HomeMy WebLinkAbout08109ORDINANCE NO. 8109
AN ORDINANCE GRANTING TO COMCAST OF
COLORADO IV, LLC A NONEXCLUSIVE FRANCHISE TO
CONSTRUCT, INSTALL, AND OPERATE A CABLE
SYSTEM AND PROVIDE CABLE TELEVISION SERVICE
WITHIN THE CITY AND IN CONNECTION THEREWITH,
TO MAKE REASONABLE AND LAWFUL USE OF THE
STREETS, PUBLIC EASEMENTS AND OTHER PUBLIC
PLACES WITHIN THE CITY
WHEREAS, pursuant to the provisions of 47 U.S.C. 1546(h), Comcast of
Colorado IV, LLC, a Delaware limited liability company (hereinafter "Company ") has
submitted a proposal for the renewal of a non - exclusive cable television franchise within
the City of Pueblo which is attached hereto styled "Franchise Agreement Between the
City of Pueblo and Comcast of Colorado IV, LLC" (hereinafter, "Franchise Agreement ");
and
WHEREAS, the City Council finds and determines that the Franchise Agreement
is fair and reasonable and in the best interest of the residents of the City;
NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Franchise Agreement between the City of Pueblo and Company, a true copy
of which is attached hereto, is hereby approved by Council and a non - exclusive cable
television franchise ( "Franchise ") is hereby granted in accordance with the terms and
conditions of the Franchise Agreement, subject to (a) Company's unconditional written
acceptance thereof within twenty (20) days of the date of final approval of this
Ordinance, and (b) Company's execution of the separate letter agreement also attached
hereto ( "Letter Agreement ").
SFrTinN 9
Subject to Company's timely unconditional written acceptance of the Franchise
and execution of the separate Letter Agreement, the term of the Franchise shall
commence thirty (30) days after the date of final approval of this Ordinance.
SECTION 3
The President of the City Council is hereby authorized and directed to execute
the Franchise Agreement by and on behalf of the City of Pueblo, and the City Clerk is
directed to affix the seal of the City thereto and to attest same. The City Manager is
hereby authorized and directed to execute the Letter Agreement by and on behalf of the
City of Pueblo.
SECTION 4
This Ordinance shall take effect immediately upon final passage and approval;
provided, however, that neither the Franchise nor the Franchise Agreement shall
become effective until and unless Company timely files with the City Clerk its written
unconditional acceptance thereof in accordance with Section 1 of this Ordinance.
INTRODUCED: November 9, 2009
BY: Judy Weaver
COUNCIL PERSON
�.
PRESIDENTaf City Council
A77TSTFD DY:
CITY CLERK
PASSED AND APPROVED: November 23, 2009
ED
Background Paper for Proposed
ORDINANCE
AGENDA ITEM # R -7
DATE: November 9, 2009
DEPARTMENT: Law Department
TITLE
AN ORDINANCE GRANTING TO COMCAST OF COLORADO IV, LLC A
NONEXCLUSIVE FRANCHISE TO CONSTRUCT, INSTALL, AND OPERATE A CABLE
SYSTEM AND PROVIDE CABLE TELEVISION SERVICE WITHIN THE CITY AND IN
CONNECTION THEREWITH, TO MAKE REASONABLE AND LAWFUL USE OF THE
STREETS. PUBLIC EASEMENTS AND OTHER PUBLIC PLACES WITHIN THE CITY
ISSUE
Should the City Council approve an Ordinance granting a five -year cable television
franchise to Comcast?
RECOMMENDATION
Approval.
BACKGROUND
Comcast of Colorado IV, LLC ( "Comcast ") is the successor in interest to TCI
Cablevision of Colorado, Inc. ( "TCI ") which had been granted a cable television
franchise (the "Franchise ") by Pueblo voters in 1993. Under that Franchise, the
operator was granted a non - exclusive right to construct and operate a cable television
system within the City, and in connection therewith, was allowed to use the City's
streets and rights of way for placement of wires and other Cable -TV related facilities.
Nearing the end of the 1993 Franchise term, Comcast had expressed its intent to
renew. Cable -TV franchise renewals are governed generally by Section 626 of the
Cable Communications Policy Act of 1984, 47 USC 546 (the "Act "). Consequently, the
City initiated the formal statutory process in April 2004 with the adoption of Resolution
No. 10114.
Resolution No. 10114 commenced the "ascertainment phase" of the renewal process
which afforded the public an opportunity to participate for the purpose of identifying the
community's future cable - related needs and interests and reviewing the performance of
the cable operator under the current franchise. Comment was solicited on numerous
issues and subissues via published notices, public hearings and a survey.
At the conclusion of the Ascertainment Phase, Council adopted Resolution No. 10815
on September 11, 2006. This Resolution adopted findings of fact and conclusions
regarding cable - related community needs and interests and the performance of the
cable operator under the existing franchise. Further, the Resolution adopted minimum
requirements for a cable television renewal proposal.
Based upon these proceedings, the City requested that Comcast submit its franchise
renewal proposal.
Rather than submit a proposal at that time, Comcast and City staff pursued informal
negotiations pursuant to the authority of 47 U.S.C. 1546(h). That effort has resulted in
the draft franchise agreement which would be approved by adoption of the Ordinance
now before Council.
Under Section 16 -2 of the Pueblo Charter, franchises may only be granted by vote of
the City's electors. However, in Qwest Broadband Services, Inc. v. City of Boulder 151
F.Supp. 2d 1236 (2001), Judge Babcock ruled that a provision of Boulder's Charter
requiring that franchises be approved by voters in an election conflicts with 1 541 of the
Cable Act relating to the granting of such franchises, and was therefore preempted by
federal law. By extension, this holding would apply to franchise renewals under 1 546 of
the Cable Act as well. Based upon this persuasive federal authority, we are of the
opinion that City Council may grant the franchise.
The following is a summary of the provisions of the proposed franchise and
accompanying "side letter" under which the Company makes additional binding
commitments:
Key Provisions of Franchise
$ Comcast allowed to place wire /fiber in or above streets and rights of way subject
to all City requirements for excavation permits, relocation at Comcast's expense
for public projects, and all other City requirements.
$ Comcast to maintain an office /customer service center within the City.
$ Comcast pays to City 5% of its Gross Revenues from cable tv service as
franchise fees. Gross Revenue includes advertising revenues as well as
subscriber fees. City retains audit rights. ( Comcast also collects and remits
sales tax on equipment rentals.)
S City retains rights to: revoke the franchise for breach, require extension of
service, require efficient service, establish standards of service, fully control use
of its streets and rights of way, and to impose regulations under its police
powers.
S Term of franchise is 5 years commencing 30 days after Council approval
provided Comcast accepts the franchise within 20 days of Council approval.
S Customer service standards promulgated by FCC apply.
S Franchise can be reopened if the law changes allowing City to require or
negotiate additional provisions, such as ala carte pricing.
S Basic cable tier B requires broad categories of cable programming and includes
the FCC must -carry channels (local broadcast channels) and the "Public
Educational and Government ( "PEG ") channels. This allows Comcast greater
flexibility to match public demand and pricing needs.
S Physical system must meet at least 750 MHz throughput through the entire
system (current requirement is 550 MHz), have back -up power supplies and
automated outage monitoring system, meet the FCC technical standards and be
consistent with contemporary Colorado cable industry standards.
S Continue 3 PEG channels with 2 upstream links (City Hall and PCC).
S Provides for Comcast to collect and remit to City a 504 per month per subscriber
PEG access support fee for capital improvements for PEG. These fees are in
addition to franchise fees.
S Provides that if the City requests it, Comcast will build an Institutional Network at
City's expense.
S Provides free cable service at all public schools, colleges and universities, City or
County -owned community centers, City Hall, all police and fire stations, all City -
owned buildings used for municipal purposes, and the main library.
S Provides traditional remedies for breach and adds liquidated damages as follows:
$200 /day for failure to comply with PEG requirements
$150 per violation for violations of customer service standards, except that
violations that are not measured in terms of response to individual customers
is $250 /mo for periods when it fails to meet performance standards.
S Comcast will comply with all privacy laws concerning Subscriber information.
Provisions of Side Letter
$ $50,000 technical grant to City to be used for any technology purpose. Company
may recover over term of franchise from subscribers without interest
(approximately 3.5 cents per subscriber per month).
$ Company will reimburse for channel realignment of PEG channels $2,500 per
channel move and include information in bills and public service spots.
$ Company will make a lump sum advance to City of up to $202,000 for PEG
capital use, which will be recovered from the 504 fee plus interest at 4.5% until
reimbursed. At that time, City Council can pass a resolution continuing the 504
fee to be paid quarterly to City for PEG capital purposes.
FINANCIAL IMPACT
Revenues for 2010 attributable to operator under the Franchise are estimated as
follows, based upon information provided by the Finance Department:
Anticipated annual franchise fees: $950,000
Anticipated annual sales tax: $732,000
E911 Fees: $ 25,200
Telephone Occupation Tax': $ 18,000
PEG (Capital) Annual Fees': $104,000
'(will be applied against $202,000 advance)
Technology Grant (one time): $ 50,000
'Delinquent 2009
FRANCHISE AGREEMENT
BETWEEN THE CITY OF PUEBLO AND COMCAST OF COLORADO IV, LLC
WHEREAS, the City Council of Pueblo, a Municipal Corporation (hereinafter referred to as
"City ") has undertaken and completed an ascertainment process to determine future cable - related
community needs and interests; and
WHEREAS, the City has determined that any franchise must be subject to the terms and
conditions set forth herein in order to serve the public interest; and
WHEREAS, Comcast of Colorado W, LLC ( "Comcast ") is willing to accept the terms and
conditions of this Franchise Agreement; and
WHEREAS, the City has determined that, subject to the terms and conditions set forth
herein and the applicable provisions of the Pueblo Charter and Pueblo Municipal Code, as amended,
granting a non - exclusive cable television franchise to Comcast pursuant to this Franchise
Agreement is consistent with the public interest;
NOW, THEREFORE, in consideration of the City's grant of a franchise, Comcast's
agreement to provide cable services to residents herein, the provisions, undertakings, terms,
conditions and covenants stated herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
PURPOSES
The purposes of this Franchise include, but are not limited to, the promotion of the general
welfare of the citizens of the City of Pueblo by:
1. Conferring authorization for the nonexclusive provision of Cable Television
Services within the City by Comcast of Colorado IV, LLC (hereinafter "Franchisee ");
2. Establishing through the Franchise a regulatory framework for the administration of
the Franchise in order to insure that the potential recreational, technical, educational, social,
economic and other advantages of cable television will in fact inure to the benefit of the City and its
residents;
3. To provide through the Franchise for the equal and nondiscriminatory provision of
cable television services by Franchisee throughout the entire City;
4. To insure that Franchisee has the requisite legal, financial, and technical
qualifications to construct, operate, and maintain the Cable Television System;
5. To regulate the operations of Franchisee for the purposes of protecting and
promoting the public health, peace, safety, and convenience.
The provisions of this Franchise shall not be deemed to confer any right upon Franchisee
except as expressly provided herein.
ARTICLE II
As used in this Franchise, the following terms, phrases, and words shall be ascribed the
following meanings, unless the context indicates otherwise, provided, if any definition contained in
the Franchise conflicts with the definition of such term, phrase or word by the Cable Act or
regulations issued thereunder, the Cable Act's or regulations' definition shall control to the extent of
such conflict. The word "shall" is mandatory, and the word "may" is permissive. Words not
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defined herein shall be given their common and ordinary meanings, consistent with the context in
which such words are used and the purposes of this Franchise.
1. "Access" means the availability for noncommercial use by various agencies,
institutions, organizations, groups and individuals in the community, including the City and its
designees, of the Cable System to acquire, create, receive, and distribute video Cable Services and
other services and signals as permitted under applicable law including, but not limited to:
a. "Public Access" means Access where community- based, noncommercial
organizations, groups or individual members of the general public, on a nondiscriminatory basis, are
the primary users.
b. "Educational Access" means Access where schools are the primary users
having editorial control over programming and services. For purposes of this definition, "school'
means any State - accredited educational institution, public or private, including, for example,
primary and secondary schools, and public colleges and universities, but excluding home schools.
C. "Government Access" means Access where governmental institutions or
their designees are the primary users having editorial control over programming and services.
2. "Access Channel' means any Channel, or portion thereof, designated for Access
purposes or otherwise made available to facilitate or transmit Access programming or services.
3. "Basic Cable Service" shall mean any service tier which includes the retransmission
of local television broadcast signals.
4. "City" shall mean the municipal corporation designated as the City of Pueblo, a
home rule city of the State of Colorado and including territory that currently is, or may in the future
be, included within the boundaries of the City of Pueblo.
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5. "Cable Service" or "Cable Television Service" shall mean (a) the one -way
transmission to subscribers of (i) video programming, or (ii) other programming service, and (b)
subscriber interaction, if any, which is required for the selection or use of such video programming
or other programming service.
6. "Cable System" or "System" shall mean 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 (A) a facility that serves
only to retransmit the television signals of 1 or more television broadcast stations; (B) a facility that
serves subscribers without using any public right -of -way; (C) 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 Section 621(c) (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; (D) an open video system that complies with
federal statutes; or (E) any facilities of any electric utility used solely for operating its electric
utility systems.
7. "Cable Act' shall mean the Cable Communications Policy Act of 1984, as amended
(47 U.S.C. 521, et seg .).
8. "Channel' or "Cable Channel' means a portion of the electromagnetic frequency
spectrum, which is used in a cable system and capable of delivering an analog or digital television
channel, as television channel is defined by the FCC by regulation.
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9. "Council' or "City Council" means the legislative body of the City of Pueblo.
10. "Facilities" means all physical components which are located within the City and
are used for, or reasonably necessary, useful or convenient for, Franchisee to provide Cable
Television Service within the territorial boundaries of the City.
11. "FCC" shall mean Federal Communications Commission or successor
governmental entity.
12. "Franchise Area" shall mean all areas for which the Franchisee is authorized to
serve within the municipal limits of the City of Pueblo, as said boundaries currently exist, and in the
future may be increased or decreased.
13. "Franchisee" shall mean Comcast of Colorado IV, LLC.
14. "Gross Revenues" shall mean all amounts derived by the Franchisee, in whatever
form and from all sources, including cash, credits, property of any kind or nature or other
consideration received directly or indirectly by the Franchisee, its affiliates, subsidiaries, parents,
and any other person or entity in which Franchisee has a direct financial interest or which has a
direct financial interest in the Franchisee, from the operation of the Cable Television System to
provide Cable Service in the Franchise Area. Gross Revenues shall be calculated in a manner
consistent with Generally Accepted Accounting Principles ( "GAAP ").
"Gross Revenues" shall include, valued at market price levels, the value of any goods,
services, or other remuneration in non - monetary form derived by the Franchisee and said affiliates,
subsidiaries, parents, and other related persons and entities, from the operation of the Cable
Television System within the Franchise Area to the extent such remuneration is treated as revenue
under GAAP. "Gross Revenues" shall also include revenues derived from the installation or rental
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of equipment, including set top boxes and cable cards, together with all revenue derived from local
advertising carried over the Cable Television System and a fair and proportionate share of revenue
derived from regional and national advertising carried over the Cable Television System, calculated
in a manner consistent with GAAP.
"Gross Revenues" shall not include (1) any taxes on services furnished by the Franchise
which are imposed directly upon any subscriber or user by the United States, State of Colorado or
local agency and collected by the Franchisee on behalf of government; (2) revenue received directly
from the Franchisee by an affiliate, subsidiary or parent of the Franchisee or any other person or
entity in which the Franchisee has a financial interest or which has a financial interest in the
Franchisee when the revenue received has already been included in reported Gross Revenues under
this Franchise; (3) revenue received by such an affiliate, subsidiary, parent, person or entity from the
sale of national advertising shown on programs distributed on a national basis by the affiliate,
subsidiary, parent, person or entity when, consistent with GAAP, the Franchisee is not entitled to,
nor does it receive, any proportionate revenue or credit from the affiliate, subsidiary, parent, person
or entity on account of carriage over the Cable Television System, and (4) PEG Fees.
15. "Headend" means any facility for signal reception and dissemination on a Cable
System, including cables, antennas, wires, satellite dishes, monitors, switchers, modulators,
processors for Broadcast Signals, equipment for the Interconnection of the Cable System with
adjacent Cable Systems and Interconnection of any networks which are part of the Cable System,
and all other related equipment and facilities.
16. 1-Net" means the institutional network connecting public facilities and
organizations within the Service Area, as described further in this Agreement.
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17. "Leased Access" shall mean the use on a fee - for - service basis of the Cable
Television System by business enterprises (whether profit, nonprofit or governmental) to render
services to the citizens of the City.
18. "Premium Service" means a single stand alone service for which a separate charge
is made, and which is supported primarily by subscriber charges.
19. "Public Easements" means easements available for use under this Franchise as
permitted by the City.
20. "Public Places" means alleys, viaducts, bridges, roads, lanes, streets, and public
easements in the City, but does not include conduit within such locations held by the City for
present or future municipal use.
21. "Service Area" shall mean the geographic area within the territorial boundaries of
the City of Pueblo, as said boundaries currently exist, and in the future may be increased or
decreased.
22. "Streets" shall mean the surface of and the space above and below any street, road,
highway, freeway, avenue, boulevard, road, lane, utility right -of -way or any other easement which
now or hereafter has been dedicated for the provision of public or quasipublic services to residential
or commercial properties, and in which the City is expressly or implied authorized or empowered to
permit use for the installation and operation of a Cable Television System. As used in this
Franchise, the word "street" or "streets" shall include public easements and public places.
23. "Subscriber" shall mean a lawful recipient of service from the Cable Television
System.
24. "System" shalt mean the Cable Television System.
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25. "User" shall mean a party utilizing one or more channels of the Cable Television
System for purposes of production or transmission of material to subscribers, as contrasted with
receipt thereof in a subscriber capacity.
26. "Dwelling Units" shall mean residential living facilities as distinguished from
temporary lodging facilities such as hotel and motel rooms and dormitories, and includes, but is not
limited to, single family residential units and individual apartments, condominium units, mobile
homes within mobile home parks, and other multiple family residential units.
ARTICLE III
GRANT OF FRANCHISE
The City hereby grants to the Franchisee, for the period specified in, and subject to
the conditions, terms and provisions contained in this Franchise, a nonexclusive and revocable
authorization to make reasonable and lawful use of the Streets, Public Easements and other Public
Places, as well as such private places as Franchisee is authorized to use in accordance with law or
instruments of conveyance, within the City to construct, operate, maintain, reconstruct and rebuild a
Cable System for the purpose of providing Cable Service. Nothing herein shall be construed to
prohibit the Franchisee from providing any other service over the Cable System, so long as such
service is provided in a manner fully consistent with applicable law, including, but not limited to,
compliance with all ordinances and regulations of the City which may be applicable thereto. The
authorization granted herein is subject to the City's prior and paramount right to use of the streets,
public easements and other public places for municipal purposes, and is also subject to City's
exercise of lawful police power, including, but not limited to, zoning, subdivision, permit and
building code requirements. This authorization shall extend to all areas of the City as it is now
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constituted, and to additional areas as the City may increase in size by annexation or otherwise.
2. Exclusions and Limitations.
a. The authorization to use and occupy said streets, public easements, and other
public places for the purposes set forth herein is not, and shall not be deemed to be, an exclusive
franchise, and the City reserves the right to make or grant a similar authorization to such use of
streets, public easements and other public places to any other person, firm or corporation.
b. The City retains the following rights in regard to this Franchise.
(1) To revoke the Franchise for substantial misuse, substantial non -use
or material failure of Franchisee to substantially comply with the provisions hereof;
(2) To require proper and adequate extension of plant, facilities and
service consistent with this Franchise;
(3) To require the maintenance of plant, facilities and services at a
standard of efficiency consistent with this Franchise;
(4) To establish reasonable standards of service and quality of products
and to prevent discrimination in service or rates to extent permitted within this Franchise
and by applicable law;
(5) To require continuous and nondiscriminatory service to residents in
accordance with the terms of this Franchise throughout the entire period hereof.
(6) To use, control and regulate the use of streets, public easements and
other public places and the space above and beneath them, including, without limitation the
right to perform work on its streets, roadways, rights of way, public easements and public
places, by constructing, altering, renewing, paving, widening, grading, blasting or
excavating; the right to build and install systems, facilities and projects of any nature; and
the right to require relocation of Franchisee's facilities in accordance with Colorado law.
(7) To impose such other necessary general regulations for the safety,
welfare and accommodation of the public as required by Section 16 -7 of the Pueblo City
Charter.
C. This Franchise does not confer rights upon Franchisee other than as
expressly provided herein. No privilege or power of eminent domain is bestowed by this grant.
Nothing passes by implication under this Franchise Agreement.
d. The grant of the Franchise is not a warranty of title or interest in any street,
public easement or other public place.
C. The grant of the Franchise shall not become effective unless and until
Franchisee has (a) filed an unconditional acceptance of the franchise grant; and (b) made all
payments, posted all securities and guarantees, and supplied all information that it is required to
supply prior to or upon the effective date of the Franchise. If Franchisee fails to satisfy these
obligations within sixty (60) days of the ordinance authorizing City to enter into the Franchise
Agreement, the Franchise grant shall be deemed rescinded five days after the City notifies
Franchisee in writing that the obligations have not been satisfied, unless the obligations have been
satisfied before the five -day period has expired.
£ Both parties waive, as of the effective date of this Franchise Agreement, any
claim or defense that any provision of this Franchise Agreement, as it exists on the effective date of
this Franchise Agreement, is unenforceable or otherwise invalid or void. Neither party waives the
right to challenge the validity of any applicable law.
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ARTICLE IV
SCOPE OF FRANCHISE: NO WAIVER
This Franchise Agreement confers only the right to provide Cable Television
Services as defined in Article lI of this franchise. Nothing contained in this Franchise Agreement
shall be deemed to authorize the Franchisee to provide any service, or to engage in any business,
other than the provision of Cable Television Service.
2. a. The failure of the City or Franchisee on one or more occasions to exercise a
right or to require compliance or performance under this Franchise Agreement, any City 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.
b. Waiver of a breach of this Franchise Agreement is not a waiver of any other
breach whether similar or different from that waived. Neither the granting of the franchise 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.
ARTICLE V
RIGHT OF CITY TO REGULATE
Nothing contained herein shall be construed to limit the power of the City to regulate the
service, rates and charges of the Franchisee to the full extent allowed by law.
ARTICLE VI
FRANCHISE FEES
1. Purpose and Amount of Fee As compensation for the use of the streets and for the
purposes of providing revenue with which to defray the costs of regulation arising out of issuance of
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the Franchise and for promoting, assisting and financing public, educational, and governmental
access programming, Franchisee shall pay franchise fees in the amount prescribed hereinafter.
During the term of Franchise, Franchisee shall pay to the City an amount equal to five
percent (5 %) per year of the Franchisee's annual Gross Revenue. Said fees shall be paid quarterly,
without deduction or offset, no later than thirty (30) days after the closing of each quarter. Not later
than the date of each payment, Franchisee shall file with the Director of Finance and with the City
Clerk, a written statement by an authorized representative of Franchisee which certifies in
reasonable detail the sources and amount of Gross Revenues received by Franchisee during the
quarter for which payment is made. The payment herein specified shall not exempt the Franchisee
from any lawful taxation upon its property including but not limited to, ad valorem taxes and sales
and use taxes.
No acceptance of any payment shall be construed as an accord that the amount paid is, in
fact, the correct amount, nor shall such acceptance of payment be construed as a release of any
claim which the City may have for further or additional sums payable under the provisions of this
Franchise or any ordinance of the City.
2. Period of Limitation The period of limitation for recovery of any franchise fee
payable to City under this Franchise shall be three years from the date on which payment by
Franchisee is due.
3. Contract Obligation This Franchise constitutes a valid and binding contract
between Franchisee and the City. In the event that the franchise fee, or any financial obligation of
Franchisee to the City specified in this Franchise is declared illegal, unconstitutional or void for any
reason by decision of any court or other proper authority, fees previously paid under the terms of
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this Franchise shall be deemed paid pursuant to contract between the City and Franchisee and
Franchisee shall not attempt to recoup any franchise fee previously paid pursuant to the terms of this
Franchise. To the extent permitted by law, City will hold Franchisee harmless from claims of
subscribers based upon franchise obligation being declared void or unlawful.
4. Refund for OveMaayment The period of limitation for recovery of any overpayment
made by the Franchisee to the City shall be two years from the date on which the overpayment was
made. The City may make reasonable installment payments for refunding any such said
overpayment.
5. Interest on Delinquent Payment Any franchise fees which remain unpaid after the
dates specified in this Article shall be delinquent and shall thereafter accrue interest at the rate of
one and one -half percent (1 -1/2 %) per month until paid.
6. Other Commitments Not Franchise Fees No term or condition of this Agreement
shall in any way modify, affect or reduce the Franchisee's obligation to pay franchise fees.
Although the total sum of franchise fee payments and additional commitments set forth elsewhere in
this Agreement may total more than five percent of Franchisee's gross revenues in any calendar
year or 12 -month period, Franchisee agrees that the additional commitments are not franchise fees
as defined under any federal taw or regulation, nor are they intended to be offset or credited against
any franchise fee payments due to the City, nor do they represent an increase in franchise fees to be
passed through to subscribers pursuant to any federal law.
ARTICLE VII
[Reserved]
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ARTICLE VIII
CERTIFICATION OF FRANCHISE FEE PAYMENTS
Not less than annually, Franchisee shall provide the City Council with a statement by an
authorized representative of the Franchisee certifying the accuracy of the franchise fee payments
paid within the preceding twelve (12) months pursuant to Article VI above. Said certification shall
be consistent with the definition of "Gross Revenues" set forth in this Franchise, and shall be
prepared in accordance with GAAP.
ARTICLE IX
AUDITING AND FINANCIAL RECORDS
During the terms of Franchise, the City may, not more frequently than once every two
years, conduct an audit of the books, records and accounts of the Franchisee for the purpose of
determining whether the Franchisee has paid franchise fees in the amounts prescribed by this
Franchise. The audit may be conducted by the City or by an independent certified public
accounting firm retained by the City. If a discrepancy exceeding five percent (S %) or $30,000,
whichever is greater, in payment of the franchise fee is discovered by the audit, the reasonable cost
of the audit shall be paid by the Franchisee. The party conducting the audit shall prepare a written
report containing its findings. The report shall be filed with the City Director of Finance and mailed
to Franchisee. Franchisee shall make available for inspection by authorized representatives of the
City in Pueblo, Colorado at reasonable times and upon reasonable advance notice, its books,
accounts, and all other financial records necessary for an audit or to enforce the provisions of the
Franchise.
ARTICLE X
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USE OF STREETS LIMITED
Streets within the City shall not be occupied by or used by Franchisee except under
provisions of this Franchise and as otherwise available for use by the general public. Franchisee
shall not use City streets to store or park company vehicles when such vehicles are not in active use,
but shall store same on off- street parking areas provided or leased by Franchisee for such purpose.
ARTICLE XI
USE OF UTILITY POLES
This Franchise shall not be deemed to expressly or impliedly to authorize the Franchise to
utilize poles or conduits owned by any public or private utility which are located within the streets,
without the express consent of the utility, including the City.
ARTICLE XII
NOTICES
All notices and other writings authorized or required by the provisions of this Franchise to
be mailed shall be deemed to have been given and served when in the United States Mail, postage
prepaid, and addressed as follows:
City: Director of Public Works
City of Pueblo
211 East "D" Street
Pueblo, Colorado 81003
with a copy to: City Manager
City of Pueblo
15
I City Hall Place
Pueblo, Colorado 81003
Franchisee: Comcast of Colorado IV, LLC
807 North Greenwood Street
Pueblo, Colorado 81003
with a copy to: Comcast Cable Communications, Inc.
Attn: Government Affairs Dept.
8000 E. Iliff Avenue
Denver, CO 80231
Any notice or other writing authorized or required by the provisions of this Agreement to be
"filed" shall be deemed "filed" when received in the business office of the party with whom such
notice or writing is authorized or required to be "filed."
ARTICLE XHI
AUTHORITY
It is declared that the provisions of this Franchise are enacted pursuant to the authority
conferred by the Pueblo City Charter, Article XX of the Colorado Constitution, Federal law,
including the Cable Act and pursuant to the police powers conferred by Article XX, Section 6 of the
Colorado Constitution and C.R.S. Section 31 -15 -401 for the promotion and protection of the peace,
health, safety, and general welfare of the citizens of the City.
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ARTICLE XIV
POLICE POWERS NOT LIMITED
All ordinances of general application, including zoning and other land used ordinances,
building, electrical, plumbing and mechanical codes, now in existence or hereafter enacted by the
City shall be fully applicable to the exercise of this Franchise, and Franchisee shall comply
therewith. Nothing herein shall be construed as a waiver of any rights, substantive or procedural,
Franchisee may have under federal or state law to challenge any ordinance in a court of
competent jurisdiction. In the event of a conflict between the provisions of this Franchise and the
provisions of such an Ordinance, the provisions of the Franchise shall prevail except in those cases
where the Ordinance is expressly adopted pursuant to the City's police powers, and is of general
applicability.
ARTICLE XV
COMMUNICATIONS WITH REGULATORY AGENCIES
A copy of all non - proprietary petitions, applications, communications, filings and reports
submitted by Franchisee to the FCC or any other Federal or State regulatory commission or agency
having jurisdiction in respect to any matters which may specifically impact the City's rights or
obligations with regard to this franchise, shall be served upon the City as required by law or
applicable rule. Copies of all other petitions, applications, communications, filings and reports
submitted by Franchisee to the FCC or other regulatory body which are not required by law or rule
to be served upon City shall be provided to City within 10 days of written request therefor.
ARTICLE XVI
TERM OF FRANCHISE
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The term of this Franchise shall be five (5) years commencing 30 days after the approval of
the franchise by City ordinance.
ARTICLE XVII
CUSTOMER SERVICE STANDARDS SUBSCRIBER CONTRACTS,
1. Customer Service Standards The Franchising Authority hereby adopts the
customer service standards set forth in Part 76, §76.309 of the FCC's rules and regulations, as
amended. The Grantee shall comply in all respects with the customer service requirements
established by the FCC.
2. Customer Bills Customer bills shall be designed in such a way as to present the
information contained therein clearly and comprehensibly to Customers, and in a way that (A) is
not misleading and (B) does not omit material information. Notwithstanding anything to the
contrary in Section 1 above, the Grantee may, in its sole discretion, consolidate costs on
Customer bills as may otherwise be permitted by Section 622(c) of the Cable Act (47 U.S.C.
§542(c)).
3. In providing cable service under this Agreement, Franchisee shall comply with the
following:
a. Franchisee shall maintain a single local office/ customer service center
within the Franchise Area.
b. Franchisee's local office and customer service center shall provide facilities,
during normal business hours Monday through Friday, holidays excepted, for customers to: pay
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subscriber bills; request to begin or cancel cable services or make changes therein; obtain, return or
exchange set -top boxes, cable boxes and cable cards; express concerns or complaints with service;
and otherwise transact business with Franchisee.
C. If, at any time during the term of this Franchise, changes in federal law or
FCC regulations authorize franchising authorities to require in franchises that the franchisee offer
channels with ala carte pricing, and it is necessary or desirable for the Franchise to be reopened to
accommodate this change, the City or Franchisee may elect to reopen this Franchise for negotiations
solely with respect to ala carte pricing in order that such pricing be offered to subscribers as
expeditiously as possible. If the parties should fail to agree on modifications to this Agreement to
effectuate ala carte pricing within thirty days of notice by either party to the other to so reopen
negotiations, the matter will be submitted to an arbitrator mutually selected by the parties for
resolution.
ARTICLE XVIII
AVAILABILITY OF SERVICE
1. Franchisee shall make available nondiscriminatory cable television service, subject
only to a reasonable construction schedule established by Franchisee with consent of the City, to all
dwelling units within the service area established by this Franchise including all annexations. As
annexations occur, Franchisee will file a construction plan which details the plans for provisions of
service to the annexed area, if the area is unserved by Franchisee. Such plans must be filed within
thirty (30) days of annexation, or subdivision approval, whichever is later, and are subject to City
approval. Notwithstanding the provision of this Article, Franchisee shall be under no obligation to
provide cable service to the inhabitants of apartments, condominiums or other multiple - family
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residential units to which Franchisee is denied access by the owner or manager thereof.
2. Franchisee shall continue to make Cable Service available, under its regular and
nondiscriminatory terms and conditions, to those residential Subscribers presently receiving Cable
Service within the Service Area. Franchisee shall be excused from making cable television services
available to a particular dwelling unit within areas annexed to the Service Area after the Effective
Date of this Franchise, if that dwelling unit is situated more than one hundred fifty (150) feet from
Franchisee's cable plant, except in those cases where the prospective customer pays Franchisee's
actual costs for that construction beyond one hundred fifty (150) feet; provided, however, that if
Franchisee is afforded the opportunity by a subdivision developer to install its Facilities in
dedicated rights of way within any subdivision approved or constructed after the Effective Date of
this Franchise and fails to timely do so, then it must bear the direct cost of installing its facilities
within the subdivision.
The sole purpose of this exception is to relieve Franchisee from providing service to a
dwelling unit under circumstances wherein extension of the Cable Television System would
constitute an excessive burden for Franchisee.
ARTICLE XIX
SERVICE OFFERINGS
1. a. Subject to the requirements of Article XVI, Franchisee shall, at a minimum,
initially offer the following broad categories of programming to the extent such categories are
reasonably available: Educational programming; Colorado news, weather and information;
Sports; General entertainment (including movies); Children/family - oriented; Arts, culture and
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performing arts; Spanish language programming; Science /documentary; and National news,
weather and information.
b. Franchisee shall not delete or so limit as to effectively delete any broad
category of programming within its control without the prior written consent of the City.
C. In the event of a modification proceeding under federal law, the mix and
quality of Cable Services required by the Franchise on the Effective Date of this Franchise shall
be deemed the mix and quality of Cable Services required after such modification.
d. Subject to applicable law, the Basic Cable Service tier shall include broadcast
channels, in the standard definition or high definition format in which broadcast in a manner
consistent with and as required by federal retransmission consent and must carry rules, as well as
all PEG access channels in accordance with Article XXII and applicable law. This section shall
not require Comcast to supply any additional equipment as part of the Basic Cable Service Tier.
C. If nonduplication restrictions on rebroadcast channels are enforced to such
extent that Franchisee in its reasonable business judgment determines that a particular rebroadcast
channel has insufficient value to justify offering said channel, it may replace said channel with
reasonable programming as it determines.
2. The Franchisee shall not charge a subscriber for any service or equipment that the
subscriber has not affirmatively requested by name or description. This provision, however, shall
not preclude the addition or deletion of a specific program from a service offering, the addition or
deletion of specific channels from an existing tier of service, or the restructuring or division or
existing tiers of service that do not result in a fundamental change in the nature of an existing
service or tier of service provided that such change is otherwise consistent with applicable
21
regulations. A subscribers failure to refuse the Franchisee's proposal to provide such service or
equipment is not an affirmative request for service or equipment. A subscribers affirmative request
for service or equipment may be made orally or in writing.
3. At such time as Franchisee converts the Cable System to digital transmission only to
Subscribers, Franchisee shall make available to Subscribers who request same, necessary
equipment in compliance with applicable law. Additionally, Franchisee shall not prohibit lawful
use of compatible third party devices by Subscribers used to receive Basic Cable Service tier
channels.
ARTICLE XX
OBSCENE AND UNPROTECTED BROADCASTS
Franchisee shall not broadcast material which is obscene or otherwise unprotected by the
Constitution of the United States. Upon the request of a subscriber, the Franchisee shall provide (by
sale or lease) a device by which the subscriber can prohibit viewing of a particular cable service
during periods selected by that subscriber.
ARTICLE XXI
SYSTEM CAPABILITY AND STANDARDS
1. General Capability Subject to the requirements of Article XVI, the Cable
Television System shall, at minimum:
a. Relay to subscriber terminals those broadcast signals required by the FCC;
b. Distribute in color all television signals which it receives in color;
C. Make available at reasonable charge upon request by any subscribers who
receive channels showing premium services and pay per view events, a lockout device which
22
prevents the unauthorized viewing of such channels.
d. Make available to subscribers at reasonable charge, upon request, an RF
switch (an A -B switch) permitting conversion from cable to antenna reception; and
e. Maintain an activated two -way capable system so that all components on the
subscriber network have a rating of not less than seven hundred fifty (750) megahertz throughout
the backbone of the system, and not less than seven hundred fifty (750) megahertz, in any location
within the Franchise Area. The system shall be capable of accommodating not less than 75 video
channels expandable to 150 channels using digital compression.
f. The entire cable system must be two -way capable and must include the
facilities and equipment (except customer premises equipment) capable of providing broadband
interactive cable services. Modifications to the Cable System after the effective date of this Franchise
shall be consistent with contemporary Colorado cable industry standards.
g. There must be reliable, continuous, auto -start back -up power at the headend.
Back -up power shall also be provided at each node as activated through the use of backup power
supplies that are suitably sized and located so as to carry their individual loads for a minimum of
three hours.
h. The cable system must include the facilities and equipment required to
provide full system status monitoring of power supplies at the nodes as activated. The status
monitoring equipment must, at a minimum, permit Franchisee to identify where and when power
outages affecting the node have occurred, and when and where the cable system has switched to
battery back -up power supplies.
Franchisee must install and maintain facilities and equipment (including
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without limitation modulators, antennae, amplifiers and other electronics) that pemtit and are
capable of passing through the signals received at the headend without substantial alteration or
deterioration (thus, for example, the system shall include components such that a signal received at
the headend in color may be received by a subscriber in color, and a stereo signal in stereo).
Facilities and equipment shall be installed and operated so that subscribers can receive closed -
captioning and secondary audio. Any program- related data encoded in vertical or horizontal
blanking intervals, secondary audio signals, and closed- captioned signals must be available to all
customers who subscribe to the services associated with such signals.
j. Franchisee shall comply with all applicable laws concerning system
compatibility with subscribers' consumer electronics equipment. Franchisee shall provide the
facilities and equipment necessary to make its services (including its customer services) reasonably
accessible to persons with disabilities. For example, where available, Franchisee may employ TTY
or similar technologies to permit communication between members of the hearing- impaired
community and cable system representatives. Franchisee is also encouraged to make available at
reasonable charge UP Videophone service for hearing impaired subscribers.
k. Subject to the force majeure conditions set forth in Article XXVUL the
system facilities and equipment must be capable of continuous twenty -four hour daily operation,
without severe material degradation of signal, except during extremely inclement weather, or
immediately following extraordinary storms which adversely affect utility services or which
damage major cable system components.
The cable system must utilize facilities and equipment generally used in
high - quality, reliable, systems of similar design (except where inconsistent with the specific
I�Ll�
requirements of this Franchise Agreement).
M. Franchisee shall provide strand maps of the cable system, without notation of
electronic components, in an electronic format viewable with readily available software programs
(such as, by way of example, ArcView, Acrobat, or AutoCad). At the time such maps are provided,
Franchisee may request in writing that any associated proprietary information, other than the
locations of its cables and Facilities, be held confidential, and in such event, the City shall assert
protection of the confidential commercial data from disclosure under the Colorado Public Records
Act, Section 24 -72 -204, C.R.S. Franchisee shall comply with its obligations under Article 1.5 of
Title 9, Colorado Revised Statutes (2008) and nothing in this Section is intended to relieve any party
from its obligations under such statutory requirements to obtain a locate before undertaking
excavation activities. The strand maps provided under this Section shall constitute public records.
2. Transmission Technologies Franchisee may use any transmission technology (as
that term is defined in federal law), provided that the cable system is constructed and maintained so
that it will have characteristics that in all relevant respects meet or exceed the characteristics of the
cable system described in Section I of this Article XXI. Franchisee affirms that it has constructed a
cable system that meets or exceeds all the requirements of said Section 1. If City determines that
Franchisee has not constructed the Cable System as required by Section 1 or has failed to maintain
the Cable System as required by Section 1, and the City determines that the Cable System does not
or is not likely to satisfy Section 1, the City may declare a breach of the Franchise, and, in addition
to exercising any other remedy available to it, order Franchisee to upgrade the Cable System by a
time specified by the City, and require such securities as are necessary to ensure the work is timely
performed.
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3. Emergency Alert S sy tem Franchisee shall Provide the City with an operating
Emergency Alert System ( "EAS ") in accordance with the Franchisee's federal EAS requirements as found in
47 C.F.R. § 11. The City agrees that it shall coordinate with Pueblo County ( "County ") for operation of the
EAS within the Franchise Area and, to the extent provided by law, shall be responsible for all liability arising
out of operating the City - specific EAS components. The City will operate the City- specific EAS components
in accordance with all applicable state and federal law. The City, County and Franchisee shall meet
periodically to discuss operational procedures for use of the emergency alert system. As part of those
discussions, the parties may agree on alternative capabilities and activation procedures for the emergency
alert system, provided that any changes are in accordance with the County's EAS Plans and Procedures. In
addition, Franchisee shall provide emergency capabilities required under other applicable laws. Franchisee
shall test the EAS system as required by federal law and, upon request, the City shall be permitted to be
present during the EAS testing.
4. Parental Controls In addition to satisfying any obligations that it has under
applicable law to provide parental control devices, or otherwise block programming on the cable
system, Franchisee shall ensure that any system for ordering movies or other pay - per -view
programming is designed, through use of systems such as PIN number systems, to prevent children
from ordering programming without parental consent.
5. Support Equipment and Facilities
a. Franchisee must have sufficient trucks, tools, testing equipment, monitoring
devices and other equipment and facilities and the trained and skilled personnel required so that
Franchisee complies with each and every requirement of applicable law, including applicable
customer service requirements, technical standards, maintenance standards and requirements for
26
responding to system outages. This includes the facilities, equipment and staff required to: (a)
properly test the system and conduct an ongoing and active program of preventive maintenance and
quality control; and (b) be able to quickly respond to customer complaints and resolve system
problems.
b. Franchisee must monitor for and report to City annually its performance
measured against applicable customer service standards, based on records kept and maintained in
the ordinary course of business.
C. Franchisee must ensure that its headend has adequate space, and is otherwise
properly designed in order to accommodate the equipment and facilities necessary to meet its
obligations under this Franchise Agreement.
6. Technical Standards The cable system must meet or exceed the technical standards
set forth in 47 C.F.R. §76.601 and any other applicable standards, as amended from time to time,
provided that nothing in this provision is intended to permit the City to exercise any authority that it
is prohibited from exercising under applicable federal law.
Future Upgrades It is Franchisee's responsibility to make such improvements to its
cable system as are necessary so that the cable system performs as the Franchise Area expands or
subscribers to services are added as required by this Franchise.
8. Testing Requirements Franchisee shall perform acceptance tests on each upgraded
and newly constructed area prior to subscriber connection. The tests must demonstrate that the
system components are operating as expected and that signal quality is maintained 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.
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9. Miscellaneous Requirements
a. Franchisee shall at all times comply with the National Electrical Safety Code
(National Bureau of Standards); National Electrical Code (National Bureau of Fire Underwriters);
Applicable FCC and other Federal, State and local regulations; and lawful codes and ordinances of
the City.
b. The Cable Television System shall not endanger or interfere with the health
or safety of persons or property within the City where Franchisee may have equipment located.
C. All working facilities, conditions, and procedures used or occurring during
construction of the Cable Television System shall comply with the standards of the Occupational
Safety and Health Administration.
d. Construction, installation, repair and maintenance of the Cable Television
System shall be performed in an orderly and workmanlike manner and in close coordination with
public and private utilities serving the City. All construction, installation, repair and maintenance
shall follow accepted construction procedures and practices.
e. The official public policy of the City is that all new and relocated utility lines
be placed underground consistent with generally applicable city ordinances. (See § 174- 30(a)(I)a.,
Pueblo Municipal Code) Except where specifically authorized by the Director of Public Works
of City, all of Franchisee's Facilities first placed within Public Places after the effective date of
this ordinance, or relocated within a Public Place after the effective date, shall be located
underground wherever required. In locations where wires or cables of Franchisee or other
franchisees of City or of any authorized local exchange carriers are presently located above-
ground, the Director of Public Works will allow Franchisee's Facilities to also be located above-
1E
ground, unless he has specific reasons for not allowing further above ground installation at such
location which are not arbitrary and capricious and which apply, or will apply within thirty six
months, to all franchisees and authorized exchange carriers or other utilities with above - ground
wires or cables at such location. Thereafter, and notwithstanding that any such authorization had
been given, should the City subsequently determine for any area of the City that telephone or
telecommunications wires or electric utility wires located above ground shall be relocated
underground, Franchisee shall, upon reasonable notice, at its sole cost and expense, relocate its
Facilities below ground in cooperation with other affected interests. In the event Franchisee fails
to act within a reasonable allocated time the City may cause Franchisee's Facilities to be
relocated, and Franchisee shall be liable to City for the costs thereof.
Any antenna structure used in the Cable Television System shall comply
with construction, marking and lighting of antennae structures required by the United States
Department of Transportation and any requirements promulgated by the State of Colorado. New
antennas, antenna towers and structures placed after September 22, 1999 shall also comply with
City's Ordinances relating to such antennas, antenna towers and structures, including but not limited
to Article VI of Chapter 4 of Title 17, Pueblo Municipal Code.
g. RF leakage shall be measured adjacent to any proposed or existing
aeronautical navigation or communication radio sites to prove no interference to air navigational
reception.
10. Service to the Hearing_ Impaired In addition to the requirements of paragraph k. of
section 1 of this Article, the Franchisee shall offer service suitable to meet the needs of the hearing
impaired. In meeting this obligation, Franchisee shall provide information to subscribers regarding
29
availability and installation of equipment which facilitates reception of Basic Cable Services and
expanded basic service by hearing impaired individuals. If after receiving information from
Franchisee regarding availability and installation of equipment, a Subscriber desires that Franchisee
provide and/or install same, Franchisee shall do so for a reasonable charge.
ARTICLE XXII
PUBLIC EDUCATIONAL AND GOVERNMENTAL ACCESS; I -NET
1. PEG Use
a. Franchisee shall activate and make available public, educational and
governmental ( "PEG ") channels to each Subscriber on the subscriber network as specified in this
Article XXH. The additional channels provided under this Article beyond the initial three (3) PEG
channels are subject to Franchisee's rights to use the additional channels for the provision of
services when they are not being used for their intended purposes.
b. The management of the PEG channels is the responsibility of the City. The
City may designate an entity or entities to manage all or any part of the PEG channels. (The entity
or entities so designated are referred to as "designated access providers "). The City may designate
designated access providers; it may designate channels provided under this Franchise Agreement for
public, educational, government or combined PEG use. Nothing herein shall prevent a designated
access provider from allowing PEG capacity designated for a particular PEG use to be used for
other PEG uses.
C. PEG channels shall be provided on the basic service tier in a manner
consistent with applicable law (except as the City and Franchisee may otherwise agree), or if there
is no basic service tier, as part of the service provided to any Subscriber. It is the responsibility of
30
the City or designated access providers to provide the necessary channel information to Franchisee
or Franchisee's designated menu programmer in a timely manner in order to enable the information
to appear in the menu. Franchisee will provide notice to City of its menu provider and notify City
of any changes in the menu provider in order to facilitate continuous provision of channel
information.
d. It is the responsibility of Franchisee to transmit PEG signals from points
designated by the City in Article XXH, Section 3 of this Franchise , and to deliver them without
alteration in content or material degradation in quality to each subscriber, in a form and manner so
that the subscriber may receive the signals without additional equipment or cost beyond that
required to receive the level of cable services to which the subscriber has subscribed.
e. Except as expressly permitted by applicable law, Franchisee shall not
exercise any editorial control over the content of communications on the designated PEG channels
(except for such communications as Franchisee may produce and cablecast on such channels).
Subject to all other limitations of this Franchise Agreement, the full signal provided must be
carried.
f. PEG channels may not be used to cablecast anything prohibited by federal
law. PEG channels may not be used to cablecast commercial matter. "Commercial matter" means
time sold or used to propose a commercial transaction or for the express purpose of selling a
commercial product or service. Nothing in this Section prevents the levy of a fee to defray costs of
the City or a designated access entity associated with the operation, activation or maintenance of
PEG channels, facilities and equipment. By way of example and not limitation, the parties do not
intend to limit sponsorship announcements comparable to those that might be carried on a non-
31
commercial broadcast station; or to prevent schools from charging course fees, and then delivering
the course via the PEG channels; or to solicit financial support for the provision of PEG access by
designated access providers and for charitable, educational or governmental purposes. The City
agrees that it will not use or authorize use of its designated educational and governmental access
channels for any for - profit, commercial purposes by the City or third parties. Franchisee shall have
the right to audit the use of such facilities to ensure compliance with this paragraph, which shall be
reasonably construed in accordance with Franchisee's practices in other Colorado -area jurisdictions.
Use by City enterprise funds and boards, commissions and agencies is not "for profit" or
"commercial" solely because the enterprise or agency has more revenues than expenses. Nothing in
this section is intended to prevent the City from authorizing charges to users or viewers to pay for
such non - commercial services, such as fees for instructional programming or charges to recover the
cost of special use equipment, or as the City may be required to charge under applicable law.
2. Access Channels
a. On and after the effective date of this Franchise Agreement, Franchisee shall
continue to make available three downstream PEG channels capable of transmitting video and audio
in substantially the same quality as other channels, to be used at the City's sole discretion for public,
educational and/or government access purposes. The City may require Franchisee to activate up to
one additional channel for PEG use, up to a total maximum of four channels under the procedures
specified below.
If a designated access provider believes that an additional PEG channel is
needed, the designated access provider may file a request with the City Manager. The City
Manager will determine whether an additional PEG channel should be activated, considering,
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among other factors, the following: the community's needs and interests, the utilization of the
existing channels, the plans of designated access providers for utilizing the additional channel, the
interest of the community in additional PEG use of the cable system, whether it is feasible for
designated access providers to achieve their goals by clustering PEG programming into blocks of
time so that the channel space can be compatibly shared between multiple designated access
providers, whether several designated access providers should combine their programming onto a
single access channel, and the impact of the activation of the additional channels on existing
programming.
C. Should the City Manager in his or her sole discretion find that activation of
an additional channel is justified, then the City Manager shall provide his/her decision in writing,
and Franchisee shall activate the additional PEG channel within ninety days of receiving the
decision. Franchisee may appeal the decision of the City Manager to the City Council within thirty
days of the date of the City Manager's decision, and if it does so, may delay activation of the
channel. The City Council, after reviewing the decision of the City Manager, and after a public
hearing, may in its discretion approve, modify or reject the decision of the City Manager in its sole
discretion. If the City Council orders Franchisee to activate an additional channel, the channel shall
be activated within sixty days of the date the City Council makes its decision. The decision shall be
final and unappealable.
d. Franchisee and the City agree that it is their mutual goal to effectively and
efficiently use PEG channels. Franchisee shall be permitted to use underutilized time on PEG
channels, as provided below.
e. If Franchisee believes that any additional PEG channel (in excess of the
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initial three channels) has underutilized time, it may file a request with the City Manager to use that
time. Under no circumstances shall this section be construed to apply to the initial 3 PEG channels.
In response to the request, the City Manager will consider a combination of factors, including
without limitation the community's needs and interests, the utilization of the existing channels, the
plans of the designated access provider for utilizing the channels (including whether the
underutilized capacity is being used for intermittent programming that could otherwise not be easily
provided on the same basis), if the channels are being underutilized, the reasons for underutilization,
whether it is feasible for the designated access providers to achieve their goals by clustering PEG
programming into blocks of time so that the channel space can be compatibly shared between
multiple designated access providers, whether several designated access providers should combine
their programming onto a single access channel, and whether Franchisee is in full compliance with
its PEG obligations.
The City Manager shall render a decision regarding the request for utilization
within sixty days of receiving the request. Should the City Manager find, in his or her sole
discretion, that a PEG channel or a portion of a PEG channel may be used by Franchisee, then
Franchisee may begin using such time ninety days after receipt of the decision. Franchisee's
request shall not be unreasonably denied. Any permission granted pursuant to this subsection for
use of a PEG channel or a portion thereof shall be considered temporary.
g. At such time as a designated access provider believes that it wishes to utilize
the PEG channel time currently used by Franchisee pursuant to this subsection, a designated access
provider may request that the City Manager return such channel or portion of the channel for PEG
use. In response to the request, the City Manager will consider a combination of factors, including
34
without limitation the community's needs and interests, the utilization of the existing channels, the
plans of the designated access provider for utilizing the channels, the impact of Franchisee use on
PEG use of the cable system, whether it is feasible for the designated access providers to achieve
their goals by clustering PEG programming into blocks of time so that the channel space can be
compatibly shared between multiple designated access providers, and whether several designated
access providers should combine their programming onto a single access channel.
h. The City Manager shall render his/her decision regarding the matter within
sixty days of receiving the request. Should the City Manager find in his or her sole discretion that
the PEG channel or portion of the PEG channel should be returned for PEG use, then Franchisee
shall surrender the channel or portion of the channel, as directed, within ninety days of receiving the
decision. The designated access provider's request shall not be unreasonably denied.
The decision of the City Manager shall be final and unappealable as to both
Franchisee and designated access providers. Franchisee may not request a return of an additional
PEG channel, or any portion of an additional PEG channel within two years of the activation of the
additional PEG channels required by this Article. The City Manager may deny Franchisee the right
to utilize all or a portion of a PEG channel, or revoke on thirty days notice an authorization to utilize
all or a portion of a PEG channel if Franchisee is not in full compliance with its PEG obligations.
j. Franchisee and the City will cooperate to help promote the use and
viewership of the PEG channels. Consistent with this cooperative approach, except where required
by federal law, Franchisee shall not change PEG channel locations without advance notice to the
City. Franchisee recognizes the City's interest in having uniform channel locations for PEG
channels across all cable systems and open video systems serving the City. If Franchisee
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determines that a change to a PEG channel assignment is necessary, it shall provide the City with a
minimum of thirty days notice, and use its best efforts to provide 90 days notice, prior to the time
that public, educational, and governmental access channel designations are changed, except as may
be otherwise required by federal law. Franchisee shall pay all costs associated with replacing or
adjusting equipment, as necessary for the channel redesignation. Franchisee, at Franchisee's
expense, shall include notice of the channel change on its regular monthly billings, upon the City's
request.
3. Return Lines for PEG Use
a. Franchisee shall maintain the activated upstream links from City Hall, 1
City Hall Place, Pueblo, Colorado, 81003, and from Pueblo Community College ( "PCC "), 900
West Orman Avenue, Pueblo, Colorado, 81004. Franchisee agrees that it will provide and maintain
activated capacity to enable transmission of a second PEG channel from each of the PEG facilities
located at 900 West Orman Avenue, Pueblo, Colorado, 81004.
b. The City or any designated access provider may upgrade the connections at
its cost. The City shall provide Franchisee with notice of its intent to upgrade its connections in
writing. Franchisee shall provide reasonable access to and space at its facilities, where available, to
accommodate the PEG return line upgrade. The City may use the PEG capital funds provided in
this Franchise Agreement for any such upgrade costs. Franchisee shall upgrade such requested
connections in a timely manner.
C. If the headend is moved or replaced, Franchisee shalt transfer the link(s) to
the new location (including, without limitation, moving terminal equipment and splicing fiber, as
necessary).
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d. The City may request that Franchisee construct new return lines for PEG
use. Such return lines shall be constructed at the City's cost, however, the City may use the PEG
capital funds provided in this Franchise Agreement for any such costs. Franchisee shall construct
such requested return lines in a manner and on a schedule to be agreed upon with the City.
4. Support for PEG Access
a. Commencing ninety (90) days after the effective date of this Agreement, a
PEG access support fee is imposed on each subscriber account, in an amount not to exceed $0.50
per month per subscriber. Franchisee shall collect and remit to City the fee commencing ninety (90)
days after the effective date of this Agreement. The remitted fees shall be used solely for PEG
capital facilities and equipment (which may be referenced to herein as "PEG capital funds "). No
fees shall be charged on gratis accounts. The City shall be solely responsible for all liability to any
third party arising out of the City's use of PEG capital funds that will be collected and paid to the
City in accordance with this Section. Any payment under this Section shall be due on a quarterly
basis, payable concurrently with franchise fees for such quarter, and may be separately itemized by
the Franchisee on subscriber bills.
5. Miscellaneous PEG Requirements
a. Upon reasonable advance notice, but no more often than once per calendar
year, Franchisee will provide the City with an insert space in subscribers' cable bills to promote
PEG programming. Franchisee shall provide the City with the printing specifications for the inserts.
The City shall be responsible for the content and printing costs of the insert, and for the cost of
shipping the printed inserts to Franchisee's billing agent. The City shall only pay incremental
mailing costs if the City's insert results in an increase to the standard mailing costs normally
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incurred by Franchisee in sending its subscriber billing statements.
If Franchisee makes changes to its Cable System that necessitate
modifications to PEG facilities and equipment (including without limitation the upstream paths),
Franchisee shall, at Franchisee's expense, provide any additional facilities or equipment necessary
to implement such modifications within thirty days of the date that the system changes are made, so
that PEG facilities and equipment may be used and operated as intended, including, among other
things, so that live and taped communications can be produced and cablecast efficiently to
subscribers. By way of example, and not limitation, should Franchisee cease delivery of all signals
in an analog format to subscribers, it will provide the facilities and equipment necessary so that PEG
signals can be delivered in a digital format.
C. The PEG channels made available pursuant to this Section shall be capable
of fully transmitting to Subscribers the entire channel content provided by the designated access
provider as received from the designated access provider without degradation.
d. The channels provided for PEG use (except as expressly provided with
respect to the I -net) shall be at Franchisee's cost.
6. Costs Not Franchise Fees: Pass - Through
a. The parties agree that any cost to Franchisee associated with providing any
capital support for PEG use required under this Franchise Agreement (including the provision of the
I -Net) and payments made outside this Franchise Agreement for PEG and I -Net support, if any, are
not a franchise fee within the meaning of 47 U.S.C. §542 and fall within one or more of the
exceptions listed in 47 U.S.C. § 542(g)(2).
b. Franchisor acknowledges that under FCC rules, certain external costs for
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PEG support are eligible for "pass through" to subscribers as basic service rate increases and
separate itemization on Subscriber bills; accordingly, Franchisor will not contest Franchisee's right
to pass through and itemize applicable PEG support provided herein to the extent consistent with
applicable law.
7. Institutional Network
Franchisee agrees that, upon six month's written request of the City Manager, it will
construct an institutional network ( "I- net ") or similar managed services network in accordance with
the Cable Act in accordance with an installation agreement to be mutually agreed upon the parties
meeting the design requirements requested by the City at its actual incremental construction costs.
Additionally, the parties may reach an agreement as to Franchisee's maintenance of the City's I -net
for an appropriate fee. The parties agree that the City may use PEG capital funds provided pursuant
to this Article to pay Franchisee for I -net capital costs directly related to an I -net built by Franchisee.
PEG capital funds collected and paid to the City pursuant to this Article may be used to construct
the I -net only if Franchisee constructs the I -net or similar managed services network. If constructed,
(a) such network shall be limited to intergovernmental, noncommercial uses that does not compete
with Franchisee's services, (b) Franchisor may not sell or lease any of said facilities for commercial
use, (c) Franchisor fully indemnifies Franchisee from any liability that results from Franchisor's use
of said facilities, and agrees to reimburse Franchisee for the reasonable actual increase, if any,
incurred by Franchisee in the cost of pole attachments or conduit use arising from the construction
and maintenance of the I -net. The parties acknowledge that City may have rights to co- locate its
facilities without charge upon poles and within conduits owned by certain franchisees, including
Franchisee if so provided in this Franchise, and others under existing franchises, other legal
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instruments and law, and Franchisee shall assert such rights with respect to facilities installed for
City hereunder in order to minimize incurring additional costs for such pole attachments and
conduit use.
ARTICLE XXIII
RATE REGULATION
The City may regulate Franchisee's rates and charges as provided by applicable law. All
rates that are subject to regulation by the City must be reasonable and, except as applicable law
otherwise provides, can only be changed with the prior approval of the City.
ARTICLE XXIV
COMPETITIVE EQUITY
1. The City reserves the right to grant additional franchises or other similar lawful
authorization to provide Cable Services or wireline video services within the City. The City will
publish notice of public hearing prior to final hearing and adoption of any ordinance which
would grant such a franchise, or which would refer the question of granting such a franchise to
the electors of the City at any election held for such purpose, in a newspaper of general
circulation published within the city.
2. The Franchisee acknowledges and agrees that the City reserves the right to grant
one (1) or more additional franchises or other similar lawful authorization to provide Cable
Services within the city. In the event an additional franchise is granted and becomes effective,
the City agrees that, not later than ninety (90) days after a written request by the Franchisee, it
will amend this Franchise so as to include the substance of any material terms or conditions that
it makes available to the new entrant, or provide relief from existing material terms or
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conditions, so as to insure that significant regulatory and financial burdens on each entity are
materially equivalent. The parties agree that this provision shall not require a word for word
identical franchise or authorization for a competitive entity so long as the regulatory and
financial burdens on each entity are materially equivalent. This Article is only intended to apply
to video franchises affirmatively granted by the City which allow use of public rights of way for
Cable Services or wireline video services.
ARTICLE XXV
RESERVED
ARTICLE XXVI
COMPLAINT PROCEDURE
The Franchisee shall establish a procedure for the prompt investigation and resolution of all
complaints received from subscribers within the Franchise Area. The Franchisee will inform City
and all subscribers of its complaint procedure, including telephone numbers for registering such
complaints and request that customers make all complaints to the Franchisee before directing such
complaints to the City. The Franchisee shall document the nature and resolution of all complaints
and shall retain such documentation for a period of two (2) years from the date of the complaint. If
and when a customer complaint cannot be resolved, the Franchisee shall respond in writing to the
customer explaining the reasons why a resolution cannot be reached.
ARTICLE XXVII
FREE DISTRIBUTION SERVICES
Franchisee shall install, operate, and maintain free of charges and liens, facilities for
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reception of its cable television distribution services through one basic cable service outlet at each of
the following upon request.
At each public college, university, or community college (excluding dormitories ),
and each public elementary school and secondary school within the City consistent with
Franchisee's tine extension requirements
2. At each City or County owned community center.
3. At the City Hall and each fire station, police station and City owned building used
for municipal purposes located within corporate boundaries of the City.
4. At the public library within the City.
Any of the foregoing may request the installation of one or more additional outlets,
and the same shall be installed by Franchisee at Franchisee's regular rates and charges. In no event,
however, shall Franchisee charge a monthly service fee to said establishments, regardless of the
number of outlets installed.
6. Franchisee shall be responsible for the maintenance or replacement of all
transmission facilities between the head end of Franchisee's system and the demarcation point
associated with each facility described in this Article, except for any damage caused by willful or
grossly negligent actions of the users within the facility.
The outlets required by this Article shall not be used for commercial purposes, or to
distribute or sell Cable Services. Further, the services required under this section are provided by
Franchisee solely AS IS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
)u ' I D
ARTICLE XXV III
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FORCE MAJEURE
Violation by Franchisee of any of the provisions of this Franchise caused primarily by
circumstances beyond the control of the Franchisee shall constitute good and sufficient excuse and
justification of such violations and will preclude the Franchisee from being in breach of the
Franchise. Examples of circumstances beyond the control of Franchisee from a violation and being
in breach of the provisions of this Franchise, violation and caused thereby, include the following:
strikes; acts of public enemies; orders by military authority; insurrections; riots; epidemics;
landslide; lightning; earthquakes; fires; floods; civil disturbances; explosions; and partial or entire
failure of utilities.
Franchisee shall not be excused from any violation of the provisions of this Franchise except
for causes which are beyond the control of the Franchisee and which have not been materially
contributed to or aggravated by acts or omissions by the Franchisee.
ARTICLE XXIX
USE OF STREETS - MINIMUM INTERFERENCE
Cable Television System, including wires and appurtenances, shall be located and installed
and maintained so that none of the facilities endanger the lives of safety of persons, or unreasonably
interfere with any improvements the City or the State of Colorado may deem proper to make, or
unnecessarily hinder or obstruct the free use of the streets or other public property. All transmission
and distribution structures, lines and equipment erected or installed by Franchisee within the City
shall be so located as to cause minimum interference with the rights and reasonable convenience of
property owners who adjoin any of the streets or other public property.
ARTICLE XXX
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PROVISIONS OF SERVICE LOCATION, CONSTRUCTION
AND MAINTENANCE OF FACILITIES
1. City Review of Construction and Design Except in emergency circumstances, prior
to construction of any Facilities or any plant, building, or similar structure within the City,
Franchisee shall fumish to the City the plans for such Facilities. In addition, Franchisee shall assess
and certify to City (1) that all applicable laws including buildings and zoning codes are complied
with, (2) that aesthetic and good planning principals have been incorporated and (3) that adverse
impact on the environment has been minimized.
2. Excavation and Construction All construction, excavation, maintenance and repair
work done by Franchisee shall be done in a timely and expeditious manner which minimizes the
inconvenience to the City, the general public and individuals. Franchisee shall be liable for any
damage to the City caused by Franchisee's failure to act timely. All such construction, excavation,
maintenance, and repair work done by Franchisee shall comply with all applicable codes of the City
and State of Colorado, and the Franchisee shall be responsible all applicable permits and licenses.
All public and private property disrupted by Franchisees construction or excavation activities shall
be promptly restored by Franchisee at its expense to substantially its former condition subject to
inspection by the City Director of Public Works or other designated City officials and compliance
by Franchisee with reasonable remedial action required by said official pursuant to the inspection.
Franchisee shall comply with the City Director of Public Works' requests for responsible and
prompt action to remedy all damage to private property to adjacent streets or dedicated easements
caused by Franchisee during excavation or construction work. All such remedial work shall be
performed at Franchisee's expense.
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3. Installation and Maintenance of Franchisee Facilities The installation, maintenance,
renovation and replacement of any facilities by the Franchisee shall be subject to permitting (and
fees related thereto), inspection and approval of location and timing by the official City
representative. Such regulation shall include, but not be limited to the following matters: location of
facilities in the streets, alley and dedicated easements; disturbance and reconstruction of pavement,
sidewalks and surface of streets, alleys, dedicated easements and driveways. All Franchisee
facilities shall be installed so as to cause a minimal amount of interference with such property.
Franchisee's facilities shall not interfere with any water mains, sewer mains, municipal
telecommunication facilities or any municipal or authorized public use of the City's streets and
rights -of -way. Franchisee shall erect and maintain its facilities in such a way so as to minimize
interference with trees and other natural features and vegetation. Franchisee shall keep in good
working order all facilities constructed, erected or used within the City. The Franchisee and all
subcontractors shall comply with all local regulations and ordinances.
4. Obligations Regarding Facilities The Franchisee shall install, repair, renovate and
replace its facilities with due diligence in a good and workmanlike manner and the Franchisee's
facilities will be of sufficient quality and durability to provide adequate and efficient Cable
Television Service to the City and its residents. Franchisee shall have the duty to maintain, install,
repair, renovate and replace all lines, wires, cables and other facilities up to the consumer premises
at no charge or expense to the consumer. Nothing herein shall be construed to provide rights to
third parties nor shall it excuse any individual from liability caused by negligent or intentional
action.
5. Compliance with City Requirements Franchisee shall comply with all City
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requirements regarding curb and pavement cuts, excavating, digging, construction of overhead
facilities, placement of poles, stanchions and other similar facilities and related construction
activities. At least annually Franchisee shall make available for the City's review any preliminary
plans for major capital construction. The City's purpose in receiving said plans is for use in planning
City projects and to coordinate with Franchisee's construction projects. It is understood that
Franchisee shall not be bound to any construction projections contained in these annual plans.
Except for emergencies, all installations will be coordinated with the City's municipal planning and
street improvement programs.
6. Noninterference with Public Works Franchisee's facilities shall not unreasonably
interfere with City facilities or other municipal use of streets and rights -of -way, including but not
limited to telecommunications facilities , traffic signal lights, water mains, sewer mains; nor shall
Franchisee's facilities unreasonably interfere in any way with facilities, property, and uses of special
districts and other municipal franchisees. All such facilities shall be installed on both City and
private property so as to cause a minimal amount of interference with same.
7. City Regulation The City expressly reserves its right and duty to adopt, from time
to time, in addition to the provisions herein contained, such charter provisions, ordinances and rules
and regulations as may be deemed necessary by the City to protect the health, safety and welfare of
its citizens and their property.
ARTICLE XXXI
PERMITS AND APPROVALS
Before occupying, working upon or otherwise utilizing any street, public place or public
easement, Franchisee shall apply for and obtain any permit, license, authorization or other approval
46
required by ordinances in force within the City, pay any fees and post any security required by such
ordinances, to the extent they are generally applicable, and in the course of constructing, installing,
replacing, maintaining and repairing the Cable Television System, shall comply with all applicable
requirements of such ordinances and any terms or conditions of encroachment permits, licenses,
authorizations or approvals issued thereunder.
The City shall be authorized to establish generally applicable special fees payable by
Franchisee and other businesses to defray the costs incurred by the Department of Public Works of
the City in supervising and regulating the installation, maintenance, repair or replacement of the
Cable Television System within the streets of the City. For the purpose of promoting safety,
reducing inconvenience to the public, and insuring adequate restoration and repair of the streets, the
Director of Public Works shall be authorized to issue regulations regarding the conditions under
which Franchisee shall use the City streets pursuant to the provisions of this Franchise, and
Franchisee and its officers, employees, contractors and subcontractors shall comply with any and all
such regulations.
Payments made pursuant to the provisions of this Article shall not be considered franchise
fees and shall be in addition to the payment of franchise fees as required by Article VI of this
franchise.
ARTICLE XXXII
RESTORATION OF STREETS AND PRIVATE PROPERTY
All disturbance by Franchisee ofpavement, sidewalk, driveways, landscaping or other
surfacing of streets shall be repaired or replaced by Franchisee, at its sole cost, in a manner
approved by the Director of Public Works and in compliance with the terms of this Franchise and
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applicable ordinances of the City, and restored to a condition as good as the condition that existed
before the disturbance occurred. Failure of Franchisee to substantially restore disturbed property
within the public rights -of -way or easements to City's approval will entitle City to make the
necessary restoration at the Franchisee's sole expense.
To the extent practicable, Franchisee shall accommodate the desires of any property owner
respecting location with easements or rights -of -way traversing private land of above ground boxes
or appurtenances constituting a part of the Cable Television System. Any disturbance of
landscaping, fencing or other improvements upon private property, including private property
traversed by easements or rights -of -way utilized by a Franchisee, shall be promptly repaired or
restored (including replacement of such valuables as shrubbery and fencing) to the reasonable
satisfaction of the property owner as soon as practicable at the sole expense of the Franchisee.
Franchisee shall contact the occupants of all private property in advance of entering such property
for the purpose of construction or initially installation of elements of the system within easements or
rights -of -way traversing such property.
ARTICLE XXXIII
ERECTION OF POLES
This Franchise shall not be deemed to expressly or impliedly authorize the Franchisee to
construct or install poles or wire - holding structures within streets for the purpose of placing cables,
wires, lines or otherwise, without the written consent of the City. Such consent shall be given upon
such terms and conditions as the City in its sole discretion may prescribe, which shall include a
requirement that the Franchisee perform all tree trimming required to maintain the poles clear of
obstructions at the direction of City but at the Franchisee's sole expense.
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With respect to any poles or wire - holding structures which Franchisee is authorized to
construct and install within streets, public places and public easements, a public utility or public
utility district serving the City may, if denied the privilege of utilizing such poles or wire - holding
structures by the Franchisee, apply for such permission to the City Council. If the City Council
finds that such use would enhance the public convenience and would not unduly interfere with the
Franchisee's operations, the City Council may authorize such use subject to such terms and
conditions as it deems appropriate, including reasonable payments to Franchisee.
ARTICLE XXXIV
UNDERGROUNDING
Except as hereinafter provided, in all areas of the City where the cables, wires and other like
facilities of a public utility are placed underground, Franchisee shall construct and install its cables,
wires and other facilities underground at its sole expense. Amplifier boxes and pedestal mounted
terminal boxes may be placed above ground if required by existing technology, but said amplifier
boxes and terminal boxes shall be of such size and design and shall be so located as not to be
unsightly, when compared to cable industry standards, or unsafe. With respect to any cables, wires
and other like facilities constructed and installed by Franchisee above ground, the Franchisee shall,
at its sole expense, reconstruct and reinstall such cables, wires or other facilities underground
pursuant to any project under which the cables, wires or other facilities of a public utility or public
utility district are required to be placed underground within an area.
ARTICLE XXXV
RELOCATION
If during the term of this Franchise the City, a public utility, a public utility district, a public
49
water company or water district, a public sanitation district, a public drainage district or any other
similar special district, elects to, or requires a property owner to, alter, widen, repair, realign,
abandon, improve, vacate, reroute or change the grade of any street or sidewalk or to replace, repair,
install, maintain, or otherwise alter any above ground or underground cable, wire, conduit, pipe,
line, pole, wire - holding structure, structure, or other facility utilized for the provision of utility or
other services or transportation of drainage, sewage or other liquids or gases, the Franchisee shall,
except as otherwise provided, at its sole expense, remove or relocate its poles, wires, cables,
underground conduits, manholes and any other facilities which it has installed. Upon request of
City, as a part of the relocation of other facilities, Franchisee shall underground all overhead wires,
cables and other like facilities. To the extent that public funds are available for such relocation
activities, the Franchisee shall be equitably allowed to receive such funds to the same extent as other
affected franchisees of the City. If such removal or relocation is required within a subdivision in
which all utility lines, including those for the Cable Television System, were installed at the same
time, the entities relocating their facilities may decide among themselves who is to bear the cost of
relocation; provided that the City shall not be liable to a Franchisee for such costs. Regardless of
who bears the costs, Franchisee shall take action to remove or relocate at such reasonable time or
times as are directed by the agency or company undertaking the work. Reasonable advance written
notice shall be mailed to the Franchisee advising the Franchisee of the date or dates removal or
relocation is to be undertaken.
ARTICLE XXXVI
TREE TRIMMING
Franchisee, its officers, agents, employees, contractors, subcontractors or others acting
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pursuant to its direction, shall not remove or trim any tree or portion thereof (either above, at or
below ground level) which is located within a street without the prior approval of the Director or
Public Works of the City. Such approval may be given or withheld upon such reasonable terms and
conditions as the Director or Public Works seems appropriate. Franchisee shall be responsible for
and shall indemnify, defend and hold harmless the City and its officers, and employees from and
against and all claims, liability, judgments, damages or losses arising out of or resulting from the
removal, trimming, mutilation of or any injury to any tree or trees caused by the Franchisee or its
officials, employees, contractors or subcontractors.
ARTICLE XXXVII
MOVEMENT OF BUILDINGS
Franchisee shall, upon request by any person holding a building moving permit, license or
other approval issued by the City or State, temporarily remove, raise or lower its wires to permit the
moving of buildings. The expense of such removal, raising or lowering shall be paid by the person
requesting same, and Franchisee shall be authorized to require such payment in advance.
Franchisee shall be given not less than two (2) business day's oral or written notice to arrange for
such temporary wire changes. If the request to raise or lower wires to permit the moving of
buildings is made by the City for a municipal purpose, the removal, raising or lowering shall be at
the sole expense of the Franchisee.
ARTICLE XXXVIII
REMOVAL
Upon expiration or termination of this Franchise and consistent with the process outlined in
the Cable Act, if neither the City nor another cable system operator purchases the Cable Television
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System, Franchisee may, and upon request of City shall, remove from the streets any underground
cable which has been installed in such a manner that it can be removed without trenching or other
opening of the streets except as hereinafter provided. The Franchisee shall remove, at its sole cost
and expense, any underground cable or conduit by trenching or opening of the streets as ordered by
the City Council based upon a determination, in the sole discretion of the Council, that removal is
required in order to eliminate or prevent a hazardous condition. Any order by the City Council to
remove cable or conduit shall be mailed to the Franchisee not later than thirty (30) calendar days
following the date of the expiration or termination of the Franchise of its intention to remove cable
and a schedule for removal by location. The schedule and timing of removal shall be subject to
approval and regulation by the Director of Public Works of the City. Removal shall be completed
not later than twelve (12) months following the date of expiration of the Franchise. Poles,
underground cable, conduit and other facilities in the streets which is not removed shall be deemed
abandoned and title thereto shall be vested in the City.
Upon expiration and non - removal or termination of Franchise subject to applicable federal
or state law, and if neither the City nor the cable system operator purchases the System, the
Franchisee, at its sole expense, shall, unless relieved of the obligation by the City, remove from the
streets all above ground elements of the Cable Television System, including but not limited to
amplifier boxes, pedestal mounted terminal boxes, and cable attached to or suspended from poles,
which are not purchased by the City or its assignee.
The Franchisee shall apply for and obtain such permits, licenses, authorizations or other
approvals and pay such fees and deposit such security as required by applicable ordinance of the'
City, shall conduct and complete the work of removal in compliance with all such applicable
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ordinances, and shall restore the streets to the same condition they were in before the work of
removal commenced. The work of removal shall be completed not later than one (1) year following
the date of expiration of the Franchise.
ARTICLE XXXIX
ENFORCEMENT AND REMEDIES
Upon a determination that the Franchisee has committed an act or omission in
violation of any of the provisions of this Franchise, in addition to any other remedies available at
law or equity, the City may apply any one or more of the following remedies:
a. Revoke or terminate the Franchise as provided in Article XLIX.
b. Seek legal or equitable relief from any court of competent jurisdiction.
C. Obtain liquidated damages as provided herein.
2. Liquidated Damages Because Franchisee's failure to comply with some of the
provisions of this Franchise Agreement will result in injury to the City and/or subscribers, 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 to the City resulting form the specified injury.
a. For failure to comply with requirements for public, educational, and
governmental use of the System: $200.00 /day for each violation for each day the violation
continues.
b. For violation of subscriber agreement requirements and customer service
standards and for failure to provide any subscriber equipment: $150.00 per violation; except that for
violations for which Franchisee's compliance is not measured in terms of response to individual
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customers, $250.00 per month for any period during which it fails to meet applicable performance
standards.
C. The City may impose liquidated damages following the procedures provided
in this paragraph c. Franchisee shall have thirty (30) days from the date a notice of violation is sent
to Franchisee to cure any breach for which liquidated damages may be imposed before such
damages shall be imposed, unless the breach involves nonpayment of sums owing, in which case
Franchisee shall have ten (10) days to cure. Within thirty days of the date a notice of violation is
sent to Franchisee, Franchisee may request, in writing, a public hearing before the City Manager,
pursuant to the procedures specified in Title I of the Pueblo Municipal Code for quasi-judicial
matters. After hearing, the City may impose liquidated damages, accruing from the date of notice of
the violation, unless it finds that (a) there was no violation; or (b) damages should not be imposed.
Any amendments to the quasi - judicial procedures of the City, codified in Title I of the Pueblo
Municipal Code, must provide the same level of due process as is provided under the procedures
provided for under the quasi-judicial procedures as the same existed on the effective date of the
Franchise Agreement. Nothing herein prevents Franchisee from raising a defense to the imposition
of liquidated damages from the date of violation based upon laches, waiver, statute of limitations, or
any other similar defense. Franchisee may appeal any imposition of liquidated damages to a state
court of competent jurisdiction located in Pueblo County, Colorado, pursuant to the provisions of
C.R.C.P. 106(a)(4).
d. In no event may liquidated damages be assessed for a specific recurring or
continuing violation for a time period exceeding one hundred twenty (120) consecutive days. If,
after that amount of time, Franchisee has not cured or commenced to cure the alleged breach to
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the satisfaction of the City, the City may pursue all other available remedies.
3. The provisions of this Article shall not be construed in such a way as to relieve the
Franchisee from liability for any damages which may arise out of and be proximately caused by a
breach by the Franchisee of any of the provisions of this Franchise
ARTICLE XL
SYSTEM OWNERSHIP
Legal and equitable title to the Cable Television System, as between City and Franchisee,
shall be vested in the Franchisee.
ARTICLE XLI
UNIFORMITY OF SERVICES
Services provided by Franchisee through its Cable Television System within the Franchise
Area shall be offered upon nondiscriminatory terms to subscribers and users, and shall not differ
based upon geographical location, income levels, or the racial or ethnic composition of any areas
within the service territory. The provisions of this Article shall not prohibit Franchisee from
offering services in rate tiers or upon a bundled, promotional, bulk sales or "test marketing" basis.
ARTICLE XLH
SUBSCRIBER ANTENNAS
Franchisee shall not remove or offer to remove any potential or existing subscriber antenna,
or provide any inducement for removal as a condition respecting the provision of service or the
discounting of subscriber charges. The parties agree that the foregoing does not prohibit Franchisee
from offering discounts or promotions where the surrender of an antenna or satellite "dish" is a
component thereof.
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ARTICLE XLIII
ANTICOMPETITIVE PRACTICES
This Franchise shall not be deemed expressly or impliedly to authorize the Franchisee to
utilize its Cable Television System to provide any service in such a manner as to unlawfully damage
any business competitor or other third party or violate any statutes or regulations of the United
States or State of Colorado.
The Franchisee shall not, by act or omission, engage in any anticompetitive practice in
violation of any statutes or regulations of the United States or State of Colorado. Any final decision
by the Court or agency of competent jurisdiction that Franchisee engaged in any such anti-
competitive practice shall constitute a nonexclusive ground for termination of the Franchise by the
City pursuant to Article XLIX.
The provisions of this Article shall not confer any rights upon third parties.
ARTICLE XLIV
MAINTENANCE AND REPAIR
During the term of Franchise, the Franchisee shall maintain its Cable Television System in
good condition, render efficient service, make repairs promptly, and interrupt service only for good
cause and for the shortest practicable time.
ARTICLE XLV
PRIVACY
Privacy Protection The Grantee shall comply with all applicable federal and state
privacy laws, including Section 631 of the Cable Act and regulations adopted pursuant thereto.
ARTICLE XLVI
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EQUAL EMPLOYMENT OPPORTUNITY
Franchisee shall not discriminate in employment or selection of contractors or
subcontractors on the basis of race, color, religion, national origin, age, marital status or gender.
Franchisee shall comply with the Equal Employment Opportunity Regulations promulgated by the
FCC, and all applicable Federal and State statutes and regulations and ordinances of the City.
ARTICLE XLVII
GUARANTEE ACTION
1. Guarantee Franchisee shall at all times during the term of this Franchise maintain in
full force and effect a corporate surety bond issued by a qualified bonding company in the amount
of $300,000, effective for the entire term of the franchise, except as otherwise agreed by the City.
In the event Franchisee shall fail to comply with any one or more of the provisions of the Franchise,
whether or not the Franchise is terminated, there shall be recoverable under the corporate surety
bond and damages suffered by the City as a result thereof, including but not limited to, the full
amount of any liquidated damages, delinquent franchise fees, compensation and costs of repairing
or completing the Cable Television System, and the cost of removal or abandonment of property
and repair of streets and other public or private improvements. Said corporate surety bond shall not
operate as a limitation upon the recovery of damages suffered by the City, nor shall it limit the
ability of City to recover damages from any proper party. In lieu of a surety bond, Franchisee may
substitute a "Guarantee In Lieu of Bond" executed by Comcast Corporation, a Delaware
corporation, in substantially the form of Attachment "A' hereto. Neither the provisions of this
section nor any damages recovered thereunder shall be construed to excuse faithful performance by
the Franchisee or to limit the liability of Franchisee under the Franchise for damages, either to the
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full amount of the corporate surety bond or otherwise. Said corporate surety bond shall contain a
provision which prohibits cancellation by the bonding company during the term of the Franchise
without substitution of a comparable surety bond acceptable to the City.
2. Insurance Requirements Franchise shall maintain in full force and effect, at its own
cost and expense, during the term of the Franchise, Comprehensive General Liability Insurance in
the amount of $1,000,000 combined single limit for bodily injury, property damage and contractual
liability. Said insurance shall designate the City as an additional insured and waive subrogation
against City. Such insurance shall be noncancellable except upon thirty (30) days prior written
notice to City.
ARTICLE XLVIII
INDEMNIFICATION BY FRANCHISEE
The Franchisee shall construct, maintain and operate its plant, equipment, structures and
other facilities in a manner which provides reasonable protection against injury or damage to
persons or property. Franchisee shall save the City harmless and indemnify and defend the City
from and against all claims, demands, liability, judgments and loss whatsoever in nature, and
reimburse the City, for all its reasonable expenses, including attorney and expert witness fees,
arising out of or resulting directly or indirectly from the operations of the Franchisee within the City
and the securing of and the exercise by Franchisee of the franchise rights granted herein, including
any third -party claims, administrative hearings and litigation. None of the City expenses
reimbursed by the Franchisee under the Article shall be surcharged to the City or its residents.
Within fourteen (14) days after receipt of the same by the City Attorney, the City will
provide notice to Franchisee of the pendency of any claim or action against the City arising out of
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the exercise by the Franchisee of its franchise rights. Franchisee will be permitted, at its own
expense, to appear and defend or to assist in defense of such claim.
ARTICLE XLIX
TRANSFER AND TERMINATION
1. No Transfer Without City Consent
a. Franchisee agrees that the franchise granted to it by the City is personal in
nature and held in trust. No transfer of ownership or change in control of the franchise or the rights
granted thereunder may occur without the prior consent of the City, except that such consent shall
not be required for an inter - corporate transfer from one wholly -owned subsidiary to another wholly -
owned subsidiary of the parent corporation of Franchisee, existing on the effective date of this
Franchise. The consent required by City shall be given or denied no later than 120 days following
submission of a completed application therefore together with a transfer application fee, consistent
with applicable law, in an amount deemed sufficient by City for City to engage and compensate
qualified consultants for evaluation of the transfer. Any unexpended amount of the fee shall be
refunded if not fully expended in the course of City's review process.
b. As used in this section, "control' means actual working control, in whatever
manner exercised. "Control" includes, but may not necessarily require, majority stock ownership.
A rebuttable presumption that a change in control has occurred shall arise upon the acquisition or
accumulation by any person or group of persons of fifty percent (50 %) plus one share or more of
the voting shares of the Franchisee. A change in control shall also be deemed to occur upon the
acquisition or merger of Franchisee's parent corporation by or with any other person or entity.
2. Application: Requirements
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a. Franchise shall state in the application whether any of the following apply to
the proposed transferee and the details thereof.
(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; and
(2) Has ever had a judgment in an action for fraud, deceit, or
misrepresentation entered against the proposed transferee by any court of competent
jurisdiction; and
(3) Has pending any material legal claim, law suit, or administrative
proceeding arising out of or involving a cable system, except that nay such claims, suits or
proceedings relating to insurance claims, theft of service, or employment matters need not
be disclosed;
(4) Is financially solvent, by submitting aggregate financial data
including financial statements that are audited by a certified pubic accountant who may also
be an officer of the parent corporation along with any other data that the City may
reasonably require; and
(5) Has the financial and technical capability to enable it to maintain and
operate the cable system for the remaining term of the Franchise.
b. In seeking the City's consent to any transfer of ownership or change in
control, the Franchisee shall indicate whether the Franchisee has failed to comply with any
provision of this Agreement or of any applicable customer or consumer service standards
promulgated or in effect under this Franchise at any point during the term of this Franchise
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Agreement.
C. The consent or approval of the City to any transfer by the Franchisee does
not constitute a waiver or release of the rights of the City in or to its public rights -of -way or
easements and any transfer shall by its own terms by expressly subject to the terms and conditions
of this Franchise Agreement.
d. A sale, transfer, or assignment of the Franchise may not be approved without
the successor in interest becoming a signatory to this Franchise Agreement.
e. Notwithstanding anything contained in this Agreement, Franchisee may
pledge the assets of the cable system for the purpose of financing; provided that such pledge of
assets shall not impair Franchisee or mitigate Franchisee's responsibility and capability to meet all
its obligations under the provisions of this Agreement.
3. Void Transfers Any sale, transfer, assignment, lease or sublease, or whatever kind
or nature made in violation of the provisions of this Article shall be void.
4. Termination of Franchise The following material breaches of the obligations of
Franchisee under the Franchise shall constitute nonexclusive grounds for termination of Franchise
by the City.
a. Cumulative unexcused delay in excess of thirty (30) calendar days in
completion of the Cable Television System in accordance with the construction schedule, if any,
submitted pursuant to the provisions of this Franchise;
b. Any material violation of sections I or 2 of this Article;
C. The failure to make any payments required by Article VI hereof;
d. Any other act or omission by the Franchisee which materially violates the
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terms, conditions or requirements of this franchise and for which corrective or remedial action is not
commenced within thirty (30) calendar days following mailing to the Franchisee of written notice of
the violation. For purposes of this Article, the definition of "material terms and conditions" in
Article XXIV does not apply.
5. Commencement of Termination Proceedings The City Council shall not determine
that this Franchise shall be terminated upon any ground set forth in this Franchise until a hearing has
been conducted upon the matter. Written notice of the time, date and place of the hearing shall be
mailed to the Franchisee and the Franchisee's guarantor not later than thirty (60) days prior to
hearing. The notice shall state the reason(s) for the hearing, describe the basis for termination, and
identify specifically the terms, conditions or requirements with respect to which the breach has
occurred.
The hearing shall be conducted by the City Council. The costs incurred by the
parties for attorneys' fees, expert witness fees and other expenses shall be borne solely by the party
incurring the costs.
6. Conduct of Hearing Franchisee and City shall be entitled to the compulsory
attendance of witnesses at the hearing through exercise of the City Council's subpoena powers. All
witnesses testifying at the termination hearing shall be swom. Witnesses shall be subject to direct
and cross - examination. However, formal rules of evidence applicable to the trial of civil or criminal
proceedings in the trial courts of this State shall not be applicable to the hearing. The provisions of
the Administrative Procedure Act shall not be applicable to such hearings. The hearing may be
continued from time to time.
If the decision by the City Council is that the Franchise shall be terminated, the
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Council shall adopt a resolution which terminates the Franchise and includes the City Council's
decision. The effective date of termination shall be the date prescribed by the City Council in its
sole discretion but not earlier than sixty (60) days after the date of the resolution or sooner upon
consent of Franchisee.
7. Alternative Remedies No provision of this Franchise shall be deemed to bar the
City or Franchisee from seeking or obtaining judicial relief from a violation of any provision of this
Franchise or any ordinance, order, rule, regulation, requirement or directive of the City. Neither the
existence of other remedies identified in this Franchise nor the exercise thereof shall be deemed to
bar or otherwise limit the rights of the City or Franchisee to recover monetary damages for violation
of the Franchise, or judicial enforcement of any obligations thereunder by means of specific
performance, injunctive relief or mandate, or any other judicial remedy at law or in equity.
8. Nonenforcement Neither Franchisee nor City shall be relieved of any obligation to
comply with any of the provisions of this Franchise or any ordinance, order, rule, regulation,
requirement or directive promulgated by the City by reason of any failure of the City or Franchisee,
respectively, or the officers or employees of either to enforce prompt compliance.
9. Purchase of System by City In the alternative, and subject to the Federal and State
law, in the event of termination of the Franchise either through nonrenewal, surrender, or forfeiture,
the City, at its election and, upon the payment to Franchisee of a price pursuant to 47 U.S.C. Section
547 (b) (1) or other applicable provisions of state or federal law, may purchase the. Cable Television
System. The above price shall not include, and the Franchisee shall not receive, any payment or
compensation for the valuation of any right or privilege under this Franchise. In the event of
dispute, the matter of purchase price for the System shall be submitted to a panel of three (3)
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competent appraisers, one appointed by the City, one appointed by the Franchisee and one
appointed jointly by the City and the Franchisee, for binding arbitration.
ARTICLE L
MISCELLANEOUS PROVISIONS
1. Use of Franchisee Right -of -Way The Franchisee will permit the City use of right-
of-way which Franchisee may now, or in the future, own or have an interest in within the City for
the purposes set forth in and pursuant to the provisions of the Colorado Park and Open Space Act of
1984, C.R.S. Section 29 -7 -.5 -101, et se ., provided that the Franchisee shall not be required to
make such an offer in any circumstances where such offer would interfere with the Franchisee's use
of right -of -way. If the Franchisee's offer of use is accepted by the City, then any improvements
deemed appropriate by the City and consistent with the purpose of the Park and Open Space Act of
1984 shall he made by the City at its expense.
2. Severabilitv It is the intent of the parties hereto that all provisions and sections of
this Franchise he liberally construed to protect and preserve the peace, health, safety and welfare of
the inhabitants of the City and should any provision or section of this Franchise be held
unconstitutional, invalid or otherwise unenforceable, such holding shall not be construed as
affecting the validity of any of the remaining provisions or sections, it being the intent that they shall
stand, notwithstanding the invalidity or unenforceability of any particular provision or section
hereof.
3. Filing When not otherwise prescribed herein, all matters herein required to be filed
with the City shall be filed with the City Manager.
4. Suaersedes Previous Franchise This Franchise supersedes any previous
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agreements, licenses, permits or franchises between the parties as to future rights and remedies
thereunder, but not those existing as of December 31, 2006.
5. Effective Date This Franchise will become effective 30 days after passage and
approval of an ordinance of the City Council approving same.
6. Franchisee Approval Franchisee shall file with the City Clerk its written acceptance
of the Franchise and of all of its terms and provisions at least ten (10) days prior to the effective date
of the franchise granted by this Agreement. The acceptance shall be unconditional and in form and
content approved by the City Attorney. If Franchisee shall fail to timely cause to be filed its written
acceptance as herein provided, this Franchise shall be and become null and void.
7. Sole source contracts.
Article XXVIII of the Colorado Constitution was amended by vote of the people on
November 4, 2008 ( "Amendment 54 ") to provide certain limitations on holders of "sole source'
government contracts entered into by government entitles. On August 12, 2009, Denver District
Court Judge Catherine Lemon issued an order granting a preliminary injunction against
enforcement of Amendment 54, holding that it violated rights of free speech and association
guaranteed by the First Amendment. The parties agree that if, at any time during the term of this
Franchise, a court of appropriate jurisdiction determines that (1) Amendment 54 is constitutional or
otherwise lawful under applicable law; or (2) Amendment 54, if lawful, applies to cable television
franchise agreements and must be included in such agreements, the City or Franchisee may elect,
by written notice to the other party, to reopen this Franchise for negotiations for a sixty day period
solely with respect to negotiating the inclusion of appropriate Amendment 54 language in this
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Franchise.
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.O
ATTEST:
1�
City Verk
APPROVED AS TO FORM:
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PUEBLO, A MUNICIPAL
CORPORATION
B
President of the City Counci
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Name:
Title:
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FRANCHISEE:
COMCAST OF COLORADO N, LLC