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TC Minutes 08-28-19796 0 MINUTES OF THE REGULAR MEETING OF THE TOWN OF AVON, COUNCILMEMBERS HELD AUGUST 28, 1979 - 8:00 P.M. The Regular Meeting of the Town Councilmembers of the Town of Avon, Colorado was held in the Town Office, second floor, Benchmark Shopping Center, Avon, Colorado. The meeting was called to order by Mayor Alpi at 8:00 P.M. A roll call was taken with all Councilmembers in attendance with the exception of A.J. Wells. Also present were Darrell and Jerrell Davis of Rocky Mountain Cable TV, Inc., Lydia Fightmaster of Battle Mountain Recrea- tion League, Bill Pierce of Avon Metropolitan District, Town Attorney John Blish, as well as members of the press and public. The minutes of August 14, 1979 were presented to the Council. In page two, paragraph 1, Allan Nottingham stated that the words "Allan Notting- ham seconded the motion." should correctly read "William Doyle seconded the motion." and the words "William Doyle abstained'.' should correctly read "Allan Nottingham abstained." In page two, paragraph two Town Attorney John Blish recommended the wording "ask for the annexation" be changed to "ask concerning the annexation". He also stated that in page one, paragraph three the words "August 13, 1979 until August 24, 1979" should correctly read "August 13, 1979 until August 27, 1979". Carol Richards moved that the minutes be approved as corrected. William Doyle seconded the motion and it was unanimously carried. Bi-monthly financial reports were next reviewed by the Council. After discussion, Steven Erickson moved approval of the accounts pay- able, Richard Casserley seconded the motion and it was carried unani- mously. The Parks and Recreation account was discussed. Steven Erickson moved approval of the accounts payable, Carol Richards seconded the motion and it was unanimously carried. Selection of a financial advisor for bonding was discussed. In a secret ballot, the Council voted to appoint Boettcher and Co. as financial consultant. The second reading of Ordinance 79 - 16 (AN ORDINANCE GRANTING A FRANCHISE TO ROCKY MOUNTAIN CABLE TV, INC., ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE TOWN OF AVON, COLORADO, AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE AND PROVIDING FOR TOWN APPROVAL AND REGULATION AND SETTING OUT ADDITIONAL DETAILS IN RELATION THERETO) was held. In Section Two, Subparagraph F John Blish recommended the addition of the sentence "Gross subscriber revenues shall include only those re- venues derived from service to subscribers located within the Town of Avon." The Council discussed the following changes: Section 11 - "first regular meeting held during the month of April" rather than "first regular meeting held during the month of June" and Section 12 - the Rate Schedule was inserted. On page 18, the word "receivng" should correctly read "receiving" and the word "compalint" should correctly read "complaint." Richard Casserley moved the Ordinance with the suggested changes and noted corrections be approved. Carol Richards seconded the motion and a roll call vote was taken with all Councilmembers voting yes. A copy of Ordinance No. 79 - 16 as corrected is attached to these minutes. The second reading of Ordinance 79 - 19 (AN ORDINANCE AMENDING ORDINANCE NO. 2, SERIES OF 1978, BY CHANGING A REFERENCE TO A CERTAIN SECTION OF THE MODEL TRAFFIC CODE FROM AN INCORRECT TO A CORRECT REFERENCE) Was held. After discussion, Steven Erickson moved approval of the Ordinance, William Doyle seconded the motion and a roll call vote was taken with all Councilmembers voting yes. A copy of Ordinance No. 79 - 19 is attached to these minutes. -1- The first reading of Ordinance 79 - 20 (AN ORDINANCE AMENDING ORDINANCE NUMBER 17, SERIES OF 1979, BY THE REPEAL AND REENACTMENT OF SECTION H, SUBSECTION 6, THE ONLY CHANGE IN WHICH IS THE SUBSTITUTION OF THE WORDS "AVON POLICE CHIEF" FOR THE WORDS "TOWN MARSHAL", WHERE THOSE WORDS APPEAR IN THE FIFTH LINE OF THE TEXT IN SUBSECTION 8.24.030 OF THE MATERIAL ADOPTED, THE VAIL MUNICIPAL CODE) was presented to the Council. John Blish recommended the following changes: Title - "VAIL MUNICIPAL CODE" rather than "JAIL MUNICIPAL CODE"; Section 1 - "New text" rather than "new text", "repealled" rather than "repealed", "6. Title 8," rather than "6, Title 8," and "provided" rather than "Provided". He also stated the last paragraph, page one will be changed to a cor- rect statement. William Doyle moved approval of the Ordinance with noted corrections. Carol Richards seconded the motion and a roll call vote was taken with all Councilmembers voting yes. A copy of the corrected Ordinance No. 79 - 20 is attached to these minutes. Lydia Fightmaster of the Battle Mountain Recreation League approached the Council to request financial support and administrative assistance from the Town of Avon. Mayor Alpi replied that the Town does not own the park and that an answer to Lydia's request can not be given until the Town owns the park. The Council suggested that assistance from Eagle County and/or all of the communities in this area would be more appropriate. The park referred to is Nottingham Park. William Pierce, architect, of the Avon Metropolitan District approached the Council to review the plans for an addition to the fire station. It is requested that landscaping requirements be suspended at this time until it is determined whether the planned municipal building will be a factor in the landscaping plans. Carol Richards moved that the Council authorize the Design Review Board to approve the fire station without landscaping until the middle of March, 1980 at which time either Avon Metropolitan District or a combination of Avon Metro- politan District and the Town of Avon will submit a landscape plan for that area. Allan Nottingham seconded the motion and it was unani- mously carried. Carol Richards reported on the NWCOG management agency agreement for wastewater treatment. The governor designated Eagle County and the municipalities of Avon, Basalt, Eagle, Gypsum, Minturn, Redcliff and Vail as management agencies for wastewater treatment in Eagle County. After discussion, the Council gave Carol Richards the authority to continue to vote for management to remain with the municipalities rather than include the sanitation districts. On September 10, 1979 another meeting will be held with the county commissioners and muni- cipalities. The NWCOG A-95 Review (Substate District Economic Development Policy Formulation and Implementation) was discussed and the Mayor was auth- orized to sign the A-95 approved and stating the reason for approval was to accept the Federal money rather than let another part of the country get it. Town Attorney John Blish reported the following: the August 16th CETA meeting in Frisco which he attended was informational; Elmer Claycomb of Claycomb Engineering Associates is now supervising the Town road project; and his conversation with Paul Swift from the law firm of Gorsuch, Kirgis, Campbell, Walker and Grover who is assisting in the PUC application for the railroad crossing. Mayor Alpi reported on his meeting with Rick Olson of the Department of Soil Conservation concerning Lake Nottingham. He also discussed the clearing of road sides, painting road lines and snow plowing. In other business, the meeting of Councilmembers, Benchmark Company and the Bureau of Land Management on August 23rd was discussed. Carol Richards asked for approval of a bill to be paid to Motorola in the amount of $3,320.62 for Avon Police Department radio equipment. Steven Erickson moved the bill be paid, Richard Casserley seconded the motion and it was carried unanimously. -2- There being no further business before the Council, Richard Casserley moved the meeting be adjourned, seconded by Steven Erickson and ad- journed by the Mayor at 10:00 P.M. Respectfully submitted, I- ==7'd4 t"'O_L~ -3- • • • STATE OF COLORADO ) COUNTY: OF FIUGiE Ss TOWN OF AVON ) NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN OF a public heariizg- before the Town Council of the Town mf Awn, Colorado, at 7:30 P.M. on the 11th day of September, 1979 at the Town Hall for the purpose of considering the adoption of AN ORDINANCE N4ENDING ORDINANCE NUMBER 17, SERIES OF 1979, BY THE REPEAL AND REENAC0,92U OF SECTION H, SUBSECTION6, THE ONLY CHANGE IN WHICH IS THE SUBSTITUTION OF THE WORDS "AVON POLICE CHIEF" FOR THE WORDS "T0.1N MARSHAL", WHERE THOSE WORDS APPEAR IN THE FIFTH LINE OF THE TEXT IN SUBSECTION 8.24.030 OF THE MATERIAL ADOPTED, THE VAIL MUNICIPAL OODE. A copy of said Ordinance is attached hereto and is also on file at the office of the Town Clerk and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This meeting is open to the general public. This notice given and published by order of the Town Council of the Town of Awn. Dated this 4th day of September, 1979. ZU,N OF AVON, COLORADO By order of the Town Concil By CA~_~ '?gym Clerk Posted at the following public places within the Town of Avon September 4th, 1979 at: The Northeast side of the Benchmark Shopping Center (Awn post office) The main entrance - Eagle Valley Bowl The Pester Gas Station; and The Town Office, Second Floor, Benchamrk Shopping Center ORDINANCE NO. 20 SERIES OF 1979 AN ORDINANCE AMENDING ORDINANCE NUMBER 17, SERIES OF 1979, BY THE REPEAL AND REENACTMENT OF SECTION H, SUBSECTION 6, THE ONLY CHANGE IN WHICH IS THE SUBSTITUTION OF THE WORDS "AVON POLICE CHIEF" FOR THE WORDS "TOWN MARSHAL", WHERE THOSE WORDS APPEAR IN THE FIFTH LINE OF THE TEXT IN SUBSECTION 8.24.030 OF THE MATERIAL ADOPTED, THE VAIL MUNICIPAL CODE. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO THAT: Section 1. Repeal and reenactment - New text. Section H, Subsection 6, Ordinance Number 17, Series of 1979, is hereby repealled and reenacted to read as follows: "6, Title 8, Chapter 8.24 is hereby adopted in its entirety including the footnotes, except as follows: Section 8.24.030 shall be amended to read 'Avon Police Chief' in the fifth line of the text, where the words 'Town Marshal' appear, which words shall be deleted. Section 8.24.030 shall also be amended to include the words ':provided that firing or the discharging of such weapons was reasonable in light of all the attendant circumstances.' following the words 'person or pro- perty.' in the eighth line of the text and the period at the end of that line shall be changed to a comma. Further, that Section 8.24.140 which sets out the pen- alties for violations of the preceeding sections, which penalties are also set out generally elsewhere in this Ordinance." -1- Section 2. Severability. If any provision, clause, phrase or section of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions, clauses, phrases or sections or applications of the Ordinance which can be given effect without the invalid provisions or applications and to this end the provisions or applications of this Ordinance are declared to be severable. INTRODUCED, PASSED ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL, this , o ~e .1979 and a public hearing on this Ordinance shall be held at t regular meeting of the Town Council of the Town of Avon, Colorado, on the day of 1979, at 7:30 P.M. in the Municipal Offices of the Town. Mayor; ATTEST: Town Clerk / INTRODUCED, PASSED ON SECOND READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL, this day of , 1979. This Ordinance will become effective on . 1979. Mayor ATTEST: Town Clerk -2- STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN OF A public hearing before the Town Council of the Town of Avon, Colorado, at 7:30 on the 28th day of August, 1979 at the Town Hall for the purpose of considering the adoption of ORDINANCE NO. 19, Series of 1979: AN ORDINANCE AMENDING ORDINANCE NO. 2. SERIES OF 1978, BY CHANGING A REFERENCE TO A CERTAIN SECTION OF THE MODEL TRAFFIC CODE FROM AN INCORRECT TO A CORRECT REFERENCE. A copy of said Ordinance is attached hereto and is also on file at the office of the Town Clerk and may be in- spected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice given and published by order of the Town Council of the Town of Avon, Colorado. Dated this TOWN OF AVON, COLORADO By: A ring Tow Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON AUGUST 16, 1979. THE NORTHEAST SIDE OF THE BENCHMARK SHOPPING CENTER, (AVON POST OFFICE) THE MAIN ENTRANCE OF EAGLE VALLEY BOWL THE PESTER GAS STATION; AND THE TOWN OFFICE, SECOND FLOOR, BENCHMARK SHOPPING CENTER ORDINANCE NO. 19 SERIES OF 1979 AN ORDINANCE AMENDING ORDINANCE NO. 2. SERIES OF 1978, BY CHANGING A REFERENCE TO A CERTAIN SECTION OF THE MODEL TRAFFIC CODE FROM AN INCORRECT TO A CORRECT REFERENCE. WHEREAS, a reference to a certain Section of the Model Traffic Code has been inserted incorrectly into the Town of Avon, Ordinance Number 2, Series of 1978; NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: Section 1. Ordinance Number 2, Series of 1978, Section 3, "Application", is hereby repealed and reenacted to read as follows: Section 3. 'lpplication. This Ordinance shall apply to every street, alley, sidewalk area, driveway, park, and to every other public way or public place or public parking area, either within or outside the corporate limits of the municipality, the use of which this municipality has jurisdiction and authority to regulate. The provisions of Section 5-1, 5-2, 15-12, 21-13 and 23-3 of the Adopted "Model Traffic Code," respectively, concerning reckless driving, careless driving, unauthorized devices, eluding officer, and accident investigation shall apply not only to public places and ways but also throughout this municipality. Section 2. If any part section, subsection, sentence, clause or Phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance; and the Town Council hereby declares it would have passed this Ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. -1- Section 3. The Council hereby finds, determines and declares that this Ordinance is necessary and proper for the health, safety and welfare of the. Town of Avon and the inhabitants thereof. INTRODUCED, READ ON ONCE 114 FULL THIS / -~/Z-Z- hearing on this Ordinance s Town Council of the Town of 1979. FIRST READING, APPROVED AND ORDERED PUBLISHED day of 19.79., and a public tall be held at the regular meeting of the. Avon, Colorado, on the day of Mayor Pro Tem -r- ATTEST: A Ac ng Town/Clerk C1 - INTRODUCED; READ ON SECOND READING, APPROVED, A14D ORDERED PUBLISHED THIS day of , 1979. ATTEST: Mayor Town Clerk -2- STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) a NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN OF A public hearing before the Town Council of the Town of Avon, Colorado, at 7:30 on the 28th day of August, 1979 at the Town Hall for the purpose of considering the adoption of ORDINANCE NO. 16, Series of 1979: AN ORDINANCE GRANTING A FRANCHISE TO ROCKY MOUNTAIN CABLE TV, INC., ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, OPER- ATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE TOWN OF AVON, COLORADO, AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE AND PROVIDING FOR TOWN APPROVAL AND REGULATION AND SETTING OUT ADDITIONAL DETAILS IN RE- LATION THERETO. A copy of said ordinance is attached hereto and is also on file at the office of the Town Clerk and may be in- spected during regular business hours. Following this hearing, the Council may, consider final passage of this ordinance. This notice given and published by order of the Town Council of the Town of Avon, Colorado. Dated this TOWN OF AVON, COLORADO BY: 1 " Act ng Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON AUGUST 21, 1979. THE NORTHEAST SIDE OF THE BENCHMARK SHOPPINC CENTER, (AVON POST OFFICE) THE MAIN ENTRANCE OF EAGLE VALLEY BOWL THE PESTER GAS STATION; AND THE TOWN OFFICE, SECOND FLOOR, BENCHMARK SHOPPING CENTER • • ORDINANCE NO. 16 SERIES OF-1979, AN ORDINANCE GRANTING A FRANCHISE TO ROCKY MOUNTAIN CABLE TV, INC., ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE TOWN OF AVON, COLORADO, AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE AND PROVIDING FOR TOW14 APPROVAL AND REGULATION AND SETTING OUT ADDITIONAL DETAILS IN RELATION THERETO. WHEREAS, the provisions of Section 17.6 of the Town Charter for the Town of Avon, Colorado, have been altered as a result of the Special Municipal Referendum Election held in the Town of Avon, Colorado on July 10, 1979; and WHEREAS, the Town Council may now establish by Ordinance, without further approval of the electorate, the terms, fees, compen- sation, conditions, and any other matters related to the granting of franchises; and WHEREAS, the Town Council has determined that substantial numbers of residents of the Town of Avon desire to receive Cable TV service; and WHEREAS, in order to permit the installation of a Cable TV System within the Town of Avon, it is necessary for the Town to authorize the use of certain easements and rights-of-way; NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: Section'l. Title. This Ordinance shall be known as the "Ordinance granting a CATV Franchise." Section 2. Definitions. For the purpose of this Ordinance, the following terms, phrases, words, abbreviations and their derivations shall have the meaning herein given. When not inconsistent with the context, words used in the present tense include -1- the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory. The captions supplied herein for each Section are for convenience only. Said captions have no force of law, are not part of the Section, and are not to be used in construing the language of the Section. The following terms and phrases, as used herein, shall be given the meaning set forth below: A. "Town" is the Town of Avon, Colorado, a home rule municipal corporation organized under the laws of the State of Colorado. B. "Grantee" is Rocky Mountain Cable TV, Inc., a corporation organized and existing under the laws of the State of Colorado, and it is the grantee of rights under this Ordinance and Franchise. C. "Town Council" is the Town Council of the Town of Avon, Colorado, or its designated repre- sentative. D. "Federal Communications Commission" or "FCC" is the present federal agency of that name as constituted by the Communications Act of 1934, or any successor agency created by the United States Congress. E. "Person" is any individual, firm, partner- ship, association, corporation, company or organi- zation of any kind. F. "Gross Subscriber Revenues" shall include all compensation derived from periodic service charges in connection with the carriage of broadcast signals, but shall not include refunds or credits made to subscribers, or taxes imposed upon the -2- • • services furnished by the Grantee. It shall also include all revenue from "ancillary" or "auxiliary" services, which include but are not limited to, advertising, leased channels, and programming supplied on a per program or per channel charge basis, if any. G. "Regular Subscriber Service" shall include the carriage of broadcast signals, but shall not include "ancillary" or "auxiliary" services, which include, but are not limited to, advertising, leased channels, and programming supplied on a per program or per channel charge basis, if any. Section 3. Grant of Authority-Exclusivity. There is hereby granted by the Town to Grantee, the right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over or under the streets, alleys, easements, public ways and public places now laid out or dedicated and all extensions thereof and additions thereto in the Town, including any future annexations, all poles, wires, cables, under- ground conduits, manholes and other conductors and fixtures necessary for the maintenance and operation in the Town of a Cable Television System for the transmission of television signals and all other signals permitted by the FCC, with all of the necessary and desirable appliances and appurtenances pertaining thereto. This grant is subject to the requirements of Section 5, which require that the Grantee shall place underground, to the fullest extent possible, wires, cables and all other fixtures necessary for the maintenance and operation of its Cable Television System in the Town. Without limiting the generality of the foregoing, this franchise and grant shall and does hereby include the right in, over, under and upon the streets, sidewalks, alleys, easements and -3- public grounds and places in the Town to install, erect, operate or in any way acquire the use of, as by leasing or licensing, all lines and equipment necessary to a Cable Television System and the right to make connections to subscribers and the right to repair, replace, and enlarge and extend said lines, and equipment connections. The rights herein granted for the purposes herein set forth shall be exclusive in the Grantee, and the Town shall not grant a similar use of said streets, alleys, easements, public ways and places to any person at any time during the period of this franchise; provided, however, the Grantee shall upon such terms and conditions as may be dictated by the Town, and as are contained in this Grant, meet and continue to meet its obligation to the public to provide the fullest and best possible programming and service consistant with a reasonable rate structure and a reasonable return on investment. Section 4. Indemnification. Grantee shall indemnify and save the Town harmless from all loss sustained by the Town on account of any suit, judgment, execution, claim or demand whatsoever against the Town resulting from any negligent act or omission on the part of Grantee in the construction, operation or maintenance of its Cable Television System in the Town; and for this purpose, Grantee shall at all times carry property damage and personal injury insurance with a responsible insurance carrier qualified to do business in the State of Colorado. The amounts of such insurance to be carried for liability due to property damage shall be fifty thousand dollars ($50,000) for property damage in any one accident; and against liability due to injury or death of a person, one hundred thousand dollars ($100,000) to any one person in any one accident and three hundred thousand dollars ($300,000) for personal -4- injuries or death to all persons in any one occurrence. The Town shall notify Grantee in writing within a reason- able amount of time after the presentation of any notice of a claim or demand, either by suit or otherwise, made against the Town on account of any alleged negligent act or omission as aforesaid on the part of Grantee. Where any such claim or demand against the Town is made by suit or legal action written notice thereof will be given by the Town to the Grantee not less than five (5) days prior to the date upon which an answer to such legal action is due or within ten (10) days after the claim or demand is made upon the Town, whichever notice period yields Grantee the larger amount of time within which to prepare an Answer. Section 5. Construction and Maintenance - Police Power. A. Grantee shall place underground to the fullest extent possible, wire, cables and all other fixtures necessary for the maintenance and operation of its Cable Television System in the 'Town. B. All structures, lines and equipment erected or installed by Grantee within the Town shall be so located as to cause no interference whatsoever with the proper use of streets, alleys, easements and other public ways and places and to cause minimum interference with the rights and reasonable use and convenience of property owners and Grantee shall comply with all Ordinances of the Town now or here- after in force. Additionally, Grantee shall at all times be subject to all lawful exercises of the Police Power of the Town. Existing conduits and other such structures of any electric power system, telephone company, or other public utility located in the Town shall be made available to Grantee for leasing or licensing upon reasonable terms and rates. Grantee -5- shall avoid any unnecessary duplication of such facilities. The Town shall actively assist Grantee to the fullest extent possible in obtaining reason- able joint use agreements from the owners of such existing equipment. To the extent that existing conduits and other such structures are not available, or not available under reasonable terms and conditions, Grantee shall have the right to purchase, lease or in some other manner acquire land or rights-of-way upon or under which to erect and maintain its own conduits and other structures as may be necessary for the construction and maintenance of its Cable Television System. C. In case of any disturbance by Grantee of any pavement, sidewalk, driveway, or other surfacing, Grantee shall, at its own cost and expense and in a manner approved by the Town, replace and restore such paving, sidewalk, driveway, or surface so disturbed and return it to as good condition as before said work was commenced. D. In the event that at any time during the period of this franchise, the Town shall elect to alter or change any street, alley, easement, or other public way requiring the relocation of Grantee's facilities, then Grantee, upon reasonable notice by the Town, shall remove; re-lay and relocate the same, and Grantee shall bear the entire cost of such relocation; provided, however, that where public funds are specifically available for such re-laying or relocation, or where it is possible to share such costs with other utilities whose facilities are also being re-layed or relocated, Grantee shall bear only a portion of the said relocation expense. -6- E. All poles, lines, conduits, structures and other facilities of Grantee in, on, over and under the streets of the Town shall be kept by Grantee at all times in a safe and satisfactory condition. Section 6. FCC Rules Applicable. This Franchise is governed by and is subject to all applicable rules, regulations and policies of the Govern- ment of the United States, including the Federal Communi- cations Commission, and the laws of the State of Colorado. Should there be any modifications of the rules and regulations of the Federal Communications Commission that must by law be incorporated into this Franchise, the Town and Grantee agree that such incorporation shall be accomplished within one (1) year after the effective date of the FCC's adoption of the modification or upon renewal of this Franchise, whichever occurs first. This Franchise shall take effect and be in full force from and after acceptance by Grantee as provided in Section 15, and shall continue in full force and effect for an initial term of fifteen (15) years. The expiration date of the initial fifteen (15) year Franchise is hereby stipulated to be December 31, 1994. Section 7. Renewal Procedure. Grantee shall have the option to request a renewal of this franchise for an additional period not to exceed fifteen (15) years. Should Grantee desire to exercise this option, it shall notify the Town, in writing, not less than three (3) months prior to the expiration of this Franchise. The expiration date of the initial fifteen (15) year Franchise is hereby stipulated to be December 31, 1994. Upon Grantee's request to exercise this renewal option, the Town shall conduct a full, open, public renewal inquiry proceeding and shall provide notice thereof and an opportunity for all interested -7- to be heard. The renewal proceedings shall be held to consider the Grantee's performance during the period of this Franchise and to determine whether or not to renew this Franchise. Renewal shall not be unreasonably denied, and shall be granted unless Grantee is found to be unqualified to continue operation of this Cable Television System or not operating in the public interest, convenience and necessity. If this Franchise is renewed by the Town, all the terms and provisions contained herein shall be controlling during the renewal period, except to the extent that said terms and provisions are modified, amended, omitted, deleted, or changed by the Town, or unless this Franchise is superceded by a new Franchise. Should the Town, for any reason, be unable to complete the renewal proceedings prior to expiration of this Franchise, Grantee shall have the right to continue operation of its Cable Television System pursuant to the terms of this Franchise and until such time as the renewal proceedings are concluded. Should the Town deny renewal of this Franchise, such denial shall be accompanied by a written statement setting forth the reasons for the denial. Grantee shall have the right to request review of any such denial by any court of competent jurisdiction. Furthermore, in the event the Town denies renewal, Grantee shall be afforded a period of six (6) months following such denial within which to sell, transfer, or convey this Cable Television System to a qualified purchaser at a fair market value. During the six (6) month period, which shall run from effective date of the final order or decision denying renewal, including any appeal, Grantee shall have the right to operate its Cable Television System pursuant to the terms of this Franchise. -8- • Section 8. Forfeiture. If Grantee shall violate the terms, conditions, or provisions of this Franchise or if Grantee should fail to comply with any reasonable provisions of any Ordinances of the Town regulating the use by Grantee of the streets, alleys, easements or public ways of the Town, and should Grantee further continue to violate or fail to comply with the same for a period of thirty (30) days after Grantee shall have been notified in writing by the Town to cease and desist from any such violation or failure to comply so specified, then Grantee may be deemed to have forfeited and annulled and shall thereby forfeit and annul the rights and privileges by this Franchise; provided, however, that such forfeiture and annulment shall be declared only by written decision of the Town Council and after an appropriate public proceeding before the Town Council affording Grantee due process and full opportunity to be heard and to respond to any such notice of violation or failure to comply; and provided further the Town Council may, in its discretion and upon a finding of violation or failure to comply, impose a lesser penalty than forfeiture of this Franchise or excuse the violation or failure to comply upon a showing by Grantee of mitigating circumstances. Grantee shall have the right to appeal any finding of violation or failure to comply and any resultant penalty to any court of competent jurisdiction. In the event that forfeiture is imposed upon Grantee, it shall be afforded a period of six (6) months within which to sell, transfer, or convey this Cable Television System to a qualified purchaser at a fair market value. During the six (6) month period, which shall run from the effective date of the final order or decision imposing forfeiture, including any appeal, Grantee shall have the right to operate this Cable Television System pursuant to the provisions of this Franchise. -9- Section 9. Payment to Town. In consideration of the terms of this Franchise, Grantee agrees to pay and shall pay, according to the following schedule, the specified percentage of its'. Gross Subscriber Revenues: Calendar year, 1980 - - - - One Percent (1%) Calendar Year, 1981 - - - - Two Percent (2%) Calendar Year, 1982 - - - - Two Percent (2%) Calendar Year, 1983 and each succeeding calendar year through the initial fifteen year term of this Grant - - - - Three Percent (3%). Should Grantee exercise:its renewal option as described in Section 7 above, the payment to be made during the second fifteen year term shall be as determined by the Town Council at the time the renewal is granted, but if no such determination is made, or during any holdover period, Grantee shall pay to the Town annually, three percent (3%) of its Gross Subscriber Revenues. Because it is understood by the Town that Grantee's intention in charging for installation and hook-up is simply to recoup its out of pocket expenses and to provide for the varying needs and desires of its subscribers, the Town will not impose any Franchise or other fee on the revenue derived from those sources. All fees and revenue due the Town under this Section shall be computed using the Total Gross Subscriber Revenues for the entire calendar year, which shall also be known as the "operating year". Final and total, complete payment of this Franchise Fee to the Town shall be made not later than April 1 of the following year. Nothing contained herein shall be construed as preventing payment at some earlier date or partial payment during -10- • • the course of the operating year, which shall be at the option of Grantee. Any amounts due, but unpaid as of April 1 of any given year shall draw interest at the rate of twelve percent (12%) per year. Section 10. Sale or Transfer of Ownership Interest. The Town has awarded this Franchise based on the specific representations of the Owners and Agents of Rocky Mountain Cable TV, Inc., regarding the nature and quality of the services to be offered both in the present and the future. This award has been made after considering the proposals which have been made by others who offered to provide similar services. While the grant of the Franchise is not a personal one to the Owners of the Grantee Corporation, the award is, nevertheless, based on representations made by those individuals. The individuals who presently own, manage and direct the Grantee Corporation are Darrell Davis and Jerrell Davis. If these individuals at any time wish to dispose, sell, transfer or convey any amount or percentage of their jointly held ownership interest, which disposition, sale, transfer or conveyance when completed would leave the total amount of issued stock held by these individuals at less than 51% ( a controlling interest), they must seek and obtain the approval of the Town Council before doing so. Such approval shall not be unreasonably withheld. Other dispositions, sales, transfers and conveyances, which do not amount to relinquishment of controlling interest by Darrell Davis and Jerrell Davis may take place without Council approval, but shall be called to Council's attention by means of a Change of Ownership Statement which shall be filed with the Town Clerk within ten days of any such disposition, sale, transfer or conveyance. Such Change of Ownership Statement shall include a specific list of all ownership interests in the Grantee Corporation -11- • 0 including an accounting of any unissued stock, and an indication of the specific percentage which each owner holds, both prior to and following the subject disposition, sale, transfer or conveyance. Nothing in this agreement shall be deemed to prevent or prohibit the assignment, pledge or hypothecation of stock in the Grantee Corporation, including by Darrell Davis and/or Jerrell Davis, when and only when such assignment, pledge or hypothecation is in fact being used as collateral for a loan to improve, upgrade or expand the Cable TV System which is the subject of this Franchise. This shall be permissible even when it results in Darrell and Jerrell Davis being without unencumbered controlling interest in the Grantee Corporation. Any such assignment, pledge or hypothecation of stock shall be made known to the Town Council by the filing of a copy of the document under which such assignment, pledge or hypothecation was achieved. A copy of such document shall be filed with the Town Clerk within ten days of its effective date. In any assignment, pledge or hypothecation of any kind by Grantee Corporation or any of its Owners, there shall exist a provision under which the Town of Avon is granted and assured a right of prior redemption in the case of a default by Grantee Corporation. Evidence of the existence of this right of prior redemption shall be furnished and filed with the Town Clerk within ten days of the effective date of the assignment, pledge or hypothecation. Nothing in this agreement shall be deemed to create in any way any obligation or duty of the Town to exercise the Right of Prior Redemption granted herein. Section 11. Annual Review and Consultation - Review of Rates - Approval by Council. Each year that this Franchise is in effect, including any period of renewal or extension granted pursuant to Section 7 of this Ordinance, there shall be an Annual -12- Review. This shall consist of a meeting of the Town Council, either a study session or regular or special meeting or any combination of them, as the Council may determine, at which stockholders, agents or representatives of Grantee shall appear and provide, in as much detail as requested by the Town Council, facts concerning the history of the Grantee Corporation, both with respect to financial matters and to operations. This annual Review shall take place at the first regular meeting held during the month of April of each year. Grantee shall also have the opportunity to present, and may be requested to provide information concerning future plans for expansion of its system and/or additional services to be offered. It is anticipated that this Annual Review will be a cooperative sharing of ideas as well as a constructive review of any problems or complaints which may have arisen during the previous operating year. It is appropriate for Grantee to raise the issue of rate changes at this Annual Review although Grantee is hereby also specifically authorized to appear before the Town Council at any regular meeting, by notifying the Town Clerk of its desire to be placed on the Agenda at least one week in advance of the regular meeting at which it wishes to appear, to present any rate changes which it desires to make. In the event that Grantee requests a rate change, it shall present to the Town Council, at a regular or special meeting of the Town Council, such evidence and supporting material as it may desire. Grantee shall also be prepared to respond to questions from the Town Council and the Public. In considering a rate change, the Council shall vote to either pass or not pass the Ordinance containing the new rate schedule, which Ordinance shall be treated as other Avon Ordinances, except that a new rate schedule change shall not be passed -13- • • as an Emergency Ordinance. If the Ordinance is not passed, adopted and enacted by the Town Council, the rate schedule shall remain as it existed previously. The Council may consider any factors which it deems relevant in determining whether or not to adopt a proposed rate schedule change. Section 12. Rate Schedule. The following rate schedule shall be in effect during the term of this Franchise unless and until it is modified, changed or amended by the Town Council: MONTHLY RESIDENTIAL INSTALLATION CHARGE New Installation (underground) $ 40.00 $ 9.95 Prewire (per outlet) 15.00 Hookup for prewire (per unit) 25.00 9.95 Reconnection 15.00 9.95 Relocation of Outlet 15.0.0 9.95 Additional Outlet 15.00 2.50 FM Outlet 15.00 2.50 Pay TV (HBO) 15.00 9.00 COMMERCIAL RATES Apartment - Condominium 10.0% Long term - per unit 40.00. 12 units - 36 units 8.95 over 36 units 7.95 HBO - 1000 (per unit) 5.0.0 8.00. Lodges - Motels (1 00%) Short term (per unit). 25.0.0. 6.95 HBO - 1000 (per unit) 5.00 7.00 Bars & Lounges 40.00 9.95 Additional outlets 15.00 2.50 Pay TV (HBO) 15.00 9.00 Payment of 1 full year in advance - 13th month - no charge. Rocky Mountain Cable TV will continue to provide TV service to all residences on the present system. Sub- scribers now on the present system will not be required to pay any hook-up or reconnect fees when full service is initiated (does not include HBO). Nothing in this Ordinance shall be deemed to prohibit reasonable promotional rates, which may, from time to time, be less than the rates set forth above. Any action by the FCC or any other Federal Govern- ment Agency which is also imposed on other similar Cable -14- E • TV Systems, such.as an increase in the copyright fee, which results in a direct per subscriber expense to Grantee, shall be passed on to all subscribers directly at the time that such additional expense is incurred by Grantee without further approval or authorization by the Town Council. If such an event occurs, Grantee hereby agrees to notify all subscribers of the increase within thirty days of the additional fee being assessed and such notice shall state the reason for the increase and a statement that such rate increase has been auto- matically assessed under the provisions of this Franchise Aareement. Section 13. Construction of System _ Extent of Service. Grantee hereby agrees to construct its Cable TV System as quickly as is reasonably practicable. Due to the construction in the Town of Avon at the present time and in light of the plans for additional development and construction, including the installation of underground utilities and construction of roads, all of which is known to Grantee, Grantee hereby agrees to install its cable as the opportunity presents itself and to provide service as soon as possible in those areas where such service is requested. Although it is anticipated that Grantee intends to provide and will provide service to all those eventually located within the present Town Limits who request such service, and it is desirable that Grantee shall provide. service to all those located within any future Town Limits, including any area later annexed by the Town, nothing in this Franchise shall be interpreted to require that Grantee provide service to any specific prospective -15- • subscriber, provided that providing such service would constitute a financial burden or hardship on Grantee. In the absence of a showing of such hardship or burden, if requested, Grantee shall not refuse to provide service to anyone who requests it. Additionally, in any situation where the prospective subscriber is willing to pay the difference between Grantee's normal installation expenses and the actual installation expenses for the location at which service is being requested, Grantee shall make such installation and provide such service, and may require that the estimated expense of such installation be paid prior to the actual installation. Section 14. Line Severing. A. At any time the Grantee's cable and/or other equipment is disturbed, damaged, or severed, the cost of repair shall be paid by the party responsible for said damage. The Company may charge the responsible party for the time and materials expended for repair of said damage. Further, the Town will cooperate with the Company to assist it in enforcing any charge or penalization arising from cable severing or other damage to Grantee property. The Grantee shall repair any damage to its cable or other equipment and restore service immediately if such is feasible or otherwise as promptly as practicable, ordinarily prior to seeking payment for the damage or repair from the responsible party. B. A person or entity planning an excavation within the Town may request the Grantee to inform it of the location of its cable or other equipment in the vicinity of the planned excavation, and as promptly as practicable after its receipt of the request, the Grantee shall give said information to -16- said person or entity; the Grantee shall furnish said information within 48 hours, excluding Saturdays,. Sundays, and Colorado legal holidays, unless unusual ' circumstances preclude it from doing so; the willful or negligent failure of the Grantee to furnish said information shall relieve the person or entity which requested it from the obligation to pay for the damage or repair that it causes or necessitates to the Grantee's cable or other equipment, provided that said person or entity uses reasonable care in making the planned excavation; provided, further, that where there is sufficient time, the request for information and the information furnished shall be in writing. C. In the event any necessary repair is not completed within 48 hours after the damage to the cable or other property occurs, the Grantee shall inform the Town thereof, in writing if feasible, giving the reasons for the delay and the estimated time when the repair will be completed. Section 15. Safety Requirements. A. The Grantee shall at all times use ordinary care in the construction, operation, maintenance, repair, and utilization of its cable and other facilities and shall install, maintain, and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to persons or property. B. All structures and all lines, equipment, and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places in the Franchise area, wherever situated or located, shall at all times be kept and maintained in a reasonable, safe, and appropriate condition and in good order and repair. -17- Section 16. Local Office - Complaints. The Grantee shall maintain an office in the Town or 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 investi- gation by the Grantee for more than a 24 hour period. Accurate records shall be kept by the Grantee summarizing the nature, extent, time, and date by which the complaint was resolved or sought to be resolved. The Grantee 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 Grantee to respond to subscriber complaints. Should a subscriber have an unresolved complaint regarding the quality of cable television service, equipment malfunctions, or other pertinent matters, the subscriber shall be entitled to meet jointly with the Mayor or Town Manager and the Grantee's System Manager to fully discuss and 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 Mayor or Town Manager, who shall cause a copy of such complaint to be immediately forwarded-to Grantee's system manager. Grantee shall then have five days after receivng the compalint within which to correct the problem and file a written response with the Mayor or Town Manager stating specifically what has been done to correct the problem. If the subscriber remains unsatisfied following this procedure, he may then request that such a meeting with the Mayor or Town Manager and Grantee's system manager be held. -18- 9 Section 17. Preferential or Discriminatory Practices Prohibited. The Grantee shall not as to rates, charges, service facilities, rules, regulations, or in any other respect make or grant any preference or advantage to any person or entity nor subject any person or entity to any prejudice or disadvantage; provided, however, that connection and service charges may be waived or modified during promotional campaigns of the Company. Section 18. Privacy of Subscribers. Grantee shall not sell or otherwise furnish or make available any list of the names and/or addresses of its subscribers to any person or entity for any purpose what- ever. Section 19. Provision of Service to Agencies of the Town.. The Grantee shall provide without charge one outlet to each governmental office building, fire station, police Station, public and non-profit private school building in the Franchise area that is passed by its cable.. The distribution of the cable facility inside such buildings and the extent thereof shall be at the option, duty, and expense of the building owner or occupant.. Section 20. Violations. A. From and after the effective date of this ordinance, it shall be unlawful for any person or entity to construct, install, or maintain within any public street in the Town, or within any other public property of the Town, or within any privately-owned area within the Town which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the Town, any equipment or facilities for distributing any television signal or radio -19- !1 i signal through a CATV system, unless a Franchise authorizing such use of such street, property, or % area has first been obtained from the Town, unless such Franchise is then in full force and effect. B. It shall be unlawful for any person or entity to make any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of the Franchised CATV system within the Town for the purpose of enabling himself or another person or entity to receive any television signal, radio signal, picture, program, or sound, without payment to the operator of said cable system. C. It shall be unlawful for any person, without the consent of the Owner, to willfully or negligently tamper with, remove, or injure any cables, wires, or equipment used for distribution of franchised television signals, radio signals, pictures, programs or sound. Section 21. Penalties. Any person or entity violating or failing to comply with any of the provisions of Section 20 of this Ordinance shall be guilty of a misdemeanor and for each day of violation or failure to comply may be punished by a fine not to exceed $30.0.00 or by imprison- ment for a term not to exceed ninety (90) days or by both such fine and imprisonment. Section 22. Arbitration. A. Disputes between the Town and the Grantee arising from the failure of either party to comply with the provisions of the Franchise Ordinance or any collateral agreements which cannot be resolved -20- by the parties may be submitted to binding arbi- tration as hereinafter provided. B. The Town and the Grantee shall endeavor to resolve all disputes, except as otherwise provided herein, by preliminary procedures to be agreed upon. Disputes or complaints not resolved by the prelim- inary procedures may be submitted to binding arbi- tration. C. The arbitration procedure shall be substan- tially as follows: 1. The party demanding arbitration shall serve notice on the other party of the nature of the complaint, stating the facts and grounds and relief sought in reasonable detail. 2. If a settlement is not reached within 30 days after service of the aforesaid notice, the Town and the Grantee shall within 30 days thereafter each appoint as an arbiter a person knowledgeable of cable television who is not connected or associated with either the Town or the Grantee, its parent, or subsidiary corporations, and these two arbiters shall then a appoint a third arbiter as promptly as practicable and in any event within 30 days after their appointments. 3. Within 30 days following the appointment of the third arbiter, the arbitration board so constituted shall meet, establish reasonable procedures, conduct a public hearing, obtain evidence from the Town, the Grantee, subscribers, and any other interested person or entity, and, based upon the admissible evidence, resolve the dispute on a reasonable and equitable basis and consistent with the Franchise and any effective collateral agreements. -21- • • 4. The decision of the arbitration board, reached by a majority vote, shall be binding upon the Town and the Grantee. 5. Costs for an arbitration shall be paid by the parties equally or in some other equit- able manner as determined by the arbitration board. Section 23. Surrender Right. Grantee may surrender this Franchise at any time upon filing with the Town Clerk of the Town of Avon a written notice of its intention to do so at least three (3) months before the surrender date. On the surrender date specified in the notice, all of the rights and privileges and all of the obligations, duties and liabilities of Grantee in connection with this Franchise shall terminate. Section 24. Acceptance. This Ordinance shall become effective when accepted by Grantee and shall then be and become a valid and binding contract between the Town of Avon and Grantee; provided, however, that this Ordinance shall be void unless Grantee shall, within ninety (90) days after the final passage of this Ordinance, file with the Town Clerk of the Town a written acceptance of this Ordinance and the Franchise herein granted, agreeing that it will comply with all of the provisions and conditions hereof and that it will refrain from doing all of the things prohibited by this Ordinance. Section 25. Effective Date. This Ordinance shall become effective upon acceptance by Grantee as provided in Section 24. The effective date shall be the date upon which the written acceptance provided for in Section 24 is received by the Town Clerk. -22- • Section 26. Severability. • If any part, section, subsection, sentence, clause. or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance; and the Town Council hereby declares it would have passed this Ordinance, and each part, section, subsection, sentence, clause, or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. INTRODUCED, READ ON THE FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL, THIS 14th DAY OF August , 1979, AND A PUBLIC HEARING ON THIS ORDINANCE SHALL BE HELD AT THE MEETING OF THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, ON THE 28th DAY OF August , 1979, AT 7:30 P.M. IN THE 111UNICIPAL OFFICES OF THE TOWN. Mayor Pro Tem ATTEST: Act g Town C6rk INTRODUCED, READ ON SECOND READING, APPROVED, A14D ORDERED PUBLISHED THIS DAY OF , 19-79- ATTEST: Town Cler Mayor -23-