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.
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READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED
this 18th day of December, 2012.
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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
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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
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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.
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"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
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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.
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"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
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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.
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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.
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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
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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
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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.
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(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,
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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.
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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.
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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
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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;
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• 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
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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
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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.
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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.
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(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
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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
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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:
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(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.
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(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.
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(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.
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(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.
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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.
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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
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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
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