CHAPTER 5 Franchises and Communication Systems

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1 CHAPTER 5 Franchises and Communication Systems ARTICLE I - Cable Television Franchise ARTICLE II - Electric Franchise ARTICLE III - Gas Franchise ARTICLE IV - Gas Transmission Lines ARTICLE V - Telephone Occupation Tax ARTICLE VI - Location of Facilities ARTICLE I Cable Television Franchise Division 1 - Grant of Franchise Division 2 - General Public Way Use and Construction Division 3 - Standards of Service Division 4 - Regulation by Franchising Authority Division 5 - Financial and Insurance Requirements Division 6 - Enforcement and Termination of Franchise Division 7 - Miscellaneous Provisions Division 1 Grant of Franchise Sec Definitions. Sec Grant. Sec Other ordinances. Sec Level playing field. Sec Term. Sec Definitions. For the purpose of this Article, the following terms, phrases, words and their derivations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. Basic cable is the lowest priced tier of cable service that includes the retransmission of local broadcast television signals. Lochbuie, Colorado, Municipal Code Page 1

2 Cable act means Title VI of the Communications Act of 1934, as amended. Cable services means (1) the one-way transmission to subscribers of (a) video programming, or (b) other programming service; and (2) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. Cable system means the Grantee's facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within the service area. FCC means the Federal Communications Commission or the successor governmental entity thereto. Franchising Authority means the Town of Lochbuie or the lawful successor, transferee or assignee thereof. Grantee means Tele-Vue Systems, Inc., or the lawful successor, transferee or assignee thereof. Gross revenue means any revenue received by the Grantee from the operation of the cable system to provide cable services in the service area; provided, however, that such phrase shall not include: (1) any tax, fee or assessment of general applicability collected by the Grantee from subscribers for pass-through to a government agency, including, the FCC user fee; and (2) unrecovered bad debt. Person means any individual, partnership, association, joint stock company, trust, corporation or governmental entity. Public way means the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, lane, public way, drive, circle or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or thereafter held by the Franchising Authority in the service area which shall entitle the Franchising Authority and Grantee to the use thereof for the purpose of installing, operating, repairing and maintaining the cable system. Public way shall also mean any easement now or hereafter held by the Franchising Authority within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the Franchising Authority and Grantee to the use thereof for the purposes of installing and operating the Grantee's cable system over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to the cable system. Service area means the present boundaries of the Franchising Authority, and shall include any additions thereto by annexation or other legal means, subject to the exceptions in Sections and of this Article. Standard installation is defined as one hundred twenty-five (125) feet from the nearest tap to the subscriber's terminal. Subscriber means a person who lawfully receives cable service of the cable system with the Grantee's express permission. (Ord , 2000) Sec Grant. The Franchising Authority hereby grants to the Grantee a nonexclusive franchise which authorizes the Grantee to construct and operate a cable system in, along, among, upon, across, above, over, under or in any manner connected with public ways within the service area, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain or retain in, on, over, under, upon, across or along any Lochbuie, Colorado, Municipal Code Page 2

3 public way such facilities and equipment as may be necessary or appurtenant to the cable system. The Grantee and the Mayor of the Franchising Authority shall execute a franchise agreement consenting to and accepting the terms, conditions and provisions thereof which are identical to the terms, conditions and provisions of this Article; and the parties may sign as many copies of the franchise agreement for contractual purposes as necessary. (Ord , 2000) Sec Other ordinances. The Grantee agrees to comply with the terms of any lawfully adopted generally applicable local ordinance, to the extent that the provisions of the ordinance do not have the effect of limiting the benefits or expanding the obligations of the Grantee that are granted by this franchise. Neither party may unilaterally alter the material rights and obligations set forth in this franchise. The Grantee agrees that it is subject to the lawful exercise of the police power of the Franchising Authority. Nothing in this franchise shall be deemed to waive the requirements of the other codes and ordinances of general applicability enacted or hereinafter enacted by the Franchising Authority. By acceptance of this franchise and agreement to comply with the provisions herein, the Grantee does not waive and specifically retains the right to challenge any local ordinance, law, rule or regulations, including provisions of the Municipal Code, if the Grantee believes that the local requirement: (a) is not an exercise of the Franchising Authority's lawful police powers; (b) is not in compliance with state or federal laws; (c) negatively impacts the Grantee's contractual rights granted by this franchise; or (D) is unlawfully discriminatory against the Grantee. (Ord , 2000) Sec Level playing field. In the event that the Franchising Authority enters into a franchise, permit, license, authorization or other agreement of any kind with any person other than the Grantee to enter into the public ways for the purposes of constructing or operating a cable system or providing video programming services in any part of the service area, the material provisions thereof shall be reasonably comparable to those contained herein in order that one (1) operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law. The Franchising Authority shall require any person providing video programming service using public ways to obtain a franchise. (Ord , 2000) Sec Term. The franchise granted hereunder shall be for an initial term of ten (10) years, commencing January 15, 2001, and ending January 14, 2011, unless otherwise lawfully terminated in accordance with the terms of this franchise. If the Grantee upgrades the cable system to deliver no less than one hundred ten (110) video programming services to subscribers within seven (7) years from the effective date of the franchise, the term of the franchise shall be automatically extended to be fifteen (15) years, ending January 14, The franchise may be further extended by mutual agreement of the Grantee and the Franchising Authority. (Ord , 2000) Division 2 General Public Way Use and Construction Sec Right to construct. Sec Permits required for construction. Lochbuie, Colorado, Municipal Code Page 3

4 Sec Emergency permits. Sec Compliance with applicable codes. Sec GIS mapping. Sec Locates. Sec Restoration of public ways and private property. Sec Minimal interference. Sec Underground construction and use of poles. Sec Acquisition of facilities. Sec Discontinuing use or abandonment of cable system facilities. Sec Reservation of Franchising Authority's use of public way. Sec Relocation for Franchising Authority. Sec Relocation for third party. Sec Trimming of trees and shrubbery. Sec Access to open trenches. Sec Right to construct. Subject to applicable laws, regulations, rules, resolutions and ordinances of the Franchising Authority and the provisions of this franchise, the Grantee may perform all construction in the public way for any facility needed for the maintenance, upgrade or extension of the Grantee's cable system. (Ord , 2000) Sec Permits required for construction. Except in the event of an emergency, prior to doing any work in the public way or other public property, the Grantee shall apply for and obtain appropriate permits from the Franchising Authority. As part of the permitting process, the Franchising Authority may impose such conditions and regulations as are necessary for the purpose of protecting any structures in such public ways, proper restoration of such public ways and structures, protection of the public, and continuity of pedestrian or vehicular traffic. Such conditions may also include the provision of a construction schedule and maps showing the routing of the cable system to be installed in the public way. The Grantee shall pay all applicable fees for the requisite Franchising Authority permits received by the Grantee. (Ord , 2000) Sec Emergency permits. In the event that emergency repairs are necessary, the Grantee shall immediately notify the Franchising Authority of the need for such repairs. The Grantee may initiate such emergency repairs and shall apply for appropriate permits within forty-eight (48) hours after discover of the emergency. (Ord , 2000) Lochbuie, Colorado, Municipal Code Page 4

5 Sec Compliance with applicable codes. The Grantee shall comply with all applicable Franchising Authority construction codes, including, without limitation, the Uniform Building Code and other building codes, the Uniform Fire Code, the Uniform Mechanical Code, the National Electrical Code, the Electronic Industries Association Standard for Physical Location and Protection of Below-Ground Fiber Optic Cable Plant, and zoning codes and regulations. (Ord , 2000) Sec GIS mapping. The Grantee shall comply with any generally applicable ordinances, rules and regulations of the Franchising Authority regarding geographic information mapping systems for users of the public ways. (Ord , 2000) Sec Locates. (a) Prior to doing any work in the public way, the Grantee shall give appropriate notices to the Franchising Authority and to the notification association established in Section , C.R.S., as such may be amended from time to time. (b) Within forty-eight (48) hours after any Franchising Authority bureau or franchisee, licensee or permittee notifies the Grantee of a proposed public way excavation, the Grantee shall, at the Grantee's expense: (1) Mark on the surface all of its located underground facilities within the area of the proposed excavation; (2) Notify the excavator of any unlocated underground facilities in the area of the proposed excavation; or (3) Notify the excavator that the Grantee does not have any underground facilities in the vicinity of the proposed excavation. (Ord , 2000) Sec Restoration of public ways and private property. If, during the course of the Grantee's construction, operation or maintenance of the cable system, there occurs a disturbance of any public way or private property by the Grantee, the Grantee shall at its own expense replace and restore such public way or private property to a condition reasonably comparable to the condition of the public way or private property existing immediately prior to such disturbance. (Ord , 2000) Sec Minimal interference. Work in the public way, on other public property, near public property or on or near private property shall be done in a manner that causes the least interference with the rights and reasonable convenience of property owners and residents. The Grantee's cable system shall be constructed and maintained in such manner as not to interfere with sewers, water pipes or any other property of the Franchising Authority, or with any other pipes, wires, conduits, pedestals, structures or other facilities that may have been laid in the public ways by, or under, the Franchising Authority's authority. The Grantee's cable system shall be located, Lochbuie, Colorado, Municipal Code Page 5

6 erected and maintained so as not to endanger or interfere with the lives of persons, to interfere with new improvements the Franchising Authority may deem proper to make, or to unnecessarily hinder or obstruct the free use of the public ways or other public property; 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. In the event of such interference, the Franchising Authority may require the removal or relocation of the Grantee's lines, cables, equipment and other appurtenances from the property in question at the Grantee's expense. (Ord , 2000) Sec Underground construction and use of poles. (a) When required by general ordinances, resolutions, regulations or rules of the Franchising Authority or applicable state or federal law, the Grantee's cable system shall be placed underground at no expense to the Franchising Authority or subscribers unless funding is generally available for such relocation to all users of the public ways. Placing facilities underground does not preclude the use of groundmounted appurtenances. (b) Where electric, telephone and other above-ground utilities are installed underground at the time of cable system construction or upgrade, or when all such wiring is subsequently placed underground, all cable system lines shall also be placed underground with other wireline service at no expense to the Franchising Authority or subscribers unless funding is generally available for such relocation to all users of the public ways. Related cable system equipment, such as pedestals, must be placed in accordance with the Franchising Authority's applicable code requirements and rules. In areas where either electric or telephone utility wiring is 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. (c) The Grantee shall utilize existing poles and conduit wherever possible. (d) In the event the 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 the Grantee to make all needed excavations in the public ways for the purpose of placing, erecting, laying, maintaining, repairing and removing poles, supports for wires and conductors, and any other facility needed for the maintenance or extension of the Grantee's cable system. All poles of the Grantee shall be located as designated by the Franchising Authority. (e) This franchise 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 Franchising Authority or any other person. Copies of agreements for the use of poles, conduits or other utility facilities must be provided upon request by the Franchising Authority. (f) The Grantee and the Franchising Authority recognize that situations may occur in the future where the Franchising Authority may desire to place its own cable or conduit for fiber optic cable in trenches or bores opened by the Grantee. The Grantee agrees to cooperate with the Franchising Authority in any construction by the Grantee that involves trenching or boring, provided that the Franchising Authority has first notified the Grantee in some manner that it is interested in sharing the trenches or bores in the area where the Grantee's construction is occurring. The Grantee shall allow the Franchising Authority to lay its cable, conduit and fiber optic cable in the Grantee's trenches and bores, provided that the Franchising Authority 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. The Franchising Authority shall be responsible for maintaining its respective cable, conduit and fiber optic cable buried in the Grantee's trenches and bores under this paragraph. (g) If funds are available to any person using the public way for the purpose of defraying the cost of any of the foregoing, the Franchising Authority shall reimburse the Grantee in the same manner in which other persons affected by the requirement are reimbursed. If the funds are controlled by another Lochbuie, Colorado, Municipal Code Page 6

7 governmental entity, the Franchising Authority shall make application for such funds on behalf of the Grantee. (Ord , 2000) Sec Acquisition of facilities. Upon the Grantee's acquisition of facilities in any public way, or upon the addition to the Franchising Authority of any area in which the Grantee owns or operates any facility, the Grantee shall, at the Franchising Authority's request, submit to the Franchising Authority a statement describing all facilities involved, whether authorized by franchise, permit, license or other prior right, and specifying the location of all such facilities to the extent the Grantee has possession of such information. Such facilities shall immediately be subject to the terms of this franchise. (Ord , 2000) Sec Discontinuing use or abandonment of cable system facilities. Whenever the Grantee intends to discontinue using any facility within the public ways, the Grantee shall submit for the Franchising Authority's approval a complete description of the facility and the date on which the Grantee intends to discontinue using the facility. The Grantee may remove the facility or request that the Franchising Authority permit it to remain in place. Notwithstanding the Grantee's request that any such facility remain in place, the Franchising Authority may require the Grantee to remove the facility from the public way or modify the facility to protect the public health, welfare or safety. The Franchising Authority may require the Grantee to perform a combination of modification and removal of the facility. The Grantee shall complete such removal or modification in accordance with a schedule set by the Franchising Authority. Until such time as the Grantee removes or modifies the facility as directed by the Franchising Authority, or until the rights to and responsibility for the facility are accepted by another person having authority to construct and maintain such facility, the Grantee shall be responsible for all necessary repairs and relocations of the facility, as well as maintenance of the public way, in the same manner and degree as if the facility were in active use, and the Grantee shall retain all liability for such facility. If the Grantee abandons its facilities, the Franchising Authority may choose to use such facilities for any purpose. (Ord , 2000) Sec Reservation of Franchising Authority's use of public way. Nothing in this franchise shall prevent the Franchising Authority or public utilities owned, maintained or operated by public entities other than the Franchising Authority from constructing sewers, grading, paving, repairing or altering any public way; laying down, repairing or removing water mains; or constructing or establishing any other 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 the Grantee's cable system. (Ord , 2000) Sec Relocation for Franchising Authority. Upon its receipt of reasonable advance written notice, to be not less than five (5) business days, the Grantee shall protect, support, raise, lower, temporarily disconnect, relocate in or remove from the public way, any property of the Grantee when lawfully required by the Franchising Authority by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of Lochbuie, Colorado, Municipal Code Page 7

8 street grade, installation of sewers, drains, gas or water pipes, or any other type of public structures or improvements which are not used to compete with the Grantee's services. The Grantee shall relocate its property at its own expense unless funding is generally available to users of the public ways or the Grantee is otherwise entitled to reimbursement. The Grantee shall in all cases have the right of abandonment of its property. (Ord , 2000) Sec Relocation for third party. The Grantee shall, on the request of any person holding a lawful permit issued by the Franchising Authority, protect, support, raise, lower, temporarily disconnect, relocate in or remove from the public way as necessary any property of the Grantee, provided that: (a) the expense of such is paid by said person benefiting from the relocation, including, if required by the Grantee, making such payment in advance; and (b) the Grantee is given reasonable advance written notice to prepare for such changes. For purposes of this subsection, reasonable advance written notice shall be no less than ten (10) business days in the event of a temporary relocation and no less ninety (90) days for a permanent relocation. (Ord , 2000) Sec Trimming of trees and shrubbery. The Grantee shall have the authority to trim trees or other natural growth located on the public ways in order to access and maintain the cable system. The Grantee shall pay the Franchising Authority or property owner for any damage caused by Grantee or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees or shrubs damaged as a result of any construction or maintenance of the cable system undertaken by the Grantee. (Ord , 2000) Sec Access to open trenches. The Franchising Authority agrees to include the Grantee in the platting process for any new subdivision. At a minimum, the Franchising Authority agrees to require as a condition of issuing a permit for open trenching to any utility or developer that: (a) the utility or developer give the Grantee at least ten (10) days' advance written notice of the availability of the open trench; and (b) the utility or developer provide the Grantee with reasonable access to the open trench. (Ord , 2000) Division 3 Standards of Service Sec Required extensions of cable system. Sec Annexed areas. Sec Subscriber charges for extensions of cable system. Sec Cable service to public buildings. Sec Emergency use. Sec Broad programming categories. Sec Public, educational and governmental access. Lochbuie, Colorado, Municipal Code Page 8

9 Sec Subscriber standards. Sec Technical requirements. Sec Required extensions of cable system. The Grantee agrees to provide cable service to all residences in the service area subject to the density requirements specified in this Section. Whenever the Grantee receives a request for cable service from a potential subscriber in a contiguous unserved area where there are at least ten (10) residences within one thousand three hundred twenty (1,320) cable-bearing strand feet (one-quarter cable mile) from the portion of the Grantee's trunk or distribution cable which is to be extended, it shall extend its cable system to such subscribers at no cost to said subscribers for the cable system extension, other than the published standard/nonstandard installation fees charged to all subscribers. Notwithstanding the foregoing, the Grantee shall have the right, but not the obligation, to extend the cable system into any portion of the service area where another operator is providing cable service, into any area which is financially or technically infeasible due to extraordinary circumstances, such as a runway or freeway crossing. (Ord , 2000) Sec Annexed areas. (a) In the event that the Franchising Authority annexes territory that is contiguous to the current franchise area and not being provided cable service by any provider, the Grantee agrees that it will extend its cable system into the newly annexed territory under the terms of Section of this franchise. (b) In the event the Franchising Authority annexes contiguous territory that receives cable service from another provider or is not contiguous to the current franchise area, the Grantee shall have the right, but not the requirement, to extend its cable system to the annexed area. (c) In the event that the Franchising Authority annexes territory that is served by the Grantee under an agreement with the former local franchising authority, the Grantee shall remain subject to that agreement for the annexed area. (d) In the event that the Franchising Authority annexes territory that is currently served by the Grantee but is not covered by an existing agreement, the newly annexed area will become subject to this franchise. If the Grantee does not offer the same cable service in the annexed area as provided within the current franchise area, the Grantee shall estimate the cost to make such adjustments to the cable system as is necessary to provide the same cable service to the annexed area. If requested by the Grantee, the Grantee and the Franchising Authority shall discuss the cost of such adjustment and potential impact on subscriber rates within one hundred twenty (120) days of the Grantee's receipt of notification of the annexation. Unless waived by the Franchising Authority, the Grantee shall make the required adjustments to the cable system and billing system to provide the same cable service to the annexed area within two (2) years of receipt of the annexation notification. (e) If the Grantee finds it convenient for any of the annexed territory to be served by an affiliate of the Grantee versus the Grantee, it is understood by the parties that the rights, benefits and obligations of this franchise shall apply to such affiliate for the annexed area, without the need for transfer approval of the Franchising Authority. (Ord , 2000) Lochbuie, Colorado, Municipal Code Page 9

10 Sec Subscriber charges for extensions of cable system. No subscriber shall be refused service arbitrarily. However, if an area does not meet the density requirements of Section above, the Grantee shall only be required to extend the cable system to subscribers in that area if the subscribers are willing to share the capital costs of extending the cable system. Specifically, the Grantee shall contribute a capital amount equal to the construction cost per mile, multiplied by a fraction whose numerator equals the actual number of residences per one thousand three hundred twenty (1,320) cable-bearing strand feet from the Grantee's trunk or distribution cable, and whose denominator equals ten (10). Subscribers who request service hereunder shall bear the remaining cost to extend the cable system on a pro rata basis. The Grantee may require that payment of the capital contribution in aid of construction borne by such potential subscribers be paid in advance. The subscribers shall also be responsible for any standard/nonstandard installation charges to extend the cable system from the tap to the residence. (Ord , 2000) Sec Cable service to public buildings. The Grantee, upon request, shall provide without charge an installation and one (1) outlet of basic cable to those administrative buildings owned and occupied by the Franchise Authority, fire stations, police stations, public libraries and K-12 public schools that are located within one hundred fifty (150) feet of the cable system. The cable service provided shall not be distributed beyond the originally installed outlet without authorization from the Grantee. The cable service provided shall not be used for commercial purposes, and such outlets shall not be located in areas open to the public. The Franchising Authority 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. The Franchising Authority shall hold the Grantee harmless from any and all liability or claims arising out of the provision and use of cable service required by this Section. The Grantee shall not be required to provide an outlet to such buildings that are more than one hundred fifty (150) feet from the cable system, unless the Franchising Authority or building owner/occupant agrees to pay the incremental cost of any necessary cable system extension and/or excess installation charges. If additional outlets of basic cable are provided to such buildings, the building owner/occupant shall pay the usual installation and service fees associated therewith. (Ord , 2000) Sec Emergency use. If the Grantee provides an Emergency Alert System ("EAS") that is available for use by the Franchising Authority, the Franchising Authority shall permit only appropriately trained and authorized persons to operate the EAS equipment and shall take reasonable precautions to prevent any use of the Grantee's cable system in any manner that results in inappropriate use thereof, or any loss or damage to the cable system. The Grantee shall provide training to the Franchising Authority's personnel upon written request. Except to the extent expressly prohibited by law, the Franchising Authority shall hold the Grantee, its employees, officers and assigns harmless from any claims arising out of use of the EAS, including, but not limited to, reasonable attorneys' fees and costs. (Ord , 2000) Sec Broad programming categories. The Grantee shall provide or enable the provision of at least the following initial broad categories of programming to the extent such categories are reasonably available: Sports, Entertainment, Movies, Lochbuie, Colorado, Municipal Code Page 10

11 Information and News, Children and Family Oriented, Educational, Government Affairs, Weather, Science and Documentary, and Arts, Cultural and Performing Arts. (Ord , 2000) Sec Public, educational and governmental access. (a) Channel capacity and use. Within one hundred twenty (120) days of receipt of the Franchising Authority's written request, the Grantee, at no cost to the Franchising Authority, shall provide one (1) channel for noncommercial public, educational and/or governmental access ("PEG") programming pursuant to the provisions of Section 611 of the Cable Act, to be promoted and administered by the Franchising Authority or its designee. (b) Relocation of PEG channel. The Grantee shall provide the Franchising Authority with a minimum of sixty (60) days' notice, and use its best efforts to provide one hundred twenty (120) days' notice, prior to the time the PEG channel designation is changed. In addition, the Grantee shall pay to the Franchising Authority an amount equal to the Franchising Authority's costs in remarketing the location of the PEG channel and managing the relocation administratively and technologically, up to a maximum of fifty cents ($.50) per subscriber. Any such amounts paid by the Grantee may be added, at the Grantee's discretion and in accordance with the applicable FCC regulations, to the price of cable services and collected from such subscribers as an external cost, as such term is used in 47 C.F.R , if the Grantee's decision to relocate the PEG channel is required by federal, state or local law. The Grantee, at the Grantee's expense, will place the Franchising Authority's notices of the channel change on its regular monthly billings, upon the Franchising Authority's request. Any new PEG channel designation provided shall be in full compliance with FCC signal quality and proof of performance standards. (c) PEG channel on basic cable. The PEG channel provided to subscribers under this Section shall be included by the Grantee, without limitation, as a part of basic cable. (d) Change in technology. In the event the Grantee makes any change in the cable system and related equipment and facilities or in the Grantee's signal delivery technology, which directly or indirectly substantially affects the signal quality or transmission of the PEG channel provided pursuant to this Section, the Grantee shall at its own expense take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment, and full training of the Franchising Authority's personnel to ensure that the capabilities of the PEG channel are not diminished or adversely affected by such change. (Ord , 2000) Sec Subscriber standards. (a) Customer service standards. The Grantee shall comply with Section of the FCC's Rules and Regulations, and as they may be amended. (b) Subscriber contracts. The Grantee shall not enter into a contract with any subscriber which is in any way inconsistent with the terms of this franchise. (c) Subscriber privacy. The Grantee will comply with privacy rights of subscribers in accordance with federal, state and local law. (Ord , 4.9, 4.10, 2000) Lochbuie, Colorado, Municipal Code Page 11

12 Sec Technical requirements. (a) The Grantee shall maintain its cable system in accordance with good work practices and all applicable FCC regulations. (b) The Grantee, at its own expense, shall repair, renew, change and improve its cable system from time to time as may be necessary to accomplish these purposes. (Ord , 2000) Division 4 Regulation by Franchising Authority Sec Franchise fee. Sec Rates and charges. Sec Rate discrimination. Sec Filing of rates and charges. Sec Renewal of franchise. Sec Transfer of franchise. Sec Publication costs. Sec Open records. Sec Confidentiality. Sec Records required. Sec Copies of federal and state reports. Sec False statements. Sec Franchise fee. (a) The Grantee shall pay to the Franchising Authority a franchise fee of five percent (5%) of annual gross revenue, as defined in Section of this Article. In accordance with the Cable Act, the twelvemonth period applicable under the franchise for the computation of the franchise fee shall be a calendar year. The franchise fee payment shall be due quarterly and payable within forty-five (45) days after the close of the preceding calendar quarter. Each payment shall be accompanied by a brief report prepared by a representative of the Grantee showing the basis for computation. (b) No acceptance of any payment of franchise fees by the Franchising Authority can be construed as an accord by the Franchising Authority that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments of franchise fees be construed as a release of any claim the Franchising Authority may have for further or additional sums payable or for the performance of any other obligation of the Grantee. (c) The parties acknowledge that, at present, applicable federal law limits the Franchising Authority to collection of a maximum permissible franchise fee of five percent (5%) of gross revenues. In the event that at any time during the duration of this franchise, this maximum permissible franchise fee is increased, the Franchising Authority may unilaterally amend this franchise up to a maximum of the new federal limit or seven percent (7%), whichever is less, after holding a public hearing on the issue. The increase in franchise fees will become effective sixty (60) days after the Grantee receives written notice from the Franchising Authority of the change. Lochbuie, Colorado, Municipal Code Page 12

13 (d) The period of limitation for recovery of any franchise fee payable hereunder shall be three (3) years from the date on which payment by the Grantee is due. (e) On an annual basis, upon thirty (30) days' prior written notice, the Franchising Authority shall have a right to conduct, at its own expense, an independent audit of the Grantee's records reasonably related to the administration or enforcement of this franchise in accordance with generally accepted accounting principles. If the audit shows that franchise fees have been underpaid by five percent (5%) or more, the Grantee shall pay the total cost of the audit. (f) Payment of the franchise fee under this franchise shall not exempt the Grantee from the payment of any other license fee, tax or charge on the business, occupation, property or income of the Grantee that may be imposed by the Franchising Authority, except as may otherwise be provided in the ordinance imposing such other license fee, tax or charge. Any other license fees, taxes or charges shall be of general applicability in nature and shall not be levied against the Grantee solely because of its status as a cable operator as defined in the Cable Act. (Ord , 2000) Sec Rates and charges. The Franchising Authority may regulate rates for the provision of basic cable and equipment as expressly permitted by federal or state law. (Ord , 2000) Sec Rate discrimination. All Grantee rates and charges shall be published (in the form of a publicly available rate card) and nondiscriminatory as to all persons of similar classes under similar circumstances and conditions. The Grantee shall apply its rates in accordance with governing law with similar rates and charges for all subscribers receiving similar cable services, without regard to race, color, ethnic or national origin, religion, age gender, sexual orientation, marital, military or economic status, physical or mental disability or geographic location in the Grantee's franchise. Nothing herein shall be construed to prohibit or require: (1) The temporary reduction or waiving of rates or charges in conjunction with valid promotional campaigns; (2) The offering of reasonable discounts to senior citizens or economically disadvantaged citizens; or (3) The offering of rate discounts for cable services. (Ord , 2000) Sec Filing of rates and charges. (a) Upon advance written request of the Franchising Authority, the Grantee shall provide the Franchising Authority with a complete schedule of applicable rates and charges for cable services provided under this franchise. Nothing in this Section shall be construed to require the Grantee to file rates and charges under temporary reductions or waivers of rates and charges in conjunction with promotional campaigns. As used in this Section, no rate or charge shall be considered temporary if subscribers have the ability over a period greater than four (4) consecutive months (or such other period as may be approved by the Franchise Authority) to purchase cable services at such rate or charge. Lochbuie, Colorado, Municipal Code Page 13

14 (b) The Grantee, upon advance request of the Franchise Authority, shall provide a complete schedule of current rates and charges for any and all leased access channels, or portions of such channels, provided by the Grantee. The schedule shall include a description of the price, terms and conditions established by the Grantee for leased access channels. (Ord , 2000) Sec Renewal of franchise. (a) The Franchising Authority and Grantee agree that any proceedings undertaken by the Franchising Authority that relate to the renewal of the Grantee's franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act. (b) In addition to the procedures set forth in said Section 626(as), the Franchising Authority agrees to notify the Grantee of all of its assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of the Grantee under the then-current franchise term. The Franchising Authority further agrees that such assessments shall be provided to the Grantee promptly so that the Grantee has adequate time to submit a proposal under Section 626(b) of the Cable Act and complete renewal of the franchise prior to expiration of its term. (c) Notwithstanding anything to the contrary set forth in this Section, the Grantee and Franchising Authority agree that at any time during the term of the then-current franchise, while affording the public appropriate notice and opportunity to comment, the Franchising Authority and Grantee may agree to undertake and finalize informal negotiations regarding renewal of the then-current franchise and the Franchising Authority may grant a renewal thereof. (d) The Grantee and Franchising Authority consider the terms set forth in this Section to be consistent with the express provisions of Section 626 of the Cable Act. (Ord , 2000) Sec Transfer of franchise. The Grantee's right, title or interest in the franchise shall not be sold, transferred, assigned or otherwise encumbered, other than to an entity controlling, controlled by or under common control with the Grantee, without the prior consent of the Franchising Authority, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation or by assignment of any rights, title or interest of the Grantee in the franchise or cable system in order to secure indebtedness. Within thirty (30) days of receiving a request for transfer, the Franchising Authority shall notify the Grantee in writing of any additional information it reasonably requires to determine the legal, financial and technical qualifications of the transferee. If the Franchising Authority has not taken action on the Grantee's request for transfer within one hundred twenty (120) days after receiving such request, consent by the Franchising Authority shall be deemed given. (Ord , 2000) Sec Publication costs. The Grantee shall pay the reasonable cost of any publication of this franchise and any amendments thereto, as such publication is reasonably required by the Franchising Authority or applicable law. (Ord , 2000) Lochbuie, Colorado, Municipal Code Page 14

15 Sec Open records. The Grantee shall manage its operations in accordance with a policy of keeping its documents and records reasonably accessible to the Franchising Authority. The Franchising Authority shall have access to and the right to inspect books and records of the Grantee which reasonably relate to the administration or enforcement of the terms of this franchise. If the requested books and records are too voluminous, or for security reasons cannot be copied or removed, the Grantee may request, in writing within ten (10) days, that the Franchising Authority inspect them at the Grantee's local offices. (Ord , 2000) Sec Confidentiality. The Franchising Authority agrees to treat as confidential any books and/or records that constitute proprietary or confidential information under federal or state law, to the extent the Grantee makes the Franchising Authority aware of such confidentiality. The Grantee shall be responsible for clearly and conspicuously stamping the word "Confidential" on each page that contains confidential or proprietary information. If the Franchising Authority is required under any open records act to release any such confidential books and records in the course of enforcing this franchise, or for any other reason, it shall advise the Grantee in advance so that the Grantee may take appropriate steps to protect its interests. If the Franchising Authority receives a demand from any person for disclosure of any information designated by the Grantee as confidential, the Franchising Authority shall, so far as consistent with applicable law, advise the Grantee and provide the Grantee with a copy of any written request by the party demanding access to such information within a reasonable time. Until otherwise ordered by a court or agency of competent jurisdiction, the Franchising Authority agrees that, to the extent permitted by state and federal law, it shall deny access to any of the Grantee's books and records marked confidential as set forth above to any person. (Ord , 2000) Sec Records required. The Grantee shall at all times maintain: (1) A full and complete set of "as built" maps showing the routing of the cable system in the service area, exclusive of subscriber drops and cable provided in subscribers' homes; (2) Current subscriber records and information; (3) A summary of the prior year's activities in the service area, including cable services added or dropped, channel changes, number of subscribers added or terminated, all construction activity, and total homes passed; (4) A list of the Grantee's cable services, rates and channel line-ups; and (5) A log of service calls. (Ord , 2000) Sec Copies of federal and state reports. Within thirty (30) days after the receipt of a written request from the Franchising Authority, the Grantee shall submit to the Franchising Authority copies of all pleadings, applications, notifications, communications and documents of any kind submitted by the Grantee or its parent corporation to, any federal, state or local Lochbuie, Colorado, Municipal Code Page 15

16 courts, regulatory agencies and other government bodies if such documents specifically relate to the operation of the Grantee's cable system within the service area. (Ord , 2000) Sec False statements. Any intentional false or misleading statement or representation in any report required by this franchise may be deemed a material breach of this franchise and may subject the Grantee to all remedies, legal or equitable, which are available to the Franchise Authority under this franchise or otherwise. (Ord , 2000) Division 5 Financial and Insurance Requirements Sec Indemnification. Sec Insurance. Sec Performance bond. Sec Indemnification. (a) General indemnification. The Grantee shall indemnify, defend and hold the Franchising Authority, its officers, agents and employees, harmless from any action or claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and attorney fees or expenses, arising from any casualty or accident to persons or property, including, without limitation, copyright infringement and 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 franchise, by or for the Grantee, its agents or employees, or by reason of any neglect or omission of the Grantee. The Grantee shall consult and cooperate with the Franchising Authority while conducting its defense of the Franchising Authority. (b) Additional circumstances. The Grantee shall also indemnify, defend and hold the Franchising Authority harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and attorney fees or expenses in any way arising out of: (1) The lawful actions of the Franchising Authority in granting this franchise to the extent such actions are consistent with this franchise and applicable law; (2) Damages arising out of any failure by the Grantee to secure consents from the owners, authorized distributors or licensees or licensers of programs to be delivered by the cable system, whether or not any act or omission complained of is authorized, allowed or prohibited by this franchise. This provision shall not apply to PEG programming. (c) Procedures and defense. If a claim or action arises, the Franchising Authority or any other indemnified party shall notify the Grantee of the need for indemnification within seventy-two (72) hours after receipt of notice of any such claim or action and shall completely tender the defense of the claim to the Grantee. If the Franchising Authority should reasonably believe that its interests cannot be adequately defended by the Grantee's insurer, it may separately procure its own representation, at its own expense; however, control of any action, court filings or settlement discussions shall remain with the Grantee, its insurer or counsel. Lochbuie, Colorado, Municipal Code Page 16

17 (d) Nonwaiver. The fact that the Grantee carries out any activities under this franchise through independent contractors shall not constitute an avoidance of or defense to the Grantee's duty of defense and indemnification under this Section. (Ord , 2000) Sec Insurance. (a) The Grantee shall maintain commercial general liability insurance that protects the Grantee and the Franchising Authority, its officers, agents and employees from any and all claims for damages or personal injury, including death, demands, actions and suits brought against any of them arising from operations under this franchise or in connection therewith, in accordance with the Subsections below. (b) The insurance shall provide coverage at all times for not less than one million dollars ($1,000,000.00) in combined single limit for bodily injury and property damage. The insurance company providing insurance pursuant to this Section shall be licensed in the State of Colorado and shall provide insurance pursuant to this Section comparable to general liability insurance of commercial quality. (c) The insurance shall not be canceled 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 Franchising Authority. If the insurance is canceled or materially altered so as to be out of compliance with the requirements of this Section within the term of this franchise, the Grantee shall provide a replacement policy. The Grantee agrees to maintain continuous uninterrupted insurance coverage in the amounts required, for the duration of this franchise. (d) The Grantee shall maintain on file with the Franchising Authority a certificate of insurance, naming the Franchising Authority as additional insured, certifying the coverage required above. (e) In the alternative to providing a certificate of insurance to the Franchising Authority certifying insurance coverage as required above, the Grantee's self-insurance shall provide the same amount and level of protection for the Grantee and the Franchising Authority, its officers, agents and employees as otherwise required under this Section. The adequacy of the self-insurance shall be subject to the periodic review and approval of the Franchising Authority. (Ord , 2000) Sec Performance bond. The Franchising Authority may require a performance bond when the Grantee has over one thousand (1,000) subscribers within the service area. Any required performance bond shall not exceed ten thousand dollars ($10,000.00). (Ord , 2000) Division 6 Enforcement and Termination of Franchise Sec Notice of violation. Sec Grantee's right to cure or respond. Sec Public hearing. Sec Enforcement. Sec Revocation. Sec Force majeure. Lochbuie, Colorado, Municipal Code Page 17