Interim Permit Agreement
City of Boulder, Colorado
TABLE OF CONTENTS
1. Definitions 2
3. Transfers 6
5. Construction Provisions 8
6. System Facilities, Equipment, and Services 11
7. Subscriber Network Channels and Facilities for PEG Use 14
8. Operation and Reporting Provisions 15
9. Customer Service Standards 16
10. Rate Regulation 16
11. Insurance; Surety; Indemnification 17
12. Performance Guarantees and Remedies 18
13. No Evasion 21
14. Rights of Individuals Protected 21
15. Miscellaneous Provisions 21
INTERIM PERMIT AGREEMENT
WHEREAS, on Oct. 28, 1982, TCI Cablevision of Colorado, Inc. ("TCI"), then doing business as "Community Communications, Inc." and as "Boulder Cable TV," entered into a settlement agreement with the City of Boulder, Colorado ("City"), a Colorado home rule city, that provided for a 15-year non-exclusive permit for the provision of cable television services in the City; and
WHEREAS, the City conducted hearings to assess TCI performance under the settlement agreement and permit; to identify the future cable-related needs and interests of the community; to consider the financial, technical, and legal qualifications of TCI; and to determine whether TCI's plans for constructing and operating its system are adequate; and
WHEREAS, the Boulder City Council accepted a preliminary ascertainment report (dated May, 1996) as a valid expression of customer concerns regarding current cable service in the City and as a valid expression of future cable related community needs; and
WHEREAS, the City determined that, subject to the terms and conditions set forth herein and the provisions of Chapter 11-6, B.R.C. 1981 (The Boulder Cable Code, hereinafter referred to as the "cable ordinance"), and other applicable provisions of the Boulder Revised Code and other ordinances of the City, granting TCI a nonexclusive permit is consistent with the public interest; and
WHEREAS, on November 5, 1996, the registered electors of the City voted not to award said nonexclusive permit; and
WHEREAS, the City and TCI have reached agreement on the terms and conditions of an interim permit to be granted to TCI pending completion of renewal/non-renewal proceedings under the federal Cable Act.
NOW, THEREFORE, in consideration of the City's issuance of this interim permit agreement; TCI's promise to provide cable service to residents of the City under the terms and conditions set forth herein; the promises and undertakings herein; and other good and valuable consideration, the receipt and the adequacy of which is hereby acknowledged,
THE SIGNATORIES HEREBY AGREE AS FOLLOWS:
Except as otherwise provided herein, the definitions and word usage set forth in Section 11-6-1, B.R.C. 1981 (The Boulder Cable Code) shall govern this permit agreement. References to any City official or City office also refer to any official or office that succeeds to any or all of the responsibilities of the named official or office, whether by delegation, succession or otherwise. The following definitions shall apply:
1.1 Abandon or Abandonment. The surrender, relinquishment or disclaimer of property or rights to operate a cable system, evidenced by nonuse for a period of at least fifteen (15) days and lack of any significant evidence of intent to resume use.
1.2 Applicable law or laws. All duly enacted and applicable federal, state and city constitutions, charters, laws, ordinance, codes, rules, regulations and orders, as the same may be adopted or amended from time to time. Unless otherwise stated, references to law or laws includes laws now in effect, as the same may be amended from time to time, and new laws.
1.3 Cable act. The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.
1.4 Cable ordinance. Chapter 11-6, B.R.C. 1981, as amended from time to time.
1.5 Cable operator. Defined as in the Cable Act.
1.6 Cable system or system. Defined as in the cable ordinance, as of the effective date of the permit, except that as used herein, it specifically refers to Franchisee's cable system.
1.7 Channel. Defined as in the Cable Act.
1.8 Construction, operation or repair. Encompass, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation and tree trimming.
1.9 Franchise, Franchise agreement or agreement. This interim permit agreement and any amendments, exhibits, or appendices hereto.
1.10 Franchisee. TCI Cablevision of Colorado, Inc., a Colorado corporation, and its lawful and permitted successors and assigns.
1.11 PEG use and similar formulations of this term shall refer to non-commercial educational, governmental and public use of channels on the cable system (including, by way of illustration and not limitation, use of the channels dedicated for PEG use for data transmission).
1.12 Subscriber network. Fibers, coaxial cables and the electronic devices required to activate the same that are primarily used in the transmission of programming to residential subscribers.
2. Scope of Franchise; Limits and Reservations
2.1.1 The permit is subject to, and Franchisee must exercise all rights granted to it in accordance with, this agreement and applicable law, including the cable ordinance. This agreement and all rights and privileges granted under the Franchise are subject to the City's police powers. However, except as expressly stated herein, Franchisee does not waive its right to challenge the lawfulness of any particular enactment, on the ground that a particular action is in excess of the City’s power under Colorado or federal law or violates the Colorado or the United States Constitution, including without limitation a challenge based upon an asserted unconstitutional impairment of contractual rights. Further, this agreement is a contract and, subject to the City’s exercise of its police powers and subject to both parties’ rights under other applicable law, neither party may take any action which materially changes the explicit performance or rights promised in this agreement. Neither the permit nor this agreement confers rights upon Franchisee other than as expressly provided herein. Subject to the foregoing, Franchisee shall provide the number of channels and cable services required hereunder throughout a permit term of approximately three (3) years, through September 20, 2000.
2.1.2 The permit shall be interpreted to convey limited rights and interests only as to those City rights-of-way in which the City has an actual interest and only to the extent and for the purposes set out in this agreement. The grant of the permit is not a warranty of title or interest in any right-of-way; and it does not provide Franchisee any interest in any particular location within the right-of-way. The issuance of the permit does not deprive the City of any powers, rights or privileges it now has or may later acquire in the future to use, perform work on or to regulate the use of and to control the City's rights-of-way covered by the permit, including without limitation the right to perform work on its roadways, rights-of-way and pertinent drainage facilities, by constructing, altering, renewing, paving, widening, grading, blasting or excavating; and the right to build and install systems and facilities, with or without a permit. No rights pass to franchisee by implication.
2.1.3 This permit agreement is intended to set out the terms and conditions under which permittee can continue to operate within the City for a period long enough to permit the City to conduct any proceedings required by 47 U.S.C. §546(a)-(c). This agreement shall not expand or limit any right either party may have under 47 U.S.C. §546, and expressly shall not be considered a new franchise term for purposes of activating the renewal provisions of 47 U.S.C. §546. However, nothing in this permit agreement affects or limits the Franchisee’s renewal rights which have already been invoked pursuant to 47 U.S.C. § 546 nor requires Franchisee to send a new notice thereunder. By way of example, and not limitation, the issuance of this permit shall not require the City to re-commence the ascertainment process contemplated by 47 U.S.C. §546(a). The parties further agree that the inclusion of any provision in this agreement is not an indication that such provision is appropriate given the cable-related community needs and interests of the community; does not in any way represent a finding that the permittee satisfies any of the tests set forth in 47 U.S.C. §546(c); and is not an indication that the parties believe that a particular provision is an appropriate franchise condition.
2.2 Affiliates Must Comply. Any affiliate of or joint venturer with or partner of Franchisee involved in the management or operation of the cable system in the City that would constitute a cable operator of the cable system is subject to the limitations of, and shall comply with the terms and conditions of, this agreement. Franchisee shall be fully liable for an act or omission of an affiliate that controls Franchisee or is responsible in any manner for the management of the cable system that results in a breach of this agreement or a violation of the cable ordinance, as if the act or omission was Franchisee's act or omission.
2.3 Construction. Except for changes made pursuant to the City’s police power, the express terms of the cable ordinance as of the effective date of the permit will prevail over conflicting or inconsistent provisions in this agreement unless this agreement expresses an explicit intent to waive a requirement of the cable ordinance. Changes made to the cable ordinance pursuant to a valid and lawful exercise of the City’s police power will prevail over conflicting or inconsistent provisions in this agreement.
2.4 Relation to Other Provisions of Law. The permit issued and the permit fee paid hereunder are not in lieu of any other required permit, authorization, fee, charge or tax, unless expressly stated herein. Franchisee, among other things, must obtain building permits, and comply with the conditions thereof; comply with zoning laws; and comply with other City codes, ordinances and regulations governing the construction of the cable system.
2.5 Relation to Prior Franchise. As of the effective date of the permit, the settlement agreement between the parties and the permit previously held by Franchisee are superseded and of no further force and effect. Subject to the applicable statute of limitations, nothing in this paragraph shall be deemed to release Franchisee or the City from any liability arising under the prior permit during the time it was in effect.
2.6 Validity. Both parties waive, as of the effective date of the permit, any claim or defense that any provision of the permit, this agreement, or any provision of the cable ordinance as it existed on the effective date of the permit, are unenforceable or otherwise invalid or void. Franchisee specifically reserves any right to challenge any efforts by the City to regulate the provision of telecommunications services, or use of the rights of way to provide such services through the cable ordinance or otherwise. However, the City believes that it has the authority to regulate the provision of telecommunications services, and use of rights-of-way to provide such services, and it is not waiving those rights or making a grant pursuant to those rights under this agreement. Therefore, the parties agree that, if such authority exists, the provisions of this permit and the permit agreement are not in any way a bar to the exercise of that authority, including as to Franchisee, should it ever provide such services.
2.7 Effect of Franchise Acceptance. By accepting the permit, Franchisee:
2.7.1 acknowledges and accepts the City's legal right to issue and enforce the permit;
2.7.2 agrees that it will not oppose intervention by the City in any proceeding affecting its cable system, subject to Section 11.5.2;
2.7.3 accepts and agrees to comply with each and every provision of this agreement; and
2.7.4 agrees that the permit was granted pursuant to processes and procedures consistent with applicable law, and that it will not raise any claim to the contrary.
2.8 Franchisee Bears Its Own Costs. Unless otherwise expressly provided in this agreement, all acts that Franchisee is required to perform under this agreement or the cable ordinance must be performed at its own expense.
2.9 No Waiver.
2.9.1 The failure of the City or Franchisee on one or more occasions to exercise a right or to require compliance or performance under this agreement, the cable ordinance, or any other applicable law, shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing.
2.9.2 Waiver of a breach of this agreement is not a waiver of any other breach, whether similar or different from that waived. Neither the granting of the permit nor any provision herein shall constitute a waiver or bar to the exercise of any governmental right or power of the City, including without limitation the right of eminent domain.
2.10 No Recourse. Without limiting such immunities as the City or other persons may have under applicable law, Franchisee shall have no monetary recourse whatsoever against the City or its officials, boards, commissions, agents or employees for any loss, costs, expense or damage arising out of any provision or requirement of the cable ordinance or because of the enforcement of the cable ordinance or the City's exercise of its authority pursuant to that ordinance, this agreement, or other applicable law, unless the same shall be caused by criminal acts or by willful or gross negligence, and then, subject to the limitations of the Colorado Governmental Immunity Act, Section 24-10-101, et seq., C.R.S. Franchisee shall avoid any willful or negligent impairment of the City’s protections under the Governmental Immunity Act and any amendments or successor statutes, and any other applicable law that may protect the City from liability.
2.11 Amendment of Agreement. The City Council shall liberally amend this agreement (A) upon the application of Franchisee, when necessary to enable Franchisee to take advantage of developments in the field of cable communications that, in the City Council’s opinion, will afford Franchisee an opportunity to serve its customers more efficiently, effectively, or economically; (B) to reflect any expansion of the scope of the Franchise by mutual agreement; or (C) to make any other adjustment deemed appropriate by the City Council and Franchisee to a non-material term of this agreement. Such amendments shall be subject to such conditions as the City Council determines are appropriate to protect the public interest.
2.13 Effect of Change in Law. In the event that state or federal laws, rules, or regulations preempt a provision or limit the enforceability of a provision of this agreement, then the provision shall be read to be preempted to the extent and for the time, but only to the extent and for the time, required by law. In the event such state or federal law, rule, or regulation is subsequently repealed, rescinded, amended, or otherwise changed, so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect and shall thereafter be binding on the parties hereto, without the requirement of further action on the part of the City.
3.2 Application for Transfer To Be Considered In Accordance With Cable Ordinance. Without limiting any provision of Section 2, an application for a transfer will be considered in accordance with the cable ordinance, and the standards set forth therein as of the effective date of the permit shall govern the City's review of the transfer application, subject to changes to reflect changes in applicable law.
3.3 Subsidiaries Eligible To Take Advantage of Intra-Corporate Transfer Exception. Intra-corporate reorganizations are eligible for exemption under the cable ordinance only if the new Franchisee or a guarantor thereof at the time that the reorganization occurs is not in a materially more adverse financial position than the Franchisee at the effective date of the permit and if the new Franchisee abides by the mandatory conditions set forth in Section 3.4 prior to a transfer, except for Section 3.4.3, and provides a warranty that the provisions of this section have been satisfied.
3.4 Mandatory Conditions. No transfer application shall be granted unless the proposed transferee:
3.4.2 Agrees in writing to assume and be responsible for the obligations and liabilities of Franchisee, known and unknown, under this agreement and applicable law;
3.4.3 Provides reasonable performance guarantees to the City that the City considers sufficient and adequate to guarantee the full and faithful performance of all permit obligations by the proposed transferee;
3.4.4 Agrees in writing that approval by the City of the transfer shall not constitute a waiver or release of any rights of the City under this agreement or applicable law, whether arising before or after the effective date of the transfer; and
3.4.5 Posts all required bonds, securities, and the like in its own name prior to the effective date of the transfer.
4. Franchise Fee
4.2 Not in Lieu of Any Other Assessments, Tax or Fee. The permit fee is in addition to all other fees, assessments, taxes or payments that Franchisee may be required to pay under applicable law, subject to any limitations set forth in 47 U.S.C. § 542.
4.3 Payments. Franchise fees shall be paid in accordance with the schedule set forth in the cable ordinance, and late payments shall be subject to the additional charges set forth in the cable ordinance. In addition to paying all fees owed plus interest, in the event that the City reviews Franchisee's permit fee payments, and finds that Franchisee has underpaid the fee owed for any year by five percent (5%) of the amount due or $10,000, whichever is less, Franchisee shall pay the reasonable cost of the City's review.
4.4 No Accord or Satisfaction. No acceptance of any payment by the City shall be construed as a release or an accord and satisfaction of any claim the City may have for further or additional sums payable as a permit fee under the cable ordinance or for the performance of any other obligation of Franchisee.
4.5 Payment Records. Franchisee shall file the reports required by the cable ordinance. The City shall have the right, from time to time, and upon reasonable advance written notice, to inspect, audit, review and copy all books and records of Franchisee reasonably necessary to the determination of whether gross revenues and permit fees have been accurately computed and paid.
4.6 Holdover Term. During any holding over after the scheduled date for expiration or other termination of the Franchise, without the consent of the City, Franchisee shall continue to pay the permit fee as set forth above, as well as the cash grants set forth in Section 7.2.2, in addition to honoring all other provisions of this agreement.
5. Construction Provisions
5.1.1 Except where Franchisee is unable to obtain required easements, Franchisee shall extend cable service to any residence within the City as of the effective date of the permit upon the request of a potential subscriber at its then-prevailing installation charge for such service. There shall be no charge for extending plant to a point where service can be provided from a drop.
5.1.2 For non-residential locations in the City and for areas annexed to the City after the effective date of the permit, Franchisee shall extend such service where there is either a minimum density of 25 residential units per mile or where 15 commercial locations per mile agree to subscribe to cable service for one year. Where these standards are not satisfied, service will be extended upon request at the then-prevailing charge if the person or persons requesting service agree to pay a pro rata share of the cost of extending the plant to a point where service can be provided from a drop.
5.1.3 Nothing in this Section 5.1 shall be construed to prohibit experimental or "test bed" services being extended to a segment of the community during the period of the experiment.
5.1.4 Except as lawful rate orders may otherwise provide, the "then-prevailing installation charge" is the lowest lawful charge that would apply at any given time to a particular class of users. For example, if free installation is then being provided for aerial drops of 125 feet or less, any person requesting cable service that could be served by an aerial drop of 125 feet or less and anyone to whom Franchisee is required to extend services under Sections 5.1.1 and 5.1.2. could take advantage of that installation offer. Similarly, if Franchisee established a lawful fee for installations that recovered additional costs for sidewalk and other pavement cuts which was charged to persons throughout the City, that charge could be applied on a nondiscriminatory basis. If applicable law permits, nothing in this agreement prohibits Franchisee from establishing separate charges for separate classes of drops, such as, for example, underground and aerial drops.
5.1.5 Where electric and telephone service is currently above ground, but a subscriber or potential subscriber requests to locate its cable drop underground, Franchisee shall locate the drop underground, but in addition to the then-prevailing installation charge may charge the subscriber for the actual difference in cost of installing the underground, rather than an aerial drop.
5.2 System Construction Schedule. [RESERVED]
5.3 Construction Standards. Franchisee agrees that:
5.3.1 The construction, operation, and repair of the cable system shall be governed by the cable ordinance, and in all events shall be performed in accordance with all applicable laws.
5.3.2 Subject to this Section 5.3.2, whenever feasible, Franchisee shall install its cable system underground in order to avoid damage from the unique wind storms to which the City is subject. Franchisee shall, at no cost to the City or adjacent subscribers, underground its cable system when poles to which Franchisee’s facilities are attached are no longer in use for electrical or telephone plant. Franchisee shall exercise its best efforts to protect its cable system from flood hazards, by undergrounding creek crossings and burying them deeply enough and with sufficient protection to avoid damage in a 100 year flood event.
5.3.4 Franchisee shall restore and replace public and private property that is disturbed or damaged during the construction, operation, maintenance or repair of the cable system within the times and in the manner provided in the cable ordinance. Franchisee shall compensate any entity whose person or property is damaged by Franchisee, or any contractor, subcontractor or agent of Franchisee in the course of the construction, operation, maintenance or repair of the cable system where the property is not restored by Franchisee.
5.3.5 Franchisee shall be responsible for the acts and omissions of any cable contractor or subcontractor and shall correct such acts or omissions promptly, as if Franchisee performed that work itself. Franchisee shall ensure that each contractor and subcontractor complies with the requirements of this agreement and applicable laws in the course of constructing, operating, maintaining and repairing the cable system. Franchisee shall institute a quality control program adequate to ensure that the work performed by its contractors and subcontractors complies with the requirements of this agreement and applicable law. This Section 5.3.5 does not alter Franchisee’s tort liability to third parties.
5.4 Continuity of Service.
5.4.1 Subject to the provisions of Sections 5.1.2 and 6.8.4, concerning line extensions and test bed, it is the right of each subscriber in the City to receive all available services from Franchisee as long as the subscriber's financial and other obligations to Franchisee are satisfied.
5.4.2 Franchisee shall ensure that all subscribers receive continuous uninterrupted cable service. At the City's request, Franchisee shall operate its system for a temporary period (the "transition period") following the termination of its permit or any transfer as necessary to maintain service to subscribers, and shall cooperate with the City to assure an orderly transition from it to another entity. The transition period shall be no longer than the reasonable period required to select another entity and to build a replacement system, and shall not be longer than thirty-six (36) months, unless extended by the City for good cause. During the transition period, Franchisee will continue to be obligated to comply with the terms and conditions of this agreement and applicable laws.
5.4.3 The City shall be entitled to, at its option, operate the system or designate another entity to operate the system or revoke the permit, if:
22.214.171.124 Franchisee, for any twenty-four (24) hour period, willfully and without cause, refuses to provide cable service in accordance with this permit over a substantial portion of the City;
126.96.36.199 Franchisee abandons its system; or
188.8.131.52 Franchisee engages in any transaction that constitutes a transfer under the cable ordinance without taking all steps and obtaining all approvals required under the cable ordinance as of the effective date of the permit prior to a transfer.
5.4.4 Nothing in this Section 5.4 shall be read to limit any rights the City may have to purchase the cable system.
5.5 Rights Upon Franchise Termination or Revocation. If the City revokes the permit, or the permit otherwise terminates, the City shall have the following rights, in addition to the rights specified in this agreement or under applicable law:
5.5.1 The City may require Franchisee to remove its aerial facilities and equipment at Franchisee's expense. If Franchisee fails to do so within a reasonable period of time, the City may have the removal done at Franchisee's expense.
5.5.2 In the event of revocation, the City, by resolution, may acquire ownership of the cable system at fair market value, with no value assigned to the permit itself, and with the price adjusted downward for the harm to the City or subscribers, if any, resulting from Franchisee’s breach of this agreement or violation of the cable ordinance and further adjusted to account for other equitable factors that may be considered consistent with 47 U.S.C.§ 547.
5.5.3 If the permit is terminated because the cable system is abandoned by Franchisee or Franchisee willfully refuses to provide service to the City or any substantial part of the City in accordance with Section 5.4.4 of this agreement, the City may operate the system or designate another entity to operate the system until timely revocation and shall have no obligation to account to Franchisee for any profits during such period.
5.5.4 In the case of any other termination of the permit, or upon its expiration, the City may, by resolution, acquire ownership of and operate the cable system, at fair market value, with no value assigned to the permit itself, under such terms and conditions as are reasonable and customary in the industry.
6. System Facilities, Equipment, and Services [RESERVED]
6.1 System Upgrade.
6.1.1 Franchisee shall maintain a backup headend in the City until it provides a redundant looped fiber optic link to the Denver headend. At that time, the Denver head end shall be mirrored so as to provide sufficient redundant equipment to allow the Boulder system to function if the primary Denver headend ceases to function for any reason.
6.1.2 Upon completion of any change of the system’s coaxial or fiber optic routes, Franchisee shall provide "as built" maps of the system, without notation of electronic components, in an electronic form compatible with City geographic information systems and other City data systems. The City shall protect confidential commercial data from disclosure under the Colorado Public Records Act, Section 24-72-204, C.R.S.
6.2 Testing Requirements.
6.2.1 Franchisee shall perform acceptance tests on each construction area segment prior to subscriber connection. The tests must demonstrate that the system components are operating as expected and that there is no signal degradation on PEG channels from origination points to subscribers. Franchisee shall have the obligation, without further notice from City, to take corrective action if any segment is not operating as expected.
6.2.2 Every six (6) months, or more frequently, if required by FCC rules, Franchisee shall perform proof of performance tests designed to demonstrate compliance with the cable ordinance, this agreement, and FCC requirements to the extent the same are enforceable by the City. Franchisee shall provide the proof of performance test results promptly to the City upon request. Franchisee shall provide the City at least 10 days advance written notice when a proof of performance or other required test is scheduled so that the City may have an observer present.
6.2.3 The City shall have the right to inspect the cable system during and after its construction to ensure compliance with the cable ordinance, this agreement, and applicable law, and may require Franchisee to perform additional tests based on the City’s investigation of cable system performance or on subscriber complaints.
6.3 Emergency Alert System. Franchisee shall install and thereafter maintain for use by the City an emergency alert system ("EAS") in compliance with federal law as of the effective date of the permit. This EAS shall be a "stand alone" system, which is activated independent of other area cable systems. It shall be installed in at least two locations, so as to be operable even if one location is out of service, and both locations shall be equipped with emergency power sources in case of a loss of public power. If federal law requiring such EAS is repealed, or amended to diminish Franchisee’s obligations, such repeal or amendment shall not affect Franchisee’s obligations under this Section 6.4. Such EAS shall be remotely activated by telephone and shall allow a representative of the City to override the audio and video on all channels on the cable system in the event of a civil emergency and for reasonable tests.
6.4 Connectivity. [RESERVED]
6.5.1 Franchisee shall interconnect the system upon rebuild without charge for PEG purposes only with all adjacent willing cable systems in the City and immediately adjoining the City. A "willing cable system" means any cable system operator who (1) pays its own cost of installation and operation of facilities located within its own territory which are required for the interconnection; (2) pays a pro-rata share of the cost of interconnection, based upon homes it is authorized to pass in the City; and (3) enters into an interconnection agreement with Franchisee on any other mutually agreed terms. Interconnection is required only if technically feasible. Such operators must meet Franchisee’s system at or within the permit area and provide signals of industry standard quality. Notwithstanding the foregoing, Franchisee is responsible for interconnecting with cable systems operating in the City or adjoining areas owned by affiliates of Telecommunications, Inc.
6.5.2 Franchisee shall provide signals to and receive signals from all interconnected operators so as to provide carriage of public, educational and governmental programming that is comparable to services carried on Franchisee's cable system in the City. Nothing in this Section 6.5 alters or increases Franchisee's channel obligations for public, educational and governmental programming. Any proposed interconnection that affects PEG services shall be subject to the approval of the City, which may establish requirements to and from the point of interconnection and for signals intended for PEG channels on the subscriber network to flow without disruption across permit areas and cable systems.
6.6 Full Cable Service to Certain Facilities. Upon the City's request, Franchisee shall provide a drop, providing full basic and expanded basic cable service, and all PEG channels whether or not carried on those service tiers to all educational (K-12) and governmental facilities within the City. These drops shall be free of charge. Franchisee shall provide equivalent service if Franchisee discontinues such tiers of service in their current form. The drop shall be brought to a point within the facility as requested by the facility. Any facility which is already served by a drop will be deemed to have requested that drop, and the drop will be upgraded as necessary to enable the facility to receive any services provided by the system. Franchisee also shall provide any converter boxes that may be required to enable the reception of basic, expanded basic and PEG services on cable-ready television receivers. While service can be extended to any number of outlets by the facility, Franchisee has no responsibility to install internal wiring as part of its obligation to provide a free drop. Franchisee shall provide service capable of serving all rooms in each facility. Franchisee may condition provision of such drops on service (except for PEG channels) not being shown in common areas. Franchisee is not obligated to provide additional standard line amplifiers unless the facility agrees to pay Franchisee its costs for purchasing the additional amplifiers.
6.7 Provision of Broad Categories of Services. This paragraph shall be interpreted consistent with the limitations set forth in 47 U.S.C. §544(b)(2)(B). In addition to such other service requirements as may be contained in this agreement, Franchisee agrees to provide:
6.7.1 National public affairs networks, up to three channels, and in addition PEG channels as set forth in this agreement.
6.7.2 At least sixteen FM radio stations, if and to the extent that Franchisee obtains consent to retransmission of such signals at no cost (the term costs refers to a payment made to the FM station for the right to carry the station’s signal, and does not include copyright payments that may be required).
6.7.3 A survey of subscribers at least once every year for purposes of ascertaining subscriber needs and interests. A copy of the survey shall be provided to the City and shall be made available for public inspection.
6.7.4 Franchisee shall consider using the City as a "test bed" for any new service that it offers on any of its cable TV systems in the United States during the period of the permit and shall inform the City and allow the City to discuss participation in any such experimental services.
6.8 Uses of System. Upon request, Franchisee shall advise the City of all active uses of the system, for both entertainment and other purposes, such as data transmission, local area networks, and voice transmission. Nothing in this section 6.8 shall be construed to convey any regulatory power to the City.
6.9 High Speed Internet Service. Franchisee agrees to work with the City to explore use of high speed Internet service through the cable system. To this end, Franchisee may conduct a trial of high speed Internet service and may offer commercial high speed Internet service to subscribers, as follows:
(A) If offered, Internet service may, at the option of Franchisee, be offered as a premium service. Franchisee will provide and own the transmission path (e.g., cable, headend routers, modulators and demodulators) and will make available, through sale, lease, or otherwise, any subscriber connection equipment (such as modems) required, but shall not prohibit subscribers from using their own compatible equipment.
(B) If offered, the service shall meet the highest industry standards for transmission rates.
(C) If high speed Internet service is offered, Franchisee shall assure that the Boulder Community Network be given an opportunity to connect directly to Franchisee’s Internet service.
7. Subscriber Network Channels and Facilities for PEG Use
7.1.1 Franchisee shall activate and make available free of charge public, educational and governmental ("PEG") channels as specified in this Section 7. The channels provided under this section are subject to Franchisee’s rights to use the channels for the provision of services when they are not being used for their intended purposes.
7.1.2 Franchisee shall maintain its current three PEG channels as activated on the effective date of this permit.
Franchisee shall provide to the City without charge a surplus satellite dish, allowing the City to place satellite programming on PEG channels.
7.1.3 The City shall administer the use and allocate responsibility for the operation of all PEG channels. The City shall have the right to allocate the channels to any entity responsible for managing access channels, or to maintain them as separate channels under the City's own control.
7.1.4 Franchisee shall provide any PEG channels on the basic tier throughout the life of the permit, or if there is no basic tier, shall provide the PEG channels at no charge to subscribers, or otherwise, in accordance with federal law. If the service a subscriber receives is selected through a menu system, PEG channels shall be identified as a choice on the initial menu.
7.1.5 Except as expressly permitted by federal law, Franchisee agrees it will not exercise any editorial control over information created by others and transmitted using this capacity.
7.1.7 Franchisee shall, subject only to contrary requirements under federal and state law, maintain or provide for the government channel the current assignment on the effective date of the Franchise.
7.1.8 Franchisee shall provide the City with a minimum of sixty (60) days notice, and use its best efforts to provide 120 days notice, prior to the time that public, educational, and governmental access channel designations are changed. In addition, Franchisee shall pay to the City an amount equal to the City’s costs in remarketing the location of the access channels and managing the relocation administratively and technologically, up to a maximum of fifty cents ($0.50) per subscriber. Any such amounts paid by Franchisee may be added, at Franchisee’s discretion and in accordance with the applicable FCC regulations, to the price of cable services and collected from such subscribers as "external costs" as such term is required by applicable law. Franchisee, at Franchisee’s expense, shall place the City’s notices of the channel change on its regular monthly billings, upon the City’s request.
7.2 Access Equipment and Facilities.
7.2.1. Franchisee shall provide the City payments as specified below to be used by the City in its sole discretion for PEG related purposes.
7.2.2 Beginning as soon as practicable after the effective date of the permit through the term of the permit, Franchisee shall provide the City with cash grants for capital costs of PEG access of $75,000 per year, which shall be allocated by the City Council.
7.3 Costs Not Franchise Fees. The parties agree that any cost to Franchisee associated with providing any support for PEG use required under this agreement and payments made outside this agreement, if any, are not part of the permit fee, and fall within one or more of the exceptions in 47 U.S.C. § 542.
8. Operation and Reporting Provisions
8.2 Time for Production. Books and records shall be produced to the City at the Boulder Municipal Building, or such other location as the parties may agree. Notwithstanding any provision of the cable ordinance, if documents are too voluminous or for security reasons cannot be produced at the Boulder Municipal Building or mutually agreeable location within the City, then Franchisee may produce the material at another central location, provided it also agrees to pay the additional reasonable costs incurred by the City in reviewing the materials. The parties agree that any amounts paid are not a permit fee within the meaning of 47 U.S.C. §542 and fall within one of the exceptions thereto.
8.3 Reports Required. Franchisee shall file reports that it is required to provide under the cable ordinance as of the effective date of the permit.
8.4 Records Maintained. Franchisee shall maintain the records required by the cable ordinance as of the effective date of the permit.
8.5 Relation to Privacy Rights. Franchisee shall take all steps required, if any, to ensure that it is able to provide the City all information which must be provided or may be requested under this agreement, including without limitation by providing appropriate subscriber privacy notices. Nothing in this Section 8.5 shall be read to require Franchisee to violate 47 U.S.C. § 551. Franchisee shall be responsible for redacting any data that federal law prevents it from providing to the City.
9. Customer Service Standards
10. Rate Regulation
11. Insurance; Surety; Indemnification
11.2 Character of Insurance. Franchisee shall maintain insurance of the character and quality required under the cable ordinance as of the effective date of the permit, and shall provide such proof of insurance as may be required thereunder. General liability policies shall name the City, its officers, boards, commissions, commissioners, agents, and employees as additional insureds as required by the cable ordinance and shall further contain such guarantees against cancellation as are required under the cable ordinance. Such policies shall be in a form reasonably satisfactory to the City. Claims-made policies are not acceptable. Coverage shall be provided for explosion, collapse and underground exposures in all liability policies.
11.3 Proof of Insurance. Franchisee shall file the original Certificate of Insurance with endorsements prior to the commencement of the permit and upon any change of coverage. It shall be subject to City’s reasonable approval and shall clearly state:
11.3.1 Policy number; name of insurance company; name, address and telephone number of the agent or authorized representative; name, address and telephone number of insured; permit number; policy expiration date; and specific coverage amounts;
11.3.2 That thirty (30) days notice shall be given of any cancellation, unqualified as to the acceptance of liability for failure to notify the City; and
11.3.3 That Franchisee’s insurance is primary.
11.4 Material Term. The insurance requirements set forth in this Section 11 shall constitute a material term of the permit.
11.5.1 Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and faithfully defend the City, its officials, boards, commissions, commissioners, agents, and employees, against any and all claims, suits, causes of action, proceedings, and judgments for damages or equitable relief arising out of the construction, maintenance, or operation of its cable system by Franchisee, its employees, affiliates or agents; copyright infringements or a failure by Franchisee to secure consents from the owners, authorized distributors, or permittees of programs to be delivered by the cable system; the conduct of Franchisee's business in the City; or in any way arising out of Franchisee's enjoyment or exercise of the permit granted hereunder, regardless of whether the act or omission complained of is authorized, allowed, or prohibited by applicable law or this agreement, except in cases where liability is (A) solely caused by the gross negligence of the person or persons covered by the indemnity; or (B) results from programming contributed or produced by the City and transmitted over the cable system; or (C) results from the use of the dedicated fibers provided to the City under Section 6.4.
11.5.2 Without limiting the foregoing, Franchisee shall, at its sole cost and expense, fully indemnify, defend, and hold harmless the City, and its officers, agents, and employees from and against any and all claims, suits, actions, liability, and judgments for damages or otherwise subject to Section 638 of the Cable Act, 47 U.S.C. § 558, arising out of or alleged to arise out of the construction, operation, maintenance or repair of its system by Franchisee, its employees, affiliates or agents, including without limitation any claim against Franchisee for invasion of the right of privacy, defamation of any person, firm or corporation, or the violation or infringement of any copyright, trade mark, trade name, service mark, or patent, or of any other right of any person, firm, or corporation. This indemnity does not apply to intervention by the City pursuant to Section 2.7.2 or the programming carried on any channel set aside for public, educational, or government use, or channels leased pursuant to 47 U.S.C. § 532, unless Franchisee was in any respect engaged in determining the editorial content of the program, or adopts a policy of pre-screening programming for the purported purpose of banning or regulating indecent or obscene programming, or contributes or produces programming for such channels.
11.5.3 Upon receipt of a notice to defend from the City, Franchisee shall employ competent counsel to satisfy these indemnities, reasonably acceptable to the City Attorney, and the indemnity provisions include, without limitation, reimbursement to the City for any additional attorneys' fees and for any labor and expenses of the City Attorney’s Office consented to by Franchisee, at the going rate for legal services in Boulder County.
11.6 No Limit of Liability. The provisions of this Section 11 shall not be construed to limit the liability of Franchisee for damages.
12. Performance Guarantees and Remedies
12.1 Letter of Credit.
12.1.1 In satisfaction of the security fund requirements of the cable ordinance, Paragraph 11-6-13(a)(1), B.R.C. 1981, as the same existed on the effective date of the permit, Franchisee shall provide a letter of credit in the amount of $100,000. The letter of credit set forth is Exhibit F to the Greater Metro Telecommunications Consortium ("GMTC") permit may be used to satisfy this requirement, as long as the GMTC agrees to procedures acceptable to the City for draws on such letter of credit.
12.1.2 Franchisee shall provide proof that the letter of credit complies with this agreement and with all requirements of the cable ordinance.
12.1.3 Franchisee agrees that it shall not attempt, through litigation or otherwise, to prevent or inhibit the City from drawing on the letter of credit. Franchisee shall have the right to appeal to the Boulder City Council for reimbursement in the event that it believes that the letter of credit was drawn upon improperly. Franchisee shall also have the right of a de novo court appeal if it believes the letter of credit has not been properly drawn in accordance with this agreement. Any funds that the City erroneously or wrongfully withdraws from the letter of credit shall be returned to Franchisee with interest from the date of withdrawal at a rate equal to the prime rate of interest as quoted by the Bank of New York within thirty (30) business days of a final determination that the withdrawal was in error or wrongful.
12.2 Material Term. The letter of credit is a material term of this agreement.
12.3 Remedies. In addition to any other remedies available at law or equity, the City may apply any one of the following remedies in the event Franchisee violates this agreement or applicable law:
12.3.1 Revoke the permit pursuant to the procedures specified in the cable ordinance. Provided that, any amendments to the cable ordinance or the quasi-judicial procedures of the City, codified at Chapter 1-3, B.R.C. 1981, must provide the same level of due process as is provided under the procedures provided for under the cable ordinance and quasi-judicial procedures as the same existed on the effective date of this permit.
12.3.2 In addition to or instead of any other remedy, seek legal or equitable relief from any court of competent jurisdiction.
12.3.3 Obtain liquidated damages as provided herein.
12.4 Liquidated Damages. Because Franchisee's failure to comply with provisions of its permit will result in injury to the City, and because it will be difficult to estimate the extent of such injury, the City and Franchisee agree to the following liquidated damages for the following violations, which represent both parties' best estimate of the damages resulting from the specified injury. To maintain that estimate, the parties agree that the liquidated damage amounts are in 1996 dollars and shall be increased each year by the full amount of the increase in the U.S. City Average of the Consumer Price Index, once inflation from the effective date of this permit has exceeded twenty percent (20%). Thus, treating 1996 as the base year, indexed as 100, the liquidated damages shall be increased in the first year when the index reaches 120, and once every year after that year as each annual increase becomes available.
12.4.1 For failure to substantially complete construction in accordance with the permit: $2,000/day for each day the violation continues;
12.4.2 For transferring the permit without approval: $1,000/day for each violation for each day the violation continues;
12.4.3 For failure to comply with requirements for public, educational, and governmental use of the System: $250/day for each violation for each day the violation continues;
12.4.4 For violation of customer service standards: $250 per violation except for violations of applicable customer service standards for which Franchisee’s compliance is not measured in terms of its response to individual customers, $1,250 a month for any period during which it fails to meet applicable performance standards; and
12.4.5 For all other material violations of this agreement for which actual damages may not be ascertainable: $100/day for each violation for each day the violation continues.
12.5 Notice and Cure. Prior to initiating a revocation action or collecting any liquidated damages, the party seeking relief shall provide the other party with a detailed written notice of any permit violation upon which it proposes to take action, and a sixty (60) day period within which the party may: (1) demonstrate that a violation does not exist or cure an alleged violation, or (2) if the nature of the violation prevents correction of the violation within sixty (60) days, to initiate a reasonable plan of action to correct such violation (including a projected date by which it will be completed) and notify the party seeking relief of such plan of action or (3) show that the defect in performance should be excused. However, in any case involving repeated violations, the time period allowed for cure may be reasonably reduced at the election of the City, and revocation proceedings shall follow the process set forth at subsection 11-6-12(d), B.R.C. 1981, as amended.
12.5.1 If Franchisee fails to disprove or correct the violation within sixty (60) days or, in the case of a violation which cannot be corrected in sixty (60) days, if Franchisee has failed to initiate a reasonable plan of corrective action and to correct the violation within the specified time frame, then City may declare Franchisee in default, which declaration must be in writing. In the event that the City declares Franchisee in default, the City shall have the right to collect liquidated damages from the date of the declaration of default, or to exercise any other rights and remedies afforded to the City in law or equity.
12.5.2 Within fifteen (15) days after receipt of a written declaration of default from the City, Franchisee may request, in writing, a public hearing before the City Council pursuant to the procedures specified in the cable ordinance. Provided that, any amendments to the cable ordinance or the quasi-judicial procedures of the City, codified at Chapter 1-3, B.R.C. 1981, must provide the same level of due process as is provided under the procedures provided for under the cable ordinance and quasi-judicial procedures as the same existed on the effective date of this permit. The City will conduct such a hearing before collecting liquidated damages.
12.6 Revocation, or Termination of Franchise. In addition to all other rights of the City under this agreement, the City shall have the right to revoke the permit: for the reasons specified in the cable ordinance as of the effective date of the permit; for a felony conviction for defrauding or attempting to defraud the City or subscribers; if Franchisee abandons the cable system, or, for any 24 hour period, willfully refuses to provide service to the City or any substantial portion of the City in accordance with this agreement; and as otherwise provided herein.
12.7 Remedies Cumulative. All remedies under the cable ordinance and this agreement are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve Franchisee of its obligations to comply with its permit. Remedies may be used singly or in combination; in addition, the City may exercise any rights it has at law or equity. Except that, the City is not entitled to recover damages for the same injury under two separate sections where doing so would result in a double recovery.
12.8 Relation to Insurance and Indemnity Requirements. Recovery by the City of any amounts under insurance, the construction/performance bond, the letter of credit, or otherwise does not limit Franchisee's duty to indemnify the City in any way; nor shall such recovery relieve Franchisee of its obligations under the permit, limit the amounts owed to the City, or in any respect prevent the City from exercising any other right or remedy it may have.
13. No Evasion
Franchisee shall not take any action to evade any provision of this agreement or the cable ordinance. This provision shall be read to prohibit, among other things, Franchisee requiring any subscriber to waive any right (including without limitation privacy rights) as a condition of obtaining service.
14. Rights of Individuals Protected
No cable, line, wire, amplifier, converter, or other piece of equipment owned or controlled by Franchisee shall be installed by Franchisee inside a dwelling or other occupied structure without first securing the written permission of the owner of the property involved, except in those cases where Franchisee is permitted by federal or state law to install such facilities and equipment inside the structure without permission.
15. Miscellaneous Provisions
15.1 Compliance With Laws. Franchisee and the City shall comply with all applicable laws and regulations as they become effective, unless otherwise stated herein.
15.2 Governing Law. This agreement shall be governed in all respects by the laws of the State of Colorado.
15.3 Force Majeure. Franchisee shall not be deemed in default with provisions of its permit where performance was rendered impossible by war or riots, civil disturbances, unforeseeable shortage of materials or qualified labor, strikes, floods, or other natural catastrophes beyond Franchisee's control, and the permit shall not be revoked or Franchisee penalized for such noncompliance, provided that Franchisee takes immediate and diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with its permit without unduly endangering the health, safety, and integrity of Franchisee's employees or property, or the health, safety, and integrity of the public, public rights-of-way, public property, or private property.
15.4 Notices. Unless otherwise expressly stated herein, notices required under this agreement shall be faxed or mailed first class, postage prepaid, to the addressees below. Each party may change its designee by providing written notice to the other party.
15.5 Calculation of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required hereunder and a period of time or duration for the completion thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of duration/time.
15.6 Time of Essence; Maintenance of Records of Essence. In determining whether Franchisee has substantially complied with its permit, the parties agree that time is of the essence to this agreement. The maintenance of records and provision of reports in accordance with the permit is also of the essence to this agreement.
15.7 Captions. The captions and headings of this agreement are for convenience and reference purposes only and shall not affect in any way the meaning and interpretation of any provisions of this agreement.
15.8 Entire Agreement. This agreement represents the entire agreement between the parties.
15.9 Counterparts. This agreement may be executed in counterparts.
City of Boulder,
Richard E .Franklin, ___________________________________, hereby accepts unconditionally and agrees to be bound by all the terms and conditions of this Interim Permit Agreement of Boulder, Colorado, dated September 19, 1997, as granted by the Boulder City Council.
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me, a Notary Public, this _____ day of _______________, 1997, by Richard E. Franklin.
Witness my hand and official seal.
My commission expires:
Last Updated on Thursday, 12 July 2012 08:38