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HomeMy WebLinkAbout2012-23 Approving a Franchise Agreement with Comcast of Colorado VI, LLCORDINANCE NO. 23 SERIES 2012 AN ORDINANCE APPROVING A FRANCHISE AGREEMENT WITH COMCAST OF COLORADO VI, LLC FOR THE PROVISION OF CABLE SERVICES IN THE TOWN OF VAIL WHEREAS, the Town and TCI Cablevision (the predecessor of Comcast Colorado VI, LLC) entered into a franchise agreement on January 5, 1995 to allow TCI Cablevision to provide cable service to subscribers of such service in the Town of Vail, which franchise agreement expired on January 4, 2010; WHEREAS, on April 2, 2007 and again on December 20, 2010, the Town received from Comcast Colorado VI, LLC ("Comcast") an application for renewal of its franchise agreement with the Town; WHEREAS, during negotiations of a new franchise agreement, the existing franchise agreement was extended several times; WHEREAS, during negotiations of a new franchise agreement, the Town discovered perFormance and technical issues that necessitated resolution prior to the approval of a new franchise agreement; WHEREAS, in July 2011, the Town and Comcast entered into a Compliance Agreement to resolve the performance and technical issues; WHEREAS, by July 2012, the performance and technical issues were resolved and the Compliance Agreement was fully performed; WHEREAS, Article 12 of the Vail Town Charter authorizes the Town Council to grant franchises for a term not to exceed finrenty (20) years; WHEREAS, the procedures for renewal of franchise agreements for the provision of cable services is set forth in Chapter 5 of Title 8 of the Vail Town Code; and WHEREAS, the Town Council finds and determines that the franchise agreement with Comcast for the provision of cable services in the Town, in the form attached hereto and incorporated herein by this reference, complies with Article 12 of the Vail Town Charter and Chapter 5 of Title 8 of the Vail Town Code, NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. The Franchise Agreement befinreen the Town and Comcast is hereby approved in substantially the form attached hereto, subject to final approval by the Town Attorney, for a term of ten (10) years, commencing on January 1, 2013. Ordinance No. 23, Series of 2012 Section 2. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 3. The Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town and the inhabitants thereof. Section 4. The amendment of any provision of the Vail Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 4th day of December, 2012 and a public hearing for second reading of this Ordinance set for the 18th day of December, 2012, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. N OF � oy� ,...... '�il . . . ••, ,` ; . . • . • � � Andrew P. Daly, Mayor ATTE . � SEA`L : . . . . o/�Q � ��, �,/ �''�••.....•�•�o Donaldson, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 18th day of December, 2012. ��FV � ""A� ndrew P. Daly, Mayor S�: •" ''• ; ATT S . ~o� � : � „ • (� n . . aldson, Town Clerk� ��;;; � Ordinance No. 23, Series of 2012 2 FRANCHISE AGREEMENT TABLE OF CONTENTS SECTION 1. DEFINITIONS .......................................................................................................1 SECTION 2. GRANT OF FRANCHISE ....................................................................................4 2.1 Grant .............................................................................................................................4 2.2 Use of Public Ways ......................................................................................................5 2.3 Term .............................................................................................................................5 2.4 Effective Date ..............................................................................................................5 2.5 Competitive Equity ......................................................................................................6 2.6 Familiarity with Agreement and Acceptance ...............................................................6 SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS .........................................6 3.1 Franchise Fee ...............................................................................................................6 3.2 Payments ......................................................................................................................7 3.3 Audits ...........................................................................................................................7 3.4 Additional Commitments Not Franchise Fees .............................................................7 3.5 Payment on Termination ..............................................................................................7 3.6 Service Packages ..........................................................................................................8 3.7 Tax Liability .................................................................................................................8 SECTION 4. ADMINISTRATION AND REGULATION .......................................................8 4.1 Rates and Charges ........................................................................................................8 4.2 No Rate Discrimination ...............................................................................................8 4.3 Time Limits Strictly Construed ....................................................................................8 4.4 Performance Evaluations .............................................................................................8 4.5 Late Fees and Disconnection .......................................................................................9 SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS .......................................9 5.1 Indemnification ............................................................................................................9 5.2 Indemnification Procedures and Defense ....................................................................9 5 3 Insurance ....................................................................................................................10 5.4 Letter of Credit ...........................................................................................................1 l 5.5 Performance Bond ......................................................................................................12 SECTION 6. CUSTOMER SERVICE ......................................................................................12 6.1 Service Availability ...................................................................................................12 6.2 Customer Service Standards ......................................................................................12 6.3 Customer Privacy .......................................................................................................12 6.4 Customer Service Agreement and Manual ................................................................13 SECTION7. RECORDS ............................................................................................................13 7.1 Required Records .......................................................................................................13 7.2 Proprietary Information ..............................................................................................14 73 Copies of Federal and State Reports ..........................................................................14 SECTION8. PROGRAMMING ...............................................................................................14 8.1 Broad Programming Categories .................................................................................14 8.2 Obscenity ...................................................................................................................15 8.3 Services for the Disabled ...........................................................................................15 8.4 Parental Control Device .............................................................................................15 8.5 Complimentary Cable Service ...................................................................................15 SECTION9. ACCESS ................................................................................................................16 9.1 Access Channels ........................................................................................................16 9.2 Triggers for Additional Access Channels ..................................................................16 9.3 Underutilized Access Channels .................................................................................16 9.4 Access Channel Location ...........................................................................................16 9.5 Access Channel Promotion ........................................................................................17 9.6 PEG Fee .....................................................................................................................17 9.7 Return Lines ...............................................................................................................17 SECTION 10. USE OF PUBLIC WAYS ..................................................................................18 10.1 Construction and Maintenance .................................................................................18 10.2 Location and Movement of Facilities .......................................................................18 10.3 Acquisition of Facilities ...........................................................................................19 10.4 Reservation of Public Ways .....................................................................................19 10.5 Discontinued Facilities .............................................................................................19 10.6 Use of Conduit or Ducts ...........................................................................................20 10.7 Undergrounding .......................................................................................................20 10.8 Tree Trimming .........................................................................................................20 10.9 GIS Mapping ............................................................................................................21 SECTION 11. CABLE SYSTEM DESIGN AND TECI�NICAL STANDARDS ..................21 11.1 Technical Performance .............................................................................................21 11.2 Cable System Performance Testing .........................................................................21 11.3 Standby Power ..........................................................................................................21 SECTION 12. VIOLATIONS AND REVOCATION ..............................................................21 12.1 Procedure for Remedying Violations .......................................................................21 12.2 Alternative Remedies ...............................................................................................22 12.3 Liquidated Damages .................................................................................................22 12/13/2012 Q: I USERSI YAILICOMCASTIAGRIFRANCHISE F/NAL-3.DOC 12.4 Revocation ................................................................................................................23 12.5 Purchase of the Cable System ..................................................................................24 SECTION13. TRANSFER ........................................................................................................24 13.1 Transfer of Ownership or Control ............................................................................24 SECTION 14. MISCELLANEOUS ..........................................................................................25 14.1 Cumulative Rights ....................................................................................................25 14.2 Costs to be Borne by Comcast .................................................................................26 14.3 Binding Effect ..........................................................................................................26 14.4 Modification .............................................................................................................26 14.5 Governing Law and Venue .......................................................................................26 14.6 No Joint Venture ......................................................................................................26 14.7 Waiver ......................................................................................................................26 14.8 Severability ...............................................................................................................26 14.9 Force Majeure ..........................................................................................................26 14.10 Entire Agreement ...................................................................................................26 14.11 Notices ....................................................................................................................27 12/13/2011 Q: I USERSI YAILICOMCASTIAGRIFRANCHISE FINAL-3.DOC FRANCHISE AGREEMENT This Franchise Agreement ("Agreement") is made between the Town of Vail, Colorado, a Colorado home rule municipality (the "Town") and Comcast of Colorado VI, LLC ("Comcast"), on this day of , 2012. WHEREAS, the Town, having determined that the financial, legal, and technical ability of Comcast is reasonably sufficient to provide the services, facilities, and equipment necessary to meet the future cable-related needs of the community, desires to enter into this Agreement with Comcast for the operation and maintenance of a cable system on the terms and conditions set forth herein. NOW THEREFORE, the Town and Comcast agree as follows: SECTION 1. DEFINITIONS For purposes of this Agreement, the following terms shall have the following meanings, provided that terms not defined, or those defined, but not capitalized within the text, shall be given their common and ordinary meaning, and the word "shall" is always mandatory: "Access" includes Public Access, Educational Access and Governmental Access, collectively and means the availability for Noncommercial use by various governmental and educational agencies, institutions and organizations in the community of particular channels on the Cable System to receive and distribute Video Programming to subscribers as permitted under applicable law. "Access Channel" means any Channel designated for Access purposes or otherwise made available to facilitate Access programming. "Affiliate" when used in connection with Comcast means any Person who owns or controls, is owned or controlled by, or is under common ownership or control of Comcast. "Bad Debt" means amounts lawfully owed by a Customer and accrued as revenues on the books of Comcast, but not collected after reasonable efforts by Comcast. "Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission of local television Broadcast Signals and PEG Access Channels required in this Franchise and any additional programming added by the Town and made available to all Customers in the Franchise Area. "Broadcast Signal" means a television or radio signal transmitted over the air to a wide geographic audience, and received by a Cable System off-the-air by antenna, microwave, satellite dishes or any other means. "Cable Act" means the Cabte Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, as amended by the Telecommunications Act of 1996, and any amendments thereto. "Cable Operator" means any Person or group of Persons, including Comcast, who provides Cable Service over the Cable System and directly or through one or more Affiliates owns a significant interest in such Cable System or who otherwise controls or is responsible for, through any arrangement, the management and operation of the Cable System. /2/13/2012 Q: I USERSIVAILICOMCAS7IAGRIFRANCHISE F/NAL-3.DOC "Cable Service" means the one-way transmission to Customers of Video Programming, or other programming service and Customer interaction, if any, that is required for the selection or use of such Video Programming or other programming service. "Cable System" means Comcast's facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment, designed to provide Cable Service that includes Video Programming and provided to Customers in the Franchise Area. "Channel" means a portion of the frequency band capable of carrying a Video Programming Service or combination of Video Programming Services, whether by analog or digital signal, on a twenty-four (24) hour per day basis or a portion thereof. "Customer" means a Person who lawfully receives Cable Service from the Cable System with Comcast's express permission. "Designated Access Provider" means an entity designated by the Town to manage or co-manage Public, Educational or Governmental Access Channels and facilities. The Town may be a Designated Access Provider. "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. "Educational Access" means Access where Schools are the primary users having editorial control over programming and services. "Emergency" means any condition constituting a clear and present danger to life or property. "Expanded Basic Service" means cable programming services not included in the Basic Service and excluding premium or pay-per-view services. "FCC" means the Federal Communications Commission or its lawful successor. "Fiber Optic" means a transmission medium of optical fiber cable, along with all associated electronics and equipment capable of carrying electric lightwave pulses. "Franchise Area" means the area within the jurisdictional boundaries of the Town, including any areas hereafter annexed by Town. "Franchise Fee" includes any tax, fee or assessment of any kind imposed by the Town on Comcast or Customers, or both solely because of their status as such, but excluding: (i) any tax, fee or assessment of general applicability (including any such tax, fee, or assessment on both utilities and Cable Operators or their services, but not including a tax, fee, or assessment that is unduly discriminatory against Cable Operators or cable Customers); (ii) capital costs that are required by the Agreement to be incurred by Comcast for Access facilities; (iii) requirements or charges incidental to the awarding or enforcing of the Agreement, including but not limited to, payments for bonds, letters of credit, insurance, indemnification, penalties or liquidated damages; or (iv) any fee imposed under Title 17, United States Code. "Governmental Access" means Access where governmental institutions or their designees are the primary users having editorial control over programming and services. "Gross Revenue" means all revenue derived directly or indirectly by Comcast or its Affiliates from the operation of the Cable System in the Franchise Area, including without limitation 2 I2/13/2012 Q: I USERSIVAILICOMCASTIAGRIFRANCHISE FINAL-3.DOC monthly and other fees charged Customers for Cable Service including Basic Service, Expanded Basic Service, any expanded Tiers of Cable Service, other Tiers of Cable Service, optional Premium Service, pay-per-view and per-program Channels, Cable Service installation, disconnection, reconnection and change-in-service fees, Leased Access Channel fees, remote control rental fees, late fees and administrative fees, consideration received by Comcast from programmers for carriage of Cable Service on the Cable System and recognized as revenue under generally accepted accounting principles ("GAAP"), revenues from rentals of converters or other Cable System equipment, advertising sales revenues (including local, regional and a pro rata share of national advertising canied on the Cable System in the Franchise Area but excluding commissions paid to an unaffiliated agency), revenues from program guides, additional outlet fees, revenue from the sale or carriage of other Cable Service, and revenues from home shopping. Gross Revenue does not include (i) to the extent consistent with GAAP, Bad Debt, provided, however, that any part of such Bad Debt that is written off but subsequently collected shall be included in Gross Revenue in the period collected; or (ii) any taxes on services furnished by Comcast that are imposed directly on any Customer or user by the State, Town or other governmental unit and that are collected by Comcast on behalf of said governmental unit; or (iii) capital costs or contributions required by this Franchise. Franchise Fees are not a tax and are therefore included in Gross Revenue. "Headend" or "Hub" means a facility for signal reception and dissemination on a Cable System, including cable, antennas, wires, satellite dishes, monitors, switchers, modulators, processors for Broadcast Signals or other signals, and all other related equipment and Facilities. "Incremental Costs" means Comcast's direct and actual material and labor cost (excluding profit) of constructing, relocating or placing additional facilities for the Town, excluding the costs that Comcast would otherwise incur to construct, relocate or place facilities for Comcast including, but not limited to, trenching, pipe bedding, backfilling, compacting, restoring the surface, and other charges, costs or expenses. "Institutional Network" means that part of the Cable System facilities or capacity designated for use by non-residential Customers including communications to, from and among government agencies, schools, libraries and other public agencies. "Interconnect" or "Interconnection" means the provision of Access Channel programming to a geographically contiguous cable system, including technical, engineering, physical, and other necessary components to accomplish, complete and adequately maintain such provisioning. "Late fee" means and includes any assessment, charge, cost, fee or sum, however characterized, that Comcast imposes upon a Customer solely for late payment of a bill is a late fee. "Leased Access Channel" means any Channel or portion of a Channel commercially available for programming in accordance with Section 612 of the Cable Act. "Noncommercial" means, in the context of Access Channels, those particular products and services that are not promoted or sold in order to generate revenue that exceeds the costs of operations for the Town or any Designated Access Provider. T'his term shall not be interpreted to prohibit an Access Channel operator or programmer from soliciting and receiving contributions used 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. 3 12//3/2012 Q: I USERSI VAIL ICOMCASTIAGRIFRANCHISE FINAL-3.DOC "Person" means any natural person, lawful trustee, successor, assignee, transferee, or personal representative, sole proprietorship, partnership, joint venture, association, or limited liability entity or corporation, or any other form of entity or organization. "Public Access" means Access where any member of the general public may be a programmer on a nondiscriminatory basis, subject to operating rules formulated by the Town or its designee. Such rules shall not be designed to control the content of public access programming. Such rules may also address the extent to which and manner in which members of the general public who are not residents of the Town may be programmers on the Access Channel. "Public Way" means land in the Franchise Area acquired for or dedicated to the public and maintained under public authority, including but not limited to public streets, roads, highways, avenues, lanes, alleys, bridges, sidewalks, easements, and similar public properly. "Residential Subscriber" means any Person who receives Cable Service delivered to a Dwelling Unit, excluding such multiple Dwelling Units billed on a bulk-billing basis. "Standard Installation" means a one hundred twenty five (125) foot drop connecting to the exterior demarcation point. "State" means the State of Colorado. "Tier" means a category of Cable Service provided by Comcast for which a separate rate is charged. "Video Programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station, or cable programming provider primarily consisting of full motion video and audio. SECTION 2. GRANT OF FRANCHISE 2.1 Grant (A) The Town hereby grants to Comcast a nonexclusive authorization to make reasonable and lawful use of the Public Ways to construct, operate, maintain, reconstruct, repair and upgrade the Cable System for the purpose of providing Cable Service, subject to this Agreement and applicable law. Comcast shall provide Cable Service, as authorized by this Agreement, in the Franchise Area in accordance with line extension and density provisions as provided herein. The franchise granted by this Agreement is subject to all prior rights, interests, easements, or franchises granted by Town or its predecessors to any Person to any property or Public Way, including the right of the Town to use same for any purpose it lawfully deems fit. This Agreement conveys limited rights and interests in only those Public Ways in which the Town has an actual interest; it is not a warranty of title or interest in any property. (B) Comcast shall comply with the Vail Town Code and the lawful exercise of the Town's police power. Subject to the Town's lawful exercise of its police power, in the event of a conflict between the Vail Town Code and the Agreement, the Agreement shall govern. Comcast acknowledges that the Town may enforce or modify its generally applicable regulatory policies by lawful exercise of the Town's police powers throughout the term of this Agreement, and Comcast agrees to comply with such lawful enforcement or modifications. Comcast reserves the right to challenge provisions of any ordinance, rule, regulation or other enactment of the Town that conflicts with its contractual rights under the Franchise, either now or in the future. This 4 12/13/2012 Q: I USERSIVAILICOMCASTIAGRIFR4NCHISE FINAL-3.DOC Agreement shall not be interpreted to prevent the Town from imposing other conditions, to the extent permitted by law. (C) No rights shall pass to Comcast by implication. Without limiting the foregoing, by way of example and not limitation, this Agreement shall not be a substitute for: any other permit or authorization required for the privilege of transacting and carrying on a business within the Town that is required by the Town; any permit, agreement or authorization required by the Town for Public Way users in connection with operations on or in Public Ways or public property; or any permits or agreements for occupying any other property to which access is not specifically granted by this Agreement. (D) This Agreement is an express authorization to provide Cable Service only. This Agreement is not a bar to the imposition of any lawful conditions on Comcast with respect to non-Cable Service, telecommunications services or information services, whether similar, different or the same as the condition specified herein. This Agreement does not relieve Comcast of any obligation it may have to obtain from the Town an authorization to provide non- Cable Service, telecommunications services or information services or relieve Comcast of its obligation to comply with any such authorization(s) that may be lawfully required. (E) This Agreement shall have no effect on any obligation of Comcast in effect prior to the effective date of this Agreement to indemnify or insure the Town against acts and omissions occurring during the period that the prior franchise agreement was in effect, nor shall it have any affect upon liability to pay Franchise Fees that were due and owed under a prior franchise. 2.2 Use of Public Ways (A) Subject to the Vail Town Code, as amended, Comcast may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, through, below and along the Public Ways, such wires, cables, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the Cable System. (B) Comcast shall install Cable System facilities in a manner that minimizes interference with the use of the Public Ways by others. To protect public health, safety and welfare, the Town may: require that Cable System facilities be installed at a particular time, at a specific place or in a particular manner as a condition of access to a particular Public Ways; deny access if Comcast is not willing to comply with Town's requirements; remove, or require removal of, any facility that is not installed in compliance with the requirements established by Town, or that is installed without prior Town approval of the time, place or manner of installation and charge Comcast for all the costs associated with removal; and require Comcast to cooperate with others to minimize adverse impacts on the Public Ways through joint trenching and other arrangements. 2.3 Term This Agreement shall have a term of ten (10) years, beginning on the Effective Date. 2.4 Effective Date The Effective Date of this Agreement shall be January 1, 2013. /2//3/2012 Q: I USERSI VAILICOMCAS7IAGRIFRANCHISE FINAL-3.DOC 2.5 Competitive Equity (A) Comcast acknowledges and agrees that the Town reserves the right to grant additional franchises to provide Cable Service in the Franchise Area; provided that if any such franchise is granted by the Town which, in the reasonable opinion of Comcast, contains more favorable or less burdensome Material Terms and Conditions than this Agreement, the Town agrees that, within ninety (90) days of Comcast's request, the parties shall amend this Franchise to insure that the regulatory and financial burdens on each entity are materially equivalent. "Material Terms and Conditions" includes without limitation: Franchise Fees; insurance coverage amounts; System build-out requirements; Public, Education and Government Access Channels and support; customer service standards; required reports and related record keeping; and notice and opportunity to cure breaches. The parties agree that this Subsection does not require a word for word identical franchise or authorization for a competitive entity if the regulatory and financial burdens on each entity are materially equivalent. (B) If an application for a new cable franchise is filed with the Town proposing to serve the Franchise Area, in whole or in part, the Town shall make a good faith effort to provide notice of such application upon Comcast prior to acting on the application. (C) Notwithstanding any provisions to the contrary, at any time that a facilities-based Cable Services provider, legally authorized by state or Federal law, makes Cable Services or multiple Channels of Video Programming within the Franchise Area available for purchase by Customers without a franchise or other similar lawful authorization granted by the Town, then Comcast may seek modification pursuant to subsection (A) hereof, or the term of this Franchise shall, upon ninety (90) days written notice from Comcast, be shortened so that the Franchise shall be deemed to expire on a date six (6) months from the first day of the month following the date of Comcast's notice; provided, however, that if the provision of Cable Services or Video Programming by the other facilities-based Cable Services Provider within the Franchise Area is being legally challenged by the Town, the term of this Franchise shall remain unaffected until such legal challenge is concluded. 2.6 Familiarity with Agreement and Acceptance (A) Comcast acknowledges and warrants that it has carefully read and fully comprehends the terms of this Agreement and that it has fully considered the requirements of this Agreement, and finds that the same are commercially practicable at this time and consistent with all local, State and federal laws and regulations currently in effect. (B) By executing this Agreement, Comcast: (1) acknowledges and accepts the Town's legal right to issue and enforce the Agreement; (2) agrees that it will not oppose the Town's lawful intervention in any legal or regulatory proceeding affecting the Cable System; (3) accepts and agrees to comply with every provision of this Agreement; and (4) agrees that the Agreement was negotiated in comptiance with applicable law, and that it will not raise any claim to the contrary. SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS 3.1 Franchise Fee As compensation for the use of the Public Ways, Comcast shall pay as a Franchise Fee to Town, for the duration of this Agreement, an amount equal to five percent (5%) of Comcast's Gross Revenue. 12/13/2012 Q: I USERSI VAILICOMCASTIAGRIF'RANCH/SE F/NAL-3.DOC 3.2 Payments (A) Franchise Fee payments to Town 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 thirty (30) days after said dates. For untimely payments, Comcast shall pay, in addition to the payment or sum due, interest from the due date at the rate of eight percent (8%) per annum until the date the Town receives the payment. (B) No acceptance of payment shall be construed as an accord by Town that the amount paid is the correct amount, nor shall an acceptance of payment be construed as a release of any claim Town may have against Comcast. The period of limitation for recovery of Franchise Fees payable hereunder shall be three (3) years from the date on which payment by Comcast was due or such shorter period of time if so provided by law. (C) A report prepared by a representative of Comcast showing the basis for the computation of the Franchise Fees paid during that period shall either accompany the Franchise Fee payment or be provided under separate cover within ten days of the report. 3.3 Audits (A) On an annual basis, upon thirty (30) days' prior written notice, the Town may conduct an independent audit of Comcast's financial records necessary to ensure compliance with this Agreement. If Comcast cooperates in making all relevant records available upon request, the Town 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. (B) Additional amounts due to the Town as a result of the audit shall be paid within sixty (60) days following written notice to Comcast. If a Franchise Fee underpayment is discovered as the result of an audit, Comcast shall pay, in addition to the amount due, interest at the maximum allowed rate as provided under State law calculated from the date the underpayment was originally due until the date the Town receives the payment. (C) If the audit shows that Franchise Fees have been underpaid by five percent (5%) or more in a calendar year, Comcast shall pay the actual cost of the audit in a total amount not to exceed $10,000. 3.4 Additional Commitments Not Franchise Fees No term of this Agreement shall affect Comcast's obligation to pay Franchise Fees. Although the total sum of Franchise Fee payments and additional commitments set forth elsewhere in this Agreement may total more than five percent (5%) of Gross Revenue in any twelve-month period, Comcast agrees that the additional commitments regarding PEG funding and Access Channels are not Franchise Fees, nor are they to be offset or credited against Franchise Fee payments unless specifically provided by applicable law. 3.5 Payment on Termination Within one hundred twenty (120) days of termination of this Agreement, Comcast shall file with the Town a financial statement, certified by an independent certified public accountant, showing the Gross Revenue received by Comcast since the end of the previous fiscal year. Within forty five (45) days of the filing of the certified statement with the Town, Comcast shall pay any unpaid amounts as indicated. If Comcast fails to satisfy its remaining financial obligations as 7 Il//3/10/2 Q: I USERSIVAILICOMCASTIAGRIFRANCH/SE F/NAL-3.DOC required in this Agreement, the Town may do so by utilizing the funds available in a Letter of Credit or other security provided by Comcast. 3.6 Service Packages If Comcast offers bundled Cable Service and non-Cable Service to Customers, Comcast shall fairly and reasonably allocate revenue with regard to Cable Service. 3.7 Tax Liability The Franchise Fees shall be in addition to all taxes or other levies or assessments now or hereafter required to be paid by businesses by any applicable law including without limitation sales, use, utility and other taxes, and business license fees. SECTION 4. ADMINISTRATION AND REGULATION 4.1 Rates and Charges (A) Comcast's rates and charges for Cable Service shall be subject to regulation by Town to the full extent authorized by applicable federal, State and local laws. Customer billing shall be itemized by service pursuant to FCC Regulation, 47 C.F.R. § 76.1619 or as amended. (B) Comcast will use best efforts to maintain with the Town a current schedule of applicable rates charged for Cable Service provided under this Agreement. The Town recognizes that such rates change periodically, and if the Town clerk has reason to believe that the schedule of rates on file is not up to date, then upon three (3) days advance request, Comcast shall provide the Town with a current and complete schedule of applicable rates and charges for Cable Service provided to Customers in the Town. Nothing in this Subsection shall be construed to require Comcast to file rates and charges under temporary reductions or waivers of rates and charges in conjunction with promotional campaigns. 4.2 No Rate Discrimination All Comcast rates and charges shall be published (in the form of a publicly-available rate card), made available to the public, and shall be non-discriminatory as to all Persons of similar classes, under similar circumstances. Nothing herein shall be construed to prohibit: (1) The temporary reduction or waiving of rates or charges in conjunction with promotional campaigns; (2) The offering of reasonable discounts to similarly situated Persons; or (3) The offering of bulk discounts for multiple Dwelling Units. 4.3 Time Limits Strictly Construed When this Agreement sets forth a time for any act to be performed by Comcast, such time shall be deemed to be of the essence, and any failure of Comcast to perform within the allotted time may be considered a breach of this Agreement. 4.4 Performance Evaluations Special evaluation sessions may be held at any time upon written request and upon not less than thirty (30) days prior notice by the Town during the term of this Agreement. All such evaluation sessions shall be open to the public. Topics that may be discussed at any evaluation session may include those issues surrounding Comcast's failure to comply with the terms of the Agreement 12/13/2012 Q: I USERSI VAILICOMCAS71AGRIFRANCHISE FINAL-3.DOC provided that nothing in this Subsection shall be construed as requiring the renegotiation of this Agreement or any term or provision therein and further provided that this Subsection need not be followed before other legal or equitable remedies within this Agreement. 4.5 Late Fees and Disconnection Comcast'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 throughout the Franchise Area without regard to the neighborhood or income level of the Customers. SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS 5.1 Indemnification (A) Comcast, at its own expense, shall indemnify, defend and hold harmless the Town, its officers, officials, boards, commissions, agents, representatives and employees, from any action or claim for injury, damage, loss, liability, settlement, proceeding, judgment, or cost or expense, including court and appeal costs and attorney 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, erection, operation, maintenance, repair or reconstruction, or any other act done under this Agreement, by or for Comcast, its authorized agents, or by reason of any neglect or omission of Comcast, its authorized agents or its employees. Comcast shall consult and cooperate with the Town while conducting its defense of the Town. (B) The provisions of this Section 5 shall survive the termination of this Agreement unless superseded by indemnification provisions in a new franchise or in federal or state law. (C) Subject to applicable law, Comcast shall indemnify the Town for any damages, including but not limited to damages incurred as a result of delay, payable by the Town related to Comcast's failure to proper(y install, remove, adjust or relocate any of its facilities in the Public Ways in accordance with any lawful relocation required by the Town. (D) Comcast shall also indemnify, defend and hold the Town harmless for any claim for injury, damage, loss, liabiliTy, cost and expense, including court and appeal costs and attorney fees and expenses in any way arising out of any failure by Comcast to secure consents from the owners, authorized distributors or franchisees/licensors of programs to be delivered by the Cable System, provided however, that Comcast will not be required to indemnify the Town for any claims arising out of the use of Access Channels by the Town or its Designated Access Provider or use by the Town of the emergency alert system. 5.2 Indemnification Procedures and Defense (A) If a claim or action arises, the Town or any other indemnified party shall promptly tender the defense of the claim or action to Comcast, which defense shall be at Comcast's expense. The Town may participate in the defense of a claim and Comcast may not agree to any settlement of claims without the Town's written approval, which shall not be unreasonably withheld. (B) The fact that Comcast carries out any activities under this Agreement through independent contractors shall not constitute an avoidance of or defense to Comcast's duty of defense and indemnification. 9 12/13/2011 Q: I USERSIVAILICOMCASTIAGRIFRANCHISE FINAL-3.DOC (C) If separate representation is necessary, such as a conflict of interest between the Town and the counsel selected by Comcast to represent the Town, Comcast shall select other counsel. 5.3 Insurance (A) Comcast shall maintain at all times in full force and effect at its own expense each of the following policies of insurance: (1) Commercial General Liability coverage for bodily injury, personal injury, and property damage with limits of no less than two million dollars ($2,000,000) per occurrence. The general aggregate limit shall be no less than five million dollars ($5,000,000). (2) Commercial Automobile Liability Insurance with minimum combined single limits of at least three million dollars ($3,000,000) each occurrence and five million dollars ($5,000,000) aggregate with respect to each of Comcast's owned, hired and non- owned, or any other vehicles assigned to or used in any activities authorized under or used in conjunction with this Agreement. (3) Employer's Liability with limits of at least one million dollars ($1,000,000). (4) Workers' Compensation insurance shall be maintained during the life of this Agreement to comply with State law for all employees. (B) Each policy shall provide that the insurance shall not be canceled or terminated so as to be out of compliance with these requirements without forty-five (45) days' prior written notice, and ten (10) days' notice for nonpayment of any premium. Comcast shall maintain continuous uninterrupted insurance coverage, in at least the amounts required, until all work required to be performed under the terms of this Agreement is satisfactorily completed and, in the case of Commercial General Liability Insurance, for at least one (1) year after termination of this Agreement. A failure of Comcast to comply with any claim reporting provisions or any breach of an insurance policy warranty shall not affect coverage afforded under the policy to protect the Town. However, if coverage is not afforded under these circumstances, Comcast shall indemnify the Town for losses the Town otherwise would have been covered for as an additional insured. (C) All insurance policies, except Workers' Compensation, shall contain a waiver of transfer rights of recovery (subrogation) against the Town, its officers, officials, agents, and employees for any claims arising out of Comcast's work or service. Comcast shall be responsible for deductibles or self-insured retention. (D) All policies shall contain, or shall be endorsed so that: (1) The Town and its officers, officials, boards, commissions, agents, representatives, and employees 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, Comcast under this Agreement or applicable law, or in the construction, operation, upgrade, maintenance, repair, replacement or ownership of the Cable System; (2) Comcast's insurance coverage shall be primary insurance with respect to the Town and its officers, officials, boards, commissions, agents, volunteers and employees. Any insurance or self insurance maintained by the Town or its officers, officials, boards, 10 12/13/2012 Q: I USERSIVA/LICOMCAS71AGRIFRANCHISE FINAL-3.DOC commissions, agents, representatives, volunteers or employees shall be in excess of Comcast's insurance and shall not contribute to it, provided the occurrence arises out of Comcast's negligence; and (3) Comcast's insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability. (E) Comcast shall furnish the Town with certificates of insurance and an endorsement reflecting additional insured status. The certificates for each insurance policy are to be on standard forms or such forms as are consistent with standard industry practices, and are to be received and approved by the Town at the time of acceptance of this Agreement by Comcast with existing insurance coverage to be maintained by Comcast until that date. Comcast hereby warrants that its insurance policies satisfy the requirements of this Agreement. (F) The insurance limits mandated for any insurance coverage required by this Agreement are not intended to be an indication of exposure nor are they limitations on liability or indemnification. 5.4 Letter of Credit (A) On the Effective Date, Comcast shall provide to the Town as security for the faithful performance by Comcast of all provisions of this Agreement, a letter of credit from a financial institution satisfactory to the Town in the amount of fifly thousand dollars ($50,000) (the "Initial Letter of Credit"). If, on December 31, 2014, Comcast is in compliance with this Agreement, including without limitation the Customer Service Standards, the Town shall release the Initial Letter of Credit, and Comcast shall provide the performance bond required by Section 5.5 hereof. (B) At any time during the term of this Agreement after the Initial Letter of Credit has been released by the Town, if there is a claim by the Town of an uncured breach by Comcast of a provision of this Franchise, then the Town may require and Comcast shall reestablish and provide, as quickly as possible, but no later than thirty (30) days after a request from the Town, a letter of credit from a financial institution satisfactory to the Town in the amount of fifty thousand dollars ($50,000). (C) After completion of the procedures set forth in Section 12.1 or other applicable provisions of this Franchise, the letter of credit may be drawn upon by the Town for purposes that include, but are not limited to the following: (1) Failure of Comcast to pay the Town sums due under this Agreement; (2) Reimbursement of costs borne by the Town to correct violations not conected by Comcast; and (3) Liquidated damages assessed against Comcast as provided in this Agreement. (D) The Town shall give Comcast written notice of any withdrawal under this Subsection upon such withdrawal. Within ten (10) days following receipt of such notice, Comcast shall restore the letter of credit to the amount required under this Agreement. 11 /2//3/2011 Q: I USERSIYA/LICOMCASTIAGRIFRANCHISE FINAL-3.DOC 5.5 Performance Bond Within seven (7) days of the release of the Initial Letter of Credit, Comcast shall provide a performance bond to the Town in the amount of fifly thousand dollars ($50,000) 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 property. Comcast may be required to obtain additional bonds, such as generally applicable construction bonds, in accordance with the Vail Town Code. All bonds shall be in a form approved by the Town Attorney. Comcast shall pay all premiums or costs associated with maintaining the bonds, and shall keep the same in full force and effect at all times. SECTION 6. CUSTOMER SERVICE 6.1 Service Availability (A) Except as otherwise provided herein, Comcast shall provide a standard aerial installation of Cable Service within seven (7) days of a request by any Person in the Franchise Area. Standard Installations shall be done within seven (7) days of a request for service. Comcast shall provide such service: (1) With no extension charge except as specifically authorized by this Agreement; (2) At a non-discriminatory installation charge for a Standard Installation and with additional charges for non-Standard Installations computed according to a non- discriminatory methodology for such installations; and (3) At non-discriminatory monthly rates for all Customers, excepting commercial Customers, Multiple Dweiling Unit Bulk Customers and other lawful exceptions to uniform pricing. (B) No Person shall be refused service arbitrarily. However, for non-Standard Installations or a density of less than twenty five (25) residences per 5280 aerial cable-bearing strand feet of trunk or distribution cable, or sixty (60) residences per 5280 underground trench feet of trunk or distribution cable, Cable Service may be made available on the basis of a capital contribution in aid of construction, including cost of material, labor and easements. Comcast may require that the payment of the capital contribution in aid of construction be borne by such potential Customers and be paid in advance. 6.2 Customer Service Standards Comcast shall comply with the Customer service standards in 47 C.F.R. §§ 76.309, 76.1602, 76.1603 and 76.1619, and any local standards adopted in accordance with applicable law. Comcast acknowledges the Town's ability to enact customer service standards that exceed those enacted by the FCC and the Town acknowledges Comcast's right to recover the costs associated with complying with such standards. Comcast shall not enter into a contract with any Customer that is in any way inconsistent with the terms of this Agreement, or the requirements of any applicable Customer service standards. 6.3 Customer Privacy Comcast shall comply with privacy rights of Customers in accordance with applicable law. 12 Il/13/2012 Q: I USERSIVAlLICOMCASTL9GRIF'RANCHISE F/NAL-3.DOC 6.4 Customer Service Agreement and Manual (A) Comcast shall provide to Customers an accurate, comprehensive service agreement and customer installation packet for use in establishing Customer service. This material shall, at a minimum, contain the following: (1) Comcast's procedure for investigation and resolution of Customer complaints; (2) Services to be provided and rates for such services; (3) Billing procedures; (4) Service termination procedure; (5) A complete statement of the Customer's right to privacy; (6) Equipment policy; and, (7) The name, address and phone number of the Customer service department that is responsible for handling questions and complaints for Comcast. (B) A copy of the current installation packet shall be available to each Customer: (1) at the time of initial installation and at any time the packet is requested by the Customer. SECTION 7. RECORDS 7.1 Required Records (A) Comcast shall at all times maintain: (1) Access to a full and complete set of plans, records and maps showing the location of all Cable System facilities in Public Ways; (2) A copy of all FCC filings on behalf of Comcast, its parent corporations or Affiliates that relate to the operation of the Cable System in the Franchise Area; (3) A list of Comcast's rates and Channel line-ups; and, (4) Financial records as required by Section 3 hereof. (B) The Town, upon reasonable prior written notice to Comcast, may review Comcast's records regarding the operation of the Cable System and the provision of Cable Service in the Franchise Area which are reasonably necessary to monitor and enforce Comcast's compliance with this Agreement, including without limitation any records required to be kept in a public file by Comcast pursuant to FCC rules and regulations. All such records shall be retained by Comcast for at least three (3) years. Comcast shall not deny the Town access to any of Comcast's records on the basis that Comcast's records are under the control of any parent corporation, Affiliate or a third party. The Town may request in writing copies of such records that are reasonably necessary, and Comcast shall provide such copies within thirty (30) days at Comcast's sole expense. If the requested records are too voluminous, or for security reasons cannot be copied or removed, then Comcast may request, in writing within ten (10) days of receipt of such request, that the Town inspect them at Comcast's local offices or at one of Comcast's offices more convenient to Town or its duly authorized agent. If any records of Comcast are not kept in such office and not made available to the Town upon written request, and if the Town determines that an examination of such records is necessary for the enforcement 13 12//3/20/2 Q: I USERSIVA/LICOMCASTIAGRIFRANCHISE FINAL-3.DOC of this Agreement, then all reasonable travel expenses incurred in making such examination shall be paid by Comcast. (C) Comcast shall maintain at its business office, in a file available for public inspection during regular business hours, those documents required pursuant to FCC rules and regulations. (D) Comcast shall keep an accurate and comprehensive compilation of any and all Customer complaints received and Comcast's actions in response to those complaints, in a manner consistent with the privacy rights of Customers. Comcast shall provide an executive summary report to the Town on an annual basis within one hundred twenty (120) days of the end of each year that shall include the following information: (1) Nature, date and type of Customer complaints escalated to Comcast by the Town in writing and date complaints were resolved; (2) Average response time for service calls; (3) Phone activity report; (4) A summary of the previous year's activities regarding the development of the Cable System, including, beginning and ending plant miles constructed; (5) An annual report of the company on Form 10-K that is filed with the U.S. Securities and Exchange Commission; and, (6) A copy of all Comcast's rules and regulations applicable to Customers. 7.2 Proprietary Information If Comcast provides records to the Town, the Town agrees to keep confidential any proprietary information to the extent permitted by law. Comcast shall be responsible for clearly and conspicuously identifying the work proprietary, and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under applicable law. 7.3 Copies of Federal and State Reports Within thirty (30) days of the Town's written request, Comcast shall submit to the Town copies of any pleading, application, notification, communication or document of any kind, submitted by Comcast or an Affiliate to any federal, State or local court, regulatory agency or other government body if such documents relate to the operations of the Cable System. Comcast 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 the Cable System, Comcast shall make such documents available to the Town upon the Town's written request. SECTION 8. PROGRAMMING 8.1 Broad Programming Categories (A) Comcast shall provide at least the following initial broad categories of programming to the extent such categories are reasonably available. • Educational programming; 14 I2/13/2012 Q: I USERSIVAILICOMCASTIAGRIFRANCHISE FINAL-3.DOC • News, weather and information; • Sports; • General entertainment including movies; • Foreign language programming; • Children's programming; • Family oriented programming; • Arts, culture, performing arts programming; • Science and documentary programming; • National/international news; and • Local/regional news. (B) Comcast shall not delete or so limit as to effectively delete any broad category of programming within its control without prior written notice to the Town. (C) In the event of a modification proceeding under federal law, the mix and quality of Cable Service provided by Comcast shall follow the guidelines of Federal law. 8.2 Obscenity Comcast shall not transmit, or permit to be transmitted, over any Channel subject to its editorial control any programming which is obscene under applicable federal, State or local laws. 8.3 Services for the Disabled In providing Cable Service to the disabled, Comcast shall comply with the Americans With Disabilities Act, as amended. 8.4 Parental Control Device Upon request by any Customer, Comcast shall make available at no charge a parental control device to enable a Customer to control access to both the audio and video portions of any Channels. Comcast shall inform its Customers of the availability of the device at the time of their initial subscription and upon request. 8.5 Complimentary Cable Service Comcast, upon request, shall provide without charge, a Standard Installation and one outtet of Basic Service to those buildings now existing, acquired or hereafter constructed that are either owned and occupied or leased and occupied by the Town, its designee or other governmental entity, including without limitation fire stations, police stations, libraries, schools and the Access studio, provided that they are already served or are within one hundred twenty-five (125) feet of the Cable System. The Cable Service provided shall not be distributed beyond the originally installed outlet without authorization from Comcast, which shall not be unreasonably withheld. In the case of leased facilities, the recipient of service is responsible for securing approval for appropriate right of entry suitable to Comcast in its reasonable discretion. The Cable Service provided shall not be used for commercial purposes or in golf course clubhouses. For new hookups, Comcast shall not provide an outlet to such buildings where a non-Standard Installation 15 12//3/2012 Q: I USERSIVAIL ICOMCASTIAGRIFRANCHISE FINAL-3.DOC is required, unless the Town or building owner/occupant agrees to pay the cost of the non- Standard Installation. SECTION 9. ACCESS 9.1 Access Channels (A) Comcast shall provide, at no charge, two (2) Public, Educational or Governmental (PEG) Access Channels. (B) The Town may delegate management of the PEG Access Channels to a Designated Access Provider. (C) All PEG Access Channels provided for in this Agreement shall be carried system-wide in the Franchise Area, and shall be provided on the Basic Service tier unless otherwise agreed to by the parties. (D) The technical quality of the PEG Access Channels shall not be lower than the quality of other Channels on the same tier of service, at the same technical quality that programming is provided to Comcast by the Town or its Designated Access Provider. (E) The Town shall establish and enforce rules for use of the PEG Access Channels to assure nondiscriminatory access to the Channels to similarly situated users; and to promote use and viewership of the channels, consistent with applicable law. PEG Access Channels may not be used for commercial purposes. (F) Comcast may not exercise any editorial control over the content of programming on the PEG Access Channels. 9.2 Triggers for Additional Access Channels The Town may require Comcast to make available up to one (1) additional Access Channel when the Access Channels required by Subsection 9.1 are used for locally scheduled original programming for at least forty (40) hours per week between 8:00 a.m. and midnight during any consecutive ten (10) week period, and then Comcast shall make available, upon written request, within six (6) months, one additional Access Channel for Access Programming purposes. The programming of any additional Access Channel shall contain distinct and non-repetitive programming of the other Access Channels. 9.3 Underutilized Access Channels Comcast and the Town agree that it is their mutual goal to fully and efficiently use the Channel capacity of the Cable System, which may include allowing Comcast to use underutilized Access Channels. If Comcast believes that any Access Channel is underutilized, Comcast may file a request with the Town to use that Access Channel. The Town shall in its sole discretion render a decision regarding the matter within six (6) months of receiving the request. Should the Town find that the Access Channel may be used by Comcast, then Comcast may begin using such Channel thirty (30) days after receipt of the decision, until such time as the Town requires that the Channel again be available for Access purposes in accordance with Section 9.2. 9.4 Access Channel Location (A) Comcast shall use its best efforts to minimize the movement of Access Channel assignments. Comcast shall provide to the Town a minimum of ninety (90) days prior written 16 12/13/2012 Q: I USERSI VAILICOMCAS7IAGRIFRANCNISE F/NAL-3.DOC notice, prior to any relocation of its Access Channels, unless the change is required by federal law, in which case Comcast shall give the Town the maximum notice possible. Comcast shall pay the Town two thousand dollars ($2,000) per Access Channel, per move. (B) Comcast, at Comcast's expense, shall include notice of Access Channel changes in its regular monthly billing. 9.5 Access Channel Promotion Comcast shall provide the Town the opportunity to include promotional notices on electronic bills on not more than two occasions per year. Comcast shall be provided an opportunity to review all such promotional notices. The Town shall be responsible for any costs associated with the provision of such notices. 9.6 PEG Fee (A) Within ninety (90) days of a written request by the Town, Comcast shall collect and provide to Town an amount equal to twenty-five cents ($0.25) per Residential Subscriber per month as capital support for PEG access ("PEG Fee"). Comcast shall make PEG Fee payments quarterly, no later than thirty (30) days following the end of the quarter. The Town has the right to reduce or increase the PEG Fee up to a maaLimum of fifty cents ($0.50) per Residential Subscriber per month, after holding a public hearing and inviting public comment on the matter. The Town shall notify Comcast in writing of any changes to the PEG Fee at least sixty (60) days prior to such change. (B) Within ninety (90) days of a written request by the Town, Comcast shall collect and provide to the Town a PEG Fee in an amount not to exceed one-quarter-of-one percent (0.25%) of Gross Revenues derived from the operation of the Cable System to provide Cable Services to any Person who receives Cable Services delivered to a Dwelling Unit in the Franchise Area. (C) The Town may elect to receive PEG Fees calculated under either Subsection (A) or Subsection (B) of this Section, but not both. (D) To the extent permitted by law, the PEG Fee may be itemized on Customer billing statements and recovered from Customers over the term of this Agreement. Comcast shall not be responsible for paying the PEG Fee with respect to gratis or Bad Debt accounts. 9.7 Return Lines (A) Comcast shall maintain the return lines from all existing Access broadcast facilities to the Headend in order to enable the distribution of programming to Customers on the Access Channels. Comcast shall continuously maintain these return lines throughout the term of the Agreement, unless any of these locations are no longer used in the future to originate Access programming. (B) Within eighteen (18) months of a written request by the Town, Comcast shall construct and maintain additional return lines to other locations in the Franchise Area; provided however, that Comcast's construction costs shall be paid by the Town or its Designated Access Provider. (C) Return Lines shall be maintained by Comcast in the same manner as the rest of the Cable System so that Access Channels may be viewed at the same quality that is provided by the Town or its Designated Access Provider. 17 12/13/2012 Q: I USERSI YAILICOMCASTvlGRIFRANCHISE F/NAL-3.DOC SECTION 10. USE OF PUBLIC WAYS 10.1 Construction and Maintenance (A) The Cable System shall be constructed and maintained so as not to interfere with sewers, water pipes, or any other property of Town, or with any other pipes, wires, conduits, pedestals, structures or other facilities installed in Public Ways. (B) In its maintenance and construction of the Cable System, Comcast shall comply with the Vail Town Code. All construction and maintenance of Comcast's facilities within Public Ways shall, regardless of who performs the construction, be and remain Comcast's responsibility. (C) Comcast's contractors and subcontractors shall be licensed and bonded in accordance with the Town's ordinances, regulations and requirements. Work by contractors and subcontractors is subject to the same restrictions, limitations and conditions as if the work were performed by Comcast. Comcast shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were perfortned by it, and shall ensure that all such work is performed in compliance with this Agreement and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Comcast's responsibility to ensure that contractors, subcontractors or other Persons performing work on Comcast's behalf are familiar with the requirements of this Agreement and other applicable laws governing the work performed by them. (D) Comcast shall give reasonable notice to private property owners of construction work in adjacent Public Ways. (E) If Comcast disturbs, alters, or damages any public or private property, Comcast shall at its own expense replace and restore any such Public Way or property to a condition equal to the condition of the property existing immediately prior to the disturbance. (F) The Town may inspect any of Comcast's facilities or construction upon at least twenty- four (24) hours' notice, or, in case of emergency, without prior notice, and the Town may charge Comcast generally applicable inspection fees therefor. If an unsafe condition is found, the Town, in addition to taking any other action permitted under applicable law, may order Comcast to make necessary repairs and alterations to correct the unsafe condition by a time the Town establishes. The Town may correct, inspect, administer and repair the unsafe condition if Comcast fails to do so, and to charge Comcast therefor. (G) On notice from Town that any work is being conducted contrary to this Agreement, or in violation of the terms of any applicable law or permit, the work may immediately be stopped by Town. The stop work order shall: be in writing; be given to the Person doing the work or posted on the work site; be sent to Comcast by mail; indicate the nature of the alleged violation or unsafe condition; and establish conditions under which work may be resumed. 10.2 Location and Movement of Facilities (A) After the Town or any franchisee or permittee of the Town notifies Comcast of a proposed Public Way excavation, or design of any project impacting facilities in the Public Way, Comcast shall, at Comcast's expense, mark on the surface all of its located underground facilities within the area of the proposed excavation in accordance with applicable law. 18 Il//3/2012 Q: I USERSIVAILICOMCAST49GRIFR9NCHISE F/NAL-3.DOC (B) The Town may remove or disconnect Comcast's facilities and equipment located in the Public Way or on any other property of the Town in the case of an emergency. Except in an emergency, the Town shall provide reasonable notice to Comcast prior to taking such action and shall provide Comcast with the opportunity to perform such action. Following notice by the Town, Comcast shall remove, replace, relocate, modify or disconnect any of its facilities in a Public Way or on any other property of the Town, except that the Town 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 Comcast's facilities or equipment. If Comcast fails to complete this work within the time prescribed and to the Town's satisfaction, the Town may cause such work to be done at Comcast's expense. Comcast shall remit payment to Town within thirty (30) days of receipt of an itemized list of those costs. (C) If the Town requires Comcast to relocate its facilities located in a Public Way, the Town shall make a reasonable effort to provide Comcast with an alternate location within the Public Way. If funds are generally made available to users of the Public Way for such relocation, Comcast shall be entitled to its pro rata share of such funds. (C) At the request of any Person holding a valid permit and upon reasonable advance notice, Comcast shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, eyuipment or other item. The cost of such temporary change may be charged by Comcast to the permit holder, and Comcast may require the estimated payment in advance. Such payment is an exchange between Comcast and the permittee, and the Town will not be the administrator of these transactions. 10.3 Acquisition of Facilities Upon Comcast's acquisition of Cable System related facilities in any Public Way, or upon the addition or annexation to the Town of any area in which Comcast owns or operates any facility, such facilities shall be subject to the terms of this Agreement. The Town acknowledges that inclusion of revenue from Customers affected by annexation to the Town will require ninety (90) days to make changes in the billing system affecting those Customers. 10.4 Reservation of Public Ways Nothing in this Agreement shall prevent the Town from constructing any public improvement, or from permitting other utilities the use of the Public Ways. If the Cable System interferes with the construction, maintenance or repair of any Public Way or public improvement, the Cable System shall be removed or relocated in the area the Town directs. If the Town requires Comcast to relocate its facilities located within the Public Way, the Town shall make a reasonable effort to provide Comcast with an alternate location within the Public Way. All such removal or relocation shall be preceded by sixty (60) days written notice or such additional time as may be provided by Town. Should Comcast fail to remove, adjust or relocate its facilities by the date established by the Town, the Town may effect such removal, adjustment or relocation at Comcast's sole expense. If funds are generally made available to users of the Public Way for such relocation, Comcast shall be entitled to its pro rata share of such funds. 10.5 Discontinued Facilities (A) When Comcast intends to discontinue using any facility within a Public Way, Comcast shall submit to Town a complete description of the facility and the date on which Comcast 19 I2//3/2012 Q: I USERSIVA/LICOMCASTIAGR IFR4NCHISE F/NAL-3.DOC intends to discontinue using the facility. Comcast may remove the facility or request that the Town allow it to remain in place. Notwithstanding Comcast's request that any such facility remain in place, the Town may require Comcast to remove the facility from the Public Way or modify the facility to protect the public health, welfare, safety and convenience. The Town may require Comcast to perform a combination of modification and removal of the facility. (B) Comcast shall complete such removal or modification in accordance with a schedule set by the Town. Until Comcast removes or modifies the facility as directed by the Town, or until the rights to and responsibility for the facility are accepted by another Person having authority to construct and maintain such facility, Comcast shall be responsible for the facility, as well as maintenance of the Public Way, in the same manner and degree as if the facility were in active use, and Comcast shall retain all liability for such facility. (C) If Comcast abandons any facilities, the Town may choose to use such facilities for any purpose whatsoever. 10.6 Use of Conduit or Ducts (A) The Town may install or affix and maintain wires and equipment owned by the Town for Town purposes in or upon any of Comcast's ducts or conduits in the Public Ways, without charge to the Town, to the extent space therein or thereon is reasonably available, and pursuant to all applicable ordinances and codes. For purposes of this Subsection, "Town purposes" includes, but is not limited to, the use of the structures and installations for fire, police, traffic, water, telephone, or signal systems, but not for Cable Service in competition with Comcast. Comcast shall not deduct the value of such use of its facilities from its Franchise Fee payments or from other fees payable to the Town. (B) Comcast acknowledges that the Public Ways have a finite capacity for containing conduit and facilities. Therefore, Comcast agrees that when the Town determines it is impracticable to permit construction of an underground conduit system by any other Person which may at the time have authority to construct or maintain conduits or ducts in the Public Ways, but excluding Persons providing Cable Service in competition with Comcast, the Town may require Comcast to afford to such Person the right to use Comcast's surplus ducts or conduits in common with Comcast, pursuant to the terms and conditions of an agreement for use of surplus ducts or conduits entered into by Comcast and the other Person. Nothing herein shall require Comcast to enter into an agreement with such Person if, in Comcast's reasonable determination, such an agreement will compromise the integrity of the Cable System. 10.7 Undergrounding Where electric and telephone utility wiring is underground, all Cable System lines, wiring and equipment shall also be placed underground with other wireline service at no expense to the Town. Related equipment, such as pedestals, shall be placed in accordance with applicable Town requirements. In areas where either electric or telephone utility wiring are aerial, Comcast may install aerial cab(e, except when a property owner or resident requests underground instaltation and agrees to bear the additional cost in excess of aerial installation. 10.8 Tree Trimming Comcast may prune or cause to be pruned, using proper pruning practices, any tree in any Public Way which interferes with the Cable System. Comcast shall comply with all Town requirements 20 12/13/10l1 Q: I USERSIVAlLICOMCASTIAGRIFRANCHISE FlNAL-3.DOC regarding tree trimming. Except in emergencies, Comcast may not prune trees at a point below thirty (30) feet above sidewalk grade without seven (7) days prior written notice to the owner or occupant of the premises abutting the Public Way in or over which the tree is growing. The owner or occupant of the abutting premises may prune such tree at his or her own expense during this one (1) week period. If the owner or occupant fails to do so, Comcast may prune such tree at its own expense. For purposes of this Subsection, emergencies exist when it is necessary to prune to protect the public or Comcast's facilities from imminent danger only. 10.9 GIS Mapping Comcast shall provide the Town with records of Comcast's trunk and distribution facilities in the Franchise Area in a standard geographic information (GIS) format within thirty (30) days of receipt of written request or longer if agreed to by the parties. SECTION 11. CABLE SYSTEM DESIGN AND TECH1vICAL STANDARDS 11.1 Technical Performance The technical performance of the Cable System shall meet or exceed all applicable technical standards authorized or required by law, including FCC technical standards as they may be amended from time to time, regardless of the transmission technology utilized. The Town shall have the authority provided by law to enforce compliance with these technical standards. 11.2 Cable System Performance Testing (A) Comcast shall, at its expense, perform all tests on the Cable System required by the FCC (including FCC required test points located in the Franchise Area) and shall maintain written records of its test results in accordance with FCC requirements. Copies of such test results shall be provided to the Town upon request. (B) All required tests may be witnessed by representatives of the Town. Upon request, Comcast wil( notify the Town before any required technical proof-of-performance or other testing occurs. (C) Comcast shall promptly take all necessary measures to correct any performance deficiencies and prevent their recurrence. Sites shall be re-tested within five (5) days following correction until correction has been confirmed and satisfactory results are obtained. 11.3 Standby Power Comcast shall provide standby power generating capacity at the Cable System Headend capable of providing at least twelve (12) hours of emergency operation. Comcast shall maintain standby power supplies that will supply back-up power of at least two (2) hours duration throughout the distribution networks, and four (4) hours duration at all nodes and hubs. SECTION 12. VIOLATIONS AND REVOCATION 12.1 Procedure for Remedying Violations (A) If the Town believes that Comcast has failed to perform any material obligation of this Agreement, the Town shall notify Comcast in writing, stating with specificity, the nature of the alleged violation. Comcast shall have thirty (30) days from the receipt of such notice to: 21 /2/!3/2011 Q: I USERSIVAILICOMCAS7IAGRIFRANCHISE FINAL-3.DOC (1) Respond to the Town, contesting the Town's assertion that a violation has occurred, or notifying the Town that violation cannot be cured within thirty (30) days because of the nature of the alleged violation, and requesting a hearing in accordance with Subsection (B), below; or (2) Cure the violation. (B) If Comcast does not cure the violation within thirty (30) days, or denies the violation and requests a hearing, the Town shall set a public hearing on the vio(ation. The Town shall provide not less than seven (7) days prior written notice of the hearing. At the hearing, Comcast shall be provided an opportunity to be heard, to present and question wirnesses, and to present evidence in its defense. (C) If, after considering the evidence presented at the public hearing, the Town Council determines that a violation exists, the Town may order Comcast to remedy the violation within fourteen (14) days or within such other reasonable timeframe agreed to by the parties. If Comcast does not remedy the violation within such time to the Town's reasonable satisfaction, the Town may: (1) Assess and collect monetary damages in accordance with this Agreement; (2) Terminate this Agreement; and/or, (3) Pursue any other legal or equitable remedy available under this Agreement or applicable law. 12.2 Alternative Remedies (A) No provision of this Agreement shall bar the right of either party to seek or obtain judicial relief from a violation of any provision of the Agreement or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this Agreement nor the exercise thereof shall be deemed to bar or otherwise limit the right of either party to recover monetary damages, as allowed under applicable law, or to seek and obtain judicial enforcement of obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. (B) The Town does not waive any right, immunity, limitation or protection otherwise available to the Town, its officers, officials, Boards, commissions, agents, or employees under any law, including without limitation Section 635A of the Cable Act. Comcast shall not have any monetary recourse against the Town, or its officers, officials, Board, commissions, agents or employees for any loss, costs, expenses or damages arising out of any provision of this Agreement or the enforcement thereof, subject to applicable law. 12.3 Liquidated Damages (A) The Town and Comcast recognize the delays, expense and unique difficulties involved in proving in a legal proceeding the actual loss suffered by the Town as a result of a violation by Comcast of this Agreement. Accordingly, instead of requiring such proof of actual loss, the Town and Comcast agree that Comcast shall pay to the Town the sums set forth in this Subsection. Such amounts are agreed by both parties to be a reasonable estimate of the actual damages the Town would suffer in the event of Comcast's violation. 22 I2//3/2012 Q: I USERSI VAILICOMCASTIAGRIFRANCH/SE F/NAL-3.DOC (B) In addition to any other remedy, the Town in its sole discretion may, after following the procedures as provided in this Section 12.1, charge to and collect from Comcast the following liquidated damages per day, for each day, or part thereof, the violation continues: (1) For failure to provide data, documents, reports or information or to cooperate with the Town during an application process or Cable System review or as otherwise provided herein: one hundred fifty dollars ($150). (2) For failure to make timely PEG Fee or Franchise Fee payments: two hundred fifty dollars ($250). (3) For failure to comply with any other provision of this Agreement or Customer Service Standards or the Vail Town Code: one hundred fifty dollars ($150). (C) Each violation shall be considered a separate violation for which separate liquidated damages can be imposed. In no event shall liquidated damages be imposed for a period greater than 120 days. (D) Comcast shall have thirty (30) days to pay the liquidated damages. If not so paid, the Town may draw on any bond or Letter of Credit. The Town shall give Comcast written notice of any such draw, and within seven (7) days of such notice, Comcast shall restore the bond or Letter of Credit to the amount required under this Agreement. 12.4 Revocation (A) The franchise provided by this Agreement may be revoked and all rights and privileges rescinded if a material breach of the Agreement is not cured, or in the event that: (1) Comcast attempts to evade any material provision of this Agreement or to practice any fraud or deceit upon the Town or Customers; (2) Comcast makes a material misrepresentation of fact in the negotiation of this Agreement; (3) Comcast abandons the Cable System, or terminates the Cable System's operations; (4) Comcast fails to restore service to the Cable System after three (3) consecutive days of an outage or interruption in service; except in the case of an emergency or during a force majeure occurrence, or when approval of such outage or interruption is obtained from the Town; or (5) Comcast becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt, there is an assignment for the benefit of Comcast's creditors, or all or part of Cable System is sold under an instrument to secure a debt and is not redeemed by Comcast within thirty (30) days from said sale. (B) Additionally, the franchise granted in this Agreement may be revoked one hundred twenty (120) days after the appointment of a receiver or trustee to conduct the business of Comcast, at the option of the Town and subject to applicable law, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless directed otherwise by a court of competent jurisdiction. 23 12/13/10/1 Q: I USERSIVA/LICOMCASTIAGRIFRANCHISE FlNAL-3.DOC (C) If there is a foreclosure or other involuntary sale of the whole or any part of the plant, property and equipment of Comcast, the Town may serve notice of revocation on Comcast and to the purchaser at the sale, and the rights and privileges of Comcast under this Agreement shall be revoked thirty (30) days after service of such notice, unless: (1) The Town has approved the transfer of the Agreement, in accordance with the procedures set forth in this Agreement and as provided by law; and (2) The transferee has agreed to assume and be bound by all terms of this Agreement. 12.5 Purchase of the Cable System If at any time this Agreement lawfully terminates, the Town shall have the option to purchase the Cable System; provided that nothing in this Agreement shall limit or expand the Town's right of eminent domain under State law. SECTION 13. TRANSFER 13.1 Transfer of Ownership or Control (A) The Cable System and this Agreement shall not be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right, interest or property therein pass to or vest in any Person or entity without the prior written consent of the Town, which consent shall be by the Town Council, acting by ordinance or resolution. (B) Comcast shall promptly notify the Town of any actual or proposed change in control of Comcast. The word "control" as used herein is defined as an acquisition of 51% or greater ownership interest in Comcast. Such change of control of Comcast shall make this Agreement subject to cancellation unless and until the Town has consented in writing. (C) The parties to the transfer shall make a written request to the Town for its approval of a sale or transfer or change in control and shall furnish all information required by law. (D) In seeking the Town's consent to any transfer, the proposed transferee or controlling entity shall indicate whether it: (1) Has ever been convicted or held liable for acts involving deceit including any violation of federal, State or local law or regulations, or is currently under an indictment, investigation or complaint charging such acts; (2) Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against the proposed transferee by any court of competent jurisdiction; (3) Has pending any material legal claim, lawsuit, or administrative proceeding arising out of or involving a Cable System or the provision of Cable Services; (4) Is financially solvent, by submitting financial data including financial statements that are audited by a certified public accountant who may also be an officer of the transferee or controlling entity, along with any other data that is lawfully required; and (5) Has the financial, legal and technical capability to enable it to maintain and operate the Cable System for the remaining term of the Agreement. 24 /2//3/20/1 Q: I USERSIVAILICOMCASTIAGRIFRANCHISE FINAL-3.DOC (E) The proposed transferee shall provide complete information regarding any potential impact of the transaction on Customer rates and service, as well as any other documentation reasonably related to the proposed transaction and consistent with applicable law which, in the reasonable discretion of the Town are necessary to understand the proposed transaction. (F) The Town shall act on the request within one hundred twenty (120) days of receipt of the FCC Form 394 application and all information expressly required by this Agreement and applicable law, provided it has received a complete application. Subject to the foregoing, if the Town fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted unless the requesting party and the Town agree to an extension of time. (G) Within thirty (30) days of any transfer, Comcast shall file with the Town a copy of the deed, agreement, lease or other written instrument evidencing such transfer, certified correct by Comcast and the transferee, and the transferee shall file its written acceptance agreeing to be bound by all terms of this Agreement, subject to applicable law. In the event of a change in control in which Comcast is not replaced by another entity, Comcast will continue to be bound by all terms of the Agreement, subject to applicable law, and will not be required to file an additional written acceptance. The approval of any transfer shall not waive any rights of Town to subsequently enforce noncompliance issues relating to this Agreement. If 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. (H) In reviewing a transfer request, the Town may inquire into the legal, technical and financial qualifications of the transferee, and Comcast shall assist the Town in so inquiring. The Town may condition said transfer upon such terms as it deems reasonably appropriate, consistent with applicable law and reasonably related to the qualifications of the prospective transferee to comply with this Agreement or the resolution of outstanding and unresolved issues of noncompliance with this Agreement by Comcast. (I) Notwithstanding anything to the contrary in this Subsection, the prior approval of the Town shall not be required for any sale, assignment or transfer of the Agreement or the Cable System to an intracompany entity controlling, controlled by or under the same common control as Comcast, provided that the proposed assignee or transferee shall show financial responsibility as may be determined necessary by the Town and shall agree in writing to comply with all provisions of the Agreement. Further, Comcast may pledge the assets of the Cable System for the purpose of financing without the consent of the Town; provided that such pledge of assets shall not mitigate Comcast's responsibilities to meet its obligations under this Agreement. SECTION 14. MISCELLANEOUS 14.1 Cumulative Rights Subject to applicable law, all rights and remedies given to the Town or retained by the Town in this Agreement 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 every right and remedy given by this Agreement or otherwise existing may be exercised as often and in such order as deemed expedient by the Town, and the exercise of one right or remedy shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy. 25 12/13/10/2 Q: I USERSI VAILICOMCASTIAGRIFRANCHISE FINAL-3.DOC 14.2 Costs to be Borne by Comcast Comcast shall pay for all costs of publication of this Agreement, and any and all notices prior to any public meeting or hearing provided for pursuant to this Agreement in accordance with the Vail Town Code or Charter. 14.3 Binding Effect This Agreement shall be binding upon the parties hereto, their permitted successors, transferees and assigns. 14.4 Modification This Agreement may be modified only by written agreement between the parties. 14.5 Governing Law and Venue This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Colorado, the Cable Act, as amended, any applicable rules, regulations and orders of the FCC, as amended, and any other applicable local, State and federal laws, rules, and regulations. The venue for any dispute related to a violation of this Agreement shall be in an appropriate state court of competent jurisdiction in Eagle County, Colorado. 14.6 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. 14.7 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. 14.8 Severability If any provision of this Agreement is determined to be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other provision of this Agreement. 14.9 Force Majeure Comcast shall not be held in violation of this Agreement for any act caused by circumstances reasonably beyond the ability of Comcast to anticipate and control, including war, riots, civil disturbances, floods, severe adverse weather conditions or other natural catastrophes, labor stoppages or power outages exceeding back-up power supplies. 14.10 Entire Agreement This Agreement represents 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. 26 /2/13/20/2 Q: I USERSIYAlLICOMCAS7IAGRIF'RANCH/SE F/NAL-3.DOC 14.11 Notices Each party shall maintain and file with the other a local address for the service of notices by mail. All notices shall be sent to such respective address, and such notices shall be effective upon the date of mailing. On the Effective Date, the following are the addressed on file: Comcast: Comcast 8000 East IliffAvenue Denver, CO 80231 Attn: Government Affairs With a copy to: Comcast 281 Metcalf Road, Suite 110 Avon, CO 81620 Attn: General Manager 27 /1/13/1011 Q: I USERSI VA/LICOMCASTIAGRIFRANCHISE FINAL-3.DOC The Town: Town of Vail 75 South Frontage Road Vail, CO 81657 Attn: Town Manager IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. ATTEST: Lorelei Donaldson, Town Clerk APPROVED AS TO FORM: J. Matthew Mire, Town Attorney COMCAST OF COLORADO VI, LLC By: Its: STATE OF COLORADO ) ) ss. COUNTY OF ) TOWN OF VAIL, COLORADO ��, Mayor ��� � The foregoing instrument was subscribed, sworn to and acknowledged before me this day of , 2012, by as of Comcast of Colorado VI LLC. My commission expires: (S E A L) Notary Public 28 12//3/1012 Q: I USERSI VAILICOMCAS7IAGRIFRANCHISE FINAL-3.DOC