HomeMy WebLinkAbout05705ORDINANCE NO. 5705
AN ORDINANCE GRANTING TO TCI CABLEVISION OF
COLORADO, INC. A NONEXCLUSIVE FRANCHISE AND RIGHT
TO CONSTRUCT, INSTALL, OPERATE, PROVIDE AND
MAINTAIN A CABLE TELEVISION SYSTEM WITHIN THE CITY
AND A NON - EXCLUSIVE RIGHT TO MAKE REASONABLE USE OF
STREETS, ROADS, ALLEYS, BRIDGES, VIADUCTS, PUBLIC
EASEMENTS AND OTHER PUBLIC PLACES WITHIN THE CITY
AS MAY BE NECESSARY TO CARRY OUT THE TERMS OF THIS
ORDINANCE
BE IT ORDAINED BY THE PEOPLE OF PUEBLO, that:
CABLE TELEVISION FRANCHISE
TABLE OF CONTENTS
Page
ARTICLE
I
PURPOSES ..............................
1
ARTICLE
II
DEFINITIONS ...........................
2
ARTICLE
III
GRANT OF FRANCHISE ....................
6
ARTICLE
IV
SCOPE OF FRANCHISE ....................
8
ARTICLE
V
RIGHT OF CITY TO REGULATE .............
9
ARTICLE
VI
FRANCHISE FEES ........................
9
1 .
Purpose
and Amount of Fee .....................
9
2.
Period
of Limitation ..........................
10
3.
Contract
Obligation ...........................
10
4 .
Refund
for Overpayment ........................
11
5.
Interest
on Delinquent Payments ...............
11
ARTICLE
VII
GROSS REVENUE CALCULATIONS............
11
ARTICLE
VIII
CERTIFICATION OF FRANCHISE
FEE PAYMENTS ..........................
12
ARTICLE
IX
AUDITING AND FINANCIAL RECORDS........
12
ARTICLE
X
USE OF STREETS LIMITED ................
13
ARTICLE
XI
USE OF UTILITY POLES ..................
13
ARTICLE
XII
NOTICES ...............................
14
ARTICLE
XIII
AUTHORITY .............................
14
ARTICLE
XIV
POLICE POWERS NOT LIMITED .............
15
ARTICLE
XV
COMMUNICATIONS WITH REGULATORY
AGENCIES ..............................
15
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Page
ARTICLE
XVI
TERM OF FRANCHISE .....................
16
ARTICLE
XVII
RENEGOTIATION OF FRANCHISE TERMS
FOR PURPOSE OF AMENDMENT ..............
16
ARTICLE
XXIII
AVAILABILITY OF SERVICE ...............
16
ARTICLE
XIX
SERVICE OFFERINGS .....................
18
ARTICLE
XX
OBSCENE AND UNPROTECTED BROADCASTS....
19
ARTICLE
XXI
SYSTEM CAPABILITY AND STANDARDS.......
19
1.
General
Capability ............................
19
2.
Emergency Override Capability .................
20
3.
Plans and Specifications ......................
21
4.
Technical Standards ...........................
21
5.
Service
to the Hearing Impaired ...............
23
ARTICLE
XXII
PUBLIC, EDUCATIONAL AND GOVERNMENTAL
ACCESS . ...............................
23
ARTICLE
XXIII
AVAILABILITY OF ACCESS FACILITIES.....
26
ARTICLE
XXIV
SUPPORT FOR USE OF ACCESS .............
27
ARTICLE
XXV
LOCAL OFFICE AND SERVICE ..............
27
ARTICLE
XXVI
COMPLAINT PROCEDURE ...................
27
ARTICLE
XXVII
FREE DISTRIBUTION SERVICES............
28
ARTICLE
XXVIII
VIOLATIONS BY FRANCHISEE ..............
29
ARTICLE
XXIX
USE OF STREETS - MINIMUM INTERFERENCE...
30
ARTICLE
XXX
PROVISION OF SERVICE, LOCATION,
CONSTRUCTION, AND MAINTENANCE OF
FACILITIES ............................
31
1.
City Review of Construction and Design........
31
2.
Excavation and Construction ...................
31
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Page
3.
Installation and Maintenance of
Franchisee Facilities .........................
32
4.
Obligations Regarding Facilities ..............
33
5.
Compliance with City Requirements .............
33
6.
Noninterference with Public Works .............
34
7 .
City Regulation ...............................
34
ARTICLE
XXXI
PERMITS AND APPROVALS .................
35
ARTICLE
XXXII
RESTORATION OF STREETS AND PRIVATE
PROPERTY ..............................
36
ARTICLE
XXXIII
ERECTION OF POLES .....................
37
ARTICLE
XXXIV
UNDERGROUNDING ........................
38
ARTICLE
XXXV
RELOCATION ............................
39
ARTICLE
XXXVI
TREE TRIMMING .........................
40
ARTICLE
XXXVII
MOVEMENT OF BUILDINGS .................
40
ARTICLE
XXXVIII
REMOVAL ...............................
41
ARTICLE
XXXIX
ENFORCEMENT ...........................
43
ARTICLE
XL
SYSTEM OWNERSHIP ......................
44
ARTICLE
XLI
NONDISCRIMINATORY SERVICES............
45
ARTICLE
XLII
SUBSCRIBER ANTENNAS ...................
45
ARTICLE
XLIII
ANTICOMPETITIVE PRACTICES .............
45
ARTICLE
XLIV
MAINTENANCE AND REPAIR ................
46
ARTICLE
XLV
PRIVACY ...............................
46
ARTICLE
XLVI
AFFIRMATIVE ACTION ....................
50
ARTICLE
XLVII
GUARANTEE AND INSURANCE ...............
51
ARTICLE
XLVIII
INDEMNIFICATION BY FRANCHISEE.........
52
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Page
ARTICLE
XLIX TRANSFER AND TERMINATION ..............
53
1 .
Transfer of System ............................
53
2.
Transfer of Franchise .........................
53
3 .
Transfer Fee ... ...............................
54
4 .
Void Transfers . ...............................
54
5.
Termination of Franchise ......................
54
6.
Commencement of Termination Proceedings.......
55
7 .
Conduct of Hearing ............................
56
8.
Alternative Remedies ..........................
56
9 .
Nonenforcement . ...............................
57
10.
Purchase of System by City ....................
57
ARTICLE
L MISCELLANEOUS PROVISIONS ..............
58
1.
Use of Franchisee Right -of- Way ................
58
2.
Joint Use of Franchisee Facilities............
58
3.
Reimbursement of Election Costs ...............
59
4 .
Severability ... ...............................
59
5 .
Filing ....... ...............................
60
6.
Supersedes Previous Franchises ................
60
7.
Effective Date . ...............................
60
8.
Franchisee Approval ...........................
60
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CABLE TELEVISION FRANCHISE
ARTICLE I
DiTDDnQG'Q
The purposes of this Franchise include, but are not
limited to, the promotion of the general welfare of the citizens
of the City of Pueblo by:
1. Conferring a right for the nonexclusive provision
of Cable Television Services within the City by TCI Cablevision
of Colorado, Inc. ( "Franchisee ");
2. Establishing through the Franchise a regulatory
framework for the administration of the Franchise in order to
insure that the potential recreational, technical, educational,
social, economic and other advantages of cable television will in
fact inure to the benefit of the City and its citizens;
3. To provide through the Franchise for the equal and
nondiscriminatory provision of cable television services by
Franchisee throughout the City;
4. To insure that Franchisee has the requisite legal,
financial, and technical qualifications to construct, operate,
and maintain the Cable Television System;
5. To regulate the operations of Franchisee for the
purposes of protecting and promoting the public health, peace,
safety, and convenience.
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The provisions of this Franchise shall not be deemed to
confer any right upon Franchisee except as expressly provided
herein.
ARTICLE II
DEFINITIONS
As used in this Franchise, the following terms, phrases,
and words shall be ascribed the following meanings, unless the
context indicates otherwise. The word "shall" is mandatory, and
the word "may" is permissive. Words not defined herein shall be
given their common and ordinary meanings, consistent with the
context in which such words are used and the purposes of this
Franchise.
1. "Basic Cable Service" shall mean any service tier
which includes the retransmission of local television broadcast
signals.
2. "City" shall mean the municipal corporation
designated as the City of Pueblo, a home rule city of the State
of Colorado and including territory that currently is, or may in
the future be, included within the boundaries of the City of
Pueblo.
3. "Cable Service" or "Cable Television Service" shall
mean (a) the one -way transmission to subscribers of (i) video
programming, or (ii) other programming service, and
(b) subscriber interaction, if any, which is required for the
selection of such video programming or other programming service.
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4. "Cable Television System" shall mean a facility
consisting of a set of closed transmission paths and associated
signal generation, reception, and control equipment or other
communications equipment that is designed to provide Cable
Service.
5. "CCPA" or "Cable Act" shall mean the Cable
Communications Policy Act of 1984, as amended (47 U.S.C. 521, et
seq.
6. "Council" or "City Council" means the legislative
body of the City of Pueblo.
7. "Facilities" means all physical components of the
Franchisee which are located within the City and are reasonably
necessary, useful or convenient to provide cable television
services within the territorial boundaries of the City.
8. "FCC" shall mean Federal Communications Commission
or successor governmental entity.
9. "Franchise Area" shall mean all areas for which the
Franchisee is authorized to serve within the municipal limits of
the City of Pueblo, as said boundaries currently exist, and in
the future may be increased or decreased.
10. "Gross Revenues" shall mean all cash, credits,
property of any kind or nature or other consideration received
directly or indirectly by the Franchisee, its affiliates,
subsidiaries, parents, and any other person or entity in which
Franchisee has a financial interest or which has a financial
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interest in the Franchisee, arising from or attributable to
operation of the Cable Television System in the City of Pueblo
and any of the facilities used in the operation thereof. "Gross
Revenues" shall include, valued at market price levels, the value
of any goods, services, or other remuneration in nonmonetary form
received by the Franchisee or others in consideration for
performance by the Franchisee or others described above of any
advertising or other service in connection with the Cable
Television System.
"Gross Revenues" shall not include (1) any taxes on
services furnished by the Franchisee which are imposed directly
upon any subscriber or user by the United States, State of
Colorado or local agency and collected by the Franchisee on
behalf of the government; (2) revenue received directly from the
Franchisee by an affiliate, subsidiary or parent of the
Franchisee or any other person or entity in which the Franchisee
has a financial interest or which has a financial interest in the
Franchisee, when the revenue received has already been included
in reported Gross Revenues under this Franchise; and (3) revenue
received by such an affiliate, subsidiary, parent, person or
entity when the revenue received is from the sale of national
advertising shown on programs distributed on a national basis by
the affiliate, subsidiary, parent, person or entity.
11. "Guarantor" shall mean Telecommunications, Inc., a
Delaware corporation.
12. "Leased Access" shall mean the use on a fee -for-
service basis of the Cable Television System by business
enterprises (whether profit, nonprofit or governmental) to render
services to the citizens of the City.
13. "Franchisee" shall mean TCI Cablevision of
Colorado, Inc., its successors and assigns operating in the City
of Pueblo.
14. "Premium Service" means a single stand alone
service for which a separate charge is made.
15. "Public Easements" means easements available for
use under this Franchise as permitted by the City.
16. "Public Places" means alleys, viaducts, bridges,
roads, lanes, streets and public easements in the City.
17. "Service Area" shall mean the geographic area
within the territorial boundaries of the City of Pueblo, as said
boundaries currently exist, and in the future may be increased or
decreased.
18. "Streets" shall mean the surface of and the space
above and below any street, road, highway, freeway, avenue,
boulevard, road, lane, utility right -of -way or any other easement
which now or hereafter exists for the provision of public or
quasi - public services to residential or commercial properties,
and in which the City is expressly or impliedly authorized or
empowered to permit use for the installation and operation of a
Cable Television System. As used in this Franchise, the word
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"street" or "streets" shall include public easements and public
places.
19. "Subscriber" shall mean a lawful recipient of
service from the Cable Television System.
20. "System" shall mean the Cable Television System.
21. "User" shall mean a party utilizing one or more
channels of the Cable Television System for purposes of
production or transmission of material to subscribers, as
contrasted with receipt thereof in a subscriber capacity.
22. "Dwelling Units" shall mean residential living
facilities as distinguished from temporary lodging facilities
such as hotel and motel rooms and dormitories, and includes, but
is not limited to, single family residential units and individual
apartments, condominium units, mobile homes within mobile home
parks, and other multiple family residential units.
ARTICLE III
GRANT OF FRANCHISE
1. The City hereby grants to the Franchisee, for the
period specified in, and subject to the conditions, terms and
provisions contained in this Franchise, a nonexclusive right to
construct, operate, provide, repair and maintain a Cable
Television System within the City, to and for the benefit of the
City and residents of the City. Subject to the conditions, terms
and provisions contained in this Franchise, the City also hereby
grants to the Franchisee a nonexclusive right to acquire,
construct, install, locate, maintain, operate and extend into,
within and through the City all facilities reasonably necessary
to the operation, construction, repair and maintenance of a Cable
Television System and a nonexclusive right to make reasonable use
of the streets, public easements and other public places as may
be necessary to carry out the terms of this Franchise, subject to
the City's prior right to usage for municipal purposes and
subject to City's exercise of lawful police powers, including,
but not limited to, zoning, subdivision, permit and building code
requirements. These rights shall extend to all areas of the City
as it is now constituted, and to additional areas as the City may
increase in size by annexation or otherwise.
2. Exclusions.
a. The right to use and occupy said public
streets, alleys, viaducts, bridges, roads and public places for
the purposes set forth herein is not, and shall not be deemed to
be, an exclusive franchise, and the City reserves the right to
make or grant a similar use of public streets and other public
places to any other person, firm or corporation.
b. The City retains the following rights in
regard to this Franchise:
(1) To repeal the franchise for substantial
misuse, substantial non -use or failure of Franchisee to
substantially comply with the provisions hereof;
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(2) To require proper and adequate extension
of plant, facilities and service;
(3) To require the maintenance of plant,
facilities and services at the highest practicable standard of
efficiency;
(4) To establish reasonable standards of
service and quality of products and to prevent discrimination in
service or rates;
(5) To require continuous and
nondiscriminatory service to residents in accordance with the
terms of this Franchise throughout the entire period hereof.
(6) To use, control and regulate the use of
city streets, public easements and other public places and the
space above and beneath them.
(7) To impose such other necessary
regulations for the safety, welfare and accommodation of the
public as required by Section 16 -7 of the Pueblo City Charter.
ARTICLE IV
SCOPE OF FRANCHISE
This Franchise confers only the right to provide Cable
Television Services as defined in Article II of this franchise.
Nothing contained herein shall be deemed to authorize the
Franchisee to provide any service or to engage in any business
other than the provision of Cable Television Service.
ARTICLE V
RIGHT OF CITY TO REGULATE
Nothing contained herein shall be construed to limit the
power of the City to regulate the service, rates and charges of
the Franchisee to the extent allowed by law.
ARTICLE VI
FRANCHISE FEES
1. Purpose and Amount of Fee For the use of the
streets and for the purposes of providing revenue with which to
defray the costs of regulation arising out of issuance of the
Franchise and for promoting, assisting and financing public,
educational, and governmental access programming, Franchisee
shall pay franchise fees in the amount prescribed hereinafter.
No portion of said franchise fees shall be considered
reimbursement to the City of its expenses incurred in negotiating
this Franchise.
During the term of Franchise, Franchisee shall pay
to the City an amount equal to five percent (5 %) per year of the
Franchisee's annual Gross Revenue. The billings of the
Franchisee's subscribers shall not include any separate or
itemized notation of the franchise fee. Said fees shall be paid
quarterly, without deduction or offset, no later than forty -five
days after the close of each quarter. Not later than the date of
each payment, Franchisee shall file with the Director of Finance
and with the City Clerk, a written statement certified by an
officer of Franchisee which identifies in detail the sources and
amounts of gross revenues received by Franchisee during the
quarter for which payment is made. The payment herein specified
shall not exempt the Franchisee from any lawful taxation upon its
property including but not limited to, sales and use taxes.
No acceptance of any payment shall be construed as
an accord that the amount paid is, in fact, the correct amount,
nor shall such acceptance of payment be construed as a release of
any claim which the City may have for further or additional sums
payable under the provisions of this Franchise or any ordinance
of the City.
2. Period of Limitation The period of limitation for
recovery of any franchise fee payable to City under this
Franchise shall be six years from the date on which payment by
Franchisee is due.
3. Contract Obligation This Franchise constitutes a
valid and binding contract between Franchisee and the City. In
the event that the franchise fee, or any financial obligation of
Franchisee to the City specified in this Franchise is declared
illegal, unconstitutional or void for any reason by any court or
other proper authority, fees previously paid under the terms of
this Franchise shall be deemed paid pursuant to contract between
the City and Franchisee and Franchisee shall not attempt to
recoup any franchise fees previously paid pursuant to the terms
of this Franchise.
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4. Refund for Overpayment The period of limitation
for recovery of any overpayment made by the Franchisee to the
City shall be twenty -eight (28) months from the date on which the
overpayment was made. The City may request reasonable
installment payments for said overpayment which request shall not
be unreasonably denied. To the extent the City refunds any
overpayment, those overpaid funds shall, within sixty (60) days
of the refund date, be returned to the subscribers who have been
charged and have paid improper amounts of franchise fees. In
instances in which the appropriate subscriber cannot be located,
that portion of the refund will escheat to the City.
5. Interest on Delinquent Payments Any franchise
fees which remain unpaid after the dates specified in this
Article shall be delinquent and shall thereafter accrue interest
at the rate of one and one -half percent (1 -1/2 %) per month until
paid.
ARTICLE VII
GROSS REVENUE CALCULATIONS
For purposes of the gross revenue calculation required
by Article II above, the phrase "arising from or attributable to
operation of the cable television system" shall include:
1. Any activity, product or service which generates
revenue of any type whatsoever and which is offered to the
subscribers of the system by means of the system;
2. Any activity, product or service which is revenue
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producing and is offered to the subscribers of the system by any
medium other than the system including but not limited to direct
mail and home delivery, if the system's subscriber list or any
portion thereof is utilized for purposes of solicitation;
3. Any activity, product or service in the production
or provision of which any of the assets of the system are used,
including but not limited to poles, stanchions, cable, wire,
production facilities, and administrative facilities.
ARTICLE VIII
CERTIFICATION OF FRANCHISE FEE PAYMENTS
Not less than annually, Franchisee shall provide the
City Council with a gross receipts examination by an independent
certified public accountant certifying the accuracy of the
franchise fee payments paid within the preceding twelve (12)
months pursuant to Article VI above. Said certification shall be
consistent with the definition of "gross receipts" set forth in
this Franchise and shall be prepared in accordance with generally
accepted accounting standards as established by the Financial
Accounting Standards Board (FASB).
ARTICLE IX
AUDITING AND FINANCIAL RECORDS
During the term of Franchise, the City may, not more
frequently than once each year, conduct an audit of the books,
records and accounts of the Franchisee for the purpose of
determining whether the Franchisee has paid franchise fees in the
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amounts prescribed by Article VI above. The audit may be
conducted by the City or by an independent certified public
accounting firm retained by the City. If a discrepancy exceeding
three percent (3 %) in payment of the franchise fee is discovered
by the audit, the cost of the audit shall be paid by the
Franchisee. The party conducting the audit shall prepare a
written report containing its findings. The report shall be
filed with the City Director of Finance and mailed to Franchisee.
Franchisee shall make available for inspection by
authorized representatives of the City at reasonable times and
upon reasonable advance notice, its books, accounts, and all
other financial records necessary to enforcement of the
provisions of the Franchise.
ARTICLE X
USE OF STREETS LIMITED
Streets within the City shall not be occupied by or used
by Franchisee except under provisions of this Franchise and as
otherwise available for use by the general public.
ARTICLE XI
USE OF UTILITY POLES
This Franchise shall not be deemed expressly or
impliedly to authorize the Franchisee to utilize poles owned by
any public or private utility which are located within the
streets, without the express consent of the utility, including
City.
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ARTICLE XII
NOTICES
All notices and other writings authorized or required by
the provisions of this Franchise to be mailed shall be deemed to
have been given and served when deposited in the United States
Mail, postage prepaid, and addressed as follows:
City: Director of Public Works
City of Pueblo
211 East "D" Street
Pueblo, Colorado 81003
with a copy to: City Manager
City of Pueblo
1 City Hall Place
Pueblo, Colorado 81003
Franchisee: TCI Cablevision of Colorado, Inc.
620 West 9th Street
Pueblo, Colorado 81003
with a copy to: TCI Cablevision of Colorado, Inc.
Attention: Legal Department
P.O. Box 5630
Denver, Colorado 80217
Any notice or other writing authorized or required by
the provisions of this Chapter to be "filed" shall be deemed
"filed" when received in the business office of the party with
whom such notice or writing is authorized or required to be
"filed."
ARTICLE XIII
A rTmunn T my
It is declared that the provisions of this Franchise are
enacted pursuant to the authority conferred by the Pueblo City
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Charter, Article XX of the Colorado Constitution, Federal law,
including the Cable Act and pursuant to the police powers
conferred by Article XX, Section 6 of the Colorado Constitution
and C.R.S. § 31 -15 -401 for the promotion and protection of the
peace, health, safety, and general welfare of the citizens of the
City.
ARTICLE XIV
POLICE POWERS NOT LIMITED
All ordinances of general application, including zoning
and other land use ordinances, building, electrical, plumbing and
mechanical codes, now in existence or hereafter enacted by the
City shall be fully applicable to the exercise of this Franchise,
and Franchisee shall comply therewith. In the event of a
conflict between the provisions of this Franchise and the
provisions of such an Ordinance, the provisions of the Ordinance
shall prevail.
ARTICLE XV
COMMUNICATIONS WITH REGULATORY AGENCIES
Copies of all petitions, applications, communications,
and reports submitted by Franchisee to the FCC or any other
Federal or State regulatory commission or agency having
jurisdiction in respect to any matters which may impact the
City's rights or obligations with regard to this franchise, shall
be mailed simultaneously to the City Clerk. Copies of responses
or any other communications from the regulatory agencies to
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Franchisee in regard to such matters likewise shall be mailed
immediately on receipt to said Clerk.
ARTICLE XVI
TERM OF FRANCHISE
The term of this Franchise shall be twenty (20) years.
ARTICLE XVII
RENEGOTIATION OF FRANCHISE TERMS FOR PURPOSE OF AMENDMENT
During the calendar years 2000 and 2006 the City and
Franchisee shall, upon notice of either, negotiate in good faith
changes in the terms of this Franchise as related to Service
Offerings, Availability of Access Facilities, Public, Educational
and Government Access, and System Capability and Standards. By
mutual consent other terms of the Franchise may be subject to
negotiation pursuant to this Article. Any changes to the
Franchise which result from the procedure set forth in this
Article shall be considered an amendment of the Franchise, but
shall not be considered a renewal of the Franchise. Failure of
the parties to negotiate in good faith shall constitute
substantial violation of the terms of this Franchise.
ARTICLE XVIII
AVAILABILITY OF SERVICE
1. Franchisee shall make available equal and
nondiscriminatory cable television service, subject only to a
reasonable construction schedule established by Franchisee with
consent of the City, to all dwelling units within the service
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I R VI
area established by this Franchise including all annexations. As
annexations occur, Franchisee will file a construction plan which
details the plans for provision of service to the annexed area.
Such plans must be filed within thirty (30) days of annexation
and are subject to City approval. Notwithstanding the provisions
of this Article, Franchisee shall be under no obligation to
provide cable service to the inhabitants of apartments,
condominiums or other multiple - family residential units to which
Franchisee is denied access by the owner or manager thereof.
2. Franchisee shall be excused from making cable
television services available to a particular dwelling unit
within the Service Area if that dwelling unit is situated at
least three hundred (300) feet from another dwelling unit and
making service available to the dwelling unit would require an
aerial or underground extension of cable in excess of three
hundred (300) feet from an otherwise existing aerial or
underground trunk cable. The sole purpose of this exception is
to relieve Franchisee from providing service to a dwelling unit
under circumstances wherein extension of the Cable Television
System would constitute an excessive burden, and occupants of a
dwelling unit within the area would be deprived of services as a
result of the relief. Franchisee shall not be entitled to relief
under this Section unless it shows that it would not be
reasonable to locate cable in such a manner as to be within the
distance limitation prescribed by this Section.
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111111 !11111111 �
ARTICLE XIX
SERVICE OFFERINGS
1. Franchisee shall at a minimum offer the following
programming as part of its Basic Cable Service:
Four Denver rebroadcast channels, all Colorado Springs
over the air channels, all Pueblo over the air channels and news,
sports, children's programming, music video, country /western,
cultural, super stations, general interest, audio background
music and local access programming on no less than twenty -five
channels.
2. The over the air channels set forth herein shall be
offered until retransmission fees are required to be paid for
such channels. In the event retransmission fees are required, if
Franchisee reaches agreement with the owners of the originating
channels regarding retransmission fees it shall offer the over
the air channels as part of its Basic Cable Service.
3. If nonduplication restrictions on rebroadcast
channels are enforced to such extent that Franchisee in its
reasonable business judgment determines that a particular
rebroadcast channel has insufficient value to justify offering
said channel, it may replace said channel with such reasonable
programming as it determines.
4. The Franchisee may not provide any premium service
for which the subscriber is charged unless the subscriber
consents to the charge. For the purpose of this Franchise
consent is a positive act. Consent is not obtained if a
subscriber is charged for a premium service unless he informs the
Franchisee that he does not want the service. Franchisee retains
the right to rearrange the levels of service or add programming
to the existing levels of service, and increase or reduce the
charge for such, except to the extent restricted by this
franchise, state or federal law or lawful city ordinances
pursuant to Article V of this Franchise.
ARTICLE XX
OBSCENE AND UNPROTECTED BROADCASTS
Franchisee shall not broadcast material which is obscene
or otherwise unprotected by the Constitution of the United
States. Upon the request of a subscriber, the Franchisee shall
provide (by sale or lease) a device by which the subscriber can
prohibit viewing of a particular cable service during periods
selected by that subscriber.
ARTICLE XXI
SYSTE CAPABILITY AND STANDARDS
1. General Capability The Cable Television System
shall, at minimum:
a. Relay to subscriber terminals those broadcast
signals required by the FCC;
b. Distribute in color all television signals
which it receives in color;
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C. Make available at reasonable charge upon
request by any subscribers who receive channels showing premium
services and pay per view events, a lockout device which prevents
the unauthorized viewing of such channels;
d. Make available to subscribers at reasonable
charge, upon request, an RF switch (an A -B switch) permitting
conversion from cable to antenna reception; and
e. Have a present, activated capacity of four
hundred fifty (450) megahertz throughout the majority of the
system, but not less than three hundred thirty (330) megahertz,
in any location within the Franchise Area.
f. Within five (5) years of the effective date of
this Franchise, Franchisee will complete a system -wide
construction program utilizing installation of a fiber -optic
backbone system with a then - present capacity of five hundred
fifty (550) megahertz throughout the system capable of
accommodating 75 video channels expandable to 150 channels using
digital fiber compression. Activation of additional channels
shall be consistent with community needs and available
programming.
2. Emergency Override Capability In case of an
emergency or disaster, the Franchisee shall, upon request of
City, make available its facilities for City to provide emergency
information and instructions during the emergency or disaster
period. City shall hold Franchisee, its employees, officers and
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assigns harmless from any claims arising out of the emergency use
of its facilities by City, including but not limited to,
reasonable attorneys' fees and costs.
3. Plans and Specifications Franchisee shall provide
to City detailed plans for the Cable Television System and for
any future extensions of said System. The primary purpose of
providing said plans relates to the location of facilities. All
construction relating to the Cable Television System shall be
performed by Franchisee in compliance with said plans submitted
to and approved by the City. Upon completion, the applicant
shall file "as- built" plans with the City showing the detailed
location of all underground cable plant.
4. Technical Stand ards. Franchisee shall construct,
install and maintain its Cable Television System in a manner
consistent and in compliance with all applicable laws,
ordinances, construction standards, governmental requirements,
and technical standards equivalent to those established by the
FCC. Franchisee shall provide to the City Council, upon request,
written reports of annual proof of performance tests conducted
pursuant to the FCC standards and requirements.
a. Franchisee shall at all times comply with the
National Electrical Safety Code (National Bureau of Standards);
National Electrical Code (National Bureau of Fire Underwriters);
Applicable FCC and other Federal, State and local regulations;
and lawful codes and ordinances of the City.
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b. The Cable Television System shall not endanger
or interfere with the health or safety of persons or property
within the City where Franchisee may have equipment located.
C. All working facilities, conditions, and
procedures used or occurring during construction of the Cable
Television System shall comply with the standards of the
Occupational Safety and Health Administration.
d. Construction, installation, repair and
maintenance of the Cable Television System shall be performed in
an orderly and workmanlike manner and in close coordination with
public and private utilities serving the City. All construction,
installation, repair and maintenance shall follow accepted
construction procedures and practices.
e. All cable wires shall be installed, where
possible, parallel with electric and telephone lines, and
multiple cable configurations shall be arranged in parallel and
bundled with due respect for engineering considerations.
f. Any antenna structure used in the Cable
Television System shall comply with construction, marking and
lighting of antennae structures required by the United States
Department of Transportation and any requirements promulgated by
the State of Colorado.
g. RF radiation shall be measured adjacent to any
proposed or existing aeronautical navigation or communication
radio sites to prove no interference to air navigational
reception.
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5. Service to the Hearing Impaired The Franchisee
shall offer service suitable to meet the needs of the hearing
impaired. In meeting this obligation, Franchisee shall provide
information to subscribers regarding availability and
installation of equipment which facilitates reception of basic
cable service and expanded basic service by hearing impaired
individuals. If after receiving information from Franchisee
regarding availability and installation of equipment, subscriber
desires that Franchisee provide and /or install same, Franchisee
shall do so for a reasonable charge.
ARTICLE XXII
PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
1. Beginning January 1, 1992, one channel shall be
specially designated a public, educational and governmental
( "PEG ") access channel. The PEG access channel shall be for use
by appropriate educational institutions, the public and the City
of Pueblo. The PEG channel shall be under the supervision of
Franchisee or its designee, which shall be responsible for the
coordination of all programming on the channel. For purposes of
this Article, Franchisee's designee shall be a nonprofit entity
or the designee of nonprofit entities subject to approval by the
City Manager. The City of Pueblo shall have the right to use the
channel at any time it determines in its sole discretion that an
emergency exists such that immediate use of the channel for City
purposes is appropriate.
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2. Beginning January 1, 1992, access by tape insertion
will be provided at Franchisee's headquarters for the purpose of
accommodating PEG needs on the single channel available for PEG
access.
3. By September 1, 1992 Franchisee or its designee
shall, in conjunction with appropriate educational institutions,
establish reasonable rules and procedures designed to promote
utilization of PEG access programming. These rules and
procedures are subject to approval of the City Manager, which
approval shall not be unreasonably withheld. Franchisee shall
cablecast such public, educational and governmental access
programming as shall be provided to the Franchisee pursuant to
this Article.
4. Beginning no later than September 1, 1992,
Franchisee will provide and make available one (1) location for
origination of PEG access programming by microwave. This
requirement is subject only to good faith efforts to meet
technical and licensing requirements for microwave transmissions,
assuming the availability of appropriate line -of- sight.
5. No later than December 31, 1996, there will be one
designated public channel, one designated educational channel and
one designated governmental channel. In addition, whenever a
designated PEG access channel is in use for access purposes with
first -run programming during fifty percent (50 %) of the hours
between 10:00 a.m. and 10:00 p.m. during any consecutive ten (10)
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week period and there is a demand for use of an additional
channel for the same purpose, Franchisee shall, within ninety
(90) days following a request by the City Manager, provide a new
specially designated access channel for the same purpose. In no
event will the provisions of this Article require Franchisee to
make available more than a maximum of six (6) PEG channels. It
is the intent of City and Franchisee that PEG access will
directly correlate to community needs and available support. If
an additional channel in excess of the three (3) initial PEG
channels is designated for PEG access, but after one (1) year,
said channel is not programmed at least twenty -five percent (25 %)
of the hours between 10:00 a.m. and 10:00 p.m. with first -run
programming, it will revert back to Franchisee's use until such
time as the need for an additional channel is demonstrated as set
forth in this Article.
6. By December 31, 1996, Franchisee will make
available facilities at two (2) different locations for
originating PEG programming. Franchisee will provide the hard-
wire drop from the agreed upon PEG sites to Franchisee's head
end.
7. Use of facilities for public, educational and
governmental access to the cable television system pursuant to
this Article shall be made without rental or any other charge
except reasonable damage deposits.
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ARTICLE XXIII
AVAILABILITY OF ACCESS FACILITIES
Consistent with the provisions of Article XXII, use of
facilities for public, educational and governmental access to the
Cable Television System pursuant to Article XXII above shall be
made available by Franchisee, without rental, or any other charge
whatsoever, except reasonable damage deposits, for use at
reasonable times consistent with community needs in connection
with the production of public, educational and /or governmental
access programming cablecast upon the Cable Television System.
In complying with this Article, Franchisee may make suitable
arrangements with any third party. Said arrangements, however,
will not excuse Franchisee from its duties under this Article.
The Franchisee and /or the appropriate designees shall allow all
persons and entities desiring to cablecast public, educational
and /or governmental access programming to produce programming
upon and electronically interface directly with Cable Television
System of Franchisee so as to effectively cablecast PEG access
programming. However, Franchisee and /or the appropriate
designees shall establish rules and procedures subject to
reasonable approval of the City Manager, designed to promote
utilization of PEG access programming. Franchisee shall accept
and cablecast such PEG programming upon the Cable Television
System as shall be provided to the Franchisee by appropriate
persons and entities pursuant to the rules and procedures
described in this Article.
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ARTICLE XXIV
SUPPORT FOR USE OF ACCESS
Nothing contained in this Franchise shall be construed
to limit the authority of the Franchisee to make payments in
support of the use of public, educational and /or governmental
channels. However, such payments are expressly not a requirement
of this Franchise and shall in no event be considered in the
calculation of franchise fees pursuant to Article VI herein.
ARTICLE XXV
LOCA OFFICE AND SERVICE
Franchisee shall maintain a local business office or
representative, located within the Service Area, which
subscribers may telephone during regular business hours without
incurring added message or toll charges so that CATV maintenance
service shall be promptly available. In addition, provisions
shall be made by Franchisee for receiving and responding to
service calls at all other times. Service calls will be
responded to within two business days.
ARTICLE XXVI
COMPLAINT PROCEDURE
The Franchisee shall establish a procedure for the
prompt investigation and resolution of all complaints received
from subscribers within the Franchise Area. The Franchisee will
inform City and all subscribers of its complaint procedure,
including telephone numbers for registering such complaints and
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request that customers make all complaints to the Franchisee
before directing such complaints to the City. The Franchisee
shall document the nature and resolution of all complaints and
shall retain such documentation for a period of two (2) years
from the date of the complaint. If and when a customer complaint
cannot be resolved, the Franchisee shall respond in writing to
the customer explaining the reasons why a resolution cannot be
reached.
ARTICLE XXVII
FREE DISTRIBUTION SERVICES
Franchisee shall install, operate, and maintain, free of
charges and liens, facilities for reception of its cable televi-
sion distribution services through one basic cable service outlet
at each of the following upon request:
1. At each public college, university, or community
college, and each public elementary and secondary school within
the City that is located within three hundred (300) feet of
Franchisee's system.
2. At each public television station that is located
within 300 feet of Franchisee's system.
3. At each public senior citizen center.
4. At the City Hall and any fire station located
within the corporate bounds of the City.
5. At the public library within the City.
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6. Any of the foregoing may request the installation
of one or more additional outlets, and the same shall be
installed by Franchisee at a charge equal to the time and
material costs thereof. In no event, however, shall Franchisee
charge a monthly service fee to said establishments, regardless
of the number of outlets installed.
7. Franchisee shall be responsible for the maintenance
or replacement of all transmission facilities between the head
end of Franchisee's system and the interior of each facility
described in this Article.
8. Franchisee shall, at its sole expense, provide and
install necessary receiving equipment which will reasonably
enable public television station KTSC to transmit signals from
its campus to the head end of the Cable Television System.
9. Franchisee shall, at the request of public
television station KTSC implement nonduplication procedures for
programs of KRMA -TV (Denver) or other similar distant public
educational television systems.
10. The outlets required by this Article shall not be
used to distribute or sell basic cable service.
ARTICLE XXVIII
VIOLATIONS BY FRANCHISEE
Violation by Franchisee of any of the provisions of this
Franchise caused primarily by circumstances beyond the control of
the Franchisee shall constitute good and sufficient excuse and
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justification for such violations and will preclude the
Franchisee from being in breach of the Franchise. Examples of
circumstances beyond the control of Franchisee which excuse the
Franchisee from a violation and being in breach of the provisions
of this Franchise, when such violations are caused thereby,
include the following: strikes; acts of public enemies; orders by
military authority; insurrections; riots; epidemics; landslides;
lightning; earthquakes; fires; floods; civil disturbances;
explosions; and partial or entire failure of utilities.
Franchisee shall not be excused from any violation of
the provisions of this Franchise except for causes which are
beyond the control of the Franchisee and which have not been
materially contributed to or aggravated by acts or omissions by
the Franchisee.
ARTICLE XXIX
USE OF STREETS - MINIMUM INTERFERENCE
Cable Television System, including wires and
appurtenances, shall be located and installed and maintained so
that none of the facilities endanger the lives or safety of
persons, or unreasonably interfere with any improvements the City
or the State of Colorado may deem proper to make, or
unnecessarily hinder or obstruct the free use of the streets or
other public property. All transmission and distribution
structures, lines and equipment erected or installed by
Franchisee within the City shall be so located as to cause
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minimum interference with the rights and reasonable convenience
of property owners who adjoin any of the streets or other public
property.
ARTICLE XXX
PROVISION OF SERVICE, LOCATION, CONSTRUCTION,
AND MAINTENANCE OF FACILITIES
1. City Review of Construction and Design Except in
emergency circumstances, prior to construction of any facilities
or any plant, building, or similar structure within the City,
Franchisee shall furnish to the City the plans for such
facilities. In addition, Franchisee shall assess and certify to
City (1) that all applicable laws including building and zoning
codes are complied with, (2) that aesthetic and good planning
principles have been incorporated and (3) that adverse impact on
the environment has been minimized.
2. Excavation and Construction All construction,
excavation, maintenance and repair work done by Franchisee shall
be done in a timely and expeditious manner which minimizes the
inconvenience to the City, the general public and individuals.
Franchisee shall be liable for any damage to the City caused by
Franchisee's failing to act timely. All such construction,
excavation, maintenance and repair work done by Franchisee shall
comply with all applicable codes of the City and the State of
Colorado, and the Franchisee shall be responsible for obtaining
all applicable permits and licenses. All public and private
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CJNJNI EJ'II I L
property disturbed by Franchisee's construction or excavation
activities shall be promptly restored by Franchisee at its
expense to substantially its former condition subject to
inspection by the City Director of Public Works or other
designated City official and compliance by Franchisee with
reasonable remedial action required by said official pursuant to
the inspection. Franchisee shall comply with the City Director
of Public Works' requests for reasonable and prompt action to
remedy all damage to private property adjacent to streets or
dedicated easements caused by Franchisee during excavation or
construction work. All such remedial work shall be performed at
Franchisee's expense.
3. Installation and Maintenance of Franchisee
Facilities The installation, maintenance, renovation and
replacement of any facilities by the Franchisee shall be subject
to permitting (and fees related thereto), inspection and approval
of location and timing by the official City representative. Such
regulation shall include, but not be limited to the following
matters: location of facilities in the streets, alleys and
dedicated easements; disturbance and reconstruction of pavement,
sidewalks and surface of streets, alleys, dedicated easements and
driveways. All Franchisee facilities shall be installed so as to
cause a minimal amount of interference with such property.
Franchisee's facilities shall not interfere with any water mains,
sewer mains, municipal telecommunication facilities (except a
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municipal cable television system) or any other municipal or
authorized public use of the City's streets and rights -of -way.
Franchisee shall erect and maintain its facilities in such a way
so as to minimize interference with trees and other natural
features and vegetation. Franchisee shall keep in good working
order all facilities constructed, erected or used within the
City. The Franchisee and all subcontractors shall comply with
all local regulations and ordinances.
4. Obligations Regarding Facilities The Franchisee
shall install, repair, renovate and replace its facilities with
due diligence in a good and workmanlike manner and the
Franchisee's facilities will be of sufficient quality and
durability to provide adequate and efficient Cable Television
Service to the City and its residents. Franchisee shall have the
duty to maintain, install, repair, renovate and replace all
lines, wires, cables, and other facilities up to the customer
premises at no charge or expense to the customer. Nothing herein
shall be construed to provide rights to third parties nor shall
it excuse any individual from liability caused by negligent or
intentional actions.
5. Compliance with City Requirements Franchisee
shall comply with all City requirements regarding curb and
pavement cuts, excavating, digging, construction of overhead
facilities, placement of poles, stanchions and other similar
facilities and related construction activities. Prior to
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commencement of each fiscal year, Franchisee shall provide City
preliminary plans for capital construction. The City's purpose
in receiving said plans is for use in planning City projects and
to coordinate with Franchisee's construction projects. It is
understood that Franchisee shall not be bound to any construction
projections contained in these budgets. Except for emergencies,
all installations will be coordinated with the City's municipal
planning and street improvement programs.
6. Noninterference with Public Works. Franchisee's
facilities shall not unreasonably interfere with City facilities
or other municipal use of streets and rights -of -way, including
but not limited to telecommunication facilities (except a
municipal cable television system) traffic signal lights, water
mains, sewer mains; nor shall Franchisee's facilities
unreasonably interfere in any way with facilities, property and
uses of special districts and other municipal franchisees. All
such facilities shall be installed on both City and private
property so as to cause a minimal amount of interference with
same.
7. City Regulation The City expressly reserves its
right and duty to adopt, from time to time, in addition to the
provisions herein contained, such charter provisions, ordinances
and rules and regulations as may be deemed necessary by the City
to protect the health, safety and welfare of its citizens and
their property.
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ARTICLE XXXI
PERMITS AND APPROVALS
Before occupying, working upon or otherwise utilizing
any street, public place or public easement, Franchisee shall
apply for and obtain any permit, license, authorization or other
approval required by ordinances in force within the City, pay any
fees and post any security required by such ordinances, to the
extent they are generally applicable, and in the course of
constructing, installing, replacing, maintaining and repairing
the Cable Television System, shall comply with all applicable
requirements of such ordinances and any terms or conditions of
encroachment permits, licenses, authorizations or approvals
issued thereunder.
The City shall be authorized to establish generally
applicable special fees payable by Franchisee and other
businesses to defray the costs incurred by the Department of
Public Works of the City in supervising and regulating the
installation, maintenance, repair or replacement of the Cable
Television System within the streets of the City. For the
purpose of promoting safety, reducing inconvenience to the
public, and insuring adequate restoration and repair of the
streets, the Director of Public Works shall be authorized to
issue regulations regarding the conditions under which Franchisee
shall use the City streets pursuant to the provisions of this
Franchise, and Franchisee and its officers, employees,
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contractors and subcontractors shall comply with any and all such
regulations.
Payments made pursuant to the provisions of this Article
shall not be considered franchise fees and shall be in addition
to the payment of franchise fees as required by Article VI of
this Franchise.
ARTICLE XXXII
RESTORATION OF STREETS AND PRIVATE PROPERTY
All disturbance by Franchisee of pavement, sidewalk,
driveways, landscaping or other surfacing of streets shall be
repaired or replaced by Franchisee, at its sole cost, in a manner
approved by the Director of Public Works and in compliance with
the terms of this Franchise and applicable ordinances of the
City, and restored to a condition as good as the condition that
existed before the disturbance occurred. Failure of Franchisee
to substantially restore disturbed property within the public
rights -of -way or easements to City's approval will entitle City
to make the necessary restoration at the Franchisee's sole
expense.
To the extent practicable, Franchisee shall accommodate
the desires of any property owner respecting location within
easements or rights -of -way traversing private land of above
ground boxes or appurtenances constituting a part of the Cable
Television System. Any disturbance of landscaping, fencing or
other improvements upon private property, including private
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property traversed by easements or rights -of -way utilized by
Franchisee, shall be promptly repaired or restored (including
replacement of such valuables as shrubbery and fencing) to the
reasonable satisfaction of the property owner as soon as
practicable at the sole expense of the Franchisee. Franchisee
shall contact the occupants of all private property in advance of
entering such property for the purpose of construction or initial
installation of elements of the system within easements or
rights -of -way traversing such property.
ARTICLE XXXIII
ERECTION OF POLES
This Franchise shall not be deemed to expressly or
impliedly authorize the Franchisee to construct or install poles
or wire - holding structures within streets for the purpose of
placing cables, wires, lines or otherwise, without the written
consent of the City. Such consent shall be given upon such terms
and conditions as the City in its sole discretion may prescribe,
which shall include a requirement that the Franchisee perform all
tree trimming required to maintain the poles clear of
obstructions at the direction of City but at Franchisee's sole
expense.
With respect to any poles or wire - holding structures
which Franchisee is authorized to construct and install within
streets, public places and public easements, a public utility or
public utility district serving the City may, if denied the
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privilege of utilizing such poles or wire - holding structures by
the Franchisee, apply for such permission to the City Council.
If the City Council finds that such use would enhance the public
convenience and would not unduly interfere with the Franchisee's
operations, the City Council may authorize such use subject to
such terms and conditions as it deems appropriate, including
reasonable payments to Franchisee.
ARTICLE XXXIV
UNDERGROUNDING
Except as hereinafter provided, in all areas of the City
where the cables, wires and other like facilities of a public
utility are placed underground, Franchisee shall construct and
install its cables, wires and other facilities underground at its
sole expense. Amplifier boxes and pedestal mounted terminal
boxes may be placed above ground if required by existing
technology, but said amplifier boxes and terminal boxes shall be
of such size and design and shall be so located as not to be
unsightly or unsafe. With respect to any cables, wires and other
like facilities constructed and installed by Franchisee above
ground, the Franchisee shall, at its sole expense, reconstruct
and reinstall such cables, wires or other facilities underground
pursuant to any project under which the cables, wires or other
facilities of a public utility or public utility district are
required to be placed underground within an area.
ARTICLE XXXV
RELOCATION
If during the term of this Franchise the City, a public
utility, a public utility district, a public water company or
water district, a public sanitation district, a public drainage
district or any other similar special district, elects to alter,
repair, realign, abandon, improve, vacate, reroute or change the
grade of any street or to replace, repair, install, maintain, or
otherwise alter any above ground or underground cable, wire,
conduit, pipe, line, pole, wire - holding structure, structure, or
other facility utilized for the provision of utility or other
services or transportation of drainage, sewage or other liquids
or gases, the Franchisee shall, except as otherwise provided, at
its sole expense, remove or relocate its poles, wires, cables,
underground conduits, manholes and any other facilities which it
has installed. Upon request of City, as a part of the relocation
of facilities, Franchisee shall underground all overhead wires,
cables and other like facilities. If such removal or relocation
is required within a subdivision in which all utility lines,
including those for the Cable Television System, were installed
at the same time, the entities relocating their facilities may
decide among themselves who is to bear the cost of relocation;
provided that the City shall not be liable to Franchisee for such
costs. Regardless of who bears the costs, Franchisee shall take
action to remove or relocate at such reasonable time or times as
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are directed by the agency or company undertaking the work.
Reasonable advance written notice shall be mailed to the
Franchisee advising the Franchisee of the date or dates removal
or relocation is to be undertaken.
ARTICLE XXXVI
TREE TRIMMING
Franchisee, its officers, employees, contractors,
subcontractors or others acting pursuant to its direction, shall
not remove or trim any tree or portion thereof (either above, at
or below ground level) which is located within a street without
the prior written approval of the Director of Public Works of the
City. Such approval may be given or withheld upon such
reasonable terms and conditions as the Director of Public Works
deems appropriate. Franchisee shall be responsible for and shall
indemnify, defend and hold harmless the City and its officers and
employees from and against any and all claims, liability,
judgments, damages or losses arising out of or resulting from the
removal, trimming, mutilation of or any injury to any tree or
trees caused by the Franchisee or its officers, employees,
contractors or subcontractors.
ARTICLE XXXVII
MOVEMENT OF BUILDINGS
Franchisee shall, upon request by any person holding a
building moving permit, license or other approval issued by the
City or State, temporarily remove, raise or lower its wires to
.I
permit the moving of buildings. The expense of such removal,
raising or lowering shall be paid by the person requesting same,
and Franchisee shall be authorized to require such payment in
advance. Franchisee shall be given not less than two (2)
business days oral or written notice to arrange for such
temporary wire changes. If the request to raise or lower wires
to permit the moving of buildings is made by the City for a
municipal purpose, the removal, raising or lowering shall be at
the sole expense of the Franchisee.
ARTICLE XXXVIII
Upon expiration and nonrenewal or termination of this
Franchise pursuant to state or federal law, if neither City nor
another cable system operator purchases the Cable Television
System, Franchisee may, and upon request of City shall, remove
from the streets any underground cable which has been installed
in such a manner that it can be removed without trenching or
other opening of the streets. The Franchisee shall not remove
any underground cable or conduit which requires trenching or
other opening of the streets except as hereinafter provided. The
Franchisee shall remove, at its sole cost and expense, any
underground cable or conduit by trenching or opening of the
streets as ordered by the City Council based upon a
determination, in the sole discretion of the Council, that
removal is required in order to eliminate or prevent a hazardous
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condition. Any order by the City Council to remove cable or
conduit shall be mailed to the Franchisee not later than thirty
(30) calendar days following the date of expiration of the
Franchise. Franchisee shall file written notice with the City
Clerk not later than thirty (30) calendar days following the date
of the expiration or termination of the Franchise of its
intention to remove cable and a schedule for removal by
location. The schedule and timing of removal shall be subject to
approval and regulation by the Director of Public Works of the
City. Removal shall be completed not later than twelve (12)
months following the date of expiration of the Franchise. Poles,
underground cable, conduit and other facilities in the streets
which is not removed shall be deemed abandoned and title thereto
shall be vested in the City.
Upon expiration and nonrenewal or termination of
Franchise subject to applicable federal or state law, and if
neither the City nor another cable system operator purchases the
System, the Franchisee, at its sole expense, shall, unless
relieved of the obligation by the City, remove from the streets
all above ground elements of the Cable Television System,
including but not limited to amplifier boxes, pedestal mounted
terminal boxes, and cable attached to or suspended from poles,
which are not purchased by the City or its assignee.
The Franchisee shall apply for and obtain such permits,
licenses, authorizations or other approvals and pay such fees and
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deposit such security as required by applicable ordinance of the
City, shall conduct and complete the work of removal in
compliance with all such applicable ordinances, and shall restore
the streets to the same condition they were in before the work of
removal commenced. The work of removal shall be completed not
later than one (1) year following the date of expiration of the
Franchise.
ARTICLE XXXIX
ENFORCEMENT
Upon a determination that the Franchisee has committed
an act or omission in violation of any of the provisions of this
Franchise, the City Manager shall be authorized to mail written
notice of the exact nature of the violation to the Franchisee.
Not later than thirty (30) calendar days following the mailing of
such notice, if the violation has not been cured Franchisee shall
be authorized to file an appeal with the City Clerk. Franchisee
shall also file a copy of such notice in the office of the City
Manager. The City Council shall hear the appeal and the City and
Franchisee shall be authorized to present oral and documentary
evidence regarding the alleged violation. Formal rules of
evidence shall not be applicable.
If no appeal is filed and the Franchisee has failed to
cure within thirty (30) calendar days following mailing of the
notice, or if an appeal is filed and denied and if within ten
(10) calendar days following mailing to the Franchisee of the
-43-
order denying the appeal the Franchisee has failed to correct the
violation, City may take corrective action directly or through an
outside entity. In such event, the Franchisee shall be liable
for the full amount of any charges made for such corrective
action, including salary and benefit costs of any public
employees assigned to take such corrective action, and the costs
of material, supplies and goods utilized in taking such
corrective action.
The provisions of this Article shall not be construed in
such a way as to relieve the Franchisee from liability for any
damages which may arise out of and be proximately caused by a
breach by the Franchisee of any of the provisions of this
Franchise.
ARTICLE XL
SYSTEM OWNERSHIP
Legal and equitable title to the Cable Television
System, as between City and Franchisee, shall be vested in the
Franchisee.
ARTICLE XLI
NONDISCRIMINATORY SERVICES
Services provided by Franchisee through its Cable
Television System within the Franchise Area shall be offered upon
nondiscriminatory terms to subscribers and users, and shall not
differ based upon geographical location, income levels, or the
racial or ethnic composition of any areas within the service
-44-
territory. The provisions of this Article shall not prohibit
Franchisee from offering services in rate tiers or upon a
promotional, bulk sales or "test marketing" basis.
ARTICLE XLII
SUBSCRIBER ANTENNAS
Franchisee shall not remove or offer to remove any
potential or existing subscriber antenna, or provide any
inducement for removal as a condition respecting the provision of
service.
ARTICLE XLIII
ANTICOMPETITIVE PRACTICES
This Franchise shall not be deemed expressly or
impliedly to authorize the Franchisee to utilize its Cable
Television System to provide any service in such a manner as to
unlawfully damage any business competitor or other third party or
violate any statutes or regulations of the United States or State
of Colorado. Nor shall the Franchisee, by act or omission,
engage in any anticompetitive practice in violation of any
statutes or regulations of the United States or State of
Colorado. The provisions of this Article shall not confer any
rights upon third parties.
ARTICLE XLIV
MAINTENANCE AND REPAIR
During the term of Franchise, the Franchisee shall
maintain its Cable Television System in good condition, render
-45-
efficient service, make repairs promptly, and interrupt service
only for good cause and for the shortest practicable time.
ARTICLE XLV
PRIVACY
Franchisee and its officers, agents, employees,
contractors and subcontractors, shall respect, refrain from
invading, and will take affirmative action to prevent violation
of the privacy of subscribers served by the Cable Television
System and others.
1. Subscriber data, including names, addresses and
phone numbers, shall not be distributed and used by the
Franchisee for other than the normal conduct of business
activities. Reasonable protection shall be provided by the
Franchisee to avoid access thereto by outside parties and to
protect the right of privacy of subscribers.
2. Access to subscriber data required for providing
two way transmission, including but not limited to automatic
alarm systems, shall be limited to those personnel of the
Franchisee or agencies required for the provision of the
service. Reasonable protection shall be provided by the
Franchisee to avoid access thereto by outside parties and to
protect the right of privacy of subscribers and as otherwise
provided by the Cable Act.
3. Neither the Franchisee nor any other person,
agency, or entity shall tap, or arrange for the tapping or
-11
monitoring of any cable, line, signal input device, or subscriber
outlet or receiver for any purpose whatsoever, except that the
Franchisee may conduct tests of the functioning of the system
where necessary in order to ensure proper maintenance of the
system and to collect performance data for agencies regulating
the quality of signals, and the Franchisee may conduct system-
wide or individually addressed "sweeps" for the sole purpose of
verifying system integrity (including individual security system
integrity), controlling return path transmissions, billing for
pay services, or collecting aggregate data on viewing patterns by
channel. "Tapping" shall mean observing a communications signal
exchange where the observer is neither of the communicating
parties, whether the exchange is observed by visual, aural or
electronic means, for any purpose whatsoever. The provision of
interactive services shall not be construed to be "tapping" or
"monitoring" under this subparagraph.
4. The Franchisee shall not place in any private
residence or in any institution any equipment capable of two -way
communications without the written consent of the subscriber, and
shall not utilize the two -way communications capability of the
system for subscriber surveillance of any kind without the
written consent of the subscriber, specifying how the collected
data will be used and by whom. Tenants who occupy premises
connected to the system shall be deemed to be subscribers within
the meaning of this subparagraph regardless of who actually pays
-47-
for the service. The written consents referenced in this
subparagraph shall be, and shall show on their face that they
are, revocable by the subscriber at any time by written
communication mailed by the subscriber to Franchisee. No penalty
shall be invoked for a subscriber's failure to provide a written
consent or for his or her revocation thereof, and all written
consents shall so state on their face. The Franchisee shall not
make such written consent a condition precedent to receipt by a
subscriber of noninteractive service. The provisions of this
subparagraph shall not be deemed to require consent as a
condition precedent to system -wide or individually addressed
"sweeps" for the sole purpose of verifying system integrity,
controlling return -path transmissions, billing for pay services,
or collecting aggregate data on viewing patterns by channel.
5. No cable, line, wire, amplifier, converter, or
other piece of equipment associated with the Cable Television
System shall be attached to any residence or other property of a
citizen without first securing the written permission of the
owner or tenant of the property. If such permission is later
revoked, and the subscriber, owner or tenant requests, the
Franchisee shall, at its sole expense, remove forthwith all of
the equipment and promptly perform all repair work in a
workmanlike manner and shall be responsible for reasonable
repairs to residences or other property caused by the
installation.
ZIMIC
6. Franchisee or any officer, agent or employee
thereof shall not sell, or otherwise make available, lists of the
names and addresses of its subscribers, or any list which
identifies, by name or otherwise, individual subscriber viewing
habits, to any person, agency, or entity for any purpose
whatsoever; except that the Franchisee shall, upon request,
provide lists of names and addresses of its subscribers to
authorized representatives of the City when the City Council
deems such information necessary for performance of the
regulatory functions of the City Council. Names and addresses of
subscribers within the possession of the City shall not be
subject to public inspection or review.
7. Franchisee may release the number of subscribers
but only as a total number and as a percentage of the potential
subscribers within the service area. When indicating the number
of subscribers viewing a particular channel, Franchisee shall
indicate only the total number of subscribers viewing during the
relevant time and the percentage of all subscribers which they
represent, but not the identity of any specific subscriber.
8. The Franchisee shall supervise and monitor all
polls in which responses are received through the Cable
Television System, and shall adopt and enforce measures which
ensure that personally identifiable information concerning a
subscriber, including his or her viewing habits and responses to
the inquiry or inquiries, is not used by any third party,
including the party sponsoring the poll except to compile and
present nonpersonally identifiable information.
9. Franchisee shall not tabulate any test results, nor
permit the use by the system of such tabulation, which would
reveal the commercial product preferences or opinions of
individual subscribers, members of their families or their
invitees, Companies or employees, without advance written
authorization by the subscriber.
ARTICLE XLVI
AFFIRMATIVE ACTION
Franchisee shall not discriminate in employment or
selection of contractors or subcontractors on the basis of race,
color, religion, national origin, age, marital status or
gender. Franchisee shall comply with the Equal Employment
Opportunity Regulations promulgated by the FCC, and all
applicable Federal and State statutes and regulations and
ordinances of the City.
ARTICLE XLVII
GUARANTEE AND INSURANCE
1. Guarantee Franchisee shall at all times during
the term of this Franchise maintain in full force and effect a
corporate surety bond issued by a qualified bonding company in
the amount of $500,000, effective for the entire term of the
franchise, except as otherwise agreed by the City. In the event
Franchisee shall fail to comply with any one or more of the
-50-
provisions of the Franchise, whether or not the Franchise is
terminated, there shall be recoverable under the corporate surety
bond any damages suffered by the City as a result thereof,
including but not limited to, the full amount of any liquidated
damages, delinquent franchise fees, compensation and costs of
repairing or completing the Cable Television System, and the cost
of removal or abandonment of property and repair of streets and
other public or private improvements. Said corporate surety bond
shall not operate as a limitation upon the recovery of damages
suffered by the City, nor shall it limit the ability of City to
recover damages from any proper party. In lieu of a surety bond,
Franchisee may substitute a "Guarantee in Lieu of Bond" executed
by TCI, Inc., a Delaware corporation, in substantially the form
set forth in Attachment A hereto.
Neither the provisions of this section nor any
damages recovered thereunder shall be construed to excuse
faithful performance by the Franchisee or to limit the liability
of Franchisee under the Franchise for damages, either to the full
amount of the corporate surety bond or otherwise. Said corporate
surety bond shall contain a provision which prohibits
cancellation by the bonding company during the term of the
Franchise without substitution of a comparable surety bond
acceptable to the City.
-51-
2. Insurance Requirements Franchisee shall maintain
in full force and effect, at its own cost and expense, during the
term of the Franchise, Comprehensive General Liability Insurance
in the amount of $1,000,000 combined single limit for bodily
injury, property damage and contractual liability. Said
insurance shall designate the City as an additional insured.
Such insurance shall be noncancellable except upon thirty (30)
days prior written notice to City.
ARTICLE XLVIII
INDEMNIFICATION BY FRANCHISEE
The Franchisee shall construct, maintain and operate its
plant, equipment, structures and other facilities in a manner
which provides reasonable protection against injury or damage to
persons or property. Franchisee shall save the City harmless and
indemnify the City from and against all claims, demands,
liability, judgments and loss whatsoever in nature, and reimburse
the City for all its reasonable expenses, including attorney and
expert witness fees, arising out of or resulting directly or
indirectly from the operations of the Franchisee within the City
and the securing of and the exercise by Franchisee of the
franchise rights granted herein, including any third -party
claims, administrative hearings and litigation. None of the City
expenses reimbursed by the Franchisee under this Article shall be
surcharged to the City or its residents.
-52-
Within ten (10) days after receipt of the same by the
City Attorney, the City will provide notice to Franchisee of the
pendency of any claim or action against the City arising out of
the exercise by the Franchisee of its franchise rights.
Franchisee will be permitted, at its own expense, to appear and
defend or to assist in defense of such claim.
ARTICLE XLIX
TRANSFER AND TERMINATION
1. Transfer of System No material part or element of
the Cable Television System shall be voluntarily or involuntarily
sold, transferred, assigned, leased or sublet for any purpose
whatsoever, without the prior written consent of the City, which
consent shall not be unreasonably withheld. This Franchise shall
terminate upon any such sale, transfer, assignment, lease or
subletting of the System without consent of the City.
2. Transfer of Franchise This Franchise shall not,
either in whole or in part, be sold, transferred, assigned,
leased or sublet other than to an affiliate for any purpose
whatsoever; nor shall title thereto, either legal or equitable,
or any right or interest therein, pass to or vest in any party
without the prior written consent of the City and payment of the
Transfer Fee as set forth hereinafter; except, however, no such
consent shall be required for a transfer in trust by mortgage, by
other hypothecation, or any assignment of any rights, title or
interest of Franchisee in the Cable Television System in order to
secure repayment of indebtedness.
-53-
3. Transfer Fee In order that the City may share in
the value this Franchise adds to Franchisee's operations, any
such sale, transfer, assignment, or lease by the Franchisee of
rights under this Franchise, requiring consent of the City shall
require the transferee promptly to pay to the City a transfer
fee. The transfer fee shall be in an amount equal to $15,000 for
each remaining year of the franchise term, but not less than
$50,000. The charging or collection of the transfer fee shall be
conclusively deemed reasonable. The transfer fee shall be paid
within thirty (30) days after the date of sale, transfer,
assignment, or lease. Such transfer fee shall not be recovered
from the City or from the City residents or property owners
through rates of customers in Pueblo or by surcharge of residents
by the transferee or Franchisee.
4. Void Transfers Any sale, transfer, assignment,
lease or sublease of whatever kind or nature made in violation of
the provisions of this Article shall be void.
5. Termination of Franchise The following material
breaches of the obligations of Franchisee under the Franchise
shall constitute nonexclusive grounds for termination of
Franchise by the City:
a. Cumulative unexcused delay in excess of thirty
(30) calendar days in completion of the Cable Television System
in accordance with the construction schedule submitted pursuant
to the provision of this Franchise;
-54-
b. Any violation of subparagraph 1 of this
Article;
C. The failure to make any payments required by
Article VI hereof;
d. Failure of Franchisee to expand and upgrade
the Cable Television System as required by Article XXI (1)(f).
e. Any other act or omission by the Franchisee
which materially violates the terms, conditions or requirements
of this Franchise and which act or omission is not corrected or
remedied within thirty (30) calendar days following mailing to
the Franchisee of written notice of the violation.
6. Commencement of Termination Proceedings. The City
Council shall not determine that this Franchise shall be
terminated upon any ground set forth in this Franchise until a
hearing has been conducted upon the matter. Written notice of
the time, date and place of the hearing shall be mailed to the
Franchisee and the Franchisee's guarantor not later than thirty
(30) days prior to hearing. The notice shall state the reason(s)
for the hearing, describe the basis for termination, and identify
specifically the terms, conditions or requirements with respect
to which the breach has occurred.
The hearing shall be conducted by the City
Council. The costs incurred by the parties for attorneys' fees,
expert witness fees and other expenses shall be borne solely by
the party incurring the costs.
-55-
7. Conduct of Hearing Franchisee and City shall be
entitled to the compulsory attendance of witnesses at the hearing
through exercise of the City Council's subpoena powers. All
witnesses testifying at the termination hearing shall be sworn.
Witnesses shall be subject to direct and cross - examination.
However, formal rules of evidence applicable to the trial of
civil or criminal proceedings in the trial courts of this State
shall not be applicable to the hearing. The provisions of the
Administrative Procedure Act shall not be applicable to such
hearing. The hearing may be continued from time to time.
If the decision by the City Council is that the
Franchise shall be terminated, the Council shall adopt a
resolution which terminates the Franchise and includes the City
Council's decision. The effective date of termination shall be
the date prescribed by the City Council in its sole discretion
but not earlier than thirty (30) days after the date of the
resolution.
8. Alternative Remedies No provision of this Chapter
shall be deemed to bar the City or Franchisee from seeking or
obtaining judicial relief from a violation of any provision of
this Franchise or any ordinance, order, rule, regulation,
requirement or directive of the City. Neither the existence of
other remedies identified in this Franchise nor the exercise
thereof shall be deemed to bar or otherwise limit the right of
the City or Franchisee to recover monetary damages for violation
-56-
of the Franchise, or judicial enforcement of any obligations
thereunder by means of specific performance, injunctive relief or
mandate, or any other judicial remedy at law or in equity.
9. Nonenforcement. Neither Franchisee nor City shall
be relieved of any obligation to comply with any of the provi-
sions of this Franchise or any ordinance, order, rule, regula-
tion, requirement or directive promulgated by the City by reason
of any failure of the City or Franchisee, respectively, or the
officers or employees of either to enforce prompt compliance.
10. Purchase of System by City In the alternative,
and subject to Federal or state law, in the event of termination
of the Franchise either through nonrenewal, surrender, or
forfeiture, the City, at its election and, upon the payment to
Franchisee of a price pursuant to 47 U.S.C. § 547(b)(1) or other
applicable provisions of state or federal law, may purchase the
Cable Television System. The above price shall not include, and
the Franchisee shall not receive, any payment or compensation for
the valuation of any right or privilege under this Franchise. In
the event of dispute, the matter of purchase price for the System
shall be submitted to a panel of three (3) competent appraisers,
one appointed by the City, one appointed by the Franchisee, and
one appointed jointly by the City and the Franchisee, for binding
arbitration.
-57-
ARTICLE L
MISCELLANEOUS PROVISIONS
1. Use of Franchisee Right -of -Way The Franchisee
will permit the City use of right -of -way which it now, or in the
future, owns or has an interest in within the City for the
purposes set forth in and pursuant to the provisions of the
Colorado Park and Open Space Act of 1984, C.R.S. § 29 -7.5 -101, et
seq. provided that the Franchisee shall not be required to make
such an offer in any circumstances where such offer would
interfere with the Franchisee's use of the right -of -way. If the
Franchisee's offer of use is accepted by the City, then any
improvements deemed appropriate by the City and consistent with
the purpose of the Park and Open Space Act of 1984 shall be made
by the City at its expense.
2. Joint Use of Franchisee Facilities. The Franchisee
shall permit use of Franchisee facilities by entities providing
services for the convenience and necessity of the City and its
residents. Such use shall be permitted under the following
conditions:
a. Such grantees shall not be in competition with
the Franchisee.
b. Such grantees shall obtain the permission of
the City and pay to the City and Franchisee appropriate fees, if
any.
Q:f C
C. Such joint use shall not unreasonably inter-
fere with the Franchisee's use of the facilities.
d.
Said
use shall
not create a
safety hazard.
e.
The
Franchisee
shall assume
no liability nor
shall it be put to any additional expense in connection
therewith.
3. Reimbursement of Election Costs City election
costs incurred in the granting of this Franchise or any renewal
thereof, including publication costs, shall be reimbursed to the
City by Franchisee. The parties agree that such costs are
incurred, and the Franchisee's obligation arises, at the time the
City incurs said costs.
4. Severability It is the intent of the parties
hereto that all provisions and sections of this Franchise be
liberally construed to protect and preserve the peace, health,
safety and welfare of the inhabitants of the City and should any
provision or section of this Franchise be held unconstitutional,
invalid or otherwise unenforceable, such holding shall not be
construed as affecting the validity of any of the remaining
provisions or sections, it being the intent that they shall
stand, notwithstanding the invalidity or unenforceability of any
particular provision or section hereof.
5. Filing When not otherwise prescribed herein, all
matters herein required to be filed with the City shall be filed
with the City Manager.
-59-
6. Supersedes Previous Franchises This Franchise
supersedes any previous agreements, licenses, permits or
franchises between the parties as to future rights and remedies
thereunder, but not those existing as of December 31, 1991.
7. Effective Date This Franchise will become
effective on January 1, 1992 upon the majority vote in favor
thereof by the qualified registered electors of the City voting
thereon at the general municipal election to be held on Tuesday,
the 5th day of November, 1991.
8. Franchisee Approval Franchise shall file with the
City Clerk its written approval of this Franchise and of all of
its terms and provisions at least ten (10) days prior to the
general municipal election. Franchisee shall file with the City
Clerk its written ratification thereof within twenty (20) days
after the approval of this Franchise by the qualified registered
electors of the City at said general municipal election. The
acceptance and ratification shall be in form and content approved
by the City Attorney. If Franchisee shall fail to timely file
its written acceptance or ratification as herein provided, this
Franchise shall be and become null and void.
CERTIFICATION
Marian D. Mead, City Clerk of the City of Pueblo, hereby
certifies that Ordinance No. 5705 was disapproved by the qualified
registered electors of the City at the general municipal election
held November 5, 1991 by vote of 7814 in favor of
the Ordinance and 8041 against the Ordinance.
.1
Dated this 8 th day of November, 1991.
[S E A Ll
JBWbhxl009
City lerk
-61-
% %crr rakit): , ctoir, ton
into twit orr(m.
CITY LERK'S FICE
�N/ TO Cablevision of Colorado, Inc. mr
$M 11 RECEIVED
FILED BY: Z,
CIT LE �K'`.s' ..�
May 4, 1992 OFFICE
,w MAY 4 199,20- £-
Mr. Thomas E. Jagger, City Attorney ,\ ?I,I ��.
City of Pueblo
P.O. Box 1427
Pueblo, CO 81.002
Dear Mr. Jagger:
I want to take this opportunity to thank all involved in the completion of
negotiations regarding the renewal of the Company's franchise in Pueblo, Colorado.
We believe that the document is a fair compromise of the many issues that have been
the subject of spirited debate for some time. More importantly, we believe that
the franchise meets the community needs and interests. We look forward to working
with you and other City officials in the future in bringing quality cable television
to the citizens of Pueblo.
The last step in the process of the renewal, from the City's point of view, is an
election. We take this opportunity to continue to clarify our position that the
Company has a valid and current franchise, and that we have commenced renewal
proceedings; however, our views regarding the election process remain unchanged and
we reserve our rights relating to it, including the undertaking of a more formal
renewal proceeding under the Cable Communications Policy Act of 1984 and other
applicable law. We are confident, however, that the election will show strong
support for the Company and its continued operations within the City of Pueblo.
Again, we want to thank you for your efforts in the recent negotiations. If you
have any questions, please do not hesitate to call me.
S
TCI rLEVIT OF 40 , INC.
Jo p R. Stackhouse
ArEa Manager
cc: Scott Higel
Charles Hembree
Brian Shirk
City Government
JRS;tic
1 1 .
GUARANTEE IN LIEU OF BOND
THIS AGREEMENT is made this day of . 199_, between Guarantor,
Franchising Authority and Company (for the purpose of this Agreement. the terms "Guarantor ".
"Franchising Authority and "Company" have the meanings ascribed to them below).
WITNESSETH
WHEREAS. the Franchising Authority has granted a franchise to the Company pursuant to the
Franchise Document (as defined below) to own, operate and maintain a cable television system
( "System "); and
WHEREAS. Tele- Communications. Inc.. a Delaware corporation ( "Guarantor "). is the indirect parent
company of the Company and has a substantial interest in the System and the conduct of the Company
in complying with a Franchise Document. and any and all amendments thereof and any agreements
related thereto. which Franchise Document Is hereby specifically referred to, incorporated herein, and
made a part hereof; and
WHEREAS. section /paragraph /article of the Franchise Document requires the Company,
as principal, to furnish bond or bonds issued to cover the faithful performance of certain of the
Company's obligations under the Franchise Document.
NOW. THEREFORE, Guarantor hereby unconditionally guarantees the due and punctual performance
of any and all obligations of Company contained in section /paragraph /article of the Franchise
Document.
This Agreement, unless terminated. substituted or canceled, as provided herein. shall remain in full
force and effect for the duration of the term of the Franchise Document, or as expressly provided
otherwise in the Franchise Document.
Upon substitution of another Guarantor reasonably satisfactory to the Franchising Authority, this
Agreement may be terminated, substituted or canceled upon thirty (30) days' prior written notice from
Guarantor to the Franchising Authority and the Company.
Such termination shall not affect liability incurred or accrued under this Agreement prior to the effective
date of such termination or cancellation.
Any notices given pursuant to this Agreement shall be addressed to the Guarantor and Franchisee
at P.O. Box 5630, Denver, Colorado 80217, and to the Franchising Authority at
No claim. suit or action u g y under this Agreement b reason of any default of the Company shall be brought
against Guarantor unless asserted or commenced within six (6) months after the effective date of such
termination or cancellation of the Agreement.
IN WITNESS WHEREOF. the Company, Franchising Authority, and Guarantor have set their hands
and seals on the day of 19 -•
DEFINITIONS
(The following terms are defined as indicated below)
Franchising Authority:
Company:
Franchise Document(s):
(describe ordinance. franchise,
permit, etc. and date)
GUARANTOR:
TELE - COMMUNICATIONS INC.
Don F. Fisher
Senior Vice President /Treasurer
tiTf
COMPANY:
BY:
TITLE:
8 l
p FRANCHISING AUTHORITY.
BY:
TITLE:
ATTACHMENT A
355 Union Blvd., Suite 200
Lakewood, Colorado 80228
987 -9552
MCENTRALINC
February 26, 1992
City of Pueblo
Pueblo, Colorado
Dear Sirs:
The attached unaudited statement of operations of TCI Cablevision
of Colorado, Inc., Pueblo, CO system, was reviewed by James A.
Dotson, a Certified Public Accountant. The statement was
prepared from the books and records of TCI Cablevision of
Colorado, Inc., and it presents fairly the results of operations
of the Pueblo, CO system for the year ended December 31, 1991.
S' erely
James A. Dotson, C.P.A.
Vice President
Controller
JAD /kc
Enc.
An Equal Opportunity
��r�® Employer
TCI CABLEVISION OF COLORADO, INC.
Pueblo, CO System
Financial Statements
For the year ended December 31, 1991
(Unaudited)
TCI CABLEVISION OF COLORADO, INC.
Pueblo, CO System
Statement of Operations
For the year ended December 31, 1991
(Unaudited)
REVENUE
Basic service $5,015,168
Premium service 1,672,854
Rental income 414,860
Installation income 166,339
Other income 619,940
Total revenue 7,889,161
OPERATING COSTS AND EXPENSES
Operating expenses 2,075,201
Selling, general and
administrative expenses (Note 1) 2,114,918
Total operating costs and expenses 4,190,119
Net income before interest
expense, taxes, depreciation
and amortization $3,699,042
See accompanying notes to unaudited financial statements.
TCI CABLEVISION OF COLORADO, INC.
Pueblo, CO System
Schedule of Operating, Selling,
General and Administrative Expenses
For the year ended December 31, 1991
(Unaudited)
OPERATING EXPENSES:
Programming costs - CATV
$ 764,589
License fees - Pay TV
662,059
Technical salaries
521,447
Contract labor
113,456
Cablecasting costs
11,192
Freight
5,827
Maintenance and operating materials
45,961
Pole rental (Note 4)
53,647
Service power
38,452
Vehicle expense
45,714
Other rental (Note 4)
4,310
Converter maintenance and service
45,654
Equipment repair
10,129
Self insurance
2,003
Other operating expenses
1,496
Construction costs capitalized
(250,735)
Total Operating Expenses
$2,075,201
SELLING, GENERAL & ADMINISTRATIVE EXPENSES:
Office salaries
$ 395,212
Office supplies
20,044
Bank service charges
23,151
Telephone
33,875
Utilities
8,705
Postage
76,667
Pay TV costs
24,223
Advertising salaries
42,468
Marketing salaries
101,150
Marketing costs and public relations
146,703
Employee benefits
50,730
Dues and subscriptions
9,456
Travel
13,496
Bad debt
108,865
Payroll and general taxes
169,570
Franchise fees
232,399
Copyright fees
192,291
Customer billing costs
78,217
Other general and administrative expenses
82,931
Division overhead (Note 2)
162,838
Administrative services paid to TCI (Note 2)
141,927
Total Selling, General & Admin. Expenses
$2,114,918
TCI CABLEVISION OF COLORADO, INC.
Pueblo, CO System
Notes to Financial Statements
(1) Summary of Significant Accounting Policies
(a) Organization
TCI Cablevision of Colorado, Inc. ( "TCI -CO") was
organized to acquire, develop and operate cable
television systems within the State of Colorado,
including those of the cable television system located
in Pueblo, Colorado and the adjacent county. TCI -CO is
wholly owned by TCI Central, Inc. ( "TCI -C"), an
indirect, wholly -owned subsidiary of
Tele- Communications, Inc. ( "TCI").
The books and records of TCI are maintained in a manner
consistent with its financing and internal operating
needs. Accordingly, the books and records for all of
TCI's cable television systems within the State of
Colorado are combined since all such systems are owned
by one corporation. However, within such books and
records, the operations of certain systems (or groups of
systems) are maintained separately in order to
internally evaluate the results of such operations.
TCI -C has periodic (i.e., quarterly and annual)
reporting requirements with its lenders but "state
subsidiaries" such as TCI -CO have no reporting
requirements to outside organizations. As a result of
the foregoing, a balance sheet has not been provided.
The accompanying statement of operations was prepared,
by necessity, without interest expense, taxes,
depreciation or amortization, which would have required
using estimates and allocations of amounts relating to
TCI -CO. Such financial statements are restricted to the
internal use of the City of Pueblo, Colorado only.
Due to the aforementioned, the accompanying financial
statements do not purport to be indicative of the
results of operations that would be reported for the
cable television system in Pueblo, Colorado had its
books and records been maintained separate and apart
from other cable television systems owned by TCI -CO.
These financial statements should be read in conjunction
with the consolidated financial statements for TCI -C and
subsidiaries (including TCI -CO).
(continued)
TCI CABLEVISION OF COLORADO, INC.
Pueblo, CO System
Notes to Financial Statements
(b) Property and Equipment
The books and records of all of TCI's cable television
systems within the State of Colorado are combined since
all such systems are owned by one corporation. On the
books of TCI -CO, property and equipment is stated at
cost, and depreciation is computed on a straight -line
basis using estimated useful lives of 5 to 15 years for
the cable distribution system and 3 to 40 years for
support equipment and buildings.
Repairs and maintenance are charged to operations, and
renewals and additions are capitalized. At the time of
ordinary retirements, sales, or other disposition of
property, the original cost and cost of removal of such
property are charged to accumulated depreciation, and
salvage, if any, is credited thereto. Gains or losses
are only recognized in connection with the sale of
properties in their entirety.
(c) Franchise Costs
Franchise costs include the difference between the cost
of acquiring cable television systems and amounts
assigned to their tangible assets. Such amounts are
being amortized on the books of TCI -CO on a
straight -line basis over 40 years. Costs incurred by
TCI -CO in obtaining franchises are being amortized on a
straight -line basis over the life of the franchise.
(2) Transactions with TCI
TCI -CO has a management agreement with another subsidiary of
TCI whereby such subsidiary's management provides
administrative services and has assumed managerial
responsibility for cable television systems operation and
construction. As compensation for these services, TCI -CO
pays a monthly calculated on a per subscriber basis and also
pays overhead costs to TCI -C based on TCI -CO's proportionate
share of subscribers. Allocation of such amounts relating to
the cable television system located in Pueblo, Colorado in
the amount of $304,765 are included in the accompanying
financial statements.
TCI -CO purchases certain pay television and other programming
through another TCI subsidiary at TCI's cost. Charges for
such programming relating to the cable television system
located in Pueblo, Colorado were approximately $1,426,648 for
the year ended December 31, 1991 and are included in
operating expenses in the accompanying financial statements.
(continued)
TCI CABLEVISION OF COLORADO, INC.
Pueblo, CO System
Notes to Financial Statements
(3) Income Taxes
TCI -CO is included in the consolidated Federal income tax
return of TCI. Income tax expense for TCI -CO is based on
those items in the consolidated calculation applicable to
TCI -CO. Intercompany tax allocation represents an
apportionment of tax expense or benefit (other than deferred
income taxes) among the subsidiaries of TCI in relation to
their respective amounts of taxable earnings or losses.
The cable television system in Pueblo, Colorado is not
charged for its share of the consolidated tax liability
recorded by TCI -CO. If taxes were recorded, net income in
the accompanying statement of operations would be reduced.
(4) Commitments and Contingencies
The Pueblo, Colorado system has entered into pole rental
agreements and uses certain equipment under lease
arrangements. Rental expense under these arrangements is
recorded in the accompanying statement of operations. Future
minimum lease payments under noncancellable operating leases
were not material.
(5) Subscribers and Plant Miles
The accompanying financial statements include the revenues
and expenses related to operations in the City of Pueblo, as
well as the adjacent county. The following is provided as
supplementary information:
City of Pueblo
Pueblo County Total
Equivalent Basic Subscribers
as of December 31, 1991 22,489 2,130 24,619
Pay Units as of December 31, 1991 23,732 2,292 26,024
Plant Miles as of December 31, 1991 504.7 113.6 618.3