HomeMy WebLinkAboutPACKET Town Board 2012-12-11NOTE: The Town Board reserves the right to consider other appropriate items not available at the time the
agenda was prepared.
The Mission of the Town of Estes Park is to plan and provide reliable,
high-value services for our citizens, visitors, and employees. We take
great pride ensuring and enhancing the quality of life in our community
by being good stewards of public resources and natural setting.
BOARD OF TRUSTEES - TOWN OF ESTES PARK
Tuesday, December 11, 2012
7:00 p.m.
AGENDA
PLEDGE OF ALLEGIANCE.
POLICE DEPARTMENT EMPLOYEE AWARDS.
PUBLIC COMMENT. (Please state your name and address).
TOWN BOARD COMMENTS.
TOWN ADMINISTRATOR REPORT.
1. CONSENT AGENDA:
1. Town Board Minutes dated November 27, 2012, and Town Board Study Session
Minutes dated November 27, 2012.
2. Bills
3. Committee Minutes – None.
4. Estes Valley Board of Adjustment Minutes dated November 6, 2012
(acknowledgement only).
5. Audit Committee Minutes dated August 14, 2012, September 25, 2012 and
October 5, 2012 (acknowledgement only).
2. LIQUOR ITEMS:
1. NEW LIQUOR LICENSE – CABLES ESTES LLC DBA CABLES PUB AND GRILL,
451 S. ST. VRAIN AVENUE, HOTEL AND RESTAURANT LIQUOR LICENSE.
Town Clerk Williamson.
2. TRANSFER OF OWNERSHIP – FROM RAMS HORN DEVELOPMENT COMPANY
LLC DBA MARYS LAKE LODGE TO EP RESORTS INC. DBA MARYS LAKE
LODGE, 2625 MARYS LAKE ROAD. Town Clerk Williamson.
Prepared 11/30/12
* Revised
NOTE: The Town Board reserves the right to consider other appropriate items not available at the time the
agenda was prepared.
3. REPORTS AND DISCUSSION ITEMS:
1. THIRD QUARTER FINANCIAL REPORT. Finance Officer McFarland.
2. BRIEFING ON PERFORMING ART CENTER. Town Staff.
4. PLANNING COMMISSION ITEMS. Items reviewed by Planning Commission or staff for
Town Board Final Action.
1. CONSENT ITEMS:
A. SUBDIVISION
1. PRELIMINARY AND FINAL SUBDIVISION PLATS, Wonderview Village
Townhomes (FKA Wonderview Village Condominiums), 141 Willowstone
Drive; Steve Murphree/Applicant.
5. ACTION ITEMS:
1. TREE BOARD APPOINTMENTS.
2. PARK R-3 SCHOOL DISTRICT SCHOOL RESOURCE OFFICER AGREEMENT.
Chief Kufeld.
3. RESOLUTION #17-12 - 2012 SUPPLEMENTAL BUDGET APPROPRIATIONS.
Finance Officer McFarland.
4. RESOLUTION #18-12 CABLE TELEVISION FRANCHISE AGREEMENT WITH
BAJA. Attorney White.
5. RESOLUTION #20-12 POLE ATTACHMENT AGREEMENT WITH BAJA. Attorney
White.
6. ORDINANCE #01-13 - NATURAL GAS FRANCHISE AGREEMENT WITH PUBLIC
SERVICE COMPANY (XCEL ENERGY) – FIRST READING. Attorney White.
• 31-32-103 C.R.S. requires two reading of an Ordinance for the passage of a
franchise agreement for the operation of a gasworks company. Second
reading January 22, 2013.
7. RESOLUTION #19-12 EXTENSION OF NATURAL GAS FRANCHISE
AGREEMENT PUBLIC SERVICE COMPANY (XCEL ENERGY). Attorney White.
6. ADJOURN.
MEETING CANCELLATION NOTICE:
The Town Board meeting scheduled December 25, 2012 has been cancelled.
Town of Estes Park, Larimer County, Colorado, November 27, 2012
Minutes of a Regular meeting of the Board of Trustees of the Town of
Estes Park, Larimer County, Colorado. Meeting held in the Town Hall in
said Town of Estes Park on the 27th day of November, 2012. Meeting
called to order by Mayor Pinkham.
Present: William C. Pinkham, Mayor
Eric Blackhurst, Mayor Pro Tem
Trustees Mark Elrod
John Ericson
Wendy Koenig
Ron Norris
John Phipps
Also Present: Frank Lancaster, Town Administrator
Lowell Richardson, Assistant Town Administrator
Greg White, Town Attorney
Jackie Williamson, Town Clerk
Absent: None
Mayor Pinkham called the meeting to order at 7:00 p.m. and all desiring to do so,
recited the Pledge of Allegiance.
PUBLIC COMMENTS.
Jim Cope/League of Women Voters stated the deadline for utilizing the grant funds for
recycling containers is June 30, 2013 including full installation. The LWV would need the
support of the Town in order to take advantage of the grant.
Curt Gleaves/ Estes Performance Incorporated (EPIC) member stated EPIC was
incorporated as a non-profit in 2011 and secured the Park Theater Mall property in
March of 2012. Supporters of the Performing Arts (SOPA), a 501 3(c), formed in
December 2006 and EPIC merged in 2012 with SOPA as the surviving entity. SOPA
then changed its name to EPIC. The MOU between SOPA and the Town was dissolved
because SOPA determined a theater at the fairgrounds was not feasible and at the time
requested the FOSH funds.
Bruce Brown/Representative of Salud would like to request the Town consider a path
along Dry Gulch from Hwy 34 to Stonegate Road for the safety of their clients.
Greg Carner/County citizen spoke in opposition of a sidewalk along Dry Gulch stating
there are not enough people that would use the sidewalk to warrant the cost.
Blake Robertson/Town citizen spoke to the distribution of the FOSH funds and
cautioned the Board there could be other valid interruptions of the FOSH agreement
other than the one provided by Attorney White.
TOWN BOARD COMMENTS / LIAISON REPORTS.
Trustee Norris reported Visit Estes Park Board met to finalize their 2013 budget and
held the first meeting of the new Association Forum. The Economic Development Task
Force has completed draft recommendations and would be discussing them with the
Town and other community organizations. The Bear Education Task Force has
established the key messages and target audience, and would meet Friday, November
30, 2012 to develop plans, timeline and responsibilities for information dissemination.
Trustee Koenig stated Sister Cities held their annual meeting and those interested in the
program should contact Jim Thompson with any questions.
Board of Trustees – November 27, 2012 – Page 2
Mayor Pro Tem Blackhurst informed the public the Citizen Information Academy (CIA)
would be held February 6 through March 20, 2013 and encouraged those interested to
complete an application.
Trustee Ericson also encouraged the public to attend the CIA. He thanked the Town
staff for a wonderful tree lighting ceremony.
Mayor Pinkham thanked staff for the efforts in producing the past two weekend’s events
including the tree lighting, parade and fireworks.
TOWN ADMINISTRATOR REPORT.
Update on the past weekend events: an estimated 30,000 attended the parade; the
fireworks were cut short due to the dry conditions; and 740 skaters used the ice rink.
Police Commander Rose reviewed a task list developed after the Woodland Heights fire
including a number of communication issues: applied for and received priority for
governmental emergency telephone (GET) to allow numbers on the list priority during
emergencies; AT&T has agreed to place a temporary tower to increase capacity during
the peak season; coordinate and partner with the RMNP to formalize interagency crisis
communication plan; identified grant opportunity for an AM radio station to broadcast
recorded messages during an emergency; formation of joint communication center at
the Visitor Center; planning Emergency Management training for the staff, local
businesses, and lodges; establish information lines for the local media and social media
and develop talking points during an emergency; and hold a tabletop exercise for staff
to review operations during an emergency.
1. CONSENT AGENDA:
1. Town Board Study Session Minutes dated November 13, 2012, Town Board
Minutes dated November 13, 2012.
2. Bills.
3. Committee Minutes:
a. Community Development/Community Services, November 15, 2012.
4. Estes Valley Planning Commission Minutes dated October 16, 2012
(acknowledgement only).
5. Resolution #13-12 – Schedule public hearing date of December 11, 2012, for
a new Hotel and Restaurant Liquor License Application filed by Cables Estes,
LLC dba Cables Pub & Grill, 451 S. St. Vrain Avenue.
It was moved and seconded (Blackhurst/Koenig) to approve the Consent Agenda
Items and it passed unanimously.
2. PLANNING COMMISSION ITEMS. Items reviewed by Planning Commission or
staff for Town Board Final Action.
1. CONSENT ITEMS:
A. AMENDED PLAT, Lots 1A and 1C of the Replat of a Portion of Lot 4
and All of Lot 1, Stanley Meadows Addition, Estes Park Sanitation,
Applicant. Item continued to the January 22, 2013 meeting.
B. AMENDED PLAT, Tract B, Booth Resubdivision of Lots 2, 3, 4, 5, 7,
and a portion of Lots 1, 6, 8, & 9, Elkhorn Estates, Van Horn
Engineering/Applicant.
Board of Trustees – November 27, 2012 – Page 3
C. LOCATION AND EXTENT REVIEW, Stanley Park Multi-Use Stall
Barns & Multi-Purpose Event Center (MPEC), Lot 1, Little Prospect
Addition (portion of Stanley Park, Norris Design/Applicant.
D. SUPPLEMENTAL CONDOMINIUM MAP #1, Stone Bridge Estates
Condominiums, Phase II, Unit 1147; 1147 Fish Creek Road; Van Horn
Engineering/Applicant.
E. SPECIAL REVIEW 2012-05, A.R.T. Used Vehicle Sales; Lots 16 & 17,
Quasebarth Resubdivision; Blake Hornsby/Applicant.
It was moved and seconded (Blackhurst/Ericson) to approve the Consent
Agenda subject to the findings and conditions recommended by the Estes
Valley Planning Commission, and it passed unanimously.
3. ACTION ITEMS:
1. MUSEUM SENIOR CENTER MASTER PLAN CONTRACT.
In April staff receive direction to develop a Request for Proposal (RFP) for the
Museum and Senior Center Master Plan. An RFP was released and three
proposals were received:
• Anderson Hallas Architects, Golden, CO $80,383
• OZ Architecture, Boulder, CO $83,120 plus survey costs
• T.W. Beck Architects, Estes Park, CO $14,570 plus consultants
at cost plus 15%
The scope of work includes a program development phase and a site master
plan phase. The program phase would study the programming and
demographic needs as it relates to the Museum and the Senior Center for the
next 20 years. The site master plan would determine if the current footprints
would accommodate the anticipated growth in usage and visitation of the
Senior Center and Museum. The plan would result in a final recommendation
for site locations and building uses of the next 20 years. Based on evaluation
of the proposals, reference checks, level of prior experience with museums and
senior centers, public sector experience and degree of on-site involvement, a
stakeholders committee unanimously agreed Anderson Hallas Architects, PC
would provide the best product.
Trustee Ericson questioned the need for a 10% contingency with a consulting
contract. Assistant Town Administrator Richardson stated the contingency
would cover additional action items, desirable products or processes not
covered by the RFP while producing alternative sites.
It was moved and seconded (Norris/Koenig) to approve the consulting
services contract with Hallas Architects for the Museum and Senior
Center Site Master Plan for a not to exceed amount of $89,000, and it
passed unanimously.
2. EMPLOYEE PERFORMANCE REVIEW TIMEFRAME.
The current Town policy requires all employees to be evaluated at the first of
the year and merit increases to be applied at that time; however, the policy has
not been practices for several years. In 2006 an administrative directive
required the evaluation of staff on their anniversary date and to award merit
increases at that time. The Town’s Leadership team considers the evaluation
of employees on their anniversary date a more equitable model and a more
practical method. The anniversary method is a common practice with local
governments, including the County, Loveland and Fort Collins. Staff would
recommend the proposed changes to the Town’s Personal Policy Manual
sections F, G, H, H.1 to allow performance reviews to be completed on the
employee’s anniversary date. It was moved and seconded (Norris/Phipps) to
approve modification to the Town’s Personnel Policy Manual sections F,
G, H and H.1, and it passed unanimously.
Board of Trustees – November 27, 2012 – Page 4
3. PUBLIC HEARING – 2013 BUDGET.
Mayor Pinkham opened the public hearing and Finance Officer McFarland
reviewed the budget adoption process and recapped changes to the budget
that were requested by the Board at the November 13, 2012, Town Board
meeting which are as follows:
a. The $81,000 Museum and Senior Center Master Plan was moved to the
2012 budget in the Community Reinvestment Fund.
b. The Stanley Park Sewer and Civil site work was increased to $350,000 in
the Community Reinvestment fund and affects the fund balance for 2013.
Finance Officer McFarland discussed the Highway User’s Trust Fund. He said
the Fund consists of shared revenue, primarily derived from fuel tax and
vehicle registrations, and estimated that in 2013 the Town will receive
approximately $252,886. Funds will be utilized as part of the STIP overlay on
projects such as street improvements, snow removal and plow blade work,
vehicle and equipment usage, and traffic control items.
Kay Norton Haughey/Town citizen requested the budget contain funds to
address the Reclamation Subdivision issue raised at the last meeting and
funds appropriated to move the water filling station on Fourth Street to
eliminate traffic and increase safety. Steve Nagl/Town citizen would also
support the relocation of the water station to the other side of the fairgrounds.
Lew Larek/Town citizen also requested the Board consider fixing the issues
addressed by Mrs. Norton Haughey in the Reclamation District.
Finance Officer McFarland continued by presenting Resolution #14-12 to set
the mill levy which is required in order to allow the Town to levy and collect
property taxes. For 2013 the mill levy will be set at 1.822 mills, which will yield
approximately $339,960 in property taxes. He said approval of Resolution
#15-12 will adopt the 2013 budget, and Resolution #16-12 appropriates sums
of money to execute the budget and states that revenues within each fund are
sufficient to support expenditures.
Trustee Ericson requested the Community Reinvestment Fund be removed
from the approval of the budget to allow further discussion of the items.
Finance Officer McFarland stated the budget can be adopted as presented
with re-appropriations approved by the Board during 2013.
Trustee Norris requested funds be appropriated for the Dry Gulch Road rebuild
in 2014. Mayor Pro Tem Blackhurst stated it would be premature to add this
commitment until the Board reviews all funding requests and capital projects.
Trustee Norris stated an expectation the Board would discuss in full the capital
needs of the Town early in 2013 in order to set priorities.
It was moved and seconded (Ericson/Phipps) to approve Resolution #14-
12 to set the mill levy, Resolution #15-12 to adopt the 2012 budget, and
Resolution #16-12 to appropriate sums of money, and it passed
unanimously.
4. ORDINANCE #08-12 OPTION FOR EPIC TO PURCHASE TOWN-OWNED
REAL ESTATE FOR PERFORMING ARTS CENTER. Town Attorney White
stated the Estes Performance Incorporated (EPIC) has secured the Park
Theater Mall property to build and operate a performing arts center and related
facilities. In order to design and construct the project, EPIC has requested the
Town sell a portion of the Town’s Riverside parking lot contiguous to the Park
Theater Mall property. The Exclusive Option to Purchase Real Estate would
grant EPIC the option to purchase the property on or before January 31, 2014.
If the Option is exercised, the Town and EPIC would execute the Real Estate
Sales Contract with a purchase price of $1 with EPIC responsible for all closing
costs. The Town would receive a public access easement across the Park
Board of Trustees – November 27, 2012 – Page 5
Theater Mall property; EPIC would design construct and maintain the Riverwalk
across the Park Theater Mall property; and EPIC shall deliver a public access
easement from the western side of the Mall property to Moraine Avenue. EPIC
must complete a number of contingencies in order to close the Real Estate
Sales Contract including: receiving all necessary approvals related to land use;
delivery of the public access easement to the Town for the Riverwalk; delivery
of the public access easement from the western side of the Park Theater Mall
property to Moraine Avenue; negotiation of a Development Agreement between
EPIC and the Town addressing construction of the project; receive approval of
an Amended Plat for the Riverside Subdivision; prior to closing, EPIC shall
acquire title to the Park Theater Mall property; and the Town and EPIC
negotiate an agreement for the reversion of the Town’s property in the event
construction of the Project is not commenced within three years of the date of
closing. The Ordinance would approve the Exclusive Option to Purchase Real
Estate.
Administrator Lancaster stated the item was brought forward at the request of
EPIC. It is staff’s role to make sure items brought forward to the Board contain
complete and accurate information and that staff is not a barrier in the public
accessing the Board. The staff simply developed the information for the
Board’s consideration at the request of EPIC.
Trustee comments: The Board has not discussed the proposed theater since
EPIC submitted application for the height variance due to the quasi-judicial
decision the Board may have to consider in the future, and therefore, does not
have information on the project. The Board requested Town staff provide
additional information on the proposed theater to allow the Board to make an
informed decision. Trustee Elrod stated concern the Town does not have a
policy on the purchase or sale of Town owned property; concerned with the
value of the property to be sold and the value of the access easement; and the
need for additional information before a decision on the sale of land to EPIC.
Curt Gleaves/EPIC Board President stated EPIC requires the Town’s approval
to sell the parking lot in order to move forward with the design review process
and development plan process, which is estimated at a cost of $1 million and
establishes a footprint for the building. He stated alternative layouts have been
reviewed; however, they would not provide a building large enough to meet the
required pro forma. The building requires the proposed width to accommodate
the orchestra pit and loading dock area. He stated a formal appraisal may not
be possible due to a lack of comparables for either the parking lot or the public
access easement. The cost of the public improvements for the Riverwalk and
the public restrooms are estimated at a cost of $500,000 to $750,000 with EPIC
continuing to bear the cost of ongoing maintenance of the facilities.
Those opposing the Option included Tony Paglia/business owner, Hank
Glover/business owner, Heather Stone/Town citizen, Steve Nagl/Town citizen
and business owner, Paula Steige/business owner, Ty Nagl/Town citizen and
business owner, Dave Callahan/Town citizen and business owner, Elaine
Downing/Town citizen, and Marsha Hobert/Town citizen and business owner.
Comments against the Ordinance have been summarized: The Town has a
survey outlining the need for additional parking spaces; parking spaces are
worth a lot to downtown businesses; the proposed theater would occupy all but
41 spaces if the theater was sold out, therefore, leaving very few spaces for
customer parking for all other downtown businesses; the proposed theater
complex would be too large, too tall and look out of place downtown; EPIC has
not made contact with the local businesses and citizens about the
development; Orlandos Steak House above the Wheel would lose the current
views and look at the back of the theater building; as a shuttle bus driver
downtown during the summer it is obvious there would not be adequate parking
for theater goers during the peak season; the creation of the post office parking
lot and dark horse parking lot increased sales tax collection downtown; with 200
parking spaces occupied for 3 hours during a performance there will be little
Board of Trustees – November 27, 2012 – Page 6
turnover of parking space for patron of other businesses; the impact to the area
of the proposed development is unknown; the 20 parking spots lost to the
development would cost the local businesses $500,000 during the 120 days of
the peak season; other businesses such as the Wheel Bar have provided
easements to the Riverwalk at no cost and provided public bathrooms; the
minimum 18 months to construct the proposed theater would affect the
downtown businesses negatively; performing arts should be a park of Estes
Park but not at the expense of the other businesses; the theater at roughly 700
seats is too large for Estes Park and would negatively affect downtown
businesses; the loss of parking spaces with the construction of the Riverwalk
along Wiest caused the businesses to loss income; customers do not want to
walk or park offsite to patronized downtown businesses; the downtown does
not have the infrastructure to accommodate a large theater; additional study
sessions should be held to discuss the issue further before decisions on the
project are considered; concerned the size of the theater may not contain a
stage large enough for the types of performances to be held; and stated
concern the commercial ventures may not be able to support the theater.
Those speaking in favor of the proposed theater development included Charley
Dickey/Town citizen and business owner, Dave Bowers/Town citizen, Stan
Black/EPIC member, Greg Rosener/Town citizen, and Ellie Williams/County
citizen. Comments have been summarized: the project would enhance the
downtown; parking for the project would only be an issue for 90 to 120 days;
the Transportation Visioning Committee identified the need for business owners
and employees to park offsite to help alleviate parking congestion; parking
permits for residential use in the downtown corridor also affects the number of
available parking spaces; there are a number of no cost parking solutions that
would improve parking downtown; the benefit to the town is three fold including
the local businesses, local performers and a broader audience drawn to Estes
Park; the proposed development would create the largest economic
development the town has seen and be the launching pad for addressing the
parking issue; and supports the theater, however, questions if the size is
appropriate.
Stan Black/EPIC member stated the proposed theater complex would make a
performing arts theater possible in Estes Park with the commercial venture
within the building offsetting the cost of the theater operations; replace the
largest anchor building in town at 48 feet high; the building would only be fully
occupied 6 times a year for 3 hours based on the business plan; he stated
EPIC spoke with over 500 people prior to the variance request and was in the
paper 8 times including the Denver Post; the request only allows the project to
move forward and does not approve the project; other building alternatives
were reviewed and determined too expensive or fraught with pitfalls; EPIC
approached the Town to determine the possibility of acquiring the land for the
theater that would include a Riverwalk crossing and public restrooms built and
maintained by EPIC with access 24/7; and this could be the last chance the
town has to acquiring a performing arts theater at no cost to the Town.
Lew Larek/Town citizen stated a performing art theater could be built at the old
elementary location.
Kay Norton Haughey/Town citizen stated the MPEC and Performing Arts
Theater could be placed on the same corner at the fairgrounds if the stall barns
were relocated.
It was moved and seconded (Norris/Phipps) to extend the meeting to 11:00
p.m., and it passed unanimously. The Mayor called for a 10 minute break at
9:50 p.m. and resumed the meeting at 10:00 p.m.
Further Board discussion was heard: Mayor Pro Tem Blackhurst estimates the
value of the parking lot spaces at a value of $450,000 to $925,000. He stated
the Town does not need the easement through the Park Theater Mall. He also
Board of Trustees – November 27, 2012 – Page 7
suggested the Town could entertain discussion of a theater on Lot 4 with its
own parking lot. Trustee Norris stated concern with the lack of facts, the traffic
and the need to consider other locations to make the theater a success.
Trustee Ericson commented the proposed theater complex could be a true
economic driver for Estes Park for the next 20 to 30 years, and would be in
favor of proceeding with the project. Trustee Koenig stated concern with the
parking issue and the lack of information on the project. A vote in favor of
moving forward would lead to $1 million spent by EPIC and set the Board up for
further favorable votes on the project. Trustee Elrod stated he could not come
to a conclusion on the adequacy of the contract with the information provided.
After further discussion, it was moved and seconded (Phipps/Norris) to table
the item to the January 22, 2013 meeting to provide additional public
input and to provide further information, and it passed with Trustees Elrod
and Ericson voting “No”. Staff would present a review of the project to the
Board at an upcoming meeting in order to help the Board understand the scope
of the project before the January meeting. Trustee Elrod requested staff
quantify the value of the parking lot and easement.
5. REAPPOINTMENT OF SCOTT WEBERMEIER TO LOCAL MARKETING
DISTRICT BOARD. The appointments of Scott Webermeier, Town
appointment and Lee Lasson, County appointment, on the LMD Board expire
on December 31, 2012. The positions were advertised jointly through the
Town’s Administrative Services department and interviews were held on
October 17, 2012. An interview panel including Town, County and LMD
representatives interviewed seven qualified candidates. The interview team
recommends the reappointment of Scott Webermeier for an additional 4-year
term. It was moved and seconded (Norris/Phipps) to reappoint Scott
Webermeier to the Local Marketing District Board for a 4-year term
effective January 1, 2013 through December 31, 2016, and it passed with
Trustee Ericson voting “No” and Trustee Koenig abstaining.
6. LOCAL MARKETING DISTRICT INTERGOVERNMENTAL AGREEMENT.
Assistant Town Administrator Richardson presented the proposed IGA for 2013
between the Town of Estes Park and the Local Marketing District (LMD). The
2013 IGA contains the following components: LMD shall pay for all costs
associated with Town of Estes Park benefits offered to LMD employees;
coordination of regularly scheduled meeting between both entities; the Town’s
Visitor Center would deliver guest services and provide recommendations
regarding operations and service delivery; sale of items at the Town’s Visitor
Center and advertising sales by the Town; allow the LMD to use photos owned
by the Town and collected for marketing and promotion purposes; and an audit
of the LMD if required shall be paid for by the LMD. The IGA has been
reviewed and approved by the LMD Board. It was moved and seconded
(Koenig/Elrod) to approve the 2013 Intergovernmental Agreement with the
Estes Park Local Marketing District, and it passed unanimously.
7. WATER CONSERVATION PLAN.
Director Bergsten stated the water conservation plan was reviewed by the
Public Safety, Utilities and Public Works Committee and presented to and
adopted by the Town Board in April 2012. The Colorado Water Conservation
Board requested the document be open for public review and comment for 60
days prior to final Board approval. The posted 60 day period ended November
19th and no public comment was received.
Kay Norton Haughey/Town citizen questioned if the plan contains provisions for
the recapture of grey water for other uses such as landscaping. Attorney White
commented the Town does not have a rainwater catchment right and the water
augmentation would have to be reviewed because at this time the Town has
the right to use water once and then release it.
Board of Trustees – November 27, 2012 – Page 8
After further discussion, it was moved and seconded (Koenig/Norris) to
approve the Water Conversation Plan, and it passed unanimously.
8. TEMPORARY POLICY TO EXTEND TIMEFRAMES FOR BUILDING
PERMITS AND APPLICATIONS. Director Chilcott stated in 2010 and 2011 the
Board approved a temporary policy extending application and building permit
dates due to the economic downturn. Without the extension, building permits
are valid for 18 month from the date of issuance. The current extension expires
on December 31, 2012. Staff has identified 500 open permits and has begun to
contact homeowners and contractors to close permits. During the past 30 days
150 permits have been closed. Staff recommends extending the permits
through March 31, 2013 with staff continuing to proactively reach out to
property owners and contractors to close permits. In cases where permits were
applied for, but not paid for, applicants have incurred and are responsible for
fees. Staff recommends waiving the plan review fees, if the applicant chooses
not to proceed with the permitted work. If approved by the Board, staff would
provide monthly updates on the status of open permits at the Community
Development/Community Services Committee meeting. It was moved and
seconded (Koenig/Ericson) to approve the extension of open building
permits from December 31, 2012 to March 31, 2013, and it passed
unanimously.
Mayor Pinkham whereupon he adjourned the meeting at 10:55 p.m.
William C. Pinkham, Mayor
Jackie Williamson, Town Clerk
Town of Estes Park, Larimer County, Colorado, November 27,
2012
Minutes of a Study Session meeting of the TOWN BOARD of the Town
of Estes Park, Larimer County, Colorado. Meeting held at Town Hall
Rooms 202 & 203 in said Town of Estes Park on the 27th day of
November, 2012.
Board: Mayor Pinkham, Mayor Pro Tem Blackhurst, Trustees, Elrod,
Ericson, Koenig, Norris and Phipps
Attending: All
Also Attending: Town Administrator Lancaster, Assistant Town Administrator
Richardson, Attorney White, and Town Clerk Williamson
Absent: None
Mayor Pinkham called the meeting to order at 4:30 p.m.
FOSH FUNDING DISTRIBUTION
Assistant Town Administrator Richardson presented the background of the Friends of
Stanley Hall (FOSH) funds, stating the Town has served as the fiduciary for the funds
through a written agreement since May 14, 2002. The original agreement was amended
on May 6, 2006 and provided the Town with five years to determine feasibility of a
performing arts theater. If the Town determined a theater was not feasible, the funds
were to be disbursed to any Estes Valley non-profit organization whose purpose
involves the performing arts. In March of 2012, the Town of Estes Park received written
notice from the Supporters of the Performing Arts (SOPA) that a theater at Stanley Park
was not feasible and dissolved the MOU with the Town related to the property and
infrastructure improvements.
Town staff has been developing a method for which to distribute the FOSH funds with
the understanding a theater is not feasible. Staff presented an announcement letter and
application outline modeled after a standardized template used by the Federal
Government for developing grants. Staff would complete the development of a final
application with input from the Board for the distribution of the FOSH funds. Items to be
discussed include the timing of the announcement, cultural arts and performing arts
language contained within the original agreement versus the language contained in the
amended agreement related to performing arts only, composition of the selection
committee; and whether the Board would like a final report on those applications that
are funded.
Attorney White clarified the MOU between the Town and SOPA contained a
commitment of the FOSH funds for the construction of a performing arts theater at
Stanley Park. When the agreement was terminated in March, so to was the
commitment of the FOSH funds to SOPA.
Trustee Elrod stated when the agreement was terminated in March it was not clear at
that time there was another entity working on building the theater. He suggested the
Board should discuss the feasibility of the current entity Estes Performance
Incorporated (EPIC) in completing the construction of a performing arts theater.
Mayor Pro Tem Blackhurst stated the Town has determined multiple times, with a
number of locations, that the theater is not feasible. He commented the Town has not
received a request by EPIC for the FOSH funds.
Trustee Koenig voiced the Town should follow the processes outlined in the original
agreement, and would not favor rewriting the agreement because FOSH no longer
exists. She stated the announcement mentions both cultural arts and performing arts
while the agreement focuses on performing arts, and therefore, the Town should honor
the original intent of the agreement and remove cultural arts. There was consensus
amongst the Board the funds should be distributed to performing arts organizations.
Trustee Norris agrees with the process for distributing the funds; however, he requested
the process identify specific criteria for making the decision on how the funds are
distributed.
The Board stated a formal report on how the funds were distributed would not be
necessary; however, an overview on how the funds were used by the entities would be
useful. It was suggested the review committee may contain two Board members, two
community members and two members from outside the community with knowledge on
performing arts. The experience base component of the application would be
broadened to allow entities such as EPIC to apply.
The Board would discuss the feasibility of a performing arts theater and the distribution
of FOSH funds at the March 12, 2013 Board meeting.
TOWN COMMITTEES AND TOWN BOARD ASSIGNMENT.
Administrator Lancaster presented the policies for the Board’s review. Assignments are
made at the second meeting in April after on even years after the new Board is seated
and should be reflected in the policy. Trustee Ericson suggested members of the Town
Board Committees (CDCS and PUP) should be the liaison to the perspective groups
such as Planning Commission, Senior Center, etc.
Town Committees
The Board questioned if a recognition party should be included in the policy, and
suggested the text be changed to state volunteers shall be recognized. With regard to
recruitment, the Town Clerk should be changed to Administrative Services.
USE OF MAYOR CONTINGENCY FUND.
Trustee Elrod stated there should be a policy on how the funds should be used and who
has access to the funds. He suggested perhaps each Trustee should be given a
contingency fund. The Board discussed the need for a procedure for reviewing each
request to determine appropriateness. Town Administrator Lancaster would investigate
what polices other municipalities use locally and nationally and bring results forward for
the Board’s consideration in developing a policy.
FUTURE AGENDA ITEMS.
The Board requested training on development processes such as location and extent
review, quasi-judicial versus legislative, and the Board’s roles and processes related to
each.
Other items of interest include: Strategic planning, capital planning and management,
Open meeting law and communication, Town Board training, horse drawn carriages
downtown, and transportation committee role and mission.
MISCELLANEOUS
Attorney White reviewed the quasi-judicial versus legislative issues related to the
location and extent review process for the MPEC and stall barn, and items related to the
Performing Art Theater such as the land purchase – legislative and land use decisions –
quasi-judicial. He stated with the theater it is difficult to separate out the discussions,
therefore, he recommends the Board consider the project quasi-judicial for all matters
as it relates to exparte communication.
There being no further business, Mayor Pinkham adjourned the meeting at 6:42 p.m.
Jackie Williamson, Town Clerk
RECORD OF PROCEEDINGS
Regular Meeting of the Estes Valley Board of Adjustment
November 6, 2012, 9:00 a.m.
Board Room, Estes Park Town Hall
Board: Chair John Lynch, Members Bob McCreery, Wayne Newsom, Jeff
Moreau, and Pete Smith; Alternate Member Chris Christian
Attending: Chair Lynch, Members McCreery, Newsom, and Moreau
Also Attending: Planner Shirk, Recording Secretary Thompson
Absent: Member Smith
Chair Lynch called the meeting to order at 9:00 a.m.
The following minutes reflect the order of the agenda and not necessarily the chronological
sequence. There were three people in attendance.
1. PUBLIC COMMENT
None.
2. CONSENT
Approval of minutes of the October 2, 2012 meeting.
It was moved and seconded (Newsom/Moreau ) to approve the Consent Agenda as
presented and the motion passed unanimously with one absent.
3. LOT 1, DEVILLE SUBDIVISION, 540 S. St. Vrain Avenue
Chair Lynch recused himself and left the dais. Member Newsom acted as Chair for this
portion of the meeting. A quorum was present with three members at the dais.
Planner Shirk reviewed the staff report. The applicant, O’Reilly Automotive Stores, Inc.
has requested variance from Estes Valley Development Code (EVDC) Section 4.4, Table
4-5, which requires buildings and accessory structures be setback a minimum of 15 feet
from the side property line in the CO–Commercial Outlying zone district. The request was
to allow an 8-foot side setback to construct a proposed retail auto parts business.
Planner Shirk explained the EVDC typically requires the loading area be separate from
the parking area. The applicant proposed to use the east side of the lots/parking area to
also serve as a loading zone for the delivery truck. He stated deliveries would be made
when the store was closed. Planner Shirk stated the EVDC also requires that the front
door of businesses fronting arterial streets be oriented toward that arterial street. It was
unlikely that the Colorado Department of Transportation (CDOT) would grant a front
entrance on S. St. Vrain Avenue; therefore, the applicant has proposed making the
building entrance on the south side of the building, facing Graves Avenue.
Planner Shirk stated a development application should be submitted by the applicant
within the next couple of months. That application would address parking, landscaping,
trash enclosures, stormwater drainage, etc.
Planner Shirk stated the variance application was forwarded to all affected agencies and
adjacent property owners. No comments were received from neighbors. No significant
issues or concerns were expressed by reviewing staff relative to code compliance or the
provision of public services.
Staff found the following:
1. This request complies with review criteria set forth in Section 3.6.C of the Estes
Valley Development Code.
2. Special circumstances exist and practical difficulty may result from strict
compliance with Code standards.
3. The variance is not substantial.
RECORD OF PROCEEDINGS
Estes Valley Board of Adjustment 2
November 6, 2012
4. The essential character of the neighborhood would not be substantially altered, nor
would adjoining properties suffer a substantial detriment.
5. This request has been submitted to all applicable reviewing agency staff for
consideration and comment. No significant issues or concerns were expressed by
reviewing staff relative to code compliance or the provision of public services.
6. The variance would not adversely affect the delivery of public services.
7. The applicant is notified that a stormwater management plan will be required with
development plan approval, and will be subject to review and approval of the
Public Works Department.
8. Electric connections will need to meet NEC/NESC clearance requirements or be
placed below ground, at the applicant’s expense.
9. The variance represents the least deviation from the regulations that will afford
relief.
10. The submitted conditions or circumstances affecting the property are not of so
general or recurrent a nature as to make reasonable practicable the formulation of
a general regulation for such conditions or situations.
11. Failure to apply for a building permit and commence construction or action with
regard to the variance approval within one (1) year of receiving approval of the
variance shall automatically render the decision of the BOA null and void.
Planner Shirk stated staff recommended approval of the requested variance with
conditions listed below.
Public Comment
Mark Wold/Applicant stated staff was very cooperative and helpful in providing information
for the setback variance. He stated they are proposing the largest parking area possible
to allow for delivery truck access.
Staff and Board Discussion
None.
Conditions
1. Compliance with the site plan and building design, as approved by the Board of
Adjustment, with modifications as necessary during review process (parking,
landscaping, trash enclosure, etc.)
2. Setback Certificate. Prior to final inspection, a registered land surveyor shall
provide to the Community Development Department a signed and stamped
certificate that specifically verifies that the structure complies with the approved
variance, and shall include a specific reference to the distance to property lines.
Staff recommends a surveyor set survey stakes for foundation forms to ensure
compliance with the approved variance.
3. Trash enclosure shall be relocated to maintain at least an 8-foot side yard setback,
and shall be screened as required by the development code.
It was moved and seconded (McCreery/Moreau ) to approve the variance request as
presented with the findings and conditions recommended by staff and the motion
passed unanimously with one absent and one recusal.
Chair Lynch returned to the dais.
4. LOT 1, LITTLE PROSPECT ADDITION (Portion of Stanley Park), TBD Rooftop Way
Planner Shirk reviewed the staff report. The applicant has requested variances to Section
4.4, Table 4-5 Maximum Height to allow two new public facilities to exceed the maximum
allowed height of 30 feet. The public facilities are the multi-use stall barns and the multi-
purpose event center (MPEC) to be located at Stanley Park Fairgrounds.
Planner Shirk reviewed the process required for a project of this magnitude. He stated the
Location and Extent/Special Review portion of the project was scheduled for the
November 20th Planning Commission meeting. The Planning Commission would be the
recommending body for the Town Board, who was scheduled to review the project on
November 27, 2012. If there was Town Board opposition to the Planning Commission
RECORD OF PROCEEDINGS
Estes Valley Board of Adjustment 3
November 6, 2012
recommendation, a majority vote of the entire Town Board would be required to overturn
the recommendation.
Planner Shirk stated a Master Plan for Stanley Park Fairgrounds was developed six years
ago, which reviewed basic orientations of land uses. In 2006, it was anticipated there may
be additional development on the property. The Master Plan showed barn structures on
the west side, though the design was slightly different. With the proposed construction of
new stall barns, some of the existing stall barns on the east side would be removed. The
goal is to eventually replace all of the existing stall barns. Planner Shirk stated the
Colorado Department of Transportation was interested in a traffic study due to the
anticipated increased use of the fairgrounds.
Planner Shirk stated the roof of the proposed stall barns would comply with the 30-foot
height limit. Three proposed cupolas on top of the roof would be less than one foot above
the maximum height limit. The designer was proposing a clerestory (light well)
incorporated into the roof of the MPEC which would be 37 feet 6 inches tall from grade.
The primary roof of the MPEC would comply with the 30-foot height limit.
Planner Shirk stated, if approved, the variance would be valid for one year. If the building
permit was not pulled within one year, the applicant would need to reapply for another
variance. The Location and Extent review, if approved, would be good for three years.
Member McCreery was concerned that the variance application was submitted prior to the
approval by the Town Board. Planner Shirk stated the variance was the first step in the
review process. If approved by the Town Board, the plan would be to have the stall barns
built and open prior to next summer. The MPEC was still somewhat undefined. He
explained the Board had the option to vote only on the stall barns and leave the MPEC
until the design is finalized. Member Newsom stated citizens were always sensitive to
height variances. Planner Shirk stated the cupolas on the stall barn were strictly aesthetic,
intended to break up the long roof line.
In reviewing the application, staff found the following:
1. This request complies with review criteria set forth in Section 3.6.C of the Estes
Valley Development Code.
2. Special circumstances exist and practical difficulty may result from strict
compliance with Code standards.
3. The variance is not substantial.
4. The essential character of the neighborhood would not be substantially altered, nor
would adjoining properties suffer a substantial detriment.
5. The variance would not adversely affect the delivery of public services.
6. The variance represents the least deviation from the regulations that will afford
relief.
7. This request has been submitted to all applicable reviewing agency staff for
consideration and comment. No significant issues or concerns were expressed by
reviewing staff relative to code compliance or the provision of public services.
8. The submitted conditions or circumstances affecting the property are not of so
general or recurrent a nature as to make reasonably practicable the formulation of
a general regulation for such conditions or situations.
9. Failure to apply for a building permit and commence construction or action with
regard to the variance approval within one (1) year of receiving approval of the
variance shall automatically render the decision of the BOA null and void. The
Statement of Intent includes a request for a 5-year approval period, though the
Board cannot approve such request.
Planner Shirk stated staff recommended approval of the requested variances, with
conditions of approval listed below.
Public Comment
Elena Scott/applicant presented the plans for the stall barns and MPEC. She stated the
project goals are to remove the dated stall barns on the east side (200 stalls) and to
eventually have a 500 stall capacity (100 more than existing). She stated it was easy to
exceed the 30 foot height on large buildings. The idea for new stall barns had been
contemplated for years, and this particular project began in July, 2012. She stated she
RECORD OF PROCEEDINGS
Estes Valley Board of Adjustment 4
November 6, 2012
met with the Town Board on three separate occasions, and attended a neighborhood
meeting on July 23, 2012. Ms. Scott stated that work could begin shortly after approval by
the Town Board.
Ms. Scott stated multi-use buildings would attract more people year-round, and could
accommodate trade shows, conferences, fairs, etc. A high quality building would attract a
high echelon of equestrian events. The proposed stall barns would include public
restrooms on the west side of the building. The slope of the land is a 10-foot drop from
south to north, and the detention pond would be located on the northwest corner of
parcel. To keep the barns as far away from neighbors as possible, the design would
include a large landscape buffer and additional parking spaces. She stated the design
guidelines included creating cohesive architecture and improved design aesthetics,
following the same guidelines as the grandstands. The plan would also include enhanced
walkways to access the buildings. The east side of the building would have a porch that
could be used by vendors. Ms. Scott stated the stall barns and MPEC would be designed
so they could be connected, if desired.
Ms. Scott stated the existing grade of the proposed stall barns would make the top of the
roof 27’ 2 3/4'”, with the cupolas 30’ 11” above grade. The variance request is for 11
inches above finished grade.
Ms. Scott stated the MPEC was proposed to be over 35,000 square feet in size. This
building would have the capacity to accommodate concerts, tournaments, conferences,
etc. The majority of the building would comply with the 30 foot height limit. The clerestory
(light well) portion would extend beyond the 30 foot limit, to 37’ 6” above natural grade.
The clerestory would allow natural lighting and ventilation into the building, and contribute
to the overall aesthetics. She stated the height variance would be most noticeable from
the east side of the building.
Member McCreery was curious as to why the new stall barns could not be placed on the
east side of the parcel, and Ms. Scott answered the slope of the land was too great to
construct a large building. Member McCreery was concerned about the odor in the
neighborhood to the west. Ms. Scott stated the new stalls would be enclosed, and waste
would be removed frequently to lessen the odor. She noted the site had been a fairground
for decades, and the designers were trying to make it appealing to everyone. Member
Newsom stated this was a community project, and that the height variance request would
make the buildings more attractive, would encourage more use of the land, and would
help stimulate the town’s economy.
Kay Norton-Haughey/adjacent property owner stated she attended the neighborhood
meeting and realized the fairgrounds are an important part of the Estes Park community.
She canvassed the neighborhood and other citizens and heard good support for the stall
barns. Her concern was the odor and 4th Street traffic that would come with added
events. She stated the additional development would alter the neighborhood, impact the
quality of life, and lower property values in that area. She suggested the Board of
Adjustment table the issue until the Planning Commission was able to review the
development plan application. Member Newsom clarified that the Board of Adjustment
was reviewing only the height variance, and encouraged Ms. Norton-Haughey to attend
the Planning Commission and Town Board meetings.
Staff and Member Discussion
Member Newsom stated that if the location of the stall barns changed, it would still
probably exceed the 30-foot height limit, and they would still be designed with the cupolas
and clerestory. Chair Lynch was supportive of the west side location. Member McCreery
stated he would prefer a very significant barrier between the barns and the neighborhood,
such as many trees and shrubs. He expressed concern for the neighbors adjacent to the
fairgrounds.
Conditions
1. Compliance with the site plan and building design, as approved by the Board of
Adjustment, with modifications as necessary during review process.
RECORD OF PROCEEDINGS
Estes Valley Board of Adjustment 5
November 6, 2012
2. Setback Certificate. Prior to final inspection, a registered land surveyor shall
provide to the Community Development Department a signed and stamped
certificate that specifically verifies that the structure complies with the approved
variance, and shall include a specific reference to the distance to property lines.
Staff recommends a surveyor set survey stakes for foundation forms to ensure
compliance with the approved variance.
It was moved and seconded (McCreery/Moreau) to approve the variance requests as
presented with the findings and conditions recommended by staff and the motion
passed unanimously with one absent.
There being no further business, Chair Lynch adjourned the meeting at 10:15 a.m.
___________________________________
John Lynch, Chair
___________________________________
Karen Thompson, Recording Secretary
Town of Estes Park, Larimer County, Colorado, August 14, 2012
Minutes of a meeting of the AUDIT COMMITTEE of the Town of Estes
Park, Larimer County, Colorado. Meeting held in the Municipal Building
in said Town of Estes Park on the 14th day of August, 2012.
Committee: Mayor Pinkham, Trustee Ericson, Town Administrator
Lancaster, Assistant Town Administrator Richardson,
Finance Officer McFarland
Attending: Mayor Pinkham, Trustee Ericson, Town Administrator
Lancaster, Assistant Town Administrator Richardson,
Finance Officer McFarland, and Assistant Finance Officer
McDougall
Absent: None
Chair Ericson called the meeting to order at 9:00 a.m.
DISCUSSION OF RFP OF AUDITING FIRM
Swanhorst & Company has completed their 5-year agreement with the Town for
auditing services. Finance Officer McFarland prepared the RFP for the 2012-16 CAFRs
and other auditing services (see attached). The RFP was discussed and approved, and
modifications were made per Committee suggestion. The RFP schedule calls for
responses to be submitted to the Town by Friday September 7th, 2012. Finance Officer
McFarland will distribute the responses to the Committee for perusal. At that point,
either 1) a finalist will be selected, or 2) a group of finalists will be selected for
interviews.
OTHER NEW BUSINESS
There was no other new business.
There being no further business, Chair Ericson adjourned the meeting at 9:30 a.m.
Steve McFarland, Finance Officer
Town of Estes Park, Larimer County, Colorado, September 25th,
2012
Minutes of a meeting of the AUDIT COMMITTEE of the Town of Estes
Park, Larimer County, Colorado. Meeting held in the Municipal Building
in said Town of Estes Park on the 25th day of September, 2012.
Committee: Mayor Pinkham, Trustee Ericson, Town Administrator
Lancaster, Assistant Town Administrator Richardson,
Finance Officer McFarland
Attending: Mayor Pinkham, Trustee Ericson, Town Administrator
Lancaster, Assistant Town Administrator Richardson,
Finance Officer McFarland, and Assistant Finance Officer
McDougall
Absent: None
Chair Ericson called the meeting to order at 3:00 p.m.
DISCUSSION OF RFP OF AUDITING FIRM
The Town received 7 responses to its RFP for Auditing Services. The responding firms
were:
1. Anton Collins Mitchell
2. Clifton Larson Allen
3. Swanhorst & Company
4. Logan & Associates
5. Rubin Brown
6. Eide Bailly
7. McGee, Hearne & Paiz
The firm BKD responded with a letter that declined to offer a proposal.
The Committee graded the proposals with a criteria/rating sheet (see attached) that was
in accordance with the stated criteria in the RFP.
The Committee selected as finalists the firms Anton-Collins-Mitchell, Rubin Brown, and
Clifton-Larson-Allen. A subcommittee of Ericson, McFarland, and Richardson was
formed to interview the finalists and to report back to the Committee with a
recommendation to bring forward to Town Board.
Audit Committee – September 25, 2012 – Page 2
OTHER NEW BUSINESS
There was no other new business.
There being no further business, Chair Ericson adjourned the meeting at 4:00 p.m.
Steve McFarland, Finance Officer
Town of Estes Park, Larimer County, Colorado, October 5th,
2012
Minutes of a meeting of the AUDIT COMMITTEE of the Town of Estes
Park, Larimer County, Colorado. Meeting held in the Municipal Building
in said Town of Estes Park on the 5th day of October 5th, 2012.
Committee: Mayor Pinkham, Trustee Ericson, Town Administrator
Lancaster, Assistant Town Administrator Richardson,
Finance Officer McFarland
Attending: Mayor Pinkham, Trustee Ericson, Town Administrator
Lancaster, Assistant Town Administrator Richardson,
Finance Officer McFarland
Absent: Assistant Finance Officer McDougall
Chair Ericson called the meeting to order at 12:00 p.m.
DISCUSSION OF RFP OF AUDITING FIRM
The subcommittee of Ericson, McFarland and Richardson interviewed the following
Auditing firm finalists on the afternoon of Wednesday October 3rd, 2012:
1. Anton Collins Mitchell
2. Clifton Larson Allen
3. Rubin Brown
Based upon the interviews, the subcommittee unanimously agreed to recommend the
firm of Clifton-Larson-Allen. The recommendation was approved by the Audit
Committee, and the recommendation is to be delivered to Town Board for discussion –
approval, at the October 23rd, 2012, Town Board meeting.
OTHER NEW BUSINESS
There was no other new business.
There being no further business, Chair Ericson adjourned the meeting at 12:30 p.m.
Steve McFarland, Finance Officer
Page 1
TOWN CLERK Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Jackie Williamson, Town Clerk
Date: December 11, 2012
RE: Liquor Licensing: New Hotel and Restaurant Liquor License Application
for Cables Estes LLC dba Cables Pub & Grill, 451 S. St. Vrain Avenue
Background:
An application for a new Hotel and Restaurant Liquor license was filed with the Town
Clerk’s office on November 8, 2012, by Cables Estes LLC dba Cables Pub & Grill. This
application was sent to the Liquor Division for a concurrent review in order to have the
license approved by the State at the same time as the Town. This will enable the new
restaurant to begin the sale of alcohol as soon as possible.
All necessary paperwork and fees were submitted and the applicant was made aware of
the TIPS training requirement. Please see the attached hearing procedure for more
information.
Budget:
None.
Staff Recommendation:
None.
Sample Motion:
Finding.
The Board of Trustees finds that the reasonable requirements of the neighborhood
are/are not met by the present liquor outlets in the neighborhood and that the desires of
the adult inhabitants are/are not for the granting of this liquor license.
Motion.
I move to approve/deny the new Hotel and Restaurant Liquor License for Cables Pub &
Grill.
1
July 2002
PROCEDURE FOR HEARING ON APPLICATION
NEW LIQUOR LICENSE
1. MAYOR.
The next order of business will be the public hearing on the application of Cables
Estes, LLC dba CABLES PUB & GRILL for a New Hotel and Restaurant Liquor
License located at 451 S. St. Vrain Avenue.
At this hearing, the Board of Trustees shall consider the facts and evidence
determined as a result of its investigation, as well as any other facts, the reasonable
requirements of the neighborhood for the type of license for which application has
been made, the desires of the adult inhabitants, the number, type and availability of
liquor outlets located in or near the neighborhood under consideration, and any other
pertinent matters affecting the qualifications of the applicant for the conduct of the type
of business proposed.
OPEN PUBLIC HEARING
2. TOWN CLERK. Will present the application and confirm the following:
The application was filed November 8, 2012.
At a meeting of the Board of Trustees on November 27, 2012, the public hearing
was set for 7:00 p.m. on Tuesday, December 11, 2012.
The neighborhood boundaries for the purpose of this application and hearing
were established to be 4.7 miles.
The Town has received all necessary fees and hearing costs.
The applicant is filing as a Limited Liability Company.
The property is zoned CO which allows this type of business as a permitted
use.
The notice of hearing was published on November 30, 2012 .
The premises was posted on November 28, 2012 .
2
There is a police report with regard to the investigation of the applicant.
Status of T.I.P.S. Training:
X Unscheduled ____ Scheduled Completed
There is a map indicating all liquor outlets presently in the Town of Estes Park
available upon request.
3. APPLICANT.
The applicants will be allowed to state their case and present any evidence they
wish to support the application.
4. OPPONENTS.
The opponents will be given an opportunity to state their case and present any
evidence in opposition to the application.
The applicant will be allowed a rebuttal limited to the evidence presented by the
opponents. No new evidence may be submitted.
5. MAYOR.
Ask the Town Clerk whether any communications have been received in regard
to the application, and if so, to read all communication.
Indicate that all evidence presented will be accepted as part of the record.
Ask the Board of Trustees if there are any questions of any person speaking at
any time during the course of this hearing.
Declare the public hearing closed.
6. SUGGESTED MOTION:
Finding. The Board of Trustees finds that the reasonable requirements of the
neighborhood are/are not met by the present liquor outlets in the neighborhood and
that the desires of the adult inhabitants are/are not for the granting of this liquor
license.
Motion. Based upon the above findings, I move that this license be granted/denied.
Page 1
TOWN CLERK Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Jackie Williamson, Town Clerk
Date: December 11, 2012
RE: Liquor Licensing: Transfer of Ownership from Rams Horn Development
Company LLC dba Marys Lake Lodge to EP Resorts, Inc., dba Marys
Lake Lodge, 2625 Marys Lake Road, Tavern Liquor License.
Background:
EP Resorts, Inc., dba Marys Lake Lodge located at 2625 Marys Lake Road, is
requesting a transfer of the Tavern liquor license currently held by Rams Horn
Development Company LLC. The application was submitted to the Town Clerk’s Office
on September 28, 2012, and a temporary license was issued on that date.
EP Resorts, Inc., has submitted all necessary paperwork and fees. The applicant is
aware of the TIPS training requirement and he and 11 staff members satisfactorily
completed the TIPS training session which was hosted by the Town of Estes Park on
November 12, 2012.
Budget:
None.
Sample Motion:
I move to approve/deny the Transfer Application for a Tavern liquor license filed by EP
Resorts, Inc., dba Marys Lake Lodge.
April 2003
PROCEDURE FOR TRANSFER OF LIQUOR LICENSE
TOWN CLERK.
Will present the application and confirm the following:
5 The application was filed September 28, 2012 .
5 The Town has received all necessary fees and hearing costs.
5 The applicant is filing as a Corporation .
5 There is a police report with regard to the investigation of the applicants.
5 Status of T.I.P.S. Training:
Unscheduled X Completed Pending Confirmation
MOTION:
I move the Transfer Application filed by EP Resorts, Inc. doing business as Marys Lake
Lodge for a Tavern License be approved/denied.
Page 1
FINANCE Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Steve McFarland – Finance Officer
Date: December 11th, 2012
RE: Third Quarter Financial Report
Background:
Attached is the 3rd Quarter Sales Tax and Financial report for 2012. The sales tax
information includes January – September, 2012, while the financial data is provided
through October 2012.
The Financial Indicator slide provides information in four key areas:
• General Fund: Due to timing (September sales tax data received after closing of
October books), sales tax is only reported through August 2012 in this section.
“Other” revenues of $1,373,960 include licenses & permits ($457k),
intergovernmental ($368k), interest/rents ($171k), and charges for services
($105k). Major expenditure categories are all well within budgeted parameters
(78% of budget expended with 83% of year completed). Public Works is at 85%
of budget because of the Virginia Drive capital project. “Transfers Out” are
slightly higher than budget because 100% the Medical Fund transfer was made
in January, in order to “seed” the Fund.
• Sales Tax: Sales tax for the first 3 quarters of 2012 is 6.8% ahead of budget,
and 5.9% ahead of 2011. September (up 8.9% over September 2011) was a
nice rebound after an average July/August.
• Enterprise (Utility) Funds: In aggregate, utility revenues are on target with
budget. Specifically, L&P revenues have been disappointing, whereas Water
revenues have been stellar. Perhaps this is the flip side of strong sales tax
revenues. With the warm weather, sales tax collections are on record pace –
however, warm weather is not so friendly to electric revenues, as demand was
below expectations for the first three quarters. Expenditures (77%) are well
within budgeted parameters.
Page 2
FINANCE Memo
• Investments: A municipality’s investment universe is limited to interest-rate
sensitive instruments, including money markets, CDs, US Treasuries and US
Instrumentalities. The drop in interest rates from 2008 (~4.75%) to today (~
0.25%) has caused over $750,000 in returns to evaporate, subsequently
affecting every Town fund. Recent legislation (HB 12-1005) has allowed
municipalities to again invest in government-backed securities that were
prohibited when the ratings agencies downgraded the US Government in 2010.
The Town took advantage of this, and is now positioned in accordance with
recommendations from our investment advisors. Our investment strategy is to
keep duration (length of investment) on a very short leash – the Town does not
want to be caught disproportionately in long positions should interest rates
increase significantly. Investment levels usually reach their high-water mark in
September, corresponding to receipt of July sales tax.
Pertinent information included in the sales tax slides include:
• Compared to other CAST communities, Estes Park’s year over year (2012 v
2011) increase for January – September is very competitive with other mountain
communities. As can be seen, collection of data varies by Town, so this is not
exactly an apples – apples comparison, but it is very encouraging.
• The “Sales Tax Rate of Change” slide show that on a 12-month moving average,
sales tax is now at a record level of $648,571/month ($7,782,848/year). This is
on target with the revised sales tax budget of $7,800,000, and exceeds the
original 2012 budget by approximately $465,000. The above information
references the top blue line, which ties to the left vertical axis. The lower maroon
line, connected with the right vertical axis, shows that sales tax is currently
increasing at an annual pace of nearly 5.1% (the July/August malaise reduced
the rate of increase from over 10%). For almost a year (August 2009 – August
2010), sales tax was actually experiencing negative growth, so the current
numbers are most encouraging.
• The “Sales Tax Comparison: 2010-12” slide provides detailed information about
each of the Town’s major sales tax sectors for the first half of the past 3 years.
Food and lodging (66% of the sales tax total) are up a combined 17% over the
past two years. Construction is also up 20% over the past two years, which
would offer encouragement that the sales tax gains are broad-based, and reflect
increased activity in many areas of the Estes Park economy.
Page 3
FINANCE Memo
Concluding/Other thoughts
Staff will provide a complete 2012 financial report at the end of February/beginning of
March.
Budget:
N/A
Staff Recommendation:
N/A
Sample Motion:
N/A
Update:Update:
Financial and Sales Tax Report
(through October 2012)
S ld i OffiSteve McFarland –Finance Officer
FINANCIAL INDICATORSFINANCIAL INDICATORS
TOWN OF ESTES PARK – THROUGH OCT 31st, 2012
TOWN OF ESTES PARK
2012 2012 % of 2012 2012 % of
Year ‐to ‐Date Budget Variance Budget Year ‐to ‐Date Budget Variance Budget
% of year elapsed> 83% % of year elapsed> 83%
REVENUES REVENUES
ENTERPRISE FUNDS (L&P/WATER)GENERAL FUND
Through October 31, 2012
REVENUES REVENUES
Taxes (sales, ptax, f fees) $6,254,833 $8,356,212 ($2,101,379)74.9% Utility Sales $13,361,271 $16,189,428 ($2,828,157)82.5%
Other 1,373,960 1,822,765 (448,805)75.4% Fees/services 381,093 319,000 62,093 119.5%
Transfers from Enterprise 994,190 1,233,322 (239,132)80.6% Other 271,931 276,290 (4,359)98.4%
TOTAL REVENUES 8,622,983 11,412,299 (2,789,316)75.6% 14,014,295 16,784,718 (2,770,423)83.5%
EXPENSES EXPENSES
General Government 2,534,928 3,291,912 756,984 77.0% Source of Supply 5,019,725 6,577,948 1,558,223 76.3%
Public Safety 2 443 881 3 423 385 979 504 71 4%Purification 482 513 662 255 179 742 72 9% Public Safety 2 ,443 ,881 3 ,423 ,385 979 ,504 71 .4% Purification 482 ,513 662 ,255 179 ,742 72 .9%
Public Works 1,815,047 2,130,332 315,285 85.2% Distribution 2,460,276 3,073,266 612,990 80.1%
Culture‐Recreation 727,073 979,979 252,906 74.2% Customer Accounts 636,600 897,623 261,023 70.9%
Interfund Transfers Out 1,894,031 2,252,364 358,333 84.1% Admin/General 1,780,672 2,332,210 551,538 76.4%
Interfund Transfers Out 1,057,106 1,296,238 239,132 81.6%
Debt Service 854,999 854,999 0 100.0%
Capital 1,170,177 1,833,300 663,123 63.8%
TOTAL EXPENSES 9,414,960 12,077,972 2,663,012 78.0% TOTAL EXPENSES 13,462,068 17,527,839 4,065,771 76.8%
NET INCREASE/DECREASE ($791,977) ($665,673) ($126,304)NET INCREASE/DECREASE $552,227 ($743,121)$1,295,348
*includes sales ‐related taxes through August'12
SALES TAX 1st‐2nd Qs 3rd QTotalINVESTMENTS (Fair value)Aug ‐12 Sep‐12 Oct‐12
Town Funds
2012 Budget 2,663,519 3,346,933 6,010,452 Money markets/CDs 14,001,770 14,562,942 14,754,845
2012 2,959,047 3,459,741 6,418,788 U.S. Treasuries 2,859,488 2,857,449 2,851,984
l2011 2,607,594 3,450,883 6,058,477 U.S. Instrumenta l ities 5,529,266 5,527,075 5,525,430
2010 2,479,795 3,178,427 5,658,222 Total 22,390,524 22,947,466 23,132,258
FOSH/Theater Fund 457,774 457,844 457,913
2012 vs budget 11.1% 3.4% 6.8% 2012 data thru 10/31/12: DJIA +7.2%, S&P500 +12.3%, NASDAQ +14.3%
2012 vs 2011 13.5% 0.3% 5.9% annual pooled govt mm rate: 10/31/12 = 0.26%; 0.15% locally.
SALES TAX FACTS
•Jan‐Sep 2012 complete.
•75% of calendar year; ~82% of fiscal year.
•5.9% ahead of Jan‐Sep 2011.
•6.8% ahead of original 2012 budget ($7.3m).
•19 CAST communities currently reporting,
Estes Park still holding its own,despite 3%g ,p
decrease in Jul/Aug.
CAST COMMUNITIES
8.6% 8.6%
60%59%
6.3%
7.7%
6.4%
8.0%
10.0%2012 v 2011
2.8%
4.2%
4.9%
6 .0%5 .9%
3.4%
3.9%
5.2%
2.0%
3.4%3.3%4.0%
6.0%
‐0.8%
0%
0.0%
2.0%
‐1.5%
60%
‐4.0%
‐2.0%
‐6.4%
‐8.0%
‐6 .0%
SALES TAX RATE OF CHANGE
10%
15%
20%
$600,000
$700,000
$648,571
$7,782,848 2011 = $7.42M
'2012B = $7.32MSeptember-12
12 Mo Rev.
0%
5%
10%
$
$400,000
$500,000
g o
f
A
v
e
R
e
v
.
me
15%
-10%
-5%
$100 000
$200,000
$300,000
12
M
o
%
C
h
g
In
c
o
m
5.07%
12 Mo. ROC =September-12
-20%
-15%
$0
$100 ,000
12 Mo Ave 12 mo %
SALES TAX COMPARISONS: 2010‐12
TOWN OF ESTES PARKTOWN OF ESTES PARK
2012 SALES TAX CLASSIFICATION BREAKDOWN Prior Prd Prior Prd
2012 2011 2012 2010 2012
BRIEF TOTAL % of Jan‐Sep vs. Jan‐Sep vs.
DESCRIPTION YEAR Total YEAR 2011 YEAR 2010
AMUSEMENTS/RECREATION 46,295.50 1% 48,665.44 ‐5% 36,436.03 27%
AUTOMOTIVE 115,856.81 2% 108,196.74 7% 115,495.33 0%
FOOD 2,410,512.82 38% 2,332,415.09 3% 2,104,459.07 15%
RETAIL 1,203,915.74 19% 1,180,465.48 2% 1,129,036.93 7%
LODGING 1,809,058.35 28%1,608,027.53 13%1,503,194.84 20%LODGING 1,809,058.35 28%1,608,027.53 13%1,503,194.84 20%
CONSTRUCTION 319,281.09 5% 275,340.78 16% 265,489.17 20%
PERSONAL/PROFESSIONAL 107,076.41 2% 84,989.17 26% 82,397.40 30%
UTILITIES 406,791.82 6% 420,376.73 ‐3% 421,712.97 ‐4%
GRAND TOTAL 6,418,788.54 100% 6,058,476.96 6% 5,658,221.74 13%
Community Development Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Dave Shirk, Planner
Date: December 11, 2012
RE: PRELIMINARY AND FINAL SUBDIVISION PLATS, Wonderview Village
Townhomes (FKA Wonderview Village Condominiums), 141 Willowstone
Drive; Steve Murphree/Applicant
Background: This is a request for a preliminary and final townhouse subdivision plat
for an approved development plan/condominium subdivision. The property is currently
developed with four units, with an additional 13 approved. No additional development
approval is requested.
This subdivision plat would replace an existing condominium association with a
townhome association. Both ownership types are governed by the Colorado Common
Interest Ownership Act.
Budget: N/A
Planning Commission Recommendation: On Tuesday November 20 2012, the
Estes Valley Planning Commission held a public hearing to discuss the Wonderview
Village Preliminary and Final Townhome Subdivision Plats. At that time, the Planning
Commission found:
1. This proposal complies with applicable sections of the Estes Valley Development
Code, including Section 3.9.E “Standards for Review” and 10.3 “Review
Procedures.”
2. Per Section 10.5.K.1, sidewalk and district buffer landscaping shall either be
installed or guaranteed prior to recordation of plat.
3. This request has been submitted to reviewing agency staff for consideration and
comment. No significant issues or concerns were expressed by reviewing staff
relative to code compliance or the provision of public services.
4. Within sixty (60) days of the Board’s approval of the amended plat, the developer
shall submit the plat for recording. If the plat is not submitted for recording within this
sixty-day time period, the approval shall automatically lapse and be null and void.
5. This is a Planning Commission recommendation the Town Board.
The Planning Commission voted unanimously (6-0, one absent) to recommend
APPROVAL of the proposed Wonderview Village Preliminary and Final Townhome
Subdivision Plats CONDITIONAL TO:
1. The final plat shall account for the revised sewer easement, as referenced in memo
from EPSD dated Oct. 9 2012.
2. Compliance with memo from Public Works dated October 29, 2012.
3. Preliminary construction plans for the sidewalk shall be submitted prior to final plat
approval.
Sample Motion: I move for the approval (or disapproval) of the proposed
Wonderview Village Preliminary and Final Townhome Subdivision Plats subject to the
findings and conditions recommended by the Planning Commisison.
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Estes Park Tree Board
Date: December 11, 2012
RE: Tree Board Appointment – Celine Lebeau and Apryle Craig
Background:
Currently the Estes Park Tree Board has two vacancies due the departure from the
board of members Sandy Burns and Mike Richardson, whose terms recently expired. A
panel of Estes Park Tree Board members and staff interviewed Celine Lebeau and
Apryle Craig for the open positions and were impressed with both candidates’
background and qualifications.
Celine Lebeau graduated from the University of Colorado - Boulder in Environmental,
Population and Organismic Biology and works at Van Horn Engineering.
Apryle Craig has a BS in Bioengineering and is pursuing her Masters in Ecology from
CU while working part time for the National Park.
Both candidates have a great interest in Estes Park Tree Board activities and look
forward to volunteering for the Estes Park Tree Board.
Budget:
N/A
Staff Recommendation:
The Estes Park Tree Board recommends the appointment of Celine Lebeau to the
Estes Park Tree Board, with a term expiring December 11, 2016. The Estes Park Tree
Board also recommends the appointment of Apryle Craig to the Estes Park Tree Board,
with a term expiring December 11, 2016.
Sample Motion:
I move for the approval/denial of the appointment of Celine Lebeau to the Estes Park
Tree Board, with a term expiring December 11, 2016. In addition, I move for the
approval/denial of the appointment of Apryle Craig to the Estes Park Tree Board, with a
term expiring December 11, 2016.
PARKS DEPARTMENT Memo
Page 1
POLICE DEPARTMENT Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Wes Kufeld, Chief of Police
Date: December 11, 2012
RE: Park R-3 School District School Resource Officer Agreement 2012-2013
Background:
The Police Department has provided School Resource Officer (SRO) services to the
Park School District R-3 since 2005. Beginning the 2009 /2010 school year, the
district agreed to and has paid $20,000.00 each school year. This revenue was utilized
to offset overtime costs associated with the SRO position.
In 2010, the Staff of Park R-3 School approached The Town Board to request the
town’s assistance in allowing the School Resource Officer to continue without funding
from the school. The Town also received a letter of request from Park School District
formally asking for the $20,000.00 fee to be waived and to continue the needed SRO
services which was waived. The schedule of the School Resource Officer was adjusted
to being in the schools 3 days a week.
Recently, for the current school year (2012-2013) the School District has agreed to fund
this position with this new MOU. Superintendent Hickey has already signed the
agreement. The District has agreed to fund the full $20,000.00 for the school year.
Thus the School Resource Officer will be back in the schools on a fulltime basis.
Budget:
Revenue of $20,000.00 from the School District will go to help offset the cost of a
fulltime police officer in the schools.
Recommendation:
Staff recommends the approval of the School Resource Officer Agreement.
Motion
I move to approve / deny the School Resource Officer agreement between the Town
and the School District for the 2012 /2013 school year.
AGREEMENT
This AGREEMENT (“Agreement”), made and entered into the 11th day of December,
2012, for the 2012 -2013 school year, by and between:
ESTES PARK SCHOOL DISTRICT R-3
(hereinafter referred to as “DISTRICT”)
AND
TOWN OF ESTES PARK
(hereinafter referred to as “TOWN”)
WITNESSETH:
WHEREAS, the DISTRICT desires the TOWN to have a police officer serve as a School
Resource Officer in all of its schools to assist in maintaining safe school environments, to
improve school law enforcement collaboration, and to improve perceptions and relations
between students, staff and law enforcement officials.
WHEREAS, the DISTRICT and the TOWN both recognize the outstanding benefits that
the School Resource Officer program has for the citizens of Estes Park and particularly for the
students attending the DISTRICT’S schools. The parties agree that it is in the best interests of
the DISTRICT, The TOWN, and the citizens of the community to continue the program as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
parties agree as follows:
SECTION 1. DUTIES AND RESPONSIBILITIES OF THE TOWN
1.01 TOWN shall provide; for the 2012 – 2013 school year, one (1) School Resource Officer
(hereinafter referred to as SRO) to the school campus operated by the DISTRICT 40
hours per week or (5) school days per week, when school is in session:
Estes Park R-3 Elementary
1505 Brodie Avenue
Estes Park, Colorado 80517
Estes Park R-3 Middle School
1500 Manford Avenue
Estes Park, Colorado 80517
Estes Park R-3 High School
1600 Manford Avenue
Estes Park, Colorado 80517
1.02 The SRO shall abide by DISTRICT Policies, regulations, and TOWN Policies, rules and
regulations.
1.03 TOWN shall be responsible for the supervision, control, and direction of all aspects of
employment of the police officer assigned to the SRO Program. However, the TOWN
shall solicit input from the principals and Superintendent each year for evaluation and
program effectiveness of the SRO program.
1.04 TOWN shall ensure that the exercise of the law enforcement powers by the SRO is in
compliance with the authority granted by law.
1.05 The SRO shall not function as a school disciplinarian or security officer, and shall not
intervene in the normal disciplinary actions of the school system, nor be used to witness
any disciplinary procedures in the school. The SRO, at all times, will be expected to act
within the scope of authority granted by law as a police officer and shall be expected to
the following:
(a) To perform daily law enforcement functions within the school setting.
(b) To respond to emergency situations for the protection of students and staff
consistent with the SRO’s responsibility.
(c) To identify and mitigate, through counseling and referral, delinquent
behavior, including substance abuse.
(d) To foster a better understanding of the law enforcement function.
(e) To develop positive concepts of law enforcement.
(f) To develop a better appreciation of citizen rights, obligations and
responsibilities.
(g) To provide information about crime prevention.
(h) To provide assistance and support for crime victims identified within the
school setting, including abused children.
(i) To promote positive relations between students and law enforcement
officers.
(j) To enhance knowledge of the fundamental concept and structure of law.
(k) To provide to students instruction in various aspects of law enforcement
and education, emphasizing an educational component for students
concerning policing practices and enforcement initiatives related to
juvenile behavior. The SRO shall consult and coordinate instructional
activities through the school principals.
(l) To participate each year with career activities held by the schools.
(m) To meet, when requested, with the Superintendent or her/his designee for
the purpose of reviewing the educational needs of the schools relating to
the SRO.
(n) To provide information and reports allowed and required by Colorado law
to the Superintendent or her/his designee relating to enrolled students
within the Estes Park R-3 School District and as it pertains to the Attorney
Generals Order - Information sharing.
(o) To support specific administrative actions taken by the building
administrators and the Superintendent in maintaining a drug free school
environment, such as locker and parking lot searches and to provide
supportive resources (i.e. drug dogs) only when asked by the
Superintendent of schools.
(p) The SRO may, when requested, work closely with the schools primary
emergency service provider for the coordination and planning of all crisis
situations that potentially affect campus safety.
(q) The TOWN shall ensure the SRO receives annual and updated training
relevant to providing police services within the school environment.
1.06 Qualifications for officer assignment to the SRO program are:
(a) The applicant must be a full-time peace officer, level 1 with full police authority
as defined by C.R.S. §18-1-901(3)(1)(I), with a minimum of two (2) years of law
enforcement experience.
(b) Shall possess a sufficient knowledge of the applicable Federal and State laws.
City and County ordinances, and Estes Park School District policies and
regulations.
(c) Shall have access to police resources to conduct criminal investigations.
(d) Shall possess even temperament and set a good example for students.
(e) Shall possess communication skills that would enable the officer to function
effectively within the school environment.
1.07 The TOWN reserves the right to change the officer assigned to SRO duties during the
course of the agreement.
1.08 The SRO shall be on duty at the school 40 hours per week or (5) school days per week,
as determined by and at the sole discretion of the town, during regular school hours when
students are required to attend, subject to the absence of the SRO for police department
emergency needs, training needs or law enforcement requirements prohibit. A monthly
schedule will be created and provided to building and district administration, outlining the
days and hours that the SRO will be present. If absence must occur during these scheduled
days, due to vacation or sick time, the SRO or department will notify the Administrative
Assistant of the Superintendant, of the SRO’s absence. Patrol Officers, while performing
their regular patrol duties, will respond to calls for service, perform extra checks and
walkthroughs and or offer support in the absence of the SRO. During non-scheduled days,
district personnel will contact dispatch for police services. The TOWN reserves the right to
amend this commitment if staffing levels dictate that they do so.
SECTION 2. DUTIES AND RESPONSIBLITIES OF DISTRICT
2.01 The principal or his/her designee at the designated school shall be the on-site contact
person for the SRO and shall be responsible for communicating the day-to-day need of
service from the SRO. The Superintendent shall ensure the SRO Program supports
meeting the mission and vision of the DISTRICT within the school district. The
Superintendent of Schools shall assign a designee to serve as the district liaison for the
program.
2.02 The DISTRICT agrees to provide the SRO an office to conduct matters of confidentiality
with a desk, necessary office furnishings and a telephone.
2.03 The DISTRICT shall maintain control over the content of all educational programs and
instructional materials.
2.04 SRO’s shall have access to educational records under the following conditions:
(a) Law enforcement access to educational records shall be in compliance with all
applicable laws and regulations as it pertains to the Attorney Generals Order
relating to information sharing.
(b) The SRO shall have access to confidential educational records to perform work
that is directly related to their duties at the school.
(c) Law Enforcement access to records for purposes outside the scope of the SRO’s
duties at the school shall be limited to:
(1) Public information, such as yearbooks or student directory
information
(2) Information needed in an emergency to protect the health or safety
of the student or other individuals, based on the seriousness of the
threat to someone's health or safety; the need of the information to
meet the emergency situation and the extent to which time is of the
essence.
(3) If confidential student records information is needed, but no
emergency situation exists, the information, depending on the
situation, may be released by the school Principal or
Superintendent. Otherwise, the records will be made available by
the issuance of a search warrant or subpoena.
.
(d) Law Enforcement records shall be made available by the Police Department to
the Principal, Superintendant or designee, as described and in accordance to the
Attorney Generals Order pertaining to information sharing.
SECTION 3 FINANCIAL SUPPORT OF SRO POSITION
3.01 This agreement shall be made for the duration of school each year, beginning the first day
of student attendance through the last day of student attendance.
3.02 This agreement shall continue in effect until the duration of the term described in
paragraph 3.01 or until terminated by either of the parties in accordance with the
terms listed in Section 4 below.
3.03 The DISTRICT has agreed to pay $20,000 to help cover a portion of the cost of the SRO
position in the Schools for the contracted period.
SECTION 4. TERMINATION
4.01 Either party may terminate this agreement by serving written notice upon the other party
at least thirty (30) days in advance of such termination.
SECTION 5. INVALID PROVISION
5.01 Should any part of this Agreement be declared invalid by a court of law, such
decision shall not affect the validity of any remaining portion which shall remain in full
force and effect as if the invalid portion was never a part of this Agreement when it
was executed. Should the severance of any part of this Agreement materially affect any
other rights or obligations of the parties hereunder, the parties hereto will negotiate
in good faith to amend this Agreement in a manner satisfactory to the parties. Failing
agreement on such amendment, either party may by notice in writing, terminate this
Agreement forthwith subject to the provisions of this Agreement relating to
termination.
SECTION 6. INDEMNIFICATION
6.01 The DISTRICT agrees to indemnify and save harmless the TOWN for any liability
whatsoever arising out of the negligent acts of the DISTRICT’s employees or agents.
The TOWN agrees to indemnify and save harmless the DISTRICT of any liability
whatsoever arising out of the negligent acts of the School Resource Officer or the
TOWN. Nothing in this Agreement shall be construed to affect in any way the TOWN
or the DISTRICT’s rights, privileges, and immunities, including sovereign immunity as
provided by law. The parties hereto understand and agree that the DISTRICT, the
TOWN, and their officers and employees are relying on, and do not waive or intend to
waive by any provision of this Agreement, the monetary limitations or any other rights,
immunities, and protections provided by the Colorado Governmental Immunity Act,
C.R.S. 24-10-101 et seq., as from time-to-time amended, or otherwise available by other
provision of law to either party, their officers, or their employees.
SECTION 7. ASSIGNMENT
7.01 Neither party to the Agreement shall, directly or indirectly, assign or purport to assign
this Agreement or any of its rights or obligations in whole or in part to any third party
without the prior written consent of the other party.
SECTION 8. NO WAIVER
8.01 The failure of either party to enforce at any time any of the provisions, rights, or to
exercise any elections provided, shall in no way be considered to be a waiver of such
provisions, rights or elections or in any way effect the validity of the Agreement. The
failure to exercise by either party any of its rights herein or any of its elections under the
terms or conditions herein contained shall not preclude or prejudice it from exercising the
same or any other right it may have under this Agreement, irrespective of any previous
action or proceeding taken by it hereunder.
SECTION 9. COMPLETE AGREEMENT
9.01 This Agreement is the complete Agreement of the parties; may be amended or
modified only in writing; and supersedes, cancels and terminates any and all prior
agreements or understandings of the parties, whether written or oral, concerning the
subject matter hereof.
SECTION 10. CHOICE OF LAW
10.01 This Agreement shall be governed by and construed and interpreted according to the laws
of the State of Colorado. It shall be binding upon and inure to the benefit of the
successors of the TOWN and DISTRICT.
SECTION 11. NON-DISCRIMINATION PROVISION
11.01 The parties shall not discriminate against any employee or participant in this program
because of race, age, religion, color, gender, national origin, martial status, disability, or
sexual orientation.
SECTION 12. NOTICE PROVISIONS
12.01 When any of the parties desire to give notice to the other, such notice must be in writing
sent by US Mail, postage prepaid, addressed to the party for whom it is intended at the
place last specified; the place for giving notice shall remain such until it is changed by
written notice in compliance with the provisions of the paragraph. For the present, the
parties designate the following as the respective places for giving notices:
To DISTRICT: Superintendent of Schools
Park School District
1601 Brodie Avenue
Estes Park, Colorado 80517
To TOWN: Town Administrator
Town of Estes Park
P.O. Box 1200
Estes Park, Colorado 80517
AUTHORITY PROVISION
Each person signing this Agreement on behalf of either party individually warrants that he/she
has full legal power to execute this agreement on behalf of the party for whom he/she is signing,
and to bind and obligate such party with respect to all provisions contained in this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day
and year first written above.
PARK SCHOOL DISTRICT R-3
By_________________________
Patrick Hickey
Superintendent of Schools
Date:
TOWN OF ESTES PARK
By__________________________
William C. Pinkham
Mayor Town of Estes Park
Date:
ATTEST:
______________________________
Jackie Williamson, Town Clerk
Page 1
Town Attorney Memo
To: Honorable Mayor Pinkham
Board of Trustees
From: Gregory A. White, Town Attorney
Date: December 3, 2012
RE: Resolution No. 18-12 Cable Television Agreement - Baja
Background:
Baja Broadband Operating Company, LLC is the current Grantee under the Cable
Television Permit Agreement dated July 27, 1993, as amended. Baja and Town
representatives have negotiated a new proposed Cable Television Agreement. The
current Cable Television Permit Agreement terminates December 14, 2012. A
summary of the terms and conditions of the proposed Cable Television Agreement is as
follows:
1. Term. The term is ten years.
2. Agreement Fee. The agreement fee is five percent (5%) of Grantee’s gross
revenues. This agreement fee is the same as the past Cable Television Permit
Agreement and the maximum allowed by federal law.
3. Grant. The Town grants to Baja a non-exclusive right to make reasonable and
lawful use of the Town’s rights-of-way within the Town boundary to construct,
operate and maintain its cable system.
4. Indemnification and Insurance. Baja indemnifies and holds the Town harmless
for claims, actions, and injuries as more fully set forth in the Agreement. Baja is
required to maintain insurance for its activities as set forth in the Agreement.
5. Customer Service Standards. Exhibit 1 of the Agreement provides for customer
service standards for Baja’s cable system within the Town.
6. Educational and Government Access Channels. Baja is required to provide, at
no cost to the Town, one channel for educational and government access.
7. Construction standards. The Agreement contains appropriate standards for
construction and location of Baja facilities within the Town including restoration of
the surface and maintenance of its facilities.
8. Undergrounding of cable. The Agreement contains provisions requiring Baja to
install its wiring underground when electric and telephone utility wiring are also
underground at Baja’s expense unless otherwise allowed by applicable law.
9. Emergency Alert Capability. The Agreement requires Baja to provide equipment
and access for an emergency alert system in compliance with FCC standards.
The Town is responsible for the monthly cost of the phone line which has been
estimated by Baja to be $20 - $50 per month.
Budget:
Revenue to the Town from the 5% Agreement fee will be substantially the same as the
current revenue received by the Town.
Staff Recommendation:
The Town retained River Oaks Communications Corporation to represent the Town in
the negotiations of this new Cable Television Agreement. River Oaks Communications
has stated to Town Staff that this new Cable Television Agreement is a modern and
favorable Agreement for a community the size of Estes Park taking into account the
costs of Baja and has recommended that the Town Board approve this new Cable
Television Agreement. Based upon River Oaks Communications’ recommendation and
Town Staff experience with Baja, Staff recommends approval of Resolution No. 18-12.
Sample Motion:
I move to approve/deny Resolution No. 18-12.
RESOLUTION NO. 18-12
APPROVING A NEW CABLE TELEVISION AGREEMENT
WHEREAS, Baja Broadband Operating Company, LLC (“Baja”) is the
current Franchisee pursuant to the terms and conditions of the Cable Television
Permit Agreement dated July 27, 1993 including amendments which extend the
Permit Agreement to December 14, 2012; and
WHEREAS, representatives of the Town and Baja have negotiated a new
Cable Television Agreement which, if approved, would be for a ten year period
effective December 14, 2012; and
WHEREAS, the Board of Trustees has reviewed the proposed Cable
Television Agreement with Baja and has determined that it is in the best interest
of the Town and its citizens to approve the Cable Television Agreement with Baja
as submitted.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES
OF THE TOWN OF ESTES PARK as follows:
1. The Board of Trustees hereby approves the Cable Television
Agreement with Baja Broadband Operating Company, LLC as more
fully set forth on Exhibit A, attached hereto and incorporated herein by
reference.
2. The appropriate officials of the Town of Estes Park are hereby
authorized to execute the Cable Television Agreement.
PASSED AND ADOPTED at a regular meeting this ____ day of ____________,
2012.
Mayor
ATTEST:
Jackie Williamson, Town Clerk
TOWN OF ESTES PARK, COLORADO
CABLE TELEVISION AGREEMENT
December 4, 2012
i
TABLE OF CONTENTS
SECTION 1. DEFINITIONS ................................................................................................................. 1
“Access or Access Programming” ............................................................................................................. 2
“Access Channel” ...................................................................................................................................... 2
“Access Fees” ............................................................................................................................................ 2
“Activation” or “Activated” ...................................................................................................................... 2
“Affiliated Entity” or “Affiliate” ............................................................................................................... 2
“Agreement” .............................................................................................................................................. 2
“Agreement Area” ..................................................................................................................................... 2
“Agreement Fee” ....................................................................................................................................... 2
“Bad Debt” ................................................................................................................................................ 3
“Basic Service” .......................................................................................................................................... 3
“Broadcast Signal” .................................................................................................................................... 3
“Cable Act” ............................................................................................................................................... 3
“Cable Operator” ....................................................................................................................................... 3
“Cable Service” ......................................................................................................................................... 3
“Channel” .................................................................................................................................................. 3
“Town” or “Grantor” ................................................................................................................................. 3
“Designated Access Provider” .................................................................................................................. 3
“Downstream Channel” ............................................................................................................................. 3
“Dwelling Unit” ......................................................................................................................................... 4
“Expanded Basic Service” ......................................................................................................................... 4
“FCC” ........................................................................................................................................................ 4
“Fiber Optic” ............................................................................................................................................. 4
“GAAP” .................................................................................................................................................... 4
“Generally Applicable” ............................................................................................................................ 4
“Gross Revenues” ...................................................................................................................................... 4
“Headend” or “Hub” .................................................................................................................................. 5
“Interconnect” or “Interconnection” ......................................................................................................... 5
“Leased Access Channel” ......................................................................................................................... 5
“Locally Scheduled Original Programming” ........................................................................................... 5
“Noncommercial” ...................................................................................................................................... 5
“Normal Business Hours” ......................................................................................................................... 5
“Normal Operating Conditions” ................................................................................................................ 5
“Pay Service” or “Premium Service” ........................................................................................................ 6
“Person” ..................................................................................................................................................... 6
“Residential Subscriber” ........................................................................................................................... 6
“Rights-of-Way” ........................................................................................................................................ 6
“School” .................................................................................................................................................... 6
“Service Interruption” ............................................................................................................................... 6
“State” ........................................................................................................................................................ 6
“Subscriber” or “Customer” ...................................................................................................................... 6
“System” or “Cable System” ..................................................................................................................... 6
“Tier” ......................................................................................................................................................... 7
“Video Programming” ............................................................................................................................... 7
ii
SECTION 2. GRANT OF AGREEMENT ........................................................................................... 7
2.1 Grant .............................................................................................................................................. 7
2.2 Use of Rights-of-Way .................................................................................................................... 8
2.3 Duration ......................................................................................................................................... 8
2.4 Effective Date ................................................................................................................................ 9
2.5 Agreement Nonexclusive .............................................................................................................. 9
2.6 Grant of Other Agreements ........................................................................................................... 9
2.7 Familiarity with Agreement .......................................................................................................... 9
2.8 Effect of Acceptance ................................................................................................................... 10
2.9 Police Powers .............................................................................................................................. 10
SECTION 3. AGREEMENT FEE AND FINANCIAL CONTROLS.............................................. 10
3.1 Agreement Fee ............................................................................................................................. 10
3.2 Payments ...................................................................................................................................... 10
3.3 Acceptance of Payment ............................................................................................................... 10
3.4 Quarterly Agreement Fee Reports ............................................................................................... 10
3.5 Audits .......................................................................................................................................... 11
3.6 Financial Records ........................................................................................................................ 11
3.7 Interest on Late Payments ........................................................................................................... 11
3.8 Additional Commitments Not Agreement Fees .......................................................................... 11
3.9 Payment on Termination ............................................................................................................. 12
3.10 Bundling ...................................................................................................................................... 12
3.11 Tax Liability ................................................................................................................................ 12
SECTION 4. ADMINISTRATION AND REGULATION ............................................................... 13
4.1 No Rate Discrimination ............................................................................................................... 13
4.2 Filing of Rates and Charges ........................................................................................................ 13
4.3 Performance Evaluation .............................................................................................................. 14
4.4 Leased Access Channel Rates ..................................................................................................... 14
4.5 Late Fees ...................................................................................................................................... 14
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS .............................................. 14
5.1 Indemnification ............................................................................................................................ 14
5.2 Insurance Requirements .............................................................................................................. 16
5.3 Security ........................................................................................................................................ 17
SECTION 6. CUSTOMER SERVICE ............................................................................................... 18
6.1 Customer Service Standards ........................................................................................................ 18
6.2 Subscriber Privacy ....................................................................................................................... 18
6.3 Customer Service Location(s) ..................................................................................................... 18
6.4 Customer Service Agreement and Manual .................................................................................. 19
SECTION 7. REPORTS AND RECORDS ........................................................................................ 19
7.1 Records ........................................................................................................................................ 19
7.2 Confidentiality ............................................................................................................................. 19
7.3 Records Required ........................................................................................................................ 20
7.4 Copies of Federal and State Reports ........................................................................................... 20
iii
7.5 Complaint File and Reports ......................................................................................................... 20
7.6 Inspection of Facilities and Annual Meeting .............................................................................. 21
7.7 False Statements .......................................................................................................................... 21
SECTION 8. PROGRAMMING ......................................................................................................... 21
8.1 Broad Programming Categories .................................................................................................. 21
8.2 Deletion of Broad Programming Categories ............................................................................... 21
8.3 Obscenity ..................................................................................................................................... 21
8.4 Services for the Disabled ............................................................................................................. 21
8.5 Parental Control Device .............................................................................................................. 22
8.6 Complementary Cable Service .................................................................................................... 22
SECTION 9. EDUCATIONAL AND GOVERNMENTAL ACCESS ............................................. 23
9.1 Access Channels .......................................................................................................................... 23
9.2 Triggers for Additional Access Channels ................................................................................... 23
9.3 Management and Control of Access Channels ............................................................................ 23
9.4 Underutilized Access Channels ................................................................................................... 24
9.5 Access Channel Identification/Location/Relocation ................................................................... 24
9.6 Access Interconnections .............................................................................................................. 24
9.7 Support for Coverage of Governmental and Educational Programming .................................... 25
9.8 Access Channels On Lowest Tier ................................................................................................ 25
9.9 Technical Quality ........................................................................................................................ 25
9.10 Return Lines ................................................................................................................................ 26
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION ............................... 26
10.1 Construction ................................................................................................................................ 26
10.2 Location of Facilities ................................................................................................................... 27
10.3 Restoration of Rights-of-Way ..................................................................................................... 27
10.4 Maintenance and Workmanship .................................................................................................. 27
10.5 Acquisition of Facilities .............................................................................................................. 28
10.6 Reservation of Rights-of-Way ..................................................................................................... 28
10.7 Rights-of-Way Vacation .............................................................................................................. 29
10.8 Removal of Discontinued Facilities ............................................................................................ 29
10.9 Hazardous Substances ................................................................................................................. 30
10.10 Undergrounding of Cable ............................................................................................................ 30
10.11 Codes ........................................................................................................................................... 31
10.12 Construction and Use of Poles .................................................................................................... 31
10.13 Tree Trimming ............................................................................................................................. 32
10.14 Standards ..................................................................................................................................... 32
10.15 Stop Work .................................................................................................................................... 32
10.16 Work of Contractors and Subcontractors .................................................................................... 33
10.17 Safety ........................................................................................................................................... 33
10.18 Joint Trenching/Boring ................................................................................................................ 33
10.19 GIS Mapping ............................................................................................................................... 33
SECTION 11. SYSTEM DESIGN ...................................................................................................... 33
iv
SECTION 12. TECHNICAL STANDARDS ...................................................................................... 34
12.1 Technical Performance ................................................................................................................ 34
12.2 Inspection of Construction .......................................................................................................... 34
12.3 Cable System Performance Testing ............................................................................................. 34
12.4 Additional Tests........................................................................................................................... 35
SECTION 13. SERVICE EXTENSION ............................................................................................. 35
13.1 Service Availability ..................................................................................................................... 35
SECTION 14. STANDBY POWER AND EMERGENCY ALERT SYSTEM ............................... 36
14.1 Standby Power ............................................................................................................................. 36
14.2 Emergency Alert Capability ........................................................................................................ 37
SECTION 15. AGREEMENT BREACHES; TERMINATION OF AGREEMENT .................... 37
15.1 Procedure for Remedying Agreement Violations ....................................................................... 37
15.2 Alternative Remedies .................................................................................................................. 38
15.3 Assessment of Monetary Damages and Letter of Credit ............................................................. 39
15.4 Revocation ................................................................................................................................... 41
15.5 Removal ....................................................................................................................................... 43
SECTION 16. ABANDONMENT ....................................................................................................... 43
SECTION 17. AGREEMENT RENEWAL ....................................................................................... 43
SECTION 18. AGREEMENT TRANSFER ...................................................................................... 44
SECTION 19. PROHIBITED PRACTICES AND NOTICES .......................................................... 45
19.1 Preferential or Discriminatory Practices Prohibited ..................................................................... 46
19.2 Notices ........................................................................................................................................ 460
SECTION 20. MISCELLANEOUS PROVISIONS .......................................................................... 46
20.1 Cumulative Rights ....................................................................................................................... 46
20.2 Costs to be Borne by Grantee ...................................................................................................... 47
20.3 Binding Effect ............................................................................................................................. 47
20.4 Authority to Amend ..................................................................................................................... 47
20.5 Venue ........................................................................................................................................... 47
20.6 Governing Laws .......................................................................................................................... 47
20.7 Captions ....................................................................................................................................... 47
20.8 No Joint Venture .......................................................................................................................... 47
20.9 Waiver ......................................................................................................................................... 47
20.10 Severability .................................................................................................................................. 48
20.11 Force Majeure .............................................................................................................................. 48
20.12 Entire Agreement ......................................................................................................................... 48
20.13 Attorneys’ Fees ............................................................................................................................ 48
20.14 Action of the Town or Grantee .................................................................................................... 48
20.15 Authorization ................................................................................................................................. 48
Exhibit I ................................................................................................................................................... 50
1
CABLE TELEVISION AGREEMENT
This Cable Television Agreement is entered into in Estes Park , Colorado, this 11th day
of December, 2012, by and between the Town of Estes Park, Colorado, hereinafter
(“Grantor” or the “Town”) and Baja Broadband Operating Company, LLC hereinafter
known as “Grantee”. Grantor and Grantee are sometimes referred to hereinafter
collectively as the “parties.”
WHEREAS, the Grantor has reviewed Grantee’s performance under the prior
Cable Television Permit Agreement dated July 27, 1993, as amended (hereinafter the
“Permit”) and the quality of service during the prior Permit term, has identified the future
cable-related needs and interests of the Grantor and its citizens, has considered the
financial, technical and legal qualifications of Grantee, and has determined that Grantee’s
plans for constructing, operating and maintaining its System are adequate, in a public
proceeding affording due process to all parties; and
WHEREAS, the public has had adequate notice and opportunity to comment on
Grantee’s proposal to provide cable television service within the Town; and
WHEREAS, the Grantor has a legitimate and necessary regulatory role in
ensuring the availability of cable communications service, technical capability and
reliability of Systems in its jurisdiction, the availability of local programming (including
Governmental Access programming) and quality Customer service; and
WHEREAS, diversity in Cable Service and local and non-local programming is
an important policy goal and the Grantee’s System should offer a wide range of
programming services; and
WHEREAS, flexibility to respond to changes in technology, Subscriber interests
and competitive factors within the Cable Service market should be an essential
characteristic of this Agreement; and
WHEREAS, the Town is authorized by applicable law to grant one or more
nonexclusive agreements to construct, operate and maintain cable television Systems
within the boundaries of the Town.
NOW, THEREFORE, in consideration of the mutual promises made herein, and
other good and valuable consideration as provided herein, the receipt and adequacy of
which are hereby acknowledged, Grantor and Grantee do hereby agree as follows:
SECTION 1. DEFINITIONS
For the purposes of this Agreement and all Exhibits attached hereto the following terms,
phrases, words and their derivations shall have the meanings given herein. When not
inconsistent with the context, words used in the present tense include the future, words in
the plural include the singular, and words in the singular include the plural. Words not
defined shall be given their common and ordinary meaning. The word “shall” is always
mandatory and not merely directory.
2
“Access” or “Access Programming” means the availability for Noncommercial use by
various governmental and educational agencies, institutions and organizations, in the
community, including Grantor and its designees, of Channels on the System designated
for such use (but not for public access) as permitted under applicable law:
(A) “Educational Access” means Access where Schools are the primary users
having editorial control over programming and services.
(B) “Governmental Access” means Access where governmental institutions or
their designees are the primary users having editorial control over programming and
services.
“Access Channel” means any Channel, or portion thereof, designated for Noncommercial
Access purposes or otherwise made available to facilitate or transmit Access
programming. Channel 12 is currently the Access Channel on Grantee’s Cable System.
“Access Fees” means the payments to be paid to the Grantor by the Grantee in
accordance with section 9.7.
“Activation” or “Activated” means the status of any capacity on or part of the System
wherein the use of that capacity or part thereof may be made available without further
installation of System equipment other than Subscriber premise equipment, whether
hardware or software.
“Affiliated Entity” or “Affiliate” when used in connection with Grantee means any
Person who owns or controls, is owned or controlled by, or is under common ownership
or control with Grantee.
“Agreement” means the document in which this definition appears, that is executed
between Grantor and Grantee, containing the specific provisions of the authorization
granted and the contractual and regulatory agreement created hereby.
“Agreement Area” means the incorporated area within the jurisdictional boundaries of
the Grantor, including any areas annexed by Grantor during the term of this Agreement.
“Agreement Fee” includes any tax, fee or assessment of any kind imposed by the Grantor
on the Grantee or Subscribers, or both solely because of their status as such. The term
Agreement Fee does not include:
(A) Any tax, fee or assessment of general applicability (including any such
tax, fee, or assessment on both utilities and Cable Operators or their services, but not
including a tax, fee, or assessment that is unduly discriminatory against Cable Operators
or cable Subscribers);
(B) Requirements or charges incidental to the awarding or enforcing of the
3
Agreement, including but not limited to, payments for bonds, letters of credit, insurance,
indemnification, penalties or liquidated damages; or
(C) Any fee imposed under Title l7, United States Code.
All Agreement Fees may be passed through to Subscribers as provided by
Federal Law.
For purposes of applicable Federal law and FCC regulations, Grantee and
Town acknowledge that Agreement Fees are “Franchise Fees” as defined in 47 USC
Section 542.
“Bad Debt” means amounts lawfully owed by a Subscriber and accrued as revenues on
the books of Grantee, but not collected after reasonable efforts by Grantee.
“Basic Service” means any Cable Service Tier that includes, at a minimum, the
retransmission of local television Broadcast Signals and Access programming.
“Broadcast Signal” means a television or radio signal transmitted over the air to a wide
geographic audience, and received by a System off-the-air by antenna, microwave,
satellite dishes or any other means.
“Cable Act” means the Cable Communications Policy Act of 1984, as amended by the
Cable Television Consumer Protection and Competition Act of 1992, and as amended by
the Telecommunications Act of 1996, and any amendments thereto.
“Cable Operator” means any Person or group of Persons, including Grantee, who
provides Cable Service over the System and directly or through one or more Affiliates
owns a significant interest in such System or who otherwise control(s) or is (are)
responsible for, through any arrangement, the management and operation of the System.
“Cable Service” means the one-way transmission to Subscribers of Video Programming,
or other programming service and Subscriber interaction, if any, which is required for the
selection or use of such Video Programming or other programming service.
“Channel” means a portion of the electromagnetic frequency spectrum that is used in a
Cable System and that is capable of delivering or carrying a television channel (as
television channel is defined by the FCC Regulations or as described as Video
Programming Services).
“Town” or “Grantor” means the Town of Estes Park, Colorado.
“Designated Access Provider” means the entity or entities designated by the Grantor to
manage or co-manage Educational or Governmental Access Channels and facilities. The
Grantor may be a Designated Access Provider.
“Downstream Channel” means a Channel capable of carrying a transmission from the
4
Headend to remote points on the System or to Interconnection points on the System.
“Dwelling Unit” means any building or portion thereof that has independent living
facilities, including provisions for cooking, sanitation and sleeping, and that is designed
for residential occupancy.
“Expanded Basic Service” means the level of cable programming services received by
most Subscribers above Basic Service and does not include premium, or pay-per-view
services.
“FCC” means the Federal Communications Commission or its lawful successor.
“Fiber Optic” means a transmission medium of optical fiber cable by means of electric
lightwave pulses.
“GAAP” means generally accepted accounting principles.
“Generally Applicable” means when referenced to ordinances, laws or regulations, legal
obligations that are applied generally and not solely limited to Grantee.
“Gross Revenues” means any and all revenue derived directly or indirectly by Grantee, or
by Grantee’s Affiliates or by any other entity that is a Cable Operator of the Cable
System including Grantee’s Affiliates as determined in accordance with GAAP, from the
operation of the Grantee’s Cable System to provide Cable Services in the Agreement
Area. Gross Revenues include, by way of illustration and not limitation, monthly and
other fees charged Subscribers for Cable Services including Basic Service, Expanded
Basic Service, any expanded Tiers of Cable Service, other Tiers of Cable Service,
optional Premium Service, pay-per-view and per-program Channels, Cable Service
installation, disconnection, reconnection and change-in-service fees, Leased Access
Channel fees, digital revenues, remote control rental fees, all Cable Service lease
payments from the Cable System, late fees and administrative fees, fees, payments,
consideration received by the Grantee from programmers for carriage of Cable Services
on the Cable System and recognized as revenue under generally accepted accounting
principles (GAAP), revenues from rentals of converters or other Cable System
equipment, net advertising sales revenues (including local, regional and a pro rata share
of national advertising carried on the Cable System in the Agreement Area), the fair
market value of consideration received by the Grantee for use of the Cable System to
provide Cable Service and accounted for as revenue under GAAP, revenues from
program guides, additional outlet fees, Agreement Fees, revenue from the sale or carriage
of other Cable Services, and revenues from home shopping. Gross Revenues shall
include revenue received by any entity other than the Grantee where necessary to prevent
evasion or avoidance of the obligation under this Agreement to pay the Agreement Fees.
Gross Revenues shall not include (i) Bad Debt, provided, however, that all or part of any
such Bad Debt that is written off but subsequently collected shall be included in Gross
Revenues in the period collected; or (ii) any taxes on services furnished by the Grantee
that are imposed directly on any Subscriber or user by the State, Town or other
governmental unit and that are collected by the Grantee on behalf of said governmental
5
unit including the FCC User Fee. The Agreement Fees are not a tax, and are therefore
included in Gross Revenues. Subject to Federal law, all Agreement Fees may be passed
through to Subscribers.
“Headend” or “Hub” means any Facility for signal reception and dissemination on the
System, including cable, antennas, wires, satellite dishes, monitors, switchers,
modulators, processors for Broadcast Signals or other signals, and other related
equipment and facilities for the Interconnection of the System with adjacent Systems and
Interconnection of any networks that are part of the System, and all other related
equipment and Facilities.
“Interconnect” or “Interconnection” means the linking of Access Channels with Access
Channels carried on a geographically contiguous Cable System, including technical,
engineering, physical, financial and other necessary components to accomplish, complete
and adequately maintain such linking, in a manner to permit the transmission and
receiving of electronic or optical signals between the System and other Systems; or to
permit the necessary components to accomplish, complete and adequately maintain
pathways that permit the transmission and receiving of electronic or optical signals
between locations connected to portions of the System outside the Agreement Area and
those portions of the System inside the Agreement Area.
“Leased Access Channel” means any Channel or portion of a Channel commercially
available for programming in accordance with Section 612 of the Cable Act.
“Locally Scheduled Original Programming” means Government Access or Educational
Access programming that is created by the Town or any School, Fire District, Library
District or Local Marketing District including edited coverage of live programming.
Such Locally Scheduled Original Programming shall not be considered as qualifying as
such after three (3) cablecasts (initial, first repeat and second repeat). Automated Video
Programming filler, such as cablecasts of highways and roads, does not constitute
Locally Scheduled Original Programming that qualifies herein.
“Noncommercial” means those products and services that are not promoted or sold. This
term shall not be interpreted to prohibit an Access Channel operator or programmer from
soliciting and receiving financial support to produce and transmit Video Programming on
an Access Channel, or from acknowledging a contribution, in the manner of the
Corporation for Public Broadcasting or some similar manner, subject to applicable law.
“Normal Business Hours” means those hours during which most similar businesses in the
community are open to serve Customers.
“Normal Operating Conditions” means those service conditions that are within the
control of the Grantee. Those conditions that are not within the control of the Grantee
include, but are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions. Those conditions
that are ordinarily within the control of the Grantee include, but are not limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods
6
and maintenance or upgrade of the System.
“Pay Service” or “Premium Service” means Video Programming or other programming
service choices (such as movie Channels or pay-per-view programs) offered to
Subscribers on a per-Channel, per-program or per-event basis.
“Person” means any natural person, sole proprietorship, partnership, joint venture,
association, or limited liability entity or corporation, or any other form of entity or
organization.
“Residential Subscriber” means any Person who lawfully receives Cable Service
delivered to Dwelling Units or multiple Dwelling Units, excluding such multiple
Dwelling Units billed on a bulk billing basis.
“Rights-of-Way” means land acquired or dedicated to the public or are hereafter acquired
or dedicated to the public and maintained under public authority or by others, including
but not limited to public streets or roads, highways, avenues, lanes, alleys, bridges,
sidewalks and areas behind sidewalks, easements, wash parcels, drill sites, dedicated
utility strips and similar public property or other property dedicated for compatible uses
now or hereafter held by the Grantor within the Agreement Area which shall entitle the
Grantee to the use thereof for the purpose of installing, operating, repairing and
maintaining the Cable System.
“School” means any State accredited K-12 public and private educational institutions
excluding home schools.
“Service Interruption” means the loss of picture or sound on one or more cable Channels.
“State” means the State of Colorado.
“Subscriber” or “Customer” means any Person who lawfully receives Cable Services
provided by Grantee by means of the System with Grantee’s express permission.
“System” or “Cable System” means a facility, consisting of a set of closed transmission
paths and associated signal generation, reception and control equipment that is designed
to provide Cable Service that includes Video Programming and that is provided to
multiple Subscribers within a community, but such term does 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 Subscribers without using any public right-of-way; (3) a
facility of a common carrier that is subject, in whole or in part, to the provisions of
Title II of the federal Communications Act (47 U.S.C. Section 201 et seq.), except that
such facility shall be considered a cable system (other than for purposes of Section 621(c)
(47 U.S.C. Section 541(c)) to the extent such facility is used in the transmission of Video
Programming directly to Subscribers, unless the extent of such use is solely to provide
interactive on-demand services; (4) an open video system that complies with 47 U.S.C.,
Section 573 of the Cable Act; or (5) any facilities of any electric utility used solely for
operating its electric utility systems. When used herein, the term “Cable System” or
7
“System” shall mean Grantee’s Cable System in the Agreement Area unless the context
indicates otherwise.
“Tier” means a category of Cable Services provided by the Grantee for which a separate
rate is charged.
“Video Programming” means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
SECTION 2. GRANT OF AGREEMENT
2.1 Grant
(A) Grantor hereby grants to Grantee a nonexclusive authorization to make
reasonable and lawful use of the Rights-of-Way within the Agreement Area to construct,
operate, maintain, reconstruct, repair and upgrade a System for the purpose of providing
Cable Services, subject to the terms and conditions set forth in this Agreement and
applicable law. This Agreement shall constitute a right, consistent with Section 13.1 to
provide the Cable Services required by, and to fulfill the obligations set forth in, the
provisions of this Agreement.
(B) The Grantee, through this Agreement, is granted the right to operate its
System using the Grantor’s Rights-of-Way within the Agreement Area in compliance
with all lawfully enacted Generally Applicable construction codes and regulations. The
Grantee specifically agrees to comply with the lawful provisions of Generally Applicable
Town ordinances provided that in the event of a conflict between the provisions of
ordinances and the Agreement, the express provisions of the Agreement shall govern.
Subject to federal and State preemption, the express provisions of this Agreement
constitute a valid and enforceable contract between the parties. This Agreement may not
be unilaterally altered by the Grantor through subsequent amendment to any ordinance,
rule, regulation, resolution, or other enactment of Grantor, except in the lawful exercise
of Grantor’s police power. Grantee reserves the right to challenge provisions of any
ordinance, rule, regulation, resolution or other enactment of the Grantor that conflicts
with its contractual rights under this Agreement, either now or in the future.
(C) This Agreement shall not be interpreted to prevent the Grantor from
imposing other conditions, to the extent permitted by law, including additional
compensation conditions for use of the Rights-of-Way, should Grantee provide service
other than Cable Service.
(D) No rights shall pass to Grantee by implication. Without limiting the
foregoing, by way of example and not limitation, this Agreement shall not include or be a
substitute for:
(1) Any other permit or authorization of General Applicability
required for the privilege of transacting and carrying on a business within the Town that
may be required by the ordinances and laws of the Town. Grantee shall pay permit fees
and inspection fees as required by the Town from businesses in the regular course of
8
business.
(2) Any permit, agreement or authorization of General Applicability
required by the Town for Rights-of-Way users in connection with operations on or in
Rights-of-Way or public property including, by way of example and not limitation, street
cut permits; or
(3) Any permits or agreements of General Applicability for occupying
any other property of the Town or private entities to which access is not specifically
granted by this Agreement including, without limitation, permits and agreements for
placing devices on poles, in conduits or in or on other structures.
(E) This Agreement is intended to convey limited rights and interests only as
to those Rights-of-Ways in which the Grantor has an actual interest. It is not a warranty
of title or interest in any Rights-of-Way; it does not provide the Grantee with any interest
in any particular location within the Rights-of-Way; and it does not confer rights other
than as expressly provided in the grant hereof.
(F) This Agreement is an express authorization to provide Cable Services only
and does not authorize, prohibit or condition Grantee’s provision of non-Cable Services,
telecommunications services or information services in the Agreement Area. This
Agreement is not a bar to the imposition of any lawful conditions on Grantee with respect
to non-Cable Services, telecommunications services or information services, whether
similar, different or the same as the condition specify herein. This Agreement does not
relieve Grantee of any obligation it may have to obtain from the Town an authorization to
provide non-Cable Services, telecommunications services or information services or
relieve Grantee of its obligation to comply with any such authorization(s) that may be
lawfully required. However, this Agreement shall not be read as a concession by Grantee
that it needs authority to provide non-Cable Services, telecommunications services or
information services.
2.2 Use of Rights-of-Way
(A) Grantee may erect, install, construct, repair, replace, reconstruct, and
retain in, on, over, under, upon, across, through, below and along the Rights-of-Way
within the Agreement Area, such wires, cables (both coaxial and Fiber Optic),
conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, pedestals,
attachments and other property and equipment as are necessary and appurtenant to the
operation of a System for the provision of Cable Services within the Agreement Area.
(B) Grantee must install System facilities in a manner that minimizes
interference with the use of the Rights-of-Way by others including others that may be
installing communications facilities. Grantee shall comply with all Generally Applicable
construction codes, laws, ordinances, regulations and procedures and must obtain any and
all necessary permits from the Town prior to commencing any construction activities.
2.3 Duration
The term of this Agreement and all rights, privileges, obligations and restrictions
9
pertaining thereto shall commence upon the effective date hereof and shall expire on
December 10, 2022 unless lawfully terminated sooner as hereinafter provided.
2.4 Effective Date
(A) This Agreement and the rights, privileges, and authority granted hereunder
and the contractual relationship established hereby shall take effect and be in force from
and after the effective date of this Agreement as specified in this Section.
(B) The effective date of this Agreement shall be three business days after its
adoption.
(C) The grant of this Agreement shall have no effect on the Grantee’s duty
under the Permit or any ordinance in effect prior to the effective date of this Agreement
to indemnify or insure the Grantor against acts and omissions occurring during the period
that the prior Permit was in effect, nor shall it have any affect upon liability to pay all
Agreement Fees (for any prior years) that were due and owed under a prior Permit.
2.5 Agreement Nonexclusive
This Agreement shall be nonexclusive, and subject to all prior rights, interests,
easements, or agreements granted by Grantor or its predecessors to any Person to use
any property, Right-of-Way, easement, right, interest for any purpose whatsoever,
including the right of Grantor to use same for any purpose it deems fit, including the
same or similar purposes allowed Grantee hereunder. Grantor may at any time grant
authorization to use the Rights-of-Way for any purpose not incompatible with Grantee’s
authority under this Agreement and for such additional Agreements for Cable Systems as
Grantor deems appropriate subject to Section 2.6 below.
2.6 Grant of Other Agreements
In the event Grantor enters into an agreement, permit, , authorization or other agreement
of any kind with any other Person or entity other than the Grantee, including itself, to
enter into the Grantor’s streets or Rights-of-Way for the purpose of constructing or
operating a wireline System or providing wireline Cable Service to the Agreement Area
in which the Grantee is providing Cable Service under the terms and conditions of this
Agreement or is required to extend Cable Service under the provisions of this Agreement
and if another cable operator offers Cable Service in the Agreement Area served by
Grantee then at Grantee’s request, Grantor shall agree to amend this Agreement, on a
going-forward basis only, for the limited purpose of ensuring that the material terms and
conditions herein (unless prohibited by operation of law, regulation or FCC Order) shall
be reasonably comparable and shall be neither more favorable nor less burdensome than
those governing the other cable operator, in order that one wireline cable operator not be
granted an unfair competitive advantage over another.
2.7 Familiarity with Agreement
The Grantee acknowledges and warrants by acceptance of the rights, privileges and
agreement granted herein, that it has carefully read and fully comprehends the terms and
conditions of this Agreement and is willing to and does accept all reasonable risks of the
meaning of the provisions, terms and conditions herein.
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2.8 Effect of Acceptance
By accepting the Agreement, the Grantee: (1) acknowledges and accepts the Grantor’s
legal right to issue and enforce the Agreement; (2) accepts and agrees to comply with
each and every provision of this Agreement subject to applicable law; and (3) agrees that
the Agreement was granted pursuant to processes and procedures consistent with
applicable law, and that it will not raise any claim to the contrary.
2.9 Police Powers
Grantee’s rights hereunder are subject to the lawful police powers of Grantor to adopt
and enforce ordinances necessary to the safety, health and welfare of the public, and
Grantee agrees to comply with all Generally Applicable laws, ordinances and regulations
lawfully enacted pursuant to the police powers of Grantor, or hereafter enacted in
accordance therewith, by Grantor or any other legally constituted governmental unit
having lawful jurisdiction over the subject matter hereof. The Town reserves the right to
exercise its lawful police powers, notwithstanding anything in this Agreement to the
contrary. Grantee reserves the right to challenge provisions of any ordinance, rule,
regulation, resolution or other enactment of the Grantor that conflicts with its contractual
rights either now or in the future.
SECTION 3. AGREEMENT FEE AND FINANCIAL CONTROLS
3.1 Agreement Fee
As compensation for the use of Grantor’s Rights-of-Way, Grantee shall pay as an
Agreement Fee to Grantor, throughout the duration of this Agreement, an amount equal
to five percent (5%) of Grantee’s Gross Revenues. Accrual of such Agreement Fee shall
commence as of the effective date of this Agreement, but shall not be paid to the Town
until the next required filing.
3.2 Payments
Grantee’s Agreement Fee payments to Grantor shall be computed quarterly for the
preceding calendar quarter ending March 31, June 30, September 30, and December 31.
Each quarterly payment shall be due and payable no later than forty-five (45) days after
said dates.
3.3 Acceptance of Payment
No acceptance of any payment shall be construed as an accord by Grantor that the
amount paid is, in fact, the correct amount, nor shall any acceptance of payments be
construed as a release of any claim Grantor may have for further or additional sums
payable or for the performance of any other obligation of Grantee. The period of
limitation for recovery of Agreement Fees payable hereunder shall be three (3) years
from the date on which payment by the Grantee was due.
3.4 Quarterly Agreement Fee Reports
Each payment shall be accompanied by a written report to Grantor verified by an
authorized representative of Grantee, containing an accurate statement in summarized
form, as well as in detail, of Grantee’s Gross Revenues and the computation of the
payment amount. Such reports shall detail all Gross Revenues of the System and shall be
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drafted in accordance with GAAP. The Grantee shall file annually with the Town an
audited financial report including an income statement applicable to Grantee’s total
Cable System operations for the preceding 12 month period and a balance sheet. This
shall be submitted along with such other reasonable information as the Town may
reasonably request with respect to Grantee’s revenues and expenses related to its Cable
System operations within the Town.
3.5 Audits
On a maximum annual basis, upon thirty (30) days’ prior written notice, Grantor shall
have the right to conduct an independent audit of Grantee’s records regarding Gross
Revenues reasonably related to the enforcement of this Agreement and to calculate any
amounts determined to be payable under this Agreement. Provided Grantee cooperates in
making all relevant records available upon reasonable advance written request, Grantor
will in good faith attempt to complete each audit within six (6) months, and the audit
period shall not be any greater than the previous three (3) years. Any additional amounts
due to the Grantor as a result of the audit shall be paid within ninety (90) days following
written notice to the Grantee by the Grantor, which notice shall include a copy of the
audit findings, and Grantee’s agreement that the audit findings are correct. If an
undisputed Agreement Fee underpayment is discovered as the result of an audit, Grantee
shall pay, in addition to the amount due, interest at the rate of one and one-half percent
(1 ½ %) per month calculated from the date the underpayment was originally due until
the date the Town receives the payment. If the audit shows that Agreement Fees have
been underpaid, by five percent (5%) or more in a calendar year, Grantee shall pay the
reasonable cost of the audit such cost for the entire audit not to exceed $2,500.
3.6 Financial Records
Grantee agrees to meet with a representative of the Grantor upon request to review
Grantee’s methodology of record-keeping, financial reporting, the computing of
Agreement Fee obligations and other procedures, the understanding of which the Grantor
deems necessary for reviewing reports and records that are relevant to the enforcement of
this Agreement. The parties shall use best efforts to conduct such meetings
telephonically.
3.7 Interest on Late Payments
In the event any payment is not received within forty five (45) days from the end of the
calendar quarter, Grantee shall pay, in addition to the payment or sum due, interest on the
amount due at the rate of one and one-half percent (1 ½%) per month on the date the
payment was due, calculated from the date the payment was originally due until the date
the Town receives the payment.
3.8 Additional Commitments Not Agreement Fees
No term or condition in this Agreement shall in any way modify or affect Grantee’s
obligation to pay Agreement Fees. Although the total sum of Agreement Fee payments
and additional commitments set forth elsewhere in this Agreement may total more than
five percent (5%) of Grantee’s Gross Revenues in any 12-month period, Grantee agrees
that the additional commitments regarding PEG funding and Access Channels are
excluded from the definition of Agreement Fees herein and are not Agreement Fees, nor
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are they to be offset or credited against any Agreement Fee payments due to Grantor, nor
do they represent an increase in Agreement Fees to be passed through to Subscribers
pursuant to any federal law. Access Fees are not to be offset against and are not
Agreement Fees so long as and to the extent that the Access Fees are used for PEG
Access Capital Support or as otherwise permitted under Section 9.7. The Grantee agrees
not to assert or otherwise claim at any time before any court of competent jurisdiction or
any administrative agency that, as of the effective date of this Agreement, that such PEG
funding and Access Channels are Agreement Fees as defined under federal or State law
or regulations so as to form the basis for offset or credit against any and or all Agreement
Fee payments paid or due to the Town.
Furthermore, Grantor and Grantee agree that any utility tax, business and occupation tax
or similar tax of General Applicability shall be in addition to any Agreement Fees
required herein and there shall be no offset against Agreement Fees for any utility tax,
business and occupation tax or similar tax, subject to applicable law.
3.9 Payment on Termination
If this Agreement terminates for any reason, the Grantee shall file with the Grantor
within one hundred twenty (120) calendar days of the date of the termination, a financial
statement, certified by an independent certified public accountant, showing the Gross
Revenues received by the Grantee since the end of the previous fiscal year. Within forty
five (45) days of the filing of the certified statement with the Grantor, Grantee shall pay
any unpaid amounts as indicated. If the Grantee fails to satisfy its remaining financial
obligations as required in this Agreement, the Grantor may do so by utilizing the funds
available in a Letter of Credit or other security provided by the Grantee.
3.10 Bundling
Grantor acknowledges that, during the term of this Agreement, Grantee may offer to its
Subscribers, at a discounted rate, a bundled or combined package of services consisting
of Cable Services, which are subject to the Agreement Fee referenced above in section
3.1, and other services that are not subject to that Agreement Fee. To the extent discounts
reduce revenues includable for purposes of calculating Agreement Fees, the Grantee may
not unfairly or unlawfully allocate discounts for bundled services for the purpose of
evading payment of Agreement Fees to the Town. If a dispute arises between the parties
regarding this matter, Grantor and Grantee will meet within ten (10) days notice and
discuss such matters in good faith in an attempt to reach a reasonable compromise
thereof.
3.11 Tax Liability
The Agreement Fees shall be in addition to any and all taxes or other levies or
assessments which are now or hereafter required to be paid by businesses in general by
any law of the Town, the State or the United States including, without limitation, sales,
use, utility and other taxes, business license fees or other payments. Payment of the
Agreement Fees under this Agreement shall not exempt Grantee from the payment of any
other license fee, permit fee, tax or charge on the business, occupation, property or
income of Grantee that may be lawfully imposed by the Town. Any other license fees,
taxes or charges shall be of General Applicability in nature and shall not be levied against
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Grantee solely because of its status as a Grantee or against Subscribers solely because of
their status as such.
SECTION 4. ADMINISTRATION AND REGULATION
Grantor shall be vested with the power and right to administer and enforce the
requirements of this Agreement and the regulations and requirements of applicable law,
including the Cable Act, or to delegate that power and right of administration, or any part
thereof, to the extent permitted under federal, State and local law, to any agent in the sole
discretion of the Town provided, however, that Grantee shall have the right to appeal to
the Town Board any adverse determination made by a delegate of the Town.
4.1 No Rate Discrimination
All Grantee rates and charges shall be published (in the form of a publicly-available rate
card), and shall be non-discriminatory as to all Persons of similar classes, under similar
circumstances and conditions. Grantee shall apply its rates in accordance with governing
law. Nothing herein shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction
with promotional campaigns;
(B) The offering of reasonable discounts including in response to competition
within the Agreement Area to similarly situated Persons;
(C) The offering of rate discounts for either Cable Service generally; or
(D) The offering of bulk discounts for Multiple Dwelling Units.
4.2 Filing of Rates and Charges
(A) Throughout the term of this Agreement, Grantee shall, if requested by
Grantor and if not otherwise available to Grantor via the Internet, maintain on file with
Grantor a complete schedule of applicable rates and charges for Cable Services provided
under this Agreement. Nothing in this subsection shall be construed to require Grantee to
file rates and charges under temporary reductions or waivers of rates and charges in
conjunction with promotional campaigns. As used in this subsection, no rate or charge
shall be considered temporary if Subscribers have the ability over a period greater than
twelve (12) consecutive months (or such other period as may be approved by Grantor) to
purchase Cable Services at such rate or charge.
4.3 Performance Evaluation
(A) Special evaluation sessions may be held by Grantor during the term of this
Agreement within thirty (30) days of the Grantor’s written request to Grantee, but no
more often than once every two years.
(B) All evaluation sessions shall be open to the public and announced at least
one week in advance in a newspaper of general circulation in the Agreement Area.
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(C) Topics that may be discussed at any evaluation session may include, but
are not limited to, Cable Service rates; Agreement Fees; liquidated damages; free or
discounted Cable Services; application of new technologies; System performance; Cable
Services provided; programming offered; Customer complaints; privacy; amendments to
this Agreement; judicial and FCC rulings; line extension policies; and Grantor’s or
Grantee’s rules; provided that nothing in this subsection shall be construed as requiring
the renegotiation of this Agreement or any term or provision therein.
4.4 Leased Access Channel Rates
Grantee shall offer Leased Access Channel capacity on such terms and conditions and
rates as may be negotiated with each lessee subject to the requirements of Section 612 of
the Cable Act.
4.5 Late Fees
(A) For purposes of this subsection, any assessment, charge, cost, fee or sum,
however, characterized, that the Grantee imposes upon a Subscriber solely for late
payment of a bill is a late fee and shall be applied in accordance with applicable local,
State and federal laws.
(B) The Grantee’s late fee and disconnection policies and practices shall be
nondiscriminatory, and such policies and practices, and any fees imposed pursuant to this
subsection, shall apply equally in all parts of the Agreement Area without regard to the
neighborhood or income level of the subscribers.
(C) Nothing in this subsection shall be deemed to create, limit or otherwise
affect the ability of the Grantee to impose other assessments, charges, fees or sums for
the Grantee’s other services or activities it performs in compliance with applicable law
including FCC law, rule or regulation.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
(A) General Indemnification. Grantee shall indemnify, defend and hold
Grantor, its officers, officials, boards, commissions, authorized agents and employees,
and self-insurance pool harmless from any action or claim for injury, damage, loss,
liability, cost or expense, including court and appeal costs and attorneys’ fees and
expenses, arising from any casualty or accident to Person or property, including, without
limitation, copyright infringement, defamation, and all other damages in any way arising
out of, or by reason of, any construction, excavation, operation, maintenance,
reconstruction, or any other act done under this Agreement, by or for Grantee, its
authorized agents, or its employees; provided however Grantee shall not be obligated to
indemnify or defend any claim or action arising from or related to the negligence or
willful misconduct of indemnified parties or arising from or related to the operation or
use of the Access Channels by Governmental or Educational personnel. Grantee shall
consult and cooperate with the Grantor while conducting its defense of the Grantor.
(B) Indemnification for Relocation. Subject to applicable law, Grantee shall
indemnify Grantor for any damages, claims, additional costs or expenses assessed
15
against, or payable by, Grantor related to, arising solely out of, or resulting solely from
Grantee’s failure to remove, adjust or relocate any of its facilities in the streets in a timely
manner in accordance with any relocation required by Grantor to the extent that Grantee
is lawfully required to pay relocation costs.
(C) Exceptions. Grantee will not be required to indemnify the indemnified
parties or any third party for any claims arising out of the use of Access Channels by the
Grantor and/or its Designated Access Providers or use by the Grantor of the Emergency
Alert System.
(D) Additional Circumstances. Grantee shall also indemnify, defend and hold
Grantor harmless for any claim for injury, damage, loss, liability, cost and expense,
including court and appeal costs and attorneys’ fees and expenses in any way arising out
of any failure by Grantee to secure consents from the owners, authorized distributors or
franchisees/licensors of programs to be delivered by the System.
(E) Procedures and Defense. If a claim or action arises, Grantor or any other
indemnified party shall promptly tender the defense of the claim or action to Grantee,
which defense shall be at Grantee’s expense. Grantor may participate in the defense of a
claim at its own expense and, in any event, Grantee may not agree to any settlement of
claims financially affecting Grantor without Grantor’s written approval that shall not be
unreasonably withheld.
(F) Duty of Defense. The fact that Grantee carries out any activities under
this Agreement through independent contractors shall not constitute an avoidance of or
defense to Grantee’s duty of defense and indemnification under this Section.
(G) Duty to Give Notice. The Grantor shall give the Grantee timely written
notice of any claim or of the commencement of any action, suit or other proceeding
covered by the indemnity in this Section. In the event any such claim arises, the Grantor
or any other indemnified party shall tender the defense thereof to the Grantee, and the
Grantee shall have the obligation and duty to defend any claims arising thereunder and
the Grantor shall cooperate fully therein.
(H) Separate Representation. If separate representation to fully protect the
interests of both parties is necessary, such as a conflict of interest between the Grantor
and the counsel selected by Grantee to represent the Grantor, Grantor may participate at
its own expense. Grantee shall pay attorneys’ fees and expenses incurred by the Grantor
in defending itself with regard to any action, suit or proceeding indemnified by Grantee.
The Grantor’s fees and expenses shall include all reasonable out-of-pocket expenses,
such as outside counsel fees, and shall also include the reasonable value of any services
rendered by the Town Attorney or his/her assistants or any employees of the Grantor or
its agents but shall not include outside attorneys’ fees or consultant fees for services that
are unnecessarily duplicative of services provided the Grantor by Grantee.
(I) During the period while Grantee owned the System, the grant of this
Agreement shall have no effect on the Grantee’s duty under the Permit to indemnify or
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insure the Town against acts and omissions involving third parties occurring during the
period that the Permit was in effect, nor shall it have any effect upon Grantee’s liability
to pay all Agreement Fees which were due and owed under the Permit.
(J) Colorado Government Immunity. The parties hereby agree and affirm that
nothing in this Agreement shall be deemed a waiver of the defenses and limitations of the
Colorado Governmental Immunity Act, Section 24-10-101 C.R.S., et seq. or any
immunities, limitations or defenses otherwise provided to the Town under federal or state
law and shall not be deemed to confer any benefits to any Person or entity not a party to
this Agreement.
5.2 Insurance Requirements
(A) General Requirement. Grantee shall at its own expense purchase and
maintain the minimum insurance required herein with companies duly franchised or
licensed to do business in the State of Colorado. Said insurance shall possess a current
A.M. Best, Inc. rating of A-VI or better.
Said insurance shall be maintained in full force and effect until all work required to be
performed under the terms of this Agreement is satisfactorily completed.
Grantee solely shall be responsible for deductibles and/or self-insured retention.
(B) Minimum Insurance Limits. Grantee must maintain during the Agreement
term insurance in effect in accordance with the minimum insurance limits herein set
forth by the Grantor. The Grantee shall provide a certificate of insurance for the
following Minimum insurance limits:
(1) Commercial General Liability: One Million Dollars with Two Million
Dollars ($2,000,000) aggregate limit per occurrence for bodily injury, personal injury and
property damage and Two million dollars ($2,000,000) products and completed
operations;
(2) Automobile Liability: One million dollars ($1,000,000) combined single
limit per accident for bodily injury and property damage; and
(3) Employer’s Liability: One hundred thousand dollars ($100,000).
(4) Umbrella Liability Insurance in the amount of Three Million Dollars
($3,000,000).
(5) Workers Compensation Insurance in accordance with State law
requirements.
(6) Grantee shall be responsible for judgments, settlements, damages, costs,
attorneys’ fees and expenses that exceed limits of Grantee’s insurance coverage.
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Endorsements.
(1) All policies shall contain, or shall be endorsed so that:
(a) The Grantor shall be designated as additional insured except
under the Employer’s Liability and Worker’s Compensation.
(2) The insurance shall provide that the insurance shall
not be cancelled or materially altered so as to be out of compliance with the
requirements of this Section without thirty (30) days written notice first being
given to Grantor.
5.3 Security
(A) Grantee shall provide, subject to the requirement of Subsection 5.3 (B)
below a Performance Bond in the amount of five thousand dollars ($5,000) to ensure the
faithful performance of its responsibilities under this Agreement and applicable law,
including, by way of example and not limitation, its obligations to relocate and remove
its facilities and to restore Town Rights-of-Way and other property. Grantee may be
required to obtain additional bonds, such as generally applicable Construction Bonds, in
accordance with the Town’s ordinary practices. The Construction Bond and Performance
Bond shall be in a form reasonably acceptable to the Town’s Risk Manager. Grantee
shall pay all premiums or costs associated with maintaining the bond(s), and shall keep
the same in full force and effect at all times. Except as expressly provided herein, the
Grantee shall not be required to obtain or maintain other bonds as a condition of being
awarded the Agreement or continuing its existence. Grantee may substitute the
performance bond with a letter of credit or similar instrument in the amount of $5,000.00.
(B) If there is an uncured breach of a material provision of this Agreement or
pattern of repeated violations of any provision(s) of this Agreement, then the Town may
request and Grantee shall establish and provide, within thirty (30) days from receiving
notice from the Town, to the Town as security for the faithful performance by Grantee of
all of the provisions of this Agreement, a letter of credit from a financial institution
satisfactory to the Town or a Performance Bond in the amount of five thousand dollars
($5,000).
(C) After the giving of notice by the Town to Grantee, and expiration of any
applicable cure period, the letter of credit or performance bond may be drawn upon by
the Town for purposes that include, but are not limited to the following:
(1) Failure of Grantee to pay the Town sums due under the terms of
this Agreement;
(2) Reimbursement of costs borne by the Town to correct Agreement
violations not corrected by Grantee; and
(3) Monetary remedies or damages assessed against Grantee as
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provided in this Agreement.
(D) The Town shall give Grantee written notice of any withdrawal under this
subsection upon such withdrawal. Any such withdrawal must be after and subject to the
cure provisions provided in this Agreement. Within fifteen (15) days following receipt of
such notice, Grantee shall restore the letter of credit to the amount required under this
Agreement. Grantee’s maintenance of the letter of credit or performance bond shall not
be construed to excuse unfaithful performance by Grantee or limit the liability of Grantee
to the amount of the letter of credit or performance bond or otherwise limit the Town’s
recourse to any other remedy available at law or in equity.
(E) The letter of credit and bonds shall provide that the letter of credit and
bonds shall not be cancelled or materially altered so as to be out of compliance with the
requirements of this Section without thirty (30) days written notice first being given to
Grantor. If the letter of credit and bonds are cancelled or materially altered so as to be
out of compliance with the requirements of this Section within or beyond the term of this
Agreement, Grantee shall provide a replacement letter of credit and bonds. Grantee
agrees to maintain continuous uninterrupted letter of credit and bonds in the amounts
required as specified in this Agreement.
(F) Grantee shall have the right to appeal to the Town Board for
reimbursement in the event Grantee believes that the letter of credit was drawn upon
improperly. After a determination by the Town Board, Grantee shall also have the right
of judicial appeal if Grantee believes the letter of credit has not been properly drawn
upon in accordance with this Agreement. Any funds the Town erroneously or wrongfully
withdraws from the letter of credit shall be returned to Grantee with interest, from the
date of withdrawal at a rate equal one and one-half percent (1 ½%) per month.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
Grantee shall comply with Customer Service Standards as provided in FCC Standards 47
C.F.R. Sections 76.309, 76.1602, 76.1603 and 76.1619, and as they may be amended.
Additionally, Grantee shall provide its service under Normal Operating Conditions and
comply with Customer Service Standards as they exist on the date of adoption of this
Agreement, and as are currently contained in Exhibit I attached hereto and made a part
hereof. Grantee reserves the right to challenge any Customer Service Standard that it
believes is inconsistent with its rights under this Agreement.
6.2 Subscriber Privacy
Grantee shall comply with privacy rights of Subscribers in accordance with applicable
federal and State laws.
6.3 Customer Service Location(s)
Throughout the Agreement term, the Grantee must maintain a local office in the Town
where Customers may pay bills, pick up and drop off equipment and obtain information
related to services and products and speak with a Customer Service Representative. The
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office shall be open during Normal Business Hours, having a listed telephone number
and be so operated that complaints and requests for repair, service, or adjustments may be
received at any time. Grantee is encouraged but not required to provide a website
whereby Subscribers can request service credit and service information.
6.4 Customer Service Agreement and Manual
(A) Grantee shall provide to Subscribers an accurate, comprehensive service
agreement (currently called the work order) and Customer installation packet (currently
called the Install Packet) for use in establishing Subscriber service consistent with
Grantee’s standard operating practices.
(B) A copy of the installation packet shall be available at the Customer service
location as provided in this Agreement and shall be provided to each Subscriber at the
time of initial installation or Cable Service upgrade requiring a home visit by the Grantee
(excluding reconnections to the same Subscriber within twelve (12) months), and at any
time the packet is requested by the Subscriber. Within thirty (30) days following
material policy changes, information regarding the changes will be provided to
Subscribers.
SECTION 7. REPORTS AND RECORDS
7.1 Records
Upon thirty (30) days prior written notice, Grantor shall have access to, and the right to
inspect, any books and records of Grantee and its Affiliates that are reasonably related to
the enforcement of the terms of this Agreement. Such review shall be at the Grantee’s
business office during Normal Business Hours and on a nondisruptive basis. Such notice
shall specifically reference the section of the Agreement that is under review so that the
Grantee may organize the necessary books and records for easy access by the Grantor.
Grantee shall not be obligated to maintain any books or records for a period longer than
three (3) years, and in the case of Subscriber complaints, for a period of one (1) year, and
Grantee shall not deny Grantor access to any of Grantee’s records on the basis that
Grantee’s records are under the control of any parent corporation, Affiliated Entity or a
third party. Grantor may, in writing, request copies of any such records or books, and
Grantee shall provide such copies within thirty (30) days of the receipt of such request.
One copy of all reports and records required under this or any other Section shall be
furnished to Grantor at the sole expense of Grantee. If the requested books and records
are too voluminous, or for security reasons cannot be copied or removed, then Grantee
may request, in writing within ten (10) days of receipt of such request, that Grantor
inspect them at Grantee’s local offices. If any books or records of Grantee are not kept in
a local office and not made available in copies to Grantor upon written request as set
forth above, and if Grantor determines that an examination of such records is necessary
for the enforcement of this Agreement, then all reasonable travel expenses incurred in
making such examination shall be paid by Grantee.
7.2 Confidentiality
Notwithstanding anything to the contrary set forth in this Agreement, the Grantee shall
not be required to disclose information which it reasonably deems to be proprietary or
confidential in nature. Grantee shall not be required to provide Customer information in
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violation of Section 631 of the Cable Act or any other applicable federal or state privacy
law. For purposes of this Section, the terms “proprietary or confidential” include, but are
not limited to, information relating to the Cable System design, customer lists, marketing
plans, financial information unrelated to the calculation of Agreement Fees, or rates
pursuant to FCC rules or other information that is reasonably determined by the Grantee
to be competitively sensitive. Grantee may make proprietary or confidential information
available for inspection but not copying or removal by the Grantor’s representative.
7.3 Records Required
(A) Consistent with Section 7.1, Grantee shall at all times maintain:
(1) A full and complete set of plans, records and “route” maps showing the
location of all System equipment installed or in use in the Rights-of-Way, that are
generated in Grantee’s normal course of business;
(2) A copy of all FCC filings on behalf of Grantee, its parent corporations or
Affiliates that relate to the operation of the System in the Agreement Area
including any such filing that shows the Cable System or Grantee not to be in
compliance with FCC Standards or requirements;
(3) A list of Grantee’s Cable Services, rates and Channel line-ups;
(4) A compilation of Subscriber complaints, actions taken and resolution, and
a log of service calls.
7.4 Copies of Federal and State Reports
Upon reasonable written request, Grantee shall submit to Grantor copies of any pleading,
applications, notifications, communications and documents of any kind, submitted by
Grantee or its Affiliates to any federal, State or local courts, regulatory agencies and
other government bodies if such documents directly relate to the operations of Grantee’s
System within the Agreement Area. Grantee shall submit such documents to Grantor no
later than thirty (30) days after receipt of Grantor’s request. Grantee shall not claim
confidential, privileged or proprietary rights to such documents unless under federal,
State, or local law such documents have been determined to be confidential by a court of
competent jurisdiction, or a federal or State agency. With respect to all other reports,
documents and notifications provided to any federal, State or local regulatory agency as a
routine matter in the due course of operating Grantee’s System within the Agreement
Area, Grantee shall make such documents available to Grantor upon Grantor’s written
request.
7.5 Complaint File and Reports
Consistent with Section 7.1 herein, Grantee shall keep an accurate and comprehensive
compilation of any and all escalated written Customer complaints received from Grantor
and Grantee’s actions in response to those complaints, in a manner consistent with the
privacy rights of Subscribers. Upon reasonable written request of at least thirty (30) days
written notice, this file shall be made available to the Grantor during Normal Business
Hours. Upon written request, but no more often than once annually, Grantee shall
21
provide an executive summary report to the Town within thirty (30) days of Grantor’s
written request that shall include the nature and type of escalated Customer complaints
referred in writing by the Grantor to Grantee.
7.6 Inspection of Facilities and Annual Meeting
Grantor may inspect any of Grantee’s facilities and equipment located in the Rights-of-
Way or on other public property at any reasonable time during business hours upon at
least three (3) days notice, or, in case of emergency, upon demand without prior notice.
7.7 False Statements
Any intentional false or misleading statement or representation in any report required by
this Agreement shall be a material breach of this Agreement and may subject Grantee to
all remedies, legal or equitable, that are available to Grantor under this Agreement or
otherwise.
SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide at least the following initial broad categories of programming to
the extent such categories are reasonably available.
(A) Educational programming;
(B) News, weather and information;
(C) Sports;
(D) General entertainment including movies;
(E) Children, family oriented;
(F) Arts, culture and performing arts;
(G) Foreign language programming; and
(H) Science/documentary.
8.2 Deletion of Broad Programming Categories
Consistent with applicable law, Grantee shall not delete or so limit as to
effectively delete any broad category of programming within its control without prior
written notice to the Town.
8.3 Obscenity
Grantee shall comply with applicable laws related to obscenity.
8.4 Services for the Disabled
Grantee shall comply with the Americans With Disabilities Act and any amendments or
successor legislation thereto.
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8.5 Parental Control Device
Upon request by any Subscriber, Grantee shall make available at its regular and
nondiscriminatory charge a parental control or lockout device, traps or filters to enable a
Subscriber to prohibit viewing of a particular cable service during periods selected by the
Subscriber. Grantee shall inform its Subscribers of the availability of the lockout device
at the time of their initial subscription and periodically thereafter.
8.6 Complementary Cable Service The Grantee, upon request, shall provide without
charge, a Standard Installation and one outlet of Basic Service and Expanded Basic
Service to those Town buildings now existing or hereafter constructed within the
Agreement Area provided that the buildings are either owned and occupied or leased and
occupied by the Grantor, for any of its services or programs, fire station(s), police and
sheriff station(s), libraries and School(s) and including but not limited to, Town Hall, Fire
Department, Library District, Local Marketing District (Administrative Office), Senior
Center, Stanley Park (Administrative Building), Light & Power Shop, Fleet Building and
Water Shop, Visitor Center, Town Museum and Multiple Purpose Events Center and
provided further that they are already served or passed by the Grantee’s Cable System
and are within 125 aerial feet or sixty (60) underground feet (provided that this does not
require extensive boring or the use of costly construction equipment) (a Standard
Installation) of its Cable System, excluding those buildings or portions of buildings that
house or occupy prison/jail populations. Grantee shall maintain complementary Basic
and Expanded Basic Cable Service to one outlet for each conference room that is
currently served and those outlets currently provided in Town buildings. The Cable
Service described herein is a voluntary initiative of Grantee, and shall be provided
throughout the term of this Agreement so long as the buildings meet the above
requirements and unless or until Grantor requests that service be discontinued. The
Cable Service provided shall not be distributed beyond the originally installed outlet
without authorization from Grantee. Such installation shall not interfere with the
operation of Grantee’s Cable System. In the case of leased facilities leased by the Town
for administrative functions, the recipient of service is responsible for securing approval
for appropriate right of entry suitable to the Grantee in its reasonable discretion. The
Cable Service provided shall only be used for lawful purposes, shall not be used for
commercial purposes or to entertain public or private groups and shall not be located in
public waiting areas. The intent of the preceding provision is to ensure access to Cable
Services for the benefit of the Grantor and educational institutions. The Grantor shall
take reasonable precautions to prevent any use of the Grantee’s Cable System in any
manner that results in the inappropriate use thereof or any loss or damage to the Cable
System. To the extent not inconsistent with other provisions in this Agreement, the
Grantor shall hold the Grantee harmless from any and all liability or claims arising out of
the use of Cable Service at Town facilities and educational facilities required by this
Section. For new hookups, the Grantee shall not be required to provide an outlet to such
buildings where a non-Standard Installation is required, unless the Grantor or building
owner/occupant agrees to pay the incremental cost of any necessary Cable System
extension and non-Standard Installation. If additional outlets of Cable Service are
provided to such buildings beyond those required herein, the building owner/occupant
shall pay the usual installation and service fees associated therewith. Grantor shall notify
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Grantee if the Town ceases to occupy any facility or building where complimentary
Cable Service is provided.
SECTION 9. EDUCATIONAL AND GOVERNMENTAL ACCESS
9.1 Access Channels
Grantee shall continue at all times during the term of this Agreement to make available,
as part of the Basic Service package, at no additional charge, one Channel for Access
Channel Programming to be carried on the Cable System and shared with Larimer
County.
Permitted noncommercial uses of the Access Channel may include: (i) the identification
of financial supporters similar to what is provided on public broadcasting stations; or (ii)
the solicitation of financial support for the provision of Access Programming for
charitable, educational or governmental access purposes; or (iii) programming offered by
accredited, non-profit, educational institutions which may offer telecourses over an
access channel; or (iv) other permitted noncommercial uses allowed by federal or State
law.
Additionally, Grantee shall make available at no charge one (1) additional Channel
to be triggered for PEG programming in accordance with Section 9.2 herein.
In the event Grantee makes any change in the System and related equipment and facilities
or in signal delivery technology, which change directly or indirectly affects the signal
quality or transmission of any Access Channel programming or services, the Grantee
shall, at its own expense, take necessary technical steps, acquire new equipment, and in
addition, provide the necessary assistance and foregoing equipment so that the Access
facilities and equipment may be used as intended to ensure that delivery of Access Video
Programming signals is not diminished or adversely affected, including, among other
things, so that live and taped programming can be cablecast with as good or better signal
quality than existed prior to such change. For example, these provisions shall apply if
Basic Service on the Cable System is converted from an analog to a digital format, so that
Access Channels supplied to Grantee in analog format may be continued to be received
by Subscribers.
9.2 Triggers for Additional Access Channels
Pursuant to Section 9.1 (Access Channels), the Town may require Grantee to make
available one (1) additional activated Downstream Channel when the Access Channel
required by Section 9.1 is used for Locally Scheduled Original Programming (excluding
character generated and filler programming, e.g. NASA, AM/FM Radio Programming)
during fifty percent (50%) of the hours between 10:00 A.M. and 10:00 P.M., Monday
through Friday during any consecutive eight (8) week period, Grantee shall make
available, upon written request within six (6) months one additional Access Channel for
Access Programming purposes. Therefore, an average of six (6) hours of Locally
Scheduled Original Programming per day on a five day per week basis for an eight (8)
consecutive week period is required to trigger use of an additional Access Channel. The
programming of an additional Access Channel required herein must contain distinct and
non-repetitive programming of the other Access Channel.
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9.3 Management and Control of Access Channels
(A) Grantor may authorize Designated Access Providers to control, operate,
and manage the use of any and all Access facilities including, without limitation, the
programming of Access Channels. The Grantor or its designee may formulate rules for
the operation of the Access Channels, consistent with this Agreement. Nothing herein
shall prohibit the Grantor from authorizing itself to be a Designated Access Provider or
from assigning several Designated Access Providers with similar types of Governmental
or Educational programming to share Access Channel space consistent with local, State
and Federal law.
9.4 Underutilized Access Channels
Grantee and the Grantor agree that it is their mutual goal to fully and efficiently use the
Channel capacity of the Cable System, which may include allowing the Grantee to use
underutilized time on Access Channels. If Grantee believes that any Access Channel has
underutilized time, Grantee may file a request with the Grantor to use that time. The
Grantor shall render a decision regarding the matter within sixty (60) days of receiving
the request. Should the Grantor find that the Access Channel or portion of the Access
Channel may be used by the Grantee, then Grantee may begin using such time ninety
(90) days after receipt of the decision. If Grantor wants the time back on the Channel and
has a plan to use it, Grantee shall, within sixty (60) days’ notice of receiving the request,
return the time back to Grantor.
9.5 Access Channel Identification/Location/Relocation
Grantee will use commercially reasonable efforts to minimize the movement of Access
Channel assignments. Grantee shall provide to the Grantor a minimum of sixty (60) days
notice, and use commercially reasonable efforts to provide ninety (90) days notice, prior
to any relocation of its Access Channels, unless the change is required by federal law, in
which case Grantee shall give the Grantor the maximum notice possible. If the change is
not required by Federal Law, Grantee shall place notice of the change on its regular
monthly schedule. If a PEG Channel is going to be relocated or moved, it must be
located or relocated within the same channel grouping as broadcast channels.
In addition, Grantee shall provide Grantor with a total not to exceed one hundred (100)
thirty second (:30) promotional spots (“Spots”) on the System serving the Agreement
Area during a thirty (30) day period prior to the date of the change in the location of the
Access Channels. The number of Spots to be provided under this Section shall be
prorated with respect to any partial period less than thirty (30) days. Grantor or its
designee shall have sole responsibility to produce and deliver the Spots to Grantee on a
timely basis and in a cablecast-ready state. Such Spots shall promote the Access
Channels and the Channel relocations only for the sole purpose of notifying Subscribers
of the change in Channel designations, and shall not include any mention of third party or
other sponsors. Placement of the Spots shall be made by the Grantee on a run-of
schedule basis. All Spots are subject to Grantee’s approval; such approval not to be
unreasonably withheld or delayed. Any new Channel designations for the Access
Channels provided pursuant to this Agreement shall be in full compliance with FCC
signal quality and proof-of-performance standards.
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9.6 Access Interconnections
(A) The Access Channels required by this Agreement shall be Interconnected
with the Access Channels of geographically adjacent Cable Systems that are owned and
operated by Grantee or an Affiliate of Grantee but not with the nonadjacent cable systems
of Grantee. Grantee shall take all necessary technical steps to ensure that downstream
transmissions provide an adequate signal quality in accordance with FCC regulations.
(B) Nothing in this section alters Grantee’s Channel obligations for Access
programming delivered to Subscribers within the Agreement Area. Unless the Grantor
directs otherwise, or an affected jurisdiction objects, any Interconnection shall allow
Access Channels to operate without disruption or delay across and within the Agreement
Area boundaries.
(C) It is not the Grantee’s responsibility to ensure that the signals provided to
the Interconnection by unaffiliated Interconnecting System meet industry standards.
(D) If any equipment and construction costs are borne by Grantee in
connection with the obligation to provide for Access Channel Interconnection the pro rata
share of same shall be considered a capital cost. Grantor agrees that such cost is an
“external cost” as such term is used in 47 C.F.R. Section 76.922(f) on the date of this
Agreement, and as such, the cost is permitted under federal law and regulation to be
passed through to Subscribers, to the extent and in a manner provided for in federal
regulations governing the same.
9.7 Support for Coverage of Governmental and Educational Programming
Grantor and Grantee acknowledge that in order to cover local Governmental and
Educational Programming which will be shown on the Access Channel on either a live or
taped replay basis, Grantor shall use its own personnel or contract with third parties to
provide the operational support to broadcast such programming. Therefore, throughout
the term of this Agreement, during years 1 through 5, Grantee shall reimburse Grantor at
the rate of $25.00/hour, for up to five hours per month, for the coverage of Town Board
Meetings, Planning Commission Meetings, Educational or similar such Meetings.
During years 6 through 10 of this Agreement, Grantee shall reimburse Grantor at the rate
of $30.00 dollars per hour for up to 5 hours per month for such coverage. Payment shall
be remitted by Grantee to Grantor within thirty (30) days of receipt of invoices by
Grantee.
9.8 Access Channels On Lowest Tier
All Access Channels provided to Subscribers under this Agreement shall be included by
Grantee, without limitation, on the lowest Tier of Cable Service offered by Grantee on its
System.
9.9 Technical Quality
The Grantee shall maintain all Access channels and Interconnections as required by FCC
standards and consistent with the quality and level with Grantee’s other Basic Service
Channels to the extent it is within the control of the Grantee. The Grantee shall provide
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routine maintenance and shall repair and replace, if necessary, any of Grantee’s
equipment required to carry a quality signal from the Access facilities provided under
this Agreement to Subscribers.
9.10 Return Lines
(A) Grantee shall continue to maintain a fiber-optic return line from the Town
to Grantee’s Hub so that there can be delivery of Access programming to Subscribers.
All other return line construction costs (other than maintaining the return line which is
currently in place) shall be paid by the Grantor at a cost mutually agreed to between the
Grantor and Grantee and shall be completed within six (6) months of request. Grantee
may require that a reasonable deposit of the estimated project cost be paid in advance.
(B) After satisfactory completion of work requested by the Grantor for which
the Grantor is to reimburse the Grantee and upon submission by Grantee, in such form as
may be requested by the Grantor, of a proper invoice for payment of the cost reasonably
incurred and accompanied by such evidence in support thereof as may be reasonably
required by the Grantor, the Grantor agrees to make payment for the cost reasonably
incurred up to the estimated cost for the work; provided, however, that all payments shall
be subject to adjustment for any amount found upon audit or otherwise to have been
improperly invoiced. All work shall be performed in a cost-effective manner to minimize
the costs to the Grantor.
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1 Construction
(A) Subject to Generally Applicable laws, regulations and ordinances of
Grantor and the provisions of this Agreement, Grantee shall perform all maintenance,
construction, repair, upgrade and reconstruction necessary in the Rights-of-Way for the
operation of its System. All construction and maintenance of any and all of Grantee’s
facilities within Rights-of-Way shall, regardless of who performs the construction, be and
remain Grantee’s responsibility. Grantee shall apply for, and obtain, all permits
necessary for construction or installation of any facilities and for excavating and laying
any facilities within the Rights-of-Way. Grantee shall pay all Generally Applicable fees
upon issuance of the requisite construction permits by Grantor to Grantee.
(B) Prior to beginning any construction, Grantee shall provide Grantor with
plans and a construction schedule for work in the Rights-of-Ways as required by
Grantor’s permitting regulations.
(C) Grantee may make excavations in Rights-of-Way for any facility needed
for the maintenance or extension of Grantee’s System. Prior to doing such work, Grantee
shall apply for, and obtain, appropriate permits from Grantor, and give appropriate
notices to Grantor. As a condition of any permits so issued, Grantor may impose such
Generally Applicable reasonable conditions and regulations as are necessary for the
purpose of protecting any structures in such Rights-of-Way, proper restoration of such
Rights-of-Way and structures, protection of the public and the continuity of pedestrian or
vehicular traffic. Whenever it is possible and reasonably practicable to joint trench or
share bores or cuts, Grantee shall work with other providers, and permittees so as to
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reduce so far as possible the number of Rights-of-Way cuts within the Agreement Area.
(D) In the event that emergency repairs are necessary, Grantee shall
immediately notify Grantor of the need for such repairs after such repairs are undertaken.
Grantee may initiate such emergency repairs, and shall apply for appropriate permits
within forty-eight (48) hours after discovery of the emergency.
10.2 Location of Facilities
Within three (3) business days, unless otherwise specified in federal, State or local
regulations, after the Grantor or any provider, or permittee of the Grantor notifies
Grantee of a proposed Right-of-Way excavation, Grantee shall, at Grantee’s expense:
(A) Mark on the surface all of its located underground facilities within the area
of the proposed excavation;
(B) Notify the excavator of any unlocated underground facilities in the area of
the proposed excavation; or
(C) Notify the excavator that Grantee does not have any underground facilities
in the vicinity of the proposed excavation.
10.3 Restoration of Rights-of-Way
(A) Whenever Grantee disturbs the surface of any Rights-of-Way for any
purpose, Grantee shall promptly restore the Rights-of-Way to a condition reasonably
comparable to the condition of the Rights-of-Way immediately prior to such disturbance
normal wear and tear excepted. When any opening is made by Grantee in a hard surface
pavement in any Rights-of-Way, Grantee shall promptly refill the opening and restore the
surface as required by its construction permit.
(B) If Grantee excavates the surface of any Rights-of-Way, Grantee shall be
responsible for restoration in accordance with applicable regulations regarding the
Rights-of-Way and its surface within the area affected by the excavation. Grantor may,
after providing reasonable notice to Grantee and giving Grantee sufficient opportunity to
fix the surface itself, refill or repave any opening made by Grantee in the Rights-of-Way,
and the reasonable expense thereof shall be paid by Grantee. Grantor may, after
providing reasonable notice to Grantee, and giving Grantee sufficient opportunity to fix
the work, remove and repair any work done by Grantee that, in the determination of
Grantor, does not conform to applicable code. The reasonable cost thereof, including the
costs of inspection and supervision shall be paid by Grantee. All excavations made by
Grantee in Rights-of-Way shall be properly safeguarded for the prevention of accidents.
All of Grantee’s work under this Agreement, and this Section in particular, shall be done
in compliance with all rules, regulations and ordinances of Grantor.
10.4 Maintenance and Workmanship
(A) Grantee’s System shall be constructed and maintained in such manner as
not to interfere with sewers, Sewer Districts, water pipes or any other property of
Grantor, or with any other pipes, wires, conduits, pedestals, structures or other facilities
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that may have been laid in Rights-of-Way by, or under, Grantor’s authority.
(B) Grantee shall provide and use any equipment and appliances necessary to
control and carry Grantee’s signals so as to prevent damage to Grantor’s property or
property belonging to any Person. Grantee, at its own expense, shall repair, renew,
change and improve its facilities to keep them in good repair and safe and presentable
condition.
(C) The Grantee’s transmission and distribution System, wires and
appurtenances shall be located, erected and maintained so as not to endanger or interfere
with the lives of Persons, or to unnecessarily hinder or obstruct the free use of Rights-of-
Way, alleys, bridges or other public property.
(D) Grantee will maintain membership in good standing with the Utility
Notification Center of Colorado, or other similar or successor organization designated to
coordinate underground equipment locations and installations. Grantee shall abide by
Colorado State’s “Underground Utilities” statutes and will further comply with and
adhere to local procedures, customs and practices relating to the one call locator service
program.
(E) Grantee shall give reasonable notice to private property owners of
construction work in adjacent Rights-of-Way.
10.5 Acquisition of Facilities
Upon Grantee’s acquisition of facilities in any Rights-of-Way, or upon the addition or
annexation to the Town of any area in which Grantee owns or operates any facility,
Grantee shall, at Grantor’s written request, submit to Grantor a statement describing all
facilities involved, whether authorized by agreement, permit, or other prior right, and
specifying the location of all such facilities to the extent Grantee has possession of such
information. Such facilities shall immediately be subject to the terms of this Agreement
to the extent that such facilities are consistent with the terms of this Agreement or can be
made consistent within a reasonable time.
10.6 Reservation of Rights-of-Way
Nothing in this Agreement shall prevent Grantor or public utilities from constructing any
public work or improvement. All such work shall be done insofar as practicable so as not
to obstruct, injure, or prevent the use and operation of Grantee’s Cable System
(A) Movement of System For and By Grantor.
The Grantor shall have the right to require Grantee to relocate, remove, replace, modify
or disconnect Grantee’s facilities and equipment located in the Rights-of-Way or on other
property of the Grantor in the event of an emergency or when necessary to protect or
further the health, safety or welfare of the general public and such work shall be
performed at Grantee’s expense consistent with applicable law. Except during an
emergency, Grantor shall provide reasonable notice to Grantee, not to be less than fifteen
(15) business days and allow Grantee the opportunity to perform such work.
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Following notice by the Grantor, Grantee shall remove, replace, relocate, modify or
disconnect any of its facilities or equipment within any Right-of-Way, or on any other
property of the Grantor, except that the Grantor shall provide at least ninety (90) days’
written notice of any major capital improvement project that would require the removal,
relocation, replacement, modification or disconnection of Grantee’s facilities or
equipment. If the Grantee fails to complete this work within the time prescribed and to
the Grantor’s reasonable satisfaction, the Grantor may cause such work to be done and
bill the cost of the work to the Grantee. Grantee shall remit payment to Grantor within
thirty (30) days of receipt of an itemized list of those costs. If the Town requires Grantee
to relocate its facilities located within the Rights-of-Way, the Town shall make a
reasonable effort to provide Grantee with an alternate location in the Rights-of-Way. If
funds are generally made available to users of the Rights-of-Way for such relocation,
Grantee shall be entitled to seek its pro rata share of such funds.
(B) Movement for Other Permittees.
At the request of any Person holding a valid permit and upon reasonable advance notice,
Grantee shall temporarily raise, lower or remove its wires as necessary to permit the
moving of a building, vehicle, equipment or other item. The cost of such temporary
change must be paid by the permit holder, and Grantee may require the estimated
payment in advance.
10.7 Rights-of-Way Vacation
If any Rights-of-Way or portion thereof used by Grantee is vacated by Grantor during the
term of this Agreement, unless Grantor specifically reserves to Grantee the right to
continue the use of vacated Rights-of-Way, Grantee shall, without delay or expense to
Grantor, remove its facilities from such Rights-of-Way, and restore, repair or reconstruct
the Rights-of-Way where such removal has occurred. Grantor shall make a reasonable
effort to provide Grantee with an alternate location within the Rights-of-Way. In the
event of failure, neglect or refusal of Grantee, after thirty (30) days’ written notice by
Grantor, to restore, repair or reconstruct such Rights-of-Way, Grantor may do such work
or cause it to be done, and the reasonable cost thereof shall be paid by Grantee within
thirty (30) days of receipt of an invoice and documentation.
If funds are available to any Person using the Rights-of-Way for the purpose of deferring
the cost of any of the foregoing, the Grantor shall reimburse the Grantee in the same
manner in which other Persons affected by the requirement are reimbursed.
10.8 Removal of Discontinued Facilities
Whenever Grantee intends to discontinue using any facility within the Rights-of-Way,
Grantee shall submit for Grantor a complete description of the facility and the date on
which Grantee intends to discontinue using the facility. Grantee may remove the facility
or request that Grantor allow it to remain in place. Notwithstanding Grantee’s request
that any such facility remain in place, Grantor may require Grantee to remove the facility
from the Rights of Way or modify the facility to protect the public health, welfare, safety
and convenience, or otherwise serve the public interest. Grantor may require Grantee to
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perform a combination of modification and removal of the facility. Grantee shall
complete such removal or modification in accordance with a schedule reasonably set by
Grantor. Until such time as Grantee removes or modifies the facility as reasonably
directed by Grantor, or until the rights to and responsibility for the facility are accepted
by another Person having authority to construct and maintain such facility, Grantee shall
be responsible for all necessary repairs and relocations of the facility, as well as
maintenance of the Rights-of-Way, and shall retain all liability for such facilities in the
same manner and degree as if the facility were in active use. If Grantee abandons its
facilities, Grantor may choose to use such facilities for any purpose whatsoever
including, but not limited to, Access Channel purposes. If Grantor chooses to utilize any
such abandoned facilities, Grantee’s liability for those facilities shall cease.
10.9 Hazardous Substances
(A) Grantee shall comply with all applicable State and federal laws, statutes,
regulations and orders concerning hazardous substances within the Rights-of-Way.
(B) Grantor may inspect Grantee’s facilities in Rights-of-Way to determine if
any release of hazardous substances has occurred, or may occur, from or related to
Grantee’s System. In removing or modifying Grantee’s facilities as provided in this
Agreement, Grantee shall also remove all residue of hazardous substances related thereto.
10.10 Undergrounding of Cable
(A) Wiring.
(1) Where electric and telephone utility wiring are installed underground at
the time of System construction and when all such wiring is subsequently placed
underground, all System lines, wiring and equipment shall also be placed
underground by Grantee with other wireline service concurrently unless it is not
feasible to underground due to rocky soil (which shall be in the Town’s
reasonable determination) or within a reasonable time thereafter at no expense to
the Grantor unless otherwise allowed by applicable law and/or funding is
generally available for such relocation to all users of the Rights-of-Way. Related
System equipment, such as pedestals, power supplies and other ground-mounted
appurtenances must be placed in accordance with applicable Town Code
requirements and rules. In areas where either electric or telephone utility wiring
are aerial, the Grantee may install aerial cable, except when a property owner or
resident requests underground installation and agrees to bear the additional cost in
excess of aerial installation. Nothing contained in this subsection shall require
Grantee to construct, operate and maintain underground any ground-mounted
appurtenances including, but not limited to pedestals, power supplies, etc.
(2) The Grantee shall utilize existing poles and conduit wherever
commercially reasonable.
(3) This Agreement does not grant, give or convey to the Grantee the right or
privilege to install its facilities in any manner on specific utility poles or
equipment of the Grantor or any other Person. Terms, compensation for and use
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of Town Poles shall be governed by a separate Pole Attachment Agreement
between the Town and Grantee.
(4) The Grantee and the Grantor recognize that situations may occur in the
future where the Grantor may desire to place its own cable or conduit for Fiber
Optic cable in trenches or bores opened by the Grantee for purposes which are not
in competition with Grantee. In addition, the Grantee agrees to cooperate with
the Grantor in any other construction by the Grantee that involves trenching or
boring provided that Grantor’s use is for Noncommercial purposes and Grantor
has first provided reasonable notice to Grantee that it is interested in sharing the
trenches or bores in the area where Grantee’s construction is occurring. If
sufficient space is reasonably available, the Grantee shall allow the Grantor to lay
its cable, conduit and Fiber Optic cable in the Grantee’s trenches and bores,
provided the Grantor shares in the cost of the trenching and boring on the same
terms and conditions as the Grantee at that time shares the total cost of trenches
and bores and the Grantor certifies in writing that it shall not use any facilities for
purposes which are in competition with Grantee. The Grantor shall be
responsible for maintaining its respective cable, conduit and Fiber Optic cable
buried in the Grantee’s trenches and bores under this paragraph.
(5) The Grantor shall not be required to obtain easements for the Grantee.
(6) The Grantee shall participate with other providers in joint trench projects
to relocate its overhead facilities underground and remove its overhead facilities
in areas where all utilities are being converted to underground facilities. To the
extent technically feasible, relocation of overhead facilities underground shall be
completed within ninety (90) days (or such other period of time provided by
Town Code) in areas where electric or telephone utilities are being converted to
underground facilities.
(B) Repair and Restoration of Property. The Grantee shall protect public and
private property within the Rights-of-Way from damage.
10.11 Codes
Grantee shall strictly adhere to all Generally Applicable building and zoning codes
currently or hereafter in effect as long as they do not materially affect Grantee’s rights
under this Agreement.
10.12 Construction and Use of Poles
Whenever feasible, Grantee shall use existing poles when the installation of facilities
above-ground is permitted. In the event Grantee cannot obtain the necessary poles and
related facilities pursuant to a pole attachment agreement, and only in such event, then it
shall be lawful for Grantee to make all needed excavations in the streets for the purpose
of placing, erecting, laying, maintaining, repairing and removing poles, conduits,
supports for wires and conductors, and any other facility needed for the maintenance or
extension of Grantee’s System. All poles of Grantee shall be erected in locations
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approved by the Grantor, and each pole shall be set whenever practicable at an extension
lot line. Grantor shall have the right to require Grantee to change the location of any pole
within Rights-of-Way when, in the opinion of Grantor, the public health, safety or
welfare requires such change, and the expense thereof shall be paid by Grantee. Terms,
compensation for and use of Town Poles shall be governed by a separate Pole
Attachment Agreement between the Town and Grantee. Any dispute between a private
property owner and the Grantee regarding the proposed location of a pole shall be
resolved between such private property owner and Grantee and shall not involve the
Grantor.
10.13 Tree Trimming
Upon obtaining a written permit from Grantor, if such a permit is required, Grantee may
prune or cause to be pruned, using proper pruning practices in accordance with such
permit, any tree or other natural growth in the Rights-of-Way that interferes with the
System.
10.14 Standards
(A) All work authorized and required hereunder shall be done in a safe,
thorough and workmanlike manner. The Grantee must comply with all federal, State and
local safety requirements, rules, regulations, laws and practices, and employ all necessary
devices as required by applicable law during construction, operation and repair of its
System. By way of illustration and not limitation, the Grantee must comply with the
National Electric Code, National Electrical Safety Code and Occupational Safety and
Health Administration (OSHA) Standards.
(B) Grantee shall ensure that all cable drops are properly bonded and
grounded at the home, consistent with applicable code requirements. All non-conforming
or non-performing cable drops shall be replaced by Grantee as necessary.
(C) All installations of equipment shall be permanent in nature, durable and
installed in accordance with good engineering practices and of sufficient height to
comply with all federal, State and local regulations, ordinances and laws so as not to
interfere in any manner with the right of the public or individual property owner, and
shall not interfere with the travel and use of public places by the public during the
construction, repair, operation or removal thereof, and shall not obstruct or impede
traffic.
(D) In the maintenance and operation of its System in Rights-of-Way and
other public places, and in the course of any new construction or addition to its facilities,
the Grantee shall proceed so as to cause minimal inconvenience to the general public; any
opening or obstruction in the Rights-of-Way or other public places made by the Grantee
in the course of its operations shall be guarded and protected at all times by the
placement of adequate barriers, fences or boarding, the bounds of which, during periods
of dusk and darkness, shall be clearly marked.
10.15 Stop Work
On notice from Grantor that any work is being conducted contrary to the provisions of
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this Agreement, or in an unsafe or dangerous manner as determined by Grantor, or in
violation of the terms of any applicable permit, laws, regulations, ordinances or
standards, the work may immediately be stopped by Grantor. The stop work order shall:
(A) Be in writing;
(B) Be sent to Grantee by mail at the address given herein;
(C) Indicate the nature of the alleged violation or unsafe condition; and
(D) Establish conditions under which work may be resumed.
10.16 Work of Contractors and Subcontractors
Grantee’s contractors and subcontractors shall be licensed and bonded in accordance with
local ordinances, regulations and requirements. Work by contractors and subcontractors
shall be subject to the same restrictions, limitations and conditions as if the work were
performed by Grantee. Grantee shall be responsible for all work performed by its
contractors and subcontractors and others performing work on its behalf, and shall ensure
that all such work is performed in compliance with this Agreement and other applicable
law, and shall be jointly and severally liable for all damages caused by them. It is
Grantee’s responsibility to ensure that contractors, subcontractors or other persons
performing work on Grantee’s behalf are familiar with the requirements of this
Agreement and other applicable laws governing the work performed by them.
10.17 Safety
Under any circumstances regarding operation or use of the System that poses or involves
public health, safety or welfare hazards, peril or danger or property hazards, Grantee shall
take steps and act expeditiously to rectify such situations until conclusion.
10.18 Joint Trenching/Boring
To the extent it is technically and economically feasible, Grantee shall joint trench or
share bores or cuts and work with other providers (such as, but not limited to,
telecommunications, gas, sewer, water and electric companies), licensees, permittees so
as to reduce the number of right-of-way cuts within the Town.
10.19 GIS Mapping
Grantee shall within a reasonable timeframe comply with any Generally Applicable
ordinances, rules and regulations of the Town regarding geographic information systems
mapping for users of the rights-of-way and upon thirty (30) days written request, provide
electronic copies of route locations from Assessor’s Maps showing the location of
System lines and facilities in the Rights-of-Way, but excluding detail on proprietary
electronics or other proprietary information related to Grantee’s specific design of the
System. It is understood that this requirement is for Grantee to provide information
which is already available to it and not new information which would be otherwise
necessary to be generated by Grantee.
SECTION 11. SYSTEM DESIGN
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(A) The Cable System is capable of delivering signals that meet FCC technical
quality standards regardless of a particular manner in which the signal is transmitted.
Grantee agrees to maintain the Cable System in a manner consistent with, or in excess of
these specifications throughout the term of the Agreement.
(B) Subscriber Network. All or part of the Cable System may be capable of
delivering at least two hundred (200) Channels of Video Programming services to
Subscribers, and may be two-way capable provided that the Grantee reserves the right to
use the bandwidth in the future for other uses based on market factors. The Town and
Grantee acknowledge that Grantee is currently undertaking an upgrade of the Cable
System and when such upgrade is completed in the first quarter of 2013, such Cable
System will be an 860 MHz system capable of delivering at least 115 6 Mhz Channels
including Channels in high definition.
(C) Equipment must be installed so that all closed captioned programming
received by the Cable System shall include the closed caption signal so long as the closed
caption signal is provided consistent with FCC standards.
(D) Grantee acknowledges that the minimum Cable System design and
performance requirements set forth in this Agreement are enforceable, to the extent
allowed by law.
SECTION 12. TECHNICAL STANDARDS
12.1 Technical Performance
The technical performance of the Cable System shall meet all applicable technical
standards authorized or required by law, including, without limitation, FCC technical
standards, as they may be amended from time to time, regardless of the transmission
technology utilized. The Town shall have the full authority permitted by applicable law
to enforce compliance with these technical standards.
12.2 Inspection of Construction
Grantor shall have the right to inspect any construction or installation work performed
under this Agreement and to charge Generally Applicable inspection fees therefor. If an
unsafe condition is found to exist, the Grantor, in addition to taking any other action
permitted under applicable law, may order Grantee, in writing, to make the necessary
repairs and alterations specified therein forthwith to correct the unsafe condition within
the time specified by Grantor. The Grantor has the right to correct, inspect, administer
and repair the unsafe condition if Grantee fails to do so within the time specified, and to
charge Grantee the reasonable cost therefore. In such event, the Grantor shall not be
liable for any damage to any portion of Grantee’s Cable System unless the Grantor acted
in a negligent manner and Grantor’s liability is only to the extent permitted by State law.
12.3 Cable System Performance Testing
(A) Grantee shall, at its expense, perform all tests on its Cable System
required by the FCC and shall maintain written records of its test results in accordance
with applicable law. Upon advance request, all FCC required technical performance tests
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may be witnessed by representatives of the Town. The expense of the Town providing its
representatives to witness the test shall be borne by the Town. Copies of such test results
will be provided to the Town upon request.
(B) Upon request, Grantee will notify the Town before any required technical
proof-of-performance or other testing occurs.
(C) Grantee shall promptly take such measures as are necessary and diligently
continue the same until completion in order to correct any performance deficiencies fully
and to prevent their recurrence. Grantee’s failure to correct deficiencies identified
through this testing process shall be a violation of this Agreement. Sites shall be re-
tested following correction until correction has been confirmed and satisfactory results
are obtained.
12.4 Additional Tests
(A) Where there exists an ongoing pattern of poor technical performance or
quality on the Cable System, then upon thirty (30) days prior written notice, the Town
may require Grantee to conduct proof of performance tests on test points located within
the Town and provide results of such tests within thirty (30) days after completion
thereof. This testing requirement may only be triggered by the Town once during each
twelve (12) month period.
(B) Grantee shall cooperate with the Town in performing the testing described
in Subsection (A) and shall prepare the results and a report if requested, within thirty (30)
days after testing. Such report shall include the following information:
(1) the nature of the complaint or problem that precipitated the special
tests;
(2) the Cable System component tested;
(3) the equipment used and procedures employed in testing;
(4) the method, if any, in which such complaint or problem was
resolved; and
(5) any other information pertinent to said tests and analysis that may
be reasonably required.
SECTION 13. SERVICE EXTENSION
13.1 Service Availability
(A) In general, except as otherwise provided herein and subject to receiving
permits from the Town, Grantee shall provide a standard installation of Cable Service
within seven (7) days of a request by any Person within its Agreement Area. For
purposes of this Section, a request shall be deemed made on the date of signing a service
agreement, receipt of funds by Grantee, receipt of a written request by Grantee or receipt
by Grantee of a verified verbal request. Grantee shall provide such service:
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(1) With no line extension charge except as specifically authorized
elsewhere in this Agreement.
(2) At a non-discriminatory installation charge for a standard
installation, consisting of a one hundred twenty five (125) foot aerial drop or sixty (60)
feet for an underground drop (provided that this does not require extensive boring or the
use of costly construction equipment) connecting to the exterior demarcation point for
Subscribers, with additional charges for non-standard installations computed according to
a non-discriminatory methodology for such installations, adopted by Grantee and
provided upon request in writing to the Town.
(3) At non-discriminatory monthly rates for all Residential
Subscribers, excepting commercial Customers, MDU Bulk Customers and other lawful
exceptions to uniform pricing.
(4) Notwithstanding any other provision of this Agreement, the
Grantee shall have the right, but shall have no obligation to extend the Cable System into
any portion of the Agreement Area where Grantee is not providing Cable Service on the
effective date of this Agreement, or where another cable operator is providing Cable
Service, or into any area that is not contiguous to the present service area of the Grantee.
Additionally, Grantee shall not be obligated to provide Cable Service to any area that is
commercially unreasonable.
(B) No Customer shall be refused service arbitrarily. However, for unusual
circumstances, such as a Customer’s request to locate the cable drop underground with a
distance of more than sixty (60) feet (and also provided that this does not require
extensive boring or the use of costly construction equipment) or the existence of more
than one hundred twenty five (125) aerial feet of distance from distribution cable to
connection of service to Customers, or a density of less than fifteen (15) residences
(excluding those residences that have direct broadcast satellite video service and those
where access easements cannot be obtained on a reasonable basis from third parties) per
5280 cable-bearing strand feet of trunk or distribution cable, service may be made
available on the basis of a capital contribution in aid of construction, including cost of
material, labor and easements. For the purpose of determining the amount of capital
contribution in aid of construction to be borne by the Grantee and Customers 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 5280 cable-bearing strand feet of its trunk or
distribution cable and whose denominator equals fifteen (15). Customers 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 Customers be paid in advance. The density
requirement contained herein shall also apply to annexed and newly developed areas
within the Town as well.
(C) The Grantee shall provide Cable Service to Multiple Dwelling Units in
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accordance with an agreement with the property owner or owners, this Agreement and all
applicable laws.
SECTION 14. STANDBY POWER AND EMERGENCY ALERT SYSTEM
14.1 Standby Power
Grantee shall provide standby power generating capacity at the System Headend capable
of providing at least twelve (12) hours of emergency operation. Grantee shall maintain
standby power system supplies throughout the System rated for at least four (4) hours
duration.
14.2 Emergency Alert Capability
(A) Grantee shall provide an operating Emergency Alert System (“EAS”) in
compliance with FCC standards throughout the term of this Agreement. Given the
possibility of fire, flood or other natural disaster, the Town shall have the ability to
remotely phone in to exercise override capability (using a passcode or password) and
send emergency messages over and on the EAS System since it would impact only the
Estes Park area and Larimer County near Estes Park and not other jurisdictions. The
Grantee shall pay for the cost of the EAS equipment in the Headend and the Grantor shall
pay for the monthly cost of one standard phone line.
(B) Grantee shall ensure that the EAS system is functioning properly at all
times. It will test the EAS system periodically, in accordance with FCC regulations.
Upon request, Grantee will advise the Town of the testing schedule so that the Town may
be present for the tests.
SECTION 15. AGREEMENT BREACHES; TERMINATION OF AGREEMENT
15.1 Procedure for Remedying Agreement Violations
(A) If Grantor believes that Grantee has failed to perform any material
obligation under this Agreement or has failed to perform in a timely manner, Grantor
shall first informally discuss the matter with Grantee. If this discussion does not lead to
resolution of the problem, the Grantor shall notify Grantee in writing, stating with
reasonable specificity, the nature of the alleged default. Grantee shall have thirty (30)
days from the receipt of such notice to:
(1) Respond to Grantor, contesting Grantor’s assertion that a default has
occurred;
(2) Cure the default; or
(3) Notify Grantor that Grantee cannot cure the default within the thirty (30)
days, because of the nature of the default. In the event the default cannot be cured
within thirty (30) days, Grantee shall promptly take all reasonable steps to cure
the default and notify Grantor in writing and in detail as to the exact steps that
will be taken and the projected completion date. Upon five (5) business days’
prior written notice, either Grantor or Grantee may call an informal meeting to
discuss the alleged default. In such case, if matters are not resolved at such
meeting, Grantor may set a hearing in accordance with subsection (B) below to
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determine whether additional time beyond the thirty (30) days specified above is
indeed needed, and whether Grantee’s proposed completion schedule and steps
are reasonable.
(B) If Grantee does not cure the alleged default within the cure period stated
above, or by the projected completion date under subsection (A)(3), or denies the default,
or Grantor orders a hearing in accordance with subsection (A)(3), Grantor shall set a
public hearing to investigate said issues or the existence of the alleged default. Grantor
shall notify Grantee of the hearing in writing and such hearing shall take place no less
than thirty (30) days after Grantee’s receipt of notice of the hearing which notice shall
specify the time, place and purpose of such hearing. At the hearing, Grantee shall be
provided an opportunity to be heard, to present and question witnesses, and to present
evidence in its defense. At any such hearing, Grantor shall not unreasonably limit
Grantee’s opportunity to make a record that may be reviewed should any final decision of
Grantor be appealed to a court of competent jurisdiction. The determination as to
whether a default or a material breach of this Agreement has occurred shall be within
Grantor’s sole discretion, but any such determination shall be subject to de novo review
by appeal to a court of competent jurisdiction.
(C) If, after the public hearing, Grantor determines that a default still exists,
Grantor shall order Grantee to correct or remedy the default or breach within fourteen
(14) days of Town notification or within such other reasonable timeframe as Grantor
shall determine. Grantor’s decision shall be provided to the Grantee in writing, setting
forth the reasons supporting the Town’s actions. In the event Grantee does not cure
within such time to Grantor’s reasonable satisfaction, Grantor may:
(1) Assess and collect monetary damages in accordance with this
Agreement; and
(2) Commence revocation procedures consistent with Subsection 15.4
herein; and
(3) Pursue any other legal or equitable remedy available under this
Agreement or applicable law.
(D) Grantee reserves the right to appeal any determination made pursuant to
Section 15.1 (C) to a court of competent jurisdiction which shall have the authority to
conduct de novo review of the Grantor’s decision. At the hearing, the Grantee shall be
provided an opportunity to be heard and a complete transcript shall be made of such
proceeding. The determination as to whether a violation of this Agreement has occurred
pursuant to this Section herein shall be within the sole discretion of the Grantor in
accordance with law. Any such determination by Grantor shall be accompanied by a
record, to which Grantee’s contribution shall not be limited by Grantor (i.e., Grantor shall
hear any interested Persons and shall allow Grantee an opportunity to be heard, to cross
examine witnesses, to present evidence and to make additions to the hearing record).
Any such final determination shall be subject to appeal to the Town Board or review by a
court of competent jurisdiction. Such appeal to the appropriate Court shall be taken
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within sixty (60) days of the issuance of the determination of the Grantor. Grantor shall
receive notice from Grantee of any appeal concurrent with any filing to a court of
competent jurisdiction.
15.2 Alternative Remedies
No provision of this Agreement shall be deemed to bar the right of either party to seek or
obtain judicial relief from a violation of any provision of the Agreement or any rule,
regulation, requirement or directive promulgated thereunder. Neither the existence of
other remedies identified in this Agreement nor the exercise thereof shall be deemed to
bar or otherwise limit the right of either party to recover monetary damages, as allowed
under applicable law, or to seek and obtain judicial enforcement of obligations by means
of specific performance, injunctive relief or mandate, or any other remedy at law or in
equity.
The Grantor specifically does not, by any provision of this Agreement, waive any right,
immunity, limitation or protection (including complete damage immunity) otherwise
available to the Grantor, its officers, officials, Boards, members, commissions, agents, or
employees under federal, State, or local law including by example Section 635A of the
Cable Act. The Grantee shall not have any monetary recourse against the Grantor, or its
officers, officials, Board, members, commissions, agents or employees for any loss,
costs, expenses or damages arising out of any provision, requirement of this Agreement
or the enforcement thereof, subject to applicable law.
15.3 Assessment of Monetary Damages and Letter of Credit
Subject to Section 5.3:
(A) Grantee shall deliver to the Town an irrevocable and unconditional Letter
of Credit, in a form and substance acceptable to the Town, from a National or State bank
subject to reasonable approval by the Town, in the amount of $2,500.
(B) The Letter of Credit shall provide that funds will be paid to the Town, in
an amount for liquidated damages charged pursuant to this Section, in payment for any
monies owed by the Grantee to the Town or any Person as a result of any material acts or
material omissions by the Grantee pursuant to this Agreement or due to a pattern of
repeated violation of any provisions of this Agreement. Grantee shall have the
opportunity to cure as provided in Section 15.1 of this Agreement.
(C) In addition to the recovery of any monies owed by the Grantee to the
Town or any Person or damages to the Town or any Person as a result of any material
acts or material omissions by the Grantee pursuant to the Agreement, the Town in its sole
discretion may, after notice and opportunity to cure as provided in Section 15.1, charge to
and collect from the Letter of Credit the following liquidated damages:
(1) For failure to cooperate with the Town during an application process or System
review or as otherwise provided herein, the Liquidated Damages shall be $100.00
per day for each day, or part thereof, such failure occurs or continues.
(2) For failure to provide the following services and payments required by this
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Agreement; the implementation and the utilization of the Access Channel; the
payments required by Section 9.7; and the Agreement Fees as required by Section
3.1 - the Liquidated Damages shall be $200.00 per day for each day, or part
thereof, such failure occurs or continues.
(3) For failure to comply with the Customer Service Standards in Exhibit I, the
liquidated damages shall be $100.00 per day for each day such failure occurs or
continues.
(D) Each violation of any material provision referenced above in Section
15.3(C) of this Agreement shall be considered a separate violation for which separate
liquidated damages can be imposed, provided, however, it is agreed that Liquidated
Damages may not be assessed for time period exceeding sixty (60) days and further if
there are multiple violations, the maximum amount per day for Liquidated Damages on a
cumulative basis may not be more than $300 per day. If after assessing Liquidated
Damages for sixty (60) days, Grantee still has not cured or commenced to cure the
alleged breach to the satisfaction of the Grantor, the Grantor may pursue all other
remedies.
(E) If said Letter of Credit or any subsequent Letter of Credit delivered
pursuant thereto expires prior to twelve (12) months after the expiration of the term of
this Agreement, it shall be renewed or replaced during the term of this Agreement to
provide that it will not expire earlier than twelve (l2) months after the expiration of this
Agreement. The renewed or replaced Letter of Credit shall be of the same form and with
a bank authorized herein and for the full amount stated in paragraph (A) of this Section.
(F) Because it may be difficult to calculate the harm to the Town in the event
of a breach of this Agreement by Grantee, the parties agree to liquidated damages as a
reasonable estimation of the actual damages. To the extent that the Town assesses
liquidated damages as provided in this Agreement and such liquidated damages have
been paid, such damages shall be the Town’s sole and exclusive remedy. Nothing in this
Section is intended to preclude the Town from exercising any other right or remedy with
respect to a breach that continues past the time the Town stops assessing liquidated
damages for such breach.
(G) The bond(s) and Letter of Credit referred to in Section 5.3 (A) may be
drawn or collected upon by the Town for breach of a material provision after notice and
opportunity to cure.
The Town shall give Grantee written notice of any intent to withdraw under this
subsection. Within fifteen (15) days following receipt of such notice, Grantee shall
restore the bond(s) and Letter of Credit to the amount required under this Agreement.
Grantee’s maintenance of the bond(s) and Letter of Credit shall not be construed to
excuse unfaithful performance by Grantee or to limit the liability of Grantee to the
amount of the bond(s) and Letter of Credit or otherwise to limit the Town’s recourse to
any other remedy available at law or in equity.
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Grantee shall have the right to appeal to the Town Board for reimbursement in the
event Grantee believes that a bond or Letter of Credit was drawn upon improperly.
Grantee shall also have the right of judicial appeal if Grantee believes a bond or Letter of
Credit has not been properly drawn upon in accordance with this Agreement. Any funds
the Town erroneously or wrongfully withdraws from the bond(s) or Letter of Credit shall
be returned to Grantee with interest from the date of withdrawal.
The assessment does not constitute a waiver by the Town of any other right or
remedy it may have under the Agreement or applicable law, including its right to recover
from Grantee any additional damages, losses, costs and expenses that are incurred by
Town by reason of the breach of this Agreement.
Grantee’s maintenance of the security required herein or by applicable code shall
not be construed to excuse unfaithful performance by the Grantee of this Agreement; to
limit liability of the Grantee to the amount of the security; or to otherwise limit the
Grantor’s recourse to any other remedy available at law or equity.
15.4 Revocation
(A) This Agreement may be revoked and all rights and privileges rescinded if
a material breach of the Agreement is not cured pursuant to Section 15.1, or in the event
that the following are not cured pursuant to Section 15.1:
(1) Grantee fails to perform any material obligation under this Agreement;
(2) Grantee attempts to evade any material provision of this Agreement or to practice
any fraud or deceit upon the Grantor or Subscribers;
(3) Grantee makes a material misrepresentation of fact in the negotiation of this
Agreement;
(4) Grantee fails to maintain the required Customer service location;
(5) Grantee abandons the System, or terminates the System’s operations;
(6) Grantee fails to restore service to the System after three consecutive days of an
outage or interruption in service; except in the case of an emergency or during a
force majeure occurrence, or when approval of such outage or interruption is
obtained from the Grantor, it being the intent that there shall be continuous
operation of the System; or
(7) Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged
bankrupt, there is an assignment for the benefit of Grantee’s creditors, or all or
part of the Grantee’s System is sold under an instrument to secure a debt and is
not redeemed by Grantee within thirty (30) days from said sale.
(B) Additionally, this Agreement may be revoked one hundred twenty (120)
days after the appointment of a receiver or trustee to take over and conduct the business
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of the Grantee whether in a receivership, reorganization, bankruptcy or other action or
proceeding, unless:
(1) The receivership or trusteeship is vacated within one hundred twenty (120) days
of appointment; or
(2) The receivers or trustees have, within one hundred twenty (120) days after their
election or appointment, fully complied with all the material terms and provisions
of this Agreement, and have remedied all material defaults under the Agreement.
Additionally, the receivers or trustees shall have executed an agreement duly
approved by the court having jurisdiction, by which the receivers or trustees
assume and agree to be bound by each and every term and provision of this
Agreement.
(C) If there is a foreclosure or other involuntary sale of the whole or any part
of the plant, property and equipment of Grantee, Grantor may serve notice of revocation
on Grantee and to the purchaser at the sale, and the rights and privileges of Grantee under
this Agreement shall be revoked thirty (30) days after service of such notice, unless:
(1) Grantor has approved the transfer of the Agreement, in accordance with the
procedures set forth in this Agreement and as provided by law; and
(2) The purchaser has covenanted and agreed with Grantor to assume and be bound
by all of the terms and provisions of this Agreement.
(D) Following the procedures set forth in this Agreement, and prior to
forfeiture or termination of the Agreement, the Town shall give written notice to the
Grantee of its intent to revoke the Agreement. The notice shall set forth the nature of the
noncompliance.
(E) Any proceeding under the Subsection (D) above shall be conducted by the
Town Board and open to the public. Grantee shall be afforded at least thirty (30) days prior
written notice of such proceeding.
(1) At such proceeding, Grantee shall be provided a fair opportunity for
full participation, including the right to be represented by legal counsel, to introduce
evidence, and to call and question witnesses. A complete verbatim record and transcript shall
be made of such proceeding and the cost of the record and transcript shall be borne by
Grantee. The Town Board or its designee shall hear any Persons interested in the revocation,
and shall allow Grantee, in particular, an opportunity to state its position on the matter.
(2) Within ninety days after the hearing, the Town Board shall determine
whether to revoke the Agreement and declare that the Agreement is revoked; or if the breach
at issue is capable of being cured by Grantee, direct Grantee to take appropriate remedial
action within the time and in the manner and on the terms and conditions that the Town
Board or its designee determines are reasonable under the circumstances. If the Town
determines that the Agreement is to be revoked, the Town shall set forth the reasons for such
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a decision and shall transmit a copy of the decision to the Grantee. Grantee shall be bound
by the Town’s decision to revoke the Agreement unless Grantee appeals the decision to a
Court of competent jurisdiction within sixty (60) days of the date of the decision.
(3) Grantee shall be entitled to such relief as the Court may deem
appropriate.
Nothing contained in this Section shall be deemed a waiver of
Grantee’s or Grantor’s rights or protections existing under State or Federal law.
(4) The Town Board may in its sole discretion take any lawful action
which it deems appropriate to enforce the Town’s rights under the Agreement in addition to
revocation of the Agreement.
15.5 Removal
(A) In the event of lawful termination, expiration, revocation or lawful
nonrenewal of this Agreement, and after all appeals from any judicial determination are
exhausted and final, Grantor may order the removal of the System facilities from the
Agreement Area at Grantee’s sole expense within a reasonable period of time (not to
exceed 180 days) as determined by Grantor. In removing its plant, structures and
equipment, Grantee shall refill, at its own expense, any excavation that is made by it and
shall leave all Rights-of-Way, public places and private property in a condition
reasonably comparable to the condition as that prevailing immediately prior to Grantee’s
removal of its equipment.
(B) If Grantee fails to complete any required removal to the satisfaction of
Grantor, Grantor may after written notice to Grantee cause the work to be done, and
Grantee shall reimburse Grantor for the reasonable costs incurred within thirty (30) days
after receipt of an itemized list of Grantor’s expenses and costs, or Grantor may recover
its expenses and costs from the security, or pursue any other judicial remedies for the
collection thereof.
SECTION 16. ABANDONMENT
If the Grantee abandons its System during the Agreement term, or fails to operate its
System in accordance with any duty to provide continuous service to Subscribers or the
Town or Schools as required herein, the provisions of this Agreement and the Town Code
shall apply and the Grantor, at its option, may operate the System or; designate another
entity to operate the System temporarily until the Grantee restores service under
conditions acceptable to the Grantor, or until the Agreement is revoked and a new cable
operator is selected by the Grantor. If the Grantor designates another entity to operate
the System, the Grantee shall reimburse the Grantor for all reasonable costs, expenses
and damages incurred, including reasonable attorney fees, court expenses and attributed
expenses for work conducted by Grantor’s staff or authorized agents.
SECTION 17. AGREEMENT RENEWAL
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(A) The Grantor and Grantee agree that any proceedings undertaken by Grantor
that relate to the renewal of the Agreement shall be governed by and comply with the
provisions of Section 626 of the Cable Act, unless the procedures or substantive protections
set forth therein shall be deemed to be preempted and/or superseded by the provisions of any
subsequent provision of Federal law.
(B) In addition to the procedures set forth in said Section 626(a), Grantor agrees
to notify Grantee of the completion of its assessments regarding the identification of future
cable-related community needs and interests, as well as the past performance of Grantee
under the then current Agreement term. Notwithstanding anything to the contrary set forth
herein, Grantee and Grantor agree that at any time during the term of the then current
Agreement, while affording the public adequate notice and opportunity for comment,
Grantor and Grantee may agree to undertake and finalize negotiations regarding renewal of
the then current Agreement and Grantor may grant a renewal thereof. Grantee and Grantor
consider the terms set forth in this subsection to be consistent with the express provisions of
Section 626 of the Cable Act.
SECTION 18. AGREEMENT TRANSFER
Transfer of Ownership or Control
(A) The Cable System and this Agreement shall not be sold, assigned,
transferred, leased or disposed of, either in whole or in part, either by involuntary sale or
by voluntary sale, merger or consolidation; nor shall title thereto, either legal or
equitable, or any right, interest or property therein pass to or vest in any Person or entity
without the prior written consent of the Grantor, which consent shall be by the Town
Board, acting by ordinance or resolution which consent shall not be unreasonably
withheld.
(B) The Grantee shall promptly notify the Grantor of any actual or proposed
change in, or transfer of, or acquisition by any other party of control of the Grantee. The
word “control” as used herein is not limited to majority stockholders but includes actual
working control in whatever manner exercised. Every change, transfer or acquisition of
control of the Grantee shall make this Agreement subject to cancellation unless and until
the Grantor shall have consented in writing thereto and Grantor’s consent shall not be
unreasonably withheld.
(C) The parties to the sale or transfer shall make a written request to the
Grantor for its approval of a sale or transfer or change in control and shall furnish all
information required by law and this Agreement.
(D) In seeking the Grantor’s consent to any change in ownership or control,
the proposed transferee or controlling entity shall indicate whether it:
(1) Has ever been convicted or held liable for acts involving deceit including any
violation of federal, State or local law or regulations, or is currently under an
indictment, investigation or complaint charging such acts;
(2) Has ever had a judgment in an action for fraud, deceit, or misrepresentation
45
entered against the proposed transferee by any court of competent jurisdiction;
(3) Has pending any material legal claim, lawsuit, or administrative proceeding
arising out of or involving a Cable System;
(4) Is financially solvent, by submitting financial data including financial
statements that are audited by a certified public accountant who may also be an
officer of the transferee or controlling entity; and
(5) Has the financial, legal and technical capability to enable it to maintain and
operate the Cable System for the remaining term of the Agreement.
(E) The Grantor shall act by ordinance or resolution on the request within one
hundred twenty (120) days of the request provided it has received all information
required by law such as a complete FCC Form 394 application, provided it has received a
complete application. Subject to the foregoing, if the Grantor fails to render a final
decision on the request within one hundred twenty (120) days, such request shall be
deemed granted unless there is a mutually agreed to extension of time.
(F) Within thirty (30) days of any transfer or sale or change in control, if
approved or deemed granted by the Grantor, Grantee shall file with the Grantor a
redacted copy of the deed, agreement, lease or other written instrument evidencing such
sale or transfer of ownership or control, certified and sworn to as correct by Grantee and
the transferee or controlling entity, and the transferee or controlling entity shall file its
written acceptance agreeing to be bound by all of the provisions of this Agreement,
subject to applicable law. In the event of a change in control, in which the Grantee is not
replaced by another entity, the Grantee will continue to be bound by all of the provisions
of the Agreement, subject to applicable law, and will not be required to file an additional
written acceptance. The approval of any change in control shall not be deemed to waive
any rights of Grantor to subsequently enforce noncompliance issues relating to this
Agreement. For purposes herein to the extent that a change of control involves an entity
that was not an Affiliate prior to the contemplated transaction, the Town’s consent shall
be required for such change in control.
(G) In reviewing a request for sale or transfer or change in control, the Grantor
may inquire into the legal, technical and financial qualifications of the prospective
controlling party or transferee, and Grantee shall assist the Grantor in so inquiring. The
Grantor may condition said sale or transfer or change in control upon such terms and
conditions as it deems reasonably appropriate consistent with applicable law, provided,
however, any such terms and conditions so attached shall be related to the legal, technical
and financial qualifications of the prospective controlling party or transferee and to the
resolution of outstanding and unresolved issues of noncompliance with the terms and
conditions of this Agreement by Grantee.
(H) Notwithstanding anything to the contrary in this subsection, the prior
approval of the Grantor shall not be required for any sale, assignment or transfer or
change in control of the Agreement or Cable System to an Affiliate provided that the
46
proposed assignee or transferee or new controlling entity must show financial
responsibility as may be determined necessary by the Grantor and must agree in writing
to comply with all of the provisions of the Agreement. Further, Grantee may pledge the
assets of the Cable System for the purpose of financing without the consent of the
Grantor; provided that such pledge of assets shall not impair or mitigate Grantee’s
responsibilities and capabilities to meet all of its obligations under the provisions of this
Agreement.
SECTION 19. PROHIBITED PRACTICES AND NOTICES
19.1 Preferential or Discriminatory Practices Prohibited
Throughout the term of this Agreement, Grantee shall fully comply with all equal
employment and non-discrimination provisions and requirements of federal, State and
local laws, and rules and regulations relating thereto.
19.2 Notices
Unless otherwise expressly agreed between the parties, all notices required to be given
under this Agreement shall be in writing and shall be deemed to be given when deposited
in a correctly addressed envelope via U.S. Mail (with receipt deemed if sent via regular
mail within 5 business days after having been posted in the regular mail) or upon receipt
when hand delivered or with Federal Express, UPS or similar service with
receipt/acknowledgement or upon receipt when sent Certified Mail or Registered Mail.
Throughout the term of this Agreement, each party shall maintain and file with the other
a local address for the service of notices by mail. All notices shall be sent to such
respective address. At the effective date of this Agreement:
Grantee’s address shall be:
Baja Broadband Operating Company, LLC
1061-521 Corporate Center Drive, Suite 100
Ft. Mill, South Carolina 29707-7150
Attention: VP Regulatory Affairs
Grantor’s address shall be:
Town Administrator
Town of Estes Park Colorado
170 MacGregor Avenue
Estes Park, CO 80517
With a Copy to:
Greg White, Esq.
Town Attorney
1423 West 29th Street
Loveland, CO 80538
The Grantor and Grantee may designate such other address or addresses from time to
time by giving notice to the other in the manner provided for in this subsection.
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SECTION 20. MISCELLANEOUS PROVISIONS
20.1 Cumulative Rights
Subject to applicable law and consistent with the terms of this Agreement, all rights and
remedies given to the Town by this Agreement or retained by the Town herein shall be in
addition to and cumulative with any and all other rights and remedies, existing or
implied, now or hereafter available to the Town, at law or in equity, and such rights and
remedies shall not be exclusive, but each and every right and remedy specifically given
by this Agreement or otherwise existing or given may be exercised from time to time and
as often and in such order as may be deemed expedient by the Town and the exercise of
one or more rights or remedies shall not be deemed a waiver of the right to exercise at the
same time or thereafter any other right or remedy.
20.2 Costs to be Borne by Grantee
Grantee shall pay for costs of publication of this Agreement and all Notices prior to any
public meeting or hearing provided for or in connection with this Agreement if such
publication or notices are required by a Generally Applicable Town Ordinance or
applicable law.
20.3 Binding Effect
This Agreement shall be binding upon the parties hereto, their permitted successors and
assigns.
20.4 Authority to Amend
This Agreement may be amended at any time by mutual written agreement between the
parties.
20.5 Venue
The venue for any dispute related to this Agreement shall be in the United States District
Court for the District of Colorado or in the District Court in Larimer County, Colorado.
20.6 Governing Laws
This Agreement shall be governed, construed and enforced in accordance with the laws
of the State of Colorado (as amended), the Cable Act as amended, any applicable rules,
regulations and orders of the FCC, and any other applicable local (consistent with the
terms of this Agreement), State and federal laws, rules, regulations, legislation or orders
(as such now exist, are later amended or subsequently adopted). Nothing contained
herein shall be deemed a waiver of any rights or protections of Grantor or Grantee
existing under such laws or regulations.
20.7 Captions
The captions and headings of this Agreement are for convenience and reference purposes
only and shall not affect in any way the meaning or interpretation of any provisions of
this Agreement.
20.8 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent relationship
48
between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner that would indicate any such relationship with
the other.
20.9 Waiver
The failure of either party at any time to require performance by the other of any
provision hereof shall in no way affect the right of the other party hereafter to enforce the
same. Nor shall the waiver by either party of any breach of any provision hereof be taken
or held to be a waiver of any succeeding breach of such provision, or as a waiver of the
provision itself or any other provision.
20.10 Severability
If any Section, subsection, paragraph, sentence, clause, phrase, term or provision of this
Agreement is for any reason determined to be illegal, invalid or unconstitutional by any
Court or agency of competent jurisdiction, such shall be deemed separate, distinct and
independent and such determination shall have no effect on the validity of any other
Section, subsection, paragraph, sentence, clause, phrase, term or provision of this
Agreement, all of which will remain in full force and effect for the term of the
Agreement.
20.11 Force Majeure
The Grantee shall not be held in default under, or in noncompliance with, the provisions
of this Agreement, nor suffer any enforcement or imposition of damages relating to
noncompliance or default, where such noncompliance or alleged defaults occurred or
were caused by circumstances reasonably beyond the ability of the Grantee to control,
including, but not limited to, war or riots, civil disturbances, floods or other severe or
unusual weather conditions or natural catastrophes, labor stoppages, slow downs, power
outages exceeding back-up power supplies or work delays caused by waiting for utility
providers to service or monitor their utility poles to which the Grantee’s Cable System is
attached.
20.12 Entire Agreement
Except as provided in Section 2.4(C), the Permit shall be of no further force or effect
and this Agreement and Exhibit represent the entire understanding and agreement
between the parties hereto with respect to the subject matter hereof and supersede all
prior oral and written negotiations between the parties.
20.13 Attorneys’ Fees
If any action or suit arises in connection with this Agreement, the prevailing party (either
the Town or Grantee, as the case may be) shall be entitled to recover all of its reasonable
attorneys’ fees, costs and expenses in connection therewith, in addition to such other
relief as the court may deem proper.
20.14 Action of the Town or Grantee
In any action by the Town or Grantee mandated or permitted under the terms hereof, it
shall act in a reasonable, expeditious and timely manner. Furthermore, in any instance
where approval or consent is required under the terms hereof, such approval or consent
49
shall not be unreasonably withheld unless otherwise specified herein.
20.15 Authorization
Each of the undersigned represents and warrants that he or she is duly and properly
authorized to sign on behalf of their respective entity.
IN WITNESS WHEREOF this Agreement is signed in the name of The Town of
Estes Park, Colorado this 11th day of December , 2012.
TOWN OF ESTES PARK, COLORADO
By ____________________________
Title _____________________________
ATTEST:
Town Clerk
Estes Park, Colorado
Clerk and Recorder
APPROVED AS TO FORM
Town Attorney
Accepted and approved this day of , 2012.
BAJA BROADBAND OPERATING COMPANY, LLC
By _____________________________________________
Title ___________________________________________
50
EXHIBIT I
CUSTOMER SERVICE STANDARDS
SECTION 1. POLICY.
Grantee should be permitted the option and autonomy to first resolve citizen complaints
without delay and interference from the Town.
Where a given complaint is not addressed by Grantee to the citizen’s satisfaction, the Town
may intervene, if requested to do so by the citizen.
These Standards are intended to be of general application; however, Grantee shall be
relieved of any obligations hereunder if it is unable to perform due to circumstances beyond
its reasonable control, such as a region-wide natural emergency or in the event of force
majeure (as defined in Section 20.11 of the Agreement) affecting a significant portion of the
Town. Grantee is free to exceed these Standards to the benefit of its Customers and such
shall be considered performance for the purposes of these Standards.
Grantee is responsible to the Town to insure that its agents, contractors and subcontractors
comply with all applicable provisions of these Standards.
SECTION 2. DEFINITIONS
When used in these Customer Service Standards (the “Standards”), the following words,
phrases, and terms shall have the meanings given below.
2.1 “Cable Service” shall mean the one-way transmission to Customers of video
programming or other programming service, and Customer interaction, if any, which is
required for the selection or use of such video programming or other programming service.
2.2 “Cable System” shall mean any facility including that of Grantee consisting of a set
of closed transmission paths and associated signal generation, reception and control
equipment that is designed to provide Cable Service which includes video programming and
which is provided to multiple Customers within a community, but such term does not
include (A) a facility that serves only to retransmit the television signals of one or more
television broadcast stations; (B) a facility that serves Customers without using any right-of-
way; (C) a facility of a common carrier which is subject in whole or in part to the provisions
of Title II of the Federal Communications Act (47 U.S.C. 201, et. seq.), except that such
facility shall be considered a Cable System (other than for purposes of Section 621(c) (47
U.S.C. 541(c)) to the extent such facility is used in the transmission of video programming
directly to Customers, unless the extent of such use is solely to provide interactive on-
demand services; (D) an open video system that complies with federal statutes, or (E) any
facilities of any electric utility used solely for operating its electric utility systems.
2.3 “Customer” shall mean any person who lawfully receives within the Town, Cable
Service from Grantee with Grantee’s express permission.
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2.4 “Customer Service Representative” (or “CSR”) shall mean any person employed
by Grantee to assist, or provide service to, Customers, whether by answering public
telephone lines, writing service or installation orders, answering Customers’ questions,
receiving and processing payments, or performing other Customer service-related tasks.
2.5 “Town” shall mean Estes Park, Colorado acting by and through the Town Board or
its designee. The Town refers to the incorporated portions of the Town.
2.6 “Grantee” shall mean Baja Broadband Operating Company, LLC and its lawful
successors and assigns and any Person, who provides Cable Services and directly or through
one or more affiliates owns a significant interest in such Cable System or who otherwise
controls or is otherwise responsible for through any arrangement, the management and
operation of such a Cable System.
2.7 “Person” shall mean any individual, sole proprietorship, partnership, association or
corporation, or any other form of entity or organization.
2.8 “Service interruption” means the loss of picture or sound on one or more cable
channels.
SECTION 3. CUSTOMER SERVICE.
3.1. Courtesy
All employees of Grantee shall provide effective and satisfactory service in all contacts with
Customers.
3.2. Accessibility; Cable System office hours and telephone availability
(A) Grantee shall maintain a local, toll-free or collect call telephone access line
which will be available to its Customers 24 hours a day, seven days a week.
(1) Trained company representatives will be available to respond to
Customer telephone inquiries during Normal Business Hours.
(2) After Normal Business Hours, the access line may be answered by a
service or an automated response system, including an answering machine. Inquiries
received after Normal Business Hours must be responded to by a trained company
representative on the next business day.
(B) Under Normal Operating Conditions, if a Customer service telephone call is
answered with a recorded message providing the Customer with various menu options to
address the Customer’s concern, the recorded message must provide the Customer with the
option to connect to and speak with a Customer Service Representative (CSR) within ninety
(90) seconds of the commencement of the recording. From the time a Customer chooses a
menu option to speak directly with a CSR, the answer time by a CSR, including wait time,
shall not exceed thirty (30) seconds when the connection is made. If the call needs to be
transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met
52
no less than seventy five (75) percent of the time under Normal Operating Conditions,
measured on a quarterly basis.
(C) Grantee will not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards set forth above, unless a
historical record of complaints indicates a clear failure to comply.
(D) Under Normal Operating Conditions, the Customer will receive a busy signal
less than three (3) percent of the time. This standard shall be met seventy five percent
(75%) or more of the time measured quarterly.
(E) A Customer service center shall be provided and be open for business as set
forth in the Agreement.
3.3. Responsiveness; installations, outages and service calls
(A) Under normal operating conditions, each of the following five standards will
be met no less than seventy-five (75) percent of the time measured on a quarterly basis:
(1) Standard installation will be performed within seven (7) business
days after an order has been placed unless the Customer agrees to a later date for installation.
“Standard” installations are those that are located up to 125 aerial feet or sixty (60)
underground feet from the existing distribution system provided that this does not require
extensive boring or the use of costly construction equipment.
(2) Excluding conditions beyond the control of a Grantee, Grantee will
begin working on “service interruptions” promptly and in no event later than 24 hours after
the interruption becomes known. Grantee must begin actions to correct other service
problems the next business day after notification of the service problem.
(3) The “appointment window” alternatives for installations, service
calls, and other installation activities will be either a specific time or, at maximum, a four-
hour time block during Normal Business Hours. For purposes herein, “Normal Business
Hours” shall be between 8:00 A.M. to 5:00 P.M., Monday through Friday. Grantee may
schedule service calls and other installation activities outside of Normal Business Hours for
the express convenience of the Customer.
(4) Grantee may not cancel an appointment with a Customer after the
close of business on the business day prior to the scheduled appointment unless an
emergency exists.
(5) If Grantee’s representative is running late for an appointment with a
Customer and will not be able to keep the appointment as scheduled, the Customer will be
contacted. The appointment will be rescheduled, as necessary, at a time mutually agreed
upon by the Customer and the Grantee for the convenience of the Customer.
(B) Grantee shall provide clear television reception that meets technical
standards established by the United States Federal Communications Commission (the
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“FCC”). Grantee shall render efficient service, make repairs promptly, and interrupt service
only for good cause and for the shortest time possible. Scheduled interruptions shall be
preceded by notice, and to the extent reasonably possible, and shall occur during periods of
minimum use of the System, preferably between midnight and six a.m. (6:00 a.m.).
(C) Grantee’s Customer Service Representative shall have the authority to
provide credit for interrupted service, to waive fees, and to schedule service appointments
where appropriate.
(D) Billings, refunds and credits.
(1) Bills will be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and premium service charges
and equipment charges. Bills will also clearly delineate all activity during the billing period,
including optional charges, rebates and credits. In case of a billing dispute, Grantee must
respond to a written complaint from a Customer within thirty (30) days.
(2) Refund checks or credits will be issued promptly, but no later than
either the Customer’s next billing cycle following resolution of the request or thirty (30)
days, or upon the return of the equipment supplied by Grantee if service is terminated.
(E) Treatment of Private Property.
(1) Grantee shall keep tree trimming to a minimum; trees and shrubs or
other landscaping that are damaged by Grantee, any employee or agent of Grantee during
installation or construction shall be restored to their prior condition or replaced. Trees and
shrubs shall not be removed without the prior permission of the owner or legal tenant of the
property on which they are located.
(2) Grantee shall, at its own cost and expense, and in a manner approved
by the property owner, restore any property to as good condition as before the work causing
such disturbance was initiated. Grantee shall repair, replace or compensate a property owner
for any damage resulting from Grantee’s installation, construction, service or repair
activities.
(3) Except in the case of an emergency involving public safety or service
interruption to a large number of Customers, Grantee shall give reasonable notice to property
owners or legal tenants prior to entering upon private premises. Nothing herein shall be
construed as authorizing access or entry to private property, or any other property, where
such right to access or entry is not otherwise provided by law, easement, and/or an
agreement with the Town. For the installation of pedestals or other major construction or
installation projects on private property, Grantee will use reasonable efforts to provide
advance notice of work on or use of such private property. In the case of an emergency,
Grantee shall attempt to contact the property owner or legal tenant in person, and shall leave
a door hanger notice in the event personal contact is not made. Notwithstanding the
foregoing, if another Person’s property will be affected by work requested by a Customer or
potential Customer, Grantee shall endeavor to provide notice to that Person as well.
54
(4) Grantee personnel shall clean all areas surrounding any work site and
ensure that all cable materials have been disposed of properly.
3.4 Services for Customers with Disabilities
Grantee will use reasonable good faith efforts to meet the special needs of Customers with
disabilities.
3.5 Notification to Customers
(A) Grantee shall provide written information on each of the following areas at
the time of installation of service, at least annually to all Customers, and at any time upon
request.
(1) Products and services offered;
(2) Prices and options for programming services and conditions of
subscription to programming and other services;
(3) Installation and service maintenance policies;
(4) Instructions on how to use the Cable Service;
(5) Channel positions programming carried on the Cable System; and,
(6) Billing and complaint procedures.
(B) Customers will be notified of any changes in rates, programming services or
channel positions as soon as possible in writing consistent with applicable law. Notice must
be mailed to Customers a minimum of thirty (30) days in advance of such changes if the
change is within the control of Grantee. In addition, Grantee shall notify Customers by mail
thirty (30) days in advance of any significant changes in the other information required by
Section 3.5(A). Notwithstanding any other provision herein, Grantee shall not be required
to provide prior notice of any rate change that is the result of a regulatory fee or any other
fee, tax, assessment, or charge of any kind imposed by any Federal or State agency, on the
transaction between Grantee and the Customer.
(C) All officers, agents, and employees of Grantee or its contractors or
subcontractors who are in personal contact with Customers shall have identification cards
bearing their name and photograph. Grantee shall account for all identification cards at all
times. Every vehicle of Grantee shall be clearly visually identified to the public as working
for Grantee. All CRSs shall identify themselves orally to callers immediately following the
greeting during each telephone contact with the public.
3.6 Customer Privacy
(A) Grantee shall not monitor cable television signals to determine the individual
viewing patterns or practices of any Customer without prior written consent from that
55
Customer, except as needed to maintain System integrity or as otherwise permitted by
Federal Law.
(B) Grantee shall not sell or otherwise make available Customer lists or other
personally identifiable Customer information without prior written Customer consent, except
as otherwise permitted by Federal Law. Grantee is permitted to disclose such information if
such disclosure is necessary to render, or conduct, a legitimate business activity related to a
Cable Service or other service provided by Grantee to its Customers.
3.7 Safety
Grantee shall install and locate its facilities, Cable System, and equipment in compliance
with all federal, state, local, and company safety standards, and in such manner as shall not
unduly interfere with or endanger persons or property. Whenever a Grantee receives notice
that an unsafe condition exists with respect to its equipment, Grantee shall investigate such
condition immediately, and shall take such measures as are necessary to remove or eliminate
any unsafe condition.
SECTION 4. COMPLAINT PROCEDURE
4.1 Complaints to Grantee
(A) Grantee shall establish written procedures for receiving, acting upon, and
resolving Customer complaints, and crediting Customer accounts and shall publicize such
procedures through printed documents at Grantee’s sole expense consistent with Section
3.5(A) of these Standards.
(B) Said written procedures shall prescribe a simple manner in which any
Customer may submit a complaint by telephone or in writing to Grantee that it has violated
any provision of these Customer Service Standards, any terms or conditions of the
Customer’s contract with Grantee, or reasonable business practices.
(C) At the conclusion of Grantee’s investigation of a Customer complaint, but in
no more than thirty (30) calendar days after receiving the complaint, Grantee shall notify the
Customer of the results of its investigation and its proposed action or credit.
(D) Grantee shall also notify the Customer of the Customer’s right to file a
complaint with the Town in the event the Customer is dissatisfied with Grantee’s decision,
and shall thoroughly explain the necessary procedures for filing such complaint with the
Town.
(E) Grantee’s complaint procedures shall be filed with the Town prior to
implementation.
4.2 Complaints to the Town
(A) Any Customer who is dissatisfied with any proposed decision of Grantee or who has
not received a decision within the thirty (30) day period as required with respect to an
unresolved complaint shall be entitled to have a written complaint reviewed by the Town or
its designee.
56
(B) The Customer may initiate the review by filing a written complaint together
with Grantee’s written decision, if any, with the Town.
(C) The Customer shall make such filing and notification within thirty (30) days
of receipt of Grantee’s decision or, if no decision has been provided, within forty (40) days
after filing the original complaint with Grantee. The Customer shall notify Grantee that a
complaint has been filed with the Town by mailing a copy of the complaint to Grantee by
certified mail, return receipt requested.
(D) Grantee shall file a written response to the complaint with the Town within
fifteen (15) days of receipt of a copy of the complaint from the Customer.
(E) If the Town or its designee decides that further evidence is warranted, the
Town or its designee may require Grantee and the Customer to submit, within ten (10) days
of notice thereof, a written statement of the facts and arguments in support of their respective
positions.
(F) Grantee and the Customer shall produce any additional evidence, including
any reports from Grantee, which the Town or its designee may deem necessary to an
understanding and determination of the complaint.
(G) The Town or its designee shall issue a determination within fifteen (15) days
after examining the materials submitted, setting forth its basis for the determination.
(H) The Town or its designee may extend these time limits for reasonable cause
and may intercede and attempt to negotiate an informal resolution.
(I) If the Town determines that the Customer’s written complaint is valid and
that Grantee did not provide the complaining Customer with the proper solution and/or
credit, the Town may require Grantee to grant a specific solution in accordance with the
Grantee’s credit/refund policy or resolve the matter as otherwise mutually agreed upon by
the Grantee and the Town. If the Town finds that the Customer’s written complaint has no
validity, the complaint shall be dismissed with no further action being taken.
4.3 Overall Quality of Service
The Town may evaluate the overall quality of Customer service provided by Grantee to
Customers:
(A) In conjunction with any performance review provided for in the Agreement
with the Town; and,
(B) At any other time, at its sole discretion based on the number of written
Customer complaints received by Grantee and the Town, and Grantee’s response to those
complaints.
57
(C) If there is an uncured breach of a material provision of these Customer
Service Standards or pattern of repeated violations of any provision of these Customer
Service Standards, then the Town may require the Grantee to hire, at its expense, a
qualified consultant to make an independent review of the Cable System to confirm that
the Grantee and the Cable System are in substantial compliance with the terms and
conditions of these Customer Service Standards as well as all FCC Technical Standards.
Prior to commencement of this review, the consultant shall contact the Town and confirm
any specific areas of interest by the Town which should be reviewed. Upon completion
of the report, the consultant shall submit such report to the Town confirming the status of
Grantee’s Cable System and setting forth any areas of noncompliance.
4.4 Non-Compliance with Customer Service Standards.
Non-compliance with any provision of these Customer Service Standards is a violation of
these Customer Service Standards.
SECTION 5. MISCELLANEOUS
5.1 Severability
Should any Section, subsection, paragraph, sentence, clause, phrase, term, or provision of
these Standards be determined to be illegal, invalid, or unconstitutional by any court or
agency of competent jurisdiction with regard thereto, such determination shall have no effect
on the validity of any other Section, subsection, paragraph, sentence, clause, phrase, term, or
provision of these Standards, each of the latter of which shall remain in full force and effect.
5.2 Non-Waiver
Failure to enforce any provision of these Standards shall not operate as a waiver of the
obligations or responsibilities of Grantee under said provision, or any other provision of
these Standards.
Page 1
Town Attorney Memo
To: Honorable Mayor Pinkham
Board of Trustees
From: Gregory A. White, Town Attorney
Date: December 3, 2012
RE: Resolution No. 20-12 Pole License Agreement - Baja
Background:
Baja Broadband Operating Company, LLC is the current Franchisee under the Cable
Television Permit Agreement dated July 27, 1993, as amended. Baja and Town
representatives have negotiated a new proposed Cable Television Agreement which will
be reviewed by the Town Board on December 11, 2012. This proposed License
Agreement for the use of Town utility poles between Baja and the Town provides for a
non-exclusive right of Baja to make attachment of its facilities to Town owned poles. A
summary of the terms and conditions of the proposed License Agreement is as follows:
1. Term. The term is ten years which is the same period as the proposed Cable
Television Agreement.
2. Pole Attachments. The Agreement provides Baja with the right to attach its
facilities to Town owned poles only. Use and attachment to any other Town
facilities are subject to separate written agreement between the parties.
3. License non-exclusive. Baja’s license is non-exclusive and the Town has and
may enter into other pole license agreements with third parties.
4. Usage Rate. For 2012 – 2013, the usage rate shall be $3 per pole; 2014 shall be
$3.25 per pole; 2015 shall be $3.50 per pole; and 2016 shall be $4.00 per pole
through the remaining term of the Agreement.
5. Other costs. Baja is responsible for costs incurred by the Town with regard to
use of the Town’s poles by Baja.
6. Safety. The License Agreement addresses safety concerns for pole attachments
including recognition that the primary purpose of Town’s poles is for electric
distribution.
7. Construction. The License Agreement addresses construction and relocation of
attachments by either the Town and/or the Licensee or by a third party.
8. Liability, Indemnity, and Insurance. The License Agreement addresses liability,
indemnity, and insurance requirements of Licensee for attachment to the Town
poles.
9. System-wide Inventory. The License Agreement provides that the Town may
conduct a system-wide inventory of its poles and attachments to its poles.
Resolution No. 20-12 approves the License Agreement with Baja.
Budget:
Revenue to the Town’s Light and Power Department from this License Agreement is
substantially similar to current revenue received by the Light and Power Department.
Revenue will increase in subsequent years pursuant to the stepped up usage charge.
Staff Recommendation:
The Town retained River Oaks Communications Corporation to represent the Town in
the negotiations of this new Pole Attachment Agreement. River Oaks Communications
has stated to Town Staff that this new Agreement is a modern and favorable Agreement
and has recommended that the Town Board approve this Agreement. Based upon
River Oaks Communications’ recommendation and Town Staff experience with Baja,
Staff recommends approval of Resolution No. 20-12.
Sample Motion:
I move to approve/deny Resolution No. 20-12.
RESOLUTION NO. 20-12
APPROVING A LICENSE AGREEMENT FOR USE OF THE
TOWN’S UTILITY POLES
WHEREAS, Baja Broadband Operating Company, LLC (“Baja”) is the
current Franchisee pursuant to the terms and conditions of the Cable Television
Permit Agreement dated July 27, 1993, including all amendments; and
WHEREAS, Baja is a successor to Electronic Endeavor, Incorporated, a
licensee for use of poles owned by the Town and located within the Town’s Light
and Power service area; and
WHEREAS, Baja desires to provide cable, internet, telephone, and other
lawful communication services within the Town; and
WHEREAS, the Town Board has approved a Cable Television Agreement
granting Baja the non-exclusive right to provide cable services within the Town
for a period of ten years; and
WHEREAS, Baja and the Town have negotiated a new License
Agreement for the use of utility poles owned by the Town; and
WHEREAS, the Town Board has determined to grant Baja a non-
exclusive license to use the Town’s poles pursuant to the terms and conditions
set forth in the License Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF
TRUSTEES OF THE TOWN OF ESTES PARK as follows:
1. The Board of Trustees hereby approves the License Agreement for the
use of utility poles between the Town of Estes Park, Colorado and Baja
Broadband Operating Company, LLC as more fully set forth on Exhibit
A, attached hereto and incorporated herein by reference.
2. The appropriate officials of the Town of Estes Park are hereby
authorized to execute the License Agreement.
PASSED AND ADOPTED at a regular meeting this ____ day of ____________,
2012.
Mayor
ATTEST:
Town Clerk
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LICENSE AGREEMENT
FOR THE USE OF UTILITY POLES
BETWEEN THE TOWN OF ESTES PARK, COLORADO
AND BAJA BROADBAND OPERATING COMPANY, LLC
This License Agreement for the Use of Utility Poles (“Agreement”) is entered into this 11th day
of December, 2012 by and between the Town of Estes Park (“Town”) and Baja Broadband
Operating Company, LLC (“Licensee”).
WHEREAS, Licensee desires to provide cable, internet, data transmission and other
lawful communication services within the Town; and
WHEREAS, Licensee will need to place and maintain cables, equipment and facilities
within the Town and desires to place such cables, equipment and facilities on various Poles and
easements owned by the Town; and
WHEREAS, the Town is willing to grant Licensee a revocable, non-exclusive license to
use certain Poles on the terms and conditions set forth in this Agreement and subject to the terms
of the Town Code as it may be amended from time to time.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions
herein contained, the Town and Licensee do hereby mutually covenant and agree as follows:
ARTICLE 1
DEFINITIONS
A. Annual Usage Charge means the recurring charge that Licensee is to pay the
Town annually under this Agreement for the use of the Town’s Poles. The Annual Usage
Charge is in addition to any Costs and filing fees Licensee may incur during a Contract Year. To
the extent lawfully permitted, the Annual Usage Charge for any Contract Year shall be the
number of Poles shown on the Town’s records to exist as of December 1 of the preceding Year
multiplied by the Usage Rate for the applicable Contract Year. Unless otherwise expressly
provided in this Agreement, Annual Usage Charges are not refundable.
B. Application means the Town prescribed application sheet, together with all
required prints, maps, proposed routes, project descriptions and proposed schedules that Licensee
must submit, in full, to the Town in order to request and be granted an Attachment License for a
particular Pole or group of Poles.
C. Attachment means any cable owned, controlled or used by Licensee, together
with any associated messenger strand, guy wires, anchors and other appurtenant and incidental
facilities within 12 inches of the point of attachment and affixed directly to a Pole or an
attachment owned by a Third Party User, as the case may be.
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D. Attachment License means the revocable, non-exclusive right of Licensee to
make an Attachment to a Pole under this Agreement, pursuant to the Town’s approval of an
Application and subject to any modifications, conditions and specifications imposed by the
Town when approving the Application and all Design Documents issued by the Town with
respect to the Attachment and Pole in question. An Attachment License authorizes Attachments
for all lawful communications purposes.
E. Cable means a conductor, wire or fiber or a bound or sheathed assembly of
conductors, wires or fibers used as a wire communications or transmission medium (a bare
messenger is also a Cable).
F. Communications Space means the area on any given Pole, below and
sufficiently remote from the Supply Space required by the National Electrical Safety Code,
within which Attachments and Pole Contacts may be located.
G. Contract Year means any calendar year during which this Agreement is in effect,
beginning January 1 and ending December 31, except that the first Contract Year shall run from
the Effective Date until December 31 of that year and the final Contract Year shall run from
January 1 of that year until the date of termination.
H. Contractor includes subcontractors.
I. Cost means the total reasonable cost to the Town for any particular task under this
Agreement that is not otherwise recovered in the Annual Usage Charge. Tasks include:
reasonable labor, material, equipment usage, outside Contractor and vendor charges, overhead
and general and administrative expenses. Costs may also be incurred for engineering and
engineering review, Make-Ready construction, inspections and oversight, auditing and other
services. Costs shall be paid by Licensee in accordance with either of the following:
1. Any advance estimate provided by the Town, in which event the Town
shall have the right to refuse to incur the Costs until the estimate is paid; and/or
2. Any final invoice submitted by the Town. In the event an advance
estimate was paid by Licensee for Costs, the final invoice will reflect such payment.
Licensee shall be reimbursed for payment of any estimated charges that exceed actual
reasonable charges incurred.
J. Design Documents mean all specifications, drawings, schematics, blueprints,
engineering documents and written requirements for materials, equipment, design, construction
and workmanship issued by the Town to Licensee with respect to Make-Ready and installation
work on a particular Attachment or Pole or group of Attachments or Poles.
K. Effective Date means December 11, 2012.
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L. Electrical Code means the National Electrical Safety Code (NESC) and the
National Electrical Code (NEC).
M. Filing Fee means the non-refundable fee charged to Licensee for filing an
Application for an Attachment License. Filing Fees will be set by Town policy. The Filing Fee
is solely to compensate the Town for reviewing and processing an Application and does not
include or offset Costs or Annual Usage Charges.
N. Make-Ready means all work reasonably required to accommodate Licensee’s
Attachments on a Pole with respect to the Town and Third Party User needs and in compliance
with the Electrical Code, generally accepted engineering and construction practices and
applicable laws.
O. Pole means any electric distribution pole owned by the Town that supports
electric lines. Unless otherwise agreed by the Town with respect to a particular pole, the term
Pole does not include street lighting, traffic signal or night watchman poles; any structure or
facility within a substation; or any structure not used for electric power distribution.
P. Pole Contact means the point or contiguous area on a Pole at which one or more
of Licensee’s Attachments make physical contact with the Pole or a Third Party user’s
Attachment.
Q. Supply Space means the area on any given Pole, above the Communications
Space, that is reserved for the placement of electric supply lines, electrical equipment and other
Town facilities. Licensee may not place any Attachments or Pole Contacts in the Supply Space.
R. Third Party User means any third party that has, or may be granted, a license or
other right to attach with respect to a Pole.
S. Unauthorized Attachment means an Attachment or any other affixing or placing
of Licensee’s facilities onto Town property for which Licensee does not have a valid Attachment
License.
T. Usage Rate means, for each given Contract Year, the amount Licensee must pay
the Town for each Pole.
ARTICLE 2
SCOPE AND TERM OF AGREEMENT
2.1 General Purpose In accordance with the provisions of this Agreement, the Town
may issue Attachment Licenses to Licensee on the terms and conditions set forth herein. Before
Licensee makes any Attachment to or begins any work on a Pole, it shall file an Application and
await the Town’s issuance of an Attachment License and Design Documents with respect to that
particular Attachment or Pole. The Town may only deny an Attachment License with respect to
any particular Pole for reasons of capacity, safety, reliability or generally-accepted engineering
purposes.
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2.2 Term The term of this Agreement is ten (10) years, beginning on the Effective
Date, unless sooner terminated. Also, in addition to the foregoing, if Licensee’s cable Franchise
Agreement at any time is terminated or expires under applicable law, then this Agreement shall
concurrently terminate or expire.
2.3 Existing Facilities Only The Town is under no obligation to add, build, keep,
maintain or replace Poles or any other facilities for the use or convenience of Licensee. The
maintenance, replacement, removal, relocation or addition of Town Poles and facilities shall
remain within the reasonable discretion of the Town.
2.4 Poles Only This Agreement addresses only Attachments to Town Poles.
Attaching to or using other Town property and facilities, including without limitation conduits,
buildings and towers, is prohibited without further written agreement by the Town.
2.5 Town Rights-of-Way Nothing in this Agreement shall be construed to grant
Licensee any right or authorization to use or occupy the public streets or rights-of-way of the
Town, except for the placement of Attachments on Poles or other facilities covered by this
Agreement which may be located in the public streets or rights-of-way.
2.6 Private Easements Licensee understands that some Poles may be located on
dedicated easements over private property that, by their terms, restrict the use of the easement to
the Town for the sole purpose of electric distribution or transmission. Nothing in this Agreement
shall compel the Town to extend any property rights it does not have. Nothing in this Agreement
and no action by the Town shall be construed to offer, grant or approve any right or license to
use such easement or to affix an Attachment to a Pole within such easement without the consent
of the owner of the property to which the easement is appurtenant. The Town has no obligation
to expand or obtain rights in such easement on Licensee’s behalf. It is the sole obligation of
Licensee to obtain the necessary consent or additional easement rights, if any, at Licensee’s own
expense.
2.7 Eminent Domain The Town is under no obligation to exercise any power of
eminent domain on Licensee’s behalf.
2.8 No Property Rights In Poles All Poles shall remain the property of the Town
and no payment made by Licensee shall create or vest in Licensee any ownership right, title, or
interest in any Pole, but Licensee’s interest shall remain a bare license. The existence of such a
license shall not in any way alter or affect the Town’s right to use, change, operate, maintain or
remove its Poles and facilities as it sees fit. If the Town’s use of its Poles materially and
adversely affects Licensee’s use and operation of an attachment, Licensee may, by written notice
to the Town, remove its Attachments from any adversely affected Pole. Such termination shall
be implemented by written notice to the Town. For each such termination, Licensee shall be
entitled to a pro-rata refund of any pre-paid Annual Usage Charge attributable to the terminated
Attachment.
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2.9 License Not Exclusive Licensee acknowledges that the Town has entered into
before, and may enter into in the future, similar or other agreements concerning the use of Poles
by third parties, including Licensee’s competitors. Nothing in this Agreement shall be construed
to limit or in any way affect the Town’s right or ability to enter into or honor other agreements,
or to grant any rights, licenses or access concerning any Pole on a competitively-neutral and non-
discriminatory basis.
2.10 Town Priority The primary purpose of a Pole is electric distribution, and the
Town reserves to itself first priority in the use of a Pole. In the event of any actual conflict
between the use of a Pole by the Town and Licensee, the use of a Pole for the distribution of
electric power to the Town customers shall prevail and have priority over Licensee’s use of the
Pole. The Town retains and shall have exclusive use of the Supply Space. The Town shall in
good faith diligently pursue all reasonable measures to accommodate Licensee’s authorized
attachments.
2.11 Discretion of the Town The Town reserves the right to deny any Application,
reserve any Pole to its own use or modify any Pole if, in the Town’s reasonable judgment, there
are capacity, safety, reliability or engineering reasons for such a denial.
2.12 No Cost or Expense to the Town The engineering, construction, installation,
use, operation and maintenance of Licensee’s Attachments shall be at Licensee’s sole expense.
Unless otherwise expressly provided, nothing in this Agreement shall be construed to require the
Town to expend any funds or to incur or bear any Cost or expense.
2.13 Electric Service Requirements All electric service required by Licensee will be
supplied by the Town’s Light and Power Department, and charges therefore shall be based on
applicable rates. All electric service will be metered, and service to the Licensee will be
extended under the prevailing rules and regulations of the Light and Power Department.
ARTICLE 3
USAGE RATES AND CHARGES
3.1 Payment Due Upon Approval The Town’s approval of an Attachment License
shall be conditioned on Licensee’s payment, within 30 days of approval, of the then current
Usage Rate for each approved Attachment, prorated to reflect the number of months remaining
in the Contract Year after the Town’s invoice, with any partial month being considered to be a
full month.
3.2 Usage Rate For 2012 and 2013, the Usage Rate shall be $3.00 per Pole. The
Usage Rate for 2014 shall be $3.25 per Pole, and the Usage Rate for 2015 shall be $3.50 per
Pole. For the balance of the term of the Agreement starting in 2016, the Usage Rate shall be
$4.00 per Pole. The Town may not charge a Usage Rate in excess of what is permitted by
applicable law.
3.3 Annual Usage Charges The Town has invoiced Licensee for one-half of the
Annual Usage Charge for 2012 and will invoice Licensee for the balance in January 2013. Also,
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in January of each Contract Year (starting in 2013) and continuing thereafter until the expiration
or termination of this Agreement, the Town will invoice for, and Licensee shall pay, within 45
days after receipt of the invoice, the Annual Usage Charge for the new Contract Year.
3.4 Invoice Disputes If Licensee believes in good faith that a Pole count contained in
an Annual Usage Charge invoice is incorrect, it may pay the invoice under protest. To protest an
invoice, Licensee must give the Town written notice of the nature of its protest no later than the
due date for payment of the invoice. The parties shall promptly meet to resolve the discrepancies
in their records to determine the correct Pole count. If the parties are unable to resolve a
discrepancy as to the correct count, the parties shall jointly conduct a physical inventory of a
statistically significant number of geographical grids or other mutually agreeable census to
determine the correct count.
3.5 Adjustments If, upon resolution of a dispute between the parties under
paragraph 3.4, a refund is due to Licensee, the Town shall refund the amount of the overcharge
together with interest at the rate specified in paragraph 16.5 from the date of the Town’s receipt
of the protested Annual Usage Charge payment. If Licensee owes additional money, a corrected
invoice shall be issued by the Town for the additional Annual Usage Charge due, plus accrued
interest at the rate specified in paragraph 16.5 from the due date of the original invoice.
3.6 No Allowances Unless otherwise expressly stated in this Agreement, there shall
be no offsets against any sums due under this Agreement, or any other allowances, for system
improvement, materials or labor supplied, upgrading, life extension or other direct or incidental
benefits conferred by Licensee upon the Town. All such improvements and benefits belong
solely to the Town, and the fact that such improvements or benefits may accrue shall in no way
alter or affect Licensee’s obligations under this Agreement.
ARTICLE 4
ATTACHMENT LICENSES
4.1 Attachment License Required Before Licensee may make any contact or
Attachment or perform any work on a Pole other than inspections necessary for preparing an
Attachment Application, and before Licensee may place any Attachment or other facility on the
Town property or easements, Licensee must first obtain and accept an Attachment License.
Licensee must have an Attachment License for each Pole to which Licensee’s Attachments are to
be affixed and for each separate Attachment to the Pole. The foregoing notwithstanding, in no
event shall Licensee be required to submit an Application or receive approval from the Town
prior to installing a service drop on any Pole on which Licensee maintains an authorized
Attachment, provided that the service drop installation conforms to any applicable technical
requirements and specifications set forth in Article 5 herein, and provided further that the
Licensee submits an Application for such service drop within a reasonable time thereafter.
4.2 Overlashing Licensee need not obtain an additional and separate Attachment
license to overlash to an existing Licensee Attachment or Pole Contact, nor shall the Town
consider such an overlashed Attachment as a separate Attachment for the purposes of assessing
the Annual Usage Charge. Licensee may not allow a third party to overlash to Licensee’s
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attachment or Pole Contact without such party first having an agreement with and Attachment
License from the Town. Poles are the sole property of the Town.
4.3 Application Process The Application must be submitted in the then-approved
Town format. The Application form, and all required supporting documentation and other
procedures, are within the discretion of the Town and may change from time to time without
prior notice. Applications made on a multiple pole or project basis are subject to further Town
policies and procedures that may change from time to time without prior notice. The Town may
reject entirely an incomplete Application, or it may request additional information to support the
Application, in which event the requested information shall be promptly furnished.
4.4 Filing Fee The Filing Fee shall be paid at the time the Application is submitted.
No Application will be considered before payment of the Filing Fee.
4.5 Approval The Town may only deny or modify any Attachment Application if, in
the Town’s reasonable judgment, such denial or modification is necessary for reasons of lack of
capacity, safety, reliability or engineering standards. The denial, approval or modification of an
Attachment License shall be governed by the terms of this Agreement and applicable law.
However, Licensee may request the Town to reconsider a denial or modification of an
Attachment Application. The Town may approve an Application as submitted, approve it on a
modified or conditional basis, or may deny the Application in accordance with the policies
adopted by the Town. The Town may also refuse to issue an Attachment License when, based
on its reasonable judgment, it determines that the space on a Pole is required for its own
exclusive use or that Pole may not reasonably be arranged or replaced to accommodate
Licensee’s proposed Attachment. By way of example only and not by limitation, an Application
may be denied if, according to the Town’s reasonable judgment, the proposed Attachment:
A. is of excessive size or weight or would otherwise subject a Town Pole to
unacceptable levels of stress and cannot be replaced with a taller/stronger pole;
B. would jeopardize the reliability or integrity of the electric system or of
individual Poles;
C. would present a safety hazard to Town employees or the public;
D. would impair the Town’s ability to operate or maintain a Pole that cannot
be replaced with a taller and/or stronger pole;
E. would require an unacceptable change or addition to a Pole; or
F. would expose the Town, its ratepayers or other users to increased liability
or financial risk.
4.6 Order of Approval Applications concerning a particular Pole will be considered
and acted upon by the Town in the order in which they are filed. For purposes of evaluating an
Application with respect to Pole capacity and existing Third Party User Attachments, the Town
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will consider not only all existing attachments but also all valid Attachment Licenses and
reserved Town space for future uses.
4.7 Engineering When processing an Application, the Town shall have the right to
perform, or have a firm retained by the Town perform, its own engineering and field evaluation,
irrespective of whether Licensee has performed such services for its own benefit. Reasonable
engineering and field evaluation expenses shall be paid by Licensee. The Town’s engineering
requirements and determinations shall be within its reasonable discretion. The Town may
consider but is not bound by Licensee’s own engineering determinations. With respect to a
particular Pole, the Town’s engineering shall take into account and allow space for all
Attachment Licenses which are valid for that Pole. In granting an Attachment License, the Town
shall issue to Licensee the Design Documents governing the approved Attachment(s).
4.8 Attachment License Expiration All Attachment Licenses and Design
Documents and any rights conferred thereunder shall expire within 45 days of issuance (or such
longer period as the parties may agree to in writing), unless all Make-Ready and installation
work has occurred in accordance with the Design Documents before the end of such period. If
an Attachment License for a Pole expires, Licensee shall re-apply for an Attachment License
before working on or making an Attachment to that Pole.
ARTICLE 5
GENERAL REQUIREMENTS
5.1 Work Site Safety In performing any work on or near Poles supporting energized
electric lines, Licensee, and its Contractors, agents and employees shall comply with all federal,
state and local laws, rules and regulations governing work in proximity to energized electric
lines, including without limitation, those promulgated by the Occupational Safety and Health
Administration.
5.2 Electrical Code Licensee, and its Contractors, agents and employees, and all
work, contacts and Attachments on a Pole shall at all times comply with then current Electrical
Code.
5.3 Design Documents All Make-Ready, installation, and other work performed by
Licensee on a Pole or Attachment shall at all times comply with the Design Documents and
Town requirements.
5.4 Service Interruptions Licensee shall not cause any interruption of the Town or
Third Party User services without first obtaining the Town’s express written consent. If it is
necessary for the Town to de-energize any equipment or lines for Licensee’s benefit, Licensee
shall reimburse the Town in full for all Costs. In the event Licensee damages any of the Town’s
equipment or lines or causes any service interruption, Licensee, at its sole expense, shall
immediately do all things reasonable to avoid injury and further damage, direct and incidental,
resulting therefrom and shall notify the Town as soon as practicable under the circumstances.
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5.5 Town Oversight The Town shall have the right to conduct on-site field oversight
and inspections of Licensee’s Attachments, work and operations on Poles and in the Town
easements. The Town shall at all times have unrestricted access to Poles and to all work sites of
Licensee and Licensee’s contractors. Both the Town and the Town’s representative at any Pole
site shall have complete and final authority to order the immediate suspension of Licensee’s
construction or installation activities if the Town or the Town’s representative, in its reasonable
judgment, determines the action to be necessary for reasons of safety, reliability, engineering, or
a property owner complaint. In the event of an oral suspension order, the Town shall send
written notice to Licensee within three business days after such suspension, identifying the
alleged violation. Such suspension shall be in effect until such time as the Licensee cures, at
Licensee’s sole Cost, the alleged violation. In no event shall the Town be responsible for any
damages, losses or Costs incurred by Licensee as a result of such work stoppage. Licensee’s
failure to obey a suspension order shall constitute a material breach of this Agreement.
5.6 Laws To the extent that federal or state law or the Town Code requires Licensee
to possess a valid franchise or construction permit before engaging in a particular act, Licensee
must comply with such requirement before beginning Make-Ready construction or installing
Attachments. Nothing in this Agreement shall be construed as waiving other Town requirements
or permitting the construction of facilities other than Attachments. Attachments must conform to
local, state and federal law. Licensee’s use of any Pole and Licensee’s Attachments shall at all
times conform to the requirements of the Town Code and the policies promulgated by the Town
pursuant thereto.
5.7 Other Permits Licensee shall apply for and obtain all licenses, permits or other
authorizations required to provide its service or to use, operate or maintain its Attachments.
5.8 Taxes and Liens Licensee shall pay all taxes and assessments lawfully levied on
Licensee’s Attachments and any tax, assessments, fee, or charge levied on Poles solely because
of their use by Licensee. In no event shall Licensee permit any lien to be filed or to exist upon
any Poles or the Town property as a result of any claim against Licensee. Licensee shall
promptly pay upon receipt of written notice from the Town all such liens together with all fees
and Costs necessary to discharge same, or shall bond around such liens in the manner provided
by law.
5.9 Electrical Code Conflicts In the event of a difference, conflict or discrepancy
between or among the requirements or practices of any Electrical Code or safety regulations,
laws or industry standards, the following rules shall apply: (A) if one specification or practice is
more stringent than the other, the more stringent shall apply; (B) if one is not more stringent than
the other, the NESC shall govern to the extent permitted by law; (C) if the first two rules are
insufficient to resolve the conflict in a clear and unambiguous manner, the Town shall determine
which standard shall apply, giving highest priority to safety considerations.
5.10 Design Document Conflicts In the event Licensee believes a Design Document
is inconsistent with the Electrical Code or applicable law, Licensee shall refer the matter to the
Town for its reasonable review.
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ARTICLE 6
MAKE-READY CONSTRUCTION
PART A – GENERAL PROVISIONS
6.1 Performance of Make-Ready Work The Town shall be under no obligation to
change, modify or replace any Pole to accommodate Licensee. If, however, the Town elects, in
its reasonable discretion, to change, modify or replace a Pole or any existing attachments to
accommodate a proposed Attachment, all Make-Ready Costs necessary to accommodate the
attachment shall be borne solely by Licensee, including without limitation, Costs of planning,
engineering, construction and Pole replacement. The Town may in its sole discretion:
A. opt to perform the necessary Make-Ready work itself, in which case Part
B of this Article 6 shall apply, though in no event shall this Agreement be construed to require
the Town to undertake Make-Ready construction, or
B. opt to authorize Licensee or another applicant to perform the necessary
Make-Ready work, in which case Part C of this Article 6 shall apply.
6.2 Third Party Facilities Make-Ready Costs that are to be paid by Licensee
include all Costs and expenses to relocate or alter the attachments or facilities of any preexisting
Third Party User as may be necessary to accommodate Licensee’s Attachment, but, if a Third-
Party User benefits from the Make-Ready work, Licensee may charge the third-party a pro-rata
portion of the make-ready costs. Licensee shall provide at least 30 days notice to each Third
Party User of its intent to relocate or alter their facilities and make all other necessary
arrangements directly with the affected Third Party User.
PART B – CONSTRUCTION BY THE TOWN
6.3 Scope This Part B of Article 6 shall apply only in the event the Town has opted
to perform the Make-Ready work on a Pole.
6.4 Construction If Licensee’s proposed Attachment necessitates changes in or
additions to a Pole or the relocation or modification of the Town or Third Party
User facilities on a Pole, and the Town opts in its reasonable discretion to perform the necessary
Make-Ready work, the Town shall, within fourteen (14) days after completing the pole survey,
submit to Licensee an estimate of the Cost for such Make-Ready work and an estimated
completion date. Licensee shall have fourteen (14) days to accept the tendered estimate. Upon
receipt of Licensee’s approval of the Cost estimate, the Town shall make a good faith effort to
proceed with the work in substantial compliance with the proposed schedule. In no event,
however, shall the Town be liable to Licensee or any other person for failure to complete the
work in accordance with the proposed schedule, but if it cannot perform the work on or within 45
days of notifying Licensee of its intent to perform the work, Licensee may perform the make-
ready work pursuant to Article 6.1.B.
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6.5 Cost Allocation for Multiple Applications Notwithstanding any other provision
of this Agreement, if another entity files an Application concerning the same Pole within 30 days
before or after Licensee’s Application, the Town shall equitably divide the engineering and
Make-Ready and Pole replacement Costs incurred to accommodate all approved Attachments,
taking into account the order in which the Applications were filed and the Costs occasioned by
each applicant.
PART C – CONSTRUCTION BY LICENSEE
6.6 Scope This Part C of Article 6 shall apply only in the event Licensee has been
given approval by the Town to perform Make-Ready work on a Pole.
6.7 Construction All work performed by or on behalf of Licensee pursuant to an
Attachment License shall be done in a good and workmanlike manner. Licensee’s acceptance of
an Attachment License constitutes Licensee’s agreement to be bound by its terms and conditions.
All Attachments, contacts, Make-Ready work and other work performed or maintained by
Licensee on a Pole shall comply with Electrical Code, the Design Documents and other laws and
standards as provided in this Agreement. Any deviation shall constitute a material default under
this Agreement which Licensee will be afforded a reasonable opportunity to cure. If Licensee
does not cure the default within a reasonable time the Town may pursue other remedies available
to it.
6.8 Pole Replacement The Town retains reasonable discretion to determine when it
is reasonably necessary to replace a Pole and to determine the maximum height a Pole may
reach. Pole replacement Costs shall be borne by Licensee if, because of inadequate capacity,
approval of Licensee’s Attachment causes the need for the replacement.
6.9 Coordination of Construction Efforts In the event multiple entities have been
granted Attachment Licenses for the same Pole and a disagreement arises between them as to
construction and installation schedules, the Town shall have the right to require a representative
of Licensee who has authority to agree on these issues to attend a meeting called by the Town to
discuss and agree on these issues. The Town’s decision on this matter shall be final and binding.
6.10 Required Authority to Proceed An Attachment License is not an authority to
proceed with Make-Ready work on a Pole. Before beginning Make-Ready work on a Pole,
Licensee shall give the Town not less than 14 days written notice of the Pole location, the
proposed date on which work will commence and whether any electrical service interruptions or
de-energizations will be required. If the Town does not approve of such date, the parties shall
mutually agree on a date for construction to take place and shall make all necessary
arrangements and schedules for line and equipment de-energization. Licensee shall not begin
Make-Ready work without authority to proceed from the Town, and shall make a good faith
effort to comply with the agreed upon construction and de-energization schedule. Licensee shall
be responsible for coordinating its efforts with the Town field inspection personnel and for any
actions or notifications required by the Light and Power Department.
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6.11 Service Interruptions In the event Licensee’s Make-Ready construction efforts
require a scheduled interruption in the Town or Third Party User services or otherwise require
de-energization of the Town lines, time shall be of the essence. If Licensee fails to make a good
faith effort to comply with the construction schedule as agreed upon pursuant to the preceding
paragraph, the Town may opt to immediately revoke Licensee’s Attachment License(s) for the
Poles in question and restore the interrupted power and services at Licensee’s reasonable Cost.
6.12 Contractors All work that involves moving the electric plant performed by or on
behalf of Licensee pursuant to an Attachment License shall be done by a Contractor selected by
Licensee. For all other work performed by or on behalf of Licensee, Licensee may use its own
workers and will ensure that its workers are properly trained to work in the Communication
Space. Only orderly and competent workers shall be used. Neither Licensee’s workers nor those
of its Contractors may possess any weapon, or use, possess or be under the influence of any
alcoholic or other intoxicating beverage, drug or controlled substance while performing any
work on or around a Pole. If the Town finds any Licensee or contract worker to be incompetent,
disorderly, in the possession of any weapon, in the possession of or under the influence of
alcohol or drugs, Licensee shall promptly remove such worker from all work on or around Poles,
and may not again use such worker on work on or around Poles.
6.13 Materials Licensee shall furnish all necessary materials and hardware, if
applicable, including but not limited to: poles, crossarms, mounting hardware, guys, anchors,
insulators, conductors and any associated miscellaneous hardware. All materials used by
Licensee for Make-Ready work on Poles shall be new and of good quality and free from material
defects. The use of attachment arms is prohibited without the Town’s prior written consent.
6.14 Licensee to Bear Costs All Costs and expenses to complete the Make-Ready
construction, including the transfer of the Town facilities and Third Party User Attachments,
shall be borne entirely by Licensee.
6.15 Town Property Notwithstanding paragraphs 6.13 and 6.14, all Poles, materials
and equipment installed in the Make-Ready process shall become and remain the Town’s sole
property, regardless of which entity procured or paid for it. Licensee shall execute any
documents reasonably requested by the Town to evidence the transfer of title to such poles,
materials and equipment to the Town. Licensee’s performance of Make-Ready work or payment
of any Costs (A) shall in no way create or vest in Licensee any ownership right, title or interest in
any Pole or electrical facilities, (B) shall not entitle Licensee to any offsets, credits, payments or
income from the Town’s operation of the Pole or facilities, or (C) alter or affect the Town’s
rights under this Agreement, or (D) restrict the Town’s ability to allow access to a Pole by Third
Party Users. Licensee’s interest shall at all times remain a revocable license that is subject to the
terms of this Agreement.
6.16 Tree Trimming Licensee shall be responsible for all tree trimming which in
Licensee’s judgment is necessary for the safe and reliable installation, use and maintenance of its
Attachments, and to avoid stress on Poles caused by contact between tree limbs and Licensee’s
Attachments. All tree trimming shall be performed in accordance with then current Town tree-
trimming policies, including without limitation, those relating to owner notification and consent.
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Where tree trimming affects one or more other entities attaching to the poles, the cost of tree
trimming, included associated administrative costs, shall be shared equally by the Town,
Licensee and any other entity attaching to the pole.
6.17 Anchors and Guying Licensee shall provide all anchors and guying necessary to
accommodate the additional stress and load placed upon a Pole by its Attachments. Anchors
shall not be placed outside of the easement in which a Pole stands.
6.18 New Third Party Users Make-Ready Costs are to be paid by a new Third Party
User to the Town, Licensee and any existing Third Party User, including all Costs and expenses
to relocate or alter the Attachments or facilities of the Town, Licensee or any existing Third
Party User as may be necessary to accommodate the new Third Party User’s Attachment.
However, if any entity benefits from the Make-Ready work besides the new Third Party User,
the new Third Party User may charge the benefited party its pro-rata portion of the make-ready
costs.
ARTICLE 7
INSTALLATION AND MAINTENANCE OF ATTACHMENTS
7.1 Installation Upon (A) the Town’s acceptance of the completed Make-Ready
work, and (B) the Town’s receipt of full payment of all sums owing to the Town for engineering,
Make-Ready and other Costs, Licensee may affix its Attachments to the Pole as set forth in the
Attachment License and Design Documents.
7.2 Communication Space All Licensee Attachments and Contacts on a Pole must
remain in the Communications Space, except for attachments for power supplies. Licensee
operations in the Supply Space or in the space separating the Communications and Supply Space
are prohibited.
7.3 Maintenance Licensee shall, at its sole expense, make and maintain its
Attachments in a safe condition and in good repair, and in such a manner as to not interfere with
or interrupt the Town’s lines, facilities and services or with Third Party User attachments,
facilities and services.
7.4 No Damage Licensee shall not cause damage to Town or Third Party User
facilities or operations. If Licensee, its Contractors, agents, employees or Attachments cause
damage to facilities or operations, Licensee shall either repair or promptly reimburse the Town
or the Third Party User for all loss and expense caused by such damage. If the Town causes
damage to others facilities, the Town shall pay the actual cost for that damage. Both Licensee
and the Town shall immediately inform the other party and all Third Party Users of any damage
to their facilities.
7.5 Sag and Span Clearances Licensee shall leave proper sag in its lines and cables
and shall observe the established sag of powerline conductors and other cables so that during the
life of the Attachment minimum clearances are (A) achieved at Poles located on both sides of the
span and (B) maintained throughout the span. A minimum clearance between surfaces must be
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maintained between Licensee’s and others Cables at mid-span and between Licensee’s and
others Attachments and Pole Contacts on the Poles.
7.6 Climbing Space An unobstructed climbing space must be maintained at all times
on the face of all Poles as required by Electrical Code, as well as adequate ground access to
Poles. All Attachments must be placed as to allow and maintain a clear and proper climbing
space. Licensee shall place its Attachments on the same side of the Pole as the majority of
existing Licensee or other attachments.
7.7 Tagging Each new Attachment shall be identified at all times by an identifying
marker approved by the Town that, at a minimum, (A) is permanent in duration and not
degradable by rain or sunlight and (B) has coloring and numbering or lettering unique to
Licensee.
ARTICLE 8
MODIFICATION OF ATTACHMENTS
8.1 No Unauthorized Modifications Except for overlashing of an existing
Attachment or routine modifications as provided in Section 8.2, Licensee shall not change the
type, nature or location of any Attachment or alter its use of a Pole without prior written consent
of the Town. Licensee shall not construct any other or additional Attachments, except Licensee
may overlash to its existing Attachment without notifying the Town or obtaining a separate
Attachment License. Any Attachment changed or added in violation of this section shall be
deemed to be an unauthorized Attachment.
8.2 Routine Modifications Licensee does not need Town consent for or provide it
notice of changes incident to routine maintenance and repair or installations of service drops.
8.3 Town Mandated Modifications Within 45 days, or such other time period as
prescribed by federal law, of written request by the Town, Licensee shall move or rearrange its
Attachments in order to maximize the usable available Pole space and/or to accommodate Town
facilities. Licensee shall do so at its sole cost and risk. If Licensee fails or refuses to comply
with the directions of the Town to change, alter, improve, move, remove or rearrange any of its
Attachments, the Town may opt to change, alter, improve, move, remove or rearrange such
Attachments without incurring any liability to Licensee and at Licensee’s sole cost, or the Town
may proceed under Article 10 of this Agreement.
8.4 Emergencies In case of a situation that the Town reasonably determines to be an
emergency, the Town may move, rearrange or transfer Licensee’s Attachments without notice
and without liability to Licensee or to any other person, in which event Licensee shall also be
responsible for all Costs.
8.5 Destroyed Poles If any Pole on which Licensee has an Attachment is
substantially destroyed or damaged by fire, storm, accident or otherwise, the Town shall be
under no obligation to rebuild or replace such Pole, but may elect to terminate Licensee’s
Attachment License for such Pole without any liability to Licensee. The Town shall notify
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Licensee in writing of a termination under this paragraph, and Licensee shall be entitled to a pro-
rata refund of any prepaid but unearned Usage Rate attributable to the Attachments on such
damaged or destroyed Pole. Nothing herein shall prohibit Licensee from repairing or replacing
such damaged or destroyed Poles at Licensee’s sole cost and expense if: (A) the Town elects not
to repair or replace same, and (B) Licensee is permitted to do so under the Town Code and any
applicable easements.
8.6 Transfers of Attachments If the Town replaces an existing Pole supporting an
Attachment with a new Pole, the Town will transfer, if reasonably feasible, the Attachment to the
replacement Pole when the Town transfers its own lines and facilities, unless (A) Licensee
notifies the Town in writing that it does not desire to occupy the new Pole, or (B) other transfer
arrangements satisfactory to the Town are made in advance. Except in circumstances that the
Town reasonably determines to be an emergency, the Town shall give Licensee reasonable
advance notice of Pole replacements. Failure of Licensee to timely respond to the Town’s notice
shall be deemed an election to occupy the new Pole. Licensee shall pay all applicable transfer
fees and costs for its facilities. If Licensee opts not to occupy the new Pole, Licensee’s
Attachment License to the replaced Pole shall terminate as of the date of replacement. Licensee
shall not be entitled to a refund of any Usage Rate as a result.
8.7 Underground Conversion Upon written notice, the Town may remove its
facilities from a Pole and re-route through underground conduits. Licensee shall be responsible
for reimbursing the Town for its pro rata share of installing and paying for the underground
conduit. All of Licensee’s costs associated with such relocation underground shall be Licensee’s
responsibility. The Licensee must place its facilities underground within six (6) months or
sooner upon request of the Town. In such event, the Town shall be under no obligation to
maintain any Poles that no longer support the Town supply lines.
ARTICLE 9
INVENTORY AND INSPECTIONS
9.1 Right to Inspect The Town may inspect Licensee’s work and Attachments at
any time, except that it shall not undertake a system-wide safety inspection more than once every
two years. The Town may conduct these inspections for any purpose relating to this Agreement,
including without limitation: (A) determining compliance with the Design Documents or other
design and installation requirements; (B) determining compliance with the Electrical Code; or (3)
auditing and inventorying. To the extent that the Town designates an independent contractor to
perform such inventory, the Town must consult with Licensee. The Town shall provide the
Licensee with a written invoice, and Licensee shall pay its pro rata share, provided that Licensee
has approved such expenses in advance. The making of an inspection by the Town shall not
operate in any way to relieve Licensee or Licensee’s insurers of any responsibility, duty,
obligation or liability under this Agreement or otherwise, nor does the Town’s ability to make
inspections relieve Licensee from its obligations to exercise due care in the installation and
operation of its Attachments.
9.2 Compliance In the event any inspection of an existing Attachment reveals that
corrections or other actions are required of Licensee under this Agreement, including without
16
limitation those required for reasons of safety or structural integrity, Licensee shall make such
corrections or take the requested actions within a reasonable time after the date the Town sends
Licensee a written notice informing Licensee of the corrections to be made. The Town may also
perform such work without notice, at Licensee’s sole Cost and risk, if the Town determines in its
reasonable judgment that an emergency involving public welfare or safety considerations do not
permit advance written notice to Licensee. If Licensee fails or refuses to comply with the
directions of the Town, the Town may opt to change, alter, improve, move, remove or rearrange
such Attachments without incurring any liability to Licensee, and at Licensee’s reasonable Cost
and risk, or proceed under Article 10 of this Agreement.
9.3 System-wide Inventory Not more than once in a Contract Year, the Town may,
but is under no obligation to, conduct a system-wide inventory of all Licensee and Third-Party
User Attachments on its Poles, for which Licensee and Third-Party Users shall bear their
proportionate share of Costs. The Town will notify Licensee and Third-Party Users of the times
and places of such inventory at least three months in advance, and Licensee and Third-Party
Users may have representatives accompany the Town on the inventory. To the extent that the
Town designates an independent contractor to perform such inventory, the Town must consult
with Licensee and Third-Party Users. The Town shall provide the Licensee and Third-Party
Users with written invoices, and Licensee and Third-Party Users shall pay their pro rata share.
The Town may use the results of the inventory for purposes of calculating the Annual Usage
Charge, but may also rely upon a statistically significant number of geographical grids or other
mutually agreeable census to determine the correct count. To establish a baseline pole count,
Licensee shall conduct an inventory within 6 months after execution of this Agreement, except to
the extent that such date occurs after snowfall, and in such case, during the first month thereafter
when such inventory is practicable.
ARTICLE 10
UNAUTHORIZED ATTACHMENTS
10.1 Unauthorized Attachments Licensee shall not place any Attachments on a Pole
or other Town infrastructure except as authorized by an Attachment License. If one or more
Unauthorized Attachments are discovered, Licensee shall comply with this Article 10 or the
Town may, but shall not be required to, remove the Unauthorized Attachment without incurring
any liability to Licensee and at Licensee’s reasonable Cost. With respect to any Unauthorized
Attachment, the Town may require that Licensee submit an Application for each such
Unauthorized Attachment, together with the then-current Filing Fee and Usage Rate relating
back to the installation of the Attachment, the last attachment inventory, or back three years,
whichever is more. If such Application and charges are not received by the Town within 15 days
of notice of the Unauthorized Attachment, the Town may require that Licensee remove such
Unauthorized Attachment upon demand or, if Licensee fails to do so upon reasonable notice,
remove such Attachment at Licensee’s sole Cost and risk.
10.2 No Ratification of Unauthorized Use No act or failure to act by the Town with
respect to an Unauthorized Attachment or any other unauthorized use of the Town Poles or
property shall be considered to be a ratification, licensing or permitting of the unauthorized use,
irrespective of any otherwise applicable doctrine of waiver or laches.
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ARTICLE 11
CUSTOMER INTERACTION
11.1 Purpose Licensee acknowledges that the scope of its proposed project and the
amount of Make-Ready construction and Attachment installation it intends to undertake under
this Agreement may require Licensee to make extensive and repeated intrusions onto the private
property of Town customers in order to access Poles. The purpose of this Article is to establish
minimum standards of conduct with respect to property owners and Town customers.
11.2 Owner Consent Before entering onto private property to access a Pole, Licensee
shall obtain the owner’s consent.
11.3 Licensee Conduct Before engaging in Make-Ready or installation work on the
property of a Town customer, Licensee shall, at minimum:
A. Place hangers or fliers, explaining in general the nature, extent and
purpose of the work to be done and listing Licensee’s telephone numbers and web site where
additional information can be found, on the front door of each customer whose property is to be
entered upon at least 48 hours prior to entry;
B. Require all field crews, and those of its Contractors, to carry and distribute
upon request information packets explaining in detail the nature, extent and purpose of the work
being done and listing the telephone number and web site where additional information can be
found;
C. Establish and maintain a local call-center telephone number during all
hours during which field work is being done that is staffed by knowledgeable personnel who can
answer and resolve customer questions and complaints concerning the work being done on their
premises;
D. Require all field crews to wear ID badges and uniforms identifying
themselves as employees or Contractors of Licensee;
E. Have all vehicles used in field work bear Licensee’s logo;
F. Require all field crews to seek permission of the premises owner before
entering into a backyard; and
G. Have readily available, during all hours in which field work is being done,
one or more knowledgeable personnel who can communicate with and assist the Town
Administrator’s Office and Town Board members regarding property owner complaints, and also
have available qualified personnel to conduct on-site resolution of property owner complaints.
11.4 No Town Affiliation Licensee, and its employees, Contractors and agents shall
not at any time represent themselves to the public, any Town customer or any resident as being
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associated with, having the permission of or having been requested by the Town to be on private
property.
11.5 Electrical Service Interruptions Licensee shall provide written notice to Town
customers of any planned electrical service interruptions that will affect them not less than 48
hours in advance of such interruption. Such notice shall contain the specific dates and times for
such interruptions and the reasons therefor.
ARTICLE 12
TERMINATION
12.1 Termination of Attachment Licenses Attachment Licenses for specific
Attachments shall terminate upon any of the following events or conditions:
A. Licensee has not completed all necessary Make-Ready work and
Attachment installation within 45 days of issuance of the Attachment License, unless Licensee
and the Town agree in writing to a longer period.
B. Licensee removes the Attachment other than in the course of routine
maintenance or replacement.
C. Licensee ceases to offer services, or provides services unlawfully, through
the Attachment.
D. Licensee fails to comply with any applicable provision of this Agreement.
E. Licensee’s Cable Franchise in the Town is terminated.
12.2 Right of Suspension If Licensee fails either to make any payment required under
this Agreement, including timely payments to Contractors for Make-Ready work, or to perform
timely any material obligation under this Agreement, and such default continues for 30 days after
the date the payment or performance is due, then, in addition to any other available right or
remedy, the Town may, upon written notice to Licensee, immediately suspend all Attachment
Licenses of Licensee hereunder until such time as the default is cured. The payment under
protest of a disputed amount in order to avoid, or lift, suspension of Attachment Licenses shall
not prejudice the rights of Licensee to continue the payment dispute. Licensee shall not install
any new or additional Attachments or make any changes to existing Attachments (except for
removal or routine repair or maintenance necessary to continue to provide services to then
existing Licensee customers) during the period of suspension.
12.3 Termination of Agreement by the Town If Licensee fails either to pay any
payment required under this Agreement, including timely payments to Contractors for Make-
Ready Work, or timely perform any material obligation under this Agreement, and if such
default has not been cured within 30 days of Licensee’s receipt of written notice of default, the
Town may terminate this Agreement and all Attachment Licenses upon written notice to
Licensee. Upon receipt of a notice of termination, Licensee shall promptly begin the process of
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removing all Attachments from Poles. All such Attachments shall be removed within 45 days
after the date of the notice of termination, or within such other time as the Town may agree.
Until all of Licensee’s Attachments are removed, Licensee shall continue to comply with all of
the terms of this Agreement and perform all of its duties and obligations hereunder, including
without limitation the obligation to pay Annual Usage Charges for its Attachments. Such
payment by Licensee or acceptance by the Town of Annual Usage Charges shall not act to cure
the default that triggered the termination nor shall it reinstate this Agreement or Licensee’s
Attachment Licenses hereunder.
12.4 Failure to Remove Attachments If Licensee has not removed all its
Attachments within the period of time specified in the preceding paragraph, or such additional
period of time granted by the Town in writing, then the Town may remove Licensee’s
Attachments at Licensee’s sole Cost and risk.
12.5 Termination of Agreement by Licensee Licensee may terminate this
Agreement upon 60 days written notice to the Town, in which event all Attachments shall be
removed within 180 days after the date of the notice of termination or within such other time as
the Town agrees. Until all of Licensee’s Attachments are removed, Licensee shall continue to
comply with all of the terms of this Agreement and perform all of its duties and obligations
hereunder, including without limitation the obligation to pay Annual Usage Charges for its
Attachments. Termination by Licensee during a Contract Year shall not relieve Licensee from
payment for prorated Annual Usage Charges for that Contract Year or any other sums owing the
Town.
ARTICLE 13
ASSIGNMENTS
13.1 Permissible Assignments Licensee may not assign or otherwise transfer this
Agreement or any Attachment Licenses without the Town’s prior written consent, which consent
shall not be unreasonably withheld or delayed, except that Licensee may without consent:
A. transfer or assign this Agreement to an affiliate or subsidiary of Licensee
to whom Licensee has been duly authorized by the Town to transfer or assign Licensee’s Cable
Franchise. Licensee’s rights and obligations hereunder shall pass to such transferee or assignee
only upon receipt by the Town of written notice of such transfer or assignment of the Cable
Franchise; or
B. mortgage any or all of its property, rights or privileges in this Agreement.
13.2 Documents for the Town In the event of a transfer or assignment of this
Agreement, Licensee shall provide the Town with true and complete copies of the transfer or
assignment documents; documents showing the ownership of the assignee and its relationship to
Licensee, if any; a copy of the assignee’s most current audited annual financial statement; a copy
of the assignee’s Cable Franchise with the Town, if any; copies of all insurance policies required
by this Agreement; and such other documents or bonds as the Town may reasonably request.
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13.3 Other Assignments Void A purported assignment or transfer made in violation
of the provisions of this Article 13 shall not be binding upon the Town and shall be deemed to be
a material default of this Agreement.
13.4 Partial Assignments If Licensee sells, conveys or transfers some, but not all, of
Licensee’s Attachments, and such assignment complies with this Article 13, the assignee must
nonetheless obtain a separate agreement from the Town for the assignee’s Attachments in
accordance with Town policies, rules and regulations in effect at that time. Until the assignee
executes a separate agreement, the assignment is not binding upon the Town and the assignee’s
Attachments shall continue to be deemed to be the Attachments of Licensee for all purposes
hereunder, including billing and payment of Annual Usage Charges.
ARTICLE 14
LIABILITY AND INDEMNITY
14.1 Limitation on Liability NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES
ARISING IN CONNECTION WITH THE USE OF OR DAMAGE TO EITHER
PARTY’S FACILITIES.
14.2 No Warranties by the Town Licensee is expected to inspect the Poles on which
its Attachments will be placed and shall rely solely on such inspection to determine the
suitability of the Poles for its purposes. THE TOWN DOES NOT MAKE, AND HEREBY
EXPRESSLY DISCLAIMS, ANY EXPRESS OR IMPLIED WARRANTIES
CONCERNING ANY POLE, INCLUDING WITHOUT LIMITATION THE
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. LICENSEE ACCEPTS THE USE OF ALL POLES AS IS, WHERE IS AND
WITH ALL FAULTS.
14.3 Unsafe Poles Licensee acknowledges and agrees that the Town does not warrant
the condition or safety of the Town’s Poles, or the premises surrounding the Poles, and
LICENSEE HEREBY ASSUMES ALL RISKS OF ANY DAMAGE, INJURY OR LOSS
OF ANY NATURE WHATSOEVER, COSTS AND ATTORNEYS’ FEES, CAUSED BY
OR IN CONNECTION WITH LICENSEE’S OR LICENSEE’S CONTRACTORS’ USE
OF THE POLES AND ASSOCIATED FACILITIES AND EQUIPMENT ON, WITHIN
OR SURROUNDING THE POLES. Licensee expressly agrees that it will undertake
responsibility for inspecting and evaluating the condition of any Pole before allowing any
workers, whether those of Licensee or Licensee’s Contractors, to climb or otherwise work on
such Pole. If Licensee discovers any Poles that are rotten or otherwise unsafe for climbing or
Attachment installation, Licensee shall immediately report such unsafe condition to the Town.
Licensee further acknowledges that the Town does not warrant that all Poles are properly
labeled, and agrees that the Town is not liable for any injuries or damages caused by or in
connection with missing labels or otherwise improperly labeled Pole. Licensee further agrees to
immediately notify the Town if labels or tags are missing or otherwise improper.
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14.4 Dangerous Nature of the Work Licensee acknowledges that in performing the
work contemplated by this Agreement, Licensee and its agents, employees and Contractors will
work near electrically energized lines, transformers and other electrical equipment, and it is the
intention that the power flowing through such facilities will not be interrupted except by the
Town. Licensee shall ensure that its employees, agents and Contractors have the necessary
qualifications, skill, knowledge, training and experience to protect themselves, their fellow
employees, employees of the Town and the general public from harm or injury while performing
work permitted by this Agreement. In addition, Licensee shall furnish its employees, and shall
require its agents and Contractors to furnish their employees, with competent supervision and
sufficient and adequate tools and equipment for their work to be performed in a safe manner.
Licensee further warrants that it is apprised of, conscious of and understands the imminent
dangers (INCLUDING SERIOUS BODILY INJURY OR DEATH FROM
ELECTROCUTION) inherent in the work necessary to make installations on the Town’s Poles
by Licensee’s employees, agents and Contractors, and accepts it as its duty and sole
responsibility to notify and inform Licensee’s employees, and to require its agents and
Contractors to inform their employees of such dangers, and to keep them informed regarding
same.
14.5 Indemnification of Town Licensee shall defend, indemnify and hold harmless
the Town, and its Town Board, officials, officers, departments, agencies, representatives,
employees, agents and Contractors against any and all liability, claims, costs, damages, fines,
taxes, special charges by others, penalties, expenses, demands, injury to or death of any persons,
lawsuits or disputes (including attorneys’ fees and all other costs and expenses of litigation)
arising from or related to Licensee’s Attachments, all acts, omissions or negligence of Licensee
or Licensee’s agents, Contractors or employees under this Agreement.
14.6 Governmental Immunity No provision of this Agreement is intended, or shall
be construed, to be a waiver for any purpose by the Town of any immunity or law limiting
municipal liability.
ARTICLE 15
INSURANCE
15.1 Insurance Requirements
A. General Requirement. The Licensee shall at its own expense purchase
and maintain the minimum insurance required herein with companies duly franchised or licensed
to do business in the State of Colorado. Said insurance shall possess a current A.M. Best, Inc.
rating of A-VI or better.
Said insurance shall be maintained in full force and effect until all work required to be performed
under the terms of this Agreement is satisfactorily completed.
Licensee solely shall be responsible for deductibles and/or self-insured retention.
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B. Minimum Insurance Limits. Licensee must maintain during the
Agreement term insurance in effect in accordance with the minimum insurance limits herein set
forth by the Town. The Licensee shall provide a certificate of insurance for the following
Minimum insurance limits:
1. Commercial General Liability: One Million Dollars with Two
Million Dollars ($2,000,000) aggregate limit per occurrence for bodily injury, personal injury
and property damage and Two million dollars ($2,000,000) products and completed operations;
2. Automobile Liability: One million dollars ($1,000,000) combined
single limit per accident for bodily injury and property damage; and
3. Employer’s Liability: One hundred thousand dollars ($100,000).
4. Workers Compensation Insurance in accordance with State law
requirements.
5. Umbrella Liability Insurance: Three million dollars ($3,000,000).
6. Licensee shall be responsible for judgments, settlements, damages,
costs, attorneys’ fees and expenses that exceed limits of Licensee’s insurance coverage.
Endorsements. All policies shall contain, or shall be endorsed so that the Town shall be
designated as an additional insured except under the Employer’s Liability and Worker’s
Compensation. The insurance shall provide that the insurance shall not be cancelled or
materially altered so as to be out of compliance with the requirements of this Section without
thirty (30) days written notice first being given to the Town.
ARTICLE 16
MISCELLANEOUS PROVISIONS
16.1 Entire Agreement This Agreement constitutes the entire understanding of the
parties relating to the use of Utility Poles hereunder, and there shall be no modification hereof
except in writing, signed by the parties. All previous agreements, correspondence, statements
and negotiations concerning the subject matter hereof are superseded by this Agreement.
16.2 No Waiver The failure of either party to enforce or insist upon compliance with
any of the terms or conditions of this Agreement shall not constitute a general waiver or
relinquishment of any such terms or conditions, but the same shall be and remain at all times in
full force and effect.
16.3 Applicable Law The parties hereto agree and intend that all disputes that may
arise from, out of, under or respecting the terms and conditions of this Agreement, or concerning
the rights or obligations of the parties hereunder, or respecting any performance or failure of
performance by either party hereunder, shall be governed by the laws of the State of Colorado
23
and applicable federal laws. The parties further agree and intend that venue shall be proper and
shall be exclusively in Larimer County, Colorado.
16.4 Severability If any provision, covenant or condition of this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions, covenants and conditions of this Agreement shall remain in full force and effect. But
in such event, if either party believes in good faith that the balance of mutual benefit and
obligations under the Agreement has been thereby materially impaired, such party may, upon
written notice to the other party, initiate a renegotiation of the Agreement to redress such
imbalance. If the parties are unable to agree upon a renegotiated Agreement within thirty days,
then either party may terminate the Agreement, effective six months after giving written notice
to the other party, in which event all Attachments shall be removed within 180 days after the date
of the notice of termination or within such other time as the Town agrees.
16.5 Payments and Interest All payments under this Agreement shall be due within
forty-five (45) days after receipt of an invoice. All unpaid balances shall accrue interest at the
rate of 1% per month from the due date until paid, or the maximum rate allowed by law,
whichever is greater.
16.6 Notices When notice is required to be given under this Agreement by either
party, it shall be in writing, mailed or delivered to the other party at the following address or to
such other address as either party may from time to time designate in writing for that purpose.
All notices shall be effective upon receipt.
Town of Estes Park Baja Broadband Operating Company, LLC
170 MacGregor Avenue 1061-521 Corporate Center Drive, Suite 100
P.O. Box 1200 Ft. Mill, SC 29707-7150
Estes Park, CO 80517 Attn: VP Regulatory Affairs
Attn: Town Administrator
16.7 Headings The descriptive headings in this Agreement are only for the
convenience of the parties and shall not be deemed to affect the meaning or construction of any
provision.
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IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
ATTEST: TOWN OF ESTES PARK
By:
Town Clerk William C. Pinkham, Mayor
ATTEST: BAJA BROADBAND OPERATING
COMPANY, LLC
By: ___________
Name:
Title:
Page 1
Town Attorney Memo
To: Honorable Mayor Pinkham
Board of Trustees
From: Gregory A. White, Town Attorney
Date: December 6, 2012
RE: Ordinance No. 01-13 and Resolution No.19-12
Public Service Company Natural Gas Franchise Agreement
Background:
Public Service Company of Colorado is the current franchisee of the Town for operation
and distribution of natural gas within and through the Town. The current Franchise
Agreement was approved by Ordinance No. 11-92 in November of 1992. The term of
the franchise is for twenty years and expires on December 26, 2012. Article 32 of Title
31 of the Colorado Revised Statutes requires that any entity seeking this type of
franchise file and publish a Notice of Application with the Town. Public Service
Company of Colorado has filed its Notice of Application for a new franchise with the
Town and published the Notice for a public hearing to begin the process before the
Town Board on December 11, 2012. The statutory provisions require that this franchise
be approved by ordinance and that the ordinance be read at a regular meeting of the
Town Board and then considered, and if appropriate, adopted at a subsequent meeting
of the Town Board. Ordinance No. 01-13 is before the Town Board for its consideration
of granting a new natural gas franchise to Public Service Company of Colorado.
Attached to Ordinance No. 01-13 as Exhibit A is the proposed Franchise Agreement
between the Town and Public Service Company.
It is Staff’s recommendation that Ordinance No. 01-13 be read at the December 11,
2012 meeting, as required by the statute, and the hearing on Ordinance No. 01-13 be
continued until January 22, 2013. Between December 11, 2012 and January 22, 2013,
Staff will have an opportunity to review the proposed Franchise Agreement, discuss any
necessary changes to the Agreement with Public Service Company, and formulate
recommendations to the Town Board concerning this proposed Franchise Agreement.
Please note that this procedure for reviewing and, if appropriate, adopting a new
Franchise Agreement for natural gas with Public Service Company is different than the
procedure for approving the Cable Television Permit. The Agreement for the cable
television system within the Town does not require this type of procedure pursuant to
the statutory requirements.
Resolution No. 19-12 extends the current Franchise Agreement between the Town and
Public Service from December 26, 2012 through and including March 1, 2013. This will
allow the review process for the proposed new Franchise Agreement to occur with
adoption of Ordinance No.01-13 on January 22, 2013. If Ordinance No. 01-13 is
adopted on January 22, 2012, the Ordinance will not be effective until thirty days after
its adoption and publication.
Budget:
Revenue from a new Franchise Agreement will be substantially the same as the current
Franchise Agreement.
Staff Recommendation:
Staff recommends the continuation of the review of Ordinance No.01-13 to January 22,
2013 and the adoption of Resolution No. 19-12.
Sample Motion:
There should be separate motions for Ordinance No. 01-13 and Resolution No. 19-12.
I move to table Ordinance No. 01-13 until January 22, 2013.
I move to approve/deny Resolution No.19-12.
ORDINANCE NO. 01-13
AN ORDINANCE OF THE TOWN OF ESTES PARK, LARIMER COUNTY,
COLORADO, GRANTING BY FRANCHISE TO PUBLIC SERVICE COMPANY OF
COLORADO, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT TO USE
THE STREETS WITHIN THE TOWN TO FURNISH, SELL, TRANSMIT AND
DISTRIBUTE NATURAL GAS TO THE TOWN AND TO ALL RESIDENTS OF THE
TOWN, GRANTING THE RIGHT TO ACQUIRE, CONSTRUCT, INSTALL, LOCATE,
MAINTAIN, OPERATE AND EXTEND INTO, WITHIN AND THROUGH THE TOWN
ALL FACILITIES REASONABLY NECESSARY TO FURNISH, SELL, TRANSMIT
AND DISTRIBUTE NATURAL GAS WITHIN AND THROUGH THE TOWN.
WHEREAS, on December 11, 2012, Public Service Company of Colorado filed with the
Board of Trustees of the Town of Estes Park its Notice of Application for Franchise; and
WHEREAS, accompanying said Notice of Application was an Affidavit of Publication
indicating that the provisions of Section 31-32-102 C.R.S. had been met; and
WHEREAS, this Ordinance was introduced and read at length on December 11, 2012,
and January 22, 2013, at the regular meetings of the Board of Trustees of the Town of Estes
Park; and
WHEREAS, following the reading in full of this Ordinance, this Ordinance was published
as required by the provisions of Section 31-32-103 C.R.S.; and
WHEREAS, at the regular meeting of the Board of Trustees of the Town of Estes Park
on January 22, 2013, this Ordinance was read in full; and
WHEREAS, the Board of Trustees of the Town of Estes Park has determined that it is in
its best interests of the Town and the citizens of the Town of Estes Park for the adoption of this
Ordinance.
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
Section 1. The Town of Estes Park, pursuant to the applicable provisions of
Article 32 of Title 31, C.R.S., hereby grants a franchise to the Public Service Company
of Colorado, its successors and assigns, for the right to use the streets within the Town
to furnish, sell, transmit and distribute natural gas to the Town and to all residents of the
Town, granting the right to acquire, construct, install, locate, maintain, operate and
extend into, within and through the Town all facilities reasonably necessary to furnish,
sell, transmit and distribute natural gas within and through the Town.
Section 2. This Ordinance shall take effect and be in force thirty (30) days
after its adoption and publication.
INTRODUCED, READ, AND PASSED BY THE BOARD OF TRUSTEES OF THE
TOWN OF ESTES PARK on this _______ day of ______________, 2013.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
FRANCHISE AGREEMENT BETWEEN THE TOWN OF ESTES PARK, COLORADO
AND PUBLIC SERVICE COMPANY OF COLORADO
ARTICLE 1 DEFINITIONS
ARTICLE 2 GRANT OF FRANCHISE
ARTICLE 3 TOWN POLICE POWERS
ARTICLE 4 FRANCHISE FEE
ARTICLE 5 ADMINISTRATION OF FRANCHISE
ARTICLE 6 SUPPLY, CONSTRUCTION, AND DESIGN
ARTICLE 7 RELIABILITY
ARTICLE 8 COMPANY PERFORMANCE OBLIGATIONS
ARTICLE 9 BILLING AND PAYMENT
ARTICLE 10 PURCHASE OR CONDEMNATION
ARTICLE 11 TRANSFER OF FRANCHISE
ARTICLE 12 CONTINUATION OF UTILITY SERVICE
ARTICLE 13 INDEMNIFICATION AND IMMUNITY
ARTICLE 14 BREACH
ARTICLE 15 AMENDMENTS
ARTICLE 16 EQUAL OPPORTUNITY
ARTICLE 17 MISCELLANEOUS
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ........................................................................................... 1
§1.1 “Town” .......................................................................................................... 1
§1.2 “Company Facilities” .................................................................................... 1
§1.3 “Council” or “Town Council” ......................................................................... 1
§1.4 “Force Majeure” ........................................................................................... 1
§1.5 “Gross Revenues” ........................................................................................ 1
§1.6 “Other Town Property” ................................................................................. 2
§1.7 “Private Project” ........................................................................................... 2
§1.8 “Public Project” ............................................................................................ 2
§1.9 “Public Utilities Commission” ....................................................................... 2
§1.10 “Public Utility Easement” .............................................................................. 2
§1.11 “Relocate,” “Relocation,” or “Relocated” ...................................................... 2
§1.12 “Residents” .................................................................................................. 2
§1.13 “Streets” or “Town Streets” .......................................................................... 2
§1.14 “Supporting Documentation” ........................................................................ 2
§1.15 “Tariffs” ........................................................................................................ 3
§1.16 “Utility Service” ............................................................................................. 3
ARTICLE 2 GRANT OF FRANCHISE .......................................................................... 3
§2.1 Grant of Franchise. ...................................................................................... 3
§2.2 Conditions and Limitations. .......................................................................... 3
§2.3 Effective Date and Term. ............................................................................. 4
ARTICLE 3 TOWN POLICE POWERS ........................................................................ 4
§3.1 Police Powers .............................................................................................. 4
§3.2 Regulation of Streets or Other Town Property ............................................. 4
§3.3 Compliance with Laws ................................................................................. 4
ARTICLE 4 FRANCHISE FEE ..................................................................................... 4
§4.1 Franchise Fee. ............................................................................................. 4
§4.2 Remittance of Franchise Fee. ...................................................................... 5
§4.3 Franchise Fee Payment not in Lieu of Permit or Other Fees ....................... 7
ARTICLE 5 ADMINISTRATION OF FRANCHISE ........................................................ 7
§5.1 Town Designee ............................................................................................ 7
§5.2 Company Designee ..................................................................................... 7
§5.3 Coordination of Work. .................................................................................. 7
ARTICLE 6 SUPPLY, CONSTRUCTION, AND DESIGN ............................................. 8
§6.1 Purpose ....................................................................................................... 8
§6.2 Supply .......................................................................................................... 8
§6.3 Charges to the Town for Service to Town Facilities. .................................... 8
§6.4 Restoration of Service. ................................................................................. 8
§6.5 Obligations Regarding Company Facilities. ................................................. 8
§6.6 Excavation and Construction ..................................................................... 10
§6.7 Restoration ................................................................................................ 10
§6.8 Relocation of Company Facilities. .............................................................. 11
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§6.9 New or Modified Service Requested by Town ........................................... 13
§6.10 Service to New Areas ................................................................................ 13
§6.11 Town Not Required to Advance Funds If Permitted by Tariffs ................... 13
§6.12 Technological Improvements ..................................................................... 13
ARTICLE 7 RELIABILITY .......................................................................................... 13
§7.1 Reliability ................................................................................................... 13
§7.2 Franchise Performance Obligations ........................................................... 13
§7.3 Reliability Reports ...................................................................................... 13
ARTICLE 8 COMPANY PERFORMANCE OBLIGATIONS ........................................ 14
§8.1 New or Modified Service to Town Facilities ............................................... 14
§8.2 Adjustments To Company Facilities ........................................................... 14
§8.3 Third Party Damage Recovery. .................................................................. 15
ARTICLE 9 BILLING AND PAYMENT ....................................................................... 15
§9.1 Billing for Utility Services. ........................................................................... 15
§9.2 Payment To Town ...................................................................................... 16
ARTICLE 10 PURCHASE OR CONDEMNATION ..................................................... 16
§10.1 Municipal Right to Purchase or Condemn. ................................................. 16
ARTICLE 11 TRANSFER OF FRANCHISE ............................................................... 17
§11.1 Consent of Town Required ........................................................................ 17
§11.2 Transfer Fee .............................................................................................. 17
ARTICLE 12 CONTINUATION OF UTILITY SERVICE .............................................. 17
§12.1 Continuation of Utility Service .................................................................... 17
ARTICLE 13 INDEMNIFICATION AND IMMUNITY ................................................... 18
§13.1 Town Held Harmless .................................................................................. 18
§13.2 Immunity .................................................................................................... 18
ARTICLE 14 BREACH ............................................................................................... 18
§14.1 Non-Contestability ..................................................................................... 18
§14.2 Breach. ...................................................................................................... 18
ARTICLE 15 AMENDMENTS .................................................................................... 20
§15.1 Proposed Amendments ............................................................................. 20
§15.2 Effective Amendments ............................................................................... 20
ARTICLE 16 EQUAL OPPORTUNITY ....................................................................... 20
§16.1 Economic Development ............................................................................. 20
§16.2 Employment. .............................................................................................. 20
§16.3 Contracting. ............................................................................................... 21
§16.4 Coordination .............................................................................................. 22
ARTICLE 17 MISCELLANEOUS ............................................................................... 22
§17.1 No Waiver .................................................................................................. 22
§17.2 Successors and Assigns ............................................................................ 22
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§17.3 Third Parties .............................................................................................. 22
§17.4 Notice ......................................................................................................... 22
§17.5 Examination Of Records ............................................................................ 23
§17.6 List of Utility Property ................................................................................. 23
§17.7 PUC Filings ................................................................................................ 23
§17.8 Information ................................................................................................. 24
§17.9 Payment of Taxes and Fees. ..................................................................... 24
§17.10 Conflict of Interest ...................................................................................... 24
§17.11 Certificate of Public Convenience and Necessity ....................................... 24
§17.12 Authority ..................................................................................................... 25
§17.13 Severability ................................................................................................ 25
§17.14 Force Majeure ............................................................................................ 25
§17.15 Earlier Franchises Superseded .................................................................. 25
§17.16 Titles Not Controlling.................................................................................. 25
§17.17 Applicable Law ........................................................................................... 25
§17.18 Payment Of Expenses Incurred By Town In Relation To Franchise
Agreement .............................................................................................................. 25
§17.19 Incremental Costs ...................................................................................... 25
§17.20 Conveyance of Town Streets, Public Easements or Other Town Property 25
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ARTICLE 1
DEFINITIONS
For the purpose of this franchise agreement (“Franchise”), the following words
and phrases shall have the meaning given in this Article. When not inconsistent with
context, words used in the present tense include the future tense, words in the plural
include the singular, and words in the singular include the plural. The word “shall” is
mandatory and “may” is permissive. Words not defined in this Article shall be given
their common and ordinary meaning.
§1.1 “Town” refers to the Town of Estes Park, a municipal corporation of the State of
Colorado.
§1.2 “Company” refers to Public Service Company of Colorado, a Colorado
corporation and an Xcel Energy company and its successors and assigns
including affiliates or subsidiaries that undertake to perform any of the obligations
under this Franchise.
§1.2 “Company Facilities” refer to all facilities of the Company reasonably necessary
or desirable to provide gas service into, within and through the Town, including
but not limited to plants, works, systems, transmission and distribution structures,
lines, equipment, pipes, mains, conduit, underground lines, gas compressors,
meters, meter reading devices, communication and data transfer equipment,
control equipment, gas regulator stations and all appurtenances thereto.
§1.3 “Council” or “Town Council”refers to and is the legislative body of the Town.
§1.4 “Force Majeure” means the inability to undertake an obligation of this Franchise
due to a cause that could not be reasonably anticipated by a party or is beyond
its reasonable control after exercise of best efforts to perform, including but not
limited to fire, strike, war, riots, terrorist acts, acts of governmental authority, acts
of God, floods, epidemics, quarantines, labor disputes, unavailability or shortages
of materials or equipment or failures or delays in the delivery of materials.
Neither the Town nor the Company shall be in breach of this Franchise if a failure
to perform any of the duties under this Franchise is due to a Force Majeure
condition.
§1.5 “Gross Revenues” refers to those amounts of money that the Company receives
from the sale of gas within the Town under rates authorized by the Public
Utilities Commission, as well as from the transportation of gas to its customers
within the Town and those amounts of money, excluding expense
reimbursements, which the Company receives from the use of Company facilities
in Streets and Other Public Places (unless otherwise preempted by applicable
federal or state law), as adjusted for refunds, net write-offs of uncollectible
accounts, corrections, or regulatory adjustments. Regulatory adjustments
include, but are not limited to, credits, surcharges, refunds, and pro-forma
2
adjustments pursuant to federal or state regulation. “Gross Revenues” shall
exclude any revenues from the sale or transportation of gas to the Town.
§1.6 “Other Town Property” refers to the surface, the air space above the surface and
the area below the surface of any property owned by the Town or directly
controlled by the Town due to the Town’s real property interest in the same or
hereafter owned by the Town, that would not otherwise fall under the definition of
“Streets,” but which provides a suitable location for the placement of Company
Facilities as specifically approved in writing by the Town. Other Town Property
does not include Public Utility Easements.
§1.7 “Private Project” refers to any project which is not covered by the definition of
Public Project.
§1.8 “Public Project” refers to (1) any public work or improvement within the Town that
is wholly or beneficially owned by the Town; or (2) any public work or
improvement within the Town where fifty percent (50%) or more of the funding is
provided by any combination of the Town, the federal government, the State of
Colorado, any Colorado county, but excluding all entities established under Title
32 of the Colorado Revised Statutes.
§1.9 “Public Utilities Commission” or “PUC” refers to the Public Utilities Commission of
the State of Colorado or other state agency succeeding to the regulatory powers
of the Public Utilities Commission.
§1.10 “Public Utility Easement” refers to any platted easement over, under, or above
public or private property, expressly dedicated to, and accepted by, the Town for
the use of public utility companies for the placement of utility facilities, including
but not limited to Company Facilities.
§1.11 “Relocate,” “Relocation,” or “Relocated”refers to the definition assigned such
terms in Section 6.8.A of this Franchise.
§1.12 “Residents” refers to all persons, businesses, industries, governmental agencies,
including the Town, and any other entity whatsoever, presently located or to be
hereinafter located, in whole or in part, within the territorial boundaries of the
Town.
§1.13 “Streets” or “Town Streets” refers to the surface, the air space above the surface
and the area below the surface of any Town-dedicated or Town-maintained
streets, alleys, bridges, roads, lanes, access easements, and other public rights-
of-way within the Town, which are primarily used for vehicle traffic. Streets shall
not include Public Utility Easements and Other Town Property.
§1.14 “Supporting Documentation” refers to all information reasonably required or
needed in order to allow the Company to design and construct any work
performed under the provisions of this Franchise. Supporting Documentation
may include, but is not limited to, construction plans, a description of known
3
environmental issues, the identification of critical right of way or easement
issues, the final recorded plat for the property, the date the site will be ready for
the Company to begin construction, the date gas service and meter set are
needed, and the name and contact information for the Town’s project manager.
§1.15 “Tariffs” refer to those tariffs of the Company on file and in effect with the PUC or
other governing jurisdiction, as amended from time-to-time.
§1.16 “Utility Service” refers to the sale of gas to Town Residents by the Company
under rates and Tariffs approved by the PUC, as well as the delivery of gas to
Residents by the Company.
ARTICLE 2
GRANT OF FRANCHISE
§2.1 Grant of Franchise.
A. Grant. The Town hereby grants to the Company, subject to all
conditions, limitations, terms, and provisions contained in this Franchise, the non-
exclusive right to make reasonable use of Town Streets, Public Utility Easements
(as applicable) and Other Town Property:
(1) to provide Utility Service to the Town and to its Residents
under the Tariffs; and
(2) to acquire, purchase, construct, install, locate, maintain,
operate, upgrade and extend into, within and through the Town all
Company Facilities reasonably necessary for the production,
manufacture, sale, storage, purchase, exchange, transportation
and distribution of Utility Service within and through the Town.
§2.2 Conditions and Limitations.
A. Scope of Franchise. The grant of the franchise shall extend to all
areas of the Town as it is now or hereafter constituted that are within the
Company’s PUC-certificated service territory; however, nothing contained in this
Franchise shall be construed to authorize the Company to engage in activities
other than the provision of Utility Service.
B. Subject to Town Usage. The right to make reasonable use of Town
Streets to provide Utility Service to the Town and its Residents under the
Franchise is subject to and subordinate to any Town usage of said Streets.
C. Prior Grants Not Revoked. This grant and Franchise is not
intended to revoke any prior license, grant, or right to use the Streets, Other
Town Property or Public Utility Easements and such licenses, grants or rights of
use are hereby affirmed.
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D. Franchise Not Exclusive. The rights granted by this Franchise are
not, and shall not be deemed to be, granted exclusively to the Company, and the
Town reserves the right to make or grant a franchise to any other person, firm, or
corporation.
§2.3 Effective Date and Term.
A. Term. This Franchise shall take effect on ______ __, 2012, and
shall supersede any prior franchise grants to the Company by the Town. This
Franchise shall terminate on _______, 2032, unless extended by mutual
consent.
ARTICLE 3
TOWN POLICE POWERS
§3.1 Police Powers. The Company expressly acknowledges the Town’s right to
adopt, from time to time, in addition to the provisions contained herein, such
laws, including ordinances and regulations, as it may deem necessary in the
exercise of its governmental powers. If the Town considers making any
substantive changes in its local codes or regulations that in the Town’s
reasonable opinion will significantly impact the Company’s operations in the
Town’s Streets, Public Utility Easements and Other Town Property, it will make a
good faith effort to advise the Company of such consideration; provided,
however, that lack of notice shall not be justification for the Company’s non-
compliance with any applicable local requirements.
§3.2 Regulation of Streets or Other Town Property. The Company expressly
acknowledges the Town’s right to enforce regulations concerning the Company’s
access to or use of the Streets, including requirements for permits.
§3.3 Compliance with Laws. The Company shall promptly and fully comply with all
laws, regulations, permits and orders lawfully enacted by the Town.
ARTICLE 4
FRANCHISE FEE
§4.1 Franchise Fee.
A. Franchise Fee. In partial consideration for the franchise, which
provides the certain terms related to the Company’s use of Town Streets, Public
Utility Easements and Other Town Property, which are valuable public properties
acquired and maintained by the Town at great expense to its Residents, and in
recognition of the fact that the grant to the Company of the franchise is a
valuable right, the Company shall pay the Town a sum equal to three percent
(3%) of all Gross Revenues. To the extent required by law, the Company shall
collect this fee from a surcharge upon Town residents who are customers of the
Company.
5
B. Obligation in Lieu of Fee. In the event that the franchise fee
specified herein is declared void for any reason by a court of competent
jurisdiction, unless prohibited by law, the Company shall be obligated to pay the
Town, at the same times and in the same manner as provided in the Franchise,
an aggregate amount equal to the amount that the Company would have paid as
a franchise fee as partial consideration for use of the Town Streets, Public Utility
Easements and other Town Property. Such payment shall be made in
accordance with the applicable provisions of law. Further, to the extent required
by law, the Company shall collect the amounts agreed upon through a surcharge
upon Utility Service provided to Town Residents who are customers of the
Company.
C. Changes in Utility Service Industries. The Town and the Company
recognize that utility service industries are the subject of restructuring initiatives
by legislative and regulatory authorities, and are also experiencing other changes
as a result of mergers, acquisitions, and reorganizations. Some of such
initiatives and changes have or may have an adverse impact upon the franchise
fee revenues provided for herein. In recognition of the length of the term of this
Franchise, the Company agrees that in the event of any such initiatives or
changes and to the extent permitted by law, upon receiving a written request
from the Town, the Company will cooperate with and assist the Town in
modifying this Franchise in an effort to provide that the Town receives an amount
in franchise fees or some other form of compensation that is the same amount of
franchise fees paid to the Town as of the date that such initiatives and changes
adversely impact franchise fee revenues.
D. Utility Service Provided to the Town. No franchise fee shall be
charged to the Town for Utility Service provided directly or indirectly to the Town
for its own consumption, including street lighting service and traffic signal lighting
service, unless otherwise directed by the Town.
§4.2 Remittance of Franchise Fee.
A. Remittance Schedule. Franchise fee revenues shall be remitted by
the Company to the Town as directed by the Town in monthly installments not
more than 30 days following the close of each month.
B. Correction of Franchise Fee Payments. In the event that either the
Town or the Company discovers that there has been an error in the calculation of
the franchise fee payment to the Town, either party shall provide written notice of
the error to the other party. Subject to the following sentence, if the party
receiving written notice of the error does not agree with the written notice of error,
that party may challenge the written notice of error pursuant to Section 4.2.D of
this Franchise; otherwise, the error shall be corrected in the next monthly
payment. However, if the error results in an overpayment of the franchise fee to
the Town, and said overpayment is in excess of Five Thousand Dollars
($5,000.00), at the Company’s election, credit for the overpayment shall be
6
spread over the same period the error was undiscovered or the Town shall make
a refund payment to the Company. All franchise fee underpayments shall be
corrected in the next monthly payment, together with interest computed at the
rate set by the PUC for customer security deposits held by the Company, from
the date when due until the date paid. Subject to the terms of the Tariff, in no
event shall either party be required to fund or refund any overpayment or
underpayment made as a result of a Company error which occurred more than
five (5) years prior to the discovery of the error.
C. Audit of Franchise Fee Payments.
(1) Every three (3) years commencing at the end of the third
year of this Franchise, the Company shall conduct an internal audit
to investigate and determine the correctness of the franchise fee
paid to the Town. Such audit shall be limited to the previous three
(3) calendar years. The Company shall provide a written report to
the Town Clerk containing the audit findings.
(2) If the Town disagrees with the results of the audit, and if the
parties are not able to informally resolve their differences, the Town
may conduct its own audit at its own expense, and the Company
shall cooperate, including but not necessarily limited to, providing
the Town’s auditor with all information reasonably necessary to
complete the audit.
(3) If the results of a Town audit conducted pursuant to
subsection C (2) concludes that the Company has underpaid the
Town by five percent (5%) or more, in addition to the obligation to
pay such amounts to the Town, the Company shall also pay all
reasonable costs of the Town’s audit.
D. Fee Disputes. Either party may challenge any written notification of
error as provided for in Section 4.2.B of this Franchise by filing a written notice to
the other party within thirty (30) days of receipt of the written notification of error.
The written notice shall contain a summary of the facts and reasons for the
party’s notice. The parties shall make good faith efforts to resolve any such
notice of error before initiating any formal legal proceedings for the resolution of
such error.
E. Reports. Upon written request by the Town, but not more than
once per year, the Company shall supply the Town with reports, in such formats
and providing such details as reasonably requested by the Town, of all suppliers
of utility service that utilize Company Facilities to sell or distribute utility service to
Residents and the names and addresses of each such supplier, provided the
Company shall not be required to disclose any confidential or proprietary
information.
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§4.3 Franchise Fee Payment not in Lieu of Permit or Other Fees. Payment of the
franchise fee does not exempt the Company from any other lawful tax or fee
imposed generally upon persons doing business within the Town, including any
fee for a street closure permit, an excavation permit, a street cut permit, or other
lawful permits hereafter required by the Town, except that the franchise fee
provided for herein shall be in lieu of any occupation, occupancy or similar tax or
fee for the use of Town Streets, Public Utilities Easements and Other Town
Property.
ARTICLE 5
ADMINISTRATION OF FRANCHISE
§5.1 Town Designee. The Town Clerk shall designate in writing to the Company an
official having full power and authority to administer this Franchise. The Town
Clerk may also designate one or more Town representatives to act as the
primary liaison with the Company as to particular matters addressed by this
Franchise and shall provide the Company with the name and telephone numbers
of said Town representatives. The Town Clerk may change these designations
by providing written notice to the Company. The Town’s designee shall have the
right, at all reasonable times, to inspect any Company Facilities in Town Streets
and Other Town Property.
§5.2 Company Designee. The Company shall designate a representative to act as
the primary liaison with the Town and shall provide the Town with the name,
address, and telephone number for the Company’s representative under this
Franchise. The Company may change its designation by providing written notice
to the Town. The Town shall use this liaison to communicate with the Company
regarding Utility Service and related service needs for Town facilities.
§5.3 Coordination of Work. The Company agrees to coordinate its activities in Town
Streets, Public Utility Easements and Other Town Property with the Town. The
Town and the Company will meet annually upon the written request of the Town
designee to exchange their respective short-term and long-term forecasts and/or
work plans for construction and other similar work which may affect Town
Streets, including but not limited to any planned Town Streets paving project.
The Town and Company shall hold such meetings as either deems necessary to
exchange additional information with a view toward coordinating their respective
activities in those areas where such coordination may prove beneficial and so
that the Town will be assured that all applicable provisions of this Franchise,
applicable building and zoning codes, and applicable Town air and water
pollution regulations are complied with, and that aesthetic and other relevant
planning principles have been given due consideration.
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ARTICLE 6
SUPPLY, CONSTRUCTION, AND DESIGN
§6.1 Purpose. The Company acknowledges the critical nature of the municipal
services performed or provided by the Town to the Residents that require the
Company to provide prompt and reliable Utility Service and the performance of
related services for Town facilities. The Town and the Company wish to provide
for certain terms and conditions under which the Company will provide Utility
Service and perform related services for the Town in order to facilitate and
enhance the operation of Town facilities. They also wish to provide for other
processes and procedures related to the provision of Utility Service to the Town.
§6.2 Supply. Subject to the jurisdiction of the PUC, the Company shall take all
reasonable and necessary steps to provide a sufficient supply of gas to
Residents at the lowest reasonable cost consistent with reliable supplies.
§6.3 Charges to the Town for Service to Town Facilities. No charges to the Town by
the Company for Utility Service (other than gas transportation which shall be
subject to negotiated contracts) shall exceed the lowest charge for similar service
or supplies provided by the Company to any other similarly situated customer of
the Company. The parties acknowledge the jurisdiction of the PUC over the
Company’s regulated intrastate electric and gas rates.
§6.4 Restoration of Service.
A. Notification. The Company shall provide to the Town daytime and
nighttime telephone numbers of a designated Company representative from
whom the Town designee may obtain status information from the Company on a
twenty-four (24) hour basis concerning interruptions of Utility Service in any part
of the Town.
B. Restoration. In the event the Company's gas system within the
Town, or any part thereof, is partially or wholly destroyed or incapacitated, the
Company shall use due diligence to restore such system to satisfactory service
within the shortest practicable time, or provide a reasonable alternative to such
system if the Company elects not to restore such system.
§6.5 Obligations Regarding Company Facilities.
A. Company Facilities. All Company Facilities within Town Streets
and Other Town Property shall be maintained in good repair and condition.
B. Company Work within the Town. All work within Town Streets and
Other Town Property performed or caused to be performed by the Company
shall be done:
(1) in a high-quality manner that is in accordance with generally
accepted utility practice;
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(2) in a timely and expeditious manner;
(3) in a manner that reasonably minimizes inconvenience to the
public;
(4) in a cost-effective manner, which may include the use of
qualified contractors;
(5) in accordance with all applicable laws, ordinances,
regulations and the Tariff; and
(6) in accordance with all lawfully required Town permits.
C. No Interference with Town Facilities. Company Facilities shall not
unreasonably interfere with any Town facilities, including water facilities, sanitary
or storm sewer facilities, communications facilities, or other Town uses of the
Streets, Public Utility Easements or Other Town Property. Company Facilities
shall be installed and maintained in Town Streets, Public Utility Easements and
Other Town Property so as to reasonably minimize interference with other
property, trees, and other improvements and natural features in and adjoining the
Streets, Public Utility Easements and Other Town Property in light of the
Company’s obligation under Colorado law to provide safe and reliable utility
facilities and services.
D. Permit and Inspection. The installation, renovation, and
replacement of any Company Facilities in the Town Streets or Other Town
Property by or on behalf of the Company shall be subject to permit, inspection
and approval by the Town in accordance with applicable laws. Such permitting,
inspection and approval may include, but shall not be limited to, the following
matters: location of Company Facilities, cutting and pruning of trees and shrubs;
provided, however, Company shall have the right to cut, prune, and/or remove
vegetation in accordance with its standard vegetation management requirements
and procedures, and disturbance of pavement, sidewalks and surfaces of Town
Streets or Other Town Property. The Company agrees to cooperate with the
Town in conducting inspections and shall promptly perform any remedial action
lawfully required by the Town pursuant to any such inspection.
E. Compliance. The Company and all of its contractors shall comply
with the requirements of all municipal laws, ordinances, regulations, permits, and
standards lawfully adopted, including but not limited to requirements of all
building and zoning codes, and requirements regarding curb and pavement cuts,
excavating, digging, and other construction activities. The Company shall use
commercially reasonable efforts to require that its contractors working in Town
Streets, Public Utility Easements or Other Town Property hold the necessary
licenses and permits required by law.
F. As-Built Drawings. The Company shall provide as-built drawings of
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any Company Facility installed within the Town Streets or contiguous to the Town
Streets. The Company shall provide the as-built drawings as soon as reasonably
possible, but no sooner than 14 days after project completion and no later than
60 days after project completion. As used in this Section, as-built drawings
refers to the facility drawings as maintained in the Company’s geographical
information system or any equivalent Company system. The Company shall not
be required to create drawings that do not exist at the time of the request.
G. The Company will share to the extent possible GIS data of its
facilities.
§6.6 Excavation and Construction. The Company shall be responsible for obtaining,
paying for, and complying with all applicable permits including, but not limited to,
excavation, street closure and street cut permits, in the manner required by the
laws, ordinances, and regulations of the Town. Although the Company shall be
responsible for obtaining and complying with the terms of such permits when
performing relocations requested by the Town under Section 6.8 of this
Franchise, the Town will not require the Company to pay the fees charged for
such permits. Upon the Company submitting a construction design plan, the
Town shall promptly and fully advise the Company in writing of all requirements
for restoration of Town Streets in advance of Company excavation projects in
Town Streets, based upon the design submitted.
§6.7 Restoration. When the Company does any work in or affecting the Town Streets,
Public Utility Easements or Other Town Property, it shall, at its own expense,
promptly remove any obstructions placed thereon or therein by the Company and
restore such Town Streets, Public Utility Easements or Other Town Property to a
condition that is substantially the same as existed before the work, and that
meets applicable Town standards. If weather or other conditions do not permit
the complete restoration required by this Section, the Company may with the
approval of the Town, temporarily restore the affected Town Streets, Public Utility
Easements or Other Town Property, provided that such temporary restoration is
not at the Town’s expense and provided further that the Company promptly
undertakes and completes the required permanent restoration when the weather
or other conditions no longer prevent such permanent restoration. Upon the
request of the Town, the Company shall restore the Streets, Public Utility
Easements or Other Town Property to a better condition than existed before the
Company work was undertaken, provided that the Town shall be responsible for
any incremental costs of such restoration not required by then-current Town
standards, and provided the Town seeks and/or grants, as applicable, any
additional required approvals. If the Company fails to promptly restore the Town
Streets, Public Utility Easements or Other Town Property as required by this
Section, and if, in the reasonable discretion of the Town immediate action is
required for the protection of public health, safety or welfare, the Town may
restore such Streets, Public Utility Easements or Other Town Property or remove
the obstruction therefrom; provided however, Town actions do not interfere with
Company Facilities. The Company shall be responsible for the actual cost
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incurred by the Town to restore such Town Streets, Public Utility Easements or
Other Town Property or to remove any obstructions therefrom. In the course of
its restoration of Town Streets, Public Utility Easements or Other Town Property
under this Section, the Town shall not perform work on Company facilities unless
specifically authorized by the Company in writing on a project by project basis
and subject to the terms and conditions agreed to in such authorization.
§6.8 Relocation of Company Facilities.
A. Relocation Obligation. The Company shall temporarily or
permanently remove, relocate, change or alter the position of any Company
Facility (collectively, “Relocate(s),” “Relocation(s)” or “Relocated”) in Town
Streets or in Other Town Property at no cost or expense to the Town whenever
such Relocation is necessary for the completion of any Public Project. In the
case of Relocation that is necessary for the completion of any Public Project in a
Public Utility Easement, the Company shall not be responsible for any relocation
costs. In the event of any Relocation contemplated pursuant to this Section
6.8A, the Company and the Town agree to cooperate on the location and
Relocation of the Company Facilities in the Town Streets or Other Town Property
in order to achieve Relocation in the most efficient and cost-effective manner
possible. Notwithstanding the foregoing, once the Company has Relocated any
Company Facility at the Town’s direction, if the Town requests that the same
Company Facility be Relocated within two (2) years, the subsequent Relocation
shall not be at the Company’s expense. Nothing provided herein shall prevent
the Company from obtaining reimbursement of its Relocation costs from third
parties.
B. Private Projects. Subject to Section 6.8.F, the Company shall not
be responsible for the expenses of any Relocation required by Private Projects,
and the Company has the right to require the payment of estimated Relocation
expenses from the party causing, or responsible for, the Relocation before
undertaking the Relocation.
C. Relocation Performance. The Relocations set forth in Section 6.8.A
of this Franchise shall be completed within a reasonable time, not to exceed one
hundred twenty (120) days from the later of the date on which the Town designee
requests, in writing, that the Relocation commence, or the date when the
Company is provided all Supporting Documentation. The Company shall receive
an extension of time to complete a Relocation where the Company's
performance was delayed due to Force Majeure or the failure of the Town to
provide adequate Supporting Documentation. The Company has the burden of
presenting information to reasonably demonstrate the basis for the delay. Upon
written request of the Company, the Town may also grant the Company
reasonable extensions of time for good cause shown and the Town shall not
unreasonably withhold or condition any such extension.
D. Town Revision of Supporting Documentation. Any revision by the
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Town of Supporting Documentation provided to the Company that causes the
Company to substantially redesign and/or change its plans regarding facility
Relocation shall be deemed good cause for a reasonable extension of time to
complete the Relocation under the Franchise.
E. Completion. Each such Relocation shall be complete only when
the Company actually Relocates the Company Facilities, restores the Relocation
site in accordance with Section 6.7 of this Franchise or as otherwise agreed with
the Town, and removes from the site or properly abandons on site all unused
facilities, equipment, material and other impediments.
F. Scope of Obligation. Notwithstanding anything to the contrary in
this Franchise, the Company shall not be required to Relocate any Company
Facilities from property (a) owned by the Company in fee; or (b) in which the
Company has a property right, grant or interest, including without limitation an
easement.
G. Underground Relocation. Underground facilities shall be Relocated
underground. Above ground facilities shall be Relocated above ground unless
the Company is paid for the incremental amount by which the underground cost
would exceed the above ground cost of Relocation.
H. Coordination.
(1) When requested in writing by the Town designee or the
Company, representatives of the Town and the Company shall
meet to share information regarding anticipated projects which will
require Relocation of Company Facilities in Town Streets. Such
meetings shall be for the purpose of minimizing conflicts where
possible and to facilitate coordination with any reasonable timetable
established by the Town for any Public Project.
(2) The Town shall make reasonable best efforts to provide the
Company with two (2) years advance notice of any planned street
repaving. The Company shall make reasonable best efforts to
complete any necessary or anticipated repairs or upgrades to
Company Facilities that are located underneath the Streets within
the two-year period if practicable.
I. Proposed Alternatives or Modifications. Upon receipt of written
notice of a required Relocation, the Company may propose an alternative to or
modification of the Public Project requiring the Relocation in an effort to mitigate
or avoid the impact of the required Relocation of Company Facilities. The Town
shall in good faith review the proposed alternative or modification. The
acceptance of the proposed alternative or modification shall be at the sole
discretion of the Town. In the event the Town accepts the proposed alternative
or modification, the Company agrees to promptly compensate the Town for all
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additional costs, expenses or delay that the Town reasonably determines
resulted from the implementation of the proposed alternative.
§6.9 New or Modified Service Requested by Town. The conditions under which the
Company shall install new or modified Utility Service to the Town as a customer
shall be governed by this Franchise and the Company’s Tariffs and the Tariffs
shall control in the event of a conflict.
§6.10 Service to New Areas. If the territorial boundaries of the Town are expanded
during the term of this Franchise, the Company shall, to the extent permitted by
law, extend service to Residents in the expanded area at the earliest practicable
time if the expanded area is within the Company’s PUC-certificated service
territory. Service to the expanded area shall be in accordance with the terms of
the Tariffs and this Franchise, including the payment of franchise fees.
§6.11 Town Not Required to Advance Funds If Permitted by Tariffs. Upon receipt of
the Town’s authorization for billing and construction, the Company shall install
Company Facilities to provide Utility Service to the Town as a customer, without
requiring the Town to advance funds prior to construction. The Town shall pay
for the installation of Company Facilities once completed in accordance with the
Tariffs. Notwithstanding anything to the contrary, the provisions of this Section
allowing the Town to not advance funds prior to construction shall only apply to
the extent permitted by the Tariffs.
§6.12 Technological Improvements. The Company shall use its best efforts to
incorporate, as soon as practicable, technological advances in its equipment and
service within the Town when such advances are technically and economically
feasible and are safe and beneficial to the Town and its Residents.
ARTICLE 7
RELIABILITY
§7.1 Reliability. The Company shall operate and maintain Company Facilities
efficiently and economically and in accordance with the high standards and best
systems, methods and skills consistent with the provision of adequate, safe and
reliable Utility Service.
§7.2 Franchise Performance Obligations. The Company recognizes that, as part of its
obligations and commitments under this Franchise, the Company shall carry out
each of its performance obligations in a timely, expeditious, efficient, economical
and workmanlike manner.
§7.3 Reliability Reports. Upon written request, the Company shall provide the Town
with a report regarding the reliability of Company Facilities and Utility Service.
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ARTICLE 8
COMPANY PERFORMANCE OBLIGATIONS
§8.1 New or Modified Service to Town Facilities. In providing new or modified Utility
Service to Town facilities, the Company agrees to perform as follows:
A. Performance. The Company shall complete each project requested
by the Town within a reasonable time. The Parties agree that a reasonable time
shall not exceed one hundred eighty (180) days from the date upon which the
Town designee makes a written request and provides the required Supporting
Documentation for all Company Facilities other than traffic facilities. The
Company shall be entitled to an extension of time to complete a project where
the Company's performance was delayed due to Force Majeure. Upon request
of the Company, the Town designee may also grant the Company reasonable
extensions of time for good cause shown and the Town shall not unreasonably
withhold any such extension.
B. Town Revision of Supporting Documentation. Any revision by the
Town of Supporting Documentation provided to the Company that causes the
Company to substantially redesign and/or change its plans regarding new or
modified service to Town facilities shall be deemed good cause for a reasonable
extension of time to complete the Relocation under the Franchise.
C. Completion/Restoration. Each such project shall be complete only
when the Company actually provides the service installation or modification
required, restores the project site in accordance with the terms of the Franchise
or as otherwise agreed with the Town and removes from the site or properly
abandons on site any unused facilities, equipment, material and other
impediments.
§8.2 Adjustments To Company Facilities. The Company shall perform adjustments to
Company Facilities, including manholes and other appurtenances in Streets and
Other Town Property, to accommodate Town street maintenance, repair and
paving operations at no cost to the Town. In providing such adjustments to
Company Facilities, the Company agrees to perform as follows:
A. Performance. The Company shall complete each requested
adjustment within a reasonable time, not to exceed thirty (30) days from the date
upon which the Town makes a written request and provides to the Company all
information reasonably necessary to perform the adjustment. The Company
shall be entitled to an extension of time to complete an adjustment where the
Company's performance was delayed due to Force Majeure. Upon request of
the Company, the Town may also grant the Company reasonable extensions of
time for good cause shown and the Town shall not unreasonably withhold any
such extension.
B. Completion/Restoration. Each such adjustment shall be complete
15
only when the Company actually adjusts and, if required, readjusts, Company
Facilities to accommodate Town operations in accordance with Town instructions
following Town paving operations.
C. Coordination. As requested by the Town or the Company,
representatives of the Town and the Company shall meet regarding anticipated
street maintenance operations which will require such adjustments to Company
Facilities in Streets or Other Town Property. Such meetings shall be for the
purpose of coordinating and facilitating performance under this Section.
§8.3 Third Party Damage Recovery.
A. Damage to Company Interests. If any individual or entity damages
any Company Facilities, to the extent permitted by law the Town will notify the
Company of any such incident of which it has knowledge and will provide to the
Company within a reasonable time all pertinent information within its possession
regarding the incident and the damage, including the identity of the responsible
individual or entity.
B. Damage to Company Property for which the Town is Responsible.
If any individual or entity damages any Company Facilities for which the Town is
obligated to reimburse the Company for the cost of the repair or replacement, to
the extent permitted by law, the Company will notify the Town of any such
incident of which it has knowledge and will provide to the Town within a
reasonable time all pertinent information within its possession regarding the
incident and the damage, including the identity of the responsible individual or
entity.
C. Meeting. The Company and the Town agree to meet periodically
upon written request of either party for the purpose of developing, implementing,
reviewing, improving and/or modifying mutually beneficial procedures and
methods for the efficient gathering and transmittal of information useful in
recovery efforts against third parties for damaging Company Facilities.
ARTICLE 9
BILLING AND PAYMENT
§9.1 Billing for Utility Services.
A. Monthly Billing. Unless otherwise provided in the Tariffs, the rules
and regulations of the PUC, or the Public Utility Law, the Company shall render
bills monthly to the offices of the Town for Utility Service and other related
services for which the Company is entitled to payment.
B. Address For Billing. Billings for service rendered during the
preceding month shall be sent to the person(s) designated by the Town and
payment for same shall be made as prescribed in this Franchise and the
applicable Company Tariffs.
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C. Supporting Documents. To the extent requested by the Town, the
Company shall provide all billings and any underlying Supporting Documentation
reasonably requested by the Town in an editable and manipulatble electronic
format that is acceptable to the Company and the Town.
D. Meetings. The Company agrees to meet with the Town designee
on a reasonable basis for the purpose of developing, implementing, reviewing,
and/or modifying mutually beneficial and acceptable billing procedures, methods,
and formats which may include, without limitation, electronic billing and upgrades
or beneficial alternatives to the Company’s current most advanced billing
technology, for the efficient and cost effective rendering and processing of such
billings submitted by the Company to the Town.
§9.2 Payment To Town. In the event the Town determines after written notice to the
Company that the Company is liable to the Town for payments, costs, expenses
or damages of any nature, and subject to the Company’s right to challenge such
determination, the Town may deduct all monies due and owing the Town from
any other amounts currently due and owing the Company. Upon receipt of such
written notice, the Company may request a meeting between the Company’s
designee and a designee of the Town to discuss such determination. The Town
agrees to attend such a meeting. As an alternative to such deduction and
subject to the Company’s right to challenge, the Town may bill the Company for
such assessment(s), in which case, the Company shall pay each such bill within
thirty (30) days of the date of receipt of such bill unless it challenges the validity
of the charge. If the Company challenges the Town determination of liability, the
Town shall make such payments to the Company for Utility Service received by
Town pursuant to the Tariffs until the challenge has been finally resolved.
ARTICLE 10
PURCHASE OR CONDEMNATION
§10.1 Municipal Right to Purchase or Condemn.
A. Right and Privilege of Town. The right and privilege of the Town to
construct, own and operate a municipal utility, and to purchase pursuant to a
mutually acceptable agreement or condemn any Company Facilities located
within the territorial boundaries of the Town, and the Company's rights in
connection therewith, as set forth in applicable provisions of the constitution,
statutes and case law of the State of Colorado relating to the acquisition of public
utilities, are expressly recognized. The Town shall have the right, within the time
frames and in accordance with the procedures set forth in such provisions, to
condemn Company Facilities, land, rights-of-way and easements now owned or
to be owned by the Company located within the territorial boundaries of the
Town. In the event of any such purchase, no value shall be ascribed or given to
the rights to use Town Streets, Public Easements or Other Town Property
granted under this Franchise in the valuation of the property thus sold.
B. Notice of Intent to Purchase or Condemn. The Town shall provide
17
the Company no less than one (1) year's prior written notice of its intent to
purchase or condemn Company Facilities. Nothing in this Section shall be
deemed or construed to constitute a consent by the Company to the Town’s
purchase or condemnation of Company Facilities, nor a waiver of any Company
defenses or challenges related thereto.
ARTICLE 11
TRANSFER OF FRANCHISE
§11.1 Consent of Town Required. The Company shall not transfer or assign any rights
under this Franchise to an unaffiliated third party, except by merger with such
third party, or, except when the transfer is made in response to legislation or
regulatory requirements, unless the Town approves such transfer or assignment
in writing. Approval of the transfer or assignment shall not be unreasonably
withheld, conditioned or delayed.
§11.2 Transfer Fee. In order that the Town may share in the value this Franchise adds
to the Company’s operations, any transfer or assignment of rights granted under
this Franchise requiring Town approval, as set forth herein, shall be subject to
the condition that the Company shall promptly pay to the Town a transfer fee in
an amount equal to the proportion of the Town’s then-population provided Utility
Service by the Company to the then-population of the Town and County of
Denver provided Utility Service by the Company multiplied by one million dollars
($1,000,000.00). Except as otherwise required by law, such transfer fee shall not
be recovered from a surcharge placed only on the rates of Residents.
ARTICLE 12
CONTINUATION OF UTILITY SERVICE
§12.1 Continuation of Utility Service. In the event this Franchise is not renewed at the
expiration of its term or is terminated for any reason, and the Town has not
provided for alternative utility service, the Company shall have no right or
obligation to remove any Company Facilities from Streets, Public Utility
Easements or Other Town Property or discontinue providing Utility Service
unless otherwise ordered by the PUC, and shall continue to provide Utility
Service within the Town until the Town arranges for utility service from another
provider. The Town acknowledges and agrees that the Company has the right to
use Streets, Other Town Property and Public Easements during any such period.
The Company further agrees that it will not withhold any temporary Utility
Services necessary to protect the public. The Town agrees that in the
circumstances of this Article, the Company shall be entitled to monetary
compensation as provided in the Tariffs and the Company shall be entitled to
collect from Residents and, upon the Town’s compliance with applicable
provisions of law, shall be obligated to pay the Town, at the same times and in
the same manner as provided in the Franchise, an aggregate amount equal to
the amount which the Company would have paid as a franchise fee as
consideration for use of the Town’s Streets and Other Town Property. Only upon
18
receipt of written notice from the Town stating that the Town has adequate
alternative Utility Service for Residents and upon order of the PUC shall the
Company be allowed to discontinue the provision of Utility Service to the Town
and its Residents.
ARTICLE 13
INDEMNIFICATION AND IMMUNITY
§13.1 Town Held Harmless. The Company shall indemnify, defend and hold the Town
harmless from and against claims, demands, liens and all liability or damage of
whatsoever kind on account of or directly arising from the grant of this Franchise,
or the exercise by the Company of the related rights, but in both instances only to
the extent caused by the negligence or intentional misconduct of the Company,
and shall pay the costs of defense plus reasonable attorneys’ fees. The Town
shall (a) give prompt written notice to the Company of any claim, demand or lien
with respect to which the Town seeks indemnification hereunder; and, (b) unless
in the Town’s judgment a conflict of interest may exist between the Town and the
Company with respect to such claim, demand or lien, shall permit the Company
to assume the defense of such claim, demand, or lien with counsel reasonably
satisfactory to the Town. If such defense is assumed by the Company, the
Company shall not be subject to liability for any settlement made without its
consent. If such defense is not assumed by the Company or if the Town
determines that a conflict of interest exists, the parties reserve all rights to seek
all remedies available in this Franchise against each other. Notwithstanding any
provision hereof to the contrary, the Company shall not be obligated to indemnify,
defend or hold the Town harmless to the extent any claim, demand or lien arises
out of or in connection with any negligent or intentional act or failure to act of the
Town or any of its officers, employees or authorized agents, or to the extent that
the Town is acting in the capaTown of a Company customer.
§13.2 Immunity. Nothing in this Section or any other provision of this Franchise shall
be construed as a waiver of the notice requirements, defenses, immunities and
limitations the Town may have under the Colorado Governmental Immunity Act
(§4-10-101, C.R. S., et. seq.) or of any other defenses, immunities, or limitations
of liability available to the Town by law.
ARTICLE 14
BREACH
§14.1 Non-Contestability. The Town and the Company agree to take all reasonable
and necessary actions to assure that the terms of this Franchise are performed.
The Company reserves the right to seek a change in its Tariffs, including but not
limited to the rates, charges, terms, and conditions of providing Utility Service to
the Town and its Residents, and the Town retains all rights that it may have to
intervene and participate in any such proceedings.
§14.2 Breach.
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A. Notice/Cure/Remedies. Except as otherwise provided in this
Franchise, if a party (the “breaching party”) to this Franchise fails or refuses to
perform any of the terms or conditions of this Franchise (a “breach”), the other
party (the “non-breaching party”) may provide written notice to the breaching
party of such breach. Upon receipt of such notice, the breaching party shall be
given a reasonable time, not to exceed thirty (30) days if such breach can be
cured within that time period, in which to remedy the breach. If the breaching
party does not remedy the breach within the time allowed in the notice, the non-
breaching party may exercise the following remedies for such breach:
(1) specific performance of the applicable term or condition as
allowed by law; and
(2) recovery of actual damages from the date of such breach
incurred by the non-breaching party in connection with the breach,
but excluding any special, punitive or consequential damages.
B. Termination of Franchise by Town. In addition to the foregoing
remedies, if the Company fails or refuses to perform any material term or
condition of this Franchise (a “material breach”), the Town may provide written
notice to the Company of such material breach. Upon receipt of such notice, the
Company shall be given a reasonable time, not to exceed ninety (90) days if the
breach can be cured within that time period, in which to remedy the material
breach. If the Company does not remedy the material breach within the time
allowed in the notice, the Town may, at its sole option, terminate this Franchise.
This remedy shall be in addition to the Town’s right to exercise any of the
remedies provided for elsewhere in this Franchise. Upon such termination, the
Company shall continue to provide Utility Service to the Town and its Residents
(and shall continue to have associated rights and grants needed to provide such
service) until the Town makes alternative arrangements for such service and until
otherwise ordered by the PUC and the Company shall be entitled to collect from
Residents and, upon the Town complying with applicable provisions of law, shall
be obligated to pay the Town, at the same times and in the same manner as
provided in the Franchise, an aggregate amount equal to the amount which the
Company would have paid as a franchise fee as consideration for use of the
Town Streets and Other Town Property. Unless otherwise provided by law, the
Company shall be entitled to collect such amount from Residents.
C. Company Shall Not Terminate Franchise. In no event does the
Company have the right to terminate this Franchise.
D. No Limitation. Except as provided herein, nothing in this Franchise
shall limit or restrict any legal rights or remedies that either party may possess
arising from any alleged breach of this Franchise.
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ARTICLE 15
AMENDMENTS
§15.1 Proposed Amendments. At any time during the term of this Franchise, the Town
or the Company may propose amendments to this Franchise by giving thirty (30)
days written notice to the other of the proposed amendment(s) desired, and both
parties thereafter, through their designated representatives, will, within a
reasonable time, negotiate in good faith in an effort to agree upon mutually
satisfactory amendment(s). However, nothing contained in this Section shall be
deemed to require either party to consent to any amendment proposed by the
other party.
§15.2 Effective Amendments. No alterations, amendments or modifications to this
Franchise shall be valid unless executed in writing by the parties, which
alterations, amendments or modifications shall be adopted with the same
formality used in adopting this Franchise, to the extent required by law. Neither
this Franchise, nor any term hereof, may be changed, modified or abandoned, in
whole or in part, except by an instrument in writing, and no subsequent oral
agreement shall have any validity whatsoever.
ARTICLE 16
EQUAL OPPORTUNITY
§16.1 Economic Development. The Company is committed to the principle of
stimulating, cultivating and strengthening the participation and representation of
persons of color, women and members of other under-represented groups within
the Company and in the local business community. The Company believes that
increased participation and representation of under-represented groups will lead
to mutual and sustainable benefits for the local economy. The Company is
committed also to the principle that the success and economic well-being of the
Company is closely tied to the economic strength and vitality of the diverse
communities and people it serves. The Company believes that contributing to the
development of a viable and sustainable economic base among all Company
customers is in the best interests of the Company and its shareholders.
§16.2 Employment.
A. Programs. The Company is committed to undertaking programs that
identify, consider and develop persons of color, women and members of other
under-represented groups for positions at all skill and management levels within
the Company.
B. Businesses. The Company recognizes that the Town and the business
community in the Town, including women and minority owned businesses,
provide a valuable resource in assisting the Company to develop programs to
promote persons of color, women and members of under represented
communities into management positions, and agrees to keep the Town regularly
21
advised of the Company's progress by providing the Town a copy of the
Company's annual affirmative action report upon the Town’s written request.
C. Recruitment. In order to enhance the diversity of the employees of the
Company, the Company is committed to recruiting diverse employees by
strategies such as partnering with colleges, universities and technical schools
with diverse student populations, utilizing diversity-specific media to advertise
employment opportunities, internships, and engaging recruiting firms with
diversity-specific expertise.
D. Advancement. The Company is committed to developing a world-class
workforce through the advancement of its employees, including persons of color,
women and members of under represented groups. In order to enhance
opportunities for advancement, the Company will offer training and development
opportunities for its employees. Such programs may include mentoring
programs, training programs, classroom training and leadership programs.
E. Non-Discrimination. The Company is committed to a workplace free of
discrimination based on race, color, religion, national origin, gender, age, military
status, sexual orientation, marital status, or physical or mental disability or any
other protected status in accordance with all federal, state or local laws. The
Company shall not, solely because of race, creed, color, religion, sex, age,
national origin or ancestry or handicap, refuse to hire, discharge, promote,
demote or discriminate in matters of compensation, against any person otherwise
qualified.
F. Board of Directors. The Company shall identify and consider women,
persons of color and other under represented groups to recommend for its Board
of Directors, consistent with the responsibility of boards to represent the interests
of the Shareholders, customers and employees of the Company.
§16.3 Contracting.
A. Contracts. It is the Company's policy to make available to minority and
women owned business enterprises and other small and/or disadvantaged
business enterprises the maximum practical opportunity to compete with other
service providers, contractors, vendors and suppliers in the marketplace. The
Company is committed to increasing the proportion of Company contracts
awarded to minority and women owned business enterprises and other small
and/or disadvantaged business enterprises for services, construction, equipment
and supplies to the maximum extent consistent with the efficient and economical
operation of the Company.
B. Community Outreach. The Company agrees to maintain and
continuously develop contracting and community outreach programs calculated
to enhance opportunity and increase the participation of minority and women
owned business enterprises and other small and/or disadvantaged business
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enterprises to encourage economic vitality. The Company agrees to keep the
Town regularly advised of the Company's programs.
C. Community Development. The Company shall maintain and support
partnerships with local chambers of commerce and business organizations,
including those representing predominately minority owned, women owned and
disadvantaged businesses, to preserve and strengthen open communication
channels and enhance opportunities for minority owned, women owned and
disadvantaged businesses to contract with the Company.
§16.4 Coordination. Town agencies provide collaborative leadership and mutual
opportunities or programs relating to Town based initiatives on economic
development, employment and contracting opportunity. The Company agrees to
review Company programs and mutual opportunities responsive to this Article
with these agencies, upon their request, and to collaborate on best practices
regarding such programs and coordinate and cooperate with the agencies in
program implementation.
ARTICLE 17
MISCELLANEOUS
§17.1 No Waiver. Neither the Town nor the Company shall be excused from complying
with any of the terms and conditions of this Franchise by any failure of the other,
or any of its officers, employees, or agents, upon any one or more occasions, to
insist upon or to seek compliance with any such terms and conditions.
§17.2 Successors and Assigns. The rights, privileges, and obligations, in whole or in
part, granted and contained in this Franchise shall inure to the benefit of and be
binding upon the Company, its successors and assigns, to the extent that such
successors or assigns have succeeded to or been assigned the rights of the
Company pursuant to Article 11 of this Franchise. Upon a transfer or assignment
pursuant to Article 11, the Company shall be relieved from all liability from and
after the date of such transfer.
§17.3 Third Parties. Nothing contained in this Franchise shall be construed to provide
rights to third parties.
§17.4 Notice. Both parties shall designate from time to time in writing representatives
for the Company and the Town who will be the persons to whom notices shall be
sent regarding any action to be taken under this Franchise. Notice shall be in
writing and forwarded by certified mail, reputable overnight courier or hand
delivery to the persons and addresses as hereinafter stated, unless the persons
and addresses are changed at the written request of either party, delivered in
person or by certified mail. Notice shall be deemed received (a) three days after
being mailed via the US Postal Service, (b) one business day after mailed if via
reputable overnight courier, or (3) upon hand delivery if delivered by courier.
Until any such change shall hereafter be made, notices shall be sent as follows:
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To the Town:
Town Clerk
Town of Estes Park
170 MacGregor Avenue
PO BOX 1200
Estes Park, Colorado 80517
To the Company:
Regional Vice President, Customer and Community Relations
Public Service Company of Colorado
P.O. Box 840
Denver, Colorado 80201
With a copy to:
Legal Department
Public Service Company of Colorado
P.O. Box 840
Denver, Colorado 80201
§17.5 Examination Of Records. The parties agree that any duly authorized
representative of the Town and the Company shall have access to and the right
to examine any directly pertinent non-confidential books, documents, papers, and
records of the other party involving any activities related to this Franchise. All
such records must be kept for a minimum of the lesser of three (3) years or the
time period permitted by a party’s record retention policy. To the extent that
either party believes in good faith that it is necessary in order to monitor
compliance with the terms of this Franchise to examine confidential books,
documents, papers, and records of the other party, the parties agree to meet and
discuss providing confidential materials, including but not limited to providing
such materials subject to a reasonable confidentiality agreement that effectively
protects the confidentiality of such materials and complies with PUC rules and
regulations.
§17.6 List of Utility Property. The Company shall provide the Town, upon request not
more than once every two (2) years, a list of electric utility-related real property
owned in fee by the Company within the Town. All such records must be kept for
a minimum of three (3) years or such shorter duration if required by Company
policy.
§17.7 PUC Filings. Upon written request by the Town, the Company shall provide the
Town non-confidential copies of all applications, advice letters and periodic
reports, together with any accompanying non-confidential testimony and exhibits,
filed by the Company with the Colorado Public Utilities Commission.
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Notwithstanding the foregoing, notice regarding any gas and electric filings that
may affect utility service rates in the Town shall be sent to the Town upon filing.
§17.8 Information. Upon written request, the Company shall provide the Town Clerk or
the Town Clerk’s designee with:
A. a copy of the Company’s or its parent company’s consolidated
annual financial report, or alternatively, a URL link to a location where the same
information is available on the Company’s web site;
B. maps or schematics indicating the location of specific Company
Facilities (subject to Town executing a confidentiality agreement as required by
Company policy), including gas or electric lines, located within the Town, to the
extent those maps or schematics are in existence at the time of the request and
related to an ongoing project within the Town. The Company does not represent
or warrant the accuracy of any such maps or schematics; and
C. a copy of any report required to be prepared for a federal or state
agency detailing the Company’s efforts to comply with federal and state air and
water pollution laws.
§17.9 Payment of Taxes and Fees.
A. Impositions. The Company shall pay and discharge as they become
due, promptly and before delinquency, all taxes, assessments, rates, charges,
license fees, municipal liens, levies, excises, or imposts, whether general or
special, or ordinary or extraordinary, of every name, nature, and kind
whatsoever, including all governmental charges of whatsoever name, nature, or
kind, which may be levied, assessed, charged, or imposed, or which may
become a lien or charge against this Franchise ("Impositions"), provided that
Company shall have the right to contest any such Impositions and shall not be in
breach of this Section so long as it is actively contesting such Impositions.
B. Town Liability. The Town shall not be liable for the payment of taxes,
late charges, interest or penalties of any nature other than pursuant to applicable
Tariffs.
§17.10 Conflict of Interest. The parties agree that no official, officer or employee
of the Town shall have any personal or beneficial interest whatsoever in the
services or property described herein and the Company further agrees not to hire
or contract for services any official, officer or employee of the Town to the extent
prohibited by law, including ordinances and regulations of the Town.
§17.11 Certificate of Public Convenience and Necessity. The Town agrees to support
the Company’s application to the PUC to obtain a certificate of public
convenience and necessity to exercise its rights and obligations under this
Franchise.
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§17.12 Authority. Each party represents and warrants that except as set forth below, it
has taken all actions that are necessary or that are required by its ordinances,
regulations, procedures, bylaws, or applicable law, to legally authorize the
undersigned signatories to execute this Franchise on behalf of the parties and to
bind the parties to its terms. The persons executing this Franchise on behalf of
each of the parties warrant that they have full authorization to execute this
Franchise. The Town acknowledges that notwithstanding the foregoing, the
Company requires a certificate of public convenience and necessity from the
PUC in order to operate under the terms of this Franchise.
§17.13 Severability. Should any one or more provisions of this Franchise be
determined to be unconstitutional, illegal, unenforceable or otherwise void, all
other provisions nevertheless shall remain effective; provided, however, to the
extent allowed by law, the parties shall forthwith enter into good faith
negotiations and proceed with due diligence to draft one or more substitute
provisions that will achieve the original intent of the parties hereunder.
§17.14 Force Majeure. Neither the Town nor the Company shall be in breach of this
Franchise if a failure to perform any of the duties under this Franchise is due to
Force Majeure, as defined herein.
§17.15 Earlier Franchises Superseded. This Franchise shall constitute the only
franchise between the Town and the Company related to the furnishing of Utility
Service, and it supersedes and cancels all former franchises between the
parties hereto.
§17.16 Titles Not Controlling. Titles of the paragraphs herein are for reference only,
and shall not be used to construe the language of this Franchise.
§17.17 Applicable Law. Colorado law shall apply to the construction and enforcement
of this Franchise. The parties agree that venue for any litigation arising out of
this Franchise shall be in the District Court for Weld County, State of Colorado.
§17.18 Payment Of Expenses Incurred By Town In Relation To Franchise Agreement.
The Company shall pay for expenses reasonably incurred by the Town for the
adoption of this Franchise, including the publication of notices, publication of
ordinances, and photocopying of documents.
§17.19 Incremental Costs. The parties acknowledge that PUC rules, regulations and
final decisions may require that incremental costs of complying with certain
provisions of this Franchise be borne by customers of the Company who are
located within the Town.
§17.20 Conveyance of Town Streets, Public Easements or Other Town Property. In the
event the Town vacates, releases or sells, conveys, transfers or otherwise
disposes of a Town Street, or any portion of a Public Utility Easement or Other
Town Property in which Company Facilities are located, the Town shall reserve
an easement in favor of the Company over that portion of the Street, Public
26
Utility Easement or Other Town Property in which such utilities are. The
Company and the Town shall work together to prepare the necessary legal
description to effectuate such reservation. For the purposes of Section 6.8.A of
this Franchise, the land vacated, released, sold, conveyed, transferred or
otherwise disposed of by the Town shall no longer be deemed to be a Street or
Other Town Property from which the Town may demand the Company
temporarily or permanently Relocate Company Facilities at the Company’s
expense.
IN WITNESS WHEREOF, the parties have caused this Franchise to be executed
as of the day and year first above written.
TOWN OF ESTES PARK
__________________________
William C. Pinkham, Mayor
ATTEST:
_______________________________
Town Clerk, Town of Estes Park
APPROVED AS TO FORM:
_______________________________
Town Attorney, Town of Estes Park
PUBLIC SERVICE COMPANY OF
COLORADO
_________________________________
Jerome Davis, Regional Vice President,
Customer and Community Relations
ATTEST:
_________________________________
Assistant Secretary
RESOLUTION NO. 19-12
EXTENDING TERM OF FRANCHISE OF PUBLIC SERVICE COMPANY OF
COLORADO
WHEREAS, Public Service Company of Colorado (“Public Service”) is the
current Franchisee pursuant to the terms and conditions of the Grant of
Franchise as more fully set forth in Ordinance No. 11-92 adopted by the Board of
Trustees on November 24, 1992; and
WHEREAS, the term of the franchise expires on December 26, 2012; and
WHEREAS, Public Service has given notice that on December 11, 2012
at the regular meeting of the Town Board, Public Service will make application to
the Town for the passage of an ordinance granting to Public Service a Franchise
in the Town; and
WHEREAS, such Notice of Application has been published as required by
applicable law; and
WHEREAS, it is necessary to extend the term of the franchise from
December 26, 2012 through March 1, 2013 in order for the Town Board to
review, consider and, if appropriate, adopt an ordinance granting to Public
Service the requested franchise; and
WHEREAS, the Board of Trustees of the Town of Estes Park has
determined that it is in the public interest to extend the term of the current
franchise of Public Service from December 26, 2012, through and including
March 1, 2013.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES
OF THE TOWN OF ESTES PARK as follows:
1. The Board of Trustees hereby extends the franchise of Public Service
as granted in Ordinance No. 11-92 from December 26, 2012, through
and including March 1, 2013.
PASSED AND ADOPTED at a regular meeting this ____ day of ____________,
2012.
Mayor
ATTEST:
Town Clerk