HomeMy WebLinkAbout1989-06-13 Support Documentation Town Council Work Session1
VAIL TOWN COUNCIL
WORK SESSION
TUESDAY, JUNE 13, 1989
2:00 p.m.
AGENDA
1. Vail Stage Race Request for Funding
2. Discussion of Heritage Franchise Agreement with Heritage
Communications, Inc.
3. Information Update
4. Other
VAIL TOWN COUNCIL
WORK SESSION
TUESDAY, JUNE 13, 1989
2:00 p.m.
EXPANDED AGENDA
2:00 1. Vail Stage Race Request for Funding
Ramsey Laursoo
Steve Kropf Action Requested of Council: Receive presentation and
approve/deny request for TOV funding of $1,000.
2:15 2. Discussion of Heritage Franchise Agreement with Heritage
Larry Eskwith Communications, Inc.
Kevin Rice
Action Requested of Council: Give direction on new drafts
of the Franchise Ordinance and the Franchise Agreement.
Background Rationale: The Council and the Town's cable
consultant suggested changes in the last draft of these
documents.
4:15 3. Information Update
Ron Phillips
4:25 4. Other
June 1, 1g~~g
Ramsey Latu•saalSteve Krapf
I~iot~ritain Biking, Inc.
3Q20 S.Fraiitage Rd.~t # s
Vail, CO 8167
{31~~~)476-?~~~
Ran Phillips
Ta ~.m of flail
Vail, ~alarada E1656
Hello!
RECT J U N - 2 1989
Enclosed is Same infarmatioii re~~a:•ding The Vail Stage Race, a mountain bike race gre Have put
tagetlier to occur at tree end of June. ~e ~~ere approached by riders and others invol vied ~~th
I~iauritain Biking to put an this race because Tlie Taur of The Rockies canceled. Far the pest
fi V-e yeas•s, ~~•e have organized the SiiuglBud Light I~~ausitain Bike races as a local series with
great su4.cess. Sa ptAlir~g off this race at a samewhai last minute pace gill work because sa
man y things are already in place dt3e to our organization of the local series.
Ha~re-fer, in ardet• to z•ea11y make this a GREAT e-,tent, we are in need of mare i~~tlding. Because
na atlier bicycle events are slated far this sura.mer, we feel the Town of Vail shatud have a
great interest in helping to financially promote this event.
Idlauntai2i Biking has Brawn tremendously in a very chart time, and has gathered many people
to it's ranks. In I~~iaab, Utah, aii aspring weelerid, there have been 1t1,CiC1Q peapie in their tagm
just to ride their dikes. ~Te feel ;Tail has this same potential, and by beginning to schedule
events such as this race, mare peapie will begin to see TJail as a place to be an a bite.
Please review the fallowing infarmatian and let me knave if the fawn wants to get involved.
I~ue to atu• chart time frame, please make this a primary consideration, sa that i~iids caii be
freed up immediately acid progress can continue. The , cafe of atir ejfent depends an the le~.-el
of funding we case get. ale ~~ill be calling you regarding the ;Tail Stage Ra Ye an Tt~e~vday, June
6th. ate also are promoting the first SnuglBud Light race that evening at 5:G0 p.m., sa you caii
came by to see a race in action if you want.
Thaiil~:s very much for yat~r time!
Sincerely,
r..~ L'v'~~ ~ t, ~ ( ~ 'fir (S~~,Ci i ~>' l )~z;
J 1
s~.~~ Y~, ~~~~
Ramsey Laursa
Steve Kropf ~,
~~ s °
• as Q o ~ VV' a ! a c ~~ a P a° c
~~77//o c ~~,
~~~ a a pao
welcome to the Diamond Bacit G2~'-Road Paints Series - j7ai1 ~ta~e Race! ale ~vauld like to asl~ you
to join us as a major sponsor iauether with Christy Sports and Diamond Back in p2•amating a
mountain t}iY,e race of National Caliber! ~e need yatu• Yielp to make this The Bic-.~cle e~-ent ai'
the summer!
The wheels are in motion already to put an a mauritain bike race in the Grail GTalley. The Vail
Stage Race is scheduled far the weekend of ,June 24th acid 25th, with three races to be held. On
Saturday, there X711 be a Hi11 Climb to Eagle's Nest and a CS•iterium at Golden Fear; 221 the
afternoon. Sunday, there ~r~ill be a crass cattritry race going back to Last Lake and returning to
Tarn in Test Vail at the DaSras TS•aii. Trials events are planned also far Sunday at Golden Feal;.
Vail Assaciases has joined farces Frith us as well to help make this a fll2i, safe, and actian-
packed event. Pdatianal g2•a riders as well ~ ail levels of citiaen racers gill be in attendan•se.
Already we have gramated this e;rent at The Iran-Horse Classic Race in Du2•ango and at The
Rage in the Sage in Gunnison; and ~ ha~-e 2•eceived very favorable reactiaris.
Since Vail has no real biY.ing event schedtued far this summer, we feel the Vail Stage Race care
fill an important hale in the schedule of summer events.
~ An operation g19n is attached far ya~_~r infarmatian regarding the actual etrents and hair
they gill be accomplished.
~ The Taman of Grail logo vauld go an any print advertising that ~~e distribute, especially the
fl ;per and entry farm that you see attached.
#Fiyers are being distributed at ail pria2• mauritain bike races, as ~~e11 as in Summit Cautity,
Boulder, Denver, and Pit~.i2i Catuity.
Ail the sieges have spectator visibility, and can be vie~•ed easily, showing the action and
excitement of r?Iauntain Bike racing.
Iotu• banner will be hung at a113 st$;es of the event.
* As a cantributar, the race gill be billed with the Town of Vail tagged to any mention of the
race.
The Tawn of=loll •~r411 be mentioned in any radio promotion.
* There should be ca;re2•age of the race in Local gapers, Front range pagers, and possibly in
National I:+Iagazines, such as I~iauntain Bike Action and winning.
~ Dtu•ing announcements a1' an ;r infarmatian during the races, The Tam of Vail will be
mer~tianed.
# This mountain bii~e race gill be good far the fawn, bringing in international and nationally
rariY.ed riders, as tell a, the best riders from Galorada.
# This race will help to put Vail an the map as a place far I~iauntain bike riders to travel to and
stay far their summer vacation glans.
* Any other gramatianal ideas y-au have, we gill be glad to try and accommodate.
.., Tt[
*A monetar ~ commitme:lt from you immediately for $1000: payable as soon as possible ~~r up to
ore ~~eek prior to the race.
{An ~' ~ro1?urteer help yeu ~crould like to contribute.
'~An ~ n7erw•handise pr'iaes 1-ou ~wu1d life to contribute in addiIi[~n to the $1C;C~u.
#A smiling face at the end of the succesfl:1 race!
#Plea:.e make the Check payable to Ramsey LaursoatSteve Kropf: A~io,,~ntgin ~iY;in~: Inc.
~~~ ~o~~9B~Be8~~~~~8~~~8~~~~~8~~g88
#Op'ERATION F'LAN#
I. #Ins~_tr^ance~•
~. « I'•t Ci y.: ~~ F? n ;., r~ V 1 C r': ~ ~" =i r" t. I`f f_ i., cJ F it t d 1 i" e? C j_ ~J r' :
•~• I J'i l F [*1:i..l.:! i ~? Tl 1 j i? 7, .L %:a'r' ;.... 7. %+. L:J 1 .L 1. 'i.: 'y' ~ ' i; a. 1 C:' °J
'i:• I`r l e d 1 '-- `~ ). ). n 5 i i r~ ct n ,_, E? f n r-' ct 1 1 h' Et r 'C 3. ~_ 1 r.., c! Tl t ~:
~.y)O~ii,~f--~ (.`Vent l~r~jW~ratar~, C~,.ia.~_Je
~' C a ril C~ }. ~~~ t e G? a ~.) e: r'• t~J r? 'r' k '(' O 'r ~ Y' :~+. C: e i::i ~:t y i :~ ;=~ t~ 7' a t i. ~~ i'1
i::. ~ iJ !7 1 ~? ~ i} 'r t fl i? r~l..~ f~ r'~ {••i 1 n S l_l r <y. it i ' P +_ r_ r";• i 'r 7. o_'':~t'F i~ :ti i l l L~ e fil <_?':::i i~"'
aVa11aC+).e •,u Exl =,(~OiiaCtr'S cc_> ~vC7'r ct=~ WF' r"eCr:7.Ve tl'1e r<<?). i.rV
~_a V. r~~ I:~+~ ~~OV~?'r'ed~ we need "~ar^~=+_._ F, ~.~~' f~it~l~:.F~EJ
!-'. - I mi3n_y to ~._
5anC•t i.On fE-e.
,:5a ~°'I-~t'!j'~a~=0';-.JV a~ eVet`V enir`c:tnt vJ%'t1VeY' UJll.i. ~~ttr se_[umll:ti:C1 t0
r• ~ a n `= LJ r' i~J n i] Tai f: ~~ I{ ci 'r t r: r' '{.,' 11 i? t'' +_. ~_' ?_ ~= ~1 I li '-~ .~ e ~ :L ~J I Ii .
II. •~Event Description
1. #STAGE 1 #
~•Vai 1 i'+in+~T-;t:nit~ Hi.l1 C7. i.mh•~
it Th t? 'r's_ti"~ F? w 1 1 1 1=~'= GI :t n ~t'I; `~ : I('_II,'I .-~. r,T. ,._%t~_ +_ir'd<K V a J+_iTi r? ;~'_:.Ft Il.
~'~:tL~tr~t ~:i; ti'+e C~tSe ~~~f the Vista I1ahTla C*1~t ~ St~tr'•t ~tCt[.1r~t~!'^eCI
cl ~_• C u 'rte ~~ .! I ~1 U . 'J i ~~ ;a. t3 :~ . i":~ 1 1 r' i ~~ ~ r' y 4xJ 1 .C 1 17 r ' a C_' e =~ d ~ ! p I~*1 i 1 ). C r e ~~ I~(
"~ C5 t?. CI . r'~ a V ~. L e I''1 e rl ~': w {) CFI a T'I y :~ CJ a Y't ~ a ITI F' T'1 a t-t n d t~ s-t 5 L e r'' S (ii~ ...1'i- ~ 'r' I d e
64 i 1 1 e 'i l ~7 i +_t t3 '(: is ~_ '' ;~ r ? h r_~ %a, d i T? R ~ Q +rJ i~+ '~.: i3 I:~ f ~ ~_.+. i. 'r' 14'~ L] %~ ~3 e u r + i * I i.:i 1
Cr~~~el--: tzu_rCi. f='encinq ~Ji).l c+e ~.ised to sep~tr~~tte tha_,e fi.ni~.;~i.nq
t!'ie=_.~_ aid ti'ie a'ri~e'r,_,_~_a.s~=es goinr3 aT-~ i;o G=~?.Ql_ 's fides'!; fii~i'~h.
~~ ~_t Cie 'r ~ c; . ~;:, ~r , e 'r' ~• ,-: ~~. ~ ~r_. 'r' q ~, ~ W ]. ). ). C:' G rl t ]. n li e ~_l G t a '1; h e
F ~q .qCr-' IIeTI ~tnd eta:. .
'~"3.n1'-".i-I ::+.'F i=_~.(~li•?" _ ~\l?~:~a Af'~:~?r' ~"1n1sh"~inr_7 thF~ <.~i.:ctL~~?. 'r~ldr=r`~
will ri.cJe dot1+T-i are their hiki=~: ar t~~k~~: thy.' LJGTICIalc1 dawn.
•~•iaid st~,tians wi.'l:h aJa•t,er and first ztid will tie placed stt
Ch~:tir J.k"~ mind t~lici-•-V~~.i.). next trt ~_; .~ ro~;d.
~'~d~? a1r't._.d';/ t";~~Ve r'c`+.d .L~:]`~ clVz?.11~=.IJ1t? uy 1a,jna 5Q 'r'aijl!7 tCOnta~~'t
will tie in or,eration 'tram starYj; to fi.rti~-fr,
'r The slant? sf°.o+_iid ire r!vi~r Wl%h 1~y J.I(1~..~~1(T ~~. m.
~'A swr:ep rider will came di;t~Jn from the top of Eag).e" ~; t'•.iest to
1lTc'ti•t@ '~+_lr'~? all r'1dt'r'S dri3 a't"'r th~i? 'r'~3ad 5c?'r£?1y. _
~•Res~_Tlts will. !Je pasted d+_ir~i.ng tf~~e Cr,iteri.+_Tm Stacie ~~. :~Vai.l
Nsso~^iates s~_ipl:~ort needed ford
is VolJ_tnteer=_• to ride fr-'ee J_Tp gandala to set J_Tp finish
at Eat~lt?s Mesta
c: , [I n t; Tl gate t G CSI i. ). 1 C i•'r: e k , a T's d C I-1 bt i. 'r' 1 k7 .
/~11!rw ~_cs to dr'i.Ve ane Vet'i.7.C.le >_tp 'L•a sr2$ ~!p aid
St~ttioT"i~~~ ar+d f].ili.~I't li.r+e at Ci+a7.'r' 1~7 aTld h'fi.d-Vail."v ar'
prt,Vlde 1-i]r' a Ut-1 tr+_tCl~ t~? dr'iVe +!.p 'r'•O~id :_tnd dawn far'
~. # STAGE ~#
#Lald F'eak Criter~i~_trn~ ,
•~'1/;~ mile criteri+_tm will he will. t+e constr"'+_icted on Cald f/'eak
- similar to 1_tst year ~fo~_tr• of Thra F2a..skies r,_tci~. We will da
the fencing of the co~_Trse, with direction from Vail
AssoCi_,to•=. b!e will also reseed if r+e~=essi_•~ry.
:'Start time wi 11 t,e at 1c:.~11~ G,, m.
:~Cl<~sses will ridi= tha co+_ir~_e in separate heats, endinla with
S+_Tper t+1en starting aro+_Tr?d ~ : k+k'~ p. rfl,
Yr lJ it e •_, 1 C~ S t i'r ~ i? Tl W 1 is f"~ tr., ;a 1. C~ 'r' 6ti .l .i .~ I:? t:? i ~ r, '~ u l d r= d r~~ n Fi i 1 1 1_ r, I~ 1'1 :'"t 1 'r-.
1;ti .
~r:1.r'at (~1d [iC'.r'~iC+ns ~1J1 ~.1 b4. Oli }'IarICI.
i i.niii~I~ 01` r.;+~e ~~i11 t~,e <~cr.!!r~.~_ta i:]y !t'_inl~ 1~la +=o~_tni-r•r~__.
as~::iraiied to ,;c,e;=•i f'a.c r,!!,~li~er~= c+~ 'r~~ic,e;~rs.._ F~al.l ricier''s; wi.7.1.
'i' 1 i i .l 'S ,, i Q i"i 1 e a. CI i? r' ':1 1 r! u ,. i 1 !P~ i? (? i? i'-i .S. 1 '~:. V t~ 1 .i. 1 ±~ ;? ~ i~ ij ~~ d '!:, i] r' a +~' i? r' S
f.lil1Si111iC} leS'S tl-iGtii i•'eCa!(].r'e ~ laps.
'i=(y f'L- +~, •r, }? o -F }~ ._~'~: ;7. GI !_, :3 r? 1 i C7 Oil ':~; i_y t !i i' f~ S.'~,' . .~ ! t 1 i iw ;Y 'h 1- ~ l ;.
1. Clean !t r:+ C+f .;;il ~~tr~'rti;iC15 Cali L~C'th C'r+!tr'Se=; w111 be '_;~rCtr'tt,C1.
.Li V T !! t' S d ci V` _i !! 'i i k. ~ r f: t'1 „ a i`i y 'r~ e 1?7 :.+..l i i l r1 13 '!_ r"' •:?.'- ._ ~ (] ~" i; l e r~ : t (:' e ':°J :,..L 1
be d~~+iii?.
.11. .Jnt_}Wf''Y~]. TiL~ 1'Or' r'%tCe'r'S w21~. be S;[?~ !tD cit iGCal Cl!t!J.
.l 1 1 . ~Y bs 5 ~_t 1 .r '~ ~!J .1. 1 1 }'l +~ }~ ~] :~ i_ ra ,~ :7 '!~ ~ `I +] +_+ d 1 e ~ , UJ 11 e 1'' A :i ~: ~;? %±. I.") it e t t 1
dinner spet=•i~tl W].ll. ve held.
1V. ~-~ .'LOt;L71r~L'. fJeC_'1.~1 'i"+~r' 'z~_~tCi?i''~~ ?4111 ci.1 -Q b~? ,'?t !l~!.
3. #STAGE ,?,•~
~ 5 t -t r-• t ~a t i t e CI ~ •=:t ri Ct =: t C7 it e 1"t L+ C"> d I' I -t _i :. i t t; i~ t ~ 't: ' y I ~ ~t ~ C
•%~•(~ 1 1 Itl }~ t i) i_ {] S'!:: I__._y}~;-, '!: ~!.'r'n i] 1"'P . r' 1 {~ t= ~!. C] 1i+S ~~.d '~= t7 `ci 1 i i 1~ 1 C ~;'.-~:_,L k
-~.rC)!tnCa LO~~t L~:ke ~tYid bEci_•k uG4vn tC+ I'3.iie~y i ~+.kFi 'r'G~tCi. C~~IC~ViC'~=~
nl e it 3'i i d ~J ~.J l li e l'1 . v i.7 !-i r "' t Vv +] nl ~? e i q a_'~ i"1 d I I a •~ '!:: ~~ r' ~; ~i? l' i d ~~ t I] I-i ~~ t IJ C+ 1 n t .
Tr!~.+~k=_~ wi.1i big av:=iilable i:.'o :~i,!ttt?._~ r'ic}er=_. oi!t 1-rCifi, that
p+71nt Or' tl-leV ("<ctri 'r'ich o!lt i] i.k tC+ t+7wi'i. :~?!lpe'r'S, ~:{( i~?r'i;'=y
~ipor"'t nlenq chid ,~~,i_ ffiei? i-..•Gntlii!tC' C;n iiF'd and ~+Ih7.tE' tT1ii~_tritairi
F? i] : a. i:j 't i] s i n i~ 1 ~ "!v 'r~ .mot C_ ;.; 'l- i] 1 1 i] w i i`i r~ !] +] w e r' 1 1 i i ~? d o w t1 t t~ ~ ~: _~. ij i o
Tower 1:'r~a].l.Th'ie ~~a.ni.sl-, +~Ji17. be at that trail. Tf,e race
1~=1 f1 '}wI"1 w111 I:](? .yjC=pr~i7r{1it%"tt~1t/ ~'.~.~ 1i71 ir3S. ~i_at~r?'r's c~~t-i Y'1dt3 u~!.i~k
-k•L~D1~_lnteel'"'S wl.l.l b=~ T'+C+Stt'_i %~lt Iitc:i,7C+1: ].Tlter-•c,,•~'t:lOi?~~, Gtiier"'
i n ~j_ e r~ ~ r~ +_ t i i] 'ti =_ s4 i l 7. }:] +"? rn ~_t r' !; '_ d a p f_~ r o p r i ~.a i:. e .1_ y .
yi'F-1r'st t-{1CI LE?rsoniiel. will t:le C]laCed c7,ppr'+1C~r"'7.t=-tte1V C1P tlli-'
ct7!!r's?. W1'[:I-i r~cid10., .
nl~id stations wi7.l be G1~-t~_ed Ott Lost Lake t!!r~noT1-, prior t~,
Li]St I_~~tlte SinClle tr'~_+.Ck, cti,d ~iJ ti,e end +]f Lii<51: Lemke •_inl7le
ti^a'.k.
•~-I't}otor'cycl.e sweep will be completeCi after' all riders fi.riish.
~•Radi+~ contact will b~~ es'L-_ablish+ed 1=r'om start to finis}-, -
f!tr-•nished by Vac~.tti.an video.
~'-frials ~=r?rnpe'j.;i'Lioi1 will be I'ieid at 1:::_~IZI at Gold {='+?a.k, t~4i~ich
well be CJGOd .-or' spectator's NJ}il..'i.e r~F•S!llt=.~ Tol'' t}-ie staC}e c1r~e
beinl~ +_+~nipileu'.
•~fi`s!!lt5 w].j.l be po5l:ei~ at Cold F'eaF: F'+aSC-' lUdl~}~_ ctJG'r'C'+Y. I. IIc'tt:e1.V
c ii~]!tr'S ~.fte'r' 'r~ace ft.tiiSli a.tld awar'd~ cei^elili]riV wi11 be
there iG!ltside Ciii deck). :~F'ace sho!!1d be C•[ir;ipl.etE: by 1~:k71t"I tC?
1 :k'i4'I p. m. Hwards sho!tld be :;t .:~ k'~47 p. In.
III. #ADVERTISING/PROMOTION PROGRAM#
#What we wi 11 do for' Yo~_i ! #
1. Race is represented on Diamond Back C:olnr'ado C~Pf--Road
F'i]ints Series Foster as Ti]!tr '~'F The Rockies. (altho!!r~h that
race was canceled, the pri.nti.riy was alr~eady done. )
~. Flyers will be printed as en~tr~y c=orms which we' 11 hike to
tl-,e three prior F'c;irit ~:eries races in DI_tranoo, G!tnni.san, and
:~'L-~=5~.%1bGv~.~.:~ r"1C~~t5~? S~3i~ i•?ili^1~3 3eC.j (:Jr'OL:sJtVpi? G•!` i=7.y~r~e ~~:J~:JiI.3i]1.~
ris?.frl~~~ ..-aTld ~ GqG w1~ 1 bc, On '~~.4'F'l"~ Init? C'G~.!1tJ ea15G i.ai,:~'
11ii=i]r'm<il'I;1Grt r'i?L7:~.r~i:jii~?CJ Gi11~=r'• :~~~(]ii`_~Or' ltlT_~i_4r1t7:_a:in blhi' (:]i'Gr?r'%l Tits I~G
'~i-Ie;ie r'ctL'B°_i~ 1-i).=•Gy _~t ~?c~.~-ft r'._?t:e''. t:iiC, ~Jr~GrIGtEY• 4V i. 1.1 b~: ca~iht3i3
~:. i7 X31-"1 'i 1 ~~~ i_U°, C ? 'ice I'l 8 T c+. ~; a ct 1 ~ ~ l_i i 1 64 i ~_ i i 'y' C~ ~}. i'~ 'il c`4 lilt'e ~ t a ~ti ~ C7 ~J 11 '_ fJ •r' „
~o rlyr'r~~. w].1i a.IsG be tEti-:ei", ~G Lii~.~.~ ~i-iClp_• in ~>~_lmrilit C:G!!i°ityq
LaG~!.).~~i~~r~4 I~i-,l~en,~ ~~ti~t~ ?~envar~ si~ot~se
~i~, t-'r'e=..s •r'n1t.1SF_. 1.G ~Gt='s=-t1 T7PN1sJc1C~t"'.r'~; !~
y Ir 1. T"i Tl 1 i"( Cl ri1 ~ q =t -~ 1 i-i L,
the ~e'n',i~_r~ rr,ste ~rh~ FiGCI~y t~iGi_tTi~ctiTl i:le~°J~:q rile ~G~_tit~t,i' ~;~~•ily,
Garner~a, f?[ii~I•:y t~lv~_tTt'E~:i.T"i `..:ipGr~t:; =~tiiC1 fit?"~ess, ar1Ci (~iiG+_lr~~_s_=l i.r~ r'•i.I<<_~
A ~~ 'I~ i G. a C*I a n L~ ~ i •i 1 ~_ e
~J e w i ). 1 r. e r_s c ~ t i. ~:t fi ~~ w ~. t: h ~ l? C s::t ). I'~ a Ci ]. G s t c1 t 1 Ci it ~:i t ~~~ d O
I7r'GiilGtlGrlSq r''~G~'C-'1<?.1 ).'y~ 6V1'I:,II {::='T'I'C t41`1(r'~? Lr'Gr.~r'_~tlllml'tll~ r'~_'ct~i"':C'
c~tClit'g I--'1ti~1T"iy ctnf:.l ~-:f_{mm1l; C's_~ILilt7.F:c.„
[-, ~ `{ G l! r~ b it Tl n ,:? r" ,~- w i .i. l b L C] ri ~ 1 ~~ ~ 1 =~i '.J <y'I~ :_ t ~K'r't• G ~ I'1 i i). r'~ .I. ]. rrl I:-i q
at tr•i.ter~i.~_!rn4 and at star~t/finish Gf cr-'GSS cG~_!ntryo ~1=>0, at
tl•le _tta~,r~~s i_'~~r'eiiionyo
7o All aT-~T-iG'_!i-i~_i.ng will inci~_!de name i.d~~n~_ ii=icatiGn G~i'
~~h!.~T1:5 Gr~~.
7Y 1`~Ic~tiilF''S Gi T'3c`t,]G1'"' tWG ilCJG?lsGr'5 wT.ll bt' iiT-! C~~,IIGe'C].tGr~~ bir'~s..
~. T-'ashtr'Ls wail be r?'rliiti=t~ wll_h =1:]olla~~'r~ 1~~~1=_~G~ ~.T7~=Ur"'IaGr'_~.t~:_d
'li'1iC~ Cj'=~signe
i~^i~ tnl:~ ~~itpeC•?; ii CI -: lC ~3 ~_tr'tiC:i.Giat:i.iina i.:l t t:~ ~,tr' Cia~.'l•
~~{_!(-~_'r?`:a'~ lrJ1~~;.7 lGCal _,er'1f3s i]f fili)i_(Tli.,~~.~Fl bZI{t' r~c.~~~=se ;~C~irnSG7''S
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CABLE ORDINANCE CHANGES
Draft dated 5/23/89
pg 10 - P15, L2 - term was defined as fifteen years
pg 10 - P16, b., L5 - "A Franchisee ..." through end of c. all wording changed
pg 15 - P19, last para. deleted in its entirety
pg 15 - P20, a., ~ - para. deleted
pg 15 - P20, b. - all wording changed
pg 16 - P21 FORECLOSURE and P22 RECEIVERSHIP combined into P21 INSOLVENCY with all
new wording
pg 17 - P23 (P22 in new document) - all wording changed
pg 17 - P24 (P23 in new document) - all wording changed
pg. 20 - P27 (P26 in new document), b., L2 - "all records" changed to read "all
property, maps, and records"
pg 20 - P29 (P28 in new document), last line of page - after "holidays.", one
sentence was added "All employees ..."
pg 22 - P29 (P28 in new document) - new para. c added in its entirety
pg 23 - P35 (P34 in new document), a., first line - change "shall have the right to"
to read "shall have the right but not the obligation to"
pg 23 - P36 (P35 in new document), a., lines 1, 3, 6, 7 - words "pole" and "poles"
deleted
c,, line 1 - "poles and other" deleted
d., line 1 - "where both the existing telephone
and electrical utilities are already underground" deleted
d. - last para. added in its entirety
pg 25 - P41 (P40 in new document), a., line 7 - between end of sentence "business
days thereafter." and new sentence "Nothing in this Section ...", three new
sentences were added beginning "Any converter security ..."
TOWN OF VAIL CABLE COMMUNICATIONS ORDINANCE
DRAFT 5/23/89
1. This chapter shall be known as the Cable Communications Ordinance.
2. PURPOSE _
The purposes of this ordinance are:
a. Provide for the franchising and regulation of cable television within
the Town of Vail.
b. Provide for a cable communications system that will meet the current
needs of the Town and that can be improved and upgraded to meet future needs.
c. Provide for the payment of fees and other valuable consideration to
the Town for the use of the public ways and for .the privilege to construct and
operate cable communications systems.
d. Provide for the regulation by the Town of certain rates to be charged
to subscribers for certain cable communications services, as permitted by law.
e. Provide for the development of cable communications as a means to
improve communication between and among the members of the public and public
institutions of the Town.
f. Provide remedies and prescribe by penalties for violation of this
ordinance and any franchise granted hereunder.
3. APPLICABILITY
This ordinance is applicable to any application for a cable franchise filed
on or after the effective date of this ordinance and to any such franchise granted
thereafter.
4. DEFINITIONS
For the purpose of this ordinance the following terms, phrases, words and
the derivations shall have the meanings given herein. When not inconsistent with
the context, words used from the present tense include the future, words in the
plural number include the singular and words in the singular number include the
plural number. The word shall is mandatory and the word may is permissive. Words
not defined shall be given their common and ordinary meanings.
a. "Access channel" shall mean any channel set aside for public use,
educational use, or governmental use without a channel use charge.
b. "Access user" shall mean any person or entity entitled to make use of
an access channel consistent with the intended purpose of the channel.
c. "Application" shall mean a proposal seeking authority to construct and
operate a cable communications system within the Town pursuant to this ordinance.
f
It shall include the initial proposal plus all related subsequent amendments and
corresponden~: e :vi ~h the Tc:vr~ .
d. "Basic service" shall mean subscriber cable television services which
includes the delivery of local television broadcast signals as required by the FCC,
access channels, lease channels and local origination channels as covered by the
regular monthly charge paid by all subscribers to any service tier excluding premium
services, two way services, and FM radio services.
e. "Cable television services" shall mean the one way transmission of
video programming and associated non-video signals to subscribers together with
subscriber interaction, if any, which is provided in connection with the video
programming.
f. "Cable communications system" or system shall mean a non-broadcast
facility consisting of a set of transmission paths and associated signal generation,
and reception and control equipment, under common ownership and control, that
distributes or is designed to distribute to public subscribers cable television
services, institutional services, or other communications services, but such terms
shall not include:
1) A facility or combination of facilities that serves only to
retransmit the television signals of one or more television broadcast signals;
2) A facility or combination of facilities that serves only
subscribers in one or more multiple unit dwellings under common ownership, control,
or management, unless such facility or facilities use any public right-of-way;
3) A facility of a common carrier which is subject, in whole or in
part to the provisions of Title II of the Communications Act of 1934, as amended;
except that such facility shall be considered a cable system [other than for the
purposes of 47 U.S.C. 541(c)] to the extent such facility is used and the
transmission of video programming directly to subscribers; or
4) Any facilities of an electric utility used solely for operating
its electric utility system.
g. "Town" is the Town of Vail, Colorado.
h. "Channel" shall mean six (6) Megahertz (Mhz) frequency band which is
capable of carrying either one standard video signal, a number of audio, digital or
other non-video signals or some combination of such signals and which is at least
six (6) Mhz wide.
i. "Connection" shall mean the attachment of the drop to the radio or
television set or other communication device of the subscriber.
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j. "Converter" shall mean an electronic tuning device which converts
transmitted signals to a frequency which permits the reception on an ordinary
television receiver.
k. "Council" or "Town Council" shall mean the governing body of the Town
of Vail.
1. "Drop" shall mean the cable that connects a subscriber's terminal to
the nearest feeder line of the cable communications system.
m. "Easement" shall mean a right to use all public rights-of-way
including public utility easements.
n. "Feeder line" shall mean the coaxial or fiber optic cable running from
the trunk line to line extenders and taps for the purpose of interconnection to
individual subscribers.
o. "FCC" shall mean the Federal Communications Commission.
p. "Gross revenue" shall mean all operating revenue from the cable
communications system derived directly or indirectly by a Franchisee, its
affiliates, subsidiaries, parent, and any person in which the Franchisee has a
financial interest in association with the provision of cable communications
services with the Town, including but not limited to, service tier monthly fees, pay
service fees in excess of programming vendor fees, institutional service fees,
installation and reconnection fees, leased channel fees, converter rentals, studio
rental, production equipment and personnel fees, advertising revenues, copyright
fees; provided, however, that this shall not include any taxes on services furnished
by the Franchisee payable to the State of Colorado or any other governmental unit
and collected by the Franchisee on behalf of said governmental unit, or any revenues
from the provision of cable communications services outside the Town, or any
revenues from sale of capital assets or lease of property for purposes unrelated to
cable communications system.
q. "Installation" means the act of connecting the system from the feeder
cable to the subscriber's receiver so that the installation is to the subscriber's
terminal or receiver.
r. "Institutional services" shall mean one and two way non-entertainment
transmission services for businesses, public agencies and community institutions.
Such services include, but are not limited to, video transmission and voice and data
communications.
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s. "Leased channel" or "leased access channel" shall mean any channel or
part of a channel, available for commercial use on a fee basis by persons or
entities other than a Franchisee.
t. "Franchise" shall mean the non-exclusive right and authority to
construct, maintain, and operate a cable communications system through use of the
public streets, dedications, public utility easements, or other public right-of-way
or public places in the Town pursuant to a contractual agreement executed by the
Town and a Franchisee.
u. "Franchisee" or "Grantee" refers to an entity authorized to construct,
or operate, or both, a cable communications system within the Town pursuant to this
chapter including any lawful successor, transferee, or assignee of the original
Grantee.
v. "Monitoring" shall mean observing a communications signal carried on a
cable communications system, or the absence of such a signal, by any person without
regard to whether such observation is by visual or electronic means. Monitoring
shall not include system-wide sweeps of the cable communications system for purposes
of verifying the integrity of the system and controlling return path of the
transmissions.
w. "Pay Television" shall mean the delivery over the system of per
channel audio-video signals to subscribers for a fee or charge in addition to the
charge for basic service.
x. "Person" shall mean any person, firm, partnership, association,
corporation, company, or organization of any kind.
y. "Service tier" shall mean a specific set of cable subscriber services
which are made available .as, and only as, a group for purchase by subscribers at a
specific rate for the group.
z. "Street" or "public way" shall mean the surface and the space below
and above any public street, road, highway, path, sidewalk, alley, court, or
easement now or hereafter held by the Town for the purpose of public travel or
public utilities and shall include public easements or rights-of-way.
aa. "Subscriber" shall mean a recipient of cable television service or
other services provided over a cable communications system.
bb. "User" shall mean a party utilizing a cable communications systems
facility for the purpose of production or transmission of material or information to
subscribers.
-4-
5. REQUIREMENT OF A FRANCHISE
It s"~a'1 he un';a:rfu~ tc ccnstruct, install, maintain, or operate a cable
communications system or part of a cable communications system within the Town
without a valid franchise obtained in accordance with the provisions of this
chapter.
6. GENERAL FRANCHISE CHARACTERISTICS
Any franchise issued in accordance with the provisions of this chapter
shall be deemed to:
a. Authorize use of the public ways for installing cables, wires, lines
and other facilities in order to operate a cable communications system, but shall
neither expressly nor implied be deemed to authorize the Grantee to provide service
to, or install cable, wires, lines, or any other equipment or facilities upon
private property without owner consent, or to utilize publicly or privately owned
utility poles or conduits without a separate agreement with the owners therefore;
b. Be non-exclusive, and shall neither expressly nor implied be deemed to
preclude the issuance of subsequent franchises to operate one or more cable
communications systems within the Town; and
c. Convey no property right to the Franchisee or right to renewal except
as required by Federal and State law.
7. FRANCHISE AS A CONTRACT
A franchise issued pursuant to the provisions of this chapter shall be
deemed to constitute a contract between the Franchisee and the Town. The Franchisee
shall be deemed to have contractually committed itself to comply with the terms,
conditions, and provisions of the franchise documents, and with all rules, orders,
regulations, and determinations applicable to the franchise which are issued,
promulgated, or made pursuant to the provisions of this chapter.
8. CONFLICTS
a. All terms, conditions and provisions of this chapter and the
application for a franchise shall be deemed to be embodied in a franchise, and
conflicts in terms, conditions or provisions between these documents shall be
resolved as follows:
1) The express terms of this chapter shall prevail over conflicting
or inconsistent provisions of the franchise;
2) The express terms of the franchise shall prevail over conflicting
or inconsistent provisions in the application and any request for proposals; and
-5-
3) The express terms of any request for proposals shall prevail over
conflicting or inconsistent provisions in the application for the franchise.
b. The provisions of the franchise shall be liberally construed in order
to effectuate its pu.r_poses and objectives consistent with this chapter and the
public interest. In the event one or more provisions of the franchise or this
chapter or subsequently found to be unlawful, null and void or unenforceable, the
Town shall, at its sole option, have the right to consider said provisions severed
from the franchise so as to continue the franchise's effectiveness, in accordance
with the terms of this chapter. Any franchise agreement will be construed under the
laws of the State of Colorado.
9. FRANCHISEE SUBJECT TO POLICE POWER
A Franchisee shall, at all times during the life of a franchise, be subject
to all lawful exercise of the police power by the Town and through such lawful
regulations as the Town shall hereafter enact. The construction, operation, and
maintenance of the system shall also be in full compliance with all other applicable
rules and regulations now in effect or hereafter adopted by the United States, the
State of Colorado, or any agency of said governments.
10. FRANCHISE VALIDITY
A Grantee shall agree, by the acceptance of a franchise, to accept the
validity of the terms and the conditions of this ordinance and the franchise in
their entirety and that the Grantee will not, at any time in any claim or
proceeding, challenge any term or provision of this ordinance or the franchise as
unreasonable or arbitrary or argue that the Town did not have the authority to
impose such term or condition.
11. FILING OF APPLICATIONS
Applications for a cable communications franchise will be considered
pursuant to the following procedures:
a. An application may be filed at any time or pursuant to a request for
proposals issued by the Town.
b. Upon the filing of an application, the Town shall publish notice of
the filing in a newspaper of general circulation in the Town. Any person wishing to
submit any comment on the application shal 1, within fifteen (15) days of the date of
notice of the first application, file such comment with the Town Manager.
c. All applications to be acceptable for filing must be accompanied by a
filing fee of ten thousand sixty dollars ($10,060). The Town shall apply all filing
fees received against all costs associated with its evaluation of any pending
-6-
applications pursuant to this chapter. In the evenc t~~at tctai costs are ies~ c~a~~
the total filing fees, the Town shall refund a portion of the filing fee on a
prorated basis for each Applicant within forty-five (45) days after franchise
grant. The Town shall furnish applicant with documentation of all costs incurred at
that time.
12. CONTENT OF APPLICATIONS
To be acceptable for filing, an application must conform to any applicable
request for proposals and all the information specified therein. Where an
application is not filed pursuant to a request for proposals shall contain at
minimum, the following information:
a. Identification of the ownership of the Applicant, if not a natural
person, including the names and addresses of all persons with one (1) percent or
more ownership interest and the ultimate controlling natural persons and
identification of all officers and directors and any other primary business
affiliation of each.
b. An indication whether or not the Applicant, or any entity controlling
the Applicant, including any officer of a corporation or a major stockholder
thereof, has been adjudged bankrupt, has had a cable franchise revoked, or been
found guilty by any court or administrative agency in the United States of:
1) A violation of a security or antitrust law; or
2) A felony or any other crime involving moral turpitude. Identify
any such person or entity and fully explain the circumstances.
c. A demonstration of the Applicant's technical and financial ability to
construct and operate the proposed cable facility.
d. A description of the physical facility proposed, including channel
capacity including one way and two way, if any, the area to be served, a summary of
technical characteristics, and head end and access facilities.
e. A description relating how any construction will be implemented,
identification of areas having above ground or below ground cable facilities, the
proposed construction schedule, and a description where appropriate, indicating how
service will be converted from any existing facility to a new facility.
f. A description of the services to be provided over the system,
including identification of television signals, both broadcast and non-broadcast, to
be carried and all non-television services to be provided initially. Where service
will be offered by tiers, identify the signals or services, or both, to be included
on each tier.
-7-
g. The proposed rates to be charged, including rates for each service
tier, as appropriate, and charges for installation, converters and other services.
h. Information as necessary to demonstrate compliance with all relevant
requirements contained in this chapter.
i. A demonstration stating how the proposal is reasonable to meet the
future cable related community needs and interests. In particular, the application
should describe how the proposal will satisfy the needs as analyzed in any recent
community needs assessment commissioned by the Town.
j. A demonstration how the proposal was designed to be consistent with
all federal and state requirements.
k. Pro forma financial projections for each year of the franchise term.
The projections shall include a statement of income, balance sheet, statement of
sources and use of funds, and schedule of capital additions. All significant
assumptions shall be explained in notes or supporting schedules set accompanying the
projections.
1. A complete list of all cable communications systems in which the
Applicant or a principle thereof holds an equity interest.
m. An affidavit of the Applicant or duly` authorized officer thereof
certifying, in a form acceptable to the Town, the truth and accuracy of the
information contained in the application.
n. In the case of an application by an existing Franchisee for renewed
franchise, a demonstration that said Franchisee has substantially complied with the
material terms of the existing franchise and with applicable law.
o. Any person who files an application with the Town for a cable
communications franchise shall forewith, at all times, disclose to the Town, in
writing, the names, addresses, and occupations of all persons who are authorized to
represent or act on behalf of the Applicant in those matters pertaining to the
application. The requirement to make such disclosure shall continue until the Town
shall have rejected an Applicant's application or until an Applicant withdraws its
application.
13. CONSIDERATION OF APPLICATIONS
a. The Town shall consider each application for a franchise with the
applications found to be acceptable for filing and in substantial compliance with
the requirements of this chapter and any applicable request for proposals. In
evaluating an application, the Town will consider, among other things, the
Applicant's past service record in other communities, the nature of the proposed
-8-
facilities and services, including rates to be charged therefor, and whether the
proposal is adequate to meet the future cable related community needs and interests
of the citizens of the Town. Where the application is for a renewed franchise, the
Town shall consider whether:
1) The cable operator has substantially complied with the material
terms of the existing franchise and with applicable law;
2) The quality of the operator's service, including signal quality,
response to consumer complaints, and billing practices, but without regard to the
mix, quality, or level of cable services or other services provided over the system,
has been reasonable in light of community needs;
3) The operator has the financial, legal and technical ability to
provide the services, facilities and equipment as set forth in the operator's
proposal; and
4) The operator's proposal is reasonable to meet the future cable
related community needs and interests, taking into account the cost of meeting such
needs and interests.
b. Where the Town determines. that an Applicant's proposal, including the
proposed service area, would serve the public interest, and may grant a franchise to
the Applicant. The franchise agreement will constitute a contract, freely entered
into, between the Town and the Grantee. Said franchise agreement shall incorporate
by reference the relevant provisions of this chapter. Any such franchise must be
approved by ordinance of the Town Council pursuant to the ordinances of the Town and
the Charter of the Town.
c. In the course of considering an application for renewed franchise, the
Council shall hold a public hearing, consistent with the provisions of 47 U.S.C.,
Section 626 as existing or as may from time to time be amended.
d. A franchise granted pursuant to this chapter shall not take effect
until the Applicant pays a grant fee to the Town. The grant fee shall be equal to
the Town's reasonable direct costs in the franchising process, less the application
filing fee received. The Town shall provide to the Grantee a statement summarizing
such costs prior to the execution of the franchise.
14. ACCEPTANCE
A franchise and its terms and conditions shall be accepted by a Grantee by
written instrument, in a form acceptable to the Town Attorney, and filed with the
Town Clerk within thirty (30) days after the granting of the franchise. by the Town.
In its acceptance, the Grantee shall declare that it has carefully read the terms
-g-
and conditions of this ordinance and the franchise and accepts all of the terms and
conditions of this ordinance and the franchise and agrees to abide by same. In
accepting a franchise, a Grantee shall indicate that it has relied upon its own
investigation of a11. relevant facts, that it was not induced to accept the franchise
and that it accepts all reasonable risks relating to the interpretation to the
franchise.
15. FRANCHISE TERM
The term of a franchise shall be as specified in the franchise agreement,
but it shall not exceed fifteen (15) years. If a Franchisee seeks authority to
operate a cable system in the Town beyond the term of its franchise, it shall file
an application for a renewed franchise not later than thirty (30) months prior to
the expiration of its franchise.
16. FRANCHISE FEE
a. The Franchisee in consideration of the privilege granted under a
franchise for the use of the public ways and the privilege to construct and operate
a cable communications system, shall pay to the Town five (5) percent of its annual
gross revenues during the period of its operation under the franchise.
b. A Franchisee shall file with the Town, thirty (30) days after the last
day of each quarter, a financial statement showing the gross revenues received by
the Franchisee during the preceding quarter. A Franchisee shall pay the quarterly
portion of the franchise fee to the Town on or before the time such financial
statement is due to be filed. With each payment required by this. Section 902 the
Franchisee shall submit a written statement, signed and certified by the Franchisee
to be true and correct, showing for the immediately preceding calendar quarter the
amount of gross revenues, the amount of all revenues derived from the system and an
itemization of all permissible deductions therefrom to arrive at gross revenues.
The Franchisee shall also submit to the Town on or before the 30th day following the
end of each calendar year and following the expiration or termination of this
franchise a written statement, signed and certified by the Franchisee to be true and
correct, showing for the immediately preceding year or partial year, as applicable,
the amount of gross revenues, the amount of all revenues derived from the system and
an itemization of all permissible deductions therefrom to arrive at gross revenues.
The Town shall have the right on thirty (30) days notice to the Franchisee to demand
that the annual statement be certified to be true and correct and in compliance with
the requirements of this ordinance by both the Franchisee and an independent
certified public accountant in accordance with sound and accepted accounting
-10-
practice. The statements referred to in this subsection shall be in such form and
style and contain such details and information as the Town shall reasonably
designate. The acceptance by the Town of payments or reports thereof shall be
without prejudice an:d shall not constitute a waiver of the Town's right to claim a
deficiency in the payment of franchise fees or to audit the Franchisee's books and
records, as hereinafter set forth.
c. Upon five (5) days prior written notice to the Franchisee, the Town
shall have the right to cause a complete audit to be made of the books and records
of the Franchisee with respect to the System. If the results of such audit show
that the Franchisee's statement of gross revenues for any period ending not more
than three (3) years prior to the commencement of the audit has been understated by
three percent (3%) or more, then the Franchisee shall pay the Town the cost of such
audit, any deficiency payment shown by such audit to be due and interest thereon at
the agreed rate. A report of the findings of the Town's accountant shall be binding
and conclusive upon the Franchisee and the Town.
d. In the event that any franchise payment is not received by the Town on
or before the applicable date, interest shall be charged from such due date at an
annual interest rate then chargeable for unpaid federal income taxes (26 U.S.C.,
Section 6621). In addition to the foregoing, the Franchisee shall pay a late charge
of five (5) percent of the amount of such payment. Interest and late charges will
not be chargeable to the Franchisee for additional payment required under the yearly
adjustment, provided that such payment does not exceed ten (10) percent of the total
monthly payments made during the year. In the event such payment exceeds ten (10)
percent, the Franchisee shall be liable for interest and late charges for the entire
amount.
e. In the event a franchise is revoked or otherwise terminated prior to
its expiration date, the Franchisee shall file with the Town, within ninety (90)
days of the date of revocation or termination, an audited financial statement
showing the gross revenues received by the Franchisee since the end of the previous
year and shall make adjustments at that time for the franchise fees due up to the
date of revocation or termination.
17. INSURANCE, BONDS, INDEMNITY
a. Upon the granting of a franchise and following simultaneously the
filing of the acceptance of the franchise and at all times during the term of the
franchise including the time for removal of facilities or management as a trustee as
provided for herein, the Franchisee shall obtain, pay all premiums for, and deliver
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to the Town written evidence of payment of premiums for and the originals of the
following:
1) A general comprehensive public liability policy or policies
indemnifying, defending, and saving harmless the Town, its officers, boards,
commissions, agents, or employees from any and all claims by any person whatsoever,
including the costs, defenses, attorneys fees, and interest arising therefrom on
account of injury to or death of a person or persons occasioned by the operations of
the Franchisee under the franchise herein granted, or alleged to have been so caused
or occurred, with a minimum liability of one million dollars ($1,000,000) per
personal injury or death of any one (1) person and three million dollars
($3,000,000) for personal injury or death of any two (2) or more persons in any one
(1) occurrence. The policy shall be endorsed adding coverage against all claims for
personal injury liability offenses.
2) A property damage insurance policy or policies indemnifying,
defending, and saving harmless the Town, its officers, boards, commissions, agents,
and employees from and against any and all claims by any person whatsoever,
including the costs, defenses, attorneys fees, and interest arising therefrom, for
property damage occasioned by the operation of the Franchisee under the franchise
herein granted, or alleged to have been so caused or occurred, with a minimum
liability of five hundred thousand dollars ($500,000) for property damage to the
property of any one (1) person and one million dollars ($1,000,000) for property
damage to the property of two (2) or more persons in any one (1) occurrence.
3) A performance bond or bonds in favor of the Town with good and
sufficient surety approved by the Town in the sum set forth in the franchise
agreement conditioned upon the faithful performance and discharge of the obligations
imposed by this ordinance and the franchise awarded hereunder from the date hereof.
The amount of the bond may be reduced as any construction that is required is
completed, consistent with the franchise agreement.
b. The bond requirements set forth above shall no longer apply upon
completion of construction and inspection by the Town as follows:
(1) Franchisee shall give notice to the Town at such time as
Franchisee has completed the construction.
(2) Upon receipt of notice, the Town shall have sixty (60) days to
receive a written report from an independent engineer; provided, however, if the
Town fails to receive such a written report within the sixty (60) days the
completion of construction shall be deemed to have taken place, unless the failure
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to receive such a report is due to unforeseen events, acts of God, or events beyond
the reasonable control of the Town.
(3) Notwithstanding anything to the contrary, the Town may condition
completion of the construction upon receipt of a written report from an independent
engineer. The completion of the system upgrade or system rebuild shall not be
deemed to have taken place until the independent engineer reports the following:
(a) All construction or improvements contemplated by the
Franchisee have been completed or otherwise satisfactorily resolved;
(b) Satisfactory test results using the technical standards set
forth in this franchise agreement at up to ten (10) widely separated subscriber
drops selected by the independent engineer and using the following tests:
1) Signal level
2) Hum
3) Bypass responsive system
4) Carrier to noise of system
5) TASO picture quality (2 or better)
(c) Compliance with all applicable codes and standards.
(d) Carriage of the basic service as available, as set forth in
this franchise ordinance.
c. All bonds and insurance policies called for herein shall be in a form
satisfactory to the Town Attorney. The Town may at any time, if it deems itself
insecure, require a Franchisee to provide additional sureties to any and all bonds
or to replace existing bonds with new bonds for good and sufficient surety approved
by the Town.
d. A Franchisee shall, at its sole cost and expense, indemnify and hold
harmless the Town, its officials, boards, commissions, agents and employees against
any and all claims, suits, causes of action, proceedings, and judgments for damage
arising out of the operation of the cable communications system by Franchisee under
the franchise. These damages shall include, but not be limited to, penalties
arising out of copyright infringements and damages arising out of any failure by
Franchisee to secure consent from the owners, authorized distributors or licensees
or programs to be delivered by the Franchisee's communications system whether or not
any act or omission complained of is authorized, allowed, or prohibited by the
franchise. Indemnified expenses shall include, but not be limited to, all
out-of-pocket expenses, such as costs and attorneys fees, and shall also include the
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reasonable value of any services rendered by the Town Attorney or his or her
assistants or any employees of the Town.
e. No Franchisee shall permit any policy or bond to expire and the
Franchisee, not less. than thirty (30) days prior to its expiration shall deliver to
the Town a substitute renewal or replacement bond or bonds in conformance with the
provisions of this ordinance.
18. LETTER OF CREDIT
a. The Town may at its discretion require that a Franchisee obtain a
letter of credit. When and if the Town should so require, the Franchisee shall
deposit with the Town a letter of credit from a financial institution approved by
the Town in the amount of fifty thousand dollars ($50,000). The letter of credit
may not be revoked or terminated during the term of the franchise except with the
written approval of the Town. The form and the content of such letter of credit
shall be approved by the Town Attorney. The letter of credit shall be used to
insure the faithful performance by the Franchisee of all provisions of the franchise
and of this ordinance; compliance with all orders, permits, and directions of any
agency, commission, board, department, division, or office of the Town having
jurisdiction over its acts or defaults under this license; and the payment by the
Franchisee of any claims, liens, and taxes due the Town or other municipalities
which arise by reason of the construction, operation or maintenance of the system.
b. The letter of credit shall be maintained by the Franchisee at twenty
five thousand dollars ($25,000) during the entire term of the franchise as the Town
may require, even if funds are drawn against it pursuant to this ordinance.
c. The letter of credit shall contain the foil-owing endorsement:
"It is hereby understood and agreed that this letter of credit may not
be cancelled by the surety nor the intention not to renew be stated by the surety
until thirty (30) days after the receipt by the Town Attorney, by certified mail, of
a written notice of such intention to cancel or not to renew.
d. At the Town's option it may draw against the letter of credit for any
unpaid liquidated damages, franchise fees, or other amounts owing to it under the
franchise which are thirty (30) days or more past due. The Town shall notify the
Franchisee in writing at least, ten (10) days in advance of drawing upon the letter
of credit.
19. LIQUIDATED DAMAGES
In the event that the Town finds the Franchisee is in violation of any
material obligation under this ordinance or the franchise, the Town shall notify the
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Franchisee in writing of such apparent violation and require the Franchisee to cure
the default within a reasonable time. The Franchisee shall respond in writing to
the notice of violation within ten (10) working days from receipt of such notice
setting forth the steps taken to correct or propose to correct the violation. The
Town may extend the time for such response upon a showing of just cause by the
Franchisee. Franchisee may, within three (3) days of receipt of such notice, notify
the Town that there is a dispute as to whether a violation or failure has in fact
occurred. Such notice by the Franchisee to the Town shall specify with
particularity the matters disputed by the Franchisee and shall stay the running of
the above described time. The Town shall hear the Franchisee's dispute at a
regularly scheduled meeting within a reasonable period of time. If after hearing
the dispute, the claim is upheld by the Town, Franchisee shall have five (5) days
from such a determination to remedy the violation or failure.
The Town may assess penalties as follows:
a. Up to one hundred dollars ($100) per day for construction related
violations.
b. Up to fifty dollars ($50) per day for recurring violations.
c. Up to five hundred dollars ($500) for other violations.
The penalties set forth herein are in addition to all other rights of the
Town whether reserved by this franchise ordinance or authorized by law and no
action, proceeding or exercise of a right with respect to such penalty shall affect
any other right the Town may have.
20. FORFEITURE AND TERMINATION
a. In addition to all other rights and powers retained by the Town under
this ordinance and any franchise issued pursuant thereto, the Town reserves the
right to forfeit and terminate the franchise and all rights and privileges of the
Franchisee in the event of substantial breach of its terms and conditions. A
substantial breach by the Franchisee shall include, but shall not be limited to, the
following:
1) An uncured violation of any material provision of this ordinance
or franchise issued thereunder, or any material rule, order, regulation, or
determination of the Town made pursuant thereto;
2) An attempt to evade any material provision of the franchise or
practice of any _fraud or deceit upon the cable communications system customers and
subscribers or upon the Town;
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3) Failure to begin or substantially complete any system
construction or system extension as set forth in the franchise;
4) Failure to provide the mix, quality, and level of services
promised in the application or specified in the franchise or a reasonable substitute
therefor;
5) Failure to restore service after ten (10) consecutive days of
interrupted service except when approval of such interruption is obtained from the
Town;
6) Material misrepresentation of fact in the application for, or
during negotiation relating to, the franchise;
7) Failure to provide surety and indemnity as required by the
franchise or this chapter.
b. Heritage shall have no liability to the Town, nor shall the Town have
the right to terminate or revoke this franchise or invoke penalties in accordance
with Section 19 of the Cable Ordinance as a result of any failure of Heritage to
perform, or delay by Heritage in the performance of, its obligations hereunder
(other than to pay the franchise fee and other payments required by this Agreement)
if such failure or delay is caused by factors beyond the control of Heritage,
including without limitation, any flood or other Act of God, laws, regulations,
rules or orders of any governmental agency, sabotage, strikes, lockouts or job
actions, failure or delay in transportation or the unavailability of any product or
material necessary to the performance hereof; provided that Heritage has exercised
all due care to prevent the occurrence of such events which are reasonably
foreseeable, including without limitation, actively pursuing alternative products,
materials and means of transportation. In the event that delay in performance or
failure to perform affects only part of Heritage's capacity to perform, then
Heritage shall perform to the extent it is reasonably able to do so. Heritage
agrees that the excuse for nonperformance under this Section shall last only so long
as the act which excuses performance under this Section shall continue without
interruption. In correcting any causes of nonperformance and in effecting any
partial performance, Heritage shall take all necessary corrective actions as
expeditiously as possible.
c. The Town shall make a written demand by certified mail that the
Franchisee comply with any such provision, rule, order or determination under or
pursuant to the franchise. If a violation of the franchise continues for a period
of thirty (30) days following such written demand without written proof that the
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corrective action has not been taken or is being actively and expeditiously pursued,
the Town-may consider terminating the franchise; provided, however, a written notice
thereof shall be given to the Franchisee at least fifteen (15) days in advance and
the Franchisee must be given an opportunity to appear before the Council to present
its arguments. Should the Town determine, following the public hearing, that the
violation by the Franchisee was the fault of the Franchisee and within the
Franchisee's control, the Town may, by resolution, declare that the franchise be
forfeited and terminated; provided, however, the Town may in its discretion, provide
an opportunity for the Franchisee to remedy the violation and come into compliance
with the franchise and this ordinance so as to avoid the termination.
21. INSOLVENCY
The franchise granted hereunder may be terminated prior to its expiration
if the Town Council finds that Franchisee becomes insolvent, unable or unwilling to
pay its debts as they become due, files a petition for relief under any state or
federal bankruptcy, reorganization, insolvency or similar law (or any such petition
is filed against the Franchisee and is not dismissed without sixty (60) days), is
adjudged as bankrupt, assigns all or a substantial part of its assets for the
benefit of its creditors, all or part of Franchisee's facilities are sold under an
instrument to secure a debt, or a receiver is appointed with respect to all or a
substantial part of the Franchisee's assets or stock.
22. REMOVAL OF CABLE COMMUNICATIONS SYSTEM
In the event this franchise agreement expires, is revoked or otherwise
terminated, Heritage shall remove at its own expense all designated portions of the
cable communications system from all streets and public ways within the Town. In
removing its plant, structures and equipment, Heritage shall refill, at its own
expense, any excavation that shall be made by it and shall leave all public ways in
as good a condition as that prevailing prior to Heritage's removal of its equipment
and appliances without affecting the electrical or telephone or other utility lines,
wires, pipes or attachments. The Town may inspect and approve the condition of the
public ways, cables, wires, attachments and poles after removal. The liability,
indemnity and insurance as provided herein and in the Vail cable television
ordinance shall continue in full force and effect during the period of removal and
until full compliance by Heritage with the terms and conditions of this paragraph
and this ordinance.
In the event of a failure by Heritage to complete any work required by
this franchise agreement or the Vail cable television ordinance, or any other. work
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required by Town law or ordinance within the time as may be established and to the
satisfaction of the Town, the Town may cause such work to be done. Heritage shall
reimburse the Town the costs thereof within thirty (30) days after receipt of an
itemized list of such costs.
23. TRANSFER OF OWNERSHIP OR CONTROL
a. The franchise granted herein is a privilege which is personal to the
Franchisee and to its parent company, TCI, Inc. Except as provided in subsection d
of this Section, neither the franchise, this agreement, nor any rights or
obligations of the Franchisee pursuant to this agreement or in the system shall be
assigned, transferred, pledged, leased, sublet, or mortgaged in any manner, in whole
or in part, to any person, nor shall title thereto, either legal or equitable, or
any right or interest therein, pass to or vest in any person, nor shall any change
in control or ownership in any twelve-month period of a least ten percent (10%) of
the total outstanding securities of the Franchisee or TCI, Inc. occur, either by
acts of the Franchisee or by TCI, Inc., by operation of law, or otherwise. Any such
action completed without the prior consent of the Town shall be null and void. The
grant or waiver of any one or more of such consents shall not render unnecessary any
subsequent consent or consents, nor shall the grant of any such consent constitute a
waiver of any other rights of the Town pursuant to this agreement.
b. The Franchisee shall promptly notify the Town of any proposed action
requiring the consent of the Town pursuant to subsection a, by submitting to the
Town Manager, with a copy to the Town Attorney, a petition requesting the approval
of the Town. The petition shall fully describe the proposed action and such
additional supporting information as the Town Manager or Town Attorney may require
in order to review or evaluate the proposed action. Upon review of the petition,
the Town Manager shall submit the petition to the Town Council together with a
recommendation for action on the petition.
c. After receipt of the petition for consent, the Town Council shall
schedule a public hearing on the petition. For the purpose of determining whether
it will grant its consent, the Town Council may inquire into: (i) the
qualifications of any proposed assignee, transferee, lessee, sublessee or person
acquiring the system in any manner, including without limitation, its legal,
financial and technical abilities, (ii) all matters relevant to whether such person
will adhere to applicable provisions of this agreement, (iii) all matters relevant.
to the public interest in the transfer, and (iv) all other relevant matters. The
Franchisee shall provide all requested assistance to the Town in connection with
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such inquiry and, as appropriate, shall secure the cooperation and assistance of all
persons.-involved in said action.
d. Notwithstanding the prohibition of subsection a of this Section 23:
1) Section 23 shall not prohibit, nor require prior approval with
respect to, any security interest or mortgage, solely for financial purposes
unrelated to a change of control of Franchisee or TCI, Inc., provided that each such
security interest or mortgage shall be subject to the rights of the Town pursuant to
this agreement or applicable law, and no sale or other disposition pursuant to any
such security interest or mortgage shall be permitted except upon consent of the
Town pursuant to paragraph (ii); and
2) Section 23 shall not prohibit any transfer of which the Town was
notified in accordance with subsection b of this section and to which the Town has
given its written approval, expressed by ordinance passed by the Town Council.
e. In deciding whether to approve any proposed transfer under this
Section 23, the Town Council may consider any or all of the factors set forth in
subsection c of this Section 23, and whether the requirements of the franchise
should be upgraded in order to satisfy cable-related community needs, taking into
account the cost of satisfying such needs. The Town Council may condition its
approval of any such transfer upon a commitment to satisfy such cable-related
community needs, taking into account the cost thereof, and upon other appropriate
terms, to satisfy its legitimate concerns as to the factors identified in subsection
c of this Section.
24. SUBSCRIBER FEES AND RATES
a. The initial fees to be charged to subscribers for all services
including installation fee and other one time charges shall be specified in any
franchise agreement issued pursuant hereto.
b. Those fees and charges which are subject to regulation by the Town in
accordance with Federal law shall not be increased without prior approval of the
Town.
c. In order to obtain Town approval for rate increases, the Franchisee
shall file a revised schedule of rates with the Town at least ninety (90) days in
advance of a proposed rate increase. Subscribers shall be notified of the proposed
increases within ten (10) days of notice to the Town. This filing shall specify the
rates or fees to be increased and associated regulations which may affect charges to
the subscribers and the justifications for said increases and charges. The
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Franchisee shall promptly submit any additional supporting information requested by
the Town..
d. Within thirty (30) days of the rate increase filing, the Town shall
schedule a public meeting before the Council to hear subscriber and Franchisee
comment on the proposed increase. Following the public meeting, the Council shall
determine whether or not to grant the proposed increase or a portion thereof prior
to the expiration of said ninety (90) day period.
e. Rates sha11 be just and reasonable, considering the Franchisee's
costs, including a reasonble rate on investment over the remaining term of the
franchise, and shall not give any undue or unreasonable preference or advantage to
any subscriber or class of subscribers.
f. Rates and charges may be reduced at any time without prior Town
approval, provided that the reductions do not result in rates which are unreasonably
discriminatory to any subscriber or class of subscribers. Where temporary
reductions are put into effect for promotional purposes for a specified time period,
a return to the permanent rate shall not be considered a rate increase for the
purpose of this Chapter. The Town shall be notified of all reductions in rates
whether permanent or temporary.
g. Rates and charges not subject to regulation by the Town under Federal
law or regulation may be changed by the Franchisee following a minimum of thirty
(30) days prior notice to the Town and a minimum of thirty (30) days prior notice to
all subscribers of basic service.
25. REPORTS
a. Annual Report
No later than one hundred twenty (120) days after the end of the each
Franchisee's fiscal years, the Franchisee shall file a written report with the Town
which shall include:
1) A summary of the previous calendar year's activities and
development of the system, including but not limited to, services begun or dropped,
number of subscribers, including gains and losses, homes past, and miles of cable
distribution plants and service.
2) A financial statement certified by an officer of Heritage
including a statement of income, a balance sheet, and a statement of sources and
applications of funds. The statement shall include notes that specify all
significant accounting policies and practices upon which it is based, including, but
not limited to, depreciation rates and methodology, overhead and interest system
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cost allocation methods, and basis for interest expense. A summary shall be
provided-comparing the current year with the three previous years. The statement
shall contain a summary of the payments.
3) An annual summary of complaints received.
4) An annual projection of plans for the future.
5) An annual report of the company.
6) A current annual statement of cost of construction by component
category.
7) An ownership report, indicating all persons, who at any time
during the preceding year directly controlled or benefited from an interest in the
franchise of five (5) percent or more of the Grantee.
8) A copy of all the Franchisee's rules and regulations applicable
to subscribers and users of the cable communications system.
b. Additional Reports
The Franchisee shall prepare and furnish to the Town at the times and
in the form prescribed, such additional reports with respect to its operation, as
may be reasonably necessary and appropriate to the performance of any of the rights,
functions or duties of the Town in connection with this ordinance or the franchise
agreement.
26. RECORDS REQUIRED
a. Mandatory Records
The Franchisee shall at all times maintain:
1) A record of all complaints received during the term of the
franchise.
2) A full and complete set of plans, records and "as built" maps
showing the exact location of all cable television system equipment installed or in
use in the Town, exclusive of subscriber service drops.
b. Inspection by Town
Upon reasonable notice to the Franchisee, the Town shall have the
right to inspect all property, maps, and records relating to the cable operations at
any time during normal business hours. All records required by the Town for such
inspection shall be made available within the Town of Uail, Colorado, within a
reasonable time after the request.
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27. FILINGS
-The Franchisee shall mail or deliver a copy of all filings it makes with
State and Federal agencies to the Town Clerk. Said copy shall be mailed or
delivered on the filing date.
28. SERVICE CALLS AND COMPLAINT PROCEDURES
a. During the term of the cable franchise, the Franchisee shall maintain
an office in the Town or in the vicinity thereof which subscribers within the
franchise area may telephone without incurring toll charges. Except in the event of
catastrophic failure, no subscriber's complaint shall remain without investigation
by the Franchisee for more than a twenty-four (24) hour period. The Franchisee will
provide the Town with a name, address and telephone number of the person who will
act as the Franchisee's agent to receive complaints regarding quality of service,
equipment malfunctions and similar matters. The local office shall be open to
receive inquiries or complaints from subscribers during normal business hours, and
in no event less than 9:00 a.m. to 5:00 p.m. Monday through Friday excluding legal
holidays. All employees of the Franchisee whose employment relates to the operation
or maintenance of the system shall be required to carry an identification card and
present same to any subscriber upon request when entering the premises of such
subscriber for the purpose of providing service or otherwise. The Franchisee shall
provide the means to accept complaint calls twenty-four (24) hours a day, seven (7)
days a week. Accurate records shall be kept by the Franchisee summarizing the
nature, extent, time and date by which the complaint was resolved or sought to be
resolved. The Franchisee shall promptly furnish each present or future subscriber
with a letter of instruction explaining the importance and the manner of reporting
complaints and rules and regulations governing the obligations of the Franchisee to
respond to subscriber complaints. Calls or letters involving complaints about
billing and programming will be handled immediately whenever possible. A written
complaint will be retained for two (2) years, including a summary reply. The
complaint filed shall be available for periodic inspection by the Town.
b. Should a subscriber have an unresolved complaint regarding the quality
of the cable television service, equipment malfunctions, or other pertinent matters,
the subscriber shall be entitled to meet jointly with the Town Manager or his
authorized representative and the Franchisee System Manager to fully discuss in an
attempt to resolve such matters, provided, that prior to such meeting, the
subscriber shall clearly state in writing the specific nature, frequency and extent
of the alleged problem and the dates on which the problem has occurred. This
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written complaint shall be filed with the Town Manager, who shall forward a copy of
such complaint to the Franchisee System Manager. Franchisee shall then have five
(5) days after receiving the complaint within which to assess the problem and file a
written response with the Town Manager stating specifically what has been done to
correct the problem. If the subscriber remains unsatisfied after following this
procedure he may then request that such a meeting with the Town Manager or his
authorized representative and Franchisee System Manager be held. When there have
been similar complaints made or where there exists other evidence which in the
judgment of the Town cast doubt on the reliability or quality of cable service, the
Town shall have the right and authority to require the Franchisee to test, analyze
and report on the performance of the system. The Franchisee shall fully cooperate
with the Town in performing such testing and shall prepare results in a report, if
requested, within thirty (30) days after notice. Such report shall include the
following information:
1) The nature of the complaint or problem which precipitated the
tests.
2) What system component was tested.
3) The equipment used and procedures employed in testing.
4) The method, if any, in which the complaint or problem was
resolved.
5) Any other information pertinent to said tests and analysis which
may be required. Where there are recurring service problems, the Town may require
that tests be supervised by a qualified independent professional engineer not on the
permanent staff of the Franchisee. The engineer shall sign all records of special
tests and forward to the Town such records with a report interpreting the results of
the tests and recommending actions to be taken. The costs of said engineer's
services shall be the sole obligation of the Franchisee.
c. In the event that total service to any subscriber is interrupted for
forty-eight (48) or more consecutive hours, except in circumstances for which
advance consent to the interruption is obtained from the Town, the Franchisee shall
provide a twenty percent (20%) pro rata rebate of the monthly fees to affected
subscribers upon the subscriber's request.
In the event that total service to any subscriber is interrupted for
eighty-four (84) or more consecutive hours, except in circumstances for which
advance consent to the interruption is obtained from the Town, the Franchisee shall
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provide one hundred percent (100%) rebate of the monthly fees to affected
subscribers upon the subscriber's request.
For purposes of computing the time of interrupted total service, such
time shall begin when a complaint for interrupted service is received by the
Franchisee or when the Franchisee has actual or constructive notice of the
interruption.
29. SERVICE TO SUBSCRIBERS
A Franchisee shall provide all the following services to subscribers:
a. A basic subscriber television service tier which consists, at minimum,
of any legally required must carry signals an information and weather channel and at
least one (1) public educational and governmental access channel.
b. The Franchisee shall provide leased access channels to the extent
required by Federal law.
c. A Franchisee shall provide equipment directly or through grants for
local program production by all cable users for live and video tape presentation
over the cable television system. The Franchisee shall have no control over the
content of access programs. Any public access channel shall be made available to
any member of the public on a first come, first served, nondiscriminatory basis.
30. LEASED ACCESS
The Franchisee shall make channels available for leased or commercial use
as specified in the franchise agreement consistent with Federal law.
31. PUBLIC DROPS
The Franchisee shall provide without charge within the franchise area one
drop activated for basic subscriber cable television service to each fire station,
public school, police station, public library, municipal building and other such
buildings used for public purposes.
32. LOCK OUT DEVICE
The Franchisee shall provide, for sale or lease, upon request, a lockout
device for use by a subscriber. Such device shall be capable of restricting the
reception of any channel. The lockout device should be made available to all
subscribers requesting it and the charge and availability of this device shall be
made a part of the rate schedule.
33. PROTECTION OF SUBSCRIBER PRIVACY
Franchisee shall protect the Town's privacy consistent with the provision
of 47 U.S.C. 631, as amended.
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34. CONSTRUCTION AND INSTALLATION WORK
a. The Town shall have the right but not the obligation to inspect all
construction and installation work performed by the Franchisee subject to this
Chapter as it shall find necessary to insure compliance with the governing
ordinances and the franchise.
b. All construction, installation, and maintenance must comply with all
Town ordinances including all uniform codes adopted by the Town and all state and
local regulations and good and accepted industry practices.
35. LOCATION OF STRUCTURES, LINES AND EQUIPMENT
a. The Franchisee shall utilize existing conduits and other facilities
whenever possible, and shall not construct or install any new, different or
additional conduits or other facilities whether on public property or on privately
owned property until approval of the property owner or appropriate governmental
authority is obtained. However, the location and installation of any conduit, or
other facility by a Franchisee shall not create a vested interest, and such
structures, or facilities shall be removed, replaced, or modified by a Franchisee at
its own expense whenever the Council or other governmental authority determines that
the public interest so necessitates,
b. All transmission and distribution structures, lines and equipment
installed by the Franchisee within the Town shall be located so as to cause minimum
interference with the proper use of streets, alleys and other public ways and places
and to cause minimum interference with the rights or reasonable convenience of
property owners who adjoin any of the streets, alleys or other public ways or places
and where they will not interfere with any gas, electric, telephone, water or other
preexisting utility facility.
c. All such fixtures in any street or public way shall be placed in full
accordance with the standards set forth in the Municipal Code of the Town of Vail.
d. Cable shall be installed underground at Franchisee's expense.
Previously installed aerial cable shall be placed underground in concert with other
utilities when both the telephone and electrical utilities convert from aerial to
underground construction. Franchisee shall place cable underground in newly platted
areas in concert with both the telephone and electric utilities unless this
requirement is waived by the Town. Equipment shall not be stored on Town right-of-
way.
A preconstruction conference with the property owners will be
completed prior to commencing any underground construction, and the Town shall
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assist and cooperate in such conferences if necessary: All soil, earth, sod or
improvements disturbed by the installation shall be replaced and restored to their
original condition. Patching of highways, roads and driveways will be completed in
accordance with the specifications promulgated by, and subject to inspection and
approval by, Town, County or State engineers, as appropriate.
36. REPLACEMENT OF PAVING
The Franchisee at its own cost and expense and in a manner approved by the
Town shall replace and restore all paving, sidewalks, driveways or surface of any
street or alley or public way disturbed, in as good a condition as before the work
was commenced and shall maintain the restoration in an improved condition for a
period of one (1) year. Failure of the Franchisee to replace or restore such
paving, sidewalk, driveway, or street surface within forty eight (48) hours after
completion of work shall authorize the Town to cause the proper restoration to be
made at the Franchisee's expense.
37. ALTERATION OF STREETS BY TOWN
If the Town shall lawfully decide to alter or change the grade of any
street, alley, or other public way, the Franchisee, upon reasonable notice by the
Town, shall, in a timely manner as requested by the Town, remove and relocate its
poles, wires, cables, underground conduits, and other facilities at its own
expense. If other utilities are compensated, Franchisee shall be entitled to the
same compensation.
38. TRIMMING TREES
A Franchisee shall have the authority to trim trees upon an overhanging of
streets, alleys, sidewalks, and public places of the Town so as to prevent the
branches of such trees from coming into contact with wires and cables and other
television conductors and fixtures of the Franchisee. The Town may require all
trimming to be done under its supervision and direction and at the expense of the
Franchisee.
39. TEMPORARY MOVE OF CABLES
A Franchisee shall on the request of any person holding a valid house
moving permit, temporarily raise or lower its wires or cables to permit the moving
of buildings or other large projects. The expense of such temporary raising or
lowering of wires shall be paid by the person making the request, and the Franchisee
shall have the authority to require such payment in advance. The Franchisee shall
be given not less than forty eight (48) hours advance notice to arrange for such
temporary wire changes.
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40. REFUNDS AND SERVICE TERMINATIONS
a. A Franchisee shall establish and conform to the following policy
regarding refunds to subscribers and users:
If the Franchisee collects a deposit or advance charge on any service
or equipment requested by a subscriber or user, the Franchisee shall provide such
service or equipment within thirty (30) days of the collection of the deposit or
charge or the Franchisee shall refund such deposit or charge within five (5)
business days thereafter. Any converter security deposit collected by the
Franchisee shall be returned to the subscriber twenty-four (24) months after the
installation of such converter, or upon termination of service by the subscriber and
return of such converter undamaged with allowance for reasonable wear and tear and
payment of any outstanding balance due and payable, whichever occurs first. If and
when the Franchisee collects deposits from its subscribers, it shall pay interest on
any deposit required of the subscriber at the agreed rate in effect from time to
time minus two (2) percentage points. The Franchisee may elect to pay such interest
in the form of credits to subscriber accounts. Nothing in this Sect ion shall be
construed:
1) To relieve a Franchisee of any responsibility it may have under
separately executed contracts or agreements with its subscribers or users;
2) As limiting a Franchisee's liability for damages, if any, which
may be imposed under the franchise for the violation or breach of any provisions
thereof; or
3) To limit the Franchisee's liability for damages, if any, because
of its failure to provide the service for which deposit or charge was made.
b. The following requirements shall apply to subscriber disconnection:
1) There shall be no charge for disconnection of any installation,
service or outlet. All cable communications equipment shall be removed within a
reasonable time from a subscriber's property upon the subscriber's request, such
time not to exceed thirty (30) days from the date of request. Franchisee may charge
for adding or deleting channels at the subscriber's request.
2) If any subscriber fails to pay a properly due monthly
subscriber's fee, or any other properly due fee or charge, the Franchisee may
disconnect the subscriber's service; provided, however, that such disconnection
shall not be effected until thirty (30) days after the due date of the monthly
subscriber fee or charges and shall include a minimum five (5) days written notice
to the subscriber of the intent to disconnect.
After disconnection, upon payment in
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full of all proper fees or charges, including the payment of any reconnection
charge;_the Franchisee shall promptly reinstate the service.
41. SERVICE AREA
The Franchisee shall offer full cable television service to all areas of
the Town unless specifically authorized to serve a lesser area. A franchise issued
in accordance with this Ordinance shall require that all dwelling units within the
franchise territory be offered service on the same terms and conditions; provided,
however, multiple family dwelling complexes, apartments, or condominiums may be
served on a master-bill basis; and further, service to motels, hotels, hospitals,
and similar businesses or institutions may be offered on terms and conditions
different from single residence subscribers. In the event that subsequent to the
issuance of a franchise the Town annexes additional territory, a Franchisee shall
extend its cable television services into the annexed area within a reasonable time
of a request by the Town to do so. Such reasonable time shall not be less than nine
(9) months.
42. CONTINUITY OF SERVICE
a. Where a Franchisee rebuilds, modifies, or sells its system, it shall
ensure that all subscribers receive continuous, uninterrupted service regardless of
the circumstances.
b. As long as it is entitled to revenues from the operation of the cable
system, a Franchisee shall maintain continuity of service during any temporary
transition in the franchise, including but not limited to, the following
circumstances:
1) Revocation of the franchise.
2) Nonrenewal of the franchise.
3) Transfer of the cable system to the Town or another entity.
43. TRANSITIONAL OPERATION
In the event a Franchisee continues to operate the system in a transitional
period, with Town acquiescence, following the expansion, revocation, or other
termination of the franchise, it shall be bound by all the terms, conditions, and
obligations of the franchise as if it were in full force and effect. The
terminating Franchisee shall cooperate with the Town and any subsequent Franchisee
in maintaining and transferring service responsibility.
44. PERIODIC REEVALUATION AND RENEGOTIATIONS
a. Since the field of cable communications is rapidly evolving and many
technological, regulatory, financial, marketing, legal, competitive, and other
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changes are likely to occur during a franchise term, a degree of flexibility is
needed in order to achieve and maintain a modern and efficient cable communications
system that adequately serves the public. To this end, the Town with cooperative
assistance from a Franchisee, shall periodically reevaluate the system operation and
negotiate appropriate franchise changes.
b. The Town shall reevaluate the Franchisee's cable operations and
service three (3) years following the award date of the franchise and every three
(3) years thereafter for the life of the franchise. The Franchisee shall cooperate
with the Town in such evaluation and provide information as may be necessary for the
evaluation.
c. Following the public release of a reevaluation report, the Town and
the Franchisee shall meet to discuss the reevaluation and possible means of
improving service to the public. At that time, the parties shall negotiate any
changes in the franchise that may be necessary or desirable. Upon request of the
Town, Franchisee shall, no earlier than ninety (90) days and no later than thirty
(30) days prior to a review and evaluation session, conduct a written survey of
subscribers. Each questionnaire shall be prepared and constructed in good faith so
as to provide measurements of subscribers preferences and satisfaction for:
1) Programming offered by Franchisee at the time the survey is
conducted.
2) Programming generally available to cable subscribers nationally
but not offered by Franchisee at the time the service is conducted.
3) Maintenance and subscriber complaint practices.
As a part of the review and evaluation session, Franchisee shall report in writing
what steps it may be taking to implement the findings of the survey.
d. The Town and the Franchisee may meet at other times to discuss and
negotiate possible changes to the franchise pursuant to an agenda agreed to in
advance by both parties. Such special sessions are intended to provide a mechanism
for effecting franchise changes necessitated by major events affecting cable
communications, such as state or federal legislation, new or revised state or
federal regulations, or an extraordinary change in circumstances.
45. THEFT OF SERVICES AND TAMPERING
a. No person, whether or not a subscriber of the cable television system
may intentionally or knowingly damage or cause to be damaged any wire, cable,
conduit, equipment or apparatus of the Franchisee or commit any act within intent to
cause such damage, or to tap, remove, or tamper with or otherwise connect or
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maintain any wire or device to a wire, cable, conduit, equipment and apparatus or
appurtenances of the Franchisee avitti the intent to obtain and r~aintair: a signal or
impulse from the cable system without authorization from or compensation to the
Franchisee, or to obtain and maintain cable television or other communications
service with the intent to cheat or defraud Franchisee of any lawful charge to which
it is entitled.
b. Any person convicted of violating any provision of this Section is
subject to a fine of not more than five hundred dollars ($500) for each offense.
46. RENEGOTIATION
If any court of competent jurisdiction, the FCC or any state regulatory
body rules, decisions or other action determines prior to the commencement of system
construction, that any material provision of this Ordinance or any franchise granted
pursuant thereto, is invalid or unenforceable, then in such event, the Town shall
retain the right to renegotiate any franchise entered into prior to any such rule,
decision or other action. For the purpose of this section, "Commencement of System
Construction" shall mean the first day that physical construction, including but not
limited to, the placing of cable on poles or underground, actually begins.
47. SEVERABILITY
If any provision, section, subsection, sentence, clause or phrase of this
Ordinance is for any reason held to be unconstitutional, void or invalid or for any
reason unenforceable, the validity of the remaining portions of this Ordinance shall
not be affected thereby, it being the intent of the Town Council in adopting and
approving this Ordinance then no portion hereof or provision or regulation contained
herein shall become inoperative or fail by reason of any unconstitutionality or
invalidity of any other portion, provision or regulation and all provisions of this
Ordinance are declared to be severable.
INTRODUCED, READ AND APPROVED ON FIRST READING THIS day of
the day of
1989 at 7:30 p.m, in the Council Chambers of
the Vail Municipal Building, Vail, Colorado.
Ordered published in full this day of
1989.
Kent R. Rose, Mayor
1989, and a public hearing shall be held on this Ordinance on
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ATTEST:
Pamela A. Brandmeyer, Town Clerk
INTRODUCED, READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED
this day of 1989.
Kent R. Rose, Mayor
ATTEST:
Pamela A. Brandmeyer, Town Clerk
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.4
TOWV uF vAIL ~.lD'LC ~ui~~i`-iUi~lCrliJ~u~ i1~~Uiu~;iui:c
DRAFT 2/13/89
1. This chapter shall be known as the Cable Communications Ordinance.
2. PURPOSE
The purposes of this ordinance are:
a. Provide for the franchising and regulation of cable television within
the Town of Vail.
b. Provide for a cable communications system that will meet the current
needs of the Town and that can be improved and upgraded to meet future needs.
c. Provide for the payment of fees and other valuable consideration to
the Town for the use of the public ways and for the privilege to construct and
operate cable communications systems.
d. Provide for the regulation by the Town of certain rates to be charged
to subscribers for certain cable communications services, as permitted by law.
e. Provide for the development of cable communications as a means to
improve communication between and among the members of the public and public
institutions of the Town.
f. Provide remedies and prescribe by penalties for violation of this
ordinance and any franchise granted hereunder.
3. APPLICABILITY
This ordinance is applicable to any application for a cable franchise filed
on or after the effective date of this ordinance and to any such franchise granted
thereafter.
4. DEFINITIONS
For the purpose of this ordinance the following terms, phrases, words and
the derivations shall have the meanings given herein. When not inconsistent with
the context, words used from the present tense include the future, words in the
plural number include the singular and words in the singular number include the
plural number. The word shall is mandatory and the word may is permissive. Words
not defined shall be given their common and ordinary meanings.
a. "Access channel" shall mean any channel set aside for public use,
educational use, or governmental use without a channel use charge.
b. "Access user" shall mean any person or entity entitled to make use of
an access channel consistent with the intended purpose of the channel.
c. "Application" shall mean a proposal seeking authority to construct and
operate a cable communications system within the Town pursuant to this ordinance.
It shall include the initial proposal plus all related subsequent amendments and
correspondence with the Tow;i.
d. "Basic service" shall mean subscriber cable television services which
includes the delivery of local television broadcast signals as required by the FCC,
access channels, lease channels and local origination channels as covered by the
regular monthly charge paid by all subscribers to any service tier excluding premium
services, two way services, and FM radio services.
e. "Cable television services" shall mean the one way transmission of
video programming and associated non-video signals to subscribers together with
subscriber interaction, if any, which is provided in connection with the video
programming.
f. "Cable communications system" or system shall mean a non-broadcast
facility consisting of a set of transmission paths and associated signal generation,
and reception and control equipment, under common ownership and control, that
distributes or is designed to distribute to public subscribers cable television
services, institutional services, or other communications services, but such terms
shall not include:
1) A facility or combination of facilities that serves only to
retransmit the television signals of one or more television broadcast signals;
2) A facility or combination of facilities that serves only
subscribers in one or more multiple unit dwellings under common ownership, control,
or management, unless such facility or facilities use any public right-of-way;
3) A facility of a common carrier which is subject, in whole or in
part to the provisions of Title II of the Communications Act of 1934, as amended;
except that such facility shall be considered a cable system [other than for the
purposes of 47 U.S.C. 541(c)] to the extent such facility is used and the
transmission of video programming directly to subscribers; or
4) Any facilities of an electric utility used solely for operating
its electric utility system.
g. "Town" is the Town of Vail, Colorado.
h. "Channel" shall mean six (6) Megahertz (Mhz) frequency band which is
capable of carrying either one standard video signal, a number of audio, digital or
other non-video signals or some combination of such signals and which is at least
six (6) Mhz wide.
i. "Connection" shall mean the attachment of the drop to the radio or
television set or other communication device of the subscriber.
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j. "Converter" shall mean an electronic tuning device which converts
transmitted signals to a frequency which permits the reception on an ordinary
television receiver.
k. "Council" or "Town Council" shall mean the governing body of the Town
of Vail.
1. "Drop" shall mean the cable that connects a subscriber's terminal to
the nearest feeder line of the cable communications system.
m. "Easement" shall mean a right to use all public rights-of-way
including public utility easements.
n. "Feeder line" shall mean the coaxial or fiber optic cable running from
the trunk line to line extenders and taps for the purpose of interconnection to
individual subscribers.
o. "FCC" shall mean the Federal Communications Commission.
p. "Gross revenue" shall mean all operating revenue from the cable
communications system derived directly or indirectly by a Franchisee, its
affiliates, subsidiaries, parent, and any person in which the Franchisee has a
financial interest in association wit h-the provision of cable communications
services with the Town, including but not limited to, service tier monthly fees, pay
service fees in excess of programming vendor fees, institutional service fees,
installation and reconnection fees, leased channel fees, converter rentals, studio
rental, production equipment and personnel fees, advertising revenues, copyright
fees; provided, however, that this shall not include any taxes on services furnished
by the Franchisee payable to the State of Colorado or any other governmental unit
and collected by the Franchisee on behalf of said governmental unit, or any revenues
from the provision of cable communications services outside the Town, or any
revenues from sale of capital assets or lease of property for purposes unrelated to
cable communications system.
q. "Installation" means the act of connecting the system from the feeder
cable to the subscriber's receiver so that the installation is to the subscriber's
terminal or receiver.
r. "Institutional services" shall mean one and two way non-entertainment
transmission services for businesses, public agencies and community institutions.
Such services include, but are not limited to, video transmission and voice and data
communications.
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s. "Leased channel" or "leased access channel" shall mean any channel or
part of_a channel, available for commercial use on a fee basis by persons or
entities other than a Franchisee.
t. "Franchise" shall mean the non-exclusive right and authority to
construct, maintain, and operate a cable communications system through use of the
public streets, dedications, public utility easements, or other public right-of-way
or public places in the Town pursuant to a contractual agreement executed by the
Town and a Franchisee.
u. "Franchisee" or "Grantee" refers to an entity authorized to construct,
or operate, or both, a cable communications system within the Town pursuant to this
chapter including any lawful successor, transferee, or assignee of the original
Grantee.
v. "Monitoring" shall mean observing a communications signal carried on a
cable communications system, or the absence of such a signal, by any person without
regard to whether such observation is by visual or electronic means. Monitoring
shall not include system-wide sweeps of the cable communications system for purposes
of verifying the integrity of the system and controlling return path of the
transmissions.
w. "Pay Television" shall mean the delivery over the system of per
channel audio-video signals to subscribers for a fee or charge in addition to the
charge for basic service.
x. "Person" shall mean any person, firm, partnership, association,
corporation, company, or organization of any kind.
y. "Service tier"' shall mean a specific set of cable subscriber services
which are made available as, and only as, a group for purchase by subscribers at a
specific rate for the group.
z. "Street" or "public way" shall mean the surface and the space below
and above any public street, road, highway, path, sidewalk, alley, court, or
easement now or hereafter held by the Town for the purpose of public travel or
public utilities and shall include public easements or rights-of-way.
aa. "Subscriber" shall mean a recipient of cable television service or
other services provided over a cable communications system.
bb. "User" shall mean a party utilizing a cable communications systems
facility for the purpose of production or transmission of material or information to
subscribers.
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5. REQUIREMENT OF A FRANCHISE
~It shall be unlawful to construct, install, maintain; or operate a cable
communications system or part of a cable communications system within the Town
without a valid franchise obtained in accordance with the provisions of this
chapter.
6. GENERAL FRANCHISE CHARACTERISTICS
Any franchise issued in accordance with the provisions of this chapter
shall be deemed to:
a. Authorize use of the public ways for installing cables, wires, lines
and other facilities in order to operate a cable communications system, but shall
neither expressly nor implied be deemed to authorize the Grantee to provide service
to, or install cable, wires, lines, or any other equipment or facilities upon
private property without owner consent, or to utilize publicly or privately owned
utility poles or conduits without a separate agreement with the owners therefore;
b. Be non-exclusive, and shall neither expressly nor implied be deemed to
preclude the issuance of subsequent franchises to operate one or more cable
communications systems within the Town; and
c. Convey no property right to the Franchisee or right to renewal except
as required by Federal and State law.
7. FRANCHISE AS A CONTRACT
A franchise issued pursuant to the provisions of this chapter shall be
deemed to constitute a contract between the Franchisee and the Town. The Franchisee
shall be deemed to have contractually committed itself to comply with the terms,
conditions, and provisions of the franchise documents, and with all rules, orders,
regulations, and determinations applicable to the franchise which are issued,
promulgated, or made pursuant to the provisions of this chapter.
8. CONFLICTS
a. All terms, conditions and provisions of this chapter and the
application for a franchise shall be deemed to be embodied in a franchise, and
conflicts in terms, conditions or provisions between these documents shall be
resolved as follows:
1) The express terms of this chapter shall prevail over conflicting
or inconsistent provisions of the franchise;
2) The express terms of the franchise shall prevail over conflicting
or inconsistent provisions in the application and any request for proposals; and
-5-
3) The express terms of any request for proposals shall prevail over
conflicting or inconsistent provisions in the application for the franchise.
b. The provisions of the franchise shall be liberally construed in order
to effectuate its purposes and objectives consistent with this chapter and the
public interest. In the event one or more provisions of the franchise or this
chapter or subsequently found to be unlawful, null and void or unenforceable, the
Town shall, at its sole option, have the right to consider said provisions severed
from the franchise so as to continue the franchise's effectiveness, in accordance
with the terms of this chapter. Any franchise agreement will be construed under the
laws of the State of Colorado.
9. FRANCHISEE SUBJECT TO POLICE POWER
A Franchisee shall, at all times during the life of a franchise, be subject
to all lawful exercise of the police power by the Town and through such lawful
regulations as the Town shall hereafter enact. The construction, operation, and
maintenance of the system shall also be in full compliance with all other applicable
rules and regulations now in effect or hereafter adopted by the United States, the
State of Colorado, or any agency of said governments.
10. FRANCHISE VALIDITY
A Grantee shall agree, by the acceptance of a franchise, to accept the
validity of the terms and the conditions of this ordinance and the franchise in
their entirety and that the Grantee will not, at any time in any claim or
proceeding, challenge any term or provision of this ordinance or the franchise as
unreasonable or arbitrary or argue that the Town did not have the authority to
impose such term or condition.
11. FILING OF APPLICATIONS
Applications for a cable communications franchise will be considered
pursuant to the following procedures:
a. An application may be filed at any time or pursuant to a request for
proposals issued by the Town.
b. Upon the filing of an application, the Town shall publish notice of
the filing in a newspaper of general circulation in the Town. Any person wishing to
submit any comment on the application shall, within fifteen (15) days of the date of
notice of the first application, file such comment with the Town Manager.
c. All applications to be acceptable for filing must be accompanied by a
filing fee of ten thousand sixty dollars ($10,060). The Town shall apply all filing
fees received against all costs associated with its evaluation of any pending
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applications pursuant to this chapter. In the event that total costs are less than
the total filing fees, the Town shall refund a portion of the filing fee on a
prorated basis for each Applicant within forty-five (45) days after franchise
grant. The Town shall furnish applicant with documentation of all costs incurred at
that time.
12. CONTENT OF APPLICATIONS
To be acceptable for filing, an application must conform to any applicable
request for proposals and all the information specified therein. Where an
application is not filed pursuant to a request for proposals shall contain at
minimum, the following information:
a. Identification of the ownership of the Applicant, if not a natural
person, including the names and addresses of all persons with one (1) percent or
more ownership interest and the ultimate controlling natural persons and
identification of all officers and directors and any other primary business
affiliation of each.
b. An indication whether or not the Applicant, or any entity controlling
the Applicant, including any officer of a corporation or a major stockholder
thereof, has been adjudged bankrupt, has had a cable franchise revoked, or been
found guilty by any court or administrative agency in the United States of:
1) A violation of a security or antitrust law; or
2) A felony or any other crime involving moral turpitude. Identify
any such person or entity and fully explain the circumstances.
c. A demonstration of the Applicant's technical and financial ability to
construct and operate the proposed cable facility.
d. A description of the physical facility proposed, including channel
capacity including one way and two way, if any, the area to be served, a summary of
technical characteristics, and head end and access facilities.
e. A description relating how any construction will be implemented,
identification of areas having above ground or below ground cable facilities, the
proposed construction schedule, and a description where appropriate, indicating how
service will be converted from any existing facility to a new facility.
f. A description of the services to be provided over the system,
including identification of television signals, both broadcast and non-broadcast, to
be carried and all non-television services to be provided initially. Where service
will be offered by tiers, identify the signals or services, or both, to be included
on each tier.
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g. The proposed rates to be charged, including rates for each service
tier, as appropriate, and charges for installation, converters and other services.
h. Information as necessary to demonstrate compliance with all relevant
requirements contained in this chapter.
i. A demonstration stating how the proposal is reasonable to meet the
future cable related community needs and interests. In particular, the application
should describe how the proposal will satisfy the needs as analyzed in any recent
community needs assessment commissioned by the Town.
j. A demonstration how the proposal was designed to be consistent with
all federal and state requirements.
k. Pro forma financial projections for each year of the franchise term.
The projections shall include a statement of income, balance sheet, statement of
sources and use of funds, and schedule of capital additions. All significant
assumptions shall be explained in notes or supporting schedules set accompanying the
projections.
1. A complete list of all cable communications systems in which the
Applicant or a principle thereof holds an equity interest.
m. An affidavit of the Applicant or duly authorized officer thereof
certifying, in a form acceptable to the Town, the truth and accuracy of the
information contained in the application.
n. In the case of an application by an existing Franchisee for renewed
franchise, a demonstration that said Franchisee has substantially complied with the
material terms of the existing franchise and with applicable law.
o. Any person who files an application with the Town for a cable
communications franchise shall forewith, at all times, disclose to the Town, in
writing, the names, addresses, and occupations of all persons who are authorized to
represent or act on behalf of the Applicant in those matters pertaining to the
application. The requirement to make such disclosure shall continue until the Town
shall have rejected an Applicant's application or until an Applicant withdraws its
application.
13. CONSIDERATION OF APPLICATIONS
a. The Town shall consider each application for a franchise with the
applications found to be acceptable for filing and in substantial compliance with
the requirements of this chapter and any applicable request for proposals. In
evaluating an application, the Town will consider, among other things, the
Applicant's past service record in other communities, the nature of the proposed
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facilities and services, including rates to be charged therefor, and whether the
proposal- is adequate to meet the future cable related community needs and interests
of the citizens of the Town. Where the application is for a renewed franchise, the
Town shall consider whether:
1) The cable operator has substantially complied with the material
terms of the existing franchise and with applicable law;
2) The quality of the operator's service, including signal quality,
response to consumer complaints, and billing practices, but without regard to the
mix, quality, or level of cable services or other services provided over the system,
has been reasonable in light of community needs;
3) The operator has the financial, legal and technical ability to
provide the services, facilities and equipment as set forth in the operator's
proposal; and
4) The operator's proposal is reasonable to meet the future cable
related community needs and interests, taking into account the cost of meeting such
needs and interests.
b. Where the Town determines that an Applicant's proposal, including the
proposed service area, would serve the public interest, and may grant a franchise to
the Applicant. The franchise agreement will constitute a contract, freely entered
into, between the Town and the Grantee. Said franchise agreement shall incorporate
by reference the relevant provisions of this chapter. Any such franchise must be
approved by ordinance of the Town Council pursuant to the ordinances of the Town and
the Charter of the Town.
c. In the course of considering an application for renewed franchise, the
Council shall hold a public hearing, consistent with the provisions of 47 U.S.C.,
Section 626 as existing or as may from time to time be amended.
d. A franchise granted pursuant to this chapter shall not take effect
until the Applicant pays a grant fee to the Town. The grant fee shall be equal to
the Town's reasonable direct costs in the franchising process, less the application
filing fee received. The Town shall provide to the Grantee a statement summarizing
such costs prior to the execution of the franchise.
14. ACCEPTANCE
A franchise and its terms and conditions shall be accepted by a Grantee by
written instrument, in a form acceptable to the Town Attorney, and filed with the
Town Clerk within thirty (30) days after the granting of the franchise by the Town.
In its acceptance, the Grantee shall declare that it has carefully read the terms
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and conditions of this ordinance and the franchise and accepts all of the terms and
conditions of this ordinance and the franchise and agrees to abide by same. In
accepting a franchise, a Grantee shall indicate that it has relied upon its own
investigation of all relevant facts, that it was not induced to accept the franchise
and that it accepts all reasonable risks relating to the interpretation to the
franchise.
15. FRANCHISE TERM
The term of a franchise shall be as specified in the franchise agreement,
but it shall not exceed (_) years. If a Franchisee seeks authority to
operate a cable system in the Town beyond the term of its franchise, it shall file
an application for a renewed franchise not later than thirty (30) months prior to
the expiration of its franchise.
16. FRANCHISE FEE
a. The franchise fee in consideration of the privilege granted under a
franchise for the use of the public ways and the privilege to construct and operate
a cable communications system, shall pay to the Town five (5) percent of its annual
gross revenues during the period of its operation under the franchise.
b. A Franchisee shall file with the Town, thirty (30) days after the last
day of each quarter, a financial statement showing the gross revenues received by
the Franchisee during the preceding quarter. A Franchisee shall pay the quarterly
portion of the franchise fee to the Town on or before the time such financial
statement is due to be filed. A Franchisee shall also file, no later than ninety
(90) days after the end of each of the Franchisee's fisca] years, the Franchisee's
financial statements for the preceding year, certified by an officer of the
Franchisee. Any franchise fee payment in adjustment for any shortfall of the total
quarterly payments for the year shall be made at that time. Adjustments for any
overpayment shall be by credit to subsequent quarterly payments.
c. The Town shall have the right consistent with the provisions of this
chapter to inspect a Franchisee's income records, to audit any and all relevant
records, and to recompute any as determined to be payable under the franchise and
this ordinance.
d. In the event that any franchise payment is not received by the Town on
or before the applicable date, interest shall be charged from such due date at an
annual interest rate then chargeable for unpaid federal income taxes (26 U.S.C.,
Section 6621). In addition to the foregoing, the Franchisee shall pay a late charge
of five (5) percent of the amount of such payment. Interest and late charges will
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not be chargeable to the Franchisee for additional payment required under the yearly
adjustment, provided that such payment does not exceed ten (10) percent of the total
monthly payments made during the year. In the event such payment exceeds ten (10)
percent, the Franchisee shall be liable for interest and late charges for the entire
amount.
e. In the event a franchise is revoked or otherwise terminated prior to
its expiration date, the Franchisee shall file with the Town, within ninety (90)
days of the date of revocation or termination, an audited financial statement
showing the gross revenues received by the Franchisee since the end of the previous
year and shall make adjustments at that time for the franchise fees due up to the
date of revocation or termination.
17. INSURANCE, BONDS, INDEh1NITY
a. Upon the granting of a franchise and following simultaneously the
filing of the acceptance of the franchise and at all times during the term of the
franchise including the time for removal of facilities or management as a trustee as
provided for herein, the Franchisee shall obtain, pay all premiums for, and deliver
to the Town written evidence of payment of premiums for and the originals of the
following:
1) A general comprehensive public liability policy or policies
indemnifying, defending, and saving harmless the Town, its officers, boards,
commissions, agents, or employees from any and all claims by any person whatsoever,
including the costs, defenses, attorneys fees, and interest arising therefrom on
account of injury to or death of a person or persons occasioned by the operations of
the Franchisee under the franchise herein granted, or alleged to have been so caused
or occurred, with a minimum liability of one million dollars ($1,000,000) per
personal injury or death of any one (1) person and three million dollars
($3,000,000) for personal injury or death of any two (2) or more persons in any one
(1) occurrence. The policy shall be endorsed adding coverage against all claims for
personal injury liability offenses.
2) A property damage insurance policy or policies indemnifying,
defending, and saving harmless the Town, its officers, boards, commissions, agents,
and employees from and against any and all claims by any person whatsoever,
including the costs, defenses, attorneys fees, and interest arising therefrom, for
property damage occasioned by the operation of the Franchisee under the franchise
herein granted, or alleged to have been so caused or occurred, with a minimum
liability of five hundred thousand dollars ($500,000) for property damage to_the
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property of any one (1) person and one million dollars ($1,000,000) for property
damage to the property of two (2) or more persons in any one (1) occurrence.
3) A performance bond or bonds in favor of the Town with good and
sufficient surety approved by the Town in the sum set forth in the franchise
agreement conditioned upon the faithful performance and discharge of the obligations
imposed by this ordinance and the franchise awarded hereunder from the date hereof.
The amount of the bond may be reduced as any construction that is required is
completed, consistent with the franchise agreement.
b. The bond requirements set forth above shall no longer apply upon
completion of construction and inspection by the Town as follows:
(1) Franchisee shall give notice to the Town at such time as
Franchisee has completed the construction.
(2) Upon receipt of notice, the Town shall have sixty (60) days to
receive a written report from an independent engineer; provided, however, if the
Town fails to receive such a written report within the sixty (60) days the
completion of construction shall be deemed to have taken place, unless the failure
to receive such a report is due to unforeseen events, acts of God, or events beyond
the reasonable control of the Town.
(3) Notwithstanding anything to the contrary, the Town may condition
completion of the construction upon receipt of a written report from an independent
engineer. The completion of the system upgrade or system rebuild shall not be
deemed to have taken place until the independent engineer reports the following:
(a) All construction or improvements contemplated by the
Franchisee have been completed or otherwise satisfactorily resolved;
(b) Satisfactory test results using the technical standards set
forth in this franchise agreement at up to ten (10) widely separated subscriber
drops selected by the independent engineer and using the following tests:
1) Signal level
2) Hum
3) Bypass responsive system
4) Carrier to noise of system
5) TASO picture quality (2 or better)
(c) Compliance with all applicable codes and standards.
(d) Carriage of the basic service as available, as set forth in
this franchise ordinance.
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c. All bonds and insurance policies called for herein shall be in a form
satisfac-tory to the Town Attorney. The To~~dn may 3t any time, if it deems itself
insecure, require a Franchisee to provide additional sureties to any and all bonds
or to replace existing bonds with new bonds for good and sufficient surety approved
by the Town.
d. A Franchisee shall, at its sole cost and expense, indemnify and hold
harmless the Town, its officials, boards, commissions, agents and employees against
any and all claims, suits, causes of action, proceedings, and judgments for damage
arising out of the operation of the cable communications system by Franchisee under
the franchise. These damages shall include, but not be limited to, penalties
arising out of copyright infringements and damages arising out of any failure by
Franchisee to secure consent from the owners, authorized distributors or licensees
or programs to be delivered by the Franchisee's communications system whether or not
any act or omission complained of is authorized, allowed, or prohibited by the
franchise. Indemnified expenses shall include, but not be limited to, all
out-of-pocket expenses, such as costs and attorneys fees, and shall also include the
reasonable value of any services rendered by the Town Attorney or his or her
assistants or any employees of the Town.
e. No Franchisee shall permit any policy or bond to expire and the
Franchisee, not less than thirty (30) days prior to its expiration shall deliver to
the Town a substitute renewal or replacement bond or bonds in conformance with the
provisions of this ordinance.
18. LETTER OF CREDIT
a. The Town may at its discretion require that a Franchisee obtain a
letter of credit. When and if the Town should so require, the Franchisee shall
deposit with the Town a letter of credit from a financial institution approved by
the Town in the amount of fifty thousand dollars ($50,000). The letter of credit
may not be revoked or terminated during the term of the franchise except with the
written approval of the Town. The form and the content of such letter of credit
shall be approved by the Town Attorney. The letter of credit shall be used to
insure the faithful performance by the Franchisee of all provisions of the franchise
and of this ordinance; compliance with all orders, permits, and directions of any
agency, commission, board, department, division, or office of the Town having
jurisdiction over its acts or defaults under this license; and the payment by the
Franchisee of any claims, liens, and taxes due the Town or other municipalities
which arise by reason of the construction, operation or maintenance of the system.
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b. The letter of credit shall be maintained by the Franchisee at twenty
five thousand dollars ($25,000) during the entire term of the franchise as the Town
may require, even if funds are drawn against it pursuant to this ordinance.
c. The letter of credit shall contain the following endorsement:
"It is hereby understood and agreed that this letter of credit may not
be cancelled by the surety nor the intention not to renew be stated by the surety
until thirty (30) days after the receipt by the Town Attorney, by certified mail, of
a written notice of such intention to cancel or not to renew.
d. At the Town's option it may draw against the letter of credit for any
unpaid liquidated damages, franchise fees, or other amounts owing to it under the
franchise which are thirty (30) days or more past due. The Town shall notify the
Franchisee in writing at least ten (10) days in advance of drawing upon the letter
of credit.
19. LIQUIDATED DAMAGES
In the event that the Town finds the Franchisee is in violation of any
material obligation under this ordinance or the franchise, the Town shall notify the
Franchisee in writing of such apparent violation and require the Franchisee to cure
the default within a reasonable time. The Franchisee shall respond in writing to
the notice of violation within ten (10) working days from receipt of such notice
setting forth the steps taken to correct or propose to correct the violation. The
Town may extend the time for such response upon a showing of just cause by the
Franchisee. Franchisee may, within three (3) days of receipt of such notice, notify
the Town that there is a dispute as to whether a violation or failure has in fact
occurred. Such notice by the Franchisee to the Town shall specify with
particularity the matters disputed by the Franchisee and shall stay the running of
the above described time. The Town shall hear the Franchisee's dispute at a
regularly scheduled meeting within a reasonable period of time. If after hearing
the dispute, the claim is upheld by the Town, Franchisee shall have five (5) days
from such a deter°mination to remedy the violation or failure.
The Town may assess penalties as follows:
a. Up to one hundred dollars ($100) per day for construction related
violations.
b. Up to fifty dollars ($50) per day for recurring violations.
c. Up to five hundred dollars ($500) for other violations.
The penalties set forth herein are in addition to all other rights of the
Town whether reserved by this franchise ordinance or authorized by law and no
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action, proceeding or exercise of a right with respect to such penalty shall affect
any other right the Town may have.
It shall not be considered a violation should the failure to comply with
any obligation of this ordinance or the franchise agreement occur without fault of
the Franchisee or occurs as a result of circumstances beyond the Franchisee's
control.
20. FORFEITURE AND TERMINATION
a. In addition to all other rights and powers retained by the Town under
this ordinance and any franchise issued pursuant thereto, the Town reserves the
right to forfeit and terminate the franchise and all rights and privileges of the
Franchisee in the event of substantial breach of its terms and conditions. A
substantial breach by the Franchisee shall include, but shall not be limited to, the
following:
1) An uncured violation of any material provision of this ordinance
or franchise issued thereunder, or any material rule, order, regulation, or
determination of the Town made pursuant thereto;
2) An attempt to evade any material provision of the franchise or
practice of any fraud or deceit upon the cable communications system customers and
subscribers or upon the Town;
3) Failure to begin or substantially complete any system
construction or system extension as set forth in the franchise;
4) Failure to provide the mix, quality, and level of services
promised in the application or specified in the franchise or a reasonable substitute
therefor;
5) Failure to restore service after ten (10) consecutive days of
interrupted service except when approval of such interruption is obtained from the
Town;
6) Material misrepresentation of fact in the application for, or
during negotiation relating to, the franchise;
7) Failure to provide surety and indemnity as required by the
franchise or this chapter.
8) If Heritage becomes insolvent, unable or unwilling to pay its
debts or is adjudged to be bankrupt.
b. None of the foregoing shall constitute a major breach if a
violation occurs which is without fault of the Franchisee or occurs as a result of
circumstances beyond the Franchisee's control
The Franchisee shall not be excused
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by mere economic hardship nor by the nonfeasance or malfeasance of its directors,
officers, agents, or employees; provided, however, that damage to equipment causing
service interruption shall be deemed to be the result of circumstances beyond the
Franchisee's control if it is caused by any negligent act or unintended omission of
its employees, assuming proper training or agents, assuming reasonable due diligence
in their selection, or sabotage or vandalism or malicious mischief by its employees
or agents. The Franchisee shall bear the burden of proof in establishing the
existence of such conditions.
c. The Town shall make a written demand by certified mail that the
Franchisee comply with any such provision, rule, order or determination under or
pursuant to the franchise. If a violation of the franchise continues for a period
of thirty (30) days following such written demand without written proof that the
corrective action has not been taken or is being actively and expeditiously pursued,
the Town may consider terminating the franchise; provided, however, a written notice
thereof shall be given to the Franchisee at least fifteen (15) days in advance and
the Franchisee must be given an opportunity to appear before the Council to present
its arguments. Should the Town determine, following the public hearing, that the
violation by the Franchisee was the fault of the Franchisee and within the
Franchisee's control, the Town may, by resolution, declare that the franchise be
forfeited and terminated; provided, however, the Town may in its discretion, provide
an opportunity for the Franchisee to remedy the violation and come into compliance
with the franchise and this ordinance so as to avoid the termination.
21. FORECLOSURE
Upon the foreclosure or other judicial sale of all or a susbstantial part
of the cable communications system facilities, or upon the termination of any lease
covering all or a substantial part of the cable communications system, or upon the
occasion of additional events which effectively cause termination of the system's
operation, the Franchisee shall notify the Town of such fact, and such notification
or the occurrence of such terminating events shall be treated as a notification that
a change in control of the franchise has taken place and the provisions of this
ordinance governing the consent of the Town to such change and control other
franchise shall apply.
22. RECEIVERSHIP
The Town shall have the right to cancel their franchise issued one hundred
twenty (120) days after the appointment of a receiver, or trustee, to take over and
conduct the business of the Franchisee, whether in receivership, reorganization,
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bankruptcy, or other action or proceeding unless such receivership or trusteeship
shall have been vacated prior to the expiration of said one hundred twenty (120)
days, or unless:
a. Within one hundred twenty (120) days after the election or
appointment, such receiver or trustee shall have fully complied with all of the
provisions of this ordinance and remedied any defaults thereunder; and
b. Within said one hundred twenty (120) days, such receiver or trustee
shall have executed an agreement duly approved by the court having jurisdiction
whereby such receiver or trustee assumes and agrees to be bound by each and every
provision of this ordinance and the franchise granted to the Franchisee.
23. REMOVAL OF CABLE COMMUNICATIONS SYSTEM
At the expiration of the term for which a franchise is issued hereunder is
granted or upon its termination as provided herein, the Franchisee shall forewith,
upon notice by the Town, remove at its own expense all designated portions of the
cable communications system from all streets and public ways within the Town, and
shall restore said streets and public ways to their former condition; provided,
however, the Franchisee shall have the right to sell its physical plant to a
subsequent Franchisee, subject to Town approval, in which case said plant need not
be removed. If the Franchisee fails to remove its facilities upon request, the Town
may perform the work at the Franchisee's expense.
24. TRANSFER OF OWNERSHIP OR CONTROL
a. A franchise issued pursuant to this Chapter shall not be sold,
assigned, transferred, leased, or disposed of, either in whole or in part, either by
involuntary sale or by voluntary sale, merger, consolidation, or hypothicated in any
manner, nor shall title thereto, either legal or equitable, or any right, interest
or property therein pass to or vest in any person or entity, or the controlling
interest in any corporation holding a franchise hereunder be changed without the
prior consent of the Town, and then only under such conditions as may be required by
the Town. The Franchisee shall notify promptly the Town of any proposed change in,
or transfer of, or acquisition by any other party of control of the Franchisee. The
word "control" as used herein is not limited to major stockholders, but includes
actual working control in whatever manner exercised. A rebuttable presumption that
a transfer of control has occurred shall arise upon the acquisition or accumulation
by any person or group or persons of ten (10) percent of the voting shares of the
Franchisee. Every change, transfer, or acquisition of control of the Franchisee
shall make the franchise subject to cancellation unless and until the Town shall
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have consented thereto. For the purpose of determining whether it shall consent to
such change, transfer, or acquisition of control, the Town may inquire into the
qualifications of the prospective controlling party, and the Grantee shall assist
the Town in any such inquiry. The consent of the Town shall not be unreasonably
withheld.
b. The consent of approval of the Town Council to any transfer of the
grant shall not constitute waiver or release of the rights of the Town in and to the
public ways, and any transfer shall, by its terms, be expressly subordinate to the
terms and conditions of the ordinance and franchise agreement.
' 25. SUBSCRIBER FEES AND RATES
a. The initial fees to be charged to subscribers for all services
including installation fee and other one time charges shall be specified in any
franchise agreement issued pursuant hereto.
b. Those fees and charges which are subject to regulation by the Town in
accordance with Federal law shall not be increased without prior approval of the
Town.
c. In order to obtain Town approval for rate increases, the Franchisee
shall file a revised schedule of rates with the Town at least ninety (90) days in
advance of a proposed rate increase. Subscribers shall be notified of the proposed
increases within ten (10) days of notice to the Town. This filing shall specify the
rates or fees to be increased and associated regulations which may affect charges to
the subscribers and the justifications for said increases and charges. The
Franchisee shall promptly submit any additional supporting information requested by
the Town.
d. uJithin thirty (30) days of the rate increase filing, the Town shall
schedule a public meeting before the Council to hear subscriber and Franchisee
comment on the proposed increase. Following the public meeting, the Council shall
determine whether or not to grant the proposed increase or a portion thereof prior
to the expiration of said ninety (90) day period.
e. Rates shall be just and reasonable, considering the Franchisee's
costs, including a reasonble rate on investment over the remaining term of the
franchise, and shall not give any undue or unreasonable preference or advantage to
any subscriber or class of subscribers.
f. Rates and charges may be reduced at any time without prior Town
approval, provided that the reductions do not result in rates which are unreasonably
discriminatory to any subscriber or class of subscribers. Where temporary
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reductions are put into effect for promotional purposes fora specified time period,
a return to the permanent rate shall not be considered a rate increase for the
purpose of this Chapter. The Town shall be notified of all reductions in rates
whether permanent or-._temporary.
g. Rates and charges not subject to regulation by the Town under Federal
law or regulation may be changed by the Franchisee following a minimum of thirty
(30) days prior notice to the Town and a minimum of thirty (30) days prior notice to
all subscribers of basic service.
26. REPORTS
a. Annual Report
No later than one hundred twenty (120) days after the end of the each
Franchisee's fiscal years, the Franchisee shall file a written report with the Town
which shall include:
1) A summary of the previous calendar year's activities and
development of the system, including but not limited to, services begun or dropped,
number of subscribers, including gains and losses, homes past, and miles of cable
distribution plants and service.
2) A financial statement certified by an officer of Heritage
including a statement of income, a balance sheet, acid a statement of sources and
applications of funds. The statement shall include notes that specify all
significant accounting policies and practices upon which it is based, including, but
not limited to, depreciation rates and methodology, overhead and interest system
cost allocation methods, and basis for interest expense. A summary shall be
provided comparing the current year with the three previous years. The statement
shall contain a summary of the payments.
3) An annual summary of complaints received.
4) An annual projection of plans for the future.
5) An annual report of the company.
6) A current annual statement of cost of construction by component
category.
7) An ownership report, indicating all persons, who at any time
during the preceding year directly controlled or benefited from an interest in the
franchise of five (5) percent or more of the Grantee.
8) A copy of all the Franchisee's rules and regulations applicable
to subscribers and users of the cable communications system.
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b. Additional Reports
The Franchisee shall prepare and furnish to the Town at the times and
in the form prescribed, such additional reports with respect to its operation, as
may be reasonably necessary and appropriate to the performance of any of the rights,
functions or duties of the Town in connection with this ordinance or the franchise
agreement.
27. RECORDS REQUIRED
a. fYlandatory Records
The Franchisee shall at all times maintain:
1) A record of all complaints received during the term of the
franchise.
2) A full a.nd complete set of plans, records and "as built" maps
showing the exact location of ail cable television system equipment installed or in
use in the Town, exclusive of subscriber service drops.
b. Inspection by Town
Upon reasonable notice to the Franchisee, the Town shall have the
right to inspect all records relating to the cable operations at any time during
normal business hours. All records required by the Town for such inspection shall
be made available within the Town of Vail, Colorado, within a reasonable time after
the request.
28. FILINGS
The Franchisee shall mail or deliver a copy of all filings it makes with
State and Federal agencies to the Town Clerk. Said copy shall be mailed or
delivered on the filing date.
29. SERVICE CALLS AND COf~1PLAINT PROCEDURES
a. During the term of the cable franchise, the Franchisee shall maintain
an office in the Town or in the vicinity thereof which subscribers within the
franchise area may telephone without incurring toll charges. Except in the event of
catastrophic failure, no subscriber's complaint shall remain without investigation
by the Franchisee for more than a twenty-four (24) hour period. The Franchisee will
provide the Town with a name, address and telephone number of the person who will
act as the Franchisee's agent to receive complaints regarding quality of service,
equipment malfunctions and similar matters. The local office shall be open to
receive inquiries or complaints from subscribers during normal business hours, and
in no event less than 9:00 a.m. to 5:00 p.m. Monday through Friday excluding legal
holidays. The Franchisee shall provide the means to accept complaint calls twenty
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four (24) hours a day, seven (7) days a week. Accurate records shall be kept by the
Franchisee summarizing the nature, extent, time and date by which the complaint was
resolved or sought to be resolved. The Franchisee shall promptly furnish each
present or future subscriber with a letter of instruction explaining the importance
and the manner of reporting complaints and rules and regulations governing the
obligations of the Franchisee to respond to subscriber complaints. Calls or letters
involving complaints about billing and programming will be handled immediately
whenever possible. A written complaint will be retained for t~rlo (2) years,
including a summary reply. The complaint filed shall be available for periodic
inspection by the Town.
b. Should a subscriber have an unresolved complaint regarding the quality
of the cable television service, equipment malfunctions, or other pertinent matters,
the subscriber shall be entitled to meet jointly with the Town Manager or his
authorized representative and the Franchisee System Manager to fully discuss in an
atte-npt to resolve such matters, provided, that prior to such meeting, the
subscriber shall clearly state in writing the specific nature, frequency and extent
of the alleged problem and the dates on which the problem has occurred. This
written complaint shall be filed with the Town Manager, who shall for~dard a copy of
such complaint to the Franchisee System Manager. Franchisee shall then have five
(5) days after receiving the complaint within which to assess the problem and file a
written response with the Town Manager stating specifically what has been done to
correct the problem. If the subscriber remains unsatisfied after following this
procedure he may then request that such a meeting with the Town Manager or his
authorized representative and Franchisee System Manager be held. t"lhen there have
been similar complaints made or where there exists other evidence which in the
judgment of the Town cast doubt on the reliability or quality of cable service, the
Town shall have the right and authority to require the Franchisee to test, analyze
ar~d report on the performance of the system. The Franchisee shall fully cooperate
with the Town in performing such testing and shall prepare results in a report, if
requested, within thirty (30) days after notice. Such report shall include the
following information:
1) The nature of the complaint or problem which precipitated the
tests.
2) l~lhat system component was tested.
3) The equipment used and procedures employed in testing.
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~) The method, if any, in !~~nich the complaint or problem !~ras
resolved.
5) Any other information pertinent to said tests and analysis which
may be required. Glhere there are recurring service problems, the Town may require
that tests be supervised by a qualified independent professional engineer not on the
permanent staff of the Franchisee. The engineer shall sign all records of special
tests and forward to the Town such records with a report interpreting the results of
the tests and recommending actions to be taken. The costs of said engineer's
services shall be the sole obligation of the Franchisee.
30. SERVICE TO SUBSCRIBERS
A Franchisee shall provide all the following services to subscribers:
a. A basic subscriber television service tier which consists, at
minimum, of any legally required must carry signals an information and weather
channel and at least one (1) public educational and governmental access channel.
b. The Franchisee shall provide leased access channels to the extent
required by Federal law.
c. A Franchisee shall provide equipment directly or through grants
for local program production by all cable !rsers for live and video tape presentation
over the cable television system. The Franchisee shall have no control over the
content of access programs. Any public access channel shall be made available to
any member of the public on a first come, first served, nondiscriminatory basis.
31. LEASED ACCESS
The Franchisee shall make channels available for leased or commercial use
as specified in the franchise agreement consistent with Federal law.
32. PUBLIC DROPS
The Franchisee shall provide without charge within the franchise area one
drop activated for basic subscriber cable television service to each fire station,
public school, police station, public library, municipal building and other such
buildings used for public purposes.
33. LOCK OUT DEVICE
The Franchisee shall provide, for^ sale or lease, upon request, a lockout
device for use by a subscriber. Such device shall be capable of restricting the
reception of any channel. The lockout device should be made available to all
subscribers requesting it and the charge and availability of this device shall be
made a part of the rate schedule.
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34. PGOTECTI^^ OF SUBSCRIBER PRI1lA`'Y
Franchisee shall protect the Town's privacy consistent with the provision
of 47 U.S.C. 631, as amended.
35. CONSTRUCTION AND INSTALLATION WORK
a. The Town shall have the right to inspect all construction and
installation work performed by the Franchisee subject to this Chapter as it shall
find necessary to insure compliance with the governing ordinances and the franchise.
b. All construction, installation; and maintenance must comply with all
Town ordinances including all uniform codes adopted by the Town and ail state and
local regulations and good and accepted industry practices.
36. LOCATION OF STRUCTURES, LIfdES AND EQUIPf~9ENT
a. The Franchisee shall utilize existing poles, conduits and other
facilities whenever possible, and shall not construct or install airy new, different
or additional poles, conduits or other facilities whether on public property or on
privately owned property until approval of the property owner or appropriate
governmental authority is obtained. However, the location and installation of any
pole, conduit, or other facility by a Franchisee shall not create a vested interest,
and such poles, structures, or facilities shall be removed, replaced, or modified by
a Franchisee at its own expense ~r~henever the Council or other governmental authority
determines that the public interest so necessitates.
b. All transmission and distribution structures, lines and equipment
installed by the Franchisee within the Town shall be located so as to cause minimum
interference with the proper use of streets, alleys and, other public ways and places
and to cause minimum interference with the rights or reasonable convenience of
property owners who adjoin any of the streets, alleys or other public ways or places
and where they will not interfere with any gas, electric, telephone, a~rater or other
preexisting utility facility.
c. All such poles and other fixtures in any street or public tvay shall be
placed in full accordance with the standards set forth in the f~unicipal Code of the
Town of Vail.
d. Cable shall be installed underground at Franchisee's expense where
both the existing telephone and electrical utilities are already underground.
Previously installed aerial cable shall be placed undergr°ound in concert with other
utilities when both the telephone and electrical utilities convert from aerial to
underground construction. Franchisee shall place cable underground in newly platted
areas in concert with both the telephone and electric utilities unless this
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requirement is ~~raived by the Town.
way.
37. REPLACEh1ENT OF PAVING
Equipment shall not be stored on Town right-of-
The Franchisee at its own cost and expense and in a manner approved by the
Town shall replace and restore all paving, sidewalks, driveways or surface of any
street or alley or public way disturbed, in as good a condition as before the work
was commenced and shall maintain the restoration in an improved condition for a
period of one (1) year. Failure of the Franchisee to replace or restore such
paving, sidewalk, driveway, or street surface within forty eight (48) hours after
completion of work shall authorize the Town to cause the proper restoration to be
made at the Franchisee's expense.
38. ALTERATION OF STREETS BY TOWN
If the Town shall lawfully decide to alter or change the grade of any
street, alley, or other public way, the Franchisee, upon reasonable notice by the
Town, shall, in a timely manner as requested by the Town, remove and relocate its
poles, wires, cables, underground conduits, and other facilities at its o~vn
expense. If other utilities are compensated, Franchisee shall be entitled to the
same compensation.
39. TRIMMING TREES
A Franchisee shall have the authority to trim trees upon arl overhanging of
streets, alleys, sidewalks, and public places of the Town so as to prevent the
branches of such trees from coming into contact with wires and cables and other
television conductors and fixtures of the Franchisee. The Town may require all
trimming to be done under its supervision and direction and at the expense of the
Franchisee.
40. TEMPORARY f~IOVE OF CABLES
A Franchisee shall on the request of any person holding a valid house
moving permit, temporarily raise or lower its wires or cables to permit the moving
of buildings or other large projects. The expense of such temporary raising or
lowering of wires shall be paid by the person making the request, and the Franchisee
shall have the authority to require such payment in advance. The Franchisee shall
be given not less than forty eight (48) hours advance notice to arrange for such
temporary wire changes.
41. REFUNDS AND SERVICE TERMINATIONS
a. A Franchisee shall establish and conform to the following policy
regarding refunds to subscribers and users:
-24-
"If the Franchisee collects a ~?enesit o~, advance charge en anv se~~•~,~ic~
or equipment requested by a subscriber or user, the Franchisee shall provide such
service or equipment within thirty (30) days of the collection of the deposit or
charge or the Franchisee shall refund such deposit or charge within five (5)
business days thereafter. Nothing in this Section shall be construed:
1) To relieve a Franchisee of any responsibility it may have under
separately executed contracts or agreements with its subscribers or users;
2) As limiting a Franchisee's liability for damages, if any, which
may be imposed under the franchise for the violation or breach of any provisions
thereof; or
3) To limit the Franchisee's liability for damages, if any, because
of its failure to provide the service for which deposit or charge was made.
b. The following requirements shall apply to subscriber disconnection:
1) There shall be no charge for disconnection of any installation,
service or outlet. All cable communications equipment shall be removed within a
reasonable time from a subscriber's property upon the subscriber's request, such
time not to exceed thirty (30) days from the date of request. Franchisee may charge
for adding or deleting channels at the subscriber's request.
2) If any subscriber fails to pay a properly due monthly
subscriber's fee, or any other properly due fee or' charge, the Franchisee may
disconnect the subscriber's service; provided, however, that such disconnection
shall not be effected until thirty (30) days after the due date of the monthly
subscriber fee or charges and shall include a minimum five (5') days written notice
to the subscriber of the intent to.disconnect: After disconnection, upon payment in
full of all proper fees or charges, including the payment of any reconnection
charge, the Franchisee shall promptly reinstate the service.
42. SERVICE AREA
The Franchisee shall offer full cable television service to all areas of
the Town unless specifically authorized to serve a lesser area. A franchise issued
in accordance vrith this Ordinance shall require that all dwelling units within the
franchise territory be offered service on the same terms and conditions; provided,
however, multiple family dwelling complexes, apartments, or condominiums may be
se-°ved on a master-bill basis; and further, service to motels, hotels, hospitals,
and similar businesses or institutions may be offered on terms and conditions
different from single residence subscribers. In the event that subsequent to the
issuance of a franchise the Town annexes additional territory, a Franchisee shall
-25-
extend its cable television services into the annexed area within a reasonable tune
of a request by the Town to do so. Such reasonable time shall not be less than nine
(g) months.
43. CONTINUITY OF SERVICE
a. 4lhere a Franchisee rebuilds, modifies, or sells its system, it shall
ensure that all subscribers receive continuous, uninterrupted service regardless of
the circumstances.
b. As long as it is entitled to revenues from the operation of the cable
system, a Franchisee shall maintain continuity of service during any temporary
transition in the franchise, including but not limited to, the following
circumstances:
1) Revocation of the franchise.
2) Nonrenewal of the franchise.
3) Transfer of the cable system to the Town or another entity.
44. TRANSITIONAL OPERATION
In the event a Franchisee continues to operate the system in a transitional
period, with Town acquiescence, following the expansion, revocation, or other
termination of the franchise, it shall be bound by all the terms, conditions, and
obligations of the franchise as if it were in full force and effect. The
terminating Franchisee shall cooperate with the Town and any subsequent Franchisee
in maintaining and transferring service responsibility.
45. PERIODIC REEVALUATION AND RENEGOTIATIONS
a. Since the field of cable communications is rapidly evolving and many
technological, regulatory, financial, marketing, legal, competitive, and other
changes are likely to occur during a franchise term, a degree of flexibility is
needed in order to achieve and maintain a modern and efficient cable communications
system that adequately serves the public. To this end, the Town with cooperative
assistance from a Franchisee, shall periodically reevaluate the system operation and
negotiate appropriate franchise changes.
b. The Town shall reevaluate the Franchisee's cable operations and
service three (3) years fo11o4ving the award date of the franchise and every three
(3) years thereafter for the life of the franchise. The Franchisee shall cooperate
with the Town in such evaluation and provide information as may he necessary for the
evaluation.
c. Following. the public release of a reevaluation report, the Toa~n and
the Franchisee shall meet to discuss the reevaluation and possible means of
-26-
improving service to the public. At that time, the parties shall negotiate any
changes~in the franchise that may be necessary or desirable. Upon request of the
Town, Franchisee shall, no earlier than ninety (90) days and no later than thirty
(30) days prior to a review and evaluation session, conduct a avritten survey of
subscribers. Each questionnaire shall be prepared and constructed in good faith so
as to provide measurements of subscribers preferences and satisfaction for:
(1) Programming offered by Franchisee at the time the survey is
conducted.
(2) Programming generally available to cable sr.rbscribers nationally
but not offered by Franchisee at the time the service is conducted.
(3) Maintenance and subscriber complaint practices.
As a part of the revier^~ and evaluation session, Franchisee shall report in r^~riting
what steps it may be taking to implement the findings of the survey.
d. The Town and the Franchisee may meet at other times to discuss ar~d
negotiate possible changes to the franchise pursuant to an agenda agreed to in
advance by both parties. Such special sessions are intended to provide a mechanism
for effecting franchise changes necessitated by major events affecting cable
communications, such as state or federal legislation, new or revised state or
federal regulations, or an extraordinary change in circumstances.
46. THEFT OF SERVICES AND TAMPERING
a. No person, +r~hether or not a subscriber of the cable television system
Wray intentionally or knowingly damage or cause to be damaged any ~^iire, cable,
conduit, equipment or apparatus of the Franchisee or comrnit any act within intent to
cause such damage, or to tap, remove, or tamper r^~ith or otherwise connect or
maintain any wire or device to a wire, cable, conduit, equipment and apparatus or
appurtenances of the Franchisee with the intent to obtain and maintain a signal or
impulse from the cable system without authorization from or compensation to the
Franchisee, or to obtain and maintain cable television or other communications
service with the intent to cheat or defraud Franchisee of any lawful charge to which
it is entitled.
b. Any person convicted of violating any provision of this Section is
subject to a fine of not more than five hundred dollars ($500) for each offense.
47. RENEGOTIATION
If any court of competent jurisdiction, the FCC or any state regulatory
body rules, decisions or other action determines prior to the commencement of system
construction, that any material provision of this Ordinance or any franchise granted
-27-
pursuant thereto; is invalid or unenforceable, then in such event, the Town shall
retain the right to renegotiate any franchise entered into prior to any such rule,.
decision or other action. For the purpose of this section, "Commencement of System
Construction" shall mean the first day that physical construction, including but not
limited to, the placing of cable on poles or underground, actually begins.
48. SEVERABILITY
If any provision, section, subsection, sentence, clause or phrase of this
Ordinance is for airy reason held to be unconstitutional, void or invalid or for any
reason unenforceable, the validity of the remaining portions of this Ordinance shall
not be affected thereby, it being the intent of the Town Council in adopting and
approving this Ordinance then no portion hereof or provision or regulation contained
herein shall become inoperative or fail by reason of any unconstitutionality or
invalidity of any other portion, provision or regulation and all provisions of this
Ordinance are declared to be severable.
INTRODUCED, READ AND APPROVED ON FIRST READING THIS day of
the day of
1989 at 7:30 p.m. in the Council Chambers of
the Vail Municipal Building, Vail, Colorado.
Ordered published in full this day of
. 1989.
Kent R. Rose, ~~layor
ATTEST:
Pamela A. Brandmeyer, Towri Clerk
INTRODUCED, READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED
this day of
1989.
Kent R. Rose, Mayor
ATTEST:
Pamela A. Brandmeyer, Town Clerk
1989, and a public hearing shall be held on this Ordinance on
-28-
Q A
FRANCHISE AGREEMENT CHANGES
Draft dated 5/23/89
pg 1 - line 11 - "for a fifteen (15) year term" deleted
pg 1 - P1, A., line 1 - "granted for itself and its successors and assigns," deleted
pg 1 - P1, A., line 5 - "easements are broad" changed to read "easements as are
broad"
pg 1 - P1, C., line 3, "in, on, over, under, or upon, across and along" changed to
read "under"
pg 2 - P1 - D. added in its entirety
pg 2 - P2, A., line 1 - "it will comply" changed to read "it shall comply"
pg 2 - P3, A., line 8 - "Town's rights to accrue franchise" changed to read "Town's
rights to accrue and collect franchise"
pg 3 - P3, D., line 6 - "expenses in connection" changed to read "expenses including
attorneys fees in connection"
pg 3 - P3, E., line 2 - "deposit, insurance" changed to read "deposit, letter of
credit, insurance"
pg 3 - P4 - entire para. all new wording
pg 3 - P5, line 6 - "on the same or similar terms" deleted
pg 4 - P7, A., line 1 - "non-broadcast" deleted
pg 4 - P7, E. - deleted in its entirety
pg 6 - P8, A. - last para. added in its entirety
pg 6 - P9, A. -last TWO paragraphs deleted
pg 6 - P9, B. - new para. B SYSTEM UPGRADE - all new
pg 6 - P9, C. - old para. B. is now C.
C., lines 1 & 2 - "channel which shall be shared with a weather data
service" changed to read "channel to be used exclusively by the Town"
pg 7 - P9, D. - old para. C. is now D.
D., line 9 - "a new" is changed to read "one more"
pg 7 - P9, E. - old para. D. is now E.
E., line 2 - "rules or any rules" changed to read "rules, as amended from
time to time, or any rules"
E., last line - after end of sentence "... consistently good quality.",
rest of E. is all new
Q'
FRANCHISE AGREEMENT CHANGES (page 2)
Draft dated 5/23/89
pg 7 - P9, F. - old para. E. is now F.
pg 7 - P9, G. - old para. F. is now G.
G. - line 3 - "subscriber pulling," changed to "subscriber polling,"
pg 8 - P9, G. - old para. F. is now G.
pg 8 - P9, H. - old para. H. is now I.
pg 8 - P9, I. - old para. I. is now J.
pg 8 - P9, K. and L. - both are all new
pg 8 - P10, line 1 - "the right to inspect" changed to read "the right, but not the
obligation, to inspect"
line 2 - "subject to the provisions of this franchise" enclosed in ( )
line 3 - "insure" changed to read "determine"
line 7 - "not interfere" changed to read "not materially interfere"
line 9 - "Town may also have the right to have" changed to read "Town
shall also have the right, but not the obligation, to have"
line 10 - "subject to the provisions of. this franchise" enclosed in ( )
line 14 - "testing establishes" changed to read "testing indicates"
pg 9 - P11, A. - last sentence added
pg 9 - P12, A., line 4 - "entities pursuant" changed to read "entities, and
individuals at no cost pursuant"
pg 10 - P12, D. - D. ACCESS FINANCING deleted in its entirety
pg 10 - P12, E. - old para. E. is now D.
D., line 4 - "Manager" deleted
pg 10 - P13, B., line 1 - first sentence changed to read "New cable shall be
installed underground at Heritage's cost."
B. - second para. is all new
pg 11 - P13, E., line 1 - "whether the call is" changed to read "whether or not the
call is"
pg 12 - P16, line 2 - "federal" deleted
4
FRANCHISE AGREEMENT CHANGES (page 3)
Draft dated 5/23/89
pg 13 - P18, A., line 6 - "fee as set forth" changed to read "fee payable to the
Town as set forth"
pg 13 - P18, D., line 2 - fee .designated as $10,000
pg 14 - P19, B. -first para. designated as 1); para. 2) is all new
pg 14 - P21 FORFEITURE OR REVOCATION - deleted in its entirety
pg 16 - P25 (P24 in new document) - last sentence beginning "Heritage shall
maintain ..." added
pg 17 - P29 FORCE MAJEURE - deleted in its entirety
pg 18 - P33 (P31 in new document), line 1 - "agreement and all attachments" changed
to read "agreement, plus correspondence and proposal of Heritage, all attachments"
HERITAGE CABLEVISION and TOWN OF VAIL
FRANCHISE AGREEMENT
DRAFT 5/23/89
This agreement is made and entered into on 1989
by and between the TOWN OF VAIL, Colorado, a Colorado municipal corporation ("the
Town") and CABLEVISION VI, INC. D/B/A HERITAGE CABLEVISION ("Heritage").
WHEREAS, the Town is authorized to grant one or more non-exclusive, revocable
franchises to construct, reconstruct, operate and maintain a cable television system
within the Town; and
WHEREAS, the Town has received a request for renewal of the existing franchise
from Heritage; and
WHEREAS, the Town, after public hearings and due evaluation, has determined that
it is in the best interest of the Town and its residents to renew the franchise of
Heritage.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein the parties do mutually agree as follows:
1. GRANT OF FRANCHISE
A. Heritage is hereby subject to the terms and conditions of this
franchise agreement, and the franchise ordinance, the right, privilege and authority
to construct, operate, maintain and reconstruct a cable television system within the
streets, alleys, easements or such easements as are broad enough to allow the
installation of cable television facilities, and public ways of the Town. Heritage
shall provide a modern and uniform Town-wide cable communications system to the
residents and institutions of the Town in accordance with this franchise agreement.
B. This franchise is subject to Chapter of the Town of Vail
Municipal Code and other ordinance provisions now in effect or hereinafter made
effective. Nothing in this agreement shall be deemed to waive the requirements of
the various codes and ordinances of the Town regarding permits, fees to be paid, or
manner of construction.
C. For the purpose of operating and maintaining a cable television system
in the Town, Heritage may erect, install, construct, repair, replace, reconstruct,
and retain under the public streets, available easements, alleys and ways within the
Town, such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, pedestals, attachments, and other property and equipment as are
necessary and appurtenant to the operation of the cable television system in
conformance with the Town's specifications. Prior to any construction or
alteration, however, Heritage shall file plans with the appropriate Town agencies
and utility companies and receive written approval before proceeding.
D. Upon receipt of any notice to the effect that Heritage is required to
comply with laws or regulations inconsistent with the provisions of this franchise,
or upon a determination that any provision hereof is for any reason invalid, the
Town shall have the right to modify or amend any section or sections of this
franchise to such reasonable extent as may be necessary to carry out the full intent
and purpose of this franchise. The Town may terminate this franchise in the event
it determines that substantial or material compliance with the then existing terms
of the franchise have been frustrated by any governmental, administrative, or
judicial decision.
2. REPRESENTATIONS AND WARRANTIES OF HERITAGE
A. Heritage represents and warrants that it shall comply with all
provisions of the franchise;
B. Heritage represents and warrants that neither it nor its
representatives or agents have committed any illegal acts or engaged in any wrongful
conduct contrary to, or in violation of any federal, state or local law or
regulation in connection with the obtaining of this franchise;
C. Heritage represents and warrants that it is a corporation licensed to
do business in Colorado and has full right and authority to enter into and fully
perform the franchise;
D. Heritage represents and warrants that all corporate action required to
authorize the acceptance of the franchise and execution and delivery of this
agreement and all other documents to be executed and/or delivered by Heritage
pursuant to the franchise and to authorize the performance by Heritage of all of its
obligations under the franchise, and all such other documents to be executed and/or
delivered by Heritage have been validly and duly acted on and are in force and
effect;
E. Heritage represents and warrants that the franchise and all other
documents executed and/or delivered by Heritage have been duly accepted and
executed;
F. Heritage represents and warrants that it has carefully read the terms
and conditions of the franchise and accepts the obligations imposed by the terms and
conditions of the franchise.
-2-
3. EFFECTIVE DATE OF FRANCHISE; EFFECT UPON EXISTING FRANCHISE
A. Heritage shall have thirty (30) days from the date of adoption of this
ordinance to accept the grant of a franchise by executing the franchise agreement.
Such acceptance by Heritage shall be deemed the grant of this franchise for all
purposes and immediately upon the taking affect of this franchise agreement, the
prior franchise granted to Heritage or their predecessor in interest on
19 by the passage of Ordinance No. shall be superseded and have no
further force and effect; provided however, vested rights relating to billings and
the Town's rights to accrue and collect franchise fees shall not be affected
thereby; and provided, further, that any criminal proceedings commenced under or
pursuant to said franchise shall in no manner be affected. In the event acceptance
does not take place within thirty (30) days or such other time as the Town might
allow, this franchise shall be null and void.
B. Upon acceptance of this franchise, Heritage shall be bound by all the
terms and conditions contained herein. Heritage shall provide all services and
offerings.specifically set forth herein to provide cable television services within
the Town.
C. With its acceptance, Heritage also shall deliver to the Town a
certified resolution of Heritage evidencing its power and authority to accept the
franchise. Such document shall also describe officers authorized to accept on
behalf of Heritage.
D. With its acceptance, Heritage shall also pay all costs and expenses,
including attorneys fees, incurred by the Town in connection with the renewal
process. The Town shall provide an itemized statement to Heritage. Costs or
expenses of the Town not identified at that time shall be paid promptly by Heritage
upon receipt of an itemized, statement from the Town. It is the intent of the Town
and Heritage that the Town be reimbursed for all costs and expenses, including
attorneys fees, in connection with the granting of the franchise including any
subsequent expenses due to delays or litigation pertaining to the grant of the
franchise.
E. With its acceptance, Heritage shall also deliver any security deposit,
letter of credit, insurance certificates, performance bonds, and equipment grant
required herein.
4. TERM
The franchise granted hereunder shall be for a term of ten (10) years from
If Heritage properly completes the upgrade for the system
-3-
to sixty (60) channels in accordance with Section and the Town has
determined in accordance with Section that such upgrade has been
satisfactorily completed, then the term of the franchise shall be extended by five
(5) years to
Heritage.
5. FRANCHISE NON-EXCLUSIVE
without additional action by the Town or
This franchise shall not be construed as any limitations upon the right of
the Town to grant to other persons, rights, privi
the rights, privileges and authorities herein set
streets, alleys, or public ways or public places.
the right to grant at any time during the term of
if any, such additional franchises, for any cable
appropriate.
6. CABLE TELEVISION ORDINANCE INCORPORATED
leges, or authorities similar to
forth, in the same or other
The Town specifically reserves
this agreement or renewal thereof,
television system as it deems
All terms, conditions, and provisions of the Town of Vail cable television
ordinance shall be deemed to be embodied in this franchise agreement, and the
express terms of the ordinance shall prevail over conflicting or inconsistent
provisions of this franchise agreement.
7. DEFINITIONS
The following words and phrases, when used in this agreement, shall, for
the purpose hereof have the meanings ascribed to them in this Section.
A. "Cable communications system" or system shall mean a facility
consisting of a set of transmission paths and associated signal generation, and
reception and control equipment, under common ownership and control, that
distributes or is designed to distribute to public subscribers cable television
services, institutional services, or other communications services, but such terms
shall not include:
1) A facility or combination of facilities that serves only to
retransmit the television signals of one or more television broadcast signals;
2) A facility or combination of facilities that serves only
subscribers in one or more multiple unit dwellings under common ownership, control,
or management, unless such facility or facilities use any public right-of-way;
3) A facility of a common carrier which is subject, in whole or in
part to the provisions of Title II of the Communications Act of 1934, as amended;
except that such facility shall be considered a cable system [other than for the
-4-
purposes of 47 U.S.C. 541(c)] to the extent such facility is used and the
transmission of video programming directly to subscribers; or
4) Any facilities of an electric utility used solely for operating
its electric utility system.
B. "Channel" shall mean a six (6) megahertz (MHz) frequency band which is
capable of carrying either one (1) standard video signal, a number of audio, digital
or other non-video signals, or some combination of such signals.
C. "Downstream" shall mean signals originating at the head end or hub and
transmitted to subscribers.
D. "Earth station" shall mean equipment used to receive signals from or
transmit signals to a communications satellite.
E. "Franchise grant ordinance" shall mean the ordinance granting a
franchise to a Grantee.
F. "Head end" shall mean the facility, including antennas and associated
electronics which receives, controls, and switches the electronic information
transmitted over the cable communications system.
G. "Residential service" shall mean any service delivered by the cable
communications system principally to subscribers in their dwelling units.
H. "School" shall mean any duly accredited non-profit educational
institution, including primary and secondary schools, colleges and universities,
both public and private.
I. "State-of-the-art" shall mean any cable communications system,
components, or equipment accepted and used in the cable communications industry
which is the most modern and advanced equipment generally accepted and used in the
cable communications industry.
J. "Wire tapping" shall mean the unauthorized reception of a
communications signal.
K. "Two-way" shall mean the simultaneous transmission of upstream and
downstream signals through a cable communications system.
8. SERVICE AREA
A. Line Extension
Heritage shall offer cable television service to all areas of the Town
in accordance with the following line extension policy. In the city limits of the
Town as they stand on~-
1989, Heritage shall, provide
service to any dwelling unit or commercial subscriber that is served by the existing
system and in other areas where there are at least thirty (30) residential dwelling
-5-
units.or commercial units per mile of cable plant. In other areas annexed to the
Town or developed after 1989, Heritage shall provide
service to any new dwelling unit or commercial subscriber where there are at least
twenty (20) dwelling:_units or commercial units per proposed additional cable plant
mile.
Further, in other areas with less than thirty (30) dwelling units or
commercial units per proposed cable plant mile, Heritage shall offer a cost-sharing
arrangement with residents.
Heritage's share (set herein as
per subscriber)
shall be recalculated annually and based upon then-current costs for labor and
materials. Residents desiring cable television services shall contribute the
remaining costs for line extensions to provide services to their dwelling units.
The Town and Heritage shall derive future contribution amounts based on average
annual costs for thirty (30) homes per mile, it being understood that the costs for
underground not be the same.
Any contribution-in-aid of construction provided by a subscriber
pursuant to this Section shall be promptly refunded to such subscriber without
interest if, and at such time as, such subscriber's premises is served by system
distribution lines which pass at least forty (40) occupied dwelling units per linear
mile of cable plant; provided, however, that no such refund need be made if the date
on which such refund should be due is more than five (5) years from the date
Heritage initially provided service to such subscriber. At the time such
contribution-in-aid is accepted, Heritage shall notify, in writing, each such
subscriber from whom such contribution-in-aid is accepted that the amount paid by
the subscriber as contribution-in-aid is refundable under the terms and conditions
hereof. Heritage shall obtain acknowledgment, in writing, from each such subscriber
that the notification has been given, along with the address to which such
reimbursement shall be made. It shall be the responsibility of each subscriber to
keep Heritage informed, in writing, of the current address of the subscriber to
which reimbursement should be mailed, and Heritage will be deemed to be in
compliance with this section, by mailing, certified mail, return receipt requested,
the reimbursement to the subscriber at the last address furnished by the
subscriber. If such reimbursement is returned to Heritage as undeliverable, the
reimbursement shall. belong to Heritage.
B. Heritage shall provide service to all annexed areas of the Town within
nine (9) months of obtaining easements and appropriate permits. Heritage shall make
-6-
every reasonable effort to obtain easements within three (3) months after the
effective date of such annexation. If easements are unavailable due to
circumstances beyond the control of Heritage, Heritage shall make every reasonable
effort to find an alternative route to provide cable television service. Heritage
shall report periodically to the Town on its progress in providing service to
annexed areas of the Town.
9. SYSTEM DESIGN AND CAPACITY
A. Present System Overview
Heritage will maintain the existing cable communication system as a
state-of-the-art system. Parties understand and agree that at the time of this
franchise that system consists of a residential network with a capacity of three-
hundred (300) MHz. The present system is currently capable of carrying thirty-six
(36) channels and there are currently thirty-one (31) activated channels. The broad
categories are video and other services as set forth in Attachment A. The current
system transmits all basic channels unscrambled so that they are available to
cable-ready TV sets and video cassette recorders without the need for a converter.
BTSC standard stereo shall be broadcast on all those channels as indicated in
Exhibit attached hereto and made a part hereof.
B. System Upgrade
Heritage shall upgrade the system to provide the capability for a
minimum of sixty (60) activated six-megahertz (6 MHz) video channels downstream
throughout the system no later than December 31, 1993.
The upgrades referred to in this Subsection B shall be deemed
completed when:
1) The system is capable of passing 35 or 60 usable and operational
video channels, as applicable, in a downstream mode throughout the system;
2) The system meets the standards and specifications set forth in
Exhibit D attached hereto ("system standards") at such test locations (which shall
not be fewer than three) within the Town limits as shall be mutually agreed upon by
the Town and Heritage;
3) Heritage has certified to the Town that construction is complete
pursuant to 1) and 2) above and has given to the Town a certified copy of all test
results evidencing that the system meets system standards.
The Town may, within thirty (30) days of the certification referred to
in Subsection 6.3), conduct its own tests to determine whether the system meets
system standards. If such tests indicate that system standards have not been met,
-7-
Heritage shall promptly correct all deficiencies revealed by the Town's tests and
construction shall not be deemed complete until Heritage has done so and again
certified completion of construction pursuant to Subsection 6.3). The Town's tests
shall be performed at the Town's cost, unless such tests indicate deficiencies
requiring correction, in which event such test of the Town and any subsequent test
of the Town under this Subsection B shall be paid for by Heritage. All tests of the
system by Heritage and the Town shall be conducted in a professional manner in
accordance with the highest industry standards and by a competent professional
engineer.
C. Community Information Service
Heritage shall provide a community information service channel to be
used exclusively by the Town. Heritage shall provide to the Town, free of charge,
one (1) character generator with two (2) remote keyboards with a minimum of
fifty-eight (58) page memory and color graphics. Said equipment shall be located in
such public buildings as may be designated by the Town with ability to transmit
signals to the head end. The equipment will be installed by Heritage and remain the
property of Heritage, and all maintenance, except that required because of gross
neglect or intentional injury by the Town shall be responsibility of Heritage,
provided that the equipment is delivered and picked up at Heritage's repair
facility. The community information channel and the equipment referred to above
shall be provided within six (6) months from the receipt of a request therefore from
the Town.
D. Public Educational and Governmental Access
In addition to the community service channel, Heritage shall provide,
at no cost to the users, at least one (1) specially designated channel available for
governmental, educational and public access. In the event that said specially
designated access channel is in use by the general public, local educational
authorities and local governmental units during seventy-five (75) percent of the
weekdays (Monday through Friday) for seventy-five (75) percent of the time for six
(6) consecutive weeks for non-character generated programming using film, video or
live telecasting, and the Town makes a demand for use of an additional channel for
access, Heritage shall have six (6) months in which to make available one (1) more
specially designated access channel.
E. Technical Standards
The minimum technical standards shall be the minimum standards set
forth by the Federal Communications Commission in their rules, as amended from time
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to time, o~~~ any rules that supersede such rules. Regardless of the technical
standards that may be applicable the system shall be capable of providing to
subscribers video and aural signals of consistently good quality. Should the FCC
cease to preempt the Town's authority to set technical standards, the minimum
technical standards shall be as follows:
1) Heritage shall construct the system in accordance with the
technical specifications in Exhibit and performance standards set forth herein
using materials of good and durable quality. All work involved in construction,
installation, maintenance and repair of the system shall be performed in a safe,
thorough and reliable manner.
2) The system shall be maintained in accordance with the highest
accepted standards of the industry to the end that the subscriber may receive the
highest and most desirable form of service.
a) The system shall be capable of passing the entire UHF and FM
spectrum, and it shall have the further capability of converting UHF for the
distribution to subscribers on the VHF band.
b) The system shall be capable of transmitting and passing the
entire spectrum of color television signals without material degradation of color,
fidelity and intelligence.
c) The system shall be designed and capable of twenty-four (24)
hours per day continuous operation.
d) The system shall be capable of and will produce a picture
upon any subscriber's standard production television screen in black and white or
color (provided the subscriber's television set is capable of producing a color
picture) that is undistorted and free from ghost images and accompanied by proper
sound, assuming the subscriber's television set is in good repair, and that the
television broadcast signal transmission is satisfactory. In any event, the picture
produced shall be as good as the state-of-the-art and the off-the-air signal
received permit.
e) The system shall transmit or distribute signals of adequate
strength to produce good pictures with good sound in all television receivers of all
subscribers without causing cross modulation in the cables or interference with
other electrical or electronic systems.
f) Heritage shall not allow its cable or other operations to
interfere with the television reception of persons not served by Heritage, nor shall
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the system interfere with, obstruct or hinder in any manner the operation of the
various ut; i itiLs Set,V111Q the ~esi,aei~ts o` `he ?owr~.
g) Heritage shall continue, throughout the term of this
franchise, to maintain the technical standards and quality of service set forth in
this ordinance.
3) In addition to the FCC required annual proof of performance
testing, the Town may require periodic tests of the technical performance of the
system to enforce full compliance with the FCC's minimum technical specifications
and performance standards as set forth in Exhibit attached to this ordinance.
The reasonable cost of said test shall be paid by Heritage. Heritage shall not be
responsible for the cost of testing which occurs more frequently than once a year.
4) The system shall be installed and maintained in such a manner so
as not to unreasonably interfere with police, fire and other licensed radio
communications, noncable television reception, lawful use of citizen band, ham
radios and other lawful communications media.
F. Satellite Earth Station
The system configuration shall include satellite earth station
capability to receive signals simultaneously from all operational U.S. domestic
satellites carrying at least four (4) non-duplicated non-premium cable entertainment
services. Heritage shall provide a sufficient number of earth stations to receive
signals from all operational U.S. communications satellites that generally carry
programs available to cable systems throughout the life of the franchise.
G. Capacity for Interactive Residential Services
The cable communications system shall have the capacity for
interactive residential services including, but not limited to, security alarm
monitoring, home shopping, energy management, video techs, subscriber polling, video
games, meter reading, and one way or interactive education. The cable system shall
also have the capability for providing shop at home and electronic banking
services. All customer equipment necessary for such services such as addressable
interactive converters, home terminals and home detectors shall be provided to
subscribers by Heritage in accordance with established and uniform rate schedules.
H. Standby Power
Heritage shall provide standby power generating capacity at the cable
communications system control center and at major trunk line locations. Heritage
shall maintain standby power systems supplies, rated for at least four (4) hours
duration, throughout the distribution networks.
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I. Frequency Availability
Heritage shall use its best efforts to assure the availability of
appropriate frequencies to be used on the cable communications system. Heritage
shall at all times during the term of the franchise comply with all rules and
regulations promulgated by the FCC regarding frequency usage and cable television
system requirements.
J. Addressable Capability
The cable communications system shall be addressable with capability
for users to acquire signal security for selected channels and subchannels through
techniques such as signal scrambling or encoding. The addressable features shall be
activated at such time as services are provided.
K. Technological Improvements to System
1) Heritage shall have a continuing obligation to improve and expand
the system consistent with changes and developments in the cable communications
industry, the public interest, prudent business judgment and reasonable economic
considerations.
2) In the event that either (i) Heritage, its parent companies or
affiliates have installed technological improvements in at least 25 percent of the
other cable television systems owned by Heritage, its parent companies or
affiliates, or (ii) at least 25 percent of the cable television franchisees or cable
television license or permit holders in cities in the State of Colorado with
populations in the range between 25,000 and 75,000 have cable television systems
which increase channel capacity or bidirectional capacity, provide improvements in
technical performance, provide for interconnection or provide other substantial
improvements over that provided to the Town in this franchise, then Heritage shall
make said improvements available to the Town system subscribers. Heritage shall
promptly notify the Town Manager of the occurrence of either such event.
3) If the Town Council determines that either of the events
described in Subsection 2 have occurred, then the Town Attorney shall send written
notice thereof to Heritage specifying (i) the particular improvements so required,
and (ii) the date by which such improvements shall be completed, which shall not be
unreasonable taking into account the estimated time actually necessary to install
such improvements.
L. Emergency Override
The system shall include an "emergency alert" capability which will
permit the Mayor or the Mayor's designated representative in the event of an
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emergency affecting the public health, safety or welfare to interrupt signals
distributed over the system by Heritage and override the audio oT ali channels or
allow for video crawl over all such channels, in either case for the purpose of
delivering messages. necessitated by such emergency. The Town Council in
consultation with the Mayor and Heritage shall establish rules and regulations
governing the exercise of power by the Mayor pursuant to this Section.
10. RIGHT OF INSPECTION
The Town shall, at its own expense, have the right, but not the obligation,
to inspect all construction and installation work performed (subject to the
provisions of this franchise) and shall make such tests as it shall find necessary
to determine compliance with the terms of this agreement and other pertinent
provisions of the law; provided, however, that the Town shall be permitted to charge
Heritage its usual and customary fees for the inspection of construction in public
rights-of-way; and provided, further, that such inspection and tests shall not
materially interfere with the provision of subscriber services. Any delays in
construction due to the inspection shall not be reason for default. The Town shall
also have the right, but not the obligation, to have all construction and
installation work performed (subject to the provisions of this franchise) reviewed
by an independent engineer: to determine whether all construction or improvements
are in compliance with the franchise; all technical standards are being met; and
there is compliance with all applicable Town codes and standards. If such testing
indicates that the system does not meet all required technical standards, Heritage
shall bear the expense for such testing.
11. SYSTEM SERVICES
A. Initial Residential Subscribers Services and Programming
Attachment A which is incorporated herein by reference describes the
composition of the basic service tier and other services which Heritage shall
initially provide. In accordance with the Cable Act, Heritage shall, for the term
of the franchise, maintain the mix, quality and level of programming set forth in
Attachment A. However, Heritage agrees that it shall, at all times during the term
of the franchise, provide one (1) national public radio station to subscribers.
B. Leased Access Channels
Heritage shall offer leased access channel capacity at such terms and
conditions and rates as may be negotiated with each lessee subject to the
requirements of Section 612 of the Cable Act of 1984 (47 U.S.C., Section 612) as
amended.
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12. ACCESS AND INSTITUTIONAL SERVICES
In order to develop local programming, Heritage hereby agrees to provide
the following:
A. Local Programming Production Equipment as set forth in Attachment B
hereof or Comparable Equipment
All equipment so provided shall be new and of the type and brand
specified or its equal. All local programming equipment shall remain the property
of Heritage but shall be made available for the use of the public, governmental and
educational entities, and individuals at no cost pursuant to such rules and
regulations as may be promulgated in accordance with paragraph B hereof. All such
public access production equipment shall be maintained by Heritage and shall be
fully replaced with comparable state-of the-art equipment as necessary or upon
reasonable request of the Town based on obsolescence or usability.
B. Production Studio
Heritage shall maintain the existing public access production studio
(or one similar) containing the equipment specified in Attachment 6 hereof.
Heritage shall adopt business hours which shall provide for use of the studio during
weekdays, weekends and evening hours up to a total of forty (40) hours per week.
Heritage shall establish rules, if necessary and with the approval of the Town, to
ensure that the studio is available equitably to Heritage and governmental,
educational and public sectors. Heritage may contract with Vail Community Cable TV
Corp. or any successor thereof to manage studio.
The public access channels shall be available on a first come, first
served basis at no charge to any individual, association, or organization desiring
to utilize them; provided, however, that Heritage may deny the right to use such
facilities for commercial purposes.
C. Staffing and Training
Heritage shall provide adequate staffing for the access studio and for
training of the public in the use of production equipment. Heritage shall from time
to time conduct workshops to train community and access users in television
production techniques and equipment.
D. Access Rules
All rules and regulations as may be necessary or desirable relating to
the availability of production equipment for use by the public and governmental and
educational entities, studio availability and hours of studio availability and
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channel availability and programming time shall be promulgated by the Town in
cooperation with Heritage.
13. GENERAL PROVISIONS
The following provisions shall be applicable to the existing cable
communications system and to any rebuilt system as contemplated herein upon the
effective date of this franchise agreement and shall be applicable throughout the
life of the franchise.
A. Parental Control Devices
Heritage shall provide subscribers upon .request the ability to lock
out such channels as they may desire.
B. Underground Cable
New cable shall be installed underground at Heritage's cost.
Previously installed aerial cable shall be placed underground in concert, and on a
cost sharing basis, with affected utilities, when such utilities are converted from
aerial to underground construction; provided, however, that Heritage is given
reasonable prior notice of such underground placement.
A preconstruction conference with the property owners will be
completed prior to commencing any underground construction, and the Town shall
assist and cooperate in such conferences if necessary. All soil, earth, sod or
improvements disturbed by the installation shall be replaced and restored to their
original condition. Patching of highways, roads and driveways will be completed in
accordance with the specifications promulgated by, and subject to inspection and
approval by, Town, County or State engineers, as appropriate.
C. Minimum Interference
All. transmission lines, equipment and structures shall be installed
and located so as to cause minimum interference with all rights and reasonable
convenience of property owners and at all times kept and maintained in a safe and
adequate condition, and in good order and repair. Heritage shall, at all times,
employ necessary and reasonable care and shall install and maintain and use commonly
accepted methods and devices for preventing failures and accidents which are likely
to cause damage, injury, or nuisances to the public. Suitable barricades, flags,
lights, flares, or other devices shall be used at such times and places as are
reasonably required for the safety of all members of the public and as detailed in
the manual on uniform traffic control devices.
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D. Notice of Shutdown
- At least twelve (12) hours before any planned shutdown Heritage shall
give notice on all channels when possible of maintenance or major equipment
changeouts which require loss of service to five (5) or more customers.
E. Free Service Calls
Heritage shall not charge for any service call whether or not the call
is system related; provided, however, a charge may be made if the service call is
the result of repeated abuse of the equipment or cable by the subscriber.
F. Employee Identification
Heritage shall provide a standard identification document to all
employees including employees of subcontractors who will be in contact with the
public. Such documents shall include a telephone number which can be used to verify
identification. In addition, Heritage shall use its best efforts to clearly
identify all personnel, vehicles and other major equipment that are operating under
the authority of Heritage.
G. Converters
With the existing cable communications system and upon any rebuild
thereof, Heritage shall utilize state-of-the-art signal security. Furthermore,
Heritage shall, to the extent feasible, construct the system and install equipment
which permits the full utilization of cable ready television receivers by
subscribers to avoid converter usage, where possible.
H. Local Origination
Heritage is encouraged to provide local origination programming of a
cultural, recreational, athletic, or civic nature.
I. Service to Government
Heritage shall provide upon request a reasonable number of free drops
not to exceed four (4) per building to all government buildings and schools which
are passed by the cable plant.
14. SUBSCRIBER RIGHTS AND COMPLAINTS
A. At the time an installation or service agreement is to be signed,
Heritage shall furnish to each subscriber a written statement that clearly sets
forth the following:
1. A complete schedule of rates, fees, charges, and the terms and
conditions of service currently applicable to the type of installation and service.
offered.
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2. A complete statement of the subscriber's right to privacy in
conformance with Federal or State law.
3. Information concerning the procedures for making inquiries or
complaints. _
4. The address and telephone number of the Heritage office
responsible for handling complaints.
6. The business office of Heritage shall have a locally listed telephone
number, and at a minimum, be open for business eight (8) hours a day on weekdays and
have a sufficient number of lines so that the office is reasonably accessible by
telephone and telephone lines are not continuously busy. Heritage business offices
shall be located within the Town of Vail boundaries or within a distance of ten (10)
miles from the Town of Vail boundaries.
C. All complaints shall be handled in accordance with the procedures set
forth in the Town of Vail cable ordinance.
15. PRIVACY POLICIES
Heritage shall endeavor to operate its business in such a way as to give
effect to the privacy rights of each subscriber and user in accordance with the Vail
cable television ordinance, the requirements set forth herein and other applicable
federal, state and local laws and regulations.
16. FRANCHISE RENEWAL
This franchise may be renewed by the Town in accordance with the provisions
of the Town of Vail franchise ordinance and applicable law.
17. POLICE POWERS
In accepting this franchise, Heritage acknowledges that its rights
hereunder are subject to the police powers of the Town to adopt and enforce general
ordinances necessary to the safety and welfare of the public and it agrees to comply
with all applicable general laws and ordinances enacted by the Town pursuant to such
power. Any conflict between the provisions of this franchise agreement and any
other present or future lawful exercise of the Town's police power shall be resolved
in favor of the latter, except that any such exercise that is not a general
application of the jurisdiction or applies exclusively to Heritage or cable
communications system which contains provisions inconsistent with this agreement
shall prevail only if, upon such exercise, the Town finds that an emergency exists
constituting a danger to health, safety, property, or general welfare or such
exercise is mandated by law.
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18. FRANCHISE FEE
A. Annual Franchise Payment
Heritage shall pay to the Town five (5) percent of its annual gross
revenues during the .,period of its operation under the franchise, pursuant to the
provisions of the Town of Vail cable television ordinance. If during the term of
this agreement, any court, agency or other authority of competent jurisdiction takes
any action or makes any direct declaration that adversely affects the amount of the
franchise fee payable to the Town as set forth in this Section, the Town and
Heritage shall enter into negotiations to amend this franchise agreement to make the
Town whole in a manner consistent with said action or declaration by restoring the
Town to a position equivalent to that which had held prior to said action or
declaration to the extent allowed by law.
B. Payments due the Town under this provision shall be computed at the
end of each quarter year for that quarter year. Payments shall be due and payable
for each quarter or a portion of a quarter year to the Town sixty (60) days after
the close of that quarter or a portion of a quarter year. Each payment shall be
accompanied by a brief report showing the basis for the computation and such other
relevant facts as may be required by the Town.
C. No acceptance of any payment by the Town shall be construed as a
release or as an accord and satisfaction of any claim the Town may have for further
or additional sums payable as a franchise fee or for the performance of any other
obligation of Heritage.
D. In accordance with the cable television ordinance of the Town of Vail,
Heritage shall pay as a grant fee to the
together with the application filing fee
Town. Heritage shall exercise no rights
payment is made. It is understood and a~
the franchise fee and any other payments
19. RATES AND CHARGES
A. Initial Rates
Town ten thousand dollars ($10,000), which
reflects the refranchising costs to the
under this franchise agreement until such
freed that this payment is in addition to
required hereunder.
Heritage initial rates and charges, contained in Attachment
hereto shall be applied fairly and uniformly to all subscribers in the Town.
B. Rate Regulation
1) Rate regulation may apply to the extent that Heritage is not
exempt from local rate regulation by preemption of state or federal law. To the
extent that state or federal law or regulation may now, or as the same may hereafter
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be amended, authorize the Town to regulate the rate for any particular service
tiers, service pac;ca.ges, equipment or any ;,thee servir_es provided by Heritage, the
procedures for processing rate increases as set forth in the Town of Vail cable
television ordinance.._shall apply. Heritage shall comply with all notice
requirements set forth in the Town of Vail cable television ordinance relating to
rate increases and decreases.
2) Heritage and the Town hereby agree that the Town of Vail is a
market which is not subject to effective competition as defined by FCC regulations
promulgated in furtherance of Section 623(b) of Cable Communications Policy Act of
1984 (the Act). Consequently, Heritage and the Town agree that the Town shall have
the right to regulate the rates charged subscribers for basic cable served pursuant
to Section 623(b) of the Act.
20. INSURANCE
Certificates or policies evidencing insurance in the amounts required by
the Uail cable television ordinance shall be provided by Heritage and shall be filed
in the Office of the Town Clerk. Insurance shall cover acts by Heritage, its
employees, agents, subcontractors or any other person acting on behalf of Heritage.
21. COOPERATION
The parties recognize that it is in their best interest for the cable
communications system to be operated as efficiently as possible and for any required
rebuilding of the system to occur in accordance with the requirements and schedule
as set forth in this agreement. To achieve this, the parties agree to cooperate
with each other in accordance with the terms and provisions of this franchise
agreement. Should either party believe that the other is not acting kindly or
reasonably in accordance with the applicable regulations and procedures in
responding to a request for action, that party shall notify the agents designated
for that purpose by the other. The agent will use its best effort to facilitate the
particular action requested.
2Z. WAIVER
The failure of the Town at any time to require performance by Heritage of
any provision hereof shall in no way affect the right of the Town hereafter to
enforce the same. Under no circumstances shall the waiver of the Town of any breach
or any provision hereof be taken or held to be a waiver of any succeeding breach of
such provision or as a waiver of the provision itself.
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23. CUMULATION OF REMEDIES
-The rights and remedies reserved to the Town by this franchise agreement
are cumulative and shall be in addition to and not in derogation of any other rights
or remedies which the Town may have with respect to the subject matter of this
franchise agreement, and a waiver thereof at any time shall have no effect on the
enforcement of such rights or remedies at a future time.
24. COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS
Heritage, its employees, and agents shall be familiar with all federal,
state, local and municipal laws, ordinances, rules and regulations which in any
manner affect those engaged or employed in the work, or the materials or equipment
used in or upon the work or in any way affect the work and no plea of
misunderstanding will be considered upon account of the ignorance thereof.
Heritage's contractors, employees and agents shall comply with all applicable
federal, state and local laws, rules and regulations issued thereto and Heritage
shall indemnify the Town against any loss, liability, or damage occasioned by reason
of its violation of this Section. Heritage shall maintain and install its wires,
cables, fixtures, and other equipment in compliance with all applicable federal,
state, and local law, and in such a manner so as not to interfere with any
installation of the Town's other cable franchises or utilities.
25. NOTICES
All notices from Heritage to the Town pursuant to this agreement shall be
sent to 75 South Frontage Road, Vail, Colorado 81657. Heritage shall maintain a
local office and telephone number for the conduct of matters related to the
franchise. All notices to Heritage shall be sent to Heritage Cablevision, 2195
Ingersoll Ave., Des Moines, Iowa 50312, Attn: Legal Department.
26. CAPTIONS
Captions to Sections throughout this agreement are solely to facilitate the
reading and reference to Sections and provisions of the agreement. Such captions
shall not affect the meaning or interpretation of the agreement.
27. COMPANY SHALL HOLD TOWN HARMLESS
Heritage shall save and keep the Town and its officials, boards,
commissions, agents and employees free and harmless from any loss, expense or damage
to person or property arising out of or resulting from any provision or requirement
of the franchise or exercising its rights or performing its duties under this
franchise.
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28. TIME IS OF THE ESSENCE
:-Whenever this franchise agreement sets forth any time for any act to be
performed by either of the parties, such time shall be deemed to be of the essence
of this agreement.
29. CONSTRUCTION OF AGREEMENT
This agreement shall be governed, construed and enforced in accordance with
the laws of the State of Colorado, except that the parties' respective rights and
obligations hereunder shall be subject to any applicable provisions of the Cable
Communications Policy Act of 1984, as now existing or as the same may be from time
to time hereinafter amended, and the applicable provisions of the Communications Act
of 1934 as hereinafter amended, any applicable rules, regulations and orders of the
Federal Communications Commission and any applicable rules, regulations, legislation
or orders of any other public body having jurisdiction over the subject matter
hereof.
30. NO JOINT DENTURE
Nothing herein shall be deemed to create a joint venture or principle agent
relationship between the parties and neither party is authorized to, nor shall
either party act toward third persons or the public in any manner which would
indicate any such relationship with the other.
31. ENTIRE AGREEMENT
This agreement, plus correspondence and proposal of Heritage, all
attachments hereto, and the Vail cable television ordinance as incorporated herein,
represent the entire understanding and agreement between the parties with respect to
the subject matter hereof, supersede all prior oral negotiations between the parties
and can be amended, supplemented, modified or changed only by an agreement in
writing which makes special reference to this
agreement or to the appropriate attachment or document which is signed on behalf of
both parties.
32. SEVERABILITY
If any section, subsection, sentence, clause, or phrase or portion of this
agreement is, for any reason held invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct and
independent provision and such holding shall not affect the validity of the
remaining portions of this agreement.
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IN .WITNESS WHEREOF, the parties have caused this agreement to be signed on the
day and year rirst writ*en above.
TOWN OF VAIL, CABLEVISION VI, INC. d/b/a
a Colorado municipal corporation HERITAGE CABLEVISION
By: By:
Rondall V. Phillips, Town Manager Kevin L. Rice, Vice President/Operations
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HERITAGE CABLEVISION and TOWN OF VAIL
FRANCHISE AGREEMENT
This agreement is made and entered into on 1989
by and between the TOWN OF VAIL, Colorado, a Colorado municipal corporation ("the
Town") and CABLEVISION VI, INC. D/B/A HERITAGE CABLEVISION ("Heritage").
WHEREAS, the Town is authorized to grant one or more non-exclusive, revocable
franchises to construct, reconstruct, operate and maintain a cable television system
within the Town; and
WHEREAS, the Town has received a request for renewal of the existing franchise
from Heritage; and
WHEREAS, the Town, after public hearings and due evaluation, has determined that
it is in the best interest of the Town and its residents to renew the franchise of
Heritage for a fifteen (15) year term.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein the parties do mutually agree as follows:
1. GRANT OF FRANCHISE
A. Heritage is hereby granted for itself and its successors and assigns,
subject to the terms and conditions of this franchise agreement, and the franchise
ordinance, the right, privilege and authority to construct, operate, maintain and
reconstruct a cable television system within the streets, alleys, easements or such
easements are broad enough to allow the installation of cable television facilities,
and public ways of the Town. Heritage shall provide a modern and uniform Town-wide
cable communications system to the residents and institutions of the Town in
accordance with this franchise agreement.
B. This franchise is subject to Chapter of the Town of Vail
Municipal Code and other ordinance provisions now in effect or hereinafter made
effective. Nothing in this agreement shall be deemed to waive the requirements of
the various codes and ordinances of the Town regarding permits, fees to be paid, or
manner of construction.
C. For the purpose of operating and maintaining a cable television system
in the Town, Heritage may erect, install, construct, repair, replace, reconstruct,
and retain in, on, over, under, or upon, across and along the public streets,
available easements, alleys and ways within the Town, such wires, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals,
attachments, and other property and equipment as are necessary and appurtenant to
the operation of the cable television system in conformance with the Town's
~i~~
.:~_
e
specifications. Prior to any construction or alteration, however, Heritage shall
file plans with the appropriate Town agencies and utility companies and receive
written approval before proceeding.
2. REPRESENTATIONS AND WARRANTIES OF HERITAGE
A. Heritage represents and warrants that it will comply with all
provisions of the franchise;
B. Heritage represents and warrants that neither it nor its
representatives or agents have committed any illegal acts or engaged in any wrongful
conduct contrary to, or in violation of any federal, state or local law or
regulation in connection with the obtaining of this franchise;
C. Heritage represents and warrants that it is a corporation licensed to
do business in Colorado and has full right and authority to enter into and fully
perform the franchise;
D. Heritage represents and warrants that all corporate action required to
authorize the acceptance of the franchise and execution and delivery of this
agreement and all other documents to be executed and/or delivered by Heritage
pursuant to the franchise and to authorize the performance by Heritage of all of its
obligations under the franchise, and all such other documents to be executed and/or
delivered by Heritage have been validly and duly acted on and are in force and
effect;
E. Heritage represents and warrants that the franchise and all other
documents executed and/or delivered by Heritage have been duly accepted and
executed;
F. Heritage represents and warrants that it has carefully read the terms
and conditions of the franchise and accepts the obligations imposed by the terms and
conditions of the franchise.
3. EFFECTIVE DATE OF FRANCHISE; EFFECT UPON EXISTING FRANCHISE
A. Heritage shall have thirty (30) days from the date of adoption of this
ordinance to accept the grant of a franchise by executing the franchise agreement.
Such acceptance by Heritage shall be deemed the grant of this franchise for all
purposes and immediately upon the taking affect of this franchise agreement, the
prior franchise granted to Heritage or their predecessor in interest on
19 by the passage of Ordinance No. shall be superseded and have no
further force and effect; provided however, vested rights relating to billings and
the Town's rights to accrue franchise fees shall not be affected thereby; and
provided, further, that any criminal proceedings commenced under or pursuant to said
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franchise shall in no manner be affected. In the event acceptance does not take
place within thirty (30) days or such other time as the Town might allow, this
franchise shall be null and void.
B. Upon acceptance of this franchise, Heritage shall be bound by all the
terms and conditions contained herein. Heritage shall provide all services and
offerings specifically set forth herein to provide cable television services within
the Town.
C. With its acceptance, Heritage also shall deliver to the Town a
certified resolution of Heritage evidencing its power and authority to accept the
franchise. Such document shall also describe officers authorized to accept on
behalf of Heritage.
D. With its acceptance, Heritage shall also pay all costs and expenses
incurred by the Town in connection with the renewal process. The Town shall provide
an itemized statement to Heritage. Costs or expenses of the Town not identified at
that time shall be paid promptly by Heritage upon receipt of an itemized statement
from the Town. It is the intent of the Town and Heritage that the Town be
reimbursed for all costs and expenses in connection with the granting of the
franchise including any subsequent expenses due to delays or litigation pertaining
to the grant of the franchise.
E. With its acceptance, Heritage shall also deliver any security deposit,
insurance certificates, performance bonds, and equipment grant required herein.
4. TERM
The term of the franchise shall be for a period of fifteen (15) years from
the effective date, unless sooner terminated as hereinafter provided, at which time
it shall expire and be of no further force and effect.
5. FRANCHISE NON-EXCLUSIVE
This franchise shall not be construed as any limitations upon the right of
the Town to grant to other persons, rights, privileges, or authorities similar to
the rights, privileges and authorities herein set forth, in the same or other
streets, alleys, or public ways or public places. The Town specifically .reserves
the right to grant at any time during the term of this agreement or renewal thereof,
if any, such additional franchises on the same or similar terms, for any cable
television system as it deems appropriate.
6. CABLE TELEVISION ORDINANCE INCORPORATED
All terms, conditions, and provisions of the Town of Vail cable television
ordinance shall be deemed to be embodied in this franchise agreement, and the
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express terms of the ordinance shall prevail over conflicting or inconsistent
provisions of this franchise agreement.
7. DEFINITIONS
The following words and phrases, when used in this agreement, shall, for
the purpose hereof have the meanings ascribed to them in this Section.
A. "Cable communications system" or system shall mean a non-broadcast
facility consisting of a set of transmission paths and associated signal generation,
and reception and control equipment, under common ownership and control, that
distributes or is designed to distribute to public subscribers cable television
services, institutional services, or other communications services, but such terms
shall not include:
1) A facility or combination of facilities that serves only to
retransmit the television signals of one or more television broadcast signals;
2) A facility or combination of facilities that serves only
subscribers in one or more multiple unit dwellings under common ownership, control,
or management, unless such facility or facilities use any public right-of-way;
3) A facility of a common carrier which is subject, in whole or in
part to the provisions of Title II of the Communications Act of 1934, as amended;
except that such facility shall be considered a cable system [other than for the
purposes of 47 U.S.C. 541(c)] to the extent such facility is used and the
transmission of video programming directly to subscribers; or
4) Any facilities of an electric utility used solely for operating
its electric utility system.
B. "Channel" shall mean a six (6) megahertz (MHz) frequency band which is
capable of carrying either one (1) standard video signal, a number of audio, digital
or other non-video signals, or some combination of such signals.
C. "Downstream" shall mean signals originating at the head end or hub and
transmitted to subscribers.
D. "Earth station" shall mean equipment used to receive signals from or
transmit signals to a communications satellite.
E. "Force Majeure" shall mean any delays caused by reason of (1) civil
commotion; (2) riots; and (3) acts of God, such as floods, earthquakes and
hurricanes.
F. "Franchise grant ordinance" shall mean the ordinance granting a
franchise to a Grantee.
-4-
G. "Head end" shall mean the facility, including antennas and associated
electronics which receives, controls, and switches the electronic information
transmitted over the cable communications system.
H. "Residential service" shall mean any service delivered by the cable
communications system principally to subscribers in their dwelling units.
I. "School" shall mean any duly accredited non-profit educational
institution, including primary and secondary schools, colleges and universities,
both public and private.
J. "State-of-the-art" shall mean any cable communications system,
components, or equipment accepted and used in the cable communications industry
which is the most modern and advanced equipment generally accepted and used in the
cable communications industry.
K. "Wire tapping" shall mean the unauthorized reception of a
communications signal.
L. "Two-way" shall mean the simultaneous transmission of upstream and
downstream signals through a cable communications system.
8. SERVICE AREA
A. Line Extension
Heritage shall offer cable television service to all areas of the Town
in accordance with the following line extension policy. In the city limits of the
Town as they stand on
1989, Heritage shall, provide
service to any dwelling unit or commercial subscriber that is served by the existing
system and in other areas where there are at least thirty (30) residential dwelling
units or commercial units per mile of cable plant. In other areas annexed to the
Town or developed after
1989, Heritage shall provide
service to any new dwelling unit or commercial subscriber where there are at least
twenty (20) dwelling units or commercial units per proposed additional cable plant
mile.
Further, in other areas with less than thirty (30) dwelling units or
commercial units per proposed cable plant mile, Heritage shall offer a cost-sharing
arrangement with residents.
Heritage's share (set herein as per subscriber)
shall be recalculated annually and based upon then-current costs for labor and
materials. Residents desiring cable television services shall contribute the
remaining costs for line extensions to provide services to their dwelling units.
The Town and Heritage shall derive future contribution amounts based on average
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annual costs for thirty (30) homes per mile, it being understood that the costs for
underground not be the same.
B. Heritage shall provide service to all annexed areas of the Town within
nine (9) months of obtaining easements and appropriate permits. Heritage shall make
every reasonable effort to obtain easements within three (3) months after the
effective date of such annexation. If easements are unavailable due to
circumstances beyond the control of Heritage, Heritage shall make every reasonable
effort to find an alternative route to provide cable television service. Heritage
shall report periodically to the Town on its progress in providing service to
annexed areas of the Town.
9. SYSTEM DESIGN AND CAPACITY
A. Present System Overview
Heritage will maintain the existing cable communication system as a
state-of-the-art system. Parties understand and agree that at the time of this
franchise that system consists of a residential network with a capacity of three-
hundred (300) MHz. The present system is currently capable of carrying thirty-six
(36) channels and there are currently thirty-one (31) activated channels. The broad
categories are video and other services as set forth in Attachment A. The current
system transmits all basic channels unscrambled so that they are available to
cable-ready TV sets and video cassette recorders without the need for a converter.
BTSC standard stereo shall be broadcast on all those channels as indicated in
Exhibit attached hereto and made a party hereof.
Most current equipment in the system and all of the systems new build
and rebuild shall be designed for four-hundred-fifty (450) MHz with a capacity of
sixty-nine (69) channels.
Whether or not the system's design remains "state-of-the-art" shall be
determined jointly by the Town and Heritage at the periodic reevaulation sessions
set forth in paragraph 44 of the Franchise Ordinance.
B. Community Information Service
Heritage shall provide a community information service channel which
shall be shared with a weather data service. Heritage shall provide to the Town,
free of charge, one (1) character generator with two (2) remote keyboards with a
minimum of fifty-eight (58) page memory and color graphics. Said equipment shall be
located in such public buildings as may be designated by the Town with ability to
transmit signals to the head end. The equipment will be installed by Heritage and
remain the property of Heritage, and all maintenance, except that required because
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of gross neglect or intentional injury by the Town shall be responsibility of
Heritage, provided that the equipment is delivered and picked up at Heritage's
repair facility. The community information channel and the equipment referred to
above shall be prov ided within six (6) months from the receipt of a request
therefore from the Town.
C. Public Educational and Governmental Access
In addition to the community service channel, Heritage shall provide,
at no cost to the users, at least one (1) specially designated channel available for
governmental, educational and public access. In the event that said specially
designated access channel is in use by the general public, local educational
authorities and local governmental units during seventy-five (75) percent of the
weekdays (Monday through Friday) for seventy-five (75) percent of the time for six
(6) consecutive weeks for non-character generated programming using film, video or
live telecasting, and the Town makes a demand for use of an additional channel for
access, Heritage shall have six (6) months in which to make available a new
specially designated access channel.
D. Technical Standards
The minimum technical standards shall be the minimum standards set
forth by the Federal Communications Commission in their rules or any rules that
supercede such rules. Regardless of the technical standards that may be applicable
the system shall be capable of providing to subscribers video and aural signals of
consistently good quality.
E. Satellite Earth Station
The system configuration shall include satellite earth station
capability to receive signals simultaneously from all operational U.S. domestic
satellites carrying at least four (4) non-duplicated non-premium cable entertainment
services. Heritage shall .provide a sufficient number of earth stations to receive
signals from all operational U.S. communications satellites that generally carry
programs available to cable systems throughout the life of the franchise.
F.. Capacity for Interactive Residential Services
The cable communications system shall have the capacity for
interactive residential services including, but not limited to, security alarm
monitoring, home shopping, energy management, video techs, subscriber pulling, video
games, meter reading, and one way or interactive education. The cable system shall
also have the capability, for providing shop at home and electronic banking
services. All customer equipment necessary for such services such as addressable
-7-
interactive converters, home terminals and home detectors shall be provided to ,
subscribers by Heritage in accordance with established and uniform rate schedules.
G. Standby Power
Heritage shall provide standby power generating capacity at the cable
communications system control center and at major trunk line locations. Heritage
shall maintain standby power systems supplies, rated for at least four (4) hours
duration, throughout the distribution networks.
H. Frequency Availability
Heritage shall use its best efforts to assure the availability of
appropriate frequencies to be used on the cable communications system. Heritage
shall at all times during the term of the franchise comply with all rules and
regulations promulgated by the FCC regarding frequency usage and cable television
system requirements.
I. Addressable Capability
The cable communications system shall be addressable with capability
for users to acquire signal security for selected channels and subchannels through
techniques such as signal scrambling or encoding. The addressable features shall be
activated at such time as services are provided.
10. RIGHT OF INSPECTION
The Town shall, at its own expense, have the right to inspect all
construction and installation work performed subject to the provisions of this
franchise and shall make such tests as it shall find necessary to insure compliance
with the terms of this agreement and other pertinent provisions of the law;
provided, however, that the Town shall be permitted to charge Heritage its usual and
customary fees for the inspection of construction in public rights-of-way; and
provided, further, that such inspection and tests shall not interfere with the
provision of subscriber services. Any delays in construction due to the inspection
shall not be reason for default. The Town may also have the right to have all
construction and installation work performed subject to the provisions of this
franchise reviewed by an independent engineer: to determine whether all
construction or improvements are in compliance with the franchise; all technical
standards are being met; and there is compliance with all applicable Town codes and
standards. If such testing establishes that the system does not meet all required
technical standards, Heritage shall bear the expense for such testing.
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11. SYSTEM SERVICES
A. Initial Residential Subscribers Services and Programming
Attachment A which is incorporated herein by reference describes the
composition of the ba-sic service tier and other services which Heritage shall
initially provide. In accordance with the Cable Act, Heritage shall, for the term
of the franchise, maintain the mix, quality and level of programming set forth in
Attachment A.
B. Leased Access Channels
Heritage shall offer leased access channel capacity at such terms and
conditions and rates as may be negotiated with each lessee subject to the
requirements of Section 612 of the Cable Act of 1984 (47 U.S.C., Section 612) as
amended.
12. ACCESS AND INSTITUTIONAL SERVICES
In order to develop local programming, Heritage hereby agrees to provide
the following:
A. Local Programming Production Equipment as set forth in Attachment B
hereof or Comparable Equipment
All equipment so provided shall be new and of the type and brand
specified or its equal. All local programming equipment shall remain the property
of Heritage but shall be made available for the use of the public, governmental and
educational entities pursuant to such rules and regulations as may be promulgated in
accordance with paragraph B hereof. All such public access production equipment
shall be maintained by Heritage and shall be fully replaced with comparable state-of-
the-art equipment as necessary or upon reasonable request of the Town based on
obsolescence or usability.
B. Production Studio
Heritage shall maintain the existing public access production studio
(or one similar) containing the equipment specified in Attachment B hereof.
Heritage shall adopt business hours which shall provide for. use of the studio during
weekdays, weekends and evening hours up to a total of forty (40) hours per week.
Heritage shall establish rules, if necessary and with the approval of the Town, to
ensure that the studio is available equitably to Heritage and governmental,
educational and public sectors. Heritage may contract with Vail Community Cable TU
Corp. or any successor thereof to manage studio.
The public access channels shall be available on a first come, first
served basis at no charge to any individual, association, or organization desiring
-9-
to utilize them; provided, however, that Heritage may deny the right to use such
facilities for commercial purposes.
C. Staffing and Training
Heritage shall provide adequate staffing for the access studio and for
training of the public in the use of production equipment. Heritage shall from time
to time conduct workshops to train community and access users in television
production techniques and equipment.
D. Access Financing
Access financing shall be set forth in a separate agreement between
the Town, Heritage and the Vail Community Television Corporation.
E. Access Rules
All rules and regulations as may be necessary or desirable relating to
the availability of production equipment for use by the public and governmental and
educational entities, studio availability and hours of studio availability and
channel availability and programming time shall be promulgated by the Town Manager
in cooperation with Heritage.
13. GENERAL PROVISIONS
The following provisions shall be applicable to the existing cable
communications system and to any rebuilt system as contemplated herein upon the
effective date of this franchise agreement and shall be applicable throughout the
life of the franchise.
A. Parental Control Devices
Heritage shall provide subscribers upon request the ability to lock
out such channels as they may desire.
B. Underground Cable
Cable shall be installed underground at Heritage's cost where all
existing utilities are already underground. Previously installed aerial cable shall
be placed underground in concert, and on a cost sharing basis, with affected
utilities, when such utilities are converted from aerial to underground
construction; provided, however, that Heritage is given reasonable prior notice of
such underground placement.
C. Minimum Interference
All transmission lines, equipment and structures shall be installed
and located so as to cause minimum interference with all rights and reasonable
convenience of property owners and at all times kept and maintained in a safe and
adequate condition, and in good order and repair, Heritage shall, at all times,
-10-
employ necessary and reasonable care and shall install and maintain and use commonly
accepted methods and devices for preventing failures and accidents which are likely
to cause damage, injury, or nuisances to the public. Suitable barricades, flags,
lights, flares, or other devices shall be used at such times and places as are
reasonably required for the safety of all members of the public and as detailed in
the manual on uniform traffic control devices.
D. Notice of Shutdown
At least twelve (12) hours before any planned shutdown Heritage shall
give notice on all channels when possible of maintenance or major equipment
changeouts which require loss of service to five (5) or more customers.
E. Free Service Calls
Heritage shall not charge for any service call whether the call is
system related; provided, however, a charge may be made if the service call is the
result of repeated abuse of the equipment or cable by the subscriber.
F. Employee Identification
Heritage shall provide a standard identification document to all
employees including employees of subcontractors who will be in contact with the
public. Such documents shall include a telephone number which can be used to verify
identification. In addition, Heritage shall use its best efforts to clearly
identify all personnel, vehicles and other major equipment that are operating under
the authority of Heritage.
G. Converters
With the existing cable communications system and upon any rebuild
thereof, Heritage shall utilize state-of-the-art signal security. Furthermore,
Heritage shall, to the extent feasible, construct the system and install equipment
which permits the full utilization of cable ready television receivers by
subscribers to avoid converter usage, where possible.
H. Local Origination
Heritage is encouraged to provide local origination programming of a
cultural, recreational, athletic, or civic nature.
I. Service to Government
Heritage shall provide upon request a reasonable number of free drops
not to exceed four (4) per building to all government buildings and schools which
are passed by the cable plant.
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14. SUBSCRIBER RIGHTS AND COMPLAINTS
A. At the time an installation or service agreement is to be signed,
Heritage shall furnish to each subscriber a written statement that clearly sets
forth the following:-
1. A complete schedule of rates, fees, charges, and the terms and
conditions of service currently applicable to the type of installation and service
offered.
2. A complete statement of the subscriber's right to privacy in
conformance with Federal or State law.
3. Information concerning the procedures for making inquiries or
complaints.
4. The address and telephone number of the Heritage office
responsible for handling complaints.
B. The business office of Heritage shall have a locally listed telephone
number, and at a minimum, be open for business eight (8) hours a day on weekdays and
have a sufficient number of lines so that the office is reasonably accessible by
telephone and telephone lines are not continuously busy. Heritage business offices
shall be located within the Town of Vail boundaries or within a distance of ten (10)
miles from the Town of Vail boundaries.
C. All complaints shall be handled in accordance with the procedures set
forth in the Town of Vail cable ordinance.
15. PRIVACY POLICIES
Heritage shall endeavor to operate its business in such a way as to give
effect to the privacy rights of each subscriber and user in accordance with the Vail
cable television ordinance, the requirements set forth herein and other applicable
federal, state and local laws and regulations.
16. FRANCHISE RENEWAL
This franchise may be renewed by the Town in accordance with the provisions
of the Town of Vail franchise ordinance and applicable federal law.
17. POLICE POWERS
In accepting this franchise, Heritage acknowledges that its rights
hereunder are subject to the police powers of the Town to adopt and enforce general
ordinances necessary to the safety and welfare of the public and it agrees to comply
with all applicable general laws and ordinances enacted by the Town pursuant to such
power. Any conflict between the provisions of this franchise agreement and any
other present or future lawful exercise of the Town's police power shall be resolved
-12-
in favor of the latter, except that any such exercise that is not a general
application of the jurisdiction or applies exclusively to Heritage or cable
communications system which contains provisions inconsistent with this agreement
shall prevail only if, upon such exercise, the Town finds that an emergency exists
constituting a danger to health, safety, property, or general welfare or such
exercise is mandated by law.
18. FRANCHISE FEE
A. Annual Franchise Payment
Heritage shall pay to the Town five (5) percent of its annual gross
revenues during the period of its operation under the franchise, pursuant to the
provisions of the Town of Vail cable television ordinance. If during the term of
this agreement, any court, agency or other authority of competent jurisdiction takes
any action or makes any direct declaration that adversely affects the amount of the
franchise fee as set forth in this Section, the Town and Heritage shall enter into
negotiations to amend this franchise agreement to make the Town whole in a manner
consistent with said action or declaration by restoring the Town to a position
equivalent to that which had held prior to said action or declaration to the extent
allowed by law.
B. Payments due the Town under this provision shall be computed at the
end of each quarter year for that quarter year. Payments shall be due and payable
for each quarter or a portion of a quarter year to the Town sixty (60) days after
the close of that quarter or a portion of a quarter year. Each payment shall be
accompanied by a brief report showing the basis for the computation and such other
relevant facts as may be required by the Town.
C.' No acceptance of any payment by the Town shall be construed as a
release or as an accord and satisfaction of any claim the Town may have for further
or additional sums payable as a franchise fee or for the performance of any other
obligation of Heritage.
D. In accordance with the cable television ordinance of the Town of Vail,
Heritage shall pay as a grant fee to the Town ( ), which
together with the application filing fee reflects the refranchising costs to the
Town. Heritage shall exercise no rights under this franchise agreement until such
payment is made. It is understood and agreed that this payment is in addition to
the franchise fee and any other payments required hereunder.
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19. RATES AND CHARGES
A. Initial Rates
Heritage initial rates and charges, contained in Attachment
hereto shall be applied fairly and uniformly to all subscribers in the Town.
B. Rate Regulation
Rate regulation may apply to the extent that Heritage is not exempt
from local rate regulation by preemption of state or federal law. To the extent
that state or federal law or regulation may now, or as the same may hereafter be
amended, authorize the Town to regulate the rate for any particular service tiers,
service packages, equipment or any other services provided by Heritage, the
procedures for processing rate increases as set forth in the Town of Vail cable
television ordinance shall apply. Heritage shall comply with all notice
requirements set forth in the Town of Vail cable television ordinance relating to
rate increases and decreases.
20. INSURANCE
Certificates or policies evidencing insurance in the amounts required by
the Vail cable television ordinance shall be provided by Heritage and shall be filed
in the Office of the Town Clerk. Insurance shall cover acts by Heritage, its
employees, agents, subcontractors or any other person acting on behalf of Heritage.
21. FORFEITURE OR REVOCATION
A. In addition to all of the rights and powers retained by the Town under
this franchise agreement, the Town reserves the right to forfeit and terminate the
franchise and all rights and privileges of Heritage in the event a substantial
breach of its terms and conditions occurs pursuant to Section 20 the Cable
Ordinance.
B. Disposition of Facilities
In the event this franchise agreement expires, is revoked or otherwise
terminated, Heritage shall remove at its own expense all designated portions of the
cable communications system from all streets and public ways within the Town. In
removing its plant, structures and equipment, Heritage shall refill, at its own
expense, any excavation that shall be made by it and shall leave all public ways in
as good a condition as that prevailing prior to Heritage's removal of its equipment
and appliances without affecting the electrical or telephone or other utility lines,
wires, pipes or attachments. The Town shall inspect and approve the condition of
the public ways, cables, wires, attachments and poles after removal. The liability,
indemnity and insurance as provided herein and in the Vail cable television
°14-
ordinance shall continue in full force and effect during the period of removal and
until full compliance by Heritage with the terms and conditions of this paragraph
and this ordinance.
In the event of a failure by Heritage to complete any work required by
this franchise agreement or the Vail cable television ordinance, or any other work
required by Town law or ordinance within the time as may be established and to the
satisfaction of the Town, the Town may cause such work to be done. Heritage shall
reimburse the Town the costs thereof within thirty (30) days after receipt of an
itemized list of such costs.
C. Foreclosure
Upon the foreclosure or other judicial sale of all or of substantial
part of the cable communications system facilities, or upon the termination of any
lease covering all or a substantial part of the cable communications system, or upon
the occasion of additional events which effectively cause termination of the
system's operation, Heritage shall notify the Town of such fact and such
notification or the occurrence of such terminating events shall be treated as a
notification that a change in control of Heritage is taking place and the
appropriate provisions of the Vail cable television ordinance shall apply.
D. Receivership
The Town shall have the right to cancel this franchise one hundred
twenty (120) days after the appointment of a receiver, or trustee, to take over and
conduct the business of Heritage, whether in receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership or trusteeship
shall have been vacated prior to the expiration of said one hundred twenty (120)
days, or unless:
1. Within one hundred twenty (120) days after the election or
appointment such receiver or trustee shall have fully complied with all the
provisions of the franchise and remedied any defaults thereunder; and
2. Within one hundred twenty (120) days such receiver or trustee
shall have executed an agreement duly approved by the court having jurisdiction
whereby such receiver or trustee assumes and agrees to be bound by each and every
provision of this franchise agreement. _
22. COOPERATION
The parties recognize that it is in their best interest for the cable
communications system to be operated as efficiently as possible and for any required
rebuilding of the system to occur in accordance with the requirements and schedule
-15-
as set forth in this agreement. To achieve this, the parties agree to cooperate
with each other in accordance with the terms and provisions of this franchise
agreement. Should either party believe that the other is not acting kindly or
reasonably in accordance with the applicable regulations and procedures in
responding to a request for action, that party shall notify the agents designated
for that purpose by the other. The agent will use its best effort to facilitate the
particular action requested.
23. WAIVER
The failure of the Town at any time to require performance by Heritage of
any provision hereof shall in no way affect the right of the Town hereafter to
enforce the same. Under no circumstances shall the waiver of the Town of any breach
or any provision hereof be taken or held to be a waiver of any succeeding breach of
such provision or as a waiver of the provision itself.
24. CUMULATION OF REMEDIES
The rights and remedies reserved to the Town by this franchise agreement
are cumulative and shall be in addition to and not in derogation of any other rights
or remedies which the Town may have with respect to the subject matter of this
franchise agreement, and a waiver thereof at any time shall have no effect on the
enforcement of such rights or remedies at a future time.
25. COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS
Heritage, its employees, and agents shall be familiar with all federal,
state, local and municipal laws, ordinances, rules and regulations which in any
manner affect those engaged or employed in the work, or the materials or equipment
used in or upon the work or in any way affect the work and no plea of
misunderstanding will be considered upon account of the ignorance thereof.
Heritage's contractors, employees and agents shall comply with all applicable
federal, state and local laws, rules and regulations issued thereto and Heritage
shall indemnify the Town against any loss, liability, or damage occasioned by reason
of its violation of this Section.
26. NOTICES
All notices from Heritage to the Town pursuant to this agreement shall be
sent to 75 South Frontage Road, Vail, Colorado 81657. Heritage shall maintain a
local office and telephone number for the conduct of matters related to the
franchise. All notices to Heritage shall be sent to Heritage Cablevision, 2195
Ingersoll Ave., Des Moines, Iowa 50312, Attn: Legal Department.
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.r
27. CAPTIONS
Captions to Sections throughout this agreement are solely to facilitate the
reading and reference to Sections and provisions of the agreement. Such captions
shall not affect the-meaning. or interpretation of the agreement.
28. COMPANY SHALL HOLD TOWN HARMLESS
Heritage shall save and keep the Town and its officials, boards,
commissions, agents and employees free and harmless from any loss, expense or damage
to person or property arising out of or resulting from any provision or requirement
of the franchise or exercising its rights or performing its duties under this
franchise.
29. FORCE MAJEURE
Both parties' obligation is to perform any services or complete any
installation by any specific date shall with respect to each such obligation, be
deferred by the amount of time that the other party deems reasonable under the
circumstances for the performance of such service or completion of such installation
when delayed by "Force Majeure". In each such instance, it shall be the burden of
the party seeking a delay of its obligations to perform to prove to the reasonable
satisfaction of the other party the reasonableness of the delay.
30. TIME IS OF THE ESSENCE
Whenever this franchise agreement sets forth any time for any act to be
performed by either of the parties, such time shall. be deemed to be of the essence
of this agreement.
31 ., CONSTRUCTION OF AGREEMENT
This agreement shall be governed, construed and enforced in accordance with
the laws of the State of Colorado, except that the parties' respective rights and
obligations hereunder shall be subject to any applicable provisions of the Cable
Communications Policy Act of 1984, as now existing or as the same may be from time
to time hereinafter amended, and the applicable provisions of the Communications Act
of 1934 as hereinafter amended, any applicable rules, regulations and orders of the
Federal Communications Commission and any applicable rules, regulations, .legislation
or orders of any other public body having jurisdiction over the subject matter
hereof.
32. NO JOINT VENTURE
Nothing herein shall be deemed to create a joint venture or principle agent
relationship between the parties and neither party is authorized to, nor shall
-17-
either party act toward third persons or the public in any manner which would
indicate any such relationship with the other.
33. ENTIRE AGREEMENT
This agreement and all attachments hereto and the Vail cable television
ordinance as incorporated herein, represent the entire understanding and agreement
between the parties with respect to the subject matter hereof, supersede all prior
oral negotiations between the parties and can be amended, supplemented, modified or
changed only by an agreement in writing which makes special reference to this
agreement or to the appropriate attachment or document which is signed on behalf of
both parties.
34. SEVERABILITY
If any section, subsection, sentence, clause, or phrase or portion of this
agreement is, for any reason held invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct and
independent provision and such holding shall not affect the validity of the
remaining portions of this agreement.
IN WITNESS WHEREOF, the parties have caused this agreement to be signed on the
day and year first written above.
TOWN OF VAIL,
a Colorado municipal corporation
By:
Rondall V. Phillips, Town Manager
CABLEVISION VI, INC. d/b/a
HERITAGE CABLEVISION
By:
Kevin L. Rice, Vice President/Operations
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REC~1 JUN - 7 egg
MEMORANDUM
T0: All Chamber Members
FROM: Vail Chamber of Commerce
DATE: June 6, 1989
RE: June Chamber Forum Luncheon
The Vail Chamber of Commerce is pleased to invite you to the
next Chamber Forum Luncheon on Tuesday, June 13th, at the
Vail Hotel and Athletic Club, 12:00 noon.
Judy Walden, receptive operator in international tourism
and principal of Escalante Group, will be the speaker.
Her focus will be Vail's role in international tourism.
We look forward to seeing you there. The cost to members is
$10, non-member°s cost is $14. Please RSVP by noon,
June 12th, to Jan at 476 1000 ext 3037.
~Z~>~
~~~' .
,' GL ~,
~i;~~'
~G~
~~
241 East Meadow Drive, Vail, Colorado 81657 ~ 303/476-1000
ELECTION CALENDAR - SPECIAL MUNICIPAL ELECTION
~~ TOWN OF VAIL, COLORADO, JULY 11, 1989, TO CALL
THE QUESTION: SHALL THE TOWN OF VAIL PARTICIPATE
- - ~~e e
~~
~ ~ ~ ~ ~ IN THE PROPOSED EAGLE VALLEY TV METROPOLITAN
DISTRICT?
75 south frontage road
vail, Colorado 81657
(303) 479.2936
JUNE 7, 1989 FIRST DAY TO ACCEPT APPLICATIONS FOR ABSENTEE BALLOTS.
JUNE 9, 1989 CALL TO AN ELECTION NOTICE IN THE VAIL TRAIL.
JUNE 16, 1989 *DEADLINE TO REGISTER TO VOTE FOR MUNICIPAL
ELECTION ON JULY 11, 1989.
JUNE 20, 1989 COUNCIL TO APPOINT ELECTION JUDGES AND CLERKS AT
EVENING MEETING.
JUNE 30/JULY 7, 1989 PUBLICATION OF ELECTION NOTICE IN THE VAIL TRAIL.
JUNE 30, 1989 POST NOTICE OF ELECTION AT MUNICIPAL BUILDING.
JUNE 30, 1989 BALLOTS MUST BE IN THE HANDS OF THE TOWN CLERK.
JUNE 30, 1989 CAMPAIGN REFORM ACT DOCUMENTATION/EXPENSE
STATEMENTS DUE TO VAIL MUNICIPAL CLERK.
JULY 7, 1989 FINAL DAY TO APPLY FOR ABSENTEE BALLOT AT OFFICE
OF THE TOWN CLERK.
JULY 10, 1989 DELIVER ELECTION SUPPLIES TO THE JUDGES.
JULY 11, 1989 ELECTION DAY!!!
AUGUST 11, 1989 FINAL CAMPAIGN REFORM ACT EXPENSE STATEMENTS DUE.
*ELECTOR MUST BE A RESIDENT FOR 32 (THIRTY-TWO)
DAYS, ALTHOUGH HE/SHE MAY REGISTER UP TO 25
(TWENTY-FIVE) DAYS PRIOR TO THE ELECTION.
NOTICE
VAIL VALLEY MARKETING BOARD
MEETING DATE
The Uail Valley Marketing Board will meet Thursday, June 15, 7:30 a.m., at the Avon
Town Offices.
REC'~~ MAY 2 4 X989
~o
R
V~~~~~~~~~~o
Creators and Operators of Vaily and Beaver Creeks
SITE OF THE 1989 WORLD ALPINE SKI CHAD-iPIONSHIPS
May 23, 1989
Susan Scanlon
Community Development Department
Town of Vail
75 S. Frontage Road
Vail, DD 81657
Dear Susan,
On behalf of Vail Associates I would like to thank you and the rest of the Town
of Vail employees who worked so diligently on organizing and executing the
highly successful Vail clean up day last Saturday.
The results of that kind of grass-roots carmmznity event are apparent -the Town
of Vail looks white-glove-test clean. The other long-lasting beneficiaries were
the many local charities which received Town of Vail funds that clean up day
participants had earned and donated to those non-profit groups. Certainly we
will all benefit for quite soma time from the charities' increased ability to
do good works in our canmiunity.
We want to conmierid the Town of Vail employees aril staff, and especially you
Susan for a job done exceptionally well. It was a novel idea to offer to pay
participants money which would go to the charity of their choice. It was
gratifying to see local citizens out there doing what they could for the town
and charities, and enjoying a beautiful day and a fun barbecue. It was the
kind of event that Vail Associates is always proud to be a part of. In our
estimation, the Vail clean up day is exactly the kind of colmnunity event the
Town of Vail and Vail Associates should continue to support for the good of our
maturing comrmuzity.
Sincerely,
VAIL ASSOCIATES, INC.
{i--~'
!/ -
J F t
News Bureau Manager
J
cce Mike Shannon, Kent Rose, Ron Phillips, Peter Patten
Post Office Box 7 ~ Vail, Colorado 81658 oUSA - (303) 476-5601 o Telex: 910-920-3183
RETT
Revised: 6/ 6/1989
TOWN OF VAIL
REAL ESTATE TRANSFER TAX
History and Budget
1989
1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1989 BUDGET
MONTH ACTUAL
-
-
--- ACTUAL
-----
---- ACTUAL
--------- ACTUAL
----- ACTUAL ACTUAL ACTUAL ACTUAL ACTUAL BUDGET ACTUAL VARIANCE
--------
January -
---
63,999 --
98,089
106,981 ------
119,972 -----------
78,053 -----------
80,733 -----------
101,374 -----------
131,916 -----------
96,119 - ------------
84,193 -----------
309,233 ~ ---------
225,040
February 40,595 69,018 105,024 132,220 86,289 170,052 64,906 44,040 109,873 ; 75,549 140,192 64,643
March 69,886 126,935 109,533 137,820 62,693 63,831 92,557 38,791 68,104 73,345 145,957 72,612
April 76,855 94,653 65,900 103,526 173,321 90,396 182,743 95,554 179,671 ; 100,585 151,070 50,485
May
-------- 42,738
--------- 84,324
----------- 54,663
--------- 90,599
---------- 96,006
----------- 228,673
----------- 98,651
----------- 120,984
----------- 99,736
----------- ; 79,700
-- 220,299 140,599
Subtotal
--------
294,073
---------
473,019
-----------
442,101
--------- -
584,137
-----------
496,362
-----------
633,685
-----------
540,231
-----------
431,285
-----------
553,503
------
-- - -
---------
413,371 -----------
966,751 ---------
553,380
June
62,239
125,433
54,488
140,638
76,467
49,513
79,915
73,509 ---
101,364 --
; -----------
70,858 ----------- ---------
July 49,367 186,110 104,262 68,539 157,598 88,528 70,441 47,949 126,537 ; 82,209
August 79,859 115,499 71,282 97,806 58,937 32,860 100,182 61,137 109,315 ; 71,489
Septembr 59,800 113,992 49,332 96,746 64,671 48,516 108,167 78,819 116,557 70,625
October 108,510 154,000 42,498 122,546 88,732 109,633 93,860 124,291 177,360 ; 99,052
November 102,623 107,768 81,698 91,385 105,109 74,909 89,047 114,839 241,888 ; 85,570
December
-------- 142,662
--------- 133,867
----------- 110,911
--------- 56,533
----------- 81,890
----------- 333,139
--------=-- 106,695
--=-------- 95,495
----------- 192,947
----------
-- 106,824
-
TOTAL
899,133
1,409,688
956,572
1,258,330
1,129,766
1,370,783
1,188,538
1,027,324 -
1,619,471 ----------
1,000,000 ------------
966,751 --------
553,380
~ Includes $133,000 of delinquent taxes, penalty, and interest.
~9A~URA~ ENERGV RESOURCES COiiAPANY
B_ .~ J~ ~'n A~ A A .A. A A_ A A ® ® A A A
~ JUN - ? 1989
P. O. Box 567 ~ Palmer Lake, Colorado 80133 0 (719) 481-2003 ~ FAX (719) 481-4013
EXPRESS MAIL May 30, 1989
Senator 1Jilliam L. Armstrong
i~ashington, D. C. 20510
Dear Senator Armstrong:
Your May 16, 1989 letter is appreciated. However, you are making a
serious environmental, economic, and political mistake by rejecting our
request for a Congressional investigation into the "overlooked" alternatives
to Denver's destructive Two forks Dam proposal.
The $40 million l~tro Denver 6dater Supply Final EIS is not a legally
sufficient decision dac~ent under ~iEPA, mouse it purposely ignored several
ongoing alternatives that are substantially superior to the outmoded Trao Forks
concept. Unfortunately, Denver's 50 year investment in Two forks water rights
and engineering has been used to systematically bias Colorado's Round Table
and Metro Denver's water providers into thinking Two forks was the only viable
alternative. None of these organizations had the vision and engineering
expertise to question Denver's relentless drive to dam the South Platte. They
surely did not evaluate the advanced Gunnison and City - farm Recycling
alternatives before. they were misled into their heavy Two forks commitments.
Because of this misguided political momentum, Two forks developed a life
of its own that effectively destroyed the objectivity of the EIS. For
example, Denver's existing water rights were used by the Corps as a basic
screening criteria for eliminating viable alternatives from detailed
consideration. This may explain why the Gunnison, Colorado's largest untapped
water source, was never considered until we finally forced the embarrassed
Corps into a very inadequate review just prior to release of its Final I3TS.
Because of the lower cost and less environmental impact of a Gunnison
solution, Arapahoe County and the City of Aurora are now aggressively pursuing
this vast overlooked water source for Metro Denver: Although the City of
Thornton dropped most of its interest in Two forks in 1986 to pursue its
innovative City -farm Recycling Project, this 60,000 acre feet water supply
for Northern Denver was completely omitted from the Final EIS. The overlooked
Gunnison and City - farm alternatives are scheduled to come on line long
before Two Forks, with double the safe yield for about half the unit cost. A
large, high altitude, off river, Gunnison storage reservoir at Union Park will
also help correct Colorado's seriously unbalanced water use, while providing
much needed drought protection for both slopes.
Because of the national environmental importance of this gross
alternatives oversight, we again strongly urge that you and the other Colorado
delegates immediately initiate an I3TS Congressional investigation. The
investigation should include a completely independent engineering review of
the several overlooked options. This fresh review could be quickly done at a
fraction of the cost and image damage to Colorado caused by a prolonged legal
battle with our determined national environmental groups.
Sincerely,-
A~/bm Allen D. (Dave) Miller, President
cc: President Bush, U. S. Congressional Delegates, EPA, Colorado Legislators.
WILLIAM L. ARMSTRONG
COLORADO
~C~gfe1 .~fafes ,~e~afe
WASHINGTON, D.C. 20510
May 16, 1989
Mr. Allen Miller
President, Natural Energy Resources Company
P.O. Box 567
Palmer Lake, Colorado 80133
Dear Mr. Miller:
Thank you for your letter of May 5, 1989
requesting a Congressional investigation regarding
omissions of alternatives to the Metro Denver Water
Supply Final Environmental Impact Statement (EIS).
I do not believe such an investigation is
warranted. The Final EIS stated that more than 100
alternative water supply sources were considered,
including groundwater, reuse and approximately 50
reservoir sites in the Platte Basin.
The City and County of Denver with the Metro
Denver Water Providers, a group of 40 metro cities,
counties and special districts, locally funded the $40
million, 8 year environmental impact study (EIS).
That study grew from a 1981 statewide water
roundtable which represented a variety of interests
from throughout the Colorado, and a system EIS. This
statewide and multi-government cooperation helped in
settlement of key water litigation among Denver,
northern Colorado agricultural interests, and
Colorado's West Slope.
The coalition of 41 governments represents
unprecedented cooperation to responsibly provide an
adequate, stable future water supply for more than half
the state's population.
Thank you for writing and expressing your
concerns.
Best regards.
rely,
Wil iam L. Arm
WLA:ck
• }
~~~ ~~~~~~A ~~ ~.
P.
r
} ~ENVER POST columnist Ed (tiluillen recently
described Colorado as the "state of indeci-
~ stun." The proposed Two Forks Reservoir is a
~ perfect example o[ his point.
Only a few weeks ago, the Environmental Protec-
s Lion Agency called it unnecessary and a potential en-
{ vironmental disaster.
,[ Predictably, Two Forks promoters launched an of-
[ensive to counter that conclusion. 'they steadfastly
pressed for their pet project, rather than seriously
seeking logical solutions to real problems.
s The Denver Water Board has built an excellent
water system. And Two Forks is a manifestation of
their vision. But Two Forks was part of a vision con-
; c_eived in the early 1900s, when the horse-drawn car-
LiaQe was our major form of transportation and in-
door plumbing was only beeinnine to deliver our
I ater.
It is no longer viable for solving today's wafer
problems, any more than Stapleton International
{ Airport or Currigan Mall can meet the needs of the
future. •
'Just as Denver needs a modern airport and a new
convention center, it needs a new water-manage-
ment concept for the 21st century.
Anticipating the eventual demise o[ the Two Forks
i plan, a group of headwaters counties on the Front
Range developed an alternative which would employ
modern concepts o[ water supply. Ilowever, tl-at al-
ternative, developed over tfre last rTeca ec~Fias been
i gnore y cover an re rmy orps o ngr-
r eery.
+•..: The new plan is quite simple: Form a regional wa-
p ter supply authority involving headwaters counties,
urban cities and downstream agricultural counties.
Legislation for the creation of such a River Basin
a Authority exists today. It can be formed by simple
1 • agreement of the counties and cities involved.
The River Basin Authority would do six things:
';., / Store water in existing upstream reservoirs
,~ first. •
/ Store South Platte River water in Chatfield
Reservoir, Cherry Creek Reservoir and a new high
plains reservoir which could be built between Colora-
do Springs and Denver at Fremont Fort.
/ Store irrigation reservoir water upstream iri
Fremont Fort Reservoir by exchange.
/ Tap large groundwater reservoirs underlying
Denver' during times o[ drought to supplement the
river water which has been stored in surface reser-
voirs.
/ Deliver this raw untreated well and river water
to existing municipalities and water districts [or
trealrnent and delivery to their customers only in
accordance with accepted concepts o[ conservation
and metering.
/ Collect all metropolitan treated wastewater
and deliver it by pipeline to the downstream storage
reservoirs for rrse by farmers to grow crops, purify-
ing tare water through the Earth's living filter.
Every law and regulation to'accomplisir this sim-
ple system is in place. It would solve all of Denver's
water supply, wastewater treatment and conserva-
tion requirements well into the 21st century.
Thls simple plan would involve everyone: counties,
cities and farmers. It would increase high plains flat
water recreation, improve Denver water supplies,
prevent fluods, clean up the South Platte River, pro-
vide minimum stream flows [or the river and pre-
serve irrigated agriculture. And it would integrate
ground and surface waters into a comprehensive
plan.
Best of all, it corild begin irnrnediately. And it
wouid represent a modern decision, a first step to-
ward Colorado's becoming a leader in water re-
source management. Ancl it would end Colorado's be-
ing aState of Indecision.
John D. Muslck Jr. Is a Boulder water lawyer.
flo~o al dai
75 south Prontage road
bail, Colorado 81657
(303)476-7000
Cepartmen4 of public wrorks/4ransponta4ion
' ~ 11',il^. 71,rn it n wT:lr T\.f
T0: Ron Phillips
FROM: Skip Gordon
DATE: June 2, 1989
RE: 1989 Ridership Compared to 1988
iM
f
. i ~ , y ". '.,::'a
,:';~ 's4
. ~~y . ~~~
~TA.II.19~9
Below are the statistics showing total ridership for 1989 compared to
that of 1988 for the month of. MAY.
INTOtiVN WEST VAIL EAST VAIL SANDSTONE
1988 12,426 2,018 1,256 742
1989 12;930 2,351 1;671 449
Difference '504 333 415 293
4% UP 16% UP 33o UP 40o DOWN
Grand Total - Intown, W. Vail, E. Vail $ Sandstone - 1988 16,442
Grand Total - Intown, W. Vail, E. Vail ~ Sandstone - 1989 17,401
Difference 959
6 o UP
SG/slh
cc: Charlie Wick
Stan Berryman
4 `
VAIL INFOR~`IATION BOOTIE
VISITORS STATISTICS
APRIL 1989
:;on th
THIS Y EAK
a
LionsHead Village Ma11 Total
visitors 825 +31% 3669 +23% 826 -23% 5320 +14%
Phone Calls 167 -17°~ 745 -16°~ -- ~ 912 -16%
t
l
T ~" fi~~
~~~
o
a
Contacts 992 +19%
~ 826 6232 +8%
UST YEAR
LionsHead Village Mall Total
visitors 629 2977 1084 4690
phone Calls 202 888 0 1090
Total Contacts 831 3865 1084 5780
Hours of Operation
LionsHead Village Mall Total
Hours were the same for both years.
VAIL INFORi•1ATION BOOTEI
° ~~ VISITQRS STATISTICS
May 198
?:ontn
THIS Y GAY.
LionsHead Village Mall Total
visitors 300 3108 +10% - 3408 +20%
Phone Calls 38 648 -15% - 686 -10%
Total Contacts 338 3756 +4% 4094 +14%
LAST YEAR
LionsHead village Mall ~ Total
Visitors ~ 0 2825 0 2825
phone Calls 0 764 0 764
Total Contacts 3589 3589
_ ~ Hours of Operation
LionsHead village Ma11 Total
The LionsHead Booth was not open for Memorial Day Weekend in 1988.
Memorial Weekend was warm & sunny all three days in 1989 and in 1988
Sat. & Sun. were warm & sunny and it snowed on Mon.
s
-O'
DESIGN REVIEW BOARD AGENDA
JUNE 7, 1989
3:00 P.M.
SITE VISITS
12:30 P.M.
5 1. Vail 21 - Color Change
MOTION: Sante SECOND: Herrington VOTE: 5-0
Consent approval upon conditions:
1). Conditional T1.11 paneling secured.
2). Vertical strip north, same as concrete.
3) .Sign to be maintained.
1 2. Lionsmane II - Color Change
MOTION: Osterfoss SECOND: Herrington VOTE: 5-0
Approved with the following conditions:
1). Cribbing be womanzied on cut ends.
2). Embankment be landscaped with "snow/summer" a
layer of "coral berry" and foundation shrubs at
the base of the retaining wall.
2 3. Ram Development Residence
Lot 3, Lions Ridge Filing 2
MOTION: Herrington SECOND: McCluskie VOTE: 5-0
Conceptual approval.
6 4. Katz Residence ( Conceptual)
Lot 6, Vail Village 10th Filing
MOTION: SECOND: VOTE:
TABLED
.~
~~!
3 5. Snow Residence
Lot 28, Vail Village West #1
MOTION: SECOND: VOTE:
NO VOTE
8 6. Nystrom Residence (Conceptual)
Lot 7, Block 3, Vail Village 11th Filing
MOTION: SECOND: VOTE:
NO VOTE
11 7. Hazard Mitigation and Landscape Plan
Lots 4 & 5, Block 2, Bighorn Subd. 1st Addition
MOTION: SECOND: VOTE:
TABLED
9 8. Rose Residence (250 Ord.) (Final)
Lot 1, Block 1, Vail Village 11th
MOTION: Herrington SECOND: Osterfoss VOTE: 4-0
Approved with the following conditions:
1). Circuler driveway to be 12' width, not 15' as
presented.
7 9. Morris Residence
Lot 9, Vail Valley 3rd Filing
MOTION: Sante SECOND: McCluskie VOTE: 5-0
Approved with the following conditions:
1). Revised colors to be submitted to staff for
approval..
.~-
r
10 10. The Ledges - 6 Single Family Homes
Getty Oil Parcel
MOTION: SECOND: VOTE:
Conceptual - NOT VOTE
4 11. Cascade Crossing Retail Center
1031 South Frontage Road West
MOTION: SECOND: VOTE:
Conceptual - NO VOTE
MEMBERS PRESENT: MEMBERS ABSENT:
Ned Gwathmey
Peggy Osterfoss
Jamie McCluskie
Pat Herrington
Roy Sante
STAFF APPROVALS:
Wiest Garage Door
Apollo Park - Replace existing deck