TC Ord. No. 1996-01 Granting Renewal of a Franchise to Cablevision VII, INCORDINANCE NO. 36 -1
Series of 1995
AN ORDINANCE GRANTING RENEWAL OF A FRANCHISE
TO CABLEVISION VII, INC. D /B /A TCT
CABLEVISION OF THE ROCKIES, INC., TO
CONSTRUCT, OPERATE AND MAINTAIN A CABLE
TELEVISION SYSTEN.IN THE TOWN OF AVON,
COLORADO; AND "PROVING A CABLE TELEVISION
FRANCHISE AGREEMENT
WHEREAS, Ordinance No. 83 -33 granted to Heritage
Cablevision, Inc., is successors and assigns, a franchise to
construct, operate and maintain a cable television system in the
Town'of Avon; and
WHEREAS, Ordinance No. 83 -33 was thereafter amended by
Ordinance No.- 88 -5; and
WHEREAS, on May 1, 1991, Cablevision VII, Inc., assumed
management responsibility of the franchise granted by the
aforesaid ordinances; and
WHEREAS, the Town and Cablevision VII, Inc., desire to
renew such franchise and to enter into the Cable Television
Franchise Agreement, a copy of which is attached hereto as
Exhibit "A;"
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO:
Section 1. Renewal of Franchise. The franchise
granted by Ordinance No. 83 -33, as amended by Ordinance No. 88 -5,
and now held by Cablevision VII, Inc., is hereby renewed and
shall continue in full force and effect until December 31, 2010.
Section 2. Approval of Franchise-Agreement. Said
franchise shall be subject to the terms and conditions of the
Cable Television Franchise Agreement, a copy of which is attached
hereto as Exhibit "A," which Agreement is hereby approved.
Section 3. Severability. If any part, section,
sentence, clause or phrase of this Ordinance or of the Agreement
is for any reason held to be invalid, such decision shall not
affect the validity of the remaining portions thereof; and the
Town Council for the Town of Avon hereby declares it would have
passed this Ordinance and approved the Agreement and each part,
section, sub - section, sentence, clause or phrase thereof,
irrespective of the fact that any one or more parts, sections,
sub - sections, sentences, clauses or phrases be declared invalid.
INTRODUCED, PASSED ON FIRST,READING, APPROVED AND ORDERED POSTED,
this 23rd day of January, 199E and a public hearing on this
Ordinance shall be held at the regular meeting of the Towns
Council of the Torn of Aron, Colorado on the 13th day of
F'ebruary , 1996 at 7:34 P.M. in the Municipal Building of the
Town of Avon, Colorado.
bray s r
Attest:
t
Town Clerk
INTRODUCED, PASSED ON SECOND READING,
this 13th day of February r
Attest; i
Town Clerk
Ap - roved as to Form:
c
Town Attorney
�i`
APPROVED AND ORDERED POSTED
i
2-13-96
CABLE TELEVISION FRANCHISE AGREEMENT
BETWEEN THE TOWN OF AVON
AND CABLEVISION VII, INC.
DIBIA. TCl CABLEVISION OF THE ROCKIES, INC.
AVAJL01-0M
TABLE OF CONTENTS
SECTION I RENEWAL OF FRANCHISE -------------------------------------- ------------------------- ----- I
SECTION 2 GENERAL REQUIREMENTS ..............................:......... ....................... ..7
SECTION 3 SERVICE: AREA AND LINE EXTENSION POLIO .............................I4
SECTION4 SYSTEM UPGRADE .................................................... ......... .......... .........15
SECTION 5 SYSTEM CONSTRUCTION ....................................... .............................17
SECTION 6 SERVICES AND PROGRAMMING ........................... .............................19
SECTION 7 SUPPORT FOR LOCAL CABLE ACCESS ................ .............................20
SECTION 8 FRANCIUSE TRANSFER ........................................... .............................20
SECTION 9 MISCELLANOUS ......................................................... ............................2I
APPENDICES
A SURETY GUARANTEE (SAMPLE)
AGREEMENT
This Agreement its made and entered into this i 3 t h day of F e b r u a � 996, by
and between the Town of Avon, a municipal corporation of the state of Colorado, and
Cablevision VII, Inc., dba TCI Cablevision of the Rockies, Inc., a subsidiary of Tele-
Communications, Inc.
WITNESSETH
WHEREAS, the Town of Avon, is authorized to grant and renew one or more
non- exclusive revocable Franchises to operate, construct, maintain and reconstruct a
cable television system within the Town, and
WHEREAS, the Town, after due evaluation of Cablevision VII, Inc., dba TCI
Cablevision of the Rockies, Inc., has determined that it is in the best interests of the Town
and its residents to renew its franchise with Cablevision VII, Inc., dba TCI Cablevision of
the Rockies, Inc.
NOW, THEREFORE, the Town of Avon hereby grants to Cablevision VII, Inc.,
dba TCI Cablevision of the Rockies, Inc. a renewal of its cable television franchise in
accordance with the provisions of this agreement and federal laws.
SECTION 1 RENEWAL OF FRANCHISE
1.1 Definitions
For the purpose of this Franchise, the following terms, phrases, words and
abbreviations shall have the meaning given herein. Terms not defined below shall have
the same meaning as in the Cable Act or in the FCC regulations. When not inconsistent
with the context, words used in the present tense include the future tense, words in the
1
plural number include the singular number, and N cords in the singular number include the
plural number:
a "Cable Act" shall mean the Cable Communications and Policy Act of
1984, as amended.
b. "Cable Operator" means any person or group of persons who provides
Cable Service over a Cable System and directly, or through one or more affiliates, ovens a
significant interest in the Cable System or who otherwise controls or is responsible for,
through any arrangement, the management and operation of the Cable System.
C. "Cable Service'* shall mean the one -way transmission to Subscribers of
Video Programming or Other Programming Service, and Subscriber interaction, if any,
which is provided in connection with Video Programming or Other Programming
Service.
d. "Cable System" or "System" shall mean Grantee's facility consisting of a
set of closed transmission paths and associated signal generation, reception and control
equipment, that is designed to provide Cable Service within the Town which includes
Video Programming and which is provided to multiple subscribers within the Town.
Such terms shall not include:
1) A facility that serves only to retransmit the television signals of one or
more television broadcast stations;
2) A facility that serves only Subscribers in one or more multiple unit
dwellings under common ownership, control, or management, unless such facility or
facilities use a 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 Cable Act; 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 in the transmission of Video Programming directly to Subscribers; or
2
4) Any, facilities of an electric utility used solely for operating its electric
utility systerri-
e. "Channel" shall mean a portion of the electromagnetic frequency spectrum
which is used in the Cable System and which is capable of-delivering a television channel
as defined by FCC Rules and Regulations.
f `Council" or "To %m Council"- shall mean the governing body of the Tourn
of Avon.
g_ "Franchise Agreement," "Franchise- or "Agreement" means this
contractual agreement containing the specific provisions of the Franchise granted herein,
including references, specifications, requirements and other related matters.
h. "Franchise .Fee" means any tax, fee or assessment of any kind imposed by
the Town or other governmental entity on a Cable Operator or cable Subscriber, or both,
solely because of its status as such. The term "Franchise Fee" does not include:
(1) Any tax, fee or assessment of general applicability (including any such
tax, fee or assessment imposed on both utilities and Cable Operators or their services, but
not including a tax, fee or assessment which is unduly discriminatory against Cable
Operators or cable subscribers);
(2) Payments which are required by the Franchise to be made by the Cable
Operator during the term of such Franchise for or in support of the use of PEG Access
Facilities;
(3) Capital costs which are required by the Franchise to be incurred by the
Cable Operator for public, educational, or governmental access facilities;
(4) Requirements or charges incidental to the awarding or enforc�Ag of the
Franchise, including payments for bonds, security funds, letters of credit, insurance,
indemnification, penalties, or liquidated damages; or
(5) Any fee imposed under Title 17, United States Code.
3
"Grantee " refers to Cablevision V l'_, inc.. a Colorado corporation di'bla
TCl Cablevision of the Rockies, Inc.
j. "Gross Revenues" means the annual gross receipts received by a Grantee,,
from operations of the Cable System %%thin the Tovm utilizing the public Streets and
rights-of-way for which a Franchise is required in order to deliver such Cable Service,
excluding refundable deposits, rebates or credits, except that any sales, excise or other
taxes or charges collected for direct pass-through to local. state or federal govemmeant.
Franchise Fees shall not be included in the definition of Gross Revenues.
k. "Leased Channel" shall mean any Channel or, part of a Channel. available
for commercial use on a f' a basis by persons or entities other than a Grantee.
'`PEG Access Facilities" means the following:
(1) Channel capacity designated for non - commercial public, educational,
or government use; and
(2) Facilities and equipment for the use of such Channel capacity.
m. "Person" .shall mean an individual, partnership, association, joint stock
company, trust, corporation, or governmental entity.
n. "Other Programming Service" means information that a Cable Operator
makes available to all Subscribers generally.
o. "Service Area" means that portion of the geographical area within the
Town as it is now constituted or may in the future be constituted, which is specified in
Section 3.2 of this Franchise.
p "Street" or "Public Way" shall mean the surface and the space below and
above any public street, 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.
q. "Subscriber" shall mean a lawful recipient of Cable Service provided over
the Cable System.
4
r "To %%,m- is the To%,.m of Avon, Colorado.
s. "Video Programming" means programming provided by, or generally
considered comparable to programming provided by, a television broadcast station.
1.2 Grant
The cable television franchise granted on August 23, 1983, to Heritage
Cablevision, Inc., by Ord: ance 83-3 3 , and now held by the Grantee, is hereby renewed,
subject to the terms and conditions of this Agreement. The Town grants to the Grantee
the authority, right and p ivilege, to construct, reconstruct, operate and maintain a Cable
System within the Streets and Public Ways in the Town as it is now or may in the f more
be constituted.
1.3 Right of Town to Issue and Renew Franchise
The Grantee acknowledges and accepts the present right of the To%%% to issue
and/or renew a Franchise and the Grantee agrees it shall not now or at any time hereafter
challenge any lawful exercise of this right in any local, state or federal court. This is not,
however, a waiver of any constitutional or legal right or privilege on the part of the
Grantee.
1.4 Effective Date of Renewal
The renewal shall not become effective until both parties have signed this
Agreement and seven (7) days have passed since the Town Council approved this
Agreement by resolution. The effective date of this Agreement shall be
. The renewal is further contingent upon the filing by
the Grantee with the Town Clerk, of the executed Franchise Agreement and the required
security fund and insurance certificates within sixty (60) days after the date this
Agreement is executed.
E
1.5 Duration
The teen of this Agreement shall expire on D e c e m b e r 3 t.1 2 010
. at
which time it shall be of no force and effect, unless otherwise renewed. Renewal shall be
in accordance a =rith applicable lau,.
1.6 Franchise As A Contract
A Franchise issued pursuant to the provisions of this Agreement shall be deemed
to constitute a contract between the Grantee and the Toum. The +Grantee and the Town
shall be deemed to be contractually committed to comply with the terms, conditions, and
provisions of this Agreement, and with all rules, orders, regulations, and determinations
applicable to this Agreement which are issued, promulgated, or made pursuant to the
provisions of this Agreement.
1.7 Grantee Subject to Police Power
A Grantee shall, at all times during the life of this Franchise, be subject to all
lawful exercise of police powers
by
the Town.
The (construction, operation, and
maintenance of the System shall
also
be in full
compliance with all other legally
applicable rules and regulations now in effect or hereafter adopted.
1.8 Franchise Not Exclusive
In the event the Town issues any Franchise to any other entity to enter upon or use
the Streets for the purposes of constructing or operating a Cable System or providing
Cable, Service to any part of the Town, the material provisions thereof, considering the
circumstances and the limitations on the regulatory authority of the Town, shall be
reasonably comparable, to those contained herein, in order that one operator not be
granted an unfair competitive advantage over another, and to provide all parties equal
protection under the law. If the Town is prohibited by law, or is otherwise unable to
require that material provisions in any subsequent Franchise are reasonably comparable,
the Town shall, upon the Grantee's request, amend the Franchise of the Grantee so that its
material provisions art_ :easonably comparable to the material provisions of such
subsequent Franchise.
SECTION 2 GE IU%JL REQUIREMENTS
2.1 Governing .Requirements
The Grantee shall comply with all lawful requirements of this Agreement and
applicable law.
2.2 Franchise Fee
The Grantee shall pay to the Town an annual Franchise Fee of five percent (5Q /o)
of Gross Revenues. The Franchise Fee shall be payable quarterly by May 31 for the
quarter ended ,March 31, August 31 for the quarter ended June 30, November 31 for the
quarter ended September 30 and February 28 for the quarter ended December 31. The
period limited for recovering of any Franchise Fee payable or penalties or interest accrued
thereon, shall be five (5) years from the date on which the payment is due to the Town.
2.3 Franchise Fee Report
With each Franchise Fee payment, Grantee shall file with the Town a statement of
revenues showing the Gross Revenues received by the Grantee during the preceding
quarter. The statement of revenues shall be signed and certified by the Grantee to be true
and correct and shall include the amount of Gross Revenues derived from the system and
an itemization of all permissible deductions therefrom. The Grantee shall also submit to
the Town on or before the 60th day following the end of each calendar year and following
the expiration or lawful termination of this Franchise, a written statement signed and
certified by the Grantee to be true and correct showing for the immediately preceding
year or partial year, as applicable, the amount of Gross Revenues derived from the
System and an itemization of all permissible deductions therefrom to arrive at Gross
Revenues. 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
7
payment of Franchise Fees or to audit the Grantee's books and records, as hereinafter set
forth.
Upon five (5) business days prior written notice to the Grantee, and no more
frequently than once each year, the Towm shall have the right to cause an audit to be made
of the books and records of the Grantee with respect to the System to determine
compliance with Section 2.2 above. If the results of such audit show that the Grantee's
statement of Gross Revenues for any period ending not more the three (s) years prior to
the commencement of the audit has been understated by ten (10 %) percent or more, then
the Grantee 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.
2.4 Records Required:
a. Mandatory Records
Franchise.
The Grantee shall at all times maintain:
1) A record of all written complaints received during the term of the
2) Full and complete "as build" maps showing the exact location of the
Cable System, exclusive System electronics and Subscriber service drops.
b. Inspection by Town
Upon reasonable notice to the Grantee of no less than five (5) business
days, the Town shall have the right to inspect all property, maps, and records relating to
the compliance with this Agreement at any time during normal business hours (as defined
by the FCC). All records required by the Town for such inspection shall be made
available within the Toxn, within a reasonable time after the request.
2.5 Insurance
(a) Upon the effective date of renewal, the Grantee shall, at its sole
expense, take out, and maintain during the life of this Agreement; a policy of public,
liability insurance that shall protect the Grantee, as well as the Town, its officials,
8
officers, directors, employees and agents from claims which may arise from operations of
the Cable System, whether such operations be by the Grantee, its officials. officers,
directors, employees and agents, or any subcontractors of Grantee. The liability
insurance shall include, but shall not be limited to, protection against claims arising from
bodily and
personal injury
and damage to
property, resulting from
the
Grantee's
automobiles,
and operations.
The amounts
of insurance shall not be
less
than the .
following:
Single.limit coverage applying to bodily and personal injury
and property damage:
One Million Dollars ($1,000,000)
The liability policy shall include the following:
(1) The policy shall cover on an "occurrence" basis.
(2) The policy shall cover personal injury as well as bodily injury.
(3) The policy shall cover blanket contractual liability subject to the
standard universal exclusions of contractual liability included in
the carrier's standard endorsement as to bodily injuries, personal
injuries and property damage.
(4) Broad form property damage liability shall be afforded.
(5) The Town shall be named an additional insured on the policy.
(6) Coverage shall be primary insurance and no, other insurance
effected by the Town will be called upon to contribute to a loss
under this coverage.
(7) Standard form of cross - liability shall be afforded.
(8) The policy shall not be canceled without thirty (30) days notice of
such cancellation given to the Town.
(b) The Grantee shall submit to the Town, a certificate of insurance
signed by the insurance agent and companies named.
E
(c) An, deductible or self - insured retentions must be declared to the
Town.
2.6 Indemnification
(a) Except as otherwise provided herein, the Grantee shall indemnify,
hold harmless, release and defend the Town, its officers. employees and agents from and
against any and all actions, claims, demands, damages, disability. losses, expenses
including attorney's fees and other defense costs or liabilities of any nature that may be
asserted by any person or entity including the Grantee from any cause whatsoever arising
out of, or in any way connected with, Grantee's operation of the Cable System, including,
but not limited to, the activities of its subcontractors, employees and agents of grantee.
(b) This indemnification obligation is not limited in any way by a
limitation on the. amount or type of damages or compensation payable by or for the
Grantee under workers' compensation, disability or other employee benefit acts,
acceptance of insurance certificates required under this Agreement, or the terms,
applicability or limitations of any insurance held by the Grantee.
(c) The Town does not, and shall not, waive any rights against the
Grantee which it may have by reason of this indemnification, because of the acceptance
by the Town, or the deposit with the Town by the Grantee, of any of the insurance
policies described in this Section.
(d) This indemnification by the Grantee shall apply to all damages and
claims for damages of any kind suffered by reason of Grantee's operation of the Cable
System, regardless of whether or not such insurance policies shall have been determined
to be applicable to any of such damages or claims for damages.
(e) The Grantee shall not be required to indemnify the Town 'for
negligence or misconduct on the part of the Town or its officials, boards, commissions,
agents, or employees (hereinafter "such acts "). The Town shall be responsible for and
shall hold the Grantee harmless from, any damage resulting from any such acts of the
10
Town or its officials, boards, commissions, agents or employees in utilizing any PEG
Access or emergency alert Channels, equipment, or facilities and for any such acts
committed by the Town in connection with -,+vork performed by the Town and permitted
by this Agreement, on or adjacent to the Cable System.
2.7 insurance Prior to Construction
The Grantee shall not commence any System construction work or permit any
subcontractor to commence work until Grantee shall have obtained or cause to be
obtained all insurance required under this Section. Said insurance shall be maintained in
full force and effect until the completion of construction, and approval thereof by the
Town. An endorsement will appear on the policy listing the Town, and shall be given to
the Town prior to construction.
2.8 Workers Compensation insurance
The Grantee shall obtain and maintain workers compensation insurance for all the
Grantee's employees, and, in case any work is sublet, the Grantee shall require any
subcontractor similarly to provide workers compensation insurance for all subcontractors
employees, all in compliance with state laws, and to fully protect the Town from any and
all claims arising out of occurrences on the work. The Grantee hereby indemnifies the
Town for any damage resulting to it from failure of either the Grantee or any
subcontractor to take out and maintain such insurance. The Grantee shall provide the
Town with a certificate of insurance indicating Grantee's workers compensation coverage
prior to commencing reconstruction of the System.
2.9 Security Fund
(a) Within sixty (60) days after the mutual execution of this
Agreement, the Grantee shall establish and provide to Town a security fund, as security
for the faithful performance by the Grantee of all material provision of this Agreement.
The security fund shall consist of a bond, which may be a guarantee -in -lieu of bond and
11
%*.,hich shall be in the amount of One Hundred Thousand -Dollars ($1410.000), essentially
similar to the example provided in Exhibit "A "
(b) Nothing herein shall be deemed a waiver of the normal permit and
bonding, requirements made of all contractors - working dvithin the Town's rights of %Nray.
2.10 Procedure, for - Remedying Franchise Violations
(a) The Town, by action of the Town Manager or a delegate, shall first
notify the Grantee of the violation in writing by personal delivery or registered or
certified mail, and demand convection within a reasonable time, which shall not be less
than thirty (30) days in all cases. If the Grantee fails to correct the violation within the
time prescribed or if the Grantee fails to commence con-ective action within the time
prescribed and diligently remedy such violation thereafter, the Grantee shall then be
given a written notice of not less than twenty (20) days of a public hearing to be held
before the Council. Said notice shall specify the violations alleged to have occurred.
(b) At the public hearing, the Council shall, hear and consider all
relevant evidence, and thereafter render findings and its decision.
(c) In the event the Council finds that the Grantee has corrected the
violation or has diligently commenced correction of such violation after notice thereof
from the Town and is diligently proceeding to fully remedy such violation, or that no
material violation has occurred, the proceedings shall terminate, and no penalty or other
sanction shall be imposed. In determining whether a violation is material, the Town shall
take into consideration the reliability of the evidence of the violation, the nature of the
violation and the damage (if any), caused to the Town thereby, whether, the violation was
chronic, and any justifying or mitigating circumstances and such other matters as the
Town may deem appropriate.
[F.1
(d) In the event the Council finds that a material violation exists and
that the Grantee has not corrected the same in a satisfactory manner or has not diligently
commenced correction of such violation, the !Council may impose liquidated damages of
up to Two Hundred Dollars ($200) per dad, per incident for all material violations,
provided that all violations of a similar nature occurring at the same time shall be
considered one (1) incident. Liquidated damaged shall not be imposed until and unless
the Grantee has failed to cure after the Grantee has been provided notice of default and
the opportunity to cure in accordance with this provision.
2.11 F'orffeiture and 'Termination
In addition to all other rights and powers retained by the Town under this
Franchise, the Town reserves the right to terminate the Franchise and all rights and
privileges of the Grantee in the event the Grantee fails to cure a substantial breach of its
terms and conditions in accordance with Section 2.10 above. A substantial breach by the
Grantee shall include, but shall not be limited to, the following:
(1) A violation of any material provision of this Franchise;
(2) An attempt to evade any material provision of the Franchise; or
(3) Practice of any fraud or deceit upon the Cable System Subscribers or
upon the Town.
The Town shall give written notice to the Grantee of its intent to revoke the Franchise on
the basis of a pattern of noncompliance by the Grantee, including one or more instances
of a violation of any material provision of the Franchise. The notice shall set forth the
exact nature of the breach. The Grantee shall have 90 days from such notice to object in
writing and to state its reasons for such objection. In the event the Town has not received
a response satisfactory from the Grantee, it may then seek termination of the Franchise at
a public meeting. The Town shall cause to be served upon the Grantee, at least 10 days
prior to such public meeting, a written notice specifying the time and place of such
meeting and stating its intent to request such termination.
13
At the designated meeting, -the Town shall give the Grantee an opportunity to state its
position on the matter, after which it shall determine whether or not the Franchise shall be
revoked. if the Grantee is adversely affected by the decision of the Town,, Grantee may
appeal such determination to, an appropriate court, which shall have the power to revietiv
the decision of the Town de novo and to modify or reverse such decision as justice may
require. Such appeal to the appropriate court must be taken within sixty (60) days from
the issuance of the determination of the Town.
The Grantor may, at its sole discretion, take any lawful action which it deems appropriate
to enforce the Grantor's rights under the Permit in lieu of revocation of the Permit.
2.12 Reservation of Rights
The Town and the Grantee reserve all rights that they may possess under the law.
2.13 Processing Costs
(a) During the term of this renewal, if the Grantee
initiates a request for approval regarding the transfer of
this franchise or change in control of the Grantee, the
Grantee shall reimburse the Grantor for all reasonable out -
of pocket costs up to a maximum of $1,000.00 incurred by the
Grantor as part of the Grantor's review and processing of
the request. Any such costs shall not be charged against
any franchise fee due to the Grantor during the term of the
franchise.
(b) To aid in the analysis and resolution of any
future disputed matters relative to the franchise, the
Grantor and the Grantee may, by mutual agreement (both as to
14
whether- to hire and whom to hire) , employ the services of
technical, financial or legal consultants, as mediators.
All reasonable fees of the consultants incurred by the
Grantor and/ or the Grantee in this regard shall be borne
equally.
SECTION 3 SERVICE AREA AND LINE EXTENSION POLICY
3.1 Franchise and Service Area
The System, as constructed as of the date of the passage and final adoption of this.
Franchise, substantially complies with the material provisions hereof. Whenever the
Grantee shall receive a request for service from at least eight (8} residences within one
thousand three hundred twenty (1320) cable - bearing strand feet (one- quarter cable mile)
of its trunk or distribution cable, it shall extend its System to such Subscribers at no cost
to said Subscribers for System extension if technically feasible, and if it will not
adversely affect the operation, financial condition, or market development of the System.'
The grantee shall work with developers to install or cause to be installed , cable
trunk lines and or conduit, if appropriate, at any time open utility trenches are available
and the grantee has received at least ten (10) working days advance ' notice of the
availability of the trenches.
3.2 Subscriber Charges for Extensions of Service
No Subscriber shall be refused service arbitrarily. However, for unusual
circumstances, such as a) a Subscriber requests that his cable drop be located
underground; b) the drop to the Subscriber's home is more than one hundred fifty (150)
feet from distribution cable; or c) a Subscriber's home is not within the Service Area
15
density requirement as suited in subsection 3. I above, then service may be made available
on the basis of capital contribution in aid of construction, including cost of materials,
labor, and easements. For the purpose of determining the amount of capital contribution
in aid of construction to be borne by the Grantee and Subscribers in the area in which
service may be expanded, the Grantee will contribute an amount equal to the construction
and other costs per mile, multiplied by a fraction whose numerator equals the actual
number of residences per one thousand three hundred twenty (1320) cable - bearing strand
feet of its trunks or distribution.cable, and whose denominator equals eight (8) residences.
Subscribers who request service hereunder will bear the remainder of the construction
and other costs on a pro, rata basis. The Grantee may require that the payment of the
capital contribution in aid of construction borne by such potential Subscribers be paid in
advance.
3.3 Commercial Areas
For areas of the Town that are primarily commercial, the Grantee may install, or,
cause to be installed, appropriate conduit at any time that open utility trenches are
available and the Grantee has received at least ten (10) working days advance notice of
the availability of the trenches.
SECTION 4 SYSTEM REBUILD
4.1 Upgrade
(a) The Grantee shall rebuild, as appropriate, the existing Cable System to
provide an operating frequency range of at least Fifty Four Megahertz (54 MHz) to Five
Hundred Fifty Megahertz (550 MHz), within thirty-six (36) months of the effective date
of this Agreement. Completion of construction shall be defined as the ability to provide,
without digital compression, up to seventy -eight (78) Channels of Video Programming to
all customers within the Town, as well as satisfactory completion of any permit- specified
requirements and the public building connections listed in Section 6.3.
16
(b) The rebuild shall utilize a "fiber optics to the Service .area " design in
which optical fiber delivers signals from a central hub to nodes sen ing approximately
five hundred (500) to one thousand (1,000) residences. The nodes shall interface the
optical fiber with coaxial cables which distribute signals to cable Subscribers_
4.2 Future System Modifications
(a) To Eissure.that the Grantees Cable System continues to reflect the
general cable industry state -of- the -art throughout the term of the Franchise, the Tokvn and
the Grantee agree to utilize Cable Systems in the following Colorado communities as a
basis for comparison. The comparison communities (also referred to as the "comparison
group ") shall be:
(1) Brighton, CO
(2) Idaho Springs, CO
(3) Loveland, CO
(4) Canon City, CO
(5) Steamboat Springs, CO
(6) Aspen, CO
(7) Durango, CO
(8) Telluride, CO
(9) Park City, UT
(10) Santa Fe, NM
(b) The Town and the Grantee agree that subsequent to the completion
of the rebuild required in Section 4.1 above, but not sooner than five (5) years after the
effective date of this Agreement, when three (3) or more of the Cable Systems in the
comparison group (also referred to as the "comparison sub- group ") offer Video Services
which exceed the number of Video Services provided on the Grantee's System by ten (10)
services or more, the Town may require the Grantee to provide additional Video Services
to meet or exceed the average provided by the comparison sub - group. The Grantee shall
17
complete. the modification Aithin six (6) months of receipt of the Town's request, subject
to the availability of System Channel capacity.
(c) The Grantor <and the Grantee farther agree that subsequent to the completion
of the rebuild required in Section 4.1 above, when three (3) or more of the cable systems
in the comparision group have activated upstream communications capacity and are
offering interactive residential services, which may include but are not' limited to
telephone and data communications, the Grantor may require the Grantee to activate the
upstream capacity of the Grantee's system. The Grantee shall complete this activation
within twelve (12) months of receipt of the Grantor request.
(d) If an upgrade request pursuant to Section 4.2(b) above is made by the
Town, and the cost of such an upgrade will exceed One Hundred and Seventy Nine
Dollars ($179,00) per subscriber in the towns franchised area, or Three Hundred
Thousand Dollars ($300,000)in total, whichever is greater, the Grantee shall be entitled to
appropriate compensation including, but not necessarily limited to, an extension of the
Franchise term.
SECTION 5 SYSTEM CONSTRUCTION
5.1 Emergency Alert Capability
Within six (6) months of the effective date of this Agreement, the Grantee shall
provide the capability to transmit an emergency alert signal to all participating
Subscribers, in the form of an audio override capability to permit the Town to interrupt
and cablecast an audio message on all Channels simultaneously in the event of disaster or
public emergency. This capability shall continue to be operational during and subsequent
to the System rebuild required by Section 4.1 above. The Town shall only permit
designated persons to operate the emergency override system, and shall take reasonable
18
precautions to prevent any use of the emergency override system in annv manner that
results in inappropriate; use of the emergence override system. or any loss or damage to
the Cable System.
5.2 Standby Power
Concurrent with the System rebuild provided in Section 4.1 above, the Grantee
shall provide standby power generating capacity at the Cable System control center (the
headend) and capable o1' providing at least twelve (12) hours of emergency supply. The
Grantee shall maintain standby power system supplies throughout the coaxial cable
portion of the System, capable of providing emergency power within the standard limits
I f commercially available power supply units.
53 Parental Control Lock
The Grantee shall provide, for sale or lease, to Subscribers, upon request, a
parental control locking device or digital code that permits inhibiting the video and audio
portions of premium Channels.
5.4 Technical Standards
The Federal Communications Commission (FCC) Rules and Regulations, Part 76,
Subpart K (Technical Standards), as amended from time to time, shall apply, to the extent
permitted by applicable law.
5.5 Construction and Installation Work
a. The Tovm shall have the right but not the obligation to inspect all
construction and installation work performed by the Grantee as it shall find necessary to
insure compliance with this Franchise.
b. All construction, installation, and maintenance must comply with all
legally applicable Town ordinances including all uniform codes adopted by the Town and
all legally applicable state and local regulations and good and accepted industry practices.
5.6 Replacement of Paving
19
The Grantee at its o%m cost and expense and in a manner approved by the Town
shall replace and restore all Streets disturbed by the Grantee, 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 Grantee to replace or restore such
Streets %kithin three (3) business days after completion of worm: shall authorize the Town
to cause the proper restoration to be made at the Grantee's expense.
5.7 Alteration of ' Streets By Town
If the Town shall lawfully decide to alter or change the grade of any Street, the
Grantee, 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, Grantee shall be entitled
to the same compensation.
5.8 Tree Trimmiing
The Grantee shall have the authority to trim trees of the Town so as to prevent the
branches of such trees from coming into contact with Grantee's wires, fixtures and cables
and other television conductors. The Town may require all trimming, to be done under its
supervision and direction..
5.9 Temporary Move of Cables
The Grantee 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 Grantee shall have the authority to require
such payment in advance. The Grantee shall be given not less than three (3) business
days advance notice to arrange for such temporary wire changes.
5.10 Status Monitoring
PW
The Grantee shall provide an automatic status
monitoring systems or a functional equivalent when the cable
system has beer, activated for interactive service provided
that such stratus monitoring is technically and economically
proven to the Grantee's satisfaction.
SECTION 6 SERVICES AND PROGRAMMING
6.1 Services and Program 'Mg
The Grantee shall provide the Town with a list of video and other services offered
over the System, which list shall be updated each time a change is made. The Grantee
shall not reduce the number of services without thirty (30) days prior written notification
to the Town and System Subscribers, provided that Grantee has adequate knowledge and
notification, if such a change is caused by external circumstances.
6.2 Leased Channel Service
The Grantee shall offer Leased Channel service on reasonable terms and
conditions and if required by applicable law.
6.3 Public Drops
The following public buildings and schools shall continue to be provided with the
highest level of basic cable service, at no monthly charge, throughout the term of the
franchise:
Building Identification
Town of Avon Municipal Bldg.
Town of Avon Recreation Center
Town of Avon Fire Department
Avon Public Library
Wildridge Fire Department
Headstart
Swift Gulch
Location
400 Benchmark Road
325 Benchmark Road
351 Benchmark Road
200 Benchmark Road
2110 Saddle Ridge Loop
137 Benchmark Road
500 Swift Gulch Road
21
Avon elementary School 0$50 W. Bearer Creek Blvd.
Upon the torn constructing or upon the construction of additional municipal buildings or
schools, %rhich are passed by the grantee's cable system , such buildings or schools %%ill
be provided with the highest level of basic service, at no monthly charge.
SECTION 7 SUPPOI 1 FOR LOCAL CABLE ACCESS
7.1 PEG Access Operating Costs
Upon completion of the system rebuild to Five Hundred Fifty Megahertz (550
MHz) capacity, the Gnmtor may request and the Grantee shall provide up to a total of
two (2) additional channels for PEG use. The Grantor may not submit such a request
unless the PEG channel already being utilized is cablecasting at least twenty (20) hours
per month for a period of six (6) consecutive months, of locally produced first run video
programming on each channel already designated for PEG use, and, fiu-ther, that
additional contemplated PEG programming cannot effectively utilize the existing channel
during the time it is available.
7.2 PROVISION OF PEG ACCESS EQUIPMENT AND FACILITIES.
(a) Upon ninety (90) days written notice to Grantee by
the Town, the Grantee shall provide a PEG Access Equipment
fund up to fifty cents ($.50) per subscriber per month for
individual residential subscribers, and up,to twenty -five
cents ($0.25) per subscriber per month for subscribers
subject to bulk - billing, to be utilized solely for PEG
access equipment and facilities. PEG access equipment and
facilities are defined to include, but not be limited to,
22
data communications terminal equipment as well as video
equipment-
(b) The PEG Access Equipment Fund shall be paid by
Grantee to Grantor quarterly, on a concurrent basis with the
franchise gee. If not expressly prohibited by Federal or
State law or regulations, Grantee may itemize on subscriber
bills the PEG access grant as an "external cost" on
subscriber bills, where the term "external cost" shall be as
described in any applicable Federal Communications
Commission rate regulations. If, at any time in the future,
Federal or State regulations expressly prohibit such an
external cost treatment, then Grantee shall pay to Grantor,
as compensation for the loss of the PEG Access Equipment
Fund, the following amounts:
(1) If the external cost treatment prohibition takes
effect in the years one (1) through seven (7 ) of the
franchise term, the sum of Fifteen Thousand Dollars
($15,000).
(2) If the external cost treatment prohibition takes
effect after the seventh anniversary of the effective date
of the franchise, no compensation shall be required.
23
C) All funds under this grant shall be allocated in
accordance with an operating plan approved by resolution of
the Town Council. Each operating plan shall contain, as a
minimum, the following information:
(1) List of intended PEG users.
(2) Planned type and level of programming
or communications service for each user.
(3) Capital equipment, facilities and
estimated costs required to support the intended uses. This
shall include a survey of existing publicly -owned equipment
that might be available for the intended purposes.
(4) User commitments by the Grantor or a PEG
user to cover operating expenses for at least a three (3)
year period.
(5) An evaluation that the existing public
facilities and equipment are inadequate to`meet the needs of
the operating plan.
7.3 PEG OPERATIONS
The Grantor may negotiate agreements with
neighboring jurisdictions served by the same cable system,
24
educational snsti t.v?t? ons, o,r oz:hers to share operating
expenses as appropriate. The Grantor and the Grantee may
negotiate an agreement for management of EG facilities
and /or channel. capacity, if so desired by the' parties.
7.4 TITLE To PEG EQUIPMENT
The Grantor shall retain title to all PEG
equipment: prc.. ided with funding made available in accordance
with the above_
SE:CT'ION 8 FRANCMSIF, TRANSFER
8.1 Franchise Traxister
a. The Grantee small not Sell. transfer, lease, assign, sublet or dispose of, in
whole or in part, either by forced or involuntary sale, or by ordinary sale, conuact,
consolidation or otherwise, the Franchise or any of the rights or privileges therein
granted, without the prior consent of the Town, which consent shall not be unreasonably
denied or delayed. Any attempt to sell, lease, assign or odxrwise dispose of the
Franchise without the consent of the Town shall be null and void. The granting of a
security interest in any of the Grantee's assets, or any mortgage or other, hypoduw aon,
shall not be considered a transfer for the purposes of this section.., • The transfer of the
Franchise from one wholly -owned subsidiary of a Grantee's ultimate parent company to
another wholly-owned subsidiary of Grantee's pant company shall not require Town
consent.
25
b- The mquuntr=a ntts of ,-s ubs=uo n a_ shA I appR y tte any climage i n co=, of of
tlnc Gm nacee_ In the evema al= tyre Ch-a naee is a or-ar aon -at io n, prim aumhoaumlio n cif the
Town Inanll metgnuca aa$neme oumersNp om control of mmore tt$n an fift p ae+c�nS 250 , 0f
dw vOliangr suck of dhe l mwe. its acgai.md by a pnerwa3 ciT gwup of persons acting aaa
concen. In the event Caaa nw as 2 pwimrship, prn oir a uttpmmau noa of the T o % -,m shall be
required w1wre oamea -nip or Control of amom dun ii- y per =i (50YI"O) of e ership
ii"s aapauutrsd by, a MTw n otr group of prmoans mcttti ng in co nvaa..
C.. For da e purpow of al+eteaunnaanaa g %vbrd= nt sRmaH consent to such cIumge,
aamansfcre or acquisition of control, ahc "I"b%m miy inquire iianw the qualificativam of Che
Immspective U=fam or co ntroI➢a�, pawl y p wsmatt to the Ville A the Cminim Shall
anwnstt ttlace Town in swA inquiry,. The transfaw sW be agnaiim -d to embfish dig it
gsogmsscs alma rwawiaL whoical, and ICI apabalatty to (Dpwac md mum in the Sysumn
and axmp»Iao aaitth all Fra= ,s e rogumments for ttlie wouirula of tcfe um of the
Franchise. The consent offttlw Town to such nansfer swell not be unirem bly ¢maned or
afielkytd.,
26
t�L.ilnare or delay in taansimrtation. lair or the a aanavan'iabiliky of any produca or maternal
necessary to the performance hereof provided than Grantee has exerea-sed all dame care to
prevent the occurrence of such events wfich are reasonabiv foreseeable. incladina
without limitation, actively pursuing alteranati -r-e prodaucLN, materials, labor and means of
transportation. In the event that dery in performance or failure to perform affects only
part of Grantee's capacitor to perform. then the (grantee shall perform to the extent it is
rmeatsonably able to do so. In correcting any causes of nonperfonnance and in effecting
any partial performance, Grantee shall take. all necessary corrective actions as
expeditiously as possible.
9.3 Entire Agreement
This Agreement represents the entire agreement between the pales and no other
agreement or understanding of the parties shall apply.
9.4 Severalbllity
If any provision, swttion, subsection, sentence, clause or phase of this Franchise is
for any reason held to be unconstitutional, void or invalid or for any reason
unenforceable, the validity of the remaining portions of this Franchise shall not be .
affected thereby, it being the intent of the Town Council in adopting and approving trtaas
Franchise that no portion hoof or provision or regulation contained herein shall become
inoperative or fail by reason of any unconstitutionality or invalidity of any other portion,
provision or regulation and all provisions of this Franchise are declared to be severable.
iNT WM4ESS WHEREOF, the Town and the Grantee have, executed . this
Agreement the date and year first above written.
APPROVED AS TO FORM: TOWN Of AV O 1
Date: Feb ry 13'; 996
27
ATT
Towm Clerk
(SEAL)
TCI
LIM
INC.
3 -
d7r -wv- - I*' Nafhe, Title MW E F-madh
SR4L Date:
28
1i•e Yz° Takx- irina,�Yara
111r.1,0 TaraPT7101k
TCI Cablevision off_ tli�e Rockies, Inc -
�KN
February 113, 1996
Tot-m of Avon
Town Manager
Mr. William D. James
P.O. Box 975
Avon, Co 81620
Dear Mr. James:
This letter is to confirm agreement between Cablevision VII,
Inc., dba TCI Cablevision of the Rockies, Inc. (OTCIC-
Rockies ") and the Town of Avon (- Town "). By Ordinance No.
96 -1, the Town grants to TCIC- Rockies a 15 -year renewal of
the franchise agreement under which 'TCIC - Rockies provides
cable television service to the 'Town. TCIC- Rockies hereby
agrees to make capital contributions to the public access
channel, currently Channel S. The capital contribution shall
be in the amount of $10,000, and shall be paid annually
through the 15 -year terms of the franchise, so long as during
such franchise term the Town continues to provice financial
support to the channel.. It is understood and agreed that
TCIC- Rockies's commitment and requirement hereunder shall
cease in the event that the Town withdraws its financial
support of said access channel. It is further understood and
agreed that all amounts paid by Grantee hereunder may be
added to the price of cable services and collected from
Grantee's customers as "external costs" as such term is used
in 47 C.F.R. 76,922 on the date of this agreement. In
Addition, all amounts paid pursuant hereto may be separately
stated on customers' bills as permitted in 47 C.F.R. 76.985.
Very truly yours,
Cablevision VII, Inc.
��
Stanl F. NdcKinzie
Area Manager
Received and accepted this 13th day of
1996, by the to of Avo Co�orado.
February
F1 0 Box 439
0140 Metcalf Road
Avon, Colorado 81520
(970) 949 -3930
FAX (970) 949-9138
An Equa: C pWrWna ?y EnWjoWr
ST/-= OF COLORADO
COUNTY OF EAGLE i Ss
"rOWN OF AVON
1 .1
NOTICE IS HEREBY GIVEN OF A PUBLIC HEAR TING BEFORE THE TOWN
COUNCIL OF THE TOWN OF AVON, COLOR. D6 AT 5:30 P.M. ON THE 13TH
DAY OF FEBRUARY, 1996, AT THE TOWN MUNICIPAL BUILDING FOR THE
PURPOSE OF CONSIDERING TIRE JADOPTION OF ORDINANCE NO. 916-1,
SERIES OF 1995:
AN ORDINANCE GRANTING RENEWAL OF A FRANCHISE TO CABLEVISION
VII, INC. D/B/A TCI CA-tLEVISION OF THE kOCKIE - S, INC., TO
CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEV ' ISION SYSTEM
IN THE TOWN OF AVON, COLORADO; AND APPROVING A CABLE
TELEVISION FRANCHISE AGREEMENT
A cony 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..
'Phis - - notice is given and posted by order of the Town Council of
the Town of Avon, Colorado
Dated this 24th day, of January, 1996-
TO % --OF AVON, COLORADO
BY:
Patty 'Reyhatt, CMC
Town Clerk N
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON
JANUARY 24, 1996;
WAL-MART IN THE LOBBY
CITY MARKET IN THE MAIN LOBBY
COASTAL MART, INC.; AND
AVON MUNICIPAL BUILDING IN THE MAIN LOBBY
h Q . Y.c 6 ' .:L F B'atlih. V— n �:'� —0.YSJ7 A Y 18 ^ `—Z^"7L`tli L 317a,'1 -19 9139;i 2 2
NOTICE OF RENEWAL IMPIRY PROCEEDING
WHEREAS, Cablevision VII, Inc., d /b /a TC1 Cablevision
of the Rockies, Inc. ("Franchisee"), leas notified the Town of
Avon of its desire to renew its franchise, granted pursuant to
ordinance 83 -33, finally adopted August 23, 1953, to construct,
operate and maintain a cable television system in the Town of
Avon;
NOTICE IS HEREBY GIVEN that, at 5:30 P.M. oar February
13, 1996, at the Avon Municipal Building, Avon, Colorado, a
renewal inquiry proceeding shall be held before the Town Council.
Such proceedings shall be held to consider the performance of
Franchisee during the period of its franchise and to determine
whether or not it should be renewed. At such hearing all
interested persons shall be provided an opportunity to be heard.
DONE the 24th �_oi January, 1995.
Patty Neyrt, CHIC
Town ClerkA, Town of Avon