Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
1989-07-11 Support Documentation Town Council Work Session
VAIL TOWN COUNCIL WORK SESSION TUESDAY, JULY 11, 1989 2:00 p.m. AGENDA 1. Discussion of Colorado Ski Museum Agreement 2. Discussion of Heritage Cablevision Franchise Agreement 3. Vail Valley Marketing Board Presentation 4. Vail Community Theatre Request for Funds 5. Discussion of Town Council/Vail Metropolitan Recreation District Committee Meeting 6. Discussion of SIGLU 7. Planning and Environmental Commission Report 8. Information Update 9. Other 10. Site Visits - Road Improvements 11. Executive Session - Legal Matters VAIL TOWN COUNCIL WORK SESSION TUESDAY, JULY 11, 1989 2:00 p.m. EXPANDED AGENDA 2:00 1. Discussion of Colorado Ski Museum Agreement Action Requested of Council: Receive update from Ski Museum Board representatives as to their plans and budget constraints for moving the museum. Background Rationale: Please see the enclosed letters and agreement for the background information we have. 2:20 2. Discussion of Heritage Cablevision Franchise Agreement Kevin Rice Larry Eskwith Action Requested of Council: Discuss final draft, and set dates for first reading of the ordinance and adoption of the franchise agreement. 2:40 3. Vail Valley Marketing Board Presentation Frank Johnson Action Requested of Council: Receive report and discuss. Background Rationale: This is the Marketing Board's monthly update presentation for the Council. 2:55 4. Vail Community Theatre Request for Funds Tom Gorman Action Requested of Council: Receive presentation and approve/deny request for TOV funding. 3:10 5. Discussion of Town Council/UMRD Committee Meeting Eric Affeldt Tom Steinberg Action Requested of Council: See enclosed memo. 3:25 6. Discussion of SIGLU Larry Lichliter Peter Patten Action Requested of Council: Decide to either allow the SIGLU to proceed to PEC for exterior alteration approval consideration, or to not allow the project to go through the process. Background Rationale: The Council directed Vail Associates (the applicant) to explore the opinion of the Lionshead merchants/property owners regarding the SIGLU. Also, information from Fire and Public Works Departments was requested, and is enclosed. 3:40 7. Planning and Environmental Commission Report Peter Patten 3:50 8. Information Update Ron Phillips 4:00 9. Other 4:10 10. Site Visits - Road Improvements Stan Berryman Look at roads to be reconstructed to determine whether funds should be held in reserve for the parking structure, instead. 4:50 11. Executive Session - Legal Matters ~. J iAl 75 south frontage road vail, Colorado 81657 (303) 476-7000 office of the flown manager June 29, 1989 Mr. Robert C. Johnstone President Colorado Ski Museum P. 0. Box 1976 Vail, Colorado 81658 Dear Mr. Johnstone: VA][I,19~9 Thank you for your letter of June 27 concerning the new.. budget information for the Ski Museum move to the Vail Village Inn Plaza. The next meeting of the Vail Town Council will be on July 11, and we have scheduled the Ski Museum to meet with the Council at the Work Session at 2:00 p.m. In looking over the $85,000 cost estimate provided with your letter, it appears that there are costs included for moving the entrance to the new Ski Museum space. The lease between the Ski Museum Board and the Town of Vail does not include costs for moving the entrance as a part of the Town's responsibility. If those costs are, in fact, included in this estimate, I request that you prepare an additional estimate without them. It would be helpful if we could have the new cost estimate by Friday, July 7, 1989. I believe a review of the correspondence from the beginning discussions of this move will show that the Town of Vail agreed to provide finished space for the Museum to move into. We have discussed previously the fact that the exhibits and how they are displayed would be the .responsibility of the Museum. The Colorado Ski Museum Board has entered into a lease agreement with the Town of Vail which mentions nothing about financing new exhibit galleries for the Museum. The last we had heard from you, the Museum would be moving after the World Championships and before the summer season. Also, the last information we had was that the Ski Museum would move into approximately half of the available space with expansion to take place at a later time when the Museum could afford it. I am concerned 7/.. i ! I. • . M ., Mr. Robert C. Johnstone June 29, 1989 Page 2 that further requests are arising at this late date. It may be that the new entryway and use of the entire space, which I am sure would be desirable for you, could be postponed to a later phase when the Museum Board finds it more affordable. We sti11 feel it is very important that the Ski Museum retain Vail as its home and want to discuss how to work through these problems with you. Sinc ly, i Rondall U. Phillips Town Manager RVP/bsc r_c: Vail Town Council Steve Barwick Gary Murrain e ~' J ' • C®I.® ® S~ SIB ®~ ~ SUN ~ 7 t~~9 ne 27, 1989 Mro Ron Phillips • Town Manager Town of Vail ' 75 So Frontage Road Vail, CO 81658 Dear Mro Phillipse I am writing to request further. consideration by the Vail Town Council regarding the proposed move of the Colorado Ski Museum - Ski Hall of Fame to the Vail Village Inn Plazao From initial discussions with the town, the Museum staff and Board of Directors were under the impression that the new loca- tion offered to the Museum would be finished space, and would be ready to be occupied by new Museum galleriesa As you will re- call, our intent from the beginning was to comply with the wishes of the Town of Vail, while not incurring any additional expendi- ture from the Museum°s limited budgeto Preliminary architectural, finish, and design work figures indi- cated that approximately $200,000 was required to adequately fin- ',• ish the space and recreate Museum exhibits in the new locationo After considerable review and changes to the interior finish work, we have been able to reduce these finish costs to $85,145a Attached for your review is a budget submitted by Duddy Viele . Construction, Inco on this projecto . , ,;. . ~_..,~ In addition to finish costs, the Museum is now placed in a posi- tion where we must raise up to $85,000 simply to recreate our ex- ~- hibits in the new spaced I am sure you can understand that our ~~~ ~ existing galleries will not be appropriate to'move "as is'° into ... '~.~' the Vail Village Inn Plazao The galleries have been constructed to fit perfectly into our present Museumo However, there is less y~'~~,~ - amount of useable wall space in the new location, and exhibitry ~~ .:. display cases must be constructed to accommodate many artifactso ' ~ I am requesting that the relocation of the Colorado Ski Museum - Ski Hall of Fame be scheduled for the next Town Council meeting, to review the status and reconsider the financial contribution available to the Museum from the Towno The Museum Board of Di- rectors feels that the Town of Vail must pay the full amount of $85,145 to finish the interior of the space; and must work out some financing arrangement with the Museum to allow us to com- ~- plete the move in a timely and professional mannero We do not want to be relocated and forced to open in a new space with old exhibitry designsa which will reflect poorly on not only the Col- orado Ski Museum but the Town of Vail°s planning and Town Council motives as wello .. +~ ..~+: P.O. Box 1976, Vail, Colorado 81658 0 303/476-1876 "- - ~ -, . r ••~{•'i •~~ I look forward to an opportunity to disucss this further with you and the Vail Town Council. Sincerely, ~Gt~ ~. ,./~}6~c s ~~ ass Robert C. Johnstone President Encl. cc: :Executive Committee Members :Relocation Committee Memebers (Kent Rose -;9..17,C5,"_,41,49,`~7,65,7',~^-~1,E:~4,97,a5,F~•_,C1,C9,D7. kL'N DATE: 02-Jun-E9 . ~ ' ~ ~ Page 1 of 4 C ~~„~ 5 DUDD4'-VIEIE GDNSTRUCTIDN, INC 10U0 S. FRDI;TAfiE RD. HE5T VAII, COLDkADD 81651 303-4,6-3082 Project: COLORADO Sk;I ffUSEUH Architect: BDB FULLER REc~: ~u~ 2 7 ~~~ ~~ ~ ~ ~ , ~I ~~ DIV I OE5CRIF'TION ~ QUANTITY ~ ~ ~ TOTAL I ~ Pl~'~' NOTES _ , _ ~ .. 02 15ITE aDRK ~ 4,422. 5(15 (!tv 5 a.i:r-`5> ; .. .. U3 U4 .CONCRETE ~NA50NRY ~ 538 ; 0 ~ 1 ~ IS (eel . S tcuri~ i y5 ;. C pq..tc.lw~ in Di v ~ ~ ~5~-~•~cv> ; 05 ~ STEEL 2, b89 . 14 (o (y ( ~ - rw s fa.a:- r~cS.~nrSS , S.c.;Y. ; .. Ob IdDOD & PLASTICS 18,018 . -I~(c5 LCR-~i~{-~~ (~,,,,.;L~,;nS] a;~C.ce .. 07 IWDISTURE PRDTECTION~ 801 ; yy2 (:~ ~`bb a.uc~n inS~fior. ~~~~ ;I ~. OB 09 {DDDRS & dINDDtIS (FINISHES I 1 3,455 I 23 b47 ~ ; (2} I ( 1 big r1~u:t~.~ _I?rd ~ f x ~ ~ ; . .. 10 P 1 , 1~ ,2HS` (~.~, c~,~- ac,l~n-bo,~.r,.~ ,.on- e~;~c.~l,. ~ ~(,,~5.~> 5 5 ECIALITIES 3,286 . -~, $VS (gyp ~~o~~o~~ ~~v ~~ 11 IEOUIPHENT 0 ; ; .. 12 ~FURNISHIN6S ~ 0 ; ; II 13 SPECIAL GONSTRUCT'N; 0 ; ; .. 14 ~CDNVEYIN6 SYSTE145 ~ 0 ; ~ ; 15 IFiECHANICAL 11,592 ~ ~ S , i5 b (S~rn,p~D•-r ~si.Lt..~s~- -~-~ Yn~'"'~ ~-) 1 .I 16 (ELECTRICAL 16,192. it~.335 ~~ 18 ~PERHITS,FEE5,INSUR ~ 0 ; ; .. ~~ ~~ - I TOTAL ~ ~ 85,145 ~ ; , = '~ ~ RAN DATE: 02-1ur~-84 ~ Page 2 of 4 RUDDY-NIECE C(INSTRUCTI(IN, INC 1000 S. FR~NTASE k0. iiEST VA1L, C[ILDkF~00 81651 30-476-3082 Project.: COLDkA00 5K1 MUSEUM Architect: B06 FULLER ;; ; ; ; ; ; ;;DIN ; DE5CfiIPTIDN ;AUANTITY . 11 1 ; ; TOTAL ; NOTES ; 1 1 _I ; ; ; ; U2 SI TE:ili7kK ; ; ; ;; ;debOl1t10n ; ; 3,824 ; 1 ;; ;landscaping ; ; 598 ~ ; ~~ 02 ;Tot. Division 2 ; ; 4,422 ; ; 11444444444444444444444444444444444444444 11 44454444b444444444444444444444444444444i44444 44444444444444444444444441 1 ~; 03 ; CDNCRETE ; ; ;; ;footings & Malls ; _ 179 ; 1 1 ;; ;slabs c~n grade ; ; 359 1 1 1 ;;----;-------------------'---------' --- 1 1- ----------- -; 1 ~~ G3 ;Total Division 3 ; ~ 538 ; 1 ; 11444444444444444444444444444444444444444 444444444b4444444!r444444444444444444444444444 44444444444444444444444441' .; 04 ; MASDNkY ; ; ; ;; ;flagston4i/payers ; ; 0 .see div. 9 ; ;; 04 ;Total Division 4 ; ; 0 ; 1 '1r4'1.44444444444R44444444444444444444444444 444i444444444444R 444444444!r 444444444444444444 44444444444444444444444444 ;; OS ; STEEL ; ; ; ; ;; ;structural ~ ; 1,135 . ; ;; ;hand rails ; 1554 1 1 I- 1---- --------°--; 1 ;~ 05 ;Total Division 5 ; ; 2,689 ; ; 44!r44444444444444444444444444444444444~.44444!r44444444444444444444444444444444444444444 44444444444444444444444444 ~; 06 ; CAkPENTkY ; ; ; ;; ;fra~iog & materials; ; 8,544 ;includes scaffold rental ; ;; ;fasteners/hangers ; ; 418 ; ' 1 ;; ;cabinets & varsities; ; 9,056 ;includes counter tops ; It----;- ,- 1- 1 ; ;; U6 ;Total Division 6 ; ; 18,0.18 ~ ' 1 44444444444!444h 4444444444h44444444444444!r4444b444444444444444444444444444444444444444 44444444444444444444444444 ~~ 07 ;r(lISTURE PROTECTIDN; ; ; ; ;; ;caulking ; ; 131 ; 1 1 ;; ;insulation ; ; Y3q ; 1 1 ;; ;flashing ; 329 ;; Ibituthene ; 102 ; ; 11----' -------~-------'---' ------ ' --- 1.1 1- ,- --1- --------- ' --, ; ;; 07 ;Total Division 7 ; 801 ; ~ 1 4444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444 ' F ~ RUN DATE: U2-Jun-89 DUDDY-VIELE CDNSTRUCTIDN, INC 100U S. FRDNTA6E RD, bES1 VAIL, C4LDRAGO 81651 303-476-3082 Project: COLORADO Sk;I pUSEUW Architect: BDB FULLER ~~ ~ ~ ~ -, ~IDIV ~~ ~ DESCRIPTION ;pUANTITY ~ ~ ; TOTAL ~ NDTES ~ , ; , ~~ _ ~ ~ ~ , 08 ~ DDDRS,'bIINDDbS ~~ .wood doors ~ 359 ~~ lhardware ; ; 478 ; ~~ laindows ; 1,434 ~ ; ~~ Soetal fraoes 1 1,434 ~ ; ~~ .interior glazing 251 ~ ; ~~ 08 Total Division 8 ~ - ~ 3,955 ; ; 441r4441r4444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444 4444b ~~ 09 FINISHES ; ; ~~ Istucco ~ 2,629 ~ ; ~~ Idrywail ~ ~ 15,318 ~ ; !~ Mile ~ ~ 263 ~ ; ~~ .painting ~ ~ 4,422 ; ; ~~ ;aallcaverings ; 0 .by owner ~~ .carpet ! ~ 0 .by omner ; ~~ final cleanup ~ 1,016 ~ ; .. 09 ;Total Division 9 ~ ; 23,647 ; 444444444444444444444444444444444444444444'Y 4444444i44444444444444444444444444444444444444444444444444414444 44444 ~~ 10 ~ SPECIALTIES ; ; ~~ Isignage I 299 exit k code related signs to be allowance ; .. ;f la sbanr,ers ; 9 ; 4 2,3 0 ,allowance installed , ~~ ;sign Materials ; ~ 598 ' ~; 10 ITctal Division 10 ~ 3,286 ~ ; 44444444444444444444444444444'1rb44444444444444444444441r44444444444444444444444444444444444444444444444444444 44444 11 ~ EDL'IFpENT ; ; .~ ~appliar,:es t p ; ~~ 11 Total Division it ~ ; 0 444444 4444'1r4444444444444444444444b4444444444444444444444444444445444444444444444444444444444444444444444444 44444 ~~ 12 ~FUF;NISHINSS ; ; ~~ ~~ ~~ 12 ;Total Divisicn 12 0 444444 444444444444444444444444444444444444444444444444444444444444444444444b4444444444444444444444444444444 44444 ~~ 13 ~SPEGIAL CDNSTRUCT'N~ ~ ; pool I ~ 0 ~ ; ~~ 13 ~Tetal Division 13 ~ ; 0 ; 444444 4444444444441r444444444444444444 444444444444444444444444444444444444444..4444444444444444444444444444444 44444 Page 3 of 4 "~~l °~kUN DATE; 02-Jun-e9 DUDDY-VIELE CONSTRUCTION, INC Project: CQLORADO SkI MUSEUPf 1000 S. FkONTASE RD. ME5T VAIL, COLOFF~DO 81651 Architect: BOB FULLER ~0 -41'b-; 082 „ ~ ~ ~ , „ ~~DIV ~ DESCF;IPTION ~(IUANTITY ~ TOTAL ~ NDTE5 „ „ _, ~ ,_ , ~~ 14 ~CONVEYIN6 SYSTEMS ;; !jack holes ~ ~ 0 ; ~~ 14 {Total Division I4 ~ ~ 0 I 4444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444444 .. 15 ~ MECHANICAL ;, (ventilation ~ pluibt ~ 8,126 I ..sprinkler ~ ~ 3,466 I. 15 Total Division 15 ~ ~ 11,542 44444444444444444444444i4444444444444444444444444b44444444444444444444444444444444444444444444444444444444444444 .. 16 ~ ELECTRICAL ~~ electrical ~ 15,174 ~~ .phones ~ ~ 41.8 ~~ Ib Total Division 16 ~ 16,192 444444444444444h44444444444444 44444444444 4444444444444ii44444444444444444444444444444444444444444444444444444444 ~~ 18 ~ FEES b PERMITS ~~ Building Pe nits ~ I 0 .by owner ~~ ~Bldr"s Risk Incur ~ ~ 0 .6y owner ~~ .Tap Fees ~ ~ 0 shy owner „ ---~ ~ ~ , ~~ 1B !Total Division 18 ~ 0 4444444444444444444444444 44444 44444444444 44444444444444444444444444444444444444444444444444444444444444444444444 Page 4 of 4 ~~ TOTAL BU-6ET ~ 85,145 TOWN OF VAIL/COLORADO SKI MUSEUM LEASE AGREEMENT THIS LEASE made and entered into this ~~"day of , 1989, by and between the TOWN OF VAIL, a Colorado municipal corporate n, hereinafter referred to as "the Town," and the COLORADO SKI MUSEUM, a Colorado not-for-profit corporation, hereinafter referred to as "Lessee." WITNESSETH: WHEREAS, the Town now owns a condominium unit in the Village Inn Plaza Phase V condominiums, more particularly described as Unit No. Village Inn Plaza Phase V condominiums in accordance with the Condominium Declaration and Condominium Map thereto in the County of Eagle, State of Colorado; and WHEREAS, the Lessee has managed and operated a ski museum and Ski Hall of Fame within the Town of Vail for the enjoyment and benefit of the inhabitants and visitors to the Town; and WHEREAS, the Town is willing to make a commitment to lease space to the Lessee and the Lessee is willing to lease such space space from the Town. NOW THEREFORE, in consideration of the covenants and agreements contained herein, the parties hereto agree as follows: 1. Lease of Premises The Town hereby leases to Lessee and Lessee hereby leases the Town Condominium Unit Village Inn Plaza Phase V condominiums according to the Condominium Declaration and Condominium Map thereof. 2. Term The term of this lease shall commence January 15 1989 and shall terminate on ~ 1999 unless sooner terminated pursuant to the terms of this lease. The Town shall have the right at any time during the lease term to require Lessee to move from the premises to another reasonably similar premises owned by the Town upon the giving of ninety (90) days written notice to the Lessee. Should the Town require Lessee to move to a different premises as set forth herein, the Town shall be responsible for the payment of all the reasonable expenses relating to the Lessee's change of premises. Upon the expiration of the lease term, if the Lessee has faithfully complied with the terms and conditions of the lease and is not in default of any of the terms thereof, the Town and the Lessee shall enter into good faith negotiations for a new lease. Nothing contained in this paragraph shall be deemed to obligate the Town to enter into a new lease with the Lessee. 3. Rent Lessee shall pay no rent to the Town for the initial two (2) years of the lease term. Commencing with the first day of the third year of the lease term, Lessee shall be obligated to charge an admission fee to the general public of not less than orie dollar ($1.00) per adult person for admission to the Ski Museum and shall be further obligated to continue such admission fee throughout the full term of this lease agreement. Notwithstanding the foregoing, members of the Colorado Ski Museum will only have to pay one (1) admission fee for each year during the term of this Agreement. Commencing with the first day of the third year of this lease agreement and continuing through the last day of the fourth year of this lease agreement, Lessee shall pay to the Town as rent the sum total of all of said admissions i~ees up to a maximum amount of three thousand five hundred dollars ($3,500.00) per annum. Said rent shall be payable to the Town on or before ten (10) days from the last day of the third and fourth lease year. Commencing with the fifth year of the lease .term and continuing throughout the remaindE~r of the lease term, Lessee shall pay to the Town as rent the sum total of all of s<~id admission fees up to a maximum amount of seven thousand five hundred dollars ($7.,500.00) per annum payable on or before ten (10) days from the last day of each lease year. 4. Le<~sed Premises Lessee shall use and occupy the premises solely as a ski museum presenting exhibits and films relating to the history of skiing for view by the general public, and for no other purpose. Lessee shall not use or permit the premises to be used for any purposes prohibited by any, federal, state, county, or municipal law. Lessee shall use the premises in a careful, safe and proper manner. 5. Construction Improvements The Lessee shall accept the premises in its present condition and shall cause to be designed and constructed, subject to paragraph 10 hereof, a facility within the premises that will allow it to accomplish its purposes under this lease. Such construction shall include, but not be limited to the following: a. Adequate heating and ventilating for the premises that shall be connected to the existing central systems in the Village Inn Plaza Phase V building; b. Basic lighting for the premises and any specialty lighting that may be necessary; c. Carpeting and paint 'in colors mutually agreed upon by the Town and Lessee; -2- d. A stairway from the entrance area of the premises to the lower level; e. Such exhibits and other display facilities as available funds allow. As further consideration for the Lessee moving from its present location to the premises, the Town shall pay the cost of the construction of the items set forth in paragraphs a through a hereof not to exceed the sum of seventy-five thousand dollars ($75,000) to the Lessee to be used solely on such design and construction. The Town and the Lessee shall agree upon the mechanics of such payment, but in no event shall any payments of said amount, or part thereof, if presentation of appropriate invoices by the Lessee to the Town is timely made, be delayed or held up by the Town so as to cause the Lessee to violate any of the provisions of this lease relating to times of performance, mechanic's liens or other similar matters. 6. Lessee shall pay to the Town all taxes, excises, license fees and permit fees of whatever nature, applicable to its operation in the premises and to take out and keep current all licenses, municipal, state or federal required for the conduct of its business hereunder. 7. Utilities Lessee shall pay all charges for gas, electricity, light, heat, power and telephone or other communications services used, rendered, or supplied upon or in connection with the premises and shall indemnify the Town against any liability or damages on account of such charges. 8. Acceptance of Premises Lessee shall, by taking possession of the premises, be deemed to have accepted the premises and to have acknowledged that the premises were in good order, condition and repair when possession was taken. 9. Town's Access to Premises The Town and its agents shall have the right to enter the premises at all reasonable times to examine them, to show the premises to prospective purchasers, mortgagees, lessors or lessees, and to make and perform such cleaning, maintenance, repairs, alterations, improvements or additions as the Town may be required to perform under this lease or as the Town may deem necessary or desirable for the safety, improvement or preservation of the premises. If Lessee shall not be personally present to permit an entry into the premises, at any time when for any reason an entry therein shall be necessary or permissible, the Town or the Town's agents may enter the premises by use of a master key, or may forceably enter the premises, without rendering the Town or its agents liable therefor. -3- 10. Alterations by Lessee Lessee shall make no permanent alterations, additions or improvements in or to the premises without the Town's prior written consent. All such work shall be performed iri a good and workmanlike manner. All permanent alterations, additions or improvements upon the premises, including all panelling, partitions and the like, shall, unless otherwise agreed at the time the Town's consent is obtained or unless the Town requests removal thereof as provided in this agreement, become the property of the Town,, and shall remain upon, and be surrendered with the premises, as a part thereof at f:he end term of this lease. 11. Maintenance and Repairs Lessee shall take good care of the premises and the fixtures and improvements therein, including, without limitation, any storefront, doors, plate glass, windows, heating and air conditioning system, plumbing, pipes, electrical wiring and conduits, and at its sole cost and expense, perform maintenance and make repairs, restorations or replacements as and when needed to preserve them in good working ordE~r and first class condition. 12. Mechanics Liens a. Lessee shall pay or cause to be paid ail costs for work done by it or cause to be done by it in or to the premises and Lessee shall keep the premises free and clear of all mechanics liens and other liens or claims of any kind on account of work done for Lessee or persons claiming under it. Should any liens be filed or recorded against the premises or any action affecting the title thereto be commenced, Lessee shall give Landlord written notice thereof. Lessee shall thereafter cause such liens to be removed of record within five (5) days after the filing of the liens. If Lessee shall desire to contest any claim of lien, it shall furnish the Town with security satisfactory to the Town of at least one hundred percent (100%) of the amount of the claim, plus estimated costs and interest. If a final judgment establishing the validity or existence of a lien for any amount is entered, Lessee shall pay and satisfy the same at once. b. At least thirty (30) days prior to the commencement of any work to the premises, by or for Lessee, or anyone claiming under Lessee, Lessee shal] notify the Town of the proposed work and the names and addresses of the persons supplying labor and materials for the proposed work. During and prior to any such work on the premises, t;he Town and its agents shall have the right to go upon and inspect the premises at: all reasonable times. -4- 13. Casualty and Obsolescence a. If the premises shall be damaged by fire or any other cause and the Village Inn Plaza Phase V Condominium Association and the Town shall elect to repair the damage, this lease shall continue in full force and effect and, if such damage shall render all or part of the premises untenable, the minimum rent due hereunder shall be proportionally abated (based on the proportion of the premises rendered untenable) from the date of such damage until such time as the premises have been made tenable. However, there shall be no abatement of rent if the fire or other cause of the damage shall be caused by the negligence or misconduct of the Lessee, its agents, servants or employees, or by any other persons entering upon the premises or the building by the expressed or implied invitation of the Lessee. b. If the premises or the Village Inn Plaza Phase V condominiums are damaged by fire or other cause (although in the latter case the premises may be unaffected) and the Association and the Town shall elect not to repair such damage, then this lease shall automatically terminate upon and effective as of the giving of notice by the Town of such election. Thereupon within thirty (30) days of the receipt of such notice, Lessee shall surrender to the Town the premises and all interest under this lease and the Town may reenter and take possession of the premises and remove Lessee therefrom. Lessee shall pay rent duly apportioned as of the date of such termination of this lease, and the Town and the Lessee shall be free and discharged from all obligations arising hereunder after the date of such termination. c. The Town shall notify Lessee of the decision of the Town to repair any damage to the premises promptly after making such decision. If the Town elects to repair, reconstruct or restore the premises or the building after any such damage, the Town shall promptly commence and with due diligence complete the repair, reconstruction and restoration of the premises so far as practical to the condition in which the premises or the building were immediately prior to such damage. The Town shall not be responsible or liable for the timely and proper performance of any repairs, reconstruction or restoration to be done by the Village Inn Plaza Phase U Condominium Association. In no event shall the Town or the Association be required to make any repairs or replacements to or of any of Lessee's lease hold improvements, fixtures, equipment, furniture, furnishings and personal property. Should the Town insure the personal property, furnishings, and equipment located within the premises, any proceeds received by the Town for damage to said personal property shall become the property of the Lessee. -5- 14. Assignment and Subletting Lessee shall not assign, convey, mortgage, hypothecate or encumber this lease or any interest herein or sublet all or any part of the premises (any and all of which hereinafter shall be referred to as a "transfer") without the prior written consent of the Town in each instance. Any attempt to transfer without the Town's prior written consent shall be void and shall confer no rights upon any third person. EJithout limiting the generality of the foregoing, if Lessee is not a natural person, any merger, dissolution, consolidation or other organization of Lessee, or a.ny sale, transfer, pledge or other disposition of corporate stock or voting securities of Lessee or other ownership interests if Lessee is not a corporation which results in a change in the voting control of Lessee for which involves teri percent (10%) or more of the voting securities of Lessee or other ownership interests if Lessee is not a corporation, all on an accumulative basis, shall be deE~med a transfer subject to the provisions of this section. Any transfer, assignment. or sale by operation of law and any involuntary assignment of this lease or any interest of Lessee hereunder or any interest of Lessee in the premises shall be deemed a transfer subject to the provisions of this section. 15. Insurance Lessee shall not at any time carry any stock of goods or do or suffer or permit anything to be done in or about the premises that is hazardous or that in any manner will violate, suspend, void, make inoperative or tend to increase the rate of any policies of insurance of any kind at any time carried by the Town upon the premises. 16. Injury to Person or Property a. Lessee covenants and agrees that the Town, its agents, servants and employees shall not at any time or to any extent whatsoever be liable, responsible or in any way accountable for any loss, injury, death or damage to persons or property or otherwise which at any time may arise in connection with the premises or be suffered or sustained by Lessees its agents, servants or employees, or by any other person rightfully on the premises for any purpose whatsoever, whether such loss, injury, death or damage shall be caused by or in any way result from or arise out of any act, omission or negligence of Lessee, its agents, servants or employees or of any occupant, subtenant, visitor or user of any portion of the premises, or shall result from or be caused by any interference with or obstruction of deliveries to the premises by any person or by the loss or destruction by any person of furniture, inventory, valuables, files or any other property kept or stored on or -6- about the premises or by any other matter or thing unless resulting solely from the gross negligence or willful misconduct of the Town, its agents, servants or employees. Lessee shall forever indemnify, defend, hold and save the Town free and harmless of, from and against any and all demands, claims, causes of action, liabilities, losses, damages or judgments on account of any of the foregoing provided that this indemnity shall not extend to damages resulting solely from the gross negligence or willful misconduct of the Town, its agents, servants or employees. The foregoing obligation to indemnify shall include indemnification to the Town for all costs, expenses and liabilities (including, but not limited to, attorneys fees) incurred by the Town in investigating and defending any of the matters covered hereby. Lessee hereby waives all claims against the Town, its agents; servants and employees for damages to furnishings, fixtures, Lessee's improvements and betterments, goods, wares, merchandise or other property, in or upon or about the premises, and for injuries to or death of persons in or about the premises, and for loss of income or goodwill in connection therewith arising from any cause at any time other than damages resulting solely from the gross negligence or willful misconduct of the Town, its agents, servants or employees. b. The Town, its agents, servants and employees shall not be liable for injury, death or damage which may be sustained by the improvements, betterments, persons, goods, wares, merchandise or property of Lessee, its agents, servants, employees, invitees or customers or any other person in or about the premises caused by or resulting from fire, explosion, falling plaster, steam, electricity, gas, water, rain or snow, leak or flow of water, rain, or snow from or into part of the building or from the roof, street, subsurface or from any other place or by dampness of from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the building or the premises, or whether such damage or injury results from conditions arising upon the premises or upon other portions of the building or from other sources. The Town shall not be liable for any damage arising from any act or neglect of any other lessee or occupant of the Village Inn Plaza Phase U or from any owner or occupant of any residential or commercial unit in the building. c. If the Village Inn Plaza Phase V Condominium Association shall at any time determine the building is obsolete and shall adopt a plan to reconstruct and renovate the building, the Town shall give the Lessee written notice thereof. Upon giving such notice, the Town shall have the option to terminate this lease by giving written notice of termination to the Lessee within thirty (30) days after the giving -7- of notice of the Association's actions. If the Lessee shall not so terminate this lease, this lease shall continue in full force and effect and, if any reconstruction and renovation of the building shall render all or a part of the premises untenable, the minimum rent due hereunder sha11 be proportionally abated during the period in which all are a part of the premises is untenable as certified by the Association or the tenants' architect. Any such abatement of minimum rent shall be in the amount equal to the proportion thereof the gross leasable area of the premises rendered untenable there to the premises gross leasable area (as the same may change over the time as the reconstruction and renovation proceeds). If Landlord elects to terminate this lease, this lease shall terminate as of the date any reconstruction or renovation in the premises shall commence or the date on which the sale of the building shall be closed, as the case may be. Thereupon, Lessee shall surrender to the Town the premises and all interest therein under this lease and the Town may reenter and take possession of the premises and remove Lessee therefrom. Lessee shall pay rent, duly apportioned as of the date of such termination of this lease, and the Towri and Lessee shall be free and discharged from all obligations arising hereunder after the date of such termination. 17. End of Term Upon the expiration or other termination of the term of this lease, Lessee shall prompi:ly quit and surrender to the Town the premises, broom cleaned, in good order and first class condition, ordinary wear excepted. If Lessee is not then in default herE~under, Lessee may remove from the premises any trade fixtures, equipment, <~nd movable furniture and exhibits stored therein by Lessee, whether or not such tr<~de fixtures or equipment are fastened to the building, provided however, that under no circumstances shall any trade fixture or equipment be removed without the Town's -vritten consent if such fixture or equipment is used in the operation of the building or improvements or the removal of such fixture or equipment will result in impairing the structural strength of the building or improvements. Whether or not Lessee is in default hereunder, Lessee shall remove such alterations, additions, improvements, trade fixtures, equipment and furniture as the Town shall require. Lessee shall fully repair any damage occasioned by the removal of any trade fixtures, equipment, furniture, alterations, additions and improvements. All trade fixtures, equipment, furniture, inventory, effects, alterations, additions and improvements not so removed shall conclusively be deemed to have been abandoned and may be appropriated, sold, stored, destroyed, or otherwise disposed of by the Town without notice to the Lessee or any other person and without obligation to account -8- therefor; and Lessee shall pay the Town for all expenses incurred in connection with such property, including, but not limited to, the cost of repairing any damage to the building or premises caused by removal of such property. Lessee's obligation to observe and perform this covenant shall survive the expiration or other termination of this lease. 18. Holdover If Lessee or any assignee, subtenant or other transferee of or from Lessee shall remain or continue to be in possession of the premises or any part thereof after the end of the term of this lease, at the Town's option, Lessee shall be deemed to be illegally retaining possession or shall be deemed to be a month-to-month tenant of the premises on all the terms and conditions of this lease except that the monthly rent shall be in an amount equal to three hundred percent (300%) of the monthly rent payable immediately prior to the end of the term. In the vent of any unauthorized holdingover, Lessee shall indemnify the Town against all claims for damages by any person to whom the Town may have leased all or any part of the premises effective after the termination of this lease. Nothing herein contained shall be construed to limit the Town's right to obtain possession of the premises upon termination of this lease by unlawful detainer proceedings or otherwise in the event that the Town does not exercise its option to treat the continued possession by the Lessee as a month-to-month tenancy. 19. Subordination This lease is subject and subordinate to that certain condominium declaration for the Village Inn Plaza Phase U condominiums dated , 19 recorded in the real property records of Eagle County, Colorado in Book at Page (the declaration), to the Articles of Incorporation and Bylaws of the Condominium Association of the Village Inn Plaza Phase V condominiums and to all renewals, extensions, modifications, consolidations and replacements thereof. Lessee shall have none of the rights (including, but not limited to, voting rights) of a condominium unit owner under the declaration or otherwise or of a member of the Association, and all such rights are and shall remain the rights of the Town. 20. Default The occurrence or existence of any one or more of the following events or circumstances shall constitute a default hereunder by Lessee. a. Lessee shall fail to pay when due any installment of rent, additional rent or any other sum payable by Lessee under the terms of this lease; -g- b. Lessee shall neglect or fail to perform or observe any of the covenants herein contained on Lessee's part to be performed or observed and Lessee shall fail t;o remedy such default within ten (10) days after the Town shall have given to Lessee written notice specifying such neglect or failure (or within such period, if any, as may be reasonably required to cure such default if it of such nature that it cannot be cured within such ten day period, provided that Lessee commences to remedy such default within such ten day period and proceeds with reasonable diligence thereafter to cure such default); c. This lease or the premises or any part thereof shall be taken upon execution or' by other processes of law directed against Lessee or shall be taken upon or subject to any attachment at the instance of any creditor of or claimant against Lessee, and such attachment shall not be discharged or disposed of within fifteen (15;) days after the levy thereof; d. Lessee shall vacate or abandon the premises (which shall be defined to include ,-but not be limited to, any absence by Lessee from the premises for five (5) or more days while otherwise in default under this lease) or lock them so as to prevent entry therein of the Town or its representatives as permitted by the terms of this lease; e. Lessee shall remove or attempt to remove any goods or property from the premises other than in the usual course of business; f. Lessee or any guarantor of Lessee's obligations hereunder shall: i. Admit in writing its inability to pay its debts generally as they become due, ii. Make an assignment of all or a substantial part of its property for the benefit of creditors, iii. Apply for or consent to or acquiesce in the appointment of a receiver, trustee or liquidator of Lessee or such guarantor or of all or a substantial part of Lessee's or such guarantor's property or of the premises or of Lessee's interest in this lease, or' iv. File a voluntary petition in bankruptcy or a petition or an answer seeking reorganization under any bankruptcy or insolvency law or any arrangement with creditors, or take advantage of any insolvency law or file an answer admitting the material allegations of a petition filed against Lessee or such guarantor in any bankruptcy, reorganization or insolvency proceedings; or g. The entry of a court order, judgment or decree without the application, approval or consent of Lessee or any guarantor of Lessee's obligations -10- hereunder, as the case may be, approving a petition seeking reorganization of Lessee or such guarantor under any bankruptcy or insolvency or appointing a receiver, trustee or liquidator of Lessee or such guarantor or of all or a substantial part of Lessee's or such guarantor's property or of the premises or of Lessee's interest in this lease, or adjudicating Lessee or such guarantor a bankrupt or insolvent, and such order, judgment or decree shall not be vacated, set aside or staid within thirty (30) days from the date of entry. 21. Remedies If Lessee shall default under this lease as set forth in the preceding section, the Town shall have the following rights and remedies, in addition to all other remedies at law or equity, and none of the following, whether or not exercised by the Town, shall preclude the exercise of any other right or remedy whether set forth in this agreement or existing at law or equity: a. The Town shall have the right to terminate this lease by giving Lessee notice in writing at any time. No act by or on behalf of the Town, such as entry of the premises by the Town to perform maintenance and repairs and efforts to relet the premises, other than giving Lessee written notice of termination, shall terminate this lease. If the Town gives such notice, this lease and the term hereof as well as the right, title and interest of Lessee under this lease shall wholly cease and expire in the same manner and with the same force and effect (except as to Lessee's liability on the date specified in such notice as if such date were the expiration date of the term of this lease without the necessity of reentry or any other act on the Town's part. Upon any termination of this lease, Lessee sh 11 quit and 67 surrender to the Town the premises as set forth in Section 3~° f this lease is terminated, Lessee shall remain liable to the Town for all rent and sums accrued and unpaid hereunder to the date of termination of this lease and the Town shall be entitled to recover from Lessee the worth at the time of the award at the amount by which the unpaid rent and other sums for the balance of the term exceeds the amount of such loss for the same period that Lessee proves could have been reasonably avoided. b. The Town may without demand or notice reenter and take possession of the premises or any part thereof and repossess the same as of the Town's former estate and expel the Lessee and those claiming through or under, and remove the effects of any and all such persons (forcibly, if necessary) without being deemed guilty of any manner of trespass, without prejudice to any remedies for arrears of rent or preceding breach of covenants and without terminating this lease or -11- otherwise relieving Lessee of any obligation hereunder. Should the Town elect to reenter as provided in this Section 26(b), or should the Town take possession pursuant to legal proceedings or pursuant to any notice provided for by law, the Town may from time to time, without terminating this lease, relet the premises or any part thereof for such term or terms and at such rental or rentals and upon such other conditions as the Town may in its absolute discretion deem advisable, with the right to make alterations and repairs to the premises. No such reentry, repossession or reletting of the premises by the Town shall be construed as an election on the Town's part to terminate this lease unless a written notice of termination is given to the Lessee by the Town. No such reentry, repossession or reletting of the premises shall relieve the Lessee of its liability and obligation under this lease, all of which shall survive such reentry, repossession or reletting. Upon the occurrence of such reentry or repossession, the Town shall be entitled to the amount of the monthly rent, and any other sums, which would be payable herE~under if such reentry or repossession had not occurred, less the net proceeds, if any, of any reletting of the premises after deducting all of the Town's expenses in connection with such reletting, including but without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys fees, preparation for such reletting. Lessee shall pay such amount to the Town on the days on which the rent or any other sum is due hereunder would have been payable hereunder i~f possession had not been retaken. In no event shall Lessee be entitled to receive the excess, if any, of net rent collected by the Town as a result of such reletting over the sums payable by the Lessee to the Town hereunder. c. If the Lessee shall default in making any payment required to be made by Lessee (other than payments of rent) or shall default in performing any other obligations of Lessee under this lease, the Town may, but shall not be obligated to, make such payment on behalf of the Lessee or expend such sum of money as may be necessary to perform such obligation. All sums so expended by the Town with interest thereon at the rate provided in Section 21f shall be repaid by the Lessee to the Town on demand. No such payment or expenditure by the Town shall be deemed a waiver of Lessee's default nor shall it affect any other remedy of Lessee by reason of such default. d. If the Lessee shall default in making payment of any rent or other sum due under this lease, Landlord may charge and the Lessee shall pay upon demand interest thereon at the rate provided in Section 21f. -12- e. In any action of unlawful detainer commenced by the Town against the Lessee by reason of any default hereunder, the reasonable rental value of the premises for the period of the unlawful detainer shall be deemed to be the greater of the amount of rent, additional rent and other sums reserved in this lease for such period or the actual rent, additional rent and other sums paid for the comparable period of the preceding year unless the Town and the Lessee shall prove to the contrary by competent evidence. f. Whenever Lessee shall be required to make payment to the Town of any sum with interest, interest on such sum shall be computed from the date such sum is due until paid, at an interest rate equal to the discount rate of the Federal Reserve Bank of New York (as the same may change over time) plus four percent (4%) per annum, except in the case of past due rent. If rent is not received by the Landlord on or before the first of the month, the sum of ten dollars ($10.00) per day shall be charged to the Lessee as additional rent. 22. Signs Lessee shall not install, place, inscribe, paint or otherwise attach and shall not permit any sign, advertisement, notice, marquis or awning on any part of the outside of the premises (including any portion of the premises fronting on any interior corridor or lobby) or on any part of the inside of the premises which is visible from outside the premises or on any part of the building (including the outside walls and the roof) without the prior written consent of the Town in each instance. Any permitted signs shall comply with the requirements of the Town of Vail and the Lessee shall be solely responsible for such compliance. Lessee shall, at its own expense, maintain in first class condition all permitted signs and shall, on the expiration or termination of this lease and at its own expense, remove all such permitted signs and repair any damage caused by such removal. The Town shall have the right to remove all non-permitted signs without notice to Lessee and at the expense of the Lessee. Lessee's obligation under this Section 23 shall survive the expiration or termination of this lease. 23. Indemnity Lessee shall indemnify and hold the Town and the premises free, clear and harmless from any and all demands, claims, causes of action, damages, liabilities, losses, expenses (including, without limitation, attorneys fees) of any kind whatsoever, in connection with, arising out of or by reason of any breech, violation or nonperformance by Lessee or its agents, servants, employees or invitees, or any -13- covenant or provision of this lease or any law, ordinance, rule, regulation or order. 24. No Implied Waiver The failure of the Town to seek redress for violation of or to insist upon the strict performance of, any covenant or condition of this lease shall not prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. If it should be necessary or proper for the Town to bring any action under this lease or to place this lease with any attorney for the enforcement of any of the Town's rights hereunder, then Lessee agrees to pay the Town's reasonable attorney's fees and all expenses and court costs. The receipt by the Town of any rent with knowledge of the breech of any covenant of this lease shall not be deemed a waiver of such breech. No provision of this lease shall be deemed to have been waived by the Town unless such waiver is in writing signed by the Town. No act or thing done by the Town or the Town's agents during the term of this lease shall deemed an acceptance or a surrender of the premises and no agreement to accept such surrender shall be valid unless in writing signed by the Town. No payment by Lessee, or receipt by the Town of a lesser amount than the rent due hereunder shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check or any letter accornpanying any check or payment as rent be deemed in accordance satisfaction, and the Town may accept such check or payment without prejudice to the Town's right to recover the balance of such rent or pursue any other remedy available to the Town. 25. No Representations by the Town; Entire Agreement The Town and the Town's agents have made no representations, warranties, agreements or promises with respect to the premises, the center or the building except such as are expressed herein. The Town nor its agents have made no representations, warranties, agreements or promises with respect to the exact size of the premises. The entire contract of the parties is contained and there are no promises, agreements, representations, warranties, conditions or understandings, either oral or written between them other than as are set forth in this agreement. 26. No Partnership Notwithstanding anything contained in this agreement to the contrary, the Town is not: and shall not in any way or for any purposes become principal or partner of Lessee =rn the conduct of its business, or otherwise, or a joint venturer or member of a joint enterprise with the Lessee. -14- 27. Miscellaneous a. If any provision of this lease shall prove to be illegal, invalid or unenforceable, the remainder of this lease shall not be affected thereby. b. Except as provided herein, no amendment, alteration, modification or addition to this lease shall be valid or binding unless in writing and signed by the party or parties to be bound thereby. c. The caption of each section is added as a matter of convenience only, and to be considered of no effect in the construction of any provisions of this lease. d. The covenants, conditions and agreements contained in this lease shall bind and inure to the benefit of the Town, the Lessee, the respective heirs, distributives, executors, administrators, successors, and subject to the terms of this agreement, their assigns. e. This lease shall be governed and interpreted in accordance with the laws of the State of Colorado. IN WITNESS WHEREOF, the Town and the Lessee have executed this lease as of the date first set forth above. TOWN OF VAIL, a Colorado municipal Corp tion ~ P By: Rondall V. Phillips, Town Manager COLORADO SKI MUSEUM, a Colorado not-for-profit corporation B ' 1 ~~~ , < Y~ v ~` -15- r FRANCHISE AGREEMENT CHANGES Draft dated 6/23/89 pg 1 - P1, A., line 1 - "is hereby subject" changed to read "is hereby granted, subject" pg 1 - P1, C., line 3 - "retain under the" changed to read "retain over, under, or upon the" pg 2 - P1, D., last sentence deleted pg 3 - P3, D., "This fee shall be $ and shall be in addition to the franchise fee or any other payments required hereunder." was added at end of paragraph pg 3 - P4, line 1 - "ten years" changed to "five years" line 2 - second sentence deleted in its entirety pg 4 - P5, line 6 - "franchises, for" changed to read "franchises on the same or similar terms, for'" pg 7 - P9, B. - paragraph is deleted in its entirety pg 8 - P9, B. - old para. C is now B. B., line 3 - "one (1) character" changed to read "one (1) Texscan SG-EBN character" pg 11 - P9, J. - old para. K. is now J. J., 2), line 6 - "between 25,000 and 75,000" changed to read "between 8,000 and 20,000" pg 11 - P9, K. - old para. L. is now K. K., line 1 - "The system" changed to read "Commencing January 1, 1990, the system" pg 12 - P11, A., last line - "to subscribers." changed to read "to subscribers if any national public radio signal reaches the Vail Valley or is available by satellite." pg 13 - P12, A. - para. 1 added in its entirety pg 16 - P17 - new paragraph TRANSFER OF OWNERSHIP OR CONTROL inserted in its entirety pg 17 - P19 - old para. 18 is now 19. D. - new paragraph in its entirety pg 18 - P20 - old para. 19 is now 20. B., 2), line 1 - "agree that the" changed to read "agree that, as of the effective date of this agreement, the" pg 20 - P32 - old para. 31 is now 32. line 1 - "plus correspondence and proposal of Heritage," deleted HERITAGE CABLEVISION and TOWN OF VAIL FRANCHISE AGREEMENT TABLE OF CONTENTS DRAFT 6/23/89 PARAGRAPH TITLE PAGE N0. 1. Grant of Franchise 1 2. Representations and Warranties of Heritage 2 3. Effective Date of Franchise; Effect upon Existing Franchise 2 4. Term 3 5. Franchise Non-Exclusive 3 6. Cable Television Ordinance Incorporated 4 7. Definitions 4 8. Service Area 5 9. System Design and Capacity 7 10. Right of Inspection 11 11. System Services 11 12. Access and Institutional Services 12 13. General Provisions 13 14. Subscriber Rights and Complaints 15 15. Privacy Policies 15 16. Franchise Renewal 15 17. Transfer of Ownership or Control 15 18. Police Powers 17 19. Franchise Fee 17 20. Rates and Charges lg 21. Insurance lg 22. Cooperation lg HERITAGE CABLEVISION and TOWN OF VAIL FRANCHISE AGREEMENT TABLE OF CONTENTS (page 2) PARAGRAPH TITLE PAGE N0. 23. Waiver lg 24. Cumulation of Remedies 19 25. Compliance with Federal, State, and Local Laws 19 26. Notices 20 27. Captions 20 28. Company shall Hold Town Harmless 20 29. Time is of the Essence 20 30. Construction of Agreement 20 31. No-Joint Venture 21 32. Entire Agreement 21 33. Severability 21 HERITAGE CABLEVISION and TOWN OF VAIL FRANCHISE AGREEMENT DRAFT 6/23/89 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 granted, 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 over, under, or upon 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. 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. 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 -2- 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. This fee shall be dollars ($ ), and shall be in addition to the franchise fee or any other payments required hereunder. 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 five (5) years from 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 -3- 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 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 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. -4- 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 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. -5- 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 Heriiage. 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. -6- 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. 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) Texscan SG-EBN 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. 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 one (1) more specially designated access channel. -7- D. 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 to time, or 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. -8- f) Heritage shall not allow its cable or other operations to interfere with the television reception of persons not served by Heritage, nor shall the system interfere with, obstruct or hinder in any manner the operation of the various utilities serving the residents of the Town. 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 unreaso.n.ably interfere with police, fire and other licensed radio communications, noncable television reception, lawful use of citizen band, ham radios and other lawful communications media. 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 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. G. Standby Power Heritage shall provide standby power generating capacity at the cable communications system control center and at major trunk line locations. Heritage -9- shall maint<~in 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 a~t such time as services are provided. J. 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 8,000 and 20,000 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. -10- K. Emergency Override Commencing January 1, 1990, the system shall include an "emergency alert" capability which will permit the Mayor or the Mayor's designated representative in the event of an emergency affecting the public health, safety or welfare to interrupt signals distributed over the system by Heritage and override the audio of all 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 if any national public radio signal reaches the Vail Valley or is available by satellite. -11- 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 Further, Heritage shall contribute to the Town, for the purchase of additional 1oca1 programming production equipment, an amount not to exceed forty thousand dollars ($40,000) per year for the years 1990 and 1991. The equipment to be purchased shall be specified in writing to Heritage by the Town. 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-ofthe-art equipment as necessary or upon reasonable request of the Town based on obsolescence or usability. 8. 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 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 -12- 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 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 -13- 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. 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- 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 law. 17. TRANSFER OF OWNERSHIP OR CONTROL A. The franchise granted herein is a privilege which is personal to Heritage 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 Heritage 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 -15- right or int:e rest 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 Heritage or TCI, Inc. occur, either by acts of Heritage 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 o1= 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 arty other rights of the Town pursuant to this agreement. B. Heritage 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. Heritage shall provide all requested assistance to the Town in connection with 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 Heritage 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); ar~d -16- 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. 18. 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. 19. 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 -17- 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 qu<~rter 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. The Town agrees that two percent (2%) of the annual gross revenues paid to the Town in accordance with this paragraph 19 shall be utilized for local public access purposes. 20. 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 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 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 f'or 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, as of the effective date of this agreement, 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. -18- 21. 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. 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 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 -19- shall indemnify the Town against any loss, liability, or damage occasioned by reason of its viol~-tion 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. 26. NO1"ICES 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. 27. CAF>TIONS 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 al=fect the meaning or interpretation of the agreement. 28. C01~1PANY 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. TIME IS OF THE ESSENCE WhE~never 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 thi s agrE~ement. 30. 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 herE~inafter amended, and the applicable provisions of the Communications Act of 1934 as hereinafter amended, any applicable rules, regulations and orders of the Federal Comrunications Commission and any applicable rules, regulations, legislation or orders o~~F any other public body having jurisdiction over the subject matter hereof. -20- 31. 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 either party act toward third persons or the public in any manner which would indicate any such relationship with the other. 32. ENTIRE AGREEMENT This agreement, all attachments hereto, and the Uail 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. 33. 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, CABLEVISION VI, INC. d/b/a a Colorado municipal corporation HERITAGE CABLEVISION By: By: Rondall U. Phillips, Town Manager Kevin L. Rice, Vice President/Operations -21- ,. o CABLE ORDINANCE CHANGES Draft dated 7/6/89 pg 18 - P23 - TRANSFER OF OWNERSHIP OR CONTROL deleted in its entirety pg 23 - P28 (P27 in new document), c., line 2 - "forty-eight (48)" changed to "twenty-four (24)" line 4 - "twenty percent (20%)" changed to "one-thirtieth (1/30)" line 5 - after "subscriber's request", "for each twenty-four (24) hour period, or portion thereof, that service is interrupted." is added c., para. 2 - deleted in its entirety ~ D TOWN OF VAIL CABLE COMMUNICATIONS ORDINANCE TABLE OF CONTENTS DRAFT 7/6/89 PARAGRAPH TITLE PAGE N0. 1. Cable Communications Ordinance 1 2. Purpose 1 3. Applicability 1 4. Definitions 1 5. Requirement of a Franchise 5 6. General Franchise Characteristics 5 7. Franchise as a Contract 5 8. Conflicts 5 9. Franchisee Subject to Police Power 6 10. Franchise Validity 6 11. Filing of Applications 6 12. Content of Applications 7 13. Consideration of Applications g 14. Acceptance g 15. Franchise Term 10 16. Franchise Fee 10 17. Insurance, Bonds, Indemnity 11 18. Letter of Credit 14 19. Liquidated Damages 14 20. Forfeiture and Termination 15 21. Insolvency 17 22. Removal of Cable Communications System 17 23. Subscriber Fees and Rates lg TOWN OF VAIL CABLE COMMUNICATIONS ORDINANCE TABLE OF CONTENTS (page 2) DRAFT 7/6/89 PARAGRAPH TITLE PAGE NO. 24. Reports lg 25. Records Required 20 26. Filings 20 27. Service Calls and Complaint Procedures 20 28. Service to Subscribers 22 29. Leased Access 22 30. Public Drops 22 31. Lock Out Device 23 32. Protection of Subscriber Privacy 23 33. Construction and Installation Work 23 34. Location of Structures, Lines and Equipment 23 35. Replacement of Paving 24 36. Alteration of Streets by Town 24 37. Trimming Trees 24 38. Temporary Move of Cables 25 39. Refunds and Service Terminations 25 40. Service Area 26 41. Continuity of Service 26 42. Transitional Operation 27 43. Periodic Reevaluation and Renegotiations 27 44. Theft of Services and Tampering 28 45. Renegotiation 28 46. Severability 28 TOWN OF VAIL CABLE COMMUNICATIONS ORDINANCE DRAFT 7/6/89 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 Town. 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 t:he 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. -2- 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. -3- 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, rnaintain, 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 f=ranchisee. 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 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 -6- 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. -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, they 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 a~n application, the Town will consider, among other things, the Applicant's past service record in other communities, the nature of the proposed -g- 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 -9- 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 They 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 considerat-ion of the privilege granted under a franchise for the use of the public ways and the privilege to construct and operate a cable comrriunications 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 t;he 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 ;hall 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 Franchi~;ee 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 and 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 Tate 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 -11- 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 darnage 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 -12- 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 Z} 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 -13- 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, comrnission, 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 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 -14- 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; -15- 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 sha11 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 -16- 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 -17- 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. SUE3SCRIBER 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 <~ 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. 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 t:he 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 an 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. -18- 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. 24. 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 cost allocation methods, and basis for interest expense. A summary shal'1 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, -19- functions or• duties of the Town in connection with this ordinance or the franchise agreement. 25. 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 Vail, Colorado, within a reasonable time after the request. 26. FILINGS The Franchisee shall mail or deliver a copy of all filings it makes with State and F~aderal agencies to the Town Clerk. Said copy shall be mailed or delivered on the filing date. 27. 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) -20- 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 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. -21- 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 sh<~11 be the sole obligation of the Franchisee. c. In the event that total service to any subscriber is interrupted for twenty-four (24) or more consecutive hours, except in circumstances for which advance consent to the interruption is obtained from the Town, the Franchisee shall provide a orie-thirtieth (1/30) pro rata rebate of the monthly fees to affected subscribers upon the subscriber's request for each twenty-four (24) hour period, or portion thei°eof, that service is interrupted. 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. 28. SERVICE TO SUBSCRIBERS A f=ranchisee 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 (:L) 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. 29. LEASED ACCESS The Franchisee shall make channels available for leased or commercial use as specified in the franchise agreement consistent with Federal law. 30. 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, _22_ public school, police station, public library, municipal building and other such buildings used for public purposes. 31. 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. 32. PROTECTION OF SUBSCRIBER PRIVACY Franchisee .shall protect the Town's privacy consistent with the provision of 47 U.S.C. 631, as amended. 33. 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. 34. 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. -23- 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 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. 35. 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. 36. 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. 37. 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 -24- 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. 38. 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. 39. 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 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: -25- 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. 40. SERVICE AREA Thc~ 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. 41. 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: -26- 1) Revocation of the franchise. 2) Nonrenewal of the franchise. 3) Transfer of the cable system to the Town or .another entity. 42. 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. 43. 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 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. -27- 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. 44. 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 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 frorri 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 ($500) for each offense. 45. RENEGOTIATION If any court of competent ,jurisdiction, the FCC or any state regulatory body rules, decisions or other action determines prior to the commencement of system construction, that any material provision of this Ordinance or any franchise granted pursuant thereto, is invalid or unenforceable, then in such event, the Town shall retain the right to renegotiate any franchise entered into prior to any such rule, decision or other action. For the purpose of this section, "Commencement of System Constructior-" shall mean the first day that physical construction, including but not limited to, the placing of cable on poles or underground, actually begins. 46. SEtIERABILITY If any provision, section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional, void or invalid or for any reason uneni~orceable, the validity of the remaining portions of this Ordinance shall not be affected thereby, it being the intent of the Town Council in adopting and approving this Ordinance then no portion hereof or provision or regulation contained _28_ herein shall become inoperative or fail by reason of any unconstitutionality or invalidity of any other portion, provision or regulation and all provisions of this Ordinance are declared to be severable. INTRODUCED, READ AND APPROVED ON FIRST READING THIS day of 1989, and a public hearing shall be held on this Ordinance on the day of 1989 at 7:30 p.m. in the Council Chambers of the Vail Municipal Building, Vail, Colorado. Ordered published in full this day of . 1989. Kent R. Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk INTRODUCED, READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this day of 1989. Kent R. Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk -29- Exhibit A ----~--Serving°v'ail, Avon, Minturn, Eagle-Vail, EdZ~ards, Singleeree, I-Iomestead, Lake Creek ~ flrrou~head. O$a~ugraefl Servace IProgaasaure~ing 2 KWGN Denver, Channel 2, Independene Station 3 CBN Cable Broadcast Network will entertain, inform and inspire the whole family. 3 TMC The Movie Channel (in Beavee Creek only). 4 KCNC Denvee, NBC Affiliate.`' i ' 5 WTBS Atlanea Superseaeion, WTBS, is round ehe clock action for the whole family. 6 KRMA Denver, Public Broadcasting Station~'~ 7 KMGH Denvee, CBS Affiliate'" 8 WGN Chicago Superstaeion, WGN, brings the excitement of the "Windy City" nighe to your home. 9 KIJSA Denver, ABC Affiliate~* 10 ESPN The total sports neework. 11 CNN Cable News Network gives you news when it happens from where it happens. i fl2 LOCAL The visitor's guide to ehe Vail Valley, 6:00 to 10:00 a.m. and 3:00 to 8:00 p.m. in season only (hours subjece eo change). 12 CVN Cable Value Network, home shopping (between visitor's guide). 13 K-CITE Local weather, news and information with K-Cite as background music. 14 LISA L)SA presents sports, women's & children's features plus drama, films and documenearies. 15 MTV 24 hour rock videos plus exclusive interviews, coneests & concert information. I6 ~ NICK Nickelodeon has programming for children designed to be fun and educational 17 FNN . Financial News Network brings you straight talk on national and international money mateers from financial experts (M-F daytime). 17 AMC .American Movie Classics features Hollywood's best films and brigheese sears with a differene theme every nighe (evenings and weekends). 18 CNN Headline News gives the latese news in a flash with concise 30-minute se menes 19 DISC g . The Discovery Channel expands your horizons with programs devoted to science, eechnology, nature and human adventure. 20 LIFETIME Especially foe women! Exercise, nutrition plus news and tips to help organize youe day. 21 KDVR Arts and eneereainmene features dance, music, theaere, opera, art and literature. 22 ARTS Denvee, Channel 31, Fox Independent a 23 C-SPAN II: Live LJ.S. Senaee coverage (ehis will share wieh public access). X25 ~ HBO . Home Box Office brings you recene blockbuster hits from Hollywood plus exclusive eneereainment and superstar concerts, spores from Wimbledon Bennis eo championship boxing, and children's shows like Fraggle Rock rnt ~* X26 CINEMAX . Over 50 movies a month featuring hits from the pase and present. family movies ae conveniene times, adult orieneed movies later in the evening, plus a variety of concerts and comedy specials.~* ~2? DISNEY . The Disney Channel provides family entertainmene from ehe company whose name stands for quality. Programming includes ~ Disney movies , fantasy animation, educational series and new and original programming. X28 o SHOWTIME Showeime makes excitemene with ae least ten exclusive features including recene and classic movies, beoadway hits, family & adult features, original comedies, dramas and much more. X29 TMC The Movie Channel features all movies, all ehe time, with a different movie every nighe. Uncue, unineerrupted with a film for every tasee. 30 C-SPAN I ''See live, gavel-to-gavel coverage of the LI.S. House of Representatives. 32 KREG Glenwood Springs Premium Seevices, not included wieh basic service. ~~These staeions are in stereo for people with stereo T.V.'s. 0 Exhibit B ECIU T F'MENT I r(VEIUTORY AUGUST 1908 F'r-z~~-~r~ci by Eir-i ~n F~i~i11 S'fl..1DT0 ....... ..... ..._ ' 1 ... .... .... .... ,. . • ... .. • :. , '.. .....: ~. a 18?: I rl : G, ; ..., ,,,. ., ,.... . -. ,_ L.i •..I :.. i:i:: ::. c:.: t' !r... .i. (.~ ... <:aiil!.>t,i'i I I'":1. (:!C)ia t . ' . ...1.:.:• ... .. • ...• ... ........ ... ~... .. 1 ..:.1 _.I ~ .: 1 I r.: ..., u _ .... ~... (.. C..., ~.. L.I. ~ .... .... ... .... .: ~: . .... ' cor~rfr-;ai.. F,~~M i::' (: y ~...i ~j `-i!'".l:) ,:~ i:~1(1(„i 1.::} ('•~17. '~". ('_ L... ~:: I'` • t.... ,.... ;, .. ._ ._. ~. .. ,....., ,I, : 'i!(i ~111t_.t..,(11 l..:li•::11 r_.C•,;,,,I•" I_:,_..li(~' .. .: .. _ t' .. ~.,1 i..: 1 1 .~ I . i. ! I' ; ~' t ,:_ 1.. I'l •-:+. I' cd C. t:. +~'•' C' I.:1(~ i`i t"? r" £it'L C:i r" .~:`1 li_..i ~i r'L C.,(.~.'~.,. r'; (7 ~;:,:..I :i. ki::: l':.::r I.: .::f'L.:!'1.... li!c? L. :I. i:l(_ A:'~1.'~k_' (...,t_,I:-I`"'-'r:"!: (:r r. ... ( ~L ..(_1' `a ?1::;:j~; ` _;. i:•i'_a i,:! I:.. i:l j. ~~: :I. f~l l::~ `'11-.'ft .., .... .. .._ I .. '_'~f:il'i';r' I°(1'~1 ..t^i•i.l r_~C1 7. ~._ 1...(..:L'i't" I"' C:i.l. j. ;:::'r.. t.~ te1l., l ;.i:i•t )1~1 .I. ~.-1 i1 ~:'. (..I :1. ~: '•%L.: ~'\ 1 1(•j .. .... ; I NI .1. '1 1~• ~• .. i•ii'I'--i-i~_:,J 1'+.(:~ (. l:C'!i'1 i::ri_!.. a t?;~P- .:! i; ~; r•u.! •..: ~ . i::I t: a C.i 1'"' c5'{: C: I 1 I'' %t L..I C:;' 1 l y a. k '~,' +~3 !=:i !~ '%: ~; r`, i• . 11....: P••: t„1. (. ~ 1 (.:1 I` +.: ~ 1.. (::: f'1 i ~' ~:[:1' 14r:i .I. 1 i_S .~ :I. ~.` c. LLi ie'i: °_S C:)'' .:•, ,: _. i i l) %.... I^ l ~_I. +_.I 1 (::1 i" ca (.. l.. ~1 1.., (::1 r' (.:i •.c: ,, ~ • , _• .. :. .. L:;:t~.. ' ' r ,: i':'i'' c::' ` L~ .,: 1''I r; ~ (1t ~ ;, ) l.'i:j.l. C I~"' :il'~::i .r::,t > 1.::i+:'j;`14d '(, (^~!. (J 1~'C:;.L C]:_ I~IiaL..:. ~~:i:ji'_ . I.a, t.. c+t" I';1 r . ,.,(%~r lU:.l V i:~ •t• i::ir" IYi !'I(::U'1 a '~ iJI'.. ila~:.«!.1..x'.1. vLah.:l..(::il"~~L:l)~.il.:' tv!~J`°iCi~~ . I :iiU: I~c iii: EtaU I f='Iyl[~I~IT :[ I•JVEh~I-f 7F;Y ~IUuUST 1988 I;FMt~'I"E [~UU T F't'IL=1`1T ., ... - - ... ..., _ ,. ,. .. , .... .., .. _ .., ~:..?.I"1::i. f::;:il'": 1. i. LY,::,!..!i_!(_1 '..ia. i:aa.';.:::a;. t.....iit~::iil":-! .., . . , . , .L. .. ... : .., .. , . .. ,::. ..~:.. 1..1... r•1I::1:~1..:.,•r.. r{._. f:....:,~,.1" L.!1",:i'?'. ..., ...._ _. .. , :..., .. ... ,... I'-l t_1 L7 'I' 0 :i "I~E~i"li:: P'.--:'~(i ~1?.!c:i:it::, i~i:i;.::;;1'° ~. L't'?1'1''71"i l.':.:i_...:_l..'i._ ( 1::.r.'i. ... "f 1. i" I"'I ' C:i .iv":. is ......, .. (.'... .. 1. ~ ...,1 I . •:!. I' 1 % 1 1 ..._ ...! t. ' I;:i ....: I:. +_: r ' (:}~ C:i I •i 4r:•: C.:: is:I. `,, L::, i:.. .1. I I::. (°i ~_: L .; :'` I' ~... ~?. L; ': i C'.7't: I: i:. I1 i::: t:: h; .. .. ' .., . _ l..".: is (•~. `,1,.. ,-, ... ...... ~::. :'51..!fl ~ Ga..: 'I"•.:~1_! _.-;.y~•::, 1. 1 Ic11;. I"I .I, a,"I:..~"-~I•.lrli'11'il,;.; ,. .... " k'.)i.Jl~l.y is I I ,..!..1 -1 ..~ir,?~; c:! 1..1. +:t'i' I~`I]. !_.~ l...L!1IlJL..It:i"•5 .: ;..,1..)r. j/ :::I„•I 1 ,.J!_'I ,.d~~ L...~a'~lc:'.J. a. ir9" 1'1:1.:_1'"(,.il]i Il:a3"'1l.':t'S ,.., .. . '. t:: .l. !•i:r +':: 't'::'"i"1 '.'C:):I. C: ri' 1.}•.: ~:.., I-1 1`I :I 1:::: °:: •i;~il 1(::11'1 iir:''=> ... . ..,kcl II li,~::., ...r:::P `;~._ k::,L.f '•:..1 :...%. [. :L (':Jfl.:}. !. t"I :L l:l"'IJ1::1111~1'11: _..• ... I •....,.:.Llrlt ~ •::' ~l ~F;,. il'"i'',.:~l..l r°'(:]6'r'r:~i" l.li ; .i 'i'. 'A: ....~ _.. .., •,' ~...,1-:1._1:_I'~t.a`/(.Ji (::'r.~ _.1._ t~.l _Iii1E] v Di sr_r(.:~r~ar7ci~~s with Inventory o_f Apri1 1~,~87. i i t ~• '=~ii::iL..l,; `:•(il"i(~1 ` I ': ,,(;-•:• ,~,i= •"_::: ~=~:::J L.li;'1•..:i';:::?.i: +_ I , .. .. r,'r (_+ rt ~::. C] L'] is C:: I ..._ L!. i:] _ 1 °I 1-;' :;;, i.: i:~ i °, t.i t:10-::•a r' ~. .::. J .._. _. _ I'i a. (.: i"' l.J i::i i": x"11"1 L' F' .I. (:~ r.J r" '::1'I:.a i'i (::I : L~'~..: ~. '!.:::: .: (:; L'.? i..i I;.. i:_ l;; i yy•:::;'i:a y f.J ,".,'L :'1 C:I ;, i l .... I •I 1 i': I'" (:'i!J I"1(.:i i'1(' 11 i•::i !'~: ':.:;'t: i:? L'1 r'i ! l:S {::' .i .L ir!'•i ~::? CI L'i i.3I`" I"' i:a 1,^: L:'r7l:a ,, i:; 1.:x:1. I"1 C:1 ..I. J .t ~. _. , i `i I ''.... •`.' .I. 1.1 !..' l:.l 1 ' :_i. ?.. ~_ I...I !..~• L..1''.. 1._I .;:' :I I :L ::.i •.::i .I. 1 I tyl y ~.. r....•v' .t. 1 l I '~.. !.a •I 1.a 1_ .'! ~..':'~' u y , .:.,...,.. ._. .. ;:::1..1.. (':........._l._ r..71~., ,__ __ w1..,.7 (°l . i:1 c:%' l'n~/r:.i.lc:(:]r` +; i ~ 1. -• 1:11' ~ I !: i i:I :~I'l°. l: t?: i•.. y. L .i ~~:1 .y (::; i'1 r:) (-.; ~ - 4nl (:] I" I:: !•:? i.i `._'i.1...1 r.. ~~! .I r°i C:; I_('t: „ ' `` ' 1. I I"1 ~ j' / :Fi! i:.: (':.:1. ~/ is ~~ ]. C1 C? i:.i _7 ;:]. (':: I•~: 5e• 4.1 E? I'" F? !. (': '<» l..( i. I 1 ' / • r ._.... _., ] L.!. '" + : ' ` <.:' .:a 1 I 11 C n ~ ' r I X.,' ( .....::, ,a I l l.:• l_]• i •~ i , J ?rt 1 (:'~ _ (:] ~ l :"i {:' F` r ~ y _ l: .L \ _ r~n.li:: a. ~.] :J :::?(' I<:':, 6df?P'r_' ~,C;1',L..l<!.1.1. 1. ~/ p1!r-c:h,-1 ~;~~rl y rioi: • ,.. `ti• r`.l~.~ti'. ..I:::..J .. .~ `I i~l(_(~:..~ 1. I,'l ,~.~ ~'ia(::: r'. ':?; :~ Y~CGKS CURD OENT ~ 5-2~-~9 ~ 3~O1PM ~ ?~389274~U-+15L1UJuJ~Gi16oL.'z::~'.".~~~ . Exhibit C S78TEM STI~ND.~RD3 ANI3 SP~CIPICA'1'IOAIS The following system Standards and Specifications paraphras® Section 76 subpart K o! the Rules of the Federal Communic$tior.s Commiseiono As sucha it is the int®nt of the partieA to this ~'ranchiee Agr®®ment to interpret the following in conformance with the enforceanent policies of the F'CC on the date of this Franchise Agr®®mento System design specifications Aa Th® system will b® dceigned and electronic eq~aipr~r~nt s®lectedo The performance ®f th®g® will be equal to or batter ~:~ifr. the followings 1 o Visual carrier frequency 1 e 25 M~i2 + Z~ lcxz above lower boundary of chann®~,a if no converter ±~ use4., and + X30 kH~ if converter ig usedo ~o Aural cagier frequency,4o5 MHz + 1 kHx above visual carri®r fr®qu®ncyo 3o Vi®ual signal leveb across~a t®rminating impadanc:a matching the int®rnal imp®dance of the cablr~ syr~ e~:a ae viewed from th® subscribez terminals shall not be less than the following appgopriate valued %nt®rnal Impedance 7a ohm® Visual signal Let-el 1 millivolt X00 ohms a millivolts ~a visual signal level on each channel shall not g,ar~ . moxe than $~ de®ibels within any a4 hour P®riaci ~;a:ci shall be maintained withins .. Y~DG&S CORP DEFT ~ 5-22-89 ~ 3~02PM ~ "^38927400-+15220~85~ui,2~4?5:',;;~4 '. 8e 3 d®cibels ®f th® visual signal level of asy visual carrisr within 6 MHO nominmi frgclue:~ca separatione® and ~o la d®cibels of the visuffi1 signal level on aa~r oth®~; chann®1® and •co ~ maximum level such that signal degradatio:~ due t® ovcrload in the subsor~,ber,s receiver d®es not ®couro, 30 aural signal rms voltage shall be maintained between 13 and l~ decibels below assooiated viEU~d. signal levels 6o Visual signal level peak variation caused by undesired 1®w fxequ®ncy disturbances (hum or repetitive transient)~gene~'atecl within the system, or by inadequat® 1®w frequency response, $ha11 not exceed 5 percent of the visual signal 1®vele ~o ~ channel frequency respans® shall be within a range ®~ ¢~ d®cibcls for all frequencie® within 0075 rlH: ~ , and +5 N%Fi~ ;.®f visual fr®qu®ncy abov® lower boundary frequency of cable channelo.• ~o ~'®r grade ~ signalse rati® of visual signal level to syatea~ nois® and of visual signal levels to any and®sir®d c®®channel television signal operatinc~ an proper offset assignment shall not b® leas than 35 decibelso 'his requir®ment is applicable to each signab which ~s delivered by a cabl® t$levisioai a ~y~tem t® subscribers within the predicted Grade F3 ~DG&S CORP DEPT ~o 5°22-69 ~ 3~03Pf~ "^38827460--152iG03500C254~92'.'i~a t Contour for that signalo or each signal which is first picked up within its predicted Grade ~ Contours Ratio ®f visual Signal level to the rms•amp~.it~de ®f any coherent disturbances shall not be lest t.•f:: ~~ dccibelso 10, ~erroinal isolation provided ®ach ®ubscriber sh•~1e not be less than 1~ d~cibela~ bug in any event shall be ®uffioient to prevent reflections caubod by span cir®uited ®r short circuited eubscribeg $exroinals fr®ro producing visible picture 3mpai`me~;t at any oth®r subscriber terminals 11, system gadiation from a cable television system shall be limited as followsg Radiation %~3mit• Distance ~°recguenci®s (roicr®volt$/roster) (feet) tip to ~ including 5~ P3~i~ 15 g00 From 54p~16 ~•I~ a0 10 Cv®r a16 ~~ 15 100 lea 530 NiFi~ Return (upstream)o ;° ~o wbth th® total system in operation anr~RF'x ingress t®st will be made t® ®nsura that th~:cerriem to noise signals (C/N) will be better than 30 db azd cgoss madulation ®f les® than ~30dbo Eo ill construction practices and procedures will comply with nationalp state, and local codes a*.4i ° ®peratinq standardso ~"~DG&S GORP DEPT ~ 5°22°89 ~ 3~03PM ~ G38927400~1522008500065b7?L~j';;P Co Agl highway/gailr®ad cr®ssings clearance will comply with the national, state, and loyal code•3 and operating standards® ~o System eiesigno strand, and ®lectronic maps w? wl. bc~ in ace®rdanc® with the National cable Telev`sio:~ Ass®ciati®n Standard 003m066s se reviseda Ea ®perating temperature range of th® system will b~_ between ~40 to +14® ~', ~o '~®chnical standards will be in accordance with; b:•.: n®t limit®d t®, th® ,following: 10 ~'ederai communications Rules Part 76 as amended, Cable television service and spacificallyg subpart K Technical sta7dardso ~o Paragraph 76a60~ ~®rfogmanc® Teete Paragraph 76m6os~Technical Standards paragraph 76©609 Measurements paragraph 760610 Operation in th® frequeTcy bands 108®136 and 225®400 MFi~ paragraph 760611 Operation near certa!n aerAnautical and marina emergency frequenci~~ Paragraph 7Sa613 Interference from a cable sy®tem3 provided, however, that there sh~vla be continual monitoring for interference from a cable television system. Any inter° fer®nce or suspected interference will be investigated and corrected immediat®ly upo:~ ~GG&S CORP DEPT ~ 5°22-69 ~ 3~04PM ~ ""~89274G0-~15220u85~~0u25~.`~~~c"~;':~r t discovery aaacl n®tificationo ~oaW~hentation o~ any.ir~terference and corrective action taken will become part of the record anainta~.YE for the FCCo Paragraphs 760617 Responsibility for raaeiveb•~ generated interference Paragraph 78 Cable Television Relay ServicK MEMORANDUM T0: Pat Dodson ~' ~/ FROM: Ron Phillips,~1 DATE: June 27, 1989 SUBJECT: Vail Town Council/UMRD Committee Meeting ~ i . '! 1 i . _. The following is a recap of what I understand the outcome of the Committee meeting to' be regarding UMRD capital improvements and other issues. 1. The Town is to be responsible for paving the Ford Park parking lot when it is appropriate. This lot serves the tennis courts, softball fields, amphitheater, and alpine garden. The Town will also be responsible for landscaping the parking lot, but not the tennis courts. The UMRD plans for building two additional tennis courts and a tennis pro shop building may be carried out in late 1989 or early 1990. 2. The ice arena heat exchanger .needs to be replaced now according to your assessment. The Town staff will discuss this with you further and examine what can be done under the lease agreement and within our budget. We will address it and resolve it before the end of July. 3. You stated that the Rink Tex floor needs to be replaced soon. I would appreciate it if you could give us the background i"nformation on this such as the recommended life of the floor, what kinds of problems you are experiencing, at what point do maintenance costs become prohibitive, etc. Also, can replacement be approached in phases over a number of years? 4. The Committee discussed the possibility of the Town waiving building permit fees for UMRD. We will examine what has been done with other special districts and discuss this with you further. .~ 5. The UMRD members on the Committee agreed to present to the full VMRD Board the request that restricted golf passes be provided to the Town for employees and board members at no cost. Accounting for use of the passes will be done as in the past. The Town passes would not be upgradable to unrestricted passes. 6. You stated that some levels of supervisors in the Public Works Department have not been as cooperative as they should be. I am addressing this issue with,=-::. Stan Berryman. " I think it was a good beginning meeting. so we should begin thinking about a date summer or early fall. The members discussed meeting quarterly, for the next meeting sometime in.late RUP/bsc cc: Town Council f.. r ~- iowo oTua~ 75 sough fron4age road ball, Colorado 81857 (303) 479-29 58 d®par4men4 04 public works/transporta4ion MEMORANDUM TO: Peter Patten FROM: Stan Berryman~~ DATE: July 4, 1989 RE: Proposed Lionshead Siglu TM r;. ~. ~~ ;~~, '~ ~~ Our department has reviewed the proposed plan for construction of a Siglu in the middle of the Lionshead Mall. We offer the following comments: 1. The Siglu will have a significant detrimental effect on snow removal in the mall. We currently push snow across the proposed location from outlying areas in the mall and store snow in the Fountain area for later haul-out. The Siglu would eliminate this access area requiring more snow to be hauled from the outlying areas of the mall. 2. The constricted maneuvering space and loss of area will result in increased costs for snow removal. We estimate an increase of approximately $10,000 - $12,000 in snow removal costs during an average winter. We would recommend locating the Siglu at a different location which would have a less negative impact on snow removal. SB/slh cc: Pete Burnett .~ Sawn of uai 42 wres4 meadouu driee aail, Colorado 81657 (303)476-2200 BiE P IGicAi1D Ui$ /~ •1 c. fdre de~r4Qneret TO . Peter Patten, Director of~ommunity Development FROi~i Dick Duran, 'r'i1•e Chiei Michael McGee, i .ire iviarshal /~ D:-~T June 2F,, 1 939 L~ ZE Siglu Proposal As per our discussion at the Inter-Departmental meeting this rnorn~.ng, we 'nave outlined the Fire Department's concerns with the proposed location in the Lionshead i•Iall. 1 , ~i'~oc•~n of Vail T~,unicipal Code, Section 't 5.02, Article 'i 0, Section 10.2G7, (aj requires fire apparatus roads rye provided and maintaaneda The Lionshead P•iall re-development as directed by Steve Patterson, . allo~yea for fire department vehicular access. The access cra5 clesigncd using minimum design criteria. Any reduction below the code required minimums would tenu to place the Town in a potentially liable position. 20 Section 10.2G7.(ej of the Uniform Fire Code as adopted by the Town, dictatf~s the "minimum unobstructed ~vic~th of a lire apparatus access road shall be not less than 2G feet." The Siglu proposal as drawn reduces lire apparatus access road wict.~l below the minimum acceptable width. 3e Alternative routes have not been provided in the proposed site plan. In addition to reducing the mail access route on %.rie South side to 17 feet from curb to curb, it virtually eliminates alternatives o:, the north side as well by restricting thc- width i~etween the flag poles and the Siglu structure to 14 feet. Driving between the flag poles and the Lifthouse Lodge is prohibited by the lack of adequate turning radius and the reduced access width between the flag poles and the stems to the Idorth day lot. As you may recall, t~lis issue was brought up when the location for the flag poles was selected> 'vVhen the steps were rebuilt, as part of the Lionshead fountain project, the 17 feet between the flag poles and ti.ie steps was below the allowai~le minimum and was in fact pointed out to i"ir. Patterson, It was determined that a 20 foot separation was not necessary because Siglu Proposal rage 2 "nothing will ever be built in the access path between the f lag poles used to facilitai:e t11e ladder truck Lodge. It was agreed that nothing adversf=_ly a~i.ect the area rie~ded to hoses .and effectively fight a fire. ;riddle of the r~lall" and the and the steps would only be getting to the cif thouse would be perrnitL-ed that would stage equipment, lay fire 4. The buildings in the immediate proximity to the site of the proposed Siglu are generally not equipped with fire sprinkler_ systems. The Gondola building does have a sprinkler system but it does not meet current design .standards for fire detection systems, smoke c~letection, smoke control nor is it even equipped with a single fire evacuation signaling device. The Liftirouse Lodge, the Landr~cark Building, anc~ the Sunbird Lodge are not equipped with adequate lire sprinkler systems. Fire ciepartrnent emergency access and a reasonable amount of space within which we could set up and ini:iai~e operations would be necessary in the event a fire were to occur .in any of- the several buildings adversely affected by the restricted access. 5., The r~et width of our roads and pathways during the wi~zter months i.as been shown on numerous occasions, co be less than tl~iat shown on paper. Snow and ice accumulations tend to reduce the effective width. Ulirere there is less than adequate width t:o begin with, accessability for snow removal becomes increasinuiy more imporirant. Snow removz_1 within the i~~lall is critical and should not in arry way be adversely affected. CGP1 CL JS I OIv Tl~ie proposed location violates several sections of the Municipal Code, ir_ specific, Article 10 of the r^ire Code. Fire De~oartment vehicular access and adequate operation widt'rr are cri.ticai and essential.. Alternatives are not apparently readily available. Loving the Sigiu a few feet in any direction will tE~nd to reduce access points to below the minimums allowed by law. tae are not opposed to the concept of the Siglu, but we feel the locration currently being proposed is not in the best interest of those persons who sleep iri, work in or o~,m the buildings in the Lionsheaci Mall and that any reduction iri the fire apparatus access width roses and unreasonable risk to the general health, welfare and safety. Planning and Environmental Commission July 10, 1989 12:00 PM Site Visits 1:00 PM Public Meeting/Work Session on Vail Village Master Plan 3000 PM Public Hearing 1. A request for a front setback variance for Lot 6, Vail Village Tenth Filing. Applicant: Michael Katz 2. A request for a floodplain alteration on Lot 7, Block 3, Vail Village Eleventh Filing. Applicant: Junge Reich Magee 3. Work session on Art in Public Places VAIL TOWN COUNCIL REGULAR MEETING TUESDAY, JULY 11, 1989 7:30 p.m. AGENDA 1. Update by the Colorado Department of Health on the Eagle Mine Clean-Up 2. Consent Agenda A. Approval of Minutes of June 6 and 20, 1989 Meetings B. Ordinance No. 14, Series of 1989, second reading, an ordinance making supplemental appropriations from the Town of Vail general fund, capital projects fund, real estate transfer tax fund, and the Vail marketing fund of the 1989 budget and financial plan for the Town of Vail, Colorado; and authorizing the expenditures of said appropriations as set forth herein. C. Ordinance No. 16, Series of 1989, second reading, an ordinance vacating all right, title and interest of the Town of Vail in and to the roadway more particularly set forth and described in Exhibit A attached hereto and made a part hereof; and setting forth details in regard thereto. 3. Ordinance No. 15, Series of 1989, first reading, an ordinance amending Ordinance 26, Series of 1987, to allow employee units in Lionsridge Subdivision Filing No. 4. 4. Appeal of the Design Review Board decision granting final approval of the Cascade Crossing project 5. Appeal of the Design Review Board decision granting final approval of the Ledges project 6. Presentation of the 1988 Audited Financial Report 7. Discussion of TV Translator vote results and direction to Staff as to any future action CITIZEN PARTICIPATION 8. Adjournment