HomeMy WebLinkAbout20073173 RESOLUTION
RE: GRANT CABLE TELEVISION FRANCHISE TO, AND APPROVE CABLE FRANCHISE
AGREEMENT WITH, K2 COMMUNICATIONS, LLC, AND AUTHORIZE CHAIR TO SIGN
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS,the Board has been presented with a Cable Franchise Agreement between the
County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld
County, and K2 Communications, LLC, with terms and conditions being as stated in said
agreement, and
WHEREAS, on October 8, 2007, a hearing was held before the Board of County
Commissioners to consider the Cable Franchise Agreement with K2 Communications, LLC, and
WHEREAS, David Beumer, representing K2 Communications, LLC, was present at said
hearing, and
WHEREAS,the Board of County Commissioners heard all of the testimony and statements
of those present, studied the application for a cable television franchise and all the evidence
presented in the matter, and, having been fully informed, deems it advisable to grant said
Franchise and approve said Cable Franchise Agreement, a copy of which is attached hereto and
incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Franchise Agreement between the County of Weld, State of Colorado,
by and through the Board of County Commissioners of Weld County, and K2 Communications,
LLC, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said agreement.
2007-3173
ORD94
k2,' Cg dir2v,( ON-IT) /i-o T- O 7
CABLE TELEVISION FRANCHISE - K2 COMMUNICATIONS, LLC
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the 8th day of October, A.D., 2007.
BOARD OF COUNTY COMMISSIONERS
�,'r�,e, \ WELD COUNTY, COLORADO
•
ATTEST: j�J+t.14 j/t/ ' 6�� ,l. �� XCUSED
4j,
avid E. Long, Chair
Weld County Clerk to the : + ...
tqb
®�+ William H. J , Pro-Tem
BY: v L�:.J S/!�t•�r�
De's ty Cle to the Boar'
Wi • m F. Garcia
PP ' `� ARM: 94- °f"P
Robert D. Masden
nty Attorney a �
Douglas ademacher
Date of signature: 1131/07
2007-3173
ORD94
WELD COUNTY, COLORADO
CABLE TELEVISION FRANCHISE
2007-3173
CABLE TELEVISION FRANCHISE
This Cable Television Franchise ("Franchise") is entered into in Weld County, Colorado,
this CA"' day of %(-),v\jo , 2007, by and between the County of Weld, a political subdivision of
the State of Colorado, by and through its Board of County Commissioners of the County of Weld,
(hereinafter "County") and K2 Communications, LLC (hereinafter "Grantee"). The County and
Grantee are sometimes referred to hereinafter collectively as the "parties."
WHEREAS, County has identified the future cable-related needs and interests of the
County and its citizens, has considered the financial, technical and legal qualifications of Grantee,
and has determined that Grantee's plans for operating and maintaining its cable system are
adequate, in a full public proceeding affording due process to all concerned; and
WHEREAS, the public has had adequate notice and opportunity to comment on Grantee's
proposal to provide cable service within the County; and
WHEREAS, County has a legitimate and necessary regulatory role in ensuring the
availability of state-of-the-art cable communications service, the high technical capability and
reliability of a cable system in the franchise area, the availability of local programming and quality
customer service; and
WHEREAS, diversity in cable service is an important policy goal and the Grantee's cable
system should offer a broad range of programming services; and
WHEREAS, flexibility to respond to changes in technology and subscriber interests within
the cable service market should be an essential characteristic of this Franchise; and
WHEREAS, the County is authorized by applicable law to grant one or more nonexclusive
franchises to construct, operate and maintain a cable system or systems within the boundaries of the
County.
NOW, THEREFORE, in consideration of the mutual promises made herein, and other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
County and Grantee do hereby agree as follows:
SECTION 1. DEFINITIONS
For the purposes of this Franchise and the Exhibits attached hereto, the following terms, phrases,
words and their derivations shall have the meanings given herein. When not inconsistent with the
context, words used in the present tense include the future, words in the plural include the singular,
and words in the singular include the plural. Words not defined shall be given their common and
ordinary meaning. The word"shall" is always mandatory and not merely directory.
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1.1 "Access" means the availability for noncommercial use by various governmental and
educational agencies, institutions, organizations, and other groups and individuals in the
community, including the County and its designees, of particular Channels on the Cable System to
distribute programming to subscribers, as permitted under applicable law.
(A) "Public Access" means Access where the public is the primary user.
(B) "Educational Access" means Access where schools are the primary users having
editorial control over programming and services.
(C) "Government Access" means Access where governmental institutions or their
designees are the primary users having editorial control over programming and services.
(D) "Leased Access"means portions of the system's non-broadcast bandwidth, including
unused portions of the specially designated channels for leased access services.
(E) "PEG" means Public, Educational and Governmental Access.
1.2 "Access Channel" means any Channel, or portion thereof, designated for Access purposes
or otherwise made available to facilitate or transmit Access programming.
1.3 "Additional Subscriber Service Or Additional Service" means any communications
service, other than basic service, provided by the grantee to its subscribers, directly or as a carrier
for its subsidiaries, affiliates or any other person engaged in communication services, including,
but not limited to, pay television signals, data or other electronic intelligence transmission, meter
reading and home shopping.
1.4 "Affiliate" when used in connection with Grantee means any Person who owns or controls,
is owned or controlled by, or is under common ownership or control with, Grantee.
1.5 "Bad Debt" means amounts lawfully owed by a subscriber and accrued as revenues on the
books of Grantee, but not collected after reasonable efforts by Grantee.
1.6 "Basic Service" means all subscriber services provided by the Grantee, including the
delivery of broadcast signals, covered by the regular monthly charge paid by all subscribers,
excluding additional service, for which a separate charge is made, and shall include, but not be
limited to, the following:
(A) All signals of over-the-air television broadcasters as required by the F.C.C. to be
carried by a community antenna television system as defined by the F.C.C.;
(B) Channels designated for special purposes by the Board of County Commissioners
or its designate;
(C) Public, educational, local government, local organization and leased access
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channel signals; and
(D) Additional service as proposed by the Grantee in its application, or as it may
hereafter provide.
1.7 "Broadcast Signal" means a television or radio signal transmitted over the air to a wide
geographic audience, and received by an antenna, microwave, satellite dishes or any other means.
1.8 "Cable Act" means the Cable Communications Policy Act of 1984, as amended by the
Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications
Act of 1996, and any future amendments thereto.
1.9 "Cable Operator" means any Person or groups of Persons, including Grantee, 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 control(s) or is(are) responsible for,
through any arrangement,the management and operation of such a Cable System.
1.10 "Cable Service" means the delivery by the Grantee to television receivers, or any other
suitable type of audio/video communication receivers, to all subscribers within the permit area of
the County of all signals of over-the-air television broadcasters allowed by the F.C.C. to be
carried by the television system as defined by the F.C.C.; all FM radio stations carried on the
system; local origination channels; educational channels; public access channels; leased access
channels; pay television channels; and other services provided for in the Weld County Code
("the Code"), which is incorporated herein by reference, and the Grantee's application.
1.11 "Channel" means a portion of the electromagnetic frequency spectrum which is used in a
cable system and which is capable of delivering a television channel (as television channel is
defined by the Commission by regulation).
1.12 "County" means the County of Weld, Colorado, a political subdivision of the State of
Colorado.
1.13 "Designated Access Provider" means the entity or entities designated by the County to
manage or co-manage Access Channels and facilities. The County may be a Designated Access
Provider.
1.14 "Dwelling Unit" means any residential building, or each portion thereof that constitutes a
separate, independent living facility, used or intended to be used for living and sleeping, and that is
designed for residential occupancy. Buildings with more than one set of separate, independent
facilities for living and sleeping shall be considered Multiple Dwelling Units unless the
additional facilities are clearly accessory.
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1.15 "Expanded Basic Service" means the level of cable programming services received by
most Subscribers above Basic Service, and does not include for example,premium, or pay-per-view
services.
1.16 "FCC" means the Federal Communications Commission or its lawful successor.
1.17 "Franchise" means the document in which this definition appears, which is executed
between the County and Grantee, containing the specific provisions of the authorization granted
and the contractual agreement created hereby.
1.18 "Franchise Area" means the area within the jurisdictional boundaries of the County and
which is further described in the attached Exhibit"A."
1.19 "GAAP" means generally accepted accounting principles.
1.20 "Grantee" means K2 Communications, LLC, or its lawful successor, transferee or
assignee, as transferees and assignees are provided for in Section 16 of this Franchise.
1.21 "Gross Revenues" means all revenue derived by the Grantee as determined in accordance
with GAAP from the operation of Grantee's Cable System to provide Cable Services in the
Franchise Area. Gross Revenues include, by way of illustration and not limitation, monthly fees
charged Subscribers for Cable Services including Basic Service, Expanded Basic Service, digital
service, other tiers of Cable Service and Premium Services; Cable Service installation,
disconnection, reconnection and change-in-service fees, Leased Access Channel fees, lease
payments for use of the Cable System, late fees and administrative fees; payments or other
consideration received by the Grantee from programmers for carriage of Cable Services on the
Cable System and accounted for as revenue under GAAP; revenues from rentals of converters or
other Cable System equipment, net advertising sales revenues consistent with GAAP, revenues
from program guides; additional outlet fees, and revenues from home shopping. Gross Revenues
shall not include (i) Bad Debt, provided, however, that all or part of any such Bad Debt that is
written off but subsequently collected shall be included in Gross Revenues in the period collected;
or (ii) any taxes on services furnished by the Grantee which are imposed directly on any Subscriber
or user by the State, County or other governmental unit and which are collected by the Grantee on
behalf of said governmental unit.
1.22 "Headend" means any facility for signal reception and dissemination on the System,
including cables, antennas, wires, satellite dishes, monitors, switchers, modulators, processors and
other related equipment.
1.23 "Institutional Network" or "I-NET" means that part of the System facilities or capacity
designed for noncommercial use by non-residential Subscribers including communications to, from
and among government agencies, schools, libraries and other public agencies.
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1.24 "Interconnect" or "Interconnection" means the linking of the System with another
contiguous cable system, including technical, engineering, physical, financial and other necessary
components to accomplish, complete and adequately maintain such linking, in a manner to permit
the transmission and receiving of Access programming between the System and other cable
systems.
1.25 "Leased Access Channel" means any Channel or portion of a Channel commercially
available for programming in accordance with Section 612 of the Cable Act.
1.26 "Noncommercial" means, in the context of Access Channels, that particular products and
services are not promoted or sold. This shall not be interpreted to prohibit an Access Channel
operator or programmer from soliciting and receiving financial support (i.e., fund raising) to
produce and transmit programming on an Access Channel, or from acknowledging a contribution.
1.27 "Pay-Per-View Service" or "Premium Service" means Video Programming or other
programming service choices (such as movie Channels) offered to Subscribers on a per-Channel,
per-program or per-event basis.
1.28 "Person" means any individual, sole proprietorship, partnership,joint venture, association,
corporation or limited liability Grantee, or any other form of entity or organization.
1.29 "Residential Subscriber" means any Person who lawfully receives Cable Service
delivered to Dwelling Units or Multiple Dwelling Units, excluding such Multiple Dwelling Units
billed on a bulk-billing basis.
1.30 "Right-of-Way" or "Rights-of-Way" means land acquired or dedicated to the public or
hereafter dedicated to the public for public streets or roads, highways, avenues, lanes, alleys,
bridges, sidewalks, easements and other similar public property located within the Franchise Area.
1.31 "School" means any state accredited public and private educational institution including,
for example, primary and secondary schools(K-12), community colleges and universities.
1.32 "Standard Installation" means a connection extending no more than one hundred twenty-
five (125) feet from the potential Subscriber's exterior demarcation point to the point on the Cable
System from which Cable Service can be provided to the Subscriber. In no circumstance will an
installation be considered a Standard Installation if obstructions or other ground conditions require
the Grantee to bore to complete the installation.
1.33 "State" means the State of Colorado.
1.34 "Subscriber" means any Person who lawfully receives Cable Service provided by Grantee
by means of the System with Grantee's express permission.
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1.35 "System" or "Cable System" means a facility, consisting of a set of closed transmission
paths and associated signal generation, reception and control equipment that is designed to provide
Cable Service which includes Video Programming and which is provided to multiple subscribers
within a community, but such term does not include (1) a facility that serves only to retransmit the
television signals of one or more television broadcast stations; (2) a facility that serves Subscribers
without using any public right-of-way; (3) a facility of a common carrier which is subject, in whole
or in part, to the provisions of Title II of the Federal Communications Act (47 U.S.C. 201 et seq.),
except that such facility shall be considered a cable system (other than for purposes of 47 U.S.C.
541(c)) to the extent such facility is used in the transmission of Video Programming directly to
Subscribers, unless the extent of such use is solely to provide interactive on-demand services; (4) an
open video system that complies with 47 U.S.C. 573 and federal regulations; or (5) any facilities of
any electric utility used solely for operating its electric utility systems. When used herein, System
or Cable System refers to Grantee's Cable System in the franchise area.
1.36 "Telecommunications" means the transmission, between or among points specified by the
user, of information of the user's choosing, without change in the form or content of the information
as sent and received(as provided in 47 U.S.C. 153(43)).
1.37 "Telecommunications Service" means the offering of Telecommunications for a fee
directly to the public, or to such classes of users as to be effectively available directly to the public,
regardless of the facilities used (as provided in 47 U.S.C. 153(46)).
1.38 "Tier" means a category of Cable Services provided by the Grantee for which a separate
periodic rate is charged.
1.39 "Upstream" means carrying a transmission to the headend from remote points on the
System or from Interconnection points on the System.
1.40 "Video Programming" means programming provided by, or generally considered
comparable to programming provided by,a television broadcast station.
1.41 "Weld County Code" or "the Code" means the Weld County Code. This Franchise shall
be subject to the provisions set forth in Article 1, Title 11 of the Code, unless the terms set forth in
this document conflict with the Code provisions, in which case the terms of this document shall
control.
SECTION 2. GRANT OF FRANCHISE
2.1 Grant
(A) The County hereby grants to Grantee a nonexclusive and revocable authorization to
make reasonable and lawful use of the rights-of-way within the franchise area to construct, operate,
maintain and reconstruct a System for the purpose of providing Cable Services, subject to the terms
and conditions set forth in this Franchise.
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(B) Grantee, through this Franchise, is granted the right to operate its System using the
rights-of-way within the franchise area. Such use must be in compliance with the Code. In the
event of a conflict between the Code and this Franchise, the Franchise shall control. Additionally,
nothing in this Franchise shall be deemed to waive the requirements of ordinances of general
applicability lawfully enacted, or hereafter lawfully enacted,by the County.
(C) This Franchise shall not be interpreted to prevent the County from lawfully
imposing additional conditions, including additional compensation conditions for use of the rights-
of-way, should Grantee provide service other than Cable Service.
(D) Grantee promises and guarantees, as a condition of exercising the privileges granted
by this Franchise, that any Affiliate of the Grantee offering Cable Service in the franchise area, or
directly involved in the management or operation of the System in the franchise area, will also
comply with the terms and conditions of this Franchise.
(E) No rights shall pass to Grantee by implication. Without limiting the foregoing, by
way of example and not limitation, this Franchise shall not include or be a substitute for:
(1) Any other permit or authorization required for the privilege of transacting
and carrying on a business within the County that may be required by the ordinances and
laws of the County;
(2) Any permit, agreement or authorization required by the County for rights-of-
way users in connection with operations on or in rights-of-way or public property including,
by way of example and not limitation, street cut permits; or
(3) Any permits or agreements for occupying any other property of the County
or private entities to which access is not specifically granted by this Franchise including,
without limitation, permits and agreements for placing devices on poles, in conduits or in or
on other structures.
(F) This Franchise is intended to convey limited rights and interests only as to those
rights-of-ways in which the County has an actual interest. It is not a warranty of title or interest in
any rights-of-way; it does not provide the Grantee with any interest in any particular location within
the rights-of-way; and it does not confer rights other than as expressly provided in the grant hereof.
(G) This Franchise expressly authorizes Grantee to provide only Cable Services, and to
construct, operate or maintain Cable Service facilities. This Franchise is not a bar to the imposition
of any lawful conditions on Grantee with respect to non-Cable services, whether similar, different
or the same as the conditions specified herein. This Franchise does not relieve Grantee of any
obligation it may have to obtain from the County any such authorization that may lawfully be
required in order to provide non-Cable services or relieve Grantee of its obligation to comply with
any such authorization(s) that may be lawfully required. However, this Agreement shall not be
read as a concession by Grantee that it needs authority to provide non-Cable Services.
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2.2 Use of Rights-of-Way
(A) Subject to the County's regulatory authority, Grantee may erect, install, construct,
repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the rights-of-way
within the franchise area, such wires, cables (both coaxial and fiber optic), conductors, ducts,
conduit, vaults, manholes, amplifiers, pedestals, attachments and other property and equipment as
are necessary and appurtenant to the operation of the System for the provision of Cable Services
within the franchise area.
(B) Grantee must follow County-established requirements for placement of System
facilities in the rights-of-way, and must install and maintain System facilities in a manner that
minimizes interference with the use of the right-of-way by others, including others that may be
installing communications facilities. Within parameters reasonably related to the County's role in
protecting the public health, safety and welfare, the County may require that 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 right-of-way; may deny access if Grantee is not willing to comply with the County's
requirements; and, subject to giving Grantee reasonable prior written notice and an opportunity to
take the requisite corrective action, may remove, or require removal of, any facility that is not
installed in compliance with the requirements established by the County, or which is installed
without prior County approval and charge Grantee for all of the reasonable costs associated with
removal; and may require Grantee to cooperate with others to minimize adverse impacts on the
rights-of-way through joint trenching and other arrangements.
2.3 Duration
The term of this Franchise and all rights, privileges, obligations and restrictions pertaining thereto
shall be ten (10) years from the effective date of this Franchise, unless terminated as hereinafter
provided.
2.4 Effective Date
(A) This Franchise and the rights, privileges, and authority granted hereunder and the
contractual relationship established hereby shall take effect and be in force from and after the
effective date of this Franchise.
(B) The effective date of this Franchise shall be the latter of the dates on which it is
accepted in writing by Grantee and the County, and after the Grantee has:
(1) Filed with the Clerk and Recorder an unconditional acceptance of the
franchise grant and entered into and executed such documents as required by the County
consistent with the terms and provisions of Title 11, Article 1 of the Code. Said
acceptance shall be in a form as prescribed by the County and shall contain provisions
that the Grantee, by its acceptance, agrees to provide all services specifically set forth in
its application to provide CATV service within the confines of the permit area; and
further,that its application is incorporated by reference and made a part of the franchise
and said Article 1. In the event of conflict between such proposals and the provisions of
said Article 1, that provision which provides the greatest benefit to the County, in the
opinion of the Board of County Commissioners, shall prevail. Any acceptance filed by
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the Grantee pursuant to this Section shall be in writing, duly executed and sworn to by or
on behalf of the Grantee, before a notary public or other authorized by law to administer
oaths.
(2) File certificates of insurance as set forth in Section 11-1-190 of the Code.
(3) File such bonds, letters of credit and other sureties as required in Sections
11-1-160 and 11-1-170 of the Code.
2.5 Franchise Nonexclusive
This Franchise shall be nonexclusive, and subject to all prior rights, interests, easements, permits or
licenses granted by the County to any Person to use any property for any purpose whatsoever,
including the right of the County to use the same for any purpose it deems fit, including the same or
similar purposes allowed Grantee hereunder. The County may at any time grant authorization to
use the rights-of-way for any purpose not incompatible with Grantee's authority under this
Franchise and for such additional franchises for cable systems as the County deems appropriate.
2.6 Grant of Other Franchises
In the event the County enters into a subsequent franchise, permit, license, authorization or other
agreement of any kind with any other Person or entity other than the Grantee to use the rights-of-
way for the purpose of constructing or operating a System or providing Cable Service to any part of
the franchise area in which the Grantee is providing Cable Service under the terms and conditions
of this Franchise or is required to extend Cable Service to under the provisions of this Franchise,
the material terms and conditions thereof, shall be reasonably comparable and shall be neither more
favorable nor less burdensome to such Person than those contained herein in order that one cable
operator not be granted an unfair competitive advantage over another, and to provide all parties
equal protection under the law. The County will treat similarly situated users of the Rights-of-Way
in a similar manner.
2.7 Familiarity with Franchise
Grantee acknowledges and warrants by acceptance of the rights, privileges and agreement granted
herein, that it has carefully read and fully comprehends the terms and conditions of this Franchise
and is willing to and does accept all lawful and reasonable risks of the meaning of the provisions,
terms and conditions herein. The Grantee further acknowledges and states that it has fully studied
and considered the requirements and provisions of this Franchise, and finds that the same are
commercially practicable at this time.
2.8 Effect of Acceptance
By accepting the Franchise, the Grantee: (1) acknowledges and accepts the County's legal right to
issue and enforce the Franchise; (2) agrees that it will not oppose the County's intervening, to the
extent that the County is legally entitled to do so, in any legal or regulatory proceeding affecting the
Cable System; (3) accepts and agrees to comply with each and every provision of this Franchise
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subject to applicable law; and (4) agrees that the Franchise was granted pursuant to processes and
procedures consistent with applicable law, and that it will not raise any claim to the contrary.
2.9 Police Powers
In accepting this Franchise, Grantee acknowledges that its rights hereunder are subject to the police
powers of the County to adopt and enforce general ordinances necessary to the safety and welfare of
the public, and Grantee agrees to comply with all applicable general laws and ordinances lawfully
enacted by the County pursuant to such power.
SECTION 3. FRANCHISE FEES AND FINANCIAL CONTROLS
3.1 Franchise Fees
As compensation for the use of the County's rights-of-way, Grantee shall pay as a franchise fee to
the County, throughout the duration of this Franchise, an amount equal to five percent (5%) of
Grantee's Gross Revenues. Accrual of such franchise fees shall commence as of the effective date
of this Franchise.
3.2 Payments
Grantee's Franchise Fee payments to the County shall be computed quarterly for the preceding
calendar quarter ending March 31, June 30, September 30, and December 31. Each quarterly
payment shall be due and payable no later than forty-five (45) days after said dates.
3.3 Acceptance of Payment
No acceptance of any payment shall be construed as an accord by the County that the amount paid
is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any
claim the County may have for further or additional sums payable or for the performance of any
other obligation of Grantee.
3.4 Franchise Fee Reports
Each payment shall be accompanied by a written report to the County drafted in accordance with
GAAP, verified by an authorized representative of Grantee, containing an accurate statement in
summarized form, as well as in detail, of Grantee's gross revenues and the computation of the
payment amount.
3.5 Audits
On a maximum annual basis, upon thirty (30) days prior written notice, the County shall have the
right to conduct an independent audit of Grantee's records reasonably related to the enforcement of
this Franchise and to recompute any amounts determined to be payable under this Franchise in
accordance with GAAP. If Grantee cooperates in making all relevant records available to the
County, the County will attempt to complete each audit within six (6) months. Any additional
undisputed amounts due to the County as a result of the audit shall be paid within thirty (30) days
following written notice to the Grantee by the County, which notice shall include a copy of the
audit findings. If the audit shows that franchise fees have been underpaid by five percent (5%) or
more in a calendar year, Grantee shall pay for the cost of the audit, such cost not to exceed $5,000
for each year of the audit period.
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3.6 Financial Records
Grantee agrees to meet with a representative of the County within twenty-one (21) days of the
County's advance written request to review Grantee's methodology of record-keeping, financial
reporting, the computing of franchise fee obligations and other procedures, the understanding of
which the County deems necessary for reviewing reports and records that are relevant to the
enforcement of this Franchise.
3.7 Late Payments
In the event any payment due the County is not received within forty-five (45) days from the end of
the calendar quarter, Grantee shall pay, in addition to the amount due, interest on the amount due at
the prime rate as listed in the Wall Street Journal on the date the payment was due, calculated from
the date the payment was originally due until the date the County receives the payment. As used in
this section and section 3.8, "prime rate" shall be the rate calculated by using the base rate on
corporate loans posted by at least seventy five (75)percent of the nation's thirty(30) largest banks.
3.8 Underpayments
If a franchise fee underpayment is discovered as the result of an audit, Grantee shall pay, in addition
to the amount due, interest at the prime rate as listed in the Wall Street Journal on the date the
payment was due, compounded quarterly, calculated from the date the underpayment was
originally due until the date the County receives the payment. This interest on late payment shall
not be included in the five percent(5%)threshold referenced above in Section 3.5.
3.9 Maximum Franchise Fees
The parties acknowledge that, at present, applicable federal law limits the County to collection of a
franchise fee of five percent (5%) of gross revenues in a 12-month period. In the event that at any
time throughout the term of this Franchise, the County is authorized to collect an amount in excess
of five percent (5%) of gross revenues and the County elects to do so, then this Franchise shall be
amended by the parties consistent with such change to provide that such excess amount shall be
added to the franchise fee payments to be paid by Grantee to the County hereunder. Provided,
however, that if federal law permits a higher Franchise Fee, Grantee's Franchise Fee obligations
may not be increased unless the same increase is imposed upon other entities holding Cable
Franchises in the County. Such increase shall go into effect no less than ninety (90) days after the
County notifies Grantee in writing of its election to collect the allowed higher Franchise Fee
amount.
3.10 Additional Commitments Not Franchise Fees
No term or condition in this Franchise shall in any way modify or affect Grantee's obligation to pay
franchise fees. Although the total sum of franchise fee payments and additional commitments set
forth elsewhere in this Franchise may total more than five percent (5%) of Grantee's gross revenues
in any 12-month period, Grantee agrees that the additional commitments herein are not franchise
fees, nor are they to be offset or credited against any franchise fee payments due to the County, nor
do they represent an increase in franchise fees to be passed through to subscribers.
3.11 Alternative Compensation
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In the event the obligation of Grantee to compensate the County through franchise fee payments is
lawfully suspended or eliminated, in whole or part, then Grantee shall pay to the County
compensation as allowed by applicable law.
3.12 Payment on Termination
If this Franchise terminates for any reason, the Grantee shall file with the County within ninety (90)
days of the date of the termination, a financial statement, certified by an independent certified
public accountant, showing the Gross Revenues received by the Grantee since the end of the
previous year. Within forty-five (45) days of the filing of the certified statement with the County,
Grantee shall pay any undisputed unpaid amounts as indicated. If the Grantee fails to pay its
remaining financial obligations as required in this Franchise, the County may satisfy the same by
utilizing the funds available in the security provided by the Grantee in accordance with procedures
set forth herein.
3.13 Tax Liability
The franchise fees shall be in addition to any and all taxes or other levies or assessments which are
now or hereafter required to be paid by businesses in general by any law of the County, the State or
the United States including, without limitation, sales, use, utility, occupation and other taxes,
business license fees or other payments. Payment of the franchise fees under this Franchise shall
not exempt Grantee from the payment of any other license fee, permit fee, tax or charge on the
business, occupation, property or income of Grantee that may be lawfully imposed by the County.
Any other license fees, taxes or charges shall be of general applicability in nature and shall not be
levied against Grantee solely because of its status as a Cable Operator, or against Subscribers,
solely because of their status as such.
3.14 Bundling of Cable and Non-Cable Services
The Grantor recognizes that Grantee, at its sole discretion, may allocate revenue between Cable
Services (which are subject to the Franchise Fee) and non-Cable Services (which are not subject
to the Franchise Fee but may be subject to other fees and/or taxes) on bundled packages of
services. No allocation shall have the effect of remitting an unfair or unlawfully disproportionate
payment of Franchise Fees to Grantor.
In the event that the Grantor believes that Grantee's allocation methodology violates the
preceding section, the Grantor and the Grantee shall meet upon advance notice from the Grantor
to discuss and resolve the Grantor's concerns. If the Grantor and the Grantee cannot agree on the
matter within a reasonable period of time, the Grantor and the Grantee shall submit the matter to
a mutually agreeable third party for mediation. The cost of the mediation shall be shared equally
between the Grantor and the Grantee. If the Grantor and the Grantee are unable to mutually
agree on a mediator, then either the Grantor or the Grantee can bring the matter to a court of
competent jurisdiction, or pursue any other remedies available to them in this Franchise or by
law.
SECTION 4. ADMINISTRATION AND REGULATION
4.1 Authority
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The County shall be vested with the power and right to administer and enforce the requirements of
this Franchise and the regulations and requirements of applicable law, including the Cable Act, or
to delegate that power and right, or any part thereof, to the extent permitted under law, to any agent
in the sole discretion of the County.
The Grantee and the County shall be entitled to all rights and be bound by all changes in State and
federal law that occur subsequent to the effective date of this Franchise. The Grantee and the
County acknowledge that their rights and obligations under this Franchise are explicitly subject to
all such changes.
4.2 Rate Regulation
All of Grantee's rates and charges related to or regarding Cable Services shall be subject to
regulation by the County to the full extent authorized by applicable federal, State and local laws.
4.3 No Rate Discrimination
All of Grantee rates and charges shall be published (in the form of a publicly-available rate card),
and shall be nondiscriminatory for all Persons of similar classes, under similar circumstances and
conditions. Grantee shall permit subscribers to make any in-residence connections the subscriber
chooses without additional charge and without penalizing the subscriber therefor. However, if any
in-home connection requires service from Grantee due to poor signal quality, signal leakage or
other factors, caused by improper installation of such in-home wiring or faulty materials of such in-
home wiring, the subscriber may be charged appropriate service charges by Grantee. Nothing
herein shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction with valid
promotional campaigns;
(B) The offering of reasonable discounts to similarly situated Persons;
(C) The offering of bulk discounts for Multiple Dwelling Units; or
(D) The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens.
4.4 Leased Access Channel Rates
Grantee shall offer Leased Access Channel capacity on such terms and conditions and rates as may
be negotiated with each lessee, subject to the requirements of Section 612 of the Cable Act.
4.5 Late Fees
(A) For purposes of this subsection, any assessment, charge, cost, fee or sum, however
characterized, that the Grantee imposes upon a subscriber solely for late payment of a bill is a late
fee and shall be applied in accordance with applicable local, State and federal laws.
(B) The Grantee's late fee and disconnection policies and practices shall be
nondiscriminatory, and such policies and practices, and any fees imposed pursuant to this
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subsection, shall apply equally in all parts of the County without regard to the neighborhood or
income level of the subscribers.
(C) Nothing in this subsection shall be deemed to create, limit or otherwise affect the
ability of the Grantee to impose other assessments, charges, fees or sums other than those
permitted by this subsection, for the Grantee's other services or activities it performs in
compliance with applicable law, including FCC law, rule or regulation.
4.6 Reserved Authority
The County reserves all of its rights and authority arising from the Cable Act and any other relevant
provisions of federal, state or local laws.
4.7 Time Limits Strictly Construed
Whenever this Franchise sets forth a time for any act to be performed by Grantee, such time shall be
deemed to be of the essence, and any failure of Grantee to perform within the allotted time may be
considered a breach of this Franchise.
SECTION 5. INDEMNIFICATION AND INSURANCE REQUIREMENTS
5.1 Indemnification
(A) General Indemnification. Grantee shall indemnify, defend and hold harmless the
County, the Board of County Commissioners, and any officers, officials, boards, commissions,
agents and employees from any action, claim, damage, loss, liability, cost or expense, including
court and appeal costs and attorneys' fees and expenses, arising from the death of or injury to any
Person, casualty or accident to equipment or property arising out of, or by reason of, any
construction, excavation, operation, maintenance, repair, reconstruction, upgrade, rebuild, upkeep
or removal of the Cable System, by or for Grantee, its agents or employees, or by reason of any
neglect or omission of Grantee, its agents or employees.
(B) Procedures and Defense. The County shall give the Grantee written notice of any
claim or of the commencement of any action, suit or other proceeding covered by the indemnity in
this Section. If a claim or action arises, the County or any other indemnified party shall then tender
the defense of the claim to Grantee, which defense shall be at Grantee's expense. The County may
participate in the defense of a claim at its own cost. Grantee shall provide the County notice of any
proposed settlement of claims affecting the County, and will not bind the County to any settlement
without prior written authorization of the County.
(C) Grantee's Duties. The fact that Grantee carries out any activities under this
Franchise through independent contractors shall not constitute an avoidance of or defense to
Grantee's duties of defense and indemnification under this Section.
(D) Expenses. If separate representation to fully protect the interests of both parties is
necessary, such as a conflict of interest between the County and the counsel selected by Grantee to
represent the County, Grantee shall pay the expenses incurred by the County in defending itself
with regard to any action, suit or proceeding indemnified by Grantee. The County's expenses shall
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include all out-of-pocket expenses, such as consultants' fees, and shall also include the reasonable
value of any services rendered by any attorney or his/her assistants or any employees of the County
or its agents, but shall not include outside attorney's fees for services that are unnecessarily
duplicative of services provided the County by Grantee.
5.2 Insurance Requirements
(A) General Requirement. Grantee must have adequate insurance during the entire term
of this Franchise (and for a period of twelve [12] months thereafter) to protect the County against
claims for death or injuries to Persons or damages to property or equipment which in any way relate
to, arise from or are connected with this Franchise, or involve Grantee, its agents, representatives,
contractors, subcontractors and their employees.
(B) Minimum Insurance Limits. Grantee must keep insurance in effect in accordance
with the minimum insurance limits herein set forth:
(1) Commercial General Liability: Four million dollars ($4,000,000) aggregate
limit per occurrence for bodily injury, personal injury and property damage.
(2) Automobile Liability: Two million dollars ($2,000,000) combined single
limit per accident for bodily injury and property damage.
(3) Employer's Liability: Two million dollars ($2,000,000).
(4) Workers Compensation Insurance: In accordance with State law
requirements.
(5) Excess Liability or Umbrella Coverage: Two million dollars ($2,000,000).
(C.) Endorsements.
(1) All policies shall contain, or shall be endorsed so that:
(a) The County shall be designated as an additional named insured;
(b) The Grantee's insurance coverage shall be primary insurance with
respect to the County, any officers, officials, boards, commissions,
employees and agents. Any insurance or self-insurance maintained by the
County, any officers, officials, boards, commissions, employees and agents
shall be in excess of the Grantee's insurance and shall not contribute to it;
and
(c) The policy shall contain a severability of interests provision.
Grantee'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.
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(2) The insurance provided herein shall not be cancelled or the limits reduced
so as to be out of compliance with the requirements of this Section without thirty (30) days
written notice first being given to the County. If the insurance is cancelled or reduced in
coverage, Grantee shall provide a replacement policy.
(D) Acceptability of Insurers. The insurance obtained by Grantee shall be placed with
insurers with a Best's rating of no less than "A-VII".
(E) Verification of Coverage. The Grantee shall furnish the County with certificates of
insurance. The certificate for each insurance policy is to be signed by a person authorized by that
insurer to bind coverage on its behalf. The certificate for each insurance policy must be on standard
forms or on such forms as are consistent with standard industry practices, and are to be provided to
the County upon acceptance of this Franchise by Grantee. The Grantee hereby warrants that its
insurance policies satisfy the requirements of this Franchise.
(F) No Limitation. Grantee's maintenance of insurance policies required by this
Franchise shall not be construed to excuse unfaithful performance by Grantee or limit the liability
of Grantee to the coverage provided in the insurance policies, or otherwise limit the County's
recourse to any other remedy available at law or in equity.
5.4 Cash Deposit,Bond or Letter of Credit
(A) Upon the Effective Date of this Franchise, Grantee shall provide a cash deposit,
payment and performance bond, or letter of credit to ensure the faithful performance of its
responsibilities under this Franchise and applicable federal law, including, by way of example and
not limitation, its obligations to relocate and remove its facilities, restore County Rights-of-Way
and other property, and its obligations to pay the County sums due under the terms of the Franchise.
The amount of the payment and performance bond shall be fifteen thousand dollars ($15,000).
(B) Grantee's maintenance of such performance guarantee collateral shall not be
construed to excuse unfaithful performance by Grantee, or limit the liability of Grantee to the
amount of the collateral, or otherwise limit the County's recourse to any other remedy available at
law or in equity.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
Grantee shall comply with Customer Service Standards set forth in the Code and those incorporated
into this Agreement as Exhibit "B." Grantee reserves the right to challenge any customer service
standard that it believes is inconsistent with its rights under federal law or its contractual rights
under this Franchise.
6.2 Subscriber Privacy
Grantee will comply with privacy rights of subscribers in accordance with federal, and State laws.
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SECTION 7. REPORTS AND RECORDS
7.1 Open Records
The County shall have access to, and the right to inspect, any books and records of Grantee and its
Affiliates which are reasonably related to the enforcement of the provisions of this Franchise.
Grantee shall not deny the County access to any of Grantee's records on the basis that Grantee's
records are under the control of any Affiliate. The County may, in writing, request copies of any
such records or books, and Grantee shall provide such copies within thirty (30) days of the
transmittal of such request. One copy of all reports and records required under this or any other
Section shall be furnished to the County at the sole expense of Grantee. If the requested books and
records are too voluminous, or for security reasons cannot be copied or removed, then Grantee may
request that the County inspect them at Grantee's local office. If any books or records of Grantee
are not kept in a local office and not made available in copies to the County upon written request as
set forth above, and if the County determines that an examination of such records is necessary for
the enforcement of this Franchise, then all reasonable travel expenses incurred in making such
examination shall be paid by Grantee.
7.2 Confidentiality
The County agrees to keep confidential any proprietary or confidential books or records of Grantee
to the extent permitted by law. Grantee shall be responsible for clearly and conspicuously
identifying the records as confidential or proprietary, and shall provide a brief written explanation
as to why such information is confidential or proprietary and how it may be treated as such under
State, local, or federal law. If the County receives a demand from any Person for disclosure of any
information designated by Grantee as confidential, the County shall, so far as consistent with
applicable law, advise Grantee and provide Grantee with a copy of any written request by the
Person demanding access to such information within a reasonable time. Until otherwise ordered
by a court or agency of competent jurisdiction, the County agrees that, to the extent permitted by
State, local, and federal law, it shall deny access to any of Grantee's books and records marked
confidential as set forth above. Nothing in this Section 7.2 shall limit the right of the Grantee to
contest disclosure or submission to a third party as required by law or to a government agency or
regulatory body asserting jurisdiction over it or such subject matter.
7.3 Maps and Records Required
Grantee shall provide to the County, upon written request:
(A) A complete set of route maps showing the general location of Cable System lines
and facilities in the Right-of-Way, but excluding detail on proprietary electronics or other
proprietary information related to Grantee's specific design of the Cable System;
(B) A copy of all FCC filings which relate to the operation of the System in the
franchise area;
(C) A list of Grantee's Cable Services,rates and Channel line-up;
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(D) A compilation and log of escalated Subscriber complaints referred by the County,
actions taken and resolution; and
(E) A Phone activity report demonstrating compliance with Section 3 (B) (4) and 3 (B)
(6)of the Customer Service Standards incorporated into this agreement as Exhibit B.
7.4 Submittal of Documents
Upon reasonable written request, Grantee shall submit to the County copies of any applications,
notifications, communications and documents of any kind, submitted by Grantee or its Affiliates to
any federal, State or local courts, regulatory agencies and other government bodies if such
documents directly relate to the operations of Grantee's System within the franchise area. Grantee
shall submit such documents to the County no later than forty-five (45) days after receipt of the
County's written request. Grantee shall not claim confidential, privileged or proprietary rights to
such documents unless under federal, State, or local law such documents have been determined to
be confidential by a court of competent jurisdiction, or a federal or State agency.
7.5 Annual Reports
Within sixty (60) days of the County's written request, but no more often than annually, Grantee
shall submit to the County a written report, which shall include, but not necessarily be limited to,
the following information:
(A) A Gross Revenue statement for the preceding year and all deductions and
computations for the period, and such statement shall be reviewed by a certified public accountant,
who may also be the chief financial officer or controller of Grantee, prior to submission to the
County;
(B) A summary of the previous year's activities regarding the development of the Cable
System, including, but not limited to, beginning and ending plant miles, any technological changes
occurring in the Cable System and the number of customers subscribing to, at a minimum, the
Basic tier of Cable Service;
(C) A description of planned construction, if any, for the current year; and
(D) An executive summary of escalated Subscriber complaints referred by the County
and their disposition and status, provided that at such time as summaries of all customer complaints
can be made available by an updated automated system, such reporting shall be made in lieu of the
complaints referred by the County. Until such automated system is in place, Grantee will within
sixty (60)days of the County's written request,but not more often than annually, make available for
an authorized County representatives' review at Grantee's office in Weld County, notations from
Subscriber accounts reflecting the complaints and/or service calls existing in those Subscriber
accounts. The privacy provisions protecting Subscriber information of Section 6.2, and the
confidentiality provisions of Section 7.2 of the Agreement apply to this subsection.
7.6 Quarterly Service Request Reports
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Grantee shall at all times maintain, and shall submit semi-annually to the County a summary of
service requests, (including but not limited to requests related to service problems, cut cable
drops, non-addressable converters, inoperable inside wiring or customer equipment), for Cable
Service from the preceding quarter, identifying the number and nature of the requests and their
disposition, which shall be submitted to Grantor within 30 (thirty) days of the close of the six-
month time period.
7.7 False Statements
Any intentional false or misleading statement or representation in any report required by this
Franchise shall be a material breach of this Franchise and may subject Grantee to all remedies, legal
or equitable, which are available to the County under this Franchise or otherwise.
SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide at least the following initial broad categories of programming to the extent
such categories are reasonably available:
(A) News, weather and information;
(B) Sports;
(C) General entertainment including movies;
(D) Children, family oriented;
(E) Arts, culture and performing arts;
(F) Foreign language programming (for example, Spanish); and
(G) Science/documentary.
8.2 Deletion of Broad Programming Categories
Grantee shall not delete or so limit as to effectively delete any broad category of programming
within its control without prior written notice to the County.
8.3 Ascertainment of Customer Satisfaction
Nothing herein shall be construed to limit the right of the County to conduct its own surveys at its
own expense, and nothing herein shall be construed to limit the right of Grantee and the County
from consulting and cooperating with one another on a survey or surveys of community views
relating to cable operations or other issues of mutual interest in the County if the parties mutually
agree to do so.
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8.4 Parental Control Device
Upon request by any Subscriber, Grantee shall make available a parental control or lockout device,
traps or filters to enable a Subscriber to control access to both the audio and video portions of any
or all Channels. Grantee shall inform its Subscribers of the availability of the lockout device at the
time of their initial subscription and periodically thereafter. Such devices, traps or filters will be
provided at no charge to the Subscriber,unless otherwise provided by federal law.
SECTION 9. ACCESS
9.1 Access Channels
(A) Upon the effective date of this Franchise and throughout the term hereof, Grantee
shall make available at its expense:
(1)a Government Access Channel;
(2)an Educational Access Channel; and
(3)a Public Access Channel.
If Grantee makes a change in its Cable System and related equipment and facilities, or in its signal
delivery technology, which directly or indirectly affects the signal quality or method or type of
transmission of Access programming or services, Grantee shall at its own expense take necessary
technical steps and provide necessary technical assistance, including the acquisition of all necessary
equipment and full training of Access personnel, to ensure that the capabilities of Access Channels
and delivery of Access programming are not diminished or adversely affected by such change. For
example, live and taped programming must be cablecast with as good or better signal quality than
existed prior to such change. Until such time when franchisee attains a subscriber count of ten
thousand(10,000) or greater,the Access Channels may co-exist on a single channel.
(B) Technical Quality. The Grantee shall maintain all Access services, Channels and
Interconnections at the same level of technical quality and reliability as that for the rest of its
System. The Grantee shall, at its expense, provide routine maintenance and repair and replace, if
necessary, any of Grantee's equipment required to carry a quality signal from the Access facilities
provided under this Franchise to Subscribers.
(C) Return Lines and Equipment. Grantee shall, at its expense, maintain return lines
to the Headend in order to enable the distribution of Government and Educational Access
programming to Residential Subscribers on the Government and Educational Access
Channels.
9.2 Management and Control of Access Channels
The County or its designee may formulate rules for the placement of programming on the Access
Channels, consistent with this Franchise.
9.3 Relocation of Access Channels
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In the event of a change in Access Channel designations, Grantee will notify Subscribers of such
changes consistent with FCC customer notification requirements and Grantee's standard
customer notification practices, including by making appropriate modifications to channel lineup
information and on-screen lineup guides made available to Subscribers.
9.4 Access Channels On Lowest Tier
All Access Channels provided to Subscribers under this Franchise shall be included by Grantee as a
part of the Basic Service tier. Grantee will throughout the term of this Agreement use reasonable
efforts to maintain in close proximity the designation of the Government Access channel with other
Basic Service tier news and information genre channels.
9.5 Additional Access Matters
Neither Grantee nor the County shall be responsible for providing a studio for Public Access
purposes.
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1 Right to Construct
Subject to generally applicable laws, regulations, rules, resolutions and ordinances of the County
and the provisions of this Franchise, Grantee may perform all construction in the rights-of-way for
any facility needed for the maintenance, operation or extension of Grantee's Cable System.
10.2 Right-of-Way Meetings
Subject to receiving advance notice, Grantee shall make reasonable efforts to attend and participate
in meetings of the County regarding right-of-way issues that may impact the Cable System.
10.3 General Standard
All work authorized and required hereunder shall be done in a safe, thorough and workmanlike
manner. All equipment shall be durable and installed and maintained in accordance with good
engineering practices and comply with all federal, State and local laws and regulations.
10.4 Joint Trenching/Boring
Whenever it is reasonable, Grantee shall joint trench or share bores or cuts and work with other
providers (such as, but not limited to, telecommunications, gas and electric companies) and the
County, licensees, permitees and franchisees so as to reduce the number of right-of-way cuts within
the County.
10.5 Movement of Facilities During Emergencies
During natural emergencies or acts of God, the County may move Grantee's facilities without prior
notice.
10.6 One Call
Grantee will maintain membership in good standing with the organization designated by the State
to coordinate underground equipment locations and installations. Grantee shall abide by the State's
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underground utilities statutes and will further comply with and adhere to local procedures, customs
and practices relating to the one call locator service program.
10.7 Permits Required for Construction
When required, prior to doing any work in the right-of way or other public property, Grantee shall
apply for, and obtain, appropriate permits from the County and also give appropriate notices to the
County. As part of the permitting process, the County may impose such conditions and regulations
as are necessary for protecting any structures in such rights-of-way, and for providing for the proper
restoration of such rights-of-way and to protect the public and the continuity of pedestrian or
vehicular traffic. Grantee shall pay all generally applicable fees for the requisite County permits.
10.8 Emergency Permits
In the event that emergency repairs are necessary, Grantee shall immediately notify the County of
the need for such repairs. Grantee may initiate such emergency repairs, and shall apply for
appropriate permits within forty-eight(48)hours after discovery of the emergency.
10.9 Submittal and Acceptance of Plans
No installation of cable or any facility shall occur within any of the rights-of-way of the County
unless plans therefore shall have been first submitted to and accepted by the County, and such
acceptance will not be unreasonably withheld and will be timely granted.
10.10 Compliance with Applicable Codes
(A) County Codes. Grantee shall comply with all applicable County codes, including,
without limitation, construction codes, building codes, the Fire Code and zoning codes and
regulations.
(B) Regulations and Safety Codes. Grantee shall comply with all applicable federal,
State and County safety requirements, rules, regulations, laws and practices. By way of illustration
and not limitation, Grantee shall comply with the National Electric Code,National Electrical Safety
Code and Occupational Safety and Health Administration (OSHA) Standards.
10.11 GIS Mapping
Grantee shall comply with any generally applicable ordinances, rules and regulations of the County
regarding geographic information systems mapping for users of the rights-of-way.
10.12 Least Interference
Work in the right-of-way, or on other public or private property, shall be done in a manner that
causes the least interference with the rights and reasonable convenience of property owners and
residents. Grantee's Cable System shall be constructed and maintained in such a manner as not to
interfere with sewers, water pipes or any other property of the County, or with any other pipes,
wires, conduits, pedestals, structures or other facilities that may have been laid in the rights-of-way
by, or under, the County's authority. The Grantee's Cable System shall be located, erected and
maintained so as not to endanger or interfere with the lives of Persons, or to interfere with new
improvements the County may deem proper to make or to unnecessarily hinder or obstruct the free
use of the rights-of-way or other public property, and shall not interfere with travel and use of
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public places by persons during the construction, repair, operation or removal thereof. In the event
of such interference, the County may require the removal or relocation of Grantee's lines, cables,
equipment and other appurtenances from the property in question at Grantee's expense.
10.13 Prevent Injury/Safety
Grantee shall provide and use any equipment and facilities necessary to control and carry Grantee's
signals so as to prevent injury to the County's property or property belonging to any Person.
Grantee, at its own expense, shall repair, renew, change and improve its facilities to keep them in
good repair, and safe and presentable condition. All excavations made by Grantee in the rights-of-
way shall be properly safeguarded for the prevention of accidents.
10.14 Notice to Private Property Owners
Except in the case of an emergency involving public safety or an outage, or service interruption to a
large number of subscribers, Grantee shall give reasonable advance notice to private property
owners or tenants of work on or use of such private property.
10.15 Poles
(A) The Grantee shall utilize existing poles and conduit wherever possible. Grantee
shall not erect or authorize or permit others to erect any poles within the streets of the County for
operation of its Cable System.
(B) This Franchise does not grant, give or convey to the Grantee the right or privilege to
install its facilities in any manner on specific utility poles or equipment of the County or of any
other Person.
(C) The Grantee and the County recognize that situations may occur in the future where
the County may desire to place its own conduit and fiber optic cable in trenches or bores opened by
the Grantee. The Grantee agrees to cooperate with the County in any construction that involves
trenching or boring, provided that the County has first provided written notice to the Grantee that it
is interested in sharing the trenches or bores in the area where the Grantee's construction is
occurring. The Grantee shall allow the County to lay County conduit and fiber optic cable in the
Grantee's trenches and bores, provided the County shares pro rata in the cost of the trenching and
boring with Grantee. The County shall be responsible for maintaining its respective conduit and
fiber optic cable,which is buried in the Grantee's trenches and bores.
10.16 Undergrounding Requirements
Where electric and telephone lines are underground at the time of Cable System construction or
upgrade, or when such lines are subsequently placed underground, all Cable System lines shall also
be placed underground with other wireline service at no expense to the County or subscribers unless
funding is generally available for such relocation to all users of the Rights-of-Way. Related Cable
System equipment, such as pedestals or power supplies, must be placed in accordance with the
County's applicable code and permit requirements and rules.
10.17 Restoration of Property
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(A) The Grantee shall protect public and private property from damage. If damage
occurs,the Grantee shall promptly notify the property owner within twenty-four(24)hours.
(B) Whenever Grantee disturbs or damages any right-of-way, other public property or
any private property, Grantee shall promptly restore the right-of-way or property to at least its prior
condition, normal wear and tear excepted, at its own expense. If the public safety or welfare is put
at risk by conditions resulting from work performed by Grantee in the right-of-way or on other
public or private property then Grantee will use best efforts to promptly remedy such conditions to
make safe the affected area.
(C) Grantee shall warrant any restoration work performed by or for Grantee in the right-
of-way or on other public property or private property for one (1) year, unless a longer period is
required by the Code or any generally applicable ordinance or resolution of the County. If
restoration is not satisfactorily performed by the Grantee within a reasonable time, the County may,
after prior written notice to the Grantee, or without notice where the disturbance or damage may
create a risk to public health or safety, cause the repairs to be made and recover the reasonable cost
of those repairs from the Grantee. Within thirty (30) days of receipt of an itemized list of those
costs, including the costs of labor, materials and equipment,the Grantee shall pay the County.
10.18 Discontinuing Use
Whenever Grantee intends to discontinue using any facility within the rights-of-way, Grantee shall
notify the County of its intention. Grantee may remove the facility or request that the County
permit it to remain in place. Notwithstanding Grantee's request that any such facility remain in
place, the County may require Grantee to remove the facility from the right-of-way or modify the
facility to protect the public health, welfare, safety, or convenience, or otherwise serve the public
interest. The County may require Grantee to perform a reasonable combination of modification and
removal of the facility. Grantee shall complete such removal and/or modification respectively in
accordance with a schedule reasonably set by the County. Until such time as Grantee removes or
modifies the facility as reasonably directed by the County, or until the rights to and responsibility
for the facility are accepted by another Person having authority to use, construct and/or maintain
such facility, Grantee shall retain all liability for such facility and be responsible for all necessary
repairs and relocations of the facility, as well as maintenance of the right-of-way, in the same
manner and degree as if the facility were in active use. Furthermore, if Grantee fails to remove a
facility and such facility consists of either conduit or fiber, then, at the County's discretion, the
conduit or fiber may become the property of the County.
10.19 Movement of Cable System Facilities For County Purposes
Nothing in this Franchise shall prevent the County from constructing any public work or capital
improvement. Further, the County shall have the right to require Grantee to relocate, remove,
replace, modify or disconnect Grantee's facilities and equipment located in the rights-of-way or on
any other property of the County in the event of an emergency or when necessary to protect or
further the health, safety or welfare of the general public, and such work shall be performed at
Grantee's expense consistent with applicable law, including C.R.S. 29-8-101 et seq. Except during
an emergency, the County shall provide reasonable written notice to Grantee, not to be less than
twenty-one (21) business days, and allow Grantee the opportunity to perform such action. In the
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event of any capital improvement project exceeding $500,000 in expenditures by the County which
requires the removal, replacement, modification or disconnection of Grantee's facilities or
equipment, the County shall provide at least sixty (60) days written notice to Grantee. Following
notice by the County, Grantee shall relocate, remove, replace, modify or disconnect any of its
facilities or equipment within any right-of-way, or on any other property of the County. If the
County requires Grantee to relocate its facilities located within the rights-of-way, the County shall
make a reasonable effort to provide Grantee with an alternate location within the rights-of-way. If
funds are generally made available to users of the rights-of-way for such relocation, Grantee shall
be entitled to its pro rata share of such funds.
If the Grantee fails to complete the above work within the time prescribed by the County,
given the nature and extent of the work, or if it is not done to the County's reasonable satisfaction,
the County may cause such work to be done and bill the reasonable cost of the work to the Grantee,
including all reasonable costs and expenses incurred by the County due to Grantee's delay. In such
event, the County shall not be liable for any damage to any portion of Grantee's Cable System.
Within thirty (30) days of receipt of an itemized list of those costs, the Grantee shall pay the County
those costs to which the County is legally entitled to reimbursement. Nothing herein shall be
construed as to waive any rights Grantor or Grantee may have relating to reimbursement of costs
related to underground construction.
10.20 Movement of Cable System Facilities for Other Franchise Holders
If any removal, replacement, modification or disconnection of the Cable System is required to
accommodate the construction, operation or repair of the facilities or equipment of another County
franchise holder, Grantee shall, after at least thirty (30) days advance written notice, take action to
effect the necessary changes requested by the responsible entity. Grantee may require that the costs
associated with the removal, replacement, modification or disconnection of the Cable System be
paid by the benefited party, and Grantee may require a reasonable deposit of the estimated payment
in advance.
10.21 Temporary Changes for Other Permitees
At the request of any Person holding a valid permit and upon reasonable advance written notice,
Grantee shall temporarily raise, lower or remove its facilities, wires, cables, conduits and other
property and equipment as necessary to permit the moving of a building, vehicle, equipment or
other item. The expense of such temporary changes must be paid by the permit holder, and Grantee
may require a reasonable deposit of the estimated payment in advance.
10.22 Reservation of County Use of Right-of-Way
Nothing in this Franchise shall prevent the County from constructing sewers; grading, paving,
repairing or altering any right-of-way; laying down, repairing or removing water mains; installing
conduit or fiber optic cable; or constructing or establishing any other public work or improvement.
All such work shall be done, insofar as practicable, so as not to obstruct, injure or prevent the use
and operation of Grantee's Cable System.
10.23 Tree Trimming
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Grantee may cause to be pruned (using proper pruning practices and an arborist or tree trimming
firm licensed by the County) any tree in or outside of the right-of-way which interferes with
Grantee's Cable System. Except in emergencies, Grantee's contractor may not prune trees until one
(1) week written notice has been provided to the County and the owner or occupant of the premises
abutting the right-of-way in or over which the tree is growing. If the tree or trees are located on
public right-of-way, the owner or occupant of the abutting premises may contract with an arborist
licensed with the County to prune such tree or trees at his/her expense during the one (1) week
period. If the owner or occupant fails to do so, the Grantee's arborist or tree trimming firm may
prune such tree or trees at the Grantee's expense. For purposes of this subsection, emergencies exist
when it is necessary to prune to protect the public or Grantee's facilities from imminent danger only.
10.24 Inspection of Construction and Facilities
The County may inspect any of Grantee's facilities, equipment or construction within the rights-of-
way and on other public property upon at least twenty-four (24) hours notice, or, in case of an
emergency, upon demand without prior notice. If an unsafe condition is found to exist, the County,
in addition to taking any other action permitted under applicable law, may order Grantee, in writing,
to make the necessary repairs and alterations specified therein forthwith to correct the unsafe
condition by a time the County establishes. The County has the right to inspect, repair and correct
the unsafe condition if Grantee fails to do so, and to reasonably charge Grantee therefor.
10.25 Stop Work
(A) On notice from the County that any work is being performed contrary to the
provisions of this Franchise, or in an unsafe or dangerous manner as reasonably determined by the
County, or in violation of the terms of any applicable permit, laws, regulations, ordinances or
standards,the work may immediately be stopped by the County.
(B) The stop work order shall:
(1) Be in writing;
(2) Be given to the person doing the work, or be posted on the work site;
(3) Be sent to Grantee by overnight delivery at the address given herein;
(4) Indicate the nature of the alleged violation or unsafe condition; and
(5) Establish conditions under which work may be resumed.
10.26 Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be licensed and bonded in accordance with the
County's generally applicable 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 Grantee. Grantee shall be responsible for all work performed by its contractors and
subcontractors and others performing work on its behalf as if the work were performed by it, and
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shall ensure that all such work is performed in compliance with this Franchise and other applicable
laws, and shall be jointly and severally liable for all damages and correcting all damage caused by
them. It is Grantee's responsibility to ensure that contractors, subcontractors or other Persons
performing work on Grantee's behalf are familiar with the requirements of this Franchise and other
applicable laws governing the work performed by them.
SECTION 11. SYSTEM UPGRADE/TECHNICAL STANDARDS
11.1 Subscriber Network
(A) Grantee's current Cable System has a capacity of at least 125 Channels of Video
Programming and is two-way capable throughout the Franchise Area.
(B) During the term of this Agreement, Grantee shall continually offer broad categories
of programming sufficient to meet the changing needs and interests of Subscribers in the County,
taking into consideration input from the County and taking into account the costs of meeting those
needs and interests, and consistent with the provisions of 47 USC 544(b)(2)(B), and the Grantee's
First Amendment rights.
(C) The Grantee shall provide additional or new facilities and equipment, and
otherwise upgrade or rebuild its cable system throughout the Franchise term as required to
remain compliant with FCC standards.
11.2 Standby Power
Grantee shall provide standby power generating capacity at the headend of at least twelve (12)
hours. Grantee shall maintain strategically located standby power supplies throughout the cable
system, rated for at least four(4)hours duration.
11.3 Emergency Alert
Grantee shall provide an operating Emergency Alert System ("EAS") in compliance with FCC
standards throughout the term of this Franchise. The County may use the EAS, under procedures
established between the County and the Grantee which are consistent with Grantee's State and
federal EAS requirements, to transmit an emergency alert signal, including the ability to override
the audio and video (either full screen, or crawlers) on all Channels throughout the County from
the County's Emergency Operations Center or other location as may be designated by the
County. Grantee shall test the EAS as required by the FCC. Upon request, the County shall be
permitted to participate in and/or witness the EAS testing at least twice a year on a schedule
formed in consultation with Grantee. If the test indicates that the EAS is not performing
properly, Grantee shall immediately initiate steps to make any necessary adjustment or repair to
the EAS, and the EAS shall be retested.
The County shall permit only appropriately trained and authorized Persons to operate the EAS
equipment provided pursuant to this subsection.
11.4 Technical Performance
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The technical performance of the Cable System shall meet or exceed all applicable FCC technical
standards, as they may be amended from time to time, regardless of the transmission technology
utilized. The County shall have the full authority permitted by applicable law to enforce
compliance with these technical standards.
11.5 Cable System Performance Testing
(A) Grantee shall, at Grantee's expense, perform the following tests on its Cable System:
(1) All tests required by the FCC.
(B) At present, Grantee's required tests include:
(1) Cumulative leakage index testing;
(2) Semi-annual compliance and proof of performance tests in conformance
with generally accepted industry guidelines;
(3) Tests in response to subscriber complaints and service calls; and
(4) Periodic monitoring tests, at intervals not to exceed six (6) months, of
subscriber(field)test points,the headend, and the condition of standby power supplies.
Upon advance written request, all required FCC technical performance tests may be
witnessed by representatives of the County.
(C) Grantee shall maintain written records of its Cable System tests performed by or for
Grantee. Copies of such test results will be provided to the County upon written request.
(D) Grantee shall promptly take such corrective measures as are necessary to correct any
performance deficiencies fully and to prevent their recurrence as far as possible. Grantee's failure to
correct deficiencies identified through this testing process shall be a material violation of this
Franchise. Sites shall be re-tested following correction.
SECTION 12. SCRAMBLED CHANNEL
Grantee acknowledges that the County reserves the right, consistent with and at some point during
the term of this Agreement, to use existing, under-utilized time on an Access Channel to distribute
secured noncommercial programming to County employees for internal training purposes, provided
however, that the County shall only use under-utilized time on the Public Access Channel upon
reaching mutual agreement with Grantee to do so. If the County exercises its right to use under-
utilized Access Channel time for this purpose and so notifies Grantee in writing, Grantee agrees to
cooperate with the County by providing reasonable technical support and assistance. The County
will reimburse Grantee for any costs related to Grantee's technical support and assistance, and for
any necessary equipment provided and/or installed by Grantee.
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SECTION 13. SERVICE EXTENSION AND SERVICE TO PUBLIC BUILDINGS
13.1 Service Availability
(A) Subject to the density provisions described in Section 13.2(D) below, Grantee shall
provide Cable Service within seven (7) days of a request by any potential Residential Subscriber
within the County. For purposes of this subsection, a request shall be deemed made on the date of
signing a service agreement, receipt of funds by Grantee, receipt of a written request by Grantee or
receipt by Grantee of a verified verbal request. Grantee shall provide such service:
(1) With no line extension charge except as specifically authorized elsewhere in
this Section.
(2) At a nondiscriminatory installation charge for a Standard Installation, as that
term is described in Section 1.31, with additional charges for non-Standard Installations
computed according to a nondiscriminatory methodology for such installations.
(3) At nondiscriminatory monthly rates in accordance with applicable laws.
(B) Provision of Cable Service. Grantee shall not arbitrarily refuse to provide Cable
Service to any Person within its franchise area. Notwithstanding the foregoing, Grantee may
introduce new or expanded Cable Services on a geographically phased basis, where such services
require an upgrade of the Cable System. Grantee may also charge for line extensions of service
and non-Standard Installations pursuant to this section, including but not limited to the
reasonable cost of excess labor and materials.
(C) Service to Multiple Dwelling Units. The Grantee shall provide Cable Service to
Multiple Dwelling Units in accordance with an agreement with the property owner or owners, this
Franchise and all applicable laws. The Grantee shall offer the individual units of a Multiple
Dwelling Unit all Cable Services offered to other Dwelling Units in the County and shall
individually wire units upon request of the property owner or renter who has been given written
authorization by the owner; provided, however, that any such offering is conditioned upon the
Grantee having legal access to said unit. The County acknowledges that the Grantee cannot
control the dissemination of particular Cable Services beyond the point of demarcation at a
Multiple Dwelling Unit.
(D) Customer Charges for Line Extensions of Service. For unusual circumstances, such
as the existence of a non-Standard Installation, as that term is described in Section 1.31, or a density
of less than twenty-five (25) dwelling units per 5280 cable-bearing strand feet of distribution cable,
service may be made available on the basis of a capital contribution in aid of construction,
including cost of material, labor and easements. For the purpose of determining the amount of
capital contribution in aid of construction to be borne by the Grantee and customers in the area in
which service may be expanded, the Grantee will contribute an amount equal to the construction
and other costs per mile, multiplied by a fraction whose numerator equals the actual number of
dwelling units per 5280 cable-bearing strand feet of its distribution cable and whose denominator
equals twenty-five (25). Potential customers who request service hereunder will bear the remainder
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of the construction and other costs on a pro rata basis. The Grantee may require that the payment of
the capital contribution in aid of construction borne by such potential customers be paid in advance.
13.2 Connection of Public Facilities
Grantee shall, without charge, provide one outlet of Basic and Expanded Basic Service and the
technology needed to view those Service tiers to all existing County owned (or leased) and
occupied buildings, fire stations and sheriff offices, County office buildings within the Franchise
Area, public libraries, schools (K-12). In addition, Grantee shall provide, at no cost, one outlet of
Basic Service and Expanded Basic Service to future owned (or leased) and occupied County
buildings, fire stations and sheriff offices, County office buildings within the Franchise Area, public
libraries, schools (K-12) and Access facilities, upon written request, provided that the drop line
from the feeder cable to such building does not exceed one hundred twenty-five (125) feet unless
the County or other entity agrees to pay the incremental cost of such drop line in excess of one
hundred twenty-five (125) feet, including the reasonable cost of excess labor and materials. Such
Cable Service shall not be used for commercial purposes, and such outlets shall not be located in
areas open to the public, nor shall the obligation to provide free Cable Service be extended to areas
of County buildings where the Grantee would normally enter into a commercial contract to provide
such Cable Service(i.e., a golf course, recreation center work out facilities, etc).
Outlets of Basic Service and Expanded Basic Service provided in accordance with this
subsection may be used to distribute Cable Services throughout such buildings, provided such
distribution can be accomplished without causing Cable System disruption and general technical
standards are maintained. Such outlets may only be used for lawful purposes, and the County
shall hold the Grantee harmless from any and all liability or claims arising out of the provision
and use of Cable Service required by this subsection.
SECTION 14. FRANCHISE VIOLATIONS
14.1 Procedure for Remedying Franchise Violations
(A) If the County believes that Grantee has failed to perform any obligation under this
Franchise, including but not limited to the Customer Service Standards, the County shall notify
Grantee in writing, stating with reasonable specificity the nature of the alleged default. Grantee
shall have thirty(30) days from the receipt of such notice to:
(1) respond to the County, contesting the County's assertion that a default has
occurred, and request a meeting in accordance with subsection(B),below; or
(2) cure the default; or
(3) notify the County that Grantee cannot cure the default within thirty (30)
days, because of the nature of the default. In the event the default cannot be reasonably
cured within thirty (30) days, Grantee shall promptly take all reasonable steps to cure the
default and notify the County in writing and in detail as to the exact steps that will be taken
and the projected completion date. In such case, the County may set a meeting in
accordance with subsection (B) below to determine whether additional time beyond the
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thirty (30) days specified above is indeed needed, and whether Grantee's proposed
completion schedule and steps are reasonable.
(B) If Grantee does not cure the alleged default within the cure period stated above, or
by the projected completion date under subsection (A)(3), or denies the default and requests a
meeting in accordance with subsection (A)(1), or the County orders a meeting in accordance with
subsection (A)(3), the County shall set a meeting to investigate said issues and the existence of the
alleged default. The County shall notify Grantee of the meeting in writing and such meeting shall
take place no less than thirty (30) days after Grantee's receipt of notice of the meeting. At the
meeting, Grantee shall be provided an opportunity to be heard and to present evidence in its
defense. The meeting minutes shall be recorded and maintained under the County's usual record-
keeping procedures. Nothing herein shall preclude Grantee from making its own record of the
proceeding.
(C) If, after the meeting, the County determines that a default exists, Grantee and the
County may agree on a plan and schedule to cure the default. Absent such agreement, the County
shall order Grantee to correct or remedy the default or breach within thirty (30) days or within such
other reasonable timeframe as the County shall determine. The County shall issue its decision to
the Grantee in writing, setting forth all of the reasons supporting the County's actions. In the
event Grantee does not cure the default within such time to the County's reasonable satisfaction, the
County may:
(1) Recommend the revocation of this Franchise pursuant to the procedures in
subsection 14.2; or
(2) Pursue any other legal or equitable remedy available under this Franchise or
any applicable law.
(D) The determination as to whether a violation of this Franchise has occurred shall be
within the discretion of the County in accordance with law, provided that any such determination
may be subject to review by a court of competent jurisdiction under applicable law.
14.2 Revocation
(A) The County may revoke this Franchise and rescind all rights and privileges
associated with this Franchise in any of the following circumstances:
(1) If Grantee fails to perform any material obligation under this Franchise;
(2) If Grantee willfully fails for more than three (3) days to provide continuous
and uninterrupted Cable Service;
(3) In addition to subsection 14.2 (A)(1), if Grantee attempts to evade any
material provision of this Franchise or to practice any fraud or deceit upon the County or
subscribers;
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(4) If Grantee becomes insolvent, or if there is an assignment for the benefit of
Grantee's creditors;
(5) If Grantee makes a misrepresentation of material fact in the negotiation of
this Franchise; and
(6) If Grantee breaches a material provision of the Customer Service Standards.
(B) Prior to forfeiture or termination of the Franchise, the County shall give written
notice to the Grantee of its intent to revoke the Franchise. The notice shall set forth the exact nature
of the noncompliance. Grantee shall have thirty (30) days from such notice to object in writing and
to state its reasons for such objection and provide any explanation. In the event the County has not
received a timely and satisfactory response from Grantee, it may then seek a termination of the
Franchise in accordance with this subsection.
A copy of the County's written notice of its intent to revoke the Franchise shall be
mailed to the surety on any bond and bank for the letter of credit.
(C) The County shall conduct a public hearing to determine if revocation of the
Franchise is warranted.
(1) At least forty-five (45) days prior to the public hearing, the County shall
notify Grantee in writing of such proceeding in addition to issuing a public hearing notice
that shall establish the issue(s) to be addressed in the public hearing; provide the time, date
and location of the hearing; provide that the Board of County Commissioners shall hear any
persons interested therein; and provide that the Grantee shall be afforded fair opportunity
for full participation, including the right to introduce evidence, to require the production of
evidence, to be represented by legal counsel and to call and question witnesses under oath.
(2) A complete verbatim record and transcript shall be made of such proceeding
and the cost shall be shared equally between the parties.
(3) Within sixty (60) days after the close of the hearing, the Board of County
Commissioners shall issue a written decision regarding the revocation and termination of the
Franchise; or if the breach at issue is capable of being cured by Grantee, direct Grantee to take
appropriate remedial action within the time and in the manner and on the terms and conditions
that the Board of County Commissioners or its designee determines are reasonable under the
circumstances.
(D) If the decision of the Board of County Commissioners is to revoke and terminate the
Franchise, then the security provided for in Section 5.4 (A) in the form of a cash deposit, bond, or
letter of credit, will be forfeited.
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(E) Grantee shall be bound by the Board of County Commissioner's decision to revoke
the Franchise unless an appeal to a court of competent jurisdiction is filed within thirty (30) days of
the date of the Board of County Commissioner's decision.
(F) Grantee shall be entitled to such relief as the court may deem appropriate.
14.3 Termination
(A) If this Franchise expires without renewal and is not extended or is otherwise
lawfully terminated or revoked,the County may, subject to applicable law:
(1) Allow Grantee to maintain and operate its Cable System on a month-to-
month basis until a new Cable Operator is selected or a sale of the Cable System can be
closed; or
(2) Purchase Grantee's Cable System in accordance with the procedures set forth
in subsection 14.4, below.
(B) In the event that a sale has not been completed in accordance with subsections
(A)(1) and/or (A)(2) above, the County may order the removal of the above-ground Cable System
facilities and such underground facilities from the County at Grantee's sole expense within a
reasonable period of time as determined by the County. In removing its plant, structures and
equipment, Grantee shall refill, at its own expense, any excavation that is made by it and shall leave
all rights-of-way, public places and private property in as good a condition as that prevailing prior
to Grantee's removal of its equipment and without affecting electrical or telephone wires or
attachments. The indemnification and insurance provisions and the letter of credit shall remain in
full force and effect during the period of removal, and Grantee shall not be entitled to, and agrees
not to request, compensation of any sort therefor.
(C) If Grantee fails to complete any removal required by subsection 14.3 (B) to the
County's satisfaction, after written notice to Grantee,the County may cause the work to be done and
Grantee shall reimburse the County for the costs and expenses incurred within thirty (30) days after
receipt of an itemized list of the costs and expenses, or the County may recover the costs and
expenses through the security provided for in Section 5.4(A) in the form of cash deposit, letter of
credit or bonds if Grantee has not paid such amount within the foregoing thirty (30) day time
period. The County may seek legal and equitable relief to enforce the provisions of this
subsection.
14.4 Purchase of Cable System
(A) If at any time this Franchise is lawfully revoked, terminated or not extended or
renewed (in accordance with federal law), the County shall have the option to purchase the Cable
System.
(B) The County may, at any time after Franchise revocation, termination or non-
renewal, offer in writing to purchase Grantee's Cable System. Grantee shall have forty-five (45)
days from receipt of a written offer from the County within which to accept or reject the offer. In
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any case where the Grantee agrees to sell to the County and the County elects to purchase the Cable
System, the purchase shall be closed within one hundred eighty (180) days of the date of the
County's audit of a balance sheet and current profit and loss statement of Grantee's Cable System.
The County shall, if applicable, pay for the Cable System by wire transfer or certified funds, and
Grantee shall deliver appropriate bills of sale and other instruments of conveyance.
(C) For the purposes of this subsection, the price for the Cable System shall be
determined as follows:
(1) In the case of the expiration of the Franchise without renewal, at fair market
value determined on the basis of Grantee's Cable System valued as a going concern, but
with no value allocated to the Franchise itself.
(2) In the case of revocation for cause, the equitable price of Grantee's Cable
System.
14.5 Receivership and Foreclosure
(A) At the option of the County, subject to applicable law, this Franchise may be
revoked one hundred twenty (120) days after the appointment of a receiver or trustee to take over
and conduct the business of Grantee whether in a receivership, reorganization, bankruptcy or other
action or proceeding, unless:
(1) The receivership or trusteeship is timely vacated; or
(2) The receiver or trustee has, within one hundred twenty(120) days after their
election or appointment, fully complied with all the terms and provisions of this Franchise,
and has remedied all defaults under the Franchise. Additionally,the receiver or trustee shall
have executed an agreement duly approved by the court having jurisdiction, by which the
receiver or trustee assumes and agrees to be bound by each and every term, provision and
limitation of this Franchise.
(B) If there is a foreclosure, or in the case of a bankruptcy, any involuntary sale of the
whole or any part of the plant, property and equipment of Grantee, the County may serve notice of
revocation on Grantee and to the purchaser at the sale, and the rights and privileges of Grantee
under this Franchise shall be revoked thirty(30)days after service of such notice,unless:
(1) The County has approved the transfer of the Franchise, in accordance with
the procedures set forth in this Franchise and as provided by law; and
(2) The purchaser has covenanted and agreed with the County to assume and be
bound by all of the terms and conditions of this Franchise.
14.6 Alternative Remedies
No provision of this Franchise shall be deemed to bar the County from seeking appropriate judicial
relief. Neither the existence of other remedies identified in this Franchise nor the exercise thereof
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shall be deemed to bar or otherwise limit the right of the County to recover monetary damages for
violations by Grantee, or to seek and obtain judicial enforcement of Grantee's obligations by means
of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. The
County specifically does not, by any provision of this Franchise, waive any right, immunity,
limitation or protection otherwise available to the County, its officers, officials, Board of County
Commissioners, Boards, commissions, agents, or employees under federal, State, or local law
(including, for example, Section 635A of the Cable Act).
14.7 Assessment of Monetary Damages
(A) Because it may be difficult to calculate the harm to the County in the event of a
breach of this Franchise Agreement by Grantee, the parties agree to liquidated damages as a
reasonable estimation of the actual damages. To the extent that the County elects to assess
liquidated damages as provided in this Agreement and such liquidated damages have been paid,
such damages shall be the County's sole and exclusive remedy. Nothing in this Section is
intended to preclude the County from exercising any other right or remedy with respect to a
breach that continues past the time the County stops assessing liquidated damages for such
breach.
(B) Upon completion of the procedures set forth in Subsection 14.1, and from the date
of said completion, or such later date if approved by the County in its sole discretion, the County
may assess against Grantee liquidated damages as outlined below.
(C) Grantee may appeal (by first appealing to the Board of County Commissioners
and then pursuing judicial relief or other relief afforded by the County) any assessment of
liquidated damages within thirty (30) days of receiving written notice of the assessment.
(1) Grantee's obligation to pay the liquidated damages assessed shall be
stayed as of the date the judicial appeal is filed, pending resolution of the appeal.
(D) In no event may liquidated damages be assessed for a time period exceeding sixty
(60) days. If after that amount of time Grantee has not cured or commenced to cure the alleged
breach to the satisfaction of the County, the County may pursue all other remedies.
(1) Pursuant to the requirements outlined in the foregoing Sections, liquidated
damages shall not exceed the following amounts:
(a) For failure to provide data, documents, reports and information as required
by this Franchise fifty dollars ($50)per day per each separate violation;
(b) For failure to test, analyze and report on the performance of the Cable
System as required by this Franchise, fifty dollars ($50) per day per each separate
violation;
(c) For failure to comply with PEG Access requirements as required in
Section 9, one hundred and fifty dollars ($150)per day per each separate violation;
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(d) For failure to submit franchise fee payments in a timely fashion as required
in Section 3, one hundred dollars ($100)per day for each day the violation
continues;
(e) For failure to comply with the indemnification requirements as required in
Section 5, one hundred dollars ($100) per day for each day the violation continues;
(f) For failure to carry all the insurance required in Section 5, one hundred
dollars ($100) per day for each day the violation continues;
(g) For failure to maintain the Cable System functionality as required in
Section 11, one hundred dollars ($100) per day for each day the violation continues;
(h) For failure to answer Subscriber calls as required by the Customer Service
Standards addressed in Section 6 of this Franchise in:
(1) any quarter where the Grantee performs equal to or greater than eighty-five
(85%) and less than ninety percent (90%), the Grantee shall pay the Grantor five
hundred dollars ($500);
(2) any quarter where the Grantee performs equal to or greater than seventy-
five percent(75%) and less than eighty-five percent(85%), the Grantee shall
pay the Grantor one-thousand dollars ($1,000);
(3) any quarter where the Grantee performs equal to or greater than sixty-five
percent (65%) and less than seventy-five percent (75%), the Grantee shall pay
the Grantor three-thousand dollars ($3,000); and,
(4) any quarter where the Grantee performs less than sixty-five percent (65%),
the Grantee shall pay the Grantor five thousand dollars ($5,000).
14.8 Effect of Abandonment
If the Grantee abandons its Cable System during the Franchise term, or fails to operate its Cable
System in accordance with its duty to provide continuous service, the County, at its option, may
obtain an injunction, or operate the Cable System, or designate another entity to operate the Cable
System temporarily until the Grantee restores service under conditions acceptable to the County, or
until the Franchise is revoked and a new franchisee is selected by the County. If the County
operates the Cable System, or designates another entity to operate the Cable System, the Grantee
shall reimburse the County or the County's designee, as applicable, for all reasonable costs,
expenses and damages incurred. If Grantee permanently abandons any of its facilities (specifically,
for a period of one [1] year or more), then, at the County's sole discretion, such facilities may
become the property of the County.
SECTION 15. FRANCHISE RENEWAL
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(A) The County and Grantee agree that any proceedings undertaken by the County that
relate to the renewal of the Franchise shall be governed by and comply with the provisions of
Section 626 of the Cable Act, unless the procedures or substantive protections set forth therein shall
be deemed to be preempted and/or superseded by the provisions of any subsequent provision of
federal or State law.
(B) In addition to the procedures set forth in said Section 626(a), the County agrees to
notify Grantee of the completion of its assessments regarding the identification of future cable-
related community needs and interests, as well as the past performance of Grantee under the then
current Franchise term. Notwithstanding anything to the contrary set forth herein, Grantee and the
County agree that at any time during the term of the then current Franchise, while affording the
public adequate notice and opportunity for comment, the County and Grantee may agree to
undertake and finalize negotiations regarding renewal of the then current Franchise and the County
may grant a renewal thereof. Grantee and the County consider the terms set forth in this subsection
to be consistent with the express provisions of Section 626 of the Cable Act.
SECTION 16. FRANCHISE TRANSFER
(A) The Cable System and this Franchise 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 without the prior written consent of the County, which consent
shall not be unreasonably withheld.
(B) The Grantee shall promptly notify the County of any actual or proposed change in,
or transfer of, or acquisition by any other party of control of the Grantee. The word "control" as
used herein is not limited to majority stock ownership but includes actual working control in
whatever manner exercised. Every change, transfer or acquisition of control of the Grantee shall
make this Franchise subject to cancellation unless and until the County shall have consented
thereto, provided that County's consent shall not be unreasonably withheld.
(C) The parties to the sale, transfer or change of control shall make a written request to
the County for its approval of a sale, transfer or change of control and shall furnish all information
required by law.
(D) In seeking the County's consent to any change in ownership or control, the proposed
transferee or controlling party shall indicate whether, as applicable, 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 it by any court of competent jurisdiction;
37
(3) Its pending any material legal claim, lawsuit, or administrative proceeding
arising out of or involving a cable system; and
(4) Has the legal, financial and technical capability to enable it to maintain and
operate the Cable System for the remaining term of the Franchise.
(E) In reviewing a request for sale,transfer or change of control, the County may inquire
into the legal, technical and financial qualifications of the prospective controlling party or
transferee, and Grantee shall assist the County in so inquiring. The County may condition said sale,
transfer or change of control upon such terms and conditions as it deems reasonably appropriate,
provided, however, any such terms and conditions so attached shall be related to the legal,technical
and financial qualifications of the prospective controlling party or transferee. Additionally, such
Person shall effect changes as promptly as practicable in the operation of the Cable System, if any
changes are necessary to cure any violations or defaults presently in effect or ongoing.
(F) The County shall act by ordinance or resolution on the request within one hundred
twenty (120) days of the request, provided it has received all information required by law, such as a
complete FCC Form 394. Subject to the foregoing, if the County 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 County agree to an extension of time.
(G) Within thirty (30) days of any transfer, sale or change of control, if approved or
deemed granted by the County, Grantee shall file with the County a copy of the deed, agreement,
lease or other written instrument evidencing such sale or transfer of ownership or control, certified
and sworn to as correct by Grantee and the transferee or new controlling entity. In the event of a
sale or transfer of ownership, the transferee shall file its written acceptance agreeing to be bound by
all of the provisions of this Franchise, subject to applicable law. In the event of a change in control,
in which the Grantee is not replaced by another entity, the Grantee will continue to be bound by all
of the provisions of the Franchise and will not be required to file an additional written acceptance.
(H) Notwithstanding anything to the contrary in this Section, the prior approval of the
County shall not be required for any sale, assignment or transfer of the Franchise or Cable System
to an infra-Grantee Affiliate; provided that the proposed assignee or transferee must show legal,
technical and financial responsibility as may be determined necessary by the County and must agree
in writing to comply with all of the provisions of the Franchise. Further, Grantee may pledge the
assets of the Cable System for the purpose of financing without the consent of the County;provided
that such pledge of assets shall not impair or mitigate Grantee's responsibilities and capabilities to
meet all of its obligations under the provisions of this Franchise.
SECTION 17. MISCELLANEOUS PROVISIONS
17.1 Discriminatory Practices Prohibited
Throughout the term of this Franchise, Grantee shall fully comply with all equal employment and
nondiscrimination provisions and requirements of federal, State and local laws, and rules and
regulations relating thereto.
38
17.2 Notices
Throughout the term of this Franchise, 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. At the effective date of this Franchise:
Grantee's address shall be:
K2 Cable Communications, LLC
Attn: Gary Shields
P.O. Box 232
Mead, CO 80542
County's address shall be:
County of Weld
915 10th Street, P.O. Box 758
Greeley, Colorado 80632
17.3 Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted successors and assigns.
17.4 Authority to Amend
In addition to the amendment provisions of Section 3.9, this Franchise may also be amended at any
time by mutual written agreement between the parties.
17.5 Governing Laws
This Franchise shall be governed, construed and enforced in accordance with the laws of the State
of Colorado (as amended), the Cable Act as amended, any applicable rules, regulations and orders
of the FCC, and any other applicable local, State and federal laws, rules, regulations, legislation or
orders (as such now exist, are later amended or subsequently adopted).
17.6 Captions
The captions and headings of this Franchise are for convenience and reference purposes only and
shall not affect in any way the meaning or interpretation of any provision of this Franchise.
17.7 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the
parties, and neither party is authorized to, nor shall either party act toward third persons or the
public in any manner which would indicate any such relationship with the other.
17.8 Waiver
The failure of the County at any time to require performance by Grantee of any provision hereof
shall in no way affect the right of the County hereafter to enforce the same, nor shall the waiver by
the County 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.
39
17.9 Severability
If any Section, subsection, paragraph or provision of this Franchise 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 Section, subsection, paragraph or provision of this
Franchise, all of which will remain in full force and effect for the term of the Franchise.
17.10 Entire Agreement
This Franchise and Exhibits represent the entire understanding and agreement between the parties
hereto with respect to the subject matter hereof and supersede all prior oral and written negotiations
between the parties.
17.11 Force Majeure
In the event Grantee is prevented or delayed in the performance of any of its obligations under this
Franchise by a reason beyond the control of Grantee, Grantee shall have a reasonable time, under
the circumstances, to perform the affected obligation under this Franchise or to procure a substitute
for such obligation which is satisfactory to the County. Those conditions which are not within the
control of Grantee include natural disasters, civil disturbances, power outages, and severe or
unusual weather conditions which have a direct and substantial impact on the Grantee's ability to
provide Cable Services in the County and work delays caused by waiting for utility providers to
service or perform make-ready services on their utility poles or other facilities to which the
Grantee's Cable System is attached.
If Grantee believes that a reason beyond its control has prevented or delayed its compliance with the
provisions of this Franchise, Grantee shall provide documentation as reasonably required by the
County to substantiate the Grantee's claim. If Grantee has not yet cured the deficiency, Grantee
shall also provide the County with its proposed plan for remediation, including the timing for such
cure.
IN WITNESS WHEREOF, this Franchise is signed in the name of the County of Weld,
Colorado,this 8th day/of 0 t , 2007.
Attest: / /loC:.> ILA`
CLERK TO THE BOARD % TY OF WELD, COLORADO
iii Alf-,9
B t '(,,iil
By: �i �y:
D ty Cle to the Board w,," .-"William H. Jerke Chair Pro—Tern
Board of County Commissioners of the
County of Weld
Accepted and approved this 8thday of Oct , 2007.
40
:;i492 -3J73
Attest: K2 COMMUNICATIONS LLC:
By:4,4,: . By:
S� Its: s d two
41
EXHIBIT "B"
CUSTOMER SERVICE STANDARDS
Weld County, Colorado
MINIMUM CUSTOMER SERVICE STANDARDS
FOR CABLE OPERATORS
The following minimum customer service standards shall govern the cable services
provided by the Grantee pursuant to the terms of this Franchise:
SECTION 1. POLICY
A. The Cable Operator shall be permitted to resolve citizen Complaints prior to action or
involvement by the County.
B. If a Complaint is not resolved by the Cable Operator to the citizen's satisfaction,the County
may intervene. In addition, where a pattern of unremedied noncompliance with the
minimum, express provisions of these Customer Service Standards ("Standards") is
identified, the County may choose to follow the procedures contained herein. If the
noncompliance is not addressed to the satisfaction of the County, monetary or other
sanctions may be imposed to encourage compliance.
C. These Standards are intended to be of general application; however, the Cable Operator
shall be relieved of any obligations hereunder if it is unable to perform due to circumstances
beyond its reasonable control, such as natural disasters or in the event of force majeure
affecting a significant portion of the franchise area. These Standards are minimum
standards, and the Cable Operator agrees to be bound by them. The Cable Operator may,
and is encouraged, to exceed these Standards for the benefit of its Customers and such shall
be considered performance for the purpose of these Standards.
D. These Standards supersede any contradictory or inconsistent provision in state or local
law, provided that any provision in federal, state or local law, or in any franchise
agreement or renewal agreement that imposes a higher obligation or requirement than is
imposed by these Standards, shall not be considered contradictory or inconsistent with
these Standards. In the event of a conflict between these Standards and the Franchise
Agreement,the Franchise Agreement shall control.
SECTION 2. DEFINITIONS
When used in these Standards, the following words, phrases, and terms shall have the meanings
given below.
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"Cable Operator" shall mean any person granted a franchise to operate a cable system
within the County. For the purposes of this Franchise, means the Grantee.
"Cable Service" shall mean the one-way transmission to subscribers of Video
Programming, or other programming service and Subscriber interaction, if any, which is
required for the selection or use of such Video Programming or other programming service.
"County" shall mean the County of Weld.
"Complaint" shall mean an initial or repeated Customer expression of dissatisfaction,
whether written or oral, or other matter that is referred beyond a Customer Service
Representative to a supervisor or to a Cable Operator's local office or regional office or
corporate headquarters, or to the County for resolution.
"Customer" shall mean any person who lawfully receives or will receive Cable Service from
the Cable Operator.
"Customer Service Representative" or "CSR" shall mean any person employed by the Cable
Operator to assist, or provide service to Customers, whether by answering public telephone
lines, answering Customers' questions, or performing other customer service related tasks.
"Escalated Complaint" shall mean a complaint that is referred to a Cable Operator by the
County.
"Normal Business Hours" shall mean those hours during which most similar businesses in
the County are open to serve Customers. In all cases, "Normal Business Hours" must
include some evening hours, with Customer Service Representatives available, at least one
night per week, and/or some weekend hours.
"Normal Operating Conditions" shall mean those service conditions that are within the
control of the Cable Operator. Those conditions that are not within the control of the Cable
Operator include, but are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions. Those conditions
that are ordinarily within the control of the Cable Operator include, but are not limited to,
special promotions, pay-per-view events, rate increases, regular peak or seasonal demand
periods, and maintenance or upgrade of the Cable System.
"Service Interruption" shall mean the loss of picture or sound on one or more cable
channels.
"Service Request" shall mean any request or communication initiated by a Customer,
whether written or oral, or referred by the County,to the Cable Operator.
43
SECTION 3. CUSTOMER SERVICE
A. Courtesy
All employees of the Cable Operator shall be courteous, knowledgeable and helpful and shall
provide effective and satisfactory service in all contacts with Customers.
B. Accessibility
1. The Cable Operator shall provide customer service centers ("service centers") conveniently
located for Weld customers. Except as otherwise approved by the County, service centers
shall be open during Normal Business Hours. The service center, shall be staffed with
knowledgeable personnel offering at least the following services to Customers who come to
the local office: bill payment, equipment return and pick up, processing of new or change
of service requests, and response to other Customer inquiries and requests. The County
may approve alternatives for service centers offering lesser services or fewer hours at any
site to which the public has general access. The Cable Operator shall post a sign at the
service center advising Customers of its hours of operation and of the telephone number at
which to contact the Cable Operator if the local office is not open at the times posted. The
Cable Operator shall also provide free exchanges for faulty converters at the Customer's
address if the converter has not been damaged in any manner due to fault or negligence of
the customer .
2. The Cable Operator shall maintain local telephone access lines or a toll free telephone
number that shall be available 24 hours a day, seven days a week for service/repair requests
and billing inquiries.
3. The Cable Operator shall have personnel on call 24 hours a day, 7 days a week, including
legal holidays.
4. Under Normal Operating Conditions, if a customer service telephone call is answered with
a recorded message providing the customer with various menu options to address the
customer's concern, the recorded message must provide the customer the option to connect
to and speak with a Customer Service Representative (CSR) within sixty (60) seconds of
the commencement of the recording. The Cable Operator shall retain sufficient CSRs and
telephone line capacity to ensure that telephone calls to service/repair and billing inquiry
lines are answered by a CSR within thirty (30) seconds from the time a customer chooses a
menu option to speak directly with a CSR. These standards shall be met no less than ninety
percent (90%) of the time under Normal Operating Conditions, measured on a quarterly
basis.
5. After Normal Business Hours, the telephone lines may be answered by a service or an
automated response system, including an answering machine. Inquiries received after
Normal Business Hours must be responded to by a trained Customer Service Representative
on the next business day.
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6. Under Normal Operating Conditions, the Customer will receive a busy signal less than three
percent (3%) of the time. This standard shall be met ninety (90) percent or more of the
time,measured quarterly.
C. Responsiveness
1. Installation
a. The Cable Operator shall complete all standard installations requested by
Customers within seven (7) business days after the order is placed, under Normal
Operating Conditions ninety-five percent (95%) of the time measured on a
quarterly basis, unless the Customer requests a later date for installation.
"Standard" installations are those as defined in Section 1.32 of the Franchise. If
the Customer requests a nonstandard installation, or the Cable Operator
determines that a nonstandard installation is required, the Cable Operator shall
provide the Customer in advance with a total installation cost estimate and an
estimated date of completion.
b. Absent unusual circumstances (such as sprinkler systems or other construction
concerns), all underground cable drops from the curb to the home shall be buried at
a depth of no less than twelve inches (12"), and within a reasonable period of time
(but no later than fourteen [14] days, weather permitting) from the initial
installation, or at a time mutually agreed upon between the Cable Operator and the
Customer. In all instances, the Cable Operator must comply with the State's One
Call requirements.
2. Service Appointments
a. Customers requesting installation of Cable Service or a service request for an
existing installation may choose from the following appointment windows: a
specific time; or at a maximum, a four-hour block of time between 8:00 a.m. and
6:00 p.m., six (6) days per week, or another block of time mutually agreed upon by
the Customer and the Cable Operator for the convenience of the Customer. The
Cable Operator may not cancel an appointment with a Customer after the close of
business on the business day before the scheduled appointment.
b. If the Cable Operator's representative is running late for an appointment with a
Customer and will not be able to keep the appointment as scheduled, the Customer
will be contacted as soon as possible. The appointment will be rescheduled as
necessary at a time mutually agreed upon by the Customer and the Cable Operator
for the convenience of the Customer.
c. The Cable Operator shall be deemed to have responded to a request for service
under the provisions of this section when a technician arrives within the agreed upon
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time, provided that the technician has all necessary parts and equipment to complete
the specified work order. If the Customer is absent when the technician arrives, the
technician shall leave written notification of timely arrival, and will retain a record
of the notice.
3. Outages and Service Interruptions
a. In the event of a system outage (loss of reception on all channels) resulting from
Cable Operator equipment failure affecting five (5) or more Customers, the Cable
Operator shall respond in accordance with its outage response procedures, and in no
event more than two (2) hours after the third (3rd) Customer call is received and
shall remedy the problem as quickly as possible.
b. Under Normal Operating Conditions, the Cable Operator will begin working on
Service Interruptions promptly and remedy the Service Interruption within twenty-
four (24) hours after the interruption becomes known. The Cable Operator must
begin actions to correct other service problems by the end of the next calendar day
after notification of the service problem. All such other service problems shall be
corrected within forty-eight (48) hours or as otherwise agreed to between the Cable
Operator and the Customer.
c. The Cable Operator shall keep an accurate and comprehensive file of any and all
Complaints and service calls regarding the cable system or its operation of the cable
system, in a manner consistent with the privacy rights of Customers, and the Cable
Operator's actions in response to those Complaints. These files shall remain open to
the County during normal business hours and shall be maintained by the Cable
Operator for a period of at least three (3) years. The Cable Operator shall provide
the County an executive summary monthly that shall include information
concerning Escalated Complaints referred by the County to the Cable Operator,
identifying the number and nature of the Escalated Complaints and their disposition.
The summary shall be submitted to the County by the tenth (10`h) day of the
succeeding month. A log of Service Interruptions shall be maintained and provided
to the County upon written request,but no more often than quarterly.
d. Absent unusual circumstances,the Cable Operator shall use its best efforts to correct
all outages and service interruptions for any cause beyond the control of the Cable
Operator within thirty-six (36) hours, after the conditions beyond its control have
subsided but not later than forty-eight(48) hours.
4. Signal Quality
a. The Cable Service signal quality provided by the Cable Operator shall meet or
exceed technical standards established by the Federal Communications Commission
("FCC"). The Cable Operator shall render efficient service, make repairs promptly,
and interrupt service only for good cause and for the shortest time possible.
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Scheduled interruptions shall be preceded by notice and shall occur during periods
of minimum use of the cable system, preferably between midnight and six a.m.
(6:00 a.m.).
b. If a Customer experiences poor signal quality (whether it relates to a visual or audio
problem) which is attributable to the Cable Operator's equipment, the Cable
Operator shall respond and repair the problem no later than the day following the
Customer call provided that the Customer is available and the repair can be made
within the allotted time. If an appointment is necessary,the Customer may choose a
block of time described in Section 3.C.2.a. At the Customer's request, the Cable
Operator shall repair the problem at a later time that is convenient for the Customer.
5. Problem Resolution
A Customer Service Representative shall have the authority to provide credits, waive fees,
schedule service appointments and change billing cycles, where appropriate. Any
difficulties that cannot be resolved by the Customer Service Representative shall be referred
to the appropriate supervisor who shall contact the Customer within twenty-four (24) hours
and resolve the problem within forty-eight (48) hours or within such other timeframe as is
acceptable to the Customer and the Cable Operator.
6. Billing, Credits, and Refunds
a. Bills must be clear, concise and understandable. Bills must be fully itemized,
including, but not limited to, basic, expanded basic, digital and premium service
charges and equipment charges. Bills will also clearly delineate all activity during
the billing period, including optional charges,rebates and credits.
b. In case of a billing dispute, the Cable Operator must respond to a written inquiry
from a Customer within thirty(30) days.
c. The Cable Operator shall allow at least thirty (30) days from the beginning date of
the applicable service period for payment of a Customer's service bill for that period.
If a customer's service bill is not paid within that period of time the Cable Operator
may apply an administrative fee to the customer's account. If the Customer's
service bill is not paid within forty-five (45) days of the beginning date of the
applicable service period, the Cable Operator may perform a"soft" disconnect of the
Customer's service. If a Customer's service bill is not paid within fifty-two (52)
days of the beginning date of the applicable service period, the Cable Operator may
disconnect the Customer's service, provided it has given two (2) weeks documented
notice to the Customer that such disconnection may result.
d. The Cable Operator shall issue credits or refund checks promptly but no later than
either the Customer's next billing cycle following the determination that a credit or
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refund check is warranted or within thirty (30) days, whichever is earlier, or the
return of the equipment supplied by the Cable Operator if service is terminated.
e. In those instances under Normal Operating Conditions where service is not restored
within eight (8) hours,the Cable Operator shall provide a credit to such Customer(s)
upon request as hereinafter set forth for such period and subsequent fractions
thereof The credit shall be in the amount of one-thirtieth (1/30) of the monthly
charge for each tier of service which is unavailable to the Customer(s) per calendar
day or portion thereof.
7. Notice/Work/Treatment of Property
a. Except in the case of an emergency involving public safety or Service Interruption to a
large number of subscribers, the Cable Operator shall give reasonable notice to property
owners or legal tenants prior to entering upon private premises, and the notice shall
specify the work to be performed. In the case of an emergency, however, the Cable
Operator shall attempt to contact the property owner or legal tenant in person, and shall
leave a door hanger notice in the event personal contact is not made. Any work on
private property shall be conducted in accordance with an agreement between the Cable
Operator and the property owner. If damage is caused by any Cable Operator activity,
the Cable Operator shall reimburse the property owner one hundred percent (100%) of
the cost of the damage or replace or repair the damaged property to as good a condition
as before the Cable Operator's activity commenced. Grantee shall give affected property
owners reasonable advance written notice of work on or use of such private property.
b. The Cable Operator shall keep tree trimming to a minimum; trees and shrubs or other
landscaping that are damaged by the Cable Operator or any employee or agent of the
Cable Operator during installation or construction shall be restored to their prior
condition or replaced. Trees and shrubs shall not be removed without the prior
permission of the owner or legal tenant of the property on which they are located.
This provision shall be in addition to, and shall not supersede, any requirement in any
franchise agreement.
c. Nothing herein shall be construed as authorizing access or entry to private property, or
any other property, where such right to access or entry is not otherwise provided by
law.
d. The Cable Operator's employee or agent shall clean all areas surrounding any of their
work sites and ensure that all cable materials have been disposed of properly.
D. Services for Customers with Disabilities
1. For any Customer with a disability, the Cable Operator shall at no charge deliver and pick
up converters at Customers' home, unless the malfunction was caused by the actions of the
48
customer. In the case of a malfunctioning converter, the technician shall provide another
converter, hook it up and ensure that it is working properly, and shall return the defective
converter to the Cable Operator.
2. The Cable Operator shall provide TDD/TTY service with trained operators, who can
provide every type of assistance rendered by the Customer Service Representatives, for any
hearing-impaired Customer at no charge.
3. The Cable Operator shall provide free use of a remote control unit to mobility-impaired
Customers(if disabled, in accordance with subsection 4,below).
4. Any Customer with a disability may request the remote control unit described above by
providing the Cable Operator with a letter from the Customer's physician stating the need,
or by making the request to the Cable Operator's installer or service technician, where the
need for the special service can be visually confirmed.
E. Customer Information
1. Upon installation of service, at least annually to all Customers, at any time the Customer
may request, or upon its own initiative, the Cable Operator shall provide the following
information in clear, concise written form:
a. Products and services offered by the Cable Operator, including channel positions of
programming carried on the system;
b. The Cable Operator's complete range of service options and the prices for those
services and conditions of subscription to programming and other services;
c. Installation and service maintenance policies;
d. Instruction on the use of Cable Service;
e. The Cable Operator's billing, collection and disconnection procedures;
f. Customer privacy rights;
g. All applicable Complaint procedures, and the telephone number and mailing address
of the Cable Operator and the FCC;
h. Use and availability of parental control/lock out devices;
i. Special services for Customers with disabilities;
j. Days,times of operation, and location of the service centers;
k. Copies of all information listed in this section and provided to the customer shall
be provided to the County upon written request, but no more often than once
annually.
2. The County and Customers will be notified of any changes in rates, programming services
or channel positions as soon as possible in writing. Notice must be given to the County and
Customers a minimum of thirty (30) days in advance of such change(s) if the change is
within the control of the Cable Operator. In addition, the Cable Operator shall notify the
County and Customers thirty (30) days in advance of any significant changes in the other
information required by Section E.1. above.
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3. The Cable Operator shall provide written notice to a Customer of any increase in the price
to be charged for equipment associated with the basic service tier at least thirty (30) days
before any proposed increase is effective.
4. All officers, agents, and employees of the Cable Operator or its contractors or
subcontractors who are in personal contact with Customers shall wear on their outer
clothing identification cards bearing their name and photograph. The Cable Operator shall
account for all identification cards at all times. Every vehicle of the Cable Operator shall be
visually identified to the public as working for the Cable Operator. Every vehicle of a
subcontractor or contractor shall be labeled with the name of the contractor or
subcontractor, and shall be further identified as contracting or subcontracting for the Cable
Operator.
5. Each CSR, technician or employee of the Cable Operator in each contact with a Customer
shall state the estimated cost of the service, repair, or installation prior to delivery of the
service or before any work is performed, and shall provide the Customer with an oral
statement of the total charges before terminating the telephone call or before leaving the
location at which the work is to be performed.
F. Customer Privacy
1. The Cable Operator shall not monitor cable television signals to determine the individual
viewing patterns or practices of any Customer without prior written consent from that
Customer, except as needed to maintain system integrity or for other lawful purposes.
2. The Cable Operator shall not sell or otherwise make available Customer lists or other
personally identifiable Customer information without prior written Customer consent
except as otherwise permitted by law, such as if such disclosure is necessary to render, or
conduct a legitimate business activity related to, a Cable Service or other service provided
by the Cable Operator to the Customer.
3. In addition to complying with the requirements in this subsection, the Cable Operator shall
fully comply with all obligations under 47 U.S.C Section 551.
G. Safety
The Cable Operator shall install and locate its facilities, cable system, and equipment in compliance
with all federal, State, local, and Grantee safety standards, and in such manner as shall not unduly
interfere with or endanger persons or property. Whenever the Cable Operator receives notice that
an unsafe condition exists with respect to its equipment, the Cable Operator shall investigate such
condition immediately, and shall take such measures as are necessary to remove or eliminate any
unsafe condition.
H. Satisfaction Guaranteed
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The Cable Operator shall guarantee customer satisfaction for every customer who requests new
installation of Cable Service or adds any additional service to the Customer's subscription. Any
Customer who requests disconnection of such service within 30 days from its date of activation
shall receive a credit to his/her account in the amount of one month's subscription charge for the
service that has been disconnected.
SECTION 4. COMPLAINT PROCEDURE
A. Complaints to the Cable Operator
1. The Cable Operator shall establish written procedures for receiving, acting upon, and
resolving Complaints without intervention by the County (except where necessary) and
shall publicize such procedures through printed documents at the Cable Operator's sole
expense, consistent with Section 3(E)(1)(g) of these Standards.
2. Said written procedures shall describe a simple process by which any Customer may submit
a Complaint by telephone or in writing to the Cable Operator regarding a disputed matter, or
an alleged violation of: (i) any provision of these Standards; (ii) any terms or conditions of
the Customer's contract with the Cable Operator; or(iii)reasonable business practices.
3. Within fifteen (15) calendar days after receiving a Complaint, the Cable Operator shall
notify the Customer of the results of its investigation and its proposed action or credit.
4. The Cable Operator shall also notify the Customer of the Customer's right to file a
Complaint with the County in the event the Customer is dissatisfied with the Cable
Operator's decision, and shall explain the necessary procedures and County contact
information, for filing such Complaint with the County.
5. The Cable Operator's Complaint procedures shall be filed with the County upon written
request.
B. Complaints to the County
1. Any Customer who is dissatisfied with any proposed disposition of a Complaint by a Cable
Operator or who has not received a decision within the fifteen(15) calendar day period shall
be entitled to have the Complaint reviewed by the County.
2. The Customer may initiate the review by filing a written request together with the Cable
Operator's written decision, if any, with the County Attorney.
3. The Customer shall make such filing within thirty (30) days of receipt of the Cable
Operator's decision or, if no decision has been provided, within forty-five (45) days after
filing the original Complaint with the Cable Operator.
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4. If the County decides that further information is warranted, the County may require the
Cable Operator and the Customer to submit, within ten (10) days of notice thereof, a written
statement of the facts and arguments in support of their respective positions.
5. The Cable Operator and the Customer shall produce any additional information, including
any reports from the Cable Operator, which the County may deem necessary to an
understanding and determination of the Complaint.
6. The County shall issue a determination within thirty (30) days after examining the materials
submitted, setting forth its basis for the determination.
7. The County may extend this thirty (30) day time limit for reasonable cause and may
intercede and attempt to negotiate an informal resolution.
8. If the County determines that the Complaint is valid and that the Cable Operator did not
provide the complaining Customer with the proper solution and/or credit, the County may
reverse any decision of the Cable Operator in the matter and/or require the Cable Operator
to grant a solution for the alleged violation in accordance with County recommendation, or
resolve the matter as otherwise mutually agreed upon by the Cable Operator and the
County. If Cable Operator fails to provide a proper solution or credit to Customer, County
may use funds from the security provided for in Section 5.4(A) of the franchise agreement
to provide appropriate credit to Customer.
D. Verification of Compliance
The Cable Operator shall document its compliance with all of the Standards required through
quarterly reports that demonstrate said compliance, or as otherwise requested by the County.
E. Overall Quality of Service
The County may evaluate the overall quality of Customer service provided by the Cable Operator:
1. In conjunction with any performance review provided for in the franchise; or
2. At any other time, in its sole discretion, based on the number of Complaints received by the
Cable Operator or the County, and the Cable Operator's response to those Complaints.
F. Noncompliance with Standards/Remedying Violations
1. Noncompliance with any provision of these Standards may result in a violation of the
franchise. If the County has reason to believe that the Cable Operator has failed to
comply with any of these Standards, or has failed to perform in a timely manner, the
County may pursue the procedures in its Franchise Agreement to address violations of
these Standards in a like manner as other franchise violations are considered.
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2. If the County has reason to believe that the Cable Operator has failed to comply with any of
these Standards, or has failed to perform in a timely manner, or if similar Complaints
repetitively arise, the County may require that the Cable Operator remedy the alleged
noncompliance. If the alleged noncompliance is denied or not remedied to the satisfaction
of the County, the County may opt to follow the liquidated damages procedures, revocation
procedures or seek other remedies set forth in the franchise or in these Standards including
rebates and credits to the customer, withholding of licenses or permits for work by the
Cable Operator or its subcontractors, or pursue any other remedies at law or in equity.
SECTION 5. MISCELLANEOUS
A. Severability
Should any section, subsection, paragraph, or provision of these Standards be 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 section, subsection, paragraph, or
provision of these Standards, all of which shall remain in full force and effect.
B. Non-Waiver
Failure of the County to enforce any provision(s) of these Standards shall not operate as a waiver of
the provision(s) or of the Standards.
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• NOTICE
Pursuant to Chapter 11 of the Weld County Code, a public hearing will be held in the Chambers
of the Board of County Commissioners of Weld County,Colorado,Weld County Centennial Center,
915 Tenth Street, Greeley, Colorado, at the time indicated below,for consideration of granting the
franchise application of K-2 COMMUNICATIONS LLC, including, but not limited to, non-exclusive
rights to further construct or update a cable television system along the streets, alleys, and public
ways of the County.
If a court reporter is desired, please advise the Clerk to the Board, in writing, at least five
days prior to the hearing. The cost of engaging a court reporter shall be borne by the requesting
party. In accordance with the Americans with Disabilities Act, if special accommodations are
required in order for you to participate in this hearing, please contact the Clerk to the Board's Office
at (970) 336-7215, Extension 4226, prior to the day of the hearing.
The complete case file may be examined in the office of the Clerk to the Board of County
Commissioners,Weld County Centennial Center, 915 10th Street, Third Floor, Greeley, Colorado
80631. E-Mail messages sent to an individual Commissioner may not be included in the case file.
To ensure inclusion of your E-Mail correspondence into the case file, please send a copy
to egesick@co.weld.co.us.
DATE: October 8, 2007
TIME: 9:00 a.m.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
• DATED: September 21, 2007
PUBLISHED: September 26, 2007, in the Fort Lupton Press
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