HomeMy WebLinkAboutbocc.res.209.2001 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO
RATIFYING THE FCC UNIVERSAL SETTLEMENT AGREEMENT BETWEEN PITKIN
COUNTY AND PUBLIC BROADCASTING OF COLORADO (CPR) AND THE
MEMORANDUM OF UNDERSTANDING BETWEEN PITKIN COUNTY, COLORADO
PUBLIC RADIO, CARBONDALE COMMUNITY ACCESS RADIO (KDNK), AND
ROARING FORK PUBLIC RADIO TRANSLATOR (KAJX)
Resolution 2001
RECITALS
1. Pitkin County has been in negotiations with Colorado Public Radio, KDNK, and KAJX over
the last several years to arrive at a solution that would enable Colorado Public Radio entry
into the Glenwood 170 corridor and maintain KDNK and KAJX radio signals in Aspen and
the Roaring Fork Valley over the Pitkin County Translator System.
2. Pitkin County and Colorado Public Radio have reached a settlement agreement that the FCC
has accepted (attached).
3. Pitkin County, Colorado Public Radio, KDNK, and KAJX have reached a memorandum of
understanding which will accomplish the solution outlined in Recital number 1 (attached).
NOW THEREFORE LET IT BE RESOLVED, the Commissioners of Pitkin County, Colorado
that:
I. Pitkin County ratifies the FCC Universal Settlement Agreement between Pitkin County and
Public Broadcasting Company of Colorado (CPR).
2. Pitkin County ratifies the Memorandum of Understanding between Pitkin County, Colorado
Public Radio, KDNK, and KAJX.
3. The County Manager is authorized to execute all necessary documents to effectuate the
settlement agreement and memorandum of understanding.
APPROV AND ADOPTED ON FIRST READING AT THE MEETING ON THE. �
DAY OF , 2001
;AT: BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY Jones, De ty County Clerk Michael Ireland, Chairperson
Date: /.�-�9 G/ Date:
APPROVED AS TO FORM: MANAGER APPROVAL:
John Ely, '6utItY C ttorne
Y �Hilary Smith, County Manager
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU"or"Agreement") is entered this
18th day of July, 2001, by and among Pitkin County, a Colorado Home Rule County, by
and through its Board of County Commissioners("Pitkin"), Public Broadcasting of
Colorado, Inc., also known as Colorado Public Radio ("CPR"), Carbondale Community
Access Radio, Inc. ("CCAR"), and Roaring Fork Public Radio Translator, Inc.
("RFPRT")(each referred to sometimes as a"Party"and collectively as the "Parties").
WHEREAS, Pitkin is an applicant for a new noncommercial FM station to
operate on 88.9 MHz at Carbondale, Colorado (the "Carbondale Application"), and an
applicant for a new noncommercial FM station to operate on 88.1 MHz Glenwood
Springs, Colorado;
WHEREAS, CPR is an applicant for a new noncommercial FM station to operate
on 88.1 MHz at Glenwood Springs, Colorado (the "Glenwood Springs Application"), and
an applicant for a new noncommercial FM station to operate on 88.9 MHz Glenwood
Springs, Colorado;
WHEREAS, the Pitkin application for 88.1 MHz at Glenwood Springs is
mutually exclusive with the Glenwood Springs Application and the CPR application for
88.9 MHz at Glenwood Springs is mutually exclusive with the Carbondale Application;
WHEREAS, Pitkin and CPR have entered into a Settlement Agreement(the
"Settlement Agreement")dated July 17, 2001, pursuant to which and upon FCC
approval, CPR would dismiss(or not prosecute) its 88.9 MHz application at Glenwood
Springs enabling Pitkin's Carbondale Application to be granted so that a construction
permit on 88.9 MHz may be issued to Pitkin(the"Carbondale Permit'), and pursuant to
which Pitkin agrees to dismiss(or not prosecute) its 88.1 MHz application at Glenwood
Springs and CPR shall settle with other mutually exclusive applicants in order to
facilitate a grant of the Glenwood Springs Application so that a construction permit on
88.1 MHz may be issued to CPR(the "Glenwood Springs Permit");
WHEREAS, CCAR is the licensee of noncommercial FM station KDNK
operating on 90.5 MHz at Carbondale, Colorado;
WHEREAS, RFPRT is the licensee of noncommercial FM station KAJX
operating on 91.5 MHz at Aspen, Colorado;
WHEREAS, Pitkin operates a system of FM translators in various locations in
Colorado including Garfield and Pitkin Counties in the Roaring Fork Valley(the"Pitkin
Translator System");
WHEREAS, Pitkin desires to modify the technical facilities(including operating
power of the Carbondale Application)and to assign the amended Carbondale Permit,
after the Federal Communications Commission("FCC's issues it, to RFPRT;
MEMORANDUM OF UNDERSTANDING—page I
K1 o d..fL%de,w,c:,e(fi.)(s).a.MMI
WHEREAS, CPR and CCAR desire to exchange the FCC authorization, when
issued, for the 88.1 MHz facilities proposed in the Glenwood Springs Application in
exchange for the license for the KDNK facilities on 90.5 MHz;
WHEREAS, Pitkin desires to grant to CCAR and RFPRT certain first priority
rights to rebroadcast KDNK and KAJX on the Pitkin Translator System, and to grant to
CPR certain second priority rights to rebroadcast CPR's classical music format on the
90.5 MHz facility on the Pitkin Translator System;
WHEREAS, CPR, CCAR, and RFPRT desire to form a new entity to construct or
lease and manage a tower facility on Sunlight Peak near Carbondale, Colorado, which
will accommodate the transmitting equipment for the FM stations that will operate on
88.1 MHz, 88.9 MHz, and 90.5 MHz; and
WHEREAS, the Parties desire to set forth their agreement to enter into certain
separate agreements which shall implement their MOU.
NOW, THEREFORE, in consideration of the above premises and of the mutual
covenants and agreements contained herein, the receipt and sufficiency of which
consideration is hereby acknowledged, the Parties, intending to be legally bound, agree as
follows:
1. Settlement Agreement between Pitkin and CPR. Pitkin and CPR agree to
file the Settlement Agreement with the FCC by July 19, 2001, and CPR shall file with the
FCC by July 19, 2001, all other settlement agreements necessary to resolve the mutual
exclusivity with other applicants for the Glenwood Springs Permit.
2. Agreement between Pitkin and RFPRT regarding the Carbondale
Permit. Within thirty(30) days of the date on which the FCC's grant of the Carbondale
Permit to Pitkin becomes a Final Order, Pitkin and RFPRT shall file an application for
FCC consent to the assignment of the unbuilt Carbondale Permit to RFPRT. "Final
Order" means action by the FCC, which action is not reversed, stayed, enjoined, or set
aside, and with respect to which no request for stay, reconsideration, review, rehearing or
notice of appeal is pending, and as to which the time for filing any such request, petition
or notice of appeal, or for review by the FCC on its own motion has expired. By no later
than thirty(30)days following the date the Company identified in Section 7 shall have
finalized arrangements for the site on Sunlight Peak, Pitkin shall prepare and cause to be
filed with the FCC on behalf of the then-permittee an amendment to the Carbondale
Permit to increase the effective radiated power of that proposed station to a maximum of
2 kW on the Sunlight Peak site to the extent such power increase is technically feasible.
3. Agreement between CPR and CCAR regarding the Glenwood Springs
Permit and the KDNK License. CPR and CCAR shall enter an agreement (the
"Exchange Agreement") for the exchange of the Glenwood Springs Permit with KDNK
as modified to authorize operations from Sunlight Peak(the"Modified KDW). Such
MEMORANDUM OF UNDERSTANDING—page 2
M..d..M.d.s ding(fi.W)pd.711W, 1 '
agreement shall include customary terms regarding representations and warranties
common in such agreements for noncommercial radio stations. CPR and CCAR shall
cooperate and coordinate with each other to file applications seeking FCC approval of the
Exchange Agreement at least sixty(60) days prior to the date that construction of the
facilities authorized in the Glenwood Springs Permit is expected to be completed.
Closing on the Exchange Agreement shall be conditioned on completion of construction
of the Glenwood Springs Permit and the Modified KDNK and commencement of their
operations pursuant to program test authority. CPR shall be responsible for the costs
associated with constructing the facilities for the Glenwood Springs Permit and the
Modified KDNK facilities and with preparing, filing and prosecuting any modifications
to the Glenwood Springs Permit and the Modified KDNK application to operate from the
Sunlight Peak site, the assignment applications, and with drafting the Exchange
Agreement.
4. Understanding relating to CPR Programming in the Roaring Fork
Valley. In consideration of the undertakings and commitments of the other Parties, as set
forth herein, including, but not limited to, the additional coverage afforded via the Pitkin
Translator System, CPR agrees to limit its programming to a classical music format only,
which includes information about classical performers and performances, and CPR will
not cross-promote its news channel services, or air any other news or any National Public
Radio programs, on its 90.5 MHz facility, or through the Pitkin Translator System
serving the Roaring Fork Valley of Colorado, or through other over-the-air transmission
means that serve the Roaring Fork Valley, except that news may be broadcast for no
greater than six(6) minutes per hour averaged over a twenty-four hour day(hereinafter
"CPR's 90.5 Programming Service").
5. Agreement among Pitkin, CCAR,and RFPRT regarding Rebroadcasts.
Pitkin, CCAR and RFPRT hereby agree to negotiate a separate agreement (the
"Rebroadcast Agreement")whereby Pitkin will grant CCAR and RFPRT first priority for
rebroadcast rights on the Pitkin Translator System the signals of the Carbondale Permit
and the Glenwood Springs Permit. The Rebroadcast Agreement will be effective on or
about the date that those stations commence operations under program test authority.
Pitkin will endeavor,to the extent technically feasible, to carry the CCAR and RFPRT
signals on co-channel or on channels first through third adjacent to 88.1 MHz and 88.9
MHz, respectively. Should Pitkin so request, CCAR and RFPRT will provide
documentation to Pitkin in accordance with Section 325(a) of the Communications Act of
1934, as amended.
6. Agreement between Pitkin and CPR. Pitkin and CPR hereby agree to
negotiate an agreement (the "CPR Rebroadcast Agreement") that will grant CPR a
second priority rebroadcast right on the Pitkin Translator System for CPR's 90.5
Programming Service. The CPR Rebroadcast Agreement will be effective on or about the
date of the consummation of the Exchange Agreement as set forth in Section 3 of this
Agreement. Should Pitkin so request, CPR will provide documentation to Pitkin in
accordance with Section 325(a) of the Communications Act of 1934, as amended.
MEMORANDUM OF UNDERSTANDING—Page 3
M---d...fU d.Wdi.S(f.W)(z).d.7/1"1 h
7. Agreement for Sunlight Peak Transmitter Site among CPR, CCAR and
RFPRT. CPR, CCAR and RFPRT hereby agree to form a business entity that is
mutually agreed to by the CPR, CCAR and RFPRT(hereinafter referred to as the
"Company") and to enter into an Operating Agreement for the purpose of acquiring,
either by purchase or lease, and managing a site on Sunlight Peak to accommodate a
tower and transmitting equipment for the Carbondale Permit, the Glenwood Springs
Permit, and the Modified KDNK after it has been assigned from CCAR to CPR. CPR,
CCAR and RFPRT shall each hold one-third of the ownership of the Company. CPR
shall be responsible for the costs of filing any necessary applications relating to
relocation of the Modified KDNK and the Glenwood Springs Permit and the common
costs of building the facility for use by all three stations, such as the site acquisition,
tower, building, environmental impact study, and common antenna, as well as its own
costs specifically related to operating its station. Incremental costs specific to CCAR's or
RFPRT's stations not covered by the common facilities shall be the responsibility of
CCAR or RFPRT, as applicable. Estimates of common costs and incremental costs are
set forth in Exhibit A. Other costs set forth in Exhibit A shall be the responsibility of the
entity incurring it. CPR shall be responsible for drafting and submitting any grant
applications with NTIA or other funding sources, in consultation with CCAR and
RFPRT. CPR shall have caused to be prepared the Modified KDNK application no later
than thirty(30) days following the date on which the Company shall have finalized
arrangements for the site on Sunlight Peak. CPR, CCAR and RFPRT shall use their
commercially reasonable efforts to complete site construction of, or lease suitable
property and install equipment on, the Sunlight Peak transmitter site within one(I)year
after the date the grant of the Carbondale Permit or the Glenwood Springs Permit
becomes a Final Order, whichever occurs first;provided, however, that the parties
acknowledge that completion of construction and/or installation may be delayed for
reasons beyond the control of CPR, CCAR or RFPRT, such as, but not limited to,
weather, citizens' actions, the time required for the FCC to grant any necessary
modification applications, the time required for third parties to complete the
Environmental Impact Study, or force majeure. In no event shall construction and/or
installation be delayed beyond three(3)years after the date of issuance of either the
Carbondale Permit or the Glenwood Springs Permit, whichever occurs first;provided,
however, that if it reasonably appears that completion of construction and/or installation
may not be completed within the three-year period, CPR, CCAR, and RFPRT will use
their best efforts to secure an alternate common site for temporary or, if mutually
agreeable, permanent operations in accordance with the terms and conditions set forth in
this paragraph 7.
8. Publicity. No Party shall without the prior approval of the other Parties issue
any press release or other public announcement concerning the transactions contemplated
by this Agreement except to the extent that a Party shall be so obligated by law, in which
case the other Parties shall be so advised and the Parties shall use their best efforts to
cause a mutually agreeable release or announcement to be issued. Nothing in this Section
shall be construed as qualifying a Party's obligations to make such filings as may be
required by a governmental agency.
MEMORANDUM OF UNDERSTANDING—Page 4
N1---d--fUndmtan n(BW)(2)dm Y/Mi
9. Time of the Essence. Time is of the essence in the performance of each and
every provision of this Agreement and in any action brought to enforce the performance
hereof.
10. Best Efforts. Except as otherwise specifically provided herein, each of the
Parties will use its commercially reasonable best efforts to take all action and to do all
things necessary, proper, or advisable to consummate and make effective the transactions
contemplated by this Agreement, and to prosecute diligently and expeditiously all FCC
applications and requests for approval to the highest level of appeal at the FCC. In the
event that any requirement for FCC approval contained in this MOU is not granted, the
Parties agree to negotiate in good faith to modify this MOU, or the agreements to be
entered pursuant hereto, as applicable, to the minimum extent necessary in order to
achieve the intentions of the Parties.
11. Entire Agreement. This Agreement is the sole and entire agreement between
the parties with respect to the matters set forth herein. This Agreement shall not be
altered or amended except in a writing signed by the Parties whose rights and obligations
are affected.
12. Severability. If any provision of this Agreement is held to be prohibited by
or invalid under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating or otherwise affecting the remainder
of such provision or the remaining provisions of this Agreement.
13. Binding on Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties. Notwithstanding the foregoing, no Party may
assign its rights or delegate its duties under this Agreement without the prior written
consent of the other Parties, such consent not to be unreasonably withheld.
14. Rights and Remedies. In the event of a material breach by a Party of its
obligations under this Agreement, the non-breaching Party(ies) shall have all rights
available to it at law or in equity. Each Party agrees that the rights granted to another
Party under this Agreement are unique and that it may not be fully compensated by
monetary damages in the event of a material breach by such Party. Therefore, each Party
agrees that the other Parties shall be entitled to seek specific performance of their rights
under this Agreement in the event of a material breach or threatened material breach or
non-performance by another Party. The Party seeking equitable relief to enforce its rights
under this Agreement shall not be required to post bond or provide other security as a
condition to seeking such relief. The prevailing Party in any litigation under this
Agreement shall be entitled to recover its reasonable legal costs incurred in enforcing its
rights.
15. Termination. This Agreement may not be terminated except with the mutual
consent of the Parties,provided that if a Party is in material breach of its obligations
under this Agreement, it shall not have the right to terminate this Agreement. In the
event of a material breach by a Party,the non-breaching Party shall be entitled to
MEMORANDUM OF UNDERSTANDING—page 5
M=Mndum 0fUndMW,di%(rhaJ)(z).dM 7AW]
terminate this Agreement in the event the breaching party has failed to cure its default
within twenty(20) days of written notice thereof by the non-breaching Party.
16. Costs and Expenses. Except as otherwise provided herein,each party shall
be responsible for paying its own costs and expenses incurred with respect to this
Agreement.
17. Facsimile and Counterpart Signatures. This Agreement shall be effective
on
and legally binding if signed in counterparts with the same effect as if the signature c
each counterpart were upon the same instrument. This Agree ct a shall si effective and
legally binding upon delivery of facsimile signatures.
18. Governing Law. The laws of the State of Colorado shall govern the validity,
Performance and enforcement of this Agreement without regard to its conflict of laws
rules.
19.Notices. Except as otherwise provided herein, all notices or other documents
which are required or contemplated by this Agreement shall be in writing, and shall be
either: (1)Personally served upon the opposing Parties, effective as of the date of such
personal service; (ii)mailed, postage prepaid, by certified or registered mail, return
receipt requested, effective as of the date of receipt;or(in)sent by overnight courier
service, effective as of the day after the date of delivery to such courier service; and sent
to the following:
Pitkin:
Mr. Stan Berryman
Director of Special Projects
Pitkin County
530 East Main Street
Aspen, CO 81611
(970) 290-5198 (Facsimile)
with a copy(which shall not constitute notice)to:
Henry A. Solomon,Esq.
Garvey, Schubert& Barer
1000 Potomac Street,N.W.
Fifth Floor
Washington,DC 20007
(202) 965-1729 (Facsimile)
MEMORANDDM OF UNDERSTANDING—page 6
odum (W(ZYdM M&DI 5
CPR:
Ms. Jenny L. Gentry
Vice President,Finance&Administration
Colorado Public Radio
2249 South Josephine Street
Denver,Colorado 80210
(303) 733-3319(Facsimile)
With a COPY(which shall not constitute notice) to:
William K. Keane, Esq.
Arter&Hadden LLP
1801 K Street, NW, Suite 400K
Washington, DC 20006
(202) 857-0172 (Facsimile)
CCAR:
Ms. Mary Suma
General Manager
Radio Station KDNK
Carbondale Community Access Radio, Inc.
Box 1388
76 S. Second Street
Carbondale, CO 81623
(970) 963-0810(Facsimile)
with a copy(which shall not constitute notice)to:
John Crigler, Esq.
Garvey, Schubert & Barer
1000 Potomac Street,N.W.
Fifth Floor
Washington,DC 20007
(202) 965-1729 (Facsimile)
RFPRT:
Mr. Tom Eirman
Executive Director
Roaring Fork Public Radio
110 E. Hallam Street
Suite 134
Aspen, CA 81611
(970) 544-8002 (Facsimile)
MEMORANDUM of UNDERSTMI)ING—page 7
Of s(&WOMammaoI q
l
with a copy(which shall not constitute notice)to:
John Crigler, Esq.
Garvey, Schubert & Barer
1000 Potomac Street, N.W.
Fifth Floor
Washington, DC 20007
(202) 965-1729(Facsimile)
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representative as of the date first written above.
PI7K N COUNTY PUBLIC BROADCASTING OF COL ORADO, INC.
By / By
Title: Title:
CARBONDALE COMMUNITY ACCESS RADIO, ROARING FORK PUBLIC RADIO
INC. TRANSLATOR, INC.
By--r�� r� B
Title: V'12¢„arP3rae,. Title: l'irf�
MEMORANDUM OF UNDERSTANDING—page$
d..FU.d .rmma(mm)M.a.MMI
/6
Exhibit A
Cost Aereement
All costs are approximate and based on information known as of the date of the MOU.
Common Costs:
Tower $ 60,000 - $100,000
Building $ 50,000 - $ 75,000
Environmental Impact Study $ 50,000- $100,000
Antenna $ 40,000 - $ 60,000
Common Costs Totals: $200,000 - $335,000
Incremental Costs:
Antenna, Larger Building, Tower $50,000 - $ 60,000 total
Other Coats:
Legal $10,000 - $20,000
Engineering Labor $35,000 - $50,000
Microwave/Boosters $30,000 - $40,000
Marketing/PR
MEMORANDUM OF UNDERSTANDING—page 9
n-W-d..fU.Wattmdms(fiu1(2).d.711wi /
#%0NTRACT#0 z0(
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU"or"Agreement")is entered this
18th day of July, 2001, by and among Pitkin County, a Colorado Home Rule County,by
and through its Board of County Commissioners("Pitkin"), Public Broadcasting of
Colorado, Inc., also known as Colorado Public Radio ("CPR"), Carbondale Community
Access Radio,Inc. ("CCAW), and Roaring Fork Public Radio Translator, Inc.
("RFI'RT")(each referred to sometimes as a"Party"and collectively as the "Parties").
WHEREAS,Pitkin is an applicant for a new noncommercial FM station to
operate on 88.9 MHz at Carbondale, Colorado (the"Carbondale Application"), and an
applicant for a new noncommercial FM station to operate on 88.1 MHz Glenwood
Springs, Colorado;
WHEREAS, CPR is an applicant for a new noncommercial FM station to operate
on 88.1 MHz at Glenwood Springs, Colorado (the "Glenwood Springs Application"), and
an applicant for a new noncommercial FM station to operate on 889 MHz Glenwood
Springs, Colorado;
WHEREAS,the Pitkin application for 88.1 MHz at Glenwood Springs is
mutually exclusive with the Glenwood Springs Application and the CPR application for
88.9 Nfflz at Glenwood Springs is mutually exclusive with the Carbondale Application;
WHEREAS,Pitkin and CPR have entered into a Settlement Agreement(the
"Settlement Agreement")dated July 17, 2001, pursuant to which and upon FCC
approval,CPR would dismiss(or not prosecute) its 88.9 MHz application at Glenwood
Springs enabling Pitkin's Carbondale Application to be granted so that a construction
permit on 88.9 MHz may be issued to Pitkin(the"Carbondale Permit'), and pursuant to
which Pitkin agrees to dismiss(or not prosecute) its 88.1 MHz application at Glenwood
Springs and CPR shall settle with other mutually exclusive applicants in order to
facilitate a grant of the Glenwood Springs Application so that a construction permit on
88.1 MHz may be issued to CPR (the"Glenwood Springs Permit");
WHEREAS, CCAR is the licensee of noncommercial FM station KDNK
operating on 90.5 MHz at Carbondale, Colorado;
d
WHEREAS,RFPRT is the licensee of noncommercial FM station KAJX
operating on 91.5 MHz at Aspen, Colorado;
WHEREAS,Pitkin operates a system of FM translators in various locations in
Colorado including Garfield and Pitkin Counties in the Roaring Fork Valley(the"Pitkin
Translator System");
WHEREAS,Pitkin desires to modify the technical facilities(including operating
power of the Carbondale Application)and to assign the amended Carbondale Permit,
after the Federal Communications Commission("FCC's issues it,to RFPRT;
MEMORANDUM OF UNDERSTANDING--POLge I
Mernomdn of[Md�(final)(2).doc 711MI 'h
WHEREAS,CPR and CCAR desire to exchange the FCC authorization,when
issued,for the 88.1 MHz facilities proposed in the Glenwood Springs Application in
exchange for the license for the KDNK facilities on 90.5 MHz;
WHEREAS, Pitkin desires to grant to CCAR and RFPRT certain first priority
rights to rebroadcast KDNK and KAJX on the Pitkin Translator System,and to grant to
CPR certain second priority rights to rebroadcast CPR's classical music format on the
90.5 MHz facility on the Pitkin Translator System;
WHEREAS, CPR, CCAR, and RFPRT desire to form a new entity to construct or
lease and manage a tower facility on Sunlight Peak near Carbondale, Colorado,which
will accommodate the transmitting equipment for the FM stations that will operate on
88.1 MHz, 88.9 MHz,and 90.5 MHz; and
WHEREAS,the Parties desire to set forth their agreement to enter into certain
separate agreements which shall implement their MOU.
NOW, THEREFORE, in consideration of the above premises and of the mutual
covenants and agreements contained herein, the receipt and sufficiency of which
consideration is hereby acknowledged,the Parties, intending to be Iegally bound,agree as
follows:
1. Settlement Agreement between Pitkin and CPR Pitkin and CPR agree to
file the Settlement Agreement with the FCC by July 19,2001,and CPR shall file with the
FCC by July 19,2001, all other settlement agreements necessary to resolve the mutual
exclusivity with other applicants for the Glenwood Springs Permit.
2. Agreement between Pitkin and RFPRT regarding the Carbondale
Permit. Within thirty(30)days of the date on which the FCC's grant of the Carbondale
Permit to Pitkin becomes a Final Order,Pitkin and RFPRT shall file an application for
FCC consent to the assignment of the unbuilt Carbondale Permit to RFPRT. "Final
Order"means action by the FCC,which action is not reversed, stayed,enjoined,or set
aside,and with respect to which no request for stay,reconsideration,review,rehearing or
notice of appeal is pending,and as to which the time for filing any such request,petition
or notice of appeal, or for review by the FCC on its own motion has expired. By no later
than thirty(30)days following the date the Company identified in Section 7 shall have
finalized arrangements for the site on Sunlight Peak,Pitkin shall prepare and cause to be
filed with the FCC on behalf of the then-permittee an amendment to the Carbondale
Permit to increase the effective radiated power of that proposed station to a maximum of
2 kW on the Sunlight Peak site to the extent such power increase is technically feasible.
3. Agreement between CPR and CCAR regarding the Glenwood Springs
Permit and the KDNK License. CPR and CCAR shall enter an agreement(the
"Exchange Agreement") for the exchange of the Glenwood Springs Permit with KDNK
as modified to authorize operations from Sunlight Peak(the"Modified KDW). Such
MEMORANDUM OF UNDERSTANDING—page 2 r
Mawm,&uiofUndwsWndm&(rm t)(a).aoe VIM 1'JII
agreement shall include customary terms regarding representations and warranties
common in such agreements for noncommercial radio stations. CPR and CCAR shall
cooperate and coordinate with each other to file applications seeking FCC approval of the
Exchange Agreement at least sixty(60)days prior to the date that construction of the
facilities authorized in the Glenwood Springs Permit is expected to be completed.
Closing on the Exchange Agreement shall be conditioned on completion of construction
of the Glenwood Springs Permit and the Modified KDNK and commencement of their
operations pursuant to program test authority. CPR shall be responsible for the costs
associated with constructing the facilities for the Glenwood Springs Permit and the
Modified KDNK facilities and with preparing, filing and prosecuting any modifications
to the Glenwood Springs Permit and the Modified KDNK application to operate from the
Sunlight Peak site, the assignment applications, and with drafting the Exchange
Agreement.
4. Understanding relating to CPR Programming in the Roaring Fork
Valley. In consideration of the undertakings and commitments of the other Parties, as set
forth herein, including,but not limited to,the additional coverage afforded via the Pitkin
Translator System, CPR agrees to limit its programming to a classical music format only,
which includes information about classical performers and performances,and CPR will
not cross-promote its news channel services, or air any other news or any National Public
Radio programs,on its 90.5 MHz facility,or through the Pitkin Translator System
serving the Roaring Fork Valley of Colorado, or through other over-the-air transmission
means that serve the Roaring Fork Valley,except that news may be broadcast for no
greater than six(6)minutes per hour averaged over a twenty-four hour day(hereinafter
"CPR's 90.5 Programming Service").
5. Agreement among Pitkin,CCAR,and RFPRT regarding Rebroadcasts.
Pitkin, CCAR and RFPRT hereby agree to negotiate a separate agreement(the
"Rebroadcast Agreement")whereby Piddn will grant CCAR and RFPRT first priority for
rebroadcast rights on the Pitkin Translator System the signals of the Carbondale Permit
and the Glenwood Springs Permit. The Rebroadcast Agreement will be effective on or
about the date that those stations commence operations under program test authority.
PAkin will endeavor,to the extent technically feasible,to carry the CCAR and RFPRT
signals on co-channel or on channels first through third adjacent to 88.1 MHz and 88.9
MHz,respectively. Should Pitkin so request, CCAR and RFPRT will provide
documentation to Pitkin in accordance with Section 325(a)of the Communications Act of
1934, as amended.
6. Agreement between Pitkin and CPR. Pitkin and CPR hereby agree to
negotiate an agreement (the"CPR Rebroadcast Agreement") that will grant CPR a
second priority rebroadcast right on the Pitkin Translator System for CPR's 90.5
Programming Service. The CPR Rebroadcast Agreement will be effective on or about the
date of the consummation of the Exchange Agreement as set forth in Section 3 of this
Agreement. Should Pitkin so request, CPR will provide documentation to Pitkin in
accordance with Section 325(a)of the Communications Act of 1934, as amended.
WmoRANDum of UNDFRSTANDING-page 3 hl
arunanVvua (fiW)(z)as 711WO1
7. Agreement for Sunlight Peak Transmitter Site among CPR,CCAR and
RFPRT. CPR,CCAR and RFPRT hereby agree to form a business entity that is
mutually agreed to by the CPR,CCAR and RFPRT(hereinafter referred to as the
"Company")and to enter into an Operating Agreement for the purpose of acquiring,
either by purchase or lease, and managing a site on Sunlight Peak to accommodate a
tower and transmitting equipment for the Carbondale Permit,the Glenwood Springs
Permit,and the Modified KDNK after it has been assigned from CCAR to CPR CPR,
CCAR and RFPRT shall each hold one-third of the ownership of the Company. CPR
shall be responsible for the costs of filing any necessary applications relating to
relocation of the Modified KDNK and the Glenwood Springs Permit and the common
costs of building the facility for use by all three stations, such as the site acquisition,
tower, building, environmental impact study, and common antenna, as well as its own
costs specifically related to operating its station. Incremental costs specific to CCAR's or
RFPRT's stations not covered by the common facilities shall be the responsibility of
CCAR or RFPRT,as applicable. Estimates of common costs and incremental costs are
set forth in Exhibit A. Other costs set forth in Exhibit A shall be the responsibility of the
entity incurring it. CPR shall be responsible for drafting and submitting any grant
applications with NTIA or other funding sources, in consultation with CCAR and
RFPRT. CPR shall have caused to be prepared the Modified KDNK application no later
than thirty(30)days following the date on which the Company shall have finalized
arrangements for the site on Sunlight Peak. CPR, CCAR and RFPRT shall use their
commercially reasonable efforts to complete site construction of, or lease suitable
property and install equipment on, the Sunlight Peak transmitter site within one(1)year
after the date the grant of the Carbondale Permit or the Glenwood Springs Permit
becomes a Final Order,whichever occurs first;provided, however,that the parties
acknowledge that completion of construction and/or installation may be delayed for
reasons beyond the control of CPR,CCAR or RFPRT, such as,but not limited to,
weather,citizens' actions,the time required for the FCC to grant any necessary
modification applications,the time required for third parties to complete the
Environmental Impact Study,or force majeure. In no event shall construction and/or
installation be delayed beyond three(3)years after the date of issuance of either the
Carbondale Permit or the Glenwood Springs Permit,whichever occurs first;provided,
however,that if it reasonably appears that completion of construction and/or installation
may not be completed within the three-year period, CPR, CCAR,and RFPRT will use
their best efforts to secure an alternate common site for temporary or, if mutually
agreeable,permanent operations in accordance with the terms and conditions set forth in
this paragraph 7.
8. Publicity.No Party shall without the prior approval of the other Parties issue
any press release or other public announcement concerning the transactions contemplated
by this Agreement except to the extent that a Party shall be so obligated by law, in which
case the other Parties shall be so advised and the Parties shall use their best efforts to
cause a mutually agreeable release or announcement to be issued. Nothing in this Section
shall be construed as qualifying a Party's obligations to make such filings as may be
required by a governmental agency.
MEMORANDUM OF UNDERSTANDING-page 4
nftmcr=dum*fW (&W)(2)a«msros
9. Time of the Essence. Time is of the essence in the performance of each and
every provision of this Agreement and in any action brought to enforce the performance
hereof,
10. Best Efforts. Except as otherwise specifically provided herein,each of the
Parties will use its commercially reasonable best efforts to take all action and to do all
things necessary, proper, or advisable to consummate and make effective the transactions
contemplated by this Agreement, and to prosecute diligently and expeditiously all FCC
applications and requests for approval to the highest level of appeal at the FCC. In the
event that any requirement for FCC approval contained in this MOU is not granted,the
Parties agree to negotiate in good faith to modify this MOU, or the agreements to be
entered pursuant hereto, as applicable,to the minimum extent necessary in order to
achieve the intentions of the Parties.
11.Entire Agreement. This Agreement is the sole and entire agreement between
the parties with respect to the matters set forth herein. This Agreement shall not be
altered or amended except in a writing signed by the Parties whose rights and obligations
are affected.
12. Severability. If any provision of this Agreement is held to be prohibited by
or invalid under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating or otherwise affecting the remainder
of such provision or the remaining provisions of this Agreement.
13. Binding on Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties. Notwithstanding the foregoing, no Party may
assign its rights or delegate its duties under this Agreement without the prior written
consent of the other Parties, such consent not to be unreasonably withheld.
14. Rights and Remedies. In the event of a material breach by a Party of its
obligations under this Agreement, the non-breaching Party(ies) shall have all rights
available to it at law or in equity. Each Party agrees that the rights granted to another
Party under this Agreement are unique and that it may not be fully compensated by
monetary damages in the event of a material breach by such Party. Therefore, each Party
agrees that the other Parties shall be entitled to seek specific performance of their rights
under this Agreement in the event of a material breach or threatened material breach or
non-performance by another Party. The Party seeking equitable relief to enforce its rights
under this Agreement shall not be required to post bond or provide other security as a
condition to seeking such relief. The prevailing Party in any litigation under this
Agreement shall be entitled to recover its reasonable legal costs incurred in enforcing its
rights.
15. Termination. This Agreement may not be terminated except with the mutual
consent of the Parties,provided that if a Party is in material breach of its obligations
under this Agreement, it shall not have the right to terminate this Agreement. In the
event of a material breach by a Party,the non-breaching Party shall be entitled to
MEMORANDUM OF UNDERSTANDING-page 5
MMOTWdumotUndMtwxJ,.g(&,4(2).dM 7/1aro1
terminate this Agreement in the event the breaching Party has failed to cure its default
within twenty(20) days of written notice thereof by the non-breaching Party.
16. Costs and Expenses. Except as otherwise provided herein,each Party shall
be responsible for paying its own costs and expenses incurred with respect to this
Agreement.
17. Facsimile and Counterpart Signatures. This
and:legally bind' if Agreement shad be effective
mg signed in counterparts with the same effect as if the signature on
each counterpart were upon the same instrument. This Agreement shall be effective and
legally binding upon delivery of facsimile signatures.
18. Governing Law. The laws of the State of Colorado shall govern the validity,
performance and enforcement of this Agreement without regard to its conflict of laws
rules.
19.Notices. Except as otherwise provided herein,all notices or other documents
which are required or contemplated by this Agreement shall be in writing, and shall be
either. (i)personally served upon the opposing Parties, effective as of the date of such
Personal service; (ii)mailed, postage prepaid, by certified or registered mail, return
receipt requested, effective as of the date of receipt;or(iii)sent by overnight courier
service, effective as of the day after the date of delivery to such courier service; and sent
to the:following:
Min:
Mr. Stan Berryman
Director of Special Projects
Pitkin County
530 East Main Street
Aspen, CO 81611
(970)290-5198 (Facsimile)
with a copy(which shalt not constitute notice)to:
Henry A. Solomon,Esq.
Garvey, Schubert& Barer
1000 Potomac Street,N.W.
Fifth Floor
Washington,DC 20007
(202)965-1729 (Facsimile)
MEMORANDUM OF UNDERSTANDING-page 6
n+anoaadumofUodeurbdaWMnst)C11.eoe 7118MI
CPR:
Ms.Jenny L.Gentry
Vice President,Finance&Admiration
Colorado Public Radio
2249 South Josephine Street
Denver,Colorado 80210
(303) 733-3319(Facsimile)
with a copy(which shall not constitute notice) to:
William K. Keane, Esq.
Arter&Hadden LLP
1801 K Street, NW, Suite 400K
Washington, DC 20006
(202) 857-0172 (Facsimile)
CCAR:
Ms. Mary Suma
General Manager
Radio Station KDNK
Carbondale Community Access Radio, Inc.
Box 1388
76 S. Second Street
Carbondale, CO 81623
(970) 963-0810(Facsimile)
with a copy(which shall not constitute notice)to:
John Crigler, Esq.
Garvey, Schubert & Barer
1000 Potomac Street,N.W.
Fifth Floor
Washington,DC 20007
(202) 965-1729 (Facsimile)
RFPRT:
Mr. Tom Eirman
Executive Director
Roaring Fork Public Radio
110 E. Hallam Street
Suite 134
Aspen, CA 81611
(970) 544-8002 (Facsimile)
MEMORANDUM of UNDERSTANDING—page 7
with a copy(which shall not constitute notice)to:
John Crigler, Esq.
Garvey, Schubert&Barer
1000 Potomac Street, N.W.
Fifth Floor
Washington, DC 20007
(202) 965-1729(Facsimile)
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representative as of the date first written above.
PTTKIN COUNTY PUBLIC BROADCASTING OF COLORADO,INC.
By—�� / By
Title: Title: �-
CARBONDALE COMMUNTIY ACCESS RADIO, ROARING FORK PUBLIC RADIO
INC. TRANSLATOR,INC.
By_ �s g
Title: VCR 3( per Title:
MEMORANDUM OF UNDERSTANDING—page S
ManorandrrnotL%daslendong(&mt)(Z)Am 7AMI /(
Exhibit A
Cast Agreement
All costs are approximate and based on information known as of the date of the MOU.
Common Costs:
Tower $ 60,000 - $100,000
Building $ 50,000 - $ 75,000
Environmental Impact Study $ 50,000- $100,000
Antenna $ 40,000 - $ 60,000
Common Costs Totals: $200,000 - $335,000
Incremental Costs:
Antenna, larger Building, Tower $50,000 - $ 60,000 total
Other Costs:
Legal $10,000 -$20,000
Engineering Labor $35,000- $50,000
Microwave/Boosters $30,000- $40,000
Marketing/PR
MEMORANDUM OF UNDERSTANDING—page 9
PM1m�massmof[kdaumdmg(&yD(2).doo 7/1W / t
Ir/
ARTER& HADDENLLP STAMP RETURN
ATTORNEYS AT LAW
o
fowulcd 18M San Diego
Columbus San Francisco
Dallas 1801 K Street,N.W.,Suite 400K Washington.D.C.
Dayton Washington,A.C.20006-1304
Woodland Hills
To ne rrlephone 202.775.710(1 Affiliate Office
Los Angeles Geneva,Switzerland
facsimile 202.857.0172
Jodi M.Krame
Direct Dial_ (202)775-7992
Email: jkmmeCarterhadden.corn
July 18, 2001 ( �
Via hand 7Delivea JUL 8 ZQ��
Ms. Magaiie Roman Salas eW
Secretary
Federal Communications Commission
The Portals, TW-A325
445 Twelfth Street, SW
Washington,D.C. 20554
Re: Universal Settlement of MX Group 970940
BPED-19970924MH
BPED-19980812MI
BPED-19980813MD
BPED-19980814MH
Dear Ms. Salas:
Submitted herewith are the original and four copies of a Joint Request for Approval of
Universal Settlement in MX Group 970940. We are submitting this request on behalf of all
settling parties.
Please address any questions to Ken Keane of this firm at (202) 775-7123 or to
undersigned counsel.
Very truly yours,
69odi M. Krame
Enclosures
cc (w/encls.): Mr. Edward DeLaHunt(Mass Media Bureau)
Ms.Jenny Gentry(Public Broadcasting of Colorado, Inc.)
Jerrold D. Miller, Esq. (Counsel to Aspen Public Radio, Inc.)
Lee J. Peltzman, Esq. (Counsel to Educational Communications of Colorado
Springs,Inc.
Henry A. Solomon, Esq. (Counsel to Pitkin County)
Before the
Federal Communications Commission
Washington, D.C. 20554
In re Applications of )
Public Broadcasting of Colorado,Inc. }
BPED-19970924MH
For Construction Permit for a New )
Noncommercial FM Station on Channel )
201 (88.1 MHz) at Glenwood Springs, Colorado
)
Aspen Public Radio, Inc.
) BPED-199$0812MI
For Construction Permit for a New
Noncommercial FM Station on Channel }
201 (88.1 MHz) at Aspen, Colorado )
Educational Communications of Colorado BPED-19980$13MD
Springs,Inc.
For Construction Permit for a New )
Noncommercial FM Station on Channel )
201 (88.1 MHz) at New Castle, Colorado }
Pitkin County )
BPED-19980814MH
)
For Construction Permit for a New )
Noncommercial FM Station on Channel )
201 (88.1 MHz) at Glenwood Springs, Colorado )
To: Chief, Mass Media Bureau
JOINT REQUEST FOR APPROVAL OF UNIVERSAL SETTLEMENT
IN MX GROUP 970940
Public Broadcasting of Colorado, Inc. (also known as Colorado Public Radio or "CPR"),
Aspen Public Radio, Inc. ("APR' ), Educational Communications of Colorado Springs, Inc.
("ECCS") and Pitkin County ("Pitkin") (CPR,APR., ECCS and Pitkin are also referred to herein
as the "Parties"), by their counsel and pursuant to Section 311(c)(2) of the Communications Act
of 1934, as amended, and Section 73.3525 of the Commission's Rules, hereby request the
Commission to (i) grant this "Joint Request for Approval of Universal Settlement in MX Group
970940," (ii) approve the attached Settlement Agreements (hereinafter referred to as the
"Settlement Agreements") between CPR and each of the other three Parties, (iii) grant the
above-captioned application of CPR, and (iv) dismiss the above-captioned applications of APR,
ECCS and Pitkin. In support of this request, the fallowing is shown.
1. The Parties are mutually exclusive applicants in MX Group 970940, in which
each of them seeks a construction permit for a new noncommercial educational FM station on
Channel 201 (88.1 MHz). In order to achieve a universal settlement on Channel 201, the parties
have entered into the Settlement Agreements.
2. The attached Settlement Agreement between CPR and APR calls for APR to
dismiss its application in exchange for a payment from CPR in the amount of $12,000. See
Exhibit 1.
3. The attached Settlement Agreement between CPR and ECCS calls for ECCS to
dismiss its application.' See Exhibit 2.
4. The attached Settlement Agreement between CPR and Pitkin calls for Pitkin to
dismiss its application. See Exhibit 3.
' It is to be noted that the Settlement Agreement between CPR and ECCS also contemplates undertakings
involving another group of mutually exclusive applications filed by CPR and 1 CCS for Channel 203 at
Durango and Trimble, Colorado, constituting MX Group 970936. CPR and ECCS have agreed to a universal
settlement in MX Group 970936, and a separate joint request for approval will be submitted by July 19,2001,
calling for CPR to dismiss its Channel 203 application for Durango, thereby facilitating a grant of ECCS'
Trimble application. The dismissal of the ECCS Application that is the subject of the instant Joint Request is
not contingent upon a grant of the Joint Request in MX Group 970936. Similarly,a universal settlement of MX
Group 970936 is not contingent on the settlement of MX Group 970940,
It is to be noted that the Settlement Agreement between CPR and Pitkin also contemplates undertakings
involving another group of mutually exclusive applications filed by CPR and Pitkin for Channel 205 at
- 2 -
.......... ... ......... ..........
5. Grant of this Joint Request and approval of the Settlement Agreements will serve
the public interest. It will resolve the mutual-exclusivity between the Parties' respective
applications, thereby conserving the resources of both the Parties and the Commission, and
expedite the inauguration of a new noncommercial broadcast service on Channel 201 (88.1
MHz) at Glenwood Springs, Colorado.
6. The certifications required by Section 73.3525 of the Commission's Rules are set
forth in Section 5 of the attached Settlement Agreements,
7. A grant of CPR's application as a result of this settlement will not thwart the
achievement of a fair, efficient and equitable distribution of radio services. See Section
73.3525(b)(1) of the Commission's Rules. Pursuant to the criteria set forth in Reexamination of
the Comparative Standards for Noncommercial Educational Applicants, Report and Order, 15
FCC Red 7386 (2000), modified FCC 01-64, released February 28, 2001, there is no decisional
difference under the fair distribution of service issue.
8. Exhibit 4 hereto contains a map depicting the applicants' respective coverage
areas and existing noncommercial services on reserved channels. The proposed 60 dBu contours
of ECCS and Pitkin are wholly within CPR's proposed 60 dBu contour. Only APR among the
applicants proposes service to areas not encompassed within CPR's service area (Aspen vs.
CPR's proposal for Glenwood Springs). APR is not eligible for a first service preference. While
both APR and CPR meet the minimum eligibility requirements for combined first and second
Glenwood Springs and Carbondale, Colorado,constituting NIX Group 960904. CPR and Pitkin have agreed to
a universal settlement in MX Group 960904,and a separate joint request for approval was submitted by July 19,
2001, calling for CPR to dismiss its Channel 205 application for Glenwood Springs, thereby facilitating a grant
of Pitkin's Carbondale application. The dismissal of the Pitkin Application that is the subject of the instant
Joint Request is not contingent upon a grant of the Joint Request in MX Group 960904. Similarly, a universal
settlement of NIX Group 9609041s not contingent on the settlement of MX Group 970940. For the sake of
completeness, it is noted that Pitkin and CPR are considering entering into other undertakings dealing with
matters not germane to the instant Settlement Agreements (e.g., CPR carriage on Pitkin translators). The
Settlement Agreements are likewise not contingent upon such other arrangements,
- 3 -
%
service, the population differential is less than 5,000. Thus, APR and CPR are considered to
provide an equivalent service overall and no Section 307(b) preference exists Within this
mutually exclusive group.
9. Wherefore, for the foregoing reasons, CPR, APR, ECCS and Pitkin respectfully
request the Conurnission to grant this Joint Request, dismiss the applications of APR, ECCS and
Pitkin, and grant CPR's application, ,
Respectfully submitted,
ASPEN PUBLIC RADIO, 1NC.
Jerrold D. Miller
Miller&Miller, P.C.
1990 M Street,N.W.
Suite 760
Washington,D.C. 20036
(202) 785-2720
Its Attorney
EDUCATFONAI, COMMUNICATIONS OF
COLORADO SPRINGS, INC.
By:
Lee J. Peltzman
Shainis& Peltzrnan, Chartered
1901 L Street, N.W.
Suite 290
Washington, D.C_ 2003 6-3 5 06
(202)293-0011
Its Attorney
If no applicant receives a f rst service preference the Commission-mill compare the applicants' aggregrate first
and second service population totals. Public Notice,Mass Media Bureau Provides Exmnples of Application of
NCE Section 307(b)Criteria,DA.01-1245, mlewod May 24,200t,at 2„
.................................... .......... —------............................................................................................................ —-------........................ ...........-1-............................---........ .......... ................................
service," the population differential is less than 51000. Thus, APR and CPR arc considered to
provide an equivalent service overall and no Section 307kl)) preference exists within this
mutually exclusive group.
9, Wherefore, for the foregoing reasons, CPR, APR, ECCS and Pitkin respectfully
request the Commission to grant this Joint Request, dismiss the applications of APR, ECCS and
Pitkin, and grant CPR's application.
Respectfully submitted,
ASPEN PUBLIC RADIO, INC.
By:
Jerrold D. Miller
Miller&Miller, P.C.
1990 M Street,N.W.
Suite 760
Washington, D.C. 20036
(202) 785-2720
Its Attorney
E,DUCATIONAL COMMUNICATIONS OF
COLORADO SPRINGS, rNC.
By.
Lee 1, el n
Shainis &Pel an, Chartered
1850 M Street,N.W.
Suite 240
Washington, D.C. 20036-3506
(202)293-0011
Its Attorney
If no applicant receives a first service preference the Commission will compare the appticants' aggrec,r ace first
0 and second service population totals. Publ1c Notice,Mass Media Bureau Provides Examples of Application of
NCE Section 307(b)Criteria,DA 01-1245,released May 24,2001,at2.
-4-
PITKIN COUNTY
By: `
He A. Solomon
'�Q
Garvey, Schubert&Barer
1000 Potomac Street,N.W.
5`h Floor
Washington, D.C. 20007
(202) 298-2529
Its Attorney
PUBLIC BROADCASTING OF COLORADO,
INC.
By:
9
William K. Keane
Jodi IV1. Krame
Arter&Hadden LLP
1801 K Street,N.W.
Suite 400K
Washington, D.C. 20006
(202) 775-7100
Its Attorneys
July� ,2001
295842 i.DQG
- 5 -
EXHIBIT 1
SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT (this"Agreement") is entered into as of this Ir Ly
of July,2001, by and between Public Broadcasting of Colorado,Inc. (also known as Colorado Public
Radio or"CPR') and Aspen Public Radio Inc. ("APR') (each referred to sometimes as a"Party"
and collectively as the "Parties").
PREMISES:
WHEREAS, CPR has pending before the Federal Communications Commission (the
"FCC") an application for a construction permit for a new noncommercial educational FM
broadcast station on Channel 201 at Glenwood Springs, Colorado (File No. SPED-I9970924MH;
Facility ID 88445 (the"CPR Application");
'WHEREAS,APR has pending before the FCC an application for a construction permit for
a new noncommercial educational FM broadcast station on Channel 201 at Aspen, Colorado(FCC
File No. BPED-19980812MI; Facility ID 91395 (the "APR Application");
WHEREAS, the CPR Application and the APR Application, together with an application
by Educational Communications of Colorado Springs, Inc. ("ECCS") (FCC File No. BPED-
19980813NlD; Facility ID 91467(the"ECCS Application"), and an application from Pitkin County
("Pitkin") (FCC File No.BPED-19980814MH; Facility ID 91418 (the"Pitkin Application"), are
mutually exclusive and are listed in MX Group 970940 in Appendix D to the FCC's Memorandum
Opinion and Order in Reexamination of the Comparative Standards for Noncommercial Educational
Applicants in lYIMDocket No. 95-31,FCC 01-64,released February 28, 2001 (the"FCC Order");
WHEREAS, subject to the prior approval of the FCC and pursuant to and in accordance
with the terms of this Agreement, the Parties have entered into this Agreement whereby APR agrees
to dismiss the APR Application and, upon dismissal of the ECCS Application and the Pitkin
Application, the CPR Application will be granted for the consideration and undertakings set forth
herein (the "Consideration"); and
WHEREAS, the Parties agree that resolving the mutual exclusivity between their
applications is in the public interest in that a new noncommercial educational broadcast service will
be inaugurated expeditiously in Glenwood Springs and the surrounding area, and the time and
resources of the Parties and the FCC will be conserved.
NOW THEREFORE, in consideration of the above premises and of the mutual covenants
and agreements contained herein, the receipt and sufficiency of which consideration is hereby
acknowledged,the Parties, intending to be bound legally, agree as follows:
1. Filing of Joint Request for MX Group 970940. Within five business days of the
execution of this Agreement and in any event on or before July 19, 2001, the Parties shall prepare,
execute and file with the FCC a Joint Request For Approval of Universal Settlement (the "Joint
Request") in accordance with Section 73.3525 of the FCC's Rules and the FCC Order, requesting
.................................................... ..................................... ....................... .............-......................................................................... ....................... ....................__...............____...................
that the FCC issue an order (or orders): (i) approving this Agreement, (ii) granting the CPR
Application, (iii) dismissing the APR Application,the ECCS Application and the Pitkin Application,
and (iv) approving the consideration as defined below. The Parties shall diligently prosecute the
Joint Request and promptly file any amendment or other supporting documentation that may be
required or requested by the FCC. The Parties shall not take any action adverse to this Agreement
or the Joint Request, and shall otherwise use good faith efforts to accomplish their respective
obligations under this Agreement.
2. Consideration. As consideration for the agreements of the Parties set forth herein
and in furtherance of the Joint Request,the parties agree as follows: i
(1) APR agrees to request dismissal of the APR Application in order to facilitate a grant
of the CPR Application; and
(h) CPR agrees to pay APR the sum of Twelve Thousand Dollars ($12,000) (the
"-'Consideration")as consideration for dismissal of the APR Application at the Settlement Closing
Date(as defined below). CPR agrees to place the Consideration in Escrow(the"Escrowed Funds")
pursuant to an Escrow Agreement, substantially in the form of Appendix I attached hereto,entered
into between the Parties and the Escrow Agent. CPR shall not be obligated to pay the Consideration
or any portion thereof except as specifically provided in this Agreement.
3. Settlement Closing Date. The Parties agree that the satisfaction of each and every
action specified herein is a condition to the Parties' obligation to close this Agreement (the
"Settlement Closing Date"). The Settlement Closing Date shall be that date on which CPR pays
APR the Consideration. The Settlement Closing Date shall be contingent upon: (i) grant of the CPR
Application shall have become final, and (ii) dismissal of the APR Application, the ECCS
Application and the Pitkin Application, shall have become final (the events referenced in clauses
(i) and (ii) of this sentence are defined as the "Actions"). For purposes of this Agreement, the
Actions shall be deemed"final" when the time within which any party in interest other than the FCC
may seek administrative or judicial reconsideration or review has expired, and no petition for such
reconsideration or review was timely filed with the FCC or with the appropriate court, and the time
within which the FCC may review the action on its own motion has expired and the FCC has not
undertaken such review.
Within five(5)business days after the Actions have become final, the Parties shall instruct
the Escrow Agent to pay the Escrowed Funds to APR by check or wire transfer of immediately
available funds. All interest earned on the Escrowed Funds shall be paid promptly to CPR following
payment of the Consideration to APR- Each Party hereto agrees to execute appropriate notice
documents in accordance with the terms of the Escrow Agreement and deliver them to the Escrow
Agent.
4. Representations and Warranties. As an inducement for the other Party to enter
into this Agreement, each Party represents and warrants to the other that:
(i) it has the full right and legal authority to execute and deliver this Agreement, to
perform its obligations under this Agreement, and to consummate the transactions contemplated
- 2 -
hereunder;
(ii) upon execution, this Agreement shall be legally binding upon it, and enforceable
against it in accordance with its terms;
(iii) it is under no restrictions or limitations (contractual, governmental, or otherwise),
which prevents or precludes it from entering into this Agreement and performing its obligations
hereunder; and
(iv) it will not take any action, or fail to take any required action, which may hinder the
consummation of the transactions contemplated by this Agreement.
5. Compliance with Section 73.7325 of the FCC Rules.
(a) By execution of this Agreement, APR certifies under penalty of perjury that neither
it nor any of its principals has received or been promised any consideration of any nature
whatsoever, directly or indirectly, for the dismissal of the APR Application and the additional.
actions that APR has agreed to take under this Agreement, except as set forth in this Agreement.
This Agreement accurately and completely sets forth the agreements and undertakings of the Parties,
and serves the public interest in that a new noncommercial educational broadcast service will be
inaugurated expeditiously in the Glenwood Springs area, and the time and resources of the Parties
and the FCC will be conserved. The APR Application was not filed for the purpose of entering into
this Agreement.
(b) By execution of this Agreement, CPR certifies under penalty of perjury that neither
it nor any of its principals paid or promised to pay any consideration whatsoever, directly or
indirectly, for the dismissal of the APR Application and the additional actions that APR has agreed
to take under this Agreement, except as set forth in this Agreement. This Agreement accurately and
completely sets forth the agreements and undertakings of the Parties, and serves the public interest
in that a new noncommercial educational broadcast service will be inaugurated expeditiously in the
Glenwood Springs area, and the time and resources of the Parties and the FCC will be conserved.
b. Entire Agreement. This Agreement is the sole and entire agreement between the
parties with respect to the matters set forth herein. This Agreement shall not be altered or amended
except in a writing signed by CPR and APR.
7. Severability. If any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating or otherwise affecting the remainder of such provision
or the remaining provisions of this Agreement.
8. Binding on Successors and Assigns. This Agreement shall be binding on the
successors and assigns of CPR and APR. Notwithstanding the foregoing,neither Party may assign
its rights or delegate its duties under this Agreement without the prior written consent of the other
Party.
- 3 -
9. Rights and Remedies. In the event of a material breach by the other Party of its
obligations under this Agreement,the non-breaching party shall have all rights available to it at law
or in equity. Each Party agrees that the rights granted to the other Party under this Agreement are
unique and that it may not be fully compensated by monetary damages in the event of a material
breach by such Party. Therefore, each Party agrees that the other Party shall be entitled to seek
specific performance of its rights under this Agreement in the event of a material breach or
threatened material breach or non-performance by the other Party, in any such action time being
deemed of the essence. The Party seeking equitable relief to enforce its rights under this Agreement
shall not be required to post bond or provide other security as a condition to seeking such relief. The
prevailing Party in any litigation under this Agreement shall be entitled to recover its reasonable
legal costs incurred in enforcing its rights,
10. Termination. This Agreement may not be terminated except with the mutual
consent of both Parties,provided that if a Party is in material breach of its obligations under this
Agreement,it shall not have the right to terminate this Agreement. In the event of a material breach
by a Party, the non-breaching Party shall be entitled to terminate this Agreement in the event the
breaching Party has failed to cure its default within twenty(20) days of notice thereof by the non-
breaching Party. In the event the FCC denies the Joint Petition or otherwise fails to approve the
relief requested in the Joint Petition and this Agreement, each Party hereto shall have the right to
file its "point supplement" in accordance with the FCC Order and to prosecute its respective
application as it determines is appropriate,provided that if a Party is responsible for such denial or
refusal by the FCC because of a material breach of its obligations under this Agreement, it shall be
deemed to have forfeited its right to file such "point supplement or to further prosecute its
respective application.
11. Costs and Expenses. Except as otherwise provided herein, each Party shall be
responsible for paying its own costs and expenses incurred with respect to: (i) its application; (ii)
the negotiation, execution, and performance of this Agreement; and(iii)the filing and prosecution
of the Joint Request.
12. Notices. Except as otherwise provided herein, all notices or other documents which
are required or contemplated by this Agreement shall be in writing,and shall be either: (i)personally
served upon the opposing Parties, effective as of the date of such personal service; (ii) mailed,
postage prepaid, by certified or registered mail, return receipt requested, effective as of the date of
receipt; or(iii)sent by overnight courier,service, effective as of the day after the date of delivery to
such courier service; and sent to the following:
CPR
Ms. Jenny L. Gentry
Vice President,Finance&Administration
Public Broadcasting of Colorado, Inc.
2249 South Josephine Street
Denver, Colorado 80210
(303) 733.3319 (Facsimile)
-4 -
with a copy (which shall not constitute notice) to:
William.K. Keane, Esq.
Arter&Hadden LLP
1801 K Street,NW, Suite 400K
Washington, DC 20006
(202) 857-0172 (Facsimile)
APR:
William R. Lacy
President
Aspen Public Radio,Inc.
6910 N.W. 2nd Terrace
Boca Raton,Florida 33487
with a copy(which shall not constitute notice)to:
Jerrold D. Miller, Esq.
Miller& Miller,P.C.
1990 M Street,NW, Suite 760
Washington, DC 20036
(202)775-8519 (Facsimile)
13. Facsimile and Counterpart Signatures. This Agreement shall be effective and
legally binding if signed in counterparts with the same effect as if the signature on each counterpart
were upon the same instrument. This Agreement shall be effective and legally binding upon
delivery of facsimile signatures.
14. Governing Law. The laws of the State of Colorado shall govern the validity,
performance and enforcement of this Agreement without regard to its conflict of laws rules.
- 5 -
......................... ...............................................................-------------- ....................................................................... ..............................................................-......................-
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representative as of the date first written above.
Public Broadcasting of Colorado, Inc.
By: 1,
Name: Max W cisk
Title: President
Aspen Public Radio Inc.
By:
Name:
Title:
2982882.DOC
- 6 -
1 - y-✓ �e_� s r_.-i i..._ r1'1. 1'11 L4.GR NrvL 1'11 LL GK �l�.! i' 1'� �^.7 -y Y' 4'1 ",
TO:12027752519 P:2
JUL-12-2001 06.54P FROM: 5619129003
IN WITNESS WHEREOF, the parties have executed this Agreement by their duty
authori7ad representative as of the date first written above.
Public Broadcasting of Colorado,Inc.
By. -
Name:
Title:
Aspen Public Rodio Inc.
By: �..
Name:yt•�5-._
Title: „;
�ggzgg�}g x9828$ I-Doe
APPENDIX 1
ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is made and entered into this _ day of July,
2001 by and between Public Broadcasting of Colorado, Inc. (also known as Colorado Public
Radio or "CPR ), Aspen Public Radio Inc. ("APR") and Arter & Hadden LLP ("Escrow
Agent").
WITNESSETH
WHEREAS, CPR and APR are parties to a certain Settlement Agreement dated as of
even date herewith(the"Settlement Agreement"); and
WHEREAS, the Settlement Agreement requires that CPR deposit the sum of Twelve
Thousand Dollars ($I2,000) (the "Escrowed Funds") with the Escrow Agent, to be held and
subsequently to be disbursed in accordance with the terms set forth herein.
NOW, THEREFORE, for and in consideration of the mutual promises and in
consideration of the mutual benefits to be derived therefrom, the parties hereto agree as follows:
1. Concurrently with the execution of this Agreement, CPR has delivered to the Escrow
Agent the Escrowed Funds.
2. The Escrow Agent shall deposit the Escrowed Funds in federally insured money
market accounts or savings accounts and will act hereunder as a depository only and is not a
party to or bound by the Settlement Agreement or any other agreement, document or
understanding to which CPR and APR are parties except this Agreement and is not responsible
or liable in any manner for the sufficiency, correctness, genuineness or validity of any of the
agreements or documents existing between CPR and APR, and the Escrow Agent undertakes no
responsibility or liability for the form_,and execution of such agreements and documents or the
identity, authority, title or rights of any person executing any such agreements and documents.
3. The Escrow Agent shall disburse the Escrowed Funds and accrued interest thereon as
follows:
(a) Should the Escrow Agent be served with a notice from CPR. and APR
confirming that the Settlement Agreement is to be consummated, then the Escrow Agent shall,
upon receipt of such notice, forward the Escrowed Funds (less any interest thereon, which shall
be paid to CPR) to APR (or its nominee) on the Settlement Closing Date, as defined in Section 3
of the Settlement Agreement.
(b) Should the Escrow Agent receive a notice from CPR stating that the
Settlement Agreement is to be terminated for any reason other than a material default of CPR
which has not been cured within twenty days following written notice thereof by APR, then the
Escrow Agent shall return the Escrowed Funds, together with all interest earned thereon, to CPR
unless, within twenty days of such notice, the Escrow Agent receives a conflicting notice from
APR contending that CPR is at fault, in which event it will make no distribution of the Escrowed
Funds unless and until (i) it receives a joint notice, signed by both CPR and APR, containing
instructions as to the disposition of the Escrowed Funds or(ii) it is instructed by an arbitrator or a
court of competent jurisdiction which has resolved the dispute between the parties.
(c) Notwithstanding the foregoing, the Escrow Agent shall comply with any
instructions signed by both CPR and APR concerning disposition of the Escrowed Funds.
4. In the event conflicting notices are served upon the Escrow Agent pursuant to Section
3(b) above, then the Escrow Agent may, at its sole option, (a) continue to hold the Escrowed
Funds and collect and deposit all interest earned thereon or (b) advise all parties of the filing of
an interpleader action in the United States District Court for the District of Columbia,whereupon
the .Escrow Agent shall then promptly file the interpleader action and place the Escrowed Funds
in the registry of the Court. CPR and APR jointly and severally agree to pay the Escrow Agent's
costs, including reasonable attorney's fees which the Escrow Agent may expend or incur in such
interpleader suit, the amount of such costs to be fixed and judgment therefor to be rendered by
the Court in such suit. Upon the filing of the interpleader action and the payment of the
Escrowed Funds into the registry of the United States District Court, the Escrow Agent shall be
fully released and discharged from all obligations imposed on it under this Agreement.
CPR and APR acknowledge that Arter& Hadden LLP is counsel to CPR in connection
with, among other things,the Settlement Agreement. CPR and APR each agrees that, in the
event of a controversy as described in this paragraph 4, Arter&Hadden LLP may continue to
represent CPR in connection with the Settlement Agreement,by resigning as Escrow Agent and
the appointment of a substitute Escrow Agent by the Parties. If the Parties are unable to appoint
a successor Escrow Agent, Arter&Hadden LLP as Escrow Agent may proceed with the filing of
an interpleader action in accordance with the provisions of the foregoing paragraph.
5. The Escrow Agent undertakes to perform such duties as are specifically set forth
herein and may conclusively rely, and shall be protected in acting or refraining from acting, on
any written notice, instrument or signature believed by them to be genuine and to have been
signed or presented by the proper party or parties duly authorized to do so. The Escrow Agent
shall have no responsibility for the contents of any writing contemplated herein and may rely
without any liability upon the contents thereof.
6. The Escrow Agent's liability under this Agreement shall be confined to the things
specifically provided for herein. The Escrow Agent shall not be liable for any action it may in
good faith take or refrain from taking in connection herewith, believed by it to be authorized or
within the rights and powers conferred upon it by this Agreement, and may consult with counsel
of its own choice and shall have full and complete authorization and protection for any action
taken or suffered by it hereunder in good faith and in accordance with the opinion of such
counsel and shall not be liable for any mistake of fact or error of judgement or for any acts or
omissions of any kind unless caused by its own misconduct or gross negligence.
- 2 -
............... .............-............... ........... ........... ....... ...........
7. The Escrow Agent may resign at any time by giving 30 days' prior notice thereof to
CPR and APR, and upon providing CPR and APR with evidence that a substitute Escrow Agent,
C)
reasonably acceptable to CPR and APR, has agreed to all of the terms and conditions of this
Agreement and agrees to be bound hereunder.
8. All notices to the Escrow Agent as required or provided for herein shall be made in
writing and served on each other party hereto in the manner specified in the Settlement
Agreement and to the Escrow Agent at.
Arter&Hadden LLP
1801 K Street,N W.
Suite 400K
Washington, D.C. 20006
Attention: William K. Keane, Esq.
or at such other address as the Escrow Agent may subsequently designate by written notice to
each other party hereto and shall be sent by registered or certified mail, return receipt requested.
9. The Escrow Agent shall not charge a fee for its services hereunder. The Escrow
Agent shall be reimbursed for all reasonable expenses and disbursements incurred or made by
the Escrow Agent in performance of its duties hereunder; any such expenses and disbursements
shall be paid one-half by CPR and one-half by APR.
10. This Escrow Agreement shall be construed by and governed in accordance with the
substantive law of the District of Columbia.
11. This Escrow Agreement shall be binding upon and shall inure to the benefit of the
parties, their successors and assigns.
12. This Escrow Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute but one and the same
instrument.
13. This Escrow Agreement shall automatically terminate upon the distribution of the
Escrowed Funds in accordance with Section 3 hereof.
- 3 -
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be
executed on the day and year first above written.
PUBLIC BROADCASTING OF COLORADO,
INC.
By:
Name:
Title:
ASPEN PUBLIC RADIO INC.
By:
Name:
Title:
ESCROW AGENT
By
William K. Keane
Arter&Wadden LLP
248777 1.DDC -4-
EXHIBIT 2
SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT (this"Agreement") is entered into as of this 17 day
of July, 2001, by and between Public Broadcasting of Colorado, Inc. (also known as Colorado Public
Radio or "CPR") and Educational Communications of Colorado Springs, Inc. ("ECCS") (each
referred to sometimes as a"Party"and collectively as the"Parties").
PREMISES:
WHEREAS, CPR has pending before the Federal Communications Commission (the
"FCC") an application for a construction permit for a new noncommercial educational FM
broadcast station on Channel 203 at Durango, Colorado (File No. SPED-19980319ME; Facility ID
90287 (the"CPRIDurango Application");
WHEREAS,ECCS has pending before the FCC an application for a construction pen-nit for
a new noncommercial educational FM broadcast station on Channel 203 at Trimble, Colorado (FCC
File No. BPED-19970929MB; Facility ID 88486 (the "ECCS/Trimble Application");
WHEREAS, the CPR/Durango Application and the ECCS/Trimble Application are
mutually exclusive and are listed in MX Group 970936 in.Appendix D to the FCC's Memorandum
Opinion and Order in Reexamination of the Comparative Standards for Noncommercial Educational
Applicants in MMDocket No. 95-31,FCC 01-64,released February 28, 2001 (the"FCC Order");
WHEREAS, CPR also has pending before the Federal Communications Commission(the
"FCC") an application for a construction permit for a new noncommercial educational FM
broadcast station on Channel 201 at Glenwood Springs, Colorado (File No. BPED-19970924MH;
Facility ID 88445 (the"CPR/Glenwood Springs Application"),
WHEREAS, ECCS also has pending before the FCC an application for a construction
permit for a new noncommercial educational FM broadcast station on Channel 201 at New Castle,
Colorado (FCC File No. BPED-19980813MD; Facility ID 91467 (the "ECCS/New Castle
Application");
WHEREAS, the CPR/Glenwood Springs Application and the ECCS/New Castle
Application, together with two additional competing applications, are mutually exclusive and are
listed in MY Group 970940 in Appendix D to the FCC Order;
WHEREAS, subject to the prior approval of the FCC and pursuant to and in accordance
with the terms of this Agreement, the Parties have entered into this Agreement whereby CPR agrees
to dismiss the CPR/Durango Application so as to facilitate a grant of the ECCS/Trimble Application,
and ECCS agrees to dismiss (or not prosecute further) the ECCS/New Castle Application so as to
facilitate a grant of the CPR/Glenwood Springs Application, for the consideration and undertakings,
and subject to the conditions, set forth herein; and
WHEREAS, the Parties agree that resolving the mutual exclusivity between their
applications is in the public interest in that a new noncommercial educational broadcast service will
be inaugurated expeditiously in Trimble and, subject to the dismissal of the other applicants in MX
Group 970940, in Glenwood Springs, Colorado, and the surrounding areas, and the time and
resources of the Parties and the FCC will be conserved.
NOW THEREFORE,in consideration of the above premises and of the mutual covenants
and agreements contained herein, the receipt and sufficiency of which consideration is hereby
acknowledged, the Parties, intending to be bound legally, agree as follows;
1. Filing of Joint Request for MX Group 970936. Within five business days of the
execution of this Agreement and in any event on or before July 19, 2001, the Parties shall prepare,
execute and file with the FCC a Joint Request For Approval of Universal Settlement(the "Trimble
Joint Request") in accordance with Section 73.3525 of the FCC's Rules and the FCC Order,
requesting that the FCC issue an order(or orders): (i) approving this Agreement, (ii) granting the
ECCS/Trimble Application and(iii) dismissing the CPR/Durango Application. The Parties shall
diligently prosecute the Trimble Joint Request and promptly file any amendment or other supporting
documentation that may be required or requested by the FCC. Each Party shall be prohibited from
taping any action adverse to this Agreement or the Trimble Joint Request,and shall otherwise use
good faith efforts to accomplish their respective obligations wider this Agreement. CPR
acknowledges that the dismissal of its CPR/Durango Application is unconditional. In furtherance
hereof, CPR shall not file with the FCC information relating or responsive to the"point supplement"
for FCC Form 340 with respect to the CPR/Durango Application,whether or not CPR successfully
concludes settlement agreements with the other mutually exclusive applicants in MX Group 970940.
2. Filing of Joint Request for MX Group 970940. If CPR notifies ECCS that CPR
has successfully concluded negotiations with the other applicants in MX Group 970940 whereby
the other applicants agree to dismiss their applications (hereafter, the "Glenwood Springs
Negotiation"), then within five business days of the execution of this Agreement and in any event
on or before July 19, 2001, the Parties shall prepare, execute and file with the FCC a Joint Request
For Approval of Universal Settlement(the"Glenwood Springs Joint Request")in accordance with
Section 73.3525 of the FCC's Rules and the FCC Order,requesting that the FCC issue an order(or
orders): (i) approving this Agreement, (ii)granting the CPR/Glenwood Springs Application and(iii)
dismissing the competing applications, including the ECCS/New Castle Application. The Parties
shall diligently prosecute the Glenwood Springs Joint Request and promptly file any amendment
or other supporting documentation that may be required or requested by the FCC. Each Party shall
be prohibited from taking any action adverse to this Agreement or the Glenwood Springs Joint
Request,and shall otherwise use good faith efforts to accomplish their respective obligations under
this Agreement. ECCS acknowledges that the dismissal of its ECCS/New Castle Application is
unconditional. In furtherance hereof, ECCS shall not file with the FCC information relating or
responsive to the "point supplement" for FCC Form 340 with respect to the ECCS/New Castle
Application, whether or not CPR successfully concludes settlement agreements with the other
mutually exclusive applicants in MX Group 970940.
3. Consideration. In furtherance of and as consideration for the undertakings set forth
herein,(i) CPR shall request dismissal of the CPR/Durango Application and shall not take any action
that would delay or interfere with dismissal of the CPR/Durango Application in accordance with the
terms of this Agreement and the Trimble Joint Request, and(ii)ECCS shall request dismissal of the
ECCS/New Castle Application and shall not take any action that would delay or interfere with
dismissal of the ECCS/New Castle Application in accordance with the terms of this Agreement and
the Glenwood Springs Joint Request for MX Group 970940.
4. Representations and 'Warranties. As an inducement for the other Party to enter
into this Agreement, each Party represents and warrants to the other that:
(i) it has the full right and legal authority to execute and deliver this Agreement, to
perform its obligations under this Agreement, and to consummate the transactions contemplated
hereunder;
(ii) upon execution, this Agreement shall be legally binding upon it, and enforceable
against it in accordance with its terms;
(iii) it is under no restrictions or limitations (contractual, governmental, or otherwise),
which prevents or precludes it from entering into this Agreement and performing its obligations
hereunder; and
(iv) it will,not take any action, or fail to take any required action, which may hinder the
consummation of the transactions contemplated by this Agreement.
5. Compliance with Section 73.7325 of the FCC Rules.
(a) By execution of this Agreement, CPR certifies under penalty of perjury that neither
it nor any of its principals has received or been promised any-consideration of any nature
whatsoever, directly or indirectly, for the dismissal of the CPR/Durango Application and the
additional actions that CPR has agreed to take under this Agreement, except as set forth in this
Agreement. By execution of this Agreement,CPR certifies under penalty of perjury that neither it
nor any of its principals paid or promised to pay any consideration whatsoever,directly or indirectly,
for the dismissal of the ECCS/New Castle Application and the additional actions that ECCS has
agreed to take under this Agreement, except as set forth in this Agreement.. This Agreement
accurately and completely sets forth the agreements and undertakings of the Parties,and serves the
public interest in that a new noncommercial educational broadcast service will be inaugurated
expeditiously in the Trimble and Glenwood Springs areas,respectively, and the time and resources
of the Parties and the FCC will be conserved. The CPR/Durango Application was not filed for the
purpose of entering into this Agreement.
(b) By execution of this Agreement,ECCS certifies under penalty of perjury that neither
it nor any of its principals has received or been promised any consideration of any nature
whatsoever, directly or indirectly, for the dismissal of the ECCS/New Castle Application, and the
additional actions that ECCS has agreed to take under this Agreement, except as set forth in this
Agreement. By execution of this Agreement,ECCS certifies under penalty of perjury that neither
it nor any of its principals paid or promised to pay any consideration whatsoever, directly or
indirectly, for the dismissal of the CPR/Durango Application and the additional actions that CPR
has agreed to take under this Agreement, except as set forth in this Agreement. This Agreement
- 3 -
....................... .................................................................................................................. .................................................................................................... .........._...........-................ ........... ..............
accurately and completely sets forth the agreements and undertakings of the Parties, and serves the
public interest in that a new noncommercial educational broadcast service will be inaugurated
expeditiously in the Trimble and Glenwood Springs areas,respectively, and the time and resources
of the Parties and the FCC will be conserved. The ECCS/New Castle Application was not filed for
the purpose of entering into this Agreement.
6. Entire Agreement. This Agreement is the sole and entire agreement between the
parties with respect to the matters set forth herein. This Agreement shall not be altered or amended
except in a writing signed by CPR and ECCS.
7. Severability. If any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating or otherwise affecting the remainder of such provision
or the remaining provisions of this Agreement.
8. Binding on Successors and Assigns. This Agreement shall be binding on the
successors and assigns of CPR and ECCS. Notwithstanding the foregoing,neither Party may assign
its rights or delegate its duties under this Agreement without the prior written consent of the other
Party.
9. Rights and Remedies. In the event of a material breach by the other Party of its
obligations under this Agreement,the non-breaching party shall have all rights available to it at law
or in equity. Each Party agrees that the rights granted to the other Party under this Agreement are
unique and that it may not be fully compensated by monetary damages in the event of a material
breach by such Party. Therefore, each Party agrees that the other Party shall be entitled to seek
specific performance of its rights under this Agreement in the event of a material breach or
threatened material breach or non-performance by the other Party, in any such action time being
deemed of the essence. The Party seeking equitable relief to enforce its rights under this Agreement
shall not be required to post bond or provide other security as a condition to seeking such relief. The
prevailing Party in any litigation under this Agreement shall be entitled to recover its reasonable
legal costs incurred in enforcing its rights.
10. Termination. This Agreement may not be terminated except with the mutual
consent of both Parties, provided that if a Party is in material breach of its obligations under this
Agreement,it shall not have the right to terminate this Agreement. In the event of a material breach
by a Party, the non-breaching Party shall be entitled to terminate this Agreement in the event the
breaching Party has failed to cure its default within twenty (20) days of notice thereof by the non-
breaching Party.
11. Costs and Expenses. Except as otherwise provided herein, each Party shall be
responsible for paying its own costs and expenses incurred with respect to: (i) its application; (ii)
the negotiation, execution, and performance of this Agreement; and(iii)the filing and prosecution
of the Joint Request.
12. Notices. Except as otherwise provided herein, all notices or other documents which
are required or contemplated by this Agreement shall be in writing,and shall be either: (i)personally
-4 -
served upon the opposing Parties, effective as of the date of such personal service; (ii) mailed,
postage prepaid, by certified or registered mail, return receipt requested, effective as of the date of
receipt; or (iii) sent by overnight courier service, effective as of the day after the date of delivery to
such courier service; and sent to the following:
CPR :
Ms. Jenny L. Gentry
Vice President, Finance&Administration
Colorado Public Radio
2249 South Josephine Street
Denver, Colorado 80210
(303) 733-3319 (Facsimile)
with a copy (which shall not constitute notice) to:
William K. Keane, Esq.
Arter& Hadden LLP
1801 K Street,NW, Suite 400K
Washington,DC 20006
(202) 857-0172 (Facsimile)
ECCS:
Dr. Ronald A. Johnson
Educational Communications of Colorado Springs, Inc.
1665 Briargate Boulevard,#100
Colorado Springs, CO 80920
(719) 590-1858 (Facsimile)
with a copy(which shall not constitute notice) to:
Lee J. Peltzman, Esq.
Shainis &Peltzman, Chartered
1901 L Street,NW, Suite 290
Washington,DC 20036-3506 _
(202) 293-0810 (Facsimile)
13. Facsimile and Counterpart Signatures. This Agreement shall be effective and
legally binding if signed in counterparts with the same effect as if the signature on each counterpart
were upon the same instrument. This Agreement shall be effective and legally binding upon
delivery of facsimile signatures.
14. Governing Law. The laws of the State of Colorado shall govern the validity,
performance and enforcement of this Agreement without regard to its conflict of laws rules.
- 5 -
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representative as of the date first written above.
Public Broadcasting of Colorado, .Inc.
By:
Name: Max *C jisk
Title: President
Educational Communications of Colorado Springs,
Inc.
By:
Name:
Title:
2963I8 2.DOC
- 6 -
IN WIMSIS WnEREO
F. the pArties have sxcautcd this Agreat�nent vy their duly
authorized I'eprestmtAtive as of the date first written above.
Public BrOsdca00179 of Colorado, Inc.
BY:
Name;
Titlo:
Educa6enul COMMUnfcatipns of Colorado Springu,
Inc.
By:
iif�Te
i
i
I
I
z��ax_,.ncx
f
z
j�
f
i,
_ 7
i
07/17/U1 TiIE I8:59 [TX/RX NO 96601
i
9
i
EXHIBIT 3
i -
t
'i
s
i
1
;.3
9
1
s
,i
i
{
I
3
i
t
SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT(this"Agreement") is entered into as of this 174clay
of July,2001, by and between Public Broadcasting of Colorado,Inc. (also known as Colorado Public
Radio or"CPR") and Pitkin County, Colorado, a Colorado Home Rule County, by and through its
Board of County Commissioners ("Pitkin") (each referred to sometimes as a "Party" and
collectively as the "Parties").
PREMISES:
a
WHEREAS, CPR has pending before the Federal Communications Commission (the
"FCC") an application for a construction permit for a new noncommercial educational FM
broadcast station on Channel 205 at Glenwood Springs, Colorado (File No. BPED-19960906MA;
Facility ID 83315 (the "CPR/Glenwood Springs 88.9 Application")
WHEREAS,Pitkin has pending before the FCC an application for a construction permit for
a new noncommercial educational.FM broadcast station on Channel 205 at Carbondale, Colorado
(FCC File No. BPED-19970312MA; Facility ID 85785 (the "Pitkin/Carbondale Application");
WHEREAS, the CPR/Glenwood Springs 88.9 Application and the Pitkin/Carbondale
Application are mutually exclusive and are listed in MX Group 960904 in Appendix D to the FCC's
Memorandum Opinion and Order in Reexafnination of the Comparative Standards for
Nonconimercial.Educational Applicants in MMDocket No. 95-31, FCC 01-64, released February
28, 2001 (the "FCC Order");
WHEREAS, the CPR/Glenwood Springs 88.9 Application and the Pitkin/Carbondale
Application are the only applications in MX Group 960904, and a settlement of this MX Group
would constitute a universal settlement;
WHEREAS, CPR also has pending before the Federal Communications Commission (the
"FCC") an application for a construction permit for a new noncommercial educational FM
broadcast station on Channel 201 at Glenwood Springs (File No. BPED-19970924MH;Facility ID
88445) (the "CPR/Glenwood Springs 88.1 Application");
WHEREAS, Pitkin has pending before the FCC an application for a construction permit for
a new noncommercial educational FM broadcast station on Channel 201 at Glenwood Springs(FCC
File No. BPED-19980814MH; Facility ID 91418 (the "Pitkin/Glenwood Springs Application's);
WHEREAS,the CPR/Glenwood Springs 88.1 Application and the Pitkin/Glenwood.Springs
Application, together with two additional competing applications, are mutually exclusive and are
listed in MX Group 970940 in Appendix D to the FCC Order;
WHEREAS, subject to the prior approval of the FCC and pursuant to and in accordance
with the terms of this Agreement, the Parties have entered into this Agreement whereby CPR agrees
to dismiss (and not prosecute further)the CPR/Glenwood Springs 88.9 Application so as to facilitate
a grant of the Pitkin/Carbondale Application, and Pitkin agrees to dismiss (and not prosecute further)
the Pitkin/Glenwood Springs Application so as to facilitate a grant of the CPR/Glenwood Springs
88.1 Application, for the consideration and undertakings, and subject to the conditions, set forth
herein; and
WHEREAS, the Parties agree that resolving the mutual exclusivity between their
applications is in the public interest in that a new noncommercial educational broadcast service will
be inaugurated expeditiously in Carbondale and, subject to the dismissal of the other applicants in
luLX Group 970940, Glenwood Springs and the surrounding areas, and the time and resources of the
Parties and the FCC will be conserved.
NOW THEREFORE, in consideration of the above premises and of the mutual covenants
and agreements contained herein, the receipt and sufficiency of which consideration is hereby
acknowledged, the Parties, intending to be bound legally, agree as follows;
I. Filing of Joint Request for MX Group 960904. Within five business days of the
execution of this Agreement and in any event on or before July 19,2001, the Parties shall prepare,
execute and file with the FCC a Joint Request For Approval of Universal Settlement Agreement in
MX Group 960904(the"Carbondale Joint Request") in accordance with Section.73,3525 of the
FCC's Rules and the FCC Order, requesting that the FCC issue an order(or orders): (i) approving
this Agreement, (ii) dismissing the CPR/Glenwood Springs 88.9 Application and (iii) granting the
Pitkin/Carbondale Application. The Parties shall diligently prosecute the Carbondale Joint Request
and promptly file any amendment or other supporting documentation that may be required or
requested by the FCC. Neither Party shall take any action adverse to this Agreement or the
Carbondale Joint Request,and shall otherwise use good faith efforts to accomplish their respective
obligations under this Agreement. CPR acknowledges that the dismissal of its CPR/Glenwood
Springs 88.9 Application is unconditional. In furtherance hereof, CPR shall not file with the FCC
information relating or responsive to the "point supplement" for FCC Form 340 with respect to the
CPR/Glenwood Springs 88.9 Application, whether or not CPR successfully concludes settlement
agreements with the other mutually exclusive applicants in NIX Group 970940.
2. FiIing of Joint Request for MX Group 970940_ Within five business days of the
execution of this Agreement and in any event on or before July 19, 2001, the Parties shall prepare,
execute and file with the FCC a Joint Request For Approval of Settlement Agreement in 11FIX Group
970940(the"Glenwood Springs Joint Request") in accordance with Section 73.3525 of the FCC's
Rules and the FCC Order, requesting that the FCC issue an order (or orders): (i) approving this
Agreement, (ii) granting the CPRJGlenwood Springs 88.1 Application and (iii) dismissing the
competing applications, including the Pitkin/Glenwood Springs Application. The Parties shall
diligently prosecute the Glenwood Springs Joint Request and promptly file any amendment or other
supporting documentation that may be required or requested by the FCC. Neither Party shall take
any action adverse to this Agreement or the Glenwood Springs Joint Request, and shall otherwise
use good faith efforts to accomplish their respective obligations under this Agreement. Pitkin
acknowledges that the dismissal of its Pitkin/Glenwood Springs Application is unconditional. In
furtherance hereof, Pitkin shall not file with the FCC information relating or responsive to the "point
supplement" for FCC Form 340 with respect to the Pitkin/Glenwood Springs Application, whether
or not CPR successfully concludes settlement agreements with the other mutually exclusive
applicants in MX Group 970940.
-2 -
3. Consideration. As consideration for the undertakings set forth herein, (i) CPR shall
request dismissal of the CPR/Glenwood Springs 88.9 Application and shall not take any action that
would delay or interfere with dismissal of that Application in accordance with the terms of this
Agreement and the Carbondale Joint Request, and (ii) Pitkin shall request dismissal of the
Pitkin/Glenwood Springs Application and shall not take any action that would delay or interfere with
dismissal of the Pitkin/Glenwood Springs Application in accordance with the terms of this
Agreement and the Glenwood Springs Joint Request for Na Group 970940.
4. Representations and Warranties. As an inducement for the other Party to enter
into this Agreement, each Party represents and warrants to the other that:
(1) it has the full right and legal authority to execute and deliver this Agreement, to
perform its obligations under this Agreement, and to consummate the transactions contemplated
hereunder,
(ii) upon execution, this Agreement shall be legally binding upon it, and enforceable
against it in accordance with its terms;
(iii) it is under no restrictions or limitations (contractual, governmental, or otherwise),
which prevents or precludes it from entering into this Agreement and performing its obligations
hereunder; and
(iv) it will not take any action, or fail to take any required action,which may hinder the
consummation of the transactions contemplated by this Agreement.
5. Compliance with Section 73.7325 of the FCC Rules.
(a) By execution of this Agreement, CPR certifies under penalty of perjury that neither
it nor any of its principals has received or been promised any consideration of any nature
whatsoever,directly or indirectly, for the dismissal of the CPR/Glenwood Springs 88.9 Application,
and the additional actions that CPR has agreed to take under this Agreement, except as set forth in
this Agreement. By execution of this Agreement, CPR certifies under penalty of perjury that neither
it nor any of its principals have paid or promised to pay any consideration, directly or indirectly, for
dismissal of the Pitkin/Glenwood Springs Application and the additional actions that Pitkin has
agreed to take under this Agreement, except as set forth in this Agreement. This Agreement
accurately and completely sets forth the agreements and undertakings of the Parties with respect to
dismissal of their respective applications,and serves the public interest in that a new noncommercial
educational broadcast service will be inaugurated expeditiously in the Carbondale area, and the time
and resources of the Parties and the FCC will be conserved. The CPRJGlenwood Springs 88.9
Application was not filed for the purpose of entering into this Agreement..
(b) By execution of this Agreement, Pitkin certifies under penalty of perjury that neither
it nor any of its principals has received or been promised any consideration of any nature, directly
or indirectly, for dismissal of the Pitkin/Glenwood Springs Application, and the additional actions
that Pitkin has agreed to take under this Agreement, except as set forth in this Agreement. By
- 3 -
-Allow- .100010
execution of this Agreement, Pitkin certifies under penalty of perjury that neither it nor any of its
principals have paid or promised to pay any consideration,directly or indirectly, for dismissal of the
CPR/Glenwood Springs 88.9 Application and the additional actions that CPR has agreed to take
under this Agreement, except as set forth in this Agreement. This Agreement accurately and
completely sets forth the agreements and undertakings of the Parties with respect to dismissal of
their respective applications, and serves the public interest in that anew noncommercial educational
broadcast service will be inaugurated expeditiously in the Glenwood Springs area, and the time and
resources of the Parties and the FCC will be conserved. The PitkinlGlenwood Springs Application
was not filed for the purpose,of entering into this Agreement.
6. Entire Agreement., This Agreement represents the entire agreement between the
parties with respect to the dismissal of their respective applications as referenced above. This
Agreement shall not be altered or amended except in a writing signed by CPR and Pitkin.
7. Severability. If any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity,without invalidating or otherwise affecting the remainder of such provision
or the remaining provisions of this Agreement.
8. Binding on Successors and Assigns. This Agreement shall be binding on the
successors and assigns of CPR and Pitkin. Notwithstanding the foregoing,neither Party may assign
its rights or delegate its duties under this Agreement without the prior written consent of the other
Party.
9. Rights and Remedies. In the event of a material breach by the other Party of its
obligations under this Agreement, the non-breaching party shall have all rights available to it at law
or in equity. Each Party agrees that the rights granted to the other Party under this Agreement are
unique and that it may not be fully compensated by monetary damages in the event of a material
breach by such Party. Therefore, each Party agrees that the other Party shall be entitled to seek
specific performance of its rights under this Agreement in the event of a material breach or
threatened material breach or non-performance by the other Party, in any such action time being
deemed of the essence. The Party seeking equitable relief to enforce its rights under this Agreement
shall not be required to post bond or provide other security as a condition to seeking such relief. The
prevailing Party in any litigation under this Agreement shall be entitled to recover its reasonable
legal costs incurred in enforcing its rights.
10. Termination. This Agreement may not be terminated except with the mutual
consent of both Parties, provided that if a Party is in material breach of its obligations under this
Agreement,it shall not have the right to terminate this Agreement. In the event of a material breach
by a Party, the non-breaching Party shall be entitled to terminate this Agreement in the event the
breaching Party has failed to cure its default within twenty (20) days of notice thereof by the non-
breaching Party.
11. Costs and Expenses. Except as otherwise provided herein, each Party shall be
responsible for paying its own costs and expenses incurred with respect to (i) its application; (ii)
the negotiation, execution,and performance of this Agreement;and(iii)the filing and prosecution
-4-
of the Joint Requests.
12. Notices. Except as otherwise provided herein, all notices or other documents which
are required or contemplated by this Agreement shall be in writing,and shall be either: (i)personally
served upon the opposing; Parties, effective as of the date of such personal service; (ii) mailed,
postage prepaid,by certified or registered mail, return receipt requested, effective as of the date of
receipt; or (iii) sent by overnight courier service,effective as of the day after the date of delivery to
such courier service; and sent to the following:
CPR :
Ms.Jenny L. Gentry
Vice President,Finance&Administration
Colorado Public Radio
2249 South Josephine Street
Denver, Colorado 80210
(303) 733-3319 (Facsimile)
with a copy(which shall not constitute notice) to:
William K. Keane, Esq.
Arter&Hadden LLP
1801 K Street,NW, Suite 400K
Washington,DC 20006
(202) 857-0172 (Facsimile)
Pitkin.
Mr. Stan Berryman
Director of Special Projects
Pitkin County
530 E. Main Street
Aspen, CO 81611
(970) 920-5198 (Facsimile)
with a copy(which shall not constitute notice)to
Henry A. Solomon,Esq.
Garvey, Schubert&Barer
1000 Potomac Street, NW, Fifth Floor
Washington, DC 20007
(202) 965-1729 (Facsimile)
13. Facsimile and Counterpart Signatures. This Agreement shall be effective and
legally binding if signed in counterparts with the same effect as if the signature on each counterpart
were upon the same instrument. This Agreement shall be effective and legally binding upon
delivery of facsimile signatures.
-5 -
14. Governing Law. The laws of the Mate of Colorado shalt govern the validity,
perfonn�nce and enforcement of this Agreement without regard to its conflict of laws rules.
y IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representative as of the date first written above.
Public Broadcasting of Colorado, Inc.
By:
Name: Max risk
Title: President
Ptkin County, Colorado
By:
Name:
Title:
298354 IN C
- 6 -
Jul-17-01 18:08 From- T-539 P.Q21GZ F-82d
14. Governing Law. The ZaWS Of the State of Colorado shall govctn the validity,
performance .}nd enforcement of this Agreernestt w1111aut regard [o its conflict of 14Ws rules.
X.N Y-ITNESS WIWn0F, the parries have execatcd this AgrecMent by their 4uly
authorized representauve as of the date first written above.
Public Proadcoting of Colorado, Iuc.
By:
Name:
Titlr-
Fltkin Counry, Calarado
By. �S-
liame.
2993Sq 34Y0C
a
EMIBI[T 4
Comstudy Wedhesday,July 11, 2001
The four compeating applications for the Glenwood Springs Area
70 Meeker i-Ic7as ia�.sa ion-u io�ab joss �:wx
25,1 t8 pUp
60 980814MH 1803 sq km
ECCS 15,072 pop
586 sq km
50
980813MD
40 a Pilkin Ct
30
w
20 i m n
10
0 + 980812MI
WOW=e Aspen PR
34,414 Pop
4fi84 sq km
10
20 970924MH
PBC
30-
41,637 pop
6630 sq km
40
DO
'cecroredge
60
>xrd city
70
km 70 60 50 40 30 20 10 0 10 20 30 40 50 60 70
State Borders — Highways — 1_.atlLon Grid
Map Scale, 1:976092 1 cm=9.76 km VJH Size. 144.59 x 145.15 km
-tft8.Ot3 � .107.20
MPPkY!
1, -----
40-00
KDNK
VV60
Rifle penu000Sp s 9 0s12{V�E _
35-3n - ----- -- - - ---- `� - --- Aspen PR
..r
97t192al11H �— Leadvttte
PBC
- - ------------------— - - - — - - ---- -- -
�4-inn
f
t
. _Gurinis`on� ' ----- -__- ``'-'---
Glenwood Springs area FCC applications
307(b) issues
First service Second service
Pop. Area Pop. Area
Applicant (sq. km.) (sq. km.)
Public Broadcasting of
Colorado, Inc. n/a n/a 7,568 2,327
(red + pink)
Aspen Public Radio, Inc. 236 1,015 6,305 780
(dark blue) (pink + green)