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069 of 2016 - Granting to Comcast of Utah II. Inc. a Cable Television Franchise 0 16-1 0 16-15 C 16-820 SALT LAKE CITY ORDINANCE No. 69 of 2016 (Granting to Comcast of Utah II, Inc., a Cable Television Franchise) WHEREAS, Comcast of Utah II, Inc. (the "Company") desires to provide certain cable television services within Salt Lake City, Utah (the "City"), and in connection therewith to establish a network in, under, along, over, and across present and future streets, alleys and rights-of-way of the City, consisting of coaxial and fiber optic cable, together with all necessary and desirable appurtenances; and WHEREAS, the City, in the exercise of its police power, ownership, use or rights over and in the public rights-of-way, and pursuant to its other regulatory authority, believes it is in the best interest of the public to provide to the Company, and its successors, a non-exclusive franchise to operate its business within the City; and WI-IEREAS, the City and the Company propose to enter into a Franchise Agreement, the substantially final form of which has been presented to the City Council at the meeting at which this Ordinance is being considered for adoption; and WHEREAS, the City desires to approve the execution and delivery of such Franchise Agreement and to otherwise take all actions necessary to grant the referenced Franchise to the Company; and WHEREAS, the City believes this Ordinance to be in the best interest of the citizens of the City, NOW, THEREFORE, be it ordained by the City Council of Salt Lake City, Utah, as follows: SECTION 1. Purpose. The purpose of this Franchise Ordinance is to grant to the Company, and its successors and assigns, a non-exclusive right to use the present and future streets, alleys, viaducts, bridges, roads, lanes and public way within and under control of the City for its business purposes, under the constraints and for the compensation enumerated in the Franchise Agreement attached hereto as Exhibit A, and by this reference incorporated herein, as if fully set forth herein(the "Franchise Agreement"). SECTION 2. Short Title. This Ordinance shall constitute the Comcast Cable Television Franchise Ordinance. SECTION 3. Grant of Franchise. There is hereby granted to the Company, and its successors and assigns, in accordance with the terms and conditions of the Franchise Agreement, the right, privilege, and franchise (collectively, the "Franchise"), to construct, maintain and operate in, under, along, over and across the present and future streets, alleys, and rights-of-way and o6ther property of the City, all as more particularly described in the Franchise Agreement. SECTION 4. Term. The term of the Franchise is for a period of ten(10) years from and after the effective date of this Ordinance and its acceptance by the Company. The Company shall pay all costs of publishing this Ordinance. SECTION 5. Acceptance by Company. Within thirty (30) days after the effective date of this Ordinance, the Company shall file an acceptance of this Ordinance, in a form approved by the City Attorney, with the City Recorder of Salt Lake City; otherwise, this Ordinance and the rights granted hereunder shall be null and void. SECTION 6.No Franchise revocation or termination, as provided for in the Franchise Agreement, may be effected until the City Council shall first adopt an ordinance terminating the Franchise and setting forth the reasons therefor, following not less than thirty (30) days prior written notice to the Company of the proposed date of the ordinance adoption. The Company shall have an opportunity on said ordinance adoption date to be heard upon the proposed termination. SECTION 7. This Ordinance shall take effect immediately upon publication. Passed by the City Council of Salt Lake City, Utah, this 25 day of October, 2016. CH ERSON ATTEST: ' CITY, CORDER Transmitted to Mayor on October 26, 2016 Mayor's Action: _ Approved. Vetoed. 1111 or M•' OR Qy CtTyG' '+# _IT. EST: _ s` y R .. �S # Salt Lake City Attorney's Office * 3 e Approved As To Form • lirfrp CITY ' :CORD N. Brian F. Roberts Date: 749//6" (SEAL) Bill No. 69 of 2016. Published: November 11, 2016 HB ATTY-#54339-v1-Comcast Franchise Ordinance.DOC CABLE TELEVISION FRANCHISE AGREEMENT RECORDED BETWEEN SALT LAKE CITY, UTAH AND COMCAST OF UTAH, II INC. JAN 1 3 2017 2016 CITY RECORDER This Franchise Agreement("Franchise") is between Salt Lake City, Utah, hereinafter referred to as "the Franchising Authority" and Comcast of Utah II, Inc., collectively hereinafter referred to as "the Grantee." The Franchising Authority and the Grantee are referred to together as "the Parties." The Franchising Authority hereby acknowledges that the Grantee has the financial, legal, and technical ability to provide services, facilities, and equipment necessary to meet the cable-related needs of the community, and having afforded the public adequate notice and opportunity for comment, desires to enter into this Franchise with the Grantee for the construction and operation of a Cable System on the terms set forth herein. SECTION 1 - Definition of Terms For the purpose of this Franchise Agreement, capitalized terms, phrases, words, and abbreviations shall have the meanings ascribed to them in the Cable Communications Policy Act of 1984, as amended from time to time, 47 U.S.C. §§ 521 et seq. (the"Cable Act"), unless otherwise defined herein. 1.1. "Affiliate" when used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person. 1.2. "Basic Cable" is the lowest priced tier of Cable Service that includes the retransmission of local broadcast television signals. 1.3. "Cable Act"means Title VI of the Communications Act of 1934, as amended. 1.4. "Cable Services" shall mean (1) the one-way transmission to Subscribers of(a) video programming, or(b)other programming service, and (2) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. 1.5. "Cable System" shall mean the Grantee's facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control 1 equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within the Service Area. 1.6 "Customer" means a Person or user of the Cable System who lawfully receives Cable Service therefrom with the Grantee's express permission. 1.7. "Effective Date' means the date on which all persons necessary to sign this Agreement in order for it to be binding on both parties have executed this Agreement as indicated on the signature page(s), unless a specific date is otherwise provided in the "Term" section herein. 1.8. "FCC" means the Federal Communications Commission, or successor governmental entity thereto. 1.9. "Franchises' means the initial authorization, or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, agreement, permit, license, resolution, contract, certificate, ordinance or otherwise, which authorizes the construction and operation of the Cable System. 1.10. "Franchise Agreement" or"Agreement" shall mean this Agreement and any amendments or modifications hereto. 1.11. "Franchise Area" means the present legal boundaries of Salt Lake City as of the Effective Date, and shall also include any additions thereto, by annexation or other legal means. 1.12. "Franchising Authority" means Salt Lake City or the lawful successor, transferee, designee, or assignee thereof. 1.13. "Grantee" shall mean Comcast of Utah II, Inc. or the lawful successor, transferee or assignee thereof 1.14. "Gross Revenue" Shall mean any and all revenues of Grantee derived from the sale of Cable Services to Subscribers within the Franchising Authority, according to generally accepted accounting principles consistently applied, and to the extent such Cable Services utilize the Cable System described in this Franchise. Gross Revenues do not include (i) revenue from sources excluded by law; (ii) revenue derived by Grantee from services provided to its Affiliates; (iii) late payment fees; (iv) charges other than those described above that are aggregated or bundled with amounts billed to Cable Service Subscribers such as charges for Broadband or Telephone services; (v) fees or taxes which are imposed directly on any Subscriber by any governmental unit or agency, and which are collected by the Grantee on behalf of a governmental unit or agency including the FCC User Fee (such exclusion does not include the Franchise Fee imposed upon Grantee herein that may be passed through to a Subscriber); (vi) revenue which cannot be collected by the Grantee and are identified as bad debt, provided, that if revenue previously representing bad debt is collected, this revenue shall be then at time 2 of collection be included in Gross Revenues for the collection period; (vii) refundable deposits, investment income, programming launch support payments, or third party advertising sales commissions; and (viii) Internet services to the extent that such service is not considered to be a Cable Service as defined by law. 1.15. "Person" means any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for profit, but shall not mean the Franchising Authority. 1.16. "Public Way" shall mean any present and future public rights-of-way, streets, highways, alleys, viaducts, bridges, roads, sidewalks, and lanes within Franchising Authority(including the surface, subsurface and airspace), which are owned by Franchising Authority, or which have been dedicated to public use and which are controlled and operated by Franchising Authority. "Public Ways" shall also include public rights-of-way, streets, highways, alleys, viaducts, bridges, roads, sidewalks, and lanes within Franchising Authority (including the surface, subsurface and airspace) which are not owned by Franchising Authority and have not been dedicated to the public to the extent that despite such non-dedication Franchising Authority has the ability to grant the rights set forth herein. 1.17 "Subscriber" means a Person who lawfully receives Cable Service of the Cable System with the Grantee's express permission. SECTION 2 - Grant of Authority 2.1. Grant of Franchise. The Salt Lake City Council has adopted Ordinance No. 69 of 2016. Execution of this Agreement constitutes the unqualified acceptance of the requirements of this Ordinance as of the effective date of this Franchise by Grantee. Such Ordinance is incorporated herein by reference and made an integral part of this Agreement. Pursuant to the Ordinance and subject to the terms and conditions of this Agreement, the Franchising Authority hereby grants to the Grantee a nonexclusive Franchise authorizing the Grantee to construct and operate a Cable System in the Public Ways within the Franchise Area, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in any Public Way such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the Cable System, and to provide such services over the Cable System as may be lawfully allowed. The Franchise granted herein does not include the grant of any franchise to Grantee to provide telecommunications services regulated under Title II of the Telecommunications Act of 1996. 2.2. Term of Franchise. The term of the Franchise granted hereunder shall be Ten (10) years, commencing upon the Effective Date of the Franchise, unless the Franchise is renewed or is lawfully terminated in accordance with the terms of this Franchise Agreement and the Cable Act 3 2.3. Franchise Renewal. A. The Franchising Authority and the Grantee agree that any proceedings undertaken by the Franchising Authority that relate to the renewal of the Grantee's Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act. B. In addition to the procedures set forth in said Section 626(a), the Franchising Authority agrees to notify the Grantee of all of its assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of the Grantee under the then current Franchise term. The Franchising Authority further agrees that such assessments shall be provided to the Grantee promptly so that the Grantee has adequate time to submit a proposal under Section 626(b) of the Cable Act and complete renewal of the Franchise prior to expiration of its term. C. Notwithstanding anything to the contrary set forth in this subsection 4.3, the Grantee and the Franchising Authority agree that at any time during the term of the then current Franchise, while affording the public appropriate notice and opportunity to comment, the Franchising Authority and the Grantee may agree to undertake and finalize informal negotiations regarding renewal of the then current Franchise and the Franchising Authority may grant a renewal thereof. D. The Grantee and the Franchising Authority consider the terms set forth in this subsection 4.3 to be consistent with the express provisions of Section 626 of the Cable Act. 2.4. Reservation of Authority. Nothing in this Franchise Agreement shall (A) abrogate the right of the Franchising Authority to perform any public works or public improvements of any description, (B) be construed as a waiver of any codes or ordinances of general applicability promulgated by the Franchising Authority or(C) be construed as a waiver or release of the rights of the Franchising Authority in and to the Public Ways. 2.5 Other Ordinances. The Grantee agrees to comply with the terms of any lawful, generally applicable local ordinance, to the extent that the provisions of the ordinance do not have the effect of limiting the benefits or expanding the obligations of the Grantee that are granted by this Franchise. Neither party may unilaterally alter the material rights and obligations set forth in this Franchise. In the event of a conflict between any ordinance and this Franchise, the Franchise shall control, provided however that the Grantee agrees that it is subject to the lawful exercise of the police power of the Franchising Authority. Grantee shall also comply with all applicable Federal and State laws, and regulations promulgated thereunder. 4 2.6 Competitive Equity (A) Overview. The Grantee and the Franchising Authority acknowledge that there is increasing competition in the video marketplace among cable operators, direct broadcast satellite providers, telephone companies, broadband content providers and others; new technologies are emerging that enable the provision of new and advanced services to residents of the Franchising Authority; and changes in the scope and application of the traditional regulatory framework governing the provision of video series are being considered in a variety of federal, state and local venues. To foster an environment where video service providers using the public rights-of-way can compete on a competitively neutral and nondiscriminatory basis; encourage the provision of new and advanced services to the residents; promote local communications infrastructure investments and economic opportunities in the Franchising Authority; and provide flexibility in the event of subsequent changes in the law, the Grantee and the Franchising Authority have agreed to the provisions in this Section, and they should be interpreted and applied with such purposes in mind. Franchising Authority agrees that it will not require Grantee to improve any existing infrastructure for the benefit of a competitor. (B) New Video Service Provider Notwithstanding any other provision in this Agreement or any other provision of law, if any Video Service Provider ("VSP") (i) enters into any agreement with the Franchising Authority to provide video services to subscribers in the Franchising Authority, or (ii) otherwise begins to provide video services to subscribers in the Franchising Authority (with or without entering into an agreement with the Franchising Authority), the Franchising Authority, upon written request of the Grantee, agrees to meet in good faith to discuss and revise those material terms and conditions that cause a competitive inequity, so that the regulatory requirements imposed by the Franchising Authority on each entity are materially equal. The Franchising Authority agrees that it will complete the process within ninety (90) days of Grantee's written request unless such a time period is extended by agreement between the parties. For purposes of this section, "material terms and conditions" shall mean franchise fees, insurance, system buildout requirements, security instruments, Public, Education and Government Access Channels and support, permitting, customer service standards, required reports and related record keeping, and notice and opportunity to cure breaches. (C) No Written Agreement between Franchising Authority and Third Party VSP If there is no written agreement or other authorization between the new VSP and the Franchising Authority, the Grantee and the Franchising Authority shall engage in the same process and in the same ninety (90) day period provided for in subsection (B), 5 taking into account the terms and conditions under which other VSP's are allowed to provide video services to subscribers within the boundaries of the Franchising Authority. (D) Effect of this Section on the Overall Agreement Any alteration of this Agreement, pursuant to this Section 2.3 shall be adopted by the City Council in the same manner as the adoption of this Agreement and such alterations will supersede this Agreement. (E) VSP Defined The term "Video Service Provider" or "VSP" shall mean any entity using the public rights-of-way to provide multiple video programming services to subscribers, regardless of the transmission method, facilities, or technology used. A VSP shall include but is not limited to any entity that provides cable services, multichannel multipoint distribution services, broadcast satellite services, satellite-delivered services, wireless services, and Internet Protocol based video services. SECTION 3 —Construction and Maintenance of the Cable System 3.1 No Burden on Public Ways; Minimum Interference. Grantee shall not erect, install, construct, repair, replace or maintain the Cable System in such a fashion as to unduly burden the present or future use of the Public Ways. The Cable System shall be erected and maintained by Grantee so as to cause the minimum interference with the use of the Public Ways and with the rights or reasonable convenience of property owners who adjoin any of the Public Ways. Except for the stringing of overhead lines on existing poles, the location of Cable System facilities within, on, over, under, across or through the Public Ways shall, in all cases, be subject to prior Franchising Authority approval through the permitting process. 3.1.1 Franchise Authority's Use of Trenches. Whenever Grantee proposes to install new underground conduits or replace existing underground conduits within or under the Public Ways, it shall notify the City Representative as soon as practical and shall allow Franchise Authority, at its own expense, and without charge, to utilize any such trench opened by Grantee to lay Franchising Authority's facilities therein; provided that such action will not unreasonably interfere with Cable System facilities or delay the accomplishment of Grantee's project; and provided further that Grantee may require Franchise Authority to agree to reasonable terms and conditions of such use. 3.1.2 Limitation on Use Rights. Nothing in Section 3.1.1 shall be construed as requiring Grantee to alter the manner in which Grantee attaches equipment to the poles, or alter the manner in which it operates and maintains its equipment. Franchising Authority may attach to or otherwise utilize Cable System facilities only after written approval by Grantee. Such approval may include requirements regarding maintenance of such Franchising Authority 6 facilities, either to be done for a reasonable fee by Grantee or by a qualified party who shall fully indemnify and hold Grantee harmless from any liability and whose service would not materially prejudice Grantee interests in safety and insulation from liability. 3.2 Limitation on Franchise Rights. The rights granted to Grantee herein do not include the right to (i) excavate in, occupy or use any Franchising Authority park, recreational areas or other property owned by Franchising Authority other than Public Ways, or(ii) attach or locate any Cable System facilities to or on, or otherwise utilize any Franchising Authority-owned property or facilities or structures other than Public Ways, including without limitation light poles, towers, buildings and trees. The use of such Franchising Authority-owned property or facilities by Grantee shall be considered by Franchising Authority on a case-by-case basis, and shall be subject to payment of additional compensation to Franchising Authority. Similarly, the rights granted herein by Franchising Authority to Grantee do not include the right to situate any Cable System facilities on poles or other property owned by entities other than Franchising Authority and situated in the Public Ways. It shall be the responsibility of Grantee to negotiate any pole-attachment agreements or similar agreements with the owners of such poles or facilities, and to pay to such owners any required compensation. 3.3 Preconstruction Meetings. Grantee shall attend all preconstruction meetings as mutually agreed with Franchising Authority. 3.4 Restoration of Property. Grantee shall restore and replace at its sole cost and expense, in a manner approved by Franchising Authority, any public or private property, real or personal, or portion of the Public Ways, that is in any way disturbed, damaged or injured by the construction, operation, maintenance or removal of the Cable System to at least as good condition as that which existed prior to the disturbance. Grantee's obligation in this subsection shall be limited by, and consistent with, any applicable seasonal or other restrictions on construction or restoration work. Grantee's restoration work shall start promptly but not more than 30 days from Grantee being notified of the problem in question. Upon the failure of Grantee to effect such repair or restoration, Franchising Authority may effect the same, and Grantee shall promptly reimburse Franchising Authority for Franchising Authority's actual, reasonable, and documented costs in connection with such repair or restoration. 3.5 Grantee Duty to Relocate. 3.5.1 Franchising Authority may require the relocation of any Cable System facilities for any lawful purpose, including, without limitation, the resolution of existing or anticipated conflicts or the accommodation of any conflicting uses or proposed uses of the Public Ways which include traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, power lines or other municipal utility infrastructure, or any other type of public structures or improvements which are not used to compete with the 7 Grantee's services, Whenever Franchising Authority shall require the relocation of any Cable System facilities situated within the Public Ways, it shall be the obligation of Grantee, upon notice of such requirement and written demand made of Grantee, to commence the relocation within a reasonable time, but no more than thirty(30) days after the date of notice. In the event Franchising Authority permits for such work are required, "commencement" of relocation will mean a good faith application for such permits and the beginning of work promptly after issuance of the permits by Franchising Authority. Grantee shall complete such relocation within a reasonable period of time, but no more than one hundred twenty(120) days from the date of permit issuance(if applicable) or the beginning of work, whichever is sooner, unless such time is extended by the City Engineer exercising his reasonable discretion in light of the circumstances. Grantee shall in all cases, have the right to abandonment of its property. Franchising Authority agrees to cooperate with Grantee to provide alternate space where available, within the Public Ways, at no additional cost to Grantee. 3.5.2 Except as otherwise provided in this Section 3.5.2, any relocation required by subsection 3.5.1 shall be accomplished by Grantee at the expense of Grantee. Grantee shall not be required to pay for the relocation of Cable System facilities, and may require advance payment for costs and expense, to the extent such removal or relocation is requested solely for aesthetic purposes, in cases where the original location of the facilities was approved by Franchising Authority through the permitting process. 3.5.3 Third Party Relocation. In the event the relocation is required by Franchising Authority to accommodate facilities owned by an entity other than Franchising Authority or Grantee, the cost and expense of such relocation shall be borne by such other entity, and Grantee may require advance payment of such costs and expenses. Any money and all rights to reimbursement from the State of Utah or the Federal government to which Grantee may be entitled for work done by Grantee pursuant to this paragraph, shall be the property of Grantee. Franchising Authority shall assign or otherwise transfer to Grantee all rights it may have to recover costs for such work performed by Grantee and shall reasonably cooperate with Grantee's efforts to obtain reimbursement. 3.5.4 Upon the failure of Grantee to relocate any Cable System facilities within a reasonable period of time in accordance with subsection 3.5.1 above, Franchising Authority may effect such relocation, and Grantee shall promptly reimburse Franchising Authority for all actual, reasonable, and documented costs and expenses incurred by Franchising Authority in connection with such relocation. 3.6 Emergency Notification. Grantee shall provide Franchising Authority with a twenty-four (24) hour emergency telephone number at which a representative of Grantee (not voicemail or a recording) can be accessed in the event of an Emergency. 8 3.7 Duty to Underground. It is the policy of Franchising Authority to have lines and cables placed underground to the greatest extent reasonably practicable. In furtherance of this policy, Grantee agrees as follows: 3.7.1 Grantee shall place newly constructed lines and cables underground in (a) new residential subdivision areas, if required by subdivision regulations adopted by Franchising Authority, and (b) within the Central Business District of Franchising Authority, to the extent there are no available existing aerial facilities provided that such underground locations are actually capable of accommodating the Grantee's cable and other equipment without technical degradation of the Cable System's signal quality. 3.7.2 In any area of Franchising Authority in which there are no aerial facilities other than antennas or other facilities required to remain above ground in order to be functional, or in any portion of the Public Ways in which all telephone, electric power wires and cables reasonably capable of undergrounding have been placed underground, Grantee shall not be permitted to erect poles or to run or suspend wires, cables, or other facilities thereon, but shall lay such wires, cables, or other facilities underground in the manner required by Franchising Authority. 3.7.3 In any region(s) of the Franchise Area where the transmission of distribution facilities of the respective public or municipal utilities are already both aerial and underground, the Grantee shall have the discretion to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. Nothing contained in this Section shall require the Grantee to construct, operate, and maintain underground any ground-mounted appurtenances such as customer taps, line extenders, system passive devices, amplifiers, power supplies, pedestals or other related equipment. 3.8 Temporary Relocation. Grantee shall, at the request of any person holding a building moving permit issued by Franchising Authority, temporarily raise or lower its wires to permit the moving of such building. The expense of such temporary removal or raising or lowering of the wires shall be paid by the person requesting the same, and Grantee shall have the authority to require such payment in advance. Franchising Authority agrees to cause prior written notice of the necessity to move wires to be given as far in advance as possible, provided that in no event shall less than forty-eight(48) hours advance notice be given. 3.9 Vacation. If a street or Public Way where Grantee has facilities is vacated, eliminated, discontinued or closed, Grantee shall be notified of same. At that time, the Grantee shall have the right to continue using such Public Way until Franchising Authority, or other governing body, requires that Grantee remove its facilities. Grantee shall be responsible for the actual, reasonable, and documented cost of removing and relocating such facilities in the event Franchising Authority retains 9 ownership of the vacated street. In all other cases, Grantee shall not be responsible for the cost of removing and relocating such facilities. In cases where Grantee is not responsible for the cost, Grantee may require an advance payment prior to removing and relocating such facilities. When Grantee is required to relocate its facilities, Grantee shall promptly remove the Cable System from such street or Public Way unless Grantee obtains all necessary easements from the affected property owners to use the former street or Public Way or a court orders the provision of such easements. 3.10 Tree Trimming. Grantee may trim trees upon and overhanging the Public Ways so as to prevent the branches of such trees from coming into contact with the Cable System. Grantee shall minimize the trimming of trees to trimming only those trees that are essential to maintain the integrity of the Cable System. Except in Emergencies, (i) all trimming of trees in the Public Way or on Municipal property shall have the prior approval of Franchising Authority and shall be done under the direction of the Franchising Authority's Urban Forester, and (ii) all trimming of trees on private property shall require the consent of the property owner. All trimming shall be done at the expense of Grantee. 3.11 Location of Facilities. Grantee shall keep accurate, complete and current maps and records of the Cable System and all Grantee facilities and, subject to applicable confidentiality provisions, shall make available electronic copies of such maps and records to Franchising Authority, and shall deliver presentation to Franchising Authority within ten (10) business days of request. 3.11.1 Franchising Authority agrees that Grantee may provide general route maps rather than as built maps or route plans. "Route Maps" means "as-built" maps with only the following information removed: Information on the number of lines, whether the lines are copper or fiber, and the nature of any electronics. Concrete pads for pedestals and enclosures for equipment of pedestals shall be shown on the route maps. Upon request by the Franchising Authority, only in an Emergency, Grantee, as soon as reasonably possible, shall inform Franchising Authority of any changes from such maps and records previously suppled and shall mark up any maps provided by Franchising Authority so as to show the location of the Cable System. 3.12 Franchising Authority Duty to Obtain Approval to Move Grantee Property; Emergency Exception. Except as otherwise provided herein, Franchising Authority shall not, without the prior written approval of Grantee, intentionally alter, remove, relocate or otherwise interfere with any portion of the Cable System. Any written approval required shall be promptly reviewed and processed by Grantee and approval shall not be unreasonably withheld. However, if it becomes necessary, in the judgment of Franchising Authority, to cut or move any Cable System facilities because of an Emergency, such reasonable acts may be done without prior written approval of Grantee and the repairs thereby rendered necessary shall be made by Grantee, without charge to Franchising Authority, and neither Franchising Authority nor any agent, contractor or employee thereof shall be liable to Grantee or its customers or third parties 10 for any damages caused to Grantee or the Cable System. 3.13 Common Use of Facilities. In order to minimize the adverse impact to the Public Ways and to Franchising Authority facilities, and inconvenience to the public, caused by construction, repair and maintenance activities of multiple utility franchisees, it is the policy of Franchising Authority to encourage and require the shared use of utility and utility type facilities by Franchising Authority franchisees and pennittees whenever practicable. Grantee shall use good faith efforts to determine the location and existence of excess capacity on existing poles or existing conduit and utilize such capacity to the extent possible under such terms and conditions as Grantee may negotiate with the owners of such poles or conduits. Franchising Authority shall cooperate with Grantee in locating, negotiating, and obtaining permission to use such facilities. Grantee further agrees to use good faith efforts to provide access to its own excess conduit, if any, to another franchisee or permittee on mutually acceptable terms and conditions. 3.14 Identification of the Cable System. Portions of the Cable System installed after the Effective Date that are located in conduit, including conduit of others used by Grantee, shall be marked at the entrance into and exit from each manhole and handhole with Grantee's name and toll-free telephone number to call for assistance. 3.15. Utility Notification Program. Grantee shall participate in the Blue Stakes utility notification program and be a member of said program, whether provided for by statute or otherwise. 3.16 Inspection by Franchising Authority. Cable System facilities shall be subject to inspection by Franchising Authority to the extent reasonably necessary to assure compliance by Grantee with the terms of this Agreement. Franchising Authority shall inspect Cable System facilities at reasonable times and upon reasonable notice to Grantee; provided, however, the inspection shall not interrupt or interfere with any services provided by Grantee. 3.17. Permits and General Obligations. Neither the Franchise nor this Agreement relieves Grantee of the obligation to obtain permits, licenses and other approvals from Franchise Authority necessary for the construction, repair or maintenance of the Cable System. The Grantee shall be responsible for obtaining, at its own cost and expense, all generally applicable permits, licenses, or other forms of approval or authorization necessary to construct, operate, maintain or repair the Cable System, or any part thereof, prior to the commencement of any such activity. The Franchising Authority shall offer the same permitting process to Grantee for all work contemplated under this Agreement that Franchising Authority makes available to any like service provider using the public way. Construction, installation, and maintenance of the Cable System shall be performed in a safe, thorough and reliable manner using materials of good and durable quality. All transmission and distribution structures, poles, other lines, and equipment installed by the Grantee for use in the Cable System in accordance with the terms and conditions of this Franchise Agreement shall be located so as to minimize the 11 interference with the proper use of the Public Ways and the rights and reasonable convenience of property owners who own property that adjoins any such Public Way. 3.18 Safety Requirements and Technical Standards. The Grantee is responsible for ensuring that the Cable System is designed, installed and operated in a manner that fully complies with FCC rules in Subpart K of Part 76 of Chapter I of Title 47 of the Code of Federal Regulations as revised or amended from time to time. As provided in these rules, the Franchising Authority shall have, upon request, the right to obtain a copy of tests and records required in accordance with appropriate rules but has no authority, pursuant to federal law, to enforce compliance with such standards. Construction, operation, and maintenance of the Cable System shall be performed in an orderly and workmanlike manner. All such work shall be performed in substantial accordance with generally applicable federal, state, and local regulations and the National Electric Safety Code(latest edition) and the National Electric Code (latest edition). The Cable System shall not endanger or unreasonably interfere with the safety of Persons or property in the Service Area. 3.19 Backup Power. Grantee shall not use a permanent or semi-permanent internal combustion engine (such as a gasoline or natural gas powered electric generator) to provide backup power at any point or points on the Cable System within the Public Way without Franchise Authority's prior written approval. Such approval may be granted subject to conditions, such as relating to testing times (e.g., not in the middle of the night), screening, noise levels, and temperature and safe discharge of hot exhaust gases. Any such engine used for backup power on property owned by Grantee within the Franchising Authority shall be subject to all applicable rules and regulations. 3.20 Emergency Use. A. In accordance with and at the time required by the provisions of FCC Regulations Part 11, Subpart D, Section 11.51, and as other provisions which may from time to time be amended, the Grantee shall install, if it has not already done so, and maintain an Emergency Alert System (EAS) for use in transmitting Emergency Act Notifications (EAN) and Emergency Act Terminations (EAT) in local and state-wide situations as may be designated to be an emergency by the Local Primary (LP), the State Primary(SP) and/or the State Emergency Operations Center(SEOC), as those authorities are identified and defined within FCC Regulations, Section 11.18. SECTION 4 - Service Obligations 4.1. General Service Build - Out Discretion. Nothing in this Agreement requires Grantee to build to all areas of the Franchise Authority. Grantee retains the discretion to determine the scope, location, and timing of the design and construction of its network, as well as the windows during which residential Subscribers may enroll for services, so long as such decisions are consistent with Section 4.3. Grantee, at its sole discretion, may determine 12 separately defined geographic areas within the Franchise Area where its System will be deployed, services will be offered, or facilities will be upgraded. Franchise Authority may provide information to Grantee on build-out and suggest potential areas where availability of services could be improved or made available. Grantee will evaluate such suggestions in good faith, subject to economic viability and Grantee's discretion on implementation. Grantee agrees to continue to engage in positive community efforts towards "digital inclusion" for those residents within the Franchising Authority's boundaries who may not traditionally have access to Grantee's services, with a particular emphasis on the expansion of access to Grantee's services. 4.2. Programming. The Grantee shall offer to all Customers a diversity of video programming services. 4.3. No Discrimination. Grantee shall not deny service, deny access, or otherwise discriminate on the availability, rates, terms or conditions of any part of the Cable System provided to residential Subscribers on the basis of race, color, creed, religion, ancestry, national origin, gender, sexual orientation, disability, age, familial status, marital status, or status with regard to public assistance. Grantee shall comply at all times with all applicable Federal, State and local laws and regulations relating to nondiscrimination. 4.4. New Developments and Access to Open Trenches. To the same extent and in the same manner as it does to other VSP's and third-party utilities, the Franchising Authority shall provide the Grantee with notice of the issuance of building or development permits for planned developments within the Franchise Area requiring undergrounding of cable facilities or for any trenching activity within the Franchise Area. Furthermore, as a condition of approving any new development within the Service Area, the Franchising Authority agrees to require the developer of the property to notify the Grantee of their right of access to open trenches under this Section. SECTION 5 - Public, Educational and Government (PEG) Channels 5.1 PEG Channels. Within a commercially reasonable amount of time and upon request of the Franchising Authority, Grantee shall make available on the Cable System in its the lowest tier of service three (3) channels collectively known as "PEG Channels" and initially allocated as follows: 5.1.1 One (1) public access channel for use by members of the general public, to be administered by an institution or institutions designated by Franchising Authority, such channel(s) to be provided upon written request by Franchising Authority; and 5.1.2 One (1) educational channel administered by the Salt Lake City School District, University of Utah, and/or other educational entities or institutions designated by Franchising Authority, or their designees, such channel to be provided upon written request by Franchising Authority; and 13 5.1.3 One (1) government channel administered by Franchising Authority or its designee, such channel to be provided upon written request by Franchising Authority. 5.1.4 In order to preserve continuity to Subscribers with respect to PEG, in no event shall Grantee be required to provide more or different PEG content, support, or programming than any other cable franchisee or VSP. 5.2 Lines and Facilities. Grantee shall maintain the currently existing lines and facilities necessary for it to receive PEG Channel programming for simultaneous distribution on the Cable System. This shall include Grantee maintaining the lines, modulators and facilities (such as two-way activated drops) necessary to provide live program origination capability from the studios (or other similar fixed signal origination point) for the PEG Channels (but not video production or playback equipment). Nothing herein is intended to limit Grantee's rights under federal law, including, but not limited to, the FCC's Orders implementing Section 621(a)(1) of the Cable Communication Policy Act, as amended. In the event the Franchising Authority requests additional lines and/or facilities from Grantee under this section, it shall do so at its own cost. SECTION 6 - Customer Service Standards; Customer Bills; and Privacy Protection 6.1. 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. 6.2. Customer Bills and Privacy. 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 3.15 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)). The Grantee shall also comply with all applicable federal and state privacy laws, including Section 631 of the Cable Act and regulations adopted pursuant thereto. 6.3 Fees and Charges to Customers. All rates, fees, charges, deposits and associated terms and conditions to be imposed by the Grantee or any affiliated Person for any Cable Service as of the Effective Date shall be in accordance with applicable FCC's rate regulations. Before any new or modified rate, fee, or charge is imposed, the Grantee shall follow the applicable FCC notice requirements and rules and notify affected Customers, which notice may be by any means permitted under applicable law. 14 SECTION 7 - Oversight and Regulation by Franchising Authority 7.1. Franchise Fees. The Grantee shall pay to the Franchising Authority a franchise fee in an amount equal to Five Percent (5%) of annual Gross Revenues received from the operation of the Cable System to provide Cable Service in the Franchise Area; provided, however, that Grantee shall not be compelled to pay any higher percentage of franchise fees than any other video service provider providing service in the Franchise Area. The payment of franchise fees shall be made on a quarterly basis and shall be due and payable within forty five (45) days after the close of each calendar quarter. Each franchise fee payment shall be accompanied by a report prepared by a representative of the Grantee showing the basis for the computation of the Franchise Fees paid during that period. Grantee shall not intentionally allocate revenue between services subject to the Franchise Fee and services not subject to the Franchise Fee for the purpose of evading or reducing Grantee's Franchise Fee obligations to the Franchising Authority. 7.2. Franchise Fees Subject to Audit. 7.2.1. Upon reasonable prior written notice, during normal business hours at Grantee's principal business office, the Franchising Authority shall have the right to inspect the Grantee's financial records used to calculate the Franchising Authority's franchise fees; provided, however, that any such inspection shall take place within two (2) years from the date the Franchising Authority either receives such payment or has notice of a potential payment discrepancy (such notice shall include constructive notice when Franchising Authority should have known exercising reasonable diligence), whichever is later, after which period any such payment shall be considered final. 7.2.2. Upon the completion of any such audit by the Franchising Authority, the Franchising Authority shall provide to the Grantee a final report setting forth the Franchising Authority's findings in detail, including any and all substantiating documentation. In the event of an alleged underpayment, the Grantee shall have thirty (30) days from the receipt of the report to provide the Franchising Authority with a written response agreeing to or refuting the results of the audit, including any substantiating documentation. Based on these reports and responses, the parties shall agree upon a"Finally Settled Amount". In the event that it is determined that any underpayment was achieved as a result of intentional, grossly negligent or misrepresentative acts or omissions on the part of the Grantee, then penalties and interest shall be calculated on any unpaid fees at the rate of ten (10%) percent per annum computed monthly, from the date such amount should have been paid. In the event that it is determined that any underpayment was the result of a clerical error or negligence on the part of Grantee, then no penalty or interest shall accrue on any unpaid Finally Settled Amount, subject to section 7.2.3 below. For purposes of this Section, the term "Finally Settled Amount(s)" shall mean the agreed upon underpayment, if any, to the Franchising Authority by the Grantee as a result of any such audit. If the parties cannot agree on a "Final Settlement Amount," the parties shall submit the dispute to a mutually agreed upon mediator within sixty (60) days of reaching an impasse. In the event an agreement 15 is not reached at mediation, either party may bring an action to have the disputed amount determined by a court of law. 7.2.3. Any "Finally Settled Amount(s)" due to the Franchising Authority as a result of such audit shall be paid to the Franchising Authority by the Grantee within thirty(30) days from the date the parties agree upon the"Finally Settled Amount." Any unpaid Finally Settled Amount not paid within the thirty (30) days shall incur interest at the rate of ten (10%) percent per annum computed monthly, from the date the parties agree on the Finally Settled Amount. Once the parties agree upon a Finally Settled Amount and such amount is paid by the Grantee, the Franchising Authority shall have no further rights to audit or challenge the payment for that period. The Franchising Authority shall bear the expense of its audit of the Grantee's books and records. 7.3. Oversight of Franchise. In accordance with applicable law, the Franchising Authority shall have the right to, on reasonable prior written notice and in the presence of Grantee's employee, periodically inspect the construction and maintenance of the Cable System in the Franchise Area as necessary to monitor Grantee's compliance with the provisions of this Franchise Agreement. 7.4. Maintenance of Books, Records, and Files. 7.4.1. Books and Records. Throughout the term of this Franchise Agreement, the Grantee agrees that the Franchising Authority may review the Grantee's books and records regarding customer service performance levels in the Franchise Area to monitor Grantee's compliance with the provisions of this Franchise Agreement, upon reasonable prior written notice to the Grantee, at the Grantee's business office, during normal business hours, and without unreasonably interfering with Grantee's business operations. All such documents that may be the subject of an inspection by the Franchising Authority shall be retained by the Grantee for a minimum period of three (3) years. 7.4.2. Proprietary Information. Notwithstanding anything to the contrary set forth in this Section, the Grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature, with the exception of general route maps as described under Section 3.11.1. The Franchising Authority agrees to treat any information disclosed by the Grantee as confidential and only to disclose it to those employees, representatives, and agents of the Franchising Authority that have a need to know in order to enforce this Franchise Agreement and who agree to maintain the confidentiality of all such information. The Grantee shall not be required to provide Customer information in violation of Section 631 of the Cable Act or any other applicable federal or state privacy law. For purposes of this Section, the terms "proprietary or confidential" include, but are not limited to, information relating to the Cable System design or specific location of Grantee's facilities, customer lists, marketing plans, financial information unrelated to the calculation of franchise fees or rates pursuant to FCC rules, or other information that is reasonably determined by the Grantee to be competitively sensitive. Grantee may make proprietary or confidential information 16 available for inspection but not copying or removal by the Franchise Authority's representative. 7.4.3. Government Records Access and Management Act. Franchise Authority is subject to the requirements of the Government Records Access and Management Act, Chapter 2, Title 63, Utah Code Annotated, or its successor ("GRAMA"). Subject to Section 7.4.2 above, Route Maps and this Franchise Agreement submitted to Franchise Authority by Grantee pursuant to this Agreement are subject to disclosure. All other information submitted to Franchising Authority including location of Grantee's infrastructure and customer information shall be exempt from disclosure to the fullest extent available under GRAMA. Grantee affirmatively asserts any confidentiality, privilege, business exception or right associated with confidentiality of materials given to Franchise Authority, to any member of the general public or any competitor of Grantee seeking information about Grantee under GRAMA. All materials may be classified as "protected"by Franchise Authority under GRAMA to the extent that the Franchise Authority can protect or exempt a public record request therein. Franchise Authority shall make reasonable efforts to notify Grantee of any requests made for disclosure of documents submitted under a claim of confidentiality. Grantee may, at Grantee's sole expense, take any appropriate actions to prevent disclosure of such material. Grantee specifically waives any claims against the Franchise Authority related to disclosure of any materials required by GRAMA. 7.5 Other Payments. The Franchise Fee payable pursuant to Section 7.1 is in addition to all sums which may be due to Franchise Authority under this Agreement. In addition to the Franchise Fee, Grantee shall pay: 7.5.1 Franchise Authority's actual, reasonable and documented cost of newspaper publication associated with the adoption of the Ordinance, and 7.5.2 An administrative fee in the amount of$5,000.00 ("Administrative Fee") for all costs and expenses associated with the renewal of this Franchise Agreement between the parties where the principles of competitive equity require such payment when competitors to Grantee have paid a similar fee. Grantee may offset this administrative fee against franchise fees paid to Franchising Authority under Section 7.1 of the Agreement pursuant to federal law, if doing so would maintain competitive equity with Grantee's competitors who have also offset or not paid this administrative fee from their respective franchise fee payments. SECTION 8—Transfer of Cable System or Franchise or Control of Grantee 8.1. Transfer or Assignment of Franchise. Neither the Grantee nor any other Person may transfer the Cable System or the Franchise without the prior written consent of the Franchising Authority, which consent shall not be unreasonably withheld or delayed. No transfer of control of the Grantee, defined as an acquisition of 51% or greater ownership interest in Grantee, shall take place without the prior written consent of the Franchising Authority, which consent shall not be unreasonably withheld or delayed. 17 No consent shall be required, however, for(i) a transfer in trust, by mortgage, hypothecation, or by assignment of any rights, title, or interest of the Grantee in the Franchise or in the Cable System in order to secure indebtedness, or (ii) a transfer to an entity directly or indirectly owned or controlled by Comcast Corporation. Within thirty (30) days of receiving a request for consent, the Franchising Authority shall, in accordance with FCC rules and regulations, notify the Grantee in writing of the additional information, if any, it requires to determine the legal, financial and technical qualifications of the transferee or new controlling party. If the Franchising Authority has not taken final action on the Grantee's request for consent within said time frame after receiving such request, consent shall be deemed granted. 8.2 Conditions of Sale. If a renewal or extension of the Grantee's Franchise is denied or the Franchise is lawfully terminated, and the Franchising Authority either lawfully acquires ownership of the Cable System or by its actions lawfully effects a transfer of ownership of the Cable System to another party, any such acquisition or transfer shall be at the price determined pursuant to the provisions set forth in Section 627 of the Cable Act. The Grantee and the Franchising Authority agree that in the case of a final determination of a lawful revocation of the Franchise, the Grantee shall be given at least twelve (12) months to effectuate a transfer of its Cable System to a qualified third party. Furthermore, the Grantee shall be authorized to continue to operate pursuant to the terms of its prior Franchise during this period. If, at the end of that time, the Grantee is unsuccessful in procuring a qualified transferee or assignee of its Cable System which is reasonably acceptable to the Franchising Authority, the Grantee and the Franchising Authority may avail themselves of any rights they may have pursuant to federal or state law. It is further agreed that the Grantee's continued operation of the Cable System during the twelve (12) month period shall not be deemed to be a waiver, nor an extinguishment of, any rights of either the Franchising Authority or the Grantee. However, Grantee shall have no obligation to remove or transfer the Cable System where it utilizes the system to provide other non-cable services and has any other authority under applicable law to maintain facilities in the public rights-of-way, or where Grantee is able to find a purchaser of the Cable System who holds such authorization. SECTION 9 - Insurance and Indemnity 9.1 Indemnification. Grantee shall indemnify, defend, and hold harmless Franchising Authority and all associated, Affiliated, allied and subsidiary entities of Franchising Authority, now existing or hereinafter created, and their respective officers, boards, commissions, attorneys, agents, and employees (hereinafter referred to as "Indemnitees"), from and against any and all liability, obligation, damages, penalties, claims, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys) arising from any third-party claim of personal injury or property damage that may be imposed upon, incurred by or be asserted against the Indemnitees by reason of any act or omission of Grantee, its personnel, employees, agents, contractors, subcontractors or Affiliates, which may arise out of or be in any way connected with (i) the construction, installation, operation, maintenance or condition of the System, or (ii) the Grantee's failure to comply with any Federal, State or local statute, 18 ordinance or regulation. Grantee's indemnification obligation shall not extend to liability to the extent caused by the negligence or willful misconduct by any Indemnitee or any other third party. 9.2 Assumption of Risk. Grantee undertakes and assumes for its officers, agents, contractors and subcontractors and employees, all risk of dangerous conditions, if any, on or about any Franchising Authority-owned or controlled property, including Public Ways. 9.3 Defense of Indemnitees. In the event any action or proceeding shall be brought against the Indemnitees by reason of any matter for which the Indemnitees are indemnified hereunder, Grantee shall upon notice from any of the Indemnitees, at Grantee's sole cost and expense, resist and defend the same with legal counsel reasonably acceptable to Franchising Authority; provided, however, that Grantee shall not admit liability in any matter on behalf of the Indemnitees without the written consent of Franchising Authority. If Franchising Authority elects to defend such action or proceeding itself, and does not call upon Grantee to provide a defense pursuant to this provision, then Franchising Authority shall be required to obtain consent from Grantee with regard to Franchising Authority's engagement of counsel, experts, accountants or other consultants, such consent not be unreasonably withheld, in order for Grantee to be responsible for reasonable fees and expenses pursuant to Section 9.1 herein. 9.4 Notice, Cooperation and Expenses. Franchising Authority shall give Grantee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section. Nothing herein shall be deemed to prevent Franchising Authority from cooperating with Grantee and participating in the defense of any litigation by Franchising Authority's own counsel. 9.5 Insurance. At all times during the term of this Agreement, plus any time after the term is over during which removal of facilities or restoration is occurring, Grantee shall obtain, maintain, and pay all premiums for, all insurance policies described in this Section, so as to protect the public. Failure to obtain and maintain any insurance policy required by this Section shall be deemed a material breach of this Agreement and may be grounds for termination of this Agreement and the Franchise. 9.5.1 Commercial General Liability. Commercial general liability insurance, including premises operations liability, completed operations liability, Independent Contractors Liability, Contractual Liability coverage, railroad protective coverage and coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage, in an amount not less than Two Million Dollars ($2,000,000) per occurrence, with a Five Million Dollar ($5,000,000) aggregate and a Five Million Dollar ($5,000,000) products and completed operations aggregate. 9.5.2 Comprehensive Automobile Liability. Commercial automobile liability insurance that provides coverage for owned, hired, and non-owned 19 automobiles, with the Franchising Authority as an additional insured, in the minimum amount of a combined single limit of$2,000,000 per occurrence, or $1,000,000 liability per person, $2,000,000 liability per occurrence, and $250,000 property damage. 9.5.3 Workers' Compensation. Workers' compensation and employer's liability insurance sufficient to cover all of the Grantee's employees pursuant to Utah law. This requirement includes those who are doing business as an individual and/or as a sole proprietor as well as corporations and partnerships. In the event any work is subcontracted, the Grantee shall require its subcontractor(s) similarly to provide worker's compensation insurance for all of the latter's employees, unless a waiver of coverage is allowed and acquired pursuant to Utah law. 9.5.4 Umbrella Policies. The coverage amounts set forth above may be met by a combination of underlying (primary) and umbrella policies so long as in combination the limits equal or exceed those stated. If more than one insurance policy is purchased to provide the coverage amounts set forth above, then all policies providing coverage limits excess to the primary policy shall provide drop down coverage to the first dollar of coverage and other contractual obligations of the primary policy, should the primary policy carrier not be able to perform any of its contractual obligations or not be collectible for any of its coverages for any reason during the term of this Agreement, or (when longer) for as long as coverage could have been available pursuant to the terms and conditions of the primary policy. 9.6 Additional Insured/Claims Made Basis. Franchising Authority shall be named as an additional insured on all policies (other than policies for workers' compensation and employer's liability), to the extent such coverage is commercially reasonably available. Any notice of cancellation of coverage will be delivered to Franchising Authority in accordance with policy provisions, which shall include an endorsement indicating that the policy may not be canceled or modified without providing thirty (30) days prior written notice to Franchising Authority. Grantee shall annually provide Franchising Authority with a certificate of insurance evidencing such coverage. All insurance policies (other than workers' compensation and employer's liability insurance) shall be written on an occurrence basis and not on a claims-made basis, to the extent such coverage is commercially reasonably available. 9.7 No Limitation of Liability. No recovery by Franchising Authority of any sum by reason of any insurance policy required by this Agreement shall be any limitation upon the liability of Grantee to Franchising Authority or to other persons. 9.8 Qualified Carriers. All insurance shall be effected under valid and enforceable policies insured by insurance carriers licensed to do business in the State of Utah or by surplus line carriers on the State Insurance Commissioner's approved list of 20 companies qualified to do business in the State of Utah. All insurance carriers and surplus line carriers shall be rated A- or better by A.M. Best Grantee. 9.9 Contractors. Grantee's contractors and subcontractors working in the Public Ways shall carry in full force and effect commercial general liability, automobile liability and workers' compensation and employer's liability insurance commensurate with the scope of their work. In the alternative, Grantee, at its expense, may provide such coverages for any or all its contractors or subcontractors (such as by adding them to Grantee policies). 9.10 Insurance Primary. Grantee's insurance coverage shall be primary insurance with respect to Franchising Authority, its officers, agents, employees, elected and appointed officials, departments, boards, and commissions (collectively "them"), but only for actions of Grantee and for whom Grantee is responsible. Any insurance or self- insurance maintained by any of them shall be in excess of Grantee's insurance and shall not contribute to it (where "insurance or self-insurance maintained by any of them" includes any contract or agreement providing any type of indemnification or defense obligation provided to, or for the benefit of them, from any source, and includes any self- insurance program or policy, or self-insured retention or deductible by, for or on behalf of them). 9.1 1 Changes to Limits. In the event that governmental immunity limits are subsequently altered by legislation or judicial opinion, the Grantee shall provide a new certificate of insurance within thirty(30) days after being notified thereof in writing by Franchising Authority, certifying coverage in compliance with the modified limits or, if no new limits are specified, in an amount reasonably acceptable to Franchising Authority, and commercially available. SECTION 10 - Service to Public Buildings 10.1. Complimentary Service to Public Buildings. The Franchising Authority acknowledges that complimentary services reflect a voluntary initiative on the part of Grantee. Grantee agrees to continue providing these services at a level consistent with that provided at the time of this Agreement. Grantee does not waive any rights it may have regarding complimentary services under federal law or regulation. Should Grantee elect to begin offsetting the value of Complimentary Service against franchise fees, Grantee shall first provide Grantor with ninety (90) days' prior notice. Concerning complimentary services offered to the Franchising Authority, the Franchising Authority agrees that (i) The Cable Service provided shall not be distributed beyond the originally installed outlet without authorization from the Grantee; (ii) The Cable Service provided shall not be used for commercial purposes, and such outlets shall not be located in areas open to the public; (iii) The Franchising Authority shall take reasonable precautions to prevent any use of the Grantee's Cable System in any manner that results in any loss or damage to the Cable System; (iv) The Franchising Authority shall hold the Grantee harmless from any and all liability or claims arising out of the 21 provision and use of Cable Service required by this subsection; (v) The Grantee shall not be required to provide an outlet to such buildings where a non-standard installation is required, unless the Franchising Authority or building owner/occupant agrees to pay the incremental cost of any necessary Cable System extension and/or non-Standard Installation. A non-standard installation under this section is any installation where the distance between the outlet to the public building and the closest node/ access point of Grantee's Cable system is more than One Hundred Twenty Five (125) feet. If additional outlets of Basic Cable are provided to such buildings, the building owner/occupant shall pay the usual installation and service fees associated therewith. SECTION 11 - Enforcement and Termination of Franchise 11.1 Events of Default. The occurrence at any time during the term of the Franchise of any one or more of the following events shall constitute an Event of Default by Grantee under this Agreement. 11.1.1 The failure of Grantee to pay the Franchise Fee (and, in the case of delinquent payments, all required interest thereon) within thirty (30) days after the due dates specified herein. 11.1.2 Grantee's material breach or violation of any of the terms, covenants, representations or warranties contained herein or Grantee's material failure to perform any obligation contained herein. 11.1.3 Grantee's failure to pay or cause to be paid any governmentally imposed taxes of any kind whatsoever, including but not limited to real estate taxes, income taxes, and personal property taxes on or before the due date for same; provided, however, Grantee shall not be in default hereunder with respect to the non-payment of taxes which are being disputed in good faith in accordance with applicable law. 1 1.1.4 The dissolution or termination, as a matter of law, of Grantee. 11.1.5 If Grantee files a voluntary petition in bankruptcy; is adjudicated insolvent; obtains an order for relief under Section 301 of the Bankruptcy Code (11 U.S.C. §301); files any petition or fails to contest any petition filed against it seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any laws relating to bankruptcy, insolvency or other relief for debtors; seeks or consents to or acquiesces in the appointment of any trustee, receiver, master, custodian or liquidator of Grantee, or any of Grantee's property and/or the Franchise and/or of any and all of the revenues, issues, earnings, profits or income thereof; makes an assignment for the benefit of creditors; or fails to pay Grantee's debts generally as they become due. 22 11.2 Uncured Events of Default. Franchising Authority shall give Grantee written notice of any Event of Default and Grantee shall have the following reasonable time period to cure same: For an Event of Default which can be cured by the immediate payment of money to Franchising Authority or a third party, Grantee shall cure such default within thirty (30) days of written notice from Franchising Authority to Grantee of the occurrence of such Event of Default; for an Event of Default by Grantee which cannot be cured by the immediate payment of money to Franchising Authority or a third party, Grantee shall have the longer of (a) sixty (60) days from written notice from Franchising Authority to Grantee of an occurrence of such Event of Default, or (b) if more than sixty (60) days is reasonably needed to cure the Event of Default, such additional time (not to exceed six (6) months) will be given by written notice from Franchising Authority to Grantee which is reasonably needed, as long as Grantee has commenced cure within such sixty (60) day period, and diligently pursues such cure to completion. 11.2.1 If any Event of Default is not cured within the time period allowed for curing the Event of Default, as provided for herein, such Event of Default shall, without notice, become an Uncured Event of Default, which shall entitle Franchising Authority to exercise the remedies provided for in this Article 11. 11.3. Enforcement. Subject to applicable federal and state law, in the event the Franchising Authority, after following the process outlined in Section 11.2, determines that the Grantee is in default of any material provision of the Franchise, the Franchising Authority may: 11.3.1. Seek specific performance of any provision that reasonably lends itself to such remedy as an alternative to damages, or seek other equitable relief; or 11.3.2. Commence an action at law for monetary damages or seek other equitable relief; or 11.3.3. In the case of a substantial default of a material provision of the Franchise, declare the Franchise Agreement to be revoked in accordance with the following: (i) The Franchising Authority shall give written notice to the Grantee of its intent to revoke the Franchise on the basis of a pattern of noncompliance by the Grantee, including two or more instances of substantial noncompliance with a material provision of the Franchise. The notice shall set forth with specificity the exact nature of the noncompliance. The Grantee shall have thirty (30) days from the receipt of such notice to object in writing and to state its reasons for such objection. In the event the Franchising Authority has not received a response from the Grantee or upon receipt of the response does not agree with the Grantee's proposed remedy, it may then seek termination of the Franchise at a public hearing. The Franchising Authority shall cause to be served upon the Grantee, at least thirty (30) days prior to such public hearing, a 23 written notice specifying the time and place of such hearing and stating its intent to request termination of the Franchise. (ii) At the designated hearing, the Franchising Authority shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the Franchise shall be terminated. The public hearing shall be on the record and a written transcript shall be made available to the Grantee within ten (10) business days. The decision of the Franchising Authority shall be in writing and shall be delivered to the Grantee by certified mail. Within sixty(60) days of the receipt of the determination of the Franchise Authority, Grantee may seek review of the determination by a court of competent jurisdiction. Franchise Authority agrees that it will stay any enforcement on the determination during this sixty(60) day time period to allow Grantee to seek judicial remedy or injunctive relief. 11.4 Remedies Not Exclusive. The rights and remedies of Franchising Authority set forth in this Agreement shall be in addition to and not in limitation of, any other rights and remedies provided by law or in equity. Franchising Authority and Grantee understand and intend that such remedies shall be cumulative to the maximum extent permitted by law and the exercise by Franchising Authority of any one or more of such remedies shall not preclude the exercise by Franchising Authority, at the same or different times, of any other such remedies for the same Uncured Event of Default. 11.5. Technical Violation. The Franchising Authority agrees that it is not its intention to subject the Grantee to penalties, fines, forfeitures or revocation of the Franchise for so-called "technical" breach(es) or violation(s) of the Franchise defined as: 11.5.1. Instances or matters where a violation or a breach of the Franchise by the Grantee was good faith error that resulted in no or minimal negative impact on the Customers within the Franchise Area; or 11.5.2. Where there existed circumstances reasonably beyond the control of the Grantee and which precipitated a violation by the Grantee of the Franchise, or which were deemed to have prevented the Grantee from complying with a term or condition of the Franchise. 11.6. Bonds and Other Surety Grantee shall not be required to obtain or maintain bonds or other surety as a condition of continuing the current Cable System. The Franchising Authority acknowledges that the legal, financial, and technical qualifications of the Grantee are sufficient for compliance with the terms of the Franchise and the enforcement thereof. The Grantee and the Franchising Authority recognize that the costs associated with bonds and other surety may ultimately be borne by the Subscribers in the form of increased rates for services. In order to minimize such costs, the Franchising Authority agrees to require bonds and other surety only in such amounts and during such times as there is a reasonably demonstrated need therefore. The Franchising Authority agrees that in no event, however, shall it require a bond or other 24 related surety in an aggregate amount greater than $10,000, conditioned upon the substantial performance of the material terms, covenants, and conditions of the Franchise. Initially, no bond or other surety will be required. In the event that a bond or other surety is required in the future, the Franchising Authority agrees to give the Grantee at least 60 days prior written notice thereof stating the exact reason for the requirement. Such reason must demonstrate a change in Grantee's legal, financial, or technical qualifications which would materially prohibit or impair its ability to comply with the terms of the Franchise or afford compliance therewith. 11.6.1 Section 11.6 above shall not apply to construction or other standard bonds imposed upon Grantee as part of the ordinary permitting process for work in the Franchise Authority's Public Way as required by Salt Lake City Code. SECTION 12 - Miscellaneous Provisions 12.1. Force Majeure. The Grantee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, failure of utility service necessary to operate the Cable System, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Grantee's ability to anticipate or control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Grantee's cable or equipment is attached, as well as unavailability of materials or qualified labor to perform the work necessary. 12.2. Notice. All notices shall be in writing and shall be sufficiently given and served upon the other party by hand delivery, first class mail, registered or certified, return receipt requested, postage prepaid, or by reputable overnight courier service and addressed as follows: To the Franchising Authority: Property Manager Salt Lake City Real Estate Services P.O. Box 145460 Salt Lake City, UT 84114-5460 With a copy to: Salt Lake City Attorney Attn: Franchising P.O. Box 145478 Salt Lake City UT 84114-5478 25 To the Grantee: Comcast Cable Communications Attn: Government Affairs Director 9602 South 300 West Sandy UT 84070 A copy to: Comcast Corporation Legal Department 1701 John F Kennedy Blvd. Philadelphia PA 19103 12.3. Entire Agreement. This Franchise Agreement, including all Exhibits, embodies the entire understanding and agreement of the Franchising Authority and the Grantee with respect to the subject matter hereof and supersedes all prior understandings, agreements and communications, whether written or oral. All ordinances or parts of ordinances that are in conflict with or otherwise impose obligations different from the provisions of this Franchise Agreement are superseded by this Franchise Agreement. 12.4. Severability. If any section, subsection, sentence, clause, phrase, or other portion of this Franchise Agreement is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect. 12.5. Governing Law. This Franchise Agreement shall be deemed to be executed in the State of Utah, and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with, the laws of the State of Utah, as applicable to contracts entered into and performed entirely within the State. 12.6. Modification. No provision of this Franchise Agreement shall be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the Franchising Authority and the Grantee, which amendment shall be authorized on behalf of the Franchising Authority through the adoption of an appropriate resolution or order by the Franchising Authority, as required by applicable law. 12.7. No Third-Party Beneficiaries. Nothing in this Franchise Agreement is intended to confer third-party beneficiary status on any member of the public to enforce the terms of this Franchise Agreement. 26 12.8. No Waiver of Rights. Nothing in this Franchise Agreement shall be construed as a waiver of any rights, substantive or procedural, Grantee may have under federal or state law unless such waiver is expressly stated herein. 12.9 City Representative.The Director of City's Department of Management Services (the "City Representative"), or his or her designee, shall be Franchise Authority's representative for all purposes of this Agreement. Except where City Council action is required by this Agreement or by law, all decisions,judgments, approvals, requests, notices or other actions of Franchise Authority required or permitted under this Agreement shall be made, obtained, issued or delivered or otherwise effected on behalf of Franchise Authority by the City Representative, or his or her designee. 12.10 Waiver of Compliance. No failure by either party to insist upon the strict performance of any covenant, agreement, term or condition of this Agreement, or to exercise any right, term or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or such covenant, agreement, term or condition. No waiver of any breach shall affect or alter this Agreement, but each and every covenant, agreement, term or condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. 12.10.1 The Franchising Authority may waive any obligation of Grantee under this Agreement, in whole or in part, at any time. 12.11 Independent Contractor Relationship. The relationship of Grantee to Franchising Authority is and shall continue to be an independent contractual relationship, and no liability or benefits, such as worker's compensation, pension rights or liabilities, insurance rights or liabilities or other provisions or liabilities, arising out of or related to a contract for hire or employer/employee relationship, shall arise or accrue to either party or either party's agents or employees as a result of the performance of this Agreement, unless expressly stated in this Agreement. 12.12 Captions. All captions are for convenience of use and have no substantive effect, except for those captions in the Definitions section of this Agreement. 12.13 Franchise Accepted. Grantee further acknowledges by execution and delivery of this Agreement that it has carefully read the terms and conditions of this Agreement and the Ordinance and accepts the obligations imposed hereby and thereby regardless of whether such obligations are contained in this Agreement or the Ordinance, or both. 12.14 Binding Agreement. The parties agree that this Agreement complies with State and Federal law as of the Effective Date and agree to be bound by the provisions hereof during the full term hereof, except that the parties also agree to recognize and be bound by any change in any State or Federal law, even if such law materially affects the terms of this Agreement. 27 12.15 Other Covenants. Grantee for itself and its Affiliates covenants that Grantee and its Affiliates shall not bring or support, directly or indirectly, any suit, claim, or proceeding (judicial or administrative) challenging any term of this Agreement or contending that Franchising Authority or Grantee did not have the authority to impose or agree to such terms. 12.16 Reserved Rights. Franchising Authority reserves all rights and powers under (i) its police powers and (ii) powers conferred by Federal, State or local law of which Franchising Authority may not legally and contractually divest itself. In particular, Franchising Authority reserves the right to alter, amend or repeal its municipal code as it determines shall be conducive to the health, safety and welfare of the public, or otherwise in the public interest; provided that any such alteration, amendment or repeal shall be applicable to all similarly situated franchisees of the City, in such a manner and to such an extent so as not to place Grantee at a material competitive disadvantage. Franchising Authority agrees that by accepting this Agreement, Grantee has not waived its right to object to the application to it of actions by Franchising Authority pursuant to its reserved rights or police powers. 12.17 Representation Regarding Ethical Standards for Franchising Authority Officers and Employees and Former Franchising Authority Officers and Employees. Grantee represents that to the best of its knowledge, it has not (1) provided an illegal gift or payoff to a Franchising Authority officer or employee or former Franchising Authority officer or employee, or his or her relative or business entity; (2) retained any person to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, other than bona fide employees or bona fide commercial selling agencies for the purpose of securing business; (3) breached any of the ethical standards set forth in the Franchising Authority's conflict of interest ordinance, Chapter 2.44, Salt Lake City Code; or(4) influenced, and hereby promises that it will not knowingly influence, a Franchising Authority officer or employee or former Franchising Authority officer or employee to breach any of the ethical standards set forth in the Franchising Authority's conflict of interest ordinance, Chapter 2.44, Salt Lake City Code. 12.18 Effective Date. The effective date of this Franchise is the 25`h day of October 2016 pursuant to the provisions of applicable law and which is the date the last party signs this Agreement. This Franchise shall expire on the 25th day of October 2026 unless extended by the mutual agreement of the parties. 28 IN WITNESS WHEREOF, this Franchise Agreement has been executed by the duly authorized representatives of the parties as set forth below, as of the date set forth below: Considered and approved this ( day of A 2017 SALT LAKE CITY CORPORATION B JAC E BISKUPSKI, MA OR test and`C unte '' CITY RE RDER RECORDED By: JAN 1 3 2017 Approved as to form: CITY RECORDER .„-l(CicK -,...:,,:lt-E'c‘:‘i'.,:).-lt:',<,\ Print: F[V11ia.e/*/ G4r`finll,0 a• "1- 1114 ,%; SENIOR CITY ATTORNEY r0' R `':. ' -.--" .. " � �- --�`�.� _ma= t ; ;29 Accepted this —day of Clain 2016, subject to applicable federal, state and local law. Comcast of Utah, II LLC / 1/15//6 By: Matthew Chambers Its: VP'Finance and Accounting 30