Loading...
HomeMy WebLinkAbout2011-18 Compliance Agreement with Comcast } 2 9 F RESOLUTION NO. 18 Series of 2011 A RESOLUTION APPROVING A COMPLIANCE AGREEMENT BETWEEN THE TOWN OF VAIL AND COMCAST OF COLORADO VI, LLC; AND SETTING FORTH DETAILS IN REGARD THERETO WHEREAS, the Town of Vail (the "Town "), in the County of Eagle and State of Colorado is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Town Charter (the "Charter "); WHEREAS, the members of the Town Council of the Town (the "Council') have been duly elected and qualified; , WHEREAS, Comcast of Colorado VI, LLC ("Comcast") provides cable television service within the Town under a franchise agreement that expired on January 5, 2011 (the "Franchise Agreement'); WHEREAS, the Franchise Agreement remains in full force and effect and is extended on a month -to -month basis pursuant to Section 626 of the 1984 Cable Communications Policy Act; WHEREAS, on October 19, 2010, the Council directed staff to hire a third party to inspect and audit the cable television system, and the associated report, found between 1500 and 2500 technical violations of the current Franchise Agreement; WHEREAS, on January 13, 2011 the Town provided Comcast a copy of the audit; and WHEREAS, the Town and Comcast wish to enter into a Compliance Agreement (the "Agreement") to outline the terms under which Comcast will remedy the violations identified in the audit. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Council hereby approves and authorizes the Town Manager to enter into the Agreement with Comcast in the same form as attached hereto as Exhibit A . Section 2. This Resolution shall take effect immediately upon its passage.` INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council _ of the Town of Vail held this 20 day of September, 2011. Richard Cleveland Town Mayor ATT C rele' Donaldson, gy p; •.•• Tow Clerk Resolution No. 18, Series 2011 % & COL �: COMPLIANCE AGREEMENT ( THIS COMPLIANCE AGREEMENT (the "Agreement ") is made and entered into this day of , 2011, by and between Comcast of Colorado VI LLC, a limited liability company with an address of ( "Comcast "), and the Town of Vail, Colorado, a Colorado home rule municipality with an address of 75 South Frontage Road, Vail, CO 81657 (the "Town ") (each individually a "Party" and collectively the "Parties "), WHEREAS, Comcast operates a cable system providing cable television service within the Town (the "Cable System ") under a franchise agreement that expired on January 5, 2011 (the "Franchise Agreement "); WHEREAS, the Franchise Agreement remains in full force and effect and is extended on a month -to -month basis pursuant to Section 626 of the 1984 Cable Communications Policy Act (the "Cable Act "), and, where applicable, the Vail Town Code; WHEREAS, the National Electrical Code, as adopted by the Town, sets out certain standards for the grounding of installations in the Cable System; WHEREAS, in November 2010, the Town hired the Kramer.Firm, Inc. to inspect and ` audit the Cable System, and the associated report (the "Kramer Report "), released in January 2011, documented 75 violations of the National Electrical Code (the "NEC "); WHEREAS, on January 13, 2011, the Town provided Comcast with a copy of the Kramer Report; WHEREAS, on January 18, 2011, a Comcast representative appeared at a public meeting before the Town Council and announced that Comcast had already begun addressing all NEC violations identified in the Kramer Report, including such issues as drop bury completion, PED replacement, drop bonding, and multi - dwelling unit lock box replacement or securing; WHEREAS, representatives from Comcast at both the January 18, 2011 public meeting and in subsequent meetings and correspondence with representatives from the Town committed to correcting all 75 NEC violations identified in the Kramer Report, and Comcast has represented that nearly all 75 NEC violations were in fact corrected by February 1, 2011 where such corrective action was not impeded by either Town - imposed moratoria or weather or snow conditions; WHEREAS, also on January 18, 2011, the Town Council requested a letter of credit from Comcast in the amount of one hundred thousand dollars ($100,000); WHEREAS, pursuant to Section 8 -5 -18 of the Vail Town Code, the Town Council can request a letter of credit from Comcast in the amount of fifty thousand dollars ($50,000); WHEREAS, on February 2, 2011, Comcast filed a letter of credit with the Town in the amount of fifty thousand dollars ($50,000) in compliance with Section 8 -5 -18 of the Vail Town Code, and partial compliance with the Town Council's request (the "Letter of Credit ");! Y y 3 t WHEREAS, Comcast contests whether the issues identified in the Kramer Report can be characterized as uncured violations of "material" obligations of the Vail Town Code for purposes of Section 8 -5 -19 of the Vail Town Code, and contests whether such issues would qualify as a "material violation" of the Franchise Agreement pursuant to Section 2.9 of the Franchise Agreement; WHEREAS, Comcast has either already corrected nearly all or is diligently proceeding to fully remedy all 75 NEC violations identified in the Kramer Report, and has commenced a program to audit its outside plant and affirmatively identify and correct issues of actual and potential noncompliance over the course of 2011; and WHEREAS, in lieu of hearings concerning breach and liquidated damages, Comcast and the Town wish to enter into this Agreement to outline the terms under which Comcast will remedy the NEC violations identified in the Kramer Report and maintain the Cable System in full compliance with the NEC and applicable law. NOW, THEREFORE, based upon the foregoing recitals and the consideration set forth herein, the amount and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Extension and Informal Negotiations of Franchise Renewal Comcast is currently providing cable television service to the Town pursuant to the Franchise Agreement, which expired on January 5, 2011 and is extended on a month -to -month basis pursuant to Section 626 of the Cable Act. Comcast and the Town agree that the Franchise Agreement shall be extended through December 31, 2011 to allow the Parties time to continue negotiating in good faith a cable franchise agreement renewal pursuant to the informal renewal procedures of the Cable Act. 2. Comcast's Obligations Comcast shall: a. Correct all 75 NEC violations noted in the Kramer Report on or before December 31, 2011; b. Complete a complete inspection of the Cable System facilities in the public rights -of -way within the Town on or before December 31, 2011; C. Make its best efforts to inspect and repair drops in single- family homes at every opportunity where a Comcast technician or contractor is present at a home in the ordinary course of business and allowed lawful access to such home or property; d. Throughout the remainder of 2011, or some longer period as the Town and Comcast may mutually agree, provide the Town with periodic and detailed progress reports of the Cable System inspection at intervals of not less than once per calendar month, including the areas inspected, the issues discovered and the steps being taken to resolve those issues; e. Consistent with subsections a — d above, identify and correct all issues found during Comcast's inspection of the Cable System on or before December 31, 2011; and 2 t i i i 4 f. Comply with a re- inspection by the Town to ensure Comcast's compliance with this Agreement, with the re- inspection to occur in the first half of 2012 when the weather permits. Comcast and the Town will cooperate in good faith on this re- inspection and selection of corresponding methodology and audit process and personnel or consultants to be used for such re- inspection. For purposes of this subsection, the Town acknowledges that external factors such as weather and ground movement can impact the Cable System at any time, and trespass and privacy concerns with respect to single- family residences can impact Comcast's ability to inspect and repair drops at such residences, and that there is never a "perfect score" with respect to cable plant condition. So long as Comcast documents its repair and maintenance activities, provides monthly updates to the Town pursuant to Section 2(d) of this Agreement, and makes its plant and personnel available for re- inspection so that the inspector can confirm the accuracy of Comcast's updates, Comcast shall not be found in violation of this subsection. 3. Payment Within thirty (30) days of the effective date of this Agreement, Comcast agrees to pay to the Town the sum of twenty -five thousand dollars and no cents ($25,000). Comcast agrees that it shall not offset or deduct from past, present, or future franchise fee payments owed the Town or pass through as a separate line item on subscriber bills the $25,000 payment provided for in this Section. This amount is understood and agreed to represent a compromise of disputed claims and shall not be construed as an admission of any liability. 4. Release The Town, upon receipt of payment of the $25,000, shall release and discharge Comcast from any and all claims, actions and demands regarding the NEC violations and associated costs and expenses, including attorney and consultants fees, relating to or arising from the Kramer Report. Such release shall be self - executing. Such payment and release shall not relieve Comcast of its obligations to repair and correct its facilities pursuant to the schedule set forth in this Agreement. 5. Liquidated Damages Should Comcast fail to (a) correct the 75 NEC violations noted in the Kramer Report as provided in Section 2.a; (b) inspect and repair facilities in the public rights -of -way as provided in Section 2.b; (c) make its best efforts to inspect and repair drops in single - family homes as provided in Section 2 in its ordinary course of business; (d) provide the Town with periodic progress reports as provided in Section 2.d; or (e) fail to pay the Town the $25,000 provided for in Section 3, then the Town is authorized to commence procedures to impose liquidated damages, as follows: the Town shall first notify Comcast of the alleged violation in writing, and demand correction within a reasonable time, which shall not be less than ten (10) business days. If Comcast fails to correct the violation within the time prescribed or if Comcast fails to commence corrective action within the time prescribed and diligently remedy such violation thereafter, the Town may impose liquidated damages, assessable from the Letter of Credit provided for in Section 6, of two hundred dollars ($200) per day. If the Town imposes the liquidated damages for 90 days or more, then Comcast shall have the right to a public hearing before the Town Council to contest the imposition of the liquidated damages for any additional days beyond 90 days, at which hearing Comcast shall have the right to present evidence on its behalf. Nothing in this Section shall constitute a waiver of Comcast's right to challenge any assessment of liquidated damages under applicable law. k 3 t+ 6. Letter of Credit Comcast shall maintain the Letter of Credit at fifty thousand dollars ($50,000) throughout the term of this Agreement, unless such requirement is superseded pursuant to a renewed Franchise Agreement. Should the Letter of Credit be depleted due to withdrawals by the Town pursuant to Section 5 hereof, Comcast shall replenish the Letter of Credit within seven (7) days of written notice by the Town. 7. Governing Law and Venue This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. orcement or the waiver of any one or more defaults or 8. No Waiver Delays in enf 1 breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligation of this Agreement. 9. Integration This Agreement constitutes the entire agreement between the Parties on matters relating to the 75 NEC violations identified in the Kramer Report, superseding all prior oral or written communications relevant to the Kramer Report. t , 10. Third Parties There are no intended third -party beneficiaries to this Agreement. 1, 11. Notice Any notice under this Agreement shall be in writing, and shall be deemed sufficient when directly presented or sent pre -paid, first class United States Mail to the Party at the address set forth on the first page of this Agreement. 1 12. Severability If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. 13. Modification This Agreement may only be modified upon written agreement of the Parties. 14. Assignment Neither this Agreement nor any of the rights or obligations of the Parties hereto, shall be assigned by either Party without the written consent of the other. t' 15. Governmental Immunity The Town, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations (presently one hundred fifty thousand dollars ($150,000) per person and six hundred thousand dollars ($600,000) per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24 -10 -101, et seq., as amended, or otherwise available to the Town and its officers or employees. 16. Rights and Remedies The rights and remedies of the Town under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed. 4 i' i ( \ ( 12 Co mc[pa rt . This Agreement ma be executed in one or moecounterparts, ec { of whit shall be deme an original, b!all o whit together shall co n(l!meo eadthesame [ instrument. ( [ IN WITNESS WHEREOF the Parties have ee de this Agreement on the date firms! ( forth a o e ( TOE OF V *!L COLORADO £ [ t Dick Cleveland, Mayor ( ATTEST: ( � ( Lorelei Donaldson, Town Clerk [ [ APPROVED AS TO FORM: / [ J. Matthew Mir,Town Attorney ( / COMCAST OF COLORADO YILLC \ / B M ( Its: ( STATE OF COLORADO ) ( ) m. t COUNTY OF ) ( [ The foregoing instrument was subscribed, sworn m and acknowledged before mete [ day o , 2011, b as [ of Comc m of Colorado YILLC. [ Mycommission epics ( (SEAL [ [ Notary Public [ [ [ t [ / [ / r 5 \ ( ( [ [