APPENDIX I - FranchisesORDINANCE NO. 360, PASSED NOVEMBER 10, 1980, GRANTING A FRANCHISE TO CABLE TV OF EATON AND AULT, INC. SECTION 1 - Title This Ordinance shall be known and may be cited as Cable Television Ordinance. SECTION 2 - Preamble This Ordinance was passed after a full, open, and public hearing upon prior notice and opportunity of all interested parties to be heard and upon careful consideration of Grantee's qualifications, including its legal, character, financial and technical qualifications and the adequacy and feasibility of its construction arrangements. SECTION 3 - Definitions For the purpose of this Ordinance, and when not inconsistent with the context, words used herein in the present tense include the future; words in plural include the singular, and vice versa. The word "shall" is always mandatory. The captions supplied herein for each section are for convenience only. Said captions have no force of law, are not part of the section, and are not to be used in construing the language of the section. The following terms and phrases, as used herein, shall be given the meaning set forth below: (A) "Town" is the Town of Eaton, a municipal corporation under the laws of the State of Colorado.
(B) "Grantee" is Cable TV of Eaton and Ault, Inc., a corporation organized and existing under the laws of the State of Colorado, and it is the grantee of rights under this franchise. (C) "Town Board" is the Town Board of the Town of Eaton or its designated representative. (D) "Federal Communications Commission" or "FCC" is the present Federal agency of that name as constituted by the Communications Act of 1934, or any successor agency created by the United States Congress. (E) "Person" is any individual, firm, partnership, association, corporation, company or organization of any kind. (F) "Gross Revenues" shall include all receipts derived by Grantee from regular subscriber monthly service charges in connection with the carriage of broadcast signals and Federal Communication Commission mandated non-broadcast services within the Town, and the net receipts from "ancillary" or "auxiliary" services, which include, but are not limited to, advertising, leased channels, and programming supplied on a per program or per channel basis, if any; but shall not include any refunds or credits made to subscribers or any taxes (not including real or personal property taxes) imposed upon the services furnished by Grantee. Nor shall it include revenue from installations, disconnections, and re-installation charges. (G) "Regular subscriber services" shall include the carriage or broadcast signals and FCC mandated non-broadcast services, but shall not include "ancillary" or "auxiliary" services, which include, but are not limited to, advertising, leased channels, and programming supplied on a per program or per channel charge basis, if any. (H) "Net Revenue" from "ancillary" or "auxiliary" services shall include the gross receipts from such services, less the cost of rent, royalties or other similar charges incurred in providing such service. SECTION 4 - Grant of Authority There is hereby granted by the Town to Grantee the right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over or under the streets, alleys, public utility easements, public ways and public places now laid out or dedicated and all extensions thereof and additions thereto in the Town, all poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the maintenance and operation in the Town of a cable television system for the transmission of television signals and all other signals permitted by the FCC, either separately or upon or in conjunction with any public utility maintaining the same in the Town, with all of the necessary and desirable appliances and appurtenances pertaining thereto. Without limiting the generality of the foregoing, this franchise and grant shall and does hereby include the right in, over, under and upon the streets, sidewalks, alleys, public utility easements and public grounds and places in the Town to install, erect, operate or in any way acquire the use of, as by leasing or licensing, all lines and equipment necessary to a cable television system and the right to make connections to subscribers and the right to repair, replace, enlarge and extend said lines, equipment and connections. The rights herein granted for the purposes herein set forth shall not be exclusive, and the Town reserves the right to grant a similar use of said streets, alleys, public utility easements, public ways and places to any person at any time during the period of this franchise; provided, however, that nothing contained herein shall be deemed to require the granting of additional CATV franchises if, in the opinion of the Town Council, it is in the public interest to restrict such franchises to one or more. SECTION 5 - Police Power Grantee shall at all times during the term of this franchise be subject to all lawful exercise of the police power of the Town. The right is hereby reserved to the Town to adopt, in addition to the provisions herein contained and any other existing applicable ordinances, such additional applicable ordinances as it shall find necessary in the exercise of its police power; provided, however, that such additional ordinances shall be reasonable, shall not conflict with or alter in any manner the rights granted herein, and shall not conflict with the laws of the State of Colorado, the laws of the United States of America, or the rules, regulations, and policies of the FCC. SECTION 6 - Indemnification Grantee shall save the Town harmless from all loss sustained by the Town on account of any suit, judgment, execution, claim or demand whatsoever against the Town resulting from negligence on the part of Grantee in the construction, operation or maintenance of its cable television system in the Town; and for this purpose Grantee shall carry property damage and personal injury insurance with some responsible insurance company or companies qualified to do business in the State of Colorado. The amounts of such insurance to be carried for liability due to property damage shall be $100,000 as to any one occurrence; and against liability due to injury to or death of person, $300,000 as to any one person and $300,000 as to any one occurrence. The Town shall be named as an additional insured on all liability policies. The Town shall notify Grantee, in writing, within fifteen (15) days after the presentation of any claim or demand, either by suit or otherwise, made against the Town on account of any negligence as aforesaid on the part of Grantee. Where any such claim or demand against the Town is made by suit or other legal action, written notice thereof shall be given by the Town to Grantee not less than ten (10) days prior to the date upon which an answer to such legal action is due or within fifteen (15) days after the claim or demand is made upon the Town, whichever notice period yields Grantee the larger amount of time within which to prepare an answer. Failure by the Town to notify Grantee properly in accordance with the foregoing of any such claim, suit, or demand against the Town shall release Grantee from its obligation to indemnify the Town as provided herein. SECTION 7 - Construction and Maintenance (A) All structures, lines and equipment erected by Grantee within the Town shall be so located as to cause minimum interference with the proper use of streets, alleys, public utility easements and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners, and Grantee shall comply with all reasonable, proper and lawful ordinances of the Town now or hereafter in force. Existing poles, posts, conduits, and other such structures of any electric power system, telephone company, or other public utility located in the Town shall be made available to Grantee for leasing or licensing upon reasonable terms and rates and shall be used to the extent practicable in order to minimize interference with travel and to avoid unnecessary duplication of facilities. The Town shall actively assist Grantee to the fullest extent necessary in obtaining reasonable joint pole or conduit use agreements from the owners of existing poles or conduits. To the extent that existing poles, posts, conduits, and other such structures are not available, or are not available under reasonable limitation upon the use of Grantee's cable television system, Grantee shall have the right to purchase, lease, or in any other manner acquire land, rights-of-way, or public utility easements upon or under which to erect and maintain its own poles, conduits, and other such structures as may be necessary for the construction and maintenance of its cable television system.
All service lines shall be underground in those areas of the municipality where either public utilities providing telephone or electric service are underground at the time of installation. In areas where telephone and electric utility facilities are above ground at the time of installation, the Grantee may install its services above ground. If, subsequently, the electric utility facilities of others go underground, then in that event and to that extent the affected facilities of the Grantee also shall go underground simultaneously. (B) (1) In case of any disturbance by Grantee of pavement, sidewalk, driveway or other surfacing, Grantee shall, at its own cost and expense and in a manner approved by the Town, replace and restore all paving, sidewalk, driveway or surface so disturbed in as good condition as before said work was commenced.
(2) The Grantee shall deliver to the Grantor a bond, letter of credit, or cash in the amount of $2,000 guaranteeing performance of the work described in subparagraph (B)(1) above. When all work has been completed to the satisfaction of the Town, the bond or letter of credit or cash shall be released. (C) In the event that at any time during the period of this franchise the Town shall lawfully elect to alter or change any street, alley, public utility easement, or other public way requiring the relocation of Grantee's facilities, then in such event Grantee, upon reasonable notice by the Town, shall remove, relay and relocate the same at its own expense; provided, however, that where public funds are available for such relocation pursuant to law, Grantee shall not be required to pay the cost.
(D) Grantee shall, on the request of any person holding a building moving permit issued by the Town, temporarily raise or lower its lines to permit the moving of the building. The expense of such temporary removal shall be paid by the person requesting the same, and Grantee shall have the authority to require such payment in advance. (E) Grantee shall have the authority to trim trees upon and overhanging all streets, alleys, public utility easements, sidewalks and public places of the Town so as to prevent the branches of such trees from coming into contact with Grantee's facilities. (F) All poles, lines, structures and other facilities of Grantee in, on, over, and under the streets, sidewalks, alleys, public utility easements and public grounds of places of the Town shall be kept by Grantee at all times in a safe and substantial condition. (G) Grantee shall incorporate into its cable communication system a capability which will permit the Town in times of emergency to override the audio portions of at least one channel. Grantee shall designate a channel which will be used for emergency broadcasts. (H) Grantee will furnish connections to the nearest property line of all public schools within the limits of the Town, to the Town Library, and, upon request, to the Town Hall, and shall provide regular subscription services without any monthly service charge to the schools or Town; provided, however, that all wiring within any buildings contemplated within this section shall be done by the municipality or school district which owns the building. (I) All construction shall be in compliance with the Eaton Building and Electrical Codes. SECTION 8 - Commencement of Construction The Grantee shall commence construction within six (6) months from the effective date of this ordinance, and shall complete construction within twelve (12) months from the date construction is commenced. However, the Grantee will not be held liable for the completion as hereinabove set forth when delayed by any action of the Grantor, or when it is prevented from doing so by circumstances beyond its control such as unavailability of materials, acts of nature, or civil strife. SECTION 9 - FCC Rules Applicable This franchise is governed by and subject to all applicable rules, regulations and policies of the Federal Communications Commission, specifically including Part 76, and by the laws of the State of Colorado. Should there be any modifications of the provisions of Part 76 of the Rules and Regulations of the Federal Communications Commission, specifically including Section 76.31, that are inconsistent with this franchise, the Town and Grantee agree that this franchise shall be appropriately amended within one (1) year after the effective date of the FCC's adoption of the modification or upon renewal of this franchise, whichever occurs first. SECTION 10 - Franchise Term This franchise shall take effect and be in full force from and after acceptance by Grantee as provided in Section 16, and the same shall continue in full force and effect for a term of fifteen (15) years; provided, however, that should FCC authorization be necessary in connection with implementation or continuation of the cable television service contemplated by this franchise, then the term shall begin upon the effective date of such FCC authorization. SECTION 11 - Renewal Procedure At or before the expiration of the term of the grant, the Grantee may be considered by the Town for renewal of the grant for an extended term of fifteen (15) years. In determining at its option whether to grant the Grantee's application for an extended term, due consideration shall be given to Grantee's performance during the initial basic term, with such consideration pertaining to but not being limited to: the extent to which the state of the cable TV art shall have been improved, progressed, or otherwise changed, and whether and to what extent Grantee proposes to provide services to subscribers in conformity therewith; and whether and to what extent Grantee shall have performed in accordance with the requirements recited elsewhere herein pertaining to receipt of inquiries, requests, and complaints. SECTION 12 - Local Office and Complaint Procedure The Grantee shall maintain a local business office or agent within or in close proximity to the Town, for receiving, via non-toll telephone call, inquiries or complaints regarding quality of service, equipment, malfunctions, billing disputes and similar matters. Inquiries or complaints shall be received during normal business hours (9:00 a.m. to 5:00 p.m.) Monday through Friday and excepting holidays proclaimed by national, state or local governmental authority. Complaints for other than regular working hours may be made to a separate telephone maintained for that purpose which shall be listed in the telephone directory, or the same telephone number may be used, at the option of the Grantee. All complaints and inquiries will be investigated and responded to or acted upon as promptly as practical, and unless prevented by circumstances beyond Grantee's control, within three (3) business days after receipt of the same. The company shall maintain a maintenance service log indicating the date and time complaints are received and resolved, and the nature of the complaint and resolution. This record shall be made available for reasonable inspection by the Grantor. SECTION 13 - Forfeiture In addition to all other rights and powers pertaining to the Town by virtue of this authority or otherwise, the Town reserves the right to terminate and cancel this authority and all rights and privileges of the Grantee hereunder in the event that the Grantee: (A) Violates any provision of this authority or any rule, order, or determination of the Town Board made pursuant to this authority, except where such violation, other than of provisions concerning transfer or authority without prior Town approval, is without fault or through excusable neglect;
Any termination proceeding initiated by the Town shall occur only after thirty days' written notice to Grantee. The Grantee shall have an opportunity to respond to such a claim at a public hearing held in this matter. Grantee shall be a necessary party to all public hearings regarding operations or termination of said franchise.(B) Becomes insolvent, unable, or unwilling to pay its debts, or is adjudged bankrupt; (C) Attempts to dispose of any of the facilities or property of its CATV system in violation of the terms of this authority; (D) Attempts to evade any of the provisions of this authority or practices any fraud or deceit upon the Town; (E) Fails to begin or complete construction, and/or fails to provide services as otherwise required hereby; (F) Fails to restore system-wide service following 72 consecutive hours of interrupted service, except where prior approval of such interruption shall have been obtained from the Town, or in the event that any such action is caused by acts of God, national emergency, war, strikes, or other actions beyond the control of the Grantee. Providing that the Town Board may, in its discretion and upon a finding of violation or failure to comply, impose a lesser penalty than forfeiture of this franchise or excuse the violation or failure to comply upon a showing by Grantee of mitigating circumstances. Grantee shall have a right to appeal pursuant to Colorado Rules of Civil Procedure, Rule 106. In the event that forfeiture is imposed upon Grantee, it shall be afforded a period of six (6) months within which to sell, transfer, or convey this cable television system to a qualified purchaser at fair market value. During this six (6) month period, which shall run from the effective date of the final order or decision imposing forfeiture, including any appeal, Grantee shall have the right to operate this cable television system pursuant to the provisions of this franchise. At the expiration of such six (6) month period, the Town shall have the right, if a sale and transfer has not been completed, to require the Grantee to remove at its own expense all portions of the CATV system from all public ways within the Town. SECTION 14 - Surrender Right Grantee may surrender this franchise at any time upon filing with the Town Clerk of the Town a written notice of its intention to do so at least three (3) months before the surrender date. On the surrender date specified in the notice, all of the rights and privileges and all of the obligations, duties and liabilities of Grantee in connection with this franchise shall terminate. SECTION 15 - Transfers All of the rights and privileges and all of the obligations, duties and liabilities created by this franchise shall pass to and be binding upon the successors of the Town and the successors and assigns of Grantee; and the same shall not be assigned or transferred without the written approval of the Town Board, which approval shall not be unreasonably withheld; provided, however, that this section shall not prevent the assignment or hypothecation of the franchise by Grantee as security for debt without such approval; and provided further that transfers or assignments of this franchise between any parent and subsidiary corporation or between entities of which at least fifty per cent (50%) of the beneficial ownership is held by the same person, persons, or entities shall be permitted without the prior approval of the Town Council. SECTION 16 - Franchise Fee In consideration of the terms of this franchise, Grantee agrees to pay the Town a sum of money equal to three per cent (3%) of Grantee's gross revenues. Such annual sum shall be payable one-half (½) thereof at the end of each semi-annual period. The semi-annual anniversary shall be the last day of June and the last day of December of each year, and each semi-annual payment shall be paid within sixty (60) days thereafter. All other license fees or taxes (other than real or personal property taxes) levied upon Grantee by the Town shall be credited against the payment required herein. SECTION 17 - Receiver Sales Prohibited As a condition of this franchise, Grantee agrees that it shall not engage in the business of sales or repair of television receivers owned by its subscribers; nor shall it be responsible for the operating condition of said receivers; provided, however, that this paragraph shall not apply to converters, decoders, home interactive terminals and other such devices as may be used in furnishing any programming or service via Grantee's cable television system. SECTION 18 - Acceptance This Ordinance shall become effective when accepted by Grantee and shall then be and become a valid and binding contract between the Town and Grantee; provided, however, that this Ordinance shall be void unless Grantee shall, within ninety (90) days after the final passage of this Ordinance, file with the Town Clerk of the Town a written acceptance of this Ordinance and the franchise herein granted, agreeing that it will comply with all of the provisions and conditions hereof and that it will refrain from doing all of the things prohibited by this Ordinance. SECTION 19 - Unlawful Acts (A) It shall be unlawful for any person to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of Grantee's cable television system for the purpose of enabling himself or others to receive any television signals, radio signals, pictures, programs, sounds, or any other information or intelligence transmitted over Grantee's cable system without payment to Grantee or its lessee.
(B) It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove, or injure any cable, wires, or other equipment used for the distribution of television signals, radio signals, pictures, programs, sounds, or any other information or intelligence transmitted over Grantee's cable system. (C) It shall be a misdemeanor punishable by a fine of not more than Three Hundred Dollars ($300.00), or by imprisonment for a term not to exceed ninety (90) days, or both, for any person to violate any of the provisions of this section. SECTION 20 - Severability If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any Federal or State court or administrative or governmental agency of competent jurisdiction, specifically including the Federal Communications Commission, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof. SECTION 21 - Amendments It shall be the policy of the Grantor to liberally amend this franchise, upon application of the Grantee, only when necessary to enable the Grantee to take advantage of any developments in the field of transmission of television and radio signals or other electronic impulses for communications which will afford it an opportunity to more effectively, efficiently or economically serve its subscribers. However, this shall not in any way be construed to require the Grantor to make any such amendments. SECTION 22 - Effective Date This Ordinance shall become effective upon acceptance by Grantee as provided in Section 18. The effective date shall be the date upon which the written acceptance provided for in Section 18 is received by the Town Clerk. PASSED AND ADOPTED, SIGNED AND APPROVED this ______ day of ________________, 19__. TOWN OF EATON, COLORADO By____________________________________ Mayor ATTEST: ________________________________ Town Clerk ACCEPTANCE Cable TV of Eaton and Ault, Inc., by and through its authorized agent, hereby agrees to and accepts the terms and conditions of the nonexclusive franchise described in Town of Eaton Ordinance No. 360 attached hereto and made a part hereof by reference and specifically agrees to the imposition of the franchise fee by the Town of Eaton upon the gross receipts of the business as provided in Section 16 of said ordinance and further specifically agrees that such fee is in the nature of a business occupation tax imposed pursuant to C.R.S. (1973) 31-15-501 (1)(C), as amended, and not an income tax, notwithstanding the fact that the amount of the tax and the method of determining the tax are based on gross receipts of Cable TV of Eaton and Ault, Inc., its successors and assigns. Dated: __________________ CABLE TV OF EATON AND AULT, INC. By_______________________________________ |
Appendix I-III - Cable TV Franchise |