29 "Noncommercial" means those products and services that are not promoted or
sold for profit. This term shall not be interpreted to prohibit an Access Channel operator
or programmer from soliciting and receiving financial support to produce and transmit
Video Programming on an Access Channel, or from acknowledging a contribution, in the
manner of the Corporation for Public Broadcasting or some similar manner, subject to
applicable law.
1.30 "Normal Business Hours" means those hours during which most similar
businesses in the community are open to serve Customers, and must include at least
some evening and weekend hours.
1.31 "Normal Operating Conditions" means those service conditions that are within
the control of the Grantee. Those conditions that are not within the control of the
Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions. Those
conditions that are ordinarily within the control of the Grantee include, but are not
limited to, special promotions, pay -per -view events, rate increases, regular peak or
seasonal demand periods and maintenance or upgrade of the System.
1.32 "Pay Service" or "Premium Service" means Video Programming or other
programming service choices (such as movie Channels or pay -per -view programs)
offered to Subscribers on a per -Channel, per -program or per -event basis.
1.33 "Person" means any natural person, sole proprietorship, partnership, joint
venture, association, or limited liability entity or corporation, or any other form of
entity or organization.
1.34 "Residential Subscriber" means any Person who lawfully receives Cable
Service delivered to Dwelling Units or multiple Dwelling Units, excluding such
multiple Dwelling Units billed on a bulk billing basis.
1.35 "Rights -of -Way" means each of the following which have been dedicated to the
public or are hereafter acquired and dedicated to the public and maintained under public
authority or by others and located within the Town: streets, roads, highways, avenues,
lanes, alleys, bridges, sidewalks, easements, and similar public property or other property
dedicated for compatible uses now or hereafter held by the Grantor within the Franchise
Area. Parks, trails and open space are not rights -of -way.
1.36 "School" means any State accredited K-12 public and private educational
institutions excluding home schools.
1.37 "Service Interruption" means the loss of picture or sound on one or more cable
Channels.
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1.38 "State" means the State of Colorado.
1.39 "Subscriber" or "Customer" means any Person who lawfully receives Cable
Services provided by Grantee by means of the System with Grantee's express
permission.
1.40 "System" or "Cable 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 federal 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 47 U.S.C., Section 573 of the Cable Act; or (5) any facilities of any
electric utility used solely for operating its electric utility systems. When used herein, the
term "Cable System" or "System" shall mean Grantee's Cable System in the Franchise
Area unless the context indicates otherwise.
1.41 "Tier" means a category of Cable Services provided by the Grantee for which a
separate rate is charged.
1.42 "Town" or "Grantor" means the Town of Estes Park, Colorado.
1.43 "Video Programming" means programming provided by, or generally considered
comparable to programming provided by a television broadcast station.
SECTION 2. GRANT OF AGREEMENT
2.1 Grant
(A) Grantor 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 both a right and an obligation to
provide the Cable Services required by, and to fulfill the obligations set forth in, the
provisions of this Agreement.
(B) The Grantee, through this Agreement, is granted the right to operate its
System to provide Cable Services using the Grantor's Rights -of -Way within the
Agreement Area subject to the provisions of Applicable Law, and in compliance with all
ordinances and regulations enacted pursuant thereto. This Agreement is a contract and
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except as to those changes which are the result of Grantor's lawful exercise of its general
police power, the Grantor may not take any unilateral action which has the effect of
limiting the benefits or expanding the obligations of Grantee that are granted or imposed
by this Agreement. Grantee reserves the right to challenge provisions of any ordinance,
rule, regulation, resolution or other enactment of the Grantor that conflicts with its
contractual rights under this Agreement, either now or in the future.
(C) 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 generally applicable permit or authorization required
for the privilege of transacting and carrying on a business within the Town that
may be required by the ordinances and laws of the Town. Grantee shall pay
permit fees and inspection fees as required by the Town from businesses in the
regular course of business.
(2) Any generally applicable permit, agreement or authorization
required by the Town 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 generally applicable permits or agreements for occupying
any other property of the Town or private entities to which access is not
specifically granted by this Agreement including, without limitation,
permits and agreements for placing devices on poles, in conduits or in or on
other structures.
(E) This Agreement is intended to convey limited rights and interests only as
to those Rights -of -Ways in which the Grantor has an actual interest. It is not a warranty
of title or interest in any Rights -of -Way; it does not provide the Grantee with any interest
in any particular location within the Rights -of -Way; and it does not confer rights other
than as expressly provided in the grant hereof.
(F) This Agreement is an express authorization to provide Cable Services
only and does not authorize, prohibit or condition Grantee's provision of non -Cable
Services, telecommunications services or information services in the Franchise Area.
This Agreement is not a bar to the imposition of any lawful conditions on Grantee with
respect to non -Cable Services, telecommunications services or information services,
whether similar, different or the same as the condition specify herein. This Agreement
does not relieve Grantee of any obligation it may have to obtain from the Town 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. However, this Agreement shall not be read as a concession by
Grantee that it needs authority to provide non -Cable Services, telecommunications
services or information services.
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2.2 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 Agreement Area, such wires, cables (both coaxial and Fiber Optic), conductors,
ducts, conduit, vaults, manholes, amplifiers, appliances, pedestals, attachments and other
property and equipment as are necessary and appurtenant to the operation of a System for
the provision of Cable Services within the Franchise Area.
(B) Grantee must install, operate, maintain, and when required by Applicable
Law, remove 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.
Grantee shall comply with all Applicable Law and must obtain any and all necessary
permits from the Town prior to commencing any construction activities.
2.3 Duration
The term of this Agreement and all rights, privileges, obligations and restrictions
pertaining thereto shall commence upon the effective date hereof and shall expire on
January 31, 2034 unless lawfully terminated sooner as hereinafter provided.
2.4 Effective Date
(A) This Agreement and the rights, privileges, and authority granted
hereunder and the contractual relationship established hereby shall take effect and be in
force from and after the effective date of this Agreement as specified in this Section.
(B) The effective date of this Agreement shall be thirty (30) days after
publication of the ordinance approving the Agreement.
(C) The grant of this Agreement shall have no effect on the Grantee's duty
under the 2012 Franchise or any ordinance in effect prior to the effective date of this
Agreement to indemnify or insure the Grantor against acts and omissions occurring
during the period that the 2012 Franchise was in effect, nor shall it have any affect upon
liability to pay all Franchise Fees (for any prior years) that were due and owed under the
2012 Franchise.
2.5 Agreement Nonexclusive
This Agreement shall be nonexclusive, and subject to all prior rights, interests,
easements, or agreements granted by Grantor or its predecessors to any Person to use any
property, Right -of -Way, easement, right, interest for any purpose whatsoever, including
the right of Grantor to use same for any purpose it deems fit, including the same or
similar purposes allowed Grantee hereunder. Grantor may at any time grant authorization
to use the Rights -of -Way for any purpose not incompatible with Grantee's authority
under this Agreement and for such additional franchises for Cable Systems as Grantor
deems appropriate.
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2.6 Grant of Other Agreements
(A) In the event Grantor enters into an agreement, permit, authorization or
other agreement of any kind with any other Person or entity other than the Grantee,
including itself, to enter into the Grantor's streets or Rights -of -Way for the purpose of
constructing or operating a wireline System in order to provide Cable Service to the
Franchise Area in which the Grantee is providing Cable Service under the terms and
conditions of this Agreement or is required to extend Cable Service under the
provisions of this Agreement and if another cable operator offers Cable Service in the
Franchise Area served by Grantee then at Grantee's request, Grantor shall agree to
amend this Agreement, on a going -forward basis only, for the limited purpose of
ensuring that the material terms and conditions herein (unless prohibited by Applicable
Law) shall be reasonably comparable and shall be neither more favorable nor less
burdensome than those governing the other cable operator, in order that one wireline
cable operator not be granted an unfair competitive advantage over another. "Material
terms and conditions" include, but are not limited to: Franchise Fees and Gross
Revenues; insurance; System build -out requirements; security instruments; Access
Channels and support; customer service standards; required reports and related record
keeping; grant of other agreements; audits; dispute resolution; remedies; and notice and
opportunity to cure breaches. The parties agree that this provision shall not require a
word for word identical franchise so long as the regulatory and financial burdens on
each entity are materially equivalent.
(B) The modification process of this Franchise as provided for in Section 2.6
(A) shall only be initiated by written notice by the Grantee to the Grantor regarding
specified franchise obligations. Grantee's notice shall address the following: (1)
identifying the specific terms or conditions in the competitive cable services franchise
which are materially different from Grantee's obligations under this Franchise; (2)
identifying the Franchise terms and conditions for which Grantee is seeking
amendments; (3) providing text for any proposed Franchise amendments to the Grantor,
with a written explanation of why the proposed amendments are necessary and
consistent.
(C) Upon receipt of Grantee's written notice as provided in Section 2.6 (B),
the Grantor and Grantee agree that they will use best efforts in good faith to negotiate
Grantee's proposed Franchise modifications, and that such negotiation will proceed and
conclude within a ninety (90) day time period, unless that time period is reduced or
extended by mutual agreement of the parties. If the Grantor and Grantee reach agreement
on the Franchise modifications pursuant to such negotiations, then the Grantor shall
amend this Franchise to include the modifications.
2.7 Familiarity with Agreement
The Grantee acknowledges and warrants by acceptance of the rights, privileges and
agreement granted herein, that it has carefully read and fully comprehends the terms and
conditions of this Agreement and is willing to and does accept all reasonable risks of
the meaning of the provisions, terms and conditions herein. The Grantee further
acknowledges and states that it has fully studied and considered the requirements and
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provisions of this Franchise, and finds that the same are commercially practicable at this
time, and consistent with all Applicable Law currently in effect, including the Cable
Act.
2.8 Effect of Acceptance
By accepting the Agreement, the Grantee: (1) acknowledges and accepts the Grantor's
legal right to issue and enforce the Agreement; (2) accepts and agrees to comply with
each and every provision of this Agreement subject to Applicable Law; 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.
2.9 Police Powers
Grantee's rights hereunder are subject to the lawful police powers of Grantor to adopt and
enforce ordinances necessary to the safety, health and welfare of the public, and Grantee
agrees to comply with all Applicable Laws enacted pursuant to the police powers of
Grantor, or hereafter enacted in accordance therewith, by Grantor or any other legally
constituted governmental unit having lawful jurisdiction over the subject matter hereof.
The Town reserves the right to exercise its lawful police powers, notwithstanding
anything in this Agreement to the contrary. Grantee reserves the right to challenge
provisions of any ordinance, rule, regulation, resolution or other enactment of the
Grantor that conflicts with its contractual rights either now or in the future.
2.10 Change in Law Modification
Should there be a change in federal or state law or regulation that alters the rights,
obligations, or authority of either Grantee or Grantor in a way that either party believes
requires amendment to the terms of this Agreement in order to bring the Agreement into
compliance with the change in law, the party believing such amendment is necessary
shall provide written notice to the other party. The Parties agree that receipt of such
notice shall initiate a one hundred twenty (120) day negotiation period, which can be
extended or shortened by agreement of the Parties, during which the Parties will
negotiate in good faith any required amendment. If the Parties cannot agree upon an
appropriate amendment, or whether an amendment is required by the change in law, the
terms of this Agreement shall remain intact and each party reserves its rights to seek
alternative remedies, including but not limited to seeking a declaratory judgment from a
court of competent jurisdiction.
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS
3.1 Franchise Fee
As compensation for the use of Grantor's Rights -of -Way, Grantee shall pay as an
Franchise Fee to Grantor, throughout the duration of this Agreement, an amount equal to
five percent (5%) of Grantee's Gross Revenues. Accrual of such Franchise Fee shall
commence as of the effective date of this Agreement, but shall not be paid to the Town
until the next required filing.
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3.2 Payments
Grantee's Franchise Fee payments to Grantor shall be computed quarterly for the
preceding calendar quarter ending March 31, June 30, September 30, and December
31. Each quarterly payment shall be due and payable no later than forty-five (45) days
after said dates.
3.3 Acceptance of Payment
No acceptance of any payment shall be construed as an accord by Grantor that the
amount paid is, in fact, the correct amount, nor shall any acceptance of payments be
construed as a release of any claim Grantor may have for further or additional sums
payable or for the performance of any other obligation of Grantee. The period of
limitation for recovery of Agreement Fees payable hereunder shall be three (3) years
from the date on which payment by the Grantee was due.
3.4 Quarterly and Annual Franchise Fee Reports
Each payment shall be accompanied by a written report to Grantor 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. Such reports shall detail all Gross Revenues of the System and shall be
drafted in accordance with GAAP. The Grantee shall file an annual financial report,
consisting of Grantee's corporate parent's 10-K filed with the Securities and Exchange
Commission, as well as a statement of Gross Revenues from Grantee's operations in the
Town for the preceding 12 month period. This shall be submitted along with such other
reasonable information as the Town may reasonably request with respect to Grantee's
revenues and expenses related to its Cable System operations within the Town.
3.5 Audits
(A) On a maximum annual basis, upon thirty (30) days' prior written notice,
Grantor shall have the right to conduct an independent audit or financial review of
Grantee's records regarding Gross Revenues reasonably related to the enforcement of
this Agreement and to calculate any amounts determined to be payable under this
Agreement. Pursuant to subsection 1.24, as part of the Franchise Fee audit/review the
Grantor shall specifically have the right to review relevant data related to the allocation
of revenue to Cable Services in the event Grantee offers Cable Services bundled with
non -Cable Services. For purposes of this section, "relevant data" shall include, at a
minimum, Grantee's records, produced and maintained in the ordinary course of
business, showing the subscriber counts per package and the revenue allocation per
package for each package that was available for Grantor subscribers during the audit
period. To the extent that the Grantor does not believe that the relevant data supplied
is sufficient for the Grantor to complete its audit/review, the Grantor may require other
relevant data. For purposes of this Section 3.5, the "other relevant data" shall generally
mean all: (1) billing reports, (2) financial reports (such as General Ledgers) and (3)
sample customer bills used by Grantee to determine Gross Revenues for the Franchise
Area that would allow the Grantor to recompute the Gross Revenue determination.
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(B) Provided Grantee cooperates in making all relevant records available
upon reasonable advance written request, Grantor 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 additional amounts due to the Grantor as a result
of the audit shall be paid within ninety (90) days following written notice to the
Grantee by the Grantor, which notice shall include a copy of the audit/review findings,
and Grantee's agreement that the audit findings are correct.
(C) If an undisputed Franchise Fee underpayment is discovered as the result
of an audit, Grantee shall pay, in addition to the amount due, interest at the rate of one
and one-half percent (1 1/2 %) per month calculated from the date the underpayment
was originally due until the date the Town receives the payment. If the audit shows that
Franchise Fees have been underpaid, by five percent (5%) or more in a calendar year,
Grantee shall pay the reasonable cost of the audit such cost for the entire audit not to
exceed $5,000 per audit year.
3.6 Financial Records
Grantee agrees to meet with a representative of the Grantor upon request to review
Grantee's methodology of record -keeping, financial reporting, the computing of
Franchise Fee obligations and other procedures, the understanding of which the Grantor
deems necessary for reviewing reports and records that are relevant to the enforcement
of this Agreement. The parties shall use best efforts to conduct such meetings
telephonically.
3.7 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 rate of one and one-half percent (1 1/2%) per month on the date the
payment was due, calculated from the date the payment was originally due until the date
the Town receives the payment.
3.8 Additional Commitments Not Franchise Fees
(A) The Access Contribution pursuant to Section 9.11, as well as any charges
incidental to the awarding or enforcing of this Franchise (including, without limitation,
payments for bonds, security funds, letters of credit, insurance, indemnification, penalties
or liquidated damage) and Grantee's costs of compliance with customer service standards
and build out obligations shall not be offset against Franchise Fees. Furthermore, the
Grantor and Grantee agree that any local tax of general applicability shall be in addition to
any Franchise Fees required herein, and there shall be no offset against Franchise Fees.
Notwithstanding the foregoing, Grantee reserves all rights to offset cash or non -cash
consideration or obligations from Franchise Fees, consistent with Applicable Law. The
Grantor likewise reserves all rights it has under Applicable Law. Should Grantee elect to
offset the items set forth herein, or other Franchise commitments such as complimentary
Cable Service, against Franchise Fees in accordance with Applicable Law, Grantee shall
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provide the Grantor with advance written notice. Such notice shall document the proposed
offset or service charges so that the Grantor can make an informed decision as to its course
of action. Upon receipt of such notice Grantor shall have up to one hundred twenty (120)
days to either (1) maintain the commitment with the understanding that the value shall be
offset from Franchise Fees; (2) relieve Grantee from the commitment obligation under the
Franchise; or (3) pay for the services rendered pursuant to the commitment in accordance
with Grantee's regular and nondiscriminatory term and conditions.
(B) Grantee's notice pursuant to Section 3.8(A) shall, at a minimum, address
the following: (1) identify the specific cash or non -cash consideration or obligations that
must be offset from Grantee's Franchise Fee obligations; (2) identify the Franchise terms
and conditions for which Grantee is seeking amendments; (3) provide text for any proposed
Franchise amendments to the Grantor, with a written explanation of why the proposed
amendments are necessary and consistent with Applicable Law; and (4) provide all
information and documentation reasonably necessary to address how and why specific
offsets are to be calculated. Nothing in this Section 3.8(B) shall be construed to extend the
one hundred twenty (120) day time period for Grantor to make its election under Section
3.8(A); provided however, that any disagreements or disputes over whether sufficient
information has been provided pursuant to this Paragraph (B) may be addressed under
Section 15 of this Franchise.
(C) Upon receipt of Grantee's written notice as provided in Section 3.8(B), the
Grantor and Grantee agree that they will use best efforts in good faith to negotiate Grantee's
proposed Franchise modifications and agree to what offsets, if any, are to be made to the
Franchise Fee obligations. Such negotiation will proceed and conclude within a one
hundred twenty (120) day time period, unless that time period is reduced or extended by
mutual agreement of the parties. If the Grantor and Grantee reach agreement on the
Franchise modifications pursuant to such negotiations, then the Grantor shall amend this
Franchise to include those modifications.
(D) If the parties are unable to reach agreement on any Franchise Fee offset
issue within one hundred twenty (120) days or such other time as the parties may mutually
agree, each party reserves all rights it may have under Applicable Law to address such
offset issues.
(E) The Grantor acknowledges that Grantee currently provides one outlet of
Basic Service and Digital Starter Service and associated equipment to certain Grantor
owned and occupied or leased and occupied buildings, schools, fire stations and public
libraries located in areas where Grantee provides Cable Service. For purposes of this
Franchise, "school" means all State -accredited K-12 public and private schools. Outlets of
Basic and Digital Starter Service provided in accordance with this subsection may be used
to distribute Cable Services throughout such buildings, provided such distribution can be
accomplished without causing Cable System disruption and general technical standards are
maintained. Grantee's commitment to provide this service is voluntary, and may be
terminated by Grantee, at its sole discretion.
(1) Grantee's termination of complimentary services provided shall be
pursuant to the provisions of Section 3.8(A)-(E) above. Grantor may make a
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separate election for each account or line of service identified in the notice (for
example, Grantor may choose to accept certain services or accounts as offsets to
Franchise Fees, and discontinue other services or accounts), so long as all elections
are made within one hundred twenty (120) days.
(2) Notwithstanding the foregoing, Grantee reserves all rights to offset
cash or non -cash consideration or obligations from Franchise Fees, consistent with
Applicable Law. The Grantor likewise reserves all rights it has under Applicable
Law.
3.9 Payment on Termination
If this Agreement terminates for any reason, the Grantee shall file with the Grantor
within one hundred twenty (120) calendar days of the date of the termination, a financial
statement, certified by an independent certified public accountant, showing the Gross
Revenues received by the Grantee since the end of the previous fiscal year. Within forty
five (45) days of the filing of the certified statement with the Grantor, Grantee shall pay
any unpaid amounts as indicated. If the Grantee fails to satisfy its remaining financial
obligations as required in this Agreement, the Grantor may do so by utilizing the funds
available in a Letter of Credit or other security provided by the Grantee.
3.10 Bundling
(A) Grantor acknowledges that, during the term of this Agreement, Grantee
may offer to its Subscribers, at a discounted rate, a bundled or combined package of
services consisting of Cable Services, which are subject to the Franchise Fee referenced
above in section 3.1, and other services that are not subject to that Franchise Fee. To the
extent discounts reduce revenues includable for purposes of calculating Franchise Fees,
the Grantee shall, in accordance with GAAP, calculate the Franchise Fees based on the
retail price of Cable Services in the bundle reduced by no more than a proportionate
share of the overall discount. By way of illustrative example, if Cable Service A is sold
separately at a price of $40 per month, Non -Cable Service B is sold separately at a price
of $40 per month and Non -Cable Service C is sold separately at a price of $40 per
month, but the three services when purchased together are sold for a single aggregate
price of $100 per month, the amount of the $100 per month collected by Grantee from
each Subscriber purchasing the bundle which is to be included under Gross Revenues
under this Franchise (i.e., the amount attributable to Cable Service) shall be $33.33 per
month. As a second example, if Cable Service A is sold separately at a price of $50 per
month, Non -Cable Service B is sold separately at a price of $63 per month, Non -Cable
Service C is sold separately at a price of $74 per month, but the three services when
purchased together are sold for a single aggregate price of $150 per month, the amount
of the $150 per month collected by Grantee from each Subscriber purchasing the
bundle which is to be included in Gross Revenues under this Franchise (i.e., the amount
attributable to Cable Service) shall be $40.11 per month. These examples are based
upon GAAP in effect as of the Effective Date of this Franchise. In the event these
principles change such that it creates a conflict between GAAP and the foregoing
examples in the future, Grantee shall continue to treat its bundled Cable and Non -Cable
Service offerings in accordance with GAAP. If a dispute arises between the parties
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regarding this matter, Grantor and Grantee will meet within ten (10) days notice and
discuss such matters in good faith in an attempt to reach a reasonable compromise
thereof.
(B) Grantee reserves the right to change the allocation methodologies set forth
in this Section 3.10 in order to meet the standards required by governing accounting
principles as promulgated and defined by the Financial Accounting Standards Board
("FASB"), Emerging Issues Task Force ("EITF") and/or the U.S. Securities and
Exchange Commission ("SEC"). To the extent Grantee changes the allocation
methodologies set forth herein, Grantee shall provide written notice to the Grantor of the
new methodology within ninety (90) days of making such changes, , and any such
changes shall be subject to 3.10(C) below.
(C) Resolution of any disputes over the classification of revenue should first
be attempted by agreement of the Parties, but should no resolution be reached, the Parties
agree that reference shall be made to generally accepted accounting principles ("GAAP")
as promulgated and defined by the Financial Accounting Standards Board ("FASB"),
Emerging Issues Task Force ("EITF") and/or the U.S. Securities and Exchange
Commission ("SEC"). Notwithstanding the forgoing, the Grantor reserves its right to
challenge Grantee's calculation of Gross Revenues, including the interpretation of GAAP
as promulgated and defined by the FASB, EITF and/or the SEC.
3.11 Tax Liability
The Franchise Fees shall be in addition to any taxes or other levies or assessments
which are now or hereafter required to be paid by businesses in general by any law of
the Town, 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 license
fee, permit fee, tax or charge on the business, occupation, property or income of
Grantee that may be lawfully imposed by the Town. Any other license fees, taxes or
charges shall be of general applicability in nature and shall not be levied against
Grantee solely because of its status as a Cable Operator or against Subscribers solely
because of their status as such.
SECTION 4. ADMINISTRATION AND REGULATION
Grantor shall be vested with the power and right to administer and enforce the
requirements of this Agreement and the regulations and requirements of Applicable
Law, including the Cable Act, or to delegate that power and right of administration, or
any part thereof, to the extent permitted under federal, State and local law, to any agent
in the sole discretion of the Town provided, however, that Grantee shall have the right to
appeal to the Town Board any adverse determination made by a delegate of the Town.
4.1 No Rate Discrimination
All Grantee rates and charges 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 similar
17
circumstances and conditions. Grantee shall apply its rates in accordance with governing
law. Nothing herein shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in
conjunction with promotional campaigns;
(B) The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens; or
(C) The offering of bulls discounts for Multiple Dwelling Units.
4.2 Filing of Rates and Charges
Throughout the term of this Agreement, Grantee shall, if requested by Grantor and if not
otherwise available to Grantor via the Internet, maintain on file with Grantor a complete
schedule of applicable rates and charges for Cable Services provided under this
Agreement. Nothing in this subsection shall be construed to require Grantee to file rates
and charges under temporary reductions or waivers of rates and charges in conjunction
with promotional campaigns. As used in this subsection, no rate or charge shall be
considered temporary if Subscribers have the ability over a period greater than twelve
(12) consecutive months (or such other period as may be approved by Grantor) to
purchase Cable Services at such rate or charge.
4.3 Late Fees
(A) For purposes of this subsection, any assessment, charge, cost, fee or
sum, however, characterized, that the Grantee imposes upon a Subscriber solely for late
payment of a bill is a late fee and shall be applied in accordance with Applicable Law.
(B) The Grantee's late fee and disconnection policies and practices shall be
nondiscriminatory, and such policies and practices, and any fees imposed pursuant to
this subsection, shall apply equally in all parts of the Franchise Area without regard to
the neighborhood or income level of the subscribers.
(C) Nothing in this subsection shall be deemed to create, limit or otherwise
affect the ability of the Grantee to impose other assessments, charges, fees or sums for
the Grantee's other services or activities it performs in compliance with applicable law
including FCC law, rule or regulation.
(D) For purposes of calculating the Franchise Fee, any late fee shall be
allocated according to GAAP and be split across Cable Service and Non -Cable Service
proportionally.
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SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
(A) General Indemnification. Grantee shall indemnify, defend and hold
Grantor, its officers, officials, boards, commissions, authorized agents and employees,
and self-insurance pool harmless from any action or claim for injury, damage, loss,
liability, cost or expense, including court and appeal costs and attorneys' fees and
expenses, arising from any casualty or accident to Person or property, including, without
limitation, copyright infringement, 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
authorized agents, or its employees; provided however Grantee shall not be obligated to
indemnify or defend any claim or action arising from or related to the negligence or
willful misconduct of indemnified parties or arising from or related to the operation or use
of the Access Channels by Governmental or Educational personnel. Grantee shall consult
and cooperate with the Grantor while conducting its defense of the Grantor.
(B) Indemnification for Relocation. Grantee shall indemnify Grantor for any
damages, claims, additional costs or expenses assessed against, or payable by, Grantor
related to, arising out of, or resulting from Grantee's failure to remove, adjust or relocate
any of its facilities in the streets in a timely manner in accordance with any relocation
required by Grantor.
(C) Exceptions. Grantee will not be required to indemnify the indemnified
parties or any third party for any claims arising out of the use of Access Channels by
the Grantor and/or its Designated Access Providers or use by the Grantor of the
Emergency Alert System.
(D) Additional Circumstances. Grantee shall also indemnify, defend and hold
Grantor harmless for any claim for injury, damage, loss, liability, cost and expense,
including court and appeal costs and attorneys' fees and expenses in any way arising out
of any failure by Grantee to secure consents from the owners, authorized distributors or
franchisees/licensors of programs to be delivered by the System.
(E) Procedures and Defense. If a claim or action arises, Grantor or any other
indemnified party shall promptly tender the defense of the claim or action to Grantee,
which defense shall be at Grantee's expense. Grantor may participate in the defense of a
claim at its own expense and, in any event, Grantee may not agree to any settlement of
claims financially affecting Grantor without Grantor's written approval that shall not be
unreasonably withheld.
(F) Duty of Defense. The fact that Grantee carries out any activities under
this Agreement through independent contractors shall not constitute an avoidance of or
defense to Grantee's duty of defense and indemnification under this Section.
(G) Duty to Give Notice. The Grantor shall give the Grantee timely written
notice of any claim or of the commencement of any action, suit or other proceeding
19
covered by the indemnity in this Section. In the event any such claim arises, the Grantor
or any other indemnified party shall tender the defense thereof to the Grantee, and the
Grantee shall have the obligation and duty to defend any claims arising thereunder and
the Grantor shall cooperate fully therein.
(H) Separate Representation. If separate representation to fully protect the
interests of both parties is necessary, such as a conflict of interest between the Grantor
and the counsel selected by Grantee to represent the Grantor, Grantor may participate at
its own expense. Grantee shall pay attorneys' fees and expenses incurred by the Grantor
in defending itself with regard to any action, suit or proceeding indemnified by Grantee.
The Grantor's fees and expenses shall include all reasonable out-of-pocket expenses, such
as outside counsel fees, and shall also include the reasonable value of any services
rendered by the Town Attorney or his/her assistants or any employees of the Grantor or
its agents but shall not include outside attorneys' fees or consultant fees for services that
are unnecessarily duplicative of services provided the Grantor by Grantee.
(I) During the period while Grantee owned the System prior to the Effective
Date of this Agreement, the grant of this Agreement shall have no effect on the Grantee's
duty under the 2012 Franchise to indemnify or insure the Town against acts and
omissions involving third parties occurring during the period that the 2012 Franchise
was in effect, nor shall it have any effect upon Grantee's liability to pay all Franchise
Fees which were due and owed under the 2012 Agreement.
(J) Colorado Government Immunity. The parties hereby agree and affirm
that nothing in this Agreement shall be deemed a waiver of the defenses and limitations
of the Colorado Governmental Immunity Act, Section 24-10-101 C.R.S., et seq. or any
immunities, limitations or defenses otherwise provided to the Town under federal or
state law and shall not be deemed to confer any benefits to any Person or entity not a
party to this Agreement.
5.2 Insurance Requirements
(A) General Requirement. Grantee shall at its own expense purchase and
maintain the minimum insurance required herein (and in no event shall occurrence
basis minimum limits be less than provided for by C.R.S. §24-10-114(1)(b)) with
companies duly franchised or licensed to do business in the State of Colorado. Said
insurance shall possess a current A.M. Best, Inc. rating of A -VI or better.
Said insurance shall be maintained in full force and effect until all work required to
be performed under the terms of this Agreement is satisfactorily completed.
Grantee solely shall be responsible for deductibles and/or self -insured retention.
(B) Minimum Insurance Limits. Grantee must maintain during the Agreement
term insurance in effect in accordance with the minimum insurance limits herein set forth
by the Grantor. The Grantee shall provide a certificate of insurance for the following
Minimum insurance limits:
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(1) Commercial General Liability: Two Million Dollars ($2,000,000) per
occurrence for bodily injury, personal injury and property damage, with Four Million
Dollars ($4,000,000) aggregate limit, and Two million dollars ($2,000,000) products and
completed operations;
(2) Automobile Liability: One million dollars ($1,000,000) combined
single limit per accident for bodily injury and property damage; and
(3)
Employer's Liability: One hundred thousand dollars ($100,000).
(4) Umbrella Liability Insurance in the amount of Three Million
Dollars ($3,000,000).
(5) Workers Compensation Insurance in accordance with State
law requirements. .
(6) Grantee shall be responsible for judgments, settlements, damages,
costs, attorneys' fees and expenses that exceed limits of Grantee's insurance coverage.
(C) Endorsements.
(1) All policies shall contain, or shall be endorsed so that:
(a) The Grantor, its officers, officials, boards, commissions,
employees and agents are to be covered as, and have the rights of, additional
insureds with respect to liability arising out of activities performed by, or
on behalf of, Grantee under this Franchise or Applicable Law, or in the
construction, operation or repair, or ownership of the Cable System;
(b) Grantee's insurance coverage shall be primary insurance
with respect to the Grantor, its officers, officials, boards, commissions,
employees and agents. Any insurance or self-insurance maintained by the
Grantor, its officers, officials, boards, commissions, employees and agents
shall be in excess of the Grantee's insurance and shall not contribute to it;
and
(c) Grantee's insurance shall apply separately to each insured
(except for claims of named insured versus named insured) against whom a
claim is made or lawsuit is brought, except with respect to the limits of the
insurer's liability, and policy exclusions.
(2) The insurance shall provide that the insurance shall not be cancelled or
materially altered so as to be out of compliance with the requirements of this Section
without thirty (30) days written notice first being given to Grantor.
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5.3 Security
(A) Grantee shall provide, subject to the requirement of Subsection 5.3 (B)
below a Performance Bond in the amount of five thousand dollars ($5,000) to ensure the
faithful performance of its responsibilities under this Agreement and applicable law,
including, by way of example and not limitation, its obligations to relocate and remove
its facilities and to restore Town Rights -of -Way and other property. Grantee may be
required to obtain additional bonds, such as generally applicable Construction Bonds, in
accordance with the Town's ordinary practices. The Construction Bond and Performance
Bond shall be in a form reasonably acceptable to the Town's Risk Manager. Grantee
shall pay all premiums or costs associated with maintaining the bond(s), and shall keep
the same in full force and effect at all times. Except as expressly provided herein, the
Grantee shall not be required to obtain or maintain other bonds as a condition of being
awarded the Agreement or continuing its existence. Grantee may substitute the
performance bond with a letter of credit or similar instrument in the amount of
$5,000.00.
(B) If there is an uncured breach of a material provision of this Agreement or
pattern of repeated violations of any provision(s) of this Agreement, then the Town may
request and Grantee shall establish and provide, within thirty (30) days from receiving
notice from the Town, to the Town as security for the faithful performance by Grantee of
all of the provisions of this Agreement, a letter of credit from a financial institution
satisfactory to the Town or a Performance Bond in the amount of five thousand dollars
($5,000).
(C) After the giving of notice by the Town to Grantee, and expiration of any
applicable cure period, the letter of credit or performance bond may be drawn upon by
the Town for purposes that include, but are not limited to the following:
(1)
of this Agreement;
Failure of Grantee to pay the Town sums due under the terms
(2) Reimbursement of costs borne by the Town to correct
Agreement violations not corrected by Grantee; and
(3) Monetary remedies or damages assessed against Grantee
as provided in this Agreement.
(D) The Town shall give Grantee written notice of any withdrawal under this
subsection upon such withdrawal. Any such withdrawal must be after and subject to the
cure provisions provided in this Agreement. Within fifteen (15) days following receipt of
such notice, Grantee shall restore the letter of credit or performance bond to the amount
required under this Agreement. Grantee's maintenance of the letter of credit or
performance bond shall not be construed to excuse unfaithful performance by Grantee or
limit the liability of Grantee to the amount of the letter of credit or performance bond or
otherwise limit the Town's recourse to any other remedy available at law or in equity.
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(E) The letter of credit and bonds shall provide that the letter of credit and
bonds shall not be cancelled or materially altered so as to be out of compliance with the
requirements of this Section without thirty (30) days written notice first being given to
Grantor. If the letter of credit and bonds are cancelled or materially altered so as to be out
of compliance with the requirements of this Section within or beyond the term of this
Agreement, Grantee shall provide a replacement letter of credit and bonds. Grantee agrees
to maintain continuous uninterrupted letter of credit and bonds in the amounts required as
specified in this Agreement.
(F) Grantee shall have the right to appeal to the Town Board for
reimbursement in the event Grantee believes that the letter of credit or bond was drawn
upon improperly. After a determination by the Town Board, Grantee shall also have the
right of judicial appeal if Grantee believes the letter of credit or bond has not been
properly drawn upon in accordance with this Agreement. Any funds the Town
erroneously or wrongfully withdraws from the letter of credit or bond shall be returned to
Grantee with interest, from the date of withdrawal at a rate equal one and one-half
percent (1 1/2%) per month.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
Grantee shall comply with Customer Service Standards as provided in FCC Standards
47 C.F.R. Sections 76.309, 76.1602, 76.1603 and 76.1619, and as they may be
amended. Additionally, Grantee shall provide its service under Normal Operating
Conditions and comply with the Customer Service Standards set forth in Exhibit I
attached hereto and made a part hereof. Grantee recognizes that the Grantor may amend
the Customer Service Standards from time to time through generally applicable
resolution or ordinance in the exercise of its legally authorized police power. Grantee
reserves the right to challenge any Customer Service Standard that it believes is
inconsistent with its rights under this Agreement.
6.2 Subscriber Privacy
Grantee shall comply with privacy rights of Subscribers in accordance with Applicable
Law.
6.3 Customer Service Location
Throughout the Agreement term, the Grantee must maintain convenient and reasonably
accessible methods for Customers to pay bills, receive, return equipment, obtain
information related to services and products, and speak with a Customer Service
Representative. Grantor and Grantee acknowledge that, in the current economic climate,
staffing the existing local office in the Town is very difficult. Nevertheless, Grantee shall
undertake good faith and reasonable best-efforts to staff the local office and keep it open.
However, no sooner than one year after the Effective Date, if Grantee's best-efforts to
maintain staffing of the local office fail, then, upon sixty (60) days written notice,
Grantee may close the local office. Grantee shall maintain a toll -free telephone number
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over which Customers' complaints and requests for repair, service, or adjustments may
be received at any time. Grantee is encouraged but not required to provide a website
whereby Subscribers can request service credit and service information.
6.4 Customer Service Agreement and Manual
(A) Grantee shall provide to Subscribers an accurate, comprehensive
service agreement (currently called the work order) and Customer installation packet
(currently called the Install Packet) for use in establishing Subscriber service consistent
with Grantee's standard operating practices.
(B) A copy of the installation packet shall be provided to each Subscriber at
the time of initial installation or Cable Service upgrade requiring a home visit by the
Grantee (excluding reconnections to the same Subscriber within twelve (12) months), and
at any time the packet is requested by the Subscriber. Within thirty (30) days following
material policy changes, information regarding the changes will be provided to
Subscribers.
SECTION 7. REPORTS AND RECORDS
7.1 Records
Upon thirty (30) days prior written notice, Grantor shall have access to, and the right to
inspect, any books and records of Grantee and its Affiliates that are reasonably related to
the enforcement of the terms of this Agreement. Grantee shall not be obligated to
maintain any books or records for a period longer than three (3) years unless an audit or
financial review is pending, and in the case of Subscriber complaints, for a period of one
(1) year, and Grantee shall not deny Grantor access to any of Grantee's records on the
basis that Grantee's records are under the control of any parent corporation, Affiliated
Entity or a third party. Grantor 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. One copy of all reports and records required under this or any other Section shall
be furnished to Grantor at the sole expense of Grantee. If the requested books and records
are too voluminous, or for security reasons cannot be copied or removed, then Grantee
may request, in writing within ten (10) days of receipt of such request, that Grantor
inspect them at Grantee's local offices. If any books or records of Grantee are not kept in
a local office and not made available in copies to Grantor upon written request as set
forth above, and if Grantor determines that an examination of such records is necessary
for the enforcement of this Agreement, then all reasonable travel expenses incurred in
making such examination shall be paid by Grantee.
7.2 Confidentiality
The Grantor agrees to treat as confidential any books or records that constitute
proprietary or confidential information under federal or State law, to the extent Grantee
makes the Grantor aware of such confidentiality. Grantee shall be responsible for
clearly and conspicuously stamping the word "Confidential" on each page that contains
confidential or proprietary information. Notwithstanding anything to the contrary set
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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 Section, the terms
"proprietary or confidential" include, but are not limited to, information relating to the
Cable System design, customer lists, marketing plans, financial information unrelated to
the calculation of Agreement Fees, or rates pursuant to FCC rules or other information
that is reasonably determined by the Grantee to be competitively sensitive. If the
Grantor believes it must release any such confidential books and records in the course of
enforcing this Franchise, or for any other reason, it shall advise Grantee in advance so
that Grantee may take appropriate steps to protect its interests. If the Grantor receives a
demand from any Person for disclosure of any information designated by Grantee as
confidential, the Grantor shall, so far as consistent with Applicable Law, advise Grantee
and provide Grantee with a copy of any written request by the party demanding access to
such information within a reasonable time. Until otherwise ordered by a court or agency
of competent jurisdiction, the Grantor agrees that, to the extent permitted by State and
federal law, it shall deny access to any of Grantee's books and records marked
confidential as set forth above to any Person. Grantee shall reimburse the Grantor for all
reasonable costs and attorneys fees incurred in any legal proceedings pursued under this
Section.
7.3 Records Required
(A) Consistent with Section 7.1, Grantee shall at all times maintain:
(1) A complete set of maps showing the exact location of all Cable
System equipment and facilities in the Right -of -Way but excluding detail on
proprietary electronics contained therein and Subscriber drops. As -built maps
including proprietary electronics shall be made available for inspection by the
Grantor's authorized representative(s) or agent(s) during the course of technical
inspections as reasonably conducted by the Grantor. These maps shall be
certified as accurate by an appropriate representative of the Grantee;
(2) A copy of all FCC filings on behalf of Grantee, its parent
corporations or Affiliates that relate to the operation of the System in the
Franchise Area including any such filing that shows the Cable System or Grantee
not to be in compliance with FCC Standards or requirements;
(3) A list of Grantee's Cable Services, rates and Channel line-ups;
(4) A log of Cable Services added or dropped, Channel changes,
number of Subscribers added or terminated, all construction activity, and total
homes passed for the previous twelve (12) months; and
(5) A compilation of service outages within the Town of more than two
(2) hours.
7.4 Copies of Federal and State Reports
Upon reasonable written request, Grantee shall submit to Grantor 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
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agencies and other government bodies if such documents directly relate to the
operations of Grantee's System within the Franchise Area. Grantee shall submit such
documents to Grantor no later than thirty (30) days after receipt of Grantor's request.
Grantee shall not claim confidential, privileged or proprietary rights to such documents
unless under federal, State, or local law such documents have been determined to be
confidential by a court of competent jurisdiction, or a federal or State agency. With
respect to all other reports, documents and notifications provided to any federal, State
or local regulatory agency as a routine matter in the due course of operating Grantee's
System within the Franchise Area, Grantee shall make such documents available to
Grantor upon Grantor's written request.
7.5 Complaint File and Reports
(A) Grantee shall keep an accurate and comprehensive file of any escalated
complaints regarding the Cable System, in a manner consistent with the privacy rights of
Subscribers, and Grantee's actions in response to those complaints. For the purposes of
this Section, records of complaints relate only to complaints brought to Grantee's
attention by the Town and complaints made by Subscribers in the Town to the FCC or
consumer focused organizations like the Better Business Bureau. Consistent with
Section 7.1, this file shall be made available to the Grantor upon request.
(B) Within thirty (30) days of a written request, where the Town has reason to
believe there is an ongoing problem of widespread or repeated service interruptions or
other service call issues Grantee shall provide the Grantor a report containing the
following information from the preceding quarter:
(1) A summary of service calls, identifying the number and nature of
the requests and their disposition. For the purposes of this Section, "service calls"
means an in person visit to a Subscriber premise or some other part of the Cable
System to investigate, test, repair or evaluate any concern with the quality of the
Cable Services provided by Grantee, in response to a report or request of any
Person If Grantee is not able to provide such service call information reflecting
requests within the Town, it may provide the information on a regional basis,
together with a description of the complete boundaries of the region.
(2) A log of all service interruptions affecting multiple subscribers
lasting more than 2 hours if the outage occurs between 5 and 11 p.m., or more
than 4 hours for all other times, during the previous quarter; and
(3) A summary of customer complaints referred by the Grantor to
Grantee.
7.6 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 Grantor under this Agreement or
otherwise.
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SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide at least the following initial broad categories of programming to the
extent such categories are reasonably available.
(A) Educational programming;
(B) Colorado News, weather and information;
(C) National news, weather and information;
(D) Sports, including some variety of Colorado sports;
(E) General entertainment including movies;
(F) Children, family oriented;
(G) Arts, culture and performing arts;
(H) Foreign language programming;
(I) Science/documentary; and
(J) Public, Educational and Government Access, to the extent required by this
Franchise.
8.2 Deletion of Broad Programming Categories
(A) Consistent with Applicable Law, and except where the elimination of
a broad category of programming is not within Grantee's control, Grantee shall not
delete or so limit as to effectively delete any broad category of programming without
the prior written consent of the Town, such consent not to be unreasonably withheld.
(B) In the event that the Grantor makes an adverse determination with
respect to a request to eliminate any of the broad categories of programming
enumerated in Section 8.1, such determination shall be in writing, along with a
concise statement of the reasons therefore. In the event the Grantor fails to make a
determination within sixty (60) days after a receipt from Grantee, Grantee shall have
the right to eliminate the broad category of programming as requested.
(C) For purposes of this Section 8.2, the elimination of a broad category
of programming will be deemed not to be within Grantee's control where it is
occasioned by the interruption of cessation of a Channel's operations due to a
technical or other equipment failure not directly caused by Grantee or the refusal of
the vendor of a Channel to extend or renew an expiring agreement for the carriage of
such Channel, and where Grantee has no reasonable options from any other
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programming vendors to obtaining programming that would qualify to meet the
broad category of programming proposed for deletion.
8.3 Obscenity
Grantee shall comply with applicable laws related to obscenity.
8.4 Services for the Disabled
Grantee shall comply with the Americans With Disabilities Act and any amendments or
successor legislation thereto.
8.5 Parental Control Device
Upon request by any Subscriber, Grantee shall make available at its regular and
nondiscriminatory charge a parental control or lockout device, traps or filters to enable a
Subscriber to prohibit viewing of a particular cable service during periods selected by
the Subscriber. Grantee shall inform its Subscribers of the availability of the lockout
device at the time of their initial subscription and periodically thereafter.
8.6 Complementary Cable Service
The Grantee, upon request, shall provide without charge, a Standard Installation and one
outlet of Basic Service and Expanded Basic Service to those Town buildings now
existing or hereafter constructed within the Franchise Area provided that the buildings are
either owned and occupied or leased and occupied by the Grantor or other local
government, for any of its services or programs, fire station(s), police and sheriff
station(s), libraries and School(s) and including but not limited to, Town Hall, Fire
Department, Library District, Local Marketing District (Administrative Office), Senior
Center, Stanley Park (Administrative Building), Light & Power Shop, Fleet Building and
Water Shop, Visitor Center, Town Museum and Multiple Purpose Events Center and
provided further that they are already served or passed by the Grantee's Cable System and
are within 150 feet (provided that this does not require extensive boring or the use of
costly construction equipment) (a Standard Installation) of its Cable System, excluding
those buildings or portions of buildings that house or occupy prison/jail populations.
Grantee shall maintain complementary Basic and Expanded Basic Cable Service to one
outlet for each conference room that is currently served and those outlets currently
provided in Town buildings. The Cable Service described herein is a voluntary initiative
of Grantee.. Grantee must provide one hundred twenty (120) days' notice of any
location where it intends to cease the voluntary initiative and begin charging for service
or equipment, so that the Grantor may notify Grantee to suspend service or take such
other steps as may be appropriate under Applicable Law. The Cable Service provided
shall not be distributed beyond the originally installed outlet without authorization from
Grantee. Such installation shall not interfere with the operation of Grantee's Cable
System. In the case of leased facilities leased by the Town for administrative functions,
the recipient of service is responsible for securing approval for appropriate right of entry
suitable to the Grantee in its reasonable discretion. The Cable Service provided shall
only be used for lawful purposes, shall not be used for commercial purposes or to
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entertain public or private groups and shall not be located in public waiting areas. The
intent of the preceding provision is to ensure access to Cable Services for the benefit of
the Grantor and educational institutions. The Grantor shall take reasonable precautions
to prevent any use of the Grantee's Cable System in any manner that results in the
inappropriate use thereof or any loss or damage to the Cable System. To the extent not
inconsistent with other provisions in this Agreement, the Grantor shall hold the Grantee
harmless from any and all liability or claims arising out of the use of Cable Service at
Town facilities and educational facilities required by this Section. For new hookups, the
Grantee shall not be required to provide an outlet to such buildings where a non -
Standard Installation is required, unless the Grantor or building owner/occupant agrees
to pay the incremental cost of any necessary Cable System extension and non -Standard
Installation. If additional outlets of Cable Service are provided to such buildings beyond
those required herein, the building owner/occupant shall pay the usual installation and
service fees associated therewith. Grantor shall notify Grantee if the Town ceases to
occupy any facility or building where complimentary Cable Service is provided.
SECTION 9. EDUCATIONAL AND GOVERNMENTAL ACCESS
9.1 Access Channels
(A) Grantee shall continue at all times during the term of this Agreement to
make available, as part of the Basic Service package, at no additional charge, one
Channel for Access Channel Programming to be carried on the Cable System and
shared with Larimer County.
(B) Upon the Effective Date, Grantee shall have activated one (1) high
definition (HD) Access Channel, for which the Grantor may provide Access Channel
signals in HD format to the demarcation point at the designated point of origination for
the Access Channel. Upon the Effective Date, the HD Access Channel will be located
at channel 999.
(1) The Town shall be responsible for providing the HD Access
Channel signal in an HD digital format to the demarcation point at the designated
point of origination for the HD Access Channel. For purposes of this Agreement,
an HD signal refers to a television signal delivering picture resolution of either 720
or 1080, or such other resolution in this same range that Grantee utilizes for other
similar non -sport, non -movie programming channels on the Cable System,
whichever is greater.
(2) Grantee shall transport and distribute the HD Access Channel signal
on its Cable System and shall not unreasonably discriminate against HD Access
Channels with respect to accessibility, functionality and to the application of any
applicable Federal Communications Commission Rules & Regulations, including
without limitation Subpart K Channel signal standards. With respect to signal
quality, Grantee shall not be required to carry a HD Access Channel in a higher
quality format than that of the HD Access Channel signal delivered to Grantee, but
Grantee shall distribute the HD Access Channel signal without degradation.
Grantee shall carry all components of the HD Access Channel signals provided by
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the Designated Access Provider including, but not limited to, closed captioning,
stereo audio and other elements associated with the Programming.
(3) HD Access Channels may require Subscribers to buy or lease special
equipment, available to all Subscribers, and subscribe to those tiers of Cable
Service, upon which HD channels are made available. Grantee is not required to
provide free HD equipment to Subscribers, including complimentary government
and educational accounts, nor modify its equipment or pricing policies in any
manner.
(4) The Grantor or any Designated Access Provider is responsible for
acquiring all equipment necessary to produce programming in HD. The Grantor
shall be responsible for the costs of all transmission equipment, including HD
modulator and demodulator, and encoder or decoder equipment, and multiplex
equipment, required in order for Grantee to receive and distributed the HD Access
Channel signal, or for the cost of any resulting upgrades to the video return line.
The Grantor and Grantee agree that such expense of acquiring and installing the
transmission equipment or upgrades to the video return line qualifies as a capital
cost for PEG facilities within the meaning of Section 622(g)(2)(C) of the Cable Act
(47 U.S.C. 542(g)(2)(C)), and therefore is an appropriate use of the PEG Capital
fees provided for in this Agreement.
(5) There shall be no restriction on Grantee's technology used to deploy
and deliver HD signals so long as the requirements of this Agreement are otherwise
met. Grantee may implement HD carriage of the PEG channel in any manner
(including selection of compression, utilization of IP, and other processing
characteristics) that produces a signal quality for the consumer that is reasonably
comparable and functionally equivalent to similar commercial HD channels carried
on the Cable System. In the event Grantor believes that Grantee fails to meet this
standard, the Grantor will notify Grantee of such concern, and Grantee will respond
to any complaints in a timely manner.
(C) Permitted noncommercial uses of the Access Channel may include: (i) the
identification of financial supporters similar to what is provided on public broadcasting
stations; or (ii) the solicitation of financial support for the provision of Access
Programming for charitable, educational or governmental access purposes; or (iii)
programming offered by accredited, non-profit, educational institutions which may offer
telecourses over an access channel; or (iv) other permitted noncommercial uses allowed
by federal or State law.
(D) Additionally, Grantee shall make available at no charge one (1) additional
HD Channel to be triggered for PEG programming in accordance with Section 9.2 herein.
In the event Grantee makes any change in the System and related equipment and facilities
or in signal delivery technology, which change directly or indirectly affects the signal
quality or transmission of any Access Channel programming or services, the Grantee
shall, at its own expense, take necessary technical steps, acquire new equipment, and in
addition, provide the necessary assistance and foregoing equipment so that the Access
facilities and equipment may be used as intended to ensure that delivery of Access Video
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Programming signals is not diminished or adversely affected, including, among other
things, so that live and taped programming can be cablecast with as good or better signal
quality than existed prior to such change.
9.2 Triggers for Additional Access Channels
Pursuant to Section 9.1 (Access Channels), the Town may require Grantee to make
available one (1) additional activated HD Downstream Channel when the Access
Channel required by Section 9.1 is used for Locally Scheduled Original Programming
(excluding character generated and filler programming, e.g. 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 eight (8) week period, Grantee
shall make available, upon written request within six (6) months one additional Access
Channel for Access Programming purposes. Therefore, an average of six (6) hours of
Locally Scheduled Original Programming per day on a five day per week basis for an
eight (8) consecutive week period is required to trigger use of an additional Access
Channel. The programming of an additional Access Channel required herein must
contain distinct and non -repetitive programming of the other Access Channel.
9.3 Management and Control of Access Channels
Grantor 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 Grantor or its designee may formulate rules for the operation of
the Access Channels, consistent with this Agreement. Nothing herein shall prohibit the
Grantor from authorizing itself to be a Designated Access Provider or from assigning
several Designated Access Providers with similar types of Governmental or Educational
programming to share Access Channel space consistent with local, State and Federal
law.
9.4 Underutilized Access Channels
Grantee and the Grantor agree that it is their mutual goal to fully and efficiently use the
Channel capacity of the Cable System, which may include allowing the Grantee to use
underutilized time on Access Channels. If Grantee believes that any Access Channel has
underutilized time, Grantee may file a request with the Grantor to use that time. The
Grantor shall render a decision regarding the matter within sixty (60) days of receiving
the request. Should the Grantor find that the Access Channel or portion of the Access
Channel may be used by the Grantee, then Grantee may begin using such time ninety (90)
days after receipt of the decision. If Grantor wants the time back on the Channel and has
a plan to use it, Grantee shall, within sixty (60) days' notice of receiving the request,
return the time back to Grantor.
9.5 Access Channel Identification/Location/Relocation
Grantee will use commercially reasonable efforts to minimize the movement of Access
Channel assignments. Grantee shall provide to the Grantor a minimum of sixty (60)
days' notice, and use commercially reasonable efforts to provide ninety (90) days'
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notice, prior to any relocation of its Access Channels, unless the change is required by
federal law, in which case Grantee shall give the Grantor the maximum notice possible.
If the change is not required by Federal Law, Grantee shall place notice of the change on
its regular monthly schedule. If a PEG Channel is going to be relocated or moved,
Grantee will make commercially reasonable efforts to relocate it within the same
channel grouping as broadcast channels.
In addition, Grantee shall provide Grantor with a total not to exceed one hundred (100)
thirty second (:30) promotional spots ("Spots") on the System serving the Franchise
Area during a thirty (30) day period prior to the date of the change in the location of the
Access Channels. The number of Spots to be provided under this Section shall be
prorated with respect to any partial period less than thirty (30) days. Grantor 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
Channels and the Channel relocations only for the sole purpose of notifying Subscribers
of the change in Channel designations, and shall not include any mention of third party or
other sponsors. Placement of the Spots shall be made by the Grantee on a run -of schedule
basis. All Spots are subject to Grantee's approval; such approval not to be unreasonably
withheld or delayed. Any new Channel designations for the Access Channels provided
pursuant to this Agreement shall be in full compliance with FCC signal quality and proof -
of -performance standards.
9.6 Access Interconnections
(A) The Access Channels required by this Agreement shall be
Interconnected with the Access Channels of geographically adjacent Cable Systems that
are owned and operated by Grantee or an Affiliate of Grantee but not with the
nonadjacent cable systems of Grantee. Grantee shall take all necessary technical steps to
ensure that downstream transmissions provide an adequate signal quality in accordance
with FCC regulations. Nothing in this section alters Grantee's Channel obligations for
Access programming delivered to Subscribers within the Franchise Area. Unless the
Grantor directs otherwise, or an affected jurisdiction objects, any Interconnection shall
allow Access Channels to operate without disruption or delay across and within the
Franchise Area boundaries.
(B) It is not the Grantee's responsibility to ensure that the signals provided
to the Interconnection by unaffiliated Interconnecting System meet industry standards.
(C) If any equipment and construction costs are borne by Grantee in
connection with the obligation to provide for Access Channel Interconnection the pro rata
share of same shall be considered a capital cost. Grantor agrees that such cost is an
"external cost" as such term is used in 47 C.F.R. Section 76.922(f) on the date of this
Agreement, and as such, the cost is permitted under federal law and regulation to be
passed through to Subscribers, to the extent and in a manner provided for in federal
regulations governing the same.
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9.7 Access Channels On Lowest Tier
All Access Channels provided to Subscribers under this Agreement shall be included by
Grantee, without limitation, on the lowest Tier of Cable Service offered by Grantee on
its System.
9.8 Technical Quality
Grantee shall maintain all upstream and downstream Access services and Channels on
its side of the demarcation point at the same level of technical quality and reliability
required by this Franchise Agreement and all other applicable laws, rules and regulations
for Residential subscriber Channels. Grantee shall provide routine maintenance for all
transmission equipment on its side of the demarcation point, including modulators,
decoders, multiplex equipment, and associated cable and equipment necessary to carry a
quality signal to and from Grantor's facilities for the Access Channels provided under
this Franchise Agreement. Grantee shall also provide, if requested in advance by the
Grantor, advice and technical expertise regarding the proper operation and maintenance
of transmission equipment on the Grantor's side of the demarcation point.
9.9 Technical Quality
The Grantee shall maintain all Access channels and Interconnections as required by FCC
standards and consistent with the quality and level with Grantee's other Basic Service
Channels to the extent it is within the control of the Grantee. The Grantee shall provide
routine maintenance and shall repair and replace, if necessary, any of Grantee's
equipment required to carry a quality signal from the Access facilities provided under
this Agreement to Subscribers.
9.10 Return Lines
(A) Grantee shall continue to maintain a fiber-optic return line from the Town
Hall to Grantee's Hub so that there can be delivery of Access programming to
Subscribers. All other return line construction costs (other than maintaining the return line
which is currently in place) shall be paid by the Grantor at a cost mutually agreed to
between the Grantor and Grantee and shall be completed within six (6) months of request.
Grantee may require that a reasonable deposit of the estimated project cost be paid in
advance. The Parties agree that there is at present no requirement for any upgrades
necessary to the functioning of the HD Channel for the Grantor.
(B) After satisfactory completion of work requested by the Grantor for which
the Grantor is to reimburse the Grantee and upon submission by Grantee, in such form as
may be requested by the Grantor, of a proper invoice for payment of the cost reasonably
incurred and accompanied by such evidence in support thereof as may be reasonably
required by the Grantor, the Grantor agrees to make payment for the cost reasonably
incurred up to the estimated cost for the work; provided, however, that all payments
shall be subject to adjustment for any amount found upon audit or otherwise to have
been improperly invoiced. All work shall be performed in a cost-effective manner to
minimize the costs to the Grantor.
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9.11 Support for Access Capital Costs
During the term of this Agreement, Grantee shall provide to the Grantor a grant
of $0.50 per subscriber per month (the "Access Contribution") to be used solely
for capital costs related to Public, Educational and Governmental Access, or as
may be permitted by Applicable Law. Grantee shall make Access Contribution
payments quarterly, following the effective date of this Franchise for the
preceding quarter ending March 31, June 30, September 30, and December 31.
Each payment shall be due and payable no later than forty-five (45) days
following the end of the quarter. The Grantor, or its Designated Access Provider,
shall have sole discretion to allocate the expenditure of such payments, so long as
such payments are used for capital costs related to Access Programming.
Grantor shall provide Grantee, upon request, with a reasonable accounting, nor
more than annually, of the distribution of, or expenditures made with, the Access
Contribution.
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1 Construction
(A) Subject to Applicable Law, regulations and ordinances of Grantor and
the provisions of this Agreement, Grantee shall perform all maintenance, construction,
repair, upgrade and reconstruction necessary in the Rights -of -Way for the operation of
its System. All construction and maintenance of any of Grantee's facilities within
Rights -of -Way shall, regardless of who performs the construction, be and remain
Grantee's responsibility. Grantee shall apply for, and obtain, all permits necessary for
construction or installation of any facilities and for excavating and laying any facilities
within the Rights -of -Way. Grantee shall pay all applicable fees upon issuance of the
requisite construction permits by Grantor to Grantee.
(B) Prior to doing any work in the Right -of Way, Grantee shall apply for, and
obtain, appropriate permits from the Grantor. As part of the permitting process, the
Grantor 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, the protection of the public, and the continuity of pedestrian or
vehicular traffic. Such conditions may also include the provision of a construction
schedule and maps showing the location of the facilities to be installed in the Right -of -
Way. Grantee shall pay all applicable fees for the requisite Grantor permits received by
Grantee.
(C) In the event that emergency repairs are necessary, Grantee shall
immediately notify Grantor of the need for such repairs after such repairs are
undertaken. Grantee may initiate such emergency repairs, and shall apply for
appropriate permits within forty-eight (48) hours after discovery of the emergency.
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10.2 Location of Facilities
Prior to doing any work in the Right -of -Way, Grantee shall give appropriate notices to
the Grantor and to the notification association established in C.R.S. Section 9-1.5-105,
as such may be amended from time to time.
(A) Within forty-eight (48) hours after any Grantor bureau or franchisee,
licensee or permittee notifies Grantee of a proposed Right -of -Way excavation, Grantee
shall, at Grantee's expense, mark on the surface all of its located underground facilities
within the area of the proposed excavation;
(B) Notify the excavator of any unlocated underground facilities in the area of
the proposed excavation; or
(C) Notify the excavator that Grantee does not have any underground
facilities in the vicinity of the proposed excavation.
10.3 Restoration of Rights -of -Way
(A) Whenever Grantee disturbs the surface of any Rights -of -Way for any
purpose, Grantee shall promptly restore the Rights -of -Way to a condition reasonably
comparable to the condition of the Rights -of -Way immediately prior to such
disturbance normal wear and tear 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 construction permit.
(B) If Grantee excavates the surface of any Rights -of -Way, Grantee shall be
responsible for restoration in accordance with applicable regulations regarding the
Rights -of -Way and its surface within the area affected by the excavation. Grantor may,
after providing reasonable notice to Grantee and giving Grantee sufficient opportunity
to fix the surface itself, refill or repave any opening made by Grantee in the Rights -of -
Way, and the reasonable expense thereof shall be paid by Grantee. Grantor may, after
providing reasonable notice to Grantee, and giving Grantee sufficient opportunity to fix
the work, remove and repair any work done by Grantee that, in the determination of
Grantor, does not conform to applicable code. 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 safeguarded for the prevention of
accidents. Grantee shall warrant any restoration work performed by or for Grantee in
the Right -of -Way and all of Grantee's work under this Agreement, and this Section in
particular, shall be done in compliance with Applicable Law.
10.4 Maintenance and Workmanship
(A) Grantee's System shall be constructed and maintained in such manner as
not to interfere with sewers, Sewer Districts, water pipes or any other property of
Grantor, or with any other pipes, wires, conduits, pedestals, structures or other facilities
that may have been laid in Rights -of -Way by, or under, Grantor's authority.
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(B) Grantee shall provide and use any equipment and appliances necessary
to control and carry Grantee's signals so as to prevent damage to Grantor's property or
property belonging to any Person. Grantee, at its own expense, shall repair, renew,
change and improve its facilities to keep them in good repair and safe and presentable
condition.
(C) The Grantee's transmission and distribution System, wires and
appurtenances shall be located, erected and maintained so as not to endanger or
interfere with the lives of Persons, or to unnecessarily hinder or obstruct the free use of
Rights -of -Way, alleys, bridges or other public property.
(D) Grantee will maintain membership in good standing with the Utility
Notification Center of Colorado, or other similar or successor organization designated
to coordinate underground equipment locations and installations. Grantee shall abide
by Colorado State's "Underground Utilities" statutes and will further comply with and
adhere to local procedures, customs and practices relating to the one call locator
service program.
(E) Grantee shall give notice to private property owners of
construction work in adjacent Rights -of -Way in accordance with Applicable
Law. Grantee shall protect private property from damage. If damage occurs as
a result of Grantee's work, the Grantee shall promptly notify the property
owner within twenty-four (24) hours in writing, and shall take reasonable steps
to repair and restore any such damage.
10.5 Acquisition of Facilities
Upon Grantee's acquisition of facilities in any Rights -of -Way, or upon the addition or
annexation to the Town of any area in which Grantee owns or operates any facility,
Grantee shall, at Grantor's written request, submit to Grantor a statement describing all
facilities involved, whether authorized by agreement, permit, or other prior right, and
specifying the location of all such facilities to the extent Grantee has possession of such
information. Such facilities shall immediately be subject to the terms of this Agreement
to the extent that such facilities are consistent with the terms of this Agreement or can
be made consistent within a reasonable time.
10.6 Reservation of Rights -of -Way
(A) Nothing in this Agreement shall prevent Grantor 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.
(B) Movement of System For and By Grantor. The Grantor 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 Grantor
in the event of an emergency or when necessary to protect or further the health, safety or
welfare of the general public and such work shall be performed at Grantee's expense
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consistent with applicable law. Except during an emergency, Grantor shall provide
reasonable notice to Grantee, not to be less than fifteen (15) business days and allow
Grantee the opportunity to perform such work.
Following notice by the Grantor, Grantee shall remove, replace, relocate, modify or
disconnect any of its facilities or equipment within any Right -of -Way, or on any other
property of the Grantor, except that the Grantor shall provide at least ninety (90) days'
written notice of any major capital improvement project that would require the removal,
relocation, replacement, modification or disconnection of Grantee's facilities or
equipment. If the Grantee fails to complete this work within the time prescribed and to
the Grantor's reasonable satisfaction, the Grantor may cause such work to be done and
bill the cost of the work to the Grantee. Grantee shall remit payment to Grantor within
thirty (30) days of receipt of an itemized list of those costs. If the Town requires
Grantee to relocate its facilities located within the Rights -of -Way, the Town shall make
a reasonable effort to provide Grantee with an alternate location in the Rights -of -Way.
If funds are generally made available to users of the Rights -of -Way for such relocation,
Grantee shall be entitled to seek its pro rata share of such funds.
(C) Movement for Other Permittees. At the request of any Person holding a
valid permit and upon reasonable advance notice, Grantee shall temporarily raise, lower
or remove its wires as necessary to permit the moving of a building, vehicle, equipment
or other item. The cost of such temporary change must be paid by the permit holder, and
Grantee may require the estimated payment in advance.
10.7 Rights -of -Way Vacation
If any Rights -of -Way or portion thereof used by Grantee is vacated by Grantor during
the term of this Agreement, unless Grantor specifically reserves to Grantee the right to
continue the use of vacated Rights -of -Way, Grantee shall, without delay or expense to
Grantor, remove its facilities from such Rights -of -Way, and restore, repair or reconstruct
the Rights -of -Way where such removal has occurred. Grantor shall make a reasonable
effort to provide Grantee with an alternate location within the Rights -of -Way. In the
event of failure, neglect or refusal of Grantee, after thirty (30) days' written notice by
Grantor, to restore, repair or reconstruct such Rights -of -Way, Grantor may do such work
or cause it to be done, and the reasonable cost thereof shall be paid by Grantee within
thirty (30) days of receipt of an invoice and documentation.
If Grantor has access to funds that are made available to any Person using the Rights -of -
Way for the purpose of deferring the cost of any of the foregoing, and if Grantor
otherwise has authorization to so utilize the funds for this purpose, the Grantor shall
reimburse the Grantee in the same manner in which other Persons affected by the
requirement are reimbursed.
10.8 Removal of Discontinued Facilities
Whenever Grantee intends to discontinue using any facility within the Rights -of -Way,
Grantee shall submit for Grantor a complete description of the facility and the date on
which Grantee intends to discontinue using the facility. Grantee shall remove the facility
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or request that Grantor allow it to remain in place. Notwithstanding Grantee's request that
any such facility remain in place, Grantor may require Grantee to remove the facility
from the Rights of Way or modify the facility to protect the public health, welfare, safety
and convenience, or otherwise serve the public interest. Grantor may require Grantee to
perform a combination of modification and removal of the facility. Grantee shall
complete such removal or modification in accordance with a schedule reasonably set by
Grantor. Until such time as Grantee removes or modifies the facility as reasonably
directed by Grantor, or until the rights to and responsibility for the facility are accepted
by another Person having authority to construct and maintain such facility, Grantee shall
be responsible for all necessary repairs and relocations of the facility, as well as
maintenance of the Rights -of -Way, and shall retain all liability for such facilities in the
same manner and degree as if the facility were in active use. If Grantee does not remove
the facilities as reasonably directed by Grantor, Grantor may effectuate the removal and
Grantee shall be liable to Grantor for all costs incurred in connection with such removal.
If Grantee has requested Grantor's approval and received written authorization from
Grantor to abandon its facilities, Grantor may choose to use such facilities for any
purpose whatsoever including, but not limited to, Access Channel purposes. If Grantor
chooses to utilize any such abandoned facilities, Grantee's liability for those facilities
shall cease.
10.9 Hazardous Substances
(A) Grantee shall comply with all Applicable Laws concerning hazardous
substance.
(B) Grantor may inspect Grantee's facilities in Rights -of -Way to determine if
any release of hazardous substances has occurred, or may occur, from or related to
Grantee's System. In removing or modifying Grantee's facilities as provided in this
Agreement, Grantee shall also remove all residue of hazardous substances related thereto.
10.10 Undergrounding of Cable
(A) When the general ordinances, resolutions, regulations or rules of the
Grantor or applicable State or federal law require all electric, telephone or other above-
ground utilities to relocate facilities underground, Grantee's Cable System shall be placed
underground at Grantee's expense unless funding is generally available for such
relocation to all users of the Rights -of -Way. Placing facilities underground does not
preclude the use of ground -mounted appurtenances.
(B) Where electric and telephone utility wiring are installed underground at
the time of System construction and when all such wiring is subsequently placed
underground, all System lines, wiring and equipment shall also be placed underground
by Grantee with other wireline service concurrently unless it is not feasible to
underground due to rocky soil (which shall be in the Town's reasonable determination)
or within a reasonable time thereafter at no expense to the Grantor unless otherwise
allowed by Applicable Law and/or funding is generally available for such relocation to
users of the Rights -of -Way. Related System equipment, such as pedestals, power
supplies and other ground -mounted appurtenances must be placed in accordance with
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applicable Town Code requirements and rules. In areas where either electric or
telephone utility wiring are aerial, the Grantee may install aerial cable, except when a
property owner or resident requests underground installation and agrees to bear the
additional cost in excess of aerial installation. Nothing contained in this subsection
shall require Grantee to construct, operate and maintain underground any ground -
mounted appurtenances including, but not limited to pedestals, power supplies, etc.
(C) The Grantee shall utilize existing poles and conduit wherever
commercially reasonable.
(D) This Agreement does not grant, give or convey to the Grantee the right
or privilege to install its facilities in any manner on specific utility poles or equipment
of the Grantor or any other Person. Terms, compensation for and use of Town Poles
shall be governed by a separate Pole Attachment Agreement between the Town and
Grantee.
(E) 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 all utilities are being converted to underground facilities. To the extent technically
feasible, relocation of overhead facilities underground shall be completed within ninety
(90) days (or such other period of time provided by Town Code) in areas where electric
or telephone utilities are being converted to underground facilities.
10.12 Construction and Use of Poles
Whenever feasible, Grantee shall use existing poles when the installation of facilities
above -ground is permitted. In the event Grantee cannot obtain the necessary poles and
related facilities pursuant to a pole attachment agreement, and only in such event, then it
shall be lawful for Grantee to make all needed excavations in the streets for the purpose of
placing, erecting, laying, maintaining, repairing and removing poles, conduits, supports for
wires and conductors, and any other facility needed for the maintenance or extension of
Grantee's System. All poles of Grantee shall be erected in locations approved by the
Grantor, and each pole shall be set whenever practicable at an extension lot line. Grantor
shall have the right to require Grantee to change the location of any pole within Rights -of -
Way when, in the opinion of Grantor, the public health, safety or welfare requires such
change, and the expense thereof shall be paid by Grantee. Terms, compensation for and
use of Town Poles shall be governed by a separate Pole Attachment Agreement between
the Town and Grantee. Any dispute between a private property owner and the Grantee
regarding the proposed location of a pole shall be resolved between such private property
owner and Grantee and shall not involve the Grantor.
10.13 Tree Trimming
Upon obtaining a written permit from Grantor, if such a permit is required, Grantee
may prune or cause to be pruned, using proper pruning practices in accordance with
such permit, any tree or other natural growth in the Rights -of -Way that interferes with
the System.
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10.14 Standards
(A) All work authorized and required hereunder shall be done in a safe,
thorough and workmanlike manner. The Grantee must comply with all federal, State and
local safety requirements, rules, regulations, laws and practices, and employ all
necessary devices as required by applicable law during construction, operation and
repair of its System. By way of illustration and not limitation, the Grantee must comply
with the National Electric Code, National Electrical Safety Code and Occupational
Safety and Health Administration (OSHA) Standards.
(B) Grantee shall ensure that all cable drops are properly bonded and
grounded at the home, consistent with applicable code requirements. All non-
conforming or nonperforming cable drops shall be replaced by Grantee as necessary.
(C) All installations of equipment shall be permanent in nature, durable and
installed in accordance with good engineering practices and of sufficient height to comply
with all Applicable Law so as not to interfere in any manner with the right of the public or
individual property owner, and shall not interfere with the travel and use of public places
by the public during the construction, repair, operation or removal thereof, and shall not
obstruct or impede traffic.
(D) In the maintenance and operation of its System in Rights -of -Way and
other public places, and in the course of any new construction or addition to its facilities,
the Grantee shall proceed so as to cause minimal inconvenience to the general public; any
opening or obstruction in the Rights -of -Way or other public places made by the Grantee
in the course of its operations shall be guarded and protected at all times by the placement
of adequate barriers, fences or boarding, the bounds of which, during periods of dusk and
darkness, shall be clearly marked.
10.15 Stop Work
On notice from Grantor that any work is being conducted contrary to the provisions of
this Agreement, or in an unsafe or dangerous manner as determined by Grantor, or in
violation of the terms of any Applicable Law, the work may immediately be stopped by
Grantor. 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.
10.16 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
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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 are familiar with the requirements of this
Agreement and other Applicable Law governing the work performed by them.
10.17 Safety
Under any circumstances regarding operation or use of the System that poses or involves
public health, safety or welfare hazards, peril or danger or property hazards, Grantee shall
take steps and act expeditiously to rectify such situations until conclusion.
10.18 Joint Trenching/Boring
To the extent it is technically and economically feasible, Grantee shall joint trench or
share bores or cuts and work with other providers (such as, but not limited to,
telecommunications, gas, sewer, water and electric companies), licensees, permittees so
as to reduce the number of right-of-way cuts within the Town.
10.19 GIS Mapping
Grantee shall within a reasonable timeframe comply with any ordinances, rules and
regulations of the Town regarding geographic information systems mapping for users of
the rights -of -way and upon thirty (30) days written request, provide electronic copies of
route locations from Assessor's Maps showing the location of System lines and facilities
in the Rights -of -Way, but excluding detail on proprietary electronics or other proprietary
information related to Grantee's specific design of the System. It is understood that this
requirement is for Grantee to provide information which is already available to it and not
new information which would be otherwise necessary to be generated by Grantee.
SECTION 11. SYSTEM DESIGN
(A) The Cable System is capable of delivering signals that meet FCC technical
quality standards regardless 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 term of the Agreement.
(B) Subscriber Network. Grantee's Cable System shall be equivalent to or
exceed technical characteristics of an HFC 860 MHz Cable System All or part of the
Cable System shall be capable of delivering at least two hundred (200) Channels of
Video Programming services to Subscribers, and 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.
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(C) Equipment must be installed so that all closed -captioned programming
received by the Cable System shall include the closed caption signal so long as the
closed caption signal is provided consistent with FCC standards.
(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 12. TECHNICAL STANDARDS
12.1 Technical Performance
The technical performance of the Cable System shall meet all applicable technical
standards authorized or required by law, including, without limitation, FCC technical
standards, as they may be amended from time to time, regardless of the transmission
technology utilized. The Town shall have the full authority permitted by Applicable
Law to enforce compliance with these technical standards.
12.2 Inspection of Construction
Grantor shall have the right to inspect any construction or installation work performed
under this Agreement and to charge inspection fees therefor. If an unsafe condition is
found to exist, the Grantor, in addition to taking any other action permitted under
applicable law, may order Grantee, in writing, to make the necessary repairs and
alterations specified therein forthwith to correct the unsafe condition within the time
specified by Grantor. The Grantor has the right to correct, inspect, administer and repair
the unsafe condition if Grantee fails to do so within the time specified, and to charge
Grantee the reasonable cost therefore. In such event, the Grantor shall not be liable for
any damage to any portion of Grantee's Cable System unless the Grantor acted in a
negligent manner and Grantor's liability is only to the extent permitted by State law.
12.3 Cable System Performance Testing
(A) Grantee shall, at its expense, perform all tests on its Cable System
required by the FCC and shall maintain written records of its test results in accordance
with applicable law. Upon advance request, all FCC required technical performance tests
may be witnessed by representatives of the Town. The expense of the Town providing its
representatives to witness the test shall be borne by the Town. Copies of such test results
will be provided to the Town upon request.
(B) Upon request, Grantee will notify the Town before any required
technical proof -of -performance or other testing occurs.
(C) Grantee shall promptly take such measures as are necessary and
diligently continue the same until completion in order to correct any performance
deficiencies fully and to prevent their recurrence. Grantee's failure to correct deficiencies
identified through this testing process shall be a violation of this Agreement. Sites shall
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be re -tested following correction until correction has been confirmed and satisfactory
results are obtained.
12.4 Additional Tests
(A) Where there exists an ongoing pattern of poor technical performance or
quality on the Cable System, then upon thirty (30) days prior written notice, the Town
may require Grantee to conduct proof of performance tests on test points located within
the Town and provide results of such tests within thirty (30) days after completion
thereof. This testing requirement may only be triggered by the Town once during each
twelve (12) month period.
(B) Grantee shall cooperate with the Town in performing the testing
described in Subsection (A) and shall prepare the results and a report if requested, within
thirty (30) days after testing. Such report shall include the following information:
(1) the nature of the complaint or problem that precipitated the special
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 13. SERVICE EXTENSION
13.1 Service Availability
(A) In general, except as otherwise provided herein and subject to receiving
permits from the Town, 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, receipt of a written request by Grantee or receipt
by Grantee of a verified verbal request. Grantee shall provide such service:
(1) With no line extension charge except as specifically
authorized elsewhere in this Agreement.
(2) At a non-discriminatory installation charge for a standard
installation, consisting of a one hundred twenty five (125) foot aerial drop or sixty
(60) feet for an underground drop connecting to the exterior demarcation point for
Subscribers, with additional charges for non-standard installations computed
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according to a non-discriminatory methodology for such installations, adopted by
Grantee and provided upon request in writing to the Town.
(3) At non-discriminatory monthly rates for all Residential
Subscribers, excepting commercial Customers, MDU Bulk Customers and
other lawful exceptions to uniform pricing.
(4) Notwithstanding any other provision of this Agreement, the
Grantee shall have the right, but shall have no obligation (except as provided in
subsection (B) below) to extend the Cable System into any portion of the
Franchise Area where Grantee is not providing Cable Service on the effective
date of this Agreement, or where another cable operator is providing Cable
Service, or into any area that is not contiguous to the present service area of the
Grantee. Additionally, Grantee shall not be obligated to provide Cable Service to
any area that is commercially unreasonable.
(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 distribution cable to connection of service to
Customers, or a density of less than fifteen (15) residences (excluding those residences
that have direct broadcast satellite video service and those where access easements cannot
be obtained on a reasonable basis from third parties) per 5280 cable -bearing strand feet of
trunk or distribution cable, service may be made available on the basis of a capital
contribution in aid of construction, including cost of material, labor and easements. For the
purpose of determining the amount of capital contribution in aid of construction to be
borne by the Grantee and Customers in the area in which service may be expanded, the
Grantee will contribute an amount equal to the construction and other costs per mile,
multiplied by a fraction whose numerator equals the actual number of residences per 5280
cable -bearing strand feet of its trunk or distribution cable and whose denominator equals
fifteen (15). Customers who request service hereunder will bear the remainder of the
construction and other costs on a pro rata basis. The Grantee may require that the payment
of the capital contribution in aid of construction borne by such potential Customers be
paid in advance. The density requirement contained herein shall also apply to annexed
and newly developed areas within the Town as well.
(C) The Grantee shall provide Cable Service to Multiple Dwelling Units in
accordance with an agreement with the property owner or owners, this Agreement and
all applicable laws.
SECTION 14. STANDBY POWER AND EMERGENCY ALERT SYSTEM
14.1 Standby Power
Grantee shall provide standby power generating capacity at the System Headend
capable of providing at least twelve (12) hours of emergency operation. Grantee shall
maintain standby power system supplies throughout the System rated for at least four
(4) hours duration.
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14.2 Emergency Alert Capability
(A) Grantee shall provide an operating Emergency Alert System ("EAS") in
compliance with FCC standards throughout the term of this Agreement. Given the
possibility of fire, flood or other natural disaster, the Town shall have the ability to
remotely phone in to exercise override capability (using a passcode or password) and
send emergency messages over and on the EAS System since it would impact only the
Estes Park area and Larimer County near Estes Park and not other jurisdictions. The
Grantee shall pay for the cost of the EAS equipment in the Headend and the Grantor shall
pay for the monthly cost of one standard phone line.
(B) Grantee shall ensure that the EAS system is functioning properly at all
times. It will test the EAS system periodically, in accordance with FCC regulations.
Upon request, Grantee will advise the Town of the testing schedule so that the Town
may be present for the tests.
SECTION 15. AGREEMENT BREACHES; TERMINATION OF AGREEMENT
15.1 Procedure for Remedying Agreement Violations
(A) If Grantor believes that Grantee has failed to perform any material
obligation under this Agreement or has failed to perform in a timely manner, Grantor
shall first informally discuss the matter with Grantee. If this discussion does not lead to
resolution of the problem, the Grantor shall notify Grantee in writing, stating with
reasonable specificity, the nature of the alleged default. Grantee shall have thirty (30)
days from the receipt of such notice to:
(1) Respond to Grantor, contesting Grantor's assertion that a default
has occurred;
(2) Cure the default; or
(3) Notify Grantor that Grantee cannot cure the default within the thirty (30)
days, because of the nature of the default. In the event the default cannot be cured
within thirty (30) days, Grantee shall promptly take all reasonable steps to cure the
default and notify Grantor in writing and in detail as to the exact steps that will be
taken and the projected completion date. Upon five (5) business days' prior written
notice, either Grantor or Grantee may call an informal meeting to discuss the
alleged default.
(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, each party reserves its rights to pursue any legal or equitable remedy available
under this Agreement or Applicable Law.
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15.2 Removal
(A) In the event of lawful termination, expiration, revocation or lawful
nonrenewal of this Agreement, and after all appeals from any judicial determination are
exhausted and final, Grantor may order the removal of the System facilities from the
Franchise Area at Grantee's sole expense within a reasonable period of time (not to
exceed 180 days) as determined by Grantor. 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 a condition
reasonably comparable to the condition as that prevailing immediately prior to
Grantee's removal of its equipment.
(B) If Grantee fails to complete any required removal to the satisfaction of
Grantor, Grantor may after written notice to Grantee cause the work to be done, and
Grantee shall reimburse Grantor for the reasonable costs incurred within thirty (30)
days after receipt of an itemized list of Grantor's expenses and costs, or Grantor may
recover its expenses and costs from the security, or pursue any other judicial remedies
for the collection thereof.
SECTION 16. ABANDONMENT
If the Grantee abandons its System during the Agreement term, or fails to operate its
System in accordance with any duty to provide continuous service to Subscribers or the
Town or Schools as required herein, the provisions of this Agreement and the Town Code
shall apply and the Grantor, at its option, may operate the System or; designate another
entity to operate the System temporarily until the Grantee restores service under
conditions acceptable to the Grantor, or until the Agreement is revoked and a new cable
operator is selected by the Grantor. If the Grantor designates another entity to operate the
System, the Grantee shall reimburse the Grantor for all reasonable costs, expenses and
damages incurred, including reasonable attorney fees, court expenses and attributed
expenses for work conducted by Grantor's staff or authorized agents.
SECTION 17. AGREEMENT RENEWAL
(A) The Grantor and Grantee agree that any proceedings undertaken by Grantor
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/or superseded by the provisions of
any subsequent provision of Federal law.
(B) In addition to the procedures set forth in said Section 626(a), Grantor agrees
to notify Grantee of the completion of its assessments regarding the identification of future
cable -related community needs and interests, as well as the past performance of Grantee under
the then current Agreement term. Notwithstanding anything to the contrary set forth herein,
Grantee and Grantor agree that at any time during the term of the then current Agreement,
while affording the public adequate notice and opportunity for comment, Grantor and Grantee
may agree to undertake and finalize negotiations regarding renewal of the then current
Agreement and Grantor may grant a renewal thereof. Grantee and Grantor consider the terms
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set forth in this subsection to be consistent with the express provisions of Section 626 of the
Cable Act.
SECTION 18. TRANSFER OF OWNERSHIP OR CONTROL
18.1 The Cable System and this Agreement shall not be sold, assigned, transferred,
leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary
sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right,
interest or property therein pass to or vest in any Person or entity without the prior written
consent of the Grantor, which consent shall be by the Town Board, acting by ordinance or
resolution which consent shall not be unreasonably withheld.
18.2 The Grantee shall promptly notify the Grantor of any actual or proposed change
in, or transfer of, or acquisition by any other party of control of the Grantee. The word
"control" as used herein is not limited to majority stockholders but includes actual
working control in whatever manner exercised. Every change, transfer or acquisition of
control of the Grantee shall make this Agreement subject to cancellation unless and
until the Grantor shall have consented in writing thereto and Grantor's consent shall not
be unreasonably withheld.
18.3 The parties to the sale or transfer shall make a written request to the Grantor
for its approval of a sale or transfer or change in control and shall furnish all
information required by law and this Agreement.
18.4 In seeking the Grantor's consent to any change in ownership or control, the
proposed transferee or controlling entity shall indicate whether it:
(A) Has ever been convicted or held liable for acts involving deceit including
any violation of federal, State or local law or regulations, or is currently under an
indictment, investigation or complaint charging such acts;
(B) Has ever had a judgment in an action for fraud, deceit, or misrepresentation
entered against the proposed transferee by any court of competent jurisdiction;
(C) Has pending any material legal claim, lawsuit, or administrative proceeding
arising out of or involving a Cable System; Is financially solvent, by submitting
financial data including financial statements that are audited by a certified public
accountant who may also be an officer of the transferee or controlling entity; and
(D) Has the financial, legal and technical capability to enable it to maintain
and operate the Cable System for the remaining term of the Agreement.
18.5 The Grantor shall act by ordinance or resolution on the request within one hundred
twenty (120) days of the request provided it has received all information required by
Applicable Law, provided it has received a complete application and any other relevant
information timely requested by Grantor. Subject to the foregoing, if the Grantor fails to
render a final decision on the request within one hundred twenty (120) days, such request
shall be deemed granted unless there is a mutually agreed to extension of time.
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18.6 Within thirty (30) days of any transfer or sale or change in control, if approved or
deemed granted by the Grantor, Grantee shall file with the Grantor a redacted copy of the
deed, agreement, lease or other written instrument evidencing such sale or transfer of
ownership or control, certified and sworn to as correct by Grantee and the transferee or
controlling entity, and the transferee or controlling entity shall file its written acceptance
agreeing to be bound by all of the provisions of this Agreement, subject to applicable
law. In the event of a change in control, in which the Grantee is not replaced by another
entity, the Grantee will continue to be bound by all of the provisions of the Agreement,
subject to Applicable Law, and will not be required to file an additional written
acceptance. The approval of any change in control shall not be deemed to waive any
rights of Grantor to subsequently enforce noncompliance issues relating to this
Agreement. For purposes herein to the extent that a change of control involves an entity
that was not an Affiliate prior to the contemplated transaction, the Town's consent shall
be required for such change in control.
18.7 In reviewing a request for sale or transfer or change in control, the Grantor may
inquire into the legal, technical and financial qualifications of the prospective controlling
party or transferee, and Grantee shall assist the Grantor in so inquiring. The Grantor may
condition said sale or transfer or change in control upon such terms and conditions as it
deems reasonably appropriate consistent with applicable law, provided, however, any such
terms and conditions so attached shall be related to the legal, technical and financial
qualifications of the prospective controlling party or transferee and to the resolution of
outstanding and unresolved issues of noncompliance with the terms and conditions of this
Agreement by Grantee.
18.8 Notwithstanding anything to the contrary in this subsection, the prior approval of
the Grantor shall not be required for any sale, assignment or transfer or change in control
of the Agreement or Cable System to an Affiliate provided that the proposed assignee or
transferee or new controlling entity must show financial responsibility as may be
determined necessary by the Grantor and must agree in writing to comply with all of the
provisions of the Agreement. Further, Grantee may pledge the assets of the Cable System
for the purpose of financing without the consent of the Grantor; provided that such
pledge of assets shall not impair or mitigate Grantee's responsibilities and capabilities to
meet all of its obligations under the provisions of this Agreement.
SECTION 19. PROHIBITED PRACTICES AND NOTICES
19.1 Preferential or Discriminatory Practices Prohibited
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, and rules and regulations relating thereto.
19.2 Notices
Unless otherwise expressly agreed between the parties, all notices required to be given
under this Agreement shall be in writing and shall be deemed to be given when deposited
in a correctly addressed envelope via U.S. Mail (with receipt deemed if sent via regular
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mail within 5 business days after having been posted in the regular mail) or upon receipt
when hand delivered or with Federal Express, UPS or similar service with
receipt/acknowledgement or upon receipt when sent Certified Mail or Registered Mail.
Throughout the term of this Agreement, each party shall maintain and file with the other
a local address for the service of notices by mail. All notices shall be sent to such
respective address. At the effective date of this Agreement:
Grantee's address shall be:
TDS Broadband Service LLC
525 Junction Road
Madison, WI 53717
Attention: Legal Department
Grantor's address shall be:
Town Administrator
Town of Estes Park Colorado
170 MacGregor Avenue
Estes Park, CO 80517
With a Copy to:
Estes Park Town Attorney
170 MacGregor Avenue
Estes Park, CO 80517
The Grantor and Grantee may designate such other address or addresses from time to
time by giving notice to the other in the manner provided for in this subsection.
SECTION 20. MISCELLANEOUS PROVISIONS
20.1 Cumulative Rights
All rights and remedies given to the Town by this Agreement or retained by the Town
herein shall be in addition to and cumulative with any and all other rights and remedies,
existing or implied, now or hereafter available to the Town, at law or in equity, and such
rights and remedies shall not be exclusive, but each and every right and remedy
specifically given by this Agreement or otherwise existing or given may be exercised
from time to time and as often and in such order as may be deemed expedient by the
Town and the exercise of one or more rights or remedies shall not be deemed a waiver of
the right to exercise at the same time or thereafter any other right or remedy.
20.2 Costs to be Borne by Grantee
Grantee shall pay for costs of publication of this Agreement and all Notices prior to
any public meeting or hearing provided for or in connection with this Agreement if
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such publication or notices are required by a Town Ordinance or other Applicable
Law.
20.3 Binding Effect
This Agreement shall be binding upon the parties hereto, their permitted successors and
assigns.
20.4 Authority to Amend
This Agreement may be amended at any time by mutual written agreement between the
parties.
20.5 Venue
The venue for any dispute related to this Agreement shall be in the United States District
Court forthe District of Colorado or in the District Court in Larimer County, Colorado.
20.6 Governing Laws
This Agreement shall be governed, construed and enforced in accordance with the laws
of the State of Colorado (as amended), the Cable Act as amended, any applicable rules,
regulations and orders of the FCC, and any other Applicable Laws, consistent with this
Agreement (as such now exist, are later amended or subsequently adopted). Nothing
contained herein shall be deemed a waiver of any rights or protections of Grantor or
Grantee existing under such laws or regulations.
20.7 Captions
The captions and headings of this Agreement are for convenience and reference purposes
only and shall not affect in any way the meaning or interpretation of any provisions of
this Agreement.
20.8 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal -agent relationship
between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner that would indicate any such relationship
with the other.
20.9 Waiver
The failure of either party at any time to require performance by the other of any
provision hereof shall in no way affect the right of the other party hereafter to enforce the
same. Nor shall the waiver by either party of any breach of any provision hereof be taken
or held to be a waiver of any succeeding breach of such provision, or as a waiver of the
provision itself or any other provision.
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20.10 Severability
If any Section, subsection, paragraph, sentence, clause, phrase, term or provision of
this Agreement is for any reason determined to be illegal, invalid or unconstitutional by
any Court or agency of competent jurisdiction, such shall be deemed separate, distinct
and independent and such determination shall have no effect on the validity of any
other Section, subsection, paragraph, sentence, clause, phrase, term or provision of this
Agreement, all of which will remain in full force and effect for the term of the
Agreement.
20.11 Force Majeure
The Grantee shall not be held in default under, or in noncompliance with, the provisions
of this Agreement, nor suffer any enforcement or imposition of damages relating to
noncompliance or default, where such noncompliance or alleged defaults occurred or
were caused by circumstances reasonably beyond the ability of the Grantee to control,
including, but not limited to, war or riots, civil disturbances, declared local or national
emergencies, including health emergencies, floods or other severe or unusual weather
conditions or natural catastrophes, labor stoppages, slow downs, power outages
exceeding back-up power supplies or work delays caused by waiting for utility
providers to service or monitor their utility poles to which the Grantee's Cable System is
attached. If Grantee believes that a reason beyond its control has prevented or
delayed its compliance with the terms of this Agreement, Grantee shall provide
documentation as reasonably required by the Grantor to substantiate the Grantee's
claim. If Grantee has not yet cured the deficiency, Grantee shall also provide the
Grantor with its proposed plan for remediation, including the timing for such cure.
20.12 Entire Agreement
Except as provided in Section 2.4(C), the 2012 Franchise shall be of no further force
or effect and this Agreement and Exhibit represent the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof and
supersede all prior oral and written negotiations between the parties.
20.13 Attorneys' Fees
If any action or suit arises in connection with this Agreement, the prevailing party (either
the Town or Grantee, as the case may be) shall be entitled to recover all of its reasonable
attorneys' fees, costs and expenses in connection therewith, in addition to such other
relief as the court may deem proper.
20.14 Action of the Town or Grantee
In any action by the Town or Grantee mandated or permitted under the terms 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 unless otherwise specified herein.
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20.15 Authorization
Each of the undersigned represents and warrants that he or she is duly and properly
authorized to sign on behalf of their respective entity.
IN WITNESS WHEREOF this Agreement is signed in the name of The Town
of Estes Park, Colorado this th day of January, 2024.
Accepted and approved this day of , 2024.
TDS BROADBAND SERVICE LLC
By:
Its:
TOWN OF ESTES PARK, COLORADO
By:
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM
Town Attorney
Special Counsel
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EXHIBIT I
CUSTOMER SERVICE STANDARDS
SECTION 1. POLICY.
Grantee should be permitted the option and autonomy to first resolve citizen complaints
without delay and interference from the Town.
Where a given complaint is not addressed by Grantee to the citizen's satisfaction, the Town
may intervene, if requested to do so by the citizen.
These Standards are intended to be of general application; however, Grantee shall be
relieved of any obligations hereunder if it is unable to perform due to circumstances beyond
its reasonable control, such as a region -wide natural emergency or in the event of force
majeure (as defined in Section 20.11 of the Agreement) affecting a significant portion of
the Town. Grantee is free to exceed these Standards to the benefit of its Customers and
such shall be considered performance for the purposes of these Standards.
Grantee is responsible to the Town to insure that its agents, contractors and subcontractors
comply with all applicable provisions of these Standards.
SECTION 2. DEFINITIONS
When used in these Customer Service Standards (the "Standards"), the following words,
phrases, and terms shall have the meanings given below.
2.1 "Cable Service" shall mean the one-way transmission to Customers of video
programming or other programming service, and Customer interaction, if any, which is
required for the selection or use of such video programming or other programming service.
2.2 "Cable System" shall mean any facility including that of Grantee consisting of a set
of closed transmission paths and associated signal generation, reception and control
equipment that is designed to provide Cable Service which includes video programming and
which is provided to multiple Customers within a community, but such term does not include
(A) a facility that serves only to retransmit the television signals of one or more television
broadcast stations; (B) a facility that serves Customers without using any right-of-way; (C) a
facility of a common carrier which is subject in whole or in part to the provisions of Title II
of the Federal Communications Act (47 U.S.C. 201, et. seq.), except that such facility shall
be considered a Cable System (other than for purposes of Section 621(c) (47 U.S.C. 541(c))
to the extent such facility is used in the transmission of video programming directly to
Customers, unless the extent of such use is solely to provide interactive on -demand services;
(D) an open video system that complies with federal statutes, or (E) any facilities of any
electric utility used solely for operating its electric utility systems.
2.3 "Customer" shall mean any person who lawfully receives within the Town, Cable
Service from Grantee with Grantee's express permission.
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2.4 "Customer Service Representative" (or "CSR") shall mean any person employed
by Grantee to assist, or provide service to, Customers, whether by answering public
telephone lines, writing service or installation orders, answering Customers' questions,
receiving and processing payments, or performing other Customer service -related tasks.
2.5 "Town" shall mean Estes Park, Colorado acting by and through the Town
Board or its designee. The Town refers to the incorporated portions of the Town.
2.6 "Grantee" shall mean TDS Broadband Service LLC and its lawful successors and
assigns and any Person, who provides Cable Services and directly or through one or more
affiliates owns a significant interest in such Cable System or who otherwise controls or is
otherwise responsible for through any arrangement, the management and operation of such a
Cable System.
2.7 "Person" shall mean any individual, sole proprietorship, partnership, association or
corporation, or any other form of entity or organization.
2.8 "Service interruption" means the loss of picture or sound on one or more cable
channels.
SECTION 3. CUSTOMER SERVICE.
3.1. Courtesy
All employees of Grantee shall provide effective and satisfactory service in all contacts with
Customers.
3.2. Accessibility; Cable System office hours and telephone availability
(A) Grantee shall maintain a local, toll -free or collect call telephone access
line which will be available to its Customers 24 hours a day, seven days a week.
(1) Trained company representatives will be available to respond to
Customer telephone inquiries during Normal Business Hours.
(2) After Normal Business Hours, the access line may be answered
by a service or an automated response system, including an answering machine.
Inquiries received after Normal Business Hours must be responded to by a
trained company representative on the next business day.
(B) Under Normal Operating Conditions, if a Customer service telephone call is
answered with a recorded message providing the Customer with various menu options to
address the Customer's concern, the recorded message must provide the Customer with the
option to connect to and speak with a Customer Service Representative (CSR) within ninety
(90) seconds of the commencement of the recording. From the time a Customer chooses a
menu option to speak directly with a CSR, the answer time by a CSR, including wait time,
shall not exceed thirty (30) seconds when the connection is made. If the call needs to be
transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no
less than seventy five (75) percent of the time under Normal Operating Conditions, measured
on a quarterly basis.
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(C) Grantee will not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards set forth above, unless a
historical record of complaints indicates a clear failure to comply.
(D) Subject to the provisions of Section 6.3 of the Franchise Agreement, a
Customer service center shall be provided and be open for business as set forth in the
Agreement.
3.3. Responsiveness; installations, outages and service calls
(A) Under normal operating conditions, each of the following five standards will
be met no less than seventy-five (75) percent of the time measured on a quarterly basis:
(1) Standard installation will be performed within seven (7) business days
after an order has been placed unless the Customer agrees to a later date for
installation. "Standard" installations are those that are located up to 125 aerial feet
or sixty (60) underground feet from the existing distribution system provided that
this does not require extensive boring or the use of costly construction equipment.
(2) Excluding conditions beyond the control of a Grantee, Grantee will
begin working on "service interruptions" promptly and in no event later than 24 hours
after
the interruption becomes known. Grantee must begin actions to correct other
service
problems the next business day after notification of the service problem.
(3) The "appointment window" alternatives for installations, service calls,
and other installation activities will be either a specific time or, at maximum, a four-
hour time block during Normal Business Hours. For purposes herein, "Normal
Business Hours" shall be between 8:00 A.M. to 5:00 P.M., Monday through Friday.
Grantee may schedule service calls and other installation activities outside of
Normal Business Hours for the express convenience of the Customer.
(4) Grantee may not cancel an appointment with a Customer after the
close of business on the business day prior to the scheduled appointment unless an
emergency exists.
(5) If Grantee's representative is running late for an appointment with a
Customer and will not be able to keep the appointment as scheduled, the Customer
will be contacted. The appointment will be rescheduled, as necessary, at a time
mutually agreed upon by the Customer and the Grantee for the convenience of the
Customer.
(B) Grantee shall provide clear television reception that meets technical
standards established by the United States Federal Communications Commission (the
"FCC"). Grantee shall render efficient service, make repairs promptly, and interrupt service
only for good cause and for the shortest time possible. Scheduled interruptions shall be
preceded by notice, and to the extent reasonably possible, and shall occur during periods
of minimum use of the System, preferably between midnight and six a.m. (6:00 a.m.).
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(C) Grantee's Customer Service Representative shall have the authority to
provide credit for interrupted service, to waive fees, and to schedule service appointments
where appropriate.
(D) Billings, refunds and credits.
(1) Bills will be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and premium service
charges and equipment charges. Bills will also clearly delineate all activity during the
billing period, including optional charges, rebates and credits. In case of a billing
dispute, Grantee must respond to a written complaint from a Customer within thirty
(30) days.
(2) Refund checks or credits will be issued promptly, but no later than
either the Customer's next billing cycle following resolution of the request or thirty
(30) days, or upon the return of the equipment supplied by Grantee if service is
terminated.
(E) Treatment of Private Property.
(1) Grantee shall keep tree trimming to a minimum; trees and shrubs
or other landscaping that are damaged by Grantee, any employee or agent of
Grantee during installation or construction shall be restored to their prior
condition or replaced. Trees and shrubs shall not be removed without the prior
permission of the owner or legal tenant of the property on which they are located.
(2) Grantee shall, at its own cost and expense, and in a manner
approved by the property owner, restore any property to as good condition as
before the work causing such disturbance was initiated. Grantee shall repair,
replace or compensate a property owner for any damage resulting from Grantee's
installation, construction, service or repair activities.
(3) Except in the case of an emergency involving public safety or service
interruption to a large number of Customers, Grantee shall give reasonable notice to
property owners or legal tenants prior to entering upon private premises. Nothing
herein shall be construed as authorizing access or entry to private property, or any
other property, where such right to access or entry is not otherwise provided by law,
easement, and/or an agreement with the Town. For the installation of pedestals or
other major construction or installation projects on private property, Grantee will
use reasonable efforts to provide advance notice of work on or use of such private
property. In the case of an emergency, Grantee shall attempt to contact the property
owner or legal tenant in person, and shall leave a door hanger notice in the event
personal contact is not made. Notwithstanding the foregoing, if another Person's
property will be affected by work requested by a Customer or potential Customer,
Grantee shall endeavor to provide notice to that Person as well.
(4) Grantee personnel shall clean all areas surrounding any work site and
ensure that all cable materials have been disposed of properly.
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3.4 Services for Customers with Disabilities
Grantee will use reasonable good faith efforts to meet the special needs of Customers with
disabilities.
3.5 Notification to Customers
(A) Grantee shall provide written information on each of the following areas at
the time of installation of service, at least annually to all Customers, and at any time upon
request.
(1) Products and services offered;
(2) Prices and options for programming services and conditions of
subscription to programming and other services;
(3) Installation and service maintenance policies;
(4) Instructions on how to use the Cable Service;
(5) Channel positions programming carried on the Cable System; and,
(6) Billing and complaint procedures.
(B) Customers will be notified of any changes in rates, programming services or
channel positions as soon as possible in writing consistent with applicable law. Notice must
be mailed to Customers a minimum of thirty (30) days in advance of such changes if the
change is within the control of Grantee. In addition, Grantee shall notify Customers by mail
thirty (30) days in advance of any significant changes in the other information required by
Section 3.5(A). Notwithstanding any other provision herein, Grantee shall not be
required to provide prior notice of any rate change that is the result of a regulatory fee or
any other fee, tax, assessment, or charge of any kind imposed by any Federal or State
agency, on the transaction between Grantee and the Customer.
(C) All officers, agents, and employees of Grantee or its contractors or
subcontractors who are in personal contact with Customers shall have identification cards
bearing their name and photograph. Grantee shall account for all identification cards at all
times. Every vehicle of Grantee shall be clearly visually identified to the public as
working for Grantee. All CRSs shall identify themselves orally to callers immediately
following the greeting during each telephone contact with the public.
3.6 Customer Privacy
(A) Grantee shall not monitor cable television signals to determine the
individual viewing patterns or practices of any Customer without prior written consent
from that Customer, except as needed to maintain System integrity or as otherwise
permitted by Federal Law.
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(B) Grantee shall not sell or otherwise make available Customer lists or other
personally identifiable Customer information without prior written Customer consent,
except as otherwise permitted by Federal Law. Grantee is permitted to disclose such
information if such disclosure is necessary to render, or conduct, a legitimate business
activity related to a Cable Service or other service provided by Grantee to its Customers.
3.7 Safety
Grantee shall install and locate its facilities, Cable System, and equipment in compliance
with all federal, state, local, and company safety standards, and in such manner as shall
not unduly interfere with or endanger persons or property. Whenever a Grantee receives
notice that an unsafe condition exists with respect to its equipment, Grantee shall
investigate such condition immediately, and shall take such measures as are necessary to
remove or eliminate any unsafe condition.
SECTION 4. COMPLAINT PROCEDURE
4.1 Complaints to Grantee
(A) Grantee shall establish written procedures for receiving, acting upon, and
resolving Customer complaints, and crediting Customer accounts and shall publicize such
procedures through printed documents at Grantee's sole expense consistent with Section
3.5(A) of these Standards.
(B) Said written procedures shall prescribe a simple manner in which any
Customer may submit a complaint by telephone or in writing to Grantee that it has violated
any provision of these Customer Service Standards, any terms or conditions of the
Customer's contract with Grantee, or reasonable business practices.
(C) At the conclusion of Grantee's investigation of a Customer complaint, but
in no more than thirty (30) calendar days after receiving the complaint, Grantee shall notify
the Customer of the results of its investigation and its proposed action or credit.
(D) Grantee shall also notify the Customer of the Customer's right to file a
complaint with the Town in the event the Customer is dissatisfied with Grantee's decision,
and shall thoroughly explain the necessary procedures for filing such complaint with the
Town.
(E) Grantee's complaint procedures shall be filed with the Town prior to
implementation.
4.2 Complaints to the Town
(A) Any Customer who is dissatisfied with any proposed decision of Grantee
or who has not received a decision within the thirty (30) day period as required with
respect to an unresolved complaint shall be entitled to have a written complaint reviewed
by the Town or its designee. The Customer may initiate the review by filing a written
complaint together with Grantee's written decision, if any, with the Town.
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(B) The Customer shall make such filing and notification within thirty (30) days
of receipt of Grantee's decision or, if no decision has been provided, within forty (40) days
after filing the original complaint with Grantee. The Customer shall notify Grantee that a
complaint has been filed with the Town by mailing a copy of the complaint to Grantee by
certified mail, return receipt requested.
(C) Grantee shall file a written response to the complaint with the Town within
fifteen (15) days of receipt of a copy of the complaint from the Customer.
(D) If the Town or its designee decides that further evidence is warranted, the
Town or its designee may require Grantee and the Customer to submit, within ten (10)
days of notice thereof, a written statement of the facts and arguments in support of their
respective positions.
(E) Grantee and the Customer shall produce any additional evidence,
including any reports from Grantee, which the Town or its designee may deem necessary
to an understanding and determination of the complaint.
(F) The Town or its designee shall issue a determination within fifteen (15) days
after examining the materials submitted, setting forth its basis for the determination.
(G) The Town or its designee may extend these time limits for reasonable
cause and may intercede and attempt to negotiate an informal resolution.
(H) If the Town determines that the Customer's written complaint is valid and
that Grantee did not provide the complaining Customer with the proper solution and/or
credit, the Town may require Grantee to grant a specific solution in accordance with the
Grantee's credit/refund policy or resolve the matter as otherwise mutually agreed upon by
the Grantee and the Town. If the Town finds that the Customer's written complaint has no
validity, the complaint shall be dismissed with no further action being taken.
4.3 Overall Quality of Service
The Town may evaluate the overall quality of Customer service provided by Grantee to
Customers:
(A) In conjunction with any performance review provided for in the
Agreement with the Town; and,
(B) At any other time, at its sole discretion based on the number of written
Customer complaints received by Grantee and the Town, and Grantee's response to those
complaints.
(C) If there is an uncured breach of a material provision of these Customer
Service Standards or pattern of repeated violations of any provision of these Customer
Service Standards, then the Town may require the Grantee to hire, at its expense, a qualified
consultant to make an independent review of the Cable System to confirm that the Grantee
and the Cable System are in substantial compliance with the terms and conditions of these
Customer Service Standards as well as all FCC Technical Standards. Prior to
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commencement of this review, the consultant shall contact the Town and confirm any
specific areas of interest by the Town which should be reviewed. Upon completion of the
report, the consultant shall submit such report to the Town confirming the status of
Grantee's Cable System and setting forth any areas of noncompliance.
4.4 Non -Compliance with Customer Service Standards.
Non-compliance with any provision of these Customer Service Standards is a violation of
these Customer Service Standards.
SECTION 5. MISCELLANEOUS
5.1 Severability
Should any Section, subsection, paragraph, sentence, clause, phrase, term, or provision of
these Standards be determined to be illegal, invalid, or unconstitutional by any court or
agency of competent jurisdiction with regard thereto, such determination shall have no
effect on the validity of any other Section, subsection, paragraph, sentence, clause, phrase,
term, or provision of these Standards, each of the latter of which shall remain in full force
and effect.
5.2 Non -Waiver
Failure to enforce any provision of these Standards shall not operate as a waiver of the
obligations or responsibilities of Grantee under said provision, or any other provision of
these Standards.
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